AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT BETWEEN AND GENUINE PARTS COMPANY
1. Certain Definitions |
1 | |||
2. Change in Control |
1 | |||
3. Employment Period |
3 | |||
4. Terms of Employment |
3 | |||
(a) Position and Duties |
3 | |||
(b) Compensation |
3 | |||
5. Termination of Employment |
4 | |||
(a) Death or Disability |
4 | |||
(b) Cause |
5 | |||
(c) Good Reason |
5 | |||
(d) Notice of Termination |
6 | |||
(e) Date of Termination |
6 | |||
6. Obligations of the Company upon Termination |
7 | |||
(a) Termination by Executive for Good Reason; Termination by the Company other than for Cause or Disability |
7 | |||
(b) Death or Disability |
8 | |||
(c) Cause; Other than for Good Reason |
8 | |||
(d) Expiration of Employment Period |
9 | |||
7. Non-exclusivity of Rights |
9 | |||
8. Full Settlement; No Mitigation |
9 | |||
9. Costs of Enforcement |
9 | |||
10. Certain Additional Payments by the Company |
10 | |||
11. Restrictions on Conduct of Executive |
12 | |||
12. Arbitration |
12 | |||
13. Successors |
13 | |||
14. Miscellaneous |
13 | |||
(a) Governing Law |
13 | |||
(b) Captions |
13 | |||
(c) Amendments |
13 | |||
(d) Notices |
13 | |||
(e) Severability |
14 | |||
(f) Withholding |
14 | |||
(g) Waivers |
14 | |||
(h) Status Before and After Effective Date |
14 | |||
(i) Indemnification |
14 | |||
(j) Related Agreements |
14 | |||
(k) Counterparts |
14 | |||
15. Code Section 409A |
14 |
THIS AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT (the “Agreement”) amends and restates in
its entirety as of the 19th day of November, 2007, the Change in Control Agreement by
and between Genuine Parts Company, a Georgia corporation (the “Company”) and
(“Executive”), originally dated as of the day of 2006.
The Board of Directors of the Company (the “Board”), has determined that it is in the best
interests of the Company and its shareowners to assure that the Company will have the continued
dedication of Executive, notwithstanding the possibility, threat or occurrence of a Change of
Control (as defined below) of the Company. The Board believes it is imperative to diminish the
inevitable distraction of Executive by virtue of the personal uncertainties and risks created by a
threatened or pending Change of Control and to encourage Executive’s full attention and dedication
to the Company currently and in the event of any threatened or pending Change of Control, and to
provide Executive with compensation and benefits arrangements upon a Change of Control which ensure
that the compensation and benefits expectations of Executive will be satisfied. Therefore, in
order to accomplish these objectives, the Board has caused the Company to enter into this
Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions.
(a) The “Effective Date” shall mean the first date during the Change of Control Period (as
defined in Section l(b)) on which a Change of Control (as defined in Section 2) occurs. Anything
in this Agreement to the contrary notwithstanding, if a Change of Control occurs and if Executive’s
employment with the Company is terminated (either by the Company without Cause or by Executive for
Good Reason, as provided later in this Agreement) within six (6) months prior to the date on which
the Change of Control occurs, and if it is reasonably demonstrated by Executive that such
termination of employment (i) was at the request of a third party who has taken steps reasonably
calculated to effect a Change of Control or (ii) otherwise arose in connection with or anticipation
of a Change of Control, then for all purposes of this Agreement the “Effective Date” shall mean the
date immediately prior to the date of such termination of employment.
(b) The “Change of Control Period” shall mean the period commencing on the original date of
this Agreement and ending on the third anniversary of the date hereof; provided, however, that
commencing on the date one year after the date hereof, and on each annual anniversary of such date
(such date and each annual anniversary thereof shall be hereinafter referred to as the “Renewal
Date”), unless previously terminated, the Change of Control Period shall be automatically extended
so as to terminate three years from such Renewal Date, unless at least 60 days prior to the Renewal
Date the Company shall give notice to Executive that the Change of Control Period shall not be so
extended.
(c) “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and
includes a reference to the underlying proposed or final regulations.
2. Change of Control. For the purposes of
this Agreement, a “Change of Control” shall mean the occurrence of any of the following events:
(a) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the 1934 Act) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the 0000 Xxx) of 20% or more of the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the election of directors (the
“Outstanding Company Voting Securities”); provided, however, that for purposes of this subsection
(a), the following acquisitions shall not constitute a Change in Control: (i) any acquisition by a
Person who is on the Effective Date the beneficial owner of 20% or more of the Outstanding Company
Voting Securities, (ii) any acquisition directly from the Company, (iii) any acquisition by the
Company, (iv) any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company, or (v) any acquisition by
any corporation pursuant to a transaction which complies with clauses (i), (ii) and (iii) of
subsection (c) of this definition; or
(b) individuals who, as of immediately prior to the Effective Date, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the Effective Date whose election,
or nomination for election by the Company’s shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the Board; or
(c) consummation of a reorganization, merger, consolidation or share exchange or sale or other
disposition of all or substantially all of the assets of the Company (a “Business Combination”), in
each case, unless, following such Business Combination, (i) all or substantially all of the
individuals and entities who were the beneficial owners of the Outstanding Company Voting
Securities immediately prior to such Business Combination beneficially own, directly or indirectly,
more than 50% of the combined voting power of the then outstanding voting securities entitled to
vote generally in the election of directors of the corporation resulting from such Business
Combination (including, without limitation, a corporation which as a result of such transaction
owns the Company or all or substantially all of the Company’s assets either directly or through one
or more subsidiaries) in substantially the same proportions as their ownership, immediately prior
to such Business Combination of the Outstanding Company Voting Securities, and (ii) no Person
(excluding any corporation resulting from such Business Combination or any employee benefit plan
(or related trust) of the Company or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 20% or more of the combined voting power of the then
outstanding voting securities of such corporation except to the extent that such ownership existed
prior to the Business Combination, and (iii) at least a majority of the members of the board of
directors of the corporation resulting from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement, or of the action of the Board,
providing for such Business Combination; or
(d) approval by the shareholders of the Company of a complete liquidation or dissolution of
the Company.
3. Employment Period. The Company hereby agrees to continue Executive in its employ,
and Executive hereby agrees to remain in the employ of the Company subject to the
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terms and
conditions of this Agreement, for the period commencing on the Effective Date and ending on the
second anniversary of such date (the “Employment Period”).
4. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period, (A) Executive’s position (including status, offices, titles
and reporting requirements), authority, duties and responsibilities shall be at least commensurate
in all material respects with the most significant of those held, exercised and assigned at any
time during the 120-day period immediately preceding the Effective Date, and (B) Executive’s
services shall be performed at the location where Executive was employed immediately preceding the
Effective Date or any office or location less than 50 miles from such location.
(ii) During the Employment Period, and excluding any periods of vacation and sick leave to
which Executive is entitled, Executive agrees to devote reasonable attention and time during normal
business hours to the business and affairs of the Company and, to the extent necessary to discharge
the responsibilities assigned to Executive hereunder, to use Executive’s reasonable best efforts to
perform faithfully and efficiently such responsibilities. During the Employment Period it shall
not be a violation of this Agreement for Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking engagements or teach at educational
institutions and (C) manage personal investments, so long as such activities do not significantly
interfere with the performance of Executive’s responsibilities as an employee of the Company in
accordance with this Agreement. It is expressly understood and agreed that to the extent that any
such activities have been conducted by Executive prior to the Effective Date, the continued conduct
of such activities (or the conduct of activities similar in nature and scope thereto) subsequent to
the Effective Date shall not thereafter be deemed to interfere with the performance of Executive’s
responsibilities to the Company.
(b) Compensation.
(i) Base Salary. During the Employment Period, Executive shall receive an annual base
salary (“Annual Base Salary”) at a rate at least equal to the rate of base salary in effect on the
date of this Agreement or, if greater, on the Effective Date, paid or payable (including any base
salary which has been earned but deferred) to Executive by the Company and its affiliated
companies. During the Employment Period, the Annual Base Salary shall be reviewed no more than 12
months after the last salary increase awarded to Executive prior to the Effective Date and
thereafter at least annually. Any increase in Annual Base Salary shall not serve to limit or
reduce any other obligation to Executive under this Agreement. Annual Base Salary shall not be
reduced after any such increase and the term Annual Base Salary as used in this Agreement shall
refer to Annual Base Salary as so increased. As used in this Agreement, the term “affiliated
companies” shall include any company controlled by, controlling or under common control with the
Company.
(ii) Annual Bonus. In addition to Annual Base Salary, Executive shall be awarded for
each fiscal year ending during the Employment Period an annual target bonus opportunity in cash at
least equal (expressed as a percentage of salary) to Executive’s target bonus opportunity for the
last full fiscal year prior to the Effective Date (annualized in the event
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that Executive was not
employed by the Company for the whole of such fiscal year) (the “Target Annual Bonus”).
(iii) Incentive, Savings and Retirement Plans. During the Employment Period,
Executive shall be entitled to participate in all incentive, savings and retirement plans,
practices, policies and programs applicable generally to other peer executives of the Company and
its affiliated companies, but in no event shall such plans, practices, policies and programs
provide Executive with incentive opportunities, savings opportunities and retirement benefit
opportunities, in each case, less favorable, in the aggregate, than the most favorable of those
provided by the Company and its affiliated companies for Executive under such plans, practices,
policies and programs as in effect at any time during the 120-day period immediately preceding the
Effective Date or if more favorable to Executive, those provided generally at any time after the
Effective Date to other peer executives of the Company and its affiliated companies.
(iv) Welfare Benefit Plans. During the Employment Period, Executive and/or
Executive’s eligible dependents, as the case may be, shall be eligible for participation in and
shall receive all benefits under welfare benefit plans, practices, policies and programs provided
by the Company and its affiliated companies (including, without limitation, medical, prescription,
dental, disability, employee life, group life, accidental death, vision, employee assistance
program, flexible spending accounts and business travel accident insurance plans and programs) to
the extent applicable generally to other peer executives of the Company and its affiliated
companies, but in no event shall such plans, practices, policies and programs provide Executive
with benefits which are less favorable, in the aggregate, than the most favorable of such plans,
practices, policies and programs in effect for Executive at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to Executive, those provided
generally at any time after the Effective Date to other peer executives of the Company and its
affiliated companies. Notwithstanding the foregoing, the Company reserves the right to limit the
Executive’s participation in any welfare benefit plan and to take any action it deems appropriate
under rules uniformly applicable to similarly situated Executives who are also participants in such
plans, to ensure compliance with the nondiscrimination requirements imposed by the Code.
(v) Expenses, Fringe Benefits and Paid Time Off. During the Employment Period,
Executive shall be entitled to expense reimbursement, fringe benefits and paid time off in
accordance with the most favorable plans, practices, programs and policies of the Company and its
affiliated companies in effect for Executive at any time during the 120-day period immediately
preceding the Effective Date or, if more favorable to Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and its affiliated companies.
5. Termination of Employment.
(a) Death or Disability. Executive’s employment shall terminate automatically upon
Executive’s death during the Employment Period. If the Company determines in good faith that the
Disability of Executive
has occurred during the Employment Period (pursuant to the definition of Disability set forth
below), it may give to Executive written notice of its intention to terminate Executive’s
employment. In such event, Executive’s employment with the Company shall terminate effective on
the 30th day after receipt of such written notice by Executive (the “Disability Effective Date”),
provided that, within the 30 days after such receipt, Executive shall not have returned to
full-time performance of Executive’s
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duties. For purposes of this Agreement, “Disability” has the
meaning assigned such term in the Company’s long-term disability plan, from time to time in effect.
At the request of Executive or his personal representative, the Board’s determination that the
Disability of Executive has occurred shall be certified by two physicians mutually agreed upon by
Executive, or his personal representative, and the Company. Failing such independent certification
(if so requested by Executive), Executive’s termination shall be deemed a termination by the
Company without Cause and not a termination by reason of his Disability.
(b) Cause. The Company may terminate Executive’s employment during the Employment
Period for Cause or without Cause. For purposes of this Agreement, a termination shall be
considered to be for “Cause” if it occurs in conjunction with a determination by the Board that
Executive has committed or engaged in either (i) any act that constitutes, on the part of
Executive, fraud, dishonesty, breach of fiduciary duty, misappropriation, embezzlement or gross
misfeasance of duty; (ii) willful disregard of published Company policies and procedures or codes
of ethics; or (iii) conduct by Executive in his office with the Company that is grossly
inappropriate and demonstrably likely to lead to material injury to the Company, as determined by
the Board acting reasonably and in good faith; provided, that in the case of (ii) or (iii) above,
such conduct shall not constitute “Cause” unless the Board shall have delivered to Executive notice
setting forth with specificity (A) the conduct deemed to qualify as “Cause”, (B) reasonable action
that would remedy such objection, and (C) a reasonable time (not less than 30 days) within which
Executive may take such remedial action, and Executive shall not have taken such specified remedial
action within the specified time.
(c) Good Reason. Executive’s employment may be terminated by Executive for Good Reason
or without Good Reason. For purposes of this Agreement, “Good Reason” shall mean, without the
written consent of Executive:
(i) the assignment to Executive of any duties materially inconsistent with Executive’s
position (including status, offices, titles and reporting requirements), authority, duties or
responsibilities as in effect immediately prior to the Effective Date, or any other action by the
Company which results in a material diminution in such position, authority, duties or
responsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action not
taken in bad faith and which is remedied by the Company promptly after receipt of notice thereof
given by Executive;
(ii) a material reduction by the Company in Executive’s Base Salary or Target Annual Bonus,
as in effect immediately prior to the Effective Date, as the same may be increased from time to
time;
(iii) any failure by the Company to comply with any of the other provisions of Section 4(b)
of this Agreement, other than an isolated, insubstantial and inadvertent failure not occurring in
bad faith and which is remedied by the Company promptly after receipt of notice thereof given by
Executive;
(iv) the Company’s requiring Executive to be based at any office or location other than as
provided in Section 4(a)(i)(B) hereof;
(v) any failure by the Company to comply with and satisfy Section 13(c) of this Agreement; or
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(vi) the material breach by the Company of any other provision of this Agreement;
Good Reason shall not include Executive’s death or Disability. Executive’s continued
employment shall not constitute consent to, or a waiver of rights with respect to, any circumstance
constituting Good Reason hereunder. A termination by Executive shall not constitute termination
for Good Reason unless Executive shall first have delivered to the Company, within 90 days of the
occurrence of the event giving rise to Good Reason, written notice setting forth with specificity
the occurrence deemed to give rise to a right to terminate for Good Reason, and there shall have
passed a reasonable time (not less than 60 days) within which the Company may take action to
correct, rescind or otherwise substantially reverse the occurrence supporting termination for Good
Reason as identified by Executive.
(d) Notice of Termination. Any termination by the Company or Executive shall be
communicated by Notice of Termination to the other party hereto given in accordance with Section
14(d) of this Agreement. 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)
to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive’s employment under the provision so indicated, and
(iii) if the Date of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date. The failure by Executive or the Company to set forth in
the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason or
Cause shall not waive any right of Executive or the Company, respectively, hereunder or preclude
Executive or the Company, respectively, from asserting such fact or circumstance in enforcing
Executive’s or the Company’s rights hereunder.
(e) Date of Termination. “Date of Termination” means (i) if the Executive’s employment
is terminated by the Executive for Good Reason, the date specified in the Notice of Termination,
which may not be less than 60 days after the date of delivery of the Notice of Termination;
provided that the Company may specify any earlier Date of Termination, (ii) if the Executive’s
employment is terminated by the Company for Cause, the date specified in the Notice of Termination,
which in the case of a termination for Cause as defined in Section 5(b)(iii) may not be less than
30 days after the date of delivery of the Notice of Termination, (iii) if the Executive’s
employment is terminated by the Company other than for Cause or Disability, the Date of Termination
shall be the date on which the Company notifies the Executive of such termination or any later date
specified in such notice, and (iv) if the Executive’s employment is terminated by reason of death
or Disability, the Date of Termination shall be the date of death or the Disability Effective Date,
as the case may be.
6. Obligations of the Company upon Termination.
(a) Termination by Executive for Good Reason; Termination by the Company other than for
Cause or Disability. If, during the Employment Period the Company shall terminate Executive’s
employment other than for Cause or Disability, or Executive shall terminate employment for Good
Reason, then and, with respect to the payments and benefits described in clauses (i)(B) and (ii)
below, only if Executive executes a Release in substantially the form of Exhibit A hereto (the
“Release”):
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(i) the Company shall pay to Executive in a single lump sum cash payment within 30 days after
the Date of Termination (or any later date that may be required pursuant to Section 15 hereof), the
aggregate of the following amounts:
A. the sum of (1) Executive’s Annual Base Salary through the Date of Termination to the extent
not theretofore paid, (2) the product of (x) the Executive’s Target Annual Bonus for the year in
which the Date of Termination occurs, and (y) a fraction, the numerator of which is the number of
days in the current fiscal year through the Date of Termination, and the denominator of which is
365, and (3) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts
described in clauses (1), (2) and (3) shall be hereinafter referred to as the “Accrued
Obligations”); and
B. a severance payment (the “Severance Payment”) equal to [three][two] times the sum of (x)
Executive’s Annual Base Salary as in effect immediately prior to the Date of Termination, and (y)
the average of the annual bonuses paid to Executive for the three years prior to the year in which
the Date of Termination occurs, or any lesser number of years if Executive has been employed by the
Company for less than three full years; and
(ii) the Company shall continue to provide the same level of group health coverage maintained
by the Executive on the Date of Termination for up to 24 months from the Date of Termination (the
“Welfare Benefits Continuation Period”) provided the Executive makes a timely COBRA election. For
purposes of this section 6(a)(ii), group health coverage means any of the following coverages
maintained by the Executive on the Date of Termination: medical, dental, vision, or employee
assistance benefits under the group health plan(s) sponsored by the Company covering the Executive
and his dependents. Such group health coverage is subject to any modifications made to the same
group health coverage provided to similarly situated employees, including but not limited to
termination of the group health plans sponsored by the Company.
During the first 18-months of the Welfare Benefits Continuation Period (the “COBRA Period”),
the Company shall be responsible for the employer-portion of such group health coverage that is
self-funded, and the Executive shall be responsible for any required participant contributions,
each determined in the same manner as contributions for similarly situated active employees.
During the last six months of the Welfare Benefits Continuation Period (the “Extension Period”),
the Executive shall pay the full cost of any self-funded group health coverage, and the Company
shall pay to the Executive on the first day of each month during the Extension Period, a payment
equal to the monthly cost of such self-funded group health coverage minus the monthly contribution
required from similarly situated active employees. The cost of the self-funded group health
coverage will be the monthly cost as determined by the Company in accordance with reasonably
acceptable means, which shall equal the “applicable premium” under COBRA for such benefits for
the applicable year. All payments by the Company during the Extension Period shall be considered
taxable income to the Executive.
The Welfare Benefits Continuation Period shall run concurrently with the applicable COBRA period.
If the Executive exhausts his maximum COBRA coverage prior to the end of Welfare Benefits
Continuation Period, the Company shall provide the Executive with access to employer-sponsored
coverage for the remainder of the 24-month period. The Company, in its sole discretion, may
terminate such group health coverage before the end of the 24-months if: (1) the Executive’s or
dependent’s coverage would otherwise end before the maximum COBRA continuation period under COBRA;
or (2) the Executive’s or dependent’s coverage would be
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terminated if the Executive were an active
employee. Notwithstanding anything in this Agreement to the contrary, all payments by the Company
for such extended group health coverage during the first 18-months of the Welfare Benefits
Continuation Period shall be imputed as income to Executive and any contributions from the
Executive will be made on an after-tax basis.
(iii) the terms and conditions of the Company’s long-term incentive plans and any applicable
award agreements thereunder shall control with respect to the vesting of any equity or long-term
cash incentive awards thereunder then held by Executive; and
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide
to Executive any other amounts or benefits required to be paid or provided or which Executive is
eligible to receive under any plan, program, policy or practice or contract or agreement of the
Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred
to as the “Other Benefits”).
(b) Death or Disability. If Executive’s employment is terminated by reason of
Executive’s death or Disability during the Employment Period, this Agreement shall terminate
without further obligations to Executive or Executive’s legal representatives under this Agreement,
other than for payment of Accrued Obligations and the timely payment or provision of Other
Benefits. Accrued Obligations shall be paid to Executive or Executive’s estate or beneficiary, as
applicable, in a lump sum in cash within 30 days of the Date of Termination. With respect to the
provision of Other Benefits, the term Other Benefits as used in this Section 6(b) shall include
without limitation, and Executive or Executive’s estate and/or beneficiaries shall be entitled to
receive, benefits under such plans, programs, practices and policies relating to death or
disability benefits, if any, as are applicable to Executive on the Date of Termination.
(c) Cause; Other than for Good Reason. If Executive’s employment shall be terminated
for Cause during the Employment Period, this Agreement shall terminate without further obligations
to Executive other than the obligation to pay to Executive (i) his Annual Base Salary through the
Date of Termination and any accrued vacation pay to the extent then unpaid, and (ii) any Other
Benefits, in each case to the extent then unpaid. If Executive voluntarily terminates employment
during the Employment Period, excluding a termination for Good Reason, this Agreement shall
terminate without further obligations to Executive, other than for Accrued Obligations and the
timely payment or provision of Other Benefits. In each such case, all Accrued Obligations shall be
paid to Executive in a lump sum in cash within 30 days of the Date of Termination.
(d) Expiration of Employment Period. If Executive’s employment shall be terminated due
to the normal expiration of the Employment Period, this Agreement shall terminate without further
obligations to Executive, other than for payment of Accrued Obligations and the timely payment or
provision of Other Benefits. In such case, all Accrued Obligations shall be paid to Executive in a
lump sum in cash within 30 days of the Date of Termination. If Executive’s employment is not
terminated upon the normal expiration of the Employment Period, he shall continue as an at-will
employee of the Company and this Agreement shall be of no further force or effect.
7. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit
Executive’s continuing or future participation in any plan, program, policy or practice provided by
the Company or any of its affiliated companies and for which Executive may qualify, nor, subject to
Section 14(j), shall anything herein limit or otherwise affect such rights as Executive
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may have
under any contract or agreement with the Company or any of its affiliated companies. Amounts which
are vested benefits or which Executive is otherwise entitled to receive under any plan, policy,
practice or program of or any contract or agreement with the Company or any of its affiliated
companies at or subsequent to the Date of Termination shall be payable in accordance with such
plan, policy, practice or program or contract or agreement except as explicitly modified by this
Agreement.
8. Full Settlement; No Mitigation. The Company’s obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which
the Company may have against Executive or others. In no event shall Executive be obligated to seek
other employment or take any other action by way of mitigation of the amounts payable to Executive
under any of the provisions of this Agreement and such amounts shall not be reduced whether or not
Executive obtains other employment.
9. Costs of Enforcement.
(a) The Company shall reimburse Executive, on a current basis, for all reasonable legal fees
and related expenses incurred by Executive in contesting or disputing any termination of
Executive’s employment after the Effective Date, or Executive’s seeking to obtain or enforce any
right or benefit provided by this Agreement, in each case, regardless of whether or not Executive’s
claim is upheld by an arbitral panel or a court of competent jurisdiction; provided, however,
Executive shall be required to repay to the Company any such amounts to the extent that an arbitral
panel or a court issues a final and non-appealable order, judgment, decree or award setting forth
the determination that the position taken by Executive was frivolous or advanced by Executive in
bad faith. All such payments shall be made within five (5) business days after delivery of
Executive’s respective written requests for payment accompanied with such evidence of fees and
expenses incurred as the Company reasonably may require, but in any event no later than December 31
of the year following the calendar year in which the expense was incurred.
(b) In addition, Executive shall be entitled to be paid all reasonable legal fees and
expenses, if any, incurred in connection with any tax audit or proceeding to the extent
attributable to the application of Section 4999 of the Code to any payment or benefit hereunder.
Such reimbursement of expenses shall be made on a current basis, as incurred, and in no event later
than December 31 of the year following the calendar year in which the taxes that are the
subject of the audit or proceeding are remitted to the taxing authority, or where as a result
of such audit or proceeding no taxes are remitted, December 31 of the year following the calendar
year in which the audit is completed or there is a final and non-appealable settlement or other
resolution of the proceeding.
(c) The amount reimbursable by the Company under this Section 9 in any one calendar year shall
not affect the amount reimbursable in any other calendar year. Executive’s rights pursuant to this
Section 9 shall expire at the end of five years after the date of termination and shall not be
subject to liquidation or exchange for another benefit.
10. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding and except as set forth below,
in the event it shall be determined that any payment or distribution by the
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Company to or for the
benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise, but determined without regard to any additional payments required
under this Section 10) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of
the Code or any interest or penalties are incurred by Executive with respect to such excise tax
(such excise tax, together with any such interest and penalties, are hereinafter collectively
referred to as the “Excise Tax”), then Executive shall be entitled to receive an additional payment
(a “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes (including
any interest or penalties imposed with respect to such taxes), including, without limitation, any
income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed
upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise
Tax imposed upon the Payments.
Notwithstanding the foregoing provisions of this Section 10(a), if the Parachute Value (as
defined below) of all Payments does not exceed 110% of Executive’s Safe Harbor Amount (as defined
below), then the Company shall not pay Executive a Gross-Up Payment, and the Payments due under
this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate,
equals the Safe Harbor Amount; provided, that if even after all Payments due under this Agreement
are reduced to zero, the Parachute Value of all Payments would still exceed the Safe Harbor Amount,
then no reduction of any Payments shall be made and the Gross -Up Payment shall be made. The
reduction of the Payments due hereunder, if applicable, shall be made by first reducing the
Severance Payment under Section 6(a)(i), unless an alternative method of reduction is elected by
Executive, and in any event shall be made in such a manner as to maximize the economic present
value of all Payments actually made to Executive, determined by the Accounting Firm (as defined in
Section 10(b) below) as of the date of the change of control for purposes of Section 280G of the
Code using the discount rate required by Section 280G(d)(4) of the Code. For purposes of this
Section 10, the “Parachute Value” of a Payment means the present value as of the date of the change
of control for purposes of Section 280G of the Code of the portion of such Payment that constitutes
a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm
for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.
For purposes of this Section 10, Executive’s “Safe Harbor Amount” means one dollar less than three
times Executive’s “base amount” within the meaning of Section 280G(b)(3) of the Code.
(b) Subject to the provisions of Section 10(c), all determinations required to be made under
this Section 10, including whether and when a Gross-Up Payment is required and
the amount of such Gross-Up Payment and the assumptions to be used in arriving at such
determination, shall be made by the firm serving as independent auditors of the Company immediately
prior to the Effective Date (the “Accounting Firm”) which shall provide detailed supporting
calculations both to the Company and Executive within 15 business days of the receipt of notice
from Executive that there has been a Payment, or such earlier time as is requested by the Company.
In the event that the Accounting Firm is serving as accountant or auditor for the individual,
entity or group effecting the Change of Control, Executive shall appoint another nationally
recognized accounting firm to make the determinations required hereunder (which accounting firm
shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant
to this Section 10, shall-be paid by the Company to Executive within five days of the receipt of
the Accounting Firm’s determination, but in no event later than December 31 of the year after the
year in which Executive remits taxes to the applicable taxing authorities. Any determination by
the Accounting Firm shall be binding upon the Company and Executive. As a result of the
uncertainty in the application of Section 4999 of the Code at the time of the
- 10 -
initial determination
by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been
made by the Company should have been made (“Underpayment”), consistent with the calculations
required to be made hereunder. In the event that the Company exhausts its remedies pursuant to
Section 10(c) and Executive thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of Executive, but no later
than December 31 of the year after the year in which the Underpayment is determined to exist.
(c) 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 the Gross-Up Payment. Such
notification shall be given as soon as practicable but no later than ten 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 30-day period following the date on which it 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 of the foregoing provisions of this Section
10(c), the Company shall control all proceedings taken in connection with such contest and, at its
sole option, may pursue or forgo 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
- 11 -
of taxes for
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.
(d) If, after the receipt by Executive of an amount advanced by the Company pursuant to
Section 10(c), Executive becomes entitled to receive any refund with respect to such claim,
Executive shall (subject to the Company’s complying with the requirements of Section 10(c))
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 Section 10(c), 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 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. Confidential Information. Executive shall hold in a fiduciary capacity for the
benefit of the Company all secret or confidential information, knowledge or data relating to the
Company or any of its affiliated companies, and their respective businesses, which shall have been
obtained by Executive during Executive’s employment by the Company or any of its affiliated
companies. After termination of Executive’s employment with the Company, Executive shall not,
without the prior written consent of the Company or as may otherwise be required by law or legal
process, communicate or divulge any such information, knowledge or data to anyone other than the
Company and those designated by it. It is understood, however, that the obligations of this
Section 11 shall not apply to the extent that the aforesaid matters (i) are disclosed in
circumstances where Executive is legally required to do so or (ii) become generally known to and
available for use by the public other than by acts by Executive or representatives of Executive in
violation of this Agreement.
12. Arbitration. Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration in the State of Georgia by three arbitrators
in accordance with the rules of the Employment Dispute
Rules of the American Arbitration Association and the Federal Arbitration Act, 9 U.S.C. §1,
et. seq. Judgment may be entered on the arbitrators’ award in any court having jurisdiction.
Except as provided in Section 9, the Company shall bear all costs and expenses arising in
connection with any arbitration proceeding pursuant to this Section 12.
13. Successors.
(a) This Agreement is personal to Executive and without the prior written consent of the
Company shall not be assignable by Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by Executive’s legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.
- 12 -
(c) The Company will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of the
Company to assume expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession had taken place. As
used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor
to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
14. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Georgia, without reference to principles of conflict of laws.
(b) Captions. The captions of this Agreement are not part of the provisions hereof and
shall have no force or effect.
(c) Amendments. This Agreement may not be amended or modified otherwise than-by a
written agreement executed by the parties hereto or their respective successors and legal
representatives.
(d) Notices. All notices and other communications hereunder shall be in writing and
shall be given by hand delivery to the other party or by registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to Executive:
|
the address set forth below under Executive’s signature | |
If to the Company:
|
Genuine Parts Company | |
| 0000 Xxxxxx 00 Xxxxxxx | ||
| Xxxxxxx, Xxxxxxx 00000 | ||
| Attention: Chairman of the Board | ||
| Copy to: Corporate Secretary |
or to such other address as either party shall have furnished to the other in writing in
accordance herewith. Notice and communications shall be effective when actually received by the
addressee.
(e) Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision of this Agreement,
and the Agreement shall be construed in all respects as if the invalid or unenforceable provision
were omitted.
(f) Withholding. The Company may withhold from any amounts payable under this
Agreement such federal, state, local or foreign taxes as shall be required to be withheld pursuant
to any applicable law or regulation.
(g) Waivers. Executive’s or the Company’s failure to insist upon strict compliance
with any provision of this Agreement or the failure to assert any right Executive or the Company
may have hereunder, shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.
- 13 -
(h) Status Before and After Effective Date. Executive and the Company acknowledge
that, except as may otherwise be provided under any other written agreement between Executive and
the Company, the employment of Executive by the Company is “at will” and, subject to Section 1(a)
hereof, Executive’s employment and/or this Agreement may be terminated by either Executive or the
Company at any time prior to the Effective Date, in which case Executive shall have no further
rights under this Agreement. From and after the Effective Date this Agreement shall supersede any
other agreement between the parties with respect to the subject matter hereof.
(i) Indemnification. Executive shall be entitled to the benefits of the indemnity
provided by the Company’s certificate of incorporation, bylaws, or otherwise immediately prior to
Effective Date, or any greater rights to indemnification thereafter provided to executive officers
of the Company, and any subsequent changes to the certificate of incorporation, bylaws, or
otherwise reducing the indemnity granted to such Executive shall not affect the rights granted
hereunder. The Company may not reduce these indemnity benefits confirmed to Executive hereunder
without the written consent of Executive.
(j) Related Agreements. To the extent that any provision of any other agreement
between the Company and Executive shall limit, qualify or be inconsistent with any provision of
this Agreement, then for purposes of this Agreement, while the same shall remain in force, the
provisions of this Agreement shall control and such provision of such other agreement shall be
deemed to have been superseded, and to be of no force and effect, as if such other agreement had
been formally amended to the extent necessary to accomplish such purpose.
(k) Counterparts. This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original but all of which together will constitute one and the same
instrument.
15. Code Section 409A.
(a) Notwithstanding anything in this Agreement to the contrary, to the extent that any amount
or benefit that would constitute non-exempt “deferred compensation” for purposes of Section 409A of
the Internal Revenue Code of 1986, as amended (the “Code”) would otherwise be payable or
distributable hereunder by reason of Executive’s termination of employment, such amount or benefit
will not be payable or distributable to Executive by reason of such circumstance unless (i) the
circumstances giving rise to such termination of employment meet any description or definition of
“separation from service” in Section 409A of the Code and applicable regulations (without giving
effect to any elective provisions that may be available under such definition), or (ii) the payment
or distribution of such amount or benefit would be exempt from the application of Section 409A of
the Code by reason of the short-term deferral exemption or otherwise. This provision does not
prohibit the vesting of any amount upon a termination of employment, however defined. If this
provision prevents the payment or distribution of any amount or benefit, such payment or
distribution shall be made on the date, if any, on which an event occurs that constitutes a Section
409A-compliant “separation from service” or such later date as may be required by Subsection 15(b)
below.
(b) Notwithstanding anything in this Agreement to the contrary, if any amount or benefit that
would constitute non-exempt “deferred compensation” for purposes of Section 409A of the Code would
otherwise be payable or distributable under this Agreement by
- 14 -
reason of Executive’s separation from
service during a period in which he is a Specified Employee (as defined below), then, subject to
any permissible acceleration of payment by the Company under Treas. Reg. Section 1.409A-3(j)(4)(ii)
(domestic relations order), (j)(4)(iii) (conflicts of interest), or (j)(4)(vi) (payment of
employment taxes):
(i) if the payment or distribution is payable in a lump sum, Executive’s right
to receive payment or distribution of such non-exempt deferred compensation will be
delayed until the earlier of Executive’s death or the first day of the seventh
month following Executive’s separation from service; and
(ii) if the payment or distribution is payable over time, the amount of such
non-exempt deferred compensation that would otherwise be payable during the
six-month period immediately following Executive’s separation from service will be
accumulated and Executive’s right to receive payment or distribution of such
accumulated amount will be delayed until the earlier of Executive’s death or the
first day of the seventh month following Executive’s separation from service,
whereupon the accumulated amount will be paid or distributed to Executive and the
normal payment or distribution schedule for any remaining payments or distributions
will resume.
For purposes of this Agreement, the term “Specified Employee” has the meaning given such term
in Code Section 409A and the final regulations thereunder (“Final 409A Regulations”), provided,
however, that, as permitted in the Final 409A Regulations, the Company’s Specified Employees and
its application of the six-month delay rule of Code Section 409A(a)(2)(B)(i) shall be determined in
accordance with rules adopted by the Board of Directors or a committee thereof, which shall be
applied consistently with respect to all nonqualified deferred compensation arrangements of the
Company, including this Agreement.
IN WITNESS WHEREOF, Executive has hereunto set Executive’s hand and, pursuant to the
authorization from its Board of Directors, the Company has caused these presents to be executed in
its name on its behalf, all as of the day and year first above written.
| [Executive] | ||||
| Address: | ||||
| GENUINE PARTS COMPANY |
||||
| By: | ||||
- 15 -
EXHIBIT A
Form of Release
Form of Release
This Release is granted effective as of the day of , 20 , by
(“Executive”) in favor of Genuine Parts Company (the “Company”). This is the Release referred to
that certain Employment Agreement effective as of , 20 by and between the Company and
Executive (the “Employment Agreement”). Executive gives this Release in consideration of the
Company’s promises and covenants as recited in the Employment Agreement, with respect to which this
Release is an integral part.
1. Release of the Company. Executive, for himself, his successors, assigns, attorneys,
and all those entitled to assert his rights, now and forever hereby releases and discharges the
Company and its respective officers, directors, stockholders, trustees, employees, agents, parent
corporations, subsidiaries, affiliates, estates, successors, assigns and attorneys (“the Released
Parties”), from any and all claims, actions, causes of action, sums of money due, suits, debts,
liens, covenants, contracts, obligations, costs, expenses, damages, judgments, agreements,
promises, demands, claims for attorney’s fees and costs, or liabilities whatsoever, in law or in
equity, which Executive ever had or now has against the Released Parties, including, without
limitation, any claims arising by reason of or in any way connected with any employment
relationship which existed between the Company or any of its parents, subsidiaries, affiliates, or
predecessors, and Executive. It is understood and agreed that this Release is intended to cover
all actions, causes of action, claims or demands for any damage, loss or injury, whether known or
unknown, of any nature whatsoever, including those which may be traced either directly or
indirectly to the aforesaid employment relationship, or the termination of that relationship, that
Executive has, had or purports to have, from the beginning of time to the date of this Release, and
including but not limited to claims for employment discrimination under federal or state law,
except as provided in Paragraph 2; claims arising under the Age Discrimination in Employment Act,
29 U.S.C. § 621, et seq., Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e), et
seq. or the Americans With Xxxxxxxxxxxx Xxx, 00 X.X.X. § 00000 et seq.; claims
for statutory or common law wrongful discharge, claims arising under the Fair Labor Standards Act,
29 U.S.C. § 201 et seq.; claims for attorney’s fees, expenses and costs; claims for
defamation; claims for emotional distress; claims for wages or vacation pay; claims for benefits,
including any claims arising under the Executive Retirement Income Security Act, 29 U.S.C. § 1001,
et seq.; and claims under any other applicable federal, state or local laws or legal
concepts; provided, however, that nothing herein shall release the Company of any indemnification
obligations to Executive under the Company’s bylaws, certificate of incorporation, Delaware law or
otherwise.
2. Release of Claims Under Age Discrimination in Employment Act. Without limiting the
generality of the foregoing, Executive agrees that by executing this Release, he has released and
waived any and all claims he has or may have as of the date of this Release for age discrimination
under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. Executive acknowledges
and agrees that he has been, and hereby is, advised by the Company to consult with an attorney
prior to executing this Release. Executive further acknowledges and agrees that the Company has
offered Executive the opportunity, before executing this Release, to consider this Release for a
period of twenty-one (21) calendar days; and that the consideration he receives for this Release is
in addition to amounts to which he was already entitled. It is further understood that this
Release is not effective until seven (7) calendar days after the execution of this Release and that
Executive may revoke this Release within seven (7) calendar days from the date of execution hereof.
3. Non-Admission. It is understood and agreed by Executive that the payment made to
him is not to be construed as an admission of any liability whatsoever on the part of the Company
or any of the other Releasees, by whom liability is expressly denied.
4. Acknowledgement and Revocation Period. Executive agrees that he has carefully read
this Release and is signing it voluntarily. Executive acknowledges that he has had twenty one (21)
days from receipt of this Release to review it prior to signing or that, if Executive is signing
this Release prior to the
expiration of such 21-day period, Executive is waiving his right to
review the Release for such full 21-day period prior to signing it. Executive has the right to
revoke this release within seven (7) days following the date of its execution by him. In order to
revoke this Release, Executive must deliver notice of the revocation in writing to Company’s
General Counsel before the expiration of the seven (7) day period. However, if Executive revokes
this Release within such seven (7) day period, no severance benefit will be payable to him under
the Employment Agreement and he shall return to the Company any such payment received prior to that
date.
5. No Revocation After Seven Days. Executive acknowledges and agrees that this Release
may not be revoked at any time after the expiration of the seven (7) day revocation period and that
he/she will not institute any suit, action, or proceeding, whether at law or equity, challenging
the enforceability of this Release. Executive further acknowledges and agrees that, with the
exception of an action to challenge the waiver of claims under the ADEA, Executive shall not ever
attempt to challenge the terms of this Release, attempt to obtain an order declaring this Release
to be null and void, or institute litigation against the Company or any other Releasee based upon a
claim that is covered by the terms of the release contained herein, without first repaying all
monies paid to him/her under Section 8 of the Employment Agreement. Furthermore, with the
exception of an action to challenge his waiver of claims under the ADEA, if Executive does not
prevail in an action to challenge this Release, to obtain an order declaring this Release to be
null and void, or in any action against the Company or any other Releasee based upon a claim that
is covered by the release set forth herein, Executive shall pay to the Company and/or the
appropriate Releasee all their costs and attorneys’ fees incurred in their defense of Executive’s
action.
6. Governing Law and Severability. This Release and the rights and obligations of the
parties hereto shall be governed and construed in accordance with the laws of the State of Georgia.
If any provision hereof is unenforceable or is held to be unenforceable, such provision shall be
fully severable, and this document and its terms shall be construed and enforced as if such
unenforceable provision had never comprised a part hereof, the remaining provisions hereof shall
remain in full force and effect, and the court or tribunal construing the provisions shall add as a
part hereof a provision as similar in terms and effect to such unenforceable provision as may be
enforceable, in lieu of the unenforceable provision.
EXECUTIVE HAS CAREFULLY READ THIS RELEASE AND ACKNOWLEDGES THAT IT CONSTITUTES A GENERAL
RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS AGAINST THE COMPANY UNDER THE AGE DISCRIMINATION IN
EMPLOYMENT ACT. EXECUTIVE ACKNOWLEDGES THAT HE HAS HAD A FULL OPPORTUNITY TO CONSULT WITH AN
ATTORNEY OR OTHER ADVISOR OF HIS CHOOSING CONCERNING HIS EXECUTION OF THIS RELEASE AND THAT HE IS
SIGNING THIS RELEASE VOLUNTARILY AND WITH THE FULL INTENT OF RELEASING THE COMPANY FROM ALL SUCH
CLAIMS.
