Exhibit 10.26
KEY EMPLOYEE SALARY CONTINUATION AGREEMENT
AGREEMENT, dated as of the 11/th/ day of April, 2000 between KEYSTONE
AUTOMOTIVE INDUSTRIES, INC., a California corporation (the "Company"), and Xxxxx
X. Xxxxxxxx (the "Executive").
W I T N E S S E T H:
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WHEREAS, the Company considers it essential to the best interests of the
Company and its stockholders that its management be encouraged to remain with
the Company and to continue to devote full attention to the Company's business
in the event an effort is made to obtain control of the Company through a tender
offer or otherwise;
WHEREAS, in this connection, the Company recognized that the possibility
for a change in control and the uncertainty and questions which it may raise
among management may result in the departure or distraction of management
personnel to the detriment of the Company and its stockholders;
WHEREAS, the Executive is a key employee of the Company;
WHEREAS, the Company believes the Executive has made valuable contributions
to the productivity and profitability of the Company;
WHEREAS, should the Company receive any proposals from a third person
concerning a possible business combination with, or acquisition of equity
securities of, the Company, the Company believes it imperative that the Company
and the Board of Directors (the "Board") be able to rely upon the Executive to
continue in his position, and that the Company be able to receive and rely upon
his advice, if so requested, as to the best interests of the Company and its
stockholders without concern that he might be distracted by the personal
uncertainties and risks created by such a proposal; and
WHEREAS, should the Company receive any such proposals, in addition to the
Executive's regular duties, he may be called upon to assist in the assessment of
such proposals, advise management and the Board as to whether such proposals
would be in the best interests of the Company and its stockholders, and to take
such other actions as the Board might determine to be appropriate;
NOW, THEREFORE, to assure the Company that it will have the continued
undivided attention and services of the Executive and the availability of his
advice and counsel notwithstanding the possibility, threat or occurrence of a
bid to take over control of the Company, and to induce the Executive to remain
in the employ of the Company, and for other good and valuable consideration, the
Company and the Executive agree as follows:
1. Services During Certain Events.
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In the event a third person begins a tender or exchange offer, circulates a
proxy to stockholders, or takes other steps seeking to effect a Change in
Control (as hereafter defined), the Executive agrees that he will not
voluntarily leave the employ of the Company, and will render the services
contemplated in the recitals to this Agreement, until the third person has
abandoned or terminated his or its efforts to effect a Change in Control or
until after such a Change in Control has been effected. In the event that the
Executive breaks his obligations under this paragraph, he shall forfeit his
rights to the benefits conferred hereby (which forfeiture shall constitute the
sole remedy of the Company for such breach). The Company shall promptly notify
the Executive if and when it receives knowledge that steps are being taken to
effect a Change in Control.
2. Change in Control.
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For the purposes of this Agreement, "Change in Control" shall have the
following meaning: (i) a merger of equivalent combination involving the
Company after which forty-nine percent (49%) or more of the voting stock of the
surviving corporation is held by persons other than former shareholders of the
Company; (ii) the acquisition of thirty percent (30%) or more of the
outstanding shares of Common Stock by any person (as defined by Section 3(a)(9)
of the 0000 Xxx) other than directly from the Company; (iii) the occurrence of
circumstance having the effect that thirty percent (30%) or more of the
directors elected by shareholders to the Board are
persons who were not nominated by management in the then most recent proxy
statement of the Company; or (iv) a change in the Chief Executive Officer of the
Company.
3. Circumstances Triggering Receipt of Benefits.
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The Company shall provide the Executive with the benefits set forth in
Section 5 immediately upon any "Involuntary Termination" of the Executive's
employment by the Company within one year following a Change in Control.
"Involuntary Termination" shall mean the termination of the Executive's
employment with the Company during such period (a) by the Company unless the
termination is: (i) by reason of the Executive's death or (ii) by reason of the
Executive's inability by reason of illness or other physical and mental
disability to perform his duties for any consecutive 180 day period; (b) by such
Executive after any reduction in his base salary, any material reduction in his
fringe benefits, a requirement to be physically present at the Company's
executive offices more than two days per week, his relocation to a location
outside a 60 mile radius of his current residence without his consent, or a
material decrease in his responsibilities or authority or any other material
adverse change in the condition of his employment.
4. Notice of Termination.
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Any termination of the Executive's employment with the Company by the
Company or by the Executive, in each case as contemplated by Section 3, shall be
communicated by written "Notice of Termination" to the other party hereto.
5. Benefits.
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Subject to the conditions set forth in Section 3, the following benefits
(subject to any applicable payroll or other taxes required to be withheld) shall
be paid to the Executive: (a) the Company shall continue paying such Executive's
then current annual base salary for a period of one year following such
termination, such amount to be in addition to any other coverage, fringe
benefits, payments and distributions to which such Executive is entitled; and
(b) all Stock Options granted to such Executive which the Executive shall not
then have been entitled to exercise shall be accelerated immediately prior to or
concurrently with the occurrence with the change in control and the optionee
shall have the right to exercise all such options.
6. Continuing Obligations.
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In order to induce the Company to enter into this Agreement, the Executive
hereby agrees that all documents, records, techniques, business secrets and
other information which have come into his possession from time to time during
his employment hereunder, shall be deemed to be confidential and proprietary to
the Company and the Executive further agrees to retain in confidence any
confidential information known to him concerning the Company and its
subsidiaries and their respective businesses so long as such information is not
publicly disclosed.
7. Successors.
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(a) The Company will require any successor controlled by the Company's
Board of Directors (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of the
Company to obtain such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitle the Executive
to the benefits provided by Section 5 from the Company in the same amount and on
the same terms as the Executive would be entitled hereunder upon Involuntary
Termination within one year following a Change in Control as provided in Section
3, except that for purposes of implementing the foregoing, the date on which any
such succession becomes effective shall be deemed the date of the Involuntary
Termination. As used in the Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which executes and delivers the agreement provided for in this Section
7 or which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
(b) This Agreement shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devises and legatees. If the Executive should
die while any amounts are payable to him hereunder, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to his devisee, legatee or other designee or, if there be no such
designee, to his estate.
8. Notices.
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For purposes of this Agreement, notices and all other communications
provided herein shall be in writing and shall be deemed to have been duly given
when delivered or mailed by United States registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Executive:
Xxxxx X. Xxxxxxxx
0000 Xxxxxxxxx Xxxx
Xxx Xxxxxxx, XX 00000
If to the Company:
Keystone Automotive Industries, Inc.
000 X. Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Chief Executive Officer
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
9. Governing Law.
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The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of California.
10. Miscellaneous.
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Except as provided in Section 13, no provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Executive and the Company. No waiver by
either party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or any prior subsequent time. This agreement supersedes
all prior agreements with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement.
11. Separability.
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The invalidity or unenforceability of any provisions of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
12. Non-assignability.
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This Agreement is personal in nature and neither of the parties hereto
shall, without the consent of the other, assign or transfer this agreement or
any rights or obligations hereunder, except as provided in Section 7. Without
limiting the foregoing, the Executive's right to receive
payments hereunder shall not be assignable or transferable, whether by pledge,
creation of security interest or otherwise, other than a transfer by his will or
by the laws of descent or distribution, and in the event of any attempted
assignment or transfer contrary to this paragraph the Company shall have no
liability to pay any amount so attempted to be assigned or transferred.
13. Termination; Modification.
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The Company may terminate or modify this agreement at any time by three (3)
months written notice of such termination or modification given to the
Executive; except that no such termination or modification shall be made, and if
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made shall have no effect, (a) within one year after the Change in Control in
question, (b) following a termination of employment as contemplated by Section
3, or (c) during any period of time when the Company has knowledge that any
third person has taken steps reasonably calculated to effect a Change in Control
until, in the opinion of the Board, the third person has abandoned or terminated
his efforts to effect a Change in Control. Any decision by the Board made in
good faith as to the nature of any steps taken by such third person or as to
whether the third person has abandoned or terminated his efforts to effect a
Change in Control shall be conclusive and binding on the Executive.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered as of the day and year first above set forth.
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.
By /s/ Xxxxxxx X. Xxxxxxx
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President & Chief Executive Officer
EXECUTIVE
By /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
