EXHIBIT 10-a-17
EMPLOYMENT AGREEMENT
This Employment Agreement made and entered into this ___ day of
__________, 1995 by and between ACE HARDWARE CORPORATION, a
Delaware corporation, hereinafter referred to as the "Employer",
and ________________, hereinafter referred to as the "Executive";
W I T N E S S E T H :
Whereas the Executive is now employed by the Employer and the
Employer and Executive desire to enter into an Agreement to provide
for the continuation of the services of the Executive for the
Employer for a term of years to the extent and upon the terms and
conditions hereinafter set forth;
Now, therefore, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto
agree as follows:
l. Employment. The Employer hereby employs the Executive as an
executive officer of the Employer holding such specific office or
offices during the term of this Agreement to which she has been
appointed by the Employer or is hereafter elected by the Board of
Directors of the Employer, and the Executive hereby accepts such
employment upon the terms and conditions hereinafter set forth.
The duties and responsibilities of the Executive shall include
those duties and responsibilities assigned to the office or offices
held by her under the Employer's By-laws and its practices and
procedures, together with such additional duties as may reasonably
be assigned to her from time to time by the President or the Board
of Directors of the Employer. If, during the term of this
Agreement, the Executive shall become eligible to be elected or
appointed as a director of the Employer, then, in the event that
she is elected or appointed as such a director, the Executive shall
serve in such capacity without additional compensation during the
remainder of the term of this Agreement.
2. Term of Agreement. The initial term of this Agreement shall
begin on January 1, 1996 and shall terminate on December 31, 1997,
unless the Agreement shall have been terminated earlier by reason
of the Executive's resignation, death, retirement or termination
for cause pursuant to Section 4. hereof or by reason of a
determination made pursuant to Section 9. hereof. Provided the
Executive is actively employed by the Employer as of the last day
of the initial term hereof, the Agreement shall automatically be
extended for an additional term of one (l) year following the
expiration of the initial term unless either the Employer or the
Executive shall have delivered written notice to the other party
hereto not less than sixty (60) days prior to December 31, 1997 of
its or her intention to terminate the Agreement at the end of the
initial term, in which case the Agreement shall not be extended
beyond December 31, 1997.
3. Employer's Alternative Option to Re-offer Same Agreement. In
lieu of either allowing this Agreement to be extended for an
additional one-year term beyond December 31, 1997 or exercising its
right not to extend the Agreement for such an additional one-year
term, the Employer shall have the additional option of offering to
the Executive a new Employment Agreement to be effective as of
January 1, 1998 which shall contain all of the same terms and
conditions as this Agreement except for a provision comparable to
this Section 3. and for those modifications which would be required
with respect to the then current salary of the Executive and the
dates or years to be designated in such new Agreement. In order to
exercise such option, the Employer shall deliver written notice to
the Executive of the Employer's intention to offer her such new
Employment Agreement not less than sixty (60) days prior to
December 31, 1997. With such notice the Employer shall tender to
the Executive two (2) copies of such new agreement duly executed on
behalf of the Employer. In the event that the Executive does not
return to the Employer one (l) copy of said new agreement executed
by the Executive by December 31, 1997, the Employer's offer of such
new agreement shall be deemed null and void. Any decision on the
part of the Employer to offer such new agreement to the Executive,
as well as any decision on the part of the Employer not to allow
this Agreement to be extended for an additional term of one (1)
year as provided for in Section 2. above, shall be made only by the
Board of Directors of the Employer.
4. Termination for Cause. The Employer may dismiss the Executive
from its employment and terminate this Agreement at any time for
cause, which shall consist of (a) theft, fraud, or embezzlement, or
conviction of any felony; or (b) the giving away or selling of any
trade secrets belonging to the Employer or of any information,
plans or records acquired or compiled by the Executive, or
furnished to her by Employer, in conjunction with her employment
hereunder for use in Employer's business, provided that such
activity results in a proven detriment to the Employer, and
provided further that this provision shall not apply to
information, plans and records which are otherwise available to
competitors of Employer or to members of the public. In the event
of any such termination of this Agreement for cause, payment to the
Executive of whatever portion of the Executive's salary which shall
have accrued to her to the date of such termination shall be deemed
to constitute payment in full for all compensation due to the
Executive hereunder and shall also constitute a full and complete
discharge of any and all claims which she might otherwise have or
purport to have hereunder with respect to any period subsequent to
the effective date of such termination for the payment by Employer
of compensation to her or for the payment by Employer after such
date of the cost of any additional benefits provided by Employer
for the Executive.
5. Compensation. For all services rendered by the Executive
under this Agreement, the Employer agrees to pay to the Executive
a salary of ________________________________ Dollars
($_________.00) per year, or such increased amount, if any, as
shall be approved by the Board of Directors of the Employer
pursuant to the annual review procedure. Such salary shall be paid
to the Employee in semi-monthly installments, or in such other
manner as shall be mutually agreed upon by the Employer and the
Executive. The Employer further agrees to review the salary of the
Executive hereunder at a meeting of the Board of Directors of the
Employer during the year 1996 with respect to the amount of such
salary to be paid to the Executive in 1997. In the event that this
Agreement is extended for one (1) year beyond December 31, 1997,
the Employer agrees to further review said salary at a meeting of
the Board of Directors of the Employer in 1997 with respect to the
amount thereof to be paid to the Executive in the year 1998. The
Executive shall be paid such increased salary, if any, as the
Employer's Board of Directors shall deem to be appropriate after
the completion of each salary review made by the Board.
Notwithstanding anything herein to the contrary, the Employer's
contractual obligation for the payment of compensation hereunder
shall be suspended during any period Executive is receiving income
continuation benefits, including, but not limited to, short or
long-term disability benefits, under any Employer-sponsored plan.
6. Limitation on Outside Business Activities. The Executive
shall devote her entire business time, attention and energies to
the business of the Employer, and shall not, during the term of
this Agreement, be engaged in any other business activity, whether
or not such business activity is pursued for gain, profit or other
pecuniary advantage, except that the Executive may devote a
reasonable portion of her time during business hours to
professional, civic, community or charitable activities, and, with
the approval of the President of the Employer, to service as a
director of other corporations and to other types of activities not
expressly mentioned herein.
7. Vacations. The Executive shall be granted during each
calendar year a vacation consisting of such number of weeks as she
would be entitled to during each such year in accordance with the
vacation policy established by the Employer for its executive
officer employees.
8. Nondisclosure of Confidential Information. It is understood
and agreed that the method and system of business used and
developed by the Employer involves marketing programs, pricing
procedures, operational procedures, training procedures,
information concerning retailers supplied by the Employer, lists of
vendors to the Employer, and other confidential information and/or
trade secrets of the Employer, and that the Executive, by virtue of
her employment hereunder, necessarily has and will become
acquainted with such confidential information and/or trade secrets.
It is further understood and agreed that the business and customers
of the Employer extend throughout the fifty (50) States of the
United States and its territorial possessions, the District of
Columbia, and several foreign countries located in various parts of
the world. Accordingly, the Executive agrees to treat as
confidential and to use only for the advancement of the interests
of the Employer all such information and/or trade secrets belonging
to the Employer and all information, plans and records submitted to
her by the Employer or acquired or compiled by her from time to
time in the course of her employment by the Employer for use in the
Employer's business which she knows to have been received by her in
confidence or which she knows would not otherwise be available to
competitors of the Employer or to members of the public and, as a
further specific condition of her employment hereunder, and in
further consideration thereof, the Executive covenants and agrees
that she will not, at any time during the term of this Agreement or
after its termination divulge to any person, firm or corporation
engaged anywhere in any line of business which is directly or
indirectly competitive with any line of business engaged in by the
Employer any such confidential information or trade secrets. In
the event of a breach or threatened breach of the provisions of
this Section of this Agreement which conflicts with or would
conflict with the interests of the Employer and which results in or
would result in a detriment to the Employer, the Employer shall be
entitled to an injunction restraining the Executive from so
disclosing any such trade secrets or confidential information.
Nothing contained herein shall be construed as prohibiting the
Employer from pursuing any other remedies available to the Employer
for such breach or threatened breach, including the recovery of
damages from the Executive.
9. Termination for Physical or Mental Incapacity or Alcohol or
Narcotics Addiction. Notwithstanding any other provision herein
contained, the Employer may, at its option, terminate this
Agreement at any time after it shall have been determined by
competent medical authority that the Executive has become
physically or mentally incapacitated or has become addicted to the
use of alcohol or narcotics to such an extent that she is prevented
by reason of such physical disability, mental incapacity, or
addiction from properly carrying on her duties hereunder; provided,
however, that the foregoing shall not be construed to relieve the
Employer of any obligations it would otherwise have under the
Americans with Disabilities Act of 1990 or other applicable
Illinois statutes to the extent the same are not preempted thereby.
In the event of any such termination of this Agreement, the
Executive shall be paid whatever portion of her salary shall have
accrued to her to the date of such termination, together with such
amount, if any, as shall equal the amount of salary which otherwise
would have been paid to her during any accrued vacation time not
utilized by her, and the payment to the Executive of such salary
and such accrued vacation pay shall be deemed to constitute payment
in full for all compensation due to the Executive hereunder and
shall further constitute a full and complete discharge of any and
all claims which she might otherwise have or purport to have
hereunder with respect to any period subsequent to the effective
date of the termination of her employment pursuant to this Section
9. for the payment by Employer of compensation to her or for the
payment by Employer after such date of the cost of any additional
benefits provided by Employer for the Executive.
10. Non-Competition with Employer upon Voluntary Termination of
Employment. As a further specific condition of her employment by
the Employer hereunder and in further consideration of such
employment, the Executive agrees that, for a period of one (1) year
following any voluntary termination by the Executive of her
employment hereunder at any time prior to the last day of the term
for which she would otherwise be employed under this Agreement, she
will not, in any State or territory of the United States of America
or the District of Columbia in which the Employer has franchise or
other regular customer relationships with retailers at the time of
such termination of the Executive's employment (a) become
associated, by way of employment or any other type of arrangement,
in any business activities of any other person, firm or corporation
which are in competition with any business activities carried on by
the Employer or (b) become engaged on her own behalf or for her own
account in any such business activity or in the conduct of a
consulting or advisory service for any such business activity
carried on by any other person, firm or corporation. The Employer
and the Executive recognize that the laws and public policies of
the various States of the United States and its territories and the
District of Columbia may differ as to the validity and
enforceability of agreements similar to those contained in this
Section 10. It is the intention of the Employer and the Executive
that the provisions of this Agreement shall be enforced to the
fullest extent permissible under the laws and public policies of
the State of Illinois, but that the unenforceability (or the
modification to conform with such laws or public policies) of any
provision or provisions hereof shall not render unenforceable or
impair the validity of the remainder of this Agreement.
Accordingly, if any provision of this Agreement shall be determined
to be invalid or unenforceable, either in whole or in part, this
Agreement shall be deemed amended to delete or modify, as
necessary, the offending provisions and to alter the balance of
this Agreement in order to render the same valid and enforceable to
the fullest extent permissible as aforesaid.
11. Application to Subsidiaries of Employer. Any employment of
the Executive by any wholly-owned subsidiary of the Employer and
any services performed by the Executive for any such subsidiary
during the term hereof (including, but not limited to, services in
the capacity of an officer or director of any such subsidiary)
shall be deemed to be included within the scope of the Executive's
employment hereunder and, unless separate compensation of the
Executive for the services performed by her for any such subsidiary
shall have been expressly authorized by the Board of Directors of
such subsidiary, the compensation paid to the Executive pursuant to
Section 5. hereof shall be deemed to constitute the total
compensation payable to the Executive for the services performed by
her for both the Employer and any such subsidiary. The terms
"Employer", "Employer's business", "line of business engaged in by
the Employer", and "business activities carried on by the Employer"
as used in Sections 8. and 10. hereof shall include any subsidiary
of the Employer, the business of or lines of business engaged in by
any such subsidiary, and all business activities carried on by any
such subsidiary.
12. Separation Allowance Payments. In the event that the Employer
determines to terminate the Executive's employment for other than
the reasons specified in Sections 4. and 9. of this Agreement
effective as of any date while this Agreement is in effect, the
same shall not constitute a breach of this Agreement; however, in
such event, the Employer shall continue to pay to the Executive on
the regular dates for payment thereof the salary which would accrue
for her under this Agreement if her employment had been continued
until the last day of the then current term of this Agreement. In
addition, if any such termination of employment by the Employer for
a reason not specified in Sections 4. and 9. hereof becomes
effective during the final six (6) months of the then current term
of this Agreement, the Employer shall further pay to the Executive
following the end of such term a separation allowance in a total
amount equal to the amount of salary which would have continued to
accrue for her if her employment hereunder had continued beyond the
end of such term until a total of six (6) months has elapsed from
the effective date of such termination of her employment. Such
separation allowance shall be paid to the Executive in equal
installments on the same dates that the Executive would have
received payments of salary if her employment had continued for
such period of time. It is the intention of the parties that, by
reason of the foregoing provisions, the Executive shall in all
events receive payments for a period of six (6) months beyond the
effective date of termination of her employment by the Employer
during the final six (6) months of the then current term of this
Agreement for any reason not specified in Sections 4. and 9.
hereof, which payments shall consist of the regular salary payments
which would accrue for the Executive until the end of the then
current term of this Agreement plus such number of separation
allowance payments thereafter as shall be required in order to
insure that payments of salary or of amounts equivalent thereto are
received by the Executive for such total period of six (6) months
subsequent to such termination of her employment. The
non-competition provisions set forth in Section 10. of this
Agreement shall also be applicable to the Executive's right to
receive separation allowance payments under this Section 12. and,
effective with respect to any such payment which would otherwise
become due and payable to the Executive on or after the Executive's
commencement of employment in, or other engagement in, any type of
business activity described in Section 10., the Employer shall have
no obligation to make any such separation allowance payments to the
Executive. Notwithstanding anything herein to the contrary, the
Employer's obligation to make Separation Allowance Payments
hereunder shall terminate upon the death of the Executive and such
Separation Allowance Payments as would have otherwise been payable
hereunder except for the death of the Executive shall be forfeited.
l3. Outplacement Agency Services. In the event that the Employer
determines to terminate the Executive's employment for other than
the reasons specified in Sections 4. and 9. of this Agreement
effective as of any date while this Agreement is in effect, the
Employer shall make available to the Executive, at the Employer's
expense, the services of a recognized outplacement agency selected
by the Employer for the purpose of aiding the Executive in seeking
other employment.
l4. Amendments. Any of the terms and provisions of this Agreement
may, from time to time, be altered or amended by mutual agreement
of the parties hereto, provided, however, that any such alteration
or amendment shall be made in writing and shall be signed by both
parties hereto. Any such writing shall be made a part of this
Agreement as of the effective date specified in such writing. Any
increase in salary granted to the Executive by the Employer
pursuant to the salary review provisions of Section 5. of this
Agreement shall not constitute an alteration or amendment of the
Agreement requiring the signatures of both parties hereto, however,
and this Agreement shall be deemed to have been amended with
respect to any such salary increase by the adoption by the Board of
Directors of the Employer of a resolution authorizing such increase
and by the Executive's continuing thereafter to perform the
services required of him hereunder.
l5. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with reference to the employment of
the Executive by the Employer and the compensation to be paid to
the Executive for or with respect to such employment. All
agreements, contracts, understandings or arrangements which may
have been heretofore made or had with reference to the employment
of the Executive by the Employer are hereby wholly abrogated,
discharged and annulled, with the exception of any existing rights
of the Executive under the Employer's Profit Sharing Plan, Pension
Plan, Retirement Benefits Replacement Plan, Executive Supplemental
Benefit Plans, Short-Term Incentive Plan, Long-Term Incentive
Compensation Deferral Option Plan and other employee benefit plans
now maintained by the Employer. The Employer further agrees that
any new or improved benefits provided generally to or made
generally available to the Employer's executive officer employees
will be provided or made available on the same basis to the
Executive.
16. Applicable Law. This Agreement and the construction,
interpretation and enforcement of each of the provisions hereof
shall be governed in all respects by the laws of the State of
Illinois.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
ACE HARDWARE CORPORATION,
a Delaware corporation
EXECUTIVE
By: __________________
______________________
________________________ (Seal)
Attest:
______________________ (SEAL)
Secretary