DATED 6 February 2007
CDH Consilio GmbH
Xxxxxxxx 0
00000 Xxxxxxx
Xxxxxxx
(the “Company”)
– and –
Xx. Xxxxx X. Xxxxx
Xxxxxxxx 0
00000 Xxxxxxx
Xxxxxxx
(the “Director”)
| 1. |
General
Obligations of the Director |
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1.1. |
The
Director is granted individual power of representation. The shareholders’ meeting of
the Company may change the scope of the Director’s representational authority at any
time. The Director is exempt from the limitations imposed by Sec. 181 German Civil
Code (Selbstkontrahierungsverbot). The shareholders’ meeting of the Company
may change this exemption of Sec. 181 German Civil code at any time. |
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1.2. |
The
Director agrees to manage the business of the Company in compliance with the applicable
provisions of statutory law, the Articles of Association (Satzung) of the Company,
any Rules and Guidelines for the Management of the Company, including an Organizational
Plan (Geschäftsordnung) as well as the shareholder’s resolutions. The
Director requires prior explicit consent of the shareholders’ meeting with regard to
any unusual business dealings and actions that go beyond the scope of regular business of
the Company. The description of business transactions which require the aforementioned
consent may be extended or limited by way of a shareholders’ resolution at any time.
In accordance with his mandatory duties and the Articles of Association of the Company,
the Director will inform the shareholders’ meeting of any extraordinary business
occurrence. |
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1.3. |
The
Director shall work exclusively for the Company. The Director shall not be permitted to
pursue any other activity, paid or unpaid, without the prior approval of shareholder’s
meeting. This applies, in particular, to the following activities: |
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• |
foundation
and purchase of or participation in another enterprise or preparation of such
actions, be it directly or indirectly; |
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• |
participation
in supervisory boards or advisory boards of another enterprise; |
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• |
publications
or lectures, if the business interests of the Company or its affiliated companies are
affected; |
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• |
execution
of or participation in business dealings, be it directly or indirectly, that implicate
the risk of a conflict of the Director’s personal interests and the interests of the
Company. |
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The Director must notify the shareholders’ meeting in writing immediately, if he wishes
to assume such an activity. The Director may not take up such an activity without the
prior written approval of the shareholders’ meeting. The approval of the shareholders’ meeting
regarding the performance of any side activity may be revoked at any time, if necessary
with an appropriate notice period, if the business interests of the Company are affected
in any way. |
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The Director has disclosed to the Company that he and his wife, Xxx. Xxxxxx Xxxxx, are the
sole shareholders of, and that he is the managing director of, IntegraCare GmbH. The
Director warrants and represents that IntegraCare GmbH is a dormant company and is not,
and will not (for the duration of this Agreement and for a period of 12 months
thereafter), be involved in any business which competes with the business of the Company
or its sole shareholder, MTS Medication Technologies Ltd (“MTS”). |
2
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1.4. |
At
the request of the Company and after consultation with the Director, the
Director shall join and take offices such as a member of the
supervisory board or advisory board etc. in affiliated enterprises or
professional associations of which the Company is a member due to its
business activities. Unless the Company and the Director conclude
agreements to the contrary, payment for such activities is included
in the compensation agreed upon in section 3 of this Agreement. The
Director shall resign from any of the aforementioned offices and
activities if and when the Agreement terminates or at any earlier
point of time at the request of the Company. |
| 2. |
Contract
Period, Termination, Obligations in the Event of Termination |
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2.1. |
The
Agreement shall be entered into for an unlimited duration. After an initial
period of 18 months the Agreement may be terminated by either party
at any time with a notice period of 6 months. |
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The Agreement will terminate automatically upon expiration of the calendar month in which the
Director reaches the respective statutory retirement age required for full entitlement to
regular statutory old-age pension (currently at the age of 65). This Agreement will also
terminate automatically at any earlier point of time where the Director is entitled to
apply for statutory old-age pension benefits prior to the regular retirement age,
provided that the Director confirms the termination of the Agreement upon receipt of such
benefits within three years before the aforementioned early retirement date. |
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2.2. |
The
right to terminate the Agreement for cause without notice remains
unaffected. Such an important cause is deemed to exist, in
particular, if |
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• |
the
Director is removed from office due (Abberufung) pursuant to Sec. 38 Para 2
Limited Liability Companies Act (GmbHG) for cause (aus wichtigem Xxxxx), |
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• |
the
Director breaches the confidentiality or competition obligations pursuant to Sec. 9 of
this Agreement, |
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• |
the
Director violates internal restrictions regarding the management of the Company, provided
that such a violation causes detriment to the Company, or if the Director violates the
aforementioned restrictions repeatedly, |
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• |
the
Director fails to comply with instructions of the shareholders’ meeting, unless
compliance with such instructions would constitute an unlawful action. |
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2.3. |
Should
the Director wish to terminate the Agreement, his notice of termination
shall be addressed to the shareholders’ meeting of the Company.
Termination by the Company shall be made by notification of a
corresponding resolution of the shareholder’s meeting. |
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2.4. |
After
an ordinary or extraordinary termination of the Agreement, regardless of
which party has given notice of termination, the shareholders’ meeting
shall be entitled to release the Director from his obligation to
perform services for the Company at any time (Freistellung).
The Company shall continue to pay the contractual compensation until
termination of the Agreement. During the release period, Sec. 615
sent. 2 German Civil Code applies. |
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2.5. |
The
appointment as Director may be revoked at any time by way of a
shareholders’ resolution (Abberufung), notwithstanding
any claims pursuant to the Agreement. The revocation of the
appointment as Director shall be deemed as termination of the
Agreement as of the earliest point of time permissible. |
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2.6. |
The
Director is obligated to return all objects being Company property at the
Company’s registered office with no undue delay upon termination
of the Agreement at the latest. This obligation includes, in
particular, all business documents, data storage devices, as well as
copies thereof. Any right of retention of the Director regarding the
Company’s property is expressly excluded. |
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2.7 |
During
the term and for a period of 12 months after termination of the Agreement, the Director
shall not set up a business which competes with the Company or MTS in any market segment
or geographical market, to approach any customer of MTS or to begin working as an
employee, director, consultant or in any other role with any competitor company of MTS in
any market, or any parent or subsidiary of such a company, such companies to include but
are not limited to Omnicell, Cardinal, Venalink, Xxxx Pharma, Assist Pharma, Weigand,
Baxter, Tosho, JVM, Manrex, or ARC. |
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3.1. |
For
his services, the Director will receive an annual base compensation (the
„Base Compensation”) in the amount of € 75,000
gross, to be paid in 12 equal monthly instalments. The
instalments are payable in arrears at the end of each calendar month.
The Base Compensation also includes compensation for possible
overtime as well as work on weekends and public holidays. |
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The Company may annually review the Director’s compensation at the end of the year in
consideration of his performance as well as his obligations and duties. |
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3.2. |
In
addition to the fixed compensation pursuant to section 3.1. above, the
Director shall be entitled to an annual maximum bonus amounting to
25% of his Base Compensation, as set forth in Annex 1. The
payment and the amount of the Bonus as well as the achievement of the
business targets are determined by the shareholder’s meeting. |
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3.3. |
The
assignment of any Base Compensation or Bonus claim is prohibited. |
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3.4 |
Any
claim for work on public holidays, weekends or overtime work is compensated by the
payments as set forth in this section 3 of this Agreement. |
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4.1. |
Within
the scope of the compulsory old age retirement insurance (Rentenversicherung)
or an equal life insurance as well as the statutory or a private
health insurance (Krankenversicherung), the Company shall pay
out to the Director 50 % of the relevant contributions, but no more
than 50% of the amount which represents the maximum
contribution to statutory old age retirement insurance and health
insurance (Beitragsbemessungsgrenze). |
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5.1. |
For
the performance of his services under the Agreement, the Company has made an
adequate company car (BMW 525) available to the Director. The Company
is entitled to replace the company car made available to the Director
at any time by a different one of equal value from time to time. |
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5.2. |
The
Director may use the company car for private purposes to an adequate and
reasonable extent. The Director shall bear all taxes with respect to
the benefits deriving from the private use of the company car. The
Director is informed that the Company is obliged to withhold taxes
for the private use of the company car irrespective of whether the
Director is under the obligation to pay a compensation for the
private use of the company car to the Company. The Director will pay
an amount of Euro 100 per month to the Company for the private use of
the company car. A private use of the company car is assumed in all cases
where German tax law requires a withholding tax obligation (e.g.,
commuting expenses, double housekeeping). |
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5.3. |
In
the event the Director is released from his active service obligations
pursuant to Sec. 2.5 of this Agreement (Freistellung),
the Director will be required to return the company car to the
Company at the Company’s registered office immediately without
any right of retention or entitlement to compensation. |
| 6. |
Reimbursement
for Expenses |
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Notwithstanding the specific provisions for professional car use set forth in Sec. 5.2 of this Agreement,
travel and other expenses which the Director reasonably incurs in the course of
performing his services on behalf of the Company shall be reimbursed on the basis of
documented expenditures against presentation of corresponding vouchers and receipts in
compliance with applicable tax regulations and the Company’s internal travel
regulations (if applicable). |
| 7. |
Compensation
in Case of Illness, Accident, Death |
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7.1. |
In
the event that the Director is unable to work through no fault of his own due
to illness or an accident and provides a corresponding medical
certificate to the Company, the Company shall continue to pay the
Director the agreed Base Compensation pursuant to Sec. 3.1 of
the Agreement for the period of 6 weeks. After 6 weeks, the Company
shall award the Director a grant (Krankengeldzuschuss)
amounting to the difference between his net Base Compensation
pursuant to Sec. 3.1 of this Agreement and the sickness
allowance (Krankengeld) paid to the Director by the statutory
or private health insurance company. |
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The Company will pay the Base Compensation for a period of up to 4 months from the beginning
of the Director’s absence due to illness or accident, unless the Agreement
terminates at an earlier point of time. All payments made to the Director by health
insurance companies as well as all retirement pensions the Director receives shall be
credited against the Base Compensation paid by the Company pursuant to this Section. The
Director hereby assigns to the Company all future claims he may have third parties in
connection with possible temporary or permanent inability to work. The assignment is
limited to the amount of the payments to be made by the Company. |
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7.2. |
If
the Director deceases during the term of the Agreement, the entitlement to
Base Compensation expires on the day of the Director’s death.
The Director’s spouse and his legitimate children or coequal
children who are entitled to orphan pension shall be paid surviving
dependent’s pension for the rest of the month in which the
Director died in the amount of the difference between the
compensation paid to the Director until the day he died and the
compensation the Director received the month before. In addition, for
the period of 6 months, the Company shall pay surviving dependent’s
pension in the amount of the last received monthly compensation. |
5
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8.1. |
The
Director is entitled to an annual paid vacation of 25 working days, whereas
no more than 3 weeks vacation shall be taken consecutively. The
vacation days shall be determined in consultation with other managing
directors or executives, if any, or with the shareholders’ meeting. |
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8.2. |
If
the Director is not able to take his annual vacation because of interfering
Company interests, the Director shall either be compensated for the
remaining vacation, provided that the shareholder’s meeting
agreed to the waiving of vacation, or the remaining vacation shall be
transferred to the following year. The vacation shall forfeit, unless
it is taken by 31 March of the following calendar year at the latest.
The compensation is to be determined in accordance with the Base
Compensation. |
| 9. |
Confidentiality,
Competition and Contractual Penalty |
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9.1. |
Both
during the term of the Agreement and following any termination thereof, the
Director agrees to treat as strictly confidential all confidential
information of the Company and its affiliated companies. For the
duration of the Agreement, the Director will not (except with prior
written consent of the shareholders’ meeting) directly or
indirectly do or attempt to undertake, carry on or be employed,
engaged or interested in any capacity in any business which is
competitive with a that of the Company or its affiliates. |
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9.2. |
In
the event of any breach of this confidentiality and competition obligation as
set forth in section 9.1 of this Agreement, the Director shall pay a
contractual penalty (Vertragsstrafe) in the amount of one
gross monthly compensation to the Company. In the event of a
continuing breach which is not remedied, the contractual penalty
shall be due separately for each new calendar month of such breach.
The contractual penalty shall not prejudice the Company’s right to
claim any further damages in respect of losses suffered or to
exercise any other right available to it. |
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The Director shall bear all taxes with respect to compensation and other Company benefits
deriving from the Agreement as well as the social security contributions. |
| 11. |
Inventions
and Suggestions for Improvement |
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11.1. |
The
Director hereby assigns, insofar as legally permissible, all rights in
connection with inventions or proposals for technical improvements
the Director makes during the term of the Agreement to the Company,
which hereby accepts the assignment. The Director shall be deemed to
be adequately compensated for such inventions by way of the
compensation paid to him pursuant to the Agreement. |
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11.2. |
Insofar
as legally permissible, the Director agrees to assign to the Company all
inventions and proposals for technical improvements he makes during a
period of two years after the termination of the Agreement, provided
that the inventions and proposals for technical improvements result
from his contractual occupation or are based upon workings or know
how of the Company. The compensation as stipulated in the Agreement
includes payment for the assignment of the aforementioned rights. |
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| 12. |
Data
Processing and Data Protection |
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12.1. |
The
Director agrees to his personal data being stored, processed and used for
purposes of personnel administration and payroll accounting. |
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12.2. |
The
Director is committed to data secrecy pursuant to Sec. 5 German Data
Protection Act (Bundesdatenschutzgesetz) and acknowledges that
any breach may constitute a criminal offence. The Director may not
collect, process, disclose or make public, or use protected personal
data for other proposes than fulfilling his contractual obligations.
The commitment to data secrecy outlasts the term of the Agreement and
shall remain in effect, even after the service relationship
terminates. |
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13.1. |
All
mutual claims arising out of or in connection with the service relationship shall forfeit
unless they are asserted in writing to the other party to the
Agreement within 3 months after their accrual. |
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13.2. |
If
the other party to the Agreement explicitly refuses to fulfil the asserted
claim or does not respond within 3 weeks after the claim was alleged,
the asserted claim must be pursued in court within additional 6
months after the refusal or the expiration of the three-week period. |
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1. |
The
Agreement and its annex(es) contain all agreements between the Company and
the Director. It replaces any and all prior agreements or contractual
claims. In particular, this Agreement replaces and supersedes the
Director’s Service Contract (Geschaeftsfuehrervertrag)
entered into between the parties on 8 May 2001. No oral or other
supplementary agreements to this Agreement were concluded. |
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2. |
Changes
and amendments to the Agreement must be made in writing. No changes and
amendments may be made electronically (e.g. per facsimile or email).
Oral or written agreements purporting to revoke the written form
requirement are null and void. |
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3. |
The
effectiveness of the Agreement as a whole remains unaffected, if individual
provisions of the Agreement are or become invalid or if there are
omissions in the Agreement. In place of any invalid or missing
provision, a provision shall come into effect which reflects the
intended meaning and purpose of the invalid or missing provision in
consideration of the meaning and purpose of the Agreement. |
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EXECUTED:
by the
shareholder of the Company,
MTS Medication Technologies Limited,
acting by Xxxxx Xxxxxxxx, Director
by Xx. Xxxxx
X. Xxxxx
8
Annex 1: Bonus
The Company
may pay to the Director a performance related bonus (the “Bonus”) once per year
on or before 31 July for the previous fiscal year.
The amount,
if any, of such bonus payments remain at the sole and absolute discretion of the Company,
which may suspend or discontinue such payments at any time whether generally or in
relation to the Director. The Company will not, however, exercise its discretion to
suspend or discontinue a Bonus payment payable in relation to a previous fiscal year if
annual targets have been set for such previous fiscal year (in accordance with paragraphs
5 and 6 below) and those targets have been met by fiscal year end.
The level of Bonus ranges between 0
and 25 per cent of the Base Compensation.
If the Director receives any
such bonus payments, the Company is not obliged to make any further bonus payments and
any bonus payment will not be part of the contractual remuneration or fixed salary. If
the employment is terminated for cause without notice or notice is served by the Director
to terminate his employment (for whatever reason), the Director will not be entitled to
receive any bonus and payments in respect of any period save for any bonus payments which
are due and payable before the date on which the employment is terminated or notice is
served by the Director (as the case may be). If the Company serves notice to terminate
the employment of the Director and the annual targets are subsequently met in the course
of the Director’s notice period then, for the avoidance of doubt, the Director will
remain entitled to the payment of any Bonus due to him.
A maximum of 50% of the Bonus (i.e.
up to 12.5% of the Base Compensation) will be payable if the Company reaches or surpasses
budget EBITDA in the relevant fiscal year. The Company will determine budget EBITDA no
later than one month in advance of each fiscal year.
Another maximum of 50% of the Bonus
(i.e. up to 12.5% of the Base Compensation) will be allocated as separate sums, totalling
50% of the Bonus, each sum payable after the end of the fiscal year, provided a specific
target associated with that sum has been reached by fiscal year end. Such annual targets
which will be agreed for each fiscal year as part of the budget process and such
agreement to be completed before the beginning of the fiscal year.
9
