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AMENDED AND RESTATED
NON-COMPETITION AGREEMENT
This Amended and Restated
Non-Competition Agreement (this ?Agreement?) is
made by and between The Pep Boys-Manny, Moe & Jack, a
Pennsylvania corporation
(the "Company"), and ___________ (the "Officer"), on this ____ day
of
______________________ (the ?Effective Date?).
WHEREAS, the Company and
Officer previously entered into that certain Non-
Competition Agreement, dated as of _____________________ (the
?Original
Agreement?), which provides for certain severance benefits to the
Officer in the event of
a covered termination in exchange for the Officer?s willingness to
provide the Company
with the covenant against competition contained in the Original
Agreement;
WHEREAS, the Company and
Officer desire to amend the Original Agreement
so that it complies with the requirements of section 409A of the
Internal Revenue Code
of 1986, as amended (the ?Code?), and the final regulations issued
thereunder, as well as
to make certain other changes; and
NOW, THEREFORE, for good and
valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and incorporating the
foregoing recitals,
the parties agree as follows:
1. Severance
Benefit.
a.
If the Officer?s
employment shall be terminated by the Company
without Cause (as defined below) and the Officer executes, and does
not revoke, the
Company?s then current standard separation and release agreement
(the ?Release?), the
Company shall pay to the Officer a lump sum cash payment equal in
value to the
Officer?s annual base salary, as in effect immediately prior to the
Officer?s termination
date, (the ?Severance Benefit?); provided, however, that the
Severance Benefit shall not
be payable if the Officer?s employment shall be terminated during
such Officer?s
Employment Period (as defined in that certain Change of Control
Agreement, dated as of
the date hereof, between the Company and the Officer (the ?Change
of Control
Agreement?)). During the Employment Period, the Change of Control
Agreement shall
supercede this Agreement in its entirety. Unless the payment is
required to be delayed
pursuant to Section 4b below, such Severance Benefit shall be paid
to the Officer within
sixty (60) days following the Officer?s termination date, provided
that the Officer
executes the Release during the sixty (60) day period and the
revocation period for the
Release has expired without revocation by Executive.
b. For
the purposes of this Agreement, ?Cause? shall mean (i) the
continued failure of the Officer to perform substantially his
duties with the Company
(other than any such failure resulting from the Officer?s
incapacity due to physical or
mental illness), (ii) any act by the Officer of illegality,
dishonesty or fraud in connection
with the Officer?s employment, (iii) the willful engaging by the
Officer in gross
misconduct which is demonstrably and materially injurious to the
Company or its
affiliates, (iv) the Officer?s conviction of or pleading guilty or
no contest to a felony, or
(v) a violation of Section 2 hereof.
2. Covenant
Against Competition.
a. The
Officer shall not, during his employment with the Company
and for one year thereafter, directly or indirectly, induce or
attempt to influence any
employee of the Company to terminate his employment with the
Company or hire or
solicit for hire on behalf of another employer any person then
employed or who had been
employed by the Company during the immediately preceding six
months.
b. The Officer shall
not, during his employment with the Company
and for one year thereafter, unless the Officer is terminated by
the Company without
Cause, directly or indirectly, engage in (as a principal, partner,
director, officer, agent,
employee, consultant or otherwise) or be financially interested in
any business operating
within the United States of America, if (i) such business? primary
business is the retail
and/or commercial sale of automotive parts, accessories, tires
and/or automotive
repair/maintenance services including, without limitation, the
entities (including their
franchisees and affiliates) listed on Schedule 2(b)(i) hereto, or
(ii) such business is a
general retailer which generates revenues from the retail and/or
commercial sale of
automotive parts, accessories, tires and/or automotive
repair/maintenance services in an
aggregate amount in excess of $1 billion, including, without
limitation, the entities
(including their franchisees and affiliates) listed on Schedule
2(b)(ii) hereto. However,
nothing contained in this Section 2b shall prevent the Officer from
holding for investment
up to two percent
(2%)
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