EMPLOYEE EMPLOYER RESTATED AGREEMENT
THIS AGREEMENT is made and
entered into as of September 1, 1997, by and between Delta & Pine Land Company,
a Delaware corporation, with offices at Xxx Xxxxxx Xxx, Xxxxx, Xxxxxxxxxxx 00000
(hereinafter called the "Corporation") and W. T. Jagodinksi, of 0000 Xxxxxxxxxx
Xx., Xxxxxxxxxx, Xxxxxxxxx (hereinafter referred to as "Employee"). WHEREAS, the
Corporation is engaged in the business of breeding, producing, conditioning and
marketing cotton planting seed, and maintains its principal office in Scott,
Mississippi; and WHEREAS, the Employee has heretofore served as an Employee of
the Corporation at the will of both the Corporation and the Employee and without
the formality of a written employment agreement; and WHEREAS, the parties have
agreed that it is appropriate to increase the base compensation payable to
Employee and the parties find it to be in their respective best interests to
modify the terms of the employment relationship which exists between the
parties; and WHEREAS, the Corporation desires to secure a non-competition
covenant from Employee; and WHEREAS, the parties to this Agreement believe it is
in their respective best interests to formalize an employment agreement and
thereby provide certain additional benefits and considerations in favor of both
the Corporation and the Employee. NOW, THEREFORE, in consideration of the mutual
covenants contained therein, and other good and valuable considerations, the
receipt and sufficiency of which is acknowledged by and between the parties, the
parties agree as follows: I. PURPOSE OF AGREEMENT It is the specific intent of
the parties to outline the agreed-upon terms of employment of the Employee. It
is also the specific intent of the parties to protect the Employee from any
adverse actions directed toward the Employee resulting from any Change in
Control or in Anticipation of a Change in Control as the terms are utilized in
this Agreement. The parties understand and acknowledge that if a Change in
Control should take place that notwithstanding the past performance of the
Employee, his loyalty to the Corporation, or his abilities or continued
performance, that persons assuming control of the Corporation might elect to
arbitrarily terminate the Employee, assign him to duties and responsibilities
beneath his status and capacity, transfer him to unacceptable locales or
communities, or otherwise take steps which would be designed to elicit his
resignation or create a situation where he could be terminated for other than
good cause as defined herein. Accordingly, this Agreement is entered into for
the purpose of both providing for the continued employment of the Employee under
current ownership circumstances, and further to protect the Employee in the
event of a Change in Control or actions taken in Anticipation of a Change in
Control. Nothing in this Agreement is intended to alter or affect stock options
which have been granted or which may hereinafter be granted to the Employee. II.
EMPLOYMENT 1. The Corporation hereby employs, engages and hires Employee as the
Corporation's Vice President of Finance and Treasurer. The Employee shall have
and agrees to assume primary responsibility, subject at all times to the
reasonable control of the President, Chief Executive Officer and the Board of
Directors, for supervising and overseeing accounting, finance and treasury
functions of the Corporation. 2. The Employee agrees to make available to the
Corporation all of his professional and managerial knowledge and skill, and to
provide such portion of his time as may be reasonably required for the proper
fulfillment of his duties. 3. Employee shall perform such other duties as are
customarily performed by one holding such position in other, same or similar
businesses or enterprises as that engaged in by the Corporation. 4. Employee
shall serve in such additional offices and capacities to which he may be
appointed or elected, from time to time, by the Board of Directors of the
Corporation. 5. Employee agrees that he will at all times faithfully,
industriously and to the best of his reasonable ability, experience and talents
perform all of the duties that may be required of and from him pursuant to the
expressed terms of this Agreement. 6. The parties agree that the Employee will
perform his duties in Xxxxx, Mississippi or Shelby County, Tennessee, or in such
other place or places as the Corporation and the Employee shall both agree upon,
subject to reasonable business-related travel required by the Employer of the
Employee consistent with travel required of other executive officers of the
Corporation. III. TERM 1. The term of this Agreement shall be for a period of
two (2) years from the date hereof. The Agreement shall automatically be
extended each day so that at on any given date, the time remaining under this
contract shall be for an additional two (2) year period, unless a party shall
have given written notice to the other party of said party's intent to terminate
the automatic extensions which otherwise take place daily. 2. The parties agree
that, except as a result of a Change in Control or in Anticipation of a Change
in Control, either party can provide for an early termination of this Agreement
upon three (3) months written notice to the other. If the Employee gives such
notice (except as a result of Change in Control or in Anticipation of a Change
in Control), the Corporation may elect to immediately terminate the Employee
without providing the employment benefits otherwise due to the Employee during
the remainder of the three (3) month period. Otherwise, the Employee will
continue to perform his duties as required under this Agreement during said
three (3) month period. If the Corporation elects to make an early termination
of employment (except as a result of Change in Control or in Anticipation of a
Change in Control), then the Employee shall remain in the employ of the
Corporation for a period of three (3) months and receive all benefits otherwise
payable to him pursuant to this Agreement. 3. If the Employee is terminated at
the time of or following a Change in Control or in Anticipation of a Change in
Control, or if the Employee resigns at the time of or following a Change in
Control, the Employee shall receive the benefits outlined in Section V herein.
4. If, during the term of this Agreement but before a Change in Control, the
Employee shall become unable to perform his duties by reason of illness or
incapacity for a continuous period of six (6) months, or for a total of eight
(8) months or more during any twelve (12) month period, then the Corporation
may, at its option, terminate this Agreement upon 30 days written notice, and
make payment to the Employee of the compensation payable to the Employee
pursuant to the terms of this Agreement as though the Agreement were terminated
by the Corporation as allowed in paragraph 2 of this Section. The Corporation
shall thereafter have no further obligations to the Employee or liabilities
under this Agreement. IV. COMPENSATION OF EMPLOYEE The Corporation shall pay the
Employee for all services to be performed under this Agreement as follows: 1.
Effective as of the date of this Agreement, the Corporation will pay Employee an
annual base salary of $150,000.00. Compensation shall be payable in equal
monthly installments or more frequently if compensation is generally paid more
frequently to other executive officers of the Corporation. Increases in the
annual base compensation shall be considered annually by the Board of Directors
for the Corporation and the Employee's compensation shall be subject to upward
adjustment from time to time as determined by the Board of Directors of the
Corporation. Increases in the Employee's compensation will be paid in conformity
with the Corporation's practice for payment of other executive officers of the
Corporation as such practice may be established or modified from time to time.
The Employee's compensation may not be reduced. 2. The Corporation will pay the
Employee bonuses consistent with standard practices of the Corporation in paying
bonuses to other executive officers of the Corporation. 3. The Corporation will
provide Employee employee benefits, such as group health insurance, including
executive medical plan benefits, long term disability, accidental death and
dismemberment, life insurance, the use of a company provided vehicle, a company
provided cellular telephone and all expenses associated therewith, participation
in retirement plans, profit sharing plans, 401K plans, savings plans and all
other fringe benefits upon the same terms as are or shall be granted or made
available by the Corporation to its other executive officers. 4. The Employee is
expected and encouraged from time to time to incur expenses for the promotion of
the business of the Corporation. The Corporation shall timely reimburse the
Employee for all reasonable and necessary expenses and disbursements incurred by
Employee in the performance of his duties in keeping with past practices. The
Employee shall, from time to time, but not more frequently than weekly nor less
frequently than quarterly, submit a report to the Chief Operating Officer (or
his designee) of the Corporation in a form with such detail as will constitute a
proper record for tax deductible expenses together with necessary vouchers and
receipts therefore. Expenses of a type which are typically reimbursed to other
executive officers of the Corporation shall be timely paid or reimbursed by the
Corporation. V. TERMINATION - CHANGE IN CONTROL 1. This Section is intended to
provide the Employee with reasonable protections against possible adverse
employment consequences resulting from a "Change in Control" or in Anticipation
of a "Change in Control". 2. Following a Change in Control or at the time of a
Change in Control or if, in Anticipation of a Change in Control, the employment
of the Employee is terminated by the Employee or by the Corporation for any
reason other than "cause" as the term is used herein, or disability as provided
in Section III, or the voluntary retirement of the Employee after he has reached
the age of 59-1/2 years, the Corporation shall pay the Employee,as a severance
package, compensation designed to compensate him for at least the two-year
period from the date of termination of employment which is contemplated by this
Agreement, as follows: (a) The Corporation shall immediately pay the Employee a
lump sum payment, in cash, in an amount equal to the largest annual amount of
salary and bonus compensation (total compensation reported on the Employee's W-2
and any 1099s issued by the Corporation, excluding stock option compensation)
paid to the Employee during any one calendar year which ends during the five (5)
years prior to the date of termination; and (b) The Corporation shall also pay
the Employee on a semi-monthly basis for 12 consecutive months commencing on the
first normal pay period following such termination, 1/2 of 1/12th (1/24th)of the
lump sum payment determined in the immediate preceding paragraph; and (c) The
Corporation shall maintain for the benefit of the Employee and his spouse and
any dependents, at the expense of the Corporation, for 24 months from the date
of termination of employment, all Employee benefit programs and arrangements,
including but not limited to health insurance, including executive medical plan
benefits, group life insurance, individual life insurance coverage, accidental
death and dismemberment coverage, long term disability coverage, and other
fringe benefits or benefit plans generally afforded other executive officers of
the Corporation. If any such coverage cannot be maintained because of
requirements of the insurance or other companies providing such benefits, the
Corporation shall provide and pay for alternative coverage providing essentially
identical benefits. The above period is to be in addition to that period of time
that the Employee may elect COBRA coverage under such applicable benefit plans.
It is the specific intent of the parties that the Employee shall be retained as
an Employee of the Corporation for the 24-month period for the sole and
exclusive purpose of receiving all such benefits. In this regard, it is the
specific agreement of the parties that those benefits which are typically
available under COBRA coverage, at the expense of the Employee, will be
available to the Employee at his expense for a period of 18 months following the
expiration of the 24 months listed above, even though COBRA coverage might
otherwise be unavailable as provided by law; and (d) The Corporation shall make
available at its expense for the Employee's use for 24 months following the
termination date, a cellular telephone and a company vehicle of the same make
and model which would otherwise have been made available to the Employee had he
remained in the employ of the Corporation in accordance with the vehicle policy
in effect as of the date of the Change in Control; and (e) In lieu of shares of
common stock of the Corporation issuable upon exercise of options previously
granted to the Employee under the Corporation's stock option plans, the Employee
may elect to surrender to the Corporation his rights in all outstanding stock
options then exercisable, if any, which are held by him, and upon such surrender
the Corporation shall pay the Employee an amount in cash equal to the aggregate
difference, on a per share basis, between (i) the option prices of the shares
subject to such surrendered options; and (ii) the higher of the average
aggregate price per share paid (in cash or other consideration) in connection
with any Change in Control or the then fair market value of the shares,
whichever is greater; and (f) Employee will likely be required to employ a
reputable national exective career transition agency to assist him in locating
and securing suitable employment opportunities. To compensate Employee for the
costs which he will likely incur, the Corporation will pay to Employee at the
time of termination an amount equal to 20% of the amount determined under
Section V 2(a). Employee will be responsible for any and all expenses in
pursuing an executive level employment or job opportunity search and the
Corporation shall have no other or further obligations to Employee except as
otherwise provided in this Agreement. (g) The Corporation shall continue to
cover the Employee under its Directors and Officers liability insurance policy
in substantially the form of coverage as such policy may be in effect as to the
Employee on the date of termination, for the longer of thirty six (36) months
following the termination of employment or such period as similar such coverage
is maintained by the Corporation, its successors or assigns for the benefit of
former directors and officers, whichever period is longer; and (h) The
Corporation shall provide the Employee with a job title ( Vice President -
Special Projects), reasonable secretarial assistance, a voice mailbox, and a
mail drop service to allow the Employee to initiate and continue his job search
as though he were still actively employed by the Corporation, and actively
handling Corporation matters. 3. It is specifically understood that the payments
to be made under Section V 2 above shall not be conditioned upon the Employee
performing any duties whatsoever on behalf of the Corporation except as is
specifically outlined in this Agreement. 4. In the event of a Change in Control,
or in Anticipation of a Change in Control, if the employment of the Employee
with the Corporation is terminated and if the Corporation does not honor the
terms, conditions and provisions of this Agreement, and if the Employee is
required to seek and secure independent legal counsel, then the Corporation
agrees to pay to the Employee all ordinary reasonable legal expenses and all
expenses of litigation reasonably incurred by the Employee in protecting his
rights under this Agreement. 5. In the event that any benefits provided and/or
payments made to or on behalf of Employee pursuant to this Section V (other than
those payments pursuant to Section V paragraph 2 (a) and Section V paragraph 2
(b)) are deemed to be taxable to the Employee for federal or state income tax
purposes, the Corporation agrees to tax protect such payments by grossing up
said taxable amount, using the highest marginal Federal and State income tax
rates in effect (including FICA and Medicare taxes) for that year and paying to
the Employee such additional amounts. Said payment amounts shall be calculated
quarterly (on a calendar-year basis) and paid to the Employee by the fifteenth
day of the second month following the close of each quarter. Final adjustments,
if any, will be made for each calendar year by March 15 of the following
calendar year and paid to the Employee by that date. VI. NON-COMPETITION 1.
Employer desires Employee to agree not to compete with the Corporation in the
event of the termination of employment following a Change in Control or in
Anticipation of a Change in Control. Employer is not willing to enter into this
Agreement without such a covenant. As additional consideration for the agreement
of Employer to make payments to or otherwise compensate Employee under this
Agreement, Employer has required Employee to give a Non-Competition Covenant.
Employer may not waive the non-competition obligations in this Section and be
relieved of any of its other obligations under this Agreement. 2. In the event
of a Change in Control or in Anticipation of a Change in Control, for the
one-year period following the termination of Employee's employment with the
Corporation for any reason, Employee shall not, without the prior written
consent of the Board of Directors of the Corporation, which consent may be
withheld at the sole, absolute and uncontrolled discretion of such Board of
Directors, engage or participate in, assist or have an interest in, whether as
an officer, director, partner, owner, employee or otherwise, the operation,
management or conduct of any business or enterprise that engages in the cotton
seed breeding, production and marketing process in the same geographical area
with any line of business in which the Corporation is now engaged. 3. Nothing in
this Section shall prohibit Employee from acquiring or holding, for investment
purposes only, securities or ownership interest of any entity which may compete
directly or indirectly with the Corporation. 4. Nothing in this Section shall
prohibit the Employee from seeking or securing employment with a corporation
which has a subsidiary or affiliate whose business activities include cotton
seed breeding, production and marketing so long as Employee's job duties and
responsibilities do not require or allow the Employee to directly engage in any
activities which would be in violation of this Section, and so long as he does
not violate any of his confidentiality obligations to the Corporation as
referred to in Section VIII. 5. In the event of a breach of this Agreement by
Employee, Employer may seek injunctive relief to prohibit the Employee from
engaging in prohibited competition and/or Employer may initiate legal
proceedings to collect actual damages to Employer resulting from such breach. A
breach by Employee shall not allow Employer to terminate its obligations to
Employee under the other provisions of this Agreement. VII. DEFINITIONS 1. As
used herein the term "Change in Control" shall mean (a) the transfer of
ownership (whether directly, indirectly, beneficially or of record) of shares in
excess of twenty percent (20%) of the outstanding shares of common stock of the
Corporation by a person or group of persons (including without limitation, a
corporation, trust, partnership, joint venture, individual or other entity), or
(b) the merger or consolidation into or with any other company, or sale of
assets of the Corporation to another corporation, (i.e., where the Corporation
is not the surviving and operating Corporation or where the stockholders prior
to such transaction(s) do now own at least 80% of the outstanding common stock
of the surviving Corporation after such transaction(s)) or (c) the persons who
are Directors of the Corporation as of the date hereof cease to constitute a
majority of the Board of Directors of the Corporation during any 36 month period
after a transaction described in (a) or (b). "Change in Control" shall also mean
(i) any merger, consolidation, reorganization, or other business combination
pursuant to which the business of the Corporation is combined with that of one
or more purchasers, or one or more persons or other business entities formed by
or affiliated with a purchaser, including, without limitation, any joint
venture, or (ii) the acquisition, directly or indirectly, by one or more
purchasers of more than twenty percent (20%) of the then outstanding capital
stock of the Corporation by way of a tender or exchange offer, negotiated
purchase or other means, or (iii) the acquisition, directly or indirectly, by
one or more purchasers of all or substantially all of the assets of, or of any
right to, all or substantially of the revenues or income of the Corporation by
way of a negotiated purchase, exchange, joint venture, lease, license or other
similar means, or (iv) the acquisition, directly or indirectly, by one or more
purchasers of control of the Corporation, other than through the acquisition of
the Corporation's voting capital stock, or (v)in the event that a fee is paid
by the Corporation to any major investment banking firm for services in any
transaction or a series of transactions other than as described in (i) through
(iv) above. The occurrence of any one of the above events in the immediate
preceding two paragraphs shall constitute a "Change in Control ". 2.
"Anticipation of a Change in Control" means any action taken during the
twelve-month period prior to a Change in Control. Specifically, the termination
of the Employee, other than for cause as defined below, during the twelve-month
period prior to a Change in Control will be conclusively presumed to constitute
a termination of the Employee in Anticipation of a Change in Control. 3.
"Cause", as the term is used with respect to the termination of the Employee for
cause, shall mean a conviction of the Employee of a felony involving moral
turpitude. VIII. RATIFICATION OF CONFIDENTIALITY AGREEMENT The parties
understand and acknowledge that the Employee previously executed a
Confidentiality Agreement on or about the ______ day of _______________, 19___.
The parties wish to restate said Agreement and ratify the terms, conditions and
provisions thereof. The termination of the Employee's employment, except in
violation of this Agreement, shall not affect the obligations of the Employee to
the Corporation with respect to the Confidentiality Agreement. IX. MISCELLANEOUS
PROVISIONS 1. This Agreement shall constitute the entire agreement between the
parties and any prior understanding or representations of any kind preceding the
date of this Agreement and shall not be binding upon either party, except to the
extent incorporated in this Agreement. 2. Any modification of this Agreement or
additional obligation assumed by either party in connection with this Agreement
shall be binding only if evidenced in writing and signed by the party to be
charged. 3. It is agreed that this Agreement shall be governed by construed and
enforced in accordance with the laws of the State of Mississippi. 4. Any notice
provided for or concerning this Agreement shall be in writing and shall be
deemed sufficiently given when sent by certified or registered mail if sent to
the respective addresses of the parties as set forth in the beginning of this
Agreement. Either party may give written notice to the other that the addresses
to be utilized for notice purposes have been altered.
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first written above.
DELTA & PINE LAND COMPANY a Delaware corporation
X.X. Xxxxxxxxxx By:/s/ X.X. Xxxxxxxxxx
Title:Vice President - Finance STATE OF MISSISSIPPI COUNTY OF Bolivar
Personally appeared before me, X.X. Xxxxxxxxxx, with whom I am personally
acquainted and who acknowledged that he executed the within instrument for the
purposes therein contained. Witness my hand, at office, this 14th day of
January, 1998. My commission
expires: March 5, 1998 Notary Public /s/ Xxxxxxx Xxxxxx Xxxxxx
STATE OF MISSISSIPPI COUNTY OF
Bolivar Before me, a Notary Public in and for said state and county, duly
commissioned and qualified, personally appeared
Xxxxx X. Xxxxxx, with whom I am personally acquainted (or
proved to me on the basis of satisfactory evidence), and who, upon oath,
acknowledged himself to be Chairman and Chief Executive Officer of Delta
& Pine Land Company, the
within named bargainor, a Delaware corporation, and that he executed the
foregoing instrument for the purpose therein contained, by signing the name of
the corporation by himself as /s/Xxxxx X. Xxxxxx. Witness my hand,
at office this 14th day of January, 1998. (SEAL)Notary Public: Xxxxxxx
Xxxxxx Xxxxxx My
commission expires:March 5, 1998__
