FIXED TERM EMPLOYMENT AGREEMENT
Exhibit
10.1
This
Employment Agreement (“the
Agreement”)
dated
as
of ,2008
is
between XXXXXX
XXXXXXX CONTINENTAL EUROPE SRL (“the
Company”
or
“the
Employer”)
and
Xx. XXXXXXX XXXXX XXXX (“the
Executive”).
By
executing this agreement the Company and the Executive agree as
follows.
Type
of employment: fixed-term
contract, pursuant to Article 10, Paragraph 4, Law Decree n. 368 of 6 September
2001, as modified by Law n. 247 of 24 December 2007.
Starting
date and duration of employment: from
1st,
2008 to
December 31th,
2011.
Anticipated
termination of the contract: it
is
expressely agreed that in derogation of the provisions of the Italian Law
currently applicable to the fixed-term labour relationship, the Executive shall
be entitled to terminate the employment with the Company at any time during
the
term of the Agreement by giving a four months’ notice starting from the receipt
by the Company of Executive’s resignation letter and without any penalties for
the Executive.
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Role
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Executive
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Applicable National
Contract:
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CCNL
per i Dirigenti di Aziende Produttrici di Beni e Servizi (“the
National Contract”)
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Annual
Gross Salary:
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Euro
195.000,00.=
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“Overall Minimum
Guaranteed Salary” according to the National Contract
:
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Euro
55.000,00.=
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The
annual Gross Salary is fixed and not subject to adjustements for the entire
duration of the Agreement.
In
particular the balance between the Annual Gross Salary paid to the Executive
and
the “Overall Minimum Guaranteed Salary” provided for by the National Contract
will absorbe future salary increases which may become due by law and/or as
a
result of future renewals of the National Contract.
Other
Benefits: in
addition to the benefits provided by the National Contract and in accordance
with Company’s Policies and Procedures, the Executive shall have the right to
benefit of the “Xxxxx Xxxxxx” Health Insurance Policy, supplemental to FASI, and
shall be assigned a Company car of “C Category” for mixed use.
Protection
of Confidential Information; Non-Competition and
Non-Solicitation.
1.1 Confidential
Information.
The
Executive acknowledges that the Executive’s services will be unique, that they
will involve the development of Employer subsidized relationships with key
customers, suppliers, and service providers as well as with key Employer
employees and that the Executive’s work for the Employer will give the Executive
access to highly confidential information not available to the public or
competitors, including trade secrets and confidential marketing, sales, product
development and other data and information which it would be impracticable
for
the Employer to effectively protect and preserve in the absence of this Section
1.1 and the disclosure or misappropriation of which could materially adversely
affect the Employer. Accordingly, the Executive agrees:
1.1.1 except
in
the course of performing the Executive’s duties for the Employer or
in
case of information which is or will become known to the public,
not ant
any time, whether before, during or after the Executive’s employment with the
Employer, to divulge to any other entity or person any confidential information
acquired by the Executive concerning the Employer’s or its subsidiaries’ or
affiliates’ financial affairs or business processes or methods or their
research, development or marketing programs or plans, or any other of its or
their trade secrets. The foregoing prohibitions shall include, without
limitation, directly or indirectly publishing (or causing, participating in,
assisting or providing any statement, opinion or information in connection
with
the publication of) any diary, memoir, letter, story, photograph, interview,
article, essay, account or description (whether fictionalized or not) concerning
any of the foregoing, publication being deemed to include any presentation
or
reproduction of any written, verbal or visual material in any communication
medium, including any book, magazine, newspaper, theatrical production or movie,
or television or radio programming or commercial. In the event that the
Executive is requested or required to make disclosure of information subject
to
this Section 1.1.1 under any court order, subpoena or other judicial process,
then, except as prohibited by law, the Executive will promptly notify the
Employer, take all reasonable steps, requested by the Employer, to defend
against the compulsory disclosure and permit the employer to control with
counsel of its choice any proceeding relating to the compulsory disclosure.
The
Executive acknowledges that all information, the disclosure of which is
prohibited by this section, is of a confidential and proprietary character
and
of great value to the Employer and its subsidiaries and affiliates;
1.1.2 to
deliver promptly to the Employer on termination of the Executive’s employment
with the Employer, or at any time that the Employer may so request, all
confidential memoranda, notes, records, reports, manuals, drawings, software,
electronic/digital media records, blueprints and other documents (and all copies
thereof) relating to Employer’s (and its subsidiaries’ and affiliates’) business
and all property associated therewith, which the Executive may then possess
or
have under the Executive’s control.
1.2 Employer
Protections.
In
consideration of the Employer’s entering into this Agreement, the Executive
agrees that at all times during the duration and thereafter for the time period
described hereinbelow, the Executive shall not, directly or indirectly, for
Executive or on behalf of or in conjunction with, any other person, company,
partnership, corporation, business, group, or other entity (each, a
“Person”):
1.2.1 Non-Competition:
until
the
first anniversary of the Date of expiry of the Agreement or termination of
Executive’s employment for any reason (“Date
of Termination”),
engage
in any activity for or on behalf of a Competitor, as director,
employee,
shareholder
(excluding any such share holding by the Executive of no more than five percent
(5%) of the shares of common stocks of a publicly traded company),
consultant or otherwise, which is the same as or similar to activity in which
Executive engaged at any time during the last two (2) years of employment by
the
Employer;
notwithstanding
the
foregoing, although the intent of the parties is to have a global, worldwide
non-compete, solely in the event a court holds that the foregoing global
non-compete is unenforceable due to its scope, the Executive voluntarily agrees
to be subject to a revised non-compete which instead covers any activity which
is the same as or similar
to
activity in which Executive engaged at any time during the last two (2) years
of
employment by the Employer within
the territory of the
European Union, Saudi Arabia and Singapore;
1.2.2 Non-Solicitation:
until
the
second anniversary of the Date of Termination:
(i) Of
Employees:
call
upon
any Person who is, at such Date of the Executive’s termination of employment,
engaged in activity on behalf of the Employer or any subsidiary or affiliate
of
the Employer for the purpose or with the intent of enticing such Person to
cease
such activity on behalf of the Employer or such subsidiary or affiliate;
or
(ii) Of
Customers:
solicit,
induce, or attempt to induce any customer of the Employer to cease doing
business in whole or in part with or through the Employer or a subsidiary or
affiliate, or to do business with any Competitor.
For
purposes of this Agreement, “Competitor” means a person or entity who or which
is engaged in a material line of business conducted by the Employer. For
purposes of this Agreement, “a material line of business conducted by the
Employer” means an activity of the Employer generating gross revenues to that
entity of more than twenty-five million dollars (US$25,000,000) in the
immediately preceding fiscal year of the respective entity.
1.2.3 Consideration
from Employer for Entering into the Non-Compete and
Non-Solicitation.
As
consideration for agreeing to the restrictive covenants set forth in paragraphs
1.2.1 and 1.2.2 immediately above (the “Consideration”), the Employer agrees to
pay the Executive, the following:
(A) a
payment
equal to € 58,500 (i.e., 30% of Executive’s Annual Gross Salary) to be made
on the
first
day of the month immediately following the month which includes Executive’s Date
of Termination or within ten (10) days thereof; and
(B) another
payment equal to € 19,500 (i.e., 10% of Executive’s Annual Gross Salary) to be
paid
on
the one-year anniversary of
the
payment date
under
clause
(A) immediately above.
It
is
understood that the payments under this Paragraph 1.2.3
are
in
addition to, and not in lieu of, any other payments due to the Executive under
this Agreement. Notwithstanding the foregoing, the Employer shall not be
required to make any payments hereunder if the Executive commits a breach or
threatens to breach any of the provisions of Paragraph 1.2.1 and 1.2.2
immediately above.
1.3 Remedies
and injunctive Relief.
If
the
Executive commits a breach or
threatens to breach any
of
the provisions of Section 1.1 or 1.2 hereof, the Employer shall have the right
and remedy to have the provisions of this Agreement specifically enforced by
injunction or otherwise by any court having jurisdiction, it being acknowledged
and agreed that any such breach will cause irreparable injury to the Employer
in
addition to money damage and that money damages alone will not provide a
complete or adequate remedy to the Employer, it being further agreed that such
right and remedy shall be in addition to, and not in lieu of, any other rights
and remedies available to the Employer under law
or in
equity.
1.4 Severability.
If any
of the covenants contained in Sections 1.1, 1.2 or 1.3, or any part thereof,
hereafter are construed to be invalid or unenforceable, the same shall not
affect the remainder of the covenant or covenants, which shall be given full
effect, without regard to the invalid portions.
1.5
Extension
of Term of Covenants Following Violation The
period during which the prohibitions of Section 1.2 are in effect shall be
extended by any period or periods during which the Executive is in violation
of
Section 1.2
1.6
Choice
of Forum and Modification by Court.
It is
agreed that any court anywhere in the world has jurisdiction to hear the
particular issues of Section 1.1 or 1.2. If any of the covenants contained
in
Section 1.1 and 1.2 are held to be unenforceable, the parties agree that the
court making such determination shall have the power to revise or modify such
provision to make it enforceable to the maximum extent permitted by applicable
law and, in its revised or modified form, said provision shall then be
enforceable.
1.7
Modification
by One Court Not to Affect Covenants in Another Country.
The
parties hereto intend to and hereby confer jurisdiction only to enforce the
specific covenants contained in Sections 1.1. and 1.2 upon the courts of any
country within the geographical scope of such covenants. In the event that
the
courts of any one or more of such countries hold such covenants wholly
unenforceable by reason of the breadth of such covenants or otherwise, it is
the
intention of the parties’ hereto that such determination not bar or in any way
affect the Employer’s right to the relief provided above in the courts of any
other countries within the geographical scope of such covenants as to breaches
of such covenants in such other respective jurisdictions, the above covenants
as
they relate to each country being for this purpose severable into diverse and
independent covenants
Other
terms and conditions of the labour employment. As
regards all the other terms and conditions not specified in this letter, express
reference is made to the National Contract.
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XXXXXX
XXXXXXX CONTINENTAL EUROPE
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THE
EXECUTIVE
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BY
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NAME:
Xxxxxxx Xxxxxx
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NAME:
Xxxxxxx xxxxx Xxxx
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TITLE:
Human Resources Director
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