Exhibit 10.17
SEPARATION
AGREEMENT
This
SEPARATION AGREEMENT (this “ Agreement ”) is
dated as of January 22, 2005, and is entered into by and among
Seminis, Inc., a Delaware corporation (the “ Company
”), SVS Mexicana, S.A. de C.V. (the “ Mexican
Subsidiary ”) and Bernardo Jimenez (“
Executive ”).
WHEREAS,
Executive and the Company are parties to an employment agreement
between Executive and Seminis Merger Corp. (which subsequently
merged with and into the Company), dated May 30, 2003 (the
“ Employment Agreement ”), pursuant to which
Executive serves as Executive Senior Vice President and Chief
Financial Officer of the Company; and
WHEREAS,
simultaneously with the execution and delivery of this Agreement,
Monsanto Company (“ Monsanto ”), Monsanto Sub,
Inc., a direct subsidiary of Monsanto (“ Merger Sub
”), and the Company are entering into an Agreement and Plan
of Merger (the “ Merger Agreement ”), pursuant
to which Merger Sub is to merge with and into the Company (the
“ Merger ”); and
WHEREAS,
in connection with the Merger, the Company and Executive have
agreed that Executive’s employment will be terminated as of
the Closing Date (as such term defined in the Merger Agreement);
and
WHEREAS,
subject to the terms and conditions contained herein, Executive and
the Company have mutually agreed to embody in this Agreement the
terms and conditions applicable to Executive’s termination of
employment by the Company.
NOW,
THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are mutually acknowledged, the
Company and Executive hereby agree as follows:
Section 1. Termination
Date . Executive’s termination of employment with the
Company shall be effective on the Closing Date. Effective on the
Closing Date, Executive hereby resigns from any and all
directorships, committee memberships or any other positions he
holds with the Company or any of its affiliates.
Section 2. Company
Property . On the Closing Date, Executive shall return to the
Company all Company-owned property in his possession on such date,
including, but not limited to, all Company credit cards, hand
books, work manuals or procedure books, client or customer
documents, tools, computers, or other Company equipment and/or
materials maintained by Executive.
Section 3. Termination
Benefits . Subject to Section 5 below:
(a) Subject
to Executive’s execution and delivery of the Release (as
defined in Section 5 below), on the Closing Date, the Company
shall pay Executive a lump-sum payment equal to $3,332,131, in
satisfaction of the Company’s cash obligations under
Section 6.1 of the Employment Agreement.
(b) In
addition to the cash payment provided in subsection (a) above,
the Company shall provide to Executive and his covered dependents
continued coverage under any employee medical plans or programs
provided to Executive and his covered dependents pursuant to
Section 4.1 of the Employment Agreement until the earlier of
the third anniversary of the Closing Date or the date on which
Executive becomes entitled to receive at least comparable medical
coverage under another employer’s medical benefit program;
provided, however, that Executive shall continue to be required to
pay any applicable premiums of a participating employee in such
plans and programs.
(c) The
Company shall pay the expenses of Executive in connection with his
relocation to Mexico up to $25,000.
Section 4. Full Settlement;
Compensation and Benefit Plans . The Company shall pay to
Executive all amounts that it is required to pay to or with respect
to Executive under the terms of the Merger Agreement, including,
without limitation, amounts described in Sections 3.10 and 6.8
of the Merger Agreement. Except as provided in the last sentence of
this Section 4, the amounts paid in accordance with the
preceding sentence and the amounts paid under Section 3 above
shall constitute full settlement and satisfaction with respect to
all obligations and liabilities of the Company and its affiliates,
officers, directors, trustees, employees, shareholders,
representatives and/or agents to Executive with respect to his
employment with the Company, including, without limitation, all
claims for wages, salary, vacation pay, draws, incentive pay,
bonuses, stock (other than stock owned by Executive on the date of
this Agreement) and stock options, commissions, severance pay and
any and all other forms of compensation or benefits. Except as
otherwise specifically provided in this Agreement, by law or
pursuant to the express provisions of any Company employee benefit
plan, Executive’s participation in all employee benefit plans
and executive compensation plans and practices of the Company shall
terminate on the Closing Date and, without duplicating amounts
included in the payment made under Section 3 above, Executive
shall be entitled to receive any benefits or rights provided to a
terminating executive in accordance with the terms of any such
plan.
Section 5. Release of
Claims . In consideration of the payments provided in
Section 3 above, on the Closing Date, Executive shall execute
the release agreement substantially in the form attached hereto as
Exhibit A (the “Release ”).
Section 6. Taxes . The
payments due to Executive under this Agreement (other than pursuant
to Section 9 hereof) shall be subject to reduction to satisfy
all applicable Federal, state and local withholding tax
obligations.
Section 7. Non-Admission
. Executive expressly acknowledges that this Agreement does not
constitute an admission by the Company of any violation of any
employment law, regulation, ordinance, or administrative procedure,
or any other federal, state, or local law, common law, regulation
or ordinance relating to Executive’s employment or
termination of employment.
Section 8. Continuing
Obligations of Executive . The provisions of both
(a) Section 12 (other than Sections 12.3 and 12.4) of the
Employment Agreement, and (b) the
-2-
Noncompetition and
Nonsolicitation Agreement, executed by Executive on a date even
herewith, shall continue to survive in accordance with the terms
thereof.
Section 9. Consulting
Appointment .
(a)
Consulting Period . As of the Closing Date, the Mexican
Subsidiary shall appoint Executive, and Executive shall serve the
Mexican Subsidiary, in the capacity of a consultant to the business
of the Mexican Subsidiary and its affiliates. The term of
Executive’s appointment shall commence on Closing Date and
shall terminate on the fifteen (15) month anniversary of the
Closing Date (the “ Consulting Period ”).
(b)
Consulting Services .
(i) During the Consulting Period,
Executive shall act as a consultant and render his assistance and
participation, giving at all times the full benefit of his
knowledge, expertise, technical skill and ingenuity, in all matters
involved in or relating to the business of the Mexican Subsidiary
(the “ Consulting Services ”). During the
Consulting Period, consistent with his independent contractor
status, Executive shall retain control over the provision of the
Consulting Services.
(ii) During the first three
(3) months of the Consulting Period, Executive shall devote
his full business time to providing the Consulting Services, and in
consideration of such services, the Mexican Subsidiary shall pay
Executive an aggregate amount equal to $300,000, payable in a lump
sum on the Closing Date. Thereafter, for the remaining twelve
(12) months of the Consulting Period, Executive shall perform
the Consulting Services on a part-time basis (not to exceed ten
(10) days per quarter), as and when reasonably requested by the
Company from time to time, and in consideration of such services,
the Mexican Subsidiary shall pay Executive an aggregate amount
equal to $200,000, payable to Executive quarterly, in advance of
such quarter.
(iii) Notwithstanding the timing of
the payments described in clause (ii) above, in the event of
Executive’s death or permanent disability during the
Consulting Period, all payments not previously made to Executive
pursuant to clause (ii) shall become due and pay
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