Managing Director Employment Agreement - MTS Oklologistik GmbH and Klaus Hufnagel
English Translation
MANAGING DIRECTOR EMPLOYMENT AGREEMENT
between
MTS Oklologistik GmbH, Zugspitze 15, 62 049 Pullach here represented by its
shareholder IFCO Systems N.V. the latter represented by its managing director
Dr. Willy von Becker
- hereinafter "the Company" -
and
Mr. Klaus Hufnagel, Denninger Strasse 164, 81927 Munchen
- hereinafter "Managing Director" -
I. Position
(1) Mr. Hufnagel is appointed with corresponding shareholder resolution as
Spokesman of the Management of the Company.
(2) His area of duties shall comprises the management of the transactions of
the Company, according to the stipulation of the law, the regulations of
the Company Agreement and the instructions of the Shareholders' Meeting and
can, alongside this, from time to time at the request of the Shareholders'
Meeting extend to the support of its intercompany objectives, to the
fulfilment of other duties and the taking over of further areas of
responsibility within the framework of the Schoeller group.
(3) Rules of Procedure to be decreed by the Shareholders' Meeting and at any
time alterable can regulate the scope of the authority of the Management
internally, and the allocation of duties and areas of responsibility and
the distribution of duties and competence of several managing directors of
the Company between each other which, in its currently valid version,
shall be part of the Agreement.
(4) The Spokesman of the Management shall report currently to Messrs Martin
Schoeller and Christoph Schoeller (representatives of the Shareholders'
Meeting).
(5) The working hours shall be directed according to the business requirements
and shall amount to 40 hours per week. The Managing Director declares his
preparedness to carry out any additional work and overtime which becomes
operationally necessary including Saturdays, Sundays and public holidays
and travelling time arising through travelling activities.
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(6) The place of work shall be the head office of the Company in Pullach,
Zugspitze 15. In case of business requirement, the Managing Director shall
also be prepared to move to another German town/city whereby the Company
shall take over the removal costs on presentation verification.
(7) All actions and transactions outside the current business operations and
the transactions contained in appendix 1 shall require the prior written
approval of the Shareholders' Meeting or the representatives of the
Shareholders' Meeting according to no. II (4).. Further restrictions in the
internal relationship and revocation of the appointment can be resolved at
any time by the Shareholders' Meeting. In the internal relationship, the
Spokesman of the Management shall always require a second signature, i.e.
the signature of another managing director or a "Prokurist" (Executive
employee with special power of attorney) even if he has been granted the
authority of sole representation.
II. Remuneration
(1) The Spokesman of the management shall receive an annual gross salary of DM
300 000 (basic salary) payable in twelve equal monthly instalments each at
the end of a month.
(2) In addition to the basic salary according to the above paragraph (1), the
Spokesman of the Management shall receive a variable remuneration dependent
on success according to the stipulation of the bonus plan to be determined
annually by the Shareholders' Meeting. The bonus decisive at commencement
of the agreement shall be a significant part of this agreement and
envisages the following:
The maximum achievable annual bonus shall be DM 150 000 and is composed to
50% of stock options on stock exchange quotation of IFCO Systems and to 50%
from a result/target-dependent amount. The details of the stock options
shall be negotiated separately. The result/target-dependent bonus share
shall be directed to 20% to the result of IFCO Systems and to 80% to the
result of MTS/the personal objectives.
For the first year of the Agreement (2000), a bonus of 80% of the total
amount of DM 150 000 shall be guaranteed whereby in the year 2000 DM 50 000
from the guaranteed bonus together with the monthly basic salary from the
Company shall be paid out proportional to time.
For the second year of this agreement (2001) a bonus of a total of DM 50
000 shall be guaranteed by the Company which shall also be paid out monthly
with the basic salary and shall be counted in the payment of the total
bonus due to the Spokesman of the Management.
From the third year of the Agreement (2002), no part of the bonus shall be
guaranteed by the Company. A mid-year advance payment of DM 50 000 shall be
paid on the total bonus. This advance payment shall be paid out monthly
proportionally with the basic salary and shall be counted in the payment of
the total bonus due to the Spokesman of the Management.
The not guaranteed part of the bonus shall be paid out at the latest 3
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months after expiry of each business year of the Company as far as the
claim of the Spokesman of the Management to payment of the not guaranteed
bonus exists.
For the claim to the not guaranteed target remuneration, only the
achievement of the objectives is of significance, not, however, whether the
decisions of the Spokesman of the Management were veritably the cause for
the achievement of targets. On the other hand, there shall be no claim on
the part of the Spokesman of the Management to not guaranteed target
remuneration if he has not achieved the objectives set wholly or partly due
to the decisions of the Shareholders' Meeting, e.g. on alteration to or
removal of products or distribution channels.
(3) The Company shall take over a contribution to the voluntary health
insurance and statutory nursing insurance of the Spokesman of the
Management amounting to the statutory employer share, a maximum, however,
of the employer share taking the national insurance system as basis. This
contribution shall be paid out in addition to the monthly basic salary.
(4) The Company shall grant the Spokesman of the Management from the first full
month of employment asset-creating payments amounting to DM 52.00 monthly.
(5) Remuneration according to paragraph (1) shall be reviewed every 1.5 years.
III Illness/Insurance
(1) The Managing Director shall inform the representative of the Shareholders'
Meeting without delay about any illness and, in case of illness lasting for
more than 3 days, present a doctor's certificate from which the incapacity
to work and the probable duration of the illness can be seen. The Managing
Director shall thereby draw the attention of any co-managing directors and
the representative of the Shareholders' Meeting to matters which have to be
attended to urgently.
(2) In the case of blameless illness or incapacity to work preventing the
carrying out of his duties, the Spokesman of the Management shall have
claim to continued payment of the basic salary plus the guaranteed bonus,
the advance payment on the bonus from the year 2002 and the contribution to
the voluntary health insurance and the statutory nursing care according to
nos. II (1), (2) and (3) for the duration of six (6) months.
(3) If the Company has a company old-age pension scheme, the Spokesman of the
Management shall participate - as long as nothing else is agreed.
(1) The company shall conclude an accident insurance for the Spokesman of the
Management which shall insure him against business or private accident
amounting to DM 500 000 for the case of death and DM 1 000 000 in case of
invalidity.
(2) The Company shall take over the costs of the existing direct insurance of
the Spokesman of the Management amounting to DM 3408.00 p.a.
IV. Travelling Costs/Company Car
(1) The Company shall refund the Managing Director all verified travelling
costs in accordance with the currently valid establishment or travelling
cost guidelines of the Company and the currently valid legal German tax
guidelines.
(2) As far as in any establishment or travelling costs guidelines of the
Company nothing else is determined, the Managing Director shall be
entitled to use the 1st class for rail travel and the business class for
air travel.
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(3) Should the expenses paid exceed the lump-sum amount permitted by the tax
regulations, the Managing Director shall verify the amounts in detail by
means of correct dockets and invoices.
(4) The Company shall provide the Spokesman of the Management in accordance
with the stipulation of the currently valid company car guidelines with a
car of a purchase price of DM 90 000 for private and business use and shall
bear all costs arising for this both for business and for private use. The
Spokesman of the Management shall bear the income tax incurred by the
private share of the use. In the case of release of further activities in
accordance with no. VIII (3), the obligation of the Company to provision of
the car falls away and the Spokesman of the Management undertakes to return
the car to the Company on first demand by the Company.
V. Holidays
(1) The Managing Director shall have claim to annual holiday of 30 working days
which, in case of employment for less than a full year, shall be granted
proportionally. Working days are all calendar days with the exception of
Saturdays, Sundays and statutory holidays at the head office of the
Company.
(2) The Managing Director shall orientate the point of time and duration of
holidays to company interests and co-ordinate it reasonably in advance with
the representative of the Shareholders' Meeting and any co-managing
directors.
VI. Ancillary Employment/Prohibition of Competition
(1) The Managing Director shall devote his complete working capacity to the
Company and foster its interests. Any other remunerative employment or
participation in other companies of any type shall require the approval of
the Shareholders' Meeting. This is not the case for the customary purchase
of shares or other business shares for the purposes of investment. The
membership in representative supervisory bodies of other companies also
requires the prior approval of the Shareholders' Meeting. The Company shall
grant approval when the ancillary employment does not impair the work
performance of the Spokesman of the Management within the framework of this
agreement and other justified company interests of the Employers are not
impaired.
(2) In addition, the parties agree the following subsequent prohibition of
competition which shall only become effective if no termination of the
employment relationship is pronounced during the trial period:
(a) The Managing Director undertakes, during his employment and for the
duration of 24 months after termination of the employment relationship, not
to carry out competitive activities in any form either of a self-employed
nature or as an entrepreneur, nor non-independently or as employee either
directly or indirectly through participation. Competitive activity in the
sense of this provision is all activity which has to do with competitive
products and/or which refer to a target market of the Company or associated
enterprise. Associated enterprises in the sense of sub-paragraph (a) are
companies for which the Managing Director has had management responsibility
in the last two years before termination of his employment. Competitive
products are products, developments or services which are similar to the
products, developments or services or are in competition with the products,
developments or services which the Company or associated enterprises have
manufactured, developed, licensed, distributed or actively planned (and at
least passed a corresponding resolution) in the last two years before
termination of the employment of the Managing Director. Competitive
products are in particular all products, developments or services which
concern dual-use packaging systems. The target market of the Company or
associate enterprises is any market sector, any market segment or customer
and/or supplier group with which the Company or associated enterprises have
had a business relationship in the last two years before termination of the
employment or built up or actively planned a business relationship.
Competitive activity is in particular any activity for the enterprises
Chep, Steco, BPS, Delbrouck, Compac, Linpak, Cramer, Hays and all
enterprises active in the MTV amalgamation and their associated companies
as far as the Managing Director does not inform Company in writing about
the taking up of such an activity and verify the he, in this company, works
in a separate department and has exclusively to do with other products,
developments or services than the competitive products. Competitive
activities in the sense of this provision are all activities in the fields
in which the Company is active. Fields of activities of the Company are:
- the letting of dual-use transport containers in particular for fruit,
vegetables, fish, meat and other fresh foodstuffs;
- the operation of other dual-use transport systems and the packaging and
further letting of these systems;
- the provision of services in the winding up of dual-use pools:
- the organisation of pools (of dual-use transport systems) and the provision
of services which are in connection with this in particular washing
services.
-
Competitive products are, in particular, all products, developments and
services which concern the dual-use packaging systems.
(b) The prohibition of competition extends spatially also to all countries in
which the Company is active at the point of times of resignation of the
Spokesman of the Management.
(c) For the duration of the prohibition of competition subsequent to the
contract, the Company undertakes to pay the Spokesman of the Management
compensation amounting to half of the last payments made in accordance with
this agreement, in particular of the basic salary and the bonus, for
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each year of prohibition,.
(d) The Company can, before expiry of the employment relationship, waive
adherence to the prohibition of competition subsequent to the contract by
means of written declaration towards the Managing Director. In this case
the obligation to payment of compensation ends after 12 months after
declaration of the waiver.
(e) Sections 74 et seq. HGB are valid in addition.
(f) In the case of exceptional termination of the employment relationship for
good cause, the contractual party justified to termination shall have the
right to cancel the prohibition of competition by means of written
declaration towards the other party within one month after receipt of the
exceptional termination. Compensation in the case of dissociation is not
indebted.
VII. Secrecy, Inventions, Copyright and other Protective Rights, Return of
Documents
(1) The Managing Director is obliged, in particular also in the period
following termination of this service agreement, to keep secret all
confidential information about the business of the contractual
relationships, conclusions, transactions or special matters concerning
the Company or associated enterprises and not to use this information
for his own or the use of others.
(2) Publication and lectures which affect the field of business of the Company
or of other associated enterprises require the prior approval of the
Shareholders' Meeting.
VIII. Term
(1) This Agreement shall commence on 01/02/2000 and is valid for an
undetermined period. Both parties can terminate the agreement at 6 months'
notice with effect from the expiry of a calendar year.
(2) The right to exceptional termination remains unaffected.
(3) The Company is entitled to release the Spokesman of the Management during
the term of this agreement from further activities in particular in the
case of his suspension or dismissal as Managing Director whereby the
Managing Director shall only have claim to continued payment of his basic
salary plus the guaranteed bonus. Advance payment on the bonus from the
year 2002 and the contribution to the voluntary health insurance and the
statutory nursing insurance according to no. II (1), (2) and (3). (?
original not grammatically complete - translator's note).
IX. Diverse
(1) This Agreement replaces all previous agreements concerning the service
relationship. Any previous employment relationship shall be regarded at the
latest on expiry of the last day before commencement of this agreement as
being terminated and shall also not exist as dormant work relationship.
(2) This agreement is subject to the law of the Federal Republic of Germany.
The place of jurisdiction shall be Munich, District Court Munich I.
(3) The place of fulfilment for the duties of both parties shall be the head
office of the Company.
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(4) For the case that one regulation of this Agreement, taking into
consideration applicable law, be or become ineffective or unenforceable,
this should not lead to the fact that the complete agreement is ineffective
or unenforceable. The regulation shall rather be altered and interpreted in
such a manner that the original objective of such an ineffective or
unenforceable provision can be achieved within the framework of applicable
law and jurisdiction. The same is the case for loopholes in the agreement.
Amsterdam, 21/12/1999 Munich, 23/12/1999
MTS Okologistik GmbH
represented here by its shareholder
IFCO Systems N.V,
the latter represented by its Managing Director Dr. Willy von Becker
/s/ Klaus Hufnagel /s/ Willy von Becker
(signature) (Managing Director)
(Klaus Hufnagel)