EMPLOYMENT AGREEMENT
THIS
AGREEMENT, made and entered into this 22nd day of February 2006 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 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 agree as follows:
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
postions.
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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 2, 2006 and ending December
31, 2007 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 ($130,000) 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 expense 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, 2007 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)
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 employee of the Company,
or
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(ii)
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
assembles, such as but not limited to conventional and moulded cables
and
wire harnesses and printed circuit-boards, electro-mechanical assembles
and products, plastic insert and injection moulded products, and
other
related services or products (collectively “Products”) of the Company in
competition with the 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)
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 a
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 of such
benefit,
and
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(C)
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for
the purposes 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.
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Restriction
of 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 xxxxx
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, judgments, 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
for 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 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 willful 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.
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Binding
on Successors.
The rights and obligations of the parties shall inure to the benefit
and
shall be binding upon their successors and
assigns.
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11.
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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.
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12.
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Survival
of Provisions.
The provisions of Section 6 and 8 shall survive termination of employment
of this Agreement. If any provision of this Agreement is declared
invalid
by any court of other competent authority the remaining provision
of this
Agreement shall not be affected
thereby.
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13.
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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.
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14.
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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.
ATTEST: SIMCLAR,
INC.
/s/
Xxxxxxxx Xxxxxxx
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/s/
Xxxxxx X. Xxxxxxx
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Xxxxxxxx
Xxxxxxx, 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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/s/
Xxxxxx X. Xxxxxxx
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/s/
Xxxxx X. Xxxxxx
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Xxxxx
X.
Xxxxxx
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