Exhibit 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of August 31, 2005
(the "Date of Hire") by and between Celanese Corporation (the "Company") and
Xxxx X. Xxxxxxxxx III (the "Executive").
The Company desires to employ Executive and to enter into an agreement
embodying the terms of such employment;
Executive desires to accept such employment and enter into such an
agreement;
In consideration of the premises and mutual covenants herein and for
other good and valuable consideration, the parties agree as follows:
1. Term of Employment. Subject to the provisions of Section 7 of
this Agreement, Executive shall be employed by the Company for a period
commencing as of the Date of Hire and ending on December 31, 2007 (the
"Employment Term") on the terms and subject to the conditions set forth in this
Agreement. A termination of Executive's employment with the Company as a result
of expiration of the Employment Term shall be referred to as a "Non-Renewal" of
this Agreement.
2. Position.
a. During the Employment Term, Executive shall serve as the
Company's Executive Vice President, Chief Financial Officer. In such position,
Executive shall have such duties and authority as shall be determined from time
to time by the Board of Directors of the Company (the "Board") and the Chief
Executive Officer of the Company.
b. During the Employment Term, Executive will devote
Executive's full business time and best efforts to the performance of
Executive's duties hereunder and will not engage in any other business,
profession or occupation for compensation or otherwise which would conflict or
interfere with the rendition of such services either directly or indirectly,
without the prior written consent of the Board; provided that nothing herein
shall preclude Executive, (i) subject to the prior approval of the Board, from
accepting appointment to or continue to serve on any board of directors or
trustees of any business corporation or any charitable organization or
(ii) from participating in charitable activities or managing personal
investments; provided in each case, and in the aggregate, that such activities
do not conflict or interfere with the performance of Executive's duties
hereunder or conflict with Section 8.
3. Base Salary. During the Employment Term, the Company shall pay
Executive a base salary at the annual rate of $675,000, payable in regular
installments in accordance with the Company's usual payment practices.
Executive shall be entitled to such increases (but no decreases) in Executive's
base salary, if any, as may be determined from time to time in the sole
discretion of the Board. Executive's annual base salary, as in effect from time
to time, is hereinafter referred to as the "Base Salary".
4. Annual Bonus. With respect to each full calendar year during the
Employment Term, Executive shall be eligible to earn an annual bonus award (an
"Annual Bonus") targeted at eighty percent (80%) of Executive's Base Salary
(the "Target"), payout to range from 0-200% of Target, based upon the
achievement of performance targets established by the Board, Executive's 2005
Bonus payable in 2006 will be guaranteed at Target and will be prorated based
upon the Executive's Date of Hire.
5. Employee Benefits. During the Employment Term, Executive shall be
entitled to participate in the Company's compensation and employee benefit
plans (other than annual bonus and severance plans) as in effect from time to
time (collectively "Employee Benefits"), on the same basis as those benefits
are generally made available to other senior executives of the Company.
6. Business Expenses. During the Employment Term, reasonable business
expenses incurred by Executive in the performance of Executive's duties
hereunder shall be reimbursed by the Company in accordance with Company
policies.
7. Termination. The Employment Term and Executive's employment hereunder
may be terminated by either party at any time for any reason; provided that
Executive will be required to give the Company at least 30 days advance written
notice of any resignation of Executive's employment. Notwithstanding any other
provision of this Agreement, the provisions of this Section 7 shall exclusively
govern Executive's rights upon termination of employment with the Company and
its affiliates; provided, however, that the terms and conditions of the other
written agreements between the Company and Executive shall be followed insofar
as they provide supplemental rights or privileges with respect to equity or
deferred compensation.
a. By the Company For Cause or By Executive Resignation Without
Good Reason.
(i) The Employment Term and Executive's employment hereunder may be
terminated by the Company for Cause (as defined below) and shall terminate
automatically upon Executive's resignation without Good Reason (as defined in
Section 7(c)).
(ii) For purposes of this Agreement, "Cause" shall mean (A) Executive's
willful failure to perform Executive's duties hereunder (other than as a result
of total or partial incapacity due to physical or mental illness) for a period
of 30 days following written notice by the Company to Executive of such failure,
(B) conviction of, or a plea of nolo contendere to, (x) a felony (other than
traffic-related) under the laws of the United States or any state thereof or any
similar criminal act in a jurisdiction outside the United States or (y) a crime
involving moral turpitude, (C) Executive's willful malfeasance or willful
misconduct which is demonstrably injurious to the Company, (D) any act of fraud
by Executive or (E) Executive's breach of the provisions of Sections 8 or 9 of
this Agreement.
(iii) If Executive's employment is terminated by the Company for Cause, or
if Executive resigns without Good Reason, Executive shall be entitled to
receive:
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(A) the Base Salary through the date of termination;
(B) any Annual Bonus earned but unpaid as of the date of
termination for any previously completed fiscal year;
(C) reimbursement for any unreimbursed business expenses properly
incurred by Executive in accordance with Company policy prior to the date of
Executive's termination; and
(D) such Employee Benefits, if any, as to which Executive may be
entitled under the employee benefit plans of the Company or its affiliates (the
amounts described in clauses (A) through (D) hereof being referred to as the
"Accrued Rights").
Following such termination of Executive's employment by the Company for
Cause or resignation by Executive without Good Reason, except as set forth in
this Section 7(a)(iii), Executive shall have no further rights to any
compensation or any other benefits under this Agreement.
b. Disability or Death.
(i) The Employment Term and Executive's employment hereunder shall
terminate upon Executive's death and may be terminated by the Company if
Executive becomes physically or mentally incapacitated and is therefore unable
for a period of six (6) consecutive months or for an aggregate of nine
(9) months in any twenty-four (24) consecutive month period to perform
Executive's duties (such incapacity is hereinafter referred to as "Disability").
(ii) Upon termination of Executive's employment hereunder for either
Disability or death, Executive or Executive's estate (as the case may be) shall
be entitled to receive the Accrued Rights.
Following Executive's termination of employment due to death or Disability,
except as set forth in this Section 7(b)(ii), Executive shall have no further
rights to any compensation or any other benefits under this Agreement.
c. By the Company Without Cause or Resignation by
Executive for Good Reason.
(i) The Employment Term and Executive's employment hereunder may be
terminated by the Company without Cause or by Executive's resignation for Good
Reason; provided, however, that Non-Renewal of this Agreement shall be treated
as a termination of employment during the Employment Term without Cause except
in the event of (a) Cause; or (b) Executive's rejection of the offer of
continued employment on terms and conditions not materially less advantageous to
Executive as those in effect immediately prior to the Non-Renewal of this
Agreement (a "Non-Renewal without Cause"). In addition, a Non-Renewal without
Cause shall be treated as a Good Termination for purposes of the Company's
Deferred
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Compensation Plan, 2004 Stock Incentive Plan or any other plans or programs of
the Company that employs a Good Termination definition or employs any
comparable concept.
(ii) For purposes of this Agreement, "Good Reason" shall mean (A) any
reduction in Executive's Base Salary or Annual Bonus opportunity or (B) any
substantial diminution in Executive's position or duties, adverse change in
reporting lines or assignment of duties materially inconsistent with
Executive's position (other than in connection with an increase in
responsibility or a promotion); or (C) a change in the location of the
principal offices of the Company after which the Company requires your
relocation out of the Dallas-Fort Worth metropolitan area; provided that the
events described in clauses (A), (B), or (C) of this Section 7(c)(ii) shall
constitute Good Reason only if the Company fails to cure such event within 30
days after receipt from Executive of written notice of the event which
constitutes Good Reason.
(iii) If Executive's employment is terminated by the Company without
Cause (other than by reason of death or Disability) or if Executive resigns for
Good Reason, Executive shall be entitled to receive:
(A) the Accrued Rights;
(B) a pro rata portion of any Annual Bonus, if any, that
Executive would have been entitled to receive pursuant to Section 4
hereof in such year based upon the percentage of the fiscal year that
shall have elapsed through the date of Executive's termination of
employment, payable when such Annual Bonus would have otherwise been
payable had Executive's employment not terminated, and
(C) subject to Executive's continued compliance with the
provisions of Sections 8 and 9, (x) continued payment of the Base
Salary until twelve months after the date of such termination and (y)
payment of Executive's Target Annual Bonus for the year of
termination, payable over the twelve month period after the date of
such termination, in accordance with the Company's usual payroll
practice; provided that the aggregate amount described in this clause
(C) shall be reduced by the present value of any other cash severance
or termination benefits payable to Executive under any other plans,
programs or arrangements of the Company or its affiliates.
Following Executive's termination of employment by the
Company without Cause (other than by reason of Executive's death or Disability)
or by Executive's resignation for Good Reason, except as set forth in this
Section 7(c)(iii), Executive shall have no further rights to any compensation or
any other benefits under this Agreement.
d. Continued Employment Beyond the Expiration
of the Employment Term. Unless the parties otherwise agree in writing,
continuation of Executive's employment with the Company beyond the expiration
of the Employment Term shall be deemed an employment at-will and shall not be
deemed to extend any of the provisions of this Agreement and Executive's
employment may thereafter be terminated at will by either Executive or the
Company; provided that the provisions of Sections 8, 9 and 10 of this Agreement
shall survive any termination of this Agreement or Executive's termination of
employment hereunder.
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e. Notice of Termination. Any purported termination of
employment by the Company or by Executive (other than due to Executive's death)
shall be communicated by written Notice of Termination to the other party hereto
in accordance with Section 11(g) hereof. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of employment under the provision so indicated.
f. Board/Committee Resignation. Upon termination of Executive's
employment for any reason, Executive agrees to resign, as of the date of such
termination and to the extent applicable, from the Board (and any committees
thereof) and the Board of Directors (and any committees thereof) of any of the
Company's affiliates.
8. Non-Competition.
a. Executive acknowledges and recognizes the highly competitive
nature of the businesses of the Company and its affiliates and accordingly
agrees as follows:
(1) During the Employment Term and, for a period of one year
following the date Executive ceases to be employed by the Company (the
"Restricted Period"), Executive will not, whether on Executive's own behalf or
on behalf of or in conjunction with any person, firm, partnership, joint
venture, association, corporation or other business organization, entity or
enterprise whatsoever ("Person"), directly or indirectly solicit or assist in
soliciting in competition with the Company, the business of any client or
prospective client:
(i) with whom Executive had personal contact or dealings on
behalf of the Company during the one year period preceding
Executive's termination of employment;
(ii) with whom employees reporting to Executive have had personal
contact or dealings on behalf of the Company during the
one-year immediately preceding the Executive's termination
of employment; or
(iii) for whom Executive had direct or indirect responsibility
during the one-year period immediately preceding Executive's
termination of employment.
(2) During the Restricted Period, Executive will not directly or
indirectly:
(i) engage in any business that competes with the business of
the Company or its affiliates (including, without
limitation, businesses which the Company or its affiliates
have specific plans to conduct in the future and as to which
Executive is aware of such planning) (a "Competitive
Business");
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(ii) enter the employ of, or render any services to, any Person
(or any division or controlled or controlling affiliate of
any Person) who or which engages in a Competitive
Business;
(iii) acquire a financial interest in, or otherwise become
actively involved with, any Competitive Business, directly
or indirectly, as an individual, partner, shareholder,
officer, director, principal, agent, trustee or
consultant; or
(iv) interfere with, or attempt to interfere with, business
relationships (whether formed before, on or after the date
of this Agreement) between the Company or its affiliates
and customers, clients, supplier's partners, members or
investors of the Company or its affiliates.
(3) Notwithstanding anything to the contrary in this
Agreement, Executive may directly or indirectly own, solely as an investment,
securities of any Person engaged in the business of the Company or its
affiliates which are publicly traded on a national or regional stock exchange
or on the over-the-counter market if Executive (i) is not a controlling person
of, or a member of a group which controls, such person and (ii) does not,
directly or indirectly, own 5% or more of any class of securities of such
Person.
(4) During the Restricted Period, Executive will not, whether
on Executive's own behalf or on behalf of or in conjunction with any Person,
directly or indirectly:
(i) solicit or encourage any employee of the Company or its
affiliates to leave the employment of the Company or its
affiliates (other than as a result of a general
advertisement of employment made by Executive's subsequent
employer or business, not directed at any such employee);
or
(ii) hire any such employee who was employed by the Company or
its affiliates as of the date of Executive's termination
of employment with the Company or who left the employment
of the Company or its affiliates coincident with, or
within one year prior to or after, the termination of
Executive's employment with the Company.
(5) During the Restricted Period, Executive will not,
directly or indirectly, solicit or encourage to cease to work with the Company
or its affiliates any consultant then under contract with the Company or its
affiliates.
b. It is expressly understood and agreed that although
Executive and the Company consider the restrictions contained in this Section 8
to be reasonable, if a final judicial determination is made by a court of
competent jurisdiction that the time or territory or any other restriction
contained in this Agreement is an unenforceable restriction against Executive,
the provisions of this Agreement shall not be rendered void but shall be deemed
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amended to apply as to such maximum time and territory and to such maximum
extent as such court may judicially determine or indicate to be enforceable.
Alternatively, if any court of competent jurisdiction finds that any
restriction contained in this Agreement is unenforceable, and such restriction
cannot be amended so as to make it enforceable, such finding shall not affect
the enforceability of any of the other restrictions contained herein.
9. Confidentiality: Intellectual Property.
a. Confidentiality.
(i) Executive will not at any time (whether during or after
Executive's employment with the Company) (x) retain or use for the benefit,
purposes or account of Executive or any other Person; or (y) disclose, divulge,
reveal, communicate, share, transfer or provide access to any Person outside the
Company (other than its professional advisers who are bound by confidentiality
obligations), any non-public, proprietary or confidential information --
including without limitation trade secrets, know-how, research and development,
software, databases, inventions, processes, formulae, technology, designs and
other intellectual property, information concerning finances, investments,
profits, pricing, costs, products, services, vendors, customers, clients,
partners, investors, personnel, compensation, recruiting, training, advertising,
sales, marketing, promotions, government and regulatory activities and approvals
-- concerning the past, current or future business, activities and operations of
the Company, its subsidiaries or affiliates and/or any third party that has
disclosed or provided any of same to the Company on a confidential basis
("Confidential Information") without the prior written authorization of the
Board.
(ii) "Confidential Information" shall not include any information
that is (a) generally known to the industry or the public other than as a result
of Executive's breach of this covenant; (b) made legitimately available to
Executive by a third party without breach of any confidentiality obligation; or
(c) required by law to be disclosed; provide that Executive shall give prompt
written notice to the Company of such requirement, disclose no more information
than is so required, and cooperate with any attempts by the Company to obtain a
protective order or similar treatment.
(iii) Upon termination of Executive's employment with the Company
for any reason, Executive shall (x) cease and not thereafter commence use of any
Confidential Information or intellectual property (including without limitation,
any patent, invention, copyright, trade secret, trademark, trade name, logo,
domain name or other source indicator) owned or used by the Company, its
subsidiaries or affiliates; (y) immediately destroy, delete, or return to the
Company, at the Company's option, all originals and copies in any form or medium
(including memoranda, books, papers, plans, computer files, letters and other
data) in Executive's possession or control (including any of the foregoing
stored or located in Executive's office, home, laptop or other computer, whether
or not Company property) that contain Confidential Information or otherwise
relate to the business of the Company, its affiliates and subsidiaries, except
that Executive may retain only those portions of any personal notes, notebooks
and diaries that do not contain any Confidential Information; and (z) notify and
fully
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cooperate with the Company regarding the delivery or destruction of any other
Confidential Information of which Executive is or becomes aware.
b. Intellectual Property.
(i) If Executive has created, invented, designed, developed,
contributed to or improved any works of authorship, inventions, intellectual
property, materials, documents or other work product (including without
limitation, research, reports, software, databases, systems, applications,
presentations, textual works, content, or audiovisual materials) ("Works"),
either alone or with third parties, prior to Executive's employment by the
Company, that are relevant to or implicated by such employment ("Prior Works"),
Executive hereby grants the Company a perpetual, non-exclusive, royalty-free,
worldwide, assignable, sublicensable license under all rights and intellectual
property rights (including rights under patent, industrial property, copyright,
trademark, trade secret, unfair competition and related laws) therein for all
purposes in connection with the Company's current and future business. A list
of all such Works as of the date hereof is attached hereto as Exhibit A.
(ii) If Executive creates, invents, designs, develops, contributes to
or improves any Works, either alone or with third parties, at any time during
Executive's employment by the Company and within the scope of such employment
and/or with the use of any the Company resources ("Company Works"), Executive
shall promptly and fully disclose same to the Company and hereby irrevocably
assigns, transfers and conveys, to the maximum extent permitted by applicable
law, all rights and intellectual property rights therein (including rights
under patent, industrial property, copyright, trademark, trade secret, unfair
competition and related laws) to the Company to the extent ownership of any
such rights does not vest originally in the Company.
(iii) Executive agrees to keep and maintain adequate and current
written records (in the form of notes, sketches, drawings, and any other form
or media requested by the Company) of all Company Works. The records will be
available to and remain the sole property and intellectual property of the
Company at all times.
(iv) Executive shall take all requested actions and execute all
requested documents (including any licenses or assignments required by a
government contract) at the Company's expense (but without further
remuneration) to assist the Company in validating, maintaining, protecting,
enforcing, perfecting, recording, patenting or registering any of the Company's
rights in the Prior Works and Company Works. If the Company is unable for any
other reason to secure Executive's signature on any document for this purpose,
then Executive hereby irrevocably designates and appoints the Company and its
duly authorized officers and agents as Executive's agent and attorney in fact,
to act for and in Executive's behalf and stead to execute any documents and to
do all other lawfully permitted acts in connection with the foregoing.
(v) Executive shall not improperly use for the benefit of, bring to
any premises of, divulge, disclose, communicate, reveal, transfer or provide
access to, or share with the Company any confidential, proprietary or
non-public information or intellectual property
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relating to a former employer or other third party without the prior written
permission of such third party. Executive hereby indemnifies, holds harmless and
agrees to defend the Company and its officers, directors, partners, employees,
agents and representatives from any breach of the foregoing covenant. Executive
shall comply with all relevant policies and guidelines of the Company,
including regarding the protection of confidential information and intellectual
property and potential conflicts of interest. Executive acknowledges that the
Company may amend any such policies and guidelines from time to time, and that
Executive remains at all times bound by their most current version.
(vi) The provisions of Section 9 shall survive the termination of
Executive's employment for any reason.
10. Specific Performance. Executive acknowledges and agrees that the
Company's remedies at law for a breach or threatened breach of any of the
provisions of Section 8 or Section 9 would be inadequate and the Company would
suffer irreparable damages as a result of such breach or threatened breach. In
recognition of this fact, Executive agrees that, in the event of such a breach
or threatened breach, in addition to any remedies at law, the Company, without
posting any bond, shall be entitled to cease making any payments or providing
any benefit otherwise required by this Agreement and obtain equitable relief in
the form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available.
11. Miscellaneous.
a. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflicts of laws principles thereof.
b. Entire Agreement/Amendments. This Agreement contains the
entire understanding of the parties with respect to the employment of Executive
by the Company. Other than as specifically set forth in other written
agreements, between the parties, there are no restrictions, agreements,
promises, warranties, covenants or undertakings between the parties with respect
to the subject matter herein other than those expressly set forth herein. This
Agreement may not be altered, modified, or amended except by written instrument
signed by the parties hereto.
c. No Waiver. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the right thereafter
to insist upon strict adherence to that term or any other term of this
Agreement.
d. Severability. In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
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e. Assignment. This Agreement, and all of Executive's rights
and duties hereunder, shall not be assignable or delegable by Executive. Any
purported assignment or delegation by Executive in violation of the foregoing
shall be null and void ab initio and of no force and effect. This Agreement may
be assigned by the Company to a person or entity which is an affiliate or
successor in interest to substantially all of the business operations of the
Company. Upon such assignment, the rights and obligations of the Company
hereunder shall become the rights and obligations of such affiliate or
successor person or entity.
f. Successor; Binding Agreement. This Agreement shall inure to
the benefit of and be binding upon personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees.
g. Notice. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered by hand or overnight
courier or three days after it has been mailed by United States registered
mail, return receipt requested, postage prepaid, addressed to the respective
addresses set forth below in this Agreement, or to such other address as either
party may have furnished to the other in writing in accordance herewith, except
that notice of change of address shall be effective only upon receipt.
If to the Company:
0000 Xxxx XXX Xxxxxxx
Xxxxxx, XX 00000-0000
Attention: General Counsel
If to Executive:
To the most recent address of Executive set forth in the personnel records
of the Company.
h. Prior Agreements. This Agreement supersedes all prior
agreements and understandings (including verbal agreements) between Executive
and the Company and/or its affiliates regarding the terms and conditions of
Executive's employment with the Company and/or its affiliates, including,
without limitation, the offer letter between Executive and the Company (or its
predecessor) dated as of the Date of Hire.
i. Cooperation. Executive shall provide Executive's reasonable
cooperation in connection with any action or proceeding (or any appeal from any
action or proceeding) which relates to events occurring during the Executive's
employment hereunder. This provision shall survive any termination of this
Agreement.
j. Withholding Taxes. The Company may withhold from any
amounts payable under this Agreement such Federal, state and local taxes as may
be required to be withheld pursuant to any applicable law or regulation.
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k. Counterparts. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
CELANESE CORPORATION Xxxx X. Xxxxxxxxx III
/s/ Xxxxx X. Xxxxxx /s/ Xxxx X. Xxxxxxxxx III
------------------------------ ------------------------------
By: Xxxxx X. Xxxxxx 8/30/05
Title: Sr. Vice-President Human Resources
and Communications
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