Exhibit 10.2
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is entered into
as of July 1, 2005 by and between SEABOARD CORPORATION, a Delaware
corporation (together with any Successor thereto, the "Company"),
and Xxxxxx X. Xxxxx ("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, 2005 (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,
2024. 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 Senior Vice President, Treasurer and Chief
Financial Officer, 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 Chief Executive Officer of the Company and 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. During the Employment Period, the Company shall
pay Executive a base salary at an annualized rate of four hundred
forty thousand dollars ($440,000), 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 four
hundred fifty thousand dollars ($450,000) 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 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;
(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) animal production and processing, meat processing (including
any further processed meats) and fast food restaurants; (ii) cargo
transportation, whether over land or water, and all related
business, including, without limitation, logistics, freight
forwarding, agency representation and stevedoring; (iii) flour
milling and commodity trading; and (iv) any business acquired or
commenced by the Company after the Commencement Date which has
sales in excess of $100 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
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Section 8 (d) above by Executive's resignation other
than for Good Reason; or (y) the one (1) year anniversary date of
the Date of Termination with respect to any other termination of
employment hereunder.
"Territory" means the United States of America with
respect to the businesses of hog production and processing, and the
United States of America, the Caribbean Basin, and Central and
South America with respect to the business of marine
transportation, and the United States of America, Africa, Haiti,
and Ecuador with respect to the business of flour milling and
commodity trading which Executive acknowledges and agrees are the
geographic areas in which the Company engages in the Company
Activities.
(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 (i) 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; or
(ii) owning less than a controlling interest in any fast food
restaurant or restaurants, so long as Executive does not
participate in the management of the operation in any way.
(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
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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 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.
section 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.
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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 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.
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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 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.
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(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 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.
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"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
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 first Person's assets and liabilities 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 first Person are transferred.
SIGNATURE PAGE FOLLOWS
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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 CORPORATION
By: /s/ X. X. Xxxxxx
Name: X. X. Xxxxxx
Title: President
Executive:
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
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