SEPARATION AGREEMENT AND GENERAL RELEASE
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THIS
SEPARATION AGREEMENT AND GENERAL RELEASE, dated as of APRIL 1, 2007 (the
“Agreement”),
by
and between CHEMTURA CORPORATION, a DELAWARE corporation (the “Company”)
and
XXXXXX XXXXXXX-XXXXX (the “Executive”).
WHEREAS,
the Company and the Executive have agreed to the Executive's resignation as
an
officer of the Company, and as a director and/or officer of each subsidiary
and
affiliate of the Company, as applicable;
WHEREAS,
the Company wishes to terminate the Executive’s employment as set forth in this
Agreement; and
WHEREAS,
except as otherwise set forth herein, the parties intend that this Agreement
shall set forth the terms, respectively, of the Executive’s resignation and
termination and that this Agreement shall supersede all prior agreements between
the parties regarding the subject matter contained herein.
NOW,
THEREFORE, in consideration of the covenants and agreements hereinafter set
forth in this Agreement, the parties hereto hereby agree as
follows:
1. Termination;
Resignation. The Executive’s employment with and service to the Company and each
of its subsidiaries and affiliates (collectively, the “Company Group”), as
applicable, hereby is terminated and the Executive hereby resigns from each
and
every position, office and directorship with the Company Group, as of May 31,
2007 (the “Separation Date”).
2. Severance
Payments and Benefits. In consideration of the covenants set forth herein and
the waiver and release of claims set forth below, and provided,
that
the
Executive does not revoke this Agreement during the Revocation Period (as
defined below), the Company shall provide the Executive with the following
severance payments and benefits:
(a) Severance
Payments.
The
Company shall pay the Executive separation pay equal to 52 weeks of his base
salary at the current annual rate of $425,000. This separation pay will
be
paid in substantially equal installments, in accordance with the Company’s
regular payroll practices (but in no event less than biweekly), and commencing
on the next regularly scheduled payroll date that is
at
least ten (10) business days after the Effective Date, as defined below (the
“Severance
Period”);
provided,
however, that
all
separation pay shall be paid by and the Severance Period shall not extend past
March 15, 2008. In
addition, if as of the twelve month anniversary of the Effective Date the
Executive is not employed (or engaged in self-employment), then not more than
ten (10) business days after the last day of the month in which the eighteen
month anniversary of the Effective Date falls, the Company shall pay to the
Executive a lump sum payment equal to 26 weeks of base salary ($212,500)
multiplied by the "Mitigation
Factor."
The
Mitigation Factor shall mean a fraction, the numerator of which is the total
number of days the Executive is employed (or engaged in self-employment as
defined in Addendum A) in any capacity between the twelve month and eighteen
month anniversaries of the Effective Date, and the denominator of which is
182.
Addendum 1 includes additional details regarding eligibility for the separation
pay that is subject to the Mitigation Factor.
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(b) Annual
Bonus.
The
Executive will not be eligible for any bonus for calendar year 2007, or any
prior or subsequent year.
(c) Treatment
of Equity-Based Compensation.
Except
as otherwise provided in this Section 2(c), the Executive’s rights as of the
Separation Date with respect to all equity-based compensation awards previously
granted or awarded to the Executive under any equity-based compensation plan
of
the Company, including, without limitation, the
1998
Long-Term Incentive Plan (the “1998
LTIP”),
the
2006 Chemtura Corporation Long-Term Incentive Plan (the “2006
LTIP”,
and,
together with the 1998 LTIP and the individual grant documents, the
“Equity
Plans”),
including the Executive’s rights with respect to vesting, exercise and
expiration of such awards, shall be determined in accordance with and subject
to
the terms of the applicable Equity Plan.
(i) Stock
Options.
The
Executive may exercise any employee stock options granted under the Equity
Plans
that are outstanding, vested and unexercised as of the Separation Date, in
accordance with the terms of the applicable Equity Plan until the earlier of
December 31, 2007, or the original expiration date of the stock option as stated
at the time of grant. With respect to the 35,000 stock options that were awarded
to the Executive on November 23, 2004, the Company will cause the remaining
11,667 stock options that are not yet vested to become vested as of the
Separation date. All other options granted under the Equity Plans that are
outstanding but unvested as of the Separation Date shall be forfeited as of
the
Separation Date. Attached hereto as Attachment 1 is a list of the Executive’s
outstanding, vested and unexercised stock option awards as of the Separation
Date and the expiration date for each such award.
(ii) Restricted
Stock.
With
respect to the 15,000 restricted shares awarded to the Executive under the
1998
LTIP on February 23, 2005 (in respect of the 2005-2007 LTIP Award Agreement),
the Company has delivered to the Executive 6,000 shares, representing that
portion of the 2005-2007 LTIP Award earned as of the Separation Date. The
remaining 9,000 shares, representing that portion of the 2005-2007 LTIP not
earned as of the Separation Date shall be forfeited as of the Separation Date.
With respect to the 5,800 restricted shares awarded to the Executive on January
31, 2006, the Company has delivered to the Executive 2,900 shares representing
that portion of the grant that has vested as of the Separation date. The Company
will cause the remaining 2,900 shares that are not yet vested to become vested
as of the Separation date. All other restricted share grants under the Equity
Plans that are outstanding but unvested as of the Separation Date shall be
forfeited as of the Separation Date. Attached hereto as Attachment 2 is a list
of the Executive’s outstanding, vested restricted share awards as of the
Separation Date.
(d) Pension.
401(k) Plan. Supplemental Savings Plan.
The
Executive shall
retain
his right to any benefits vested through the Separation Date under the Scottish
Widows Group Personal Pension Z03R6393 (the
“Pension
Plan”).
The
Executive shall cease to be a Participant in the Pension Plan, the Chemtura
Corporation Employee Savings Plan (the “401(k)
Plan”)
and
the Chemtura Corporation Supplemental Savings Plan (the “SSP”)
as of
the Separation Date. In addition, the Company shall fully vest any unvested
portion of the Executive’s account balance in the SSP account as of the
Separation Date. At
the Executive’s direction and in accordance with the terms of the applicable
Plan, the Company will following the Separation Date cause the 401(k) Plan
to
distribute an amount equal to the then-vested
balance in the Executive’s 401(k) Plan account. Such amount will be paid to the
Executive or to a qualified rollover account as the Executive shall elect.
In
addition, in accordance with the Executive’s prior election and otherwise in
accordance with the terms of the SSP, the Company will cause the SSP to pay
to
the Executive the balance in the Executive’s SSP Account, after withholding such
amount as is required to satisfy tax withholding requirements. A statement
of
the Executive’s benefits under these Plans shall be provided to the Executive
separately.
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(e) Medical,
Dental and Vision Insurance.
If so
elected by the Executive, the Executive and, as applicable, his eligible
dependents shall continue to be eligible to participate in the Company’s group
medical, dental and vision insurance programs at the active employee rates,
until the earlier of 12 months after the Separation Date and the date on which
the Executive becomes eligible to participate in another group health plan,
provided, that the Executive and, as applicable, his dependents, are eligible
for and have elected to participate in such Company group health programs as
of
the Separation Date. The Executive agrees to promptly notify the Company in
writing in the event that the Executive becomes eligible for coverage under
another group health plan following the Separation Date. Any coverage elected
by
the Executive for him and/or his eligible dependents pursuant to this Section
2(e) shall be pursuant to the Consolidated Omnibus Reconciliation Act of 1986
("COBRA"),
and
will run concurrent with and be applied toward any continuation coverage period
for which the Executive and/or his eligible dependents are eligible under COBRA.
Specific information regarding COBRA will be sent to the Executive
separately.
(f) Life
and Disability Insurance.
Following the Separation Date, the Executive and, as applicable, his eligible
dependents shall continue to be eligible to participate in the Company’s group
life insurance and group long-term disability insurance programs, on the same
terms and conditions as active employees, until the earlier of 12 months after
the Separation Date and the date on which the Executive first becomes eligible
to participate in another group life and/or group long-term disability plan,
provided,
that
the
Executive and, as applicable, his dependents are eligible for and have elected
to participate in such benefits programs as of the Separation Date. The
Executive agrees to promptly notify the Company in writing in the event that
the
Executive is eligible after the Separation Date for coverage under another
group
life insurance program or group long-term disability program, as the case may
be.
(g) Accrued
Vacation.
The
Company shall pay the Executive no later than seven (7) business days after
the
Separation Date, or such earlier date as required by applicable law, for any
vacation that is accrued but unused as of the Separation Date, minus withholding
and other applicable deductions.
(h) Outplacement
Services.
Up to
twelve (12) months of outplacement services will be made available to the
Executive through the Company’s vendor, Xxx Xxxxx Xxxxxxxx. The Executive must
use the Company’s vendor, and the value of this benefit will not be available to
the Executive in cash. More detail regarding this benefit, including when and
where it will be available to the Executive, will be provided
separately.
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(i) Automobile.
As soon
as reasonably practicable after the Effective Date, the Company shall assign
and
transfer ownership to the Executive of the Executive’s current Company-provided
car, free and clear of all encumbrances. The Company shall thereafter have
no
further obligation for insurance, maintenance or other expense associated with
such Company car, and the Executive shall be responsible for paying all federal,
state and local income and employment taxes imposed in connection with such
assignment and transfer.
(j) Relocation
Expenses.
(i) To
the
extent relocation assistance is not offered to the Executive by any new employer
and the Executive has not directly or indirectly requested the new employer
to
not offer or provide such assistance, the Company shall reimburse the Executive,
upon presentation of appropriate documentation and otherwise in accordance
with,
as applicable, the Company’s corporate relocation and/or corporate expense
reimbursement policy in effect at such time, for eligible expenses the Executive
incurs between the date hereof and July 1, 2008 in connection with (a) the
sale
of his Connecticut home (located at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx
06762) and (b) the relocation of his family and household belongings from
Middlebury, Connecticut to a location that is at least 50 miles from Middlebury,
Connecticut (such distance to be determined in accordance with applicable US
tax
regulations regarding moving expenses); provided,
however,
that
such relocation is initiated before April 1, 2008 and completed in all respects
by July 1, 2008.
(ii) The
Company shall reimburse the Executive, upon presentation of appropriate
documentation and otherwise in accordance with, as applicable, the Company’s
corporate relocation and/or corporate expense reimbursement policy in effect
at
such time, for eligible expenses the Executive incurs between the date hereof
and December 31, 2007, in connection with travel by the Executive and his
immediate family between the United States and the United Kingdom. Such
reimbursements in the aggregate shall not exceed $5,000.
The
Company shall reimburse the Executive, upon presentation of appropriate
documentation and otherwise in accordance with the Company’s UK relocation
policy in effect at such time, for eligible expenses related to real estate
agent and solicitor fees, and packing, removal and storage of household goods
that the Executive incurs between the date hereof and April 1, 2008, in
connection with the sale of his United Kingdom home (located at Xxxxx Xxxxxx
Xxxx, Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx Xxxxx, XX0 0XX).
(k) Financial
Planning and Tax Assistance.
The
Company shall pay the Executive $7,500 for financial planning services, and
tax
assistance services. This one-time cash payment will be
paid on the next regularly scheduled payroll date that is
at
least ten (10) business days after the Effective Date, as defined below. The
Executive shall not be entitled to and the Company will not pay, reimburse
or
otherwise have any further obligation to the Executive in respect of financial
planning, tax or other similar services, whether for 2007 or any subsequent
year.
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(l) No
Other Compensation or Benefits.
Except
as otherwise specifically provided herein or as required by Section 4980B(f)
of
the Internal Revenue Code of 1986, as amended (relating to “COBRA”
coverage) or other applicable law, the Executive shall not be entitled to any
compensation or benefits under or to participate in any past, present or future
employee benefit plans programs or arrangements of any member of the Company
Group (including, without limitation, pursuant to the Chemtura Corporation
Executive and Key Employee Severance Plan, or any other plan, program or
arrangement providing severance or similar benefits) on or after the Separation
Date, or otherwise arising out of or relating to the Executive’s resignation as
an officer of the Company, the Executive’s separation from employment with the
Company Group, or the actions contemplated by this Agreement. Nothing in this
Agreement shall require the Company Group or any member thereof to continue
any
employee benefit plan, or obligate the Company Group or any member thereof
to
provide or make available to the Executive any particular employee benefit,
and
the Company reserves the right to amend, modify or terminate any employee
benefit plan, program or arrangement at any time, for any reason, in accordance
with its terms and applicable law.
3. Return
of
Property. The Executive shall, on or prior to the Separation Date, surrender
to
the Company any and all property of the Company Group in the Executive’s
possession or under his control and all property made available to the Executive
in connection with her employment by the Company, including, without limitation,
all (i) confidential or proprietary information concerning the Company Group
or
any of its customers or operations, (ii) original and duplicate copies of all
of
his work product, (iii) keys, security access codes, Company credit cards,
files, calendars, books, records, notes, notebooks, customer lists, proposals
to
customers, manuals, computer programs, papers, electronically stored information
and any other magnetic and other media materials, including any duplicate
copies, as applicable, (iv) computer equipment (including any desktop and/or
laptop computers, handheld computing devices, home systems, printers, computer
disks and diskettes) and fax machines. The Executive may retain the cellular
telephone, although the Company will not maintain the service past the
termination date.
4. Cooperation.
From and after the Separation Date, the Executive shall cooperate in all
reasonable respects with the Company Group and their respective directors,
officers, attorneys and experts in connection with the conduct of any action,
proceeding, investigation or litigation involving the Company Group, and about
which the Executive may have relevant information. Such cooperation and
assistance shall be provided at a time and in a manner which is mutually and
reasonably agreeable to the Executive and the Company, and shall include
providing information and documents, submitting to depositions, providing
testimony and general cooperation to assist the Company.
5. Unfavorable
Comments; Confidentiality of this Agreement.
(a) Public
Comments by the Executive.
The
Executive agrees to refrain from making, directly or indirectly, now or at
any
time in the future, whether in writing, orally or electronically: (i) any
derogatory comment concerning the Company Group or any of their current or
former directors, officers, employees or shareholders, or (ii) any other comment
that could reasonably be expected to be detrimental to the business or financial
prospects or reputation of the Company Group.
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(b) No
Publications.
The
Executive covenants and agrees that, for a period commencing on the Separation
Date and continuing for one year thereafter, unless he gets written permission
in advance from the Company, he will refrain from publishing any book, article
or other written material involving or relating to the Company or any other
member of the Company Group, their respective directors, officers or employees
(any such book, article or other written material, a “Publication”),
and
from collaborating in or providing any information in connection with the
preparation of a Publication that is distributed or disseminated to the general
public or any group or segment thereof, including, without limitation, any
trade
or industry. It shall not be a violation of this covenant (i) if the Executive
provides information to a person whom he does not know, and has no reasonable
basis for knowing, is a journalist, reporter, author, editor, publisher or
other
person involved in print or other media (each, an “Author”),
unless the Executive knows, or has a reasonable basis for knowing, that such
person intends to forward such information to an Author who uses it in a
Publication involving or relating to the Company or any other member of the
Company Group, their respective directors, officers or employees or (ii) if
the
Executive provides information that does not involve or relate to the Company
or
any other member of the Company Group, their directors, officers or employees
to
an Author and does not know, and has no reasonable basis for knowing, that
such
Author will use such information in a Publication involving or relating to
the
Company or any other member of the Company Group, their respective directors,
officers or employees.
(c) Confidentiality
of this Agreement.
The
Executive agrees that the terms of this Agreement (other than the fact of the
Executive’s separation of employment from the Company and the date thereof) are
confidential and that the Executive may not disclose any of such terms to any
other person other than his attorney, financial or tax adviser, accountant
or
spouse, provided,
that the
Executive shall be responsible for any breach of confidentiality by any such
individual. The Executive agrees that he shall instruct his attorney, financial
and tax adviser, accountant and spouse not to disclose such terms to any other
person.
(d) Permitted
Disclosure.
The
provisions of this Section 5 shall not preclude or restrict the Executive from
truthfully, (i) making any disclosure required by law, or (ii) testifying or
otherwise assisting in any investigation by or before any governmental,
regulatory or self-regulatory body or agency with jurisdiction over the
activities of the Company.
6. Confidentiality;
Non-Solicitation; Non-Competition.
(a) Confidential
Information.
The
Executive agrees that he will not at any time, directly or indirectly, reveal
to
any person, entity or other organization (other than the Company Group or their
respective employees, officers, directors, shareholders or agents) or use the
for Executive’s own benefit any information deemed to be confidential by any
member of the Company Group ("Confidential
Information")
relating to the assets, liabilities, employees, goodwill, business or affairs
of
any member of the Company Group including, without limitation, any trade
secrets, information concerning past, present or prospective customers,
manufacturing processes, marketing data, or other confidential information
used
by, or useful to, any member of the Company Group and known (whether or not
known with the knowledge and permission of any member of the Company Group
and
whether or not at any time prior to the Executive’s employment with the Company
developed, devised, or otherwise created in whole or in part by the efforts
of
the Executive) to the Executive by reason of the Executive’s employment by,
shareholdings in or other association with any member of the Company Group.
Notwithstanding anything in this Section 6(a) to the contrary, in the event
that
the Executive becomes legally compelled to disclose any Confidential
Information, the Executive shall provide the Company with prompt written notice
so that the Company may seek a protective order or other appropriate remedy.
In
the event that such protective order or other remedy is not obtained, the
Executive shall furnish only that portion of such Confidential Information
or
take only such action as is legally required by binding order and shall exercise
his reasonable efforts to obtain reliable assurance that confidential treatment
shall be accorded any such Confidential Information. For purposes of this
Section 6(a) and the entirety of Section 6 of this Agreement, the Company Group
shall be interpreted to include any predecessor or successor of the Company
Group or any member thereof.
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(b) Non-Solicitation.
The
Executive agrees that for the period commencing on the Separation Date and
continuing for one year thereafter (the “Restricted
Period”),
the
Executive shall not, without the prior written consent of the Company through
it’s General Counsel (which consent the Company may grant or deny in it’s sole
discretion), directly or indirectly, whether on his own, in association with
or
on behalf of any other person, firm, corporation or other business
organization,
whether
as an individual proprietor or entrepreneur or as an officer, employee,
director, partner, consultant, agent, stockholder or in any other capacity,
(i)
solicit, hire, or endeavor to entice away from the Company Group or any member
thereof any person or entity who is, or during the period beginning 12 months
prior to the Separation Date and continuing through the end of the Restricted
Period was employed by or had served as an agent or key consultant of the
Company Group or any member thereof, or (ii) solicit, hire, or endeavor to
entice away from the Company Group or any member thereof, any person or entity
who is, or during the period beginning 12 months prior to the Separation Date
and continuing through the end of the Restricted Period was (or
to the Executive’s knowledge or the knowledge of the public was reasonably
anticipated to become) a customer or client, supplier,
licensee or other business relation
of the Company Group or any member thereof.
As used
herein the term “indirectly”
shall
include without limitation, the Executive’s permitting the use of the
Executive’s name to solicit away from or to interfere with any employee or
business relationship of the Company Group.
(c) Non-Competition.
(i) The
Executive agrees that for the Restricted Period, the Executive shall not,
without the prior written consent of the Company through it’s General Counsel
(which consent the Company may grant or deny in it’s sole discretion), directly
or indirectly whether on the Executive’s own, in association with or on behalf
of any other person, firm, corporation or other business organization, whether
as an individual proprietor or entrepreneur or as an officer, employee,
director, partner, consultant, agent, stockholder or in any other capacity,
Compete (as defined below) with the Company Group or any member
thereof.
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(ii) For
purposes of this Agreement, the term “Compete”
means:
(A) to engage or plan to engage in any business in which the Company Group
or
any member thereof is or has engaged during the period beginning 12 months
prior
to the Separation Date and continuing through the end of the Restricted Period;
and/or (B) to take or plan to take a position, or otherwise perform or plan
to
perform any services that are materially similar to those provided by the
Executive to the Company Group or any member thereof during the period beginning
12 months prior to the Separation Date and continuing through the end of the
Restricted Period, and/or that may result in the intentional, inadvertent or
incidental use or disclosure of Confidential Information. The Company Group
shall be deemed to be engaged in a business (1) where the Company Group or
any
member thereof has formally announced plans to engage in such business and/or
(2) where the Executive has actual knowledge that the Company Group or any
member thereof plans to engage in such business.
(d) Nothing
herein 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, provided that at any one time the Executive may not own
more than five (5%) percent of the voting securities of any such
corporation.
(e) The
Executive acknowledges that he has carefully read and considered the provisions
of this Section 6 and, having done so, agrees that the restrictions set forth
in
this Section 6 (including, but not limited to, the duration and geographic
scope
of the restrictions set forth in this Section 6) are fair and reasonable and
are
reasonably required for the protection of the interests of the Company Group,
and do not preclude the Executive from earning a livelihood, nor do they
unreasonably impose limitations on the Executive’s ability to earn a living. The
Executive further agrees that the potential harm to the Company Group from
the
non-enforcement of these restrictions outweighs any potential harm to the
Executive.
(f) If
any of
the provisions of this Section 6 are determined to be invalid or unenforceable
to any extent, by reason of being vague or unreasonable as to area, duration
or
scope of activity, that portion of this Section 6 shall be considered divisible
and shall immediately be reformed to the maximum area, duration and scope of
activity as shall be determined to be enforceable by the court having
jurisdiction over the matter. The Executive agrees that any such reformation
shall be valid and binding as though any invalid or unenforceable provision
had
not been included herein.
(g) In
the
event the Executive violates any provision of this Agreement as to which there
is a specific time period during which the Executive is prohibited from taking
certain actions or from engaging in certain activities, then in such event,
such
violation will toll the running of the applicable time period from the date
of
such violation until such violation will cease.
7. Exclusive
Property. The Executive confirms that all Confidential Information is and shall
remain the exclusive property of the Company Group. All business records, papers
and documents kept or made by the Executive relating to the business of the
Company Group shall be and remain the property of the Company Group. The
Executive further confirms that, on or prior to the Separation Date, the
Executive shall have surrendered to the Company all copies and extracts of
any
written Confidential Information acquired or developed by the Executive during
any such employment, shareholding or association, and that the Executive has
not
removed or taken from the premises of any member of the Company Group any
written Confidential Information or any copies or extracts thereof. The
Executive shall promptly make all disclosures, execute all instruments and
papers and perform all acts reasonably necessary to vest and confirm in the
Company Group, fully and completely, all rights created or contemplated by
this
Section 7.
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8. Certain
Remedies. Without intending to limit the remedies available to the Company
Group, the Executive agrees that a breach of any of the covenants contained
in
this Agreement may result in material and irreparable injury to the Company
Group for which there is no adequate remedy at law, that it will not be possible
to measure damages for such injuries precisely and that, in the event of such
a
breach or threat thereof, any member of the Company Group shall be entitled
to
seek a temporary restraining order or a preliminary or permanent injunction,
or
both, without bond or other security, restraining the Executive from engaging
in
activities prohibited by the covenants contained in this Agreement or such
other
relief as may be required specifically to enforce any of the covenants contained
in this Agreement. Such injunctive relief in any court shall be available to
the
Company Group in lieu of, or prior to or pending determination in, any
arbitration proceeding.
9. Release.
(a) In
consideration of the payments and benefits provided to the Executive under
this
Agreement, the Executive agrees to accept the compensation, payments, benefits
and other consideration provided for in this Agreement in full resolution and
satisfaction of, and hereby IRREVOCABLY AND UNCONDITIONALLY RELEASES, REMISES
AND FOREVER DISCHARGES the Company Group from any and all agreements, promises,
liabilities, claims, demands, rights and entitlements of any kind whatsoever,
in
law or equity, whether known or unknown, asserted or unasserted, fixed or
contingent, apparent or concealed, which the Executive, his heirs, executors,
administrators, successors or assigns ever had, now have or hereafter can,
shall
or may have for, upon, or by reason of any matter, cause or thing whatsoever
existing, arising or occurring at any time on or prior to the date the Executive
executes this Agreement, including, without limitation, any and all claims
arising out of or relating to the Executive’s employment, shareholding,
association, service, compensation and benefits with the Company Group and/or
the termination thereof, and any and all contract claims, benefit claims, tort
claims, fraud claims, claims for bonuses, commissions, sales credits, etc.,
defamation, disparagement, or other personal injury claims, severance claims,
claims related to any bonus compensation, claims for accrued vacation pay,
claims under any federal, state or municipal wage payment, discrimination or
fair employment practices law, statute or regulation, and claims for costs,
expenses and attorneys’ fees with respect thereto, except that the Company’s
obligations under this Agreement shall continue in full force and effect in
accordance with their terms. This release and waiver includes, without
limitation, any and all rights and claims under Title VII of the Civil Rights
Act of 1964, as amended, the Civil Rights Act of 1991, as amended, the Civil
Rights Act of 1866 (42 U.S.C. § 1981), as amended, the Employee Retirement
Income Security Act, as amended, the Federal Age Discrimination in Employment
Act, as amended (including the Older Workers Benefit Protection Act), the
Americans with Disabilities Act, as amended, the Fair Labor Standards Act,
as
amended, the National Labor Relations Act, as amended, the Family and Medical
Leave Act, as amended, the federal Worker Adjustment and Retraining Notification
Act or any state or local equivalent, each as amended, the Connecticut Fair
Employment Practices Act, Conn. Gen. Stat. 46a-58 et
seq.,
as
amended, the Connecticut Family and Medical Leave Act, Conn. Gen. Stat. §
31-51kk et seq.,
as
amended, the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. § 42-110a
et seq.,
as
amended, Connecticut wage and hour laws, Conn. Gen. Stat. § 31-58 et seq.,
as
amended, state tort and contract laws, and any other federal, state or local
statute, ordinance, regulation, law or constitutional provision.
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(b) For
the
purpose of implementing a full and complete release and discharge of claims,
the
Executive expressly acknowledges that this Agreement is intended to include
in
its effect, without limitation, all the claims described in the preceding
paragraphs, whether known or unknown, apparent or concealed, and that this
Agreement contemplates the extinction of all such claims, including claims
for
attorney’s fees. The Executive expressly waives any right to assert after the
execution of this Agreement that any such claim, demand, obligation, or cause
of
action has, through ignorance or oversight, been omitted from the scope of
this
Agreement.
(c) For
purposes of this Section 9, the term “the
Company Group”
includes, individually or collectively, each respective past, present and future
direct and indirect parents, subsidiaries, affiliates, divisions, employee
benefit plans, predecessors, successors, insurers, and assigns, and each
respective past, present and future officers, directors, shareholders,
representatives, agents and employees, in their official and individual
capacities, and all other related individuals and entities, jointly and
individually, and this Section 9 shall inure to the benefit of and shall be
enforceable by all such entities and individuals.
(d) The
Executive represents and warrants that he has not assigned any of the claims
being released under this Section 9.
(e) By
signing this Agreement, the Executive hereby acknowledges and confirms that,
in
accordance with the requirements of the Older Workers Benefit Protection Act,
the Executive was provided with the information appended hereto as Attachment
3.
(f) Nothing
in this Agreement is intended to prevent or shall be construed as preventing
the
Executive from participating in any investigation or proceeding conducted by
the
Equal Employment Opportunity Commission (the “EEOC”)
or
similar government agency or from filing a charge of discrimination with the
EEOC or similar government agency; provided,
however,
that no
such action shall result in an award of damages (including without limitation
punitive damages), costs, attorney’s fees, fines, penalties, or other relief to
the Executive, whether monetary or otherwise (collectively, “Damages”),
and
the Executive waives any right to such Damages.
10. Miscellaneous.
(a) Entire
Agreement.
This
Agreement sets forth the entire agreement and understanding of the parties
hereto with respect to the matters covered hereby and, except as expressly
set
forth herein, supersedes and replaces any express or implied, written or oral,
prior agreement, plan or arrangement with respect to the terms of the
Executive’s employment and the termination thereof which the Executive may have
had with the Company Group, including, without limitation, the Chemtura
Corporation Executive and Key Employee Severance Plan. All prior and
contemporaneous discussions and negotiations have been and are merged and
integrated into, and are superseded by, this Agreement with respect to the
matters contained herein.
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(b) Modification;
Amendment.
This
Agreement may not be changed orally, and no modification, amendment or waiver
of
any of the provisions contained in this Agreement, nor any future
representation, promise or condition in connection with the subject matter
of
this Agreement shall be binding upon any party hereto unless made in writing
and
signed by such party.
(c) No
Admission of Wrongdoing.
Nothing
contained in this Agreement shall be deemed to constitute an admission or
evidence of any wrongdoing or liability on the part of the Company Group, or
any
member thereof, nor of any violation of any federal, state or municipal statute,
regulation or principle of common law or equity. The Company Group, and each
member thereof, expressly deny any wrongdoing of any kind in regard to the
Executive’s employment or termination.
(d) Withholding
Taxes.
Any
payments made or benefits provided to the Executive under this Agreement shall
be reduced by any applicable withholding taxes.
(e) Sufficiency
of Consideration.
The
Executive understands and agrees that he is receiving compensation, payments
and/or benefits under this Agreement which are in excess of those to which
he is
entitled from the Company Group, and that such compensation, payments and/or
benefits are being provided to him in consideration for his acceptance,
execution of and compliance with, and in reliance upon his representations
in,
this Agreement, and the Executive acknowledges that such consideration is
adequate and satisfactory to him.
(f) Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Connecticut, without giving effect to the conflicts of laws
principles thereof.
(g) Waiver.
The
failure of any party to this Agreement to enforce any of its terms, provisions
or covenants shall not be construed as a waiver of the same or of the right
of
such party to enforce the same. Waiver by any party hereto of any breach or
default by another party of any term or provision of this Agreement shall not
operate as a waiver of any other breach or default.
(h) Severability.
In the
event that any one or more of the provisions of this Agreement shall be held
to
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remainder of the Agreement shall not in any way be affected or impaired
thereby. Moreover, if any one or more of the provisions contained in this
Agreement shall be held to be excessively broad as to duration, activity or
subject, such provisions shall be construed by limiting and reducing them so
as
to be enforceable to the maximum extent allowed by applicable law.
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(i) Notices.
Unless
otherwise provided expressly herein, any notices required or made pursuant
to
this Agreement shall be in writing and shall be deemed to have been given when
delivered or mailed by United States certified mail, return receipt requested,
postage prepaid, as follows:
if
to the Executive:
Xxxxxx
Xxxxxxx-Xxxxx
000
Xxxxx
Xxxxxx
Xxxxxxxxxx,
XX 00000
if
to the Company:
Chemtura
Corporation
000
Xxxxxx Xxxx
Xxxxxxxxxx,
XX 00000
ATTN.:
General Counsel
or
to
such other address as either party may furnish to the other in writing in
accordance with this Section 10(i). Notices of change of address shall be
effective only upon receipt.
(j) Descriptive
Headings.
The
paragraph headings contained herein are for reference purposes only and shall
not in any way affect the meaning or interpretation of this
Agreement.
(k) Counterparts.
This
Agreement may be executed in one or more counterparts, which, together, shall
constitute one and the same agreement.
(l) Successors
and Assigns.
Except
as otherwise provided herein, this Agreement shall inure to the benefit of
and
shall be binding upon (i) the Company, its successors and assigns, and any
company with which the Company may merge or consolidate or to which the Company
may sell all or substantially all of its assets and (ii) the Executive and
the
Executive’s executors, administrators, heirs and legal representatives. The
Executive may not sell or otherwise assign his rights, obligations, or benefits
under this Agreement and any attempt to do so shall be void.
(m) Litigation.
The
parties shall use their best efforts and good faith 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 Connecticut
or in the United States District Court for the State of Connecticut, and, by
execution and delivery of this Agreement, each of the parties to this Agreement
accepts the jurisdiction of said courts. Each of the Executive and the Company
also agrees not to bring any action or proceeding arising out of or relating
to
this Agreement in any other court or forum. Each of the Executive and the
Company waives any defense of inconvenient forum to the maintenance of any
action or proceeding so brought and waives any bond, surety, or other security
that might be required of the other party with respect thereto. Each party
agrees that a final judgment in any action or proceeding so brought shall be
conclusive and may be enforced by a suit on the judgment or in any other manner
provided by law or at equity. For purposes of this Agreement, a “final
judgment”
shall
mean a judgment that cannot be appealed or is not appealed in the applicable
time period.
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11. Execution
and Return; Revocation. This
Agreement must
not be executed by the Executive prior to the Separation
Date,
and must
be returned to the Company’s Executive Vice President, Human Resources not later
than the Separation date, or the 45th
day following
the Executive’s receipt of this Agreement, whichever is later. This Agreement
may be revoked by the Executive within the seven (7)-day period commencing
on
the date the Executive signs this Agreement (the “Revocation Period”). No such
revocation by the Executive shall be effective unless it is in writing, signed
by the Executive and received by the Company’s Executive Vice
President,
Human
Resources prior to the expiration of the Revocation Period. In the event of
any
such revocation by the Executive, all obligations of the Company under this
Agreement shall terminate and be of no further force and effect as of the date
of such revocation. Because this Agreement affects the Executive’s legal rights,
(including rights under the Age Discrimination in Employment Act of 1967, and
the Older Workers Benefit Protection Act, each as amended), the Executive should
and hereby is advised to consult with an attorney prior to signing this
Agreement.
12. Effective
Date of Agreement. This Agreement shall not become effective until the day
following the last day of the Revocation Period (the “Effective Date”). In the
event that the Executive fails to execute this Agreement in its entirety and
without modification and return this Agreement on a timely basis, or the
Executive so executes, but then elects to revoke this Agreement within the
Revocation Period, this Agreement will be of no force or effect, and neither
the
Executive or the Company Group will have any rights or obligations hereunder.
13. Compliance
with Code Section 409A. To the extent that Section 409A(a)(2)(B)(i) of the
Internal Revenue Code (the “Code”) and the guidance thereunder would require any
payment or benefit otherwise provided for by this Agreement to be delayed,
such
payment or benefit shall be made or commenced as soon as administratively
feasible after the period of delay required by such Section of the Code and
guidance. Without limiting the generality of the foregoing, all payments under
this Agreement are intended to comply with Section 409A of the Code, and this
Agreement will be administered and interpreted in accordance with such
requirements and applicable guidance issued thereunder by the Internal Revenue
Service and/or the Department of the Treasury. The Company reserves the right
to
modify the terms of this Agreement as necessary to comply with such Section
of
the Code and applicable guidance.
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IN
WITNESS WHEREOF, the Company has executed this Agreement as of the date first
set forth above and the Executive has executed this Agreement as of the date
set
forth below.
|
CHEMTURA
CORPORATION
|
|
|
By:______________________________________
|
|
|
Name:
|
|
|
Title:
|
[Remainder
of page intentionally left blank]
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BY
SIGNING THIS AGREEMENT, THE EXECUTIVE ACKNOWLEDGES AND AFFIRMS THAT: (1) HE
IS
COMPETENT; (2) HE WAS AFFORDED A REASONABLE TIME PERIOD OF NOT LESS THAN 45
DAYS
TO REVIEW AND CONSIDER THIS AGREEMENT AND HAS BEEN ADVISED TO DO SO WITH AN
ATTORNEY OF HIS CHOICE; (3) HE HAS READ AND UNDERSTANDS AND ACCEPTS THIS
DOCUMENT AS FULLY AND FINALLY RESOLVING, WAIVING AND RELEASING ANY AND ALL
CLAIMS AND RIGHTS WHICH HE MAY HAVE AGAINST THE COMPANY GROUP (AS DEFINED
ABOVE), INCLUDING, WITHOUT LIMITATION, ANY AND ALL CLAIMS AND RIGHTS UNDER
THE
FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT; (4) NO PROMISES OR INDUCEMENTS
HAVE BEEN MADE TO HIM EXCEPT AS SET FORTH IN THIS AGREEMENT; AND (5) HE HAS
SIGNED THIS AGREEMENT FREELY, KNOWINGLY AND VOLUNTARILY, INTENDING TO BE LEGALLY
BOUND BY ITS TERMS.
ACCEPTED
AND AGREED:
__________________________________
XXXXXX
XXXXXXX-XXXXX
Date:
STATE
OF
_____________________)
.:ss
COUNTY
OF
____________________)
On
this
___ day of _______________(month), ___________(year), before me personally
came__________, to me known, and known to me to be the person described in,
and
who executed, the foregoing Agreement, and who duly acknowledged to me that
he
executed the same.
|
____________________________________________
|
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ATTACHMENT
1
|
STOCK
OPTION SUMMARY AS OF MARCH 30, 2007
|
|||||||||||||
|
TOTAL
|
TOTAL
|
||||||||||||
|
GRANT
|
GRANTED
|
VESTED
|
|||||||||||
|
DATE
|
SHARES
|
FMV$
|
SHARES
|
VESTED
SHARES EXPIRE
|
|||||||||
|
10/19/1999
|
500
|
$8.34375
|
500
|
12/31/2007
|
|||||||||
|
10/31/2000
|
2,500
|
$8.15625
|
2,500
|
12/31/2007
|
|||||||||
|
10/23/2001
|
2,500
|
$7.92
|
2,500
|
12/31/2007
|
|||||||||
|
10/22/2002
|
3,000
|
$7.25
|
3,000
|
12/31/2007
|
|||||||||
|
10/22/2003
|
3,000
|
$5.85
|
3,000
|
12/31/2007
|
|||||||||
|
11/23/2004
|
35,000
|
$11.24
|
35,000
|
12/31/2007
|
|||||||||
|
2/23/2005
|
45,000
|
$12.92
|
30,000
|
12/31/2007
|
|||||||||
|
1/31/2006
|
17,400
|
$12.46
|
5,800
|
12/31/2007
|
|||||||||
|
3/6/2006
|
45,000
|
$10.75
|
15,000
|
12/31/2007
|
|||||||||
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ATTACHMENT
2
|
RESTRICTED
SHARES SUMMARY AS OF MARCH 30, 2007
|
||
|
GRANT
DATE
|
SHARES
GRANTED
|
SHARES
VESTED ON SEPARATION DATE
|
|
11/23/2004
|
13,500
|
0
|
|
2/23/2005
|
15,000
|
6,000
(delivered
2/1/2007)
|
|
1/31/2006
|
5,800
|
2,900
(delivered
1/31/2007)
2,900
(to
vest as of the Separation Date and to be delivered shortly
thereafter)
|
|
3/6/2006
|
15,000
|
0
|
|
49,300
|
11,800
|
|
17
