Exhibit 10.13
MANAGING DIRECTOR AGREEMENT
("Geschaftsfuhrer-Anstellungsvertrag")
between
Sapient GmbH, Speditionsstra(beta)e 5, 40221 Dusseldorf represented
by Xx. Xxxxx X. Xxxxxxxxx, as the representative of the shareholder's
meeting, c/o Sapient Corporation, 00 Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000
- hereinafter referred to as "the Company" -
and
Xx. Xxxxxxxxx Oversohl
x/x Xxxxxxx XxxX
Xxxxxxxxxxxxxx(xxxx)x 0, 00000 Xxxxxxxxxx
- hereafter the "Managing Director" -
SECTION 1 DUTIES, AUTHORITY
(1) Xx. Xxxxxxxxx Oversohl was appointed as Managing Director
("Geschaftsfuhrer") of Sapient GmbH in late 2000. Since October 2003 he
has represented the Company, having the responsibility (along with Xx.
Xxxxxx Xxxxxxx) to run the Company from day to day. The shareholder(s) of
the Company (hereinafter, "shareholders' meeting") reserve(s) the right to
appoint further managing directors and then confer a joint right to
represent the Company upon the managing directors as well as to have such
joint representation registered with the company register
("Handelsregister").
(2) The Managing Director shall manage the Company in accordance with the
applicable law, this Agreement, the Company's Articles of Association and,
insofar as any such regulations have been adopted, management regulations.
Any changes to the applicable law, the Articles of Association and/or the
management regulations become automatically binding and relevant for the
Managing Director's duties when they become effective.
SECTION 2 DURATION OF AGREEMENT
(1) This Managing Director's Agreement shall terminate at 30 June 2007. During
the period until 30 June 2007 the Company is entitled to terminate the
contract unilaterally regarding a period of notice of one (1) month prior
to the end of a month. In this case the Company is obliged to pay the
Managing Director the equivalent of 10 (ten) months of salaries (gross) as
a severance payment becoming due at the end of the employment relationship
(i.e., one month after the Company provides notice). The Company shall
always be entitled to release the Managing Director from rendering further
services, provided that the Managing Director's remuneration shall
continue to be paid during such period
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of suspension or release. In addition, the Managing Director shall be
entitled to terminate the agreement without cause, but only if (i) he
provides written notice to the Company; (ii) he presents the Company with
a suitable plan for effectively and efficiently transitioning his duties
and responsibilities; and (iii) he and the Company mutually agree to an
appropriate termination date, such agreement not to be unreasonably
withheld by the Company.
(2) In order to be effective, the notice of termination must be in writing.
(3) Either party's right to terminate this Agreement for good cause and with
immediate effect hereby remains unaffected. The Company may notably, but
not exclusively, terminate this Agreement, if the Managing Director:
(a) breaches any of his obligations and duties under this Agreement;
(b) is convicted of any crime involving moral turpitude, or the Managing
Director enters a plea of guilty or "no contest" with respect to the
foregoing;
(c) commits an act involving fraud, misappropriation of funds,
dishonesty, disloyalty, breach of fiduciary duty or other gross
misconduct against the Company; or
(d) fails to follow the instructions of the shareholders' meeting.
(4) The shareholders' meeting shall be entitled to release the Managing
Director from his duties for the period between the date on which notice
to terminate was given and the effective date of termination (i.e., one
month after the Company provides notice) upon further payment of his
salary by the Company and taking into account possible holiday
entitlements.
(5) The appointment of the Managing Director can be revoked at any time upon
the passing of a shareholder resolution, but without prejudice to the
Managing Director's rights for compensation resulting from this Agreement.
The revocation shall be deemed to be a notice of termination of the
Agreement effective on the next permissible date.
SECTION 3 WORKING HOURS, PLACE OF WORK
(1) The Managing Director undertakes to devote his full time, skill, efforts,
attention and working capacity to the interests and to the business of the
Company and, if required, to work in excess of the Company's regular
working hours.
(2) The Managing Director shall perform his obligations under this agreement
at the Company's statutory seat as well as at any other location out of
which the Company performs its business activities.
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SECTION 4 ADDITIONAL ACTIVITIES
The Managing Director agrees not to perform services for any other company
during the term of this Agreement. The carrying out of other gainful
employment is not permitted without the prior express and written approval
of the shareholders' meeting. The Managing Director is not allowed to hold
shareholdings in other companies which are direct competitors of the
Company, except for companies publicly listed at any stock exchange, and
then only if the holding does not exceed one percent (1%) of the other
company.
SECTION 5 FINANCIAL STATEMENTS, REPORTS
(1) The Managing Director is in charge of establishing the Company's annual
financial statements according to the applicable statutory provisions as
set out in the German Commercial Code ("Handelsgesetzbuch"). He shall
present these annual financial statements to the shareholders immediately,
in no event, however, later than on March 31 of the following year.
(2) The Managing Director shall provide to any other Managing Directors or the
Company any written reports of the Company's financial situation and other
reports as the shareholders' meeting may from time to time require or as
the Managing Director is aware to be customary within the Company's
affiliates. In particular, but without limitation, such reports shall
contain the following: work in progress, sales, profits and losses,
personnel expenses, claims, assets, liabilities, and cash flow. The
financial reports shall be submitted at the latest on the fifteenth (15th)
day of the immediately following month unless any other practice has been
established or turns out to have been established in this respect.
(3) The Managing Director shall be responsible for the supervision of the
Company's financial situation as well as of supervising any possible
insolvency of the Company. If the Managing Director becomes aware of a
possible insolvency of the Company, he undertakes to notify and consult
immediately with the shareholders' meeting and, if he deems appropriate,
to convoke a formal meeting of the shareholders. This SECTION 5 (3) shall
not be deemed to grant the Managing Director authority to convoke a formal
meeting of the shareholders other than as required under applicable law
for purposes of supervising any possible insolvency of the Company.
SECTION 6 INSPECTION OF THE BOOKS
The Managing Director shall permit the shareholders or their
representatives access to the books of the Company at any time.
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SECTION 7 REMUNERATION, OTHER BENEFITS
(1) The Managing Director shall receive a gross salary of Two Hundred Ten
Thousand Euros (210,000.00 (euro)) per annum (retroactive to December 1,
2004), payable in accordance with the Company's normal payroll schedule.
(2) The above-mentioned total remuneration includes compensation for all
overtime work and public holidays.
(3) Furthermore, the Managing Director will be entitled to a bonus of up to a
maximum of Ninety Thousand Euros (90,000.00 (euro)) per annum, which shall
be earned, accrued and/or paid in accordance with the Company bonus plan
then in effect for Managing Directors and/or Vice Presidents. Payment of
bonuses, ex gratia payments, emoluments, premiums and other special
allowances shall be discretionary. Even if such payments are made several
times, they do not create any right to continue receiving them in the
future.
(4) On or about July 1, 2005 the Managing Director shall receive a grant of
equity (the terms of which shall be determined at that time) in Sapient
Corporation equivalent to the then value of Fifteen Thousand (15,000)
shares of common stock of Sapient Corporation.
(5) The Company currently has no Company Pension Scheme.
(6) Furthermore, the Managing Director is entitled to all other benefits
available to the employees of the Company.
SECTION 8 ILLNESS/SICKNESS
(1) In case of a temporary incapacity to work caused by illness or other
reasons which are beyond the control of the Managing Director, the
Managing Director shall continue to receive remuneration pursuant to
section 7 (1) for the duration of his incapacity for a continuous period
of three (3) months.
(2) To the extent such inability to carry out work is caused by an event for
which the Managing Director is entitled to compensation for damages
against third parties, the Managing Director hereby undertakes to assign
such compensation to the Company in equal sum to the continued payment of
salary. In particular cases the Managing Director is obliged to sign a
written declaration of assignment.
SECTION 9 HOLIDAYS
The Managing Director shall have an annual holiday entitlement of 28
working days, excluding weekends. The Managing Director shall agree upon
the precise time of his holidays with the other managing directors.
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SECTION 10 EXPENSES
(1) In accordance with the German tax regulations, the Company shall reimburse
the Managing Director for travel expenses that are properly documented,
provided that the Company has previously approved the expenses.
(2) The reimbursement of other expenses shall be made in accordance with the
German tax regulations in its respective valid form.
SECTION 11 COPYRIGHTS/INVENTIONS
(1) Copyrights in software and any other intellectual property rights
developed by the Managing Director in fulfilment of this contract shall be
vested exclusively and without limitation in the Company. The Company is
entitled to assign rights of use to third parties or to grant to such
third parties non-exclusive licences. The contractual salary includes
consideration for the Company's rights of use. The Managing Director is
not entitled to copy such software for his own use.
(2) Any Managing Director's inventions are governed by the statutory
provisions of the Employee's Invention Act
("Arbeitnehmererfindungsgesetz") in the version applicable at the relevant
date.
SECTION 12 RESTRICTIVE COVENANT, SECRECY
(1) The Managing Director shall keep strictly confidential towards third
parties all confidential matters that he shall learn in his capacity as
managing director during his work for the Company, in particular in
relation to the balance sheets and negotiations and resolutions of the
shareholders. Such obligation shall survive his withdrawal. The duty of
confidentiality shall not apply to the submission of the balance sheet of
the Company to banks. Moreover, the Managing Director may disclose
confidential issues to any individual who is engaged in the profession of
attorney, tax advisor or accountant if and to the extent this shall be
necessary to protect his own equitable interest. Further releases from the
duty of confidentiality may be permitted through shareholder resolution.
(2) Furthermore, the Managing Director shall be subject to a post-contractual
non-competition restriction according to the Non-Competition Agreement
dated October 11, 2000, attached hereto as Appendix 1 and expressly
incorporated herein (the "TLG Agreement"), except that the following
amendments hereby are made to the TLG Agreement:
a. Section 1(a): The phrase "During the period ending two 2 years for
partners" shall be replaced with "During the period ending one year
for partners";
b. Section 2 (Contractual penalty) hereby is stricken in its entirety.
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SECTION 13 RETURN OF COMPANY PROPERTY
(1) Upon termination of Agreement or release according to section 2 (5) the
Managing Director is obliged to immediately return to the Company all
property belonging to the Company, including (but not limited to) all
documents, literature, mobile phones, laptops, customer and distributor
databases, sales figures, other databases, work and other equipments,
report templates etc. being in his possession or which has been made
available to him.
(2) Managing Director has no right of retention.
SECTION 14 SUBSTITUTION CLAUSE
This Agreement cancels and substitutes any previous letters of engagement,
or agreements or arrangements, whether oral or in writing, relating to the
subject matter hereof between the Company and the Managing Director. Any
other agreements and arrangements are deemed to be terminated by mutual
consent; in particular the undated employment contract between Sapient AG
and the Managing Director ("Anstellungsvertrag"), attached hereto as
Appendix 2, except the following amendments to this employment contract:
- Vereinbarung uber Vertraulichkeit, erfindungen und Nutzungsrechte
- Einwilligung zur Nutzung elektronischer Kommunikationsmittel
- Einwilligung zur erhebung, Verarbeitung und Nutzung
personenbezogener Daten
The aforementioned amendments will be effective just as they were. They
are enclosed as Appendix 2 a-c (respectively).
SECTION 15 FINAL PROVISIONS
(1) Amendments or modifications to this Agreement are not valid unless made in
writing. There are no oral agreements supplementing this contract.
(2) Should any provision of this Agreement be or become invalid in whole or in
part, the validity of the remaining provisions of this Agreement shall not
be affected hereby, provided that the remaining provisions do not
contravene the principles of good faith. Should any provisions of this
Agreement prove invalid, the parties shall be bound to agree to replace
the invalid provision by means of interpretation or of amendment of this
Agreement by a provision pursuing the same or as close as possible an
economic and legal purpose as the invalid provision.
(3) This Agreement shall be governed by interpreted and enforced in accordance
with the laws of the Federal Republic of Germany. The non-exclusive place
of performance under this Agreement shall be Dusseldorf.
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(4) The Managing Director assures that he does not breach any other agreements
by signing this agreement and that he is not restricted from signing this
agreement.
(5) Both parties herewith confirm the receipt of an original of this Agreement
executed by both parties.
Place: Cambridge/Dusseldorf Date: __04___ January 2005
/s/ Xxxxx X. Xxxxxxxxx /s/ Christian Oversohl
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Xxxxx X. Xxxxxxxxx Xx. Xxxxxxxxx Oversohl
Co-CEO, Co-Chairman Managing Director
Sapient Corporation
