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EXHIBIT 10.65
EXECUTION COPY
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EMPLOYMENT AGREEMENT
AGREEMENT made by and between MONRO MUFFLER BRAKE, INC., ▇▇▇
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▇▇▇▇▇▇▇▇▇, residing at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Employee").
1. EMPLOYMENT. The Company hereby employs Employee and
Employee hereby accepts employment with the Company during the Term (as
hereinafter defined) upon the terms and conditions hereinafter set forth. During
the Interim Term (as hereinafter defined). Employee shall serve as the President
and Chief Executive Officer of the Company responsible for the overall business
and strategic planning, management and operations of the Company. Employee shall
perform the customary duties of such positions and such other commensurate
duties as may be assigned from time to time by the Company's Board of Directors,
which duties shall be performed at the Company's headquarters, subject to
reasonable travel requirements.
During the Consulting Term (as hereinafter defined), Employee
shall provide consulting services to the Company, as may be reasonably requested
by its Board of Directors, Chairman, President or Chief Executive Officer. Such
services shall not require more than two business day's work per month without
Employee's consent and may be performed from Employee's home or, subject to the
reimbursement of reasonable travel expenses and on reasonable notice, at such
other location as the Company may request.
Employee agrees to abide by the reasonable rules, regulations,
instructions, personnel practices, employment manuals and policies of the
Company, as they may exist or be modified from time to time by the Company.
Employee during the Interim Term shall devote his
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entire business time and attention and best efforts to the business of the
Company. Employee shall perform his duties in a diligent, effective and loyal
manner. Under no circumstances shall Employee take any action contrary to the
best interests of the Company.
2. COMPENSATION. Employee shall be compensated by the Company
for all services to be rendered pursuant to this Agreement as follows:
(a) The Company shall pay Employee a salary (the "Initial
Salary") at the rate of $35,000 per month during the Interim Term, and $2,000
per month during the Consulting Term (the "Consulting Salary"), in each case
payable in accordance with the normal payroll practices of the Company
applicable to its executive officers.
(b) The Company also is granting Employee 90,000 stock options
of the Company under the 1989 Employee's Stock Option Plan, as amended, in
accordance with the form of grant letter attached hereto as Exhibit A.
3. BENEFITS. Employee shall also be entitled to receive the
following benefits during the Interim Term:
(a) Paid holidays as customarily provided to the Company's
other comparable employees.
(b) Life insurance as was heretofore provided to Employee
under the Employment Agreement between Employee and Company, dated February 18,
1995 (the "Prior Agreement").
(c) Medical and dental insurance coverage as provided by the
Company to its executive employees generally.
(d) The automobile currently used by Employee in rendering
services to the Company pursuant to the Prior Agreement shall be transferred to
Employee, and while in
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Rochester, New York an additional automobile shall be available for his use
together with reimbursement for all gas, maintenance, insurance and repairs
required by reason of his use of such vehicle.
(e) Coverage in accordance with their terms of any pension,
profit-sharing or retirement plans now existing or hereafter established by the
Company and made generally available for executive employees.
(f) Reimbursement for all reasonable expenses incurred by
Employee during the Interim Term for advancing the Company's business in
accordance with Company policies upon Employee's presentation, from time to
time, of an itemized account and evidence and explanation reasonably
satisfactory to the Company of such expenses including, without limitation, (i)
reimbursement of travel expenses between Employee's home and the Company's
headquarters and (ii) reimbursement for the cost of maintaining an apartment
convenient to the Company's headquarters.
(g) Such other benefits as the Company may, from time to time,
provide generally to its other executive level officers.
4. TERM. The term of the Agreement (the "Term") shall commence
on the date hereof and continue until the fifth anniversary of the date hereof.
The period of Employee's full-time services hereunder (the "Interim Term") shall
commence on the date hereof and continue until terminated by the Company;
PROVIDED, HOWEVER, that (i) if the Interim Term is terminated by the Company
within the first three months of Employee's employment hereunder, Employee shall
be entitled to his Interim Salary through the end of such three month period
payable in accordance with normal payroll practices of the Company and any
unvested options granted to Employee pursuant to Section 2(b) shall fully vest;
and (ii) the Company may not
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extend the Interim Term beyond six months from the date hereof without the
consent of Employee. The balance of the Term following the Interim Term is the
Consulting Term (the "Consulting Term").
5. (a) NON-DISCLOSURE. Employee will not, during the period of
Employee's employment with the Company or at any time thereafter, regardless of
the reason for the cessation of Employee's employment: (i) use any Confidential
Information for Employee's own benefit or for the benefit of any person or
entity other than the Company; (ii) disclose to any person or entity any
Confidential Information; or (iii) remove from the Company's premises or make
copies of any Confidential Information, in any form; except, in each case, as
may be required within the scope of Employee's duties during Employee's
employment by the Company.
Upon termination of Employee's employment, or at any such time
as the Company may request, Employee will deliver to the Company all copies in
Employee's possession of any Confidential Information, in any form. Employee
will not at any time assert any rights as against the Company in or with respect
to any Confidential Information.
For purposes of this Agreement, "Confidential Information"
means any and all technical, research, operational, manufacturing, marketing,
sales and financial information, customer lists and trade secrets of the Company
or of any vendor, supplier, distributor or customer of the Company, regardless
of how acquired or developed by the Company or any such vendor, supplier,
distributor or customer, concerning any of their respective businesses.
Confidential Information does not include information, knowledge or data which
Employee can prove was in Employee's possession prior to the commencement of
Employee's employment with the Company or information, knowledge or data which
was or is in the public domain by reason other than the wrongful acts of
Employee.
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(b) NON-COMPETITION. Employee will not, during the period of
Employee's employment with the Company, and for a period of two years after the
termination of Employee's employment with the Company for any reason, directly
or indirectly, on Employee's behalf or on behalf of any other person or entity,
in any way, whether as an individual proprietor, partner, stockholder, officer,
employee, consultant, director, joint venturer, investor, lender (other than as
an employee of a bank or other financial institution) or in any other capacity
with any entity materially engaged in the business of the Company, compete
within the territory served, or contemplated to be entered, by Company on the
date of such termination with the business of the Company. Nothing contained
herein shall be construed as preventing Employee from owning beneficially or of
record not more than five percent (5%) of the outstanding equity security of any
entity whose equity securities are registered under the Securities Act of 1933,
as amended, or are listed for trading on any recognizable United States or
foreign stock exchange or market. The business of the Company shall be defined
to include the undercar service and repair of automobile and light truck brake,
exhaust and suspension systems, and related activities.
(c) NON-SOLICITATION OF EMPLOYEES. Employee will not, during
the period of Employee's employment with the Company, and for a period of two
years after the termination of Employee's employment with the Company for any
reason, directly or indirectly, recruit, solicit or otherwise induce or attempt
to induce any employees of the Company to leave the employment of the Company,
nor hire any such employee at any enterprise with which employee is then
affiliated.
(d) ENFORCEABILITY OF PROVISIONS. If any restriction set forth
in this Paragraph 5 is found by any court of competent jurisdiction to be
unenforceable because it extends for too long a period of time or over too great
a range of activities or in too broad a geographic area, it
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shall be interpreted to extend only over the maximum period of time, range of
activities or geographic area as to which it may be enforceable, it being
understood and agreed that by the execution of this Agreement, the parties
hereto regard the restrictions herein as reasonable and compatible with their
respective rights.
6. GENERAL TERMS.
(a) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, their personal representatives,
successors and assigns.
(b) ASSIGNMENT. This Agreement may not be assigned, in whole
or in part, by any party hereto without the prior written consent of the other
party.
(c) ENTIRE AGREEMENT; PRIOR AGREEMENT. This Agreement contains
the entire understanding between or among the parties hereto and supersedes any
prior understanding, memoranda or other written or oral agreements between or
among any of them respecting the within subject matter. There are no
representations, agreements, arrangements or understandings, oral or written,
between or among any of the parties relating to the subject matter of this
Agreement which are not fully expressed herein.
The Prior Agreement is hereby terminated.
(d) MODIFICATIONS; WAIVER. No modification or waiver of this
Agreement or any part hereof shall be effective unless in writing and signed by
the party or parties sought to be charged therewith. No waiver of any breach or
condition of this Agreement shall be deemed to be a waiver of any other or
subsequent breach or condition, whether of like or different nature. No waiver
of any breach or condition of this Agreement by or with respect to any party
hereto shall be deemed to be a waiver of the same breach or condition with
respect to any other party hereto. No course of dealing between or among any of
the parties hereto will be deemed
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effective to modify, amend or discharge any part of this Agreement or the rights
or obligations of any party hereunder.
(e) NO THIRD PARTY BENEFICIARY. None of the provisions of this
Agreement shall be for the benefit of, or enforceable by, any person or entity
not a party hereto.
(f) PARTIAL INVALIDITY. In addition to the provisions of
Paragraph 5(d) hereof, if any provision of this Agreement shall be held invalid
or unenforceable by competent authority, such provision shall be construed so as
to be limited or reduced to be enforceable to the maximum extent compatible with
the law as it shall then appear. The total invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof and this Agreement shall be construed in all respects as if such invalid
or unenforceable provision were omitted.
(g) NOTICES. Any notice or other communication required or
permitted under this Agreement shall be in writing and shall be deemed to have
been duly given (i) upon hand delivery, or (ii) on the third day following
delivery to the U.S. Postal Service as certified or registered mail, return
receipt requested and postage prepaid, or (iii) on the first day following
delivery to a nationally recognized United States overnight courier service, fee
prepaid, return receipt or other confirmation of delivery requested, or (iv)
when telecopied or sent by facsimile transmission if an additional notice is
also given under (i), (ii) or (iii) above within three days thereafter. Any such
notice or communication shall be delivered or directed to a party at its address
set forth above or at such other address as may be designated by a party in a
notice given to all other parties hereto in accordance with the provisions of
this paragraph.
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(h) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York pertaining to
contracts made and to be wholly performed within such state, without taking into
account conflicts of laws principles.
(i) JURISDICTION AND VENUE. In the event that any legal
proceedings are commenced in any court with respect to any matter arising under
this Agreement, the parties hereto specifically consent and agree that:
(i) the courts of the State of New York and/or the
United States Federal Courts located in the State of New York
shall have jurisdiction over each of the parties hereto and
over the subject matter of any such proceedings; and
(ii) the venue of any such action shall be Monroe
County, New York and/or the United States District Court for
the Western District of New York.
(j) INJUNCTIVE RELIEF. In the event of a breach or threatened
breach of any of the terms of this Agreement, the Company shall be entitled to
an injunction restraining Employee from committing any breach of this Agreement
without showing or proving any actual damages and without diminishing any other
right or remedy which the Company may have at law or in equity to enforce the
provisions of this Agreement. Employee waives any right he may have to require
the Company to post a bond or other security with respect to obtaining or
continuing any injunction or temporary restraining order, releases the Company
and its officers and directors from and waives any claim for damages against
them which Employee may have with respect to the Company's obtaining any
injunction or restraining order pursuant to this Agreement.
(k) SURVIVAL. The provisions of Paragraph 5 shall survive the
term of this Agreement as provided therein, and the provisions of this Paragraph
6 shall survive the term of this Agreement.
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(l) HEADINGS. The headings contained in this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
(m) FAIR MEANING. This Agreement shall be construed according
to its fair meaning, the language used shall be deemed the language chosen by
the parties hereto to express their mutual intent, and no presumption or rule of
strict construction will be applied against any party hereto.
(n) GENDER. Whenever the context may require, any pronoun used
herein shall include the corresponding masculine, feminine or neuter forms and
the singular of nouns, pronouns and verbs shall include the plural and vice
versa.
(o) COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of said
counterparts together shall constitute but one and the same instrument.
(p) REMEDIES. All rights and remedies of the Company or
Employee, whether provided for herein or by operation of law, are cumulative and
may be exercised singularly or concurrently, and the exercise of any such remedy
shall not be deemed an election of remedies so as to preclude the election of
any other remedy.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of February __, 1998
COMPANY:
MONRO MUFFLER BRAKE, INC.
By:
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Title:
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EMPLOYEE:
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MONRO MUFFLER BRAKE, INC.
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February 18, 1998
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Re: NOTICE OF GRANT OF STOCK OPTION
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Dear Employee:
I am pleased to notify you that the Board of Directors of
Monro Muffler Brake, Inc. ("Monro") has granted you a stock option pursuant to
the 1989 Monro Muffler Brake Employees' Incentive Stock Option Plan, as amended
(the "Plan").
The option granted to you is to purchase 90,000 shares of the
$.01 par value common stock of Monro at the price of $14.00 per share. The date
of grant is January 29, 1998 and the Board of Directors has determined in good
faith that, on that date, the fair market value of Monro's $.01 par value common
stock was $14.00 per share. This option shall be exercisable by you pursuant to
the following schedule:
NUMBER OF SHARES EXERCISE DATE
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22,500 Immediate
33,750 March 31, 1999
33,750 March 31, 2000
A copy of the Plan governing the option granted to you is
enclosed. Please be sure to read all of its provisions.
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The option is, in all respects, limited and conditioned as
provided in the Plan, including but not limited to the following:
(a) The option may be exercised by you, but only until the
earlier of the date which is three months after the termination date of your
employment or the date which is ten years from the date of this letter.
(b) You may not transfer the option other than by your will or
by the laws of descent and distribution.
(c) The option is exercisable, during your lifetime, only by
you.
(d) Monro Muffler Brake, Inc. retains the right to repurchase
the shares at their fair market value after the expiration of a certain period
of time as described in the Plan.
(e) Exercisability of options not then vested shall (i)
immediately occur in the event specified in Section 4 of the Employment
Agreement dated the date hereof between you and the Company, (ii) immediately
occur in the event of the death of the Employee or (iii) immediately occur prior
to a Change of Control of the Company, as defined in the Plan.
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At the time or times when you desire to exercise the option in
whole or in part, please refer to the provisions of the Plan dealing with the
formalities of exercise and see the Secretary of the company with respect to the
exercise. I am personally pleased that the Board has decided to grant you this
option.
Sincerely,
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