Employment Agreement - Schoeller Plast Holding GmbH and Gunter Gerland
English Translation
Preliminary Contract on the Conclusion of a
MANAGEMENT CONTRACT
between
Mr. Gunter Gerland, resident in: In den Hessengarten 5, 61352 Bad-Homburg
- hereinafter referred to as "the Director"
-
and
Schoeller Plast Holding GmbH, Heilmannstrasse 1, 81479 Munich
- hereinafter referred to as "Schoeller" -
Introduction
A pool is operated for reusable containers for fruit and vegetables (IFCO) as
part of the Schoeller Group. Various additional pools are being prepared for
other reusable containers in addition to the aforesaid reusable container pool.
Schoeller shall be liable to the Director that for ensuring that Schoeller or a
Schoeller company will establish a new company by no later than April 1, 1994
(hereinafter referred to as the "Company") as the sponsor of additional pools
for reusable containers and that the Company will conclude a Management Contract
with the Director with further details of the following terms and conditions.
The Director hereby promises Schoeller that he will conclude a Management
Contract with the Company with further details of the following terms and
conditions as a contract in favour of the aforesaid Company.
I. Contract Commencement and Term
(1) The contract of employment shall commence upon Schoeller's receipt of the
notification by the Director that his present contract of employment has
been rescinded, at the earliest on January 1, 1994 but at all events not
later than April 1, 1994 and regardless of the receipt of the aforesaid
notification.
(2) The contract of employment shall have a fixed term of 18 months. The
contract of employment shall be automatically prolonged to December 31,
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1997 unless it is terminated by one of the contracting parties with at
least 6 months' notice. If the present contract is terminated by the
Company, the Director shall be entitled to payment of his fixed agreed
compensation for a period of twelve (12) months with effect from receipt of
the notice of termination. This shall not be interpreted as a prolongation
of the contract of employment extending beyond the first fixed period of 18
months but as a commitment of the Company to pay severance compensation
based on how many months the aforesaid twelve months' period covers the
first fixed term of 18 months. The contract of employment shall be
prolonged for a further period of 3 years after December 31, 1997 unless
the contract has been terminated by one of the contracting parties with 12
months' notice to the end of the contract.
(3) As a prerequisite for its validity, any notice of termination must be
served in writing by the Director to the Chairman of the Shareholders'
Committee if such a Chairman has been designated to the best of the
knowledge of the Director, otherwise to all shareholders registered with
the Company.
(4) Upon receipt of the notice of termination, the Company shall be entitled to
suspend the Director from his duties with a continued payment of his
average monthly remuneration for the last twelve months. All holiday
entitlements shall be settled with the aforesaid exemption from duties.
II. Function / Scope of Activities
(1) The Director shall represent the Company singly or together with one or
more additional Directors or together with a Procurist [an officer of the
company with registered powers of representation].
(2) The Director shall assume the commercial and logistic activities of the
Company. The Company may specify the job description in further detail
within the above-mentioned framework.
(3) When exercising his duties and especially when representing the Company in
legal matters, the Director shall observe the provisions of the
shareholders' meeting and, if one is available, the shareholders'
committee, the Company's statutes and the current version of the Rules of
Procedure (especially rules of procedure relating to several Directors in
relations per se if applicable) (the current version is enclosed in the
Appendix) and shall also comply with the provisions of the present
Management Contract.
III. Work Assignment
(1) The Munich office in Irmgardstrasse is envisaged as the place of work. The
Director shall be prepared to move within Germany to a reasonable ex rent
for operational reasons.
(2) Normal working hours shall be fourty (40) hours per week, including breaks,
with a week consisting of five (5) working days.
(3) The Director shall be prepared to carry out additional work and to work
overtime for operational reasons, including driving hours caused by
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business travel and hereby confirms that the aforesaid is settled in full
with his remuneration referred to in the following Section IV.
IV. Remuneration
(1) The MD shall receive a annual gross salary of DM 205,000 (fixed) as
compensation for his services, payable in thirteen equal monthly
installments at the month-end after deducting taxation and social security
contributions. The employer's contribution to the social security
contributions shall be borne by the Company.
(2) The Director shall receive an annual bonus of DM 45,000 in addition to his
fixed salary provided the Company has achieved its targets during the
financial year as specified by the Company at the beginning of the
financial year on the basis of a budget / annual forecast proposal
submitted by the Director. The bonus shall be paid when the annual
financial statements are available and shall be increased or reduced
depending on the extent to which the aforesaid objectives are exceeded or
otherwise; further details are provided in the specimen calculation
attached in the Appendix. For the first year of the present Management
Contract, the Director shall receive a supplement of DM 57,000 in addition
to his fixed annual gross fixed salary instead of the variable bonus
governed above which depends upon the achievement of given targets, with
the first half of the aforesaid supplement being paid at the end of October
1994 and the second half at the end of January 1995.
(3) If the work of the Director end during the course of a year and begins
and/or ends during the course of a month, the fixed annual gross salary and
the bonus shall be calculated and paid pro rata temporis (with the
exception of 1994).
(4) The Company shall insure the Director against business and private
accidents at its cost, namely DM 350,000 in the event of death and 700,000
in the event of disability. Claims under the aforesaid insurance policies
shall be paid directly to the Director or, in the event of his death,
directly to his heirs.
(5) A direct insurance of DM 4,200 p.a. shall be concluded for the Managing
Director. The payments to be made by the Company in this respect shall be
included in the gross fixed salary and shall be deducted from the aforesaid
amount.
(6) The Director's gross fixed salary shall be discussed at the end of the
first contract year and thereafter every two years. The economic
development of the Company, the personal performances and contributions of
the Director and the increase in the cost of living shall be appropriately
taken into account.
V. Employees' Capital Accumulation Scheme
(1) The Company shall pay the monthly contributions of DM 52 to the Director
relating to the employees' capital accumulation scheme.
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(2) The Company shall make the first payment of this benefit with effect from
the first month of employment.
VI. Company Car / Travelling Expenses
(1) The Director shall be provided with a company car - a BMW 520 or
comparable model in the standard design.
(2) The company car may be used by the Director for reasonable private
purposes, whereby the necessary fuel costs shall be done by the Director
personally.
(3) The Director shall wage tax attributable to the private use of the
company car in accordance with the respective tax regulations.
(4) The relevant guidelines of the Company (the current version is enclosed
in the Appendix) shall apply for the reimbursement of costs incurred on
business travel. If the expenses incurred exceed the fixed rate amounts
permissible under taxation regulations, the Director shall be required to
document the aforesaid amounts in detail by means of proper vouchers and
invoices.
VII. Holiday
(1) The Director's holiday shall be equivalent to 30 working days.
(2) The timing of the Director's holiday shall be coordinated with the
business requirements of the Company. Any works holiday shall be set off
against the annual holiday.
VIII. Duty of Secrecy
(1) The Director shall undertake to observe secrecy with regard to
circumstances and matters of the Company and firms affiliated with the
Company and which come to the attention of the Director within the scope of
the employment relationship in dealings with everyone who is not authorized
to have such knowledge by virtue of his position or activity within the
Company. This principle of secrecy shall also apply after the Director has
left the Company. It shall not relate to communications which the Director
has to make by law. The Director shall grant unauthorized persons no
insight into the affairs and circumstances of the Company or any other
companies within the Schoeller Group, nor insight into his own knowledge of
the Company's operations, procedures and installations, etc., which the
Director does not need to grant for business reasons.
(2) The results of the business activities of the Director shall remain the
(intellectual) property of the Company. Reference is also made in this
respect to Section X. of the present contract.
(3) As the property (including the intellectual property) of the Company
assigned to him, the Director shall undertake to treat all items relating
to his business activities with care, e.g. tools, other working utensils,
books, documents, plans, specimens, own drawings and business documents
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of all kinds and to keep them in safe custody in such a way that they do
not come into the hands of unauthorized persons and that they are
automatically returned to the Company at any time upon request but at the
latest when the present contract of employment comes to an end. The
Director shall have no retention right in respect of the aforesaid items.
IX. Competition Ban
(1) The Director shall be subject to a subsequent competition ban for a further
24 months when the present contract of employment has terminated. During
the aforesaid period, the Director shall support no business which operates
a pool for reusable containers, or develops, produces or rents reusable
containers capable of being pooled, which offers multiple-use logistics as
a "product" or which competes with the Company in any other way
(hereinafter referred to as "Competitors"). From a spatial point of view,
the competition ban includes all competitors which operate in the
territories of the Federal Republic of Germany and direct neighboring
countries to the Federal Republic of Germany. The Director shall
particularly undertake to enter into no employment, management of
consultancy agreements with the aforesaid competitors, nor to perform any
of the aforesaid contracts, nor to acquire direct or indirect holdings in
any such companies, nor to commence a competitive activity for his own
account.
(2) The Company shall pay the Director a compensation amounting to half what
the Director earned in the last 12 months prior to the termination of his
contract of employment. (S) 74 c of the German Commercial Code shall apply
accordingly.
(3) If the Director breaches the competition ban, he shall pay a contract
penalty to the Company for one month during the period of infringement or a
continuation thereof, with such contract penalty being equivalent to one
sixth (1/6 th) of what the Director earned as (gross) remuneration in the
last 12 months before he left the Company. Additional claims by the Company
shall not be prejudiced by the aforesaid contract penalty.
(4) The Company may waive the competition ban by means of a written declaration
to the Director before the end of the constrict of employment, with the
result that the Company is exempt from its obligation to pay compensation
in accordance with the preceding paragraph 2 at the end of 3 (12) months
following receipt of the aforesaid Declaration.
X. Inventions
Any inventions made by the Director and any claims to industrial property rights
based on the aforesaid inventions, including all copyright exploitation rights
to any creations of the Director, shall remain the exclusive property of the
Company with the exception of inventions and creations which clearly have no
relationship whosoever with the areas of activity of the Company. No special
compensation shall be payable to the Director in this respect. All inventions
and /or creations eligible for copyright protection and to which the Company is
entitled shall be reported to the Company (represented by the shareholders'
meeting) by the Director immediately and the latter shall
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support the Company to the necessary extent in acquiring and exploiting any
industrial property rights.
XI. Secondary Employment
(1) The Director shall devote the whole of his working activities to the
affairs of the Company and shall promote the interests of the Company to
the best of his ability.
(2) During the term of the present contract, the Director shall undertake to
carry out no remunerative or normally remunerative secondary employment
without the prior written consent of the Company. This shall also apply to
direct or indirect participators in other companies which are clearly not
exclusively acquired for ordinary investment purposes. Any membership in
official bodies (Management Boards, Executive Boards and Supervisory
Boards) of other companies shall likewise require the prior written consent
of the Company.
XII. Illness
In the event of illness or any other hindrance or impediment not attributable to
the Director, the remuneration of the Director shall be continue to be paid for
a period of 6 months.
XIII. Final Provisions
(1) Any contract amendments must be made in writing in order to be valid and
also require the express consent of the shareholders' meeting. The same
shall also apply to any rescission of the aforesaid written form
requirement.
(2) If individual provisions of the present contract are or become invalid, the
validity of the other provisions shall remain in full force and effect. The
parties shall undertake to replace the invalid provision by a valid
provision which comes as close as possible to the original economic
intention of the invalid provision.
Munich, December 22, 1993
Schoeller Plast Holding The Director:
Bad Homburg, December 29, 1993
represented by:
By /s/Christoph Schoeller By /s/Gunter Gerland
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Christoph Schoeller Gunter Gerland
Appendices - Guidelines on removal, travelling and accommodation costs
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- Rules of Procedure
- Assumption of "commuting costs"