EXHIBIT 10.06
SECOND AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of November
14, 2002 (the "Restatement Date"), between Monro Muffler Brake, Inc. (the
"Company") and Robert G. Gross (the "Executive").
WHEREAS, the Company and the Executive entered into an Employment
Agreement, dated as of November 18, 1998, which was amended and restated by
agreement dated as of February 16, 1999 and further amended as of June 5, 2002
(the "Employment Agreement");
WHEREAS, the Company and the Executive wish for the Executive to
continue to serve in the employ of the Company upon the terms and conditions
hereinafter provided; and
WHEREAS, the Company and the Executive have agreed to amend and restate
the Employment Agreement by this Second Amended and Restated Employment
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree 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 President and Chief Executive Officer of
the Company, subject to the control and direction of the Company's 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 properties, business interests, and agents
of the Company, in each case subject to the control and direction of the Board
of Directors. The Executive's duties hereunder shall be consistent with the
duties, responsibilities, and authority generally recognized for the offices of
Chief Executive Officer and President.
2. Term of Employment. The term of the Executive's employment under
this Agreement (the "Term") shall continue beginning on the Restatement Date and
ending on December 31, 2006, 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 a salary of
$465,000 per annum (the
"Base Salary"), payable not less frequently than monthly, less such amounts as
shall be required to be withheld by applicable law and regulations. During the
Term, the Executive's Base Salary will be reviewed annually by the Compensation
Committee of the Board of Directors and may be adjusted upward (but not
downward) to reflect the Executive's performance and responsibilities.
3.2 Special Bonus. The Company shall pay the Executive a cash
bonus in respect of each year during the Term (a "Special Bonus"), provided that
on each payment date the Executive continues to be employed by the Company, as
follows: (i) on January 1, 2003, the Company shall pay the Executive a cash
bonus of $250,000; (ii) on January 1, 2004, the Company shall pay the Executive
a cash bonus of $250,000; (iii) on January 1, 2005, the Company shall pay the
Executive a cash bonus of $250,000; and (iv) on January 1, 2006, the Company
shall pay the Executive a cash bonus of $250,000. Each Special Bonus payment
shall be reduced by such amounts as shall be required to be withheld by
applicable law and regulations.
3.3 Annual Bonus. Pursuant to the Monro Muffler Brake, Inc.
Management Incentive Compensation Plan (as such plan may be amended or replaced
from time to time, 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 of 60% (90% for bonuses related to fiscal years 2004 and later) of Base
Salary if the Company achieves its performance targets set by the Committee (as
defined under the Bonus Plan) with respect to such years, increased up to a
maximum of 120% (150% for bonuses related to fiscal years 2004 and later) of
Base Salary if the Company exceeds such performance targets by amounts to be
determined by the Committee (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 and if the Executive is
entitled to a pro rata bonus for such partial year pursuant to Section 5.5, such
pro rata bonus shall be equal to the bonus the Executive would have received
under the Bonus Plan had he 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 year he was so employed and the denominator of which shall be
365. The Annual Bonus shall, in all respects, be subject to the terms of the
Bonus Plan.
3.4 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 insurance plan, health program
(including either coverage thereunder for his wife notwithstanding any
pre-existing condition or separate reimbursement of his wife's medical expenses
by the Company), or any pension plan or similar benefit plan of the Company,
which is available generally to other senior executives of the Company.
3.5 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.
3.6 Vacation. The Executive shall be entitled to such amount of
vacation which is available generally to other senior executives of the Company;
provided, however, that in no event shall the Executive be entitled to less than
three weeks of vacation in each fiscal year during the Term.
3.7 Stock Options.
(a) Pursuant to the Employment Agreement, the Executive was
granted under the 1989 Monro Muffler Brake Employees' Incentive Stock Option
Plan (the "1989 Stock Option Plan") incentive stock options (the "ISOs"), within
the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), to purchase 225,000 shares of the Company's common stock. The ISOs have
an exercise price equal to the fair market value of the Company's common stock
on the date of grant and have a 10 year term. The portion of the ISOs to
purchase 162,348 shares of the Company's common stock has vested pursuant to the
terms of the Employment Agreement. The portion of the ISOs to purchase 49,848
shares of the Company's common stock shall vest and become exercisable on
December 1, 2002, and the portion of the ISOs to purchase the remaining 12,804
shares of the Company's common stock shall vest and become exercisable on
January 1, 2003, provided that on each such date the Executive continues to be
employed by the Company. The parties expressly acknowledge that the terms of
this paragraph (a), including without limitation the vesting schedule of the
ISOs, have not been modified as of the Restatement Date.
(b) Pursuant to the Employment Agreement, the Executive was
granted under the Monro Muffler Brake, Inc. 1998 Stock Option Plan (the "1998
Stock Option Plan," together with the 1989 Stock Option Plan, the "Plans")
non-qualified stock options (the "Prior NSOs") to purchase 200,000 shares of the
Company's common stock. The Prior NSOs have an exercise price equal to the fair
market value of the Company's common stock on the date of grant and shall have a
10 year term. The Prior NSOs have vested pursuant to the terms of the Employment
Agreement.
(c) As of the Restatement Date, the Executive shall be
granted under the 1998 Stock Option Plan non-qualified stock options (the "New
NSOs," together with the Prior NSOs, the "NSOs") to purchase 80,000 shares of
the Company's common stock. The New NSOs shall have an exercise price equal to
the fair market value of the Company's common stock on the Restatement Date and
shall have a 10 year term. The New NSOs shall be fully vested and exercisable as
of the date of grant.
(d) Notwithstanding the foregoing, the ISOs and NSOs granted
pursuant to this Agreement shall, in all respects, be subject to the terms of,
and are intended to conform in all respects with, the applicable Plan under
which they are granted. Inconsistencies between this Agreement and the Plan
shall be resolved according to the terms of the Plan.
3.8 Additional Benefits. The Executive shall be entitled to 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 his use of such vehicle.
4. Stock Purchase.
(a) Pursuant to the Employment Agreement, between December
1998 and January 1999, the Executive purchased, in the open market, 100,000
shares of Company common stock (the "Shares").
(b) In connection with the purchase of the Shares, the
Executive paid the amount equal to the purchase price necessary for the purchase
of the first 25,000 shares (the "Out-of-Pocket Sum"). Pursuant to a Secured Note
Agreement between the Company and the Executive, amended and restated as of
February 16, 1999, the Company lent to the Executive, on a full-recourse basis,
on December 14, 1998 and December 29, 1998, the balance required for the
purchase of the remaining 75,000 Shares above the Out-of-Pocket Sum (the
"Loan"). The Loan is due and payable by the Executive, with such payment made in
cash, in five annual installments, each equaling 20% of the principal amount of
the Loan (the "Installment Payments"), with all accrued interest and other
charges due and payable on the fifth anniversary of the date of the Loan;
provided, however, that if the Executive is employed with the Company pursuant
to this Agreement at the time any Installment Payment is due, such Installment
Payment shall be forgiven by the Company.
(c) The parties expressly acknowledge that the terms of this
Section 4, including without limitation any terms pertaining to the Loan, have
not been modified as of the Restatement Date, and no renewal or extension of the
Loan has been effectuated.
5. Termination.
5.1 Termination Upon Death. If the Executive dies during the
Term, this Agreement shall terminate and the Executive's estate or
beneficiaries, as applicable, shall receive a lump sum amount equal to (i) the
lesser of (A) one year's Base Salary as in effect as of the date of termination,
or (B) the amount of Base Salary that would have been payable to the Executive
from the date of death through December 31, 2006; plus (ii) any Special Bonus
payments not yet received during the Term as of the date of death.
5.2 Termination Upon Disability. If during the Term the Executive
becomes physically or mentally disabled, whether totally or partially, so that
the Executive is unable to perform the essential functions of his job with or
without reasonable accommodation 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 and the Executive shall receive (i) his Base
Salary, payable in accordance with the provisions of Section 3.1 hereof, until
the earlier of (A) one year from the date of such termination or (B) December
31, 2006; and (ii) any Special Bonus payments not yet received during the Term
as of the date of disability, payable in accordance with the provisions of
Section 3.2 hereof on January 1st of each applicable year.
5.3 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 5.5 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 his 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 7 of this Agreement.
5.4 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) his Base Salary, payable in accordance with the
provisions of Section 3.1 hereof, until one year from the date of such
termination; and (ii) any Special Bonus payments not yet received during the
Term as of the date of termination, payable in accordance with the provisions of
Section 3.2 hereof on January 1st of each applicable year.
5.5 Benefits upon Termination. Notwithstanding termination of
this Agreement pursuant to Section 5.1 or 5.2, 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 Section 6 hereof or as set
forth in Sections 5.1, 5.2 and 5.4 with respect to the Executive's entitlement
to any Special Bonus, 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; and (iii) if the employment of the
Executive terminates pursuant to Section 5.1, 5.2 or 5.4, he shall be entitled
to (A) a pro rata bonus under the Bonus Plan in respect of such year as provided
in Section 3.3 (unless such termination occurs at the end of a fiscal year) and
(B) the Annual Bonus for the year prior to the year in which the Executive is
terminated, to the extent not yet paid.
6. Change in Control.
(a) 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. Notwithstanding anything contained in
Section 5.4 to the contrary, if, after the Change in Control, the Executive's
employment is terminated without
Cause or the Executive resigns following a material diminution in his duties as
set forth in Section 1.2 of this Agreement, then the Executive shall continue to
receive his Base Salary for the remainder of the Term. In addition, upon the
occurrence of a Change in Control, the Executive shall receive a lump sum amount
equal to any Special Bonus payments not yet received during the Term as of the
date of such Change in Control. 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 the Company is not
the surviving entity.
(b) If it is determined by the Company, or by the Internal
Revenue Service (the "IRS") pursuant to an IRS audit of the Executive's federal
income tax return(s) (an "Audit"), that any payment or benefit provided to the
Executive under this Agreement as a result of a Change in Control of the Company
occurring prior to February 1, 2004 would be subject to the excise tax imposed
by Section 4999 of the Code (an "Excess Parachute Payment"), or any interest or
penalties with respect to such excise tax (such excise tax, together with any
interest or penalties thereon, is herein referred to as the "Excise Tax"), then
the Company shall pay (either directly to the IRS as tax withholdings or to the
Executive as a reimbursement of any amount of taxes, interest and penalties paid
by the Executive to the IRS) both the Excise Tax and an additional cash payment
(a "Gross-Up Payment") in an amount that will place the Executive in the same
after-tax economic position that the Executive would have enjoyed if the payment
or benefit had not been subject to the Excise Tax. The amount of the Gross-Up
Payment shall be calculated by the Company's regular independent auditors based
on the amount of the Excise Tax paid by the Company as determined by the Company
or the IRS. If the amount of the Excise Tax determined by the IRS is greater
than an amount previously determined by the Company, the Company's auditors
shall recalculate the amount of the Gross-Up Payment. The Executive shall
promptly notify the Company of any IRS assertion during an Audit that an Excise
Tax is due with respect to any payment or benefit, provided that the Executive
shall be under no obligation to defend against such claim by the IRS unless the
Company requests, in writing, that the Executive undertake the defense of such
IRS claim on behalf of the Company and at the Company's sole expense. In such
event, the Company may elect to control the conduct to a final determination
through counsel of it own choosing and at its sole expense, of any audit,
administrative or judicial proceeding involving an asserted liability relating
to the Excise Tax, and the Executive shall not settle, compromise or concede
such asserted Excise Tax and shall cooperate with the Company in each phase of
any contest. Notwithstanding the foregoing, the Company shall have no obligation
to make a Gross-Up Payment to the Executive with respect to any Excess Parachute
Payment or Excise Taxes relating to a Change in Control of the Company that
occurs on or after February 1, 2004.
7. Non-Competition and Confidentiality.
7.1 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.
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.
7.2 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 he continues to receive
his Base Salary pursuant to Section 5.4, 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.
7.3 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.
7.4 Enforceability of Provisions. If any restriction set forth in
this Section 7 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.
7.5 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.
8. 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.
9. Other Provisions.
9.1 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: Compensation Committee
(b) if to the Executive, to him at:
37 Whitestone Lane
Rochester, New York 14618
9.2 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.
9.3 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.
9.4 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.
9.5 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.
9.6 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.
9.7 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.
9.8 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.
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: /s/ Catherine D'Amico
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Name: Catherine D'Amico
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Title: Executive Vice President and CFO
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/s/ Robert G. Gross
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Robert G. Gross