Exhibit 10.1
MANAGING DIRECTOR AGREEMENT
("Geschaftsfuhrer-Anstellungsvertrag")
between
Sapient GmbH, Speditionsstra(beta)e 5, 40221 Dusseldorf
represented by Xx. Xxxx X. Xxxxxxx, 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
Xxxxxx Xxx. 00, 00000 Xxxxxxxxxx
- hereafter the "Managing Director" -
ss. 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 to run the
Company from day to day, among other duties. 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. The Managing Director shall perform any other duties
as directed by the Chief Executive Officer of Sapient Corporation,
including, at the time of the execution of this Agreement, as European
Business Unit Lead.
ss. 2 Duration of Agreement
(1) This Managing Director's Agreement is effective 1 July, 2007 and shall
terminate on 31 August, 2010. During the period until 31 August, 2010,
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 12 (twelve) months of base 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 of suspension
or release. In addition, the Managing Director shall be entitled to
terminate the agreement without cause by written notice to the Company
regarding a notice period of 3 months; and he and the Company can
mutually agree to a different appropriate termination date, such
agreement not to be unreasonably withheld by the Company. He shall
present the Company a suitable plan for effectively and efficiently
transitioning his duties and responsibilities
(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 for good cause,
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.
ss. 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
(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.
ss. 4 Additional Activities
The Managing Director is prohibited from engaging in any second
occupation that could interfere with his duties to Sapient, either for
remuneration or free of charge, as a self-employed person or for third
party, unless this has been approved in writing by the shareholders'
meeting. The written approval of the Company must also be obtained
prior to assuming office on supervisory boards of other business
enterprises and accepting honorary positions in organisations. The
approval granted (to assume an office) is unrestrictedly revocable at
any time; in the case of revocation, any prescribed termination notice
periods applicable to terminating the office will be observed.
ss. 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 ss.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.
3
ss. 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.
ss. 7 Remuneration, Other Benefits
(1) The Managing Director shall receive a gross salary of Two Hundred Forty
Thousand Euros (240,000.00 (euro)) per annum (retroactive to July 1,
2007), payable in accordance with the Company's normal payroll
schedule. The Managing Director's salary will be reviewed annually as
part of the total compensation annual review of Sapient Corporation's
Leadership Team.
(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
(i) a target of One Hundred Fifty Thousand Euros (150,000.00 (euro))
per annum for calendar year 2007, and (ii) a target of at least One
Hundred Sixty-Five Thousand Euros (165,000.00 (euro)) per annum for
each of calendar years 2008 and 2009. The Managing Director's bonus
will be reviewed annually as part of the total compensation annual
review of Sapient Corporation's Leadership Team. These bonuses 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) The Managing Director shall receive a grant of Forty Thousand (40,000)
restricted stock units ("RSUs") of Sapient Corporation common stock.
The grant date for these RSUs will be the first NASDAQ trading day in
the month immediately following the date on which the Compensation
Committee of the Board of Directors of Sapient Corporation approves the
terms of this Agreement. The RSUs will be subject to time-based vesting
over three (3) years, which will begin on 1 August, 2007 (the "Vest
Commencement Date"). Thirty-Three Percent (33%) of the RSUs will vest
on 1 February, 2009 (which is eighteen (18) months following the Vest
Commencement Date), and Sixty-Seven Percent (67%) of the RSUs will vest
on 1 August, 2010 (which is the third (3rd) anniversary of the Vest
Commencement Date), provided that the Managing Director is still
employed by the Company on such vesting dates. For this RSU grant to
become effective, the Managing Director must electronically approve (in
E*TRADE) Sapient Corporation's standard form of RSU Agreement.
(5) The Company shall contribute a premium of Twenty Thousand Euros (20,000
(euro)) per annum to a pension scheme for the benefit of the Managing
Director.
(6) In lieu of the Company providing the Managing Director with a car, the
Managing Director shall receive an additional monthly payment of One
Thousand Two Hundred Euros (1,200.00 (euro)) per month (retroactive to
July 1, 2007), payable in accordance with the Company's normal payroll
schedule.
4
(7) Furthermore, the Managing Director is entitled to all other benefits
available to the employees of the Company.
ss. 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
ss. 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.
ss. 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.
ss. 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 and are submitted in accordance with the Company's Travel &
Expense Policy.
(2) The reimbursement of other expenses shall be made in accordance with
the German tax regulations in its respective valid form.
ss. 11 Copyrights/Inventions
(1) Copyrights in software and any other intellectual property rights
developed by the Managing Director in fulfillment 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 licenses. 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.
5
(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.
ss. 12 Confidentiality, Non-Competition Covenants
(1) The Managing Director shall treat as strictly confidential all
confidential matters and business secrets of the Company or entities
associated with the Company, of which he obtains knowledge during
exercise of his duties for the Company (in particular procedures, data,
know-how, marketing plans, business planning, unpublished balance
sheets, budgets, licenses, pricing, costs and customer and supplier
lists) or which are designated as confidential by the Company. This
obligation continues beyond termination of this employment agreement.
(2) If the Managing Director culpably breaches the agreed confidentiality
obligation then regardless of his other rights, for every instance of
contravention the Employer shall be entitled to contractual penalty
amounting to up to one month's gross salary. The Employer's option of
claiming more extensive loss or damage through the breach shall remain
unaffected hereby. If he makes use of this right, any contractual
penalties already paid shall be set off.
(3) During the employment the Managing Director must not compete with the
Company or any related company (company of the same group). In
particular, the Managing Director must not provide services to a
competitor in the fields of activity listed below as a Managing
Director or as a self-employed person, nor must he set up or run a
competing business or own shares in such business. This does not apply
to the acquisition of shares of listed stock corporations for
investment purposes only. The Company's fields of activity are:
providing IT services, design of computer software and hardware.
(4) During the employment the Managing Director must not solicit a customer
of the Company or any related company nor directly or indirectly enter
into, enhance or deflect business relations to a customer as a
competitor to the Company or any related company in their fields of
activity. The Managing Director must not provide assistance to a third
party with any of the aforementioned actions.
(5) During the employment the Managing Director must not entice away
another Managing Director of the Company or any related company or
participate in any enticement.
(6) The non-competition, non-solicitation and non-enticement clause stated
in subsections 3 to 5 of this Section 12 applies to the territory of
the Federal Republic Germany as well as any territories outside
Germany, where the Managing Director worked during the last two years
prior to the termination of the employment.
(7) For each case of a violation of the non-competition, non-solicitation
and non-enticement clause stated in subsections 3 to 5 of this Section
12, the Managing Director shall be liable for a contractual penalty in
the amount up to one monthly salary gross. In case of a continued
violation, the contractual penalty becomes due again for each inchoate
month. The Company reserves the right to claim further damages.
6
ss. 13 Post-Employment Covenant
(1) Subsections 3 to 7 of Section 12 shall also apply for a time period of
12 months following termination of the employment, or for a shorter
period, as determined in accordance with the terms of this Agreement
(the "Post-Employment Covenant").
(2) In the event that the Company determines to enforce the Post-Employment
Covenant, the Managing Director shall receive a monthly compensation
amounting to 50% of the amount of his last monthly base salary (at the
time of termination) for the duration of the Post-Employment Covenant
(the "Post-Employment Remuneration"), provided that he abides by such
covenant.
(3) The Company shall have the right to waive the Post Employment Covenant
in its sole discretion provided that the Company shall provide the
Managing Director with at least six (6) months prior written notice
(the "Notice Period") of such waiver (according to sec. 75a HGB [German
Commercial Code] but with a permitted shorter period).
(4) The parties may at any time mutually agree to cancel the
Post-Employment Covenant with immediate effect. In such event, the
Company shall not be required to pay the Post-Employment Remuneration
and the Managing Director shall not be required to abide by the
Post-Employment Covenant.
(5) In the event that Managing Director challenges the validity or
enforceability of the Post-Employment Covenant, or violates the
Post-Employment Covenant, Managing Director shall not be entitled to
any Post-Employment Remuneration.
ss. 14 Return of Company Property
(1) Upon termination of Agreement or release according to ss. 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) The Managing Director recognizes that the objects and documentation
referred to above are the sole property of the Company or its
associated entities. The Employee has no right of retention over the
objects and documentation referred to.
7
ss. 15 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"), the Non-Competition Agreement dated October 11,
2000 and any other previous employment contracts as Managing Director
of Sapient GmbH.
ss. 16 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.
(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: Atlanta/Dusseldorf Date: March 15, 2008
/s/ Xxxx X. Xxxxxxx /s/ Xx. Xxxxxxxxx Oversohl
---------------------------------- -------------------------------
Xxxx X. Xxxxxxx Xx. Xxxxxxxxx Oversohl
President & CEO, Managing Director
Sapient Corporation
8
Annex 1 to Employment Agreement
Assent to record, process and use personal details
--------------------------------------------------
I, Xx. Xxxxxxxxx Oversohl, hereby assent to Sapient GmbH recording, processing
and using my personal details. This shall apply in particular to any and all
data connected with the employment relationship. To this end, I have informed
Sapient GmbH of the following personal details:
- Name
- Address
- Bank account details
- Date of joining the company
- Date of birth
My assent includes also the transmission of the data to companies
affiliated with Sapient GmbH, both at home and abroad, as well as external
service providers acting on behalf of Sapient GmbH. These include companies that
offer services to employees of Sapient GmbH (e.g. tour operators, administrative
bodies of pension and share ownership schemes).
The data shall only be collected, processed and used by Sapient GmbH and the
recipients for purposes connected with the employment relationship. This shall
not affect statutory or other legal requirements that permit the recording,
processing and use of personal details.
I hereby also assent to Sapient GmbH to pass on my stored skill profile in
particular to potential clients within proposals.
Dusseldorf, March 15, 2008
-----------------------------------------
(Place, date)
/s/ Xx. Xxxxxxxxx Oversohl
-----------------------------------------
Xx. Xxxxxxxxx Oversohl
9
Annex 2 to Employment Agreement
Assent to use electronic means of communication
-----------------------------------------------
I, Xx. Xxxxxxxxx Oversohl, have been informed by Sapient GmbH that the company's
electronic means of communications (e-mail, Intranet, Internet) may only be used
for office purposes and, within the customary scope, for private purposes (e.g.
online bank transfers).
I hereby consent to Sapient GmbH tracking its electronic communications systems
(e-mail, Intranet, Internet connections) in order to monitor compliance with the
above mentioned usage and the prevent unauthorised or improper use (e.g.
forwarding of business secrets, unauthorized use of business data, mobbing,
etc.).
To the extent that this is necessary for monitoring purposes, Sapient GmbH shall
be entitled to evaluate, process and use my personal data, and to transmit these
for data processing and utilization purposes to Sapient Corporation, 00 Xxxxx
Xxxxxx, Xxxxxxxxx, Mass., USA, its affiliates and to Sapient GmbH, Xxxxxxxxx.
00, 00000 Xxxxxx, Xxxxxxx.
The monitoring of the e-mail systems includes the e-mail address of both the
consignor and the consignee, the date and length of the e-mail as well as its
content. The monitoring of Intranet and Internet usage includes the date, the
time and duration of access by the employee as well as the Intranet and Internet
address and the user ID.
Dusseldorf, March 15, 2008
-----------------------------------------
(Place, date)
/s/ Xx. Xxxxxxxxx Oversohl
-----------------------------------------
Xx. Xxxxxxxxx Oversohl
10
