EXHIBIT 10.147
GO-GRO INDUSTRIES LTD.
6/X. XXXXXXX INDUSTRIAL BUILDING, 00 XXXX XXX XXXX, XXXXXXX XXX, XXXX XXXX
TEL: 00000000 (12 LINES) FAX: 00000000
EMPLOYMENT AND NON-COMPETE AGREEMENT
THIS EMPLOYMENT AND NON-COMPETE AGREEMENT ("Agreement") is entered into by
and between Wai Check XXX ("Xx. Xxx") and Go-Gro Industries Limited, ("GGI"), a
corporation organized under the laws of Hong Kong, as of the 1st day of April,
1997.
WHEREAS GGI, itself and through its subsidiaries and affiliates, is in the
business of the manufacturing and distribution of lighting products, flashlights
and/or cordless hand tools and related products;
WHEREAS in view of Xx. Xxx'x service as the President of GGI for the last
ten years and his business experience, industry expertise, business contacts,
and his credentials and resources, GGI wishes to secure the continued services
of Xx. Xxx and Xx. Xxx wishes to commit his services to GGI in such capacity for
the period and on the terms hereinafter set forth;
NOW, THEREFORE, GGI and Xx. Xxx mutually agree and convenant as follows:
I. APPOINTMENT
GGI hereby appoints Xx. Xxx and Xx. Xxx hereby accepts the appointment as
the President of GGI on the terms and conditions hereinafter set forth.
II. TERMS OF EMPLOYMENT
The term of Xx. Xxx'x employment under this Agreement commenced on April
1, 1997 and shall continue for five years, unless Xx. Xxx is terminated pursuant
to the provisions hereunder. This Agreement shall renew for a successive
five-year period upon terms mutually acceptable to GGI and Xx. Xxx.
1
GO-GRO INDUSTRIES LTD.
6/X. XXXXXXX INDUSTRIAL BUILDING, 00 XXXX XXX XXXX, XXXXXXX XXX, XXXX XXXX
TEL: 00000000 (12 LINES) FAX: 00000000
III. DUTIES OF XX. XXX
Xx. Xxx'x duties and responsibilities shall be those customarily
associated with the position of the President and chief executive officer of GGI
or those other duties and responsibilities prescribed by from time to time by
GGI's Board of Directors ("Board"). Xx. Xxx agrees to devote his full time and
best efforts to these duties and responsibilities and shall render his services
exclusively to GGI and shall not be engaged in any other business activity or
such other activities as would reasonably conflict with his duties hereunder,
whether or not such activity is pursued for gain, profit, or other pecuniary
advantages.
Such duties and responsibilities shall include, but shall not be limited
to, the purchase, construction and/or lease of any existing or proposed factory
site or factory building in the People's Republic of China ("PRC") or elsewhere
for the manufacturing of lighting products, flashlights and cordless hand tools
and related products. Xx. Xxx agrees that he shall not engage in such activity
except for or on behalf of GGI, and that any opportunity to develop such a
building shall be the sole right of GGI. Xx. Xxx shall assist GGI as its
President and without additional compensation in securing the purchase,
construction and/or lease of any such factory sites or factory building,
including securing governmental approvals and permits, construction contracts
and architectural plans, quality assurance, planning and coordination of
equipment installation, and oversight of said project.
IV. LOCATION OF EMPLOYMENT.
Except for business travels in the ordinary course of business of GGI
necessitating Xx. Xxx'x temporary assignment in other countries, Xx. Xxx'x
location of employment shall either be Hong Kong or southern China.
V. COMPENSATION
The salary to be paid by GGI (a portion of said salary may be paid by
Shenzhen Jiaodianbao Electrical Products Co. Ltd.) to Xx. Xxx hereunder for his
services rendered shall be a total of U.S.$206,388 for the year ending March 31,
1998 with an additional fixed bonus of two months salary to be paid pro-rata
over each twelve (12) month period (April 1 - March 31) during the term of this
Agreement. Said salary and fixed bonus shall increase at eight percent (8%) per
annum during the term of this Agreement.
2
GO-GRO INDUSTRIES LTD.
6/X. XXXXXXX INDUSTRIAL BUILDING, 00 XXXX XXX XXXX, XXXXXXX XXX, XXXX XXXX
TEL: 00000000 (12 LINES) FAX: 00000000
In addition, during the term of this Agreement, if GGI's pre-tax income
exceeds Two Million U.S. Dollars (U.S.$2,000,000), Xx. Xxx shall be entitled to
a bonus of two (2) months salary (or portion thereof) for each One Million U.S.
Dollars ($1,000,000) of GGI's pre-tax income between Two Million U.S. Dollars
(U.S.$2,000,000) and Four Million U.S. Dollars (U.S.$4,000,000). All bonuses
shall be calculated based upon a twelve (12) month period ending December 31st
(the first bonus period being from January 1, 1997 to December 31, 1997) during
the term of this Agreement (the last bonus period shall be January 1, 2001 to
December 31, 2001). In addition, all such bonuses shall be paid within seventy
five (75) days after the date of the bonus period.
If in any such accounting year, GGI's pre-tax income exceeds Four Million
U.S. Dollars (U.S.$4,000,000), in addition to the bonus as provided in the
preceding sentence, Xx. Xxx shall be entitled to a bonus of one (1) months
salary (or portion thereof) for each One Million U.S. ($1,000,000) of GGI's
pre-tax income between Four Million U.S. Dollars (U.S.$4,000,000) and Six
Million U.S. Dollars ($6,000,000).
If in any such accounting year, GGI's pre-tax income exceeds Six
Million U.S. Dollars (U.S.$6,000,000), in addition to the bonuses as provided in
the preceding sentences, Xx. Xxx shall be entitled to a bonus of one-half (1/2)
months salary for each One Million U.S. Dollars ($1,000,000) of GGI's pre-tax
income between Six Million U.S. Dollars (U.S.$6,000,000) and Twelve Million U.S.
Dollars ($12,000,000).
If in any such accounting year, GGI's pre-tax income exceeds Twelve
Million U.S. Dollars (U.S.$12,000,000), in addition to the bonuses as provided
in the preceding sentences, Xx. Xxx shall be entitled to a bonus of one-fourth
(1/4) months salary for each One Million U.S. Dollars ($1,000,000) of GGI's
pre-tax income that exceeds Twelve Million U.S. Dollars (U.S.$12,000,000).
In the event of termination of employment hereunder, all accrual of
compensation ceases except for any termination compensation specifically
provided for herein. At the option of Xx. Xxx, the bonus provided in this
section shall be paid either in cash or in Catalina common stock calculated at
the average closing price on the New York Stock Exchange or other stock
exchanges for the nearest five successive trading days prior to the payment date
of the bonus or at such other rate as mutually agreed to by Xx. Xxx and the
Board.
3
GO-GRO INDUSTRIES LTD.
6/X. XXXXXXX INDUSTRIAL BUILDING, 00 XXXX XXX XXXX, XXXXXXX XXX, XXXX XXXX
TEL: 00000000 (12 LINES) FAX: 00000000
NOTWITHSTANDING anything contained in this Agreement, it is agreed that
Xx. Xxx'x salary and related bonuses, for any employment year, shall not be in
excess of the salary and related bonuses of Catalina Lighting, Inc.'s most
highly compensated Executive Vice President for the same twelve month period. In
calculating the salary and related bonuses of either Xx. Xxx or of Catalina's
most highly compensated Executive Vice President for any period, compensation
income resulting from any exercise of the individual's Catalina stock options
shall not be included in said calculation.
VI. FRINGE BENEFITS AND REIMBURSEMENT OF EXPENSES
Xx. Xxx shall be entitled to receive such benefits and to participate in
such benefit plans as are generally provided from time to time by the Company to
its senior management employees; provided, however, that nothing contained in
this Section VI shall be construed to obligate the Company to provide any
specific benefits to its employees generally.
In addition to the compensation and benefits listed above, GGI shall
reimburse Xx. Xxx for all reasonable, ordinary and necessary business expenses,
including travel, food, lodging and entertainment expenses, to the extent
pre-approved by the Board and actually incurred.
VII. VACATION
Xx. Xxx shall be entitled to five weeks' paid vacation during each full
year of employment, with vacation prorated for employment for any period less
than a full year. However, unused vacation time cannot be carried over to the
following year and cannot be taken as additional compensation in lieu of using
the vacation days.
VIII. TERMINATION OF EMPLOYMENT
(a) DEATH In the event of the death of Xx. Xxx, this Agreement shall
terminate and GGI shall have no further obligation or duties under this
Agreement except for the payment of any compensation already accrued but
4
GO-GRO INDUSTRIES LTD.
6/X. XXXXXXX INDUSTRIAL BUILDING, 00 XXXX XXX XXXX, XXXXXXX XXX, XXXX XXXX
TEL: 00000000 (12 LINES) FAX: 00000000
unpaid under Section V above and for expenses unreimbursed under Section VI
above.
(b) TERMINATION WITH CAUSE BY GGI Xx. Xxx'x employment shall be terminated
for cause upon a Board resolution to that effect which termination if so
determined by the Board consistently herewith may take effect immediately. If
the termination is for cause, GGI shall pay Xx. Xxx termination compensation
equal to thirty (30) calendar days' salary at the rate in effect on the date of
termination as described in Section V above, together with any compensation
already accrued but unpaid and reimbursement of any proper expenses incurred
before termination but unreimbursed under Section VI. For purpose of this
Agreement, the term "for cause" shall mean any action or any inaction by Xx. Xxx
which is reasonably believed by the Board to constitute:
(i) fraud, embezzlement, misappropriation, dishonesty or breach
of trust;
(ii) a felony or moral turpitude;
(iii) material breach or violation of any of the covenants,
agreements and obligations of Xx. Xxx set forth in this
Agreement;
(iv) a willful or knowing failure or refusal by Xx. Xxx to
perform any or all of his material duties and
responsibilities as an officer of GGI; or
(v) gross negligence by Xx. Xxx in the performance of any or
all of his material duties and responsibilities as an
officer of GGI;
provided, however, that in the event that the basis for any termination of Xx.
Xxx'x employment by GGI as set forth in the Board resolution is any or all of
the definitions of "for cause" set forth in Section VIII(b)(iii) or Section
VIII(b)(iv) of this Agreement, then, in such event, Xx. Xxx shall have thirty
(30) days from and after the date of his receipt of such termination notice to
cure the action or inaction specified therein to the reasonable satisfaction of
GGI.
5
GO-GRO INDUSTRIES LTD.
6/X. XXXXXXX INDUSTRIAL BUILDING, 00 XXXX XXX XXXX, XXXXXXX XXX, XXXX XXXX
TEL: 00000000 (12 LINES) FAX: 00000000
(c) TERMINATION WITHOUT CAUSE BY GGI Xx. Xxx'x employment shall be
terminated without cause upon a Board resolution to that effect, which if so
determined by the Board may take effect immediately. In the event of such
termination, GGI shall pay to Xx. Xxx at the regularly accrued payroll rate
termination compensation equal to the annual base salary for the remaining term
of this Agreement or three-year's annual base salary, whichever is less,
together with compensation accrued but unpaid and reimbursement of any proper
expenses incurred before termination but unreimbursed under Section VI.
IX. CONFIDENTIAL INFORMATION AND MATERIALS
(a) During the term of his employment, Xx. Xxx will receive, create, or
have access to records, files, correspondence, contracts, memoranda, studies,
analyses, surveys, drawings, documents, microfilms, audio and video recordings,
computer tapes, disks and programs, customer lists, trade secrets, customer
contact lists, contracts, training and operations manuals, reports, research
data and analyses, financial, marketing, and other information and
communications of GGI and/or its customers, prospective customers, or service
providers. Xx. Xxx agrees and admits that these confidential information and
materials are the sole property of GGI and/or its customers, prospective
customers, or service providers; are obtained by Xx. Xxx in confidence as a
fiduciary; and will not be used in competition with or to the detriment of GGI
or its customers, prospective customers, or service providers, or for any
purpose other than in the furtherance of GGI's business. In furtherance of these
ends, Xx. Xxx also agrees not to develop, distribute, or use (except in
furtherance of GGI's business) any materials which are similar to, derived in
whole or in part from, or competitive with said confidential information and
materials.
(b) Xx. Xxx will not attempt to or use, directly or indirectly, except
solely in furtherance of GGI's business, any confidential information and
materials of GGI or its customers, prospective customers, or service providers,
nor will Xx. Xxx disclose, disseminate, or make available any of this
confidential information and materials to any other person or entity, nor allow
other persons or entities to inspect, copy, or have access to this confidential
information and materials. Xx. Xxx agrees to take all necessary and reasonable
precautions to preserve and protect such confidential information and materials.
6
GO-GRO INDUSTRIES LTD.
6/X. XXXXXXX INDUSTRIAL BUILDING, 00 XXXX XXX XXXX, XXXXXXX XXX, XXXX XXXX
TEL: 00000000 (12 LINES) FAX: 00000000
(c) Xx. Xxx acknowledges that the common stock of Catalina is publicly
traded and agrees to abide by all Catalina policies, including its xxxxxxx
xxxxxxx policy with respect to any purchases or sales of Catalina common stock
by Xx. Xxx and purchases and sales of the stock any other company that is
engaged in transactions with Catalina. A copy of said policy is attached hereto
as Exhibit A.
X. NON-COMPETE
(a) For a period of sixty months after the termination of this Agreement
or any renewal hereof, or termination of employment prior to the term of this
Agreement, Xx. Xxx, either directly or indirectly, for himself or as employee,
agent or representative for, on behalf of, in concert with or through any other
persons or entities except GGI, shall not (i) engage in the manufacture,
distribution of lighting products or other business relating to the lighting
industry in Asia, Europe or North America; (ii) induce or attempt to induce any
customer or prospective customer of GGI to withdraw, curtail, divert, or cancel
its business with GGI or in any manner modify or fail to enter into any actual
or potential business relationship with GGI; or (iii) hire, solicit, include, or
attempt to hire, solicit or induce any employee, agent, representative, or
consultant of GGI or to render services directly or indirectly to Xx. Xxx or
any person or entity with which Xx. Xxx has any ownership or business
relationship.
(b) Xx. Xxx understands that the provisions of Subsection X(a) above may
limit his ability to earn a livelihood in a business similar to the business of
GGI but nevertheless agrees and hereby acknowledges that the consideration
provided under this Agreement is sufficient to justify the restrictions and
non-compete provisions contained herein.
XI. ENFORCEMENT
Xx. Xxx acknowledges that in the event of a breach or threatened breach of
any of the agreements and covenants contained herein, the damage resulting
would be difficult and perhaps impossible to accurately ascertain, and that, in
any event, there would not be an adequate remedy at law to protect against or
remedy any damage, although money damages may be awarded. Xx. Xxx further
acknowledges that, because of the sensitivity of customer relationships
7
GO-GRO INDUSTRIES LTD.
6/X. XXXXXXX INDUSTRIAL BUILDING, 00 XXXX XXX XXXX, XXXXXXX XXX, XXXX XXXX
TEL: 00000000 (12 LINES) FAX: 00000000
and confidential information, any such breach or threatened breach would result
in immediate and irreparable injury. Therefore, Xx. Xxx agrees that GGI, in
addition to any money damages which may be proved, will be entitled to
immediately restrain and enjoin him from any activity in breach of this
Agreement, if such a breach occurs or is eminent or threatened, without need for
any bond or other security, and further agrees not to assert any claim that an
adequate remedy at law exists for such breach.
XII. ENTIRE AGREEMENT
This Agreement embodies the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof and supersedes all
prior or contemporaneous agreements and understandings, whether or oral or
written, relating to such subject matter.
XIII. AMENDMENT OR MODIFICATION
No change or modification of this Agreement shall be valid or binding upon
the parties hereto, nor shall any waiver of any term or condition in the future
be so binding, unless such change or modification or waiver be in writing and
signed by the parties hereto.
XIV. GOVERNING LAW
This Agreement shall in all respects be governed by and construed under
the laws of Florida.
In the event any suit, action, or other proceeding is brought at law or in
equity, including a suit for declaratory relief, to enforce or interpret the
provisions of this Agreement, the prevailing party shall be entitled to recover
attorney's fees from the other party.
XV. ARBITRATION
At GGI's option, any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, may be settled by arbitration in
accordance
8
GO-GRO INDUSTRIES LTD.
6/X. XXXXXXX INDUSTRIAL BUILDING, 00 XXXX XXX XXXX, XXXXXXX XXX, XXXX XXXX
TEL: 00000000 (12 LINES) FAX: 00000000
with the rules of the Hong Kong International Arbitration Centre. The arbitrator
or arbitrators shall be deemed to possess the powers to issue mandatory orders
and restraining orders in connection with such arbitration; provided, however,
that nothing in this Section shall be construed so as to deny GGI the right and
power to seek and obtain money damages or injunctive relief in a court for any
breach or threatened breach by Xx. Xxx.
XVI. SEVERABILITY
All clauses of this Agreement are distinct and severable, and if any
clause shall be held to be invalid, unenforceable, failed for want of
consideration or illegal, the validity and enforceability of the remainder of
this Agreement shall not be affected, and the remainder contains sufficient
consideration to cause the parties to have entered into this Agreement
notwithstanding the severed clause or clauses.
The waiver by either party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
by any party.
XVII. EFFECT OF HEADINGS
Headings are for convenience only and are not to be construed as a part of
the Agreement.
XVIII. SET OFF
In the event of Xx. Xxx'x breach of any provision hereof, GGI shall be
entitled, at its option and not in lieu of any other remedies to which it may be
entitled, to set off any amounts due GGI or any affiliate of GGI against any
amount due and payable by GGI or any subsidiary or affiliate of GGI to Xx. Xxx
pursuant to this Agreement or otherwise.
XIX. IRREVOCABLE PROXY
Xx. Xxx has granted and will continue to abide by an irrevocable proxy
appointing Catalina Asia, a general partnership organized under the laws of Hong
Kong, and its successors, of which GGI is a wholly-owned subsidiary, as
9
GO-GRO INDUSTRIES LTD.
6/X. XXXXXXX INDUSTRIAL BUILDING, 00 XXXX XXX XXXX, XXXXXXX XXX, XXXX XXXX
TEL: 00000000 (12 LINES) FAX: 00000000
his irrevocable proxy for the purposes of voting or acting by written consent of
all the shares of Catalina common stock which is legally or beneficially owned
by him. No provision of this Employment and Non-Compete Agreement shall prevent
Xx. Xxx from purchasing and/or selling the Common Stock of Catalina Lighting,
Inc,; however, Xx. Xxx agrees to abide by Catalina's policies with respect to
xxxxxxx xxxxxxx (per Section IX(c) of this Agreement) and all applicable federal
security laws of the United States.
XX. ASSIGNABILITY
This agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, representatives, successors, and
assigns, except that Xx. Xxx may not assign any of this rights hereunder to any
party except with the prior written consent of the Board in the form of a Board
resolution.
XXI. ACKNOWLEDGMENT
Xx. Xxx acknowledges that he has consulted with or has had the opportunity
to consult with independent counsel of his own choice concerning this Agreement
and has been advised to do so by GGI, and that he understands this Agreement and
has entered into it freely based on his own judgment.
IN WITNESS WHEREOF this Agreement has been entered by the parties hereto
as of the day and year first above written.
GO-GRO INDUSTRIES LIMITED WAI CHECK XXX
/s/ ILLEGIBLE /s/ WAI CHECK XXX
------------------------------- ----------------------------
Authorized Signatory Wai Check XXX
Director
10
