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EXHIBIT 10.21
KEY EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT between Monsanto Company, a Delaware corporation
("Monsanto"), and Xxxxxxx X. Xxxxxxxxxx (the "Executive");
WHEREAS, the Executive Compensation and Development Committee
(the "Committee") of the Board of Directors (the "Board") of
Monsanto has recommended and the Board has approved the execution
of employment agreements with specified key executives of
Monsanto;
WHEREAS, the Board has determined that the Executive is a key
executive of Monsanto;
WHEREAS, should Monsanto receive any proposal from a third party
concerning a possible business combination with, or an
acquisition of, equity securities of Monsanto, the Board believes
it imperative that Monsanto and the Board be able to rely upon
the Executive to continue in his position, and that Monsanto and
the Board be able to receive and rely upon his advice, if they
request, as to the best interests of Monsanto and its
shareholders without concern that the Executive might be
distracted by the personal uncertainties and risks created by
such a proposal; and
WHEREAS, should Monsanto receive any such proposals, in addition
to the Executive's regular duties, the Executive may be called
upon to assist in the assessment of such proposals, advise
Monsanto and the Board as to whether such proposals would be in
the best interests of Monsanto and its shareholders, and to take
such other actions as Monsanto and the Board might determine to
be appropriate;
WHEREAS, the retention of Executive during the time any such
proposal is being evaluated and following any business
combination or acquisition will provide needed continuity of
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management, thus enhancing Monsanto's business and business
prospects, and shareholder value;
NOW, THEREFORE, to assure Monsanto and the Board that it will
have the continued dedication of the Executive and the
availability of his advice and counsel notwithstanding the
possibility, threat or occurrence of such a proposal, and to
induce the Executive to remain in the employ of Monsanto, and for
other good and valuable consideration, Monsanto and the Executive
agree as follows:
1. Employment. Monsanto hereby agrees to continue the
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Executive in its employ, and the Executive hereby agrees to
remain in the employ of Monsanto for the period commencing
on the Effective Date of this Agreement (as defined in
Section 5(b) below) and ending on the earlier to occur of
the third anniversary of such date or the Executive's Normal
Retirement Date under the Monsanto Company Salaried
Employees' Pension Plan (the "Employment Period"), with the
Executive to exercise such authority and perform such
executive duties as are commensurate with the authority
being exercised and duties being performed by the Executive
immediately prior to the Effective Date of this Agreement,
which duties shall be performed at the location where the
Executive was employed immediately prior to the Effective
Date of this Agreement. The Executive agrees that during
the Employment Period he shall devote his full business time
exclusively to his executive duties as described herein and
perform such duties faithfully and efficiently; provided,
however, that Executive shall also be permitted to serve or
continue to serve as a member of the Board of Directors of
other corporations.
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2. Compensation, Compensation Plans, Perquisites. During the
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Employment Period, the Executive shall be compensated as
follows:
(a) He shall receive an annual salary at a rate which is
not less than his rate of annual salary immediately
prior to the Effective Date of this Agreement, with the
opportunity for increases, from time to time
thereafter, which are in accordance with the Monsanto's
regular practices.
(b) He shall be eligible to participate on a reasonable
basis in the applicable bonus, stock option, restricted
stock, performance award and other incentive compensa-
tion plans (hereinafter collectively referred to as
"Incentive Compensation Plans") sponsored by Monsanto
(including, but not limited to, the Monsanto Management
Incentive Plan of 1984 and the Monsanto Management
Incentive Plan of 1988/I), which provide opportunities
to receive compensation which are the greater of the
opportunities provided by Monsanto after the Effective
Date of this Agreement for executives with comparable
duties or the opportunities under any such plans under
which he was participating immediately prior to the
Effective Date of this Agreement.
(c) He shall be entitled to participate in the applicable
Pension Plans and Excess Benefit Plans sponsored by
Monsanto (including, but not limited to, the Monsanto
Company Salaried Employees' Pension Plan, the Monsanto
Company Savings and Investment Plan, the Monsanto
Company ERISA Parity Pension Plan and the Monsanto
Company ERISA Parity SIP Plan), which provide pension,
retirement benefits and savings opportunities which are
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the greater of those provided by Monsanto after the
Effective Date of this Agreement for executives with
comparable duties or the opportunities under any such
plans in which he was participating immediately prior
to the Effective Date of this Agreement.
(d) He shall be entitled to participate in the applicable
Employee Welfare Plans sponsored by Monsanto
(including, but not limited to, those which provide
medical, dental, life insurance, and disability income
benefits) and receive perquisites which provide
Employee Welfare Plan benefits and perquisites which
are the greater of those provided by Monsanto after the
Effective Date of this Agreement to executives with
comparable duties or the Employee Welfare Plan benefits
and perquisites to which he was entitled immediately
prior to the Effective Date of this Agreement.
(e) He shall be entitled to the benefits provided in any
Supplemental Executive Retirement Plan ("SERP") or
other similar contract which is applicable to him.
3. Termination of Employment After Change of Control.
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(a) Notwithstanding the provisions of Sections 1 and 2
above, if the Executive terminates employment in a
manner which constitutes a Termination of Employment
(as defined in Section 5(c) below) during the
Employment Period, Monsanto shall pay to the Executive
a Termination Amount. Except as provided in Section
3(b) below, the Termination Amount shall be an amount
equal to:
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(i) two times the sum of the Executive's annual base
pay in effect at the time of his Termination of
Employment (which in no event shall be less than
his annual base pay in effect at the Effective
Date of this Agreement) plus the Executive's
target annual bonus under the applicable Incentive
Compensation Plan for the year in which his
Termination of Employment occurs; plus
(ii) if the Executive's Termination of Employment
occurs within the first year of an applicable
long-term Incentive Compensation Plan cycle, an
additional amount equal to the Executive's target
annual bonus under the applicable Incentive
Compensation Plan for the year in which his
Termination of Employment occurs.
The amount due hereunder shall be paid in a single sum
as soon as practicable after the Executive's
Termination of Employment and shall be in lieu of any
further obligation of Monsanto to make salary payments
under Section 2(a) or to permit the Executive to
further participate in any of the Incentive
Compensation, Pension and Employee Welfare Plans
described in Sections 2(b), 2(c) and 2(d) hereof
(except and to the extent that under the terms of any
of those plans the Executive is permitted to
participate as a terminated or retired employee).
In the event that there are fewer than twenty-four
whole or partial months remaining from the date of the
Executive's Termination of Employment to his Normal
Retirement Date, the amount payable under this
paragraph shall be reduced by multiplying it by a
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fraction, the numerator of which is the number of whole
or partial months remaining to his Normal Retirement
Date and the denominator of which is twenty-four.
(b) Excise Tax Provision.
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(i) The Public Accounting Firm that serves as
Monsanto's principal independent auditors
immediately prior to the Effective Date of this
Agreement ("Public Accounting Firm") shall
determine if any payment made pursuant to this
Agreement or any other payment received or deemed
to be received by Executive from Monsanto or any
of its subsidiaries and affiliates, or from any
Pension, Employee Welfare, Incentive Compensation
or other plans sponsored by Monsanto or any of its
subsidiaries and affiliates (collectively, the
"Payment") is or will become subject to any excise
tax under Section 4999 of the Internal Revenue
Code of 1986, as amended ("Code"), or any similar
tax payable under any federal, state, local or
other law ("Excise Taxes"). The determination and
computations made by the Public Accounting Firm
shall be based on its understanding of Section
280G and 4999 of the Code, any regulations
promulgated thereunder and any relevant rulings or
judicial decisions relative thereto, and its
determinations and computations shall be final and
binding on all parties. All determinations
hereunder shall be made in adequate time to permit
the Executive to prepare and file his individual
tax returns in a timely fashion.
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(ii) If it is determined by the Public Accounting Firm
that any Payment is or will become subject to any
Excise Taxes, then it shall determine if the
payment of the Excise Taxes in addition to any
federal, state, local or other income, excise or
other taxes ("Other Taxes") payable by the
Executive with respect to the Payment to be
received will cause the Executive to pay an amount
of Excise and Other Taxes such that the net
Payment the Executive will receive after payment
of all Excise and Other Taxes on such Payment is
less than if the Payment he would receive was
reduced to the maximum amount payable without
imposition of any Excise Taxes ("Economic
Detriment".) If the Public Accounting Firm
determines that the Executive will incur an
Economic Detriment as a result of the receipt of
the full Payment, the Payment to the Executive
shall be reduced to the maximum possible Payment
that can be paid the Executive without him
incurring any Economic Detriment.
(iii) The Public Accounting Firm, in determining whether
the Payment is subject to Excise Taxes, may
reasonably conclude that certain items are neither
subject to Excise Taxes, nor are to be counted in
determining whether the Payment is subject to
Excise Taxes or may be considered to be reasonable
compensation for personal services (such items
hereinafter referred to as "Non-Included Items").
If at a later date, it is determined (pursuant to
final regulations or published rulings of the
Internal Revenue Service, final judgment of a
court of competent jurisdiction or, if requested
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by the Executive, an opinion of a nationally
recognized accounting or tax law firm) that any of
the Non-Included Items are subject to Excise
Taxes, are to be counted in determining whether
all or any portion of the Payment is subject to
Excise Taxes or are not considered to be
reasonable compensation for personal services,
with the result that the Executive will incur an
Economic Detriment. Monsanto shall, immediately
upon such determination pay the Executive an
amount equal to the sum of (A) any such Excise
Taxes, plus (B) any interest, fines, penalties,
expenses and other costs incurred by the Executive
and resulting from the Executive having taken a
position that the Payment or a portion of the
Payment, is not subject to Excise Taxes in
accordance with a determination made pursuant to
Subsection(b)(ii) above, plus (C) the amount
necessary to reimburse the Executive for any
federal, state, local or other income taxes
payable by the Executive with respect to the
amounts of (I) the Excise Tax reimbursement
provided in Clause A above, (II) the reimbursement
for interest, fines, penalties and other amounts
paid provided in Clause B above, plus (III) the
amount paid to the Executive as reimbursement of
any federal, state, local or other income, excise
or other taxes (as determined for Clauses I, II
and III hereof) in accordance with the formula set
forth on Schedule 3, which is attached hereto and
incorporated by reference herein.
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(iv) Consultation. At Monsanto's reasonable request
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the Executive shall consult with Monsanto
regarding (A) the preparation and filing of the
Executive's federal income and excise tax returns
for any year in which any Payment is received, and
(B) any federal tax issues which may arise with
respect to any Payment made in connection with a
Change of Control. At Monsanto's request, the
Executive shall retain counsel and other experts
and consultants reasonably satisfactory to
Monsanto in connection with any or all of the
matters described in items (A) and (B) of this
Subsection 3(b)(iv) and Monsanto shall reimburse
the Executive (in accordance with Section 6(b)
hereof) for all fees, expenses and costs
(including audit costs, attorneys' and
accountants' fees and expenses, and court costs)
incurred by Executive as a result of the retention
of such counsel and other experts and consultants.
Anything to the contrary herein notwithstanding,
the Executive shall not in any way be restricted
from making such disclosure in his individual tax
returns with respect to payments received
hereunder as he shall deem reasonable and
appropriate.
(v) The fees, expenses and costs charged by the Public
Accounting Firm shall be paid entirely by
Monsanto.
4. Executive Covenants, Duties and Responsibilities.
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(a) Satisfaction and Discharge. Except for any payments or
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benefits payable under a Supplemental Executive
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Retirement Plan or Agreement ("SERP"), Executive hereby
acknowledges and agrees that Monsanto's execution and
delivery of this Agreement to the Executive is in full
satisfaction, fulfillment and discharge of any and all
claims the Executive may have against Monsanto, any
Monsanto subsidiary or affiliate, any Monsanto
separation pay plan and any of their respective
directors, officers, employees, agents or fiduciaries
for any contract notice pay, or separation, severance,
or redundancy pay to which Executive is or otherwise
might be entitled to under any applicable employment
agreement, international assignment agreement,
separation or severance pay plan or policy, or any
other welfare plan, or pursuant to any statute, court
or administrative decision of any country (hereinafter
individually and collectively referred to as "Severance
Payments"). If any Severance Payments are required to
be made to Executive, Executive agrees that any
payments made pursuant to this Agreement shall be
offset and reduced by the amount of the Severance
Payments.
(b) Executive as a Consultant. During the period
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commencing on the date of Executive's Termination of
Employment and ending one year thereafter, Executive
agrees that, during such times as are compatible with
Executive's other obligations, duties and
responsibilities, he will perform such consulting
services as Monsanto may reasonably request at such
locations as shall be reasonably convenient to the
Executive. Monsanto shall pay Employee for such
services at rates which are comparable to the
Executive's compensation rate in effect immediately
prior to his date of Termination of Employment. If the
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Executive incurs any reasonable travel or other
expenses in connection with the performance of his
services pursuant to this Section 4(b), Monsanto shall
promptly reimburse the Executive for all such expenses.
In the performance of the consulting services
hereunder, the Executive shall be in all respects an
independent contractor without the legal capacity to
bind Monsanto and shall not be considered an agent or
employee of Monsanto. The Executive shall be free to
render services to or accept employment with others
while providing consulting services to Monsanto.
(c) Employment Contract. Executive acknowledges and agrees
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that the provisions of this Agreement shall not have
any effect on Executive's Monsanto Employment Contract,
which remains in full force and affect. As used
herein, the term "Monsanto Employment Contract" shall
mean any contracts (including any and all amendments
thereto) between Monsanto and the Executive relating to
contract notice, confidential information, competitive
activity, intellectual property, ideas, inventions,
patent assignments and other similar matters and which
is usually signed by a Monsanto employee prior to or at
commencement of his employment.
5. Definitions.
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(a) "Change of Control." For the purposes of this
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Agreement, a "Change of Control" shall be deemed to have
taken place if: (i) a third party, including a "group"
as defined in Section 13(d)(3) of the Securities
Exchange Act of 1934, becomes the beneficial owner of
shares of Monsanto having 25% or more of the total
number of votes that may be cast for the election of
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directors of Monsanto; or (ii) as the result of, or in
connection with, any cash tender or exchange offer,
merger or other business combination, sale of assets or
contested election, or any combination of the foregoing
transactions (a "Transaction"), (A) the persons who
were directors of Monsanto before the Transaction shall
cease to constitute a majority of the Board of
Directors of Monsanto or any successor to Monsanto, or
(B) there is the sale, exchange or other disposition of
all or substantially all of Monsanto's assets to a
third party.
(b) The "Effective Date of this Agreement" shall be the
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date on which a Change of Control occurs.
(c) "Termination of Employment" shall occur:
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1. if Monsanto, within three years after a Change of
Control, terminates the Executive's employment
with Monsanto other than:
(i) for Justifiable Cause; or
(ii) as a consequence of his death, Total and
Permanent Disability (as determined under the
Monsanto Salaried Employees' Disability
Income Plan) or his retirement at or after
his Normal Retirement Date;
2. if the Executive resigns as an employee of
Monsanto for Good Reason within three years after
a Change of Control.
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(d) "Justifiable Cause." Monsanto shall have Justifiable
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Cause to terminate the Executive's employment hereunder
upon the Executive's:
1. willful and continued failure to perform his usual
duties or to work full-time for Monsanto (other
than any such failure resulting from the Execu-
tive's incapacity due to physical or mental
illness);
2. willful engagement in conduct that is materially
injurious to Monsanto;
3. willful engagement in actions that result in or
are intended to result in the illegal personal
enrichment of the Executive at the expense of
Monsanto;
4. embezzlement of funds or misappropriation of other
property;
5. engaging in acts of dishonesty or common law fraud
in connection with his employment; or
6. commission of a felony.
For purposes of this subsection, no act or failure to
act on the part of the Executive shall be considered
"willful" unless such act or omission was not in good
faith and without reasonable belief that his action or
omission was in the best interests of Monsanto.
The employment of the Executive shall in no event be
considered to have been terminated by Monsanto for
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Justifiable Cause if termination of his employment took
place:
1. as the result of bad judgment or negligence on the
part of the Executive;
2. as the result of an act or omission without intent
of gaining therefrom directly or indirectly a
profit to which the Executive was not legally
entitled;
3. because of an act or omission believed by the
Executive in good faith to have been in or not
opposed to the interests of Monsanto;
4. because of any act or omission in respect of which
a determination could properly be made that the
Executive met the applicable standard of conduct
prescribed for indemnification or reimbursement or
payment of expenses under either the Bylaws of
Monsanto or the laws of the State of Delaware or
the directors' and officers' liability insurance
of Monsanto, in each case as in effect at the time
of such act or omission;
5. as the result of an act or omission which occurred
more than twelve calendar months prior to the
notification of the Executive of his Termination
of Employment for such act or omission unless the
commission of such act or such omission could not
at the time of such commission or omission have
been known to either a member of the Board of
Directors (other than the Executive, if he is then
a member of the Board of Directors) or the Execu-
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tive's immediate superior, in which case more than
twelve calendar months from the date that the
commission of such act or such omission was or
could reasonably have been so known; or
6. as the result of a continuing course of action
which commenced and was or could reasonably have
been known to a member of the Board of Directors
(other than the Executive if he is then a member
of the Board of Directors) or the Executive's
immediate superior more than twelve calendar
months prior to notice having been given to the
Executive of his Termination of Employment.
(e) "Good Reason." Resignation by the Executive as an
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employee for "Good Reason" shall mean the resignation
of the Executive as an employee within three years
following a Change of Control after:
1. a good faith determination by the Executive that
his duties, status or responsibilities have been
diminished or that he has been assigned duties
inconsistent with his duties with Monsanto prior
to the Change of Control;
2. a removal or the Executive from office (if the
Executive is an officer of Monsanto) or any
failure to reelect the Executive to office;
3. any reduction in the Executive's base salary;
4. any failure by Monsanto to continue any Incentive
Compensation Plans in which the Executive was
entitled to participate in at the time the Change
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of Control occurred or to provide comparable
successor Incentive Compensation Plans should
amendment of existing Incentive Compensation Plans
become necessary or advisable or any failure by
Monsanto to continue the Executive in any
Incentive Compensation Plan on at least the same
basis as he was entitled to participate
immediately before the Change of Control;
5. the failure by Monsanto to continue in effect and
make contributions to, or fund, any Pension Plan
(except for the Monsanto Company Payroll Related
Employee Stock Ownership Plan), Excess Benefit
Plan or Employee Welfare Plan (except for the
Monsanto Employee Stock Purchase Plan), in which
the Executive is participating at the time of a
Change of Control of Monsanto (or plans providing
him with substantially similar benefits), the
taking or any action by Monsanto which would
adversely affect his participation in or
materially reduce his benefits under any of such
plans or deprive him of any material perquisites
or fringe benefit enjoyed by him at the time of
the Change of Control, or the failure by Monsanto
to provide him with the number of paid vacation
days to which he is then entitled in accordance
with Monsanto's normal vacation policy in effect
on the date hereof;
6. the failure by Monsanto to continue in effect or
honor the provisions of any SERP which covers the
Executive;
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7. any relocation of the Executive's principal place
of employment more than fifty (50) miles from the
Executive's location immediately before the Change
of Control unless Executive is on international
assignment at the time of the Change of Control
and the relocation is a result of Executive's
being repatriated pursuant to the terms of his
international assignment agreement; or
8. the failure by Monsanto to obtain the assumption
of the performance of this Agreement by any
successor.
(f) "Normal Retirement Date" shall mean the first day of
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the month following the month in which the executive
attains age 65.
(g) "Monsanto." Where appropriate, all references to
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"Monsanto" shall also refer to any Monsanto subsidiary
or affiliate, and to any successor, whether such
succession results from a merger consolidation,
liquidation, purchase of securities, acquisition of
assets or otherwise.
(h) "Successor Plans." Where appropriate, all references
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to a Monsanto Pension, Employee Welfare Benefit,
Incentive Compensation Plan or other plans shall
include any successor plan adopted by Monsanto or any
successor.
(i) "Pension Plan," "Employee Welfare Plan," "Excess
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Benefit Plan," and "ERISA." As used herein, the terms
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"Pension Plan," "Employee Welfare Plan" and "Excess
Benefit Plan," shall have the same meanings as they do
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in Section 3 of Title I of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA").
6. General.
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(a) Indemnification. If litigation shall be brought to
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enforce or interpret any provision contained herein,
Monsanto, to the extent permitted by applicable law and
Monsanto's Articles of Incorporation and Bylaws, hereby
indemnifies the Executive for his reasonable attorneys'
fees and disbursements incurred in such litigation, and
hereby agrees to pay prejudgment interest on any money
judgment obtained by the Executive calculated at the
Citibank, N.A. prime interest rate in effect from time
to time from the date that payment(s) to him should
have been made to him under this Agreement.
(b) Expenses.
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(i) If the Executive incurs (A) legal or other fees
and expenses in an effort to establish entitlement
to benefits under this Agreement, regardless of
whether the Executive ultimately prevails, or (B)
legal, accounting and other fees and expenses in
connection with the retention of counsel and other
experts and consultants as requested by Monsanto
pursuant to Subsection 3(b)(iv) above, Monsanto
shall reimburse him for such fees and expenses.
To the extent such fees and expenses may be
covered, and be reimbursable, under Monsanto's
officers' and directors' insurance policies, the
Executive shall, following payment of such fees
and expenses by Monsanto, reasonably cooperate
with Monsanto in obtaining reimbursement of such
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fees and expenses pursuant to such policies, and
any amounts so recovered shall be paid to
Monsanto.
(ii) Reimbursement of fees and expenses described in
Subsection 6(b)(i), above, shall be made monthly
during the course of any action upon the written
submission of a request for reimbursement together
with proof that the fees and expenses were
incurred.
(c) Payment Obligations Absolute. Monsanto's obligation to
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make the payments and arrangements provided herein
shall be absolute and unconditional and shall not be
affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment,
defense or other right which Monsanto may have against
him or anyone else. All amounts payable by Monsanto
hereunder shall be paid without notice or demand. Each
and every payment made hereunder by Monsanto shall be
final and Monsanto shall not seek to recover all or any
part of such payment from the Executive or from
whosoever may be entitled thereto, for any reason
whatsoever. The Executive shall not be obligated to
seek other employment in mitigation of the
post-employment amounts payable or arrangements made
under any provision of this Agreement, and the
obtaining of any post-termination employment shall in
no event effect any reduction of Monsanto's obligations
to make the post-employment payments and arrangements
required to be made under this Agreement.
(d) Withholding. Monsanto shall withhold all amounts
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required by law to be withheld from any payments made
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pursuant to this agreement, including any or all
amounts required to be withheld by the Code or by the
Federal Insurance Contributions Act, any applicable
state or foreign country's income tax act, and any
applicable city, county or municipality's earnings or
income tax act.
(e) Successors. This Agreement shall be binding upon and
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inure to the benefit of the Executive and his estate,
and Monsanto and any successor, direct or indirect, of
Monsanto, whether such succession results from a
merger, consolidation, liquidation, purchase of
securities, acquisition of assets or otherwise.
(f) Limitations on Payments. The interests of the
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Executive are not subject to the claims of his
creditors and may not be voluntarily or involuntarily
sold, transferred, alienated, assigned, pledged,
anticipated, or encumbered. Any attempt by the
Executive or any other person or entity to sell,
transfer, alienate, assign, pledge, anticipate,
encumber, charge or otherwise dispose of any right to
benefits payable under this Agreement shall be void.
(g) Severability. Any section in this Agreement which is
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prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without
invalidating or affecting the remaining sections
hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render
unenforceable such section in any other jurisdiction.
Any section or part of a section so declared to be
unlawful or invalid shall be construed in a manner
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which will give effect to the terms of such section or
part of a section to the fullest extent possible while
remaining lawful and valid.
(h) Controlling Law. This Agreement shall in all respects
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be governed by, and construed in accordance with, the
laws of the State of Delaware.
(i) Headings and Titles. Section headings and titles are
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for reference only. In the event of a conflict between
a title and the content of a section, the content of
the section shall control.
(j) No Employment Guarantee. This Agreement shall not be
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deemed to entitle the Executive to continued employment
with Monsanto, and the rights of Monsanto to terminate
the employment of the Executive shall continue as fully
as if this Agreement were not in effect, provided that
after a Change of Control, any Termination of
Employment shall entitle the Executive to the benefits
provided in Section 3 above.
(k) Assignment. Except as may be specifically provided by
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operation of law, this Agreement may not be assigned by
any party hereto without the prior written consent of
the other party.
(l) Amendment and Waiver. This Agreement shall not be
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altered, amended or modified except by written instru-
ment executed by the Company and Employee. A waiver of
any term, covenant, agreement or condition contained in
this Agreement shall not be deemed a waiver of any
other term, covenant, agreement or condition, and any
waiver of any default in any such term, covenant,
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agreement or condition shall not be deemed a waiver of
any later default thereof or of any other term,
covenant, agreement or condition.
(m) Notices. All notices required by this Agreement shall
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be in writing and delivered by hand or by first class
registered or certified mail, postage prepaid, and
addressed as follows:
If to Monsanto: Monsanto Company
000 Xxxxx Xxxxxxxxx Xxxx.
Xx. Xxxxx, XX 00000
Attention: General Counsel
If to the Executive: Xxxxxxx X. Xxxxxxxxxx
00000 Xxxxxxxxxxx Xx.
Xxxxxxxxxxxx, XX 00000
Either party may from time to time designate a new
address by notice given in accordance with this
Section.
(n) Termination. This Agreement shall terminate if the
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Board determines that the Executive is no longer a key
executive and so notifies the Executive in writing
prior to a Change of Control; except that such
determination shall not be made, and if made, shall
have no effect, during any period of time when Monsanto
has knowledge that any third party has taken steps
reasonably calculated to effect a Change of Control
until, in the opinion of the Board, the third party has
abandoned or terminated his efforts to effect a Change
of Control.
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IN WITNESS WHEREOF, the parties have executed this Agreement on
the 5th day of July 1988.
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MONSANTO COMPANY
By /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Chairman of the Board and
Chief Executive Officer
/s/ Xxxxxxx Xxxxxx /s/ X.X. Xxxxxxxxxx
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Witness Executive
24
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SCHEDULE 3
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Gross-up Formula
Any payment made pursuant to Section 3(b) of the Agreement (a
"Gross-up Payment") shall be calculated as follows:
A. The Gross-up Payment shall be the product of (i) the amount
of the Excise Taxes, any interest, fines, penalties,
expenses, and other costs relating to Excise Taxes incurred
by the Executive times (ii) a fraction the numerator of
which is 1, and the denominator of which is 1 minus the
combined total rates expressed as a fraction, determined in
accordance with paragraph B hereof, of all federal, state,
local and other income and other taxes and any Excise Taxes
applicable to such Gross-up Payment. In the event that
different rates of tax are applicable to any portion of a
Gross-up Payment, the denominator of the fraction set forth
in clause (ii) above shall be 1 minus the combined total of
the weighted average rates expressed as a fraction,
determined in accordance with paragraph B hereof, of all
federal, state, local and other income and other taxes and
any Excise Taxes applicable to such Gross-up Payment.
B. For purposes of determining the denominator of the fraction
set forth in clause (ii) of paragraph A hereof, the rates of
federal, state, local and other income and other taxes and
Excise Taxes shall be the lesser of the actual rates of such
taxes (giving effect to the Executive's net effective tax
rates determined net of the benefit of any tax deduction or
tax credit) or the rates set forth in the table below.
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Tax Rate
--- ----
Federal Income Tax The highest marginal federal income
tax rate in effect for the applicable
year, including the effective rate
resulting from Code Section l(g)
(relating to the phaseout of the 15
percent rate and personal exemptions
and any surcharge), ("Federal Income
Tax Rate")
State & Local Income Tax Actual Rate x (100 minus the Federal
Income Tax Rate)
Excise Tax 20% (or if Section 4999 of the Code
is amended, the excise tax rate in
effect after the amendment)
All Other Taxes Actual Net Tax Rate
26
EXECUTIVE TERMINATION OF EMPLOYMENT
-----------------------------------
ELECTION FORM
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In the event that I Terminate Employment with Monsanto Company
("Monsanto") following a Change of Control of Monsanto, I
hereby elect to receive the actuarially commuted value of my
Supplemental Pension and Pension Parity Plan benefits, and any
amounts deferred under the Bonus Deferral Plan (including the
actuarially commuted value of any amounts accrued under the
Supplemental Pension Plan) in a single sum as soon as
practicable after I Terminate Employment. I acknowledge and
agree that once this election is filed with the Management
Liaison Officer to the Executive Compensation and Development
Committee ("ECDC") of Monsanto's Board of Directors, it shall
be binding and irrevocable except that if there is a Change of
Control of Monsanto, I will have an opportunity to make a
second written election within 30 days of the Change of
Control to receive my Supplemental Pension in the form of
monthly payments and my Pension Plan and Supplemental Pension
Plan benefits and any deferred bonus payments as otherwise
permitted under those plans.
As used herein the terms "Supplemental Pension" and "Terminate
Employment" have the same meanings as they do in my
Supplemental Executive Retirement Plan ("SERP") contract dated
June 27, 1988. The term "Change of Control" has the same
meaning as it does in my Key Executive Employment Agreement.
Date: 5-7-1988 /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
After signature, return to Xx. X. X. Xxxxx, Management Liaison
Officer to the ECDC, x/x X. X. Xxxxxxxxxxx, Xxxx Xxxx X0XX.
