Exhibit 10.3
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is entered into
as of July 1, 2005 by and between SEABOARD FARMS, INC., an
Oklahoma corporation (together with any Successor thereto, the
"Company"), and Xxxxxx X. Xxxxxxxxx ("Executive").
WITNESSETH:
WHEREAS, the Company desires to employ and secure the
exclusive services of Executive on the terms and conditions set
forth in this Agreement;
WHEREAS, Executive desires to accept such employment on such
terms and conditions; and
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and promises contained herein and for other good
and valuable consideration, the Company and Executive hereby
agree as follows:
1. Agreement to Employ. Upon the terms and subject to the
conditions of this Agreement, the Company hereby agrees to
continue to employ Executive, and Executive hereby accepts such
continued employment with the Company.
2. Term; Position and Responsibilities; and Location.
(a) Term of Employment. Unless Executive's employment shall
sooner terminate pursuant to Section 8, the Company shall
continue to employ Executive on the terms and subject to the
conditions of this Agreement for a term commencing on July 1,
2005 (the "Commencement Date") and ending on the date which is
five years after the Commencement Date, provided, however, on
each annual anniversary date of the Commencement Date (an "Annual
Anniversary Date"), Executive's employment hereunder shall be
deemed to be automatically extended, upon the same terms and
conditions for five years after such Annual Anniversary Date,
unless the Company shall have given written notice to Executive,
at least thirty (30) days prior to the expiration of such Annual
Anniversary Date, of its intention not to extend the Employment
Period (as defined below) hereunder. Notwithstanding the
foregoing, unless mutually agreed to by the Company and the
Executive, Executive's employment hereunder shall under no
circumstances extend beyond December 31, 2029. The period during
which Executive is employed by the Company pursuant to this
Agreement, including any extension thereof in accordance with the
preceding sentence, shall be referred to as the "Employment
Period."
(b) Position and Responsibilities. During the Employment
Period, Executive shall serve as President, and shall have such
duties and responsibilities as are customarily assigned to
individuals serving in such position and such other duties
consistent with Executive's title and position as the Board of
Directors of the Company (the "Board") specifies from time to
time. Executive shall devote all of his skill, knowledge,
commercial efforts and business time to
the conscientious and good faith performance of his duties and
responsibilities for the Company to the best of his ability.
(c) Location. During the Employment Period, Executive's
services shall be performed primarily in the Kansas City
metropolitan area. However, Executive may be required to travel
in and outside of Kansas City as the needs of the Company's
business dictate.
3. Base Salary. During the Employment Period, the Company
shall pay Executive a base salary at an annualized rate of Three
Hundred Seventy thousand dollars ($370,000), payable in
installments on the Company's regular payroll dates. The Board
shall review Executive's base salary annually during the
Employment Period and may increase (but not decrease) such base
salary from time to time, based on its periodic review of
Executive's performance in accordance with the Company's regular
policies and procedures. The annual base salary payable to
Executive from time to time under this Section 3 shall
hereinafter be referred to as the "Base Salary."
4. Annual Bonus Compensation. Executive shall be eligible to
receive an annual bonus ("Annual Bonus") with respect to each
calendar year ending during the Employment Period. The Annual
Bonus shall be determined by the Board of Directors, in its
discretion. Executive's Annual Bonus shall not be less than four
hundred thousand dollars ($400,000) for any calendar year during
the Employment Period. The Annual Bonus is earned pro-rata
throughout each year. The Annual Bonus for each year shall be
payable in cash on or before March 1 of the following year.
5. Car Allowance. During Executive's Employment Period,
Executive will be entitled to receive an annual car allowance and
gasoline charge privileges in accordance with the Company's car
allowance policy.
6. Executive Benefits. During the Employment Period, Executive
will be eligible to participate in the employee and executive
benefit plans and programs maintained by the Company from time to
time in which executives of the Company at Executive's grade
level are eligible to participate, including medical, dental,
disability, hospitalization, life insurance, and retirement
(i.e., 401K, pension and executive retirement plans), deferred
compensation and savings plans, on the terms and subject to the
conditions set forth in such plans; as may be amended from time
to time; provided, however, the benefits provided by the Company
will not be amended to provide for any benefits which are
materially less than the current benefits provided to Executive
at the Commencement Date.
7. Indemnification; Expenses; Paid Time Off.
(a) Indemnification. Except to the extent, if any, prohibited
by law, the Company shall indemnify Executive against expenses
(including attorneys' fees of counsel selected by Executive),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by Executive in connection with any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, to
which Executive was, is, or is threatened to be, made a party by
reason of facts which include Executive's being or having
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been an employee, officer, director or agent of the Company or
any Affiliates. Except to the extent, if any, prohibited by law,
the Company shall pay expenses (including attorneys' fees of
counsel selected by Executive) actually and reasonably incurred
by Executive in defending any such action, suit or proceeding in
advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by Executive to repay
such amounts so paid on Executive's behalf if it shall ultimately
be determined that Executive is not entitled to be indemnified by
the Company for such expenses under applicable law. The
provisions of this Section 7(a) shall (i) survive termination of
this Agreement; and (ii) not be deemed exclusive of any other
indemnification or expense rights to which Executive may be
entitled.
(b) Business Expenses. During the Employment Period, the
Company will reimburse Executive for all reasonable and necessary
business-related expenses incurred by Executive at the request of
and on behalf of the Company in accordance with The Company's
normal expense reimbursement policies.
(c) Paid Time Off. During the Employment Period, Executive
shall be entitled to paid time off on an annualized basis in
accordance with the Company's paid time off policy. Executive
shall also be entitled to Company-designated holidays.
8. Termination of Employment.
(a) Termination Due to Death or Disability. Executive's
employment shall automatically terminate upon Executive's death
and may be terminated by the Company due to Executive's
Disability (as defined below in this subsection (a)). In the
event that Executive's employment is terminated due to his
Disability or death, no termination benefits shall be payable to
or in respect of Executive except as provided in
Section 8(f)(ii). For purposes of this Agreement, "Disability"
means a physical or mental disability that prevents or would
prevent the performance by Executive of his duties hereunder for
a continuous period of six months or longer. The determination
of Executive's Disability will be made by an independent
physician agreed to by the parties. If the parties are unable to
agree within ten (10) days after a request for designation by a
party, then the Company and the Executive shall each select a
physician, and the two (2) physicians selected shall select a
third physician. The three (3) physicians so selected shall make
a determination of the Executive's Disability, as determined by
at least two (2) of the three (3) physicians selected. Such
determination shall be final and binding on the parties hereto,
and shall be based on such competent medical evidence as shall be
presented to such physicians by Executive and/or the Company or
by any physician or group of physicians or other competent
medical experts employed by Executive and/or the Company to
advise such physicians.
(b) Termination by the Company for Cause. Executive's
employment may be terminated by the Company for Cause (as defined
below in this subsection (b)). In the event of a termination of
Executive's employment by the Company for Cause, Executive shall
be paid the termination benefits as provided in Section 8(f)(ii).
For purposes of this Agreement, "Cause" means (i) a material
breach by Executive of any provision of this Agreement; (ii) a
material violation by Executive of any Policy (as defined in
Section 14), resulting in material injury to the Company;
(iii) Executive's willful misconduct or gross negligence that has
caused or is reasonably expected to result in material injury to
the business, reputation or prospects of the
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Company or any of its Affiliates; (iv) Executive's material
fraud or misappropriation of funds; or (v) the commission by
Executive of a felony involving moral turpitude; provided that
no termination under clauses (i) or (ii) shall be effective
unless Company shall have given Executive notice of the event or
events constituting Cause and Executive shall have failed to cure
such event or events within thirty (30) business days after
receipt of such notice.
(c) Termination Without Cause. Executive's employment may be
terminated by the Company Without Cause (as defined below in this
subsection (c)) at any time. In the event of a termination of
Executive's employment by the Company Without Cause, the
Executive shall be paid the termination benefits as provided in
Section 8(f)(i). For purposes of this Agreement, a termination
"Without Cause" shall mean a termination of Executive's
employment by the Company other than due to Executive's death or
Disability as described in Section 8(a) and other than for Cause
as described in Section 8(b).
(d) Termination by Executive. Executive may resign from his
employment for any reason, including for Good Reason (as defined
below in this subsection (d)). In the event of a termination of
Executive's employment by Executive's resignation other than for
Good Reason, no termination benefits shall be payable to or in
respect of Executive except as provided in Section 8(f)(ii) and
in the event of a termination of Executive's employment by
Executive for Good Reason, no termination benefits shall be
payable to or in respect of Executive except as provided in
Section 8(f)(i). For purposes of this Agreement, a termination
of employment by Executive for "Good Reason" shall mean a
resignation by Executive from his employment with the Company
within one hundred eighty (180) days following the occurrence,
without Executive's consent, of any of the following events:
(i) a material diminution in the Executive's position, authority
or responsibilities; (ii) any involuntary relocation of the
location where Executive primarily performs his services; or
(iii) any other material breach by the Company of any material
provision of this Agreement; provided that the Executive shall
have given the Company notice of the event or events constituting
Good Reason and the Company shall have failed to cure such event
or events (to the extent capable of being cured) within thirty
(30) business days after receipt of such notice.
(e) Notice of Termination; Date of Termination.
(i) Notice of Termination. Any termination of Executive's
employment by the Company or by Executive (other than as a result
of Executive's death) shall be communicated by a written Notice
of Termination addressed to the other party to this Agreement. A
"Notice of Termination" shall mean a notice stating that
Executive or the Company, as the case may be, is electing to
terminate Executive's employment with the Company (and thereby
terminating the Employment Period), stating the proposed
effective date of such termination, indicating the specific
provision of this Section 8 under which such termination is being
effected and, if applicable, setting forth in reasonable detail
the circumstances claimed to provide the basis for such
termination. Any Notice of Termination given by an Executive
must specify an effective date of termination which is at least
thirty (30) days after the giving of the Notice of Termination.
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(ii) Date of Termination. The term "Date of Termination" shall
mean (i) if Executive's employment is terminated by his death,
the date of his death; and (ii) if Executive's employment is
terminated for any other reason, the effective date of
termination specified in such Notice of Termination. The
Employment Period shall expire on the Date of Termination.
(f) Payments Upon Certain Terminations.
(i) In the event of a termination of Executive's employment by
the Company Without Cause or by Executive's resignation from
employment for Good Reason during the Employment Period, the
Company shall pay to Executive (or, following his death, to
Executive's estate), within thirty (30) days of the Date of
Termination, (x) his Base Salary through the Date of Termination,
to the extent not previously paid; (y) the pro-rata amount of the
Annual Bonus (based on the amount paid for the previous year)
which is accrued through the date of termination; and
(z) reimbursement for any unreimbursed business expenses incurred
by Executive prior to the Date of Termination that are subject to
reimbursement pursuant to the terms hereof, and payment for paid
time off accrued as of the Date of Termination but unused (such
amounts under clauses (x), (y) and (z), collectively the "Accrued
Obligations"). In addition, in the event of any such termination
of Executive's employment, if Executive executes and delivers to
the Company a Release and Discharge of All Claims substantially
in the form approved by the Company, Executive (or, following his
death, Executive's estate) shall be entitled to the following
payments and benefits:
(A) the Executive's Base Salary (at the Base Salary being
paid on the Date of Termination), for the longer of: (x) the
remaining Employment Period or (y) one (1) year (the "Severance
Period"), payable in installments in accordance with the Company's
regular payroll policies for one year after the Date of Termination,
with the balance, if any, being paid pursuant to a lump sum payment
on the one year anniversary date of the Date of Termination; and
(B) the Executive's Annual Bonus (at the amount of the
Annual Bonus paid to the Executive for the year prior to the Date of
Termination) which would have been paid to the Executive had
Executive's employment continued for the Severance Period, duly
apportioned for any partial year, such amount to be payable to
Executive on the one year anniversary date of the Date of
Termination; and
(C) the Executive shall receive "Years of Service" credit
for the number of years comprising the Severance Period for purposes
of accruing the Executive's benefit under the Company's Executive
Retirement Plan and the Final Average Earnings thereunder for the
Severance Period shall be determined based on the Base Salary
being paid on the Date of Termination and the Annual Bonus paid
to the Executive for the year prior to the Date of Termination;
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(D) the Executive shall automatically vest in all employee
welfare and benefit plans in which the Executive was
participating as of the Date of Termination and such benefits
shall be paid to Executive in accordance with the terms of such
plans; and
(E) the Company shall provide outplacement services to
Executive for up to ninety (90) days.
Executive shall not have a duty to mitigate the costs
to the Company under this Section 8(f)(i), nor shall any payments
from the Company to Executive hereunder be reduced, offset or
canceled by any compensation or fees earned by (whether or not
paid currently) or offered to Executive during the remainder of
the fiscal year of the Company that includes the Date of
Termination by a subsequent employer or other Person (as defined
below in Section 18(k) below) for which Executive performs
services, including, but not limited to, consulting services.
(ii) If Executive's employment shall terminate upon his death or
if the Company shall terminate Executive's employment for Cause
or due to Executive's Disability or Executive shall resign from
his employment without Good Reason, in any such case during the
Employment Period, the Company shall pay to Executive (or, in the
event of Executive's death, to his estate) the Accrued
Obligations within thirty (30) days following the Date of
Termination.
(iii) Except as specifically set forth in this Section 8(f),
no termination benefits shall be payable to or in respect of
Executive's employment with the Company or its Affiliates.
(iv) The Company shall have the right to apply and set off
against the Accrued Obligations or any other amounts owing to
Executive hereunder, any amounts owing by the Executive to the
Company, whether pursuant to this Agreement or otherwise.
(g) Resignation upon Termination. Effective as of any Date of
Termination under this Section 8 or otherwise as of the date of
Executive's termination of employment with the Company, Executive
shall resign, in writing, from all Board memberships and other
positions then held by him, or to which he has been appointed,
designated or nominated, with the Company and its Affiliates.
9. Confidentiality.
(a) Executive acknowledges and agrees that the terms of this
Agreement, including all addendums and attachments hereto, are
confidential. Executive agrees not to disclose any information
contained in this Agreement, or the fact of this Agreement, to
anyone, other than to Executive's lawyer, financial advisor or
immediate family members. If Executive discloses any information
contained in this Agreement to his lawyer, financial advisor or
immediate family members as permitted herein, Executive agrees to
immediately tell each such
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individual that he or she must abide by the confidentiality
restrictions contained herein and keep such information
confidential as well.
(b) Executive agrees that during his employment with the Company
and thereafter, Executive will not, directly or indirectly
(i) disclose any Confidential Information to any Person (other
than, only with respect to the period that Executive is employed
by the Company, to an Executive of the Company who requires such
information to perform his or her duties for the Company); or
(ii) use any Confidential Information for Executive's own benefit
or the benefit of any third party. "Confidential Information"
means confidential, proprietary or commercially sensitive
information relating to (i) the Company or its Affiliates, or
members of their management or boards; or (ii) any third parties
who do business with the Company or its Affiliates, including
customers and suppliers. Confidential Information includes,
without limitation, marketing plans, business plans, financial
information and records, operation methods, personnel
information, drawings, designs, information regarding product
development, other commercial or business information and any
other information not available to the public generally. The
foregoing obligation shall not apply to any Confidential
Information that has been previously disclosed to the public or
is in the public domain (other than by reason of a breach of
Executive's obligations to hold such Confidential Information
confidential). If Executive is required or requested by a court
or governmental agency to disclose Confidential Information,
Executive must notify the General Counsel of the Company in
writing of such disclosure obligation or request no later than
three business days after Executive learns of such obligation or
request, and permit the Company to take all lawful steps it deems
appropriate to prevent or limit the required disclosure.
10. Partial Restraint on Post-termination Competition.
(a) Definitions. For the purposes of this Section 10, the
following definitions shall apply:
"Competitor" means any business, individual,
partnership, joint venture, association, firm, corporation or
other entity, other than the Company and its affiliates, that is
engaging or actively planning to engage, wholly or partly, in
activities ("Competitive Activities") that directly compete or
would compete with the Company or its affiliates in the Company
Activities (as hereinafter defined) in the Territory (as
hereinafter defined).
"Competitive Position" means (i) the direct or
indirect ownership or control of all or any portion of a
Competitor; or (ii) any employment or independent contractor
arrangement with any Competitor whereby Executive will serve such
Competitor in any managerial, sales, executive or consultant
capacity with respect to Competitive Activities in the Territory.
"The Company Activities" means the businesses of
animal production and processing, meat processing (including any
further processed meats) and fast food restaurants and any
business acquired or commenced by the Company after the
Commencement Date which has sales in excess of $100 million.
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"Non-compete Period" or "Non-solicitation Period"
means the period beginning with the Commencement Date and ending
on: (x) the two year anniversary date of the Date of Termination
with respect to any termination of employment by the Executive
pursuant to Section 8(d) above by Executive's resignation other
than for Good Reason; or (y) the one (1) year anniversary date of
the Date of Termination with respect to any other termination of
employment hereunder.
"Territory" means the entire United States of
America, which Executive acknowledges and agrees are the
geographic areas in which the Company engages in the Company
Activities.
(b) Non-competition.
(i) The parties hereto acknowledge that Executive, by virtue of
his position with and responsibilities to the Company, is
engaging and is expected to continue to engage during the Term in
the Company Activities throughout the Territory and has executive
management responsibilities with respect to the Company
responsibilities which extend throughout the Territory.
Executive acknowledges that to protect adequately the interest of
the Company in the business of the Company it is essential that
any non-compete covenant with respect thereto cover all the
Company Activities and the entire Territory.
(ii) Executive hereby agrees that, during the Non-compete
Period, Executive will not, either directly or indirectly, alone or in
conjunction with any other party, accept or enter into a
Competitive Position. Executive shall notify the Company
promptly in writing if Executive receives an offer of a
Competitive Position during the Non-compete Period, and such
notice shall describe all material terms of such offer.
Nothing contained in this Section 10 shall prohibit
Executive from (i) acquiring not more than five percent (5%) of
any company whose common stock is publicly traded on a national
securities exchange or in the over-the-counter market; or
(ii) owning less than a controlling interest in any fast food
restaurant or restaurants, so long as Executive does not
participate in the management of the operation in manner which
materially detracts from his ability to perform his obligations
hereunder.
(c) Severability. If a judicial or arbitral determination is
made that any of the provisions of this Section 10 constitutes an
unreasonable or otherwise unenforceable restriction against
Executive the provisions of this Section 10 shall be rendered
void only to the extent that such judicial or arbitral
determination finds such provisions to be unreasonable or
otherwise unenforceable with respect to Executive. In this
regard, Executive hereby agrees that any judicial or arbitral
authority construing this Agreement shall sever or reform any
portion of the Territory, any prohibited business activity or any
time period from the coverage of this Agreement to allow the
covenants in this Section 10 to be enforced to the maximum extent
authorized by law, and shall then enforce the covenants in this
Section 10 as so severed or reformed.
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(d) Reasonable Restrictions. Executive acknowledges that the
restrictions and covenants contained in this Agreement are
reasonably necessary to protect the goodwill and legitimate
business interests of the Company, are not overbroad, overlong,
or unfair (including in duration and scope), and will not curtail
Executive's ability to earn a livelihood upon Executive's
termination of employment with the Company.
11. Non-Solicitation of Employees and Customers. During the
period of Executive's employment with the Company and for the one-
year period following the termination of his employment,
Executive shall not, directly or indirectly, by himself or
through any third party, whether on Executive's own behalf or on
behalf of any other Person or entity, (i) solicit or endeavor to
solicit, employ or retain; (ii) interfere with the relationship
of the Company or any of its Affiliates with; or (iii) attempt to
establish a business relationship with (A) any natural person who
is or was (during Executive's employment with the Company) an
employee or engaged by the Company or any Affiliate to provide
services to it, or (B) any customer of the Company or any of its
Affiliates who was a customer at any time during which Executive
was an employee of the Company.
12. Work Product. Executive agrees that all of Executive's work
product (created solely or jointly with others, and including any
intellectual property or moral rights in such work product),
given, disclosed, created, developed or prepared in connection
with Executive's employment with the Company, whether ensuing
during or after Executive's employment with the Company ("Work
Product") shall exclusively vest in and be the sole and exclusive
property of the Company and shall constitute "work made for hire"
(as that term is defined under Section 101 of the U.S. Copyright
Act, 17 U.S.C. section 101) with the Company being the person for
whom the work was prepared. In the event that any such Work
Product is deemed not to be a "work made for hire" or does not
vest by operation of law in the Company, Executive hereby
irrevocably assigns, transfers and conveys to the Company,
exclusively and perpetually, all right, title and interest which
Executive may have or acquire in and to such Work Product
throughout the world, including without limitation any copyrights
and patents, and the right to secure registrations, renewals,
reissues, and extensions thereof. The Company and its Affiliates
or their designees shall have the exclusive right to make full
and complete use of, and make changes to all Work Product
without restrictions or liabilities of any kind, and Executive
shall not have the right to use any such materials, other than
within the legitimate scope and purpose of Executive's
employment with the Company. Executive shall promptly
disclose to the Company the creation or existence of any Work
Product and shall take whatever additional lawful action may be
necessary, and sign whatever documents the Company may require,
in order to secure and vest in the Company or its designee all
right, title and interest in and to all Work Product and any
intellectual property rights therein (including full cooperation
in support of any Company applications for patents and copyright
or trademark registrations).
13. Return of Company Property. In the event of termination of
Executive's employment for any reason, Executive shall return to
the Company all of the property of the Company and its
Affiliates, including without limitation all materials or
documents containing or pertaining to Confidential Information,
and including without limitation, any company car, all computers
(including laptops), cell phones, keys, PDAs, Blackberries,
credit cards, facsimile machines, card access to any Company
building, customer lists, computer disks, reports, files, e-
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mails, work papers, Work Product, documents, memoranda, records
and software, computer access codes or disks and instructional
manuals, internal policies, and other similar materials or
documents which Executive used, received or prepared, helped
prepare or supervised the preparation of in connection with
Executive's employment with the Company. Executive agrees not to
retain any copies, duplicates, reproductions or excerpts of such
material or documents.
14. Compliance With Company Policies. During Executive's
employment with the Company, Executive shall be governed by and
be subject to, and Executive hereby agrees to comply with, all
Company policies applicable to employees generally or to
employees at Executive's grade level, including without
limitation, the Company's Code of Business Ethics and Conduct, in
each case, as any such policies may be amended from time to time
in the Company's sole discretion (collectively, the "Policies").
15. Injunctive Relief with Respect to Covenants; Forum, Venue
and Jurisdiction. Executive acknowledges and agrees that a
breach by Executive of any of Section 9, 10, 11, 12, 13 or 14 is
a material breach of this Agreement and that remedies at law may
be inadequate to protect the Company and its Affiliates in the
event of such breach, and, without prejudice to any other rights
and remedies otherwise available to the Company, Executive agrees
to the granting of injunctive relief in the Company's favor in
connection with any such breach or violation without proof of
irreparable harm, plus attorneys' fees and costs to enforce these
provisions. Executive further acknowledges and agrees that the
Company's obligations to pay Executive any amount or provide
Executive with any benefit or right pursuant to Section 8 is
subject to Executive's compliance with Executive's obligations
under Sections 9 through 14 inclusive, and that in the event of a
breach by Executive of any of Section 9, 10, 11, 12, 13 or 14,
the Company shall immediately cease paying such benefits and
Executive shall be obligated to immediately repay to the Company
all amounts theretofore paid to Executive pursuant to Section 8.
In addition, if not repaid, the Company shall have the right to
set off from any amounts otherwise due to Executive any amounts
previously paid pursuant to Section 8(f) (other than the Accrued
Obligations). Executive further agrees that the foregoing is
appropriate for any such breach inasmuch as actual damages cannot
be readily calculated, the amount is fair and reasonable under
the circumstances, and the Company would suffer irreparable harm
if any of these Sections were breached. All disputes not
relating to any request or application for injunctive relief in
accordance with this Section 15 shall be resolved by arbitration
in accordance with Section 18(b).
16. Assumption of Agreement. The Company shall require any
Successor thereto, by agreement in form and substance reasonably
satisfactory to Executive, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain
such agreement prior to the effectiveness of any such succession
shall be a breach of this Agreement and shall entitle Executive
to compensation from the Company in the same amount and on the
same terms as Executive would be entitled hereunder if the
Company had terminated Executive's employment Without Cause as
described in Section 8, except that for purposes of implementing
the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination.
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17. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject
matter hereof. All prior correspondence and proposals
(including, but not limited to, summaries of proposed terms) and
all prior promises, representations, understandings, arrangements
and agreements relating to such subject matter are merged herein
and superseded hereby.
18. Miscellaneous.
(a) Binding Effect; Assignment. This Agreement shall be binding
on and inure to the benefit of the Company and its Successors and
permitted assigns. This Agreement shall also be binding on and
inure to the benefit of Executive and his heirs, executors,
administrators and legal representatives. This Agreement shall
not be assignable by any party hereto without the prior written
consent of the other parties hereto. The Company may effect such
an assignment without prior written approval of Executive upon
the transfer of all or substantially all of its business and/or
assets (by whatever means), provided that the Successor to the
Company shall expressly assume and agree to perform this
Agreement in accordance with the provisions of Section 16.
(b) Arbitration. The Company and Executive agree that any
dispute or controversy arising under or in connection with this
Agreement shall be resolved by final and binding arbitration
before the American Arbitration Association ("AAA"). The
arbitration shall be conducted in accordance with AAA's National
Rules for the Resolution of Employment Disputes then in effect at
the time of the arbitration. The arbitration shall be held in
the general Kansas City, Kansas metropolitan area. The dispute
shall be heard and determined by one arbitrator selected from a
list of arbitrators who are members of AAA's Regional Employment
Dispute Resolution roster. If the parties cannot agree upon a
mutually acceptable arbitrator from the list, each party shall
number the names in order of preference and return the list to
AAA within ten (10) days from the date of the list. A party may
strike a name from the list only for good cause. The arbitrator
receiving the highest ranking by the parties shall be selected.
Depositions, if permitted by the arbitrator, shall be limited to
a maximum of two (2) per party and to a maximum of four (4) hours
in duration. The arbitration shall not impair either party's
right to request injunctive or other equitable relief in
accordance with Section 15 of this Agreement.
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Kansas
without reference to principles of conflicts of laws.
(d) Taxes. The Company may withhold from any payments made
under this Agreement all applicable taxes, including, but not
limited to, income, employment and social insurance taxes, as
shall be required by law.
(e) Amendments. No provision of this Agreement may be modified,
waived or discharged unless such modification, waiver or
discharge is approved by the Company and is agreed to in writing
by Executive. No waiver by any party hereto at any time of any
breach by any other party hereto of, or compliance with, any
condition or provision of this Agreement to be
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performed by such other party shall be deemed a waiver of similar
or dissimilar provisions or conditions at the same or at
any prior or subsequent time. No waiver of any provision of this
Agreement shall be implied from any course of dealing between or
among the parties hereto or from any failure by any party hereto
to assert its rights hereunder on any occasion or series of
occasions.
(f) Severability. In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal
or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall
not be affected thereby.
(g) Notices. Any notice or other communication required or
permitted to be delivered under this Agreement shall be (i) in
writing; (ii) delivered personally, by courier service or by
certified or registered mail, first-class postage prepaid and
return receipt requested; (iii) deemed to have been received on
the date of delivery or, if mailed, on the third business day
after the mailing thereof; and (iv) addressed as follows (or to
such other address as the party entitled to notice shall
hereafter designate in accordance with the terms hereof):
(i) If to the Company, to it at:
Seaboard Corporation
0000 Xxxx 00xx Xxxxxx
Xxxxxxx Xxxxxxx, Xxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) if to Executive, to his residential address as currently on
file with the Company.
(h) Voluntary Agreement; No Conflicts. Executive represents
that he is entering into this Agreement voluntarily and that
Executive's employment hereunder and compliance with the terms
and conditions of this Agreement will not conflict with or result
in the breach by Executive of any agreement to which he is a
party or by which he or his properties or assets may be bound.
(i) Counterparts/Facsimile. This Agreement may be executed in
counterparts (including by facsimile), each of which shall be
deemed an original and all of which together shall constitute one
and the same instrument.
(j) Headings. The section and other headings contained in this
Agreement are for the convenience of the parties only and are not
intended to be a part hereof or to affect the meaning or
interpretation hereof.
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(k) Certain other Definitions.
"Affiliate" with respect to any Person, means any
other Person that, directly or indirectly through one or more
intermediaries, Controls, is Controlled by, or is under common
Control with the first Person, including, but not limited to, a
Subsidiary of any such Person.
"Control" (including, with correlative meanings,
the terms "Controlling," "Controlled by" and "under common
Control with"): with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by
contract or otherwise.
"Person" any natural person, firm, partnership,
limited liability company, association, corporation, company,
trust, business trust, governmental authority or other entity.
"Subsidiary" with respect to any Person, each
corporation or other Person in which the first Person owns or
Controls, directly or indirectly, capital stock or other
ownership interests representing fifty percent (50%) or more of
the combined voting power of the outstanding voting stock or
other ownership interests of such corporation or other Person.
"Successor" of a Person means a Person that
succeeds to the first Person's assets and liabilities by merger,
liquidation, dissolution or otherwise by operation of law, or a
Person to which all or substantially all the assets and/or
business of the first Person are transferred.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the Company has duly executed this
Agreement by its authorized representatives, and Executive has
hereunto set his hand, in each case effective as of the date
first above written.
THIS AGREEMENT CONTAINS A PROVISION REQUIRING THAT ARBITRATION
PURSUANT TO THE AMERICAN ARBITRATION ASSOCIATION NATIONAL RULES
FOR THE RESILUTION OF EMPLOYMENT DISPUTES IS THE EXCLUSIVE MEANS
FOR RESOLVING ANY DISPUTE BETWEEN THE PARTIES HERETO AS TO THIS
AGREEMENT.
SEABOARD FARMS, INC.
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Vice President
Executive:
By: /s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
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