EXHIBIT 10.41
EMPLOYMENT AGREEMENT
THE UNDERSIGNED:
1. LOGICSOFT HOLDING BV, a closed company with limited liability under the
laws of the Netherlands, with its corporate seat in Amsterdam, hereinafter
referred to as: "EMPLOYER";
and
2. MR XXXXX X.X. VAN DER HELM, residing in the Netherlands at Xx Xxxxxxxxx 00,
0000 XX Xxxxxxxxxxxx, hereinafter referred to as: "EMPLOYEE";
TAKING INTO CONSIDERATION THAT:
a. Since January 21, 1991, Employee is employed by Logicsoft Europe B.V., a
subsidiary of Employer, originally in the function of Office Manager and
most recently in the function of Deputy Director.
b. Employer intends to appoint Employee as its Vice President and Chief
Operating Officer for the Netherlands, France, the United Kingdom and
Italy, as a consequence of which Employee shall leave the employment of
Logicsoft Europe B.V. as of December 14, 1998, and enter into the
Employment of Employer as of the same day.
c. Employer and Employee want to formalise their contractual relationship in
this employment agreement.
HAVE AGREED AS FOLLOWS:
1. TASKS AND DUTIES
1.1. Employer hereby employs Employee as Vice President and Chief Operating
Officer of Employer for The Netherlands, France, the United Kingdom and
Italy. Employee
2
hereby accepts such employment, upon the terms and conditions as set forth
in this agreement.
1.2 Employee agrees to devote his best efforts, attention and abilities to the
business and the affairs of Employer. Employee shall, at all times, observe
the best interests of Employer and its affiliates.
1.3 Except with the express prior written consent of the Board of Directors of
Employer, Employee shall not undertake any other paid or unpaid duties or
activities for or on behalf of third parties, or perform these duties or
activities on his own behalf.
2. DURATION OF THE AGREEMENT AND TERMINATION
2.1. This agreement shall be in force for a period of two years. The effective
date of this agreement is December 14, 1998. During the course of this
agreement, both Employer and Employee may terminate this agreement at four
months' written notice against the end of any calendar month.
2.2 Not later than September 14, 2000, Employer and Employee will discuss the
possibilities and conditions of an extension of the employment relationship
after December 14, 2000.
2.3 Employee is entitled to a severance payment of 50% of the gross salary per
year mentioned in article 3.1, if (a) Employer terminates this agreement
during its course or against the end of the period mentioned in article
2.1, unless such termination takes place for an "urgent reason" in the
sense of article 7:677 Dutch Civil Code; or (b) Employer substantially
changes the tasks and duties of Employee, as a consequence of which
relationship Employee wishes to terminate the employment relationship.
3. SALARY
3.1. The gross salary per year to which Employee shall be entitled is the
equivalent in Dutch guilders of U.S. $ 160.000,-, to be accounted on the
basis of the exchange rate on the date of this agreement. The salary will
be paid in 12 equal parts at the end of each
3
calender month.
3.2 Employee is not entitled to a holiday allowance.
3.3 The salary as mentioned in article 3.1 includes expenses concerning the
leasing and maintenance of a car. Employer is willing to pay part of the
salary mentioned in article 3.1 in the form of fixed cost reimbursements
and contributions to pension arrangements, in as far as this is permissible
under applicable (tax) law.
3.4 Without prejudice to the second sentence of article 3.3, the salary
payments mentioned in 3.1 shall be subject to normal statutory
withholdings, such as tax and social security premiums.
3.5 The payments mentioned in this article, shall be made to a Dutch bank or
giroaccount to be indicated by Employee.
4. BONUS
4.1. Employee is entitled to a yearly bonus of U.S. $ 20.000,- if he realizes
the income from operations target of that year. The income from operations
target of every year shall be set by Employer after consultation with
Employee before the beginning of each respective year. Employee is entitled
to a bonus of U.S. $ 40.000,- if the income from operations target of that
year is exceeded by at least 30%.
4.2. The bonus referred to in article 4.1 shall be paid by Employer to Employee
within 6 weeks after the annual accounts of Employer will be adopted (and -
in as far as necessary - approved) by the competent bodies of Employer.
4.3. Employee is not entitled to a bonus as referred to in article 4.1 in a year
in which he was ill during a (computed) period of four months or in which
he was suspended for any period or unable to perform his duties as a result
of disablement.
5. EXPENSES
4
5.1 Any reasonable expenses properly incurred by Employee in the performance of
his function - including costs for fuel for the car - in as far as not
covered by any fixed monthly reimbursement, shall be reimbursed by
Employer, in accordance with the standard procedure within the organization
of Employer. An account of such expenses, accompanied by supporting
receipts and other appropriate evidence, shall be rendered by Employee to
Employer from time to time.
6. WORKING HOURS OVERTIME
6.1 Employee shall put in such overtime, without being entitled to any
additional payments (in money or in free time), as may be reasonably
required from him in order to properly carry out his obligations under the
agreement.
7. HOLIDAYS
7.1 Employee shall be entitled to 24 holidays a year. He is entitled to enjoy
holidays after consultation and permission of the chairman of the Board of
Directors of Employer.
7.2 Employee shall not be entitled to short time ("arbeidstijdverkorting") .
8. ILLNESS OR DISABILITY
8.1 In case of illness or disability of Employee, Employer is obliged to pay
100% of the gross salary as referred to article 3.1 during the first 52
weeks of illness or disability. The above applies, however, only if and to
the extent that pursuant to the requirements of article 7:629 section 3 up
to and including 7, and section 9, of the Dutch Civil Code, Employer is
under the obligation to pay in accordance with article 7:629 section 1
Dutch Civil Code.
9. INSURANCE
9.1. Employee will participate in the collective insurance policy concluded by
Logicsoft Europe B.V. with regard to loss of income as a result of
disablement (WAO-
5
gatverzekering).
10. CONFIDENTIALITY AND DELIVERY OF DOCUMENTS
10.1 Employee shall not at any time, whether during or after the termination of
this employment agreement, except at the express request or with the prior
written consent of Employer, use, disclose or permit others to disclose to
any person, firm, partnership, company or third party any information
related to the business of Employer, any company of the group to which
Employer belongs, or any other details relating thereto, which he knows, or
reasonably can assume to be secret or confidential unless and to the extent
disclosure is necessary for the adequate performance of Employee's duties
under applicable law.
10.2 Employee shall treat all items of the employer, such as books, documents,
computer floppy disks, other information carriers, resolutions, drawings,
reports and notes as property of Employer, and he shall keep such materials
and documents, as well as copies thereof, as much as reasonable possible
locked away. Employee shall not use any item in another way, or keep any
item any longer, than necessary for the adequate performance of his duties.
Employee shall upon request, at any time, and without request at the moment
of termination of this agreement, and at the moment upon which he is
suspended for any period or unable to work as a consequence of illness for
a period longer than two months, deliver all items to Employer.
10.3 To the extent the information as mentioned in this article, is put in a
computer system of Employee or in another way is put in a form which
Employee does not have to deliver to Employer according to article 9.2,
Employee shall not keep such information any longer than necessary for the
adequate performance of his duties. Employee shall upon request, at any
time, delete and destroy such information and confirm in writing to
Employer that he has deleted and destroyed the same.
11. GIFTS
11.1 Employee is in the performance of his duties not allowed to accept or to
bargain for any direct or indirect gifts however defined without the prior
written consent of Employer.
6
11.2 Article 11.1 is not applicable to customary non valuable promotional gifts.
12. NON-COMPETITION
12.1 Without prejudice to the Share Purchase Agreement of September 30, 1997
(the "SHARE PURCHASE Agreement") between Programmers' Paradise, Inc. and -
among others - Employee, Employee shall, both throughout the duration of
this agreement and for a period of one year after this agreement has
terminated, not alone or jointly, directly or indirectly:
(a) engage in and or be concerned with activities which are similar or in
any way whatsoever competitive with the activities or the products of
Employer, Programmer's Paradise Inc. ("PPI") or any of their
subsidiaries or affiliated companies or seek to obtain orders from or
do business with customers relating to software or the distribution
thereof. (For the purpose of this clause "customers" shall mean:
companies or persons that purchase any goods or services from
Employer, PPI or any of their subsidiaries or affiliated companies or
have done so at any time during the period of one year prior to the
termination of this agreement);
(b) canvass or solicit orders for software or other goods of similar type
to those being manufactured or dealt in or for services similar to
those being provided by any of Employer, PPI or affiliated companies
from any person who is at the termination of this agreement or has
been at any time within one year prior thereto a supplier or customer
of any of Employer, PPI or any of their subsidiaries or affiliated
companies;
(c) engage, employ, solicit or contact with a view to hiring or engaging
employees of Employer, PPI or any of their subsidiaries or affiliated
companies (For the purpose of this clause "employees" shall mean:
persons employed by Employer, PPI or any of their subsidiaries or
affiliated companies or persons whose employment with Employer, PPI or
any of their subsidiaries or affiliated companies ended less than a
year before the termination of this agreement);
7
12.2 The restrictions in this article 12 shall not prohibit the Employee for
seeking to obtain orders from or do business with customers of Employer,
PPI, and/or their subsidiaries or affiliated companies after termination of
this agreement, so long as not including or concerned with any software or
software products and provided that PPI shall give its prior written
consent, which consent shall not unreasonably be withheld with respect to
such items or business that are not software or software products (it being
understood that such prohibition shall include and such consent feature
shall not be applicable to orders or business including software or
software products).
12.3 The obligations pursuant to this article apply solely to any work
activities or involvement of the Employee within the countries in Western
Europe (including Italy) where Employer, PPI or any of their subsidiaries
or affiliated companies are active or on the date hereof any of them
reasonably contemplate to be active.
12.4 For purposes hereof, each of the following shall be deemed competitive with
the activities of Employer, PPI or their subsidiaries or affiliated
companies (1) the sale or distribution of software and/or related
documentation in any and all languages, platforms, versions or releases,
and in any and all media and advertising and promotional services in each
case through catalogues and other direct mail publications, web site,
Internet, Intranet and other on-line or electronic communications or
distribution, and corporate reseller and wholesale operations, in-bound and
out-bound telemarketing or otherwise, (2) software consulting, systems
integration, software implementation and help desk services, (3) electronic
commerce related to software and (4) license management and tracking.
12.5 The Employee acknowledges that the provisions of this article are not
more extensive than is reasonable to protect Employer, PPI and/or their
subsidiaries or affiliated companies.
13. PENALTY
13.1 Should Employee not observe any of the obligations as mentioned in article
10 and /or 11 and/or 12 , Employer shall, without prior written notice or
court action being required, be entitled to an immediately payable penalty
of NLG 25,000 for every
8
breach, to be increased by NLG 5,000 for every day such breach continues,
without prejudice to any other rights or claims Employer shall have,
including the right to claim fulfilment of the obligations laid down in
article 10 and/or 11 and/or 12 by Employee in the future. Employer has the
right to claim full costs and damages instead of these penalties. The
parties hereto acknowledge that the above-mentioned penalty amounts
represent a genuine and reasonable pre-estimate of the minimum damage
likely to be suffered by the Company or its subsidiaries or affiliated
companies if the Employee breaches any of its duties pursuant to article
10, 11 and 12.
13.2 In the event that there is breach of the duties of the Employee pursuant to
article 10 or 12 of this agreement, any penalties for such breach may, to
avoid collecting double penalties, only be collected either under the Share
Purchase Agreement or under this agreement.
13.3 Each of the restrictions in article 10, 11 and 12 shall be enforceable by
Employer independently.
14. APPLICABLE LAW
14.1 This agreement is governed by the laws of The Netherlands.
15. PRECEDING AGREEMENTS AND MODIFICATIONS
15.1 This agreement supersedes the employment agreement of December 14, 1990
(including the addendum of September 30, 1997), and other possible
modifications and employment agreements between on the one hand Employer,
PPI, their subsidiaries and affiliates and on the other hand Employee.
This agreement is signed in twofold on 1998
9
--------------------- ----------------------
Logicsoft Holding B.V. F.H.M. van der Helm
by:
function:
