Employment Agreement - GMAI Auctentia Central de Compras SL and Ramon Egurbide Urigoitia
[Translated from Spanish]
Madrid, May 17, 2005
MEETING BETWEEN
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PARTY OF THE FIRST PART: Mr. RAMON EGURBIDE URIGOITIA, of legal age, with
National Identity Card number 14824129-P, and residing at Calle Iparraguirre no.
34, Bilbao.
PARTY OF THE SECOND PART: Mr. CARLOS DE FIGUEIREDO ESCRIBA, with National
Identity Card number 50.432.216-R, of legal age, residing at Calle Tellez no.
30, Madrid, in the name of and in representation as proxy of GMAI AUCTENTIA
CENTRAL DE COMPRAS, S.L., with Tax ID number B-83406462.
STATE
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1.- That on February 1, 2005, the worker Mr. RAMON EGURBIDE URIGOITIA and the
firm GMAI AUCTENTIA CENTRAL DE COMPRAS, S.L. agreed to the substitution of the
labor relationship of an indefinite nature which existed between the worker and
the firm AFINSA BIENES TANGIBLES, S.A. on the basis of the contract in force at
that time.
2.- As a consequence, Mr. RAMON EGURBIDE URIGOITIA and GMAI AUCTENTIA CENTRAL DE
COMPRAS, S.L. have a labor relationship since February 1, 2005 as GMAI AUCTENTIA
CENTRAL DE COMPRAS, S.L., has subrogated all the rights and obligations and
Social Security of AFINSA BIENES TANGIBLES, S.A.
3.- That at the present time, both parties have considered establishing a new
compensation for the services provided by Mr. RAMON EGURBIDE URIGOITIA, as well
as including certain stipulations in the contract, whereby both parties,
recognizing themselves as having sufficient and reciprocal legal ability to
commit themselves,
AGREE
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FIRST.- That the compensation agreed upon for the services provided by Mr. RAMON
EGURBIDE URIGOITIA (hereinafter, Mr. RAMON EGURBIDE), starting on the date of
February 1, 2005, until the expiration of his contract, shall be the following:
FIRST .- COMPENSATION:
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A) CENTRAL DE COMPRAS shall pay Mr. RAMON EGURBIDE a salary of 200,000
Euro annually during the period from February 1, 2005 to November
30, 2005. This salary shall be increased, up to the amount of
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215,000 Euro for the period including December 1, 2005, until
November 30, 2006, and up to the amount of 230,000 Euro, for the
period including from December 1, 2006 for the remainder of the
duration of this contract.
B) Relative to each fiscal year, CENTRAL DE COMPRAS shall pay Mr. RAMON
EGURBIDE a cash bonus equal to 0.5 % of the Audited Profit before
Taxes of the American company GMAI for said fiscal year (company
belonging to the GMAI-Auctentia group), up to a maximum bonus of
50,000 Euro. In the event that this contract should expire prior to
the end of a fiscal year, Mr. RAMON EGURBIDE shall have the right to
receive a cash bonus equal to the sum of 0.5% of GMAI's Audited
Profit before Taxes for said fiscal year (up to a maximum of 50,000
Euro), proportionate to the actual work during the fiscal year then
in force. The term "Audited Profit before Taxes" means GMAI's net
income for the fiscal year before taxes on income, determined in
accordance with generally accepted accounting principles, applied as
determined by GMAI's independent auditors.
The Bonus shall be immediately payable after GMAI's independent
auditors have determined the amount of the Audited Profit before
Taxes as demonstrated by a report issued by said auditors, but in no
event later than two and a half months after the end of the calendar
year in which said fiscal year ends. In the event that Mr. RAMON
EGURBIDE's work should end prior to the end of a fiscal year, a
pro-rated Bonus shall be paid no later than a month and a half after
the end of the calendar year in which this termination occurs. In
the event that the auditors' reports should not be available at the
time that the Bonus is to be paid in virtue of this stipulation, the
Bonus shall be calculated by CENTRAL DE COMPRAS in good faith basing
itself on the information then available. For the purposes of
determining the amount of the Bonus, the Audited Income before Taxes
shall first be converted into Euro, using the type of exchange rate
applicable on the business day immediately prior to the date of the
report issued by the auditors.
SECOND.- Both parties agree, that the set of stipulations which are
reported hereafter are added to the existing labor contract between
the parties:
SECOND.-REIMBURSEMENT OF EXPENSES.
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Upon delivery by RAMON EGURBIDE of receipts in accordance with CENTRAL
DE COMPRAS' usual procedures, CENTRAL DE COMPRAS shall reimburse, with
reasonable speed, RAMON EGURBIDE for all the reasonable and necessary
expenses for trips, business entertainment, and other business expenses
that RAMON EGURBIDE may have incurred relative to the fulfillment of his
obligations in virtue of this Contract.
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THIRD.- CONFIDENTIAL INFORMATION.
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"A.- Mr. RAMON EGURBIDE recognizes that during the course of his work
with CENTRAL DE COMPRAS he shall necessarily have access to, and use,
"Confidential Information" (which shall be determined later) and CENTRAL
DE COMPRAS' confidential records. Mr. RAMON EGURBIDE, during the
duration of this contract or at any later time, directly or indirectly,
shall not use for his own purposes or for the benefit of any person or
entity other than CENTRAL DE COMPRAS, or otherwise disclose, any
"confidential information" to any person or entity, except if the
disclosure has been authorized in writing by CENTRAL DE COMPRAS or is
required by law.
Mr. RAMON EGURBIDE understands that the term "confidential information"
includes, but is not limited to, the following:
a) the name and address of any CENTRAL DE COMPRAS client, vendor
or any information referring to the transactions or relations
of any CENTRAL DE COMPRAS client, vendor, or any partner,
advisors, executives, or agents of CENTRAL DE COMPRAS.
b) any information referring to any product, technology, or
process employed by CENTRAL DE COMPRAS but not generally known
to its clients, vendors, or competitors, either in development
or under testing by CENTRAL DE COMPRAS but not offered at that
time generally to clients or vendors;
c) any information referring to CENTRAL DE COMPRAS' software,
information systems, price-setting or marketing methods, sales
margins, production costs, materials costs, capital structure,
business results, loan agreements, or business plans;
d) any information that is generally considered as confidential
or property of any business line initiated by CENTRAL DE
COMPRAS.
e) any CENTRAL DE COMPRAS business plans, budgets, advertising,
or marketing plans whatsoever.
f) any information contained in any of the written or oral
policies and procedures and manuals;
g) any information that belongs to CENTRAL DE COMPRAS' clients,
vendors, or any other person or entity that CENTRAL DE COMPRAS
has agreed to keep confidential;
h) any inventions, innovations, or improvements covered by this
Contract;
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i) information on CENTRAL DE COMPRAS' salaries, personnel, and
work.
j) all materials relative to, or belonging to any of the
foregoing, whether in a handwritten, printed, graphic, video,
audio, electronic, or other type of format.
B).- Mr. RAMON EGURBIDE recognizes that information that is not new or
registered as copyright or patented may however be "confidential
information."
C).- The term "confidential information" does not include information
known to Mr. RAMON EGURBIDE prior to his work for CENTRAL DE COMPRAS or
information generally available and known to the public or information
that is or becomes available to Mr. RAMON EGURBIDE on a non-confidential
basis from a source other than CENTRAL DE COMPRAS or its advisors,
executives, employees, or agents.
D) All "confidential information" is and shall be the exclusive property
of CENTRAL DE COMPRAS during the period of the duration of this contract
and afterwards. After the contract's termination for any reason, Mr.
RAMON EGURBIDE may not retain any of CENTRAL DE COMPRAS' "confidential
information" and shall quickly return any of CENTRAL DE COMPRAS'
"confidential information" in his possession to CENTRAL DE COMPRAS.
E) All inventions, innovations, or improvements (including policies,
processes, upgrades, software, ideas, and discoveries, whether they be
patents, copyrights, business trademarks, service marks, or others)
conceived or produced by Mr. RAMON EGURBIDE, whether exclusively or
jointly with others, in the course of his work, and any derivates
whatsoever of any of said inventions, innovations, or improvements
belong to CENTRAL DE COMPRAS. Mr. RAMON EGURBIDE shall immediately
disclose in writing to the CENTRAL DE COMPRAS said inventions,
innovations, or improvements in their entirety, and shall undertake all
actions reasonably solicited by CENTRAL DE COMPRAS to establish and
confirm ownership by CENTRAL DE COMPRAS, including, but not limited to,
cooperation and assistance provided to CENTRAL DE COMPRAS to obtain
patents, copyrights, commercial trademarks, or service marks for CENTRAL
DE COMPRAS in the United States and in foreign countries. Mr. RAMON
EGURBIDE agrees that any request submitted by Mr. RAMON EGURBIDE in the
period of one year after the termination of his work in virtue of this
contract, shall be assumed to be an invention that was executed during
his work, except if he can provide evidence to the contrary to the
satisfaction of CENTRAL DE COMPRAS.
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FOURTH.- NOTICES.
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All notices or other communications required or contemplated through
this Contract must be in writing and be sent by one of the following
methods: (1) personal delivery, in which case delivery shall be
considered to be the day of delivery; (2) certified or registered mail,
prepaid mail, with acknowledgment of receipt requested, in which case
the delivery date shall be considered to be the date in which it is
officially registered as having been delivered to the addressee
foreseen; or (3) next-day delivery by a recognized courier service, in
which case the delivery shall be considered to have been the day of its
receipt.
FIFTH.- NON-COMPETE.
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Mr. RAMON EGURBIDE recognizes the highly competitive nature of CENTRAL
DE COMPRAS' business and that access to CENTRAL DE COMPRAS' confidential
records and "confidential information" makes him special and unique
within the CENTRAL DE COMPRAS business sector. Mr. RAMON EGURBIDE
recalls that during (i) the duration of this contract and (ii) the
period starting on the work termination date ending one year after the
contract's termination date (jointly, the "Coverage Time"), Mr. RAMON
EGURBIDE, directly or indirectly, in his own name and in the name of any
person or entity (i) shall not possess, operate, exploit, join with,
participate in, invest in, or he shall be related or otherwise
associated to, including as an executive, advisor, employee, independent
contractor, shareholder, member, partner, consultant, advisor, agent,
owner, "trustee," or investor, of any business located in the United
States or the European Community which, directly or indirectly, commits
him to a "Competitive Business"; (ii) shall not solicit, do business
with, or shall not attempt to, or seek to do business which constitutes
or is related to a "Competitive Business" with any person or entity who
may have been a client, vendor, licensee, or strategic ally of CENTRAL
DE COMPRAS during the previous two-year period; or (iii) shall not
persuade or seek to persuade any client, supplier, vendor, licensee, or
strategic ally to stop doing business or reduce the amount of business
usually carried out or contemplate doing with CENTRAL DE COMPRAS;
however, it is understood, that the ownership of 2% or less of the
shares or other instruments of a company, whose shares are listed and/or
negotiated on a stock exchange or its equivalent, including the Nasdaq
Stock Market, shall not constitute non-fulfillment, as long as Mr. RAMON
EGURBIDE does not have the power to control or manage the administration
of, and is not otherwise associated with, said company. "Competitive
Business" shall mean any business or entity involved in any business
initiated by CENTRAL DE COMPRAS during the contract.
Mr. RAMON EGURBIDE recalls that during the "Coverage Period" directly or
indirectly, (i) he shall not solicit, develop, or shall not attempt to
solicit or develop any of the employees, agents, consultants, or
representatives
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of CENTRAL DE COMPRAS to terminate their relationship with CENTRAL DE
COMPRAS; or (ii) shall not solicit, encourage, contract, or attempt to
solicit or encourage any employees, agents, consultants, or
representatives of CENTRAL DE COMPRAS to convert themselves into
employees, agents, representatives, or consultants of any other person
or entity.
SIXTH.- EXECUTABILITY.
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Mr. RAMON EGURBIDE recognizes that, in virtue of his position, his
services, and access to, and use of, confidential records and owner's
information, any violation on his part of any of these commitments would
cause immediate, material, and irreparable damage, which would not have
any remedy to CENTRAL DE COMPRAS. Consequently, CENTRAL DE COMPRAS
reserves itself the right to undertake pertinent legal actions for the
purpose of limiting any violation or threat of violation of any
commitment.
SEVENTH.- TRANSFER OF CONTRACT:
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This Contract is a personal contract, which requires the provision of
services by Mr. RAMON EGURBIDE only.
EIGHTH.- WAIVERS.
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No waiver by either party for any non-fulfillment in accordance with
this Contract shall be considered to have been extended to any previous
or subsequent non-fulfillment or shall not affect in any way whatsoever
any derivative rights. A renunciation by either party of any
non-fulfillment by the other party shall not operate as a waiver of any
other non-fulfillment whether it be similar or different to the waived
non-fulfillment. No lateness by CENTRAL DE COMPRAS or by Mr. RAMON
EGURBIDE in the exercise of any of their respective rights or remedies
shall operate as a waiver of said right.
NINTH.- SEPARATION.
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If any stipulation of this Contract or its application to any person or
circumstances is decided by a competent tribunal to be inapplicable by
any measure, said stipulation shall be considered to be eliminated in
the measure necessary to allow the remaining stipulations and the rest
of this Contract to be executed. If any stipulation of this Contract, or
any part of same, is considered to be inapplicable due to the scope or
the duration of the stipulation or the area covered by same, the scope,
duration, or area covered by said stipulation shall be reduced, or
otherwise amended to make said stipulation applicable in the broadest
measure allowed by law.
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The stipulations of this Contract in the sense that its terms require a
later execution of the termination of the work of Mr. RAMON EGURBIDE in
virtue of this [document], or of this Contract, shall survive said
termination."
THIRD.- For the resolution of any dispute arising from the interpretation and/or
fulfillment of this Contract, the parties submit themselves to the jurisdiction
of the Courts and Tribunals of the city of Madrid, with express renunciation of
any other jurisdiction which might be competent.
And in witness whereof, they read, approve, and sign this contract, in duplicate
copies, in the city and on the date indicated above.
MR. RAMON EGURBIDE URIGOITIA GMAI AUCTENTIA CENTRAL DE COMPRAS, S.L.