8.    RESERVED

 

 

 

 

 

 

 

 

 

800 North Lindbergh Boulevard

 

 

 

 

 

 

 

 

(f)           The Executive and the Company acknowledge that there currently exists uncertainty with respect to interpretive issues under Section 409A of the Code and with respect to the tax treatment of employer provision of health care benefits.  The Executive hereby agrees that, prior to the occurrence of a Change of Control, the Company may, without consent from the Executive, make such changes to the Agreement as may be necessary or appropriate to avoid adverse tax consequences to the Executive pursuant to Section 409A of the Code or in respect of the provisions of Sections 4(a)(3) and 4(a)(4), while not substantially reducing the aggregate value to the Executive of the payments and benefits to, or otherwise adversely affecting the rights of, the Executive under the Agreement.

 

(g)           The Agreement is intended to comply with the requirements of Section 409A of the Code or an exemption or exclusion therefrom and, with respect to amounts that are subject to Section 409A of the Code, shall in all respects be administered in accordance with Section 409A of the Code.  Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A

 

of the Code.  In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement.  All reimbursements and in-kind benefits provided under this Agreement that constitute deferred compensation within the meaning of Section 409A of the Code shall be made or provided in accordance with the requirements of Section 409A of the Code, including, without limitation, that (1) in no event shall reimbursements by the Company under this Agreement be made later than the end of the calendar year next following the calendar year in which the applicable fees and expenses were incurred, provided, that the Executive shall have submitted an invoice for such fees and expenses at least 10 days before the end of the calendar year next following the calendar year in which such fees and expenses were incurred; (2) the amount of in-kind benefits that the Company is obligated to pay or provide in any given calendar year (other than medical reimbursements described in Treas. Reg. § 1.409A-3(i)(1)(iv)(B)) shall not affect the in-kind benefits that the Company is obligated to pay or provide in any other calendar year; (3) the Executive’s right to have the Company pay or provide such reimbursements and in-kind benefits may not be liquidated or exchanged for any other benefit; and (4) in no event shall the Company’s obligations to make such reimbursements or to provide such in-kind benefits apply later than the Executive’s remaining lifetime (or if longer, through the 20th anniversary of the date of the Change of Control). Notwithstanding anything in this Agreement to the contrary, if the Executive is a “specified employee” within the meaning of Section 409A of the Code and Treas. Reg. § 1.409A-1(i) (or successor provisions) on his Date of Termination, then, to the extent required by Section 409A of the Code and Treas. Reg. § 1.409A-3(i)(2) (or successor provisions), payments or benefits hereunder, if any, of “deferred compensation” within the meaning of Section 409A of the Code that would be paid or provided to the Executive before the six-month anniversary of the Executive’s Date of Termination shall be delayed until such six-month anniversary.  

 

 

“Accounting Firm” shall mean a nationally recognized certified public accounting firm that is selected by the Company for purposes of making the applicable determinations hereunder and is reasonably acceptable to the Executive, which firm shall not, without the Executive’s consent, be a firm serving as accountant or auditor for the individual, entity or group effecting the Change of Control.

 

 

 

 

 

“Agreement Payments” means Payments paid or payable pursuant to this Agreement.

 

 

“Annual Incentive” has the meaning set forth in Section 2(b)(2).

 

“Average Pre-Change-of-Control Annual Incentive Bonus” means an annual incentive bonus amount based upon the Executive’s average annual incentive bonuses earned for fiscal years beginning before the date of the Change of Control under the Company’s annual incentive program as in effect from time to time, calculated as follows.  If, as of the date of the Change of Control, the Executive has been employed by the Company and the Affiliated Companies for at least the most recent three full fiscal years ending on or before the date of the Change of Control, and was eligible to earn an annual incentive bonus under such programs for each such fiscal year, then the Average Pre-Change-of-Control Annual Incentive Bonus means the average of the annual incentive bonuses earned by the Executive for each of such fiscal years.  If, as of the date of the Change of Control, the Executive has been employed by the Company and the Affiliated Companies for less than the most recent three full fiscal years ending on or before the date of the Change of Control, or was not eligible to earn an annual incentive bonus under such programs for each such fiscal year, then the Average Pre-Change-of-Control Annual Incentive Bonus means the average of the annual incentive bonuses earned by the Executive for each of such fiscal years for which the Executive was eligible to earn such an annual incentive bonus.  If the Executive earned an annual incentive bonus under such programs for a period of less than 12 months, the amount of such annual bonus shall be annualized for purposes of determining the Average Pre-Change-of-Control Annual Incentive Bonus.  If the Executive was not eligible to earn such an annual incentive bonus for any fiscal year ending on or before the date of the Change of Control, then the Average Pre-Change-of-Control Annual Incentive Bonus shall be deemed to equal the Executive’s target annual incentive bonus as in effect immediately before the date of the Change of Control.

 

 

 

 

 

(a)           the acquisition by any Person of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30 percent or more of either (1) the then-outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (2) the combined voting power of the then-outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, that for purposes of this subsection (a), the following acquisitions shall not constitute a Change of Control:  (A) any acquisition directly from the Company; (B) any acquisition by the Company or a Subsidiary of the Company; (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or a Subsidiary of the Company; (D) any passive acquisition as a result of a Company repurchase of outstanding securities (it being understood that a subsequent active acquisition by the applicable Person shall constitute a Change of Control, if immediately thereafter such Person holds the requisite percentage of Outstanding Company Common Stock or Outstanding Company Voting Securities); or (E) any acquisition pursuant to a transaction that complies with clauses (1), (2) and (3) of subsection (c) of this definition;

 

(b)           individuals who, as of the date of the initial public offering of the common stock of the Company, constitute the Board (the “Incumbent Board”), cease for any reason to constitute at least a majority of the Board; provided, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company’s shareowners, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such

 

individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board;

 

(c)           consummation of a reorganization, merger, statutory share exchange, consolidation or similar transaction involving the Company or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Company or the acquisition of assets or stock of another entity (a “Business Combination”), in each case, unless, following such Business Combination, (1) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50 percent of, respectively, the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent securities) and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors (or, for a non-corporate entity, equivalent governing body), as the case may be, of the entity resulting from such Business Combination (including without limitation an entity that as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (2) no Person (excluding the Company, a Subsidiary of the Company, any entity resulting from a Business Combination or any employee benefit plan (or related trust) thereof) beneficially owns, directly or indirectly, 30 percent or more of the then-outstanding shares of common stock of the entity resulting from such Business Combination or 30 percent or more of the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors of such entity, except to the extent that such ownership existed prior to the Business Combination and (3) at least a majority of the members of the board of directors (or, for a non-corporate entity, equivalent governing body), of the entity resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination;

 

(d)           approval by the shareowners of the Company of a complete liquidation or dissolution of the Company.

 

 

 

 

 

 

 

 

 

 

 

 

“Net After-Tax Receipt” shall mean the present value (as determined in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on the Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to the Executive’s taxable income for the immediately preceding taxable year, or such other rate(s) as the Accounting Firm determined to be likely to apply to the Executive in the relevant tax year(s).

 

 

 

 

 

“Overpayment” has the meaning set forth in Section 7(c).

 

 

 

 

 

 

“Release Deadline” means the 50th day following the Date of Termination.

 

 

 

“Safe Harbor Amount” means (x) 3.0 times the Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code, minus (y) $1.00.

 

“Section 280G Change of Control” means an event in respect of the Company that is described in Section 280G(b)(2)(A)(i) of the Code.

 

 

 

 

 

 

 

“Underpayment” has the meaning set forth in Section 7(c).

 

 

	EXECUTIVE   _____________________________
	MONSANTO COMPANY
	By:
	Steven C. Mizell, Executive Vice President, Human Resources
	Date: _____________________, 20__

 

 

 

(c) Claims Released:  I represent that I have not been the victim of age discrimination or any other type of discrimination or wrongful act in connection with my employment with the Company.  Consistent with this, I release the Company, its current and former subsidiaries and affiliates, and their employees or agents and related parties from all known or unknown claims, if any, that I presently could have arising out of my employment with the Company or the termination of my employment, including, without limitation, any rights or claims arising under any statute or regulation, including the Age Discrimination in Employment Act of 1967, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Americans with Disabilities Act of 1990, or the Family and Medical Leave Act of 1993, each as amended, any state or local Fair Employment Practices Act, or any other federal, state or local law, regulation, ordinance or common law, or under any policy, agreement, contract, understanding or promise, written or oral, formal or informal, except (1) claims for payments and benefits to which I am entitled under the attached Change-of-Control Employment Security Agreement, (2) claims for the Other Benefits (as defined in the attached Change-of-Control Employment Security Agreement) identified on Schedule I hereto, (3) claims in my capacity as a shareowner, and (4) claims under the director and officer indemnification and insurance programs and policies of the Company and its affiliates.

(e) Acknowledgements:  I am executing this Release of my own volition.  I have been advised to consult with an attorney of my choice prior to signing this Release.  I understand and agree that I have the right and have been given the opportunity to review this Release with an attorney of my choice should I so desire.  I also agree that I have entered into this Release freely and voluntarily.  I have been given at least [21] [45] calendar days to consider the terms of this Release[, along with the information provided on Attachment A

 

hereto], although I may sign it sooner if I wish.  Furthermore, once I have signed this Release, I have seven additional days to revoke this Release and must do so by writing to [INSERT NAME/ADDRESS].  This Release shall not be effective, and no payments shall be due under Section 4(a) of the Change-of-Control Employment Security Agreement, until the eighth day after I shall have executed this Release and returned it to the Company, assuming that I have not revoked this Release prior to such date.

 

 

 

Acknowledged and Agreed:

On behalf of Monsanto Company

 

 

 

 

Appendix A - 24