Federal Agricultural Mortgage Corp 8-K, filed Jan 23, 2020
Federal Agricultural Mortgage Corp (AGM)
8-K
2020-01-23
For: 2020-01-16
View Original
Added on
April 04, 2026
About this 8-K
Federal Agricultural Mortgage Corp filed this 8-K on January 23, 2020, reporting on events of January 16, 2020.
Items reported
- Item 5.02: Director or officer change, or executive pay
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): January 16, 2020
(Exact name of registrant as specified in its charter)
Federally chartered instrumentality of the United States | ||||
(State or Other Jurisdiction of Incorporation) | (Commission File Number) | (IRS Employer Identification No.) | ||
(Address of Principal Executive Offices) | (Zip Code) | |||
Registrant’s telephone number, including area code (202 ) 872-7700
No change
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
Securities registered pursuant to Section 12(b) of the Act:
Title of each class | Trading symbol | Exchange on which registered | ||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2). Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
(e) Compensatory Arrangements of Certain Officers
On January 16, 2020, the Board of Directors (the “Board”) of the Federal Agricultural Mortgage Corporation (“Farmer Mac”) adopted a revised Amended and Restated Executive Officer Severance Plan (the “Plan”). The Plan amends and restates in its entirety the Amended and Restated Executive Officer Severance Plan adopted by the Board on November 3, 2016 (the “First Amended Plan”), which was previously filed as Exhibit 10.1 to the Current Report on Form 8-K filed on November 3, 2016. The Plan retains the substantive provisions of the First Amended Plan, but revises the Cause definition to more closely track the current employment agreement of Farmer Mac’s Chief Executive Officer, clarifies the terms under which an executive may terminate employment on an adverse change in conditions of employment, removes payment of accrued vacation and certain bonus components (other than the target annual bonus as part of the general severance payment), and makes other administrative and modernizing changes. The Board also approved a new form of participation agreement with enhanced and clarified restrictions on competition, solicitation, and disparagement, made other procedural changes, and updated the attached form of release. The amended Plan is effective as of January 16, 2020.
Participation in the Plan is limited to certain executive officers of Farmer Mac who are designated by the Plan Administrator and approved by the Board’s Compensation Committee and who are not parties to individual employment agreements with Farmer Mac. The individuals currently designated for participation in the Plan are Farmer Mac’s four Executive Vice Presidents: Zachary N. Carpenter (Executive Vice President - Chief Business Officer), John C. Covington (Executive Vice President - Chief Credit Officer), Stephen P. Mullery (Executive Vice President - General Counsel and Secretary), and Aparna Ramesh (Executive Vice President - Chief Financial Officer and Treasurer). To become a participant in the Plan (a “Participant”), the designated executive officers must execute a participation agreement (“Participation Agreement”) that sets forth the conditions for receipt of payments and benefits under the Plan.
Under the Plan, if Farmer Mac terminates a Participant’s employment other than for “Cause” (as defined in the Plan) or if the Participant terminates his or her employment with Farmer Mac after an “Adverse Change in Conditions of Employment” (as defined in the Plan), upon execution of a valid release agreement that becomes effective and irrevocable, the Participant will be entitled to:
(1) | an amount equal to the sum of the Participant’s annual base salary and annual target bonus, payable in one lump sum; |
(2) | for 12 months, Farmer Mac’s payment of the cost of premiums for the Participant and the Participant’s eligible dependents for continuing health, dental, and vision benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), which amounts shall be limited to the excess over what Farmer Mac’s active employees are then required to pay for comparable benefits sponsored by the company and the payment of which shall also be subject to the Participant’s continued compliance with the terms of the Participation Agreement, with payment ceasing if the individual becomes eligible for a new employer’s coverage; and |
(3) | payment of any accrued and unpaid annual base salary and any unpaid expense reimbursements incurred by the Participant for ordinary and reasonable business expenses incurred in the course of conducting Farmer Mac business. |
The payments and benefits described in (1), (2), and (3) above will be in lieu of any other severance payments to Participants. The payments described in (3) above shall not include any accrued vacation pay or any accrued annual target bonus other than amounts not yet paid for service during an entire completed fiscal year, subject to discretion exercised in the ordinary course.
Amounts payable to any Participant under the Plan are subject to any recoupment or clawback policy as may be implemented and interpreted by Farmer Mac, including those implemented to comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act, or any other applicable law or regulation.
This description is qualified in its entirety by reference to the Plan and the Participation Agreement. The Plan is attached to this report as Exhibit 10.1 and is incorporated by reference. The Participation Agreement is attached to this report as Exhibit 10.2 and is incorporated by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
101.INS | Inline XBRL Instance Document - the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document |
101.SCH | Inline XBRL Taxonomy Extension Schema |
101.CAL | Inline XBRL Taxonomy Extension Calculation |
101.DEF | Inline XBRL Taxonomy Extension Definition |
101.LAB | Inline XBRL Taxonomy Extension Label |
101.PRE | Inline XBRL Taxonomy Extension Presentation |
104 | Cover Page Inline Interactive Data File - the cover page interactive data file does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document included as Exhibit 101 |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
FEDERAL AGRICULTURAL MORTGAGE CORPORATION
By: /s/ Stephen P. Mullery
Name: Stephen P. Mullery
Title: Executive Vice President – General Counsel
Dated: January 23, 2020
THE FEDERAL AGRICULTURAL MORTGAGE CORPORATION
AMENDED AND RESTATED EXECUTIVE OFFICER SEVERANCE PLAN
(Effective as of January 16, 2020)
THE FEDERAL AGRICULTURAL MORTGAGE CORPORATION
AMENDED AND RESTATED EXECUTIVE OFFICER SEVERANCE PLAN
AMENDED AND RESTATED EXECUTIVE OFFICER SEVERANCE PLAN
(Effective as of January 16, 2020)
ARTICLE I
PURPOSE
PURPOSE
On June 7, 2012, the Board of Directors of the Federal Agricultural Mortgage Corporation (the “Company”) adopted an Executive Officer Severance Plan (the “Original Plan”) to provide executive officers who are in a position to contribute materially to the success of the Company with reasonable compensation in the event of their termination of employment with the Company. On November 3, 2016, the Board of Directors of the Company amended the Original Plan to revise the definition of a termination of employment for “Cause” and to retain all other substantive provisions of the Original Plan (referred to as the “First Amended Plan” as so amended). The Board of Directors of the Company desires to amend the First Amended Plan to, among other things, revise the definition of an “Adverse Change in Conditions of Employment” and related procedural requirements, further revise the definition of a termination of employment for “Cause,” change the designated Plan Administrator, clarify the amount of Separation Pay payable by the Company in the event of a termination of employment without “Cause,” and revise the form of participation agreement and termination and release agreement required for individuals to participate in the Plan. This Amended and Restated Executive Officer Severance Plan (referred to as the “Plan” as so amended) shall amend and supersede the Original Plan and the First Amended Plan in their entirety. The Plan is intended to satisfy the requirements of Section 409A of the Code with respect to amounts subject thereto.
ARTICLE II
DEFINITIONS
DEFINITIONS
The following words and phrases as used herein shall have the following meanings:
SECTION 2.01 “Adverse Change in Conditions of Employment” means the occurrence of any of the following events:
(i) An adverse change by the Company in the Participant’s duties, authorities, or responsibilities, which change would cause the Participant’s position with the Company to become one of substantially less responsibility, importance or scope;
(ii) A 10% or larger reduction by the Company (in one or more steps during the course of any one calendar year) of the Participant’s Monthly Base Salary; or
(iii) A change in the geographic location of the Participant’s principal place of performance of services for the Company to a location more than fifty miles from the then current location that is also more than fifty miles from the Participant’s primary residence;
provided, however, that the Participant shall notify the Company in writing within 30 days of the occurrence of a change described above and the Company shall have 30 days to cure such change to the reasonable satisfaction of the Participant (including retroactively with respect to monetary matters), which change, to the extent so cured, shall not be considered an Adverse Change in Conditions of Employment. To be treated as resigning as a result of an Adverse Change in Conditions of Employment, the Participant must actually cease to be employed within 30 days following the cure period (or, if the Company notifies the Participant that the change will not be cured, within 30 days after such notice).
SECTION 2.02 “Annual Base Salary” means a Participant’s rate of annual base salary at the time of the Participant’s termination of employment, excluding any of the following: year-end or other bonuses, incentive compensation, whether short‑term or long‑term, commissions, reimbursed expenses, and any payments on account of premiums on insurance or other contributions made to other welfare or benefit plans.
SECTION 2.03 “Annual Target Bonus” means the Participant’s annual target bonus for the year in which his or her Qualified Termination of Employment occurs, or if the target has not been set at the time of such termination, the actual bonus amount payable in respect of the preceding year.
SECTION 2.04 “Beneficiary” means the person, persons or entity designated by the Participant to receive any benefits payable under the Plan. Any Participant’s Beneficiary designation shall be made in a written instrument filed with the Company and shall become effective only when received, accepted and acknowledged in writing by the Company.
SECTION 2.05 “Board” means the Board of Directors of the Company.
SECTION 2.06 “Cause” means (A) the Participant’s breach of an obligation or representation under this Plan or the terms of any notice or agreement issued by the Company with respect to participation hereunder or of any fiduciary duty to the Company, including, without limitation, any act of fraud or misrepresentation or concealment to the Company or the Board; (B) the Participant’s violation of or failure to adhere to any Code of Conduct in effect from time to time that is applicable to officers and/or employees of the Company generally or any written policy of the Company in effect from time to time if not remedied within five (5) business days after the Company’s providing notice thereof (except that with respect to a violation of any policy relating to equal employment opportunity, discrimination, or harassment, or any violation involving dishonesty, the Participant shall not be entitled to notice or the opportunity to cure); (C) the Participant commits, is convicted of, or pleads guilty or nolo contendere to, any felony of any kind or any misdemeanor or other conduct involving moral turpitude; (D) the Participant’s violation of, or failure to abide by any law or regulation relating to his or her employment with the Company (including, without limitation and for the avoidance of doubt, any insider trading law) or otherwise applicable to him or her in the capacity as an employee or officer of the Company; (E) conduct by the Participant in connection with his or her employment that constitutes dishonesty or misconduct; (F) neglect of the Participant’s duties, including, without limitation, the duty to supervise, if not remedied within five (5) business days after the Company’s providing notice thereof; (G) the Participant’s use of illegal drugs, abuse of
2
other controlled substances, or working under the influence of alcohol or other controlled substances (except as may be authorized by a prescription from a physician); (H) any failure or refusal by the Participant to perform his or her duties under this Plan or the terms of any notice or agreement issued by the Company with respect to participation hereunder, if not remedied within five (5) business days after the Company’s providing notice thereof; or (I) any failure or refusal by the Participant to obey lawful directives from the Board or its authorized designee, if not remedied within five (5) business days after the Company’s providing notice thereof. For each sub-part of this definition of “Cause” in which the Participant is provided the right to notice and the opportunity to cure, the determination as to whether an act, omission, or violation is curable, and the determination as to whether it has been cured shall be by the Board in its good faith judgment. In no event shall the Participant have the right to notice or opportunity to cure more than once for violation of any sub-part of this “Cause” definition. After the Participant has been provided notice of, and effected cure of, a violation of any sub-part of this “Cause” definition, the Company shall have the right to terminate the Participant’s employment for “Cause” for any subsequent violation of that sub-part. Any resignation by the Participant that occurs after any notice provided under this subsection, or after the Participant has committed an act or omission that constitutes “Cause” hereunder, and before the Board has determined whether an act, omission, or violation is curable or has been cured shall be treated as a termination of employment for “Cause” for purposes of this Plan.
SECTION 2.07 “Code” means the Internal Revenue Code of 1986, as amended from time to time, and the applicable rules and regulations promulgated thereunder.
SECTION 2.08 “Commencement Date” means the first day of the first regular payroll cycle coincident with or next following the date of the Participant’s “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of the Code.
SECTION 2.09 “Committee” means the Compensation Committee of the Board.
SECTION 2.10 “Company” means the Federal Agricultural Mortgage Corporation, a federally-chartered instrumentality of the United States, or any successor corporation.
SECTION 2.11 “Disability” means a Participant’s incapacity or disability by accident, sickness or otherwise so as to render him or her (in the opinion of an independent medical consultant selected by the Board in its reasonable discretion) mentally or physically incapable of performing the services required to be performed by him or her in the course of his or her employment for a period of at least ninety (90) consecutive days, or for ninety (90) days (whether consecutive or not) during any six-month period.
SECTION 2.12 “Effective Date” means January 16, 2020.
SECTION 2.13 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the applicable rules and regulations promulgated thereunder.
3
SECTION 2.14 “Long-Term Disability Policy” means any Federal Agricultural Mortgage Corporation Long-Term Disability Policy, as amended from time to time (or any successor policy), or any individual policy covering the Participant.
SECTION 2.15 “Monthly Base Salary” means a Participant’s Annual Base Salary, divided by 12.
SECTION 2.16 “Participant” means each employee who participates in the Plan, as provided in Section 4.01 of the Plan.
SECTION 2.17 “Plan” means this Federal Agricultural Mortgage Corporation Amended and Restated Executive Officer Severance Plan, as amended from time to time.
SECTION 2.18 “Plan Administrator” has the meaning set forth in Section 3.01 of the Plan.
SECTION 2.19 “Qualified Termination of Employment” means termination of the employment of a Participant with the Company (other than by reason of death, Disability, or voluntary resignation by a Participant under circumstances not qualifying under this Section 2.19) as follows:
(i) By the Company other than for Cause,
(ii) By the Participant after an Adverse Change in Conditions of Employment that satisfies the process in Section 2.01 of the Plan.
SECTION 2.20 “Release” means a termination and release agreement, which shall, among other things, release the Company, and its directors, officers, employees, agents, successors, and assigns, from any and all claims that the Participant has or may have against the Company and its directors, officers, employees, agents, successors, and assigns.
SECTION 2.21 “Release Period” means the 60-day period following a Participant’s termination of employment.
SECTION 2.22 “Separation Pay” has the meaning set forth in Section 5.01(a)(i) of the Plan.
SECTION 2.23 “Separation Period” means 12 months following the Qualified Termination of Employment.
SECTION 2.24 “Specified Employee” means a Participant who is a “specified employee” within the meaning of Section 409A(a)(2)(b)(i) of the Code.
4
ARTICLE III
ADMINISTRATION
ADMINISTRATION
SECTION 3.01 Administration. The Plan shall be administered by the senior person at the Company with oversight of the Human Resources function (the “Plan Administrator”), who shall have full authority to construe and interpret the Plan, to establish, amend and rescind rules and regulations relating to the administration of the Plan, and to take all such actions and make all such determinations in connection with the administration of the Plan as he or she may deem necessary or desirable. The decisions of the Plan Administrator shall be reviewable by the Committee. The Committee shall also have the full authority to make, amend, interpret, and enforce all appropriate rules and regulations for the administration of the Plan and decide and resolve any and all questions, including interpretations of the Plan, as may arise in connection with the Plan. The Plan Administrator and the Committee shall each have the power to designate one or more persons as he or she may deem necessary or desirable in connection with the Plan, who need not be members of the Committee or employees of the Company, to serve or perform some or all of the functions of the Plan Administrator and Committee, respectively, on his or her behalf. Such person(s) shall have the same rights and authority as the Plan Administrator and Committee who appointed him or her would have had if acting directly.
SECTION 3.02 Binding Effect of Decisions. The decision or action of the Committee or Plan Administrator in respect to any question arising out of or in connection with the administration, interpretation and application of the Plan and the rules and regulations promulgated hereunder shall be final, conclusive and binding upon all persons having any interest in the Plan.
SECTION 3.03 Indemnification. To the fullest extent permitted by law, the Plan Administrator, the Committee and the Board (and each member thereof), and any employee of the Company to whom responsibilities have been delegated shall be indemnified by the Company against any claims, and the expenses of defending against such claims, resulting from any action or conduct relating to the administration of the Plan, except claims arising from gross negligence, willful neglect or willful misconduct.
ARTICLE IV
PARTICIPATION
PARTICIPATION
SECTION 4.01 Eligible Participants. Subject to the approval of the Committee, the Plan Administrator shall from time to time select Participants from among those employees who are executive officers of the Company and who are not parties to individual employment agreements with the Company.
SECTION 4.02 Participation Notification; Participation Agreement. The Company shall notify each Participant in writing of his or her participation in the Plan, and the notice shall also set forth the payments and benefits to which the Participant may become entitled under the Plan and the conditions of receipt of those benefits, including any applicable restrictive covenants. The Company shall also enter into such agreements as the Committee deems necessary or appropriate with respect to a Participant’s rights under the Plan. Any such notice or
5
agreement may contain such terms, provisions and conditions not inconsistent with the Plan, as shall be determined by the Committee, in its sole discretion.
SECTION 4.03 Termination of Participation. A Participant shall cease to be a Participant in the Plan upon the earlier of (i) receipt of all of the payments, if any, to which he or she is or becomes entitled under the terms of the Plan and the terms of any notice or agreement issued by the Company with respect to his or her participation hereunder, (ii) the termination of his or her employment with the Company under circumstances not requiring payments under the terms of the Plan, or (iii) the termination of the Plan in accordance with Section 8.01.
ARTICLE V
PAYMENTS UPON TERMINATION OF EMPLOYMENT
PAYMENTS UPON TERMINATION OF EMPLOYMENT
SECTION 5.01 Separation Pay. (a) In the event of a Qualified Termination of Employment, the Participant shall be entitled to the following:
(i) if, during the Release Period, the Participant delivers to the Company a signed and valid Release and the Release becomes effective and irrevocable in its entirety, an amount of separation pay (the “Separation Pay”) equal to the sum of Participant’s Annual Base Salary and Annual Target Bonus, payable in one lump sum in the Company’s first regular payroll cycle beginning following the Release Period which in no event shall be later than two and one-half (2.5) months following the end of the year in which the Qualified Termination of Employment occurs. If the Release does not become effective and irrevocable in its entirety prior to the expiration of the Release Period, the Participant shall not be entitled to any payments pursuant to this Section 5.01(a)(i);
(ii) to the extent that a Participant timely elects to continue health, dental, or vision benefits after the Qualified Termination of Employment pursuant to the requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), subject to the Participant delivering to the Company a signed and valid Release and the Release becoming effective and irrevocable in its entirety as well as the Participant’s continued compliance with the covenants set forth in the Participation Agreement, the Company shall pay the cost of the COBRA premium during the Separation Period on the Participant’s and his or her eligible dependents’ behalf (but only to the extent that the Company continues to offer such plans and programs to similarly situated active employees of the Company). The amount of the Company’s payment of the COBRA premium shall be limited to the excess over what active employees are then required to pay for comparable health, dental, or vision benefits sponsored by the Company. If this commitment to provide benefits continuation raises any compliance issues or impositions of penalties under any non-discrimination rules that have been issued or are issued in the future pursuant to the Patient Protection and Affordable Care Act (PPACA) or is treated as discriminatory under Section 105(h) of the Code, the Company may modify this Plan in any manner it deems necessary or advisable, in its sole discretion, so that it complies with the terms of those non-discrimination rules, including by ceasing to provide COBRA payments; and
6
(iii) payment of any accrued and unpaid Annual Base Salary as of the date of termination and any unpaid expense reimbursements incurred by the Participant for ordinary and reasonable business expenses incurred in the course of conducting Farmer Mac business. For the avoidance of doubt, these accrued and unpaid amounts shall not include any accrued vacation pay or any accrued Annual Target Bonus (other than amounts not yet paid for the Participant’s service during an entire completed fiscal year, subject to discretion exercised by the Board or the Committee in the ordinary course).
(b) The payments and benefits described in Section 5.01(a) of the Plan shall be in lieu of any other payments to the Participant under any other severance pay or separation allowance plan, program, agreement, or policy of the Company.
SECTION 5.02 Disability. Upon termination of the Participant’s employment by notice on account of the Participant’s Disability, the Company shall continue to pay the Participant during the Separation Period the difference between the Participant’s current Base Salary and the amount of disability insurance payments received by the Participant under the Company’s Long-Term Disability Policy if and to the extent that those Company payments will not cause a reduction in or offset of the policy payments. In the event a Participant dies after the commencement of payments pursuant to this Section 5.02, the balance of said payments shall be payable in accordance with Article VII of the Plan.
SECTION 5.03 Specified Employees. With respect to amounts payable under the Plan that are subject to Section 409A of the Code, notwithstanding the other provisions of this Article V, no such payment to a Specified Employee under the Plan shall be made or commenced prior to the date that is six months following the Specified Employee’s Commencement Date; provided that amounts under the Plan that would, if not so delayed, otherwise be payable to the Specified Employee prior to such date shall be paid to the Specified Employee on or within 30 days after such delayed payment date; and provided further, however, that payment of such amounts shall commence within 30 days of the Participant’s death (or as soon thereafter as is practicable and consistent with the requirements of Section 409A) in the event of his or her death prior to the end of the six-month period.
ARTICLE VI
MITIGATION AND OFFSET
MITIGATION AND OFFSET
SECTION 6.01 Mitigation. No Participant shall be required to mitigate the amount of any payment under the Plan by seeking employment or otherwise, and there shall be no right of set-off or counterclaim, in respect of any claim, debt or obligation, against any payments to the Participant, his or her dependents, Beneficiaries, or estate provided for in the Plan.
SECTION 6.02 Offset. If, after a Participant’s termination of employment with the Company, the Participant is employed by another entity or becomes self-employed, the amounts (if any) payable under the Plan to the Participant shall not be offset by the amounts (if any) payable to the Participant from such new employment with respect to services rendered during the severance period applicable to such Participant under the Plan. Notwithstanding this lack of offset, the Participant’s eligibility for the continuation of benefits and the Company’s payment of
7
COBRA premiums provided for in Section 5.01(a)(ii) of the Plan shall immediately cease upon such new employment.
ARTICLE VII
BENEFICIARY DESIGNATION
BENEFICIARY DESIGNATION
SECTION 7.01 Beneficiary Designation. Each Participant shall have the right, at any time, to designate any person, persons, entity or entities as his or her Beneficiary or Beneficiaries (both primary as well as contingent) to whom payment under the Plan shall be paid in the event of the Participant’s death prior to complete distribution to the Participant of the benefits due him or her under the Plan.
SECTION 7.02 Amendments. Any Beneficiary designation may be changed by a Participant by the written filing of such change on a form prescribed by the Company. The new Beneficiary designation form shall cancel all Beneficiary designations previously filed.
SECTION 7.03 No Beneficiary Designation. If a Participant fails to designate a Beneficiary as provided above, or if all designated Beneficiaries predecease the Participant, then any amounts to be paid to the Participant’s Beneficiary shall be paid to the Participant’s estate.
SECTION 7.04 Effect of Payment. The payment under this Article VII of the amounts due to a Participant under the Plan to a Beneficiary shall completely discharge the Company’s obligations in respect of the Participant under the Plan.
ARTICLE VIII
AMENDMENT AND TERMINATION OF PLAN
AMENDMENT AND TERMINATION OF PLAN
SECTION 8.01 Amendment and Termination. (a) The Company shall have the right at any time, in its discretion, to amend the Plan, in whole or in part, or to terminate the Plan, by resolution of the Board or Committee or delegate thereof, except that no amendment or termination shall impair or abridge the obligations of the Company to any Participant or the rights of any Participant under the Plan without the express written consent of the affected Participant with respect to any termination of employment that occurred before such amendment or termination.
(b) Except for the amendments made in accordance with Section 8.01(a) or Section 5.01(a)(ii) of the Plan, no modifications, alterations and/or changes made to the terms and/or provisions of the Plan, either globally or for an individual participant, will be effective unless evidenced by a writing that directly refers to the Plan and which is signed and dated by the Plan Administrator.
SECTION 8.02 Section 409A. This Plan is intended to satisfy or be exempt from the requirements of Section 409A of the Code with respect to amounts subject thereto and shall be interpreted and construed and shall be performed by the parties consistent with such intent. As used in this Plan, phrases such as “termination of employment” shall be interpreted to mean a “separation from service” using the default rules under Section 409A of the Code. If,
8
in the good faith judgment of the Plan Administrator, any provision of the Plan could otherwise cause any person to be subject to the interest and penalties imposed under Section 409A of the Code, such provision shall be modified by the Plan Administrator in its sole discretion to maintain, to the maximum extent practicable, the original intent of the applicable provision without causing the interest and penalties under Section 409A of the Code to apply, and, notwithstanding any provision in the Plan to the contrary, the Plan Administrator shall have broad authority to amend or to modify the Plan, without advance notice to or consent by any person, to the extent necessary or desirable to ensure that no payment or benefit under the Plan is subject to tax under Section 409A of the Code. Any determinations made by the Plan Administrator under this Section 8.02 shall be final, conclusive and binding on all persons. Anything in the Plan to the contrary notwithstanding, each payment under the Plan made to a Participant shall be treated as a separate and distinct payment from all other such payments for purposes of Section 409A of the Code, and it is understood that the timing of payment is within the control of the Company. To the extent that any reimbursements made to the Participant under this Plan are taxable to the Participant, any such reimbursement payment shall be paid to the Participant as promptly as practicable, and in all events on or before the last day of the Participant’s taxable year following the taxable year in which the related expense was incurred. The reimbursements are not subject to liquidation or exchange for another benefit, and the amount of such benefits and reimbursements that the Participant receives in one taxable year shall not affect the amount of such benefits or reimbursements that the Participant receives in any other taxable year.
ARTICLE IX
MISCELLANEOUS
MISCELLANEOUS
SECTION 9.01 Effect on Other Plans. Except as otherwise provided in Section 5.01 or Section 6.02 of the Plan, nothing in the Plan shall affect the level of benefits provided to or received by any Participant (or the Participant’s estate or Beneficiaries) as part of any employee benefit plan of the Company. The Plan shall not be construed to affect in any way the Participant’s rights and obligations under any other plan maintained by the Company on behalf of employees.
SECTION 9.02 Unsecured General Creditor. Participants and their Beneficiaries shall have no legal or equitable rights, interest or claims in any property or assets of the Company. The assets of the Company shall not be held under any trust for the benefit of Participants or their Beneficiaries or held in any way as collateral security for the fulfilling of the obligations of the Company under the Plan. Any and all of the Company’s assets shall be, and remain, the general, unpledged, unrestricted assets of the Company. The Company’s obligation under the Plan shall be merely that of an unfunded and unsecured promise of the Company to pay money in the future.
SECTION 9.03 Nonassignability. Each Participant’s rights under the Plan shall be nontransferable except by will or by the laws of descent and distribution and except insofar as applicable law may otherwise require. Subject to the foregoing, neither a Participant nor any other person shall have any right to commute, sell, assign, transfer, pledge, anticipate, mortgage
9
or otherwise encumber, transfer, hypothecate or convey in advance of actual receipt the amounts, if any, payable hereunder, or any part thereof, which are, and all rights to which are, expressly declared to be nonassignable and non‑transferable. No part of the amounts payable shall, prior to actual payment, be subject to seizure or sequestration for the payment of any debts, judgments, alimony or separate maintenance owed by a Participant or any other person, nor be transferable by operation of law in the event of a Participant’s or any other person’s bankruptcy or insolvency.
SECTION 9.04 Not a Contract of Employment. The terms and conditions of the Plan shall not be deemed to constitute a contract of employment with the Participant, and the Participant (or his or her Beneficiary) shall have no rights against the Company except as specifically provided herein. Moreover, nothing in the Plan shall be deemed to give a Participant the right to be retained in the service of the Company or to interfere with the rights of the Company to discipline or discharge him or her at any time.
SECTION 9.05 Binding Effect. The Plan shall be binding upon and shall inure to the benefit of the Participant or the Participant’s Beneficiary, heirs, and legal representatives, and the Company.
SECTION 9.06 Withholding; Payroll Taxes. The Company shall withhold from any payments to be made hereunder all taxes required to be withheld for any federal, state or local government and all other authorized deductions.
SECTION 9.07 Recoupment. Amounts payable to any Participant under this Plan shall be subject to any recoupment or “clawback” policy as may be implemented and interpreted by the Company from time to time, including, but not limited to, any recoupment or “clawback” policy that may be implemented by the Company to comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act, or any other applicable law or regulation.
SECTION 9.08 Severability. In the event that any provision or portion of the Plan shall be determined to be invalid or unenforceable for any reason, the remaining provisions and portions of the Plan shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law.
SECTION 9.09 Governing Law. The Plan shall be construed under the laws of the District of Columbia, to the extent not preempted by federal law.
SECTION 9.10 Headings. The section headings used in this document are for ease of reference only and shall not be controlling with respect to the application and interpretation of the Plan.
10
SECTION 9.11 Rules of Construction. Any words herein used in the masculine shall be read and construed in the feminine where they would so apply. Words in the singular shall be read and construed as though used in the plural in all cases where they would so apply. All references to sections are, unless otherwise indicated, to sections of the Plan.
APPROVED BY THE BOARD OF DIRECTORS OF
THE FEDERAL AGRICULTURAL MORTGAGE CORPORATION
ON JANUARY 16, 2020
THE FEDERAL AGRICULTURAL MORTGAGE CORPORATION
ON JANUARY 16, 2020
By: /s/ Lowell L. Junkins
Lowell L. Junkins
Chairman of the Board
11
PARTICIPATION AGREEMENT
As a condition to, and in consideration of, your participation in the Federal Agricultural Mortgage Corporation Amended and Restated Executive Officer Severance Plan (effective as of January 16, 2020) (the “Plan”), you hereby agree to the following:
1. Agreement Not to Compete.
During the Restriction Period (as defined below), you shall not, without the prior written consent of the Company, directly or indirectly, engage in any business or activity, whether as principal, agent, officer, director, partner, employee, independent contractor, consultant, stockholder or otherwise, alone or in association with any other person, firm, corporation, or other business organization, that directly competes with any of the businesses of the Company in any manner, including without limitation, the acquisition, securitization, or credit enhancement of agricultural mortgage loans, USDA-guaranteed portions, or rural utilities loans (hereinafter referred to as the “Qualified Loans”); provided, however, that such prohibited activity shall not include the passive ownership of up to 5% of the common stock in a public company. For purposes of this agreement (the “Agreement”), the Restriction Period will be during your employment and until the first anniversary of your cessation from employment with the Company.
2. Agreement Not to Use Confidential or Proprietary Information.
The Company and you both recognize that you have access to and acquire, and may assist in developing, confidential and proprietary information relating to the business and operations of the Company as a result of your employment or association with the Company. You hereby covenant and agree that you will retain all “Confidential Information” (as defined below) in trust for the sole benefit of the Company and its successors and assigns. You hereby covenant further that, in addition to your fiduciary responsibilities as an officer not to disclose certain information of or relating to the Company, you will not, at any time during or after the term of this Agreement, without the prior written consent of the Company, directly or indirectly communicate or divulge any such Confidential Information to any person, firm, corporation or other business organization (other than your attorneys for the purpose of obtaining legal advice), or use any such Confidential Information for your own account or for the account of any other person, except as required in connection with the performance of your services hereunder. The term “Confidential Information” shall mean any trade secret, data or other confidential or proprietary information related to the business and activities of the Company. You may, however, disclose or use any such information (i) as has become generally available to the public other than through a breach of this Agreement by you or your attorney; (ii) as becomes available to you on a non-confidential basis from a source other than any other party hereto, provided that such source is not known or reasonably believed by you to be bound by a confidentiality agreement or other obligations of secrecy; (iii) as may be required in any report, statement, or testimony required to be submitted to any Governmental Entity (as defined below) having or claiming to have jurisdiction over it, or as may be otherwise required by applicable law, or as may be required in response to any summons or subpoena or in connection with any litigation, provided, however, that if such disclosure is required by law, you shall provide the Company
with prompt notice of such requirement so that the Company may seek an appropriate protective order prior to any such required disclosure by the Participant; (iv) to report possible violations of federal, state, or local law or regulation to any Governmental Entity, or from making other disclosures that are protected under the whistleblower provisions of federal, state, or local law or regulation, and you shall not need the prior authorization of the Company to make any such reports or disclosures and shall not be required to notify the Company that you have made such reports or disclosures; (v) to disclose a trade secret (as defined by 18 U.S.C. § 1839) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, in either event solely for the purpose of reporting or investigating a suspected violation of law; (vi) to disclose a trade secret (as defined by 18 U.S.C. § 1839) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; or (vii) as may be necessary to establish your rights under this Agreement. For the purposes of this Agreement, “Governmental Entity” means any government or agency, district, bureau, board, commission, court, department, official, political subdivision, tribunal, taxing authority or other instrumentality of any government, whether federal, state or local, domestic or foreign.
3. Agreement Not to Solicit.
During the Restriction Period, you shall not, directly or indirectly, induce any employee of the Company who is a “member of management” (as defined below) or is directly involved in the acquisition and securitization of Qualified Loans to engage in any activity in which you are prohibited from engaging in under this Agreement, or to terminate such person’s employment with the Company. During the Restriction Period, you shall not directly or indirectly, either individually or as owner, agent, employee, consultant, or otherwise, employ, offer employment to, lure, entice away, or assist others in recruiting or hiring any person who is or was employed by the Company unless such person shall have ceased to be employed by the Company for a period of at least six months and is not subject to any non-compete covenants substantially similar in nature to those contained in Section 1 of this Agreement. “Member of management” means the President, any Executive Vice President, any Senior Vice President, any Vice President, the Secretary, the Treasurer, or the Controller of the Company. In addition, during the Restriction Period, you shall not induce or attempt to induce any customer, client, supplier, licensee, or other business relation of the Company to cease doing business with the Company, or in any way interfere with the relationship between the Company and any customer, client, supplier, licensee, or other business relation of the Company.
4. Agreement Not to Disparage the Company.
You shall not, directly or indirectly, make any statement (oral or written), or take any other action, which is in any way disparaging to or tends to diminish the reputation of the Company, its products, services, business practices, operations, officers, directors, or employees, whether past or current. This Section 4 shall not in any way limit any of your rights to report or disclose information that are expressly reserved in Section 2 (“Agreement Not to Use Confidential or Proprietary Information”), or in any way limit your ability to provide truthful testimony or information in response to a subpoena, court or arbitral order, or valid request by a Governmental Entity, or as otherwise required by law, nor prevent you from making such
2
statements in the good faith fulfillment of your duties to the Company (such as in managing subordinates or critiquing operations).
5. Reasonable Restrictions; Remedies.
(a) You agree that your eligibility for the Plan provides adequate consideration for the restrictions under this Agreement, even if your employment ends under circumstances that are not a Qualified Termination of Employment (as defined in the Plan) and even if your position, duties, responsibilities, and compensation change after the date of this Agreement.
(b) This Agreement shall be deemed to consist of a series of separate covenants, one for each line of business described in Section 1 of this Agreement. The parties expressly agree that the character, duration, and subject matter scope of this Agreement are reasonable in light of the circumstances as they exist on the date upon which this Agreement has been executed and as they are expected to change from time to time, including but not limited to circumstances relating to the need to protect the value of the Company’s assets, relationships, goodwill, and business. However, should a determination nonetheless be made by a court of competent jurisdiction at a later date that the character, duration, or subject matter scope of this Agreement exceeds that permitted by applicable law in a particular jurisdiction, then the parties agree that such provision(s) will be more narrowly drawn or otherwise “blue-penciled,” modified, or reformed to the maximum character, duration, and subject matter scope, as the case may be, permitted by applicable law in such jurisdiction, without affecting the enforceability of any provisions of this Agreement in other jurisdictions. If, in any judicial proceeding, a court shall refuse to enforce all of the separate covenants deemed included herein because, taken together, they are more extensive (after giving effect to any reformation contemplated by the preceding sentence) than necessary or appropriate to assure the Company of the intended benefit of this Agreement, it is expressly understood and agreed among the parties hereto that those of such covenants that, if eliminated, would permit the remaining separate covenants to be enforced in such proceeding shall, for the purpose of such proceeding, be deemed eliminated from the provisions hereof in that jurisdiction.
(c) You agree that any breach of the terms of Section 1, 2, 3, and/or 4 of this Agreement may result in irreparable injury and damage to the Company for which it would have no adequate remedy at law. You therefore also agree that in the event of such breach, the Company shall be entitled to an immediate injunction and restraining order without having to post any bond and without any requirement to prove damages. The terms of this paragraph shall not prevent the Company from pursuing any other available remedies for any breach or threatened breach of this Agreement, including the recovery of damages from you and the requirement to make you repay the gross amount, if any, paid to you under the Plan.
6. Return of Property.
Upon cessation of employment, you agree to return to the Company all Company-owned keys, files, records (and copies thereof), equipment (including computer hardware, software and printers, wireless handheld devices, cellular phones, tablets, smartphones, etc.), Company identification, the Company proprietary and confidential information, and any other Company-
3
owned property in your possession or control and must leave intact with, or deliver intact to, the Company all electronic Company documents and internal and external websites, including those that you develop or help to develop during your employment, and must thereafter delete, and destroy any hard copies of, all electronic files relating to the Company that are in your possession or control, including any that are located on any of your personal computers or external or cloud storage (or provide reasonable access to your personal devices for the sole purpose of wiping any such devices, which access will fully satisfy your obligations under this provision). If you determine later that copies of electronic files were inadvertently left on such sources, you agree to promptly delete the copies.
7. Cooperation.
After your employment ends, you agree to cooperate with the Company in providing reasonable assistance as requested by the Company’s Chief Executive Officer or his or her delegate with respect to the transitioning of your work and agree that you will be available to the Company for these purposes and that you will comply in good faith with the directions of the Company. The post-employment assistance is expected to include availability to answer questions regarding the operation of the Company but is not expected to extend beyond providing responses by email and/or phone on an occasional basis. In addition, following termination of your employment for any or no reason, if, in the reasonable judgment of the Company or its counsel, your assistance or cooperation is needed due to your personal involvement in or knowledge about the circumstances to which a litigation or investigation relates, you agree to provide reasonable cooperation so long as such cooperation is on mutually agreeable timing and terms (to the fullest extent practicable) determined through good faith discussions (and with assistance or cooperation permitted to be provided remotely where possible). The Company will reimburse you for reasonable travel and lodging expenses related to such cooperation and will discuss with you a per diem. You will undertake to satisfy requests for information from the Company with respect to the above undertaking that are not unreasonable in frequency or required effort. Nothing in this provision is intended to restrict or preclude you from, or otherwise influence you in, testifying fully and truthfully in legal, administrative, or any other proceedings involving the Company, as required by law or formal legal process. You acknowledge and agree that your cooperation under this section will not constitute continued employment or another service-providing relationship with respect to any post-termination vesting or exercisability of equity compensation or entitle you to any employee benefits (other than those referenced in this Agreement.)
8. Survival.
This Agreement shall survive the termination of your employment with the Company and shall not be deemed to limit any protection or remedy available to the Company pursuant to federal, District of Columbia, state, or local law.
9. Release.
By signing this Agreement, you acknowledge that in order to receive the Separation Pay under the Plan, you must execute the release agreement that is attached as Exhibit A hereto (the
4
“Release Agreement”) and the Release Agreement must become effective against you and irrevocable.
10. Miscellaneous.
(a) Governing Law; Venue; Jurisdiction. The Plan shall be construed under the laws of the District of Columbia, to the extent not preempted by federal law. The parties hereby irrevocably submit to the jurisdiction of the federal courts of the United States of America located in the District of Columbia, solely in respect of the interpretation and enforcement of the provisions of this Agreement and of the documents referred to in this Agreement, including the Release Agreement. Each of the parties irrevocably agrees that all claims in respect of the interpretation and enforcement of the provisions of the Plan, this Agreement, and the Release Agreement, or with respect to any such action or proceeding, shall be heard and determined in such federal court, and that the jurisdiction of such court with respect thereto shall be exclusive, except solely to the extent that such court lawfully decline to exercise such jurisdiction. Each of the parties hereby waives, and agrees not to assert, as a defense in any action, suit, or proceeding for the interpretation or enforcement hereof or of any such document that it is not subject to such jurisdiction. Each of the parties hereby waives, and agrees not to assert, to the maximum extent permitted by law, as a defense in any action, suit, or proceeding for the interpretation or enforcement hereof or of any such document that such action, suit, or proceeding may not be brought or is not maintainable in such court or that the venue thereof may not be appropriate or that this Agreement or any such document may not be enforced in or by such court. The parties hereby consent to and grant such court jurisdiction over the person of such parties and over the subject matter of any such dispute and agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 10(c) or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(b) Jury Trial Waiver. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THE PLAN, THIS AGREEMENT, OR THE RELEASE AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM, DEMAND, OR CAUSE OF ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE PLAN, THIS AGREEMENT, OR THE RELEASE AGREEMENT. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (1) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (2) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (3) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY; AND (4) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS IN THIS SECTION 10(b).
5
(c) Notices. Any notice delivered under this Agreement or the Release Agreement shall be deemed duly delivered three business days after it is sent by registered or certified mail, return receipt requested, postage prepaid, one business day after it is sent for next-business day delivery via a reputable nationwide or international overnight courier service, or immediately upon hand delivery, in each case to the address of the recipient set forth below:
To you:
At the most recent address in the personnel files of the Company
To the Company:
General Counsel
Federal Agricultural Mortgage Corporation
1999 K Street, N.W., 4th Floor
Washington, DC 20006
or to such other address as a party from time to time may designate by written notice to the other. Either party may change the address to which notices are to be delivered by giving notice of such change to the other party in the manner set forth in this Section 10(c).
(d) Successors and Assigns. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective, successors, heirs, personal representatives, and assigns. This subsection is not to be construed to permit you to assign your obligation to perform the duties of your employment hereunder. This subsection permits the Company the right to assign this Agreement to a successor entity.
(e) Rules of Professional Conduct. Nothing in this Agreement shall be deemed to limit or waive your professional duties and responsibilities under any rules of professional conduct that apply to you (the “Rules”), including, but not limited to, those arising from your service as a lawyer for the Company, its subsidiaries, and affiliates and including, but not limited to, duties and responsibilities relating to maintaining client confidences, limitations on the use of client information, and prohibitions on conflicts of interest. Nothing in this Agreement is intended to be or shall serve as a restriction in violation of such Rules relating to your right to practice law after employment with the Company ends.
[SIGNATURES APPEAR ON NEXT PAGE]
6
IN WITNESS WHEREOF, the parties have executed this Participation Agreement.
FEDERAL AGRICULTURAL MORTGAGE CORPORATION
By:
Name:
Title:
Date:
THE PARTICIPANT
Name:
Address:
Date:
7
Exhibit A
This General Release of all Claims (this “Release Agreement”) is entered into by [EXECUTIVE NAME] (the “Executive”) and the Federal Agricultural Mortgage Corporation, a federally-chartered instrumentality of the United States (the “Company”). 1
In consideration of the benefits provided under the Company’s Amended and Restated Executive Officer Severance Plan (the “Plan”), the Executive and the Company agree as follows:
1) Return of Property. The Executive confirms that he or she has complied with the Return of Property obligations in the agreement to which this Release Agreement is attached (the “Participation Agreement”) and has cancelled all accounts for his or her benefit, if any, in the Company’s name including, but not limited to, credit cards, telephone charge cards, cellular phone and/or wireless data accounts and computer accounts.
2) General Release and Waiver of Claims.
(a) Release. In consideration of the payments and benefits provided to the Executive under the Plan and after the opportunity to consult with counsel, the Executive and each of the Executive’s respective heirs, executors, administrators, representatives, agents, successors and assigns (collectively, the “Releasors”) hereby irrevocably and unconditionally release and forever discharge the Company and its subsidiaries and affiliates and each of their respective officers, employees, directors, shareholders and agents (“Releasees”) from any and all claims, actions, causes of action, rights, judgments, obligations, damages, demands, accountings or liabilities of whatever kind or character (collectively, “Claims”), including, without limitation, any Claims under any federal, state, local or foreign law, that the Releasors may have, or in the future may possess, arising out of (i) the Executive’s employment relationship with and service as an employee, officer or director of the Company, and the termination of such relationship or service, and (ii) any event, condition, circumstance or obligation that occurred, existed or arose on or prior to the date hereof; provided, however, that the Executive does not release, discharge or waive any rights to payments and benefits provided under the Plan that are contingent upon the execution by the Executive of this Release Agreement. The Executive understands and agrees that the Claims released in this Release Agreement include not only Claims presently known to him or her, but also all unknown or unanticipated Claims that would otherwise come within the scope of the released Claims. The Executive understands that he or she may hereafter discover facts different from what the Executive now believes to be true that, if known, could have materially affected his or her willingness to execute and the terms of this Release Agreement, but the Executive nevertheless waives and releases any Claims or rights based on different or additional facts.
(b) Specific Release of ADEA Claims. In further consideration of the payments and benefits provided to the Executive under the Plan, the Releasors hereby unconditionally
___________________
1. | The parties agree that the Company may revise the Release Agreement in light of additional statutes or claims so that the Company receives the benefit of the fullest legally permissible release of claims and may also change the timing, if required, to obtain such release. This footnote is part of the form of release and is to be removed only when the Company finalizes the Release Agreement for execution. |
A-1
release and forever discharge the Releasees from any and all Claims that the Releasors may have as of the date the Executive signs this Release Agreement arising under the Federal Age Discrimination in Employment Act of 1967, as amended, and the applicable rules and regulations promulgated thereunder (“ADEA”). By signing this Release Agreement, the Executive hereby acknowledges and confirms the following: (i) the Executive was advised by the Company in connection with the Executive’s termination to consult with an attorney of Executive’s choice prior to signing this Release Agreement and to have such attorney explain to the Executive the terms of this Release Agreement, including, without limitation, the terms relating to the Executive’s release of claims arising under ADEA; (ii) the Executive was given a period of not fewer than 21 days to consider the terms of this Release Agreement and to consult with an attorney of Executive’s choosing with respect thereto; and (iii) the Executive knowingly and voluntarily accepts the terms of this Release Agreement. The Executive also understands that the Executive has seven (7) days following the date on which he or she signs this Release Agreement within which to revoke the release contained in this paragraph, by providing the Company a written notice of revocation of the release and waiver contained in this paragraph, which notice shall be addressed to the Company’s General Counsel at the following address: Federal Agricultural Mortgage Corporation, 1999 K Street, N.W., 4th Floor, Washington, DC 20006.
(c) No Assignment. The Executive represents and warrants that he or she has not assigned any of the Claims being released under this Release Agreement.
(d) Exclusions. Notwithstanding the foregoing, this Release Agreement does not include and will not preclude: (1) Claims to vested benefits under any applicable retirement and/or pension plans or reimbursement of expenses (under and to the extent satisfying the applicable Company reimbursement policies); (2) rights under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”); (3) claims for unemployment compensation or for worker’s compensation; (4) rights to defense and indemnification, if any, from the Company (or from directors’ and officers’ insurance) for actions or inactions taken by the Executive in the course and scope of his or her employment with the Company, subsidiaries, and/or affiliates (or any period of transition or cooperation); or (5) any actions to enforce this Release Agreement or the Participation Agreement.
3) Proceedings. The Executive has not filed, and agrees not to initiate or cause to be initiated on the Executive’s behalf, any complaint, charge, claim or proceeding against the Releasees before any local, state, or federal agency, court or other body relating to the Executive’s employment or the termination of the Executive’s employment, other than with respect to the obligations of the Company to the Executive under the Plan (each, individually, a “Proceeding”), and agrees not to participate voluntarily in any Proceeding. The Executive waives any right the Executive may have to benefit in any manner from any relief (whether monetary or otherwise) arising out of any Proceeding.
4) Remedies. In the event the Executive initiates or voluntarily participates in any Proceeding, or if Executive fails to abide by any of the terms of this Release Agreement or the Executive’s post‑termination obligations contained in the Plan, or if the Executive revokes the ADEA release contained in Paragraph 2(b) of this Release Agreement within the seven‑day
A-2
period provided under Paragraph 2(b), the Company may, in addition to any other remedies it may have, reclaim any amounts paid to him under the Plan or terminate any benefits or payments that are subsequently due under the Plan, without waiving the release granted herein. The Executive acknowledges and agrees that the remedy at law available to the Company for breach of any of the Executive’s post‑termination obligations under the Plan or the Executive’s obligations under Paragraphs 2 and 3 of this Release Agreement would be inadequate and that damages flowing from such a breach may not readily be susceptible to being measured in monetary terms. Accordingly, the Executive acknowledges, consents, and agrees that, in addition to any other rights or remedies that the Company may have at law or in equity, the Company shall be entitled to seek a temporary restraining order or a preliminary or permanent injunction, or both, without bond or other security, restraining the Executive from breaching the Executive’s post-termination obligations under the Plan or the Executive’s obligations under Paragraphs 2 and 3 of this Release Agreement. Such injunctive relief in any court shall be available to the Company, in lieu of, or prior to or pending determination in, any arbitration proceeding. The Executive understands that by entering into this Release Agreement the Executive will be limiting the availability of certain remedies that the Executive may have against the Company and limiting also the Executive’s ability to pursue certain claims against the Company.
5) Severability Clause. In the event any provision or part of this Release Agreement is found to be invalid or unenforceable, only that particular provision or part so found, and not the entire Release Agreement, will be inoperative.
6) No Admission. Nothing contained in this Release Agreement will be deemed or construed as an admission of wrongdoing or liability on the part of the Company.
7) Governing Law; Venue; Jurisdiction; Jury Trial Waiver. Sections 7(a) and 7(b) of the Participation Agreement apply to this Release Agreement.
8) Notices. All notices or communications hereunder shall be made as set forth in Section 10(c) of the Participation Agreement.
9) Acknowledgements. The Executive acknowledges that he or she:
A-3
(a) | ; | |
(b) | understands that, in order for this Release Agreement to be effective, he or she may not sign it prior to the date of separation of employment with the Company but that if the Executive wishes to receive the benefits under the Plan, he or she must sign and return this Release Agreement prior to (i) the sixtieth (60th) day following his or her separation of employment or (ii) such earlier date as the Company specifies for such return; | |
(c) | ; | |
(d) | ; | |
(e) | understands that this Release Agreement is LEGALLY BINDING and by signing it he or she gives up certain rights; | |
(f) | has voluntarily chosen to enter into this Release Agreement and has not been forced or pressured in any way to sign it; | |
(g) | acknowledges and agrees that the benefits under the Plan are contingent on execution and nonrevocation of this Release Agreement, which releases all of the Executive’s claims against the Company and the Releasees, and KNOWINGLY AND VOLUNTARILY AGREES TO RELEASE the Company and the Releasees from any and all claims the Executive may have, known or unknown, in exchange for the potential severance protection the Executive has obtained by signing, and that these benefits are in addition to any benefit the Executive would have otherwise received if the Executive did not sign this Release; and | |
(h) | acknowledges that this Release Agreement does not waive any rights or claims that may arise after the Executive signs this Release Agreement. | |
IN WITNESS WHEREOF, the parties have executed this Release Agreement as of the date first set forth above.
A-4
FEDERAL AGRICULTURAL MORTGAGE CORPORATION
_________________________________
Name:
Title:
Date:
(to be dated at or after the close of business on the last day of Executive’s employment)
THE EXECUTIVE
_________________________________
Name:
Address:
Date:
(to be dated at or after the close of business on the last day of Executive’s employment)
A-5