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Exhibit 10.24
Employment agreement dated as of July 1, 1998
by and between Fabbri Artes Graficas Valencia SA
and Jose Saenz de Santa Maria
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DATED 1 MAY 1998
(1) FABBRI ARTES GRAFICAS VALENCIA S.A.
(2) JOSE SAENZ DE SANTA-MARIA
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SERVICE AGREEMENT
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CONTENTS
CLAUSE HEADING PAGE
1. JOB TITLE......................................................................................1
2. DURATION ......................................................................................2
3. HOURS OF WORK..................................................................................2
4. SALARY.........................................................................................2
5. COMPANY CAR....................................................................................3
6. PLACE OF WORK..................................................................................3
7. EXPENSES.......................................................................................4
8. ASSIGNMENT ....................................................................................4
9. RESTRICTIONS ..................................................................................4
10. SICKNESS AND SICK PAY..........................................................................5
11. TERMINATION OF EMPLOYMENT......................................................................5
12. NORMAL RETIREMENT AGE..........................................................................6
13. DISCIPLINARY AND GRIEVANCE PROCEDURE...........................................................6
14. CONFIDENTIAL INFORMATION.......................................................................6
15. JURISDICTION...................................................................................7
16. LANGUAGE.......................................................................................7
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THIS AGREEMENT is made the tenth day of July 1998
BETWEEN:
(1) DERRICK W LYON with Passport Number GBR 016240661 whose address is
at Nook House, Off Cliffe Lane, Acton Bridge, Northwich, Cheshire,
CW8 3QP, UK, acting as joint director of FABBRI ARTES GRAFICAS
VALENCIA, SA (the "COMPANY") with Tax identity code number C.I.F.
A-46030300, whose registered office is at Avda Comarques del Pais
Valencia 56, 46930, Quart de Poblet, Valencia, Spain; acting as
the representative of the sole director by virtue of the
appointment of EPL TECHNOLOGIES SRL as sole director, in a
Shareholders Meeting dated 10 July 1998 authorised by the notary
of Valencia Mr Carlos Pascual de Miguel, and registered with the
Commercial Registry of Valencia; and
(2) JOSE SAENZ DE SANTA-MARIA of lawful age, married (the "EXECUTIVE")
with National Identity Card number 50293753-K and address at Paseo
de la Isla 39, 2D, 09003 Burgos, Spain.
RECITALS
A) The Company is interested in entering into a service contract
appointing a managing director of the Company. The service
contract is regulated by the Real Decreto 1382/1985 of 1st of
August.
B) DERRICK W LYON as the representative of the Company, agrees to
enter into this Agreement on behalf of the Company.
C) Both parties acknowledge that each have the legal capacity to
enter into this Agreement, and that they enter into their
obligations freely.
NOW IT IS HEREBY AGREED as follows:
1. JOB TITLE
1.1 The Company will employ the Executive as Managing Director of the
Company. The Executive's duties will include all work normally
associated with his title and such additional duties as the
Company may reasonably require of him from time to time.
1.2 The Executive agrees to perform the post of Managing Director of
the Company, performing his functions with full autonomy and
liability which may only be limited at the instigation of any of
the joint directors of the company and the Chief Executive
Officer, EPL Technologies (Europe) Limited ("CEO Europe").
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1.3 Notwithstanding the provisions of Clause 1.1 the specific function
of the Executive will be Technical and Commercial Managing
Director.
2. DURATION
This Agreement has an indefinite duration. The Parties agree that
it is fully binding and as a consequence it entered into effect
from the 1st day of May 1998. Either party can terminate this
Agreement upon the giving of six months notice to the other party.
3. HOURS OF WORK
3.1 The Executive's normal working hours shall be from 9 am to 7 pm
Monday to Friday with 2 hours for lunch. The Executive will be
required to work any reasonable additional hours as are necessary
for the proper performance of his duties and with no entitlement
to over time.
3.2 The Executive will be entitled to thirty 30 days paid holiday per
calendar year, including all the Spanish national holidays.
3.3 Holiday entitlement may not be carried forward to the next
calendar year without the prior written consent of the Company.
3.4 As early as possible, (and in any event before making any
arrangements), the Executive should indicate his intended holiday
dates to his immediate superior and obtain his consent.
3.5 If the Executive ceases his employment during a calendar year his
holiday entitlement in that year will be allocated pro rata. The
Executive will report to anyone of the joint directors of the
Company and to the Chief Executive Officer, EPL Technologies
(Europe) Limited ("CEO Europe").
3.6 The Executive may subsequently be required to work for other
individuals in substitution for and /or in addition to the CEO
Europe.
4. SALARY
4.1 The Executive shall receive a basic salary at the rate of
20.000.000pts (twenty million pesetas) per annum gross to be paid
by equal monthly installments.
4.2 The Executive's salary will be reviewed annually in January,
however the Company does not have any obligation to award an
increase.
4.3 Any benefit received by the Executive hereunder will be disclosed
to the relevant tax authorities in compliance with the prevailing
legislation and the Executive hereby undertakes to be responsible
for the payment of any and all tax accruing by virtue of the
provision of such benefits.
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4.4 The Company and the Executive will agree a bonus to be paid
annually. The Executive's exact targets will be agreed on an
annual basis, and a bonus will be paid based on achievement of
these agreed targets. It is envisaged that a bonus of up to 10% of
the Executive's basic salary will be awarded for achievement of
the Company's sales targets and up to 10% of the Executive's basic
salary will be awarded for achievement of the Company's net profit
targets. An additional bonus will be awarded for achievement of a
net profit for the Company in excess of the net profit targets.
4.5 The Company has paid the Executive a subscription to the Company
health scheme for himself and his wife and children.
4.6 In addition, the Company has lent the Executive the amount of
450.000 pesetas. The Executive shall repay this amount over a
period of 12 months, with a deduction of 37,500 pesetas per month
from his net salary. This amount is only to be used by the
Executive for the payment of school fees or related costs for
members of his family.
5. COMPANY CAR
5.1 The Company has made available to the Executive for his business
and personal use a motor car of a make and model which is in line
with the Company's current policy. The monthly total cost of hire
of such a motor car shall not exceed 135.000 pesetas.
5.2 The Company shall bear the cost of issuing, servicing, taxing,
repairing and maintaining the vehicle and shall pay the petrol for
both business and private use.
5.3 Immediately upon the termination of his employment hereunder
(howsoever arising) the Executive shall if requested by the
Company return the car in good condition together with its keys
and all documents relating to it to the Company forthwith at its
principal place of business or as otherwise directed by the
Company.
5.4 Without prejudice to the provisions of Clause 5.3, in the event of
the Executive's employment being terminated by the Company, other
than for gross misconduct, the Executive may at the Company's
discretion be allowed to retain the car for his notice period.
Should the Executive not be required to work his notice he will be
responsible for the cost of routine servicing and petrol during
this period. Alternatively, the Company will compensate the
Executive for the loss of this benefit.
6. PLACE OF WORK
6.1 The Executive's place of work shall be in Valencia. The Company
may also require him to work at any other location either on a
permanent or temporary basis.
6.2 In the event of a permanent transfer being proposed by the
Company, the Company will provide the Executive with sufficient
information to enable him to make a decision as to the
desirability of such a transfer. This information will include all
aspects of remuneration, transfer expenses and all other related
costs.
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6.3 To enable the Executive to carry out his position as Managing
Director, the Company has assisted with the rental costs of a
house. This finance assistance cannot exceed 120.000pts (One
hundred and twenty thousand pesetas) per month. The Company will
pay 50% of the actual cost incurred in the first year of
employment, 25% in the second year of employment. No further
amounts will be paid after the third year.
6.4 The reasonable and directly incurred removal costs to its place of
work has already been born by the Company.
7. EXPENSES
7.1 The Company shall reimburse the Executive the amount of all
reasonable expenses properly incurred by him in the performance of
his duties, subject to compliance with the appropriate procedures
and to his production, if required, of appropriate vouchers or
receipts satisfactory to the Company.
8. ASSIGNMENT
8.1 The Company shall be entitled to assign or transfer its respective
rights and obligations arising under this contract to any of its
associates or related companies within the EPL Group of companies,
without the consent of the "Executive", provided that the Company
demonstrates to the reasonable satisfaction of the "Executive",
that the proposed assignee has adequate financial and legal
ability to observe and perform the obligations to be assigned.
9. RESTRICTIONS
9.1 In the event of the Executive resigning from his employment with
the Company the Executive shall not if requested by the Company
for a period of 12 months following the termination of his
contract of employment directly or indirectly:
(a) solicit or attempt to solicit the custom or business of
any third party who is a customer of the Company. For
the purpose of this clause "a Customer" is defined as
any third party who, in the preceding 12 months had
placed an order for goods or services with the Company;
and
(b) carry on or assist with any business related or similar
to the gas flame process of perforating plastic films,
the hot needle process or any other packaging or film
perforating or related techniques including any new
techniques developed or in the process of development
prior to the Executive's resignation. This clause shall
extend to the United Kingdom, and members of the
European Union, Morocco and the United States of
America.
9.2 Paragraphs 9.1(a) and 9.1(b) above, will also apply in the event
of the Executive being dismissed following action arising from the
Company's disciplinary procedures and the Spanish labour
legislation in force at that particular time, or if the Executive
is made redundant.
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9.3 If the company exercises its option under Clause 9.1(a) and
prevents the Executive from working for a third party who is
related to the Company's business as defined, the Company will pay
you the Executive 5,000.000 pesetas as compensation for preventing
him from working for such a third party during the 12 month
period.
9.4 In addition, if this agreement is terminated and the company
exercises its option under 9.1, the Executive will be bound by the
confidentiality letter, which is attached to this agreement as
Exhibit 1.
10. SICKNESS AND SICK PAY
10.1 If the Executive is absent from work due to illness or injury or
for any other reason he must notify his immediate superior or such
other person as may be notified to him for this purpose from time
to time before 10.00 am or as soon as reasonably possible of his
first day of absence and give the expected duration of his
absence.
10.2 If the Executive is absent from work for more than seven
consecutive days (including Saturdays and Sundays) due to illness
or injury he must obtain a doctor's certificate and produce or
arrange for it to be produced immediately to his immediate
superior or such other person as may be notified to him for this
purpose from time to time. If the Executive is absent further
thereafter, a doctor's certificate must be produced each seven
days.
10.3 If the Executive is absent from work due to illness or injury he
will be paid Company sick pay on the following basis:
(c) payment of his full basic salary until he receives such
benefits as he may be entitled to under the Company's
existing permanent health care scheme;
(d) any sick pay paid by the Company will include any
Statutory Sick Pay entitlement and will be reduced by
the amount of any social security benefits recoverable
by the Executive in respect of his illness or injury;
(e) Paragraphs 10.3(a) and (b) shall apply without
prejudice to the Spanish Labour Law in force.
11. TERMINATION OF EMPLOYMENT
11.1 Subject to Clause 2 the Executive's employment may be terminated
by the Executive giving the Company 6 months notice in writing. In
the event of non performance of this duty of notice, the Company
has the right to an amount equal to the corresponding salaries of
the period.
11.2 Subject to Clause 2 the Executive's employment may be terminated
by the Company giving the Executive 6 months notice in writing. In
the event of non performance of this duty of notice, the Executive
has the right to an amount equal to the corresponding salaries of
the period.
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11.3 On termination of employment, howsoever arising, or at any time
requested by the Company, the Executive shall immediately return
all relevant information, material, documents, and property
belonging to the Company and in the Executive's safekeeping
without retaining copies, samples or records thereof. In addition
the Executive is to be bound by the confidentiality letter which
is attached to this agreement as Exhibit 1.
11.4 This Agreement may be terminated by:
(f) the Company;
(g) the Executive of the Company
(h) In the event of termination by either the Company or
the Executive, Articles 10, 11 and 12 of Royal Decree
1382/1985 of August 1st, or any other Law which may
amend this from time to time shall apply to this
agreement.
Subject to clause 2 if the Company terminates the agreement the
Executive will be entitled to a compensation equal to 15 months'
salary in addition to the notice period agreed between the Parties
of this Agreement.
12. NORMAL RETIREMENT AGE
12.1 The Executive's normal retirement age will be 65 and his
employment will automatically terminate on the Executive reaching
this age, without prejudice to the Spanish Labour Law in force.
13. DISCIPLINARY AND GRIEVANCE PROCEDURE
13.1 Where the Company is dissatisfied with his performance it will
initially refer the matter for discussion between the Executive
and the CEO Europe. If this does not resolve the matter to the
Company's satisfaction then the Executive will receive a formal
written warning from the CEO Europe or the Board.
13.2 If the Executive is dissatisfied with any disciplinary decision or
if he wishes to seek redress for any grievance relating to his
employment, he should first apply in writing to the CEO Europe and
thereafter he may appeal in writing to the Board of Directors
within seven days of being notified by the CEO Europe of his
decision.
13.3 Clauses 13.1 and 13.2 shall apply without prejudice to the Spanish
Labour Law in force.
14. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY
14.1 The Executive will not, except in the proper course of his duties
to the Company either during or after the end of his employment,
divulge or communicate to any person, firm or company, or
otherwise make use of, any information of a secret or confidential
nature of
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which the Executive has taken into his possession during
his employment, which relates to the Company or any of its
associated companies or any third party.
14.2 The Executive acknowledges that all intellectual property rights
including all renewals and extensions thereof originated or
developed by him (whether alone or jointly with any person or
persons) at any time during his employment with the Company
whether before or after the date hereof shall belong to and vest
in the Company absolutely to the fullest extent permitted by law
and to such end the Executive undertakes, at the request and
expense of the Company, to execute all such documents and give all
such assistance as in the opinion of the Company as may be
necessary or desirable to vest any such intellectual property
rights therein in the Company absolutely and hereby assign by way
of present assignment of future copyright all copyright in any
copyright works produced or originated by him during his
employment.
14.3 The executive acknowledges to be bound by the terms of
confidentiality letter which is attached to this agreement as
Exhibit 1.
15. JURISDICTION
15.1 Agreement shall be governed by and construed in accordance with
the Spanish Labour Law in force and the parties agree to submit to
the non-exclusive jurisdiction of the Spanish Courts.
16. LANGUAGE
16.1 This Agreement has been drafted in the Spanish Language, a
translation into the English Language is attached hereto as
Exhibit 1. The Spanish version of this Agreement shall prevail in
all cases.
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IN WITNESS whereof the Company has signed this Agreement under the hand of
an authorised official and the Executive has executed this Agreement in
his own name on his own behalf
SIGNED by DERRICK LYON ) /S/ DERRICK W LYON
duly authorised for and on behalf of )
FABBRI ARTES GRAFICAS VALENCIA, SA )
(THE COMPANY) )
EXECUTED by JOSE SAENZ DE SANTA-MARIA
)
(THE EXECUTIVE) )
/s/ JOSE SAENZ DE SANTA MARIA
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EXHIBIT 1
CONFIDENTIALITY LETTER
To:Mr Derrick William Lyon
Joint Director of
FABBRI ARTES GRAFICAS VALENCIA, S.A.
Avda Comarques del Pais Valencia 56
46930 Quart de Poblet
Valencia, Spain
and
EPL TECHNOLOGIES INC
2 International Plaza
Suite 245
Philadelphia PA 19113-1507 USA
Date 1st May 1998
Dear Sirs
CONFIDENTIAL INFORMATION AND CERTAIN UNDERTAKINGS
1. DEFINITIONS
I agree that for the purposes of this letter the following definitions
will apply:
"advisors" will mean lawyers, accountants, auditors, financial advisors
and bankers;
"the Company" will mean the FABBRI ARTES GRAFICAS VALENCIA, S.A. and any
subsidiary, associated or holding company of the Company;
"Confidential Information" will mean all information of whatever nature
including without limitation all unpatented designs, drawings, data
specifications and manufacturing processing or testing procedures and
other technical business and similar information including all readable
or computer or other reactive readable data, logic, diagrams, flow
charts, coding source or object codes listing or other material relating
to or comprising software conceived, originated, made or developed by the
Company and its subsidiaries in written pictorial or oral form.
"Customer" will mean any person, firm or company who at any time during
the period of TWO years immediately prior to the Termination Date was a
customer of the Company being a person, firm or company with whom I
personally dealt or for whom I was responsible on behalf of the Company
during the said period.
"Entry into force" will mean the 1st May 1998.
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"Goods or Services" will mean any goods or services similar to or
competitive with those supplied by the Company at any time during the two
years immediately prior to the Termination Date and with the supply of
which I was concerned at any time during the said period.
"Key Person" will mean a person who is or was at any time whilst I was
employed by the Company:
(a) an employee, director, consultant or contractor of the
Company; and
(b) a person with whom I personally dealt during my employment
by the Company; and
(c) employed or engaged in a managerial or equivalent capacity
or in a more senior capacity.
"Key Supplier" will mean any person, firm or company who at any time
during the period of TWO years immediately prior to the Termination Date
was a principal supplier of the Company being a person, firm or company
with whom I personally dealt on behalf of the Company during the said
period of TWO years.
"Restricted Business" will mean the business of Packaging and Labelling
food products.
"Restricted Area" will mean any territory where I have been employed
under my Service Agreement at any time during the ONE YEAR immediately
prior to the Termination Date.
"Restricted Period" will mean for the purposes of this letter 12 months
immediately following the Date of Termination of my employment.
"Service Agreement" will mean my employment contract with the Company
dated first October 1997. .
"Termination Date" will mean the date on which my employment with the
Company terminates.
2. CONFIDENTIAL INFORMATION
2.1 I agree that all the Confidential Information and other
material of whatsoever nature made, originated or developed
by me in the course of and in connection with my employment
with the Company either before or after the date hereof will
belong to and rest in the Company absolutely to the fullest
extent permitted by law.
2.2 I undertake to keep in confidence the Confidential
Information of whatever nature relating to the Company
whilst I am a Director and/or employee of the Company as may
be provided to me (whether orally or in writing or in any
other manner).
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2.3 I undertake that after the Termination Date not to disclose
or publish to any person or negligently cause any
unauthorised disclosure of any information of a confidential
or secret nature which I may acquire one year before or in
the course of my employment with the Company (including
without limitation trade secrets, know how, inventions,
designs, processes, formulae, notations, improvements and
financial information) concerning the affairs or business or
products of the Company or of any of its or their
predecessors in business or of any third party to whom the
Company is under an obligation of confidence such as
suppliers, agents, distributors or auditors.
2.4 I further undertake that in the event that I cease to be
employed by the Company for whatever reason that I will:
(a) not divulge the Confidential Information to any person;
(b) treat all Confidential Information as strictly private and
confidential and will take all necessary steps (including
but not limited to those required by Spanish law) to
preserve such confidentiality on your behalf;
(c) return promptly to you upon demand the documents and
materials arising in relation to the Confidential
Information together with all copies or reproductions held
by me or my advisors.
3. UNDERTAKINGS
After the termination of my employment with the Company, I will not
either alone or jointly with or on behalf of any other person firm or
company, directly or indirectly as principal, partner, agent,
shareholder, director, employee, consultant or otherwise however:
(a) at any time during the Restricted Period carry on or assist
with or be interested in the carrying on of a Restricted
Business within the Restricted Area in competition with the
Company;
(b) at any time during the Restricted Period supply (or procure
or assist the supply of) any Goods or Services to any
Customer if such supply is in respect of Goods or Services
in competition with the Company;
(c) at any time during the Restricted Period canvass or solicit
the custom of (or procure or assist the canvassing or
soliciting of the custom of) any Customer if such canvassing
or solicitation is in respect of Goods or Services in
competition with the Company;
(d) at any time during the Restricted Period in competition with
the Company immediately following the Termination Date:
(i) offer employment to or employ or offer or
conclude any contract for services with or
solicit the employment or engagement of; or
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(ii) procure or assist any third party so to offer,
employ, engage or solicit:
any Key Person (whether or not such person would commit any
breach of his contact with the Company) unless such Key
Person had ceased to be employed or engaged by the Company
(as the case may be) more than 3 months previously;
(e) at any time during the Restricted Period in competition with
the Company canvass or solicit any Key Supplier to supply
Goods or Services to me or any person firm or company or
arrange for any Key Supplier to supply Goods or Services to
me or any person firm or company if such supply is in
respect of Goods or Services to be supplied in the
Restricted Area.
4. WAIVER
I acknowledge that no failure or delay by either of you in exercising any
right, power or privilege under this letter will operate as a waiver nor
will any single or partial exercise preclude any further exercise by
yourselves of any rights either of you may have under this letter.
5. INJUNCTION AND INDEMNITY
Without prejudice to any other rights or remedies either of you may have,
I acknowledge and agree that damages will not be an adequate remedy for
any breach by me of any of the provisions of this letter and accordingly
each of you will be entitled without proof of special damages to the
remedies of an injunction and other equitable relief for any threatened
or actual breach of the provisions of this letter by me.
I will indemnify each of you in respect of all damages, costs, claims,
demands and liabilities howsoever so arising out of any breach by me of
my obligations under this letter.
6. GOVERNING LAW
This letter will be governed by and construed in accordance with the laws
of Spain.
Yours faithfully
/S/ JOSE SAENZ DE SANTA-MARIA
JOSE SAENZ DE SANTA-MARIA
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