Stock Unit Agreement - Chiquita Brands International, Inc. and Carl H. Lindner
STOCK UNIT AGREEMENT
THIS AGREEMENT, entered into as of February 13, 2002 (the "Agreement
Date"), by and between Carl H. Lindner (the "Participant") and Chiquita Brands
International, Inc. (the "Company");
WITNESSETH THAT:
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WHEREAS, the Company maintains the Chiquita Brands International, Inc.
Stock Unit Plan for the benefit of the Participant;
WHEREAS, consistent with the "Preliminary Outline of Principal Terms of
Chapter 11 Plan of Reorganization (the "Plan of Reorganization") attached as
Exhibit A to Form 8-K of Chiquita Brands International, Inc." filed November 12,
2001, the Company is to enter into a stock unit agreement with the Participant
pursuant to the terms of such Plan; and
WHEREAS, the Company and the Participant agree that this Agreement fulfills
the Company's obligation with respect to such grant, and the delivery of shares
of Stock (as defined in paragraph 10);
NOW, THEREFORE, IT IS AGREED, by and between the Company and the
Participant, as follows:
1. Award. Subject to the terms of this Agreement, upon consummation of the
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Plan of Reorganization, the Participant shall be granted the right to receive
800,000 shares of Stock (the "Stock Units"). The Participant's right to the
grant of Stock Units under this Agreement shall be contingent on the
consummation of the Plan of Reorganization, and no benefits shall be provided to
the Participant under this Agreement absent the consummation of the Plan of
Reorganization.
2. Account. As of the Consummation Date (as defined in paragraph 10), the
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Company shall establish a bookkeeping account in the name of the Participant
(the Participant's "Account") which shall be credited with 800,000 Stock Units
as of that date. Each Stock Unit will represent the Participant's right to
receive one share of Stock. The Account will be increased to reflect dividends
payable with respect to Stock during the period between the Consummation Date
and the Delivery Date (as defined in paragraph 3), with the Account to be
increased by the number of Stock Units equal to the number of shares of Stock
which could be purchased with the dividends (assuming each Stock Unit was a
share of Stock), based on the Average Price (as defined in paragraph 10, but
substituting "ex-dividend date" for the term "Consummation Date") of such Stock.
In addition, during the period between the Consummation Date and the Delivery
Date, the Account shall be adjusted to reflect stock splits, stock dividends,
and other similar transactions to the same extent as such adjustment would apply
if each Stock Unit constituted a share of Stock at the time of such transaction.
3. Delivery Date. On the Delivery Date, the Company will deliver to the
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Participant the number of shares of Stock equal to the number of Stock Units
credited to his Account on the Delivery Date free of all restrictions, and the
Account will terminate. Subject to the following,
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the "Delivery Date" will be the one-year anniversary of the Consummation Date.
However, the Participant may elect, as to all shares of Stock to be delivered
under this Agreement, to defer the Delivery Date for six months thereafter by
written notice to the Company no less than 90 days prior to the otherwise
scheduled Delivery Date. The Participant may exercise this deferral election one
additional time as to all shares of Stock to be delivered under this Agreement
with similar 90 day notice prior to the last extended date. However, if any of
the following events occurs prior to the date that would otherwise be the
"Delivery Date" in accordance with the foregoing, the Delivery Date will be
automatically accelerated, without further action on the part of the
Participant, to the first to occur of the following:
(i) The first date as of which the average closing price per share of Stock
over any five consecutive trading days is 25% or more below the Average
Price (as defined in paragraph 10).
(ii) The first date as of which the previous day's closing price per share of
Stock is 40% or more below the Average Price.
(iii) The first date as of which the Participant's membership on the Board of
Directors terminates for any reason.
(iv) The date immediately prior to the date of a Change in Control (as defined
in paragraph 10), or, if earlier, the date immediately prior to the date of
a merger or combination of the Company with another entity.
In no event, however, will the Delivery Date occur prior to the Consummation
Date.
4. Participant's Rights to Shares. Prior to the Delivery Date, (a) the
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Stock Units will constitute an unfunded, unsecured promise by the Company to
deliver the shares of Stock in accordance with the Agreement, (b) the
Participant shall not be treated as owner of the shares, and (c) the Participant
shall be not permitted to vote the Stock Units.
5. Registration. Subject to the following provisions of this paragraph 5,
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but notwithstanding any other provision of this Agreement, the Company shall
have no liability to deliver any shares of Stock under this Agreement or make
any other distribution of benefits under this Agreement unless such delivery or
distribution would comply with all applicable laws (including, without
limitation, the requirements of the Securities Act of 1933), and the applicable
requirements of any securities exchange or similar entity. The Participant will
have the right to request registration, at the Company's expense, under the
Securities Act of 1933 of the shares of Stock delivered to him on the Delivery
Date; provided that the Company shall not be obligated to keep such registration
in effect for more than 90 days. The Company will file a registration statement
as soon as practicable after receiving a request from the Participant; provided
that the Company shall not be required to make such a filing prior to the
Delivery Date and that the Company shall have the right to postpone such filing
and/or the effectiveness of the filing if, in the Company's judgment, it would
be in the best interests of the Company to do so. If the Company chooses to
postpone such filing it will notify the Participant in writing of the
postponement and of the reason for the postponement.
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6. Withholding. At the time of grant of the Stock Units, the Participant
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will be responsible for payment of Social Security withholding taxes, if any are
due from the Participant. At the Delivery Date, the Participant will be
responsible for payment of income and other tax withholding then due by reason
of the distribution. The obligation to pay the withholding amounts at the
Delivery Date may be satisfied by any of the following methods, as elected in
advance by the Participant:
(a) A check from the Participant payable to the Company.
(b) A loan from the Company, with the loan to (i) bear interest at the AFR Rate
which shall be payable quarterly in arrears on the last day of each
calendar quarter during which such loan is outstanding, (ii) provide that
the principal balance shall be due at maturity, (iii) mature on the third
anniversary of the date of inception of the loan, (iv) be a personal
obligation of the Participant, and (v) be secured by shares of Stock
delivered under this Agreement which, as of the Delivery Date, have a value
equal to the principal amount of the loan. "AFR Rate" means the minimum
applicable federal rate in effect on the date of inception of the loan
necessary to avoid the imputation of income and gift for federal income tax
purposes.
7. Limit on Alienation. Except as otherwise provided in this paragraph 7,
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the Stock Units are not transferable other than by will or by the laws of
descent and distribution. Notwithstanding the foregoing, the Participant, with
the approval of the Committee (as defined in paragraph 10), may transfer the
rights as to the Stock Units for no consideration to or for the benefit of the
Participant's Immediate Family (as defined in paragraph 10), including, without
limitation, to a trust for the benefit of the Participant's Immediate Family or
to a partnership or limited liability company for one or more members of the
Participant's Immediate Family, subject to such limits as the Committee may
establish, and the transferee shall remain subject to all the terms and
conditions applicable to this Agreement and the Stock Units prior to such
transfer. The foregoing right to transfer the Stock Units shall apply to the
right to consent to amendments to the Agreement.
8. Heirs. Subject to the terms of this Agreement, any benefits payable to
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the Participant under this Agreement that are not paid at the time of the
Participant's death shall be paid at the time and in the form determined in
accordance with the provisions of this Agreement, to the beneficiary designated
by the Participant in writing filed with the Committee in such form and at such
time as the Committee shall require. If a deceased Participant fails to
designate a beneficiary, or if the designated beneficiary of the deceased
Participant dies before the Participant or before complete payment of the
benefits distributable under this Agreement, the Committee shall direct that
amounts to be paid under this Agreement be paid to the legal representative or
representatives of the estate of the last to die of the Participant and his
beneficiary.
9. Not Employment Agreement. This Agreement does not constitute a contract
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of employment, and does not give the Participant the right to be retained in the
employ of the Company or its subsidiaries or to continue to provide services to
the Company or its subsidiaries, nor any right or claim to any benefit under
this Agreement, unless such right or claim has specifically accrued under the
terms of this Agreement.
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10. Definitions. In addition to the other definitions contained in this
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Agreement, the following definitions shall apply:
(a) The "Average Price" shall be the mean between the high and the low sales
prices of Stock on the Consummation Date on the New York Stock Exchange
Composite Tape (or the principal market in which shares of Stock are
traded, if such shares are not listed on that Exchange on such date), or if
such shares were not traded on such date, the mean between the high and the
low sales prices of the shares of Stock on the next succeeding trading day
during which they were traded.
(b) The term "Board" means the Board of Directors of the Company.
(c) A "Change in Control" shall be deemed to occur on the date (after the
Consummation Date) on which occurs either of the following: (i) any person
becoming the beneficial owner, directly or indirectly, of securities
representing 25% or more of the combined voting power the Company's
outstanding securities, or (ii) there is consummated a merger or
consolidation of the Company or any direct or indirect subsidiary of the
Company with any other corporation, or there is consummated a sale of all
or substantially all of the assets of the Company or a similar transaction,
and in any such case the voting securities of the Company outstanding
immediately prior to such transaction do not represent at least 50% of the
combined voting power of the securities of the Company or the surviving or
acquiring entity, or any parent thereof, outstanding immediately after such
transaction.
(d) The "Committee" shall be the Compensation Committee of the Board.
(e) The "Consummation Date" shall be the date of consummation of the Plan of
Reorganization.
(f) The term "Immediate Family" means the Participant's spouse, parents,
children, stepchildren, adoptive relationships, sisters, brothers and
grandchildren (and, for this purpose, shall also include the Participant).
(g) The term "Stock" means shares of common stock of the Company.
11. Administration. The Committee will have the authority and discretion to
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administer and interpret this Agreement, and to make all other determinations
that may be necessary or advisable for the administration of this Agreement. Any
interpretation of this Agreement by the Committee and any decision made by the
Committee with respect to this Agreement is final and binding on all persons.
12. Amendment. This Agreement may be amended by written Agreement of the
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Participant and the Company, without the consent of any other person.
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IN WITNESS WHEREOF, the Participant has hereunto set his hand, and the
Company has caused these presents to be executed in its name and on its behalf,
all as of the Agreement Date.
Participant
Carl H. Lindner
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Chiquita Brands International, Inc.
By: Steven G. Warshaw
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Its: President and Chief Executive Officer
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