EMPLOYMENT AGREEMENT
This AGREEMENT (the “Agreement”) is
made as of the date signed (the “Effective Date”), by and between Global
Automotive Supply, Inc., a Nevada corporation with its headquarters located in
Orlando, Florida (the “Employer”), and Xxxxx Xxxxxxxxxxx (the
“Executive”). In consideration of the mutual covenants contained in
this Agreement, the Employer and the Executive agree as follows:
1. Employment. The
Employer agrees to employ the Executive and the Executive agrees to be employed
by the Employer on the terms and conditions set forth in this
Agreement.
2. Capacity;
Location. The Executive shall serve the Employer as Chief
Financial Officer. In his capacity as Chief Financial Officer,
Executive will report to the Chief Executive Officer, and shall be responsible
for strategic and operational matters relating to the Employer’s finance and
accounting efforts subject to the direction of the Chief Executive
Officer. In such capacity, the Executive shall perform such services
and duties in connection with the business, affairs and operations of the
Employer as may be assigned or delegated to the Executive from time to time by
or under the authority of the Chief Executive Officer. Executive’s
employment with Employer will be based in Employer’s Orlando, Florida offices;
provided, that
Employee may be required from time to time to travel in connection with
Employer’s business needs.
3. Term. The
term of this Agreement shall be a period of three years during which time
Executive shall be considered an at-will employee of Employer and, subject to
the provisions of Section 6, the employment relationship described herein may be
terminated by either Executive or Employer at any time.
4. Compensation and
Benefits. The regular compensation and benefits payable to the
Executive under this Agreement shall be as follows:
(a) Base
Salary. Beginning February 22, 2008, for all services rendered
by the Executive under this Agreement, the Employer shall pay the Executive a
base salary (the “Salary”) at the annual rate of One Hundred and Seventy Five
Thousand Dollars ($175,000), subject to increase from time to time in the
discretion of the Board of Directors of Employer or the Compensation Committee,
if any, of the Board of Directors (the “Compensation Committee”). The
Salary shall be payable in periodic installments in accordance with the
Employer’s usual practice for its senior executives.
(b) Bonus. Executive
shall be eligible to participate in an incentive program established by the
Compensation Committee, with such terms as may be established in the sole
discretion of the Compensation Committee.
(c) Regular
Benefits. The Executive shall be entitled to fully paid health
insurance benefits from Employer, and shall also be entitled to participate in
any car allowance/lease, employee benefit plans, life insurance plans,
disability income plans, retirement plans, expense reimbursement plans and other
benefit plans which the Employer may from time to time have in effect for all or
most of its executive management employees. Executive shall have the
option to receive cash payments in equivalent to the current company health
insurance cost (currently $1,250) per month if Executive elects to decline
participation in the Employer’s health insurance plan. Participation in any
Employer benefit plan shall be subject to the terms of the applicable plan
documents, generally applicable policies of the Employer, applicable law and the
discretion of the Board of Directors, the Compensation Committee or any
administrative or other committee provided for in or contemplated by any such
plan. Except with respect to the aforementioned health insurance
benefits, nothing contained in this Agreement shall be construed to create any
obligation on the part of the Employer to establish any such plan or to maintain
the effectiveness of any such plan, which may be in effect from time to
time.
(d) Vacation. The
Executive shall be entitled to vacation according to Employer’s vacation policy,
such vacation time to accrue on a per-pay-period basis and not to be less than
two weeks per 12-month period.
(e) Taxation of Payments and
Benefits. The Employer shall undertake to make deductions,
withholdings and tax reports with respect to payments and benefits under this
Agreement to the extent that it reasonably and in good faith believes that it is
required to make such deductions, withholdings and tax
reports. Payments under this Agreement shall be in amounts net of any
such deductions or withholdings. Nothing in this Agreement shall be
construed to require the Employer to make any payments to compensate the
Executive for any adverse tax effect associated with any payments or benefits or
for any deduction or withholding from any payment or benefit.
(f) Expenses. The
Employer shall reimburse the Executive for all reasonable and necessary business
related travel expenses incurred or paid by the Executive in performing his
duties under this Agreement and which are consistent with applicable policies of
the Employer. All payments for reimbursement of such expenses shall
be made upon presentation by the Executive of expense statements or vouchers and
such other supporting information as the Employer may from time to time
reasonably request.
(g) Stock
Options. The Employer shall grant to the Executive, pursuant
to and subject to the Employer’s 2008 stock option plan as soon as such plan is
approved by the Board of Directors to purchase a then to be determined number of
shares of the Employer’s common stock, at an exercise price per share to be
determined immediately after the Company becomes a publicly traded
company. Of these initial options, 50% will vest upon the date of
grant and the balance will vest over a two-year period in equal increments on
each anniversary of the date of grant. All options granted shall
expire according to the terms of the option plan.
(h) Extent of
Service. During the Executive’s employment under this
Agreement, the Executive shall devote the Executive’s full business time, best
efforts and business judgment, skill and knowledge to the advancement of the
Employer’s interests and to the discharge of the Executive’s duties and
responsibilities under this Agreement. The Executive shall not engage
in any other business activity, except as may be approved by the Chief Executive
Officer; provided, that
nothing in this Agreement shall be construed as preventing the Executive
from:
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(a) investing
the Executive’s assets in any company or other entity in a manner not prohibited
by Section 7(d) and in such form or manner as shall not require any material
activities on the Executive’s part in connection with the operations or affairs
of the companies or other entities in which such investments are made;
and
(b) engaging
in religious, charitable or other community or non-profit activities that do not
impair the Executive’s ability to fulfill the Executive’s duties and
responsibilities under this Agreement.
6. Termination and Termination
Benefits. Notwithstanding the provisions of Section 3, the
Executive’s employment under this Agreement shall terminate under the following
circumstances set forth in this Section 6.
(a) Termination by the Employer
for Cause. The Executive’s employment under this Agreement may be
terminated for “Cause” without further liability on the part of the Employer,
effective immediately upon a vote of the Board of Directors and written notice
to the Executive. Only the following shall constitute “Cause” for
such termination:
(i) dishonest
or fraudulent statements or acts of the Executive with respect to the Employer
or any affiliate of the Employer;
(ii) the
Executive’s conviction of, or entry of a plea of guilty or nolo contendere for,
(A) a felony or (B) any misdemeanor (excluding minor traffic violations)
involving moral turpitude, deceit, dishonesty or fraud;
(iii) gross
negligence, willful misconduct or insubordination of the Executive with respect
to the Employer or any affiliate of the Employer; or
(iv) material
breach by the Executive of any of the Executive’s obligations under this
Agreement, or any other agreement to which Executive and Employer are now or
hereafter a party to.
(b) Termination by the
Executive. The Executive’s employment under this Agreement may
be terminated by the Executive by written notice to Employer at least thirty
(30) days prior to such termination.
(c) Termination by the Employer
Without Cause. Subject to the payment of Termination Benefits
pursuant to Section 6(d), the Executive’s employment under this Agreement may be
terminated by the Employer without Cause upon written notice to the Executive (a
termination “Without Cause”).
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(d) Certain Termination
Benefits. Unless otherwise specifically provided in this
Agreement or otherwise required by law, all compensation and benefits payable to
the Executive under this Agreement shall terminate on the date of termination of
the Executive’s employment under this Agreement. Notwithstanding the
foregoing, in the event of termination of the Executive’s employment with the
Employer Without Cause pursuant to Section 6(c) above, the Employer shall
provide to the Executive the following termination benefits (“Termination
Benefits”):
(i) payment
of the Executive’s Salary at the rate then in effect pursuant to Section 4(a)
for the period from the date of termination until the date that is two (2)
months after the date of termination; and
Notwithstanding
the foregoing, nothing in this Section 6(d) shall be construed to affect the
Executive’s right to receive COBRA continuation entirely at the Executive’s own
cost to the extent that the Executive may continue to be entitled to COBRA
continuation after the Executive’s right to cost sharing under Section 6(d)(ii)
ceases.
(e) Disability. If
the Executive shall be disabled so as to be unable to perform the essential
functions of the Executive’s then existing position or positions under this
Agreement with reasonable accommodation, the CEO may remove the Executive from
any responsibilities and/or reassign the Executive to another position with the
Employer during the period of such disability. Notwithstanding any
such removal or reassignment, the Executive shall continue to receive the
Executive’s full Salary (less any disability pay or sick pay benefits to which
the Executive may be entitled under the Employer’s policies) and benefits under
Section 4 of this Agreement (except to the extent that the Executive may be
ineligible for one or more such benefits under applicable plan terms) for a
period of time equal to two (2) months. If any question shall arise
as to whether during any period the Executive is disabled so as to be unable to
perform the essential functions of the Executive’s then existing position or
positions with reasonable accommodation, the Executive may, and at the request
of the Employer shall, submit to the Employer a certification in reasonable
detail by a physician selected by the Employer to whom the Executive or the
Executive’s guardian has no reasonable objection as to whether the Executive is
so disabled or how long such disability is expected to continue, and such
certification shall for the purposes of this Agreement be conclusive of the
issue. The Executive shall cooperate with any reasonable request of
the physician in connection with such certification. If such question
shall arise and the Executive shall fail to submit such certification, the
Employer’s determination of such issue shall be binding on the
Executive. Nothing in this Section 6(e) shall be construed to waive
the Executive’s rights, if any, under existing law including, without
limitation, the Family and Medical Leave Act of 1993, 29 U.S.C. §2601 et seq. and the Americans
with Xxxxxxxxxxxx Xxx, 00 X.X.X. §00000 et seq.
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7. Confidential Information,
Noncompetition and Cooperation.
(a) Confidential
Information. As used in this Agreement, “Confidential
Information” means information belonging to the Employer which is of value to
the Employer in the course of conducting its business and the disclosure of
which could result in a competitive or other disadvantage to the
Employer. Confidential Information includes, without limitation,
financial information, reports, and forecasts; inventions, improvements and
other intellectual property; trade secrets; know-how; designs, processes or
formulae; software; market or sales information or plans; customer lists; and
business plans, prospects and opportunities (such as possible acquisitions or
dispositions of businesses or facilities) which have been discussed or
considered by the management of the Employer. Confidential
Information includes information developed by the Executive in the course of the
Executive’s employment by the Employer, as well as other information to which
the Executive may have access in connection with the Executive’s
employment. Confidential Information also includes the confidential
information of others with which the Employer has a business
relationship. Notwithstanding the foregoing, Confidential Information
does not include information in the public domain, unless due to breach of the
Executive’s duties under Section 7(b).
(b) Confidentiality. The
Executive understands and agrees that the Executive’s employment creates a
relationship of confidence and trust between the Executive and the Employer with
respect to all Confidential Information. At all times, both during
the Executive’s employment with the Employer and after its termination, the
Executive will keep in confidence and trust all such Confidential Information,
and will not use or disclose any such Confidential Information without the
written consent of the Employer, except as may be necessary in the ordinary
course of performing the Executive’s duties to the Employer.
(c) Documents, Records,
etc. All documents, records, data, apparatus, equipment and
other physical property, whether or not pertaining to Confidential Information,
which are furnished to the Executive by the Employer or are produced by the
Executive in connection with the Executive’s employment will be and remain the
sole property of the Employer. The Executive will return to the
Employer all such materials and property as and when requested by the
Employer. In any event, the Executive will return all such materials
and property immediately upon termination of the Executive’s employment for any
reason. The Executive will not retain with the Executive any such
material or property or any copies thereof after such termination.
(d) Noncompetition and
Nonsolicitation. Without the prior written consent of the CEO,
during the period that Executive is employed by Employer and for one (1) year
thereafter, the Executive (i) will not, directly or indirectly, whether as
owner, partner, shareholder, consultant, agent, employee, co-venturer or
otherwise, engage, participate, assist or invest in any Competing Business (as
hereinafter defined); (ii) will refrain from directly or indirectly employing,
attempting to employ, recruiting or otherwise soliciting, inducing or
influencing any person to leave employment with the Employer; and (iii) will
refrain from soliciting or encouraging any customer or supplier to terminate or
otherwise modify adversely its business relationship with the
Employer. The Executive understands that the restrictions set forth
in this Section 7(d) are intended to protect the Employer’s interest in its
Confidential Information and established employee, customer and supplier
relationships and goodwill, and agrees that such restrictions are reasonable and
appropriate for this purpose. For purposes of this Agreement, the
term “Competing Business” shall mean any business that provides or intends to
provide the same or similar types of services or products as those provided or
targeted by Employer or any of its subsidiaries in any geographic area then
served or targeted by Employer or any of its
subsidiaries. Notwithstanding the foregoing, the Executive may own up
to two percent (2%) of the outstanding stock of a publicly held
corporation.
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(e) Third-Party Agreements and
Rights. The Executive hereby confirms that the Executive is
not bound by the terms of any agreement with any previous employer or other
party which restricts in any way the Executive’s use or disclosure of
information or the Executive’s engagement in any business. The
Executive represents to the Employer that the Executive’s execution of this
Agreement, the Executive’s employment with the Employer and the performance of
the Executive’s proposed duties for the Employer will not violate any
obligations the Executive may have to any such previous employer or other
party. In the Executive’s work for the Employer, the Executive will
not disclose or make use of any information in violation of any agreements with
or rights of any such previous employer or other party, and the Executive will
not bring to the premises of the Employer any copies or other tangible
embodiments of non-public information belonging to or obtained from any such
previous employment or other party.
(f) Litigation and Regulatory
Cooperation. During and after the Executive’s employment, the
Executive shall cooperate fully with the Employer in the defense or prosecution
of any claims or actions now in existence or which may be brought in the future
against or on behalf of the Employer which relate to events or occurrences that
transpired while the Executive was employed by the Employer. The
Executive’s full cooperation in connection with such claims or actions shall
include, but not be limited to, being available to meet with counsel to prepare
for discovery or trial and to act as a witness on behalf of the Employer at
mutually convenient times. During and after the Executive’s
employment, the Executive also shall cooperate fully with the Employer in
connection with any investigation or review of any federal, state or local
regulatory authority as any such investigation or review relates to events or
occurrences that transpired while the Executive was employed by the
Employer. The Employer shall reimburse the Executive for any
reasonable out-of-pocket expenses incurred in connection with the Executive’s
performance of obligations pursuant to this Section 7(f) and shall pay the
Executive for his time at his annual salary rate in effect at the time of the
termination of his employment.
(g) Developments. Executive
will make full and prompt disclosure to the Employer of all inventions,
discoveries, designs, developments, methods, modifications, improvements,
processes, algorithms, databases, computer programs, formulae, techniques, trade
secrets, graphics or images, audio or visual works, and other works of
authorship (collectively "Developments"), whether or not patentable or
copyrightable, that are created, made, conceived or reduced to practice by
Executive (alone or jointly with others) or under Executive's direction during
the period of his employment. Executive acknowledges that all work
performed by Executive for Employer hereunder is on a "work for hire" basis, and
Executive hereby assigns and transfers, and will assign and transfer, to
the Employer and its successors and assigns all of Executive's right, title and
interest, including but not limited to all patents, patent applications,
trademarks and trademark applications, copyrights and copyright applications,
and other intellectual property rights in all countries and territories
worldwide and under any international conventions, in and to all Developments
that (a) relate to the business of the Employer or any of the products or
services of the Employer; (b) result from tasks assigned to Executive by
the Employer; or (c) result from the use of personal property (whether tangible
or intangible) owned, leased or contracted for by the Employer.
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(h) Injunction. The
Executive agrees that it would be difficult to measure any damages caused to the
Employer which might result from any breach by the Executive of the promises set
forth in this Section 7, and that in any event money damages would be an
inadequate remedy for any such breach. Accordingly, subject to
Section 8 of this Agreement, the Executive agrees that if the Executive
breaches, or proposes to breach, any portion of this Agreement, the Employer
shall be entitled, in addition to all other remedies that it may have, to an
injunction or other appropriate equitable relief to restrain any such breach
without showing or proving any actual damage to the Employer.
8. Arbitration of
Disputes. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof or otherwise arising out of the
Executive’s employment or the termination of that employment (including, without
limitation, any claims of unlawful employment discrimination whether based on
age or otherwise) shall, to the fullest extent permitted by law, be settled by
arbitration in any forum and form agreed upon by the parties or, in the absence
of such an agreement, under the auspices of the American Arbitration Association
(“AAA”) in Orlando, Florida in accordance with the Employment Dispute Resolution
Rules of the AAA, including, but not limited to, the rules and procedures
applicable to the selection of arbitrators. In the event that any
person or entity other than the Executive or the Employer may be a party with
regard to any such controversy or claim, such controversy or claim shall be
submitted to arbitration subject to such other person or entity’s
agreement. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. This Section 8
shall be specifically enforceable. Notwithstanding the foregoing, this Section 8
shall not preclude either party from pursuing a court action for the sole
purpose of obtaining a temporary restraining order or a preliminary injunction
in circumstances in which such relief is appropriate; provided, that any
other relief shall be pursued through an arbitration proceeding pursuant to this
Section 8.
9. Consent to
Jurisdiction. To the extent that any court action is permitted consistent
with or to enforce Section 8 of this Agreement, the parties hereby consent to
the jurisdiction of the courts of the State of Florida. Accordingly,
with respect to any such court action, the Executive (a) submits to the personal
jurisdiction of such courts; (b) consents to service of process; and (c) waives
any other requirement (whether imposed by statute, rule of court, or otherwise)
with respect to personal jurisdiction or service of process.
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10. Integration. This
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements between the
parties with respect to any related subject matter.
11. Assignment; Successors and
Assigns, etc. Neither the Employer nor the Executive may make
any assignment of this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the other party; provided, that the
Employer may assign its rights under this Agreement without the consent of the
Executive in the event that the Employer shall effect a reorganization,
consolidate with or merge into any other corporation, partnership, organization
or other entity, or transfer all or substantially all of its properties or
assets to any other corporation, partnership, organization or other
entity. This Agreement shall inure to the benefit of and be binding
upon the Employer and the Executive, their respective successors, executors,
administrators, heirs and permitted assigns.
12. Enforceability. If
any portion or provision of this Agreement (including, without limitation, any
portion or provision of any section of this Agreement) shall to any extent be
declared illegal or unenforceable by a court of competent jurisdiction, then the
remainder of this Agreement, or the application of such portion or provision in
circumstances other than those as to which it is so declared illegal or
unenforceable, shall not be affected thereby, and each portion and provision of
this Agreement shall be valid and enforceable to the fullest extent permitted by
law.
13. Waiver. No
waiver of any provision hereof shall be effective unless made in writing and
signed by the waiving party. The failure of any party to require the
performance of any term or obligation of this Agreement, or the waiver by any
party of any breach of this Agreement, shall not prevent any subsequent
enforcement of such term or obligation or be deemed a waiver of any subsequent
breach.
14. Notices. Any
notices, requests, demands and other communications provided for by this
Agreement shall be sufficient if in writing and delivered in person or sent by a
nationally recognized overnight courier service or by registered or certified
mail, postage prepaid, return receipt requested, to the Executive at the last
address the Executive has filed in writing with the Employer or, in the case of
the Employer, at 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, ATTN: Chief
Executive Officer, and shall be effective on the date of delivery in person or
by courier or three (3) days after the date mailed.
15. Amendment. This
Agreement may be amended or modified only by a written instrument signed by the
Executive and by a duly authorized representative of the Employer.
16. Governing
Law. This is a Florida contract and shall be construed under
and be governed in all respects by the laws of the State of Florida, without
giving effect to the conflict of laws principles of such State.
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17. Counterparts. This
Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be taken to be an original; but such counterparts
shall together constitute one and the same document.
IN WITNESS WHEREOF, this Agreement has
been executed by the Employer and by the Executive as of the Effective
Date.
| Global Automotive Supply, Inc. | |
| By: | /s/ Xxxxxx XxXxxxxxxxx |
|
Xx.
Xxxxxx XxXxxxxxxxx
Chief
Executive Officer
|
|
| Executive: | |
| /s/ Xxxxx Xxxxxxxxxxx | |
| Xxxxx Xxxxxxxxxxx | |
| Date: | February 22, 2008 |
