Exhibit 10.5
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made
by and between Solutia Inc., a Delaware corporation (the "Company"), and
Xxxxxxxx X. Xxxxx (the "Executive"), effective as of the 11th day of April, 2007
(the "Effective Date").
WHEREAS, the Company and the Executive are currently parties to an
Agreement dated April 21, 2005; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its stakeholders
to assure that the Company will have the continued dedication of the Executive
until and for a period of time following the Emergence Date (as defined below).
To induce the Executive to continue to serve the Company through and beyond the
Emergence Date, the Company will provide the Executive with, among other things,
an emergence bonus. It is the Board's judgment that such an emergence bonus
arrangement is in the best interest of the Company and its stakeholders, and is
consistent with the desire of the Board to maximize the value of the Company.
Therefore, in order to accomplish these objectives, the Board has caused the
Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Emergence Bonus Payments.
At such time, if ever (the "Emergence Date"), at which the United
States Bankruptcy Court for the Southern District of New York (the "Bankruptcy
Court") shall have confirmed a plan of reorganization of the Company under
Chapter 11 of the United States Bankruptcy Code (the "Chapter 11 case") and such
plan shall have become effective, then Executive shall be entitled to receive
from the Company an emergence bonus of $500,000 ("Emergence Bonus") as
originally set forth and previously agreed to in Executive's Agreement dated
April 21, 2005. The Emergence Bonus shall be paid in two equal installments, the
first installment to be paid within 10 days of the Emergence Date and the second
installment to be paid on the six-month anniversary of the Emergence Date.
2. Employment Period. The Company hereby agrees to continue the Executive
in its employ, and the Executive hereby agrees to remain in the employ of the
Company subject to the terms and conditions of this Agreement, for the period
commencing on the Effective Date and ending on the date that is the six month
anniversary of the Emergence Date (the "Initial Term") and shall thereafter
automatically renew for an additional three (3) year period (the "Initial
Renewal Term"), unless sooner terminated during the Initial Term or Initial
Renewal Term in accordance with this Agreement or written notice is given by one
party to the other at least 90 days prior to the expiration of the Initial Term
or the Initial Renewal Term, as applicable. Upon completion of the Initial
Renewal Term, this Agreement shall thereafter automatically renew for additional
12 month periods (each, a "Subsequent Renewal Term"), unless sooner terminated
in accordance with this Agreement or written notice is given by one party to the
other at least 90 days prior to the expiration of the Initial Renewal Term or
any Subsequent Renewal Term, as applicable. The Initial Term, Initial Renewal
Term and any Subsequent Renewal Term are herein collectively referred to as the
"Employment Period."
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Where the context permits, all references to the Company shall
include an affiliate of the Company by which the Executive is employed. As used
in this Agreement, the term "affiliate" or "affiliated companies" shall include
any company controlled by, controlling or under common control with the Company.
The obligations of the Company and the Executive under this Agreement including,
without limitation, the obligations under Sections 1, 5, 6 and 7, shall survive
the termination of the Employment Period to the extent necessary to accomplish
the purposes thereof.
3. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period, (A) the Executive shall
continue to serve as Senior Vice President, General Counsel and Corporate
Secretary reporting directly to the Company's Chief Executive Officer,
with authority, duties and responsibilities consistent with such position
and as may be reasonably assigned to her from time to time by the
Company's Chief Executive Officer and (B) the Executive's services shall
be performed at the location where the Executive was employed immediately
preceding the Effective Date or at any office or location of the Company
not more than 50 miles from the Company's headquarters in St. Louis,
Missouri.
(ii) During the Employment Period, the Executive shall serve
the Company faithfully, diligently and to the best of her ability, and
shall devote substantially all of her time and efforts during normal
business hours to the business and affairs of the Company. During the
Employment Period it shall not be a violation of this Agreement for the
Executive to (A) deliver lectures, fulfill speaking engagements or teach
at educational institutions, and (B) manage personal investments, so long
as such activities described in clauses A and B do not interfere with the
performance of the Executive's responsibilities as an employee of the
Company in accordance with this Agreement, and (C) with the advance
approval of the Board, serve on corporate, civic or charitable boards or
committees.
(b) Compensation.
(i) Base Salary. During the Employment Period, the Executive
shall receive an annual base salary ("Annual Base Salary") of not less
than $300,000, and shall be paid in accordance with the Company's normal
payroll practices.
(ii) Annual Bonuses. In addition to Annual Base Salary, the
Executive shall participate in the Company's Annual Incentive Program, or
any successor annual bonus plan(s), with a target annual bonus opportunity
of not less than 75% of her Annual Base Salary. In addition, during the
Employment Period, the Executive shall be entitled to participate in all
long-term and other incentive plans, practices, policies and programs
generally applicable to senior executive officers of the Company and its
affiliated companies.
(iii) Equity Compensation. During the Employment Period, the
Executive shall have the right to participate in an equity compensation
arrangement to be
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established by the Board or the ECDC of the Board and subject to such
terms and conditions as will be determined by the Board in its sole
discretion.
(iv) Savings and Retirement Plans. During the Employment
Period, the Executive shall be entitled to participate in all savings and
retirement plans, practices, policies and programs generally applicable to
senior executive officers of the Company and its affiliated companies,
subject to the Board's authority to modify or terminate any such plans,
practices, policies or programs on a Company-wide basis at any time.
(v) 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 welfare
benefit plans, practices, policies and programs provided by the Company
and its affiliated companies (including, without limitation, medical,
prescription drug, dental, disability, salary continuance, employee life,
group life, accidental death and travel accident insurance plans and
programs) to the extent generally applicable to senior executive officers
of the Company and its affiliated companies, subject to the Board's
authority to modify or terminate any such plans, practices, policies or
programs on a Company-wide basis at any time.
(vi) Expenses. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement, in accordance with
Company policy, for all reasonable expenses incurred by the Executive in
performing her duties hereunder.
(vii) Vacation. During the Employment Period, the Executive
shall be entitled to paid vacation in accordance with the plans, policies,
programs and practices of the Company and its affiliated companies as in
effect from time to time.
4. Termination of Employment.
(a) Death or Disability. The Executive's employment shall terminate
automatically upon the Executive's death during the Employment Period. If the
Company determines in good faith that the Disability of the Executive has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to the Executive written notice in accordance with
Section 9(b) of this Agreement of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company shall
terminate effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective Date"), provided that, within the 30 days
after such receipt, the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the Executive's long-term disability for purposes of any
reasonable occupation as determined under the Company's disability plan that is
applicable to the Executive.
(b) Cause. The Company may terminate the Executive's employment
during the Employment Period for Cause. For purposes of this Agreement, "Cause"
shall mean:
(i) the willful and continued failure of the Executive to
perform substantially the Executive's duties with the Company or one of
its affiliates (other than any such failure resulting from incapacity due
to physical or mental illness), after a
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written demand for substantial performance is delivered to the Executive
by the Board or the Chief Executive Officer of the Company which
specifically identifies the manner in which the Board or Chief Executive
Officer believes that the Executive has not substantially performed the
Executive's duties;
(ii) the willful engaging by the Executive in illegal conduct
or gross misconduct which is materially and demonstrably injurious to the
Company;
(iii) the Executive's conviction of, or plea of guilty or no
contest to, a felony or any other crime involving moral turpitude, fraud,
theft, embezzlement or dishonesty; or
(iv) the Executive's habitual drug or alcohol abuse.
For purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or upon the instructions of the Chief Executive Officer or
a senior officer of the Company or based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Company. The cessation
of employment of the Executive shall not be deemed to be for Cause unless and
until there shall have been delivered to the Executive a copy of a resolution
duly adopted by the affirmative vote of not less than a majority of the entire
membership of the Board at a meeting of the Board called and held for such
purpose (after reasonable notice is provided to the Executive and the Executive
is given an opportunity, together with counsel, in the case of conduct described
in subparagraph (i) or (ii) above, to be heard before the Board), finding that,
in the good faith opinion of the Board, the Executive is guilty of the conduct
described in subparagraph (i), (ii), (iii) or (iv) above, and specifying the
particulars thereof in detail.
(c) Good Reason. The Executive's employment may be terminated by the
Executive for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean:
(i) a material failure by the Company to comply with any of
the provisions of Section 3(b) of this Agreement relating to compensation,
other than an isolated, insubstantial and inadvertent failure not
occurring in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive;
(ii) the assignment to the Executive of any duties
inconsistent in any respect with the Executive's position as Senior Vice
President, General Counsel and Corporate Secretary of the Company
reporting to the Company's Chief Executive Officer and the authority,
duties and responsibilities contemplated by Section 3(a) of this
Agreement, or any other action by the Company, including a fundamental
change to the nature and scope of the Company's business, which results in
a material diminution in such position, title, authority, duties or
responsibilities, excluding for this purpose an
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isolated, insubstantial and inadvertent action not taken in bad faith and
which is remedied by the Company promptly after receipt of notice thereof
given by the Executive;
(iii) the Company's requiring the Executive to be based at any
office or location other than as provided in Section 3(a)(i)(B) hereof or
the Company's requiring the Executive to travel on Company business to a
substantially greater extent than required prior to the Effective Date; or
(iv) Executive's receipt of the Company's written notice not
to renew the Agreement or the failure of the Company and the Executive to
enter into a new employment agreement by no later than the last day of the
Employment Period.
If the executive terminates her employment for Good Reason pursuant to
subparagraph (ii) above, as a result of a sale by the Company of substantially
all of its assets, then the Executive shall make herself available to the
Company as a paid independent consultant for such fee, at such times, over such
period of time and for such number of hours as the parties shall reasonably
agree, taking account of any new employment that the Executive may undertake.
(d) Notice of Termination. Any termination by the Company for Cause,
or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 9(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) to the extent applicable, 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
Date of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the Executive
or the Company, respectively, from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be, (ii) if the Executive's
employment is terminated by the Company other than for Cause or Disability, the
Date of Termination shall be the date on which the Company notifies the
Executive of such termination and (iii) if the Executive's employment is
terminated by reason of death or Disability, the Date of Termination shall be
the date of death of the Executive or the Disability Effective Date, as the case
may be.
5. Obligations of the Company upon Termination.
(a) Good Reason; Other Than for Cause. Except as provided in Section
5(b) below, if, during or after the expiration of the Employment Period, the
Company shall terminate
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the Executive's employment other than for Cause or the Executive shall terminate
employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in
cash within ten days of the Date of Termination (or solely with respect to
any payment to be made pursuant to Section 5(a)(i)(D) below, such other
time as specified in Section 1 herein), the aggregate of the following
amounts:
A. the sum of (1) the Executive's accrued Annual Base
Salary through the Date of Termination, (2) any unpaid annual bonus
earned by the Executive with respect to the previous year, and (3)
any accrued vacation pay, in each case to the extent not theretofore
paid (the sum of the amounts described in clauses (1), (2), and (3)
shall be hereinafter referred to as the "Accrued Obligations"); and
B. an amount equal to the payment the Executive would
have received under the Company's Annual Incentive Program for the
fiscal year of such termination in accordance with Section 3(b)(ii),
multiplied by the number of days that have transpired during that
fiscal year immediately prior to the Date of Termination, divided by
365; and
C. an amount equal to 200% of the sum of (i) the
Executive's Annual Base Salary immediately prior to the Date of
Termination and (ii) the average annualized payment the Executive
received for the 3 years (or such shorter period during which the
Executive has served as Senior Vice President, General Counsel and
Corporate Secretary) immediately preceding the Date of Termination
under the Company's Annual Incentive Program (the "Severance
Payment"); and
D. any unpaid portion of the Emergence Bonus, if any, to
be paid in the amount and in the manner defined in Section 1 herein.
(ii) subject to the provisions of Sections (9)(f) hereof, to
the extent not theretofore paid or provided, the Company shall timely pay
or provide to the Executive any other amounts or benefits, excluding any
severance or separation pay or benefits, required to be paid or provided
or which the Executive is eligible to receive under any plan, program,
policy, practice, contract or agreement of the Company and its affiliated
companies, including, without limitation, the vested benefit, if any, of
the Executive under any qualified defined benefit or defined contribution
retirement plan of the Company and its affiliated companies in which the
Executive participates, in accordance with the terms of such plan (such
other amounts and benefits shall be hereinafter referred to as the "Other
Benefits");
(iii) the Company shall continue to provide at its expense (on
the same basis as at the Executive's Date of Termination) for the
continued participation of the Executive and, to the extent applicable,
her family, in the Company's medical, dental,
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vision and life insurance plans and programs, for a period of four months
commencing with the Date of Termination; and
(iv) the Company shall provide the Executive with outplacement
services during the twelve month period commencing on the Date of
Termination up to an aggregate cost of $25,000.
(b) Change in Control. If the Company shall terminate the
Executive's employment other than for Cause or the Executive shall terminate
employment for Good Reason upon a Change in Control (pursuant to the definition
of Change in Control set forth below) or at any time within 24 months after the
Change in Control, then the Executive shall be entitled to receive (1) all
amounts as provided for in Section 5(a) hereof, provided, however, that the
Severance Payment under this Section 5(b) will be an amount equal to 250% of the
sum of (i) the Executive's Annual Base Salary immediately prior to the Date of
Termination and (ii) the average annualized payment the Executive received for
the 3 most recent years under the Company's Annual Incentive Program (or such
shorter period during which the Executive has served as Senior Vice President,
General Counsel and Corporate Secretary), and (2) immediate vesting of all
outstanding equity awards granted pursuant to the Company's equity compensation
plan as may be in effect from time to time.
(i) For purposes of this Agreement, "Change in Control" shall
be deemed to have occurred if:
A. Any "person" (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act) is or becomes a "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing more than 50%
of the voting power of the then outstanding securities of the
Company, and such person owns more aggregate voting power of the
Company's then outstanding securities entitled to vote generally in
the election of directors than any other person;
B. The shareholders of the Company approve (or, if
shareholder approval is not required, the Board approves) an
agreement providing for (x) the merger or consolidation of the
Company with another corporation where the shareholders of the
Company, immediately prior to the merger or consolidation, will not
beneficially own, immediately after the merger or consolidation,
shares entitling such shareholders to 50% or more of all votes to
which all shareholders of the surviving corporation would be
entitled in the election of directors (without consideration of the
rights of any class of stock to elect directors by a separate class
vote), (y) the sale or other disposition of 50% or more of the
Company's assets that it owns as of the Effective Date of this
Agreement, or (z) a liquidation or dissolution of the Company;
provided, however, the effectiveness of a plan of reorganization
pursuant to which a majority of the common stock of the reorganized
Company is distributed (i) to Persons who are (a) holders of claims
against the Company; (b) holders of equity interests in the Company;
and/or (c) designated in the Company's plan of reorganization
proposal dated December 8, 2006, to receive common stock of the
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reorganized Company; or (ii) to or for the benefit of Company
management, shall not constitute a "Change in Control"; or
C. Directors are elected such that a majority of the
members of the Board shall have been members of the Board for less
than two years, unless the election or nomination for election of
each new director who was not a director at the beginning of such
two-year period was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning
of such period.
(c) Death. If the Executive's employment is terminated by reason of
the Executive's death during the Employment Period, this Agreement shall
terminate without further obligations to the Executive's legal representatives
under this Agreement, other than for timely payment or provision of the
following:
(i) Accrued Obligations;
(ii) Other Benefits; and
(iii) if such termination occurs on or after the Emergence Date,
the entire amount, if any, of the unpaid portion of the Emergence Bonus.
Accrued Obligations shall be paid to the Executive's estate or beneficiary, as
applicable, in a lump sum in cash within 30 days of the Date of Termination.
(d) Disability. If the Executive's employment is terminated by
reason of the Executive's Disability during the Employment Period, this
Agreement shall terminate without further obligations to the Executive, other
than for timely payment or provision of the following:
(i) Accrued Obligations;
(ii) Other Benefits; and
(iii) if such termination occurs on or after the Emergence Date,
the entire amount, if any, of the unpaid portion of the Emergence Bonus.
Accrued Obligations shall be paid to the Executive in a lump sum in cash within
30 days of the Date of Termination.
(e) Cause. If the Executive's employment shall be terminated for
Cause during the Employment Period, this Agreement shall terminate without
further obligations to the Executive, other than for Accrued Obligations and the
timely payment or provision of Other Benefits. In such case, all Accrued
Obligations shall be paid to the Executive in a lump sum in cash within 30 days
of the Date of Termination.
(f) Other than for Good Reason. If the Executive shall voluntarily
terminate employment after the Emergence Date, excluding a termination for Good
Reason, in addition to the Accrued Obligations Executive shall receive, to the
extent not already paid, the Emergence
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Bonus, if any, to which Executive is entitled to under the Solutia Inc.
Emergence Incentive Bonus Program.
6. Full Settlement; Legal Fees. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement, and such amounts
shall not be reduced whether or not the Executive obtains other employment. The
Company agrees to pay, to the full extent permitted by law, all legal fees and
expenses which the Executive may reasonably incur as a result of any contest, in
which the Executive is the prevailing party, by the Company, the Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (whether such contest
is between the Company and the Executive or between either of them and any third
party, and including as a result of any contest by the Executive about the
amount of any payment pursuant to this Agreement), plus in each case interest on
any payment from the time at which the liability for the applicable legal fees
and expenses was incurred by Executive, at the applicable Federal rate provided
for in Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended
(the "Code"). The amounts to be paid by the Company to the Executive under this
Section 6 shall be paid within 30 days of the date on which the obligation to
make such payments arise.
7. Confidential Information and Competitive Activity.
(a) Confidential Information. As used herein, "Confidential
Information" means all technical and business information of the Company and its
affiliated companies, whether patentable or not, which is of a confidential,
trade secret and/or proprietary character and which is either developed by the
Executive (alone or with others) or to which the Executive has had access during
the Executive's employment. "Confidential Information" shall also include
confidential evaluations of, and the confidential use or non-use by the Company
or any affiliated company of, technical or business information in the public
domain.
The Executive shall use the Executive's best efforts and diligence both
during and after employment by the Company to protect the confidential, trade
secret and/or proprietary character of all Confidential Information. The
Executive shall not, directly or indirectly, use (for the Executive or another)
or disclose any Confidential Information, for so long as it shall remain
proprietary or protectible as confidential or trade secret information, except
as may be necessary for the performance of the Executive's duties with the
Company.
The Executive shall deliver promptly to the Company, at the termination of
the Executive's employment, or at any other time at the Company's request,
without retaining any copies, all documents and other material in the
Executive's possession relating, directly or indirectly, to any Confidential
Information.
Each of the Executive's obligations in this Section shall also apply to
the confidential, trade secret and proprietary information learned or acquired
by the Executive during the
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Executive's employment from others with whom the Company or any affiliated
company has a business relationship.
The Executive understands that the Executive is not to disclose to the
Company or any affiliated company, or use for its benefit, any of the
confidential, trade secret or proprietary information of others, including any
of the Executive's former employers.
(b) Competitive Activity; Nonsolicitation. In the event that, during
the Employment Period, Executive shall voluntarily terminate her employment
hereunder, be terminated by the Company without Cause, or terminate her
employment hereunder for Good Reason, then the Executive shall not, directly or
indirectly (whether as owner, partner, consultant, employee or otherwise), at
any time during the six months following termination of her employment with the
Company or any affiliate for any reason, engage in or contribute her knowledge
to any work or activity that involves a product, process, apparatus, service or
development which is then competitive with or similar to a product, process,
apparatus, service or development on which she worked or with respect to which
she had access to Confidential Information while employed by the Company or an
affiliate at any time during the period of five years immediately prior to her
Date of Termination ("Competitive Work"). However, the Executive shall be
permitted to engage in such proposed work or activity, and the Company shall
furnish her a written consent to that effect signed by an officer of the
Company, if the Executive shall have furnished to the Company clear and
convincing written evidence, including assurances from the Executive and her new
employer, that the fulfillment of her duties in such proposed work or activity
would not likely cause her to disclose, base judgment upon, or use any
Confidential Information. In addition, during her employment by the Company or
an affiliate and for a period of six months thereafter, the Executive shall not,
directly or indirectly, (i) induce or attempt to induce a salaried employee of
the Company or any of its affiliates to accept employment or affiliation
involving Competitive Work with another firm or corporation of which the
Executive is an employee, owner, partner or consultant, or (ii) induce or
attempt to induce any customer, supplier, licensee or other person having a
business relationship with the Company to cease doing business with the Company
or interfere materially with the relationship between the Company and any such
customer, supplier, licensee or other person having a business relationship with
the Company.
(c) Injunctive Relief. Executive agrees that the restrictions
imposed upon her by this Section 7 are fair and reasonable considering the
nature of the Company's business and are reasonably required for the protection
of the Company. Executive also acknowledges that a breach of any of the
provisions of this Section 7 may result in continuing and irreparable damages to
the Company for which there may be no adequate remedy at law, and that the
Company, in addition to all other relief available to it, shall be entitled to
the issuance of a temporary restraining order, preliminary injunction and
permanent injunction restraining the Executive from committing or continuing to
commit any breach of the provisions of this Section 7.
(d) Blue Pencil. If, at any time, the provisions of this Section 7
shall be determined to be invalid or unenforceable under any applicable law, by
reason of being vague or unreasonable as to area, duration or scope of activity,
this Agreement shall be considered divisible and shall become and be immediately
amended to only such area, duration and scope of
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activity as shall be determined to be reasonable and enforceable by the court or
other body having jurisdiction over the matter and the Executive and the Company
agree that this Agreement as amended shall be valid and binding as though any
invalid or unenforceable provision had not been included herein.
8. Successors.
(a) This Agreement is personal to the Executive and without the
prior written consent of the Company shall not be assignable by the Executive
otherwise 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 Company and its successors and assigns.
9. Miscellaneous.
(a) 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 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:
Xxxxxxxx X. Xxxxx, Esq.
[address]
If to the Company:
Xxxxxx X. Xxxxx, Esq.
Chairman of the Board, President and Chief Executive Officer
Solutia Inc.
X.X. Xxx 00000
Xx. Xxxxx, XX 00000-0000
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 one or more provisions
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
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(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder shall not be deemed to be
a waiver of such provision or right or any other provision or right of this
Agreement.
(f) With the exception of the agreement dated as of June 17, 2004,
between the Company and the Executive (the "Retention Agreement"), this
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements, oral and
written, between the parties hereto with respect to the subject matter hereof,
including the Agreement dated April 21, 2005, and any other prior employment
agreement between the Company and the Executive and the Executive waives all
rights with respect to such agreements, including, without limitation, any
claims for damages related to such agreements; provided, that this Agreement
shall have no effect on the Executive's rights under any plan, program, policy
or practice provided by the Company or any of its affiliated companies except
that the benefits and other payments provided for pursuant to Section 5 hereof
shall be in lieu of any severance or separation pay or benefits to which the
Executive might otherwise be entitled under any plan, program, policy or
arrangement of the Company and its affiliates. In consideration of the
promises set forth in the Agreement, and of the mutual releases set forth in
this paragraph, each party hereto relinquishes all rights, and releases the
other from all promises, liabilities and commitments that may have existed and
any other employment agreements, which shall be null and void and of no
further effect.
(g) No amounts shall be payable pursuant to Sections 5(a)(i)(B),
5(a)(i)(C), 5(a)(i)(D) or 5(b) of this Agreement unless and until the Executive
shall have executed and delivered a waiver and release of claims against the
Company substantially in the form attached hereto as Exhibit A.
(h) Except as otherwise provided by Section 7(c), in the event of
any dispute, controversy or claim arising out of or relating to this Agreement
or Executive's employment or termination thereof, the parties hereby agree to
settle such dispute, controversy or claim in a binding arbitration by a single
arbitrator in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, which arbitration shall be conducted in St. Louis,
Missouri. The parties agree that the arbitral award shall be final and
non-appealable and, except as otherwise provided by Section 7(c), shall be the
sole and exclusive remedy between the parties hereunder. The parties agree that
judgment on the arbitral award may be entered in any court having competent
jurisdiction over the parties or their assets.
10. Code Section 409A. Compliance. The arrangements under this Agreement
are not intended to create "deferred compensation" within the meaning of Section
409A of the Internal Revenue Code of 1986, as amended (the "Code") and any
rulings or regulations thereunder, including IRS Notice 2005-1, and all
provisions of this Agreement shall be interpreted consistently with such intent.
In the event that any amounts payable under this Agreement that would otherwise
be considered deferred compensation pursuant to Section 409A
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of the Code (or any applicable regulations or guidance promulgated by the
Secretary of the Treasury in connection therewith) are paid within six (6)
months following the date of termination of employment, such amounts shall be
paid at the earlier of the time otherwise provided under this Agreement or the
time that will prevent such amounts from being considered deferred compensation
under Section 409A of the Code. Further, in the event that (a) the Company
determines that there is an ambiguity with respect to any provision of this
Agreement that could cause such provision to result in an obligation to pay
deferred compensation subject to Section 409A of the Code, such ambiguity shall
be interpreted and resolved in the manner that the Company deems necessary to
either avoid the obligation to pay deferred compensation within the meaning of
Section 409A of the Code or to comply with timing and payment provisions of
Section 409A of the Code, and (b) the Company determines, in good faith, that
any amendment to this Agreement is necessary or appropriate in order to comply
with timing and payment provisions of Section 409A of the Code or to avoid the
obligation to pay deferred compensation within the meaning of Section 409A of
the Code, the Company shall have the right to make such amendment, on a
prospective or retroactive basis, in its sole discretion.
11. Code Section 4999. If, as a result of payments provided for under or
pursuant to this Agreement together with all other payments in the nature of
compensation provided to or for the benefit of Executive, any state, local or
federal taxing authority imposes any taxes on Executive that would not be
imposed on such payments but for the occurrence of a Change of Control,
including any excise tax under Section 4999 of the Code, then, in addition to
any other benefits provided under or pursuant to this Agreement or otherwise,
the Company (including any successor to or assignee of the Company) shall pay to
Executive at the time any such payments are made under or pursuant to this
Agreement or the other agreements, an amount equal to the amount of any such
taxes imposed or to be imposed on Executive (the amount of any such payment, the
"Tax Reimbursement"). In addition, the Company (including any successor to or
assignee of the Company) shall "gross up" such Tax Reimbursement by paying to
Executive at the same time an additional amount equal to the aggregate amount of
any additional taxes (whether income taxes, excise taxes, special taxes,
employment taxes or otherwise) that are or will be payable by Executive as a
result of the Tax Reimbursement being paid or payable to Executive and/or as a
result of the additional amounts paid or payable to Executive pursuant to this
sentence, such that after payment of such additional taxes Executive shall have
been paid on a net after-tax basis an amount equal to the Tax Reimbursement. The
amount of any Tax Reimbursement and of any such gross-up amounts shall be
determined by the Company's independent auditing firm, whose determination,
absent manifest error, shall be treated as conclusive and binding absent a
binding determination by a governmental taxing authority that a greater amount
of taxes is payable by Executive.
12. Counterparts. This Agreement may be executed in separate counterparts,
each of which is deemed to be an original and all of which taken together
constitute one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other party in original or facsimile form.
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and,
pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
-------------------------------
Xxxxxxxx X. Xxxxx
SOLUTIA INC.
By
-----------------------------
Xxxxxx X. Xxxxx
Chairman of the Board, President and
Chief Executive Officer
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Exhibit A
WAIVER AND RELEASE
Reference is made to that Amended and Restated Employment Agreement (the
"Agreement"), dated as of April 11, 2007, by and between Solutia, Inc., a
Delaware Corporation (the "Company"), and Xxxxxxxx X. Xxxxx (the "Executive").
This Waiver and Release (this "Waiver") is made as of the __ day of
____________, 200_, by the Executive pursuant to Section 9(g) of the Agreement.
Release and Waiver of Claims Against the Company
(a) The Executive, on behalf of herself, her agents, heirs, successors,
assigns, executors and administrators, in consideration for the payments and
other consideration provided for under the Agreement, hereby forever releases
and discharges the Company and its successors, their affiliated entities, and
their past and present directors, employees, agents, attorneys, accountants,
representatives, plan fiduciaries, successors and assigns from any and all known
and unknown causes of action, actions, judgments, liens, indebtedness, damages,
losses, claims, liabilities, and demands of whatsoever kind and character in any
manner whatsoever arising on or prior to the date of this Waiver, including but
not limited to (i) any claim for breach of contract, breach of implied covenant,
breach of oral or written promise, wrongful termination, intentional infliction
of emotional distress, defamation, interference with contract relations or
prospective economic advantage, negligence, misrepresentation or employment
discrimination, and including without limitation alleged violations of Title VII
of the Civil Rights Act of 1964, as amended, prohibiting discrimination based on
race, color, religion, sex or national origin; the Family and Medical Leave Act;
the Americans With Disabilities Act; the Age Discrimination in Employment Act;
other federal, state and local laws, ordinances and regulations; and any
unemployment or workers' compensation law, excepting only those obligations of
the Company expressly recited in the Agreement or this Waiver and any claims to
benefits under the Company's employee benefit plans as defined exclusively in
written plan documents; (ii) any and all liability that was or may have been
alleged against or imputed to the Company by the Executive or by anyone acting
on her behalf; (iii) all claims for wages, monetary or equitable relief,
employment or reemployment with the Company in any position, and any punitive,
compensatory or liquidated damages; and (iv) all rights to and claims for
attorneys' fees and costs except as otherwise provided herein or in the
Agreement.
(b) The Executive shall not file or cause to be filed any action, suit,
claim, charge or proceeding with any federal, state or local court or agency
relating to any claim within the scope of this Waiver. In the event there is
presently pending any action, suit, claim, charge or proceeding within the scope
of this Waiver, or if such a proceeding is commenced in the future, the
Executive shall promptly withdraw it, with prejudice, to the extent she has the
power to do so. The Executive represents and warrants that she has not assigned
any claim released herein, or authorized any other person to assert any claim on
her behalf.
(c) In the event any action, suit, claim, charge or proceeding within the
scope of this Waiver is brought by any government agency, putative class
representative or other third party to
15
vindicate any alleged rights of the Executive, (i) the Executive shall, except
to the extent required or compelled by law, legal process or subpoena, refrain
from participating, testifying or producing documents therein, and (ii) all
damages, inclusive of attorneys' fees, if any, required to be paid to the
Executive by the Company as a consequence of such action, suit, claim, charge or
proceeding shall be repaid to the Company by the Executive within ten (10) days
of her receipt thereof.
(d) In the event of a breach of this Waiver by the Executive, the
Company's obligations pursuant to the Agreement shall cease as of the date of
such breach. Furthermore, the Executive understands that her breach of the
provisions of this Waiver will cause monetary damages to the Company. Thus,
should the Executive breach the provisions of this Waiver, she shall be required
to pay the Company, as liquidated damages, the amount of the consideration paid
by the Company to the Executive pursuant to the Agreement plus all costs and
expenses, including all attorneys' fees and expenses, that the Company incurs in
enforcing this Waiver. The Executive agrees that the foregoing amount of
liquidated damages is reasonable and necessary, and does not constitute a
penalty.
Voluntary Execution of Waiver.
BY HER SIGNATURE BELOW, THE EXECUTIVE ACKNOWLEDGES THAT:
(A) I HAVE RECEIVED A COPY OF THIS WAIVER AND WAS OFFERED A PERIOD OF
TWENTY-ONE (21) DAYS TO REVIEW AND CONSIDER IT;
(B) IF I SIGN THIS WAIVER PRIOR TO THE EXPIRATION OF TWENTY-ONE (21) DAYS,
I KNOWINGLY AND VOLUNTARILY WAIVE AND GIVE UP THIS RIGHT OF REVIEW;
(C) I HAVE THE RIGHT TO REVOKE THIS WAIVER FOR A PERIOD OF SEVEN (7) DAYS
AFTER I SIGN IT BY MAILING OR DELIVERING A WRITTEN NOTICE OF REVOCATION TO THE
COMPANY'S CHIEF EXECUTIVE OFFICER NO LATER THAN THE CLOSE OF BUSINESS ON THE
SEVENTH DAY AFTER THE DAY ON WHICH I SIGNED THIS WAIVER;
(D) THIS WAIVER SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE SEVEN
DAY REVOCATION PERIOD HAS EXPIRED WITHOUT THE WAIVER HAVING BEEN REVOKED;
(E) THIS WAIVER WILL BE FINAL AND BINDING AFTER THE EXPIRATION OF THE
REVOCATION PERIOD REFERRED TO IN (C). I AGREE NOT TO CHALLENGE ITS
ENFORCEABILITY;
(F) I AM AWARE OF MY RIGHT TO CONSULT AN ATTORNEY, HAVE BEEN ADVISED IN
WRITING TO CONSULT WITH AN ATTORNEY, AND HAVE HAD THE OPPORTUNITY TO CONSULT
WITH AN ATTORNEY, IF DESIRED, PRIOR TO SIGNING THIS WAIVER;
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(G) NO PROMISE OR INDUCEMENT FOR THIS WAIVER HAS BEEN MADE EXCEPT AS SET
FORTH IN THIS WAIVER;
(H) I AM LEGALLY COMPETENT TO EXECUTE THIS WAIVER AND ACCEPT FULL
RESPONSIBILITY FOR IT; AND
(I) I HAVE CAREFULLY READ THIS WAIVER, ACKNOWLEDGE THAT I HAVE NOT RELIED
ON ANY REPRESENTATION OR STATEMENT, WRITTEN OR ORAL, NOT SET FORTH IN THIS
DOCUMENT OR THE AGREEMENT, AND WARRANT AND REPRESENT THAT I AM SIGNING THIS
WAIVER KNOWINGLY AND VOLUNTARILY.
Intending to be legally bound, I have signed this Waiver as of the date
first set forth above.
-------------------------------
Xxxxxxxx X. Xxxxx
17
