EXHIBIT 10.34
MANAGING DIRECTOR/VICE PRESIDENT OPERATIONS CONTRACT
between
Xxxxxxx Germany GmbH
(hereinafter referred to as the "Company" or "BGG")
and
Xx. Xxxxxxx Xxxxxxx
(hereinafter referred to as "Managing Director" or "Vice President Operations")
PREAMBLE
This Employment Agreement sets forth the terms of your employment as the
Managing Director ("Vorsitzender der Geschaftsfuehrung") of Xxxxxxx Germany GmbH
in Friedberg, Germany and Vice President Operations of the Xxxxxxx Group
effective July 1, 2009 and it supersedes your current employment agreement
signed and dated on June 28, 2007.
1. DUTIES AS MANAGING DIRECTOR/VICE PRESIDENT OPERATIONS
The Managing Director/Vice President Operations will report directly to the
President and CEO of Xxxxxxx Technology Company, Inc. ("BTI") and shall be
responsible for the operational leadership with direct reporting of the
following areas: all Product Units including the areas of Engineering, R&D,
Documentation, Testing and Assembly, as well as the indirect functions including
Finance & Accounting, Human Resources, Legal, and IT of the Xxxxxxx Group's
operations in Germany, China, Sweden, India, and Americas. The Managing
Director/Vice President Operations shall represent the Company in compliance
with the law, this Contract of Employment, and the directions of BTI, of which
BGG is a wholly owned subsidiary. The Managing Director/Vice President
Operations shall also be a member of the Xxxxxxx Leadership Team (BLT), which
consists of seven members including the President & CEO and CFO of BTI.
Periodically from time to time, the Company or Xxxxxxx Group may change the
duties and responsibilities of the Managing Director/Vice President Operations
or the location of the Company's or Xxxxxxx Group's operations by adding to them
or subtracting from them.
In the course of his activities, the Managing Director/Vice President Operations
shall look after the Company's operational, commercial, financial and
organizational interests in the best possible manner. He shall fulfill his
duties with the due diligence of a prudent businessman and shall be responsible
for the compliance with the existing statutory obligations. The Managing
Director/Vice President Operations shall represent the Company in and out of
court together with a Co-Managing Director or an Authorized Signatory
(Prokurist). Internally, he shall be solely in charge of, and solely responsible
for all operations as identified herein.
The Managing Director/Vice President Operations shall exercise the Company's
rights and fulfill the Company's obligations in accordance with the provisions
of all employment and social welfare law.
The Managing Director/Vice President Operations shall be bound by the
instructions of the Company and BTI. Any acts going beyond the Company's usual
operations and limits of the Delegation of Authority require prior consent from
the President & CEO of BTI.
Although the duties of the Managing Director/Vice President Operations hereunder
shall require him to travel to other Company and Subsidiary locations, the
Managing Director/Vice President Operations' primary location of work shall be
in Friedberg, Germany. At the Company's or Xxxxxxx Group's request, the Managing
Director/Vice President Operations' location of work may be changed.
The Managing Director/Vice President Operations shall make his entire working
capability and all his knowledge and experience available to the Company and to
the entire Xxxxxxx Group.
The Managing Director/Vice President Operations shall not be bound by particular
working hours. He shall be required to be available for providing services
whenever and insofar as this is required for the well-being of the Company and
the Xxxxxxx Group.
2. TERM OF CONTRACT
This Employment Agreement shall be effective July 1, 2009 and will remain valid
until terminated by the Company or the Managing Director/Vice President
Operations in writing with six (6) months notice as of the end of any month. The
Company shall have the right to remove the Managing Director/Vice President
Operations from his position during the notice period or part of the notice
period. Such removal shall not impact the Managing Director/Vice President
Operations' employment benefits under this agreement.
At latest, this Contract shall expire at the end of the month in which the
Managing Director/Vice President Operations reaches the age of 65, without an
express termination being necessary.
This Contract may be terminated by the Company for cause at any time without
notice. A cause for such termination shall exist, if the Managing Director/Vice
President Operations violates the non-competition clause or if the Managing
Director/Vice President Operations acts disloyally and detrimentally in relation
to the Company and/or Xxxxxxx Group.
In the case the Managing Director/Vice President Operations' Contract is
terminated by the Company without cause prior to age 65, the Company will pay
the Managing Director/Vice President Operations severance pay in an amount equal
to the last monthly
base salary at the time of termination for a period of six (6) months following
the expiration of the notice period.
3. SALARY AND MICP
The Managing Director/Vice President Operations shall be paid a base monthly
salary amounting to Euro 190,000 per annum payable in monthly installments on
the last day of each month.
Said salary will include the pay for any and all overtime hours, claims for any
pay for overtime hours, work on Sundays or public holidays and any other
additional work shall not be permitted under this agreement.
Effective January 1, 2010 the base salary will be increased to Euro 200,000 per
annum. Beginning on January 1, 2011, the President & CEO of BTI shall review the
Managing Director/Vice President Operations' performance and attainment of
mutually agreed-upon objectives, each succeeding year consistent with the
effective date of January 1st. The Managing Director/Vice President Operations'
base salary for the ensuing twelve (12) month period may be increased, subject
to the approval of the Compensation Committee of the Board of Directors and the
Board of Directors of BTI, in accordance with the level of performance of the
Managing Director/Vice President Operations as well as the market and business
conditions of the Xxxxxxx Group.
The Managing Director/Vice President Operations shall be eligible to participate
in the BTI Management Incentive Compensation Plan (MICP) at a level of 50% of
his annual base salary to be calculated in accordance with paragraph 3 and shall
be defined in accordance with the MICP. The Managing Director shall receive a
detailed key to the MICP and bonus computation under separate cover.
The payment of any actual bonus shall not form the basis of any legal claim
against the Company as regards to the ground and amount, even if such payment is
made repeatedly or without the express reservation of it being non-compulsory.
4. EQUITY COMPENSATION
The position of Managing Director/Vice President Operations is considered at a
level that is eligible for future consideration for participation in the BTI's
2005 Equity Compensation Plan. The Compensation Committee of the Board of
Directors of BTI administers this plan, and recommendations for equity awards to
the full Board of Directors under the plan are usually considered at the time of
the Board's August and November meetings.
5. OUT-OF POCKET EXPENSES, COMPANY CAR
Subject to the approval of the President & CEO of BTI, the Managing
Director/Vice President Operations shall be reimbursed adequate out-of-pocket
expenses to the extent they are in accordance with Company policy, are
recognized for tax purposes, and are proven to have actually been incurred.
For the duration of the Managing Director/Vice President Operations' employment,
the Company shall provide the Managing Director/Vice President Operations with a
leased company car (Audi A6 or BMW 5 Series) with a net purchase value of up to
Euro 60,000 for his professional and private use. The income tax on the benefits
in money's worth resulting from the private use of the car shall be borne by the
Managing Director/Vice President Operations. In addition, the company's Company
Car Regulations, as amended, shall apply.
In the case of any dismissal or end of the Managing Director/Vice President
Operations' activities - regardless of the cause - the Managing Director/Vice
President Operations shall retain the right to use the company car provided to
him during the six (6) month notice period only. At the expiration of the notice
period the Managing Director/Vice President Operations must return the car
immediately on the Company's request; a right of retention shall not exist
beyond any imposed notice period.
6. PENSION INSURANCE
The Company shall assume the cost of up to Euro 500 per month related to an
existing private pension insurance. Any cost beyond Euro 500 per month and any
income tax resulting from such reimbursement shall be the responsibility of the
Managing Director/Vice President Operations.
7. HOLIDAY
The Managing Director/Vice President Operations may claim a paid holiday of six
(6) weeks (30 working days) per business year. The time of the holiday shall be
chosen and, if required, coordinated so that the Company's and the Xxxxxxx
Group's needs are taken into account in every way.
8. DUTY TO BE LOYAL, COMPANY SECRETS
The Managing Director/Vice President Operations agrees no to disclose to any
third person or parties any and all business, operational or technical
information, processes, trade secrets, or proprietary information which are
entrusted to him or otherwise come to his knowledge and which concern the
Company or Xxxxxxx Group and are of internal and confidential nature. The
obligation set forth above, shall continue to exist and survive the termination
of the employment relationship.
Business and Company and Xxxxxxx Group documents of all kinds, including
personal records concerning work-related matters, may be used for business
purposes only. Such documents shall be kept in a diligent manner and handed over
on the request at any time, but at the latest upon termination of the employment
relationship.
9. SIDELINE ACTIVITIES, NON-COMPLIANCE CLAUSE
During the Managing Director/Vice President Operations' employment hereunder he
shall devote his best and full-time efforts to the business and affairs of the
Company and the Xxxxxxx Group. During the duration of the Managing Director/Vice
President Operations' employment with the Company, he shall not commence any
employment with, or participate in, the business affairs of, any other person,
corporation, or entity,
whether paid or unpaid, except at the direction of or with the written approval
of the President & CEO of BTI and the Board of Directors of BTI. The same shall
apply to any taking-over of seats in supervisory boards and of honorary posts,
particularly in associations and leagues.
Upon termination of the employment relationship, the Company will require that
during the period of notice and if terminated by the Company, for an additional
period of six (6) months following the expirations of the period of notice, the
Managing Director/Vice President Operations shall not in any geographical
location in which there is at that time business conducted by the Company or its
Affiliates at the date of such termination, directly or indirectly, own, manage,
operate, control, be employed by, participate in, or be connected in any manner
with the ownership, management, operation, control of any business that is
competitive with such business conducted by the Company or its Affiliates
without the written consent of the Company or the Xxxxxxx Group.
As consideration for his obligation under paragraph 10 (2) - non-competition -
clause for an additional period of six (6) months, the Managing Director/Vice
President Operations shall receive per month 50% of his average, total salary
that was paid to him during the last 12 months before the end of the period of
notice.
Any severance payment that is made under paragraph 2 (4) is to be deducted from
the foregoing consideration.
The Company and its Affiliates' area of activity comprises the production and
distribution of additional sets or components for the printing press industry.
Primarily, these are cleaning system, refrigeration and circulation systems, web
control and safety equipment, spray dampening equipment, dryers and consumables
such as washing tissues and detergents for cylinder cleaning, fountain
solutions, glue, and other related consumables, services such as installation
and commissioning, after sales service, and spare parts.
This prohibition of competition comprises all forms of activity, whether as an
employee or self-employed person, direct or indirect, also on third parties
account or occasional, in the form of participation, sub-participations, silent
partnerships, consultancies or favors; this shall also apply to the foundation
of such a competing enterprise or the acquisition of shares of it.
For each violation of the non-competition clause, the Managing Director/Vice
President Operations shall be obliged to pay the Company a contractual penalty
of the amount of three monthly salaries. In the case of any permanent violation
of the non-competition clause, the activities during one month shall be
considered as an independent violation within the meaning of this clause. Any
claims for damages shall remain unaffected.
10. INVENTIONS/INTELLECTUAL PROPERTY RIGHTS
So long as the Managing Director/Vice President Operations shall be employed by
the Company, he will agree promptly to make known the existence to the Company
of any
and all creations, inventions, discoveries and improvements made or conceived by
him, either solely or jointly with other, during the period of his employment
under this Agreement, to assign to the Company the full exclusive rights to any
and all subject matter with which the Company is now or shall become concerned,
or relating to any other subject matter if made with the use of the Company's
time, materials or facilities. To the fullest extent permitted by law, any
foregoing inventions shall be considered "work-made-for-hire" and the Company
shall be the owner thereof. The Managing Director/Vice President Operations
further agrees, without charge to the Company, to execute, acknowledge and
deliver all papers, including applications or assignment of patents, trademarks
or copyrights for such creations, inventions, discoveries, and improvements in
any and all countries and to vest title thereto in the Company in all
inventions, creations, discoveries, and improvements as indicated above and
conceived during his employment with the Company.
11. LEGAL BASES, PLACE OF JURISDICTION
German law shall apply to this Managing Director/Vice President Operations'
Contract. The place of jurisdiction shall be the Company's place of business.
12. FINAL PROVISIONS
Any changes and additions to this Contract must be in writing and signed by both
parties.
Should individual provisions of this Contract be or become legally ineffective
in full or in part, the validity of the remaining contractual provisions shall
remain unaffected. In such case, the ineffective provision shall be replaced by
a legally effective provision which comes as close as possible to the
recognizable commercial purpose as is permitted by law. This shall apply
accordingly is during the performance of this Contract gaps which need to be
filled become obvious.
By: /s/ Xxxx X. Xxxxxxxxxx
---------------------------------
Xxxx X. Xxxxxxxxxx
Managing Director Xxxxxxx Germany
GmbH
Date: _______________________
AGREED TO AND ACCEPTED:
/s/ Xxxxxxx Xxxxxxx
-------------------------------------
Xx. Xxxxxxx Xxxxxxx
Date: 18.9.09
