AGREEMENT
Exhibit 10
AGREEMENT
THIS AGREEMENT (“Agreement”) is made as of the 29th day of September, 2005, by and
between Xxxx X. Xxxxxxxxx (“Xxxxxxxxx”) and Xxxxxx-Xxxxxxx-Midland Company, a Delaware corporation
(“ADM”).
WITNESSETH:
WHEREAS, Xxxxxxxxx has been employed by ADM in the capacity of President and Chief Operating
Officer; and
WHEREAS, Xxxxxxxxx and ADM desire to effect an amicable separation of employment, without
litigation or controversy, in light of Xxxxxxxxx’x September 15, 2005 retirement from ADM.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, it is
agreed as follows:
1. Upon his retirement, Xxxxxxxxx became entitled to certain benefits as set forth in this
paragraph 1. These benefits are subject to Xxxxxxxxx remaining retired (within the meaning of the
ADM Retirement Plan as in effect on the date hereof) and may be forfeited if he ceases to be
retired (other than with respect to his consultation and cooperation obligations to ADM set forth
herein), and are composed of the following:
a. The restricted stock granted to Xxxxxxxxx in the Restricted Stock Award
Agreements dated August 8, 2005 and August 19, 2004 will continue to vest according
to the terms of those agreements. Xxxxxxxxx’x separation from ADM shall
conclusively be deemed to be pursuant to “Retirement,” as such term is used in the
various stock award and stock option agreements which Xxxxxxxxx participates in.
Xxxxxxxxx is entitled to exercise all vested stock options according to the terms of
the applicable stock option agreements between him and ADM;
x. Xxxxxxxxx is permitted to roll over all amounts in his 401(k)/ESOP account into a
self directed XXX;
x. Xxxxxxxxx will receive all salary he has previously deferred pursuant to the ADM
Deferred Compensation Plan(s) in accordance with the terms of such plan(s); and
x. Xxxxxxxxx is permitted to participate in any retiree benefit programs for which
he is eligible.
2. Non-competition, etc.
a. As ADM’s President and Chief Operating Officer (“COO”), Xxxxxxxxx had direct
access to and personal knowledge of ADM’s most important proprietary business
information including, but not limited to, business plans and strategies, financial
information, trading and hedging strategies, and operational methods, plans and
strategies. This information is proprietary to ADM and subject to reasonable
efforts by ADM to secure its confidentiality. This proprietary information has
significant value to ADM as it provides ADM with a strategic advantage over it
competitors. Were this information provided to ADM’s competitors, ADM would be
irreparably harmed. ADM and Xxxxxxxxx agree that if Xxxxxxxxx were to work for one
of ADM’s competitors within the next three years, he would be unable to perform his
duties without disclosing ADM’s confidential and proprietary business information.
b. Consequently, without the prior written consent of ADM, which consent must be
signed by the Chief Executive or President of ADM until September 15, 2008,
Xxxxxxxxx shall not own any interest in, except the
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ownership of stock in a publicly-traded company, take any employment with, or act as
a director, officer, agent, consultant, advisor, independent contractor or in any
other capacity whatsoever, directly or indirectly, with or to any person,
corporation, partnership, limited liability company, firm, joint venture or any
other form of entity, anywhere in the world, that competes with ADM or any of its
subsidiaries or affiliates or provides the same goods or services as ADM or any of
its subsidiaries or affiliates.
x. Xxxxxxxxx acknowledges that, in light of his responsibilities while employed as
ADM’s President and COO, the scope of these post-employment restrictions is
reasonable and that if he were to come out of retirement, he would have ample job
opportunities based upon his experience and education. Xxxxxxxxx further
acknowledges that a violation of this paragraph 2 would cause irreparable damage to
ADM and that in the event of a breach or threatened breach, hereof, ADM would be
entitled to injunctive relief, without the posting of any bond, in addition to such
other relief as may be appropriate at law or in equity.
d. For the period from the Effective Date of this Agreement through September 15,
0000, Xxxxxxxxx shall not hire or solicit for employment any employee on the payroll
of ADM or any of its subsidiaries or affiliates.
3. The Non-Disclosure Agreement between ADM and Xxxxxxxxx dated January 6, 1992, a copy of which is
marked Exhibit A, attached hereto and by this reference incorporated herein, shall remain in full
force and effect in accordance with its terms.
4. In consideration of the post-employment restrictions placed on Xxxxxxxxx in this Agreement
and the continuing application of the Non-Disclosure Agreement, ADM shall
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provide Xxxxxxxxx the following valuable consideration to which he would not otherwise have
been entitled:
a. ADM shall pay Xxxxxxxxx the cash value of the restricted stock granted to him
under the terms of the October 14, 2003 Restricted Stock Award Agreement as provided
for herein. The amount shall be determined by multiplying the number of shares of
restricted stock by $23.16, the closing price for ADM’s Common Stock on September
15, 2005. Payments shall be made as follows:
i.25% of the amount on the Effective Date of this Agreement;
ii.25% of the amount on September 15, 2006, provided Xxxxxxxxx has fully complied with paragraphs 2 and 3 of this Agreement;
ii.25% of the amount on September 15, 2006, provided Xxxxxxxxx has fully complied with paragraphs 2 and 3 of this Agreement;
iii.25% of the amount on September 15, 2007, provided Xxxxxxxxx has fully
complied with paragraphs 2 and 3 of this Agreement; and
iv.25% of the amount on September 15, 2008, provided Xxxxxxxxx has fully
complied with paragraphs 2 and 3 of this Agreement.
b. ADM shall retain Xxxxxxxxx as a consultant for a three-year period from September
15, 2005 expiring September 15, 2008. Xxxxxxxxx shall perform such reasonable
duties as he may be requested to perform by ADM’s Chief Executive. ADM shall
compensate Xxxxxxxxx by paying him $550,000 per year (payable monthly in arrears)
for his consulting services provided Xxxxxxxxx has fully complied with paragraphs 2
and 3 of this Agreement.
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5. Release
x. Xxxxxxxxx hereby forever releases ADM, and its subsidiaries and affiliates and
each of ADM’s and its subsidiaries’ and affilicates’ officers, directors,
representatives, shareholders, agents, employees, predecessors, successors and
assigns (collectively “Releasees”), from any and all complaints, charges, claims,
liabilities, demands, debts, accounts, obligations, promises, suits, actions, causes
of action, demands in law or equity, including claims for damages, attorneys’ fees
or costs, whether known or unknown, which Xxxxxxxxx now has, or claims to have, or
which Xxxxxxxxx at any time may have had, or claimed to have, or which Xxxxxxxxx at
any time hereafter may have, or claim to have, arising at any time in the past to
and including the date of this Agreement, including, but without limiting the
generality of the foregoing, any matters relating in any way to Xxxxxxxxx’x
employment relationship with ADM or his retirement from ADM.
b. The claims, rights and obligations that Xxxxxxxxx is hereby releasing include,
but are not limited to:
i. those for breach of contract, breach of implied contract, breach of
implied covenant of good faith and fair dealing, wrongful discharge,
retaliatory discharge, constructive discharge, and any other common law or
statutory claims now or hereafter recognized;
ii. those for discrimination (including but not limited to claims for
discrimination, harassment or retaliation on account of gender, age,
handicap, medical condition or disability, national origin, race, color,
religion, sexual preference, or veteran status) which Xxxxxxxxx might
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have or might have had under the Age Discrimination in Employment Act, Title
VII of the 1964 Civil Rights Act, the Civil Rights Act of 1866, the
Americans with Disabilities Act, the Family and Medical Leave Act, the
Rehabilitation Act of 1973, the Illinois Constitution, the Illinois Human
Rights Act, the Illinois Wage Payment and Calculation Act, the Illinois
Minimum Wage Law, and any other federal, state or local laws, statutes,
orders, regulations or enactments of any type. By signing this Agreement,
Xxxxxxxxx agrees to give up, or waive, any rights or claims which he may
have had under the Age Discrimination in Employment Act of 1967, 29 U.S.C.
§621 et. seq., the Older Worker Benefit Protection Act, or
any other statutes or other laws, which are based on the actions of any of
the Releasees that occurred up through the date that Xxxxxxxxx signs this
Agreement; and,
iii. Any and all claims for attorneys’ fees and costs.
x. Xxxxxxxxx further acknowledges and agrees that this Agreement shall operate as a
complete bar to recovery in any and all litigation, charges, complaints, grievances
or demands of any kind whatsoever now pending or now contemplated by Xxxxxxxxx or
which might at any time be filed by Xxxxxxxxx related to his employment with ADM and
his retirement from ADM. Each and all of the said claims are hereby fully and
finally settled, compromised and released.
d. Nothing in this paragraph 5 is intended to operate as a release, waiver or
forfeiture of Xxxxxxxxx’x rights, and ADM’s obligations, under (i) this Agreement,
(ii) any 401(k), ESOP or other retirement plan which Xxxxxxxxx
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participates in as of the date hereof, and (iii) any indemnification or similar
right relating to actual or alleged acts or omissions by Xxxxxxxxx in his office
capacity as an officer of ADM prior to the date hereof.
6. In consideration for the Release in paragraph 5, and Xxxxxxxxx’x other covenants herein,
ADM shall:
a. pay Xxxxxxxxx, on the Effective Date of this Agreement, an amount equal to the
aggregate difference between the option price and $23.16, the closing share price of
ADM common stock on September 15, 2005 for all of Xxxxxxxxx’x unvested stock options
as of the date hereof.;
b. transfer to Xxxxxxxxx unencumbered title to Xxxxxxxxx’x company car on or before
December 31, 2005; and
c. provide Xxxxxxxxx with coverage under ADM’s retiree medical plan.
7. Upon ADM’s request, Xxxxxxxxx shall provide his reasonable cooperation relative to any
matter which arises within Xxxxxxxxx’x former area(s) of responsibility with ADM which is based
upon facts occurring or circumstances existing prior to the date hereof. ADM shall reimburse
Xxxxxxxxx for any out-of-pocket expenses reasonably incurred by Xxxxxxxxx providing any such
requested cooperation upon presentation of appropriate supporting documentation.
8. Xxxxxxxxx expressly acknowledges that:
a. He was provided with a copy of this Agreement and was advised in writing to
consult with an attorney concerning its meaning and effect.
b. He was provided twenty-one (21) days to consider whether to enter into this
Agreement. Subsequently, Xxxxxxxxx retained the law firm of Xxxxx Xxxxx to advise
him with respect to this Agreement.
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c. He understands he may revoke this Agreement in writing addressed and delivered to
ADM, c/o the General Counsel’s office, within seven (7) days after the execution of
this Agreement in which event this Agreement will be of no force and effect and he
will be entitled to no payments or benefits that were to be paid pursuant to this
Agreement. Unless revoked in accordance with this section 8(c), this Agreement shall
be effective on the 8th day following the date of delivery of an executed
copy of this Agreement to ADM (the “Effective Date”).
d. He was given an adequate opportunity to consider this Agreement and he has read
and understands the meaning and effect of this Agreement.
e. He voluntarily agreed to the terms of the Agreement, which terms were determined
through negotiation, and he intends to be legally bound by the same.
f. The consideration provided herein is sufficient and is consideration to which he
is not otherwise entitled to receive.
9. Xxxxxxxxx agrees that the terms and conditions of this Agreement and the payments made
pursuant hereto shall remain confidential and that he will not disclose the same to any person,
except his immediate family, his legal and financial advisors, or as required by law. Xxxxxxxxx
acknowledges that ADM may be required to publicly disclose this Agreement and its terms in filings
with the United States Securities and Exchange Commission.
10. In the event of a breach by Xxxxxxxxx of the provisions of paragraphs 2 or 3 of this
agreement, ADM shall be released from the obligations to make any further payments
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pursuant to paragraph 4 in addition to pursuing any other available remedy in law or equity,
including without limitation specific performance and injunctive relief.
11. Xxxxxxxxx shall not request or apply for employment with ADM or any of its subsidiaries.
12. This Agreement shall be governed by the laws of the State of Illinois.
13. Xxxxxxxxx agrees that he will not take any action, or make any statement, whether orally
or in writing, which manifestly and demonstrably disparages or impugns the reputation or goodwill
of ADM, its subsidiaries, affiliates or any of their officers, directors or employees. Xxxxxxxxx
will not interfere with the relationships between ADM, its subsidiaries or affiliates and any of
their customers, suppliers, vendors, distributors or representatives. Moreover, Xxxxxxxxx further
agrees that he shall make no public statements, or request, cause or solicit any third-party to
make any public statements, including without limitation to the media, regarding the circumstances
of his retirement.
14. The parties agree that the provisions in paragraphs 2, 3 and 5 are a critical and
non-severable part of this Agreement. By executing this Agreement, the parties state that they
have read the aforementioned paragraphs and after consulting counsel of their choice agree that
they are reasonable and protect the parties’ interests. As such, the parties specifically agree
that if Xxxxxxxxx seeks to invalidate or limit the scope of any of these provisions for any reason,
this Agreement shall have no force or effect. If Xxxxxxxxx brings any action seeking to invalidate
or limit the scope of paragraphs 2 or 3, Xxxxxxxxx shall return to ADM all considerations paid to
him pursuant to paragraph 4 of this Agreement and Xxxxxxxxx shall have no entitlement to any future
payments or benefits provided pursuant to paragraph 4 of this Agreement.
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15. Xxxxxxxxx shall not be in breach of this Agreement or any obligation unless and until
written notice of such breach is given to Xxxxxxxxx and Xxxxxxxxx is afforded a reasonable
opportunity to cure such breach. Such notice shall be delivered via registered mail, return
receipt requested, and shall describe in detail (i) the acts or omissions which ADM believes
constitute such breach, and (ii) the steps, acts or omissions which must be taken by Xxxxxxxxx to
correct and cure any such breach. ADM shall not be allowed to terminate this Agreement or cease
performance hereunder if Xxxxxxxxx is able to cure any breach within thirty (30) days following
delivery of a notice of breach.
16. This Agreement constitutes the entire agreement of the parties and supersedes any and all
prior agreements and understandings between Xxxxxxxxx and ADM, whether oral or in writing. This
Agreement may not be revoked, amended, modified or revised except by a writing executed by
Xxxxxxxxx and the Chief Executive or President of ADM.
17. In the event of litigation in connection with the interpretation or enforcement of this
Agreement, the prevailing party in such action shall be entitled to reimbursement from the other
party, in addition to any other relief awarded, all costs and fees paid or incurred by the
prevailing party in such action, including, without limitation, reasonable attorneys’ fees and
costs.
18. This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective heirs, successors and assigns.
(signature page follows)
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written.
/s/ Xxxx X. Xxxxxxxxx | ||||
XXXX X. XXXXXXXXX |
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Dated: September 29, 2005 | ||||
/s/ Xxxxxx X. Xxxxxxxxxx | ||||
WITNESS | ||||
XXXXXX-XXXXXXX-MIDLAND COMPANY |
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By: | /s/ Xxxxxxx X. Xxxxxxx | |||
Xxxxxxx X. Xxxxxxx | ||||
Its: Senior Vice President and Chief Financial
Officer Dated: September 29, 2005 |
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