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Exhibit
10.25
EMPLOYMENT
AGREEMENT
between
PEAK INTERNATIONAL
LIMITED
and
MARY CHOW
Employment Agreement – Mary
Chow
24 th April 2006
Page 1
THIS AGREEMENT is made this 24th day of
April, 2006 between PEAK INTERNATIONAL LIMITED, a company
incorporated in Bermuda, with its principal office at 38507 Cherry
Street, Newark, CA 94560 (the “Company”); and Mary
Chow, residing at 41 La Salle Road, 1st Floor, Kowloon Tong, Hong
Kong (the “Employee”).
The parties agree as follows:
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1.1. |
The Employee shall be employed by the Company as Vice
President, Supply Chain Management. |
| 2. |
PAYMENT UPON TERMINATION OF EMPLOYMENT |
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2.1. |
The term (“Term”) of this Agreement shall commence
on 22nd May 2006 and this Agreement shall remain in effect its
termination in accordance with its terms. Without any cause, both
parties have the right to terminate this employment conbtract by
giving 3 months’ written notie or payment of 3 months’
basic salary (the lump sum payment in clause 2.7) in lieu
thereof. |
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2.2. |
The Employee shall be paid a monthly salary of US$11,852.00
plus a half month’s bonus and a 13th month bonus of one
month’s pay if employee is employed by the Company on the
date the Company shall elect to pay such half month and 13th month
bonuses in Hong Kong. In the first year, any such bonus shall be
prorated based on a fraction the numerator of which is the number
of days of employment by the Company during the prior 365 days and
the denominator of which is 365. Payment will be made in accordance
with the relevant provisions in the Staff Handbook of Peak Plastics
and Metal Products (International) Limited (“Peak
Plastics”), a subsidiary of the Company. |
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2.3. |
The Company shall issue to the Employee stock options in
respect of 90,000 ordinary shares in the Company under the
Company’s stock option plan. |
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2.4. |
The Employee shall be entitled to fly business class on all air
flights over five hours in length for travel on Company business
during her employment with the Company
(“Employment”). |
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2.5. |
The Employee shall be responsible for and shall pay all income,
sales, real estate, value added and other taxes and duties which
are payable by the Employee, without any form of assistance or
contribution from the Company. |
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2.6. |
The Employee shall be based in Hong Kong and shall be entitled
to participate in all Company benefit plans in effect in,Peak
Plastics during the term of her employment with the Company or any
subsidiary of the Company. |
Employment Agreement – Mary
Chow
24 th April 2006
Page 2
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2.7. |
Subject to clauses 2.9 and 4, the Employee shall be entitled to
a lump-sum payment in an amount equal to the greater of
(a) US$35,556 and (b) 3 months’ base salary at the
rate in effect at the time of termination of the Employment, and
any accrued but unused vacation pay (the “Termination
Payment”) within 15 days of receipt by the Company of the
General Release in the form attached hereto as Appendix I and
signed by the Employee; and all of the Employee’s stock
options in the Company which would otherwise vest in the Employee
within 18 months of the date of termination of the Employment shall
immediately vest in full in the Employee upon receipt of the
General Release by the Company and be fully exercisable for a
period of one year from the date of termination of the
Employment. |
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2.8. |
The Termination Payment shall be the full and final settlement
of any rights, payments or benefits to which the Employee is
entitled under this Agreement and any other agreement or
arrangement pursuant to which she is employed by the Company or any
of its subsidiaries or affiliates other than: |
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2.8.1. |
benefits pursuant to any life, disability, health, or other
insurance policy or benefit plan provided by the Company to which
the Employee was a beneficiary on the date of termination of the
Employment; and |
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2.8.2. |
stock options issued to the Employee pursuant to any stock
option plan of the Company; and |
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2.9. |
The Employee shall not be entitled to the Termination Payment
when the Employment is terminated in any of the following
circumstances (the Employee being entitled, in such circumstances,
only to payment for accrued and unused vacation, any payments to
which she is otherwise entitled pursuant to life, disability,
health or other insurance plan, and to exercise any stock option to
the extent otherwise vested and exercisable under the terms of such
plan and stock option agreements): |
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2.9.1. |
the conviction of the Employee of a felony involving
dishonesty; |
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2.9.2. |
termination of the Employment by the Company for Good Cause.
“Good Cause” shall mean (i) the Employee’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 thereof, (ii) action by the Employee involving personal
dishonesty (including without limitation any failure to declare or
pay income taxes in any jurisdiction in which the Employee shall be
obligated to report income taxes and/or to pay such taxes), theft
or fraud in connection with the Employee’s duties as an
officer of the Company, or (iii) a breach of any one or more
material terms of this Agreement (including but not limited to the
confidentiality and non-solicitation provisions contained
herein.) |
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2.9.3. |
any material breach by the Employee of the terms (other than
material terms) of this Agreement that the Employee has failed to
cure within 10 days of receipt of written notice of such breach
from the Company; |
Employment Agreement – Mary
Chow
24 th April 2006
Page 3
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2.9.4. |
the death of the Employee; |
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2.9.5. |
the inability of the Employee due to ill health or physical or
mental condition to perform her duties and responsibilities in the
ordinary and usual manner required of a person in the
Employee’s position for 90 days in any six -month
period; |
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2.9.6. |
the resignation by the Employee, except if such resignation is
the result of a reduction by the Company of the Employee’s
base salary to less than $160,000 per year. |
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3.1. |
“Change in Control” of the Company means any
transaction or series of transactions in which any of the following
occurs: |
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3.1.1. |
the acquisition by any “person” (as such term is
used in Section 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”) of the
“beneficial ownership” (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the
Company representing fifty percent (50%) or more of the total
voting power represented by the Company’s then outstanding
voting securities, |
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3.1.2. |
the consummation of a merger or consolidation of the Company
with or into any other corporation, other than a merger or
consolidation that would result in the voting securities of the
Company outstanding prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting
securities of the surviving entity) at least fifty percent
(50%) of the total voting power represented by the voting
securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or |
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3.1.3. |
the consummation of a complete liquidation of the Company or of
the sale or disposition by the Company of all or substantially all
of the Company’s assets. |
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3.2. |
In the event the Employment with the Company is terminated in
anticipation of or within two years following a Change of Control
(i) by the Company without Good Cause or (ii) by the
Employee with, in the sole opinion of the Company, a good reason,
then, in addition to the payments in Clause 2.7, all of the
Employee’s stock options shall immediately vest in full in
the Employee and be fully exercisable for a period of one year from
the date of the termination of the Employment. |
Employment Agreement – Mary
Chow
24 th April 2006
Page 4
| 4. |
LIMITATION ON PAYMENTS |
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4.1. |
In the event that the payments to the Employee under this
Agreement (i) constitute “parachute payments”
within the meaning of Section 280G of the Code, and
(ii) but for this, Clause 4, would be subject to the excise
tax imposed by Section 4999 of the Internal Revenue Code or
any similar or successor provision, then the payments shall be
reduced to such lesser amount that would result in no portion of
the payments being subject to excise tax under Section 4999 of
the Internal Revenue Code. Any determination required under this
Clause 4 shall be made by the Company’s independent
accountants (the “Accountants”), whose determination
shall be conclusive and binding upon the Employee and the Company
for all purposes. For purposes of making the calculations required
by this Clause 4, the Accountants may make reasonable assumptions
and approximations concerning applicable taxes and may rely on
reasonable, good faith interpretations concerning the application
of Sections 280G and 4999 of the Code. The Company and the Employee
shall furnish to the Accountants such information and documents as
the Accountants may reasonably request in order to make a
determination under this Clause 4. |
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5.1. |
The Employee understands that by virtue of the Employment, the
Employee has been and will be exposed to confidential information,
including all ideas, information and materials, tangible or
intangible, relating to the business of the Company and its
subsidiaries, their personnel (including their officers, directors,
shareholders, trustees, agents, employees and contractors), their
customers, clients, vendors, suppliers, distributors, consultants,
or others with whom the Company or its subsidiaries does business
(“Confidential Information”). |
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5.2. |
The Employee agrees not to disclose any Confidential
Information during the Employment and for a period of 12 months
after the termination of the Employment and thereafter not to
disclose the same unless the proposed recipient of the Confidential
Information has entered into an undertaking with the Company to
keep the Confidential Information confidential on terms no less
exacting than those set out herein; and provided always that the
Employee shall not be obliged to keep confidential any Confidential
Information required to be disclosed as a matter of law or to the
extent that it becomes generally known to the public other than as
a result of any breach by the Employee of the terms
herein. |
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5.3. |
The Employee covenants and undertakes that after the
termination of the Employment, the Employee: |
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5.3.1. |
shall not for a period of 12 months after the termination of
the Employment use any Confidential Information for any
purpose; |
Employment Agreement – Mary
Chow
24 th April 2006
Page 5
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5.3.2. |
shall not destroy, retain or take with the Employee any
Confidential Information in a tangible form, which includes ideas,
information or materials in written or graphic form, on a computer
disc or other medium, or otherwise stored in or available through
electronic or other form (“Tangible Form”);
and |
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5.3.3. |
shall immediately deliver to the Company any Confidential
Information in a Tangible Form that the Employee may then or
thereafter hold or control, as well as all other property,
equipment, documents or things that the Employee was issued or
otherwise received or obtained during the Employment. |
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6.1. |
The Employee covenants and undertakes that for a period of 12
months following the termination of the Employment for any reason,
the Employee shall not: |
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6.1.1. |
directly or indirectly induce any person who is an employee of
the Company (or any of its subsidiaries) to terminate his or her
employment with the Company (or any of its subsidiaries), whether
or not such termination constitutes a breach of that person’s
employment contract; |
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6.1.2. |
directly or indirectly solicit the custom or business of any
person who, as at the date of termination of the Employment, is
(or, within the preceding period of 12 months, was) a client or
customer of the Company or its subsidiaries, with the intention or
for the purpose of supplying (or procuring the supply of) precision
engineered packing materials; or |
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6.1.3. |
directly or indirectly and whether on her own account or on
account of any future employer, partner or associate, compete with
the Company or otherwise engage in or provide services related to
the precision engineered semiconductor packing business (including,
without limitation, the business of collecting and recycling
semiconductor packing material) in the Hong Kong Special
Administrative Region of the People’s Republic of China,
Singapore, Malaysia or the United States of America. |
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7.1. |
In consideration of, and as an express condition precedent to,
the Company’s obligation to make the Termination Payment, the
Employee shall sign and deliver to the Company a General Release in
the form attached hereto as Appendix 1. |
Employment Agreement – Mary
Chow
24 th April 2006
Page 6
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7.2. |
The Company shall not be obliged to make the Termination
Payment in the event that the General Release is not signed and
delivered to the Company following termination of the Employment.
If the Employee shall fail to sign and to deliver the General
Release to the Company within 15 days of receipt of notice from the
Company requesting it, then, in such event, the Company shall be
released of its duties and obligations under this Agreement and the
Employee shall waive or cause to be waived any claims that the
Employee may have under this Agreement. |
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7.1. |
The rights and obligations under this Agreement shall inure to
the benefit of and be binding upon the parties hereto and their
respective successors and assigns. |
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9.1. |
All notices and other communications provided for hereunder
must be in writing and must be sent by courier to the party’s
address indicated above or to such other address as may be
designated by a party by notice. |
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9.2. |
Notices hereunder shall be effective when
delivered. |
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10.1. |
This Agreement shall supersede any and all prior written or
oral agreements and discussions between the Employee and the
Company regarding the subject matter hereof and this Agreement
contains the entire understanding of the parties in respect of the
subject matter hereof. |
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10.2. |
If any of the restrictions contained in this Agreement shall be
void or unenforceable, then the remainder of this Agreement shall
be enforced to the fullest extent permitted by law. |
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10.3. |
This Agreement is made in and shall be governed by and
construed in accordance with the laws of the state of
California. |
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11.1. |
Any dispute hereunder shall be settled by binding arbitration
in Alameda County, CA in the English language before a single
arbitrator pursuant to the rules of the American Arbitration
Association. Each party shall bear its own legal fees and costs.
The cost of arbitration shall be paid by the Company. |
Employment Agreement – Mary
Chow
24 th April 2006
Page 7
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12.1. |
The Code of Ethics of the Company is attached hereto as
Appendix II. The Employee agrees to abide by the Code of Ethics, as
presently in force and as amended from time to time hereafter,
during his employment with the Company. |
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13.1. |
Clauses 2.1, 2.7, 2.8, 2.9, 3.2, 4, 5, 6, 7, 8, 9, 10, 11 and
13 shall survive the termination of this Agreement. |
IN WITNESS WHEREOF the parties hereto
have duly executed this Agreement the day and year first above
written.
|
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/s/ Mary Chow
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| Mary
Chow |
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/s/ Dean Personne
|
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By Dean Personne,
President/CEO
duly authorized for and on behalf
of
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| PEAK
INTERNATIONAL LIMITED |
Employment Agreement – Mary
Chow
24 th April 2006
Page 8
APPENDIX I
GENERAL RELEASE
[Insert Date]
I, Mary Chow, hereby release Peak
International Limited (the “Company”) of certain duties
and obligations and waive any rights or remedies that I may have
against the Company as provided in this letter. This letter is
delivered pursuant to the Employment Agreement entered into between
the Company and me dated , 2006 (the “Employment
Agreement”).
In consideration of the promises and
mutual covenants contained in the Employment Agreement, and for
good and valuable consideration, the receipt and sufficiency of
which is expressly acknowledged, I hereby:
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release and discharge the Company and its subsidiaries, and
each of their respective past and present officers, directors,
shareholders, managers, employees and agents, and their respective
successors and assigns (collectively the “Released
Parties”), from any and all claims or demands, that I may
have, whether past, present or future, against the Released
Parties, statutory or otherwise, to the fullest extent permissible
by law; and |
| 2. |
waive the obligations, duties and liabilities that the Company
may have, whether past, present or future, statutory or otherwise,
to the fullest extent permissible by law; arising out of or
relating in any way to my employment with or termination of my
employment with the Company. |
This letter shall be governed by,
subject to and construed and enforced pursuant to the terms and
conditions of the Employment Agreement.
Employment Agreement – Mary
Chow
24 th April 2006
Page 9
APPENDIX II
CODE OF ETHICS
Dear Colleague:
Peak International Limited is
committed to serving the best interests of all our varied
constituencies: we strive to increase shareholder value, to provide
customers with quality products, to offer opportunities to all Peak
employees, and to meet our public responsibilities as a member of
the global business community.
Since the preservation of our
reputation is fundamental to the continued well being of our
business, each employee has a personal responsibility to make sure
that his or her conduct is true to that objective. Proper conduct
includes strict compliance with the spirit and the letter of the
laws and regulations that apply to our business. But it means more
than that. It also means that we are honest and ethical in all of
our business practices.
We set forth in the
succeeding pages the Peak International Limited Code of Ethics,
approved by the Board of Directors. The Code often exceeds the
requirements of the law. The Code does not necessarily provide
answers to all questions that might arise; for that we must
ultimately rely on each person’s judgment as to when it is
proper to seek guidance from senior officers of Peak.
Read the Code carefully and
make sure you understand it and the consequences of non-compliance.
I expect all employees to comply with this Code. If you have any
questions about it or its application to events related to the
company, with any member of the board of directors of the company.
Section 2 of the Code lists procedures for making anonymous
reports.
Our ability to meet the
challenges of the future will depend in large measure on our
understanding and support of the Code’s purposes and spirit.
We are committed to providing the most competitive products and
finest service to our customers. Adherence to the policies set
forth in the Code will help us to achieve this goal.
|
| Dean
Personne |
| President/Chief Executive Officer |
Employment Agreement – Mary
Chow
24 th April 2006
Page 10
| 1. |
Responsibility To Our People |
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1.1. |
We are all responsible for upholding the values, principles and
standards we share as members of the Peak International Limited
staff. We must: |
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1.2. |
Commit ourselves to creating an environment that encourages and
fosters open communication. |
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1.3. |
Respect the privacy and dignity of all individuals. |
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1.4. |
Maintain the highest standard of business conduct and ethics
when using electronic resources, such as the computer, phone and
fax. |
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1.5. |
Report family and personal relationships that may result in a
conflict of interest. |
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1.6. |
Dedicate ourselves to maintaining a healthy, safe and secure
workplace. |
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1.7. |
Except as authorized herein on a de minimus basis, not accept
personal gratuities or give any customer or supplier the impression
that we would do so. Business meals or events where the supplier
attends the meal or event may be accepted if the value of the meal
or event does not exceed $100 in any one case or $1000 in the
aggregate in any single calendar year. If a gratuity is offered
that exceeds the guidelines, then the Peak employee will politely
refuse, explaining that it is against company policy to accept the
gratuity. |
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1.8. |
Follow all company policies governing day-to-day performance of
our jobs, including the standards set forth in this Code of
Ethics. |
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1.9. |
Not engage in improper or illegal behavior even if directed to
do so by someone in higher authority. No one, regardless of
position, has the authority to direct any of us to commit a
wrongful act. |
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2.1. |
The company is committed to providing an environment that
encourages and fosters open communication. This means that we
encourage and provide the means for all company employees to
express their ideas, opinions, attitudes and concerns without fear
of reprisal. |
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2.2. |
Any employee or other person may report, without fear of
reprisal, any actual or suspected wrong-doing of any nature
whatsoever related to the company or its business or customers,
including matters related to accounting issues, internal controls,
or auditing issues, or in the discretion of the reporting employee,
to Dean Personne, the company’s President and CEO, or to
Katie Fung, Vice President and Chief Financial Officer. In
addition, any employee may report any matter to the Chairman of the
Audit Committee of the Board of Directors, Christine Russell.
Contact information is set forth below. |
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2.2.1. |
Any employee or other person may send a report anonymously if
he or she so chooses. Each report will be reviewed and acted upon,
whether or not the writer identifies himself or herself. While any
method selected by the individual may be used, we encourage the
following methods: |
Employment Agreement – Mary
Chow
24 th April 2006
Page 11
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2.2.1.1. |
Mail. Send the report by mail to any one or more of the
following people addressed to the individuals at PO Box 276,
Newark, CA. 94538 |
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2.2.1.1.1. |
Christine Russell, Chairman of the Audit Committee, Peak
International Limited (email:russell@ceva-dsp.com) |
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2.2.1.1.2. |
Dean Personne, President and Chief Executive Officer, Peak
International Limited (email: cal_reed@peakf.com) |
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2.2.1.1.3. |
Katie Fung, Vice President, Chief Financial Officer (email:
Katie_fung@peakf.com) |
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2.2.1.2. |
Fax. Send the report by FAX to any one or more of the foregoing
people addressed to the individuals at
(510) 449-0102. |
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2.2.1.3. |
Email. Send the report by email to any two of the above listed
people at their indicated email address. It is more difficult to
send a report anonymously by email since the sender leaves an
electronic trail. Thus, this method should not be used if the
sender wishes to remain anonymous. |
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3.1. |
We respect the privacy and dignity of all individuals. We limit
access to personal information to authorized personnel who need it
for business or legal purposes, and we will comply with all
applicable laws regarding disclosure of personal
information. |
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3.2. |
The company does not routinely monitor personal communications
and computer use of its employees, nor search their work spaces.
You should not, however, expect that these communications and work
spaces will be private and the company may elect to monitor such
communications and/or |
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