EX-4.5
EMPLOYMENT AND SERVICE AGREEMENT
EMPLOYMENT AND SERVICE AGREEMENT between EuroTrust A/S, a corporation
established under the laws of the Kingdom of Denmark, with offices at
Poppelgardvej 11-13 2860 Soborg, Denmark, (the "Company") and Xxxx Xxxxxxxx,
residing at Xxxxxxxxxxxx 00 XX-0000, Xxxxxxxx, Xxxxxxx (the "Executive").
WHEREAS, the Executive has been employed as the Chief Executive Officer of
the Company since 1 December, 1988;
WHEREAS, the Executive and the Company are parties to a Service Agreement
made as of 1 July, 2001; and
WHEREAS, the Executive and the Company desire to enter into a new
Employment and Service Agreement effective as of 1 January, 2005
NOW, THEREFORE, for good and valuable consideration, it is agreed as
follows:
1. TERM. Subject to the terms and conditions hereof, the term of
employment of the Executive under this Agreement shall be for the period
commencing on 1 January 2005 and terminating as provided in Section 6 hereof
(the "Employment Term").
2. DUTIES AND RESPONSIBILITIES. During the Employment Term, the
Executive shall serve as Chief Executive Officer of the Company. He shall report
to, and be subject to, the direction of the Company's Board of Directors and
shall perform such duties and responsibilities commensurate with his title and
position as may be assigned to
him from time to time by the Board of Directors. The Executive shall work on a
full time basis and shall devote his time, energy and attention to the business
of the Company.
3. COMPENSATION. In payment for the services to be rendered by the
Executive hereunder:
(a) The Executive shall be paid at the annual salary at a rate of DKK
1,800,000 (the "Annual Salary"), which shall be payable in equal monthly
payments in arrears on the last day of each month; the Annual Salary may be
increased from time to time at the sole discretion of the Board of Directors of
the Company;
(b) The Executive may at his option direct the Company to directly pay
certain expenses of Executive which may NOT be considered to be business related
expenses, such as family travel expenses. Executive shall advise the Company as
to that portion of his Annual Salary which he wishes to allocate to the payment
of such expenses
(c) In addition to the Annual Salary, Executive shall be paid a bonus
for each year or part thereof during the Employment Term, which bonus shall be
equal to 2.5% of the net income before taxes, if any, of the Company and its
consolidated subsidiaries for such year, as reported by the Company on its
annual report as filed with the United States Securities and Exchange Commission
or if the Company shall not be required to file such annual report, as reported
to the shareholders of the Company, as required by the laws of the Kingdom of
Denmark. Such bonus, if any, shall be paid within 20 days of the filing of such
annual report or the report to the shareholders, as the case may be.
(d) The Company hereby grants to the Executive, effective 17 May, 2005
an option to purchase 1,350,000 ordinary shares DKK1.25 of the Company (equal to
225,000 ADRs) at a price of USD $4.75 for each six ordinary shares DKK 1.25
(equal to
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one ADR), the closing price on an ADR on the NASDAQ Small Cap Market on 16 May,
2005, such option to expire on 30 April, 2015 and having such other terms as
will be set forth in an option agreement to be entered into between the Company
and the Executive.
4. EXPENSES AND BENEFITS.
(a) The Company shall, consistent with its policy of reporting and
reimbursement of business expenses, reimburse Executive for such ordinary and
necessary business related expenses as shall be incurred by Executive in the
course of the performance of his duties under this Agreement.
(b) Executive shall be entitled to holidays (vacation) annually, in
accordance with the provisions of the Holidays Act in force in Denmark, as the
same may be amended from time to time.
(c) The Executive shall decide the time of the taking of his holidays in
consultation with the Board of Directors which shall take into account the
requirements of the Company.
(d) The Executive shall not be paid any holiday allowance as may be set
forth in the Holidays Act, but in lieu thereof, the Company shall pay the
Executive DKK 50,000.00 in connection with his holidays.
(e) The Company shall provide the Executive with a company automobile
(the "Company Car"). The Company shall pay all expenses associated with the
operation of the Company Car, including fuel, maintenance, repairs and
insurance. The Executive may use the Company Car for private use at the
Company's expense.
(f) Upon termination of this Agreement for any reason, the Executive
shall at his sole option (to be exercised within 30 days of such termination) be
entitled to
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purchase the Company Car for an amount which is equal to the lesser of (i) the
book value of the Company Car on the books of the Company at the date of
termination or (ii) the fair market value of the Company Car at the date of
termination.
(g) The Company shall make an annual pension contribution for the
Executive which shall be equal to 15% of the Executive's Annual Salary.
(h) The Company shall pay for one or more life insurance and disability
insurance policies for the Executive, with the beneficiary of such policies to
be as named from time to time by the Executive. The amount and specific coverage
of such policies to be as chosen by the Executive; provided that the maximum
annual premiums to be paid by the Company for all such policies shall not exceed
DKK 100,000.
5. TERMINATION. The Executive's employment hereunder may be terminated
under the following circumstances:
(a) This Agreement shall not have a fixed termination date; the Company
may terminate this Agreement at its sole discretion as of the last day of any
calendar year by providing to the Executive written notice of such termination
at least 30 months in advance of such termination date (I.E. if the Company
wishes to terminate this Agreement as of 31 December, 2008 it must notify the
Executive of such termination prior to 1 July, 2006).
(b) The Executive may terminate this Agreement upon six months prior
written notice to the Company.
(c) This Agreement shall automatically terminate upon the death of
Executive in which event the Company shall pay to the widow and/or children of
the Executive an amount equal to one-half of the Executive's Annual Salary at
the time of his death.
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(d) The Company may terminate this Agreement at any time during the
Employment Term for "cause". For purposes of this subsection 5 (d) "cause" shall
mean (i) breach by Executive of any of the covenants set forth in Section 6
hereof, (ii) negligence or malfeasance on the part of the Executive in the
performance of his duties hereunder that causes material harm to the Company,
and (iii) the conviction of the Executive, by a court of competent jurisdiction,
of a felony or other crime involving moral turpitude. Termination pursuant to
this subsection 5 (d) shall be effective immediately upon giving the Executive
written notice thereof stating the reason or reasons therefor.
6. EXECUTIVE COVENANTS.
(a) The Executive agrees not to use or disclose, either while in the
Company's employ or at any time thereafter, except with the prior written
consent of the Board of Directors, any trade secrets, proprietary information,
or other information that the Company considers confidential relating to
processes, suppliers, customers, compositions, improvements, inventions,
operations, processing, marketing, distributing, selling, cost and pricing data,
or master files utilized by the Company, not presently generally known to the
public, and which is, obtained or acquired by the Executive while in the employ
of the Company, whether before or after the date of this Agreement.
(b) During the term of this Agreement and for a period of one year
immediately following the termination of this Agreement for any reason, whether
with or without cause, Executive shall not, directly or indirectly, solicit,
induce, encourage or attempt to influence any client, customer, employee,
consultant, independent contractor, or supplier of the Company to cease to do
business or terminate his employment with the
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Company, and shall not engage in (as a principal, partner, director, officer,
agent, employee, consultant or otherwise) or be financially interested in any
business which at the time is a direct competitor of the Company. Nothing
contained in this Section 6 (b) shall prevent the Executive from holding for
investment not more than ten percent (10%) of any class of equity securities of
a company whose securities are publicly traded or from engaging in any
activities that are not in direct competition with the business activities of
the Company. In case of any breach by the Executive of this Section 6 (b) the
Executive agrees that the Company may obtain a restrictive injunction without
security, and Executive agrees to pay to the Company all damages caused by such
breach, which damages shall include all expenses incurred by the Company in
obtaining any such injunction and/or damage award, including all reasonable
legal fees.
7. SUCCESSORS; BINDING AGREEMENT. This agreement shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any amount would still
be payable hereunder if the Executive had continued to live, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to Executive's devisee, legatee or other designee or, if there be
no such designee, to the Executive's estate.
8. AMENDMENT; WAIVER. No provisions of this Agreement may be modified,
supplemented, waived or discharged unless such waiver, modification or discharge
is agreed to in writing signed by the Executive and the Company.
9. APPLICABLE LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the Kingdom of
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Denmark. Any dispute between the parties with respect to this Agreement shall be
settled by arbitration in accordance with the Danish law on the Rules of
Conciliation and Arbitration and any award shall be final and binding upon the
parties.
10. NOTICES. Any notice, request, instruction or other document to be
given hereunder by any party to the other party shall be in writing and shall be
deemed to have been duly given when delivered personally or five (5) days after
dispatch by registered mail, postage prepaid, to the party to whom the same is
so given or made; to the address for such party as is set forth on the first
page of this Agreement or to such other address as the one party shall specify
to the other party in writing.
11. ENTIRE AGREEMENT; OLD AGREEMENT. This Agreement sets forth the
entire agreement of the parties hereto in respect of the subject matter
contained herein. The parties agree that the Old Agreement is hereby terminated
and canceled as of 1 January, 2005.
IN WITNESS WHEREOF, the parties have executed this Agreement on 17 May,
2005.
BY:
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