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EXHIBIT 10.11
EMPLOYMENT AND SEVERANCE AGREEMENT
This Employment and Severance Agreement (the "Agreement") entered into
this 1st day of September 1999 by and between AGCO CORPORATION, a Delaware
corporation (the "Company"), and Xxxxx X. Xxxxx (the "Executive"),
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 on the terms and conditions set forth herein.
(b) The employment term shall commence on September 1, 1999
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 an Executive Officer of the
Company and shall perform such duties and responsibilities as may from time to
time be prescribed by the Company's board of directors (the "Board"), provided
that such duties and responsibilities are consistent with the Executive's
position. The Executive shall perform and discharge faithfully, diligently and
to the best of his/her ability such duties and responsibilities and shall devote
all of his/her working time and efforts to the business and affairs of the
Company and its affiliates.
3. COMPENSATION.
(a) BASE SALARY. The Company shall pay to the Executive an
annual base salary ("Base Salary") of Two Hundred Twenty Thousand, One Hundred
Sixty-Four Dollars ($220,164), payable in equal semi-monthly installments
throughout the term of such employment 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.
(b) INCENTIVE COMPENSATION. Provided Executive has duly
performed his/her obligations pursuant to this Agreement, the Executive shall be
entitled to participate in or receive benefits under the Management Incentive
Compensation Plan implemented by the Company.
(c) OTHER BENEFITS. During the term of this Agreement, the
Executive shall be entitled to participate in the long term incentive plan
implemented by the Company and any employee benefit plans and arrangements which
are available to senior executive officers of the Company, including, without
limitation, group health and life insurance, pension and savings and the Senior
Management Employment Policy.
(d) FRINGE BENEFITS. The Company shall pay or reimburse
Executive for all reasonable and necessary expenses incurred by him/her in
connection with his/her duties hereunder, upon submission by Executive to the
Company of such written evidence of such expense as the Company may require.
Throughout the term of this Agreement, the Company will provide Executive with
the use of a vehicle for purposes within the scope of his/her employment and
shall pay all expenses for fuel, maintenance and insurance in connection with
such use of the automobile. The Company further agrees that Executive shall be
entitled to four (4) weeks of vacation in any year of the term of employment
hereunder. Nothing paid to the
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Executive under any such Company plans or arrangements shall be deemed to be in
lieu of compensation to the Executive hereunder.
4. NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION COVENANTS.
(a) ACKNOWLEDGEMENTS. The Executive acknowledges that as an
Executive Officer of the Company (i) he/she frequently will be exposed to
certain "Trade Secrets" and "Confidential Information" of the Company (as those
terms are defined in Subsection 4(b)), (ii) his/her 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/her part during the term of
his employment and for a reasonable period thereafter would necessarily involve
his/her 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/her employment with
the Company, he/she would have sufficient skills to find alternative,
commensurate work in his/her 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/her
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. For purposes of this Section 4, the following
terms shall have the following meanings:
(i) "COMPETITIVE POSITION" shall mean (i) the Executive's
direct or indirect equity ownership (excluding equity ownership of less than one
percent (1%) or control of all or any portion of a Competitor, or (ii) any
employment, consulting, partnership, advisory, directorship, agency, promotional
or independent contractor arrangement between the Executive and any Competitor
whereby the Executive is required to perform executive level services
substantially similar to those that he will perform for the Company as an
Executive Officer.
(ii) "COMPETITOR" of the Company shall refer to any person or
entity engaged, wholly or partly, in the business of manufacturing and
distributing farm equipment machinery and replacement parts.
(iii) "CONFIDENTIAL INFORMATION" shall mean the proprietary
and confidential data or information of the Company, other than "Trade Secrets"
(as defined below), which is of tangible or intangible value to the Company and
is not public information or is not generally known or available to the
Company's competitors.
(iv) "TRADE SECRETS" shall mean information of the Company,
including, but not limited to, technical or non-technical data, formulas,
patterns, compilations, programs, devices, methods, techniques, drawings,
processes, financial data, financial plans, products plans, or lists of actual
or potential customers or suppliers, which: (a) derives economic value, actual
or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use; and (b) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.
(v) "WORK PRODUCT" shall mean all work product, property,
data, documentation, "know-how", concepts or plans, inventions, improvements,
techniques, processes or information of any kind, relating to the Company and
its business prepared, conceived, discovered, developed or created by the
Executive for the Company or any of the Company's customers.
(c) NONDISCLOSURE; OWNERSHIP OF PROPRIETARY PROPERTY.
(i) The Executive hereby covenants and agrees that: (i) with
regard to information constituting a Trade Secret, at all times during the
Executive's employment with the Company and all times thereafter during which
such information continues to constitute a Trade Secret; and (ii) with regard to
any Confidential Information, at all times during the Executive's employment
with the Company and for three (3) years after the termination of the
Executive's employment with the Company, the Executive shall regard and treat
all information constituting a Trade Secret or Confidential Information as
strictly confidential and wholly owned by the Company and will not, for any
reason in any fashion, either directly or
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indirectly, use, sell, lend, lease, distribute, license, give, transfer, assign,
show, disclose, disseminate, reproduce, copy, appropriate or otherwise
communicate any such information to any party for any purpose other than
strictly in accordance with the express terms of this Agreement and other than
as may be required by law.
(ii) To the greatest extent possible, any Work Product shall
be deemed to be "work made for hire" (as defined in the Copyright Act, 17
U.S.C.A. ss. 101 et seq., as amended) and owned exclusively by the Company. The
Executive hereby unconditionally and irrevocably transfers and assigns to the
Company all rights, title and interest the Executive may currently have or in
the future may have by operation of law or otherwise in or to any Work Product,
including, without limitation, all patents, copyrights, trademarks, service
marks and other intellectual property rights. The Executive agrees to execute
and deliver to the Company any transfers, assignments, documents or other
instruments which the Company may deem necessary or appropriate to vest complete
title and ownership of any Work Product, and all rights therein, exclusively in
the Company.
(iii) The Executive shall immediately notify the Company of
any intended or unintended, unauthorized disclosure or use of any Trade Secrets
or Confidential Information by the Executive or any other person of which the
Executive becomes aware. In addition to complying with the provisions of Section
4(c) (i) and 4 (c) (ii), the Executive shall exercise his best efforts to assist
the Company, to the extent the Company deems reasonably necessary, in the
procurement of any protection of the Company's rights to or in any of the Trade
Secrets or Confidential Information.
(iv) Immediately upon termination of the Executive's
employment with the Company, or at any point prior to or after that time upon
the specific request of the Company, the Executive shall return to the Company
all written or descriptive materials of any kind in the Executive's possession
or to which the Executive has access that constitute or contain any Confidential
Information or Trade Secrets, and the confidentiality obligations of this
Agreement shall continue until their expiration under the terms of this
Agreement.
(d) NON-COMPETITION. The Executive agrees that during his/her
employment, he/she will not, either directly or indirectly, alone or in
conjunction with any other party, (i) accept or enter into a Competitive
Position with a Competitor of the Company, or (ii) take any action in
furtherance of or in conjunction with a Competitive Position with a Competitor
of the Company. The Executive agrees that for two (2) years after any
termination of his employment with the Company, he/she will not, in the
"Restricted Territory" (as defined in the next sentence), either directly or
indirectly, alone or in conjunction with any other party, (A) accept or enter
into a Competitive Position with a Competitor of the Company, or (B) take any
action in furtherance of or in conjunction with a Competitive Position with a
Competitor of the Company. For purposes of this Section 4, "Restricted
Territory" shall refer to all geographical areas comprised within the fifty
United States of America, Western Europe, Brazil and Canada. The Executive and
the Company each acknowledge that the scope of the Restricted Territory is
reasonable because (1) the Company is conducting substantial business in all
fifty states (as well as several foreign countries), (2) the Executive occupies
one of the top executive positions with the Company, and (3) the Executive will
be carrying out his employment responsibilities in all locations where the
Company is doing business.
(e) NON-SOLICITATION OF CUSTOMERS. The Executive agrees that
during the term of his/her employment, he/she will not, either directly or
indirectly, along or in conjunction with any other party, solicit, divert or
appropriate or attempt to solicit, divert or appropriate any customer or
actively sought prospective customer of the Company for or on behalf of any
Competitor of the Company. The Executive agrees that for two (2) years after any
termination of his employment with the Company, he/she will not, in the
Restricted Territory, either directly or indirectly, alone or in conjunction
with any other party, for or on behalf of a Competitor of the Company, solicit,
divert or appropriate or attempt to solicit, divert or appropriate any customer
or actively sought prospective customer of the Company with whom he had
substantial contact during a period of time of up to, but no longer than,
eighteen (18) months prior to any termination of his/her employment with the
Company.
(f) NON-SOLICITATION OF COMPANY PERSONNEL. The Executive
agrees that, except to the extent that he/she is required to do so in connection
with his/her express employment responsibilities on behalf of the Company,
during the term of his/her employment he/she will not, either directly or
indirectly, alone or in conjunction with any other party, solicit or attempt to
solicit any employee, consultant, contractor or other personnel of the Company
to terminate, alter or lessen that party's affiliation with the Company or to
violate the terms of any agreement or understanding between such employee,
consultant, contractor or other person and the Company. The Executive agrees
that for two (2) years after any termination of
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his/her employment with the Company, and in the Restricted Territory, he/she
will not, either directly or indirectly, alone or in conjunction with any other
party, solicit or attempt to solicit any "material" or "key" (as those terms are
defined in the next sentence) employee, consultant, contractor or other
personnel of the Company to terminate, alter or lessen that party's affiliation
with the Company or to violate the terms of any agreement or understanding
between such employee, consultant, contractor or other person and the Company.
For purposes of the preceding sentence, "material" or "key" employees,
consultants, contractors or other personnel of the Company are those who have
access to the Company's Trade Secrets and Confidential Information and whose
position or affiliation with the Company is significant.
(g) REMEDIES. Executive agrees that damages at law for the
Executive's violation of any of the covenants in this Section 4 would not be an
adequate or proper remedy and that should the Executive violate or threaten to
violate any of the provisions of such covenants, the Company or its successors
or assigns shall be entitled to obtain a temporary or permanent injunction
against Executive in any court having jurisdiction prohibiting any further
violation of any such covenants, in addition to any award or damages,
compensatory, exemplary or otherwise, for such violation, if any.
(h) PARTIAL ENFORCEMENT. The Company has attempted to limit
the rights of the Executive to compete only to the extent necessary to protect
the Company from unfair competition. The Company, however, agrees that, if the
scope of enforceability of these restrictive covenants is in any way disputed at
any time, a court or other trier of fact may modify and enforce the covenant to
the extent that it believes to be reasonable under the circumstances existing at
the time.
5. TERMINATION.
(a) DEATH. The Executive's employment hereunder shall
terminate upon the death of the Executive, provided, however, that for purposes
of the payment of compensation and benefits to the Executive under this
Agreement 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) INCAPACITY. The Company may terminate the Executive's
employment hereunder at the end of any calendar month by giving written Notice
of Termination to the Executive in the event of the Executive's incapacity due
to physical or mental illness which prevents the proper performance of the
duties of the Executive set forth herein or established pursuant hereto for a
substantial portion of any six (6) month period of the Executive's term of
employment hereunder. Any question as to the existence, extent or potentiality
of illness or incapacity of Executive upon which Company and Executive cannot
agree shall be determined by a qualified independent physician selected by the
Company and approved by Executive (or, if Executive is unable to give such
approval, by any adult member of the immediate family or the duly appointed
guardian of the Executive). The determination of such physician shall be
certified in writing to the Company and to the Executive and shall be final and
conclusive for all purposes of this Agreement.
(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 Executive's
habitual drunkenness or chronic substance abuse; (ii) a willful failure by the
Executive to materially perform and discharge the duties and responsibilities of
the Executive hereunder; (iii) any breach by the Executive of the provisions of
Section 4 hereof; (iv) any misconduct by the Executive that is materially
injurious to the Company; or (v) a conviction of a felony involving the personal
dishonesty or moral turpitude of the Executive.
(d) WITHOUT CAUSE; GOOD REASON.
(i) The Company may terminate the Executive's employment
hereunder without Cause, by giving written Notice of termination 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 (and without the written consent of the Executive) (a) a
reduction in the Executive's base salary or benefits received from the Company,
other than in connection with an across-the-board reduction in salaries and/or
benefits for
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similarly situated employees of the Company or pursuant to the Company's
standard retirement policy; or (b) the relocation of the Executive's full-time
office to a location greater than fifty (50) miles from the Company's current
corporate office; or (c) a material breach by the Company of this Agreement.
(e) NOTICE OF TERMINATION. Any termination by the Company
pursuant to the Subsections (b), (c) or (d)(i) above or by the Executive
pursuant to Subsection (d)(ii) above, shall be communicated by written Notice of
Termination from the party issuing such notice to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision of this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for such termination. A date of termination specified in the
Notice of Termination shall not be dated earlier than ninety (90) days from the
date such Notice is delivered or mailed to the applicable party.
(f) OBLIGATION TO PAY. Except upon voluntary termination by
the Executive without Good Reason and subject to Section 6 below, the Company
shall pay the compensation specified in this Subsection 5(f) to the Executive
for the period specified in this Subsection 5(f). The Company also will continue
insurance benefits during the remainder of the applicable period, including the
Severance Period set forth in this Subsection 5(f). If the Executive's
employment shall be terminated by reason of death, the estate of the Executive
shall be paid all sums otherwise payable to the Executive through the end of the
third month after the month in which the death of the Executive occurred and 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 and the
Company shall have no further obligations to the Executive under this Agreement.
If the Executive's employment is terminated by reason of incapacity, the
Executive or the person charged with legal responsibility for the Executive's
estate shall be paid all sums 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
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 the Company shall have no further obligations to the
Executive under this Agreement. If the Executive's employment shall be
terminated by the Company, without cause, or by the Executive for Good Reason,
the Company shall (x) continue to pay the Executive the Base Salary (at the rate
in effect on the date of such termination) for a period of two (2) years
beginning as of the date of such termination (such two (2) year period being
referred to hereinafter as the "Severance Period") at such intervals as the same
would have been paid had the Executive remained in the active service of the
Company, 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. 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
the employee benefit plans or programs of the Company or under applicable law.
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, 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:
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in the case of the Company to:
AGCO Corporation
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: X. X. Xxxxxxx
in the case of the Executive to:
----
----
----
----
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:
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9. NO WAIVER. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is approved by the
Board and agreed to in a writing signed by the Executive and such officer as may
be specifically authorized by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of any other provisions or conditions of this Agreement
at the same or at any prior or subsequent time.
10. SUCCESSORS AND ASSIGNS. The rights and obligations of the Company
under this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the Company and the Executive's rights under this
Agreement
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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,
distributee, 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
AGCO CORPORATION
By:
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Name:
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Title:
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EXECUTIVE OFFICER
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