CHANGE IN CONTROL AGREEMENT
Exhibit 10.7
This CHANGE IN CONTROL AGREEMENT (the
“Agreement”) is entered into
on ,
2010 (the “Effective Date”) by and
between Celanese Corporation (the
“Company”) and
<<NAME>> (the
“Executive”).
The Company considers it essential to xxxxxx the continued
employment of key management personnel. The Board of Directors
of the Company (the “Board”) believes
that it is in the best interests of the Company and its
stockholders to assure the Company will have the continued
dedication of Executive, notwithstanding the possibility, threat
or occurrence of a Change in Control. The Board believes it is
imperative to diminish the inevitable distraction of Executive
by virtue of the personal uncertainties and risks created by a
pending or threatened Change in Control and to encourage
Executive’s full attention and dedication to the Company
currently and in the event of any threatened or pending Change
in Control. The Company also requests, and the Executive desires
to give the Company, certain assurances with regard to the
protection of Confidential Information and Intellectual Property
of the Company and its Affiliates. Therefore, the Company and
the Executive have entered into this Agreement.
In consideration of the premises and mutual covenants contained
herein and for other good and valuable consideration, the
parties agree as follows:
1. Definitions:
a. “Affiliate” shall mean,
when used with respect to any person or entity, any other person
or entity which controls, is controlled by or is under common
control with the specified person or entity. As used in the
immediately preceding sentence, the term “control”
(with correlative meanings for “controlled by” and
“under common control with”) shall mean, with respect
to any entity, the ownership, directly or indirectly, of fifty
percent (50%) or more of the outstanding equity interests in
such entity.
b. “Beneficial Owner” shall
have the meaning given such term in
Rule 13d-3
of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”).
c. “Cause” shall mean
(i) Executive’s willful failure to perform
Executive’s duties hereunder (other than as a result of
total or partial incapacity due to physical or mental illness)
for a period of thirty (30) days following written notice
by the Company to Executive of such failure,
(ii) conviction of, or a plea of nolo contendere to,
(x) a felony under the laws of the United States or any
state thereof or any similar criminal act in a jurisdiction
outside the United States or (y) a crime involving moral
turpitude, (iii) Executive’s willful malfeasance or
willful misconduct which is demonstrably injurious to the
Company or its Affiliates, (iv) any act of fraud by
Executive, (v) any material violation of the Company’s
code of conduct, (vi) any material violation of the
Company’s policies concerning harassment or discrimination,
(vii) Executive’s conduct that causes material harm to
the business reputation of the Company or its Affiliates, or
(viii) Executive’s breach of the provisions of
Sections 7 (Confidentiality; Intellectual Property) or 8
(Non-Competition; Non-Solicitation) of this Agreement.
d. A “Change In Control” will
be deemed to have occurred for purposes hereof, upon any one of
the following events: (a) any person (within the meaning of
Sections 13(d) and 14(d) of the Exchange Act), other than
the Company (including its subsidiaries, directors, and
executive officers) has become the Beneficial Owner of thirty
percent (30%) or more of the combined voting power of the
Company’s then outstanding common stock or equivalent in
voting power of any class or classes of the Company’s
outstanding securities ordinarily entitled to vote in elections
of directors (“Voting Securities”)
(other than as a result of an issuance of securities by
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the Company approved by Incumbent Directors, or open market
purchases approved by Incumbent Directors at the time the
purchases are made); (b) individuals who constitute the
Board as of the Effective Date (the “Incumbent
Directors”) have ceased for any reason to
constitute at least a majority thereof, provided that any person
becoming a director after the Effective Date whose election, or
nomination for election by the Company’s stockholders, was
approved by a majority of the directors comprising the Incumbent
Board, either by a specific vote or by approval of the proxy
statement of the Company in which such person is named as a
nominee for director without objection to such nomination shall
be an Incumbent Director; provided, however, that no individual
initially elected or nominated as a director of the Company as a
result of an actual or threatened election contest with respect
to the election or removal of directors (“Election
Contest”) or other actual or threatened
solicitation of proxies or consents by or on behalf of any
Person other than the Board (“Proxy
Contest”), including by reason of any agreement
intended to avoid or settle any Election Contest or Proxy
Contest, shall be deemed an Incumbent Director; (c) the
stockholders of the Company approve a reorganization, merger,
consolidation, statutory share exchange or similar form of
corporate transaction, or the sale or other disposition of all
or substantially all of the Company’s assets (a
“Transaction”), unless immediately
following such Transaction, (i) all or substantially all of
the Persons who were the Beneficial Owners of the Voting
Securities outstanding immediately prior to such Transaction are
the Beneficial Owners of more than 50% of the combined voting
power of the then outstanding voting securities entitled to vote
generally in the election of directors of the entity resulting
from such Transaction (including, without limitation, an entity
which as a result of such Transaction owns the Company or all or
substantially all of the Company’s assets or stock either
directly or through one or more subsidiaries, the
“Surviving Entity”) in substantially the
same proportions as their ownership, immediately prior to such
Transaction, of the Voting Securities, (ii) no Person is
the Beneficial Owner of 30% or more of the combined voting power
of the then outstanding voting securities entitled to vote
generally in the election of directors of the Surviving Entity,
and (iii) at least a majority of the members of the board
of directors of the Surviving Entity are Incumbent Directors; or
(d) approval by the Company’s stockholders of a
complete liquidation and dissolution of the Company.
However, if in any circumstance in which the foregoing
definition would be operative and with respect to which the
income tax under Section 409A of the Code would apply or be
imposed, but where such tax would not apply or be imposed if the
meaning of the term “Change in Control” met the
requirements of Section 409A(a)(2)(A)(v) of the Code, then
the term “Change in Control” herein shall mean, but
only for the transaction so affected, a “change in control
event” within the meaning of Treas. Reg.
§ 1.409A — 3(i)(5).
e. “Change In Control Protection
Period” shall mean that period commencing on the
date that the Company or a third party publicly announces an
event that, if consummated, would constitute a Change In Control
and ending (i) on the date that the circumstances giving
rise to the announcement of the event are abandoned or
withdrawn, or (ii) if such transaction is consummated, two
years after the Change In Control.
f. “COBRA” shall mean those
provisions of the Consolidated Omnibus Budget Reconciliation Act
of 1986, as amended, related to continuation of group health and
dental plan coverage as set forth in Code section 4980B.
g. “Code” shall mean the
Internal Revenue Code of 1986, as amended from time to time.
h. “Competitive Business”
shall mean businesses that compete with products and
services offered by the Company in those countries where the
Company or any of its Affiliates manufactures, produces, sells,
leases, rents, licenses or otherwise provides its products or
services during the two (2) years preceding the Termination
Date (including, without limitation, businesses which the
Company or its Affiliates have specific plans to conduct in the
future that were disclosed or made available to Executive),
provided that, if Executive’s duties were limited to
particular product lines or businesses during such period, the
Competitive Business shall be limited to those product lines or
businesses in those countries for which the Executive had such
responsibility.
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i. “Confidential Information”
shall mean any non-public, proprietary or confidential
information, including without limitation trade secrets,
know-how, research and development, software, databases,
inventions, processes, formulae, technology, designs and other
intellectual property, information concerning finances,
investments, profits, pricing, costs, products, services,
vendors, customers, clients, partners, investors, personnel,
compensation, benefits, recruiting, training, advertising,
sales, marketing, promotions, government and regulatory
activities and approvals concerning the past, current or future
business, activities and operations of the Company, its
Affiliates
and/or any
third party that has disclosed or provided any of same to the
Company or its Affiliates on a confidential basis.
“Confidential Information” also includes any
information designated as a trade secret or proprietary
information by operation of law or otherwise, but shall not be
limited by such designation. “Confidential
Information” shall not include any information that is
(i) generally known to the industry or the public other
than as a result of Executive’s breach of this covenant;
(ii) made legitimately available to Executive by a third
party without breach of any confidentiality obligation; or
(iii) required by law to be disclosed; provided that
Executive shall give prompt written notice to the Company of
such requirement, disclose no more information than is so
required, and cooperate with any attempts by the Company to
obtain a protective order or similar treatment.
j. “Controlled Group” shall
mean all corporations or business entities that are, along with
the Company, members of a controlled group of corporations or
businesses, as defined in Code Sections 414(b) and 414(c),
except that the language “at least 50 percent” is
used instead of “at least 80 percent” in applying
the rules of Code Sections 414(b) and 414(c).
k. “Fiscal Year” shall mean
the fiscal year of the Company.
l. “Good Reason” shall mean
any of the following conditions which occurs without the consent
of the Executive: (i) a material diminution in the
Executive’s base salary or annual bonus opportunity;
(ii) a material diminution in the Executive’s
authority, duties, or responsibilities (including status,
offices, titles and reporting requirements); (iii) a
material change in the geographic location at which the
Executive must perform his duties; (iv) failure of the
Company to pay compensation or benefits when due, or
(v) any other action or inaction that constitutes a
material breach by the Company of this Agreement. The conditions
described above will not constitute “Good Reason”
unless the Executive provides written notice to the Company of
the existence of the condition described above within ninety
(90) days after the initial existence of such condition. In
addition, the conditions described above will not constitute
“Good Reason” unless the Company fails to remedy the
condition within a period of thirty (30) days after receipt
of the notice described in the preceding sentence. If the
Company fails to remedy the condition within the period referred
to in the preceding sentence, Executive may terminate his
employment with the Company for “Good Reason” within
in the next thirty (30) days following the expiration of
the cure period.
m. “Notice of Termination”
shall mean a notice which shall indicate the general
reasons for the termination employment and the circumstances
claimed to provide a basis for termination of employment or
other Separation of Service under the provision so indicated.
n. “Person” shall mean any
person, firm, partnership, joint venture, association,
corporation or other business organization, entity or enterprise
whatsoever.
o. “Specified Employee” shall
have the meaning and shall be determined in the manner set forth
in the Celanese Americas Supplemental Retirement Pension Plan.
p. “Restricted Period” shall
be (i) one year from the Termination Date in the event of a
Separation from Service that occurs during the Service Term (as
defined hereinafter) other than in the case of an
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involuntary Separation from Service without Cause, (ii) in
the case of an involuntary Separation from Service without Cause
during the Service Term, an amount of time in whole months equal
to the number of months’ salary the Company agrees to
provide to Executive in severance, whether paid over time or in
a lump sum; and (iii) eighteen (18) months from the
Termination Date in the event of a Separation from Service
following a Change In Control where Executive receives the
Change In Control Payment (as defined hereinafter).
q. “Separation from Service”
shall mean an event after which the Executive shall no longer
provide services to the members of the Controlled Group, whether
voluntarily or involuntarily as determined by the Committee (as
hereafter defined) in accordance with Treas. Reg.
§ 1.409A-1(h)(1). A Separation from Service shall
occur when Executive has experienced a termination of employment
from the members of the Controlled Group. Executive shall be
considered to have experienced a termination of employment when
the facts and circumstances indicate that the Executive and the
Company reasonably anticipate that either (i) no further
services will be performed for the members of the Controlled
Group after a certain date, or (ii) that the level of bona
fide services the Executive will perform for the members of the
Controlled Group after such date (whether as an employee or as
an independent contractor) will permanently decrease to no more
than 20% of the average level of bona fide services performed by
such Executive (whether as an employee or an independent
contractor) over the immediately preceding
36-month
period (or the full period of services to the members of the
Controlled Group if the Executive has been providing services to
the members of the Controlled Group less than 36 months).
If Executive is on military leave, sick leave, or other bona
fide leave of absence, the employment relationship between the
Executive and the members of the Controlled Group shall be
treated as continuing intact, provided that the period of such
leave does not exceed 6 months, or if longer, so long as
the Executive retains a right to reemployment with the members
of the Controlled Group under an applicable statute or by
contract. If the period of a military leave, sick leave, or
other bona fide leave of absence exceeds 6 months and the
Executive does not retain a right to reemployment under an
applicable statute or by contract, the employment relationship
shall be considered to be terminated for purposes of this
Agreement as of the first day immediately following the end of
such 6-month
period. In applying the provisions of this paragraph, a leave of
absence shall be considered a bona fide leave of absence only if
there is a reasonable expectation that the Executive will return
to perform services for any members of the Controlled Group.
Notwithstanding the foregoing provisions, if Executive provides
services for the Company as both an employee and as a
non-employee director, to the extent permitted by Treas. Reg.
§ 1.409A-1(h)(5) the services provided by such
Executive as a non-employee director shall not be taken into
account in determining whether the Executive has experienced a
Separation from Service.
r. “Target Bonus” shall mean
the target bonus for Executive under any annual bonus plan in
effect from time to time as determined by the Compensation
Committee (the “Committee”) or the Board.
s. “Termination Date” shall mean
the date upon which a Separation from Service with respect to an
Executive occurs.
2. Term of Change In Control Agreement.
a. This Agreement shall be for an initial term (the
“Initial Term”) of two years and shall
continue to renew for consecutive two year terms thereafter (a
“Renewal Term”), unless either party
shall give written notice to the other (a “Notice of
Non-Renewal”) that such agreement shall not renew
at least ninety (90) days prior to the expiration of the
Initial Term or Renewal Term then in effect. Notwithstanding the
foregoing, the Company may not give a Notice of Non-Renewal
during the Change In Control Protection Period.
b. This Agreement, except those provisions which
shall survive under Section 11(k), shall terminate upon the
termination of Executive’s employment for any reason other
than the termination of Executive’s employment during the
Change In Control Protection Period (x) by the Company
without Cause or (y) by the
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Executive with Good Reason. No payment under this Agreement will
be due to Executive upon termination of Executive’s
employment for any reason other than as specified in (x) or
(y) above.
3. Executive’s Incumbent Position.
a. Unless notified otherwise by the Chief Executive
Officer of the Company or the Board, Executive shall serve as
<<Position Title>>
(“Executive’s Incumbent Position”). In
such position, Executive shall have such duties and authority as
shall be determined from time to time by the Chief Executive
Officer and the Board. If requested, Executive shall also serve
as a member of the Board without additional compensation. The
period during which the Executive shall be employed by the
Company shall be called the “Service
Term.”
b. Except as provided in Section 5,
(i) either Company or Executive may terminate the
employment relationship at any time, with or without Cause or
Good Reason, (ii) this Agreement shall not be construed as
giving the Executive any right to be retained in the employ of
the Company or its Affiliates, (iii) the Company may at any
time terminate the Executive free from any liability of any
claim under this Agreement, except as expressly provided herein;
and (iv) the Company may demote Executive at any time in
its absolute and sole discretion without liability to the
Executive.
c. During the Service Term, Executive will devote
Executive’s full business time and best efforts to the
performance of Executive’s duties hereunder and will not
engage in any other business, profession or occupation for
compensation or otherwise which would conflict or interfere with
the rendition of such services either directly or indirectly,
without the prior written consent of the Board; provided that
nothing herein shall preclude Executive, (i) subject to the
prior approval of the Board, from accepting appointment to or
continuing to serve on any board of directors or trustees of any
business corporation or any charitable organization or
(ii) from participating in charitable activities or
managing personal investments; provided in each case, and in the
aggregate, that such activities do not conflict or interfere
with the performance of Executive’s duties hereunder or
conflict with Sections 7 or 8. Executive shall promote the
goodwill of the Company with its employees, customers,
stockholders, vendors, and the general public. During the
Service Term, reasonable business expenses incurred by Executive
in the performance of Executive’s duties hereunder and to
support the goodwill and business relationships of the Company
shall be reimbursed by the Company in accordance with Company
policies.
4. Obligations of the Company upon Change In
Control with Respect to Long-Term Incentive Awards and Deferred
Compensation.
The effect of a change in control on any long-term incentive
awards (cash or equity) or deferred compensation previously
granted to the Executive under the 2008 Deferred Compensation
Plan, 2004 Stock Incentive Plan or the 2004 Deferred
Compensation Plan, as amended, (the “Long-Term
Incentive Awards”) shall be governed by the terms
and conditions of the applicable individual award agreements or
deferral agreements and the Celanese Corporation 2008 Deferred
Compensation Plan, the 2004 Stock Incentive Plan or the 2004
Deferred Compensation Plan, as amended (collectively, the
“Long-Term Incentive Award Agreements”),
and shall not be governed by this Agreement.
5. Termination of Employment Connected with a
Change In Control.
a. Upon Executive’s Separation from Service
during the Change In Control Protection Period, Executive shall
receive the Change In Control Payment if and only if the
following conditions occur:
(i) The Change In Control is consummated;
(ii) Executive is employed in the Executive Incumbent
Position or some substantially equivalent or higher position for
the Company as of the commencement of the Change In Control
Protection Period;
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(iii) Executive’s employment is terminated either by
the Company without Cause or by the Executive with Good Reason
such that a Separation from Service occurs;
(iv) Within fifty-three (53) days after both
conditions in Sections 5(a)(i) and 5(a)(iii), or at the
expiration of twenty-one (21) days following the
presentation of the release, Executive executes a release of all
claims, known or unknown, against the Company, its Affiliates,
and their respective agents in a form satisfactory to the
Company similar to that attached hereto as Exhibit A and
does not timely revoke such release before the expiration of
seven days following his or her execution of the
release; and
(v) Within fifty-three (53) days after both conditions
in Sections 5(a)(i) and 5(a)(iii), Executive reaffirms in
writing in a manner satisfactory to the Company his or her
obligations under Sections 7 and 8 of this Agreement.
b. The “Change In Control Payment”
shall be equal to [two (in the case of an SL1 or
SL2)/one (in the case of an SL3)] (2) times the sum of
(i) Executive’s then current annualized base salary;
and (ii) the higher of (x) Executive’s Target
Bonus in effect on the last day of the Fiscal Year that ended
immediately prior to the year in which the Termination Date
occurs, or (y) the average of the cash bonuses paid by the
Company to Executive for the three Fiscal Years preceding the
Termination Date.
c. If the Executive is a Specified Employee on the
Executive’s Termination Date, the Change In Control Payment
shall be paid in a single lump sum to Executive six
(6) months and one day after the Executive’s
Termination Date, together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code. If the Executive is not
a Specified Employee on the Executive’s Termination Date,
the Severance Payment shall be paid in a single lump sum to the
Executive within thirty (30) days of the Executive’s
Termination Date.
d. Provided that (i) all of the conditions in
Section 5(a) are met, (ii) Executive makes a timely
COBRA election, and (iii) Executive has complied in all
material respects with regard to the obligations of
Sections 7 and 8 of this Agreement, if the Executive timely
remits to the Company the applicable “COBRA” premiums
for such coverage, the Company will continue to provide group
health and dental coverage under the Company’s medical plan
for Executive and his or her dependents during the Restricted
Period; and will reimburse Executive for all premiums paid by
Executive for such continued coverage. Such reimbursements will
be made within thirty (30) days after Executive’s
payment of such premiums (or submission of a request for
reimbursement and satisfactory proof of such payment) but in no
event later than on or before the last day of the
Executive’s tax year following the tax year in which the
expense was incurred. The amount of COBRA premiums and health
and dental expenses eligible for reimbursement during
Executive’s tax year may not affect the COBRA premiums and
health and dental expenses eligible for reimbursement in any
other tax year.
e. Adjustment to Payments.
(i) In the event that any amount or benefit paid or
distributed to Executive pursuant to this Agreement
and/or any
amounts or benefits otherwise paid or distributed to Executive
by the Company that are treated as parachute payments under
Section 280G of the Code (such payments, collectively, the
“Covered Payments”), would be subject to the
tax imposed under Section 4999 of the Code or any similar
tax that may hereafter be imposed (the “Excise
Tax”), then the Covered Payments shall be reduced or
eliminated so that the present value of all Covered Payments
(calculated in accordance with Section 280G of the Code and
the regulations thereunder), in the aggregate, equals the Safe
Harbor Amount. The “Safe Harbor Amount” is
equal to 2.99 times the Employee’s “base amount”
(within the meaning of Section 280G(b)(3) of the Code). The
Company shall reduce or eliminate the Covered Payments by first
reducing or eliminating the portion of the Covered Payments
which are not payable in cash and then by reducing or
eliminating cash payments, in each case in reverse order
beginning with payments or benefits which are to be paid the
farthest in time from the determination.
(ii) All determinations required to be made under
subsection (e)(i), including whether and when an adjustment to
any Covered Payments is required and, if applicable, which
Covered Payments are to be
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so adjusted, shall be made by a public accounting firm appointed
by the Company or tax counsel selected by such accounting firm
(the “Accountants”). All fees and expenses of
the Accountants shall be borne solely by the Company. Any
determination by the Accountants shall be binding upon the
Company and Executive.
f. Notwithstanding any provision of this Agreement to
the contrary, if Executive is a Specified Employee and if any
payment under this Agreement provides for a “deferral of
compensation” within the meaning of Treasury Regulation
§ 1.409A-1(b) and if such payment would otherwise
occur before the date that is six (6) months after the
Executive’s Termination Date, then such payment shall be
delayed and shall occur on the date that is six (6) months
and one (1) day after the Termination Date (or, if earlier,
the date of the Executive’s death), together with interest
at the rate provided in Section 1274(b)(2)(B) of the Code.
6. Exclusivity of Benefits. Executive
acknowledges that this Agreement supercedes and replaces all
prior agreements or understandings Executive may have with the
Company with respect to compensation or benefits that may become
payable in connection with or as a result of a change in control
of the Company, whether or not such change in control
constitutes a Change In Control, including any provisions
contained in any employment agreement, offer letter or change in
control agreement, except with respect to any Long-Term
Incentive Awards which shall be governed by the terms of the
Long-Term Incentive Award Agreements. This Agreement also
describes all payments and benefits that the Company shall be
obligated to provide to Executive upon Executive’s
Separation from Service during a Change In Control Protection
Period and shall constitute Executive’s agreement to waive
any rights to payment under the Celanese Americas Separation Pay
Plan, any similar or successor plan adopted by the Company, and
any other term of employment contained in any employment
agreement, offer letter, change in control agreement or
otherwise (other than benefits to which
he/she may
be entitled, if any: (i) under any Celanese plan qualified
under Section 401(a) of the Internal Revenue Code,
including the Celanese Americas Retirement Pension Plan and
Celanese Americas Retirement Savings Plan; and (ii) under
the 2008 Celanese Deferred Compensation Plan) to the extent that
the circumstances giving right to such right to payment would
constitute a Separation of Service during a Change In Control
Protection Period.
7. Confidentiality; Intellectual Property.
a. Confidentiality.
(i) Based upon the assurances given by the Executive in
this Agreement, the Company will provide Executive with access
to its Confidential Information. Executive hereby reaffirms that
all Confidential Information received by Executive prior to the
termination of this Agreement is the exclusive property of the
Company and Executive releases any individual claim to the
Confidential Information.
(ii) Executive will not at any time (whether during or
after Executive’s employment with the Company)
(x) retain or use for the benefit, purposes or account of
Executive or any other Person; or (y) disclose, divulge,
reveal, communicate, share, make available, transfer or provide
access to any Person outside the Company (other than its
professional advisers who are bound by confidentiality
obligations), any Confidential Information without the prior
written authorization of the Board.
(iii) Upon termination of Executive’s employment with
the Company for any reason, Executive shall (x) cease and
not thereafter commence use of any Confidential Information or
intellectual property (including without limitation, any patent,
invention, copyright, trade secret, trademark, trade name, logo,
domain name or other source indicator) owned or used by the
Company or its Affiliates; (y) immediately destroy, delete,
or return to the Company, at the Company’s option, all
originals and copies in any form or medium (including memoranda,
books, papers, plans, computer files, letters and other data) in
Executive’s possession or control (including any of the
foregoing stored or located in Executive’s office, home,
laptop or other computer, whether or not Company property) that
contain Confidential Information or otherwise relate to the
business of the Company or its Affiliates, except that Executive
may retain only those portions of any personal notes, notebooks
and diaries that
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do not contain any Confidential Information; and (z) notify
and fully cooperate with the Company regarding the delivery or
destruction of any other Confidential Information of which
Executive is or becomes aware.
(iv) If Executive has previously entered into any
confidentiality or non-disclosure agreements with any former
employer, Executive hereby represents and warrants that such
confidentiality
and/or
non-disclosure agreement or agreements have been fully disclosed
and provided to the Company prior to commencing employment with
the Company.
b. Intellectual Property.
(i) If Executive has created, invented, designed,
developed, contributed to or improved any works of authorship,
inventions, intellectual property, materials, documents or other
work product (including without limitation, research, reports,
software, databases, systems, applications, presentations,
textual works, content, or audiovisual materials)
(“Works”), either alone or with third
parties, prior to Executive’s employment by the Company,
that are relevant to or implicated by such employment
(“Prior Works”), Executive hereby grants
the Company a perpetual, non-exclusive, royalty-free, worldwide,
assignable, sublicensable license under all rights and
intellectual property rights (including rights under patent,
industrial property, copyright, trademark, trade secret, unfair
competition and related laws) therein for all purposes in
connection with the Company’s current and future business.
A list of all such Works as of the date hereof is attached
hereto as Exhibit B.
(ii) If Executive creates, invents, designs, develops,
contributes to or improves any Works, either alone or with third
parties, at any time during Executive’s employment by the
Company and within the scope of such employment
and/or with
the use of any of the Company resources (“Company
Works”), Executive shall promptly and fully
disclose same to the Company and hereby irrevocably assigns,
transfers and conveys, to the maximum extent permitted by
applicable law, all rights and intellectual property rights
therein (including rights under patent, industrial property,
copyright, trademark, trade secret, unfair competition and
related laws) to the Company to the extent ownership of any such
rights does not vest originally in the Company.
(iii) Executive agrees to keep and maintain adequate and
current written records (in the form of notes, sketches,
drawings, and any other form or media requested by the Company)
of all Company Works. The records will be available to and
remain the sole property and intellectual property of the
Company at all times.
(iv) Executive shall take all requested actions and execute
all requested documents (including any licenses or assignments
required by a government contract) at the Company’s expense
(but without further remuneration) to assist the Company in
validating, maintaining, protecting, enforcing, perfecting,
recording, patenting or registering any of the Company’s
rights in the Prior Works and Company Works. If the Company is
unable for any other reason to secure Executive’s signature
on any document for this purpose, then Executive hereby
irrevocably designates and appoints the Company and its duly
authorized officers and agents as Executive’s agent and
attorney in fact, to act for and in Executive’s behalf and
stead to execute any documents and to do all other lawfully
permitted acts in connection with the foregoing.
(v) Executive shall not improperly use for the benefit of,
bring to any premises of, divulge, disclose, communicate,
reveal, transfer or provide access to, or share with the Company
any confidential, proprietary or non-public information or
intellectual property relating to a former employer or other
third party without the prior written permission of such third
party. Executive hereby indemnifies, holds harmless and agrees
to defend the Company and its officers, directors, partners,
employees, agents and representatives from any breach of the
foregoing covenant. Executive shall comply with all relevant
policies and guidelines of the Company, including regarding the
protection of confidential information and intellectual property
and potential conflicts of interest. Executive acknowledges that
the Company may amend any such policies and guidelines from time
to time, and that Executive remains at all times bound by their
most current version.
c. In the event Executive leaves the employ of the
Company, Executive hereby grants consent to notification by the
Company to any subsequent employer about Executive’s rights
and obligations under this Agreement.
8
8. Non-Competition; Non-Solicitation.
a. Executive acknowledges and recognizes the highly
competitive nature of the businesses of the Company and its
Affiliates and accordingly agrees as follows:
(i) During the Service Term and for the Restricted Period,
Executive will not, whether on Executive’s own behalf or on
behalf of or in conjunction with any Person, directly or
indirectly solicit or assist in soliciting in competition with
the Company or its Affiliates, the business of any customer,
prospective customer, client or prospective client:
(A) with whom Executive had personal contact or dealings on
behalf of the Company or its Affiliates during the one year
period preceding the termination of Executive’s employment;
(B) with whom employees directly or indirectly reporting to
Executive have had personal contact or dealings on behalf of the
Company or its Affiliates during the one-year immediately
preceding the termination of Executive’s employment; or
(C) for whom Executive had direct or indirect
responsibility during the one year period immediately preceding
the termination of Executive’s employment.
(ii) During the Restricted Period, Executive will not
directly or indirectly:
(A) engage in any Competitive Business;
(B) enter the employ of, or render any services to, any
Person (or any division or controlled or controlling affiliate
of any Person) who or which engages in a Competitive Business;
(C) acquire a financial interest in, or otherwise become
actively involved with, any Competitive Business, directly or
indirectly, as an individual, partner, stockholder, officer,
director, principal, agent, trustee or consultant; or
(D) interfere with, or attempt to interfere with, business
relationships (whether formed before, on or after the date of
this Agreement) between the Company or any of its Affiliates and
customers, clients, suppliers partners, members or investors of
the Company or its Affiliates.
(iii) Notwithstanding anything to the contrary in this
Agreement, Executive may directly or indirectly own, solely as
an investment, securities of any Person engaged in the business
of the Company or its Affiliates which are publicly traded on a
national or regional stock exchange or on the
over-the-counter
market if Executive (i) is not a controlling Person of, or
a member of a group which controls, such Person and
(ii) does not, directly or indirectly, own 5% or more of
any class of securities of such Person.
(iv) During the Restricted Period, Executive will not,
whether on Executive’s own behalf or on behalf of or in
conjunction with any Person, directly or indirectly:
(A) solicit, interview, encourage, or take any other action
that would tend to influence in any manner any employee of the
Company or its Affiliates to leave the employment of the Company
or
9
its Affiliates (other than as a result of a general
advertisement of employment made by Executive’s subsequent
employer or business, not directed at any such employee); or
(B) hire any such employee who was employed by the Company
or its Affiliates as of the Termination Date or who left the
employment of the Company or its Affiliates coincident with, or
within one year prior to or after, the Termination Date.
(v) During the Restricted Period, Executive will not,
directly or indirectly, solicit or encourage any consultant then
under contract with the Company or its Affiliates to cease to
work with the Company or its Affiliates.
b. It is expressly understood and agreed that
although Executive and the Company consider the restrictions
contained in this Section 8 to be reasonable, if a final
judicial determination is made by a court of competent
jurisdiction that the time or territory or any other restriction
contained in this Agreement is an unenforceable restriction
against Executive, the provisions of this Agreement shall not be
rendered void but shall be deemed amended to apply as to such
maximum time and territory and to such maximum extent as such
court may judicially determine or indicate to be enforceable.
Alternatively, if any court of competent jurisdiction finds that
any restriction contained in this Agreement is unenforceable,
and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of
any of the other restrictions contained herein.
c. Prior to the commencement thereof, Executive will
provide written notice to the Company of any employment or other
activity that would potentially violate the provisions of
Sections 7 or 8 and, if Executive wishes to do so,
Executive may ask the Board to modify or waive the protections
of this Section 8, but nothing in this Agreement shall
limit in any manner the Board’s absolute discretion not to
do so.
9. Enforcement of Promises Concerning the
Protection of the Company’s Confidential Information and
Goodwill. Executive acknowledges and agrees that the
Company’s remedies at law for a breach or threatened breach
of any of the provisions of Section 7 or Section 8
would be inadequate and the Company would suffer irreparable
damages as a result of such breach or threatened breach. In
recognition of this fact, Executive agrees that, in the event of
such a breach in or threatened breach, in addition to any
remedies at law, the Company, without posting any bond, shall be
entitled to obtain equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent
injunction or any other equitable remedy which may then be
available. In addition, and without limiting the Company’s
ability to obtain such equitable relief, Executive shall not be
entitled to any Change In Control Payment if Executive
materially violates the provisions of Sections 7 or 8 and,
to the extent that such payments have already been made,
Executive shall repay all Change In Control Payments immediately
upon demand by the Company.
10. Section 409A Acknowledgement and Release.
Executive understands that payments under this Agreement are
potentially subject to Section 409A of the Code and that if
this Agreement does not satisfy an exception to Code
Section 409A or does not comply with the requirements of
Section 409A and the applicable guidance thereunder, then
Executive may incur adverse tax consequences under
Section 409A. Executive acknowledges and agrees that
(a) Executive is solely responsible for all obligations
arising as a result of the tax consequences associated with
payments under this Agreement including, without limitation, any
taxes, interest or penalties associated with Section 409A,
(b) Executive is not relying upon any written or oral
statement or representation by the Company or any Affiliate
thereof, or any of their respective employees, directors,
officers, attorneys or agents (collectively, the
“Company Parties”) regarding the tax
effects associated with the execution of this Agreement and the
payment under this Agreement, and (c) in deciding to enter
into this Agreement, Executive is relying on his or her own
judgment and the judgment of the professionals of his or her
choice with whom Executive has consulted. Executive hereby
releases, acquits and forever discharges the Company Parties
from all actions, causes of actions, suits, debts, obligations,
liabilities, claims, damages, losses, costs and expenses of any
10
nature whatsoever, known or unknown, on account of, arising out
of, or in any way related to the tax effects associated with the
execution of this Agreement and any payment hereunder.
11. Miscellaneous.
a. Governing Law; Jurisdiction; Venue. This Agreement
shall be governed by and construed in accordance with the laws
of the State of Texas, without regard to conflicts of laws
principles thereof. Any action concerning or relating to this
Agreement shall be filed only in the federal and state courts
sitting in Dallas County, Texas.
b. Entire Agreement; Amendments. This Agreement
contains the entire understanding of the parties with respect to
any Change In Control or the subject matter of this Agreement,
provided however, that the effects of a change in control
pursuant to the Long-Term Incentive Award Agreements shall be
governed by the terms of such agreements and shall not be
affected by this Agreement.
c. No Waiver. The failure of a party to insist upon
strict adherence to any term of this Agreement, or any term of
any agreement with any other employee, on any occasion shall not
be considered a waiver of such party’s rights or deprive
such party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
d. Severability. In the event that any one or more of
the provisions of this Agreement shall be or become invalid,
illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions of this Agreement
shall not be affected thereby.
e. Assignment. This Agreement, and all of
Executive’s rights and duties hereunder, shall not be
assignable or delegable by Executive. Any purported assignment
or delegation by Executive in violation of the foregoing shall
be null and void ab initio and of no force and effect. This
Agreement may be assigned, in whole or in part, by the Company
to a Person which is an Affiliate or a successor in interest to
all or a substantial part of the business operations of the
Company. Upon such assignment, the rights and obligations of the
Company hereunder shall become the rights and obligations of
such Affiliate or successor Person.
f. Successors; Binding Agreement. This Agreement
shall inure to the benefit of and be binding upon personal or
legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees.
g. Notice. For the purpose of this Agreement, notices
and all other communications provided for in the Agreement shall
be in writing and shall be deemed to have been duly given when
delivered by hand or overnight courier or three days after it
has been mailed by United States registered mail, return receipt
requested, postage prepaid, addressed to the respective
addresses set forth below in this Agreement, or to such other
address as either party may have furnished to the other in
writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
If to the Company:
0000 Xxxx XXX Xxxxxxx
Xxxxxx, XX
00000-0000
Attention: General Counsel
11
If to Executive:
Executive’s home address as set forth in the personnel
records of the Company
h. Cooperation. Executive shall provide
Executive’s reasonable cooperation in connection with any
action or proceeding (or any appeal from any action or
proceeding) which relates to events occurring during
Executive’s employment hereunder.
i. Withholding Taxes. The Company may withhold from
any amounts payable under this Agreement such Federal, state and
local taxes as may be required to be withheld pursuant to any
applicable law or regulation.
j. Counterparts. This Agreement may be signed in
counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the
same instrument.
k. Survival. The provisions of Sections 1 and 7
through 9 of this Agreement shall survive the termination of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
|
EXECUTIVE:
|
Celanese Corporation: | |
|
By:
<<NAME>>
Employee ID: <<Personel Number>> |
By: |
|
|
Date:
|
Date: |
12
EXHIBIT A
FORM OF
GENERAL RELEASE AGREEMENT
AGREEMENT
AND GENERAL RELEASE
Celanese Corporation and its Affiliates (the
“Company”), 0000 Xxxx XXX Xxxxxxx, Xxxxxx, Xxxxx
00000
and ,
his or her heirs, executors, administrators, successors, and
assigns (“Executive”), enter into this Agreement and
General Release (the “Release”) and agree as follows:
| 1. | Last Day of Employment (Separation Date). The last day of employment with the Company is [Insert Date] (the “Separation Date”). |
| 2. | Consideration. In consideration for signing this Release and compliance with the promises made herein, Company and Executive agree: |
a. Change In Control Payment. The
Company will pay the Change In Control Payment, as defined in
the Change In Control Agreement between the Company and
Executive dated on or
about ,
20
(the “CIC Agreement”)
1 and
provide the reimbursements set forth in the CIC Agreement.
Executive agrees that such payments are the exclusive payments
due to Executive arising out of the separation of
Executive’s employment.
b. Unused Vacation. The Company will pay
to Executive wages for prorated unused vacation as of the
Separation Date.
c. Benefits. The Executive shall be
entitled to elect to continue group health and dental coverage
under COBRA and shall be reimbursed for such premiums as
provided in the CIC Agreement. Executive’s rights in any
other employee benefit plans of the Company will be as provided
in the relevant plan documents.
| 3. | No Consideration Absent Execution of this Agreement. Executive understands and agrees that he/she would not receive the consideration specified in Paragraph “2” above, unless the Executive signs this Agreement and General Release on the signature page without having revoked this Release pursuant to paragraph 14 below and the fulfillment of the promises contained herein. |
| 4. | General Release of Claims. Executive knowingly and voluntarily releases and forever discharges the Company and its Affiliates, together with its predecessors, successors and assigns and the current and former employees, officers, directors and agents thereof (collectively, the “Released Parties”), of and from any and all claims, known and unknown, asserted and unasserted, Executive has or may have as of the date of execution of this Release to the full extent permitted by law, in all countries and jurisdictions in which the Released Parties conduct their respective business, including but not limited to the United States of America. Notwithstanding anything to the contrary herein, it is expressly understood and agreed that the terms and conditions of any Long-Term Incentive Awards shall continue to be governed by the applicable Long-Term Incentive Award Agreements and shall not be affected by this Release. |
1 All
capitalized terms shall have the same meaning as set forth in
the CIC Agreement, unless otherwise stated.
13
| 5. | Executive acknowledges and agrees that he/she has been paid all amounts owed to Executive as compensation, whether in the form of salary, bonus, equity compensation, benefits or otherwise. The release in Section 4 of this Release includes, but is not limited to, any alleged violation of the following, as may be amended or in effect: |
(a) any action arising under or relating to any federal or
state statute or local ordinance, such as:
| • | Title VII of the Civil Rights Act of 1964; | |
| • | The Civil Rights Act of 1991; | |
| • | Sections 1981 through 1988 of Title 42 of the United States Code; | |
| • | The Employee Retirement Income Security Act of 1974; | |
| • | The Immigration Reform and Control Act; | |
| • | The Family and Medical Leave Act; | |
| • | The Americans with Disabilities Act of 1990; | |
| • | The Age Discrimination in Employment Act of 1967; | |
| • | The Workers Adjustment and Retraining Notification Act; | |
| • | The Occupational Safety and Health Act; | |
| • | The Xxxxxxxx-Xxxxx Act of 2002; | |
| • | The Texas Commission on Human Rights Act; | |
| • | The Texas Minimum Wage Law; | |
| • | Equal Pay Law for Texas; and | |
| • | The Vocational Rehabilitation Act. |
(b) any other national, federal, state, province, or local
civil or human rights law, or any other local, state, province,
national or federal law, regulation or ordinance; or any law,
regulation or ordinance of a foreign country, including but not
limited to the Federal Republic of Germany and the United
Kingdom;
(c) any action under public policy, contract, tort, common
law or equity, including, but not limited to, claims based on
alleged breach of an obligation or duty arising in contract or
tort, such as breach of contract, fraud, quantum meruit,
invasion of privacy, wrongful discharge, defamation, infliction
of emotional distress, assault, battery, malicious prosecution,
false imprisonment, harassment, negligence, gross negligence,
and strict liability;
(d) any claim for lost, unpaid, or unequal wages, salary,
or benefits, including, without limitation, any claim under the
Fair Labor Standards Act, the Employee Retirement Income
Security Act, the Equal Pay Act, the Texas Minimum Wage Law, the
Texas Equal Pay Law, or any other local, state, or federal
statute concerning classifications, wages, salary, or benefits,
including calculations and deductions relating to same, as well
as the employment, labor and benefits laws and regulations in
all countries in addition to the United States of America,
including but not limited to the United Kingdom and the Federal
Republic of Germany; and
(e) any other claim regardless of the forum in which it
might be brought, if any, which Executive has, might have, or
might claim to have against any of the Released Parties, for any
and all injuries, harm, damages, wages, benefits, salary,
reimbursements, penalties, costs, losses, expenses,
attorneys’ fees,
and/or
liability or other detriment, if any, whatsoever and whenever
incurred, suffered, or claimed by the Executive.
| 6. | Affirmations. Executive affirms that he/she has not filed, caused to be filed, or presently is a party to any claim, complaint, or action against the Released Parties in any forum or form, provided that this Release shall not affect the rights or responsibilities of the Equal Employment Opportunity Commission, or any other federal, state, or local authority with similar responsibilities (collectively, the “Commission”) to enforce any |
14
| employment discrimination law, and that this Release shall not shall affect the right of Executive to file a charge of discrimination with the Commission or participate in any investigation. However, Executive waives any right to participate in any payment or benefit arising from any such charge, claim, or investigation. |
Executive further affirms that
he/she has
reported all hours worked as of the date of this Release and has
been paid
and/or has
received all leave (paid or unpaid), compensation, wages,
bonuses, commissions,
and/or
benefits to which
he/she may
be entitled and that no other leave (paid or unpaid),
compensation, wages, bonuses, commissions
and/or
benefits are due to him/her, except as provided specifically in
this Release. Executive furthermore affirms that
he/she has
no known workplace injuries or occupational diseases and has
been provided
and/or has
not been denied any leave requested under the Family and Medical
Leave Act.
Executive reaffirms that he or she will comply fully with
Sections 7 through 9 of the CIC Agreement and that, if he
or she violates such provisions, all consideration paid
hereunder will be immediately due and payable back to the
Company.
| 7. | Governing Law and Interpretation. This Release shall be governed and conformed in accordance with the laws of the State of Texas, without regard to its conflict of laws provision. In the event the Executive or Company breaches any provision of this Release, Executive and Company affirm that either may institute an action to specifically enforce any term or terms of this Release. Should any provision of this Release be declared illegal or unenforceable by any court of competent jurisdiction and cannot be modified to be enforceable, excluding the general release language, such provision shall immediately become null and void, leaving the remainder of this Release in full force and effect. |
| 8. | Non-admission of Wrongdoing. The parties agree that neither this Release nor the furnishing of the consideration for this Release shall be deemed or construed at anytime for any purpose as an admission by Company of any liability or unlawful conduct of any kind. |
| 9. | Neutral Reference. If contacted by another organization, the Company will only provide dates of employment and position. |
| 10. | Non-Disparagement. Executive agrees not to disparage, or make disparaging remarks or send any disparaging communications concerning, the Company, its reputation, its business, and/or its directors, officers and managers. Likewise the Company’s senior management agrees not to disparage, or make any disparaging remark or send any disparaging communication concerning Executive, his reputation and/or his business. |
| 11. | Future Cooperation after Separation Date. After separation, Executive agrees to make reasonable efforts to assist Company including but not limited to: assisting with transition duties, assisting with issues that arise after separation of employment and assisting with the defense or prosecution of any lawsuit or claim. This includes but is not limited to providing deposition testimony, attending hearings and testifying on behalf of the Company. The Company will reimburse Executive for reasonable time and expenses in connection with any future cooperation after the separation date. Time and expenses can include loss of pay or using vacation time at a future employer. The Company shall reimburse the Executive within thirty (30) days of remittance by Executive to the Company of such time and expenses incurred, but in no event later than the end of the Executive’s tax year following the tax year in which the Executive incurs such time and expenses and such reimbursement obligation shall remain in effect for five years and the amount of expenses eligible for reimbursement hereunder during Executive’s tax year will not affect the expenses eligible for reimbursement in any other tax year. Notwithstanding the preceding sentence, if Executive is a Specified Employee on the Executive’s Termination Date, the reimbursement shall not be made until after six (6) months and one day following Executive’s Termination Date. |
15
| 12. | Injunctive Relief. Executive agrees and acknowledges that the Company will be irreparably harmed by any breach, or threatened breach by him/her of this Agreement and that monetary damages would be grossly inadequate. Accordingly, he/she agrees that in the event of a breach, or threatened breach by him/her of this Agreement the Company shall be entitled to apply for immediate injunctive or other preliminary or equitable relief, as appropriate, in addition to all other remedies at law or equity. |
| 13. | Review Period. Executive is hereby advised he/she has until [Insert Date], twenty-one (21) calendar days, to review this Release and to consult with an attorney prior to execution of this Release. Executive agrees that any modifications, material or otherwise, made to this Release do not restart or affect in any manner the original twenty-one (21) calendar day consideration period. |
| 14. | Revocation Period and Effective Date. In the event that Executive elects to sign and return to the Company a copy of this Agreement, he/she has a period of seven (7) days (the “Revocation Period”) following the date of such execution to revoke this Release, after which time this agreement will become effective (the “Effective Date”) if not previously revoked. In order for the revocation to be effective, written notice must be received by the Company no later than close of business on the seventh day after the Executive signs this Release at which time the Revocation Period shall expire. |
| 15. | Amendment. This Release may not be modified, altered or changed except upon express written consent of both parties wherein specific reference is made to this Release. |
| 16. | Entire Agreement. This Release sets forth the entire agreement between the parties hereto, and fully supersedes any prior obligation of the Company to the Executive. Executive acknowledges that he/she has not relied on any representations, promises, or agreements of any kind made to him/her in connection with his/her decision to accept this Release, except for those set forth in this Release. |
| 17. | HAVING ELECTED TO EXECUTE THIS AGREEMENT AND GENERAL RELEASE, TO FULFILL THE PROMISES AND TO RECEIVE THE SUMS AND BENEFITS IN SECTION 2 ABOVE, EXECUTIVE FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS RELEASE INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS HE/SHE HAS OR MIGHT HAVE AGAINST COMPANY. |
IN WITNESS WHEREOF, the parties hereto knowingly and voluntarily
executed this Release as of the date set forth below.
|
EXECUTIVE:
|
Celanese Corporation: | |
|
By:
|
By: | |
|
Date:
|
Date: |
16
EXHIBIT B
[List of
Works]
17
Schedule I
Xxxx X. Xxxxxx, Xx.
Xxxxxxxxx X. Xxxx
18
