Exhibit 10.8
In Madrid, on 30 April Nineteen hundred and ninety-eight.
TOGETHER
Of the one part, Ansola Acquisition Corporation, S.R.L., with its registered
office in Poligono Industrial Oalarza. s/n, Eixebarria (Vizcaya) and Fiscal
Identification Number B-48966154 (hereinafter the "Company"), represented by
Mrs. Maria Segimon de Manzanos, of legal age, married, Spanish by
nationality, holder of Fiscal Identification Number 826.346.W and resident
in Madrid. C/Breton de los Herreros 68, as Attorney.
And of the other, Juan Manuel Orbea, of legal age, born in San Sebastian on 28
August 1951, married, economist, Spanish by nationality, holder of National
Identity Document number 15.339.990. and resident in Zarautz, C/Nafarroa
Kalea 11 F. 1 degree B (hereinafter the "Senior Executive").
THEY DECLARE
That the parties acknowledge each other the full capacity to enter into
obligations and contract and that it is in the interest of both of them to
agree the following additional clauses, to be considered an integral part of
the part-time senior executive employment contract to be signed on the
official form, in accordance with Royal Decree 1382/1985 dated 1 August and
Royal decree 2317/1993 dated 29 December.
ADDITIONAL CLAUSES
1. APPOINTMENT, LEGAL NATURE AND TERM OF THE CONTRACT
1.1 The Company contracts the services of the Senior Executive for an
indefinite term and the Contract may be terminated at any time pursuant
to Clause 7 thereof.
1.2 The Senior Executive shall hold the post of General Manager ("DIRECTOR
GENERAL") of the Company, and this Contract will take effect (and the
relevant duties will be performed) once the Company has been duly
registered for Social Security purposes.
2. DUTIES AND RESPONSIBILITIES
2.1 The Senior Executive assumes all the responsibilities inherent to the
job of General Manager of the Company, his tasks being those
applicable to someone in his position. For the carrying out of his
work and activities in the Company, the Senior Executive shall report
to and follow the criteria and direct instructions issued by the
Company's Board of Directors. The Company will grant the necessary
powers of attorney to the Senior Executive so that he may carry
out the duties assigned to him under this Contract as General Manager
of the Company.
2.2 The workplace of the Senior Executive shall be the registered office
of the Company or any other places mutually agreed.
2.3 For the full term of this Contract, the Senior Executive hereby
undertakes not to participate, without written authorisation from the
Company, in any form whatsoever (save as a shareholder of companies
whose securities are quoted on the stock exchange) in any firm that
may constitute direct or indirect competition for the Company.
Similarly, the Senior Executive declares that on the date of the
signature of this Contract he is not a shareholder nor does he
participate in the capital of any firm of this type.
3. CONFIDENTIALITY
3.1 The Senior Executive undertakes not to reveal to any person or
entity, for the full term of this Contract and following the
termination hereof, any information relating to business, clients,
operations, installations, accounts or finances of the Company, or
its procedures, methods, transactions, "known how" or any other aspect
related to the activity of the Company which the Senior Executive may
know or have known as a result of the provision of his services to
the Company, and shall act with the greatest diligence to avoid the
publication or revelation of any confidential information relating to
this material.
3.2 All the documents, material, files or any other articles of any type
related to the Company shall be deemed confidential. Upon the
termination of this Contract for any reason, the Senior Executive
undertakes to return to the Company any material of this nature which
is, at such time, in his possession and formally waives any right that
he may have to retain it.
4. INVENTIONS, KNOW-HOW AND PATENTS
Any invention, know-how or patent invented or created by the Senior
Executive during the provision of his services to the Company shall belong
to the Company to the extent permitted, in accordance with the terms of
Articles 15 to 20 of Patent Law 11/1986 dated 20 March, and the Company
may freely use such inventions, know-how and patents without having to pay
the Senior Executive any amounts by way of royalty or rent. If it is
necessary in order to perfect the title of the Company to the said
inventions, know-how and patents, the Senior Executive
2
undertakes to assign to the Company any right of this type which
belongs to him, so that the Company may register itself as owner thereof
at the relevant public Registry.
5. REMUNERATION
As consideration for the performance of his services, the Senior
Executive shall receive a base salary of 15,500,000 pesetas (FIFTEEN
MILLION FIVE HUNDRED THOUSAND PESETAS) gross per annum (that is to say,
before tax deductions and Social Security payments) payable in twelve
equal monthly payments. This amount is the compensation for the services
rendered and, notwithstanding the date this Contract takes effect, the
Senior Executive will be paid as if it had taken effect on 30 April.
Thus, the relevant additional payments will be made with the first
monthly payment.
6. EXPENSES
The Senior Executive shall be entitled, upon the submission of receipts,
to the reimbursement of reasonable expenses incurred in the performance
of his duties by and with the approval of the Company, which may be
subject to an audit.
7. TERMINATION
7.1 This Contract may be terminated at the discretion of the Senior
Executive by "resignation" ("DIMISION" or "BAJA VOLUNTARIA"), who will
send written notice thereof to Company at least three months in
advance. In this case, the Senior Executive will not be entitled to
receive any kind of compensation for the termination of the Contract.
If the Senior Executive fails either totally or partially to comply
with the notice obligation, the Company shall be entitled to
compensation equivalent to the salary corresponding to the notice
period not complied with.
7.2 The Senior Executive shall be able to terminate this Contract and
shall be entitled to the compensation established in Clause 7.3 of
this Contract, in the events provided for in articles 10.3 and 11.1
of Royal Decree 1382/1985, based on the following grounds:
7.2.1 Substantial modifications in his working conditions which
will plainly damage his professional training to the
detriment of his dignity, or which are decided upon in
serious breach of good faith by the Company.
7.2.2 A failure to pay or a continuous delay in paying his
agreed salary.
7.2.3 Any other serious breach by the Company of its contractual
obligations, except for cases of FORCE MAJEURE, where the
payment of the compensation referred to herein shall not
be admissible.
7.2.4 A succession in the business or a significant change in
the ownership of the Company which results in the renewal
of its governing bodies or in the content and basis of its
principal activity, provided that the termination takes
-3-
place within the first three months immediately following
the occurrence of these changes.
7.3 This Contract may be terminated at the discretion of the Company
("DESISTIMIENTO"), which shall send written notice thereof to the
Senior Executive at least three months in advance. In this case, the
Senior Executive shall be entitled to compensation equivalent to
twenty-one (21) monthly payments of his salary. Furthermore, if the
Company fails either totally or partially to comply with the notice
obligation, the Senior Executive shall be entitled to compensation
equivalent to the salary corresponding to the notice period not
complied with.
7.4 The Company may terminate this Contract by way of disciplinary
dismissal based on a serious breach of the contract by the Senior
Executive in the form and with the effect established in Article 55
of the Workers' Status. The Senior Executive will not be entitled
to receive any kind of compensation in the case of "fair
disciplinary dismissal" ("DESPIDO DISCIPLINARIO PROCEDENTE").
However, both parties agree that if the disciplinary dismissal is
declared to be unfair ("DESPIDO DISCIPLINARIO IMPROCEDENTE"), the
Senior Executive will be entitled to the compensation referred in
Clause 7.3 above.
7.5 If the Contract is terminated by death or serious invalidity, or
total or absolute permanent invalidity ("GRAN INVALIDEZ" or
"INVALIDEZ PERMANENTE TOTAL O ABSOLUTA"), the Senior Executive (or
his legal successors in the case of his death) shall be entitled to
compensation equivalent to the amount of fifteen monthly payments of
his salary.
7.6 In Clause 8 below, both parties agree the terms and conditions
regarding the Senior Executive's non-competition obligation after
the termination of the contract, applicable to any event of
termination of the Contract (unless upon termination, the employment
contract between the Senior Executive and Fundiciones Viuda de
Ansola S.A. should remain in force) and with the relevant payments
of the specific compensation agreed in Clause 8.
8. NON-COMPETITION
8.1 Based on the peculiariry and special nature of the duties which he
must carry out under this Contract, the Senior Executive undertakes
not to compete with the Company once the Contract has been
terminated, either himself or through a third party or by providing
services to firms or entities whose activity may involve competition
for the Company. Similarly, the Senior Executive undertakes not to
take on employees who, at the time of the termination of this
Contract, form part of the work force of the Company.
However, it is specifically agreed that this Clause will not be
applicable if, upon termination of this Contract, the Contract
between the Senior Executive and Fundiciones Viuda de Ansola S.A.
remains in force.
-4-
8.2 The term of the undertakings set forth in Clause 8.1, once the
Contract has been terminated, shall be two years from the date of
the termination of the Contract, and its breach shall give rise to
compensation for damages from the Senior Executive to the Company.
8.3 As consideration for this limitation on his activities, the Senior
Executive shall receive adequate compensation from the Company,
which is agreed by both parties to be the payment of an amount
equivalent to 50% of his gross annual salary at the date of the
Contract's termination (per year of non-competition), payable in
monthly installments, one every month during the aforementioned two
year period. The is to say, the complete payment of the "adequate
compensation" regarding the total two year non-competition period
will be equivalent to one year of the Senior Executive's gross
annual salary at the date of the Contract's termination.
The breach of the obligations undertaken in this clause shall,
apart from the compensation indicated in clause 8.2 above, require
the Senior Executive to return the amount paid by the Company
pursuant to this paragraph.
9. APPLICABLE LAW.
This Contract shall be governed by Spanish law.
10. MODIFICATIONS
This Contract may be amended or modified solely by way of a document signed by
or on behalf of the parties hereto.
11. NOTICES
Any notice to be given by one party to the other pursuant to this Contract shall
be in writing and sent by certified post with acknowledgment of receipt or
by notarial notice.
12. ADDRESSES
For the purposes of this Contract, the addresses of the parties for notices
shall be the following:
12.1 The Company:
Poligono Industrial Galarza, s/n
Eotebarris
48277 Vizcaya
-5-
12.2 The Senior Executive:
C/Nafarroa Kalea 11F.1B
Edificio Eguzki-Lore
20800 Zarautz
13. CONDITION PRECEDENT
The validity and effectiveness of this Contract is conditional upon the
purchase of shares of the Company by "Ansola Acquisition Corporation S.R.L."
AND IN WITNESS WHEREOF, the parties having carefully read the document, they
ratify and sign it in duplicate, each copy having identical weight.
THE COMPANY THE SENIOR EXECUTIVE
-6-