EMPLOYMENT AGREEMENT
Exhibit
10.37
AGREEMENT
(the “Agreement”), dated as of March 31, 2006, between Advance Auto Parts, Inc.
(“Advance”), a Delaware corporation, and Advance Stores Company, Inc.
(“Stores”), a Virginia corporation (collectively, the “Company”), and
______________ (the “Executive”).
The
Company and the Executive agree as follows:
1. Position;
Term of Employment.
Subject
to the terms and conditions of this Agreement, the Company agrees to employ
the
Executive, and the Executive agrees to serve the Company, as its _______________
(“Executive’s Position”). The parties intend that the Executive shall continue
to so serve in this capacity throughout the Term (as such term is defined
below).
Subject
to earlier
termination under the provisions of Paragraph 4 below, the term of Executive’s
employment by the Company pursuant to this Agreement shall commence on March
31,
2006 and shall continue through March 31, 2007 and then renew for an additional
one year term on March 31, 2007 and each subsequent annual anniversary thereof
unless at least three (3) months prior to such renewal or a subsequent annual
anniversary thereof either Executive or Company gives to the other written
notice that the term shall not be renewed at such annual anniversary, in which
case the term shall expire on the day before such subsequent anniversary (the
“Term”).
2. Duties.
The
Executive shall perform faithfully, competently, diligently, exclusively and
to
the best of his ability the duties and responsibilities of Executive’s Position
and such other duties and responsibilities reasonably consistent with the
Executive’s Position as the Company may request from time to time. The Executive
shall observe and conform to the applicable policies and directives promulgated
from time to time by the Company and its Board of Directors or by any superior
officer(s) of the Company. The Executive shall devote his full time and
undivided professional attention during normal business hours to the business
and affairs of the Company and its subsidiaries and affiliates, if any (jointly
and severally, “Related Entities”), except for holidays and vacations consistent
with applicable Company policy and except for illness or incapacity. Nothing
in
this Agreement shall preclude the Executive from serving as a director or a
member of an advisory committee of any organization involving no conflict of
interest with the Company and its Related Entities (subject to prior approval
of
his appointment to such position in certain cases as provided below), from
engaging in charitable and community activities, and from managing his personal
investments, provided that such activities do not interfere with the performance
of his duties and responsibilities as required by this Agreement. The Executive
shall not accept any proposed appointment to serve as a director, manager,
general partner, trustee or the equivalent of any for-profit business
organization without the prior approval of the Chief Executive Officer. The
Executive shall not accept any appointment to serve as a director of a public
company without the prior approval of the Nominating and Corporate Governance
Committee of Advance’s Board of Directors. The Executive shall report directly
to the individual designated by the Company. The services to be performed by
Executive hereunder may be changed from time to time at the discretion of the
Company. The Company shall retain full direction and control of the means and
methods by which Executive performs his services and of the place or places
at
which such services are to be rendered.
3. Compensation.
(a) Salary.
During
the Term, the Company shall pay to the Executive a salary of $______________per
annum, payable consistent with the Company’s standard payroll practices then in
effect. Such salary shall be reviewed by the Compensation Committee of Advance’s
Board of Directors (hereinafter the “Compensation Committee”) at least annually,
with any changes taking into account, among other factors, Company and
individual performance.
(b) Bonus.
The
Executive shall receive a bonus in such amounts and based upon achievement
of
such corporate and individual performance and other criteria as shall be
approved by the Compensation Committee from time to time, which bonus shall
be
paid in a manner consistent with the Company’s bonus practices then in
effect.
(c) Benefit
Plans.
During
the Term, the Executive shall be entitled to participate in all retirement
and
employment benefit plans of the Company that are generally available to senior
executives of the Company. Such participation shall be pursuant to the terms
and
conditions of such plans, as the same shall be amended from time to time.
(d) Business
Expenses.
During
the Term, the Company shall, in accordance with policies then in effect with
respect to payments of business expenses, pay or reimburse the Executive for
all
reasonable out-of-pocket travel and other expenses (other than ordinary
commuting expenses) incurred by the Executive in performing services hereunder.
All such expenses shall be accounted for in such reasonable detail as the
Company may require.
4. Termination.
(a) Death.
In the
event of the death of the Executive during the Term, his employment shall be
automatically terminated as of the date of death and a lump sum amount,
equivalent to his annual salary, shall be paid to his designated beneficiary,
or
in the absence of such designation, to the estate or other legal representative
of the Executive. Except in accordance with the terms of the Company’s benefit
programs and other plans then in effect, after his date of death, Executive
shall not be entitled to any other compensation or benefits from the Company
or
hereunder.
(b) Disability.
In the
event of the Executive’s Disability as hereinafter defined, the employment of
the Executive may be terminated by the Company, effective upon the Disability
Termination Date (as defined below). In such event, the Company shall pay the
Executive an amount equivalent to thirty percent (30%) of the Executive’s base
salary for a one year period commencing on the Disability Termination Date.
Otherwise, after the Disability Termination Date, except in accordance with
the
Company’s benefit programs and other plans then in effect, Executive shall not
be entitled to any compensation or benefits from the Company or
hereunder.
“Disability,”
for
purposes of this Agreement, shall mean the Executive’s incapacity due to
physical or mental illness causing his complete and full-time absence from
his
duties, as defined in Paragraph 2, for either a consecutive period of more
than
six months or at least
2
180
days
within any 270-day period. Any determination of the Executive’s Disability made
in good faith by the Board shall be conclusive and binding on the Executive,
unless within 10 days after written notice to Executive of such determination,
Executive elects by written notice to Company to challenge such determination,
in which case the determination of Disability shall be made by arbitration
pursuant to Section 10 below (provided that Company shall not be required to
provide Executive any compensation or benefits after the determination by the
Board unless the arbitration results in a determination that Executive is not
disabled, in which case the Company shall pay to Executive within 10 days after
such arbitration decision all compensation due through the date of such
arbitration decision, and further provided that Company shall not be deemed
to
have breached its obligations related to such compensation and benefits under
this Agreement if it makes such payment within 10 days after such arbitration
decision). The Disability Termination Date shall be the date on which the Board
makes such determination of Executive’s Disability unless the arbitration, if
any, results in a determination that Executive is not disabled.
(c) Termination
by the Company for Due Cause.
Nothing
herein shall prevent the Company from terminating the Executive’s employment at
any time for Due Cause. The Executive shall continue to receive the salary
provided for in this Agreement only through the period ending with the date
of
such termination. Any rights and benefits he may have under employee benefit
plans and programs of the Company shall be determined in accordance with the
terms of such plans and programs. Except as provided in the two immediately
preceding sentences, after termination of employment for Due Cause, Executive
shall not be entitled to any compensation or benefits from the Company or
hereunder.
The
term “Due Cause,”
as used herein, shall mean (i) a material violation by the Executive of the
Executive’s obligations hereunder or a directive from the Board of Directors or
the Executive’s superior (1) which is willful and deliberate on the Executive’s
part, (2) which is not due to the Disability of the Executive (within the
meaning of Paragraph 4(b) but without regard to the requirement that it continue
for more than six months or 180 days within a 270-day period) and (3) which,
if
curable, has not been cured by the Executive within 15 business days after
notice to the Executive specifying the nature of such violations; (ii) a
material violation by the Executive of the Executive’s Loyalty Obligations as
provided in Section 19; (iii) an act or acts of dishonesty on the Executive’s
part which are intended to or do result in either the Executive’s personal
enrichment or material adverse affect upon the Company’s assets, business,
prospects or reputation; (iv) conviction of a felony involving fraud, breach
of
trust, or misappropriation; or, (v) a determination by the Board of Directors
of
the Company that Executive is addicted to a Controlled Substance (as defined
in
21 U.S.C.A. Section 812 and 844) which has not been obtained directly or
pursuant to a valid prescription from a licensed medical doctor acting within
the course of his professional practice.
(d) Termination
by the Company Other than for Due Cause, Death or
Disability.
The
foregoing notwithstanding, the Company may terminate the Executive’s employment
for any or no reason, as it may deem appropriate in its sole discretion and
judgment; provided,
however,
that in
the event such termination is not due to death, Disability or Due Cause, the
Executive shall (i) be entitled to a Termination Payment as hereinafter defined
and (ii) be sent written notice stating the termination is not due to death,
Disability or Due Cause.
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If
the Company
terminates the Executive’s employment for other than death, Disability or Due
Cause prior to the expiration of the Term, the term “Termination Payment” shall
mean a cash payment equal to the sum of (i) an amount equal to the Executive’s
annual salary, as in effect immediately prior to such termination (the
“Termination Salary Payment”), and (ii) a pro rata portion of any bonus that
would have been payable to the Executive under Paragraph 3(b) with respect
to
all periods prior to termination of employment, provided the criteria for such
bonus other than the Executive’s continued employment are satisfied (the
“Termination Bonus Payment”). The Termination Salary Payment shall be payable in
26 equal installments beginning on the next regularly scheduled pay day
following the date of termination. The Termination Bonus Payment shall be paid
at the time such bonus payments are made to other executives. In addition,
the
Company will pay the normal employer portion of the premium cost for the
Executive to receive any group health coverage that the Company provides under
Section 4980B of the Internal Revenue Code of 1986 (“COBRA Coverage”) for one
(1) year following Executive’s termination of employment. Following the
Executive’s termination of employment under this Paragraph 4(d), the Executive
will have no further obligation to provide services to the Company pursuant
to
Paragraphs 1 and 2. Except for the Termination Payment and as otherwise provided
in accordance with the terms of the Company’s benefit programs and plans then in
effect, after termination by the Company of employment for other than death,
Disability or Due Cause, Executive shall not be entitled to any other
compensation or benefits from the Company or hereunder.
(e) Constructive
Termination of Employment by the Company Without Due
Cause.
Termination by the Company without Due Cause under Paragraph 4 (d) shall be
deemed to have occurred if the Executive elects to terminate his employment
as a
result of: (i) a failure by the Company to pay Executive any compensation due
Executive (which failure is not cured within 10 days after written notice
thereof by Executive to the Chief Executive Officer, which notice shall
specifically describe such alleged failure and which failure does not recur);
(ii) the assignment to Executive of any duties materially inconsistent (except
in the nature of a promotion or lateral move) with the position in the Company
that he held immediately prior to the reassignment or a substantial adverse
alteration in the nature or status of his position or responsibilities from
those in effect immediately prior to the reassignment; or (iii) The Company’s
requiring Executive to be based more than 60 miles from the Company’s office at
which he was principally employed immediately prior to the date of the
relocation.
(f) Voluntary
Termination.
In the
event that the Executive terminates his employment at his own volition prior
to
the expiration of the Term (except as provided in Paragraph 4(e) above), such
termination shall constitute a “Voluntary Termination” and in such event the
Executive shall be limited to the same rights and benefits as provided in
connection with a termination for Due Cause under Paragraph 4 (c)
above.
(g) Election
Not to Renew.
An
election by either the Company or Executive pursuant to Paragraph 1 above not
to
renew the Term shall not be deemed a termination of employment by either party.
After the expiration of the Term because of either the Company’s or Executive’s
election not to renew, except in accordance with the terms of the Company’s
benefit plans and programs then in effect, Executive shall not be entitled
to
any other compensation or benefits from the Company or hereunder.
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(h) Notice
of Termination, Resignation and Release.
Any
termination under Section 4(b) by the Company for Disability or Section 4(c)
for
Due Cause or by the Executive pursuant to a constructive termination under
Section 4(e) shall be communicated by Notice of Termination to the other party
thereto given in accordance with Paragraph 9. For purposes of this Agreement,
a
“Notice of Termination” means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive’s employment under the provision so indicated and
(iii) if the termination date is other than the date of receipt of such Notice,
specifies the termination date (which date shall not be prior to the date of
such notice or more than 15 days after the giving of such Notice).
Notwithstanding
anything in this Agreement to the contrary, in order to be eligible to receive
any payments or benefits hereunder as a result of the termination or expiration
of the Executive’s employment, in addition to fulfilling all other conditions
precedent to such receipt, the Executive (if he has the legal capacity to do
so
and if not, his legal representative) must within 10 days after the termination
date (i) resign as a member of the Board, if applicable, and as an officer,
manager and employee of the Company and its Related Entities and (ii) on behalf
of the Executive and his estate, heirs and representatives, execute a release
in
form and substance reasonably satisfactory to the Company and its legal counsel
releasing the Company, its Related Entities and each of the Company’s and such
Related Entities’ respective officers, directors, employees, members, managers,
agents, independent contractors, representatives, shareholders, successors
and
assigns (all of which persons and entities shall be third party beneficiaries
of
such release with full power to enforce the provisions thereof) from any and
all
claims related to any payments or benefits under Section 3 or 4 of this
Agreement related to the termination of Executive’s employment (provided that
Executive’s post-termination of employment obligations under Section 19 shall
cease upon the Company’s failure to make any such payments when due if within 15
days after written notice of such failure, the Company does not make the
required payment).
(i) Earned
and Accrued Payments.
The
foregoing notwithstanding, upon the termination of the Executive’s employment at
any time, for any reason, the Executive shall be paid all amounts that had
already been earned and accrued as of the time of termination, including but
not
limited to (i) pay for unused vacation accrued in accordance with the Company’s
vacation policy; (ii) any bonus that had been earned but not yet paid; and
(iii)
reimbursement for any business expenses accrued in accordance with Section
3(d).
(j) Employment
at Will. Executive
hereby agrees that Company may terminate his employment under this Section
4
without regard to: (i) any general or specific policies (written or oral) of
Company relating to the employment or termination of employment of its
employees; (ii) any statements made to Executive, whether oral or in any
document, pertaining to Executive’s relationship with Company; or (iii)
assignment of Due Cause by the Company.
5. Successors
and Assigns.
(a) Assignment
by the Company.
This
Agreement shall be binding upon and inure to the benefit of the Company or
any
corporation or other entity to which the Company may transfer all or
substantially all of its assets and business and to which the Company may assign
this Agreement, in which case the term “Company,” as used herein, shall mean
such corporation or other
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entity,
provided that no such assignment shall relieve the Company from any obligations
hereunder, whether arising prior to or after such assignment.
(b) Assignment
by the Executive.
The
Executive may not assign this Agreement or any part hereof without the prior
written consent of the Company; provided,
however,
that
nothing herein shall preclude the Executive from designating one or more
beneficiaries to receive any amount that may be payable following occurrence
of
his legal incompetency or his death and shall not preclude the legal
representative of his estate from assigning any right hereunder to the person
or
persons entitled thereto under his will or, in the case of intestacy, to the
person or persons entitled thereto under the laws of intestacy applicable to
his
estate. The term “beneficiaries,” as used in this Agreement, shall mean a
beneficiary or beneficiaries so designated to receive any such amount or, if
no
beneficiary has been so designated, the legal representative of the Executive
(in the event of his incompetency) or the Executive’s estate.
6. Governing
Law.
This
Agreement shall be governed by the laws of the Commonwealth of
Virginia.
7. Entire
Agreement.
This
Agreement contains all of the understandings and representations between
the
parties hereto pertaining to the matters referred to herein, and supersedes
all
undertakings and agreements, whether oral or in writing, previously entered
into
by them with respect thereto, including any previous employment, severance
and/or noncompetition agreements. This Agreement may only be modified by
an
instrument in writing.
8. Waiver
of Breach.
The
waiver by any party of a breach of any condition or provision of this Agreement
to be performed by such other party shall not operate or be construed to
be a
waiver of a similar or dissimilar provision or condition at the same or
any
prior or subsequent time.
9. Notices.
Any
notice to be given hereunder shall be in writing and delivered personally,
or
sent by certified mail, postage prepaid, return receipt requested, addressed
to
the party concerned at the address indicated below or to such other address
as
such party may subsequently give notice of hereunder in
writing:
If
to
the Company:
Advance
Stores Company, Incorporated
0000
Xxxxxxx Xxxx
Xxxxxxx,
XX 00000
Attn:
General Counsel
With
a
copy to:
Advance
Stores Company, Incorporated
0000
Xxxxxxx Xxxx
Xxxxxxx,
XX 00000
Attn:
Chief Executive Officer
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If
to
the Executive:
___________________
___________________
___________________
10. Arbitration.
Any
controversy or claim arising out of or relating to this Agreement, or any
breach
thereof, excepting only the enforcement of any Loyalty Obligations arising
under
Section 19 of this Agreement, shall be settled by arbitration in accordance
with
the rules of the American Arbitration Association then in effect in the
Commonwealth of Virginia and judgment upon such award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. The
board
of arbitrators shall consist of one arbitrator to be appointed by the Company,
one by the Executive, and one by the two arbitrators so chosen. The arbitration
shall be held at such place as may be agreed upon at the time by the parties
to
the arbitration. The cost of arbitration shall be borne as determined by
the
arbitrators.
11. Withholding.
Anything
to the contrary notwithstanding, all payments required to be made by the
Company
hereunder to the Executive or his estate or beneficiaries shall be subject
to
the withholding of such amounts relating to taxes as the Company may reasonably
determine it should withhold pursuant to any applicable law or regulation.
In
lieu of withholding such amounts, in whole or in part, the Company may,
in its
sole discretion, accept other provisions for payment of taxes and withholdings
as required by law, provided it is satisfied that all requirements of law
affecting its responsibilities to withhold have been
satisfied.
12. Deferred
Compensation.
Notwithstanding
anything herein to the contrary, this Agreement is intended to be operated
in
accordance with the requirements of Section 409A of the Internal Revenue
Code of
1986, as amended (the “Code”). In particular, and without limiting the
generality of the foregoing, in the event that the Company determines that
any
amounts that become payable hereunder fail to satisfy the requirements
of Code
Section 409A, then the payment of such amounts shall not be made pursuant
to the
payment schedules provided herein and instead the payment of such benefits
shall
be delayed or otherwise restructured to the minimum extent necessary so
that
such benefits are not subject to the provisions of Section 409A(a)(1) of
the
Code.
13. Severability.
In
the
event that any provision or portion of this Agreement shall be determined
to be
invalid or unenforceable for any reason, the remaining provisions or portions
of
this Agreement shall be unaffected thereby and shall remain in full force
and
effect to the fullest extent permitted by law.
14. Titles.
Titles
to
the paragraphs in this Agreement are intended solely for convenience and
no
provision of this Agreement is to be construed by reference to the title
of any
paragraph.
15. Legal
Fees.
Company
agrees to pay the reasonable fees and expenses of Executive’s legal counsel in
connection with the negotiation and execution of this Agreement, not to
exceed
$2,500.
16. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the
same
instrument.
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17. Amendment.
Except
as
provided in Section 12 above, this Agreement may not be modified or amended
except by written instrument signed by all parties
hereto.
18. Counsel.
This
Agreement has been prepared with the assistance of XxXxxxx Xxxx Xxxxxxx
Xxxxxxxx, a Professional Corporation, as counsel to the Company (“Counsel”),
after full disclosure of its representation of the Company and with the
consent
and direction of the Company and the Executive. The Executive has reviewed
the
contents of this Agreement and fully understands its terms. The Executive
acknowledges that he is fully aware of his right to the advice of counsel
independent from that of the Company, that Counsel has advised him of such
right
and disclosed to him the risks in not seeking such independent advice,
and that
he fully understands the potentially adverse interests of the parties with
respect to this Agreement. The Executive further acknowledges that neither
the
Company nor its Counsel has made representations or given any advice with
respect to the tax or other consequences of this Agreement or any transactions
contemplated by this Agreement to him, that he has been advised of the
importance of seeking independent counsel with respect to such consequences,
and
that he had obtained independent counsel with respect to such consequences.
By
executing this Agreement, the Executive represents that he has, after being
advised of the potential conflicts between him and the Company with respect
to
the future consequences of this Agreement, either consulted independent
legal
counsel or elected, notwithstanding the advisability of seeking such independent
legal counsel, not to consult with such independent legal
counsel.
19. Loyalty
Obligations.
The
Executive agrees that the following obligations (“Loyalty Obligations”) shall
apply in consideration of Executive’s employment by or continued employment with
the Company:
(a)
Confidential
Information.
(i) Company
Information.
Executive agrees at all times during the term of Executive’s employment and
thereafter, to hold in strictest confidence, and not to use (except for the
benefit of the Company to fulfill Executive’s employment obligations) or to
disclose to any person, firm or corporation without written authorization of
the
Board of Directors of the Company, any Confidential Information of the Company
or its subsidiary, affiliate or parent entities, if any (jointly and severally,
“Related Entities”). Executive agrees that “Confidential Information” means any
proprietary information, technical data, trade secrets or know-how in which
the
Company or Related Entities have an interest, including, but not limited to,
research, product or service plans, products, services, customer lists and
customers (including, but not limited to, vendors the Company or Related
Entities on whom Executive called, with whom Executive dealt or with whom
Executive became acquainted during the term of Executive’s employment), pricing,
costs, markets, summaries, marketing and other strategies, software,
developments, inventions, processes, formulas, technology, designs, drawings,
engineering, hardware configuration or marketing, financial or other business
information obtained by Executive or disclosed to Executive by the Company
or
Related Entities or any other person or entity during the term of Executive’s
employment with the Company either directly or indirectly in writing, orally
by
drawings, by observation of services, systems or other aspects of the business
of the Company or Related Entities or otherwise.
(ii) Third
Party Information.
Executive recognizes that the Company and Related Entities have received and
in
the future will receive from third parties their confidential
8
or
proprietary information subject to a duty on the part of the Company or Related
Entities to maintain the confidentiality of such information and to use it
only
for certain limited purposes. Executive agrees to hold all such confidential
or
proprietary information in the strictest confidence and not to disclose it
to
any person, firm or corporation or to use it except as necessary in carrying
out
Executive’s work for the Company consistent with the obligations of the Company
or Related Entities with such third party.
(b)
Conflicting
Employment.
Executive agrees that, during the term of Executive’s employment with the
Company, Executive will not engage in any other employment, occupation,
consulting or other business activity directly related to the business in which
the Company or Related Entities are now involved or become involved during
the
term of Executive’s employment. Nor will Executive engage in any other
activities that conflict with the business of the Company or Related Entities.
Furthermore Executive agrees to devote such time as may be necessary to fulfill
Executive’s obligations to the Company.
(c)
Returning
Company Property.
Executive agrees that, at the time of leaving the employ of the Company,
Executive will deliver to the Company (and will not keep in Executive’s
possession, recreate or deliver to anyone else) any and all devices, records,
data, notes, reports, proposals, lists, correspondence, specifications,
drawings, blueprints, sketches, materials, equipment, other documents or
property, or reproductions of any aforementioned items developed by Executive
or
others pursuant to or during Executive’s employment with the Company or
otherwise belonging to the Company or Related Entities and their respective
successors or assigns. In the event of the termination of Executive’s
employment, Executive agrees to sign and deliver the “Termination Certification”
attached hereto as Exhibit A.
(d) Notification
of New Employer.
In the
event that Executive leaves the employ of the Company, Executive hereby grants
consent to notification by the Company to Executive’s new employer (whether
Executive is employed as an employee, consultant, independent contractor,
director, partner, officer, advisor, executive or manager) about Executive’s
obligations under this Agreement.
(e) Non-Solicitation.
Executive agrees that while Executive is employed by the Company and for a
period of one (1) year immediately following the termination or expiration
of
Executive’s employment with the Company, Executive shall not directly or
indirectly, either on behalf of Executive or any other person or entity, (i)
solicit, induce, recruit or encourage any employee of the Company or Related
Entities or independent contractor of the Company or Related Entities who
provides services to or in behalf of the Company or Related Entities to leave
his, her or its employment or engagement with the Company or Related Entities,
or attempt to solicit, recruit, or take away any such employees or independent
contractors (or induce or encourage any such employee or independent contractor
to terminate its employment or engagement with the Company or Related Entities),
provided that after termination or expiration of Executive’s employment, this
provision shall only apply to those employees or independent contractors of
the
Company or Related Entities who were such at any time within 12 months prior
to
the date of such termination or expiration, (ii) interfere in any manner with
the contractual or employment relationship between the Company and Related
Entities and any employee, independent contractor, customer or supplier of
the
Company or Related Entities or cause any such employee, customer, independent
contractor or
9
supplier
to cease employment with, cease doing business with or reduce the amount of
business it does with the Company or Related Entities, provided that after
termination or expiration of Executive’s employment, this provision shall apply
only to the employees, independent contractors, customers or suppliers of
Company or Related Entities who were such at any time within 12 months prior
to
such termination or expiration, or (iii) whether as a direct solicitor or
provider of such services, or in a management or supervisory capacity over
others who solicit or provide such services, solicit or provide services that
fall within the definition of Restricted Activities to any customer of the
Company or Related Entities, provided that after the expiration or termination
of Executive’s employment, this provision shall only apply to those customers of
the Company or Related Entities who were such a customer at any time within
12
months prior to the termination or expiration of Executive’s employment with the
Company.
(f)
Covenants
Not to Compete.
For
purposes of this Agreement, the term “Non-Compete Period” shall mean a period
from the date hereof until, one (1) year immediately following the termination
or expiration of Executive’s employment with the Company. During the Non-Compete
Period, Executive covenants and agrees that Executive will not, directly or
indirectly, (i) own or hold, directly or beneficially, as a shareholder (other
than as a shareholder with less than 1% of the outstanding common stock of
a
publicly traded corporation), option holder, warrant holder, partner, member
or
other equity or security owner or holder of any company or business that derives
revenue from the Restricted Activities (as defined below) within the Restricted
Area (as defined below), or any company or business controlling, controlled
by
or under common control with any company or business directly engaged in such
Restricted Activities within the Restricted Area (any of the foregoing, a
“Restricted Company”) or (ii) engage or participate as an employee, director,
officer, manager, executive, partner, independent contractor, consultant or
technical or business advisor (or any foreign equivalents of the foregoing)
in
the Restricted Activities within the Restricted Area. Nothing in this Subsection
19(g) shall preclude Executive from accepting employment with a multi-division
company so long as (x) Executive’s employment is not within a division of the
new employer that engages in the Restricted Activities within the Restricted
Area, (y) during the course of such employment, Executive does not communicate
related to Restricted Activities with any division of Executive’s new employer
engaged in the Restricted Activities within the Restricted Area and (z)
Executive does not engage in the Restricted Activities within the Restricted
Area.
(i) For
purposes of this Agreement, the term “Restricted Activities” means the retail,
wholesale or commercial sale of aftermarket auto parts and accessories. The
term
“Restricted Area” means the United States of America, including its territories
and possessions.
(ii) In
the
event that Executive intends to associate (whether as an employee, consultant,
independent contractor, officer, manager, advisor, partner, executive or
director) with any Restricted Company during the Non-Compete Period, Executive
must provide information in writing to the Board of Directors of the Company
relating to the activities proposed to be engaged in by Executive for such
Restricted Company. All such current associations are set forth on Exhibit
B
to this
Agreement. In the event that the Board of Directors of the Company consents
in
writing to Executive’s engagement in such activity, the engaging in such
activity by Executive shall be conclusively deemed not to be a violation of
Subsection 19(g) hereof.
10
(g)
Specific
Enforcement; Remedies Cumulative; Attorney Fees.
Executive acknowledges that the Company and Related Entities, as the case may
be, will be irreparably injured if the provisions of Subsections 19(a), 19(c),
19(e), and 19(f) hereof are not specifically enforced and Executive agrees
that
the terms of such provisions (including without limitation the periods set
forth
in Subsections 19(e) and 19(f)) are reasonable and appropriate. If Executive
commits or, in the reasonable belief of the Company, threaten to commit a breach
of any of the provisions of Subsections 19(a), 19(c), 19(e) or 19(f) hereof,
the
Company and/or Related Entities, as the case may be, shall have the right and
remedy, in addition to and not in limitation of any other remedy that may be
available at law or in equity, to have the provisions of Subsections 19(a),
19(c), 19(e) or 19(f) hereof specifically enforced by any court having
jurisdiction through immediate injunctive and other equitable
relief,
it
being acknowledged and agreed that any such breach or threatened breach will
cause irreparable injury to the Company and/or Related Entities and that money
damages will not provide an adequate remedy therefore. Such injunction shall
be
available without the posting of any bond or other security, and Executive
hereby consents to the issuance of such injunction. Executive agrees to pay
to
the Company and/or Related Entities their reasonable attorney’s fees and court
costs in obtaining enforcement of, or determining the validity of, this
Agreement or any provision hereof, whether in an action, suit, motion or matter
brought by Executive or the Company and/or Related Entities (or any other person
or entity), provided the Company and/or Related Entities is a prevailing party
in such action, suit, motion or matter.
(h)
Re-Set
of Period for Non-Competition and Non-Solicitation.
In the
event that a legal or equitable action is commenced with respect to any of
the
provisions of Subsections 19(f) or 19(g) hereof and Executive has not strictly
observed the provisions in such sections with respect to which such action
has
been commenced, then the one-year period, as described in such sections not
strictly observed by Executive shall begin to run anew from the date of any
Final Judicial Determination of such legal action. “Final Judicial
Determination” shall mean the expiration of time to file any possible appeal
from a final judgment in such legal action or, if an appeal is taken, the final
determination of the final appellate proceeding and that any failure to do
so
shall constitute a breach of the provisions hereof.
(i)
Adherence
to Company Policies.
Executive agrees to diligently adhere to all established Company policies and
procedures, including but not limited to the Company’s Code of Ethics and
Business Conduct and, if applicable, the Code of Ethics for Financial
Professionals. Executive agrees that if Executive does not adhere to any of
the
provisions of such Guidelines, Executive will be in breach of the provisions
hereof.
(j)
Representations.
Executive agrees to execute any proper oath or verify any proper document
required to carry out the terms of this Agreement. Executive represents that
Executive’s performance of all the terms of this Agreement will not breach any
agreement to keep in confidence proprietary information acquired by Executive
in
confidence or in trust prior to Executive’s employment by the Company. Executive
has not entered into, and Executive agrees Executive will not enter into, any
oral or written agreement in conflict herewith and Executive’s employment by the
Company and Executive’s services to the Company will not violate the terms of
any oral or written agreement to which Executive is a party.
11
(k)
WITH
RESPECT TO THE ENFORCEMENT OF ANY AND ALL LOYALTY OBLIGATIONS ARISING UNDER
SECTION 19, THE FOLLOWING SUBSECTIONS 19(k) AND 19(l) SHALL APPLY. THE PARTIES
HERETO IRREVOCABLY AND UNCONDITIONALLY CONSENT TO THE EXCLUSIVE JURISDICTION
OF
THE FOLLOWING COURTS IN MATTERS RELATED TO THIS SECTION 19 AND AGREE NOT TO
COMMENCE ANY SUIT, ACTION OR PROCEEDING RELATING THERETO EXCEPT IN ANY OF SUCH
COURTS: THE STATE COURTS OF THE COMMONWEALTH OF VIRGINIA OR THE COURTS OF THE
UNITED STATES OF AMERICA LOCATED IN THE CITY OF ROANOKE, VIRGINIA (OR IN ANY
MUNICIPALITY WHEREIN AN OFFICE OF COMPANY IS LOCATED, IN WHICH OFFICE EXECUTIVE
WAS PHYSICALLY PRESENT WHILE RENDERING SERVICES FOR COMPANY AT ANY TIME DURING
THE 12 MONTHS IMMEDIATELY PRECEDING THE COMMENCEMENT OF SUCH SUIT, ACTION OR
PROCEEDING OR IMMEDIATELY PRECEDING THE TERMINATION OR EXPIRATION OF EXECUTIVE’S
EMPLOYMENT, IF TERMINATED OR EXPIRED).
(l)
EXECUTIVE
AGREES TO WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED
UPON, OR RELATED TO, ANY LOYALTY OBLIGATIONS. THIS WAIVER IS KNOWINGLY,
INTENTIONALLY, AND VOLUNTARILY MADE BY EXECUTIVE, AND EXECUTIVE ACKNOWLEDGES
THAT, EXCEPT FOR THE COMPANY’S AGREEMENT TO LIKEWISE WAIVE ITS RIGHTS TO A TRIAL
BY JURY (WHICH THE COMPANY HEREBY MAKES), COMPANY HAS NOT MADE ANY
REPRESENTATIONS OF FACTS TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY
TO
MODIFY OR NULLIFY ITS EFFECT. EXECUTIVE FURTHER ACKNOWLEDGES THAT EXECUTIVE
HAS
BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING
OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL,
SELECTED OF EXECUTIVE’S OWN FREE WILL, AND THAT EXECUTIVE HAS HAD THE
OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. EXECUTIVE FURTHER ACKNOWLEDGES
THAT EXECUTIVE HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS
WAIVER AND AS EVIDENCE OF THIS FACT SIGNS THIS AGREEMENT BELOW.
12
IN
WITNESS WHEREOF, the Company and Executive have executed this Agreement as
of
the date first written above.
| Advance Auto Parts, Inc. | Advance Stores Company, Inc. | |
| By: ____________________________ (SEAL) | By: __________________________ (SEAL) | |
| Print Name:_____________________ | Print Name:____________________ | |
| Title: __________________________ | Title: _________________________ | |
| Address: _______________________ | Address: ______________________ | |
| ________________________ | _______________________ | |
| ________________________ | _______________________ | |
| Executive | ||
| Print Name:____________________ | ||
| Signature: _____________________ | ||
| Address: ______________________ | ||
| _______________________ | ||
| _______________________ |
13
EXHIBIT
A
TERMINATION
CERTIFICATION
This
is
to certify that I do not have in my possession, nor have I failed to return,
any
devices, records, data, notes, reports, proposals, lists, correspondence,
specifications, drawings, blueprints, sketches, materials, equipment, other
documents or property, or reproductions of any aforementioned items belonging
to
the Company.
I
further
certify that I have, to the best of my knowledge, complied with all the terms
of
my Employment Agreement with the Company.
| Date: | |
|
_____________________________ Emplyee's
Signature |
|
|
_____________________________ Print
Name: |
EXHIBIT
B
LIST
OF ASSOCIATIONS WITH RESTRICTED COMPANIES
____
None
____
Additional Sheets Attached
Signature
of Employee: __________________________
Print
Name of Employee: _________________________
Date:
_________________
