EXHIBIT 99.3
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
1996 EMPLOYEE STOCK INCENTIVE PLAN
INCENTIVE STOCK OPTION AGREEMENT
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This Stock Option Agreement ("Agreement") is made and entered into as
of the Date of Grant indicated below by and between Keystone Automotive
Industries, Inc., a California corporation (the "Company"), and the person named
below ("Employee").
WHEREAS, Employee is an employee of the Company or one or more of its
subsidiaries; and
WHEREAS, pursuant to the Company's 1996 Employee Stock Incentive Plan
(the "Plan"), the committee of the Board of Directors of the Company
administering the Plan (the "Committee") has approved the grant to Employee of
an option to purchase shares of the common stock of the Company (the "Common
Stock"), on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants set forth herein, the parties hereto hereby agree as follows:
1. Grant Of Option; Certain Terms and Conditions. The Company
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hereby grants to Employee, and Employee hereby accepts, as of the Date of Grant,
an option to purchase the number of shares of Common Stock indicated below (the
"Option Shares") at the Exercise Price per share indicated below, which option
shall expire at 5:00 p.m., California time, on the Expiration Date indicated
below and shall be subject to all of the terms and conditions set forth in this
Agreement (the "Option"). On each anniversary of the Date of Grant, the Option
shall become exercisable to purchase, and shall vest with respect to, that
number of Option Shares (rounded to the nearest whole share) equal to the total
number of Option Shares multiplied by the Annual Vesting Rate indicated below.
Employee:
Date of Grant:
Number of shares purchasable:
Exercise Price per share:
Expiration Date:
Annual Vesting Rate:
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The Option is intended to qualify as an incentive stock option under Section 422
of the Internal Revenue Code of 1986, as amended (an "Incentive Stock Option"),
and consequently:
(i) the Expiration Date shall not be more than ten years after the
Date of Grant and the Exercise Price per share shall not be less than the Fair
Market Value (as defined in the Plan) per share on the Date of Grant; provided,
however, that if, on the Date of Grant, Employee owns (after application of the
family and other attribution rules of Section 425(d) of the Internal Revenue
Code of 1986, as amended) more than 10% of the total combined voting power of
all classes of stock of the Company or of its parent or subsidiary corporations,
then the Expiration Date shall not be more than five years after the Date of
Grant and the Exercise Price per share shall not be less than 110% of the Fair
Market Value per share on the Date of Grant; and
(ii) the aggregate Fair Market Value (determined as of the date
such options are granted) of the shares of Common Stock with respect to which
Incentive Stock Options are exercisable for the first time by Employee during
any calendar year (under the Plan and all other stock option plans of the
Company and its parent and subsidiary corporations) shall not exceed $100,000.
2. Acceleration and Termination of Option.
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(a) Termination of Employment.
(i) Termination Within One Year After Change of Control. In the
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event that Employee shall cease to be an employee or independent contractor of
the Company or any of its subsidiaries (such event shall be referred to herein
as the "Termination" of Employee's "Employment") for any reason, or for no
reason, within one year after a Change of Control (as hereinafter defined), then
(A) the portion of the Option that has not vested on or prior to the date of
such Termination of Employment shall fully vest on such date and (B) the Option
shall terminate upon the earlier of the Expiration Date or the first anniversary
of the date of such Termination of Employment. "Change of Control" shall mean
the first to occur of the following events:
(A) any date upon which the directors of the Company who were
last nominated by the Board of Directors (the "Board") for election as
directors cease to constitute a majority of the directors of the
Company;
(B) the date of the first public announcement that any person or
entity, together with all Affiliates and Associates (as such
capitalized terms are defined in Rule 12b-2 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
such person or entity, shall have become the Beneficial Owner (as
defined in Rule 13d-3 promulgated under the Exchange Act) of voting
securities of the Company representing 25% or more of the voting power
of the Company (a "25% Stockholder"); provided, however, that the
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terms "person" and "entity," as used in this
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clause (B), shall not include (1) the Company or any of its
subsidiaries, (2) any employee benefit plan of the Company or any of
its subsidiaries, (3) any entity holding voting securities of the
Company for or pursuant to the terms of any such plan, (4) any person
or entity if the transaction that resulted in such person or entity
becoming a 25% Stockholder was approved in advance by the Board or (5)
any person or entity who was a 25% Stockholder on the date of adoption
of the Plan by the Board; or
(C) a reorganization, merger or consolidation of the Company
(other than a reorganization, merger or consolidation the sole purpose
of which is to change the Company's domicile solely within the United
States) the consummation of which results in the outstanding
securities of any class then subject to the Option being exchanged for
or converted into cash, property or a different kind of securities;
provided, however, that a Change of Control shall not be deemed to
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occur if, as a result of such reorganization, merger or consolidation
of the Company, the securities of any class then subject to the Option
(the "Option Securities") are exchanged for or converted into
securities that represent the same beneficial ownership of the Company
and possess the same voting, liquidation and other rights to which the
Option Securities were entitled immediately prior to such
reorganization, merger or consolidation.
(ii) Retirement. If Employee's Employment is Terminated by reason of
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Employee's retirement in accordance with the Company's then current retirement
policy ("Retirement"), and a Change of Control shall not have occurred within
one year prior thereto, then (A) the portion of the Option that has not vested
on or prior to the date of such Retirement shall terminate on such date and (B)
the remaining vested portion of the Option shall terminate on the date three (3)
months after the date of such Termination of Employment.
(iii) Death or Permanent Disability. If Employee's Employment is
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Terminated by reason of the death or Permanent Disability (as hereinafter
defined) of Employee, and a Change of Control shall not have occurred within one
year prior thereto, then (A) the portion of the Option that has not vested on or
prior to the date of such Termination of Employment shall terminate on such date
and (B) the remaining vested portion of the Option shall terminate upon the
earlier of the Expiration Date or the first anniversary of the date of such
Termination of Employment. "Permanent Disability" shall mean the inability to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to result in
death or that has lasted or can be expected to last for a continuous period of
not less than 12 months. Employee shall not be deemed to have a Permanent
Disability until proof of the existence thereof shall have been furnished to the
Board in such form and manner, and at such times, as the Board may require. Any
determination by the Board that Employee does or does not have a Permanent
Disability shall be final and binding upon the Company and Employee.
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(iv) Other Termination. If Employee's Employment is Terminated for
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no reason, or for any reason other than Retirement, death or Permanent
Disability, and a Change of Control shall not have occurred within one year
prior thereto, then the Option shall terminate upon the date of such Termination
of Employment.
(b) Death Following Termination of Employment. Notwithstanding
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anything to the contrary contained in this Agreement, if Employee shall die at
any time after the Termination of his or her Employment and prior to the
Expiration Date, then (i) the portion of the Option that has not vested on or
prior to the date of such death shall terminate on such date and (ii) the
remaining vested portion of the Option shall terminate on the earlier of the
Expiration Date or the first anniversary of the date of such death.
(c) Other Events Causing Acceleration of Option. The Committee, in
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its sole discretion, may accelerate the exercisability of the Option at any time
and for any reason.
(d) Other Events Causing Termination of Option. Notwithstanding
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anything to the contrary contained in this Agreement, the Option shall terminate
upon the consummation of any of the following events, or, if later, the
thirtieth day following the first date upon which such event shall have been
approved by both the Board and the shareholders of the Company:
(i) the dissolution or liquidation of the Company; or
(ii) a sale of substantially all of the property and assets
of the Company, unless the terms of such sale shall provide
otherwise.
3. Adjustments. In the event that the outstanding securities of the
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class then subject to the Option are increased, decreased or exchanged for or
converted into cash, property or a different number or kind of securities, or
cash, property or securities are distributed in respect of such outstanding
securities, in either case as a result of a reorganization, merger,
consolidation, recapitalization, reclassification, dividend (other than a
regular cash dividend) or other distribution, stock split, reverse stock split
or the like, or in the event that substantially all of the property and assets
of the Company are sold, then, unless such event shall cause the Option to
terminate pursuant to Section 2(d) hereof, the Committee shall make appropriate
and proportionate adjustments in the number and type of shares or other
securities or cash or other property that may thereafter be acquired upon the
exercise of the Option; provided, however, that any such adjustments in the
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Option shall be made without changing the aggregate Exercise Price of the then
unexercised portion of the Option.
4. Exercise.
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(a) The Option shall be exercisable during Employee's lifetime
only by Employee or by his or her guardian or legal representative, and after
Employee's death only by the person or entity entitled to do so under Employee's
last will and testament or applicable intestate law. The Option may only be
exercised by the delivery to the Company of a written notice of such exercise,
which notice shall specify the number of Option Shares to be purchased
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(the "Purchased Shares") and the aggregate Exercise Price for such shares (the
"Exercise Notice"), together with payment in full of such aggregate Exercise
Price in cash or by check payable to the Company; provided, however, that
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payment of such aggregate Exercise Price may instead be made, in whole or in
part, by the delivery to the Company of a certificate or certificates
representing shares of Common Stock, duly endorsed or accompanied by a duly
executed stock powers, which delivery effectively transfers to the Company good
and valid title to such shares, free and clear of any pledge, commitment, lien,
claim or other encumbrance (such shares to be valued on the basis of the
aggregate Fair Market Value (as defined in the Plan) thereof on the date of such
exercise), provided that the Company is not then prohibited from purchasing or
acquiring such shares of Common Stock.
5. Payment of Withholding Taxes. If the Company becomes obligated
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to withhold an amount on account of any tax imposed as a result of the exercise
of the Option, including, without limitation, any federal, state, local or other
income tax, or any F.I.C.A., state disability insurance tax or other employment
tax, then Employee shall, on the first day upon which the Company becomes
obligated to pay such amount to the appropriate taxing authority, pay such
amount to the Company in cash or by check payable to the Company.
6. Notices. All notices and other communications required or
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permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed given if delivered personally or five days after mailing by certified
or registered mail, postage prepaid, return receipt requested, to the Company at
000 Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000, Attention: Xx X. Xxxxx, or to
Employee at the address set forth beneath his or her signature on the signature
page hereto, or at such other addresses as they may designate by written notice
in the manner aforesaid.
7. Stock Exchange Requirements; Applicable Laws. Notwithstanding
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anything to the contrary in this Agreement, no shares of stock purchased upon
exercise of the Option, and no certificate representing all or any part of such
shares, shall be issued or delivered if (i) such shares have not been admitted
to listing upon official notice of issuance on each stock exchange upon which
shares of that class are then listed or (ii) in the opinion of counsel to the
Company, such issuance or delivery would cause the Company to be in violation of
or to incur liability under any federal, state or other securities law, or any
requirement of any stock exchange listing agreement to which the Company is a
party, or any other requirement of law or of any administrative or regulatory
body having jurisdiction over the Company.
8. Nontransferability. Neither the Option nor any interest therein
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may be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise
transferred in any manner other than by will or the laws of descent and
distribution.
9. Plan. The Option is granted pursuant to the Plan, as in effect
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on the Date of Grant, and is subject to all the terms and conditions of the
Plan, as the same may be amended from time to time; provided, however, that no
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such amendment shall deprive Employee, without his or her consent, of the Option
or of any of Employee's rights under this Agreement. The interpretation and
construction by the Committee of the Plan, this Agreement, the Option and such
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rules and regulations as may be adopted by the Committee for the purpose of
administering the Plan shall be final and binding upon Employee. Until the
Option shall expire, terminate or be exercised in full, the Company shall, upon
written request therefor, send a copy of the Plan, in its then-current form, to
Employee or any other person or entity then entitled to exercise the Option.
10. Shareholder Rights. No person or entity shall be entitled to
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vote, receive dividends or be deemed for any purpose the holder of any Option
Shares until the Option shall have been duly exercised to purchase such Option
Shares in accordance with the provisions of this Agreement.
11. Employment or Contract Rights. No provision of this Agreement or
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of the Option granted hereunder shall (i) confer upon Employee any right to
continue in the employ of or contract with the Company or any of its
subsidiaries, (ii) affect the right of the Company and each of its subsidiaries
to terminate the employment of Employee, with or without cause, or (iii) confer
upon Employee any right to participate in any employee welfare or benefit plan
or other program of the Company or any of its subsidiaries other than the Plan.
EMPLOYEE HEREBY ACKNOWLEDGES AND AGREES THAT THE COMPANY AND EACH OF ITS
SUBSIDIARIES MAY TERMINATE THE EMPLOYMENT OF EMPLOYEE AT ANY TIME AND FOR ANY
REASON, OR FOR NO REASON, UNLESS EMPLOYEE AND THE COMPANY OR SUCH SUBSIDIARY ARE
PARTIES TO A WRITTEN EMPLOYMENT AGREEMENT THAT EXPRESSLY PROVIDES OTHERWISE.
12. Governing Law. This Agreement and the Option granted hereunder
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shall be governed by and construed and enforced in accordance with the laws of
the State of California without reference to choice or conflict of law
principles.
IN WITNESS WHEREOF, the Company and Employee have duly executed this
Agreement as of the Date of Xxxxx.
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
By____________________________
Authorized Representative
EMPLOYEE
______________________________
Signature
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Printed Name
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Street Address
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City, State and Zip Code
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Social Security Number
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