EXHIBIT 10.17
EMPLOYMENT AGREEMENT
between
PEAK INTERNATIONAL LIMITED
and
XXXX XXXXXXX
Dated: December 1, 2000
THIS AGREEMENT is made as of the first day of December, 2000 between PEAK
INTERNATIONAL LIMITED, a company incorporated in Bermuda, with its principal
office at 00000 Xxxxx Xxxxx, Xxxxxxx, XX 00000 (the "Company"); and Xxxx
Xxxxxxx, residing at 0000 Xxxxx Xxxx Xxxx, Xxxxxxxx, XX 00000-0000 (the
"Employee").
The parties agree as follows:
1. PAYMENT UPON TERMINATION OF EMPLOYMENT
1.1. The term ("Term") of this Agreement shall commence on the date of
execution of this Agreement and shall remain in effect for a
period of three years from the date of this agreement (the
"Employment").
1.2. Subject to clauses 1.4 and 3, the Employee shall be entitled to a
lump-sum payment in an amount equal to 12 months base salary at
the greater of the rate in effect on the effective date or as
increased from time to time hereafter, and any accrued but unused
vacation pay (the "Termination Payment") within 15 days of the
termination of the Employment during the term hereof, and all of
Employee's stock options which would have vested within 18 months
of the date of termination of the Employment shall immediately
vest in full and, notwithstanding anything to the contrary
contained in any other document, be fully exercisable for a period
of one year.
1.3. The Termination Payment shall be in full and final settlement of
any rights, payments or benefits to which the Employee is entitled
under any other agreement or arrangement pursuant to which he is
employed by the Company or any of its subsidiaries or affiliates
other than:
1.3.1. benefits pursuant to any life, disability, health, or other
insurance policy or benefit plan provided by the Company;
1.3.2. stock options issued to Employee pursuant to any stock
option plan of the Company.
1.4. The Employee shall not be entitled to the Termination Payment when
the Employment is terminated in any of the following circumstances
(the Employee being entitled, in such circumstances, only to
payment for accrued and unused vacation, any payments to which he
is otherwise entitled pursuant to life, disability, health or
other insurance plan, and to exercise any stock option to the
extent otherwise vested and exercisable under the terms of such
plan and stock option agreements):
1.4.1. the conviction of the Employee of a felony involving
dishonesty;
1.4.2. termination of the Employee for Cause. "Cause" shall mean
(i) Employee's conviction of or guilty plea to the
commission of an act or acts constituting a
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felony under the laws of the United States or any state
thereof, (ii) action by the Employee involving personal
dishonesty, theft or fraud in connection with the
Employee's duties as an officer of the Company, or (iii) a
breach of any one or more material terms of this Agreement
(including but not limited to the confidentiality and
non-solicitation provisions contained herein.)
1.4.3. any material breach by the Employee of the terms of this
Agreement that the Employee has failed to cure within 10
days of receipt of written notice of such breach from the
Company;
1.4.4. the death of the Employee;
1.4.5. the inability of the Employee due to ill health or physical
or mental condition to perform the duties and
responsibilities in the ordinary and usual manner required
of a person in the Employee's position for 180 consecutive
days;
1.4.6. the resignation by the Employee, except if such resignation
is the result of any of the following actions by the
company: (1) the assignment to the Employee of any duties
materially inconsistent with the Employee's position with
the Company on the date of this Agreement or a substantial
adverse alteration in the nature of the Employee's
responsibilities from those in effect on the date of this
Agreement; or (2) a material reduction by the Company of
the Employee's annual base salary in effect on the date
hereof or as the same may be increased from time to time.
2. CHANGE IN CONTROL
2.1. "Change in Control" of the Company means any transaction or series
of transactions in which any of the following occurs:
2.1.1. the acquisition by any "person" (as such term is used in
Section 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") (other than by an
Excluded Person (as defined below) or by the Company or a
person that directly or indirectly controls, is controlled
by, or is under common control with, the Company) of the
"beneficial ownership" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the
Company representing fifty percent (50%) or more of the
total voting power represented by the Company's then
outstanding voting securities,
2.1.2. the consummation of a merger or consolidation of the
Company with or into any other corporation, other than a
merger or consolidation that would result in the voting
securities of the Company outstanding prior thereto
continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving
entity) at least fifty percent (50%) of the total voting
power represented by the voting securities of the Company
or such surviving entity outstanding
immediately after such merger or consolidation, or
2.1.3. the consummation of a plan of complete liquidation of the
Company or of the sale or disposition by the Company of all
or substantially all of the Company's assets; provided,
however, that a Change of Control shall not be deemed to
have occurred as a result of the consummation of
transactions pursuant to that certain Purchase Agreement
relating to the Common Stock between Luckygold 18A Limited
and Peak TrENDS Trust dated as of May 28, 1998. As used
herein, "Excluded Person" means X.X. Xx, any of his
immediate family members, trusts established for the
exclusive benefit of X.X. Xx or any of his immediate family
members and any person who controls, is controlled by or is
under common control with X.X. Xx, including without
limitation, Luckygold 18A Limited; provided, however, that
for the purposes of the definition of Excluded Person,
"control" means the beneficial ownership of more than 50%
of the total voting power of a person normally entitled to
vote in the election of directors, managers or trustees, as
applicable to a person.
2.2. In the event Employee's employment with the Company is terminated
in anticipation of or within two years following a Change of
Control (i) by the Company without Good Cause or (ii) by Employee
with Good Reason (as defined below), then, in addition to the
payments Employee shall be entitled to pursuant to paragraph 1,
above, all of Employee's stock options shall immediately vest in
full and, notwithstanding anything to the contrary contained in
any other document, be fully exercisable for a period of one year.
3. LIMITATION ON PAYMENTS
3.1. In the event that the payments to Employee under this Agreement
(i) constitute "parachute payments" within the meaning of Section
280G of the Code, and (ii) but for this Section 3, would be
subject to the excise tax imposed by Section 4999 of the Internal
Revenue Code or any similar or successor provision, then the
payments shall be reduced to such lesser amount that would result
in no portion of the payments being subject to excise tax under
Section 4999 of the Internal Revenue Code. Any determination
required under this Section 3 shall be made by the Company's
independent accountants (the "Accountants"), whose determination
shall be conclusive and binding upon Employee and the Company for
all purposes. For purposes of making the calculations required by
this Section 3, the Accountants may make reasonable assumptions
and approximations concerning applicable taxes and may rely on
reasonable, good faith interpretations concerning the application
of Sections 280G and 4999 of the Code. The Company and Employee
shall furnish to the Accountants such information and documents as
the Accountants may reasonably request in order to make a
determination under this Section 3.
4. CONFIDENTIALITY
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4.1. The Employee understands that by virtue of the Employment, the
Employee has been and will be exposed to confidential information,
including all ideas, information and materials, tangible or
intangible, relating to the business of the Company and its
subsidiaries, their personnel (including their officers, directors,
shareholders, trustees, agents, employees and contractors), their
customers, clients, vendors, suppliers, distributors, consultants, and
others with whom the Company and its subsidiaries do business
("Confidential Information").
4.2. The Employee agrees not to disclose any Confidential Information
obtained during the Employment for a period of 12 months after the
termination of the Employment and thereafter not to disclose the same
unless the Employee shall have procured that the proposed recipient of
the Confidential Information has entered into an undertaking with the
Employee to keep the same confidential on terms no less exacting than
those set out herein; and provided always that the Employee shall not
be obliged to keep confidential any Confidential Information required
to be disclosed as a matter of law or to the extent that it becomes
generally known to the public other than as a result of any breach by
the Employee of the terms herein.
4.3. The Employee covenants and undertakes that after the termination of
the Employment, the Employee
4.3.1. shall not for a period of 12 months after the termination of
the Employment use any Confidential Information for any
purpose;
4.3.2. shall not retain or take with the Employee any Confidential
Information in a tangible form, which includes ideas,
information or materials in written or graphic form, on a
computer disc or other medium, or otherwise stored in or
available through electronic or other form ("Tangible Form");
and
4.3.3. shall immediately deliver to the Company any Confidential
Information in a Tangible Form that the Employee may then or
thereafter hold or control, as well as all other property,
equipment, documents or things that the Employee was issued or
otherwise received or obtained during the Employment.
5. RESTRICTIVE COVENANTS
5.1. The Employee covenants and undertakes that for a period of 12 months
following the termination of the Employment for any
reason, the Employee shall not:
5.2. directly or indirectly induce any person who is an employee of the
Company (or any of its subsidiaries) to terminate his or her
employment with the Company (or any of its subsidiaries), whether or
not such termination constitutes a breach of that person's employment
contract;
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5.3. directly or indirectly solicit the customer or business of any person
who, as at the date of termination of the Employment, is (or, within
the preceding period of 12 months, was) a client or customer of the
Company or its subsidiaries, with the intention or for the purpose of
supplying (or procuring the supply of) precision engineered
semiconductor packing material (including, without limitation, the
collecting and recycling of semiconductor packing material); or
5.4. directly or indirectly and whether on his own account or on account of
any future employer, partner or associate, compete with the Company or
otherwise engage in or provide services related to the precision
engineered semiconductor packing business (including, without
limitation, the business of collecting and recycling semiconductor
packing material) in Hong Kong, Singapore, Malaysia or the United
States of America.
5.5. Notwithstanding the term specified in clause 3.1, the Employee may
accept employment with, or provide services as an independent
contractor to, a client or customer of the Company or its subsidiaries
if, to do so, will not breach any term or condition of this Agreement.
6. RELEASE
6.1. In consideration of, and as an express condition precedent to, the
Company's obligation to make the Termination Payment, the Employee
shall sign and deliver to the Company a General Release in the form
attached hereto as Appendix 1.
6.2. The Company shall not be obliged to make the Termination Payment in
the event that the General Release is not signed and delivered to the
Company within 15 days of receipt of notice following termination of
the Employment and the Company shall, thereafter, be released of its
duties and obligations or further duties and obligations under this
Agreement and the Employee shall waive or cause to be waived any
claims that the Employee may have under this Agreement.
7. ASSIGNMENT
7.1. The rights and obligations under this Agreement shall inure to and be
binding upon the parties hereto and their respective heirs, successors
and assigns.
8. NOTICES
8.1. All notices and other communications provided for hereunder must be in
writing and must be sent by courier to the party's address indicated
above or to such other address as may be designated by a party by
notice.
8.2. Notices hereunder shall be effective when delivered.
9. MISCELLANEOUS
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9.1. This Agreement shall supersede any and all prior written or oral
agreements and discussions between the Employee and the Company
regarding the subject matter hereof and this Agreement contains the
entire understanding of the parties in respect of the subject matter
hereof.
9.2. If any of the restrictions contained in this Agreement shall be void
or unenforceable, then the remainder of this Agreement shall be
enforced to the fullest extent permitted by law.
9.3. This Agreement is made in and shall be governed by and construed in
accordance with the laws of the state of California.
10. DISPUTES
10.1. Any dispute hereunder shall be settled by binding arbitration in
Alameda County, CA in the English language before a single arbitrator
pursuant to the rules of the American Arbitration Association. Each
party shall bear its own legal fees and costs. The cost of arbitration
shall be paid by the Company.
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement the day
and year first above written.
/s/ Xxxx Xxxxxxx
----------------------------
Xxxx Xxxxxxx
SIGNED by /s/ Xxxxxx Xxxx
---------------------------
duly authorized for and on behalf of
PEAK INTERNATIONAL LIMITED
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APPENDIX I
GENERAL RELEASE
[Insert Date]
I, Xxxx Xxxxxxx, hereby release Peak International Limited (the "Company") of
certain duties and obligations and waive any rights or remedies that I may have
against the Company as provided in this letter. This letter is delivered
pursuant to the Employment Agreement entered into between the Company and me
dated December 1, 2000 (the "Employment Agreement").
In consideration of the promises and mutual covenants contained in the
Employment Agreement, and for good and valuable consideration, the receipt and
sufficiency of which is expressly acknowledged, I hereby:
1. release and discharge the Company and its subsidiaries, and each of
their respective past and present officers, directors, shareholders,
managers, employees and agents, and their respective successors and
assigns (collectively the "Released Parties"), from any and all claims
or demands, that I may have, whether past, present or future, against
the Released Parties, statutory or otherwise, to the fullest extent
permissible by law; and
2. waive the obligations, duties and liabilities that the Company may
have, whether past, present or future, statutory or otherwise, to the
fullest extent permissible by law; arising out of or relating in any
way to my employment with or termination of my employment with the
Company.
This letter shall be governed by, subject to and construed and enforced pursuant
to the terms and conditions of the Employment Agreement.
______________________________
Xxxx Xxxxxxx
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