Exhibit 10.36
EMPLOYMENT AGREEMENT
This Agreement entered into by and between AMERICAN BANK NOTE COMPANY
GRAFICA E SERVICOS LTDA., a company organized and existing under the laws of the
Federative Republic of Brazil, with head offices at Rua Xxxxx Xxxx 146, Sao
Crisovao, in the City of Xxx xx Xxxxxxx, Xxxxx xx Xxx xx Xxxxxxx, Xxxxxx
(hereinafter "EMPLOYER"), and XX. XXXXXX XXXX, Brazilian citizen, married,
engineer, resident and domiciled in the City and State of Rio de Janeiro, at
Avenida Xxxxxx Xxxxx 620/1020 bearer of the Identity Card No. 3343401/IFP and of
Individual Taxpayers' Registration (CPF/MF) No 441604447-04 (hereinafter
"EMPLOYEE").
W I T N E S S E T H T H A T
WHEREAS, on January 31, 1996, the EMPLOYER and the EMPLOYEE entered into an
agreement denominated MEMORANDUM OF AGREEMENT whereby the EMPLOYER hired the
services of the EMPLOYEE for a period of three years ending February 1, 1999,
pursuant to the terms and conditions provided for therein;
WHEREAS the EMPLOYER and the EMPLOYEE wish to review the terms and conditions
provided for in the January 31, 1996 MEMORANDUM OF AGREEMENT to guarantee the
continuation of the EMPLOYEE's rendering of services to the EMPLOYER for an
additional term;
NOW, THEREFORE, the parties hereto agree to enter into this Employment Agreement
under the following terms and conditions:
1 - RENEWAL OF APPOINTMENT AND TERM
EMPLOYER hereby renews the EMPLOYEE's appointment as its President and
General Manager in Brazil for a period of four (4) years commencing on January
1, 1999, being the EMPLOYEE hereby authorized to use the title "President"
before third parties. The EMPLOYEE hereby accepts such renewal of his prior
appointment for the term provided for above.
2 - POWERS AND DUTIES
In his capacity, of EMPLOYER's President and General Manager, the EMPLOYEE
will have the powers provided for in the EMPLOYER's Articles of Organization, as
amended from time to time, and the duties as determined from time to time by the
majority quotaholder of the EMPLOYER. The EMPLOYEE will be responsible for the
overall management of the EMPLOYER on behalf of its majority quotaholder,
reporting directly to the representatives of the EMPLOYER's majority
quotaholders.
3- COMPENSATION
3.1 In his capacity of the EMPLOYER's General Manager, the EMPLOYEE will receive
a monthly salary of R$ 30,000.00 (thirty thousand reais), payable thirteen times
per year to include the mandatory thirteenth salary. This monthly salary will be
adjusted for inflation on an annual basis according to the index resulting from
the collective bargaining arrangement entered into by and between the union
representing the employees of the EMPLOYER and the EMPLOYER's business sector
representatives, or pursuant to any salary adjustment index generally applied to
the salaries of the employees of the EMPLOYER.
3.2 In addition to the fixed base salary provided for in item 3.1 above, the
EMPLOYEE will be entitled to a performance bonus not to exceed one time his
annual salary in effect at the time of the payment of the bonus. The bonus will
be payable pursuant to the terms and conditions set forth in the policy
governing performance bonus applicable to the executives of the EMPLOYER.
3.3 The EMPLOYEE will continue to be entitled to use a company car during the
term of this Employment Agreement. The EMPLOYER and the EMPLOYEE will choose the
type of car the EMPLOYEE will use during the term of this Employment Agreement,
as well as when the car being used by the EMPLOYEE shall be replaced by a new
one. The EMPLOYER will pay the car's insurance, regular maintenance costs and
fuel.
3.4 The EMPLOYEE will be entitled to a school allowance equivalent to US$18.000
(eighteen thousand U.S. dollars) per year. This amount will be paid to the
EMPLOYEE on a monthly basis in Reais based on the commercial rate of exchange in
effect on the date of payment.
3.5 The EMPLOYEE will have options to purchase 160,000 (one hundred sixty
thousand) shares of the common stock of AMERICAN BANK NOTE COMPANY CORPORATION,
vesting in equal installments in the first, second, third and fourth
anniversaries thereof, at an exercise price equal to 100% (one hundred per cent)
of the fair market value on the date of this Agreement, in the customary form
and subsequent to the customary conditions for options granted to other
executives of AMERICAN BANK NOTE COMPANY CORPORATION.
3.6 In addition to the EMPLOYEE's total compensation, he will be entitled to
medical and dental benefits, to be defined by the parties at the EMPLOYER sole
cost.
The EMPLOYEE will be solely responsible for any and all taxes, including
withholding taxes that may be levied on any of the payments made to the EMPLOYEE
hereunder.
4 - INCENTIVE PLAN
As a result of Section 4 of the January 31, 1996 Memorandum of Agreement
entered into by and between the parties, the EMPLOYEE became entitled to a
payment according to a formula stated in that agreement. The parties now agree
that this amount will be entirely paid to the EMPLOYEE thirty (30) days after
the publication of the audited annual results of 1998.
5 - WORKING TIMETABLE
The EMPLOYEE will work as a full time employee. However, according to the
needs of his position, the EMPLOYEE may vary his working hours. The EMPLOYEE
will not be entitled to any increase in his compensation as a result of
extraordinary working hours, as determined by article 62 (b) of the Brazilian
Labor Code (Consolidacao das Xxxx do Trabalho - "CLT").
6 - LOYALTY
During the term of this Agreement, the EMPLOYEE undertakes to render
services to the EMPLOYER to the best of his professional ability, devoting the
necessary time and attention to the full performance of any and all duties
hereunder. The EMPLOYEE shall not, during the term of this Agreement or any
amendment hereof, and for a period of two (2) years after the termination of
this Agreement, directly or indirectly, engage in any business, render services
to, be associated with (as an employee, owner, stockholder, partner, agent,
representative, officer or otherwise) any direct or indirect competitor, client
or supplier of the EMPLOYER or the EMPLOYER's quotaholders. A breach of this
Section will constitute a just cause (xxxxx xxxxx) for the EMPLOYEE's
termination, as determined by article 482 (c) of the CLT.
7 - CONFIDENTIAL INFORMATION
The EMPLOYEE shall not use or disclose to any third party any confidential
information concerning the business affairs, policies, trade secrets,
organization and other information regarding the EMPLOYER or the EMPLOYER's
quotaholders, its customers, suppliers, representatives or employees, which he
may acquire in the course of his activities under the terms of this Agreement.
The breach of the confidentiality obligation will be deemed a just cause (xxxxx
xxxxx) for the termination of this Agreement, as defined by article 482 (g) of
the CLT. The obligation referred to herein shall survive after the termination
of this Agreement for a period of 2 (two) years.
8 - NON RENEWAL
If, upon the expiration of the term provided for in Section 1 herein, the
EMPLOYER decides not to renew this Agreement, the EMPLOYEE will be entitled to
enter into a two-year Consulting Agreement with the EMPLOYER with a compensation
not lower than one half the EMPLOYEE's annual base salary provided for in this
Agreement, i.e., (R$15,000 (fifteen thousand reais) per month times thirteen
months per year.)
9 - TERMINATION
In the event the EMPLOYER terminates this Agreement other than for cause,
as defined in the CLT, or if the EMPLOYEE voluntarily terminates this Agreement
for "good reason" or "change of control", the EMPLOYEE will be entitled to
receive an indemnity equal to twice his annual base salary plus any accrued
annual incentive bonus. For purposes of this section, "good reason" shall mean a
change in the EMPLOYEE's duties or title without the EMPLOYEE's consent. A
"change of control" shall mean the loss by American Banknote Corporation of the
majority voting ownership of the EMPLOYER other than as a result of a public
offering, or a private placement of securities.
10 - FORCE MAJEURE
Neither party hereto shall be liable for failure to fulfill its obligations
hereunder for causes beyond its control, including, but not limited to, fires,
strikes, insurrection or riots. In such cases, neither party shall be liable in
any event.
11 - WAIVER
The waiver by either party of a breach or default of any of the provisions
of this Agreement by the other party shall not be construed as a waiver of this
or any succeeding breach of the same or other provisions, nor shall any delay or
omission by either party to exercise or avail itself of any rights, power, or
privilege that it has or may have hereunder operate as a waiver of any breach or
default by the other party.
12 - GOVERNING LAW
This agreement shall be governed by and interpreted under the laws of
Brazil and especially by the CLT.
13 - DISPUTES
Any disputes hereunder which cannot be amicably solved, by the parties
shall be decided upon by the competent court within the State of Rio de Janeiro,
Federative Republic of Brazil.
14 - ENTIRE AGREEMENT AND MODIFICATIONS
This agreement constitutes the entire agreement between the parties with
respect to the subject matter hereto and supersedes all prior agreements between
the parties, whether written or oral, relating to the same subject matter. No
modification, amendment or supplements to this agreement shall be effective for
any purpose unless in writing signed by an authorized representative of each
party.
* * *
And, being duly agreed, the parties execute this Agreement in triplicate before
the undersigned two witnesses below.
Rio de Janeiro, December ___, 1998.
AMERICAN BANK NOTE COMPANY GRAFICA E SERVICOS LTDA.
By: Xxxxxx Xxxxxxxx
Title:Chairman & CEO
XXXXXX XXXX
WITNESSES:
1. _______________
Name: ____________
2. _______________
Name: ____________
