EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is entered into
as of July 1, 2005 by and between SEABOARD MARINE LTD., a
Liberian corporation (together with any Successor thereto, the
"Company"), and Edward A Gonzalez ("Executive").
WITNESSETH:
WHEREAS, the Company desires to employ and secure the
exclusive services of Executive on the terms and conditions set
forth in this Agreement;
WHEREAS, Executive desires to accept such employment on such
terms and conditions; and
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and promises contained herein and for other good
and valuable consideration, the Company and Executive hereby
agree as follows:
1. Agreement to Employ. Upon the terms and subject to the
conditions of this Agreement, the Company hereby agrees to
continue to employ Executive, and Executive hereby accepts such
continued employment with the Company.
2. Term; Position and Responsibilities; and Location.
(a) Term of Employment. Unless Executive's employment
shall sooner terminate pursuant to Section 8, the Company shall
continue to employ Executive on the terms and subject to the
conditions of this Agreement for a term commencing on July 1,
2005 (the "Commencement Date") and ending on the date which is
three (3) years after the Commencement Date, provided, however,
on each annual anniversary date of the Commencement Date (an
"Annual Anniversary Date"), Executive's employment hereunder
shall be deemed to be automatically extended, upon the same terms
and conditions for three (3) years after such Annual Anniversary
Date, unless the Company shall have given written notice to
Executive, at least thirty (30) days prior to the expiration of
such Annual Anniversary Date, of its intention not to extend the
Employment Period (as defined below) hereunder. Notwithstanding
the foregoing, unless mutually agreed to by the Company and the
Executive, Executive's employment hereunder shall under no
circumstances extend beyond December 31, 2030. The period during
which Executive is employed by the Company pursuant to this
Agreement, including any extension thereof in accordance with the
preceding sentence, shall be referred to as the "Employment
Period."
(b) Position and Responsibilities. During the
Employment Period, Executive shall serve as President of the
Company, and shall have such duties and responsibilities as are
customarily assigned to individuals serving in such position and
such other duties consistent with Executive's title and position
as the Board of Directors of the Company (the "Board") specifies
from time to time. Executive shall devote all of his skill,
knowledge, commercial efforts and
business time to the conscientious and good faith performance of
his duties and responsibilities for the Company to the best of
his ability.
(c) Location. During the Employment Period,
Executive's services shall be performed primarily in the Miami,
Florida metropolitan area. However, Executive may be required to
travel in and outside of Miami, Florida as the needs of the
Company's business dictate.
3. Base Salary. During the Employment Period, the Company
shall pay Executive a base salary at an annualized rate of two
hundred twenty-five thousand dollars ($225,000), payable in
installments on the Company's regular payroll dates. The Board
shall review Executive's base salary annually during the
Employment Period and may increase (but not decrease) such base
salary from time to time, based on its periodic review of
Executive's performance in accordance with the Company's regular
policies and procedures. The annual base salary payable to
Executive from time to time under this Section 3 shall
hereinafter be referred to as the "Base Salary."
4. Annual Bonus Compensation. Executive shall be eligible
to receive an annual bonus ("Annual Bonus") with respect to each
calendar year ending during the Employment Period. The Annual
Bonus shall be determined under the Company's Executive Officers'
Bonus Plan or such other annual bonus plan maintained by the
Company for similarly situated Executives that the Company
designates, in its sole discretion (any such plan, the "Bonus
Plan"), in accordance with the terms of such plan as in effect
from time to time. Executive's Annual Bonus shall not be less
than two hundred fifty thousand dollars ($250,000) for any
calendar year during the Employment Period. The Annual Bonus is
earned pro-rata throughout each year. The Annual Bonus for each
year shall be payable in cash on or before March 1 of the
following year.
5. Car Allowance. During Executive's Employment Period,
Executive will be entitled to receive an annual car allowance and
gasoline charge privileges in accordance with the Company's car
allowance policy.
6. Executive Benefits. During the Employment Period,
Executive will be eligible to participate in the employee and
executive benefit plans and programs maintained by the Company
from time to time in which executives of the Company at
Executive's grade level are eligible to participate, including
medical, dental, disability, hospitalization, life insurance,
and retirement (i.e., 401K, pension and executive retirement
plans), deferred compensation and savings plans, on the terms and
subject to the conditions set forth in such plans; as may be
amended from time to time; provided, however, the benefits
provided by the Company will not be amended to provide for any
benefits which are materially less than the current benefits
provided to Executive at the Commencement Date.
7. Indemnification; Expenses; Paid Time Off.
(a) Indemnification. Except to the extent, if any,
prohibited by law, the Company shall indemnify Executive against
expenses (including attorneys' fees of counsel
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selected by Executive), judgments, fines and amounts paid in
settlement actually and reasonably incurred by Executive in
connection with any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative, to which Executive was, is, or is threatened to be,
made a party by reason of facts which include Executive's being
or having been an employee, officer, director or agent of the
Company or any Affiliates. Except to the extent, if any,
prohibited by law, the Company shall pay expenses (including
attorneys' fees of counsel selected by Executive) actually and
reasonably incurred by Executive in defending any such action,
suit or proceeding in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking
by Executive to repay such amounts so paid on Executive's behalf
if it shall ultimately be determined that Executive is not
entitled to be indemnified by the Company for such expenses
under applicable law. The provisions of this Section 7(a) shall
(i) survive termination of this Agreement; and (ii) not be deemed
exclusive of any other indemnification or expense rights to
which Executive may be entitled.
(b) Business Expenses. During the Employment Period,
the Company will reimburse Executive for all reasonable and
necessary business-related expenses incurred by Executive at the
request of and on behalf of the Company in accordance with The
Company's normal expense reimbursement policies.
(c) Paid Time Off. During the Employment Period,
Executive shall be entitled to paid time off on an annualized
basis in accordance with the Company's paid time off policy.
Executive shall also be entitled to Company-designated holidays.
8. Termination of Employment.
(a) Termination Due to Death or Disability.
Executive's employment shall automatically terminate upon
Executive's death and may be terminated by the Company due
to Executive's Disability (as defined below in this subsection
(a)). In the event that Executive's employment is terminated
due to his Disability or death, no termination benefits shall be
payable to or in respect of Executive except as provided in
Section 8(f)(ii). For purposes of this Agreement, "Disability"
means a physical or mental disability that prevents or would
prevent the performance by Executive of his duties hereunder for
a continuous period of six months or longer. The determination
of Executive's Disability will be made by an independent
physician agreed to by the parties. If the parties are unable to
agree within ten (10) days after a request for designation by a
party, then the Company and the Executive shall each select a
physician, and the two (2) physicians selected shall select a
third physician. The three (3) physicians so selected shall make
a determination of the Executive's Disability, as determined by
at least two (2) of the three (3) physicians selected. Such
determination shall be final and binding on the parties hereto,
and shall be based on such competent medical evidence as shall be
presented to such physicians by Executive and/or the Company or
by any physician or group of physicians or other competent
medical experts employed by Executive and/or the Company to
advise such physicians.
(b) Termination by the Company for Cause. Executive's
employment may be terminated by the Company for Cause (as defined
below in this subsection (b)). In the event of a termination of
Executive's employment by the Company for Cause, Executive shall
be paid the
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termination benefits as provided in Section 8(f)(ii).
For purposes of this Agreement, "Cause" means (i) a material
breach by Executive of any provision of this Agreement; (ii) a
material violation by Executive of any Policy (as defined in
Section 14), resulting in material injury to the Company;
(iii) Executive's willful misconduct or gross negligence that has
caused or is reasonably expected to result in material injury to
the business, reputation or prospects of the Company or any of
its Affiliates; (iv) Executive's material fraud or
misappropriation of funds; or (v) the commission by Executive of
a felony involving moral turpitude; provided that no termination
under clauses (i) or (ii) shall be effective unless Company shall
have given Executive notice of the event or events constituting
Cause and Executive shall have failed to cure such event or
events within thirty (30) business days after receipt of such
notice.
(c) Termination Without Cause. Executive's employment
may be terminated by the Company Without Cause (as defined below
in this subsection (c)) at any time. In the event of a
termination of Executive's employment by the Company Without
Cause, the Executive shall be paid the termination benefits as
provided in Section 8(f)(i). For purposes of this Agreement, a
termination "Without Cause" shall mean a termination of
Executive's employment by the Company other than due to
Executive's death or Disability as described in Section 8(a) and
other than for Cause as described in Section 8(b).
(d) Termination by Executive. Executive may resign
from his employment for any reason, including for Good Reason (as
defined below in this subsection (d)). In the event of a
termination of Executive's employment by Executive's resignation
other than for Good Reason, no termination benefits shall be
payable to or in respect of Executive except as provided in
Section 8(f)(ii) and in the event of a termination of
Executive's employment by Executive for Good Reason, no
termination benefits shall be payable to or in respect of
Executive except as provided in Section 8(f)(i). For purposes
of this Agreement, a termination of employment by Executive
for "Good Reason" shall mean a resignation by Executive from
his employment with the Company within one hundred eighty (180)
days following the occurrence, without Executive's consent, of
any of the following events: (i) a material diminution in the
Executive's position, authority or responsibilities; (ii) any
involuntary relocation of the location where Executive primarily
performs his services; or (iii) any other material breach by
the Company of any material provision of this Agreement; provided
that the Executive shall have given the Company notice of the
event or events constituting Good Reason and the Company shall
have failed to cure such event or events (to the extent capable
of being cured) within thirty (30) business days after receipt
of such notice.
(e) Notice of Termination; Date of Termination.
(i) Notice of Termination. Any termination of
Executive's employment by the Company or by Executive (other
than as a result of Executive's death) shall be communicated
by a written Notice of Termination addressed to the other
party to this Agreement. A "Notice of Termination" shall
mean a notice stating that Executive or the Company, as the
case may be, is electing to terminate Executive's employment
with the Company (and thereby terminating the Employment
Period), stating the proposed effective date of such
termination, indicating the specific provision
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of this Section 8 under which such termination is being
effected and, if applicable, setting forth in reasonable
detail the circumstances claimed to provide the basis for
such termination. Any Notice of Termination given by an
Executive must specify an effective date of termination
which is at least thirty (30) days after the giving of the
Notice of Termination.
(ii) Date of Termination. The term "Date of
Termination" shall mean (i) if Executive's employment is
terminated by his death, the date of his death; and (ii) if
Executive's employment is terminated for any other reason,
the effective date of termination specified in such
Notice of Termination. The Employment Period shall expire
on the Date of Termination.
(f) Payments Upon Certain Terminations.
(i) In the event of a termination of Executive's
employment by the Company Without Cause or by Executive's
resignation from employment for Good Reason during the
Employment Period, the Company shall pay to Executive (or,
following his death, to Executive's estate), within thirty
(30) days of the Date of Termination, (x) his Base Salary
through the Date of Termination, to the extent not
previously paid; (y) the pro-rata amount of the Annual Bonus
(based on the amount paid for the previous year) which is
accrued through the date of termination; and (z)
reimbursement for any unreimbursed business expenses
incurred by Executive prior to the Date of Termination that
are subject to reimbursement pursuant to the terms hereof,
and payment for paid time off accrued as of the Date of
Termination but unused (such amounts under clauses (x), (y)
and (z), collectively the "Accrued Obligations"). In
addition, in the event of any such termination of
Executive's employment, if Executive executes and delivers
to the Company a Release and Discharge of All Claims
substantially in the form approved by the Company, Executive
(or, following his death, Executive's estate) shall be
entitled to the following payments and benefits:
(A) the Executive's Base Salary (at the Base
Salary being paid on the Date of Termination), for the
longer of: (x) the remaining Employment Period or (y)
one (1) year (the "Severance Period"), payable in
installments in accordance with the Company's regular
payroll policies for one year after the Date of
Termination, with the balance, if any, being paid
pursuant to a lump sum payment on the one year
anniversary date of the Date of Termination; and
(B) the Executive's Annual Bonus (at the
amount of the Annual Bonus paid to the Executive for
the year prior to the Date of Termination) which would
have been paid to the Executive had Executive's
employment continued for the Severance Period, duly
apportioned for any partial year, such amount to be
payable to Executive on the one year anniversary date
of the Date of Termination; and
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(C) the Executive shall receive "Years of
Service" credit for the number of years comprising the
Severance Period for purposes of accruing the
Executive's benefit under the Company's Executive
Retirement Plan and the Final Average Earnings
thereunder for the Severance Period shall be determined
based on the Base Salary being paid on the Date of
Termination and the Annual Bonus paid to the Executive
for the year prior to the Date of Termination;
(D) the Executive shall automatically vest
in all employee welfare and benefit plans in which the
Executive was participating as of the Date of
Termination and such benefits shall be paid to
Executive in accordance with the terms of such plans;
and
(E) the Company shall provide outplacement
services to Executive for up to ninety (90) days.
Executive shall not have a duty to mitigate the costs
to the Company under this Section 8(f)(i), nor shall any payments
from the Company to Executive hereunder be reduced, offset or
canceled by any compensation or fees earned by (whether or not
paid currently) or offered to Executive during the remainder of
the fiscal year of the Company that includes the Date of
Termination by a subsequent employer or other Person (as defined
below in Section 18(k) below) for which Executive performs
services, including, but not limited to, consulting services.
(ii) If Executive's employment shall terminate
upon his death or if the Company shall terminate Executive's
employment for Cause or due to Executive's Disability or
Executive shall resign from his employment without Good
Reason, in any such case during the Employment Period, the
Company shall pay to Executive (or, in the event of
Executive's death, to his estate) the Accrued
Obligations within thirty (30) days following the Date of
Termination.
(iii) Except as specifically set forth in this
Section 8(f), no termination benefits shall be payable to or
in respect of Executive's employment with the Company or its
Affiliates.
(iv) The Company shall have the right to apply and
set off against the Accrued Obligations or any other amounts
owing to Executive hereunder, any amounts owing by the
Executive to the Company, whether pursuant to this Agreement
or otherwise.
(g) Resignation upon Termination. Effective as of any
Date of Termination under this Section 8 or otherwise as of the
date of Executive's termination of employment with the Company,
Executive shall resign, in writing, from all Board memberships
and other positions then held by him, or to which he has been
appointed, designated or nominated, with the Company and its
Affiliates.
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9. Confidentiality.
(a) Executive acknowledges and agrees that the terms
of this Agreement, including all addendums and attachments hereto,
are confidential. Executive agrees not to disclose any
information contained in this Agreement, or the fact of this
Agreement, to anyone, other than to Executive's lawyer, financial
advisor or immediate family members. If Executive discloses any
information contained in this Agreement to his lawyer, financial
advisor or immediate family members as permitted herein,
Executive agrees to immediately tell each such individual that
he or she must abide by the confidentiality restrictions
contained herein and keep such information confidential as well.
(b) Executive agrees that during his employment with
the Company and thereafter, Executive will not, directly or
indirectly (i) disclose any Confidential Information to any
Person (other than, only with respect to the period that
Executive is employed by the Company, to an Executive of the
Company who requires such information to perform his or her
duties for the Company); or (ii) use any Confidential
Information for Executive's own benefit or the benefit of any
third party. "Confidential Information" means confidential,
proprietary or commercially sensitive information relating to
(i) the Company or its Affiliates, or members of their management
or boards; or (ii) any third parties who do business with the
Company or its Affiliates, including customers and suppliers.
Confidential Information includes, without limitation, marketing
plans, business plans, financial information and records,
operation methods, personnel information, drawings, designs,
information regarding product development, other commercial or
business information and any other information not available to
the public generally. The foregoing obligation shall not
apply to any Confidential Information that has been previously
disclosed to the public or is in the public domain (other than
by reason of a breach of Executive's obligations to hold such
Confidential Information confidential). If Executive is required
or requested by a court or governmental agency to disclose
Confidential Information, Executive must notify the General
Counsel of the Company in writing of such disclosure obligation
or request no later than three business days after Executive
learns of such obligation or request, and permit the Company to
take all lawful steps it deems appropriate to prevent or limit
the required disclosure.
10. Partial Restraint on Post-termination Competition.
(a) Definitions. For the purposes of this Section 10,
the following definitions shall apply:
"Competitor" means any business, individual,
partnership, joint venture, association, firm, corporation or
other entity, other than the Company and its affiliates, that is
engaging or actively planning to engage, wholly or partly, in
activities ("Competitive Activities") that directly compete or
would compete with the Company or its affiliates in the Company
Activities (as hereinafter defined) in the Territory (as
hereinafter defined).
"Competitive Position" means (i) the direct or
indirect ownership or control of all or any portion of a
Competitor; or (ii) any employment or independent contractor
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arrangement with any Competitor whereby Executive will serve such
Competitor in any managerial, sales, executive or consultant
capacity with respect to Competitive Activities in the Territory.
"The Company Activities" means the businesses
of cargo transportation, whether over land or water, and all
related business, including, without limitation, logistics,
freight forwarding, agency representation and stevedoring and any
business acquired or commenced by the Company after the
Commencement Date which has sales in excess of $100 million.
"Non-compete Period" or "Non-solicitation Period"
means the period beginning with the Commencement Date and ending
on the one year anniversary date of the Date of Termination.
"Territory" means the United States of America,
the Caribbean Basin, and Central and South America, which
Executive acknowledges and agrees are the geographic areas in
which the Company engages in the Company Activities.
(b) Non-competition.
(i) The parties hereto acknowledge that Executive,
by virtue of his position with and responsibilities to the
Company, is engaging and is expected to continue to engage
during the Term in the Company Activities throughout the
Territory and has executive management responsibilities with
respect to the Company responsibilities which extend
throughout the Territory. Executive acknowledges that to
protect adequately the interest of the Company in the
business of the Company it is essential that any non-
compete covenant with respect thereto cover all the
Company Activities and the entire Territory.
(ii) Executive hereby agrees that, during the Non-
compete Period, Executive will not, either directly or
indirectly, alone or in conjunction with any other party,
accept or enter into a Competitive Position. Executive
shall notify the Company promptly in writing if Executive
receives an offer of a Competitive Position during the Non-
compete Period, and such notice shall describe all material
terms of such offer.
Nothing contained in this Section 10 shall prohibit
Executive from acquiring not more than five percent (5%) of any
company whose common stock is publicly traded on a national
securities exchange or in the over-the-counter market.
(c) Severability. If a judicial or arbitral
determination is made that any of the provisions of this Section
10 constitutes an unreasonable or otherwise unenforceable
restriction against Executive the provisions of this Section
10 shall be rendered void only to the extent that such
judicial or arbitral determination finds such provisions to
be unreasonable or otherwise unenforceable with respect to
Executive. In this regard, Executive hereby agrees that any
judicial or arbitral authority construing this Agreement shall
sever or reform any portion of the
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Territory, any prohibited business activity or any time period
from the coverage of this Agreement to allow the covenants in
this Section 10 to be enforced to the maximum extent authorized
by law, and shall then enforce the covenants in this Section 10
as so severed or reformed.
(d) Reasonable Restrictions. Executive acknowledges
that the restrictions and covenants contained in this
Agreement are reasonably necessary to protect the goodwill
and legitimate business interests of the Company, are not
overbroad, overlong, or unfair (including in duration and scope),
and will not curtail Executive's ability to earn a
livelihood upon Executive's termination of employment with the
Company.
11. Non-Solicitation of Employees and Customers. During the
period of Executive's employment with the Company and for the one-
year period following the termination of his employment,
Executive shall not, directly or indirectly, by himself or
through any third party, whether on Executive's own behalf or on
behalf of any other Person or entity, (i) solicit or endeavor to
solicit, employ or retain; (ii) interfere with the relationship
of the Company or any of its Affiliates with; or (iii) attempt to
establish a business relationship with (A) any natural person who
is or was (during Executive's employment with the Company) an
employee or engaged by the Company or any Affiliate to provide
services to it, or (B) any customer of the Company or any of its
Affiliates who was a customer at any time during which Executive
was an employee of the Company.
12. Work Product. Executive agrees that all of Executive's
work product (created solely or jointly with others, and
including any intellectual property or moral rights in such work
product), given, disclosed, created, developed or prepared in
connection with Executive's employment with the Company, whether
ensuing during or after Executive's employment with the Company
("Work Product") shall exclusively vest in and be the sole and
exclusive property of the Company and shall constitute "work made
for hire" (as that term is defined under Section 101 of the U.S.
Copyright Act, 17 U.S.C. 101) with the Company being the person
for whom the work was prepared. In the event that any such Work
Product is deemed not to be a "work made for hire" or does not
vest by operation of law in the Company, Executive hereby
irrevocably assigns, transfers and conveys to the Company,
exclusively and perpetually, all right, title and interest which
Executive may have or acquire in and to such Work Product
throughout the world, including without limitation any copyrights
and patents, and the right to secure registrations, renewals,
reissues, and extensions thereof. The Company and its Affiliates
or their designees shall have the exclusive right to make full
and complete use of, and make changes to all Work Product
without restrictions or liabilities of any kind, and Executive
shall not have the right to use any such materials, other than
within the legitimate scope and purpose of Executive's employment
with the Company. Executive shall promptly disclose to the
Company the creation or existence of any Work Product and shall
take whatever additional lawful action may be necessary, and sign
whatever documents the Company may require, in order to secure
and vest in the Company or its designee all right, title and
interest in and to all Work Product and any intellectual property
rights therein (including full cooperation in support of any
Company applications for patents and copyright or trademark
registrations).
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13. Return of Company Property. In the event of termination
of Executive's employment for any reason, Executive shall return
to the Company all of the property of the Company and its
Affiliates, including without limitation all materials or
documents containing or pertaining to Confidential Information,
and including without limitation, any company car, all computers
(including laptops), cell phones, keys, PDAs, Blackberries,
credit cards, facsimile machines, card access to any Company
building, customer lists, computer disks, reports, files, e-
mails, work papers, Work Product, documents, memoranda, records
and software, computer access codes or disks and instructional
manuals, internal policies, and other similar materials or
documents which Executive used, received or prepared, helped
prepare or supervised the preparation of in connection with
Executive's employment with the Company. Executive agrees not to
retain any copies, duplicates, reproductions or excerpts of such
material or documents.
14. Compliance With Company Policies. During Executive's
employment with the Company, Executive shall be governed by and
be subject to, and Executive hereby agrees to comply with, all
Company policies applicable to employees generally or to
employees at Executive's grade level, including without
limitation, the Company's Code of Business Ethics and Conduct, in
each case, as any such policies may be amended from time to time
in the Company's sole discretion (collectively, the "Policies").
15. Injunctive Relief with Respect to Covenants; Forum,
Venue and Jurisdiction. Executive acknowledges and agrees that a
breach by Executive of any of Section 9, 10, 11, 12, 13 or 14 is
a material breach of this Agreement and that remedies at law may
be inadequate to protect the Company and its Affiliates in the
event of such breach, and, without prejudice to any other rights
and remedies otherwise available to the Company, Executive agrees
to the granting of injunctive relief in the Company's favor in
connection with any such breach or violation without proof of
irreparable harm, plus attorneys' fees and costs to enforce these
provisions. Executive further acknowledges and agrees that the
Company's obligations to pay Executive any amount or provide
Executive with any benefit or right pursuant to Section 8 is
subject to Executive's compliance with Executive's obligations
under Sections 9 through 14 inclusive, and that in the event of a
breach by Executive of any of Section 9, 10, 11, 12, 13 or 14,
the Company shall immediately cease paying such benefits and
Executive shall be obligated to immediately repay to the Company
all amounts theretofore paid to Executive pursuant to Section 8.
In addition, if not repaid, the Company shall have the right to
set off from any amounts otherwise due to Executive any amounts
previously paid pursuant to Section 8(f) (other than the Accrued
Obligations). Executive further agrees that the foregoing is
appropriate for any such breach inasmuch as actual damages cannot
be readily calculated, the amount is fair and reasonable under
the circumstances, and the Company would suffer irreparable harm
if any of these Sections were breached. All disputes not
relating to any request or application for injunctive relief in
accordance with this Section 15 shall be resolved by arbitration
in accordance with Section 18(b).
16. Assumption of Agreement. The Company shall require any
Successor thereto, by agreement in form and substance reasonably
satisfactory to Executive, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such
succession had taken place. Failure of the Company
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to obtain such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitle
Executive to compensation from the Company in the same amount and
on the same terms as Executive would be entitled hereunder if the
Company had terminated Executive's employment Without Cause as
described in Section 8, except that for purposes of implementing
the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination.
17. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject
matter hereof. All prior correspondence and proposals
(including, but not limited to, summaries of proposed terms) and
all prior promises, representations, understandings, arrangements
and agreements relating to such subject matter are merged herein
and superseded hereby.
18. Miscellaneous.
(a) Binding Effect; Assignment. This Agreement shall
be binding on and inure to the benefit of the Company and its
Successors and permitted assigns. This Agreement shall also be
binding on and inure to the benefit of Executive and his
heirs, executors, administrators and legal representatives.
This Agreement shall not be assignable by any party hereto
without the prior written consent of the other parties hereto.
The Company may effect such an assignment without prior written
approval of Executive upon the transfer of all or substantially
all of its business and/or assets (by whatever means), provided
that the Successor to the Company shall expressly assume and
agree to perform this Agreement in accordance with the provisions
of Section 16.
(b) Arbitration. The Company and Executive agree that
any dispute or controversy arising under or in connection with
this Agreement shall be resolved by final and binding arbitration
before the American Arbitration Association ("AAA"). The
arbitration shall be conducted in accordance with AAA's National
Rules for the Resolution of Employment Disputes then in effect at
the time of the arbitration. The arbitration shall be held in
the general Miami, Florida metropolitan area. The dispute shall
be heard and determined by one arbitrator selected from a list of
arbitrators who are members of AAA's Regional Employment Dispute
Resolution roster. If the parties cannot agree upon a mutually
acceptable arbitrator from the list, each party shall number the
names in order of preference and return the list to AAA within
ten (10) days from the date of the list. A party may strike a
name from the list only for good cause. The arbitrator receiving
the highest ranking by the parties shall be selected.
Depositions, if permitted by the arbitrator, shall be limited to
a maximum of two (2) per party and to a maximum of four (4) hours
in duration. The arbitration shall be conducted in English. The
arbitration shall not impair either party's right to request
injunctive or other equitable relief in accordance with
Section 15 of this Agreement.
(c) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Florida
without reference to principles of conflicts of laws.
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(d) Taxes. The Company may withhold from any payments
made under this Agreement all applicable taxes, including, but
not limited to, income, employment and social insurance taxes,
as shall be required by law.
(e) Amendments. No provision of this Agreement may be
modified, waived or discharged unless such modification,
waiver or discharge is approved by the Company and is agreed to
in writing by Executive. No waiver by any party hereto at any
time of any breach by any other party hereto of, or compliance
with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar
or dissimilar provisions or conditions at the same or at
any prior or subsequent time. No waiver of any provision of
this Agreement shall be implied from any course of dealing
between or among the parties hereto or from any failure by any
party hereto to assert its rights hereunder on any occasion or
series of occasions.
(f) Severability. In the event that any one or more of
the provisions of this Agreement shall be or become invalid,
illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions
contained herein shall not be affected thereby.
(g) Notices. Any notice or other communication
required or permitted to be delivered under this Agreement shall
be (i) in writing; (ii) delivered personally, by courier service
or by certified or registered mail, first-class postage prepaid
and return receipt requested; (iii) deemed to have been received
on the date of delivery or, if mailed, on the third business day
after the mailing thereof; and (iv) addressed as follows (or to
such other address as the party entitled to notice shall
hereafter designate in accordance with the terms hereof):
(i) If to the Company, to it at:
c/o Seaboard Corporation
9000 West 67th Street
Shawnee Mission, Kansas 66202
Attention: General Counsel
Telephone: (913) 676-8925
Facsimile: (913) 676-8978
(ii) if to Executive, to his residential address
as currently on file with the Company.
(h) Voluntary Agreement; No Conflicts. Executive
represents that he is entering into this Agreement voluntarily
and that Executive's employment hereunder and compliance with the
terms and conditions of this Agreement will not conflict with or
result in the breach by Executive of any agreement to which he
is a party or by which he or his properties or assets may be
bound.
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(i) Counterparts/Facsimile. This Agreement may be
executed in counterparts (including by facsimile), each of which
shall be deemed an original and all of which together
shall constitute one and the same instrument.
(j) Headings. The section and other headings contained
in this Agreement are for the convenience of the parties only and
are not intended to be a part hereof or to affect the meaning or
interpretation hereof.
(k) Certain other Definitions.
"Affiliate" with respect to any Person, means any
other Person that, directly or indirectly through one or more
intermediaries, Controls, is Controlled by, or is under common
Control with the first Person, including, but not limited to, a
Subsidiary of any such Person.
"Control" (including, with correlative meanings,
the terms "Controlling," "Controlled by" and "under common
Control with"): with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by
contract or otherwise.
"Person" any natural person, firm, partnership,
limited liability company, association, corporation, company,
trust, business trust, governmental authority or other entity.
"Subsidiary" with respect to any Person, each
corporation or other Person in which the first Person owns or
Controls, directly or indirectly, capital stock or other
ownership interests representing fifty percent (50%) or more of
the combined voting power of the outstanding voting stock or
other ownership interests of such corporation or other Person.
"Successor" of a Person means a Person that
succeeds to the first Person's assets and liabilities by merger,
liquidation, dissolution or otherwise by operation of law, or a
Person to which all or substantially all the assets and/or
business of the first Person are transferred.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the Company has duly executed this
Agreement by its authorized representatives, and Executive has
hereunto set his hand, in each case effective as of the date
first above written.
THIS AGREEMENT CONTAINS A PROVISION REQUIRING THAT ARBITRATION
PURSUANT TO THE AMERICAN ARBITRATION ASSOCIATION NATIONAL RULES
FOR THE RESILUTION OF EMPLOYMENT DISPUTES IS THE EXCLUSIVE MEANS
FOR RESOLVING ANY DISPUTE BETWEEN THE PARTIES HERETO AS TO THIS
AGREEMENT.
SEABOARD MARINE LTD
By: /s/ Robert L. Steer
Robert L. Steer
Vice President
Executive:
By: /s/ Edward A. Gonzalez
Edward A. Gonzalez
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