Employment Agreement - Seminis Vegetable Seeds Inc. and Oscar Javier Velasco Martinez
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. OSCAR JAVIER VELASCO MARTINEZ, 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 Vice-president
for Asia, 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 July 13th 1954, that he is married, that his
residence is 269 Camino Toluca, Camarillo, California, U.S.A., and
that he holds a degree of Mechanical Administrative Engineer, issued
by the Instituto Tecnologico y de Estudios Superiores of Monterrey,
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 Asia, 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:
CLAUSES
FIRST. Employee is hereby hired to perform services for Employer in the
position of Senior Vice-president for Asia at the offices located at Asia, 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 Asia.
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 May 1st, 1999.
THIRD. This Agreement shall enter into effect as of June 2001 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 Asia 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
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,
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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$330,000 (three hundred thirty 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 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
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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 expense 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; acquisition of one car appropriate to the Employee's position
including cost of the necessary maintenance; rights of a personal
membership to a social-sport club of the employee's preference and a
life and medical insurance coverage for himself, 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 payment in question, and no claim
shall be permitted once the corresponding receipt has been signed.
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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 Vice-president for Asia, 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.
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
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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 May 9th, 2001.
EMPLOYER EMPLOYEE
/s/ Eugenio Najera Solorzano /s/ Oscar Javier Velasco Martinez
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SEMINIS VEGETABLE SEEDS, INC. OSCAR JAVIER VELASCO MARTINEZ
WITNESS WITNESS
/s/ Bruno Ferrari /s/ Steve Witt
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BRUNO FERRARI STEVE WITT