PRIVILEGED AND CONFIDENTIAL
EMPLOYMENT AGREEMENT
AGREEMENT, made May 30, 2003, by and between Seminis Merger Corp., a
Delaware corporation ("Seminis Merger Corp.") and Xxxxxxxx Xxxxxxx (the
"Executive").
RECITALS
WHEREAS Seminis, Inc. (the "Company") intends to enter into an Agreement
and Plan of Merger dated on May 30, 2003 by and among the Company, Seminis
Acquisition LLC and Seminis Merger Corp. (the "Merger Agreement") pursuant to
which, at the Effective Time (as defined in the Merger Agreement), the Company
will be the surviving corporation in the Merger (as defined in the Merger
Agreement); and
WHEREAS in order to induce Executive to serve as the Executive Senior Vice
President and Chief Financial Officer of the Company following such Merger,
Seminis Merger Corp. desires to provide Executive with compensation and other
benefits on the terms and conditions set forth in this Agreement; and
WHEREAS, Executive is willing to accept such employment and perform
services for the Company on the terms and conditions hereinafter set forth:
NOW, THEREFORE, it is hereby agreed by and between the parties as follows:
1. Employment.
1.1 With the exception of Section 3.5(f) of this Agreement, which shall
become effective as of the date hereof, this Agreement shall become effective as
of the Closing Date (as defined in the Merger Agreement) (the "Effective Date")
and, except as otherwise expressly
provided herein, shall be of no force or effect prior to such date, or in the
event the Merger Agreement is terminated prior to the consummation of the
Merger.
1.2 Subject to the terms and conditions of this Agreement, Seminis
Merger Corp. agrees to employ Executive during the Term (as defined below) as
Executive Senior Vice President and Chief Financial Officer of the Company. In
his capacity as Executive Senior Vice President and Chief Financial Officer of
the Company, Executive shall report to the Company's Chief Executive Officer
(the "CEO") and shall have the customary powers, responsibilities and
authorities of Chief Financial Officers of corporations of the size, type and
nature of the Company, as it exists from time to time.
1.3 Subject to the terms and conditions of this Agreement, Executive
hereby accepts employment as the Executive Senior Vice President and Chief
Financial Officer of the Company, commencing on the Effective Date.
1.4 Executive shall perform his duties under this Agreement with
reasonable diligence and faithfulness, and shall devote his full business time
(excluding any periods of vacation or sick leave) and attention to such duties.
Nothing in this Agreement shall preclude Executive from engaging in charitable
and community affairs, from managing any passive investment made by him in
publicly traded equity securities or other property or from continuing to serve
as a member of the board of directors or as a trustee of any other corporation,
association or entity with respect to which Executive serves as a director or
trustee as of the date of this Agreement, or, with the prior written consent of
the Committee (as defined in Section 3.2 hereof), such consent not to be
unreasonably withheld, serving as a member of a board of directors or as a
trustee of any other corporation, association or entity, provided, that these
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activities do not interfere with the performance of Executive's duties and
responsibilities hereunder or violate the provisions of Section 12 of this
Agreement.
1.5 The Executive agrees to serve, without additional compensation, as
an officer and director for each of the Company's 20% or more owned
subsidiaries, partnerships, joint ventures, and limited liability companies
(collectively, such entities, the "Affiliated Group"), provided, that such
service does not materially interfere with the Executive's performance of his
duties and responsibilities as Executive Vice President and Chief Financial
Officer of the Company.
1.6 Executive's principal location of employment shall be at the
Company's offices located in Oxnard, California, provided, that Executive may be
required under reasonable business circumstances to travel outside of such
location in connection with performing his duties under this Agreement.
2. Term of Employment. Executive's term of employment under this
Agreement shall commence on the Effective Date and, subject to the terms hereof,
shall terminate on the earlier of (i) the third anniversary of the Effective
Date (the "Termination Date") or (ii) the termination of Executive's employment
pursuant to this Agreement (the period from the Effective Date until the
termination of Executive's employment under this Agreement shall be the "Term").
This Agreement shall be renewed automatically for succeeding terms of one (1)
year following the Termination Date (in which case both the Termination Date and
the Term shall be extended one year on each renewal), unless either party gives
written notice to the other at least 120 days prior to the applicable
Termination Date of its intention not to renew.
3. Compensation and Equity Awards.
3.1 Salary. The Company shall pay Executive an initial annual base
salary of $636,000. The Base Salary shall be reviewed by the Company no less
frequently than annually
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in a manner consistent with similarly situated executives of the Company and may
be increased but not decreased. For all purposes under this Agreement, the term
"Base Salary" shall refer to Base Salary as in effect from time to time. Base
Salary shall be payable in accordance with the ordinary payroll practices of the
Company.
3.2 Annual Bonus. During the Term, Executive shall be eligible to
receive an annual bonus (the "Bonus") with a target Bonus set at 65% of Base
Salary (the "Target Bonus") and a maximum Bonus of 81.25% of Base Salary. Such
Bonus shall be based upon the satisfaction of performance objectives and shall
be determined on a weighted basis comprised of the following criteria:
(i) Targets (as defined in the Stockholders' Agreement, of even date
herewith, by and among Seminis Merger Corp. and the Persons listed
on the signature pages thereto (the "Stockholders' Agreement")) -
40% (the "Target Component");
(ii) Executive performance goals established annually by the Compensation
Committee (the "Committee") of the Board of Directors of the Company
(the "Board") - 20% (the "Individual Component");
(iii) Milestones based upon Company net sales as set forth in the Approved
Annual Business Plan (as defined in the Stockholders' Agreement) -
20% (the "Sales Component"); and
(iv) Milestones based upon Company net working capital as set forth in
the Approved Annual Business Plan - 20% (the "Net Working Capital
Component")
(items (i) through (iv) collectively, the "Performance Objectives," and each,
separately, a "Performance Objective"). During any fiscal year in which an
Approved Annual Business Plan has been adopted in accordance with the
Stockholders' Agreement, the Bonus shall be equal to
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the sum of: (A) (Target Bonus)(.4)(the Applicable Percentage for the
Target Component), PLUS (B) (Target Bonus)(.2)(the Applicable
Percentage for the Individual Component), PLUS (C) (Target
Bonus)(.2)(the Applicable Percentage for the Sales Component), PLUS
(D) (Target Bonus)(.2)(the Applicable Percentage for the Net Working
Capital Component), where the Target Bonus is expressed in dollars
and the Applicable Percentage with respect to any given Performance
Objective is determined in accordance with the performance matrix
below. During any fiscal year in which the Approved Annual Business
Plan for such fiscal year is not approved and adopted by the Board
in accordance with the Stockholders' Agreement at any point prior to
or during such fiscal year, the Bonus shall be equal to the sum of
(A) (Target Bonus) (.5) (the Applicable Percentage for the Target
Component) PLUS (B) (Target Bonus) (.5) (the Applicable Percentage
for the Individual Component), where the Target Bonus is expressed
in dollars and the Applicable Percentage with respect to any given
Performance Objective is determined in accordance with the
performance matrix below:
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PERFORMANCE MATRIX
APPLICABLE
IF PERFORMANCE IS: PERCENTAGE:
LESS THAN 90%
of Performance Objective 0%
90%
of Performance Objective 50%
95%
of Performance Objective 75%
100%
of Performance Objective 100%
125% of Performance
Objective OR GREATER 125%
In the event actual performance for any fiscal year falls between any threshold
listed in the chart above, (e.g. 91% of Performance Objective), then the
Applicable Percentage shall be adjusted accordingly using a straight line method
of interpolation (e.g. if actual performance is at 91% of Performance Objective,
then the Applicable Percentage shall be 55%; if actual performance is 92% of
Performance Objective, then the Applicable Percentage shall be 60%, etc.). The
bonus shall be applicable for fiscal years of the Company beginning after the
date hereof, and Executive's annual bonus for the Company's fiscal year ending
September 30, 2003, shall be based on the Company's bonus plan in effect as of
the date hereof, as set forth on Schedule 6.16(b) to the Merger Agreement.
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3.3 Compensation Plans and Programs. Executive shall be eligible to
participate in any compensation plans or programs maintained by the Company and
generally made available to other senior executives of the Company, on terms
comparable to those applicable to such other senior executives, provided, that
such participation shall not cause the duplication of any compensation or
benefits provided to Executive under this Agreement.
3.4 Restricted Stock Units. (a) Executive shall be granted on the
Effective Date 420,882 restricted stock units of the Company (the "Restricted
Stock Units") that shall vest (if at all) as provided below with respect to
fiscal years in which an Approved Annual Business Plan has been adopted in
accordance with the Stockholders' Agreement, so long as Executive remains
employed by the Company through the applicable vesting dates:
FISCAL YEAR ENDING IN 2004:
N = (42,088.2)(.4)(Applicable Percentage for the Target Component) +
(42,088.2)(.2)(Applicable Percentage for the Individual Component) +
(42,088.2)(.2)(Applicable Percentage for the Sales Component) +
(42,088.2)(.2)(Applicable Percentage for the Net Working Capital Component)
FISCAL YEAR ENDING IN 2005:
N = (42,088.2)(.4)(Applicable Percentage for the Target Component) + (42,088.2)
(.2)(Applicable Percentage for the Individual Component) +
(42,088.2)(.2)(Applicable Percentage for the Sales Component) +
(42,088.2)(.2)(Applicable Percentage for the Net Working Capital Component)
FISCAL YEAR ENDING 2006:
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N = (84,176.4)(.4)(Applicable Percentage for the Target Component) +
(84,176.4)(.2)(Applicable Percentage for the Individual Component) +
(84,176.4)(.2)(Applicable Percentage for the Sales Component) +
(84,176.4)(.2)(Applicable Percentage for the Net Working Capital Component)
FISCAL YEAR ENDING 2007:
N = (126,264.6)(.4)(Applicable Percentage for the Target Component) +
(126,264.6) (.2)(Applicable Percentage for the Individual Component) +
(126,264.6)(.2)(Applicable Percentage for the Sales Component) +
(126,264.6)(.2)(Applicable Percentage for the Net Working Capital Component)
FISCAL YEAR ENDING 2008:
N = (126,264.6)(.4)(Applicable Percentage for the Target Component) + (126,264.6
(.2)(Applicable Percentage for the Individual Component) +
(126,264.6)(.2)(Applicable Percentage for the Sales Component) +
(126,264.6)(.2)(Applicable Percentage for the Net Working Capital Component)
in each case, where N = the number of Restricted Stock Units that shall be
eligible to vest for any given period and the Applicable Percentage with respect
to any given Performance Objective is determined in accordance with the
performance matrix below.
Notwithstanding the foregoing, during any fiscal year in which the Approved
Annual Business Plan for such fiscal year is not approved and adopted by the
Board in accordance with the Stockholders' Agreement at any point prior to or
during such fiscal year, the vesting of
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Restricted Stock Units shall be equal to the sum of (A) (N)(.5) (the Applicable
Percentage for the Target Component) PLUS (B) (N)(.5) (the Applicable Percentage
for the Individual Component), where N = the number of Restricted Stock Units
that shall be eligible to vest for any given period (in the same number as set
forth above for the applicable fiscal year) and the Applicable Percentage with
respect to any given Performance Objective is determined in accordance with the
performance matrix below.
Performance Matrix
APPLICABLE
IF PERFORMANCE IS: PERCENTAGE:
Less than 90% of 0%
Performance Objective
90% of Performance 50%
95% of Performance 75%
Objective
100% of Performance 100%
Objective or greater
In the event actual performance for any fiscal year falls between any threshold
listed in the chart above, (e.g. 91% of Performance Objective), then the
Applicable Percentage shall be adjusted accordingly using a straight line method
of interpolation (e.g., if actual performance is at 91% of Performance
Objective, then the Applicable Percentage shall be 55%; if actual performance is
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92% of Performance Objective, then the Applicable Percentage shall be 60%,
etc.). To the extent conditions to vesting in any particular year are not met in
such year, and some or all of the Restricted Stock Units do not vest in such
year, such Restricted Stock Units shall be permanently forfeited.
Notwithstanding the foregoing, in the event that prior to the fifth anniversary
of the Effective Date, FPSH (as defined in the Stockholders' Agreement) achieves
the IRR Hurdle (as defined in the Stockholders' Agreement) after giving effect
to the vesting of all rights and options to purchase or receive shares of New
Company Common Stock and the vesting of any Restricted Stock Units, the
Restricted Stock Units (excepting any Restricted Stock Units that shall have
been forfeited pursuant to the immediately preceding sentence) shall become
vested as of such date if Executive has remained employed with the Company as of
such date, provided that such vesting shall occur only to the extent that FPSH
achieves the IRR Hurdle, and any reduced vesting to achieve the IRR Hurdle shall
occur on a pro rata basis with other employees of the Company that have
Restricted Stock Units. The Restricted Stock Units shall not constitute Rollover
Equity for purposes of the put right provided for in Section 3.5 herein.
(b) The Restricted Stock Units are subject to the following terms
and conditions:
(i) Executive will not be entitled to vote the underlying shares
related to the Restricted Stock Units unless and until such
shares are actually delivered to Executive.
(ii) The Restricted Stock Units shall be equitably adjusted as
determined by the Compensation Committee in the event of an
extraordinary dividend or other corporate transaction if
necessary to preserve the value of the Restricted Stock Units.
Any property or dividends received upon such an adjustment
will be subject to the same restrictions as the Restricted
Stock
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Units to which they relate.
(iii) The Restricted Stock Units and the shares of New Company
Common Stock received with respect to Restricted Stock Units
will be subject to the terms of the Stockholders' Agreement.
(iv) Vested Restricted Stock Units shall be converted into shares
of New Company Common Stock upon the first to occur of (A) a
Change of Control of the Company (as defined in the
Stockholders' Agreement), (B) Executive's termination of
employment, (C) the termination of the Stockholders' Agreement
and (D) vesting of Restricted Stock Units, pursuant to
Executive's initial election made as of the date of grant (or
upon other elections to be provided by the Committee) to
receive shares upon vesting.
(v) Executive shall be eligible to make a tag-along election (as
set forth in Section 2.6.2 of the Stockholders' Agreement)
with respect to the vested Restricted Stock Units on the same
terms as other Stockholders (as defined in the Stockholders'
Agreement) in accordance with the terms of the Stockholders'
Agreement; provided, that such tag-along election shall only
be treated as being made if holders of a majority of the
outstanding Restricted Stock Units elect to make the tag-along
election and then all Restricted Stock Units will be treated
as subject to the election. If holders of a majority of the
outstanding Restricted Stock Units do not elect to make a
tag-along election, then none of the Restricted Stock Units
will be permitted to make the tag-along election.
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(vi) The vested Restricted Stock Units and any Restricted Stock
Units that would vest as a result of a completed Required
Third Party Sale or a completed FPSH Drag Sale (as applicable)
(as such terms are defined in the Stockholders' Agreement)
shall be subject to the TPS Drag-Along Right (as defined in
the Stockholders' Agreement) and the FPSH Drag Sale,
respectively.
(vii) Transfers of vested Restricted Stock Units may be made to
Executive's family members on the same terms as other Company
equity as set forth in the Stockholders Agreement, but shall
otherwise not be transferable other than as provided therein.
(c) Executive represents and warrants that he (i) has such knowledge
and experience in business and financial matters with respect to investments in
securities to enable him to understand and evaluate the risks of the investment
contemplated hereby and form an investment decision with respect thereto and is
able to bear the risk of such investment for an indefinite period and to afford
a complete loss thereof, (ii) is an "accredited investor" as defined in Rule 501
of Regulation D under the Securities Act of 1933, as amended, (iii) has had the
opportunity to (A) ask such questions as Executive has deemed necessary of, and
to receive answers from, representatives of the Company concerning the terms of
the transactions contemplated hereby (including the provisions of Section 3.4 of
this Agreement) and the merits and risks of investing in securities of the
Company and (B) to obtain such additional information which Company possesses or
can acquire without unreasonable effort or expense and (iv) is acquiring equity
interests in the Company for his own account and not with a view to or for sale
in connection with any distribution of securities.
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3.5 Rollover Equity. (a) Executive shall roll over all of his shares of
Company Common Stock (as defined in the Merger Agreement) and all of his Options
(as defined in the Merger Agreement) into shares of New Company Common Stock (as
defined in the Merger Agreement) and Retained Options (such rolled New Company
Common Stock and Retained Options, the "Rollover Equity"), and such Retained
Options shall be 100% vested and exercisable as of the Closing Date and shall
have substantially the same terms and conditions as the Options. Beginning in
2004, Executive shall be permitted to "put" the shares of New Company Common
Stock and Retained Options that comprise the Rollover Equity to the Company each
year if (i) 100% of each Performance Objective for the immediately preceding
fiscal year has been satisfied and (ii) the agreements governing the
indebtedness of the Company permit the repurchase of such Rollover Equity. The
put right contemplated hereby shall be applicable to the Rollover Equity only.
(b) Executive shall give notice of his intention to exercise the put
right described herein during the three (3) months prior to September 30 of a
particular year. If the conditions to such exercise and payment have been met,
the Company shall make payment in respect of the Rollover Equity as soon as
practicable following the end of the applicable calendar year, but in no event
later than January 31 of the following year. The per-share put price shall be
based upon the fair market value of the New Company Common Stock as reasonably
determined by the Board in light of all circumstances. In the case of Retained
Options, the per-share put price shall be net of any applicable exercise price
and withholding. The Board may, in its discretion, assign the rights and
obligations of the Company under this Section 3.5 to any other person, but no
such assignment shall relieve the Company of its obligations hereunder to the
extent not satisfied by such assignee.
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(c) Subject to the following sentence, in any given year, Executive
may exercise the put right provided for herein with respect to no less than 25%
of the aggregate number of shares of New Company Common Stock and/or Retained
Options owned by Executive on the Effective Date; provided, however, that if
Executive owns fewer than 25% of the aggregate number of shares of New Company
Common Stock and Retained Options owned by Executive on the Effective Date,
Executive may exercise the put right provided for herein with respect to all of
such shares of New Company Common Stock and Options. In the event that the
condition set forth in clause (i) of the second sentence of Section 3.5(a) has
been met and the agreements governing the indebtedness of the Company permit the
repurchase of some but not all of the aggregate amount of rollover equity
(including the Rollover Equity) with respect to which executives (including
Executive) have exercised put rights, the amount of rollover equity that the
Company shall purchase shall be allocated among the executives (including
Executive) exercising such put right on an unweighted pro rata basis.
(d) If Executive's employment terminates for any reason, then the
put right provided herein shall terminate; provided that the Company shall be
obligated to satisfy any unfulfilled obligations with respect to any put right
exercised prior to such termination; and provided further that Executive's
Rollover Equity shall thereafter be subject to the post-termination put and call
provisions contained in Article IV of the Stockholders' Agreement. The put right
provided for herein shall terminate upon the occurrence of an IPO (as defined in
the Stockholders' Agreement).
(e) Notwithstanding anything to the contrary contained in this
Agreement, the put right provided for herein shall be subject to all other
provisions in the Stockholders' Agreement. Without limiting the foregoing,
Executive acknowledges that the Rollover Equity shall be
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subject to the TPS Drag-Along Right and the FPSH Drag Sale, each of which shall
supersede the put right provided for herein.
(f) Notwithstanding anything to the contrary contained in this
Agreement, effective as of the date hereof, Executive waives any right to be
cashed out of all of his shares of Company Common Stock and Options under the
Merger Agreement or to exercise any of his Options prior to the Effective Date.
4. Employee Benefits.
4.1 Employee Benefit Programs, Plans and Practices. During the Term,
Executive shall be entitled to participate in welfare, health and life insurance
and pension benefit programs as may be in effect from time to time for similarly
situated executives of the Company generally. Executive shall not be entitled to
participate in any severance plans provided to Company employees and hereby
waives any rights to receive severance benefits other than as provided in this
Agreement.
4.2 Vacation; Fringe Benefits; Perquisites. Executive shall be entitled
to no less than twenty (20) business days paid vacation in each calendar year.
Vacation days will accrue up to a maximum of forty (40) days, at which time,
further accruals will cease until the accrued vacation day balance falls below
40 days. Executive shall receive an after-tax annual vacation allowance of
$7,700, which shall be payable in two equal installments, the first of which
shall be paid during January of each year and the second of which during July.
In addition, Executive shall be entitled to the perquisites and other fringe
benefits generally made available to senior executives of the Company,
commensurate with his position with the Company. In addition, Executive shall be
entitled to receive benefits reasonably comparable to those provided to
Executive as of the date of this Agreement with respect to the following
matters:
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(a) family membership to a sport or social club of Executive's
choice;
(b) use of two (2) Company automobiles appropriate for Executive's
position, including the costs of necessary maintenance (although
Executive may incur taxable income as a result of his personal use
of such vehicles);
(c) private school tuition for Executive's dependant children in the
school(s) of his choice (up to, but not including university
education);
(d) in the event Executive is asked by the Company to relocate,
relocation reimbursement in accordance with the Company's relocation
policy;
(e) an annual expatriate allowance of 10% of Base Salary payable in
two equal installments (in the same manner described above with
respect to the vacation allowance, provided, that such allowance
shall not be net of taxes);
(f) all fees and expenses incurred in connection with satisfying
applicable government working requirements, including visas;
(g) a housing allowance of $36,000 per year net of taxes; and
(h) bi-annual medical checkups for Executive and his spouse.
5. Expenses. During the Term, Executive shall be entitled to receive
prompt reimbursement in accordance with the Company's policies for out-of-pocket
business expenses reasonably incurred in carrying out his duties and
responsibilities under this Agreement, including, without limitation, reasonable
expenses for travel and similar items related to such duties and
responsibilities.
6. Termination of Employment.
6.1 Termination Not for Cause or for Good Reason. (a) If, prior to the
Termination Date, during the Term, Executive's employment is terminated (A) by
the Company other than for Cause (as defined in Section 6.2(b) hereof), (B) as a
result of Executive's death or as a result of Executive's Permanent Disability
(as defined in Section 6.1(d) hereof), or (C) by Executive for Good Reason (as
defined in Section 6.1(c) hereof), Executive shall receive:
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(i) such payments, if any, to which Executive is entitled under any
applicable plans or programs, including but not limited to those
referred to in Sections 3.3 and 4.1 hereof, in accordance with the
terms of such plans or programs;
(ii) a cash lump sum payment in respect of accrued but unused
vacation days and Base Salary and, if any such termination of
employment occurs after the end of a Company fiscal year and prior
to the payment of Bonuses for such fiscal year, any Bonus payments
earned by Executive for such fiscal year but not yet paid;
(iii) continued coverage under any employee medical plans or
programs provided to Executive and his family members pursuant to
Section 4.1 hereof until the earlier of the third anniversary of
Executive's termination of employment or the date on which Executive
becomes entitled to receive medical coverage under another
employer's medical benefit program, provided, that Executive shall
continue to be required to pay any applicable premiums of a
participating employee in such plans and programs;
(iv) a cash lump sum payment equal to three (3) times the sum of the
(I) Base Salary (as of immediately prior to the Executive's date of
termination of employment, but excluding any decrease in Base Salary
causing Executive to have Good Reason) plus (II) the average annual
bonus paid or payable to Executive with respect to the two (2)
fiscal years immediately prior to the Executive's date of
termination of employment (provided, however, that if the
Executive's date of termination of employment occurs at any time
during the 2002-2003 fiscal year, then the "average annual bonus"
shall be deemed to be the, bonus paid or payable with respect to the
2001-2002 fiscal year and if Executives date of termination occurs
prior to a date upon which a determination of an annual bonus amount
has been made by the Company for a prior fiscal year for Executive
then the "average annual bonus" shall be deemed to be the Target
Bonus), less any applicable insurance benefits, provided, that any
reduction for disability benefits shall be with respect to benefits
received by Executive during the three-year period following
Executive's date of termination of employment.
(b) All payments payable by the Company to Executive pursuant to
this Section 6.1 shall be paid within 30 days after the termination of
Executive's employment by check payable to the order of Executive or by wire
transfer to an account specified by Executive and shall be subject to Executive
entering into and not revoking a release substantially in the form set forth as
Exhibit A hereto.
(c) For purposes of this Agreement, "Good Reason" shall mean that
any of the events set forth in clauses (i) through (v) below shall occur without
the written consent of
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Executive, provided, that (x) Executive shall provide the Company with written
notice thereof within one hundred and twenty (120) days after Executive has
knowledge of the occurrence of any of the events or circumstances set forth in
clauses (i) through (v) below, which notice shall specifically identify the
event or circumstance that Executive believes constitutes Good Reason, (y) the
Company fails to correct the circumstance or event so identified within twenty
(20) days after the date of delivery of the notice referred to in clause (x)
above, and (z) Executive resigns his employment for Good Reason within ninety
(90) days after the date of delivery of the notice referred to in (x) above:
(i) a reduction in Executive's Base Salary;
(ii) Executive's duties, titles, responsibilities or authority
(including offices and reporting relationships) are materially
diminished in comparison to the duties, titles and responsibilities
or authority set forth in this Agreement, or Executive is assigned
duties materially and adversely inconsistent with his position;
(iii) a material reduction in fringe benefits, perquisites or other
allowances provided to Executive pursuant to Section 4.2, other than
(except for perquisites specifically set forth in this Agreement or
the Schedules hereto) as a result of a change applicable to
employees of the Company generally, or any material failure to
provide such benefits to Executive;
(iv) the failure of the Company to obtain a satisfactory agreement
from any successor to assume and agree to perform the Agreement, as
contemplated in Section 10 herein; or
(v) any requirement that Executive relocate to an office more than
25 miles from his office as of the Effective Date.
(d) For purposes of this Agreement, "Permanent Disability" shall
mean Executive's absence from full time performance of duties due to physical or
mental illness for six (6) consecutive months, that is reasonably determined to
be total and permanent by a
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physician selected by the Company or its insurers and reasonably acceptable to
Executive or his legal representative.
(e) For purposes of this Agreement, Change of Control shall have the
meaning ascribed to such term in the Stockholders' Agreement.
6.2 Discharge for Cause; Voluntary Termination by Executive. (a) The
Company shall have the right to terminate the employment of Executive for Cause
by action of the Committee. In the event that Executive's employment is
terminated, prior to the Termination Date, (i) by the Company for Cause, as
hereinafter defined, or (ii) by Executive other than (A) for Good Reason or (B)
as a result of the Executive's death or Permanent Disability or (iii) upon a
failure to renew this Agreement pursuant to Section 2, Executive shall be
entitled to receive a lump sum cash payment in respect of any earned but unpaid
Base Salary and in respect of any accrued vacation days. In addition, Executive
shall be entitled to such payments and benefits, if any, under any applicable
plans or programs, including, but not limited to, those referred to in Sections
3.3 and 4.1 hereof, to which he is entitled pursuant to the terms of such plans
or programs.
(b) As used herein, the term "Cause" shall mean (i) Executive's
conviction of, or plea of guilty or nolo contendere to, a felony (or a
comparable level of crime in another jurisdiction); provided, however, that
after indictment for a felony, the Company may suspend Executive from the
rendition of services, but without limiting or modifying in any other way, the
Company's obligations to Executive under this Agreement, (ii) continued and
repeated refusal by Executive to perform his duties hereunder after fifteen (15)
days written notice of any such refusal to perform such duties or direction was
given to Executive, (iii) commission by Executive of fraud against, or
misappropriation of significant property belonging to, the Company, unless
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such action is neither willful nor injurious to the Company or any of its
Subsidiaries, or other willful misconduct materially injurious to the Company or
any of its Subsidiaries or (iv) during any period in which FPSH and its
affiliates are the beneficial owners of 20% or more of the Company's stock in
the aggregate, a material breach by Executive of the provisions of the Corporate
Policies and Procedures (as defined in the Stockholders' Agreement) or Section
12 of this Agreement, unless such breach is neither willful nor materially
injurious to the Company or any of its Subsidiaries. Termination of Executive
pursuant to this Section 6.2(b) shall be made by delivery to Executive of a copy
of a resolution duly adopted by the affirmative vote of not less than a majority
of the then members of the Committee at a meeting of the Committee called and
held for the purpose (after 30 days prior written notice to Executive and
reasonable opportunity for Executive and his counsel to be heard before the
Committee prior to such vote), finding that in the reasonable judgment of the
Committee, Executive was guilty of conduct set forth in any of clauses (i)
through (iv) above and specifying the particulars thereof.
6.3 Resignation from all Positions. Notwithstanding any other provision
of this Agreement, upon the termination of the Executive's employment for any
reason, unless otherwise requested by the Board, the Executive shall immediately
resign from all positions that he holds or has ever held with the Company and
any other member of the Affiliated Group (and with any other entities with
respect to which the Company has requested the Executive to perform services),
including, without limitation, the Board and all boards of directors of any
member of the Affiliated Group. The Executive hereby agrees to execute any and
all documentation to effectuate such resignations upon request by the Company,
but he shall be treated for all purposes as having so resigned upon termination
of his employment, regardless of when or whether he executes any such
documentation.
20
6.4 Breach of Section 12. Notwithstanding anything to the contrary in
this Agreement, in the event of a breach by Executive of the provisions of
Section 12 of this Agreement following Executive's termination of employment, or
a material breach by Executive of the provisions of Section 12 of this Agreement
during Executive's employment which the Committee determines would have been
Cause to terminate Executive's employment and that is discovered by the Company
within six (6) months following Executive's termination of employment, Executive
shall be entitled to no further payments under this Section 6, and shall repay
to the Company any payments previously made under this Section 6. Any amounts
repaid by Executive under this Section 6.4 will reduce (on a dollar for dollar
basis) any damages payable by Executive as a result of a breach of the terms of
Section 12.
7. Mitigation of Damages. Executive shall not be required to mitigate
damages or the amount of any payment provided for under this Agreement by
seeking other employment or otherwise after the termination of his employment
hereunder, and any amounts earned by Executive, whether from self-employment, as
a common-law employee or otherwise, shall not reduce the amount of any payments
otherwise payable to him pursuant to this Agreement.
8. Notices. All notices or communications hereunder shall be in
writing, addressed as follows:
To the Company:
21
Seminis, Inc.
0000 Xxxxxx xxx Xxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Attn: General Counsel
with a copy to:
Fox Xxxxx & Company, LLC
000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: W. Xxxxxx Xxxxx, III
To Seminis Merger Corp.:
Seminis Merger Corp.
c/o Fox Xxxxx & Company, LLC
000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: W. Xxxxxx Xxxxx, III
To Executive:
Xxxxxxxx Xxxxxxx
At the address most recently on file with the Company
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx, LLP
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx Xxxxxx
Any such notice or communication shall be delivered by hand or by courier or
sent certified or registered mail, return receipt requested, postage prepaid,
addressed as above (or to such other address as such party may designate in a
notice duly delivered as described above), and the third business day after the
actual date of mailing shall constitute the time at which notice was given.
9. Separability; Legal Fees. If any provision of this Agreement shall
be declared to be invalid or unenforceable, in whole or in part, such invalidity
or unenforceability shall not
22
affect the remaining provisions hereof which shall remain in full force and
effect. Each party shall bear the costs of any legal fees and other fees and
expenses which may be incurred in respect of enforcing its respective rights
under this Agreement.
10. Successors and Assigns. Except as otherwise provided herein, this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
Seminis Merger Corp. and Executive and their respective heirs, legal
representatives, successors and assigns. Executive may not assign this
Agreement, other than, with respect to payments in the event of Executive's
death, to Executive's estate or beneficiaries. Seminis Merger Corp. may assign
this Agreement to any of its affiliates in the event of any restructuring or
reorganization of Seminis Merger Corp. or to a successor to all or substantially
all of Seminis Merger Corp.'s assets, and the benefits of this Agreement shall
inure to such entity and the obligations of this Agreement shall be binding on
such entity; provided, that, if Seminis Merger Corp. assigns this Agreement to
an affiliate which is not a successor to all or substantially all of its assets,
Seminis Merger Corp. shall continue to guarantee the payments and benefits
hereunder. If Seminis Merger Corp. shall be merged into or consolidated with
another entity, the provisions of this Agreement shall be binding upon and inure
to the benefit of the entity surviving such merger or resulting from such
consolidation and Seminis Merger Corp. shall require any such successor, by
agreement in form and substance satisfactory to Executive, to expressly assume
and agree to perform this Agreement in the same manner and to the same extent
that Seminis Merger Corp. would be required to perform it if no such succession
had taken place. For avoidance of doubt, upon the Effective Date the Company
will be the successor to Seminis Merger Corp. and Executive hereby acknowledges
that the provisions of Section 3.3 of the Merger Agreement shall satisfy the
obligations of Seminis Merger Corp. under the immediately preceding sentence.
The
23
provisions of this Section 10 shall continue to apply to each subsequent
employer of Executive in the event of any subsequent merger or consolidation of
such subsequent employer. As used in this Agreement, the term "affiliates" shall
include any entity controlled by, controlling, or under common control with
Seminis Merger Corp. or the Company, as applicable.
11. Amendment. This Agreement may only be amended by written agreement
of the parties hereto.
12. Nondisclosure of Confidential Information; Work Product;
Non-Disparagement; Non-Competition; Non-Solicitation.
12.1 Confidential Information of the Company and Its Affiliates. All
Confidential Information relating to or obtained from the Company or its
affiliates shall be held in the strictest confidence by Executive. Executive
shall not, directly or indirectly, disclose, use, publish, release, transfer or
otherwise make available Confidential Information of, or obtained from the
Company or any of its affiliates in any form to, or for the use or benefit of,
any person or entity without the Company's prior written consent, except (i)
while employed by the Company, in the business of and/or for the benefit of the
Company or (ii) when required to do so by a court of competent jurisdiction, by
any governmental agency having supervisory authority over the business of the
Company, or by any administrative body or legislative body (including a
committee thereof) with jurisdiction to order Executive to divulge, disclose or
make accessible such information. For purposes of this Section 12.1,
"Confidential Information" shall mean all information and documentation of the
Company or its affiliates, whether disclosed to or accessed by Executive in
connection with his employment with the Company or the Affiliated Group that is
not otherwise available to the public (other than by Executive's breach of the
terms hereof), including all (i) data and information of the Company or its
affiliates or the customers, suppliers,
24
contractors or other third parties doing business with any of the Company or its
affiliates, including business plans, memoranda, reports, drawings, research
results, research plans, inventions (patentable or otherwise), trade secrets and
research products and (ii) Work Product (as defined below) created by Executive.
12.2 Executive hereby acknowledge that any ideas, concepts, designs,
discoveries, techniques, research results, inventions, methodologies, know-how,
improvements, discoveries, processes or products, whether or not patentable,
that Executive conceives of or reduces to practice during the term of his/her
employment with the Company or the Affiliated Group and which are in connection
with Executive's employment or related to the nature of Executive's employment
(collectively, the "Work Product"), shall be, or be deemed to be, "work for
hire" and owned by the Company. Furthermore, the Company shall have all right,
title and interest, including worldwide ownership of copyright and patent, in
and to the Work Product and all copies made from them. To the extent (a) any of
the Work Product is not deemed a "work for hire" by operation of law and (b)
permissible under applicable law, Executive hereby irrevocably assigns,
transfers and conveys to the Company all of his/her right, title and interest in
and to such Work Product, including all rights of patent, copyright, trade
secret or other intellectual property or proprietary rights in such materials.
Executive acknowledges that the Company and the successors and permitted assigns
of the Company shall have the right to obtain and hold in their own name any
intellectual property rights in and to such Work Product.
12.3 During the Term and for a period of 24 months from the date of the
termination of Executive's employment for any reason (the "Restricted Period"),
Executive shall not compete with the Company or the Affiliated Group, by
directly or indirectly engaging in any business or activity, whether as an
employee, consultant, partner, principal, agent, representative or
25
stockholder or in any other individual, corporate or representative capacity, or
render any services or provide any advice or substantial assistance to any
business, person or entity, if such business, person or entity, directly or
indirectly, competes (or, to Executive's knowledge after due inquiry, intends to
compete or is preparing to compete during the Restricted Period) with the
Business of the Company or the Affiliated Group in any material manner. It is
the intention of the parties that the potential restrictions on Executive's
activities imposed by this paragraph be and are reasonable in duration, scope
and geography and in all other respects. For purposes of this Section 12,
"Business" shall mean the business of marketing, developing, producing and
researching new fruit or vegetable seeds and fruit or vegetable plants, or any
other material businesses entered into by the Company or the Affiliated Group
during the Term, or with respect to which the Company or the Affiliated Group
has taken material steps to enter into as of the termination of Executive's
employment. During the Restricted Period, Executive shall be available to
consult with the Company on Company-related matters within his knowledge in
person or by phone, as determined by Executive, for a period of no more than
five (5) days per calendar quarter, subject to not interfering with Executive's
work schedule; provided, however, that for each full or partial day during which
Executive provides such services (other than with respect to de minimis services
of less than two (2) hours on a given day), the Company shall pay to Executive a
sum of $500 (such limitations and payments shall not apply to any lawsuits in
which Executive is a named party). In addition, the Company shall promptly
reimburse Executive for his reasonable expenses, if any, in providing such
services.
12.4 Except as is required or appropriate in the furtherance of the
business of the Company or the Affiliated Group, Executive shall not, during the
Restricted Period, either alone or in concert with others, directly or
indirectly, (1) solicit, entice, induce or encourage (a) any
26
customer of the Company or the Affiliated Group (including, during the Term, the
Company's affiliates) to discontinue using the services or purchasing the
products of the Company or the Affiliated Group (including, during the Term, the
Company's affiliates), (b) any customer to refer prospective customers or
business to any competitor of the Company or the Affiliated Group or (c) any
person or entity that is part of any existing or proposed arrangement or has any
other affiliation with the Company or the Affiliated Group (including, during
the Term, the Company's affiliates) to discontinue such relationship or
affiliation with the Company or its affiliates or (2) recruit or hire, or assist
others in recruiting or hiring, or otherwise solicit for employment, any
consultants or employees of the Company or its affiliates, or former consultants
or employees of the Company or its affiliates within six (6) months following
their termination of employment.
12.5 Upon request by the Company at any time during Executive's
employment or upon termination of Executive's employment with the Company for
any reason, Executive shall promptly (1) return to the Company or its affiliates
all copies of all materials, including documentary or other recorded materials,
which are in Executive's possession or control and which contain or embody any
Confidential Information of the Company or its affiliates and (2) deliver to the
Company or its affiliates all copies of any Work Product in Executive's
possession or control. Executive shall not copy, reproduce or otherwise
re-create in any fashion any of the items referenced above for personal
retention by Executive.
12.6 The Executive acknowledges and agrees that: (i) the purposes of the
foregoing covenants are to protect the goodwill and Work Product and
Confidential Information of the Company and its affiliates in connection with
the transactions contemplated by the Merger Agreement, and to prevent the
Executive from interfering with the business of the Company and
27
the Affiliated Group as a result of or following termination of the Executive's
employment with the Company or the Affiliated Group, as applicable, (ii) because
of the nature of the business in which the Company and the Affiliated Group are
engaged and because of the nature of the Work Product and Confidential
Information to which the Executive has access, it would be impractical and
excessively difficult to determine the actual damages to the Company and the
Affiliated Group in the event the Executive breached any of the covenants of
this Section 12; and (iii) remedies at law (such as monetary damages) for any
breach of the Executive's obligations under this Section 12 would be inadequate.
The Executive therefore agrees and consents that if the Executive commits any
breach of a covenant under this Section 12 or threatens to commit any such
breach, the Company, and its affiliates shall have the right (in addition to,
and not in lieu of, any other right or remedy that may be available to each of
them) to temporary and permanent injunctive relief from a court of competent
jurisdiction, without posting and bond or other security and without the
necessity of proof of actual damage. With respect to any provision of this
Section 12 finally determined by a court of competent jurisdiction to be
unenforceable, the Executive and the Company and its affiliates hereby agree
that such court shall have jurisdiction to reform this Agreement or any
provision hereof so that it is enforceable to the maximum extent permitted by
law, and the parties agree to abide by such court's determination. If any of the
covenants of this Section 12 are determined to be wholly or partially
unenforceable in any jurisdiction, such determination shall not be a bar to or
in any way diminish the rights of the Company or its affiliates, as applicable,
to enforce any such covenant in any other jurisdiction.
28
12.7 The provisions of this Section 12 shall remain in full force and
effect until the expiration of the period specified herein notwithstanding he
earlier termination of the Executive's employment hereunder or the Employment
Period.
13. Beneficiaries; References. Executive shall be entitled to select
(and change, to the extent permitted under any applicable law) a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder following
Executive's death, and may change such election, in either case by giving the
Company written notice thereof. In the event of Executive's death or a judicial
determination of his incompetence, reference in this Agreement to Executive
shall be deemed, where appropriate, to refer to his beneficiary, estate or other
legal representative. Any reference to the masculine gender in this Agreement
shall include, where appropriate, the feminine.
14. Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
15. Governing Law; Consent to Jurisdiction.
15.1 Governing Law. This Agreement shall be construed, interpreted and
governed in accordance with the laws of the State of California, without
reference to rules relating to conflicts of law.
15.2 Consent to Jurisdiction. The parties hereto hereby agree and consent
to be subject to the exclusive jurisdiction of the courts of the State of
California sitting in the County of Los Angeles and the United States District
Court for the Central District of the State of California in any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the Merger. Each party hereto
hereby
29
irrevocably waives, to the fullest extent permitted by law, (i) any objection
that it may now or hereafter have to laying venue of any suit, action or
proceeding brought in such courts, and (ii) any claim that any suit, action or
proceeding brought in such courts has been brought in an inconvenient forum.
16. Effect on Prior Agreements. This Agreement contains the entire
understanding between the parties hereto and, as of the Effective Date,
Executive waives all payments and benefits under any prior or other employment
agreement or understanding between the Company or any affiliate of the Company
and Executive.
17. Withholding. The Company may withhold from any amounts payable under
this Agreement (including from shares of New Company Common Stock deliverable
under Section 3.4(b)) such Federal, state, local or foreign taxes as shall be
required to be withheld pursuant to any applicable law or regulation, or may
permit Executive to elect to pay the Company any such required withholding
taxes. If Executive so elects, the payment by Executive of such taxes shall be a
condition to the receipt of amounts payable to Executive under this Agreement.
The Company shall, to the extent permitted or required by law, have the right to
deduct any such taxes from any payment otherwise due to Executive.
18. Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original.
30
IN WITNESS WHEREOF, as of the date first above written, the Company has
caused this Agreement to be executed on its behalf by a duly authorized officer
and Executive has hereunto set Executive's hand.
SEMINIS MERGER CORP.
By /s/ Xxxxxxxxx Xxxxxxx Xxxxxx Date: May 30, 2003
---------------------------- ------------------
Name: Xxxxxxxxx Xxxxxxx Xxxxxx
Title: Vice President
/s/ Xxxxxxxx Xxxxxxx Date: May 30, 2003
------------------------------- ------------------
Xxxxxxxx Xxxxxxx
31
EXHIBIT A
FORM OF RELEASE AGREEMENT
This Release Agreement ("Release") is entered into as of this ______day of
________, (hereinafter "Execution Date"), by and between [Employee Full Name]
(hereinafter "Employee"), and Seminis, Inc. and its successors and assigns
(hereinafter, the "Company"). Employee and the Company are sometimes
collectively referred to herein as the "Parties".
1. Employee's employment with the Company is terminated effective [Month,
Day, Year] (hereinafter "Termination Date").
2. The Company has agreed to provide Employee the severance payments, awards
and benefits provided for in his/her Employment Agreement with the
Company, dated as of May __, 2003, after he/she executes this Release and
the Release becomes effective pursuant to its terms [FOR 40+ and does not
revoke it as permitted in Section 7 below, the expiration of such
revocation period being] the ("Effective Date").
3. Employee represents that he/she has not filed, and will not file, any
complaints, lawsuits, administrative complaints or charges relating to
his/her employment with, or resignation from, the Company[; provided,
however, that nothing contained in this Section 3 shall prohibit Employee
from bringing a claim to challenge the validity of the ADEA Release in
Section 7 herein]. In consideration of the severance payments, awards and
benefits described in Section 2, Employee, for himself/herself and for
his/her heirs, administrators, representatives, executors, successors and
assigns (collectively, "Releasers") agrees to release the Company, its
subsidiaries and affiliates, and their respective parents, direct or
indirect subsidiaries, divisions, affiliates and related companies or
entities, regardless of its or their form of business organization, any
predecessors, successors, joint ventures, and parents of any such entity,
and any and all of their respective past or present shareholders,
partners, directors, officers, employees, consultants, independent
contractors, trustees, administrators, insurers, agents, attorneys,
representatives and fiduciaries, including without limitation all persons
acting by, through, under or in concert with any of them, in each instance
in their capacities as representatives of the Company (collectively, the
"Released Parties"), from any and all claims, charges, complaints, causes
of action or demands of whatever kind or nature that Employee and his/her
Releasers now have or have ever had against the Released Parties, whether
known or unknown, including but not limited to: wrongful or tortious
termination; constructive discharge; implied or express employment
contracts and/or estoppel; discrimination and/or retaliation under any
federal, state or local statute or regulation, specifically including any
claims Employee may have under the Fair Labor Standards Act, the Americans
with Disabilities Act, Title VII of the Civil Rights Act of 1964 as
amended, and the Family and Medical Leave Act; the discrimination or other
employment laws of the State of [ ](1); any claims brought under any
federal or state statute or regulation for non-payment of wages or other
compensation, including grants of stock options or any other equity
compensation); and libel, slander, or breach of contract, other than the
breach of this Release. This Release specifically excludes claims,
charges, complaints, causes of action or
--------
(1) Insert state of employment.
demand that post-date the Termination Date. Notwithstanding anything
herein to the contrary, expressly excluded from this Release are any
claims (i) for payments, awards and benefits under the Employment
Agreement between the Parties dated _________, 2003, (ii) under the
Stockholders' Agreement dated as of _______, 2003 by and among Seminis,
Inc. and the Investors listed on the signature pages thereto, (iii) for
benefits provided under Company benefit plans, incentive plans or equity
plans (including, but not limited to, stock options, restricted stock
units and stock grants) or (iv) for indemnification and any applicable
directors and officers liability insurance coverage to which Employee was
entitled with regard to service as an officer of the Company.
4. Employee agrees to keep the terms of this Release in strict confidence,
but he/she may disclose the terms of this Release and provide a copy
hereof to his/her immediate family and his/her financial and legal
advisors.
5. Employee warrants that no promise or inducement has been offered for this
Release other than as set forth herein and in the Employment Agreement and
that this Release is executed without reliance upon any other promises or
representations, oral or written. Any modification of this Release must be
made in writing and be signed by Employee and the Company.
6. If any provision of this Release or compliance by Employee or the Company
with any provision of the Release constitutes a violation of any law, or
is or becomes unenforceable or void, then such provision, to the extent
only that it is in violation of law, unenforceable or void, will be deemed
modified to the extent necessary so that it is no longer in violation of
law, unenforceable or void, and such provision will be enforced to the
fullest extent permitted by law. If such modification is not possible,
such provision, to the extent that it is in violation of law,
unenforceable or void, will be deemed severable from the remaining
provisions of this Release, which provisions will remain binding on both
Employee and the Company. This Release is governed by, and construed and
interpreted in accordance with the laws of the State of [ ], without
regard to principles of conflicts of law. Employee consents to venue and
personal jurisdiction in the State of [ ] for disputes arising under this
Release. [ONLY IF THE STATE IS EMPLOYEE'S STATE OF EMPLOYMENT.] This
Release represents the entire understanding with the Parties with respect
to subject matter herein, no oral representations have been made or relied
upon by the Parties.
7. [FOR EMPLOYEES OVER 40 ONLY -- In further recognition of the above,
Employee hereby releases and discharges the Released Parties from any and
all claims, actions and causes of action that he/she may have against the
Released Parties, as of the date of the execution of this Release, arising
under the Age Discrimination in Employment Act of 1967, as amended
("ADEA"), and the applicable rules and regulations promulgated thereunder.
Employee acknowledges and understands that ADEA is a federal statute that
prohibits discrimination on the basis of age in employment, benefits and
benefit plans. Employee specifically agrees and acknowledges that: (A) the
release in this Section 7 was granted in exchange for the receipt of
consideration that exceeds the amount to which he/she would otherwise be
entitled to receive upon termination of his/her employment; (B) his/her
waiver of rights under this Release is knowing and voluntary as required
under the Older Workers
2
Benefit Protection Act; (B) that he/she has read and understands the terms
of this Release; (C) he/she has hereby been advised in writing by the
Company to consult with an attorney prior to executing this Release; (D)
the Company has given him/her a period of twenty-one (21) days within
which to consider this Release, which period may be waived by the
Employee's voluntary execution prior to the expiration of the twenty-one
day period; and (E) following his/her execution of this Release he/she has
seven (7) days in which to revoke his/her release as set forth in this
Section 7 only and that, if he/she chooses not to so revoke, the Release
in this Section 7 shall then become effective and enforceable and the
payments, awards and benefits provided herein shall then be made to
him/her in accordance with the terms of this Release, as well as the terms
of the Employment Agreement. To revoke this Release, Employee understands
that he/she must give a written revocation to the General Counsel of the
Company at [ ](2), either by hand delivery or certified mail within the
seven-day period. If he/she revokes the Release, it will not become
effective or enforceable and he/she will not be entitled to any benefits
from the Company.]
8. EMPLOYEE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS CAREFULLY READ AND
VOLUNTARILY SIGNED THIS RELEASE, THAT HE/SHE HAS HAD AN OPPORTUNITY TO
CONSULT WITH AN ATTORNEY OF HIS/HER CHOICE, AND THAT HE/SHE SIGNS THIS
RELEASE WITH THE INTENT OF RELEASING THE RELEASED PARTIES TO THE EXTENT
SET FORTH HEREIN.
9. In the event that any provision of this Release should be held to be
invalid or unenforceable, each and all of the other provisions of this
Release shall remain in full force and effect. If any provision of this
Release is found to be invalid or unenforceable, such provision shall be
modified as necessary to permit this Release to be upheld and enforced to
the maximum extent permitted by law.
10. Employee acknowledges that he/she is familiar with the provisions of
California Civil Code Section 1542, which provides as follows: "A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS/HER FAVOR AT HE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM/HER MUST HAVE MATERIALLY AFFECTED HIS/HER SETTLEMENT
WITH THE DEBTOR. EMPLOYEE BEING AWARE OF SAID CODE SECTION, HEREBY
EXPRESSLY WAIVES ANY RIGHT HE/SHE MAY HAVE THEREUNDER, AS WELL AS UNDER
ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT."
Employee being aware of said code section, hereby expressly waives any
right he/she may have thereunder, as well as under any other statutes or common
law principles of similar effect.
11. This Release inures to the benefit of the Company and its successors and
assigns.
----------
(2) Insert address.
3
ACCEPTED AND AGREED TO:
__________________________________ __________________________________
Seminis, Inc. [Employee Full Name]
Dated:____________________________ Dated:____________________________
4
