EXHIBIT 10.6
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of October
30, 2003 by and among (i) Keystone Automotive Holdings, Inc., a Delaware
corporation (the "Company"), (ii) each of the Persons listed on Schedule I
attached hereto (collectively, the "Xxxx Group") and (iii) each other Person
listed on the signature pages hereto (each such other Person listed on the
signature pages hereto, the Xxxx Group and each other Person who from time to
time becomes a party hereto by executing and delivering a joinder in the form
attached hereto as Exhibit A are collectively referred to herein as the
"Stockholders" and each as a "Stockholder"). Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms in
Section 9 hereof.
The parties hereto agree as follows:
1. Demand Registrations.
(a) Requests for Registration. Subject to the covenants set forth in the
following subsections of this Section 1, the holders of a majority of the Xxxx
Registrable Securities may request (i) up to five (5) registrations under the
Securities Act of all or part of their Registrable Securities on Form S-1 or any
similar long-form registration ("Long-Form Registrations") and (ii) if
available, unlimited registrations under the Securities Act of all or any part
of their Registrable Securities on Form S-2 or S-3 or any similar short-form
registration ("Short-Form Registrations" and, collectively with Long Form
Registrations, "Demand Registrations"). Each member of the Xxxx Group hereby
acknowledges that it has no such registration rights other than as set forth in
this Agreement. The Company and each member of the Xxxx Group hereby agree that
to the extent such member of the Xxxx Group acquires any right hereafter to
request a Demand Registration, such Demand Registration shall be subject to the
provisions of Section 1(e) hereof.
(b) Demand Notice. All requests for Demand Registrations shall be made by
giving written notice to the Company (a "Demand Notice"). Each Demand Notice
shall specify the approximate number of Registrable Securities requested to be
registered and the anticipated per share price range for such offering. Within
ten days after receipt of any such Demand Notice, the Company will give written
notice of such requested registration to all other holders of Registrable
Securities and, subject to Section 1(e) below, will include in such registration
(and in all related registrations and qualifications under state blue sky laws
or in compliance with other registration requirements and in any related
underwriting) all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 30 days after the receipt
of the Company's notice.
(c) Demand Registration Expenses. The Company will pay all Registration
Expenses (as defined in Section 5 below) in connection with any registration
initiated as a Demand Registration, whether or not it has become effective.
(d) Short-Form Registrations. Demand Registrations will be Short-Form
Registrations whenever the Company is permitted to use any applicable short form
(unless the underwriter of such offering requests the Company to use a Long-Form
Registration in order to
sell all of the Registrable Securities requested to be sold). After the Company
has become subject to the reporting requirements of the Securities Exchange Act,
the Company will use its best efforts to make Short-Form Registrations available
for the sale of Registrable Securities.
(e) Priority on Demand Registrations. If a Demand Registration is an
underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold therein without adversely affecting the marketability of the
offering, the Company will include in such registration prior to the inclusion
of any securities which are not Registrable Securities the number of Registrable
Securities requested to be included which in the opinion of such underwriters
can be sold without adversely affecting the marketability of the offering, pro
rata among the respective holders thereof on the basis of the number of shares
of Registrable Securities owned by each such holder.
(f) Restrictions on Demand Registrations. The Company will not be
obligated to effect any Demand Registration within six months after the
effective date of a previous registered offering of securities (other than on
Form S-4 or S-8 or any successor or similar form). The Company may postpone for
up to 90 days (from the date of the request) the filing or the effectiveness of
a registration statement for a Demand Registration if and so long as the Company
determines that such Demand Registration would reasonably be expected to have an
adverse effect on any proposal or plan by the Company or any of its Subsidiaries
to engage in any acquisition of assets (other than in the ordinary course of
business) or any merger, consolidation, tender offer, registration or issuance
of securities, or other material transaction; provided, however, that in such
event, the Company will pay all Registration Expenses in connection with such
registration. The Company may not delay a Demand Registration more than two
times in any twelve-month period.
(g) Selection of Underwriters. The holders of a majority of the Xxxx
Registrable Securities included in any Demand Registration will have the right
to select the investment banker(s) and manager(s) to administer the offering.
The lead investment bank and manager shall be a nationally-recognized, New
York-based investment banking firm with substantial expertise in offerings of
the kind contemplated in connection with the Demand Registration (such kind of
investment banking firm being referred to herein as a "Qualified Investment
Bank").
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2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any of
its securities under the Securities Act (other than in an Initial Public
Offering or pursuant to a Demand Registration or a registration on Form S-4 or
S-8 or any successor or similar forms) and the registration form to be used may
be used for the registration of Registrable Securities (a "Piggyback
Registration"), whether or not for sale for its own account, the Company will
give prompt written notice to all holders of Registrable Securities of its
intention to effect such a registration and, subject to Sections 2(c) and 2(d)
below, will include in such registration all Registrable Securities with respect
to which the Company has received written requests for inclusion therein within
30 days after the receipt of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities will be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing (with a copy to each party hereto
requesting registration of Registrable Securities) that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the
marketability of such offering, the Company will include in such registration
(i) first, the securities the Company proposes to sell, (ii) second, the
Registrable Securities requested to be included in such registration, pro rata
among the holders of such Registrable Securities on the basis of the number of
shares owned by each such holder, and (iii) third, other securities requested to
be included in such registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company will include
in such registration (i) first, the securities requested to be included therein
by the holders requesting such registration, (ii) second, Registrable Securities
requested to be included in such registration, pro rata among such holders of
Registrable Securities on the basis of the number of shares owned by each such
holder, and (iii) third, other securities requested to be included in such
registration.
(e) Other Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
Section 1 or pursuant to this Section 2, and if such previous registration has
not been withdrawn or abandoned, the Company will not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-4 or S-8 or any successor form), whether on
its own behalf or at the request of any holder or holders of such securities,
until a period of at least six months has elapsed from the effective date of
such previous registration.
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3. Holdback Agreements.
(a) To the extent not inconsistent with applicable law, each holder of
Registrable Securities agrees not to effect any public sale or distribution
(including sales pursuant to Rule 144) of equity securities of the Company, or
any securities, options or rights convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
180-day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration (except as part of such
underwritten registration), unless the underwriters managing the registered
public offering otherwise agree.
(b) The Company agrees not to effect any public sale or distribution of
its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
180-day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Form S-4 or S-8 or any
successor form), unless the underwriters managing the registered public offering
otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable Securities
have requested that any Registrable Securities be registered pursuant to this
Agreement, the Company will use its best efforts to effect the registration and
the sale of such Registrable Securities in accordance with the intended method
of disposition thereof and pursuant thereto the Company will as expeditiously as
possible:
(a) prepare and (within 60 days after the end of the period within which
requests for inclusion in such registration may be given to the Company) file
with the Securities and Exchange Commission a registration statement with
respect to such Registrable Securities and thereafter use its best efforts to
cause such registration statement to become effective (provided, that before
filing a registration statement or prospectus or any amendments or supplements
thereto, the Company will furnish to the counsel(s) selected by the holders of
the Xxxx Registrable Securities covered by such registration statement copies of
all such documents proposed to be filed, which documents will be subject to
review of such counsel);
(b) prepare and file with the Securities and Exchange Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for a period of either (i) not less than six months (subject
to extension pursuant to Section 7(b) below) or, if such registration statement
relates to an underwritten offering, such longer period as in the opinion of
counsel for the underwriters a prospectus is required by law to be delivered in
connection with sales of Registrable Securities by an underwriter or dealer or
(ii) such shorter period as will terminate when all of the securities covered by
such registration statement have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth in
such registration statement (but in any event not before the expiration of any
longer period required under the Securities Act), and to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement until such time as all of such
securities have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement;
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(c) furnish to each seller of Registrable Securities such number of copies
of such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary
prospectus) and such other documents as such seller may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by such
seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided, that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subsection (d), (ii) subject itself to taxation in respect
of doing business in any such jurisdiction or (iii) consent to general service
of process in any such jurisdiction);
(e) promptly notify each seller of such Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the discovery of the happening of
any event as a result of which, the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and, at the request of any such
seller, the Company will prepare and furnish to such seller a reasonable number
of copies of a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus will
not contain an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made;
(f) cause all such Registrable Securities to be listed on each securities
exchange on which similar securities issued by the Company are then listed and,
if not so listed, to be listed on the NASD automated quotation system and, if
listed on the NASD automated quotation system, use its best efforts to secure
designation of all such Registrable Securities covered by such registration
statement as a NASDAQ "national market system security" within the meaning of
Rule 11Aa2-1 of the Securities and Exchange Commission or, failing that, to
secure NASDAQ authorization for such Registrable Securities and, without
limiting the generality of the foregoing, to arrange for at least two market
makers to register as such with respect to such Registrable Securities with the
NASD;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Xxxx Registrable Securities included in the registration or
the underwriters, if any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities (including, without limitation,
effecting a stock split or a combination of shares); provided, that no holder of
Registrable Securities shall have any indemnification or contribution obligation
inconsistent with Section 6 hereof;
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(i) make available for inspection by any seller of Registrable Securities,
any underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors, employees and independent accountants to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all applicable rules and
regulations of the Securities and Exchange Commission, and make available to its
security holders, as soon as reasonably practicable, but not later than 18
months after the effective date of the registration statement, an earnings
statement covering the period of at least twelve months beginning with the first
day of the Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) obtain one or more comfort letters, dated the effective date of such
registration statement (and, if such registration includes an underwritten
public offering, dated the date of the closing under the underwriting
agreement), signed by the Company's independent public accountants in customary
form and covering such matters of the type customarily covered by comfort
letters as the holders of a majority of the Xxxx Registrable Securities (or if
none, the holders of a majority of the Registrable Securities) being sold
reasonably request;
(l) provide a legal opinion of the Company's outside counsel, dated the
effective date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the closing under
the underwriting agreement), with respect to the registration statement, each
amendment and supplement thereto, the prospectus included therein (including the
preliminary prospectus) and such other documents relating thereto in customary
form and covering such matters of the type customarily covered by legal opinions
of such nature (in a form reasonably acceptable to the holders of a majority of
the Xxxx Registrable Securities (or if none, the holders of a majority of the
Registrable Securities) included in the registration);
(m) cooperate with the sellers of Registrable Securities covered by the
registration statement and the managing underwriter or agent, if any, to
facilitate the timely preparation and delivery of certificates (not bearing any
restrictive legends) representing securities to be sold under the registration
statement, and enable such securities to be in such denominations and registered
in such names as the managing underwriter or agent, if any, or such holders may
request;
(n) notify counsel for the sellers of Registrable Securities included in
such registration statement and the managing underwriter or agent, immediately,
and confirm the notice in writing (i) when the registration statement, or any
post-effective amendment to the registration statement, shall have become
effective, or any supplement to the prospectus or any amended prospectus shall
have been filed, (ii) of the receipt of any comments from the Securities and
Exchange Commission, (iii) of any request of the Securities and Exchange
Commission to amend the registration statement or amend or supplement the
prospectus or for additional information, and (iv) of the issuance by the
Securities and Exchange Commission of any stop
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order suspending the effectiveness of the registration statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the registration statement for offering or
sale in any jurisdiction, or of the institution or threatening of any
proceedings for any of such purposes;
(o) make every reasonable effort to prevent the issuance of any stop order
suspending the effectiveness of the registration statement or of any order
preventing or suspending the use of any preliminary prospectus and, if any such
order is issued, to obtain the withdrawal of any such order at the earliest
possible moment;
(p) if requested by the managing underwriter or agent or any holder of
Registrable Securities covered by the registration statement, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or agent or such holder reasonably
requests to be included therein, including, without limitation, with respect to
the number of Registrable Securities being sold by such holder to such
underwriter or agent, the purchase price being paid therefor by such underwriter
or agent and with respect to any other terms of the underwritten offering of the
Registrable Securities to be sold in such offering; and make all required
filings of such prospectus supplement or post-effective amendment as soon as
practicable after being notified of the matters incorporated in such prospectus
supplement or post-effective amendment;
(q) if requested by the holders of a majority of the Xxxx Registrable
Securities in connection with any Demand Registration initiated by such holders,
use its best efforts to cause to be included in such registration statement
shares of the Company's common stock having an aggregate value (based on the
midpoint of the proposed offering range specified in the registration statement
used to offer such securities) of up to $50.0 million to be offered in a primary
offering of the Company's securities contemporaneously with such offering of
Registrable Securities; and
(r) cooperate with each seller of Registrable Securities and each
underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the National Association of Securities Dealers, Inc.
The Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish the Company such information relating
to the sale or registration of such Securities regarding such seller and the
distribution of such securities as the Company may from time to time reasonably
request in writing.
5. Registration Expenses.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including, without limitation, all registration,
qualification and filing fees, fees and expenses of compliance with securities
or blue sky laws, printing expenses, messenger and delivery expenses, and fees
and disbursements of counsel for the Company and all independent certified
public accountants, underwriters (excluding discounts and commissions) and other
Persons retained by the Company (all such expenses being herein called
"Registration
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Expenses"), will be borne as provided in this Agreement, except that the Company
will, in any event, pay its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review, the
expense of any liability insurance and the expenses and fees for listing the
securities to be registered on each securities exchange on which similar
securities issued by the Company are then listed or on the NASD automated
quotation system.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company will reimburse the holders of Registrable Securities
covered by such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Xxxx Registrable Securities
(or if none, the holders of a majority of the Registrable Securities) included
in such registration.
(c) To the extent Registration Expenses are not required to be paid by the
Company, each holder of securities included in any registration hereunder will
pay those Registration Expenses allocable to the registration of such holder's
securities so included, and any Registration Expenses not so allocable will be
borne by all sellers of securities included in such registration in proportion
to the aggregate selling price of the securities to be so registered.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless, to the fullest
extent permitted by law, each holder of Registrable Securities, its officers,
directors, employees, stockholders and general and limited partners and each
Person who controls such holder (within the meaning of the Securities Act)
against any and all losses, claims, damages, liabilities, joint or several, to
which such holder or any such director or officer or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon (i) any untrue or
alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto, together with any documents incorporated therein by
reference or, (ii) any omission or alleged omission of a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and the Company will reimburse such holder and each such director, officers,
employees, stockholders and general and limited partners and controlling person
for any legal or any other expenses, including any amounts paid in any
settlement effected with the consent of the Company, which consent will not be
unreasonably withheld or delayed, incurred by them in connection with
investigating or defending any such loss, claim, liability, action or
proceeding; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement, or omission or alleged omission,
made in such registration statement, any such prospectus or preliminary
prospectus or any amendment or supplement thereto, or in any application, in
reliance upon, and in conformity with, written information prepared and
furnished to the Company by such holder expressly for use therein. In connection
with an underwritten offering, the Company will indemnify such underwriters,
their officers and directors and each Person who controls such underwriters
(within the meaning of the Securities Act) to the same
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extent as provided above with respect to the indemnification of the holders of
Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify and hold harmless
the Company, its directors, officers, employees, stockholders and general and
limited partners and each other Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities,
joint or several, to which such holder or any such director or officer or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon (i) any untrue or alleged untrue statement of material fact
contained in the registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or in any application, together with
any documents incorporated therein by reference or (ii) any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, but only to the extent that such untrue
statement or omission is made in such registration statement, any such
prospectus or preliminary prospectus or any amendment or supplement thereto, or
in any application, in reliance upon and in conformity with written information
prepared and furnished to the Company by such holder expressly for use therein,
and such holder will reimburse the Company and each such director, officer and
controlling Person for any legal or any other expenses including any amounts
paid in any settlement effected with the consent of such holder, which consent
will not be unreasonably withheld or delayed, incurred by them in connection
with investigating or defending any such loss, claim, liability, action or
proceeding; provided, however, that the obligation to indemnify will be
individual (and not joint and several) to each holder and will be limited to the
net amount of proceeds received by such holder from the sale of Registrable
Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification (provided, however, that the failure of any indemnified
party to give such notice shall not relieve the indemnifying party of its
obligations hereunder, except to the extent that the indemnifying party is
actually prejudiced by such failure to give such notice), and (ii) unless in
such indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party will not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
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(d) The indemnifying party shall not, except with the approval of each
indemnified party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to each indemnified party of a release from all liability
in respect to such claim or litigation without any payment or consideration
provided by such indemnified party.
(e) If the indemnification provided for in this Section 6 is unavailable
to or is insufficient to hold harmless an indemnified party under the provisions
above in respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect not only the
relative benefits received by the Company on the one hand and the sellers of
Registrable Securities and any other sellers participating in the registration
statement on the other from the sale of Registrable Securities pursuant to the
registered offering of securities as to which indemnity is sought but also the
relative fault of the indemnified party and the indemnifying party as well as
any other relevant equitable considerations or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
sellers of Registrable Securities and any other sellers participating in the
registration statement on the other in connection with the statement or
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the sellers of Registrable Securities and any
other sellers participating in the registration statement on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) to the Company bear to the total net proceeds from
the offering (before deducting expenses) to the sellers of Registrable
Securities and any other sellers participating in the registration statement.
The relative fault of the Company on the one hand and of the sellers of
Registrable Securities and any other sellers participating in the registration
statement on the other shall be determined by reference to, among other things,
whether the untrue or alleged omission to state a material fact relates to
information supplied by the Company or by the sellers of Registrable Securities
or other sellers participating in the registration statement and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the sellers of Registrable Securities agree that it would not be
just and equitable if contribution pursuant to this Section 6 were determined by
pro rata allocation (even if the sellers of Registrable Securities were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, no seller of
Registrable Securities shall be required to contribute any amount in excess of
the net proceeds received by such Seller from the sale of Registrable Securities
covered by the registration statement filed pursuant hereto. No person guilty of
fraudulent misrepresentation (within the
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meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) The indemnification and contribution by any such party provided for
under this Agreement shall be in addition to any other rights to indemnification
or contribution which any indemnified party may have pursuant to law or contract
and will remain in full force and effect regardless of any investigation made or
omitted by or on behalf of the indemnified party or any officer, director or
controlling Person of such indemnified party and will survive the transfer of
securities.
7. Participation in Underwritten Registrations.
(a) No Person may participate in any registration hereunder which is
underwritten unless such Person (i) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements (including, without
limitation, pursuant to the terms of any over-allotment or "green shoe" option
requested by the managing underwriter(s), provided, that no holder of
Registrable Securities will be required to sell more than the number of
Registrable Securities that such holder has requested the Company to include in
any registration) and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
(b) Each Person that is participating in any registration hereunder agrees
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 4(e) above, such Person will forthwith
discontinue the disposition of its Registrable Securities pursuant to the
registration statement until such Person's receipt of the copies of a
supplemented or amended prospectus as contemplated by such Section 4(e). In the
event the Company shall give any such notice, the applicable time period
mentioned in Section 4(b) during which a Registration Statement is to remain
effective shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to this Section 7(b) to
and including the date when each seller of a Registrable Security covered by
such registration statement shall have received the copies of the supplemented
or amended prospectus contemplated by Section 4(e).
8. Current Public Information. At all times after the Company has filed a
registration statement with the Securities and Exchange Commission pursuant to
the requirements of either the Securities Act or the Securities Exchange Act,
the Company will timely file all reports required to be filed by it under the
Securities Act and the Securities Exchange Act and the rules and regulations
adopted by the Securities and Exchange Commission thereunder, and will take such
further action as any holder or holders of Registrable Securities may reasonably
request, all to the extent required to enable such holders to sell Registrable
Securities pursuant to Rule 144 adopted by the Securities and Exchange
Commission under the Securities Act (as such rule may be amended from time to
time) or any similar rule or regulation hereafter adopted by the Securities and
Exchange Commission.
9. Definitions.
11
"Advent" means, collectively, (i) Global Private Equity IV Limited
Partnership, a Delaware limited partnership, (ii) Advent Partners GPE-IV Limited
Partnership, a Delaware limited partnership and (iii) Advent Partners II Limited
Partnership, a Delaware limited partnership.
"Advent Registrable Securities" means (i) any share of Class A Common
issued to Advent (or its Affiliates) or otherwise acquired, including, without
limitation, upon any recapitalization of Class L Common into Class A Common, and
(ii) any equity securities issued or issuable directly or indirectly with
respect to any of the foregoing securities referred to in clause (i) by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization; provided,
however, that in the event that pursuant to any recapitalization or exchange
Non-Participating Securities are issued, such Non-Participating Securities will
not be Registrable Securities. As to any particular shares constituting Advent
Registrable Securities, such shares will cease to be Advent Registrable
Securities when they have been (x) effectively registered under the Securities
Act and disposed of in accordance with the registration statement covering them,
or (y) sold to the public pursuant to Rule 144 under the Securities Act. For
purposes of this Agreement, a Person will be deemed to be a holder of Advent
Registrable Securities whenever such Person has the right to acquire directly or
indirectly such Advent Registrable Securities (upon conversion or exercise in
connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected.
"Affiliate" means, with respect to any Person, any other Person
controlling, controlled by or under common control with the Person and, in the
case of a Person which is a partnership, any partner of such Person.
"Bain Registrable Securities" means (i) any share of Class A Common
issued to the Xxxx Group (or their Affiliates) or otherwise acquired, including,
without limitation, upon any recapitalization of Class L Common into Class A
Common, and (ii) any equity securities issued or issuable directly or indirectly
with respect to any of the foregoing securities referred to in clause (i) by way
of stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization; provided,
however, that in the event that pursuant to any recapitalization or exchange
Non-Participating Securities are issued, such Non-Participating Securities will
not be Registrable Securities. As to any particular shares constituting Bain
Registrable Securities, such shares will cease to be Bain Registrable Securities
when they have been (x) effectively registered under the Securities Act and
disposed of in accordance with the registration statement covering them, or (y)
sold to the public pursuant to Rule 144 under the Securities Act. For purposes
of this Agreement, a Person will be deemed to be a holder of Bain Registrable
Securities whenever such Person has the right to acquire directly or indirectly
such Bain Registrable Securities (upon conversion or exercise in connection with
a transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected.
"Bear Xxxxxxx" means, collectively, (i) Bear Xxxxxxx Merchant Banking
Partners II, L.P., a Delaware limited partnership, (ii) Bear Xxxxxxx Merchant
Banking Investors II, L.P., a Delaware limited partnership, (iii) Bear Xxxxxxx
MB-PSERS II, L.P., a Delaware limited
12
partnership, (iv) The BSC Employee Fund III, L.P., a Delaware limited
partnership, and (v) The BSC Employee Fund IV, L.P., a Delaware limited
partnership.
"Class A Common" means the Class A Common Stock, par value $0.01 per
share, of the Company.
"Class L Common" means the Class L Common Stock, par value $0.01 per
share, of the Company.
"Initial Public Offering" means a public offering and sale of the
Company's common stock pursuant to an effective registration statement under the
Securities Act of 1933, as amended, if immediately thereafter the Company has
publicly held common stock listed on a national securities exchange or the
Nasdaq National Market.
"Non-Participating Securities" means equity securities which do not
participate in the residual equity of the Company.
"Other Registrable Securities" means, so long as the Company and such
holder have agreed to cause such holder to become bound by the terms and
provisions of this Agreement, means (i) any share of Class A Common issued to
any Person other than a member of the Xxxx Group, including, without limitation,
upon any recapitalization of Class L Common into Class A Common, and (ii) any
equity securities issued or issuable directly or indirectly with respect to any
of the foregoing securities referred to in clause (i) by way of stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization; provided, however, that in the
event that pursuant to any recapitalization or exchange Non-Participating
Securities are issued, such Non-Participating Securities will not be Registrable
Securities. As to any particular shares constituting Other Registrable
Securities, such shares will cease to be Other Registrable Securities when they
have been (x) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them, or (y) sold to the
public pursuant to Rule 144 under the Securities Act. For purposes of this
Agreement, a Person will be deemed to be a holder of Other Registrable
Securities whenever such Person has the right to acquire directly or indirectly
such Other Registrable Securities (upon conversion or exercise in connection
with a transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected.
"Person" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization and a government or any department or agency thereof.
"Registrable Securities" means, collectively, the Bain Registrable
Securities and the Other Registrable Securities.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor federal law then in force.
"Securities and Exchange Commission" includes any governmental body or
agency succeeding to the functions thereof.
13
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any successor federal law then in force.
10. Miscellaneous.
(a) No Inconsistent Agreements; Foreign Registration. The Company will not
hereafter enter into any agreement with respect to its securities which is
inconsistent with or violates the rights granted to the holders of Registrable
Securities in this Agreement. In the event the Company's board of directors (the
"Board") approves a public offering or sale of the common stock of the Company
(or other securities representing, or exercisable for or convertible into,
shares of common stock) pursuant to the securities laws of a country other than
the United States of America, the Board shall have the power to amend this
Agreement in such manner as it shall deem reasonably necessary to ensure that
the provisions of this Agreement will apply in a substantial manner to any
offering or sale under such foreign securities laws.
(b) Adjustments Affecting Registrable Securities. The Company will not
take any action, or permit any change to occur, with respect to its securities
which would materially and adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would adversely affect the
marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of
shares). If the holders of Registrable Securities create a new holding company
("Holdco"), the result of which is that the shareholders of the Company
immediately before such event become all the shareholders of Holdco, then in
each instance the provisions of this Agreement will in addition to the Company
also apply to Holdco in the same manner as if Holdco were substituted for the
Company throughout this Agreement.
(c) Remedies. The parties hereto agree and acknowledge that money damages
may not be an adequate remedy for any breach of the provisions of this Agreement
and that, in addition to any other rights and remedies at law or in equity
existing in its favor, any party shall be entitled to specific performance
and/or other injunctive relief from any court of law or equity of competent
jurisdiction (without posting any bond or other security) in order to enforce or
prevent violation of the provisions of this Agreement.
(d) Amendment and Waiver. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and the holders of a majority of the Bain
Registrable Securities (or if none, the holders of a majority of Registrable
Securities); provided, however, that in the event that such amendment or waiver
would treat a holder or group of holders of Registrable Securities in a manner
materially different from, and materially adverse relative to, the holders of
Registrable Securities voting in favor of such amendment, then such amendment or
waiver will require the consent of such holder or the holders of a majority of
the Registrable Securities of such group adversely treated; provided, further,
that the provisions of Section 1(e), 2(c), 2(d) or 3 hereof shall not be amended
without the prior written consent of the holders of a majority of the Advent
Registrable Securities. The failure of any party to enforce any of the
provisions of this Agreement shall in no way be construed as a waiver of such
provisions and shall not affect the right of such party thereafter to enforce
each and every provision of this Agreement in accordance with its terms.
14
(e) Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective
successors and assigns. In addition, and whether or not any express assignment
shall have been made, the provisions of this Agreement which are for the benefit
of the holders of Registrable Securities (or any portion thereof) as such shall
be for the benefit of and enforceable by any subsequent holder of any
Registrable Securities (or of such portion thereof), subject to the provisions
respecting the minimum numbers or percentages of shares of Registrable
Securities (or of such portion thereof) required in order to be entitled to
certain rights, or take certain actions, contained herein.
(f) Severability. Whenever possible, each provision of this Agreement
shall 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 shall not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
(g) Counterparts. This Agreement may be executed in separate counterparts
each of which shall be an original and all of which taken together shall
constitute one and the same Agreement.
(h) Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
(i) Notices. All notices, demands and other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when personally delivered, sent
by telecopy (with receipt confirmed) on a Business Day during regular business
hours of the recipient (or, if not, on the next succeeding Business Day) or two
Business Days after sent by reputable overnight express courier (charges
prepaid). Such notices, demands and other communications shall be sent to the
following Persons at the following addresses:
If to the Company, to:
---------------------
Keystone Automotive Holdings, Inc.
x/x Xxxx Xxxxxxx XX, LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
with a copy (which shall not constitute notice to the Company),
---------------------------------------------------------------
to:
--
Xxxxxxxx & Xxxxx LLP
Citigroup Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attn: Xxxx Xxxx
15
If to the Xxxx Group, to:
------------------------
Xxxx Capital NY, LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Xxxxxxx X. Xxxx
with a copy (which shall not constitute notice to the Xxxx
----------------------------------------------------------
Group), to:
----------
Xxxxxxxx & Xxxxx LLP
Citigroup Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attn: Xxxx Xxxx
If to Advent, to:
----------------
c/o Advent International Corporation
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: 000-000-0000
Attn: Xxxxxx X. Xxxxxx, Xx.
with a copy (which shall not constitute notice to Advent), to:
-------------------------------------------------------------
Xxxxxx Xxxxxxxx LLP
3000 Two Xxxxx Square
00/xx/ & Xxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attn: Xxxxx X. Xxxxxxx
If to Bear Xxxxxxx, to:
----------------------
c/o Bear Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Xxxx X. Xxxxxx
with a copy (which shall not constitute notice to Bear Xxxxxxx),
----------------------------------------------------------------
to:
--
Xxxxxxxx & Xxxxx LLP
Citigroup Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx
16
If to any other Person party to this Agreement, to:
---------------------------------------------------
the address for such Person shown in the books and records of the
Company;
or to such other Person as the recipient party has specified by prior written
notice to the sending party.
(j) Delivery by Facsimile. This Agreement and any signed agreement or
instrument entered into in connection thereto or contemplated thereby, and any
amendments hereto or thereto, to the extent signed and delivered by means of a
facsimile machine, shall be treated in all manner and respects as an original
agreement or instrument and shall be considered to have the same binding legal
effect as if it were the original signed version thereof delivered in person. At
the request of any party hereto or to any such agreement or instrument, each
other party hereto or thereto shall re-execute original forms thereof and
deliver them to all other parties. No party hereto or to any such agreement or
instrument shall raise the use of a facsimile machine to deliver a signature or
the fact that any signature or agreement or instrument was transmitted or
communicated through the use of a facsimile machine as a defense to the
formation of a contract and each such party forever waives any such defense.
(k) Governing Law. THE CORPORATE LAW OF DELAWARE WILL GOVERN ALL ISSUES
CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS STOCKHOLDERS. ALL OTHER
ISSUES CONCERNING THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY
CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEW
YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAW OF
ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
* * * * *
17
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement on the day and year first above written.
KEYSTONE AUTOMOTIVE HOLDINGS, INC.
By: /s/ Xxxxxx X. Vor Broker
-----------------------------------
Name: Xxxxxx X. Vor Broker
Title: President
[Bain Signature Page to Registration Rights Agreement]
XXXX CAPITAL FUND VII, LLC
By: Brain Capital Fund VII, L.P.
Its: Sole Member
By: Brain Capital Partners VII, L.P.
Its: General Partner
By: Brain Capital Investors, LLC
Its: General Partner
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
XXXX CAPITAL VII COINVESTMENT FUND, LLC
By: Brain Capital VII Coinvestment Fund, L.P.
Its: Sole Member
By: Brain Capital Partners VII, L.P.
Its: General Partner
By: Brain Capital Investors, LLC
Its: General Partner
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
BCIP ASSOCIATES III, LLC
By: BCIP Associates III
Its: Manager
By: Xxxx Capital Investors, LLC
Its: Managing Partner
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
[Bain Signature Page to Registration Rights Agreement Continued]
BCIP T ASSOCIATES III, LLC
By: BCIP Trust Associates III
Its: Manager
By: Xxxx Capital Investors, LLC
Its: Managing Partner
By: /s/ Xxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
BCIP ASSOCIATES III-B, LLC
By: BCIP Associates III-B
Its: Manager
By: Xxxx Capital Investors, LLC
Its: Managing Partner
By: /s/ Xxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
BCIP T ASSOCIATES III-B, LLC
By: BCIP Trust Associates III-B
Its: Manager
By: Xxxx Capital Investors, LLC
Its: Managing Partner
By: /s/ Xxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
[Advent Signature Page to Registration Rights Agreement]
GLOBAL PRIVATE EQUITY IV LIMITED
PARTNERSHIP
By: Advent International Limited
Partnership
Its: General Partner
By: Advent International Corporation
Its: General Partner
By: /s/ Xxxxxx X.Xxxxxx,Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
ADVENT PARTNERS II LIMITED PARTNERSHIP
By: Advent International Corporation
Its: General Partner
By: /s/ Xxxxxx X.Xxxxxx,Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
ADVENT PARTNERS GPE-IV LIMITED
PARTNERSHIP
By: Advent International Corporation
Its: General Partner
By: /s/ Xxxxxx X.Xxxxxx,Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
[Bear Xxxxxxx Signature Page to Registration Rights Agreement]
BEAR XXXXXXX MERCHANT BANKING
PARTNERS II, L.P.
By: Bear Xxxxxxx Merchant Capital II,
L.P.
Its: General Partner
By: JDH Management LLC
Its: Special Limited Partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Managing Director
BEAR XXXXXXX MERCHANT BANKING
INVESTORS II, L.P.
By: Bear Xxxxxxx Merchant Capital II,
L.P.
Its: General Partner
By: JDH Management LLC
Its: Special Limited Partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Managing Director
BEAR XXXXXXX MB-PSERS II, L.P.
By: Bear Xxxxxxx Merchant Capital II,
L.P.
Its: General Partner
By: JDH Management LLC
Its: Special Limited Partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Managing Director
[Bear Xxxxxxx Signature Page to Registration Rights Agreement Continued]
THE BSC EMPLOYEE FUND III, L.P.
By: Bear Xxxxxxx Merchant Capital II,
L.P.
Its: General Partner
By: JDH Management LLC
Its: Special Limited Partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Managing Director
THE BSC EMPLOYEE FUND IV, L.P.
By: Bear Xxxxxxx Merchant Capital II,
L.P.
Its: General Partner
By: JDH Management LLC
Its: Special Limited Partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Managing Director
[Xxxxxxxx Street Signature Page to Registration Rights Agreement]
XXXXXXXX STREET PARTNERS VI
By: /s/ Xxxx Xxxx
-----------------------------------
Name: Xxxx Xxxx
Title: Managing Partner
[Individual Shareholders Signature Page to Registration Rights Agreement]
/s/ Xxxxxxx Xxxxxxxxxxx
----------------------------------------
XXXXXXX XXXXXXXXXXX
/s/ Xxxxxx X. Xxxxx
----------------------------------------
XXXXXX X. XXXXX
/s/ Xxxxxx Xxxxxxxx
----------------------------------------
XXXXXX XXXXXXXX
/s/ Xxxxxxx Xxxxxxxx
----------------------------------------
XXXXXXX XXXXXXXX
/s/ Xxxxxxx Xxxxx, Sr.
----------------------------------------
XXXXXXX XXXXX, SR.
/s/ Xxxxxxx Xxxxxxxx
----------------------------------------
XXXXXXX XXXXXXXX
/s/ Xxxxxxxx Xxxxxxxx
----------------------------------------
XXXXXXXX XXXXXXXX
/s/ Xxxxx Xxxx
----------------------------------------
XXXXX XXXX
/s/ Xxxxxx X. Vor Broker
----------------------------------------
XXXXXX X. VOR BROKER
SCHEDULE I
----------
Xxxx Capital Fund VII, LLC
Xxxx Capital VII Coinvestment Fund, LLC
BCIP Associates III, LLC
BCIP T Associates III, LLC
BCIP Associates III-B, LLC
BCIP T Associates III-B, LLC
EXHIBIT A
---------
FORM OF JOINDER TO
REGISTRATION RIGHTS AGREEMENT
-----------------------------
THIS JOINDER (this "Joinder") to the Registration Rights Agreement (the
"Agreement"), dated as of October [_], 2003, by and among Keystone Automotive
Holdings, Inc., a Delaware corporation (the "Company"), and the Stockholders is
made and entered into as of [_________] by and between the Company and
[_________________] ("Holder"). Capitalized terms used herein but not otherwise
defined shall have the meanings set forth in the Agreement.
WHEREAS, (i) Holder has acquired certain shares of the Company's capital
stock, (ii) the Company desires to grant to Holder certain registration rights
in accordance with the terms of the Agreement and each of the Stockholders
consents to the granting of such registration rights, and (iii) it is a
condition to the transfer or issuance to the Holder that Holder agrees to be
bound by the terms of the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Joinder hereby agree as follows:
1. Agreement to be Bound. Holder hereby agrees that upon execution of this
Joinder, Holder shall become a party to the Agreement and shall be fully
bound by, and subject to, all of the covenants, terms and conditions of the
Agreement as though an original party thereto and shall be deemed a
[Stockholder] for all purposes thereof. In addition, Holder hereby agrees
that all shares of Class A Common Stock issued to or acquired by Holder,
including, without limitation, upon any recapitalization of Class L Common
into Class A Common (and any equity securities issued or issuable directly
or indirectly with respect to any of the foregoing securities by way of
stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger consolidation or other reorganization)
shall be deemed [Other] Registrable Securities for all purposes of the
Agreement. [This Section 1 to be changed as appropriate if Holder will be a
member of the Xxxx Group.]
2. Successors and Assigns. Except as otherwise provided herein, this Joinder
shall bind and inure to the benefit of and be enforceable by the Company
and its successors and assigns and Holder and any subsequent holders of
Registrable Securities held by Holder and the respective successors and
assigns of each of them, so long as they hold such Registrable Securities.
3. Counterparts. This Joinder may be executed in separate counterparts each of
which shall be an original and all of which taken together shall constitute
one and the same agreement.
4. Governing Law. THE CORPORATE LAW OF THE STATE OF DELAWARE WILL GOVERN ALL
ISSUES CONCERNING THE RELATIVE RIGHTS OF THE
1
COMPANY AND ITS STOCKHOLDERS. ALL OTHER ISSUES CONCERNING THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW
PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAW OF ANY
JURISDICTION OTHER THAN THE STATE OF NEW YORK.
5. Waiver of Jury Trial. The Company and the Holder hereby waive, to the
extent permitted by applicable law, trial by jury in any litigation in any
court with respect to, in connection with, or arising out of this Agreement
or the validity, protection, interpretation or enforcement thereof. The
Company and the Holder agree that this Section 5 is a specific and material
aspect of this Agreement and would not enter into this Agreement if this
section were not part of this Agreement.
6. Descriptive Headings. The descriptive headings of this Joinder are inserted
for convenience only and do not constitute a part of this Joinder.
* * * * *
2
IN WITNESS WHEREOF, the parties hereto have executed this Joinder as
of the date first above written.
KEYSTONE AUTOMOTIVE HOLDINGS, INC.
By:
-----------------------------------
Name:
Title:
----------------------------------------
[HOLDER]
