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EXHIBIT 10(ii)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, made and entered into as of the 21st day of January, 1998,
by and between PCS PHOSPHATE COMPANY, INC. (formerly Texasgulf Inc.), a Delaware
Corporation (the "Company"), and XXXXXX X. XXXXXX ("Employee").
W I T N E S S E T H:
WHEREAS, the Company recognizes the Employee's contribution to the growth and
success of the Company has been substantial and desires to assure the Company of
Employee's continued employment, and
WHEREAS, Employee is desirous of continuing to serve the Company on the terms
herein provided;
NOW THEREFORE, in consideration of the promises hereinafter set forth, the
parties agree as follows:
1. Employment. The Company agrees to continue to employ Employee, and
Employee agrees to continue to serve the Company, subject to the terms
and conditions set forth herein.
2. Term. The employment of Employee by the Company as provided in Section
1. hereof will be for a period commencing on the date hereof and ending
on June 30, 1999, unless further extended or sooner terminated as
herein provided.
3. Position and Duties. During the term of this Agreement, Employee shall
serve as President of the Company with general responsibility for all
phosphate and feed operations. Employee agrees to devote all of his
business time, skill, attention and best efforts during normal business
hours to the business of the Company to the extent necessary to
discharge the responsibilities assigned to him during the period of his
employment hereunder, except for (i) service on other corporate, civic
or charitable boards or committees not significantly interfering with
his duties hereunder and (ii) usual, ordinary and customary periods of
vacation.
4. Compensation
i. Base Salary. Employee shall receive a base salary ("Base
Salary") at a monthly rate of $36,666.66 during the term of
this Agreement. The Base Salary shall be reviewed at least
once each year. Any increase in Base Salary or other
compensation shall in no way limit or reduce any other
obligation of the Company hereunder, and once established at
an increased rate, the Base Salary hereunder shall not
thereafter be reduced.
ii. Incentive Compensation: Bonuses. In addition to Base Salary,
Employee shall be entitled to participate in incentive plans
and stock option plans of Potash Corporation of Saskatchewan
Inc. ("PCS") for key employees of PCS and its subsidiaries in
effect from time to time.
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iii. Deferred Compensation. Employee will be protected for the full
amount standing to his credit in his deferred compensation
account as at February 29, 1996 and will be entitled to
payments, upon retirement, in accordance with the Texasgulf
deferred compensation program as it existed April 10, 1995.
Employee's compensation may not, after February 29, 1996, be
deferred.
iv. Expenses. During the term of Employee's employment hereunder,
Employee shall be entitled to receive prompt reimbursement for
all reasonable expenses incurred by Employee in accordance
with the policies and procedures of the Company.
v. Benefit Plans. Employee shall be entitled to participate in or
receive benefits under all of the Company's benefit plans,
policies, practices and arrangements in which Employee is
presently eligible to participate, or plans and arrangements
substituted therefor. Employee shall be entitled to
participate in or receive benefits under any pension plan,
profit-sharing plan, savings plan, life insurance, health and
accident plan, short or long-term disability plan or
arrangement or other benefit plan (collective, the "Benefit
Plans") made available by the Company in the future to its
executives or key management employees, subject to and on a
basis consistent with the terms, conditions and overall
administration of such Benefit Plans. The Company agrees to
secure payment by it of all non-qualified deferred
compensation benefits promised to Employee, including but not
limited to (a) benefits under any deferred compensation
agreements entered into between the Company and Employee and
(b) benefits under the Company's non-qualified excess benefits
pension plan, in a manner consistent with general corporate
practice to protect such benefits.
vi. Vacations. Employee shall be entitled to paid vacation in
accordance with Company's vacation policy as in effect from
time to time. Employee shall be entitled to all paid holidays
given by the Company to its employees.
vii. Perquisites. Employee shall be entitled to continue to receive
fringe benefits and perquisites, including without limitation
the use of an automobile and the payment by the Company of
initiation fees and dues for country clubs, luncheon clubs, or
similar facilities in accordance with the Company's policy
presently in effect.
5. Termination
i. Death. This Agreement shall terminate automatically upon the
death of Employee, subject to the provisions of subparagraphs
6(i) and 6(v) hereof.
ii. Cause. The Company may terminate Employee's employment for
Cause. For the purpose of this Agreement, the Company shall
have "Cause" to terminate Employee's employment hereunder upon
(A) the willful and continued failure by Employee to
substantially perform his duties with the Company (other than
any such failure resulting from Employee's incapacity due to
physical or mental illness), after a demand for substantial
performance is delivered to Employee that specifically
identifies the manner in which the Company believes that
Employee has not
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substantially performed his duties, or (B) the willful
engaging by Employee in gross misconduct materially and
demonstrably injurious to the Company. For the purpose of this
paragraph, no act, or failure to act, on Employee's part shall
be considered "willful" unless done, or omitted to be done, by
Employee in bad faith and without reasonable belief that
Employee's action or omission was in the best interest of the
Company.
iii. Good Reason. Employee may terminate his employment for Good
Reason. For purposes of this Agreement, "Good Reason" shall
mean:
A. without the express written consent of Employee, (x)
the assignment to Employee of any duties materially
inconsistent with Employee's present position,
duties, responsibilities and status with the Company,
or (y) over Employee's objection, a substantial
reduction of Employee's duties and responsibilities;
B. a reduction by the Company in Employee's Base Salary;
C. the failure by the Company to continue in effect any
Benefit Plan, unless a substitute plan or plans
provide Employee with a substantially similar level
of benefits;
D. any failure of the Company to obtain the assumption
of the obligation to perform this Agreement by any
successor as contemplated in paragraph 8. hereof; or
E. any purported termination of Employee's employment
that is not effected pursuant to a Notice of
Termination satisfying the requirements of
subparagraph (iv) below; and for the purpose of this
Agreement, no such purported termination shall be
effective.
iv. Notice of Termination.
Any termination by the Company for Cause or by Employee for
Good Reason or otherwise shall be communicated by Notice of
Termination to the other party hereto. "Notice of Termination"
shall mean a written notice which shall indicate the specific
termination provision in this Agreement relied upon and shall
set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Employee's
employment under the provision so indicated.
v. Date of Termination. "Date of Termination" shall mean the date
specified in the Notice of Termination; provided that if
within thirty (30) days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies
the other party that a dispute exists concerning the
termination, the Date of Termination shall be the date finally
determined to be the Date of Termination, either by mutual
written agreement of the parties or by a binding and final
arbitration award.
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6. Compensation Upon Termination or Death
i. If Employee's employment is terminated by reason of Employee's
death, this Agreement shall terminate, and no further
compensation shall be payable to Employee hereunder except as
specifically provided herein; provided, however, that
Employee's estate, heirs and beneficiaries shall be entitled
to receive the full amount of the Base Salary for the month in
which death occurs, the amount payable under the Survivorship
Plan and all other benefits available to them under the
Company's Benefit Plans.
ii. If Employee's employment shall be terminated for Cause, or if
Employee terminates his employment other than for Good Reason,
the Company shall pay Employee his full Base Salary through
the Date of Termination at the rate in effect at the time
Notice of Termination is given, and the Company shall have no
further obligations to Employee under this Agreement.
Employee's rights under Benefit Plans or other agreements
shall be determined by the provisions contained therein.
iii. If the Company shall terminate Employee's employment other
than for Cause, or if Employee shall terminate his employment
for Good Reason, then the Company shall pay to Employee as
liquidated damages in a lump sum on the fifteenth day
following the Date of Termination, the following amounts:
A. Employee's full Base Salary through the Date of
Termination at the rate in effect at the time Notice
of Termination is given;
B. in lieu of any further salary payments to Employee
for periods subsequent to the Date of Termination, an
amount equal to the product of (a) Employee's Base
Salary at the rate in effect as of the Date of
Termination, multiplied by the number of months,
including partial months, remaining in the term of
this Agreement;
C. all reasonable legal fees and other reasonable
expenses incurred by Employee as a result of such
termination.
iv. If the Company terminates Employee other than for Cause, or if
Employee terminates his employment for Good Reason, the
Company shall retain in full force and effect for the
continued benefit of Employee and his eligible dependents and
beneficiaries, until the last day of the term of this
Agreement, the employee benefits under the Company's Benefit
Plans that they were eligible to receive immediately prior to
the Date of Termination, subject to the terms and conditions
of the Benefit Plans, provided that Employee's continued
participation or the participation of such eligible dependents
or beneficiaries is possible under the general terms and
provisions of such Benefit Plans. In the event that Employee's
participation or the participation of such eligible dependents
or beneficiaries in any such Benefit Plan is barred, the
Company shall arrange to provide Employee or such eligible
dependents or beneficiaries for such period with benefits
substantially similar to those which Employee and such
eligible dependents or beneficiaries would be entitled to
receive under such Benefit
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Plans. At the end of the period of coverage, Employee shall
have the option to have assigned to him at no cost and with no
apportionment of prepaid premiums, any assignable insurance
policy owned by the Company and relating specifically to
Employee. The provisions of this subparagraph 6.(iv) shall be
in addition to and not in limitation of the provisions of
subparagraph 6.(v) below.
v. If the Employee shall be terminated by the Company other than
for Cause, or if Employee terminates his employment for Good
Reason, or if Employee shall die after such termination and
during what would otherwise be the term of this Agreement,
then, in addition to the other payment provided for in this
paragraph 6., Employee and his eligible dependents and
beneficiaries shall be entitled to receive from the Company
benefits equivalent to the retirement and death benefits they
would have been entitled to receive under the Company's
retirement and death benefit plans if Employee had been
employed pursuant to this Agreement throughout the entire term
of this Agreement, or to the date of his death, as the case
may be.
vi. Employee shall not receive payments of Base Salary under this
Agreement for any period during which Employee receives
payments under the Company's short or long-term disability
plans.
vii. Employee shall not be required to mitigate the amount of any
payment provided for in this paragraph 6. by seeking other
employment or otherwise, nor shall the amount of any payment
provided for in this paragraph 6. be reduced by any
compensation earned by Employee as the result of employment by
another employer after the Date of Termination, or otherwise.
viii. Employee's rights under deferred compensation agreements shall
be determined by the provisions contained herein.
7. Confidential Information. During the course of his employment, Employee
will have access to confidential records, data, formulae,
specifications and secret inventions and processes owned and developed
by the use in the course of the business of the Company and its
subsidiaries and which will be disclosed to Employee in confidence.
Employee agrees that he will not, during the term or after the
conclusion of his employment by the Company, except as may be
reasonably necessary or appropriate in connection with the performance
by Employee of his duties as an executive of the Company or as may be
authorized by the written consent of the Company, either directly or
indirectly, use, publish or disclose, or authorized anyone else to use,
publish or disclose, any proprietary knowledge or information
concerning any such records, data, formulae, specifications, inventions
or processes relating to the business of the Company and its
subsidiaries.
8. Successors: Binding Agreement.
i. The Company shall require any successor to all or
substantially all of the business or assets of the Company
(whether direct or indirect, by purchase, merger,
consolidation or otherwise), by agreement in form and
substance satisfactory to Employee, to expressly assume and
agree to perform this Agreement in the same manner and to the
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same extent that the Company would be required to perform if
no such succession had taken place. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and
any successor to its business or assets as aforesaid which
executes and delivers the agreement provided for in this
paragraph 8. or which otherwise becomes bound by all the terms
and provisions of this Agreement by operation of law.
ii. This Agreement shall inure to the benefit of and be
enforceable by Employee's personal or legal representatives,
executors, administrators, successors, heirs, distributees,
devisees and legatees.
9. Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by
certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Employee:
Xx. Xxxxxx X. Xxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
If to the Company:
PCS Phosphate Company, Inc.
c/o Potash Corporation of Saskatchewan Inc.
500, 000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxx X0X 0X0
Attention: Chief Executive Officer, PCS Inc.
or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notices of change
of address shall be effective only upon receipt.
10. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed
to in writing signed by Employee and an appropriate officer of the
Company. No waiver by either party at any time of any breach by the
other party of, or compliance with, any condition or provision of this
Agreement to be performed by the other party shall be deemed a waiver
of similar or dissimilar provisions or conditions at the same time or
at any prior or subsequent time. The validity, interpretation,
construction and performance of this Agreement shall be governed by the
laws of the State of North Carolina.
11. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
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12. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in
accordance with the rules of the American Arbitration Association then
in effect. The decision of the arbitrator shall be final and binding on
both parties. Judgment may be entered on the arbitrator's award in any
court having jurisdiction.
13. Headings. The headings contained herein are for reference purposes only
and shall not in any way affect the meaning or interpretation of any
provision of this Agreement.
14. Sole Agreement: Upon the entering into this Agreement by both parties
any previous contracts of employment between the parties are terminated
and no longer of any force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first above written.
PCS PHOSPHATE COMPANY, INC.
By: /s/
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By: /s/
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XXXXXX X. XXXXXX
/s/
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