Exhibit 10.16
EMPLOYMENT AGREEMENT
This employment agreement (this "Agreement"), dated as of February 14,
1998, is between NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED (the "Company")
and XXXXXX XXXXXXX, an individual ("Employee").
BACKGROUND INFORMATION
A. The Company desires to employ Employee as its Vice Chairman
B. Employee is willing to serve in such capacities and undertake the
responsibilities of such positions on the terms and conditions
contained herein.
Statement of Agreement
Section 1. Employment and Term. Subject to the terms and conditions
of this Agreement, the Company shall employ Employee as its Vice Chairman during
the Term (as hereinafter defined). Employee's employment by the Company pursuant
to this Agreement shall commence on the date hereof and, subject to the terms
and conditions of this Agreement, shall continue until February 14, 2008, (the
"Term"). During the Term, Employee shall be expected to perform such duties and
carry out such responsibilities as may be reasonably assigned to him from time
to time by the Board of Directors of NSM upon the recommendation of NSM
Management Company (the "Management Co.,").
Section 2. Compensation and Benefits. Except as otherwise provided
herein, as compensation for his services to the Company, Employee shall receive
during the Term:
(a) A base salary payable in accordance with the Company's
usual pay practices (and in any event no less frequently than monthly) at the
rate of 7,650,000 Baht per annum, with an increase of 5% per annum (calculated
on cumulative compounded basis) during the Term, plus expense reimbursement of
up to 3,150,000 Baht per annum, during the Term;
(b) At the discretion of the Management Co., an annual bonus
based on the Company's return on equity, profitability, operating efficiency and
adherence to capital expenditure budgets and construction timetables, payable in
such manner and in such amount as determined by the Management Co.;
(c) Rights to participate in any insurance, employee
retirement, benefit or welfare plan that is generally available to senior
officers of the Company, with participation in and benefits under any such plan
shall be on the terms and subject to the conditions specified in the governing
documents of the particular plan;
(d) First class coverage health, accident and life insurance
for Employee, his wife and children until the age of 21;
(e) Four weeks paid vacation; and
(f) Such other fringe and employee benefits as may be provided
from time to time by the Management Co.
Section 3. Termination.
(a) Employee's employment with the Company may be terminated
at any time with or without Cause (as hereinafter defined) by the Company upon
notice. If Employee's employment is terminated by the Management Co. for Cause,
then his compensation shall terminate on the effective date of termination.
"Cause" shall mean (i) a felony conviction of Employee involving dishonesty or
moral turpitude, or (ii) willful misconduct, fraud, embezzlement, or flagrant
dereliction of duty in the performance or nonperformance of his duties
hereunder; provided, however, that the Management Co. shall provide Employee
with written notice of any of events enumerated in the preceding clause 3
(a)(ii) and shall give Employee thirty (30) days from such notice to effect a
cure of any such event when and if such a cure is reasonably possible in the
company's sole discretion. If the Management Co., upon the approval of the Board
of Directors of NSM, terminates Employee's employment without Cause, then the
Company shall continue to pay Employee's base salary as severance pay for the
remainder of the Term. In addition, the Company shall pay at the customary time
for any bonus payment a bonus equal to the average of the annual bonus payments
previously paid to the Employee during the Term pursuant to subsection 2(b),
prorated on a per diem basis for partial fiscal years. Such continuation of
Employee's salary and bonus following termination without Cause, if any, shall
not be interrupted or cease as a result of his death or disability. If Employee
terminates his employment other than for the reason provided in subsection 3(b)
(which termination must be upon at least 30 days' notice) or if Employee dies,
then his right to any all compensation hereunder shall terminate on the day he
terminates such employment or dies, as the case may be.
(b) If the Management Co., the Company, any Affiliate of the
Management Co. or the Company or any third party that purchases a controlling
interest in the Management Co. or any Affiliate of the Company (whether by
merger, consolidation, sale of all or substantially all of its assets, or sale
of a majority of the capital stock of the Company or the capital stock of any
Affiliate), materially changes Employee's duties, responsibilities or authority
with the Company without his consent other than for Cause, Employee shall have
the right to terminate his employment with the Company upon notice, in which
event the Company shall continue to pay Employee's base salary as severance pay
for the remainder of the Term; in addition, the Company shall pay a one-time
severance bonus payment equal to the average of the annual bonus payments
previously paid to the Employee during the Term pursuant to subsection 2(b),
prorated on a per diem basis for partial fiscal years. Such continuation of
salary and payment of such one-time severance bonus, if any, shall not be
interrupted or cease as a result of Employee's death or disability.
(c) The continued payment of salary and bonus or salary and
the one-time severance bonus pursuant, as the case may be, to subsections 3(a)
and 3(b) shall be the exclusive payment due Employee upon the termination of his
employment with the Company pursuant to this Agreement. All other compensation,
benefits and perquisites shall cease as of the effective date of such
termination and no other payments or benefits shall be due hereunder.
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Section 4. Confidential Information. Employee shall maintain in
strict confidence and shall not, directly or indirectly, divulge, transmit,
publish, or release or otherwise use or cause to be used in any manner to
Compete with or that is contrary to the interests of the Company, any
confidential or proprietary information relating to the Company's systems,
operations, formulas, processes, computer programs and databases, records
development data and reports, quality control specifications, cost analysis,
flow charts, know-how, customer lists, supplier lists, marketing data, personnel
data, or any information relating to sales, financial structure or pricing, and
other information of like nature. Employee acknowledges that all information
regarding the Company compiled or obtained by, or furnished to, Employee in
connection with his employment or association with the Company is confidential
and proprietary information and the Company's exclusive property. Upon demand by
the Company, Employee shall surrender to the Company all original and facsimile
records, documents and data in his possession pertaining to the Company. The
foregoing covenant of confidentiality has no temporal, geographical or
territorial limitation.
Notwithstanding the foregoing, this provision does not apply to the
extent, and only to the extent, such information: (a) is clearly obtainable in
the public domain, (b) becomes obtainable in the public domain through no fault
of Employee's, (c) was not acquired by Employee in connection with his company
or affiliation with the Company, or (d) is required to be disclosed by rule of
law or by order of a court or governmental body or agency.
Section 5. Independent Significance The restrictive covenants
contained herein shall be construed as independent of the other provisions of
this Agreement, and the existence of any claim or cause of action of Employee,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the company of any of the restrictive covenants
contained herein.
Section 6. Injunctive Relief and Specific Performance If Employee
breaches any of his obligations contained in Section 4 of this Agreement the
injuries that shall be suffered by the Company shall be irreparable, and the
Company shall not have an adequate remedy at law. Employee therefore agrees
that, in the event of such a breach, the Company shall be entitled to injunctive
relief or specific performance in addition to all other rights that the Company
may have at law, in equity, or otherwise.
Section 7. Severability All provisions of this Agreement are
intended to be severable. In the event any provision or restriction contained
herein is held to be invalid or unenforceable in any respect, in whole or in
part, such finding shall in no way affect the validity or enforceability of any
other provisions of this Agreement. The parties hereto further agree that any
such invalid or unenforceable provision shall be deemed modified so that it
shall be enforced to the greatest extent permissible under law.
Section 8. Nonwaiver. No failure or delay by either party in
exercising such party's rights hereunder shall operate as a waiver thereof and
no single or partial exercise thereof shall preclude any further exercise of any
right, power, or privilege by such party.
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Section 9. Notices. All notices and other communications hereunder
shall be in writing an shall be either personally delivered or mailed by
certified mail, return receipt requested, addressed as follows;
if to the Company: Nakornthai Strip Mill Public Company
Limited
Chonburi Industiral Estate
000 Xxx 0
Xxxxxxx 000
Xxxxx, Xxxxxxxx, Xxxxxxxx 00000
Attention: Board of Directors
if to Employee: Xxxxxx Xxxxxxx
Nakornthai Strip Mill Public Company
Limited
0 Xxxxxxxxxxxx Xxxx
00xx Xxxxx, XX Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
or such other address as either party notifies the other by certified mail or
personal delivery. Notice shall be deemed given when personally delivered.
Section 10. Expenses. In any legal action brought to enforce the
provisions of this Agreement, the non-prevailing party will, upon demand, pay to
the prevailing party the amount of any and all reasonable expenses, including
the reasonable fees and expenses of such prevailing party's counsel, which any
such prevailing party may incur in connection with (a) the exercise or
enforcement of any of its rights hereunder, or (b) the failure by the
non-prevailing party to perform or observe any of the provisions hereof.
Section 11. Miscellaneous
(a) This Agreement is for personal services to be provided by
Employee and shall not be assigned or transferred by Employee to, and Employee's
obligations hereunder shall not be performed by, any other party.
(b) Employee represents and warrants that he is not under any
obligation, contractual or otherwise, to any person, firm, corporation or entity
which would prevent his entering into this Agreement or performing his
obligations hereunder.
(c) This Agreement contains the entire agreement between the
parties hereto regarding the subject matter hereof and supersedes all prior and
contemporaneous agreements, understandings, negotiations and discussions,
whether oral or written.
(d) Heading shall not be considered part of this Agreement.
They are included solely for convenience and are not intended to be full or
accurate descriptions of the contents hereof.
(e) This Agreement shall be governed by, and construed in
accordance with, the laws of Thailand
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(f) This Agreement shall inure to benefit of Employee and the
Company and their respective representatives, successors and permitted assigns
and shall bind the Company and Employee and their respective representatives,
successors and permitted assigns. The Company shall have the right, without
Employee's consent, to assign or transfer this Contract or the benefits or
obligations hereof or any part hereof to the Company's lenders.
(g) The Company represents and warrants to Employee as
follows:
(i) The Company is a corporation duly organized, validly
existing and in good standing under the laws of The Kingdom of Thailand and has
all requisite corporate power and authority to enter into, execute, and deliver
this Agreement, fulfill its obligations hereunder and consummate the
transactions contemplated hereby; and
(ii) The execution and delivery of, performance of
obligations under, and consummation of the transactions contemplated by this
Agreement have been duly authorized and approved by requisite corporate action
by or in respect of the Company, and this Agreement constitutes a legally valid
and binding obligation of the Company enforceable against the Company by
Employee in accordance with its terms.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
/s/ Xxxxxx Xxxxxxx
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XXXXXX XXXXXXX
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
By: /s/ Sawasdi Horrungruang
----------------------------
Its: Chairman
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