EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of January 28,
2002 by and between Xxxxxxx X. XxXxxx, an individual ("Executive"), and
Aftermarket Technology Corp., a Delaware corporation (the "Company" or "ATC").
1. EMPLOYMENT BY THE COMPANY AND TERM.
(a) FULL TIME AND BEST EFFORTS. Subject to the terms set forth herein,
the Company agrees to employ Executive as the Chairman, President and Chief
Executive Officer of the Company and Executive hereby accepts such employment.
In addition, Executive shall serve as (i) President and Chief Executive Officer
of ACI Electronics Investment Corp. and (ii) Chief Executive Officer of each of
Aaron's Automotive Products, Inc., ACI Electronics Holding Corp., ATC
Information Services, Inc., ATS Remanufacturing, Inc., Autocraft Industries,
Inc., Autocraft Remanufacturing Corp., Component Remanufacturing Specialists,
Inc. and other subsidiaries expected to result from future acquisitions. During
the term of his employment with the Company, Executive shall devote his full
time, best efforts and attention to the performance of his duties hereunder and
to the business and affairs of the Company, and will not engage in any other
employment or business activities for any direct or indirect remuneration that
would be directly harmful or detrimental to, or that may compete with, the
business and affairs of the Company, or that would interfere with his duties
hereunder.
(b) DUTIES. Executive shall serve in an executive capacity and shall
perform such duties as are customarily associated with his then current title,
consistent with the Bylaws of the Company and as required by the Company's Board
of Directors (the "Board"). Executive agrees to devote his entire professional
time, energies and skills to his employment hereunder while so employed
(reasonable vacations and absences because of illness excepted).
(c) COMPANY POLICIES. The employment relationship between the parties
shall be governed by the general employment policies and practices of the
Company, including but not limited to those relating to protection of
confidential information and assignment of inventions, except that when the
terms of this Agreement differ from or are in conflict with the Company's
general employment policies or practices, this Agreement shall control.
(d) TERM. The initial term of employment of Executive under this
Agreement shall begin as of the date hereof and end on January 28, 2004, subject
to the provisions for termination set forth in Section 5 below and renewal as
provided in Section 1(e) below.
(e) RENEWAL. Unless the Company shall have given Executive notice that
this Agreement shall not be renewed at least 90 days prior to the end of the
initial term, the term of this Agreement shall be automatically extended for a
period of one year, such procedure to be followed in each such successive
period. Each extended term shall continue to be subject to the provisions for
termination set forth herein.
2. COMPENSATION AND BENEFITS.
(a) SALARY. Executive shall receive for services to be rendered
hereunder an annual base salary (the "Base Salary") initially equal to Five
Hundred Thousand and Fifty Dollars ($550,000) payable on a monthly basis,
subject to standard withholdings for taxes and social security and the like.
Executive's annual Base Salary will be reviewed annually by the Board and
adjusted when deemed appropriate by the Board to adequately reflect the scope
and success of the Company's operations.
(b) PARTICIPATION IN BENEFIT PLANS. During the term hereof, Executive
shall be entitled to participate in any group insurance, hospitalization,
medical, dental, health and accident, disability or similar plan or program of
the Company now existing or established hereafter to the extent that he is
eligible under the general provisions thereof. The Company may, in its sole
discretion and from time to time, establish additional senior management benefit
programs as it deems appropriate.
(c) VACATION. Executive shall be entitled to a period of annual
vacation time equal to that provided to senior managers by the Company's
policies and procedures regarding vacation, but in any event not less than four
weeks per year. The days selected for Executive's vacation must be mutually
agreeable to the Company and Executive.
(d) 401(K) PLAN. To the extent legally permitted and subject to all
eligibility requirements, Executive shall be entitled to place a portion of his
Base Salary into a 401(K) or other qualified deferred tax annuity plan of the
Company or, if the Company does not have such a plan, of any such plan of any of
the Company's subsidiaries, as may be designated by Executive.
(e) DISABILITY INSURANCE. To the extent that Executive's disability
insurance coverage in effect immediately prior to the date hereof may be
continued after the date hereof, the Company shall pay the premiums for such
insurance to the extent that the annual coverage provided thereby does not
exceed the Base Salary.
(f) AUTOMOBILE ALLOWANCE. Executive shall be entitled to a monthly
automobile allowance of One Thousand Two Hundred Dollars ($1,200.00).
(g) RELOCATION EXPENSES. Executive shall recover all benefits to which
he is entitled under the Company's relocation policy and will be entitled to the
following additional benefits (to the extent such benefits are not provided by
the Company's relocation policy): (i) reimbursement of actual travel and
temporary living expenses (grossed up to cover standard withholdings for tax and
social security purposes) to cover associated costs relating to temporary living
expenses in the Chicago, Illinois area; and (ii) the reimbursement of actual
costs incurred in transporting household goods to the Chicago, Illinois area and
expenses incidental to the purchase of a new residence in the Chicago, Illinois
area.
(h) EQUITY PLAN. Executive will be eligible to participate in the
Senior Management Equity Plan if and when established by the Company.
3. OPTION AND BONUS PLANS.
(a) PARTICIPATION. During the term hereof, Executive shall be entitled
to participate in any stock option plan and any bonus or incentive plan of the
Company currently made available by the Company to executive employees of the
Company or which may be made available in the future to executive employees of
the Company, subject to and on a basis consistent with the terms, conditions and
administration of any such plan; PROVIDED, HOWEVER, that Executive's annual cash
bonus will be as provided in Section 3(b) below. Executive understands that any
such plan may be modified or eliminated in the Company's discretion in
accordance with applicable law.
(b) ANNUAL CASH BONUS. For all annual periods, Executive shall receive
such cash bonus as the Board shall determine in its sole discretion based upon
the performance of the Company and its subsidiaries, PROVIDED that the annual
cash bonus target for Executive shall not exceed 75% of the Base Salary for such
year. Such bonuses may be paid at the end of the year in which such bonus is
earned.
4. REASONABLE BUSINESS EXPENSES AND SUPPORT. Executive shall be
reimbursed for documented and reasonable business expenses in connection with
the performance of his duties hereunder. Executive shall be furnished reasonable
office space, assistance and facilities.
5. TERMINATION OF EMPLOYMENT. The date on which Executive's employment by
the Company ceases, under any of the following circumstances, shall be defined
herein as the "Termination Date." All capitalized terms used in this Section 5
without definition will have the meanings set forth in Section 5(f).
(a) TERMINATION FOR CAUSE.
(i) TERMINATION; PAYMENT OF ACCRUED SALARY AND VACATION. The
Board may terminate Executive's employment with the Company at any time for
Cause (as defined below), immediately upon notice to Executive of the
circumstances leading to such termination for Cause. In the event that
Executive's employment is terminated for Cause, Executive shall receive (x)
payment for all accrued salary through the Termination Date, which in this event
shall be the date upon which notice of termination is given, and (y) the Earned
Benefits. The Company shall have no obligation to make any payment in lieu of
notice.
(ii) DEFINITION OF CAUSE. "CAUSE" means the occurrence or
existence of any of the following with respect to Executive, as determined by a
majority of the disinterested directors of the Board; (a) unsatisfactory
performance (other than unsatisfactory performance resulting from Executive's
incapacity due to physical or mental illness that would qualify Executive for
disability benefits under the Company's short-term or long-term disability
plans) of Executive's duties or responsibilities as determined by the Board,
PROVIDED that the Company has given Executive written notice specifying the
unsatisfactory performance of his duties and responsibilities, which remains
uncorrected by Executive after the lapse of 30 days following the receipt of the
written notice; (b) a material breach by Executive of any of his material
obligations hereunder which remains uncured after the lapse of 30 days following
the date that the Company
has given Executive written notice thereof; (c) a material breach by Executive
of his duty not to engage in any transaction that represents, directly or
indirectly, self-dealing with the Company or any of its Affiliates which has not
been approved by a majority of the disinterested directors of the Board or of
the terms of his employment, if in any such case such material breach remains
uncured after the lapse of 30 days following the date that the Company has given
Executive written notice thereof; (d) the repeated unsatisfactory performance or
material breach by Executive of any obligation or duty referred to in clause
(a), (b) or (c) above as to which at least one written notice has been given
pursuant to such clause (a), (b) or (c); (e) any act of willful dishonesty,
misappropriation, embezzlement, intentional fraud or similar conduct involving
the Company or any of its Affiliates; (f) the conviction or the plea of NOLO
CONTENDERE or the equivalent in respect of a felony involving moral turpitude;
(g) the repeated non-prescription use of any controlled substance or the
repeated use of alcohol or any other non-controlled substance which, in the
reasonable determination of the Board, in any case described in this clause (g),
renders Executive unfit to serve in his capacity as an officer or employee of
the Company or its Affiliates; or (h) gross negligence or willful misconduct in
the performance of his duties hereunder, which conduct is materially injurious
to the Company, or a willful and material breach of this Agreement.
(b) VOLUNTARY TERMINATION. Executive may voluntarily terminate his
employment with the Company at any time upon 90 days prior written notice.
Within ten days after the Termination Date, Executive shall receive payment for
all accrued salary through the Termination Date and the Earned Benefits.
(c) OTHER TERMINATION. Executive's employment shall be terminated if
(i) the Company terminates Executive's employment without Cause at any time upon
30 days' prior written notice, (ii) the Company terminates Executive's
employment due to his disability, (iii) the Company elects not to renew this
Agreement pursuant to Section 1(e), (y) Executive dies or (iv) Executive resigns
for Good Reason. If Executive's employment is terminated pursuant to this
Section 5(c), within ten days after the Termination Date Executive (or his
estate) shall receive payment for all accrued salary through the Termination
Date and the Earned Benefits. In addition
(x) Through the tenth anniversary of the Termination Date the
Company will offer continued medical-related insurance coverage to Executive at
the levels and at the rates applicable from time to time to comparable active
employees of the Company. Medical-related insurance coverage includes health,
dental and/or vision. Notwithstanding the above, coverage under the Company's
group medical plan shall cease on the date (A) Executive fails to pay the
required premium, if any, reasonably on time, (B) Executive becomes eligible for
comparable coverage under Medicare or the group health plan of any other
employer, or (C) the Company terminates its group medical plan as to all its
employees. If Executive dies prior to the tenth anniversary of the Termination
Date, the foregoing benefit will terminate but the Company will reimburse
Executive's surviving spouse for premium expenses incurred, at the rates
applicable from time to time charged to comparable active employees of the
Company, if Executive's spouse obtains COBRA continuation coverage for
applicable medical-related insurance. Executive's spouse will be entitled to
such reimbursement for 36 months or until the
tenth anniversary of the Termination Date, whichever is sooner. If the Company
terminates its group medical plan as to all its employees, the Company will
reimburse Executive for the costs of maintaining comparable coverage for the
required period.
(y) The Company shall pay Executive (or his estate if he dies
after the Termination Date) as severance an amount equal to (A) 200% of
Executive's annual base salary as in effect immediately prior to the Termination
Date plus (B) 200% of Executive's target bonus under the IC Plan for the
Termination Year, plus (C) the Prorated Bonus if the Termination Date occurs
other than within 18 months after a Change in Control or (D) the Pro Forma Bonus
if the Termination Date occurs within 18 months after a Change in Control.
(1) If the Termination Date occurs other than within 18 months
after a Change in Control, the severance called for by this Section 5(c)(y)
shall be paid in equal installments on each of the Company's regular
payroll dates during the 24-month period commencing on the first such
payroll date following the Termination Date and the Prorated Bonus will be
paid if and when the Company generally pays bonuses under the IC Plan to
its other employees with respect to the Termination Year.
(2) If the Termination Date occurs within 18 months after a
Change in Control, the severance called for by this Section 5(c)(y) shall
be paid within ten days after the Termination Date.
(z) The Company will pay up to $25,000 of the cost of an executive
level individualized career transition program through a professional
outplacement firm selected by the Company if such program is initiated within 30
days after the Termination Date.
As a condition to receiving the payments and benefits provided by this Section
5(c) (other than payment for all accrued salary through the Termination Date and
the Earned Benefits, which shall be payable in any case), Executive shall
execute and deliver to the Company on the Termination Date a general release in
the form attached hereto as Exhibit A.
(d) NO OTHER PAYMENTS OR BENEFITS. Except as otherwise expressly
provided in this Agreement, (i) after the Termination Date Executive will not be
entitled to any payments from the Company and (ii) on the Termination Date
Executive's participation in and coverage under the Company's benefit programs
(including the ATC Retirement Savings Plan (I.E., the 401(k) plan) and the
Company's group life and disability insurance plans) shall cease; PROVIDED that
Executive shall retain any right to convert to individual coverage as permitted
under these insurance plans and to any vested benefits under the 401(k) plan and
the Company's stock option plans.
(e) Withholding. Any amounts payable under this Section 5 shall be
subject to standard withholdings for taxes and social security and the like.
(f) DEFINITIONS.
(i) "CHANGE IN CONTROL" means the first to occur of the
following:
(A) any sale or transfer or other conveyance, whether
director or indirect, of all or substantially all of the assets of the
Company, on a consolidated basis, in one transaction or a series of related
transactions, unless, immediately after giving effect to such transaction,
at least 85% of the total voting power normally entitled to vote in the
election of directors, managers or trustees, as applicable, of the
transferee is "beneficially owned" by persons who, immediately prior to the
transaction, beneficially owned 100% of the total voting power normally
entitled to vote in the election of directors of the Company;
(B) any Person or Group other than an Excluded Person is or
becomes the "beneficial owner," directly or indirectly, of more than 35% of
the total voting power in the aggregate of all classes of capital stock of
the Company then outstanding normally entitled to vote in elections of
directors, unless the percentage so owned by an Excluded Person is greater;
(C) during any period of 12 consecutive months, individuals
who at the beginning of such 12-month period constituted the Company's
Board of Directors (together with any new directors whose election by such
Board or whose nomination for election by the shareholders of the Company
was approved by a vote of a majority of the directors then still in office
who were either directors at the beginning of such period or whose election
or nomination for election was previously so approved) cease for any reason
to constitute a majority of the Company's Board of Directors then in
office; or
(D) a reorganization, merger or consolidation of the Company
the consummation of which results in the outstanding securities of any
class of the Company's capital stock being exchanged for or converted into
cash, property and/or a different kind of securities, unless, immediately
after giving effect to such transaction, at least 85% of the total voting
power normally entitled to vote in the election of directors, managers or
trustees, as applicable, of the entity surviving or resulting from such
reorganization, merger or consolidation is "beneficially owned" by persons
who, immediately prior to the transaction, beneficially owned 100% of the
total voting power normally entitled to vote in the election of directors
of the Company.
(ii) "EARNED BENEFITS" means any (x) bonus that is payable to
Executive under the IC Plan with respect to the calendar year preceding the
Termination Year but that has not been paid prior to the Termination Date, (y)
vacation time that has accrued as of the Termination Date, and (z) other
entitlements to cash payments that have accrued as of the Termination Date.
(iii) "EXCLUDED PERSON" has the meaning set forth in that certain
Indenture dated as of August 2, 1994 by and among the Company, the Guarantors
named therein and American Bank National Association.
(iv) "GOOD REASON" means the occurrence of any of the following
events that remains uncured 15 days after Executive shall have given the Company
written notice
thereof: (x) a reduction (which is not consented to by Executive) in Executive's
base salary, (y) a material reduction in the aggregate level of Executive's
employee benefits (other than stock-based compensation), or (z) a material and
adverse change in Executive's duties or responsibilities.
(v) "IC PLAN" means the Company's annual incentive compensation
plan or similar plan instituted in place of the incentive compensation plan.
(vi) "PERSON" AND "GROUP" have the meanings used for purposes of
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended,
whether or not such sections apply to the transaction in question.
(vii) "PRO FORMA BONUS" means (A) the greater of (x) Executive's
bonus under the IC Plan for the Termination Year based on the Company's
projected performance for the Termination Year, such projection to be determined
by annualizing the performance for those months of the Termination Year that are
completed prior to the Termination Date, or (y) Executive's target bonus under
the IC Plan for the Termination Year multiplied by (B) a fraction (x) the
numerator of which is the number of days that have elapsed in the Termination
Year through the Termination Date and (y) the denominator of which is 365.
(viii) "PRORATED BONUS" means the bonus, if any, that would have
been payable to Executive under the IC Plan with respect to the Termination Year
multiplied by a fraction (A) the numerator of which is the number of days that
have elapsed in the Termination Year through the Termination Date and (B) the
denominator of which is 365.
(ix) "TERMINATION YEAR" means the calendar year in which the
Termination Date occurs.
(g) RELOCATION UPON TERMINATION OF EMPLOYMENT. Upon termination of
Executive's employment pursuant to Section 5 (c), Executive shall recover all
benefits to which he is entitled under the Company's relocation policy and will
be entitled to the following additional benefits (to the extent such benefits
are not provided by the Company's relocation policy): (i) reimbursement of
actual travel and temporary living expenses for a period not to exceed three
months (grossed up to cover standard withholdings for tax and social security
purposes) to cover associated costs relating to temporary living expenses in the
Williams, Oregon area; and (ii) the reimbursement of actual costs incurred in
transporting household goods to the Williams, Oregon area and expenses
incidental to the sale of Executive's residence in the Chicago, Illinois area.
(h) SECTIONS 280G AND 4999 OF THE INTERNAL REVENUE CODE. In the event
Executive is, as the result of the operation of this Agreement, the recipient of
an excess parachute payment, the Company will pay to Executive an additional
gross-up payment in order to put Executive in the same after-tax position that
Executive would have been in had no excise tax been imposed.
6. PROPRIETARY INFORMATION OBLIGATIONS. During the term of employment under
this Agreement, Executive will have access to and become acquainted with the
Company's confidential and proprietary information, including but not limited to
information or plans regarding the Company's customer relationships, personnel,
or sales, marketing, and financial operations and methods; trade secrets;
formulas; devices; secret inventions; processes; and other compilations of
information, records, and specifications (collectively "Proprietary
Information"). Executive shall not disclose any of the Company's Proprietary
Information directly or indirectly, or use it in any way, either during the term
of this Agreement or at any time thereafter, except as required in the course of
his employment for the Company or as authorized in writing by the Company. All
files, records, documents, computer-recorded information, drawings,
specifications, equipment and similar items relating to the business of the
Company, whether prepared by Executive or otherwise coming into his possession,
shall remain the exclusive property of the Company and shall not be removed from
the premises of the Company under any circumstances whatsoever without the prior
written consent of the Company, except when (and only for the period) necessary
to carry out Executive's duties hereunder, and if removed shall be immediately
returned to the Company upon any termination of his employment and no copies
thereof shall be kept by Executive; PROVIDED, HOWEVER, that Executive shall be
entitled to retain documents reasonably related to his interest as a shareholder
and any documents that were personally owned or acquired.
7. NONINTERFERENCE. Executive agrees that during his employment and, if
this Agreement is terminated pursuant to Section 5, for a period of 12 months
after the Termination Date, he will not, without the prior consent of the
Company, interfere with the business of the Company by directly or indirectly
soliciting, attempting to solicit, inducing, assisting or otherwise causing any
employee of the Company to terminate his or her employment in order to become an
employee, consultant or independent contractor to or for any other employer. The
foregoing will not apply with respect to any employee (a) who responds to a
general public solicitation or advertisement or (b) whose employment with the
Company is terminated by the Company.
8. NONCOMPETITION. Executive agrees that during his employment and, if this
Agreement is terminated pursuant to Section 5(a), 5(b) or 5(c), for a period of
24 months after the Termination Date, he will not, without the prior consent of
the Company, directly or indirectly, have an interest in, be employed by, be
connected with, or have an interest in, as an employee, consultant, officer,
director, partner, stockholder or joint venturer, in any person or entity
owning, managing, controlling, operating or otherwise participating or assisting
in any business which is similar to or in competition with the business of the
Company as it existed during the term of this Agreement in any state in which
the Company was conducting business on or before the Termination Date and
continues to do so thereafter; PROVIDED, HOWEVER, that the foregoing shall not
prevent Executive from being a stockholder of less than 1% of the issued and
outstanding securities of any class of a corporation listed on a national
securities exchange or designated as national market system securities on an
interdealer quotation system by the National Association of Securities Dealers,
Inc.
9. MISCELLANEOUS.
(a) NOTICES. Any notices provided hereunder must be in writing and
shall be deemed effective upon the earlier of personal delivery (including
personal delivery by telecopy or telex) or the third day after mailing by first
class mail to the recipient at the address indicated below:
To the Company:
Aftermarket Technology Corp.
0 Xxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxxxxx
Telecopier: (000) 000-0000
With a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
To Executive:
Xxxxxxx X. XxXxxx
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxx 00000
Telecopier: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxx
00 Xx. Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxx Xxxxxxxx, Esq.
Telecopier: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party will have specified by prior written notice to the sending
party.
(b) SEVERABILITY. If any term or provision (or any portion thereof)
of this Agreement is determined by a court to be invalid, illegal or incapable
of being enforced by any rule of law or public policy, all other terms and
provisions (or other portions thereof) of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or provision (or any
portion thereof) is invalid, illegal or incapable of being enforced, this
Agreement shall be deemed to be modified so as to effect the original intent of
the parties as closely as possible to the end that the transactions contemplated
hereby and the terms and provisions hereof are fulfilled to the greatest extent
possible.
(c) ENTIRE AGREEMENT. This document constitutes the final, complete,
and exclusive embodiment of the entire agreement and understanding between the
parties related to the subject matter hereof and supersedes and preempts any
prior or contemporaneous understandings, agreements, or representations by or
between the parties, written or oral.
(d) COUNTERPARTS. This Agreement may be executed on separate
counterparts, any one of which need not contain signatures of more than one
party, but all of which taken together will constitute one and the same
agreement.
(e) SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive and the Company, and
their respective successors and assigns, except that Executive may not assign
any of his duties hereunder and he may not assign any of his rights hereunder
without the prior written consent of the Company.
(f) AMENDMENTS. No amendments or other modifications to this Agreement
may be made except by a writing signed by both parties. No amendment or waiver
of this Agreement requires the consent of any individual, partnership,
corporation or other entity not a party to this Agreement. Nothing in this
Agreement, express or implied, is intended to confer upon any third person any
rights or remedies under or by reason of this Agreement.
(g) CHOICE OF LAW. All questions concerning the construction, validity
and interpretation of this Agreement will be governed by the internal law, and
not the law of conflicts, of the State of Delaware.
(h) INTERPRETATION. In interpreting this Agreement, all terms shall be
construed in accordance with their fair meaning and not strictly against any
party as the drafter hereof.
10. ARBITRATION.
(a) Any disputes or claims arising out of or concerning Executive's
employment or termination by the Company, whether arising under theories of
liability or damages based upon contract, tort or statute, shall be determined
exclusively by arbitration before a single arbitrator in accordance with the
employment arbitration rules of the American Arbitration Association ("AAA"),
except as modified by this Agreement. The arbitrator's decision shall be final
and binding on both parties. Judgment upon the award rendered by the arbitrator
may be entered in any court of competent jurisdiction. In recognition of the
fact that resolution of any disputes or claims in the courts is rarely timely or
cost effective for either party, the Company and Executive enter this mutual
agreement to arbitrate in order to gain the benefits of a speedy, impartial and
cost-effective dispute resolution procedure.
(b) Any arbitration shall be held in Executive's place of employment
with the Company. The arbitrator shall be an attorney with substantial
experience in employment matters, selected by the parties alternately striking
names from a list of five such persons provided by the AAA office located
nearest to the place of employment, following a request by the party seeking
arbitration for a list of five such attorneys with substantial professional
experience in employment matters. If either party fails to strike names from the
list, the arbitrator shall be selected from the list by the other party.
(c) Each party shall have the right to take the deposition of one
individual and any expert witness designated by the other party. Each party
shall also have the right to propound requests for production of documents to
any party and the right to subpoena documents and witnesses for the arbitration.
Additional discovery may be made only where the arbitrator selected so orders
upon a showing of substantial need. The arbitrator shall have the authority to
entertain a motion to dismiss and/or a motion for summary judgment by any party
and shall apply the standards governing such motions under the Federal Rules of
Civil Procedure. The arbitrator will have authority in his or her discretion to
grant injunctive relief, award specific performance and impose sanctions upon
any party to any such arbitration.
(d) The Company and Executive agree that they will attempt, and they
intend that they and the arbitrator should use their best efforts in that
attempt, to conclude the arbitration proceeding and have a final decision from
the arbitrator within 120 days from the date of selection of the arbitrator;
PROVIDED, HOWEVER, that the arbitrator shall be entitled to extend such 120-day
period for a total of two 120-day periods. The arbitrator shall immediately
deliver a written award with respect to the dispute to each of the parties, who
shall promptly act in accordance therewith.
(e) The Company and Executive shall each pay half of the fees and
expenses of the arbitrator. Each party shall pay its own attorney fees and costs
including, without limitation, fees and costs of any experts. However, attorney
fees and costs incurred by the party that prevails in any such arbitration
commenced pursuant to this Section 10 or any judicial action or proceeding
seeking to enforce the agreement to arbitrate disputes as set forth in this
Section 10 or seeking to enforce any order or award of any arbitration commenced
pursuant to this Section 10 may be assessed against the party or parties that do
not prevail in such arbitration in such manner as the arbitrator or the court in
such judicial action, as the case may be, may determine to be appropriate under
the circumstances. If any party prevails on a statutory claim that entitles the
prevailing party to a reasonable attorney fees (with or without expert fees) as
part of the costs, the arbitrator may award reasonable attorney fees (with or
without expert fees) to the prevailing party in accord with such statute. Any
controversy over whether a dispute is an arbitrable dispute or as to the
interpretation or enforceability of this paragraph with respect to such
arbitration shall be determined by the arbitrator.
(f) In a contractual claim under this Agreement, the arbitrator shall
have no authority to add, delete or modify any term of this Agreement.
IN WITNESS WHEREOF, the parties have executed this agreement effective as
of the date it is last executed below by either party.
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
XXXXXXX X. XXXXXX
AFTERMARKET TECHNOLOGY CORP.
By: /s/ Xxxxxx Xxxxxxxxxxxx
------------------------------------
Xxxxxx Xxxxxxxxxxxx, Vice President
