Employment Agreement - Seminis Vegetable Seeds Inc. and Eugenio Najera Solorzano
INDIVIDUAL EMPLOYMENT AGREEMENT THE ("AGREEMENT"). ENTERED INTO BY AND BETWEEN
SEMINIS VEGETABLE SEEDS INC., HEREINAFTER REFERRED TO AS "EMPLOYER", REPRESENTED
BY CHIEF EXECUTIVE OFFICER AND CHAIRMAN OF THE BOARD MR. ALFONSO ROMO GARZA, AND
MR. EUGENIO NAJERA SOLORZANO, HEREINAFTER REFERRED TO AS THE "EMPLOYEE", IN
ACCORDANCE WITH THE FOLLOWING DECLARATIONS AND CLAUSED:
DECLARATIONS
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 President and Chief
Operating Officer (COO), 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 May 16th, 1947, that he is married, that his mailing
address is 717 Crestview Avenue Camarillo, California, U.S.A., and that
he holds the degree of Mechanical Administrative Engineering, issued by
the Instituto Tecnologico de Monterrey, in Nuevo Leon, Mexico and an MBA
degree from University of Texas at Austin.
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 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 adversedly 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 President and Chief Operating Officer (COO) at the offices of
Employer, located at Oxnard, California, U.S.A., which may be unilaterally
modified to the city and country the Employee chooses at any time, as long as
said offices are part of the company.
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 February 15, 1989.
THIRD. This Agreement shall enter into effect as of August 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 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$550,000 (five hundred fifty 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 -Monterrey, Mexico- 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
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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 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 year.
b) As performance bonus, an amount equivalent to at least 75% 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 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 $7,700.0 (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 Employee's responsibilities in his position as
President and Chief Operating Officer (COO), 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
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 May 9th, 2001.
EMPLOYER EMPLOYEE
/s/ Alfonso Romo Garza /s/ Eugenio Najera Solorzano
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SEMINIS VEGETABLE SEEDS, INC. MR. EUGENIO NAJERA SOLORZANO
WITNESS WITNESS
/s/ Bruno Ferrari /s/ Steve Witt
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BRUNO FERRARI STEVE WITT