EXHIBIT 10.18
EMPLOYMENT AGREEMENT
THIS AGREEMENT between IMC Global Inc., a Delaware corporation (the
"Company"), and -------------------("Executive"), is made as of the 1st
day of September, 1995, to become effective as provided below; and
WITNESSETH THAT:
A. The Company wishes to attract and retain well-qualified executive
and key personnel and to assure itself of the continuity of its
management.
B. Executive is an officer or other key executive of the Company with
significant management responsibilities in the conduct of its business.
C. The Company recognizes that Executive is a valuable resource of
the Company and the Company desires to be assured of the continued
services of Executive.
D. The Company is concerned that in the event of a possible or
threatened change in control of the Company, uncertainties necessarily
arise and Executive may have concerns about the continuation of his
employment status and responsibilities and may be approached by others
offering competing employment opportunities, and the Company therefore
desires to provide Executive assurance as to the continuation of his
employment status and responsibilities in such event.
E. The Company further desires to assure that, if a possible or
threatened change in control should arise and Executive should be
involved in deliberations or negotiations in connection therewith,
Executive would be in a secure position to consider and participate in
such transaction as objectively as possible in the best interests of
the Company and to this end desires to protect Executive from any
direct or implied threat to his financial well being.
F. Executive is willing to continue to serve as such but desires
assurance that in the event of such a change in control he will
continue to have the employment status and responsibilities he could
reasonably expect absent such event and that in the event this turns
out not to be the case he will have fair and reasonable severance
protection on the basis of his service to the Company to that time.
NOW, THEREFORE, it is hereby agreed by and between the parties as
follows:
1. Operation of Agreement. The "effective date of this Agreement"
shall be the date on which a change in control of the Company (as
described in Section 2) occurs. This Agreement shall not become
effective, and the Company shall have no obligation hereunder, if the
employment of Executive with the Company shall terminate prior to a
change in control of the Company. Executive shall have no right on
account of this Agreement to be retained in the employ of the Company
or to be retained in any particular position in the Company, unless and
until a change in control has occurred.
2. Change in Control. The term "Change in Control" shall mean,
and be deemed to have occured as of the first day that any one or more
of the following conditions have been satisfied.
(a) the acquisition by any individual, entity or group (a
"Person"), including any "person" within the meaning of Section 13
(d)(3) or 14(d)(2) of the Exchange Act, of beneficial ownership
within the meaning of Rule 13d-3 promulgated under the Exchange
Act, of 15% or more of either (i) the then outstanding shares of
common stock of the Company (the "Outstanding Company Common
Stock") or, (ii) the combined voting power of the then outstanding
securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting
Securities"); excluding, however, the following: (A) any
acquisition directly from the Company (excluding any acquisition
resulting from the exercise of an exercise, conversion or exchange
privilege unless the security being so exercised, converted or
exchanged was acquired directly from the Company); (B) any
acquisition by the Company, (C) any acquisition by an employee
benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company or (D) any
acquisition by any corporation pursuant to a transaction which
complies with clauses (i), (ii) and (iii) of subsection (3) of
this definition;
(b) individuals who, as of the date hereof, constitute the
Board of Directors (the "Incumbent Board") cease for any reason to
constitute at least a majority of such Board; provided that any
individual who becomes a director of the Company subsequent to the
date hereof whose election, or nomination for election by the
Company's stockholders, was approved by the vote of at least a
majority of the directors then comprising the Incumbent Board
shall be deemed a member of the Incumbent Board; and provided
further, that any individual who was initially elected as a
director of the Company as a result of an actual or threatened
election contest,
as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act, or any other actual or
threatened solicitation of proxies or consents by or on behalf of
any Person other than the Board shall not be deemed a member of
the Incumbent Board;
(c) approval by the stockholders of the Company of a
reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the
Company (a "Corporate Transaction"); excluding, however, a
Corporate Transaction pursuant to which (i) all or substantially
all of the individuals or entities who are the beneficial owners,
respectively, of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities immediately prior to such
Corporate Transaction will beneficially own, directly or
indirectly, more than 60% of, respectively, the outstanding shares
of common stock, and the combined voting power of the outstanding
securities of such corporation entitled to vote generally in the
election of directors, as the case may be, of the corporation
resulting from such Corporate Transaction (including, without
limitation, a corporation which as a result of such transaction
owns the Company or all or substantially all of the Company's
assets either directly or indirectly) in substantially the same
proportions relative to each other as their ownership, immediately
prior to such Corporate Transaction, of the Outstanding Company
Common Stock and the Outstanding Company Voting Securities, as the
case may be, (ii) no Person (other than: the Company; the
corporation resulting from such Corporate Transaction; and any
Person which beneficially owned, immediately prior to such
Corporate Transaction, directly or indirectly, 25% or more of the
Outstanding Company Common Stock of the corporation resulting from
such Corporate Transaction or the combined voting power of the
outstanding securities of such corporation entitled to vote
generally in the election of directors, and (iii) individuals who
were members of the Incumbent Board will constitute at least a
majority of the members of the Board of Directors of the
corporation resulting from such Corporate Transaction; or
(d) approval by the stockholders of the Company of a plan of
complete liquidation or dissolution of the Company.
3. Employment. The Company hereby agrees to continue the
Executive in its employ, and the Executive hereby agrees to remain in
the employ of the Company, for the period commencing on the effective
date of this Agreement and ending on the earlier to occur of (a) the
last day of the month in which occurs the third anniversary of the
effective date of this Agreement or (b) the last day of the month in
which the Executive attains mandatory retirement age pursuant to the
terms of a mandatory retirement plan of the Company as such were in
effect and applicable to the Executive immediately prior to the
effective date of this Agreement (the "Employment Period"). During the
Employment Period, Executive shall exercise such position and authority
and perform such responsibilities as are commensurate with the position
and authority being exercised and duties being performed by the
Executive immediately prior to the effective date of this Agreement,
which services shall be performed at the location where the Executive
was employed immediately prior to the effective date of this Agreement
or at such other location as the Company may reasonably require;
provided that the Executive shall not be required to accept any such
other location that he deems unreasonable in the light of his personal
circumstances.
4. Compensation and Benefits. During the Employment Period, the
Executive shall receive the following compensation and benefits:
(a) He shall receive an annual base salary which is not less
than his annual base salary immediately prior to the effective
date of this Agreement, with the opportunity for increases, from
time to time thereafter which are in accordance with the
Company's regular executive compensation practices.
(b) He shall be eligible to participate on a reasonable basis,
and to continue his existing participation, in annual incentive,
stock option, restricted stock, long-term incentive performance,
and any other incentive compensation plan which provides
opportunities to receive compensation in addition to his annual
base salary which are the greater of (i) the opportunities
provided by the Company for executives with comparable duties or
(ii) the opportunities under any such plans in which he was
participating immediately prior to the effective date of this
Agreement.
(c) He shall be entitled to receive and participate in
salaried employee benefits (including, but not limited to, medical,
life and accident insurance, investment, stock ownership, and
disability benefits) and perquisites which are the greater of (i)
the employee benefits and perquisites provided by the Company to
executives with comparable duties or (ii) the employee benefits and
perquisites to which he was entitled or in which he participated
immediately prior to the effective date of this Agreement.
(d) He shall be entitled to continue to accrue credited service
for retirement benefits and to be entitled to receive retirement
benefits under and pursuant to the terms of the Company's
qualified retirement plan for salaried employees, the Company's
supplemental executive retirement plan, and any successor or
other retirement plan or agreement in effect on the effective
date of this Agreement in respect of his retirement, whether or
not a qualified plan or agreement, so that his aggregate monthly
retirement benefit from all such plans and agreements (regardless
when he begins to receive such benefit) will be not less than it
would be had all such plans and agreements in effect immediately
prior to the effective date of this Agreement continued to be in
effect without change until and after he begins to receive such
benefit.
5. Termination. The term "Termination" shall mean termination,
prior to the expiration of the Employment Period, of the employment of
the Executive with the Company for any reason other than death,
disability (as described below), cause (as described below), or
voluntary resignation (as described below).
(a) The term "disability" means physical or mental incapacity
qualifying the Executive for long-term disability under the
Company's long-term disability plan.
(b) The term "cause" means (i) the willful and continued
failure of the Executive substantially to perform his duties with
the Company (other than any failure due to physical or mental
incapacity) after a demand for substantial performance is delivered
to him by the Board of Directors which specifically identifies the
manner in which the Board believes he has not substantially
performed his duties or (ii) willful misconduct materially and
demonstrably injurious to the Company. No act or failure to act by
the Executive shall be considered "willful" unless done or omitted
to be done by him not in good faith and without reasonable belief
that his action or omission was in the best interest of the
Company. The unwillingness of the Executive to accept any or all
of a change in the nature or scope of his position, authorities or
duties, a reduction in his total compensation or benefits, a
relocation that he deems unreasonable in light of his personal
circumstances, or other action by or request of the Company in
respect of his position, authority, or responsibility that he
reasonably deems to be contrary to this Agreement, may not be
considered by the Board of Directors to be a failure to perform or
misconduct by the Executive. Notwithstanding the foregoing, the
Executive shall not be deemed to have been terminated for cause for
purposes of this Agreement unless and until there shall have been
delivered to him a copy of a resolution, duly adopted by a vote of
three-quarters of the entire Board of Directors of the Company at a
meeting of the Board called and held (after reasonable notice to
the Executive and an opportunity for the Executive and his counsel
to be heard before the Board) for the purpose of considering
whether the Executive has been guilty of such a willful failure to
perform or such willful misconduct as justifies termination for
cause hereunder, finding that in the good faith opinion of the
Board the Executive has been guilty thereof and specifying the
particulars thereof.
(c) The resignation of the Executive shall be deemed
"voluntary" if it is for any reason other than one or more
of the following:
(i) The Executive's resignation or retirement (other
than mandatory retirement, as aforesaid) is requested by
the Company other than for cause;
(ii) Any other significant change in the nature or
scope of the Executive's position, authorities or duties
from those described in Section 3;
(iii) Any other reduction in his total
compensation or benefits from that provided in Section 4;
(iv) The breach by the Company of any other provision
of this Agreement; or
(v) The reasonable determination by the
Executive that, as a result of a change in control of the
Company and a change in circumstances thereafter
significantly affecting his position, he is unable to
exercise the authorities and responsibilities attached to
his position and contemplated by Section 3.
(d) Termination that entitles the Executive to the payments and
benefits provided in Section 6 shall not be deemed or treated by
the Company as the termination of the Executive's employment or
the forfeiture of his participation, award, or eligibility for
the purpose of any plan, practice or agreement of the Company
referred to in Section 4.
6. Termination Payments and Benefits. In the event of and
within 30 days following Termination, the Company shall pay to the
Executive:
(a) His base salary and all other benefits due him as if he had
remained an employee pursuant to this Agreement through the
remainder of the month in which Termination occurs less
applicable withholding taxes and other authorized payroll
deductions;
(b) The amount equal to the target award for the Executive under
the Company's annual incentive compensation plan for the fiscal
year in which Termination occurs, reduced pro rata for that
portion of the fiscal year not completed as of the end of the
month in which Termination occurs, provided that if the Executive
has deferred his award for such year under the plan, the payment
due the Executive under this Paragraph (b) shall be paid in
accordance with the terms of the deferral; and
(c) A lump sum severance allowance in an amount which
is equal to the sum of the amounts determined in
accordance with the following subparagraphs (i) and
(ii):
(i) an amount equivalent to three times his annual
base salary at the rate in effect immediately prior to
Termination; and
(ii) an amount equivalent to three times the average
of the annual incentive compensation received or deferred
by the Executive for the three fiscal years immediately
prior to the fiscal year in which Termination occurs.
7. Non-Competition and Confidentiality. The Executive agrees that:
(a) there shall be no obligation on the part of the Company to
provide any further payments or benefits (other than payments or
benefits already earned or accrued) described in Section 6 if,
when, and so long as the Executive shall be employed by or
otherwise engage in any business which is competitive with any
business of the Company or of any of its subsidiaries, as such
business existed as of the effective date of this Agreement, in
which the Executive was engaged during his employment, and if
such employment or activity is likely to cause or causes serious
damage to the Company or any of its subsidiaries; and
(b) during and after the Employment Period, he will not divulge
or appropriate to his own use or the use of others any secret or
confidential information pertaining to the business of the
Company or any of its subsidiaries obtained during his employment
by the Company, it being understood that this obligation shall
not apply when and to the extent any of such information becomes
publicly known or available other than because of his act or
omission.
8. Arrangements Not Exclusive or Limiting. The specific
arrangements referred to herein are not intended to exclude or limit
Executive's participation in other benefits available to executive
personnel generally, or to preclude or limit other compensation or
benefits as may be authorized by the Board of Directors of the Company
at any time, or to limit or reduce any compensation or benefit to which
Executive would be entitled but for this Agreement.
9. Enforcement Costs. The Company is aware that upon the
occurrence of a change in control, the Board of Directors or a
stockholder of the Company may then cause or attempt to cause the
Company to refuse to comply with its obligations under this Agreement,
or may cause or attempt to cause the Company to institute, or may
institute, litigation seeking to have this Agreement declared
unenforceable, or may take, or attempt to take, other action to deny
Executive the benefits intended under this Agreement. In these
circumstances, the purpose of this Agreement could be frustrated. It
is the intent of the parties that Executive not be required to incur
the legal fees and expenses associated with the protection or
enforcement of his rights under this Agreement by litigation or other
legal action because such costs would substantially detract from the
benefits intended to be extended to Executive hereunder, nor be bound
to negotiate any settlement of his rights hereunder under threat of
incurring such costs. Accordingly, if at any time after the effective
date of this Agreement, it should appear to Executive that the Company
is or has acted contrary to or is failing or has failed to comply with
any of its obligations under this Agreement for the reason that it
regards this Agreement to be void or unenforceable or for any other
reason, or that the Company has purported to terminate his employment
for cause or is in the course of doing so in either case contrary to
this Agreement, or in the event that the Company or any other person
takes any action to declare this Agreement void or unenforceable, or
institutes any litigation or other legal action designed to deny,
diminish or to recover from Executive the benefits provided or intended
to be provided to him hereunder, and the Executive has acted in good
faith to perform his obligations under this Agreement, the Company
irrevocably authorizes Executive from time to time to retain counsel of
his choice at the expense of the Company to represent him in connection
with the protection and enforcement of his rights hereunder, including
without limitation representation in connection with termination of his
employment contrary to this Agreement or with the initiation or defense
of any litigation or other legal action, whether by or against the
Executive or the Company or any director, officer, stockholder or other
person affiliated with the Company, in any jurisdiction. The
reasonable fees and expenses of counsel selected from time to time by
Executive as hereinabove provided shall be paid or reimbursed to
Executive by the Company on a regular, periodic basis upon presentation
by Executive of a statement or statements prepared by such counsel in
accordance with its customary practices, up to a maximum aggregate
amount of $200,000. Counsel so retained by Executive may be counsel
representing other officers or key executives of the Company in
connection with the protection and enforcement of their rights under
similar agreements between them and the Company, and, unless in his
sole judgment use of common counsel could be prejudicial to him or
would not be likely to reduce the fees and expenses chargeable
hereunder to the Company, the Executive agrees to use his best efforts
to agree with such other officers or executives to retain common
counsel.
10. Notices. Any notices, requests, demands and other
communications provided for by this Agreement shall be in writing and
personally delivered by hand or sent by registered or certified mail,
if to the Executive, to him at the last address he has filed in writing
with the Company or, if to the Company, to its corporate secretary at
its principal executive office.
11. Non-Alienation. The Executive shall not have any right to
pledge, hypothecate, anticipate, or in any way create a lien upon any
amounts provided under this Agreement, and no payments or benefits due
hereunder shall be assignable in anticipation of payment either by
voluntary or involuntary acts or by operation of law. So long as the
Executive lives, no person, other than the parties hereto, shall have
any rights under or interest in this Agreement or the subject matter
hereof.
12. Entire Agreement; Amendment. This Agreement constitutes the
entire agreement superseding any prior agreement of the parties in
respect of the subject matter hereof. No provision of this Agreement
may be amended, waived, or discharged except by the mutual written
agreement of the parties. The consent of any other person to any such
amendment, waiver or discharge shall not be required.
13. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Company, its successors or assigns, by
operation of law or otherwise, including without limitation any
corporation or other entity or person which shall succeed (whether
direct or indirect, by purchase, merger, consolidation, or otherwise)
to all or substantially all of the business and/or assets of the
Company, and the Company will require any successor, by agreement in
form and substance satisfactory to Executive, expressly to assume and
agree to perform this Agreement. Except as otherwise provided herein
this Agreement shall be binding upon and inure to the benefit of
Executive and his legal representatives, heirs, and assigns, provided,
however, that in the event of Executive's death prior to payment or
distribution of all amounts, distributions, and benefits due him
hereunder, each such unpaid amount and distribution shall be paid in
accordance with this Agreement to the person or persons designated by
Executive to the Company to receive such payment or distribution and in
the event Executive has made no applicable designation, to the person
or persons designated by Executive as the beneficiary or beneficiaries
of proceeds of life insurance payable in the event of Executive's death
under the Company's group life insurance plan.
14. Governing Law. Except to the extent required to be governed
by the law of the State of Delaware because the Company is incorporated
under the laws of that state, the validity, interpretation, and
enforcement of this Agreement shall be governed by the law of whichever
of the State of Illinois or the State of Delaware that to the greater
extent permits or does not prevent the enforcement of this Agreement in
accordance with its terms.
15. Severability. In the event that any provision or portion of
this Agreement shall be determined to be invalid or unenforceable for
any reason, the remaining provisions of this Agreement shall be
unaffected thereby and shall remain in full force and effect.
16. 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 constitute one and the same instrument.
IN WITNESS WHEREOF, the Executive has hereunto set his hand and,
pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, and its
corporate seal to be hereunto affixed and attested by its Secretary or
Assistant Secretary, all as of the day and year first shown above written.
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Executive
IMC GLOBAL INC.
(seal) By:
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Chairman and Chief Executive Officer
ATTEST
By:
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Secretary
