EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT (“Agreement”) is
entered into as of this 9th day of November, 2010,
by and between Chemtura Corporation, a Delaware corporation (the “Company”), and Xxxxx X. Xxxxxxxx, an
individual (the “Executive”).
WHEREAS,
the Executive is currently employed as the President and Chief Executive
Officer and
WHEREAS,
the Company and the Executive desire to enter into this Agreement to set out the
terms and conditions for the continued employment relationship of the Executive
with the Company.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereto agree as
follows:
1. Employment
Agreement. Effective on the date of the Company’s emergence
from Chapter 11 bankruptcy proceedings (the “Effective Date”), on
the terms and conditions set forth in this Agreement, the Company agrees to
continue to employ the Executive and the Executive agrees to continue to be
employed by the Company for the Employment Period set forth in Section 2 and in
the positions and with the duties set forth in Section 3. Terms
used herein with initial capitalization not otherwise defined are defined in
Section 26.
2. Term. The
initial term of employment under this Agreement shall commence on the Effective
Date and continue until December 31, 2014 (the “Initial
Term”). The term of employment shall be automatically extended
for an additional consecutive twelve (12)-month period (the “Extended Term”) on
January 1, 2015 and each subsequent January 1, unless and until the Company or
the Executive provides written notice to the other party in accordance with
Section 13
hereof not less than sixty (60) days before such anniversary date that such
party is electing not to extend the term of employment under this Agreement
(“Non-Renewal”), in
which case the term of employment hereunder shall end as of the end of such
Initial Term or Extended Term, as the case may be, unless sooner terminated as
hereinafter set forth. The period of time between the Effective Date
and the termination of the Executive’s employment hereunder shall be referred to
as the “Employment
Period.”
3. Position and
Duties. During the Employment Period, the Executive shall
serve as the President and
Chief Executive Officer of the Company. In such capacity, the
Executive shall have the duties, responsibilities and authorities customarily
associated with the position of President and Chief Executive
Officer in a company the size and nature of the Company. The
Executive shall devote the Executive’s reasonable best efforts and full business
time to the performance of the Executive’s duties hereunder and the advancement
of the business and affairs of the Company and shall be subject to, and shall
comply in all material respects with, the policies of the Company and the
Company Affiliates applicable to the Executive; provided that the
Executive shall be entitled (i) to serve as a member of the board of directors
of a reasonable number of other companies, (ii) to serve on civic, charitable,
educational, religious, public interest or public service boards, and (iii) to
manage the Executive’s personal and family investments, in each case, to the
extent such activities do not materially interfere with the performance of the
Executive’s duties and responsibilities hereunder.
4. Place of
Performance. During the Employment Period, the Executive shall
be based primarily in
Philadelphia, Pennsylvania.
5. Compensation and Benefits;
Equity Awards.
(a) Base
Salary. During the Employment Period, the Company shall pay to
the Executive a base salary (the “Base Salary”) at the
rate of no less than $1,000,000 per calendar year,
less applicable deductions. The Base Salary shall be reviewed for
increase by the Company’s board of directors (the “Board”) no less
frequently than annually and shall be increased in the discretion of the Board
and any such adjusted Base Salary shall constitute the “Base Salary” for
purposes of this Agreement. The Base Salary shall be paid in
substantially equal installments in accordance with the Company’s regular
payroll procedures.
(b) Annual
Bonus.
(i) Regular Annual
Bonus. For the 2010 fiscal year, the Executive shall be
eligible for a cash performance bonus (the “2010 Bonus”) under
the Company’s 2010 Management Incentive Plan, subject to achievement of the
specified performance targets, with such bonus payable in 2011 within fifteen
(15) days following the Company’s filing of its Form 10-K for the 2010 fiscal
year. Thereafter, during the Employment Period, the Executive shall
be paid an annual cash performance bonus (an “Annual Bonus”) in
respect of each fiscal year that ends during the Employment Term, to the extent
earned based on performance against objective performance criteria. The
performance criteria for any particular calendar year shall be determined in
good faith by the Board, no later than sixty (60) days after the commencement of
the relevant bonus period. Executive’s annual bonus opportunity for a calendar
year shall equal
100% of the
Executive’s Base Salary at the commencement of the year (and not on the
Executive’s annualized year-end Base Salary) (the “Target Bonus”) for
that year if target levels of performance for that year are achieved, with
greater or lesser amounts (including zero) paid for performance above and below
target (such greater and lesser amounts to be determined by a formula
established by the Board for that year when it established the targets and
performance criteria for that year). The Executive’s Annual Bonus for
a bonus period shall be determined by the Board after the end of the applicable
bonus period and shall be paid to the Executive when annual bonuses for that
year are paid to other senior executives of the Company generally, but in no
event later than March 15 of the year following the year to which such Annual
Bonus relates. In carrying out its functions under this Section 5(b)(i), the
Board shall at all times act reasonably and in good faith.
(ii) 2009 Emergence Incentive
Plan Award. Within ten (10) days following the Effective Date,
the Executive shall be granted a combination of non-qualified stock options and
either restricted stock or restricted stock units in settlement of the
Executive’s participation in the Company’s Emergence Incentive Plan (the “EIP”) for the 2009
fiscal year with an aggregate value equal to no less than $2,500,000. The
terms and conditions applicable to such equity awards shall be no less favorable
to the Executive than as set forth on Exhibit A attached
hereto.
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(iii) 2010 Emergence Incentive
Plan Award. For the 2010 fiscal year, the Executive shall be
eligible to receive a grant of a combination of non-qualified stock options and
either restricted stock or restricted stock units in settlement of the
Executive’s participation in the EIP for the 2010 fiscal year upon the
attainment of one or more of the pre-established performance goals under the EIP
for fiscal year 2010, with such grant, if any, to be made no later than March
15, 2011. The terms and conditions applicable to such equity awards
shall be no less favorable to the Executive than as set forth on Exhibit A attached
hereto.
(iv) 2011 Emergence
Awards. For the 2011 fiscal year, the Executive shall
participate in the Company’s 2010 Emergence Award Plan (the “Emergence Plan”),
which shall provide that in the event the Company achieves the performance
targets stated in the Emergence Plan for the 2011 fiscal year, the Executive
shall be entitled to receive fully vested shares of the Company’s common stock
in settlement of the Executive’s participation in the Emergence Plan, to be paid
no later than March 15, 2012.
(v) Equity
Awards. In addition to any award provided to the Executive
under the EIP or Emergence Plan, commencing in 2011 and each year thereafter
during the Employment Period, the Executive shall be entitled to receive
annually, a grant of an equity-based award under the Company’s 2010 Long-Term
Incentive Plan within thirty (30) days following the Company’s filing of its
Form 10-K for each such year with a grant date fair market value equal to no
less than the grant date fair market value of the EIP award provided to the
Executive for the 2010 fiscal year.
(c) Vacation;
Benefits. During the Employment Period, the Executive shall be
entitled to paid vacation in accordance with the applicable policies of the
Company, which shall be accrued and used in accordance with such policies.
During the Employment Period, the Executive shall be eligible to participate in
such medical, dental and life insurance, retirement and other plans as the
Company may have or establish from time to time on terms and conditions
applicable to other senior executives of the Company generally. The foregoing, however,
shall not be construed to require the Company to establish any such plans or to
prevent the modification or termination of such plans once
established.
6. Expenses. The
Company shall reimburse the Executive promptly for all expenses reasonably
incurred by the Executive in the performance of his duties in accordance with
policies which may be adopted from time to time by the Company following
presentation by the Executive of an itemized account, including reasonable
substantiation, of such expenses.
7. Confidentiality,
Non-Disclosure and Non-Competition Agreement. As a condition
to the Company’s entering into this Agreement, Executive shall execute an
Employee Confidentiality and Intellectual Property Agreement substantially in
the form attached hereto as Exhibit B (the “Confidentiality
Agreement”) and an Employee Non-Competition Agreement substantially in
the form attached hereto as Exhibit C (the “Non-Competition
Agreement”).
8. Termination of
Employment.
(a) Permitted
Terminations. The Executive’s employment hereunder may be
terminated during the Employment Period under the following
circumstances:
(i) Death. The
Executive’s employment hereunder shall terminate upon the Executive’s
death;
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(ii) By the
Company. The Company may terminate the Executive’s
employment:
(A) Disability. For
Disability; or
(B) Cause. For
Cause or without Cause.
(iii) By the
Executive. The Executive may terminate his employment for any
reason or for no reason.
(b) Non-Renewal. The
Executive may terminate his employment within thirty (30) days after the end of
the Employment Period if the Employment Period ends as a result of the Company
giving a notice of Non-Renewal in accordance with Section
2.
(c) Termination. Any
termination of the Executive’s employment by the Company or the Executive (other
than because of the Executive’s death) shall be communicated by written Notice
of Termination to the other party hereto in accordance with Section 13
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, if any, and shall set 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. Termination of the Executive’s employment shall take
effect on the Date of Termination.
(d) Effect of
Termination. Upon any termination of the Executive’s
employment with the Company, and its subsidiaries, the Executive shall resign
from, and shall be considered to have simultaneously resigned from, all
positions with the Company and all of its subsidiaries.
9. Compensation Upon
Termination.
(a) Death. If
the Executive’s employment is terminated during the Employment Period as a
result of the Executive’s death, this Agreement and the Employment Period shall
terminate without further notice or any action required by the Company or the
Executive’s legal representatives. Upon the Executive’s death, the
Company shall pay or provide to the Executive’s representative or estate all
Accrued Benefits, if any, to which the Executive is entitled. Except
as set forth herein, the Company shall have no further obligation to the
Executive (or the Executive’s legal representatives or estate) under this
Agreement.
(b) Disability. If
the Company terminates the Executive’s employment during the Employment Period
because of the Executive’s Disability pursuant to Section 8(a)(ii)(A),
the Company shall pay to the Executive all Accrued Benefits, if any, to which
the Executive is entitled. Except as set forth herein, the Company
shall have no further obligations to the Executive (or the Executive’s legal
representatives) under this Agreement.
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(c) Termination by the Company
for Cause or by the Executive without Good Reason. If, during
the Employment Period, the Company terminates the Executive’s employment for
Cause pursuant to Section 8(a)(ii)(B)
or the Executive terminates his employment without Good Reason, the Company
shall pay to the Executive all Accrued Benefits, if any, to which the Executive
is entitled. Except as set forth herein, the Company shall have no
further obligations to the Executive under this Agreement.
(d) Termination due to
Non-Renewal. If this Agreement is terminated pursuant to a
notice of Non-Renewal in accordance with Section 2, upon the
expiration of this Agreement the Executive shall become a participant in the
Executive and Key Employee Severance Plan or its successor plan or
plans.
(e) Termination by the Company
without Cause or by the Executive with Good Reason. Subject to
Section 9(f) and
Section 9(g),
if the Company terminates the Executive’s employment during the Employment
Period other than for Cause or Disability or if the Executive terminates his
employment hereunder with Good Reason, (i) the Company shall pay or provide
the Executive (or the Executive’s estate, if the Executive dies after such
termination and execution of the release but before receiving such amount)
(A) all Accrued Benefits, if any, to which the Executive is entitled; (B) a
lump sum payment of an amount equal to a pro rata portion (based upon the number
of days the Executive was employed during the calendar year in which the Date of
Termination occurs) of the Annual Bonus or the 2010 Bonus, as applicable, that
would have been paid to the Executive if he had remained employed with the
Company based on actual performance, such payment to be made at the time bonus
payments are made to other executives of the Company but in any event by no
later than March 15 of the calendar year following the year that includes the
Executive’s Date of Termination; (C) an amount equal to the product of (x)
2.0 and (y) the sum of
the Executive’s (I) Base Salary, (II) Target Bonus, and (III) annual
perquisite allowance, payable in accordance with the Company’s payroll policies
in effect on the Date of Termination for the twelve month period commencing
upon the Executive’s Date of Termination; (D) outplacement services at a level
commensurate with the Executive’s position in accordance with the Company’s
practices as in effect from time to time; (ii) notwithstanding anything set
forth in any plan document or award agreement to the contrary, all vested
outstanding equity awards shall remain outstanding and exercisable, if
applicable, through their stated expiration dates, and (iii) the Executive
and his covered dependents shall be entitled to continued participation on the
same terms and conditions as applicable immediately prior to the Executive’s
Date of Termination for the two
year period following the Date of Termination in such medical, dental,
and hospitalization insurance coverage in which the Executive and his eligible
dependents were participating immediately prior to the Date of
Termination.
(f) Change in
Control. This Section 9(f)
shall apply if there is (i) a termination of the Executive’s employment by
the Employer other than for Cause or Disability pursuant to Section 8(a) or
by the Executive for Good Reason in, each case, during the two-year period after
a Change in Control; or (ii) a termination of the Executive’s employment by
the Company prior to a Change in Control, if the termination was at the request
of a third party or otherwise arose in anticipation of a Change in
Control. If any such termination occurs, the Executive (or the
Executive’s estate, if the Executive dies after such termination and execution
of the release but before receiving such amount) shall receive the benefits set
forth in Section 9(e),
except that (1) in lieu of the continued payment of Base Salary under Section 9(e)(i)(C),
the Executive shall receive an amount equal to the product of (x) 3.0 and (y) the sum of
the Executive’s (I) Base Salary, (II) Target Bonus, and (III) annual
perquisite allowance, payable in a lump sum promptly after the date of which the
release referred to in Section 9(g) becomes
irrevocable and (2) in addition to the extension of the expiration terms of
outstanding equity awards under Section 9(e)(ii),
the Executive shall be entitled to accelerated vesting of all outstanding equity
awards.
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(g) Liquidated
Damages. The parties acknowledge and agree that the damages
that will result to the Executive for termination by the Company of the
Executive’s employment without Cause or by the Executive for Good Reason shall
be extremely difficult or impossible to establish or prove, and agree that the
amounts payable to the Executive under Section 9(e) or Section 9(f) (the
“Severance
Payments”) shall constitute liquidated damages for any such
termination. The Executive agrees that, except for such other
payments and benefits to which the Executive may be entitled as expressly
provided by the terms of this Agreement or any other applicable benefit plan or
compensation arrangement (including equity-related awards), such liquidated
damages shall be in lieu of all other claims that the Executive may make by
reason of any such termination of his employment. Any and all amounts
payable and benefits or additional rights provided pursuant to this Agreement
beyond the Accrued Benefits shall only be payable if the Executive delivers to
the Company and does not revoke a general release of claims in favor of the
Company in substantially the form attached on Exhibit D
hereto. Such release must be executed and delivered (and no longer
subject to revocation, if applicable) within sixty (60) days following the
Executive’s Date of Termination. The Company shall deliver to the Executive the
appropriate form of release of claims for the Executive to execute within five
(5) business days of the Date of Termination.
(h) Certain Payment
Delays. Notwithstanding anything to the contrary set forth
herein, to the extent that the payment of any amount described in Section 9(e) or Section 9(f)
constitutes “nonqualified deferred compensation” for purposes of Code Section
409A (as defined in Section 25 hereof),
any such payment scheduled to occur during the first sixty (60) days following
the termination of employment shall not be paid until the first regularly
scheduled pay period following the sixtieth (60th) day following such
termination and shall include payment of any amount that was otherwise scheduled
to be paid prior thereto.
(i) No
Offset. In the event of termination of his employment, the
Executive shall be under no obligation to seek other employment and there shall
be no offset against amounts due to him on account of any remuneration or
benefits provided by any subsequent employment he may obtain. The
Company’s obligation to make any payment pursuant to, and otherwise to perform
its obligations under, this Agreement shall not be affected by any offset,
counterclaim or other right that the Company or the Company Affiliates may have
against the Executive for any reason.
10. Certain Additional Payments
by the Company.
(a) If it
shall be determined that any benefit provided to the Executive or payment or
distribution by or for the account of the Company to or for the benefit of the
Executive, whether provided, paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise (a “Payment”) would be
subject to the excise tax imposed by Section 4999 of the Code, or any
interest or penalties are incurred by the Executive with respect to such excise
tax resulting from any action or inaction by the Company (such excise tax,
together with any such interest and penalties, collectively, the “Excise Tax”), then
the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in
an amount such that after payment by the Executive of the Excise Tax and all
other income, employment, excise and other taxes that are imposed on the
Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal
to the sum of (A) the Excise Tax imposed upon the Payments and (B) the
product of any deductions disallowed because of the inclusion of the Gross-up
Payment in the Executive’s adjusted gross income and the applicable marginal
rate of federal income taxation for the calendar year in which the Executive’s
Gross-Up Payment is to be made. Notwithstanding the foregoing
provisions of this Section 10(a), if it
shall be determined that the Executive would be entitled to the Gross-Up
Payment, but that the Parachute Value of all Payments does not exceed an amount
equal to three hundred and ten percent (310%) of the Executive’s Base Amount,
then no Gross-Up Payment shall be made to the Executive and the amounts payable
under this Agreement shall be reduced so that the Parachute Value of all
Payments, in the aggregate, equals the Safe Harbor Amount; provided that such
reduction shall only be made if such reduction results in a more favorable
after-tax position for the Executive. The payment reduction
contemplated by the preceding sentence, if any, shall be implemented by
determining the Parachute Payment Ratio for each “parachute payment” and then
reducing the parachute payments in order beginning with the parachute payment
with the highest Parachute Payment Ratio. For parachute payments with
the same Parachute Payment Ratio, such parachute payments shall be reduced based
on the time of payment of such parachute payments, with amounts having later
payment dates being reduced first. For parachute payments with the
same Parachute Payment Ratio and the same time of payment, such parachute
payments shall be reduced on a pro rata basis (but not below zero) prior to
reducing parachute payments with a lower Parachute Payment Ratio.
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(b) Subject
to the provisions of Section 10(c),
all determinations required to be made under this Section 10,
including whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such
determination, shall be made by the Company’s independent, certified public
accounting firm or such other certified public accounting firm as may be
designated by the Company prior to the Change in Control (the “Accounting Firm”)
which shall provide detailed supporting calculations both to the Company and the
Executive within fifteen (15) business days of the receipt of notice from
the Executive that there has been a Payment, or such earlier time as is
requested by the Company. If the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting a change in
the ownership or effective control (as defined for purposes of Section 280G
of the Code) of the Company, the Executive shall appoint another nationally
recognized accounting firm which is reasonably acceptable to the Company to make
the determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). All fees and expenses
of the Accounting Firm shall be borne solely by the Company. Any
Gross-Up Payment, as determined pursuant to this Section 10,
shall be paid by the Company to the Executive within five (5) days of the
receipt of the Accounting Firm’s determination but in any event by the end of
the year following the year in which the applicable tax is
remitted. Any determination by the Accounting Firm shall be binding
upon the Company and the Executive. As a result of the uncertainty in
the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that additional
Gross-Up Payments shall be required to be made to compensate the Executive for
amounts of Excise Tax later determined to be due, consistent with the
calculations required to be made hereunder (an “Underpayment”). If
the Company exhausts its remedies pursuant to Section 10(c)
and the Executive is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred
and any such Underpayment shall be promptly paid by the Company to or for the
benefit of the Executive.
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(c) The
Executive shall notify the Company in writing of any claim by the Internal
Revenue Service that, if successful, would require the payment by the Company of
the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten (10) business days after the
Executive is informed in writing of such claim and shall apprise the Company of
the nature of such claim and the date on which such claim is requested to be
paid. The Executive shall not pay such claim prior to the expiration
of the thirty (30)-day period following the date on which it gives such notice
to the Company (or such shorter period ending on the date that any payment of
taxes with respect to such claim is due). If the Company notifies the
Executive in writing prior to the expiration of such period that they desire to
contest such claim, the Executive shall:
(i) give the
Company any information reasonably requested by the Company relating to such
claim;
(ii) take such
action in connection with contesting such claim as the Company shall reasonably
request in writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney reasonably
selected by the Company;
(iii) cooperate
with the Company in good faith to effectively contest such claim;
and
(iv) permit
the Company to participate in any proceedings relating to such claim; provided, however, that the
Company shall bear and pay directly all costs and expenses (including additional
interest and penalties incurred in connection with such contest) and shall
indemnify and hold the Executive harmless, on an after-tax basis, for any Excise
Tax or income tax (including interest and penalties with respect thereto)
imposed as a result of such representation and payment of costs and
expenses.
(d) The
following terms shall have the following meanings for purposes of this Section
10.
(i) “Base Amount” means
“base amount,” within the meaning of Section 280G(b)(3) of the
Code.
(ii) “Parachute Payment
Ratio” shall mean a fraction the numerator of which is the value of the
applicable parachute payment for purposes of Section 280G of the Code and the
denominator of which is the intrinsic value of such parachute
payment.
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(iii) “Parachute Value” of a
Payment shall mean the portion of such Payment that constitutes a “parachute
payment” under Section 280G(b)(2), as determined by the Accounting Firm for
purposes of determining whether and to what extent the Excise Tax will apply to
such Payment.
(iv) “Safe Harbor Amount”
means 2.99 times the Executive’s Base Amount.
11. Indemnification. During
the Employment Period and thereafter, the Company agrees to indemnify and hold
the Executive and the Executive’s heirs and representatives harmless, to the
maximum extent permitted by law, against any and all damages, costs,
liabilities, losses and expenses (including reasonable attorneys’ fees) as a
result of any claim or proceeding (whether civil, criminal, administrative or
investigative), or any threatened claim or proceeding (whether civil, criminal,
administrative or investigative), against the Executive that arises out of or
relates to the Executive’s service as an officer, director or employee, as the
case may be, of the Company, or the Executive’s service in any such capacity or
similar capacity with a Company Affiliate or other entity at the request of the
Company, both prior to and after the Effective Date, and to promptly advance to
the Executive or the Executive’s heirs or representatives such expenses upon
written request with appropriate documentation of such expense upon receipt of
an undertaking by the Executive or on the Executive’s behalf to repay such
amount if it shall ultimately be determined that the Executive is not entitled
to be indemnified by the Company. During the Employment Period and
thereafter, the Company also shall provide the Executive with coverage under its
current directors’ and officers’ liability policy to the same extent that it
provides such coverage to its other executive officers. If the
Executive has any knowledge of any actual or threatened action, suit or
proceeding, whether civil, criminal, administrative or investigative, as to
which the Executive may request indemnity under this provision, the Executive
will give the Company prompt written notice thereof; provided that the
failure to give such notice shall not affect the Executive’s right to
indemnification. The Company shall be entitled to assume the defense
of any such proceeding and the Executive will use reasonable efforts to
cooperate with such defense. To the extent that the Executive in good
faith determines that there is an actual or potential conflict of interest
between the Company and the Executive in connection with the defense of a
proceeding, the Executive shall so notify the Company and shall be entitled to
separate representation at the Company’s expense by counsel selected by the
Executive (provided that the
Company may reasonably object to the selection of counsel within
ten (10) business days after notification thereof) which counsel shall
cooperate, and coordinate the defense, with the Company’s counsel and minimize
the expense of such separate representation to the extent consistent with the
Executive’s separate defense. This Section 11 shall
continue in effect after the termination of the Executive’s employment or the
termination of this Agreement.
12. Attorney’s
Fees.
(a) Negotiation. Upon
presentation of an invoice therefor, the Company shall pay or reimburse the
Executive’s reasonable counsel fees incurred in connection with the negotiation
and documentation of this Agreement and the other documents ancillary
thereto.
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(b) Disputes. The
Company shall advance the Executive (and his beneficiaries) any and all costs
and expenses (including without limitation attorneys’ fees and other charges of
counsel) incurred by the Executive (or any of his beneficiaries) in resolving
any controversy, dispute or claim arising out of or relating to this Agreement,
any other agreement or arrangement between the Executive and the Company, the
Executive’s employment with the Company, or the termination thereof; provided that the
Executive shall reimburse the Company any advances on a net after-tax basis to
cover expenses incurred by the Executive for claims brought by the Executive
that are judicially determined to be frivolous or advanced in bad
faith.
13. Notices. All
notices, demands, requests, or other communications which may be or are required
to be given or made by any party to any other party pursuant to this Agreement
shall be in writing and shall be hand delivered, mailed by first-class
registered or certified mail, return receipt requested, postage prepaid,
delivered by overnight air courier, or transmitted by facsimile transmission
addressed as follows:
(i) If to the
Company:
Chemtura
Corporation
000
Xxxxxx Xxxx
Xxxxxxxxxx,
XX 00000
Attention: General
Counsel
(ii) If to the
Executive:
Xxxxx X.
Xxxxxxxx
000
Xxxxxxxx Xxxx
P. O. Xxx
000
Xxxxxxx
Xxxxxx, XX 00000
Each
party may designate by notice in writing a new address to which any notice,
demand, request or communication may thereafter be so given, served or
sent. Each notice, demand, request, or communication that shall be
given or made in the manner described above shall be deemed sufficiently given
or made for all purposes at such time as it is delivered to the addressee (with
the return receipt, the delivery receipt, confirmation of facsimile transmission
or the affidavit of messenger being deemed conclusive but not exclusive evidence
of such delivery) or at such time as delivery is refused by the addressee upon
presentation.
14. Severability. The
invalidity or unenforceability of any one or more provisions of this Agreement,
including, without limitation, Section 7, shall not
affect the validity or enforceability of the other provisions of this Agreement,
which shall remain in full force and effect.
15. Survival. It
is the express intention and agreement of the parties hereto that the provisions
of Sections
7, 9, 10, 11, 12, 13, 14, 16, 17, 18, 20, 21, 22, 24 and 25 hereof and this
Section 15
shall survive the termination of employment of the Executive. In
addition, all obligations of the Company to make payments hereunder shall
survive any termination of this Agreement on the terms and conditions set forth
herein.
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16. Assignment. The
rights and obligations of the parties to this Agreement shall not be assignable
or delegable, except that (i) in the event of the Executive’s death, the
personal representative or legatees or distributees of the Executive’s estate,
as the case may be, shall have the right to receive any amount owing and unpaid
to the Executive hereunder and (ii) the rights and obligations of the
Company hereunder shall be assignable and delegable in connection with any
subsequent merger, consolidation, sale of all or substantially all of the assets
or equity interests of the Company or similar transaction involving the Company
or a successor corporation. The Company shall require any successor
to the Company to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to perform
it if no such succession had taken place.
17. Binding
Effect. Subject to any provisions hereof restricting
assignment, this Agreement shall be binding upon the parties hereto and shall
inure to the benefit of the parties and their respective heirs, devisees,
executors, administrators, legal representatives, successors and
assigns.
18. Amendment;
Waiver. This Agreement shall not be amended, altered or
modified except by an instrument in writing duly executed by the party against
whom enforcement is sought. Neither the waiver by either of the
parties hereto of a breach of or a default under any of the provisions of this
Agreement, nor the failure of either of the parties, on one or more occasions,
to enforce any of the provisions of this Agreement or to exercise any right or
privilege hereunder, shall thereafter be construed as a waiver of any subsequent
breach or default of a similar nature, or as a waiver of any such provisions,
rights or privileges hereunder.
19. Headings. Section
and subsection headings contained in this Agreement are inserted for convenience
of reference only, shall not be deemed to be a part of this Agreement for any
purpose, and shall not in any way define or affect the meaning, construction or
scope of any of the provisions hereof.
20. Governing
Law. This Agreement, the rights and obligations of the parties
hereto, and any claims or disputes relating thereto, shall be governed by and
construed in accordance with the laws of the State of Delaware (but not
including any choice of law rule thereof that would cause the laws of another
jurisdiction to apply).
21. Waiver of Jury
Trial. Each of the parties hereto irrevocably and
unconditionally waives all right to trial by jury in any proceeding relating to
this Agreement or the Executive’s employment by the Company or any Company
Affiliate, or for the recognition and enforcement of any judgment in respect
thereof (whether based on contract, tort or otherwise) arising out of or
relating to this Agreement or the Executive’s employment by the Company or any
Company Affiliate, or the Executive’s or the Company’s performance under, or the
enforcement of, this Agreement.
22. Entire
Agreement. This Agreement constitutes the entire agreement
between the parties respecting the employment of the Executive, there being no
representations, warranties or commitments except as set forth herein and
supersedes and replaces all other agreements related to the subject matter
hereof .
11
23. Counterparts. This
Agreement may be executed in two counterparts, each of which shall be an
original and all of which shall be deemed to constitute one and the same
instrument.
24. Withholding. The
Company may withhold from any benefit payment under this Agreement all federal,
state, city or other taxes as shall be required pursuant to any law or
governmental regulation or ruling.
25. Section
409A.
(a) The
intent of the parties is that payments and benefits under this Agreement comply
with Internal Revenue Code Section 409A and the regulations and guidance
promulgated thereunder (collectively “Code Section 409A”)
and, accordingly, to the maximum extent permitted, this Agreement shall be
interpreted to be in compliance therewith. If the Executive notifies
the Company (with specificity as to the reason therefor) that the Executive
believes that any provision of this Agreement (or of any award of compensation,
including equity compensation or benefits) would cause the Executive to incur
any additional tax or interest under Code Section 409A and the Company concurs
with such belief or the Company (without any obligation whatsoever to do so)
independently makes such determination, the Company shall, after consulting with
the Executive, reform such provision to attempt to comply with Code Section 409A
through good faith modifications to the minimum extent reasonably appropriate to
conform with Code Section 409A. To the extent that any provision
hereof is modified in order to comply with Code Section 409A, such modification
shall be made in good faith and shall, to the maximum extent reasonably
possible, maintain the original intent and economic benefit to the Executive and
the Company of the applicable provision without violating the provisions of Code
Section 409A.
(b) A
termination of employment shall not be deemed to have occurred for purposes of
any provision of this Agreement providing for the payment of any amounts or
benefits upon or following a termination of employment unless such termination
is also a “separation from service” within the meaning of Code Section 409A and,
for purposes of any such provision of this Agreement, references to a
“termination,” “termination of employment” or like terms shall mean “separation
from service.” If the Executive is deemed on the date of termination
to be a “specified employee” within the meaning of that term under Code Section
409A(a)(2)(B), then with regard to any payment or the provision of any benefit
that is considered deferred compensation under Code Section 409A payable on
account of a “separation from service,” such payment or benefit shall be made or
provided at the date which is the earlier of (A) the expiration of the six
(6)-month period measured from the date of such “separation from service” of the
Executive, and (B) the date of the Executive’s death, to the extent required
under Code Section 409A. Upon the expiration of the foregoing delay
period, all payments and benefits delayed pursuant to this Section 25(b)
(whether they would have otherwise been payable in a single sum or in
installments in the absence of such delay) shall be paid or reimbursed to the
Executive in a lump sum, and any remaining payments and benefits due under this
Agreement shall be paid or provided in accordance with the normal payment dates
specified for them herein.
(c) To the
extent that reimbursements or other in-kind benefits under this Agreement
constitute “nonqualified deferred compensation” for purposes of Code Section
409A, (A) all expenses or other reimbursements hereunder shall be made on or
prior to the last day of the taxable year following the taxable year in which
such expenses were incurred by the Executive, (B) any right to reimbursement or
in-kind benefits shall not be subject to liquidation or exchange for another
benefit, and (C) no such reimbursement, expenses eligible for reimbursement, or
in-kind benefits provided in any taxable year shall in any way affect the
expenses eligible for reimbursement, or in-kind benefits to be provided, in any
other taxable year.
12
(d) For
purposes of Code Section 409A, the Executive’s right to receive any installment
payments pursuant to this Agreement shall be treated as a right to receive a
series of separate and distinct payments. Whenever a payment under
this Agreement specifies a payment period with reference to a number of days,
the actual date of payment within the specified period shall be within the sole
discretion of the Company.
(e) Notwithstanding
any other provision of this Agreement to the contrary, in no event shall any
payment under this Agreement that constitutes “nonqualified deferred
compensation” for purposes of Code Section 409A be subject to offset by any
other amount unless otherwise permitted by Code Section 409A.
26. Definitions.
(a) “Accrued Benefits”
means (i) any unpaid Base Salary through the Date of Termination; (ii) any
earned but unpaid Annual Bonus; (iii) any accrued and unpaid vacation
and/or sick days; (iv) any amounts or benefits owing to the Executive or to
the Executive’s beneficiaries under the then applicable benefit plans of the
Company (excluding any severance plan, program, agreement or arrangement); and
(v) any amounts owing to the Executive for reimbursement of expenses
properly incurred by the Executive prior to the Date of Termination and which
are reimbursable in accordance with Section 6. Amounts
payable under (A) clauses (i), (ii) and (iii) shall be paid promptly after the
Date of Termination, (B) clause (iv) shall be paid in accordance with the terms
and conditions of the applicable plan, program or arrangement and (C) clause (v)
shall be paid in accordance with the terms of the applicable expense
reimbursement policy.
(b) “Cause” means
(i) the Executive’s conviction of, or plea of nolo contendere to, a felony
(other than in connection with a traffic violation); (ii) the Executive’s
continued failure to substantially perform the Executive’s material duties
hereunder after receipt of written notice from the Company that specifically
identifies the manner in which the Executive has substantially failed to perform
the Executive’s
material duties and specifies the manner in which the Executive may
substantially perform his material duties in the future; (iii) an act of
fraud or gross or willful material misconduct; or (iv) a willful and
material breach of the Confidentiality Agreement or the Non-Competition
Agreement. 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. Anything herein to the contrary notwithstanding, the
Executive shall not be terminated for “Cause” hereunder unless (A) written
notice stating the basis for the termination is provided to the Executive and
(B) as to clauses (ii), (iii) or (iv) of this paragraph, he is given
fifteen (15) days to cure the neglect or conduct that is the basis of
such claim, to the extent curable.
13
(c) “Change in Control”
means the occurrence of any one or more of the following events, to the extent
such event also constitutes a “change in control event” within the meaning of
Section 409A of the Code:
(i) any
“person” as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) (other
than the Company, any trustee or other fiduciary holding securities under any
employee benefit plan of the Company, or any company owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of common stock of the Company or any person who
owns five percent (5%) or more of the common stock of the Company on the date of
the Company’s emergence from Chapter 11 bankruptcy proceedings (a “Five Percent
Owner”)), becoming the beneficial owner (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing more than fifty percent (50%) of the combined voting power of the
Company’s then outstanding securities;
(ii) any
“person” as such term is used in Sections 13(d) and 14(d) of the Exchange Act
(other than the Company, any trustee or other fiduciary holding securities under
any employee benefit plan of the Company, any company owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of common stock of the Company or a Five Percent
Owner), becoming the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) in one or a series of related transactions during any twelve
(12)-month period, directly or indirectly, of securities of the Company
representing thirty percent (30%) or more of the combined voting power of
the Company’s then outstanding securities;
(iii) during
any one-year period, individuals who at the beginning of such period constitute
the Board, and any new director (other than a director designated by a person
who has entered into an agreement with the Company to effect a transaction
described in paragraph (i), (ii), (iv) or (v) of this definition of “Change in
Control” or a director whose initial assumption of office occurs as a result of
either an actual or threatened election contest (as such term is used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a person other
than the Board) whose election by the Board or nomination for election by the
Company’s stockholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the beginning of
the one-year period or whose election or nomination for election was previously
so approved, cease for any reason to constitute at least a majority of the
Board;
(iv) a merger
or consolidation of the Company or a direct or indirect subsidiary of the
Company with any other company, other than a merger or consolidation which would
result in either (A) a Five Percent Owner beneficially owning more than fifty
percent (50%) of the combined voting power of the voting securities of the
Company or the surviving entity (or the ultimate parent company of the Company
of the surviving entity) or (B) the voting securities of
the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity) more than fifty percent (50%) of the combined voting power
of the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation (or the ultimate parent company
of the Company or such surviving entity); provided, however, that a
merger or consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no person (other than those covered by the
exceptions in subparagraphs (ii) and (iii)) acquires more than fifty percent
(50%) of the combined voting power of the Company’s then outstanding securities
shall not constitute a Change in Control; or
14
(v) the
consummation of a sale or disposition of all or substantially all the assets of
the Company, in one or a series of related transactions during any twelve
(12)-month period, other than the sale or disposition of all or substantially
all of the assets of the Company to a Five Percent Owner or a person or persons
who beneficially own, directly or indirectly, more than fifty percent (50%)
of the combined voting power of the outstanding voting securities of the Company
at the time of the sale.
(d) “Company Affiliate”
means any entity controlled by, in control of, or under common control with, the
Company.
(e) “Date of Termination”
means (i) if the Executive’s employment is terminated by the Executive’s
death, the date of the Executive’s death; (ii) if the Executive’s
employment is terminated because of the Executive’s Disability pursuant to Section 8(a)(ii)(A),
thirty (30) days after Notice of Termination, provided that the
Executive shall not have returned to the performance of the Executive’s duties
on a full-time basis during such thirty (30)-day period; (iii) if the
Executive’s employment is terminated during the Employment Period by the Company
pursuant to Section 8(a)(ii)(B)
or by the Executive pursuant to Section 8(a)(iii),
the date specified in the Notice of Termination; provided that if the
Executive is voluntarily terminating the Executive’s employment without Good
Reason, such date shall not be less than fifteen (15) business days
after the Notice of Termination; (iv) if the Executive’s employment is
terminated during the Employment Period other than pursuant to Section 8(a),
the date on which Notice of Termination is given; or (v) if the Executive’s
employment is terminated pursuant to Section 8(b), the
last day of the Employment Period.
(f) “Disability” means the
inability of the Executive to perform the Executive’s material duties hereunder
due to a physical or mental injury, infirmity or incapacity, which is expected
to exceed one hundred eighty (180) days (including weekends and holidays) in any
three hundred sixty-five (365)-day period, as determined by the Executive’s
treating physician in his or her reasonable discretion.
(g) “Good Reason” means
(i) any material diminution or adverse change in the Executive’s titles, duties
or authorities; (ii) a reduction in the Executive’s total compensation,
including a reduction in the Executive’s Base Salary, Target Bonus or annual
minimum equity award value; (iii) a material adverse change in the Executive’s
reporting responsibilities; (iv) the assignment of duties substantially
inconsistent with the Executive’s position or status with the Company;
(v) a relocation of the Executive’s primary place of employment to a
location more than twenty five (25) miles further from the Executive’s primary
residence than the current location of the Company’s offices; (vi) any
other material breach of the Agreement or any other agreement by the Company or
the Company Affiliates; (vii) the failure of the Company to obtain the
assumption in writing of its obligations under the Agreement by any successor to
all or substantially all of the assets of the Company after a merger,
consolidation, sale or similar transaction in which such Agreement is not
assumed by operation of law; or (viii) any material diminution in the aggregate
value of employee benefits provided to the Executive on the Effective Date under
any “employee benefit plan” (as defined in Section 3(3) of ERISA), other than
pursuant to across-the-board reductions to employee benefits applicable to all
senior executives. In order to invoke a termination for Good Reason, (A) the
Executive must provide written notice within ninety (90) days of the
occurrence of any event of “Good Reason,” (B) the Company must fail to cure such
event within fifteen (15) days of the giving of such notice and (C)
the Executive must terminate employment within thirty (30) days
following the expiration of the Company’s cure period.
[Remainder
of Page Intentionally Left Blank]
15
IN
WITNESS WHEREOF, the undersigned have duly executed and delivered this
Agreement, or have caused this Agreement to be duly executed and delivered on
their behalf.
|
CHEMTURA
CORPORATION
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|||
|
By:
|
/s/
Xxxxxxx Xxxxxxxx
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||
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Name: Xxxxxxx
Xxxxxxxx
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|||
|
Title: Lead
Director
|
|||
|
EXECUTIVE
|
|||
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/s/
Xxxxx X. Xxxxxxxx
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|||
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Xxxxx
X. Xxxxxxxx
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16
EXHIBIT
A
EIP EQUITY TERM
SHEET
I. Awards. The
Executive’s participation in the EIP for the 2009 and 2010 fiscal years,
respectively, shall be settled in accordance with the terms of the Company’s EIP
Settlement Plan.
II. General
Vesting. Subject to the accelerated vesting provisions
described below, (a) the EIP equity awards granted for the 2009 fiscal year will
vest in equal one-third (1/3) installments on each of (i) the date of grant,
(ii) March 31, 2011 and (iii) March 31, 2012, respectively, and (b) the EIP
equity awards granted for the 2010 fiscal year will vest in equal one-third
(1/3) installments on each of (i) the date of grant, (ii) March 31, 2012 and
(iii) March 31, 2013, respectively.
III. Accelerated Vesting of EIP
Grants. Vesting of the equity grants made with respect to the
EIP for the 2009 and 2010 fiscal years, respectively, will accelerate in full
upon a termination of the Executive’s employment by the Company without Cause or
by the Executive for Good Reason, in each case, within the two year period
following a Change in Control.
IV. Post-Termination Exercise
Periods.
(a) Termination for Death,
Disability, by the Company without Cause or by the Executive with or without
Good Reason. If the Executive’s employment is terminated due
to death, Disability, by the Company without Cause or by the Executive with or
without Good Reason, stock options will be exercisable for the 180 day period
following the date of termination.
(b) Termination for
Cause. If the Executive is terminated for Cause all stock
options will terminate and expire.
17
EXHIBIT
B
See
attached EMPLOYEE CONFIDENTIALITY AND INTELLECTUAL PROPERTY
AGREEMENT
18
EMPLOYEE CONFIDENTIALITY AND
INTELLECTUAL PROPERTY AGREEMENT
This
EMPLOYEE CONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT (the “Agreement”)
is made between Chemtura Corporation and/or one of its subsidiaries or
affiliates (collectively, “Chemtura”), and the undersigned Employee, effective
November 10, 2010 (“Effective Date”). In consideration of Employee’s employment
with Chemtura and for other good and valuable consideration the sufficiency of
which Employee hereby acknowledges, Employee agrees as follows:
A. Confidential
Information.
1. Employee
understands that during employment with Chemtura, Employee will have access to,
exposure to, or work with, certain proprietary and confidential
information. For purposes of this Agreement, “Confidential
Information” means any and all business and technical information, know-how, or
trade secrets, including all technical and non-technical data whether in
tangible or intangible form, pertaining in any manner to the businesses of
Chemtura, including Chemtura’s business associates, clients, consultants,
customers, and employees, which is considered to be private, confidential,
proprietary, or a trade secret, either to Chemtura, or other non-affiliated
third parties. Confidential Information includes, but is not limited to,
information relating to financial, marketing, and business plans including
projections and estimates; sales and marketing figures, plans and methods;
promotional, business and technology strategies; contracts including licenses,
joint development agreements, supply contracts, and settlement agreements;
customer, distributor, and supplier information, lists, usages or requirements;
all information relating to existing or contemplated businesses, products, or
processes including proprietary product samples, product testing and
registration data, and production and quality control data; all research and
development data and results, negative or positive, including inventions whether
patentable or not, discoveries, writings, technical and business innovations,
improvements, and developments; all apparatus, designs, devices, equipment,
formulae including product formulae, tools, machines, software including process
control software, and written works; and corporate records, procedures and
processes including accounting procedures, personnel documents and history,
business records including tax records, and any similar corporate
record.
2. Notwithstanding
the foregoing, information, data, know-how or knowledge shall not be considered
Confidential Information if: (a) the information at the time of disclosure is in
the public domain through no fault of Employee or any breach of this Agreement
by Employee; (b) the information received from a third party outside of Chemtura
is disclosed without a breach of any confidentiality obligation; (c) the
information is approved for release by written authorization of Chemtura; or (d)
the information may be required by law or an order of any court, agency or
proceeding to be disclosed; provided, however, that
Employee hereby agrees that if Employee is requested or required by applicable
law to disclose any Confidential Information, Employee will provide Chemtura
with prompt written notice of such request or requirement so that Chemtura may
seek a protective order or other appropriate relief; and, provided further, however,
that the Employee will use best efforts to preserve the confidentiality of such
Confidential Information to be disclosed, including, without limitation, by (i)
cooperating with Chemtura to obtain a protective order or other appropriate
relief, and (ii) disclosing only that portion of such Confidential Information
necessary to comply with such applicable law.
19
3. Employee
agrees that at any time during employment with Chemtura, Employee will not take,
use or permit to be used, any Confidential Information including information
obtained from a non-affiliated third party other than for the benefit of
Chemtura. Further, Employee agrees that after termination of employment from
Chemtura, Employee, in perpetuity, will not take, use for their own benefit or
permit to be used, any Confidential Information including information obtained
from a non-affiliated third party, without the expressed written authorization
from an officer of Chemtura. Additionally, Employee represents that Employee has
not and will not disclose to Chemtura, and has not and shall not use on
Chemtura’s behalf any trade secrets or other confidential information belonging
to a third party including a previous employer without written consent from that
third party or previous employer and Chemtura.
4. Employee
represents and warrants that Employee has disclosed to Chemtura
any agreement or part thereof, still in effect, which imposes any
restrictions on Employee with respect to Employee’s employment, the
pertinent portion of which agreements, if any, are listed on Exhibit A, which is
attached hereto and made a part hereof. Employee represents and
warrants that, except for those restrictions specifically disclosed on Exhibit
A, Employee is not subject to any restrictions arising from any previous
employment. Employee understands that failure to disclose any restriction,
regardless of whether Employee believes said restriction impacts or pertains to
Employee’s employment with Chemtura, may be grounds for immediate termination of
employment with Chemtura, and may also result in legal action.
5. Employee
agrees to set forth a complete list of all inventions developed and owned by
Employee by reason of having been made, conceived, discovered, developed or
reduced to practice by Employee prior to his or her employment by Chemtura
(“Prior Developments”) on Exhibit B. Prior Developments do not include those
inventions subject to another employment agreement with the Employee and a
previous employer. If Exhibit B is blank, Employee represents and
warrants that no Prior Developments exist. Regardless of the content of Exhibit
B, (i) Employee covenants and agrees that Employee shall not include or use
these Prior Developments in any way for the benefit of Chemtura or in a manner
competitive to Chemtura without first notifying and receiving Chemtura’s
expressed written consent to do so, and (ii) Employee hereby grants Chemtura a
perpetual, royalty-free, worldwide, non-exclusive right and license to use,
create derivative works of and use all Prior Developments owned by
Employee.
6. Employee
agrees that if Employee elects to terminate employment with Chemtura, Employee
will use best efforts to provide Chemtura with such advanced written notice as
is reasonable under the circumstances. Moreover, whether termination
of employment with Chemtura is voluntary or involuntary, Employee shall provide
Chemtura with written notice in advance of such termination, (i) identifying
Employee’s subsequent employer, if any, and the nature of the work in which
Employee expects to be engaged therewith and (ii) granting Chemtura permission
to communicate with Employee’s new employer for the purpose of advising
Employee’s new employer of the content of this Agreement.
20
B. Intellectual
Property
1. Employee
agrees that Employee, solely or jointly with others, whether or not during
working hours, will communicate to Chemtura promptly and fully all Confidential
Information including inventions, creations, developments,
discoveries, technical and business innovations, improvements, data, and
writings, whether or not protected or protectable by patent, copyright,
trademark, or any other intellectual property right, and which is made, created,
discovered, conceived, developed, reduced to practice or secured, in connection
with any of Chemtura’s existing businesses or future businesses or businesses
competitive with Chemtura’s existing or future businesses, during the time of
employment from the Effective Date and for a period of one year (1) after
termination of employment with Chemtura, (hereinafter referred to as “Work
Product”).
2. Employee
further agrees that all records, reports, notes, data, compilations and other
recorded matter, and copies and reproductions thereof, containing any
Confidential Information, Work Product, or information otherwise relating to any
of Chemtura’s operations, activities or businesses, created, made or received,
in any form or media, by Employee, during employment with Chemtura, is the sole
and exclusive property of Chemtura. Employee further agrees to keep Confidential
Information, Work Product, and other related information at all times in and
under Chemtura’s sole custody and control, and will immediately surrender the
same at Employee’s termination of employment, if not before, at Chemtura’s
request. Employee further agrees that all Work Product shall be considered works
made for hire and owned solely, completely, and exclusively by Chemtura, and
that compensation for all of which is hereby acknowledged to be included in the
base salary remuneration paid to Employee by Chemtura; provided, however, that
in the event that, by operation of law, a Work Product cannot be considered a
work made for hire, Employee will assign any and all right, title and interest
Employee may have in the Work Product to Chemtura.
3. In
connection with such assignment, Employee will assist Chemtura or its
successors, assigns, designees, and/or nominees, at any time, during or after
employment with Chemtura, and in any legal way, in securing any form of
protection for the Work Product including any action preventing and/or defending
infringement related to the Work Product, whether in a court of law or
administrative proceeding, in any country in the world. Such
assistance shall include, without limitation, (i) the execution of any
documentation necessary to evidence the Chemtura’s full right, title and
interest in and to the Work Product and any intellectual property and
proprietary rights associated therewith; (ii) testimony, at Chemtura’s expense,
including evidencing the ownership of the Work Product by the Chemtura; and
(iii) the execution of any documentation necessary to obtain protection or
provide rights for the benefit of Chemtura of any of the Work Product including
applications for patents, copyrights, trademarks, or other analogous
protections, and any materials or filings connected therewith, including
affidavits, assignments, continuations, renewals, reexaminations, oppositions,
conflicts, invalidation trials, or reissues thereof, anywhere in the
world.
4. Further,
in the event Chemtura is unable, after reasonable effort, to secure Employee’s
signature on any letters patent, copyright or other analogous protection
relating to Work Product, whether because of Employee’s physical or mental
incapacity, or for any other reason whatsoever, Employee hereby irrevocably
designates and appoints Chemtura and its duly authorized officers and agents as
Employee’s agent and attorney-in fact, to act for and on behalf of Employee to
execute and file any such application or applications and to do all other
lawfully permitted acts to further the prosecution and issuance of letter
patents, copyrights or other analogous protections thereon with the same legal
force and effect as if executed by Employee.
21
C. Non-Solicitation
1. Employee
agrees that for so long as Employee is employed by Chemtura and continuing for a
twelve (12) month period following termination of such employment for any
reason, Employee will not without the prior written consent of Chemtura,
directly or indirectly, whether alone, 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 agent, consultant, director,
employee, officer, partner, stockholder or in any other capacity: (i) solicit,
hire, or endeavor to entice away from Chemtura, any person or entity who is, or
during the then most recent twelve (12) month period was employed by or was as
an agent or key consultant of Chemtura; or (ii) solicit, hire, or endeavor to
entice away from Chemtura any person or entity who is, or during the then most
recent twelve (12) month period was a customer, client or to Employee’s
knowledge or the knowledge of the public was reasonably anticipated to become a
customer or client of Chemtura.
2. Employee
acknowledges that Employee has carefully read and considered the provisions of
this Section C and, having done so, agree that the restrictions set forth in
this Section C (including, but not limited to, the duration and geographic scope
of the restrictions set forth in this Section C) are fair and reasonable, and
are reasonably required for the protection of the interests of Chemtura, and do
not preclude Employee from earning a livelihood, nor do they unreasonably impose
limitations on Employee’s ability to earn a living. Employee further
agrees that the potential harm to Chemtura from the non-enforcement of these
restrictions outweighs any potential harm to the Employee.
3. If
any of the provisions of this Section C 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 C shall be
considered divisible and shall immediately be reformed to only such area,
duration and scope of activity as shall be determined to be reasonable and
enforceable by the court having jurisdiction over the
matter. Employee agrees that any such reformation shall be valid and
binding as though any invalid or unenforceable provision had not been included
herein.
D. Remedies and Governing
Law
1. Employee
recognizes and acknowledges that failure to comply with this Agreement may
result in termination of employment with Chemtura and may also result in legal
action. Employee agrees that Confidential Information and Work
Product are valuable to Chemtura and that the terms contained in this Agreement
are reasonable in all respects to protect the rights of Chemtura in such
Confidential Information and Work Product. Employee recognizes and acknowledges
that any breach of this Agreement may give rise to irreparable injury to
Chemtura and that monetary damages will be inadequate to compensate Chemtura for
such breach. Accordingly, Employee agrees that in the event of a breach or
threatened breach by Employee of any of the provisions of this Agreement,
Chemtura would be entitled to monetary damages and any other rights, remedies,
or damages to Chemtura at law or in equity, including a temporary restraining
order, a preliminary injunction and/or a permanent injunction in order to
prevent or to restrain any such breach by Employee, or by any or all of
Employee’s partners, employers, employees, servants, agents, representatives and
any and all persons directly or indirectly acting for, on behalf of, or with
Employee.
22
2. THIS
AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF CONNECTICUT WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
3. This
Agreement shall be binding upon, inure to the benefit of and be enforceable to
the same extent by Chemtura and any respective successors and assigns of
Chemtura or any discrete part thereof.
4. Subject
to the provisions of Section C, Paragraph 3, if any provision of this Agreement
shall be held illegal, void or unenforceable, such provision shall have no force
or effect. However, the illegality or unenforceability of such
provision shall have no effect upon, and shall not impair the legality or
enforceability of, any provision of this Agreement.
5. This
Agreement contains the entire agreement and understanding by and between
Chemtura and Employee with respect to the subject matter contained herein and no
representations, promises, agreements or understandings, written or oral, not
contained herein shall be of any force or effect. This Agreement may be amended
or terminated only in writing signed by
both Employee and Chemtura.
6. By
signing below, Employee acknowledges that Employee has read this Agreement
carefully and that Employee understands and agrees to all of the terms set forth
herein.
IN
WITNESS WHEREOF, Employee and Chemtura hereto have duly executed this Agreement
effective for all purposes and in all respects as of the Effective
Date.
EXHIBIT
A
EMPLOYEE’S PREVIOUS
AGREEMENTS
24
EXHIBIT
B
PRIOR
DEVELOPMENTS
25
EXHIBIT
C
See
attached EMPLOYEE NON-COMPETITION AGREEMENT
26
EMPLOYEE NON-COMPETITION
AGREEMENT
This
EMPLOYEE NON-COMPETITION AGREEMENT (the “Agreement”) is made between Chemtura
Corporation and/or one of its subsidiaries or affiliates (collectively,
“Chemtura”), and the undersigned Employee, effective November 10, 2010
(“Effective Date”). In consideration of Employee’s employment with Chemtura and
for other good and valuable consideration the sufficiency of which Employee
hereby acknowledges, Employee agrees as follows:
A. Non-Competition
1. Employee
agrees that for so long as Employee is employed by Chemtura and continuing for a
period not in excess of twelve (12) months following termination of such
employment for any reason Employee will not without the prior written consent of
Chemtura, directly or indirectly, whether alone, 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 agent, consultant,
director, employee, officer, partner, stockholder or in any other capacity,
Compete with Chemtura. For purposes of this Agreement, the term
“Compete” means to take or plan to take any position, or otherwise perform or
plan to perform any services, in any geographic region: (a) that could result in
the use or disclosure of Confidential Information (as defined in the agreement
between you and Chemtura Corporation, dated November 10, 2010 (your
“Confidentiality Agreement”), whether intentional or inadvertent,
and/or (b) with respect to any business, where as of or within the twenty-four
(24) month period immediately preceding Employee’s termination of employment,
(i) Chemtura is or has engaged in such business, or (ii) Chemtura has formally
announced plans, or Employee has actual knowledge of plans, to engage in such
business.
2. Employee
acknowledges that Employee has carefully read and considered the provisions of
this Section A and, having done so, agrees that the restrictions set forth
in this Section (including, but not limited to, the duration and geographic
scope of the restrictions set forth in this Section) are fair and reasonable,
and are reasonably required for the protection of the interests of Chemtura, and
do not preclude Employee from earning a livelihood, nor do they unreasonably
impose limitations on Employee’s ability to earn a living. Employee
further agrees that the potential harm to Chemtura from the non-enforcement of
these restrictions outweighs any potential harm to the Employee.
3. If
any of the provisions of this Section A 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 shall be
considered divisible and shall immediately be reformed to only such area,
duration and scope of activity as shall be determined to be reasonable and
enforceable by the court having jurisdiction over the
matter. Employee agrees that any such reformation shall be valid and
binding as though any invalid or unenforceable provision had not been included
herein.
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4. Employee
agrees that in the event of termination of employment with Chemtura, whether
voluntary or involuntary, Employee shall provide Chemtura with written notice in
advance of such termination, (i) identifying Employee’s subsequent employer, if
any, and the nature of the work in which Employee expects to be engaged
therewith and (ii) granting Chemtura permission to communicate with Employee’s
new employer for the purpose of advising Employee’s new employer of the content
of this Agreement.
B. Remedies and Governing
Law
1. Employee
recognizes and acknowledges that failure to comply with this Agreement may
result in termination of employment with Chemtura and may also result in legal
action. Employee agrees that the terms contained in this Agreement
are reasonable in all respects to protect the rights of Chemtura and
acknowledges that any breach of this Agreement may give rise to irreparable
injury to Chemtura and that monetary damages will be inadequate to compensate
Chemtura for such breach. Accordingly, Employee agrees that in the event of a
breach or threatened breach by Employee of any of the provisions of this
Agreement, Chemtura would be entitled to monetary damages and any other rights,
remedies, or damages to Chemtura at law or in equity, including a temporary
restraining order, a preliminary injunction and/or a permanent injunction in
order to prevent or to restrain any such breach by Employee, or by any or all of
Employee’s partners, employers, employees, servants, agents, representatives and
any and all persons directly or indirectly acting for, on behalf of, or with
Employee.
2. THIS
AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF CONNECTICUT WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
3. This
Agreement shall be binding upon, inure to the benefit of and be enforceable to
the same extent by Chemtura and any respective successors and assigns of
Chemtura or any discrete part thereof.
4. Subject
to the provisions of Section A, Paragraph 3, if any provision of this Agreement
shall be held illegal, void or unenforceable, such provision shall have no force
or effect. However, the illegality or unenforceability of such
provision shall have no effect upon, and shall not impair the legality or
enforceability of, any provision of this Agreement.
5. This
Agreement contains the entire agreement and understanding by and between
Chemtura and Employee with respect to the subject matter contained herein and no
representations, promises, agreements or understandings, written or oral, not
contained herein shall be of any force or effect. This Agreement may be amended
or terminated only in writing signed by
both Employee and Chemtura.
6. By
signing below, Employee acknowledges that Employee has read this Agreement
carefully and that Employee understands and agrees to all of the terms set forth
herein.
28
IN
WITNESS WHEREOF, Employee and Chemtura hereto have duly executed this Agreement
effective for all purposes and in all respects as of the Effective
Date.
EXHIBIT
D
GENERAL
RELEASE
I, __________________,
in consideration of and subject to the performance by Chemtura Corporation
(together with its subsidiaries, the “Company”), of its
obligations under Section 9 of the Employment
Agreement, dated as of November 10, 2010 (the “Agreement”), do
hereby release and forever discharge as of the date hereof the Company and its
respective affiliates and subsidiaries and all present, former and future
directors, officers, agents, representatives, employees, successors and assigns
of the Company and/or its respective affiliates and subsidiaries and direct or
indirect owners (collectively, the “Released Parties”)
to the extent provided herein (this “General
Release”). The Released Parties are intended third-party
beneficiaries of this General Release, and this General Release may be enforced
by each of them in accordance with the terms hereof in respect of the rights
granted to such Released Parties hereunder. Terms used herein but not
otherwise defined shall have the meanings given to them in the
Agreement.
1. I
understand that any payments or benefits paid or granted to me under Section 9
of the Agreement represent, in part, consideration for signing this General
Release and are not salary, wages or benefits to which I was already
entitled. I understand and agree that I will not receive the payments
and benefits specified in Section 9 of the Agreement unless I execute this
General Release and do not revoke this General Release within the time period
permitted hereafter or breach this General Release. Such payments and
benefits will not be considered compensation for purposes of any employee
benefit plan, program, policy or arrangement maintained or hereafter established
by the Company or its affiliates.
2. Except as
provided in paragraph 4 below and except for the provisions of the Agreement
which expressly survive the termination of my employment with the Company, I
knowingly and voluntarily (for myself, my heirs, executors, administrators and
assigns) release and forever discharge the Company and the other Released
Parties from any and all claims, suits, controversies, actions, causes of
action, cross-claims, counter-claims, demands, debts, compensatory damages,
liquidated damages, punitive or exemplary damages, other damages, claims for
costs and attorneys’ fees, or liabilities of any nature whatsoever in law and in
equity, both past and present (through the date that this General Release
becomes effective and enforceable) and whether known or unknown, suspected, or
claimed against the Company and/or any of the Released Parties which I, my
spouse, or any of my heirs, executors, administrators or assigns, ever had, now
have, or hereafter may have, by reason of any matter, cause, or thing
whatsoever, from the beginning of my initial dealings with the Company to the
date of this General Release, and particularly, but without limitation of the
foregoing general terms, any claims arising from or relating in any way to my
employment relationship with Company, the terms and conditions of that
employment relationship, and the termination of that employment relationship
(including, but not limited to, any allegation, claim or violation, arising
under: Title VII of the Civil Rights Act of 1964, as amended; the
Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as
amended (including the Older Workers Benefit Protection Act); the Equal Pay Act
of 1963, as amended; the Americans with Disabilities Act of 1990; the Family and
Medical Leave Act of 1993; the Worker Adjustment Retraining and Notification
Act; the Employee Retirement Income Security Act of 1974; any applicable
Executive Order Programs; the Fair Labor Standards Act; or their state or local
counterparts; or under any other federal, state or local civil or human rights
law, or under any other local, state, or federal law, regulation or ordinance;
or under any public policy, contract or tort, or under common law; or arising
under any policies, practices or procedures of the Company; or any claim for
wrongful discharge, breach of contract, infliction of emotional distress,
defamation; or any claim for costs, fees, or other expenses, including
attorneys’ fees incurred in these matters) (all of the foregoing collectively
referred to herein as the “Claims”). I
understand and intend that this General Release constitutes a general release of
all claims and that no reference herein to a specific form of claim, statute or
type of relief is intended to limit the scope of this General
Release.
30
3. I
represent that I have made no assignment or transfer of any right, claim,
demand, cause of action, or other matter covered by paragraph 2
above.
4. I agree
that this General Release does not waive or release any rights or claims that I
may have under the Age Discrimination in Employment Act of 1967 which arise
after the date I execute this General Release. I acknowledge and
agree that my separation from employment with the Company in compliance with the
terms of the Agreement shall not serve as the basis for any claim or action
(including, without limitation, any claim under the Age Discrimination in
Employment Act of 1967).
5. I agree
that I hereby waive all rights to xxx or obtain equitable, remedial or punitive
relief from any or all Released Parties of any kind whatsoever, including,
without limitation, reinstatement, back pay, front pay, and any form of
injunctive relief. Notwithstanding the foregoing, I acknowledge that
I am not waiving and am not being required to waive any right that cannot be
waived under law, including the right to file an administrative charge or
participate in an administrative investigation or proceeding; provided, however,
that I disclaim and waive any right to share or participate in any monetary
award resulting from the prosecution of such charge or investigation or
proceeding.
6. In
signing this General Release, I acknowledge and intend that it shall be
effective as a bar to each and every one of the Claims hereinabove mentioned or
implied. I expressly consent that this General Release shall be given full force
and effect according to each and all of its express terms and provisions,
including those relating to unknown and unsuspected Claims (notwithstanding any
state or local statute that expressly limits the effectiveness of a general
release of unknown, unsuspected and unanticipated Claims), if any, as well as
those relating to any other Claims hereinabove mentioned or
implied. I acknowledge and agree that this waiver is an essential and
material term of this General Release and that without such waiver the Company
would not have agreed to the terms of the Agreement. I further agree
that in the event that I should bring a Claim seeking damages against the
Company, or in the event that I should seek to recover against the Company in
any Claim brought by a governmental agency on my behalf, this General Release
shall serve as a complete defense to such Claims to the maximum extent permitted
by law. I further agree that I am not aware of any pending claim, or
of any facts that could give rise to a claim, of the type described in paragraph
2 as of the execution of this General Release.
31
7. I agree
that neither this General Release, nor the furnishing of the consideration for
this General Release, shall be deemed or construed at any time to be an
admission by the Company, any Released Party or myself of any improper or
unlawful conduct.
8. I agree
that I will forfeit all amounts payable by the Company pursuant to the Agreement
if I challenge the validity of this General Release. I also agree
that if I violate this General Release by suing the Company or the other
Released Parties, I will pay all costs and expenses of defending against the
suit incurred by the Released Parties, including reasonable attorneys’ fees, and
return all payments received by me pursuant to the Agreement on or after the
termination of my employment.
9. I agree
that this General Release and the Agreement are confidential and agree not to
disclose any information regarding the terms of this General Release or the
Agreement, except to my immediate family and any tax, legal or other counsel
that I have consulted regarding the meaning or effect hereof or as required by
law, and I will instruct each of the foregoing not to disclose the same to
anyone.
10. Any
non-disclosure provision in this General Release does not prohibit or restrict
me (or my attorney) from responding to any inquiry about this General Release or
its underlying facts and circumstances by the Securities and Exchange Commission
(SEC), the Financial Industry Regulatory Authority (FINRA), or any other
self-regulatory organization or governmental entity.
11. I hereby
acknowledge that Sections 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 24 and 25 of the Agreement
shall survive my execution of this General Release.
12. I
represent that I am not aware of any Claim by me, and I acknowledge that I may
hereafter discover Claims or facts in addition to or different than those which
I now know or believe to exist with respect to the subject matter of the release
set forth in paragraph 2 above and which, if known or suspected at the time of
entering into this General Release, may have materially affected this General
Release and my decision to enter into it.
13. Notwithstanding
anything in this General Release to the contrary, this General Release shall not
relinquish, diminish, or in any way affect any rights or claims arising out of
any breach by the Company or by any Released Party of the Agreement after the
date hereof.
14. Whenever
possible, each provision of this General Release shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this General Release is held to be invalid, illegal or unenforceable in any
respect under any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other provision or any other
jurisdiction, but this General Release shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein. This General Release constitutes the complete and
entire agreement and understanding among the parties, and supersedes any and all
prior or contemporaneous agreements, commitments, understandings or
arrangements, whether written or oral, between or among any of the parties, in
each case concerning the subject matter hereof.
32
BY
SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
|
(i)
|
I
HAVE READ IT CAREFULLY;
|
|
(ii)
|
I
UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS,
INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION IN
EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS ACT OF
1964, AS AMENDED, THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH
DISABILITIES ACT OF 1990, AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED;
|
|
(iii)
|
I
VOLUNTARILY CONSENT TO EVERYTHING IN
IT;
|
|
(iv)
|
I
HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND I
HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION, I HAVE CHOSEN
NOT TO DO SO OF MY OWN
VOLITION;
|
|
(v)
|
I
HAVE HAD AT LEAST [21][45] DAYS FROM THE DATE OF
MY RECEIPT OF THIS RELEASE TO CONSIDER IT AND THE CHANGES MADE SINCE MY
RECEIPT OF THIS RELEASE ARE NOT MATERIAL OR WERE MADE AT MY REQUEST AND
WILL NOT RESTART THE REQUIRED [21][45]-DAY
PERIOD;
|
|
(vi)
|
I
UNDERSTAND THAT I HAVE SEVEN (7) DAYS AFTER THE EXECUTION OF THIS RELEASE
TO REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR
ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS
EXPIRED;
|
|
(vii)
|
I
HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE
ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT;
AND
|
|
(viii)
|
I
AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED,
WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY
AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY
ME.
|
SIGNED: Xxxxx X.
Xxxxxxxx
DATE: November
10, 2010
33
