DIRECTOR AGREEMENT
EXHIBIT
10.2
This DIRECTOR AGREEMENT is made as of
this ___day of June, 2010 (the "Agreement"), by and
between China Electric Motor, Inc., a Delaware corporation (the "Company") and Xxxxx
X. Xxx (the “Director”).
WHEREAS, the Company is engaged in the
design, manufacture, sale and marketing of micro-motors and micro-motor
components with a range of applications in automobiles, power tools, home
appliances and consumer electronics (the “Business”);
WHEREAS, the Company wishes to appoint
the Director as a non-executive member of the Board of Directors of the Company
and enter into an agreement with the Director with respect to such appointment;
and
WHEREAS, the Director wishes to accept
such appointment and to serve the Company on the terms set forth herein, and in
accordance with, the provisions of this Agreement.
NOW, THEREFORE, in consideration of the
mutual covenants contained herein, the parties hereto agree as
follows:
1. Position. Subject
to the terms and provisions of this Agreement, the Company shall cause the
Director to be appointed as non-executive member of the Board of Directors (the
“Board”) and the Director hereby agrees to serve the Company in that position
upon the terms and conditions hereinafter set forth, provided however, that the
Director's continued service on the Board after the initial term on the Board
shall be subject to any necessary approval by the Company's
stockholders.
2. Duties. During
the Directorship Term (as defined in Section 5 hereof), the Director shall serve
as a member of the Board, and the Director shall make reasonable business
efforts to attend all Board meetings, serve on appropriate subcommittees as
reasonably requested by the Board, make himself available to the Company at
mutually convenient times and places, attend external meetings and
presentations, as appropriate and convenient, and perform such duties, services
and responsibilities and have the authority commensurate to such
position.
The Director will use his best efforts
to promote the interests of the Company. The Company recognizes that the
Director (i) is a full-time executive employee of another entity and that his
responsibilities to such entity must have priority and (ii) may sit on the Board
of Directors of other entities; although Director will use reasonable business
efforts to coordinate his respective commitments so as to fulfill his
obligations to the Company and, in any event, will fulfill his legal obligations
as a director. Other than as set forth above, the Director will not, without the
prior written approval of the Board, engage in any other business activity which
could materially interfere with the performance of his duties, services and
responsibilities hereunder or which is in violation of the reasonable policies
established from time to time by the Company, provided that the foregoing shall
in no way limit his activities on behalf of (i) his current employer and its
affiliates or (ii) the boards of directors of those entities on which he
sits.
3. Monetary
Remuneration.
(a) Fees and
Compensation. During the Directorship Term the Director shall receive
a monthly fee of $1,500.00, payable on the first day of each
month. The Director's status during the Directorship Term shall be
that of an independent contractor and not, for any purpose, that of an employee
or agent with authority to bind the Company in any respect. All payments and
other consideration made or provided to the Director under Sections 3 and 4
shall be made or provided without withholding or deduction of any kind, and the
Director shall assume sole responsibility for discharging, all tax or other
obligations associated therewith.
(b) Expense
Reimbursements. During the Directorship Term, the Company shall
reimburse the Director for all reasonable out-of-pocket expenses incurred by the
Director in attending any in-person meetings, provided that the Director
complies with the generally applicable policies, practices and procedures of the
Company for submission of expense reports, receipts or similar documentation of
such expenses. Any reimbursements for allocated expenses (as compared to
out-of-pocket expenses of the Director) must be approved in advance by the
Company.
4. Equity
Arrangement. Within five (5) business days after the approval
of an equity incentive plan (the “Plan”) by the
Company’s stockholders, the Company agrees to grant the Director
Twenty Thousand
(20,000) shares of restricted common stock of the Company (the “Shares”) pursuant to
the Plan. These Shares will vest in Two (2) years with Twenty Five Hundred
(2,500) Shares being vested every quarter, starting from the effective date of
this Agreement. Other terms and conditions of the Shares, shall be determined by
the Company’s Board of Directors in accordance with the Plan at the time of the
grant and set forth in a stock grant agreement to be executed by the Company and
the Director. If the Plan is not yet approved by the end of any quarter during
the Term of this Agreement, the Director will be paid an additional fee equal to
the market value of Shares that would have been vested by then, in lieu of the
Shares that would have been vested by then.
5. Directorship
Term. The "Directorship Term", as used in this Agreement,
shall mean the period commencing on the date hereof and terminating on the
earliest of the following to occur:
(a) the death of the
Director;
(b) the termination of the Director
from the position of member of the Board;
(c) the resignation by the Director
from the Board if after the date hereof, the chief executive officer of his
current employer determines that the Director's continued service on the Board
conflicts with his fiduciary obligations to his current employer (a "Fiduciary
Resignation"); and
(d) the resignation by the Director
from the Board if the board of directors or the chief executive officer of his
current employer requires the Director to resign and such resignation is not a
Fiduciary Resignation.
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6. Director's Representation
and Acknowledgment. Based on the understanding that the
Company is currently only engaged in the Business, the Director represents to
the Company that his execution and performance of this Agreement shall not be in
violation of any agreement or obligation (whether or not written) that he may
have with or to any person or entity, including without limitation, any prior
employer. The Director hereby acknowledges and agrees that this Agreement (and
any other agreement or obligation referred to herein) shall be an obligation
solely of the Company, and the Director shall have no recourse whatsoever
against any stockholder of the Company or any of their respective affiliates
with regard to this Agreement.
7. Director
Covenants.
(a) Unauthorized
Disclosure. The Director agrees and understands that in the
Director's position with the Company, the Director has been and will be exposed
to and receive information relating to the confidential affairs of the Company,
including but not limited to technical information, business and marketing
plans, strategies, customer information, other information concerning the
Company's products, promotions, development, financing, expansion plans,
business policies and practices, and other forms of information considered by
the Company to be confidential and in the nature of trade secrets. The Director
agrees that during the Directorship Term and thereafter, the Director will keep
such information confidential and will not disclose such information, either
directly or indirectly, to any third person or entity without the prior written
consent of the Company; provided, however, that (i) the Director shall have no
such obligation to the extent such information is or becomes publicly known or
generally known in the Company's industry other than as a result of the
Director's breach of his obligations hereunder and (ii) the Director may, after
giving prior notice to the Company to the extent practicable under the
circumstances, disclose such information to the extent required by applicable
laws or governmental regulations or judicial or regulatory process. This
confidentiality covenant has no temporal, geographical or territorial
restriction. Upon termination of the Directorship Term, the Director will
promptly return to the Company all property, keys, notes, memoranda, writings,
lists, files, reports, customer lists, correspondence, tapes, disks, cards,
surveys, maps, logs, machines, technical data or any other tangible product or
document which has been produced by, received by or otherwise submitted to the
Director in the course or otherwise as a result of the Director's position with
the Company during or prior to the Directorship Term, provided that, the Company
shall retain such materials and make them available to the Director if requested
by him in connection with any litigation against the Director under
circumstances in which (i) the Director demonstrates to the reasonable
satisfaction of the Company that the materials are necessary to his defense in
the litigation, and (ii) the confidentiality of the materials is preserved to
the reasonable satisfaction of the Company.
(b) Non-Solicitation. During
the Directorship Term and for a period of [__] years after the termination of
the Directorship Term, the Director shall not interfere with the Company's
relationship with, or endeavor to entice away from the Company, any person who,
on the date of the termination of the Directorship Term, was an employee or
customer of the Company or otherwise had a material business relationship with
the Company.
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The provisions of this Section 7 shall
survive any termination of the Directorship Term, and the existence of any claim
or cause of action by the Director against the Company, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Company of the covenants and agreements of this Section 7.
8. Indemnification. The
Company agrees to indemnify the Director for his activities as a director of the
Company to the fullest extent permitted by law, and to cover the Director under
any directors and officers liability insurance obtained by the Company. Further,
the Company and the Director agree to enter into an indemnification agreement
substantially in the form of agreement entered into by the Company and its other
Board members.
9. Non-Waiver of
Rights. The failure to enforce at any time the provisions of
this Agreement or to require at any time performance by the other party of any
of the provisions hereof shall in no way be construed to be a waiver of such
provisions or to affect either the validity of this Agreement or any part
hereof, or the right of either party to enforce each and every provision in
accordance with its terms. No waiver by either party hereto of any breach by the
other party hereto of any provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions at that
time or at any prior or subsequent time.
10. Notices. Every
notice relating to this Agreement shall be in writing and shall be given by
personal delivery or by registered or certified mail, postage prepaid, return
receipt requested; to:
If to the
Company:
Sunna
Motor Industry Park
Jian’an,
Fuyong Hi-Tech Park
Baoan
District, Shenzhen, Guangdong, China
If to the
Director:
[INSERT
ADDRESS]
Either of the parties hereto may change
their address for purposes of notice hereunder by giving notice in writing to
such other party pursuant to this Section 10.
11. Binding
Effect/Assignment. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs, executors,
personal representatives, estates, successors (including, without limitation, by
way of merger) and assigns. Notwithstanding the provisions of the immediately
preceding sentence, neither the Director nor the Company shall assign all or any
portion of this Agreement without the prior written consent of the other
party.
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12. Entire
Agreement. This Agreement (together with the other agreements
referred to herein) sets forth the entire understanding of the parties hereto
with respect to the subject matter hereof and supersedes all prior agreements,
written or oral, between them as to such subject matter.
13. Severability. If
any provision of this Agreement, or any application thereof to any
circumstances, is invalid, in whole or in part, such provision or application
shall to that extent be severable and shall not affect other provisions or
applications of this Agreement.
14. Governing
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware, without reference to
the principles of conflict of laws. All actions and proceedings arising out of
or relating to this Agreement shall be heard and determined in any Delaware
state or federal court and the parties hereto hereby consent to the jurisdiction
of such courts in any such action or proceeding; provided, however, that neither
party shall commence any such action or proceeding unless prior thereto the
parties have in good faith attempted to resolve the claim, dispute or cause of
action which is the subject of such action or proceeding through mediation by an
independent third party.
15. Legal
Fees. The parties hereto agree that the non-prevailing party
in any dispute, claim, action or proceeding between the parties hereto arising
out of or relating to the terms and conditions of this Agreement or any
provision thereof (a "Dispute"), shall reimburse the prevailing party for
reasonable attorney's fees and expenses incurred by the prevailing party in
connection with such Dispute; provided, however, that the Director shall only be
required to reimburse the Company for its fees and expenses incurred in
connection with a Dispute, if the Director's position in such Dispute was found
by the court, arbitrator or other person or entity presiding over such Dispute
to be frivolous or advanced not in good faith.
16. Modifications. Neither
this Agreement nor any provision hereof may be modified, altered, amended or
waived except by an instrument in writing duly signed by the party to be
charged.
17. Tense and
Headings. Whenever any words used herein are in the singular
form, they shall be construed as though they were also used in the plural form
in all cases where they would so apply. The headings contained herein are solely
for the purposes of reference, are not part of this Agreement and shall not in
any way affect the meaning or interpretation of this Agreement.
18. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original but all of which together shall constitute one and the
same instrument.
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IN
WITNESS WHEREOF, the Company has caused this Director Agreement to be executed
by authority of its Board of Directors, and the Director has hereunto set his
hand, on the day and year first above written.
/s/ Xxx
Xxxx
By:
Name: Xxx Xxxx
Title:
Chief Executive Officer
DIRECTOR
/s/ Xxxxx
X. Xxx
Name:
Xxxxx X. Xxx
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