Service Agreement
between
Xxxxxxxx XxxX, Xxxxxxxxxx
Xxxxxxxx 000x
(hereinafter
referred to as: Company)
and
Xx.
Xxxxxxxx Xxxxx, Xxxxxxxxxxx 00, 00000 Xxxxxxxxxxx
(hereinafter
referred to as: Managing
Director or Xx.
Xxxxx)
Preamble
Xx. Xxxxx
has been appointed managing director of the Company by way of the shareholders
resolution with effect as of 1 November 2007. In this regard, the following has
been agreed upon:
§
1
Power
of Representation
(1) The
Managing Director has sole power to represent the Company.
(2) The
Company may at any time change the power of representation.
§
2
Management
of the Company
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(1)
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The
Managing Director shall manage the Company pursuant to the regulations set
forth in this Service Agreement, in the articles of association of the
Company, the rules of procedure for the Management of the Company in its
current version, if applicable, as well as the instructions of the
shareholders.
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(2)
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For
all business transactions and measures beyond the ordinary course of
business of the Company the Managing Director needs to receive the express
prior approval of the shareholders. These are in
particular:
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Ø
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Sale
and shut-down of the business of the Company or significant parts
thereof;
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Ø
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Establishment
of subsidiaries;
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Ø
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Acquisition
or sale of other companies or participations of the
Company;
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Ø
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Acquisition,
sale, or encumbrances of real property or rights equivalent to real
property as well as the obligation to carry out such business
transactions;
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Ø
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Acceptance
of sureties and guarantees as well as acceptance of any kind of
liabilities resulting from bills of
exchange;
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Ø
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Drawdown
or granting of credits or securities of any kind that exceed €
25,000 and do not belong to the ordinary course of
business;
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Ø
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Conclusion,
amendment or termination of agreements that burden the Company with more
than € 50,000 in each individual
case;
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Ø
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Employment,
promotion and dismissal of employees with an annual gross salary of more
than € 80,000;
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Ø
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Granting
and revocation of prokura and power of
attorney;
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Ø
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Granting
of pension promises of any kind.
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The list
of business transactions requiring prior approval of the shareholders may be
expanded or reduced at any time by way of shareholders resolution.
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(3)
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The
Company may at any time appoint further managing directors and resolve
rules of procedure for the management, stipulating the scope of duties and
responsibilities for each managing
director.
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§
3
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Term
of this Agreement
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(1)
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This
Agreement becomes effective on 1 November 2007 and has been entered into
for an indefinite period of time. The first six months of the employment
relationship are deemed to be the probation period. During this period the
employment may be terminated with a notice period of one month to the end
of each month. After expiration of the probation period, the notice period
shall be three months to the end of a
month.
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(2)
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This
Agreement shall end without notice of termination at the end of the month,
in which the Managing Director reaches the age of 65 or his full reduction
in earning capacity should be
declared.
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(3)
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The
right for termination without notice due to an important reason remains
unaffected. An important reason for the Company may be in particular the
Managing Director’s breach of the internal restrictions set forth for the
management in § 2 para. 2 of this
Agreement.
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(4)
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The
notice of termination shall be declared in
writing.
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(5)
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The
appointment as managing director may be revoked at any time by way of
shareholders resolution. The revocation of the appointment (recall) shall
be deemed to be the termination of this Agreement with effect to the next
possible date.
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(6)
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From
the date of receiving the termination – irrespective of which party gives
notice of termination - the Company may release the Managing Director from
his duties. All holiday claims shall be deemed satisfied with the release.
During the release period
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§
615 sentence 2 German Civil Code (BGB) shall
apply.
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§
4
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Remuneration
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(1)
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For
his services the Managing Director shall receive an annual fixed gross
remuneration of € 180,000.00 (in words: Euro one hundred eighty
thousand). The agreed annual fixed gross remuneration shall be payable in
twelve equal instalments, each to be paid at the end of a calendar month
reduced by taxes and contributions to social security. Insofar as the
service of the Managing Director starts or ends during a calendar year,
the annual fixed gross remuneration shall be due pro rata
temporis.
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(2)
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No
additional remuneration shall be paid for extra work or
overtime.
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(3)
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Additionally,
the Managing Director may earn a variable remuneration in case annual
targets are reached, that have been stipulated by the shareholders meeting
in agreement with the Managing Director. The annual variable gross
remuneration in case of 100 % fulfilment of the stipulated annual
targets shall be 30% of the annual fixed gross remuneration. In
case a contract year is shorter than a calendar year this amount shall be
due pro rata
temporis. The earned variable remuneration shall be due for payment
after determination of the audited financial statements for the concerned
calendar year. In case the Parties cannot agree on new annual targets for
the following business year, at least those targets shall be valid for the
following business year that are developed by way of adjusting the targets
of the previous year.
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(4)
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Subject
to the approval of the executive board of STAAR Surgical Company (Parent Company) the
Managing Director shall be granted 25,000 options for the acquisition of
shares in STAAR Surgical Company. The price for exercising the option
shall be the market value valid on the date the option has been granted,
unless a different price for exercising the option has been stipulated in
writing upon granting the options. The question whether the options have
reached the date for being exercised or utilized, the exercise or the
expiry as well as further rights and obligations relating to the options
shall be determined pursuant to the regulations of the current
stock-option-plan of STAAR Surgical Company, according to which they have
been granted. The Parties are in agreement, that for the rights and
obligations stipulated in the stock-option-plan the jurisdiction shall
apply, that is stipulated in the stock-option-plan
itself.
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§
5
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Working
Hours
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The
Managing Director shall work exclusively for the Company and shall do his utmost
to promote the Company’s interests. If necessary, the Managing Director shall be
at the Company’s disposal beyond the usual working hours and shall promote its
interests.
§
6
Non-competition
and Non-solicitation Clause
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(1)
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The
Managing Director undertakes not to be active during the term of this
Agreement, neither as free-lancer nor as employee, nor as contractor,
neither directly nor indirectly by way of participation, in any way as
competition or for a direct competitor of the
Company.
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(2)
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The
Managing Director shall not, neither during the term of this Agreement nor
after its termination, neither himself nor through others, neither
directly nor indirectly, solicit employees of the Company actively or
induce them to termination their employment agreement with the Company and
to conclude a new one with a company competing with the
Company.
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(3)
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The
non-competition and non-solicitation clause is also applicable in favour
of companies affiliated with the Company (§ 00 Xxxxxx Xxxxx Xxxxxxxxx Xxx,
XxxX).
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§
7
Secondary
Employment
Any
additional kind of remunerated or usually remunerated activity of the Managing
Director requires the express prior approval in writing of the shareholders
meeting.
§
8
Vacation
Entitlement
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(1)
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The
Managing Director is, on the basis of a working week of 5 days, entitled
to an annual vacation with pay of 30 days. Insofar as the service of the
Managing Director starts or ends during a calendar year, the annual
vacation entitlement shall be granted pro rata
temporis.
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(2)
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The
vacation has to be stipulated taking into account the interests of the
Company. The Managing Director will ensure that, also during his vacation,
he can be contacted at short
notice.
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§
9
Illness
In case
the Managing Director should be prevented from working, due to illness through
no fault of his own that prevents him from carrying out his tasks or any other
circumstance beyond his fault preventing him from rendering his services during
the term of this Agreement, the Managing Director is entitled to receive
continued payment of the remuneration pursuant to § 4 para. 1 of this Agreement
on a pro rata temporis
basis for a period of six weeks. The Managing Director shall assign to the
Company claims for indemnification towards third parties in the amount of the
continued remuneration paid to him.
§
10
Insurance
The
Company shall conclude an accident insurance in favour of the Managing Director
for the term of this Agreement covering accidents at work and accidents during
everyday life with a sum insured of €153,399 for the event of death and €
355,646 for the event of incapacitation.
§
11
Pension
Promise
The
Company shall, after the Managing Director has passed the probation period,
establish in his favour a pension plan by way of a direct insurance with annual
contributions in an amount of € 1.750,00 gross (in words: Euro one
thousands evenhundred fifty). Additionally, the Act on the Amendment of Company
Pension Schemes shall be applicable. The income tax eventually due on these
payments shall be borne by the Managing Director.
§
12
Reimbursement
of Expenses
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(1)
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Expenses
occurring during carrying out his tasks in the scope of this Agreement
shall be reimbursed to the Managing Director upon presentation of the
corresponding expense vouchers up to the maximum allowable amount for tax
purposes.
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(2)
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The
Company will, during the first twelve months of this Agreement,
participate in the monthly costs for renting accommodation situated near
to the seat of the Company up to a maximum amount of € 1,500.00 per month.
The actual costs shall be verified by a copy of the lease
agreement.
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(3)
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The
Company will, during the first twelve months of this Agreement,
participate in the costs for monthly travelling respectively flights to
the home of the Managing Director up to a maximum amount of € 1,200.00 per
month.
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(4)
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Should
the Managing Director during the first twelve months of this Agreement
move his residence to a place near the seat of the Company, the Company
will reimburse the Managing Director with costs occurring for the
relocation up to a maximum amount of € 15,000.00 upon presentation of
the corresponding expense vouchers. The relocation order may only be given
in agreement with the Company. The Managing Director shall previously
solicit the quotations of at least two transport companies. In case the
Managing Director’s Service Agreement should be terminated before the
expiration of one year after the date of relocation, he shall be obliged
to return the relocation costs to the Company. There is no repayment
obligation in case the Service Agreement is terminated by way of an
ordinary termination by the
Company.
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§
13
Company
Car
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(1)
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The
Company will put at the Managing Director’s disposal a company car for the
purpose of carrying out his contractual obligations. This car shall be an
upper medium-sized car (Mercedes E-class, BMW 5er-series, Audi A6). The
Managing Director has no right to claim any specific vehicle type or
model.
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(2)
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Additionally
to the utilization for business purposes, the Managing Director may – up
to a limited extent – use the car for private purposes. The non-cash
benefit for the private use shall be calculated pursuant to the currently
applicable tax regulations and shall be borne by the Managing
Director.
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(3)
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The
further details for the use of the company car are stipulated in a
separate agreement.
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§
14
Secrecy
During
the term of this Agreement and after its termination the Managing Director is
obliged to keep strict secrecy about all confidential information regarding the
business or particular matters of the Company and affiliated companies (§ 00
Xxxxxx Xxxxx Xxxxxxxxx Xxx, XxxX) and not to use this
information neither for his own purposes nor for third parties. The secrecy
obligation relates in particular to any strategic plans of the Company, all
information regarding products and product development and plans thereof,
pricing, customer and supplier relationships, other contractual relationships
and conclusions of agreements, marketing strategies, plans or analyses regarding
market potential, information regarding turnover, profit and productivity,
financing, fund-raising schemes or activities, personnel or personnel planning
of the Companies.
§
15
Return
of Documents
The
Managing Director shall, upon termination of this Service Agreement, return
without request all documents, deeds, records, notes, drafts or copies thereof,
irrespective of their data carrier, to the Company. He has no right of retention
regarding these documents towards the Company.
§
16
Contractual
Penalty
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(1)
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The
Managing Director shall pay to the Company a contractual penalty in case
he
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·
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breaches
the non-competition and non-solicitation clause pursuant to § 6 as well as
the secondary employment clause pursuant to § 7 of this
Agreement;
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·
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breaches
the secrecy obligation or his obligation to return the documents pursuant
to §§ 14 and 15 of this Agreement;
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·
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does
not take up his post or does not do so in due
time;
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·
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terminates
this Service Agreement not adhering to the applicable notice period;
or
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·
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gives
cause by his behaviour to the Company for an extraordinary termination of
this Service Agreement due to important
reason.
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(2)
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It
shall be in the Company’s equitable discretion to stipulate the amount of
the contractual penalty to be paid by the Managing Director pursuant to
above para. 1. In case of dispute regarding this discretionary decision
the competent court will reassess it. The maximum amount of the
contractual penalty will be € 50,000.00 for each individual case. In case
of a continuing breach the contractual penalty shall newly arise for each
started month. The Company reserves its right to claim additional
damages.
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§
17
Final
Provisions
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(1)
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The
Parties are in agreement that upon signature of this Service Agreement all
possible previous agreements relating to the service of the Managing
Director for the Company are invalid and replaced by this Service
Agreement. No further agreements beyond this Service Agreement have been
concluded.
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(2)
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Amendments
or supplements to this Service Agreement have to be made in writing and
require the express approval of the shareholders meeting in order to be
valid. The same applies to waiving this requirement. The electronic form
is excluded.
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(3)
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Should
individual provisions be or become invalid, this does not affect the
validity of the remaining provisions. Instead of the invalid provision or
in case of omissions in this Agreement a reasonable provision shall be
agreed upon, which corresponds most closely to the intended economic
purpose of the invalid provision respectively to the provision, which
would have been agreed upon by the Parties pursuant to the whole purpose
of this Agreement, if they had thought of this issue in
beforehand.
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| Place, Date Xxxxxxx, 0 October 2007 | Place, Date Mengen, 10/10/07 | ||
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/s/
H.M.
Blickensdoerfer
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/s/
Xxxxxxxx
Xxxxx
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Signature
Company
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Signature
of General Manager
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Hans
Blickensdoerfer
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Xx.
Xxxxxxxx Xxxxx
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General
Manager Domilens GmbH
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