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EXHIBIT 10.68
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT, dated as of December 1, 2000,
between Monro Muffler Brake, Inc. (the "Company") and Catherine D'Amico (the
"Executive").
WHEREAS, the Company wishes to employ the Executive
and the Executive desires to serve in the employ of the Company upon the terms
and conditions hereinafter provided.
IT IS THEREFORE AGREED AS FOLLOWS:
1. EMPLOYMENT AND DUTIES.
1.1 EMPLOYMENT BY THE COMPANY. The Company hereby
agrees to employ the Executive for the Term (as herein defined), to render
exclusive and full-time services in the capacity of Senior Vice President and
Chief Financial Officer of the Company, subject to the control and direction of
the Company's President and Board of Directors (the "Board of Directors").
1.2 DUTIES/AUTHORITY. The Executive shall have
responsibility for the conduct of the business and fiscal affairs of the Company
and the general supervision of and control over the assets, business interests,
and agents of the Company, in each case subject to the control and direction of
the President. The Executive's duties hereunder shall be consistent with the
duties, responsibilities, and authority generally recognized for the offices of
Chief Financial Officer and Senior Vice President.
2. TERM OF EMPLOYMENT. The term of the Executive's
employment under this Agreement (the "Term") shall commence on December 1, 2000,
and shall end on May 31, 2003, unless sooner terminated as provided herein.
3. COMPENSATION.
3.1 SALARY. As compensation for all services to be
rendered pursuant to this Agreement, the Company shall pay the Executive during
the Term a salary of $140,000 per annum (the "Base Salary") effective April 1,
2000, payable not less frequently than monthly, less such amounts as shall be
required to be withheld by applicable law and regulations. The Company shall
review the Executive's salary annually.
3.2 ANNUAL BONUS. Pursuant to the Company's bonus
plan (the "Bonus Plan"), the Company shall pay the Executive, within 120 days of
its fiscal year end, a bonus in respect of each year during the Term beginning
with the fiscal year ending in March 2001, of 25% of Base Salary if the Company
achieves its performance targets set by the Board of Directors with respect to
such years, increased up to a maximum of 62.5% of Base Salary if the Company
exceeds such performance targets by amounts to be determined by the Board of
Directors (the "Annual Bonus"), less such amounts as shall be required to be
withheld by applicable law and regulations. If this Agreement terminates other
than at the end of a fiscal year end and if the Executive is entitled to a pro
rata bonus for such partial year pursuant to Section 4.5, such pro rata bonus
shall be equal to the bonus she would have received under the Bonus Plan had she
been employed by the Company for the entire fiscal year multiplied by a
fraction, the numerator of which shall be the number of days during such fiscal
years she was so employed and the denominator of which shall be 365.
3.3 PARTICIPATION IN EMPLOYEE BENEFIT PLANS. The
Executive shall be permitted during the Term, if and to the extent eligible, to
participate in any group life, hospitalization or disability
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insurance plan, health program, or any pension plan or similar benefit plan of
the Company, which is available generally to other senior executives of the
Company.
3.4 EXPENSES. Subject to such policies generally
applicable to senior executives of the Company, as may from time to time be
established by the Board of Directors, the Company shall pay or reimburse the
Executive for all reasonable expenses (including travel expenses) actually
incurred or paid by the Executive during the Term in the performance of the
Executive's services under this Agreement ("Expenses") upon presentation of
expense statements or vouchers or such other supporting information as it may
require.
3.5 VACATION. The Executive shall be entitled to such
amount of vacation which is available generally to other senior executives of
the Company.
3.6 ADDITIONAL BENEFITS. The Executive shall be
entitled to the following additional benefits under this Agreement:
(a) the use of an automobile comparable to that
provided to other senior executives in connection with the rendering of services
to the Company pursuant to this Agreement, together with reimbursement for all
gas, maintenance, insurance and repairs required by reason of her use of such
vehicle.
4. TERMINATION.
4.1 TERMINATION UPON DEATH. If the Executive dies
during the Term, this Agreement shall terminate and the Company shall have no
further obligations under this Agreement.
4.2 TERMINATION UPON DISABILITY. If during the Term
the Executive becomes physically or mentally disabled, whether totally or
partially, so that the Executive is unable substantially to perform her services
hereunder for a period or periods aggregating 90 days during any twelve month
period, the Company may at any time after such 90th day of disability, by
written notice to the Executive, terminate the Term of the Executive's
employment hereunder.
4.3 TERMINATION FOR CAUSE. The Company may at any
time, by written notice to the Executive, terminate the Term of the Executive's
employment hereunder for Cause and the Executive shall have no right to receive
any compensation or benefit hereunder on and after the effective date of such
notice, except for the payment of any Base Salary earned, and any Expenses
incurred but not yet paid to the Executive and benefits in accordance with
Section 4.5 hereof. For purposes hereof, the term "Cause" shall mean: (a)
conviction of, or a plea of nolo contendere or guilty by, the Executive for any
crime constituting a felony in the jurisdiction in which committed or for any
other criminal act against the Company; (b) failure or refusal of the Executive
in any material respect (i) to perform the duties of her employment or to follow
the lawful and proper directives of the Board of Directors, provided such duties
or directives are consistent with this Agreement and such duties or directives
have been given to the Executive in writing, or (ii) to comply with the
reasonable and substantial written policies, practices, standards or regulations
of the Company as may be established from time to time, if such failure or
refusal under either clause (i) or clause (ii) continues uncured for a period of
10 days after written notice thereof, specifying the nature of such failure or
refusal and requesting that it be cured, is given by the Company to the
Executive; (c) any willful or intentional act of the Executive committed for the
purpose, or having the reasonably foreseeable effect, of injuring the Company,
its business or reputation or of improperly or unlawfully converting for the
Executive's own personal benefit any property of the Company; or (d) any
violation or breach of the provisions of Section 6 of this Agreement.
4.4 TERMINATION WITHOUT CAUSE. During the Term, the
Company may terminate the Executive's employment without Cause upon 10 days'
written notice. If the Company terminates the Executive's employment without
Cause, the Executive shall receive (i) her Base Salary, payable in accordance
with the provisions of Section 3.1 hereof, for one year from the date of such
termination, and (ii) the Annual Bonus for
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the year prior to the year in which the Executive is terminated, to the extent
not yet paid. Termination by the Company any time prior to May 21, 2003 will
require payments in accordance with the preceding sentence. All stock options
that have been granted to the Executive through the termination date shall be
deemed fully vested and exercisable on such date and for a period of 90 days
following such date, all in accordance with the other terms of any such plan or
grant.
4.5 BENEFITS UPON TERMINATION. Notwithstanding
termination of this Agreement pursuant to Section 4.1 or 4.2, the Executive
shall continue to be entitled to compensation and benefits accrued through the
date of death or disability as the case may be. Except as provided in Sections
4.4 and 5 hereof, all of the Executive's rights to bonuses and fringe benefits
accruing after any termination of this Agreement, if any, shall cease upon such
termination; provided, however, that (i) the Executive shall be entitled to any
amounts payable to the Executive under any Company profit sharing or other
employee benefit plan up to the date of termination; (ii) nothing contained in
this Agreement is intended to limit or otherwise restrict the availability of
any benefits to the Executive required to be provided pursuant to Section 4980B
of the Code; (iii) if the employment of the Executive terminates pursuant to
Section 4.1, 4.2 or 4.4 other than at the end of a fiscal years, she shall be
entitled to a pro rata bonus under the Bonus Plan in respect of such year as
provided in Section 3.2.
5. CHANGE IN CONTROL. In the event of the occurrence of
a Change in Control of the Company, the Executive shall remain employed by the
Company, pursuant to the terms and conditions of this Agreement. If, after the
Change in Control, the Executive's employment is terminated without Cause or the
Executive resigns following a material diminution in her duties as set forth in
Section 1.2 of this Agreement, then the Executive shall continue to receive her
Base Salary for one year, and the ISOs granted to the Executive shall become
fully vested and exercisable as of the date of termination or resignation, as
the case may be. The options will remain exercisable for a period of 90 days
following such date, all in accordance with the other terms of the ISO plan. For
purposes of this Agreement, a "Change in Control" shall mean any of the
following: (i) any person who is not an "affiliate" (as defined in Rule 12b-2
under the Securities Exchange Act of 1934, as amended) of the Company as of the
date of this Agreement becomes the beneficial owner, directly or indirectly, of
50% or more of the combined voting power of the then outstanding securities of
the Company except pursuant to a public offering of securities of the Company;
(ii) the sale of the Company substantially as an entirety (whether by sale of
stock, sale of assets, merger, consolidation, or otherwise) to a person who is
not an affiliate of the Company as of the date of this Agreement; or (iii) there
occurs a merger, consolidation or other reorganization of the Company with a
person who is not an affiliate of the Company as of the date of this Agreement,
and in which shareholders of the Company immediately preceding the merger hold
less than 50% (the voting and consent rights of Class C Preferred Stock shall be
disregarded in this calculation) of the combined voting power for the election
of directors of the Company immediately following the merger. A change of
Control shall not be deemed to occur because of the sale or conversion of any or
all of Class C Preferred Stock of the Company unless there is a simultaneous
change described in clauses (i), (ii) or (iii) of the preceding sentence. Change
of control shall not include the sale, by the preferred shareholders, of any of
the Preferred Stock issued and outstanding at any time.
6. NON-COMPETITION AND CONFIDENTIALITY.
6.1 NON-DISCLOSURE. The Executive will not, during
the period of the Executive's employment with the Company or at any time
thereafter, regardless of the reason for the cessation of the Executive's
employment: (i) use any Confidential Information for the Executive'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 the Executive's
duties during the Executive's employment by the Company. Upon termination of the
Executive's employment, or at any such time as the Company may request, the
Executive will deliver to the Company all copies in the Executive's possession
of any Confidential Information, in any form. The Executive will not at any time
assert any rights as against the Company in or with respect to any Confidential
Information.
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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 the Executive can prove was in the Executive's possession prior to
the commencement of the Executive'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 the Executive.
6.2 NON-COMPETITION. The Executive will not, during
the period of the Executive's employment with the Company, and for (i) a period
of two years after the termination of the Executive's employment with the
Company for any reason other than termination by the Company without Cause, or
(ii) if for termination by the Company without Cause, for the period she
continues to receive her Base Salary pursuant to Section 4.4, directly or
indirectly, on the Executive'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 the
Company on the date of such termination of employment. Nothing contained herein
shall be construed as preventing the Executive 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.
6.3 NON-SOLICITATION OF EMPLOYEES. The Executive will
not, during the period of the Executive's employment with the Company, and for a
period of two years after the termination of the Executive's employment with the
Company for any reason, directly or indirectly, recruit, solicit or otherwise
induce or attempt to induce any employee of the Company to leave the employment
of the Company, nor hire any such employee at any enterprise with which the
Executive is then affiliated.
6.4 ENFORCEABILITY OF PROVISIONS. If any restriction
set forth in this Section 6 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 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.
6.5 REMEDY FOR BREACH. The Executive hereby
acknowledges that the provisions of this paragraph 7 are reasonable and
necessary for the protection of the Company and its respective subsidiaries and
affiliates. In addition, the Executive further acknowledges that the Company and
its respective subsidiaries and affiliates will be irrevocably damaged if such
covenants are not specifically enforced. Accordingly, the Executive agrees that,
in addition to any other relief to which the Company may be entitled, the
Company will be entitled to seek and obtain injunctive relief (without the
requirement of any bond) from a court of competent jurisdiction for the purposes
of restraining the Executive from an actual or threatened breach of such
covenants. In addition, and without limiting the Company's other remedies, in
the event of any breach by the Executive of such covenants, the Company will
have no obligation to pay any of the amounts that remain payable by the Company
under Section 5.4 of this Agreement.
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7. EXECUTIVE REPRESENTATIONS.
(a) The Executive hereby represents and warrants to
the Company that (i) the execution, delivery and performance of this Agreement
by the Executive does not and will not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or decree to
which the Executive is a party or by which he is bound, (ii) the Executive is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity, (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of the Executive, enforceable in accordance
with its terms, and (iv) the Executive is under no physical or mental disability
that would hinder him in the performance of his duties hereunder.
(b) The Executive shall indemnify and hold harmless
the Company from and against any and all claims, liabilities, damages and
reasonable costs of defense and investigation arising out of any breach or
inaccuracy in any of the foregoing representations and warranties.
8. OTHER PROVISIONS.
8.1 NOTICES. Any notice or other communication
required or which may be given hereunder shall be in writing and shall be
delivered personally, telecopied, or sent by certified, registered or express
mail, postage prepaid, to the parties at the following addresses or at such
other addresses as shall be specified by the parties by like notice, and shall
be deemed given when so delivered personally, telecopied or if mailed, two days
after the date of mailing, as follows:
(a) if to the Company, to it at:
Monro Muffler Brake, Inc.
200 Holleder Parkway
Rochester, New York 14615
Attention: Robert G. Gross
(b) if to the Executive, to her at:
55 Great Wood Circle
Fairport, New York 14450
8.2 ENTIRE AGREEMENT. This Agreement contains the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior agreements, written or oral, with respect thereto.
8.3 WAIVERS AND AMENDMENTS. This Agreement may be
amended, modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, by the party waiving compliance. No delay
on the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any party
of any right, power or privilege hereunder, nor any single or partial exercise
of any right, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or privilege
hereunder.
8.4 GOVERNING LAW; JURISDICTION. This Agreement shall
be governed by and construed and enforced in accordance with and subject to, the
laws of the State of New York applicable to agreements made and to be performed
entirely within such state. The courts of New York and the United States
District Courts for New York shall have jurisdiction over the parties with
respect to any dispute or controversy between them arising under or in
connection with this Agreement.
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8.5 ASSIGNMENT. This Agreement shall inure to the
benefit of and shall be binding upon the Company and its successors and
permitted assigns and upon the Executive and his heirs, executors, legal
representatives, successors and permitted assigns. However, neither party may
voluntarily assign, transfer, pledge, encumber, hypothecate or otherwise dispose
of this Agreement or any of its or his rights hereunder without the prior
written consent of the other party, and any such attempted assignment, transfer,
pledge, encumbrance, hypothecation or other disposition without such consent
shall be null and void without effect.
8.6 COUNTERPARTS. This Agreement may be executed in
two counterparts, each of which shall be deemed an original but both of which
together shall constitute one and the same instrument.
8.7 HEADINGS. The headings in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
8.8 SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement, or any part thereof, is held by a court of
competent jurisdiction of any foreign, federal, state, county or local
government or any other governmental, regulatory or administrative agency or
authority to be invalid, void, unenforceable or against public policy for any
reason, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
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IN WITNESS WHEREOF, the parties have executed this Amended and
Restated Employment Agreement as of the date first above written.
MONRO MUFFLER BRAKE, INC.
By:
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Name:
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Title:
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Catherine D'Amico
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