<PAGE>
As filed with the Securities and Exchange Commission on March 27, 1997
Registration No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
California 95-2920557
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
700 East Bonita Avenue 91767
Pomona, California (Zip code)
(Address of principal executive offices)
----------
1996 EMPLOYEE STOCK INCENTIVE PLAN
(Full title of the plan)
----------
CHARLES J. HOGARTY
Chief Operating Officer
Keystone Automotive Industries, Inc.
700 East Bonita Avenue
Pomona, California 91767
(Name and address of agent for service)
(909) 624-8041
(Telephone number, including area code, of agent for service)
Copy to:
PAUL H. IRVING, ESQ.
Manatt, Phelps & Phillips, LLP
11355 West Olympic Boulevard
Los Angeles, California 90064
(310) 312-4209
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Proposed Proposed
Amount maximum maximum Amount of
Title of securities to be offering price aggregate registration
to be registered registered (1) per share (2) offering price fee
- ----------------------------------------------------------------------------------------
Common Stock 730,000 $16.50 $12,045,000 $3,650
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement covers, in addition to the number of shares of
Common Stock stated above, such indeterminate number of shares of Common
Stock as may be issued upon exercise of options granted under the 1996
Employee Stock Incentive Plan as a result of the adjustment provisions
thereof.
(2) Estimated solely for purposes of calculating the amount of the registration
fee pursuant to Rule 457 based upon the last sale price of the Common Stock
as reported on the Nasdaq National Market System on March 21, 1997.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The following documents listed under this Part I and the documents
incorporated by reference under Item 3 of Part II to this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended (the "Securities Act"), and are
incorporated herein by reference.
Item 1. PLAN INFORMATION.
a. Prospectus for the 1996 Employee Stock Incentive Plan
b. 1996 Employee Stock Incentive Plan
c. Form of Incentive Stock Option Agreement
d. Form of Non-Qualified Stock Option Agreement
e. Form of Restricted Stock Agreement
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The written statement required to be provided to participants pursuant
to this Item is set forth in the Prospectus referred to in Item 1 above.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Keystone Automotive Industries, Inc. (the "Registrant") hereby files
this Registration Statement on Form S-8 with the Securities and Exchange
Commission (the "Commission") to register 730,000 shares of the Registrant's
Common Stock for issuance pursuant to the Registrant's 1996 Employee Stock
Incentive Plan (the "Plan"), and such indeterminate number of shares as may
become available under the Plan as a result of the adjustment provisions
thereof.
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed by the Registrant with the
Commission are incorporated in this Registration Statement by reference:
(a) That certain Prospectus dated June 20, 1996 filed by
the Registrant pursuant to Rule 424(b) promulgated under the
Securities Act that contain audited financial statements for
the Registrant's latest fiscal year for which such
statements have been filed.
(b) All other reports filed by the Registrant pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since the end of the fiscal year covered
by the document referred to in (a) above.
(c) The description of the Common Stock of the Registrant contained
in the Registrant's Registration Statement on Form 8-A, as declared
effective by the Commission on June 20, 1996, including any amendment
or report filed for the purpose of updating such information.
All documents filed by the Registrant pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Any statement made in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which is also
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 204 of the General Corporation Law of the State of California
(the "California Law") permits the limitation of the personal liability of a
director for monetary damages in an action brought by or in the right of the
corporation for breach of a director's duties to the corporation and its
shareholders under certain conditions and subject to certain limitations.
II-1
<PAGE>
Section 317 of the California Law (i) permits indemnification of
directors, officers, employees and other agents of the corporation under certain
conditions and subject to certain limitations and (ii) provides that the
corporation has the power to purchase and maintain insurance on behalf of its
directors, officers, employees and other agents against any liability asserted
against or incurred by them in such capacity or arising out of their status as
such.
Article Seven of the Restated Articles of Incorporation of the
Registrant provides as follows:
SEVEN: The liability of the directors of this corporation
for monetary damages shall be eliminated to the fullest
extent permissible under California law. This corporation
is authorized to provide indemnification of agents (as
defined in Section 317 of the California Law) through bylaw
provisions, agreements with agents, vote of shareholders or
disinterested directors or otherwise, in excess of the
indemnification otherwise permitted by Section 317 of the
California Law, subject only to the applicable limits set
forth in Section 204 of the California Law with respect to
actions for breach of duty to the corporation and its
shareholders. This corporation is authorized to purchase
and maintain insurance on behalf of its agents against any
liability asserted against or incurred by the agent in such
capacity or arising out of the agent's status as such from a
company, the shares of which are owned in whole or in part
by this corporation, provided that any policy issued by such
company is limited to the extent required by applicable law.
Any repeal or modification of the foregoing provisions of
this Article Seven by the shareholders of this corporation
shall not adversely affect any right or protection of an
agent of this corporation existing at the time of that
repeal or modification.
Section 3.16 of the Amended and Restated Bylaws of the Registrant
provides as follows:
Section 3.16 INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND
OTHER AGENTS.
(a) The corporation shall, to the maximum extent and in the
manner permitted by the California Corporations Code
("Code"), indemnify each of its directors against expenses
(as defined in Section 317(a) of the Code), judgments,
fines, settlements, and other amounts actually and
reasonably incurred in connection with any proceeding (as
defined in Section 317(a) of the Code), arising by reason of
the fact that such person is or was an agent of the
corporation. For purposes of this Section 3.16, a
"director" of the corporation includes any person (i) who is
or was a director of the corporation, (ii) who is or was
serving at the request of the corporation as a director of
another corporation, partnership, joint venture, trust or
other enterprise, or (iii) who was a director of a
corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such
predecessor corporation.
(b) The corporation shall have the power, to the extent and
in the manner permitted by the Code, to indemnify each of
its officers, employees and agents against expenses (as
defined in Section 317(a) of the Code), judgments, fines,
settlements, and other amounts actually and reasonably
incurred in connection with any proceeding (as defined in
Section 317(a) of the Code), arising by reason of the fact
that such person is or was an officer, employee or agent of
the corporation. For purposes of this Section 3.16, an
"officer," "employee" or "agent" of the corporation includes
any person (i) who is or was an officer, employee or agent
of the corporation, (ii) who is or was serving at the
request of the corporation as an officer, employee or agent
of another corporation, partnership, joint venture, trust or
other enterprise, or (iii) who was an officer, employee or
agent of the corporation
II-2
<PAGE>
which was a predecessor corporation of the corporation or
of another enterprise at the request of such predecessor
corporation.
(c) Expenses incurred in defending any civil or criminal
action or proceeding for which indemnification is required
pursuant to Section 3.16(a) shall be paid by the corporation
in advance of the final disposition of such action or
proceeding upon receipt of an undertaking by or on behalf of
the indemnified party to repay such amount if it shall
ultimately be determined that the indemnified party is not
entitled to be indemnified as authorized in this
Section 3.16. Expenses incurred in defending any civil or
criminal action or proceeding for which indemnification is
permitted pursuant to Section 3.16(b) may be paid by the
corporation in advance of the final disposition of such
action or proceeding upon receipt of an undertaking by or on
behalf of the indemnified party to repay such amount if it
shall ultimately be determined that the indemnified party is
not entitled to be indemnified as authorized in this
Section 3.16.
(d) The indemnification provided by this Section 3.16 shall
not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any bylaw,
agreement, vote of shareholders or disinterested directors
or otherwise, both as to action in an official capacity and
as to action in another capacity while holding such office,
to the extent that such additional rights to indemnification
are authorized in the Articles of Incorporation.
(e) The corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was an
agent of the corporation against any liability asserted
against or incurred by such person in such capacity or
arising out of such person's status as such, whether or not
the corporation would have the power to indemnify him
against such liability under the provisions of this
Section 3.16.
(f) No indemnification or advance shall be made under this
Section 3.16, except where such indemnification or advance
is mandated by law or the order, judgment or decree of any
court of competent jurisdiction, in any circumstance where
it appears:
(1) That it would be inconsistent with a provision of
the Articles of Incorporation, these Bylaws, a resolution of
the shareholders or an agreement in effect at the time of
the accrual of the alleged cause of action asserted in the
proceeding in which the expenses were incurred or other
amounts were paid, which prohibits or otherwise limits
indemnification; or
(2) That it would be inconsistent with any condition
expressly imposed by a court in approving a settlement.
The Registrant has entered into indemnification agreements with
certain of its directors and executive officers which require the Registrant to
indemnify such persons to the fullest extent permitted by applicable law.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-3
<PAGE>
Item 8. EXHIBITS.
Exhibit
Number Description
------- -----------
3.1 Restated Articles of Incorporation of the Registrant.
3.2 Amended and Restated Bylaws of the Registrant.
5.1 Opinion of Manatt, Phelps & Phillips, LLP.
23.1 Consent of Manatt, Phelps & Phillip, LLP (see Exhibit 5.1).
23.2 Consent of Independent Auditors (Ernst & Young LLP).
24.1 Power of Attorney (See page II-6).
99.1 1996 Employee Stock Incentive Plan.
99.2 Form of Incentive Stock Option Agreement.
99.3 Form of Non-Qualified Stock Option Agreement.
99.4 Form of Restricted Stock Agreement.
Item 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if this Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference into this Registration Statement.
(2) That for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
(d) The undersigned Registrant hereby undertakes to deliver or cause
to be delivered with the Prospectus, to each person the Prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the Prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14-c under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the Prospectus, to deliver, or
cause to be delivered to each person to whom the Prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the Prospectus to provide such interim financial information.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Pomona, State of California, on this twenty-first day
of March, 1997.
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
By /s/Charles J. Hogarty
--------------------------------------
Charles J. Hogarty,
Chief Operating Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Charles J. Hogarty and John M.
Palumbo his true and lawful attorney-in-fact and agent, each with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this Registration Statement, and to
file the same with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent with full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each said attorney-in-fact and
agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Virgil K. Benton II Chairman, Chief March 21, 1997
- -------------------------- Executive Officer and Director
Virgil K. Benton II (Principal Executive Officer)
/s/ Charles J. Hogarty President, Chief Operating Officer March 21, 1997
- -------------------------- and Director
Charles J. Hogarty
/s/ Al A. Ronco Executive Vice President, March 21, 1997
- -------------------------- Secretary and Director
Al A. Ronco
/s/ Robert L. Blanton Vice President - Finance March 21, 1997
- -------------------------- (Principal Financial and Accounting Officer)
Robert L. Blanton
/s/ John M. Palumbo
- -------------------------- Vice President and Treasurer March 21, 1997
John M. Palumbo
/s/ Timothy C. McQuay
- -------------------------- Director March 21, 1997
Timothy C. McQuay
/s/ George E. Seebart
- -------------------------- Director March 21, 1997
George E. Seebart
</TABLE>
II-6
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Sequential
Number Description Page Number
- ---------- ----------- -----------
<S> <C> <C>
3.1 Restated Articles of Incorporation of the Registrant. 11
3.2 Amended and Restated Bylaws of the Registrant. 16
5.1 Opinion of Manatt, Phelps & Phillips, LLP 32
23.1 Consent of Manatt, Phelps & Phillips, LLP (see Exhibit 5.1). --
23.2 Consent of Independent Auditors (Ernst & Young LLP). 36
24.1 Power of Attorney (See page II-6). --
99.1 1996 Employee Stock Incentive Plan. 38
99.2 Form of Incentive Stock Option Agreement. 44
99.3 Form of Non-Qualified Stock Option Agreement. 50
99.4 Form of Restricted Stock Agreement. 56
</TABLE>
<PAGE>
EXHIBIT 3.1
RESTATED ARTICLES OF INCORPORATION
<PAGE>
RESTATED ARTICLES OF INCORPORATION
OF
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
Virgil K. Benton II and Al A. Ronco certify that:
1. They are the Chairman of the Board and the Secretary,
respectively, of Keystone Automotive Industries, Inc., a California corporation
(the "Corporation").
2. The Articles of Incorporation of the Corporation are amended and
restated to read as set forth on Exhibit "A" attached hereto.
3. The amendment and restatement of the Articles of Incorporation
has been duly approved by the Board of Directors.
4. The amendment and restatement of the Articles of Incorporation
has been duly approved by the required vote of shareholders in accordance with
Section 902 of the California General Corporation Law ("California Law"). The
total number of outstanding shares of the Corporation is 5,800,000. The number
shares voting in favor of the amendment equaled or exceeded the vote required.
The percentage vote required was more than 50%.
We further declare under penalty of perjury under the laws of the
State of California that the matters set forth in this certificate are true and
correct of our own knowledge.
Executed at Los Angeles, California this thirty-first day of May,
1996.
/s/ Virgil K. Benton II
-----------------------------------------------
Virgil K. Benton II, Chairman of the Board
/s/ Al. A. Ronco
-----------------------------------------------
Al A. Ronco, Secretary
<PAGE>
Exhibit "A"
RESTATED ARTICLES OF INCORPORATION
OF
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
ONE: The name of this corporation is Keystone Automotive
Industries, Inc.
TWO: The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California other than the banking business, the trust company business or
the practice of a profession permitted to be incorporated by the California
Corporations Code.
THREE: This corporation is authorized to issue two classes of shares of
stock designated "Common Stock" and "Preferred Stock," respectively. The total
number of shares of stock which this corporation shall have authority to issue
is 23,000,000 shares, consisting of 20,000,000 shares of Common Stock and
3,000,000 shares of Preferred Stock.
A. COMMON STOCK
1. Except where otherwise provided by law, by these
Restated Articles of Incorporation, or by resolution of the Board of Directors
pursuant to this Article THREE, the holders of the Common Stock issued and
outstanding shall have and possess the exclusive right to notice of
shareholders' meetings and the exclusive voting rights and powers.
2. Subject to all of the rights of the Preferred Stock,
dividends may be paid on the Common Stock, as and when declared by the Board of
Directors, out of any funds of the corporation legally available for the payment
of such dividends.
B. PREFERRED STOCK
The Preferred Stock may be divided into such number of series as
the Board of Directors may determine. The Board of Directors is authorized to
determine and alter the rights, preferences, privileges and restrictions, or any
of them, granted to or imposed upon any wholly unissued series of Preferred
Stock and to fix the number of shares of any series of Preferred Stock and the
designation of any such series of Preferred Stock. The Board of Directors,
within the limits and restrictions stated in any resolution or resolutions of
the Board of Directors originally fixing the number of shares constituting any
series, may increase or decrease (but not below the number of shares of such
series then outstanding) the number of shares of any series subsequent to the
issue of shares of that series.
FOUR: A. This Article FOUR shall become effective only when this
corporation becomes a listed corporation within the meaning of Section 301.5 of
the California General Corporations Law ("California Law"), which section
provides that a listed corporation means a corporation with outstanding shares
listed on the New York Stock Exchange or the American Stock Exchange, or a
corporation with outstanding securities designated as qualified for trading as a
national market system security on the National Association of Securities
Dealers Automatic Quotation System (or any successor national market system) if
the corporation has at least 800 holders of its equity securities as of the
record date of the corporation's most recent annual meeting of shareholders.
B. Upon the effectiveness of this Article FOUR, the Board of
Directors shall be classified into three classes, as nearly equal in numbers as
the then total number of directors constituting the entire Board of Directors
permits, the members of each class to serve for a term of three years. If the
number of directors is not
1
<PAGE>
divisible by three, the first extra director shall be assigned to the first
class of directors and any additional director shall be assigned to the second
class of directors.
C. Upon the effectiveness of this Article FOUR, the election of
directors by the shareholders shall not be by cumulative voting. At each
election of directors, each shareholder entitled to vote may vote all the shares
held by that shareholder for each of several nominees for director up to the
number of directors to be elected. The shareholder may not cast more votes for
any single nominee than the number of shares held by the shareholder.
D. At the first annual meeting of shareholders held after the
effectiveness of this Article FOUR, directors of the first class shall be
elected to hold office for a term expiring at the next succeeding annual meeting
of shareholders, directors of the second class shall be elected to hold office
for a term expiring at the second succeeding annual meeting of shareholders and
directors of the third class shall be elected to hold office for a term expiring
at the third succeeding annual meeting of shareholders. At each subsequent
annual meeting of shareholders, the successors to the class of directors whose
term shall then expire shall be elected to hold office for a term expiring at
the third succeeding annual meeting of shareholders.
E. If at any time this corporation ceases to be a listed
corporation as defined in Section 301.5 of the California Law, at each
succeeding annual meeting of shareholders where the existing term of a class of
directors is expiring, the directors of each such class shall then be elected
for a term expiring in one year until all directors are elected for one year
terms. The election of all directors at the annual meeting of shareholders for
a term of one year shall continue until the corporation once again qualifies as
a listed corporation within the meaning of Section 301.5 of the California Law,
and the foregoing provisions of this Article FOUR shall be reinstated.
FIVE: The following provisions are inserted for the management of
the business and for the conduct of the affairs of the corporation and for
defining and regulating the powers of the corporation and its directors and
shareholders and are in furtherance and not in limitation of the powers
conferred upon the corporation by statute:
(a) Unless otherwise expressly provided in the California Law,
approval by the holders of at least two-thirds of the outstanding shares of the
capital stock of this corporation entitled to vote (including the affirmative
vote of at least two-thirds of the outstanding shares of any class or series of
the capital stock entitled to vote separately) shall be required with respect to
each of the following actions:
A. Any amendment to or the elimination of Articles FOUR, FIVE,
SIX or SEVEN of these Restated Articles of Incorporation.
B. Any amendment to or the elimination of any provision of the
Bylaws of this corporation which requires approval by the shareholders to become
effective.
(b) Unless otherwise expressly provided in the California Law,
notwithstanding anything to the contrary in these Restated Articles of
Incorporation or the Bylaws of this corporation, (A) vacancies and newly created
directorships, whether resulting from an increase in the size of the Board of
Directors, from the death, resignation, disqualification or removal of a
director or otherwise, shall be filled solely by the affirmative vote of at
least two-thirds of the remaining directors then in office, or by the sole
remaining director, even though less than a quorum of the Board of Directors,
and (B) any director elected in accordance with clause (A) of this paragraph (b)
shall hold office for the remainder of the full term of the class of directors
in which the vacancy occurred or the new directorship was created and until such
director's successor shall have been elected and qualified.
SIX: Except as set forth in Section 603(d) of the California Law, no
action required to be taken or which may be taken at any annual or special
meeting of shareholders of the corporation may be taken by written consent of
shareholders, unless a consent or consents in writing, setting forth the action
so taken, is or are signed by the holders of at least two-thirds of the
outstanding shares of the capital stock of the corporation entitled to vote
thereon.
2
<PAGE>
SEVEN: The liability of the directors of this corporation for monetary
damages shall be eliminated to the fullest extent permissible under California
law. This corporation is authorized to provide indemnification of agents (as
defined in Section 317 of the California Law) through bylaw provisions,
agreements with agents, vote of shareholders or disinterested directors or
otherwise, in excess of the indemnification otherwise permitted by Section 317
of the California Law, subject only to the applicable limits set forth in
Section 204 of the California Law with respect to actions for breach of duty to
the corporation and its shareholders. This corporation is authorized to
purchase and maintain insurance on behalf of its agents against any liability
asserted against or incurred by the agent in such capacity or arising out of the
agent's status as such from a company, the shares of which are owned in whole or
in part by this corporation, provided that any policy issued by such company is
limited to the extent required by applicable law. Any repeal or modification of
the foregoing provisions of this Article SEVEN by the shareholders of this
corporation shall not adversely affect any right or protection of an agent of
this corporation existing at the time of that repeal or modification.
EIGHT: This corporation elects to be governed by all of the provisions
of the General Corporation Law of 1977 not otherwise applicable to it under
Chapter 23 thereof.
3
<PAGE>
EXHIBIT 3.2
Amended and Restated Bylaws
<PAGE>
AMENDED AND RESTATED BYLAWS
OF
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.,
a California corporation
Adopted on April 17, 1996
ARTICLE I
OFFICES
Section 1.1 PRINCIPAL EXECUTIVE OFFICE. The principal executive
office of the corporation is hereby fixed and located at 700 East Bonita Avenue,
Pomona, California 91767. The Board of Directors is hereby granted full power
and authority to change said principal executive office from one location to
another.
Section 1.2 OTHER OFFICES. Other business offices may at any time be
established by the Board of Directors at any place or places where the
corporation is qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 2.1 PLACE OF MEETINGS. All meetings of shareholders shall be
held at the principal executive office of the corporation or at any other place
within or outside the State of California as may be designated by the Board of
Directors.
Section 2.2 ANNUAL MEETINGS.
a. TIME AND PLACE. The annual meeting of shareholders shall be
held each year on a date and at a time designated by the Board of Directors.
The date so designated for the initial meeting shall be within fifteen (15)
months after the organization of the corporation, and the date so designated for
each subsequent meeting shall be within fifteen (15) months after the last
annual meeting.
b. BUSINESS TO BE TRANSACTED. At the annual meetings,
directors shall be elected, reports of the affairs of the corporation shall be
considered, and any other business may be transacted which is within the powers
of the shareholders.
c. NOTICE, MEANS. Written notice of each annual meeting shall
be given to each shareholder entitled to vote, either personally or by mail or
other means of written communication, charges prepaid, addressed to such
shareholder at his address appearing on the books of the corporation or given by
him to the corporation for the purpose of notice. If any notice or report
addressed to the shareholder at the address of such shareholder appearing on the
books of the corporation is returned to the corporation by the United States
Postal Service marked to indicate that the United States Postal Service is
unable to deliver the notice or report to the shareholder at such address, all
future notices or reports shall be deemed to have been duly given without
further mailing if the same shall be available for the shareholder upon written
demand of the shareholder at the principal executive office of the corporation
for a period of one year from the date of the giving of the notice or report to
all other shareholders. If a shareholder gives no address, notice shall be
deemed to have been given him if sent by mail or other means of written
communication addressed to the place where the principal executive office of the
corporation is situated, or if published at least once in some newspaper of
general circulation in the county in which said principal executive office is
located.
An affidavit of the mailing or other means of giving any notice of any
shareholders' meeting shall be executed by the Secretary, any Assistant
Secretary or any transfer agent of the corporation giving the notice, and shall
1
<PAGE>
be filed and maintained in the minute book of the corporation. Such affidavit
shall be prima facie evidence of the giving of such notice.
d. NOTICE, TIME AND CONTENT. All such notices shall be given
to each shareholder entitled thereto not less than ten (10) days nor more than
sixty (60) days before each annual meeting. Any such notice shall be deemed to
have been given at the time when delivered personally or deposited in the mail
or sent by other means of written communication.
Such notices shall specify:
(1) the place, the date, and the hour of such meeting;
(2) those matters which the Board of Directors, at the time
of the mailing of the notice, intends to present for action by the shareholders;
(3) if directors are to be elected, the names of nominees
intended at the time of the notice to be presented by management for election;
(4) the general nature of a proposal, if any, to take
action with respect to approval of, (a) a contract or other transaction with an
interested director, (b) amendment of the articles of incorporation, (c) a
reorganization of the corporation as defined in Section 181 of the General
Corporation Law, (d) voluntary dissolution of the corporation, or (e) a
distribution in dissolution other than in accordance with the rights of
outstanding preferred shares, if any; and,
(5) such other matters, if any, as may be expressly
required by statute.
Section 2.3 SPECIAL MEETINGS.
(a) CALLING OF. Special meetings of the shareholders, for the
purpose of taking any action permitted by the shareholders under the General
Corporation Law and the Articles of Incorporation of this corporation, may be
called at any time by the Board of Directors, the Chairman of the Board, the
President or by one or more shareholders holding not less than ten percent (10%)
of the votes at the meeting. A shareholder entitled to call a special meeting
of shareholders for any proper purpose shall submit a request therefor in
writing directed to the Chairman of the Board, the Chief Executive Officer, any
Vice President or the Secretary.
(b) TIME AND NOTICE OF. Upon receipt of such request, the
corporation forthwith shall cause notice to be given to shareholders entitled to
vote that a meeting will be held at a time requested by the person or persons
calling the meeting, which time shall be not less than thirty-five (35) nor more
than sixty (60) days after receipt of the request. If such notice is not given
within twenty (20) days after receipt of such request, the persons calling for
the meeting may give notice thereof in the manner provided by these Bylaws.
Except in special cases where other express provision is made by statute, notice
of such special meetings shall be given in the same manner as for annual
meetings of shareholders. In addition to the matters required by items (i) and,
if applicable (iii) of Section 2.2(d), notice of any special meeting shall
specify the general nature of the business to be transacted, and no other
business may be transacted at such meeting.
Section 2.4 QUORUM. A majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum for the transaction
of business at a meeting of shareholders. The shareholders present at a duly
called or held meeting at which a quorum is present may continue to do business
until adjournment, notwithstanding the withdrawal of enough shareholders to
leave less than a quorum, if any action taken (other than adjournment) is
approved by at least a majority of the shares required to constitute a quorum.
Section 2.5 ADJOURNED MEETING AND NOTICE THEREOF. Any shareholders'
meeting, annual or special, whether or not a quorum is present, may be adjourned
from time to time by the vote of a majority of the shares, the holders of which
are either present in person or represented by proxy thereat. When any meeting
of
2
<PAGE>
shareholders is adjourned to another time or place, written notice need not
be given of the adjourned meeting if the time and place are announced at a
meeting at which the adjournment is taken, unless a new record date for the
adjourned meeting is fixed, or unless the adjournment is for more than
forty-five (45) days in which case the Board of Directors shall set a new
record date. For any adjourned meeting requiring notice, such notice shall be
given to each shareholder of record entitled to vote at the adjourned meeting
in accordance with the provisions of Sections 2.2 and 2.3. At any adjourned
meeting the corporation may transact any business which might have been
transacted at the original meeting.
Section 2.6 VOTING.
(a) RECORD DATE. Unless a record date for voting purposes be
fixed as provided in Section 5.1 of Article V of these Bylaws then, subject to
the provisions of Sections 702 and 704 of the General Corporation Law of
California (relating to voting of shares held by a fiduciary, in the name of a
corporation, or in joint ownership), only persons in whose names shares entitled
to vote standing on the stock records of the corporation at the close of
business on the business day next preceding the day on which notice of the
meeting is given or if such notice is waived, at the close of business on the
business day next preceding the day on which the meeting of shareholders is
held, shall be entitled to vote at such meeting, and such day shall be the
record date for such meeting.
(b) BALLOT. The shareholders' vote may be oral or by ballot;
provided, however, all elections for directors must be by ballot if demand for
election by ballot is made by a shareholder at the meeting and before the voting
begins. If a quorum is present, except with respect to election of directors,
the affirmative vote of the majority of the shares represented at the meeting
and entitled to vote on any matter shall be the act of the shareholders, unless
the vote of a greater number or voting by classes is required by the General
Corporation Law of California or the Restated Articles of Incorporation or
Bylaws of the corporation.
(c) VOTING. Except as otherwise provided in the Restated
Articles of Incorporation or as set forth in this paragraph (c), each
outstanding share of the capital stock of the corporation, regardless of class,
shall be entitled to one vote on each matter submitted to a vote of
shareholders. Except as otherwise provided in Article FOUR of the Restated
Articles of Incorporation and Article III, Section 3.4, below, at any election
of directors, every shareholder complying with this paragraph (c) and entitled
to vote may cumulate his or her votes and give one candidate a number of votes
equal to the number of directors to be elected multiplied by the number of votes
to which the shareholder's shares are entitled, or distribute the shareholder's
votes on the same principal among as many candidates as the shareholder thinks
fit. No shareholder shall be entitled to cumulate votes (I.E., cast for any one
or more candidates a number of votes greater than the number of the
shareholder's shares) unless the candidates' names have been properly placed in
nomination prior to commencement of the voting and a shareholder has given
notice prior to commencement of the voting of the shareholder's intention to
cumulate votes. If any shareholder has given such a notice, then every
shareholder entitled to vote may cumulate votes for candidates in nomination.
The candidates receiving the highest number of votes, up to the number of
directors to be elected, shall be elected.
Section 2.7 VALIDATION OF DEFECTIVELY CALLED OR NOTICED MEETINGS.
The transactions of any meeting of shareholders, either annual or special,
however called and noticed, and wherever held, shall be as valid as though had
at a meeting duly held after regular call and notice, if a quorum be present
either in person or by proxy, and if, either before or after the meeting, each
of the persons entitled to vote, who was not present in person or by proxy,
signs a written waiver of notice or a consent to a holding of the meeting, or an
approval of the minutes. The waiver of notice or consent need not specify
either the business to be transacted or the purpose of any annual or special
meeting of shareholders, except that if action is taken or proposed to be taken
for approval of any of those matters specified in Section 2.2(d)(iv) of
Article II, the waiver of notice or consent shall state the general nature of
the proposal. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Attendance by a person at a meeting shall also constitute a waiver of
notice of that meeting, except when the person objects, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened, and except that attendance at a meeting is not a waiver of
any right to object to the consideration of matters required by the General
Corporation Law of the State of California to be included in the notice but not
so included, if such objection is expressly made at the meeting.
3
<PAGE>
Section 2.8 ACTION WITHOUT MEETING.
(a) ACTION BY WRITTEN CONSENT AND NOTICE THEREOF. Any action
which may be taken at any annual or special meeting of shareholders, including
the election of directors, may be taken without a meeting and without prior
notice if a consent in writing, setting forth the action so taken, is signed by
the holders of at least two-thirds of the outstanding shares entitled to vote on
that action. If the consents of all shareholders entitled to vote have been
solicited in writing, and if the unanimous written consents of all shareholders
have not been obtained, notice shall be given as provided herein.
(i) Notice shall be given of any proposed shareholder
approval of, (a) a contract or other transaction with an interested director,
(b) indemnification of an agent of the corporation as authorized by Section 3.16
of Article III of these Bylaws, (c) a reorganization of the corporation as
defined in Section 181 of the General Corporation Law of California, or (d) a
distribution in dissolution other than in accordance with the rights of
outstanding preferred shares, if any. The notice referred to herein shall be
given at least ten (10) days before the consummation of the action authorized by
such approval.
(ii) Prompt notice of the taking of any other corporate
action shall be given to those shareholders entitled to vote who have not
consented in writing. Such notices shall be given in the manner and shall be
deemed to have been given as provided in Section 2.2 of Article II of these
Bylaws.
(b) ELECTION TO FILL VACANCY. In the case of an election to
fill a vacancy on the Board of Directors which vacancy (1) was not created by
removal or (2) has not been filled by the Board of Directors in accordance with
Section 3.5(b) of Article III of these Bylaws, a director may be elected to fill
such vacancy by the written consent of the holders of a majority of the
outstanding shares entitled to vote for the election of directors. An election
by the written consent of the shareholders to fill a vacancy created by removal
may be made only by the unanimous written consent of the holders of all
outstanding shares entitled to vote for the election of directors.
(c) FILING OF CONSENTS; RECORD DATE. All written consents of
the shareholders shall be filed with the Secretary of the corporation. Unless,
as provided in Section 5.1 of Article V of these Bylaws, the Board of Directors
has fixed a record date for the determination of shareholders entitled to notice
of and to give such written consent, the record date for such determination
shall be the day on which the first written consent is given.
(d) REVOCATION OF CONSENT. Any shareholder giving a written
consent, or the shareholder's proxyholders, or a transferee of the shares of a
personal representative of the shareholder or his respective proxyholders, may
revoke the consent by a writing received by the corporation prior to the time
that written consents of the number of shares required to authorize the proposed
action have been filed with the Secretary of the corporation, but may not do so
thereafter. Such revocation shall be effective upon its receipt by the
Secretary of the corporation.
Any action by the shareholders with respect to any amendment to or the
elimination of this Article II, Section 2.8, shall require approval by the
holders of two-thirds of the outstanding shares of the corporation.
Section 2.9 PROXIES. Every person entitled to vote or execute
consents shall have the right to do so either in person or by one or more agents
authorized by a written proxy executed by such person or his duly authorized
agent and filed with the Secretary of the corporation. Any proxy duly executed
is not revoked and continues in full force and effect until (i) an instrument
revoking it or a duly executed proxy bearing a later date is filed with the
Secretary of the corporation prior to the vote pursuant thereto, (ii) the person
executing the proxy attends the meeting and votes in person, or (iii) written
notice of the death or incapacity of the maker of such proxy is received by the
corporation before said proxy is voted and counted. In the determination of the
validity and effect of proxies, the dates contained on the forms of proxy shall
presumptively determine the order of execution of the proxies, regardless of the
postmark dates on the envelopes in which they are mailed. Unless otherwise
provided in the proxy, no proxy shall be valid after the expiration of
eleven (11) months from the date of such proxy.
Section 2.10 INSPECTORS OF ELECTION.
4
<PAGE>
(a) APPOINTMENT AND NUMBER. In advance of any meeting of
shareholders, the Board of Directors may appoint any persons, other than
nominees for office, as inspectors of election to act at such meeting or any
adjournment thereof. If inspectors of election are not so appointed, or if any
person so appointed fails to appear or refuses to act, the chairman of any such
meeting may, and on the request of any shareholder or his proxy shall, appoint
inspectors of election (or persons to replace those who so fail or refuse) at
the meeting. The number of inspectors shall be either one (1) or three (3). If
appointed at a meeting on the request of one or more shareholders or proxies,
the majority of shares represented in person or by proxy shall determine whether
one (1) or three (3) inspectors are to be appointed.
(b) DUTIES. The duties of such inspectors shall be as
prescribed by Section 707 of the General Corporation Law of California and shall
include: determining the number of shares outstanding and the voting power of
each, the shares represented at the meeting, the existence of a quorum, the
authenticity, validity and effect of proxies; receiving votes, ballots or
consents; hearing and determining all challenges and questions in any way
arising in connection with the right to vote; counting and tabulating all votes
or consents; determining when the polls shall close; determining the result; and
such acts as may be proper to conduct the election or vote with fairness to all
shareholders. The inspectors of election shall perform their duties
impartially, in good faith, to the best of their ability and as expeditiously as
is practical. If there are three (3) inspectors of election, the decision, act
or certificate of a majority is effective in all respects as the decision, act
or certificate of all. Any report or certificate made by the inspectors of
election is PRIMA FACIE evidence of the facts stated therein.
Section 2.11 NOMINATIONS FOR DIRECTOR; SHAREHOLDER PROPOSALS.
(a) NOMINATION OF DIRECTORS. Nominations for election of
members of the Board of Directors may be made by the Board of Directors or by
any shareholder of any outstanding class of voting stock of the corporation
entitled to vote for the election of directors in accordance with this Section
2.11.
(b) OTHER PROPOSALS. Any shareholder of the corporation
entitled to vote at any annual or special meeting of shareholders may make
nominations for the election of directors and other proposals for inclusion on
the agenda of any such meeting provided such shareholder complies with the
timely notice provisions set forth in this Section 2.11 (as well as any
additional requirements under any applicable law or regulation).
(c) TIMELY NOTICE BY SHAREHOLDERS. A shareholder's notice shall
be delivered to or mailed and received at the principal executive offices of the
corporation (i) in the case of any special meeting and of the first annual
meeting held after the effective date of these Bylaws, not less than thirty (30)
days nor more than sixty (60) days prior to the meeting date specified in the
notice of such meeting; PROVIDED, however, that if less than forty (40) days'
notice or prior public disclosure of the date of such meeting is given or made
to shareholders, notice by shareholder to be timely must be so received not
later than the close of business on the tenth day following the day on which
such notice of the date of such meeting was mailed or such public disclosure was
made, and (ii) in the case of any subsequent annual meeting, not less than
ninety (90) days prior to the day and month on which, in the immediately
preceding year, the annual meeting for such year had been held. Such
shareholder's notice shall set forth (A) as to each person whom the shareholder
proposes to nominate for election or re-election as a director, (i) the name,
age, business address and residence address of such person, (ii) the principal
occupation or employment of such person, the class and number of shares of the
corporation which are beneficially owned by such person that are required to be
disclosed in solicitations of the proxies with respect to nominees for election
as directors, pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (including, without limitation, such person's written consent
to being named in the proxy statement as a nominee and to serving as a
directors, if elected); (B) as to each action item required to be included on
the agenda, a description, in sufficient detail, of the purpose and effect of
the proposal to the extent necessary to properly inform all shareholders
entitled to vote thereon prior to any such vote; and (C) as to the shareholder
giving the notice, (i) the name and address, as they appear on the corporation's
books, of such shareholder and the class and (ii) number of shares of the
corporation which are beneficially owned by such shareholder.
(d) FAILURE TO PROVIDE TIMELY NOTICE, ETC.. No person nominated
by a shareholder shall be elected as a director of the corporation unless
nominated in accordance with the procedures set forth in this Section 2.11. The
Chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting that a nomination
5
<PAGE>
or other proposal by a shareholder was not properly brought before the
meeting, and, if the Chairman shall so determine, he shall so declare to the
meeting and such nomination or other proposal shall be disregarded.
ARTICLE III
DIRECTORS
Section 3.1 POWERS. Subject to any limitations of the Articles of
Incorporation and of these Bylaws and of the General Corporation Law of
California requiring shareholder authorization or approval for a particular
action, the business and affairs of the corporation shall be managed and all
corporate powers shall be exercised by or under the direction of the Board of
Directors. The Board of Directors may delegate the management of the day-to-day
operation of the business of the corporation to a management company or other
person, provided that the business and affairs of the corporation shall be
managed and all corporate powers shall be exercised, under the ultimate
direction of the Board of Directors.
Section 3.2 COMMITTEES. By resolution adopted by a majority of the
authorized number of directors, the Board of Directors may designate an
executive and other committees, each consisting of two or more directors, to
serve at the pleasure of the Board of Directors. The provisions of this
Article apply to committees of the Board of Directors and action by such
committees, with such changes in the language of those provisions as are
necessary to substitute the committee and its members for the Board of Directors
and its members. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent member at any
meeting of the committee. The appointment of members or alternate members of a
committee shall be made by the vote of a majority of the authorized number of
directors. Unless the Board of Directors shall otherwise prescribe the manner
of proceedings of any such committee, meetings of such committee may be
regularly scheduled in advance and may be called at any time by any two members
thereof; otherwise, the provisions of these Bylaws with respect to notice and
conduct of meetings of the Board of Directors shall govern. Any such committee,
to the extent provided in a resolution of the Board of Directors, shall have all
of the authority of the Board of Directors, except with respect to:
(i) the approval of any action for which the General
Corporation Law of California or the Articles of Incorporation also require
shareholder approval;
(ii) the filling of vacancies on the Board of Directors or
in any committee;
(iii) the fixing of compensation of the directors for serving
on the Board of Directors or on any committee;
(iv) the adoption, amendment or repeal of these Bylaws;
(v) the amendment or repeal of any resolution of the Board
of Directors which by its express terms is not so amendable or repealable;
(vi) any distribution to the shareholders, except at a rate
or in a periodic amount or within a price range determined by the Board of
Directors; and
(vii) the appointment of other committees of the Board of
Directors or the members thereof.
Section 3.3 NUMBER OF DIRECTORS.
(a) The authorized number of directors shall be not less
than five nor more than nine. The exact number of directors shall be fixed from
time to time, within the limits specified in this subsection, by an amendment of
subsection (b) of this section adopted by the Board of Directors.
6
<PAGE>
(b) The exact number of directors shall be five until changed as
provided in subsection (a) of this section.
(c) The maximum or minimum authorized number of directors may
only be changed by an amendment of this section approved by the vote or written
consent of a majority of the outstanding shares entitled to vote; provided,
however, that an amendment reducing the minimum number to a number less than
five shall not be adopted if the votes cast against its adoption at a meeting
(or the shares not consenting in the case of action by written consent) exceed
16-2/3% of such outstanding shares; and provided further, that in no case shall
the stated maximum authorized number of directors exceed two times the stated
minimum number of authorized directors minus one.
Section 3.4 ELECTION AND TERM OF OFFICE.
(a) Except as expressly set forth in this Section 3.4, (i) the
directors shall be elected at each annual meeting of shareholders but, if any
such annual meeting is not held or the directors are not elected thereat, the
directors may be elected at any special meeting of shareholders held for that
purpose and (ii) each director, including a director elected to fill a vacancy,
shall hold office until the next annual meeting of the shareholders and until
his successor is elected and qualified.
(b) Upon the effectiveness of Article FOUR of the corporation's
Restated Articles of Incorporation, the Board of Directors shall be classified
into three classes as nearly equal in numbers as the then total number of
directors constituting the entire Board of Directors permits, the members of
each class to serve for a term of three years. If the number of directors is
not divisible by three, the first extra director shall be assigned one to the
first class of directors and any additional director shall be assigned to the
second class of directors.
(c) Upon the effectiveness of Article FOUR of the Restated
Articles of Incorporation, the election of directors by the shareholders shall
not be by cumulative voting. At each election of directors, each shareholder
entitled to vote may vote all the shares held by that shareholder for each of
several nominees for director up to the number of directors to be elected. The
shareholder may not cast more votes for any single nominee than the number of
shares held by that shareholder.
(d) At the first annual meeting of shareholders held after the
effectiveness of Article FOUR of the Restated Articles of Incorporation,
directors of the first class shall be elected to hold office for a term expiring
at the next succeeding annual meeting of shareholders, directors of the second
class shall be elected to hold office for a term expiring at the second
succeeding annual meeting of shareholders and directors of the third class shall
be elected to hold office for a term expiring at the third succeeding annual
meeting of shareholders. At each subsequent annual meeting of shareholders, the
successors to the class of directors whose term shall then expire shall be
elected to hold office for a term expiring at the third succeeding annual
meeting of shareholders.
(e) If at any time the corporation ceases to be a listed
corporation as defined in Section 301.5 of the California Law, at each
succeeding annual meeting of shareholders where the existing term of a class of
directors is expiring, the directors of each such class shall then be elected
for a term expiring in one year until all directors are elected for one year
terms. The election of all directors at the annul meeting of shareholders for a
term of one year shall continue until the corporation once again qualifies as
listed corporation within the meaning of Section 301.5 of the California Law,
and the foregoing provisions of Article FOUR of the Restated Articles of
Incorporation can be reinstated.
(f) Any action by the shareholders with respect to any amendment
to or the elimination of all or any part of this Article III, Section 3.4, shall
require approval by the holders of at least two-thirds of the outstanding shares
of the corporation.
Section 3.5 VACANCIES.
(a) WHEN A VACANCY EXISTS. A vacancy in the Board of Directors
exists whenever any authorized position of director is not then filled by a duly
elected director, whether caused by death, resignation, removal, change in the
authorized number of directors or otherwise.
7
<PAGE>
(b) FILLING OF VACANCIES BY DIRECTORS. Vacancies in the Board
of Directors, except for a vacancy created by the removal of a director (see
Section 3.5(c)) may be filled by a majority of the remaining directors, though
less than a quorum, or by a sole remaining director, and each director so
elected shall hold office until his successor is elected at an annual or a
special meeting of shareholders. If the Board of Directors accepts the
resignation of a director tendered to take effect at a future time, the Board of
Directors (or the shareholders) may elect a successor to take office when the
resignation becomes effective.
(c) FILLING OF VACANCIES BY SHAREHOLDERS. The shareholders may
elect a director or directors at any time to fill any vacancy or vacancies not
filled by the directors. Except for an election to fill a vacancy created by
the removal of a director, any such election by written consent shall require
the consent of holders of a majority of the outstanding shares entitled to vote
for the election of directors. A vacancy in the Board of Directors created by
the removal of a director may only be filled by the vote of a majority of the
shares entitled to vote for the election of directors represented at a duly held
meeting at which a quorum is present, or by the unanimous written consent of the
holders of all of the outstanding shares entitled to vote for the election of
directors.
(d) REMOVAL FOR CAUSE. The Board of Directors may declare
vacant the office of a director who has been declared of unsound mind by an
order of court or convicted of a felony.
(e) REMOVAL WITHOUT CAUSE. Any or all of the directors may be
removed without cause if such removal is approved by a majority of the
outstanding shares entitled to vote; provided, however, that no director may be
removed (unless the entire Board of Directors is removed) whenever the votes
cast against removal, or not consenting in writing to such removal, would be
sufficient to elect such director if voted cumulatively at an election at which
the same total number of votes were cast (or, if such action is taken by written
consent, all shares entitled to vote were voted) and the entire number of
directors authorized at the time of his most recent election were then being
elected.
(f) RESIGNATION. Any director may resign effective upon giving
written notice to the Chairman of the Board, the President, the Secretary or the
Board of Directors of the corporation, unless the notice specifies a later time
for the effectiveness of such resignation. If the resignation is effective at a
future time, a successor may be elected to take office when the resignation
becomes effective.
(g) WHEN REDUCTION IN NUMBER EFFECTIVE. No reduction of the
authorized number of directors shall have the effect of removing any director
prior to the expiration of his term of office.
Section 3.6 PLACE OF MEETING. Regular meetings of the Board of
Directors shall be held at any place within or without the State of California
which has been designated from time to time by resolution of the Board of
Directors. In the absence of such designation, regular meetings shall be held
at the principal executive office of the corporation. Special meetings of the
Board of Directors may be held either at a place so designated or at the
principal executive office.
Section 3.7 ANNUAL MEETING. Immediately following each annual
meeting of shareholders the Board of Directors shall hold a regular meeting at
the place of said annual meeting or at such other place as shall be fixed by the
Board of Directors, for the purpose of organization, election of officers, and
the transaction of other business. Call and notice of such meetings are hereby
dispensed with.
Section 3.8 OTHER REGULAR MEETINGS. Other regular meetings of the
Board of Directors shall be held at such day and hour as shall be fixed from
time to time by the Board of Directors by resolution or in the Bylaws. If such
day falls upon a legal holiday, then said meeting shall be held at the same time
on the next day thereafter ensuing which is a full business day. Notice of all
such regular meetings of the Board of Directors is hereby dispensed with.
Section 3.9 SPECIAL MEETINGS. Special meetings of the Board of
Directors for any purpose or purposes shall be called at any time by the
Chairman of the Board, the President, any Vice President, the Secretary or by
any two directors. Written notice of the time and place of special meetings
shall be delivered personally to each director or communicated to each director
by telephone, or by telegraph or mail, charges prepaid, addressed to him at his
address as it is shown upon the records of the corporation or, if it is not so
shown on such records or if not readily
8
<PAGE>
ascertainable, at the place at which the meetings of the directors are
regularly held. In case such notice is mailed or telegraphed, it shall be
deposited in the United States mail or delivered to the telegraph company in
the place in which the principal executive offices of the corporation are
located at least four (4) days prior to the time of the holding of the
meeting. In case such notice is delivered, personally or by telephone, as
above provided, it shall be so delivered at least forty-eight (48) hours
prior to the time of the holding of the meeting. Such mailing, telegraphing
or delivery, personally or by telephone, as above provided, shall be due,
legal and personal notice to such director. Any notice shall state the date,
place and hour of the meeting.
Section 3.10 ACTION WITHOUT MEETING. Any action by the Board of
Directors may be taken without a meeting if all members of the Board of
Directors shall individually or collectively consent in writing to such action.
Such written consent or consents shall be filed with the minutes of the
proceedings of the Board of Directors and shall have the same force and effect
as a unanimous vote of such directors.
Section 3.11 ACTION AT A MEETING; QUORUM AND REQUIRED VOTE.
Presence of a majority of the authorized number of directors at a meeting of the
Board of Directors constitutes a quorum for the transaction of business.
Members of the Board of Directors may participate in a meeting through use of
conference telephone or similar communications equipment, so long as all members
participating in such meeting can hear one another. Participation in a meeting
as permitted in the preceding sentence constitutes presence in person at such
meeting. Every act or decision done or made by a majority of the directors
present at a meeting duly held at which a quorum is present shall be regarded as
the act of the Board of Directors, unless a greater number, or the same number
after disqualifying one or more directors from voting, is required by law, by
the Articles of Incorporation, or by these Bylaws. A meeting at which a quorum
is initially present may continue to transact business notwithstanding the
withdrawal of a director, provided that any action taken is approved by at least
a majority of the required quorum for such meeting.
Section 3.12 VALIDATION OF DEFECTIVELY CALLED OR NOTICED MEETINGS.
The transactions of any meeting of the Board of Directors, however called and
noticed or wherever held, shall be as valid as though had at a meeting duly held
after regular call and notice, if a quorum is present and if, either before or
after the meeting, each of the directors who was not present signs a written
waiver of notice or a consent to holding such meeting or an approval of the
minutes thereof. All such waivers, consents or approvals shall be filed with
the corporate records or made a part of the minutes of the meeting.
Section 3.13 WAIVER OF NOTICE BY ATTENDANCE. Attendance of a
director at any meeting shall constitute a waiver of notice of such meeting,
unless a director attends for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called, noticed,
or convened.
Section 3.14 ADJOURNMENT. A majority of the directors present,
whether or not a quorum is present, may adjourn any meeting to another time and
place. If the meeting is adjourned for more than 24 hours, written notice of
any adjournment to another time or place shall be given prior to the time of the
adjourned meeting to the directors who were not present at the time of the
adjournment.
Section 3.15 FEES AND COMPENSATION. Directors and members of
committees may receive such compensation, if any, for their services, and such
reimbursement for expenses, as may be fixed or determined by resolution of the
Board of Directors.
Section 3.16 INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND
OTHER AGENTS.
(a) The corporation shall, to the maximum extent and in the
manner permitted by the California Corporations Code ("Code"), indemnify each of
its directors against expenses (as defined in Section 317(a) of the Code),
judgments, fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding (as defined in Section 317(a) of the
Code), arising by reason of the fact that such person is or was an agent of the
corporation. For purposes of this Section 3.16, a "director" of the corporation
includes any person (i) who is or was a director of the corporation, (ii) who is
or was serving at the request of the corporation as a director of another
9
<PAGE>
corporation, partnership, joint venture, trust or other enterprise, or (iii) who
was a director of a corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such predecessor
corporation.
(b) The corporation shall have the power, to the extent and in
the manner permitted by the Code, to indemnify each of its officers, employees
and agents against expenses (as defined in Section 317(a) of the Code),
judgments, fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding (as defined in Section 317(a) of the
Code), arising by reason of the fact that such person is or was an officer,
employee or agent of the corporation. For purposes of this Section 3.16, an
"officer", "employee" or "agent" of the corporation includes any person (i) who
is or was an officer, employee or agent of the corporation, (ii) who is or was
serving at the request of the corporation as an officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, or
(iii) who was an officer, employee or agent of the corporation which was a
predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation.
(c) Expenses incurred in defending any civil or criminal action
or proceeding for which indemnification is required pursuant to Section 3.16(a)
shall be paid by the corporation in advance of the final disposition of such
action or proceeding upon receipt of an undertaking by or on behalf of the
indemnified party to repay such amount if it shall ultimately be determined that
the indemnified party is not entitled to be indemnified as authorized in this
Section 3.16. Expenses incurred in defending any civil or criminal action or
proceeding for which indemnification is permitted pursuant to Section 3.16(b)
may be paid by the corporation in advance of the final disposition of such
action or proceeding upon receipt of an undertaking by or on behalf of the
indemnified party to repay such amount if it shall ultimately be determined that
the indemnified party is not entitled to be indemnified as authorized in this
Section 3.16.
(d) The indemnification provided by this Section 3.16 shall not
be deemed exclusive of any other rights to which those seeking indemnification
may be entitled under any bylaw, agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in an official capacity
and as to action in another capacity while holding such office, to the extent
that such additional rights to indemnification are authorized in the Articles of
Incorporation.
(e) The corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was an agent of the
corporation against any liability asserted against or incurred by such person in
such capacity or arising out of such person's status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of this Section 3.16.
(f) No indemnification or advance shall be made under this
Section 3.16, except where such indemnification or advance is mandated by law or
the order, judgment or decree of any court of competent jurisdiction, in any
circumstance where it appears:
(1) That it would be inconsistent with a provision of the
Articles of Incorporation, these Bylaws, a resolution of the shareholders or an
agreement in effect at the time of the accrual of the alleged cause of the
action asserted in the proceeding in which the expenses were incurred or other
amounts were paid, which prohibits or otherwise limits indemnification; or
(2) That it would be inconsistent with any condition
expressly imposed by a court in approving a settlement.
Section 3.17 TRANSACTIONS BETWEEN CORPORATIONS AND DIRECTORS.
(a) No contract or other transaction between the corporation and
one or more of its directors, or between the corporation and any corporation,
firm or association in which one or more of its directors has a material
financial interest, is either void or voidable because such director or
directors or such other corporation, firm or association are parties or because
such director or directors are present at the meeting of the Board of Directors
or a committee thereof which authorizes, approves or ratifies the contract or
transaction, if:
10
<PAGE>
(1) the material facts as to the transaction and as to such
director's interest are fully disclosed or known to the shareholders and such
contract or transaction is approved in good faith by the affirmative vote of a
majority of the shares entitled to vote represented at a duly held meeting at
which a quorum is present or by the written consent of shareholders, with the
shares owned by the interested director or directors not being entitled to vote
thereon;
(2) the material facts as to the transaction and as to such
director's interest are fully disclosed or known to the Board of Directors or
committee, and the Board of Directors or committee authorizes, approves or
ratifies the contract or transaction in good faith by a vote sufficient without
counting the vote of the interested director or directors and the contract or
transaction is just and reasonable as to the corporation at the time it is
authorized, approved or ratified; or
(3) as to contracts or transactions not approved as
provided in paragraph (a) or (b) of this subdivision, the person asserting the
validity of the contract or transaction sustains the burden of proving that the
contract or transaction was just and reasonable as to the corporation at the
time it was authorized, approved or ratified.
(b) No contract or other transaction between a corporation and
any corporation or association of which one or more of its directors are
directors is either void or voidable because such director or directors are
present at the meeting of the Board of Directors or a committee thereof which
authorizes, approves or ratifies the contract or transaction, if:
(1) The material facts as to the transaction and as to such
director's other directorship are fully disclosed or known to the Board of
Directors or committee, and the Board of Directors or committee authorizes,
approves or ratifies the contract or transaction in good faith by a vote
sufficient without counting the vote of the common director or directors or the
contract or transaction is approved by the shareholders (Section 153) of the
General Corporation Law in good faith; or
(2) As to contracts or other transactions not approved as
provided in paragraph (1) of this subdivision, the contract or transaction is
just and reasonable as to the corporation at the time it is authorized, approved
or ratified.
This subsection (b) does not apply to contracts or transactions
covered by subsection (a).
(c) A mere common directorship does not constitute a material
financial interest within the meaning of subsection (a) of this Section 3.17. A
director is not interested within the meaning of subsection (a) of this
Section 3.17 in a resolution fixing the compensation of another director as a
director, officer or employee of the corporation, notwithstanding the fact that
the first director is also receiving compensation from the corporation.
(d) Interested or common directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or a committee
thereof which authorizes, approves or ratifies a contract or transaction.
ARTICLE IV
OFFICERS
Section 4.1 OFFICERS. The officers of the corporation shall be a
President, a Secretary and a Chief Financial Officer. The corporation may also
have, at the discretion of the Board of Directors, a Chairman of the Board, one
or more Vice Presidents, one or more Assistant Secretaries, one or more
Assistant Treasurers and such other officers as may be appointed in accordance
with the provisions of Section 4.3 of this article. Any number of offices may
be held by the same person.
11
<PAGE>
Section 4.2 ELECTION. The officers of the corporation, except such
officers as may be appointed in accordance with the provisions of Section 4.3 or
Section 4.5 of this article, shall be chosen annually by the Board of Directors,
and each shall hold his office until he shall resign or shall be removed or
otherwise disqualified to serve, or his successor shall be elected and
qualified.
Section 4.3 SUBORDINATE OFFICERS, ETC. The Board of Directors may
appoint, and may empower the Chairman of the Board, if there be such an officer,
or the President, to appoint such other officers as the business of the
corporation may require, each of whom shall hold office for such period, have
such authority and perform such duties as are provided in the Bylaws or as the
Board of Directors may from time to time determine. Any appointment of an
officer shall be evidenced by a written instrument filed with the secretary of
the corporation and maintained with the corporate records.
Section 4.4 REMOVAL AND RESIGNATION. Subject, in each case, to the
rights, if any, of an officer under any contract of employment, any officer may
be removed, either with or without cause, by the Board of Directors at any
regular or special meeting thereof, or, except in case of an officer chosen by
the Board of Directors, by any officer upon whom such power of removal may be
conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to the
Board of Directors or to the President or to the Secretary of the corporation,
without prejudice, however, to the rights, if any, of the corporation under any
contract to which such officer is a party. Any such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 4.5 VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in these Bylaws.
Section 4.6 CHAIRMAN OF THE BOARD. The Chairman of the Board, if
there shall be such an officer, shall be the chief executive officer of the
corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the officers of the corporation.
He shall, if present, preside at all meetings of the Board of Directors and
exercise and perform such other powers and duties as may be from time to time
assigned to him by the Board of Directors or prescribed by these Bylaws.
Section 4.7 PRESIDENT. Subject to such supervisory powers, if any,
as may be given by the Board of Directors to the Chairman of the Board, if there
be such an officer, the President shall be the chief operating officer of the
corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the business of the corporation.
He shall preside at all meetings of the shareholders and, in the absence of the
Chairman of the Board, or if there be none, at all meetings of the Board of
Directors. He shall have the general powers and duties of management usually
vested in the office of the President of a corporation, and shall have such
other powers and duties as may be prescribed by the Board of Directors or the
Bylaws.
Section 4.8 VICE PRESIDENT. In the absence or disability of the
President, the Vice Presidents, if any, in order of their rank as fixed by the
Board of Directors or, if not ranked, the Vice President designated by the Board
of Directors, shall perform all the duties of the President, and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
President. The Vice Presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by the
Board of Directors or these Bylaws, or as the Chief Executive Officer may from
time to time delegate.
Section 4.9 SECRETARY.
(a) CORPORATE RECORDS. The Secretary shall keep or cause to be
kept, at the principal executive office and such other place as the Board of
Directors may direct, the seal of the corporation, copies of the Articles of
Incorporation and Bylaws of the corporation, a book of minutes of actions taken
at all meetings of shareholders, the Board of Directors and committees of the
Board of Directors with the time and place of holding, whether
12
<PAGE>
regular or special, and, if special, how authorized, the notice given, the
names of those present at directors' meetings, the number of shares present
or represented at shareholders' meetings, and the proceedings thereof.
(b) SHARE REGISTER. The Secretary shall keep, or cause to be
kept, at the principal executive office or at the office of the corporation's
transfer agent, a share register, or a duplicate share register, showing the
names of the shareholders and their addresses, the number and classes of shares
held by each, the number and date of certificates issued for the same, and the
number and date of cancellation of every certificate surrendered for
cancellation.
(c) OTHER DUTIES. The Secretary shall give, or cause to be
given, notice of all the meetings of the shareholders and of the Board of
Directors required by the Bylaws or by law to be given, and he shall keep the
seal of the corporation in safe custody, and shall have such other powers and
perform such other duties as may be prescribed by the Board of Directors or by
the Bylaws.
Section 4.10 CHIEF FINANCIAL OFFICER.
(a) BOOKS OF ACCOUNT. The Chief Financial Officer of the
corporation shall keep and maintain, or cause to be kept and maintained,
adequate and correct accounts of the properties and business transactions of the
corporation, and shall send or cause to be sent to the shareholders of the
corporation such financial statements and reports as are by law or these Bylaws
required to be sent to them. The books of account shall at all reasonable times
be open to inspection by any director.
(b) OTHER DUTIES. The Chief Financial Officer shall deposit all
monies and other valuables in the name and to the credit of the corporation with
such depositaries as may be designated by the Board of Directors. The Chief
Financial Officer shall disburse the funds of the corporation as may be ordered
by the Board of Directors, shall render to the President and directors, whenever
they request it, an account of all of his transactions as chief financial
officer and of the financial condition of the corporation, and shall have such
other powers and perform such other duties as may be prescribed by the Board of
Directors or the Bylaws.
ARTICLE V
GENERAL CORPORATE MATTERS
Section 5.1 RECORD DATE.
(a) WHEN FIXED BY BOARD OF DIRECTORS. The Board of Directors
may fix a time in the future as a record date for the determination of the
shareholders entitled to notice of and to vote at any meeting of shareholders or
entitled to give consent to corporate action in writing without a meeting, to
receive any report, to receive any dividend or distribution, or any allotment of
rights, or to exercise rights in respect to any change, conversion, or exchange
of shares. The record date so fixed shall be not more than sixty (60) days nor
less than ten (10) days prior to the date of any meeting, nor more than
sixty (60) days prior to any other event for the purposes of which it is fixed.
When a record date is so fixed, only shareholders of record at the close of
business on that date are entitled to notice of and to vote at any such meeting,
to give consent without a meeting, to receive any report, to receive a dividend,
distribution, or allotment of rights, or to exercise the rights, as the case may
be, notwithstanding any transfer of any shares on the books of the corporation
after the record date, except as otherwise provided in the Articles of
Incorporation or these Bylaws.
(b) WHEN NOT FIXED BY BOARD OF DIRECTORS. In the event no
record date is fixed by the Board of Directors:
(1) The record date for determining the shareholders
entitled to notice of or to vote at a meeting of shareholders shall be at the
close of business on the business day next preceding the day on which notice is
given or, if notice is waived, at the close of business on the business day next
preceding the day on which the meeting is held.
13
<PAGE>
(2) The record date for determining shareholders entitled
to give consent to corporate action in writing without a meeting, when no prior
action by the Board of Directors has been taken, shall be the day on which the
first written consent is given.
(3) The record date for determining shareholders for any
other purpose shall be at the close of business on the date on which the Board
of Directors adopts the resolution relating thereto, or the sixtieth day prior
to the date of such other action, whichever is later.
Section 5.2 INSPECTION OF CORPORATE RECORDS.
(a) BY SHAREHOLDERS. The accounting books and records, the
record of shareholders, and minutes of proceedings of the shareholders and the
Board of Directors and committees of the Board of Directors of this corporation
and any subsidiary of this corporation shall be open to inspection upon the
written demand on the corporation of any shareholder or holder of a voting trust
certificate at any reasonable time during usual business hours, for a purpose
reasonably related to such holder's interests as a shareholder or as the holder
of such voting trust certificate. Such inspection by a shareholder or holder of
a voting trust certificate may be made in person or by agent or attorney, and
the right of inspection includes the right to copy and make extracts.
(b) BY DIRECTORS. Every director shall have the absolute right
at any reasonable time to inspect and copy all books, records and documents of
every kind and to inspect the physical properties of the corporation. Such
inspection by a director may be made in person or by agent or attorney and the
right of inspection includes the right to copy and make extracts.
Section 5.3 MAINTENANCE AND INSPECTION OF BYLAWS. The corporation
shall keep at its principal executive office, or if its principal executive
office is not in the State of California, at its principal business office in
this state, the original or a copy of the Bylaws as amended to date, which shall
be open to inspection by the shareholders at all reasonable times during office
hours. If the principal executive office of the corporation is outside the
State of California and the corporation has no principal business office in this
state, the Secretary shall, upon the written request of any shareholder, furnish
to that shareholder a copy of the Bylaws as amended to date.
Section 5.4 ANNUAL AND OTHER REPORTS. The Board of Directors of the
corporation shall cause an annual report to be sent to the shareholders at least
fifteen (15) days prior to the annual meeting of shareholders but not later than
one hundred twenty (120) days after the close of the fiscal year in accordance
with the provisions of the General Corporation Law.
Section 5.5 CHECKS, DRAFTS, ETC. All checks, drafts or other orders
for payment of money, notes or other evidences of indebtedness, issued in the
name of or payable to the corporation, shall be signed or endorsed by such
person or persons and in such manner as, from time to time, shall be determined
by resolution of the Board of Directors.
Section 5.6 CONTRACTS, ETC., HOW EXECUTED. The Board of Directors,
except as in the Bylaws otherwise provided, may authorize any officer or
officers, agent or agents, to enter into any contract or execute any instrument
in the name of and on behalf of the corporation, and such authority may be
general or confined to specific instances; and, unless so authorized or ratified
by the Board of Directors or within the agency power of an officer, no officer,
agent or employee shall have any power or authority to bind the corporation by
any contract or engagement or to pledge its credit or to render it liable for
any purpose or to any amount.
Section 5.7 CERTIFICATE FOR SHARES. Every holder of shares in the
corporation shall be entitled to have a certificate signed in the name of the
corporation by the Chairman of the Board or the President or a Vice President
and by the Chief Financial Officer or an Assistant Treasurer or the Secretary or
an Assistant Secretary, certifying the number of shares and the class or series
of shares owned by the shareholder. Any of the signatures on the certificate
may be a facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate
14
<PAGE>
is issued, it may be issued by the corporation with the same effect as if
such person were an officer, transfer agent or registrar at the date of issue.
Section 5.8 LOST, STOLEN OR DESTROYED CERTIFICATES. No new
certificates for shares shall be issued to replace an old certificate unless the
latter is surrendered and canceled at the same time; provided, however, that the
Board of Directors or the President and any Vice President may, however, in case
any certificate for shares is lost, stolen, mutilated or destroyed, authorize
the issuance of a new certificate in lieu thereof, upon such terms and
conditions, including reasonable indemnification of the corporation, as the
Board of Directors or the President or any Vice President shall determine. In
the event of the issuance of a new certificate, the rights and liabilities of
the corporation, and of the holders of the old and new certificates, shall be
governed by the relevant provisions of the California Commercial Code.
Section 5.9 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The
Chairman of the Board, the President or any Vice President, or any other person
authorized by resolution of the Board of Directors or by any of the foregoing
designated officers, are authorized to vote, represent and exercise on behalf of
this corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of this corporation. The
authority herein granted to said officers to vote or represent on behalf of this
corporation any and all shares held by this corporation in any other corporation
or corporations may be exercised either by such officers in person or by any
other person authorized so to do by proxy or power of attorney duly executed by
these officers.
Section 5.10 CONSTRUCTION AND DEFINITIONS. Unless the context
otherwise requires, the general provisions, rules of construction and
definitions contained in the General Corporation Law of California shall govern
the construction of these Bylaws. Without limiting the generality of the
foregoing, the masculine gender includes the feminine and neuter, the singular
number includes the plural and the plural number includes the singular, and the
term "person" includes a corporation as well as a natural person.
ARTICLE VI
AMENDMENTS
Section 6.1 POWER OF SHAREHOLDERS. New bylaws may be adopted or
these Bylaws may be amended or repealed by the affirmative vote or written
consent of at least two-thirds of the outstanding shares entitled to vote
thereon, except as otherwise provided by law or by the Restated Articles of
Incorporation.
Section 6.2 POWER OF DIRECTORS. Subject to the right of shareholders
as provided in Section 6.1 of this Article VI to adopt, amend or repeal bylaws,
bylaws may be adopted, amended or repealed by the Board of Directors; provided,
however, that any alteration, amendment, supplement or repeal of the bylaws
contained in Sections 2.3, 2.8, 2.11, 3.3, 6.1 or 6.2 shall require the
affirmative vote of at least two-thirds of the outstanding shares of the capital
stock of the corporation entitled to vote (including the affirmative vote of at
least two-thirds of the outstanding shares of any class or series of capital
stock of the corporation entitled to vote separately).
15
<PAGE>
EXHIBIT 5.1
OPINION OF MANATT, PHELPS & PHILLIP, LLP
<PAGE>
EXHIBIT 5.1
MANATT
PHELPS
PHILLIPS
- ----------
ATTORNEYS AT LAW
MARCH 21, 1997
Keystone Automotive Industries, Inc.
700 East Bonita Avenue
Pomona, California 91767
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
At your request, we have examined the Registration Statement on Form
S-8 (the "Registration Statement") to be filed by Keystone Automotive
Industries, Inc., a California corporation (the "Company"), with the Securities
and Exchange Commission (the "SEC") in connection with the registration under
the Securities Act of 1933, as amended (the "Securities Act"), of 730,000 shares
of the Company's common stock (the "Common Stock"), that may be issued in the
aggregate upon the exercise of awards granted under the Company's 1996 Employee
Stock Incentive Plan (the "Plan").
In rendering this opinion, we have examined only the following
documents and records:
1. The Restated Articles of Incorporation of the Company;
2. The Amended and Restated Bylaws of the Company;
3. The Plan;
4. The forms of Incentive Stock Option Agreement, Non-Qualified
Stock Option Agreement and Restricted Stock Agreement (the
"Agreements") to be used in connection with the Plan;
5. Records of proceedings of the Company's Board of Directors and
shareholders pertaining to the adoption of the Plan and the
Agreements; and
6. The Registration Statement.
With respect to the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity to originals of all documents submitted to us as
certified or reproduced copies. We also have obtained from the officers of the
Company certificates as to such factual matters as we consider necessary for the
purpose of this opinion, and insofar as this opinion is based on such matters of
fact, we have relied on such certificates. While we have no reason to believe
that the officers executing such certificates did not have personal knowledge of
the matters contained therein, or did not accurately set forth such knowledge in
such certificates, we did not independently verify the matters set forth in such
certificates.
Based solely upon the foregoing and assuming, without further
inquiry, that (i) all awards granted under the Plan to date have been, and
all awards to be granted under the Plan will be, duly and validly granted in
accordance with the terms of the Plan, (ii) the consideration for the shares
of Common Stock to be issued pursuant to the exercise of such awards will be
received prior to the issuance thereof, (iii) the shares of Common Stock to
be issued pursuant to the exercise of such awards will be issued in
accordance with the terms of the Plan and the applicable Agreements, (iv) the
Registration Statement will become effective under the Securities Act prior
to the issuance of any shares of Common
<PAGE>
MANATT, PHELPS & PHILLIPS, LLP
Keystone Automotive Industries, Inc.
March 21, 1997
Page 2
Stock under the Plan and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or be pending before the SEC and (v) the
prospectus attached as Exhibit 99.5 to the Registration Statement will be
updated and delivered to participants in the Plan as required by the Securities
Act and the rules and regulations promulgated by the SEC thereunder, upon which
assumptions the following opinion is expressly conditioned, it is the opinion
of the undersigned that the 730,000 shares of Common Stock issuable by the
Company upon the exercise of awards granted pursuant to the Plan will be, when
issued and delivered against payment therefor in accordance with the Plan, the
applicable Agreements and the Registration Statement, duly authorized, validly
issued, fully paid and non-assessable.
This opinion is limited to the current laws of the State of California
and the Securities Act and the rules and regulations promulgated by the SEC
thereunder, to present judicial interpretations thereof and to facts as they
presently exist. In rendering this opinion, we have no obligation to revise or
supplement it should the current laws of the State of California or the
Securities Act or such rules and regulations be changed by legislative action,
judicial decision or otherwise.
This opinion is issued to you solely for use in connection with the
Registration Statement and is not to be quoted or otherwise referred to in any
financial statements of the Company or related document, nor is it to be filed
with or furnished to any government agency or other person, without the prior
written consent of the undersigned in each instance.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Respectfully submitted,
/s/Manatt, Phelps & Phillips, LLP
Manatt, Phelps & Phillips, LLP
2
<PAGE>
EXHIBIT 23.1
CONSENT OF MANATT, PHELPS & PHILLIPS, LLP
(SEE EXHIBIT 5.1)
<PAGE>
EXHIBIT 23.2
Consent of Independent Auditors
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8 333-0000) pertaining to the 1996 Employee Stock Incentive Plan of
Keystone Automotive Industries, Inc. of our report dated May 24, 1996 with
respect to the consolidated financial statements and schedule of Keystone
Automotive Industries, Inc. included in the Registration Statement on Form
S-1 (File No. 333-3994) for the year ended March 29, 1996 filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Los Angeles, California
March 21, 1997
<PAGE>
EXHIBIT 99.1
1996 Employee Stock Incentive Plan
<PAGE>
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
1996 EMPLOYEE STOCK INCENTIVE PLAN
Adopted as of April 17, 1996
Section 1. PURPOSE OF PLAN
The purpose of this 1996 Employee Stock Incentive Plan ("Plan") of
Keystone Automotive Industries, Inc., a California corporation (the "Company"),
is to enable the Company to attract, retain and motivate its employees and
independent contractors by providing for or increasing the proprietary interests
of such employees and independent contractors in the Company, and to enable the
Company to attract, retain and motivate its nonemployee directors and further
align their interest with those of the shareholders of the Company by providing
for or increasing the proprietary interest of such directors in the Company.
Section 2. PERSONS ELIGIBLE UNDER PLAN
Each of the following persons (each, a "Participant") shall be
eligible to be considered for the grant of Awards (as hereinafter defined)
hereunder: (1) any employee of the Company or any of its subsidiaries,
including any director who is also such an employee, and (2) any independent
contractor of the Company or any of its subsidiaries. Any director of the
Company who is not a Participant (a "Nonemployee Director") shall automatically
receive Nonemployee Director Options (as hereinafter defined) pursuant to
Section 4 hereof, but shall not otherwise participate in this Plan.
Section 3. AWARDS
(a) The Committee (as hereinafter defined), on behalf of the Company,
is authorized under this Plan to enter into any type of arrangement with a
Participant that is not inconsistent with the provisions of this Plan and that,
by its terms, involves or might involve the issuance of (i) shares of common
stock of the Company ("Common Shares") or (ii) a Derivative Security (as such
term is defined in Rule 16a-1 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), as such rule may be amended from time to
time) with an exercise or conversion privilege at a price related to the Common
Shares or with a value derived from the value of the Common Shares. The
entering into of any such arrangement is referred to herein as the "grant" of an
"Award."
(b) Awards are not restricted to any specified form or structure and
may include, without limitation, sales or bonuses of stock, restricted stock,
stock options, reload stock options, stock purchase warrants, other rights to
acquire stock, securities convertible into or redeemable for stock, stock
appreciation rights, phantom stock, dividend equivalents, performance units or
performance shares, and an Award may consist of one such security or benefit, or
two or more of them in tandem or in the alternative.
(c) Awards may be issued, and Common Shares may be issued pursuant to
an Award, for any lawful consideration as determined by the Committee,
including, without limitation, services rendered by the recipient of such Award.
(d) Subject to the provisions of this Plan, the Committee, in its
sole and absolute discretion, shall determine all of the terms and conditions of
each Award granted under this Plan, which terms and conditions may include,
among other things:
(i) a provision permitting the recipient of such Award,
including any recipient who is a director or officer of the Company, to pay
the purchase price of the Common Shares or other property issuable pursuant
to such Award, or such recipient's tax withholding obligation with respect
to such issuance, in whole or in part, by any one or more of the following:
(A) the delivery of cash;
(B) the delivery of other property deemed acceptable by the
Committee;
1
<PAGE>
(C) the delivery of previously owned shares of capital stock of
the Company (including "pyramiding") or other property; or
(D) a reduction in the amount of Common Shares or other property
otherwise issuable pursuant to such Award.
(ii) a provision conditioning or accelerating the receipt of
benefits pursuant to such Award, either automatically or in the discretion
of the Committee, upon the occurrence of specified events, including,
without limitation, a change of control of the Company (as defined by the
Committee), an acquisition of a specified percentage of the voting power of
the Company, the dissolution or liquidation of the Company, a sale of
substantially all of the property and assets of the Company or an event of
the type described in Section 8 hereof; or
(iii) a provision required in order for such Award to qualify as
an incentive stock option under Section 422 of the Internal Revenue Code
(an "Incentive Stock Option"); PROVIDED, HOWEVER, that no Award issued to
any independent contractor or any Nonemployee Director may qualify as an
Incentive Stock Option.
Section 4. NONEMPLOYEE DIRECTOR OPTIONS
(a) On the consummation of the initial public offering of Common
Shares, each Nonemployee Director shall be automatically granted an option (an
"IPO Nonemployee Director Option") to purchase 10,000 Common Shares. On the
first business day following the date of the annual meeting of shareholders of
the Company, or any adjournment thereof, at which directors are elected, any
person elected to serve as a Nonemployee Director who has not previously served
as a Nonemployee Director of the Company shall be automatically granted an
option (an "Initial Nonemployee Director Option") to purchase 10,000 Common
Shares. If a person who has not previously served as a Nonemployee Director
shall become a Nonemployee Director on any day after such date, and prior to the
annual meeting of shareholders of the Company immediately following such date,
and if any Initial Nonemployee Director Options may be granted under this plan
on such day, such person shall automatically be granted an Initial Nonemployee
Director Option to purchase 10,000 Common Shares. The date on which an IPO
Nonemployee Director Option or an Initial Nonemployee Director Option is granted
shall be the Date of the Initial Option Grant for such option.
(b) If, on any date upon which Initial Nonemployee Director Options
are to be automatically granted pursuant to this Section 4, the number of Common
Shares remaining available for options under this Plan is insufficient for the
grant to each Nonemployee Director entitled thereto of an Initial Nonemployee
Director Option to purchase the entire number of Common Shares specified in this
Section 4, then an Initial Nonemployee Director Option to purchase a
proportionate amount of such available number of Common Shares (rounded to the
nearest whole share) shall be granted to each Nonemployee Director entitled
thereto on such date.
(c) Each IPO Nonemployee Director Option and each Initial Nonemployee
Director Option granted under this Plan shall become fully exercisable on the
date of grant.
(d) Each IPO Nonemployee Director Option and each Initial Nonemployee
Director Option granted under this Plan shall expire upon the fifth anniversary
of the Date of Initial Option Grant.
(e) Each IPO Nonemployee Director Option and each Initial Nonemployee
Director Option shall have an exercise price equal to the aggregate Fair Market
Value on the Date of Grant of such option of the Common Shares subject thereto.
(f) Payment of the exercise price of any IPO Nonemployee Director
Option or Initial Nonemployee Director Option granted under this Plan shall be
made in full in cash concurrently with the exercise of such option; PROVIDED,
HOWEVER, that, in the discretion of the Board of Directors of the Company (the
"Board"), the payment of such exercise price may instead be made:
(i) in whole or in part, with Common Shares delivered
concurrently with such exercise (such shares to be valued on the basis of
the Fair Market Value of such shares on the date of such exercise),
provided that the Company is not then prohibited from purchasing or
acquiring Common Shares; or
2
<PAGE>
(ii) in whole or in part, by the delivery, concurrently with such
exercise and in accordance with Section 220.3(e)(4) of Regulation T
promulgated under the Exchange Act, of a properly executed exercise notice
for such option and irrevocable instructions to a broker promptly to
deliver to the Company a specified dollar amount of the proceeds of a sale
of or a loan secured by the Common Shares issuable upon exercise of such
option.
(g) For purposes of this Section 4, the "Fair Market Value" of a
Common Share or other security on any date (the "Determination Date") shall be
equal to the closing price per Common Share or unit of such other security on
the business day immediately preceding the Determination Date, as reported in
The Wall Street Journal, Western Edition, or, if no closing price was so
reported for such immediately preceding business day, the closing price for the
next preceding business day for which a closing price was so reported, or, if no
closing price was so reported for any of the 30 business days immediately
preceding the Determination Date, the average of the high bid and low asked
prices per Common Share or unit of such other security on the business day
immediately preceding the Determination Date in the over-the-counter market, as
reported by the National Association of Securities Dealers, Inc. Automated
Quotations System ("NASDAQ") or such other system then in use, or, if the Common
Shares or such other security were not quoted by any such organization on such
immediately preceding business day, the average of the closing bid and asked
prices on such day as furnished by a professional market maker making a market
in the Common Shares or such other security selected by the Board.
(h) All outstanding IPO Nonemployee Director Options and Initial
Nonemployee Director Options theretofore granted under this Plan shall terminate
upon the first to occur of the following:
(i) the dissolution or liquidation of the Company;
(ii) a reorganization, merger or consolidation of the Company as
a result of which the outstanding securities of the class then subject to
such outstanding IPO Nonemployee Director Options or Initial Nonemployee
Director Options are exchanged for or converted into cash, property or
securities not issued by the Company, which reorganization, merger or
consolidation shall have been affirmatively recommended to the shareholders
of the Company by the Board; or
(iii) the sale of substantially all of the property and assets of
the Company.
(i) Each IPO Nonemployee Director Option and each Initial Nonemployee
Director Option shall be nontransferable by the optionee other than by will or
the laws of descent and distribution, and shall be exercisable during the
optionee's lifetime only by the optionee or the optionee's guardian or legal
representative.
(j) IPO Nonemployee Director Options and Initial Nonemployee Director
Options are not intended to qualify as Incentive Stock Options.
Section 5. STOCK SUBJECT TO PLAN
(a) At any time, the aggregate number of Common Shares issued and
issuable pursuant to all Awards (including all Incentive Stock Options) granted
under this Plan shall not exceed 730,000 subject to adjustment as provided in
Section 8 hereof.
(b) For purposes of Section 4(b) hereof, the aggregate number of
Common Shares issued and issuable pursuant to Awards granted under this Plan
shall at any time be deemed to be equal to the sum of the following:
(i) the number of Common Shares that were issued prior to such
time pursuant to Awards granted under this Plan, other than Common Shares
that were subsequently reacquired by the Company pursuant to the terms and
conditions of such Awards and with respect to which the holder thereof
received no benefits of ownership such as dividends; plus
(ii) the number of Common Shares that were otherwise issuable
prior to such time pursuant to Awards granted under this Plan, but that
were withheld by the Company as payment of the purchase price of the Common
Shares issued pursuant to such Awards or as payment of the recipient's tax
withholding obligation with respect to such issuance; plus
3
<PAGE>
(iii) the maximum number of Common Shares that are or may be
issuable at or after such time pursuant to Awards granted under this Plan
prior to such time.
Section 6. DURATION OF PLAN
No Awards shall be made under this Plan after April 17, 2006.
Although Common Shares may be issued after April 17, 2006 pursuant to Awards
made prior to such date, no Common Shares shall be issued under this Plan after
April 17, 2016.
Section 7. ADMINISTRATION OF PLAN
(a) This Plan shall be administered by a committee (the "Committee")
of the Board of Directors of the Company (the "Board") consisting of two or more
directors, each of whom (i) is a "disinterested person" (as such term is defined
in Rule 16b-3 promulgated under the Exchange Act, as such Rule may be amended
from time to time) and (ii) is an "outside director" within the meaning of
Section 162(m) of the Internal Revenue Code of 1986, as amended; PROVIDED,
HOWEVER, that before the registration of the Common Shares under Section 12 of
the Exchange Act, grants of Awards may, in the absence of action of the
Committee, be made by the entire Board.
(b) Subject to the provisions of this Plan, the Committee shall be
authorized and empowered to do all things necessary or desirable in connection
with the administration of this Plan, including, without limitation, the
following:
(i) adopt, amend and rescind rules and regulations relating to
this Plan;
(ii) determine which persons are Participants and to which of
such Participants, if any, Awards shall be granted hereunder;
(iii) grant Awards to Participants and determine the terms and
conditions thereof, including the number of Common Shares issuable pursuant
thereto;
(iv) determine the terms and conditions of the Initial
Nonemployee Director Options that are automatically granted hereunder,
other than the terms and conditions specified in Section 4 hereof;
(v) determine whether, and the extent to which adjustments are
required pursuant to Section 8 hereof; and
(vi) interpret and construe this Plan and the terms and
conditions of any Award granted hereunder.
Section 8. ADJUSTMENTS
If the outstanding securities of the class then subject to this Plan
are increased, decreased or exchanged for or converted into cash, property or a
different number or kind of securities, or if cash, property or securities are
distributed in respect of such outstanding securities, in either case as a
result of a reorganization, merger, consolidation, recapitalization,
restructuring, reclassification, dividend (other than a regular cash dividend)
or other distribution, stock split, reverse stock split or the like, or if
substantially all of the property and assets of the Company are sold, then,
unless the terms of such transaction shall provide otherwise, the Committee
shall make appropriate and proportionate adjustments in (i) the number and type
of shares or other securities or cash or other property that may be acquired
pursuant to Awards theretofore granted under this Plan and (ii) the maximum
number and type of shares or other securities that may be issued pursuant to
Awards thereafter granted under this Plan.
Section 9. AMENDMENT AND TERMINATION OF PLAN
The Board may amend or terminate this Plan at any time and in any
manner, subject to the following limitations:
4
<PAGE>
(a) No such amendment or termination shall deprive the recipient of
any Award theretofore granted under this Plan, without the consent of such
recipient, of any of his or her rights thereunder or with respect thereto; and
(b) Section 4 hereof shall not be amended more than once every six
months, other than to comport with changes in the Internal Revenue Code, the
Participant Retirement Income Security Act, or the rules and regulations
thereunder.
Section 10. EFFECTIVE DATE OF PLAN
This Plan shall be effective as of April 17, 1996, the date upon which
it was approved by the Board; PROVIDED, HOWEVER, that no Common Shares may be
issued under this Plan until it has been approved, directly or indirectly, by
the affirmative votes of the holders of a majority of the securities of the
Company present, or represented, and entitled to vote at a meeting duly held in
accordance with the laws of the State of California.
5
<PAGE>
EXHIBIT 99.2
Form of Incentive Stock Option Agreement
<PAGE>
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
1996 EMPLOYEE STOCK INCENTIVE PLAN
INCENTIVE STOCK OPTION AGREEMENT
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:
11. GRANT OF OPTION; CERTAIN TERMS AND CONDITIONS. The Company
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: %
---------
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.
1
<PAGE>
12. ACCELERATION AND TERMINATION OF OPTION.
(a) Termination of Employment.
(i) TERMINATION WITHIN ONE YEAR AFTER CHANGE OF CONTROL. In
the event that Employee shall cease to be an employee 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 three
months after 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 terms "person" and
"entity," as used in this 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.
(ii) RETIREMENT. If Employee's Employment is Terminated by
reason of 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
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.
2
<PAGE>
(iv) OTHER TERMINATION. If Employee's Employment is Terminated
for 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
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
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
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.
13. ADJUSTMENTS. In the event that the outstanding securities of the
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
Option shall be made without changing the aggregate Exercise Price of the then
unexercised portion of the Option.
14. EXERCISE.
(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 (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
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.
15. PAYMENT OF WITHHOLDING TAXES. If the Company becomes obligated
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.
3
<PAGE>
16. NOTICES. All notices and other communications required or
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
700 East Bonita Avenue, Pomona, California 91767, Attention: Al A. Ronco, 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.
17. STOCK EXCHANGE REQUIREMENTS; APPLICABLE LAWS. Notwithstanding
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.
18. NONTRANSFERABILITY. Neither the Option nor any interest therein
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.
19. PLAN. The Option is granted pursuant to the Plan, as in effect
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
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
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.
20. SHAREHOLDER RIGHTS. No person or entity shall be entitled to
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.
21. EMPLOYMENT RIGHTS. No provision of this Agreement or of the
Option granted hereunder shall (i) confer upon Employee any right to continue in
the employ of 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.
22. GOVERNING LAW. This Agreement and the option granted hereunder
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.
4
<PAGE>
IN WITNESS WHEREOF, the Company and Employee have duly executed this
Agreement as of the Date of Grant.
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
By
------------------------------------
Authorized Representative
EMPLOYEE
--------------------------------------
Signature
--------------------------------------
Printed Name
--------------------------------------
Street Address
--------------------------------------
City, State and Zip Code
--------------------------------------
Social Security Number
5
<PAGE>
EXHIBIT 99.3
Form of Non-Qualified Stock Option Agreement
<PAGE>
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
1996 EMPLOYEE STOCK INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
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 ("Participant").
WHEREAS, Participant is an employee or independent contractor 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 Participant
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:
23. GRANT OF OPTION; CERTAIN TERMS AND CONDITIONS. The Company
hereby grants to Participant, and Participant 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.
Participant: _________________
Date of Grant: __________
Number of shares purchasable: __________
Exercise Price per share: __________
Expiration Date: __________
Annual Vesting Rate: __________%
The Option is not intended to qualify as an incentive stock option under
Section 422 of the Internal Revenue Code of 1986, as amended (an "Incentive
Stock Option").
24. ACCELERATION AND TERMINATION OF OPTION.
(a) Termination of Employment.
(i) TERMINATION WITHIN ONE YEAR AFTER CHANGE OF CONTROL. In the
event that Participant 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 Participant'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:
1
<PAGE>
(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 terms "person" and
"entity," as used in this 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 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 Participant's Employment is Terminated by reason
of Participant'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
upon the Expiration Date.
(iii) DEATH OR PERMANENT DISABILITY. If Participant's Employment is
Terminated by reason of the death or Permanent Disability (as hereinafter
defined) of Participant, 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. Participant 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 Participant does or does not have a Permanent
Disability shall be final and binding upon the Company and Participant.
(iv) OTHER TERMINATION. If Participant's Employment is Terminated
for 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
anything to the contrary contained in this Agreement, if Participant 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.
2
<PAGE>
(c) OTHER EVENTS CAUSING ACCELERATION OF OPTION. The Committee, in
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
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.
25. ADJUSTMENTS. In the event that the outstanding securities of the
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
Option shall be made without changing the aggregate Exercise Price of the then
unexercised portion of the Option.
26. EXERCISE.
(a) The Option shall be exercisable during Participant's
lifetime only by Participant or by his or her guardian or legal representative,
and after Participant's death only by the person or entity entitled to do so
under Participant'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 (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 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.
27. PAYMENT OF WITHHOLDING TAXES. If the Company becomes obligated
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 Participant 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.
28. NOTICES. All notices and other communications required or
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
700 East Bonita Avenue, Pomona, California 91767, Attention: Al A. Ronco, or to
Participant 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.
29. STOCK EXCHANGE REQUIREMENTS; APPLICABLE LAWS. Notwithstanding
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,
3
<PAGE>
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.
30. NONTRANSFERABILITY. Neither the Option nor any interest therein
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.
31. PLAN. The Option is granted pursuant to the Plan, as in effect
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
such amendment shall deprive Participant, without his or her consent, of the
Option or of any of Participant's rights under this Agreement. The
interpretation and construction by the Committee of the Plan, this Agreement,
the Option and such rules and regulations as may be adopted by the Committee for
the purpose of administering the Plan shall be final and binding upon
Participant. 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 Participant or any other person or entity then
entitled to exercise the Option.
32. SHAREHOLDER RIGHTS. No person or entity shall be entitled to
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.
33. EMPLOYMENT OR CONTRACT RIGHTS. No provision of this Agreement or
of the Option granted hereunder shall (i) confer upon Participant 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 or contract of Participant, with or without cause,
or (iii) confer upon Participant 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. PARTICIPANT HEREBY ACKNOWLEDGES AND AGREES
THAT THE COMPANY AND EACH OF ITS SUBSIDIARIES MAY TERMINATE THE EMPLOYMENT OR
CONTRACT OF PARTICIPANT AT ANY TIME AND FOR ANY REASON, OR FOR NO REASON, UNLESS
PARTICIPANT AND THE COMPANY OR SUCH SUBSIDIARY ARE PARTIES TO A WRITTEN
EMPLOYMENT OR INDEPENDENT CONTRACTOR AGREEMENT THAT EXPRESSLY PROVIDES
OTHERWISE.
34. GOVERNING LAW. This Agreement and the Option granted hereunder
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.
4
<PAGE>
IN WITNESS WHEREOF, the Company and Participant have duly executed
this Agreement as of the Date of Grant.
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
By____________________________
Authorized Representative
PARTICIPANT
______________________________
Signature
______________________________
Printed Name
______________________________
Street Address
______________________________
City, State and Zip Code
______________________________
Social Security Number
5
<PAGE>
EXHIBIT 99.4
Form of Restricted Stock Agreement
<PAGE>
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
1996 EMPLOYEE STOCK INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement ("Agreement") is made and entered into
as of the Date of Award indicated below by and between Keystone Automotive
Industries, Inc., a California corporation (the "Company"), and the person named
below ("Participant").
WHEREAS, Participant is an employee or independent contractor 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 award to Participant
of the right 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:
35. AWARD; CERTAIN TERMS AND CONDITIONS. The Company hereby awards
to Participant, and Participant hereby accepts, as of the Date of Award, the
right to purchase the number of shares of Common Stock indicated below (the
"Restricted Shares") for the Cash Purchase Price per share indicated below. THE
AGGREGATE CASH PURCHASE PRICE MUST BE PAID TO THE COMPANY ON OR PRIOR TO 5:00
P.M. (LOCAL TIME AT THE COMPANY'S PRINCIPAL EXECUTIVE OFFICE) UPON THE SIXTIETH
DAY FOLLOWING THE DATE OF AWARD. The Restricted Shares shall be subject to all
of the terms and conditions set forth in this Agreement, including the
restrictions imposed pursuant to Section 3 hereof; PROVIDED, HOWEVER, that on
each anniversary of the Date of Award, such restrictions shall terminate with
respect to that number of Restricted Shares (rounded to the nearest whole share)
equal to the total number of Restricted Shares multiplied by the Annual Vesting
Rate indicated below (the termination of such restrictions with respect to any
Restricted Share, for any reason, shall be referred to herein as the "vesting"
of such share).
Participant:
------------------------------
Date of Award:
----------------------------
Number of shares purchasable:
-------------
Cash Purchase Price per share: $
------------
Annual Vesting Rate: %
--------
36. CONSIDERATION FOR SHARES; METHOD OF PAYMENT.
(a) The consideration for the issuance and sale of Restricted Shares
contemplated hereby may include, in addition to the Cash Purchase Price per
share indicated in Section 1 hereof, consideration in the form of past services
to the Company or one or more of its subsidiaries. If the Cash Purchase Price
per share is $0, then (i) the total consideration for the issuance and sale of
the Restricted Shares shall be deemed to be equal to $0.01 per share and
(ii) such consideration shall be deemed to have been received by the Company, on
or prior to the Date of Award, in the form of past services.
(b) The aggregate Cash Purchase Price must be paid to the Company in
cash or by check payable to the Company. Upon payment to the Company in full of
the aggregate Cash Purchase Price as provided herein on or prior to 5:00 p.m.
(local time at the Company's principal executive office) on the sixtieth day
following the Date of Award, Participant shall be deemed to have purchased the
Restricted Shares effective as of the Date of Award.
1
<PAGE>
37. RESTRICTIONS. Until a Restricted Share vests, it may not be
sold, assigned, conveyed, gifted, pledged, hypothecated, or otherwise
transferred in any manner.
38. ACCELERATION OF VESTING.
(a) Notwithstanding anything to the contrary contained in this
Agreement, in the event that Participant shall cease to be an employee or
independent contractor of the Company or any of its subsidiaries for any reason,
or for no reason, within one year after a Change of Control (as hereinafter
defined), all of the then unvested Restricted Shares shall vest upon the date of
such event.
(b) "Change of Control" shall mean the first to occur of the
following events:
(i) any date upon which the directors of the Company who were
nominated by the Board of Directors (the "Board") for election as directors
cease to constitute a majority of the directors of the Company;
(ii) 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 terms "person" and "entity," as
used in this clause (ii) shall not include (A) the Company or any of its
subsidiaries, (B) any employee benefit plan of the Company or any of its
subsidiaries, (C) any entity holding voting securities of the Company for
or pursuant to the terms of any such plan, (D) 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 (E) any person or
entity who was a 25% Stockholder on the date of adoption of the Plan by the
Board; or
(iii) 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 comprising the Restricted Shares 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 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.
(c) In addition, the Committee, in its sole discretion, may
accelerate the vesting of any or all of the Restricted Shares at any time.
39. REPURCHASE OF RESTRICTED SHARES. Notwithstanding anything to the
contrary contained in this Agreement, if Participant shall cease to be an
employee or independent contractor of the Company or any of its subsidiaries for
any reason, or for no reason, then, unless the Committee shall determine
otherwise, the Company shall repurchase each then unvested Restricted Share at a
purchase price equal to the Cash Purchase Price per share.
40. PAYMENT OF WITHHOLDING TAXES. If the Company becomes obligated
to withhold an amount on account of any federal, state or local tax imposed as a
result of the sale of the Restricted Shares to Participant pursuant to this
Agreement or the termination of the restrictions imposed upon the Restricted
Shares hereunder, including, without limitation, any federal, state or other
income tax, or any F.I.C.A., state disability insurance tax or other employment
tax (the date upon which the Company becomes so obligated shall be referred to
herein as the "Withholding Date"), then Participant shall pay such amount (the
"Withholding Liability") to the Company on the Withholding Date in cash or by
check payable to the Company.
2
<PAGE>
41. ESCROW.
(a) Until a Restricted Share vests, (i) the record address of the
holder of record of such Restricted Share shall be c/o the Secretary of the
Company at the address of the Company's principal executive office, (ii) the
stock certificate representing such Restricted Share (together with any cash,
property or securities comprising all or any part of such Restricted Share as
provided in Section 8 hereof) shall be held in escrow in the custody of the
Secretary of the Company, duly endorsed in blank or accompanied by a duly
executed stock power, and (iii) such stock certificate shall contain the
following legend:
"The transfer and registration of transfer of the securities
represented by this certificate are subject to certain
restrictions as provided in a Restricted Stock Agreement dated as
of [Date of Award to be inserted] by and between the Corporation
and [name of Participant to be inserted]."
(b) From and after the date upon which a Restricted Share vests, the
holder of record of such Restricted Share shall be entitled (provided that
Participant shall have paid the Withholding Liability to the Company pursuant to
Section 6 hereof) to receive the stock certificate representing such Restricted
Share (together with any cash, property or securities comprising all or any part
of such Restricted Share as provided in Section 8 hereof), which stock
certificate shall not contain the legend set forth in subsection (a)(iii) above.
42. VOTING; DIVIDENDS; CERTAIN CORPORATE TRANSACTIONS. The holder of
record of any Restricted Share shall be entitled to exercise all voting rights
with respect to such share and to receive all regular cash dividends paid with
respect thereto. In the event that the outstanding securities of any class then
comprising the Restricted Shares 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, then, unless the Committee shall determine otherwise, the term
"Restricted Shares" shall, from and after the date of such event, include such
cash, property or securities so distributed in respect of the Restricted Shares,
or into or for which the Restricted Shares are so increased, decreased,
exchanged or converted.
43. PLAN. The Restricted Shares are being sold pursuant to the Plan,
as in effect on the Date of Award, and are subject to all the terms and
conditions of the Plan, as the same may be amended from time to time; PROVIDED,
HOWEVER, that no such amendment shall deprive Participant, without his or her
consent, of the Restricted Shares or of any of Participant's rights under this
Agreement. The interpretation and construction by the Committee of the Plan,
this Agreement and such rules and regulations as may be adopted by the Committee
for the purpose of administering the Plan shall be final and binding upon
Participant. Until the Restricted Shares shall vest or be forfeited, the
Company shall, upon written request therefor, send a copy of the Plan, in its
then current form, to the holder of record of the Restricted Shares.
44. EMPLOYMENT OR CONTRACT RIGHTS. No provision of this Agreement
shall (i) confer upon Participant 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 or
contract of Participant, with or without cause, or (iii) confer upon
Participant 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. PARTICIPANT HEREBY ACKNOWLEDGES AND AGREES THAT THE COMPANY AND EACH
OF ITS SUBSIDIARIES MAY TERMINATE THE EMPLOYMENT OR CONTRACT OF PARTICIPANT
AT ANY TIME AND FOR ANY REASON, OR FOR NO REASON, UNLESS PARTICIPANT AND THE
COMPANY OR SUCH SUBSIDIARY ARE PARTIES TO A WRITTEN EMPLOYMENT OR INDEPENDENT
CONTRACTOR AGREEMENT THAT EXPRESSLY PROVIDES OTHERWISE.
45. GOVERNING LAW. This Agreement 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.
3
<PAGE>
IN WITNESS WHEREOF, the Company and Participant have duly executed
this Agreement as of the Date of Award.
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
By
------------------------------------
Authorized Representative
PARTICIPANT
--------------------------------------
Signature
--------------------------------------
Printed Name
--------------------------------------
Street Address
--------------------------------------
City, State and Zip Code
--------------------------------------
Social Security Number
4
