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Exhibit 10.8.2
EMPLOYMENT AGREEMENT
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This Employment Agreement ("Agreement") is made and entered into as of and
effective June 1, 1997 by and between AUTOMOTIVE ONE PARTS STORES, INC., a
Florida corporation (the "Company"), and XXXXXXX X. POWER (hereinafter called
the "Executive").
R E C I T A L S
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A. The Company believes that the attraction and retention of key employees
such as the Executive is essential to the Company's growth and success; and
B. The Company desires to employ Executive as its Vice President of
Corporate Development and Investor Relations, and Executive is willing and able
to render his services to the Company from and after the date hereof, on the
terms and conditions of this Employment Agreement; and
C. The Executive has extensive experience relating to the strategic
planning, corporate development and the development of appropriate investor
relations policies and procedures for publicly held corporations; and
D. The Executive is willing to make his services available to the Company
and on the terms and conditions hereinafter set forth; and
E. The Board has determined that this Agreement will encourage the
Executive's dedication to the Company, and is in the best interests of the
Company.
AGREEMENT
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NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth herein, the parties agree as follows:
1. Employment.
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1.1 Employment. The Company hereby agrees to employ the Executive and the
Executive hereby agrees to serve the Company on the terms and conditions set
forth herein.
1.2 Duties of Executive. During the term of this Agreement, the Executive
shall serve as Vice President of Corporate Development and Investor Relations
of the Company, shall diligently perform all services as may be assigned to him
by the Board, and shall exercise such power and authority as may from time to
time be delegated to him by the Board. The Executive shall devote sufficient
time to perform his duties (it being understood and agreed that Executive's
responsibilities do not require his full time activity), and use his best
efforts to promote the interests of the Company.
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2. Term.
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2.1 Term. The term of this Agreement, and the employment of the Executive
hereunder, shall be effective as of June 1, 1997 (the "Commencement Date") and
shall expire on May 31, 2000, unless sooner terminated in accordance with the
terms and conditions hereof (the "Term").
2.2 Expiration Date. The date on which the term of this Agreement shall
expire, is sometimes referred to in this Agreement as the Expiration Date.
3. Compensation.
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3.1 Base Salary. The Executive shall receive a base salary (the "Base
Salary") during each year of the Term, payable in installments consistent with
the Company's normal payroll schedule and subject to applicable withholding and
other taxes, in the amount of $35,000 per year.
3.2 Incentive Bonus. The Executive shall be eligible to receive an
incentive bonus based on his annual performance, as valued and determined by
and in the sole discretion of the Board of Directors.
4. Expense Reimbursement and Other Benefits.
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4.1 Reimbursement of Expenses. During the term of Executive's employment
hereunder, upon the submission of proper substantiation by the Executive, and
subject to such rules and guidelines as the Company may from time to time
adopt, the Company shall reimburse the Executive for all reasonable expenses
actually paid or incurred by the Executive in the course of and pursuant to the
business of the Company. The Executive shall account to the Company in writing
for all expenses for which reimbursement is sought and shall supply to the
Company copies of all relevant invoices, receipts or other evidence reasonably
requested by the Company.
4.2 Compensation/Benefit Programs. During the term of this Agreement, the
Executive not be entitled to participate in all medical, dental,
hospitalization, accidental death and dismemberment, disability, travel and
life insurance plans, and any and all other plans as are presently and
hereinafter offered by the Company to its executives, including savings,
pension, profit-sharing and deferred compensation plans.
4.3 Working Facilities. Executive shall be provided with an office and
appropriate secretarial support adequate for the performance of his duties
hereunder when working in the Company's principal office, and shall be
reimbursed for all approved reasonable office expenses incurred outside of the
Company's principal office when working on Company business.
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4.4 Stock Options. During the term of his employment, Employee will be
provided with 30,000 non-qualified stock options under the Company's stock
option plan.
4.5 Other Benefits. The Executive shall receive such additional benefits,
if any, as the Board of the Company shall from time to time determine.
5. Termination.
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5.1 Termination for Cause. The Company shall at all times have the right,
upon written notice to the Executive, to terminate the Executive's employment
hereunder, for cause. For purposes of this Agreement, the term "cause" shall
mean (i) an action or omission of the Executive which constitutes a willful and
material breach of this Agreement which is not cured within fifteen (15) days
after receipt by the Executive of written notice of same, (ii) fraud,
embezzlement, misappropriation of funds or breach of trust in connection with
his services hereunder, (iii) conviction of any crime which involves dishonesty
or a breach of trust, (iv) gross negligence in connection with the performance
of the Executive's duties hereunder, or (v) the material and willful or knowing
failure or refusal (other than as a result of a disability) by the Executive to
perform his duties hereunder. Any termination for cause shall be made in
writing to the Executive, which notice shall set forth in detail all acts or
omissions upon which the Company is relying for such termination. The
Executive shall have the right to address the Board regarding the acts set
forth in the notice of termination. Upon any termination pursuant to this
Section 5.1, the Company shall pay to the Executive only his Base Salary to the
date of termination. The Company shall have no further liability hereunder
(other than for reimbursement for reasonable business expenses incurred prior
to the date of termination, subject, however, to the provisions of Section
4.1).
5.2 Disability. The Company shall at all times have the right, upon
written notice to the Executive, to terminate the Executive's employment
hereunder, if the Executive shall become entitled to benefits under the
Company's Long Term Disability Plan as then in effect, or, if the Executive
shall as the result of mental or physical incapacity, illness or disability,
become unable to perform his obligations hereunder for a period of 90 days in
any 12-month period. The Company shall have sole discretion based upon
competent medical advice to determine whether the Executive continues to be
disabled. Upon any termination pursuant to this Section 5.2, the Company shall
(i) pay to the Executive any unpaid Base Salary through the effective date of
termination specified in such notice, and (ii) pay to the Executive a severance
payment equal to 3 months of the Executive's Base Salary at the time of the
termination of the Executive's employment with the Company. The Company shall
have no further liability hereunder (other than for reimbursement for
reasonable business expenses incurred prior to the date of termination,
subject, however to the provisions of Section 4.1).
5.3 Death. In the event of the death of the Executive during the term of
his employment hereunder, the Company shall pay to the estate of the deceased
Executive any
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unpaid Base Salary through the Executive's date of death. The Company shall
have no further liability hereunder (other than for (x) reimbursement for
reasonable business expenses incurred prior to the date of the Executive's
death, subject, however to the provisions of Section 4.1).
5.4 Termination Without Cause. At any time the Company shall have the
right to terminate the Executive's employment hereunder by written notice to
the Executive. Upon any termination pursuant to this Section 5.4 (that is not
a termination under any of Sections 5.1, 5.2, 5.3 or 5.5) the Company shall (i)
pay to the Executive any unpaid Base Salary through the effective date of
termination specified in such notice, and (ii) continue to pay the Executive's
Base Salary following the termination of the Executive's employment with the
Company for the Period (as hereinafter defined) in the manner and at such time
as the Base Salary otherwise would have been payable to the Executive. For the
purposes of this Section the "Period" shall be defined as the number of days
remaining under the Term of this Agreement. The Company shall have no further
liability hereunder (other than for reimbursement for reasonable business
expenses incurred prior to the date of termination, subject, however, to the
provisions of Section 4.1).
5.5 Resignation by Executive. The Executive shall at all times have the
right, upon sixty (60) days written notice to the Company, to terminate the
Executive's employment hereunder. Upon any termination pursuant to this
Section 5.5, the Company shall pay to the Executive any unpaid Base Salary
through the effective date of termination specified in such notice. The
Company shall have no further liability hereunder (other than for reimbursement
for reasonable business expenses incurred prior to the date of termination,
subject, however, to the provisions of Section 4.1).
5.6 Survival. The provisions of this Article 5 shall survive the
termination of this Agreement, as applicable.
6. Restrictive Covenants.
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6.1 Non-competition. At all times while the Executive is employed by the
Company and for a six (6) month period after the termination of the Executive's
employment with the Company for any reason, the Executive shall not, directly
or indirectly, engage in or have any interest in any sole proprietorship,
partnership, corporation or business or any other person or entity (whether as
an employee, officer, director, partner, agent, security holder, creditor,
consultant or otherwise) that directly or indirectly (or through any affiliated
entity) engages in competition with the Company located within a fifty (50)
mile radius of Company's current place of business or any subsequent location
Company may conduct business from where the Company markets and sells its
products or its services (for this purpose, any business that engages in the
retail or wholesale automotive parts and accessories business shall be deemed
to be in competition with the Company); provided that such provision shall not
apply to the Executive's ownership of Common Stock of the Company or the
acquisition by the Executive, solely as an investment, of securities of any
issuer that is registered under Section 12(b) or 12(g)
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of the Securities Exchange Act of 1934, as amended, and that are listed or
admitted for trading on any United States national securities exchange or that
are quoted on the National Association of Securities Dealers Automated
Quotations System, or any similar system or automated dissemination of
quotations of securities prices in common use, so long as the Executive does
not control, acquire a controlling interest in or become a member of a group
which exercises direct or indirect control or, more than five percent of any
class of capital stock of such corporation. During the term of Executive's
employment relationship with Company, the geographical limitation of a fifty
(50) mile radius contained above shall not be applicable, and Executive shall
be prohibited from such ownership and/or activity regardless of the
geographical location of such other business.
6.2 Nondisclosure. The Executive shall not at any time, directly or
indirectly, divulge, communicate, use to the detriment of the Company or for
the benefit of any other person or persons, or misuse in any way, any
Confidential Information (as hereinafter defined) pertaining to the business of
the Company. Any Confidential Information or data now or hereafter acquired by
the Executive with respect to the business of the Company (which shall include,
but not be limited to, information concerning the Company's financial
condition, prospects, technology, customers, suppliers, sources of leads and
methods of doing business) shall be deemed a valuable, special and unique asset
of the Company that is received by the Executive in confidence and as a
fiduciary, and Executive shall remain a fiduciary to the Company with respect
to all of such information. For purposes of this Agreement, "Confidential
Information" means information disclosed to the Executive or known by the
Executive as a consequence of or through his employment by the Company
(including information conceived, originated, discovered or developed by the
Executive) prior to or after the date hereof, and not generally known, about
the Company or its business. Notwithstanding the foregoing, nothing herein
shall be deemed to restrict the Executive from disclosing Confidential
Information to the extent required by law.
6.3 Nonsolicitation of Employees and Customers. At all times while the
Executive is employed by the Company and for a six (6) month period after the
termination of the Executive's employment with the Company for any reason, for
the Executive shall not, directly or indirectly, for himself or for any other
person, firm, corporation, partnership, association or other entity (a) employ
or attempt to employ or enter into any contractual arrangement with any
employee or former employee of the Company, unless such employee or former
employee has not been employed by the Company for a period in excess of six
months, and/or (b) divert, attempt to divert, call on or solicit any of the
actual or targeted prospective customers of the Company on behalf of any person
or entity in connection with any business competitive with the business of the
Company, nor shall the Executive make known the names and addresses of such
clients or any information relating in any manner to the Company's trade or
business relationships with such customers, other than in connection with the
performance of Executive's duties under this Agreement.
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6.4 Books and Records. All books, records, and accounts relating in any
manner to the customers or clients of the Company, whether prepared by the
Executive or otherwise coming into the Executive's possession, shall be the
exclusive property of the Company and shall be returned immediately to the
Company on termination of the Executive's employment hereunder or on the
Company's request at any time.
6.5 Definition of Company. Solely for purposes of this Section 6, the
term "Company" also shall include any existing or future subsidiaries of the
Company that are operating during the time periods described herein and any
other entities that directly or indirectly, through one or more intermediaries,
control, are controlled by or are under common control with the Company during
the periods described herein.
6.6 Acknowledgment by Executive. The Executive acknowledges and confirms
that the length of the term of the provisions of this Section 6 and the
geographical restrictions contained in Section 6.1 are fair and reasonable and
not the result of overreaching, duress or coercion of any kind. The Executive
further acknowledges and confirms that his full, uninhibited and faithful
observance of each of the covenants contained in this Section 6 will not cause
him any undue hardship, financial or otherwise, and that enforcement of each of
the covenants contained herein will not impair his ability to obtain employment
commensurate with his abilities and on terms fully acceptable to him or
otherwise to obtain income required for the comfortable support of him and his
family and the satisfaction of the needs of his creditors. The Executive
acknowledges and confirms that his special knowledge of the business of the
Company is such as would cause the Company serious injury or loss if he were to
use such ability and knowledge to the benefit of a competitor or were to
compete with the Company in violation of the terms of this Section 6. The
Executive further acknowledges and confirms that the Confidential Information,
the substantial relationships with Company's specific prospective and existing
customers and suppliers: (i) are valuable, special, and a unique asset of
Company; (ii) have provided and will hereafter provide Company with a
substantial competitive advantage in the operation of its business; and (iii)
are a legitimate business interest of Company. Company and Executive also
agree that the existence of these legitimate business interests justifies the
need for the restrictive covenants set forth in this Section, and the
restrictive covenants are reasonably necessary to protect Company's legitimate
business interests.
6.7 Reformation by Court. In the event that a court of competent
jurisdiction shall determine that any provision of this Section 6 is invalid or
more restrictive than permitted under the governing law of such jurisdiction,
then only as to enforcement of this Section 6 within the jurisdiction of such
court, such provision shall be interpreted and enforced as if it provided for
the maximum restriction permitted under such governing law.
6.8 Extension of Time. If the Executive shall be in violation of any
provision of this Section 6, then each time limitation set forth in this
Section 6 shall be extended for a period of time equal to the period of time
during which such violation or violations occur. If the Company seeks
injunctive relief from such violation in any court, then the covenants set
forth in
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this Section 6 shall be extended for a period of time equal to the pendency of
such proceeding including all appeals by the Executive.
6.9 Survival. The provisions of this Section 6 shall survive the
termination of this Agreement, as applicable.
7. Injunction and Remedies.
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7.1 It is recognized and hereby acknowledged by the parties hereto that a
breach by the Executive of any of the covenants contained in Section 6 of this
Agreement will cause irreparable harm and damage to the Company, the monetary
amount of which may be virtually impossible to ascertain. As a result, the
Executive recognizes and hereby acknowledges that the Company shall be entitled
to an injunction from any court of competent jurisdiction enjoining and
restraining any violation of any or all of the covenants contained in Section 6
of this Agreement by the Executive or any of his affiliates, associates,
partners or agents, either directly or indirectly, and that such right to
injunction shall be cumulative and in addition to whatever other remedies the
Company may possess. In the event that the Company does apply for such an
injunction, Executive shall not raise as a defense thereto that the Company has
an adequate remedy at law. Executive hereby consents and agrees that temporary
and permanent injunctive relief may be granted in any proceedings which might
be brought to enforce any such terms, covenants, or provisions without the
necessity of proof of actual damages or posting of a bond.
7.2 Executive and Company hereby acknowledge and agree that, in the event
of any breach by Executive, directly or indirectly, of the foregoing
restrictive covenants, it will be difficult to ascertain the precise amount of
damages that may be suffered by Company by reason of such breach; and
accordingly, the parties hereby agree that, as liquidated damages (and not as a
penalty) in respect of any such breach, Executive shall be required to provide
an accounting of any and all benefits received by Executive as a result of such
breach, including, but not limited to, true and correct financial records, or
other data detailing the financial benefit Executive received or derived,
directly or indirectly, from any and all violative acts or activities, and
Executive thereafter shall be required to pay to Company, as damages, cash
amounts equal to any and all gross revenues received or derived by Executive,
directly or indirectly, from any and all violative acts or activities. The
parties hereby agree that the foregoing constitutes a fair and reasonable
estimate of the actual damages that might be suffered by reason of any breach
of Section 6 by Executive, and the parties hereby agree to such liquidated
damages in lieu of any and all other measures of damages that might be asserted
in respect of any subject breach.
8. Claims not a Defense. Executive expressly agrees that the existence of
any claims that he may have against the Company, whether or not arising from
this Agreement, shall not constitute a defense to the enforcement of the
covenants or provisions set forth in Sections 6 and 7.
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9. Assignment. Neither party shall have the right to assign or delegate
his rights or obligations hereunder, or any portion thereof, to any other
person.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. Each party hereto agrees to
submit to the personal jurisdiction and venue of the State and/or Federal
Courts located in Orange County, Florida, for resolution of all disputes
arising out of, in connection with, or by reason of the interpretation,
construction, and enforcement of this Agreement, and hereby waives the claim or
defense therein that such courts constitute an inconvenient forum.
11. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and, upon
its effectiveness, shall supersede all prior agreements, understandings and
arrangements, both oral and written, between the Executive and the Company (or
any of its affiliates) with respect to such subject matter. This Agreement may
not be modified in any way unless by a written instrument signed by both the
Company and the Executive.
12. Notices: All notices required or permitted to be given hereunder
shall be in writing and shall be personally delivered by courier, sent by
registered or certified mail, return receipt requested or sent by confirmed
facsimile transmission addressed as set forth herein. Notices personally
delivered, sent by facsimile or sent by overnight courier shall be deemed given
on the date of delivery and notices mailed in accordance with the foregoing
shall be deemed given upon the earlier of receipt by the addressee, as
evidenced by the return receipt thereof, or three (3) days after deposit in the
U. S. mail. Notice shall be sent (i) if to the COMPANY, addressed to: 000
Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, 00000, Telecopier (000) 000-0000,
Attention: Chief Financial Officer, and (ii) if to the EXECUTIVE, to his
address as reflected on the payroll records of the Company, or to such other
address as either party hereto may from time to time give notice of to the
other.
13. Benefits; Binding Effect. This Agreement shall be for the benefit of
and binding upon the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and, where applicable,
assigns, including, without limitation, any successor to the Company, whether
by merger, consolidation, sale of stock, sale of assets or otherwise.
14. Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement or any
part thereof, all of which are inserted conditionally on their being valid in
law, and, in the event that any one or more of the words, phrases, sentences,
clauses or sections contained in this Agreement shall be declared invalid, this
Agreement shall be construed as if such invalid word or words, phrase or
phrases, sentence or sentences, clause or clauses, or section or sections had
not been inserted. If such invalidity is caused by length of time or size of
area, or both, the otherwise invalid provision will be considered to be reduced
to a period or area which would cure such invalidity.
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15. Waivers. The waiver by either party hereto of a breach or violation
of any term or provision of this Agreement shall not operate nor be construed
as a waiver of any subsequent breach or violation.
16. Damages. Nothing contained herein shall be construed to prevent the
Company or the Executive from seeking and recovering from the other damages
sustained by either or both of them as a result of its or his breach of any
term or provision of this Agreement. In the event that either party hereto
brings suit for the collection of any damages resulting from, or the injunction
of any action constituting, a breach of any of the terms or provisions of this
Agreement, then the party found to be at fault shall pay all reasonable court
costs and attorneys' fees of the other, including all costs of collection or
appeals.
17. Section Headings. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
18. No Third Party Beneficiary. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
other than the Company, the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and assigns, any rights or
remedies under or by reason of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
COMPANY:
AUTOMOTIVE ONE PARTS STORES, INC.,
a Florida corporation
By: /s/
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Name: Xxxxxx X. Xxxxxx, III
Title: President
EXECUTIVE:
/s/
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Xxxxxxx X. Power
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