COMPILED AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.3
COMPILED
AMENDED AND RESTATED
This will
confirm the offer of employment I have made to you on behalf of the Federal
Agricultural Corporation (FAMC), on the following terms and
conditions:
1.
Term. The
Term of this Agreement shall continue until July 1, 2012 or any earlier
effective date of termination pursuant to Paragraph 8 hereof (the “Term”).1
2.
Scope of Authority and
Employment. You will report directly to the President of
Xxxxxx Mac. You will have responsibility for the treasury and
financial activities of Xxxxxx Mac under business plans submitted by management
to, and approved by, the Board of Directors of Xxxxxx Mac. You shall
be an officer of Xxxxxx Mac, with the title of Executive Vice President – Chief
Financial Officer.
You will
devote your best efforts and substantially all your time and endeavor to your
duties hereunder, and you will not engage in any other gainful occupation
without the prior written consent of Xxxxxx Mac; provided, however, that this provision
will not be construed to prevent you from personally, and for your own account
or that of members of your immediate family, investing or trading in real
estate, stocks, bonds, securities, commodities, or other forms of investment, so
long as such investing or trading is not in conflict with the best interests of
Xxxxxx Mac. You will be employed to perform your duties at the
principal office of Xxxxxx Mac. Notwithstanding this, it is expected
that you will be required to travel a reasonable amount of time in the
performance of your duties under this Agreement.2
3. Compensation. FAMC
will pay to you the following aggregate compensation for all services rendered
by you under this Agreement:
(a)
Base
Salary. As of July 1, 2008, you will be paid a
base salary (the Base Salary) during the Term of Three Hundred Seventy-Two
Thousand Thirty Dollars ($372,030) per year, payable in arrears on a bi-weekly
basis; and3
(b)
Incentive
Compensation. In addition to
your Base Salary, you will be paid additional payments during the term of this
Agreement in respect of work performed by you during the preceding Planning Year
(June 1 through May 31), or portion thereof as follows: on June 1 of
each year through and including the effective date of termination, an additional
payment in an amount at the sole discretion of the Board of Directors if it
determines that you have performed in an extraordinary manner your duties,
pursuant to business plans proposed by management and approved by the Board of
Directors, during the preceding Planning Year.4
__________________________
1
Last revised by Amendment No. 20, June 5, 2008.
2
Amendment No. 19, June 7, 2007.
3
Structure of 3(a) revised by Amendment No. 6, June 1,
1995. Compensation amount last revised by Amendment No. 20, June 5,
2008.
4
Structure of 3(b) first revised by Amendment No. 3, June 1, 1993.
Existing structure of 3(b) dates to Amendment No. 7, February 8,
1996.
4.
Expenses. FAMC will
reimburse you for your reasonable and necessary expenses incurred in carrying
out your duties under this Agreement, including, without limitation, expenses
for: travel; attending approved business meetings, conventions and similar
gatherings; and business entertainment. Reimbursement will be made to
you within ten (10) days after presentation to FAMC of an itemized accounting
and documentation of such expenses. You will use your best efforts to
notify the President of FAMC prior to incurring any such expenses of an
extraordinary or unusual nature.
5.
Vacation and Sick
Leave. You will be entitled to four (4) weeks of paid vacation
per year, to be taken in spans not exceeding two (2) weeks each. 5 Vacation
rights will vest on June 10th of each year during the Term, and must be
exercised within fourteen (14) months thereafter or forfeited.6 You will be
entitled to reasonable and customary amounts of sick leave.
6.
Employee
Benefits. FAMC will provide you with all employee benefits
regularly provided to employees of FAMC, and the following other (or upgraded)
benefits: the best level of personal and family health insurance provided by
Blue Cross-Blue Shield; major medical insurance; personal and family dental and
vision insurance; an annual medical examination; business travel and personal
accident insurance; life insurance in the amount of two hundred
fifty thousand dollars ($250,000); disability benefits at least equal
to statutory benefits in the State of New York; a plan to set aside before-tax
income to pay for future unreimbursed medical, dental, vision, and dependent day
care expenses; and a savings plan established under Paragraph 401(k) of the
Internal Revenue Code. The providers of any insurance will be listed
in Best’s Insurance Guide. All of the foregoing is subject to the
limitation that the total cost thereof will not exceed twenty five percent (25%)
of your Base Pay, exclusive of administrative expense. In the event
that such cost limitation would be exceeded in any year, you will select among
the foregoing a group of benefits within that cost limitation.
7.
Relocation
Expenses. It is agreed between the parties that you will be
required to relocate your residence from that stated in the first paragraph of
this Agreement to the Washington, D.C. metropolitan area. FAMC will
assume these expenses as follows:
(a)
Moving Expenses.
FAMC will assume the
reasonable costs of moving your household goods and personal
property. FAMC will pay directly for packing, crating, in-transit
storage, and insurance costs in connection with the move.
(b)
Apartment Location or Home
Purchase. At your option, FAMC will reimburse
your for either (but not both): (i) reasonable and customary fees of a broker
who assists you in locating an apartment in the Washington, D.C. metropolitan
area for which you sign a lease; or (ii) normal and customary closing costs of a
new residence, excluding any fees that are calculated as a percentage of the
price of the new residence, including, without limitation, applicable sales
taxes, mortgage taxes, and document recording fees.
__________________________
5
Amendment No. 1, December 14, 1989.
6
Amendment No. 16, August 3, 2004 removed language added by Amendment No. 10,
June 4, 1998.
(c)
Exploratory Trips. FAMC
will reimburse you for your expenses in making not more than three (3) two-day
exploratory trips from New York to Washington to secure a new residence,
including travel, lodging and meals.
(d)
Temporary Living Expenses. If
you precede the move of your residence to Washington to begin work, FAMC will
reimburse you for reasonable travel between New York and Washington and living
expenses for a period not to exceed ninety (90) days.
(e)
Adjustment for Taxes. To
the extent that any of the foregoing relocation expenses are treated as wages
for federal, state or local income tax purposes, FAMC will “gross up” its
reimbursement to you so that the net amount of reimbursement after tax will
equal the actual amount of the reimbursement required to be paid to
you.
Reimbursement
of any of the foregoing Relocation Expenses incurred directly by you will be
made to you within ten (10) days after presentation to FAMC of an itemized
accounting and documentation of such expenses.
8. Termination.
(a)
Events of Termination. This
Agreement will be terminated and the employment relationship between you and
FAMC will be severed as set forth below:
(i) FAMC
may terminate your employment effective upon notice to you if you die or are
incapacitated or disabled by accident, sickness or otherwise so as to render you
(in the opinion of an independent medical consultant on the full-time faculty of
Georgetown University School of Medicine) mentally or physically incapable of
performing the services required to be performed by you under the terms of this
Agreement for a period of at least sixty (60) consecutive days, or for sixty
(60) days (whether consecutive or not) during any six-month period.
(ii) FAMC
may terminate your employment effective upon notice to you at any time for
“cause.” For the purposes of this subsection, “cause” will mean only: (A) your
willful failure to perform substantially your duties hereunder, other than any
such failure resulting from your incapacity due to physical or mental illness;
or (B) your willful engagement in activities contrary to the best interests of
Xxxxxx Mac. For purposes of this subsection, no act, or failure to
act on your part, shall be considered “willful” unless done, or omitted to be
done, by you not in good faith and without reasonable belief that your action or
omission was in the best interests of Xxxxxx Mac.7
__________________________
7
Amendment Xx. 0, Xxxxxx 0, 0000.
(xxx) Xxxxxx
Mac may terminate your employment without “cause” at any time. Such
termination shall become effective on the earlier of July 1, 2012, or two years
from the date of notice of such termination.8
(iv) Notwithstanding
the provisions of subsection 8(a)(iii) above, FAMC may terminate the employment
of the Employee at any time after the passage by the Board of Directors of FAMC
of a resolution authorizing the dissolution of FAMC. Such termination
of the Employee’s employment shall become effective on the later of eighteen
(18) months after notice of termination or the date that such dissolution of
FAMC becomes final as a matter of law, provided, however, that neither of the
following shall be deemed to be a dissolution for purposes of this
Agreement: (1) dissolution of FAMC which becomes final as a
matter of law more than twelve (12) months after adoption of the resolution of
dissolution; or (2) incorporation, organization or reorganization of a
corporation or other business entity which is substantially similar to FAMC and
which uses substantially the same assets or equity as FAMC, within twelve (12)
months of adoption of the resolution of dissolution. As used herein,
the term “reorganization” shall have the same meaning as in Section 368(a) of
the Internal Revenue Code of 1986.9
(b)
Payment of Accrued Compensation.
(i) Upon
termination of this Agreement pursuant to preceding subsection (a), you (or your
estate or heirs, as the case may be) will be entitled to receive all Base
Salary, annual Bonuses, expense reimbursements, vacation pay, and similar
amounts accrued and unpaid as of the date of such termination. The
obligations of FAMC under this subsection (b) will survive any termination of
this Agreement.
(ii) In
the event of your voluntary termination of employment hereunder, FAMC will not
be obligated to make any further compensation payments to you beyond those
accrued prior to the effective date of such termination.
(c)
Disability Pay. Upon
termination of this Agreement pursuant to preceding subsection (a)(i), FAMC, in
its discretion, will either:
(i) continue
to pay you (or your estate or heirs, as the case may be) for the lesser of
twenty-four (24) months or the10 balance of the Term the
difference between your current Base Salary and the amount of disability
insurance payments received by you under insurance policies provided by FAMC in
accordance with this Agreement; or
__________________________
8 Last
revised by Amendment No. 20, June 5, 2008.
9
Amendment No. 2, February 14, 1991.
10
Amendment No. 2, February 14, 1991.
(ii) pay
you (or your estate or heirs, as the case may be) the present value of the
payments described in preceding subsection (c)(i), discounted at a rate equal to
the yield then available for two-year U.S. Treasury Notes, plus 50 basis points
(0.50%).
(d) Severance
Pay. Upon
termination of this Agreement pursuant to preceding subsection 8(a)(iii), FAMC
will pay you within thirty (30) days after such termination an aggregate amount
in cash equal to one hundred percent (100%) of all Base Salary scheduled to be
paid and not yet paid to you under this Agreement for the balance of the
Term.11
(e) Constructive
Termination. You
may, at your option, deem this Agreement to have been terminated by FAMC in the
event of its breach, including prospective breach, of any term hereof unremedied
for thirty (30) days after notice thereof to FAMC. Upon notice to
FAMC of your exercise of this option, you will have the same rights under such a
constructive termination as if FAMC had terminated your employment pursuant to
preceding subsection (a)(iii).
9. “Pari Passu”
It is
understood that the terms of this Agreement other than Base Salary, but
including Bonus and length of term, will at your option be renegotiated on or
within thirty (30) days after December 31, 1989, retroactively to the date of
this Agreement with a view to placing you in a position as close as possible to
that of other Vice Presidents of FAMC hired before that date and after the date
hereof.
10. Notices. Any
notice given under this Agreement will be sufficient if in writing and
either: (a) mailed postage prepaid by registered or certified mail,
return receipt requested; or (b) delivered by hand to, in the case of Xxxxxx
Mac, 0000 Xxxxxx-Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, attention President
or, in the case of the Employee, 0000 Xxxxxxxxxx Xxxxx, X.X., Xxxxxxxxxx,
XX 00000 (or to such other addresses as may be from time to time
designated by notice from the recipient party to the other). Any such
notice will be effective upon actual receipt or refusal thereof.12
11. Miscellaneous.
(a) Governing
Law. This
Agreement will be governed by, interpreted and enforced in accordance with the
laws of the District of Columbia.
(b) Waiver. The waiver by any party of a breach of any provision
of this Agreement will not operate as a waiver of any other breach of any
provision of this Agreement by any party.
__________________________
11
Amendment No. 7, February 8, 1996.
12
Amendment No. 18, June 1, 2006.
(c) Entire
Agreement. This
Agreement sets forth the entire understanding of the parties concerning the
subject matter hereof, and may not be changed or modified except by a written
instrument duly executed by or on behalf of the parties hereto.
(d) Successors
and Assigns. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective, successors, heirs, personal representatives and
assigns. This subsection is not to be construed to permit you to
assign your obligation to perform the duties of your employment
hereunder. This subsection permits FAMC the right to assign this
Agreement to a successor entity.
(e) Severability. If
any term, condition, or provision of this Agreement or the application thereof
to any party or circumstances will, at any time or to any extent be invalid or
unenforceable, the remainder of this Agreement, or the application of such term,
condition or provision to parties or circumstances other than those to which it
is held invalid or unenforceable, will not be affected thereby, and each term,
condition and provision of their Agreement will be valid and enforceable to the
fullest extent permitted by law.
(f) Action
by FAMC. Except
as expressly provided otherwise in this Agreement, reference to actions,
decisions, determinations or similar occurrences by FAMC (other than the
execution of this Agreement and any modifications hereto or notices given
hereunder) will mean the action, decision or determination of the President or a
majority of the Board of Directors of FAMC.
12. Agreement
Not to Compete with Xxxxxx Mac. Notwithstanding
anything in this Agreement to the contrary, in the event of the termination of
your employment, for a period of two years thereafter, you shall not, without
the prior written consent of Xxxxxx Mac, directly or indirectly, engage in any
business or activity, whether as principal, agent, officer, director, partner,
employee, independent contractor, consultant, stockholder or otherwise, alone or
in association with any other person, firm, corporation or other business
organization, that directly or indirectly competes with any of the businesses of
Xxxxxx Mac in any manner, including without limitation, the acquisition and
securitization (for capital market sale) of agricultural mortgage loans or USDA
“guaranteed portions” (hereinafter referred to as “Xxxxxx Mac Qualified Loans”);
provided, however, that such prohibited activity shall not include the ownership
of up to 20% of the common stock in a public company.13
13. Agreement
Not to Use Confidential or Proprietary Information. Xxxxxx
Mac and you both recognize that you have access to and acquire, and may assist
in developing, confidential and proprietary information relating to the business
and operations of Xxxxxx Mac as a result of your employment or association with
Xxxxxx Mac. You hereby covenant and agree that you will retain all
“Confidential Information” (as defined below) in trust for the sole
benefit of Xxxxxx Mac and its successors and assigns. You hereby
covenant further that, in addition to your fiduciary responsibilities as an
officer not to disclose certain information of or relating to Xxxxxx Mac, you
will not, at any time during or after the term of this Agreement, without the
prior written consent of Xxxxxx Mac, directly or indirectly communicate or
divulge any such Confidential Information to any person, firm, corporation or
other business organization, or use any such Confidential Information for your
own account or for the account of any other person, except as required in
connection with the performance of your services hereunder. The term
“Confidential Information” shall mean any trade secret, data or other
confidential or proprietary information related to the business and activities
of Xxxxxx Mac. Notwithstanding the foregoing, Confidential
Information shall not include any information that is or becomes a part of the
public domain or generally available to the public (unless such availability
occurs as a result of any breach by you of this Section 11), or becomes
available to you on a non-confidential basis from a source (other than Xxxxxx
Mac) that is not bound by a confidentiality agreement and does not breach his or
her fiduciary responsibilities. The provisions of this Section 13
shall survive the termination of this Agreement and the termination of your
employment hereunder.14
__________________________
13
Amendment No. 9, August 7, 1997.
14
Amendment No. 9, August 7, 1997.
14. Agreement
Not to Solicit Xxxxxx Mac Employees. For
a period of two years after the termination of your employment hereunder, you
shall not, directly or indirectly, induce any employee of Xxxxxx Mac who is a
“member of management” (as defined below) or is directly involved in the
acquisition and securitization (for capital market sale) of Xxxxxx Mac Qualified
Loans to engage in any activity in which you are prohibited from engaging in
under this Agreement, or to terminate such person’s employment with Xxxxxx
Mac. You shall not directly or indirectly, either individually or as
owner, agent, employee, consultant or otherwise, employ, offer employment to,
lure, entice away or assist others in recruiting or hiring any person who is or
was employed by Xxxxxx Mac unless such person shall have ceased to be employed
by Xxxxxx Mac for a period of at least six months and is not subject to any
non-compete covenants substantially similar in nature to those contained in
Section 12 hereof. “Member of management” means the President, any
Senior Vice President, Vice President or the Controller of Xxxxxx Mac.15
Please
signify your acceptance of the foregoing terms of employment by signing and
returning to me the copy of this letter enclosed for the
purpose.
-
END -
__________________________
15 Amendment Xx. 0, Xxxxxx 0, 0000.
15 Amendment Xx. 0, Xxxxxx 0, 0000.
