EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is entered into
as of July 1, 2006 by and between SEABOARD OVERSEAS AND TRADING
GROUP, a division of Seaboard Corporation, a Delaware corporation
(together with any Successor thereto, the "Company"), and Xxxxx X.
Xxxxxx ("Executive").
WITNESSETH:
WHEREAS, the Company desires to employ and secure the
exclusive services of Executive on the terms and conditions set
forth in this Agreement;
WHEREAS, Executive desires to accept such employment on such
terms and conditions; and
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and promises contained herein and for other good
and valuable consideration, the Company and Executive hereby agree
as follows:
1. Agreement to Employ. Upon the terms and subject to the
conditions of this Agreement, the Company hereby agrees to continue
to employ Executive, and Executive hereby accepts such continued
employment with the Company.
2. Term; Position and Responsibilities; and Location.
(a) Term of Employment. Unless Executive's employment
shall sooner terminate pursuant to Section 8, the Company shall
continue to employ Executive on the terms and subject to the
conditions of this Agreement for a term commencing on
July 1, 2006 (the "Commencement Date") and ending on the date
which is five years after the Commencement Date, provided, however,
on each annual anniversary date of the Commencement Date
(an "Annual Anniversary Date"), Executive's employment hereunder
shall be deemed to be automatically extended, upon the same terms
and conditions for five years after such Annual Anniversary Date,
unless the Company shall have given written notice to Executive, at
least thirty (30) days prior to the expiration of such Annual
Anniversary Date, of its intention not to extend the Employment
Period (as defined below) hereunder. Notwithstanding the foregoing,
unless mutually agreed to by the Company and the Executive,
Executive's employment hereunder shall under no circumstances
extend beyond December 31, 2026. The period during which Executive
is employed by the Company pursuant to this Agreement, including
any extension thereof in accordance with the preceding sentence,
shall be referred to as the "Employment Period."
(b) Position and Responsibilities. During the Employment
Period, Executive shall serve as President and Chief Executive
Officer, Seaboard Overseas and Trading Group, and shall have such
duties and responsibilities as are customarily assigned to
individuals serving in such position and such other duties
consistent with Executive's title and position as the Board of
Directors of the Company (the "Board") specifies from time to time.
Executive shall devote all of his skill,
knowledge, commercial efforts and business time to the
conscientious and good faith performance of his duties and
responsibilities for the Company to the best of his ability.
(c) Location. During the Employment Period, Executive's
services shall be performed primarily in the Kansas City
metropolitan area. However, Executive may be required to travel
in and outside of Kansas City as the needs of the Company's
business dictate.
3. Base Salary. Commencing August 7, 2006, the Company
shall pay Executive a base salary at an annualized rate of two
hundred twenty-five thousand dollars ($225,000), payable in
installments on the Company's regular payroll dates. The Board
shall review Executive's base salary annually during the Employment
Period and may increase (but not decrease) such base salary from
time to time, based on its periodic review of Executive's
performance in accordance with the Company's regular policies and
procedures. The annual base salary payable to Executive from time
to time under this Section 3 shall hereinafter be referred to
as the "Base Salary."
4. Annual Bonus Compensation. Executive shall be eligible
to receive an annual bonus ("Annual Bonus") with respect to each
calendar year ending during the Employment Period. The Annual
Bonus shall be determined under the Company's Executive Officers'
Bonus Plan or such other annual bonus plan maintained by the
Company for similarly situated Executives that the Company
designates, in its sole discretion (any such plan, the "Bonus
Plan"), in accordance with the terms of such plan as in effect from
time to time. Executive's Annual Bonus shall not be less than two
hundred fifty thousand dollars ($250,000) for any calendar year
during the Employment Period. The Annual Bonus is earned pro-rata
throughout each year. The Annual Bonus for each year shall be
payable in cash on or before March 1 of the following year.
5. Car Allowance. During Executive's Employment Period,
Executive will be entitled to receive an annual car allowance and
gasoline charge privileges in accordance with the Company's car
allowance policy.
6. Executive Benefits. During the Employment Period,
Executive will be eligible to participate in the employee and
executive benefit plans and programs maintained by the Company from
time to time in which executives of the Company at Executive's
grade level are eligible to participate, including medical, dental,
disability, hospitalization, life insurance, and retirement (i.e.,
401K, pension and executive retirement plans), deferred
compensation and savings plans, on the terms and subject to the
conditions set forth in such plans; as may be amended from time
to time; provided, however, the benefits provided by the Company
will not be amended to provide for any benefits which are
materially less than the current benefits provided to Executive
at the Commencement Date.
7. Indemnification; Expenses; Paid Time Off.
(a) Indemnification. Except to the extent, if any,
prohibited by law, the Company shall indemnify Executive
against expenses (including attorneys' fees of counsel selected
by Executive), judgments, fines and amounts paid in settlement
actually and reasonably incurred by Executive in connection with
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, to which
Executive was, is, or is threatened
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to be, made a party by reason of facts which include Executive's
being or having been an employee, officer, director or agent
of the Company or any Affiliates. Except to the extent, if any,
prohibited by law, the Company shall pay expenses (including
attorneys' fees of counsel selected by Executive) actually and
reasonably incurred by Executive in defending any such action, suit
or proceeding in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by Executive to
repay such amounts so paid on Executive's behalf if it shall
ultimately be determined that Executive is not entitled to be
indemnified by the Company for such expenses under applicable law.
The provisions of this Section 7(a) shall (i) survive termination
of this Agreement; and (ii) not be deemed exclusive of any other
indemnification or expense rights to which Executive may be
entitled.
(b) Business Expenses. During the Employment Period,
the Company will reimburse Executive for all reasonable and
necessary business-related expenses incurred by Executive at the
request of and on behalf of the Company in accordance with The
Company's normal expense reimbursement policies.
(c) Paid Time Off. During the Employment Period,
Executive shall be entitled to paid time off on an annualized basis
in accordance with the Company's paid time off policy. Executive
shall also be entitled to Company-designated holidays.
8. Termination of Employment.
(a) Termination Due to Death or Disability. Executive's
employment shall automatically terminate upon Executive's death and
may be terminated by the Company due to Executive's Disability (as
defined below in this subsection (a)). In the event that
Executive's employment is terminated due to his Disability or
death, no termination benefits shall be payable to or in respect of
Executive except as provided in Section 8(f)(ii). For purposes of
this Agreement, "Disability" means a physical or mental disability
that prevents or would prevent the performance by Executive of his
duties hereunder for a continuous period of six months or longer.
The determination of Executive's Disability will be made by an
independent physician agreed to by the parties. If the parties are
unable to agree within ten (10) days after a request for
designation by a party, then the Company and the Executive shall
each select a physician, and the two (2) physicians selected shall
select a third physician. The three (3) physicians so selected
shall make a determination of the Executive's Disability, as
determined by at least two (2) of the three (3) physicians
selected. Such determination shall be final and binding on the
parties hereto, and shall be based on such competent medical
evidence as shall be presented to such physicians by Executive
and/or the Company or by any physician or group of physicians or
other competent medical experts employed by Executive and/or the
Company to advise such physicians.
(b) Termination by the Company for Cause. Executive's
employment may be terminated by the Company for Cause (as defined
below in this subsection (b)). In the event of a termination of
Executive's employment by the Company for Cause, Executive shall be
paid the termination benefits as provided in Section 8(f)(ii). For
purposes of this Agreement, "Cause" means (i) a material breach by
Executive of any provision of this Agreement; (ii) a material
violation by Executive of any Policy (as defined in Section 14),
resulting in material injury to the Company; (iii) Executive's
willful misconduct or gross negligence that has caused or is
reasonably expected to
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result in material injury to the business, reputation or prospects
of the Company or any of its Affiliates; (iv) Executive's
material fraud or misappropriation of funds; or (v) the commission
by Executive of a felony involving moral turpitude; provided that
no termination under clauses (i) or (ii) shall be effective unless
Company shall have given Executive notice of the event or events
constituting Cause and Executive shall have failed to cure such
event or events within thirty (30) business days after receipt of
such notice.
(c) Termination Without Cause. Executive's employment
may be terminated by the Company Without Cause (as defined below in
this subsection (c)) at any time. In the event of a termination
of Executive's employment by the Company Without Cause, the
Executive shall be paid the termination benefits as provided in
Section 8(f)(i). For purposes of this Agreement, a termination
"Without Cause" shall mean a termination of Executive's employment
by the Company other than due to Executive's death or Disability as
described in Section 8(a) and other than for Cause as described in
Section 8(b).
(d) Termination by Executive. Executive may resign from
his employment for any reason, including for Good Reason (as
defined below in this subsection (d)). In the event of a
termination of Executive's employment by Executive's resignation
other than for Good Reason, no termination benefits shall be
payable to or in respect of Executive except as provided in
Section 8(f)(ii) and in the event of a termination of Executive's
employment by Executive for Good Reason, no termination benefits
shall be payable to or in respect of Executive except as provided
in Section 8(f)(i). For purposes of this Agreement, a termination
of employment by Executive for "Good Reason" shall mean a
resignation by Executive from his employment with the Company
within one hundred eighty (180) days following the occurrence,
without Executive's consent, of any of the following events: (i)
a material diminution in the Executive's position, authority or
responsibilities; (ii) any involuntary relocation of the location
where Executive primarily performs his services; or (iii) any other
material breach by the Company of any material provision of this
Agreement; provided that the Executive shall have given the Company
notice of the event or events constituting Good Reason and the
Company shall have failed to cure such event or events (to the
extent capable of being cured) within thirty (30) business days
after receipt of such notice.
(e) Notice of Termination; Date of Termination.
(i) Notice of Termination. Any termination of
Executive's employment by the Company or by Executive (other
than as a result of Executive's death) shall be communicated
by a written Notice of Termination addressed to the other
party to this Agreement. A "Notice of Termination" shall mean
a notice stating that Executive or the Company, as the case
may be, is electing to terminate Executive's employment with
the Company (and thereby terminating the Employment Period),
stating the proposed effective date of such termination,
indicating the specific provision of this Section 8 under
which such termination is being effected and, if applicable,
setting forth in reasonable detail the circumstances claimed
to provide the basis for such termination. Any Notice of
Termination given by an Executive must specify an effective
date of termination which is at least thirty (30) days after
the giving of the Notice of Termination.
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(ii) Date of Termination. The term "Date of
Termination" shall mean (i) if Executive's employment is
terminated by his death, the date of his death; and (ii) if
Executive's employment is terminated for any other reason, the
effective date of termination specified in such Notice of
Termination. The Employment Period shall expire on the Date of
Termination.
(f) Payments Upon Certain Terminations.
(i) In the event of a termination of Executive's
employment by the Company Without Cause or by Executive's
resignation from employment for Good Reason during the
Employment Period, the Company shall pay to Executive (or,
following his death, to Executive's estate), within thirty
(30) days of the Date of Termination, (x) his Base Salary
through the Date of Termination, to the extent not
previously paid; (y) the pro-rata amount of the Annual Bonus
(based on the amount paid for the previous year) which is
accrued through the date of termination; and (z) reimbursement
for any unreimbursed business expenses incurred by Executive
prior to the Date of Termination that are subject to
reimbursement pursuant to the terms hereof, and payment for
paid time off accrued as of the Date of Termination but unused
(such amounts under clauses (x), (y) and (z), collectively the
"Accrued Obligations"). In addition, in the event of any
such termination of Executive's employment, if Executive
executes and delivers to the Company a Release and Discharge
of All Claims substantially in the form approved by the
Company, Executive (or, following his death, Executive's
estate) shall be entitled to the following payments and
benefits:
(A) the Executive's Base Salary (at the Base
Salary being paid on the Date of Termination), for the
longer of: (x) the remaining Employment Period (assuming
Executive's employment had not terminated) or (y) one (1)
year (the "Severance Period"), payable in installments in
accordance with the Company's regular payroll policies
for one year after the Date of Termination, with the
balance, if any, being paid pursuant to a lump sum
payment on the one year anniversary date of the Date of
Termination; and
(B) the Executive's Annual Bonus (at the
amount of the Annual Bonus paid to the Executive for the
year prior to the Date of Termination) which would have
been paid to the Executive had Executive's employment
continued for the Severance Period, duly apportioned for
any partial year, such amount to be payable to Executive
on the one year anniversary date of the Date of
Termination; and
(C) the Executive shall receive "Years of
Service" credit for the number of years comprising the
Severance Period for purposes of accruing the Executive's
benefit under the Company's Executive Retirement Plan and
the Final Average Earnings thereunder for the Severance
Period shall be determined based on the Base Salary being
paid on the Date of Termination and the Annual Bonus paid
to the Executive for the year prior to the Date of
Termination;
(D) the Executive shall automatically vest in
all employee welfare and benefit plans in which the
Executive was participating as of the Date of
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Termination and such benefits shall be paid to Executive
in accordance with the terms of such plans; and
(E) the Company shall provide outplacement
services to Executive for up to ninety (90) days.
Executive shall not have a duty to mitigate the costs to
the Company under this Section 8(f)(i), nor shall any payments from
the Company to Executive hereunder be reduced, offset or canceled
by any compensation or fees earned by (whether or not paid
currently) or offered to Executive during the remainder of the
fiscal year of the Company that includes the Date of Termination by
a subsequent employer or other Person (as defined below in
Section 18(k) below) for which Executive performs services,
including, but not limited to, consulting services.
(ii) If Executive's employment shall terminate upon
his death or if the Company shall terminate Executive's
employment for Cause or due to Executive's Disability or
Executive shall resign from his employment without Good
Reason, in any such case during the Employment Period, the
Company shall pay to Executive (or, in the event of
Executive's death, to his estate) the Accrued Obligations
within thirty (30) days following the Date of Termination.
(iii) Except as specifically set forth in this
Section 8(f), no termination benefits shall be payable to or
in respect of Executive's employment with the Company or its
Affiliates.
(iv) The Company shall have the right to apply and
set off against the Accrued Obligations or any other amounts
owing to Executive hereunder, any amounts owing by the
Executive to the Company, whether pursuant to this Agreement
or otherwise.
(g) Resignation upon Termination. Effective as of any
Date of Termination under this Section 8 or otherwise as of the
date of Executive's termination of employment with the Company,
Executive shall resign, in writing, from all Board memberships
and other positions then held by him, or to which he has been
appointed, designated or nominated, with the Company and its
Affiliates.
9. Confidentiality.
(a) Executive acknowledges and agrees that the terms of
this Agreement, including all addendums and attachments hereto, are
confidential. Executive agrees not to disclose any information
contained in this Agreement, or the fact of this Agreement, to
anyone, other than to Executive's lawyer, financial advisor or
immediate family members. If Executive discloses any information
contained in this Agreement to his lawyer, financial advisor or
immediate family members as permitted herein, Executive agrees to
immediately tell each such individual that he or she must abide by
the confidentiality restrictions contained herein and keep such
information confidential as well.
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(b) Executive agrees that during his employment with the
Company and thereafter, Executive will not, directly or indirectly
(i) disclose any Confidential Information to any Person (other
than, only with respect to the period that Executive is employed by
the Company, to an Executive of the Company who requires such
information to perform his or her duties for the Company); or
(ii) use any Confidential Information for Executive's own benefit
or the benefit of any third party. "Confidential Information"
means confidential, proprietary or commercially sensitive
information relating to (i) the Company or its Affiliates, or
members of their management or boards; or (ii) any third parties
who do business with the Company or its Affiliates, including
customers and suppliers. Confidential Information includes,
without limitation, marketing plans, business plans, financial
information and records, operation methods, personnel information,
drawings, designs, information regarding product development, other
commercial or business information and any other information not
available to the public generally. The foregoing obligation shall
not apply to any Confidential Information that has been previously
disclosed to the public or is in the public domain (other than by
reason of a breach of Executive's obligations to hold such
Confidential Information confidential). If Executive is required
or requested by a court or governmental agency to disclose
Confidential Information, Executive must notify the General Counsel
of the Company in writing of such disclosure obligation or request
no later than three business days after Executive learns of such
obligation or request, and permit the Company to take all lawful
steps it deems appropriate to prevent or limit the required
disclosure.
10. Partial Restraint on Post-termination Competition.
(a) Definitions. For the purposes of this Section 10,
the following definitions shall apply:
"Competitor" means any business, individual,
partnership, joint venture, association, firm, corporation or other
entity, other than the Company and its affiliates, that is engaging
or actively planning to engage, wholly or partly, in activities
("Competitive Activities") that directly compete or would compete
with the Company or its affiliates in the Company Activities (as
hereinafter defined) in the Territory (as hereinafter defined).
"Competitive Position" means (i) the direct or
indirect ownership or control of all or any portion of a
Competitor; or (ii) any employment or independent contractor
arrangement with any Competitor whereby Executive will serve such
Competitor in any managerial, sales, executive or consultant
capacity with respect to Competitive Activities in the Territory.
"The Company Activities" means the businesses of
(i) grain processing and flour milling; (ii) bulk ocean
transportation; (iii) commodity trading; (iv) grain terminal
operations and (v) any business acquired or commenced by the
Company after the Commencement Date which has sales in excess of
$50 million.
"Non-compete Period" or "Non-solicitation Period"
means the period beginning with the Commencement Date and ending
on: (x) the two year anniversary date of the Date of Termination
with respect to any termination of employment by the Executive
pursuant to Section 8(d) above by Executive's resignation other
than for Good Reason; or (y) the one (1) year
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anniversary date of the Date of Termination with respect to any
other termination of employment hereunder.
"Territory" means the United States of America,
Africa, South America and Haiti, which Executive acknowledges and
agrees are the geographic areas in which the Company engages in the
Company Activities, but with respect to grain processing and flour
milling, shall not include the United States of America.
(b) Non-competition.
(i) The parties hereto acknowledge that Executive,
by virtue of his position with and responsibilities to the
Company, is engaging and is expected to continue to engage
during the Term in the Company Activities throughout the
Territory and has executive management responsibilities with
respect to the Company responsibilities which extend
throughout the Territory. Executive acknowledges that to
protect adequately the interest of the Company in the business
of the Company it is essential that any non-compete covenant
with respect thereto cover all the Company Activities and the
entire Territory.
(ii) Executive hereby agrees that, during the Non-
compete Period, Executive will not, either directly or
indirectly, alone or in conjunction with any other party,
accept or enter into a Competitive Position. Executive shall
notify the Company promptly in writing if Executive
receives an offer of a Competitive Position during the Non-
compete Period, and such notice shall describe all material
terms of such offer.
Nothing contained in this Section 10 shall prohibit
Executive from acquiring not more than five percent (5%) of any
company whose common stock is publicly traded on a national
securities exchange or in the over-the-counter market.
(c) Severability. If a judicial or arbitral
determination is made that any of the provisions of this Section
10 constitutes an unreasonable or otherwise unenforceable
restriction against Executive the provisions of this Section 10
shall be rendered void only to the extent that such judicial or
arbitral determination finds such provisions to be unreasonable or
otherwise unenforceable with respect to Executive. In this regard,
Executive hereby agrees that any judicial or arbitral authority
construing this Agreement shall sever or reform any portion of the
Territory, any prohibited business activity or any time period from
the coverage of this Agreement to allow the covenants in this
Section 10 to be enforced to the maximum extent authorized by law,
and shall then enforce the covenants in this Section 10 as so
severed or reformed.
(d) Reasonable Restrictions. Executive acknowledges
that the restrictions and covenants contained in this Agreement are
reasonably necessary to protect the goodwill and legitimate
business interests of the Company, are not overbroad, overlong, or
unfair (including in duration and scope), and will not curtail
Executive's ability to earn a livelihood upon Executive's
termination of employment with the Company.
11. Non-Solicitation of Employees and Customers. During the
period of Executive's employment with the Company and for the one-
year period following the termination of his
8
employment, Executive shall not, directly or indirectly, by himself
or through any third party, whether on Executive's own behalf or on
behalf of any other Person or entity, (i) solicit or endeavor to
solicit, employ or retain; (ii) interfere with the relationship of
the Company or any of its Affiliates with; or (iii) attempt to
establish a business relationship with (A) any natural person who
is or was (during Executive's employment with the Company) an
employee or engaged by the Company or any Affiliate to provide
services to it, or (B) any customer of the Company or any of its
Affiliates who was a customer at any time during which Executive
was an employee of the Company.
12. Work Product. Executive agrees that all of Executive's
work product (created solely or jointly with others, and including
any intellectual property or moral rights in such work product),
given, disclosed, created, developed or prepared in connection with
Executive's employment with the Company, whether ensuing during or
after Executive's employment with the Company ("Work Product")
shall exclusively vest in and be the sole and exclusive property of
the Company and shall constitute "work made for hire" (as that term
is defined under Section 101 of the U.S. Copyright Act, 17 U.S.C.
101) with the Company being the person for whom the work was
prepared. In the event that any such Work Product is deemed not to
be a "work made for hire" or does not vest by operation of law in
the Company, Executive hereby irrevocably assigns, transfers and
conveys to the Company, exclusively and perpetually, all right,
title and interest which Executive may have or acquire in and to
such Work Product throughout the world, including without
limitation any copyrights and patents, and the right to secure
registrations, renewals, reissues, and extensions thereof. The
Company and its Affiliates or their designees shall have the
exclusive right to make full and complete use of, and make changes
to all Work Product without restrictions or liabilities of any
kind, and Executive shall not have the right to use any such
materials, other than within the legitimate scope and purpose of
Executive's employment with the Company. Executive shall promptly
disclose to the Company the creation or existence of any Work
Product and shall take whatever additional lawful action may be
necessary, and sign whatever documents the Company may require, in
order to secure and vest in the Company or its designee all right,
title and interest in and to all Work Product and any intellectual
property rights therein (including full cooperation in support of
any Company applications for patents and copyright or trademark
registrations).
13. Return of Company Property. In the event of termination
of Executive's employment for any reason, Executive shall return to
the Company all of the property of the Company and its Affiliates,
including without limitation all materials or documents containing
or pertaining to Confidential Information, and including without
limitation, any company car, all computers (including laptops),
cell phones, keys, PDAs, Blackberries, credit cards, facsimile
machines, card access to any Company building, customer lists,
computer disks, reports, files, e-mails, work papers, Work Product,
documents, memoranda, records and software, computer access codes
or disks and instructional manuals, internal policies, and other
similar materials or documents which Executive used, received or
prepared, helped prepare or supervised the preparation of in
connection with Executive's employment with the Company. Executive
agrees not to retain any copies, duplicates, reproductions or
excerpts of such material or documents.
14. Compliance With Company Policies. During Executive's
employment with the Company, Executive shall be governed by and be
subject to, and Executive hereby agrees to comply with, all Company
policies applicable to employees generally or to employees at
Executive's grade level, including without limitation, the
Company's Code of Business Ethics and Conduct, in each
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case, as any such policies may be amended from time to time in
the Company's sole discretion (collectively, the "Policies").
15. Injunctive Relief with Respect to Covenants; Forum,
Venue and Jurisdiction. Executive acknowledges and agrees that a
breach by Executive of any of Section 9, 10, 11, 12, 13 or 14 is a
material breach of this Agreement and that remedies at law may be
inadequate to protect the Company and its Affiliates in the event
of such breach, and, without prejudice to any other rights and
remedies otherwise available to the Company, Executive agrees
to the granting of injunctive relief in the Company's favor in
connection with any such breach or violation without proof of
irreparable harm, plus attorneys' fees and costs to enforce these
provisions. Executive further acknowledges and agrees that the
Company's obligations to pay Executive any amount or provide
Executive with any benefit or right pursuant to Section 8 is
subject to Executive's compliance with Executive's obligations
under Sections 9 through 14 inclusive, and that in the event of a
breach by Executive of any of Section 9, 10, 11, 12, 13 or 14, the
Company shall immediately cease paying such benefits and Executive
shall be obligated to immediately repay to the Company all
amounts theretofore paid to Executive pursuant to Section 8. In
addition, if not repaid, the Company shall have the right to set
off from any amounts otherwise due to Executive any amounts
previously paid pursuant to Section 8(f) (other than the Accrued
Obligations). Executive further agrees that the foregoing is
appropriate for any such breach inasmuch as actual damages cannot
be readily calculated, the amount is fair and reasonable under the
circumstances, and the Company would suffer irreparable harm if any
of these Sections were breached. All disputes not relating to any
request or application for injunctive relief in accordance with
this Section 15 shall be resolved by arbitration in accordance with
Section 18(b).
16. Assumption of Agreement. The Company shall require any
Successor thereto, by agreement in form and substance reasonably
satisfactory to Executive, to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had
taken place. Failure of the Company to obtain such agreement prior
to the effectiveness of any such succession shall be a breach of
this Agreement and shall entitle Executive to compensation from the
Company in the same amount and on the same terms as Executive would
be entitled hereunder if the Company had terminated Executive's
employment Without Cause as described in Section 8, except that for
purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of
Termination.
17. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject
matter hereof. All prior correspondence and proposals (including,
but not limited to, summaries of proposed terms) and all prior
promises, representations, understandings, arrangements and
agreements relating to such subject matter are merged herein and
superseded hereby.
18. Miscellaneous.
(a) Binding Effect; Assignment. This Agreement shall be
binding on and inure to the benefit of the Company and its
Successors and permitted assigns. This Agreement shall also be
binding on and inure to the benefit of Executive and his heirs,
executors, administrators and legal
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representatives. This Agreement shall not be assignable by any
party hereto without the prior written consent of the other parties
hereto. The Company may effect such an assignment without prior
written approval of Executive upon the transfer of all or
substantially all of its business and/or assets (by whatever
means), provided that the Successor to the Company shall expressly
assume and agree to perform this Agreement in accordance with the
provisions of Section 16.
(b) Arbitration. The Company and Executive agree that
any dispute or controversy arising under or in connection with this
Agreement shall be resolved by final and binding arbitration before
the American Arbitration Association ("AAA"). The arbitration shall
be conducted in accordance with AAA's National Rules for the
Resolution of Employment Disputes then in effect at the time of the
arbitration. The arbitration shall be held in the general Kansas
City, Kansas metropolitan area. The dispute shall be heard and
determined by one arbitrator selected from a list of arbitrators
who are members of AAA's Regional Employment Dispute Resolution
roster. If the parties cannot agree upon a mutually acceptable
arbitrator from the list, each party shall number the names in
order of preference and return the list to AAA within ten (10) days
from the date of the list. A party may strike a name from the list
only for good cause. The arbitrator receiving the highest ranking
by the parties shall be selected. Depositions, if permitted by the
arbitrator, shall be limited to a maximum of two (2) per party and
to a maximum of four (4) hours in duration. The arbitration shall
not impair either party's right to request injunctive or other
equitable relief in accordance with Section 15 of this Agreement.
(c) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Kansas
without reference to principles of conflicts of laws.
(d) Taxes. The Company may withhold from any payments
made under this Agreement all applicable taxes, including, but not
limited to, income, employment and social insurance taxes, as shall
be required by law.
(e) Amendments. No provision of this Agreement may be
modified, waived or discharged unless such modification, waiver or
discharge is approved by the Company and is agreed to in writing by
Executive. No waiver by any party hereto at any time of any breach
by any other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No
waiver of any provision of this Agreement shall be implied from any
course of dealing between or among the parties hereto or from any
failure by any party hereto to assert its rights hereunder on any
occasion or series of occasions.
(f) Severability. In the event that any one or more of
the provisions of this Agreement shall be or become invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall
not be affected thereby.
(g) Notices. Any notice or other communication required
or permitted to be delivered under this Agreement shall be (i) in
writing; (ii) delivered personally, by courier service or by
certified or registered mail, first-class postage prepaid and
return receipt requested; (iii) deemed to have been received on the
date of delivery or, if mailed, on the third business day after the
mailing
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thereof; and (iv) addressed as follows (or to such other address
as the party entitled to notice shall hereafter designate in
accordance with the terms hereof):
(i) If to the Company, to it at:
Seaboard Corporation
0000 Xxxx 00xx Xxxxxx
Xxxxxxx Xxxxxxx, Xxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) if to Executive, to his residential address as
currently on file with the Company.
(h) Voluntary Agreement; No Conflicts. Executive
represents that he is entering into this Agreement voluntarily and
that Executive's employment hereunder and compliance with the terms
and conditions of this Agreement will not conflict with or result
in the breach by Executive of any agreement to which he is a party
or by which he or his properties or assets may be bound.
(i) Counterparts/Facsimile. This Agreement may be
executed in counterparts (including by facsimile), each of which
shall be deemed an original and all of which together shall
constitute one and the same instrument.
(j) Headings. The section and other headings contained
in this Agreement are for the convenience of the parties only and
are not intended to be a part hereof or to affect the meaning or
interpretation hereof.
(k) Certain other Definitions.
"Affiliate" with respect to any Person, means any
other Person that, directly or indirectly through one or more
intermediaries, Controls, is Controlled by, or is under common
Control with the first Person, including, but not limited to, a
Subsidiary of any such Person.
"Control" (including, with correlative meanings,
the terms "Controlling," "Controlled by" and "under common Control
with"): with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or
otherwise.
"Person" any natural person, firm, partnership,
limited liability company, association, corporation, company,
trust, business trust, governmental authority or other entity.
"Subsidiary" with respect to any Person, each
corporation or other Person in which the first Person owns or
Controls, directly or indirectly, capital stock or other ownership
12
interests representing fifty percent (50%) or more of the combined
voting power of the outstanding voting stock or other ownership
interests of such corporation or other Person.
"Successor" of a Person means a Person that
succeeds to the assets and liabilities of the Seaboard Overseas
and Trading Group by merger, liquidation, dissolution or otherwise
by operation of law, or a Person to which all or substantially all
the assets and/or business of the Seaboard Overseas and Trading
Group are transferred.
IN WITNESS WHEREOF, the Company has duly executed this
Agreement by its authorized representatives, and Executive has
hereunto set his hand, in each case effective as of the date first
above written.
THIS AGREEMENT CONTAINS A PROVISION REQUIRING THAT ARBITRATION
PURSUANT TO THE AMERICAN ARBITRATION ASSOCIATION NATIONAL RULES FOR
THE RESILUTION OF EMPLOYMENT DISPUTES IS THE EXCLUSIVE MEANS FOR
RESOLVING ANY DISPUTE BETWEEN THE PARTIES HERETO AS TO THIS
AGREEMENT.
SEABOARD OVERSEAS AND TRADING
GROUP, a division of Seaboard
Corporation
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
Executive:
By: /s/ Xxxx Xxxxxx
Xxxxx X. Xxxxxx
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