1
EXHIBIT 10.23
The following is a fair and accurate English translation of the
Employment Contract between Xxxx Xxx/DE N.V. and Xxxxx X. Xxxxxxx, dated
November 9, 1994, which is originally in the Dutch language.
Xxxx Xxx Corporation
/s/ Xxxxx Xxxxxxxx Xxxxx
-------------------------
By: Xxxxx Xxxxxxxx Xxxxx
Its: Senior Vice President,
Secretary and General
Counsel
2
Translated from DUTCH
EMPLOYMENT CONTRACT
THE UNDERSIGNED:
1. XXXX XXX/DE N.V., with corporate seat in Joure and administrative
offices at Utrecht, in accordance with the provisions of article 24
indent 2, in these presents represented by Mr. H.B. van Liemt in his
capacity of Chairman of the Board of Supervisors hereinafter called the
"Company",
AND
2. Xx. X. Xxxxxxx, residing at Xxxxxxxxxxxxxx 0, 0000 Xx Xxxxxxxxx Xxx
Xxxxxxxxxxx, hereinafter called "Member of the Board of Management".
WHEREAS
Member of the Board of Management entered the employment of Xxxxx Xxxxxxx N.V.
in Belgium on January 16, 1986 in the capacity of Marketing Director Xxxxx
Xxxxxxx Belgium, and started his employment with the Company on September 1,
1990, where he consecutively held the positions of Senior Vice President
Corporate Strategy & Business Development, member of the Coffee & Grocery
Board, and chairman of the Household & Personal Care Board;
Member of the Board of Management was appointed Vice President in 1992, and
Senior Vice President of Xxxx Xxx Corporation "SLC" on April 6, 1994;
the Board of Supervisors of the Company, in its decision dated April 16, 1992,
named the Member of the Board of Management a member of the Board of Management
of the Company;
1
3
the Board of Supervisors of the Company, in accordance with article 21 indent 1
of the Company's Bylaws, by decision dated April 19, 1994, named the Member of
the Board of Management Chairman of the Board of Management of the Company;
Member of the Board of Management is familiar with the agreements concluded
with SLC such as the memorandum dated June 27, 1977, the agreement of February
24, 1984 and the protocol of February 27, 1987; and
the parties wish to settle their employment relations while taking into account
the provision of article 22 of the Company's Bylaws;
THEREFORE AGREE AS FOLLOWS:
Article 1 - Term
a. This agreement enters into effect on April 19, 1994 and replaces all
employment contracts and/or agreements relating to their service
relationship executed prior to that date between the Company and the
Member of the Board of Management, which are hereby canceled.
b. Without prejudice to the provisions of Attachments A and B to this
agreement, this agreement is concluded for an unspecified term and can
be terminated by either party by registered letter at the end of a
calendar month providing a notice of six months, while taking into
account the provisions of the Bylaws of the Company regarding the
resignation of members of the Board of Management.
c. This agreement terminates in each case legally without requiring any
notice when reaching the age at which a member of the Board of
Management is obliged to resign in accordance with the Bylaws of the
Company.
2
4
Article 2 - Task/Competencies
a. The Member of the Board of Management is obliged to carry out
his activities in accordance with the pertinent legal provisions and
those in the Company's Bylaws.
In addition, the Member of the Board of Management is obliged
to be always bound by the "Management Regulation" drawn up in
accordance with article 20 indent 2 of the Bylaws, if and as long as
it remains in existence.
b. The Member of the Board of Management is Chairman of the
Board of Management which as a Group is entrusted with the Management
of the Company. As Chairman, the Member of the Board of Management is
in particular entrusted with the following tasks and areas: strategy,
complete operational matters, financial policy, internal and external
communications, personnel and juridical matters.
The Board of Supervisors is at all times authorized, after
consultation with the Board of Management and the Member of the Board
of Management, to effect changes in and make additions to the task
description.
c. In addition to his function of Chairman of the Board of
Management, the Member of the Board of Management will be requested to
take on administrative functions at sister companies and/or
subsidiaries of the Company.
d. The Member of the Board of Management is obliged to observe the
Code of Conduct of SLC, as set forth from time to time. The Code of
Conduct contains among others, provisions with regard to limitations
which are placed on private investments.
Article 3 - Primary Employment Conditions
a. Salary
The Member of the Board of Management is entitled to an annual salary of
DFL 644,000 gross. This salary incorporates all legally
3
5
compulsory payments of whatever nature, including vacation allowance,
as well as year-end bonus.
b. Payment
Payment will be on a monthly basis.
c. Raise
The salary of the Member of the Board of Management can be raised
annually, i.e. on January first on the basis of an evaluation by the
Board of Supervisors of the performance of the Member of the Board
of Management, as well as of the market developments in relation to the
functions on a comparative level. The first raise may take place on
January 1, 1996.
d. Incapacity
During the first year of illness during which the (Dutch)
Health Law is applicable, and the two consecutive years during which
the incapacity applies according to WAO/AAW, the Company shall
supplement the benefits under the Health Law and/or WAO/AAW (or legal
regulation taking its place and/or any addition to it) up to 100% of
the salary prevalent on the day preceding the first sick day, applied
in a manner as described in indent c of this article.
Benefits on the basis of above insurances shall, in case the
Member of the Board of Management retires during the period of illness
or in case of incapacity, be deducted from the pension benefits for
the corresponding period.
e. Recovery clause
The Company is not obligated to make any payment on account of
incapacity, as meant in indent d. of this article, if and to the
extent the Member of the Board of Management can exercise a claim
against a third party with regard to a damage compensation claim
because of lost salary. In the latter case, the Company will disburse
the amounts as per indent d. of this article by way of advance to the
damage compensation to be received from the third party, and against a
cash-in waiver by
4
6
Member of the Board of Management of his right to the damage
compensation up to the sum of the advances paid out by the Company.
The obligation of the Company to turn over to the Member of the Board
of Management the cashed-in damage compensation amounts will be
legally compensated with the advances disbursed to him.
Article 4 - Secondary Employment Conditions
a. Vacation Entitlements
The Member of the Board of Management is entitled to thirty
days of vacation per year. Member of the Board of Management shall
take his vacation following mutual consultation with the other members
of the Board of Management. In case of a lengthy absence, the Member
of the Board of Management shall so advise the Board of Supervisors.
b. Pension Provision
The pension arrangement is included in Attachment E to this agreement.
c. The successors of the Member of the Board of Management are
entitled to a benefit, as meant in article 7A:1639.1 of the Civil
Code.
Article 5 - Tertiary Employment Conditions
a. The Member of the Board of Management is and remains insured
under the voluntary collective health insurance plan of the Company.
The corresponding premiums are totally for account of the Member of
the Board of Management. 60% of the premium owed by the Member of the
Board of Management is reimbursed on a gross basis by the Company on
the basis of insurance class 2a for the Member of the Board of
Management and spouse, and class 3 for his children.
b. Car Allowance
1. Member of the Board of Management has available to him
for business use a suitable vehicle with chauffeur.
2. Besides the car mentioned under b.1., Member of the
Board of Management can make use of the car policy applicable
to the
5
7
Board of Management for private and business use.
c. Telephone Expenses
The company reimburses the Member of the Board of Management
for the complete subscription and call expenses of the telephone
connection at the Member of the Board of Management's home, after he
deducts a contribution for private use in accordance with the
arrangement applicable to the Board of Management.
d. Out-of-pocket Expenses
Expenses, which the Member of the Board of Management incurs
within the framework of carrying out his tasks as member of the Board
of Management for the Company, such as travel and lodging expenses, are
reimbursed on a declaration basis. If so desired, the Chairman of the
Board of Supervisors can request to inspect the expense account
declarations, which are processed on a quarterly basis.
e. Non-reimbursable Expenses
For the non-reimbursable expenses, the Company pays the Member of the
Board of Management a representation compensation, which is set by
the Board of Supervisors, from year to year. For 1994, a
representation reimbursement of Dfl. 18,000 is applicable.
f. Third Party Liability Insurance
As Chairman of the Board of Management, and in all functions
which he holds on the basis of and in connection with the Company, the
Member of the Board of Management is insured during the term of this
agreement and after that, as to his third party liability in
accordance with the policy affixed as Attachment C. The costs of the
insurance are for account of the Company. If the Member of the Board
of Management, on the basis of his above-mentioned liability, which
does not fall under the coverage of above insurance policy, is held
liable for damages according to a judicial decision, the Company shall
compensate the Member of the Board of Management for the material
damage suffered by the Member of the Board of Management,
6
8
unless it is established by judicial decision that the Member of
the Board of Management is guilty of intent or gross neglect. The
Member of the Board of Management is obliged to keep the provision of
this indent f. secret vis-a-vis third parties.
Article 6
If the Member of the Board of Management, owing to a function he occupies by
virtue of his capacity as member of the Board of Management of the Company,
receives an allowance or compensation, he shall deposit same into the treasury
of the Company.
Article 7 - Additional Functions
The Member of the Board of Management binds himself not to be active for any
other employer for the duration of his employment contract, - either directly
or indirectly -, to abstain from doing business for own account and not to
accept a position, nor to occupy any paid and/or time-consuming unpaid
function without the advance written consent of the Chairman of the Board of
Supervisors of the Company. The Member of the Board of Management declares
that on the date he signs this agreement, he is holding the additional
functions as listed in Attachment D, which the Board of Supervisors hereby
approves as per above provision.
The interest and/or compensations attached to the side functions meant in this
article do not need to be deducted from the salary mentioned in article 3,
indent a or from any payment or compensation mentioned in this agreement.
Article 8 - Non Compete Clause
a. The Member of the Board of Management binds himself, during the term
of his employment relationship and during a period of 24 months after
termination of his employment, neither directly nor indirectly,
neither for himself nor for others, to be active or connected in any
form whatsoever in or with any enterprise
7
9
with activities similar to, or otherwise competing with those of the
Company and its affiliates, nor to lend thereby his intervention as an
intermediary, in any form whatsoever, directly or indirectly. Taking
into account the potential damage for the Company and its affiliates,
the Chairman of the Board of Supervisors can, at the request of the
Member of the Board of Management, declare that a specific activity
or connection of the Member of the Board of Management falls outside
of the sphere of competition. Such a request by the Member of the
Board of Management shall not be refused on unreasonable grounds.
The Member of the Board of Management furthermore binds himself to
abstain during the above defined term from any efforts to solicit any
employee(s) of the Company or affiliated companies.
b. If the Member of the Board of Management acts in violation of his
obligations, by virtue of the provision under a of this article, he
shall owe the Company a penalty for each violation without the need
to serve notice, the amount of which is equal to one time the last
applicable gross annual salary of the Member of the Board of
Management, together with a fine equalling Dfl. 50,000 for each day
the violation continues following communication of the corresponding
discovery by the Company, without prejudice to the Company's right
to claim complete compensation of damages instead of the fine.
Article 9 - Confidentiality
a. The Member of the Board of Management is bound to secrecy with regard
to all particulars concerning the affairs of the Company and its
affiliates.
b. The Member of the Board of Management binds himself both during the
term of his employment contract and after the employment agreement
has terminated for whatever reason, not to divulge to anybody in any
way whatsoever any information, knowledge or data related to the
affairs of the Company and its affiliates, about which
8
10
he has obtained knowledge during or as a result of his employment
contract with the Company and about which secrecy was imposed on him,
or the confidential character of which is known to him and should be
known by him.
c. The Member of the Board of Management shall only utilize information,
knowledge or data as meant under b of this article within the
framework of his activities by virtue of his employment contract with
the Company.
d. If the Member of the Board of Management acts in violation of his
obligations by virtue of the provisions in indents a, b and c of this
article, he shall owe the Company for each violation a fine in the
amount of one time the last applicable gross annual salary, without
prejudice to the right of the Company to claim complete compensation
of damages instead of the fine.
Article 10 - Documents
The Member of the Board of Management is prohibited in any way whatsoever from
having or keeping in his private possession documents or correspondence or
duplicates of them which he received in connection with his activities at the
Company, except to the extent and for the period of time this is required for
carrying out his activities for the Company. In each case, the Member of the
Board of Management is obliged, even without the corresponding request, to
immediately turn such documents, correspondence or duplicates of them over to
the Company at the end of his service or in case of non-activity for whatever
reason.
Article 11 - Relief
The Company has the right to relieve the Member of the Board of Management of
his function as a member of the Board of Management of the Company,
without thereby terminating the employment contract with the Member of the
Board of Management, if and as long as the Member of the Board of Management
of the Company is incapable due to illness or accident or otherwise of
9
11
carrying out his activities as member of the Board of Management in due form,
and the Company shall in such case not be held liable for compensation of
damages. Without prejudice to the foregoing, the Company retains the right to
terminate the employment thereafter in accordance with the provisions of this
agreement.
Article 12
a. All disputes, which might arise by virtue of the present agreement, as
well as of subsequent agreements, which might be the result thereof,
will be decided in accordance with the Regulations of the Dutch
Arbitrage Institute in Rotterdam. The Arbitration Court shall consist
of three arbiters. The arbitrage site shall be Utrecht.
b. This agreement shall be subject to Dutch law.
c. Amendments or additions to this agreement must be set forth in writing
in order to have legal validity.
Article 13
The attachments form an integral part of this agreement.
They are: A. Regulation concerning voluntary early retirement
B. Regulation regarding termination of employment
C. Third party liability insurance
D. Additional functions
E. Pension letter
Thus drawn up in duplicate and signed, in Utrecht on November 9,
1994
(signed) (signed)
XXXX XXX/D.E., N.V. F. Xxxxxxx
X.X. van Liemt
10
12
Attachment A
This Attachment is an integral part of the Labor Agreement dated November 9,
1994.
1. Prior to reaching the pension entitlement age of 62, but after
reaching age 57 1/2, the Company has the right to request the Member
of the Board of Management to retire as Chairman of the Board of
Management for reasons at Company's discretion.
If the Company requests the Member of the Board of Management to
retire in this manner, whereby the Company observes a notice of at
least 6 months, the Member of the Board of Management, without any
reservation and with his full cooperation, shall accept such
resignation at the desired moment specified to this effect.
2. The Company hereby grants the Member of the Board of Management the
right to resign voluntarily upon his request at age 60, whereby
the Member of the Board of Management shall observe a notice of at
least 6 months.
3. In case of resignation as Chairman of the Board of Management as a
result of the provision sub 1, resp. 2 of this Attachment during the
period starting on the date of termination of his employment with the
Company until the effective date of his pension being 62 years, the
Member of the Board of Management shall be entitled to an arrangement
for voluntary early retirement, which is applicable or declared to be
applicable for members of the Board of Management.
4. For the Member of the Board of Management who retires as a member of
the Board of Management in accordance with the provision sub 1 of 2 of
this Attachment, in deviation from the regulation in effect
for the other employees of the Company, an allowance applies on the
basis of 90% of the gross annual salary paid out last during the first
year starting on the date of termination of his employment with the
Company and on the basis of 80% of the gross annual salary received
last for the
11
13
remaining period until reaching age 62, whereby the Board of
Supervisors can decide to index the annual salary.
The required provision for this arrangement shall be made by the
Company. The Company has the right to transfer the rights and
obligations by virtue of the arrangement provided for in this
Attachment A to a Foundation which is set up for this purpose for the
benefit of the members of the Board of Management of the Company.
5. To the extent that the Member of the Board of Management after
above-mentioned arrangement becomes effective receives income from
other sources or acquires income from his independent enterprise,
while such income on a gross basis together with the allowances
according to sub 3 and 4 of Attachment A exceeds 100% of
above-mentioned gross annual salary paid out last, the excess shall be
withheld from the allowance owed by the Company. Remuneration paid
for carrying out the Supervisor's function is not deemed to form part
of above-mentioned income from employment or from independent
entrepreneurship. Of this type of income meant here, the Member of the
Board of Management shall always prepare and submit a detailed
accounting to the Company.
6. At the end of the employment contract, the Member of the Board of
Management shall resign all directorships/administrative functions in
enterprises affiliated with the Company and to affix all signatures
required to this effect and to lend his cooperation.
Thus drawn up in duplicate and signed in Utrecht on Nov. 9, 1994.
(signed) (signed)
XXXX XXX/DE N.V. F. Xxxxxxx
X.X. van Liemt
12
14
Attachment B
This attachment forms an integral part of the Labor Agreement dated November 9,
1994.
The following arrangement applies to the Member of the Board of Management for
the period starting with his appointment as Chairman of the Board of Management
until he reaches age 57 1/2.
1. If the Company terminates the employment prior to the Member of the
Board of Management reaching age 57 1/2 without observing the 6
months' notice, or while observing the six months' notice for
reasons other than for cause, as meant in article 7A:1639.p of the
Civil Code - if necessary, in case of a difference of opinion about
this as decided by a judge of the highest instance - the Company
shall owe the Member of the Board of Management an amount equal to:
a) either 2.5 (two and a half) times the gross annual salary
received last, as meant in article 3 indent a of the
employment contract, in case of termination without observing
the notice of six months;
b) or 2 (two) times the gross annual salary received last, as
meant in article 3 indent a of the employment contract, in
case of termination while observing the notice of
six months;
c) increased by one gross monthly salary, as meant in article 3
indent a of the employment contract for each year the Member
of the Board of Management exceeds age 50.
This allowance shall be paid out by the Company in monthly
installments, each amounting to 1:30 of the total amount in case of
sub a, or 1:24 of the total amount, in case of sub b, such increased
each time by the number of installments in accordance with the
provision sub c, this however while making all mandatory withholdings
and furthermore without prejudice to provision sub 2 of this
Attachment. During the period mentioned no employment agreement
exists between the Member of the Board of Management and the Company.
13
15
By the end of the employment contract, a premium-free policy will be
provided for the pension entitlements built up during the period of
employment, on the basis of an actuarial computation.
The Member of the Board of Management can remain insured under the
collective health plan subscribed to by the Company, however without
being entitled to a Company contribution in the premiums.
All employment conditions, to the extent not explicitly provided for
otherwise, are automatically terminated at the end of the employment
contract.
2. Over the payments meant under sub 1, the Company shall withhold the
pro rata portion of 2/3 of all income of the Member of the Board of
Management as mentioned below, acquired during the first year
after termination of employment and 1/3 of all income mentioned
hereinafter acquired from the beginning of the second year after
termination of employment for a period ending on the last day of the
month during which the final installment payment meant sub 1 takes
place. "All income" means all earnings from employments and/or
independent entrepreneurship and/or as adviser and/or supervisor, if
such an activity or connection relates to an enterprise with
activities in a field which are similar to or otherwise competing
with those of the Company and its affiliates.
In order to be able to apply these deductions, the Member of the Board
of Management shall supply the Company with a monthly statement of all
income mentioned above. To verify this, the Company shall have the
right to request all relevant information from a relevant income tax
inspector, as well as from the employers of the Member of the Board of
Management.
3. At the end of the employment contract, the Member of the Board of
Management shall resign all directorships/administrative functions
with the Company's affiliates and shall execute all documents and
14
16
lend his full cooperation to this effect.
Thus drawn up in duplicate and signed in Utrecht on November 9, 1994.
(signed) (signed)
XXXX XXX/DE N.V. F. Xxxxxxx
X.X. van Liemt
15
17
Attachment C
This attachment forms an integral part of the Labor Agreement dated November 9,
1994.
(W.A. Policy)
This attachment refers to a third-party insurance policy which is part of an
overall corporate insurance policy in Dutch language and which contains
confidential information.
16
18
Attachment D
This attachment forms an integral part of the Labor Agreement dated Nov. 9,
1994.
Additional functions held by the Member of the Board of Management at the time
of signing this agreement:
None
17
19
Stichting
Attachment E "Excedentenpensioenfonds
Xxxxx Xxxxxxx"
Translation from originial Dutch version
---------------------------------------
Posrbus 1428
3600 BK MAARSSEN
Mr. F.L.V. Meysman
Xxxxxxxxxxxxxx 0, 0000
Xx Xxxxxxxxx,
Xxx Xxxxxxxxxxx
Utrecht, February 16, 1995
(L-0995.02)
Dear Xx. Xxxxxxx,
Based on your membership of the "Excedentenpensioenfonds Xxxxx Xxxxxxx"
Foundation and in accordance with the provisions of Article 11, clause 5 of
the Foundation's by-laws, the following pension entitlements apply to you with
effect from 19 April 1994, subject to the terms and provisions of the
Foundation's by-laws.
a. An old-age pension, commencing on the first day of the month in which you
reach the age of 62, set at 50% of your last annual salary. In addition,
until the date on which you become eligible for a statutory old-age pension
(AOW) the required employee's and employer's social security insurances
contributions will be paid/refunded by the Foundation; however, with effect
from the date of commencement of the AOW pension an amount will be
deducted from the old-age pension in respect of AOW, calculated according
to the formula:
SMW x 0.0125
------
0.0175
where SMW - statutory minimum wage including holiday bonus as of 1
January of the year of your retirement, or 10/7 x the joint gross AOW
pension entitlements, including holiday payments, applicable at the same
date to an eligible married couple, both of whom are aged 65 or over, if
this results in a lower total.
N.B. For the purpose of calculating your severance rights the date of
commencement of this pension commitment shall be taken as 16 April
1992. The AOW amount to be deducted in determining the Foundation's
obligations issuing from your severance rights is calculated as
follows:
1
SMW x 0.0125 x m
------ -
0.0175 n
20
STITCHTING
"EXEEDENTENPENSIOENFONDS
XXXXX XXXXXXX"
-2-
where SMW(1) represents the above-mentioned minimum wage as of 1 January
of the year used for computation, in the number of years' service with
Xxxxx Xxxxxxx and in the number of years between the commencement of your
employment with Xxxxx Xxxxxxx and the date of commencement of your AOW
pension.
For the year 1994 you are entitled to an old-age pension from the age
of 62 in the amount of NLG 332,000, - p.a., from which there will be an AOW
deduction of NLG 25,314.00 p.a. from age 65.
The old-age pension is payable from the first day of the month in which
you reach your sixty-second birthday and will terminate on the last day of
the month of your decease.
b. A widow's pension totalling 70% of the old-age pension described under a.
In the case of your death in service, the widow's pension to which your
spouse is entitled will be increased on a temporary basis.
This temporary supplement to the widow's pension will be paid at the
same time as the widow's pension, but in no case beyond the first day of
the month in which the widow reaches the age of 65, and will total 30% of
the old-age pension to which there is an entitlement at that pension date.
For 1994 the widow's pension totals NLG 255,400,- p.a. and the temporary
widow's pension NLG 96,600,-p.a.
The widow's pension will be payable from the date of your decease, or -
if you were already in receipt of an old-age pension - on the first day of
the month following your decease and will terminate on the last day of the
month of decease of the widow.
c. Orphans' pension for all eligible orphans together will be calculated on
the basis of the following table of percentages of the old-age pension
described under a:
no. of children no. of children having
having lost one parent % lost both parents %
---------------------- ---- ---------------------- -----
1 20 1 20
2 30 2 45
3 or more 40 3 60
4 or more 75
the total orphans' pension will be divided equally among the eligible
children.
21
STICHTING
"EXEDENTENPENSIOENFONDS
XXXXX XXXXXXX"
-3-
The pensions will be paid monthly in arrears.
Pension entitlements which (may) accrue to yourself or your next-of-kin from
Stichting Pensioenfonds Xxxxx Xxxxxxx, and any pension entitlements deriving
from previous employers are deducted from the total pension entitlements
described under a-c above, so that there will be claims on this Foundation only
to the extent that entitlement exceeds the latter entitlements.
In order to simplify the procedure for deducting pensions deriving from
pensionschemes elsewhere, it will be sufficient if you or your next-of-kin
report annually to this Foundation of the pension payments received on account
of pensionschemes with previous employers, so that these can be offset against
your claims on this Foundation.
You will receive an annual pension statement indicating the amount of the
entitlements listed under a-c above.
Stichting Excedentenpensioenfonds
Xxxxx Xxxxxxx
