Xxxxxxxx Xxxxxx
Employment Agreement
Effective July 1, 2005
EMPLOYMENT AGREEMENT (this "Agreement"), dated as of July 1, 2005,
between XXXXX LIMITED, a Bermuda company (the "Company"), and JOAO XXXXXXXX
XXXXXX (the "Executive").
WHEREAS, the Executive currently serves as Managing Director of the
Food Products Division of the Company and the parties hereto desire to continue
their relationship on the terms set forth in this Agreement; and
WHEREAS, the Executive is party to an agreement with the Company, dated
May 10, 2001 (amended as of August 9, 2004) (the "Prior Agreement"), and the
parties desire to supersede the Prior Agreement and replace it with this
Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements set
forth below, the parties hereto agree as follows:
1. EFFECTIVENESS OF AGREEMENT
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1.1 General. This Agreement is effective as of the date hereof (the
"Effective Date").
2. EMPLOYMENT AND DUTIES
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2.1 General. The Company hereby agrees to continue to employ the
Executive, and the Executive agrees to serve, as Managing Director of the Food
Products Division of the Company upon the terms and conditions herein contained,
including without limitation, the Executive's extensive international business
travel as part as of his global responsibilities. The Executive shall perform
such other duties and services for the Company commensurate with the Executive's
position, as may be designated from time to time by the Board of Directors of
the Company (the "Board"). The Executive agrees to serve the Company faithfully
and to the best of his ability under the direction of the Board.
2.2 Services.
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2.2.1 Services. Except during vacation periods and periods of absence
due to sickness, personal injury or other disability, the Executive shall devote
all of his business time and attention during the Employment Term (as defined
below) to the services required of him hereunder. During the Employment Term,
the Executive shall use his best efforts to promote the interests of the Company
and, as determined by the Company, its Subsidiaries (as defined below) (such
Subsidiaries, together with the Company, the "Bunge Group"). Notwithstanding the
foregoing, subject to Article 6, the devotion of reasonable periods of time by
Executive to serving as a member of Dream Brand Import, LLC shall not be deemed
to be a breach of this Agreement, provided that such activities do not interfere
with the services required to be rendered on behalf of the
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Bunge Group. For purposes of this Agreement, "Subsidiary" shall mean (a) a
corporation or other entity with respect to which the Company, directly or
indirectly, has the power, whether through the ownership of voting securities,
by contract or otherwise, to elect at least a majority of the members of such
corporation's board of directors or analogous governing body or (b) any other
corporation or other entity in which the Company, directly or indirectly, has an
equity or similar interest.
2.3 Term of Employment. The Executive's employment under this Agreement
shall commence as of the Effective Date and shall continue in effect until the
termination of the Executive's employment pursuant to Section 5 of this
Agreement (such period of employment shall hereinafter be referred to as the
"Employment Term").
3. COMPENSATION
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3.1 Base Salary. During the Employment Term, the Executive shall be
entitled to receive a base salary ("Base Salary") at a rate of U.S. $540,000 per
annum, payable in arrears in substantially equal installments in accordance with
the Company's payroll practices, as in effect from time to time. Any adjustments
in Base Salary shall be made by the Compensation Committee of the Board (the
"Compensation Committee") in its sole discretion.
3.2 Annual Incentive Bonus. During the Employment Term, the Executive
shall be entitled to participate in the Company's Annual Incentive Plan (the
"AIP"), under which the Executive shall be eligible to receive an annual target
bonus amount of sixty six percent (66%) of his Base Salary, subject to the
satisfaction of applicable performance criteria in accordance with the terms of
the AIP.
3.3 Long-Term Equity Incentive. During the Employment Term, the
Executive shall be entitled to participate in the Xxxxx Limited Equity Incentive
Plan, as amended from time to time (such plan, together with any successor or
replacement plan(s), shall hereinafter be referred to as the "Bunge Equity
Plan"). The terms and conditions of the Executive's equity awards pursuant to
the Bunge Equity Plan shall be determined in accordance with the terms of the
Bunge Equity Plan and the relevant award agreements.
3.4 Housing. During the Employment Term, the Company shall provide the
Executive with a furnished apartment in Manhattan, New York at a reasonable cost
to the employer in an amount not to exceed U.S. $6,000 per month in lieu of
participating in the Company's employee benefit plans. If the Executive elects
an apartment with a cost in excess of such amount, the excess shall be deducted
from his Base Salary.
3.5 Reimbursement of Business Expenses. The Company shall reimburse the
Executive for reasonable travel and other business expenses incurred by him
during the Employment Term in the fulfillment of his duties hereunder, upon
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presentation by the Executive of an itemized account of such expenditures, in
accordance with Company business expense and reimbursement practices.
4. EMPLOYEE BENEFITS
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4.1 General. Except as otherwise provided in this Agreement, during the
Employment Term, the Executive shall not be included and shall not be eligible
to participate in any employee benefit plans, programs or arrangements
(including, without limitation, any plans, programs or arrangements providing
retirement benefits, profit sharing, disability benefits, or health and life
insurance) established by the Company for its employees.
4.2 Vacation. During the Employment Term, the Executive shall be
eligible for 20 calendar days of paid vacation each calendar year. If the
Executive's employment terminates for any reason, the Executive shall only be
paid for unused vacation that accrued during the calendar year in which his Date
of Termination (as defined below) occurs.
4.3 Director and Officer Indemnification Coverage. The Company shall
furnish the Executive with coverage by the Company's customary director and
officer indemnification arrangements, subject to applicable law.
5. TERMINATION OF EMPLOYMENT
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5.1 Termination of Employment for Any Reason; Resignation for Any
Reason.
5.1.1 General. If, prior to the expiration of the Employment Term, the
Executive's employment with the Company is terminated by the Company for any
reason or the Executive resigns from his employment hereunder for any reason,
the Executive shall be entitled only to payment of his accrued but unpaid Base
Salary as is then in effect through and including the Date of Termination.
Subject to Sections 4.2 and 4.3, the Executive shall have no further right to
receive any other compensation or benefits after such termination of or
resignation from employment, except as determined in accordance with the terms
of the Company's equity plans and related award agreements and benefit plans and
programs.
5.1.2 Date of Termination. For purposes of this Agreement, "Date of
Termination" shall mean (a) with respect to the termination of the Executive's
employment for Cause, the date specified in a written notice of termination from
the Company to the Executive; (b) with respect to the termination of the
Executive's employment for any reason other than for Cause, the date specified
in a written notice of termination from the Company to the Executive; provided,
however, that such date shall be at least sixty (60) days after the date the
Company provides such written notice of termination to the Executive; (c) with
respect to the Executive's resignation for any reason, 60 days after receipt by
the Company of a written notice of resignation from the
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Executive; and (d) with respect to the termination of the Executive's employment
due to death, the date of the Executive's death.
5.2 Cause. Termination for "Cause" shall mean termination of the
Executive's employment because of:
(a) any act or omission that constitutes a material breach by the
Executive of this Agreement;
(b) the willful and continued failure or refusal of the Executive to
substantially perform the duties required of him as an employee of the
Company;
(c) any willful and material violation by the Executive of any law or
regulation applicable to any business of the Bunge Group, or the
Executive's conviction of, or a plea of nolo contendere to, a felony, or
any willful perpetration by the Executive of a common law fraud; or
(d) any other willful misconduct by the Executive that is materially
injurious to the financial condition, business or reputation of, or is
otherwise materially injurious to, any member of the Bunge Group.
6. PROTECTIVE COVENANTS
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6.1 Confidentiality. The Executive agrees with the Company that he
shall not at any time during or subsequent to the Employment Term, except in the
performance of his obligations to the Company hereunder or with the prior
written consent of the Company, directly or indirectly, disclose or appropriate
for his own use, or for the use of a third party, any secret or confidential
information of or related to the Bunge Group. The Executive confirms that all
confidential information is and shall remain the exclusive property of the Bunge
Group. All business records, papers and documents kept or made by the Executive
relating to the business of the Bunge Group shall be and remain the property of
the Bunge Group.
6.2 Nonsolicitation. The Executive agrees that, during the Employment
Term and during the twelve month period immediately following his termination of
employment, he shall not, directly or indirectly (except in the course of his
employment with the Company), (i) solicit or contact any customer of the Bunge
Group (or any other entity that the Executive knows is a potential customer with
respect to specific products of the Bunge Group) for any commercial pursuit that
to the knowledge of the Executive is in competition with the Bunge Group or that
is contemplated from time to time during the Employment Term by any
corresponding business plan; (ii) take away or interfere or attempt to interfere
with any custom, trade, business or patronage of the Bunge Group, or induce, or
attempt to induce, any employees, agents or independent contractors of or to the
Bunge Group to do anything from which the Executive is restricted by reason of
this Section 6.2; or (iii) offer or aid others to offer employment to employees
of the
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Bunge Group, or interfere or attempt to interfere with any employees of
the Bunge Group.
6.3 Cooperation of the Executive. During and after the Executive's
employment with the Company, the Executive shall reasonably cooperate with the
Company in the defense or prosecution of any claims or actions now in existence
or which may be brought in the future against or on behalf of the Company and in
connection with any investigation or review of any federal, state or local
regulatory authority as any such investigation or review relates to events or
occurrences that transpired while the Executive was employed by the Company or
any former or current member of the Bunge Group. The Company shall reimburse the
Executive for all reasonable costs and expenses incurred in connection with his
performance under this Section 6.3, including, without limitation, all
reasonable attorneys' fees and costs.
6.4 Certain Remedies. Without intending to limit the remedies available
to the Bunge Group, the Executive agrees that a breach of any of the covenants
contained in this Section 6 may result in material and irreparable injury to the
Bunge Group for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of such a breach or threat thereof, any member of the Bunge Group shall be
entitled to seek a temporary restraining order or a preliminary or permanent
injunction, or both, without bond or other security, restraining the Executive
from engaging in activities prohibited by this Section 6 or such other relief as
may be required specifically to enforce any of the covenants in this Section 6.
Such injunctive relief in any court shall be available to the Bunge Group in
lieu of, or prior to or pending determination in, any arbitration proceeding.
7. MISCELLANEOUS
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7.1 Communications. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made (a) if delivered by hand, upon receipt, (b) if sent by telecopy or
facsimile transmission, upon confirmation of receipt by the sender of such
transmission or (c) if mailed by registered or certified mail (postage prepaid,
return receipt requested), on the fifth business day after mailed to the
appropriate party at the following address (or at such other address for a party
as shall be specified by like notice, except that notices of changes of address
shall be effective upon receipt):
(a) if to the Company:
Xxxxx Limited
Attn: Chief Personnel Officer
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Fax:(000)000-0000
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(b) if to the Executive:
Joao Xxxxxxxx Xxxxxx
0000 Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
7.2 Waiver of Breach. The waiver by the Executive or the Company of a
breach of any provision of this Agreement by the other party hereto shall not
operate or be construed as a waiver of any subsequent breach by either party.
7.3 Severability. The parties hereto recognize that the laws and public
policies of various jurisdictions may differ as to the validity and
enforceability of covenants similar to those set forth herein. It is the
intention of the parties that the provisions hereof be enforced to the fullest
extent permissible under the laws and policies of each jurisdiction in which
enforcement may be sought, and that the unenforceability (or the modification to
conform to such laws or policies) of any provisions hereof shall not render
unenforceable, or impair, the remainder of the provisions hereof. Accordingly,
if at the time of enforcement of any provision hereof, a court of competent
jurisdiction holds that the restrictions stated herein are unreasonable under
circumstances then existing, the parties hereto agree that the maximum period,
scope or geographic area reasonable under such circumstances shall be
substituted for the stated period, scope or geographical area and that such
court shall be allowed to revise the restrictions contained herein to cover the
maximum period, scope and geographical area permitted by law.
7.4 Assignment; Successors. No right, benefit or interest hereunder
shall be assigned, encumbered, charged, pledged, hypothecated or be subject to
any setoff or recoupment by the Executive. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the Company, and
the Company shall cause its obligations remaining under this Agreement to be
assumed by any entity that succeeds to all or substantially all of the Company's
business or assets; provided, however, that no such assumption shall relieve the
Company of its obligations under this Agreement to the extent such obligations
are not satisfied by the entity assuming the Company's obligations hereunder,
unless the Company obtains the written consent of the Executive at the time of
such assumption.
7.5 Entire Agreement. This Agreement represents the entire agreement of
the parties and shall supersede any and all previous contracts, arrangements or
understandings between the Company and the Executive with respect to the subject
matter set forth herein, including, without limitation, the Prior Agreement.
This Agreement may be amended at any time by mutual written agreement of the
parties hereto.
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7.6 Withholding. The payment of any amount pursuant to this Agreement
shall be subject to applicable withholding and payroll taxes and such other
deductions as may be required by applicable law.
7.7 Governing Law. This Agreement shall be subject to, and construed in
accordance with, the laws of the State of New York.
7.8 Headings. The headings in this Agreement are for convenience only
and shall not be used to interpret or construe any of its provisions.
7.9 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(Signature Page Follows)
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed and the Executive has hereunto set his hand, as of the day and year
first written above.
XXXXX LIMITED
By:
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Name:
Title:
EXECUTIVE
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Joao Xxxxxxxx Xxxxxx
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