Exhibit 10.45
This
Severance, Release and Noncompetition Agreement (“Agreement”) is entered into as
of March 4, 2005 by and among Advance Auto Parts, Inc. (“AAP”), Advance Stores
Company, Incorporated (“ASCI”) (“AAP” and “ASCI” are jointly
and severally hereinafter referred to as “Advance”) and Xxxxxx X. Xxxxxxx
(“Employee”).
WHEREAS,
Advance and Employee have determined that their mutual interests are best served if
Employee terminates his employment with Advance, and have further agreed that Employee
will resign from his employment with Advance effective as of March 31, 2005 (the
“Effective Date”);
WHEREAS,
Advance has agreed to provide to Employee the benefits and payments provided for in this
Agreement, which are in addition to the benefits and payments which Advance is otherwise
obligated to provide to Employee in connection with the termination of Employee’s
employment with Advance (which additional benefits and payments include, but are not
limited to, salary continuation for nine (9) months and bonus eligibility continuation for
the remainder of fiscal 2004) in return for the additional covenants, agreements and
obligations of Employee provided for in this Agreement; and
WHEREAS,
Employee is willing to accept the additional benefits and payments to him provided for in
this Agreement and to comply with the terms and conditions of this Agreement, and the
terms and conditions of all other agreements between Advance and Employee (as modified
herein) which survive the termination of Employee’s employment with Advance.
NOW,
THEREFORE, in consideration of the foregoing premises, the mutual promises of the parties
set forth herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
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1. |
Recitals. The parties hereto agree that the foregoing recitals in this
Agreement are true and accurate. |
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2. |
Discharge of Severance Obligations. Advance shall pay to Employee and
Employee accepts from Advance the following: |
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2.01. |
A lump sum payment, less all applicable withholding taxes and payroll
deductions, which shall be paid to Employee within two weeks after the Effective
Date, and which shall represent payment for the amount of his hours of accrued
but unused vacation time to |
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which Employee would have been entitled as of the
Effective Date had he not terminated his employment with Advance. |
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2.02. |
(a) A lump sum bonus payment attributable to the fourth fiscal quarter of 2004
of that amount which Employee would have been entitled to (if any) had Employee
remained an Employee through the time required to receive such bonus payment.
Such bonus payment shall be made at the time the fourth quarter bonus payment is
made to other executives and shall include any annual roll-up amounts that would
have been earned. Employee shall not be entitled to any bonus payments
attributable to the 2005 fiscal year. |
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(b) When the item described in section 2.02(a) above is paid to Employee, such
payment shall constitute payment in full of Advance’s obligations under the
2004 Bonus Plan for Employee, a copy of which is attached hereto as Exhibit A
(“2004 Bonus Plan”) and Employee shall be entitled to no further bonus
payments. |
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2.03. |
The sum of $157,676.91, the equivalent of nine (9) months of Employee’s
applicable salary as of the date of his termination of employment with Advance,
which shall be paid in equal installments (on the normal management pay cycle)
during the nine (9) month period commencing on April 1, 2005, less all
applicable withholding taxes and payroll deductions. |
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2.04. |
All payments to Employee under the provisions of Sections 2.01 and 2.03 will not
be eligible for deferral or matching contributions under any pension or benefit
plan. |
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2.05. |
Outplacement services for 12 months shall be provided to Employee under the
Executive Program by Xxx Xxxxx Xxxxxxxx to include consulting, search support
and administrative services. |
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3. |
Medical Insurance Coverage. Advance will provide continued group health
insurance coverage to Employee under the same terms and conditions as provided
to other executives of the Company until March 31, 2005. Advance will provide
continued group health insurance coverage pursuant to federal law under the
regulations governing COBRA continuation coverage, and under the terms of the
applicable group health plan(s) or successor plan(s). The date of the qualifying
event is March 31, 2005, for COBRA continuation coverage purposes. From the
period April 1, 2005 through December 31, 2005, the Company shall pay that
amount of COBRA cost on behalf of Employee so that Employee shall only be |
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required to pay that amount he would have had to pay had he still been employed
during that time period. |
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4. |
Release and Waiver. Employee for himself, his heirs, executors,
administrators and assigns, hereby knowingly, voluntarily and unconditionally
releases, waives, and forever discharges Advance and Advance’s subsidiaries
(including but not limited to Western Auto Supply Company), parents, affiliates,
and their joint and several employees, officers, directors, shareholders,
investors, benefit plans, trustees, and their successors and assigns
(hereinafter jointly and severally referred to for purposes of this Agreement as
“Releasees”), from any and all obligations, claims, demands,
liabilities, judgments, causes of action, suits at law or in equity, in tort,
contract, by statute or on any other basis, for pay and/or benefits, for
compensatory, punitive or other damages, attorney fees, expenses,
reimbursements, or costs of any kind, including, but not limited to, any and all
claims, demands, rights and/or causes of action under Title VII of the Civil
Rights Act of 1964, as amended, the Civil Rights Act of 1991, the Fair Labor
Standards Act, the Family and Medical Leave Act, the Age Discrimination in
Employment Act, the Americans with Disabilities Act, the Rehabilitation Act of
1973, the Workers Adjustment Retraining and Notification Act, the Employee
Retirement Income Security Act or any other federal, state, or local statute or
ordinance or any other claims, whether statutory or based on common law,
arising: (a) by reason of his employment with Advance or the cessation of that
employment or circumstances related thereto; or (b) by reason of any other
matter, cause, or thing done, omitted or suffered to be done prior to and
including the date on which Employee signs below. The parties agree and
understand that this is not to be construed as an admission of liability by the
Releasees or any other person or entity released hereby, by whom any liability
is expressly denied. The Releasees expressly deny violation of any of their
policies, procedures or agreements, or of any federal, state or local laws or
regulations. Employee further acknowledges that he may subsequently discover
facts which were in existence at the time this Agreement and general release is
signed in addition to or different from those which he now knows or believes to
exist with respect to the subject matter of this Agreement and which, if known
or suspected at the time of executing this Agreement, may have materially
affected this Agreement and settlement. Nevertheless, Employee hereby waives any
right, claim or cause of action that might arise as a result of such different
or additional facts provided such facts were in existence at the time this
Agreement and general release is signed. |
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5. |
Derogatory or Defamatory Statements. Employee agrees that he will not, by
any means or in any media, make or provide any comment, information,
communication, expression, statement or depiction detrimental, injurious or
derogatory to the interests of Advance (including its directors, officers,
employees, investors, shareholders, affiliates or related entities)
(collectively referred to in this Section as the “Company”), and
further agrees that he will not disparage, denigrate, or cast the Company in an
unfavorable light in any manner. Employee also agrees that he will not encourage
or facilitate any other person to make any derogatory or disparaging comments on
his behalf, or attributable to him, or based in any way upon information he
supplied, about the Company or consent to or approve any such action by another
person. Specifically, Employee recognizes that by virtue of his position with
Advance or his knowledge of the Company or other information he possesses
(including, but not limited to Confidential Information as defined in the
Employment Agreement), he may be subjected to inquiries or otherwise approached
by the media (general or trade), potential or actual investors, business persons
(including, but not limited to, industry competitors) or other persons, and
asked for his opinions or comments regarding matters relating to the Company,
which may include, but is not limited to, information regarding the business
plans, strategies, personnel, officers, directors, and/or present or former
employees of the Company, and potential or actual investors. While this
Agreement is not intended to unduly restrict Employee’s ability to respond
to any such inquiries, both the Company and Employee desire to avoid any issues
or situations in which Employee’s opinions, comments or statements could be
misunderstood or mischaracterized to the detriment of the Company, or would
violate in any way this Section of the Agreement. In order to avoid any such
potential problems, Employee agrees to be vigilant of and extremely sensitive to
such matters at all times, and will, in accordance with the spirit and intent of
this Agreement (and this Section 6) respond to any such inquiry or approach with
a response that complies with the intent, spirit and general purpose underlying
this Section 6, or Employee will not respond at all to the inquiry or approach.
If Employee has any questions in the future regarding the scope or intent of
this Section 6 and its applicability to a particular circumstance, Employee
agrees to contact the Chief Executive Officer; the Senior Vice President, Human
Resources; or the General Counsel of ASCI and discuss the matter with the
Advance officer so contacted before responding to any inquiry or approach.
Nothing herein shall prevent Employee from correcting any false, misleading or
deceptive statements made about Employee. |
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6. |
Cooperation. Employee acknowledges that by virtue of his position with
Advance, he has knowledge of a substantial number of business matters involving
Advance. Employee agrees to cooperate fully with Advance and/or its
representatives and agents as to any matters upon which Employee has knowledge
or on which he had any involvement prior to the termination of his employment.
Without limiting the scope of the above sentence, Employee agrees to make
himself reasonably available to assist Advance and its representatives and
agents with any business and/or litigation (or potential litigation) matters
affecting or involving Advance. Employee acknowledges that this obligation may
require travel and appearance at meetings and/or other functions and Employee
may only be provided with short notice for such cooperative efforts. Employee
shall be reimbursed for all reasonable costs of travel. |
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7. |
Non-Recruitment. Employee agrees that through December 31, 2005, Employee
shall not, directly or indirectly, cause any person engaged or employed by
Advance or its Affiliates (whether part-time or full-time and whether as an
officer, employee, consultant, agent, adviser or independent contractor) (a
“team member”) to voluntarily leave the employ of or engagement with
Advance or its Affiliates, as the case may be, or to cease providing the
services to or on behalf of Advance or its Affiliates, as the case may be, then
provided by such team member. Employee further agrees that, during the same time
period, he will not in any manner seek to engage or employ any such team member
(whether or not for compensation) as an officer, employee, consultant, agent,
adviser or independent contractor for any Person other than Advance. |
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8. |
Reasonableness of Terms and Covenants. Employee acknowledges that Advance
would not have agreed to enter into this Agreement with Employee unless he
agreed to comply with the terms contained herein including, but not limited to,
numbered Sections 4 through 7 above. Accordingly, Employee further agrees that
the terms and covenants set forth in numbered Sections 4 through 7 above are
reasonable and necessary to protect the legitimate business and other interests
of Advance. |
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9. |
Reliance. In accepting the terms of this Agreement, Employee understands
and agrees that is he relying wholly on his own judgment, belief, and knowledge
and/or that of his own attorneys and advisors regarding this Agreement and the
matters and occurrences in question. Employee has not been influenced to any
extent whatsoever in entering this Agreement by representations or statements
made by any person, firm or entity hereby released, or by persons representing
or acting for them or on their behalf employed. Employee’s decision to sign
this Agreement and general release |
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is entirely voluntary and with full
understanding of its consequences and without being coerced or threatened with
retaliation of any sort. He and his attorneys and advisors have been given ample
opportunity to ask questions, consider, read, review and analyze this Agreement
and general release and Employee acknowledges that he fully understands its
terms and conditions. |
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10. |
Company Obligations. Advance agrees that it will not by any means or in any
media, make or provide any comment, information, communication, expression,
statement or depiction detrimental, injurious or derogatory to the interests of
Employee and further agrees that it will not disparage, denigrate or cast
Employee in an unfavorable light in any manner. Advance represents that it has
no intention to bring any action against Employee and will not bring any such
action against Employee for anything currently known by Advance and relating to
Employee’s employment with Advance. |
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11. |
Confidential. The parties will treat this Agreement as strictly
confidential, and will accordingly not disclose the terms and conditions hereof
to any third party except in the course of any judicial proceedings relating to
the enforcement of this Agreement, pursuant to a court order, or as otherwise
required by law. |
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12. |
Entire Agreement. This Agreement (and the attached Exhibits) constitutes
the entire agreement between the parties and the terms herein are considered by
said parties to be contractual in nature and not a mere recital. No change or
modification of this Agreement will be valid unless it is in writing and signed
by the parties hereto. If any term of this Agreement conflicts with any of the
terms of the Employment Agreement, or any other contract or agreement between
Employee and Advance, the terms of this Agreement will control. This Agreement
and the other documents it references and modifies, constitute and contains the
full, complete and entire agreement and understanding concerning Employee’s
employment, all compensation of any nature due Employee and the other subject
matters addressed herein between the parties, and supersedes and replaces all
prior negotiations and all agreements proposed or otherwise, whether written or
oral, concerning the subject matters contained or referenced herein. |
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13. |
Specific Performance. Employee acknowledges that it would be impossible
to determine the amount of damages that would result from any breach of any of
the provisions of this Agreement by Employee and that the remedy at law for any
breach, or threatened breach, of any of the |
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provisions of this Agreement would
likely be inadequate and, accordingly, agrees that Advance shall, in addition to
any other rights or remedies which they may have, be entitled to seek such
equitable and injunctive relief as may be available from any court of competent
jurisdiction to restrain Employee from violating any of the provisions of this
Agreement. In connection with any action or proceeding for injunctive relief,
Employee hereby waives the claim or defense that a remedy at law alone is
adequate and agrees, to the maximum extent permitted by law, to have each
provision of this Agreement specifically enforced against him, without the
necessity of posting bond or other security against him, and consents to the
entry of injunctive relief enjoining or restraining any breach or threatened
breach of this Agreement. |
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14. |
Return of Corporate Property. Employee hereby agrees that he will
immediately turn over to Advance all files, documents, notes or other records
(of any form or nature, including but not limited to tape, disk or other
electronic storage method) in his possession or control (or the possession or
control of his attorneys) pertaining to the operation, business, personnel
and/or affairs of Advance and that he, and his attorneys and agents, will not
retain copies of any such files, notes, documents or records and further that he
will not disclose the contents of any such files, notes, documents or records to
any other person, entity, agency, association, business, organization, firm or
corporation. Employee shall be permitted to retain his lap top computer after
all company information has been deleted by Advance technical personnel.
Employee further covenants and agrees that he will not at any time disclose to
any other person, entity, agency, association, business, organization, firm or
corporation any information regarding the operations, business and affairs of
Advance other than information which is customarily made available to the
general public, without the prior written consent of Advance or except as may be
required by law or legal process after prior notice to Advance and a reasonable
opportunity under the circumstances for Advance to evaluate the necessity of
such proposed disclosure and to seek to oppose or limit it. |
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15. |
Notices. Any and all notices, designations, consents, offers,
acceptances, or any other communications provided for herein shall be given in
writing and shall be deemed given on the date received if sent by registered or
certified mail, return receipt requested; or on the date actually received if
sent by express mail or other similar overnight delivery or if hand delivered or
if sent via facsimile, which shall be addressed: |
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0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Fax: (000) 000-0000 |
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cc: General Counsel
Telephone: (000) 000-0000
Fax: (000) 000-0000 |
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Xxxxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000 |
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16. |
Governing Law. This Agreement shall be subject to and governed by the
laws of the Commonwealth of Virginia. |
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17. |
Severability. The invalidity or unenforceability of any covenant or any
other provision of this Agreement shall not affect the other provisions hereof.
The parties to this Agreement agree that if a court should find that a covenant
or provision of this Agreement is invalid or unenforceable that the court is
empowered to modify or redraft the invalid or unenforceable provision to one
which is valid and enforceable and comes closest to fulfilling the intent of the
parties as expressed in the original provision. In the event that the court can
not redraft or modify the provision, then this Agreement shall be construed in
all respects as if such invalid or unenforceable provision were omitted. |
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18. |
Successors and Assigns Binding Effect. This Agreement shall be binding
upon and inure to the benefit of Advance and Employee and their respective
heirs, legal representatives, executors, administrators, successors and assigns,
provided that Employee may not assign his rights or delegate his obligations
hereunder. |
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19. |
No Waiver. The failure by Advance to enforce any of its rights hereunder
shall not be deemed to be a waiver of such rights, unless such waiver is in
writing and signed by the waiving party. Waiver of any one breach shall not be
deemed to be a waiver of any other breach of the same or any other provision
hereof. |
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20. |
No Construction Against Any Party. Legal counsel for each of the
respective parties (Employee and Advance) reviewed this Agreement. This
Agreement is the product of informed negotiations among Employee and Advance and
if any part of this Agreement is deemed to be unclear or ambiguous, it shall be
construed as if it were drafted jointly by all parties. Moreover, Employee and
Advance each acknowledge that no party was in a superior bargaining position
regarding the substantive terms of this Agreement. |
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21. |
Effective Date. This Agreement shall become effective the first business
day after the expiration of the required seven (7) day revocation period as
provided in Section 23. |
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22. |
No Other Compensation. The parties agree that Employee will not receive,
nor be entitled to receive, any other compensation, pay, bonuses or any other
benefits from Advance or to participate in any employee pension benefit plans,
employee welfare benefit plans, insurance programs, or any other compensatory or
benefit program provided by Advance, except as expressly provided for herein and
except for Employee’s vested rights in Advance’s existing 401(K) Plan,
the nonqualified deferred compensation program and the Stock Option Program. |
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23. |
Certain Rights. Employee understands that he has twenty-one (21) days to
consider this Agreement. Employee has also been informed that he should consider
this Agreement carefully, and should consult with his attorney prior to
executing this Agreement, and that this Agreement contains a general release.
Employee acknowledges that he has retained an attorney to represent and advise
him with respect to this Agreement. |
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Employee
has twenty-one (21) days from the date he received this Agreement to consider this
Agreement and general release. If Employee does not sign this Agreement and general
release and return it to Advance within twenty-one (21) days of receipt, it will be null
and void. Employee also understands that he may sign and return this Agreement prior to
the expiration of the twenty-one (21) day period. |
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After
Employee has read and understands the contents of this Agreement, Employee agrees to
acknowledge his acceptance by signing in the space indicated below in the presence of a
notary public, and to return the Agreement by hand delivery or by registered or overnight
mail to General Counsel, Advance Stores Company, Inc., 0000 Xxxxxxx Xxxx, Xxxxxxx,
Xxxxxxxx 00000. |
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Employee
further understands that he has seven (7) days after he signs this Agreement in which he
may revoke it with a notice to Advance in writing. This Agreement will not become
effective until after this revocation period has passed. |
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By his notarized signature below,
Employee acknowledges that he has read this Agreement, understands the terms of the
Agreement and its legal and binding effect, and is voluntarily executing this Agreement.
| COMMONWEALTH OF VIRGINIA |
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| CITY/COUNTY OF ____________ |
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The foregoing instrument was acknowledged before me by
______________________, this _____ day of ____________, 2005.
My commission expires:
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ADVANCE STORES COMPANY,
INCORPORATED |
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By: __________________________ |
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Name: _______________________ |
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Title: ________________________ |
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By: __________________________ |
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Name: _______________________ |
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Title: ________________________ |
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