CHANGE IN CONTROL AGREEMENT
EXHIBIT 10.1
This
CHANGE IN CONTROL AGREEMENT (the “Agreement”)
is entered into on April 1, 2008 (the “Effective
Date”) by and between Celanese Corporation (the “Company”)
and Xxxxx X. Xxxxxxx (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 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 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.
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.
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
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. “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
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) two years 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).
p. “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.
q. “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.
r. “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 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
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 Board, Executive shall serve as Chairman and Chief
Executive Officer (“Executive’s
Incumbent Position”). In such position, Executive shall have
such duties and authority as shall be determined from time to time by the
Board. 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;
(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 (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 (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
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. 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.
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. Certain
Further Payments Due Executive
(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”), are or
become subject to the tax imposed under Section 4999 of the Code or any similar
tax that may hereafter be imposed (the “Excise Tax”), the Company will
pay to Executive an additional amount (the “Tax Reimbursement Payment”),
such that the net amount retained by Executive with respect to such Covered
Payments, after deduction of any Excise Tax (as well as any penalties and
interest thereon) on the Covered Payments and any Federal, state and local
income tax, payroll tax, and Excise Tax on the Tax Reimbursement Payment
provided for by this subsection (e), but before deduction for any Federal, state
or local income or employment tax withholding on such Covered Payments, will be
equal to the amount of the Covered Payments, together with an amount equal to
the product of any deductions disallowed to Executive for federal, state, or
local income tax purposes because of the inclusion of the Tax Reimbursement
Payment in Executive’s adjusted gross income multiplied by the highest
applicable marginal rate of federal, state, or local income taxation,
respectively, for the calendar year in which the Tax Reimbursement Payment is to
be made. The time for payment of the Tax Reimbursement Payment is set
forth in subsection (e)(v) below. The Tax Reimbursement Payment is
intended to place the Executive in the same position he would have been in if
the Excise Tax did not apply.
(ii) For
purposes of determining whether any of the Covered Payments will be subject to
the Excise Tax and the amount of such Excise Tax,
(A) such
Covered Payments will be treated as “parachute payments” within the meaning of
Section 280G of the Code, and all “parachute payments” in excess of the “base
amount” (as defined under Section 280G(b)(3) of the Code) will be treated as
subject to the Excise Tax, unless, and except to the extent that, in the good
faith judgment of a public accounting firm appointed by the Company or tax
counsel selected by such accounting firm (the “Accountants”), the Company has
a reasonable basis to conclude that such Covered Payments (in whole or in part)
either do not constitute “parachute payments” or represent reasonable
compensation for personal services actually rendered (within the meaning of
Section 280G(b)(4)(B) of the Code) in excess of the “base amount,” or such
“parachute payments” are otherwise not subject to such Excise Tax;
and
(B) the value
of any non-cash benefits or any deferred payment or benefit will be determined
by the Accountants in accordance with the principles of Section 280G of the
Code.
(iii) For
purposes of determining the amount of the Tax Reimbursement Payment, Executive
will be deemed to pay:
(A) Federal
income taxes at the highest applicable marginal rate of Federal income taxation
for the calendar year in which the Tax Reimbursement Payment is to be made;
and
(B) any
applicable state and local income taxes at the highest applicable marginal rate
of taxation for the calendar year in which the Tax Reimbursement Payment is to
be made, net of the maximum reduction in Federal income taxes which could be
obtained from the deduction of such state or local taxes if paid in such
year.
(iv) In the
event that the Excise Tax amount, if any, initially determined to be payable to
the United States Treasury Department pursuant to this subsection (e)
is later determined by the Accountants or pursuant to any proceeding or
negotiations with the Internal Revenue Service to exceed the amount taken into
account hereunder at the time the Tax Reimbursement Payment was initially
determined (including, but not limited to, by reason of any payment the
existence or amount of which could not be determined at the time of the Tax
Reimbursement Payment), the Company will make an additional Tax Reimbursement
Payment, in respect of such excess (including making a full Tax Reimbursement
Payment in the event of an initial determination that no Excise Tax amount was
due) (as well as any interest or penalty payable with respect to such payment)
at the time specified in subsection (e)(v) below.
In the
event that the Excise Tax is subsequently determined by the Accountants or
pursuant to any proceeding or negotiations with the Internal Revenue Service to
be less than the amount taken into account under this subsection (e) in
calculating the Tax Reimbursement Payment made, Executive will repay to the
Company, at the time specified in subsection (e)(v) below, the portion of such
prior Tax Reimbursement Payment that would not have been paid if the amount of
the Excise Tax had been accurately calculated in determining such Tax
Reimbursement Payment, plus interest on the amount of such repayment at the rate
provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the
foregoing, in the event any portion of the Tax Reimbursement Payment to be
refunded to the Company has been paid to any Federal, state or local tax
authority, repayment thereof will not be required until actual refund or credit
of such portion has been made to Executive, and interest payable to the Company
will not exceed interest received or credited to Executive by such tax authority
for the period it held such portion. Executive and the Company will
mutually agree upon the course of action to be pursued (and the method of
allocating the expenses thereof) if Executive’s good faith claim for refund or
credit is denied (in whole or in part); provided that Executive will remain
responsible to repay the Company for any such unrefunded Tax Reimbursement
Payments to the extent Executive ultimately prevails in such claim.
(v) The Tax
Reimbursement Payment (or portion thereof) provided for in this subsection (e)
will be paid to Executive within 5 days after Executive remits the Excise Tax to
the Internal Revenue Service but no later than the end of the Executive’s tax
year following the tax year in which the Executive remits the Excise Tax to the
Internal Revenue Service. Further, in the event that the initial Tax
Reimbursement Payment was too little and additional Tax Reimbursement Payments
are subsequently determined to be payable to Executive pursuant to subsection
(e)(iv) above, such Tax Reimbursement Payment or additional Tax Reimbursement
Payment amount will be made by the Company to Executive within 5 days after the
date that Executive remits such portion to the Internal Revenue Service, but no
later than the end of the Executive’s tax year following the tax year in which
the Executive remits such portion to the Internal Revenue Service. In
the event that the amount of the estimated Tax Reimbursement Payment exceeds the
amount subsequently determined to have been due, subject to the provisions of
subsection (e)(iv), such excess will be payable by Executive to the Company on
the fifth (5th) business day after written demand by the Company for payment
(together with interest at the rate provided in Section 1274(b)(2)(B) of the
Code). Company will reimburse the Executive for any interest,
penalties or surcharge that may be imposed on the Executive in connection with
any Excise Tax (including a reimbursement of any additional taxes imposed as a
result of the reimbursement of any such interest, penalties or surcharge) within
5 days after payment by the Executive, 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
interest, penalties, surcharge or other taxes are imposed, such reimbursement
obligation shall remain in effect during the applicable statute of limitations
relating to any such interest, penalties or surcharge (but in no event shall
remain in effect for longer than 10 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.
(vi) The Tax
Reimbursement Payment due under this subsection (e) shall not exceed four
million dollars ($4,000,000).
(vii) If the
amount of the Covered Payments is equal to or less than 110% of the product of
2.99 and Executive’s applicable “base amount” (as such term is defined for
purposes of Section 4999 of the Code), the Covered Payments under this Agreement
or otherwise shall be reduced by the minimum amount necessary so that none of
the Covered Payments are subject to the excise tax under Section 4999 of the
Code; provided, however, that this subsection (e)(vii) shall not apply if, even
after all Covered Payments due hereunder are reduced to zero, the value of the
Covered Payments would still be subject to the excise tax under Section
4999 of the Code, in which case no reduction of any Covered Payments shall be
made.
f. Notwithstanding
any provision of this Agreement to the contrary, if Executive is a “Specified
Employee” within the meaning of Treasury Regulation §1.409A-1(i) 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 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. 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 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
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
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:
___/s/ Xxxxx X.
Weidman_______________ By:
____/s/ Xxxxx X.
Rogan_________________
Xxxxx
X. Xxxxxxx
Date:___April 1,
2008__________________ Date:_____ April 1,
2008___________________
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 Xxxxx X. Xxxxxxx, his or her heirs, executors, administrators,
successors, and assigns (“Executive”), enter into this Agreement and General
Release (the “Release”) and agree as follows:
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1.
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Last
Day of Employment (Separation Date). The last day of employment
with the Company is [Insert Date] (the “Separation
Date”).
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2.
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Consideration. In
consideration for signing this Release and compliance with the promises
made herein, Company and Executive
agree:
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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 April 1, 2008 (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.
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3.
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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.
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4.
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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.
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5.
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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:
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(a) any
action arising under or relating to any federal or state statute or local
ordinance, such as:
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·
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Title
VII of the Civil Rights Act of
1964;
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·
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The
Civil Rights Act of 1991;
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·
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Sections
1981 through 1988 of Title 42 of the United States
Code;
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·
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The
Employee Retirement Income Security Act of
1974;
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·
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The
Immigration Reform and Control Act;
|
|
·
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The
Family and Medical Leave Act;
|
|
·
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The
Americans with Disabilities Act of
1990;
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|
·
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The
Age Discrimination in Employment Act of
1967;
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|
·
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The
Workers Adjustment and Retraining Notification
Act;
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·
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The
Occupational Safety and Health Act;
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·
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The
Xxxxxxxx-Xxxxx Act of 2002;
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·
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The
Texas Commission on Human Rights
Act;
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|
·
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The
Texas Minimum Wage Law;
|
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·
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Equal
Pay Law for Texas; and
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|
·
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The
Vocational Rehabilitation Act.
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(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.
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6.
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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 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.
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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.
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7.
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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.
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8.
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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.
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9.
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Neutral
Reference. If contacted by
another organization, the Company will only provide dates of employment
and position.
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10.
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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.
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11.
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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 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.
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12.
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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.
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13.
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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.
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14.
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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.
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15.
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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.
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16.
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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.
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17.
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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.
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IN
WITNESS WHEREOF, the parties hereto knowingly and voluntarily executed this
Release as of the date set forth below.
EXECUTIVE: Celanese
Corporation:
By:
____________________________________ By:
____________________________________
Xxxxx
X. Xxxxxxx
Date:___________________________________ Date:___________________________________
1 All capitalized
terms shall have the same meaning as set forth in the CIC Agreement, unless
otherwise stated.
EXHIBIT
B
[List
of Works]
Schedule
I
1. The
Company entered into a Change of Control Agreement with each of Xxxxxx X.
Xxxxxx, Xxxxx X. Xxxxx, Xxxxxxx X. Xxxxxx, Xxxx X. X’Xxxxx and Xxx X. Xxxxxxxx
that varied from the one entered into with Xxxxx X. Xxxxxxx by modifying Section
5(e)(vi) to provide, in its entirety, as follows:
The Tax
Reimbursement Payment due under this subsection (e) shall not exceed two million
dollars ($2,000,000).
