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Exhibit 10.45
Severance, Release and Noncompetition Agreement
This Severance,
Release and Noncompetition Agreement (“Agreement”) is
entered into as of March 4, 2005 by and among Advance Auto Parts,
Inc. (“AAP”), Advance Stores Company, Incorporated
(“ASCI”) (“AAP” and “ASCI” are
jointly and severally hereinafter referred to as
“Advance”) and Robert E. Hedrick
(“Employee”).
WHEREAS,
Advance and Employee have determined that their mutual interests
are best served if Employee terminates his employment with Advance,
and have further agreed that Employee will resign from his
employment with Advance effective as of March 31, 2005 (the
“Effective Date”);
WHEREAS,
Advance has agreed to provide to Employee the benefits and payments
provided for in this Agreement, which are in addition to the
benefits and payments which Advance is otherwise obligated to
provide to Employee in connection with the termination of
Employee’s employment with Advance (which additional benefits
and payments include, but are not limited to, salary continuation
for nine (9) months and bonus eligibility continuation for the
remainder of fiscal 2004) in return for the additional covenants,
agreements and obligations of Employee provided for in this
Agreement; and
WHEREAS,
Employee is willing to accept the additional benefits and payments
to him provided for in this Agreement and to comply with the terms
and conditions of this Agreement, and the terms and conditions of
all other agreements between Advance and Employee (as modified
herein) which survive the termination of Employee’s
employment with Advance.
NOW, THEREFORE,
in consideration of the foregoing premises, the mutual promises of
the parties set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
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1. |
Recitals . The parties hereto agree that the foregoing
recitals in this Agreement are true and accurate. |
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2. |
Discharge of Severance Obligations . Advance shall pay
to Employee and Employee accepts from Advance the
following: |
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2.01. |
A lump sum payment, less all applicable withholding taxes and
payroll deductions, which shall be paid to Employee within two
weeks after the Effective Date, and which shall represent payment
for the amount of his hours of accrued but unused vacation time
to |
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which Employee would have been entitled as of the Effective
Date had he not terminated his employment with Advance. |
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2.02. |
(a) A lump sum bonus payment attributable to the
fourth fiscal quarter of 2004 of that amount which Employee would
have been entitled to (if any) had Employee remained an Employee
through the time required to receive such bonus payment. Such bonus
payment shall be made at the time the fourth quarter bonus payment
is made to other executives and shall include any annual roll-up
amounts that would have been earned. Employee shall not be entitled
to any bonus payments attributable to the 2005 fiscal
year. |
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(b) When the item described in section 2.02(a)
above is paid to Employee, such payment shall constitute payment in
full of Advance’s obligations under the 2004 Bonus Plan for
Employee, a copy of which is attached hereto as Exhibit A
(“2004 Bonus Plan”) and Employee shall be entitled to
no further bonus payments. |
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2.03. |
The sum of $157,676.91, the equivalent of nine (9) months of
Employee’s applicable salary as of the date of his
termination of employment with Advance, which shall be paid in
equal installments (on the normal management pay cycle) during the
nine (9) month period commencing on April 1, 2005, less all
applicable withholding taxes and payroll deductions. |
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2.04. |
All payments to Employee under the provisions of Sections 2.01
and 2.03 will not be eligible for deferral or matching
contributions under any pension or benefit plan. |
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2.05. |
Outplacement services for 12 months shall be provided to
Employee under the Executive Program by Lee Hecht Harrison to
include consulting, search support and administrative
services. |
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3. |
Medical Insurance Coverage . Advance will provide
continued group health insurance coverage to Employee under the
same terms and conditions as provided to other executives of the
Company until March 31, 2005. Advance will provide continued group
health insurance coverage pursuant to federal law under the
regulations governing COBRA continuation coverage, and under the
terms of the applicable group health plan(s) or successor plan(s).
The date of the qualifying event is March 31, 2005, for COBRA
continuation coverage purposes. From the period April 1, 2005
through December 31, 2005, the Company shall pay that amount of
COBRA cost on behalf of Employee so that Employee shall only
be |
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required to pay that amount he would have had to pay had he
still been employed during that time period. |
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4. |
Release and Waiver . Employee for himself, his heirs,
executors, administrators and assigns, hereby knowingly,
voluntarily and unconditionally releases, waives, and forever
discharges Advance and Advance’s subsidiaries (including but
not limited to Western Auto Supply Company), parents, affiliates,
and their joint and several employees, officers, directors,
shareholders, investors, benefit plans, trustees, and their
successors and assigns (hereinafter jointly and severally referred
to for purposes of this Agreement as “Releasees”), from
any and all obligations, claims, demands, liabilities, judgments,
causes of action, suits at law or in equity, in tort, contract, by
statute or on any other basis, for pay and/or benefits, for
compensatory, punitive or other damages, attorney fees, expenses,
reimbursements, or costs of any kind, including, but not limited
to, any and all claims, demands, rights and/or causes of action
under Title VII of the Civil Rights Act of 1964, as amended, the
Civil Rights Act of 1991, the Fair Labor Standards Act, the Family
and Medical Leave Act, the Age Discrimination in Employment Act,
the Americans with Disabilities Act, the Rehabilitation Act of
1973, the Workers Adjustment Retraining and Notification Act, the
Employee Retirement Income Security Act or any other federal,
state, or local statute or ordinance or any other claims, whether
statutory or based on common law, arising: (a) by reason of his
employment with Advance or the cessation of that employment or
circumstances related thereto; or (b) by reason of any other
matter, cause, or thing done, omitted or suffered to be done prior
to and including the date on which Employee signs below. The
parties agree and understand that this is not to be construed as an
admission of liability by the Releasees or any other person or
entity released hereby, by whom any liability is expressly denied.
The Releasees expressly deny violation of any of their policies,
procedures or agreements, or of any federal, state or local laws or
regulations. Employee further acknowledges that he may subsequently
discover facts which were in existence at the time this Agreement
and general release is signed in addition to or different from
those which he now knows or believes to exist with respect to the
subject matter of this Agreement and which, if known or suspected
at the time of executing this Agreement, may have materially
affected this Agreement and settlement. Nevertheless, Employee
hereby waives any right, claim or cause of action that might arise
as a result of such different or additional facts provided such
facts were in existence at the time this Agreement and general
release is signed. |
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5. |
Derogatory or Defamatory Statements . Employee agrees
that he will not, by any means or in any media, make or provide any
comment, information, communication, expression, statement or
depiction detrimental, injurious or derogatory to the interests of
Advance (including its directors, officers, employees, investors,
shareholders, affiliates or related entities) (collectively
referred to in this Section as the “Company”), and
further agrees that he will not disparage, denigrate, or cast the
Company in an unfavorable light in any manner. Employee also agrees
that he will not encourage or facilitate any other person to make
any derogatory or disparaging comments on his behalf, or
attributable to him, or based in any way upon information he
supplied, about the Company or consent to or approve any such
action by another person. Specifically, Employee recognizes that by
virtue of his position with Advance or his knowledge of the Company
or other information he possesses (including, but not limited to
Confidential Information as defined in the Employment Agreement),
he may be subjected to inquiries or otherwise approached by the
media (general or trade), potential or actual investors, business
persons (including, but not limited to, industry competitors) or
other persons, and asked for his opinions or comments regarding
matters relating to the Company, which may include, but is not
limited to, information regarding the business plans, strategies,
personnel, officers, directors, and/or present or former employees
of the Company, and potential or actual investors. While this
Agreement is not intended to unduly restrict Employee’s
ability to respond to any such inquiries, both the Company and
Employee desire to avoid any issues or situations in which
Employee’s opinions, comments or statements could be
misunderstood or mischaracterized to the detriment of the Company,
or would violate in any way this Section of the Agr |
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