EXHIBIT 10.10
EXECUTIVE EMPLOYMENT AGREEMENT
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This Executive Employment Agreement is entered into by and between
FirstAmerica Automotive, Inc. (the "Company") and Xxxxxx Xxxxxxx ("Executive")
this 1st day of July, 1997 (the "Effective Date").
1. Position and Duties: The Company does hereby employ Executive as
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Chairman of the Board and Director of Acquisitions of the Company during the
Initial Term (and a Renewal Term, if any) of this Agreement. Executive does
hereby accept and agree to such employment. Subject to the supervision and
control of the Board of Directors of the Company (the "Board"), Executive shall
do and perform all services and acts necessary or advisable to fulfill the
duties and responsibilities of his position and shall render such services on
the terms set forth herein. In addition, Executive shall have such other
executive and managerial powers and duties with respect to the Company as may be
assigned to him by the Board. During the Initial Term (and a Renewal Term, if
any), Executive shall devote his full working time, attention and efforts to the
Company and its affiliates; provided, however, nothing in this Agreement shall
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preclude Executive from pursuing those ventures or business activities described
in Schedule 1, subject to approval by the Board, and so long as such efforts
does not interfere with Executive's duties and responsibilities as provided
herein or otherwise involve more than [10]% of Executive's daily work
activities. Executive's principal place of employment shall be the Company's
principal executive offices.
As Chairman of the Company's Board, Executive shall be subject to the
provisions of the Company's bylaws and all applicable general corporation laws
relative to his position on the Board. In addition to the Company's bylaws, as a
member of the Board, Executive shall also be subject to the statement of powers,
both specific and general, as set forth in the Company's Articles of
Incorporation.
2. Term of Agreement: The term of this Agreement shall commence on the
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Effective Date and shall continue for a period of five (5) years thereafter
("Initial Term"), unless Executive's employment and this Agreement are earlier
terminated pursuant to Section 5, below, or extended by mutual agreement of the
parties; provided, however, the term of this Agreement shall be automatically
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renewed for successive periods of one year (each a "Renewal Term"), unless
either party gives the other written notice of termination or a desire to change
the provisions herein on or before the thirtieth (30th) day prior to the
expiration of the Initial Term or any Renewal Term.
3. Compensation: During the Initial Term (and a Renewal Term, if any),
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Executive shall be compensated by the Company for his services as follows:
(a) Salary: Executive shall be paid a monthly salary of $20,833.33
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($250,000.00 per year), subject to applicable withholding, in accordance with
the Company's normal payroll procedures (the "Base Salary"). Executive's Base
Salary shall be reviewed annually and adjusted as determined by the Board.
(b) Benefits: Executive shall have the right, on the same basis as
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other members of senior management of the Company, to participate in and to
receive benefits under any of the Company's employee benefit plans, including
the medical, dental, vision and disability group insurance plans, if any.
Executive shall also be entitled to participate in any retirement plan
maintained by the Company for which he is eligible in accordance with its terms.
(c) Expense Reimbursements: Upon receipt of proper documentation
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establishing the amount of such expenses, the Company shall reimburse Executive
for any reasonable business expenses incurred as provided in the Company's
policy on this subject applicable to the Company's senior management.
(d) Car Allowance: In addition to reimbursement of expenses described
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in subsection 3(c), Executive shall receive [$600.00] per month as an allowance
for car expenses as provided in the Company's policy on this subject applicable
to the Company's senior management.
(e) Performance Bonus. Executive shall be eligible to earn a
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performance bonus of up to fifty percent (50%) of the Base Salary for the then-
current fiscal year (the "Performance Bonus"). The Performance Bonus shall be
determined on the following basis:
(i) Fifty percent of the Performance Bonus shall be considered
earned upon the Company's meeting such annual performance objectives as shall be
established by the Compensation Committee of the Board no later than ten weeks
following the beginning of the Company's then-current fiscal year. For Fiscal
Year 1997, the Compensation Committee of the Board shall establish such
performance objectives within four weeks of the date of the Effective Date; and
(ii) Fifty percent of the Performance Bonus shall be awarded
strictly in the Board's discretion.
The Performance Bonus shall be paid within thirty days of receipt of
certification by the Compensation Committee of the Board of Executive's
attainment of the pre-established goals under subsection 3(e)(i), and said bonus
shall not accrue until the conclusion of the fiscal year for which such bonus is
to be paid.
4. Benefits Upon Executive's Voluntary Resignation, Death or Disability:
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In the event that Executive voluntarily resigns from his employment with the
Company, or in the event that Executive's employment terminates as a result of
his death or disability, Executive shall be entitled to no compensation or
benefits from the Company other than those earned under section 3 through the
date of such termination or resignation.
5. Termination for "Cause": If Executive's employment is terminated by
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the Company for Cause, Executive shall be entitled to no further compensation or
benefits from the Company hereunder or otherwise except for such compensation
and benefits that are accrued but unpaid as of the date of Executive's
termination for cause. In
particular, Executive shall be entitled to no portion of any Performance Bonus
described in Section 3(e), above. For purposes of this Section 5, a termination
for "Cause" occurs if Executive's employment and this Agreement are terminated
due to: (i) Executive's theft, dishonesty, or falsification of any employment or
Company records; (ii) Executive's breach of any fiduciary duty or duty of
loyalty to the Company; (iii) Executive's commission of any crime involving a
felony offense or a criminal offense involving moral turpitude; (iv) Executive's
material breach of this Agreement; or (v) any intentional act by Executive which
has a material detrimental effect on the Company's reputation or business;
provided, however, if the Company seeks to terminate Executive's employment for
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Cause for the reason or reasons set forth in subsection 5(iv), prior to any such
termination, the Company shall give Executive thirty (30) days written notice of
its intention to terminate Executive's employment and this Agreement and inform
Executive regarding the nature of the acts or omissions that give rise to the
Company's proposed termination for Cause and allow Executive during this thirty
day period to cure, eliminate, remedy or otherwise correct such acts or
omissions, if such acts or omissions are capable of being cured, eliminated,
remedied or corrected; provided further, however, if the acts or omissions that
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give rise to the-Company's proposed termination for Cause cannot be cured,
eliminated, remedied or otherwise corrected during the thirty day time-period,
the Company may terminate Executive's employment and this Agreement for Cause
for the reasons set forth in subsection 5(iv) immediately and without notice or
an opportunity to cure.
6. Confidential Information and Nondisclosure Agreement: Executive
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acknowledges that during his employment with the Company, he shall be exposed to
or be given access to proprietary information, trade secrets, and other
confidential materials of the Company, including, without limitation, lists of
customers, suppliers and vendors, sales and marketing strategies, and financial
information including past, present and future financial performance and
projections thereof ("Confidential Information"). Executive agrees, without
limitation in time or until such information shall become public other than by
Executive's unauthorized disclosure, to maintain the confidentiality of the
Confidential Information and to refrain from divulging, disclosing, or otherwise
using in any respect the Confidential Information to the detriment of the
Company or its subsidiaries, affiliates, successors or assigns, or for any other
purpose or no purpose. Executive further agrees that, as condition precedent to
this Agreement and as a condition precedent to his continued receipt of benefits
hereunder, he shall sign the Company's [Proprietary Information/Confidential
Information and Conflicts of Interest Agreement] and he shall adhere to each of
the covenants and agreements contained therein.
7. Return of Company Property. Immediately upon the termination of
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Executive's employment (at the end of the Initial Term or any Renewal Term, or
upon the early termination of Executive's employment by the Company or
Executive), Executive shall return to the Company all of its property,
equipment, documents, records, lists, files and any and all other Company
materials including, without limitation, computerized or electronic information,
that is in Executive's possession (the "Company Property") by delivering the
Company Property to the Company's principal executive offices on or before the
date of such termination. Unless otherwise agreed by
the Company in writing, Executive shall not retain any Company Property or any
copies thereof.
8. Dispute Resolution: Except as necessary for either party to
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specifically enforce, or enjoin the breach of, the Combined Agreements (as
defined in Section 11), and to the extent such equitable remedies are otherwise
available, the parties agree that any dispute that arises out of or relates in
any way to this Agreement or Executive's employment with the Company, the
termination of that employment, or any and all other disputes by and between the
parties, shall be submitted to binding arbitration in San Francisco, California,
according to the National Employment Dispute Resolution Rules and procedures of
the American Arbitration Association that are then in effect. This arbitration
obligation extends to any and all claims that may arise by and between the
parties and expressly extends to any claims asserted under any State
Constitution, the United States Constitution, and applicable federal, state and
local law including, without limitation, state fair employment laws, federal
equal employment opportunity laws, federal and state labor statutes and
regulations, including, but not limited to, the Civil Rights Act of 1964, as
amended, the Fair Labor Standards Act, as amended, the National Labor Relations
Act, as amended, the Labor-Management Relations Act, as amended, the Worker
Retraining and Notification Act of 1988, as amended, the Americans with
Disabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as
amended, the Employee Retirement Income Security Act of 1974, as amended, the
Age Discrimination in Employment Act of 1967, as amended, and any similar State
laws.
9. Attorneys' Fees: The prevailing party shall be entitled to recover his
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or its attorneys' fees and costs incurred in any formal proceeding brought to
enforce any right arising out of this Agreement.
10. Interpretation: Executive and the Company agree that this Agreement
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shall be interpreted in accordance with and governed by the laws of the State of
California without giving effect to any conflict of law principles.
11. Entire Agreement: This Agreement and the [Proprietary
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Information/Confidential Information and Conflicts of Interest Agreement]
(together the "Combined Agreements") constitute the entire agreement between
Executive and the Company regarding the subject matter hereof. The Combined
Agreements supersede all prior negotiations, representations or agreements
between Executive and the Company, whether written or oral, concerning the
subject matters described therein.
12. Modification: This Agreement may only be modified or amended by a
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supplemental written agreement signed by Executive and the Company.
13. Assignment; Successors. The Executive's rights and obligations
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provided for in this Agreement are personal in nature and Executive shall not
assign or transfer this Agreement or any rights or obligations hereunder. The
Company shall be entitled to assign or transfer its rights and delegate its
duties hereunder.
14. Survival. In the event of any termination of Executive's employment
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and this Agreement for any reason by Executive or the Company, Executive and/or
the
Company, as the case may be, nevertheless shall continue to be bound by the
terms and conditions set forth in Sections 6 through 8 herein and all of the
terms and conditions set forth in the [Proprietary Information/Confidential
Information and Conflicts of Interest Agreement].
15. Headings. Section headings in this Agreement are included herein for
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convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
16. Construction of Agreement. The parties acknowledge that this
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Agreement was jointly prepared by them, by and through their respective legal
counsel, and any uncertainty or ambiguity existing herein shall not be
interpreted against any one of the parties.
17. Notices. All notices and other communications under this Agreement
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shall be in writing and shall be given by telefax or first-class mail, certified
or registered with return receipt requested, and shall be deemed to have been
duly given three (3) days after mailing or twenty-four (24) hours after
transmission of a telefax to the respective persons named below.
If to the Company: FirstAmerica Automotive, Inc.
000 Xxx Xxxxxxxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
and
Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
If to Executive: 0000 Xxxxxxx Xxx.
Xxxxxxx, Xxxxxxxxxx 00000
Either party may change such party's address for notices by notice duly
given pursuant hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first written above.
Executive FirstAmerica Automotive, Inc.
/s/ Xxxxxx Xxxxxxx By: /s/
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Xxxxxx Xxxxxxx
Its: President
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