EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT made by and between Crompton Corporation, a
Delaware corporation having its principal offices at Xxx Xxxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 (the "Corporation"), and
XxxxxXxxx XxxxXxxx (the "Executive") of Of, as of this 29th
day of July, 2002.
W I T N E S S E T H:
WHEREAS, the Executive is currently employed by the
Corporation in the position of Title and the Corporation
recognizes the valuable services that the Executive has provided
and can continue to provide to the Corporation and desires to be
assured that the Executive will be available to actively
participate in the business of the Corporation;
WHEREAS, the Executive is willing to continue such employment
with the Corporation but desires assurance of continuity of
employment in the event of any actual or threatened Change of
Control of the Corporation (as defined in Section 2 of this
Agreement);
WHEREAS, the Corporation, on behalf of itself and its
shareholders, wishes to continue to attract and retain well-
qualified executive and key management personnel who are an
integral part of the management of the Corporation, such as the
Executive, and to assure itself of continuity of management in
the event of any actual or threatened Change of Control of the
Corporation (as defined in Section 2 of this Agreement); and
WHEREAS, the Executive and the Corporation are parties to an
Employment Agreement dated as of LastEmpAgmt, which agreement
they wish to terminate upon the execution of this agreement;
IT IS, THEREFORE, AGREED:
1. Operation of Agreement. (a) The "Effective Date" shall
be the date during the "Change of Control Period" (as defined in
Section 1(b) of this Agreement) on which a Change of Control
occurs.
(b) The "Change of Control Period" is the period beginning
on the date hereof and ending on the second anniversary of such
date; provided, however, that beginning on the date one year
after the date hereof, and on each annual anniversary of such
date (each such date being referred to as a "Renewal Date"), the
Change of Control Period shall be automatically extended so as to
terminate on the date that is two years from such Renewal Date,
unless at least sixty (60) days prior to the Renewal Date the
Corporation shall give written notice to the Executive that the
Change of Control Period shall not be so extended.
2. Change of Control. For the purpose of this Agreement, a
"Change of Control" shall mean a change of control of the
Corporation during the Change of Control Period of a nature that
would be required to be reported in response to Item 1(a) of the
Current Report on Form 8-K, as in effect on the date hereof,
pursuant to Section 13 or 15(d) of the Securities Exchange Act of
0000 (xxx "Xxxxxxxx Xxx"); provided that, without limitation,
such a "Change of Control" shall be deemed to have occurred if:
(i) a third person, including a "group" as such term is used in
Section 13(d)(3) of the Exchange Act, other than the trustee of
any employee benefit plan of the Corporation, becomes the
beneficial owner, directly or indirectly, of 20% or more of the
combined voting power of the Corporation's outstanding voting
securities ordinarily having the right to vote for the election
of directors of the Corporation; (ii) during any period of 24
consecutive months individuals who, at the beginning of such
consecutive 24-month period, constitute the Board of Directors of
the Corporation (the "Board" generally and as of the date hereof
the "Incumbent Board") cease for any reason (other than
retirement upon reaching normal retirement age, disability, or
death) to constitute at least a majority of the Board; provided
that any person becoming a director subsequent to the date hereof
whose election, or nomination for election by the Corporation's
shareholders, was approved by a vote of at least three-quarters
of the directors who at the time of such election or nomination
for election comprise the Incumbent Board (other than an election
or nomination of an individual whose initial assumption of office
is in connection with an actual or threatened election contest
relating to the election of the Directors of the Corporation, as
such terms are used in Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act) shall, for purposes of this Agreement, be
considered a member of the Incumbent Board; (iii) the Corporation
shall consolidate or merge with or into another person (including
any such transaction in which the Corporation is the surviving
entity); or (iv) the Corporation shall cease to be a publicly
owned corporation having its outstanding Common Stock listed on
the New York Stock Exchange or quoted in the NASDAQ National
Market System.
3. Employment Period. The Corporation hereby agrees to
continue the Executive in its employ, and the Executive hereby
agrees to remain in the employ of the Corporation, for the period
commencing on the Effective Date and ending on the third
anniversary of such date. The period from the Effective Date
until the earlier of (i) the Date of Termination (as defined in
Section 6(e) of this Agreement) or (ii) the end of the period
described in the preceding sentence is hereinafter referred to as
the "Employment Period."
4. Position and Duties. (a) During the Employment Period,
(i) the Executive's position (including status, offices, titles
and reporting requirements), authority, duties and
responsibilities shall be at least commensurate in all material
respects with those held, exercised and assigned at any time
during the 90-day period immediately preceding the Effective Date
and (ii) the Executive's services shall be performed at the
location where the Executive was employed immediately preceding
the Effective Date.
(b) Excluding periods of vacation and sick leave to which
the Executive is entitled, the Executive agrees to devote
reasonable attention and time during normal business hours to the
business and affairs of the Corporation and, to the extent
necessary to discharge the responsibilities assigned to the
Executive hereunder, to use reasonable best efforts to perform
faithfully and efficiently such responsibilities. The Executive
may (i) serve on corporate, civic or charitable boards or
committees, (ii) deliver lectures, fulfill speaking engagements or
teach at educational institutions and (iii) manage personal
investments, so long as such activities do not significantly
interfere with the performance of the Executive's
responsibilities. It is expressly understood and agreed that to
the extent that any such activities have been conducted by the
Executive prior to the Effective Date, such prior conduct of
activities, and any subsequent conduct of activities similar in
nature and scope shall not thereafter be deemed to interfere with
the performance of the Executive's responsibilities to the
Corporation.
5. Compensation. (a) Base Salary. During the Employment
Period, the Executive shall receive a base salary ("Base Salary")
at a monthly rate at least equal to the highest monthly salary
paid to the Executive by the Corporation, together with any of
its affiliated companies, during the twelve-month period
immediately preceding the month in which the Effective Date
occurs. The Executive's Base Salary shall be reviewed at least
once during the Employment Period, and shall be increased at any
time and from time to time to reflect increases in the cost of
living and such other increases as shall be consistent with
increases in base salary awarded in the ordinary course of
business to other key executives. Any increase in the Base
Salary shall not serve to limit or reduce any other obligation to
the Executive under this Agreement. The Base Salary shall not be
reduced after any such increase. As used in this Agreement, the
term "affiliated companies" includes any company controlling,
controlled by or under common control with the Corporation.
(b) Incentive, Savings and Retirement Plans. In addition to
the Base Salary payable as hereinabove provided, the Executive
shall be entitled to participate, during the Employment Period,
in all incentive compensation, savings and retirement plans and
programs applicable to other key executives, but in no event
shall such plans and programs, in the aggregate, provide the
Executive with compensation, benefits and reward opportunities
less favorable than those provided by the Corporation and its
affiliated companies for the Executive under such plans and
programs as in effect at any time during the 90-day period
immediately preceding the Effective Date.
(c) Welfare Benefit Plans. During the Employment Period,
the Executive and/or the Executive's family, as the case may be,
shall be eligible for participation in and shall receive all
benefits under each welfare benefit plan of the Corporation,
including, without limitation, all medical, dental, disability,
life, group life, accidental death and travel accident insurance
plans and programs of the Corporation and its affiliated
companies, as in effect at any time during the 90-day period
immediately preceding the Effective Date or, if more favorable to
the Executive, as in effect at any time thereafter with respect
to other key executives.
(d) Expenses. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by the Executive in accordance with
the policies and procedures of the Corporation as in effect at
any time during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in
effect at any time thereafter with respect to other key
executives.
(e) Fringe Benefits. During the Employment Period, the
Executive shall be entitled to fringe benefits, including
without limitation the use of an automobile and the payment of
related expenses, and club memberships, in accordance with the
policies of the Corporation as in effect at any time during the
90-day period immediately preceding the Effective Date or, if
more favorable to the Executive, as in effect at any time
thereafter with respect to other key executives.
(f) Office and Support Staff. During the Employment Period,
the Executive shall be entitled to an office or offices of a size
and with furnishings and other appointments, and to secretarial
and other assistance, at least equal to those provided to the
Executive at any time during the 90-day period immediately
preceding the Effective Date or, if more favorable to the
Executive, as provided at any time thereafter with respect to
other key executives.
(g) Vacation. During the Employment Period, the Executive
shall be entitled to paid vacation in accordance with the
policies of the Corporation as in effect at any time during the
90-day period immediately preceding the Effective Date or, if
more favorable to the Executive, as in effect at any time
thereafter with respect to other key executives.
6. Termination. (a) Death, Retirement or Disability. This
Agreement shall terminate automatically upon the Executive's
death or retirement under the retirement plan of the Corporation
or its affiliates in which the Executive is a participant. The
Corporation may terminate this Agreement, after having
established the Executive's Disability (pursuant to the
definition of "Disability" set forth below), by giving to the
Executive written notice of its intention to terminate the
Executive's employment. In such a case, the Executive's
employment with the Corporation shall terminate effective on the
90th day after receipt of such notice (the "Disability Effective
Date"), unless the Executive has previously returned to full-time
performance of the Executive's duties. For purposes of this
Agreement, "Disability" means physical or mental disability
which, after the expiration of more than 26 weeks after its
commencement, is determined to be total and permanent by a
physician selected by the Corporation or its insurers and
acceptable to the Executive or the Executive's legal
representative (such agreement to acceptability not to be
unreasonably withheld). Should the Executive or the Executive's
legal representative not acquiesce in the selection of the
physician, a physician chosen by the Executive or the Executive's
legal representative and reasonably acceptable to the Corporation
shall be required to concur in the medical determination of total
and permanent disability, failing which the two physicians shall
designate a third physician whose decision shall be determinative
as of the end of the calendar month in which such concurrence or
third-physician decision, as the case may be, is made.
(b) Cause. The Corporation may terminate the Executive's
employment for "Cause." For purposes of this Agreement, "Cause"
means: (i) the Executive's willful and continued failure to
substantially perform assigned duties with the Corporation (other
than any such failure resulting from incapacity due to physical
or mental illness or any such actual or anticipated failure
resulting from termination for Good Reason), after a demand for
substantial performance is delivered to the Executive by the
Board, specifically identifying the manner in which the Board
believes that the duties have not been substantially performed;
or (ii) the Executive's willful conduct which is demonstrably and
materially injurious to the Company. For purposes of this
paragraph (b), no act, or failure to act, shall be considered
"willful" unless done, or omitted to be done, not in good faith
and without reasonable belief that such action or omission was in
the best interest of the Corporation.
(c) Good Reason. The Executive's employment may be
terminated by the Executive for Good Reason. For purposes of
this Agreement, "Good Reason" means:
(i) the assignment to the Executive of any duties
inconsistent in any respect with the Executive's position
(including status, offices, titles and reporting
requirements), authority, duties or responsibilities as
contemplated by Section 4 of this Agreement or any other
action by the Corporation which results in a diminishment in
such position, authority, duties or responsibilities, other
than an insubstantial and inadvertent action which is
remedied by the Corporation promptly after receipt of notice
thereof given by the Executive;
(ii) any failure by the Corporation to comply with any
of the provisions of Section 5 of this Agreement, other than
an insubstantial and inadvertent failure which is remedied
by the Corporation promptly after receipt of notice thereof
given by the Executive;
(iii) the Corporation's requiring the Executive to be
based at any office or location other than that referred to
in Section 4(a)(ii) of this Agreement, except for travel
reasonably required in the performance of the Executive's
responsibilities and substantially consistent with business
travel obligations of the Executive as of the Effective
Date;
(iv) any purported termination by the Corporation of
the Executive's employment otherwise than as permitted by
this Agreement, it being understood that any such purported
termination shall not be effective for any purpose of this
Agreement other than establishing the Date of Termination
pursuant to paragraph (e) of this Section 6 below; or
(v) any failure by the Corporation to comply with and
satisfy Section 12(b) of this Agreement.
(d) Notice of Termination. Any termination of the
Executive's employment by the Corporation for Cause or by the
Executive for Good Reason shall be effected by Notice of
Termination to the other party hereto given in accordance with
Section 13(b) of this Agreement. For purposes of this
Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so
indicated and (iii) if the termination date is other than the
date of receipt of such notice, specifies the termination date
(which date shall not be more than 15 days after the giving of
such notice). In the case of termination for Cause, the Notice
of Termination shall not be effective unless it takes the form
of a copy of a resolution duly adopted in good faith by the
affirmative vote of the entire membership of the Board at a
meeting of the Board called and held for such purpose, after
reasonable notice and an opportunity for the Executive, together
with counsel, to be heard before the Board.
e) Date of Termination. "Date of Termination" means the
date of the Executive's death, the Disability Effective Date,
or the date of receipt of an effective Notice of Termination or
any later date specified therein, as the case may be. If the
Executive's employment is terminated by the Corporation in
breach of this Agreement, the Date of Termination shall be the
date on which the Corporation notifies the Executive of such
termination.
7. Obligations of the Corporation upon Termination. (a)
Death. If the Executive's employment is terminated by reason of
the Executive's death, this Agreement shall terminate without
further obligations to the Executive's legal representatives
under this Agreement other than those obligations accrued
hereunder at the date of the Executive's death. If the
Executive's employment is terminated by reason of the Executive's
death occurring during the Employment Period, the Executive's
legal representatives shall be paid within 30 days after the Date
of Termination a lump sum amount equal to the product of (i) the
maximum amount of annual incentive compensation that the
Executive could have earned under all plans, policies or programs
providing for the payment of incentive compensation for the
fiscal year in which the Date of Termination occurs if the
Executive had remained employed by the Corporation for the full
such fiscal year and (ii) the fraction obtained by dividing the
number of days the Executive was employed by the Corporation
during such fiscal year by 365. Anything in this Agreement to
the contrary notwithstanding, the Executive's family shall be
entitled to receive benefits at least equal to those provided by
the Corporation to surviving families of executives of the
Corporation under such plans, programs and policies relating to
family death benefits, if any, as in effect at any time during
the 90-day period immediately preceding the Effective Date or, if
more favorable to the Executive and/or the Executive's family, as
in effect at any time thereafter with respect to other key
executives and their families.
(b) Disability. If the Executive's employment is
terminated during the Employment Period by reason of the
Executive's Disability, the Executive shall be entitled after the
Disability Effective Date to receive disability and other
benefits at least equal to those provided by the Corporation to
disabled employees and/or their families in accordance with such
plans, programs and policies relating to disability, if any, as
in effect during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive and/or the
Executive's family, as in effect at any time thereafter with
respect to other key executives and their families. In addition,
the Executive shall be paid within 30 days of the Executive's
Disability Effective Date a lump sum amount equal to the product
of (i) the maximum amount of annual incentive compensation that
the Executive could have earned under all plans, policies or
programs providing for the payment of incentive compensation for
the fiscal year in which the Executive's Disability Effective
Date occurs if the Executive had remained employed by the
Corporation for the full such fiscal year and (ii) the fraction
obtained by dividing the number of days the Executive was
employed by the Corporation during such fiscal year by 365.
(c) Cause. If the Executive's employment shall be
terminated for Cause, the Corporation shall pay the Executive
the Executive's full Base Salary through the Date of
Termination at the rate in effect at
the time Notice of Termination is given and shall have no
further obligations to the Executive under this Agreement.
(d) Good Reason; Termination Other Than for Cause or
Disability. If, during the Employment Period, the Corporation
shall terminate the Executive's employment other than for Cause
or Disability, or the employment of the Executive shall be
terminated by the Executive for Good Reason:
(i) The Corporation shall pay to the Executive (or, in
the case of the death of the Executive prior to such
payment, to the Executive's legal representatives) in a
lump sum in cash within 30 days after the Date of
Termination the aggregate of the following amounts:
(A) if not theretofore paid, the Executive's
Base Salary through the Date of Termination at the
rate in effect on the Date of Termination or, if
higher, at the highest rate in effect at any time
within the 90-day period preceding the Effective
Date;
(B) the greater of (i) the maximum amount of
annual incentive compensation that the Executive was
eligible to earn under all plans, policies or programs
providing for the payment of incentive compensation for
the fiscal year in which the Date of Termination occurs
if the Executive had remained employed by the
Corporation for the full such fiscal year or (ii) the
highest amount of annual incentive compensation paid
to the Executive in any one of the three full fiscal
years ending immediately prior to the Effective Date;
(C) an amount equal to CIC (Times) times the
sum of (x) the Executive's annual Base Salary at the
rate in effect at the time a Notice of Termination was
given or, if higher, at the highest rate in effect at
any time within the 90-day period immediately preceding
the Effective Date and (y) the highest amount of
incentive compensation (which, for this purpose, shall
include both annual and long term incentive
compensation) paid to the Executive in any one of the
five most recent full fiscal years of the Corporation;
(D) in the case of compensation previously
deferred by the Executive, all amounts of such
compensation previously deferred and not
yet paid by the Corporation; and
(E) an amount equal to the employer contributions
that would have been made to the Executive's account
pursuant to the Crompton Employee Savings Plan (CESP)
(based on the rate in effect on the Date of
Termination) and the Employee Stock Ownership Plan
(ESOP), or any successors to such plans, if the
Executive had continued in employment through the
Ordinal anniversary of the Date of Termination, with
Base Salary and incentive compensation equal to the
amounts set forth above in clause (C) and had the
Executive continued to contribute to the Employee Stock
Ownership Plan at the rate in effect on the Date of
Termination.
(ii) The Corporation shall, promptly upon submission
by the Executive of supporting documentation, pay or
reimburse to the Executive any costs and expenses
(including moving and relocation expenses) paid or incurred
by the Executive which would have been payable under
Section 5(d) of this Agreement
if the Executive's employment with the Corporation had not
terminated.
(iii) Until the earlier of (A) the day upon which the
Executive begins new employment and is eligible for
benefits, or (B) the Ordinal anniversary of the Date of
Termination, the Corporation shall continue to provide
benefits to the Executive and/or the Executive's family at
least equal to those which would have been provided to them
in accordance with the plans, programs and policies
described in Section 5(c) of this Agreement if the
Executive's employment had not been terminated, as in effect
at any time during the 90-day period immediately preceding
the Effective Date or, if more favorable to the Executive,
as in effect at any time thereafter with respect to other
key executives and their families.
(iv) Until the earlier of (A) the day upon which the Executive
begins new employment and is eligible for benefits, or (B) the
Ordinal anniversary of the Date of Termination, the Corporation
shall continue to provide benefits to the Executive at least
equal to those which would have been provided to the Executive in
accordance with the plans, programs and policies described in
Section 5(e) of this Agreement if the Executive's employment had
not been terminated, as in effect at any time during the 90-day
period immediately preceding the Effective Date or, if more
favorable to the Executive, as in effect at any time thereafter
with respect to other key executives.
(v) Until the earlier of (A) the day upon which
the Executive begins new employment comparable to the
Executive's employment with the Corporation immediately
prior to the Effective Date, or (B) the Ordinal
anniversary of the Date of Termination, the Corporation
shall pay all reasonable expenses incurred by the Executive
in seeking comparable employment including, without
limitation, the fees and expenses of a placement
organization and reasonable travel, telephone and office
expenses.
8. No Obligation to Seek Further Employment;
Non-exclusivity of Rights.
(a) The Executive shall not be required to seek other
employment, nor shall the amount of any cash payment provided
for under this Agreement be reduced by any compensation earned
by the Executive as the result of employment by another employer
after the Date of Termination, or otherwise.
(b) Nothing in this Agreement shall prevent or limit the
Executive's continuing or future participation in any benefit,
bonus, incentive or other plan or program provided by the
Corporation or any of its affiliated companies and for which the
Executive may qualify, nor shall anything herein limit or
otherwise affect such rights as the Executive may have under any
stock option, incentive compensation or other agreements with
the Corporation or any of its affiliated companies. Amounts
which are vested benefits or which the Executive is otherwise
entitled to receive under any plan, program or agreement of or
with the Corporation or any of its affiliated companies at or
subsequent to the Date of Termination shall be payable in
accordance with such plan, program or agreement.
9. Full Settlement. The Corporation's obligation to make
the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any
circumstances, including, without limitation, any setoff,
counterclaim, recoupment, defense or other right which the
Corporation may have against the Executive or others. In no
event shall the Executive be obligated to seek other employment
by way of mitigation of the amounts payable to the Executive
under any of the provisions of this Agreement. The Corporation
agrees to pay, to the full extent permitted by law, all legal
fees and expenses which the Executive or the Executive's legal
representatives may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Corporation or others
of the validity or enforceability of, or liability under, any
provision of this Agreement or any guarantee of performance
thereof or as a result of any contest by the Executive or the
Executive's legal representatives concerning the amount payable
pursuant to Section 10 of this Agreement, plus in each case
interest, compounded quarterly, on the total unpaid amount
determined to be payable under this Agreement, such interest to
be calculated at a rate equal to 2% in excess of the highest
prime commercial lending rate in effect from time to time in New
York, New York during the period of such nonpayment.
10. Certain Further Payments by the Company. (a) In the
event that any amounts paid or distributed to the Executive
pursuant to this Agreement (taken together with any amounts
otherwise paid or distributed to the Executive in connection
with a Change of Control) are subject to an excise tax under
Section 4999 of the Code or any successor or similar provision
thereto (the "Excise Tax"), the Corporation shall pay to the
Executive an additional amount such that, after taking into
account all taxes (including federal, state, local and foreign
income, excise and other taxes) incurred by the Executive on the
receipt of such additional amount, the Executive is left with
the same after-tax amount the Executive would have been left
with had no Excise Tax been imposed.
(b) All determinations required to be made under this
Section 10 and the assumptions to be utilized in arriving at such
determinations shall be made by the public accounting firm that
audited the books of the Corporation in the fiscal year ended
immediately prior to the Effective Date unless another nationally
recognized certified public accounting firm is jointly designated
by the Executive and the Corporation (the "Accounting Firm")
which shall provide detailed supporting calculations both to the
Corporation and the Executive within 15 business days following
the receipt of notice from the Corporation or the Executive that
a Notice of Termination has been provided under this Agreement
(collectively, the "Determination"). In the event the Accounting
Firm is serving as accountant or auditor for the individual,
entity or group effecting the Change of Control (or does not
undertake to provide the Determination), the Executive and the
Corporation shall appoint another "big five" public accounting
firm to make the Determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm
hereunder). All fees and expenses of the Accounting Firm
hereunder incurred with respect to the Determination shall be
borne solely by the Corporation and the Corporation shall enter
into any agreement requested by the Accounting Firm in connection
with the performance of the services hereunder.
11. Noncompetition and Confidential Information. (a)
During the Employment Period, and during a one-year period
following any termination of the Executive's employment other
than a termination by the Executive for Good Reason or a
termination of the Executive's employment by the Corporation
without Cause, the Executive shall not directly or indirectly
compete with the Corporation or any of its affiliated companies,
whether as an individual proprietor or entrepreneur or as an
officer, employee, partner, stockholder, or in any capacity
connected with any enterprise, in any business in which the
Corporation is engaged at the time of the termination of the
Executive's employment, within any state or possession of the
United States of America or any foreign country within which such
business is then being conducted, or within which business the
Corporation has formally announced specific plans to conduct
and/or the Executive has actual knowledge that the Corporation
specifically plans to be conducted. For the purpose of the
preceding sentence, conducting business, doing business, or
engaging in business shall be deemed to embrace sales to
customers or performance of services for customers who are within
a relevant geographical area, without any necessity of any
presence of the Corporation therein. Nothing herein, however,
shall prohibit the Executive from acquiring or holding any issue
of stock or securities of any corporation which has any
securities listed on a national securities exchange or quoted in
the daily listing of over-the-counter market securities; provided
that at any one time the Executive and members of the Executive's
immediate family do not own more than five (5%) percent of the
voting securities of any such corporation.
(b) The Executive shall hold in a fiduciary capacity for
the benefit of the Corporation all secret or confidential
information, knowledge or data relating to the Corporation or any
of its affiliated companies, and their respective businesses,
which shall have been obtained by the Executive during the
Executive's employment by the Corporation or any of its
affiliated companies and which shall not be public knowledge
(other than by acts by the Executive or the Executive's
representatives in violation of this Agreement). After
termination of the Executive's employment with the Corporation,
the Executive shall not, without the prior written consent of the
Corporation, communicate or divulge any such information,
knowledge or data to anyone other than the Corporation and those
designated by it, except as required by law or by a court of
competent jurisdiction. In no event shall an asserted violation
of the provisions of this Section 11 constitute a basis for
deferring or withholding any amounts otherwise payable to the
Executive under this Agreement.
12. Successors. (a) This Agreement is personal to the
Executive and without the prior written consent of the
Corporation shall not be assignable by the Executive other than
by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the
Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Corporation and its successors. The
Corporation shall require any successor or assign (whether
direct or indirect, by purchase, merger, consolidation or
otherwise) to or of all or substantially all of the business
and/or assets of the Corporation, by an agreement in form and
substance satisfactory to the Executive, expressly, absolutely
and unconditionally to assume and agree to perform this
Agreement in the same manner and to the same extent as the
Corporation would be required to perform it if no such
succession or assignment had taken place.
13. Miscellaneous. (a) The captions of this Agreement are
not part of the provisions hereof and shall have no force or
effect. This Agreement may not be amended or modified otherwise
than by a written agreement executed by the parties hereto or
their respective successors and legal representatives.
(b) All notices and other communications hereunder shall
be in writing and shall be given by hand delivery to the
other party or by registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Executive:
XxxxxXxxx XxxxXxxx
Address
Of Zip
If to the Corporation:
Crompton Corporation
Xxx Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
or to such other address as either party shall have furnished
to the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by
the addressee.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(d) The Corporation may withhold from any amounts payable
under this Agreement such Federal, state or local taxes as shall
be required to be withheld pursuant to any applicable law or
regulation.
(e) This Agreement contains the entire understanding of
the Corporation and the Executive with respect to the subject
matter hereof and supersedes all prior agreements between them
with respect thereto, including without limitation, the
employment agreement between the Executive and the Corporation
dated as of LastEmpAgmt, which is hereby expressly terminated,
but shall not supercede the Supplemental Retirement Agreement
between the parties dated as of lastSERPAgmt.
(f) The Executive and the Corporation acknowledge that prior
to the Effective Date, the employment of the Executive by the
Corporation is "at will," and may be terminated by either the
Executive or the Corporation at any time.
14. Governing Law; Jurisdiction. The validity,
interpretation, construction and performance of this Agreement
shall be governed by and construed in accordance with the laws
of the State of Delaware, without reference to principles of
conflict of laws. The parties shall use their best efforts and
good will to settle all disputes by amicable negotiations. Any
judicial proceeding brought against any of the parties to this
Agreement or any dispute arising out of this Agreement or any
matter related hereto may be brought in the courts of the State
of Delaware or in the United States District Court for the
State of Delaware, and, by execution and delivery of this
Agreement, each of the parties to this Agreement accepts the
jurisdiction of said courts, and irrevocably agrees to be bound
by any judgment rendered thereby in connection with this
Agreement. The foregoing consent to jurisdiction shall not be
deemed to confer rights on any person other than the respective
parties to this Agreement.
IN WITNESS WHEREOF, the Executive has hereunto set his or her
hand and the Corporation has caused these presents to be
executed in its name on its behalf, all as of the day and year
first above written.
_________________________
XxxxxXxxx XxxxXxxx
Executive
CROMPTON CORPORATION
By:_________________________
Its: Chairman, President and CEO
