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DEED OF SETTLEMENT

Settlement Agreement

DEED OF SETTLEMENT | Document Parties: CHIQUITA BRANDS INTERNATI | Chiquita Banana Company B.V | Peter Anthony George Horekens | Mr. Horekens You are currently viewing:
This Settlement Agreement involves

CHIQUITA BRANDS INTERNATI | Chiquita Banana Company B.V | Peter Anthony George Horekens | Mr. Horekens

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Title: DEED OF SETTLEMENT
Date: 3/11/2004
Industry: Food Processing     Sector: Consumer/Non-Cyclical

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Exhibit 10-hh

 

DEED OF SETTLEMENT

 

The undersigned:

 

1.

Chiquita Banana Company B.V., established at Breda, represented by Mr. Bob Kistinger, in his capacity as President COO of CBI, hereinafter “the Company”;

 

and

 

2.

Peter Anthony George Horekens, residing at Nachtvlinderslaan 19, Brussel 1000, Belgium, hereinafter “Mr. Horekens”;

 

BACKGROUND

 

As from July 14, 1997, Mr. Horekens entered into the service of the Company in the framework of an employment agreement (hereafter “ employment agreement ”).

 

In mid-November 2003, the Company informed Mr Horekens of its desire to discontinue the employment agreement , with effect as from 31 December 2003.

 

Mr Horekens agreed to cooperate with the termination process and to resign from all his positions within the Company, subject to the financial consideration and terms and conditions provided for by this deed of settlement (“ Settlement ”) and the other agreements referred to in this Settlement .

 

Indeed, Mr. Horekens and various group companies entered into various agreements in the context of Mr Horekens cessation of all professional activities for such group companies (hereafter ‘the Departure Agreements’).

 

DECLARE TO HAVE AGREED AS FOLLOWS:

 

Mr. Horekens shall resign from all positions within the Company and affiliated companies in The Netherlands, including but not limited to the position Managing Director under the articles of association of the Company, as per 31 December 2003 and agrees to co-operate in the formal proceedings to be taken to effect his resignations.

 

1.

The employment agreement shall terminate per 31 December 2003 (“the Termination Date”).

 

2.

Until the Termination Date, the Company will pay to Mr. Horekens his present benefits. After the Termination Date, no benefits are due. The Company shall provide Mr. Horekens with a final settlement per the Termination Date subject to Dutch tax law.

 

3.

Within 15 days after signature of this agreement, the Company shall pay Mr. Horekens a severance equal to EUR 290,757gross. The aforementioned amount is subject to Dutch


tax law. Payment will be made in a manner to be decided by Mr. Horekens, provided that any such direction shall be allowed from a tax law point of view and provided such directions shall not result in risks or extra costs for the Company. If Mr. Horekens wishes to apply (part of) the severance for an annuity or a standing right to periodic payments, the Company is entitled to request sufficient evidence for such annuity or standing right construction before any such payment will be made.

 

4.

All belongings, including documents, keys, entrance cards, mobile phone, laptop (if any) and business credit cards of the Company and/or its affiliated companies in the Netherlands Mr. Horekens presently possesses, will be returned within 15 days after signature of this agreement.

 

5.

Until and after the termination of the employment agreement, Mr. Horekens shall observe full confidentiality with respect to all matters relating to the Company and its affiliated companies and shall not in any manner disclose any information .Save as required by law, neither the Company and its affiliated companies nor Mr.Horekens shall without the consent in writing of the other party, disclose the terms of this agreement to any person other than to involved professional advisors, who require the information for necessary professional purposes. Parties shall in the future conduct themselves with respect to the other party within the confines of normal good behaviour. They shall not refer to the other party in the future vis-à-vis third parties in a negative way. Neither party shall co-operate in any publication and/or publicity about the other party without a written consent of the other party.

 

6.

The Company shall pay the bonus for performance in 2003 in line with the bonus policy of the Company. One-third of such bonus, if any, will be paid in 2004 at the same time as for the other eligible executives of the Company. The applicable social security contributions and taxes will be withheld.

 

7.

In the event that the Dutch tax administration or any other competent authority in this or any other jurisdiction should determine that additional income tax are or were due and payable on any part of the Payments made to Mr. Horekens by the Company in the context of the separation, then Mr. Horekens shall be solely liable for such claim and Mr Horekens will indemnify the Company or any Group Company against any claim that may be made upon it by any competent authority in this or any other jurisdiction for such tax .

 

8.

This agreement is ruled by Dutch law and, without prejudice to the Departure agreements, fully and finally settles any and all claims that parties have or may have against each other, or against the affiliated companies of the Company, arising out of or in connection with the employment or services of Mr. Horekens or the termination thereof. This release does not apply however, to the discharge of Mr. Horekens as member of any Board of Management of the Company or any affiliated company, which discharge shall follow from the decisions of the relevant shareholders meeting with respect to the management of the Board of Management as per applicable rules of company law. It is, however, stated that there are no facts or circumstances known at present which bar such discharge.

 

2


Thus agreed on 19.01 2004

 

 

 

 

/s/ Bob Kistinger


 

  

/s/ P.A. G. Horekens


 

Chiquita Banana Company B.V.

  

P.A.G. Horekens

Mr. Bob Kistinger

  

 

President COO of CBI

  

 

 

3


Settlement Agreement

 

 

 

 

 

 

BETWEEN:

    

Chiquita International Services Group NV , having its registered office at Rijnkaai 37, 2000 Antwerpen, Belgium;

 

 

 

    

for the purpose of this agreement represented by Mr Francis Kint, in his capacity as Vice President Sales North & Eastern Europe CISG;

 

 

 

    

referred to as “the Company”;

 

 

AND:

    

Peter Anthony George Horekens, residing at Nachtvlinderslaan 19, 1000 Brussels, Belgium;

 

 

 

    

referred to as “Mr Horekens”;

 

BACKGROUND:

 

As from July 14, 1997, Mr Horekens was appointed as Managing Director of the Company (hereafter “ professional relationships ”).

 

In mid-November 2003, the Company informed Mr Horekens of its decision to terminate the professional relationships , with effect as from 31 December 2003.

 

Mr Horekens agreed to co-operate with the termination process decided by the Company, subject to the financial consideration and terms and conditions provided for by this agreement (“ Agreement ”) and the other agreements referred to in this Agreement .

 

Indeed, Mr. Horekens and various group companies entered into various agreements in the context of Mr. Horekens cessation of all professional activities for such group companies (hereafter, the ‘Departure Agreements’.)

 

IT IS AGREED:

 

Article 1

 

1.

 

The termination of the professional relationships as decided by the Company will be effective as from 31 December 2003.

 

2.

 

Mr. Horekens accepts the Company’s decision to terminate the professional relationships and will co-operate to its implementation by formally resigning from his position as Managing Director of the Company, with effect as from 31 December 2003.

 

1


ARTICLE 2

 

Subject to the covenants and obligations undertaken by Mr Horekens in this Agreement, the Company shall pay the following amounts to Mr Horekens, who accepts:

 

(a)

Severance pay equal to a gross amount of EUR 290,757 which shall be paid at the latest by 29 February 2004;

 

(b)

Bonus for performance in 2003: in line with the bonus policy of the Company. One third of such bonus, if any, will be paid in 2004 by the Company at the same time as for the other eligible executives of the Company.

 

These amounts shall be paid to Mr. Horekens, subject to applicable withholding tax.

 

ARTICLE 3

 

Mr Horekens resigns from all positions within the Company and affiliated companies, as per 31 December 2003. He agrees to co-operate in the formal proceedings to be taken to effect his resignations.

 

Annex I contains an overview of the board memberships or other positions Mr. Horekens presently holds and from which he accepts to resign.

 

ARTICLE 4

 

1.

 

The company will continue to pay into the group insurance with policy number 7612007 (46) Z7N (group) contracts: 94.362.280 and 281 which it has taken out at the benefit of Mr Horekens with Fortis AG, the company’s contributions, i.e. an amount of approximately 2,473.73 EUR per month during 20 months.

 

2.

 

On 31 December 2003 the Company will cease paying the contributions to Fortis AG to cover Mr Horekens’ hospital and disability insurance currently available under policy number 89.311.619 and 88.196.145 (“the Policy”). However, with the agreement of Fortis AG, Mr Horekens may remain a beneficiary under the Policy for 20 months under similar conditions, provided that he personally pays the contributions due under the Policy.

 

ARTICLE 5

 

1.

 

The Company agrees to reimburse to Mr Horekens all reasonable attorney and legal fees incurred by Mr Horekens in connection with claims asserted by third parties prior to 31 December 2005 with regard to the performance of the corporate mandates held by Mr. Horekens in the Company or any affiliated companies, as listed in Annex I, if the following requirements are met:

 

2


(i)

Mr Horekens will fully communicate the claims as asserted within 15 days of his gaining knowledge thereof;

 

(ii)

Mr Horekens will communicate to the Company the statements of fees as submitted by his legal counsel;

 

(iii)

The claims are not related to Mr Horekens gross negligence, wilful misconduct or criminally sanctioned liabilities.

 

2.

 

In case of dispute between Mr Horekens and the Company regarding what should be considered as the amount corresponding to “all reasonable attorney and legal fees” under section 1 of this Article 5, the most diligent party or the parties shall seek the advice of the bar authorities of the relevant jurisdiction and the parties shall be definitively bound by this advice. In any event, irrespective of the foregoing, the Company’s financial liability towards Mr Horekens under this Article shall be limited to EUR 10,000 for each jurisdiction where any such claims may be filed.

 

ARTICLE 6

 

The company shall provide Mr Horekens with the assistance of the tax consultant that used to handle its tax filings during the professional relationships with respect to amounts paid to Mr Horekens by Chiquita group companies in 2003 and 2004 including without being limited to the amounts provided for in this Agreement and the other Departure Agreements.

 

ARTICLE 7

 

In the event that the Belgian tax administration or any other competent authority in this or any other jurisdiction should determine that additional income tax are or were due and payable on any payment made by the Company in the context of the separation then Mr. Horekens shall be solely liable for such claim and Mr Horekens will indemnify the Company or any Group Company at their first request against any claim that may be made upon it by any competent authority in this or any other jurisdiction for such tax .

 

ARTICLE 8

 

1.

 

Mr Horekens may continue to use the Company car, type Jaguar, until January 31, 2004, subject to the approval by the leasing Company. Mr Horekens must use the car with due diligence and must return the car to Chiquita at the offices of the Company, in good condition on or before February 1, 2004. During this period, the Company will cover a reasonable amount of fuel.

 

2.

 

Mr. Horekens will be able to exercise 75% of the SAR’s granted to him in 2002 in the course of 2004. The SAR’s which have not been exercised before 31 December 2004, will however lapse.

 

All other SAR’s, stock options, rights on performance shares and rights on matching shares, granted to Mr. Horekens shall lapse immediately and without comp


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