EXHIBIT 10.7
EXECUTION COPY
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of October 30,
2003, by and between Keystone Automotive Holdings, Inc., a Delaware corporation
(the "Company"), and Xxxxxx X. Vor Broker ("Executive").
The execution and delivery of this Agreement by the Company and
Executive are conditions to (i) the merger (the "Merger") described in the
Agreement and Plan of Merger dated August 29, 2003 by and among the Company,
Keystone Automotive Operations, Inc. ("Keystone"), Keystone Merger Sub, Inc. and
LAGE, LLC, in its capacity as holder representative (the "Merger Agreement").
References in Sections 5, 6 and 7 hereof to the Company and its Subsidiaries
include all predecessor entities which conducted the business that is the
subject of the Merger.
The Executive desires to serve as the president and chief executive
officer of the Company. This Agreement replaces any existing employment
agreement between Executive, on the one hand, and Keystone or any of its
Subsidiaries or predecessor entities, on the other hand, and the parties
acknowledge that Executive has no remaining rights, obligations or entitlements
under any such agreement.
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. In this Agreement:
"Base Salary" has the meaning given to that term in Section 3(a).
"Benefits" means all of the employee benefit programs for which senior
executive employees of the Company and its Subsidiaries are generally eligible.
Executive is also entitled to reimbursement of certain business expenses and
other perquisites as set forth on Exhibit B.
"Board" means the Board of Directors of the Company.
"Cause" means the Executive (i) commits, or is charged with, a felony
or other crime involving moral turpitude; (ii) engages in willful misconduct or
fraud with respect to the Company or any of its Subsidiaries or any of their
customers or suppliers or an intentional act of dishonesty or disloyalty in the
course of his employment; (iii) engages in the abuse of alcohol or illegal drugs
causing the Company or any of its Subsidiaries material disrepute or economic
harm or materially adversely affecting the Executive's ability to perform his
duties, responsibilities and functions hereunder; (iv) refuses to perform his
material obligations under this Agreement (except in connection with a
Disability) as reasonably directed by the Board, which failure is not cured
within 15 days after written notice thereof to the Executive; (v)
misappropriates one or more of the Company's assets or business opportunities;
or (vi) breaches Sections 5, 6 or 7 hereof which breach, if capable of being
cured, is not cured within 10 days of written notice thereof has been delivered
to the Executive.
"Disability" means the Executive's inability to perform the essential
duties, responsibilities and functions of his position with the Company and its
Subsidiaries for a continuous period of 180 days as a result of any mental or
physical disability or incapacity, as determined under the definition of
disability in the Company's long-term disability plan so as to qualify Executive
for benefits under the terms of that plan or as determined by an independent
physician to the extent no such plan is then in effect. Executive shall
cooperate in all respects with the Company if a question arises as to whether he
has become disabled (including, without limitation, submitting to an examination
by a medical doctor or other health care specialists selected by the Company and
authorizing such medical doctor or such other health care specialist to discuss
Executive's condition with the Company).
"Employment Period" means the period commencing on the date hereof and
ending on the Expiration Date or such earlier date as contemplated in the
proviso to Section 4(a).
"Expiration Date" means the third anniversary of the date hereof;
provided, that if a written notice is not given by the Company or the Executive
at least 90 days prior to such anniversary (or any subsequent anniversary if
this Agreement is extended) stating that such party is electing to terminate the
Employment Period, then the Expiration Date will automatically be extended to
the next anniversary of the date hereof.
"Expiration Year" means the calendar year in which the Employment
Period expires.
"Good Reason" means: (i) Executive's compensation is reduced in a
manner not in accordance with the provisions for any such reduction provided by
this Agreement; (ii) Executive's duties or authority are changed, without his
permission, in a manner materially inconsistent with his role as president and
chief executive officer or they are adversely changed or reduced; (iii)
Executive is required to relocate outside of the greater-Exeter, Pennsylvania
area without his agreement; or (iv) there is otherwise a material breach of this
Agreement by the Company.
"Non-Compete Period" means the period commencing on the date hereof
and ending 24 months after termination of the Executive's employment with the
Company; provided that if the Executive is terminated without Cause or
terminates his employment for Good Reason, then "Non-Compete Period" means the
period commencing on the date hereof and ending 12 months after the Executive's
termination of employment.
"Termination Year" means the calendar year in which the Employment
Period is terminated.
"Subsidiaries" means any corporation or other entity of which the
securities or other ownership interests having the voting power to elect a
majority of the board of directors or other governing body are, at the time of
determination, owned by the Company, directly or through one of more
Subsidiaries.
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2. Employment, Position and Duties.
(a) The Company shall employ Executive and Executive hereby
accepts employment with the Company, upon the terms and conditions set forth in
this Agreement for the Employment Period.
(b) During the Employment Period, Executive shall serve as the
president and chief executive officer of the Company and shall perform the
normal duties, responsibilities and functions of the president and chief
executive officer of a company of a similar size and type and shall have such
power and authority as shall reasonably be required to enable him to perform his
duties hereunder, subject to the power and authority of the Board to expand or
limit such duties, responsibilities, functions, power and authority and to
overrule actions of officers of the Company in a manner consistent with the
traditional responsibilities of such office.
(c) During the Employment Period, Executive shall (i) render
such administrative, financial and other executive and managerial services to
the Company and its Subsidiaries which are consistent with Executive's position
as the Board may from time to time direct, (ii) report to the Board and shall
devote his best efforts and his full business time and attention (except for
permitted vacation periods and reasonable periods of illness or other incapacity
and except that Executive may serve as a director of an unrelated company with
the consent of the Board, which consent will not be unreasonably withheld) to
the business and affairs of the Company and its Subsidiaries and (iii) submit to
the Board all business, commercial and investment opportunities presented to
Executive or of which Executive becomes aware which relate to the business of
the Company and its subsidiaries and unless approved by the Board in writing,
Executive shall not pursue, directly or indirectly, any such opportunities on
Executive's own behalf. Executive shall perform his duties, responsibilities and
functions to the Company and its Subsidiaries hereunder to the best of his
abilities in a diligent, trustworthy and professional manner.
(d) During the Employment Period, Executive shall serve as a
member of the Board.
3. Compensation and Benefits.
(a) During the Employment Period, Executive's base salary shall
be a minimum of $375,000 per annum (as increased or decreased in accordance with
this Agreement from time to time, the "Base Salary"), which salary shall be
payable by the Company in regular installments in accordance with the Company's
general payroll practices (in effect from time to time). The Executive's Base
Salary will be subject to review and increase or decrease (but not below the
Base Salary in effect on the date of this Agreement) by the Board on or about
January 1 of each fiscal year during the Employment Period. In addition, during
the Employment Period, Executive shall be entitled to participate in all of the
Benefits.
(b) Executive shall be entitled to five weeks of paid vacation
each calendar year in accordance with the Company's policies, which if not taken
in any year may not be carried forward to any subsequent calendar year and no
compensation shall be payable in lieu
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thereof. Such vacation will accrue as of January 1 of each year, except that
during the remainder of the 2003 calendar year, Executive shall accrue five
weeks of paid vacation minus the amount of vacation Executive previously took in
2003 as of the date of this Agreement.
(c) During the Employment Period, the Company shall reimburse
Executive for all reasonable business expenses incurred by him in the course of
performing his duties, responsibilities and functions under this Agreement which
are consistent with the Company's policies in effect from time to time with
respect to travel, entertainment and other business expenses, subject to the
Company's requirements with respect to reporting and documentation of such
expenses.
(d) In addition to the Base Salary, following the end of each
fiscal year during the Employment Period, the Board shall award a bonus to
Executive in an amount equal to up to 35% of Executive's Base Salary in effect
at the end of such fiscal year, based upon Executive's performance and the
Company's achievement of operating targets established by the Board (or any
compensation committee thereof) in consultation with Executive at the beginning
of such fiscal year; provided, however, that with respect to 2003, Executive
shall be awarded a bonus based on the Company's operating results for 2003
pursuant to the bonus plan in effect for Executive on the date hereof, with no
adjustment to such operating results as may be required under generally accepted
accounting principles due to the consummation of the transactions contemplated
by the Merger Agreement.
(e) Executive will be indemnified and defended for acts
performed (or omissions made) in his capacity as an officer or director of the
Company to the fullest extent specified in the Company's certificate of
incorporation and bylaws and as permitted under Delaware law.
4. Termination and Payment Terms.
(a) The Employment Period shall end on the Expiration Date;
provided that (i) the Employment Period shall terminate prior to such date
immediately upon Executive's resignation, death or Disability and (ii) the
Employment Period may be terminated by resolution of the Board, with or without
Cause at any time prior to such date. Except as otherwise provided herein, any
termination of the Employment Period by the Company shall be effective as
specified in a written notice from the Company to Executive.
(b) If the Employment Period is terminated prior to the
Expiration Date:
(i) (A) by resolution of the Board (other than for Cause)
or by Executive resigning for Good Reason or (B) if the Employment Period
expires on the Expiration Date, the Executive shall be entitled to receive (1)
all previously earned and accrued but unpaid Base Salary and vacation and unpaid
business expenses up to the date of such termination or the Expiration Date, as
applicable, (2) any bonus (if any) earned by Executive for the fiscal year prior
to the Termination Year or the Expiration Year, as applicable, but then unpaid,
(3) the pro rata portion of Executive's target bonus during the Termination Year
or the Expiration Year, as applicable, to the extent targets thereunder are
achieved for such year, after such termination or
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expiration, pro rated based on the number of days of the Termination Year or the
Expiration Year, as applicable, prior to the date of termination or the
Expiration Date, as applicable, which payment shall be made when the bonus
payments for such Termination Year or the Expiration Year, as applicable, are
otherwise due; (4) severance pay in the full amount of Base Salary at the time
of termination or expiration from the date of termination or the Expiration
Date, as applicable, through the period ending on the first anniversary of the
date of termination or the Expiration Date, as applicable, and a Bonus equal to
the Bonus earned in the year prior to the Termination Year or the Expiration
Year, as applicable, payable on the first anniversary of the date of termination
or the Expiration Date, as applicable; and (5) full continuation of Executive's
health, disability and life insurance Benefits during the one year severance
period (to the extent any of those Benefits cannot be provided by Company during
the one year severance period, the Company will provide Executive with a sum of
money calculated to permit Executive to obtain the same benefits individually,
grossed up for tax purposes so that Executive remains whole); or
(ii) for any other reason, including as a result of the
Executive's death, Disability, voluntary resignation for other than Good Reason
or by resolution of the Board for Cause, the Executive's sole entitlement shall
be to receive all previously earned and accrued but unpaid Base Salary, vacation
and unpaid business expenses up to the date of such termination or expiration
and the Executive shall not be entitled to any further Base Salary, bonus
payments or Benefits for that year or any future year, except as required by
law, or to any other severance compensation of any kind.
(c) The Executive agrees that: (i) the Executive shall be
entitled to the payments and services provided for in Sections 4(b)(i)(3),
4(b)(i)(4) and 4(b)(i)(5), if any, if and only if the Executive has executed and
delivered the Release attached as Exhibit A and seven (7) days have elapsed
since such execution without any revocation thereof by the Executive and the
Executive has not breached as of the date of termination of the Employment
Period the provisions of Sections 5, 6 and 7 hereof and does not breach such
sections or such covenants at any time during the period for which such payments
or services are to be made; and (ii) the Company's obligation to make such
payments and services will terminate upon the occurrence of any such breach
during such period.
(d) Except as stated above, any payments pursuant to Section
4(b) shall be paid by the Company in regular installments in accordance with the
Company's general payroll practices, and following such payments the Company
shall have no further obligation to the Executive pursuant to this Section 4
except as provided by law. All amounts payable to Executive as compensation
hereunder shall be subject to all customary withholding, payroll and other
taxes. The Company shall be entitled to deduct or withhold from any amounts
payable to Executive any federal, state, local or foreign withholding taxes,
excise tax, or employment taxes imposed with respect to Executive's compensation
or other payments or Executive's ownership interest in the Company (including,
without limitation, wages, bonuses, dividends, the receipt or exercise of equity
options and/or the receipt or vesting of restricted equity).
(e) The Executive hereby agrees that except as expressly
provided herein, no severance compensation of any kind, nature or amount shall
be payable to the Executive and except as expressly provided herein, the
Executive hereby irrevocably waives any claim for severance compensation.
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(f) Except as provided in Sections 4(b)(i) and 4(b)(ii) above,
all of the Executive's rights to Benefits hereunder (if any) shall cease upon
the termination of the Employment Period.
5. Confidential Information.
(a) Executive acknowledges that the information, observations
and data (including trade secrets) obtained by him while employed by the Company
and its Subsidiaries concerning the business or affairs of the Company and its
Subsidiaries and the nature and structure of the Acquisition ("Confidential
Information") are the property of the Company or such Subsidiary. Therefore,
Executive agrees that, except as required by law or court order, including, but
not limited to, depositions, interrogatories, court testimony, and the like, he
shall not disclose to any unauthorized person or use for his own purposes any
Confidential Information without the prior written consent of the Board, unless
and to the extent that the Confidential Information becomes generally known to
and available for use by the public other than as a result of Executive's acts
or omissions. Executive shall deliver to the Company at the termination or
expiration of the Employment Period, or at any other time the Company may
request, all memoranda, notes, plans, records, reports, computer tapes,
printouts and software and other documents and data (and copies thereof)
embodying or relating to the Confidential Information, Work Product (as defined
below) or the business of the Company and its Subsidiaries which he may then
possess or have under his control.
(b) Except with regard to disclosures made in connection with
the Merger, Executive shall be prohibited from using or disclosing any
confidential information or trade secrets that Executive may have learned
through any prior employment. If at any time during this employment with the
Company or any Subsidiary, Executive believes he is being asked to engage in
work that will, or will be likely to, jeopardize any confidentiality or other
obligations Executive may have to former employers, Executive shall immediately
advise the Board so that Executive's duties can be modified appropriately.
(c) Executive represents and warrants to the Company that
Executive took nothing with him which belonged to any former employer when
Executive left his prior position and that Executive has nothing that contains
any information which belongs to any former employer. If at any time Executive
discovers this is incorrect, Executive shall promptly return any such materials
to Executive's former employer. The Company does not want any such materials,
and Executive shall not be permitted to use or refer to any such materials in
the performance of Executive's duties hereunder.
6. Intellectual Property, Inventions and Patents. Executive
acknowledges that all discoveries, concepts, ideas, inventions, innovations,
improvements, developments, methods, designs, analyses, drawings, reports,
patent applications, copyrightable work and mask work (whether or not including
any confidential information) and all registrations or applications related
thereto, all other proprietary information and all similar or related
information (whether or not patentable) which relate to the Company's or any of
its Subsidiaries' actual or anticipated business, research and development or
existing or future products or services and which are conceived, developed or
made by Executive (whether above or jointly with others) while employed by the
Company or its predecessors and its Subsidiaries ("Work Product"), belong to
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the Company or such Subsidiary. Executive shall promptly disclose such Work
Product to the Board and, at the Company's expense, perform all actions
reasonably requested by the Board (whether during or after the Employment
Period) to establish and confirm such ownership (including, without limitation,
assignments, consents, powers of attorney and other instruments).
7. Non-Compete, Non-Solicitation.
(a) In further consideration of the compensation to be paid to
Executive hereunder, Executive acknowledges that during the course of his
employment with the Company and its Subsidiaries he shall become familiar, and
during his employment with the predecessors of the Company and its Subsidiaries
he has become familiar, with the Company's trade secrets and with other
Confidential Information concerning the Company and its Subsidiaries (and their
respective predecessor companies) and that his services have been and shall be
of special, unique and extraordinary value to the Company and its Subsidiaries,
and therefore, Executive agrees that, during the Employment Period and
thereafter until the end of the Noncompete Period, he shall not directly or
indirectly own any interest in, manage, control, participate in, consult with,
render services for, or in any manner engage in any Competing Business within
any geographical area in which the Company or its Subsidiaries engage or plan to
engage in such businesses. Nothing herein shall prohibit Executive from being a
passive owner of not more than 2% of the outstanding stock of any class of a
corporation which is publicly traded, so long as Executive has no active
participation in the business of such corporation. For purposes of this
paragraph, "Competing Business" means any business activity involving the
wholesale distribution of after market specialty automobile parts.
(b) During the Noncompete Period, Executive shall not directly
or indirectly through another person or entity (i) induce or attempt to induce
any executive of the Company or any Subsidiary to leave the employ of the
Company or such Subsidiary, or in any way interfere with the relationship
between the Company or any Subsidiary and any executive thereof, (ii) hire any
person who was an executive of the Company or any Subsidiary at any time within
the one year period before Employee's termination from employment or (iii)
induce or attempt to induce any customer, supplier, licensee, licensor,
franchisee or other business relation of the Company or any Subsidiary to cease
doing business with the Company or such Subsidiary, or in any way interfere with
the relationship between any such customer, supplier, licensee or business
relation and the Company or any Subsidiary.
(c) If, at the time of enforcement of this Section 7, a court
shall hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law. Executive acknowledges that the restrictions
contained in this Section 7 are reasonable and that he has reviewed the
provisions of this Agreement with his legal counsel.
(d) In the event of the breach or a threatened breach by
Executive of any of the provisions of this Section 7, the Company would suffer
irreparable harm, and in addition and supplementary to other rights and remedies
existing in its favor, the Company shall be entitled to specific performance
and/or injunctive or other equitable relief from a court of
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competent jurisdiction in order to enforce or prevent any violations of the
provisions hereof (without posting a bond or other security).
8. Company's Obligations. Notwithstanding anything in this Agreement
to the contrary, the Company shall have the right to satisfy any obligation
owing to Executive hereunder (including, without limitation, any payment
obligation) by causing Keystone or any other Subsidiary of the Company to
satisfy such obligation on behalf of the Company. In the event the Company fails
to, or elects not to, satisfy any obligation owing hereunder to Executive,
Executive shall have the right to seek satisfaction of such right against
Keystone or any other Subsidiary of the Company.
9. Executive's Representations. Executive hereby represents and
warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Executive do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, (ii) Executive is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Executive, enforceable in accordance with
its terms. EXECUTIVE HEREBY ACKNOWLEDGES AND REPRESENTS THAT HE HAS CONSULTED
WITH INDEPENDENT LEGAL COUNSEL REGARDING HIS RIGHTS AND OBLIGATIONS UNDER THIS
AGREEMENT AND THE TERMS OF THE RELEASE ATTACHED AS EXHIBIT A AND THAT HE FULLY
UNDERSTANDS THE TERMS AND CONDITIONS CONTAINED HEREIN AND THEREIN.
10. Survival. This Agreement survives and continues in full force in
accordance with its terms notwithstanding the expiration or termination of the
Employment Period.
11. Notices. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, sent by reputable overnight
courier service or mailed by first class mail, return receipt requested, to the
recipient at the address below indicated:
Notices to Executive:
Xxxxxx X. Vor Broker
c/o Keystone Automotive Operations, Inc.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Notices to the Company:
Keystone Automotive Holdings, Inc.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Board of Directors
Fax: (000) 000-0000
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With copies to:
Xxxx Capital NY, LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxx
Fax: (000) 000-0000
Xxxxxxxx & Xxxxx, LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx xxx Xxxxx
Fax: (000) 000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so
delivered, sent or mailed.
12. Complete Agreement. This Agreement, that certain Contribution
Agreement, dated as of the date hereof, by and among the Company, Executive and
the other investors parties thereto, the Company's 2003 Executive Stock Option
Plan adopted as of the date hereof and any option agreement between the Company
and Executive issued thereunder, and those other documents expressly referred to
herein embody the complete agreement and understanding among the parties hereto
and supersede and preempt any prior understandings, agreements or
representations by or among the parties hereto, written or oral, which may have
related to the subject matter hereof in any way.
13. Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
14. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive, the Company and their
respective heirs, successors and assigns; provided that the services provided by
the Executive under this Agreement are of a personal nature and rights and
obligations of the Executive under this Agreement shall not be assignable.
15. Choice of Law. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the Commonwealth of Pennsylvania, without giving effect to any
choice of law or conflict of law rules or provisions, whether of the
Commonwealth of Pennsylvania or otherwise, and the parties hereto hereby
irrevocably submit to the jurisdiction of the courts of the Commonwealth of
Pennsylvania.
16. Amendment and Waiver. The provisions of this Agreement may be
amended or waived only with the prior written consent of the Company (as
approved by the Board) and Executive, and no course of conduct or course of
dealing or failure or delay by any
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party hereto in enforcing or exercising any of the provisions of this Agreement
(including, without limitation, the Company's right to terminate the Employment
Period for Cause) shall affect the validity, binding effect or enforceability of
this Agreement or be deemed to be an implied waiver of any provision of this
Agreement.
17. Key Man Life Insurance. The Company may apply for and obtain and
maintain a key man life insurance policy in the name of the Executive together
with other executives of the Company in an amount deemed sufficient by the
Board, the beneficiary of which shall be the Company. The Executive shall submit
to physical examinations and answer reasonable questions in connection with the
application and, if obtained, the maintenance of, as may be required, such
insurance policy.
18. Executive's Cooperation. During the Employment Period and
thereafter, Executive shall cooperate with the Company and its Subsidiaries in
any internal investigation or administrative, regulatory or judicial proceeding
as reasonably requested by the Company (including, without limitation, Executive
being available to the Company upon reasonable notice for interviews and factual
investigations, appearing at the Company's request to give testimony without
requiring service of a subpoena or other legal process, volunteering to the
Company all pertinent information and turning over to the Company all relevant
documents which are or may come into Executive's possession, all at times and on
schedules that are reasonably consistent with Executive's other permitted
activities and commitments). In the event the Company requires Executive's
cooperation in accordance with this section after the termination of the
Employment Period, the Company shall reimburse Executive for all of his
reasonable costs and expenses incurred, in connection therewith, plus pay
Executive a reasonable amount per day for his time spent.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
KEYSTONE AUTOMOTIVE HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
/s/ Xxxxxx X. Vor Broker
----------------------------------------
XXXXXX X. VOR BROKER
Exhibit A
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RELEASE AND NON-DISPARAGEMENT AGREEMENT
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I, [_________________], in consideration of and subject to the
performance by ________________________, a ________________________ (together
with its subsidiaries, the "Company"), of its material obligations under the
Employment Agreement, dated as of [_________________] (the "Agreement"), do
hereby release and forever discharge as of the date hereof the Company and all
present and former directors, officers, agents, representatives, Executives,
successors and assigns of the Company and its direct or indirect owners
(collectively, the "Released Parties") to the extent provided below.
1. Except as provided in paragraph 2 below, I knowingly and voluntarily
release and forever discharge the Released Parties from any and all claims,
controversies, actions, causes of action, cross-claims, counter-claims,
demands, debts, compensatory damages, liquidated damages, punitive or
exemplary damages, other damages, claims for costs and attorneys' fees, or
liabilities of any nature whatsoever in law and in equity, both past and
present (through the date hereof) and whether known or unknown, suspected,
or claimed against any of the Released Parties which I, or any of my heirs,
executors, administrators or assigns, may have, which arise out of or are
connected with my employment with, or my separation from, the Company
(including, but not limited to, any allegation, claim or violation, arising
under: Title VII of the Civil Rights Act of 1964, as amended; the Civil
Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as
amended (including the Older Workers Benefit Protection Act); the Equal Pay
Act of 1963, as amended; the Americans with Disabilities Act of 1990; the
Family and Medical Leave Act of 1993; the Civil Rights Act of 1866, as
amended; the Worker Adjustment Retraining and Notification Act; the
Employee Retirement Income Security Act of 1974; any applicable Executive
Order Programs; the Fair Labor Standards Act; or their state or local
counterparts; or under any other federal, state or local civil or human
rights law, or under any other local, state, or federal law, regulation or
ordinance; or under any public policy, contract or tort, or under common
law; or arising under any policies, practices or procedures of the Company;
or any claim for wrongful discharge, breach of contract, infliction of
emotional distress, defamation; or any claim for costs, fees, or other
expenses, including attorneys' fees incurred in these matters) (all of the
foregoing collectively referred to herein as the "Claims").
2. I agree that this Release does not waive or release any rights or claims
that I may have under: the Age Discrimination in Employment Act of 1967
which arise after the date I execute this Release; claims for enforcement
of Section 4(b) of the Agreement; claims for benefits under any employee
benefit plan maintained by the Company; claims for indemnification and
defense as deferred in Section 3(h); or claims for unemployment or worker's
compensation as provided by law.
3. I acknowledge and intend that this Release shall be effective as a bar and
shall serve as a complete defense to each and every one of the Claims and
that it shall be given full force and effect according to each and all of
its express terms and provisions, including those relating to unknown and
unsuspected Claims (notwithstanding any state statute that
A-1
expressly limits the effectiveness of a release of unknown, unsuspected and
unanticipated Claims), if any, as well as those relating to any other
Claims hereinabove mentioned or implied.
4. I represent that I have not made any assignment or transfer of any Claim. I
agree that neither this Release, nor the furnishing of the consideration
for this Release, shall be deemed or construed at any time to be an
admission by the Company or any Released Party of any improper or unlawful
conduct. I agree that this Release is confidential and agree not to
disclose any information regarding the terms of this Release, except to my
immediate family and any tax, legal or other counsel I have consulted
regarding the meaning or effect hereof or as required by law, and I will
instruct each of the foregoing not to disclose the same to anyone.
5. Each provision of this Release shall be interpreted in such manner as to be
effective and valid under applicable law and any provision of this Release
held to be invalid, illegal or unenforceable in any respect shall be
severable. This Release cannot be amended except in a writing duly executed
by the Company and me.
6. The Company (meaning, solely for this purpose, the Company's directors and
executive officers and other individuals authorized to make official
communications on the Company's behalf) will not disparage Executive or
Executive's performance or otherwise take any action which could reasonably
be expected to adversely affect Executive's personal or professional
reputation. Similarly, Executive will not disparage Company or any of the
directors and executives, officers and other individuals authorized to make
official communications on the Company's behalf or otherwise take any
action which could reasonably be expected to adversely affect the personal
or professional reputation of the Company or any of its directors,
executive officers of other individuals authorized to make official
communications on the Company's behalf.
I UNDERSTAND THAT I HAVE 21 DAYS AFTER THE EXECUTION OF THIS RELEASE TO REVOKE
IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE
REVOCATION PERIOD HAS EXPIRED;
Keystone Automotive Holdings, Inc.
DATE:
-------------------- ----------------------------------------
By:
-----------------------------------
A-2
Exhibit B
---------
Certain Perquisites
-------------------
B-1
