Exhibit 10.36
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT dated as of June 26, 2000, is entered into by and
between MOTORCAR PARTS & ACCESSORIES, INC., a New York corporation currently
having an address at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 (the
"COMPANY"), and XXXXXXX X. XXXXXXX, an individual residing at 0000 Xxxxxx Xxxxx,
Xx Xxxxx, Xxxxxxxxxx 90531("EMPLOYEE").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company desires to employ Employee as its Chief Financial
Officer and Employee desires to be employed by the Company all upon the terms
and subject to the conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. EMPLOYMENT. Subject to and upon the terms and conditions contained
in this Agreement, the Company hereby agrees to employ Employee and Employee
agrees to enter the employ of the Company, for the period set forth in Paragraph
2 hereof, to render the services to the Company, its affiliates and/or
subsidiaries described in Paragraph 3 hereof.
2. TERM. Employee's term of employment under this Agreement shall
commence on the date hereof (the "COMMENCEMENT DATE") and shall continue for a
period through and including December 1, 2001,(the "EMPLOYMENT TERM") unless
extended in writing by both parties or earlier terminated pursuant to the terms
and conditions set forth herein; provided that this Agreement shall be
automatically renewed for successive one-year Employment Terms unless either the
Company or Employee elects not to so renew by providing written notice of such
election to the other party within ninety (90) days prior to the end of the
then-current Employment Term.
3. DUTIES.
(a) Employee shall be employed as the Company's Chief Financial Officer
and shall report to the President and Chief Executive Officer. It is agreed that
Employee shall perform his services in the Company's Torrance, California
facilities, or any other facilities mutually agreeable to the parties.
(b) Employee agrees to abide by all By-laws and applicable policies of
the Company promulgated from time to time by the Board of Directors of the
Company and the direction of the President and Chief Executive Officer.
4. EXCLUSIVE SERVICES AND BEST EFFORTS. Employee shall devote all of
his working time, attention, best efforts and ability to the service of the
Company, its affiliates and subsidiaries during the term of this Agreement.
5. COMPENSATION. As compensation for his services and covenants
hereunder, the Company shall pay Employee the following:
(a) BASE SALARY. The Company shall pay Employee a base salary
("Salary") of One Hundred Seventy-Five Thousand Dollars ($175,000) per year.
(b) STOCK OPTIONS. As additional consideration for the services to be
performed by Employee hereunder, the Company agrees, not later than June 26,
2000, to grant Employee an option to purchase, for a period of ten years from
such date of grant, Twenty-Five Thousand (25,000) shares of the Company's common
stock, par value $.01 per share (the "Common Stock"), pursuant to the terms of
the Company's 1994 Stock Option Plan, as amended to date (the "Plan"), and any
related stock option agreement(s) required to be executed in connection
therewith. Such option shall become exercisable on the date of grant with
respect to one-half of such shares of Common Stock and on the first anniversary
thereof with respect to the remaining such shares. The exercise price shall be
$0.931 per share.
(c) BONUS. Employee shall be paid an incentive bonus ("Bonus") equal to
one percent (1%) of the pre-tax income (without giving effect to any tax on such
income, whether actual or offset by loss carry overs) earned by the Company in
each fiscal year of the term of this Agreement, provided that no Bonus shall be
payable for any such year unless and until the amount of such pre-tax income in
such year shall be at least Two Million Dollars ($2,000,000), without carry over
from year to year. There shall be no minimum Bonus payable pursuant hereto and
the maximum shall be Fifty Thousand Dollars ($50,000). The foregoing Bonus shall
be paid by the Company within thirty (30) days after completion of the audited
financial results of the Company for the applicable fiscal year, which Bonus
shall be prorated (as reasonably determined by the Board of Directors) for any
partial year service by the Employee.
6. BUSINESS EXPENSES. Employee shall be reimbursed for, and entitled to
advances (subject to repayment to the Company if not actually incurred by
Employee) with respect to, only those business expenses incurred by him which
are reasonable and necessary for Employee to perform his duties under this
Agreement in accordance with policies established from time to time by the
Company. All expenditures in excess of Five Hundred Dollars ($500.00) must be
approved by the President of the Company prior to being incurred.
7. EMPLOYEE BENEFITS.
(a) Employee shall be entitled to three (3) weeks paid vacation each
year during the Employment Term at such times as do not, in the opinion of the
President and Chief Executive Officer, interfere with Employee's performance of
his duties hereunder.
(b) Employee shall receive as an allowance for medical insurance during
the term of this Agreement the sum of Two Thousand Eighty-Three Dollars
($2,083.00) per month. The Company may withhold from any benefits payable to
Employee all federal, state, local and other taxes and amounts as shall be
permitted or required pursuant to law, rule or regulation. All of the benefits
to which Employee may be entitled may be changed from time to time or withdrawn
at any time in the sole discretion of the Company.
(c) During the Employment Term the Company shall provide to executive
an automobile allowance in the amount of Five Hundred Dollars ($500) per month,
payable monthly.
8. DEATH AND DISABILITY.
(a) The Employment Term shall terminate on the date of Employee's
death, in which event Employee's accrued Salary and Bonus, reimbursable expenses
and benefits, including accrued but unused vacation time owing to Employee
through the date of Employee's death shall be paid to his estate. Employee's
estate will not be entitled to any other compensation upon termination of this
Agreement pursuant to this Paragraph 8(a).
(b) If, during the Employment Term, in the opinion of a duly licensed
physician selected by Employee and reasonably acceptable to the Company,
Employee, because of physical or mental illness or incapacity, shall become
substantially unable to perform the duties and services required of him under
this Agreement for a period of three (3) consecutive months the Company may,
upon at least ten (10) days' prior written notice given at any time after the
expiration of such three-month period to Employee of its intention to do so,
terminate this Agreement as of such date as may be set forth in the notice. In
case of such termination, Employee shall be entitled to receive his accrued
Salary and Bonus, if any, reimbursable expenses and benefits owing to Employee
through the date of termination. Employee will not be entitled to any other
compensation upon termination of this Agreement pursuant to this Paragraph 8(b).
9. TERMINATION FOR CAUSE.
(a) The Company may terminate the employment of Employee for Cause (as
hereinafter defined) without prior notice. Employee may terminate his employment
at any time for any reason upon sixty (60) days' written notice. Upon any such
termination, the Company shall be released from any and all further obligations
under this Agreement except that the Company shall be obligated to pay Employee
his Salary, reimbursable expenses and benefits owing to Employee through the day
on which Employee is terminated. Employee will not be entitled to any other
compensation upon termination of this Agreement pursuant to this Paragraph 9(a).
(b) As used herein, the term "CAUSE" shall mean: (i) the willful
failure of Employee to perform his duties pursuant to Paragraph 3 hereof, which
failure is not cured by Employee within ten (10) days following notice thereof
from the Company; (ii) any other material breach of this Agreement by Employee,
including any of the material representations or warranties made by Employee;
(iii) any act, or failure to act, by Employee in bad faith or to the detriment
of the Company; (iv) the commission by Employee of an act involving moral
turpitude, dishonesty, theft, unethical business conduct, or any other conduct
which significantly impairs the reputation of, or xxxxx, the Company, its
subsidiaries or affiliates; (v) any misrepresentation, concealment or omission
by Employee of any material fact in seeking employment hereunder; or (vi) any
other occurrence or circumstance generally recognized a "cause" for employment
termination under applicable law.
10. DISCLOSURE OF INFORMATION AND RESTRICTIVE COVENANT. Employee
acknowledges that, by his employment, he has been and will be in a confidential
relationship with the Company and will have access to confidential information
and trade secrets of the Company, its subsidiaries and affiliates. Confidential
information and trade secrets include, but are not limited to, customer,
supplier and client lists, price lists, marketing, distribution and sales
strategies and procedures, operational and equipment techniques, business plans
and systems, quality control procedures and systems, special projects and
technological research, including projects, research and reports for any entity
or client or any project, research, report or the like concerning sales or
manufacturing or new technology, employee compensation plans and any other
information relating thereto, and any other records, files, drawings,
inventions, discoveries, applications, processes, data and information
concerning the business of the Company which are not in the public domain.
Employee agrees that in consideration of the execution of this Agreement by the
Company, except in any way with respect to foreign affiliates of the Company as
of the date hereof:
(a) Employee will not, during the term of this Agreement or at any time
thereafter, use, or disclose to any third party, trade secrets or confidential
information of the Company, including, but not limited to, confidential
information or trade secrets belonging or relating to the Company, its
subsidiaries, affiliates, customers and clients or proprietary processes or
procedures of the Company, its subsidiaries, affiliates, customers and clients.
Proprietary processes and procedures shall include, but shall not be limited to,
all information which is known or intended to be known only to employees of the
Company, its respective subsidiaries and affiliates or others in a confidential
relationship with the Company or its respective subsidiaries and affiliates
which relates to business matters.
(b) Employee will not, during the term of this Agreement, directly or
indirectly, under any circumstance other than at the direction and for the
benefit of the Company, engage in or participate in any business activity,
including, but not limited to, acting as a director, franchisor or franchisee,
proprietor, syndicate member, shareholder or creditor or with a person having
any other relationship with any other business, company, firm occupation or
business activity, in any geographic area within the United States that is,
directly or indirectly, competitive with any business completed by the Company
or any of its subsidiaries or affiliates during the term of this Agreement or
thereafter. Should Employee own 5% or less of the issued and outstanding shares
of a class of securities of a corporation the securities of which are traded on
a national securities exchange or in the over-the-counter market, such ownership
shall not cause Employee to be deemed a shareholder under this Paragraph 10(b).
(c) Employee will not, during the term of this Agreement and for a
period of two (2) years thereafter, on his behalf or on behalf of any other
business enterprise, directly or indirectly, under any circumstance other than
at the direction and for the benefit of the Company, solicit or induce any
creditor, customer, supplier, officer, employee or agent of the Company or any
of its subsidiaries or affiliates to sever its relationship with or leave the
employ of any of such entities.
(d) This Paragraph 10 and Paragraphs 11, 12 and 13 hereof shall survive
the expiration or termination of this Agreement for any reason.
(e) It is expressly agreed by Employee that the nature and scope of
each of the provisions set forth above in this Paragraph 10 are reasonable and
necessary. If, for any reason, any aspect of the above provisions as it applies
to Employee is determined by a court of competent jurisdiction to be
unreasonable or unenforceable, the provisions shall only be modified to the
minimum extent required to make the provisions reasonable and/or enforceable, as
the case may be. Employee acknowledges and agrees that his services are of a
unique character and expressly grants to the Company or any subsidiary,
successor or assignee of the Company, the right to enforce the provisions above
through the use of all remedies available at law or in equity, including, but
not limited to, injunctive relief.
11. COMPANY PROPERTY.
(a) Any patents, inventions, discoveries, applications or processes,
designs, devised, planned, applied, created, discovered or invented by Employee
in the course of Employee's employment under this Agreement and which pertain to
any aspect of the Company's or its respective subsidiaries' or affiliates'
business shall be the sole and absolute property of the Company, and Employee
shall make prompt report thereof to the Company and promptly execute any and all
documents reasonably requested to assure the Company the full and complete
ownership thereof.
(b) All records, files, lists, including computer generated lists,
drawings, documents, equipment and similar items relating to the Company's
business which Employee shall prepare or receive from the Company shall remain
the Company's sole and exclusive property. Upon termination of this Agreement,
Employee shall promptly return to the Company all property of the Company in his
possession. Employee further represents that he will not copy or cause to be
copied, print out or cause to be printed out any software, documents or other
materials originating with or belonging to the Company. Employee additionally
represents that upon termination of his employment with the Company, he will not
retain in his possession any such software, documents or other materials.
12. REMEDY. It is mutually understood and agreed that Employee's
services are special, unique, unusual, extraordinary and of an intellectual
character giving them a peculiar value, the loss of which cannot be reasonably
or adequately compensated in damages in an action at law. Accordingly, in the
event of any breach of this Agreement by Employee, including, but not limited
to, the breach of the non-disclosure, non-solicitation and non-compete clauses
under Paragraph 10 hereof, the Company shall be entitled to equitable relief by
way of injunction or otherwise in addition to damages the Company may be
entitled to recover. In addition, the Company shall be entitled to reimbursement
from Employee, upon request, of any and all reasonable attorneys7 fees and
expenses incurred by it in enforcing any term or provision of this Agreement.
13. REPRESENTATIONS AND WARRANTIES OF EMPLOYEES.
(a) In order to induce the Company to enter into this Agreement,
Employee hereby represents and warrants to the Company as follows: (i) Employee
has the legal capacity and unrestricted right to execute and deliver this
Agreement and to perform all of his obligations hereunder; (ii) the execution
and delivery of this Agreement by Employee and the performance of his
obligations hereunder will not violate or be in conflict with any fiduciary or
other duty, instrument, agreement, document., arrangement or other understanding
to which Employee is a party or by which he is or may be bound or subject; and
(iii) Employee is not a party to any instrument, agreement, document,
arrangement or other understanding with any person (other than the Company)
requiring or restricting the use or disclosure of any confidential information
or the provision of any employment, consulting or other services, except one
confidentiality agreement unrelated to the Company's industry and having no
relationship or impact of any kind whatsoever with respect to this Agreement and
the transactions contemplated hereby.
(b) Employee hereby agrees to indemnify and hold harmless the Company
from and against any and all losses, costs, damages and expenses (including,
without limitation, its reasonable attorneys' fees) incurred or suffered by the
Company resulting from any breach by Employee of any of his representations or
warranties set forth in Paragraph 13(a) hereof.
14. NOTICES. All notices given hereunder shall be in writing and shall
be deemed effectively given when mailed, if sent by registered or certified
mail, return receipt requested, addressed to Employee at his address set forth
on the first page of this Agreement and to the Company at its address set forth
on the first page of this Agreement.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding of the parties with respect to its subject matter and no change,
alteration or modification hereof may be made except in writing signed by the
parties hereto. Any prior or other agreements, promises, negotiations or
representations not expressly set forth in this Agreement are of no force or
effect.
16. SEVERABILITY. If any provision of this Agreement shall be
unenforceable under any applicable law, then notwithstanding such
unenforceability, the remainder of this Agreement shall continue in full force
and effect.
17. WAIVERS, MODIFICATIONS, ETC. No amendment, modification or waiver
of any provision of this Agreement shall be effective unless the same shall be
in writing and signed by each of the parties hereto, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
18. INDEMNIFICATION. Company shall indemnify Employee against any and
all claims of third parties arising out of the lawful and authorized performance
of this duties pursuant to this Agreement by Employee.
19. ASSIGNMENT. Neither this Agreement nor any of Employee's rights,
powers, duties or obligation hereunder, may be assigned by Employee. This
Agreement shall be binding upon and inure to the benefit of Employee and his
heirs and legal representatives and the Company and its successors and assigns.
20. APPLICABLE LAW. This Agreement shall be deemed to have been made,
drafted, negotiated and the transactions contemplated hereby consummated and
fully performed in the State of California and shall be governed by and
construed in accordance with the laws of the State of California, without regard
to the conflicts of law rules thereof. Nothing contained in this Agreement shall
be construed so as to require the commission of any act contrary to law, and
whenever there is any conflict between any provision of this Agreement and any
statute, law, ordinance, order or regulation, contrary to which the parties
hereto have no legal right to contract, the latter shall prevail, but in such
event any provision of this Agreement so affected shall be curtailed and limited
only to the extent necessary to bring it within the legal requirements.
21. JURISDICTION AND VENUE. It is hereby irrevocably agreed that all
disputes or controversies between the Company and Employee arising out of, in
connection with or relating to this Agreement shall be exclusively heard,
settled and determined by arbitration to be held in the City of Los Angeles,
County of Los Angeles, in accordance with the Commercial Arbitration Rules of
the American Arbitration Association then in effect. The parties also agree that
judgment may be entered on the arbitrator's award by any court having
jurisdiction thereof and the parties consent to the jurisdiction of any court
located in the City of Los Angeles, County of Los Angeles, for this purpose.
22. FULL UNDERSTANDING. Employee represents and agrees that he fully
understands his right to discuss all aspects of this Agreement with his private
attorney, that to the extent, if any that he desired, he availed himself of this
right, that he has carefully read and fully understands all of the provisions of
this Agreement, that he is competent to execute this Agreement, that his
agreement to execute this Agreement has not been obtained by any duress and that
he freely and voluntarily enters into it, and that he has read this document in
its entirety and fully understands the meaning, intent and consequences of this
document which is that it constitutes an agreement of employment.
23. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same agreement.
24. LEGAL REPRESENTATION. The parties hereto acknowledge that each has
been represented by independent counsel of such party's own choice throughout
all of the negotiations which preceded the execution of this Settlement
Agreement and Mutual Release and in connection with the preparation and
execution of this Settlement Agreement and Mutual Release or has had the
opportunity to do so.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
MOTORCAR PARTS & ACCESSORIES, INC.
By:
--------------------------------
Name: Xxxxxxx Xxxxx
Title: President
XXXXXXX X. XXXXXXX
