2nd April, 1992
Mr. Ulf Christian Tychsen
Farmisener Landstr. 28b
2000 Hamburg 67
Dear Mr. Tychsen,
I am enclosing the Contract of Employment and the Employment Agreement agreed
with you and would like to confirm once more the conditions not contained in
these contracts.
The target bonus under the "TWC Incentive Bonus Plan 1992" will be 50%
in your case. You will receive a guaranteed bonus of at least 20% of
your basic salary by 31.12.1993.
As already mentioned you can select a car of your choice up to a value
of DM 70,000.-- inclusive of VAT. I would be grateful if, in view of
long delivery periods, you could specify your choice as soon as
possible.
Consideration is being given at present to a plan to take out pension
insurance on behalf of managerial staff or to grant corresponding
pension concessions. In the event of such a general solution not being
realised, we hereby guarantee you that in your case a special agreement
will be reached for you which, upon your reaching the age of
retirement, will provide you with a pension which will amount to 20% of
your basic salary as it stands at that time. A prerequisite herefor,
however, is a ten year period of employment.
We will provide you with a company-owned apartment which you can use
free of charge for one year.
You are entitled to participate in the "TWC Inc. Non-Qualified
Stock Option". 8,000 shares will be set aside for you. Please
sign and return the attached agreement also.
Should you not avail of your car for weekend trips home, we will
provide you with a fly-and-save ticket during your first year.
We look forward to hearing from you and remain
Yours sincerely
(sgnd.]
Hans Wimmer
Enclosures
TWC Incentive Bonus Plan 1992
TWC Non-Qualified Stock Option Agreement
Organigrammie Europe
Contract of Employment
Employment Agreement
I accept the contents of this letter.
[sgnd.]
Ulf Christian Tychsen
Eschweiler, 2nd April, 1992
CONTRACT OF EMPLOYMENT
Dear Mr. Tychsen,
The following agreements are agreed in relation to your employment.
ss. 1 Position
------------
You shall be employed at managerial level in our company from 01.01.1993. It
shall be possible for the contract to commence at an earlier date. It is
intended to appoint you to the position of Managing Director. We reserve the
right to assign other appropriate managerial duties to you if required for
operational reasons.
You undertake to devote your full working capacity to the service of the
Company. The assumption of any ancillary profitable employment shall require the
express prior written agreement of the Management. This shall also apply for
involvement in other companies and for involvement in the supervisory organs of
other companies.
The period of employment shall commence on date of entry.
ss. 2 Remuneration
----------------
1.
As remuneration for your employment you shall receive a monthly salary of DM
21,000.-- gross (in words: twenty-one thousand German Marks), payable at the end
of each month. Payment for overtime required shall be regarded as having been
made on payment of the agreed remuneration.
2 .
In addition to your monthly remuneration you shall receive the following by way
of voluntary social welfare benefits:
- a Christmas bonus equivalent to a 13th month's salary;
- holiday money equivalent at present to the amount of DM 33.--
gross per day of holidays to which you are entitled;
- contributions to employees' savings schemes in accordance with the
terms of the respectively valid Employees' Savings Scheme Act currently
amounting to DM 78.-- gross per month.
Assignment of or pledging salary payments shall not be admissible without the
consent of the Company.
ss.3 Payment of Salary in the Event of Illness or Death
------------------------------------------------------
1.
In the event of non-culpable inability to work as a result of an accident or
illness you shall initially continue to receive your salary in accordance with
ss. 2 (1) for six weeks. Thereafter for a period of 6 months you shall receive
an allowance in addition to the cash payment provided by your legal health
insurance fund or provident association which, together with such sickness
benefit, shall be equivalent to the amount of your net payments under ss. 2 (1)
. In the case of private health insurance the daily sick benefit agreed with the
private health insurance company shall apply as a basis for calculating the
allowance, at least, however, a fictitious daily sickness benefit, which would
have been paid by the competent insurer under the legal health insurance scheme
in the event of compulsory health insurance.
Appropriate evidence of any sickness benefit allowances received must be
provided.
You shall assign to the Company any claims for compensation against
third-parties to which you are entitled in connection with the occurrence of
your inability to work to the amount of the allowance paid, and/or you shall
refund to the Company any payments made by third-parties subsequently in
relation thereto.
2 .
In the event of your death your surviving dependents (widow, dependent children)
shall continue to receive your salary as under ss. 2 (1) for a period of three
months, commencing with the end of the month during which the death occurred.
The Company shall be entitled to pay the benefit to any of the named persons
without any liability to the other surviving dependents.
ss. 4 Fringe Benefits
-----------------
1.
For the duration of the employment relationship the Company shall supply you
with an appropriate intermediate-sized car, which may also be used for private
journeys. Running and maintenance costs shall be borne by the Company. The
employee shall assume responsibility for paying tax on this benefit in kind
arising out of private use.
2 .
The Company shall take out an accident insurance policy in your favor:
in the event of death: DM 200,000.--
in the event of invalidity: DM 400,000.--
The insurance shall expire on the date of your departure from the Company's
services.
3.
During business trips you shall be insured against the loss of your luggage up
to a maximum sum of DM 10,000.-- under a group insurance policy which does not
name the parties covered individually. in the case of business trips abroad
there is also an additional foreign health insurance which also includes return
transportation to Germany if required for medical reasons.
ss. 5 Holidays
------------
According to the regulations currently applicable, you are entitled to 30
working days annual holidays. In the event of your entering and leaving the
Company during the year the holidays shall be calculated pro rata temporis.
ss. 6 Term of Contract and Termination
------------------------------------
This Contract shall be concluded for an indefinite period. The employment
relationship can be terminated by either party under observance of a period of
notice of 6 months to the end of each half-year. An extension of the periods of
notice as a result of legal provisions shall apply for both contractual
partners. Notification of termination must be submitted in writing. The Company
shall be entitled to suspend you on full pay following the issuing of notice.
The employment relationship shall cease, without any special notice being
required, on expiry of the month in which you complete your 65th yearlife.
The right to immediate termination for an important reason (ss. 626 BGB) remains
unaffected (BGB = German Civil Code).
ss. 7 Secrecy
---------
1.
You undertake to maintain secrecy regarding all business matters, in particular
trade secrets, knowledge of which was acquired by you during your employment.
The obligation to observe secrecy extends to all the trade secrets of
third-parties which the latter have made accessible to the Company subject to
the proviso that they be handled as business and/or manufacturing secrets.
You also assume this obligation on the part of the Company as your own personal
obligation both to the same extent and for the same term.
Insofar as legally admissible, the obligation to observe secrecy shall continue
to apply after termination of the employment relationship. Upon leaving the
Company you also undertake to return to the Company all the documentation in
your possession which related to your activities within the framework of the
employment relationship.
2.
Publications and lectures regarding materials, of which you
gained knowledge during your service or which are within the scope of your
duties, shall require the prior consent of the Management.
ss. 8 Final Provisions
--------------------
1.
No agreements were made apart from this Contract. Alterations of and amendments
to this Contract must be made in writing in order to be valid.
2 .
The Parties are agreed that, in accordance with ss. 26 of the Federal Data
Protection Act (BDSG), data regarding your person shall be stored for the
purposes of efficient operations. According to the same Act (ss.5 BDGS) you may
only process, make known, render accessible or otherwise use protected data
relating to persons in order to fulfil a specific function. Breaches of this act
are punishable according to ss. 41 BDSG, among others. The signature attached to
this Contract shall also apply as a declaration of consent to this obligation.
3 .
Should individual provisions of this Contract be or become invalid, this shall
not affect the validity of the remaining provisions. An appropriate provision
which approximates most closely to the economic objective being strived for by
both parties shall be agreed in place of the invalid provisions or for the
purpose of filling possible loopholes in the contract.
4 .
In the event of being appointed Managing Director, this Contract of Employment
shall be suspended for the duration of the validity of the Employment Agreement
of the Managing Director.
We hope that you will be happy with our Company and we wish you lots of success
in your work.
Yours sincerely
Pharma-Gummi Wimmer West GmbH
(sgnd.)
Hans Wimmer
(Managing Shareholder)
I accept the terms of this Contract.
[sgnd.]
Ulf Christian Tychsen
Addendum to. 1
-------------
to
--
Employment Agreement
--------------------
by and between
Pharma-Gummi Wimmer West GmbH, Stolberger Strasse 21-41, D-52249
Eschweiler, Germany, ("Company"), acting through its managing
director (Geschaftsfuhrer), Mr. Hans Wimmer,
and
Mr. Ulf Christian Tychsen, Farmsener LandstraBe 78b, 22359
Hamburg, Germany.
dated this 26th day of September, 1994
Preamble
--------
On (April 2], 1992, Mr.Tychsen and the Company entered into an employment
relationship based on Contracts of Employment dated April 2, 1992; the TWC
Incentive Bonus Plan 1992; The Non- Qualified Stock Option Agreement; the
Organigramme Europe; and a letter containing additional conditions dated April
2, 1992 (collectively the "Agreement").
Mr. Tychsen has not assumed any job, work or assignment which
would be in competition with the Company's business since his
employment with the Company.
Both parties hereto wish to specify the extent to which Mr. Tychsen is by
operation of law barred from engaging in any competitive activity during his
employment with the Company.
In view of the crucial importance of the proprietary information made accessible
to Mr. Tychsen by the Company, both parties hereto agree that Mr. Tychsen should
be subject to a reasonable non-competition covenant after the termination of his
employment relationship with the Company.
NOW, THEREFORE, the parties hereto agree on the following amendment to the
Agreement:
1. General Non-Competition Covenant
---------------------------------
1.1 During the term of his employment with the Company, Mr.
Tychsen will not assume any job, work or assignment in the
same business and territory in which the Company or an
affiliate of the Company is active (the "Company's
Business") , regardless whether such activities are actual
or potential pursuant to the Company's Articles of
Incorporation (Satzung). This restriction includes without
limitation
(a) any acquisition or holding of interests in any enterprise which
is engaged in the Company's Business ("Competitor"), either
directly or indirectly or by way of sub-participation
(Unterbeteiligung) or as silent partner (Stille Beteiligung),
(b) the performance of services for any Competitor or an affiliate
of any Competitor, either as employee, consultant, counsel, or
member of any board, regardless whether such services are
remunerated or not, and
(c) any self-employed competing activity.
The term "affiliate" shall have the meaning ascribed thereto in ss.15
of the German Stock Corporation Act (Aktiengesetz).
For the purposes of this clause, the territory in which the Company or
affiliates of the Company are active shall be Europe (including Russia
and Turkey) and North America.
1.2 The non-competition covenant shall not prevent Mr. Tychsen
from acquiring or holding shares of stock or other
securities traded on any recognized stock exchange, provided
that (a) such interest does not give Mr. Tychsen any
influence on the management of a Competitor and (b) the
interest does not exceed ten (10) per cent of the
outstanding securities.. This clause shall, furthermore, not
apply to any job, work or assignment assumed by Mr. Tychsen
in the interest and with the consent of the Company.
2 . Post-Employment Non-Competition Covenant
-----------------------------------------
2.1 For a period of one (1) year following the termination (Beendigung),
for whatever reason, of the employment relationship with the Company,
Mr. Tychsen may not engage in any competing activity as defined in
Section 1 hereof.
2. 2 For the term of this post-employment non-competition
covenant, the Company shall pay to Mr. Tychsen a
Compensation (Karenzentschadigung) in the amount of twelve
(12) times the last monthly gross salary pursuant toss.2 (l)
of the Agreement, but not less than the amount payable under
ss. 74b(2), (3) of the German Commercial Code (HGB) . The
Compensation shall be paid in bi-monthly installments at the
end of each two-months period after the day of the
termination in accordance with the pertinent tax and social
security laws, provided, however, that Mr. Tychsen discloses
to the Company all requisite information about his income
from other professional activities prior to the maturity of
the installment.
3. Penalty Clause
---------------
Notwithstanding any other rights of the Company, in each case of
violation of the foregoing non-competition covenants Mr. Tychsen shall
be liable to the Company for a contractual penalty (Vertragsstrafe) in
the amount of six (6) times the last monthly gross salary pursuant to
ss. 2(l) of the Agreement. In case of a continuous violation, the
Company shall be entitled to the full contractual penalty for every
month, or part of a month, during which Mr. Tychsen is in violation of
the non-competition covenant. For the enforcement of this contractual
penalty clause, the Company shall not be required to establish any
actual damages.
4. Termination
-----------
Notwithstanding the provisions contained in the Agreement, the company
may terminate the Agreement for cause in accordance with ss. 626 of the
German Civil Code (BGB) if Mr. Tychsen violates the non-competition
covenant pursuant to Section 1 hereof.
5. Final Provisions
----------------
5.1 Sections ss.ss. 60, 61 and 74 to 75d of the German Commercial Code
(HGB) shall apply to the extent not validly altered by the foregoing
provisions.
5.2 The Agreement and this Addendum have been drawn up in the
English language.
5.3 To the extent not affected by this Addendum, the terms and
provisions of the Agreement remain binding and enforceable.
5.4 The invalidity, illegality or unenforceability of any
provision in this Addendum shall not affect the validity,
legality or enforceability of the remaining provisions. The
invalid, illegal or unenforceable provision shall be
replaced by a valid, legal and enforceable provision
reflecting as closely as possible the economic intention
pursued by the parties with the former provision. The same
shall apply to issues the parties intended but failed to
address.
Place: Eschweiler Place Lionville
-------------------- -----------------------
Date: 20.09.94 Place 11.11.94
------------------- ------------------------
PHARMA-GUMMI WIMMER WEST GMBH
By: Hans Wimmer By: Ulf Tychsen
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