EXHIBIT 10
[For 2 Board officers]
DIRECTOR DEFERRED PAYMENT AGREEMENT
AGREEMENT made this day of , 1999, between AGWAY
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INC., a Delaware corporation, with its principal office in De Xxxx, New York
(hereinafter called "AGWAY"), and residing at
---------------------
(hereinafter called
----------------------------------------------------------
"Director").
RECITALS:
A. AGWAY has established a deferred payment program for Directors.
B. Director desires to participate in the program upon the
following terms and conditions.
WITNESSETH:
For good and valuable consideration, the parties, intending to be
legally bound, hereby agree as follows:
1. Director hereby designates % (or $ ) of annual
---- ---------
retainer for the period beginning January 1, 2000 and ending December 31, 2000
be credited to Director's Reserve Account.
2. AGWAY shall maintain in its accounting records a separate account
(herein called "Director's Reserve Account") for each Director electing deferral
of any amount under this agreement and shall credit to the Director's Reserve
Account the amount designated by Director in Section 1 above. The Director's
Reserve Account shall also be credited at the close of each calendar quarter
with an amount computed by applying the average cost-of-debt percentage as
-1-
hereinafter defined to the total average accumulated credit of the Director's
Reserve Account. "Average cost-of-debt" as used in this agreement shall mean the
average cost to AGWAY of the debt employed by AGWAY during each calendar quarter
in the conduct of AGWAY's business, and this average cost-of- debt shall be
determined by the Treasurer of AGWAY.
3. AGWAY and Director hereby agree that payment from the Director's
Reserve Account shall begin on the first January 1 or July 1 that follows the 15
month anniversary of the Director's attainment of age fifty-five (55) or the
date on which Director's service as Director of AGWAY terminates, whichever is
earlier.
This agreement by the Director shall be irrevocable; provided, however, that at
least twelve (12) months prior to January 1 or July 1 described above, the
Director may request, by notice in writing to Agway, that the commencement of
payments be deferred to a specified January 1 or July 1 date later than that on
which commencement was previously scheduled. Whether to approve such a request
shall be within the discretion of the Chief Financial Officer of AGWAY, or
his/her designee. Approval of such a request shall be in writing. After
approval, Director shall have no right to payment at any date earlier than that
specified in the written approval. In any event, payments shall commence not
later than the January following the calendar year when Director reaches age
seventy (70). AGWAY may impose a thirty (30) day waiting period before the first
payment is made.
4. Payment will be either (a) a lump sum payment of the entire
balance in the Director's Reserve Account; or (b) in an amount determined by
multiplying the balance in the Director's Reserve Account at the beginning of
each calendar year during which a payment is to be made by a fraction, the
numerator of which is one (1) and the denominator of which will be the number of
years remaining
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during which the Director's Reserve Account will be paid to Director. The
payment election must be made at least twelve (12) months prior to the
commencement of payment in writing to the chief financial officer of AGWAY, or
his/her designee, to have the payments made:
(A) over 3 years;
(B) over 5 years;
(C) over 10 years;
(D) over 15 years; or
(E) over 20 years.
If a timely election is not made, the entire balance in Director's Reserve
Account will be paid in a single lump sum.
If the initial annual payment computed for the applicable payment period
described above would be less than ten thousand dollars ($10,000), then,
notwithstanding the prior provisions of this Section, AGWAY may make payment (at
the sole discretion of AGWAY) either in one (1) lump sum or in annual
installments over the longest period resulting in an initial annual payment of
at least ten thousand dollars ($10,000).
5. Upon furnishing AGWAY with proper evidence of financial hardship,
Director may request a withdrawal of all or part of the balance in the
Director's Reserve Account. Whether to approve such a request shall be within
the discretion of the Chief Financial Officer of AGWAY, or his/her designee.
Approval of such a request shall be in writing.
6. In the event of Director's death, either before or after the
payments to Director have begun, the amount payable, as provided in Section 4
above, shall be paid to the beneficiary or beneficiaries designated by Director
in the most
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recent notice in writing to AGWAY in installments computed in the same manner as
if Director was still living. If no beneficiary has been designated, the amount
payable, as provided in Section 4 above, shall be paid in installments computed
in the same manner as if Director was still living to Director's estate or, at
the sole discretion of AGWAY, the remaining balance in the Director's Reserve
Account may be paid in a lump sum to Director's estate. In the event that after
payments have commenced to the beneficiary or to the beneficiaries designated by
Director the sole beneficiary dies or all beneficiaries die, then, any remaining
balance in the Director's Reserve Account will be paid in a lump sum to the sole
beneficiary's estate or to the beneficiaries' estates. In the absence of clear
written instructions to the contrary, a designation of multiple beneficiaries
will be deemed to provide for payment to the designated beneficiaries in equal
shares, and for the payment to Director's estate of the share of any beneficiary
who predeceases Director. In the event of Director's death before the payments
to Director have begun, the payments will commence on the January 1 or July 1,
next following the date of Director's death.
7. Director agrees that AGWAY's liability to make any payment as
provided in this agreement shall be contingent upon Director's:
(a) being available to AGWAY for consultation and advice after
termination of service as a director of AGWAY, unless Director is disabled or
deceased; and
(b) retaining unencumbered any interest or benefit under this
agreement.
-4-
If Director fails to fulfill any one or more of these contingencies,
AGWAY's obligation under this agreement may be terminated by AGWAY as to
Director.
8. Director also agrees that AGWAY's obligations to make deferred
payments under this agreement are merely contractual; and that AGWAY is the
outright beneficial owner of, and does not hold for Director as trustee or
otherwise, the amounts credited to Director's Reserve Account; and that such
amounts are subject to the rights of AGWAY's creditors in the same manner and to
the same extent as all assets owned by AGWAY.
9. Neither Director nor Director's beneficiary/ies shall have the
right to encumber, commute, borrow against, dispose of or assign the right to
receive payments under this agreement.
IN WITNESS WHEREOF, AGWAY and Director have duly executed this
agreement the day and year first above written.
AGWAY INC.
By: /s/
-----------------------
Secretary
/s/
-----------------------
(Director)
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* * * * * * * *
DESIGNATION OF BENEFICIARY/IES
Pursuant to the provisions of this Deferred Payment Agreement, I hereby
designate as my beneficiary/ies hereunder:
--------------------------------------------------------------------------------
(Name of beneficiary/ies)
This designation is also effective with respect to any and all amounts of
deferred compensation accrued for my benefit under any and all Deferred Payment
Agreements executed by me in previous years.
/s/
-----------------------------------
(Director)
Date: , 1999
-------------
-6-
[For 13 Directors]
DIRECTOR DEFERRED PAYMENT AGREEMENT
AGREEMENT made this day of , 1999, between AGWAY
----- -------------
INC., a Delaware corporation, with its principal office in De Xxxx, New York
(hereinafter called "AGWAY"), and residing at
----------------------------------
--------------------------------------------------------------------------------
(hereinafter called "Director").
RECITALS:
A. AGWAY has established a deferred payment program for Directors.
B. Director desires to participate in the program upon the
following terms and conditions.
WITNESSETH:
For good and valuable consideration, the parties, intending to be
legally bound, hereby agree as follows:
1. Director hereby designates (check one)
% of retainer (or $ of retainer) only
--- --- -----------
% of per diem and all other payments other than
--- ---
expense reimbursements (or $ of per diem and all
----------
other payments other than expense reimbursements) only
% of both retainer and per diem and all other
--- ----
payments other than expense reimbursements (or $ of
---------
both retainer and per diem)
-1-
for the period beginning January 1, 2000 and ending December 31, 2000 be
credited to Director's Reserve Account.
2. AGWAY shall maintain in its accounting records a separate account
(herein called "Director's Reserve Account") for each Director electing deferral
of any amount under this agreement and shall credit to the Director's Reserve
Account the item or items designated by Director in Section 1 above. The
Director's Reserve Account shall also be credited at the close of each calendar
quarter with an amount computed by applying the average cost-of-debt percentage
as hereinafter defined to the total average accumulated credit of the Director's
Reserve Account. "Average cost-of-debt" as used in this agreement shall mean the
average cost to AGWAY of the debt employed by AGWAY during each calendar quarter
in the conduct of AGWAY's business, and this average cost-of- debt shall be
determined by the Treasurer of AGWAY.
3. AGWAY and Director hereby agree that payment from the Director's
Reserve Account shall begin on the first January 1 or July 1 that follows the 15
month anniversary of the Director's attainment of age fifty-five (55) or the
date on which Director's service as Director of AGWAY terminates, whichever is
earlier.
This agreement by the Director shall be irrevocable; provided, however, that at
least twelve (12) months prior to January 1 or July 1 described above, the
Director may request, by notice in writing to Agway, that the commencement of
payments be deferred to a specified January 1 or July 1 date later than that on
which commencement was previously scheduled. Whether to approve such a request
shall be within the discretion of the Chief Financial Officer of AGWAY, or
his/her designee. Approval of such a request shall be in writing. After
approval, Director shall have no right to payment at any date earlier than that
specified in the written approval. In any event, payments shall commence not
later than the
-2-
January following the calendar year when Director reaches age seventy (70).
AGWAY may impose a thirty (30) day waiting period before the first payment is
made.
4. Payment will be either (a) a lump sum payment of the entire
balance in the Director's Reserve Account; or (b) in an amount determined by
multiplying the balance in the Director's Reserve Account at the beginning of
each calendar year during which a payment is to be made by a fraction, the
numerator of which is one (1) and the denominator of which will be the number of
years remaining during which the Director's Reserve Account will be paid to
Director. The payment election must be made at least twelve (12) months prior to
the commencement of payment in writing to the chief financial officer of AGWAY,
or his/her designee, to have the payments made:
(A) over 3 years;
(B) over 5 years;
(C) over 10 years;
(D) over 15 years; or
(E) over 20 years.
If a timely election is not made, the entire balance in Director's Reserve
Account will be paid in a single lump sum.
If the initial annual payment computed for the applicable payment period
described above would be less than ten thousand dollars ($10,000), then,
notwithstanding the prior provisions of this Section, AGWAY may make payment (at
the sole discretion of AGWAY) either in one (1) lump sum or in annual
installments over the longest period resulting in an initial annual payment of
at least ten thousand dollars ($10,000).
-3-
5. Upon furnishing AGWAY with proper evidence of financial hardship,
Director may request a withdrawal of all or part of the balance in the
Director's Reserve Account. Whether to approve such a request shall be within
the discretion of the Chief Financial Officer of AGWAY, or his/her designee.
Approval of such a request shall be in writing.
6. In the event of Director's death, either before or after the
payments to Director have begun, the amount payable, as provided in Section 4
above, shall be paid to the beneficiary or beneficiaries designated by Director
in the most recent notice in writing to AGWAY in installments computed in the
same manner as if Director was still living. If no beneficiary has been
designated, the amount payable, as provided in Section 4 above, shall be paid in
installments computed in the same manner as if Director was still living to
Director's estate or, at the sole discretion of AGWAY, the remaining balance in
the Director's Reserve Account may be paid in a lump sum to Director's estate.
In the event that after payments have commenced to the beneficiary or to the
beneficiaries designated by Director the sole beneficiary dies or all
beneficiaries die, then, any remaining balance in the Director's Reserve Account
will be paid in a lump sum to the sole beneficiary's estate or to the
beneficiaries' estates. In the absence of clear written instructions to the
contrary, a designation of multiple beneficiaries will be deemed to provide for
payment to the designated beneficiaries in equal shares, and for the payment to
Director's estate of the share of any beneficiary who predeceases Director. In
the event of Director's death before the payments to Director have begun, the
payments will commence on the January 1 or July 1, next following the date of
Director's death.
7. Director agrees that AGWAY's liability to make any payment as
provided in this agreement shall be contingent upon Director's:
-4-
(a) being available to AGWAY for consultation and advice after
termination of service as a director of AGWAY, unless Director is disabled or
deceased; and
(b) retaining unencumbered any interest or benefit under this
agreement.
If Director fails to fulfill any one or more of these
contingencies, AGWAY's obligation under this agreement may be terminated by
AGWAY as to Director.
8. Director also agrees that AGWAY's obligations to make deferred
payments under this agreement are merely contractual; and that AGWAY is the
outright beneficial owner of, and does not hold for Director as trustee or
otherwise, the amounts credited to Director's Reserve Account; and that such
amounts are subject to the rights of AGWAY's creditors in the same manner and to
the same extent as all assets owned by AGWAY.
9. Neither Director nor Director's beneficiary/ies shall have the
right to encumber, commute, borrow against, dispose of or assign the right to
receive payments under this agreement.
IN WITNESS WHEREOF, AGWAY and Director have duly executed this
agreement the day and year first above written.
AGWAY INC.
By: /s/
-----------------------
Secretary
/s/
-----------------------
(Director)
-5-
* * * * * * * *
DESIGNATION OF BENEFICIARY/IES
Pursuant to the provisions of this Deferred Payment Agreement, I hereby
designate as my beneficiary/ies hereunder:
--------------------------------------------------------------------------------
(Name of beneficiary/ies)
This designation is also effective with respect to any and all amounts of
deferred compensation accrued for my benefit under any and all Deferred Payment
Agreements executed by me in previous years.
/s/
------------------------------
(Director)
Date: , 1999
---------------
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