EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.9
This Executive Employment Agreement (“Agreement”) is made as of the 20th day of January,
2011 between ArborGen Inc., a Delaware corporation (the “Company”), and Xxxxxxx X. Xxxxx (the
“Executive”).
WHEREAS, the Company and the Executive were previously parties to that certain employment
offer letter dated the 25th day of July, 2002 (the “Offer Letter”) which the Company
and the Executive intend to replace with this Agreement;
WHEREAS, the Company desires to continue to employ the Executive and the Executive desires to
continue to be employed by the Company on the new terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows:
1. Employment.
(a) Term. The Company hereby employs the Executive, and the Executive hereby accepts
such employment pursuant to the terms of this Agreement until this Agreement is terminated in
accordance with the provisions of Section 3. (Such period of employment shall be referred to as
the “Term.”)
(b) Position and Duties. During the Term, the Executive shall serve as the Chief
Executive Officer of the Company, and shall have supervision and control over and responsibility
for the day-to-day business and affairs of the Company and shall have such other powers and duties
as may from time to time be prescribed by the Chairman of the Board of Directors of the Company
(the “Board”). The Executive shall devote her full working time and efforts to the business and
affairs of the Company. Notwithstanding the foregoing, the Executive may serve on other boards of
directors, with the approval of the Board, or engage in religious, charitable or other community
activities as long as such services and activities do not interfere with the Executive’s
performance of her duties to the Company as provided in this Agreement.
2. Compensation and Related Matters.
(a) Base Salary. During the Term, the Executive’s initial annual base salary shall be
$275,000. The Executive’s base salary shall be redetermined periodically by the Compensation
Committee. The base salary in effect at any given time is referred to herein as “Base Salary.”
The Base Salary shall be payable in a manner that is consistent with the Company’s usual payroll
practices for senior executives.
(b) Incentive Bonus Compensation. During the Term, the Executive shall be eligible to
receive a cash bonus payment as determined by the Compensation Committee from time to time in
accordance with the Senior Executive Incentive Bonus Plan, or any successor plan adopted by the
Compensation Committee. The Executive’s target annual incentive
compensation shall be 65 percent of her Base Salary. To earn incentive compensation, the Executive
must be employed by the Company on the last day of the performance period; provided, however, that
the Executive may be entitled to a pro rated bonus in the event that her employment is terminated
by the Company without Cause after completing nine or more months of service in the fiscal year in
which such termination occurs, in accordance with the terms of the Senior Executive Incentive Bonus
Plan.
(c) Expenses. The Executive shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by her during the Term in performing services hereunder, in accordance
with the policies and procedures then in effect and established by the Company for its senior
executive officers.
(d) Other Benefits. During the Term, the Executive shall be entitled to continue to
participate in or receive benefits under the Company’s Employee Benefit Plans in effect on the date
hereof. As used herein, the term “Employee Benefit Plans” includes, without limitation, each
401(k) plan, stock option or incentive plan; life insurance plan; medical insurance plan;
disability plan; and health and accident plan or arrangement established and maintained by the
Company on the date hereof for employees of the same status within the hierarchy of the Company.
Any payments or benefits payable to the Executive under a plan or arrangement referred to in this
Section 2(d) in respect of any calendar year during which the Executive is employed by the Company
for less than the whole of such year shall, unless otherwise provided in the applicable plan or
arrangement, be prorated in accordance with the number of days in such calendar year during which
her is so employed. Should any such payments or benefits accrue on a fiscal (rather than calendar)
year, then the proration in the preceding sentence shall be on the basis of a fiscal year rather
than calendar year.
(e) Vacations. During the Term, the Executive shall be entitled to accrue up to 20
paid vacation days in each year, which shall be accrued ratably. The Executive may not carry over
any vacation time past the anniversary year it is earned, unless otherwise approved by the Board,
subject to and in accordance with, the Company’s vacation policy in effect from time to time. The
Executive shall also be entitled to all paid holidays given by the Company to its executives.
(f) Commuting Allowance. The Company shall reimburse the Executive in accordance with
its expense reimbursement policy and procedures for the cost of airfare for no more than one
round-trip economy flight per month and associated ground travel to the Executive’s home in Niwot,
CO, up to a maximum annual limit of $6,000 (net of applicable taxes). Such travel expense
reimbursement shall not be used for purposes of calculating the Executive’s severance or any other
compensatory amounts. Such travel shall be (i) combined with the Executive’s business travel to
the extent possible and (ii) accounted for in accordance with the Company’s travel policy. The
maximum annual limit shall be reviewed by the Company and the Executive on the six-month
anniversary of the date hereof and on at least an annual basis thereafter.
3. Termination. During the Term, the Executive’s employment hereunder may be
terminated without any breach of this Agreement under the following circumstances:
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(a) Death. The Executive’s employment hereunder shall terminate upon her death.
(b) Disability. The Company may terminate the Executive’s employment if she is
disabled and unable to perform the essential functions of the Executive’s then existing position or
positions under this Agreement with or without reasonable accommodation for a period of 180 days
(which need not be consecutive) in any 12-month period. If any question shall arise as to whether
during any period the Executive is disabled so as to be unable to perform the essential functions
of the Executive’s then existing position or positions with or without reasonable accommodation,
the Executive may, and at the request of the Company shall, submit to the Company a certification
in reasonable detail by a physician selected by the Company to whom the Executive or the
Executive’s guardian has no reasonable objection as to whether the Executive is so disabled or how
long such disability is expected to continue, and such certification shall for the purposes of this
Agreement be conclusive of the issue. The Executive shall cooperate with any reasonable request of
the physician in connection with such certification. If such question shall arise and the
Executive shall fail to submit such certification, the Company’s determination of such issue shall
be binding on the Executive. Nothing in this Section 3(b) shall be construed to waive the
Executive’s rights, if any, under existing law including, without limitation, the Family and
Medical Leave Act of 1993, 29 U.S.C. §2601 et seq. and the Americans with Disabilities Act, 42
U.S.C. §12101 et seq.
(c) Termination by Company for Cause. The Company may terminate the Executive’s
employment hereunder for Cause by a vote of the Board. For purposes of this Agreement, “Cause”
shall mean: (i) conduct by the Executive constituting an act of misconduct in connection with the
performance of her duties, including, without limitation, misappropriation of funds or property of
the Company or any of its subsidiaries or affiliates other than the occasional, customary and de
minimis use of Company property for personal purposes; (ii) the commission by the Executive of any
felony or a misdemeanor involving moral turpitude, deceit, dishonesty or fraud, or any conduct by
the Executive that would reasonably be expected to result in injury or reputational harm to the
Company or any of its subsidiaries and affiliates if she were retained in her position; (iii)
continued non-performance by the Executive of her duties hereunder (other than by reason of the
Executive’s physical or mental illness, incapacity or disability) which has continued for more than
30 days following written notice of such non-performance from the Board; (iv) a breach by the
Executive of any of the provisions contained in Section 7 of this Agreement; (v) a violation by the
Executive of the Company’s written employment policies, or (vi) failure to cooperate with a bona
fide internal investigation or an investigation by regulatory or law enforcement authorities, after
being instructed by the Company to cooperate, or the destruction or failure to preserve documents
or other materials known to be relevant to such investigation or the inducement of others to fail
to cooperate or to produce documents or other materials in connection with such investigation.
(d) Termination Without Cause. The Company may terminate the Executive’s employment
hereunder at any time without Cause. Any termination by the Company of the Executive’s employment
under this Agreement which does not constitute a termination for Cause under Section 3(c) and does
not result from the death or disability of the Executive under Section 3(a) or (b) shall be deemed
a termination without Cause.
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(e) Termination by the Executive. The Executive may terminate her employment
hereunder at any time for any reason, including but not limited to Good Reason. For purposes of
this Agreement, “Good Reason” shall mean that the Executive has complied with the “Good Reason
Process” (hereinafter defined) following the occurrence of any of the following events: (i) a
material diminution in the Executive’s responsibilities, authority or duties; (ii) a material
diminution in the Executive’s Base Salary except for across-the-board salary reductions based on
the Company’s financial performance similarly affecting all or substantially all senior management
employees of the Company; (iii) a material change in the geographic location at which the Executive
provides services to the Company; or (iv) the material breach of this Agreement by the Company.
“Good Reason Process” shall mean that (i) the Executive reasonably determines in good faith that a
“Good Reason” condition has occurred; (ii) the Executive notifies the Company in writing of the
first occurrence of the Good Reason condition within 60 days of the first occurrence of such
condition; (iii) the Executive cooperates in good faith with the Company’s efforts, for a period
not less than 30 days following such notice (the “Cure Period”), to remedy the condition; (iv)
notwithstanding such efforts, the Good Reason condition continues to exist; and (v) the Executive
terminates her employment within 60 days after the end of the Cure Period. If the Company cures
the Good Reason condition during the Cure Period, Good Reason shall be deemed not to have occurred.
(f) Notice of Termination. Except for termination as specified in Section 3(a), any
termination of the Executive’s employment by the Company or any such termination by the Executive
shall be communicated by written Notice of Termination to the other party hereto. For purposes of
this Agreement, a “Notice of Termination” shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon.
(g) Date of Termination. “Date of Termination” shall mean: (i) if the Executive’s
employment is terminated by death, the date of death; (ii) if the Executive’s employment is
terminated on account of disability under Section 3(b) or by the Company for Cause under Section
3(c), the date on which Notice of Termination is given; (iii) if the Executive’s employment is
terminated by the Company under Section 3(d), 30 days after the date on which a Notice of
Termination is given; (iv) if the Executive’s employment is terminated by the Executive under
Section 3(e) without Good Reason, 30 days after the date on which a Notice of Termination is given,
and (v) if the Executive’s employment is terminated by the Executive under Section 3(e) with Good
Reason, the date on which a Notice of Termination is given after the end of the Cure Period.
Notwithstanding the foregoing, in the event that the Executive gives a Notice of Termination to the
Company, the Company may unilaterally accelerate the Date of Termination and such acceleration
shall not result in a termination by the Company for purposes of this Agreement.
(h) Resignation on Termination. On the Date of Termination, the Executive shall
resign from all positions with the Company and its subsidiaries. In addition, if the Executive is
then serving as a member of the Board or the Board of Directors of a subsidiary, the Executive
shall tender her resignation from such directorship(s) on the Date of Termination.
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4. Compensation Upon Termination.
(a) Termination Generally. If the Executive’s employment with the Company is
terminated for any reason, the Company shall pay or provide to the Executive (or to her authorized
representative or estate) any earned but unpaid base salary, incentive compensation earned and
payable but not yet paid, unpaid expense reimbursements and accrued but unused vacation (the
“Accrued Benefit”) on or before the time required by law but in no event more than 30 days after
the Executive’s Date of Termination.
(b) Termination by the Company Without Cause or by the Executive with Good Reason. If
the Executive’s employment is terminated by the Company without Cause as provided in Section 3(d),
or the Executive terminates her employment for Good Reason as provided in Section 3(e), then the
Company shall, through the Date of Termination, pay the Executive her Accrued Benefit. In
addition:
(i) subject to the Executive signing a general release of claims in favor of the
Company and related persons and entities in a form and manner satisfactory to the Company
(the “Release”) within the 21-day period following the Date of Termination and the
expiration of the seven-day revocation period for the Release, the Company shall pay the
Executive an amount equal to one times the Executive’s Base Salary (the “Severance Amount”).
The Severance Amount shall be paid out in substantially equal installments in accordance
with the Company’s payroll practice over 12 months, beginning on the first payroll date that
occurs 30 days after the Date of Termination. Solely for purposes of Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”), each installment payment is
considered a separate payment. Notwithstanding the foregoing, if the Executive breaches any
of the provisions contained in Section 7 of this Agreement, all payments of the Severance
Amount shall immediately cease; and
(ii) notwithstanding anything to the contrary in any applicable option agreement or
stock-based award agreement, all stock options and other stock-based awards held by the
Executive shall immediately accelerate and become fully exercisable or nonforfeitable as of
the Date of Termination; and
(iii) if the Executive was participating in the Company’s group health plan immediately
prior to the Date of Termination, then the Company shall pay to the Executive a monthly cash
payment for a period of 12 months, equal to X minus Y, where “X” equals the monthly cost of
health coverage for the Executive and her dependents pursuant to the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended (“COBRA”) and “Y” equals the monthly amount of
the copayment for health insurance premium that was payable by the Executive immediately
prior to the Date of Termination.
5. Change in Control Limitation.
(a) Anything in this Agreement to the contrary notwithstanding, in the event that the amount
of any compensation, payment or distribution by the Company to or for the
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benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the
terms of this Agreement or otherwise, calculated in a manner consistent with Section 280G of the
Code and the applicable regulations thereunder (the “Severance Payments”), would be subject to the
excise tax imposed by Section 4999 of the Code, the following provisions shall apply:
(i) If the Severance Payments, reduced by the sum of (1) the Excise Tax and (2) the
total of the Federal, state, and local income and employment taxes payable by the Executive
on the amount of the Severance Payments which are in excess of the Threshold Amount, are
greater than or equal to the Threshold Amount, the Executive shall be entitled to the full
benefits payable under this Agreement.
(ii) If the Threshold Amount is less than (x) the Severance Payments, but greater than
(y) the Severance Payments reduced by the sum of (1) the Excise Tax and (2) the total of the
Federal, state, and local income and employment taxes on the amount of the Severance
Payments which are in excess of the Threshold Amount, then the Severance Payments shall be
reduced (but not below zero) to the extent necessary so that the sum of all Severance
Payments shall not exceed the Threshold Amount. In such event, the Severance Payments shall
be reduced in the following order: (1) cash payments not subject to Section 409A of the
Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and
acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made
over time (e.g., in installments, etc.), then the payments shall be reduced in reverse
chronological order.
(b) For the purposes of this Section 5, “Threshold Amount” shall mean three times the
Executive’s “base amount” within the meaning of Section 280G(b)(3) of the Code and the regulations
promulgated thereunder less one dollar ($1.00); and “Excise Tax” shall mean the excise tax imposed
by Section 4999 of the Code, and any interest or penalties incurred by the Executive with respect
to such excise tax.
(c) The determination as to which of the alternative provisions of Section 5(a) shall apply to
the Executive shall be made an accounting firm selected by the Company (the “Accounting Firm”),
which shall provide detailed supporting calculations both to the Company and the Executive within
15 business days of the Date of Termination, if applicable, or at such earlier time as is
reasonably requested by the Company or the Executive. For purposes of determining which of the
alternative provisions of Section 5(a) shall apply, the Executive shall be deemed to pay federal
income taxes at the highest marginal rate of federal income taxation applicable to individuals for
the calendar year in which the determination is to be made, and state and local income taxes at the
highest marginal rates of individual taxation in the state and locality of the Executive’s
residence on the Date of Termination, net of the maximum reduction in federal income taxes which
could be obtained from deduction of such state and local taxes. Any determination by the
Accounting Firm shall be binding upon the Executive.
6. Section 409A.
(a) Anything in this Agreement to the contrary notwithstanding, if at the time of the
Executive’s separation from service within the meaning of Section 409A of the Code, the Company
determines that the Executive is a “specified employee” within the meaning of Section
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409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes
entitled to under this Agreement on account of the Executive’s separation from service would be
considered deferred compensation subject to the 20 percent additional tax imposed pursuant to
Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code,
such payment shall not be payable and such benefit shall not be provided until the date that is the
earlier of (A) six months and one day after the Executive’s separation from service, or (B) the
Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis,
the first payment shall include a catch-up payment covering amounts that would otherwise have been
paid during the six-month period but for the application of this provision, and the balance of the
installments shall be payable in accordance with their original schedule.
(b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement
shall be provided by the Company or incurred by the Executive during the time periods set forth in
this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in
no event shall any reimbursement be paid after the last day of the taxable year following the
taxable year in which the expense was incurred. The amount of in-kind benefits provided or
reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be
provided or the expenses eligible for reimbursement in any other taxable year. Such right to
reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
(c) To the extent that any payment or benefit described in this Agreement constitutes
“non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such
payment or benefit is payable upon the Executive’s termination of employment, then such payments or
benefits shall be payable only upon the Executive’s “separation from service.” The determination
of whether and when a separation from service has occurred shall be made in accordance with the
presumptions set forth in Treasury Regulation Section 1.409A-1(h).
(d) The parties intend that this Agreement will be administered in accordance with Section
409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its
compliance with Section 409A of the Code, the provision shall be read in such a manner so that all
payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may
be amended, as reasonably requested by either party, and as may be necessary to fully comply with
Section 409A of the Code and all related rules and regulations in order to preserve the payments
and benefits provided hereunder without additional cost to either party.
(e) The Company makes no representation or warranty and shall have no liability to the
Executive or any other person if any provisions of this Agreement are determined to constitute
deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or
the conditions of, such Section.
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7. Confidential Information, Noncompetition and Cooperation.
(a) Confidentiality. The Executive and the Company are party to a Confidentiality
Agreement dated the 14th day of August 2002 (the “Confidentiality Agreement”), which
the parties acknowledge is in full force and effect and shall not be superseded by this Agreement.
(b) Documents, Records, etc. All documents, records, data, apparatus, equipment and
other physical property, which are furnished to the Executive by the Company or are produced by the
Executive in connection with the Executive’s employment will be and remain the sole property of the
Company. The Executive will return to the Company all such materials and property as and when
requested by the Company. In any event, the Executive will return all such materials and property
immediately upon termination of the Executive’s employment for any reason. The Executive will not
retain with the Executive any such material or property or any copies thereof after such
termination.
(c) Noncompetition and Nonsolicitation. During the Executive’s employment with the
Company and for 12 months thereafter, regardless of the reason for the termination, the Executive
(i) will not, directly or indirectly, whether as owner, partner, shareholder, consultant, agent,
employee, co-venturer or otherwise, engage, participate, assist or invest in any Competing Business
(as hereinafter defined); (ii) will refrain from directly or indirectly employing, attempting to
employ, recruiting or otherwise soliciting, inducing or influencing any person to leave employment
with the Company (other than terminations of employment of subordinate employees undertaken in the
course of the Executive’s employment with the Company); and (iii) will refrain from soliciting or
encouraging any customer or supplier to terminate or otherwise modify adversely its business
relationship with the Company. The Executive understands that the restrictions set forth in this
Section 7(c) are intended to protect the Company’s interest in its Confidential Information (as
defined in the Confidentiality Agreement) and established employee, customer and supplier
relationships and goodwill, and agrees that such restrictions are reasonable and appropriate for
this purpose. For purposes of this Agreement, the term “Competing Business” shall mean a business
conducted anywhere that is competitive with any business that the Company or any of its affiliates
conducts or proposes to conduct at any time during the employment of the Executive.
Notwithstanding the foregoing, the Executive may own up to one percent (1%) of the outstanding
stock of a publicly held corporation which constitutes or is affiliated with a Competing Business.
(d) Third-Party Agreements and Rights. The Executive hereby confirms that the
Executive is not bound by the terms of any agreement with any previous employer or other party
which restricts in any way the Executive’s use or disclosure of information or the Executive’s
engagement in any business. The Executive represents to the Company that the Executive’s execution
of this Agreement, the Executive’s employment with the Company and the performance of the
Executive’s proposed duties for the Company will not violate any obligations the Executive may have
to any such previous employer or other party. In the Executive’s work for the Company, the
Executive will not disclose or make use of any information in violation of any agreements with or
rights of any such previous employer or other party, and the Executive will not bring to the
premises of the Company any copies or other
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tangible embodiments of non-public information belonging to or obtained from any such previous
employment or other party.
(e) Litigation and Regulatory Cooperation. During and after the Executive’s
employment, the Executive shall cooperate fully with the Company in the defense or prosecution of
any claims or actions now in existence or which may be brought in the future against or on behalf
of the Company which relate to events or occurrences that transpired while the Executive was
employed by the Company. The Executive’s full cooperation in connection with such claims or
actions shall include, but not be limited to, being available to meet with counsel to prepare for
discovery or trial and to act as a witness on behalf of the Company at mutually convenient times.
During and after the Executive’s employment, the Executive also shall cooperate fully with the
Company 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 Executive was employed by the Company. The Company shall reimburse the Executive for any
reasonable out-of-pocket expenses incurred in connection with the Executive’s performance of
obligations pursuant to this Section 7(e).
(f) Injunction. The Executive agrees that it would be difficult to measure any
damages caused to the Company which might result from any breach by the Executive of the promises
set forth in this Section 7, and that in any event money damages would be an inadequate remedy for
any such breach. Accordingly, subject to Section 8 of this Agreement, the Executive agrees that if
the Executive breaches, or proposes to breach, any portion of this Agreement, the Company shall be
entitled, in addition to all other remedies that it may have, to an injunction or other appropriate
equitable relief to restrain any such breach without showing or proving any actual damage to the
Company.
8. Arbitration of Disputes. Any controversy or claim arising out of or relating to
this Agreement or the breach thereof or otherwise arising out of the Executive’s employment or the
termination of that employment (including, without limitation, any claims of unlawful employment
discrimination whether based on age or otherwise) shall, to the fullest extent permitted by law, be
settled by arbitration in any forum and form agreed upon by the parties or, in the absence of such
an agreement, under the auspices of the American Arbitration Association (“AAA”) in Charleston,
South Carolina in accordance with the Employment Dispute Resolution Rules of the AAA, including,
but not limited to, the rules and procedures applicable to the selection of arbitrators. In the
event that any person or entity other than the Executive or the Company may be a party with regard
to any such controversy or claim, such controversy or claim shall be submitted to arbitration
subject to such other person or entity’s agreement. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. This Section 8 shall be
specifically enforceable. Notwithstanding the foregoing, this Section 8 shall not preclude either
party from pursuing a court action for the sole purpose of obtaining a temporary restraining order
or a preliminary injunction in circumstances in which such relief is appropriate; provided that any
other relief shall be pursued through an arbitration proceeding pursuant to this Section 8.
9. Consent to Jurisdiction. To the extent that any court action is permitted
consistent with or to enforce Section 8 of this Agreement, the parties hereby consent to the
jurisdiction of the Federal and state courts with jurisdiction over Berkeley County, South
Carolina.
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Accordingly, with respect to any such court action, the Executive (a) submits to the personal
jurisdiction of such courts; (b) consents to service of process; and (c) waives any other
requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal
jurisdiction or service of process.
10. Integration. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements between the parties
concerning such subject matter, except for the Confidentiality Agreement, the 2009 Retention Plan
and the Appreciation Rights Agreement between the Company and the Executive, which remain in full
force and effect in accordance with their terms.
11. Withholding. All payments made by the Company to the Executive under this
Agreement shall be net of any tax or other amounts required to be withheld by the Company under
applicable law.
12. Successor to the Executive. This Agreement shall inure to the benefit of and be
enforceable by the Executive’s personal representatives, executors, administrators, heirs,
distributees, devisees and legatees. In the event of the Executive’s death after termination of
employment but prior to the completion by the Company of all payments due her under this Agreement,
the Company shall continue such payments to the Executive’s beneficiary designated in writing to
the Company prior to her death (or to her) estate, if the Executive fails to make such
designation).
13. Enforceability. If any portion or provision of this Agreement (including, without
limitation, any portion or provision of any section of this Agreement) shall to any extent be
declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this
Agreement, or the application of such portion or provision in circumstances other than those as to
which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion
and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by
law.
14. Survival. The provisions of this Agreement shall survive the termination of this
Agreement and/or the termination of the Executive’s employment to the extent necessary to
effectuate the terms contained herein.
15. Waiver. No waiver of any provision hereof shall be effective unless made in
writing and signed by the waiving party. The failure of any party to require the performance of
any term or obligation of this Agreement, or the waiver by any party of any breach of this
Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a
waiver of any subsequent breach.
16. Notices. Any notices, requests, demands and other communications provided for by
this Agreement shall be sufficient if in writing and delivered in person or sent by a nationally
recognized overnight courier service or by registered or certified mail, postage prepaid, return
receipt requested, to the Executive at the last address the Executive has filed in writing with the
Company or, in the case of the Company, at its main offices, attention of the Board.
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17. Amendment. This Agreement may be amended or modified only by a written instrument
signed by the Executive and by a duly authorized representative of the Company.
18. Governing Law. This is a South Carolina contract and shall be construed under and
be governed in all respects by the laws of the South Carolina, without giving effect to the
conflict of laws principles of such state. With respect to any disputes concerning federal law,
such disputes shall be determined in accordance with the law as it would be interpreted and applied
by the United States Court of Appeals for the Fourth Circuit.
19. Counterparts. This Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be taken to be an original; but such counterparts
shall together constitute one and the same document.
20. Successor to Company. The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the
business or assets of the Company expressly to assume and agree to perform this Agreement to the
same extent that the Company would be required to perform it if no succession had taken place.
Failure of the Company to obtain an assumption of this Agreement at or prior to the effectiveness
of any succession shall be a material breach of this Agreement.
21. Gender Neutral. Wherever used herein, a pronoun in the masculine gender shall be
considered as including the feminine gender unless the context clearly indicates otherwise.
IN WITNESS WHEREOF, the parties have executed this Agreement effective on the date and year
first above written.
ARBORGEN INC. |
||||
| By: | /s/ X.X. Xxxxxxxx | |||
| Its: Chairman | ||||
| EXECUTIVE |
||||
| /s/ Xxxxxxx X. Xxxxx | ||||
| Xxxxxxx X. Xxxxx | ||||
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