Exhibit 10.iii.a.
RETIREMENT
AGREEMENT
This Retirement Agreement (“
Agreement ”) is made and entered into as of
,
2009, between The Mosaic Company (the “ Company
”), a Delaware corporation having its principal place of
business in the State of Minnesota, and Steven L. Pinney (“
Pinney ”), an individual resident of the State of
Minnesota.
RECITALS
WHEREAS , Pinney has served as a Senior Vice President
Phosphate Operations and Supply Chain of the Company;
WHEREAS , the Company and Pinney have agreed that Pinney
will retire from all positions with the Company effective as of
August 6, 2009 (the “ Retirement Date
”);
WHEREAS , Pinney and the Company entered into an Amended
and Restated Senior Management Severance and Change In Control
Agreement, dated as of March 24, 2008, pursuant to which
Pinney would be entitled to receive certain benefits upon the
termination of employment under certain circumstances;
and
WHEREAS , consistent with the provisions in the Amended
and Restated Senior Management Severance and Change In Control
Agreement dated March 24, 2008, the Company and Pinney desire
to set forth all matters regarding Pinney’s retirement and
separation of employment from the Company under the terms of that
agreement, and to completely and finally resolve all rights and
claims between them.
NOW THEREFORE
, in consideration of the foregoing
premises, the covenants set forth below, and other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Pinney and the Company agree as
follows:
AGREEMENT
1. Retirement as Senior Vice
President Phosphate Operations and Supply Chain . Effective as
of the Retirement Date, Pinney hereby retires as a Senior Vice
President Phosphate Operations and Supply Chain of the Company,
from all other officer positions he currently holds with the
Company and its subsidiaries and controlled affiliates and from all
director positions he holds with the Company’s subsidiaries
and controlled affiliates, and the Company hereby accepts
Pinney’s retirement. Up to and including the Retirement Date,
Pinney shall continue to receive his base salary and all benefits
to which he is currently entitled as a Senior Vice President
Phosphate Operations and Supply Chain of the Company. Pinney
understands that his participation in all Company employee
benefits, plans, programs and fringe benefits shall cease, subject
to their terms, as of the Retirement Date unless otherwise noted in
this Agreement or as required by applicable law.
2. Compensation at Retirement
Date . In consideration for his undertakings under this
Agreement and the Amended and Restated Senior Management Severance
and Change In Control Agreement, the Company shall make the
following payments to, and distributions for the benefit of,
Pinney:
(a) Pinney shall receive payment of
Three Hundred Ninety-Five Thousand Dollars ($395,000), the
equivalent of one times annual base salary, subject to any required
withholdings, deductions, and tax reporting
requirements.
(b) The parties agree and
acknowledge that Pinney was not entitled to any bonus under the
Company’s Management Incentive Plan for fiscal 2009. As
additional consideration under this Agreement, the parties agree
that Pinney shall receive payment of Two Hundred Fifty-Six Thousand
Seven Hundred and Fifty Dollars ($256,750.00), subject to any
required withholdings, deductions, and tax reporting requirements.
Pinney understands that he will not be eligible to receive any MIP
bonus payments for fiscal 2010.
(c) The total of Six Hundred
Fifty-One Thousand Seven Hundred Fifty Dollars ($651,750.00) due to
Pinney as set forth in 2(a) and (b) above shall be paid to
Pinney in a lump sum payment representing the amounts described in
2(a) and 2(b) above, subject to any withholdings, deductions, and
tax reporting requirements, as soon as administratively possible,
but no later than 30 days after the expiration of the rescission
and revocation periods set forth in Exhibit A. Distribution of any
payments due Pinney under the Mosaic Non-Qualified Deferred
Compensation plan or other benefit plans will be made in accordance
with the terms of the plan(s) and the requirements of
Section 409A of the Internal Revenue Code (IRC).
(d) Section 4(c) of the Amended
and Restated Senior Management Severance and Change In Control
Agreement is replaced in its entirety with the following. Pinney
may elect continuation coverage under Company-provided health and
dental plans, to the extent required under federal law (referred to
as “ COBRA ”) and state law. The Company shall
pay Pinney in one (1) lump sum payment an amount equal to
Eighteen Thousand Five Hundred and Forty Dollars ($18,540.00),
subject to any required withholdings, deductions, and tax reporting
requirements, as soon as administratively possible, but no later
than 30 days after the expiration of the rescission and revocation
periods set forth in Exhibit A.
(e) The Company will pay Pinney any
unused earned vacation in the amount of Forty-Five Thousand Five
Hundred Seventy-Six Dollars ($45,576.00.00), subject to any
required withholdings, deductions, and tax reporting requirements,
consistent with the Company’s policies as of the Retirement
Date.
(f) The Company will offer Pinney
executive level outplacement services commensurate with
Pinney’s position and experience for a period no longer than
twelve (12) months following Pinney’s retirement date or
until Pinney finds new employment, whichever occurs first. The cost
of outplacement services furnished will be capped at a maximum of
Twenty Five Thousand Dollars ($25,000.00). Cash will not be paid in
lieu of outplacement services. Pinney will be responsible for any
individual tax consequences, if any, relating to the provision of
these services.
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(g) Receipt of all of the payments
described above in this Section 2 is contingent upon Pinney
first signing, and not rescinding or revoking, a General Release of
All Claims in favor of the Company, in the form attached hereto as
Exhibit A , and also continuing to abide by all of
Pinney’s continuing obligations to the Company, particularly,
but not exclusively, the non-disclosure, non-competition, and
non-solicitation covenants contained in Section 4 of this
Agreement.
3. Long-Term Incentives . The
Compensation Committee of the Company’s Board of Directors
(the “ Committee ”) has previously awarded to
Pinney non-qualified stock options to acquire 156,426 shares of the
Company’s common stock (having an exercise price equal to the
market price per share on the date of grant) (collectively, the
“ Options ”), and 13,762 restricted stock units
evidencing the right to receive one share per unit of the
Company’s common stock (collectively, the “ RSUs
”) under the Company’s Long-Term Incentive Program
(“ LTIP ”), in each case, subject to the
standard terms and conditions of The Mosaic Company 2004 Omnibus
Stock and Incentive Plan (the “ Omnibus Stock Plan
”) and applicable award agreements for each such grant or
award.
(a) Options . The Committee
shall take such actions as are necessary to accelerate the vesting
in full, effective as of the Retirement Date, of all Options
granted to Pinney that are outstanding and unvested on the
Retirement Date. Pinney agrees that, effective on the Retirement
Date, all outstanding option award agreements shall be deemed
amended hereby to provide that, with respect to all of the Options
not exercised by such date, Pinney shall be permitted to exercise
them up to and including August 6, 2010; any Options not
exercised by August 6, 2010 shall automatically be forfeited
by Pinney and may not be exercised thereafter.
(b) RSUs . The Committee
shall take such actions as are necessary to accelerate the vesting
in full, effective as of the Retirement Date, of all RSUs awarded
to Pinney that are outstanding and unvested on the Retirement Date.
Pinney understands and agrees that required tax withholding will be
deducted from his outstanding RSUs in accordance with the terms of
the Omnibus Stock Plan and the Company’s policies.
4. Non-Disclosure,
Non-Solicitation, and Non-Competition Covenants . In
consideration of receipt of the payments described in
Section 2 of this Agreement at or after the Retirement Date,
Pinney agrees, as follows:
(a) Non-Disclosure
.
(i) Pinney acknowledges that he has
received and will, through the Retirement Date, continue to receive
access to confidential and proprietary business information or
trade secrets (“ Confidential Information ”)
about the Company, that this information was obtained by the
Company at great expense and is reasonably protected by the Company
from unauthorized disclosure, and that Pinney’s possession of
this special knowledge is due solely to his employment with the
Company. In recognition of the foregoing, Pinney will not, at any
time during his remaining employment or following the Retirement
Date, for any reason, disclose, use or otherwise make available to
any third party any Confidential Information relating to the
Company’s business, including its products, production
methods, and development; manufacturing and business
methods
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and techniques; trade secrets, data,
specifications, developments, inventions, engineering and research
activity; marketing and sales strategies, information and
techniques; long and short term plans; current and prospective
dealer, customer, vendor, supplier and distributor lists, contacts
and information; financial, personnel and information system
information; and any other information concerning the business of
the Company which is not disclosed to the general public or known
in the industry, except for disclosure necessary in the course of
Pinney’s duties prior to the Retirement Date.
(ii) At or promptly following the
Retirement Date, Pinney shall deliver to a designated Company
representative all records, documents, hardware, software, and all
other Company property and all copies thereof in his possession.
Pinney acknowledges and agrees that all such materials are the sole
property of the Company and that he will certify in writing to the
Company at its request, at or promptly after the Retirement Date,
that he has complied with this obligation.
(b) Non-Solicitation
.
(i) Pinney specifically acknowledges
that the Confidential Information described in this Section 4
includes confidential data pertaining to current and prospective
customers and dealers of the Company, that such data is a valuable
and unique asset of the Company’s business and that the
success or failure of the Company’s specialized business is
dependent in large part upon the Company’s ability to
establish and maintain close and continuing personal contacts and
working relationships with such customers and dealers and to
develop proposals which are specifically designed to meet the
requirements of such customers and dealers. Therefore, during the
period prior to the Retirement Date and for the twelve
(12) month period following the Retirement Date, Pinney agrees
that he will not, except on behalf of the Company or with the
Company’s express written consent, solicit, either directly
or indirectly, on his own behalf or on behalf of any other person
or entity, any such customers and dealers with whom he had contact
during the twenty-four (24) months preceding the Retirement
Date.
(ii) Pinney specifically
acknowledges that the Confidential Information described in this
Section 4 also includes confidential data pertaining to
current and prospective employees and agents of the Company, and
Pinney further agrees that, during the period prior to the
Retirement Date and for the twelve (12) month period following
the Retirement Date, Pinney will not, directly or indirectly,
solicit, on his own behalf or on behalf of any other person or
entity, the services of any person who is an employee or agent of
the Company or solicit any of the Company’s employees or
agents to terminate their employment or agency with the Company,
except with the Company’s express written consent.
(iii) Pinney specifically
acknowledges that the Confidential Information described in this
Section 4 also includes confidential data pertaining to
current and prospective vendors and suppliers of the Company, and
Pinney agrees that, during the period prior to the Retirement Date
and for the twelve (12) month period following the Retirement
Date, he will not, directly or indirectly, solicit, on his own
behalf or on behalf of any other person or entity, any Company
vendor or supplier for the
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purpose of either providing products
or services to a business competitive with that of the Company, as
described in Section 4(c)(i), or terminate or materially
change suc
