LONG-TERM INCENTIVE AWARD CLAW-BACK AGREEMENT
EXHIBIT 10.4
This
Agreement between Celanese Corporation and ______________ (the
“Employee”) is entered into as of the date set forth on the signature page
below. The collective consideration for Employee’s obligations under
this Agreement, each component of which the Employee specifically acknowledges
both the receipt and independent sufficiency thereof as consideration, include:
(i) Employee’s receipt of cash and/or stock-related awards under the Celanese
Corporation 2004 Stock Incentive Plan (including any successor plan), or any
such other cash or stock-related award under any plan or arrangement sponsored
by Celanese (collectively referred to as the “Plan”), subject to the terms
thereof; (ii) Employee’s continued employment with Celanese; (iii) the
opportunity to receive special training and education, both on-the-job and
otherwise as feasible; and (iv) Employee’s receipt of confidential, proprietary
information relating to Celanese business and clients.
Accordingly,
Employee and Celanese agree as follows:
1. DEFINITIONS
a. “Celanese”
means Celanese Corporation, its direct and indirect subsidiaries, affiliated
entities, successors and assigns.
b. “Confidential
Information” means any non-public, proprietary or confidential information,
including without limitation trade secrets, know-how, research and development,
software, databases, inventions, processes, formulae, technology, designs and
other intellectual property, information concerning finances, investments,
profits, pricing, costs, products, services, vendors, customers, clients,
partners, investors, personnel, compensation, benefits, recruiting, training,
advertising, sales, marketing, promotions, government and regulatory activities
and approvals concerning the past, current or future business, activities and
operations of Celanese and/or any third party that has disclosed or provided any
of same to Celanese on a confidential basis. “Confidential
Information” also includes any information designated as a trade secret or
proprietary information by operation of law or otherwise, but shall not be
limited by such designation. “Confidential Information” shall not
include any information that is (i) generally known to the industry or the
public other than as a result of Employee’s breach of this covenant; (ii) made
legitimately available to Employee by a third party without breach of any
confidentiality obligation; or (iii) required by law to be disclosed; provided
that Employee shall give prompt written notice to Celanese of such requirement,
disclose no more information than is so required, and cooperate with any
attempts by Celanese to obtain a protective order or similar
treatment.
c. “Competitive
Business” means businesses that compete with products and services offered by
Celanese in those countries where Celanese manufactures, produces, sells,
leases, rents, licenses or otherwise provides its products or services during
the term of Employee’s employment with Celanese or, following the Employee’s
termination of employment, within two (2) years preceding the date of
termination (including, without limitation, businesses which Celanese has
specific plans to conduct in the future that were disclosed or made available to
Employee), provided that, if Employee’s duties were limited to particular
product lines or businesses during such period, the Competitive Business shall
be limited to those product lines or businesses in those countries for which
Employee had such responsibility.
d. “Effective
Date” means December 11, 2008.
e. “Restricted
Period” means one year from the date of Employee’s termination of employment
from Celanese for any reason.
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2. DISCLOSURE
AND USE OF CONFIDENTIAL INFORMATION AND PROPRIETARY RIGHTS
a. Based
upon the assurances given by Employee in this Agreement, Celanese will provide
Employee with access to its Confidential Information. Employee hereby
reaffirms that all Confidential Information received by Employee prior to the
termination of this Agreement is the exclusive property of Celanese and Employee
releases any individual claim to the Confidential Information.
b. Employee
will not at any time (whether during or after Employee’s employment with
Celanese) (a) retain or use for the benefit, purposes or account of Employee or
any other person; or (b) disclose, divulge, reveal, communicate, share, make
available, transfer or provide access to any person outside Celanese (other than
its professional advisers who are bound by confidentiality obligations), any
Confidential Information without the prior written authorization of
Celanese.
c. Upon
termination of Employee’s employment with Celanese for any reason, Employee
shall (a) cease and not thereafter commence use of any Confidential Information
or intellectual property (including without limitation, any patent, invention,
copyright, trade secret, trademark, trade name, logo, domain name or other
source indicator) owned or used by Celanese; (b) immediately destroy, delete, or
return to Celanese, at Celanese’s option, all originals and copies in any form
or medium (including memoranda, books, papers, plans, computer files, letters
and other data) in Employee’s possession or control (including any of the
foregoing stored or located in Employee’s office, home, laptop or other
computer, whether or not Celanese property) that contain Confidential
Information or otherwise relate to the business of Celanese, except that
Employee may retain only those portions of any personal notes, notebooks and
diaries that do not contain any Confidential Information; and (c) notify and
fully cooperate with Celanese regarding the delivery or destruction of any other
Confidential Information of which Employee is or becomes aware.
d. If
Employee has previously entered into any confidentiality or non-disclosure
agreements with any former employer, Employee hereby represents and warrants
that such confidentiality and/or non-disclosure agreement or agreements have
been fully disclosed and provided to Celanese.
e. If
Employee has created, invented, designed, developed, contributed to or improved
any works of authorship, inventions, intellectual property, materials, documents
or other work product (including without limitation, research, reports,
software, databases, systems, applications, presentations, textual works,
content, or audiovisual materials) (“Works”), either alone or with third
parties, prior to Employee’s employment by Celanese, that are relevant to or
implicated by such employment (“Prior Works”), Employee hereby grants Celanese a
perpetual, non-exclusive, royalty-free, worldwide, assignable, sublicensable
license under all rights and intellectual property rights (including rights
under patent, industrial property, copyright, trademark, trade secret, unfair
competition and related laws) therein for all purposes in connection with
Celanese’s current and future business. A list of all such Works as
of the date hereof is attached hereto as Exhibit A.
f. If
Employee creates, invents, designs, develops, contributes to or improves any
Works, either alone or with third parties, at any time during Employee’s
employment by Celanese and within the scope of such employment and/or with the
use of any Celanese resources (“Company Works”), Employee shall promptly and
fully disclose same to Celanese and hereby irrevocably assigns, transfers and
conveys, to the maximum extent permitted by applicable law, all rights and
intellectual property rights therein (including rights under patent, industrial
property, copyright, trademark, trade secret, unfair competition and related
laws) to Celanese to the extent ownership of any such rights does not vest
originally in Celanese.
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g. Employee
agrees to keep and maintain adequate and current written records (in the form of
notes, sketches, drawings, and any other form or media requested by Celanese) of
all Company Works. The records will be available to and remain the sole property
and intellectual property of Celanese at all times.
h. Employee
shall take all requested actions and execute all requested documents (including
any licenses or assignments required by a government contract) at Celanese’s
expense (but without further remuneration) to assist Celanese in validating,
maintaining, protecting, enforcing, perfecting, recording, patenting or
registering any of Celanese’s rights in the Prior Works and Company
Works. If Celanese is unable for any other reason to secure
Employee’s signature on any document for this purpose, then Employee hereby
irrevocably designates and appoints Celanese and its duly authorized officers
and agents as Employee’s agent and attorney in fact, to act for and in
Employee’s behalf and stead to execute any documents and to do all other
lawfully permitted acts in connection with the foregoing.
i. Employee
shall not improperly use for the benefit of, bring to any premises of, divulge,
disclose, communicate, reveal, transfer or provide access to, or share with
Celanese any confidential, proprietary or non-public information or intellectual
property relating to a former employer or other third party without the prior
written permission of such third party. Employee hereby indemnifies,
holds harmless and agrees to defend Celanese and its officers, directors,
partners, employees, agents and representatives from any breach of the foregoing
covenant. Employee shall comply with all relevant policies and
guidelines of Celanese, including regarding the protection of confidential
information and intellectual property and potential conflicts of
interest. Employee acknowledges that Celanese may amend any such
policies and guidelines from time to time, and that Employee remains at all
times bound by their most current version.
j. In
the event Employee leaves the employ of Celanese, Employee hereby grants consent
to notification by Celanese to any subsequent employer about Employee’s rights
and obligations under this Paragraph 2.
3. NON-COMPETITION
AND NON-SOLICITATION
a. During
the time of Employee’s employment with Celanese and for the Restricted Period
thereafter, Employee shall not, whether on Employee’s own behalf or on behalf of
or in conjunction with any person, directly or indirectly solicit or assist in
soliciting in competition with Celanese, the business of any customer,
prospective customer, client or prospective client: (i) with whom Employee had
personal contact or dealings on behalf of Celanese during the one year period
preceding the termination of Employee’s employment; (ii) with whom employees
directly or indirectly reporting to Employee have had personal contact or
dealings on behalf of Celanese during the one-year immediately preceding the
termination of Employee’s employment; or (iii) for whom Employee had direct or
indirect responsibility during the one year period immediately preceding the
termination of Employee’s employment.
b. During
the time of Employee’s employment with Celanese and for the Restricted Period
thereafter, Employee shall not directly or indirectly: (i) engage in any
Competitive Business, (ii) enter the employ of, or render any services to, any
person (or any division or controlled or controlling affiliate of any person)
who or which engages in a Competitive Business, (iii) acquire a financial
interest in, or otherwise become actively involved with, any Competitive
Business, directly or indirectly, as an individual, partner, stockholder,
officer, director, principal, agent, trustee or consultant, or (iv) interfere
with, or attempt to interfere with, business relationships between Celanese and
customers, clients, suppliers partners, members or investors of
Celanese. Notwithstanding the foregoing, Employee may directly or
indirectly own, solely as an investment, securities of any person engaged in the
business of Celanese which are publicly traded on a national or regional stock
exchange or on the over-the-counter market if Employee (x) is not a controlling
person of, or a member of a group which controls, such person and (y) does not,
directly or indirectly, own 5% or more of any class of securities of such
person.
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4. NON-SOLICITATION
OF CELANESE EMPLOYEES AND CONSULTANTS
Employee
shall not:
a. During
the time of Employee’s employment with Celanese and for the Restricted Period
thereafter, Employee shall not, whether on Employee’s own behalf or on behalf of
or in conjunction with any Person, directly or indirectly: (i) solicit,
interview, encourage, or take any other action that would tend to influence in
any manner any employee of Celanese to leave the employment of Celanese (other
than as a result of a general advertisement of employment made by Employee’s
subsequent employer or business, not directed at any such employee), or (ii)
hire any such employee who was employed by Celanese as of the date of Employee’s
termination of employment or who left Celanese coincident with, or within one
year prior to or after, Employee’s termination of employment.
b. During
the time of Employee’s employment with Celanese and for the Restricted Period
thereafter, Employee shall not, directly or indirectly, solicit or encourage any
consultant then under contract with Celanese to cease to work with
Celanese.
5. EMPLOYEE’S
BEST EFFORTS AND EXCLUSIVE SERVICE
Employee
agrees to diligently and loyally serve Celanese, to devote his/her full best
efforts, full time and energy to such service, and to follow the directions of
Celanese in regard to such services. Employee agrees to conduct all
business activities in accordance with the directives, policies, and
instructions of Celanese in a proper and professional manner so as to maintain
Celanese’s ethical business, and professional standards, and the goodwill and
reputation of Celanese. Employee also warrants and represents that
he/she has been advised of and agrees to comply with Celanese’s Code of Business
Conduct, as amended from time to time, including Celanese’s policies against
discrimination and harassment.
Employee
further agrees that during employment with Celanese, he/she will not engage in
any other employment or business venture. Employee warrants that
he/she is not subject to any agreement with a prior employer or other party that
would restrict his/her employment by Celanese or the performance of his/her
duties under this Agreement.
6. EMPLOYMENT
RELATIONSHIP
Notwithstanding
any other provisions of this Agreement and unless contrary to applicable law or
the terms of a written contract executed by an officer of Celanese, employment
with Celanese is for an indefinite term and may be ended, with or without cause,
at any time by either the Employee or Celanese, with or without previous
notice. Nothing in this document will be construed to oblige Celanese
to continue Employee’s employment for any particular time or under any
particular terms and conditions of employment.
Page 4 of 6
7. REMEDIES
AND ENFORCEMENT
a. Forfeiture of Stock-Related
Benefits and Rights: Employee acknowledges that the Plan is
intended to induce and reward Employee’s continued employment, commitment, and
loyalty to Celanese. As further consideration for Employee’s
stock-related awards, Employee agrees that (a) if at any time during his/her
employment with Celanese or after his/her termination of employment for any
reason, Employee breaks or states his/her intention to break the promises he/she
made in Paragraphs 2, 3, or 4 of this Agreement, or (b) it is determined by
Celanese that Employee engaged in conduct related to his/her employment with
Celanese for which he/she or Celanese could be held either criminally or civilly
liable, then Employee shall (x) immediately cease vesting in all awards granted
under the Plan on or after the Effective Date and (y) forfeit and return to
Celanese any and all rights and interests that he/she may have in any awards
(and, if applicable, repay the value of any awards Employee no longer holds by
means of a certified check) granted under the Plan on or after the Effective
Date in which Employee vested during the period that began on the date one year
preceding Employee’s breaking (or stating his/her intention to break) the
promises in Paragraphs 2, 3, or 4 of this Agreement, or one year preceding
Employee’s termination (whichever date is earlier), unless terminated or
forfeited sooner by operation of another term or condition of the
Plan.
b. Reasonableness of
Restrictions / Injunctive Relief: Employee acknowledges that
the provisions of this Agreement are reasonable and necessary for the protection
of Celanese’s legitimate business interests, including but not limited to its
Confidential Information, customer, vendor, supplier and business partner
relationships and goodwill. Employee also acknowledges that the
provisions of this Agreement would not impede his or her ability to earn a
living in his or her chosen profession should he or she terminate employment
with Celanese. Employee further acknowledges that a breach of any of
the provisions of this Agreement will result in continuing and irreparable
damages to Celanese for which there would be no adequate remedy at law and that
Celanese, in addition to all other relief available to it, shall be entitled to
the issuance of injunctive relief restraining him or her from committing or
continuing to commit any breach of this agreement. Accordingly, if
Employee breaches this Agreement, Celanese shall be entitled, in addition to all
other remedies it may have, to immediate injunctions or other appropriate orders
to restrain any such breach without requirement to post a bond. In
addition, in the event of a breach of Paragraphs 2, 3 or 4, Employee agrees to
pay to Celanese all costs of enforcement of this Agreement, including, but not
limited to, reasonable attorney fees.
c. Reformation: If
any provision of Paragraphs 2, 3 or 4 should be found by any court of competent
jurisdiction to be unreasonable by reason of its being too broad as to the
period of time, territory, aspects of business or clients covered or otherwise,
then, and in that event, such provision shall nevertheless remain valid and
fully effective, but shall be considered to be amended, for the limited purpose
of its application within the geographic jurisdiction of the court so finding,
so that any term of the provision found unreasonable shall be limited to the
maximum period of time, the largest territory, the most aspects of business and
clients covered and/or the broadest other limitations, as the case may be, which
would be found reasonable and enforceable by such court. Similarly,
if any remedy is found to be unenforceable in whole or in part, or to any
extent, such provision shall remain in effect only to the extent the remedy or
remedies would be enforceable by such court.
d. Severability and
Survival: Subject to the provisions of Subparagraph 7(c),
whenever possible, each provision of this Agreement will be interpreted in such
a manner as to be effective and valid under applicable law or public
policy. However, if any provision of this Agreement is held to be
prohibited by or invalid under applicable law or public policy, such provisions,
to the extent of such prohibition or invalidity, shall be deemed not to be part
of this Agreement otherwise applicable to Employee, and shall not invalidate the
remainder of such provision or the remaining provisions of this
Agreement.
e. Right of
Set-Off: Employee consents to a deduction from any amounts
Celanese may owe Employee from time to time, to the extent of the amounts
Employee owes Celanese (including, but not limited to, any amounts Employee owes
under the Subparagraphs 7(a) and 7(b) above). Any such set-off shall
be effected pursuant to the requirements of Section 409A of the Internal Revenue
Code of 1986, as amended. If Celanese does not recover by means of
set-off the full amount Employee owes, Employee agrees to pay immediately the
unpaid balance to Celanese upon Celanese’s demand.
Page 5 of 6
8. DISCLOSURE
AND NOTIFICATION
a. Prior
to signing this Agreement, Employee shall disclose to Celanese in writing any
restrictions that may affect Employee’s ability to work on behalf of Celanese,
including, but not limited to, any existing non-compete agreements,
confidentiality agreements, court orders, or pending or threatened litigation
with prior employers/contractors/third parties. Such written
disclosure is attached to this Agreement as Exhibit B, which is fully
incorporated herein by reference. Employee further warrants and
represents he/she has not disclosed and will not disclose to Celanese, and has
not used and will not use on Celanese’s behalf, any trade secrets or
confidential, proprietary information belonging to a third party, without first
obtaining written consent from that third party.
b. Employee
agrees that he/she will (and Celanese may) notify anyone employing Employee or
evidencing an intention to employ Employee of the existence and provisions of
this Agreement.
9. CONSENT
TO JURISDICTION
To the
fullest extent allowed by applicable law, any dispute or conflict arising out of
or relating to this Agreement, except for an action brought by Celanese pursuant
to Paragraphs 2, 3 or 4 of this Agreement, must be brought in a court that has
jurisdiction over matters in Dallas County, Texas, which court(s) shall have
sole and exclusive jurisdiction of such matters. Furthermore, to the
fullest extent allowed by applicable law, Employee agrees such court shall have
personal jurisdiction over him/her and further agrees to waive any rights he/she
may have to challenge the court’s jurisdiction over him/her. To the
fullest extent allowed by applicable law, Employee further consents to such
selection of jurisdiction, forum and venue and to the uncontested enforcement of
a judgment from such court in any other jurisdiction where Employee or his/her
assets are located.
10. AMENDMENTS
This
Agreement may not be modified or amended except by a written instrument executed
by Employee and the Chief Executive Officer of Celanese Corporation, the Senior
Vice President of Human Resources of Celanese Corporation, or either of their
designees.
11. WAIVER
All the
rights of Celanese and Employee under this Agreement shall be cumulative and not
alternative, and a waiver or indulgence by either party shall not be construed
as a waiver of any other rights or entitlements hereunder.
12. ENTIRE
AGREEMENT
This
Agreement constitutes the parties’ entire agreement, and supersedes and prevails
over all other prior agreements, understandings or representations by or between
the parties, whether oral or written, with respect to the subject matters
herein, except as to (a) the terms of any Plan (as defined on page 1 of this
Agreement) which may apply, as supplemented by the provisions of Paragraph 7(a)
above; and (b) if a post-employment restrictive covenant in this Agreement is
found unenforceable (despite, and after application of, any applicable right to
reformation that could add or renew enforceability), then any prior agreement
between the parties that would provide for a restriction on the same or
substantially similar post-employment conduct of Employee shall not be
considered superseded and shall remain in effect.
The
parties have executed this Agreement as of the date indicated
below.
ACCEPTED AND
AGREED: PARTICIPANT
By:
__________________________
Name:
Employee
ID:
Date:
________________________
Page 6 of 6
EXHIBIT
A
List of
Company Works Pursuant to Paragraph 2(e):
A-1
EXHIBIT
B
Disclosure
of Restrictions Pursuant to Paragraph 8(a):
B-1
