EMPLOYMENT AGREEMENT
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Employment Agreement dated as of April 1, 1997, between MVR Products
Pte Limited, a Singapore corporation, and Unijoh Sdn, Bhd, a Malaysian
corporation (collectively, the "Companies"), and Xxxxxxx Xxxx, also known as
Quek Kok Hoe, an individual residing in Singapore (the "Employee"), each of the
foregoing having an address at 00, Xxxxxxx Xxxx, Xxxxxxxxx 000000.
W I T N E S S E T H :
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WHEREAS, the Companies desire that Employee be employed by them and
render services to them, and Employee is willing to be so employed and to render
such services to the Companies, all upon the terms and subject to the conditions
contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Employment. Subject to and upon the terms and conditions
contained in this Agreement, the Companies hereby agree to employ Employee and
Employee agrees to enter the employ of the Companies, for the period set forth
in Paragraph 2 hereof, to render the services to the Companies, their affiliates
and subsidiaries described in Paragraph 3 hereof.
2. Term. Employee's term of employment under this Agreement shall
commence on the date hereof (the "Commencement Date") and shall continue for a
period through and including the second anniversary of the date hereof (the
"Employment Term") unless extended in writing by both parties or earlier
terminated pursuant to the terms and conditions set forth herein.
3. Duties. (a) Employee shall be employed as President of MVR and
Unijoh and responsible for management of the operations thereof.
(b) Employee agrees to abide by all by-laws, policies and other
general employment conditions of each of the Companies' parent, Motorcar Parts &
Accessories, Inc. ("MPA") and the Companies.
4. Exclusive Services and Best Efforts. Employee shall devote his
entire working time, attention, best efforts and ability during regular business
hours exclusively to the service of the Companies, their affiliates and
subsidiaries during the term of this Agreement.
5. Compensation. As compensation for his services, covenants and
agreements hereunder, the Companies collectively shall pay Employee an aggregate
salary ("Salary") of Xxx Xxxxxxx xxx Xxx Xxxxxxxx Xxxxxx Xxxxxx Dollars
(US$110,000) per year.
6. Business Expenses. Employee shall be reimbursed for, and entitled
to advances (subject to repayment to the Companies if not actually incurred by
Employee) with respect to, only those business expenses incurred by him which
are authorized by MPA and the Companies and for which Employee has submitted
receipts.
7. Employee Benefits. During the Employment Term, Employee shall be
entitled to such insurance, disability, health, medical and automobile benefits
from the Companies as he was entitled to from the Companies during the preceding
fiscal year; provided that Employee shall be required to comply with the
conditions attendant to coverage by such plans and shall comply with and be
entitled to benefits only in accordance with the terms and conditions of such
plans. Employee shall be entitled to such paid vacation each year during the
Employment Term as he was entitled to from the Companies during the preceding
fiscal year and of such duration and at such times as does not, in the opinion
of MPA and the Companies, interfere with Employee's performance of his duties
hereunder. The Companies may withhold from any benefits payable to Employee all
taxes and amounts as shall be permitted or required pursuant to law, rule or
regulation. All of the benefits to which Employee may be entitled may be changed
from time to time or withdrawn at any time in the discretion of MPA or the
Companies.
8. Death and Disability. (a) The Employment Term shall terminate on
the date of Employee's death, in which event Employee's Salary, reimbursable
expenses and benefits owing to Employee through the date of Employee's death
shall be paid to his estate. Other than a death benefit equal to one-fourth of
Employee's Salary on the date of Employee's death, which shall be paid to his
estate within 120 days following such date, Employee's estate will not be
entitled to any other compensation upon termination of this Agreement pursuant
to this Paragraph 8(a).
(b) If, during the Employment Term, in the opinion of a duly
licensed physician selected by MPA and the Companies, Employee, because of
physical or mental illness or incapacity, shall become substantially unable to
perform the duties and services required of him under this Agreement for a
period of 60 consecutive days or 120 days in the aggregate during any six-month
period MPA and the Companies may, upon at least twenty (20) days' prior written
notice given at any time after the expiration of such 60 or 120 day period, as
the case may be, to Employee of their intention to do so, terminate this
Agreement as of such date as may be set forth in the notice. In case of such
termination, Employee shall be entitled to receive his Salary, reimbursable
expenses and benefits owing to Employee through the date of termination.
Employee will not be entitled to any other compensation upon termination of this
Agreement pursuant to this Paragraph 8(b).
9. Termination. (a) MPA or the Companies may terminate the
employment of Employee for Cause (as herein defined). Upon such termination, the
Companies and its affiliates shall be released from any and all further
obligations under this Agreement (it being agreed that MPA shall have no
obligations hereunder), except that the Companies shall be obligated to pay
Employee his Salary, reimbursable expenses and benefits owing to Employee
through the day on which Employee is terminated. Employee will not be entitled
to any other compensation upon termination of this Agreement pursuant to this
Paragraph 9(a).
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(b) As used herein, the term "Cause" shall mean: (i) the willful
failure of Employee to perform his duties pursuant to Paragraph 3 hereof, which
failure is not cured by Employee within twenty (20) days following notice
thereof from MPA or the Companies; (ii) any other material breach of this
Agreement by Employee, including any of the material representations or
warranties made by Employee; (iii) any act, or failure to act, by Employee in
bad faith or to the detriment of MPA or the Companies; (iv) the commission by
Employee of an act involving moral turpitude, dishonesty, theft, unethical
business conduct, or any other conduct which significantly impairs the
reputation of, or xxxxx, MPA or the Companies, their subsidiaries or affiliates;
(v) any misrepresentation, concealment or omission by Employee of any material
fact in seeking employment hereunder; or (vi) any other occurrence or
circumstance generally recognized as "cause" for employment termination under
applicable law.
(c) In the event that during the 90-day period ending on the last
day of the Employment Term the employment of Employee is terminated by the
Companies other than for Cause or the Companies notify Employee of their
election not to renew or extend this Agreement for a period of at least one
year, then Employee, in addition to any and all other amounts to which he
expressly may be entitled hereunder, shall be entitled to a severance benefit in
an amount equal to his Salary multiplied by a fraction the numerator of which
shall be the number of days elapsed in such period up to the date of such
termination or election and the denominator of which shall be 360; provided that
in the event that no notice of such election is given prior to the end of the
Employment Term, then such severance benefit shall be in an amount equal to
one-fourth of such Salary.
10. Disclosure of Information and Restrictive Covenant. Employee
acknowledges that, by his employment, he has been and will be in a confidential
relationship with MPA and the Companies and their affiliates (which term,
whenever used in this Agreement, includes without limitation the Companies'
parent(s)) and will have access to confidential information and trade secrets of
MPA and the Companies, their subsidiaries and affiliates. Confidential
information and trade secrets include, but are not limited to, customer,
supplier and client lists, price lists, marketing, distribution and sales
strategies and procedures, operational and equipment techniques, business plans
and systems, quality control procedures and systems, special projects and
technological research, including projects, research and reports for any entity
or client or any project, research, report or the like concerning sales or
manufacturing or new technology, employee compensation plans and any other
information relating thereto, and any other records, files, drawings,
inventions, discoveries, applications, processes, data and information
concerning the business of MPA or the Companies, their subsidiaries and
affiliates which are not in the public domain. Employee agrees that in
consideration of the execution of this Agreement by the Companies:
(a) Employee will not, during the term of this Agreement or at
any time thereafter, use, or disclose to any third party, trade secrets or
confidential information of MPA or the Companies including, but not limited to,
confidential information or trade secrets belonging or relating to MPA or the
Companies, their subsidiaries, affiliates, customers and clients or proprietary
processes or procedures of MPA or the Companies, their subsidiaries, affiliates,
customers and clients. Proprietary processes and procedures shall include, but
shall not be limited to, all information
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which is known or intended to be known only to employees of MPA or the
Companies, their subsidiaries and affiliates or others in a confidential
relationship with MPA or the Companies or their subsidiaries and affiliates
which relates to business matters.
(b) Employee will not, during the term of this Agreement and for
a period of two (2) years thereafter, directly or indirectly, under any
circumstance other than at the direction and for the benefit of MPA and the
Companies, engage in or participate in any business activity, including, but not
limited to, acting as a director, officer, employee, agent, independent
contractor, partner, consultant, licensor or licensee, franchisor or franchisee,
proprietor, syndicate member, shareholder or creditor or with a person having
any other relationship with any other business, company, firm occupation or
business activity, in any geographic area within Singapore, Malaysia or
southeastern Asia that is, directly or indirectly, competitive with any business
conducted by the Companies or any of their subsidiaries or affiliates during the
term of this Agreement or thereafter. Should Employee own 5% or less of the
issued and outstanding shares of a class of securities of a corporation the
securities of which are traded on a national securities exchange or in the
over-the-counter market, such ownership shall not cause Employee to be deemed a
shareholder under this Paragraph 10(b).
(c) Employee will not, during the term of this Agreement and for
a period of two (2) years thereafter, on his behalf or on behalf of any other
business enterprise, directly or indirectly, under any circumstance other than
at the direction and for the benefit of MPA and the Companies, solicit or induce
any creditor, customer, supplier, officer, employee or agent of MPA or the
Companies or any of their subsidiaries or affiliates to sever its relationship
with or leave the employ of any such entities.
(d) This Paragraph 10 and Paragraphs 11, 12 and 13 hereof shall
survive the expiration or termination of this Agreement for any reason.
(e) It is expressly agreed by Employee that the nature and scope
of each of the provisions set forth above in this Paragraph 10 are reasonable
and necessary. If, for any reason, any aspect of the above provisions as it
applies to Employee is determined by a court of competent jurisdiction to be
unreasonable or unenforceable, the provisions shall only be modified to the
minimum extent required to make the provisions reasonable and/or enforceable, as
the case may be. Employee acknowledges and agrees that his services are of a
unique character and expressly grants to MPA and the Companies or any of their
subsidiaries, affiliates, successors or assignees, the right to enforce the
provisions above through the use of all remedies available at law or in equity,
including, but not limited to, injunctive relief.
(f) It is expressly agreed by Employee that the provisions set
forth above in this Paragraph 10 are separate from and independent of any
similar such provisions entered into under the agreement relating to the
acquisition by MPA of the Companies.
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11. Companies' Property. (a) Any patents, inventions, discoveries,
applications or processes, designed, devised, planned, applied, created,
discovered or invented by Employee in the course of Employee's employment under
this Agreement and which pertain to any aspect of the Companies' or their
respective subsidiaries' or affiliates' business shall be the sole and absolute
property of the Companies, and Employee shall make prompt report thereof to the
Companies and promptly execute any and all documents reasonably requested to
assure the Companies the full and complete ownership thereof.
(b) All records, files, lists, including computer generated
lists, drawings, documents, equipment and similar items relating to the
Companies' business which Employee shall prepare or receive from the Companies
shall remain the Companies' sole and exclusive property. Upon termination of
this Agreement, Employee shall promptly return to the Companies all property of
the Companies in his possession. Employee further represents that he will not
copy or cause to be copied, print out or cause to be printed out any software,
documents or other materials originating with or belonging to the Companies.
Employee additionally represents that, upon termination of his employment with
the Companies, he will not retain in his possession any such software, documents
or other materials.
12. Remedy. It is mutually understood and agreed that Employee's
services are special, unique, unusual, extraordinary and of an intellectual
character giving them a peculiar value, the loss of which cannot be reasonably
or adequately compensated in damages in an action at law. Accordingly, in the
event of any breach of this Agreement by Employee, including, but not limited
to, the breach of the non-disclosure, non-solicitation and non-compete clauses
under Paragraph 10 hereof, MPA and the Companies shall be entitled to equitable
relief by way of injunction or otherwise in addition to damages MPA and the
Companies may be entitled to recover. In addition, MPA and the Companies shall
be entitled to reimbursement from Employee, upon request, of any and all
reasonable attorneys' fees and expenses incurred by it in enforcing any term or
provision of this Agreement.
13. Representations and Warranties of Employee. (a) In order to
induce the Companies to enter into this Agreement, Employee hereby represents
and warrants to MPA and the Companies as follows: (i) Employee has the legal
capacity and unrestricted right to execute and deliver this Agreement and to
perform all of his obligations hereunder; (ii) the execution and delivery of
this Agreement by Employee and the performance of his obligations hereunder will
not violate or be in conflict with any fiduciary or other duty, instrument,
agreement, document, arrangement or other understanding to which Employee is a
party or by which he is or may be bound or subject; and (iii) Employee is not a
party to any instrument, agreement, document, arrangement or other understanding
with any person (other than MPA or the Companies) requiring or restricting the
use or disclosure of any confidential information or the provision of any
employment, consulting or other services.
(b) Employee hereby agrees to indemnify and hold harmless MPA and
the Companies from and against any and all losses, costs, damages and expenses
(including, without
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limitation, its reasonable attorneys' fees) incurred or suffered MPA or by the
Companies resulting from any breach by Employee of any of his representations or
warranties set forth in Paragraph 13(a) hereof.
14. Notices. All notices given hereunder shall be in writing and
shall be deemed effectively given when mailed, if sent by registered or
certified mail, return receipt requested, addressed to Employee at his address
set forth on the first page of this Agreement and to the Companies at the
address set forth on the first page of this Agreement, with a copy to MPA, 0000
Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Mr. Xxxxxxx Xxxxx,
President, and with a copy to Xxxxxx Xxxxxx Flattau & Klimpl, LLP, 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, Esq., or at
such address as such party shall have designated by a notice given in accordance
with this Paragraph 14, or when actually received by the party for whom
intended, if sent by any other means.
15. Entire Agreement. This Agreement constitutes the entire
understanding of the parties with respect to its subject matter and no change,
alteration or modification hereof may be made except in writing signed by the
parties hereto. Any prior or other agreements, promises, negotiations or
representations not expressly set forth in this Agreement are of no force or
effect.
16. MPA Ownership. Employee acknowledges and agrees that the
Companies are controlled by its parent, MPA, and that any reference in this
Agreement to the judgment, discretion, opinion or other determination of any
kind (including as contemplated by Paragraph 9) to be made by the Companies may
be made on behalf of the Companies by MPA.
17. Severability. If any provision of this Agreement shall be
unenforceable under any applicable law, then notwithstanding such
unenforceability, the remainder of this Agreement shall continue in full force
and effect.
18. Waivers, Modifications, Etc. No amendment, modification or
waiver of any provision of this Agreement shall be effective unless the same
shall be in writing and signed by each of the parties hereto, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
19. Assignment. Neither this Agreement, nor any of Employee's
rights, powers, duties or obligations hereunder, may be assigned by Employee.
This Agreement shall be binding upon and inure to the benefit of Employee and
his heirs and legal representatives and the Companies and their successors and
assigns. Successors of the Companies shall include, without limitation, any
corporation or corporations acquiring, directly or indirectly, all or
substantially all of the assets of the Companies, whether by merger,
consolidation, purchase, lease or otherwise, and such successor shall thereafter
be deemed "the Companies" for the purposes hereof.
20. Applicable Law. This Agreement shall be deemed to have been
made, drafted, negotiated and a portion of the transactions contemplated hereby
consummated and performed in the
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State of New York and shall be governed by and construed in accordance with the
laws of the State of New York, without regard to the conflicts of law rules
thereof. Nothing contained in this Agreement shall be construed so as to require
the commission of any act contrary to law, and whenever there is any conflict
between any provision of this Agreement and any statute, law, ordinance, order
or regulation, contrary to which the parties hereto have no legal right to
contract, the latter shall prevail, but in such event any provision of this
Agreement so affected shall be curtailed and limited only to the extent
necessary to bring it within the legal requirements.
21. Jurisdiction and Venue. It is hereby irrevocably agreed that all
disputes or controversies between the Companies and Employee arising out of, in
connection with or relating to this Agreement shall be exclusively heard,
settled and determined by arbitration to be held in the City of New York, County
of New York, in accordance with the Commercial Arbitration Rules of the American
Arbitration Association then in effect. The parties also agree that judgment may
be entered on the arbitrator's award by any court having jurisdiction thereof
and the parties consent to the jurisdiction of any court located in the City of
New York, County of New York, for this purpose.
22. Full Understanding. Employee represents and agrees that he fully
understands his right to discuss all aspects of this Agreement with his private
attorney, that to the extent, if any that he desired, he availed himself of this
right, that he has carefully read and fully understands all of the provisions of
this Agreement, that he is competent to execute this Agreement, that his
agreement to execute this Agreement has not been obtained by any duress and that
he freely and voluntarily enters into it, and that he has read this document in
its entirety and fully understands the meaning, intent and consequences of this
document which is that it constitutes an agreement of employment.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
MVR PRODUCTS PTE LIMITED
By:_________________________________
Name:
Title:
UNIJOH SDN, BHD
By:_________________________________
Name:
Title:
_________________________________
Xxxxxxx Xxxx
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