1
EXHIBIT 10.24
CHANGE OF CONTROL
EMPLOYMENT AGREEMENT
THIS AGREEMENT is between DISCOUNT AUTO PARTS, INC., a Florida
Corporation (the "Company"), and Xxxxxxxx X. Xxxxxx , residing at ______,
_____, __ __ (the "Executive") and is dated as of the 31st day of January 2001.
WITNESSETH:
WHEREAS, the Executive is a principal officer of the Company and an
integral part of its management; and
WHEREAS, the Company recognizes that even the possibility of a change
of control and the uncertainty and questions which it may raise may result in
the departure or distraction of management personnel to the detriment of the
Company and its shareholders during a critical time; and
WHEREAS, the Company considers it in the best interest of the Company
and its shareholders that the Executive be encouraged to remain with the Company
in the event of any actual or threatened change of control of the Company; and
WHEREAS, the Company's Board of Directors (the "Board") has determined
that appropriate steps should be taken now to reinforce and encourage members of
the Company's management;
NOW, THEREFORE, in consideration of the above premises and mutual
agreements herein set forth and the services performed and to be performed by
the Executive for the Company, the parties agree as follows:
1. Operation of Agreement.
This Agreement shall constitute a valid and binding contract
between the parties immediately upon its execution. Nevertheless, the Executive
and the Company shall have no obligations hereunder until, and this Agreement
shall be effective without any action by any party only upon the first date on
which a Change of Control (as defined in Section 2) has occurred; provided,
however, that at the option of the Company this Agreement may be terminated on
the first anniversary of written notice of termination given to the Executive by
the Board prior to the Agreement's Effective Date (as defined in Section 2).
2. Definitions. APPLICABLE FACTOR. For purposes of this
Agreement, "Applicable Factor" shall equal:
(a) the Applicable Number of Months, but if termination
of the Executive's employment occurs more than 12 months after the occurrence of
a Change of Control, then such number of months will be reduced (but not below
zero) by the number of whole months from the first anniversary of the Change of
Control through the date of the termination of the Executive's employment;
divided by
(b) 12.
2
APPLICABLE NUMBER OF MONTHS. For purposes of this Agreement,
"Applicable Number of Months" shall be as determined in accordance with
Section 3.
CAUSE. For purposes of this Agreement, "Cause" shall mean
termination resulting from (i) acts of dishonesty by the Executive constituting
a felony and resulting or intended to result directly or indirectly in gain or
personal enrichment to the Executive at the expense of the Company, (ii) a final
determination by a court or other trier of fact (without any further rights to
appeal) to the effect that the Executive engaged in employment discrimination,
sexual harassment and/or similar employment relationship activities in violation
of any applicable law and resulting in material damage to or liability of the
Company (an "Employment Law Violation") or (iii) willful and continued failure
by Executive to substantially perform his duties with the Company (other than
any such failure resulting from Disability (as defined herein)) after a demand
in writing for substantial performance is delivered to the Executive by the
Board, which demand specifically identifies the manner in which the Board
believes that the Executive has not substantially performed his duties, and such
failure to perform the Executive's duties results in demonstrably material
injury to the Company.
CHANGE OF CONTROL. For the purpose of this Agreement, a
"Change of Control" shall occur if (i) the Company shall not be the surviving
entity in any merger or consolidation (or survives only as a subsidiary of an
entity other than a previously wholly-owned subsidiary of the Company), (ii) the
Company sells, leases or exchanges or agrees to sell, lease or exchange all or
substantially all of its assets to any other person or entity (other than a
wholly-owned subsidiary of the Company), (iii) the Company is to be dissolved
and liquidated, (iv) any person or entity, including a "group" as contemplated
by Section 13(d)(3) of the 1934 Act, (other than Xxxxx Xxxxxxxx, Xxxxxxxx
Industries Limited Partnership, Xxxxxxxx Enterprises Limited Partnership or any
of their respective affiliates and other than (A) any employee plan established
by the Company, (B) the Company, (C) an underwriter temporarily holding
securities pursuant to an offering of such securities or (D) a corporation
owned, directly or indirectly, by stockholders of the Company in substantially
the same proportions as their ownership of the Company) acquires or gains
beneficial ownership or control (including, without limitation, power to vote)
of more than 25% of the combined voting power of the Company's then outstanding
voting securities, or (v) as a result of or in connection with any cash tender
or exchange offer, merger or other business combination, sales of assets or a
contested election for the board of directors, or any combination of the
foregoing transactions (a "Transaction"), the persons who were directors of the
Company before such Transaction shall cease to constitute a majority of the
Board.
EFFECTIVE DATE. For purposes of this Agreement, "Effective
Date" shall mean the first date on which a Change of Control has occurred.
DISABILITY. For purposes of this Agreement, "Disability" shall
mean that the Executive is unable to perform the essential functions of the job
for which the Executive is being employed hereunder, with or without reasonable
accommodation, by reason of his illness, accident or other cause, including
mental disability, for a period of six consecutive calendar months, or an
aggregate of nine months during any continuous twelve-month period.
GOOD REASON. For purposes of this Agreement, "Good Reason"
shall mean:
(i) A determination by the Executive made in
good faith that his primary management functions, duties or responsibilities
have been diminished in any material respect and the situation is not remedied
within 30 days after receipt by the Company of written notice from the Executive
of such determination;
3
(ii) Any requirement that the Executive relocate
his principal office outside of Polk County, Florida;
(iii) Any modification to the rights to
indemnification or director and officer liability insurance under which the
Executive is covered immediately prior to the Effective Date which substantially
reduces the benefits available to the Executive under such indemnification or
insurance; or
(iv) A breach by the Company of any provision of
this Agreement not embraced within the foregoing clause (i), (ii) or (iii) which
is not remedied within 30 days after receipt by the Company of written notice
from the Executive.
3. Employment Period.
a. Unless terminated pursuant to Section 6, the Company
hereby agrees to continue the Executive in its employ for the period commencing
on the Effective Date and ending on the date which is a number of months
following such date equal to the sum of (i) 12 months and (ii) the Applicable
Number of Months (the "Employment Period"). Unless terminated pursuant to
Section 6, the Executive agrees to remain in the employ of the Company until
such time as the Executive gives the Company at least 30 days written notice of
the Executive's intent to voluntarily terminate employment.
b. For purposes of this Agreement, the Applicable Number
of Months will be determined as of the Effective Date and shall be equal to the
sum of the Executive's Tenure Credit as of the Effective Date and the
Executive's Position Credit as of the Effective Date.
The Tenure Credit shall be computed in accordance with the
following table:
IF THE EXECUTIVE'S YEARS OF SERVICE THEN, THE TENURE CREDIT
TO THE COMPANY IS: SHALL BE:
----------------------------------------------------------------------------
Less than 6 years None
At least 6 years and less than 11 years 3 months
At least 11 years and less than 16 years 6 months
At least 16 years 12 months
The Position Credit shall be computed in accordance with the following table:
IF THE EXECUTIVE'S POSITION THEN, THE POSITION CREDIT
WITH THE COMPANY IS: SHALL BE:
---------------------------------------------------------------------------
Division Manager 6 months
or Department Director
Vice President 12 months
Senior or Executive Vice President 18 months
4
4. Position and Duties.
a. During the Employment Period, the Executive shall
continue to serve as a principal officer of the Company with office, title and
primary management functions, duties, and responsibilities substantially similar
to those held and performed during the 90-day period immediately preceding the
Effective Date provided that any change in such functions, duties and
responsibilities which results solely from the Company no longer being a
reporting company under the Federal securities laws or the Company being a
subsidiary of another company shall not be considered a change in functions,
duties or responsibilities for any purpose under this Agreement.
b. During the Employment Period, the Executive shall
devote the Executive's full time and efforts during normal business hours to the
business and affairs of the Company except for reasonable vacations and except
for illness or incapacity, but nothing in this Agreement shall preclude the
Executive from (i) devoting reasonable periods required for serving as a
director or member of a committee of any organization involving no conflict of
interest with the interests of the Company, (ii) engaging in charitable and
community activities and professional organizations and (iii) managing personal
investments, so long as such activities do not materially interfere with the
regular performance of his duties and responsibilities under this Agreement.
c. Executive shall have as his principal office and
shall perform his duties hereunder primarily at the Company's headquarters at
0000 Xxxxxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000 or at such other location as
the Board shall direct within Polk County, Florida.
5. Compensation.
a. Base Salary. During the Employment Period, the
Executive shall receive a base salary ("Base Salary") equal to the average of
the Executive's monthly salary during the three full months immediately
preceding the Effective Date multiplied by twelve. The Base Salary shall not be
reduced after the Effective Date. The Base Salary will be paid in equal
semi-monthly installments.
b. Other Non-Salary Benefits. During the Employment
Period, the Executive shall be entitled to participate in all bonus, incentive,
savings and retirement plans, policies and programs applicable generally to
other peer executives of the Company and its affiliated companies, but in no
event shall such plans, policies and programs provide the Executive with
incentive opportunities, savings opportunities and retirement benefit
opportunities, in each case, less favorable, in the aggregate, than those
provided by the Company and its affiliated companies for the Executive under
such plans, policies and programs as in effect at any time during the 90-day
period immediately preceding the Effective Date or, if more favorable to the
Executive, those provided generally at any time after the Effective Date to
other peer executives of the Company and its affiliated companies. During the
Employment Period, the Executive and/or the Executive's family, as the case may
be, shall be eligible for participation in and shall receive all benefits under
welfare benefit plans, policies and programs provided by the Company and its
affiliated companies (including to the extent they exist and without limitation,
medical, prescription, dental, disability, salary continuance, employee life,
group life, accidental death and travel accident insurance plans and programs)
to the extent applicable generally to other peer executives of the Company and
its affiliated companies, but in no event shall such plans, policies and
programs provide the Executive with benefits which are less favorable, in the
aggregate, than such plans, practices, policies and programs in effect for the
Executive at any time during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive, those provided generally
at any time after the Effective Date to other peer executives of the Company and
its affiliated
5
companies. During the Employment Period, the Executive shall be entitled to
perquisites, including, without limitation, an office, secretarial and clerical
staff, and to fringe benefits, including, without limitation, the payment of
allowances for, and reimbursement of, automobile expenses, and cellular
telephone charges, in each case at least equal to those attached to his office
immediately prior to the Effective Date.
c. Vacation. The Executive shall be entitled to receive
such paid vacation time each year during the term of this Agreement as is
consistent with the then current vacation policy or practice of the Company for
Executive's position. Such vacation shall be taken at a time convenient to the
Company. Any vacation time to which the Executive is entitled in accordance with
the foregoing that is not taken by the Executive in any year during the
Employment Period shall not be cumulative, and the Executive shall not receive
any cash or noncash benefit in lieu of vacation time not taken by the Executive
except that Executive shall be entitled to receive cash in lieu of any unused
vacation time applicable for the year in which any termination of employment
occurs.
d. Expenses. Upon submission of proper vouchers, the
Company will pay or reimburse the Executive for reasonable transportation,
hotel, travel and related expenses incurred by the Executive on business trips
away from the Executive's principal office, and for other business and
entertainment expenses reasonably incurred by the Executive in connection with
the business of the Company and its subsidiaries during the Employment Period,
all subject to such limitations as may from time to time be prescribed by the
Board.
e. Indemnity. The Executive shall be entitled to and
shall be provided the benefits of indemnification and director and officer
liability insurance on the same basis as in effect immediately preceding the
Effective Date, or if more favorable to the Executive, as in effect at any time
thereafter with respect to other officers of similar position and
responsibility. Indemnification under this Section shall be in addition to any
other indemnification rights of the Executive whether by separate contract,
under the Company's articles of incorporation or bylaws, or otherwise.
6. Termination.
a. Death or Disability. Executive's employment shall
terminate automatically upon the Executive's death. The Company may terminate
Executive's employment upon Executive's Disability, effective as of the
applicable date of his Disability, by giving to the Executive written notice of
termination of the Executive's employment.
b. Cause. The Company may terminate the Executive's
employment for "Cause" upon written notice as required herein. Executive's
employment shall in no event be considered to have been terminated by the
Company for Cause if such termination was not as a result of an Employment Law
Violation but took place as the result of (i) bad judgment or negligence, or
(ii) any act or omission without intent of gaining therefrom directly or
indirectly a profit to which the Executive was not legally entitled, or (iii)
any act or omission believed by the Executive in good faith to have been in or
not opposed to the interest of the Company, or (iv) any act or omission in
respect of which a determination is made that the Executive met the applicable
standard of conduct prescribed for indemnification or reimbursement or payment
of expenses under the by-laws of the Company or the laws of the State of Florida
or the directors and officers liability insurance of the Company, in each case
as in effect at the time of such act or omission. The Executive shall not be
deemed to have been terminated for Cause unless and until there shall have been
delivered to him a copy of a resolution duly adopted by the affirmative vote of
not less than a majority of the entire membership of the Board at a meeting of
the Board called and held for the purpose (after reasonable notice to the
Executive and an opportunity for the Executive, together with his counsel, to be
heard before the
6
Board), finding that in the good faith opinion of the Board, the Executive was
guilty of conduct contained in the definition of Cause and specifying the
particulars thereof in detail.
c. Good Reason. The Executive's employment may be
terminated by the Executive at any time for Good Reason. Executive's employment
shall in no event be considered to have been terminated by Executive for Good
Reason if such termination by the Executive took place as a result of changes in
the Executive's functions, duties and responsibilities resulting solely from the
Company no longer being a reporting company under the Federal securities laws or
the Company being a subsidiary of another company.
d. Voluntary Termination. The Executive's employment may
be terminated by the Executive at any time; provided that the extent of the
rights to continued compensation shall differ depending upon whether the
voluntary termination occurs before the first anniversary of the Effective Date
or on or after the first anniversary of the Effective Date.
e. Other Termination. At any time, the Company may
terminate the employment of the Executive for reason other than Cause, death or
Disability (a "Without Cause Termination").
f. Notice of Termination. Any termination of the
Executive's employment by the Company for Cause or due to Disability or by the
Executive for Good Reason or otherwise shall be communicated by Notice of
Termination to the other party. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated, if applicable, and
(iii) if the termination date is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more than 15 days after
the giving of such notice).
g. Date of Termination. If the Executive's employment is
terminated for any reason, whether pursuant to the terms of this Agreement or
otherwise, then the date of death (in the case of termination occasioned by the
death of the Executive) or otherwise the date set forth in the Notice of
Termination as the termination date of the Executive's employment shall be
deemed the "Date of Termination."
7. Compensation Upon Termination, During Disability or Following
Death.
a. During Disability. During any period that the
Executive is unable to perform his duties hereunder during the Employment Period
as a result of incapacity due to physical or mental illness or injury, the
Company shall continue to pay to the Executive his full Base Salary and other
benefits as in effect immediately prior to such physical or mental illness or
injury (including without limitation annual bonus payments in amounts no less
than were paid to the Executive with respect to the most recent full fiscal year
of the Company preceding the Effective Date or if more favorable to the
Executive, in amounts provided generally at any time after the Effective Date to
other peer executives of the Company and its affiliated companies) through the
Date of Termination and then thereafter for a period equal to the lesser of (i)
any then remaining portion of the Employment Period, or (ii) the number of
months equal to the sum of the Executive's Tenure Credit as of the Effective
Date and the Executive's Position Credit as of the Effective Date.
b. Death. If during the Employment Period the
Executive's employment is terminated by reason of death, the Company shall: (w)
pay to the Executive or his estate a lump sum payment (made within 10 days after
the Date of Termination) equal to (A) the Executive's Base Salary divided by (B)
twelve, multiplied by (C) the lesser of (i) the number of full or partial months
remaining in the Employment Period or
7
(ii) the number of months equal to the sum of the Executive's Tenure Credit as
of the Effective Date and the Executive's Position Credit as of the Effective
Date; (x) pay to the Executive or his estate an additional lump sum payment
(made within 10 days after the Date of Termination) equal to (A) the highest
amount of the annual incentive compensation, including annual bonus, received or
deferred, by the Executive for the most recent three (3) full fiscal years
immediately prior to the fiscal year in which the Date of Termination occurs,
divided by (B) twelve, multiplied by (C) the lesser of (i) the number of full or
partial months remaining in the Employment Period or (ii) the number of months
equal to the sum of the Executive's Tenure Credit as of the Effective Date and
the Executive's Position Credit as of the Effective Date; (y) provide to the
Executive's surviving dependents the medical insurance benefits contemplated by
Section 5.b. at the expense of the Company for one year from the Date of
Termination or through the end of the Employment Period whichever is longer and
(z) make available to the Executive's surviving dependents the medical benefits,
which are at least equal to and at a cost which is comparable to, those benefits
required to be provided and the costs required to be offered under "COBRA" for a
period of eighteen months after the expiration of the Company's obligations
under clause (y) above and for any additional period and to the extent required
under "COBRA."
c. Cause; Voluntary Termination Prior to One Year. If
the Executive's employment shall be terminated either (i) for Cause by the
Company or (ii) voluntarily by the Executive prior to the first anniversary of
the Effective Date other than for Good Reason, the Company shall pay the
Executive's full Base Salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given and shall have no further
obligations to the Executive under this Agreement.
d. Good Reason; Voluntary Termination on or After One
Year; Without Cause. If, during the Employment Period, (i) the Company shall
terminate the Executive's employment other than for Cause, death or Disability
(i.e., a Without Cause Termination), (ii) the employment of the Executive shall
be terminated by the Executive for Good Reason or (iii) the Executive shall
terminate his employment on or after the first anniversary date of the Effective
Date for any reason or no reason, the Company shall (x) pay to the Executive as
severance pay hereunder and in lieu of any other amounts due hereunder a lump
sum payment (made within 10 days after the Date of Termination) equal to (A) the
Applicable Factor times the Executive's then current Base Salary and the
Applicable Factor times the highest amount of the annual incentive compensation,
including annual bonus, received or deferred by the Executive for the three (3)
fiscal years immediately prior to the fiscal year in which the Date of
Termination occurs, (y) provide to the Executive the medical insurance benefits
contemplated by Section 5.b. at the expense of the Company for one year from the
Date of Termination or through the end of the Employment Period whichever is
longer and (z) make available to the Executive the medical benefits, which are
at least equal to and at a cost which is comparable to, those benefits required
to be provided and the costs required to be offered under "COBRA" for a period
of eighteen months after the expiration of the Company's obligations under
clause (y) above and for any additional period and to the extent required under
"COBRA."
e. Release. Payment of any compensation to the
Executive under this Section 7 following termination of employment shall be
conditioned upon the prior receipt by the Company of a release executed by the
Executive in substantially the form attached to this Agreement as EXHIBIT A.
8. Non-Exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any
benefit, bonus, incentive or other plan or program provided by the Company or
any of its affiliated companies and for which the Executive may qualify, nor
shall anything herein limit or otherwise affect such rights as the Executive may
have under any other agreements with the Company or any of its affiliated
companies. Amounts which are vested benefits or which the Executive is otherwise
entitled to receive under any plan or program of the Company or of any of its
affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan or program.
8
9. Executive Obligations.
a. For the Employment Period the Executive will not do
or say anything that reasonably may be expected to have the effect of
diminishing or impairing the goodwill and good reputation of the Company and its
officers, directors and products nor will the Executive intentionally disparage
or injure the reputation of the Company by making any material negative
statements about the Company's methods of doing business, the effectiveness of
its business policies and the quality of its products or personnel.
b. The Executive hereby agrees that during the
Executive's employment by the Company and for the Applicable Number of Months
following termination of the Executive's employment during the Employment Period
either (i) by the Company other than for Cause, death or Disability or (ii) by
the Executive for Good Reason or after the first anniversary date of the
Effective Date for any reason or no reason, the Executive shall not act in any
manner or capacity, directly or indirectly, in any individual or representative
capacity, whether as principal, agent, partner, officer, director, employee,
joint venturer, member of any business entity, consultant, advisor or investor
(except that the Executive shall have the right hereunder to own up to 2% of one
or more public companies having a class of equity securities registered with the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended) or otherwise, in or for any business entity or enterprise which
competes with the Company in any geographic area served by the Company at the
time of the Executive's termination and engages as its primary line of business
in the sale of automotive parts or accessories to retail customers or to
commercial auto repair outlets (the "Business");
c. The Executive hereby agrees that during the
Executive's employment by the Company and following the termination of the
Executive's employment, the Executive shall not without the prior written
consent of the Company, divulge, disclose or make accessible to any other
person, firm, partnership or company or other entity any Confidential
Information which shall not include information known generally or available to
the public or of information not considered confidential by persons engaged in
the business conducted by the Company or from disclosure required by law or
court order pertaining to the Business except (x) while employed by the Company
in the Business and for the benefit of the Company or (y) when required to do so
by a court of competent jurisdiction, by any governmental agency, or by any
administrative body or legislative body (including a committee thereof) with
purported or apparent jurisdiction to order the Executive to divulge, disclose
or make accessible such information.
d. The Executive hereby agrees that during the
Executive's employment by the Company and for the Applicable Number of Months
following the termination of the Executive's employment, the Executive shall not
without the prior written consent of the Company solicit or hire away any person
who is then an employee of the Company and was an employee of the Company at any
time after the Effective Date and prior to termination of the Executive's
employment.
e. The Executive also agrees that upon leaving the
Company's employ he will not take with him, without the prior written consent of
an officer authorized to act in the matter by the Board, any drawing, blueprint,
business strategies, budgets, projections, nonpublic financial information,
manuals, policies or other document of the Company, its subsidiaries, affiliates
and divisions.
f. If the scope of any restriction contained in Section
9.b., c. or d. hereof is too broad to permit enforcement of such restriction to
its full extent, then such restriction shall be enforced to the maximum extent
permitted by law, and the Executive hereby consents and agrees that such scope
may be judicially modified accordingly in any proceedings brought to enforce
such restrictions.
9
g. The Executive acknowledges and agrees that the
Company's remedy at law for any breach of the Executive's obligations under this
Section 9 (other than Section 9.b.) may be inadequate, and agrees and consents
that temporary and/or permanent injunctive relief may be granted in any
proceeding which may be brought to enforce any provision hereof (other than
Section 9.b.), without the necessity of proof of actual damage. In the event of
any breach of the provisions of Section 9.b. hereof, as liquidated damages and
in lieu of any other damages, payments to or actions by the Company, the
Executive shall pay to the Company an amount equal to the product of (i) any
lump sum payment made to Executive under this Agreement divided by twenty-four
multiplied by (ii) twenty-four minus the number of months (including as a whole
month any portion thereof) since the Executive's Date of Termination.
10. Review by Counsel. The Executive has had sufficient time and
the opportunity, whether or not exercised, to have this Agreement reviewed by
counsel of the Executive's choosing and to be advised as to the Executive's
rights and obligations hereunder.
11. Successors.
a. This Agreement shall not be assignable by either
party without the consent of the other party.
b. This Agreement shall be binding upon and inure to the
benefit of the Company, its successors or assigns, by operation of law or
otherwise, including without limitation any corporation or other entity or
person which shall succeed (whether directly or indirectly, by purchase, merger,
consolidation, or otherwise) to all or substantially all of the business and/or
assets of the Company, and the Company will require any parent company or
successor, by agreement in form and substance satisfactory to the Executive,
expressly to assume and agree to perform, or (in the case of a parent company)
to guarantee the performance of, this Agreement. Except as otherwise provided
herein this Agreement shall be binding upon and inure to the benefit of the
Executive and his legal representatives, heirs, and assigns, provided, however,
that in the event of the Executive's death prior to payment or distribution of
all amounts, distributions, and benefits due him hereunder, each such unpaid
amount and distribution shall be paid in accordance with this Agreement to the
person or persons designated by the Executive to the Company to receive such
payment or distribution and in the event the Executive has made no applicable
designation, to the persons or persons designated by the Executive as the
residuary beneficiaries of his estate if he dies testate or to his heirs at law
under the intestate succession laws of his state of domicile if he dies
intestate.
12. Miscellaneous.
a. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
b. Executive shall not be required to mitigate the
amount of any payment or benefit provided for herein by seeking other employment
or otherwise, nor shall the amount of any payment or benefit provided for herein
be reduced by any compensation earned by Executive as a result of employment by
another employer after the Date of Termination, or otherwise.
10
c. All notices and other communications which are
required or may be given under this Agreement shall be in writing and shall be
deemed to have been duly given when received if personally delivered; when
transmitted and the appropriate facsimile confirmation is received if
transmitted by facsimile or similar electronic transmission method; one working
day after it is sent, if sent by recognized expedited delivery service; and five
days after it is sent, if mailed, first class mail, certified mail, return
receipt requested, with postage prepaid. In each case notice shall be sent to:
To the Executive:
Xxxxxxxx X. Xxxxxx
----------------------
----------------------
To the Company:
Discount Auto Parts, Inc.
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: President
Telecopy: (000) 000-0000
or to such other address as either party may have specified in writing to the
other using the procedures specified above in this Section 12.c.
d. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
e. The Company may withhold from any amounts payable
under this Agreement such federal, state or local taxes as shall be required to
be withheld pursuant to any applicable law or regulation.
f. This Agreement contains the entire understanding of
the Company and the Executive with respect to the subject matter hereof.
g. The Executive shall not have any right to pledge,
hypothecate, anticipate, or in any way create a lien upon any amounts provided
under this Agreement, and no payments or benefits due hereunder shall be
assignable in anticipation of payment either by voluntary or involuntary acts or
by operation of law. So long as the Executive lives, no person, other than the
parties hereto, shall have any rights under or interest in this Agreement or the
subject matter hereof.
h. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, the
remaining provisions of this Agreement shall be unaffected thereby and shall
remain in full force and effect.
i. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together constitute one and the same instrument.
j. Notwithstanding the pendency of any dispute or
controversy concerning termination of employment or the effects thereof, the
Company will continue to pay Executive semi-monthly the full compensation in
effect immediately before any Notice of Termination giving rise to the dispute
was given (including, but not limited to, Base Salary and bonus or incentive
pay) and continue Executive as a participant in all compensation, benefit and
insurance plans in which the Executive was then participating, until the
11
dispute is finally resolved. Amounts paid under this paragraph are in addition
to all other amounts due under this Agreement and shall not be offset against or
reduce any other amounts due under this Agreement except as otherwise determined
in any legal proceedings brought with respect to enforcement of this Agreement.
k. The Executive and the Company acknowledge that this
Agreement, although binding on the parties hereto, shall have not become
effective, and is not intended to alter in any way the current relationship of
the Executive and the Company, prior to the Effective Date. This Agreement shall
terminate and there shall be no further rights or liabilities hereunder upon a
termination of the Executive's employment prior to the Effective Date.
l. The Executive and the Company acknowledge that no
funds shall be set aside or deposited in trust in advance by the Company for
paying benefits under this Agreement and thus no benefits under this Agreement
shall be considered funded for any purposes.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
WITNESSES:
DISCOUNT AUTO PARTS, INC.
/s/ Xxxxx Xxxxx By: /s/ C. Xxxxxxx Xxxxx
--------------------------- -----------------------------
Title: EVP - Finance
"Company"
/s/ Xxxxx Xxxxx By: /s/ C. Xxx Xxxxxx
--------------------------- -----------------------------
"Executive"
12
EXHIBIT A
FORM OF RELEASE
WHEREAS, Xxxxxxxx X. Xxxxxx (the "Executive") is an employee of
Discount Auto Parts, Inc., (the "Company") and is a party to the Change of
Control Employment Agreement dated ____________ (the "Agreement");
WHEREAS, the Executive's employment has been terminated in accordance
with Section ___ of the Agreement; and
WHEREAS, the Executive is required to sign this Release in order to
receive the payment of any compensation under Section __ of the Agreement
following termination of employment.
NOW, THEREFORE, in consideration of the promises and agreements
contained herein and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, and intending to be legally bound, the
Executive agrees as follows:
1. This Release is effective on the date hereof and will continue in
effect as provided herein.
2. In consideration of the payments to be made and the benefits to be
received by the Executive pursuant to the Agreement, which the
Executive acknowledges are in addition to payment and benefits to which
the Executive would be entitled to but for the Agreement, the
Executive, for the Executive and the Executive's dependents,
successors, assigns, heirs, executors and administrators (and the
Executive and their legal representatives of every kind), hereby
releases, dismisses, remises and forever discharges the Company, its
predecessors, parents, subsidiaries, divisions, related or affiliated
companies, officers, directors, stockholders, members, employees,
heirs, successors, assigns, representatives, agents and counsel
(collectively the "Released Party") from any and all arbitrations,
claims, including claims for attorney's fees, demands, damages, suits,
proceedings, actions and/or causes of action of any kind and every
description, whether known or unknown, which the Executive now has or
may have had for, upon, or by reason of any cause whatsoever
("claims"), against the Released Party, including but not limited to:
(a) any and all claims arising out of or relating to Executive's
employment by or service with the Company and the Executive's
termination from the Company.
(b) any and all claims of discrimination, including but not
limited to claims of discrimination on the basis of sex, race,
age, national origin, marital status, religion or handicap,
including, specifically, but without limiting the generality
of the foregoing, any claims under the Age Discrimination in
Employment Act, as amended, Title VII of the Civil Rights Act
of 1964, as amended, the Americans with Disabilities Act; and
(c) any and all claims of wrongful or unjust discharge or breach
of any contract or promise, express or implied.
3. The Executive understands and acknowledges that the Company does not
admit any violation of law, liability or invasion of any of the
Executive rights and that any such violation, liability or invasion is
expressly denied. The consideration provided for this Release is made
for the
13
purpose of settling and extinguishing all claims and rights (and every
other similar or dissimilar matter) that the Executive ever had or now
may have against the Company to the extent provided in this Release.
The Executive further agrees and acknowledges that no representations,
promises or inducements have been made that the Company other than as
appear in the Agreement.
4. The Executive further agrees and acknowledges that:
(a) The Release provided for herein releases claims to and
including the date of this Release;
(b) The Executive has been advised by the Company to consult with
legal counsel prior to executing this Release, has had an
opportunity to consult with and to be advised by legal counsel
of the Executive's choice, fully understands the terms of this
Release, and enters into this Release freely, voluntarily and
intending to be found.
5. The Executive agrees that the Executive will never file a lawsuit or
other complaint asserting any claim that is released in this Release.
IN WITNESS WHEREOF, the Executive has executed and delivered this
Release on the date set forth below.
Dated:
------------------------------ -----------------
Executive
