Exhibit 10.2
AMP Holding Inc.
100 Commerce Drive
Loveland, Ohio 45140
February
13, 2015
Marshall
S. Cogan
Letter
of Appointment — Board of Directors
Dear
Mr. Cogan:
We
are pleased to offer you the role of Chairman of the Board of Directors (the "Board") of AMP Holding Inc. (the "Company").
This letter contains the terms of your appointment as Chairman of the Board of Directors of the Company and will be effective
from the date of the signing of this letter.
| a) | | You
will be expected to attend and chair all meetings (either in person or by teleconference) of the Board of the Company, of which
we expect to hold approximately four per annum as well as sign all written consents if you deem appropriate. In addition, you
will be expected to perform such other duties as are reasonably contemplated by your holding office as Chairman of the Company
or which may reasonably be assigned to you by the Board from time to time. |
| i) | | Perform
to the best of your abilities and knowledge the duties reasonably assigned to you by the Board from time to time, whether during
or outside business hours and at such places as the Board reasonably requires; |
| ii) | | Use
all reasonable efforts to promote the interests of the Company; |
| iii) | | Attend
directors' meetings; |
| iv) | | Act
in the best interests of the Company; and |
| v) | | Work
closely with the other directors and the Chief Executive Officer. |
| c) | | As
you will appreciate, however, your time commitment will ultimately be a product of the matters confronting the Company from time
to time and matters properly requiring your attention as a director of the Company. |
| i) | | The
Company will pay you an annual fee of US$40,000. |
| ii) | | The Company shall pay the annual
fee in equal quarterly instalments in arrears on the last day of each quarter. Your first and last instalments of the annual fee
will be apportioned if necessary. The fee will be paid by wire to your nominated bank account. |
| iii) | | Your
fees shall be subject to adjustment periodically as determined by the Board. |
| 3. |
Expenses: Subject to you providing the Company with
receipts or other evidence of payment, the Company will pay for or reimburse you for all travelling, hotel and other expenses
that are preapproved in writing by the Company and are reasonably incurred by you in connection with attending and returning from
Board, Committee, Company, meetings or otherwise in connection with the Company's business. Reasonable travel and out of pocket
expenses used in connection with the business of the Group shall include: |
| a) | | Domestic
and international travel (economy class under 4 hours and business class over 4 hours); and |
| 4. |
Termination of Appointment: |
| a) | | Your appointment as the Director
may be terminated at any time by the vote of the stockholders of the Company in accordance with the certificate of incorporation
and bylaws of the Company. |
| b) | | You acknowledge and agree that
if the shareholders of the Company terminate your appointment, you will have no claim of any kind against the Company by reason
of the termination. |
| c) | | You
are at liberty to terminate the appointment at any time by notice in writing to the Company. |
| 5. |
What happens after termination of appointment? |
If
your appointment is terminated for any reason or you resign for any reason:
| a) | | The
Company may set off any amounts you owe the Company against any amounts the Company owes to you as a Director at the date of termination
except for amounts the Company is not entitled by law to set off; |
| b) | | You must return all the Company's
property (including property leased by the Company) to the Company on termination including all written or machine readable material,
software, computers, credit cards, keys and vehicles; and |
| c) | | You
must not record any confidential information in any form after termination. |
| 6. |
Prohibited Activities: |
| a) |
| You undertake to the Company
that you will not during the term of your appointment engage in a business or an activity that would place you in a position of
conflict in respect of the performance of your duties. |
| b) | | Except
as permitted in this Agreement or as approved by the Company, you will not (i) use any Confidential Information (as defined below)
or (ii) disseminate or in any way disclose the Confidential Information to any person, firm, business or governmental agency or
department. You may use the Confidential Information to perform your Duties for the benefit of Company. You shall treat all Confidential
Information with the same degree of care as you accord to your own confidential information, but in no case shall you use less
than reasonable care. You shall immediately give notice to Company of any unauthorized use or disclosure of the Confidential Information.
You shall assist Company in remedying any the unauthorized use or disclosure of the Confidential Information. You agree not to
communicate any information to Company in violation of the proprietary rights of any third party. |
| | “Confidential
Information" means (a) any technical and non-technical information related to the Company's business and current, future
and proposed products and services of Company, including for example and without limitation, Company innovations, intellectual
property, and information concerning research, development, design details and specifications, financial information, procurement
requirements, engineering and manufacturing information, customer lists, business forecasts, sales information, marketing plans
and business plans, and provided, in each case, that each is marked as "confidential" or "proprietary" and
(b) any information that Company has received from others that may be made known to you and that Company is obligated to treat
as confidential or proprietary, and provided, in each case, that each is marked as "confidential" or "proprietary". |
| 7. |
Notices and Other Communications: |
A
notice, demand, consent, approval or communication under this letter (collectively a "Notice") must be:
| i) | | In writing and in English directed
to the address advised by the recipient for notices, as varied by any notice; and |
| ii) | | Hand
delivered or sent by prepaid post or facsimile to that address. |
| b) | | Effective on Receipt: A Notice
given in accordance with section 7a takes effect when received (or at a later time specified in the Notice), and is taken to be
received: |
| i) | | If
hand delivered, on delivery; |
| ii) | | If sent by prepaid post, two
Business Days after the date of posting (or seven Business Days after the date of posting if posted to or from outside The United
States of America); |
| iii) | | If
sent by facsimile, when the sender's facsimile system generates a message confirming successful transmission of the entire Notice
unless, within eight Business Hours after the transmission, the recipient informs the sender that it has not received the entire
Notice; |
| | but if
the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to
be received at 9.00am on the Business Day after that delivery, receipt or transmission. |
| a) | | Alterations:
This letter may be altered only in writing signed by each party. |
| b) | Approvals and consents: Except where this letter expressly
states otherwise, a party may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under
this letter. |
| c) | Assignment:
This letter may NOT be assigned by either party. |
| d)
| Costs: Each
party must pay its own costs of negotiating, preparing and executing this letter. |
| e) | Survival:
Any indemnity in this letter is independent and survives termination of this letter.
Any other provision by its nature intended to survive termination of this letter survives
termination of this letter. |
| f) | Counterparts:
This letter may be executed in counterparts. All executed counterparts constitute one
document. |
| g) | No
Merger: The rights and obligations of the parties under this letter do not merge on completion
of any transaction contemplated by this letter. |
| h) | Entire
Agreement: This letter constitutes the entire agreement between the parties in connection
with its subject matter and supersedes all previous agreements or understandings between
the parties in connection with its subject matter. |
| i) | Further
Action: Each party must do, at its own expense, everything reasonably necessary (including
executing documents) to give full effect to this letter and the transactions contemplated
by it. |
| j) | Waiver:
A party does not waive a right, power or remedy if it fails to exercise or delays in
exercising the right, power or remedy. A single or partial exercise of a right, power
or remedy does not prevent another or further exercise of that or another right, power
or remedy. A waiver of a right, power or remedy must be in writing and signed by the
party giving the waiver. |
| k) | Relationship:
Except where this letter expressly states otherwise, it does not create a relationship
of employment, agency or partnership between the parties. |
| | | |
| | l) | Confidentiality: A party may only use the confidential information of another party for the purposes of this letter, and must
keep the existence of this letter and the terms of it and the confidential information of another party confidential information
except where: |
| | | |
| | | i) |
The
information is public knowledge (but not because of a breach of this letter) or the party has independently created the information;
or |
| | | ii)
|
Disclosure is required by law or a regulatory body (including a relevant stock exchange). |
| | | |
| | m) | Announcements: A public announcement in connection with this letter or a transaction contemplated by it must be agreed by the
parties before it is made, except if required by law or a regulatory body (including a relevant stock exchange). |
| 9. |
Insurance: The Company has directors' and officers' liability insurance under which you are covered in the US and elsewhere for
all usual risks during the term of your appointment as the Director. The Company will maintain that cover for the full term of
your appointment. |
| 10. | Contract for Services: This is a contract for services
and is not a contract of employment. |
| 11. | Governing
Law: This Agreement shall be governed by the laws of the State of Ohio (without giving
effect to choice of law principles or rules thereof that would cause the application
of the laws of any jurisdiction other than the State of Ohio) and the invalidity or unenforceability
of any provision hereof shall in no way affect the validity or enforceability of any
other provision. Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating or affecting the remaining
provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction. |
Please
sign the attached copy of this letter to indicate that you have read, understood and accept the terms of your appointment.
Yours
Sincerely, AMP
Holding Inc.
By:
Name:
Stephen S. Burns Title:
CEO and Director
Agreed
to and accepted by:
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