EXHIBIT 10.20
ANNEX V
FORM OF
FOUNDER'S EMPLOYMENT AGREEMENT
This Founder's Employment Agreement (this "Agreement") is by and between
[______________________], a [_____________] corporation (the "Company") which,
on the Effective Date (as defined below), will be a wholly-owned subsidiary of
Transportation Components, Inc., a Delaware corporation ("TransCom"), and
[_______________] ("Executive"), and is dated [ ], but shall become effective
only on the date of the consummation of the initial public offering of the
common stock of TransCom (the "Effective Date").
R E C I T A L S
A. As of the Effective Date, the Company and the other subsidiaries of
TransCom are or will be engaged primarily in the heavy duty parts and repair
business (the "Business").
B. Executive is employed by the Company in a confidential relationship
pursuant to which Executive has become and will continue to become familiar with
and aware of information as to the Company's and TransCom's customers, specific
manner of doing business (including the processes, techniques and trade secrets
utilized by the Company and TransCom), and future plans with respect thereto,
all of which have been and will be established and maintained at significant
expense to the Company and TransCom. This information includes trade secrets and
constitutes a valuable asset of the Company and of TransCom.
C. The parties hereto desire to agree to the various matters described
herein and to memorialize their agreements as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, it is hereby agreed as follows:
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A G R E E M E N T
1. EMPLOYMENT AND DUTIES.
(a) The Company hereby employs Executive as [______________________] of
the Company. Executive shall have responsibilities, duties and authority
reasonably accorded to, expected of, and consistent with such position and will
report directly to the Board of Directors of the Company (the "Board") or its
designee. Executive hereby accepts this employment upon the terms and conditions
herein contained and agrees to devote substantially all of his business time,
attention and efforts to promote and further the business of the Company.
Executive shall not, during the term of his employment hereunder, be engaged in
any other business activity pursued for gain, profit or other pecuniary
advantage if such activity interferes in any material respect with Executive's
duties and responsibilities hereunder. The foregoing limitations shall not be
construed as prohibiting Executive from making passive personal investments in
such form or manner as will neither require his services in the operation or
affairs of the companies or enterprises in which such investments are made nor
violate the terms of paragraph 3 hereof.
(b) Executive shall faithfully adhere to, execute and fulfill all lawful
policies established from time to time by the Company.
(c) Executive shall only be required to perform Executive's duties in, and
shall not be required to relocate from, the area in which the Company is
headquartered on the date of this Agreement unless otherwise agreed by
Executive.
2. COMPENSATION. For all services rendered by Executive, the Company shall
compensate Executive as follows:
(a) BASE SALARY. Commencing on the Effective Date or, at the option of the
Company, the first day of the month during which the Effective Date occurs or
the first day of the month immediately following the date on which the Effective
Date occurs, the base salary payable to Executive shall be $ _______ per year,
payable on a regular basis in accordance with the Company's standard payroll
procedures but not less frequently than monthly. On at least an annual basis,
the Board will review Executive's performance and may make increases, but not
decreases, to such base salary if, in its discretion, any such increase is
warranted.
(b) EXECUTIVE PERQUISITES, BENEFITS AND OTHER COMPENSATION. Executive
shall be entitled to receive additional benefits and compensation from the
Company in such form and to such extent as specified below:
(i) Coverage, subject to contributions required of executives of the
Company generally, for Executive and his dependent family members under health,
hospitalization,
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disability, dental, life and other insurance plans that the Company may have in
effect from time to time for the benefit of its executives; provided, however,
that the Company shall not modify the plans in effect on the date hereof in a
manner that would decrease the benefits afforded thereby to the Executive in any
material respect unless (a) the Executive consents to such changes, or (b) such
changes result in plans that provide benefits to the Executive that are
substantially similar to those afforded to similarly situated executives
employed by the other subsidiaries of TransCom.
(ii) Reimbursement for all business travel and other out-of-pocket
expenses reasonably incurred by Executive in the performance of his services
pursuant to this Agreement. All reimbursable expenses shall be appropriately
documented in reasonable detail by Executive upon submission of any request for
reimbursement, and in a format and manner consistent with the Company's expense
reporting policy.
(iii) The Company shall provide Executive with such other executive
perquisites as may be deemed appropriate for Executive by the Board, and
Executive shall be entitled to participate in all other Company-wide employee
benefits as are available from time to time.
3. NON-COMPETITION AGREEMENT.
(a) Executive shall not, during the period of his employment by or with
the Company, and for a period of two (2) years immediately following the
termination of his employment under this Agreement, for any reason whatsoever,
except as provided herein, directly or indirectly, for himself or on behalf of
or in conjunction with any other person, company, partnership, corporation or
business of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner, joint
venturer, or in a managerial capacity, whether as an employee, independent
contractor, consultant or advisor, or as a sales representative, in any business
in direct competition with the Company or TransCom or any of their respective
subsidiaries, within 100 miles of where the Company or any of TransCom's other
subsidiaries has a physical location (the "Territory");
(ii) call upon any person who is, at that time, an employee of the Company
or TransCom (including the respective subsidiaries thereof) in a sales or
managerial capacity for the purpose or with the intent of enticing such employee
away from or out of the employ of the Company or TransCom (including the
respective subsidiaries thereof);
(iii) call upon any person or entity which is, at that time, or which has
been, within one (1) year prior to that time, a customer of the Company or
TransCom (including the
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respective subsidiaries thereof) for the purpose of soliciting or selling
products or services in direct competition with the Company or TransCom;
(iv) call upon any prospective acquisition candidate, on Executive's own
behalf or on behalf of any competitor, which candidate was, to Executive's
actual knowledge, either called upon by the Company or TransCom (including the
respective subsidiaries thereof) or for which the Company or TransCom made an
acquisition analysis, for the purpose of acquiring such entity or all or
substantially all of such entity's assets.
Notwithstanding the above, the foregoing covenant shall not be deemed to
prohibit Executive from (i) participating in the activities as and to the extent
described on Schedule 13.1 to the Agreement and Plan of Organization dated as of
April __, 1998 to which the Company, TransCom and the Executive are parties, or
(ii) acquiring as a passive investment not more than two percent (2%) of the
capital stock of a competing business the stock of which is traded on a national
securities exchange or on an over-the-counter or similar market.
(b) Because of the difficulty of measuring economic losses to the Company
and TransCom as a result of a breach of the foregoing covenant, and because of
the immediate and irreparable damage that could be caused to the Company and
TransCom for which they would have no other adequate remedy, Executive agrees
that the foregoing covenant may be enforced by TransCom or the Company in the
event of breach or threatened breach by Executive, by injunctions, restraining
orders and other appropriate equitable relief.
(c) It is agreed by the parties that the foregoing covenants in this
paragraph 3 impose a reasonable restraint on Executive in light of the
activities and business of the Company or TransCom, as the case may be
(including TransCom's other subsidiaries) on the Effective Date of this
Agreement and the current plans of TransCom (including TransCom's other
subsidiaries); but it is also the intent of the Company and Executive that such
covenants be construed and enforced in accordance with the changing activities,
business and locations of the Company and TransCom, as the case may be
(including TransCom's other subsidiaries) throughout the term of these
covenants, whether before or after the date of termination of the employment of
Executive. For example, if, during the term of these covenants, the Company or
TransCom, as the case may be (including TransCom's other subsidiaries) engage in
new and different activities related to the Business, enter a new business
related to the Business or establish new locations for their current activities
or businesses in addition to or other than the activities or businesses
enumerated under the Recitals above or the locations currently established
therefor, then Executive will be precluded from soliciting the customers or
employees of such new activities or businesses or from such new locations and
from directly competing with such new businesses within 100 miles of all
then-established operating location(s) through the term of these covenants.
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It is further agreed by the parties hereto that, in the event that
Executive shall cease to be employed hereunder, and shall enter into a business
or pursue other activities not in competition with the Company or TransCom
(including TransCom's other subsidiaries), or similar activities or business in
locations the operation of which, under such circumstances, does not violate
clause (i) of paragraph 3(a), Executive shall not be chargeable with a violation
of this paragraph 3 if the Company or TransCom (including TransCom's other
subsidiaries) shall thereafter enter the same, similar or a competitive (i)
business, (ii) course of activities or (iii) location, as applicable.
(d) The covenants in this paragraph 3 are severable and separate, and the
unenforceability of any specific covenant shall not affect the provisions of any
other covenant. Moreover, in the event any court of competent jurisdiction shall
determine that the scope, time or territorial restrictions set forth herein are
unreasonable, then it is the intention of the parties that such restrictions be
enforced to the fullest extent which the court deems reasonable, and this
Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an
agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Executive against the Company or
TransCom, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by TransCom or the Company of such
covenants. It is specifically agreed that the period of two (2) years following
termination of employment stated at the beginning of this paragraph 3, during
which the agreements and covenants of Executive made in this paragraph 3 shall
be effective, shall be computed by excluding from such computation any time
during which Executive is in violation of any provision of this paragraph 3.
4. TERM; TERMINATION; RIGHTS ON TERMINATION.
(a) The term of this Agreement shall begin on the Effective Date and
continue for five (5) years (the "Term"), unless terminated sooner as herein
provided, and shall continue thereafter on a year-to-year basis on the same
terms and conditions contained herein in effect as of the time of renewal. This
Agreement and Executive's employment may be terminated in any one of the
followings ways:
(i) TERMINATION AS A RESULT OF EMPLOYEE'S DEATH. The death of
Executive shall immediately terminate this Agreement with no severance
compensation due to Executive's estate.
(ii) TERMINATION ON ACCOUNT OF DISABILITY. If, as a result of
incapacity due to physical or mental illness or injury, Executive shall
have been absent from his full-time duties hereunder for six (6)
consecutive months, then thirty (30) days after receiving written notice
(which notice may occur before or after the end of such six (6) month
period, but which shall not be effective earlier than the last day of such
six (6) month period), the
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Company may terminate Executive's employment hereunder provided Executive
is unable to resume his full-time duties with or without reasonable
accommodation at the conclusion of such notice period. Also, Executive may
terminate his employment hereunder if his health should become impaired to
an extent that makes the continued performance of his duties hereunder
hazardous to his physical or mental health or his life, provided that
Executive shall have furnished the Company with a written statement from a
qualified doctor to such effect and provided, further, that, at the
Company's request made within thirty (30) days of the date of such written
statement, Executive shall submit to an examination by a doctor selected
by the Company who is reasonably acceptable to Executive or Executive's
doctor and such doctor shall have concurred in the conclusion of
Executive's doctor. In the event this Agreement is terminated as a result
of Executive's disability, Executive shall receive from the Company, in a
lump-sum payment due within thirty (30) days of the effective date of
termination, the base salary at the rate then in effect for whatever time
period is remaining under the Initial Term (as defined below) or for one
(1) year, whichever amount is greater; provided, however, that any such
payments shall be reduced by the amount of any disability insurance
payments payable to the Executive as a result of such disability to the
extent such disability insurance is provided by the Company or TransCom or
any of their affiliates.
(iii) TERMINATION BY THE COMPANY FOR CAUSE. The Company may
terminate this Agreement immediately for "Cause", which shall be: (1)
Executive's willful and material breach of this Agreement, which breach
either cannot be cured or, if capable of being cured, is not cured within
ten (10) days after receipt of written notice of the need to cure; (2)
Executive's gross negligence in the performance or intentional
nonperformance (continuing for ten (10) days after receipt of written
notice of need to cure) of any of Executive's material duties and
responsibilities hereunder; (3) Executive's willful dishonesty, fraud or
misconduct with respect to the business or affairs of the Company or
TransCom; (4) Executive's conviction of a felony crime; or (5) Executive's
confirmed positive illegal drug test result. In the event of a termination
for Cause, Executive shall have no right to any severance compensation.
(iv) TERMINATION WITHOUT CAUSE OR FOR GOOD REASON. At any time after
commencement of employment, the Company may terminate Executive's
employment hereunder without Cause, and Executive may terminate his
employment hereunder for Good Reason (as defined below), in either case
effective thirty (30) days after written notice. If Executive is
terminated by the Company without Cause or if Executive terminates
Executive's employment hereunder for Good Reason during the first three
(3) years of the Term (the "Initial Term"), Executive shall receive from
the Company, in a lump-sum payment due on the effective date of
termination, the base salary at the rate then in effect for whatever time
period is remaining under the Initial Term of this Agreement or for one
(1) year, whichever amount is greater. If Executive is terminated by the
Company without Cause or should Executive terminate for Good Reason after
the Initial Term, Executive shall
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receive from the Company, in a lump-sum payment due on the effective date
of termination, one year's salary at the base salary rate then in effect.
Further, any termination without Cause by the Company or by the Executive
for Good Reason shall operate to shorten the period set forth in paragraph
3(a) and during which the terms of paragraph 3 apply to one (1) year from
the date of termination of employment. If Executive resigns or otherwise
terminates his employment hereunder without Good Reason, Executive shall
receive no severance compensation, and the provisions of paragraph 3
hereof shall apply. If Executive is terminated by the Company without
Cause or if Executive terminates his employment hereunder for Good Reason,
(1) the Company shall make the insurance premium payments contemplated by
COBRA for a period of 12 months after such termination, and (2) the
Executive shall be entitled to receive a pro rated portion of any annual
bonus to which the Executive would have been entitled for the year during
which the termination occurred had the Executive not been terminated, but
only if the Executive has completed at least nine months during such year.
(b) DEFINITION OF "GOOD REASON". Executive shall have "Good Reason" to
terminate this Agreement and his employment hereunder if, without Executive's
consent, (i) Executive is demoted by means of a reduction in authority,
responsibilities, duties or title to a position of materially less stature or
importance within the Company than the position described in Section 1 hereof,
or (ii) the Company breaches this Agreement in any material respect and fails to
cure such breach within ten days after Executive delivers written notice and a
written description of such breach to the Company, which notice shall
specifically refer to this section of this Agreement.
(c) CHANGE IN CONTROL OF TRANSCOM. In the event of a "Change in Control of
TransCom" (as defined below) during the Initial Term, paragraph 11 below shall
apply.
(d) EFFECT OF TERMINATION. Upon termination of this Agreement for any
reason provided above, Executive shall be entitled to receive all compensation
earned and all benefits and reimbursements due through the effective date of
termination. Additional compensation subsequent to termination, if any, will be
due and payable to Executive only to the extent and in the manner expressly
provided herein. All other rights and obligations of the Company and Executive
under this Agreement shall cease as of the effective date of termination, except
that the Company's obligations under paragraph 8 herein and Executive's
obligations under paragraphs 3, 5, 6, 7 and 9 herein shall survive such
termination in accordance with their terms.
(e) BREACH BY COMPANY. If termination of Executive's employment arises out
of the Company's failure to pay Executive on a timely basis the amounts to which
Executive is entitled under this Agreement or as a result of any other breach of
this Agreement by the Company, as determined by a court of competent
jurisdiction or pursuant to the provisions of paragraph 15 below, the Company
shall pay all amounts and damages to which Executive may be entitled as a result
of such breach, including interest thereon and all reasonable legal fees and
expenses and other costs
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incurred by Executive to enforce his rights hereunder. Further, none of the
provisions of paragraph 3 shall apply in the event this Agreement is terminated
as a result of a breach by the Company.
5. RETURN OF COMPANY PROPERTY. All records, designs, patents, business
plans, financial statements, manuals, memoranda, lists and other property
delivered to or compiled by Executive by or on behalf of the Company, TransCom
or their representatives, vendors or customers which pertain to the business of
the Company or TransCom shall be and remain the property of the Company or
TransCom, as the case may be, and be subject at all times to their discretion
and control. Likewise, all correspondence, reports, records, charts, advertising
materials and other similar data pertaining to the business, activities or
future plans of the Company or TransCom which is collected by Executive shall be
delivered promptly to the Company without request by it upon termination of
Executive's employment.
6. INVENTIONS. Executive shall disclose promptly to the Company any and
all significant conceptions and ideas for inventions, improvements and valuable
discoveries, whether patentable or not, which are conceived or made by
Executive, solely or jointly with another, during the period of employment or
within one (1) year thereafter, and which are directly related to the business
or activities of the Company and which Executive conceives as a result of his
employment by the Company. Executive hereby assigns and agrees to assign all his
interests therein to the Company or its nominee. Whenever requested to do so by
the Company, Executive shall execute any and all applications, assignments or
other instruments that the Company shall deem necessary to apply for and obtain
Letters Patent of the United States or any foreign country or to otherwise
protect the Company's interest therein.
7. TRADE SECRETS. Executive agrees that Executive will not, during or
after the Term of this Agreement with the Company, disclose the terms of the
Company's or TransCom's relationships or agreements with their respective
vendors or customers or any other significant or material trade secret of the
Company or TransCom, whether in existence or proposed, to any person, firm,
partnership, corporation or business for any reason or purpose whatsoever,
except and only to the extent required by law or legal process following notice
to the Company and TransCom.
8. INDEMNIFICATION. In the event Executive is made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by the Company
or TransCom against Executive), by reason of the fact that Executive is or was
performing services under this Agreement, then the Company shall indemnify
Executive against all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, as actually and reasonably incurred by Executive in
connection therewith to the maximum extent permitted by applicable law. The
advancement of expenses shall be mandatory to the extent permitted by applicable
law. In the event that both Executive and the Company are made a party to the
same third-party action, complaint, suit or proceeding, the Company agrees to
engage counsel, and Executive agrees to use the same counsel, provided that if
counsel selected by the Company
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shall have a conflict of interest that prevents such counsel from representing
Executive, Executive may engage separate counsel and the Company shall pay all
reasonable attorneys' fees of such separate counsel. The Company shall not be
required to pay the fees of more than one law firm except as described in the
preceding sentence, and shall not be required to pay the fees of more than two
law firms under any circumstances. Executive cannot be held liable to the
Company or TransCom for errors or omissions made in good faith or where
Executive has not exhibited gross, willful, and wanton negligence in connection
with such conduct, error or omission.
9. NO PRIOR AGREEMENTS. Executive hereby represents and warrants to the
Company that the execution of this Agreement by Executive and his employment by
the Company and the performance of his duties hereunder will not violate or be a
breach of any agreement with a former employer, client or any other person or
entity. Executive hereby indemnifies the Company against any and all liability,
expenses and other costs and amounts incurred by the Company, including, but not
limited to, attorneys' fees and expenses of investigation, as a result of any
claim by any third party that such third party may now have or may hereafter
come to have against the Company based upon or arising out of any
non-competition agreement, invention or secrecy agreement between Executive and
such third party which was in existence as of the date of this Agreement.
10. ASSIGNMENT; BINDING EFFECT. Executive understands that the Company has
selected Executive for employment by it on the basis of Executive's personal
qualifications, experience and skills. Executive agrees, therefore, that
Executive cannot assign all or any portion of Executive's performance under this
Agreement. Subject to the preceding two (2) sentences and the express provisions
of paragraph 12 below, this Agreement shall be binding upon, inure to the
benefit of and be enforceable by the parties hereto and their respective heirs,
legal representatives, successors and assigns.
11. CHANGE IN CONTROL.
(a) Executive understands and acknowledges that TransCom and/or the
Company may be merged or consolidated with or into another entity and that such
entity shall automatically succeed to the rights and obligations of TransCom
and/or the Company hereunder or that the Company may undergo another type of
Change in Control. In the event a Change in Control is initiated prior to the
end of the Initial Term, then the provisions of this paragraph 11 shall be
applicable.
(b) In the event of a pending Change in Control wherein TransCom and/or
the Company and Executive have not received written notice at least five (5)
business days prior to the anticipated closing date of the transaction giving
rise to the Change in Control from the successor to all or a substantial portion
of TransCom's and/or the Company's business and/or assets that such successor is
willing as of the closing to assume and agree to perform TransCom's and/or the
Company's obligations under this Agreement in the same manner and to the same
extent that TransCom and/or
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the Company is hereby required to perform, then Executive may elect to terminate
his employment and shall be entitled to receive in one lump sum on the effective
date of such termination, an amount equal to three times his annual base salary
then in effect, and the non-competition provisions of paragraph 3 shall apply
for a period of one (1) year from the effective date of termination.
(c) In any Change in Control situation, if Executive is terminated by the
Company without Cause at any time during the twelve (12) months immediately
following the closing of the transaction giving rise to the Change in Control,
or Executive terminates for Good Reason at any time during the twelve (12)
months immediately following the closing of the transaction giving rise to the
Change in Control, Executive shall be entitled to receive in one lump sum on the
effective date of such termination an amount equal to three (3) times his annual
base salary then in effect, and the non-competition provisions of paragraph 3
shall apply for a period of one (1) year from the effective date of termination.
(d) In the event of a Change of Control, Executive will be given
sufficient time and opportunity to elect whether to exercise all or any of
Executive's vested options to purchase TransCom common stock, such that
Executive may convert the options to shares of TransCom common stock at or prior
to the closing of the transaction giving rise to the Change in Control, if
Executive so desires.
(e) A "Change in Control" shall be deemed to have occurred if:
(i) any person, other than TransCom or an employee benefit plan of
TransCom, acquires directly or indirectly the beneficial ownership (as defined
in Section 13(d) of the Securities Exchange Act of 1934, as amended) of any
voting security of the Company and immediately after such acquisition such
person is, directly or indirectly, the Beneficial Owner of voting securities
representing 50% or more of the total voting power of all of the
then-outstanding voting securities of the Company;
(ii) the following individuals no longer constitute a majority of the
members of the Board of Directors of TransCom: (A) the individuals who, as of
the closing date of TransCom's initial public offering, constitute the Board of
Directors of TransCom (the "Original Directors"); (B) the individuals who
thereafter are elected to the Board of Directors of TransCom and whose election,
or nomination for election, to the Board of Directors of TransCom was approved
by a vote of at least two-thirds (2/3) of the Original Directors then still in
office (such directors becoming "Additional Original Directors" immediately
following their election); and (C) the individuals who are elected to the Board
of Directors of TransCom and whose election, or nomination for election, to the
Board of Directors of TransCom was approved by a vote of at least two-thirds
(2/3) of the Original Directors and Additional Original Directors then still in
office (such directors also becoming "Additional Original Directors" immediately
following their election);
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(iii) the stockholders of TransCom shall approve a merger, consolidation,
recapitalization, or reorganization of TransCom, a reverse stock split of
outstanding voting securities, or consummation of any such transaction if
stockholder approval is not obtained, other than any such transaction which
would result in at least 75% of the total voting power represented by the voting
securities of the surviving entity outstanding immediately after such
transaction being Beneficially Owned by at least 75% of the holders of
outstanding voting securities of TransCom immediately prior to the transaction,
with the voting power of each such continuing holder relative to other such
continuing holders not substantially altered in the transaction;
(iv) the stockholders of TransCom shall approve a plan of complete
liquidation of TransCom or an agreement for the sale or disposition by TransCom
of 50% or more of the total assets of TransCom; or
(v) TransCom shall approve a plan of complete liquidation of the Company
or an agreement for the sale or disposition by the Company of 50% or more of the
total assets of the Company.
(f) If it shall be determined that any payment or distribution by TransCom
or the Company or any other person to or for the benefit of the Executive (a
"Payment") would be subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Excise Tax"), as a result of the
termination of employment of the Executive in the event of a Change in Control,
then the Company, TransCom or the successor to TransCom shall pay an additional
payment (a "Gross-Up Payment") in an amount such that after payment by the
Executive of all taxes, including, without limitation, any income taxes and
Excise Tax imposed on the Gross-Up Payment, the Executive retains an amount of
the Gross-Up Payment equal to the Excise Tax imposed on the Payments. Such
amount will be due and payable by the Company, TransCom or the successor to
TransCom within ten (10) days after the Executive delivers written request for
reimbursement accompanied by a copy of the Executive's tax return(s) showing the
Excise Tax actually incurred by the Executive.
12. COMPLETE AGREEMENT. This Agreement sets forth the entire agreement of
the parties hereto relating to the subject matter hereof and supersedes any
other employment agreements or understandings, written or oral, between the
Company and Executive. This Agreement is not a promise of future employment.
Executive has no oral representations, understandings or agreements with the
Company or any of its officers, directors or representatives covering the same
subject matter as this Agreement. This written Agreement is the final, complete
and exclusive statement and expression of the agreement between the Company and
Executive and of all the terms of this Agreement, and it cannot be varied,
contradicted or supplemented by evidence of any prior or contemporaneous oral or
written
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agreements. This written Agreement may not be later modified except by a further
writing signed by a duly authorized officer of the Company and Executive, and no
term of this Agreement may be waived except by writing signed by the party
waiving the benefit of such term.
13. NOTICE. Whenever any notice is required hereunder, it shall be given
in writing addressed as follows:
To the Company:
__________________________________________
__________________________________________
__________________________________________
with a copy to: Paul E. Pryzant
General Counsel
Transportation Components, Inc.
Three Riverway, Suite 630
Houston, Texas 77056
Telephone: 713/965-0331
Fax: 713/965-0579
To Executive:
__________________________________________
__________________________________________
__________________________________________
Notice shall be deemed given and effective on the earlier of three (3) days
after the deposit in the U.S. mail of a writing addressed as above and sent
first class mail, certified, return receipt requested, or when actually received
by means of hand delivery or delivery by Federal Express or other courier
service. Either party may change the address for notice by notifying the other
party of such change in accordance with this paragraph 13.
14. SEVERABILITY; HEADINGS. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative. The
paragraph headings herein are for reference purposes only and are not intended
in any way to describe, interpret, define or limit the extent or intent of the
Agreement or of any part hereof.
15. ARBITRATION. With the exception of the provisions hereof providing for
enforcement by means of equitable remedies, any unresolved dispute or
controversy arising under or in connection with this Agreement shall be settled
exclusively by arbitration, conducted before a panel of three (3) arbitrators in
Houston, Texas, in accordance with the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association ("AAA") then in
effect, provided
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that the parties may agree to use arbitrators other than those provided by the
AAA. The arbitrators shall not have the authority to add to, detract from, or
modify any provision hereof nor to award punitive damages to any injured party.
A decision by a majority of the arbitration panel shall be final and binding.
Judgment may be entered on the arbitrators' award in any court having
jurisdiction. The direct expenses of any arbitration proceeding shall be borne
by the Company; however, each party shall be responsible for payment of its
counsel fees and related expenses. The arbitrator shall, however, have the right
and discretion to award counsel fees and expenses (including reasonable travel
expenses) to either party as part of the arbitrator's final judgment.
16. GOVERNING LAW. This Agreement shall in all respects be construed
according to the laws of the State of Texas.
17. COUNTERPARTS. This Agreement may be executed simultaneously in two (2)
or more counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written, but effective as of the Effective Date.
[ ]
By:_________________________________
[ ]
President
EXECUTIVE
______________________________________
[Name]
TRANSPORTATION COMPONENTS, INC.
By:____________________________________
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