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Exhibit 10.8
EXECUTION COPY
EMPLOYMENT AND NON-COMPETITION AGREEMENT
This
EMPLOYMENT AND NON-COMPETITION AGREEMENT (this "Agreement"), dated
as
of December 6, 2005 is between CSAV ASIA PACIFIC LIMITED, a Hong
Kong
corporation (the "Employer"), and STUART JOHN BULCRAIG (the
"Employee").
WHEREAS, the Employer wishes to employ the Employee as an
executive
officer, and the Employee wishes to be employed by the Employer as
an executive
officer, on the terms set forth below.
NOW,
THEREFORE, it is hereby agreed as follows:
SECTION 1. EMPLOYMENT. The Employer hereby employs the Employee,
and the
Employee hereby accepts employment, upon the terms and subject to
the conditions
hereinafter set forth.
SECTION 2. DUTIES. The Employee shall be employed as the Managing
Director
of the Employer. In such capacity, the Employee shall have the
responsibilities
and duties as are assigned by the Board of Directors (the "Board")
of CSAV
Holding Corp., a Delaware corporation ("Holdings"), and which are
consistent
with the Employee's position. At all times during the performance
of this
Agreement, the Employee will adhere to the rules and regulations
(the
"Policies") that have been or may hereafter be established by the
Board for the
conduct of its employees or the employees of its subsidiaries or
for the
position or positions held by the Employee. In the event of any
inconsistency or
conflict between the terms and conditions of the Policies and this
Agreement,
then the terms and conditions of this Agreement shall prevail. The
Employee
agrees to devote his full business time and best efforts to the
performance of
his duties to the Employer.
SECTION 3. TERM. The initial term of employment of the Employee
hereunder
shall commence on December 6, 2005 (the "Commencement Date") and
shall continue
until the second anniversary of the Commencement Date (the "Initial
Term"),
unless earlier terminated pursuant to Section 6, and shall be
renewed
automatically for additional one (1) year terms thereafter unless
terminated by
either party by written notice to the other given at least thirty
(30) days
prior to the expiration of the then current term.
SECTION 4. COMPENSATION AND BENEFITS. Until the termination of
the
Employee's employment hereunder, in consideration for the services
of the
Employee hereunder, the Employer shall compensate the Employee as
follows:
(a) BASE SALARY. The Employer shall pay the Employee, in
accordance
with the Employer's then current payroll practices (including the
timing and
manner of payment), a base salary (the "Base Salary"). The Base
Salary will be
paid at an annual rate of US$150,000. The Base Salary may be
increased from time
to time at the sole discretion of the Board.
(b) INCENTIVE BONUS. At the end of each fiscal year of the
Employer
during the Term, beginning with the fiscal year ending December 31,
2006, the
Employee shall be eligible to receive from the Employer an annual
incentive
bonus (the "Incentive Bonus"). The Incentive Bonus criteria for
each fiscal year
(i) will be determined by the Board after discussion
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with the Employee (and the Employer will advise the Employee of
such
determination) prior to the end of the first fiscal quarter of such
fiscal year,
and (ii) may be based solely on the achievement of individual
performance
criteria, solely on the achievement by the Employer of elements of
its business
plan or on a combination of these criteria or such other criteria
that the Board
may reasonably determine (including achievement of certain
performance criteria
for the business unit for which the Employee is responsible/works).
It is
currently contemplated that the Incentive Bonus range for all
fiscal years will
be between 20%-50% of the Base Salary depending upon the
satisfaction of the
Incentive Bonus criteria to be set in accordance with the
immediately preceding
sentence. The Incentive Bonus (if any) payable in connection with
any fiscal
year shall be paid on or about May 31 of the following fiscal year.
If the
Employee resigns or is terminated for Cause as defined below, no
Incentive Bonus
shall be payable for the fiscal in which such resignation or
termination occurs.
The amount of any Incentive Bonus payable for any fiscal year shall
be paid in
cash; provided, however, that upon the determination of the Board,
up to 50% of
any Incentive Bonus for any fiscal year may be paid in the form of
shares of
restricted stock of Holdings (the "Bonus Shares") having a value,
determined in
good faith by the Board, equal to such percentage of the total
Incentive Bonus
payable for such fiscal year. The Employee agrees to execute and
deliver to the
Employer all such documents, instruments and agreements relating to
the Bonus
Shares as the Employer may request.
(c) VACATION. The Employee shall be entitled to four (4) weeks
vacation each calendar year plus the 17 General Holidays in Hong
Kong each
calendar year. Any vacation shall be taken at the reasonable and
mutual
convenience of the Employer and the Employee. Up to one (1) week of
accrued
vacation that has not been used as of the end of any calendar year
may be
carried forward for use in the next calendar year.
(d) INSURANCE; OTHER BENEFITS. The Employee shall be entitled
to
participate in the Employer's Mandatory Provident Fund scheme
subject to its
terms and conditions from time to time in place and receive any
health,
accident, disability and life insurance and family leave benefits
provided by
the Employer under group health, accident, disability, and life
insurance and
family leave plans maintained by the Employer for its full-time,
salaried
employees as such employment benefits may be modified from time to
time by the
Board for all full-time, salaried employees, provided that (without
duplication
of any of the foregoing benefits) the Company shall:
(i) reimburse the Employee for 100% of cost of the premiums
(not
to
exceed (x) US$7,000 per annum or (y) the average per employee
premium
payment contribution that the Employer then currently provides to
its
senior executives) associated with the Employee's health insurance
coverage
provided by a New Zealand based health insurance provider
coverage;
(ii) provide the Employee with a vehicle allowance for a
vehicle
to
be used primarily in and around the city of Shenzen, the
People's
Republic of China, of US$700 per month (plus the costs of fuel and
toll
expenses incurred in connection with the performance of the
Employee's
duties hereunder) during the term of this Agreement; and
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(iii) provide the Employee with a yearly travel allowance to be
used
by the Employee exclusively for travel between the city of
Shenzen,
the
People's Republic of China and New Zealand, provided further that
an
estimate of such amount shall be submitted to the Company for its
approval
and
shall not exceed US$30,000 in the aggregate in any year during the
term
of
this Agreement; and
(iv) reimburse the Employee for the annual premiums paid by the
Employee for travel insurance coverage during the Term of this
Agreement,
provided further that an estimate of the amount of such premiums
shall be
submitted to the Company for its approval and shall not exceed
US$1,000 in
the
aggregate in any year during the term of this Agreement.
(e) WITHHOLDING. All amounts payable by the Employer to the
Employee
hereunder (including, but not limited to, the Base Salary and the
Incentive
Bonus) shall be reduced prior to the delivery of such payment to
the Employee by
an amount sufficient to satisfy required by any applicable
national, local or
other withholding tax requirements.
SECTION 5. EXPENSES. The Employer shall reimburse the Employee for
all
reasonable expenses of types authorized by the Employer and
incurred by the
Employee in the performance of his duties hereunder. The Employee
shall comply
with such budget limitations and approval and reporting
requirements with
respect to expenses as the Employer may establish from time to time
for Company
executives in the Asia-Pacific region.
SECTION 6. TERMINATION. The Employee's employment hereunder shall
commence
on the Commencement Date and continue until the expiration of the
Initial Term,
and any extension of such term pursuant to Section 3 above, except
that the
employment of the Employee hereunder shall earlier terminate:
(a) DEATH. Upon the death of the Employee during the term of
his
employment hereunder.
(b) DISABILITY. At the option of the Employer, in the event of
the
Employee's Disability (as defined below), upon thirty (30) days'
written notice
from the Employer. For purposes hereof, the Employee shall be
deemed to have a
"Disability" if the Employee is unable (as reasonably determined by
the Board),
on account of a physical or mental illness, injury or disease or
combination
thereof, to perform his duties and obligations under this Agreement
for a period
of more than 90 consecutive days or for a total of 120 days (in
either case
excluding vacation days) within any 12 month period.
(c) FOR CAUSE. For "Cause" effective immediately upon written
notice
by the Employer to the Employee. For purposes of this Agreement, a
termination
shall be for Cause if the Board shall determine that any one or
more of the
following has occurred:
(i) the Employee shall have committed an act of fraud,
embezzlement, misappropriation, gross negligence or breach of
fiduciary
duty
against the Employer, any parent company of the Employer
(including
Holdings) or any of their respective
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subsidiaries (collectively, the "Companies"), including, but not
limited
to,
the offer, payment, solicitation or acceptance of any unlawful
bribe or
kickback with respect to the business of any of the Companies;
or
(ii) the Employee shall have been convicted by a court of
competent jurisdiction of, or pleaded guilty or nolo contendere to,
any
felony or the equivalent of a felony in such jurisdiction; or
(iii) the Employee shall have committed a material breach of
any
of
the covenants, terms and provisions of Sections 7,8 or 9 hereof;
or
(iv) the Employee shall have breached in any material respects
any
one or more of the provisions of this Agreement (excluding Sections
7,
8
and 9 hereof), including, without limitation, any failure to comply
with
the
Policies, or any one or more of the provisions of the
Stockholder
Agreement, dated as of August 29, 2003 (as amended and in effect
from time
to
time, the "Stockholder Agreement"), among Holdings and its
stockholders,
or
the trustees (the "Trustees") of the Happy Valley Trust created by
Deed
dated August 17, 2004, shall have breached in any material respect
any one
or
more of the provisions of the Stockholder Agreement and, in each
case,
such
breach shall have continued for a period of fifteen (15) days
after
written notice to the Employee specifying such breach in reasonable
detail;
or
(v) the Employee shall have refused, after explicit written
notice, to obey any lawful resolution of, or direction by, the
Board which
is
consistent with his duties hereunder; or
(vi) the Employee shall be chronically absent from work
(excluding vacation, illnesses or leaves of absence approved by the
Board)
and
such absence shall continue following written notice to the
Employee;
or
(vii) any other ground justifying summary dismissal under
Section
9 of
the Employment Ordinance, Cap. 57 of the Laws of Hong Kong.
(d) RESIGNATION OR TERMINATION WITHOUT CAUSE. At any time, upon
one
month's written notice by either the Employer or the Employee to
the other party
hereto or payment of one month's wages in lieu.
(e) RIGHTS AND REMEDIES ON TERMINATION.
(i) If the Employee's employment hereunder is terminated
pursuant
to
Section 6(a), Section 6(b) or Section 6(c), by the Employee
pursuant to
Section 6(d) or pursuant to Section 3 in connection with the
expiration of
the
Initial Term or any subsequent term hereunder then the Employee (or
his
estate, as applicable) shall be entitled to receive his Base Salary
through
the
date of termination or expiration, the amount of any unpaid
Incentive
Bonus earned for prior fiscal years and any other sums to which
the
Employee is entitled pursuant to applicable law.
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(ii) If the Employee's employment hereunder is terminated by
the
Employer pursuant to Section 6(d), then the Employee shall be
entitled to
continue to receive payment, in accordance with the Employer's then
current
payroll practices, of the Employee's Base Salary in effect on
the
Termination Date (as defined below), for a five (5) month period
following
such
termination (or for a one (1) year period following the
Termination
Date
if the Employer elects to so extend the Severance Period as
contemplated by the last sentence of the definition of the
Designated
Period set forth below) (the "Severance Period"); provided,
however, that
(A)
the Employee's right to receive the foregoing payment is
expressly
conditioned upon receipt by the Employer within 30 days following
the
Termination Date of a written release executed by the Employee, in
form and
substance satisfactory to the Employer, of any and all claims or
causes of
action of any nature relating directly or indirectly to such
Employee's
employment or termination of employment by the Employer; (B) in the
event
that
the Employee breaches any of the covenants, terms or provisions
of
Sections 7, 8 or 9 hereof, without limiting any other rights that
the
Employer may have, the Employer's obligation to make payments under
this
Section 6(e)(ii) shall immediately terminate; and (C) the severance
payment
shall be reduced by any sums paid to the Employee pursuant to
applicable
law
as described in Section 6(e)(iii) below. As used herein, the
term
"Termination Date" means the date of the termination of the
Employee's
employment with the Employer for any reason, including, without
limitation,
for resignation, death
or Disability and whether or not for Cause.
(iii) Except as otherwise set forth in this Section 6(e), the
Employee shall not be entitled to any severance, bonus or other
compensation after termination other than payment of any
expense
reimbursements under Section 5 hereof for expenses incurred in
the
performance of his duties prior to termination or benefits or
compensation
to
which the Employee is entitled pursuant to applicable law.
SECTION 7. INVENTIONS; ASSIGNMENT. The Employee hereby irrevocably
and
unconditionally waives in favour of the Employer all rights granted
by the
Copyright Ordinance of Hong Kong in connection with his authorship
of any
copyright works in the course of his employment with the Employer,
including
without limitation any moral rights and any right to claim an
additional payment
with respect to use or exploitation of those works. The Employee
agrees that (i)
his wages are full compensation for his services and all present
and future uses
of copyright works made by him in the course of his employment; and
(ii) he will
not make any claims against the Companies with respect to those
copyright works.
If the Employee makes any Inventions (as defined below) that do not
belong to
the Employer under the Patents Ordinance of Hong Kong, he agrees
that he will
forthwith exclusively license or assign (as determined by the
Employer) to the
Employer his rights in relation to such Inventions and will deliver
to the
Employer all documents and other materials relating to them. The
Employer will
pay to the Employee such compensation for the license or assignment
as the
Employer will determine in its absolute discretion, subject to the
Patents
Ordinance of Hong Kong. All rights to discoveries, inventions,
improvements and
innovations (including all data and records pertaining thereto)
related to the
business of any of the Companies, whether or not patentable,
copyrightable,
registrable as a trademark, or reduced to writing, that the
Employee may
discover, invent or
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originate during the term of his employment hereunder, either alone
or with
others and whether or not during working hours or by the use of the
facilities
of any of the Companies ("Inventions"), shall be the exclusive
property of the
Employer. The Employee shall promptly disclose all Inventions to
the Employer,
shall execute at the request of the Employer any assignments or
other documents
the Employer may deem necessary to protect or perfect the rights of
the
Companies therein, and shall assist the Companies, at the
Companies' expense, in
obtaining, defending and enforcing the Companies' rights therein.
The Employee
hereby appoints the Employer and each of the other Companies,
individually, as
his attorney-in-fact to execute on his behalf any assignments or
other documents
deemed necessary by the Employer or any of the other Companies to
protect or
perfect their rights to any Inventions.
SECTION 8. CONFIDENTIAL INFORMATION. The Employee recognizes
and
acknowledges that certain assets of the Companies, including,
without
limitation, information regarding customers, pricing policies,
methods of
operation, proprietary production processes, proprietary computer
programs,
sales, products, profits, costs, markets, key personnel, formulae,
product
applications, technical processes, and trade secrets (hereinafter
called
"Confidential Information") are valuable, special, and unique
assets of the
Companies and their affiliates. The Employee shall not, during or
after his term
of employment, disclose any or any part of the Confidential
Information to any
person, f
