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EXHIBIT 10.4
CONTRACT OF EMPLOYMENT
THE UNDERSIGNED:
1. Autobytel.Europe Holdings B.V. established and with registered offices
in Almere, the Netherlands at Alnovum - ▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ ▇-▇▇,
▇▇▇▇ ▇▇, according to the Articles of Association, duly represented by
Mr. J. Knottenbelt in his capacity as Interim Chief Executive Officer,
hereinafter referred to as "the employer"
and
2. Mr. M.J.L.M. Rens, born on February 4th 1947 in Maastricht, currently
living in the Netherlands at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇,
hereinafter referred to as "the employee",
HAVE AGREED THE FOLLOWING:
1. POSITION
1.1. The employee shall be employed in the position of Chief
Executive Officer. The employee shall apply his mind and skill
to the best of his ability.
1.2. The employee's place of work shall be based in Almere, the
Netherlands at Alnovum - ▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ ▇-▇▇, ▇▇▇▇ ▇▇.
1.3. The employee agrees to accept another place of work, within a
reasonable distance from the address in subsection 1.2.
1.4. The employee shall not fulfil any remunerative ancillary
functions for or on behalf of another, nor in any other way
conduct any ancillary remunerative activities, without prior
written consent of the employer.
1.5. The employee shall not fulfil any ancillary non-remunerative
functions, which are business related, for or on behalf of
another, nor in any other way conduct any ancillary
non-remunerative business related activities, without prior
written consent of the employer.
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2. DURATION
2.1. The term of service commences on October 17th, 2000 and shall
continue for an indeterminate period. The contract of employment
shall terminate in any event by operation of law on the last day
of the calendar month in which the employee attains the
pensionable age of 65 or the age as stated in the company's
pension scheme.
2.2. Both parties are entitled to terminate the contract by means of
an interim notice at the end of a calendar month, taking into
account, with reference to this section exclusively, a notice
period of 1,5 month for the employee and 3 months for the
employer in accordance with the Dutch Labour Law.
3. HOURS OF WORK
This employment agreement concerns full time employment, the normal
hours being a total of 40 hours worked, between 08.00 AM and 17.30 PM
Monday to Friday. The salary as stated under subsection 4.1. of this
agreement reflects the fact that from time to time the employer may ask
the employee to work in excess of these hours.
4. SALARY AND HOLIDAY ALLOWANCE
4.1. Gross salary shall amount to USD 400,000 per year. This salary
will be divided in twelve (12) equal monthly installments. Each
installment shall be paid on the last day of the month at the
latest, net of statutory and voluntary deductions into a bank or
giro account to be designated by the employee.
4.2. The salary stated in 4.1 above includes any allowance for
overtime and hours worked on Saturdays, Sundays and public
holidays.
4.3. The employee is entitled to a yearly bonus based on his
professional achievements. The bonus is maximised to 25% of the
annual fixed salary at 100% achievement of set goals. The annual
fixed salary equals the amount mentioned in section 4.1.
The bonus is paid out gross to the employee. The objectives will
be determined at the start of the employment. In case duties as
mentioned under subsection 1.1. change, new objectives can be
applicable to the employee.
For the initial period of employment, ending at December 31,
2002, the bonus as mentioned above will not be based on set
goals and individual performance. The bonus associated with this
period, however, will be fixed at USD 100,000 per annum. The
bonus is paid out pro rata in accordance with the actual
employment period.
4.4. The employee shall be entitled to a holiday allowance of 8%. The
holiday allowance is included in the gross annual salary as
mentioned in section
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4.1. If the employment commences or terminates in the course of
a year, the holiday allowance shall be calculated
proportionately.
4.5. The salary and other allowances mentioned in this article will
be reviewed annually in the month of January. The first review
will be in January 2002.
5. STOCK OPTIONS
The entitlement to stock options will be determined in a separate
agreement.
6. EXPENSE ALLOWANCES
6.1. The employer will reimburse the employee all authorised
reasonable business expenses incurred in the execution of his
job duties against submitted receipts by the employee.
6.2. The employee will be entitled to a fixed net amount of EUR 340
for representation costs and small expenditures.
6.3. The employer will reimburse the employee for all reasonable
business telephone costs (telephone, fax, ISDN incurred while
using his private phone).
In addition, the employer will provide the employee with a
mobile phone for business use only.
7. ILLNESS AND DISABLEMENT
7.1. If the employee is unable to attend work due to illness, he or
his representative shall notify the employer preferably on the
first day of illness.
7.2. The employee shall ensure that he can be contacted by the
employer as much as possible during his illness.
7.3. In the event of disability or illness of the employee, the
employer shall continue to pay the employee's salary, as set out
in subsection 4.1. for 100%, during the first year of his
disability or illness.
8. INSURANCES
8.1. In case the employee will no longer be compulsory insured
according to the compulsory Health Insurance Act, the employer
shall pay 50% of the health insurance premium, but this amount
shall never exceed the employer's contribution to the compulsory
health insurance premium payable by the employer. The employer's
contribution shall be subject to wage tax. The employee's
contribution shall be withheld from the monthly salary.
8.2. The employee will be provided with a Business Travel Insurance
on a world-wide basis. The premium will be paid by the employer.
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8.3. The employee will be enrolled in the company's WAO-gap
insurance. The benefit of the insurance is subject to the terms
and conditions of the insurance policy. The premium for this
insurance is paid by employer and employee on a 50:50 basis.
8.4. The employer will take out a WAO-excedent insurance on behalf of
the employee. The insurance covers for 70% of the last earned
salary as stated in section 4.1. in case of serious
illness/disability. The benefit of the insurance is subject to
the terms and conditions of the insurance policy.
8.5. The employee will be entitled to participate in the company
pension scheme. The terms and conditions of the company pension
scheme are set out in a separate pension letter.
9. OTHER BENEFITS
9.1. In the event of this agreement ending as a result of long-term
disability of the employee due to an accident, the employee will
receive a one-time payment up to four times the annual fixed
salary as stated under section 4.1.
9.2. In the event of death of the employee due to an accident, the
employer will pay a one-time payment up to twice the annual
fixed salary as mentioned in section 4.1.
9.3. The level of the benefits mentioned in subsections 9.1. and 9.2.
are subject to the terms and conditions of the company provided
accident insurance policy.
9.4. The employee will be entitled to a company sponsored lease car.
The monthly lease price of the car will be based on the car the
employee had in his employment immediately prior to this
employment. The monthly lease price will be inclusive of fuel
and exclusive of VAT.
10. HOLIDAY YEAR / DAY'S LEAVE
10.1. The holiday year is the period in which the number of days'
leave is calculated. The holiday year coincides with the
calendar year.
10.2. The employee is entitled to 25 days' leave in each holiday year,
such to be established by the employer in consultation with the
employee. This is in addition to the employees entitlement to
all statutory or public holidays in the country of his
employment.
10.3. An employee who has not been employed for the entire holiday
year shall be entitled to 1/12 of the annual leave for each full
month of employment.
10.4. The employee undertakes to take all days' leave accruing to him
before the termination of the contract of employment, unless
such is not possible because of the nature of the work or other
circumstances. In this case, the employee and the employer shall
come to an agreement regarding payment in lieu.
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11. DIRECTORS' & OFFICERS' LIABILITY INSURANCE
The employer will supply the employee with a Directors' & Officers'
Liability insurance. The benefit of the D&O Liability insurance is
subject to the terms and conditions of the insurance policy.
12. CONFIDENTIALITY
12.1. The employee undertakes, both during and after the termination
of this contract of employment, not to disclose any information
about the employer or its business or one or more affiliated
companies or their business which he knows or suspects could be
detrimental to the employer and/or those affiliated companies.
This obligation also applies to information on clients or other
business contacts. The employee is obliged to return all
documentation belonging to the employer which he has in his
possession together with his own notes and photocopies.
12.2. Any infringement of this clause during the employment shall
constitute a pressing reason to terminate the contract of
employment with immediate effect, without prejudice to the right
of the employer to demand full compensation.
12.3. Any infringement of this clause following termination of the
employment shall cause the employee to pay a penalty of EUR
11,345 on demand, without prejudice to the right of the employer
to demand full compensation instead of the penalty.
13. INTELLECTUAL PROPERTY RIGHTS
The Employee shall transfer to the Employer and/or cooperate in the
transfer to the Employer on the first request of the Employer, all
(future) inventions made by him and/or any intellectual- and industrial
property rights that may come into being by his actions and/or
activities, during this agreement or which are made or will come into
being after this agreement has terminated but can be considered to
follow from the existence of this agreement. Parties agree that any
compensation that can follow from such an invention or property rights
is deemed to be included in the remuneration for the services rendered
in the course of this agreement.
14. PROPERTY OF THE EMPLOYER
14.1. All material made available to the employee by the employer is
and shall remain the property of the employer. It is prohibited
to use such material for private purposes without the express
permission of the employer.
14.2. The employee shall return all property of the employer to the
employer without being asked immediately upon the termination of
the employment or earlier if requested by the employer.
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14.3. In case of suspension and termination of employment, regardless
of the manner in which or the reason why employment is being
terminated, the employee will put at the disposal of the
employer, upon its first request, all properties of the employer
over which he/she has control, as well as all documents and
copies of documents that in the broadest possible sense in any
way relates to the employer and/or to associated companies, its
clients and other business connections.
15. COMPENSATION FOR DAMAGES
Contrary to the provisions of section 6:170 subsection 3 and section
7:661 Dutch Civil Code, the employee is, insofar as and to the extent to
which he is insured for this risk, liable towards the employer for
damages that the employee, in carrying out the agreement, causes to the
employer or a third party to whom the employer is liable for such
damages, even if such damage was not caused intentionally or due to
gross negligence on the part of the employee.
16. RESTRAINT OF TRADE
16.1. The employee is forbidden, without prior written consent of the
employer, both during the period of his term of service, and
during a period of 2 years after the conclusion of his term of
service, either directly or indirectly, for himself or for
others, for remuneration or gratuitously, to be employed in any
way whatsoever, or to have an interest in any business
detrimentally competitive to the employer or legal persons and
companies which belong to the group of which the employer is a
part. This limitation applies equally to new activities of the
employer which have commenced after the period during which this
employment agreement is in force, in so far as the employee was
involved in such activities.
16.2. If the employee acts contrary to the provisions of subsection 1
of this section, he shall without notice forfeit to the
employer, an immediate fine of EUR 11,345 increased by an amount
of EUR 113 per day that the transgression endures beyond the
first day of the transgression, such liability not infringing
upon the right of the employer, to claim damages in full in lieu
of the fine. In addition to payment of a fine and/or damages due
to a past breach, the employer is also entitled to claim
compliance in the future.
16.3. The employee is equally obliged to comply with the provisions of
subsection 1 subject to the sanction set out in subsection 2,
with respect to a future employer, whether or not this concerns
the transfer of a business undertaking in terms of section 7:662
and following Dutch Civil Code.
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17. SEVERANCE PAYMENTS ON TERMINATION
17.1. Subject to the employee agreeing at the time to waive any claims
he may have against the employer, the employer agrees to make
the following payments in the circumstances described below.
17.2. If the employer terminates this agreement due to other reasons
than the malfunctioning of the employee as mentioned in
subsection 17.3, the employer will supply the employee with a
severance pay equal to one year's salary as stated in subsection
4.1. This amount will be paid out gross to the employee through
his final pay slip. During the period of employment the employer
will keep the above mentioned severance amount in escrow.
17.3. If the termination of the employment agreement by the employer
is the result of the malfunctioning of the employee (being gross
negligence or willful misconduct), the employee is not entitled
to any severance pay.
17.4. If the employee voluntarily terminates the employment agreement,
the employer will not supply the employee with a severance pay.
18. GIFTS
18.1. With regard to the fulfilling of his duties, the employee is
forbidden, without the prior consent of the employer, to accept
from third parties, directly or indirectly in any way
whatsoever, any commission, concession or compensation in any
form whatsoever, or to accept or insist on any gifts.
18.2. The provisions of subsection 18.1. do not apply to gifts from
clients of a nominal value.
18.3. The employee is obliged, if he has acted contrary to the
provisions of the preceding subsections, to pay to the employer
the value of the commissions, concessions, compensations and/or
gifts referred to in subsection 18.1, such payment not
infringing upon the right of the employer to claim damages in
full lieu thereof.
19. EMPLOYEE'S OBLIGATIONS
19.1. The employee undertakes to perform all work for the employer to
the best of his ability and in line with the objectives set by
the employer.
19.2. Objectives can be re-negotiated by the employee and the
management subject to the employer's approval.
19.3. The employee undertakes to perform his work in accordance with
the instructions given to him by the employer.
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20. EMPLOYER'S OBLIGATIONS
The employer shall act as a good employer according to reasonableness
and fairness. The employer undertakes to perform reasonable actions
within his power in order to avoid damage to the employees.
21. OTHER
21.1. Previous oral and/or written contracts of employment and/or
agreements on fringe benefits and expense allowances shall be
superseded upon signature of this contract.
21.2. This agreement shall be governed by and interpreted in
accordance with the laws of The Netherlands.
21.3. All controversies relating to and arising from this agreement
shall exclusively be submitted to the competent court in The
Netherlands.
Thus drawn up and signed in duplicate in Amsterdam on September 1st 2000
/s/ ▇▇▇ ▇▇▇▇ /s/ Joop Knottenbelt
--------------------- -------------------------------
Employee Autobytel.Europe Holdings B.V.
Mr. M.J.L.M. Rens by Mr. J. Knottenbelt
title Interim Chief Executive Officer
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ADDENDUM TO THE CONTRACT OF EMPLOYMENT
THE UNDERSIGNED:
1. Autobytel.Europe Holdings B.V. established and with registered offices
in Almere, the Netherlands at Alnovum -- ▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ ▇-▇▇,
▇▇▇▇ ▇▇, according to the Articles of Association, duly represented by
Mr. J. Knottenbelt in his capacity as Interim Chief Executive Officer,
hereinafter referred to as "the employer"
and
2. Mr. M.J.L.M. Rens, born on February 4th 1947 in Maastricht, currently
living in the Netherlands at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇,
hereinafter referred to as "the employee",
HAVE AGREED THE FOLLOWING:
1. EXCHANGE RATE USD TO EUR
Considering the fact that the employer will be paying the employee in
Euro's, parties have agreed as follows:
1.1. At the commencement of the employment as stated under section
2.1. of the employment agreement, all USD denominated amounts
will be converted into Euro's. As of this date, payments will be
in Euro's.
1.2. The exchange rate of the USD to the EUR will be fixed at the
exchange rate measured at the moment of signature of the
contract of employment.
2. OTHER
2.1. This agreement forms an inseparable part of the contract of
employment signed on September 1st 2000.
2.2. This agreement shall be governed by and interpreted in
accordance with the laws of The Netherlands.
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2.3. All controversies relating to and arising from this agreement
shall exclusively be submitted to the competent court in The
Netherlands, unless other arbitration rules are agreed upon by
the parties in writing.
Thus drawn up and signed in duplicate in Amsterdam on September 1st 2000
/s/ ▇▇▇ ▇▇▇▇ /s/ Joop Knottenbelt
----------------------------- ------------------------------------
Employee Autobytel.Europe Holdings B.V.
Mr. M.J.L.M. Rens by Mr. J. Knottenbelt
title Interim Chief Executive Officer