EXHIBIT 10.1
AMENDED AND RESTATED
AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT is made and entered into as of
August 25, 2006, by and between Delta and Pine Land Company, a Delaware
corporation, with offices at Xxx Xxxxxx Xxx, Xxxxx, Xxxxxxxxxxx 00000
(hereinafter called the "Corporation") and X. X. Xxxxxxxxxx, 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 and the Corporation entered into an employment
agreement dated as of September 1, 1997, as modified by the letter
agreement, dated January 14, 1998, and the parties desire to amend and
restate such agreement to reflect the Employee's current employment status
with the Corporation and to provide other protections to the Employee; 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 amend and restate this 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 a Change in Control may take place.
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 President and Chief Executive Officer. The Employee shall
have and agrees to assume primary responsibility, subject at all times to
the reasonable control of the Board of Directors, for supervising and
overseeing all 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, 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 $400,000.00. 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 employee 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, 401 K 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, submit a
report to the Vice President- Finance and Treasurer (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.
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. Immediately upon a Change in Control (the "CIC Date"), if the
Employee is employed by the Company or if the employment of the Employee
was terminated by the Corporation for any reason in Anticipation of a
Change in Control, the Corporation shall pay the Employee the following:
(a) The Corporation shall immediately upon the CIC Date pay the
Employee a lump sum payment, in cash, equal to any salary payments
earned but not paid through the CIC Date plus a pro-rata bonus equal
to the product of (1) the Employee's highest annual bonus earned
(whether paid or unpaid) during any one of the last five (5) fiscal
years that ended prior to the CIC Date (or, in each case, such lesser
period for which annual bonuses were paid or payable to the Employee)
(the "Bonus Amount") multiplied by (2) a fraction, the numerator of
which is the number of days elapsed from the start of the fiscal year
in which the Change in Control occurs through the CIC Date and the
denominator of which is 365; and
(b) The Corporation shall immediately upon the CIC Date pay the
Employee a lump sum payment, in cash, in an amount equal to three
times the sum of (1) the Employee's annual base salary at the rate in
effect immediately prior to the Change in Control (including all
amounts of his base salary that are deferred under the qualified and
non-qualified employee benefit plans of the Company or any other
agreement or arrangement) (the "Base Amount") and (2) the Bonus
Amount; and
(c) The Corporation shall pay all premiums on behalf of, and at
no additional cost to the Employee, for the benefit of the Employee
and his spouse and any dependents, for 36 months from the CIC Date
(regardless of whether the employment of the Employee is terminated
for any reason), on all employee benefit programs and arrangements,
including but not limited to health insurance, including employee
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 at no additional cost to the Employee. In the event
that the Employee's employment is terminated for any reason during the
above period, the remaining portion of such period is to be in
addition to that period of time that the Employee may elect COBRA
coverage under such applicable benefit plans. In this regard, it is
the specific agreement of the parties that, if the Employee's
employment has terminated, 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 36 months listed above, even though
COBRA coverage might otherwise be unavailable as provided by law; and
(d) For a period of at least 36 months following the CIC Date,
the Corporation shall continue to make available, at its expense, a
cellular telephone and a company vehicle of the make and model to
which the Employee is entitled in accordance with the vehicle policy
in effect as of the CIC Date; and
(e) In lieu of shares of common stock of the Corporation issuable
upon exercise of outstanding options granted to the Employee under the
Corporation's stock option plans, the Employee shall surrender on the
CIC Date to the Corporation his rights in all outstanding stock
options then exercisable, 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 accounting firm to assist and advise him with respect to his
finances following a Change in Control. To compensate Employee for the
costs which he will likely incur, the Corporation will pay to Employee
at the CIC Date an amount equal to 20% of the sum of the Base Amount
and the Bonus Amount; and
(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 CIC Date, for the longer of thirty six (36) months
following the CIC Date 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) For 36 months following the CIC Date, the Corporation shall
continue to provide the Employee with a reasonable secretarial
assistance, a voice mailbox, a laptop computer, an email account and a
mail drop service.
(i) The Corporation shall pay the Employee a lump sum payment in
an amount equal to difference between the present values of (1) the
Employee's retirement benefit under the Corporation Retirement Plan
(the "Retirement Plan"), determined on the date of termination as if
the Employee were credited with an additional three Years of Credited
Service (as such term is defined in the Retirement Plan) and annual
compensation continued at the same rate as in effect on the CIC Date
under the Retirement Plan and (2) the Employee's retirement benefit
under the Retirement Plan, determined on the date of termination based
on the Employee's actual Years of Credited Service under the
Retirement Plan.
3. The Corporation shall pay all legal fees and related expenses
(including the costs of experts, evidence and counsel) incurred by the
Employee as they become due as a result of the Employee seeking to obtain
or enforce any right or benefit provided by this Agreement (including, but
not limited to, any such fees and expenses incurred in connection with (i)
the dispute and (ii) the Gross-Up Payment whether as a result of any
applicable government taxing authority proceeding, audit or otherwise) or
by any other plan or arrangement maintained by the Corporation under which
the Employee is or may be entitled to receive benefits).
4. 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.
5. (a) In the event it shall be determined that any payment
(other than the payment provided for in this Section) or distribution
of any type to or for the benefit of the Employee, by the Corporation,
any of its affiliates, any person who acquires ownership or effective
control of the Corporation or ownership of a substantial portion of
the Corporation's assets (within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder) or any affiliate of such person, whether paid
or payable or distributed or distributable pursuant to the terms of
this Agreement or otherwise (the "Total Payments"), would be subject
to the excise tax imposed by Section 4999 of the Code or any interest
or penalties with respect to such excise tax (such excise tax,
together with any such interest and penalties, are collectively
referred to as the "Excise Tax"), then the Employee shall be entitled
to receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by the Employee of all taxes (including any
interest or penalties imposed with respect to such taxes), including
any income tax, employment tax or Excise Tax, imposed upon the
Gross-Up Payment, the Employee retains an amount of the Gross-Up
Payment equal to the Excise Tax imposed upon the Total Payments. For
purposes of determining the amount of the Gross-Up Payment, the
Employee shall be deemed to pay federal, state and local income taxes
and employment taxes at the highest marginal rate of federal, state
and local income taxation and employment taxation in the calendar year
in which the Gross-Up Payment is to be made and/or the calendar year
in which the CIC Date occurs, as applicable, net of the maximum
reduction in federal income taxes that may be obtained from the
deduction of such state and local taxes.
(b) All mathematical determinations, and all determinations as to
whether any of the Total Payments are "parachute payments" (within the
meaning of Section 280G of the Code), that are required to be made
under this subsection, including determinations as to whether a
Gross-Up Payment is required, the amount of such Gross-Up Payment and
amounts relevant to the last sentence of this subsection shall be made
by an independent accounting firm selected by the Employee from among
the four largest accounting firms in the United States (the
"Accounting Firm"), which shall provide its determination (the
"Determination"), together with detailed supporting calculations
regarding the amount of any Gross-Up Payment and any other relevant
matter, both to the Corporation and the Employee by no later than ten
days following the CIC Date, if applicable, or such earlier time as is
requested by the Corporation or the Employee. If the Accounting Firm
determines that no Excise Tax is payable by the Employee, it shall
furnish the Employee and the Corporation with an opinion reasonably
acceptable to the Employee and the Corporation that no Excise Tax is
payable (including the reasons therefor) and that he has substantial
authority not to report any Excise Tax on his federal income tax
return. If a Gross-Up Payment is determined to be payable, it shall be
paid to the Employee within ten (10) days after the Determination (and
all accompanying calculations and other material supporting the
Determination) is delivered to the Corporation or the Employee. Any
determination by the Accounting Firm shall be binding upon the
Corporation and the Employee, absent manifest error. As a result of
uncertainty in the application of Section 4999 of the Code at the time
of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments not made by the Corporation should
have been made ("Underpayment"), or that Gross-Up Payments will have
been made by the Corporation which should not have been made
("Overpayments"). In either such event, the Accounting Firm shall
determine the amount of the Underpayment or Overpayment that has
occurred. In the case of an Underpayment, the amount of such
Underpayment (together with any interest and penalties payable by the
Employee as a result of such Underpayment) shall be promptly paid by
the Corporation to or for the benefit of the Employee. In the case of
an Overpayment, the Employee shall, at the direction and expense of
the Corporation, take such steps as are reasonably necessary
(including, if reasonable, the filing of returns and claims for
refund), follow reasonable instructions from, and procedures
established by, the Corporation, and otherwise reasonably cooperate
with the Corporation to correct such Overpayment, provided, however,
that (i) Employee shall not in any event be obligated to return to the
Corporation an amount greater than the net after-tax portion of the
Overpayment that he has retained or has recovered as a refund from the
applicable taxing authorities and (ii) this provision shall be
interpreted in a manner consistent with the intent to make the
Employee whole, on an after-tax basis, from the application of the
Excise Tax, it being understood that the correction of an Overpayment
may result in the Employee repaying to the Corporation an amount which
is less than the Overpayment. The fees and expenses of the Accounting
Firm shall be paid by the Corporation.
6. In the event that the Corporation determines that the payment
of any amounts under this Agreement prior to January 1, 2007 would result
in the imposition of an excise tax under Section 409A of the Internal
Revenue Code of 1986, as amended (the "Code"), and an independent
accounting firm selected by the Employee from among the four largest
accounting firms in the United States agrees with such determination by the
Corporation, the payment of such amounts shall be delayed until the first
business day after December 31, 2006 or the CIC Date, whichever is later.
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 eighteen-month 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.
VII. DEFINITIONS
1. As used herein the term "Change in Control" shall mean the
occurrence of any of the following:
(a) An acquisition (other than directly from the Company) by any
"Person" (as the term person is used for purposes of Section 13(d) or
14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), immediately after which such Person has "Beneficial
Ownership" (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of twenty percent (20%) or more of the then outstanding
common shares ("Shares") or the combined voting power of the Company's
then outstanding voting securities; provided, however, in determining
whether a Change in Control has occurred pursuant to this Section,
Shares or voting securities which are acquired in a "Non-Control
Acquisition" (as hereinafter defined) shall not constitute an
acquisition which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (i) an employee benefit plan
(or a trust forming a part thereof) maintained by (A) the Company or
(B) any corporation or other Person of which a majority of its voting
power or its voting equity securities or equity interest is owned,
directly or indirectly, by the Company (for purposes of this
definition, a "Subsidiary"), (ii) the Company or its Subsidiaries, or
(iii) any Person in connection with a "Non-Control Transaction" (as
hereinafter defined);
(b) The individuals who on August 1, 2006 are members of the
Board (the "Incumbent Board"), cease for any reason to constitute at
least two-thirds of the members of the Board; provided, however, that
if the election, or nomination for election by the Company's common
stockholders, of any new director was approved by a vote of at least
two-thirds of the Incumbent Board, such new director shall, for
purposes of this Plan, be considered as a member of the Incumbent
Board; provided further, however, that no individual shall be
considered a member of the Incumbent Board if such individual
initially assumed office as a result of either an actual or threatened
"Election Contest" (as described in Rule 14a-11 promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board (a "Proxy
Contest") including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
(c) The consummation of:
(1) A merger, consolidation or reorganization with or into
the Company or in which securities of the Company are issued,
unless such merger, consolidation or reorganization is a
"Non-Control Transaction." A "Non-Control Transaction" shall mean
a merger, consolidation or reorganization with or into the
Company or in which securities of the Company are issued where:
(A) the stockholders of the Company, immediately before
such merger, consolidation or reorganization, own directly
or indirectly immediately following such merger,
consolidation or reorganization, at least fifty percent
(50%) of the combined voting power of the outstanding voting
securities of the corporation resulting from such merger or
consolidation or reorganization (the "Surviving
Corporation") in substantially the same proportion as their
ownership of the voting securities immediately before such
merger, consolidation or reorganization,
(B) the individuals who were members of the Incumbent
Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization
constitute at least two-thirds of the members of the board
of directors of the Surviving Corporation, or a corporation
beneficially directly or indirectly owning a majority of the
voting securities of the Surviving Corporation, and
(C) no Person other than (1) the Company, (2) any
Subsidiary, (3) any employee benefit plan (or any trust
forming a part thereof) that, immediately prior to such
merger, consolidation or reorganization, was maintained by
the Company or any Subsidiary, or (4) any Person who,
immediately prior to such merger, consolidation or
reorganization had Beneficial Ownership of twenty percent
(20%) or more of the then outstanding voting securities or
Shares, has Beneficial Ownership of twenty percent (20%) or
more of the combined voting power of the Surviving
Corporation's then outstanding voting securities or its
common stock.
(2) A complete liquidation or dissolution of the Company; or
(3) The sale or other disposition of all or substantially
all of the assets of the Company to any Person (other than a
transfer to a Subsidiary or the distribution to the Company's
stockholders of the stock of a Subsidiary or any other assets).
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the then
outstanding Shares or voting securities as a result of the acquisition of
Shares or voting securities by the Company which, by reducing the number of
Shares or voting securities then outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Persons, provided that
if a Change in Control would occur (but for the operation of this sentence)
as a result of the acquisition of Shares or voting securities by the
Company, and after such share acquisition by the Company, the Subject
Person becomes the Beneficial Owner of any additional Shares or voting
securities which increases the percentage of the then outstanding Shares or
voting securities Beneficially Owned by the Subject Person, then a Change
in Control shall occur.
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.
4. "Confidential Information" means (a) all technical and
business information of the Corporation, whether patentable or not, which
is of a confidential, trade secret and/or proprietary character and that is
either developed by the Employee (alone or with others) or to which the
Employee has had access during his employment, (b) all confidential
evaluations, and (c) the confidential use or non-use by the Corporation of
technical or business information in the public domain.
VIII.
CONFIDENTIALITY
1. (a) The Employee shall use his best efforts and diligence both
during and after employment by the Corporation to protect the confidential,
trade secret and/or proprietary character of all Confidential Information.
The Employee shall not, directly or indirectly, use (for the Employee or
another) or disclose any Confidential Information, for so long as it shall
remain proprietary or protectible as confidential or trade secret
information, except as may be necessary for the performance of the
Employee's duties with the Corporation. The Employee shall promptly deliver
to the Corporation, at the termination of the Employee's employment, or at
any other time at the Corporation's request, without retaining any copies,
all documents and other material in the Employee's possession relating,
directly or indirectly, to any Confidential Information.
(b) Each of the Employee's obligations in this Section VIII shall
also apply to the confidential, trade secret and proprietary
information learned or acquired by the Employee during his employment
from others with whom the Corporation has a business relationship. The
Employee understands that he is not to disclose to the Corporation, or
use for its benefit, any of the confidential, trade secret or
proprietary information of others, including any of the Employee's
former employers.
(c) In no event shall an asserted violation of the provisions of
this Section VIII constitute a basis for deferring or withholding any
amounts otherwise payable to the Employee under this 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
Delaware.
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 and Pine Land Company /s/ X.X. Xxxxxxxxxx
a Delaware corporation ---------------------------------
X.X. Xxxxxxxxxx
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
Chair of Comp. Comm.
STATE OF Tennessee
COUNTY OF Shelby
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 25th day of August, 2006.
(SEAL)
/s/ Xxxxx Xxxxxxx
---------------------------------
Notary Public
My commission expires:
2/10/10
----------------------------
XXXXX XX Xxx Xxxx
XXXXXX XX Xxx Xxxx
Before me, a Notary Public in and for said state and county, duly
commissioned and qualified, personally appeared Xxxxxx 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 a director and
Chairman of Comp. Comm. of Delta and 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 Chairman Comp. Comm. and Director.
Witness my hand, at office this 23rd day of August 2006.
(SEAL)
/s/ Xxxxxxxx Tieng
---------------------------------
Notary Public
My commission expires:
April 15, 2010
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