Employment Agreement - Seminis Vegetable Seeds Inc. and Bruno Ferrari Garcia de Alba
INDIVIDUAL EMPLOYMENT AGREEMENT THE ("AGREEMENT"). ENTERED INTO BY AND BETWEEN
SEMINIS VEGETABLE SEEDS INC., HEREINAFTER REFERRED TO AS "EMPLOYER", REPRESENTED
BY CHIEF OPERATING OFFICER AND PRESIDENT OF THE BOARD MR. EUGENIO NAJERA
SOLORZANO, AND MR. BRUNO FERRARI GARCIA DE ALBA, HEREINAFTER REFERRED TO AS THE
"EMPLOYEE", IN ACCORDANCE WITH THE FOLLOWING DECLARATIONS AND CLAUSES:
D E C L A R A T I O N S
I. The Employer declares:
1. That it is a corporation incorporated in accordance with the laws of
California, U.S.A., engaged in the production and distribution of seeds,
and having, its domicile at 2700 Camino del Sol, Oxnard, California,
U.S.A.; and
2. That it desires to hire the services of a person with the experience and
capability necessary to hold the position of Senior Executive
Vice-president of Europe Middle East and Africa (EMEA), which position
has the status of a "position of confidence" within the business of
Employer.
II. The Employee declares:
1. That his name is as herein above set forth, that he is a Mexican
national, born on October 4th, 1961, that he is married, that his
residence is 12684 McDonald Drive, Ojai, California, U.S.A., and that he
holds a degree of law, issued by the Escuela Libre de Derecho of Mexico
City, Mexico;
2. That he is familiar with the services he is to perform for Employer and
has the knowledge and experience necessary to perform the services that
Employer requires pursuant to the terms and conditions of this Agreement,
and that he intends to reside in EMEA, in the country of his choice, as
of and during his employment by Employer;
3. That neither the execution of this Agreement nor the performance of his
obligations hereunder will conflict with or result in any breach of, or
constitute a violation of or default under any applicable law, or other
instrument or contract to which Employee is a party or by which he may be
bound.
4. No lawsuit or proceeding is pending or, to the knowledge of Employee,
threatened against Employee, which if determined adversely to Employee,
may materially and aversely affect his employment condition or the
consummation by Employee of any obligation hereunder. No action or
proceeding has been instituted, and no order, decree, injunction or
judgement of any kind from any governmental authority or tribunal has
been issued, to avoid, restrain or in any other manner prevent Employee
from performing the services to be rendered under this Agreement; and
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5. That each of his declarations contained herein are true and correct.
In consideration of the foregoing, the parties agree as follows:
C L A U S E S
FIRST. Employee is hereby hired to perform services for Employer in the
position of Senior Executive Vice-president for Europe, Middle East and
Africa (EMEA) at the offices located at EMEA, in the city and country the
Employee chooses, which may be unilaterally modified to the city and
country the Employee chooses at any time, as long as said offices remain
in EMEA.
SECOND. For the purposes of this Agreement, the Employer acknowledges
that the Employee's seniority rights against the Employer will be
considered in existence from April 15, 1989.
THIRD. This Agreement shall enter into effect as of November 1st, 2000
and shall continue in effect as set forth in this Clause. This Agreement
may only be modified, suspended, rescinded or terminated under the
circumstances and in accordance with the requirements set forth in the
laws of the Employee's labor country of residence in EMEA as long as
these are not contrary to the benefits that he is entitled to in Mexican
labor laws for all purposes of disagreement and specifically in the case
of termination, as well as in accordance with the employment policies of
Employer and this Agreement. Notwithstanding this, if the Employer's
corporate control changes in any matter whatsoever vis a vis the one
currently existing, the Employee may unilaterally terminate his labor
relationship with the Employer and the Employer will be obliged to pay
the Employee an amount equivalent to two years of the Employee's salary
(base plus bonus), as well as the amounts the Employee is entitled to in
accordance with Clauses Sixth and Ninth of this Agreement. Also, any
rights on behalf of the Employee set forth under said Clause Sixth, and
in particular under its section c), shall remain in effect for two years
after the execution date of this Agreement. If Employer suspends,
rescinds, or terminates this Agreement before its second anniversary,
Employer will still be obliged to cover the Employee's full salary for
the period comprehended between the date of termination and the second
anniversary of effectiveness of this Agreement, regardless of the
subsistence of the Employee's payment rights against the Employer to any
amounts arising from the set forth under Clause Sixth, a), b), c), and
d), and under Clause Ninth of this Agreement. In any event, any payments
and rights on behalf of Employee described under section c) of Clause
Sixth will also remain in effect for the first two years after the
execution of this Agreement. This Agreement will be in force for a
mandatory period of 2 (two) years as of the date hereof. After this first
period of 2 (two) years, this Agreement will be
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automatically renewed, at least under its same conditions and without prejudice
to the Employee's rights under section a) of Clause Sixth, for additional
periods of 1 (one) year, unless it is terminated by any of the parties with a
written notice sent to the other within a period not less than 90 (ninety)
calendar days prior to the date of termination of each period.
FOURTH. Beginning on the date on which this Agreement enters into effect,
Employee shall, pursuant to the instructions and guidelines received from
Employer, perform services related to his management position, among other
services and duties which may be notified to the Employee by Employer from time
to time. Employee shall perform such services under the direction of the
representatives of Employer or other persons designated by Employer, and shall
comply with all policies, rules, regulations and other provisions contained in
the manuals or codes issued by Employer, which shall be considered to be part of
this Agreement.
The parties agree that the general and specific duties of Employee, described in
this Clause, are duties requiring the Employer to place a high level of
confidence and responsibility in the Employee and as such constitutes "duties of
confidence". Employee shall attend those duties which are related to the
services Employee shall render hereunder. Both parties acknowledge that due to
the nature of this Agreement they are obliged to maintain strict confidentiality
in connection with its terms and will not disclose any information related
thereof except if they are legally obliged to do so.
FIFTH. Employee shall be expected to work during normal working hours of
Employer and for a minimum of 40 (forty) hours per week, in the understanding
that, as a consequence of the Employee's responsibilities hereunder, the
Employee will frequently travel to and from different destinations under his
area of responsibility. During working hours, Employee may leave the Employer's
offices as needed to perform his responsibilities arising out of this Agreement,
including duties related to his performance of management and sales services.
Notwithstanding the foregoing working schedule, Employee shall perform the
services for Employer during the necessary hours in order to comply with the
high level of responsibilities assigned to him, in accordance with this
Agreement, it being understood that Employee shall not be entitled to receive
any amount for overtime unless Employee obtains the specific and prior written
agreement of Employer.
SIXTH. As payment for the Employee's services, Employee shall, subject to the
conditions stated below, receive the following amounts:
a) As base salary, an amount of US$420,000 (four hundred twenty thousand
United States of America dollars) per year, payable every fifteen
days, minus any applicable withholdings or deductions required by the
applicable law. The referred base salary will be proportionally
increased if there is a difference in the cost of living between the
Employee's current labor residence -- California -- and the
Employee's future labor country of residence. The increase in the
mentioned amount will take into consideration, as costs of living,
housing, schools, and the price of goods generally consumed by
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persons with a position similar to that of the Employee's. The
monthly payment shall be made to Employee on terms mutually agreed
between the parties. The payment mentioned herein includes payment
corresponding to weekends and legal holidays. This and any other
payments should be transferred to the account determined by the
Employee. The base salary will be increased annually, in the month of
January, according to the highest percentile increase of salaries
granted by Employer on behalf of any other employee for the immediate
following year.
b) As performance bonus, an amount equivalent to at least 65% of the
Employee's base salary will be paid if the Employee achieves the
objectives that have been determined for each fiscal year by the
Employer.
c) In order for the Employee not to reduce his current standard of
living, Employer will acquire the obligation to pay necessary
investments and expenses of Employee related to the purchase or rent
(whichever is more cost effective for the company), of an appropriate
house at least similar to the one in which the Employee currently
lives, school tuition for the Employee's children in the school(s) of
his choice; acquisition of two cars appropriate to the Employee's
position including cost of the necessary maintenance; rights of a
family membership to a social-sport club of the employee's preference
and a life and medical insurance coverage for himself and his
dependants, equivalent to those granted to the Employee by his former
Employer. In any event, the life insurance coverage may not be less
than the equivalent of 24 (twenty-four) months of the Employee's
salary if he dies of a natural cause and 48 (forty eight) months of
base salary if the death occurs accidentally. In the case of the
medical coverage, it will cover up to US$200,000 (two hundred
thousand United States of America dollars) for each event.
d) A stock option plan in accordance with market standards and the
Employer's policies in existence and created on behalf of the
Employer's employees holding the same rank and position as the
Employee. If this Agreement is terminated by Employer pursuant to
Clause Third, the Employee will have the option to exercise any
vesting rights he may have over stock for which he exercised this
option immediately after the termination of this Agreement.
e) Notwithstanding anything to the contrary in this agreement, if the
Employee, at any time after the first two years decides to retire,
ending his labor relationship with the Employer, the Employer will be
obligated to pay the Employee and an amount equivalent to two years
of the Employees total salary (base and bonus), as well as the amount
the Employee is entitle in the other sections of this Clause and
Clause Ninth.
SEVENTH. Employee shall be required to sign a receipt for any payment of the
base salary (and overtime wages, if any) received, it being understood that the
signature of Employee on such receipt shall constitute Employee's agreement that
the amount paid represents a total payment of any base salary (or overtime
wages, if any) due to Employee as of such date. If Employee desires to request
any clarification to the amount of any payment, such clarification must be made
at the time of Employee's receipt of the
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payment in question, and no claim shall be permitted once the
corresponding receipt has been signed.
EIGHT. Employee shall be entitled to receive from Employer all benefits
which are required to be provided to Employee in accordance with the laws
of the Employee's country of residence, including official holidays,
pension plan, vacation, [vacation bonus, Christmas bonus and profit
sharing], if applicable. The Employer will pay the Employee a net amount
of $7,700.00 (seven thousand and seven hundred United States of America
dollars) a year for vacation expenses. Employer and Employee shall agree
on the dates in which Employee shall take his vacation, it being agreed
that such dates shall be determined so as to avoid disruption to
Employer's operations.
NINTH. Employee acknowledged that one of the Employer's most important
assets are its intellectual property rights, patents, copyrights, trade
secrets and other rights Employer holds or may hold in the future,
related to intellectual property, industrial property, industrial patents
and trademarks. Therefore, Employee agrees not to disclose to third
parties or use for Employee's own benefit any trade secrets or other
confidential information of Employer, as well as any information Employee
obtains arising from any of the areas mentioned in this Clause and shall
return to Employer, when Employer deems necessary, all information, data,
documents, literature and catalogues of a confidential nature related to
the operations of Employer with the exception of those which are required
for the fulfillment of Employee's responsibilities in his position as
Senior Executive Vice-president for Europe, Middle East, and Africa
(EMEA), such that are necessary for negotiations carried out among his
duties and public relations on behalf of the company. Additionally, once
this Agreement is terminated, the Employee agrees not to disclose any of
Employer's relevant information to third parties and agrees not to hold a
position with any of Employer's competitors which bares identical areas
of responsibility to those comprehended by this Agreement within three
years after finishing his labor relationship with the Employer. In
exchange for assuming the non-competition obligation contained herein,
the Employee will receive from Employer a "severance package" equivalent
to two years of the Employee's base salary, plus the equivalent
percentage resulted from the total sum of bonuses obtained by the
Employee in the last two years, an amount which has to be paid within the
three months following the termination of this Agreement. This severance
package will be paid to the Employee, not withstanding the cause of
termination of this Agreement.
Any failure by Employee to comply with the obligations set forth in this
clause in reference to the Intellectual Property rights and trade
secrets, shall be cause for immediate dismissal of Employee and the
termination, without liability, of this Agreement, in accordance with the
laws of the state of California, U.S.A., and without prejudice to any
other cause of action Employer may be entitled to exercise against
Employee.
TENTH. Employer shall provide Employee with training, in accordance its
training programs.
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ELEVENTH. This Agreement will be governed and construed in accordance with the
laws of the Employee's country of labor residence, but never less than what is
establish in the Mexican labor laws, whose tribunals will have jurisdiction to
solve any controversy arising from its interpretation and application, however,
any issue arising with the Intellectual Property rights and trade secrets,
under Clause Ninth of this Agreement will be governed and construed in
accordance with the laws of the state of California, U.S.A.
TWELFTH. Employer will be solely responsible to make any and all notices of this
Agreement required by applicable law.
Both parties having read this Agreement sign it in duplicate, in Oxnard,
California, on June 1st, 2001.
EMPLOYER EMPLOYEE
/s/ EUGENIO NAJERA SOLORZANO /s/ BRUNO FERRARI GARCIA DE ALBA
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SEMINIS VEGETABLE SEEDS, INC. BRUNO FERRARI GARCIA DE ALBA
WITNESS
/s/ STEVE WITT
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STEVE WITT