EXHIBIT 10.17
VOTING AGREEMENT AND IRREVOCABLE PROXY
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY, dated as of August 29,
2003 (the "Agreement"), is by and among KEYSTONE AUTOMOTIVE HOLDINGS, INC., a
Delaware corporation ("Acquiror"), KEYSTONE AUTOMOTIVE OPERATIONS, INC., a
Pennsylvania corporation (the "Company"), the individuals and entities listed in
Exhibit A attached hereto (the "Shareholders") and LAGE LLC, a Delaware limited
liability corporation (the "Holder Representative").
W I T N E S S E T H:
WHEREAS, Acquiror, Keystone Merger Sub, Inc., a Pennsylvania
corporation and a wholly-owned subsidiary of Acquiror ("Merger Sub"), the
Company, and the Holder Representative propose to enter into an Agreement and
Plan of Merger, dated today's date (as such agreement may hereafter be amended,
restated or otherwise modified from time to time, the "Merger Agreement";
capitalized terms used herein and not defined herein have the respective
meanings ascribed to them in the Merger Agreement), pursuant to which Merger Sub
will be merged with and into the Company, with the Company continuing as the
Surviving Corporation and a wholly-owned subsidiary of Acquiror (the "Merger");
WHEREAS, each of the Shareholders owns the number of shares of (i)
Common Stock, par value $.01 per share (the "Common Stock"), and (ii) Series A
Preferred Stock, stated value $649.99 per share (the "Series A Preferred Stock",
and together with the Common Stock and any other voting capital stock of the
Company held by such Shareholders, the "Shares"), of the Company set forth
opposite such Shareholder's name on Exhibit A hereto; and
WHEREAS, the Shareholders have agreed to enter into this Agreement
strictly in their capacity as owners of the Shares and not in their capacity as
directors or officers of the Company.
NOW, THEREFORE, to induce Acquiror and Merger Sub to enter into the
Merger Agreement, and in consideration of the premises and the representations,
warranties, covenants and agreements contained herein, and intending to be
legally bound hereby, the parties hereto hereby agree as follows:
1. Provisions Concerning the Shares.
(a) Each Shareholder hereby agrees that during the period commencing
on the date hereof and continuing until this provision terminates pursuant to
Section 7 hereof, at any meeting of shareholders of the Company, however called,
or in connection with any written consent of the shareholders of the Company,
such Shareholder shall vote (or cause to be voted) the Shares held of record or
beneficially owned by such Shareholder, whether heretofore owned or hereafter
acquired, and shall exercise (or cause to be exercised) all consensual rights
attendant thereto (i) in favor of approval of the Merger Agreement and the
transactions contemplated thereby (including the Merger) and any actions
required in furtherance thereof and hereof; (ii) against any
action or agreement that would result in a breach in any respect of any
covenant, representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement; (iii) in favor of any amounts proposed to be
paid to directors, employees or former employees of the Company under the
Keystone Automotives Operations, Inc. 2003 Transaction Bonus Plan and submitted
to shareholders of the Company for their approval in a manner intended to
satisfy the requirements of Section 280G(b)(5) of the Internal Revenue Code; and
(iv) except as otherwise contemplated or permitted by the Merger Agreement,
against the following actions (other than the Merger and the transactions
contemplated by the Merger Agreement): (A) any Alternative Transaction; (B) a
sale, lease or transfer of a material amount of assets of the Company, or a
reorganization, recapitalization, dissolution or liquidation of the Company; (C)
any change in a majority of the persons who constitute the board of directors of
the Company or a change in management of the Company; (D) any amendment of the
Company's articles of incorporation or by-laws; or (E) any other action which is
intended, or could reasonably be expected, to impede, interfere with, delay,
postpone, or adversely affect the Merger and the transactions contemplated by
this Agreement and the Merger Agreement. In the event that any corporate action
consistent with this Agreement is taken by the shareholders of the Company by
written consent (including any action to approve the Merger Agreement and the
transactions contemplated thereby), each Shareholder hereby waives any right to
receive notice of the taking of such corporate action without a meeting pursuant
to Section 1766 of the Pennsylvania Business Corporation Law of 1988 (the "BCL")
or otherwise.
(b) Each Shareholder hereby agrees that it will execute and deliver
the Holder Representative Agreement before the Effective Time of the Merger.
(c) In the event of a stock dividend or distribution, or any change in
the capital stock of the Company by reason of any stock split, recapitalization,
reclassification, combination, exchange of shares, merger or similar event, the
term "Shares" as used in this Agreement shall be deemed to refer to and include
the Shares as well as all such stock dividends and distributions and any shares
or other securities into which or for which any or all of the Shares may be
converted, changed or exchanged.
2. Waiver of Appraisal Rights. Each Shareholder hereby irrevocably
waives any rights to appraisal of the fair value of such Shareholder's Shares,
rights to dissent from the Merger or other similar rights that such Shareholder
may have pursuant to the BCL or otherwise (collectively, "Appraisal Rights").
3. Representations and Warranties. Each Shareholder hereby represents
and warrants to Acquiror and the Holder Representative as follows:
(a) Ownership of Shares. Such Shareholder is the record and, except as
set forth on Schedule 3(a) attached hereto, beneficial owner of the number of
Shares set forth opposite such Shareholder's name on Exhibit A hereto. The
Shares set forth opposite such Shareholder's name on Exhibit A hereto constitute
all of the Shares owned of record or beneficially owned by such Shareholder.
Except as set forth on Schedule 3(a) attached hereto, such Shareholder has the
requisite power (i) to vote and to issue
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instructions with respect to the matters set forth in Sections 1 and 5 hereof,
(ii) to dispose of, and (iii) to demand Appraisal Rights, in each case with
respect to all of the Shares set forth opposite such Shareholder's name on
Exhibit A hereto.
(b) Power; Binding Agreement. Such Shareholder has the requisite power
and authority (or, if a natural person, the legal capacity) to enter into and
perform all of such Shareholder's obligations under this Agreement. This
Agreement has been duly and validly authorized, executed and delivered by such
Shareholder and constitutes a valid and binding agreement of such Shareholder,
enforceable against such Shareholder in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally,
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity). Except as
have been obtained, there is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which such Shareholder is settlor
or trustee or any other person whose consent is required for the execution and
delivery of this Agreement or the performance by such Shareholder of its
obligations hereunder.
(c) No Conflicts. (i) No filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by such Shareholder and the
consummation by such Shareholder of the transactions contemplated hereby, and
(ii) none of the execution, delivery and performance of this Agreement by such
Shareholder will (A) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default under any declaration of
trust, note, bond, mortgage, indenture, security or pledge agreement, voting
agreement, shareholders agreement or voting trust, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which such Shareholder is a party or by which such
Shareholder or any of such Shareholder's properties or assets is bound, (B)
violate any order, writ, injunction, decree, judgment, order, statute, rule or
regulation of any Governmental Authority applicable to such Shareholder or any
of such Shareholder's properties or assets, in each case where any such
violation, breach or default would disable or prevent such Shareholder from
executing and delivering this Agreement and performing its obligations
hereunder, or (C) violate any provisions of the Company's articles of
incorporation or by-laws.
(d) No Encumbrances. Except as applicable in connection with the
transactions contemplated hereby, such Shareholder's Shares and the certificates
representing such Shares are now, and will be, at all times during the term
hereof, beneficially owned and held of record by such Shareholder, free and
clear of all liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances whatsoever,
except for any such encumbrances: (i) arising hereunder; (ii) existing under any
pledge agreement executed by a Shareholder in favor of Wachovia Bank N.A.
(formerly known as First Union National Bank), as agent (the "Agent"), in
connection with the Credit Agreement (each, a "Pledge Agreement"); (iii)
existing under the Shareholders' Agreement and the Registration
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Rights Agreement; (iv) existing under any Restricted Stock Agreements or
Restricted Stock Agreement and Amendment to Stock Option Agreements; and (v)
existing under the Securities Act of 1933, as amended.
4. No Solicitation.
(a) Immediately after the execution of this Agreement, and continuing
until this provision terminates pursuant to Section 7 hereof, each Shareholder
shall terminate and cease, and shall direct its Affiliates, officers, directors,
Representatives and agents (such Persons collectively shall be referred to as
the "Shareholder Group") to terminate and cease, all discussions and
negotiations that may then be ongoing by any of them with respect to an
Alternative Transaction. From the date hereof through the earlier of (a) the
Closing or (b) the termination of this provision pursuant to Section 7 hereof,
the Shareholder shall not, and shall not knowingly permit any member of the
Shareholder Group to, directly or indirectly, solicit, participate in or
initiate discussions or negotiations with, or provide any information to, any
Person or group of Persons (other than Acquiror, Merger Sub or any of their
respective Affiliates) concerning any Alternative Transaction. The Shareholder
shall notify Acquiror within two Business Days if it receives a bona fide,
written offer in respect of an Alternative Transaction.
(b) Each of Acquiror and the Holder Representative acknowledges that
this Agreement is entered into by each Shareholder in such Shareholder's
capacity as an owner of the Shares, and that nothing in this Agreement shall in
any way restrict or limit a Shareholder who is also a director or officer of the
Company from taking any action in his capacity as a director or officer of the
Company or otherwise fulfilling his fiduciary obligations as a director or
officer of the Company, notwithstanding that any such action would be
inconsistent with or violative of such Shareholder's obligations under this
Agreement if taken in his capacity as an owner of the Shares.
5. Restriction on Transfer; Stop Transfer.
(a) Each Shareholder agrees not to, during the period commencing on
the date hereof and continuing until this provision terminates pursuant to
Section 7 hereof: (i) except as contemplated by the Merger Agreement, offer for
sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of,
or grant or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
such Shareholder's Shares or any interest therein, provided that any Shareholder
may offer to sell, sell, transfer, assign or otherwise dispose of Shares to such
Shareholder's Affiliate who is, or as a condition precedent becomes, a party to
this Agreement, or to any other shareholder of the Company who is, or as a
condition precedent becomes, a party to this Agreement; (ii) except as
contemplated by this Agreement, grant any proxies or powers of attorney, deposit
any Shares into a voting trust or enter into a voting agreement with respect to
any Shares; or (iii) knowingly take any action that would make any of such
Shareholder's representations or warranties contained herein untrue or incorrect
or have the effect of preventing or disabling such Shareholder from performing
such Shareholder's obligations under this Agreement.
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(b) Without limiting the generality of Section 5(a) above, each
Shareholder agrees with, and covenants to, the Company and the Holder
Representative that such Shareholder shall not, during the period set forth in
Section 5(a), request that the Company register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing the
Shares, unless such transfer is made in compliance with this Agreement.
6. Grant of Irrevocable Proxy Coupled with an Interest.
(a) During the period commencing on the date hereof and continuing
until this provision terminates pursuant to Section 7 hereof, each Shareholder
hereby irrevocably appoints the Holder Representative or any individual
designated by the Holder Representative as such Shareholder's agent,
attorney-in-fact and proxy (with full power of substitution), for in the name,
place and stead of such Shareholder, to vote (or cause to be voted) the Shares
held of record or beneficially owned by such Shareholder, whether issued,
heretofore owned or hereafter acquired, or grant a consent or approval in
respect of such Shares, at any meeting of Shareholders of the Company or at any
adjournment thereof or in any other circumstances upon which his, her or its
vote, consent or other approval is sought: (i) in favor of the approval of the
Merger Agreement and any actions required in furtherance thereof and hereof;
provided, however, that if the Holder Representative fails to vote the Shares in
favor of the approval of the Merger Agreement or any actions required in
furtherance thereof, each Shareholder shall be deemed to have appointed the
Acquiror as such Shareholder's agent, attorney-in-fact and proxy (with full
power of substitution), for in the name, place and stead of such Shareholder, to
vote (or cause to be voted) the Shares held of record or beneficially owned by
such Shareholder in favor of the approval of the Merger Agreement and any
actions required in furtherance thereof; (ii) against any action or agreement
that would result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger
Agreement; (iii) in favor of any amounts proposed to be paid to directors,
employees or former employees of the Company under the Keystone Automotives
Operations, Inc. 2003 Transaction Bonus Plan and submitted to shareholders of
the Company for their approval in a manner intended to satisfy the requirements
of Section 280G(b)(5) of the Internal Revenue Code; and (iv) except as
contemplated or permitted by the Merger Agreement, against the following actions
(other than the Merger and the transactions contemplated by the Merger
Agreement): (A) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company; (B) a sale,
lease or transfer of a material amount of assets of the Company, or a
reorganization, recapitalization, dissolution or liquidation of the Company; (C)
any change in a majority of the persons who constitute the board of directors of
the Company; (D) any amendment of the Company Articles of Incorporation or
By-Laws; or (E) any other action which is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, or adversely affect the
Merger and the transactions contemplated by this Agreement and the Merger
Agreement.
(b) Each Shareholder hereby affirms that the proxy set forth in this
Section 6 is coupled with an interest and is irrevocable until such time as this
Agreement
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terminates in accordance with its terms. Such Shareholder hereby further affirms
that the irrevocable proxy is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of such Shareholder under this Agreement. Such
Shareholder hereby ratifies and confirms all that such irrevocable proxy may
lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is
executed and intended to be irrevocable in accordance with the provisions of
Section 1759 of the BCL.
(c) The vote of the proxyholder shall control in any conflict between
the vote by the proxyholder of such Shareholder's Shares and a vote by such
Shareholder of such Shareholder's Shares.
7. Termination. Except as otherwise provided herein, the covenants and
agreements contained in Sections 1, 2, 4, 5 and 6 hereof shall terminate on the
earliest to occur of: (i) in the event the Merger Agreement is terminated in
accordance with the terms thereof, concurrently with such termination; (ii) in
the event the Merger is consummated, upon the Effective Time of the Merger; and
(iii) the date specified in writing by mutual agreement of the parties hereto.
8. General Release. Effective as of the Closing Date, each Shareholder
on his or its own behalf and on behalf of his or its heirs, successors, assigns,
executors, and personal representatives hereby releases and discharges the
Company and its predecessors, successors (by merger or otherwise), parents,
subsidiaries, affiliated entities, divisions and assigns, together with each and
every of their present, past and future officers, directors, shareholders,
general partners, limited partners, employees and agents and the heirs, personal
representatives and executors of same (herein collectively referred to as the
"Releasees"), from any and all suits, causes of action, complaints, obligations,
demands, or claims of any kind, whether in law or in equity, direct or indirect,
known or unknown, suspected or unsuspected (hereinafter "Claims"), which such
Shareholder ever had, now has, or may have against the Releasees or any one of
them, solely in such Shareholder's capacity as a shareholder of the Company,
arising out of or relating to any matter, thing or event occurring up to and
including the date of Closing; provided, however, that nothing herein shall be
deemed to release any Claim which a Shareholder may have against the Company
arising out of the Merger Agreement, including, without limitation the right to
receive Merger Consideration and the rights to indemnification as set forth
therein.
9. Shareholders' Agreement. In the event that the Merger is
consummated, each Shareholder and the Company agree that the Shareholders'
Agreement is hereby terminated effective as of the Effective Time of the Merger.
10. Registration Rights Agreement. In the event that the Merger is
consummated, each Shareholder and the Company agree that the Registration Rights
Agreement is hereby terminated effective as of the Effective Time of the Merger.
11. Pledge Agreements. The terms and conditions of this Agreement are
subject to the rights of the Agent under each of the Pledge Agreements to vote
the
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Shares upon the occurrence of an "Event of Default" as defined in the Pledge
Agreements.
12. Miscellaneous.
(a) Further Assurances. From time to time, at the other party's
request and without further consideration, Acquiror, the Holder Representative,
the Company and each of the Shareholders shall execute and deliver such
additional documents and take all such further lawful action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement in accordance with
the terms and conditions hereof.
(b) Legend on Stock Certificates. Each Shareholder agrees and
acknowledges that the Company is hereby authorized to endorse each certificate
representing any Shares subject to this Agreement with a legend reading
substantially as follows:
"The shares evidenced hereby are subject to a Voting Agreement
and Irrevocable Proxy (a copy of which may be obtained upon
written request from Keystone Automotive Operations, Inc.), and
by accepting any interest in such shares the person accepting
such interest shall be deemed to agree to and shall become bound
by all the provisions of said Voting Agreement and Irrevocable
Proxy."
(c) Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof.
(d) Assignment. This Agreement shall not be assigned by any party
hereto, by operation of law or otherwise, without the prior written consent of
the other parties, and any purported assignment without such consent shall be
null and void; provided, however, that the Holder Representative may assign, in
its sole discretion, its rights and obligations hereunder to any successor
Holder Representative appointed in accordance with the Merger Agreement;
provided, further, that the Acquiror may assign, in its sole discretion, its
rights and obligations hereunder to any controlled Affiliate of the Acquiror.
All covenants and agreements contained in this Agreement by or on behalf of the
parties hereto shall be binding upon and inure to the benefit of the parties
hereto and their respective permitted successors and assigns.
(e) Amendments. This Agreement may be amended or modified in whole or
in part, only by a duly authorized agreement in writing executed in the same
manner as this Agreement and which makes reference to this Agreement; provided,
however, Exhibit A may be amended by the Holder Representative to add additional
Shareholders.
(f) Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile transmission) and shall
be given
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by (i) courier service guaranteeing either same day or next business day
delivery, (ii) United States overnight express mail, return receipt requested,
or (iii) facsimile transmission. All such notices, requests and communications
hereunder shall be delivered to the respective parties at the following
addresses: (A) if to Acquiror or the Holder Representative, to its address set
forth in and in accordance with the Merger Agreement; and (B) if to any
Shareholder, to such Shareholder's address set forth on Exhibit A hereto; and
(C) if to the Company, to the Company's address set forth in and in accordance
with the Merger Agreement; or, in each case, to such other address as the Person
to whom notice is given may have previously furnished to the other parties
hereto in writing in the manner set forth above. In addition, al such notices,
requests and communications hereunder shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5:00 p.m., local time, in
the place of receipt and such day is a Business Day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding Business Day in the place of receipt.
(g) Severability. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. The parties further agree
that if any provision contained herein is, to any extent, held invalid or
unenforceable in any respect under the laws governing this Agreement, they shall
take any actions necessary to render the remaining provisions of this Agreement
valid and enforceable to the fullest extent permitted by law and, to the extent
necessary, shall amend or otherwise modify this Agreement to replace any
provision contained herein that is held invalid or unenforceable with a valid
and enforceable provision giving effect to the intent of the parties.
(h) Specific Performance. Each Shareholder recognizes and acknowledges
that a breach by it of any covenant or agreement contained in this Agreement
will cause Acquiror and the Holder Representative to sustain damages for which
they would not have an adequate remedy at law for money damages, and therefore
such Shareholder agrees that in the event of any such breach Acquiror and the
Holder Representative, and each of them, shall be entitled to seek the remedy of
specific performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which Acquiror and the
Holder Representative, or each of them, may be entitled, at law or in equity.
Each Shareholder, to the maximum extent permitted by law, hereby waives any
defenses such Shareholder may have to the remedy of specific performance
provided for herein.
(i) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any thereof
by any party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
(j) No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its
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obligations hereunder, and any custom or practice of the parties at variance
with the terms hereof, shall not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand such
compliance.
(k) No Third Party Beneficiaries. This Agreement is not intended to be
for the benefit of, and shall not be enforceable by, any Person who or which is
not a party hereto.
(l) Obligations Several and Not Joint. The obligations of each
Shareholder under and pursuant to this Agreement are several and not joint with
any other Shareholder.
(m) Interpretation. In this Agreement, unless otherwise specified or
where the context otherwise requires, (i) the headings of particular provisions
of this Agreement are inserted for convenience only and will not be construed as
a part of this Agreement or serve as a limitation or expansion on the scope of
any term or provision of this Agreement, (ii) words importing any gender shall
include other genders, (iii) words importing the singular only shall include the
plural and vice versa, (iv) the words "include," "includes" or "including" shall
be deemed to be followed by the words "without limitation, (v) the words
"hereof," "herein" and "herewith" and words of similar import shall, unless
otherwise stated, be construed to refer to this Agreement as a whole and not to
any particular provision of this Agreement, (vi) references to "Sections" or
"Schedules" shall be to Sections or Schedules of or to this Agreement, (vii)
references to any Person include the successors and permitted assigns of such
Person, and (viii) references to any agreement or contract, unless otherwise
stated, are to such agreement or contract as amended, modified or supplemented
from time to time in accordance with the terms hereof and thereof.
(n) Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania without regard to
its principals of conflicts of law.
(o) Jurisdiction; WAIVER OF TRIAL BY JURY. Any proceeding or action
arising out of or relating to this Agreement or the transactions contemplated
hereby may be brought in the courts of Pennsylvania located in the County of
Lackawanna, or, if it has or can acquire jurisdiction, in the United States
District Court for the Middle District of Pennsylvania located therein, and each
of the parties irrevocably submits to the exclusive jurisdiction of each such
court in any such proceeding or action, waives any objection it may now or
hereafter have to venue or to convenience of forum, agrees that all claims in
respect of the proceeding or action shall be heard and determined only in any
such court, and agrees not to bring any proceeding or action arising out of or
relating to this Agreement or the transactions contemplated hereby in any other
court. EACH OF THE PARTIES WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
HEREBY.
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(p) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
(q) Facsimile Execution; and Counterparts. This Agreement may be
executed (including by facsimile) in two or more counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same Agreement.
[Signature Pages Follow]
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IN WITNESS WHEREOF, Acquiror, the Holder Representative, the Company
and each Shareholder have executed and delivered this Agreement as of the day
and year first above written.
Acquiror:
KEYSTONE AUTOMOTIVE HOLDINGS, INC.
By: /s/ Xxxxx Xxxxx-XXX
------------------------------------
Name: Xxxxx Xxxxx-XXX
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Title: VICE PRESIDENT
-----------------------------
Holder Representative:
LAGE LLC
By: /s/ XXXXXXX XXXXX
------------------------------------
Name: XXXXXXX XXXXX
------------------------------
Title: PRESIDENT
-----------------------------
Company:
KEYSTONE AUTOMOTIVE
OPERATIONS, INC.
By: /s/ XXXXXX XXXXX
------------------------------------
Name: XXXXXX XXXXX
------------------------------
Title: EXECUTIVE VICE PRESIDENT
-----------------------------
[Shareholder Signature Pages Follow]
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Shareholder Signature Page to
Voting Agreement and Irrevocable Proxy
The undersigned hereby confirms that it has received and reviewed a
copy of the Voting Agreement and Irrevocable Proxy and, by execution hereof,
hereby agrees to be bound by the terms and conditions thereof as a Shareholder.
Shareholder:
ADVENT GLOBAL GECC III LP
By: Advent Global Management Limited
Partnership, its general partner
By: Advent International Limited Partnership,
its general partner
By: Advent International Corporation, its
general partner
By: Xxxxxx X. Xxxxxx, Xx.
-----------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
GLOBAL PRIVATE EQUITY III LP
ADVENT PPGM GLOBAL LP
By: Advent International Limited Partnership,
its general partner
By: Advent International Corporation, its
general partner
By: Xxxxxx X. Xxxxxx, Xx.
-----------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
ADVENT PARTNERS GPE III LP
ADVENT PARTNERS (NA) GPE III LP
ADVENT PARTNERS LP
By: Advent International Corporation, its
general partner
By: Xxxxxx X. Xxxxxx, Xx.
-----------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
Shareholder Signature Page to
Voting Agreement and Irrevocable Proxy
The undersigned hereby confirms that it has received and reviewed a
copy of the Voting Agreement and Irrevocable Proxy and, by execution hereof,
hereby agrees to be bound by the terms and conditions thereof as a Shareholder.
Shareholder:
Xxxxxx Xxxxx
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[Name of Shareholder]
/s/ Xxxxxx Xxxxx
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Signature
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Print Name of Signatory
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Print Title of Signatory if
signing on behalf of an Entity
Shareholder Signature Page to
Voting Agreement and Irrevocable Proxy
The undersigned hereby confirms that it has received and reviewed a
copy of the Voting Agreement and Irrevocable Proxy and, by execution hereof,
hereby agrees to be bound by the terms and conditions thereof as a Shareholder.
Shareholder:
Xxxxxx X. Vor Broker
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[Name of Shareholder]
/s/ Xxxxxx X. Vor Broker
--------------------------------------------
Signature
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Print Name of Signatory
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Print Title of Signatory if
signing on behalf of an Entity
Shareholder Signature Page to
Voting Agreement and Irrevocable Proxy
The undersigned hereby confirms that it has received and reviewed a
copy of the Voting Agreement and Irrevocable Proxy and, by execution hereof,
hereby agrees to be bound by the terms and conditions thereof as a Shareholder.
Shareholder:
Xxxxxxx Xxxx
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[Name of Shareholder]
/s/ Xxxxxxx Xxxx
--------------------------------------------
Signature
Xxxxxxx Xxxx
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Print Name of Signatory
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Print Title of Signatory if
signing on behalf of an Entity
GENERAL ELECTRIC CAPITAL CORPORATION
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
August 29, 2003
Advent International Corporation
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Dear Sirs:
In connection with the proposed acquisition of Keystone Automotive
Operations, Inc. (the "Merger") pursuant to the certain Agreement and Plan of
Merger dated August [__], 2003, by and among Keystone Automotive Holdings, Inc.,
Keystone Merger Sub, Inc., Keystone Automotive Operations, Inc. ("Keystone") and
LAGE LLC (the "Merger Agreement"), General Electric Capital Corporation
("GECC") hereby authorizes Advent International Corporation ("Advent"), on
behalf of the Advent Global GECC III, Limited Partnership (the "Partnership"),
to sign on GECC's behalf with respect to the following documents:
. Voting Agreement and Irrevocable Proxy, in substantially the form
attached hereto as Exhibit A together with such changes, additions
or amendments thereto (the "Voting Agreement");
. Holder Representative Agreement, substantially in the form
attached hereto as Exhibit B together with such changes, additions
or amendments thereto (the "Holder Representative Agreement"); and
. any other documents which Advent determines in its reasonable
judgment are necessary or appropriate to effectuate the Merger
Agreement, the Voting Agreement and the Holder Representative
Agreement, and each of the transactions contemplated thereby.
GECC also hereby authorizes Advent, on behalf of the Partnership, to
take all actions which Advent in its reasonable judgment determines are
necessary to effectuate the Merger, each of the agreements referenced herein and
each of the transactions contemplated thereby
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Dept. Operations Manager
Shareholder Signature Page to
Voting Agreement and Irrevocable Proxy
The undersigned hereby confirms that it has received and reviewed a
copy of the Voting Agreement and Irrevocable Proxy and, by execution hereof,
hereby agrees to be bound by the terms and conditions thereof as a Shareholder.
Shareholder:
R. Xxxxxxxx Xxxxxxxx
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[Name of Shareholder]
/s/ R. Xxxxxxxx Xxxxxxxx
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Signature
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Print Name of Signatory
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Print Title of Signatory if
signing on behalf of an Entity
Shareholder Signature Page to
Voting Agreement and Irrevocable Proxy
The undersigned hereby confirms that it has received and reviewed a
copy of the Voting Agreement and Irrevocable Proxy and, by execution hereof,
hereby agrees to be bound by the terms and conditions thereof as a Shareholder.
Shareholder:
Xxxxx Xxxxxxxx
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[Name of Shareholder]
/s/ Xxxxx Xxxxxxxx
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Signature
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Print Name of Signatory
VP MARKETING
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Print Title of Signatory if
signing on behalf of an Entity
Shareholder Signature Page to
Voting Agreement and Irrevocable Proxy
The undersigned hereby confirms that it has received and reviewed a
copy of the Voting Agreement and Irrevocable Proxy and, by execution hereof,
hereby agrees to be bound by the terms and conditions thereof as a Shareholder.
Shareholder:
Xxxxxx Latharis
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[Name of Shareholder]
/s/ Xxxxxx Latharis
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Signature
National Sales Mgr.
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Print Name of Signatory
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Print Title of Signatory if
signing on behalf of an Entity
Shareholder Signature Page to
Voting Agreement and Irrevocable Proxy
The undersigned hereby confirms that it has received and reviewed a
copy of the Voting Agreement and Irrevocable Proxy and, by execution hereof,
hereby agrees to be bound by the terms and conditions thereof as a Shareholder.
Shareholder:
Xxxxxx Xxxxxxx
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[Name of Shareholder]
/s/ Xxxxxx Xxxxxxx
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Signature
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Print Name of Signatory
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Print Title of Signatory if
signing on behalf of an Entity
Shareholder Signature Page to
Voting Agreement and Irrevocable Proxy
The undersigned hereby confirms that it has received and reviewed a
copy of the Voting Agreement and Irrevocable Proxy and, by execution hereof,
hereby agrees to be bound by the terms and conditions thereof as a Shareholder.
Shareholder:
Xxxxxxx Xxxxxxxxxxx
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[Name of Shareholder]
/s/ Xxxxxxx Xxxxxxxxxxx
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Signature
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Print Name of Signatory
SR. VP. Sales
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Print Title of Signatory if
signing on behalf of an Entity
Shareholder Signature Page to
Voting Agreement and Irrevocable Proxy
The undersigned hereby confirms that it has received and reviewed a
copy of the Voting Agreement and Irrevocable Proxy and, by execution hereof,
hereby agrees to be bound by the terms and conditions thereof as a Shareholder.
Shareholder:
Xxxxxx X. Xxxxxx Xx
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[Name of Shareholder]
/s/ Xxxxxx X. Xxxxxx Xx
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Signature
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Print Name of Signatory
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Print Title of Signatory if
signing on behalf of an Entity
Shareholder Signature Page to
Voting Agreement and Irrevocable Proxy
The undersigned hereby confirms that it has received and reviewed a
copy of the Voting Agreement and Irrevocable Proxy and, by execution hereof,
hereby agrees to be bound by the terms and conditions thereof as a Shareholder.
Shareholder:
Xxxxx Xxxx
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[Name of Shareholder]
/s/ Xxxxx Xxxx
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Signature
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Print Name of Signatory
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Print Title of Signatory if
signing on behalf of an Entity
Shareholder Signature Page to
Voting Agreement and Irrevocable Proxy
The undersigned hereby confirms that it has received and reviewed a
copy of the Voting Agreement and Irrevocable Proxy and, by execution hereof,
hereby agrees to be bound by the terms and conditions thereof as a Shareholder.
Shareholder:
Xxxxxxx Koualick
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[Name of Shareholder]
/s/ Xxxxxxx Koualick
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Signature
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Print Name of Signatory
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Print Title of Signatory if
signing on behalf of an Entity
Shareholder Signature Page to
Voting Agreement and Irrevocable Proxy
The undersigned hereby confirms that it has received and reviewed a
copy of the Voting Agreement and Irrevocable Proxy and, by execution hereof,
hereby agrees to be bound by the terms and conditions thereof as a Shareholder.
Shareholder:
Xxxxx Xxxxx
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[Name of Shareholder]
/s/ Xxxxx Xxxxx
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Signature
Xxxxx Xxxxx
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Print Name of Signatory
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Print Title of Signatory if
signing on behalf of an Entity
-12-
EXHIBIT A
SHAREHOLDERS
Number of
Number of Shares of
Shares of Series A
Common Preferred
Name and Address Stock Stock
----------------------------------- --------- ---------
GLOBAL PRIVATE EQUITY III LIMITED 2,314,086 27,380.99
PARTNERSHIP
c/o Advent International Corporation
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile No.: 617.946.2907
ADVENT PGGM GLOBAL LIMITED 354,618 4,195.86
PARTNERSHIP
c/o Advent International Corporation
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile No.: 617.946.2907
ADVENT PARTNERS GPE III, LIMITED 34,941 413.42
PARTNERSHIP
c/o Advent International Corporation
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile No.: 617.946.2907
ADVENT PARTNERS (NA) GPE-III, L.P. 10,385 122.92
c/o Advent International Corporation
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile No.: 617.946.2907
ADVENT PARTNERS, LIMITED PARTNERSHIP 19,580 231.62
c/o Advent International Corporation
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile No.: 617.946.2907
ADVENT GLOBAL GECC III LIMITED 2,733,610 32,344.8
PARTNERSHIP
c/o Advent International Corporation
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile No.: 617.946.2907
XXXXXXXXXX PARTNERS II, L.P. 2,733,610 32,344.8
c/x Xxxxxxxxxx & Co., LLC
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Facsimile No.: 203.552.3550
Xxxxxx Vor Broker 450,800* 0
c/o Keystone Automotive Operations, Inc.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Vor Broker
Facsimile No.: 000-000-0000
Xxxxxx Xxxxxxx 7,500* 0
c/o Keystone Automotive Operations, Inc.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Facsimile No.: 000-000-0000
Xxxxxx Xxxxxxxxx 5,000* 0
c/o Keystone Automotive Operations, Inc.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Facsimile No.: 000-000-0000
Xxxxxxx Xxxxxxxxxxx 55,000* 0
c/o Keystone Automotive Operations, Inc.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxxx
Facsimile No.: 000-000-0000
Xxxxxx Xxxxxx 4,833 0
c/o Keystone Automotive Operations, Inc. 7,667*
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile No.: 000-000-0000
Xxxxxx Xxxxx
c/o Keystone Automotive Operations, Inc. 111,100 0
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Facsimile No.: 000-000-0000
Xxxxxxxx Xxxxxxxx 73,545 219.48
c/o Keystone Automotive Operations, Inc.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxx
Facsimile No.: 000-000-0000
Xxxxxxx Xxxxx 285,250 2730.38
c/o Keystone Automotive Operations, Inc.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Facsimile No.: 000-000-0000
Xxxxxxx Xxxx 333,237.5 2,379.095
RD 2
000 Xxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Facsimile No.: ________________
Xxxxx Xxxxx 333,237.5 2,379.095
c/o Inner Harmony
0 Xxxxxxxx Xxxxxxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Facsimile No.: ________________
Xxxx Xxxxxxxx 182,920 1,513.6
c/o Keystone Automotive Operations, Inc.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Facsimile No.: 000-000-0000
Xxxxx Xxxxxxx 333,237.5 2,379.095
0 Xxxxxx Xxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Facsimile No.: ________________
Xxxxx Xxxx 157,330 1,210.88
c/o Keystone Automotive Operations, Inc.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxx
Facsimile No.: 000-000-0000
Xxxxxx Xxxxx 333,237.5 2,379.095
c/o Keystone Automotive Operations, Inc.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Facsimile No.: 000-000-0000
Xxxxx Xxxxxx 17,400 205.42
c/o Deutsche Bank
00 Xxxx 00xx Xx.
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Facsimile No.: ________________
Xxxxxxx Xxxxxxxx 157,330 1,210.88
c/o Keystone Automotive Operations, Inc.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Facsimile No.: 000-000-0000
Xxxxxxx Xxxxxxxx 157,330 1,210.88
c/o Keystone Automotive Operations, Inc.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Facsimile No.: 000-000-0000
R. Xxxxxxxx Xxxxxxxx 12,000 0
0000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: R. Xxxxxxxx Xxxxxxxx
Facsimile No.: ________________
Xxxxxx Xxxxxxxx 333,300 0
0000 Xxxxxxxxx Xxx.
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Facsimile No.: ________________
*These shares are represented by option and, accordingly, may only be voted to
the extent the options are exercised.
A-1
Schedule 3(a)
Shares owned by Advent Global GECC III LP may not be sold or voted without the
written consent of GE Capital Corporation.
