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EXHIBIT 10.30
EXECUTIVE SEVERANCE AGREEMENT, dated as of November 1, 1999
(the "Agreement"), between Xxxxxxx Tire Group, Inc., a
Delaware corporation (the "Employer"), and Xxx X. Xxxxxx (the
"Employee").
The Speed Merchant, Inc., a California corporation d/b/a the
Speed Merchant and Competition Parts Warehouse and a subsidiary of the Employer
(the "Speed Merchant"), and the Employee desire to have this Agreement supersede
any prior or existing agreements or understandings between them including,
without limitation, the Amended and Restated Employment Agreement dated May 20,
1998 between the Speed Merchant and Employee; the Executive Severance Agreement
dated September 16, 1999 between the Employer and Employee; the Stock Option
Agreement between Employer and Employee dated September 16, 1999; and the
Securities Purchase and Stockholders Agreement between Employer and Employee
dated September 16, 1999, provided , however, this Agreement does not supersede
the Settlement Agreement and Release dated September 16, 1999 between Employer
and Employee
In consideration of (i) the Employee's agreement to supply
services under this Agreement and (ii) the mutual agreements set forth below,
the sufficiency of which is hereby acknowledged, the Employer and the Employee
agree as follows:
SECTION 1. Employment Relationship.
(a) Employment by Employer. The Employer hereby employs the
Employee, and the Employee hereby agrees to be employed by the Employer, as
President of the CPW Division of the Employer, and the Employee will devote all
of his business time, attention, knowledge and skills and use his best efforts
during the Employment Period to perform services and duties consistent with his
title and position (the "Services") for the Employer in accordance with
directions given to the Employee from time to time by the Board of Directors of
the Employer.
(b) Employment Period. The period commencing on the date of
this Agreement and ending on the date on which this Agreement is terminated is
referred to herein as the "Employment Period." During the Employment Period, the
Employee will be an at-will employee of the Employer. The Employment Period
shall be freely terminable for any reason by either party at any time.
SECTION 2. Compensation and Benefits. During the Employment
Period:
(a) Base Compensation. The Employer shall pay to the Employee
a base salary of $230,000 per annum (the "Base Salary"), payable in accordance
with the Employer's payroll practices. The Base Salary shall be increased (but
not decreased) subject to additional discretionary increases (but not decreases)
as determined periodically by the Board of Directors.
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(b) Additional Compensation. As additional compensation for
the Services, the Employer shall pay to the Employee an amount equal to (A) with
respect to calendar year 1999 , the amount owed to Employee under that certain
bonus plan in effect for CPW which is 1.5% of net income for CPW payable within
45 days after the end of each fiscal quarter for the period, (B) with respect to
the period from January 1, 2000 through December 31, 2001, the greater of (x) an
annual fixed bonus payment (the "Fixed Bonus") equal to 30% of the Employee's
Base Salary for such year, and (y) an annual bonus payment at the "Minimum",
"Plan" or "Maximum" percentage payment levels, as the case may be, in accordance
with the terms and conditions of the Employer's then existing Executive Bonus
Plan or such other annual incentive compensation as the Board of Directors of
the Employer determines in its sole discretion to pay the Employee and (C) with
respect to calendar year 2002 and thereafter, an annual bonus payment at the
"Minimum", "Plan" or "Maximum" percentage payment levels, as the case may be, in
accordance with the terms and conditions of the Employer's then existing
Executive Bonus Plan or such other annual incentive compensation as the Board of
Directors of the Employer determines in its sole discretion to pay the Employee,
payable in all cases on or around March 1 of the following year. The Employee
will be entitled to participate in any Executive Bonus Plan as a Level 1
Employee. The Employee acknowledges that the Employer may terminate or modify
its Executive Bonus Plan and other incentive plans (excluding the Fixed Bonus
payable hereunder) at any time, although no termination or amendment affecting
the Employee will be made effective unless it is consistently applied to other
employees participating in such plans. In the event of any conflict or
inconsistency between the terms of the any Executive Bonus Plan and the terms of
Section 2(b) or 3 of this Agreement, the terms of Sections 2(b) and 3 of this
Agreement shall control.
(c) Stock Options. The Employee has been granted options to
acquire shares of Class A Common Stock of the Employer, pursuant to the Stock
Option Agreement, dated as of the date hereof, between the Employer and the
Employee (the "1999 Stock Option Agreement"). The stock options granted to the
Employee under the 1999 Stock Option Agreement are granted pursuant to the
Employer's 1999 Stock Option Plan and are subject to vesting in accordance with
the terms of the 1999 Stock Option Agreement Except as otherwise provided in the
1999 Stock Option Agreement and in this Agreement with respect to payments under
the Executive Bonus Plan and except as hereafter mutually agreed by the Employer
and the Employee, in the event of a Change in Control (as defined below), to the
extent not fully vested at such time, the Employee shall become fully vested in
all awards heretofore or hereafter granted to him under all incentive
compensation, deferred compensation, stock option, stock appreciation rights,
restricted stock, phantom stock or other similar plans maintained by the
Employer.
(d) Benefit Plans. During the Employment Period, the Employee
shall be entitled to receive benefits from the Employer consistent with those
currently in effect for the Employer's senior executives (including deferred
compensation plans, and company automobile and financial planning perquisites),
as those benefits are revised from time to time by the Board of Directors of the
Employer. Nothing contained herein is intended to require the Employer to
maintain any existing benefits or create any new benefits. The Employee will be
entitled to participate in the Employer's deferred compensation program at the
level of $5500 contribution per year and to receive benefits thereunder in
accordance with the terms and conditions of such program. If the Employment
Period is terminated by the Employer or the Employee as set forth
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in Section 3(e)(ii) below, the Employee and relevant family members shall be
entitled to continue to participate in the Employer's welfare benefit plans at
the Employer's expense for a period of 18 months after the termination date. If
the Employment Period is terminated by the Employer or the Employee as set forth
in Section 3(e)(iii) below, the Employee and relevant family members shall be
entitled to continue to participate in the Employer's welfare benefit plans at
the Employer's expense for a period of three years after the termination date.
For purposes of this Section 2(d), the Employees' relevant family members shall
be those members of the Employee's immediate family covered by the applicable
welfare benefit plan immediately prior to the termination date.
(e) Vacation and Holidays. The Employee shall be entitled to a
minimum of four weeks' vacation each year and paid holidays in accordance with
the Employer's policy.
(f) No Mitigation. The Employee shall not be required to
mitigate the amount of any payments under this Agreement (whether by seeking new
employment or in any other manner), nor shall any such payment be reduced by any
earnings that the Employee may receive from any other source.
SECTION 3. Termination.
(a) Death or Disability. If the Employee dies during the
Employment Period, the Employment Period shall terminate as of the date of the
Employee's death. If the Employee becomes unable to perform the Services for 90
consecutive days due to a physical or mental disability, (i) the Employer may
elect to terminate the Employment Period at any time thereafter, and (ii) the
Employment Period shall terminate as of the date of such election. All
disabilities shall be certified by a physician acceptable to both the Employer
and the Employee, or, if the Employer and the Employee cannot agree upon a
physician within 15 days, by a physician selected by physicians designated by
each of the Employer and the Employee. The Employee's failure to submit to any
physical examination by such physician after such physician has given reasonable
notice of the time and place of such examination shall be conclusive evidence of
the Employee's inability to perform his duties hereunder.
(b) Cause. The Employer, at its option, may terminate the
Employment Period and all of the obligations of the Employer under this
Agreement for Cause. The Employer shall have "Cause" to terminate the Employee's
employment hereunder after May 20, 2001in the event of (i) the Employee's
conviction of or plea of guilty or nolo contendere to a felony, (ii) the
Employee's gross negligence in the performance of the Services, which is not
corrected within 15 business days after written notice, (iii) the Employee's
knowingly dishonest act, or knowing bad faith or willful misconduct in the
performance of the Services, which is not corrected within 15 business days
after written notice, or (iv) the Employee's material breach of any of his
obligations under Section 5, which is not corrected within a reasonable period
of time (determined in light of the cure, if any, appropriate to such material
breach, but in no event less than 15 business days) after written notice. If the
Employee is charged with a felony, then during the period while such charge or
related indictment remains outstanding and until finally determined, the
Employer shall have the right to suspend the Employee without compensation. The
employer shall have "Cause" to terminate the Employee's employment hereunder on
or before May 20. 2001, in the event of (i) a proven or admitted act of fraud,
misappropriation or embezzlement by the Executive that is
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detrimental to the Employer or (ii) the Employee's conviction of or plea of
guilty or nolo contendere to a felony. If the Employee is charged with a felony,
then during the period while such charge or related indictment remains
outstanding and until finally determined, the Employer shall have the right to
suspend the Employee without compensation.
(c) Without Cause. The Employer, at its option, may terminate
the Employment Period without Cause at any time.
(d) Termination by Employee for Good Reason. The Employee may
terminate this Agreement upon 60 days' prior written notice to the Employer for
Good Reason (as defined below) if the basis for such Good Reason is not cured
within a reasonable period of time (determined in light of the cure appropriate
to the basis of such Good Reason, but in no event less than 15 business days)
after the Employer receives written notice specifying the basis of such Good
Reason. "Good Reason" shall mean (i) the failure of the Employer to pay any
undisputed amount due under this Agreement or a reduction in Base Salary, Fixed
Bonus or benefits provided under this Agreement (other than immaterial
reductions in benefits or a reduction in benefits or salary applicable to all of
the Employer's bonus eligible employees) or a termination of, or reduction in
the percentage level of, the "plan" or "target" bonus opportunity applicable to
Employee from the "Plan" percentage level applicable to a Level 1 Employee under
the 1999 Executive Bonus Plan in effect on the date hereof (the "Effective Date
Plan Percentage"), (ii) a substantial diminution in the status, position and
responsibilities of the Employee or (iii) the Employer requiring the Employee to
be based at any office or location that requires a relocation or commute greater
than 50 miles from the office or location to which the Employee is currently
assigned, provided, however, that Good Reason shall not be deemed to exist due
to the travel requirements consistent with the performance of the Employee's
services hereunder.
(e) Payments in the Event of Termination. (i) Basic
Termination Payment. Upon the termination of the Employment Period at any time
for any reason, the Employer shall pay to the Employee or his estate the Base
Salary earned to the date of termination, and if such termination occurs after
December 31st of any year for which a bonus is payable pursuant to Section 2(b)
but before such bonus has been paid, the Employer shall pay to the Employee or
his estate the bonus due for the preceding year. Upon the termination of the
Employment Period after May 31, 2000 and during calendar year 2000, or during
calendar year 2001 for any reason other than the reasons set forth in Section
3(e)(ii) or 3(e)(iii) below, the Employer shall pay to the Employee within five
business days after such termination, a lump-sum amount equal to the Fixed Bonus
earned to the date of termination. Any Fixed Bonus payable under this Section
3(e)(i) shall be prorated if payable for periods of less than one year and shall
be payable regardless of whether the Employee is still in the employ of the
Employer on the date such bonuses are otherwise declared or payable.
(ii) Additional Involuntary Termination Payment. Upon
the termination of the Employment Period at any time by the Employer without
Cause or by the Employee for Good Reason, the Employer shall pay to the Employee
within five business days of such termination a lump-sum amount (in addition to
the amount payable under the first sentence of Section 3(e)(i)) equal to (x) the
sum of the Employee's annual Base Salary at the annual rate in effect on the
date of termination and the Severance Bonus Amount, multiplied by (y) 1.5.
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Notwithstanding the foregoing, the Employee shall be entitled to no payment
under this Section 3(e)(ii) if he is entitled to receive a payment under Section
3(e)(iii). "Severance Bonus Amount" means an amount equal to the Employee's Base
Salary at the annual rate in effect on the date of termination multiplied by a
percentage, which is the greater of (1) the Effective Date Plan Percentage and
(2) the "plan" or "target" bonus percentage then applicable under any executive
bonus plan or other incentive compensation program and (3) the "fixed" bonus, if
still in effect for purposes of determining the Employee's annual bonus for the
year of termination.
(iii) Additional Change in Control Payment. Upon the
termination of the Employment Period (x) by the Employer without Cause upon or
prior to a Change in Control, provided that the Employee reasonably demonstrates
that such termination occurred at the request of a third party participating in,
or otherwise in anticipation of or in connection with, such Change in Control,
or (y) by the Employee with Good Reason or by the Employer for any reason other
than for Cause within one year after a Change in Control, then the Employer
shall pay to the Employee within five business days of such termination a
lump-sum amount (in addition to the amount payable under the first sentence of
Section 3(e)(i)) equal to the sum of (A) the higher of (1) the Employee's annual
Base Salary at the date of such termination or (2) the Employee's annual Base
Salary at the time of the Change in Control, in each case multiplied by three,
and (B) the Severance Bonus Amount multiplied by three. If the Employment Period
is terminated by the Employee for any reason other than with Good Reason on or
after the first anniversary of a Change in Control but no later than the 30th
day after such first anniversary, the Employee shall be entitled to the greater
of (x) 50% of the payments specified in this Section 3(e)(iii), or (y) the
payments of Base Salary and bonus under the CPW bonus plan that Employee would
have received if he had remained employed through May 31, 2001. If the
Employment Period is terminated by the Employee with Good Reason at any time on
or after the first anniversary of a Change in Control, the Employee shall be
entitled to the payment specified in Section 3(e)(ii).
(iv) Change in Control Defined. "Change in Control"
means the first to occur of any of the following: (A) the sale (including by
merger, consolidation or sale of stock of subsidiaries or any other method) of
all or substantially all of the assets of the Employer and its consolidated
subsidiaries (taken as a whole) to any person or entity not directly or
indirectly controlled by the holders of at least 50% of the Combined Voting
Power of the then outstanding shares of capital stock of the Employer (excluding
shares owned by employees of the Employer as of the date of determination) (B)
at any time prior to the consummation of an initial public offering of Class A
Common Stock of the Employer or other common stock of the Employer having the
voting power to elect directors, a transaction (except pursuant to such initial
public offering) resulting in the Principal Shareholders owning, collectively,
less than 50% of the Combined Voting Power of the then outstanding shares of
capital stock of the Employer (excluding shares owned by employees of the
Employer as of the date of determination), (C) at any time after the
consummation of an initial public offering of Class A Common Stock of the
Employer or other common stock of the Employer having the voting power to elect
directors, the acquisition (except pursuant to such initial public offering) by
any person or entity (other than the Principal Shareholders) not directly or
indirectly controlled by the Employer's stockholders of more than 30% of the
Combined Voting Power of the then outstanding shares of capital stock of the
Employer (excluding shares owned by employees of the Employer as of the date of
determination), (D) individuals serving as directors of the Employer on the date
hereof and who
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were nominated or selected to serve as directors by one or more Principal
Shareholders (together with any new directors whose election was approved by a
vote of (x) such individuals or directors whose election was previously so
approved or (y) Principal Shareholders holding a majority of the aggregate
voting power of the capital stock of the Employer held by all Principal
Shareholders) cease for any reason to constitute a majority of the Board of
Directors of the Employer, (E) the adoption of a plan relating to the
liquidation or dissolution of the Employer in connection with an equity
investment or sale or a business combination transaction or (F) any other event
or transaction that the Board of Directors of the Employer deems to be a Change
in Control. "Combined Voting Power" with respect to capital stock of the
Employer means the number of votes such stock is normally entitled (without
regard to the occurrence of any contingency) to vote in an election of directors
of the Employer. "Principal Shareholders" means (i) Charlesbank Equity Fund IV,
Limited Partnership and the investors in such fund, (ii) Charlesbank Equity Fund
IV G.P. Limited Partnership, (iii) Charlesbank Capital Partners, LLC (and any
other fund managed by Charlesbank Capital Partners, LLC), (iv) any investor
(other than The 1818 Mezzanine Fund, L.P.) whose investment in the Employer is
approved by the representative of management on the board of the Employer, (v)
any new investors in the Company designated as Principal Shareholders by
Charlesbank Capital Partners, LLC within one year of the initial investment by
Charlesbank Equity Fund IV, Limited Partnership, and (vi) any corporation,
partnership, limited liability company or other entity a majority of the capital
stock or other ownership interests of which are directly or indirectly owned by
any of the foregoing.
(v) Other Provisions Applicable to Payments. Any
amounts due under this Section 3 and not paid when due shall bear interest
(compounded annually) for the period from and including the date payable to but
excluding the date paid at a rate per annum equal to the sum of (x) four percent
and (y) the rate publicly announced by BankBoston, N.A. as its "prime rate."
(f) Termination of Obligations. In the event of termination of
the Employment Period in accordance with this Section 3, all obligations of the
Employer and the Employee under this Agreement shall terminate, except for any
amounts payable by the Employer as specifically set forth in Section 3(e);
provided, however, that notwithstanding anything to the contrary contained in
this Agreement, the provisions of Section 5 shall survive such termination in
accordance with their respective terms and the relevant provisions of Section 6
shall survive such termination indefinitely. In the event of termination of the
Employment Period in accordance with this Section 3, the Employee agrees to
cooperate with the Employer in order to ensure an orderly transfer of the
Employee's duties and responsibilities.
SECTION 4. Parachute Excise Tax Gross-Up
(a) If, as a result of any payment or benefit provided under
this Agreement or under any other plan, arrangement or other agreement with the
Employer or any entity affiliated with the Employer, either alone or together
with such other payments and benefits which the Employee receives or is then
entitled to received from the Employer, the Employee becomes subject to the
excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as
amended (the "Code"), (together with any interest and penalties thereon an
"Excise Tax"), the Employer shall pay the Employee an amount (the "Gross-Up
Payment") sufficient to place the
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Employee in the same after-tax financial position that he would have been in if
he had not incurred any tax liability under Section 4999 of the Code. For
purposes of determining whether the Employee is subject to an Excise Tax and the
amount of any Gross-Up Payment, (i) any payments or benefits received by the
Employee (whether pursuant to the terms hereof or pursuant to any plan,
arrangement or other agreement with the Employer or any entity affiliated with
the Employer) which payments ("Contingent Payments") are deemed to be contingent
on a change described in Section 280G(b)(2)(A)(i) of the Code shall be taken
into account and (ii) the Employee shall be deemed to pay federal, state and
local taxes at the highest marginal applicable rates of such taxes for the
calendar year in which the Gross-Up Payment is to be made, net of the maximum
deduction from federal income taxes which could be obtained from deduction of
any state and local taxes deemed paid by the Employee.
(b) The determination of whether the Employee is subject to
Excise Tax and the amounts of such Excise Tax and Gross-Up Payment, as well as
other calculations hereunder, shall be made at the expense of the Employer by
Xxxxxx Xxxxxxxx, which shall provide the Employee with prompt written notice
(the "Employer Notice") setting forth their determinations and calculations.
Within 30 days following the receipt by the Employee of the Employer Notice, the
Employee may notify the Employer in writing (the "Employee Notice") if the
Employee disagrees with such determinations or calculations, setting forth the
reasons for any such disagreement. If the Employer and the Employee do not
resolve such disagreement within 10 business days following receipt by the
Employer of the Employee Notice, such dispute will be resolved in accordance
with Section 6(f). The Employer shall pay all reasonable expense incurred by
either party in connection with the determinations, calculations, disagreements
or resolutions pursuant to this paragraph, including, but not limited to,
reasonable legal, consulting or other similar fees.
(c) The Employee shall notify the Employer in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Employer of a Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than 10 business days after the Employee is
informed in writing of such claim and shall apprise the Employer of the nature
of such claim and the date of which such claim is requested to be paid. The
Employee shall not pay such claim prior to the expiration of the 30 day period
following the date on which the Employee gives such notice to the Employer (or
such shorter period ending on the date that any payment of taxes with respect to
such claim is due). If the Employer notifies the Employee in writing prior to
the expiration of such period that it desires to contest such claim, the
Employee shall:
(i) give the Employer any information reasonably
requested by the Employer relating to such claim;
(ii) take such action in connection with contesting
such claim as the Employer 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 Employer and reasonably
satisfactory to the Employee;
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(iii) cooperate with the Employer in good faith in
order to effectively contest such claim; and
(iv) permit the Employer to participate in any
proceedings relating to such claim;
provided, however, that the Employer shall bear and pay
directly all costs and expenses (including, but not limited to, additional
interest and penalties and related legal, consulting or other similar fees)
incurred in connection with such contest and shall indemnify and hold the
Employee harmless, on an after-tax basis, for any Excise Tax or other tax
(including interest and penalties with respect thereto) imposed as a result of
such representation and payment of costs and expenses.
(d) The Employer 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 the Employee to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and the Employee 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 Employer shall
determine; provided, however, that if the Employer directs the Employee to pay
such claim and xxx for a refund, the Employer shall advance the amount of such
payment to the Employee on an interest-free basis, and shall indemnify and hold
the Employee harmless, on an after-tax basis, from any Excise Tax or other 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 provided, further, that if the Employee is required to extend the statute of
limitations to enable the Employer to contest such claim, the Employee may limit
this extension solely to such contested amount. The Employer's control of the
contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Employee 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. In addition, no position may be taken nor
any final resolution be agreed to by the Employer without the Employee's consent
if such position or resolution could reasonably be expected to adversely affect
the Employee (including any other tax position of the Employee unrelated to the
matters covered hereby).
(e) As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination by the
Employer hereunder, it is possible that Gross-Up Payments which will not have
been made by the Employer should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event that the
Employer exhausts its remedies and the Employee thereafter is required to pay to
the Internal Revenue Service an additional amount in respect of any Excise Tax,
the Employer (in the same fashion as set forth in Section 4(b) shall determine
the amount of the Underpayment that has occurred and any such Underpayment shall
promptly be paid by the Employer to or for the benefit of the Employee.
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(f) If, after the receipt by Employee of an amount advanced by
the Employer in connection with the contest of an Excise Tax claim, the Employee
becomes entitled to receive any refund with respect to such claim, the Employee
shall promptly pay to the Employer the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after the
receipt by the Employee of an amount advanced by the Employer in connection with
an Excise Tax claim, a determination is made that Employee shall not be entitled
to any refund with respect to such claim and the Employer does not notify the
Employee in writing of its intent to contest the denial of such refund prior to
the expiration of 30 days after receiving notice of such determination, such
advance shall be forgiven and shall not be required to be repaid and the amount
of such advance shall be offset, to the extent thereof, by the amount of the
Gross-Up Payment.
SECTION 5. Confidential Information; Non-Competition.
(a) Stock Purchase Agreement. The Employee acknowledges and
agrees that pursuant to Section 3.6 of that certain Stock Purchase Agreement
(herein "Stock Purchase Agreement"), dated March 11, 1998, among Employee and
others, Employee agreed to certain Confidentiality and Non-Competition
provisions which are hereby ratified and affirmed by Employee and Employer, and
nothing in this Agreement shall affect the validity of such provisions.
(b) Incorporation by Reference. Without in any way limiting
the terms and conditions of the Stock Purchase Agreement referred to in
subsection (a) above, the Employer and the Employee hereby agree that the terms
and conditions of Section 6 of the Existing Employment Agreement shall be
incorporated by reference herein in their entirety, except that references to
the "Company" in such Section (other than Section 6(f)) shall be deemed to be
references to the Employer hereunder.
SECTION 6. General Provisions.
(a) Enforceability. It is the desire and intent of the parties
hereto that the provisions of this Agreement shall be enforced to the fullest
extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, although the Employee
and the Employer consider the restrictions contained in this Agreement to be
reasonable for the purpose of preserving the Employer's goodwill and proprietary
rights, if any particular provision of this Agreement shall be adjudicated to be
invalid or unenforceable, such provision shall be deemed amended to delete
therefrom the portion thus adjudicated to be invalid or unenforceable, such
deletion to apply only with respect to the operation of such provision in the
particular jurisdiction in which such adjudication is made. It is expressly
understood and agreed that although the Employer and the Employee consider the
restrictions contained in Section 5 to be reasonable, if a final determination
is made by a court of competent jurisdiction that the time or territory or any
other restriction contained in this Agreement is unenforceable against the
Employee, the provisions of this Agreement shall be deemed amended to apply as
to such maximum time and territory and to such maximum extent as such court may
judicially determine or indicate to be enforceable.
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(b) Remedies. The parties acknowledge that the Employer's
damages at law would be an inadequate remedy for the breach by the Employee of
any provision of Section 5, and agree in the event of such breach that the
Employer may obtain temporary and permanent injunctive relief restraining the
Employee from such breach, and, to the extent permissible under the applicable
statutes and rules of procedure, a temporary injunction may be granted
immediately upon the commencement of any such suit. Nothing contained herein
shall be construed as prohibiting the Employer from pursuing any other remedies
available at law or equity for such breach or threatened breach of Section 5 or
for any breach or threatened breach of any other provision of this Agreement.
(c) Withholding. The Employer shall withhold such amounts from
any compensation or other benefits payable to the Employee under this Agreement
on account of payroll and other taxes as may be required by applicable law or
regulation of any governmental authority.
(d) Employer's Successors. The Employer shall require any
successor or successors (whether direct or indirect and whether by purchase,
lease, merger, consolidation, liquidation or otherwise) to all or substantially
all of the Employer's business and/or assets, by an agreement in substance and
form satisfactory to the Employee, to assume this Agreement and to agree
expressly to perform this Agreement in the same manner and to the same extent as
the Employer would be required to perform it in the absence of a succession. The
Employer's failure to obtain such agreement prior to the effectiveness of a
succession shall be a breach of this Agreement and shall entitle the Employee to
all of the compensation and benefits to which he would have been entitled
hereunder if the Employer had involuntarily terminated his employment without
Cause immediately after such succession become effective. For all purposes under
this Agreement, the term "Employer" shall include any successor or successors to
the Employer's business and/or assets which executes and delivers the assumption
agreement described in the subsection or which becomes bound by this Agreement
by operation of law.
(e) Employee's Successors. This Agreement and all rights of
the Employee hereunder shall inure to the benefit of, and be enforceable by, the
Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributee, devisees and legatees.
(f) Indemnity. The Employer hereby agrees to indemnify and
hold the Employee harmless consistent with the Employer's policy against any and
all liabilities, expenses (including attorneys' fees and costs), claims,
judgments, fines, and amounts paid in settlement actually and reasonably
incurred in connection with any proceeding arising out of the Employee's
employment with the Employer (whether civil, criminal, administrative or
investigative, other than proceedings by or in the right of the Employer), if
with respect to the actions at issue in the proceeding the Employee acted in
good faith and in a manner Employee reasonably believed to be in, or not opposed
to, the best interests of the Employer, and (with respect to any criminal
action) Employee had no reason to believe Employee's conduct was unlawful. Said
indemnification arrangement shall (i) survive the termination of this Agreement,
(ii) apply to any and all qualifying acts of the Employee which have taken place
during any period in which he was employed by the Employer, irrespective of the
date of this Agreement or the term hereof, including, but not limited to, any
and all qualifying acts as an officer and/or director of any affiliate while the
Employee is
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employed by the Employer and (iii) be subject to any limitations imposed from
time to time under applicable law.
(g) Dispute Resolution; Attorney's Fees. The Employer and the
Employee agree that any dispute arising as to the parties' rights and
obligations hereunder shall be resolved by binding arbitration before an
arbitrator to be determined by mutually agreeable means. In such event, each of
the Employer and the Employee shall have the right to full discovery. The
Employer shall bear all costs of the arbitrator in any such proceeding, and if
the arbitration is definitively decided in the Employee's favor, the Employee
shall have the right, in addition to any other relief granted by such
arbitrator, to recover reasonable attorneys' fees; provided, however, that the
Employer shall have the right, in any dispute other than a dispute relating to
the occurrence of a Change in Control or the payment of an amount under Section
3(e)(iii), in addition to any other relief granted by such arbitrator, to
recover reasonable attorneys' fees in the event that a claim brought by the
Employee is definitively decided in the Employer's favor (with the amount of
such fees being limited to those expended defending the claim or claims decided
in favor of the Employer). Any judgment by such arbitrator may be entered into
any court with jurisdiction over the dispute.
(h) Acknowledgment. The Employee acknowledges that he has been
advised by the Employer to seek the advice of independent counsel prior to
reaching agreement with the Employer on any of the terms of this Agreement. The
parties agree that no rule of construction shall apply to this Agreement which
construes ambiguous language in favor of or against any party by reason of that
party's role in drafting the Agreement.
(i) Amendments and Waivers. No modification, amendment or
waiver, of any provision of, or consent required by, this Agreement, nor any
consent to any departure herefrom, shall be effective unless it is in writing
and signed by the parties hereto. Such modification, amendment, waiver or
consent shall be effective only in the specific instance and for the purpose for
which given.
(i) Notices. All notices or other communications which are
required or permitted hereunder shall be in writing and sufficient if delivered
personally or sent by registered or certified mail, postage prepaid, return
receipt requested, sent by overnight courier, or sent by facsimile (with
confirmation of receipt), addressed as follows:
If to the Employer:
Xxxxxxx Tire Group, Inc.
0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: President
Facsimile: (000) 000-0000
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with a copy to:
Xxxxxxxxx & Xxxxxxx
1330 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
and:
Charlesbank Capital Partners, LLC
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxx and Xxxx X. Xxxxx
Facsimile: (000) 000-0000
with a copy to:
Skadden, Arps, Slate Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
If to the Employee:
Xxx X. Xxxxxx
000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
or at such other address as the party to whom notice
is to be given may have furnished to the other party in writing in accordance
herewith. If such notice or communication is mailed, such communication shall be
deemed to have been given on the fifth business day following the date on which
such communication is posted.
(j) Descriptive Headings; Certain Interpretations. Descriptive
headings are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement. Except as otherwise expressly
provided in this Agreement: (i) any reference in this Agreement to any
agreement, document or instrument includes all permitted supplements and
amendments; (ii) a reference to a law includes any amendment or modification to
such law and any rules or regulations issued thereunder; (iii) the words
"include," "included" and "including" are not limiting; and (iv) a reference to
a person or entity includes its permitted successors and assigns.
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(k) Counterparts; Entire Agreement. This Agreement may be
executed in any number of counterparts, and each such counterpart hereof shall
be deemed to be an original instrument, but all such counterparts together shall
constitute one agreement. This Agreement and the 1999 Stock Option Agreement
contain the entire agreement among the parties with respect to the transactions
contemplated by this Agreement and the 1999 Stock Option Agreement and supersede
all other or prior written or oral agreements or understandings among the
parties with respect to the Employee's employment by the Employer. Speed
Merchant, the Employer and the Employee hereby agree that the Existing
Employment Agreement is expressly terminated and superseded in its entirety by
this Agreement (excluding Section 6 thereof which is incorporated herein by
reference as set forth in Section 5 hereof).
(L) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OFCALIFORNIA.
(M) CONSENT TO JURISDICTION. EACH OF THE PARTIES TO THIS
AGREEMENT AGREES TO BE BOUND BY THE PROVISIONS SET FORTH IN EXHIBIT A TO THIS
AGREEMENT. EACH OF EMPLOYEE AND EMPLOYER HEREBY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT IN SAN
XXXX OR THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SANTA XXXXX FOR
THE PURPOSES OF ALL LEGAL PROCEEDINGS WHICH ARSIE OUR OF OR RELATE TO THIS
AGREMENT, AND EACH OF EMPLOYEE AND EMPLOYER AGREES NOT TO COMMENCE AND LEGAL
PROVEEDING RELATED THERETO EXCEPT IN SUCH COURT. EACH OF EMPLOYEE AND EMPLOYER
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, AND OBJECTION WHICH
IT MAY NOW OF HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY SUCH COURT HAS XXXX
BROUGHT IN AN INCONVENIENT FORUM.
(Signature page follows)
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first written above.
XXXXXXX TIRE GROUP, INC.
By: /s/ Xxxxxx X. Roof
-------------------------------------
Xxxxxx X. Roof
President and Chief Executive Officer
/s/ Xxx X. Xxxxxx
-----------------------------------------
Xxx X. Xxxxxx
For purposes of Section 6(k) only:
THE SPEED MERCHANT, INC.
By: /s/ Xxxxxx X. Roof
--------------------------------------
Name: Xxxxxx X. Roof
Title: Chairman
