PRIVILEGED AND CONFIDENTIAL
EMPLOYMENT AGREEMENT
AGREEMENT, made May 30, 2003 by and between Seminis Merger
Corp., a Delaware corporation ("Seminis Merger Corp.") and Xxxxxx 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 the Company in the
position set forth on Schedule 1.2 hereto 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) and the second sentence
of Section 16 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) in
the position set forth on Schedule 1.2 hereto, and shall have powers,
responsibilities and authorities substantially similar to the powers,
responsibilities and authority that are customary of such position at
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 with the Company in the position set forth
on Schedule 1.2 hereto, 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
activities do not interfere with the performance of Executive's duties and
responsibilities hereunder or violate the provisions of Section 12 of this
Agreement.
2
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
the duties and responsibilities of his position with the Company.
1.6 Executive's principal location of employment shall be at the
location set forth on Schedule 1.6 hereto, 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 the initial annual
base salary set forth on Schedule 3.1 hereto. The Base Salary shall be reviewed
by the Company no less frequently than annually 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"
3
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 55% of Base
Salary (the "Target Bonus") and a maximum Bonus of 68.75% 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 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)
4
(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:
5
PERFORMANCE MATRIX
APPLICABLE
IF PERFORMANCE IS: PERCENTAGE:
------------------ -----------
LESS THAN 90%
of Performance 0%
Objective
90%
of Performance 50%
Objective
95%
of Performance 75%
Objective
100%
of Performance 100%
Objective
125% of
Performance 125%
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 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.
6
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 the number of restricted stock units of the Company (the
"Restricted Stock Units") set forth on Schedule 3.4(a) hereto. The Restricted
Stock Units 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 = ("Total 1" (as set forth on Schedule 3.4(b) hereto))(.4)(Applicable
Percentage for the Target Component) + (Total 1)(.2)(Applicable Percentage for
the Individual Component) + (Total 1)(.2)(Applicable Percentage for the Sales
Component) + (Total 1)(.2)(Applicable Percentage for the Net Working Capital
Component)
FISCAL YEAR ENDING IN 2005:
N = (Total 1)(.4)(Applicable Percentage for the Target Component) + (Total
1)(.2)(Applicable Percentage for the Individual Component) + (Total
1)(.2)(Applicable Percentage for the Sales Component) + (Total 1)(.2)(Applicable
Percentage for the Net Working Capital Component)
FISCAL YEAR ENDING 2006:
7
N = ("Total 2" (as set forth on Schedule 3.4(b) hereto))(.4)(Applicable
Percentage for the Target Component) + (Total 2)(.2)(Applicable Percentage for
the Individual Component) + (Total 2)(.2)(Applicable Percentage for the Sales
Component) + (Total 2)(.2)(Applicable Percentage for the Net Working Capital
Component)
FISCAL YEAR ENDING 2007:
N = ("Total 3" (as set forth on Schedule 3.4(b) hereto))(.4)(Applicable
Percentage for the Target Component) + (Total 3)(.2)(Applicable Percentage for
the Individual Component) + (Total 3)(.2)(Applicable Percentage for the Sales
Component) + (Total 3)(.2)(Applicable Percentage for the Net Working Capital
Component)
FISCAL YEAR ENDING 2008:
N = (Total 3)(.4)(Applicable Percentage for the Target Component) + (Total
3)(.2)(Applicable Percentage for the Individual Component) + (Total
3)(.2)(Applicable Percentage for the Sales Component) + (Total 3)(.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 Restricted Stock Units shall be equal to
the sum of (A) (N)(.5) (the Applicable Percentage for the
8
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 50%
Performance
Objective
95% of 75%
Performance
Objective
100% of 100%
Performance
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
92% of Performance Objective, then the Applicable Percentage shall be 60%,
etc.). To the
9
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 Units to which they relate.
10
(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.
(vi) The vested Restricted Stock Units and any Restricted
Stock Units that
11
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.
12
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.
13
(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
14
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. In addition, Executive shall be entitled to the perquisites
and other fringe benefits generally made available to similarly situated
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 as set forth on
Schedule 4.2 hereto.
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
15
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:
(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 second
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 two (2) 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
16
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
two-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 and the last sentence of Section 6.2(a) 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 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
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 benefits specifically set forth in
Schedule 4.2 of this Agreement) as a result of a change
17
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 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. Notwithstanding the foregoing, if Executive voluntarily terminates
his employment
18
other than for Good Reason prior to the first anniversary of the Effective Date,
the Company shall pay Executive severance equal to three-twelfths of Base Salary
plus twenty (20) days times number of complete years of service (assuming a
service beginning year of 1977) times Base Salary divided by three hundred and
sixty-five (365).
(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 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 value 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
19
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, 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.
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.
20
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:
Seminis, Inc.
0000 Xxxxxx xxx Xxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Attn: General Counsel
with a copy to:
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:
Xxxxxx Xxxxxxx
At the address most recently on
file with the Company
with a copy to:
Milbank, Tweed, Xxxxxxx & XxXxxx, LLP
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx Xxxxxx
21
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 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 the Company 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
22
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 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
23
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, 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
24
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 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
25
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 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
26
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 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
27
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.
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.
28
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 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, including, but not limited to, the employment agreement between
Seminis Vegetable Seeds, Inc. and Executive executed as of July 1, 2001 (the
"Prior Agreement"). Notwithstanding the forgoing, effective as of the date
hereof, Executive waives his right to, and agrees not to accept all payments
under the Prior Agreement upon voluntary termination of Executive's employment
with the Company or termination of Executive's employment with the Company by
the Company for Cause, and will repay to Seminis Merger Corp. on the Effective
Date any such payments made, provided, that such provisions of the Prior
Agreement shall again become operative in the event that the Merger Agreement is
terminated prior to consummation of the Merger.
17. Withholding. The Company may withhold from any amounts payable
under this Agreement (including from shares of New Company Common Stock
deliverable under Section
29
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/ Xxxxxxxx Xxxxxxx Date: May 30, 2003
--------------------- ---------------
Name: Xxxxxxxx Xxxxxxx
Title: President
/s/ Xxxxxx Xxxxxxx Date: 05/30/03
------------------------ ---------------------
Xxxxxx 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
SCHEDULES TO TIER III EMPLOYMENT AGREEMENT: XXXXXX XXXXXXX
SCHEDULE 1.2
POSITION
Vice President - Finance and World Wide
Corporate Comptroller
SCHEDULE 1.6
LOCATION OF EMPLOYMENT
The Company's offices in Oxnard, California
SCHEDULE 3.1
BASE SALARY
$262,051
SCHEDULE 3.4(a)
RESTRICTED STOCK UNITS
173,416
SCHEDULE 3.4(b)
Total 1: 17,341.6
Total 2: 34,683.2
Total 3: 52,024.8
SCHEDULE 4.2
(a) all fees and expenses incurred in connection with satisfying applicable
government working requirements, including visas;
(b) 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.
(c) family membership to a sport or social club of Executive's choice;
(d) use of a Company automobile 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).
