EXHIBIT 10.1
SERVICE CONTRACT
FOR MANAGING DIRECTOR
BETWEEN
DURA Holding Germany GmbH
- "THE COMPANY" -
and
Xxxxxx xxx Xxxxxx
- "THE MANAGING DIRECTOR" -
Xx. Xxxxxx xxx Xxxxxx is employed by the Dura group since [date], during the
past years by Dura Automotive Systems, Inc.
Xx. Xxxxxx xxx Xxxxxx is already appointed managing director of the Company. On
this basis the Parties agree on the following Service Contract:
1. POSITION AND SCOPE OF DUTIES
1.1 As of January 1, 2006, Xx. xxx Xxxxxx shall be employed by the Company as
managing director (Geschaftsfuhrer), in the function of Divisional
President and Vice President Dura Automotive Systems.
1.2 The shareholders reserve the right to appoint additional managing
directors (Geschaftsfuhrer) and/or assign different or additional
responsibilities to Xx. Xxx Xxxxxx and determine an allocation of
responsibilities as well as the authority to represent the Company singly
or jointly.
1.3 The Managing Director shall perform his duties as managing director by
observing the diligence of a prudent businessman in accordance with the
law, the provisions of this Service Contract, the Company's Articles of
Association, the general directives and specific instructions given by the
shareholders and the President and Chief Executive Officer of Dura
Automotive Systems, Inc., as well as the Standing Orders for the
Management as amended from time to time.
1.4 The Managing Director shall report to the President and Chief Executive
Officer of Dura Automotive Systems, Inc. The Managing Director may consult
the President and Chief Executive Officer of Dura Automotive Systems, Inc.
on any issue that is beyond the ordinary operation of the business. In
case of doubt, he shall request directions in writing. The position of
President and Chief Executive Officer of Dura Automotive Systems, Inc. is
currently held by Xxxxxxxx X. Xxxxxx.
1.5 The Managing Director shall work whatever hours are required.
2. OTHER ACTIVITIES
2.1 The Managing Director shall devote his full working time and ability to
the Company's business. For the duration of this contract, any other
activity, be it with or without remuneration, is subject to the explicit
prior written consent of the shareholders or of the President and Chief
Executive Officer of Dura Automotive Systems, Inc.
The Managing Director is permitted to continue his involvement in several
agricultural farms, provided that it does not disturb his activities for
the Company.
In so far as the Managing Director has assumed functions as a member of
supervisory boards or in similar positions in the interest of the Company
he has to surrender these positions on request of the Company in case this
Service Contract terminates.
2.2 Academic and journalistic activity is permitted, provided that the Company
is informed previously and that such activity does not adversely affect
the function and working capacity of the Managing Director, a disclosure
of confidential information is not to be expected, and this does not in
any other way interfere with the interests of the Company.
3. REMUNERATION
3.1 The Managing Director shall be entitled to an annual gross base salary in
the amount of EUR 361,255.00, the net amount of which shall be paid in 12
equal monthly installments, payable in arrears.
In addition, the Company shall pay half of the mandatory social security
contributions (Sozialversicherungsbeitrage) including contributions to
state unemployment insurance, health insurance and nursing care insurance.
In case the Managing Director opts for a private health insurance instead
of the statutory health insurance, the Company will bear half of the
contributions to the Managing Director's private health insurance up to a
maximum of the amount which it would have to pay for the statutory health
insurance.
Upon payment of the above-mentioned salary, all activities the Managing
Director has to perform under this Service Contract shall be compensated.
This also applies to activities for the benefit of other companies of the
group.
3.2 The Managing Director's annual base salary shall be considered for
increase at the same time as other Leadership Team Executives. The
decision whether to increase the Managing Director's salary shall remain
at the sole discretion of the President and Chief Executive Officer of
Dura Automotive Systems, Inc.
3.3 The Managing Director participates in the Dura Automotive Systems, Inc.
Annual Bonus Plan at a Bonus Factor 1 of 60% (of
base salary according to Section 3.1). The conditions and the amount of
bonus payment are determined by the Annual Bonus Plan as applicable from
time to time. The currently applicable Annual Bonus Plan is enclosed as
EXHIBIT 1.
3.4 The Managing Director is entitled to occupational pension benefits on the
basis of the pension commitment dated July 15, 1997 and its amendment
dated November 26, 1997. The currently applicable version of the pension
commitment is enclosed as EXHIBIT 2.
The Managing Director is entitled to receive the unreduced old age pension
benefits already with the beginning of the first full calendar month after
he has completed 60 years of age. Precondition for benefit payments based
on the pension commitment in any event is that the Manaing Director is not
further employed by the Company or one of its affiliated companies on this
date.
4. OTHER BENEFITS
4.1 Travel expenses and other necessary expenses reasonably incurred by the
Managing Director in the furtherance of the Company's business shall be
reimbursed according to the guidelines of the Company as force from time
to time and within the framework of the tax regulations applicable
in Germany.
4.2 The Company shall provide the Managing Director in accordance with its
rules with a company car type BMW 740i for business and private use. The
Company reserves the right to substitute the car by another company car
equal in value. The value of the private use per calendar month is
considered additional compensation to the Managing Director, which will be
subject to wage withholding tax.
The costs of maintenance and use of the company car shall be borne by the
Company.
4.4 The Company shall provide accident insurance cover in case of accidents on
business and private accidents for benefit of the Managing Director in its
currently existing form (insurance coverage in case of death or
invalidity: EUR 511,000.00) and shall pay the insurance premium during the
contract period. In case of death, the amount shall be paid to the
inheritors of the Managing Director. The Company shall pay any taxes due
for the insurance premiums.
All claims by the Managing Director arising from the insurance shall be
extinguished with his leaving service with the Company.
5. INABILITY TO PERFORM DUTIES
5.1 In case the Managing Director shall be unable to perform his duties under
this Service Contract, be it for health or other reasons, he shall inform
the Company immediately. This obligation to inform also applies to the
estimated duration and the reasons for the inability to perform duties. In
case of illness, the Managing Director shall provide the Company with a
medical certificate regarding the inability to work and its estimated
duration on the third calendar day of his inability to perform his duties
at the latest.
5.2 If the Managing Director is prevented from carrying out his duties under
this Service Contract due to illness he shall continue to be entitled to
payment of his base salary according to Section 3.1 of this contract for a
period of up to 6 months beginning on the first day of his inability to
work, provided that this Service Contract does not end earlier. From the
7th until and including the 9th month of inability to work, the difference
between the net income and the sickness pay which would be payable as the
maximum amount in the event of membership in the Company's health
insurance scheme is paid. The obligation to continue payments ceases no
later than the date of termination of this Service Contract.
5.3 In case of death of the Managing Director during the period of this
contract of service his dependants who are entitled to support shall be
entitlted to receive together the base salaray according to Section 3.1 of
this Service Contract for the month in which death occurs and for a
further six months.
6. VACATION
6.1 The Managing Director shall be entitled to an annual vacation of 30
working days. Saturdays are not considered working days.
6.2 The time of vacation shall be taken during the relevant calendar year
taking into consideration the business needs of the Company and the duties
of the Managing Director.
6.3 Holiday entitlement accrues pro rata month by month through the calendar
year. This also applies to the year in which the Managing Director enters
the Company as well as to the year in which he leaves.
6.4 Incidentally, the Federal Holiday with Pay Act (Bundesurlaubsgesetz) shall
be applied mutatis mutandis
7. SECRECY
7.1 The Managing Director shall not disclose to any third party, or use for
personal gain, any confidential technical or other business information
which has been entrusted to him, or which has otherwise become known to
the Managing Director and which relates to the Company or to any of its
affiliated companies. In particular, no information may be disclosed
concerning the organisation of the business, the relations with clients
and customers and the Company's technical
know-how. This obligation shall not expire upon termination of this
Service Contract but shall continue to remain in force thereafter.
7.2 Business records of any kind, including private notes concerning
Company affairs and activities, shall be carefully kept and shall be
used for business purposes only. No copies or extracts or duplicates of
drawings, calculations, statistics and the like nor of any other
business records or documents may be made for purposes other than for
the Company's business.
7.3 The Managing Director shall return all items pertaining to the Company
or any of its affiliates at the location of its business offices at any
time upon request of the Company, and without solicitation in the event
the Managing Director is removed and in case he is released from his
duties, in particular:
- credit cards,
- office keys,
- all business documents and copies thereof, irrespective of the
data carrier.
The Managing Director shall have no right of retention to the
above-mentioned items.
8. GRANTING OF PROPRIETARY RIGHTS
8.1 The Managing Director hereby irrevocably grants the Company the
exclusive right, unrestricted as to time, territory and content, to use
work products protected by copyright or ancillary rights ("WORK
PRODUCTS"), which he creates in the course of performance of his
contractual duties hereunder. This irrevocable and exclusive right
shall take effect upon its creation. The Managing Director is not
entitled to any other use of his Work Products. This grant includes the
right of the Company to use any copyrights and ancillary rights in a
tangible and intangible form, both within and outside Germany, and
entitles the Company to assign and sublicense any such rights to any
third person, irrespective of the scope of application of the
sublicense as to time, territory and content.
The granting of rights includes, but is not limited to:
8.1.1 the right to permanently, temporarily and repeatedly reproduce, publish
and distribute any Work Products or parts hereof entirely or partly,
irrespective of medium and form. This applies in particular to the
print media, film, radio and/or digital media, public and private
networks of every kind (Internet, Intranet, extranet, mobile data
networks) as well as databases and electronic carrier media. This right
also includes the right to digitize the
Work Product;
8.1.2 the right to translate and edit Work Products or parts hereof as well
as to reproduce and distribute the results of the translation and
editing in terms of the above 8.1.1;
8.1.3 the right to exhibit and publicly present Work Products, including the
right to provide access to them to any third person via public and
private networks, in particular via Internet or any other interactive
call or pull systems, and including the right to introduce the Work
Products into and store them in such systems;
8.1.4 the right to join Work Products or parts hereof with other works, parts
of works or any other information and to exploit, use or edit the
result in any form, in particular in the actions mentioned above in
Sections 8.1.1 - 8.1.3.
8.2 The Managing Director's rights existing in accordance with Section 38
para. 1 sentence 2 German Copyright Act (Urheberrechtsgesetz) are
explicitly excluded. Furthermore, the Managing Director waives any of
his possible author's
personal rights existing with regard to the Work Products as far as
they may affect the undisturbed use by the Company. In particular, the
Managing Director waives his right to publish the Work Products and
consents to modifications of his work within a scope customary in the
industry. The Managing Director's right to prohibit distortions, other
impairments or uses which are capable endangering the legitimate
intellectual and personal interests intrinsic to the work remain
unaffected.
8.3 In addition, the Managing Director assigns all rights with regard to
any data bases created within the scope of his contractual duties in
such manner that the Company is the producer of the data bases
according to Section 87a German Copyright Act (Urheberrechtsgesetz).
8.4 The Managing Director grants the Company the right to assign all of the
rights referred to under the Sections 8.1 - 8.3 above to third parties
and to permit them to exploit the Work Products both within and outside
Germany.
8.5 The above granting of all rights to use and to exploit the Work
Products is deemed to be remunerated in full by the salary agreed to in
Section 3.
8.6 The Managing Director hereby irrevocably and completely grants the
Company all patentable inventions, inventions that may be registered as
utility models and suggestions
for technical improvements made by the Managing Director as well as
work products protected by industrial property rights. The Managing
Director is obliged to immediately disclose to the Company any
inventions and suggestions for technical improvement he makes within
the scope of this Service Contract. The Managing Director will assist
the Company with the registration of industrial property rights on
behalf of the Company to the best of his ability, and will, in
particular, make the necessary declarations to the respective
registration authority and present the necessary documents.
8.7 In addition, all other work products created by the Managing Director
during and in connection with this Contract belong to the Company and
no additional remuneration shall be payable by the Company. The
Managing Director is obliged to offer any other work products first to
the Company for the purpose of exploitation.
9. TERM OF EMPLOYMENT AND NOTICE
9.1 This Service Contract is concluded for an indefinite period. Each party
is entitled to terminate this Service Contract by giving 12 months
prior notice effective to the end of a calendar year.
9.2 The service relationship shall end in any event, without the need to
give notice, not
later than the expiry of the month during which the Managing Director
attains the age of 65, or the month during which the Managing Director
is entitled to receive state old age pension or pension for reduction
in earning capacity, whichever occurs first.
9.3 In case the Managing Director has been removed, the Company is entitled
to unilaterally release the Managing Director from his duty to work for
the remaining term of this Contract, whilst continuing to pay his base
salary (Section 3.1) and the bonus (Section 3.3) calculated on the
basis of the average percentage paid to the Leadership Team. The bonus
payment, however, is under the condition that the other members of the
Leadership Team also receive a bonus payment during the time at which
the Managing Director is released. The Managing director is furthermore
entitled to use the company car provided to him in the first 12
(twelve) months of a release on the same conditions as before.
Thereafter, he is obliged to return the company car to the Company.
Other payments shall not be made during the period of release.
Any open vacation claims shall be deemed to be compensated by such
period of irrevocable release. The open vacation shall be taken from
the first day after the release on without interruption.
After the vacation, any earnings the Managing Director receives due to
other employment of his labour shall be deducted from his salary, but
not such earnings that the Managing Director receives from his already
permitted side activities for several agricaultural farms (number 2.1).
The Managing Director has to inform the Company, without being asked,
about any remuneration he obtains apart from the salary he receives
from the Company. This duty to inform also includes the amount of the
remuneration. If the Company so requires, the Managing Director has to
prove this information by presenting auditable records.
The obligations to seek explicit prior written consent of the
shareholders or of President and Chief Executive Officer of Dura
Automotive Systems, Inc. according to Section 2. before taking up any
other activity, and to comply with the non-compete covenant effective
during the term of this Service Contract remain unaffected during the
period of release.
9.4 Each party's right to terminate in exceptional cases, in particular to
give termination without notice, remains unaffected.
9.5 Notice of termination must be given in writing. A revocation of the
appointment as Managing Director shall, at the same time, be
deemed to be a termination with notice, provided that no termination
for cause has been given.
10. FINAL PROVISIONS
10.1 This Service Contract represents the entire agreement and understanding
of the parties. All previous employment contracts or service contracts
concluded with the Company or its affiliates are cancelled explicitly
and by consent of both parties effective to the commencing date of this
Service Contract (compare Section 1.1).
10.2 Any amendments or additions to this Contract, including this clause on
written form, are only effective if made in written form.
10.3 If one of the provisions of this Service Contract is held to be
invalid, the remaining provisions shall remain valid. The invalid
provision shall be replaced by a valid one, which is as close as
possible to the economic effect of the invalid provision. The same
shall apply in the event that the Contract is found to be incomplete.
10.4 In the event of disputes in connection with this Service Contract the
place of jurisdiction shall be the corporate seat of the Company.
10.5 This Service Contract shall be governed and construed in accordance
with the laws of the Federal Republic of Germany.
10.6 In case of doubt the German version of this Contract shall prevail.
Die Gesellschaft/The Company vertreten durch/ represented by:
Place, Date: February 1, 2006
Signature: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President Human Resources
Der Geschaftsfuhrer/The Managing Director
Ort, Datum: February 7, 2006
Unterschrift: /s/ Xxxxxx xxx Xxxxxx
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Name: Xxxxxx xxx Xxxxxx
Titel: Division President
