EMPLOYMENT AND SEVERANCE AGREEMENT AS AMENDED AND RESTATED
Exhibit 10.7
EMPLOYMENT AND SEVERANCE AGREEMENT
AS AMENDED AND RESTATED
AS AMENDED AND RESTATED
This Employment and Severance Agreement (the “Agreement”), originally effective as of the 5th
day of August, 2005, is amended and restated this by and between AGCO CORPORATION, a Delaware
corporation (the “Company”), and Xxxxxxxx Xxxxxxxxxx (the “Executive”). This Agreement amends,
restates and supersedes the Employment and Severance Agreement between the Company and the
Executive effective as of the 5th day of August, 2005 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 September 1, 2005, and shall continue in effect until
terminated in accordance with Section 5 or any other provision of the Agreement.
2. POSITION AND DUTIES.
The Executive shall serve as a Senior Vice President 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. During the two (2) 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.
3. COMPENSATION.
(a) BASE SALARY. The Company shall pay to the Executive an annual base salary (“Base Salary”)
of Five Hundred and Eleven Thousand Four Hundred Swiss Francs (CHF 511,400) (no adjustments will be
made in the future for any movement in exchange rates) subject to Section 5 hereof 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. The Base Salary and annual bonus will be
paid through a Swiss payroll provider in Swiss francs.
(b) INCENTIVE COMPENSATION. Provided Executive has duly performed his obligations pursuant to
this Agreement, the Executive shall be entitled to an annual bonus to be paid upon the Executive
achieving pre-agreed targets that will be annually reviewed and participate in the Long-Term
Incentive Plan that is implemented by the Company.
(c) PENSION. The Company will contribute 50 percent of the cost of providing retirement
benefits in Switzerland. Pension contributions will be calculated on Base Salary only, not other
remuneration, e.g., incentive compensation. The Company will make the required contributions, if
any, to the Swiss social security system. The Executive is responsible for the employee portion of
both pension contributions and the social securities system.
(d) HEALTH INSURANCE. The Company will provide a health insurance and related benefits
consistent generally with current practices, subject to adjustment to the extent that similar
benefits for similarly situated executives are adjusted. .
(e) OTHER BENEFITS. The Company will pay for sickness and accident insurance in Switzerland
consistent generally with current practices, subject to adjustment to the extent that similar
benefits for similarly situated executives are adjusted.
(f) 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 reasonably 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 the Executive for, all expenses for fuel, maintenance and insurance in connection with
such use of the automobile. Executive shall also be entitled to use the vehicle for private
purposes. In no event will any such reimbursements or payments under this Subsection 3(f) be made,
if at all, later than the last day of the Executive’s 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.
(g) MODIFICATION OF BENEFITS. Without by implication limiting the foregoing, during the two
(2) years following a Change in Control, the Executive’s compensation, including Base Salary,
incentive compensation opportunity, pension, 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)),
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(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) DEFINITIONS.
(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.
(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.
Except where generally known outside the Company, 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 used by the
Company; (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
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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 twelve (12) 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.
(e) COVENANT OF NON-SOLICITATION. The Executive agrees that while employed by the Company and
for a period of twelve (12) 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 twelve (12) 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 twelve (12) 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
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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:
(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 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
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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.
(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 or by the Executive 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 voluntary termination by the Executive without Good
Reason, termination by the Company for Cause, or termination as a result of death or disability and
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.
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 and payments otherwise payable to the
Executive through the end of the third month after the month in which the death of the Executive
occurred, including 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
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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, 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.
Unless such termination occurs within two (2) years following a Change in Control, if the
Executive’s employment shall be terminated by the Company without Cause or by the Executive for
Good Reason, 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 (x) continue to pay the Executive the Base Salary (at the rate in effect on the date of such
termination) for a period of one (1) year beginning from the date of such termination (such one (1)
year period being referred to hereinafter as the “Severance Period”) on the same basis as if
Executive had continued employment during the Severance Period and (y) pay the Executive 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 which incentive
compensation shall be payable at the time incentive compensation is payable generally under the
applicable incentive plans; 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 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, and in all events within thirty (30) days after the
date of termination, pay the Executive the sum of (x) two (2) 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 two (2) 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 two (2)
years, subject to the same payments by the Executive that
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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; (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
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“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 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:
____________________
____________________
____________________
____________________
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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 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 maybe specifically authorized by the Board. No waiver by
either party hereto at anytime 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.
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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.
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 Internal Revenue Code of 1986, as amended (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
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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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
| AGCO CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| EXECUTIVE |
||||
| By: | ||||
| Name: | ||||
| Date: | ||||
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