EXHIBIT 10.60
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of February
1, 2000 by and between ________________, a natural person ("Employee"), and
______________, a Delaware corporation (the "Company").
WHEREAS Employee has been hired by the Company to serve as____________
of the Company and the Company desires to continue to retain the services of
Employee in such capacity and Employee is willing to provide such services on
the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing recital and the
mutual covenants and agreements set forth below, the parties hereto agree as
follows:
1. EMPLOYMENT AND TERM.
(a) FULL TIME AND BEST EFFORTS. Subject to the terms set forth
herein, the Company agrees to employ Employee in a management capacity and
Employee hereby accepts such employment. During the term of his employment,
Employee will devote his full time, best efforts and attention to the
performance of his duties hereunder and to the business and affairs of the
Company and its subsidiaries.
(b) DUTIES. Employee shall perform such duties for the Company
and its subsidiaries as are customarily associated with a management position,
consistent with the Bylaws of the Company and as required by the officer or
officers to whom Employee reports.
(c) COMPANY POLICIES. The employment relationship between the
parties shall be governed by the general employment policies and practices of
the Company, including but not limited to those relating to protection of
confidential information and assignment of inventions, except that when the
terms of this Agreement differ from or are in conflict with such employment
policies and practices, this Agreement shall control.
(d) TERM. The initial term of employment of Employee under
this Agreement shall begin as of the date hereof and end on the third
anniversary the date hereof, subject to the provisions for termination contained
in Section 4 and renewal contained in Section 1(e).
(e) RENEWAL. Unless the Company shall have given Employee
notice that this Agreement shall not be renewed at least 30 days prior to the
end of the initial term referred to in Section 1(d), the term of this Agreement
shall be automatically extended for a period of one year, such procedure to be
followed in each such successive period.
2. COMPENSATION AND BENEFITS.
(a) SALARY. Employee shall receive for services to be rendered
hereunder an annual base salary of $_____________, 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. The Company shall
review Employee's salary on an annual basis and may, in its sole discretion,
increase Employee's salary.
(b) INCENTIVE PLANS. During the term hereof, Employee shall be
eligible to participate in any annual incentive bonus plan and long-term
incentive plan (including, without limitation, any stock option plan) of the
Company generally available to Company employees of a level comparable to
Employee. Such participation shall be subject to and on a basis consistent with
the terms, conditions and administration of any such plan. Employee understands
that (i) the Company shall have discretion to determine Employee's level of
participation in any such plan and (ii) 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.
(c) PARTICIPATION IN BENEFIT PLANS. During the term hereof,
Employee shall be entitled to participate in any group insurance,
hospitalization, medical, dental, health and accident, disability, retirement
income 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. Employee understands that any such plans may
be modified or eliminated in the Company's discretion in accordance with
applicable law.
(d) VACATION. Employee shall be entitled to a period of annual
paid vacation time equal to the period provided to employees of a comparable
level by the Company's policies and procedures. The days selected for Employee's
vacation must be mutually agreeable to the Company and Employee.
3. BUSINESS EXPENSES. Employee shall be reimbursed for documented and
reasonable business expenses in connection with the performance of his duties
hereunder.
4. TERMINATION OF EMPLOYMENT. The date on which Employee's employment
by the Company ceases, under any of the following circumstances, shall be
defined herein as the "Termination Date."
(a) TERMINATION FOR CAUSE.
(i) TERMINATION; PAYMENT OF ACCRUED SALARY AND
VACATION. The Company may terminate Employee's employment at any time for cause,
immediately upon written notice to Employee of the circumstances leading to such
termination for cause. If Employee's employment is terminated for cause,
Employee shall receive payment for all accrued salary and vacation time through
the Termination Date, which in this event shall be the date upon which notice of
termination is given. The Company shall have no obligation to pay severance of
any kind nor to make any payment in lieu of notice if Employee is terminated for
cause.
(ii) DEFINITION OF CAUSE. "CAUSE" means the
occurrence or existence of any of the following with respect to Employee, as
determined by the Company in its sole discretion: (A) a material breach by
Employee of (1) 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 (2) the terms of his employment,
if in any such case
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such material breach remains uncured after the lapse of 30 days following the
date that the Company has given Employee written notice thereof; (B) the
material breach by Employee 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 (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 Employee unfit to serve in his capacity as an employee of the Company or
its Affiliates.
(b) VOLUNTARY TERMINATION. Employee may voluntarily terminate
his employment with the Company at any time upon 30 days' prior written notice.
On the Termination Date, Employee shall receive payment for all accrued salary
and vacation time through the Termination Date, after which no further
compensation of any kind or severance payment will be payable under this
Agreement.
(c) TERMINATION UPON DISABILITY. The Company may terminate
Employee's employment in the event Employee suffers a disability that renders
Employee 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 within any six month period. After the Termination
Date, which in this event shall be the date upon which notice of termination is
given, no further compensation will be payable under this Agreement. The
foregoing shall not affect any rights that Employee may have under applicable
workers' compensation laws or any disability plan of the Company.
(d) TERMINATION WITHOUT CAUSE. The Company may terminate
Employee's employment without "cause" (as defined above) at any time upon 30
days' prior written notice. On the Termination Date, Employee shall receive
payment for all accrued salary and vacation time through the Termination Date
and thereafter the Company shall, subject to Section 4(f), pay Employee as
severance an amount equivalent to 100% of Employee's annual base salary as in
effect immediately prior to the Termination Date, less standard withholdings for
taxes and social security and the like. The severance shall be payable in equal
installments on each of the Company's regular payroll dates during the 12-month
period commencing on the first such payroll date following the Termination Date.
Employee will be deemed to have been terminated without cause if the Company
elects not to renew this Agreement pursuant to Section 1(e).
(e) FUNDAMENTAL CHANGES. If the Company (i) materially
diminishes Employee's duties, authority, responsibility or compensation without
performance justification, or (ii) breaches this Agreement in any material
respect, Employee may terminate his employment PROVIDED that Employee 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 Employee shall be entitled to the severance
payments provided in Section 4(d).
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(f) EMPLOYEE'S DEATH. If Employee dies, his beneficiaries
shall receive payment for all accrued salary and vacation time through the date
of death, after which no further compensation of any kind or severance payment
will be payable under this Agreement.
(g) EARNED BONUS. If Employee's employment hereunder is
terminated by the Company or Employee for any reason, Employee shall be entitled
to receive on the Termination Date, in addition to any other payments called for
by this Section 4, his Earned Bonus, if any, less standard withholdings for
taxes and social security and the like. "Earned Bonus" means any bonus that is
payable to Employee with respect to the calendar year preceding the Termination
Date but that has not been paid prior to the Termination Date.
5. PROPRIETARY INFORMATION OBLIGATIONS. Prior to and/or during the term
of employment under this Agreement, Employee 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 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"). Employee shall not disclose any of the
Proprietary Information directly or indirectly, or use it in any way, either
during the term of this Agreement, 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 Employee or otherwise coming into
his possession prior to or during the term of this Agreement, shall remain the
exclusive property of the Company 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 Employee's duties hereunder, and if removed shall be
immediately returned upon any termination of his employment and no copies
thereof shall be kept by Employee.
6. NONINTERFERENCE. While employed by the Company and for a period of
three years thereafter, Employee shall not, without the prior written consent of
the Company, interfere with the Company by directly or indirectly soliciting,
attempting to solicit, inducing, or otherwise causing or assisting any person
who is then employed by the Company to terminate such employment in order to
become an employee, consultant or independent contractor to or for any employer
other than the Company.
7. NONCOMPETITION. Employee agrees that during the term of this
Agreement and for a period of 18 months after the termination hereof, 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, 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
similar to or in competition with the Business (or any portion thereof) in any
state in which the Company was conducting business on the date on which Employee
ceased to be an employee of the Company; PROVIDED, HOWEVER, that the foregoing
shall not prevent Employee 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
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designated as national market system securities on an interdealer quotation
system by the National Association of Securities Dealers, Inc.
8. REMEDIES. Employee acknowledges that a breach or threatened breach
by Employee of any the provisions of Sections 5, 6 or 7 will result in the
Business and the Company suffering irreparable harm that cannot be calculated or
fully or adequately compensated by recovery of damages alone. Accordingly,
Employee 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.
9. MISCELLANEOUS.
(a) NOTICES. Any notices provided hereunder must be in writing
and shall be deemed effective upon the earlier of personal delivery (including
personal delivery by telecopy, if a copy is sent by mail as follows) or the
third day after mailing by first class mail to the recipient at the address
indicated below:
To the Company:
c/o Aftermarket Technology Corp.
Xxx Xxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
To Employee:
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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. If any term or provision (or any portion
thereof) of this Agreement is determined by a court to be invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other terms
and provisions (or other portions thereof) of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not materially affected. Upon such
determination that any term or provision (or any portion thereof), is invalid,
illegal or incapable of being enforced, this Agreement shall be deemed to be
modified so as to effect the original intent of the parties as closely as
possible to the end that the transactions contemplated hereby and the terms and
provisions hereof are fulfilled to the greatest extent possible.
(c) ENTIRE AGREEMENT. This Agreement constitutes the final,
complete, and exclusive embodiment of the entire agreement and understanding
between the parties related to
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the subject matter hereof and supersedes all prior or contemporaneous
understandings, agreements, or representations by or between the parties,
written or oral.
(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 Employee and the Company, and
their respective successors and assigns, except that Employee may not assign 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.
(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. This Agreement shall be construed in
accordance with and governed by the internal laws (without reference to choice
or conflict of laws) of the State of Illinois.
(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.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
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[Employee]
[THE COMPANY]
By:
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Xxxxxxx X. XxXxxx
Chief Executive Officer
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