Consulting Agreement
This agreement (the “Agreement”)
is effective as of the 1st day of July, 2009 by and between Xxxxx Limited, a
Bermuda company (“Bunge” or
the “Company”)
and Joao Xxxxxxxx Xxxxxx (the “Consultant”).
The
parties agree as follows:
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1)
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Engagement
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Subject
to the terms and conditions set forth herein, Bunge hereby engages the
Consultant and the Consultant hereby agrees to provide the Consulting Services
(as defined herein) to the Company.
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2)
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Term
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Unless
otherwise extended by Bunge and the Consultant in writing, the term of this
Agreement shall commence on July 1, 2009 and end on December 31, 2009, both
inclusive; provided, however, that this
Agreement may be terminated prior to such termination date by mutual written
agreement of the parties (the “Term”).
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3)
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Services
Contracted
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The
Consultant is being retained by Bunge to provide advice and counsel with respect
to the Company’s global Food and Ingredients business strategy and the
transition of the duties and responsibilities of the position of Managing
Director of Food and Ingredients to a successor (the “Consulting
Services”).
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4)
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Workload,
Schedule and Coordination
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The
Consultant is expected to dedicate an appropriate amount of his time to the
performance of the Consulting Services in accordance with the terms of this
Agreement. However, he will have no set or fixed work
schedule. He will report to and coordinate his workload directly with
the Chief Executive Officer of Bunge.
Nothing
in this Agreement shall prohibit the Consultant from rendering services to any
company not affiliated with the Bunge Group (as defined below) so long as such
activities do not interfere with the Consulting Services to be provided pursuant
to this Agreement and do not violate the terms of this Agreement.
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5)
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Consulting
Fees
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As
compensation for the performance of the Consulting Services, Bunge shall pay the
Consultant US$22,500 per month through the end of the Term, payable monthly, in
arrears. This amount shall be paid no later than fifteen calendar
days after the end of each elapsed month.
In order
to enable the Consultant to perform the Consulting Services, the Company will
reimburse the Consultant for the cost of reasonable business expenses incurred
in the performance of the Consulting Services, subject to the submission of
appropriate documentation by the Consultant, in accordance with the Company’s
business expense reimbursement policies. Reimbursement shall be made
within 45 days after complete documentation is provided to the
Company.
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6)
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Status;
Taxes
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(a)
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Status.
It is expressly agreed that the Consultant shall be acting as an
independent contractor in the performance of the Consulting Services
hereunder and not as an employee of the Company or any of its subsidiaries
or affiliates (the “Bunge
Group”) and, in such capacity, shall not be eligible to participate
in any employee benefit plan or program of the Bunge Group. The
Consultant shall have no authority to act as an agent of the Company and
he shall not represent to the contrary to any
person.
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(b)
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Taxes. It
is intended that the fees paid hereunder shall constitute revenue to the
Consultant. To the extent consistent with applicable law, the
Company will not withhold any amounts therefrom as federal income or
employment tax withholdings or under any other state or federal
laws. The Consultant shall be solely responsible for the withholding
and/or payment of any federal, state or local income or payroll taxes and
shall hold the Company, its officers, directors and employees harmless
from any liability arising from the failure to withhold such
amounts.
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7)
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Protective
Covenants
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(a)
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Confidentiality. The
Consultant agrees with the Company that he shall not at any time during or
subsequent to the end of the Term, except 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 proprietary or confidential
information of or related to the Bunge Group. The Consultant
confirms that all such proprietary and confidential information is and
shall remain the exclusive property of the Bunge Group. All
business records, papers and documents kept or made by the Consultant
relating to the business of the Bunge Group shall be and remain the
property of the Bunge Group.
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(b)
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Nonsolicitation. The
Consultant agrees that, during the Term and during the twelve month period
immediately following the end of the Term, the Consultant shall not,
directly or indirectly: (i) solicit or contact any customer of the
Bunge Group (or any other entity that the Consultant knows is a potential
customer with respect to specific products of the Bunge Group) for any
commercial pursuit that to the knowledge of the Consultant is (or that is
contemplated by any corresponding business plan during the Term to be) in
competition with the Bunge Group; (ii) take away or interfere with or
attempt to take away or interfere with any trade, business or patronage of
any of the customers, partners
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or
suppliers 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 which the Consultant is restricted from doing under this
Agreement; or (iii) offer or aid others to offer employment to employees
of the Bunge Group, or interfere or attempt to interfere with the
relationship, contractual, employment or otherwise, between the Bunge
Group and any of its contractors, consultants or
employees.
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(c)
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Cooperation of the
Consultant. During and after the Term, the
Consultant shall reasonably cooperate with the Company in the defense or
prosecution of any claims or actions which are now in existence or which
may be brought in the future against or on behalf of the Bunge Group 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 Consultant was providing
the Consulting Services. The Company shall reimburse the
Consultant for all reasonable costs and expenses incurred in connection
with his performance under this Section, including, without limitation,
reasonable attorneys’ fees and
costs.
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(d)
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Injunctive
Relief. The Consultant acknowledges that damages for any
breach of this Section 7 will be difficult to determine and inadequate to
remedy the harm which may be caused and, therefore, consents that the
restrictions contained in this Section may be enforced by temporary or
permanent injunction. Such injunctive relief shall be in addition to
and not in place of any other remedies available at law or in
equity.
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8)
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Modifications
to the Agreement; Notices
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No
amendment, modification or waiver of this Agreement will be effective unless and
until executed in writing by both parties hereto.
Any
notice required or permitted to be given hereunder shall be sufficient if in
writing, and such notices must be sent by registered or certified mail to the
last known addresses specified by the parties.
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9)
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Miscellaneous
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This
Agreement constitutes the entire understanding of the parties with respect to
the performance by the Consultant of the Consulting Services and shall supersede
and replace all prior agreements and understandings between the parties hereto
with respect to the same subject.
This
Agreement shall be binding upon and inure to the benefit of the Company and its
affiliates, successors and assigns and shall be binding upon and inure to the
benefit of the Consultant and his heirs and legal representatives. In
no event shall the Consultant’s obligations to perform services for the Company
be delegated or assigned by the Consultant.
This
Agreement may be executed in one or more counterparts, which shall, collectively
and separately, constitute one Agreement.
This
Agreement shall be construed and enforced in accordance with the laws of the
State of New York. Any litigation or other proceeding commenced by
either party to this Agreement for the purpose, in whole or in part, of
enforcing this Agreement or the parties’ respective rights or obligations
hereunder shall be commenced in the federal or state courts of New
York.
Effective
as of July 1, 2009
| XXXXX LIMITED | CONSULTANT |
| By:/s/ Xxxxxxx X. Xxxxxxxx | By:/s/ Joao Xxxxxxxx Xxxxxx |
| Name: Xxxxxxx X. Xxxxxxxx | Name: Joao Xxxxxxxx Xxxxxx |
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Title: Chief
Personnel Officer
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