EXHIBIT 10.19
EMPLOYMENT AGREEMENT
between
PEAK INTERNATIONAL LIMITED
and
Xxxx Xxxxxxx
Dated: February 14, 2002
THIS AGREEMENT is made as of the February 14, 2002 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
00X Xxxxxx Xxxx, Xxx Xxxxx, XX (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
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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
Santa Xxxxx 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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