EXHIBIT 10(s)
Settlement Agreement, dated November 27, 2001, between the
Registrant and Laurens X.X. xx Xxxx
SETTLEMENT AGREEMENT
(IN ACCORDANCE WITH CLAUSE 7:900 OF THE DUTCH CIVIL CODE)
BETWEEN:
1. L.J.M. XX XXXX, an individual residing in [ADDRESS
] (hereinafter referred to as "XX XXXX");
and
2. SCOTTS INTERNATIONAL B.V., a private company with limited liability
(besloten vennootschap met beperkte aansprakelijkheid), incorporated under
the laws of The Netherlands, having its registered office at Heerlen, The
Netherlands and its principal place of business at Xxxxxxxxxxxxx 0, 0000 XX
Xxxxxxxxxxx, Xxx Xxxxxxxxxxx (hereinafter referred to as "SCOTTS");
Xx Xxxx and Scotts hereinafter jointly referred to as the "PARTIES".
WHEREAS:
(a) Xx Xxxx has been employed by Scotts from 7 September 1982;
(b) On 17 August 1995 Parties have entered into a new employment agreement
(hereinafter referred to as the "EMPLOYMENT AGREEMENT");
(c) Xx Xxxx has been appointed as Managing Director (statutair directeur) of
Scotts as of 11 November 1995. Furthermore, has a number of other positions
within affiliated companies of Scotts;
(d) A dispute has arisen as regards the position of Xx Xxxx as a result of
which the Parties have agreed on a termination of Xx Xxxx'x employment and
positions within Scotts and any affiliated companies of Scotts (the
"ASSOCIATED COMPANIES") under the terms and conditions set forth
hereinafter;
HEREBY IT IS AGREED AS FOLLOWS
1. TERMINATION OF EMPLOYMENT
1.1 The Parties will request the District Court to terminate the Employment
Agreement between Xx Xxxx and Scotts through formal court proceedings as
per 31 October 2001 (the "TERMINATION DATE"). Scotts will file a petition
with the District Court asking for the termination of the Employment
Agreement as per 31 October 2001 on neutral grounds. Xx Xxxx will defend
himself against this petition only on so-called "formal grounds" by
submitting a short statement of defence with the District Court. The
Parties will agree on the contents of those
documents beforehand. The Parties will waive their respective right to
an oral hearing.
2. RELEASE OF DUTIES
2.1 Until the Termination Date, Xx Xxxx will not perform any duties under the
Employment Agreement. During this period, Xx Xxxx furthermore shall not
perform or exercise any function or activities as employee or director of
Scotts or of the Associated Companies, including the exercise of any
authorities granted to him under (supervisory) board resolutions, powers of
attorney, mandates or any other similar instruments, unless specifically
and occasionally requested by Scotts, which Xx Xxxx hereby accepts.
3. CONTINUATION OF SALARY AND OTHER BENEFITS
3.1 Scotts shall continue to pay Xx Xxxx his current regular salary and other
customary benefits pursuant to the Employment Agreement until the
Termination Date. Xx Xxxx will submit the final cost expenses accompanied
by invoices for settlement before the Termination Date.
3.2 The bonus for fiscal year 2001 will be established and subsequent payment
will be made in accordance with the bonus incentive arrangement applicable
within Scotts. Xx Xxxx is not entitled to any other bonus payments.
4. SEVERANCE PAYMENT
4.1 Scotts shall pay to Xx Xxxx an amount of NLG 2,550,000.- gross as a
compensation for the termination of his employment and the loss of income
as a result thereof (the "COMPENSATION SUM"). If Xx Xxxx desires, Scotts is
prepared to pay some or all of the Compensation Sum into a Dutch limited
liability company incorporated by Xx Xxxx (THE "STAMRECHT B.V."), provided
that the compensation will be used for the purchase of rights that qualify
under the stamrecht exemption in Article 11 paragraph 1 sub g of the Wages
and Salaries Tax Xxx 0000 (Wet op de Loonbelasting 1964).
4.2 Scotts will pay the Compensation Sum at the Termination Date. Xx Xxxx shall
inform Scotts of how payment should be made as soon as possible but no
later than one week before payment should be made.
4.3 If the District Court will grant a higher or lower or other form of
compensation amount than the Compensation Sum, Xx Xxxx will not be entitled
to any payment in excess or below the Compensation Sum.
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5. HOLIDAYS
Within one month after the Termination Date, Scotts shall pay all
accrued but untaken holidays.
6. STOCK OPTIONS
With regard to stock options, the Parties agree as follows.
a) Scotts waives all the rights on clause 7.4 of the 1996 Stock Option
Plan (reflecting the amendments through April 1, 1999) (THE "STOCK
OPTION PLAN") regarding forced exercise of options within 90 days
after termination date, thus Xx Xxxx will be entitled to exercise the
options at any later date until the end of the final exercise period.
b) Scotts waives the rights with regard to the non-compete provisions set
forth in clause 7.5 (a) in the Stock Option Plan, however with the
strict exception of the following:
Xx Xxxx shall be prohibited to directly or indirectly work for HAIFA
Chemicals in the field of multicoat or Shiso-Assai in the field of
nutricoat or either of these companies in the field of horticulture
turf amenity.
7. PENSION
7.1 As of the Termination Date, Xx Xxxx will no longer be entitled to any
payments into the collective pension scheme of Scotts. Xx Xxxx will receive
a premium free pension entitlement as per 31 October 2001 in accordance
with the Dutch Pensions and Savings Act (Pensioen en Spaarfondsenwet).
8. LEGAL FEES
Scotts is prepared to contribute to the legal costs incurred by Xx Xxxx
up to a maximum amount of NLG 15,000 excluding VAT provided that Xx
Xxxx'x legal advisor will submit an invoice in the name of Scotts to the
attention of Xx Xxxxx Xxxxxxx.
9. RESIGNATION FROM OFFICERSHIPS AND DIRECTORSHIPS
Effective as per 31 October 2001 Xx Xxxx shall voluntarily resign from his
positions as managing director, as well as any other position within Scotts
and the Associated Companies, in which he has served prior to the
Termination Date and undertakes to take such action and sign such
documentation as may be required to
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give effect to such resignations. Scotts and the Associated Companies shall
procure proper, timely registration of such resignations.
9.1 Xx Xxxx will cooperate to transfer all written Powers of Attorney to all
persons appointed by Scotts.
10. RETURN OF PROPERTY
10.1 Xx Xxxx expressly agrees that on or before 31 October 2001 he shall return
to Scotts or an appointed third party in good state all property of Scotts
and/or the Associated Companies including, but not limited to: his company
credit card, mobile phone, access port, laptop, printer, fax, any and all
computer equipment, software and diskettes, documents, papers, records,
accords, notes, agenda, memoranda, plans, calendars and other books and
records of any kind and nature whatsoever containing information concerning
Scotts and/or the Associated Companies or their customers or operations. Xx
Xxxx confirms that he will not retain copies of any such property or other
materials.
10.2 Belongings of Xx Xxxx in the offices and/or in the Dublin apartment will be
sent to Xx Xxxx'x home address.
10.3 Xx Xxxx may continue the use of the lease car until the end of the lease
contract (30 January 2002) at the expenses of Scotts, with continuation of
the lease conditions applicable within Scotts, without prejudice to the
right of Xx Xxxx to buy the lease car for rest value from the lease
company. The tax liability with respect to the use of the lease car is for
the account of Xx Xxxx.
11. COMMUNICATION AND RECEPTION
11.1 A communication of a positive nature regarding the departure Xx Xxxx will
be made to the personnel of Scotts. The Parties will agree prior to 28
September 2001 on the content hereof.
11.2 Scotts will arrange a goodbye-reception/dinner for Xx Xxxx.
12. TAX ISSUE
Parties acknowledge that they are in disagreement on potential Dutch tax
liabilities with regard to the split salary arrangement, as well as
potential Dutch tax liabilities with regard to the complete pension
arrangements, as well as to the question which of the parties should in the
end bear the costs of such liability. Xx Xxxx hereby declares that he has
always filed his personal Dutch income tax statements clearly stating the
salary split in all the relevant foreign countries. The parties shall fully
cooperate in the coming period to supply the necessary documentation and/or
information to the tax advisor of Scotts currently dealing with the issue.
Xx Xxxx
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accepts PWC as the tax advisor dealing with this matter, provided Xx Xxxx
is adequately informed of all relevant developments.
13. CONFIDENTIALITY
Xx Xxxx shall keep strictly secret and confidential the terms and
conditions of this agreement. Xx Xxxx agrees to keep strictly confidential
and not use in any way any other non-public information such as trade
secrets and proprietary and/or confidential information of Scotts and the
Associated Companies, of which he became aware during his employment by
Scotts. In addition, the Parties will not disclose, divulge, or communicate
to any third party any negative or damaging information about the other
party concerned nor communicate to any third party and any details or
information regarding the contents of this agreement unless required by law
and except with regard to the tax advisors of parties; provided however
that the foregoing shall not apply to litigation documents filed in
connection with either parties efforts to enforce this agreement or
otherwise.
14. RELEASE
No other issues between parties are open. Except for the fulfilment of the
above mentioned rights and obligations as well as the options, parties will
be fully discharged towards each other. More specifically, Xx Xxxx waives
any claim that he may have agains any company within the Scotts Group of
companies.
15. GOVERNING LAW
This Agreement shall be construed in accordance with and governed by the
laws of The Netherlands.
In witness whereof Scotts and Xx Xxxx have signed this Agreement in twofold.
/s/ Xxxxx Xxxxxxxx /s/ L.J.M. XX XXXX
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SCOTTS INTERNATIONAL B.V. L.J.M. XX XXXX
Date: Date: 27-11-01
By:
Title:
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