EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS
AGREEMENT, made and entered into this 24th day of April 2008 by and between
SIMCLAR, INC., a Florida corporation with its offices at 0000 Xxxx
00xx
Xxxxxx,
Xxxxxxx, Xxxxxxx 00000 (the “Company”) and XXXXX XXXXXX, RESIDING AT 000 X.X.
00XX
Xxxxxx,
Xxxxxxxxxx, Xxxxxxx 00000 (the “Executive”)
WITNESSETH:
WHEREAS,
the Company is engaged in the manufacture and assembly of electro-mechanical
and
electronic components; and
WHEREAS,
the Executive has been and continues to be employed by the Company;
and
WHEREAS,
the parties wish to enter into this agreement whereby Company shall continue
the
employment of the Executive as President under the terms and conditions herein
contained.
NOW,
THEREFORE, for good and valuable consideration receipt of which is hereby
acknowledged and in consideration of the covenants and promises contained
herein, the parties mutually agrees as follows:
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1.
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Employment.
The Company hereby employs the Executive as its President, his duties
to
be such as are customarily performed by persons employed in such
capacity.
The Executive agrees to perform his duties in a competent and expeditious
manner and to devote his whole time, attention and best efforts in
acting
as President and in promoting the best interests of the Company.
The
Executive shall not knowingly do and shall exercise his best endeavours
to
prevent being done, any act or thing which may in any way be prejudicial
to the Company. The Executive shall perform his duties under the
direction
of the Chairman of the Board and Chief Executive Officer of the Company
and in conformity with all reasonable standards and policies established
by the Company, and shall not engage in any other business, directly
or
indirectly, and shall not sell nor cause to be sold any other products,
merchandise or services of any other business. The Executive shall
perform
such services for the Company and any of its subsidiaries and affiliates
within such hours of work as may from time to time reasonably be
required
of him and the Executive shall accept such offices, positions,
directorships and/or other responsibilities as the Company may determine,
all without being entitled to receive any additional remuneration
for work
outside his normal hours and for such other
positions.
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2.
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Term
of Employment.
The term of employment under the provisions of this Agreement shall
be for
a period of two (2) years effective January 1, 2008 and ending December
31, 2009 unless terminated sooner pursuant to the express provisions
hereof (the “Term”). Within 120 days of the expiration of this Agreement,
the Company will notify the Executive as to whether it intends to
negotiate a renewal of his employment and this
Agreement.
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3.
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Remuneration.
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(a)
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During
the Term, the Company will compensate the Executive for his services
with
a base
salary of One Hundred and Thirty Thousand ($147,000) Dollars per
annum,
subject
to deductions for withholding and Social Security and shall be paid
in
accordance
with the Company’s normal payroll procedures. The compensation shall
be
deemed to include any fee or remuneration to which the Executive
may
otherwise be
entitled in respect of his holding any office, directorship or other
position with the Company
or any of its subsidiaries or affiliates. The Executive shall be
entitled
to life
and health coverage and pension benefits available and in effect
for other
executive
employees of the Company.
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(b)
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In
addition to the base salary as provided in paragraph 3(a), the Company
shall pay the Executive an annual bonus. The amount of such annual
bonus
will be determined entirely at the discretion of the Chairman and
Chief
Executive Officer of the Company and will take account of the financial
performance of the Company in its most recent financial year and
the
performance of the Executive in his role as President of the Company
in
the same period. Such bonus, if any, shall be paid in cash no later
than
March 31st
of
each year.
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4.
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Expenses.
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(a)
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The
Company shall furnish to the Executive a company automobile and the
Company shall pay all automobile and travel expenses incurred by
the
Executive relating to the Company’s
business.
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(b)
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The
Company shall reimburse the Executive for reasonable expenses incurred
by
him in or about the performance of his duties in furtherance of the
Company’s business, provided the Executive shall submit to the Company an
expense report including vouchers for the same in accordance with
the
Company’s expense reimbursement
policy.
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5.
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Termination.
The Term shall terminate prior to December 31, 2009 upon the happening
of
any of the following events:
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(a)
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Automatically
and without notice from the Company upon the death of the
Executive.
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(b)
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Upon
written notice from the Company to the Executive in the event that
the
Executive becomes physically or mentally disabled, either totally
or
partially.
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(c)
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Upon
written notice by the Company on grounds of conviction of a crime,
failure
to carry out the policies of the Company, persistent absenteeism,
felonious act or other dishonest practice, non-performance of his
responsibilities and obligations to the Company, breach of the provisions
of this Agreement, gross misconduct or neglect, whether by commission
or
omission, conduct prejudicing or tending to bring himself or the
Company
or its subsidiaries or affiliates into contempt or disrepute, or
any
similar cause.
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| Upon termination of employment hereunder, the Company shall not be required to pay the Executive any severance pay, or any other sum except his salary, to the date of such termination; provided, however, that upon termination of the Executive only (i) through death of the Executive during the Term, or (ii) by the Company without cause which shall be deemed a reason other than by termination as per subparagraphs (b) and (c) of this section 5, then the Company shall pay the Executive one year salary, as his salary is at such date of termination, as severance pay. |
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6.
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Non-Competition.
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(a)
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The
Executive shall not at any time within a period of one year from
the date
of termination
of his employment hereunder for any reason whatsoever unless with
the
prior
written consent of the
Company,
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(i)
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directly
or indirectly, whether as principal, servant, agent or consultant,
canvass,
solicit or entice or endeavour to entice away from the Company
(which
term for purposes of this Section 6 means and includes any and all
of
the Company’s subsidiaries of affiliates) any director, officer or
employee
of the Company, or
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(ii)
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directly
or indirectly, whether as principal, servant or agent or in any other
capacity whatsoever carry on or be engaged or interested in any business
within
the United States and Mexico carrying on trade (“the trade”) as
manufacturer,
assembler, designer, installer, developer, producer, dealer in,
agent
for or distributor of electronic products and assemblies, such as
but
not
limited to conventional and moulded cables and wire harnesses and
printed
circuit-boards, electro-mechanical assemblies and products, plastic
insert
and injection moulded products, and other related services or products
(collectively “Products”) of the Company in competition with the
Company,
competition to mean those Products then produced and marketed with
customer as that term is used and defined herein, provided, the
Executive
shall be entitled to invest and/or own up to 5% of the equity of
any
such business; or
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(iii)
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directly
or indirectly, whether as principal, servant or agent, solicit or
seek
to
obtain for himself or for any person, firm or corporation by whom
he is
employed
or with whom he is associated, the business of or act as principal,
servant
or agent for, or directly or indirectly accept any benefit, whether
in
money
or otherwise from any business in connection with the trade conducted
for any person, firm or corporation, which either at the date of
termination
of his employment or at any time during the 36 months immediately
preceding such termination, is or was a customer of the Company,
provided that such restriction applies only with respect to Products
produced and marketed within such 36 month period by the Company
for that customer; and provided
further:
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(A)
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for
the purpose of this clause the expression “customer” shall be deemed to
include a prospective customer whose business was the subject of
negotiation
with the Company or any of its subsidiaries or affiliates at any
time
within a period of 12 months prior to the termination of the Executive,
and
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(B)
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in
the event the Executive, directly or indirectly, receives any benefit,
whether in money or otherwise as aforesaid, at or in respect of any
time
during
such non-compete period of one year he shall, without prejudice to
any
other rights or remedies available to the Company, be bound forthwith
to
account for and make payment to the Company in respect to such benefit,
and
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(C)
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for
the purpose of this clause the Executive acknowledges and agrees
that
where
multinational companies are customers of the Company the restrictions
herein contained shall have effect in relation to such
multinational
companies in whatever country they are
located.
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(b)
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Each
of the foregoing obligations shall be deemed to be separate and severable
obligations
and each said obligations shall be construed
accordingly.
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(c)
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While
the foregoing restrictions are considered by the parties to be reasonable
in all the
circumstances, it is agreed that if any of such restrictions shall
be held
to be void or
ineffective for whatever reason but would be held to be valid and
effective if part of
the wording thereof were deleted or the periods thereof reduced or
the
area thereof
reduced in scope, the said restrictions shall apply with such
modifications as may
be necessary to make them valid and
effective.
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| 7. | Restriction on Effect of Termination. The termination of this Agreement howsoever arising shall not operate to affect such of the provisions hereof as in accordance with their terms are expressed to operate or have effect thereafter. |
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8.
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Confidentiality.
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(a)
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The
Executive shall not during the period of his employment hereunder,
except
in the proper
course of his duties, and shall not at any time and in any circumstances
after the
termination thereof, divulge to any person whomsoever and shall use
his
best efforts
to prevent the publication or disclosure of any secrets, trade secrets,
confidential
knowledge or information or any information concerning the business,
finances
or affairs of the Company or of any of its subsidiaries and affiliates
or
of any
of their respective customers or clients (including without prejudice
to
the foregoing
generality the names and location of customers, names or persons
to
contact
within customer organization, specifications of customer needs,
specifications
of products meeting customer needs, cost and pricing policies, sources
of
supply of stocks and products and other proprietary information)
or any of
their dealings
or transactions which may come or may come to his knowledge during
or in
the
course of his employment, except what is already in the public
domain.
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(b)
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The
Executive shall immediately upon termination of his employment hereunder
for whatsoever reason deliver up to the Company all price lists,
lists of
customers, correspondence
and other documents, papers and property belonging to the Company
or
any of its subsidiaries or affiliates which may be have prepared
by him or
may have
come into this possession in the course of his employment hereunder
and
shall not
retain any copies thereof.
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9.
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Indemnity.
The Company shall indemnify and hold harmless the Executive from
and
against any and all claims, judgements, fines, penalties, liabilities
,
losses, costs and
expenses (including reasonable attorneys’ fees and costs) asserted against
or incurred
by the Executive as a result of acts or omissions of the Executive
taken
or made
in the course of performing his duties for the Company or by reason
of the
Executive
acting or having acted as an officer of the Company, to the maximum
extent
permitted by law, including Section 607.0850 of the Florida Business
Corporation
Act (including the advancement of expense provisions thereof);
provided,
however that such indemnity shall not apply to acts or omissions
of the
Executive
which constitute wilful misconduct, gross negligence or which were
intended
by the Executive to personally benefit the Executive, directly or
indirectly, at
the expense of the Company, unless the matter which benefits the
Executive
was first
fully disclosed to the board of directors of the Company and approved
by
said board.
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| 10. | Binding on Successors. The rights and obligations of the parties shall inure to the benefit and shall be binding upon their successors and assigns. |
| 11. | Waiver of Breach. The waiver by the Company or the Executive of a breach by either party of any provision hereof shall not operate or be construed to operate as a waiver by either party of any subsequent breach of any other provision hereof. |
| 12. | Survival of Provisions. The provisions of Sections 6 and 8 shall survive termination of employment of this Agreement. If any provision of this Agreement is declared invalid by any court or other competent authority the remaining provision of this Agreement shall not be affected thereby. |
| 13. | Entire Agreement. This instrument contains the entire agreement of the parties and may not be changed orally, but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification, extension or discharge is sought. |
| 14. | Governing Law. This Agreement shall be governed by the Laws of the State of Florida. |
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15.
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Assignability.
This agreement and its rights and obligations may not be assigned
by the
Executive. The Company may assign any of its rights and obligations
hereunder to
a successor or surviving corporation resulting from a merger,
consolidation, sale of
assets or stock, or other corporate
reorganization.
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IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed in its
corporate
name by an appropriate officer and its corporate seal to be hereto affixed,
and
the Executive has affixed his signature, all on the date and year first above
written.
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ATTEST:
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SIMCLAR,
INC.
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/s/
Xxxxxxx X.
Xxxxxxxx
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By
/s/ Xxxxxx X.
Xxxxxxx
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XXXXXXX
X XXXXXXXX, Secretary
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XXXXXX
X XXXXXXX,
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Chairman
of the Board and chief
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Executive
Officer
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WITNESS:
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EXECUTIVE
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/s/
Xxxxxx Xxxxxxx
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/s/
Xxxxx Xxxxxx
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XXXXXX
XXXXXXX
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XXXXX
XXXXXX
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