SECONDMENT AGREEMENT
Exhibit 10.21
WHEREAS,
Xxxxxxx X. Xxxxxx (the "Executive") serves as the Chief Executive Officer of
Farm Credit of Western New York, an Association in the Farm Credit System
("FCWNY");
WHEREAS,
with the consent of FCWNY, the Executive has agreed to serve as interim Chief
Executive Officer of The Federal Agricultural Mortgage Association ("Xxxxxx Mac"
and, collectively with FCWNY, the "Parties");
WHEREAS,
in connection with the Executive's engagement by Xxxxxx Mac, FCWNY has agreed to
second the Executive to Xxxxxx Mac; and
WHEREAS,
the Parties desire to enter into this Secondment Agreement to set forth the
terms and conditions under which the Executive will provide the Services (as
defined below) to Xxxxxx Mac during the Secondment Period (as defined
below);
NOW,
THEREFORE, in consideration of the premises and the mutual agreements of the
Parties contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereto
agree as follows:
Section
1. Definitions.
The following initially capitalized terms, as used in this Secondment Agreement,
have the following meanings:
(a) "Effective
Date" means October 1, 2008.
(b)
"Secondment Period" means that period commencing on the Effective Date and
ending upon the termination of this Secondment Agreement in accordance with
Section 6 hereof.
(c)
"Services" means all services commensurate with the duties of the Chief
Executive Officer of Xxxxxx Mac during the Secondment Period.
Section
2. Executive's Continued
Employment with FCWNY. During the Secondment Period, FCWNY shall
make the Executive available to Xxxxxx Mac for the purpose of performing the
Services for or on behalf of Xxxxxx Mac. Notwithstanding the
foregoing, the Executive will at all times during the Secondment Period continue
to be an employee of, and an employee only of, FCWNY. The Executive shall
be subject to the personnel policies and other terms and conditions of
employment administered by FCWNY with respect to its employees, generally, and
shall be entitled to receive from FCWNY all benefits, perquisites and privileges
available generally to FCWNY employees, whether or not seconded. The
Executive shall also be subject to Xxxxxx Mac's personnel and other policies to
the extent that they do not conflict with FCWNY's policies. During
the Secondment Period, the Executive shall report to, and receive substantive
direction regarding his duties from, Xxxxxx Mac's Board of
Directors.
Section 3. Salary and
Benefits. During the Secondment period, FCWNY, and not Xxxxxx Mac,
shall pay the Executive's salary and provide any insurance, pension and other
benefits to which he is entitled as an employee of FCWNY and under any written
or oral agreements or understandings with respect to his employment with FCWNY
(collectively, the "Executive Employment Arrangements").
Section
4. Reimbursement of
FCWNY.
(a) In
consideration for FCWNY making the Executive available to provide the Services
during the Secondment Period, Xxxxxx Mac shall pay to FCWNY, on a monthly basis
promptly following the end of each month, an amount equal to the sum of (a) the
Executive's base salary for such month (or portion of such month if the
Secondment Period is not in effect for the entire month), and (b) FCWNY's cost
of providing employee benefits to the Executive pursuant to the Executive
Employment Arrangements for such month (or portion of such month if the
Secondment Period is not in effect for the entire month). FCWNY
agrees not to increase the Executive's base salary or the cost of providing
employee benefits to the Executive above those in effect immediately before the
Effective Date except to the extent such increases are no greater than those
applicable to other officers of FCWNY.
(b) In
addition, to the extent that FCWNY provides any cash bonus (including, but not
limited to, pursuant to any qualified incentive compensation plan) to the
Executive for any period that includes the Secondment Period, Xxxxxx Mac shall
reimburse FCWNY for a pro rata share of such bonus, as determined by multiplying
the total cash bonus by a fraction, the numerator of which is the number of days
in the Secondment Period during the applicable bonus period and the denominator
of which is the total number of days during the applicable bonus
period. Such reimbursement shall be paid by Xxxxxx Mac to FCWNY
within ten (10) days after Xxxxxx Mac receives an invoice from FCWNY specifying
such amount. FCWNY agrees not to increase the Executive's target
bonus for any period above that in effect immediately before the Effective Date
except to the extent such increase is no greater than that applied to other
officers of FCWNY.
Section
5. Xxxxxx Mac Indemnification
of FCWNY. Xxxxxx Mac agrees to indemnify and hold FCWNY harmless
from and against any and all losses, damages, expenses, costs of defense and
claims incurred by FCWNY in connection with a third-party claim (collectively,
"Losses") that may arise in connection with, or in respect of, the Executive's
performance of the Services. In addition, Xxxxxx Mac agrees that FCWNY
shall have no liability for, and shall be fully exculpated with respect to, any
Losses that Xxxxxx Mac or any of its affiliates, or any of their respective
shareholders, directors, officers or employees or representatives may incur in
connection with, or in respect of, the Executive's performance of the
Services.
Section
6. Termination of Secondment
Agreement. This Secondment Agreement shall terminate upon the
earlier to occur of (a) the termination of the Executive's status as interim CEO
of Xxxxxx Mac for any reason, or (b) the Executive's termination as an employee
of FCWNY for any reason.
Section
7. Miscellaneous.
(a) Entire
Agreement. This Secondment Agreement sets forth the entire
agreement and understanding of the parties concerning the subject matter hereof
and supersedes all prior agreements, arrangements and understandings between
FCWNY and Xxxxxx Mac concerning such subject matter. No
representation, promise, inducement or statement of intention has been made by
or on behalf of either party hereto that is not set forth in this Secondment
Agreement or the documents referred to herein. This Secondment
Agreement may not be amended or modified except by a written instrument
specifically referring to this Secondment Agreement executed by the parties
hereto.
(b) Waiver. The
failure of either Party hereto at any time or from time to time to require
performance of any of the other party's obligations under this Agreement shall
in no manner affect the right to enforce any provision of this Agreement at a
subsequent time, and the waiver of any rights arising out of any breach shall
not be construed as a waiver of any rights arising out of any subsequent
breach.
(c) No Third Party
Beneficiary. The terms and provisions of this Secondment Agreement
are intended solely for the benefit of each Party hereto, and it is not the
intention of the Parties to confer third-party beneficiary rights upon any other
person.
(d) No Assignment.
Neither this Secondment Agreement nor any right, interest or obligation
hereunder may be assigned by any Party hereto without the prior written consent
of the other Party.
(e) Headings. The
headings used in this Secondment Agreement have been inserted for convenience of
reference only and do not define or limit the provisions hereof.
(f)
Severability.
In the event that any provision of this Secondment Agreement shall be determined
by a court of competent jurisdiction to be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
(g) Governing Law.
This Secondment Agreement shall be governed by and construed and enforced in
accordance with federal law and, to the extent federal law incorporates state
law, that law shall be the laws of the State of New York applicable to a
contract executed and performed in such state, without regard to its principles
of conflicts of laws.
IN
WITNESS WHEREOF, the undersigned have executed this Secondment Agreement as of
the Effective Date.
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FARM
CREDIT OF WESTERN NEW YORK
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XXXXXX
MAC
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By:
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/s/
C. Xxxxx Xxxxxxx
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By:
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/s/
Xxxxxx X. Xxxxxxx
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Name:
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C.
Xxxxx Xxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxx
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Title:
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President
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Title:
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Vice
Chairman and Acting Chairman of the
Board
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