Exhibit 10.2
EXECUTION COPY
CONTRIBUTION
AGREEMENT
This CONTRIBUTION AGREEMENT (this
“ Agreement ”) is made as of May 14, 2004, by
and among DONALD W. 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 (each an “ Existing Stockholder”
and collectively the “ Existing Stockholders ”),
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 and the Existing
Stockholders 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 LD Holdings,
Inc., a Delaware corporation (the “ Company ”),
other than the Company Shares contributed hereunder, the Wallace
Contributed Shares and the Note Shares transferred pursuant to the
Wallace Note Agreement;
WHEREAS, pursuant to the terms and
conditions of this Agreement, the Existing Stockholders desire to
contribute certain of their 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.
Contribution to
Holdings .
(a)
Contributions
. Each Existing Stockholder
agrees 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 (collectively, the
“ Company Shares ”, and individually, a “
Company Share ”), as applicable, as specified for each
such Existing Stockholder 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 each Existing Stockholder, as directed by the
Existing Stockholders pursuant to the terms and conditions of the
Agreement Among Sellers, certificates representing the number of
shares of Series A Preferred Stock, par value $0.01 per share, of
Holdings (the “ Holdings Preferred ”), as
applicable, as specified for each such Existing Stockholder on
Schedule 1 attached hereto. Pursuant to the terms
and conditions of Section 2.2(a) of the Stock Purchase
Agreement, the Existing Stockholders hereby request Holdings to
issue all of such shares of Holdings Preferred in the name of the
Existing Stockholders as set forth on Schedule 1 and
deliver such shares to the
Escrow Agent pursuant to the terms and
conditions of the Escrow Agreement as security for the
indemnification obligations of the Existing Stockholders set forth
in Sections 11.3 and 11.4 of the Stock Purchase
Agreement.
(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 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.
Additional Contribution by
Wallace .
Additionally, contemporaneously with
the contribution described in Section 1(a), Donald W. Wallace
(“ Wallace ”) is agreeing to contribute and
deliver to Holdings certificates representing the number of shares
of Class A Common Stock specified in the Wallace Contribution
Agreement, endorsed in blank or accompanied by duly executed
assignment documents, and in exchange therefore, Holdings is
agreeing to issue and deliver to Wallace certificates representing
the number of shares of Holdings Preferred and the number of shares
of Common Stock of Holdings, par value $0.01 per share (the “
Holdings Common ”), as specified in the Wallace
Contribution Agreement, pursuant to the terms and conditions of the
Wallace Contribution Agreement. The Holdings Common and Holdings
Preferred are sometimes collectively referred to herein as the
“ Holdings Shares ”.
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 each of the Existing Stockholders
that its statements contained in this Section 5(a) are true
and correct as of the date of this Agreement.
2
(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 Preferred to the Existing
Stockholders pursuant to Section 1. This Agreement
constitutes a valid and binding obligation of Holdings, 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 Holdings Preferred 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 Matters
The authorized capital stock of
Holdings consists of 10,000,000 shares of Holdings Common and
100,000 shares of Preferred Stock, par value $0.01 per share, of
which 57,000 shares are designated Holdings Preferred.
Immediately after the Exchange, all of the outstanding shares of
Holdings Preferred shall be validly issued, fully paid and
nonassessable.
(b)
Representations and
Warranties of each Existing Stockholder . Each Existing
Stockholder, severally and not jointly, represents and warrants to
the Company and Holdings, as to such Existing Stockholder, that the
statements contained in this Section 5(b) are true and correct
as of the date of this Agreement.
(i)
Authorization
of Transaction . This Agreement
constitutes the valid and legally binding obligation of each
Existing Stockholder, enforceable in accordance with its terms and
conditions. Each Existing Stockholder, to the best knowledge of
such Existing Stockholder, need not give any notice to, make any
filing with, or obtain any authorization, consent,
