SECOND AMENDMENT TO THE EMPLOYMENT AGREEMENT OF DAVID W. MORGAN
EXHIBIT 10.46
SECOND AMENDMENT TO THE EMPLOYMENT AGREEMENT OF XXXXX X. XXXXXX
THIS SECOND AMENDMENT is by and between Ecology Coatings, Inc., a Nevada corporation (the
“Company”), and Xxxxx X. Xxxxxx (the “Executive”) and is entered to be effective as of the day of
August, 2008 (the “Amendment Date”).
WHEREAS, the Company and the Executive entered into that certain Employment Agreement dated as
of May 23, 2007 (the “Agreement”) as amended on October 11, 2007 and desire in accordance with
Section 10.1 of the Agreement to make certain amendments thereto;
Now, therefore, it is hereby agreed as follows:
1. Paragraph 4.5 of the Agreement is amended to read as follows:
4.5 Change in Control. If, during the term of this Agreement and within one year after a
“Change in Control,” as defined below, the Company shall terminate the Executive’s employment other
than for Cause, Death or Disability or the Executive shall terminate employment for Good Reason,
the Company shall (i) pay to the Executive the amount of compensation that would have been payable
to the Executive over the period then remaining under this Agreement and on the same schedule as
such payments would have been due had the termination not occurred, provided that the Company shall
pay the Executive for a minimum of twenty-four (24) months on this basis; and (ii) cause all stock
options issued to the Executive that have not vested as of the termination to be immediately
vested.
4.5.1 The term “Change in Control” shall mean an event or the last of a series of related
events by which:
4.5.2 the Company merges or consolidates with or into another entity or completes any other
corporate reorganization, if more than fifty percent (50%) of the combined voting power of the
continuing or surviving entity’s securities outstanding immediately after such merger,
consolidation or other reorganization is owned by persons who were not stockholders of the Company
immediately prior to such merger, consolidation or other reorganization; or
4.5.3 the Company sells, transfers or otherwise disposes of all or substantially all of the
consolidated assets of the Company or its subsidiaries and the Company does not own stock in the
purchaser or purchasers having more than fifty percent (50%) of the voting power in elections for
directors; or
4.5.4 the composition of the Board changes, as a result of which fewer than one half of the
incumbent directors are directors who either:
(i) had been directors of the Company twenty-four (24) months prior to such change; or
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(ii) were elected, or nominated for election, to the Board with the affirmative votes of at
least a majority of the directors who had been directors of the Company twenty-four (24) months
prior to such change and who were still in office at the time of the election or nomination.
A transaction shall not constitute a Change of Control if (i) its sole purpose is to change the
state of the Company’s incorporation or to create a holding company that will be owned in
substantially the same proportions by the Persons who held the Company’s securities immediately
before such transaction (ii) the Company acquires another corporation or entity through the
purchase or other acquisition of control of the voting stock or assets of such corporation or
entity or (iii) the transaction involves Equity 11, Ltd. or any its affiliates; or
4.5.5 any Person acquires direct or indirect beneficial ownership of more than thirty-three
percent (33%) of the voting power of the Company, whether in a single transaction or a series of
transactions.
4.5.6 As used in this Agreement, a “Person” means any “person,” as that term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended, together with all of
that person’s “affiliates” and “associates,” as those terms are defined in Rule 12b-2 of such Act.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the Effective Date.
The Company:
Ecology Coatings, a Nevada corporation |
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/s/ Xxxxxxx X. Xxxxxxxxx
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Chief Executive Officer |
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The Executive: |
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Xxxxx X. Xxxxxx |
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/s/ Xxxxx X. Xxxxxx
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