Exhibit 10.49
▇▇▇▇▇▇▇ Technology Company, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Tel: ▇▇▇ ▇▇▇-▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
September 19, 2001
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇▇▇▇▇▇:
This Agreement sets forth the terms of your employment with ▇▇▇▇▇▇▇
Technology Company, Inc., a Delaware corporation (the "Company"), and it is
effective as of November 1, 2001 and if not extended or unless sooner
terminated, shall expire on November 1, 2006.
1. DUTIES. During the term of your employment hereunder, you shall be
employed as the Vice President of Operations, and you shall direct and manage
the manufacturing facilities of the Company subject to the direction of the
President of the Company. You shall also be a member of the ▇▇▇▇▇▇▇ Leadership
Team.
2. COMPENSATION. As compensation for your services during the term of
your employment hereunder:
A. Salary. You shall be paid a salary at the annual rate of
one hundred ninety thousand Euros (190,000) (hereinafter referred to as your
"base salary"), payable in appropriate installments to conform with regular
payroll dates for salaried personnel of the Company.
B. Reviews and Adjustments. On or about November 1, 2002 and
each succeeding November 1 during the term of your employment hereunder, your
performance shall
be reviewed by the President of the Company and your attainment of mutually
agreed-upon objectives evaluated; your base salary for the ensuing twelve (12)
months commencing on such November 1 may be adjusted, subject to approval by the
Compensation Committee of the Board of Directors of the Company, in accordance
with your level of performance. In no case, however, will any such adjustment to
your salary ever be a negative amount unless you expressly agree to such a
reduction.
C. Incentive Compensation. During the term of your employment
hereunder, and at such other times subsequent thereto as are otherwise set forth
herein, you shall annually be eligible for receiving, within three (3) months of
the end of each fiscal year, beginning with the fiscal year ending June 30,
2002, incentive compensation based on a target bonus of 40% of base salary in an
amount determined for such fiscal year under the Company's Executive and Key
Person Cash Incentive Program (the "Incentive Program") as in effect at that
time.
D. Supplemental Retirement Benefit. On the first day of each
month that you are still providing services under the terms of this Agreement,
the Company shall accrue for your Supplemental Retirement Benefit, an amount
necessary to ensure that, to the extent vested, the amount accrued would be
sufficient to support monthly payments to equal to 30% of your average base
salary for the previous three (3) years. (See Attachment I). These payments
("Supplemental Retirement Benefit") are to be paid to you in equal monthly
installments over a ten (10) year period beginning at such times as are set
forth in this Agreement. These Supplemental Retirement Benefits will vest, in
each case, assuming you are then employed by the Company, as follows: as of
November 1, 2002 it shall be vested to the extent of 20%, as of November 1, 2003
it shall be vested to the extent of 40%, as of November 1, 2004 it shall be
vested to the extent of 60%, as of November 1, 2005 it shall be vested to the
extent of 80%, and
2
as of November 1, 2006 it shall be vested to the extent of 100% so that as of
the latter date the full amount of the Aggregate Supplemental Retirement Benefit
shall be due and payable in the instances set forth elsewhere in this Agreement.
E. Social Security. The Company will comply with German laws
regarding social security payments.
3. INSURANCE. During the term of your employment hereunder, the
Company, subject to your insurability, shall (i) pay the premiums on a contract
or contracts of life insurance on your life providing for an aggregate death
benefit of five hundred thousand dollars ($500,000), which contract or contracts
will be owned by you, your spouse or such other party as may be designated by
you; and (ii) purchase key person term life insurance on your life in the
aggregate amount of one million dollars ($1,000,000), which contract or
contracts will be owned by the Company.
4. REIMBURSEMENT OF EXPENSES. In addition to the compensation provided
for herein, the Company shall reimburse to you, or pay directly, in accordance
with the policies of the Company as in effect at the time, all reasonable
expenses incurred by you in connection with the business of the Company, and its
Subsidiaries (as defined in Section 5 of this Agreement) and affiliates,
including but not limited to business-class travel, reasonable accommodations,
and entertainment, subject to documentation in accordance with the Company's
policy.
5. EXTENT OF SERVICES.
A. In General. During the term of your employment hereunder
you shall devote your best and full-time efforts to the business and affairs of
the Company.
3
B. Limitation on Other Services. During the term of your
employment hereunder, you shall not undertake employment with, or participate
in, the conduct of the business affairs of, any other person, corporation, or
entity, except at the direction or with written approval of the Board of
Directors of the Company.
C. Personal Investments. Nothing herein shall preclude you
from having, making, or managing personal investments which do not involve your
active participation in the affairs of the entities in which you so invest, but,
unless approved in writing by the Board of Directors of the Company, during the
term of your employment hereunder, you shall not have more than a one percent
(1%) ownership interest in any entity which is directly competitive with any
business conducted by the Company at that time. The phrase "conducted by the
Company" as used in this ▇▇▇▇▇▇▇▇▇ ▇▇ and in Paragraph 12 hereof shall mean the
business conducted by the Company or by any corporation or other entity in which
the Company owns fifty percent (50%) or more of the stock or equity interests
(either voting or non-voting) in such other entity (a "Subsidiary").
6. LOCATION. Your office shall be located in Munich, Germany. This
location may change in the future. Your duties hereunder shall be performed for
the Company worldwide.
7. VACATION; OTHER BENEFITS.
A. Vacation. During the term of your employment hereunder, you
shall be entitled to a vacation or vacations, with pay, in accordance with the
Company's vacation policy as in effect at the time. Your yearly vacation accrual
will be thirty (30) working days of annual vacation per year in year one and all
subsequent years. You may accumulate up to twelve (12) weeks vacation, but not
more than three (3) weeks from any single prior year. Any such
4
accumulated vacation may be used in any subsequent year or years (but no more
than two (2) weeks of such accumulated vacation in any one year) in addition to
the vacation to which you are entitled for each such year.
B. The Company's Benefit Plans. During the term of your
employment hereunder, you shall be eligible for inclusion, to the extent
permitted by law, as a full-time employee of the Company, in any and all (i)
pension, profit sharing, savings, and other retirement plans and programs as in
effect at the time, (ii) life and health (medical, dental, hospitalization,
short-term and long-term disability) insurance plans and programs as in effect
at the time, (iii) stock option and stock purchase plans and programs as in
effect at the time, (iv) accidental death and dismemberment protection plans and
programs as in effect at the time, (v) travel accident insurance plans and
programs as in effect at the time, and (vi) other plans and programs at the time
sponsored by the Company or any Subsidiary for employees or executives generally
as in effect at the time, including any and all plans and programs that
supplement any or all of the foregoing types of plans or programs.
C. Automobile. During the term of your employment hereunder,
the Company shall provide an automobile for your use pursuant to the Company's
written policy on company autos as in effect at that time. Maintenance,
insurance and fuel costs will be paid by the Company. Audi A-6, BMW Series 500
or equivalent automobile will be provided.
8. TERMINATION OF EMPLOYMENT. In the event your employment is
terminated for any of the reasons set forth under this Paragraph 8, the Company
shall pay to you or your legal representative, estate or heirs, as the case may
be, the following amounts, which are in addition to the amounts stipulated under
any subparagraph of this Paragraph 8:
5
(i) A single lump sum payment, no later than the last day of
your employment, of:
(a) Any accrued but unpaid salary set forth in
▇▇▇▇▇▇▇▇▇ ▇▇ (▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇) hereof, including
salary in respect of any accrued and accumulated vacation, due
to you at the date of such termination; and
(b) Any amounts owing, but not yet paid, pursuant to
Paragraph 4 hereof.
(ii) Any accrued but unpaid incentive compensation as set
forth in Paragraph 2C hereof due to you at the date of such termination
for the fiscal year ending on or immediately prior to the date of such
termination which shall be paid within three (3) months of the end of
such fiscal year.
A. Termination by the Company Without Cause. The Company and
you may, without cause, terminate your employment hereunder with a notice period
of six (6) months to the end of the year. In the event your employment is
terminated under this Paragraph 8A, the Company shall pay to you the following:
(i) A single lump sum payment of any incentive compensation as
set forth in Paragraph 2C hereof earned in the fiscal year of the
termination of your employment, which incentive compensation shall be
determined on the basis of the Company's operations through June 30 of
such fiscal year, and shall be pro-rated through the last day of your
employment, and shall be paid within three (3) months of such June 30;
(ii) To the extent vested, the Monthly Supplemental Retirement
Benefit with the first payment beginning on the first day of the month
immediately succeeding the last day of employment;
(iii) Continuation of medical benefits for a period of twelve
(12) months; and
6
(iv) Executive outplacement services for a period of six (6)
months. The Company shall have no further obligation to you under this
Agreement and you shall have no further obligation to the Company under
this Agreement except as provided in Paragraph 11 and Paragraph 12
hereof.
B. Termination by the Company With Cause. The Company may for
cause terminate your employment hereunder at any time by written notice to you.
In the event your employment is terminated under this Paragraph 8B, you shall
forfeit the incentive compensation set forth in ▇▇▇▇▇▇▇▇▇ ▇▇ hereof for the
fiscal year in which such termination or resignation occurs. In the event your
employment is terminated under this paragraph 8B, the Company shall pay to you,
to the extent vested, the Monthly Supplemental Retirement Benefit as set forth
in Paragraph 2D hereof with the first payment beginning on the first day of the
month immediately succeeding the month in which you attain the age of 55. The
Company shall have no further obligation to you under this Agreement and you
shall have no further obligation to the Company under this Agreement except as
provided in Paragraph 11 and Paragraph 12 hereof. For purposes of this
Agreement, the term "cause" shall mean (1) a failure by you to remedy, within
ten (10) days of the Company's written notice to you, either (a) a continuing
neglect in the performance of your duties under this Agreement, or (b) any
action taken by you that seriously prejudices the interests of the Company, or
(2) your conviction of a felony.
C. Termination by Mutual Consent. You may terminate your
employment hereunder at any time with the written consent of the Company. In the
event your employment is terminated pursuant to this ▇▇▇▇▇▇▇▇▇ ▇▇, the Company
shall pay to you the following:
(i) A single lump sum payment, of any incentive compensation
set forth in paragraph 2C hereof earned in the fiscal year of the
termination of your employment,
7
which incentive compensation shall be determined on the basis of the
Company's operations through June 30 of such fiscal year, and shall be
pro-rated through the last day of your employment, and shall be paid
within three (3) months of such June 30; and
(ii) to the extent vested, the Monthly Supplemental Retirement
Benefit as set forth in Paragraph 2D hereof with the first monthly
payment beginning on the first day of the month immediately succeeding
the last day of employment.
The Company shall have no further obligation to you under this Agreement and you
shall have no further obligation to the Company under this Agreement except as
provided in Paragraph 11 and Paragraph 12 hereof.
D. Disability. If you should suffer a Permanent Disability at
any time, the Company may terminate your employment hereunder upon ten (10) or
more days' prior written notice to you. For purposes of this Agreement, a
"Permanent Disability" shall be deemed to have occurred only when you are
qualified for benefits under the Company's Long Term Disability Insurance
Policy. In the event of the termination of your employment hereunder by reason
of Permanent Disability, the Company shall pay to you or your legal
representative:
(i) In conformity with regular payroll dates for salaried
personnel of the Company, an amount equal to fifty percent (50%) of the
base salary you were receiving at the date of such termination under
Paragraph 2A hereof (as adjusted by Paragraph 2B hereof), payable until
you attain the age of 65 or die, whichever occurs first; provided,
however, that the amount payable under this Paragraph 8D(i) shall be
reduced to the extent of any payments made to you through any
Company-sponsored group long term disability insurance policy (the
"Supplemental LTD Policy") where the premiums for
8
said Supplemental LTD Policy have either been paid by the Company or
reimbursed to you by the Company.
(ii) Any incentive compensation set forth in Paragraph 2C
hereof earned in the fiscal year in which the termination of your
employment occurs, which incentive compensation shall be determined on
the basis of the Company's operations through June 30 of such fiscal
year, and shall be pro-rated through the last day of your employment,
and shall be paid within three (3) months of such June 30;
(iii) Upon your attainment of age 65 or your death, whichever
occurs first, to the extent vested, the Monthly Supplemental Retirement
Benefit as set forth in Paragraph 2D hereof with the first monthly
payment beginning on the first day of the month immediately succeeding
the month in which you shall have attained the age of 65 or died.
The Company shall have no further obligation to you under this Agreement and you
shall have no further obligation to the Company under this Agreement except as
provided in Paragraph 11 and Paragraph 12 hereof.
E. Termination by Death. In the event of the termination by
your employment by reason of death, at any time, the Company shall pay to your
legal representative, estate or heirs the following:
(i) Any incentive compensation set forth in Paragraph 2C
hereof earned in the fiscal year in which the termination of your
employment occurs, which incentive compensation shall be determined on
the basis of the Company's operations through June 30 of such fiscal
year, and shall be pro-rated through the last day of your employment,
and shall be paid within three (3) months of such June 30;
9
(ii) To the extent vested, the Monthly Supplemental Retirement
Benefit as set forth in Paragraph 2D hereof with the first monthly
payment beginning on the first day of the month immediately succeeding
the last day of your employment.
The Company shall have no further obligation to you under this Agreement and you
shall have no further obligation to the Company under this Agreement except as
provided in Paragraph 11 and Paragraph 12 hereof.
F. Termination Upon Expiration of Agreement. If not previously
terminated, this Agreement and your employment with the Company shall be
automatically extended for additional three-year periods, unless and until
either party notifies the other, in writing, one year prior to the expiration of
the then-current term of this Agreement. After the expiration of this Agreement,
the Company shall pay to you the Monthly Supplemental Retirement Benefit as set
forth in Paragraph 2D hereof, with the first monthly payment beginning on the
first day of the month immediately succeeding the month in which you shall have
attained the age of 55.
The Company shall have no further obligation to you under this Agreement and you
shall have no further obligation to the Company under this Agreement except as
provided in Paragraph 11 and Paragraph 12 hereof.
G. Events. If any of the following described events occurs
during the term of your employment hereunder, you may terminate your employment
hereunder by written notice to the Company either prior to, or not more than six
(6) months after the happening of such event. In such event, your employment
hereunder will be terminated effective as of the later of ten (10) days after
the notice or ten (10) days after the event, and the Company shall make to you
the same payments that the Company would have been obligated to make to you
under Paragraph 8A hereof if the Company had terminated your employment
hereunder effective on such date.
10
The events, the occurrence of which shall permit you to terminate your
employment hereunder under this Paragraph 8G, are as follows:
(i) Any merger or consolidation by the Company with or into
any other entity or any sale by the Company of substantially all of its
assets; provided, however, that such event shall not be deemed to have
occurred under this clause if consummation of the transaction would
result in at least fifty (50%) percent of the total voting power
represented by the voting securities of the Company outstanding
immediately after such transaction being beneficially owned by holders
of outstanding voting securities of the Company immediately prior to
the transaction.
(ii) Any change of a majority of the directors of the Company
occurring within any thirteen (13) month period.
(iii) The adoption by the Company of any plan of liquidation
providing for the distribution of all or substantially all of its
assets.
(iv) A material diminution in your duties, or the assignment
to you of duties that are materially inconsistent with your duties or
that materially impair your ability to function as the Vice President
of Operations of the Company if such diminution or assignment has not
been cured within thirty (30) days after written notice thereof has
been given by you to the Company.
9. SOURCE OF PAYMENTS. All payments provided for hereunder shall be
paid from the general funds of the Company. The Company may, but shall not be
required to, make any investment or investments whatsoever, including the
purchase of a life insurance contract or contracts on your life, to provide it
with funds to satisfy its obligations hereunder; provided, however, that neither
you nor your beneficiary or beneficiaries, nor any other person, shall have
11
any right, title, or interest whatsoever in or to any such investment or
contracts. If the Company shall elect to purchase a life insurance contract or
contracts on your life to provide the Company with funds to satisfy its
obligations hereunder, the Company shall at all times be the sole and complete
owner and beneficiary of such contract or contracts, and shall have the
unrestricted right to use all amounts and to exercise all options and privileges
thereunder without the knowledge or consent of you, your beneficiary or
beneficiaries, or any other person, it being expressly agreed that neither you,
any such beneficiary or beneficiaries, nor any other person shall have any
right, title, or interest whatsoever in or to any such contract or contracts
unless expressly provided otherwise in this Agreement.
10. ENFORCEMENT OF RIGHTS. Nothing in this Agreement, and no action
taken pursuant to its terms, shall create or be construed to create a trust or
escrow account of any kind, or a fiduciary relationship between the Company and
you, your beneficiary or beneficiaries, or any other person. You, your
beneficiary or beneficiaries, and any other person or persons claiming a right
to any payments or interests hereunder shall rely solely on the unsecured
promise of the Company, and nothing herein shall be construed to give you, your
beneficiary or beneficiaries, or any other person or persons, any right, title,
interest, or claim in or to any specific asset, fund, reserve, account, or
property of any kind whatsoever owned by the Company or in which it may have any
right, title, or interest now or in the future, but you or your beneficiary or
beneficiaries shall have the right to enforce a claim for benefits hereunder
against the Company in the same manner as any unsecured creditor.
11. INVENTIONS AND CONFIDENTIAL INFORMATION. So long as you shall be
employed by the Company, you agree promptly to make known to the Company the
existence of any and all creations, inventions, discoveries, and improvements
made or conceived by you,
12
either solely or jointly with others, during the term of this Agreement and for
three (3) years thereafter, and to assign to the Company the full exclusive
right to any and all such creations, inventions, discoveries, and improvements
relating to any 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 and all of the foregoing creations, inventions, discoveries and
improvements shall be considered as "work-made-for-hire" and the Company shall
be the owner thereof. You further agree, without charge to the Company but at
its expense, if requested to do so by the Company, to execute, acknowledge, and
deliver all papers, including applications or assignments for patents,
trademarks, and copyrights relating thereto, as may be considered by the Company
to be necessary or desirable to obtain or assign to the Company any and all
patents, trademarks, or copyrights for any and all such creations, inventions,
discoveries, and improvements in any and all countries, and to vest title
thereto in the Company in all such creations, inventions, discoveries, and
improvements as indicated above conceived during your employment by the Company,
and for three (3) years thereafter. You further agree that you will not disclose
to any third person any trade secrets or proprietary information of the Company,
or use any trade secrets or proprietary information of the Company in any
manner, except in the pursuit of your duties as an employee of the Company, and
that you will return to the Company all materials (whether originals or copies)
containing any such trade secrets or proprietary information (in whatever
medium) on termination of your employment by the Company. The obligations set
forth in this Paragraph 11 shall survive the termination of your employment
hereunder.
12. RESTRICTIVE COVENANT. For a period of three (3) years after the
termination of your employment by the Company, you shall not, in any
geographical location in
13
which there is at that time business conducted by the Company which was
conducted by the Company 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, or control
of, any business similar to or competitive with such business conducted by the
Company without the written consent of the Company; provided, however, that you
may have an ownership interest of up to one percent (1%) in any entity,
notwithstanding that such entity is directly competitive with any business
conducted by the Company at the date of such termination.
13. ARBITRATION. Any controversy or claim arising out of or relating to
this Agreement, or the breach or asserted breach thereof, shall be settled by
arbitration to be held in New York, New York in accordance with the rules then
obtaining of the American Arbitration Association, and the judgment upon the
award rendered may be entered in any court having jurisdiction thereof. The
arbitrator shall determine which party shall bear the costs of such arbitration,
including attorneys' fees.
14. NON-ASSIGNABILITY. Your rights and benefits hereunder are personal
to you, and shall not be alienated, voluntarily or involuntarily, assigned or
transferred.
15. BINDING EFFECT. This Agreement shall be binding upon the parties
hereto, and their respective assigns, successors, executors, administrators, and
heirs. In the event the Company becomes a party to any merger, consolidation, or
reorganization, this Agreement shall remain in full force and effect as an
obligation of the Company or its successors in interest. None of the payments
provided for by this Agreement shall be subject to seizure for payment of any
debts or judgments against you or your beneficiary or beneficiaries, nor shall
you or any such beneficiary or beneficiaries have any right to transfer or
encumber any right or benefit
14
hereunder; provided, however, that the undistributed portion of the Aggregate
Supplemental Retirement Benefit shall at all times be subject to set-off by the
Company for debts owed by you to the Company.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement
relating to your employment by the Company. It may only be changed by written
agreement signed by the party against whom enforcement of any waiver, change,
modification, extension, deletion, or revocation is sought.
17. NOTICES. All notices and communications hereunder shall be in
writing, sent by certified or registered mail, return receipt requested, postage
prepaid; by facsimile transmission, time and date of receipt noted thereon; or
by hand-delivery properly receipted. The actual date of receipt as shown by the
receipt therefor shall determine the time at which notice was given. All
payments required hereunder by the Company to you shall be sent postage prepaid,
or, at your election, shall be transferred to you electronically to such bank as
you designate in writing to the Company, including designation of the applicable
electronic address. The foregoing items (other than any electronic transfer to
you) shall be addressed as follows (or to such other address as the Company and
you may designate in writing from time to time):
To you: To the Company:
------- ---------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Technology Company, Inc.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ 12 Commerce Drive
80805 Munich ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Germany
18. LAW TO GOVERN. This Agreement shall be governed by, and construed
and enforced according to, the domestic laws of the State of Connecticut without
giving effect to the principles of conflict of laws.
15
Very truly yours,
▇▇▇▇▇▇▇ TECHNOLOGY COMPANY, INC.
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-----------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Its President and Chief Operating Officer
Duly Authorized
AGREED TO AND ACCEPTED:
/s/▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
16