EXHIBIT 10.15
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement"), effective
this 22nd day of April, 1999 (the "Effective Date"), is entered into by and
between ▇▇▇▇▇▇ ▇. ▇▇▇▇ ("Executive") and Peak International Limited, a Bermuda
holding company ("Company").
WHEREAS, the Company wishes to employ Executive;
WHEREAS, Executive is willing to commit himself to serve
the Company on the terms and conditions herein provided; and
WHEREAS, in order to effect the foregoing, the Company and
Executive wish to enter into this Agreement on the terms and conditions herein
provided.
NOW, THEREFORE, in consideration of the premises and the
respective covenants and agreements of the parties herein contained, anal
intending to be legally bound hereby, the parties hereto agree as follows:
1. Employment. The Company does hereby employ, engage and hire
Executive as President and Chief Executive Officer of the Company, and Executive
does hereby accept and agree to such hiring, engagement and employment. In such
capacity, Executive shall have such executive arid managerial powers and duties
with respect to the Company as may be from time to time reasonably assigned to
him by the Board. Except for sick leave, reasonable vacations and excused leaves
of absence, Executive shall, throughout his period of employment, devote
substantially all his working time, attention, knowledge and skills, diligently
and to the best of his ability, to the performance of such duties in furtherance
of the business of the Company.
2. Term of Agreement. The term ("Term") of this Agreement shall
commence on the Effective Date and shall continue for a period of three (3)
years; provided, however, that on each anniversary of the Effective Date, at
which time the remaining term of the Agreement is one year, the Term of the
Agreement shall automatically be extended for one additional year unless, not
later than sixty (60) days prior to any such anniversary, either party shall
have given written notice to the other that it does not wish to extend the Term
of the Agreement.
3. Compensation.
(a) Base Salary. During the Term of the Agreement, Executive
shall be paid an annual base salary (the "Base Salary") at the rate of $360,000
per year, which amounts shall be paid in accordance with the Company's normal
payroll practices and procedures. Executive's Base Salary may be increased as
determined by the Board of Directors of the Company in its sole discretion.
(b) Bonus. Executive shall be entitled to receive a bonus (the
"Bonus") on each March 31 occurring during the Term of the Agreement in the
amount of $45,000, with the first Bonus payable on March 31, 2000. Any Bonus
payable under this Agreement shall be deemed not to accrue until the last day of
the period with respect to which such Bonus would otherwise be scheduled to be
paid.
(c) Stock Options. Subject to approval by the Board, Executive
shall be granted three options (each an "Option" and collectively, the
"Options") to purchase shares of common stock, par value $0.01 per share
("Common Stock"), of the Company. The first Option shall be for the purchase of
150,000 shares of Common Stock at a per share exercise price equal to $3-21/32,
the second Option shall be for the purchase of 150,000 shares of Common Stock at
a per share exercise price equal to $7.00 per share, and the third Option shall
be for the purchase of 100,000 shares of Common Stock at a per share exercise
price equal to $10.00 per share. Subject to approval by the Board, the Options
are intended to qualify as incentive stock options within the meaning of Section
422 of the Internal Revenue Code of 1986, as amended (the "Code"), to the
fullest extent permitted by such Section of the Code. To the extent any such
Options do not qualify as incentive stock options, such Options shall be deemed
non-qualified stock options. The term of the Options shall be ten years from the
date of grant. The Options shall vest in twelve equal, quarterly installments,
unless the vesting of the Options is accelerated pursuant to Section 5 below.
Except as otherwise provided in Section 5 below, the Options shall not be
exercisable prior to the second anniversary of the Effective Date.
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4. Fringe Benefits.
(a) Welfare and Other Fringe Benefits. Executive shall be
entitled to participate in any fringe and other benefit programs adopted from
time to time by the Company for the benefit of its senior executives.
(b) Business Expenses. Executive shall be entitled to
reimbursement for necessary and reasonable business expenses incurred in the
performance of his duties.
5. Termination of Employment.
(a) Death. If Executive dies while employed by the Company,
his employment shall immediately terminate and the Company's obligation to pay
Executive's Base Salary and Bonus shall cease as of the date of death; provided,
however, that Executive's estate shall be entitled to receive Executive's (i)
accrued Base Salary through the date of termination and (ii) any benefits
payable under applicable welfare benefit plans. Notwithstanding anything to the
contrary contained in Section 3(c) above, Executive's estate shall also be
entitled to exercise Executive's Options to the extent such Options are vested
on the date of Executive's death for a period of one (1) year.
(b) Disability. If as a result of Executive's incapacity due
to physical or mental illness ("Disability"), Executive shall have been absent
from the full-time performance of his duties with the Company for six
consecutive months, the Company may, upon 30 days' notice to Executive,
terminate Executive's employment. Upon termination for Disability, Executive
shall be entitled to receive his full Base Salary during any period of
Disability prior to termination for Disability. In addition, Executive shall be
entitled to receive any benefits payable under applicable welfare benefit plans.
Notwithstanding anything to the contrary contained in Section 3(c) above,
Executive shall also be entitled to exercise his Options to the extent such
Options are vested on the date of Executive's termination for Disability for a
period of one (1) year.
(c) Termination for Cause. The Company shall have the right
to terminate Executive's employment for Cause by giving Executive written notice
of the effective date of such termination. For purposes of this Agreement,
"Cause" shall mean (i) Executive's conviction of or guilty plea to the
commission of an act or acts constituting a felony under the laws of the United
States or any state
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thereof, (ii) action by Executive involving personal dishonesty, theft or fraud
in connection with Executive'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, Non-Competition and Non-Solicitation provisions
contained in Section 9 hereof)). If the Company terminates Executive's
employment for Cause, the Company shall have no further obligation under this
Agreement from and after the date of termination; provided, however, that
Executive shall be entitled to receive (i) his accrued Base Salary through the
date of termination and (ii) any benefits payable under applicable welfare
benefit plans. As provided in Section 3(c) above, to the extent Executive's
employment is terminated pursuant to this Section 5(c) prior to the second
anniversary of the Effective Date, Executive shall not be entitled to exercise
his Options. If Executive's employment is terminated pursuant to this Section
5(c) on or after the second anniversary of the Effective Date, Executive shall
be entitled to exercise his Options to the extent such Options are vested on the
date of Executive's termination pursuant to this Section 5(c) for a period of
one (1) year.
(d) Voluntary Termination by Executive. Except as otherwise
set forth in subsection (f) below, in the event that Executive's employment with
the Company is voluntarily terminated by Executive, the Company shall have no
further obligation under this Agreement from and after the date of termination;
provided, however, that Executive shall be entitled to receive (i) his accrued
Base Salary through the date of termination and (ii) any benefits payable under
applicable welfare benefit plans. Executive agrees that if he voluntarily
terminates employment with the Company, that he shall give the Company at least
sixty (60) days notice of such termination. As provided in Section 3(c) above,
to the extent Executive's employment is terminated pursuant to this Section 5(d)
prior to the second anniversary of the Effective Date, Executive shall not be
entitled to exercise his Options. If Executive's employment is terminated
pursuant to this Section 5(d) on or after the second anniversary of the
Effective Date, Executive shall be entitled to exercise his Options to the
extent such Options are vested on the date of Executive's termination pursuant
to this Section 5(d) for a period of one (1) year.
(e) Termination by Company other than for Death, Disability or
for Cause. If Executive's employment is terminated by the Company for any reason
other than as a result of Executive's death or Disability or for Cause, then
Executive shall be entitled to receive (i) his accrued Base Salary through the
date of termination and a severance payment (A) if such termination occurs prior
to the
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first anniversary of the Effective Date, in an amount equal to two (2) times
Executive's then current Base Salary or (B) if such termination occurs on or
after the first anniversary of the Effective Date, in an amount equal to three
(3) times Executive's then current Base Salary, and (ii) any benefits payable
under applicable welfare benefit plans. Notwithstanding anything to the contrary
contained in Section 3(c) above, Executive shall also be entitled to exercise
his Options to the extent such Options are vested on the date of Executive's
termination pursuant to this Section 5(e) for a period of one (1) year.
(f) Termination Within Two Years Following a Change in
Control. In the event Executive's employment with the Company is terminated
within two (2) years following a Change in Control (as defined below) (i) by the
Company without Cause or (ii) by Executive for Good Reason (as defined below),
then in lieu of any benefits Executive may otherwise be entitled to pursuant to
subsections (d) or (e) above, (i) Executive shall be entitled receive his
accrued Base Salary through the date of termination and a severance payment (A)
if such termination occurs prior to the first anniversary of the Effective Date,
in an amount equal to two (2) times Executive's then current Base Salary or (B)
if such termination occurs on or after the first anniversary of the Effective
Date, in an amount equal to three (3) times Executive's then current Base
Salary, (ii) all of Executive's Options shall immediately vest in full and,
notwithstanding anything to the contrary contained in Section 3(c) above, be
fully exercisable for a period of one (i) year and (iii) Executive shall be
entitled to any benefits payable under applicable welfare benefit plans (the
benefits provided for in subsections (i), (ii) and (iii) above are hereinafter
referred to as the "Severance Benefits", subject to adjustment pursuant to
Section 6 below).
For purposes of this Agreement, a "Change in Control" of the
Company means any transaction or series of transactions in which any of the
following occurs: (i) the acquisition by 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")) (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%) of more of the total
voting power represented by the Company's then outstanding voting securities,
(ii) 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
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securities of the Company outstanding immediately 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
(iii) 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 ▇. ▇. ▇▇, any of his immediate family members,
trusts established for the exclusive benefit of ▇. ▇. ▇▇ or any of his immediate
family members and any person who controls, is controlled by or is under common
control with ▇. ▇. ▇▇, 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 of a person."
For purposes of this Agreement, "Good Reason" means, without
Executive's written consent, (i) a reduction in Executive's titles, positions,
duties and responsibilities as in effect immediately prior to the Change in
Control, (ii) the Company's material breach of the Agreement, (iii) a reduction
in Executive's annual Base Salary or aggregate compensation and benefits
opportunities as in effect immediately prior to the Change in Control, or (iv)
relocation of the Executive's principal offices outside of Southern California.
6. Limitation on Payments. In the event that the Severance Benefits (i)
constitute "parachute payments" within the meaning of Section 280G of the Code,
and (ii) but for this Section 6, would be subject to the excise tax imposed by
Section 4999 of the Code or any similar or successor provision, then the
Severance Benefits shall be reduced to such lesser amount that would result in
no portion of the Severance Benefits being subject to excise tax under Section
4999 of the Code. Any determination required under this Section 6 shall be made
by the Company's independent accountants (the "Accountants"), whose
determination shall be conclusive and binding upon Executive and the Company for
all purposes. For purposes of making the calculations required by this Section
6, the Accountants may make reasonable assumptions and approximations concerning
applicable taxes
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and may rely on reasonable, good faith interpretations concerning the
application of Sections 280G and 4999 of the Code. The Company and Executive
shall furnish to the Accountants such information and documents as the
Accountants may reasonably request in order to make a determination under this
Section 6.
7. Assignment of Intellectual Rights.
(a) Definition of "Inventions". As used herein, the term
"Inventions" shall mean all inventions, discoveries, improvements, trade
secrets, formulas, techniques, data, programs, systems, specifications,
documentation, algorithms, flow charts, logic diagrams, source codes, processes,
and other information, including works-in-progress, whether or not subject to
patent, trademark, copyright, trade secret, or mask work protection, and whether
or not reduced to practice, which are made, created, authored, conceived, or
reduced to practice by Executive, either alone or jointly with others, during
the period of employment with the Company (including, without limitation, all
periods of employment with the Company prior to the Effective Date) which (A)
relate to the actual or anticipated business, activities, research, or
investigations of the Company or (B) result from or is suggested by work
performed by Executive for the Company (whether or not made or conceived during
normal working hours or on the premises of the Company), or (C) which result, to
any extent, from use of the Company's premises or property, unless, in the case
of clause (C) only, (i) Executive has reimbursed the Company in an amount equal
to the value of the use of such premises or property (as determined by the
Company based upon the Company's all in cost, which shall include without
limitation compensation and overhead expense) and (ii) the Company approved the
use of its premises or property prior to the use thereof by Executive.
(b) Work for Hire. Executive expressly acknowledges that all
copyrightable aspects of the Inventions are to be considered "works made for
hire" within the meaning of the Copyright Act of 1976, as amended (the "Act"),
and that the Company is to be the "author" within the meaning of such Act for
all purposes. All such copyrightable works, as well as all copies of such works
in whatever medium fixed or embodied, shall be owned exclusively by the Company
as of its creation, and Executive hereby expressly disclaims any and all
interest in any of such copyrightable works and waives any right of droit morale
or similar rights.
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(c) Assignment. Executive acknowledges and agrees that all
Inventions constitute trade secrets of the Company and shall be the sole
property of the Company or any other entity designated by the Company. In the
event that title to any or all of the Inventions, or any part or element
thereof, may not, by operation of law, vest in the Company, or such Inventions
may be found as a matter of law not to be "works made for hire" within the
meaning of the Act, Executive hereby conveys and irrevocably assigns to the
Company, without further consideration, all his right, title and interest,
throughout the universe and in perpetuity, in all Inventions and all copies of
them, in whatever medium fixed or embodied, and in all written records,
graphics, diagrams, notes, or reports relating thereto in Executive's possession
or under his control, including, with respect to any of the foregoing, all
rights of copyright, patent, trademark, trade secret, mask work, and any and all
other proprietary rights therein, the right to modify and create derivative
works, the right to invoke the benefit of any priority under any international
convention, and all rights to register and renew same. Executive understands
that Inventions do not include, and the obligations set forth above in this
Section 7(c) do not apply to, subject matter that qualifies fully under the
provisions of Section 2870 of the California Labor Code.
(d) Proprietary Notices; No Filings; Waiver of Moral Rights.
Executive acknowledges that all Inventions shall, at the sole option of the
Company, bear the Company's patent, copyright, trademark, trade secret, and mask
work notices.
Executive agrees not to file any patent, copyright, or
trademark applications relating to any Invention, except with prior written
consent of an authorized representative of the Company (other than Executive).
Executive hereby expressly disclaims any and all interest in
any Inventions and waives any right of droit morale or similar rights, such as
rights of integrity or the right to be attributed as the creator of the
Invention.
(e) Further Assurances. Executive agrees to assist the
Company, or any party designated by the Company, promptly on the Company's
request, whether before or after the termination of employment, however such
termination may occur, in perfecting, registering, maintaining, and enforcing,
in any jurisdiction, the Company's rights in the Inventions by performing all
acts and executing all documents and instruments deemed necessary or convenient
by the Company, including, by way of illustration and not limitation:
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(i) Executing assignments, applications, and other
documents and instruments in connection with (A) obtaining patents,
copyrights, trademarks, mask works, or other proprietary protections
for the Inventions and (B) confirming the assignment to the Company of
all right, title, and interest in the Inventions or otherwise
establishing the Company's exclusive ownership rights therein.
(ii) Cooperating in the prosecution of patent,
copyright, trademark and mask work applications, as well as in the
enforcement of the Company's rights in the Inventions, including, but
not limited to, testifying in court or before any patent, copyright,
trademark or mask work registry office or any other administrative
body.
Executive shall be reimbursed for all out-of-pocket costs
incurred in connection with the foregoing, if such assistance is requested by
the Company after the termination of Executive's employment. In addition, to the
extent that, after the termination of employment for whatever reason,
Executive's technical expertise shall be required in connection with the
fulfillment of the aforementioned obligations, the Company shall compensate
Executive at a reasonable rate for the time actually spent by Executive at the
Company's request rendering such assistance.
(f) Power of Attorney. Executive hereby irrevocably appoints
the Company to be his Attorney-In-Fact to execute any document and to tale any
action in his name and on his behalf and to generally use his name for the
purpose of giving to the Company the full benefit of the assignment provisions
set forth above.
(g) Disclosure of Inventions. Executive shall make full and
prompt disclosure to the Company of all Inventions subject to assignment to the
Company, and all information relating thereto in Executive's possession or under
his control as to possible applications and use thereof.
8. No Violation of Third-Party Rights. Executive represents,
warrants, and covenants that he is not a party to any conflicting agreements
with third parties which shall prevent him from fulfilling the terms of
employment and the obligations of this Agreement.
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9. Confidential Information; Non-Competition and Non-Solicitation.
(a) Confidentiality. Executive acknowledges that in his
employment hereunder he shall occupy a position of trust and confidence.
Executive shall not, except as may be required in the normal course of business
to perform his duties hereunder or as required by applicable law, without
limitation in time or until such information shall have become public other than
by Executive's unauthorized disclosure, disclose to others, whether directly or
indirectly, any Confidential Information regarding the Company, its subsidiaries
and affiliates. "Confidential Information" shall mean information about the
Company, its subsidiaries and affiliates, and their respective clients and
customers that is not disclosed by the Company for financial reporting purposes
and that was learned by Executive in the course of his employment by the
Company, its subsidiaries and affiliates, including (without limitation) any
proprietary knowledge, trade secrets, data, formulae, information and client and
customer lists and all papers, resumes, and records (including computer records)
of the documents containing such Confidential Information. Executive
acknowledges that such Confidential Information is specialized, unique in nature
and of great value to the Company, its subsidiaries and affiliates, and that
such information gives the Company a competitive advantage. The Executive agrees
to (i) deliver or return to the Company, at the Company's request at any time or
upon termination or expiration of his employment or as soon thereafter as
possible, (A) all documents, computer tapes and disks, records, lists, data,
drawings, prints, notes and written information (and all copies thereof)
furnished by the Company, its subsidiaries and affiliates, or prepared by the
Executive during the terns of his employment by the Company, its subsidiaries
and affiliates, and (B) all notebooks and other data relating to research or
experiments or other work conducted by Executive in the scope of employment or
any Inventions made, created, authored, conceived, or reduced to practice by
Executive, either alone or jointly with others, and (ii) make full disclosure
relating to any Inventions.
If Executive would like to keep certain property, such as
material relating to professional societies or other non-confidential material,
upon the termination of employment with the Company, he agrees to discuss such
issues with the Company. Where such a request does not put Confidential
Information of the Company at risk, the Company shall customarily grant the
request.
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(b) Non-Competition. During the Term of this Agreement and for
a period of two (2) years thereafter, Executive shall not, directly or
indirectly, without the prior written consent of the Company, provide
consultative services or otherwise provide services to (whether as an employee
or a consultant, with or without pay), own, manage, operate, join, control,
participate in, or be connected with (as a stockholder, partner, or otherwise),
any business, individual, partner, firm, corporation, or other entity that is
then a competitor of the Company, its subsidiaries and affiliates, including
without limitation any entity engaged in the precision engineered semiconductor
packaging business (including, without limitation, the business of collecting
and recycling semiconductor packaging) (each such competitor a "Competitor of
the Company"); provided, however, that the "beneficial ownership" by Executive,
either individually or as a member of a "group," as such terms are used in Rule
13d of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), of not more than five percent (5 %) of
the voting stock of any publicly held corporation shall not alone constitute a
violation of this Agreement. Executive and the Company acknowledge and agree
that the business of the Company is global in nature, and that the terms of the
non-competition agreement set forth herein shall apply on a worldwide basis.
(c) Non-Solicitation of Customers and Suppliers. During the
Term of this Agreement and for a period of two (2) years thereafter, Executive
shall not, directly or indirectly, influence or attempt to influence customers
or suppliers of the Company or any of its subsidiaries or affiliates, to divert
their business to any Competitor of the Company.
(d) Non-Solicitation of Employees. Executive recognizes that
he possesses and shall possess Confidential Information about other employees of
the Company, its subsidiaries and affiliates, relating to their education,
experience, skills, abilities, compensation and benefits, and inter-personal
relationships with customers of the Company, its subsidiaries and affiliates.
Executive recognizes that the information he possesses and shall possess about
these other employees is not generally known, is of substantial value to the
Company, its subsidiaries and affiliates in developing their business and in
securing and retaining customers, and has been and shall be acquired by him
because of his business position with the Company, its subsidiaries and
affiliates. Executive agrees that, during the Term of this Agreement and for a
period of two (2) years thereafter, he shall not, directly or indirectly,
solicit or recruit any employee of the Company, its subsidiaries and affiliates
(i) for the purpose of being employed by him or by any Competitor of the
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Company on whose behalf he is acting as an agent, representative or employee and
that he shall not convey any Confidential Information or trade secrets about
other employees of the Company, its subsidiaries and affiliates to any other
person or (ii) for any other purpose or no purpose.
(e) Injunctive Relief. It is expressly agreed that the Company
shall or would suffer irreparable injury if Executive were to compete with the
Company or any subsidiary or affiliate of the Company in violation of any of the
provisions of this Section 9 and that the Company would by reason of such
competition be entitled to injunctive relief in a court of appropriate
jurisdiction, and Executive further consents and stipulates to the entry of such
injunctive relief in such a court prohibiting Executive from so competing with
the Company or any subsidiary or affiliate of the Company in violation of this
Agreement.
(f) Survival of Provisions. Except as otherwise provided
herein, the obligations contained in this Section 9 shall survive the
termination or expiration of Executive's employment with the Company and shall
be fully enforceable thereafter. If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 9 is excessive in
duration or scope or is unreasonable or unenforceable under the laws of that
state, it is the intention of the parties that such restriction may be modified
or amended by the court to render it enforceable to the maximum extent permitted
by the law of that state.
10. Notices. All notices and other communications under this
Agreement shall be in writing and shall be given by fax or first class mail,
certified or registered with return receipt requested, and shall be deemed to
have been duly given three (3) days after mailing or twenty-four (24) hours
after transmission of a fax to the respective persons named below:
If to Company: Peak International Limited
▇▇▇▇▇ ▇, ▇ & ▇, ▇▇/▇
▇▇▇▇▇ Cable Tower
▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇.▇., ▇▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇▇-▇▇▇▇
Attention: Chairman of the Board
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If to Executive: ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Either party may change such party's address for notices by notice duly given
pursuant hereto.
11. Arbitration. Any dispute, controversy or claim arising under or in
connection with this Agreement, other than any dispute, controversy or claim
arising under Section 9 of this Agreement, or the breach hereof, shall be
settled exclusively by arbitration in accordance with the Rules of the American
Arbitration Association then in effect. Judgment upon the award rendered by the
arbitrator may be entered in any court of competent jurisdiction. Any
arbitration held pursuant to this paragraph in connection with any termination
of Executive's employment shall take place in Southern California at the
earliest possible date.
12. Attorneys' Fees. In the event judicial determination or arbitration
is necessary of any dispute arising as to the parties' rights and obligations
hereunder, each party shall have the right, in addition to any other available
relief, to attorneys' fees based on a determination by the court or the
arbitrator of the extent to which each party has prevailed as to the material
issues raised in determination of the dispute.
13. Indemnification. The Company shall indemnify and hold Executive
harmless to the maximum extent permitted under applicable law during the Term,
and following the Term the Executive shall remain covered under any Director and
Officer liability insurance policies for matters arising during the Term.
14. Withholding. Any payments provided for hereunder shall be paid net
of any applicable withholding required under Federal, state or local law and any
additional withholding to which Executive has agreed.
15. No Mitigation; No Offset. Executive shall not be required in any
way to mitigate the amount of any payment provided for in this Agreement, and
such payments shall not be subject to offset against compensation earned as the
result of employment with another employer.
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16. Assignment; Successors. This Agreement is personal in nature and
neither of the parties hereto shall, without the consent of the other, assign or
transfer this Agreement or any rights or obligations hereunder; provided, that
in the event of the merger, consolidation, transfer or sale of all or
substantially all of the assets of the Company with or to any other individual
or entity, this Agreement shall be binding upon and inure to the benefit of such
successor, and such successor shall discharge and perform all the promises,
covenants, duties and obligations of the Company hereunder.
17. Governing Law. This Agreement and the legal relations thus created
between the parties hereto shall be governed by and construed under and in
accordance with the laws of the State of California.
18. Waiver; Modification. Failure to insist upon strict compliance with
any of the terms, covenants, or conditions hereof shall not be deemed a waiver
of such term, covenant, or condition, nor shall any waiver or relinquishment of,
or failure to insist upon strict compliance with, any right or power hereunder
at any one or more times be deemed a waiver or relinquishment of such right or
power at any other time or times. This Agreement shall not be modified in any
respect except by a writing executed by each party hereto.
19. Severability. In the event that a court of competent jurisdiction
determines that any portion of this Agreement is in violation of any statute or
public policy, only the portions of this Agreement that violate such statute or
public policy shall be stricken. All portions of this Agreement that do not
violate any statute or public policy shall continue in full force and effect.
Further, any court order striking any portion of this Agreement shall modify the
stricken terms as narrowly as possible to give as much effect as possible to the
intentions of the parties under this Agreement.
20. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by its duly authorized officer, and Executive has hereunto signed
this Agreement, as of the date referred to above.
PEAK INTERNATIONAL LIMITED
/s/ ▇▇▇▇▇ Mo
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By: ▇▇▇▇▇ Mo
Its: Chief Financial Officer
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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