1
EXHIBIT 11
EMPLOYMENT & NON-COMPETITION AGREEMENT
1. This Agreement is effective September 1, 1997.
2. Employee is Xxxxx X. Xxxxxxx. The Company is DEKALB Genetics
Corporation and its subsidiaries and affiliates.
3. Employee shall be employed by the Company until the anniversary of the
effective date of this Agreement and until each subsequent anniversary
of such effective date except that either Employee or the Company may
terminate such employment as of any particular such anniversary by
providing the other party written notice thereof prior to such
anniversary.
4. Employee shall work for the Company in an executive capacity.
5. Employee shall perform the duties assigned by the Company ("Duties") at
such location(s) as the Company reasonably requires.
6. Employee shall devote full efforts during normal business hours to
Duties, and the Company shall receive all of the benefits related to
Duties.
7. Employee's annual compensation is described in Exhibit A. If the
Exhibit is not updated prior to an anniversary date, the terms of the
Exhibit shall continue until a new written Exhibit is agreed to by the
parties.
8. If Employee dies or becomes disabled and cannot perform Employee's
Duties with reasonable accommodation, Employee or employee's estate
shall receive an annual performance bonus equal to the target annual
performance bonus in effect at the Employee's death or date of
disability, prorated for the portion of the year up to the date of such
death or disability.
9. The Company will pay Employee's travel and other business expenses,
consistent with company policies and as supported by appropriate
documentation.
10. Other than in the normal course of Duties with the Company, Employee
will not at any time, during or after employment by the Company,
disclose any non-public information relating to the Company. Employee
agrees to treat as confidential all such information, whether written
or otherwise, including but not limited to, information regarding
financial reports, employees, customers, products, costs, prices,
services, research programs, patents, equipment, systems, production
procedures, operations, potential acquisitions, new location plans,
prospective and executed contracts and other business arrangements.
11. Upon termination of employment, Employee will return to the Company all
assets and all books, records, lists and other written materials,
including information in computers or computer disks, whether furnished
by the Company or prepared by the Employee, which contain any
information relating to the Company's business.
2
12. Employee shall make full and prompt written disclosure to the Company
of any business opportunity of which Employee becomes aware and which
relates to the business of the Company.
13. All inventions, discoveries, ideas, improvements and designs made or
conceived by Employee, and copyrights to all software, writings or
other materials prepared by Employee, in each case solely or with
others, while employed by the Company, during or after working hours,
which are related to the actual or anticipated business of the Company,
belong exclusively to the Company. Employee shall make full and prompt
written disclosure to the Company of the above. At the request and
expense of the Company, either before or after termination of
employment, Employee shall execute a written assignment of and shall
assist in acquiring and maintaining patent or other proprietary
information protection of the Company's rights to such inventions,
ideas, improvements, designs or copyrights.
14. For three years after employment, Employee will not, in any way or
capacity, solicit any officer, director, employee or other individual:
A. to leave employment or any position with the Company,
B. to compete with the business of the Company, or
C. to violate the terms of any agreement with the Company.
15. For 24 months following termination of Employee's employment with
Company for any reason whatsoever, Employee will not, in any way or
capacity, participate in or have any employment, consultant, financial,
management or other interest in any business enterprise anywhere that
engages in or plans to engage in (either at the time of Employee's
termination and/or during the 24-month period following such
termination) significant or substantial competition with any business
conducted by the Company.
16. During the period set forth in paragraph 15, the Company shall (except
in the case of Employee's termination on account of death or inability
to perform Duties due to disability) pay Employee one-twelfth of
Employee's base salary and one-twelfth of Employee's target annual
performance bonus (both at the rate in effect on Employee's termination
date) for every one month during the period set forth in paragraph 15.
The Company shall not, however, be obligated to make such payments
during any period of time that Employee is in breach of paragraph 15 of
this Agreement.
17. Payments by the Company to Employee pursuant to paragraph 16 shall be
in addition to the Company's severance policy under change of control.
Payments pursuant to paragraph 16 shall not, however, be in lieu of any
compensation due Employee for Company's breach of this Agreement (e.g.,
the Company's obligation to make salary and bonus payments in the event
of the Company's termination of Employee without cause during the term
of this Agreement or any annual extension thereof). Payments by the
Company to Employee pursuant to paragraph 16 shall be in addition to
the Company's severance policy under change of control. Payments
pursuant to paragraph 16 shall not, however, be in lieu of any
compensation due Employee for Company's breach of this
3
Agreement (e.g., the Company's obligation to make salary and bonus
payments in the event of the Company's termination of Employee without
cause during the term of this Agreement or any annual extension
thereof). The Company agrees to be liable for, reimburse Employee for,
and advance Employee amounts for taxes required to be paid by Employee
under Section 4999 of the Internal Revenue Code of 1986, as amended,
due to compensation, fringe benefits and other remuneration provided by
the Company to the Employee ("Remuneration"), and any interest and
penalties with respect to such taxes (such taxes, interest and
penalties, "Excise Tax") and to provide the Employee with an additional
payment (a "Gross-Up Payment") in an amount such that after payment by
the Employee of all taxes (including any interest or penalty imposed
with respect to such taxes), including without limitation any income
taxes (and any interest and penalties imposed with respect thereto) and
Excise Tax imposed upon the Gross-Up Payment, the Employee retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Remuneration. The Company agrees to pay all such amounts pursuant to,
and all other amounts with respect thereto provided by and pursuant to,
the terms of the Company's policies and procedures in effect at the
time of the change of ownership or effective control of the Company
pursuant to which such Excise Tax may become payable.
18. Employee agrees that (a) both the duration and geographic scope of
paragraph 15 are necessary to reasonably and adequately protect the
Company's businesses, and (b) the compensation provided in paragraph 16
will adequately compensate Employee during transition to new employment
or other status.
19. Employee will not begin employment with another employer without first
giving at least thirty days notice to the Company. Prior to accepting
any new employment, Employee shall inform his new employer of the
existence of this Agreement and provide a copy hereof to such new
employer.
20. Except as otherwise provided in this Agreement, Employee's rights under
any employee benefit plan shall not be affected by this Agreement.
21. Employee has received a copy of both the DEKALB Antitrust Compliance
Policy and the DEKALB Business Conduct Standards. Employee will adhere
to the policies and principles contained therein, and will require all
employees reporting to Employee to adhere to those policies and
principles.
22. The Company shall have the right, at its own expense and for its own
benefit, to take out life insurance on Employee in such amount or
amounts as it shall see fit, and Employee agrees to cooperate with the
Company in obtaining such insurance.
23. The Beneficiary Designation form attached hereto as Exhibit B is a part
of this Agreement. In the event of Employee's death when no beneficiary
designation is in effect, the Company shall make payment of any amounts
to which Employee was entitled to Employee's personal representative,
heirs, devisees or legatees. Employee may change Exhibit B at any time,
by providing an amended version to the Personnel Department.
24. Without limiting the rights of the Company to pursue all other legal
and equitable rights available to the Company, it is agreed that: (a)
the Duties performed by Employee are of a
4
special, unique, unusual and extraordinary character which give them a
peculiar value, and the loss of such performance cannot be reasonably
and adequately compensated in damages in an action at law, and (b)
remedies other than injunctive relief cannot fully compensate the
Company for violation of Paragraphs 10 through 19, of this Agreement;
accordingly, the Company shall be entitled to injunctive relief to
prevent violations of such paragraphs or continuing violations thereof.
All of Employee's covenants in and obligations under Paragraphs 10
through 19, of this Agreement shall continue in effect notwithstanding
termination of Employee's employment under any circumstances
whatsoever.
25. If in any proceeding a term, geographic or other restriction, covenant
or promise contained herein is found to be unreasonable, unlawful or
otherwise invalid and for that reason unenforceable, then such term,
geographic or other restriction, covenant or promise shall
automatically be deemed modified to the extent necessary to make it
enforceable.
26. This Agreement shall be binding upon the Company, its successors and
assigns and upon Employee, Employee's heirs, executors and
administrators. This Agreement may be assigned by the Company or
transferred by operation of law. Employee agrees that if the Company is
sold or Employee is transferred to a subsidiary or affiliate, or from
one subsidiary or affiliate to another, all terms and conditions of
this Agreement shall remain in force as if it initially had been made
with that purchaser, subsidiary or affiliate.
27. Notices contemplated by this Agreement shall be effective when
delivered in writing to the Company at 0000 Xxxxxxxx Xxxx, XxXxxx, XX
00000, ATTN: General Counsel or to Employee at 00000 Xxxxxxxx Xxxx,
Xxxxxxxx, XX 00000.
28. This Agreement, including Exhibits A and B as they may be amended from
time to time, all confidentiality agreements and all invention
assignment agreements signed by Employee during any employment with the
Company, contain the entire agreement between the parties hereto with
respect to the transactions contemplated herein; together they
supersede all prior negotiations and other agreements, both oral and
written, between the parties and they cannot be modified except by an
instrument in writing signed by both parties.
Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
---------------------------
DEKALB Genetics Corporation
By: /s/ Xxxx XxXxxxx
------------------------
5
REVISED
FY1998 EARNINGS AGREEMENT
FOR
XXXXX X. XXXXXXX
This will confirm and describe your earnings opportunity for Fiscal 1998.
Your base salary during fiscal 1998 shall be paid at the annual rate of
$350,000.
You are eligible for a performance bonus targeted at a total of $277,000. The
amount you actually earn may be greater or lesser than this target depending on
final FY'98 performance compared to expectations. Your bonus will be based on
the following:
Fifty percent, or a target bonus of $152,500, will be based on DGC's
FY'98 earnings per share as follows:
FY'98 DGC EARNINGS % OF BONUS
PER SHARE TARGET PAID
--------- -----------
<$0.80 0%
0.80 50
0.96 100
1.20 200
Twenty-five percent, or a target bonus of $76,250, will be based on
DGC's FY'98 Return on Shareholder's Equity ("XXX") as follows:
FY'98 DGC % OF BONUS
XXX TARGET PAID
--------- ------------
< 16.0% 0%
16.0 100
17.0 150
18.0 200
Ten percent, or a target bonus of $30,500, will be based on the FY'98
U.S. Bonus Matrix, as shown on Exhibit A-1.
6
FY1998 Earnings Agreement - Xxxxx X. Xxxxxxx
Page 2
Fifteen percent, or a target bonus of $45,750, will be based on
accomplishment of the following:
$22,875 - Divest DEKALB Swine Breeders, Inc. on terms and
conditions attractive to the Company and acceptable
to the Board of Directors.
$22,875 - Develop processes for planning research
expenditures, measuring research program progress,
and tracking all research programs relative to
meeting corporate strategic planning for research.
For any bonus determined by table where the final results fall between two
stated levels, the bonus percentage paid will be determined by interpolation on
a prorata, straight-line basis between the surrounding two stated levels. In
order to be eligible for any bonus payment, you must be employed on August 31,
1998.
You may at this time elect when to receive your performance bonus payment (prior
to the bonus actually being earned). Please indicate when you desire payment.
X 1998
----------
1999
----------
Please review this agreement carefully. If, after your review, you agree with
and understand the above, please sign both copies, keep one and return the other
to Human Resources.
DEKALB
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Employee:
11-13-97 By: /s/ Xxxxx X. Xxxxxxx
----------------------------------- ------------------------------
Date Xxxxx X. Xxxxxxx
7
BENEFICIARY DESIGNATION
I hereby designate the following as my beneficiary or beneficiaries to
receive any payments to which I may be entitled under the Agreement to which
this Exhibit B is attached and which become payable following my death. The
Company shall be fully protected in making any such payments to such designated
beneficiary or beneficiaries.
Primary Beneficiary Relationship Social Security Number
------------------- ------------ ----------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Contingent Beneficiaries Relationship Social Security Number
------------------------ ------------ ----------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Employee
Date:
------------------------------ -------------------------
