EXHIBIT 10.1
SEVERANCE AGREEMENT
between
Xxxxxxx & Xxxxxx Automotive Holding GmbH
represented by its Managing Director Xxxxxx X. Xxxxx
- hereinafter called "Company" -
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and
Mr. Brain Xxxxx
residing at [...]
- hereinafter called "Xx. Xxxxx" -
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SECTION 1
TERMINATION
1.1. The parties agree that all service and employment relationships between
Xx. Xxxxx and the Company or any of the other entities of Xxxxxxx &
Xxxxxx Corp. shall expire with the effect of 28 February 2002.
1.2. Xx. Xxxxx shall resign as Managing Director of the Company as well as
of any other entity of Xxxxxxx & Xxxxxx Corp. he is appointed as
Managing Director or any other position as legal representative by the
signing date of this contract.
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SECTION 2
SEVERANCE PAYMENT
2.1. Pursuant to sections 9 and 10 of the Act Against Unlawful Dismissal Xx.
Xxxxx shall receive a severance payment of GBP 350,000 gross to
compensate him for the loss of his job. Any taxes regarding the
aforementioned payments shall be borne by Xx. Xxxxx.
2.2. Additionally the Company shall pay Xx. Xxxxx voluntary pension
contributions in the total amount of euro 31,060 net off income tax
pursuant to the INPDAI Pension Scheme for Managers in Italy.
2.3. All payments shall be made by 15 March 2002, but not before the
competent tax authorities has given binding information to the Company
on the legal obligation of the withholding taxes from this payments
(Lohnsteueranfrage). The Parties acknowledge that they will cooperate
in achieving the aforesaid binding information of the competent tax
authorities. In the case the German tax authorities find withholding
taxes to be paid, the agreement will need to be re-negotiated.
SECTION 3
REFERENCE AND SERVICE RECORDS
3.1. Xx. Xxxxx shall receive a qualified reference ("qualifiziertes
Zeugnis") after signing this agreement.
3.2. Upon expiration of his service contract, Xx. Xxxxx'x service records
(tax card, social security book), which have been duly filled out,
shall be returned to him.
SECTION 4
VACATION
The Company shall pay Xx. Xxxxx any unused vacation entitlement for the
years 2001 and 2002 21.5 days.
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SECTION 5
CONFIDENTIALITY OBLIGATION
5.1. Xx. Xxxxx shall keep strictly confidential any business and trade
secrets, in particular any confidential information, know how,
technology, business and/or market information and processes, formulae,
packaging, manufacturing processes and methods and organization,
customer documents and lists, orders, invoices, pricing methods, sales,
technical documents even after his service contract expires. This
obligation also applies towards former colleagues.
5.2. Pursuant to Section 5 Federal Data Protection Act ("BDSG") Xx. Xxxxx is
also obliged to keep any data secret. Accordingly, he is not permitted
to use, pass on or make available any protected personal data other
than for the rightful purpose for which it was intended. Pursuant to
Section 44 Federal Data Protection Act any violation of this obligation
is an offence.
5.3. Violations of this provision are considered to be a major breach of
contract as well as of the service contract and of this separation
agreement. In case of a breach of contract Xx. Xxxxx is obliged to pay
a contractual penalty of up to an amount of three months' gross wages.
Where violations continue, the contractual penalty will be due with
every month the violation continues. Additional claims for damages
shall remain unaffected.
SECTION 6
PROHIBITION OF COMPETITION
6.1. Xx. Xxxxx shall be obliged to honour the post-contractual prohibition
of competition pursuant to section 10 of the service contract between
Xx. Xxxxx and the Company of 7 June 2000 but he may be allowed to work
for a competitor in a non-related business with prior written consent
at the sole discretion of the Company not to be unreasonably withheld.
6.2. The parties agree that the compensation for the post-contractual
non-competition obligation pursuant to section 10.4 of the service
contract of 7 June 2000 amounts to GBP 150,000, which is payable in 12
equal monthly parts, starting at the end of March 2002 and any taxes
will be bore by Xx Xxxxx. This amount of pay will split and paid in 12
equal monthly instalments of euro 12,911.42 (equals to euro 154,937)
in Italy and GBP 4,753.17 (equals to GBP 57,038) in the UK.
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SECTION 7
COMPANY DOCUMENTS
7.1. Xx. Xxxxx shall return any documents, articles, keys, credit cards and
equipment belonging to the Company on immediately after signing this
agreement.
7.2. At the same time Xx. Xxxxx recognises that he is obliged to delete any
stored data and information he may have received during his service
relationship if this has not already been returned with the other
documents and articles pursuant to paragraph 7.1.
7.3 Xx. Xxxxx is entitled to acquire the company IBM PC, type <...>, and
printer, type <...>, he had been using during his service relationship,
for the fair market value. This fair market value will be announced by
the company on Xx. Xxxxx'x request. He has to declare within 14 days
following the signing of this agreement whether he likes to acquire the
IBM-PC and the printer. If Xx. Xxxxx does not declare to acquire the
IBM-PC and printer during the aforementioned notice period, he has to
return both items immediately after this notice period expires. Xx.
Xxxxx shall be entitled to acquire the IBM-PC and printer after he had
returned the respective company PC to have it checked by the EDP-staff
for any remaining data and documents relating to the company.
7.4 Xx. Xxxxx has no legal basis for claiming a right of retention to any
of these articles and documents.
SECTION 8
COMPANY CAR
8.1. Xx. Xxxxx is obliged to return the company car in good and working
order and the car documents and car keys which were made available to
him to at the place of business by, at the latest,
28 February 2003. This private use of the company car shall be granted
to Xx. Xxxxx as an additional severance pay (sec.2.1.). Xx. Xxxxx has
no legal basis for claiming a right of retention to the company car.
All costs and taxes arising from the use of the company car between
February 2002 and February 2003 shall be borne by Xx. Xxxxx.
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8.2. Xx. Xxxxx is entitled to acquire the company car for a fair market
value. He shall be entitled to do so until the return date stipulated
in paragraph 8.1 above.
8.3 The parties agree that a fair market value of the company car amounts
to Euro 33,000 by 28 February 2002. Xx. Xxxxx agrees to acquire the
company car by signing this severance agreement. Furthermore, the
parties agree that the fair market value price of Euro 33,000 shall be
reduced to Euro 25,000 to compensate Xx. Xxxxx for the private use of
the company car granted to him until 28 February 2003 in paragraph 8.1
as an additional severance payment added to the severance payment in
paragraph 2.1.
8.4 Any taxes regarding the private use of the company car shall be borne
by Xx. Xxxxx.
SECTION 9
STOCK OPTIONS
The parties acknowledge that Xx. Xxxxx has received from Xxxxxxx &
Xxxxxx Corporation 33,334 stock options that are vested and another
33,333 stock options that will be vested on August 2002. The parties
agree that Xx. Xxxxx will be entitled to exercise these stock options
under the applicable Xxxxxxx & Xxxxxx Corporation Option Agreement
pursuant to the 1994 Employee Stock Option Plan, dated August 1, 2000
and the said 1994 Employee Stock Option Plan of Xxxxxxx & Xxxxxx
Corporation. The parties acknowledge that these stock options are
subject only to the Xxxxxxx & Xxxxxx Corporation Stock Option Agreement
of 1 Augsut 2000 and the said 1994 Employee Stock Option Plan and are
governed under the laws of theses agreements.
SECTION 10
NON-SOLICITATION/NO-HIRING
The managing Director undertakes for a period of one year from the date
of expiry (2 February 2002), not to employ, offer to employ or solicit
the employment, of any person just before the date of termination was
as a managing director, executive employee, employee or adviser of a
group company of Xxxxxxx & Xxxxxx and with whom the managing director
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worked together in the 12 months prior to the date of expiry (whether
or not such person would commit any breach of the employment agreement
by legal service of the company).
SECTION 11
SETTLEMENT OF CLAIMS
The parties agree that with the fulfilment of the above-mentioned
obligations and the proper termination of the service relationship in
conformity with the terms of this agreement, any claims to which Xx.
Xxxxx may presently be entitled under the terms of his service contract
and as a result of its termination - irrespective of the legal grounds
on which such claims are based, be they known or unknown -, are hereby
settled. All payments under this agreement are granted under the
precondition that the Company does not get aware of any criminal
offences or irregularities relating to his duties under his service
relationship with the Xxxxxxx & Xxxxxx Group within a period of one
year following expiry date. Thus, in such case no further payments
under this contract and the service contract shall be made. In addition
Xx. Xxxxx has to remit all payments made under this agreement
immediately.
SECTION 12
SALVATORY CLAUSE
Should any clause of this agreement be invalid, this shall not affect
the validity of the remaining clauses. The parties undertake to replace
the invalid clause with a valid clause coming closest to the original,
but invalid clause.
2002, this 6 day of March 2002, this 6 day of March
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Xxxxxxx & Xxxxxx Automotive Holding GmbH Xxxxx Xxxxx
represented by the Managing Director
Xxxxxx X. Xxxxx
