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EXHIBIT 10(a)
RELEASE AND SETTLEMENT AGREEMENT
THIS RELEASE AND SETTLEMENT AGREEMENT ("Agreement") is made and entered
into this 15th day of April, 1998 by and between Great Lakes Chemical
Corporation (hereinafter "the Company") and Xxxxxx X. XxXxxxxx (hereinafter
"Xx. XxXxxxxx").
WITNESSETH:
WHEREAS, Xx. XxXxxxxx has been serving as President and Chief Executive
Officer of the Company; and
WHEREAS, the Company and Xx. XxXxxxxx have agreed that Xx. XxXxxxxx'x
employment with the Company shall be terminated by his voluntary resignation as
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants and promises of
the parties to this Agreement, including but not limited to the Company's
agreement to pay Xx. XxXxxxxx, subsequent to his termination, the amounts
described in this Agreement, the Company and Xx. XxXxxxxx agree as follows:
1. Resignation and Press Release. (a) Xx. XxXxxxxx hereby submits, and
the Company hereby accepts, his voluntary and irrevocable written resignation
as President and Chief Executive Officer of the Company, as an employee of the
Company, as an officer and employee of any affiliate of the Company, and as a
member of each committee or board of any affiliate of the Company on which he
currently serves, effective as of April 6, 1998 (hereinafter "Termination
Date"). From and after the Termination Date, Xx. XxXxxxxx shall no longer be
an elected officer of the Company or an officer or director of any of its
affiliates and, except as may be expressly provided in Sections 13 and 16 of
this Agreement, shall not for any purpose be considered to be or treated as an
elected officer of the Company or an officer or director of any of its
affiliates. During the completion of his current term on the Company's Board
of Directors (hereinafter "Board") after the Termination Date, Xx. XxXxxxxx'x
committee assignments thereon shall be subject to the appointment by the
Chairman of the Board with the approval of the Board. Xx. XxXxxxxx will
resign from the Board after the completion of his current term and will not be
renominated to the Board.
(b) Xx. XxXxxxxx and the Company acknowledge that a press release in the
form appended hereto as Attachment A has been issued in connection with his
resignation (the "Press Release"). Xx. XxXxxxxx approved the language of the
Press Release prior to its issuance.
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2. Severance Payments. Immediately upon expiration of the seven-day
period described in Section II below or at such other times as specifically
provided in this Section 2, the Company shall pay or commence to pay or provide
to or on behalf of Xx. XxXxxxxx as follows:
(a) The unpaid base salary to which Xx. XxXxxxxx is entitled through the
Termination Date and accrued but unused vacation days to the extent and in the
amounts, if any, provided under the Company's usual policies, such amounts to
be payable in a regular payroll check at the time and in the manner consistent
with the Company's general policies regarding compensation of executive
employees.
(b) From and after the Termination Date, the Company shall pay Xx.
XxXxxxxx, on a bi-weekly basis at the rate of $700,000 per year, for the period
beginning on the Termination Date and ending on the earliest to occur of (i)
October 31, 2001, (ii) Xx. XxXxxxxx'x death or (iii) the date as of which Xx.
XxXxxxxx elects to begin to receive retirement benefits to which he is entitled
under either or both of the Retirement Plan For Certain Employees of Great
Lakes Chemical Corporation as in effect as of the Termination Date (hereinafter
"Qualified Retirement Plan") or the Great Lakes Chemical Corporation
Supplemental Retirement Plan as in effect as of the Termination Date
(hereinafter "SERP"). If and to the extent Xx. XxXxxxxx continues on the Board
after the Termination Date, he shall not be entitled to any compensation
payable to non-employee directors and solely for purposes of director
compensation shall not be considered as a non-employee director. Xx. XxXxxxxx
shall be entitled to reimbursement for expenses as a member of the Board in
accordance with Company policies.
(c) A cash payment in the amount of $1,130,000, in lieu of any bonuses for
1998 or subsequent years under the Company's Management Incentive Compensation
Plan or any other annual bonus or incentive plan, program or arrangement of the
Company or any affiliate.
(d) A cash payment in the amount of $102,000, in lieu of any Company match
under the Great Lakes Savings Plan (hereinafter "401(k) Plan") and the Great
Lakes Chemical Corporation Supplemental Savings Plan (hereinafter "Supplemental
Savings Plan"), for periods after the Termination Date.
(e) A cash payment of $3,432,153, in lieu of any further rights in or
under any and all outstanding stock options (other than the 1989 stock options
which are the subject of Section 2(l) below) previously granted to Xx. XxXxxxxx
by the Company or any predecessor thereto, which options (other than the 1989
stock options which are the subject of Section 2(l) below) without further
action are hereby surrendered by Xx. XxXxxxxx for cancellation as of the
Termination Date and are hereby canceled as of the Termination Date. Xx.
XxXxxxxx agrees to deliver to the Executive Vice President and Chief Financial
Officer of the Company at the time of payment of the amount provided for in
this Section 2(e) all agreements evidencing such canceled outstanding stock
options.
(f) For the period from and after the Termination Date until October
31, 2001 or Xx. XxXxxxxx'x earlier death, the Company will arrange to provide
Xx. XxXxxxxx the
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opportunity to participate in the Company's group medical, dental and vision
plans as though he had continued as an employee of the Company. To the extent,
however, such coverage cannot be provided under such Company plans, the
Company, at its election, will either (i) arrange to make available to Xx.
XxXxxxxx coverage through an insured arrangement which provides benefits
substantially similar and on the same terms and conditions (including employee
contributions toward premium payments) to those provided under such Company
plans (except that such arrangement need not provide an annual maximum limit in
excess of $1 million, an annual deductible of less than $500, coverage for drug
or alcohol abuse or mental health coverage), or (ii) pay such benefits as
described in clause (i) above directly but, to the extent it elects to do so
and any such payment results in Xx. XxXxxxxx incurring additional federal,
state or local income taxes that would otherwise not have been incurred had
such benefit been provided on an insured basis, the Company shall promptly pay
Xx. XxXxxxxx, on an after-tax basis, an additional payment in an amount equal
to all taxes imposed on Xx. XxXxxxxx as a result of the payment of such benefit
by the Company. The Company's obligations, however, under the preceding
sentence are expressly conditional on Xx. XxXxxxxx taking all reasonable
actions and providing all reasonable information, as the Company shall request,
as is necessary for the Company to fulfill such obligations, and the Company
will notify Xx. XxXxxxxx of the coverage provided. For purposes of the group
medical, dental and vision plans, Xx. XxXxxxxx'x "qualifying event" for
purposes of the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended ("COBRA"), shall be the Termination Date. The Company does not
guarantee a favorable tax consequence to Xx. XxXxxxxx for any coverage provided
pursuant to this Section 2(f) nor will it indemnify him for such results.
(g) A cash payment of $200,000, in lieu of the payment of any further
premiums under the Split-Dollar Life Insurance Agreement dated January 1, 1996
between the Company and Xx. XxXxxxxx (hereinafter "Split-Dollar Agreement").
In addition, as of the Termination Date the Company agrees to waive its rights
to and under Xx. XxXxxxxx'x assignment to the Company of the policy that is the
subject of the Split-Dollar Agreement, with the result that from and after the
Termination Date, the Company shall have no further interest in said policy.
(h) Xx. XxXxxxxx shall be entitled, at the Company's expense, to purchase
a new car in 1998 upon the same terms and conditions that would have been
applicable to him under the Company's current automobile policy for senior
executives of the Company had he continued in employment. Until such new car
is delivered, Xx. XxXxxxxx shall be permitted to retain his current car.
(i) Xx. XxXxxxxx shall be entitled, upon substantiation of payment, to
reimbursement for all membership dues at his current country club in the
Lafayette, Indiana area paid by him, as and when due in the normal course, for
the period from the Termination Date until October 31, 2001 or his earlier
death. By written notice filed with the Company, however, Xx. XxXxxxxx may
elect to have the Company pay such membership dues directly, in which case Xx.
XxXxxxxx shall arrange to have such membership dues billed directly to the
Company which shall then pay such membership dues directly as and when due
rather than reimburse Xx. XxXxxxxx for payment.
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(j) The Company shall contribute payments in the aggregate amount of
$200,000 to one or more charitable organizations designated by Xx.
XxXxxxxx, such payments to be made in approximately equal annual
installments during 1998, 1999, and 2000.
(k) A cash payment of $4,706,000 to be paid to Xx. XxXxxxxx on November
1, 2001, in lieu of any benefit payments to which Xx. XxXxxxxx (or his
spouse or beneficiary) would otherwise then or thereafter be entitled
under the SERP including any accruals for the period after the
Termination Date had he continued in employment; provided, however, that
Xx. XxXxxxxx shall not be entitled to such cash payment if he elects to
receive retirement benefits under either or both of the Qualified
Retirement Plan or the SERP prior to November 1, 2001. Upon such lump
sum payment to Xx. XxXxxxxx pursuant to this Section 2(k), Xx. XxXxxxxx
agrees that, without further need to amend the SERP, neither he (nor his
spouse or beneficiary) shall be entitled to and he hereby waives all
rights to any further benefits under the SERP, but such payment shall not
affect his rights to benefits under the Qualified Retirement Plan.
(l) Xx. XxXxxxxx shall, notwithstanding any provision to the contrary in
his 1989 stock option agreement or in any related plan, be entitled to retain
the outstanding stock options granted to him by the Company during 1989 for
10,000 shares at an exercise price of $16.625, which options shall otherwise be
exercised in accordance with their terms at any time prior to March 1, 1999.
Any payments under the Section 2 shall not be taken into account for purposes
of any retirement or other benefit plan maintained by the Company or an
affiliate (including, without limitation, the Qualified Retirement Plan, the
SERP, the 401(k) Plan and the Supplemental Savings Plan).
3. Release. (a) As a condition to the Company's performance of this
Agreement, except as provided in subsection (c) of this Section 3, Xx.
XxXxxxxx, on behalf of himself, and his heirs, executors, administrators,
beneficiaries, successors and assigns, hereby
(i) acknowledges that the payments set forth in Section 2 constitute
satisfaction in full of Xx. XxXxxxxx'x rights to any payment with respect to
Xx. XxXxxxxx'x employment with the Company, and termination of such employment,
or any agreement, policy, practice, plan, arrangement or program of the Company
or any of its affiliates, including, but not limited to, any rights under the
Change in Control Agreement dated March 5, 1997 between the Company and Xx.
XxXxxxxx and any severance plan maintained by the Company or any affiliate, and
(ii) fully releases and forever discharges the Company, and its
affiliates, divisions, subsidiaries, facilities, parents, successors, assigns,
officers, directors, shareholders, agents, representatives, attorneys and
employees, (hereinafter collectively referred to as the "Released Parties"),
from any claims, demands, liabilities, obligations, charges, damages and causes
of action, known or unknown, fixed or contingent, with respect to any such
employment or termination, or any agreement, policy, practice, plan,
arrangement or program of the
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Company or any affiliate of the Company, or which may be based upon, related
to, or connected therewith, including, but not limited to, any claim or action
under any of the following (as amended): Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1866, the National Labor Relations Act, the Fair
Labor Standards Act, the Employee Retirement Income Security Act of 1974, the
Labor Management Relations Act, the Age Discrimination in Employment Act
("ADEA"), the Older Workers Benefit Protection Act, the Civil Rights Act of
1991, the Worker Adjustment and Retraining Notification Act, the Americans with
Disabilities Act, any state human rights act, state wage payment and collection
act, state anti-discrimination statutes, federal common law, state common law,
and/or any federal, state or local statute, law, ordinance, regulation or
order, and claims under any express or implied contract, including, but not
limited, to the Change in Control Agreement dated March 5, 1997 between the
Company and Xx. XxXxxxxx, and any severance plan maintained by the Company or
any affiliate, which Xx. XxXxxxxx or his heirs, executors, administrators,
beneficiaries, successors or assigns may claim exist or existed with the
Company or against any of the Released Parties.
(b) Xx. XxXxxxxx covenants and agrees never to commence, voluntarily aid
in any way, prosecute, or authorize to be commenced against any other party,
any action or other proceeding based upon any claims, demands, causes of
action, obligations, damages, or liabilities which are being released by this
Agreement. Xx. XxXxxxxx declares that, prior to the execution of this
Agreement, he has apprised himself of sufficient relevant data, either through
experts or other sources of his own selection, in order that he might
intelligently exercise his judgment in deciding whether to execute, and in
deciding on the contents of, this Agreement. Xx. XxXxxxxx further declares
that his decision is not predicated on or influenced by any declaration or
representations of the Company or any predecessors in interest, successors,
assigns, officers, directors, employees or agents of the Company. Xx. XxXxxxxx
states that the contents of this Agreement have been explained to him by his
counsel and that this document is executed voluntarily with full knowledge of
its significance.
(c) Notwithstanding any other provision in this Agreement to the contrary,
this Agreement does not constitute any waiver by Xx. XxXxxxxx of any rights
that he may have (i) under the Qualified Retirement Plan, (ii) the 40 1 (k)
Plan, (iii) except as otherwise provided in Section 2(k), the SERP, (iv) the
Supplemental Savings Plan, (v) as a holder of shares of Company stock, (vi)
under applicable law which cannot be waived pursuant to this Agreement, (vii)
as provided in Section 16, to indemnification under the charter or by-laws of
the Company or under the Company's directors 'and officers liability insurance
policy, or (viii) pursuant to this Agreement.
(d) Without limiting the generality of subsection (a) of this Section 3,
but subject to subsection (c) of this Section 3, Xx. XxXxxxxx agrees that the
payments provided for in Section 2 include and are made in lieu of, and shall
be considered as fulfilling, all financial obligations to Xx. XxXxxxxx,
including without limitation, salary or vested or accrued vacation pay,
bonuses, life insurance coverage, fringe benefits, and any amounts payable
under any employment separation or severance plan or policy of the Company, and
any agreement or contract previously entered into with the Company. Xx.
XxXxxxxx fully releases and forever discharges the Company, and its respective
affiliates, successors, assigns, officers, directors,
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agents, representatives, attorneys and employees, from any liability or
obligation to pay any compensation, salary continuation pay, separation or
severance pay, commission, bonus, or other benefit which otherwise may have
been payable to him as a result of his termination under benefit plans,
policies, agreements, arrangements, programs or pay practice of the Company or
any affiliate in effect at the time of his termination of employment,
including, but not limited, to any rights under the Change in Control Agreement
dated March 5, 1997 or severance plan maintained by the Company or any
affiliate, it being the intent of the parties hereto to convert and merge all
such rights into this Agreement.
4. No Admission. Nothing in this Agreement shall be construed as an
admission by any party as to any liability or that any claim has any factual or
other reasonable basis whatsoever. The parties agree and acknowledge that the
terms hereof are contractual in nature, and that the parties have jointly
agreed to enter into this Agreement in order to avoid and completely resolve
any and all claims.
5. Non-disparagement. (a) Xx. XxXxxxxx shall not disclose to any person
other than his lawyer, financial advisor, accountant and members of his
immediate family any matter relating to, including the terms and conditions of,
this Agreement, other than in a manner consistent with the Press Release, and
this Section 5, unless such disclosure shall be required by law, government
regulation, or the order of any court, administrative authority or other
government agency. Any statements by Xx. XxXxxxxx consistent with the Press
Release, and this Section 5, shall not be deemed to violate this Agreement.
(b) The Company, including its officers and directors, will not make or
publish any statements with regard to this Agreement or the circumstances under
which it was made other than in a manner consistent with the Press Release, and
this Section 5, unless such disclosure shall be required by law, government
regulation, or the order of any court, administrative authority or other
government agency. Any statements by the Company, including its officers and
directors, consistent with the Press Release, and this Section 5, shall not be
deemed to violate this Agreement.
(c) From and after the date of this Agreement, neither party shall
publicly or privately make any defamatory statement, regardless of the context
in which such statement is made, regarding the other party, the relationship
between the parties during the period of Xx. XxXxxxxx'x relationship with the
Company, or the business acumen or performance of the other party.
(d) In the event the Company receives an inquiry from a prospective
employer regarding Xx. XxXxxxxx, the Company agrees to provide a positive
reference as to Xx. XxXxxxxx'x skills and performance of his assigned duties
while employed by the Company. Xx. XxXxxxxx hereby expressly authorizes the
Company to respond to any such inquiry, and Xx. XxXxxxxx acknowledges that
responding to such an inquiry will not constitute a violation of this Section 5
nor will subject the Company to any claim against it by Xx. XxXxxxxx.
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6. Confidentiality. Xx. XxXxxxxx recognizes that he has a duty and
obligation to the Company to continue to protect the confidentiality of this
Agreement and of the Company's confidential and proprietary information and any
trade secrets belonging to the Company, and therefore agrees that:
(a) Any and all of the Company's confidential information produced or
received by Xx. XxXxxxxx during his employment is the property of the Company;
(b) Xx. XxXxxxxx shall not at any time in the future divulge or
communicate to any third person any confidential or proprietary information or
trade secrets belonging to the Company or its affiliates until such time as
such information or secrets become known by legitimate means such as public
disclosure by the Company or through no wrongful act by Xx. XxXxxxxx.
7. Non-Solicitation and Non-Competition. (a) Xx. XxXxxxxx shall not for a
period beginning on the Termination Date and ending on October 31, 2001
directly or indirectly participate in soliciting, recruiting, or hiring any
employees of the Company, and will not communicate to any other person or
entity regarding the nature, quality or quantity of work or any special
knowledge or personal characteristics of any person employed by the Company.
The parties expressly agree that if Xx. XxXxxxxx is contacted by a
prospective employer of any employee Xx. XxXxxxxx supervised while at the
Company, and is directly asked for a personal reference for such employee, Xx.
XxXxxxxx can respond to such an inquiry, and such response will not constitute
a violation of this Section 7, unless at the time such inquiry is made or such
response is provided, Xx. XxXxxxxx is employed by, or has an agreement to
provide services to, the prospective employer.
(b) Xx. XxXxxxxx hereby covenants and agrees that for the period beginning
on the Termination Date and ending on October 31, 2001 he will not, without the
prior written consent of the Chief Executive Officer of the Company, which
consent shall not be unreasonably withheld, engage in Competition (as defined
below) with the Company. For purposes of this Agreement, if Xx. XxXxxxxx takes
any of the following actions he will be engaged in "Competition": engaging in
or carrying on, directly or indirectly, any enterprise, whether as an advisor,
principal, agent, partner, sole-proprietor, officer, director, employee,
stockholder, associate or consultant to any person, partnership, corporation or
any other business entity, that is engaged in North America in the business of
producing and marketing speciality chemicals or other products competitive with
those of the Company and its affiliates; provided, however, that "Competition"
will not include (a) the mere ownership of securities in any enterprise and
exercise of rights appurtenant thereto or (b) participation in management of
any enterprise or business operation thereof other than in connection with the
competitive operation of such enterprise. Xx. XxXxxxxx agrees that the
geographical application of this clause is justified by the international scope
of the Company's operations.
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8. Acknowledgment and Consideration. The consideration described in
Section 2 is being provided in return for Xx. XxXxxxxx'x accepting the terms of
this Agreement, including the giving of a release, a covenant not to xxx, and
not revoking under Section I I so that this Agreement becomes effective. Xx.
XxXxxxxx acknowledges that the Company's payments set forth in Section 2 are in
the aggregate more than the Company is required to provide under its normal
policies and procedures, and are amounts to which he would not otherwise be
entitled by virtue of any contract, Company policy or practice, or any federal,
state or local statute, ordinance, order or law.
9. Assertion of Claims. Xx. XxXxxxxx represents and warrants, with the
understanding that such representation and warranty is material to this
transaction, that (a) no person or entity has asserted with any federal, state
or local judicial or administrative agency or body any claim of any kind or
character based on or arising out of or alleged to be suffered in or as a
consequence of Xx. XxXxxxxx'x employment with the Company, its termination, or
his contacts or relationships with the Company or any Released Party, and (b)
Xx. XxXxxxxx has no current intention to assert, in any manner or by any means,
any such claim before any federal, state or local judicial or administrative
agency or body. If any such claim is asserted in the future by Xx. XxXxxxxx or
any person or entity authorized by Xx. XxXxxxxx to do so, Xx. XxXxxxxx agrees
and acknowledges that this Agreement and release set forth in Section 3 hereof
shall act as a total and complete bar to his reemployment or to recovery of any
sum or amount whatsoever from the Company, whether labeled "award, liability,
damages, judgment, back pay, wages, or fine" or otherwise resulting directly or
indirectly from any lawsuit, remedy, charge or complaint whether brought
privately by him or by any one else, including any federal, state or local
agency, whether or not on his behalf or at his request.
10. Re-employment. Xx. XxXxxxxx hereby releases and waives any and all
rights or claims he may have to reemployment by the Company or any of the
Company's affiliates and agrees that he shall not reapply for any position with
the Company or any of the Company's affiliates.
11. CONSIDERATION OF TERMS AND EFFECTIVE DATE. XX. XXXXXXXX ACKNOWLEDGES
THAT HE HAS CAREFULLY READ THIS AGREEMENT, THAT HE KNOWS AND UNDERSTANDS THE
CONTENTS THEREOF AND THAT HE EXECUTES THE SAME AS HIS OWN FREE, KNOWING AND
VOLUNTARY ACT AND DEED. XX. XXXXXXXX FURTHER REPRESENTS AND ACKNOWLEDGES THAT
HE HAS BEEN ADVISED BY THE COMPANY IN WRITING TO CONSULT WITH AN ATTORNEY PRIOR
TO EXECUTING THIS AGREEMENT IF HE CHOSE TO DO SO, THAT HE HAS HAD AN
OPPORTUNITY TO CONSULT FULLY WITH HIS PERSONAL ATTORNEY REGARDING THE TERMS OF
THIS AGREEMENT, AND THAT HE FULLY UNDERSTANDS THE TERMS, CONDITIONS, AND FINAL
BINDING EFFECT OF THIS AGREEMENT, AND THAT THE RELEASE CONTAINED HEREIN IS A
RELEASE OF ALL CLAIMS WITH FINAL AND BINDING EFFECT. XX. XXXXXXXX ACKNOWLEDGES
THAT HE HAS BEEN GIVEN A PERIOD OF AT LEAST 21 DAYS WITHIN WHICH TO CONSIDER
THIS AGREEMENT PRIOR TO HIS EXECUTION HEREOF. FURTHERMORE, IT IS AGREED THAT
MR.
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MCDONALD SHALL HAVE THE RIGHT TO REVOKE THIS AGREEMENT BY WRITTEN NOTICE TO
THE COMPANY WITHIN THE SEVEN-DAY PERIOD FOLLOWING ITS EXECUTION. FOR THIS
REVOCATION TO BE EFFECTIVE, WRITTEN NOTICE MUST BE RECEIVED BY THE COMPANY'S
CHIEF EXECUTIVE OFFICER NO LATER THAN THE CLOSE OF BUSINESS ON THE SEVENTH DAY
AFTER XX. XXXXXXXX SIGNS THIS AGREEMENT. IF XX. XXXXXXXX DOES SO REVOKE, THIS
AGREEMENT WILL BE NULL AND VOID AND, SUBJECT TO APPLICABLE LAW, THE COMPANY
SHALL HAVE NO OBLIGATION WHATSOEVER TO XX. XXXXXXXX, AND XX. XXXXXXXX WILL NOT
RECEIVE THE CONSIDERATION DESCRIBED IN SECTION 2. THIS AGREEMENT SHALL NOT
BECOME EFFECTIVE AND ENFORCEABLE UNTIL AFTER THE EXPIRATION OF THIS SEVEN-DAY
REVOCATION PERIOD; AFTER SUCH TIME, IF THERE HAS BEEN NO REVOCATION, THIS
AGREEMENT SHALL BE FULLY EFFECTIVE AND ENFORCEABLE. IF THIS AGREEMENT IS
REVOKED BY XX. XXXXXXXX IN ACCORDANCE WITH THIS SECTION 11, XX. XXXXXXXX SHALL
RETURN TO THE COMPANY ALL CONSIDERATION AND BENEFITS PROVIDED BY THE COMPANY TO
WHICH XX. XXXXXXXX WOULD NOT BE ENTITLED ABSENT THIS AGREEMENT.
12. Remedies for Violation. Xx. XxXxxxxx acknowledges that this Agreement
prohibits him from initiating a lawsuit for any claims released in Section 3
and prohibits him from recovering any amounts or obtaining any remedy for
himself for any claim released in Section 3 through an action or proceeding
brought by others. Without limiting any other remedies available to the
Company at law or in equity, if Xx. XxXxxxxx materially breaches any of his
covenants or commitments set forth in this Agreement, including, but not
limited, to the provisions of Section 7, the Company shall be entitled to
recover and/or discontinue any or all of the consideration provided in Section
2 of this Agreement. In the event of any breach of the provisions of the
Agreement by Xx. XxXxxxxx, the parties acknowledge and agree that the Company
may suffer irreparable injury that could not be reasonably or adequately
compensated in damages in any action at law. Accordingly, Xx. XxXxxxxx
expressly agrees that the Company shall be entitled to injunctive relief,
specific performance or other equitable relief prohibiting Xx. XxXxxxxx from
violating or threatening to violate any provision of this Agreement, which
injunction or order shall be granted without requiring the Company to prove
damage or furnish any bond or other security.
13. No Authority or Responsibilities . Except as may be requested in
writing by the Chief Executive Officer of the Company, Xx. XxXxxxxx
acknowledges that he shall have no supervisory or managerial responsibility or
authority from and after the Termination Date and agrees not to involve himself
in any activities of the Company other than as a director. Xx. XxXxxxxx also
acknowledges that effective as of the Termination Date, he does not have
authority to bind the Company to any contracts or commitments and agrees that
he shall not create any obligation for the Company or bind or attempt to bind
the Company in any manner whatsoever. Xx. XxXxxxxx shall cooperate with the
Company and its counsel as the Company may reasonably request in connection
with any investigation or litigation relating to any matter in which Xx.
XxXxxxxx was involved during, or has knowledge as a result of, his employment
with the Company; provided, however, that the Company will make an effort to
reasonably accommodate Xx. XxXxxxxx'x schedule and other commitments, and shall
reimburse Xx. XxXxxxxx for Xx. XxXxxxxx'x reasonable
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out-of-pocket expenses incurred as a result of such request, and shall also
reimburse Xx. XxXxxxxx on a reasonable per them basis for his time in the event
Xx. XxXxxxxx is asked by the Company to travel outside the Lafayette, Indiana
area.
14. Expenses. Xx. XxXxxxxx shall settle any outstanding expenses and cash
advances in accordance with normal Company policies and procedures within
thirty (30) days following the execution of this Agreement.
15. Books and Records. Xx. XxXxxxxx shall return within seven (7) days
after the Termination Date, or at a time otherwise mutually agreed to, any
property of the Company or its affiliates now or hereafter in his possession or
under his control including, without limitation, all computer equipment, credit
cards, books, records, customer lists, manuals and pricing documents; provided,
however, that the parties agree that Xx. XxXxxxxx can keep copies of documents
relating to his benefits. In addition, Xx. XxXxxxxx shall promptly deliver to
the Company all papers (whether stored on computer or otherwise), descriptions,
summaries and other documents (and all copies thereof and notes with respect
thereto) containing any confidential or proprietary information or trade
secrets of the Company or its affiliates, including, without limitation,
personnel records, lists of employees, customers and suppliers, specifications
and designs of products, inventions, pending patent applications, product
styles, models, product manuals, lists of suppliers, sources and costs of parts
and raw materials, marketing methods and procedures, dealer volume, product
preference, credit standing, budgets and strategic plans. Notwithstanding the
foregoing provisions of this Section 15, Xx. XxXxxxxx shall not be required to
return any papers or other documents which he holds solely in his capacity as a
director of the Company.
16. Indemnification. This Agreement shall not affect Xx. XxXxxxxx'x
rights to indemnification under the charter or by-laws of the Company as in
effect on or prior to the Termination Date, with respect to acts of commission
or omission or events occurring on or prior to the Termination Date, which
rights to indemnification shall also apply to Xx. XxXxxxxx with respect to acts
of commission or omission or events on or after the Termination Date in
connection with requests of the Company pursuant to Section 13 and, if
applicable, in connection with his service as a director of the Company
following the Termination Date. The Company shall continue to cover Xx.
XxXxxxxx under the Company's directors' and officers' liability insurance
policy for as long as and to the extent that such coverage is provided to
former officers by the directors' and officers' liability insurance policy.
Under no circumstances shall the Company be required to purchase insurance
specifically for Xx. XxXxxxxx'x benefit. Instead, Xx. XxXxxxxx shall be
entitled to the same coverage which any other former officer would be entitled
to receive under the policies normally maintained by the Company, and for as
long as Xx. XxXxxxxx continues as a director of the Company following the
Termination Date, he shall be entitled to the same coverage non-employee
directors are entitled to receive under such policies.
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17. Miscellaneous.
(a) Affiliate Definition. "Affiliate" shall mean any person, firm or
corporation which directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, the persons
specified.
(b) Amendments. This Agreement may be amended only by a writing executed
by each of the parties hereto.
(c) Entire Agreement. This Agreement sets forth the entire understanding
of the parties hereto with respect to the subject matter hereof, and supersedes
all prior contracts, agreements, arrangements, communications, discussions,
representations and warranties, whether oral or written, between the parties
other than any confidentiality agreement executed by Xx. XxXxxxxx while an
employee of the Company.
(d) Governing Law. This Agreement shall in respects be governed by
and construed in accordance with the laws of the State of Indiana.
(e) Notices. Any notice, request or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given (a) when received if personally delivered, (b) within 12 hours after
being sent by telecopy, with telecopy confirmation, and (c) when received (as
established by written receipt) if sent by established overnight courier to the
parties (and to the persons to whom copies shall be sent) at:
To the Company: Great Lakes Chemical Corporation
One Great Lakes Boulevard
P.O. Box 2200
West Lafayette, Indiana 47906-0200
Attention: Chief Executive Officer
With a copy to: Xxxxx, Day, Xxxxxx & Xxxxx 00 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000 Attention: Xxxxxxxx
X. XxXxx, Xx. Telecopy No.: (000) 000-0000
To Xx. XxXxxxxx: Xx. Xxxxxx X. XxXxxxxx
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Any party by notice given to the other party in accordance with this Section
17(e) may change the address or the persons to whom notices or copies thereof
shall be directed.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same instrument.
(g) Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, assigns and
heirs, as set forth herein, but no rights, obligations or liabilities hereunder
shall be assignable by either party without the prior written consent of the
other party.
(h) Waivers. Any waiver by any party of any violation of, breach of or
default under any provision of this Agreement or any other agreements provided
for herein, by the other parties shall not be construed as, or constitute, a
continuing waiver of such provision, or waiver of any other violation of,
breach of or default under any other provision of this Agreement or any other
agreements provided for herein.
(i) Third Parties. Nothing expressed or implied in this Agreement is
intended, or shall be construed, to confer upon or give any person or entity
other than Xx. XxXxxxxx and his heirs, and the Company (including any Released
Parties) any rights or remedies under or by reason of this Agreement.
(j) Headings. The headings in this Agreement are solely for convenience
of reference and shall not be given any effect in the construction or
interpretation of this Agreement.
(k) Withholding, of Taxes. The Company may withhold from any amounts
payable under the Agreement all federal, state, city or other taxes as the
Company is required to withhold pursuant to any law or government regulation or
ruling.
(1) No Obligation to Mitigate. Xx. XxXxxxxx is under no obligation to
mitigate damages or the amount of any payment provided for hereunder by seeking
other employment or otherwise.
(m) Expense Reimbursement. The Company will reimburse Xx. XxXxxxxx for
reasonable fees of his attorney and tax advisors in connection with their
review of this Agreement and consultation with Xx. XxXxxxxx on its
implications; provided, however, that the Company's obligations hereunder shall
be limited to $10,000.
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IN WITNESS WHEREOF, Xx. XxXxxxxx has executed, and the Company has caused
its duly authorized representative to execute, this Agreement as of the date
first above written.
GREAT LAKES CHEMICAL CORPORATION
By /s/ Xxxxxx X. Xxxx
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Chairman of the Board
XXXXXX X. XXXXXXXX
By /s/ Xxxxxx X. XxXxxxxx
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