Exhibit 10.12
Employment Agreement
AGREEMENT made this 26th day of January 2000, by and between Xxxxxxx-Xxxxxx GmbH
(,,the Company"), and Xxxxxx X. Xxxxxxxxxxx (the ,,Executive").
The Company and the Executive wish to enter into an employment agreement on the
terms and conditions set forth below. Accordingly, and intending to be legally
bound hereby, the parties hereto agree as follows:
SECTION 1. Employment.
The Company hereby agrees to employ the Executive, and the Executive hereby
agrees to serve XXXXXXX TOLEDO, on the terms and conditions set forth herein.
SECTION 2. Term.
This Agreement enters into force as of January 1, 2000. It is of unlimited
duration.
SECTION 3. Position and Duties.
During the Term, the Executive shall serve as Head of the Laboratory Division
and as Member of the Group Management Committee of XXXXXXX TOLEDO and shall have
such responsibilities, duties and authority as he may have as of the date hereof
and as may from time to time be assigned to the Executive by the Board that are
consistent with such responsibilities, duties and authority.
SECTION 4. Place of Performance.
In connection with the Executive's employment by the Company, the Executive
shall be based at the principal executive offices of XXXXXXX TOLEDO in
Greifensee, Switzerland, except for required travel on XXXXXXX TOLEDO's business
to an extent substantially consistent with present business travel obligations.
SECTION 5. Compensation and Related Matters.
(a) Salary.
During the Term, the Company shall pay to the Executive an annual base salary at
a rate of CHF 276'000.-- or such higher rate as may from time to time be
determined by the Board, such salary to be paid in substantially equal
installments in accordance with the Company's payroll practices for its senior
executives. This salary may be increased from time to time in accordance with
normal business practices of the Company. Compensation of the Executive by
salary payments shall not be deemed exclusive and shall not prevent the
Executive from participating in any other compensation or benefit plan of the
Company. The salary payments (including any increased salary payments) hereunder
shall not in any way limit or reduce any other obligation of the Company
hereunder, and no other compensation, benefit or payment hereunder shall in any
way limit or reduce the obligation of the Company to pay the Executive's salary
hereunder.
1
Exhibit 10.12
(b) Bonus.
During the Term, the Executive shall be entitled to earn annual incentive
compensation in accordance with the POBS Plus Plan for Senior Management, as
attached hereto as Exhibit A1.
(c) Expenses.
(i) Expenses shall be reimbursed according to the Company expense regulations as
amended from time to time.
(ii) In addition the Executive is entitled to flat compensation for minor
expenses according to the Group Management Committee Europe Supplement to the
expense regulations, as amended from time to time, as attached hereto as Exhibit
B1.
(d) Other Benefits.
(i) The Company shall maintain in full force and effect, and the Executive shall
be entitled to continue to participate in, all of the Company's insurance
benefit plans and arrangements in effect on the date hereof in which the
Executive participates or plans or arrangements providing the Executive with at
least equivalent benefits thereunder (including, without limitation, the
Xxxxxxx-Xxxxxx Fonds pension scheme for senior management, and the Company's
accident plan and disability plan), provided that the Company shall not make any
changes in such plans or arrangements that would adversely affect the
Executive's rights or benefits thereunder; provided, however, that, such a
change may be made, including termination of such plans or arrangements if it
occurs pursuant to a program applicable to all executives of the Company and
does not result in a proportionately greater reduction in the rights of or
benefits to the Executive as compared with any other executive of the Company.
The Executive shall be entitled to participate in or receive benefits under any
employee benefit plan or arrangement made available by the Company in the future
to its executives and key management employees, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans
and arrangements. Nothing paid to the Executive under any plan or arrangement
presently in effect or made available in the future shall be deemed to be in
lieu of the salary payable to the Executive pursuant to paragraph (a) of this
Section.
(ii) The Executive shall be entitled to participation in the XXXXXXX TOLEDO
Stock Option Plan as may be amended from time to time.
(iii) Any payments or benefits payable to the Executive under this Agreement in
respect of any calendar year during which the Executive is employed by the
Company for less than the entire such year shall, unless otherwise provided in
the applicable plan or arrangement, be prorated in accordance with the number of
full and partial months in such calendar year during which he is so employed.
(e) Vacations.
The Executive shall be entitled to no less than 30 paid vacation days in each
calendar year. The Executive shall also be entitled to all paid holidays and
personal days given by the Company to its executives.
2
Exhibit 10.12
SECTION 6. Offices.
Subject to Sections 3 and 4, the Executive agrees to serve without additional
compensation, if elected or appointed thereto, as a director of any of XXXXXXX
TOLEDO's group companies, and in one or more executive offices of any of XXXXXXX
TOLEDO's group companies.
SECTION 7. Termination.
a) This Agreement may be terminated by either party with or without cause giving
twelve (12) months notice to the end of a calendar month, subject, however, to
the provisions allowing for immediate termination according to Article 337 of
the Swiss Code of Obligations (,,Article 337").
b) The Executive may terminate his employment under Article 337 in case of
failure by the Company to comply with any material provision of this Agreement.
SECTION 8. Compensation upon Termination.
During the notice period, the Executive is entitled to full compensation as
defined in Section 5 of this Agreement and in the annexes / exhibits therein
referred to.
SECTION 9. No Mitigation or Offset / Noncompetition.
During notice periods, the Company may waive the services of the Executive. If
the Company so decides, the Executive shall have no duty to mitigate damages by
seeking another employment or otherwise, nor shall the amount of any payment or
benefit due under Section 5 be reduced by any compensation earned by the
Executive as the result of an employment by another employer, by retirement
benefits (other than as paid by the Company or under Company benefits schemes)
or by offset against any amount claimed to be owed by the Executive to the
Company. While the Executive is employed by the Company hereunder and for a
period of twelve (12) months after the termination of the Executive's
employment, the Executive shall not knowingly engage in or be employed by any
business anywhere in the world which competes with the principal businesses of
the Company or its affiliates as conducted at the date of such employment
termination.
SECTION 10. Successors; Binding Agreement.
(a) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and / or assets of the Company, by agreement in form and substance
satisfactory to the Executive, to expressly assume and agree to perform this
Agreement in same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of the
Company to obtain such assumption and agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and on the same
terms as he would be entitled to under Sections 7 and 8 hereof if the Company
had terminated his employment under Section 7 (a) hereof. As used in this
Agreement, ,,Company" shall mean the Company as herein before defined and any
successor to its business and / or assets as aforesaid which executes and
delivers the agreement provided for in this Section 11 or which otherwise
becomes bound by all the terms and provisions of this Agreement by operation of
law.
(b) If the Executive should die after the giving of notice pursuant to Section 7
but while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this
3
Exhibit 10.12
Agreement to the Executive's devisee, legatee, or other designee or, if there be
no such designee, to the Executive's estate. If the Executive should die before
the giving of such notice under Section 7 and while he is employed pursuant to
this Agreement, the Company shall continue to pay to the Executive's estate his
salary for the period of six months from the date of such death and a pro rata
portion of the bonus, if any, payable for the year in which the Executive died.
SECTION 11. Notice.
For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or (unless otherwise specified)
mailed by US or Swiss certified or registered mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Executive:
Xx. Xxxxxx X. Xxxxxxxxxxx
Xxxxxxxxx
7243 Pany
Switzerland
If to the Company:
Xxxxxxx-Xxxxxx XxxX
Xx Xxxxxxxxx
0000 Xxxxxxxxxx
Xxxxxxxxxxx
Attn.: Chief Executive Officer
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
SECTION 12. Miscellaneous.
No provisions of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing signed by the
Executive and such officer of the Company as may be specifically designated by
the Board. No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement. Insofar as this
Agreement does not stipulate anything else to the contrary, the General Rules of
Employment (,,Allgemeine Arbeitsvertragliche Bestimmungen / AVB") of the Company
shall be applicable. The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of Switzerland.
4
Exhibit 10.12
SECTION 13. Validity.
The invalidity or unenforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
SECTION 14. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original but all of which together will constitute one and
the same instrument.
SECTION 15. Disputes.
All disputes between the Executive and the Company concerning the terms and
conditions of this Agreement shall be brought before the ordinary courts in the
Canton of Zurich, Switzerland.
SECTION 16. Entire Agreement.
This Agreement sets forth the entire agreement of the parties hereto in respect
of the subject matter contained herein and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereto; and any prior agreement of the parties hereto in respect of
the subject matter contained herein is hereby terminated and canceled.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date and
year first above written.
Xxxxxxx-Xxxxxx GmbH,
by: .........................
Xxxxxx X. Xxxxxxx
by: .........................
Xxxxx Xxxxxx
by: .........................
Xxxxxx X. Xxxxxxxxxxx
5
