EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT
10.19
EXECUTIVE
EMPLOYMENT AGREEMENT
This
Employment Agreement ("Agreement") is entered into as of January 19, 2007 by
and
between Xxxxxx X. Xxxxxxx Xx., a natural person ("Executive"), and Aftermarket
Technology Corp., a Delaware corporation (“ATC”). As used herein, the “Company”
refers to ATC and/or any subsidiary of ATC. The parties hereto agree as
follows:
1. Employment.
(a) Full
Time and Best Efforts.
Subject
to the terms set forth herein, the Company agrees to employ Executive as
Chairman, President and Chief Executive Officer of ATC and Executive hereby
accepts such employment. While employed by the Company, Executive will devote
his full time, best efforts and attention to the performance of his duties
hereunder and to the business and affairs of ATC and its
subsidiaries.
(b) Duties.
Executive shall perform such duties for the Company as are customarily
associated with the above management positions, consistent with the Bylaws
of
the Company and as required by the Board of Directors of ATC.
(c) Company
Policies.
The
employment relationship between the parties shall be governed by the general
employment policies and practices of the Company, except that when the terms
of
this Agreement differ from or are in conflict with such employment policies
and
practices, this Agreement shall control.
2. Compensation
and Benefits.
(a) Salary.
Executive shall receive for services to be rendered hereunder an annual base
salary of $560,000, retroactive to January 1, 2007, payable on the
Company’s regular payroll dates, subject to increase at the discretion of the
Company, and subject to standard withholdings for taxes and social security
and
the like.
(b) Incentive
Plans.
Executive shall participate in the Company’s incentive plans as follows:
(i) the 2007 Incentive Compensation Plan at a target bonus of 90% of base
salary, (ii) subsequent annual Incentive Compensation Plans at a target
bonus to be established by the Board of Directors, (iii) the 2006-2008
Long-Term Incentive Plan through (A) a grant of 29,400 shares of restricted
stock, (B) a grant of 87,700 options to purchase common stock, and
(C) a cash bonus targeted at $504,000, and (iv) subsequent Long-Term
Incentive Plans at levels to be established by the Board of Directors. Such
participation shall be subject to and on a basis consistent with the terms,
conditions and administration of the incentive plans. Executive understands
that
(x) the Company shall have discretion to establish incentive plan
objectives for Executive and to determine his level of achievement of those
objectives, and (y) any such plan may be modified or eliminated in the
Company’s sole discretion in accordance with applicable law and the terms of
such plan, provided that any such modification or elimination shall not apply
to
Executive unless such modification or elimination also applies to all other
plan
participants on a substantially comparable basis.
(c) Participation
in Benefit Plans.
While
employed by the Company, Executive shall be entitled to participate in any
group
medical, dental, health and accident, disability insurance, life insurance
(at a
minimum of $1.5 million in Company-paid coverage), retirement income, deferred
compensation or similar plan or program of the Company to the extent that he
is
eligible under the general provisions thereof. The Company may, in its
discretion and from time to time, establish additional management benefit
programs as it deems appropriate. Executive understands that any such plans
may
be modified or eliminated in the Company's discretion in accordance with
applicable law.
(d) Vacation.
Executive shall be entitled to five weeks paid vacation. The days selected
for
Executive's vacation must be mutually agreeable to the Company and
Executive.
3. Perquisites.
(a) Financial
Planning/Club Dues Allowance.
Executive will receive reimbursement for up to $20,000 of expenses incurred
during a calendar year for (i) personal financial/tax planning,
(ii) estate planning (including legal fees), (iii) club (e.g.,
country
club, health club, social club) dues, (iv) home office and internet
service, and (v) other matters similar to the foregoing.
(b) Automobile.
Executive shall be entitled to an annual automobile allowance of $24,000,
retroactive to January 1, 2007, subject to applicable withholding.
4. Business
Expenses.
Executive shall be reimbursed for documented and reasonable business expenses
in
connection with the performance of his duties hereunder.
5. Termination
of Employment.
The date
on which Executive's employment by the Company ceases, under any of the
circumstances provided in Section 5(a)-(g), shall be defined herein as the
"Termination Date." All capitalized terms used in this Section 5 without
definition will have the meanings set forth in Section 5(l).
(a) End
of
Employment Term.
Unless
terminated earlier pursuant to Section 5(b)-(g), Executive’s employment
will terminate on December 31, 2007, provided that
(i) on
December 31, 2007 the employment term will automatically renew until
December 31, 2008 unless the Company gives Executive written notice of
nonrenewal on or before September 30, 2007, and
(ii) if
the
employment term automatically renews pursuant to clause (i), then on
December 31, 2008 it shall automatically renew until December 31, 2009
unless the Company gives Executive written notice of nonrenewal on or before
September 30, 2008.
Within
ten business days after the Termination Date, Executive shall receive payment
for all accrued salary through the Termination Date and the Earned Benefits.
Executive shall also receive the LTIP Payment under a particular Long-Term
Incentive Plan upon the completion of the Company’s audited consolidated
financial statements for the last year of such Long-Term Incentive Plan (e.g.,
2008 in the case of the 2006-2008 Long-Term Incentive Plan). Except as provided
above, no compensation of any kind or severance payment will be
payable
2
under
this Agreement due to a termination pursuant to this Section 5(a), except
that if a Change in Control occurs within 18 months prior to Executive’s
termination pursuant to this Section 5(a), such termination shall be
treated as a Company termination without Cause and Executive shall be entitled
to the payments and benefits provided in Section 5(f).
(b) Termination
for Cause.
The
Company may terminate Executive's employment at any time for Cause immediately
upon written notice to Executive of the circumstances leading to such
termination for Cause. If Executive's employment is terminated for Cause,
Executive shall receive payment for all accrued salary through the Termination
Date (which in this event shall be the date upon which notice of termination
is
given) and the Earned Benefits. The Company shall have no obligation to pay
severance of any kind nor to make any payment in lieu of notice if Executive
is
terminated for Cause.
(c) Voluntary
Termination.
Executive may voluntarily terminate his employment with the Company at any
time
upon 90 days’ prior written notice. Within ten business days after the
Termination Date, Executive shall receive payment for all accrued salary through
the Termination Date and the Earned Benefits, after which no further
compensation of any kind or severance payment will be payable under this
Agreement.
(d) Termination
Upon Death.
Executive’s employment will terminate upon his death. Within ten business days
after the Termination Date, Executive’s estate shall receive payment for all
accrued salary through the Termination Date and the Earned Benefits. Executive’s
estate shall also receive the LTIP Payment under a particular Long-Term
Incentive Plan upon the completion of the Company’s audited consolidated
financial statements for the last year of such Long-Term Incentive Plan. Except
as provided above, no compensation of any kind or severance payment will be
payable under this Agreement due to a termination pursuant to this
Section 5(d).
(e) Termination
Upon Disability.
The
Company may terminate Executive's employment in the event Executive suffers
a
disability that renders Executive unable to perform the essential functions
of
his position, even with reasonable accommodation in compliance with the
Americans with Disabilities Act, for three consecutive months. A termination
in
such circumstances shall be treated as a Company termination without Cause
and
Executive shall be entitled to the payments and benefits provided in
Section 5(f) and Section 5(i)(i). The foregoing shall not affect any
rights that Executive may have under applicable workers’ compensation laws or
any disability plan of the Company.
(f) Termination
Without Cause.
The
Company may terminate Executive's employment without Cause at any time upon
30
days’ prior written notice. Within ten business days after the Termination Date,
Executive shall receive payment for all accrued salary through the Termination
Date and the Earned Benefits. Executive shall also receive the LTIP Payment
under a particular Long-Term Incentive Plan upon the completion of the Company’s
audited consolidated financial statements for the last year of such Long-Term
Incentive Plan. In addition, the Company shall pay Executive as severance an
amount equal to 200% of the sum of Executive’s annual base salary plus his
target bonus under the 2007 Incentive Compensation Plan. Subject to
Section 11, the severance shall be paid in equal installments on each of
the Company’s regular payroll dates during the two-year period following the
3
Termination
Date, unless the Termination Date occurs within 18 months after a Change in
Control, in which case the severance will be paid in a single lump sum within
ten business days after the Termination Date. The Company will pay up to
$25,000 of
the
cost of an executive level individualized career transition program through
a
professional outplacement firm mutually selected by the Company and the
Executive if such program is initiated within 30 days after the Termination
Date. If Executive dies after the Termination Date, the payment or payments
due
thereafter under this Section 5(f) shall be made to Executive’s estate but
the career transition benefits shall terminate as of the date of death. As
a
condition to receiving the payments and benefits provided by this
Section 5(f) (other than payment for all accrued salary through the
Termination Date and the Earned Benefits, which shall be payable in any case),
Executive shall execute and deliver to the Company on the Termination Date
a
general release in the form attached hereto as Exhibit A.
(g) Fundamental
Changes.
If the
Company (i) materially diminishes Executive's duties, authority,
responsibility or compensation without performance justification, or
(ii) breaches this Agreement in any material respect, Executive may
terminate his employment, provided that Executive has given the Company 30
days’
written notice prior to such termination and the Company has not cured such
diminution or breach, as the case may be, by the end of such 30-day period.
A
termination in such circumstances shall be treated as a Company termination
without Cause and Executive shall be entitled to the payments and benefits
provided in Section 5(f) and Section 5(i)(i).
(h) Medical
Coverage.
Except
in the case of Executive’s death or termination for Cause, until the fifth
anniversary of the Termination Date the Company will provide continued
medical-related insurance coverage to Executive at the levels and at the rates
applicable from time to time to comparable active employees of the Company.
Medical-related insurance coverage includes health, dental, vision and/or
cancer. COBRA continuation coverage eligibility shall commence as of the day
following the end of the five-year period. Notwithstanding the above, coverage
under each of these plans shall cease on the date (i) Executive fails to
pay timely the premium required by such plan, (ii) Executive becomes
eligible for coverage under Medicare or the group health plan of any other
employer, (iii) the Company terminates such plan as to all its employees,
or (iv) Executive dies.
(i) Vesting
of Restricted Stock and Stock Options.
All of
Executive’s restricted stock and unvested stock options that are outstanding as
of the Termination Date will be treated as follows following the Termination
Date:
(i) In
the
case of termination pursuant to Section 5(a) or Company termination without
Cause, such restricted stock and options will continue to vest after the
Termination Date according to their vesting schedules notwithstanding the fact
that Executive has ceased to be an employee of the Company.
(ii) In
the
case of Executive’s death, such restricted stock and options shall fully vest as
of the Termination Date.
4
(iii) In
the
case of voluntary resignation, such restricted stock and options will terminate
on the Termination Date unless the Board determines that Executive
hasprovided an orderly transition to his successor, in which case such
restricted stock and options will continue to vest after the Termination Date
according to their vesting schedules notwithstanding the fact that Executive
has
ceased to be an employee of the Company.
(iv) In
the
case of termination for Cause, such restricted stock and options will terminate
on the Termination Date.
Except
in
the case of termination for Cause, each option that is vested as of the
Termination Date or subsequently vests pursuant to this Section 5(i) shall
remain in effect and be exercisable until the tenth anniversary of the date
of
grant of such option.
(j) No
Other Payments or Benefits.
Except
as otherwise expressly provided in this Agreement, (i) after the
Termination Date Executive will not be entitled to any payments from the Company
and (ii) on the Termination Date Executive’s participation in and coverage
under the Company’s benefit programs (including the ATC Retirement Savings Plan
(i.e.,
the
401(k) plan) and the Company’s group life and disability insurance plans) shall
cease; provided that Executive shall retain any right to convert to individual
coverage as permitted under these insurance plans and to any vested benefits
under the 401(k) plan and the Company’s stock option plans.
(k) Withholding.
Any
amounts payable under this Section 5 shall be subject to standard withholdings
for taxes and social security and the like.
(l) Definitions.
(i) "Cause"
means
the occurrence or existence of any of the following with respect to Executive,
as determined by the Company in its sole discretion:
(A) a
material breach by Executive of (x) his duty not to engage in any
transaction that represents, directly or indirectly, self-dealing with the
Company or any of its affiliates that has not been approved by the Company,
or
(y) the terms of this Agreement, if in any such case such material breach
remains uncured after the lapse of 30 days following the date that the Company
has given Executive written notice thereof;
(B) the
material breach by Executive of any duty referred to in clause (A) above as
to
which at least one written notice has been given pursuant to
clause
(A);
(C) any
act
of dishonesty, misappropriation, embezzlement, intentional fraud or similar
conduct involving the Company or any of its affiliates;
(D) the
conviction or the plea of nolo contendere or the equivalent in respect of a
felony involving moral turpitude;
(E) any
intentional damage of a material nature to any property of the Company or any
of
its affiliates; or
5
(F) the
repeated non-prescription use of any controlled substance or the repeated use
of
alcohol or any other non-controlled substance that, in the reasonable
determination of the Company renders Executive unfit to serve in his capacity
as
an employee of the Company or its affiliates.
(ii) “Change
in Control”
means
the first to occur of the following:
(A) any
sale
or transfer or other conveyance, whether direct or indirect, of all or
substantially all of the assets of the Company, on a consolidated basis, in
one
transaction or a series of related transactions, unless, immediately after
giving effect to such transaction, at least 85% of the total voting power
normally entitled to vote in the election of directors, managers or trustees,
as
applicable, of the transferee is “beneficially owned” by persons who,
immediately prior to the transaction, beneficially owned 100% of the total
voting power normally entitled to vote in the election of directors of the
Company;
(B) any
Person or Group is or becomes the "beneficial owner," directly or indirectly,
of
more than 35% of the total voting power in the aggregate of all classes of
capital stock of the Company then outstanding normally entitled to vote in
elections of directors;
(C) during
any period of 12 consecutive months, individuals who at the beginning of such
12-month period constituted the Company’s Board of Directors (together with any
new directors whose election by such Board or whose nomination for election
by
the shareholders of the Company was approved by a vote of a majority of the
directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Company’s Board
of Directors then in office; or
(D) a
reorganization, merger or consolidation of the Company the consummation of
which
results in the outstanding securities of any class of the Company’s capital
stock being exchanged for or converted into cash, property and/or a different
kind of securities, unless, immediately after giving effect to such transaction,
at least 85% of the total voting power normally entitled to vote in the election
of directors, managers or trustees, as applicable, of the entity surviving
or
resulting from such reorganization, merger or consolidation is “beneficially
owned” by persons who, immediately prior to the transaction, beneficially owned
100% of the total voting power normally entitled to vote in the election of
directors of the Company.
(iii) “Earned
Benefits”
means
any (A) bonus that is payable to Executive pursuant to the terms of
(x) the 2006 annual Incentive Compensation Plan that has not been paid
prior to the Termination Date and (y) the annual Incentive Compensation
Plan for any subsequent year in the case of a termination pursuant to
Section 5(a) if the Termination Date occurs on or before the last day of
such annual Incentive Plan, (B) vacation time that has accrued and not been
used as of the Termination Date, (C) other entitlements to cash payments
that have accrued and not been paid as of the Termination Date, and (D) any
deferred compensation earned by Executive prior to termination. Notwithstanding
other
6
provisions
of this Agreement regarding the timing of payment of Earned Benefits,
(x) the 2007 annual Incentive Compensation Plan bonus will not be paid
until the completion of the Company’s 2007 audited consolidated financial
statements, and (y) deferred compensation will be paid as provided in the
Company’s deferred compensation plan.
(iv) “LTIP
Payment”
means
the amount, if any, that would have been payable to Executive under the cash
award component of any Long-Term Incentive Plan if he had remained employed
by
the Company through December 31 of the last year of such Plan multiplied by
a fraction (A) the numerator of which is the number of days starting
January 1 of the first year of such Long-Term Incentive Plan (e.g.,
January 31, 2006 in the case of the 2006-2008 Long-Term Incentive Plan)
through the Termination Date and (B) the denominator of which is the number
of days in such Long-Term Incentive Plan (e.g., 1,095 in the case of the
2006-2008 Long-Term Incentive Plan).
(v) “Person” and “Group”
have the
meanings used for purposes of Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended, whether or not such sections apply to the
transaction in question.
6. Proprietary
Information Obligations.
Prior to
and/or while employed by the Company, Executive has had and/or will have access
to and has become and/or will become acquainted with the confidential and
proprietary information of the Business (as defined in Section 8) and the
Company and its affiliates, including but not limited to confidential and
proprietary information or plans regarding customer relationships; personnel;
sales, marketing, and financial operations and methods; trade secrets; formulas;
devices; secret inventions; processes and other compilations of information,
records, and specifications (collectively "Proprietary Information"). Executive
shall not disclose any of the Proprietary Information directly or indirectly,
or
use it in any way, either while employed by the Company, or at any time
thereafter, except as required in the course of his employment hereunder or
as
authorized in writing by the Company. All files, records, documents,
computer-recorded information, drawings, specifications, equipment and similar
items relating to the Business or the Company or its affiliates, whether
prepared by Executive or otherwise coming into his possession prior to or while
employed by the Company, shall remain the exclusive property of the Company
or
such affiliate and shall not be removed from the premises of the Company or
its
affiliate under any circumstances whatsoever without the prior written consent
of the Company, except when (and only for the period) necessary to carry out
Executive's duties hereunder, and if removed shall be immediately returned
upon
any termination of his employment and no copies thereof shall be kept by
Executive.
7. Noninterference.
While
employed by the Company and for a period of three years thereafter, Executive
shall not, without the prior written consent of the Company, interfere with
the
Company or any of its affiliates by directly or indirectly soliciting,
attempting to solicit, inducing, or otherwise causing or assisting any person
who is then employed by the Company or any of its affiliates to terminate such
employment in order to become an employee, consultant or independent contractor
to or for any employer other than the Company or such
affiliate.
7
8. Noncompetition.
Executive agrees that while employed by the Company and during the 24 months
after the Termination Date, he will not, without the prior consent of the
Company, directly or indirectly, have an interest in, be employed by, be
connected with, or have an interest in (as an employee (whether full-time,
part-time or temporary), consultant, officer, director, partner, stockholder,
joint venturer, promoter or lender), any person or entity owning, managing,
controlling, operating or otherwise participating or assisting in any business
that is either (i) similar to the Business (or any portion thereof) and
would benefit from the disclosure of the Company’s trade secrets or (ii) in
competition with the Business (or any portion thereof) in any of the 50 states
in the United States of America; provided, however, that the foregoing shall
not
prevent Executive from being a stockholder of less than 1% of the issued and
outstanding securities of any class of a corporation listed on a national
securities exchange or designated as national market system securities on an
interdealer quotation system by the National Association of Securities Dealers,
Inc. Without limiting the generality of the foregoing, a business will be deemed
to be in competition with the Business at a given point in time if any of the
customers of such business were customers of the Business at any time during
the
18 months preceding the time in question. As used herein, “Business” means
any and all of the businesses in which the Company is engaged as of the
Termination Date.
9. Remedies.
Executive acknowledges that a breach or threatened breach by Executive of any
the provisions of Sections 6, 7 or 8 will result in the Business and the
Company and its affiliates suffering irreparable harm that cannot be calculated
or fully or adequately compensated by recovery of damages alone. Accordingly,
Executive agrees that the Company shall be entitled to interim, interlocutory
and permanent injunctive relief, specific performance and other equitable
remedies, in addition to any other relief to which the Company may become
entitled should there be such a breach or threatened breach.
10. Excise
Tax Gross-Up Payment.
If
Executive’s employment is terminated by the Company without Cause within 18
months after a Change in Control and Executive becomes subject to the excise
tax
imposed by Internal Revenue Code (“Code”) Section 4999 (the “Parachute Excise
Tax”) with respect to any amounts paid or payable to Executive under this
Agreement, then the Company and Executive agree that:
(a) If
the
aggregate of all “parachute payments” (as such term is used under Code Section
280G) does not exceed 330% of the “base amount” (as such term is used under Code
Section 280G), then the parachute payment shall be reduced to 299.99% of such
base amount;
(b) If
the
aggregate of all parachute payments exceeds 330% of the base amount, then the
Company shall pay to Executive a tax gross-up payment so that after payment
by
or on behalf of Executive of all federal, state and local excise, income,
employment, Medicare and any other taxes (including any related penalties and
interest) resulting from the payment of the parachute payments and the tax
gross-up payments to Executive by the Company, Executive retains on an after-tax
basis an amount equal to the amount that Executive would have retained if
Executive had not been subject to the Parachute Excise Tax;
8
(c) The
computation of the excess parachute payment in accordance with Code Section
280G
shall be done by a nationally recognized and reputable independent accounting
or
valuation firm selected and paid for by the Company.
(d) Executive
shall notify the Company in writing of any claim by the Internal Revenue Service
that, if successful, would require the payment by the Company of any tax
gross-up payments. Such notification shall be given as soon as practicable
but
no later than ten (10) business days after Executive is informed in writing
of
such claim and shall apprise the Company of the nature of such claim and the
date on which such claim is requested to be paid. Executive shall not pay such
claim prior to the expiration of the thirty (30)-day period following the date
on which Executive gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is
due).
If the Company notifies Executive in writing prior to the expiration of such
period that it desires to contest such claim, Executive shall:
(i) give
the
Company any information reasonably requested by the Company relating to such
claim,
(ii) take
such
action in connection with contesting such claim as the Company shall reasonably
request in writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney reasonably
selected by the Company,
(iii) cooperate
with the Company in good faith in order effectively to contest such claim,
and
(iv) permit
the Company to participate in any proceedings relating to such
claim;
provided,
however, that the Company shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with such
contest and shall indemnify and hold Executive harmless, on an after-tax basis,
for any excise tax or income tax (including interest and penalties with respect
thereto) imposed as a result of such representation and payment of costs and
expenses. Without limitation on the foregoing provisions of this Section 10,
the
Company shall control all proceedings taken in connection with such contest
and,
at its sole option, may pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect
of
such claim and may, at its sole option, either direct Executive to pay the
tax
claimed and xxx for a refund or contest the claim in any permissible manner,
and
Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided, however, that if
the
Company directs Executive to pay such claim and xxx for a refund, the Company
shall advance the amount of such payment to Executive, on an interest-free
basis
and shall indemnify and hold Executive harmless, on an after-tax basis, from
any
excise tax or income tax (including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any imputed income
with
respect to such advance; and further provided that any extension of the statute
of limitations relating to payment of taxes for
9
the
taxable year of Executive with respect to which such contested amount is claimed
to be due is limited solely to such contested amount. Furthermore, the Company’s
control of the contest shall be limited to issues with respect to which a
gross-up payment would be payable hereunder and Executive shall be entitled
to
settle or contest, as the case may be, any other issue raised by the Internal
Revenue Service or any other taxing authority.
(e) If,
after
the receipt by Executive of an amount advanced by the Company pursuant to this
Section 10, Executive becomes entitled to receive any refund with respect to
such claim, Executive shall (subject to the Company’s complying with the
requirements of this Section 10) promptly pay to the Company the amount of
such
refund (together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by Executive of an amount advanced
by
the Company pursuant to this Section 10, a determination is made that Executive
shall not be entitled to any refund with respect to such claim and the Company
does not notify Executive in writing of its intent to contest such denial of
refund prior to the expiration of thirty (30) days after such determination,
then such advance shall be forgiven and shall not be required to be repaid
and
the amount of such advance shall offset, to the extent thereof, the amount
of
gross-up payment required to be paid.
11. Code
Section 409A.
Notwithstanding anything in this Agreement or elsewhere to the
contrary:
(a) If
payment or provision of any amount or other benefit that is “deferred
compensation” subject to Section 409A of the Code at the time otherwise
specified in this Agreement or elsewhere would subject such amount or benefit
to
additional tax pursuant to Section 409A(a)(1)(B) of the Code, and if payment
or
provision thereof at a later date would avoid any such additional tax, then
the
payment or provision thereof shall be postponed to the earliest date on which
such amount or benefit can be paid or provided without incurring any such
additional tax. In the event this Section 11 requires a deferral of any payment,
such payment shall be accumulated and paid in a single lump sum on such earliest
date without interest.
(b) If
any
payment or benefit permitted or required under this Agreement, or otherwise,
is
reasonably determined by either party to be subject for any reason to a material
risk of additional tax pursuant to Section 409A(a)(1)(B) of the Code, including
when final regulations are issued thereunder, then the parties shall negotiate
in good faith on appropriate provisions to avoid such risk without materially
changing the economic value of this Agreement to either party.
12. Miscellaneous.
(a) Notices.
Any
notices provided hereunder must be in writing and shall be deemed effective
upon
the earlier of (i) personal delivery (including personal delivery by
telecopy, if a copy is sent by mail or overnight delivery), (ii) the
business day following being sent through an overnight delivery service, or
(iii) the third business day after mailing by first class mail to the
recipient at the address indicated below:
10
To
the
Company:
Aftermarket
Technology Corp.
0000 Xxxx Xxxxx, Xxxxx 000
0000 Xxxx Xxxxx, Xxxxx 000
Xxxxxxx
Xxxxx, XX 00000
Attention: General
Counsel
Facsimile: (000)
000-0000
To
Executive:
Xxxxxx
X.
Xxxxxxx Xx.
0000
Xxxxx Xxxxx Xxxxx
Xxxxxxxxxx,
XX 00000
With
a
copy to:
Xxxxxxx
X. Rock
Xxxxxxxxxx,
Rock, Xxxx & Xxxxxxx LLP
0000
Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx,
XX 00000-0000
Facsimile: (000)
000-0000
or
to
such other address or to the attention of such other person as the recipient
party will have specified by prior written notice to the sending
party.
(b) Severability.
The
provisions of this Agreement are severable and, if any court of competent
jurisdiction determines that any provision contained in this Agreement shall,
for any reason, be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement, and this Agreement shall be reformed and construed so that
such invalid or illegal or unenforceable provision would be valid, legal and
enforceable to the maximum extent possible.
(c) Entire
Agreement.
This
Agreement supersedes all prior and contemporaneous oral understandings and
agreements with respect to the subject matter hereof.
(d) Counterparts.
This
Agreement may be executed on separate counterparts, any one of which need not
contain signatures of more than one party, but all of which taken together
will
constitute one and the same agreement.
(e) Successors
and Assigns.
This
Agreement is intended to bind and inure to the benefit of and be enforceable
by
Executive and the Company, and their respective successors and assigns, except
that Executive may not delegate any of his duties hereunder and he may not
assign any of his rights hereunder without the prior written consent of the
Company.
(f) Attorney's
Fees.
If any
legal proceeding is necessary to enforce or interpret the terms of this
Agreement, or to recover damages for breach therefore, the prevailing party
shall be entitled to reasonable attorney's fees, as well as costs and
disbursements, in addition to any other relief to which he or it may be
entitled.
11
(g) Amendments;
No Waivers.
Any
provision of this Agreement may be amended or waived if such amendment or waiver
is in writing and signed, in the case of an amendment, by all parties hereto,
and in the case of a waiver, by the party against whom the waiver is to be
effective. No waiver by a party of any breach of this Agreement shall be deemed
to extend to any prior or subsequent breach or affect in any way any rights
arising by virtue of any prior or subsequent breach. No failure or delay by
a
party in exercising any right, power or privilege hereunder shall operate as
a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power
or
privilege. The rights and remedies herein provided shall be cumulative and
not
exclusive of any rights or remedies provided by law.
(h) Governing
Law and Venue.
This
Agreement shall be governed by and construed and enforced in accordance with
the
internal laws (without reference to choice or conflict of laws) of the State
of
Illinois. The parties to this Agreement hereby irrevocably consent to the
exclusive venue and jurisdiction of the state and federal courts sitting in
the
State of Illinois for any matter or controversy concerning either the existence
or enforcement of this Agreement and hereby waive any contention that Illinois
is an improper or inconvenient forum.
(i) Construction.
The
captions herein are included for convenience of reference only and shall be
ignored in the construction or interpretation hereof. Neither party hereto,
nor
its respective counsel, shall be deemed the drafter of this Agreement, and
all
provisions of this Agreement shall be construed in accordance with their fair
meaning, and not strictly for or against either party hereto.
IN
WITNESS
WHEREOF, the parties have executed this Agreement effective as of the date
first
above written.
|
|
|
Xxxxxx X. Xxxxxxx Xx. |
| AFTERMARKET TECHNOLOGY CORP. | |
| |
|
| By: | |
|
Xxxxxx Xxxxxxxxxxxx |
|
|
Vice
President
|
|
12
GENERAL
RELEASE
THIS
GENERAL
RELEASE is entered into by the undersigned (“Employee”) as of the date appearing
next to Employee’s signature hereto.
WHEREAS,
Employee’s employment with Aftermarket Technology Corp. and/or one of its
subsidiaries (Aftermarket and its subsidiaries being referred to collectively
as
the “Company”) is being terminated and the Company will provide Employee with
certain benefits upon the termination of employment provided that, among other
things, Employee executes and delivers this General Release;
NOW,
THEREFORE, Employee agrees as follows:
1. General
Release.
Employee
hereby
(a) releases
and discharges the Company and its officers, directors, employees, benefit
plan
administrators and trustees, and agents (collectively, the “Released Parties”)
from any and all claims, liabilities, demands and causes of action, whether
known or unknown, fixed or contingent, that Employee may have or claim to have
against any of the Released Parties relating to, or arising out of, Employee’s
employment with the Company or the termination thereof, and
(b) covenants
not to initiate or participate in (except pursuant to a lawful subpoena) any
lawsuit or other legal proceeding asserting any such claims, liabilities,
demands or causes of action.
This
General Release shall be broadly construed to include, but not be limited to,
all claims under any federal, state, or local laws, statutes, regulations,
or
ordinances (including those prohibiting employment discrimination, such as
the
federal Age Discrimination in Employment Act), and all claims in contract or
tort including, but not limited to, claims for breach of contract, negligence,
defamation, and wrongful or retaliatory discharge. This General Release does
not
include any claim Employee may have (i) based upon facts occurring after
the date that Employee executes this General Release or (ii) relating to
benefits or payments to which Employee is entitled after the Termination Date
(as defined in that certain Executive Employment Agreement dated as of January
___, 2007 between Employee and the Company) pursuant to the Executive Employment
Agreement.
2. Knowing
and Voluntary.
Employee
acknowledges and agrees that: (a) Employee has read and understands this
General Release in its entirety; (b) Employee has been advised in writing
to consult with an attorney concerning this General Release before signing
it;
(c) Employee has 21 calendar days after receipt of this General
Release to consider its terms before signing it; (d) Employee has the right
to revoke this General Release in full within seven calendar days of signing
it
and that none of the terms and provisions of this General Release shall become
effective or be enforceable until such revocation period has expired;
(e) nothing contained in this General Release waives any claim that may
arise after the date of its execution; and (f) Employee is executing this
General Release knowingly and voluntarily, without duress or reservation of
any
kind, and after giving the matter full and careful consideration.
IN
WITNESS
WHEREOF, the undersigned has executed this General Release as of the date set
forth below.
| Executed: __________________________, 20___ | EMPLOYEE: |
| |
|
|
[NAME] |
