Exhibit 10.16
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 Alfonso Romo Garza (“
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 President and Chief Executive 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 Mexican
Subsidiary shall pay Executive a lump-sum payment equal to
$10,400,000, 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 fifth 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.
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 shall be subject to
reduction to satisfy all applicable withholding tax obligations
under Mexican law.
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 .
(a) The
provisions of both (a) Section 12 (other than
Sections 12.3 and 12.4) of the Employment Agreement, and
(b) the Noncompetition and Nonsolicitation Agreement, executed
by Executive on a date even herewith, shall continue to survive in
accordance with the terms thereof.
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(b) Following
the Closing Date and for a period of 24 months, Executive
shall make himself reasonably available at the request of Monsanto
to provide Executive’s knowledge, experience and skill with
respect to all matters involving the business of the Company and
its affiliates with which Executive is personally familiar,
including, without limitation, assisting with existing or future
investigations, proceedings, litigations or examinations involving
the Company or any of its affiliates relating to periods which
Executive was employed by the Company; provided, however, that
Executive shall be available for a period of no more than five days
per calendar quarter, subject to not interfering with
Executive’s work schedule. For each day, or part thereof,
that Executive provides assistance to the Company as contemplated
hereunder, the Company shall pay Executive an amount equal to
(x) divided by (y), where (x) equals the
Executive’s annual base salary as in effect immediately prior
to the Closing Date, and (y) equals 365. In addition, upon
presentment of satisfactory documentation, the Compa
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