EMPLOYMENT AGREEMENT
THIS
AGREEMENT is
made
the 7th day of December 0000
X
X X X X X N :
| (A) |
MEASUREMENT
SPECIALTIES INC. (hereinafter
the "Company"), a
Virginia corporation; and
|
| (B) |
XXXXX
XXXXX
(hereinafter the "Employee"),
an individual to be lawfully retained or employed by the Company
in the
People's Republic of China.
|
IT
IS AGREED
that the
Company has agreed to employ the Employee and the Employee has agreed to accept
such employment on the following terms and conditions:
| 1. |
DEFINITIONS
AND INTERPRETATION
|
| 1.1 |
In
this Agreement where the context so admits the following words and
expressions shall have the following
meanings:
|
“Board”
means
the board of directors of the Company from time to time;
“MSI
Sensors” means
MSI
Sensors (China) Limited, a company incorporated under the laws of the People's
Republic of China whose principal place of business is at Block 5A, Tian Fa
Building, Tian An Cyber Park, Fu Tian Xxxxxxxx, Xxxxxxxx, XXX 000000;
and
“Hong
Kong” means
the
Hong Kong Special Administrative Region of the People's Republic of
China;
“PRC”
means
the People's Republic of China;
“US$”
means
the United States of America dollars.
| 1.2 |
All
references in this Agreement to the Company shall include its successors
in title or assigns.
|
| 1.3 |
References
herein to Clauses are references to the clauses of this Agreement
which
shall be deemed to form part of this Agreement. The headings in this
Agreement are inserted for convenience of reference only and do not
affect
the interpretation hereof.
|
| 2. |
EMPLOYMENT
|
|
2.1
|
The
Employee shall at all times be an employee of the Company based in
the
United States but on a daily basis he shall serve the Company’s subsidiary
MSI Sensors in the PRC in the capacity of Vice President/General
Manager -
Asia or
such other capacity as the Chief Executive Officer (“CEO”) of the Company
may determine from time to time and shall at all times comply with
the
lawful and reasonable directions of the
CEO.
|
|
2.2
|
The
Employee shall devote full time, attention and energies to the business
of
the Company and MSI Sensors. During this employment, the Employee
shall
not engage in any other business activity, regardless of whether
such
activity is pursued for profit, gain or other pecuniary
advantage.
|
| 3. |
MANNER
OF
PERFORMANCE
|
| 3.1 |
The
Employee shall at all times faithfully, diligently and to the best
of his
ability, experience and talent, perform all duties that may be required
of
him or her pursuant to the express and implicit terms hereof, to
the
reasonable satisfaction of the Company. Such duties shall be rendered
at
the MSI Sensors’ principal place of business and at such other place as
the Company shall in good faith require or as the interests, needs,
businesses and opportunities of the Company shall require or make
advisable.
|
| 3.2 |
Subject
to any written regulations issued by the Company which are applicable
to
the Employee, neither the Employee nor any member of his family,
nor any
company or business entity in which he or they are interested, shall
be
entitled to receive or obtain directly or indirectly any discount,
rebate,
commission or other benefit in respect of any business transacted
(whether
or not by the Employee) by or on behalf of the Company, and if the
Employee, any member of his family or any company or business entity
in
which he is or they are interested, shall directly or indirectly
obtain
any such discount, rebate, commission or other benefit the Employee
shall
forthwith account to the Company for the amount received or value
of the
benefit so obtained.
|
| 3.3 |
The
Employee confirms that he has disclosed fully to the Company all
circumstances in respect of which there is, or there might be, a
conflict
of interest between the Company, and the Employee or any member of
his
family, and he agrees to disclose fully to the Company any such
circumstances which may arise during the
employment.
|
| 4. |
COMPENSATION
AND
REIMBURSEMENT
|
| 4.1 |
The
Company shall pay the Employee and the Employee agrees to accept
from the
Company for the Employee's services hereunder remuneration at the
rate of
US$190,000.00 (“Base Salary”) per annum payable semi-monthly. During the
Employment Term, the Employee may also be eligible for an annual
bonus of
up to 25% of his Base Salary based on minimum performance standards
to be
determined on an annual basis by the
Board.
|
| 4.2 |
In
addition to the foregoing remuneration, the Employee shall be entitled
to
the following benefits:
|
|
4.2.1
|
a
yearly vacation of 3 weeks at full pay, subject to limitations on
carry-forward of accrued, unused vacation days per MSI
policy;
|
|
4.2.2
|
moving
allowance/sign on bonus of
US$30,000.00;
|
|
4.2.3
|
100,000
stock options of the Company with a strike price based on the closing
price as of 11/30/05, or $24.88, which shall vest and become exercisable
over a five (5) year period with 1/5 of the stock options vesting
each
year of employment after the grant date. In the event of a Change
in
Control while Employee is still employed by the Company, all of the
stock
options shall vest and become exercisable as of the effective date
of the
Change in Control. For purposes of this Agreement, a “Change
in Control”
shall be deemed to have occurred
if:
|
| 4.2.3.1 |
any
“person” (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)), becomes
the “beneficial owner” (as defined in Rule 13d-3 promulgated under the
Exchange Act), directly or indirectly, of securities of the Company
representing 50% or more of (a) the outstanding shares of common
stock of
the Company; or (b) the combined voting power of the Company’s
then-outstanding securities entitled to vote generally in the election
of
directors; or
|
-
2 -
| 4.2.3.2 |
the
Company (a) is party to a merger, consolidation or exchange of securities
(excluding, without limitation, a public offering of the Company’s
securities) which results in the holders of voting securities of
the
Company outstanding immediately prior thereto failing to continue
to hold,
directly or indirectly, more than 50% of the combined voting power
of the
voting securities of the Company, the surviving entity or a parent
of the
Company or surviving entity outstanding immediately after such merger,
consolidation or exchange; or (b) sells or disposes of all or
substantially all of the Company’s assets (or any transaction having
similar effect is consummated);
|
|
4.2.4
|
housing
allowance for reasonable living expense (apartment or
equivalent);
|
|
4.2.5
|
reimbursement
for return airfare from Shenzhen to any US city for four (4) trips
per
annum;
|
|
4.2.6
|
benefits
equivalent to those received by other Company employees in the United
States, including health insurance under the health insurance plan
for
employees based in the United States, pending approval by the Company’s
health care provider; and
|
| 4.2.7 |
the
Company shall provide a“gross-up”
payment to Employee for any tax and tax preparation obligations that
Employee incurs as a result of his assignment to MSI Sensors in the
PRC
that are less favourable to Employee than the tax obligations had
he
worked at the Company’s headquarters in
Virginia.
|
| 4.3 |
The
Employee may incur reasonable expenses for furthering the Company's
business, including expenses for entertainment, travel and similar
items.
The Company shall reimburse the Employee for all business expenses
after
the Employee has pursuant to the Company's policies presented an
itemized
account of expenses.
|
| 5. |
CONFIDENTIALITY
|
| 5.1 |
The
Employee acknowledges that in the course of employment he may become
aware
of certain information about the Company's operations or clients.
The
Employee agrees not to disclose such information or use the information
in
any manner that might be harmful to the Company's business. The Employee
agrees that the restrictions contained or referred to in this Clause
5 are
reasonable and necessary to protect the legitimate business interests
of
the Company both during and after the termination of his
employment.
|
| 5.2 |
During
the term of this Agreement and for a period of ten (10) years from
the
date of termination or expiration of this Agreement for any reason
whatsoever, the Employee receiving any trade secrets or information
which
is confidential to Company, shall:
|
-
3 -
|
(1)
|
keep
confidential such confidential
information;
|
|
(2)
|
not
disclose the confidential information to any person, company, business
entity or other organization other than with the prior written consent
of
the Company; and
|
|
(3)
|
not
use the confidential information for any purpose other than the
performance of his or her obligations under this
Agreement.
|
| 5.3 |
The
Employee shall not at any time during the continuance of his employment
with the Company make any notes or memoranda relating to any matter
within
the scope of the Company’s business, dealings or affairs otherwise than
for the benefit of the Company.
|
| 5.4 |
The
obligations contained in Clause 5.2 shall cease to apply to any
information or knowledge which may subsequently come into the public
domain after the termination of employment other than by way of
unauthorised disclosure.
|
| 5.5 |
The
Employee shall not make or communicate any statement (whether written
or
oral) to any representative of the press, television, radio, or other
media and shall not write any article for the press or otherwise
for
publication on any matter connected with or relating to the business
of
the Company without obtaining the prior written approval of the
CEO.
|
| 6. |
NON-COMPETITION
|
| 6.1 |
The
Employee hereby agrees that he shall not for a period of [three years]
immediately following the termination of his employment within [Hong
Kong
and PRC] and whether on his own behalf or in conjunction with or
on behalf
of any other person, firm, company or other organization, (and whether
as
an employee, director, principal, agent, consultant or in any other
capacity whatsoever,) in competition with the Company directly or
indirectly (i) be employed or engaged in, or (ii) perform services
in
respect of, or (iii) be otherwise concerned with any business similar
to
that conducted by the Company, either by soliciting any of its accounts
or
by operating within the Company's general business
area.
|
| 6.2 |
The
Employee hereby agrees that he shall not for a period of [three years]
immediately following the termination of his employment whether on
his own
behalf or in conjunction with or on behalf of any person, company,
business entity or other organization (and whether as an employee,
director, principal, agent, consultant or in any other capacity
whatsoever), directly or indirectly (i) solicit or, (ii) assist in
soliciting, or (iii) accept, or (iv) facilitate the acceptance of,
or (v)
deal with, in competition with the Company, the custom or business
of any
customer or prospective customer :-
|
|
6.2.1
|
with
whom the Employee has had material contact or dealings on behalf
of the
Company during the [12 months] immediately preceding the date upon
which
his employment with the Company terminates;
or
|
|
6.2.2
|
for
whom the Employee was, in a client management capacity on behalf
of the
Company, directly responsible during the [12 months] immediately
preceding
the date upon which his employment with the Company
terminates.
|
| 6.3 |
The
Employee hereby agrees that he will not for a period of [three years]
immediately following the date of his termination either on his own
behalf
or in conjunction with or on behalf of any other person, company,
business
entity, or other organisation (and whether as an employee, principal,
agent, consultant or in any other capacity whatsoever), directly
or
indirectly:-
|
-
4 -
|
6.3.1
|
(i)
induce, or (ii) solicit, or (iii) entice or (iv) procure, any person
who
is an employee of the Company to leave the Company’s employment (as
applicable) where that person is an employee of the Company on the
date
upon which his employment with the Company
terminates;
|
|
6.3.2
|
be
personally involved to a material extent in (i) accepting into employment
or (ii) otherwise engaging or using the services of, any person who
is an
employee of the Company on the date upon which his employment with
the
Company terminates.
|
| 7. |
TERM
AND TERMINATION OF THIS
AGREEMENT
|
| 7.1 |
Provided
that any necessary visa and work permit is obtained, the employment
of the
Employee hereunder will commence on January 2, 2006 and will continue
thereafter until terminated in accordance with the provisions below.
|
| 7.2 |
Subject
to applicable law, either party may terminate this Agreement by giving
the
other three calendar months' advance notice in writing.
|
| 7.3 |
The
Company may by notice in writing immediately terminate this Agreement
if
the Employee is in breach of any of the terms of this Agreement which
in
the case of a breach capable of remedy is not remedied by the Employee
within 30 days of receipt by the Employee of a notice from Company
specifying the breach and requiring its remedy.
|
| 7.4 |
Subject
to applicable law, the Company may immediately terminate this Agreement
in
the event of: (i) the death of the Employee; (ii) the unwillingness
or
inability of the Employee to perform his duties; (iii) any criminal
conviction of the Employee; or (iv) acts of dishonesty, fraud or
gross
negligence by the Employee in connection with the performance of
his
duties to the Company after those acts have been disclosed to the
Employee
and the Employee accorded an opportunity to respond in writing or
in
person at the Employee's option to the Company, provided that the
Employee
shall receive no further compensation beyond the termination date
other
than benefits accrued or required by
law.
|
| 7.5 |
In
the event that the Company terminates this Agreement other than pursuant
to Clause 7.3 or 7.4, the Employee shall be entitled to a severance
payment equivalent to an amount up to one year of his Base Salary
(payable
semi-monthly) and also an allowance for repatriation and relocation
of up
to a maximum of US$10,000.00.
|
| 7.6 |
In
the event of the termination of this Agreement by the Employee, the
Employee shall reimburse any training costs, expenses and charges
reasonably incurred by the Company for the
Employee.
|
| 7.7 |
Should
the Company waive breach of any provision of this Agreement by the
Employee, that waiver will not operate or to be construed as a waiver
of
any further breach by the Employee.
|
| 7.8 |
Forthwith
upon the termination of the employment of the Employee hereunder,
and/or
at any other time if the Company shall so request, the Employee shall
deliver to the Company all documents (including correspondence, lists
of
customers, notes, memoranda, plans, drawings and other documents
of
whatsoever nature), models or samples made or compiled by or delivered
to
the Employee during his employment hereunder and concerning the business,
finances or affairs of the Company. For the avoidance of doubt it
is
hereby declared that the property in all such documents as aforesaid
shall
at all times be vested in the
Company.
|
-
5 -
| 7.9 |
The
Employee agrees that he will not at any time after the termination
of the
employment represent himself as still having any connection with
the
Company, save as a former employee for the purpose of communicating
with
prospective employers or complying with any applicable statutory
requirements.
|
| 8. |
NOTICES
|
| 8.1 |
Each
notice, demand or other communication given or made under this Agreement
shall be in writing and delivered or sent to the relevant party at
its
address or fax number set out below (or such other address or fax
number
as the addressee has by five days’ prior written notice specified to the
other party):
|
|
To
the Company:
|
Xxxxx
Xxxxxxx
|
|
|
0000
Xxxxx Xxx
|
||
|
Xxxxxxx,
XX 00000
|
||
|
Fax
number:
|
[•]
|
|
|
Attention:
|
[•]
|
|
|
To
the Executive:
|
Xxxxx
Xxxxx
|
|
|
0000
Xxxxxxx Xxx #000
|
||
|
Xxxxxxx,
XX 00000
|
||
|
Fax number:
|
[•]
|
|
| 8.2 |
Any
notice, demand or other communication so addressed to the relevant
party
shall be deemed to have been delivered (a) if given or made by letter,
when actually delivered to the relevant address; and (b) if given
or made
by fax, when despatched subject to receipt of machine-printed confirmation
of error-free despatch.
|
| 8.3 |
Any
notice to be given hereunder may be delivered (a) in the case of
the
Company by first class post addressed to its registered office for
the
time being and (b) in the case of the Employee, either to him personally
or by first class post to his last known
address.
|
| 9. |
ENTIRE
AGREEMENT
|
| 9.1 |
This
Agreement contains the entire understanding between the parties and
supersedes all (if any) subsisting agreements arrangements and
understandings (written or oral) relating to the employment of the
Employee and all such agreements arrangements and understandings
shall be
deemed to have been terminated by mutual
consent.
|
-
6 -
| 10. |
APPLICABLE
LAW
|
| 10.1 |
This
Agreement and any matters arising from or connected with it are governed
by the laws of the Commonwealth of Virginia. Should any disagreement
arise
between the parties as it relates to employment, each party shall
be
responsible for its/his own attorneys' fees and court costs, unless
the
law or the court specifies
otherwise.
|
| 10.2 |
Any
subsequent amendments to laws and regulations valid at the time of
execution of this Agreement
shall not affect the performance of this Agreement unless it is
specifically provided otherwise therein.
|
| 10.3 |
If,
for any reason, any provision of this Agreement is held invalid,
all other
provisions of this Agreement shall remain in effect.
|
| 10.4 |
The
rights and remedies conferred by this Agreement are in addition to
and
without derogation from any other rights and remedies that either
the
Employee or the Company may have at
law.
|
| 11. |
SETTLEMENT
OF DISPUTES
|
| 11.1 |
Without
in any manner limiting the provisions of this Agreement, any action
or
proceeding seeking to enforce any provision of, or based on any right
arising out of, this Agreement may be brought exclusively in the
courts of
the Commonwealth of Virginia, or, if it has or can acquire jurisdiction,
in the United States District Court for the district of Virginia
in which
the Company’s headquarters are located, and each of the parties consents
to the exclusive jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any
objection to venue laid therein. Process in any action or proceeding
referred to in the preceding sentence may be served on any party
anywhere
in the world. The foregoing shall not limit the rights of any party
to
bring the legal action or proceeding or to obtain execution of judgment
in
any appropriate jurisdiction. Each of the parties hereto further
agrees
that final judgment against it in any such action or proceeding shall
be
conclusive and may be enforced by any other jurisdiction within or
outside
the United States of America by suit on the judgment, a certified
or
exemplified copy of which shall be conclusive evidence
thereof.
|
| 12. |
MISCELLANEOUS
|
| 12.1 |
No
waiver or modification of this Agreement, or of any covenant, condition
or
limitation herein contained shall be valid unless in writing and
duly
executed by the party to be charged therewith.
|
| 12.2 |
This
Agreement is drawn up in the English language. If this Agreement
is
translated into another language, the English language text
prevails.
|
-
7 -
IN
WITNESS WHEREOF this Agreement has been executed and hereby delivered by the
parties or their authorized representatives on the date first set forth above.
|
WITNESS
|
XXXXX
XXXXX
|
|
|
Dated:
________________________, 2005
|
||
|
MEASUREMENT
SPECIALTIES, INC.
|
||
|
XXXXX
XXXXXXX
|
||
|
CHIEF
EXECUTIVE OFFICER
|
||
|
Dated:
________________________, 2005
|
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