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.
2
(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
b