EXHIBIT 10.43
KEYSTONE AUTOMOTIVE INDUSTRIES,
INC.
1996 EMPLOYEE STOCK INCENTIVE
PLAN, AS AMENDED
RESTRICTED STOCK
AGREEMENT
THIS RESTRICTED STOCK AGREEMENT
(this “ Agreement ”) made effective as of June
1, 2004 between Keystone Automotive Industries, Inc., a California
corporation (the “ Company ”), and Richard L.
Keister, an employee of the Company (as such term is defined
below), hereinafter referred to as the “ Restricted
Stockholder .”
WHEREAS, the Company has established
the 1996 Employee Stock Incentive Plan, as amended (the “
Plan ”);
WHEREAS, the Company wishes to carry
out the Plan (the terms of which are hereby incorporated by
reference and made a part of this Agreement);
WHEREAS, the Plan provides for,
among other things, the issuance of shares of the Company’s
common stock the “ Common Stock ”), subject to
certain restrictions thereon (hereinafter referred to as “
Restricted Stock ”);
WHEREAS, the Company’s Board
of Directors (the “Board”) appointed to administer the
Plan, has determined that it is to the advantage and best interest
of the Company and its stockholders to grant an award of 30,000
shares of Restricted Stock to the Restricted Stockholder in
consideration for his joining the Company and as an incentive for
his efforts during future service; and
WHEREAS, the Compensation Committee
(the “Committee”) has also approved the issuance by the
Company of the Award of Restricted Stock and has so advised the
Board.
NOW, THEREFORE, in consideration of
the mutual covenants in this Agreement and other good and valuable
consideration, receipt of which is hereby acknowledged, the Company
and the Restricted Stockholder agree as follows:
ARTICLE I.
DEFINITIONS
Whenever the following terms are
used in this Agreement they shall have the meaning specified below
unless the context clearly indicates to the contrary. The masculine
pronoun shall include the feminine and neuter, and the singular the
plural, where the context so indicates. All capitalized terms used
in this Agreement without definition shall have the meaning given
to such terms in the Plan.
“ Board ” shall
mean the Board of Directors of the Company.
“ Cause ” shall
mean a determination, by at least a majority of the members of the
Board at a meeting of the Board called and held for such purpose
(after reasonable notice is provided to the Executive of such
meeting, the purpose thereof and the Executive is given an
opportunity to be heard before the Board), that Executive (i) has
committed fraud, gross negligence or gross misconduct that results
in material harm to the Company or (ii) has been convicted of, or
entered a plea of guilty or “ nolo contendre ”
to, a felony or (iii) is in material breach of the terms of his
unsigned Employment Memorandum of Understanding (the
“Understanding”), to have been effective as of June 1,
2004, after receiving written notice specifying the breach and
failing to cure the breach within thirty days of the date notice is
given, as if the Understanding had been signed and was binding upon
the parties.
“ Exchange Act ”
shall mean the Securities Exchange Act of 1934, as
amended.
“ Fair Market Value
” of a share of Common Stock as of a given date shall be (i)
the closing price of a share of Common Stock on the principal
exchange on which shares of Common Stock are then trading, if any
(or as reported on any composite index which includes such
principal exchange), on the trading day previous to such date, or
if shares were not traded on the trading day previous to such date,
then on the next preceding date on which a trade occurred, or (ii)
if Common Stock is not traded on an exchange but is quoted on
NASDAQ or a successor quotation system, the mean between the
closing representative bid and asked prices for the Common Stock on
the trading day previous to such date as reported by NASDAQ or such
successor quotation system or if the Common Stock is traded on the
NASDAQ National Market, the closing price on such date; or (iii) if
Common Stock is not publicly traded on an exchange and not quoted
on NASDAQ or a successor quotation system, the Fair Market Value of
a share of Common Stock as established by the Board or the Board
acting in good faith.
“ Performance Failure
” shall mean (i) the continued failure by Executive to follow
the reasonable directions of the Board or (ii) the
Executive’s continual and material variances from objectives
listed in any annual Performance Planning and Evaluation model for
the Executive that may be approved by the Board, after review with
Executive on a semi-annual basis; provided , however
, that a failure to achieve sales, revenues or earnings targets due
to reasons or circumstances external to the Company, which are not
in the reasonable control of Executive, shall not be considered a
Performance Failure.
“ Good Reason ”
shall mean (i) the assignment to the Executive of any duties
inconsistent with the Executive’s position as President and
Chief Executive Officer of the Company, (ii) a diminishment in the
nature or status of the Executive’s responsibilities without
the consent of the Executive, (iii) without the consent of the
Executive, a relocation of the Company’s principal place of
business outside a twenty five (25) mile radius of its current
headquarters in Pomona, California , or (iv) a material
breach by the Company of any of the terms of Executive’s
employment as set forth in the Understanding, whether compensation,
benefit related or otherwise, after the Company is given written
notice by the Executive specifying the breach and failing to cure
such breach within thirty days of the date notice is
given.
“ Notice of Termination
” shall mean a notice of termination sent by the Company or
the Executive notifying the other of the termination of the
employment relationship, which Notice of Termination must be
delivered, except in the event of the death of the Executive, for
such termination to be effective.
“ Restricted Stock
” shall mean Common Stock of the Company issued under this
Agreement and subject to the Restrictions imposed under this
Agreement and under the Plan.
“ Restrictions ”
shall mean the restrictions on sale or other transfer set forth in
Section 3.4 of this Agreement and the exposure to forfeiture as set
forth in Section 3.1 of this Agreement.
“ Rule 16b-3 ”
shall mean Rule 16b-3 under the Exchange Act, as such Rule may be
amended from time to time.
“ Secretary ”
shall mean the Secretary of the Company.
“ Securities Act
” shall mean the Securities Act of 1933, as
amended.
2
ARTICLE II.
ISSUANCE OF RESTRICTED
STOCK
Section 2.1 Issuance of Restricted
Stock
In consideration of the Restricted
Stockholder’s agreement to remain as an employee of the
Company and to serve as its President and Chief Executive Officer
if elected to those positions, and for other good and valuable
consideration, on the date of this Agreement the Company issues to
the Restricted Stockholder 30,000 shares of Restricted Stock upon
the terms and conditions set forth in this Agreement.
Section 2.2 Purchase Price
The purchase price of the Restricted
Stock shall be $0 per share.
Section 2.3 Consideration to
Company
In consideration for the issuance of
Restricted Stock by the Company, the Restricted Stockholder agrees
to render faithful and efficient services to the Company with such
duties and responsibilities as the Company shall from time to time
prescribe consistent with the Understanding. Nothing in this
Agreement or in the Plan shall confer upon the Restricted
Stockholder any right to continue in the employ of the Company or
shall interfere with or restrict in any way the rights of the
Company, which are hereby expressly reserved, to
discharge
