EXECUTIVE EMPLOYMENT AGREEMENT
The
Executive Employment Agreement (the “Agreement”) is effective as of December 15,
2007, (the “Effective Date”) and is between Global Automotive Supply, Inc, a
Nevada Corporation (the “Company”) and Xxxxxx X. XxXxxxxxxxx, (the
“Employee”).
RECITALS:
WHEREAS,
the Company desires that the Employee become the President and Chief Executive
Officer of the Company.
WHEREAS,
the Employee desires to become the President and Chief Executive
Officer of the Company.
NOW,
THEREFORE, in consideration of the promises and mutual agreements herein set
forth, the parties hereby agree as follows:
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1.
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Term
of Employment. The period of employment of Employee by the Company under
the Agreement (the Employment Period) shall be deemed to have commenced on
the Effective Date and shall continue until December 31, 2012, unless
terminated sooner in accordance with the terms hereof.
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2.
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Duties.
During his employment by the Company, the Employee shall perform such
duties as are consistent with the role of President and CEO of the
Company, including executive oversight and management of all business and
financial operations and execution of all growth and business plans
established by the Company and the Board from time to time. Unless
otherwise agreed by the Company and Employee, Employee’s principal place
of business with the Company shall be at 0000 Xxxxxxx Xx., Xxx. 000,
Xxxxxxx, Xx. 00000. Employee acknowledges and agrees that Employee owes a
fiduciary duty of loyalty, fidelity and allegiance to act at all times in
the best interests of the Company and to do no act that would injure the
business, interests, or reputation of the Company or any of its
Affiliates.
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3.
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Compensation.
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(a)
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Base
Salary. The Company shall pay to Employee a base salary of
$220,000 per year. However, until such time as the Company closes on it’s
public merger and capital raise, Employee shall accept a lesser interim
salary of $150,000 per year. It is anticipated that the closing
of this merger and/or financing will occur the first week
of February, 2008, and Employee shall begin drawing his regular
salary at that time. There shall be no accrual up until that time of the
difference. Salary will be increased to $250,000 as soon as the
compensation committee of the board of directors votes that company has
sufficient sales and profit to afford it in keeping with industry
standards.
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(b)
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Incentive
Bonus. In addition to the Base Salary, during the Term of the Agreement,
Employee may, in the sole discretion of the Board of Directors, be awarded
an incentive bonus based upon the performance of the Company in all of
it’s business objectives, as determined by the Board of Directors from
time to time in it’s sole discretion.
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(c)
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Equity
Compensation and Stock Options. The Employee shall be entitled to equity
in the Company equal to 5% of the outstanding common shares of the Company
once the public merger and private financing the Company is currently
undertaking is closed. This equity shall vest quarterly at ¼ of
1% each quarter for the five years of this Employment Agreement. However,
in the event that the Company is sold during the term of this Agreement,
at a profit (ie. a higher valuation than in the initial post money public
pricing) the entire remaining equity component of this Agreement shall
fully vest in Employee. Employee shall be eligible to
participate in any approved stock option programs implemented in the
future.
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(d)
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Housing and Relocation
Allowance. Employee shall receive a temporary Housing Allowance
of $10,000, payable at the rate of $2,000 per month beginning
February, 2008 and continuing for a period of 5 months
thereafter. Relocation costs to be paid by the company at
cost and to include normal and reasonable moving
expenses. Mortgage points and real estate fees are not
covered.
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e)
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Employee will
receive the use of an automobile, Audi A-8 or
equivalent. The value of the vehicle will be taxable in
accordance with IRS regulations.
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f)
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Employee
will also receive, at no cost to him, full health, dental and drug
coverage for you and your family.
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g)
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Board
of Directors Compensation. Employee will serve as Chairman of
the Board during the term of his employment and shall not be compensated
for that service, as it shall be included in the compensation set forth
herein, regardless of whether the Company compensates other
Directors
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4.
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Vacation.
Employee shall be entitled to a reasonable vacation(s) during each year of
her employment under the Agreement. Employee to take vacation as his
duties and schedule permits.
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5.
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Reimbursement
For Expenses. The Company shall reimburse the Employee within 30 days of
the submission of appropriate documentation, and in no event later than
the last day of the calendar year following the year in which an expense
was incurred, for all reasonable and
approved travel and entertainment expenses and
other disbursements incurred by her for or on behalf of the Company in the
course and scope of her employment under the Agreement.
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6.
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Remedies
for Breach. In addition to the rights and remedies provided in
Section 7, and without waiving the same if Employee breaches, or
threatens to breach, any of the provisions of Sections 9 or 10, the
Company shall have the following rights and remedies, in addition to any
others, each of which shall be independent of the other and severally
enforceable:
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(a)
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The
right and remedy to have such provisions specifically enforced by any
court having equity jurisdiction. Employee specifically acknowledges and
agrees that any breach or threatened breach of the provisions of
Sections 9 or 10 hereof will cause irreparable injury to the Company
and that money damages will not provide an adequate remedy to the Company.
Such injunction shall be available without the posting of any bond or
other security. If the Employee is determined to have breached any
provision of Sections 9 or 10 the court or arbitrators shall extend
the effect of the non-competition provisions for an amount of time equal
to the time the Employee was in breach thereof.
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(b)
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(Intentionally
Blank)
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(c)
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Upon
discovery by the Company of a breach or threatened breach of
Sections 9 or 10, the right to immediately suspend payments to
Employee under Section 3 or 8(b) pending a resolution of the
dispute.
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(d)
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The
right to terminate Employee’s employment pursuant to
Section 7.
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7.
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Termination
of Agreement.
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(a)
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Death.
The Agreement shall automatically terminate upon the death of
Employee.
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(b)
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Disability.
If, as a result of Employee’s incapacity due to physical or mental
illness, Employee shall have been substantially unable, either with or
without reasonable accommodation, to perform her duties hereunder for an
entire period of six (6) consecutive months, and within thirty
(30) days after written Notice of Termination is given after such six
(6) month period, Employee shall not have returned to the substantial
performance of her duties on a full-time basis, the Company shall have the
right to terminate Employee’s employment hereunder for Disability, and
such termination in and of itself shall not be, nor shall it be deemed to
be, a breach of the Agreement. Any dispute between the Employee and the
Company regarding whether Employee has a Disability shall be determined in
writing by a qualified independent physician mutually acceptable to the
Employee and the Company. If the Employee and the Company cannot agree as
to a qualified independent physician, each shall appoint a physician and
those two physicians shall select a third who shall make such
determination in writing. The determination of Disability made in writing
to the Company and Employee shall be final and conclusive for all purposes
of the Agreement. Employee acknowledges and agrees that a request by the
Company for such a determination shall not be considered as evidence that
the Company regarded the Employee as having a
Disability.
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(c)
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Termination
By Company For Cause. The Company may terminate the Agreement upon written
notice to Employee at any time for “Cause” in accordance with the
procedures provided below; provided, however, that
the Company may instead give the Employee a written notice that it has
elected to place the Employee on “garden leave” for a period of up to 90
days and that the Agreement will terminate on the date
immediately following the end of such garden leave period. If the Company
elects to place the Employee on garden leave, the Company may during the
period immediately preceding such termination date in its absolute
discretion direct the Employee (i) to perform only such of her duties
as the Company may direct; and/or, (ii) to refrain from contacting
any customers, clients, advertisers, suppliers, agents, professional
advisors, brokers or employees of the Company or any of its Affiliates (as
defined in Section 12(b)(iii)); and/or, (iii) not to enter all
or any premises of the Company or any of its Affiliates and/or;
(iv) to immediately resign without claim for compensation from office
as director of the Company and any of its Affiliates and from any other
office held by him in the Company or any of its
Affiliates.
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(i)
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During
any period when the provisions of the Section 7(c) are invoked, the
Employee’s salary and other contractual benefits and compensation
(including the vesting and exercisability of any equity awards) will
continue to be paid or provided by the Company and the Employee will
continue to comply without exception with all the Employee’s obligations
under the Agreement. Notwithstanding anything herein to the contrary, the
Company’s invocation of the provisions of the Section 7(c) shall
not constitute Good Reason and the Company shall not be obligated to
make any new awards under the Company’s Bonus Plan or equity compensation
plans (other than awards, if any, due prior to the date that the Employee
ceases to perform substantial duties for the Company pursuant to the
Section 7(c)) during any period when the Employee is performing no
substantial duties for the Company pursuant to the
Section 7(c).
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(d)
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For
purposes of the Agreement, “Cause” shall mean:
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(i)
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the
material breach of any provision of the Agreement by Employee which has
not been cured within five business (5) days after the Company
provides notice of the breach to Employee; provided, however, if the act
or omission that is the subject of such notice is substantially similar to
an act or omission with respect to which Employee has previously received
notice and an opportunity to cure, then no additional notice is required
and the Agreement may be terminated immediately upon the Company’s
election and written notice to Employee);
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(ii)
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the
entry of a plea of guilty or judgment entered after trial finding Employee
guilty of a crime punishable by imprisonment in excess of one year
involving moral turpitude (meaning a crime that includes the commission of
an act of gross dishonesty or bad morals);
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(iii)
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willfully
engaging by Employee in conduct that the Employee knows or reasonably
should know is detrimental to the reputation, character or standing or
otherwise injurious to the Company or any of its shareholders, direct or
indirect subsidiaries and Affiliates, monetarily or
otherwise;
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(iv)
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without
limiting the generality of Section 7(c)(i), the breach or threatened
breach of any of the provisions of Sections 9, 10 or 11;
or
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(v)
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a
ruling in any state or federal court or by an arbitration panel that the
Employee has breached the provisions of a non-compete or non-disclosure
agreement, or any similar agreement or understanding which would in any
way limit, as determined by the Board of Directors of the Company, the
Employee’s ability to perform under the Agreement now or in the
future.
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(e)
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Termination
By Company Without Cause. The Company may terminate the Agreement at any
time, and for any reason, by providing at least thirty (30) days
written notice to Employee.
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(f)
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Termination
By Employee With Good Reason. Employee may terminate his employment with
good reason anytime after Employee has actual knowledge of the occurrence,
without the written consent of Employee, of one of the following events
(each event being referred to herein as “Good Reason”):
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(i)
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(A) any
change in the duties or responsibilities (including reporting
responsibilities) of Employee that is inconsistent in any adverse
respect
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with
Employee’s position(s), duties, responsibilities or status with the
Company immediately prior to such change (including any diminution of such
duties or responsibilities) or (B) an adverse change in Employee’s
titles or offices (including, membership on the Board of Directors) with
the Company;
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(ii)
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a
reduction in Employee’s Base Salary or Bonus
opportunity;
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(iii)
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the
relocation of the Company’s principal executive
offices;
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(iv)
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the
failure of the Company to continue in effect any material employee benefit
plan, compensation plan, welfare benefit plan or fringe benefit plan in
which Employee is participating immediately prior to the date
of the Agreement or the taking of any action by the Company
which would adversely affect Employee’s participation in or reduce
Employee’s benefits under any such plan, unless Employee is permitted to
participate in other plans providing Employee with substantially
equivalent benefits;
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(v)
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any
refusal by the Company to continue to permit Employee to engage in
activities not directly related to the business of the Company which
Employee was permitted to engage in prior to the date of the
Agreement;
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(vi)
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the
Company’s failure to provide in all material respects the indemnification
set forth in the Company’s Articles of Incorporation, By-Laws, or any
other written agreement between Employee and
Company;
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(vii)
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a
Change in Control of the Company;
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(viii)
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the
failure of the Company to obtain the assumption agreement from any
successor giving rise to a Change of Control as contemplated in
Section 12 (a);
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(ix)
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any
other breach of a material provision of the Agreement by the
Company.
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For
purposes of clauses (iii) through (vi) and (ix) above, an
isolated, insubstantial and inadvertent action taken in good faith and
which is remedied by the Company within ten (10) days after receipt
of notice thereof given by Employee shall not constitute Good Reason.
Employee’s right to terminate employment with Good Reason shall not be
affected by Employee’s incapacity due to mental or physical illness and
Employee’s continued employment shall not constitute consent to, or a
waiver of rights with respect to, any event or condition constituting
cause.
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8.
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Effect
of Termination. Upon the termination of the Agreement, no rights of
Employee which shall have accrued prior to the date of such termination,
including the right to receive any bonus Fully-Earned through the date of
such termination, shall be affected in any way.
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(a)
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Upon
Death of Employee.
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During
the Term, if Employee’s employment is terminated due to her death,
Employee’s estate shall be entitled to receive the Base Salary set forth
in Section 3 accrued through the date of death and any bonus
Fully-Earned (as herein defined) through the date of such termination;
provided, however, Employee’s estate shall not be entitled to any other
benefits (except as provided by law or separate agreement). “Fully-Earned”
shall mean that for purposes of determining whether the Employee shall be
entitled to a bonus, that such Employee shall be treated as if she had
been employed through the last date of the regular period for determining
whether or not a bonus is payable in the standard manner that all such
employees are evaluated even though Employee is no longer employed by the
Company, and her eligibility for an incentive bonus, if any, shall be
determined accordingly. Further, a surviving spouse of Employee shall be
eligible for continuation of family benefits pursuant to Section 3(c)
subject to compliance with Plan provisions at the full premium rate
(Company plus employee portion) for a one year period after the date of
termination.
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(b)
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For
Disability; By Company Without Cause; By Employee with Good
Reason.
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If
the Agreement is terminated under Section 7 (b), (e) or
(f):
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(i)
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Employee
shall be entitled to receive his Base Salary set forth in Section 3
accrued through the date of such termination and any bonus Fully-Earned
through the date of such termination, and
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(ii)
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All
unvested stock options and restricted stock grants previously awarded to
Employee by the Company shall remain in full force and effect
as if no termination had occurred, and
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(iii)
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If
a Change of Control (x) has not then occurred,
Company shall pay Employee, on or before the six month anniversary of the
date of such termination an amount equal to three times his Base Salary,
and (y) has then
occurred (or is reasonably expected to occur), Company shall pay Employee
on or before the six month anniversary of the date of such termination an
amount equal to five times his Base Salary. Further, Employee shall be
eligible for continuation of benefits pursuant to Section 3(h) subject to
compliance with Plan provisions at the full premium rate (Company plus
employee portion) until Employee obtains reasonably equivalent employment
or for three (3) years from the date of termination, whichever is
earlier. It shall be a condition precedent of payment to Employee of such
payment and continued benefits pursuant to the Section 8(b) that Employee
execute a full and complete release of the Company, each of its
subsidiaries, Affiliates and their respective past, present and future
partners, officers, directors, employees, consultants, attorneys, agents
and shareholders, in form and substance reasonably acceptable to the
Company, of any claims Employee may have against any of them, to the
extent such claims arise from Employee’s employment hereunder, and any
revocation period with respect to such release have expired, prior to the
six month anniversary of the date of such termination,
and
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(iv)
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Employee
shall no longer be bound by the prohibitions contained in
Section 10.3 and 10.4.2 hereof prohibiting Employee from engaging or
having any interests in, directly or indirectly, in a competitive business
or soliciting employees; provided, however, Employee shall remain bound by
the further prohibition contained in Section 10.4.1,
and
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(v)
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Except
as provided for in the Section 8(b), Employee shall not have any
rights which have not previously accrued upon termination of the
Agreement.
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(c)
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By
Company With Cause
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In
the event of termination of Employee’s employment Section 7(c) Employee
shall be entitled to receive the Base Salary and benefits set forth in
Section 3 accrued through the date of termination, and she shall not
be entitled to any other benefits (except as required by
law).
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9.
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Confidential
Information.
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(a)
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The
Company shall disclose to Employee, or place Employee in a position to
have access to or develop, trade secrets or confidential information of
Company or its Affiliates; and/or shall entrust Employee with business
opportunities of Company or its Affiliates; and/or shall place Employee in
a position to develop business good will on behalf of Company or its
Affiliates.
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(b)
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The
Employee acknowledges that in his employment hereunder he occupies a
position of trust and confidence and agrees that he will treat as
confidential and will not, without prior written authorization
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| from the Company, directly or indirectly, disclose or make known to any person or use for his own benefit or gain, the methods, process or manner of accomplishing the business undertaken by the Company or its Affiliates, or any non-public information, plans, formulas, products, trade secrets, marketing or merchandising strategies, or confidential material or information and instructions, technical or otherwise, issued or published for the sole use of the company, or information which is disclosed to the Employee or in any acquired by him during the term of the Agreement, or any information concerning the present or future business, processes, or methods of operation of the Company or its Affiliates, or concerning improvement, inventions or know how relating to the same or any part thereof, it being the intent of the Company, with which intent the Employee hereby agrees, to restrict him from disseminating or using for her own benefit any information belonging directly or indirectly to the Company which is unpublished and not readily available to the general public. | ||||||
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(c)
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The
confidentiality obligations set forth in (a) and (b) of the
Section 9 shall apply during Employee’s employment and for a period
of one year after termination of employment.
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(d)
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All
information, ideas, concepts, improvements, discoveries, and inventions,
whether patentable or not, that are conceived, made, developed or acquired
by Employee, individually or in conjunction with others, during Employee’s
employment with Company (whether during business hours or otherwise and
whether on the premises of the Company or one of its Affiliate or
otherwise) that relate to the business, products or services of the
Company or any of its Affiliates shall be disclosed to the Board of
Directors and are and shall be the sole and exclusive property of the
Company or such Affiliate. Moreover, all documents, drawings, memoranda,
notes, records, files, correspondence, manuals, models, specifications,
computer programs, e-mail, voice mail, electronic data bases, maps and all
other writings and materials of any type embodying any such information,
ideas, concepts, improvements, discoveries and inventions are and shall be
the sole and exclusive property of the Company. Upon termination of
Employee’s employment by the Company, for any reason, Employee promptly
shall deliver the same, and all copies thereof, to the
Company.
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(e)
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If,
during Employee’s employment by the Company, Employee creates any work of
authorship fixed in any tangible medium of expression that is the subject
matter of copyright (such as video tapes, written presentations, or
acquisitions, computer programs, e-mail, voice mail, electronic data
bases, drawings, maps, architectural renditions, models, manuals,
brochures or the like) relating to the Company’s business, products or
services, whether such work is created solely by Employee or jointly with
others (whether during business hours or otherwise and whether on the
Company’s premises or otherwise), the Company shall be deemed the author
of such work if the work is prepared by Employee in the scope of
Employee’s employment.
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10.
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Restrictive
Covenants
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10.1
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For
the purposes of the Section, the following words have the following
meanings:
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10.1.1
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“Company
Services” means any services (including but not limited to technical and
product support, technical advice, underwriting and customer services)
supplied by the Company or its Affiliates in the specialty property and/or
casualty insurance business;
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10.1.2
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“Confidential
Information” has the meaning ascribed thereto in
Section 9;
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10.1.3
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“Customer”
means any person or firm or company or other organization whatsoever to
whom or which the Company supplied Company Services during the Restricted
Period and with whom or which, during the Restricted
Period:
(a) the
Employee had material personal dealings pursuant to her employment;
or
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(b) any
employee who was under the direct or indirect supervision of the Employee
had material personal dealings pursuant to their
employment.
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10.1.5
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“Prospective
Customer” means any person or firm or company or other organization
whatsoever with whom or which the Company or its Affiliates shall have had
negotiations or material discussions regarding the possible distribution,
sale or supply of Company Services during the Restricted Period and with
whom or which during such period:
(a) the
Employee shall have had material personal dealings pursuant to her
employment; or
(b) any
employee who was under the direct or indirect supervision of the Employee
shall have had material personal dealings pursuant to their employment;
or
(c) the
Employee was directly responsible in a client management capacity on
behalf of the Company.
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10.1.6
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“Restricted
Area” means:
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(a) any
geographic area in which the Company or Affiliates provided Restricted
Services and for which the Employee was responsible in the 12 months
preceding the date of Employee’s termination of employment by the
Company.
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10.1.7
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“Restricted
Employee” means any person who on the date of Employee’s termination of
employment by the Company was at the level of director, manager,
underwriter or salesperson with whom the Employee had material contact or
dealings in the course of her Employment during the Restricted
Period;
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10.1.8
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“Restricted
Period” means the period of 12 months ending on the last day of the
Employee’s employment with the Company or, in the event that no duties
were assigned to the Employee or the Employee was placed upon garden
leave, the 12 months immediately preceding the last day on which the
Employee carried out any duties for the Company;
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10.1.10
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“Restricted
Services” means Company Services or any services of the same or of a
similar kind.
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10.2
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The
Employee recognizes that, whilst performing her duties for the Company,
she will have access to and come into contact with trade secrets and
confidential information belonging to the Company and its Affiliates and
will obtain personal knowledge of and influence over its or their
customers and/or employees. The Employee therefore agrees that the
restrictions set out in the Section are reasonable and necessary to
protect the legitimate business interests of the Company and its
Affiliates both during and after the termination of her
employment.
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10.3
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The
Employee hereby undertakes with the Company that he will not during her
employment with the Company and for the period of twelve months after she
ceases to be employed by the Company whether by himself through her
employees or agents or otherwise howsoever and whether on her own behalf
or on behalf of any other person, firm, company or other organization,
directly or indirectly:
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10.3.1
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in
competition with the Company or its Affiliates within the Restricted Area,
be employed or engaged or otherwise interested in the business of
researching into, developing, underwriting, distributing, selling,
supplying or otherwise dealing with Restricted Services;
or
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10.3.2
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in
competition with the Company or its Affiliates, accept orders or
facilitate the acceptance of any orders or have any business dealings for
Restricted Services from any Customer or Prospective Customer;
or
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10.3.3
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employ
or otherwise engage in the business of or be personally involved to a
material extent in employing or otherwise engaging in the business of
researching into, developing, distributing, selling, supplying or
otherwise dealing with Restricted Services, any person who was during the
Restricted Period employed or otherwise engaged by the Company and who by
reason of such employment or engagement is reasonably likely to be in
possession of any trade secrets or Confidential Information relating to
the business of the Company.
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10.4
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The
Employee hereby undertakes with the Company that she shall not during her
employment with the Company and for the period of 12 months after she
ceases to be employed by the Company without the prior written consent of
the Company whether by himself through her employees or agents or
otherwise howsoever and whether on her own behalf or on behalf of any
other person, firm, company or other organization directly or
indirectly:
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10.4.1
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in
competition with the Company, solicit business from or endeavor to entice
away or canvass any Customer or Prospective Customer if such solicitation
or canvassing is in respect of Restricted
Services;
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10.4.2
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solicit
or induce or endeavor to solicit or induce any Restricted Employee to
cease working for or providing services to the Company, whether or not any
such person would thereby commit a breach of
contract.
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10.5
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The
benefit of Sections 10.3 and 10.4 shall be held on trust by the
Company for each of its Affiliates and the Company reserves the right to
assign the benefit of such provisions to any of its Affiliates, in
addition such provisions also apply as though there were substituted for
references to “the Company” references to each of its Affiliates in
relation to which the Employee has in the course of her duties for the
Company or by reason of rendering services to or holding office in such
Affiliate:
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10.5.1
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acquired
knowledge of its trade secrets or Confidential Information;
or
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10.5.2
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had
material personal dealings with its Customers or Prospective Customers;
or
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10.5.3
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supervised
directly or indirectly employees having material personal dealings with
its Customers or Prospective Customers but so that references in
Section 10 to “the Company” shall for the purpose be deemed to be
replaced by references to the relevant Affiliate. The obligations
undertaken by the Employee pursuant to the Section 10.5 shall, with
respect to each Affiliate of the Company, constitute a separate and
distinct covenant and the invalidity or unenforceability of any such
covenant shall not affect the validity or enforceability of the covenants
in favour of any other Affiliate or the Company.
|
||||||
|
10.6
|
The
parties agree that the periods referred to in Sections 10.3 and 10.4
above will be reduced by one day for every day, during which, at the
Company’s direction the Employee has been excluded from the Company’s
premises and has not carried out any duties.
|
||||||
|
10.7
|
While
the restrictions in the Section 10 (on which the Employee has had the
opportunity to take independent advice, as the Employee hereby
acknowledges) are considered by the parties to be reasonable in all the
circumstances, it is agreed that if any such restrictions, by themselves,
or taken together, shall be adjudged to go beyond what is reasonable in
all the circumstances for the protection of the legitimate interests of
the Company or its Affiliates but would be adjudged reasonable if part or
parts of the wording thereof were deleted, the relevant restriction or
restrictions shall apply with such deletion(s) as may be necessary to make
it or them valid and effective.
|
||
|
11.
|
[Intentionally
blank]
|
||
|
12
|
Change
Of Control.
|
||
|
(f)
|
For
purposes of the Agreement, a “Change of Control” shall be deemed to occur
if:
|
||||||||||
|
(i)
|
Any
Person, other than (1) the Company or any of its subsidiaries,
(2) a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its Affiliates, (3) an
underwriter temporarily holding securities pursuant to an offering of such
securities, or (4) a corporation owned, directly or indirectly, by
the shareholders of the Company in substantially the same proportions as
their ownership of stock of the Company, is or becomes the Beneficial
Owner, directly or indirectly, of securities of the Company (not including
in the securities beneficially owned by such person any securities
acquired directly from the Company or its Affiliates) representing 50% or
more of the combined voting power of the Company’s then outstanding
securities, or 50% or more of the then outstanding common stock of the
Company, excluding any Person who becomes such a Beneficial Owner
in connection with a merger or consolidation of the Company described
in (ii) below.
|
||||||||||
9
|
(ii)
|
There
is consummated a merger or consolidation of the Company or any direct or
indirect subsidiary of the Company with any other corporation, except if:
(A) the merger or consolidation 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 or any parent thereof) at least
fifty percent (50%) of the combined voting power of the voting securities
of the Company or such surviving entity or any parent thereof outstanding
immediately after such merger or consolidation; or (B) the merger or
consolidation is effected to implement a recapitalization of the Company
(or similar transaction) in which no Person is or becomes the beneficial
owner, directly or indirectly, of securities of the Company (not including
in the securities beneficially owned by such Person any securities
acquired directly from the Company or its Affiliates other than in
connection with the acquisition by the Company or its Affiliates of a
business) representing 50% or more of the combined voting power of the
Company’s then outstanding securities;
|
||||||||||
|
(iii)
|
The
shareholders of the Company approve a plan of complete liquidation or
dissolution of the Company or an agreement for the sale or disposition by
the Company of all or substantially all the Company’s assets, other than a
sale or disposition by the Company of all or substantially all of the
Company’s assets to an entity, at least 50% of the combined voting power
of the voting securities of which are owned by the stockholders of the
Company in substantially the same proportions as their ownership of the
Company immediately prior to such sale.
|
||||||||||
|
(iv)
|
During
any one year period, individuals who at the beginning of the period
constitute the Board of Directors of the Company cease for any reason to
constitute a majority of the Board of Directors.
|
||||||||||
|
(g)
|
For
purposes of the Section 12:
|
||||||||||
|
(i)
|
The
term “Person” shall have the meaning
given in Section 3(a)(9) of the 1934 Act as modified and used in Sections
13(d) and 14(d) of the 1934 Act.
|
|||||||
|
(ii)
|
The
term “Beneficial Owner” shall have the meaning provided in Rule 13d-3
under the 1934 Act.
|
|||||||
|
(iii)
|
The
term “Affiliate” means, with respect to any individual or a corporation,
partnership, trust, incorporated or unincorporated association, joint
venture, limited liability company, joint stock company, government (or an
agency or political subdivision thereof) or other entity of any kind (each
a “person”), any other person that directly or indirectly controls or is
controlled by or under common control with such person. For the purposes
of the definition, “control” when used with respect to any person, means
the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such person, whether through
the ownership of voting securities, by contract or otherwise; and the
terms of “affiliated”, “controlling” and “controlled” have meanings
correlated to the foregoing.
|
|||||||
|
13.
|
Successors
and Assigns. The Agreement is personal in its nature and neither of the
parties hereto shall, without the consent of the other, assign or transfer
the Agreement or any rights or obligations hereunder, provided, however,
that the provisions hereof shall enure to the benefit of, and be binding
upon, each successor of the Company, whether by merger, consolidation,
acquisition or otherwise, unless otherwise agreed to by the Employee and
the Company.
|
|||||||
10
|
14.
|
Notices.
Any notice required or permitted to be given to the Employee pursuant to
the Agreement shall be sufficiently given if sent to the Employee by
registered or certified mail addressed to the Employee at 0000 Xxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx XX 00000, or at such other address as she shall
designate by notice to the Company, and any notice required or permitted
to be given to the Company pursuant to the Agreement shall be sufficiently
given if sent to the Company by registered or certified mail addressed to
it at 0000 Xxxxxxx Xx., Xxx. 000, Xxxxxxx, Xx. 00000, or at such
other address as it shall designate by notice to the
Employee.
|
|
|
15.
|
Invalid
Provisions. The invalidity or unenforceability of a particular provision
of the Agreement shall not affect the enforceability of any other
provisions hereof and the Agreement shall be construed in all respects as
if such invalid or unenforceable provision were
omitted.
|
|
16.
|
Amendments
To The Agreement. The Agreement may only be amended in writing by an
agreement executed by both parties hereto.
|
|
|
17.
|
Entire
Agreement. The Agreement contains the entire agreement of the parties
hereto and supersedes any and all prior agreements, oral or written, and
negotiations between said parties regarding the subject matter contained
herein.
|
|
18.
|
11
|
19.
|
No
Waiver. No failure by either party hereto at any time to give notice of
any breach by the other party of, or to require compliance with, any
condition or provision of the Agreement shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior
or subsequent time.
|
|
|
20.
|
Severability.
If a Court of competent jurisdiction determines that any provision of the
Agreement is invalid or unenforceable, then the invalidity or
unenforceability of that provision shall not affect the validity or
unenforceability of any other provision of the Agreement, and all other
provisions shall remain in full force and effect.
|
|
|
21.
|
Counterparts.
The Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, but all of which together will
constitute one in the same agreement.
|
|
22.
|
Withholding
of Taxes and Other Employee Deductions. The Company may withhold from any
benefits and payments made pursuant to the Agreement all federal, state,
city and other taxes as may be required pursuant to any law or
governmental regulation or ruling and any and all other normal employee
deductions made with respect to the Company’s employees
generally.
|
|
|
23.
|
Section 409A
of the Code. The provisions of the Agreement and any payments made herein
are intended to comply with, and should be interpreted consistent with,
the requirements of Section 409A of the Code, and any related
regulations or other effective guidance promulgated thereunder
(collectively, “Section 409A”). The time or schedule of a payment to
which the Executive is entitled under the Agreement may be accelerated at
any time that the Agreement fails to meet the requirements of
Section 409A and any such payment will be limited to the amount
required to be included in the Executive’s income as a result of the
failure to comply with Section 409A. Reference herein to termination
of employment shall be deemed to mean a separation from
service.
|
|
|
In
witness whereof, the parties hereto have executed the Agreement as of the
day and year above written.
|
|
Global
Automotive Supply, Inc
|
Employee:
|
|||||
|
By:
|
/s/
Xxx Xxxxxxxx
|
/s/
Xxxxxx X.
XxXxxxxxxxx
|
||||
|
Xxx
Xxxxxxxx ,
Board
of Directors of
Global
Automotive Supply, Inc
|
Xxxxxx
X. XxXxxxxxxxx
|
|||||
