Exhibit 10.1.31
Tier One Agreement
AMENDMENT NUMBER ONE (the “
Amendment ”), dated as of [ • ], between Terra Industries Inc., a
Maryland corporation (the “ Company ”), and
[NAME] (the “ Executive ”), to the Employment
Severance Agreement (the “ Employment Severance
Agreement ”), dated as of October 5, 2006, between
the Company and the Executive.
WHEREAS
the Company and the Executive wish to amend the Employment
Severance Agreement in order to address the requirements of
Section 409A of the Internal Revenue Code of 1986, as amended
(the “ Code ”).
NOW,
THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
SECTION 1.
Amendment to Section 4(b)(iii). Section 4(b)(iii)
shall be deemed to have been deleted and the following clause shall
be deemed to have been inserted in its place:
“(iii)
For purposes of this Agreement, “ Good Reason ”
means (A) during the period prior to a Change in Control and
during the period following the second anniversary thereof (each
such period, a “ Non-CIC Period ”), the
occurrence of any of the events or circumstances set forth in
clauses (1) and (2) below and (B) during the
two-year period following a Change in Control (the “ CIC
Period ”), the occurrence of any of the events or
circumstances set forth in clauses (1) through (8) below,
in each such case during the Term, without the Executive’s
express prior written consent and other than as a result of the
Executive’s Permanent Disability:
(1) the
failure of the Company to pay the Executive any compensation when
due (other than an inadvertent failure that is remedied within ten
business days after receipt of notice thereof given by the
Executive);
(2) delivery
by the Company or any Subsidiary of a notice to the Executive of
the intent to terminate the Executive’s employment for any
reason, other than for Cause or Permanent Disability, in each case
in accordance with this Agreement, regardless of whether such
termination is intended to become effective during or after the
Term;
(3) a
reduction of the Executive’s Base Salary by 10% or more from
the level in effect immediately prior to the Change in
Control;
(4) the
change of the Executive’s principal place of employment to a
location more than 50 miles from Executive’s principal place
of employment immediately prior to the change;
2
(5) an
reduction in the Executive’s Target Bonus by 10% or more from
the level in effect immediately prior to the Change in
Control;
(6) any
material diminution in the Executive’s titles, duties,
responsibilities or status from the positions, duties,
responsibilities or status existing immediately prior to the Change
in Control;
(7) the
removal of the Executive from, or any failure to re-elect the
Executive to, any of the offices the Executive held immediately
prior to the Change in Control; or
(8) any
material reduction in Executive’s retirement, insurance or
fringe benefits from the levels in effect immediately prior to the
Change in Control.
A
termination of employment by the Executive for Good Reason for
purposes of this Agreement shall be effectuated by giving the
Company written notice (“ Notice of Termination for Good
Reason ”), not later than 90 days following the
occurrence of the circumstance that constitutes Good Reason,
setting forth in reasonable detail the specific conduct of the
Company that constitutes Good Reason and the specific provision(s)
of this Agreement on which the Executive relied. The Company shall
be entitled, during the 30-day period following receipt of a Notice
of Termination for Good Reason, to cure the circumstances that gave
rise to Good Reason, provided that the Company shall be entitled to
waive its right to cure or reduce the cure period by delivery of
written notice to that effect to the Executive (such 30-day or
shorter period, the “ Cure Period ”). If, during
the Cure Period, such circumstance is remedied, the Executive will
not be permitted to terminate employment for Good Reason as a
result of such circumstance. If, at the end of the Cure Period, the
circumstance that constitutes Good Reason has not been remedied,
the Executive will be entitled to terminate employment for Good
Reason during the 30-day period that follows the end of the Cure
Period. If the Executive does not terminate employment during such
30-day period, the Executive will not be permitted to terminate
employment for Good Reason as a result of such event. If the
Company disputes the existence of Good Reason, the Company shall
have the burden of proof to establish that Good Reason does not
exist or that the circumstances that gave rise to Good Reason have
been cured.”
SECTION
2. Amendment to Section 4(c)(ii). The following
sentence shall be deemed to have been added to the end of
Section 4(c)(ii):
“Notwithstanding
the foregoing, the lump-sum payment described in this
Section 4(c)(ii) shall be paid, if at all, not later than the
74th day following the Termination Date.”
SECTION
3. Amendment to Section 4(d)(ii). The following
sentence sha
