EXHIBIT 10.81
SEVERANCE AGREEMENT
This Severance Agreement (the "Agreement) is entered into by and
between Xxxxxx X. Xxx Xxxxxx (the "Executive") and IMC Global Inc., a
Delaware corporation, as of this 19 day of March 1998 (the "Effective
Date").
WHEREAS, IMC Global Inc. has announced its intention and desire to sell
all of its ownership interest in IMC Agribusiness Inc., Xxxxxx'x Xx
Services, Inc. and IMC Nitrogen, Inc. (collectively, "AgriBusiness");
WHEREAS, IMC Global Inc. desires to retain the Executive in its employ
pending completion of the sale and to provide incentives to the
Executive to stay in its employ;
WHEREAS, it is IMC Global Inc. and the Executive's intent and
assumption that the purchaser of AgriBusiness will assume IMC Global
Inc.'s obligations hereunder and act fully in its stead as if it had
been the original contracting party;
NOW, THEREFORE, in consideration of the agreements and covenants
contained herein and in the Non-Competition Agreement entered into
contemporaneously with this Agreement by the parties hereto, the
sufficiency of which is acknowledged, the Executive and IMC Global Inc.
hereby agree as follows:
1. Definitions. Each term defined herein shall be given its defined
meaning wherever used in this Agreement unless the context requires
otherwise.
(a) "Affiliate" means any corporation which is a member of the same
controlled group of corporations (within the meaning of Section
414(b) of the Internal Revenue Code) as the Company or any
unincorporated trade or business which is under common control
with the Company (as determined under Section 414(c) of the
Internal Revenue Code).
(b) "Cause" means the Executive (i) grossly neglects his duties;
(ii) engages in misconduct; (iii) breaches a material provision
of this Agreement; (iv) fails to cooperate fully with the
Company in effecting the sale of AgriBusiness. "Gross neglect"
means the failure to perform the essential functions of the
Executive's job or the failure to carry out the Company's
reasonable directions with respect to material duties after the
Executive is notified by the Company that the Executive is
failing to perform these essential functions or failing to
carry out the reasonable directions of the Company.
"Misconduct" means embezzlement or misappropriation of
corporate funds, or other acts of fraud, dishonesty, or self-
dealing; willful refusal to perform, or substantial disregard
of material duties; any significant violation of any statutory
or common law duty of loyalty to the Company or indictment for
a felony.
(c) "Company" means IMC Global Inc. and its subsidiaries, as they
may exist from time to time.
(d) "Good Reason" for termination of employment by the Executive
shall mean any of the following:
1. the continued failure by the Company, after notice and a
reasonable opportunity to cure, to (i) maintain the
Executive's base salary at a rate equal to or higher than
the rate in effect on the Effective Date; provided,
however, that Good Reason shall not exist as the result of
any decrease in base salary if such decrease is incident to
a general reduction applied to executives at a similar
level as the Executive on a proportionate and
nondiscriminatory basis; (ii) provide for continued
participation on a comparable basis by the Executive in an
annual bonus plan, including any long-term incentive plan,
maintained by the Company in which executives at a similar
level as the Executive participate; (iii) provide for
participation in stock option and other equity incentive
plans or programs maintained by the Company from time to
time in which executives at a similar level as the
Executive participate; (iv) provide for participation in
all Company sponsored group or executive medical, dental,
life, disability, retirement, profit-sharing, thrift, non-
qualified, deferred compensation, and other plans
maintained by the Company to the same extent as executives
at a similar level as the Executive participate; (v)
provide vacation and perquisites substantially equivalent
to those provided by the Company to executives at a similar
level as the Executive; or
2. a significant adverse change, without the Executive's
written consent (which consent shall not be withheld
unreasonably) that continues after notice and 60 days to
cure, in working conditions or status, including but not
limited to a significant adverse change in the nature or
scope of the Executive's authority, powers, functions,
duties or responsibilities. A significant adverse change
does not include a change in the Company's status such
that it no longer has any equity securities registered
under Section 12(b) or 12(g) of the Securities Exchange
Act of 1934, as amended, or that it becomes a subsidiary
of another entity which directly results in changes in the
nature or scope of the Executive's authority, powers,
functions, duties or responsibilities shall not in and of
itself constitute Good Reason hereunder.
3. a change, without the Executive's consent, in the
Executive's primary employment location to a location that
is more than 50 miles from the primary location of the
Executive's employment as in effect immediately prior to
the Effective Date.
(e) "Successor Company" means an entity to which the Company
transfers its ownership interest in and operation of
AgriBusiness.
2. Term. This Agreement shall commence on the Effective Date and
shall terminate on the third anniversary of the Effective Date.
3. Severance Eligibility. If, during the Term of this Agreement, the
Executive's employment is terminated by the Company or Successor
Company or the Executive terminates his employment within 60 days
after the Executive has or should have knowledge that Good Reason
exists, the Executive shall be entitled to receive the Severance
Benefits described in paragraph 4 herein if he timely executes and
does not revoke a Waiver and Release of Claims substantially in
the form attached hereto as Exhibit A, unless his employment is
terminated during the Term of this Agreement due to any of the
following: (i) the Executive's death; (ii) the Executive's
inability to perform the essential functions of his position with
or without reasonable accommodation; (iii) the Executive is
terminated for Cause; or (iv) the Executive voluntarily resigns or
retires. Notwithstanding the foregoing, if, in connection with
the sale of AgriBusiness, the Executive's employment with the
Company or Successor Company is terminated and (i) the Executive
is offered alternative employment with the Company, an Affiliate
or Successor Company that is at a location that is no more than 50
miles from the Executive's primary employment location immediately
prior to termination and that is at a reasonably comparable base
salary and the position offered has, in the Company's reasonable
determination, reasonably comparable duties and responsibilities
to the position the Executive held with the Company or Successor
Company at termination or (ii) the Executive accepts an offer of
employment with the Company, an Affiliate or Successor Company,
such termination shall not render the Executive eligible for
Severance Benefits under this Agreement.
4. Severance Benefits. If the Executive is eligible for Severance
Benefits as provided in paragraph 3 above, the Executive shall
receive the following "Severance Benefits":
(a) An amount equal to $1,356,627, paid in thirty-six (36)
monthly installments;
(b) If the Executive timely and appropriately exercises his right
to continue his coverage under the Company's medical and
dental plans as provided under the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended ("COBRA"), then
the Company will pay the employer portion (the Executive will
pay the employee portion) of such premiums for the Executive
until the earlier of: (i) the expiration of the one year
period following the date of termination and (ii) the date on
which the Executive is no longer eligible to continue such
coverage under COBRA. Except as provided in this paragraph,
the Executive's continued participation and coverage under
the group health insurance plans shall be governed by COBRA.
(c) The Company shall continue the Executive's coverage under its
life insurance policy until the earlier of (i) the expiration
of the one year period following the date of termination and
(ii) the date on which the Executive becomes eligible to
participate in and receive similar benefits under a plan or
arrangement sponsored by another employer or under any
Company sponsored retirement plan. Participation shall be on
the same terms and conditions as are applicable to active
employees.
Severance Benefits shall be subject to all applicable federal,
state and local deductions and withholdings. At the option of the
Company, the present value of the Severance Benefits may be paid in
a lump sum at any point during the Severance Benefits period. The
Company's obligation to continue Severance Benefits shall cease
immediately if (i) the Company has or would have had grounds to
terminate the Executive's employment immediately for Cause; (ii)
the Executive violates the terms of the Non-Competition Agreement
entered into contemporaneously with this Agreement by the parties
hereto; or (iii) the Executive would otherwise not be entitled to
Severance Benefits under paragraph 3 above.
5. Confidential Information/ Proprietary Rights. Except as required by
law, during the term of this Agreement and thereafter for the
longest period of time permitted by applicable law, the Executive
shall preserve the confidentiality of and shall not use or divulge
or take action reasonably likely to result in the use or disclosure
of any trade secret, proprietary or confidential information of the
Company or an Affiliate; provided, however, that the Executive may
use or disclose such information if it is or becomes public or
available to the general public otherwise than through any act or
default of a party that has an obligation of confidentiality or
non-use with respect to such information. Such information
includes but is not limited to (i) the identity, purchase and
payment patterns of, and special relations with, customers; (ii)
the identity, net prices and credit terms of, and special relations
with, suppliers; (iii) inventory selection and management
techniques; (iv) product development and marketing plans; and (v)
finances except to the extent publicly disclosed.
6. Return of Company Property. The Executive agrees that upon
termination of his employment he will immediately surrender and
return to the Company all records and other documents obtained by
him, entrusted to him, or otherwise in his possession or control
during the course of his employment by the Company, together with
all copies thereof; provided, however, that subject to Company
review and authorization, the Executive may retain copies of such
documents as necessary for the Executive's personal records for
federal income tax purposes.
7. Dispute Resolution. Any dispute arising out of this Agreement
shall be determined by arbitration under the commercial arbitration
rules of the American Arbitration Association then in effect. The
arbitration proceeding shall be conducted in Chicago, Illinois or
such other location to which the parties may agree. If either
party pursues a claim and such claim results in an arbitrator's
decision or award, both parties agree to accept such decision or
award as final and binding, and judgment upon the decision or award
rendered by the arbitrator may be entered in any court having
jurisdiction thereof. The parties shall share the cost of the
arbitrator's services.
8. Entire Agreement, Amendment, Waiver. The parties agree and intend
that if the Executive is eligible for Severance Benefits hereunder,
then he shall not be eligible for severance benefits under any
other Company severance plan, policy or practice. If the
Executive's employment is terminated and he is not eligible for
Severance Benefits under this Agreement, the Executive's rights
under any employee benefit plans maintained by the Company shall be
determined in accordance with the provisions of such plans. This
Agreement constitutes the entire agreement between the Company and
the Executive with respect to the subject matter hereof. This
Agreement supersedes any prior agreements made between the parties
with respect to the subject matter hereof, including but not
limited to the Executive's Non-Competition Agreement entered into
by the parties on or about March 1, 1996. The Executive's
participation in and right to collect payments or benefits under
the Vigoro Corporation Severance Plan, dated November 13, 1995,
also shall terminate on the Effective Date of this Agreement. The
parties may not amend this Agreement except by written instrument
signed by both parties. No waiver by either party at any time of
any breach by the other of any provision of this Agreement shall be
deemed a waiver of similar or dissimilar provision at the same time
or any prior or subsequent time.
9. Assumption. This Agreement shall inure to benefit of, and be
binding upon, the successors and assignees of the Company and
AgriBusiness. The Company and AgriBusiness shall require any
successor or assignee, whether direct or indirect, by purchase,
merger, consolidation or otherwise, to all or substantially all of
the business or assets of the Company or AgriBusiness, expressly
and unconditionally to assume and agree to perform the Company's
obligations under this Agreement.
10. Notice. Any notice, request, or other communication required or
permitted to be given hereunder shall be made to the addresses
hereinafter set forth or to any other address designated by either
of the parties hereto by notice similarly given:
If to the Company: If to the Executive:
Senior Vice President, Human Resources Xxxxxx X. Xxx Xxxxxx
IMC Global Inc. 0000 Xxxxxx Xxxxxxxxx X.
0000 Xxxxxxx Xxxx Xxxxxxxxxxxx, XX 00000
Xxxxxxxxxx, XX 00000
All such notices, requests or other communications shall be
sufficient if made in writing either (i) by personal delivery to
the party entitled thereto, (ii) by facsimile with confirmation of
receipt, (iii) by registered or certified mail, return receipt
requested or (iv) by express courier service. The notice, request
or other communication shall be deemed effective upon personal
delivery, upon confirmation of receipt of facsimile transmission,
or upon actual or constructive receipt by the party entitled
thereto if by registered or certified mail or express courier
service; provided, however, that a notice, request or other
communication received after regular business hours shall be deemed
to be received on the next succeeding business day of the Company.
11. Employment At-Will. Nothing herein shall be construed as altering
the employment at-will status of the Executive. The Executive and
the Company can terminate the Executive's employment at any time
for any reason.
12. Severability. The provisions of this Agreement shall be regarded
as durable, and if any provision or portion thereof is declared
invalid or unenforceable by a court of competent jurisdiction, the
validity and enforceability of the remainder and applicability
thereof shall not be affected.
13. Applicable Law. This Agreement shall at all times be governed by
and construed, interpreted and enforced in accordance with the
internal laws ( as opposed to the conflict of laws provisions) of
the State of Illinois.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by its duly authorized officer and the Executive has signed this
Agreement as of the day and year first above written.
IMC GLOBAL INC. Xxxxxx X. Xxx Xxxxxx
By: /s/ B.R. Xxxxxxxxx /s/ Xxxxxx X. Xxx Xxxxxx
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Title: Senior Vice President
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EXHIBIT A
WAIVER AND RELEASE OF CLAIMS
In exchange for the Severance Benefits described in the attached
Severance Agreement (the "Agreement"), which I acknowledge I would not
otherwise be entitled to receive, I freely and voluntarily agree to
this WAIVER AND RELEASE OF CLAIMS ("WAIVER"):
1. My employment with IMC Global Inc. will terminate effective
-------------------------.
2. I acknowledge that the Severance Benefits described in the
attached Agreement are the sole payments to which I am entitled and
that I am not entitled to any additional severance payments.
3. I, and anyone claiming through me, hereby waive and release any
and all claims that I may have ever had or that I may now have against
IMC Global Inc., its parents, divisions, partnerships, affiliates,
subsidiaries, and other related entities and their successors and
assigns, and past, present and future officers, directors, employees,
agents and attorneys of each of them in their individual or official
capacity (hereinafter collectively referred to as "Released Parties").
Among the claims that I am waiving are claims relating to my employment
or termination of employment, including, but not limited to, claims of
discrimination in employment brought under the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act of 1964, the
Americans With Disabilities Act or other federal, state or local
employment discrimination, employment, wage laws, ordinances or
regulations or any common law or statutory claims of wrongful discharge
or breach of contract or any other common law or statutory claims;
whether for damages, lost wages or for any other relief or remedy.
4. I understand and agree that this WAIVER will be binding on me and
my heirs, administrators and assigns. I acknowledge that I have not
assigned any claims or filed or initiated any legal proceedings against
any of the Released Parties.
5. Except as may be required by law, I agree that I will not disclose
the existence or terms of this WAIVER to anyone except my accountant,
attorney or spouse, each of whom shall also be bound by this
confidentiality provision.
6. I understand that I have [twenty-one (21)] [forty-five (45)] days
to consider whether to sign this WAIVER and return it to B. Xxxxxxx
Xxxxxxxxx, Senior Vice President, Human Resources of IMC Global Inc.
IMC Global Inc. hereby advises me of my right to consult with an
attorney before signing the WAIVER and I acknowledge that I have had an
opportunity to consult with an attorney and have either held such
consultation or have determined not to consult with an attorney.
7. I understand that I may revoke my acceptance of this WAIVER by
delivering notice of my revocation to B. Xxxxxxx Xxxxxxxxx within seven
(7) days of the day I sign the WAIVER. If I do not revoke my
acceptance of this WAIVER within seven days of the day I sign it, it
will be legally binding and enforceable.
IMC GLOBAL INC. AGREED AND ACCEPTED:
By:
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Title:
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Print Name
Date: Date:
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