EXHIBIT 10.28
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT dated as of January 1, 2000, between MOTORCAR
PARTS & ACCESSORIES, INC., a New York corporation currently having an address at
0000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 (the "COMPANY"), and XXXXXXX
XXXXX, an individual residing at 00000 Xxxxxxx Xxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000 ("EMPLOYEE").
W I T N E S S E T H:
WHEREAS, Employee is the former President of Company and Employee has
significant knowledge regarding the Company's business and industry and
maintains primary relationships with the Company's principal customers (upon
which the Company is substantially dependent); and
WHEREAS, the Company desires to employ Employee upon the terms and
conditions stated herein; and
WHEREAS, Employee desires to be employed by the Company upon the terms
and conditions stated herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. EMPLOYMENT. Subject to and upon the terms and conditions contained
in this Agreement, the Company hereby agrees to employ Employee and Employee
agrees to enter the employ of the Company, for the period set forth in Paragraph
2 hereof, to render the services to the Company, its affiliates and/or
subsidiaries described in Paragraph 3 hereof.
2. TERM. Employee's term of employment under this Agreement shall
commence on the date hereof (the "COMMENCEMENT DATE") and shall continue for a
period through and including the fourth anniversary of the Commencement Date
(the "EMPLOYMENT TERM") unless extended in writing by both parties or earlier
terminated pursuant to the terms and conditions set forth herein.
3. DUTIES.
(a) Employee shall report to the Board of Directors and Chief
Executive Officer of the Company. Employee shall devote all of his working time,
attention, best efforts and abilities during regular business hours exclusively
to the service of the Company, its affiliates and subsidiaries during the term
of this Agreement. Employee's duties and responsibilities hereunder shall
include developing and maintaining the Company's relationships with existing and
future customers, advising and assisting the Company in strategic and
operational planning with respect to the Company's business and its industry
and, to the extent commensurate with his duties described above, advising,
participating in and supporting the Company in any capacity requested by the
Board of Directors or the Chief Executive Officer of the Company; provided that,
although Employee shall have no authority or responsibilities relating to
financial or accounting records or matters of the Company, he shall not be in
breach hereof by reason of his use of and advice regarding financial information
in the context of his duties described above. It is agreed that Employee shall
perform his services in the Company's Torrance, California facilities, or any
other facilities mutually agreeable to the parties; provided that he shall
travel on behalf of and as reasonably required by the Company to the extent
consistent with past practice, unless mutually agreed otherwise by the parties.
(b) Employee agrees to abide by all By-laws and applicable policies
of the Company promulgated from time to time by the Board of Directors of the
Company.
4. COMPENSATION. For the performance of the duties and services to be
performed by Employee hereunder, the Company agrees to pay Employee (i) a salary
("Salary") of Three Hundred Thousand Dollars ($300,000) per year and (ii) a
quarterly bonus ("Bonus") in accordance with Schedule 4 attached hereto.
5. BUSINESS EXPENSES. Employee shall be reimbursed for, and entitled to
advances (subject to repayment to the Company if not actually incurred by
Employee) with respect to, only those business expenses incurred by him which
are reasonable and necessary for Employee to perform his duties under this
Agreement in accordance with policies established from time to time by the
Company.
6. BENEFITS.
(a) During the Employment Term, Employee shall be entitled to such
disability, health and medical benefits and be entitled to participate in such
retirement plans or programs as generally made available to him and all senior
employees of the Company as of December 1, 1999 pursuant to the policies of the
Company; PROVIDED THAT (i) the foregoing shall only apply to the extent that
Employee is eligible for such benefits or participation pursuant to the
applicable benefit plans or program without additional expense to the Company
beyond that customarily incurred on behalf of other participants in the
respective plans or programs and (ii) Employee shall be required to comply with
the conditions attendant to coverage by such plans or programs. Employee shall
be entitled to three weeks paid vacation each year during the Employment Term at
such times as do not, in the opinion of the Board of Directors, interfere with
Employee's performance of his duties hereunder. The Company may withhold from
any benefits payable to Employee all federal, state, local and other taxes and
amounts as shall be permitted or required pursuant to law, rule or regulation.
All of the benefits to which employees of the Company generally may be entitled
may be changed from time to time or withdrawn at any time in the sole discretion
of the Company.
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(b) Employee shall be entitled to receive the sum of One Thousand
Five Hundred Dollars ($1,500) per month as an automobile allowance provided at
the expense of the Company from the Commencement Date and during the Employment
Term. Notwithstanding the foregoing, the Company may, at its option, elect to
provide Employee an automobile of the make, model and year mutually agreeable to
the Company and Employee, all costs of which associated with insurance, fuel,
oil, repairs, maintenance and other expenses shall be the responsibility of the
Company, in lieu of the above described automobile allowances, all as may be
mutually agreed between Employee and the Company.
(c) Employee shall be entitled to receive the sum of Twelve Thousand
Five Hundred Dollars ($12,500) per year as an allowance for the purpose of
obtaining life insurance on the lives of Employee and his spouse, which
insurance shall be in lieu of the existing split dollar life insurance policy on
the lives of such persons, which existing policy shall be terminated and any
cash value thereof returned to the Company.
7. DEATH AND DISABILITY.
(a) The Employment Term shall terminate on the date of Employee's
death, in which event Employee's estate shall be entitled to receive Employee's
Salary, Bonus and reimbursable expenses that have been accrued through the date
of death. Employee's estate will not be entitled to any other compensation upon
termination of this Agreement pursuant to this Section 7(a).
(b) If, during the Employment Term, Employee, because of physical or
mental illness or incapacity, shall become substantially unable to perform the
duties and services required of him under this Agreement for a period of 90
consecutive days or 120 days in the aggregate during any one-year period the
Company may, upon at least ten (10) days' prior written notice given at any time
after the expiration of such 90 or 120-day period, as the case may be, to
Employee of its intention to do go, terminate this Agreement as of such date
which is the date 30 days after the date of such notice. In case of such
termination, Employee shall be entitled to receive Employee's Salary, Bonus and
reimburseable expenses that have been accrued through the date of termination.
Employee will not be entitled to any other compensation upon termination of this
Agreement pursuant to this Paragraph 7(b). In the event of any dispute regarding
the existence of Employee's substantial inability to perform the duties and
services required of him hereunder, the matter will be resolved by the
determination of a majority of three physicians qualified to practice medicine
in California, one to be selected by each of Employee and the Company and the
third to be selected by the two designated physicians. For this purpose,
Employee will submit to appropriate medical examinations.
8. TERMINATION.
(a) The Company may terminate this Agreement for Cause (as
hereinafter defined) and Employee may resign without cause. Upon such
termination, the Company shall be
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released from any and all further obligations under this Agreement, except
that the Company shall be obligated to provide Employee with Employee's
Salary and reimbursable expenses that have been accrued through the date of
such termination. Employee will not be entitled to any other compensation
upon termination of this Agreement pursuant to this Paragraph 8(a).
(b) As used herein, the term, "CAUSE" shall mean: (i) the willful
failure of Employee to perform his duties pursuant to Paragraph 3 hereof, which
failure is not cured by Employee within 20 days following written demand for
substantial performance from the Company, which demand identifies the manner in
which the Company believes that Employee has not performed such duties and the
steps required to cure such failure to perform; (ii) any other material breach
of this Agreement by Employee, including any of the material representations or
warranties made by Employee, which breach has not ceased within 20 days after
written notice thereof has been delivered to Employee by the Company, which
notice identifies in reasonable detail the manner in which the Company believes
that Employee has breached this Agreement and the steps required to cure such
breach, if applicable; (iii) Employee shall intentionally and willfully engage
in misconduct toward the Company which is materially injurious to the Company;
or (iv) the conviction of Employee of, or the entering of a plea of nolo
contendere by Employee with respect to, a felony.
(c) In the event that the Company terminates, constructively or
otherwise, this Agreement without Cause, Employee shall not be required to
mitigate the amount of any damages to which he would be entitled to recover as a
result thereof by seeking employment otherwise, nor shall the amount of any such
damages be reduced by any compensation earned by Employee as the result of
consulting with or employment by another entity.
9. TERMINATION FOR GOOD REASON.
(a) Employee may voluntarily terminate this Agreement for Good
Reason. For purposes of this Agreement, "Good Reason" shall mean, without
Employee's express written consent, the occurrence after a Change in Control, as
defined below, of the Company of any of the following circumstances, such
circumstances are fully corrected prior to the Termination Date (as hereinafter
defined) specified in the Notice of Termination given in respect thereof:
(i) the assignment to Employee of any duties substantially
inconsistent with the duties set forth in Paragraph 3 hereof;
(ii) a reduction by the Company in Salary as in effect on the
date hereof or as the same may be increased from time to time except for
across-the-board salary reductions similarly affecting all key personnel of the
Company and all key personnel of any person in control of the Company;
(iii) the relocation of the Company's offices at which Employee
is principally engaged immediately prior to the date of the Change in Control of
the Company to a
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location more than 35 miles from such location, or the Company requiring
Employee to be based anywhere other than the Company's offices at such
location except for required travel on the Company's business to an extent
substantially consistent with Employee's business travel obligations
immediately prior to the Change in Control;
(iv) the failure by the Company to pay to Employee any portion
of Employee's current compensation or to pay to Employee any portion of an
installment of deferred compensation under any deferred compensation program of
the Company, now or hereafter in existence, within seven (7) days of the date
such compensation is due;
(v) the failure by the Company to continue to provide Employee
with benefits substantially similar to those enjoyed by Employee under any of
the Company's life insurance, medical, accident, disability or other benefit or
plans, if any, in which Employee was participating at the time of the Change in
Control of the Company, the taking of any action by the Company which would
directly or indirectly materially reduce any of such benefits, unless such
failure or taking of action similarly affects all key personnel of the Company;
or
(vi) the failure of the Company to obtain a satisfactory
agreement from any successor to assume and agree to perform this Agreement, as
contemplated in Paragraph 19 hereof; or
(b) This Agreement will not be considered to have been terminated by
the Company if the employment arrangement contemplated hereby is discontinued
due to the sale of a facility of the Company in which Employee works if Employee
is offered substantially equivalent duties by the purchaser of the facility (or
an affiliated company of the purchaser) and the purchaser (or an affiliated
company) agrees to assume the Company's responsibilities under this Agreement
with respect to Employee as if the purchaser (or an affiliated company) were the
Company hereunder and no such sale had occurred.
(c) Any termination by the Company or by Employee pursuant to this
Agreement shall be communicated by written Notice of Termination to the other
party hereto in accordance with Paragraph 14. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon, and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Employee's employment under the provisions so indicated.
(d) "Termination Date" shall mean, if Employee's employment is
terminated pursuant to Subparagraph 9(a) hereof, the date specified in the
Notice of Termination (which, in the case of a termination for Good Reason shall
not be less than fifteen (15) nor more than sixty (60) days from the date such
Notice of Termination is given); provided, however, that if within fifteen (15)
days after any Notice of Termination is given, or, if later, prior to the
Termination Date (as determined without regard to this proviso), the party
receiving such Notice of Termination notifies the other party that a dispute
exists concerning the termination, then the
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Termination Date shall be the date on which the dispute is finally
determined, either by mutual written agreement of the parties or by a final
judgment, order or decree of a court of competent jurisdiction (which is not
appealable or with respect to which the time for appeal therefrom has expired
and no appeal has been perfected); and provided, further, that the
Termination Date shall be extended by a notice of dispute only if such notice
is given in good faith and the party giving such notice pursues the
resolution of such dispute with reasonable diligence. Notwithstanding the
pendency of any such dispute, the Company will continue to pay the Salary and
Bonus in effect when the notice giving rise to the dispute was given and
continue Employee as a participant in all compensation, benefit and insurance
plans in which Employee was participating when the notice giving rise to the
dispute was given, until the dispute is finally resolved in accordance with
this Subsection.
(e) For purposes of this Agreement, a "Change in Control" shall have
occurred if:
(i) any "person", as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
(other than the Company, any trustee or other fiduciary holding securities under
an employee benefit plan of the Company, any corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, Xxx Xxxxx, Xxxxxxx Xxxxx
or any affiliate or family relative of either of them, or any trust for the
benefit thereof), individually or as a group, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 30% or more of the
combined voting power of the Company's then outstanding securities;
(ii) the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than (A) a merger
or consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 80% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation or (B) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no
"person" (as hereinabove defined) acquires more than 30% of the combined voting
power of the Company's then outstanding securities; or
(iii) the shareholders of the Company approve an agreement for
the sale or disposition by the Company of all or substantially all of the
Company's assets.
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10. COMPENSATION AND CERTAIN OTHER PROVISIONS IN THE EVENT OF
TERMINATION OF EMPLOYMENT FOR GOOD REASON.
(a) If Employee shall voluntarily terminate this Agreement pursuant
to the provisions of Subparagraph 9(a), then the Company, as liquidated damages
or severance pay or both, shall pay Employee (i) Salary through the Termination
Date at the annual rate in effect immediately prior to the Termination Date and
(ii) three times the amount of such annual rate (the "Termination
Compensation"). For the purposes of the foregoing payments, the foregoing
annual rate shall be the rate paid to Employee without regard to any purported
reduction or attempted reduction of such rate by the Company. The amount
specified in clauses (i) and (ii) shall be payable in a lump sum within ten (10)
days after the Termination Date.
(b) In the event that, by reason of section 280G of the Internal
Revenue Code of 1986 (the "Code"), any payment or benefit received or to be
received by Employee in connection with a Change in Control of the Company or
the termination of this Agreement (whether payable pursuant to the terms of this
Agreement ("Contract Payments") or any other plan, arrangement or agreement with
the Company, its successors, any person whose actions result in a Change in
Control or any corporation ("Affiliate") affiliated (or which, as a result of
the completion of the transactions causing a Change in Control will become
affiliated) with the Company within the meaning of section 1504 of the Code
(collectively with the Contract Payments, "Total Payments")), would not be
deductible (in whole or in part) by the Company, an Affiliate or other person
making such payment or providing such benefit, the Termination Compensation
shall be reduced (and, if the Termination Compensation is reduced to zero, other
Contract Payments shall first be reduced and other Total Payments shall
thereafter be reduced) until no portion of the Total Payments is not deductible
by reason of section 280G of the Code. For purposes of this limitation, (i) no
portion of the Total Payments the receipt or enjoyment of which Employee shall
have effectively waived in writing prior to the date of payment of the
Termination Compensation shall be taken into account, (ii) no portion of the
Total Payments shall be taken into account which in the opinion of tax counsel
selected by the Company's independent auditors and acceptable to Employee does
not constitute a "parachute payment" within the meaning of section 280G(b)(2) of
the Code (without regard to subsection (A)(ii) thereof), (iii) the Termination
Compensation (and, thereafter, other Contract Payments and other Total Payments)
shall be reduced only to the extent necessary so that the Total Payments (other
than those referred to in clause (i) and (ii)) in their entirety constitute
reasonable compensation for services actually rendered within the meaning of
section 280G(b)(4) of the Code, in the opinion of the tax counsel referred to in
clause (ii), and (iv) the value of any noncash benefit or any deferred payment
or benefit included in the Total Payments shall be determined by the Company's
independent auditors in accordance with the principles of sections 280G(d)(3)
and (4) of the Code.
(c) Employee shall not be required to mitigate the amount of any
payment provided for in this Paragraph 10 by seeking employment or otherwise,
nor shall the amount of any payment or benefit provided for in this Paragraph 10
be reduced by any compensation earned
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by Employee as the result of consultancy with or employment by another
entity, by retirement benefits, by offset against any amount claimed to be
owed by Employee to the Company, or otherwise.
(d) Any reduction in Termination Compensation pursuant to
Subparagraph 10(b) shall, in the event of any question, be determined jointly by
the independent public accountants of the Company and a firm of independent
public accountants selected by Employee, and in the event such accountants am
unable to agree on a resolution of the question, such reduction shall be
determined by a third firm of independent public accountants selected jointly
by the foregoing two firms and shall be binding on Employee and the Company. The
expense for any such determination shall be borne by the Company.
11. DISCLOSURE OF INFORMATION AND RESTRICTIVE COVENANT. Employee
acknowledges that he has been and will be in a confidential relationship with
the Company and will have access to confidential information and trade secrets
of the Company, its subsidiaries and affiliates. Confidential information and
trade secrets include, but are not limited to, customer, supplier and client
lists, price lists, marketing, distribution and sales strategies and procedures,
operational and equipment techniques, business plans and systems, quality
control procedures and systems, special projects and technological research,
including projects, research and reports for any entity or client or any
project, research, report or the like concerning sales or manufacturing or new
technology, employee compensation plans and any other information relating
thereto, and any other records, files, drawings, inventions, discoveries,
applications, processes, data and information concerning the business of the
Company, other than such of the foregoing which (i) is in the public domain or
known in the industry of the Company other than by any action on the part of
Employee, (ii) is disclosed to Employee by a third party who, to Employee's
knowledge, was not prohibited by any fiduciary, legal, contractual or other duty
from disclosing such information, or (iii) was known to Employee before its
disclosure by the Company. Employee agrees that in consideration of the
execution of this Agreement by the Company, except in any way with respect to
foreign affiliates of the Company as of the date hereof:
(a) Employee will not, during the Employment Term or at any time
thereafter, use, or disclose to any third party, trade secrets or confidential
information of the Company, including, but not limited to, confidential
information or trade secrets belonging or relating to the Company, its
subsidiaries, affiliates, customers and clients or proprietary processes or
procedures of the Company, its subsidiaries, affiliates, customers and clients.
Proprietary processes and procedures shall include, but shall not be limited to,
all information which is known or intended to be known only to employees of the
Company, its respective subsidiaries and affiliates or others in a confidential
relationship with the Company or its respective subsidiaries and affiliates
which relates to business matters.
(b) Employee will not, during the term of this Agreement and for a
period of two (2) years thereafter, directly or indirectly, under any
circumstance other than at the direction and for the benefit of the Company,
engage in or participate in any business activity, including,
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but not limited to, acting as a director, officer, employee, agent,
independent contractor, partner, Employee, licensor or licensee, franchisor
or franchisee, proprietor, syndicate member, shareholder or creditor or with
a person having any other relationship with any other business, company, firm
occupation or business activity, in any geographic area within the United
States that is, directly or indirectly, competitive with any business
completed by the Company or any of its subsidiaries or affiliates during the
term of this Agreement or thereafter. Should Employee own 5% or less of the
issued and outstanding shares of a class of securities of a corporation the
securities of which are traded on a national securities exchange or in the
over-the-counter market, such ownership shall not cause Employee to be deemed
a shareholder under this Subparagraph 11(b).
(c) Employee will not, during the term of this Agreement and for a
period of two (2) years thereafter, on his behalf or on behalf of any other
business enterprise, directly or indirectly, under any circumstance other than
at the direction and for the benefit of the Company, solicit or induce any
creditor, customer, supplier, officer, employee or agent of the Company or any
of its subsidiaries or affiliates to sever its relationship with or leave the
employ of any of such entities.
(d) This Paragraph 11 and Paragraphs 12 and 13 hereof shall survive
the expiration or termination of this Agreement for any reason.
(e) It is expressly agreed by Employee that the nature and scope of
each of the provisions set forth above in this Paragraph 11 are reasonable and
necessary. If, for any reason, any aspect of the above provisions as it applies
to Employee is determined by a court of competent jurisdiction to be
unreasonable or unenforceable, the provisions shall only be modified to the
minimum extent required to make the provisions reasonable and/or enforceable, as
the case may be. Employee acknowledges and agrees that his services are of a
unique character and expressly grants to the Company or any subsidiary,
successor or assignee of the Company, the right to enforce the provisions above
through the use of all remedies available at law or in equity, including, but
not limited to, injunctive relief.
12. REMEDY. It is mutually understood and agreed that Employee's
services we special, unique, unusual, extraordinary and of an intellectual
character giving them a peculiar value, the loss of which cannot be reasonably
or adequately compensated in damages in an action at law. Accordingly, in the
event of any breach of this Agreement by Employee, including, but not limited
to, the breach of the provisions of Paragraph 11 hereof, the Company shall be
entitled to equitable relief by way of injunction or otherwise, in addition to
damages the Company may be entitled to recover. If any action at law or equity
is necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and disbursements
in addition to any other relief to which that party may be entitled.
13. REPRESENTATIONS AND WARRANTIES OF EMPLOYEE. In order to induce the
Company to enter into this Agreement, Employee hereby represents and warrants to
the Company that
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Employee has the legal capacity and right to execute and deliver this
Agreement and to perform all of his obligations hereunder.
14. NOTICES. All notices given hereunder shall be in writing and
shall be deemed effectively given five days after being mailed, if sent by
registered or certified mail, return receipt requested, or on the next
business day if sent by overnight courier, and in each case addressed to
Employee at his address set forth on the first page of this Agreement or to
any other address that Employee may designate in writing to the Company and
to the Company at its address set forth on the first page of this Agreement,
Attention: Chief Executive Officer, with a copy to Xxxxxx Xxxxxx Flattau &
Klimpl, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxx X. Xxxxx, Esq., or at such address as such party shall have designated
by a notice given in accordance with this Paragraph 14, or when actually
received by the party for whom intended, if sent by any other means.
15. INDEMNIFICATION.
(a) CERTAIN TERMS DEFINED. As used in this Paragraph 15, the
following terms shall have the following meanings:
(i) The term "Action" shall mean any action or proceeding,
whether civil, criminal, administrative or investigative, and including one by
or in the right of the Company or by or in the right of any other Entity which
Employee served from and after the date hereof in any capacity at the request of
the Company.
(ii) The term "Entity" shall mean any corporation of any type or
kind, domestic or foreign, or any partnership, joint venture, trust employee
benefit plan or other enterprise.
(b) RIGHT TO INDEMNIFICATION. Subject to the terms set forth in this
Agreement the Company shall indemnify Employee if Employee is made, or is
threatened to be made, a party to any Action by reason of the fact that Employee
(or Employee's testator or interstate) is or was an employee of the Company
hereunder, against judgments, fines, amounts paid in settlement and reasonable
expenses, including attorneys' fees, incurred as a result of such Action or any
appeal therein.
(c) LIMITATION ON INDEMNIFICATION. Employee shall not be entitled to
indemnification under Subparagraph 15(b) if a judgment or other final
adjudication adverse to Employee establishes that (i) Employee's acts were
committed in bad faith or were the result of active and deliberate dishonesty
and, in either case, were material to the cause of action so adjudicated, or
(ii) Employee personally gained in fact a financial profit or other advantage to
which Employee was not legally entitled.
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(d) ADVANCES OF EXPENSES.
(i) At the written request of Employee, the Company will advance
to Employee the expenses (including attorneys' fees) incurred by Employee in
defending any Action in advance of the final disposition of such Action.
(ii) Employee hereby agrees and undertakes to repay such
advanced amounts (or appropriate portions thereof) as to which it ultimately is
determined that Employee was not entitled.
(e) PAYMENT BY COMPANY. The Company shall pay the indemnification
requested under Subparagraph 15(b) and advance the expenses requested under
Subparagraph 15(d) promptly following receipt by the Company of Employee's
written request therefor and, in any event, no later than thirty (30) days
after such receipt (in the case of requested indemnification) or fifteen (15)
days after such receipt (in the case of requested advanced expenses).
(f) NON-EXCLUSIVITY. Nothing contained in this Agreement shall limit
the right to indemnification and advancement of expenses to which Employee would
be entitled by law in the absence of this Agreement, or shall be doomed
exclusive of any other rights to which Employee in seeking indemnification or
advancement of expenses may have or hereafter be entitled under any law,
provision of the Certificate of Incorporation, By-Law, agreement approved by or
resolution of the Board, or resolution of shareholders of the Company.
(g) SUBROGATION.
(i) The Company shall not be liable under this Agreement to make
any payment in connection with any claim made against Employee to the extent
Employee has otherwise actually received payment (under any insurance policy,
By-Law or otherwise) of the amounts otherwise subject to indemnification or
expense advance under this Agreement.
(ii) In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of Employee other than from the Company, and Employee shall execute all
papers required and shall do everything that may be necessary to secure such
rights, including the execution of such documents necessary to enable the
Company effectively to bring suit to enforce such rights.
(h) NOTICE OF CLAIM. As a condition precedent to the right to be
indemnified under this Agreement, Employee shall give the Company written notice
as soon as practicable of any claim made against Employee for which
indemnification or expense advances will or could be sought under this
Agreement. In addition, Employee shall give the Company such information and
cooperation as the Company reasonably may require.
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(i) CONTINUITY OF RIGHTS.
(i) The right of Employee to indemnification and advancement of
expenses under this Agreement shall (A) continue after Employee has ceased to
serve in a capacity which would entitle Employee to indemnification or
advancement of expenses pursuant to this Agreement with respect to acts or
omissions occurring prior to such cessation, (B) inure to the benefit of the
heirs, executors and administrators of Employee, (C) apply with respect to acts
or omissions occurring prior to the execution and delivery of this Agreement to
the fullest extent permitted by law and (D) survive any restrictive amendment or
termination of this Agreement with respect to events occurring prior thereto.
(j) PROCEEDINGS INITIATED BY EMPLOYEE. Employee shall not be
entitled to indemnification or advancement of expenses under this Agreement
with respect to any Action initiated by Employee, but shall be entitled to
indemnification and advancement of expenses with respect to any counterclaim
or third-party claim in any such Action.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding of the parties with respect to its subject matter and no change,
alteration or modification hereof may be made except in writing signed by the
parties hereto. Any prior or other agreements, promises, negotiations or
representations not expressly set forth in this Agreement are of no force or
effect.
17. SEVERABILITY. If any provision of this Agreement shall be
unenforceable under any applicable law, then notwithstanding such
unenforceability, the remainder of this Agreement shall continue in full force
and effect.
18. WAIVERS, MODIFICATIONS, ETC. No amendment, modification or waiver
of any provision of this Agreement shall be effective unless the same shall be
in writing and signed by each of the parties hereto, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
19. ASSIGNMENT. Neither this Agreement nor any of Employee's rights,
powers, duties or obligations hereunder, may be assigned by Employee. This
Agreement shall be binding upon and inure to the benefit of Employee and his
heirs and legal representatives and the Company and its successors and assigns.
Successors of the Company shall include, without limitation, any corporation or
corporations acquiring, directly or indirectly, all or substantially all of the
assets of the Company, whether by merger, consolidation, purchase, lease or
otherwise, and such successor shall thereafter be deemed "the Company" for the
purpose hereof; provided, that, solely for purposes of this Agreement, one ouch
successor shall have assumed and agreed to perform the obligations of the
Company under this Agreement, whether expressly, implicitly or by operation of
law, and shall have, at the time of such transaction, financial creditworthiness
at least equal to that of the Company as determined in the reasonable judgment
of the Board of Directors.
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20. APPLICABLE LAW. This Agreement shall be deemed to have been made,
drafted, negotiated and the transactions contemplated hereby consummated and
fully performed in the State of California and shall be governed by and
construed in accordance with the laws of the State of California, without regard
to the conflicts of law rules thereof. Nothing contained in this Agreement shall
be construed so as to require the commission of any act contrary to law, and
whenever there is any conflict between any provision of this Agreement and any
statute, law, ordinance, order or regulation, contrary to which the parties
hereto have no legal right to contract, the latter shall prevail, but in such
event any provision of this Agreement so affected shall be curtailed and limited
only to the extent necessary to bring it within the legal requirements.
21. JURISDICTION AND VENUE. It is hereby irrevocably agreed that all
disputes or controversies between the Company and Employee arising out of, in
connection with or relating to this Agreement shall be exclusively heard,
settled and determined by arbitration to be held in the City of Los Angeles,
County of Los Angeles, in accordance with the Commercial Arbitration
Rules of the American Arbitration Association to be conducted before a single
arbitrator, who shall be either an attorney or retired judge licensed to
practice law in the State of California. The parties also agree that judgment
may be entered on the arbitrator's award by any court having jurisdiction
thereof and the parties consent to the jurisdiction of any court located in the
City of Los Angeles, County of Los Angeles for this purpose.
22. FULL UNDERSTANDING. Employee represents and agrees that he fully
understands his right to discuss all aspects of this Agreement with his private
attorney, that to the extent, if any that he desired, he availed himself of this
right, that he has carefully read and fully understands all of the provisions of
this Agreement, that he is competent to execute this Agreement, that his
agreement to execute this Agreement has not been obtained by any duress and that
he freely and voluntarily enters into it, and that he has read this document in
its entirety and fully understands the meaning, intent and consequences of this
document which is that it constitutes an employment agreement.
23. ACCESS. Employee shall have access, upon reasonable notice, during
normal business hours and subject to reasonable supervision, to documents
(including computer generated documents) at the offices of the Company necessary
for his defense of presently existing class action lawsuits or any inquiry or
investigation by the United States Securities and Exchange Commission, or any
related inquiry by state or other federal agencies, except such documents as may
be subject to privilege of any kind and except where such access may, in the
opinion of counsel to the Company, adversely affect the Company's defense to any
such lawsuits, inquiries or investigations.
24. COUNTERPARTS. This Agreement my be executed in any number of
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
MOTORCAR PARTS & ACCESSORIES, INC.
By:
-------------------------------------
Name:
Title:
-------------------------------------
XXXXXXX XXXXX
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SCHEDULE 4
INCENTIVE BONUS PLAN
Employee shall be paid an incentive bonus equal to five percent of the
pre-tax income (without giving effect to any tax on such income, whether actual
or offset by loss carryovers) earned by the Company in each fiscal year;
provided that no bonus shall be payable for any such year unless and until the
amount of such pre-tax income in such year shall be at least $2 million, without
carryover from year to year.
Incremental portions of the bonus would be paid on a quarterly basis in
amounts such that 75% of the bonus (based on such pre-tax income reflected on
the financial statements of each of the first three fiscal quarters as reviewed
by the Company's independent auditors) would have been paid. Each quarterly
payment would be paid within 30 days of the completion of the review of the
applicable financial statements by the Company's auditors and the balance of the
annual bonus would be paid within 30 days of the completion of the audit of the
fiscal year-end financial statements by the auditors, with the year-end amount
to be subject to repayment or off-set against any other amounts payable pursuant
to this Agreement to the extent that such quarterly payments result in an
overpayment of incentive bonus for such entire year.
Parties agree that this bonus plan will be reviewed after the
completion of fiscal 2001 and may be modified as mutually agreed.
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