EXHIBIT 10.16
EXECUTION COPY
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is made and entered
into as of October 30, 2003 by and among Keystone Automotive Holdings, Inc., a
Delaware corporation ("Parent"); Keystone Merger Sub, Inc., a Pennsylvania
corporation and a wholly-owned subsidiary of Parent ("Merger Sub"); the
shareholders of Keystone Automotive Operations, Inc., a Pennsylvania corporation
(the "Company"), set forth on Schedule I attached hereto (collectively, the
"Rolling Shareholders"); the entities set forth on Schedule II attached hereto
(collectively, the "Bain Contributors"); the entities set forth on Schedule III
attached hereto (collectively, the "Advent Contributors"); the entities set
forth on Schedule IV attached hereto (collectively, the "Bear Stearns
Contributors"); Randolph Street Partners VI, an Illinois general partnership
("Randolph Street"); Robert S. Vor Broker ("RVB"); and Richard Pointkowski
("RP"). The Rolling Shareholders, the Bain Contributors, the Advent
Contributors, the Bear Stearns Contributors, Randolph Street, RVB and RP are
collectively referred to herein as the "Contributors" and each, individually, as
a "Contributor."
WHEREAS, the parties hereto desire to enter into this Agreement in
order to provide for the issuance by Parent to the Contributors of shares of
Parent Class A Common and shares of Parent Class L Common in exchange for cash
or Company Common Stock pursuant to the terms provided herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
1. Definitions. The following terms are defined as follows:
"Closing" shall have the meaning given to such term in the Merger
Agreement.
"Common Share Merger Consideration" shall have the meaning given to
such term in the Merger Agreement.
"Company Common Stock" means the common stock, par value $0.01 per
share, of the Company.
"Contributed Cash" means, collectively, the cash contributed to Parent
by the Bain Contributors, the Advent Contributors, the Bear Stearns
Contributors, Randolph Street, RVB and RP pursuant to the terms hereof.
"Contributed Shares" means, collectively, the Company Common Stock
contributed to Parent by the Rollover Shareholders pursuant to the terms hereof.
"Credit Agreement" shall have the meaning given to such term in the
Merger Agreement.
"Merger" shall have the meaning given to such term in the Merger
Agreement.
"Merger Agreement" means the Agreement and Plan of Merger, dated as of
August 29, 2003, by and among Parent, Merger Sub, the Company and the other
parties named therein, as amended, restated or otherwise modified from time to
time.
"Parent Class A Common" means the Class A Common Stock, par value
$0.01 per share, of Parent.
"Parent Class L Common" means the Class L Common Stock, par value
$0.01 per share, of Parent.
"Parent Common Shares" means, with respect to any Contributor, the
shares of Parent Class A Common and Parent Class L Common issued to such
Contributor pursuant to this Agreement.
"Paying Agent" shall have the meaning given to such term in the Merger
Agreement.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Stockholders Agreement" means that certain Stockholders Agreement,
dated as of the date hereof, by and among Parent and the stockholders of Parent
parties thereto.
"Surviving Corporation" shall have the meaning given to such term in
the Merger Agreement.
2. Contributions to Parent.
(a) Immediately prior to the Closing, each of the Bain
Contributors shall contribute (the "Bain Contribution") to the capital of
Parent, and Parent hereby accepts as a contribution, cash in the amount set
forth opposite such Bain Contributor's name on Schedule II attached hereto
in the column labeled "Contribution Amount." In exchange for the Bain
Contribution, Parent shall issue to each Bain Contributor the number of
shares of Parent Class A Common and Parent Class L Common set forth
opposite such Bain Contributor's name on Schedule II attached hereto under
the columns labeled "Parent Class A Common" and "Parent Class L Common,"
respectively.
(b) Immediately prior to the Closing, each of the Advent
Contributors shall contribute (the "Advent Contribution") to the capital of
Parent, and Parent hereby accepts as a contribution, cash in the amount set
forth opposite such Advent Contributor's name on Schedule III attached
hereto in the column labeled "Contribution Amount." In exchange for the
Advent Contribution, Parent shall issue to each Advent Contributor the
number of shares of Parent Class A Common and Parent Class L Common set
forth opposite such Advent Contributor's name on Schedule III attached
hereto under the columns labeled "Parent Class A Common" and "Parent Class
L Common," respectively.
(c) Immediately prior to the Closing, each of the Bear Stearns
Contributors shall contribute (the "Bear Stearns Contribution") to the
capital of Parent, and Parent hereby accepts as a contribution, cash in the
amount set forth opposite such
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Bear Stearns Contributor's name on Schedule IV attached hereto in the
column labeled "Contribution Amount." In exchange for the Bear Stearns
Contribution, Parent shall issue to each Bear Stearns Contributor the
number of shares of Parent Class A Common and Parent Class L Common set
forth opposite such Bear Stearns Contributor's name on Schedule IV attached
hereto under the columns labeled "Parent Class A Common" and "Parent Class
L Common," respectively.
(d) Immediately prior to the Closing, Randolph Street shall
contribute (the "Randolph Street Contribution") to the capital of Parent,
and Parent hereby accepts as a contribution, cash in the amount of
$750,000. In exchange for the Randolph Street Contribution, Parent shall
issue to Randolph Street 385,714 shares of Parent Class A Common and 42,857
shares of Parent Class L Common.
(e) Simultaneously with the Closing, RVB shall contribute (the
"RVB Contribution") to the capital of Parent, and Parent hereby accepts as
a contribution, cash in the amount of $1,400,000. In exchange for the RVB
Contribution, Parent shall issue to RVB 720,000 shares of Parent Class A
Common and 80,000 shares of Parent Class L Common.
(f) Simultaneously with the Closing, RP shall contribute
(the "RP Contribution") to the capital of Parent, and Parent hereby accepts
as a contribution, cash in the amount of $500,000. In exchange for the RP
Contribution, Parent shall issue to RP 257,143 shares of Parent Class A
Common and 28,571 shares of Parent Class L Common.
(g) Immediately prior to the Closing, each of the Rolling
Shareholders shall contribute (the "Rolling Shareholders Contribution") to
the capital of Parent, and Parent hereby accepts as a contribution, the
number of shares of Company Common Stock set forth opposite such Rolling
Shareholder's name on Schedule I attached hereto in the column labeled
"Rolled Company Common Stock" having the aggregate value (based on the
Common Share Merger Consideration) set forth opposite such Rolling
Shareholder's name on Schedule I attached in the column labeled "Aggregate
Value." In exchange for the Rolling Shareholders Contribution, Parent shall
issue to each Rolling Shareholder the number of shares of Parent Class A
Common and Parent Class L Common set forth opposite such Rolling
Shareholder's name on Schedule I attached hereto under the columns labeled
"Parent Class A Common" and "Parent Class L Common," respectively.
3. Contribution to Merger Sub. Immediately upon receipt of the
Contributed Cash and the Contributed Shares and immediately prior to the
Closing, Parent shall contribute to the capital of Merger Sub, and Merger Sub
shall accept as a contribution, the Contributed Cash and the Contributed Shares.
Upon receipt of the Contributed Shares by Merger Sub, the Contributed Shares
shall be canceled and retired by the Company without any payment therefor.
4. Covenants. Each of the Rolling Shareholders hereby acknowledges
and agrees that (i) such Rolling Shareholder has not, and will not, surrender,
tender, exchange or
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otherwise dispose of, or direct the surrender, tender, exchange or other
disposition of, his Contributed Shares to the Paying Agent or to any other
person or entity except as provided herein and (ii) notwithstanding anything to
the contrary in the Merger Agreement, such Rolling Shareholder is not entitled
to receive any Common Share Merger Consideration upon the consummation of the
Merger for any of his Contributed Shares.
5. Tax Reporting. The parties hereto intend that the Bain
Contribution, the Advent Contribution, the Bear Stearns Contribution, the
Randolph Street Contribution, the RVB Contribution, the RP Contribution and the
Rolling Shareholders Contribution collectively be treated as a tax-free transfer
under Section 351 of the Internal Revenue Code of 1986, as amended. The parties
hereto agree to file all applicable tax returns consistent with such treatment.
6. Parent Stock. The Parent Class A Common and Parent Class L Common
to be issued hereunder shall be issued in a strip in the proportion of one share
of Parent Class L Common for each nine shares of Parent Class A Common. The cost
of each share of Parent Class A Common issued hereunder is $0.19444444 per share
and for each share of Parent Class L Common issued hereunder is $15.75 per
share.
7. Representations and Warranties by the Contributors. Each
Contributor hereby represents and warrants to Parent that:
(a) the Parent Common Shares to be acquired by Contributor
pursuant to this Agreement will be acquired for its or his own account and
not with a view to, or intention of, distribution thereof in violation of
the Securities Act or any applicable state securities laws, and the Parent
Common Shares will not be disposed of in contravention of the Securities
Act or any applicable state securities laws;
(b) Contributor is sophisticated in financial matters and is
able to evaluate the risks and benefits of the investment in the Parent
Common Shares to be acquired by it or him pursuant to this Agreement;
(c) Contributor is able to bear the economic risk of its or his
investment in the Parent Common Shares to be acquired by Contributor
pursuant to this Agreement for an indefinite period of time because the
Parent Common Shares have not been registered under the Securities Act and,
therefore, cannot be sold unless subsequently registered under the
Securities Act or an exemption from such registration is available;
(d) Contributor has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of the
Parent Common Shares and has had full access to such other information
concerning the Company and its subsidiaries as it or he has requested; and
(e) this Agreement executed by Contributor constitutes the
legal, valid and binding obligation of Contributor, enforceable in
accordance with its terms, and the execution, delivery and performance of
this Agreement by Contributor does not and will not conflict with, violate
or cause a breach of any agreement, contract or instrument to
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which Contributor is a party or any judgment, order or decree to which
Contributor is subject.
8. Representation and Warranty by the Rolling Shareholders. Each
Rolling Shareholder hereby represents and warrants to Parent that such Rolling
Shareholder holds of record and owns beneficially the shares of Company Common
Stock to be contributed by such Rolling Shareholder to Parent pursuant to the
terms of this Agreement, free and clear of any restrictions on transfer (other
than (i) any restrictions under the Securities Act and state securities laws and
(ii) any restrictions under any pledge agreement or other agreement related to
the Credit Agreement, which restrictions shall terminate at Closing), taxes,
security interests, options, warrants, purchase rights, contracts, commitments,
equities, claims, and demands.
9. Stockholders Agreement. The parties hereto acknowledge that the
Parent Common Shares held by the Contributors shall be subject to the terms and
conditions of the Stockholders Agreement and shall be bound by the obligations
and shall be entitled to the benefits set forth therein.
10. Further Assurances. From time to time following the date hereof,
the parties hereto shall execute and deliver such other instruments of
assignment, transfer and delivery (including the delivery by the Rolling
Shareholders to Parent and/or Merger Sub of certificates representing the
Contributed Shares) and shall take such other actions as any other party hereto
reasonably may request in order to consummate, complete and carry out the
transactions contemplated by this Agreement.
11. Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
12. Complete Agreement. This Agreement embodies the complete
agreement and understanding among the parties hereto and supersedes, preempts
and terminates all other prior understandings, agreements or representations by
or among the parties hereto, written or oral, to the extent relating to the
subject matter hereof.
13. Counterparts. This Agreement may be executed (including by
facsimile) in separate counterparts, each of which will be deemed to be an
original and all of which taken together will constitute one and the same
agreement.
14. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors, heirs and assigns.
15. No Third Party Beneficiaries. There are no third party
beneficiaries of this Agreement and nothing in this Agreement, express or
implied, is intended to confer on any
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person other than the parties hereto other than their respective successors,
heirs and assigns, any rights, remedies, obligations or liabilities.
16. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without giving effect to
any rules, principles or provisions of choice of law or conflict of laws.
17. Remedies. The parties hereto acknowledge and agree that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party hereto will have the right to injunctive relief or
specific performance, in addition to all of its other rights and remedies at law
or in equity, to enforce the provisions of this Agreement.
18. Amendments and Waivers. Any provision of this Agreement may be
amended or waived only with the prior written consent of each of the parties
hereto.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Contribution
Agreement as of the date first written above.
KEYSTONE AUTOMOTIVE HOLDINGS, INC.
By: /s/ Stephen M. Zide
-----------------------------------
Name: Stephen M. Zide
Title: President
KEYSTONE MERGER SUB, INC.
By: /s/ David Gross-LOH
-----------------------------------
Name: David Gross-LOH
Title: Vice President
KEYSTONE AUTOMOTIVE OPERATIONS, INC.
By: /s/ Robert S. Vor Broker
-----------------------------------
Name: Robert S. Vor Broker
Title: President
[Bain Signature Page to Contribution Agreement]
BAIN CAPITAL FUND VII,LLC
By: /s/ Stephen M. Zide
---------------------------------------
Name: Stephen M. Zide
Title: President
BAIN CAPITAL FUND VII, LLC
By: Bain Capital Fund VII, L.P.
Its: Sole Member
By: Bain Capital Partners VII, L.P.
Its: General Partner
By: Bain Capital Investors, LLC
Its: General Partner
By: /s/ Stephen M. Zide
---------------------------------------
Name: Stephen M. Zide
Title: Managing Director
BAIN CAPITAL VII COINVESTMENT FUND, LLC
By: Bain Capital VII Coinvestment Fund, L.P
Its: Sole Member
By: Bain Capital Partners VII, L.P.
Its: General Partner
By: Bain Capital Investors, LLC
Its: General Partner
By: /s/ Stephen M. Zide
---------------------------------------
Name: Stephen M. Zide
Title: Managing Director
BCIP ASSOCIATES III, LLC
BY: BCIP Associates III
Its: Manager
By: Bain Capital Investors, LLC
Its: Managing Partner
By: /s/ Stephen M. Zide
---------------------------------------
Name: Stephen M. Zide
Title: Managing Director
[Bain Signature Page to Contribution Agreement Continued]
BCIP T ASSOCIATES III, LLC
By: BCIP Trust Associates III
Its: Manager
By: Bain Capital Investors, LLC
Its: Managing Partner
By: /s/ Stephen M. Zide
----------------------
Name: Stephen M. Zide
Title: Managing Director
BCIP ASSOCIATES III-B, LLC
By: BCIP Associates III-B
Its: Manager
By: Bain Capital Investors, LLC
Its: Managing Partner
By: /s/ Stephen M. Zide
----------------------
Name: Stephen M. Zide
Title: Managing Director
BCIP T ASSOCIATES III-B, LLC
By: BCIP Trust Associates III-B
Its: Manager
By: Bain Capital Investors, LLC
Its: Managing Partner
By: /s/ Stephen M. Zide
----------------------
Name: Stephen M. Zide
Title: Managing Director
[Advent Signature Page to Contribution Agreement]
GLOBAL PRIVATE EQUITY IV LIMITED
PARTNERSHIP
By: Advent International Limited
Partnership
Its: General Partner
By: Advent International Corporation
Its: General Partner
By: /s/ Robert E. Taylor, Jr.
-----------------------------------
Name: Robert E. Taylor, Jr.
Title: Vice President
ADVENT PARTNERS II LIMITED PARTNERSHIP
By: Advent International Corporation
Its: General Partner
By: /s/ Robert E. Taylor, Jr.
-----------------------------------
Name: Robert E. Taylor, Jr.
Title: Vice President
ADVENT PARTNERS GPE-IV LIMITED
PARTNERSHIP
By: Advent International Corporation
Its: General Partner
By: /s/ Robert E. Taylor, Jr.
-----------------------------------
Name: Robert E. Taylor, Jr.
Title: Vice President
[Bear Stearns Signature Page to Contribution Agreement]
BEAR STEARNS MERCHANT BANKING
PARTNERS II, L.P.
By: Bear Stearns Merchant Capital II,
L.P.
Its: General Partner
By: JDH Management LLC
Its: Special Limited Partner
By: /s/ John D. Howard
-----------------------------------
Name: John D. Howard
Title: Senior Managing Director
BEAR STEARNS MERCHANT BANKING
INVESTORS II, L.P.
By: Bear Stearns Merchant Capital II,
L.P.
Its: General Partner
By: JDH Management LLC
Its: Special Limited Partner
By: /s/ John D. Howard
-----------------------------------
Name: John D. Howard
Title: Senior Managing Director
BEAR STEARNS MB-PSERS II, L.P.
By: Bear Stearns Merchant Capital II,
L.P.
Its: General Partner
By: JDH Management LLC
Its: Special Limited Partner
By: /s/ John D. Howard
-----------------------------------
Name: John D. Howard
Title: Senior Managing Director
[Bear Stearns Signature Page to Contribution Agreement Continued]
THE BSC EMPLOYEE FUND III, L.P.
By: Bear Stearns Merchant Capital II,
L.P.
Its: General Partner
By: JDH Management LLC
Its: Special Limited Partner
By: /s/ John D. Howard
-----------------------------------
Name: John D. Howard
Title: Senior Managing Director
THE BSC EMPLOYEE FUND IV, L.P.
By: Bear Stearns Merchant Capital II,
L.P.
Its: General Partner
By: JDH Management LLC
Its: Special Limited Partner
By: /s/ John D. Howard
-----------------------------------
Name: John D. Howard
Title: Senior Managing Director
[Randolph Street Signature Page to Contribution Agreement]
RANDOLPH STREET PARTNERS VI
By: /s/ Eunu Chun
-----------------------------------
Name: Eunu Chun
Title: Managing Director
[Individual Shareholder Signature Page to Contribution Agreement]
/s/ Richard Pointkowski
----------------------------------------
RICHARD POINTKOWSKI
/s/ Bryant P. Bynum
----------------------------------------
BRYANT P. BYNUM
/s/ Philip Avvisato
----------------------------------------
PHILIP AVVISATO
/s/ Anthony Fordiani
----------------------------------------
ANTHONY FORDIANI
/s/ Patrick Judge, Sr.
----------------------------------------
PATRICK JUDGE, SR.
/s/ Richard Kovalick
----------------------------------------
RICHARD KOVALICK
/s/ Lawrence Montante
----------------------------------------
LAWRENCE MONTANTE
/s/ James Ruby
----------------------------------------
JAMES RUBY
/s/ Robert S. Vor Broker
----------------------------------------
ROBERT S. VOR BROKER
SCHEDULE I
Rollover Shareholders
---------------------
- --------------------------------------------------------------------------------
Rolled
Rolling Company Aggregate Parent Class A Parent Class L
Shareholder Common Stock Value Common Common
- --------------------------------------------------------------------------------
James Ruby 54,079.38 $ 500,000 257,143 28,571
- --------------------------------------------------------------------------------
Richard Kovalick 140,606.40 $ 1,300,000 668,571 74,286
- --------------------------------------------------------------------------------
Bryant P. Bynum 75,711.14 $ 700,000 360,000 40,000
- --------------------------------------------------------------------------------
Philip Avvisato 54,079.38 $ 500,000 257,143 28,571
- --------------------------------------------------------------------------------
Anthony Fordiani 54,079.38 $ 500,000 257,143 28,571
- --------------------------------------------------------------------------------
Patrick Judge, Sr. 140,606.40 $ 1,300,000 668,571 74,286
- --------------------------------------------------------------------------------
Lawrence Montante 54,079.38 $ 500,000 257,143 28,571
- --------------------------------------------------------------------------------
SCHEDULE II
Bain Contributors
-----------------
- --------------------------------------------------------------------------------
Contribution Parent Class A Parent Class L
Name of Bain Contributor Amount Common Common
- --------------------------------------------------------------------------------
Bain Capital Fund VII, LLC $ 112,189,375.00 57,697,393 6,410,822
- --------------------------------------------------------------------------------
Bain Capital VII Coinvestment
Fund, LLC $ 18,525,000.00 9,527,143 1,058,572
- --------------------------------------------------------------------------------
BCIP Associates III, LLC $ 2,654,684.00 1,490,168 150,154
- --------------------------------------------------------------------------------
BCIP T Associates III, LLC $ 2,896,980.00 1,364,939 167,084
- --------------------------------------------------------------------------------
BCIP Associates III-B, LLC $ 652,668.00 336,095 37,290
- --------------------------------------------------------------------------------
BCIP T Associates III-B, LLC $ 131,293.00 67,119 7,507
- --------------------------------------------------------------------------------
SCHEDULE III
Advent Contributors
-------------------
- --------------------------------------------------------------------------------
Contribution Parent Class A Parent Class L
Name of Advent Contributor Amount Common Common
- --------------------------------------------------------------------------------
Global Private Equity IV, LP $ 19,585,000.00 10,072,286 1,119,144
- --------------------------------------------------------------------------------
Advent Partners II LP $ 167,000.00 85,886 9,543
- --------------------------------------------------------------------------------
Advent Partners GPE-IV LP $ 248,000.00 127,543 14,171
- --------------------------------------------------------------------------------
SCHEDULE IV
Bear Stearns Contributors
-------------------------
- --------------------------------------------------------------------------------
Name of Bear Stearns Contribution Parent Class A Parent Class L
Contributor Amount Common Common
- --------------------------------------------------------------------------------
Bear Stearns Merchant Banking
Partners II, L.P. $ 3,942,167.86 2,027,401 225,268
- --------------------------------------------------------------------------------
Bear Stearns Merchant Banking
Investors II, L.P. $ 782,288.57 402,320 44,702
- --------------------------------------------------------------------------------
Bear Stearns MB-PSERS II,
L.P. $ 2,166,049.56 1,113,968 123,774
- --------------------------------------------------------------------------------
The BSC Employee Fund III,
L.P. $ 1,119,740.07 575,866 63,985
- --------------------------------------------------------------------------------
The BSC Employee Fund IV,
L.P. $ 1,989,753.94 1,023,302 113,700
- --------------------------------------------------------------------------------