Exhibit 10(p)
MANAGING DIRECTOR AGREEMENT
between
H.B. Fuller GmbH
An der Roten Bleiche 2-3
D-21335 Luneburg
- - hereinafter called the "Company" - represented by its shareholder
H.B. Fuller Company
which is represented by
Mr. Albert Stroucken
and
Mr. Peter Koxholt
Moerser Str. 395
47803 Krefeld
- - hereinafter called the "Managing Director" -
1. Position
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Mr. Peter Koxholt
1.1 will become Managing Director (Geschaftsfuhrer) of the Company as of
January 1, 1999 or earlier if released from his current employment.
He is entitled to represent the Company with sole signature.
1.2 The Managing Director is Group President and General Manager Europe ASC; he
reports to the President and Chief Executive Officer of the H.B. Fuller
Company. His responsibility as Group President Europe includes strategic
management, coordination and integration of the European Fuller-Companies,
setting objectives for and operative control of the individual companies
and managing the resources that support the following fields:
- general management including acquisitions and investment policy
- marketing, sales promotion, competition analysis
- technical and product development, manufacturing processing, patents
- quality, environment, health and safety policy
- finance, data-processing, taxes and insurances, legal
- internal auditing
- personnel policy and organization development
1.3 The Managing Director has to observe the guidelines and instructions which
may be forthcoming from the shareholders meeting, all statutory provisions
and the provisions of the by-laws of the Company as well as the applicable
policies and procedures of H.B. Fuller Company.
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2. Remuneration
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2.1 The Managing Director shall receive as remuneration for his services a
gross annual base salary of
DM 500,000.--
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payable in thirteen equal installments becoming due at the end of each
month. The gross annual base salary includes the annual holiday allowance.
The base salary will be reviewed periodically, and may be increased, but
not decreased, from time to time during the term of this Agreement as
appropriate to reflect the Managing Director's contributions, the Company's
performance and market salary movements.
2.2 Additionally the Managing Director will participate in the Company's annual
incentive plan as established by the shareholder from year to year.
Currently, this plan provides for payment to the Managing Director of 35%
of his base if his performance meets targets as set by the Company and up
to 50% of base salary if his performance exceeds these targets.
For Fiscal Year 1999 a bonus payment of 35% of Base Salary is guaranteed
(i.e. DM 175,000.--), of which 50% is to be paid in January 2000 and 50% is
to be added to the "Transition Allowance" (re 9.2.-b).
Should performance warrant and should the Shareholder decide, the bonus
payment for fiscal year 1999 may be in excess of 35% of base; any such
excess would be paid along with the portion of the guaranteed bonus payable
in January 2000.
As per the appointment date the Managing Director will receive an initial
grant of 1,000 Restricted Stock Units in accordance with the 1992 Stock
Incentive Plan, but with the opportunity for these restrictions to lapse at
the end of four years from the date of employment based upon the
achievement of specific performance targets to be determined by the CEO no
later than January 31, 1999.
2.3 Furthermore the Managing Director will be eligible for all additional
benefits as granted to comparable members of management, which benefits may
be changed from time to time, including the participation in health and
retirement insurance contributions corresponding to the premium of the
statutory health and retirement insurance system.
2.4 In case of inability to work due to illness or accident the Managing
Director will receive after 42 days (for which period his legal claim for
continued payment of salary will endure) the difference between his regular
net income and the sickness benefit paid by social health insurance, but
not longer than for six months from the beginning of his inability to work.
2.5 In case of death of the Managing Director during service the Company will
pay the monthly salary for the respective month and additional three months
to the heirs.
2.6 The Managing Director will participate in the Company's Pension Plan
(att.).
Periodic adjustments of pension payments will be made in accordance with
standard practice.
The Managing Director will participate in H.B. Fuller Company's
Supplemental Executive Retirement Plan ("SERP") and shall be granted full
credit for all years of service with the prior employer for purposes of
eligibility. The benefit (the "SERP" Benefit) payable to the Managing
Director under the SERP shall be reduced by all other retirement benefits
received by the Managing Director from all other sources, including social
security; provided, however, that the SERP benefit shall not be less than
the amount that would have been paid to the Managing Director under the
Prior Employer's pension plan and/or supplemental executive retirement
plan, as in effect on the date of this Agreement, calculated as if the
Managing Director had continued in the employ of the Prior Employer during
the term of the Managing Director's employment under this Agreement. In
determining the amount that would have been paid to the Managing Director
under the Prior Employer's pension plan and/or supplemental executive
retirement plan, the Company may assume that the Managing Director's
compensation from the
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Prior Employer, and all other factors used to determine the amount of
such benefit, would have continued during the term of this Agreement at
the rate or rates in effect at the time of the Managing Director's
termination of employment with the Prior Employer.
If the Managing Director dies or becomes disabled before the age of 55,
the pension and/or disability benefits will be based on the number of
years of service the Managing Director would have reached at the age of
55.
2.7 The Company shall provide the Managing Director with an accident
insurance in accordance with the Corporate Business Travel Accident
Insurance Policy.
This insurance provides the Managing Director with a Class I coverage.
2.8 If as a result of the Managing Director's commencement of employment
hereunder, he does not receive from his Prior Employer any bonuses earned
but not received as of (resignation date) which he would have been
entitled to receive, the Company, upon proper documentation by the
Managing Director, shall pay to the Director such amount not to exceed
100.000 DM. This payment to be made as soon as practical after proper
determination.
2.9 The Managing Director will be eligible to participate in other long-term
incentive plans as offered to "like-managers" of the Company.
2.10 Life insurance benefits as well as medical benefits which the Managing
Director are provided by his current employer will be maintained under
this employment.
2.11 The above payments shall constitute compensation for all and any
activities and services of the Managing Director as member of the
Management, the Board of Directors, the Supervisory Board or any other
administrative or supervisory institution of the Company or one of the
affiliated companies.
3. Travel Expenses and Company Car
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3.1 Travel expenses shall be reimbursed upon presentation of invoices in
compliance with the applicable tax regulations and company policy.
3.2 The Managing Director is entitled to use a company car in accordance with
the applicable Company Car Policy and in compliance with the applicable
tax regulations and company policy.
The Company absorbs the costs for private usage. The Managing Director
carries the taxes associated with this benefit in kind.
4. Vacation
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The Managing Director is entitled to an annual vacation of currently 30
working days. Working days are all calendar days which are neither
Saturdays nor Sundays nor legal holidays at the place of business of the
Company.
5. Side Activities
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The Managing Director shall devote his efforts exclusively to the Company
and he shall promote the interest of the Company with his best ability.
He must not engage in any additional professional occupations against
remuneration or participation of any kind in any other business without
the consent of the shareholders meeting or the consent of his immediate
superior. The assumption of any professional or public honorary position
shall be reconciled with the immediate superior.
6. Secrecy and Inventions
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6.1 The Managing Director is committed, in particular with respect to the
period after termination of this agreement, to keep strictly secret all
confidential matters and trade secrets of the Company which will have
come to his attention within the scope of his activities for the Company
and
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which are not public domain. When leaving the Company the Managing
Director shall return to the Company all files and other documents
concerning the business of the Company in his possession -- specifically
all customer lists, printed material, documents, sketches, notes,
drafts -- as well as copies thereof.
6.2 1. All rights pertaining to inventions, whether patentable or not, and to
proposals for technical improvements made and to computer software
developed by the Managing Director (hereinafter jointly called
"inventions") during the term of this Service Contract shall be deemed
acquired by the Company. The Managing Director shall inform the
Company of any inventions immediately in writing and shall assist the
Company in acquiring patent or other industrial property rights, if
the Company so desires.
2. Subsection (6.2.1) above shall apply to any inventions no matter
whether they
a) are related to the business of the Company,
b) are based on experience and Know-how of the Company,
c) emanate from such duties of activities as are to be performed by
the Managing Director within the Company, or
d) materialize during or outside normal business hours of the
Company.
3. The Company's right to inventions acquired hereunder shall in no way
be affected by any amendments to or the termination of this Service
Contract.
The Company shall be entitled to claim and utilize all inventions
which have been achieved by the Managing Director during the term of
this Agreement and which are either developed from the activities and
services owed to the Company and the affiliated companies or
substantially based on experiences or works of the Company or the
affiliated companies. In detail, the provisions of the Employee-
Invention Act of 25.7.1957 shall apply according to the version in
force at the relevant time.
6.3 Any compensation for inventions will be made in accordance with the
Employee-Inventions Act of 25.7.1957 in the version in force at the
relevant time.
7. Duration
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7.1 This Agreement will be entered for a period of three years. If no notice is
given six months before the expiration date, this Agreement will become an
agreement for an indefinite period of time and can then be terminated at
any time by the Company by giving six months notice to a month end or by
the Managing Director giving three months notice accordingly.
The Managing Director's employment may be terminated at any time by the
Company for cause.
The occurrences of any of the following events or circumstances shall
constitute "cause" for termination,
a) The perpetration of defalcations by the Managing Director involving
the Company or any of it affiliates, as established by certified
public accountants employed by the Company, or willful, reckless or
grossly negligent conduct of the Managing Director entailing a
substantial violation of any material provision of the laws, rules,
regulations or orders of any governmental agency applicable to the
Company or its subsidiaries.
b) The repeated and deliberate failure by the Managing Director, after
advance written notice to him, to comply with reasonable policies or
directives of the Board.
c) The breach by the Managing Director of this Agreement in any other
material respect and the failure of the Managing Director to cure such
breach within 30 calendar days after the Managing Director receives
written notice of such breach from his immediate superior.
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In the event that the Company terminates the Managing Director's employment
for cause as stated above or, the Managing Director voluntarily terminates
his employment, the Company shall thereupon have no further obligation to
the Managing Director to pay or provide for any of the compensation and
benefits hereunder, except that the Managing Director will be entitled to
be paid and to receive all Base Salary earned through the date of the
Managing Director's termination; the Managing Director's annual incentive
compensation, if any, according to the plan as then in effect; and any
other benefits payable pursuant to the provisions of the Company's employee
benefit plans as then in effect.
7.2 In the case of termination other than for cause or voluntary termination by
the Managing Director, the Company shall pay the Managing Director all base
salary earned through the duration of this contract. In addition, the
Managing Director will receive any annual incentive compensation earned by
unpaid as of the date of termination. The Managing Director will continue
to be covered under all applicable health, welfare and retirement plans, as
he was covered immediately prior to his termination under this section,
through the duration of the contract. Furthermore, from the date of
termination through the duration of the contract, the Managing Director
will continue to accrue service under the Company's pension plan and SERP.
7.3 At any time following the termination of the contract for any reason, the
Managing Director may apply for retirement benefits in accordance with
Section 2.6.
7.4 The Agreement will end in any case at the end of the month in which the
Managing Director has completed the 65th year of his life.
8. Post-Termination Non-Compete Agreement
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8.1 In consideration of the Managing Director's activities for the Company and
his additional far-reaching European responsibilities which have provided
him and will further provide him with comprehensive business contacts and
knowledge in the field of the economic activities of the Company and/or
other companies of the Fuller Europe-Group, the parties agree to the
following terms and conditions of a post-termination non-compete agreement
which they acknowledge necessary and reasonable to protect the proper
business interests of the Company and/or other companies of the Fuller
Europe-Group.
8.2 The Managing Director shall, during a period of two years after the
termination of this Employment, neither on his own account nor in an
employment, advisory or any supporting capacity, neither occasionally or
permanently, neither directly or indirectly be engaged for any company or
affiliated company having business activities in the economic fields of the
Company and/or other companies of the Fuller Europe-Group ("competitive
business").
The Managing Director shall also not set up a competitive business or
participate in such competitive business, neither directly nor indirectly,
provided that such participation exceeds 5%.
8.3 This Post-Termination Non-Compete Agreement shall apply within the area of
Germany and Europe.
8.4 During the term of this Post-Termination Non-Compete Agreement the Company
shall pay to the Managing Director a monthly compensation in the amount of
the last monthly gross base salary, set out in 2.1, subject to the usual
tax and social security duties.
8.5 Any other income which the Managing Director receives for professional
activity or which he refuses to achieve in bad faith, shall be credited
against the compensation, set out in 8.4.
The Managing Director shall inform the Company of such other income and its
amount immediately and satisfactorily, including a formal and sufficient
declaration that his professional activity does not constitute a competing
activity according to 8.2, 8.3.
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Irrespective of the aforementioned, upon request, the Managing Director
shall inform the Company of any income and/or any opportunities of
professional activity.
In case the Managing Director should refuse such information, he shall not
receive the compensation set out in 8.4 for the time of such refusal. The
obligation of non-compete shall continue to apply.
8.6 The Company shall not pay any compensation if the Managing Director
receives pension payments out of an old age, invalidity and descendant's
pension system provided by the Company and/or any company of the Fuller
Europe-Group.
8.7 In case of the Managing Director's activity for a company of the Fuller
Europe-Group, the Company shall not pay the compensation set out in 8.4, if
the Managing Director's remuneration in respect of such activity exceeds
the amount of this compensation.
8.8 The Company shall be entitled to waive this Post-Termination Non-Compete
Agreement with immediate effect within two months after having received or
given notice of termination, in which case the Company will have no payment
obligation under 8.4.
8.9 If any regulation of this agreement of Clause 8 should be or become fully
or partly invalid, the validity of the remaining regulations shall not be
affected. The invalid regulation shall be replaced by such valid regulation
achieving the closest possible purpose of the invalid regulation. This
shall also apply if the invalidity of regulation should be based on reasons
of time, subject, area or compensation; in such case the legally admissible
shall apply.
Miscellaneous
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9.1 This contract will become null and void if the Managing Director is not
able to effectively assume the offered position as per January 1, 1999.
9.2 Relocation
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a) The relocation policy of H.B. Fuller Company will govern any
relocation required of the Managing Director as a result of his
joining the Company.
b) 50% of the guaranteed Incentive payment as referred to in 2.2. will be
added to the "Transition Allowance" [Relocation Allowance] payable at
joining date.
9.3 Amendments and additions must be in writing to be effective.
9.4 In the case of contradiction between both versions the German version shall
prevail.
9.5 The Agreement shall be subject to German law.
9.6 The court in which jurisdiction the Company falls, is the competent court.
9.7 The Collective Labour Agreement for university graduates in the chemical
industry will be used as a reference for the determination of the benefit
levels.
Date: October 15, 1998
/s/ Albert P.L. Stroucken /s/ Peter Koxholt
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H.B. Fuller GmbH, Luneburg
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