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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. __)
Keystone Automotive Industries, Inc.
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(Name of Issuer)
Common Stock, No Par Value
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(Title of Class of Securities)
49338N 10 9
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(CUSIP Number)
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Copy to:
Leon Schigiel, President
Schigiel Consultants, Inc., General Partner William R. Nuernberg, Esq.
Schigiel Enterprises, Ltd. Eckert Seamans Cherin & Mellott, LC
3328 NE 169 Street 18th Floor, 701 Brickell Avenue
North Miami Beach, FL 33160 Miami, FL 33131
(305) 885-6500 (305) 373-9100
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
January 1, 1998
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(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box. [ ]
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SCHEDULE 13D
CUSIP No. 49338N 10 9
1. Name of Reporting Person: Schigiel Enterprises, Ltd.
I.R.S. Identification No.: 65-0808129
2. Check the Appropriate Box if a Member of a Group (a) [ ]
(b) [ ]
3. SEC Use Only
4. Source of Funds: SC/OO
5. Check Box if Disclosure of Legal Proceedings is
Required Pursuant To Items 2(d) or 2(e) [ ]
6. Citizenship or Place of Organization: Florida
Number of 7. Sole Voting Power: 992,000
Shares
Beneficially 8. Shared Voting Power: - 0 -
Owned by
Each 9. Sole Dispositive Power: 992,000
Reporting
Person 10. Shared Dispositive Power: - 0 -
With
11. Aggregate Amount Beneficially Owned by Each 992,000
Reporting Person:
12. Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares [ ]
13. Percent of Class Represented by Amount in Row (11): 6.8%
14. Type of Reporting Person: PN
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ITEM 1. SECURITY AND ISSUER.
The title of the class of equity securities to which this
Schedule 13D relates is the Common Stock, no par value (the "Common Stock"), of
Keystone Automotive Industries, Inc. (the "Company"). The Company's principal
executive offices are located at 700 East Bonita Avenue, Pomona, California
91767.
ITEM 2. IDENTITY AND BACKGROUND.
This statement is filed on behalf of Schigiel Enterprises,
Ltd. (the "Reporting Person"), a Florida limited partnership. The sole general
partner of the Reporting Person is Schigiel Consultants, Inc. (the "General
Partner"), a Florida corporation. The sole shareholder and director of the
General Partner is Leon Schigiel ("Schigiel"), a United States citizen. The
residence and business address of the Reporting Person, the General Partner and
Schigiel is 3328 NE 169 Street, North Miami Beach, Florida 33160. Schigiel is a
director of the Company and President of Inteuro Parts Distributors, Inc.
("Inteuro"), a Florida corporation and a wholly-owned subsidiary of the Company.
The address of Inteuro is 9970 NW 89th Court, Medley, Florida 33178. The
Reporting Person is a family owned limited partnership which, together with the
General Partner, is in the business of investing in securities.
During the past five years, none of the Reporting Person, the
General Partner and Schigiel has (i) been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (ii) been a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
and as a result was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws, or finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Pursuant to an Agreement and Plan of Merger dated as of
November 14, 1997 (the "Inteuro Agreement"), Inteuro Merger, Inc., a
wholly-owned subsidiary of the Company, merged with and into Inteuro, with
Inteuro being the surviving corporation ("Inteuro Merger"). Pursuant to a
separate Agreement and Plan of Merger (the "CBC Agreement"), CBC Merger, Inc., a
wholly-owned subsidiary of the Company, merged with and into Car Body Concepts,
Inc. ("CBC"), with CBC being the surviving corporation ("CBC Merger"). Schigiel
owned fifty percent (50%) of the issued and outstanding voting securities of
Inteuro and forty-five percent (45%) of the issued and outstanding voting
securities of CBC. Under the Inteuro Agreement and the CBC Agreement, the total
consideration paid to Schigiel was 992,000 shares of Common Stock of the
Company. Promptly following the Inteuro Merger and the CBC Merger, Schigiel
contributed the Common Stock to the Reporting Person.
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ITEM 4. PURPOSE OF TRANSACTION.
The Reporting Person (which for purposes of Items 4, 5 and 6,
shall include the General Partner and Schigiel) has no present plans or
proposals to change the Company's business, corporate structure, capitalization,
management or dividend policy. However, pursuant to the Inteuro Agreement,
Schigiel was appointed to the Board of Directors of the Company, and Schigiel
intends to exercise his business judgment in that capacity.
Except as set forth in this Item 4 and Item 6, the Reporting
Person has no present plans or proposals which relate to or would result in any
of the following (although the Reporting Person reserves the right to develop
such plans or proposals or any other plans relating to the Company and to take
action with respect thereto): (i) the acquisition by any person of additional
securities of the Company, or the disposition of securities of the Company; (ii)
an extraordinary corporate transaction, such as a merger, reorganization or
liquidation, involving the Company or any of its subsidiaries; (iii) a sale or
transfer of a material amount of assets of the Company or any of its
subsidiaries; (iv) any change in the present board of directors or management of
the Company, including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the board; (v) any material
change in the present capitalization or dividend policy of the Company; (vi) any
other material change in the Company's business or corporate structure; (vii)
changes in the Company's certificate of incorporation, bylaws, or instruments
corresponding thereto or other actions which may impede the acquisition of
control of the Company by any person; (viii) causing a class of securities of
the Company to be delisted from a national securities exchange or to cease to be
authorized to be quoted in an inter-dealer quotation system of a registered
national securities association; (ix) a class of equity securities of the
Company becoming eligible for termination of registration pursuant to Section
12(g)(4) of the Exchange Act; or (x) any action similar to any of those
enumerated above.
The Reporting Person, without the consent of the Company, may
purchase additional shares of Common Stock in the open market or in private
transactions at any time, although it has no present plans to do so.
ITEM 5. INTEREST IN SECURITIES OF ISSUER.
The Reporting Person beneficially owns and has sole voting and
dispositive power with respect to 992,000 shares of Common Stock representing
approximately 6.8% of the Common Stock outstanding at January 1, 1998. This
percentage was calculated based on the number of shares of Common Stock of the
Company issued and outstanding as of November 14, 1997 (12,642,000) plus
2,000,000 shares issued on January 1, 1998 pursuant to the Inteuro Merger and
the CBC Merger.
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Except as described herein, no transactions in Common Stock
were effected during the past 60 days by the Reporting Person.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
The Inteuro Merger and the CBC Merger were accounted for as
poolings of interests. Pursuant to Affiliate Agreements entered into among the
Company, Inteuro and Inteuro shareholders and among the Company, CBC and CBC
shareholders, respectively, each dated as of November 14, 1997 ("Affiliate
Agreements"), the shareholders of Inteuro and the shareholders of CBC are
restricted from selling, assigning, transferring or otherwise disposing of any
interest in any shares of Common Stock of the Company, or in any way reducing
their ownership risk or investment in any shares of Common Stock of the Company
until such time as the Company publishes the financial results covering a period
of at least 30 days of combined operations of Keystone and Inteuro and CBC,
respectively.
The shares of Common Stock of the Company received in the
Inteuro Merger and the CBC Merger were not registered under the Securities Act
of 1933, as amended (the "Securities Act") in reliance upon the exemption
provided in Section 4(2) thereof. The Affiliate Agreements also prohibit the
shareholders of Inteuro and CBC from selling, transferring, pledging,
hypothecating or otherwise disposing of any interest in any shares of the Common
Stock of the Company, including the shares received pursuant to the Inteuro
Merger and the CBC Merger, unless (i) such shares are first registered or
otherwise sold in compliance with the Securities Act or (ii) the sale, transfer
or disposition is exempt from the registration requirements of the Securities
Act; provided, however, that the shareholders may make bona fide gifts or
distributions without consideration of such securities so long as the recipients
thereof agree not to sell, transfer or otherwise dispose of such securities
except as provided in the Affiliate Agreements.
The Company granted to the shareholders of Inteuro and CBC,
the right to demand registration of up to 50% of the Common Stock acquired by
such shareholders, by Registrations Rights Agreements dated as of December 31,
1997, between the Company and the shareholders of Inteuro and CBC, respectively.
On February 12, 1998, the Inteuro shareholders and the CBC shareholders
exercised such rights and requested the Company to file a registration statement
with the Securities and Exchange Commission with respect to the maximum number
of shares (which in the case of the Reporting Person is 496,000 shares of Common
Stock).
Other than as set forth herein and elsewhere in this Schedule
13D, the Reporting Person has no contracts, arrangement, understandings or
relationships (legal or otherwise) with any other person with respect to any of
the securities of the Company, including but not limited to, any relating to the
transfer or voting of any such securities,
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finder's fees, joint ventures, loan or option arrangements, put or calls,
guarantees of profits, division of profits or loss or the giving or withholding
of proxies.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
A. Registration Rights Agreement, dated as of December 31, 1997, by and
among the Company and the shareholders of Inteuro (including
Schigiel, with respect to the Inteuro Merger).
B. Registration Rights Agreement, dated as of December 31, 1997, by and
among the Company and the shareholders of CBC (including Schigiel,
with respect to the CBC Merger).
C. Affiliate Agreement, dated as of December 31, 1997, by and among the
Company, Inteuro and the Inteuro shareholders (including Schigiel,
with respect to the Inteuro Merger).
D. Affiliate Agreement, dated as of December 31, 1997, by and among the
Company, CBC and the CBC shareholders (including Schigiel, with
respect to the CBC Merger).
SIGNATURES.
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
SCHIGIEL ENTERPRISES, LTD.
By: SCHIGIEL CONSULTANTS, INC.,
its General Partner
March 12, 1998 By: /s/ Leon Schigiel
- ---------------------------- -----------------------------------------
Date Leon Schigiel, President
<PAGE> 7
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and effective as of December
31, 1997, by and among KEYSTONE AUTOMOTIVE INDUSTRIES, INC., a California
corporation ("Keystone"), and the persons whose names appear on the signature
page under the caption "Shareholders" (collectively, the "Shareholders" and
individually a "Shareholder").
A. The Shareholders own all the issued and outstanding shares of the
capital stock of Inteuro Parts Distributors, Inc., a Florida corporation
("Inteuro").
B. Pursuant to that certain Agreement and Plan of Merger dated as of
November 14, 1997, by and among Keystone, Inteuro Merger, Inc., a wholly owned
subsidiary of Keystone (the "Subsidiary"), Inteuro and the Shareholders, among
other things, (i) the Subsidiary will be merged with and into Inteuro (the
"Merger"), (ii) all shares of the capital stock of Inteuro issued and
outstanding immediately prior to the Merger will be converted into the right to
receive an aggregate of 1,840,000 shares of the Common Stock of Keystone
(subject to adjustment), and (iii) Leo Schigiel, a director, officer and a
Shareholder, will become a director of Keystone.
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein and in the Merger Agreement, and intending to be legally bound hereby,
the parties agree as follows:
1. GRANT OF REGISTRATION RIGHTS.
(a) At any time subsequent to Keystone's publication of
combined results of operations of Keystone and Inteuro for at least thirty days
of combined operations after the consummation of the Merger and prior to the
first anniversary of the consummation of the Merger, upon receipt of a written
request from both of the Shareholders, Keystone agrees to file a Registration
Statement on Form S-3 with the Securities and Exchange Commission (the "SEC")
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to a maximum of 920,000 shares of its Common Stock (the "Shares") within
60 days of such written request, and to use its best efforts to cause said
Registration Statement to become effective. Keystone agrees to keep said
Registration Statement effective for a 180 day period, after which time, the
Shareholders agree that Keystone may deregister the Shares.
(b) Keystone shall not be obligated to register shares of its
Common Stock on behalf of the Shareholders, whether such shares were obtained in
connection with the Merger or otherwise, on more than one occasion.
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2. GENERAL.
(a) Keystone shall indemnify, to the extent permitted by law,
each holder of Shares included in any registration statement pursuant to Section
1(a) against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
the same are caused by or contained in any information furnished in writing to
Keystone by such holder expressly for use therein or by such holder's failure to
deliver a copy of the registration statement or prospectus or any amendments or
supplements thereto after Keystone has furnished such holder with a sufficient
number of copies of the same.
(b) Each holder of Shares included in any registration
statement pursuant to Section 1(a) shall indemnify, to the extent permitted by
law, Keystone, its officers and directors and each person who controls Keystone
(within the meaning of the Securities Act) against all losses, claims, damages,
liabilities and expenses caused by any untrue or alleged untrue statement of
material fact contained in any registration statement, prospectus or preliminary
prospectus or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, to the extent the same are caused by or contained in any information
furnished in writing to Keystone by such holder expressly for use therein or by
such holder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after Keystone has furnished
such holder with a sufficient number of copies of the same. In connection with
an underwritten offering, if applicable, such holder shall indemnify the
underwriters, their officers and directors and each person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of Keystone.
(c) With respect to each inclusion of Shares in a registration
statement pursuant to Section 1(a), all fees, costs and expenses of and
incidental to such registration and public offering in connection therewith
shall be borne by Keystone; PROVIDED, however, that holders participating in any
such registration shall bear their pro rata share of any underwriting discount
or commissions and shall bear their own legal and accounting expenses incurred
in reviewing independent of Keystone the registration statement or prospectus.
(d) Any Shares which are included in an underwritten
registration, if applicable, shall be sold by the holder thereof pursuant to the
terms of the underwriting agreement among Keystone, the managing underwriters
and the holders of the securities included in such registration.
3. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties and agreements made by the parties hereto in this
Agreement (including, but not limited to, statements contained in any schedule
or certificate or other instrument delivered
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by or on behalf of any party hereto or in connection with the transactions
contemplated hereby) shall survive the date hereof and any investigations,
inspections, examinations or audits made by or on behalf of any party.
4. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof, and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, relating to the subject matter of this Agreement. No
supplement, modification, waiver or termination of this Agreement shall be valid
unless executed by the party to be bound thereby. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provisions hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
5. NOTICES. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been given (i) if
personally delivered, when so delivered, (ii) if mailed, one (1) week after
having been placed in the mail, registered or certified, postage prepaid,
addressed to the party to whom it is directed at the address set forth on the
signature page hereof or (iii) if given by telex or telecopier, when such notice
or other communication is transmitted to the telex or telecopier number
specified on the signature page hereof and the appropriate answer back or
telephonic confirmation is received. Any party may change the address to which
such notices are to be addressed by giving the other parties notice in the
manner herein set forth.
6. GOVERNING LAW. The validity, construction and interpretation of this
Agreement shall be governed in all respects by the laws of the State of
California applicable to contracts made and to be performed wholly within that
State.
7. HEADINGS. Section and subsection headings are not to be considered
part of this Agreement and are included solely for convenience and reference and
in no way define, limit or describe the scope of this Agreement or the intent of
any provisions hereof.
8. ATTORNEYS' FEES. In the event any party takes legal action to
enforce any of the terms of this Agreement, the unsuccessful party to such
action shall pay the successful party's expenses (including, but not limited to,
attorneys' fees and costs) incurred in such action.
9. THIRD PARTIES. Nothing in this Agreement, expressed or implied, is
intended to confer upon any person other than the parties hereto and their
successors and assigns any rights or remedies under or by reason of this
Agreement.
10. INJUNCTIVE RELIEF. Each party hereby acknowledges and agrees that
it would be difficult to fully compensate the other party for damages resulting
from the breach or threatened breach of any provision of this Agreement and,
accordingly, that each party shall be entitled to temporary and injunctive
relief, including temporary restraining orders,
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preliminary injunctions and permanent injunctions, to enforce such provisions
without the necessity of proving actual damages or being required to post any
bond or undertaking in connection with any such action. This provision with
respect to injunctive relief shall not diminish, however, the right of either
party to any other relief or to claim and recover damages.
11. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each one of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
12. FURTHER ASSURANCES. Each party hereto shall, from time to time at
and after the date hereof, execute and deliver such instruments, documents and
assurances and take such further actions as the other party may reasonably
request to carry out the purpose and intent of this Agreement.
13. JURISDICTION.
(a) Each party hereto irrevocably submits to the non-exclusive
jurisdiction of any court of the State of California or the United States of
America sitting in the City of Los Angeles over any suit, action or proceeding
arising out of or relating to this Agreement. To the fullest extent it may
effectively do so under applicable law, each party irrevocably waives and agrees
not to assert, by way of motion, as a defense or otherwise, any claim that it is
not subject to the jurisdiction of any such court, any objection that it may now
or hereafter have to the establishment of the venue of any such suit, action or
proceeding brought in any such court and any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
(b) Each party hereto agrees, to the fullest extent it may
effectively do so under applicable law, that a judgment in any suit, action or
proceeding of the nature referred to hereinabove brought in any such court shall
be conclusive and binding upon such person and its successors and assigns and
may be enforced in the courts of the United States of America or the State of
California (or any other courts to the jurisdiction of which such person is or
may be subject) by a suit upon such judgment.
(c) Each party hereto consents to process being served in any
suit, action or proceeding of the nature referred to hereinabove by mailing a
copy thereof by registered or certified mail, postage prepaid, return receipt
requested, to the address of the other set forth in Section 16. Each party
agrees that such service (i) shall be deemed in every respect effective service
of process upon such person in any such suit, action or proceeding and (ii)
shall, to the fullest extent permitted by law, be taken and held to be valid
personal service upon and personal delivery to such Person.
14. SEVERABLE PROVISIONS. If any term, provision, covenant or
restriction herein, or the application thereof to any circumstance, shall, to
any extent, be held by a court of
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competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions herein and the application
thereof to any other circumstances, shall remain in full force and effect, shall
not in any way be affected, impaired or invalidated, and shall be enforced to
the fullest extent permitted by law.
15. SEC REPORTS. Keystone agrees to make all filings required under the
Securities Exchange Act of 1934, as amended, so long as any of the Shareholders
own shares of Keystone Common Stock acquired in the Merger.
IN WITNESS WHEREOF, the undersigned parties have executed and delivered
this Agreement as of the day and year first above written.
KEYSTONE: KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
By /s/ Charles J. Hogarty
-------------------------------------------------
Charles J. Hogarty, Chief Executive Officer
700 East Bonita Avenue
Pomona, California 91767
SHAREHOLDERS:
/s/ Leon Schigiel
-----------------------------------------
LEON SCHIGIEL
3328 NE 169 Street
North Miami Beach, Florida 33160
Telecopier No. (305) 947-0130
/s/ JOSEPH BICK
-----------------------------------------
JOSEPH BICK
3480 Windmill Ranch Road
Weston, Florida 33331
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EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and effective as of December
31, 1997, by and among KEYSTONE AUTOMOTIVE INDUSTRIES, INC., a California
corporation ("Keystone"), and the persons whose names appear on the signature
page under the caption "Shareholders" (collectively, the "Shareholders" and
individually a "Shareholder").
A. The Shareholders own all the issued and outstanding shares of the
capital stock of Car Body Concepts, Inc., a Florida corporation ("CBC").
B. Pursuant to that certain Agreement and Plan of Merger dated as of
November 14, 1997, by and among Keystone, CBC Merger, Inc., a wholly owned
subsidiary of Keystone (the "Subsidiary"), CBC and the Shareholders, among other
things, (i) the Subsidiary will be merged with and into CBC (the "Merger"), and
(ii) all shares of the capital stock of CBC issued and outstanding immediately
prior to the Merger will be converted into the right to receive an aggregate of
160,000 shares of the Common Stock of Keystone (subject to adjustment).
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein and in the Merger Agreement, and intending to be legally bound hereby,
the parties agree as follows:
1. GRANT OF REGISTRATION RIGHTS.
(a) At any time subsequent to Keystone's publication of
combined results of operations of Keystone and CBC for at least thirty days of
combined operations after the consummation of the Merger and prior to the first
anniversary of the consummation of the Merger, upon receipt of a written request
from each of the Shareholders, Keystone agrees to file a Registration Statement
on Form S-3 with the Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to a
maximum of 80,000 shares of its Common Stock (the "Shares") within 60 days of
such written request, and to use its best efforts to cause said Registration
Statement to become effective. Keystone agrees to keep said Registration
Statement effective for a 180 day period, after which time, the Shareholders
agree that Keystone may deregister the Shares.
(b) Keystone shall not be obligated to register shares of its
Common Stock on behalf of the Shareholders, whether such shares were obtained in
connection with the Merger or otherwise, on more than one occasion.
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2. GENERAL.
(a) Keystone shall indemnify, to the extent permitted by law,
each holder of Shares included in any registration statement pursuant to Section
1(a) against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
the same are caused by or contained in any information furnished in writing to
Keystone by such holder expressly for use therein or by such holder's failure to
deliver a copy of the registration statement or prospectus or any amendments or
supplements thereto after Keystone has furnished such holder with a sufficient
number of copies of the same.
(b) Each holder of Shares included in any registration
statement pursuant to Section 1(a) shall indemnify, to the extent permitted by
law, Keystone, its officers and directors and each person who controls Keystone
(within the meaning of the Securities Act) against all losses, claims, damages,
liabilities and expenses caused by any untrue or alleged untrue statement of
material fact contained in any registration statement, prospectus or preliminary
prospectus or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, to the extent the same are caused by or contained in any information
furnished in writing to Keystone by such holder expressly for use therein or by
such holder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after Keystone has furnished
such holder with a sufficient number of copies of the same. In connection with
an underwritten offering, if applicable, such holder shall indemnify the
underwriters, their officers and directors and each person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of Keystone.
(c) With respect to each inclusion of Shares in a registration
statement pursuant to Section 1(a), all fees, costs and expenses of and
incidental to such registration and public offering in connection therewith
shall be borne by Keystone; PROVIDED, however, that holders participating in any
such registration shall bear their pro rata share of any underwriting discount
or commissions and shall bear their own legal and accounting expenses incurred
in reviewing independent of Keystone the registration statement or prospectus.
(d) Any Shares which are included in an underwritten
registration, if applicable, shall be sold by the holder thereof pursuant to the
terms of the underwriting agreement among Keystone, the managing underwriters
and the holders of the securities included in such registration.
3. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties and agreements made by the parties hereto in this
Agreement (including, but not limited to, statements contained in any schedule
or certificate or other instrument delivered by or on behalf of any party hereto
or in connection with the transactions contemplated hereby)
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shall survive the date hereof and any investigations, inspections, examinations
or audits made by or on behalf of any party.
4. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof, and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, relating to the subject matter of this Agreement. No
supplement, modification, waiver or termination of this Agreement shall be valid
unless executed by the party to be bound thereby. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provisions hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
5. NOTICES. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been given (i) if
personally delivered, when so delivered, (ii) if mailed, one (1) week after
having been placed in the mail, registered or certified, postage prepaid,
addressed to the party to whom it is directed at the address set forth on the
signature page hereof or (iii) if given by telex or telecopier, when such notice
or other communication is transmitted to the telex or telecopier number
specified on the signature page hereof and the appropriate answer back or
telephonic confirmation is received. Any party may change the address to which
such notices are to be addressed by giving the other parties notice in the
manner herein set forth.
6. GOVERNING LAW. The validity, construction and interpretation of this
Agreement shall be governed in all respects by the laws of the State of
California applicable to contracts made and to be performed wholly within that
State.
7. HEADINGS. Section and subsection headings are not to be considered
part of this Agreement and are included solely for convenience and reference and
in no way define, limit or describe the scope of this Agreement or the intent of
any provisions hereof.
8. ATTORNEYS' FEES. In the event any party takes legal action to
enforce any of the terms of this Agreement, the unsuccessful party to such
action shall pay the successful party's expenses (including, but not limited to,
attorneys' fees and costs) incurred in such action.
9. THIRD PARTIES. Nothing in this Agreement, expressed or implied, is
intended to confer upon any person other than the parties hereto and their
successors and assigns any rights or remedies under or by reason of this
Agreement.
10. INJUNCTIVE RELIEF. Each party hereby acknowledges and agrees that
it would be difficult to fully compensate the other party for damages resulting
from the breach or threatened breach of any provision of this Agreement and,
accordingly, that each party shall be entitled to temporary and injunctive
relief, including temporary restraining orders, preliminary injunctions and
permanent injunctions, to enforce such provisions without the necessity of
proving actual damages or being required to post any bond or undertaking in
connection with any such action.
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<PAGE> 15
This provision with respect to injunctive relief shall not diminish, however,
the right of either party to any other relief or to claim and recover damages.
11. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each one of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
12. FURTHER ASSURANCES. Each party hereto shall, from time to time at
and after the date hereof, execute and deliver such instruments, documents and
assurances and take such further actions as the other party may reasonably
request to carry out the purpose and intent of this Agreement.
13. JURISDICTION.
(a) Each party hereto irrevocably submits to the non-exclusive
jurisdiction of any court of the State of California or the United States of
America sitting in the City of Los Angeles over any suit, action or proceeding
arising out of or relating to this Agreement. To the fullest extent it may
effectively do so under applicable law, each party irrevocably waives and agrees
not to assert, by way of motion, as a defense or otherwise, any claim that it is
not subject to the jurisdiction of any such court, any objection that it may now
or hereafter have to the establishment of the venue of any such suit, action or
proceeding brought in any such court and any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
(b) Each party hereto agrees, to the fullest extent it may
effectively do so under applicable law, that a judgment in any suit, action or
proceeding of the nature referred to hereinabove brought in any such court shall
be conclusive and binding upon such person and its successors and assigns and
may be enforced in the courts of the United States of America or the State of
California (or any other courts to the jurisdiction of which such person is or
may be subject) by a suit upon such judgment.
(c) Each party hereto consents to process being served in any
suit, action or proceeding of the nature referred to hereinabove by mailing a
copy thereof by registered or certified mail, postage prepaid, return receipt
requested, to the address of the other set forth in Section 16. Each party
agrees that such service (i) shall be deemed in every respect effective service
of process upon such person in any such suit, action or proceeding and (ii)
shall, to the fullest extent permitted by law, be taken and held to be valid
personal service upon and personal delivery to such Person.
14. SEVERABLE PROVISIONS. If any term, provision, covenant or
restriction herein, or the application thereof to any circumstance, shall, to
any extent, be held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions herein and the application thereof to any other circumstances,
shall
4
<PAGE> 16
remain in full force and effect, shall not in any way be affected, impaired or
invalidated, and shall be enforced to the fullest extent permitted by law.
15. SEC REPORTS. Keystone agrees to make all filings required under the
Securities Exchange Act of 1934, as amended, so long as any of the Shareholders
own shares of Keystone Common Stock acquired in the Merger.
IN WITNESS WHEREOF, the undersigned parties have executed and delivered
this Agreement as of the day and year first above written.
KEYSTONE: KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
By /s/ Charles J. Hogarty
------------------------------------------------
Charles J. Hogarty, Chief Executive Officer
700 East Bonita Avenue
Pomona, California 91767
SHAREHOLDERS:
/s/ Leon Schigiel
----------------------------------------------------
LEON SCHIGIEL
3328 NE 169 Street
North Miami Beach, Florida 33160
Telecopier No. (305) 947-0130
/s/ Joseph Bick
----------------------------------------------------
JOSEPH BICK
3480 Windmill Ranch Road
Weston, Florida 33331
/s/ Cesar Jimenez
----------------------------------------------------
CESAR JIMENEZ
12945 Cherry Road
North Miami, Florida 33188
5
<PAGE> 17
EXHIBIT C
AFFILIATE AGREEMENT
THIS AFFILIATE AGREEMENT is made and effective as of November 14, 1997,
by and among KEYSTONE AUTOMOTIVE INDUSTRIES, INC., a California corporation
("Keystone"), INTEURO PARTS DISTRIBUTORS, INC. a Florida corporation
("Inteuro"), and LEON SCHIGIEL and JOSEPH BICK (collectively, the "Shareholders"
and individually, a "Shareholder").
A. Inteuro and the Shareholders desire that Keystone, Inteuro Merger,
Inc., a wholly owned subsidiary of Keystone (the "Subsidiary"), Inteuro and the
shareholders of Inteuro enter into that certain Agreement and Plan of Merger (as
the same may be amended or supplemented, the "Merger Agreement"), pursuant to
which, among other things, (i) the Subsidiary will be merged with and into
Inteuro (the "Merger"), (ii) all shares of the capital stock of Inteuro issued
and outstanding immediately prior to the Merger will be converted into the right
to receive an aggregate of 1,840,000 shares of the Common Stock of Keystone
(subject to adjustment) and (iii) Leon Schigiel, a director, officer and a
Shareholder, will become a director of Keystone.
B. Inteuro and the Shareholders are entering into this Agreement (i) as
a material inducement to Keystone to enter into, and to cause the Subsidiary to
enter into, the Merger Agreement and (ii) to ensure pooling-of-interests
accounting treatment for the Merger.
C. Leon Schigiel and Joseph Bick are the President and the Vice
President, Secretary and Treasurer, respectively, of Inteuro and are the sole
directors and the holders of an aggregate of 60 shares of the Common Stock of
Inteuro (all of the shares of the Common Stock of Inteuro authorized, issued and
outstanding on the date hereof).
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein and in the Merger Agreement, and intending to be legally bound hereby,
the parties agree as follows:
1. REPRESENTATIONS AND WARRANTIES. Each Shareholder hereby represents
and warrants to Keystone as follows:
A. Each Shareholder is, and since at least January 1, 1995 has
been, the holder of record, and has, since at least January 1, 1995 had, the
sole power to vote, or to direct the voting of, and to dispose of, or to direct
the disposition of, 50% of the outstanding shares of Common Stock of Inteuro.
Except for such shares, the Shareholder has no right, title or interest of any
kind whatsoever in any shares of the capital stock or other securities of
Inteuro and, since January 1, 1995, the Shareholder has not engaged in the sale,
exchange, transfer, redemption, reduction in any way of his risk of ownership,
short sale or other disposition,
<PAGE> 18
directly or indirectly, of any interest in any shares of the capital stock or
other securities of Inteuro.
B. All shares of the capital stock of Inteuro held by each of
the Shareholders are free and clear of all (i) liens, claims, charges,
encumbrances, security interests, equities, restrictions on transfer or any
other defects in title of any kind or description whatsoever and (ii) preemptive
rights, options, proxies, voting trusts or other agreements, understandings or
arrangements regarding the voting or the disposition of such shares, except for
any such encumbrances or proxies arising hereunder, and except for the
shareholder agreement among Inteuro and the Shareholders, which agreement will
terminate at the effective time of the Merger.
C. Each of the Shareholders has the legal right, power,
capacity and authority to execute, deliver and perform this Agreement without
obtaining the approval or consent of any person, and this Agreement is the
legal, valid and binding obligation of each Shareholder and is enforceable
against each Shareholder in accordance with its terms.
D. Neither the execution and delivery of this Agreement nor
the consummation by either of the Shareholders of the transactions contemplated
hereby (i) will result in a violation of, constitute a default under, conflict
with or require any consent, approval or notice under, any contract, trust,
commitment, agreement, understanding, arrangement or restriction of any kind, or
any judgment, order, decree, statute, law, rule or regulation, to which either
of the Shareholders is a party or by which either of the Shareholders is bound
or (ii) will result in the creation or imposition of any lien, claim, charge,
security interest, encumbrance or restriction on any shares of the capital stock
of Inteuro. If either of the Shareholders is married and any shares of the
capital stock of Inteuro held by a Shareholder constitute community property,
this Agreement has been duly executed and delivered by, and constitutes the
legal, valid and binding agreement of, the Shareholder's spouse, enforceable
against such person in accordance with its terms.
E. No broker, investment banker, financial adviser or other
person is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission in connection with the transactions contemplated
hereby or by the Merger Agreement based upon arrangements made by or on behalf
of either of the Shareholders.
F. Each of the Shareholders understands and acknowledges that
Keystone is entering into, and is causing the Subsidiary to enter into, the
Merger Agreement in reliance upon the Shareholder's execution and delivery of
this Agreement.
2. VOTING OF INTEURO SHARES. Each Shareholder hereby covenants and
agrees as follows:
A. At any meeting of shareholders of Inteuro, or at any
adjournment thereof, or in any other circumstances in which the vote, consent or
other approval of shareholders of
2
<PAGE> 19
Inteuro is sought, the Shareholder shall vote (or cause to be voted) all shares
of the capital stock of Inteuro as to which he has the sole or shared voting
power as of the record date established to determine the persons who have the
right to vote at such meeting or to grant such vote, consent or the approval
against (i) any merger agreement or merger (other than the Merger Agreement and
the Merger), consolidation, combination, sale or acquisition of any debt or
equity security or of any assets, reorganization, recapitalization, dissolution,
liquidation or winding up of or by Inteuro or (ii) any amendment of Inteuro's
Articles of Incorporation or Bylaws or (iii) any other proposal or transaction
involving Inteuro, which amendment or other proposal or transaction would in any
manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or
any of the other transactions contemplated by the Merger Agreement (each of the
foregoing matters set forth in clause (i), (ii) or (iii) above, a "Competing
Transaction").
B. The Shareholder shall retain at all times the right to vote
any shares of the capital stock of Inteuro, in his sole discretion, on all
matters (other than those set forth in this Section 2) which are at any time or
from time to time presented to the shareholders of Inteuro generally.
C. The Shareholder shall not, without the prior written
consent of Keystone in each instance, take any action that would alter or affect
in any way the right to vote any shares of the capital stock of Inteuro as to
which the Shareholder has the sole or shared voting power, including, but not
limited to, (i) transferring (whether by sale, gift, pledge or otherwise), or
consenting to the transfer of, any interest in any such shares, (ii) entering
into any contract, option or other agreement or understanding with respect to
the voting of such shares, (iii) granting any proxy, power of attorney or other
authorization in or with respect to the voting of such shares or (iv) depositing
such shares into a voting trust or entering into a voting agreement or
arrangement with respect thereto.
3. ACCOUNTING TREATMENT. Notwithstanding any other provision of this
Agreement to the contrary, a Shareholder shall not take any action which, either
alone or together with any action by any other person, could preclude Keystone
from accounting for the business combination to be effected by the Merger as a
pooling of interests, including, but not limited to, (i) selling, assigning,
transferring or otherwise disposing of any shares of the capital stock or other
securities of Inteuro prior to the Merger, (ii) selling, assigning, transferring
or otherwise disposing of any interest in any shares of the Common Stock of
Keystone to be received by such Shareholder in the Merger or (iii) taking any
other action which, either alone or together with any other action by any other
person, could in any way reduce such Shareholder's risk of ownership or
investment in any shares of the capital stock of Inteuro prior to the Merger or
of Keystone received by such Shareholder in the Merger; PROVIDED, however, that
the restrictions on the shares of Keystone received in the Merger shall
terminate upon Keystone's publication of financial results covering a period of
at least thirty (30) days of combined operations of Keystone and Inteuro
following the Effective Time.
4. COMPETING TRANSACTIONS. Each Shareholder shall refrain, and shall
cause Inteuro and any investment banker, attorney or other adviser or
representative of the Shareholder or
3
<PAGE> 20
Inteuro to refrain, directly or indirectly, from (i) soliciting, initiating or
encouraging the submission of any Competing Transaction or (ii) participating in
any discussions or negotiations regarding, or furnishing to any person any
information with respect to, or taking any other action to facilitate any
inquiries or the making of any Competing Transaction.
5. EXCHANGE OF STOCK. Upon the satisfaction or waiver of the conditions
to the obligation of Inteuro to consummate the Merger, which conditions are set
forth in Article VIII of the Merger Agreement, each Shareholder shall exchange
all shares of the capital stock of Inteuro held by him for the consideration
provided in the Merger Agreement.
6. RESTRICTIONS ON DISPOSITION OF KEYSTONE SHARES.
A. Each Shareholder acknowledges that Keystone is issuing its
shares of Common Stock in connection with the Merger (the "Shares") without
registration of said securities under the Securities Act in reliance upon the
exemption from registration provided in Section 4(2) of the Securities Act. Each
Shareholder represents and warrants that he is a sophisticated investor able to
assess the risks of an investment in Keystone and that he is acquiring the
Shares for investment purposes only and that he will not sell, transfer, pledge,
hypothecate or otherwise dispose of any interest in the Shares otherwise than in
compliance with Section 6(b) below.
B. A Shareholder shall not sell, transfer, pledge, hypothecate
or otherwise dispose of any interest in any shares of the capital stock or other
securities of Keystone, including, but not limited to, any shares of Common
Stock received in the Merger or any securities which may be issued as a dividend
or otherwise distributed thereon or with respect thereto or issued or delivered
in exchange or substitution therefor, unless (i) such sale, transfer or
disposition is effected pursuant to an effective registration statement under,
and in compliance with, the Securities Act or (ii) such Shareholder shall
deliver to Keystone an opinion of legal counsel, which opinion shall be in form
or substance reasonably satisfactory to Keystone, to the effect that such sale,
transfer or disposition is exempt from the registration requirements of the
Securities Act; PROVIDED, however, that the Shareholder may make bona fide gifts
or distributions without consideration of such securities so long as the
recipients thereof agree not to sell, transfer or otherwise dispose of such
securities except as provided herein.
C. Each Shareholder has consulted such legal counsel and
financial advisors as he has deemed appropriate, in his sole discretion, with
respect to his obligations under this Section 6.
7. LEGEND.
A. Each Shareholder shall stamp, print or type, or shall
cause, or consent, to be stamped, printed or typed, the following legend on the
face of any certificate evidencing shares of the Common Stock or other
securities of Inteuro held by such Shareholder or of Keystone received in the
Merger:
4
<PAGE> 21
"THE VOTING, SALE, ASSIGNMENT, TRANSFER, PLEDGE,
HYPOTHECATION OR OTHER ENCUMBRANCE OR DISPOSITION OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO AN
AFFILIATE AGREEMENT DATED AS OF NOVEMBER 14, 1997, A COPY OF
WHICH IS ON FILE AT THE OFFICES OF THE COMPANY."
8. STOP TRANSFER ORDERS.
A. Inteuro shall not register the transfer of any certificate
representing any shares of the capital stock or other securities of Inteuro now
held or hereafter acquired by any Shareholder, unless such transfer is made
pursuant to the Merger Agreement.
B. Keystone shall not register the transfer of any certificate
representing any shares of the Common Stock of Keystone received by a
Shareholder in the Merger, except as expressly permitted by this Agreement.
9. TERMINATION. All rights and obligations of the parties under this
Agreement shall terminate on the date upon which the Merger Agreement is
terminated in accordance with Section 9.1 thereof.
10. SUCCESSORS AND ASSIGNS. Neither this Agreement nor any of the
rights or duties hereunder shall be assigned, in whole or in part, by operation
of law or otherwise, by any of the parties without the prior written consent of
each other party. Any assignment in violation of the foregoing shall be void.
This Agreement and the obligations of a Shareholder hereunder shall attach to
all shares of the capital stock of Inteuro now held or hereafter acquired by
such Shareholder and shall inure to the benefit of and shall be binding upon any
person to which legal or beneficial ownership of such shares shall pass, whether
by operation of law or otherwise, including, but not limited to, the
Shareholder's permitted heirs, representatives, successors or assigns.
11. INDEMNIFICATION.
A. Each party hereto shall indemnify each other party hereto
and hold it harmless against and in respect of any and all payments, damages,
demands, claims, losses, expenses, costs, obligations and liabilities
(including, but not limited to, reasonable attorneys' fees and costs) which
arise or result from or are related to any breach by such indemnifying party or
failure by such indemnifying party to perform any of its representations,
warranties, commitments, obligations, covenants or conditions hereunder.
Consummation of the transactions contemplated hereby shall not be deemed or
construed to be a waiver of any right or remedy of the indemnified party nor
shall this section or any other provision of this Agreement be deemed or
construed to be a waiver of any ground of defense by the indemnified party.
5
<PAGE> 22
B. The party indemnified hereunder (the "Indemnitee") shall
promptly notify the indemnifying party (the "Indemnitor") of the existence of
any claim, demand or other matter involving liabilities to third parties to
which the Indemnitor's indemnification obligations would apply and shall give
the Indemnitor a reasonable opportunity to defend the same at its own expense
and with counsel of its own selection (who shall be approved by the Indemnitee,
which approval shall not be unreasonably withheld); PROVIDED, however, that the
Indemnitee at all times also shall have the right to fully participate in the
defense at its own expense. If the Indemnitor within a reasonable time after
such notice fails to defend such claim, or fails to pursue such defense
vigorously once commenced, the Indemnitee shall have the right, but not the
obligation, to undertake the defense of, and to compromise or settle (exercising
reasonable business judgment), the claim or other matter on behalf, for the
account and at the risk and expense of the Indemnitor. Except as provided in the
preceding sentence, the Indemnitee shall not compromise or settle the claim or
other matter without the prior written consent of the Indemnitor in each
instance. If the claim is one that cannot by its nature be defended solely by
the Indemnitor, the Indemnitee shall make available all information and
assistance that the Indemnitor reasonably may request; PROVIDED, however, that
any associated expenses shall be paid by the Indemnitor.
12. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties and agreements made by the parties hereto in this
Agreement (including, but not limited to, statements contained in any schedule
or certificate or other instrument delivered by or on behalf of any party hereto
or in connection with the transactions contemplated hereby) shall survive the
date hereof and any investigations, inspections, examinations or audits made by
or on behalf of any party.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof, and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, relating to the subject matter of this Agreement. No
supplement, modification, waiver or termination of this Agreement shall be valid
unless executed by the party to be bound thereby. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provisions hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
14. NOTICES. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been given (i) if
personally delivered, when so delivered, (ii) if mailed, one (1) week after
having been placed in the mail, registered or certified, postage prepaid,
addressed to the party to whom it is directed at the address set forth on the
signature page hereof or (iii) if given by telex or telecopier, when such notice
or other communication is transmitted to the telex or telecopier number
specified on the signature page hereof and the appropriate answer back or
telephonic confirmation is received. Any party may change the address to which
such notices are to be addressed by giving the other parties notice in the
manner herein set forth.
6
<PAGE> 23
15. GOVERNING LAW. The validity, construction and interpretation of
this Agreement shall be governed in all respects by the laws of the State of
California applicable to contracts made and to be performed wholly within that
State.
16. HEADINGS. Section and subsection headings are not to be considered
part of this Agreement and are included solely for convenience and reference and
in no way define, limit or describe the scope of this Agreement or the intent of
any provisions hereof.
17. ATTORNEYS' FEES. In the event any party takes legal action to
enforce any of the terms of this Agreement, the unsuccessful party to such
action shall pay the successful party's expenses (including, but not limited to,
attorneys' fees and costs) incurred in such action.
18. THIRD PARTIES. Nothing in this Agreement, expressed or implied, is
intended to confer upon any person other than the parties hereto and their
successors and assigns any rights or remedies under or by reason of this
Agreement.
19. INJUNCTIVE RELIEF. Inteuro and the Shareholders each hereby
acknowledge and agree that the obligations of the Shareholders hereunder are
unique and Keystone would not have an adequate remedy at law for money damages
in the event of the breach or threatened breach of any provision of this
Agreement. Accordingly, Keystone shall be entitled to temporary and injunctive
relief, including temporary restraining orders, preliminary injunctions and
permanent injunctions, to enforce such provisions without the necessity of
proving actual damages or being required to post any bond or undertaking in
connection with any such action. This provision with respect to injunctive
relief shall not diminish, however, the right of Keystone to any other relief or
to claim and recover damages.
20. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each one of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
21. FURTHER ASSURANCES. Each party hereto shall, from time to time at
and after the date hereof, execute and deliver such instruments, documents and
assurances and take such further actions as the other party may reasonably
request to carry out the purpose and intent of this Agreement.
22. JURISDICTION.
A. Each party hereto irrevocably submits to the non-exclusive
jurisdiction of any court of the State of California or the United States of
America sitting in the City of Los Angeles over any suit, action or proceeding
arising out of or relating to this Agreement. To the fullest extent it may
effectively do so under applicable law, each party irrevocably waives and agrees
not to assert, by way of motion, as a defense or otherwise, any claim that it is
not subject to the jurisdiction of any such court, any objection that it may now
or hereafter have to the establishment of the venue of any such suit, action or
proceeding brought in any such court
7
<PAGE> 24
and any claim that any such suit, action or proceeding brought in any such court
has been brought in an inconvenient forum.
B. Each party hereto agrees, to the fullest extent it may
effectively do so under applicable law, that a judgment in any suit, action or
proceeding of the nature referred to hereinabove brought in any such court shall
be conclusive and binding upon such person and its successors and assigns and
may be enforced in the courts of the United States of America or the State of
California (or any other courts to the jurisdiction of which such person is or
may be subject) by a suit upon such judgment.
C. Each party hereto consents to process being served in any
suit, action or proceeding of the nature referred to hereinabove by mailing a
copy thereof by registered or certified mail, postage prepaid, return receipt
requested, to the address of the other set forth in Section 16. Each party
agrees that such service (i) shall be deemed in every respect effective service
of process upon such person in any such suit, action or proceeding and (ii)
shall, to the fullest extent permitted by law, be taken and held to be valid
personal service upon and personal delivery to such person.
23. DEFINED TERMS. Capitalized terms used and not otherwise defined in
this Agreement shall have the respective meanings assigned to them in the Merger
Agreement.
24. SEVERABLE PROVISIONS. If any term, provision, covenant or
restriction herein, or the application thereof to any circumstance, shall, to
any extent, be held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions herein and the application thereof to any other circumstances,
shall remain in full force and effect, shall not in any way be affected,
impaired or invalidated, and shall be enforced to the fullest extent permitted
by law.
IN WITNESS WHEREOF, the undersigned parties have executed and delivered
this Agreement as of the day and year first above written.
KEYSTONE: KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
By /s/ Charles J. Hogarty
--------------------------------------------------
Charles J. Hogarty, Chief Executive Officer
700 East Bonita Avenue
Pomona, California 91767
Telecopier No.: (909) 624-9136
(Signatures Continued on Following Page)
8
<PAGE> 25
(Signatures Continued from Preceding Page)
INTEURO: INTEURO PARTS DISTRIBUTORS, INC.
By: /s/ Leon Schigiel
----------------------------------------
Leon Schigiel, President
9970 N.W. 89th Court
Medley, Florida 33178
Telecopier No.: (305) 888-0685
SHAREHOLDERS:
/s/ Leon Schigiel
-------------------------------------
LEON SCHIGIEL
3328 N.E. 169th Street
North Miami Beach, Florida 33160
Telecopier No.: (305) 947-0130
Number of shares: 30
/s/ Joseph Bick
-------------------------------------
JOSEPH BICK
3480 Windmill Ranch Road
Weston, Florida 33331
Number of shares: 30
9
<PAGE> 26
EXHIBIT D
AFFILIATE AGREEMENT
THIS AFFILIATE AGREEMENT is made and effective as of November 14, 1997,
by and among KEYSTONE AUTOMOTIVE INDUSTRIES, INC., a California corporation
("Keystone"), CAR BODY CONCEPTS, INC. a Florida corporation ("CBC"), and LEON
SCHIGIEL, JOSEPH BICK and CESAR JIMENEZ (collectively, the "Shareholders" and
individually, a "Shareholder").
A. CBC and the Shareholders desire that Keystone, CBC Merger, Inc., a
wholly owned subsidiary of Keystone (the "Subsidiary"), CBC and the shareholders
of CBC enter into that certain Agreement and Plan of Merger (as the same may be
amended or supplemented, the "Merger Agreement"), pursuant to which, among other
things, (i) the Subsidiary will be merged with and into CBC (the "Merger"), and
(ii) all shares of the capital stock of CBC issued and outstanding immediately
prior to the Merger will be converted into the right to receive an aggregate of
160,000 shares of the Common Stock of Keystone (subject to adjustment).
B. CBC and the Shareholders are entering into this Agreement (i) as a
material inducement to Keystone to enter into, and to cause the Subsidiary to
enter into, the Merger Agreement and (ii) to ensure pooling-of-interests
accounting treatment for the Merger.
C. Leon Schigiel, Joseph Bick and Cesar Jimenez are officers and are
the sole directors and the holders of an aggregate of 1,000 shares of the Common
Stock of CBC (all of the shares of the Common Stock of CBC authorized, issued
and outstanding on the date hereof).
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein and in the Merger Agreement, and intending to be legally bound hereby,
the parties agree as follows:
1. REPRESENTATIONS AND WARRANTIES. Each Shareholder hereby represents
and warrants to Keystone as follows:
A. Except for the acquisition by Leon Schigiel and Joseph Bick
of 45 shares of CBC Common Stock each from a former shareholder on June 30, 1997
(the Acquisition"), each Shareholder is, and since at least July 1, 1995 has
been, the holder of record, and has, since at least July 1, 1995 had, the sole
power to vote, or to direct the voting of, and to dispose of, or to direct the
disposition of, the number of the outstanding shares of Common Stock of CBC set
forth below their respective names in the signature page hereof. Except for such
shares, the Shareholder has no right, title or interest of any kind whatsoever
in any shares of the capital stock or other securities of CBC and, since July 1,
1995, the Shareholder has not engaged in the sale, exchange, transfer,
redemption, reduction in any way of his risk of ownership, short
<PAGE> 27
sale or other disposition, directly or indirectly, of any interest in any shares
of the capital stock or other securities of CBC, other than the Acquisition.
B. All shares of the capital stock of CBC held by each of the
Shareholders are free and clear of all (i) liens, claims, charges, encumbrances,
security interests, equities, restrictions on transfer or any other defects in
title of any kind or description whatsoever and (ii) preemptive rights, options,
proxies, voting trusts or other agreements, understandings or arrangements
regarding the voting or the disposition of such shares, except for any such
encumbrances or proxies arising hereunder, and except for the shareholder
agreement among CBC and the Shareholders, which agreement will be terminated at
the effective time of the Merger.
C. Each of the Shareholders has the legal right, power,
capacity and authority to execute, deliver and perform this Agreement without
obtaining the approval or consent of any person, and this Agreement is the
legal, valid and binding obligation of each Shareholder and is enforceable
against each Shareholder in accordance with its terms.
D. Neither the execution and delivery of this Agreement nor
the consummation by either of the Shareholders of the transactions contemplated
hereby (i) will result in a violation of, constitute a default under, conflict
with or require any consent, approval or notice under, any contract, trust,
commitment, agreement, understanding, arrangement or restriction of any kind, or
any judgment, order, decree, statute, law, rule or regulation, to which either
of the Shareholders is a party or by which either of the Shareholders is bound
or (ii) will result in the creation or imposition of any lien, claim, charge,
security interest, encumbrance or restriction on any shares of the capital stock
of CBC. If either of the Shareholders is married and any shares of the capital
stock of CBC held by a Shareholder constitute community property, this Agreement
has been duly executed and delivered by, and constitutes the legal, valid and
binding agreement of, the Shareholder's spouse, enforceable against such person
in accordance with its terms.
E. No broker, investment banker, financial adviser or other
person is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission in connection with the transactions contemplated
hereby or by the Merger Agreement based upon arrangements made by or on behalf
of either of the Shareholders.
F. Each of the Shareholders understands and acknowledges that
Keystone is entering into, and is causing the Subsidiary to enter into, the
Merger Agreement in reliance upon the Shareholder's execution and delivery of
this Agreement.
2. VOTING OF CBC SHARES. Each Shareholder hereby covenants and agrees
as follows:
A. At any meeting of shareholders of CBC, or at any
adjournment thereof, or in any other circumstances in which the vote, consent or
other approval of shareholders of
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CBC is sought, the Shareholder shall vote (or cause to be voted) all shares of
the capital stock of CBC as to which he has the sole or shared voting power as
of the record date established to determine the persons who have the right to
vote at such meeting or to grant such vote, consent or the approval against (i)
any merger agreement or merger (other than the Merger Agreement and the Merger),
consolidation, combination, sale or acquisition of any debt or equity security
or of any assets, reorganization, recapitalization, dissolution, liquidation or
winding up of or by CBC or (ii) any amendment of CBC's Articles of Incorporation
or Bylaws or (iii) any other proposal or transaction involving CBC, which
amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify the Merger, the Merger Agreement or any of the
other transactions contemplated by the Merger Agreement (each of the foregoing
matters set forth in clause (i), (ii) or (iii) above, a "Competing
Transaction").
B. The Shareholder shall retain at all times the right to vote
any shares of the capital stock of CBC, in his sole discretion, on all matters
(other than those set forth in this Section 2) which are at any time or from
time to time presented to the shareholders of CBC generally.
C. The Shareholder shall not, without the prior written
consent of Keystone in each instance, take any action that would alter or affect
in any way the right to vote any shares of the capital stock of CBC as to which
the Shareholder has the sole or shared voting power, including, but not limited
to, (i) transferring (whether by sale, gift, pledge or otherwise), or consenting
to the transfer of, any interest in any such shares, (ii) entering into any
contract, option or other agreement or understanding with respect to the voting
of such shares, (iii) granting any proxy, power of attorney or other
authorization in or with respect to the voting of such shares or (iv) depositing
such shares into a voting trust or entering into a voting agreement or
arrangement with respect thereto.
3. ACCOUNTING TREATMENT. Notwithstanding any other provision of this
Agreement to the contrary, a Shareholder shall not take any action which, either
alone or together with any action by any other person, could preclude Keystone
from accounting for the business combination to be effected by the Merger as a
pooling of interests, including, but not limited to, (i) selling, assigning,
transferring or otherwise disposing of any shares of the capital stock or other
securities of CBC prior to the Merger, (ii) selling, assigning, transferring or
otherwise disposing of any interest in any shares of the Common Stock of
Keystone to be received by such Shareholder in the Merger or (iii) taking any
other action which, either alone or together with any other action by any other
person, could in any way reduce such Shareholder's risk of ownership or
investment in any shares of the capital stock of CBC prior to the Merger or of
Keystone received by such Shareholder in the Merger; PROVIDED, however, that the
restrictions on the shares of Keystone received in the Merger shall terminate
upon Keystone's publication of financial results covering a period of at least
thirty (30) days of combined operations of Keystone and CBC following the
Effective Time.
4. COMPETING TRANSACTIONS. Each Shareholder shall refrain, and shall
cause CBC and any investment banker, attorney or other adviser or representative
of the Shareholder or CBC to refrain, directly or indirectly, from (i)
soliciting, initiating or encouraging the
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submission of any Competing Transaction or (ii) participating in any discussions
or negotiations regarding, or furnishing to any person any information with
respect to, or taking any other action to facilitate any inquiries or the making
of any Competing Transaction.
5. EXCHANGE OF STOCK. Upon the satisfaction or waiver of the conditions
to the obligation of CBC to consummate the Merger, which conditions are set
forth in Article VIII of the Merger Agreement, each Shareholder shall exchange
all shares of the capital stock of CBC held by him for the consideration
provided in the Merger Agreement.
6. RESTRICTIONS ON DISPOSITION OF KEYSTONE SHARES.
A. Each Shareholder acknowledges that Keystone is issuing its
shares of Common Stock in connection with the Merger (the "Shares") without
registration of said securities under the Securities Act in reliance upon the
exemption from registration provided in Section 4(2) of the Securities Act. Each
Shareholder represents and warrants that he is a sophisticated investor able to
assess the risks of any investment in Keystone and that he is acquiring the
Shares for investment purposes only and that he will not sell, transfer, pledge,
hypothecate or otherwise dispose of any interest in the Shares otherwise than in
compliance with Section 6(b) below.
B. A Shareholder shall not sell, transfer, pledge, hypothecate
or otherwise dispose of any interest in any shares of the capital stock or other
securities of Keystone, including, but not limited to, any shares of Common
Stock received in the Merger or any securities which may be issued as a dividend
or otherwise distributed thereon or with respect thereto or issued or delivered
in exchange or substitution therefor, unless (i) such sale, transfer or
disposition is effected pursuant to an effective registration statement under,
and in compliance with, the Securities Act or (ii) such Shareholder shall
deliver to Keystone an opinion of legal counsel, which opinion shall be in form
or substance reasonably satisfactory to Keystone, to the effect that such sale,
transfer or disposition is exempt from the registration requirements of the
Securities Act; PROVIDED, however, that the Shareholder may make bona fide gifts
or distributions without consideration of such securities so long as the
recipients thereof agree not to sell, transfer or otherwise dispose of such
securities except as provided herein.
C. Each Shareholder has consulted such legal counsel and
financial advisors as he has deemed appropriate, in his sole discretion, with
respect to his obligations under this Section 6.
7. LEGEND.
A. Each Shareholder shall stamp, print or type, or shall
cause, or consent, to be stamped, printed or typed, the following legend on the
face of any certificate evidencing shares of the Common Stock or other
securities of CBC held by such Shareholder or of Keystone received in the
Merger:
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<PAGE> 30
"THE VOTING, SALE, ASSIGNMENT, TRANSFER, PLEDGE,
HYPOTHECATION OR OTHER ENCUMBRANCE OR DISPOSITION OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO AN
AFFILIATE AGREEMENT DATED AS OF NOVEMBER 14, 1997, A COPY OF
WHICH IS ON FILE AT THE OFFICES OF THE COMPANY."
8. STOP TRANSFER ORDERS.
A. CBC shall not register the transfer of any certificate
representing any shares of the capital stock or other securities of CBC now held
or hereafter acquired by any Shareholder, unless such transfer is made pursuant
to the Merger Agreement.
B. Keystone shall not register the transfer of any
certificate representing any shares of the Common Stock of Keystone
received by a Shareholder in the Merger, except as expressly permitted by this
Agreement.
9. TERMINATION. All rights and obligations of the parties under this
Agreement shall terminate on the date upon which the Merger Agreement is
terminated in accordance with Section 9.1 thereof.
10. SUCCESSORS AND ASSIGNS. Neither this Agreement nor any of the
rights or duties hereunder shall be assigned, in whole or in part, by operation
of law or otherwise, by any of the parties without the prior written consent of
each other party. Any assignment in violation of the foregoing shall be void.
This Agreement and the obligations of a Shareholder hereunder shall attach to
all shares of the capital stock of CBC now held or hereafter acquired by such
Shareholder and shall inure to the benefit of and shall be binding upon any
person to which legal or beneficial ownership of such shares shall pass, whether
by operation of law or otherwise, including, but not limited to, the
Shareholder's permitted heirs, representatives, successors or assigns.
11. INDEMNIFICATION.
A. Each party hereto shall indemnify each other party hereto
and hold it harmless against and in respect of any and all payments, damages,
demands, claims, losses, expenses, costs, obligations and liabilities
(including, but not limited to, reasonable attorneys' fees and costs) which
arise or result from or are related to any breach by such indemnifying party or
failure by such indemnifying party to perform any of its representations,
warranties, commitments, obligations, covenants or conditions hereunder.
Consummation of the transactions contemplated hereby shall not be deemed or
construed to be a waiver of any right or remedy of the indemnified party nor
shall this section or any other provision of this
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<PAGE> 31
Agreement be deemed or construed to be a waiver of any ground of defense by the
indemnified party.
B. The party indemnified hereunder (the "Indemnitee") shall
promptly notify the indemnifying party (the "Indemnitor") of the existence of
any claim, demand or other matter involving liabilities to third parties to
which the Indemnitor's indemnification obligations would apply and shall give
the Indemnitor a reasonable opportunity to defend the same at its own expense
and with counsel of its own selection (who shall be approved by the Indemnitee,
which approval shall not be unreasonably withheld); PROVIDED, however, that the
Indemnitee at all times also shall have the right to fully participate in the
defense at its own expense. If the Indemnitor within a reasonable time after
such notice fails to defend such claim, or fails to pursue such defense
vigorously once commenced, the Indemnitee shall have the right, but not the
obligation, to undertake the defense of, and to compromise or settle (exercising
reasonable business judgment), the claim or other matter on behalf, for the
account and at the risk and expense of the Indemnitor. Except as provided in the
preceding sentence, the Indemnitee shall not compromise or settle the claim or
other matter without the prior written consent of the Indemnitor in each
instance. If the claim is one that cannot by its nature be defended solely by
the Indemnitor, the Indemnitee shall make available all information and
assistance that the Indemnitor reasonably may request; PROVIDED, however, that
any associated expenses shall be paid by the Indemnitor.
12. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties and agreements made by the parties hereto in this
Agreement (including, but not limited to, statements contained in any schedule
or certificate or other instrument delivered by or on behalf of any party hereto
or in connection with the transactions contemplated hereby) shall survive the
date hereof and any investigations, inspections, examinations or audits made by
or on behalf of any party.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof, and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, relating to the subject matter of this Agreement. No
supplement, modification, waiver or termination of this Agreement shall be valid
unless executed by the party to be bound thereby. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provisions hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
14. NOTICES. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been given (i) if
personally delivered, when so delivered, (ii) if mailed, one (1) week after
having been placed in the mail, registered or certified, postage prepaid,
addressed to the party to whom it is directed at the address set forth on the
signature page hereof or (iii) if given by telex or telecopier, when such notice
or other communication is transmitted to the telex or telecopier number
specified on the signature page hereof and the appropriate answer back or
telephonic confirmation is received. Any party may
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<PAGE> 32
change the address to which such notices are to be addressed by giving the other
parties notice in the manner herein set forth.
15. GOVERNING LAW. The validity, construction and interpretation of
this Agreement shall be governed in all respects by the laws of the State of
California applicable to contracts made and to be performed wholly within that
State.
16. HEADINGS. Section and subsection headings are not to be considered
part of this Agreement and are included solely for convenience and reference and
in no way define, limit or describe the scope of this Agreement or the intent of
any provisions hereof.
17. ATTORNEYS' FEES. In the event any party takes legal action to
enforce any of the terms of this Agreement, the unsuccessful party to such
action shall pay the successful party's expenses (including, but not limited to,
attorneys' fees and costs) incurred in such action.
18. THIRD PARTIES. Nothing in this Agreement, expressed or implied, is
intended to confer upon any person other than the parties hereto and their
successors and assigns any rights or remedies under or by reason of this
Agreement.
19. INJUNCTIVE RELIEF. CBC and the Shareholders each hereby acknowledge
and agree that the obligations of the Shareholders hereunder are unique and
Keystone would not have an adequate remedy at law for money damages in the event
of the breach or threatened breach of any provision of this Agreement.
Accordingly, Keystone shall be entitled to temporary and injunctive relief,
including temporary restraining orders, preliminary injunctions and permanent
injunctions, to enforce such provisions without the necessity of proving actual
damages or being required to post any bond or undertaking in connection with any
such action. This provision with respect to injunctive relief shall not
diminish, however, the right of Keystone to any other relief or to claim and
recover damages.
20. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each one of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
21. FURTHER ASSURANCES. Each party hereto shall, from time to time at
and after the date hereof, execute and deliver such instruments, documents and
assurances and take such further actions as the other party may reasonably
request to carry out the purpose and intent of this Agreement.
22. JURISDICTION.
A. Each party hereto irrevocably submits to the non-exclusive
jurisdiction of any court of the State of California or the United States of
America sitting in the City of Los Angeles over any suit, action or proceeding
arising out of or relating to this Agreement. To the fullest extent it may
effectively do so under applicable law, each party irrevocably waives and agrees
not to assert, by way of motion, as a defense or otherwise, any claim that it is
not
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<PAGE> 33
subject to the jurisdiction of any such court, any objection that it may now or
hereafter have to the establishment of the venue of any such suit, action or
proceeding brought in any such court and any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
B. Each party hereto agrees, to the fullest extent it may
effectively do so under applicable law, that a judgment in any suit, action or
proceeding of the nature referred to hereinabove brought in any such court shall
be conclusive and binding upon such person and its successors and assigns and
may be enforced in the courts of the United States of America or the State of
California (or any other courts to the jurisdiction of which such person is or
may be subject) by a suit upon such judgment.
C. Each party hereto consents to process being served in any
suit, action or proceeding of the nature referred to hereinabove by mailing a
copy thereof by registered or certified mail, postage prepaid, return receipt
requested, to the address of the other set forth in Section 16. Each party
agrees that such service (i) shall be deemed in every respect effective service
of process upon such person in any such suit, action or proceeding and (ii)
shall, to the fullest extent permitted by law, be taken and held to be valid
personal service upon and personal delivery to such person.
23. DEFINED TERMS. Capitalized terms used and not otherwise defined in
this Agreement shall have the respective meanings assigned to them in the Merger
Agreement.
24. SEVERABLE PROVISIONS. If any term, provision, covenant or
restriction herein, or the application thereof to any circumstance, shall, to
any extent, be held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions herein and the application thereof to any other circumstances,
shall remain in full force and effect, shall not in any way be affected,
impaired or invalidated, and shall be enforced to the fullest extent permitted
by law.
IN WITNESS WHEREOF, the undersigned parties have executed and delivered
this Agreement as of the day and year first above written.
KEYSTONE: KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
By /s/ Charles J. Hogarty
------------------------------------------------
Charles J. Hogarty, Chief Executive Officer
700 East Bonita Avenue
Pomona, California 91767
Telecopier No.: (909) 624-9136
(Signatures Continued on Following Page)
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(Signatures Continued from Preceding Page)
CBC: CAR BODY CONCEPTS, INC.
By /s/ Cesar Jimenez
--------------------------------------
Cesar Jimenez, President
9970 N.W. 89th Court
Medley, Florida 33178
Telecopier No.: (305) 888-0685
SHAREHOLDERS:
/s/ Leon Schigiel
-------------------------------------
LEON SCHIGIEL
3328 N.E. 169th Street
North Miami Beach, Florida 33160
Telecopier No.: (305) 947-0130
Number of shares: 450
/s/ Joseph Bick
-------------------------------------
JOSEPH BICK
3480 Windmill Ranch Road
Weston, Florida 33331
Number of shares: 300
/s/ Cesar Jimenez
-------------------------------------
CESAR JIMENEZ
12945 Cherry Road
North Miami, Florida 33188
Number of shares: 250
9
