RETIREMENT AGREEMENT
Exhibit 10.iii.p
This Retirement Agreement (“Agreement”) is made and entered into as of March 30, 2007, between The Mosaic Company (the “Company”), a Delaware corporation having its principal place of business in the State of Minnesota, and Xxxxx X. Xxxxxxxx (“Xxxxxxxx”), an individual resident of the State of Minnesota.
RECITALS
WHEREAS, Xxxxxxxx has served as an Executive Vice President of the Company since its inception in 2004;
WHEREAS, the Company and Xxxxxxxx have agreed that Xxxxxxxx will retire from all positions with the Company effective as of March 31, 2007 (the “Retirement Date”);
WHEREAS, Xxxxxxxx and the Company entered into a Senior Management Severance Agreement, dated as of August 1, 2005 (the “Severance Agreement”), pursuant to which Xxxxxxxx would be entitled to receive certain benefits upon the termination of employment under certain circumstances; and
WHEREAS, the Company and Xxxxxxxx desire to set forth all matters regarding Xxxxxxxx’x retirement and separation of employment from the Company, and to completely and finally resolve all rights and claims between them.
NOW THEREFORE, in consideration of the foregoing premises, the covenants set forth below, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Xxxxxxxx and the Company agree as follows:
AGREEMENT
1. Retirement as Executive Vice President. Effective as of the Retirement Date, Xxxxxxxx hereby retires as an Executive Vice President of the Company, from all other officer positions he currently holds with the Company and its subsidiaries and controlled affiliates and from all director positions he holds with the Company’s subsidiaries and controlled affiliates, and the Company hereby accepts Xxxxxxxx’x retirement. Effective upon the Retirement Date, the Severance Agreement shall terminate and be of no further force or effect. Up to and including the Retirement Date, Xxxxxxxx shall continue to receive his base salary and all benefits to which he is currently entitled as an Executive Vice President of the Company. Xxxxxxxx understands that all Company employee benefits, plans, programs and fringe benefits cease as of the Retirement Date unless otherwise noted in this Agreement.
2. Compensation at Retirement Date. In consideration for his undertakings under this Agreement, and in lieu of any payments to which he might otherwise be entitled under the Severance Agreement, the Company shall make the following payments to, and distributions for the benefit of, Xxxxxxxx:
(a) Xxxxxxxx shall receive a lump sum payment of $875,000, subject to any required withholdings, deductions, and tax reporting requirements, on October 5, 2007 (the “Payment Date”).
(b) Xxxxxxxx shall receive a lump sum payment of $375,000, in lieu of receiving any other payment with respect to the Company’s Management Incentive Plan for fiscal 2007, subject to any required withholdings, deductions, and tax reporting requirements, payable on the Payment Date.
(c) Xxxxxxxx shall receive a lump sum payment of $281,250, in lieu of receiving any other payment with respect to the Company’s Synergy Incentive Plan for fiscal 2007, subject to any required withholdings, deductions, and tax reporting requirements, payable on the Payment Date.
(d) Xxxxxxxx may elect continuation coverage under Company-provided health and dental plans, to the extent required under federal law (referred to as “COBRA”) and state law. If Xxxxxxxx elects continuation coverage under a Company-provided health or dental plan, the Company shall pay Xxxxxxxx in one (1) lump sum payment an amount equal to the full COBRA monthly premium for each such plan multiplied by twelve (12), subject to any required withholdings, deductions, and tax reporting requirements. This lump sum payment shall be made on the Payment Date. Xxxxxxxx may continue coverage and pay the full COBRA premium for the COBRA period permitted by law. Xxxxxxxx must timely elect coverage and satisfy all enrollment and payment procedures established by the Company as a prerequisite to any continuation of COBRA coverage and any payment under this Section 2(d).
(e) The Company will pay Xxxxxxxx any unused earned vacation, subject to any required withholdings, deductions, and tax reporting requirements, consistent with the Company’s policies as of the Retirement Date.
(f) Receipt of all of the payments described above in this Section 2 is contingent upon Xxxxxxxx first signing, and not rescinding or revoking, a General Release of All Claims in favor of the Company, in the form attached hereto as Exhibit A, and also continuing to abide by all of Xxxxxxxx’x continuing obligations to the Company, particularly, but not exclusively, the non-disclosure, non-competition, and non-solicitation covenants contained in Section 4 of this Agreement.
3. Long-Term Incentives. The Compensation Committee of the Company’s Board of Directors (the “Committee”) has previously awarded to Xxxxxxxx non-qualified stock options to acquire 281,222 shares of the Company’s common stock (having an exercise price equal to the market price per share on the date of grant) (collectively, the “Options”), and 80,044 restricted stock units evidencing the right to receive one share per unit of the Company’s common stock (collectively, the “RSUs”) under the Company’s Long-Term Incentive Program (“LTIP”), in each case, subject to the standard terms and conditions of The Mosaic Company 2004 Omnibus Stock and Incentive Plan (the “Omnibus Stock Plan”) and applicable award agreements for each such grant or award.
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(a) Options. The Committee shall take such actions as are necessary to accelerate the vesting in full, effective as of the Retirement Date, of all Options granted to Xxxxxxxx that are outstanding and unvested on the Retirement Date. Xxxxxxxx agrees that, effective on the Retirement Date, all outstanding option award agreements shall be deemed amended hereby to provide that, with respect to all of the Options not exercised by such date, Xxxxxxxx shall be permitted to exercise them up to and including March 31, 2008; any Options not exercised by March 31, 2008 shall automatically be forfeited by Xxxxxxxx and may not be exercised thereafter.
(b) RSUs. The Committee shall take such actions as are necessary to accelerate the vesting in full, effective as of the Retirement Date, of all RSUs awarded to Xxxxxxxx that are outstanding and unvested on the Retirement Date. Xxxxxxxx understands and agrees that required tax withholding will be deducted from his outstanding RSUs in accordance with the terms of the Omnibus Stock Plan and the Company’s policies.
4. Non-Disclosure, Non-Solicitation, and Non-Competition Covenants. In consideration of receipt of the payments described in Section 2 of this Agreement at or after the Retirement Date, Xxxxxxxx agrees, as follows:
(a) Non-Disclosure.
(i) Xxxxxxxx acknowledges that he has received and will, through the Retirement Date, continue to receive access to confidential and proprietary business information or trade secrets (“Confidential Information”) about the Company, that this information was obtained by the Company at great expense and is reasonably protected by the Company from unauthorized disclosure, and that Xxxxxxxx’x possession of this special knowledge is due solely to his employment with the Company. In recognition of the foregoing, Xxxxxxxx will not, at any time during his remaining employment or following the Retirement Date, for any reason, disclose, use or otherwise make available to any third party any Confidential Information relating to the Company’s business, including its products, production methods, and development; manufacturing and business methods and techniques; trade secrets, data, specifications, developments, inventions, engineering and research activity; marketing and sales strategies, information and techniques; long and short term plans; current and prospective dealer, customer, vendor, supplier and distributor lists, contacts and information; financial, personnel and information system information; and any other information concerning the business of the Company which is not disclosed to the general public or known in the industry, except for disclosure necessary in the course of Xxxxxxxx’x duties prior to the Retirement Date.
(ii) At or promptly following the Retirement Date, Xxxxxxxx shall deliver to a designated Company representative all records, documents, hardware, software, and all other Company property and all copies thereof in his possession. Xxxxxxxx acknowledges and agrees that all such materials are the sole property of the Company and that he will certify in writing to the Company at its request, at or promptly after the Retirement Date, that he has complied with this obligation.
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(b) Non-Solicitation.
(i) Xxxxxxxx specifically acknowledges that the Confidential Information described in this Section 4 includes confidential data pertaining to current and prospective customers and dealers of the Company, that such data is a valuable and unique asset of the Company’s business and that the success or failure of the Company’s specialized business is dependent in large part upon the Company’s ability to establish and maintain close and continuing personal contacts and working relationships with such customers and dealers and to develop proposals which are specifically designed to meet the requirements of such customers and dealers. Therefore, during the period prior to the Retirement Date and for the twelve (12) month period following the Retirement Date, Xxxxxxxx agrees that he will not, except on behalf of the Company or with the Company’s express written consent, solicit, either directly or indirectly, on his own behalf or on behalf of any other person or entity, any such customers and dealers with whom he had contact during the twenty-four (24) months preceding the Retirement Date.
(ii) Xxxxxxxx specifically acknowledges that the Confidential Information described in this Section 4 also includes confidential data pertaining to current and prospective employees and agents of the Company, and Xxxxxxxx further agrees that, during the period prior to the Retirement Date and for the twelve (12) month period following the Retirement Date, Xxxxxxxx will not, directly or indirectly, solicit, on his own behalf or on behalf of any other person or entity, the services of any person who is an employee or agent of the Company or solicit any of the Company’s employees or agents to terminate their employment or agency with the Company, except with the Company’s express written consent.
(iii) Xxxxxxxx specifically acknowledges that the Confidential Information described in this Section 4 also includes confidential data pertaining to current and prospective vendors and suppliers of the Company, and Xxxxxxxx agrees that, during the period prior to the Retirement Date and for the twelve (12) month period following the Retirement Date, he will not, directly or indirectly, solicit, on his own behalf or on behalf of any other person or entity, any Company vendor or supplier for the purpose of either providing products or services to a business competitive with that of the Company, as described in Section 4(c)(i), or terminate or materially change such vendor’s or supplier’s relationship or agency with the Company.
(iv) Xxxxxxxx further agrees that, during the period prior to the Retirement Date and for the twelve (12) month period following the Retirement Date, Xxxxxxxx will do nothing to interfere with any of the Company’s business relationships.
(c) Non-Competition.
(i) Xxxxxxxx covenants and agrees that, during the period prior to the Retirement Date and for the twelve (12) month period following the Retirement Date, he will not, in any geographic market in which he worked on behalf of the Company during the twenty-four (24) months preceding the Retirement Date, engage in or carry on, directly or indirectly, as an owner, employee, agent, associate, consultant or in any other
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capacity, a business competitive with that conducted by the Company. A “business competitive with that conducted by the Company” shall mean any business or activity involved in the design, development, manufacture, sale, marketing, production, distribution, or servicing of phosphate, potash, nitrogen, fertilizer, or crop nutrition products, any industrial products made with phosphate, potash or nitrogen or any other significant business in which the Company is engaged in or preparing to engage in as of the Retirement Date. To “engage in or carry on” shall mean to have ownership in such business (excluding ownership of up to 1% of the outstanding shares of a publicly-traded company) or to consult, work in, direct or have responsibility for any area of such business, including but not limited to, operations, sales, marketing, manufacturing, procurement or sourcing, purchasing, customer service, distribution, product planning, research, design or development.
(ii) During the period prior to the Retirement Date and for the twelve (12) month period following the Retirement Date, Xxxxxxxx certifies and agrees that he will notify the Chief Executive Officer of the Company (the “CEO”) of his employment or other affiliation with any potentially competitive business or entity prior to the commencement of such employment or affiliation. Xxxxxxxx may make a written request to the CEO for modification of this non-competition covenant; the CEO will determine, in his sole discretion, if the requested modification will be harmful to the Company’s business interests; and the CEO will notify Xxxxxxxx in writing of the terms of any permitted modification or of the rejection of the requested modification.
5. Company Remedies. Xxxxxxxx acknowledges and agrees that the restrictions and agreements contained in this Agreement are reasonable and necessary to protect the legitimate interests of the Company, that the services rendered by Xxxxxxxx as an employee of the Company are of a special, unique and extraordinary character, that it would be difficult to replace such services and that any violation of Section 4 of this Agreement would be highly injurious to the Company, that Xxxxxxxx’x violation of any provision of Section 4 of this Agreement would cause the Company irreparable harm that would not be adequately compensated by monetary damages and that the remedy at law for any breach of any of the provisions of Section 4 of this Agreement will be inadequate. Xxxxxxxx further acknowledges that he has requested, or has had the opportunity to request, that legal counsel review this Agreement and having exhausted such right, agrees to the terms herein without reservation. Accordingly, Xxxxxxxx specifically agrees that the Company shall be entitled, in addition to any remedy at law or in equity, to preliminary and permanent injunctive relief and specific performance for any actual or threatened violation of this Agreement and to enforce the provisions of Section 4 of this Agreement, and that such relief may be granted without the necessity of proving actual damages and without necessity of posting any bond. This provision with respect to injunctive relief shall not, however, diminish the right to claim and recover damages, or to seek and obtain any other relief available to it at law or in equity, in addition to injunctive relief.
6. Governing Law. This Agreement shall be governed by and construed under Minnesota law, without regard to its conflict of laws principles. In the event that any provision of this Agreement is held unenforceable, such provision shall be severed and shall not affect the validity or enforceability of the remaining provisions. In the event that any provision is held to be overbroad, such provision shall be deemed amended to narrow its application to the extent necessary to render the provision enforceable according to applicable law.
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7. Application of Section 409A. Notwithstanding anything in this Agreement to the contrary, the provisions of this Agreement shall be interpreted and applied consistent with Internal Revenue Code Section 409A and all U.S. Treasury regulations adopted in furtherance thereof. Each party shall be responsible for its own taxes and penalties. As necessary or appropriate, each party agrees to cooperate with the other to amend this Agreement to comply with Section 409A and the guidance under Section 409A.
8. Jurisdiction and Venue. The parties agree that any litigation in any way relating to this Agreement shall be venued in either federal or state court in Minnesota, and Xxxxxxxx hereby consents to the personal jurisdiction of these courts and waives any objection that such venue is inconvenient or improper.
9. Entire Agreement. This Agreement, including Exhibit A attached hereto, contains the entire understanding and agreement of the Xxxxxxxx and the Company with respect to these matters and supersedes any previous agreements or understandings, whether written or oral, between them on the same subjects.
10. Survival. The covenants contained in Section 4 of this Agreement shall remain in full force and effect after the termination of Xxxxxxxx’x employment with the Company. Xxxxxxxx and the Company acknowledge and understand that, unless expressly stated above, Xxxxxxxx’x obligations hereunder shall not be affected by the reasons for, circumstances of, or identity of the party who initiates the termination of Xxxxxxxx’x employment with the Company.
11. No Waiver. The Company’s waiver or failure to enforce the terms of this Agreement in one instance shall not constitute a waiver of its rights under the Agreement with respect to other violations.
12. Assignment. This Agreement shall be binding upon (and, for the avoidance of doubt, in the case of Xxxxxxxx’x death or disability) and inure to the benefit of the legal representatives of Xxxxxxxx. This Agreement may be transferred, in whole or in part, by the Company to its successors and assigns, and the rights and obligations of this Agreement shall be binding upon and inure to the benefit of any successors or assigns of the Company and Xxxxxxxx will remain bound to fulfill his obligations hereunder. Xxxxxxxx may not, however, transfer or assign his rights or obligations under this Agreement.
13. Read and Understood. Xxxxxxxx has read this Agreement carefully and understands each of its terms and conditions. Xxxxxxxx has sought independent legal counsel of his choice to the extent he deemed such advice necessary in connection with the review and execution of this Agreement.
14. Dispute Resolution. Except or otherwise stated in Section 5 of this Agreement, the parties agree that any disputes arising under this Agreement will be resolved under the Company’s Employment Dispute Resolution Program.
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IN WITNESS WHEREOF, the parties have executed this Retirement Agreement as of the date first set forth above.
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| Xxxxx X. Xxxxxxxx | ||
| THE MOSAIC COMPANY | ||
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| By: |
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| Its: |
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EXHIBIT A
GENERAL RELEASE OF ALL CLAIMS
This General Release of All Claims (“Release”) is entered into as of March , 2007, by and between The Mosaic Company, a Delaware corporation (“Mosaic”), and Xxxxx X. Xxxxxxxx (“Xxxxxxxx”), an individual residing in the State of Minnesota.
WHEREAS, this Release is executed pursuant to Section 2(f) of the Retirement Agreement dated as of March , 2007, by and between Mosaic and Xxxxxxxx (the “Retirement Agreement”).
1. Xxxxxxxx’x Release. In consideration of the promises, covenants and other valuable consideration provided by Mosaic in the Retirement Agreement and in this Release, Xxxxxxxx hereby unconditionally releases and discharges Mosaic and its affiliates, and their current and former employees, officers, agents, directors, and shareholders (collectively referred to as “Released Parties”) from any and all claims, causes of action, losses, obligations, liabilities, damages, judgments, costs, expenses (including attorneys’ fees) of any nature whatsoever, known or unknown, contingent or non-contingent (collectively, “Claims”), that Xxxxxxxx had or has as of the date of this Release arising (i) out of Xxxxxxxx’x hiring, employment, or retirement with Mosaic, and (ii) under any federal or state law, including, but not limited to, the Age Discrimination in Employment Act of 1967, 42 U.S.C. §§ 1981-1988, Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Employee Retirement Income Security Act of 1974, the Consolidated Omnibus Budget Reconciliation Act of 1986, the National Labor Relations Act, the Occupational Safety and Health Act, the Fair Labor Standards Act, the Family and Medical Leave Act of 1993, the Workers Adjustment and Retraining Notification Act, the Americans with Disabilities Act of 1990, the Minnesota Labor Code, the Minnesota Human Rights Act, and any provision of the state or federal Constitutions or Minnesota common law.
This Release includes but is not limited to any claims Xxxxxxxx may have for salary, wages, severance pay, vacation pay, sick pay, bonuses, benefits, pension, stock options, restricted stock units, overtime, and any other compensation or benefit of any nature.
This Release also includes but is not limited to any and all common law claims including, but not limited to, claims arising under Mosaic Employment Dispute Resolution Program, claims for wrongful discharge, breach of express or implied contract, implied covenant of good faith and fair dealing, intentional or negligent infliction of emotional distress, violation of public policy, defamation, conspiracy, invasion of privacy, and/or tortious interference with current or prospective business relationships. Furthermore, Xxxxxxxx relinquishes any right to re-employment with Mosaic or the Released Parties. Xxxxxxxx also relinquishes any right to further payment or benefits under any employment agreement, benefit plan or severance arrangement maintained or previously or subsequently maintained by Mosaic or any of the Released Parties or any of its respective predecessors or successors, except that he does not release any rights he has under the Retirement Agreement. Although this Release waives any fiduciary claims Xxxxxxxx may have, nothing in this Release shall be construed as impairing any of Xxxxxxxx’x vested rights, if any, under any Company sponsored 401(k), deferred
compensation plan or other employee benefit plan, which rights will be governed by the terms of the applicable plan(s). Xxxxxxxx also does not release his right to enforce the terms of this Release or the Retirement Agreement or his right to indemnification and advancement of expenses under any agreement he has entered into with Mosaic, under Mosaic’s charter or by-laws or under any insurance policy maintained by Mosaic that is applicable to its current or former directors and officers, or under any applicable law relating to officers, directors or employees.
This Release is intended to include all claims which Xxxxxxxx does not know exist in his favor at the time of execution hereof, and contemplates the extinguishment of any such claim or claims. Xxxxxxxx is not releasing any rights or claims that may arise after the date that this Release is executed. This Release does not prohibit Xxxxxxxx from filing an administrative charge or participating in an administrative investigation, hearing or proceeding. Xxxxxxxx understands that, by releasing all of his legal claims against the Released Parties, he is releasing all of his rights to bring any claims against them based on any actions, decisions, or events occurring through the date of his signing of this Release, including the terms and conditions of his employment and the termination of his employment. Further, he understands that he is releasing, and does hereby release, any claims for damages, by charge or otherwise, whether brought by him or on his behalf by any other party, governmental or otherwise, and agrees not to institute any claims for damages via administrative or legal proceedings against the Released Parties. Xxxxxxxx also waives and releases any and all rights to money damages or other legal relief awarded by any governmental agency related to any charge or other claim.
2. No Claims Against Released Parties. Xxxxxxxx warrants and represents that, to the full extent permitted by law, he will not bring against Mosaic or any of the Released Parties any claim or lawsuit seeking monetary damages that are related to any matters released by Xxxxxxxx under Section 1 of this Release. Xxxxxxxx agrees that if he brings or asserts any such action or lawsuit, he shall pay all costs and expenses, including reasonable attorneys’ fees, incurred by Mosaic or the Released Parties in dismissing or defending the action or lawsuit. Nothing in this provision, however, shall be interpreted to prevent Xxxxxxxx from bringing a claim or lawsuit to enforce the terms of this Release or the Retirement Agreement. This Section 2 shall not apply to any claims Xxxxxxxx may have asserting rights under the Older Worker Benefit Protection Act.
3. Rescission. Xxxxxxxx has been informed of his right to revoke this Release insofar as it extends to potential claims under the Age Discrimination in Employment Act by informing Mosaic of his intent to revoke this Agreement within seven (7) calendar days following the Execution Date. Xxxxxxxx has likewise been informed of his right to rescind this Release insofar as it relates to potential claims under the Minnesota Human Rights Act by written notice to Mosaic within fifteen (15) calendar days following Xxxxxxxx’x execution of this Release. Xxxxxxxx has further been informed and understands that any such rescission must be in writing and hand-delivered to Mosaic or, if sent by mail, postmarked within the applicable time period, sent by certified mail, return receipt requested, and addressed as follows:
Xxxxxxx X. Xxxx
Senior Vice President and General Counsel
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The Mosaic Company
Xxxxx Xxxxxxxxx Xxxxxx, Xxxxx X000
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Xxxxxxxx and Mosaic agree that if Xxxxxxxx exercises this right of rescission, this Release shall be null and void and Xxxxxxxx shall return to Mosaic any consideration paid or benefit provided pursuant to the Retirement Agreement or this Release contemporaneously with the delivery of rescission notice. Xxxxxxxx specifically understands and agrees that any attempt by him to revoke this Release after the specified period for rescission has expired is, or will be, ineffective.
4. Breach of this Release. If a court of competent jurisdiction determines that either party has breached or failed to perform any part of this Release, the parties agree that the non-breaching party shall be entitled to injunctive relief to enforce this Release and that the breaching party shall be responsible for paying the non-breaching party’s costs and attorneys’ fees incurred in enforcing this Release.
5. Severability. If any provision of this Release is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect.
6. Ambiguities in this Release. The parties acknowledge that this Release has been drafted, prepared, negotiated and agreed to jointly, with advice of each party’s respective counsel, and to the extent that any ambiguity should appear, now or at any time in the future, latent or apparent, such ambiguity shall not be resolved or construed against either party.
7. Opportunity to Review. Xxxxxxxx acknowledges and agrees that he first received the original of this Release on or before March 20, 2007. Xxxxxxxx also understands and agrees that he has been given at least 21 calendar days from the date he first received this Release to obtain the advice and counsel of the legal representative of his choice and to decide whether to sign it. Xxxxxxxx acknowledges that he has been advised and has sought the advice of his own counsel. No payments or benefits pursuant to the Retirement Agreement shall become due until Xxxxxxxx has executed this Release. Xxxxxxxx represents and agrees that he has had the option to thoroughly discuss all aspects and effects of this Release with his attorney, that he has had a reasonable time to review this Release, that he fully understands all the provisions of this Release and that he is voluntarily entering into this Release.
8. Notices. All notices and other communications hereunder will be in writing. Any notice or other communication hereunder shall be deemed duly given if it is sent by registered or certified mail, return receipt requested, postage prepaid, and addressed to the intended recipient as set forth:
If to Xxxxxxxx:
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
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If to Mosaic:
The Mosaic Company
Xxxxx Xxxxxxxxx Xxxxxx, Xxxxx X000
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Senior Vice President and General Counsel
Facsimile: (000) 000-0000
Any party may send any notice or other communication hereunder to the intended recipient at the address set forth using any other means (including personal delivery, expedited courier, messenger services, facsimile, ordinary mail or electronic mail), but no such notice or other communication shall be deemed to have been duly given unless and until it is actually received by the intended recipient. Any party may change the address to which notices and other communications hereunder are to be delivered by giving the other party notice in the manner set forth herein.
9. Counterpart Agreements. This Release may be executed in multiple counterparts, whether or not all signatories appear on these counterparts, and each counterpart shall be deemed an original for all purposes.
10. Governing Law. This Agreement shall be governed by and construed under the internal laws of the State of Minnesota, without regard to its conflict of laws principles.
11. Jurisdiction and Venue. This Agreement shall be deemed performable by all parties in, and venue shall exclusively be in the state or federal courts located in, Hennepin County, Minnesota. Xxxxxxxx hereby consents to the personal jurisdiction of these courts and waives any objection that such venue is objectionable or improper.
12. No Assignment of Claims. Xxxxxxxx represents and warrants that he has not transferred or assigned to any person or entity any Claim involving Mosaic or the Released Parties or any portion thereof or interest therein. Mosaic represents and warrants on its own behalf and on behalf of its corporate affiliates that they have not transferred or assigned to any person or entity any Claim involving Xxxxxxxx or any portion thereof or interest therein.
13. Authority. The undersigned officer of Mosaic represents and warrants that he has authority to enter into this Release on behalf of Mosaic and its affiliates.
14. Binding Effect of Release. This Release shall be binding upon Xxxxxxxx, Mosaic and their heirs, administrators, representatives, executors, successors and permitted assigns.
[Signature Page to Follow]
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BY SIGNING THIS RELEASE, XXXXXXXX ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS RELEASE, THAT HE UNDERSTANDS ALL OF ITS TERMS, AND THAT HE IS ENTERING INTO IT VOLUNTARILY. HE FURTHER ACKNOWLEDGES THAT HE IS AWARE OF HIS RIGHTS TO REVIEW AND CONSIDER THIS RELEASE FOR 21 DAYS AND TO CONSULT WITH AN ATTORNEY ABOUT IT, AND STATES THAT BEFORE SIGNING THIS RELEASE, HE HAS EXERCISED THESE RIGHTS TO THE FULL EXTENT THAT HE DESIRED. HE ALSO ACKNOWLEDGES THAT HE WILL BE RECEIVING BENEFITS THAT HE WOULD NOT OTHERWISE BE ENTITLED TO RECEIVE EXCEPT BY VIRTUE OF HIS ENTERING INTO THIS RELEASE.
The parties have duly executed this Release as of the date first written above.
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| Xxxxx X. Xxxxxxxx | ||
| THE MOSAIC COMPANY | ||
| By: |
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