SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
X Quarterly report pursuant to Section 13 or 15 (d) of the Securities
Exchange Act of 1934
For the quarterly period ended February 28, 1994 or
Transition report pursuant to Section 13 or 15 (d) of the Securities
Exchange Act 1934
For the transition period from to
Commission file number: 0-17005
DEKALB Genetics Corporation
(Exact name of registrant as specified in its charter)
Delaware 36-3586793
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3100 Sycamore Road, DeKalb, Illinois 60115
(Address of principal executive offices) (Zip Code)
815-758-3461
(Registrant's telephone number,
including area code)
Indicate whether the registrant (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
Title of class Outstanding as of February 28, 1994
Class A Common, no par value 797,694
Class B Common, no par value 4,343,200
Exhibit index is located on page 2
Total number of pages 60
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DEKALB GENETICS CORPORATION
INDEX
Part I - Financial Information (Unaudited except for the
Condensed Consolidated Balance Sheet as of August 31, 1993):
Management's Discussion and Analysis of Results of Operations
and Financial Position
Condensed Consolidated Statements of Operations for the six
months ended February 28, 1994 and 1993
Condensed Consolidated Statements of Operations for the three
months ended February 28, 1994 and 1993
Condensed Consolidated Balance Sheets, February 28, 1994 and 1993
and August 31, 1993
Condensed Consolidated Statements of Cash Flows for the six
months ended February 28, 1994 and 1993
Notes to Condensed Consolidated Financial Statements
Report of Independent Accountants
Part II - Other Information
EXHIBIT 10 - Employment Agreements between DEKALB Genetics
Corporation and its executive officers.
EXHIBIT 11 - Computation of Net Earnings per Common and Common
Equivalent Share for the six months ended February 28, 1994 and
1993 and for the three months ended February 28, 1994 and 1993
EXHIBIT 15 - Letter Re Unaudited Interim Financial Information
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<PAGE>
Management's Discussion and
Analysis of Results of Operations
and Financial Position
Net earnings for the first six months of fiscal 1994 were $6.6 million ($1.27
per share) compared with $7.9 million ($1.53 per share) in fiscal 1993.
Consolidated revenues were $4.5 million higher than the prior year, in spite
of $4.8 million lower revenues from Argentina. U.S. seed and swine revenues
were $6.1 million and $4.9 million higher, respectively, than last year.
Earnings for the first six months of fiscal 1994 included $1.6 million ($.32
per share) of after-tax benefit related to the suspension of the defined
benefit portion of the Company's retirement program. Excluding that benefit
and the cumulative effect of adopting the new standard for accounting for
income taxes, net earnings were down $2.6 million ($.50 per share), primarily
due to lower earnings in Argentina, partially offset by improved results from
the swine business and lower corporate and interest expenses.
Quarterly Industry Segment Revenues and Earnings
In Millions
(Unaudited)
Second Quarter Year-to-Date
February February February February
Revenues: 1994 1993 1994 1993
Seed $125.2 $116.1 $148.4 $147.9
Swine 13.2 10.8 26.2 21.3
Poultry 4.6 4.5 9.2 10.1
Total Revenues $143.0 $131.4 $183.8 $179.3
Earnings:
Seed $ 9.6 $ 13.7 $ 12.4 $ 17.2
Swine 0.9 0.6 2.7 1.3
Poultry (0.5) (0.2) (0.7) (0.4)
Total operations 10.0 14.1 14.4 18.1
General corporate expenses (0.5) (0.9) (1.1) (1.9)
Net interest expense (1.9) (2.2) (3.8) (4.0)
Earnings before income taxes and
accounting change $ 7.6 $ 11.0 $ 9.5 $ 12.2
Income tax provisions 1.9 3.9 2.6 4.3
Earnings before cumulative
effect of accounting change $ 5.7 $ 7.1 $ 6.9 $ 7.9
Cumulative effect of accounting
change - - (0.3) -
Net Earnings $ 5.7 $ 7.1 $ 6.6 $ 7.9
<PAGE>
<PAGE> Management's Discussion and
Analysis of Results of Operations
and Financial Position
(continued)
Seed
North American and European sales and net earnings are primarily realized in
the second and third fiscal quarters (December through May) and, for that
reason, the first six months' results should not be annualized. The best
year-to-year comparison of seed results is a combined total of the second and
third quarters for the years compared.
North American Seed
North American revenues were seven percent above the prior year mainly because
of higher corn and soybean deliveries in the United States. Corn unit margins
were 15 percent below last year due to higher seed corn unit production costs
resulting from a smaller crop and below-target yields, and a lower average
corn selling price partially driven by an unusually high proportion of smaller
sized seed and increased customer participation in discount programs for early
cash remittances. Operating expenses were slightly below last year, primarily
due to the suspension of the defined benefit portion of the Company's
retirement program described earlier.
North American seed earnings for the second quarter were $1.2 million lower
than last year despite a $1.6 million benefit resulting from the suspension of
the defined benefit portion of the Company's retirement program. The
advantage from increased deliveries of corn and soybean seed was more than
offset by higher U.S. corn costs, resulting in the earnings decrease.
International Seed
International seed segment earnings decreased $3.9 million from the first six
months of the prior year. In Argentina, revenues and corn volume were down 16
percent due to lower hybrid corn plantings, which resulted, in part, from
adverse weather conditions. Argentine earnings were down 46 percent from last
year's record earnings because of the lower planted corn acreage, lower
sunflower prices and higher crop costs. Nevertheless, DEKALB Argentina
maintained its leading corn market share position. Earnings from
international exports were down significantly from last year as a result of
higher costs of seed produced in the U.S. for export and lower export volumes
to Latin American countries and Europe.
International seed second quarter 1994 earnings were $2.9 million below the
same period in the prior year due to lower earnings from Argentina and the
higher cost of export sales from the U.S.
Swine
Swine segment earnings were $1.4 million higher than fiscal 1993. Sales
volume increased almost 12 percent over the prior year, while revenues
increased by more than 22 percent resulting from higher prices from both
breeding stock and market animals. Compared to prior year, cost of sales
increased 26 percent due to higher feed prices, greater swine volumes and the
operating costs of new facilities. Swine gross margin was 18 percent above
fiscal 1993. Operating expenses were only three percent higher than the prior
year, reflecting, in part, the benefit resulting from the suspension of the
defined benefit portion of the Company's retirement program.
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<PAGE>
Management's Discussion and
Analysis of Results of Operations
and Financial Position
(continued)
Second quarter earnings were $0.3 million above the prior year second quarter
due to higher gilt and boar sales volume and higher prices. A revenue
increase of $2.4 million was partially offset by higher feed costs and the
costs associated with new facilities. Operating expenses were slightly higher
than the prior year second quarter.
Poultry
The loss through February from the poultry segment was $0.3 million greater
than the same period of fiscal 1993. Decreased export parent and grandparent
earnings due to an embargo in Venezuela and a lack of hard currency in
Bulgaria, were partially offset by a reduction in the fiscal 1994 loss from
domestic operations. Operating expenses were below the prior year, largely
due to a benefit resulting from the suspension of the defined benefit portion
of the Company's retirement program.
The fiscal 1994 second quarter loss was $0.3 million greater than the second
quarter loss in fiscal 1993, also as the result of lower export activity.
General
In October 1993, the Board of Directors approved management's suspension of
the defined benefit portion of the Company's retirement program. The
cumulative effect of this curtailment through the second quarter of 1994 was a
benefit of $1.6 million after-tax. Due to the Company's method of annualizing
seed segment expenses, the full effects of this benefit ($2.3 million after
tax) will not be recognized until nine months results are completed.
The effective tax rate decreased from 35.2% in the first six months of fiscal
1993 to 27.4% in the same period of fiscal 1994. For each interim period, the
tax rate is determined from an estimate of full year earnings and the
resultant tax. In fiscal 1994, the full year estimate included a benefit
associated with international seed losses incurred in prior years but utilized
in the current year.
Financial Position
During the first half of fiscal 1994, the net cash flow from operations was
$11.4 million compared with an outflow of $23.3 million in the prior year
period. This swing resulted from significantly lower inventory acquisition
costs, resulting from smaller crop production, and the generation of receipts
from early cash discount programs.
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<PAGE>
Management's Discussion and
Analysis of Results of Operations
and Financial Position
(continued)
Cash requirements for the first six months were provided by earnings and
existing short-term credit facilities. Committed credit lines include a $50
million revolving credit facility through December 31, 1996 and a $15 million
facility available through November 29, 1994. The revolving credit facility
limits total borrowings by establishing limits on certain balance sheet values
and ratios. The most restrictive of these covenants requires the Company to
maintain tangible net worth greater than $65.0 million, and at February 28,
1994, tangible net worth was $76.1 million. The Company also has numerous
uncommitted credit facilities available and draws upon them periodically,
including during the six months ended February 28, 1994.
Management believes its operating cash flow and existing lines of credit are
sufficient to cover normal and expected working capital needs, capital
expenditures, dividends and debt maturities.
<TABLE>
<CAPTION>
DEKALB Genetics Corporation
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
For the six months ended February 28, 1994 and 1993
(Dollars in millions except per share amounts)
(Unaudited)
February February
1994 1993
<S> <C> <C>
Revenues:
Operating revenues $180.0 $176.4
Royalty income 3.8 2.9
183.8 179.3
Cost and Expenses:
Cost of operating revenues 102.6 86.2
Selling expense 34.3 35.0
Research and development cost 23.8 24.4
General and administrative expense 8.7 16.3
169.4 161.9
Operating Earnings 14.4 17.4
Interest expense, net of interest income of
$0.1 in 1994 and $0.3 in 1993 (3.8) (4.0)
Other expense, net (1.1) (1.2)
Earnings before income taxes and cumulative effect
of accounting change 9.5 12.2
Income tax provision 2.6 4.3
Earnings before cumulative effect of account 6.9 7.9
Cumulative effect of accounting change (0.3) -
NET EARNINGS $6.6 $7.9
Earnings per share before cumulative
effect of accounting change $1.32 $1.53
Accounting change (0.05) -
NET EARNINGS PER SHARE $1.27 $1.53
DIVIDENDS PER SHARE $0.40 $0.40
The accompanying notes are an integ
</TABLE>
<TABLE>
<CAPTION>
DEKALB Genetics Corporation
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
For the three months ended February 28, 1994 and 1993
(Dollars in millions except per share amounts)
(Unaudited)
February February
1994 1993
<S> <C> <C>
Revenues:
Operating revenues $140.9 $129.2
Royalty income 2.1 2.2
143.0 131.4
Cost and Expenses:
Cost of operating revenues 81.1 62.4
Selling expense 28.9 27.7
Research and development cost 18.5 18.5
General and administrative expense 4.5 8.9
133.0 117.5
Operating Earnings 10.0 13.9
Interest expense, net of interest income of
$0.1 in 1993 (1.9) (2.2)
Other expense, net (0.5) (0.7)
Earnings before income taxes 7.6 11.0
Income tax provision 1.9 3.9
NET EARNINGS $5.7 $7.1
NET EARNINGS PER SHARE $1.09 $1.38
DIVIDENDS PER SHARE $0.20 $0.20
The accompanying notes are an integ
</TABLE>
<TABLE>
<CAPTION>
DEKALB Genetics Corporation
CONDENSED CONSOLIDATED BALANCE SHEETS
February 28, 1994 and 1993 and August 31, 1993
(Dollars in millions)
February February August
1994 1993 1993
(Unaudited
<S> <C> <C> <C>
Current assets:
Cash and cash equivalents $0.2 $3.4 $3.5
Notes and accounts receivable, net of allowance for
doubtful accounts of $2.2 at February 28, 1994, $1.8 at
February 28, 1993 and $1.6 at August 3 79.4 85.3 36.8
Inventories (Note 2) 114.8 135.3 116.5
Deferred income taxes 6.2 7.0 6.4
Other current assets 6.6 8.4 3.4
Total current assets 207.2 239.4 166.6
Investments in and advances to related com 8.4 7.9 9.1
Intangible assets 41.9 43.2 42.6
Other assets 5.5 4.7 4.8
Property, plant and equipment, at cost 238.8 230.1 232.1
Less accumulated depreciation and amort(142.3) (137.8) (138.8)
Net property, plant and equipment 96.5 92.3 93.3
Total assets $359.5 $387.5 $316.4
Current liabilities:
Notes payable $51.0 $55.7 $55.1
Accounts payable, trade 32.2 35.2 6.8
Other accounts payable 21.3 17.7 5.5
Other current liabilities 33.9 43.7 32.6
Total current liabilities 138.4 152.3 100.0
Deferred compensation and other credits 5.3 5.7 5.8
Deferred income taxes 12.6 19.0 11.7
Long-term debt, less current maturities 85.1 92.2 85.2
Commitments and contingent liabilities (Note 4)
Shareholders' equity:
Capital stock:
Common, Class A; authorized 5,000,000 0.1 0.1 0.1
Common, Class B; authorized 15,000,000 0.4 0.4 0.4
Capital in excess of stated value 80.0 79.6 79.9
Retained earnings 42.8 45.2 38.2
Currency translation adjustments (Note 3 (2.8) (4.6) (2.5)
120.5 120.7 116.1
Less treasury stock, at cost (2.4) (2.4) (2.4)
Total shareholders' equity 118.1 118.3 113.7
Total liabilities and shareholders' equity$359.5 $387.5 $316.4
The accompanying notes are an inte
</TABLE>
<TABLE>
<CAPTION>
DEKALB Genetics Corporation
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
For the six months ended February 28, 1994 and 1993
(Dollars in millions)
Februar Febru
1994 1993
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income $6.6 $7.9
Adjustments to reconcile net income to net cash
flow from operating activities:
Depreciation and amortization 6.1 5.4
Interest on zero coupon note - 2.1
Equity earnings, net of dividends 0.5 1.2
Cumulative effect of accounting change 0.3 -
Provision for inventory valuation 5.3 5.4
Other 0.7 1.5
Changes in assets and liabilities:
Receivables (43.1) (50.6)
Inventories (3.7) (42.6)
Other current assets (3.1) (2.8)
Accounts payable 41.2 35.7
Accrued expenses 2.2 12.3
Other assets and liabilities (1.6) 1.1
Net cash flow from operating activities $11.4 ($23.4)
CASH FLOWS FROM INVESTING ACTIVITIES
Purchases of property, plant and equipment (8.6) (7.7)
Proceeds from sale of property, plant and equipme 0.3 0.3
Other (0.1) -
Net cash flow from investing activities ($8.4) ($7.4)
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from issuing debt - 29.5
Principal payments made on debt (4.2) -
Dividends paid (2.0) (2.0)
Other 0.1 0.2
Net cash flow from financing activities ($6.1) $27.7
Net effect of exchange rates on cash (0.2) (2.9)
Net increase (decrease) in cash and cash equivale (3.3) (6.0)
Cash and cash equivalents August 31 3.5 9.4
Cash and cash equivalents at the end of February $0.2 $3.4
Supplemental Cash Flow Information
Cash paid during the period for:
Income taxes $1.2 $0.8
Interest $3.6 $2.2
The accompanying notes are an integr
</TABLE>
<PAGE>
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. The consolidated financial statements included herein are presented in
accordance with the requirements of Form 10-Q and consequently do not
include all of the disclosures normally required by generally accepted
accounting principles or those normally made in the Company's annual Form
10-K filing. In order to facilitate a better comparison of the highly
seasonal seed operations of the Company, a Condensed Consolidated Balance
Sheet at February 28, 1993, is included herein as part of the condensed
consolidated financial statements.
The results presented are unaudited (other than the Condensed Consolidated
Balance Sheet at August 31, 1993, which is derived from the Company's
audited year-end balance sheet) but include, in the opinion of management,
all adjustments of a normal recurring nature necessary for a fair
statement of the results of operations and financial position for the
respective interim periods.
Certain costs and expenses incurred in the U.S. and international seed
businesses are charged against income as sales are recognized for interim
reporting purposes. The Company believes this method more closely matches
revenues with expenses and results in more comparability of reporting
periods within the year. Since there are only minor U.S. seed sales
recorded in the first and fourth quarters, this method defers first
quarter expenses related to sales which will occur later in the year,
primarily in the second quarter; it also anticipates expenses incurred in
the fourth quarter, primarily in the third quarter. Southern hemisphere
international seed sales occur largely in the first and second quarters
and this same method anticipates future expenses from the third and fourth
quarters and matches them against the first and second quarter revenues.
2. Inventories, valued at the lower of cost (principally LIFO and actual
cost) or market, were as follows:
(In millions)
February February August
1994 1993 1993
Commercial seed $102.0 $124.1 $104.7
Commercial poultry and swine 8.5 6.9 7.7
Supplies and other 4.3 4.3 4.1
$114.8 $135.3 $116.5
<PAGE>
<PAGE>
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(continued)
3. Foreign-currency assets and liabilities, except for operations in economies
historically experiencing hyperinflation, are translated into their U.S.
dollar equivalents based on rates of exchange prevailing at the end of the
respective period. Translation adjustments resulting from translating
foreign currency financial statements of consolidated subsidiaries into
their U.S. dollar equivalents are reported separately and accumulated in a
separate component of stockholders' equity. The following summarizes the
activity in the translation adjustment account:
(In millions)
February February
1994 1993
Balance at September 1 $(2.5) $(1.2)
Translation gain (loss) (0.3) (3.4)
Balance at end of February $(2.8) $(4.6)
Aggregate exchange gains and losses arising from the translation of foreign
currency transactions in other than the functional currency of the
particular entity are included in income. Translation gains or losses in
hyperinflationary economies are also included in income.
4. The Company and its subsidiaries are defendants in various legal actions
arising in the course of business activities. In the opinion of
management, these actions will not result in a material adverse effect on
the Company's consolidated operations or financial position.
Most potential property losses are self-insured.
5. In October 1993, the Board of Directors approved management's suspension of
the defined benefit portion of the Company's retirement program. The
cumulative effect of this curtailment through the second quarter of 1994
was a benefit of $1.6 million after-tax. Due to the Company's method of
annualizing seed segment expenses, the full effects of this benefit ($2.3
million after tax) will not be recognized until nine months results are
completed.
6. Effective September 1, 1993, the Company changed its method of accounting
for income taxes by adopting the provisions of Statement of Financial
Accounting Standards No. 109 (SFAS No. 109), "Accounting for Income Taxes".
SFAS 109 requires a change from the deferred method of accounting for
income taxes under APB Opinion 11 to the asset and liability method of
accounting for income taxes. Under the asset and liability method,
deferred tax assets and liabilities are recognized for the expected future
tax consequences attributable to differences between the financial
statement and tax bases of assets and liabilities using enacted tax rates
expected to apply in the years in which the temporary differences are
expected to reverse. As permitted by SFAS 109, the Company has elected not
to restate the financial statements of prior years.
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<PAGE>
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(continued)
The adoption of SFAS 109 resulted in the recognition of $0.3 million, or
$.05 per share, of deferred federal tax expense. This amount is included
as a charge to net income as the cumulative effect of change in accounting
principle.
The effective tax rate decreased from 35.2% in the first six months of
fiscal 1993 to 27.4% in the same period of fiscal 1994. For each interim
period, the tax rate is determined from an estimate of full year earnings
and the resultant tax. In fiscal 1994, the full year estimate included a
benefit associated with international seed losses incurred in prior years
but utilized in the current year.
7. In fiscal 1994, the Company classified royalty income as revenues rather
than non-operating income. Prior years have been restated to conform with
the current year presentation. In addition, certain other reclassifications
have been made for comparability purposes. The restatements had no effect
on net earnings.
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<AUDIT-REPORT>
Report of Independent Accountants
Board of Directors
DEKALB Genetics Corporation
We have made a review of the condensed consolidated balance sheets of DEKALB
Genetics Corporation as of February 28, 1994, and 1993, the related condensed
consolidated statements of operations for the three and six-month periods then
ended and the statements of cash flows for the six-month periods then ended in
accordance with standards established by the American Institute of Certified
Public Accountants.
A review of interim financial information consists principally of obtaining an
understanding of the system for the preparation of interim financial
information, applying analytical review procedures to financial data, and
making inquiries of persons responsible for financial and accounting matters.
It is substantially less in scope than an audit made in accordance with
generally accepted auditing standards, the objective of which is the
expression of an opinion regarding the consolidated financial statements taken
as a whole. Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material modifications that
should be made to the condensed consolidated financial statements referred to
above for them to be in conformity with generally accepted accounting
principles.
We have previously audited, in accordance with generally accepted auditing
standards, the consolidated balance sheet as of August 31, 1993, and the
related consolidated statements of operations and cash flows for the year then
ended (not presented herein), and in our report dated October 12, 1993, we
expressed an unqualified opinion on those consolidated financial statements.
In our opinion, the information set forth in the accompanying condensed
consolidated balance sheet as of August 31, 1993 is fairly presented, in all
material respects, in relation to the consolidated balance sheet from which it
has been derived.
COOPERS & LYBRAND
Chicago, Illinois
April 7, 1994
</AUDIT-REPORT>
<PAGE>
<PAGE>
Part II
OTHER INFORMATION
Item 1. Legal Proceedings
The Company and its subsidiaries are defendants in various legal actions
arising in the course of business activities. In the opinion of
management, these actions will not result in a material adverse effect on
the Company's consolidated operations or financial position.
Item 4. Submission of Matters to a Vote of Security Holders
The annual meeting of stockholders of the Company was held on Tuesday,
January 20, 1994. The stockholders elected three directors and the votes
were cast as follows:
For Withheld
Paul F. Cornelsen 619,668 12,091
Charles C. Roberts 619,438 12,231
Richard O. Ryan 619,635 12,124
There were no broker non-votes.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibit 10A - Employment Agreement between DEKALB Genetics
Corporation and Bruce P. Bickner
Exhibit 10B - Employment Agreement between DEKALB Genetics
Corporation and Richard O. Ryan
Exhibit 10C - Employment Agreement between DEKALB Genetics
Corporation and Thomas B. Rice
Exhibit 10D - Employment Agreement between DEKALB Genetics
Corporation and Bryon D. Ford
Exhibit 10E - Employment Agreement between DEKALB Genetics
Corporation and Roy L. Poage
Exhibit 11 - Computation of Net Earnings per Common and
Common Equivalent Share
Exhibit 15 - Letter Re Unaudited Interim Financial
Information
<PAGE>
<PAGE>
(b) Reports on Form 8-K -
No Form 8-K was filed during the three months ended February 28, 1994.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
DEKALB Genetics Corporation
Date: April 11, 1994 Thomas R. Rauman
(Signature)
Thomas R. Rauman
Vice President-Finance,
Chief Financial Officer
<PAGE>
<PAGE>
EMPLOYMENT AGREEMENT
THIS AGREEMENT is effective September 1, 1993, and made by and
between Bruce P. Bickner ("Employee") and DEKALB Genetics Corporation, a
Delaware corporation (the "Company").
WHEREAS, Employee is a key employee of the Company and he
acknowledges that Employee's talents and services to the Company are of a
special, unique, unusual and extraordinary character and are of particular
and peculiar benefit and importance to the Company; and
WHEREAS, the Company desires to obtain assurances that the
Employee will devote Employee's best efforts to Employee's employment with
the Company, that he will not compete with the Company and that he will not
solicit other employees of the Company to terminate their relationships
with the Company; and
WHEREAS, Employee is willing, in consideration for Employee's
employment with the Company, to provide the Company with such assurances
and to enter into and carry out this Agreement;
NOW, THEREFORE, the parties agree as follows:
1. Employment. The Company agrees to employ Employee in an
executive capacity as an officer of the Company, and Employee agrees to be
so employed by the Company, for a term commencing September 1, 1993, and
ending on August 31, 1994, subject, however, to prior termination as
provided herein. In the event the Company terminates Employee's employment
on or before August 31, 1994 or any August 31st thereafter for other than
cause, Employee shall, in addition to amounts otherwise due and owing under
this Agreement and in lieu of any other severance pay to which Employee may
be entitled, be entitled to termination pay which shall equal eighteen (18)
months base salary beginning with the next September 1 following such
termination. In the event the Company does not give the Employee notice of
termination of this Agreement on or before August 31, 1994 or any August
31st thereafter, the contract will be extended for an additional one year
period beginning September 1, 1994, or any September 1st thereafter.
2. Best Efforts and Other Employment of Employee.
A. Employee agrees that he will at all times faithfully,
industriously and to the best of Employee's ability, experience and
talents, perform all of the duties that may be required of and from
Employee pursuant to the express and implicit terms hereof to the
reasonable satisfaction of the Company. Such duties shall be rendered at
DeKalb, Illinois or at such other place or places within or without the
State of Illinois as the Company shall in good faith require or as the
interest, needs, business, or opportunities of the Company shall require.
<PAGE>
<PAGE>
B. Employee shall devote Employee's normal and regular
business time, attention, knowledge and skill to the business and interests
of the Company, and the Company shall be entitled to all of the benefits,
profits or other issue arising from or incident to all work, services and
advice of Employee performed for the Company. Employee shall have the
right to make investments in businesses which engage in activities other
than those engaged in by the Company from time to time. Employee shall
also have the right to devote such incidental and immaterial amounts of
Employee's time which are not required for the full and faithful
performance of Employee's duties hereunder to any outside activities and
businesses which are not being engaged in by the Company and which shall
not otherwise interfere with the performance of Employee's duties
hereunder.
3. Annual Compensation.
A. (1). The compensation to be paid for the services to be
rendered by Employees shall be as described in
Exhibit A , hereto. The payment of all such
amounts, including the payment of all severance
obligations, if any, shall constitute full
satisfaction and discharge of the obligations of
the Company under this Agreement, but without
prejudice to Employee's rights under any employee
benefit plan or incentive compensation plan
provided by the Company.
(2). Since this Agreement shall remain in effect until
amended or terminated, a new Exhibit A shall be
prepared, signed by the parties and attached to
this Agreement on a yearly basis. This Agreement
and the applicable Exhibit A shall be treated as
one agreement.
B. If Employee voluntarily terminates Employee's employment
with the Company, Employee shall not be entitled to, and shall not receive,
the cash bonus, if any, referred to in Exhibit A if he did not work for the
entire fiscal year. If Employee should die or become disabled and unable
to perform Employee's duties on or before August 31, 1994, or any
applicable subsequent August 31, he shall receive a cash bonus equal to the
cash bonus he would have received had he worked for the entire fiscal year
multiplied times a fraction, the numerator of which equals the number of
months transpiring between September 1, 1993, or any applicable subsequent
September 1, and the last day of the month during which the death or
disability occurred, and the denominator of which is twelve.
C. The Company shall pay Employees reasonable airline fares,
hotel bills and other necessary and proper expenses when traveling on, or
otherwise performing, the Company's business, provided that Employee
furnishes the Company with appropriate supporting documentation of such
expenses.
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4. Termination for Cause. Employee shall be deemed to have been
terminated by the Company for cause if he is terminated because of
Employee's acts or conduct which would make it unreasonable to require the
Company to retain Employee in its employment, such as, but not limited to,
embezzlement or misappropriation of corporate funds, other acts of
dishonesty, improper disclosure of any information concerning any matter
affecting or relating to the Company or the business of the Company,
activities harmful to the reputation of the Company, refusal to perform or
neglect of the substantive duties properly assigned to Employee, a
violation of any contractual, statutory or common law duty of loyalty to
the Company or breach of any of the provisions of this Agreement. If
Employee is terminated for cause, he shall be entitled to no severance pay
and shall be entitled to no bonus payment that might otherwise be owed to
Employee even if he worked for the entire year.
5. Solicitation of Employees. For a period of three (3) years after
he is no longer employed by the Company, the Employee will not, directly,
or indirectly, either as an individual, proprietor, stockholder, partner,
officer, director, employee or otherwise, solicit any officer, director,
employee or other individual:
A. to leave his or her employment or position with the
Company,
B. to compete with the business of the Company, or
C. to violate the terms of any employment, noncompetition or
similar agreement with the Company.
For purposes of this Paragraph 5, references to the business of
the Company shall include the business of any subsidiary or affiliate of
the Company.
6. Confidentiality. The Employee will not at any time during or
after Employee's employment by the Company, directly or indirectly,
divulge, disclose or communicate to any person, firm or corporation in any
manner whatsoever, other than in the normal course of performing Employee's
duties for the Company, any information concerning any matter affecting or
relating to the Company or the business of the Company. While engaged as
an employee of the Company, the Employee may only use information
concerning any matters affecting or relating to the Company or the business
of the Company for a purpose which is necessary to the carrying out of the
Employee's duties as an employee of the Company, and the Employee may not
make use of any information of the Company after he is no longer an
employee of the Company. The Employee agrees to the foregoing without
regard to whether all of the foregoing matters will be deemed confidential,
material or important, it being stipulated by the parties that all
information, whether written or otherwise, regarding the Company's
business, including but not limited to, information regarding customers,
customer lists, employees, employee salaries, costs, prices, earnings, any
financial or cost accounting reports, products, services, research
programs, pedigrees, formulae, compositions, patents, machines, equipment,
apparatus, systems, manufacturing or production procedures, operations,
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potential acquisitions, new location plans, prospective and executed
contracts and other business arrangements, and sources of supply, is
presumed to be important, material and confidential information of the
Company for purposes of this Agreement, except to the extent that such
information may be otherwise lawfully and readily available to the general
public. Employee agrees that all such information is a trade secret owned
exclusively by the Company which shall at all times be kept confidential.
The Employee further agrees that he will, upon termination of Employee's
employment with the Company, return to the Company all books, records,
lists and other written, typed or printed materials, including information
in computers or computer disks, whether furnished by the Company or
prepared by the Employee, which contain any information relating to the
Company's business, and the Employee agrees that he will neither make nor
retain any copies of such materials after termination of employment. For
purposes of this Paragraph 6, references to the business or information of
or relating to the Company shall include the information or business of any
subsidiary or affiliate of the Company.
7. Business Opportunities and Inventions.
A. Employee shall make full and prompt written disclosure to
the Company or its nominee of any business opportunity of which he becomes
aware and which relates to the business of the Company or any of its
subsidiaries or affiliates; and
B. (1) Employee will make full and prompt written
disclosure to the Company or its nominee of all inventions, discoveries,
developments, improvements and innovations ("Inventions") whether
patentable or not, conceived or made by Employee, either solely or in
concert with others during the period of Employee's employment with the
Company, including, but not limited to, any period prior to the date of
this Agreement, whether or not made or conceived during working hours
which:
(a) relate in any manner to the existing or
contemplated business or research
activities of the Company, or
(b) are suggested by or result from Employee's
work at the Company, or
(c) result from the use of the Company's time,
materials or facilities,
and Employee acknowledges that all such Inventions shall be the exclusive
property of the Company.
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(2) Employee hereby assigns to the Company Employee's
entire right, title and interest to all such Inventions which are the
property of the Company under the provisions of Subparagraph 7(B)(1) of
this Agreement and to all unpatented Inventions generated during the period
of Employee's employment with the Company which he now owns and Employee
will, at the Company's request and expense, execute specific assignments to
any such Inventions and execute, acknowledge and deliver such other
documents and take such further action as may be considered necessary by
the Company at any time during or subsequent to the period of Employee's
employment with the Company to obtain and defend letters patent in any and
all countries and to vest title in such Inventions in the Company or its
assigns.
(3) Employee agrees that an Invention conceived by
Employee or described in a patent application filed by Employee or on
Employee's behalf within twelve months following the period of Employee's
employment with the Company shall be presumed to have been conceived or
made by Employee during the period of Employee's employment with the
Company unless proven to have been conceived and made by Employee following
the termination of employment with the Company. For purposes of this
Subparagraph 7(B)(3), witnessed documentation of the Invention shall
constitute such proof and shall shift the burden of proof concerning the
time of conception of such Invention to the Company.
8. Noncompetition Covenant.
A. Employee covenants and agrees that for a period extending
from the effective date of this Agreement and until that date which is
twenty-four (24) months after the effective date of the termination of
Employee's employment with the Company hereunder (whether such termination
shall have been voluntary or involuntary on the part of the Employee),
Employee will not (without the prior written consent of the Company)
directly or indirectly, either individually or as an employee, agent,
partner, shareholder, director, officer, consultant or in any other
capacity, participate in or have a financial, management or other interest
in any business enterprise anywhere in the world that engages in (or within
twenty-four (24) months of the termination of Employee's employment has
plans to engage in) substantial and direct competition with any business
operation actively conducted by the Company or it subsidiaries or
affiliates, or any of their successors or assigns, if the Employee actively
participated in such business operation of the Company or had awareness of
such business operation of the Company during Employee's employment. The
ownership of less than one percent of the outstanding debt or equity in a
corporation whose shares are traded on a recognized stock exchange or in
the over-the-counter market, even though that corporation may be a
competitor of the Company or any of its affiliates or subsidiaries, shall
not constitute a breach of this Agreement.
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<PAGE>
B. The Company acknowledges that it would be appropriate to
compensate Employee during the period of time between the effective date of
Employee's termination of Employee's employment with the Company and the
end of the noncompetition period. To that end, the Company shall pay
Employee one month's base pay (at the rate in effect on Employee's
termination date) for every one month during the noncompetition period;
provided that, the Company shall make no payment to Employee pursuant to
this Subparagraph 8(B) for any month during which a payment can be deemed
to have been paid pursuant to Paragraph 1, above.
C. Employee acknowledges and agrees that the period of time
and the geographic scope specified with respect to Employee's aforesaid
covenant not to compete is the minimum period of time and geographic area
necessary to reasonably and adequately protect the Company and its
affiliates in the continued operation of their business and affairs, and in
the use and enjoyment of their assets, properties and property rights.
Employee further acknowledges that the compensation provided in
Subparagraph 8(B) hereof will adequately compensate Employee during his
transition to new employment.
D. If and to the extent that any part of the noncompetition
covenant set forth above shall be deemed by the court in which a suit is
brought to be unenforceable as written, by reason of it scope in terms of
area or length of time, but may be made enforceable by reducing the area or
period of time applicable to such covenant, Employee and the Company
stipulate and agree that such covenant shall automatically be deemed to be
amended for all purposes of such suit so as to incorporate the aforesaid
reduction in area, or duration of time, or both, to the end that such
covenant, as modified in connection with such suit, shall be enforceable to
the fullest extent permissible in such jurisdiction.
E. Employee and the Company acknowledge that there may be
times when the Company may consider it to be appropriate to waive all or
part of the agreement that Employee not compete with the Company. In such
event, the Company may, at its option, waive all or part of the time period
specified in Subparagraph 8(A) during which Employee is not permitted to
compete. The compensation provided in Subparagraph 8(B) shall be reduced
to the same extent as the noncompetition period is reduced; provided that
this reduction in compensation shall not reduce the compensation which may
be owed to Employee pursuant to Paragraph 1.
9. Resolution of Disputes Regarding Termination. Employee shall not
initiate legal proceedings against the Company, or any of its directors,
officers, employees, agents or representatives relating in any way to this
Agreement, to Employee's employment with the Company, or the termination of
Employee's employment until 30 days after the Company receives written
notice from Employee of the specific nature of any purported claim against
the Company and the amount of any purported damages. Employee further
agrees that if the Company submits Employee's claim to the Center for
Public Resources, 680 Fifth Avenue, New York, New York 10019, for
nonbinding mediation prior to the expiration of such 30 day period,
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<PAGE>
Employee may not institute legal proceedings against the Company until the
earlier of: a) the completion of nonbinding mediation efforts, or b) 90
days after the date on which the Company received written notice of
Employee's claim. Employee and the Company agree that all mediation
sessions shall take place in Chicago or in such other place as Employee and
the Company mutually agree.
10. Early Termination. In the event Employee's employment shall end
with the Company prior to the termination date provided herein, or in the
event Employee shall act in violation of the provisions of Paragraphs 5, 6,
7 or 8 of this Agreement or otherwise breach this Agreement, Employee shall
be subject to any and all of the penalties contained in, or legal and
equitable remedies available to the Company resulting from, this Agreement.
11. Modification. If, in any action before any court or agency
legally empowered to enforce such covenants, any term, restriction,
covenant or promise contained herein is found to be unreasonable, unlawful
or otherwise invalid and for that reason unenforceable, then such term,
restriction, covenant or promise shall be deemed modified to the extent
necessary to make it enforceable by such court or agency.
12. Remedies; Survival of Employee's Covenants. Without limiting the
rights of the Company to pursue all other legal and equitable rights
available to them for any violation of the covenants of Employee herein, it
is agreed that: (a) the services to be rendered by Employee under this
Agreement are of a special, unique, unusual and extraordinary character
which give them a peculiar value, and the loss of such services cannot be
reasonably and adequately compensated in damages in an action at law, and
(b) remedies other than injunctive relief cannot fully compensate the
Company for violation of Paragraphs 5, 6, 7 or 8 of this Agreement;
accordingly, the Company shall be entitled to injunctive relief to prevent
violations of such paragraphs or continuing violations thereof. All of
Employee's covenants in and obligations under Paragraphs 5, 6, 7 and 8 of
this Agreement shall continue in effect notwithstanding any termination of
Employee's employment, whether by the Company or by Employee, upon
expiration or otherwise, and whether or not pursuant to the terms of this
Agreement.
13. Life Insurance. The Company shall have the right, at its own
expense and for its own benefit, to take out life insurance on Employee in
such amount or amounts as it shall see fit, and Employee agrees to
cooperate with the Company in obtaining such insurance.
14. Designation of Beneficiary. Employee may, by written instrument
delivered to the Company, designate a beneficiary or beneficiaries to
receive any payments to which he may be entitled under Paragraph 3 which
become payable following Employee's death, and may at any time or from time
to time change such designated beneficiary by similar written instrument,
and the Company shall be fully protected in making any such payments to
such designated beneficiary. In the event of Employee's death when no such
beneficiary designation is in effect, the Company shall make payment of any
amounts to which Employee was entitled following Employee's death to
Employee's personal representative, heirs, devisees or legatees.
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<PAGE>
15. DEKALB Antitrust Compliance Policy and Business Conduct
Standards. Employee acknowledges that he has received a copy of both the
DEKALB Antitrust Compliance Policy and the DEKALB Business Conduct
Standards adopted by the Board of Directors of DEKALB at its meeting on May
15, 1990. Employee shall to the best of Employee's belief and ability,
adhere to the policies and principles contained therein, and will require
all appropriate employees reporting to Employee to adhere to those policies
and principles.
16. Successors and Assigns; Parties in Interest. This Agreement
shall be binding upon the Company, its successors and assigns and upon
Employee, Employee's heirs, executors and administrators.
17. Notices. Notices contemplated by this Agreement shall be in
writing and shall be deemed given when delivered in person or mailed
registered first class mail postage prepaid, to the Company at 3100
Sycamore Road, DeKalb, IL 60115 or to Employee at 11702 Deerpath Road,
Sycamore, IL 60178.
18. Integration. This Agreement, including Exhibit A as it may be
amended from time to time, as well as all confidentiality agreements signed
by Employee during his employment with the Company, contain the entire
agreement between the parties hereto with respect to the transactions
contemplated herein, supercedes all prior negotiations and agreements, both
oral and written, between the parties and cannot be amended, supplemented
or modified except by an instrument in writing signed by all parties.
19. Headings. The headings in this Agreement are inserted for
convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, this Agreement is entered into effective as
of the date set forth above.
DEKALB Genetics Corporation
By:
Employee
<PAGE>
<PAGE>
EMPLOYMENT AGREEMENT
THIS AGREEMENT is effective September 1, 1993, and made by and
between Richard O. Ryan ("Employee") and DEKALB Genetics Corporation, a
Delaware corporation (the "Company").
WHEREAS, Employee is a key employee of the Company and he
acknowledges that Employee's talents and services to the Company are of a
special, unique, unusual and extraordinary character and are of particular
and peculiar benefit and importance to the Company; and
WHEREAS, the Company desires to obtain assurances that the
Employee will devote Employee's best efforts to Employee's employment with
the Company, that he will not compete with the Company and that he will not
solicit other employees of the Company to terminate their relationships
with the Company; and
WHEREAS, Employee is willing, in consideration for Employee's
employment with the Company, to provide the Company with such assurances
and to enter into and carry out this Agreement;
NOW, THEREFORE, the parties agree as follows:
1. Employment. The Company agrees to employ Employee in an
executive capacity as an officer of the Company, and Employee agrees to be
so employed by the Company, for a term commencing September 1, 1993, and
ending on August 31, 1994, subject, however, to prior termination as
provided herein. In the event the Company terminates Employee's employment
on or before August 31, 1994 or any August 31st thereafter for other than
cause, Employee shall, in addition to amounts otherwise due and owing under
this Agreement and in lieu of any other severance pay to which Employee may
be entitled, be entitled to termination pay which shall equal eighteen (18)
months base salary beginning with the next September 1 following such
termination. In the event the Company does not give the Employee notice of
termination of this Agreement on or before August 31, 1994 or any August
31st thereafter, the contract will be extended for an additional one year
period beginning September 1, 1994, or any September 1st thereafter.
2. Best Efforts and Other Employment of Employee.
A. Employee agrees that he will at all times faithfully,
industriously and to the best of Employee's ability, experience and
talents, perform all of the duties that may be required of and from
Employee pursuant to the express and implicit terms hereof to the
reasonable satisfaction of the Company. Such duties shall be rendered at
DeKalb, Illinois or at such other place or places within or without the
State of Illinois as the Company shall in good faith require or as the
interest, needs, business, or opportunities of the Company shall require.
B. Employee shall devote Employee's normal and regular
business time, attention, knowledge and skill to the business and interests
of the Company, and the Company shall be entitled to all of the benefits,
profits or other issue arising from or incident to all work, services and
advice of Employee performed for the Company. Employee shall have the
right to make investments in businesses which engage in activities other
than those engaged in by the Company from time to time. Employee shall
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<PAGE>
also have the right to devote such incidental and immaterial amounts of
Employee's time which are not required for the full and faithful
performance of Employee's duties hereunder to any outside activities and
businesses which are not being engaged in by the Company and which shall
not otherwise interfere with the performance of Employee's duties
hereunder.
3. Annual Compensation.
A. (1). The compensation to be paid for the services to be
rendered by Employees shall be as described in
Exhibit A , hereto. The payment of all such
amounts, including the payment of all severance
obligations, if any, shall constitute full
satisfaction and discharge of the obligations of
the Company under this Agreement, but without
prejudice to Employee's rights under any employee
benefit plan or incentive compensation plan
provided by the Company.
(2). Since this Agreement shall remain in effect until
amended or terminated, a new Exhibit A shall be
prepared, signed by the parties and attached to
this Agreement on a yearly basis. This Agreement
and the applicable Exhibit A shall be treated as
one agreement.
B. If Employee voluntarily terminates Employee's employment
with the Company, Employee shall not be entitled to, and shall not receive,
the cash bonus, if any, referred to in Exhibit A if he did not work for the
entire fiscal year. If Employee should die or become disabled and unable
to perform Employee's duties on or before August 31, 1994, or any
applicable subsequent August 31, he shall receive a cash bonus equal to the
cash bonus he would have received had he worked for the entire fiscal year
multiplied times a fraction, the numerator of which equals the number of
months transpiring between September 1, 1993, or any applicable subsequent
September 1, and the last day of the month during which the death or
disability occurred, and the denominator of which is twelve.
C. The Company shall pay Employees reasonable airline fares,
hotel bills and other necessary and proper expenses when traveling on, or
otherwise performing, the Company's business, provided that Employee
furnishes the Company with appropriate supporting documentation of such
expenses.
4. Termination for Cause. Employee shall be deemed to have been
terminated by the Company for cause if he is terminated because of
Employee's acts or conduct which would make it unreasonable to require the
Company to retain Employee in its employment, such as, but not limited to,
embezzlement or misappropriation of corporate funds, other acts of
dishonesty, improper disclosure of any information concerning any matter
affecting or relating to the Company or the business of the Company,
activities harmful to the reputation of the Company, refusal to perform or
neglect of the substantive duties properly assigned to Employee, a
violation of any contractual, statutory or common law duty of loyalty to
the Company or breach of any of the provisions of this Agreement. If
Employee is terminated for cause, he shall be entitled to no severance pay
and shall be entitled to no bonus payment that might otherwise be owed to
Employee even if he worked for the entire year.
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5. Solicitation of Employees. For a period of three (3) years after
he is no longer employed by the Company, the Employee will not, directly,
or indirectly, either as an individual, proprietor, stockholder, partner,
officer, director, employee or otherwise, solicit any officer, director,
employee or other individual:
A. to leave his or her employment or position with the
Company,
B. to compete with the business of the Company, or
C. to violate the terms of any employment, noncompetition or
similar agreement with the Company.
For purposes of this Paragraph 5, references to the business of
the Company shall include the business of any subsidiary or affiliate of
the Company.
6. Confidentiality. The Employee will not at any time during or
after Employee's employment by the Company, directly or indirectly,
divulge, disclose or communicate to any person, firm or corporation in any
manner whatsoever, other than in the normal course of performing Employee's
duties for the Company, any information concerning any matter affecting or
relating to the Company or the business of the Company. While engaged as
an employee of the Company, the Employee may only use information
concerning any matters affecting or relating to the Company or the business
of the Company for a purpose which is necessary to the carrying out of the
Employee's duties as an employee of the Company, and the Employee may not
make use of any information of the Company after he is no longer an
employee of the Company. The Employee agrees to the foregoing without
regard to whether all of the foregoing matters will be deemed confidential,
material or important, it being stipulated by the parties that all
information, whether written or otherwise, regarding the Company's
business, including but not limited to, information regarding customers,
customer lists, employees, employee salaries, costs, prices, earnings, any
financial or cost accounting reports, products, services, research
programs, pedigrees, formulae, compositions, patents, machines, equipment,
apparatus, systems, manufacturing or production procedures, operations,
potential acquisitions, new location plans, prospective and executed
contracts and other business arrangements, and sources of supply, is
presumed to be important, material and confidential information of the
Company for purposes of this Agreement, except to the extent that such
information may be otherwise lawfully and readily available to the general
public. Employee agrees that all such information is a trade secret owned
exclusively by the Company which shall at all times be kept confidential.
The Employee further agrees that he will, upon termination of Employee's
employment with the Company, return to the Company all books, records,
lists and other written, typed or printed materials, including information
in computers or computer disks, whether furnished by the Company or
prepared by the Employee, which contain any information relating to the
Company's business, and the Employee agrees that he will neither make nor
retain any copies of such materials after termination of employment. For
purposes of this Paragraph 6, references to the business or information of
or relating to the Company shall include the information or business of any
subsidiary or affiliate of the Company.
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7. Business Opportunities and Inventions.
A. Employee shall make full and prompt written disclosure to
the Company or its nominee of any business opportunity of which he becomes
aware and which relates to the business of the Company or any of its
subsidiaries or affiliates; and
B. (1) Employee will make full and prompt written
disclosure to the Company or its nominee of all inventions, discoveries,
developments, improvements and innovations ("Inventions") whether
patentable or not, conceived or made by Employee, either solely or in
concert with others during the period of Employee's employment with the
Company, including, but not limited to, any period prior to the date of
this Agreement, whether or not made or conceived during working hours
which:
(a) relate in any manner to the existing or
contemplated business or research
activities of the Company, or
(b) are suggested by or result from Employee's
work at the Company, or
(c) result from the use of the Company's time,
materials or facilities,
and Employee acknowledges that all such Inventions shall be the exclusive
property of the Company.
(2) Employee hereby assigns to the Company Employee's
entire right, title and interest to all such Inventions which are the
property of the Company under the provisions of Subparagraph 7(B)(1) of
this Agreement and to all unpatented Inventions generated during the period
of Employee's employment with the Company which he now owns and Employee
will, at the Company's request and expense, execute specific assignments to
any such Inventions and execute, acknowledge and deliver such other
documents and take such further action as may be considered necessary by
the Company at any time during or subsequent to the period of Employee's
employment with the Company to obtain and defend letters patent in any and
all countries and to vest title in such Inventions in the Company or its
assigns.
(3) Employee agrees that an Invention conceived by
Employee or described in a patent application filed by Employee or on
Employee's behalf within twelve months following the period of Employee's
employment with the Company shall be presumed to have been conceived or
made by Employee during the period of Employee's employment with the
Company unless proven to have been conceived and made by Employee following
the termination of employment with the Company. For purposes of this
Subparagraph 7(B)(3), witnessed documentation of the Invention shall
constitute such proof and shall shift the burden of proof concerning the
time of conception of such Invention to the Company.
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8. Noncompetition Covenant.
A. Employee covenants and agrees that for a period extending
from the effective date of this Agreement and until that date which is
twenty-four (24) months after the effective date of the termination of
Employee's employment with the Company hereunder (whether such termination
shall have been voluntary or involuntary on the part of the Employee),
Employee will not (without the prior written consent of the Company)
directly or indirectly, either individually or as an employee, agent,
partner, shareholder, director, officer, consultant or in any other
capacity, participate in or have a financial, management or other interest
in any business enterprise anywhere in the world that engages in (or within
twenty-four (24) months of the termination of Employee's employment has
plans to engage in) substantial and direct competition with any business
operation actively conducted by the Company or it subsidiaries or
affiliates, or any of their successors or assigns, if the Employee actively
participated in such business operation of the Company or had awareness of
such business operation of the Company during Employee's employment. The
ownership of less than one percent of the outstanding debt or equity in a
corporation whose shares are traded on a recognized stock exchange or in
the over-the-counter market, even though that corporation may be a
competitor of the Company or any of its affiliates or subsidiaries, shall
not constitute a breach of this Agreement.
B. The Company acknowledges that it would be appropriate to
compensate Employee during the period of time between the effective date of
Employee's termination of Employee's employment with the Company and the
end of the noncompetition period. To that end, the Company shall pay
Employee one month's base pay (at the rate in effect on Employee's
termination date) for every one month during the noncompetition period;
provided that, the Company shall make no payment to Employee pursuant to
this Subparagraph 8(B) for any month during which a payment can be deemed
to have been paid pursuant to Paragraph 1, above.
C. Employee acknowledges and agrees that the period of time
and the geographic scope specified with respect to Employee's aforesaid
covenant not to compete is the minimum period of time and geographic area
necessary to reasonably and adequately protect the Company and its
affiliates in the continued operation of their business and affairs, and in
the use and enjoyment of their assets, properties and property rights.
Employee further acknowledges that the compensation provided in
Subparagraph 8(B) hereof will adequately compensate Employee during his
transition to new employment.
D. If and to the extent that any part of the noncompetition
covenant set forth above shall be deemed by the court in which a suit is
brought to be unenforceable as written, by reason of it scope in terms of
area or length of time, but may be made enforceable by reducing the area or
period of time applicable to such covenant, Employee and the Company
stipulate and agree that such covenant shall automatically be deemed to be
amended for all purposes of such suit so as to incorporate the aforesaid
reduction in area, or duration of time, or both, to the end that such
covenant, as modified in connection with such suit, shall be enforceable to
the fullest extent permissible in such jurisdiction.
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<PAGE>
E. Employee and the Company acknowledge that there may be
times when the Company may consider it to be appropriate to waive all or
part of the agreement that Employee not compete with the Company. In such
event, the Company may, at its option, waive all or part of the time period
specified in Subparagraph 8(A) during which Employee is not permitted to
complete. The compensation provided in Subparagraph 8(B) shall be reduced
to the same extent as the noncompetition period is reduced; provided that
this reduction in compensation shall not reduce the compensation which may
be owed to Employee pursuant to Paragraph 1.
9. Resolution of Disputes Regarding Termination. Employee shall not
initiate legal proceedings against the Company, or any of its directors,
officers, employees, agents or representatives relating in any way to this
Agreement, to Employee's employment with the Company, or the termination of
Employee's employment until 30 days after the Company receives written
notice from Employee of the specific nature of any purported claim against
the Company and the amount of any purported damages. Employee further
agrees that if the Company submits Employee's claim to the Center for
Public Resources, 680 Fifth Avenue, New York, New York 10019, for
nonbinding mediation prior to the expiration of such 30 day period,
Employee may not institute legal proceedings against the Company until the
earlier of: a) the completion of nonbinding mediation efforts, or b) 90
days after the date on which the Company received written notice of
Employee's claim. Employee and the Company agree that all mediation
sessions shall take place in Chicago or in such other place as Employee and
the Company mutually agree.
10. Early Termination. In the event Employee's employment shall end
with the Company prior to the termination date provided herein, or in the
event Employee shall act in violation of the provisions of Paragraphs 5, 6,
7 or 8 of this Agreement or otherwise breach this Agreement, Employee shall
be subject to any and all of the penalties contained in, or legal and
equitable remedies available to the Company resulting from, this Agreement.
11. Modification. If, in any action before any court or agency
legally empowered to enforce such covenants, any term, restriction,
covenant or promise contained herein is found to be unreasonable, unlawful
or otherwise invalid and for that reason unenforceable, then such term,
restriction, covenant or promise shall be deemed modified to the extent
necessary to make it enforceable by such court or agency.
12. Remedies; Survival of Employee's Covenants. Without limiting the
rights of the Company to pursue all other legal and equitable rights
available to them for any violation of the covenants of Employee herein, it
is agreed that: (a) the services to be rendered by Employee under this
Agreement are of a special, unique, unusual and extraordinary character
which give them a peculiar value, and the loss of such services cannot be
reasonably and adequately compensated in damages in an action at law, and
(b) remedies other than injunctive relief cannot fully compensate the
Company for violation of Paragraphs 5, 6, 7 or 8 of this Agreement;
accordingly, the Company shall be entitled to injunctive relief to prevent
violations of such paragraphs or continuing violations thereof. All of
Employee's covenants in and obligations under Paragraphs 5, 6, 7 and 8 of
this Agreement shall continue in effect notwithstanding any termination of
Employee's employment, whether by the Company or by Employee, upon
expiration or otherwise, and whether or not pursuant to the terms of this
Agreement.
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<PAGE>
13. Life Insurance. The Company shall have the right, at its own
expense and for its own benefit, to take out life insurance on Employee in
such amount or amounts as it shall see fit, and Employee agrees to
cooperate with the Company in obtaining such insurance.
14. Designation of Beneficiary. Employee may, by written instrument
delivered to the Company, designate a beneficiary or beneficiaries to
receive any payments to which he may be entitled under Paragraph 3 which
become payable following Employee's death, and may at any time or from time
to time change such designated beneficiary by similar written instrument,
and the Company shall be fully protected in making any such payments to
such designated beneficiary. In the event of Employee's death when no such
beneficiary designation is in effect, the Company shall make payment of any
amounts to which Employee was entitled following Employee's death to
Employee's personal representative, heirs, devisees or legatees.
15. DEKALB Antitrust Compliance Policy and Business Conduct
Standards. Employee acknowledges that he has received a copy of both the
DEKALB Antitrust Compliance Policy and the DEKALB Business Conduct
Standards adopted by the Board of Directors of DEKALB at its meeting on May
15, 1990. Employee shall to the best of Employee's belief and ability,
adhere to the policies and principles contained therein, and will require
all appropriate employees reporting to Employee to adhere to those policies
and principles.
16. Successors and Assigns; Parties in Interest. This Agreement
shall be binding upon the Company, its successors and assigns and upon
Employee, Employee's heirs, executors and administrators.
17. Notices. Notices contemplated by this Agreement shall be in
writing and shall be deemed given when delivered in person or mailed
registered first class mail postage prepaid, to the Company at 3100
Sycamore Road, DeKalb, IL 60115 or to Employee at 135 Thornbrook Road,
DeKalb, IL 60115.
18. Integration. This Agreement, including Exhibit A as it may be
amended from time to time, as well as all confidentiality agreements signed
by Employee during his employment with the Company, contain the entire
agreement between the parties hereto with respect to the transactions
contemplated herein, supercedes all prior negotiations and agreements, both
oral and written, between the parties and cannot be amended, supplemented
or modified except by an instrument in writing signed by all parties.
19. Headings. The headings in this Agreement are inserted for
convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, this Agreement is entered into effective as
of the date set forth above.
DEKALB Genetics Corporation
By:
Employee
<PAGE>
<PAGE>
EMPLOYMENT AGREEMENT
THIS AGREEMENT is effective September 1, 1993, and made by and
between Thomas B. Rice ("Employee") and DEKALB Genetics Corporation, a
Delaware corporation (the "Company").
WHEREAS, Employee is a key employee of the Company and he
acknowledges that Employee's talents and services to the Company are of a
special, unique, unusual and extraordinary character and are of particular
and peculiar benefit and importance to the Company; and
WHEREAS, the Company desires to obtain assurances that the
Employee will devote Employee's best efforts to Employee's employment with
the Company, that he will not compete with the Company and that he will not
solicit other employees of the Company to terminate their relationships
with the Company; and
WHEREAS, Employee is willing, in consideration for Employee's
employment with the Company, to provide the Company with such assurances
and to enter into and carry out this Agreement;
NOW, THEREFORE, the parties agree as follows:
1. Employment. The Company agrees to employ Employee in an
executive capacity as an officer of the Company, and Employee agrees to be
so employed by the Company, commencing September 1, 1993. In the event the
Company terminates Employee's employment for other than cause, Employee
shall, in addition to amounts otherwise due and owing under this Agreement
and in lieu of any other severance pay to which Employee may be entitled,
be entitled to termination pay which shall equal eighteen (18) months base
salary beginning with the date of termination.
2. Best Efforts and Other Employment of Employee.
A. Employee agrees that he will at all times faithfully,
industriously and to the best of Employee's ability, experience and
talents, perform all of the duties that may be required of and from
Employee pursuant to the express and implicit terms hereof to the
reasonable satisfaction of the Company. Such duties shall be rendered at
DeKalb, Illinois or at such other place or places within or without the
State of Illinois as the Company shall in good faith require or as the
interest, needs, business, or opportunities of the Company shall require.
B. Employee shall devote Employee's normal and regular
business time, attention, knowledge and skill to the business and interests
of the Company, and the Company shall be entitled to all of the benefits,
profits or other issue arising from or incident to all work, services and
advice of Employee performed for the Company. Employee shall have the
right to make investments in businesses which engage in activities other
than those engaged in by the Company from time to time. Employee shall
also have the right to devote such incidental and immaterial amounts of
Employee's time which are not required for the full and faithful
performance of Employee's duties hereunder to any outside activities and
businesses which are not being engaged in by the Company and which shall
not otherwise interfere with the performance of Employee's duties
hereunder.
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<PAGE>
3. Annual Compensation.
A. (1). The compensation to be paid for the services to be
rendered by Employees shall be as described in
Exhibit A , hereto. The payment of all such
amounts, including the payment of all severance
obligations, if any, shall constitute full
satisfaction and discharge of the obligations of
the Company under this Agreement, but without
prejudice to Employee's rights under any employee
benefit plan or incentive compensation plan
provided by the Company.
(2). Since this Agreement shall remain in effect until
amended or terminated, a new Exhibit A shall be
prepared, signed by the parties and attached to
this Agreement on a yearly basis. This Agreement
and the applicable Exhibit A shall be treated as
one agreement.
B. If Employee voluntarily terminates Employee's employment
with the Company, Employee shall not be entitled to, and shall not receive,
the cash bonus, if any, referred to in Exhibit A if he did not work for the
entire fiscal year. If Employee should die or become disabled and unable
to perform Employee's duties on or before August 31, 1994, or any
applicable subsequent August 31, he shall receive a cash bonus equal to the
cash bonus he would have received had he worked for the entire fiscal year
multiplied times a fraction, the numerator of which equals the number of
months transpiring between September 1, 1993, or any applicable subsequent
September 1, and the last day of the month during which the death or
disability occurred, and the denominator of which is twelve.
C. The Company shall pay Employees reasonable airline fares,
hotel bills and other necessary and proper expenses when traveling on, or
otherwise performing, the Company's business, provided that Employee
furnishes the Company with appropriate supporting documentation of such
expenses.
4. Termination for Cause. Employee shall be deemed to have been
terminated by the Company for cause if he is terminated because of
Employee's acts or conduct which would make it unreasonable to require the
Company to retain Employee in its employment, such as, but not limited to,
embezzlement or misappropriation of corporate funds, other acts of
dishonesty, improper disclosure of any information concerning any matter
affecting or relating to the Company or the business of the Company,
activities harmful to the reputation of the Company, refusal to perform or
neglect of the substantive duties properly assigned to Employee, a
violation of any contractual, statutory or common law duty of loyalty to
the Company or breach of any of the provisions of this Agreement. If
Employee is terminated for cause, he shall be entitled to no severance pay
and shall be entitled to no bonus payment that might otherwise be owed to
Employee even if he worked for the entire year.
5. Solicitation of Employees. For a period of three (3) years after
he is no longer employed by the Company, the Employee will not, directly,
or indirectly, either as an individual, proprietor, stockholder, partner,
officer, director, employee or otherwise, solicit any officer, director,
employee or other individual:
<PAGE>
<PAGE>
A. to leave his or her employment or position with the Company,
B. to compete with the business of the Company, or
C. to violate the terms of any employment, noncompetition or similar
agreement with the Company.
For purposes of this Paragraph 5, references to the business of
the Company shall include the business of any subsidiary or affiliate of
the Company.
6. Confidentiality. The Employee will not at any time during or
after Employee's employment by the Company, directly or indirectly,
divulge, disclose or communicate to any person, firm or corporation in any
manner whatsoever, other than in the normal course of performing Employee's
duties for the Company, any information concerning any matter affecting or
relating to the Company or the business of the Company. While engaged as
an employee of the Company, the Employee may only use information
concerning any matters affecting or relating to the Company or the business
of the Company for a purpose which is necessary to the carrying out of the
Employee's duties as an employee of the Company, and the Employee may not
make use of any information of the Company after he is no longer an
employee of the Company. The Employee agrees to the foregoing without
regard to whether all of the foregoing matters will be deemed confidential,
material or important, it being stipulated by the parties that all
information, whether written or otherwise, regarding the Company's
business, including but not limited to, information regarding customers,
customer lists, employees, employee salaries, costs, prices, earnings, any
financial or cost accounting reports, products, services, research
programs, pedigrees, formulae, compositions, patents, machines, equipment,
apparatus, systems, manufacturing or production procedures, operations,
potential acquisitions, new location plans, prospective and executed
contracts and other business arrangements, and sources of supply, is
presumed to be important, material and confidential information of the
Company for purposes of this Agreement, except to the extent that such
information may be otherwise lawfully and readily available to the general
public. Employee agrees that all such information is a trade secret owned
exclusively by the Company which shall at all times be kept confidential.
The Employee further agrees that he will, upon termination of Employee's
employment with the Company, return to the Company all books, records,
lists and other written, typed or printed materials, including information
in computers or computer disks, whether furnished by the Company or
prepared by the Employee, which contain any information relating to the
Company's business, and the Employee agrees that he will neither make nor
retain any copies of such materials after termination of employment. For
purposes of this Paragraph 6, references to the business or information of
or relating to the Company shall include the information or business of any
subsidiary or affiliate of the Company.
7. Business Opportunities and Inventions.
A. Employee shall make full and prompt written disclosure to
the Company or its nominee of any business opportunity of which he becomes
aware and which relates to the business of the Company or any of its
subsidiaries or affiliates; and
<PAGE>
<PAGE>
B. (1) Employee will make full and prompt written
disclosure to the Company or its nominee of all inventions, discoveries,
developments, improvements and innovations ("Inventions") whether
patentable or not, conceived or made by Employee, either solely or in
concert with others during the period of Employee's employment with the
Company, including, but not limited to, any period prior to the date of
this Agreement, whether or not made or conceived during working hours
which:
(a) relate in any manner to the existing or
contemplated business or research
activities of the Company, or
(b) are suggested by or result from Employee's
work at the Company, or
(c) result from the use of the Company's time,
materials or facilities,
and Employee acknowledges that all such Inventions shall be the exclusive
property of the Company.
(2) Employee hereby assigns to the Company Employee's
entire right, title and interest to all such Inventions which are the
property of the Company under the provisions of Subparagraph 7(B)(1) of
this Agreement and to all unpatented Inventions generated during the period
of Employee's employment with the Company which he now owns and Employee
will, at the Company's request and expense, execute specific assignments to
any such Inventions and execute, acknowledge and deliver such other
documents and take such further action as may be considered necessary by
the Company at any time during or subsequent to the period of Employee's
employment with the Company to obtain and defend letters patent in any and
all countries and to vest title in such Inventions in the Company or its
assigns.
(3) Employee agrees that an Invention conceived by
Employee or described in a patent application filed by Employee or on
Employee's behalf within twelve months following the period of Employee's
employment with the Company shall be presumed to have been conceived or
made by Employee during the period of Employee's employment with the
Company unless proven to have been conceived and made by Employee following
the termination of employment with the Company. For purposes of this
Subparagraph 7(B)(3), witnessed documentation of the Invention shall
constitute such proof and shall shift the burden of proof concerning the
time of conception of such Invention to the Company.
8. Noncompetition Covenant.
A. Employee covenants and agrees that for a period extending
from the effective date of this Agreement and until that date which is
eighteen (18) months after the effective date of the termination of
Employee's employment with the Company hereunder (whether such termination
shall have been voluntary or involuntary on the part of the Employee),
Employee will not (without the prior written consent of the Company)
directly or indirectly, either individually or as an employee, agent,
partner, shareholder, director, officer, consultant or in any other
capacity, participate in or have a financial, management or other interest
in any business enterprise anywhere in the world that engages in (or within
eighteen (18) months of the termination of Employee's employment has plans
to engage in) substantial and direct competition with the Company or its
<PAGE>
<PAGE>
subsidiaries or affiliates, or any of their successors or assigns, in any
business operation involving the producing, distributing or marketing of
hybrid or specialized agricultural seeds or conducting or administering any
research activities relating to hybrid or specialized agricultural seed.
The ownership of less than one percent of the outstanding debt or equity in
a corporation whose shares are traded on a recognized stock exchange or in
the over-the-counter market, even though that corporation may be a
competitor of the Company or any of its affiliates or subsidiaries, shall
not constitute a breach of this Agreement.
B. The Company acknowledges that it would be appropriate to
compensate Employee during the period of time between the effective date of
Employee's termination of Employee's employment with the Company and the
end of the noncompetition period. To that end, the Company shall pay
Employee one month's base pay (at the rate in effect on Employee's
termination date) for every one month during the noncompetition period;
provided that, the Company shall make no payment to Employee pursuant to
this Subparagraph 8(B) for any month during which a payment can be deemed
to have been paid pursuant to Paragraph 1, above.
C. Employee acknowledges and agrees that the period of time
and the geographic scope specified with respect to Employee's aforesaid
covenant not to compete is the minimum period of time and geographic area
necessary to reasonably and adequately protect the Company and its
affiliates in the continued operation of their business and affairs, and in
the use and enjoyment of their assets, properties and property rights.
Employee further acknowledges that the compensation provided in
Subparagraph 8(B) hereof will adequately compensate Employee during his
transition to new employment.
D. If and to the extent that any part of the noncompetition
covenant set forth above shall be deemed by the court in which a suit is
brought to be unenforceable as written, by reason of it scope in terms of
area or length of time, but may be made enforceable by reducing the area or
period of time applicable to such covenant, Employee and the Company
stipulate and agree that such covenant shall automatically be deemed to be
amended for all purposes of such suit so as to incorporate the aforesaid
reduction in area, or duration of time, or both, to the end that such
covenant, as modified in connection with such suit, shall be enforceable to
the fullest extent permissible in such jurisdiction.
E. Employee and the Company acknowledge that there may be
times when the Company may consider it to be appropriate to waive all or
part of the agreement that Employee not compete with the Company. In such
event, the Company may, at its option, waive all or part of the time period
specified in Subparagraph 8(A) during which Employee is not permitted to
complete. The compensation provided in Subparagraph 8(B) shall be reduced
to the same extent as the noncompetition period is reduced; provided that
this reduction in compensation shall not reduce the compensation which may
be owed to Employee pursuant to Paragraph 1.
9. Resolution of Disputes Regarding Termination. Employee shall not
initiate legal proceedings against the Company, or any of its directors,
officers, employees, agents or representatives relating in any way to this
Agreement, to Employee's employment with the Company, or the termination of
Employee's employment until 30 days after the Company receives written
notice from Employee of the specific nature of any purported claim against
the Company and the amount of any purported damages. Employee further
agrees that if the Company submits Employee's claim to the Center for
Public Resources, 680 Fifth Avenue, New York, New York 10019, for
<PAGE>
<PAGE>
nonbinding mediation prior to the expiration of such 30 day period,
Employee may not institute legal proceedings against the Company until the
earlier of: a) the completion of nonbinding mediation efforts, or b) 90
days after the date on which the Company received written notice of
Employee's claim. Employee and the Company agree that all mediation
sessions shall take place in Chicago or in such other place as Employee and
the Company mutually agree.
10. Early Termination. In the event Employee's employment shall end
with the Company prior to the termination date provided herein, or in the
event Employee shall act in violation of the provisions of Paragraphs 5, 6,
7 or 8 of this Agreement or otherwise breach this Agreement, Employee shall
be subject to any and all of the penalties contained in, or legal and
equitable remedies available to the Company resulting from, this Agreement.
11. Modification. If, in any action before any court or agency
legally empowered to enforce such covenants, any term, restriction,
covenant or promise contained herein is found to be unreasonable, unlawful
or otherwise invalid and for that reason unenforceable, then such term,
restriction, covenant or promise shall be deemed modified to the extent
necessary to make it enforceable by such court or agency.
12. Remedies; Survival of Employee's Covenants. Without limiting the
rights of the Company to pursue all other legal and equitable rights
available to them for any violation of the covenants of Employee herein, it
is agreed that: (a) the services to be rendered by Employee under this
Agreement are of a special, unique, unusual and extraordinary character
which give them a peculiar value, and the loss of such services cannot be
reasonably and adequately compensated in damages in an action at law, and
(b) remedies other than injunctive relief cannot fully compensate the
Company for violation of Paragraphs 5, 6, 7 or 8 of this Agreement;
accordingly, the Company shall be entitled to injunctive relief to prevent
violations of such paragraphs or continuing violations thereof. All of
Employee's covenants in and obligations under Paragraphs 5, 6, 7 and 8 of
this Agreement shall continue in effect notwithstanding any termination of
Employee's employment, whether by the Company or by Employee, upon
expiration or otherwise, and whether or not pursuant to the terms of this
Agreement.
13. Life Insurance. The Company shall have the right, at its own
expense and for its own benefit, to take out life insurance on Employee in
such amount or amounts as it shall see fit, and Employee agrees to
cooperate with the Company in obtaining such insurance.
14. Designation of Beneficiary. Employee may, by written instrument
delivered to the Company, designate a beneficiary or beneficiaries to
receive any payments to which he may be entitled under Paragraph 3 which
become payable following Employee's death, and may at any time or from time
to time change such designated beneficiary by similar written instrument,
and the Company shall be fully protected in making any such payments to
such designated beneficiary. In the event of Employee's death when no such
beneficiary designation is in effect, the Company shall make payment of any
amounts to which Employee was entitled following Employee's death to
Employee's personal representative, heirs, devisees or legatees.
<PAGE>
<PAGE>
15. DEKALB Antitrust Compliance Policy and Business Conduct
Standards. Employee acknowledges that he has received a copy of both the
DEKALB Antitrust Compliance Policy and the DEKALB Business Conduct
Standards adopted by the Board of Directors of DEKALB at its meeting on May
15, 1990. Employee shall to the best of Employee's belief and ability,
adhere to the policies and principles contained therein, and will require
all appropriate employees reporting to Employee to adhere to those policies
and principles.
16. Successors and Assigns; Parties in Interest. This Agreement
shall be binding upon the Company, its successors and assigns and upon
Employee, Employee's heirs, executors and administrators.
17. Notices. Notices contemplated by this Agreement shall be in
writing and shall be deemed given when delivered in person or mailed
registered first class mail postage prepaid, to the Company at 3100
Sycamore Road, DeKalb, IL 60115 or to Employee at 64 Twin Lakes Drive,
Waterford, CT 06385.
18. Integration. This Agreement, including Exhibit A as it may be
amended from time to time, as well as all confidentiality agreements signed
by Employee during his employment with the Company, contain the entire
agreement between the parties hereto with respect to the transactions
contemplated herein, supercedes all prior negotiations and agreements, both
oral and written, between the parties and cannot be amended, supplemented
or modified except by an instrument in writing signed by all parties.
19. Headings. The headings in this Agreement are inserted for
convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, this Agreement is entered into effective as
of the date set forth above.
DEKALB Genetics Corporation
By:
Employee
<PAGE>
<PAGE>
EMPLOYMENT AGREEMENT
THIS AGREEMENT is effective September 1, 1993, and made by and
between Byron D. Ford ("Employee") and DEKALB Genetics Corporation, a
Delaware corporation (the "Company").
WHEREAS, Employee is a key employee of the Company and he
acknowledges that Employee's talents and services to the Company are of a
special, unique, unusual and extraordinary character and are of particular
and peculiar benefit and importance to the Company; and
WHEREAS, the Company desires to obtain assurances that the
Employee will devote Employee's best efforts to Employee's employment with
the Company, that he will not compete with the Company and that he will not
solicit other employees of the Company to terminate their relationships
with the Company; and
WHEREAS, Employee is willing, in consideration for Employee's
employment with the Company, to provide the Company with such assurances
and to enter into and carry out this Agreement;
NOW, THEREFORE, the parties agree as follows:
1. Employment. The Company agrees to employ Employee, and Employee
agrees to be so employed by the Company, commencing September 1, 1993. In
the event the Company terminates Employee's employment for other than
cause, Employee shall, in addition to amounts otherwise due and owing under
this Agreement and in lieu of any other severance pay to which Employee may
be entitled, be entitled to termination pay which shall equal nine (9)
months base salary beginning with the date of termination.
2. Best Efforts and Other Employment of Employee.
A. Employee agrees that he will at all times faithfully,
industriously and to the best of Employee's ability, experience and
talents, perform all of the duties that may be required of and from
Employee pursuant to the express and implicit terms hereof to the
reasonable satisfaction of the Company. Such duties shall be rendered at
DeKalb, Illinois or at such other place or places within or without the
State of Illinois as the Company shall in good faith require or as the
interest, needs, business, or opportunities of the Company shall require.
B. Employee shall devote Employee's normal and regular
business time, attention, knowledge and skill to the business and interests
of the Company, and the Company shall be entitled to all of the benefits,
profits or other issue arising from or incident to all work, services and
advice of Employee performed for the Company. Employee shall have the
right to make investments in businesses which engage in activities other
than those engaged in by the Company from time to time. Employee shall
also have the right to devote such incidental and immaterial amounts of
Employee's time which are not required for the full and faithful
performance of Employee's duties hereunderto any outside activities and
businesses which are not being engaged in by the Company and which shall
not otherwise interfere with the performance of Employee's duties
hereunder.
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<PAGE>
3. Annual Compensation.
A. (1). The compensation to be paid for the services to be
rendered by Employees shall be as described in
Exhibit A , hereto. The payment of all such
amounts, including the payment of all severance
obligations, if any, shall constitute full
satisfaction and discharge of the obligations of
the Company under this Agreement, but without
prejudice to Employee's rights under any employee
benefit plan or incentive compensation plan
provided by the Company.
(2). Since this Agreement shall remain in effect until
amended or terminated, a new Exhibit A shall be
prepared, signed by the parties and attached to
this Agreement on a yearly basis. This Agreement
and the applicable Exhibit A shall be treated as
one agreement.
B. If Employee voluntarily terminates Employee's employment
with the Company, Employee shall not be entitled to, and shall not receive,
the cash bonus, if any, referred to in Exhibit A if he did not work for the
entire fiscal year. If Employee should die or become disabled and unable
to perform Employee's duties on or before August 31, 1994, or any
applicable subsequent August 31, he shall receive a cash bonus equal to the
cash bonus he would have received had he worked for the entire fiscal year
multiplied times a fraction, the numerator of which equals the number of
months transpiring between September 1, 1993, or any applicable subsequent
September 1, and the last day of the month during which the death or
disability occurred, and the denominator of which is twelve.
C. The Company shall pay Employees reasonable airline fares,
hotel bills and other necessary and proper expenses when traveling on, or
otherwise performing, the Company's business, provided that Employee
furnishes the Company with appropriate supporting documentation of such
expenses.
4. Termination for Cause. Employee shall be deemed to have been
terminated by the Company for cause if he is terminated because of
Employee's acts or conduct which would make it unreasonable to require the
Company to retain Employee in its employment, such as, but not limited to,
embezzlement or misappropriation of corporate funds, other acts of
dishonesty, improper disclosure of any information concerning any matter
affecting or relating to the Company or the business of the Company,
activities harmful to the reputation of the Company, refusal to perform or
neglect of the substantive duties properly assigned to Employee, a
violation of any contractual, statutory or common law duty of loyalty to
the Company or breach of any of the provisions of this Agreement. If
Employee is terminated for cause, he shall be entitled to no severance pay
and shall be entitled to no bonus payment that might otherwise be owed to
Employee even if he worked for the entire year.
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<PAGE>
5. Solicitation of Employees. For a period of three (3) years after
he is no longer employed by the Company, the Employee will not, directly,
or indirectly, either as an individual, proprietor, stockholder, partner,
officer, director, employee or otherwise, solicit any officer, director,
employee or other individual:
A. to leave his or her employment or position with the Company,
B. to compete with the business of the Company, or
C. to violate the terms of any employment, noncompetition or similar
agreement with the Company.
For purposes of this Paragraph 5, references to the business of
the Company shall include the business of any subsidiary or affiliate of
the Company.
6. Confidentiality. The Employee will not at any time during or
after Employee's employment by the Company, directly or indirectly,
divulge, disclose or communicate to any person, firm or corporation in any
manner whatsoever, other than in the normal course of performing Employee's
duties for the Company, any information concerning any matter affecting or
relating to the Company or the business of the Company. While engaged as
an employee of the Company, the Employee may only use information
concerning any matters affecting or relating to the Company or the business
of the Company for a purpose which is necessary to the carrying out of the
Employee's duties as an employee of the Company, and the Employee may not
make use of any information of the Company after he is no longer an
employee of the Company. The Employee agrees to the foregoing without
regard to whether all of the foregoing matters will be deemed confidential,
material or important, it being stipulated by the parties that all
information, whether written or otherwise, regarding the Company's
business, including but not limited to, information regarding customers,
customer lists, employees, employee salaries, costs, prices, earnings, any
financial or cost accounting reports, products, services, research
programs, pedigrees, formulae, compositions, patents, machines, equipment,
apparatus, systems, manufacturing or production procedures, operations,
potential acquisitions, new location plans, prospective and executed
contracts and other business arrangements, and sources of supply, is
presumed to be important, material and confidential information of the
Company for purposes of this Agreement, except to the extent that such
information may be otherwise lawfully and readily available to the general
public. Employee agrees that all such information is a trade secret owned
exclusively by the Company which shall at all times be kept confidential.
The Employee further agrees that he will, upon termination of Employee's
employment with the Company, return to the Company all books, records,
lists and other written, typed or printed materials, including information
in computers or computer disks, whether furnished by the Company or
prepared by the Employee, which contain any information relating to the
Company's business, and the Employee agrees that he will neither make nor
retain any copies of such materials after termination of employment. For
purposes of this Paragraph 6, references to the business or information of
or relating to the Company shall include the information or business of any
subsidiary or affiliate of the Company.
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<PAGE>
7. Business Opportunities and Inventions.
A. Employee shall make full and prompt written disclosure to
the Company or its nominee of any business opportunity of which he becomes
aware and which relates to the business of the Company or any of its
subsidiaries or affiliates; and
B. (1) Employee will make full and prompt written
disclosure to the Company or its nominee of all inventions, discoveries,
developments, improvements and innovations ("Inventions") whether
patentable or not, conceived or made by Employee, either solely or in
concert with others during the period of Employee's employment with the
Company, including, but not limited to, any period prior to the date of
this Agreement, whether or not made or conceived during working hours
which:
(a) relate in any manner to the existing or
contemplated business or research
activities of the Company, or
(b) are suggested by or result from Employee's
work at the Company, or
(c) result from the use of the Company's time,
materials or facilities,
and Employee acknowledges that all such Inventions shall be the exclusive
property of the Company.
(2) Employee hereby assigns to the Company Employee's
entire right, title and interest to all such Inventions which are the
property of the Company under the provisions of Subparagraph 7(B)(1) of
this Agreement and to all unpatented Inventions generated during the period
of Employee's employment with the Company which he now owns and Employee
will, at the Company's request and expense, execute specific assignments to
any such Inventions and execute, acknowledge and deliver such other
documents and take such further action as may be considered necessary by
the Company at any time during or subsequent to the period of Employee's
employment with the Company to obtain and defend letters patent in any and
all countries and to vest title in such Inventions in the Company or its
assigns.
(3) Employee agrees that an Invention conceived by
Employee or described in a patent application filed by Employee or on
Employee's behalf within twelve months following the period of Employee's
employment with the Company shall be presumed to have been conceived or
made by Employee during the period of Employee's employment with the
Company unless proven to have been conceived and made by Employee following
the termination of employment with the Company. For purposes of this
Subparagraph 7(B)(3), witnessed documentation of the Invention shall
constitute such proof and shall shift the burden of proof concerning the
time of conception of such Invention to the Company.
<PAGE>
<PAGE>
8. Noncompetition Covenant.
A. Employee covenants and agrees that for a period extending
from the effective date of this Agreement and until that date which is
twelve (12) months after the effective date of the termination of
Employee's employment with the Company hereunder (whether such termination
shall have been voluntary or involuntary on the part of the Employee),
Employee will not (without the prior written consent of the Company)
directly or indirectly, either individually or as an employee, agent,
partner, shareholder, director, officer, consultant or in any other
capacity, participate in or have a financial, management or other interest
in any business enterprise anywhere in the world that engages in (or within
twelve (12) months of the termination of Employee's employment has plans to
engage in) substantial and direct competition with the Company or its
subsidiaries or affiliates, or any of their successors or assigns, in any
business operation involving the producing, distributing or marketing of
hybrid or specialized agricultural seeds or conducting or administering any
research activities relating to hybrid or specialized agricultural seed.
The ownership of less than one percent of the outstanding debt or equity in
a corporation whose shares are traded on a recognized stock exchange or in
the over-the-counter market, even though that corporation may be a
competitor of the Company or any of its affiliates or subsidiaries, shall
not constitute a breach of this Agreement.
B. The Company acknowledges that it would be appropriate to
compensate Employee during the period of time between the effective date of
Employee's termination of Employee's employment with the Company and the
end of the noncompetition period. To that end, the Company shall pay
Employee one month's base pay (at the rate in effect on Employee's
termination date) for every one month during the noncompetition period;
provided that, the Company shall make no payment to Employee pursuant to
this Subparagraph 8(B) for any month during which a payment can be deemed
to have been paid pursuant to Paragraph 1, above.
C. Employee acknowledges and agrees that the period of time
and the geographic scope specified with respect to Employee's aforesaid
covenant not to compete is the minimum period of time and geographic area
necessary to reasonably and adequately protect the Company and its
affiliates in the continued operation of their business and affairs, and in
the use and enjoyment of their assets, properties and property rights.
Employee further acknowledges that the compensation provided in
Subparagraph 8(B) hereof will adequately compensate Employee during his
transition to new employment.
D. If and to the extent that any part of the noncompetition
covenant set forth above shall be deemed by the court in which a suit is
brought to be unenforceable as written, by reason of it scope in terms of
area or length of time, but may be made enforceable by reducing the area or
period of time applicable to such covenant, Employee and the Company
stipulate and agree that such covenant shall automatically be deemed to be
amended for all purposes of such suit so as to incorporate the aforesaid
reduction in area, or duration of time, or both, to the end that such
covenant, as modified in connection with such suit, shall be enforceable to
the fullest extent permissible in such jurisdiction.
<PAGE>
<PAGE>
E. Employee and the Company acknowledge that there may be
times when the Company may consider it to be appropriate to waive all or
part of the agreement that Employee not compete with the Company. In such
event, the Company may, at its option, waive all or part of the time period
specified in Subparagraph 8(A) during which Employee is not permitted to
complete. The compensation provided in Subparagraph 8(B) shall be reduced
to the same extent as the noncompetition period is reduced; provided that
this reduction in compensation shall not reduce the compensation which may
be owed to Employee pursuant to Paragraph 1.
9. Resolution of Disputes Regarding Termination. Employee shall not
initiate legal proceedings against the Company, or any of its directors,
officers, employees, agents or representatives relating in any way to this
Agreement, to Employee's employment with the Company, or the termination of
Employee's employment until 30 days after the Company receives written
notice from Employee of the specific nature of any purported claim against
the Company and the amount of any purported damages. Employee further
agrees that if the Company submits Employee's claim to the Center for
Public Resources, 680 Fifth Avenue, New York, New York 10019, for
nonbinding mediation prior to the expiration of such 30 day period,
Employee may not institute legal proceedings against the Company until the
earlier of: a) the completion of nonbinding mediation efforts, or b) 90
days after the date on which the Company received written notice of
Employee's claim. Employee and the Company agree that all mediation
sessions shall take place in Chicago or in such other place as Employee and
the Company mutually agree.
10. Early Termination. In the event Employee's employment shall end
with the Company prior to the termination date provided herein, or in the
event Employee shall act in violation of the provisions of Paragraphs 5, 6,
7 or 8 of this Agreement or otherwise breach this Agreement, Employee shall
be subject to any and all of the penalties contained in, or legal and
equitable remedies available to the Company resulting from, this Agreement.
11. Modification. If, in any action before any court or agency
legally empowered to enforce such covenants, any term, restriction,
covenant or promise contained herein is found to be unreasonable, unlawful
or otherwise invalid and for that reason unenforceable, then such term,
restriction, covenant or promise shall be deemed modified to the extent
necessary to make it enforceable by such court or agency.
12. Remedies; Survival of Employee's Covenants. Without limiting the
rights of the Company to pursue all other legal and equitable rights
available to them for any violation of the covenants of Employee herein, it
is agreed that: (a) the services to be rendered by Employee under this
Agreement are of a special, unique, unusual and extraordinary character
which give them a peculiar value, and the loss of such services cannot be
reasonably and adequately compensated in damages in an action at law, and
(b) remedies other than injunctive relief cannot fully compensate the
Company for violation of Paragraphs 5, 6, 7 or 8 of this Agreement;
accordingly, the Company shall be entitled to injunctive relief to prevent
violations of such paragraphs or continuing violations thereof. All of
Employee's covenants in and obligations under Paragraphs 5, 6, 7 and 8 of
this Agreement shall continue in effect notwithstanding any termination of
Employee's employment, whether by the Company or by Employee, upon
expiration or otherwise, and whether or not pursuant to the terms of this
Agreement.
<PAGE>
<PAGE>
13. Life Insurance. The Company shall have the right, at its own
expense and for its own benefit, to take out life insurance on Employee in
such amount or amounts as it shall see fit, and Employee agrees to
cooperate with the Company in obtaining such insurance.
14. Designation of Beneficiary. Employee may, by written instrument
delivered to the Company, designate a beneficiary or beneficiaries to
receive any payments to which he may be entitled under Paragraph 3 which
become payable following Employee's death, and may at any time or from time
to time change such designated beneficiary by similar written instrument,
and the Company shall be fully protected in making any such payments to
such designated beneficiary. In the event of Employee's death when no such
beneficiary designation is in effect, the Company shall make payment of any
amounts to which Employee was entitled following Employee's death to
Employee's personal representative, heirs, devisees or legatees.
15. DEKALB Antitrust Compliance Policy and Business Conduct
Standards. Employee acknowledges that he has received a copy of both the
DEKALB Antitrust Compliance Policy and the DEKALB Business Conduct
Standards adopted by the Board of Directors of DEKALB at its meeting on May
15, 1990. Employee shall to the best of Employee's belief and ability,
adhere to the policies and principles contained therein, and will require
all appropriate employees reporting to Employee to adhere to those policies
and principles.
16. Successors and Assigns; Parties in Interest. This Agreement
shall be binding upon the Company, its successors and assigns and upon
Employee, Employee's heirs, executors and administrators.
17. Notices. Notices contemplated by this Agreement shall be in
writing and shall be deemed given when delivered in person or mailed
registered first class mail postage prepaid, to the Company at 3100
Sycamore Road, DeKalb, IL 60115 or to Employee at
.
18. Integration. This Agreement, including Exhibit A as it may be
amended from time to time, as well as all confidentiality agreements signed
by Employee during his employment with the Company, contain the entire
agreement between the parties hereto with respect to the transactions
contemplated herein, supercedes all prior negotiations and agreements, both
oral and written, between the parties and cannot be amended, supplemented
or modified except by an instrument in writing signed by all parties.
19. Headings. The headings in this Agreement are inserted for
convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.<PAGE>
<PAGE>
IN WITNESS WHEREOF, this Agreement is entered into effective as
of the date set forth above.
DEKALB Genetics Corporation
By:
Employee
<PAGE>
<PAGE>
EMPLOYMENT AGREEMENT
THIS AGREEMENT is effective September 1, 1993, and made by and
between Roy L. Poage ("Employee") and DEKALB Swine Breeders, Inc., a
Delaware corporation (the "Company").
WHEREAS, Employee is a key employee of the Company and he
acknowledges that Employee's talents and services to the Company are of a
special, unique, unusual and extraordinary character and are of particular
and peculiar benefit and importance to the Company; and
WHEREAS, the Company desires to obtain assurances that the
Employee will devote Employee's best efforts to Employee's employment with
the Company, that he will not compete with the Company and that he will not
solicit other employees of the Company to terminate their relationships
with the Company; and
WHEREAS, Employee is willing, in consideration for Employee's
employment with the Company, to provide the Company with such assurances
and to enter into and carry out this Agreement;
NOW, THEREFORE, the parties agree as follows:
1. Employment. The Company agrees to employ Employee in an
executive capacity as an officer of the Company, and Employee agrees to be
so employed by the Company, commencing September 1, 1993. In the event the
Company terminates Employee's employment for other than cause, Employee
shall, in addition to amounts otherwise due and owing under this Agreement
and in lieu of any other severance pay to which Employee may be entitled,
be entitled to termination pay which shall equal twelve (12) months base
salary beginning with the date of termination.
2. Best Efforts and Other Employment of Employee.
A. Employee agrees that he will at all times faithfully,
industriously and to the best of Employee's ability, experience and
talents, perform all of the duties that may be required of and from
Employee pursuant to the express and implicit terms hereof to the
reasonable satisfaction of the Company. Such duties shall be rendered at
DeKalb, Illinois or at such other place or places within or without the
State of Illinois as the Company shall in good faith require or as the
interest, needs, business, or opportunities of the Company shall require.
B. Employee shall devote Employee's normal and regular
business time, attention, knowledge and skill to the business and interests
of the Company, and the Company shall be entitled to all of the benefits,
profits or other issue arising from or incident to all work, services and
advice of Employee performed for the Company. Employee shall have the
right to make investments in businesses which engage in activities other
than those engaged in by the Company from time to time. Employee shall
also have the right to devote such incidental and immaterial amounts of
Employee's time which are not required for the full and faithful
performance of Employee's duties hereunder to any outside activities and
businesses which are not being engaged in by the Company and which shall
not otherwise interfere with the performance of Employee's duties
hereunder.
<PAGE>
<PAGE>
3. Annual Compensation.
A. (1). The compensation to be paid for the services to be
rendered by Employees shall be as described in
Exhibit A , hereto. The payment of all such
amounts, including the payment of all severance
obligations, if any, shall constitute full
satisfaction and discharge of the obligations of
the Company under this Agreement, but without
prejudice to Employee's rights under any employee
benefit plan or incentive compensation plan
provided by the Company.
(2). Since this Agreement shall remain in effect until
amended or terminated, a new Exhibit A shall be
prepared, signed by the parties and attached to
this Agreement on a yearly basis. This Agreement
and the applicable Exhibit A shall be treated as
one agreement.
B. If Employee voluntarily terminates Employee's employment
with the Company, Employee shall not be entitled to, and shall not receive,
the cash bonus, if any, referred to in Exhibit A if he did not work for the
entire fiscal year. If Employee should die or become disabled and unable
to perform Employee's duties on or before August 31, 1994, or any
applicable subsequent August 31, he shall receive a cash bonus equal to the
cash bonus he would have received had he worked for the entire fiscal year
multiplied times a fraction, the numerator of which equals the number of
months transpiring between September 1, 1993, or any applicable subsequent
September 1, and the last day of the month during which the death or
disability occurred, and the denominator of which is twelve.
C. The Company shall pay Employees reasonable airline fares,
hotel bills and other necessary and proper expenses when traveling on, or
otherwise performing, the Company's business, provided that Employee
furnishes the Company with appropriate supporting documentation of such
expenses.
4. Termination for Cause. Employee shall be deemed to have been
terminated by the Company for cause if he is terminated because of
Employee's acts or conduct which would make it unreasonable to require the
Company to retain Employee in its employment, such as, but not limited to,
embezzlement or misappropriation of corporate funds, other acts of
dishonesty, improper disclosure of any information concerning any matter
affecting or relating to the Company or the business of the Company,
activities harmful to the reputation of the Company, refusal to perform or
neglect of the substantive duties properly assigned to Employee, a
violation of any contractual, statutory or common law duty of loyalty to
the Company or breach of any of the provisions of this Agreement. If
Employee is terminated for cause, he shall be entitled to no severance pay
and shall be entitled to no bonus payment that might otherwise be owed to
Employee even if he worked for the entire year.
5. Solicitation of Employees. For a period of three (3) years after
he is no longer employed by the Company, the Employee will not, directly,
or indirectly, either as an individual, proprietor, stockholder, partner,
officer, director, employee or otherwise, solicit any officer, director,
employee or other individual:
<PAGE>
<PAGE>
A. to leave his or her employment or position with the Company,
B. to compete with the business of the Company, or
C. to violate the terms of any employment, noncompetition or similar
agreement with the Company.
For purposes of this Paragraph 5, references to the business of
the Company shall include the business of any subsidiary or affiliate of
the Company.
6. Confidentiality. The Employee will not at any time during or
after Employee's employment by the Company, directly or indirectly,
divulge, disclose or communicate to any person, firm or corporation in any
manner whatsoever, other than in the normal course of performing Employee's
duties for the Company, any information concerning any matter affecting or
relating to the Company or the business of the Company. While engaged as
an employee of the Company, the Employee may only use information
concerning any matters affecting or relating to the Company or the business
of the Company for a purpose which is necessary to the carrying out of the
Employee's duties as an employee of the Company, and the Employee may not
make use of any information of the Company after he is no longer an
employee of the Company. The Employee agrees to the foregoing without
regard to whether all of the foregoing matters will be deemed confidential,
material or important, it being stipulated by the parties that all
information, whether written or otherwise, regarding the Company's
business, including but not limited to, information regarding customers,
customer lists, employees, employee salaries, costs, prices, earnings, any
financial or cost accounting reports, products, services, research
programs, pedigrees, formulae, compositions, patents, machines, equipment,
apparatus, systems, manufacturing or production procedures, operations,
potential acquisitions, new location plans, prospective and executed
contracts and other business arrangements, and sources of supply, is
presumed to be important, material and confidential information of the
Company for purposes of this Agreement, except to the extent that such
information may be otherwise lawfully and readily available to the general
public. Employee agrees that all such information is a trade secret owned
exclusively by the Company which shall at all times be kept confidential.
The Employee further agrees that he will, upon termination of Employee's
employment with the Company, return to the Company all books, records,
lists and other written, typed or printed materials, including information
in computers or computer disks, whether furnished by the Company or
prepared by the Employee, which contain any information relating to the
Company's business, and the Employee agrees that he will neither make nor
retain any copies of such materials after termination of employment. For
purposes of this Paragraph 6, references to the business or information of
or relating to the Company shall include the information or business of any
subsidiary or affiliate of the Company.
7. Business Opportunities and Inventions.
A. Employee shall make full and prompt written disclosure to
the Company or its nominee of any business opportunity of which he becomes
aware and which relates to the business of the Company or any of its
subsidiaries or affiliates; and
<PAGE>
<PAGE>
B. (1) Employee will make full and prompt written
disclosure to the Company or its nominee of all inventions, discoveries,
developments, improvements and innovations ("Inventions") whether
patentable or not, conceived or made by Employee, either solely or in
concert with others during the period of Employee's employment with the
Company, including, but not limited to, any period prior to the date of
this Agreement, whether or not made or conceived during working hours
which:
(a) relate in any manner to the existing or
contemplated business or research
activities of the Company, or
(b) are suggested by or result from Employee's
work at the Company, or
(c) result from the use of the Company's time,
materials or facilities,
and Employee acknowledges that all such Inventions shall be the exclusive
property of the Company.
(2) Employee hereby assigns to the Company Employee's
entire right, title and interest to all such Inventions which are the
property of the Company under the provisions of Subparagraph 7(B)(1) of
this Agreement and to all unpatented Inventions generated during the period
of Employee's employment with the Company which he now owns and Employee
will, at the Company's request and expense, execute specific assignments to
any such Inventions and execute, acknowledge and deliver such other
documents and take such further action as may be considered necessary by
the Company at any time during or subsequent to the period of Employee's
employment with the Company to obtain and defend letters patent in any and
all countries and to vest title in such Inventions in the Company or its
assigns.
(3) Employee agrees that an Invention conceived by
Employee or described in a patent application filed by Employee or on
Employee's behalf within twelve months following the period of Employee's
employment with the Company shall be presumed to have been conceived or
made by Employee during the period of Employee's employment with the
Company unless proven to have been conceived and made by Employee following
the termination of employment with the Company. For purposes of this
Subparagraph 7(B)(3), witnessed documentation of the Invention shall
constitute such proof and shall shift the burden of proof concerning the
time of conception of such Invention to the Company.
8. Resolution of Disputes Regarding Termination. Employee shall not
initiate legal proceedings against the Company, or any of its directors,
officers, employees, agents or representatives relating in any way to this
Agreement, to Employee's employment with the Company, or the termination of
Employee's employment until 30 days after the Company receives written
notice from Employee of the specific nature of any purported claim against
the Company and the amount of any purported damages. Employee further
agrees that if the Company submits Employee's claim to the Center for
Public Resources, 680 Fifth Avenue, New York, New York 10019, for
nonbinding mediation prior to the expiration of such 30 day period,
Employee may not institute legal proceedings against the Company until the
earlier of: a) the completion of nonbinding mediation efforts, or b) 90
days after the date on which the Company received written notice of
Employee's claim. Employee and the Company agree that all mediation
<PAGE>
<PAGE>
sessions shall take place in Chicago or in such other place as Employee and
the Company mutually agree. If mediation does not take place or does not
resolve the issues between Employee and the Company, either party may
resort to litigation without having waived any rights.
9. Early Termination. In the event Employee's employment shall end
with the Company prior to the termination date provided herein, or in the
event Employee shall act in violation of the provisions of Paragraphs 5, 6
or 7 of this Agreement or otherwise breach this Agreement, Employee shall
be subject to any and all of the penalties contained in, or legal and
equitable remedies available to the Company resulting from, this Agreement.
10. Modification. If, in any action before any court or agency
legally empowered to enforce such covenants, any term, restriction,
covenant or promise contained herein is found to be unreasonable, unlawful
or otherwise invalid and for that reason unenforceable, then such term,
restriction, covenant or promise shall be deemed modified to the extent
necessary to make it enforceable by such court or agency.
11. Remedies; Survival of Employee's Covenants. Without limiting the
rights of the Company to pursue all other legal and equitable rights
available to them for any violation of the covenants of Employee herein, it
is agreed that: (a) the services to be rendered by Employee under this
Agreement are of a special, unique, unusual and extraordinary character
which give them a peculiar value, and the loss of such services cannot be
reasonably and adequately compensated in damages in an action at law, and
(b) remedies other than injunctive relief cannot fully compensate the
Company for violation of Paragraphs 5, 6 or 7 of this Agreement;
accordingly, the Company shall be entitled to injunctive relief to prevent
violations of such paragraphs or continuing violations thereof. All of
Employee's covenants in and obligations under Paragraphs 5, 6 and 7 of this
Agreement shall continue in effect notwithstanding any termination of
Employee's employment, whether by the Company or by Employee, upon
expiration or otherwise, and whether or not pursuant to the terms of this
Agreement.
12. Life Insurance. The Company shall have the right, at its own
expense and for its own benefit, to take out life insurance on Employee in
such amount or amounts as it shall see fit, and Employee agrees to
cooperate with the Company in obtaining such insurance.
13. Designation of Beneficiary. Employee may, by written instrument
delivered to the Company, designate a beneficiary or beneficiaries to
receive any payments to which he may be entitled under Paragraph 3 which
become payable following Employee's death, and may at any time or from time
to time change such designated beneficiary by similar written instrument,
and the Company shall be fully protected in making any such payments to
such designated beneficiary. In the event of Employee's death when no such
beneficiary designation is in effect, the Company shall make payment of any
amounts to which Employee was entitled following Employee's death to
Employee's personal representative, heirs, devisees or legatees.
14. DEKALB Antitrust Compliance Policy and Business Conduct
Standards. Employee acknowledges that he has received a copy of both the
DEKALB Antitrust Compliance Policy and the DEKALB Business Conduct
Standards adopted by the Board of Directors of DEKALB at its meeting on May
15, 1990. Employee shall to the best of Employee's belief and ability,
adhere to the policies and principles contained therein, and will require
all appropriate employees reporting to Employee to adhere to those policies
and principles.
<PAGE>
15. Successors and Assigns; Parties in Interest. This Agreement
shall be binding upon the Company, its successors and assigns and upon
Employee, Employee's heirs, executors and administrators.
16. Notices. Notices contemplated by this Agreement shall be in
writing and shall be deemed given when delivered in person or mailed
registered first class mail postage prepaid, to the Company at 3100
Sycamore Road, DeKalb, IL 60115 or to Employee at 11579 Deerpath Road,
Sycamore, IL 60178.
17. Integration. This Agreement, including Exhibit A as it may be
amended from time to time, as well as all confidentiality agreements signed
by Employer during his employment with the Company, contain the entire
agreement between the parties hereto with respect to the transactions
contemplated herein, supercedes all prior negotiations and agreements, both
oral and written, between the parties and cannot be amended, supplemented
or modified except by an instrument in writing signed by all parties.
18. Headings. The headings in this Agreement are inserted for
convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, this Agreement is entered into effective as
of the date set forth above.
DEKALB Swine Breeders, Inc.
By:
Employee
<PAGE>
<PAGE> EXHIBIT 11
COMPUTATION OF NET EARNINGS PER COMMON
AND COMMON EQUIVALENT SHARE
For the six months ended February 28, 1994 and 1993
February February
1994 1993
PRIMARY EARNINGS PER SHARE:
Shares
Average shares outstanding 5,139,520 5,126,493
Net average additional shares outstanding
assuming dilutive stock options exercised
and proceeds used to purchase treasury stock
at average market price 69,851 63,010
Average number of common and common
equivalent shares outstanding 5,209,371 5,189,503
Net Earnings
Net earnings for primary earnings per share $6,632,000 $7,946,000
Primary Earnings Per Share $1.27 $1.53
FULLY DILUTED EARNINGS PER SHARE:(a)
Shares
Average shares outstanding 5,126,493
Net average additional shares outstanding
assuming dilutive stock options exercised
and proceeds used to purchase treasury stock
at greater of closing or average market price 65,137
Weighted average shares assuming conversion
of zero-coupon note * 1,191,185
Fully Diluted 6,382,815
Net Earnings
Net Earnings $7,946,000
Add interest on zero-coupon note,
net of tax effect 1,363,000
Net earnings for fully diluted earnings
per share $9,309,000
Fully Diluted Earnings per Share $1.46(b)
(a) Fully diluted earnings per share calculation was not required for
fiscal 1994.
(b) This information was not presented on the Statement of Operations since
the potential dilution was eliminated during the second six months of
fiscal 1993. The primary calculation was comparable to the current year
calculation.
<PAGE>
<PAGE>
EXHIBIT 11
COMPUTATION OF NET EARNINGS PER COMMON
AND COMMON EQUIVALENT SHARE
For the three months ended February 28, 1994 and 1993
February February
1994 1993
PRIMARY EARNINGS PER SHARE:
Shares
Average shares outstanding 5,140,055 5,129,229
Net average additional shares outstanding
assuming dilutive stock options exercised
and proceeds used to purchase treasury stock
at average market price 84,082 65,278
Average number of common and common
equivalent shares outstanding 5,224,137 5,194,507
Net Earnings
Net earnings for primary earnings per share $5,711,000 $7,169,000
Primary Earnings Per Share $1.09 $1.38
FULLY DILUTED EARNINGS PER SHARE:(a)
Shares
Average shares outstanding 5,129,229
Net average additional shares outstanding
assuming dilutive stock options exercised
and proceeds used to purchase treasury stock
at greater of closing or average market price 68,643
Weighted average shares assuming conversion
of zero-coupon note 1,191,185
Fully Diluted 6,389,057
Net Earnings
Net Earnings $7,169,000
Add interest on zero-coupon note,
net of tax effect 688,000
Net earnings for fully diluted earnings
per share $7,857,000
Fully Diluted Earnings per Share $1.23(b)
(a) Fully diluted earnings per share calculation was not required for
fiscal 1994.
(b) This information was not presented on the Statement of Operations since
the potential dilution was eliminated during the second six months of
fiscal 1993. The primary calculation was comparable to the current
year calculation.
<PAGE>
<PAGE>
EXHIBIT 15
Securities & Exchange Commission
Washington, D.C. 20549
We are aware that our report dated April 7, 1994, on our review of the interim
financial information of DEKALB Genetics Corporation as of February 28, 1994
and 1993, and the three-month and six-month periods then ended, included in
this Form 10-Q, is incorporated by reference into the Registration Statements
No. 33-24875, No. 33-33305 and No. 33-39986 on Form S-8. Pursuant to
Rule 436(c) under the Securities Act of 1933, this report should not be
considered a part of the registration statement prepared or certified by us
within the meaning of Sections 7 and 11 of that Act.
COOPERS & LYBRAND
Chicago, Illinois
April 7, 1994
