Exhibit 10.13
EXECUTION COPY
WALLACE CONTRIBUTION
AGREEMENT
This WALLACE CONTRIBUTION AGREEMENT
(this “ Agreement ”) is made as of May 14, 2004,
by and among DONALD W. WALLACE (“ Wallace ”), RV
ACQUISITION INC., a Delaware corporation (“Holdings”)
and BRUCKMANN, ROSSER, SHERRILL & CO. II, L.P., a Delaware
limited partnership (“BRS”). Capitalized terms
used and not otherwise defined herein shall have the meanings
ascribed to them in the Stock Purchase Agreement (as defined
below).
WHEREAS, Holdings, LD Holdings,
Inc., a Delaware corporation (the “ Company ”),
Wallace and the other stockholders of the Company are parties to
that certain Stock Purchase Agreement dated as of April 27, 2004
(the “ Stock Purchase Agreement ”), pursuant to
which Holdings has agreed to purchase substantially all of the
capital stock of the Company (other than the Wallace Contributed
Shares contributed hereunder, the Sellers Contributed Shares and
the Note Shares transferred pursuant to the Wallace Note
Agreement);
WHEREAS, pursuant to the terms and
conditions of this Agreement, Wallace desires to contribute certain
of his shares of the Company in exchange for newly issued shares of
Holdings; and
WHEREAS, the execution and delivery
of this Agreement and the consummation of the transactions
contemplated hereby are conditions precedent to the purchase by
Holdings pursuant to the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of
the premises and the mutual promises herein made, and in
consideration of the representations, warranties, and covenants
herein contained, the parties hereto agree as follows.
1.
Wallace Contribution to
Holdings.
(a)
Contribution
. Wallace agrees to contribute
and deliver to Holdings certificates representing the number of
shares of Class A Common Stock specified on Schedule 1
attached hereto, endorsed in blank or accompanied by duly executed
assignment documents, and in exchange therefore, Holdings agrees to
issue and deliver to Wallace certificates representing the number
of shares of Series A Preferred Stock of Holdings, par value $0.01
per share (the “ Holdings Preferred ”), and the
number of shares of Common Stock of Holdings, par value $0.01 per
share (the “ Holdings Common ”), each as
specified on Schedule 1 attached hereto. The Holdings
Common and Holdings Preferred are sometimes collectively referred
to herein as the “ Holdings Shares ”.
(b)
Waiver . Wallace hereby permanently and
irrevocably waives his right to require Holdings to redeem his
shares of Holdings Preferred under Article IV, Section C(3) of the
Certificate of Incorporation of Holdings (the “Certificate of
Incorporation”) in the event of an Organic Change (as such
term is defined in the Certificate of Incorporation), except in the
event of Wallace’s death, disability or mental incompetency
as provided in Section 351(g)(2)(C)(i)(I) of the Internal Revenue
Code of 1986, as amended. Wallace, BRS and Holdings each
hereby
agrees that Wallace’s right to require
Holdings to redeem his shares of Holdings Preferred shall be deemed
never to have existed, except in the event of Wallace’s
death, disability or mental incompetency as provided in Section
351(g)(2)(C)(i)(I) of the Internal Revenue Code of 1986, as
amended.
2.
Sellers Contribution to
Holdings.
Contemporaneously with the
contribution described in Section 1(a), each of Wallace, Alliance
Holdings, Inc., PPM America Special Investments Fund, L.P., Lion
Connecticut Holdings, Inc. (as successor by merger to Reliastar
Financial Corp.), PPM America Special Investments CBO II, L.P., PB
Capital Corporation, and The Provident Bank (collectively, the
“ Existing Stockholders ”) is agreeing to
contribute and deliver to Holdings certificates representing the
number of shares of Class A Preferred Stock, Class B Preferred
Stock and Class A Common Stock, as applicable, as specified in the
Sellers Contribution Agreement, endorsed in blank or accompanied by
duly executed assignment documents, and in exchange therefore,
Holdings is agreeing to issue and deliver to each Existing
Stockholder certificates representing the number of shares of
Holdings Preferred, as applicable, as specified in the Sellers
Contribution Agreement, pursuant to the terms and conditions of the
Sellers Contribution Agreement.
3.
Purchase by BRS
.
Contemporaneously with the
contribution described in Section 1(a), BRS is agreeing to purchase
from Holdings and Holdings is agreeing to issue to BRS 4,357,142.86
shares of the Holdings Common, and 32,242.85714 shares of Holdings
Preferred pursuant to the terms and conditions of the BRS
Subscription Agreement dated as of the date hereof.
4.
Tax Reporting
.
The parties hereto intend that the
transactions described in Section 1, Section 2 and Section 3
(collectively, the “Exchange”) be characterized in the
aggregate as an exchange under Section 351(a) of the Internal
Revenue Code of 1986, as amended, and agree not to take an
inconsistent position on any return or other document filed with
any tax authority except as may be required by law.
5.
Representations and
Warranties.
(a)
Representations and
Warranties of Holdings . Holdings represents
and warrants to the Company and Wallace that its statements
contained in this Section 5(a) are true and correct as of the date
of this Agreement.
(i)
Organization
of Holdings . Holdings is duly organized,
validly existing, and in good standing under the laws of the State
of Delaware.
(ii)
Authorization
of Transaction and Holdings Shares . Holdings has full
corporate power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. Holdings has
authorized the issuance of the Holdings Shares to Wallace pursuant
to Section 1. This Agreement constitutes a valid and binding
obligation of Holdings,
2
enforceable in
accordance with its terms and conditions. Holdings, to the
best of its knowledge, need not give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any
government or governmental agency in order to consummate the
transactions contemplated by this Agreement, except for certain
filings related to the issuance of the Holdings Shares pursuant to
Section 1 necessary to comply with the Act (as defined below) and
applicable state securities laws.
(iii)
Noncontravention
. Neither
the execution and the delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will violate
any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which Holdings is
subject or any provision of its charter or bylaws.
(iv)
Capital Stock
and Related
