EXHIBIT 10.45
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (this "Agreement") is made and
entered into as of the 14th day of February, 2003 (the "Agreement Effective
Date"), by and between Xxxxxxx Xxxxx, individually ("Xxxxx"), and Motorcar Parts
& Accessories, Inc., a New York corporation (together with its subsidiaries and
affiliates, the "Company"), with reference to the following facts and
objectives:
RECITALS
(1) The Company is a leading remanufacturer of replacement alternators
and starters for imported and domestic cars and light trucks in the United
States and Canada. The Company also assembles and distributes ignition wire sets
for imported and domestic cars and light trucks with facilities in the United
States in Torrance, California and Nashville, Tennessee, as well as in Singapore
and Malaysia;
(2) Xxxxx has been employed by the Company as its President and Chief
Executive Officer pursuant to the terms of an Employment Agreement dated
December 1, 1999 (the "Employment Agreement"), and has been a director of the
Company since December 1, 1999; and
(3) Xxxxx and the Company entered into a letter agreement on February
14, 2003, pursuant to which Xxxxx and the Company agreed to the terms and
conditions of the termination of Xxxxx'x employment, among other matters (the
"Letter Agreement"). The Letter Agreement provides for the parties to enter into
this Agreement.
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NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and subject to the terms and conditions set forth
herein, the parties hereto hereby agree as follows:
1. RESIGNATION; DIRECTORSHIP. Xxxxx has, effective at the close of
business, California time, on the Agreement Effective Date, resigned as a
director, officer and from any and all other positions and capacities with or in
the Company (except as an independent consultant as set forth herein), a copy of
which resignation is attached as Exhibit A. Notwithstanding the date that this
Agreement is signed, and provided that it is not revoked pursuant to Section 4.3
hereof, Xxxxx hereby confirms the termination of his employment by the Company
effective as of the Agreement Effective Date. Except as set forth in Sections
2.1 through 2.8 hereof, inclusive, the Employment Agreement is terminated as of
the Agreement Effective Date and has no further force, effect or validity.
2. CONSULTING SERVICES AND SEVERANCE BENEFITS. In lieu of any and all
severance pay and other benefits provided for in the Employment Agreement, at
law, or otherwise, the Company shall pay to or provide for the benefit of Xxxxx
the benefits described below. Xxxxx acknowledges that the benefits and
arrangements contained in this Agreement are anticipated to exceed the benefits
to which Xxxxx would have been entitled in the absence of this Agreement, and
that such benefits represent fair and adequate consideration for the release
contained herein and the other terms and conditions of this Agreement.
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2.1 CONTINUATION OF BASE SALARY. The Company will continue payment of
Xxxxx'x Base Salary, as provided in Section 5(a) of the Employment
Agreement, through May 31, 2003.
2.2 VACATION PAY. Within three (3) business days after the date this
Agreement is executed by the parties, the Company will pay Xxxxx the
sum of $34,615.38 (less $15,614.99 to be withheld for applicable
payroll taxes) as vacation pay through May 31, 2003.
2.3 SICK PAY. Xxxxx acknowledges that no sick pay is due to Xxxxx.
2.4 BONUS. Not later than July 15, 2003, the Company will pay Xxxxx his
bonus for the fiscal year ended March 31, 2003 less any amounts
advanced with respect thereto. In addition, any bonus that is payable
to Xxxxx for the two month period that will end on May 31, 2003, will
be paid to Xxxxx within 30 days after completion of the audited
financial results of the Company for the fiscal year ending March 31,
2004. With regard to matters relating to Xxxxx'x bonus, the provisions
of Section 5(c) of the Employment Agreement will govern.
2.5 BUSINESS EXPENSES. The Company will reimburse Xxxxx for business
expenses incurred by Xxxxx in the manner provided in Section 6 of the
Employment Agreement. In this regard, Xxxxx may retain the cell phone
he is currently using for business purposes and the Company will
reimburse him for such usage. On May 31, 2003, Xxxxx will return the
cell phone to
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the Company or purchase it for a mutually agreeable price. If
practicable, Xxxxx will be given the opportunity to retain the cell
phone number for his use after May 31, 2003, whether or not he
purchases the cell phone. Further, Xxxxx will properly document or
reimburse the Company for an aggregate of $1049.80 in charges incurred
on an American Express issued to him.
2.6 HEALTH BENEFITS. The Company will pay Xxxxx the sum of $2,086.45
per month for each of the months of March, April and May 2003, for
health benefits under Section 7(a) of the Employment Agreement.
2.7 AUTOMOBILE ALLOWANCE AND EXPENSES. All expenses that are to be paid
by the Company pursuant to Section 7(b) of the Employment Agreement
shall be paid for Xxxxx'x automotive use through May 31, 2003. In
addition, the Company will pay Xxxxx an amount equal to $1,502.00 as
reimbursement for documented automobile insurance costs that Xxxxx
incurred and paid prior to the Agreement Effective Date.
2.8 BENEFITS UNDER EXECUTIVE DEFERRED COMPENSATION PLAN. The Company
confirms that Xxxxx may withdraw, without restriction and at any time,
the entire balance in his account under the Company's Executive
Deferred Compensation Plan (the "Deferred Compensation Plan") to the
extent of contributions by Xxxxx and the Company through the Agreement
Effective Date.
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2.9 INDEMNIFICATION. The Company will indemnify Xxxxx for his prior
service as an officer and director of the Company and for Xxxxx'x
service as a consultant following the Agreement Effective Date, to the
fullest extent provided by applicable law and in accordance with the
Company's Certificate of Incorporation and Bylaws. In this connection,
Xxxxx will cooperate with the Company and its counsel as the Company
may reasonably request.
2.10 LEGAL EXPENSES. Each of the parties hereto shall bear his or its
own legal expenses and related costs.
3. AGREEMENTS AND OPTIONAL TERMINATION.
3.1 AGREEMENT TO PROVIDE CONSULTING SERVICES. Commencing as
of the Agreement Effective Date and continuing through May 31, 2004, Xxxxx
agrees to provide consulting services to the Company as an independent
consultant. Xxxxx shall make himself available to the Company, its Chief
Executive Officer and other officers and to management employees, and its Board
of Directors as they may request upon reasonable advance notice, but subject to
other engagements Xxxxx may schedule prior to the receipt of any such notice
requesting his services for the Company. The Company's Chief Executive Officer
and other officers of the Company shall have the authority to notify Xxxxx and
request his services. Consulting services that are requested from Xxxxx will not
be inconsistent with Xxxxx'x duties while he was the Company's Chief Executive
Officer. In this connection, Xxxxx shall use reasonable efforts to cooperate
with the
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Company so that appropriate consulting times may be scheduled. The compensation
and benefits set forth in Sections 2.1 through 2.8, above, shall be the total
compensation payable to Xxxxx for such consulting services for the period from
the Agreement Effective Date through May 31, 2003. For the period from June 1,
2003 through May 31, 2004, Xxxxx'x compensation shall be $15,000/month, payable
on or before the fifth day of each month during that one-year period. Xxxxx
shall be fully responsible for any and all taxes (including, without limitation,
income taxes) that may arise in connection with the performance of his services
as an independent consultant.
3.2 COPYRIGHT OWNERSHIP. If in the course of providing his
services hereunder, Xxxxx, alone or with employees of the Company, develops any
material that the Company believes and informs Xxxxx may be subject to
protection under the United States Copyright Law, Xxxxx agrees that exclusive
ownership of the copyright shall reside in the Company and that such
copyrightable matter shall be a "work made for hire" as such term is defined in
he United States Copyright Law.
3.3 OPTIONAL TERMINATION. Xxxxx may terminate his consulting
Services for the Company at any time and for any reason following June 1, 2003,
by giving the Company at least 30 days prior written notice thereof.
4. GENERAL RELEASE.
4.1 RELEASE. Xxxxx, for and on behalf of himself and
each and all of his past, present, and future agents, attorneys, affiliates,
representatives, heirs, executors, administrators, family members, successors,
and assigns, hereby fully and
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forever releases the Company and its past, present, and future officers,
directors, managers, shareholders, agents, employees, attorneys, affiliates,
representatives, successors, and assigns (collectively, the "Company Related
Parties") from all claims, demands, debts, obligations, liabilities, costs,
expenses, rights of action, causes of action, or judgments of any kind or
character whatsoever, whether known or unknown, suspected or unsuspected,
contingent or absolute, direct or indirect, arising on or before the date hereof
or that hereafter may be claimed to arise out of any action, inaction, event, or
matter occurring on or before the date hereof, that were, might, or could have
been asserted against the Company Related Parties (collectively, the "Released
Claims"), including, but not limited to, any and all claims in connection with,
arising out of, resulting from, or in any way relating to Xxxxx'x employment
with the Company and the termination thereof; discrimination on the basis of:
age; race; national origin; sex; marital status; disability; medical, physical,
or mental condition; or sexual orientation; violation of public policy; wrongful
termination; breach of express or implied contract; breach of the implied
covenant of good faith and fair dealing; unpaid wages, benefits, accrued
vacation, or other compensation; breach of the Employment Agreement, or any
other contract; unfair labor practices; intentional or negligent infliction of
emotional distress or any other personal injury tort; or violation of any
federal, state, or local laws or regulations relating to employment
discrimination or otherwise, including, but not limited to, the federal Age
Discrimination in Employment Act ("ADEA") and the Older Workers' Benefit
Protection Act. The Released Claims specifically do not include (i) any
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claims arising out of the rights and obligations of the parties pursuant to this
Agreement, (ii) any claims arising out of Xxxxx'x right to be indemnified by the
Company, to the fullest extent provided by applicable law, and (iii) Xxxxx'x
rights as an option holder under the Company's 1994 Stock Option Plan. Nothing
in this release shall be interpreted to waive or release any right Xxxxx has
under applicable law to seek indemnification for claims that may be asserted
against him on behalf of the Company by one or more third parties.
4.2 KNOWING AND VOLUNTARY WAIVER. Xxxxx understands and agrees
that the Released Claims include ALL claims of any nature and kind whatsoever,
whether known or unknown, suspected or unsuspected, and Xxxxx hereby expressly
waives all rights under Section 1542 of the Civil Code of California, which
provides as follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor.
Xxxxx acknowledges that he hereafter may discover facts different from or in
addition to those that he now knows or believes to be true with respect to the
Released Claims and agrees that this release shall be and remain effective in
all respects notwithstanding any different or additional facts or the discovery
thereof.
4.3 ADEA RIGHTS. Xxxxx hereby acknowledges that he has been
advised that, pursuant to the ADEA, he is entitled to consider this Agreement
for a period of 21 days before execution hereof, and that he has the right to
revoke this Agreement for
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a period of seven days after execution hereof. Xxxxx hereby acknowledges that
this Agreement was delivered to him on February 20, 2003, and, if he has
executed this Agreement before March 13, 2003, he has done so knowingly, and
thereby expressly and voluntarily waives the right to consider this Agreement
for a period of 21 days prior to execution. Notwithstanding the date that Xxxxx
signs this Agreement, he has the right to revoke this Agreement for a period of
seven days after he signs it, as indicated next to his signature hereon.
4.4 COBRA RIGHTS. Notwithstanding the release provided for
herein, the Company is obligated to, and shall, provide Xxxxx timely written
notification of Xxxxx'x rights, if any, to continuation of insurance coverage
under the provisions of the Consolidated Omnibus Reconciliation Act of 1986
("COBRA").
5. LIMITATION ON ACTIVITIES. For purposes hereof, the
"business" of the Company is defined as set forth in subparagraph (1) in the
RECITALS to this Agreement. For the periods set forth in the following
Subsections of this Section 5, Xxxxx agrees that he will not:
5.1 COMPETING BUSINESS. During the period he is a
consultant to the Company, carry on or engage in any business that is
competitive with, the same as, or similar to, the business of the Company
anywhere within the United States of America;
5.2 SOLICITATION OF CUSTOMERS. During the period he
is a consultant to the Company, call upon, solicit or cause to be solicited with
respect to products or services similar to those of the Company, any customer of
the Company. For
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purposes hereof, a "customer of the Company" is any person or entity to which
the Company has sold or actively offered to sell its products or services during
the thirty-six month period ending on the Effective Date of this Agreement.
Nothing in this Agreement shall prohibit Xxxxx from soliciting or causing to be
solicited any person or organization with respect to products or services not
the same as or similar to those of the Company.
5.3 SOLICITATION OF EMPLOYEES. Through the period
ending May 31, 2005, solicit for employment or other affiliation, as an
employee, partner, co-owner, joint venturer, or consultant, any person who was
employed by the Company on the Agreement Effective Date and while such person is
employed by the Company.
6. CONFIDENTIAL INFORMATION.
6.1 DEFINITIONS. The term "confidential information"
includes the following categories of information, regardless of whether such
information would qualify as a "trade secret" under applicable law: (i) personal
information regarding current and former Company employees including name,
address, telephone number, email address, marital status, salary history,
benefits, disciplinary history, medical information, and any other information
in which employees have a privacy interest, but only to the extent that the
Company treats such information as confidential information and takes steps to
protect such information from unauthorized disclosure or misuse; (ii) specific
information regarding Company customers that has been developed and compiled
with the time, effort and resources of the Company and its employees, the
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names of customer contact personnel, promotional program participation patterns
and preferences of customers, promotional program participation terms, special
promotional programs, promotional program terms, conditions and pricing,
customer credit records and payment history, customer correspondence and files,
but only to the extent that the Company treats such information as confidential
information and takes steps to protect such information from unauthorized
disclosure or misuse; (iii) non-public business practices and ideas of the
Company, including sales techniques and new product ideas and plans; and (iv)
non-public financial information relating to the Company and its operations.
6.2 DUTY OF NONDISCLOSURE. Xxxxx agrees that neither
he nor any of his employees, agents, representatives, affiliates, or partners
shall, at any time, directly or indirectly, disclose or use any confidential
information of or relating to the Company that is known to Xxxxx as of the
Agreement Effective Date or confidential information which may be disclosed to
Xxxxx in the course of his consulting activities for the Company. Xxxxx hereby
acknowledges that certain confidential information is the property of the
Company or that the Company may be under a duty to prevent the disclosure
thereof to third parties, that such confidential information was made known to
Xxxxx in confidence in connection with his duties as an officer, director, and
employee of, or consultant to, the Company, and that any use of such
confidential information by Xxxxx other than for the sole benefit of the Company
would be wrongful and would cause irreparable harm. Xxxxx shall be under no
obligation to protect the confidentiality of any
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information that: (i) becomes publicly known through no breach or fault of
Xxxxx; (ii) is obtained by Xxxxx from a third party who has the right to
transfer or disclose it without breach of any obligation of confidentiality;
(iii) is disclosed by Xxxxx under legal process such as a subpoena or other
examination in the course of litigation or a public or private governmental
investigation after giving prompt notice to the Company of such subpoena or
other legal process and cooperates as the Company may reasonably request, at its
expense, to quash such proceeding; or (iv) has been disclosed by Xxxxx prior to
the Agreement Effective Date in the course of his service as an officer or
director of the Company, except for information that was disclosed under
circumstances where the recipient accepted the disclosure under a written
agreement of confidentiality.
6.3 OTHER AGREEMENTS AND OBLIGATIONS. Xxxxx
acknowledges that, as an employee, executive and director of the Company, he is
a party to various prior agreements and understandings with and for the benefit
of the Company. Such agreements and understandings shall not survive the
execution of this Agreement and the transactions contemplated hereby. Further,
the Letter Agreement shall not survive the execution of this Agreement, and will
be superseded and replaced by this Agreement.
7. INJUNCTIVE RELIEF. Xxxxx agrees and acknowledges that it
would be difficult to compensate the Company fully for damages for breach of any
of the provisions of Sections 5 and 6 hereof (other than Section 6.3).
Accordingly, Xxxxx specifically agrees that the Company will be entitled to
temporary and permanent injunctive relief to enforce the provisions of such
Sections, and that such relief may be
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granted without the necessity of posting a bond or of proving actual damages.
This provision with respect to injunctive relief will not, however, diminish the
Company's right to claim and to recover damages.
8. REPRESENTATIONS AND WARRANTIES OF XXXXX. Xxxxx hereby
represents and warrants to the Company as follows:
8.1 NO ASSIGNMENT. Xxxxx has not assigned or
transferred, or purported or agreed to assign or transfer, to any individual,
partnership, corporation, or other entity, all or any portion of his or its
right, title, or interest in and to the Employment Agreement or any of the
Released Claims.
8.2 COMPLIANCE. This Agreement and the consummation
of the transactions contemplated hereby has not and will not result in the
breach of any term or provision of, or constitute a default under, any court
order, judicial decree, lien, indenture, mortgage, deed of trust, lease
agreement, instrument, commitment, or other arrangement to which Xxxxx is a
party or by which he is bound.
9. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. As of the
Agreement Effective Date, the Company hereby represents and warrants to the
Xxxxx as follows:
9.1 AUTHORITY. The Company has the requisite
authority to enter into the transactions contemplated by this Agreement. The
execution, delivery and performance of this Agreement have been duly approved
and authorized by all necessary action by the Board of Directors of the Company.
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9.2 COMPLIANCE. This Agreement and the consummation
of the transactions contemplated by this Agreement has not and will not result
in the breach of any term or provision of, or constitute a default under, any
court order, judicial decree, lien, indenture, mortgage, deed of trust, lease,
agreement, instrument, commitment, or other arrangement to which the Company is
a party or by which he is bound.
10. LEGAL REPRESENTATION. Each of the parties hereto
represents that such party has been represented by legal counsel of his or its
own choosing.
11. NOTICES. All notices, demands and other communications
required, desired, or permitted to be given under this Agreement shall be in
writing and shall be deemed to have been given immediately if personally
delivered; twenty-four hours after being delivered to overnight delivery
couriers or sent by telecopy, e-mail, or other electronic transmitting device,
provided that the device records the date and time of successful transmission
thereof; or five days after mailing by registered or certified mail, postage
prepaid, return receipt requested, addressed in accordance with the addresses
set forth below, or to such other addresses of which notice is given pursuant to
this Section.
If to Xxxxx: Xx. Xxxxxxx Xxxxx
00000 Xxxxxxx Xxx Xxxxxx
Xx Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxx Xxxxxxx, Esq.
Xxxxxx & Xxxxxxx
Xxxxx 000
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0000Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company: Motorcar Parts & Accessories, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx, Chairman,
President & CEO
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx X. Xxxxxxx, Esq.
Motorcar Parts & Accessories, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
12. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supersedes any prior agreements, arrangements, understandings, representations,
warranties and covenants between the parties hereto, including, without
limitation, the Letter Agreement.
13. NO WAIVER. No delay or omission in the exercise of any
right or remedy shall impair such right or remedy or be construed as a waiver. A
consent to or approval of any act shall not be deemed to waive or render
unnecessary consent to or approval of any other or subsequent act. All rights of
the parties hereto are separate and cumulative, and no one of them, whether
exercised or not, will be deemed to be to the exclusion of any other rights, and
no one of them will be deemed to limit or prejudice any other legal or equitable
rights or remedies that the parties hereto may have. The parties
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hereto will not be deemed to waive (either expressly or by implication) any of
their rights or remedies under this Agreement except by a duly executed written
waiver.
14. SEVERABILITY. If any portion of this Agreement is for any
reason declared invalid or unenforceable by reason of any applicable law, the
validity of the remaining portions shall not be affected thereby and such
remaining portions shall remain in full force and effect as if this Agreement
had been executed with the invalid portion eliminated.
15. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of California in
effect from time to time. The parties agree that proper venue will be in the
Superior Court of Los Angeles County.
16. ARBITRATION OF DISPUTES. Except as otherwise provided in
this Agreement, any controversy between the parties arising out of this
Agreement shall be submitted to the American Arbitration Association for
arbitration by a sole arbitrator in Los Angeles, California. The costs of the
arbitration, including any American Arbitration Association administration fee,
the arbitrator's fee, and costs for the use of facilities during the hearings,
shall be borne equally by the parties to the arbitration. Attorneys' fees may be
awarded to the prevailing or most prevailing party at the discretion of the
arbitrator. The provisions of Sections 1282.6, 1283, and 1283.05 of the
California Code of Civil Procedure apply to the arbitration. The arbitrator
shall not have any power to alter, amend, modify or change any of the terms of
this Agreement nor to grant any
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remedy which is either prohibited by the terms of this Agreement, or not
available in a court of law.
17. ATTORNEYS' FEES. In any arbitration or other proceedings
to enforce or to interpret any part of this Agreement, or any action arising out
of the transactions or relationships that are the subject matter hereof, the
prevailing party shall be entitled to recover as an element of its costs of the
action, and not as damages, all attorneys' fees reasonably incurred in bringing
such action and in enforcing any judgment or award granted therein, all of which
shall be deemed to have accrued upon the commencement of such action. The
"prevailing party" shall be the party that is entitled to recover its costs of
the action, regardless of whether the action proceeds to final judgment. Any
judgment or order entered in such action shall contain a specific provision
providing for the recovery of attorneys' fees and costs incurred in enforcing
such judgment or order.
18. AMENDMENT. No supplement, amendment, or modification
hereof shall be valid unless it shall be in writing and signed by all parties
hereto.
19. SUCCESSORS AND ASSIGNS. Except as otherwise specifically
provided herein, all of the terms, provisions, and obligations of this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective heirs, representatives, successors and assigns.
20. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All written
representations and warranties of the parties set forth in this Agreement will
survive the consummation of the transactions contemplated by this Agreement.
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21. THIRD PARTIES. This Agreement and all conditions and
provisions hereof are intended for the sole and exclusive benefit of the parties
hereto and their respective successors and assigns, and nothing contained herein
shall be construed to give any other person or entity any legal or equitable
right, remedy, or claim under or in respect of this Agreement or any provision
hereof.
22. FURTHER ASSURANCES. Each party shall execute and deliver
all such further instruments, documents or similar materials, and shall perform
any and all acts necessary, to give full force and effect to all of the terms
and provisions of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
dates set forth opposite their names below.
Dated: June 30, 2003 /s/ Xxxxxxx Xxxxx
____________________________________
Xxxxxxx Xxxxx
Dated: June 30, 2003 Motorcar Parts & Accessories, Inc.
By: /s/ Xxxxxx Xxxxx
________________________________
Xxxxxx Xxxxx, Chairman of the Board,
President and Chief Executive Officer
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EXHIBIT A
RESIGNATION
Xxxxxxx Xxxxx
00000 Xxxxxxx Xxx Xxxxxx
Xx Xxxxxx, XX 00000
February 14, 2003
Motorcar Parts & Accessories, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxx, Chairman of the Board
Gentlemen:
This shall confirm my resignation, effective at the close of business,
California time, today, as a director, officer and from any and all other
positions and capacities with or in Motorcar Parts & Accessories, Inc. and any
of its subsidiaries and affiliates, except for the consulting services I may be
providing pursuant to the Separation Agreement and Release dated as of the date
hereof.
Sincerely,
Xxxxxxx Xxxxx
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