Exhibit 10.65
MANAGING DIRECTOR
AGREEMENT
BETWEEN
Ciao GmbH ("CIAO" or the "COMPANY"),
AND
Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇ (hereinafter "▇▇. ▇▇▇▇▇▇" or the "MANAGING DIRECTOR"), (the
"AGREEMENT")
1. MANAGEMENT AND REPRESENTATION, DUTIES AND OBLIGATIONS OF THE MANAGING
DIRECTOR
1.1 As of January 31, 2007, ▇▇. ▇▇▇▇▇▇ shall be appointed Managing Director of
Ciao.
Should the comparison shopping business of the Company (the "COMPARISON
BUSINESS"), contrary to present planning, be transferred into a separate
company (the "NEW COMPARISON SHOPPING COMPANY"), ▇▇. ▇▇▇▇▇▇ shall be
appointed as managing director of the New Comparison Shopping Company. At
such time, he would be revoked as managing director of Ciao GmbH and from
such time this Agreement would be continued by the New Comparison Shopping
Company which as from such time would be deemed to be the "Company" within
the meaning of this Agreement. Ciao or, as the case may be, Ciao's sole
shareholder SRVY Acquisition GmbH, shall cause the New Comparison Shopping
Company to assume this Agreement as outlined hereinabove. If this
Agreement should be assumed by the New Comparison Shopping Company, Ciao
GmbH or a successor of Ciao GmbH to which the remaining business is
transferred (such as by a split) shall no longer be liable for fulfilment
of this Agreement.
1.2 ▇▇. ▇▇▇▇▇▇ shall represent and manage the Company in accordance with the
law and the Articles of Association as well as in compliance with the
instructions of the Company's shareholder.
1.3 He shall observe his duties with the due diligence of an orderly and
reputable merchant with due regard to the interests of the Company. He
shall devote all of his business time, ability and energy to the
performance of his duties hereunder, and use his best efforts to advance
the interests and businesses of the Company and its affiliates.
2. COMPENSATION, OTHER BENEFITS
2.1 The Managing Director shall receive a yearly compensation of (euro)
200,000 gross.
2.2 The yearly compensation shall be payable in twelve equal installments at
the end of each calendar month, after deduction of any amounts to be
withheld under law. For any part of a calendar year or calendar month,
payment shall be made only of an amount proportionate to such time.
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2.3 The Company may pay a bonus as detailed in a yearly bonus plan to be
established by the Compensation Committee of Greenfield Online, Inc.
during the first quarter of each calendar year. For the first calendar
year (2007), the bonus plan in ANNEX A shall apply.
2.4 There shall be no separate compensation for overtime, holiday or other
extra work.
3. CONTINUATION OF COMPENSATION IN CASE OF INABILITY TO WORK
3.1 In case of ▇▇. ▇▇▇▇▇▇'▇ temporary inability to work due to illness
(Arbeitsunfahigkeit infolge Krankheit) or other causes which are not the
responsibility (Verschulden) of ▇▇. ▇▇▇▇▇▇, the compensation pursuant to
Section 2 shall be continued for 90 days, provided, however, that any sick
pay or other insurance payments received from a medical or other insurance
shall be deducted. The paying of the compensation shall continue no longer
than until the termination of this Agreement.
3.2 If the Managing Director dies during the term of this Agreement, his
surviving spouse shall be entitled to continued payment of the
compensation pursuant to Section 2 for the month of his death and the
subsequent three months. Should the Managing Director's spouse already
have deceased on the due date, his dependent children shall have such
claim.
3.3 ▇▇. ▇▇▇▇▇▇ hereby assigns to the Company his claims for damages which he
may have against third parties who have caused his inability to work to
the extent the Company makes payments under the continuation rule of
Section 3.1. He undertakes to provide to the Company any information which
it may require in connection with the prosecution of such claims and to
support it in pursuing them.
4. OTHER BENEFITS, VACATION
4.1 The Company shall reimburse customary expenses including reasonable travel
and hospitality expenses which the Managing Director may have incurred in
connection with his duties as managing director upon submission of
suitable receipts.
4.2 The Company shall continue to lease for ▇▇. ▇▇▇▇▇▇ a company car of the
type BMW 5 Series or another model, the costs of which, as a new car, are
not higher than (euro) 65,000 net and the monthly lease payments do not
exceed (euro)1,400 net. For avoidance of doubt, ▇▇. ▇▇▇▇▇▇ shall continue
to use his current company car until the expiration of the existing lease.
The company car may also be used privately. The Company shall bear any
costs in relation to the company car such as insurances, taxes, fuel,
inspections and the like, except for private taxes to be borne by the
Managing Director in connection with the usage of the company car. The
Managing Director shall inform the Company of any event affecting the
vehicle immediately and, at the latest, within 48 hours, so that the
Company may take all necessary steps. The Managing Director shall maintain
the vehicle in good condition as regards its structure and bodywork. Upon
termination of this Agreement and upon a releasing (Freistellung) from his
obligation to work following the giving of termination notice (Kundigung)
the Managing Director shall within 30 days of receipt of such
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notice immediately return the vehicle to the Company and hand over the
papers and keys and there shall be no claim for compensation of the loss
of private use.
4.3 The Managing Director shall be entitled to an annual vacation of 25
working days (calendar days without Saturdays, Sundays and public
holidays). The intended vacation period shall be determined upon
consultation with the shareholder. If the Managing Director is prevented
from taking vacation in any one calendar year for business or personal
reasons, he shall continue to have a claim for such vacation not taken
until 30 June of the following calendar year. There shall be no
compensation for vacation which has not been taken in time.
4.4 The Company shall take out and maintain at its expense accident insurance
for the benefit of the Managing Director for the term of this Agreement,
for an insured sum of (euro) 500,000 in the event of death and (euro)
300,000 in the event of disablement (Invaliditat). The Managing Director
or, as the case may be, his heirs shall be directly entitled to the
insurance sum, unless the Managing Director has appointed to the Company a
different beneficiary.
4.5 The Company shall take out and maintain at its expense D&O-insurance for
the benefit of the Managing Director at the terms usual within the
Greenfield Group or procure that any such insurance cover available for
the entire Greenfield Group is extended to ▇▇. ▇▇▇▇▇▇.
5. TERM, TERMINATION
5.1 This Agreement shall be entered into for a fixed term starting from
January 31, 2007 and ending on December 31, 2009. During such term, this
Agreement cannot be terminated, subject to Sections 5.2 and 5.3 below.
From December 31, 2009, the Agreement shall be extended automatically for
an indefinite period and may be terminated by either party by giving at
least 12 months' notice as of the end of a calendar month.
5.2 ▇▇. ▇▇▇▇▇▇ may terminate this Agreement for Special Reason, giving 30 days
notice. For the purposes of this Section 5.2, "SPECIAL REASON" shall mean
any one of the following: (i) a Material Diminution of ▇▇. ▇▇▇▇▇▇'▇ title
and status as set forth in this Agreement or in his corresponding
appointment as one of the Company's Managing Directors, or assignment to
duties and responsibilities inconsistent with those set forth in this
Agreement; or (ii) the relocation of ▇▇. ▇▇▇▇▇▇'▇ principal place of
business to any place greater than fifty kilometres (km) from his current
principal location (Munich). Notwithstanding the foregoing, ▇▇. ▇▇▇▇▇▇
shall only be entitled to exercise the right to terminate this Agreement
for Special Reason if the Company fails to cure the event constituting
Special Reason as described in clauses (i) and (ii) of this Section 5.2
within 30 days after receipt from ▇▇. ▇▇▇▇▇▇ of written notice of the
event which constitutes Special Reason; and Special Reason under clauses
(i) and (ii) above shall cease to exist for an event on the 60th day
following ▇▇. ▇▇▇▇▇▇'▇ actual knowledge (Kenntnis) thereof, unless ▇▇.
▇▇▇▇▇▇ has given the Company written notice thereof prior to such date.
For purposes of clause (i) above, "MATERIAL DIMINUTION" shall be measured
by comparing the nature of ▇▇. ▇▇▇▇▇▇'▇ duties and the extent of
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his management responsibility rather than on the basis of ▇▇. ▇▇▇▇▇▇'▇
title or to whom he reports following such event.
5.3 An extraordinary termination for good cause without the necessity of a
prior notice (au(beta)erordentliche Kundigung aus wichtigen ▇▇▇▇▇) by
either party is possible at any time.
5.4 Any termination notice shall be given in writing. Notice given of a
revocation (Abberufung) of ▇▇. ▇▇▇▇▇▇'▇ position as managing director of
the Company shall be deemed to be a notice of termination of the Agreement
as of the next possible date as per Section 5.1 hereinabove.
5.5 If a termination notice has been given by either Party pursuant to section
5.1 or 5.2, the Company shall be entitled to release (freistellen) the
Managing Director with immediate effect from his obligation to work.
During any such period of release, all provisions of this Agreement shall
continue to apply and ▇▇. ▇▇▇▇▇▇'▇ contractual remuneration shall be
continued but no bonus as per Section 2.3 shall be due relating to the
time of such release. For the time up to such release, the bonus shall be
due pro rata temporis.
5.6 ▇▇. ▇▇▇▇▇▇ shall not during the employment period engage in any other
activity which would interfere with the performance of his services
hereunder. He shall not work for, support or hold an interest, directly or
indirectly, in a company or business competing with the Company or an
affiliate of the Company. The Managing Director does not violate the
provisions of this section restricting his ownership in competing
companies or businesses provided he holds less than 1% of any such
company's publicly traded share capital.
6. TERMINATION COMPENSATION (ABFINDUNG)
If ▇▇. ▇▇▇▇▇▇ terminates this Agreement for a Special Reason as defined in
Section 5.2, he shall upon his demand continue to receive the base monthly
compensation resulting from Section 2.1 until such time when this
Agreement would have been terminated as of the next possible date upon
ordinary notice of termination pursuant to Section 5.1. For the time
period for which ▇▇. ▇▇▇▇▇▇ makes such demand, he shall continue to comply
with the non-compete obligation in Section 5.6.
7. SPECIAL BONUS IN THE EVENT OF A SALE OF THE COMPANY
By separate agreement in the form of ANNEX B, the Company, SRVY
Acquisition GmbH and Greenfield Online, Inc. will offer ▇▇. ▇▇▇▇▇▇ the
possibility to earn a special bonus under the conditions named in the
event of a Sale (as that term is defined in Annex B). Such special bonus
(as defined in Annex B), if any, shall be paid over and above the monies
and benefits provided for in this Agreement.
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8. WORK RESULTS
For all work results of ▇▇. ▇▇▇▇▇▇, including but not limited to
inventions and work results protected by copyright or other intellectual
property rights, ▇▇. ▇▇▇▇▇▇ hereby grants to the Company a right of use
which is exclusive and unlimited in time, scope and space. No compensation
shall be due for such granting in addition to the compensation provided
for specifically in this Agreement.
9. CONFIDENTIALITY, BUSINESS DOCUMENTS
9.1 ▇▇. ▇▇▇▇▇▇ shall keep strictly confidential all know-how and experience
acquired during his work and all business information which is
confidential by nature. This shall be valid for confidential information
of the Company and of all affiliated companies and for those of business
partners. Such information may be used only in the interest of the Company
and may not be disclosed unduly to any third party. This obligation
continues even after termination of the employment.
9.2 All notes, business documents, copies, data and software which have been
given to ▇▇. ▇▇▇▇▇▇ or have been prepared by him, shall remain or become
the property of the Company. This shall apply regardless as to the form in
which they are (such as on diskettes or other data storage devices). They
shall be returned at the latest at the termination of this Agreement and
upon request at any time prior thereto. ▇▇. ▇▇▇▇▇▇ shall keep such
documents and property separate from private property and shall keep it
protected against improper inspection by third parties.
10. FINAL CLAUSES
10.1 If any provision of this Agreement is or shall become invalid, such
invalidity shall not effect the other clauses. The invalid clause shall be
replaced by such valid provision which comes closest to the Parties'
economic intentions at the time when this Agreement was signed.
10.2 Amendments and supplements to this Agreement including this written form
requirement shall not be effective unless made in writing.
10.3 All rights resulting from this Agreement and connected therewith shall be
extinguished (verfallen) if they have not been claimed within a period of
six months after they have become due (fallig werden). Such claims further
extinguish if they have not been claimed in court within two months of
having been claimed in writing if the respective creditor rejects the
claim or does not react. This shall not apply if the creditor of the
respective claim, through no fault of his own, had no knowledge of the
facts constituting the claim.
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10.4 This Agreement shall be subject to German law (provided that the agreement
in Annex B shall be subject to the law of the State of Delware, USA as
provided therein).
Wilton, Connecticut, USA, January 31, 2007 Munich, January 31, 2007
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Ciao GmbH ▇▇▇▇▇▇ ▇▇▇▇▇▇
By: Its sole sherholder SRVY Acquisition
GmbH, by ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Managing
Director (Geshaftsfuhrer)