EMPLOYMENT AND SEVERANCE AGREEMENT AS AMENDED AND RESTATED
Exhibit 10.12
EMPLOYMENT AND SEVERANCE AGREEMENT
AS AMENDED AND RESTATED
AS AMENDED AND RESTATED
This Employment and Severance Agreement (the “Agreement”), originally effective as of the 21st
day of July, 2004, is amended and restated effective this 1st day of March, 2010, by and between
AGCO CORPORATION, a Delaware corporation (the “Company”), and Xxxxxx Xxxxxxxxxxx (the
“Executive”). This Agreement amends, restates and supersedes the Employment and Severance
Agreement between the Company and the Executive effective as of the 21st day of July,
2004 and any subsequent amendments or restatements thereto.
WITNESSETH:
In consideration of the mutual covenants and agreements hereinafter set forth, the Company and
the Executive do hereby agree as follows:
1. EMPLOYMENT.
(a) The Company hereby employs the Executive, and the Executive hereby agrees to serve the
Company, upon the terms and conditions set forth in this Agreement.
(b) The employment term commenced on July 21, 2004 and shall continue in effect for an initial
three (3) year term. This Agreement shall automatically be extended for additional one (1) year
terms unless: (i) the Company notifies the Executive at least sixty (60) days prior to the
expiration of the current term that this Agreement shall not be renewed, or (ii) the Agreement is
terminated pursuant to the provisions of Section 5 or any other provision of this Agreement.
2. POSITION AND DUTIES.
The Executive shall serve as Chairman, President and Chief Executive Officer of the Company
and shall perform such duties and responsibilities as may from time to time be prescribed by the
Company’s board of directors (the “Board”), provided that such duties and responsibilities are
consistent with the Executive’s position. The Executive shall perform and discharge faithfully,
diligently and to the best of his ability such duties and responsibilities and shall devote all of
his working time and efforts to the business and affairs of the Company and its affiliates,
including, but not limited to, outside directorships. During the three (3) years following a Change
in Control (as defined herein), the Executive’s position (including offices, titles and reporting
requirements), duties, and responsibilities shall not be reduced, and the Executive shall not be
required to work at a location other than the location at which the Executive was based at the time
of the Change in Control.
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3. COMPENSATION.
(a) BASE SALARY. The Company shall pay to the Executive an annual base salary (“Base Salary”)
One Million Fifty Thousand Dollars ($1,050,000 USD), payable in equal semi-monthly installments
throughout the term of such employment subject to Section 5 hereof (except that the first and last
semi-monthly installments may be prorated, if necessary) and subject to applicable tax and payroll
deductions. The Company shall consider increases in the Executive’s Base Salary annually, and any
such increase in salary implemented by the Company shall become the Executive’s Base Salary for
purposes of this Agreement.
(b) INCENTIVE COMPENSATION. Provided Executive has duly performed his obligations pursuant to
this Agreement, the Executive shall be entitled to participate in the Management Incentive Plan and
the Long-Term Incentive Plan that is implemented by the Company.
(c) EXECUTIVE NONQUALIFIED PENSION PLAN. During the term of this Agreement, the Executive
shall be entitled to participate in the AGCO Corporation Executive Nonqualified Pension Plan
(“SERP”), and the SERP shall be amended to provide for the following:
| (1) | For the purpose of determining years of credited service, the Executive shall be guaranteed the first five (5) years of service. Benefits shall be vested and portable if the Executive’s employment is terminated by the Company without Cause, by the Executive for Good Reason or by the Company by not renewing this Agreement, even if the Executive’s actual employment is less than five (5) years. | ||
| (2) | In the event the Executive elects to terminate employment with the Company for reasons other than Good Reason, the benefits of the SERP shall not be portable. |
(d) OTHER BENEFITS. During the term of this Agreement, the Executive shall be entitled to
participate in the employee benefit plans and arrangements which are available to senior executive
officers of the Company, including, without limitation, group health and life insurance, pension
and savings, and the Senior Management Employment Policy.
(e) FRINGE BENEFITS. The Company shall pay or reimburse the Executive promptly for all
reasonable and necessary expenses incurred by him in connection with his duties hereunder, upon
submission by the Executive to the Company of such written evidence of such expenses as the Company
may require. Throughout the term of this Agreement, the Company will provide the Executive with
the use of a vehicle for purposes within the scope of his employment and shall pay, or reimburse
Executive for, all expenses for fuel, maintenance and insurance in connection with such use of the
automobile. The Company shall make any such reimbursement or payments under this Section 3(e) no
later than the last day of the Executive’s
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taxable year next following the Executive’s taxable year in which the Executive incurs the expense.
The Company further agrees that the Executive shall be entitled to four (4) weeks of vacation in
any year of the term of employment hereunder, subject to the terms of the Company’s vacation
policy.
(f) MODIFICATION OF BENEFITS. Without by implication limiting the foregoing, during the three
(3) years following a Change in Control, the Executive’s compensation, including Base Salary,
incentive compensation opportunity, SERP opportunity, other benefits and fringe benefits shall not
be reduced. Notwithstanding the foregoing, the Company shall be entitled to modify the group
health benefits provided such modifications are applicable to all similarly situated management
employees. To the extent that the Company is not able to continue life, group health or similar
benefits as a result of the terms of the applicable plans or insurance policies, the Company shall
pay the Executive the cost, no less frequently than monthly, that the Executive must incur to
obtain such benefits privately.
4. RESTRICTIVE COVENANTS
(a) ACKNOWLEDGMENTS. The Executive acknowledges that as an Executive Officer of the Company
(i) he frequently will be exposed to certain “Trade Secrets” and “Confidential Information” of the
Company (as those terms are defined in Subsection 4(b)), (ii) his responsibilities on behalf of the
Company will extend to all geographical areas where the Company is doing business, and (iii) any
competitive activity on his part during the term of his employment and for a reasonable period
thereafter would necessarily involve his use of the Company’s Trade Secrets and Confidential
Information and, therefore, would unfairly threaten the Company’s legitimate business interests,
including its substantial investment in the proprietary aspects of its business and the goodwill
associated with its customer base. Moreover, the Executive acknowledges that, in the event of the
termination of his employment with the Company, he would have sufficient skills to find
alternative, commensurate work in his field of expertise that would not involve a violation of any
of the provisions of this Section 4. Therefore, the Executive acknowledges and agrees that it is
reasonable for the Company to require him to abide by the covenants set forth in this Section 4.
The parties acknowledge and agree that if the nature of the Executive’s responsibilities for or on
behalf of the Company and the geographical areas in which the Executive must fulfill them
materially change, the parties will execute appropriate amendments to the scope of the covenants in
this Section 4.
(b) DEFINTIONS.
(i) “Business of Company” means designing, manufacturing, marketing, and
distributing agricultural equipment.
(ii) “Material Contact” as used in the non-solicitation provision below means
personal contact or the supervision of the efforts of those who have personal
contact with an existing or potential Customer or Vendor in an effort to further or
create a business relationship between the Company and such existing or potential
Customer or Vendor.
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(iii) “Confidential Information” means information about the Company, its
Executives, and Customers which is not generally known outside of the Company, which
the Executive learns of in connection with the Executive’s employment with the
Company, and which would be useful to competitors of the Company or potentially
harmful to the Company’s reputation. Confidential Information includes, but is not
limited to: (1) business and employment policies, marketing methods and the targets
of those methods, finances, business plans, promotional materials and price lists;
(2) the terms upon which the Company hires employees and provides services to its
Customers; (3) the nature, origin, composition and development of the Company’s
products and services; and (4) the manner in which the Company provides products and
services to its Customers.
(iv) “Trade Secrets” means Confidential Information which meets the additional
requirements of the Georgia Trade Secrets Act.
(v) “Territory” means those countries and areas as more particularly set forth on
Exhibit A attached hereto.
(c) COVENANT OF CONFIDENTIALITY. During the term of this Agreement, the Executive agrees only
to use and disclose Confidential Information in connection with his duties hereunder and to
otherwise maintain the secrecy of the same. The Executive agrees that for a period of five years
following the cessation of his employment for any reason, he shall not directly or indirectly
divulge or make use of any Confidential Information or Trade Secrets of the Company without prior
written consent of the Company. The Executive further agrees that if he is questioned about
information subject to this Agreement by anyone not authorized to receive such information, he will
promptly notify the Chairman of the Board. This Agreement does not limit the remedies available
under common or statutory law, which may impose longer duties of non-disclosure. The Executive
will immediately notify the Chairman of the Board if he receives any subpoenas which could require
the disclosure of Confidential Information, so that the Company may take whatever actions it deems
necessary to protect its interests.
(d) COVENANT OF NON-COMPETITION. The Executive agrees that while employed by the Company and
for a period of twenty-four (24) months following the cessation of his employment for any reason,
he will not compete with the Business of Company by performing services of the same or similar type
as those he performed for the Company as an employee, contractor, consultant, officer, director or
agent for any person or entity engaged in the Business of Company. Likewise, the Executive will not
perform activities of the type which in the ordinary course of business would involve the
utilization of Confidential Information or Trade Secrets protected from disclosure by Section 4 (c)
of this Agreement. This paragraph restricts competition only within the Territory.
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(e) COVENANT OF NON-SOLICITATION. The Executive agrees that while employed by the Company and
for a period of twenty-four
(24) months following the
cessation of his employment for any reason, he will not directly or indirectly solicit or attempt
to solicit any business in competition with the Business of Company from any of the Customers with
whom the Executive had Material Contact within the last 18 months of his employment with the
Company. The Executive further agrees that for a period of twenty-four (24) months following the
cessation of his employment, he will not directly or indirectly solicit or attempt to solicit any
Vendors of the Company with whom he had Material Contact during the last 18 months of his
employment with the Company to provide services to any person or entity which competes with the
Business of Company.
(f) COVENANT OF NON-RECRUITMENT. The Executive agrees that while employed by the Company and
for a period of twenty-four
(24) months following the cessation of his employment for any reason,
he will not directly or indirectly solicit or attempt to solicit any other employee of the Company
for the purpose of encouraging, enticing, or causing said employee to voluntarily terminate
employment with the Company.
(g) COVENANT TO RETURN PROPERTY AND INFORMATION. The Executive agrees to return all of the
Company’s property within seven (7) days following the cessation of his employment for any reason.
Such property includes, but is not limited to, the original and any copy (regardless of the manner
in which it is recorded) of all information provided by the Company to the Executive, or which the
Executive has developed or collected in the scope of his employment with the Company, as well as
all Company-issued equipment, supplies, accessories, vehicles, keys, instruments, tools, devices,
computers, cell phones, pagers, materials, documents, plans, records, notebooks, drawings, or
papers.
(h) ASSIGNMENT OF WORK PRODUCT AND INVENTIONS. The Executive hereby assigns and grants to the
Company (and will upon request take any actions needed to formally assign and grant to the Company
and/or obtain patents, trademark registrations or copyrights belonging to the Company) the sole and
exclusive ownership of any and all inventions, information, reports, computer software or programs,
writings, technical information or work product collected or developed by the Executive, alone or
with others, during the term of the Executive’s employment. This duty applies whether or not the
forgoing inventions or information are made or prepared in the course of employment with the
Company, so long as such inventions or information relate to the Business of Company and have been
developed in whole or in part during the term of the Executive’s employment. The Executive agrees
to advise the Company in writing of each invention that Executive, alone or with others, makes or
conceives during the term of Executive’s employment. Inventions which the Executive developed
before the Executive came to work for the Company, if any, are as follows: None.
(i) REMEDIES FOR VIOLATION OF RESTRICTIVE COVENANTS. The Executive acknowledges that the
Company would suffer irreparable harm if the Executive fails to comply with the foregoing, and that
the Company would be entitled to any appropriate relief, including money damages, injunctive and
other equitable relief and attorneys’ fees. The
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Executive agrees that the pendency of any claim
whatsoever against the Company shall not constitute a defense to the enforcement of this
Noncompetition Agreement by the Company.
(j) SEVERABILITY. In the event that any one or more of the provisions of these restrictive
covenants shall be held 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.
Moreover, if any one or more of the provisions contained in these restrictive covenants shall be
held to be excessively broad as to duration, activity or subject, the parties authorize the Court
in which such action is pending to modify said covenants and enforce them to the extent that the
Court deems reasonable.
5. TERMINATION.
(a) DEATH. This Agreement shall terminate upon the death of the Executive, provided, however,
that for purposes of the payment of Base Salary to the Executive, the death of the Executive shall
be deemed to have occurred ninety (90) days from the last day of the month in which the death of
the Executive shall have occurred.
(b) DISABILITY. Executive’s employment and all obligations of the Company hereunder shall
terminate upon a finding that the Executive is disabled under the Company’s group long term
disability plan.
(c) CAUSE. The Company may terminate the Executive’s employment hereunder for Cause by giving
written Notice of Termination to the Executive. For the purposes of this Agreement, the Company
shall have “Cause” to terminate the Executive’s employment hereunder upon: (i) the conviction of
Executive of, or the entry of a plea of guilty, first offender probation before judgment, or nolo
contendere by Executive to, any felony; (ii) fraud, misappropriation or embezzlement by Executive;
(iii) Executive’s willful failure or gross negligence in the performance of his assigned duties for
the Company, which failure or negligence continues for more than or was not remedied within thirty
(30) calendar days following Executive’s receipt of written notice of such willful failure or gross
negligence; (iv) Executive’s failure to follow reasonable and lawful directives of the Board or his
breach of his fiduciary duty to the Company, which failure is not remedied within thirty (30)
calendar days following Executive’s receipt of written notice of such failure; (v) any act or
omission of Executive that has a demonstrated and material adverse impact on the Company’s business
or reputation for honesty and fair dealing, other than an act or failure to act by Executive in
good faith and without reason to believe that such act or failure to act would adversely impact on
the Company’s business or reputation for honesty and fair dealing; or (vi) the breach by Executive
of any material term of this Agreement, which breach continues for more than or was not remedied
within thirty (30) calendar days following Executive’s receipt of written notice of such breach.
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(d) WITHOUT CAUSE; GOOD REASON.
| (i) | The Company may terminate the Executive’s employment hereunder without Cause, by giving written Notice of Termination (as defined in Section 5(e)) to the Executive. | ||
| (ii) | The Executive may terminate his employment hereunder, by giving written Notice of Termination to the Company. For the purposes of this Agreement, the Executive shall have “Good Reason” to terminate his employment hereunder upon (a) a substantial reduction in the Executive’s aggregate Base Salary and annual incentive compensation taken as a whole, excluding any reductions caused by the performance of the Company or the Executive, including but not limited to, the failure by the Executive to achieve performance targets established from time to time by the Board and/or under the Management Incentive Plan or Long Term Incentive Plan or from below budget performance by the Company, or (b) the Company’s failure to make payments of Base Pay and incentive compensation, but only upon notice of such failure given by the Executive within ninety (90) days of the initial existence of the failure and the subsequent failure of the Company to cure the non-payment within thirty (30) days of such notice. |
(e) NOTICE OF TERMINATION. Any termination by the Company pursuant to the Subsections (b),
(c) or (d)(i) above or by the Executive pursuant to Subsection (d)(ii) above, shall be communicated
by written Notice of Termination from the party issuing such notice to the other party hereto. For
purposes of this Agreement, a “Notice of Termination” shall mean a notice which shall indicate the
specific termination provision of this Agreement relied upon and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for such termination. A date of
termination specified in the Notice of Termination shall not be dated earlier than ninety (90) days
from the date such Notice is delivered or mailed to the applicable party and not later than two (2)
years after the initial existence of the failure.
(f) OBLIGATION TO PAY. Except upon termination for Cause, voluntary termination by the
Executive without Good Reason, or termination as a result of death or disability, and further
subject to Sections 6 and 16 below, the Company shall (i) pay the compensation specified in this
Subsection 5(f) to the Executive for the period specified in this Subsection 5(f), (ii) continue to
provide, no less frequently than monthly, life insurance benefits during the remainder of the
applicable period, including the Severance Period set forth in this Subsection 5(f), and (iii) if
and to the extent the Executive timely elects COBRA continuation coverage, pay the Executive on a
monthly basis the cost of COBRA premiums for a period of 18 months or such lesser period as the
Executive continues to have COBRA continuation coverage.
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If the Executive’s employment shall be terminated by reason of death, the estate of the
Executive shall be paid all Base Salary and reimbursements otherwise payable to the Executive
through the end of the third month after the month in which the death of the Executive occurred,
plus all bonus or other incentive benefits accrued or accruable to the Executive through the end of
the month in which the death of the Executive occurred, on the same basis as if the Executive had
continued employment through such times, and the Company shall have no further obligations to the
Executive under this Agreement.
If the Executive’s employment is terminated by reason of disability as determined under the
Company’s long term disability plan, the Executive or the person charged with legal responsibility
for the Executive’s estate shall be paid all Base Salary and reimbursements and payments otherwise
payable to the Executive, including the bonus and other benefits accrued or accruable to the
Executive, on the same basis as if the Executive had continued employment through the date of
disability, and the Company shall have no further obligations to the Executive under this
Agreement.
If the Executive’s employment shall be terminated for Cause, the Company shall pay the
Executive his Base Salary through the date of termination specified in the Notice of Termination
and reimbursements otherwise payable to the Executive and the Company shall have no further
obligations to the Executive under this Agreement.
If the Executive’s employment shall be terminated by the Company by not renewing the Agreement
following the initial term or any subsequent term, the Executive shall be paid all Base Salary and
reimbursements and payments otherwise payable to the Executive, including the bonus and other
benefits accrued or accruable to the Executive, through the date of termination specified in the
Notice of Termination, and the Company shall pay the Executive the sum of (x) two (2) times the
Base Salary (at the rate in effect on the date of such termination plus (y) a bonus in an amount
equal to the three (3) year average of the awards received by the participant during the prior two
(2) completed years and the current year’s trend (based upon results through the month most
recently complete prior to the termination, extrapolated for the complete year) multiplied by two
(2) times provided, however, that notwithstanding the foregoing, the Executive shall not be
entitled to any severance payments under clauses (x) or (y) of this sentence upon and after
reaching age 65. The Executive shall have no further right to receive any other compensation,
benefits or perquisites after the date of termination of employment except as determined under the
terms of this Agreement or any applicable employee benefit plans or programs of the Company or
under applicable law.
If the Executive’s employment shall be terminated by the Company without Cause or by the
Executive for Good Reason, the Company shall (x) continue to pay the Executive the Base Salary (at
the rate in effect on the date of such termination) for a period of two (2) years from the date of
such termination (such two (2) year period being referred to hereinafter as the “Severance Period”)
at such intervals as the same would have been paid had the Executive remained in the active service
of the Company, plus (y) a bonus in an amount equal to the three (3) year average of the awards
received by the participant during the prior two (2) completed years and the current year’s trend
(based upon results through the month most recently complete prior to the
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termination, extrapolated for the complete year) multiplied by two (2) times; provided,
however, that notwithstanding the foregoing, the Executive shall not be entitled to any severance
payments under clauses (x) and (y) of this sentence upon and after reaching age 65 . The Executive
shall have no further right to receive any other compensation, benefits or perquisites after the
date of termination of employment except as determined under the terms of this Agreement or any
applicable employee benefit plans or programs of the Company or under applicable law.
If within two (2) years following a Change in Control the Executive’s employment shall be
terminated by the Company without Cause or by the Executive for Good Reason (a “Change in Control
Termination”), the Company shall immediately pay, and in all events within thirty (30) days after
the date of termination, the Executive the sum of (x) three (3) times the Base Salary (at the rate
in effect on the date of such termination), (y) a pro rata portion of the bonus or other incentive
benefits to which the Executive would have been entitled for the year of termination had the
Executive remained employed for the entire year, plus (z) a bonus in an amount equal to the three
(3) year average of the awards received by the participant during the prior two (2) completed years
and the current year’s trend (based upon results through the month most recently complete prior to
the termination, extrapolated for the complete year) multiplied by three (3) times. Any payment
due to the Executive with respect to clause (y) and (z) that is calculated based upon the Company’s
Management Incentive Plan shall be reduced by any similar amounts received by the Executive under
such plan. Also, notwithstanding the foregoing, in the event of a Change in Control Termination,
the Company shall continue the Executive’s life and group health coverage for a period of three (3)
years, subject to the same payments by the Executive that the Executive was required to make prior
to termination. Notwithstanding the foregoing, the Company shall be entitled to modify the group
health benefits provided such modifications are applicable to all similarly situated management
employees. To the extent that the Company is not able to continue life or group health benefits as
a result of the terms of the applicable plans or insurance policies, the Company shall pay the
Executive the cost, no less frequently than monthly, that the Executive must incur to obtain such
benefits privately.
For the purposes of this Agreement, the term “Change in Control” shall mean change in the
ownership of the Company, change in the effective control of the Company or change in ownership of
a substantial portion of the Company’s assets, as described in Section 280G of the Code, including
each of the following: (i) a change in the ownership of the Company occurs on the date that any one
person, or more than one person acting as a group, acquires ownership of stock of the Company that,
together with stock held by such person or group, possess more than fifty percent (50%) of the
total fair market value or total voting power of the stock of the Company (unless any one person,
or more than one person acting as a group, who is considered to own more than fifty percent (50%)
of the total fair market value or total voting power of the stock of the Company, acquires
additional stock); (ii) change in the effective control of the Company is presumed (which
presumption may be rebutted by the Compensation Committee of the Board) to occur on the date that
either: any one person, or more than one person acting as a group, acquires (or has acquired during
the twelve (12)-month period ending on the date of the most recent acquisition by such person or
persons) ownership of stock of the Company possessing thirty percent (30%) or more of the total
voting power of the stock of such Company;
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(iii) a majority of members of the Company’s Board is
replaced during any twelve (12)-month
period by directors whose appointment or election is not endorsed by a majority of the members
of the Company’s Board prior to the date of the appointment or election of such new directors; or
(iv) a change in the ownership of a substantial portion of the Company’s assets occurs on the date
that any one person, or more than one person acting as a group, acquires (or has acquired during
the twelve (12)-month period ending on the date of the most recent acquisition by such person or
persons) assets from the Company that have a total fair market value equal to forty percent (40%)
or more of the total fair market value of all of the assets of the Company immediately prior to
such acquisition or acquisitions unless the assets are transferred to: a stockholder of the Company
(immediately before the asset transfer) in exchange for or with respect to its stock; an entity,
fifty percent (50%) or more of the total value or voting power of which is owned, directly or
indirectly by the Company; a person, or more than one person acting as a group, that owns, directly
or indirectly, fifty percent (50%) or more of the total value or voting power of all of the
outstanding stock of the Company; or an entity, at least fifty percent (50%) of the total value or
voting power is owned, directly or indirectly, by a person, or more than one person acting as a
group, that owns directly or indirectly, fifty percent (50%) or more of the total value of voting
power of all of the outstanding stock of the Company.
(g) TAXES. In the event it shall be determined that any payment or distribution by the
Company to or for the benefit of the Executive in the event of a Change in Control, whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, (a
“Change in Control Payment”) would be subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the “Code”) or any interest or penalties are incurred by
the Executive with respect to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall
be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after
payment by the Executive of all taxes (including any interest or penalties imposed with respect to
such taxes), including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Change in
Control Payments. The Company shall pay all such Gross-Up Payments before such excise taxes are
required to be remitted.
| 6. | CONDITIONS APPLICABLE TO SEVERANCE PERIOD; MITIGATION OF DAMAGES |
(a) If during the Severance Period, the Executive breaches his obligations under Section 4
above, the Company may, upon written notice to the Executive, terminate the Severance Period and
cease to make any further payments or provide any benefits described in Subsection 5(f).
(b) Although the Executive shall not be required to mitigate the amount of any payment
provided for in Subsection 5(f) by seeking other employment, except in the case of
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a Change in
Control Termination, any such payments shall be reduced by any amounts which the
Executive receives or is entitled to receive from another employer with respect to the Severance
Period. The Executive shall promptly notify the Company in writing in the event that other
employment is obtained during the Severance Period.
7. NOTICES. For the purpose of this Agreement, notices and all other communications to either
party hereunder provided for in the Agreement shall be in writing and shall be deemed to have been
duly given when delivered in person or mailed by certified first-class mail, postage prepaid,
addressed:
in the case of the Company to:
AGCO Corporation
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
in the case of the Executive to:
Xxxxxx Xxxxxxxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxxx, Xxxxxxx 00000
0000 Xxxx Xxxx Xxxx
Xxxxxx, Xxxxxxx 00000
or to such other address as either party shall designate by giving written notice of such change to
the other party.
8. ARBITRATION. Any claim, controversy, or dispute arising between the parties
with respect to this Agreement, to the maximum extent allowed by applicable law, shall be submitted
to and resolved by binding arbitration. The arbitration shall be conducted pursuant to the terms
of the Federal Arbitration Act and (except as otherwise specified herein) the Commercial
Arbitration Rules of the American Arbitration Association in effect at the time the arbitration is
commenced. The venue for the arbitration shall be the Atlanta, Georgia offices of the American
Arbitration Association. Either party may notify the other party at any time of the existence of
an arbitrable controversy by delivery in person or by certified mail of a Notice of Arbitrable
Controversy. Upon receipt of such a Notice, the parties shall attempt in good faith to resolve
their differences within fifteen (15) days after the receipt of such Notice. Notice to the Company
and the Executive shall be sent to the addresses specified in Section 7 above. If the dispute
cannot be resolved within the fifteen (15) day period, either party may file a written Demand for
Arbitration with the American Arbitration Association’s Atlanta, Georgia Regional Office, and shall
send a copy of the Demand for Arbitration to the other party. The arbitration shall be conducted
before a panel of three (3) arbitrators. The arbitrators shall be selected as follows: (a) The
party filing the Demand for Arbitration shall simultaneously specify his or its arbitrator, giving
the name, address and telephone number of said arbitrator; (b) The party receiving such notice
shall notify the party demanding the arbitration of his or its arbitrator, giving the name, address
and telephone number of the arbitrator within five (5) days of the
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receipt of such Demand for
Arbitration; (c) A neutral person shall be selected through the
American Arbitration Association’s arbitrator selection procedures to serve as the third
arbitrator. The arbitrator designated by any party need not be neutral. In the event that any
person fails or refuses timely to name his arbitrator within the time specified in this Section 8,
the American Arbitration Association shall (immediately upon notice from the other party) appoint
an arbitrator. The arbitrators thus constituted shall promptly meet, select a chairperson, fix the
time, date(s), and place of the hearing, and notify the parties. To the extent practical, the
arbitrators shall schedule the hearing to commence within sixty (60) days after the arbitrators
have been impaneled. A majority of the panel shall render an award within ten (10) days of the
completion of the hearing, which award may include an award of interest, legal fees and costs of
arbitration. The panel of arbitrators shall promptly transmit an executed copy of the award to the
respective parties. The award of the arbitrators shall be final, binding and conclusive upon the
parties hereto. Each party shall have the right to have the award enforced by any court of
competent jurisdiction.
Executive initials:
|
Company initials: |
9. NO WAIVER. No provision of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is approved by the Board and agreed to in a writing signed
by the Executive and such officer as may be specifically authorized by the Board. No waiver by
either party hereto at any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party shall be deemed a
waiver of any other provisions or conditions of this Agreement at the same or at any prior or
subsequent time.
10. SUCCESSORS AND ASSIGNS. The rights and obligations of the Company under this Agreement
shall inure to the benefit of and be binding upon the successors and assigns of the Company and the
Executive’s rights under this Agreement shall inure to the benefit of and be binding upon his heirs
and executors. Neither this Agreement or any rights or obligations of the Executive herein shall
be transferable or assignable by the Executive.
11. VALIDITY. The invalidity or unenforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other provisions of this
Agreement, which shall remain in full force and effect. The parties intend for each of the
covenants contained in Section 4 to be severable from one another.
12. SURVIVAL. The provisions of Section 4 hereof shall survive the termination of Executive’s
employment and shall be binding upon the Executive’s personal or legal representative, executors,
administrators, successors, heirs, distributees, devisees and legatees and the provisions of
Section 5 hereof relating to payments and termination of the Executive’s employment hereunder shall
survive such termination and shall be binding upon the Company.
13. COUNTERPARTS. 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 will constitute one and the same
instrument.
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14. ENTIRE AGREEMENT. This Agreement constitutes the full agreement and understanding of the
parties hereto with respect to the subject matter hereof and all prior or contemporaneous
agreements or understandings are merged herein. The parties to this Agreement each acknowledge
that both of them and their respective agents and advisors were active in the negotiation and
drafting of the terms of this Agreement.
15. GOVERNING LAW. The validity, construction and enforcement of this Agreement, and the
determination of the rights and duties of the parties hereto, shall be governed by the laws of the
State of Georgia.
16. DEFERRED COMPENSATION PLAN OMNIBUS PROVISIONS. Notwithstanding any other provision of this
Agreement, it is intended that any payment or benefit which is provided pursuant to or in
connection with this Agreement which is considered to be deferred compensation subject to Section
409A of the Code shall be provided and paid in a manner, and at such time, including without
limitation payment and provision of benefits only in connection with a permissible payment event
contained in Section 409A (e.g., death or separation from service from the Company and its
affiliates as defined for purposes of Section 409A of the Code), and in such form, as complies with
the applicable requirements of Section 409A of the Code, to avoid the unfavorable tax consequences
provided therein for non-compliance. For purposes of this Agreement, all rights to payments and
benefits hereunder shall be treated as rights to receive a series of separate payments and benefits
to the fullest extent allowed by Section 409A of the Code. If Executive is a “specified employee”
(as defined in Section 409A of the Code) and any of the Company’s stock is publicly traded on an
established securities market or otherwise, then payment of any amount or provision of any benefit
under this Agreement which is considered to be deferred compensation subject to Section 409A of the
Code shall be deferred for six (6) months as required by Section 409A(a)(2)(B)(i) of the Code (the
“409A Deferral Period”). In the event such payments are otherwise due to be made in installments
or periodically during the 409A Deferral Period, the payments which would otherwise have been made
in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A
Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the
event benefits are required to be deferred, any such benefit may be provided during the 409A
Deferral Period at Executive’s expense, with Executive having a right to reimbursement from the
Company once the 409A Deferral Period ends, and the balance of the benefits shall be provided as
otherwise scheduled. For purposes of this Agreement, any termination of employment will be read to
mean a “separation from service” within the meaning of Section 409A of the Code where it is
reasonably anticipated that no further services would be performed after such date or that the
level of bona fide services Executive would perform after that date (whether as an employee or
independent contractor) would permanently decrease to less than fifty percent (50%) of the average
level of bona fide services performed over the immediately preceding thirty-six (36)-month period.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
| AGCO CORPORATION | ||||||
| By: | /s/ Xxxxx X. Xxxxx | |||||
| Name: | Xxxxx X. Xxxxx | |||||
| Title: | VP, General Counsel & Secretary | |||||
| EXECUTIVE | ||||||
| By: | /s/ Xxxxxx Xxxxxxxxxxx | |||||
| Name: | Xxxxxx Xxxxxxxxxxx | |||||
| Date: | February 24, 2010 | |||||
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