Exhibit 10.51
EMPLOYMENT AGREEMENT
BETWEEN
Ciao AG
Xxxxxxxxxxxxxx 000
00000 Xxxxxxx, Xxxxxxx
- hereinafter ,,COMPANY" -
AND
Xxxxxxxxxx Xxxxxx Cartellieri
Xxxxxxxxx(xxxx)x 00, 00000 Xxxxxxx, Xxxxxxx
- hereinafter the "EXECUTIVE" -
SECTION 1
DUTIES
1.1 Xxxxxxxxxx Xxxxxx Cartellieri is currently appointed member of the
Management Board (Vorstand) of the Company. In the event the Company is
reorganized by being transformed or merged into a GmbH, or by having its
business transferred to a GmbH (which would then be the "Company" within
the meaning of this Agreement), it is anticipated that Xxxxxxxxxx Xxxxxx
Cartellieri will be appointed managing director (Geschaftsfuhrer) of such
GmbH. Within Ciao GmbH, the Executive shall be responsible for the Central
Services business unit, comprising Technology, Finance & Administration,
Legal and HR. Within the internal hierarchy of the Greenfield Group, the
Executive will have the title of Executive Vice President Corporate
Development and Strategy and will work closely with Greenfield's CEO in
evaluating and driving new strategic business opportunities. This
Agreement provides for the terms of employment under which he will
exercise the aforementioned functions or positions.
1.2 So long as the Company continues to have the form of a stock corporation,
the Executive shall report to the Supervisory Board (Aufsichtsrat) of the
Company. If the Company (or the company to which its business is
transferred) takes the form of a GmbH, the Executive shall report to the
shareholders or any body appointed for the purpose by the shareholders of
the Company. The body to which the Executive reports is referred to in
this Agreement as the "SUPERVISING BODY". Further functional reporting
lines within the Greenfield group may be determined from time to time by
the Supervising Body.
1.3 The Executive shall, internally together with other members of the
Management Board or managing directors, conduct the business of the
Company with the diligence of a prudent manager in accordance with all
applicable laws, the Articles of Association of the Company, any
management rules adopted by the Supervising Body, the instructions of the
shareholders,
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if applicable, and this Agreement. He shall promote the interests of the
Company and, to the extent consistent with the interests of the Company,
the interests of all companies affiliated with the Company within the
meaning of Section 15 of the Stock Corporation Act (hereafter referred to
as "AFFILIATES").
1.4 If requested by the Supervising Body, the Executive shall accept an office
as a member in a supervisory board or comparable supervising body in other
companies and senior management functions in Affiliates. If requested by
the Supervising Body, he shall resign from such functions at any time.
SECTION 2
TERM AND TERMINATION
2.1 This Agreement comes into effect as of the date when the majority of the
shares in the Company are transferred to the Purchasers as defined under a
Stock Purchase Agreement dated April 6, 2005. It shall continue for an
indefinite period of time and shall be subject to termination upon three
(3) months notice as of the end of a calendar month, which can however
only be exercised for the first time to the end of the twelfth month after
this Agreement comes into effect (i.e. this Agreement is only terminable
for cause within the first twelve months of duration).
2.2 Both parties may terminate this Agreement for an important reason (for
cause). An important reason exists in particular if the Executive breaches
the provisions of this Agreement or violates the restrictions which are
imposed on him by laws, by the Articles of Association, management rules
or valid instructions of the Supervising Body.
2.3 If his term as member of the Management Board or managing director is
terminated by revocation prior to termination of this Agreement, the
Company may relieve (freistellen) the Executive from his duties until the
end of the term of the Agreement or assign him with new duties which are
reasonable in light of the qualification of the Executive.
2.4 Any notice of termination shall be given in writing.
SECTION 3
REMUNERATION
3.1 The Executive shall receive an annual salary in the amount of E
155,704.45. This salary shall remain in effect until December 31, 2005,
after which time it will be reviewed by the Supervising Body for 2006 and
each subsequent year.
3.2 The annual salary shall be payable in twelve equal installments at the end
of each calendar month, after deduction of any amounts to be withheld
under law. For any part of a calendar year or calendar month, payment
shall be made only of an amount proportionate to such time.
3.3 In addition to the remuneration under Section 3.1, the Company shall pay a
yearly bonus in a maximum amount of E EURO 155,704.45 , to the extent the
targets set out in Schedule 3.3 hereto have been reached.
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3.4 The remuneration provided for in this Section 3 shall be a compensation
for all work of the Executive. Therefore, there shall be no additional
compensation for overtime, holiday or other extra work.
SECTION 4
EXPENSES; COMPANY CAR
4.1 The Company shall reimburse necessary and appropriate expenses, including
travel and business expenses in accordance with Company policy. As the
case may be, proof for the expenses shall be provided in accordance with
tax rules unless lump sum amounts can be reimbursed under tax law.
4.2 The Executive shall be entitled to the use of a car leased or acquired by
the company in the upper class segment (e.g. "Mercedes E-Klasse", BMW
"5er-Reihe"), which shall have a retail price, including all options and
upgrades of no more than E 65,000, which can also be used for private
purposes free of any charges for the Executive. The Company shall bear any
costs in relation to the company car such as insurances, taxes, fuel,
inspections and the like, except for private taxes to be borne by the
Executive in connection with the usage of the company car.
SECTION 5
VACATION
5.1 The annual vacation entitlement of the Executive amounts to 25 working
days (which term includes all days except Saturday, Sunday and official
holidays)
5.2 The timing of vacation shall be determined by agreement with the
Supervising Body, taking into consideration the business situation.
5.3 To the extent the Executive cannot take his vacation until the end of a
calendar year because of business or personal reasons, his vacation right
shall continue to exist until April 30 of the following year. If for
health reasons the vacation cannot be taken in part or in full until this
date, the right shall extinguish. There shall be no claim for a
compensation for vacation days not taken.
5.4 If the annual vacation cannot be taken because the employment is
terminated, the Executive shall be compensated.
SECTION 6
COMPENSATION IN THE EVENT OF SICKNESS
6.1 In case of sickness, the monthly payments will be continued for a period
of three months, but not for longer than until the term of the employment.
6.2 Any payments from third parties, e.g. insurances, shall reduce the
payments of the Company insofar as the aggregate payments from the
insurance and the Company would exceed the net amounts which the Executive
would receive pursuant to Section 4 if he would work.
6.3 Should the Executive die during the term of this Agreement, his wife or
other persons entitled to support (unterhaltsberechtigt) shall receive the
remuneration pursuant to Section 3.1 for a
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period of six months following the month of death. If at this point of
time his wife should already have deceased, any children entitled to
support shall obtain these payments.
6.4 The Executive hereby assigns to the Company his claims for damages which
he may have against third parties who have caused his inability to work to
the extent the Company makes payments under the above continuation rule.
He undertakes to provide to the Company any information which it may
require in connection with the prosecution of such claims and to support
it in pursuing them.
SECTION 7
ADDITIONAL ACTIVITIES
7.1 The Executive shall use his complete working capacity as well as his
knowledge and experience in the interest of the Company. He may freely
determine his working time. His working hours shall depend on the workload
and shall amount to not less than 40 hours per week.
7.2 Any other gainful activity shall require the prior consent of the
Supervising Body. The Executive undertakes to inform the Supervising Body
in advance in writing on any other activity that does or may require
consent.
7.3 The chairman of the Supervising Body may withhold or withdraw his consent
only if the relevant other activity as such or together with other
activities may in the opinion of the chairman of the Supervisory Body,
negatively affect the work of the Executive for the Company or other
interests of the Company or the Affiliates.
7.4 Publications and lectures regarding the field of activities of the Company
as well as accepting an office on supervisory bodies of other companies or
a honorary office in organizations shall require the prior written consent
of the Supervising Body except for lectures and publications of the
Executive of a general scientific nature which do not relate to the core
business of the Company or the Affiliates.
7.5 At the request of the Supervising Body which may be made at any time the
Executive shall resign from all offices he holds as a consequence of or in
connection with his employment with the Company.
SECTION 8
INVENTIONS AND SUGGESTIONS FOR IMPROVEMENT
8.1 During the term of this Agreement, the Executive shall promptly notify the
Company in writing on any invention made by him which is resulting from
his work with the Company or is based on know-how or work results of the
Company's business to a significant degree ("COMPANY RELATED INVENTION",
as defined in Section 4 of the Act on Employee Inventions -
Arbeitnehmerfindungen-Gesetz).
8.2 The Company may claim (in Anspruch nehmen) any Company Related Invention
by written notification to the Executive within four months after
receiving the notification from the Executive. Effective upon receipt of
such notification of the Company by the Executive, all rights in the
invention shall be deemed transferred to the Company. If the Company does
not claim
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the invention within such period of four months, the invention shall be at
the Executive's free disposal.
8.3 If during the term of his Agreement the Executive makes an invention which
is not a Company Related Invention (freie Erfindung within the meaning of
Sec. 4 of the Arbeitnehmererfindungen-Gesetz), he shall inform the Company
immediately in writing. If such invention falls into the field of activity
of the Company or an Affiliate, the Executive shall offer to the Company
an exclusive right to use the invention at reasonable terms in accordance
with market practice. The Executive may not use such invention during the
term of this Agreement unless the Company declines the offer in writing or
three months have passed since the notification was received by the
Company and the Company has not accepted the offer.
8.4 Any provisions of the Act on Employee Inventions not expressly referred to
above, including but not limited to the provisions on compensation
pursuant to Sections 9 ff. of such Act, shall not apply.
8.5 The Parties agree that the Company has full and exclusive rights to all
inventions, copyrighted works and other intellectual property rights made
or acquired by the Executive during the time of this employment by the
Company prior to the signing of this Agreement whether or not formalities
like those provided for in this Agreement had been complied with at the
relevant time or whether it would or would not be considered as a Company
Related Invention under the provisions of this Agreement.
SECTION 9
NON-COMPETE CLAUSE
9.1 During the term of this Agreement the Executive shall not become active,
neither directly nor indirectly, neither for his own account nor as an
employee, for a business which is directly competing, or where there are
concrete indications that it may competing, with the Company or an
Affiliate. The Executive shall also refrain from soliciting the employees
of the Company or its affiliates or SRVY and its affiliates. This
prohibition shall apply also to any consulting or other promoting of such
business, even on an intermediate basis, to the starting of any such
business and to the taking of any participation or interest in any such
business. The prohibition shall not apply to the holding of shares in
companies listed on a stock exchange representing less than one percent of
the share capital.
9.2 The prohibition in Section 9.1 shall continue to apply for a period of two
years following termination of this Agreement on the basis of the business
of the Company or an Affiliate carried out on the date of termination of
this Agreement (taking into account any business under development by
these companies to the extent known by the Executive).. Provided that the
Executive has been terminated without an important reason (for cause), and
has not resigned for "Good Reason", as defined below, the Executive shall
be entitled to compensation payments during such period which in each
month shall amount to 50% of one twelfth of the total remuneration base
compensation received by the Executive during the 12 preceding months
prior to the termination of this Agreement. The Company may waive the
prohibition provided
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for in this Section 9.2 at any time, in which case the obligation to pay
compensation shall cease [effective three months following receipt of the
notice of waiver]. Section 74c, para. 1 sentence1 and para. 2 of the
German Commercial Code(1) shall apply to the compensation claim.
9.3 Resignation for Good Reason. The Executive may resign for Good Reason
effective 30 days after giving the notice contemplated by this Section
9.3, unless the Company cures the event or condition constituting Good
Reason within such period. For purposes of this Section 9.3, "Good Reason"
shall mean any one of the following: (i) a material diminution of the
Executive's title and status as set forth in this Agreement or assignment
to duties and responsibilities inconsistent with those set forth in this
Agreement; (ii) the relocation of the Executive to any place 200
kilometers outside of the city of Munich, Germany(other than with
Executive's prior consent); or (iii) a substantial reduction of the
Executive's compensation package as set forth in this Agreement, unless
such a reduction is made by the Company ratably with all other executives
at similar levels of responsibility. Notwithstanding the foregoing, any of
the events described in clauses (i) through (iii) of this Section 9.3
shall constitute "Good Reason" only if the Company fails to cure such
event within 30 days after receipt from the Executive of written notice of
the event which constitutes Good Reason; and "Good Reason" under clauses
(i) through (iii) above shall cease to exist for an event on the 60th day
following the later of its occurrence or the Executive's actual knowledge
thereof, unless the Executive has given the Company written notice thereof
prior to such date.
9.4 Any exemptions from Sections 9.1 or 9.2 shall have to be agreed in writing
by the Supervising Body
SECTION 10
CONFIDENTIALITY
10.1 The Executive shall keep strictly confidential all information relating to
the Company and the Affiliates which becomes known to him during his work
for the Company. In particular he shall not disclose any company or
business secrets.
10.2 Information may only be disclosed to third parties in fulfillment of a
contractual obligation of the Company or if this is done in the interest
of the Company.
10.3 The obligations under this Section 10 shall continue to apply after
termination of the employment. The Executive acknowledges that he knows
Section 17 of the Act on Unfair Competition regarding the violation of
business and company secrets.
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(1) The provisions translate as follows: "The employee must accept a deduction
on the compensation being due of any earnings which he makes during the period
for which compensation is paid by otherwise employing his working capacity or
which he refrains from making in bad faith to the extent the compensation plus
such earnings exceeds the benefits he had received before by more than one
tenth....The employee shall upon request provide information to the employer on
the amount of his earnings."
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SECTION 11
CONTRACTUAL PENALTY
In the event of any breach of the obligations in Sections 9 and 10 of this
Agreement, the Executive shall pay a penalty in an amount equivalent to the
remuneration pursuant to Section 3.1 received during the twelve calendar months
preceding the breach or, if the breach is committed after termination, preceding
termination of the employment. In the event of a continuing breach, such penalty
shall be due for each month in which the breach occurs. The preceding provisions
shall not affect any other claims of the Company resulting from the relevant
breach. In the event that the Executive has made contractual payments for a
breach of the non-competition provisions of the Share Purchase Agreement between
the [purchaser] and the shareholders of Ciao, AG, then any such payment shallbe
used to offset the payments due under this section 11, provided that they are
due for the same calendar periods.
SECTION 12
RETURN OF DOCUMENTS
Upon request of the Company at any time, in any event upon termination of this
Agreement (in the case of SECTION 2.3 at the time of the relieving from duties)
the Executive shall return all documents, records, data, storage devices, other
objects and materials which he obtained or holds in connection with his
employment and shall certify in writing the completeness of the material
returned. With regard to this obligation, any right of retention
(Zuruckbehaltungsrecht) shall be excluded.
SECTION 13
INSURANCE
The Company shall obtain insurance for the benefit of the Executive against
accidents in the amount of E 500,000 for death and E 300,000 for disability and
professional liability insurance.
SECTION 14
ESTOPPEL (AUSSCHLUSS)
Any claims of the Executive resulting from or existing in connection with the
present Agreement which have not been raised in writing within six months of
their falling due and at the latest three months after termination of this
Agreement and, if the Company rejects these claims, which have not been pursued
in court within two months following receipt of such rejection, shall be
definitely excluded.
SECTION 15
MISCELLANEOUS
15.1 Any amendment, addition or cancellation of this Agreement shall be made in
writing in order to be effective. This also applies to this written form
requirement. Any oral agreements, also those made prior to this Agreement,
shall have no effect.
15.2 This Agreement shall be subject to German law.
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15.3 All notices of the Executive concerning this Agreement shall be addressed
to the Supervising Body.
15.4 The ineffectiveness of any of the provisions shall not invalidate the
remaining provisions of this Agreement. In such case a provision shall
apply which comes as closely as possible to the intent of the invalid
provision.
______________, __________2005 ______________, __________2005
Ciao AG
By:
/s/ Xxxx Xxxxxx /s/ Xxxxxxxxxxx Xxxxxxxxxxx
-------------------------------- ------------------------------------
[Name]
Chairman of the Supervisory Board
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SCHEDULE 3.3
XXXXXXXXXX XXXXXX CARTELLIERI, MANAGING DIRECTOR - EVP OF GREENFIELD ONLINE
GROUP, REPORTING TO XXXX XXXXXX, CEO XXXXXXXXXX ONLINE, INC.
Salary = EURO 155,704.45
Bonus potential at 100% = EURO 155,704.45
100% of Bonus or EURO 155,704.45 is based on the bonus program for senior
executives to be established by the Compensation Committee of the Board of
Directors of Greenfield Online, Inc. ("SRVY"). The bonus shall be pro-rated for
the partial year 2005, and the bonus amount and achievement targets shall be
re-established annually for senior managers of the Greenfield Online Group
SRVY's Compensation Committee.
The bonus attainment is to be paid quarterly but at a rate of 50% of what is
earned. The remaining 50% will be paid at the end of the year if the total
annual target is reached. If the target is exceeded then the bonus dollar
potential grows at the same percentage as the overachievement percentage of the
target. No bonus is due unless 90% of the target is attained. The bonus dollars
to be paid at a level below 100% are the same as the attainment percentage.
