CONSULTING AGREEMENT
Exhibit 10.19
THIS CONSULTING AGREEMENT (the “Agreement”) is made and entered into this ______ day of
_________, ______, by and between AGCO CORPORATION, a Delaware corporate (“Company”), and Xxxxxx X.
Xxxx, a U.S. resident (“Consultant”).
BACKGROUND:
WHEREAS, Company desires to retain Consultant to provide certain services to Company, and
Consultant desires to provide such services to Company, all subject to and in accordance with the
terms and conditions contained herein.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premise, the mutual promises, covenants and
agreements contain herein, and other good and valuable consideration, the receipt and sufficiency
of hereby acknowledged, the parties hereto hereby agree as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement, Company
hereby retains Consultant to provide to Company certain consulting services as required by the
Chief Executive Officer from time to time (the “Services”), and Consultant agrees to render the
Services to Company. Consultant shall perform the Services upon the specific request of, and in
accordance with the directions of, Company in each instance. Company may assign this Agreement to
any wholly owned affiliate it so designates.
2. Obligations of Consultant. In his performance of the Services hereunder,
Consultant shall at all times comply with and abide by the terms and conditions set forth in this
Agreement and all applicable policies and procedures of Company. Consultant shall further perform
the Services in accordance with all applicable laws, rules and regulations and by following and
applying the highest professional guidelines and standards.
3. Compensation. Subject to the terms and conditions set forth in this Agreement, and
as full and complete compensation for the Services, Company shall pay to Consultant, and Consultant
shall accept, an annual fee of $200,000.00 each year during the Term. Each annual fee shall be
paid annually in advance January 15 of each year of the Term.
4. Expense Reimbursement. The Company shall pay or reimburse Consultant for all
reasonable business expenses incurred or paid by Consultant in the course of performing his duties
hereunder, including but not limited to reasonable travel expenses for Consultant and his spouse.
As a condition to such payment or reimbursement, however, Consultant shall maintain and provide to
the Company reasonable documentation and receipts for such expenses.
5. Independent Consultant. Both Consultant and Company, in the performance of this
Agreement, will be acting in their own separate capacities and not as agents, employees, partners,
joint venturers or associates of one another. It is expressly understood and agreed that
Consultant is an independent contractor of Company in all manners and respects and that
Consultant is not authorized to bind Company to any liability or obligation or to represent
that he has any such authority. Consultant shall be solely responsible for all of his withholding
taxes, social security taxes, unemployment taxes, and workers’ compensation insurance premiums.
6. Term and Termination.
(a) Unless sooner terminated pursuant to the terms hereof of this Agreement shall commence as
of January 1, 2010, and continue for a period of three (3) years (the “Term”).
(b) Notwithstanding anything else contained herein to the contrary, and in addition to any
other rights and remedies available at law, in equity or hereunder, either party hereto may cancel
and terminate this Agreement if the other party fails to correct or cure any material breach
hereunder within thirty (30) days after it receives written notice of such breach from the
non-breaching party.
7. Non-Competition. Consultant agrees that during the Term and for a period of
eighteen (18) months from the date of the termination or expiration of this Agreement, he will not,
directly or indirectly, compete with the Company by providing to any company that is in a
“Competing Business” services substantially similar to the services currently being provided by
Consultant.
8. Nonsolicitation of Employees. For a period of two years after the termination or
expiration of this Agreement, Consultant shall not, on his own behalf or on behalf of any other
person, partnership, association, corporation, or other entity, solicit or in any manner attempt to
influence or induce any employee of the Company or its subsidiaries or affiliates (known by the
Consultant to be such) to leave the employment of the company or its subsidiaries or affiliates,
nor shall he use or disclose to any person, partnership association, corporation or other entity
any information obtained while an employee of the Company concerning the names and addresses of the
Company’s employees.
9. Nondisclosure of Trade Secrets. During the term of this Agreement, Consultant will
have access to and become familiar with various trade secrets and proprietary and confidential
information of the Company, its subsidiaries and affiliates, including, but not limited to,
processes, computer programs, compilations of information, records, sale procedures, customer
requirements, pricing techniques, customer lists, methods of doing business and other confidential
information (collectively, referred to as “Trade Secrets”) which are owned by the Company, its
subsidiaries and/or affiliates and regularly used in the operation of its business, and as to which
the Company, its subsidiaries and/or affiliates take precautions to prevent dissemination to
persons other than certain directors, officers and employees. Consultant acknowledges and agrees
that the Trade Secrets (1) are secret and not known in the industry; (2) give the Company or its
subsidiaries or affiliates an advantage over competitors who do not know or use the Trade Secrets;
(3) are of such value and nature as to make it reasonable and necessary to protect and preserve the
confidentiality and secrecy of the Trade Secrets; and (4) are valuable, special and unique assets
of the Company or its subsidiaries or affiliates, the disclosure of which could cause substantial
injury and loss of profits and goodwill to the Company or its subsidiaries or affiliates.
Consultant may not use in any way or disclose any of the Trade
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Secrets, directly or indirectly, either during the term of this Agreement or at any time
thereafter, except as required in the course of his employment under this Agreement, if required in
connection with a judicial or administrative proceeding, or if the information becomes public
knowledge other than as a result of an unauthorized disclosure by the Consultant. All files,
records, documents, information, data and similar items relating to the business of the Company,
whether prepared by Consultant or otherwise coming into his possession, will remain the exclusive
property of the Company and may not be removed from the premises of the Company under any
circumstances without the prior written consent of the Board (except in the ordinary course of
business during Consultant’s period of active employment under this Agreement), and in any event
must be promptly delivered to the Company upon termination of Consultant’s employment with the
Company. Consultant agrees that upon his receipt of any subpoena, process or other request to
produce or divulge, directly or indirectly, any Trade Secrets to any entity, agency, tribunal or
person, Consultant shall timely notify and promptly hand deliver a copy of the subpoena, process or
other request to the Board. For this purpose, Consultant irrevocably nominates and appoints the
Company (including any attorney retained by the Company), as his true and lawful attorney-in-fact,
to act in Consultant’s name, place and stead to perform any act that Consultant might perform to
defend and protect against any disclosure of any Trade Secrets.
10. Severability. The parties hereto intend all provisions of Sections 7, 8 and 9
hereof to be enforced to the fullest extent permitted by law. Accordingly, should a court of
competent jurisdiction determine that the scope of any provision of Sections 7, 8 or 9 hereof is
too broad to be enforced as written, the parties intend that the court reform the provision to such
narrower scope as it determines to be reasonable and enforceable. In addition, however, Consultant
agrees that the nonsolicitation and nondisclosure agreements set forth above each constitute
separate agreements independently supported by good and adequate consideration shall be severable
from the other provisions of, and shall survive, this Agreement. The existence of any claim or
cause of action of Consultant against the Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of the covenants of
Consultant contained in the nonsolicitation and nondisclosure agreements. If any provision of this
Agreement is held to be illegal, invalid or unenforceable under present or future laws effective
during the term hereof, such provision shall be fully severable and this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision never constituted a
part of this Agreement; and the remaining provisions of this Agreement shall remain in full force
and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its
severance herefrom. Furthermore, in lieu of such illegal, invalid or unenforceable provision,
there shall be added as part of this Agreement, a provision as similar in its terms to such
illegal, invalid or enforceable provision as may be possible and be legal, valid and enforceable.
11. Ownership of Work Product. All work product, property, data, documentation,
information or materials conceived, discovered, developed or created by Consultant pursuant to this
Agreement (collectively, the “Work Product”) shall be owned exclusively by Company. To the
greatest extent possible, any “Work Product shall be deemed to be a “work made for hire” (as
defined in the United States Copyright Act, 17 U.S.C.A. §101 et seq., as amended)
and owned
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exclusively by Company. Consultant hereby unconditionally and irrevocably transfers and
assigns to Company all right, title and interest in or to any Work Product.
12. Notices.
(a) All notices provided for or required by this Agreement shall be in writing and shall be
delivered personally to the other party, or mailed by certified or registered mail (return receipt
requested), or delivered by a recognized overnight courier service, as follows:
| If to Company: | Attn: General Counsel | |||
| AGCO Corporation | ||||
| 0000 Xxxxx Xxxxx Xxxxxxx | ||||
| Xxxxxx, XX 00000 | ||||
| U.S.A. | ||||
| If to Consultant: | ||||
| Xxxxxx X. Xxxx | ||||
| 0000 Xxx Xxxxxxxxx Xxxx | ||||
| Xxxxxxxxxx, XX 00000 | ||||
(b) Notices delivered pursuant to Section 12(a) hereof shall be deemed given: at the time
delivered, if personally delivered, three (3) business days after being deposited in the mail, if
mailed; and one (1) business day after timely delivery to the courier, if by overnight courier
service.
(c) Either party hereto may change the address to which notice is to be sent by written notice
to the other party in accordance with the provisions of this Section 12.
13. Miscellaneous.
(a) This Agreement, including all Exhibits hereto (which are incorporated herein by this
reference), contains the entire agreement and understanding concerning the subject matter hereof
between the parties hereto. No waiver, termination or discharge of this Agreement, or any of the
terms or provisions hereof, shall be binding upon either party hereto unless confirmed in writing.
This Agreement may not be modified or amended, except by a writing executed by both parties hereto.
No waiver by either party hereto of any term or provision of this Agreement or of any default
hereunder shall affect such party’s rights thereafter to enforce such term or provision or to
exercise any right or remedy in the event of any other default, whether or not similar.
(b) The parties acknowledge and agree that this Agreement and the obligations and undertakings
of the parties under this Agreement will be performable in Duluth, Georgia. This Agreement shall
be governed by and construed in accordance with the laws of the State of Delaware. If any action
is brought to enforce or interpret this Agreement, venue for the action will lie in Gwinnett
County, Georgia.
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(c) Consultant may not assign this Agreement, in whole or in part, without the prior written
consent of Company, and any attempted assignment not in accordance herewith shall be null and void
and of no force or effect.
(d) This Agreement shall be binding on and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
(e) The headings contained herein are for the convenience of the parties only and shall not be
interpreted to limit or affect in any way the meaning of the language contained in this Agreement.
(f) This Agreement may be executed in one or more counterparts, each of which shall be deemed
to be an original, but all of which together shall constitute the same Agreement. Any signature
page of any such counterpart, or any electronic facsimile thereof, may be attached or appended to
any other counterpart to complete a fully executed counterpart of this Agreement, and any telecopy
or other facsimile transmission of any signature shall be deemed an original and shall bind such
party.
(g) If any provision of this Agreement shall be held void, voidable, invalid or inoperative,
no other provision of this Agreement shall be affected as a result thereof, and accordingly, the
remaining provisions of this Agreement shall remain in full force and effect as though such void,
voidable, invalid or inoperative provision had not been contained herein.
(h) This Agreement shall not be construed more strongly against either party hereto regardless
of which party is responsible for its preparation.
(i) Upon the reasonable request of the other party, each party hereto agrees to take any and
all actions, including, without limitation, the execution of certificates, documents or
instruments, necessary or appropriate to give effect to the terms and conditions set forth in this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized representatives to
execute this Agreement as of the day and year first above written.
| “Company” | ||||
| AGCO CORPORATION | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| “Consultant” | ||||
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