CHANGE IN CONTROL AGREEMENT
Exhibit 10.1
This CHANGE IN CONTROL AGREEMENT (the
“Agreement”) is entered into on
May 1, 2008 (the “Effective Date”)
by and between Celanese Corporation (the
“Company”) and Xxxxxxxxxxx X. Xxxxxx
(the “Executive”).
The Company considers it essential to xxxxxx the continued
employment of key management personnel. The Board of Directors
of the Company (the “Board”) believes
that it is in the best interests of the Company and its
stockholders to assure the Company will have the continued
dedication of Executive, notwithstanding the possibility, threat
or occurrence of a Change in Control. The Board believes it is
imperative to diminish the inevitable distraction of Executive
by virtue of the personal uncertainties and risks created by a
pending or threatened Change in Control and to encourage
Executive’s full attention and dedication to the Company
currently and in the event of any threatened or pending Change
in Control. The Company also requests, and the Executive desires
to give the Company, certain assurances with regard to the
protection of Confidential Information and Intellectual Property
of the Company and its Affiliates. Therefore, the Company and
the Executive have entered into this Agreement.
In consideration of the premises and mutual covenants contained
herein and for other good and valuable consideration, the
parties agree as follows:
1. Definitions:
a. “Affiliate” shall mean, when used with
respect to any person or entity, any other person or entity
which controls, is controlled by or is under common control with
the specified person or entity. As used in the immediately
preceding sentence, the term “control” (with
correlative meanings for “controlled by” and
“under common control with”) shall mean, with respect
to any entity, the ownership, directly or indirectly, of fifty
percent (50%) or more of the outstanding equity interests in
such entity.
b. “Beneficial Owner” shall have the
meaning given such term in
Rule 13d-3
of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”).
c. “Cause” shall mean
(i) Executive’s willful failure to perform
Executive’s duties hereunder (other than as a result of
total or partial incapacity due to physical or mental illness)
for a period of 30 days following written notice by the
Company to Executive of such failure, (ii) conviction of,
or a plea of nolo contendere to, (x) a felony under the
laws of the United States or any state thereof or any similar
criminal act in a jurisdiction outside the United States or
(y) a crime involving moral turpitude,
(iii) Executive’s willful malfeasance or willful
misconduct which is demonstrably injurious to the Company or its
Affiliates, (iv) any act of fraud by Executive,
(v) any material violation of the Company’s code of
conduct, (vi) any material violation of the Company’s
policies concerning harassment or discrimination,
(vii) Executive’s conduct that causes material harm to
the business reputation of the Company or its Affiliates, or
(viii) Executive’s breach of the provisions of
Sections 7 (Confidentiality; Intellectual Property) or 8
(Non-Competition; Non-Solicitation) of this Agreement.
d. A “Change In Control” will be
deemed to have occurred for purposes hereof, upon any one of the
following events: (a) any person (within the meaning of
Sections 13(d) and 14(d) of the Exchange Act), other than
the Company (including its subsidiaries, directors, and
executive officers) has become the Beneficial Owner of thirty
percent (30%) or more of the combined voting power of the
Company’s then outstanding common stock or equivalent in
voting power of any class or classes of the Company’s
outstanding securities ordinarily entitled to vote in elections
of directors (“Voting Securities”)
(other than as a result of an issuance of securities by the
Company approved by Incumbent Directors, or open market
purchases approved by Incumbent Directors at the time the
purchases are made); (b) individuals who constitute the
Board as of the Effective Date (the “Incumbent
Directors”) have ceased for any reason to
constitute at least a majority thereof, provided that any person
becoming a director after the Effective Date whose election, or
nomination for election by the Company’s stockholders, was
approved by a majority of the directors comprising the
Incumbent Board, either by a specific vote or by approval of the
proxy statement of the Company in which such person is named as
a nominee for director without objection to such nomination
shall be an Incumbent Director; provided, however, that no
individual initially elected or nominated as a director of the
Company as a result of an actual or threatened election contest
with respect to the election or removal of directors
(“Election Contest”) or other actual or
threatened solicitation of proxies or consents by or on behalf
of any Person other than the Board (“Proxy
Contest”), including by reason of any agreement
intended to avoid or settle any Election Contest or Proxy
Contest, shall be deemed an Incumbent Director; (c) the
stockholders of the Company approve a reorganization, merger,
consolidation, statutory share exchange or similar form of
corporate transaction, or the sale or other disposition of all
or substantially all of the Company’s assets (a
“Transaction”), unless immediately
following such Transaction, (i) all or substantially all of
the Persons who were the Beneficial Owners of the Voting
Securities outstanding immediately prior to such Transaction are
the Beneficial Owners of more than 50% of the combined voting
power of the then outstanding voting securities entitled to vote
generally in the election of directors of the entity resulting
from such Transaction (including, without limitation, an entity
which as a result of such Transaction owns the Company or all or
substantially all of the Company’s assets or stock either
directly or through one or more subsidiaries, the
“Surviving Entity”) in substantially the
same proportions as their ownership, immediately prior to such
Transaction, of the Voting Securities, (ii) no Person is
the Beneficial Owner of 30% or more of the combined voting power
of the then outstanding voting securities entitled to vote
generally in the election of directors of the Surviving Entity,
and (iii) at least a majority of the members of the board
of directors of the Surviving Entity are Incumbent Directors; or
(d) approval by the Company’s stockholders of a
complete liquidation and dissolution of the Company.
However, if in any circumstance in which the foregoing
definition would be operative and with respect to which the
income tax under Section 409A of the Code would apply or be
imposed, but where such tax would not apply or be imposed if the
meaning of the term “Change in Control” met the
requirements of Section 409A(a)(2)(A)(v) of the Code, then
the term “Change in Control” herein shall mean, but
only for the transaction so affected, a “change in control
event” within the meaning of Treas. Reg.
§ 1.409A — 3(i)(5).
e. “Change In Control Protection Period”
shall mean that period commencing on the date that the
Company or a third party publicly announces an event that, if
consummated, would constitute a Change In Control and ending
(i) on the date that the circumstances giving rise to the
announcement of the event are abandoned or withdrawn, or
(ii) if such transaction is consummated, two years after
the Change In Control.
f. “COBRA” shall mean those provisions of
the Consolidated Omnibus Budget Reconciliation Act of 1986, as
amended, related to continuation of group health and dental plan
coverage as set forth in Code section 4980B.
g. “Code” shall mean the Internal Revenue
Code of 1986, as amended from time to time.
h. “Competitive Business” shall mean
businesses that compete with products and services offered by
the Company in those countries where the Company or any of its
Affiliates manufactures, produces, sells, leases, rents,
licenses or otherwise provides its products or services during
the two (2) years preceding the Termination Date
(including, without limitation, businesses which the Company or
its Affiliates have specific plans to conduct in the future that
were disclosed or made available to Executive), provided that,
if Executive’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 the Executive had such responsibility.
i. “Confidential Information” shall mean
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 the Company, its Affiliates
and/or any
third party that has disclosed or provided any of same to the
Company or its Affiliates on a confidential basis.
“Confidential Information” also includes any
information
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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
Executive’s breach of this covenant; (ii) made
legitimately available to Executive by a third party without
breach of any confidentiality obligation; or (iii) required
by law to be disclosed; provided that Executive shall give
prompt written notice to the Company of such requirement,
disclose no more information than is so required, and cooperate
with any attempts by the Company to obtain a protective order or
similar treatment.
j. “Controlled Group” shall mean all
corporations or business entities that are, along with the
Company, members of a controlled group of corporations or
businesses, as defined in Code Sections 414(b) and 414(c),
except that the language “at least 50 percent” is
used instead of “at least 80 percent” in applying
the rules of Code Sections 414(b) and 414(c).
k. “Fiscal Year” shall mean the fiscal
year of the Company.
l. “Good Reason” shall mean any of the
following conditions which occurs without the consent of the
Executive: (i) a material diminution in the
Executive’s base salary or annual bonus opportunity;
(ii) a material diminution in the Executive’s
authority, duties, or responsibilities (including status,
offices, titles and reporting requirements); (iii) a
material change in the geographic location at which the
Executive must perform his duties; (iv) failure of the
Company to pay compensation or benefits when due, or
(v) any other action or inaction that constitutes a
material breach by the Company of this Agreement. The conditions
described above will not constitute “Good Reason”
unless the Executive provides written notice to the Company of
the existence of the condition described above within
90 days after the initial existence of such condition. In
addition, the conditions described above will not constitute
“Good Reason” unless the Company fails to remedy the
condition within a period of thirty (30) days after receipt
of the notice described in the preceding sentence. If the
Company fails to remedy the condition within the period referred
to in the preceding sentence, Executive may terminate his
employment with the Company for “Good Reason” within
in the next thirty (30) days following the expiration of
the cure period.
m. “Notice of Termination” shall mean a
notice which shall indicate the general reasons for the
termination employment and the circumstances claimed to provide
a basis for termination of employment or other Separation of
Service under the provision so indicated.
n. “Person” shall mean any person, firm,
partnership, joint venture, association, corporation or other
business organization, entity or enterprise whatsoever.
o. “Restricted Period” shall be
(i) one year from the Termination Date in the event of a
Separation from Service that occurs during the Service Term (as
defined hereinafter) other than in the case of an involuntary
Separation from Service without Cause, (ii) in the case of
an involuntary Separation from Service without Cause during the
Service Term, an amount of time in whole months equal to the
number of months’ salary the Company agrees to provide to
Executive in severance, whether paid over time or in a lump sum;
and (iii) eighteen months from the Termination Date in the
event of a Separation from Service following a Change In Control
where Executive receives the Change In Control Payment (as
defined hereinafter).
p. “Separation from Service” shall mean an
event after which the Executive shall no longer provide services
to the members of the Controlled Group, whether voluntarily or
involuntarily as determined by the Committee (as hereafter
defined) in accordance with Treas. Reg.
§ 1.409A-1(h)(1). A Separation from Service shall
occur when Executive has experienced a termination of employment
from the members of the Controlled Group. Executive shall be
considered to have experienced a termination of employment when
the facts and circumstances indicate that the Executive and the
Company reasonably anticipate that either (i) no further
services will be performed for the members of the Controlled
Group after a certain date, or (ii) that the level of bona
fide services the Executive will perform for the members of the
Controlled Group after such date (whether as an employee or as
an independent contractor) will permanently decrease to no more
than 20% of the average level of bona fide services performed by
such Executive (whether as an employee or an independent
contractor) over the immediately preceding
36-month
period (or the full period of services to the members of the
Controlled Group if the Executive has been providing services to
the members of the
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Controlled Group less than 36 months). If Executive is on
military leave, sick leave, or other bona fide leave of absence,
the employment relationship between the Executive and the
members of the Controlled Group shall be treated as continuing
intact, provided that the period of such leave does not exceed
6 months, or if longer, so long as the Executive retains a
right to reemployment with the members of the Controlled Group
under an applicable statute or by contract. If the period of a
military leave, sick leave, or other bona fide leave of absence
exceeds 6 months and the Executive does not retain a right
to reemployment under an applicable statute or by contract, the
employment relationship shall be considered to be terminated for
purposes of this Agreement as of the first day immediately
following the end of such
6-month
period. In applying the provisions of this paragraph, a leave of
absence shall be considered a bona fide leave of absence only if
there is a reasonable expectation that the Executive will return
to perform services for any members of the Controlled Group.
Notwithstanding the foregoing provisions, if Executive provides
services for the Company as both an employee and as a
non-employee director, to the extent permitted by Treas. Reg.
§ 1.409A-1(h)(5) the services provided by such
Executive as a non-employee director shall not be taken into
account in determining whether the Executive has experienced a
Separation from Service.
q. “Target Bonus” shall mean the target
bonus for Executive under any annual bonus plan in effect from
time to time as determined by the Compensation Committee (the
“Committee”) or the Board.
r. “Termination Date” shall mean the date
upon which a Separation from Service with respect to an
Executive occurs.
2. Term of Change In Control Agreement.
a. This Agreement shall be for an initial term (the
“Initial Term”) of two years and shall
continue to renew for consecutive two year terms thereafter (a
“Renewal Term”), unless either party
shall give written notice to the other (a “Notice of
Non-Renewal”) that such agreement shall not renew
at least ninety days prior to the expiration of the Initial Term
or Renewal Term then in effect. Notwithstanding the foregoing,
the Company may not give a Notice of Non-Renewal during the
Change In Control Protection Period.
b. This Agreement, except those provisions which shall
survive under Section 11(k), shall terminate upon the
termination of Executive’s employment for any reason other
than the termination of Executive’s employment during the
Change In Control Protection Period (x) by the Company
without Cause or (y) by the Executive with Good Reason. No
payment under this Agreement will be due to Executive upon
termination of Executive’s employment for any reason other
than as specified in (x) or (y) above.
3. Executive’s Incumbent Position.
a. Unless notified otherwise by the Chief Executive Officer
of the Company or the Board, Executive shall serve as Vice
President of Finance and Treasurer (“Executive’s
Incumbent Position”). In such position, Executive
shall have such duties and authority as shall be determined from
time to time by the Chief Executive Officer and the Board. If
requested, Executive shall also serve as a member of the Board
without additional compensation. The period during which the
Executive shall be employed by the Company shall be called the
“Service Term.”
b. Except as provided in Section 5, (i) either
Company or Executive may terminate the employment relationship
at any time, with or without Cause or Good Reason,
(ii) this Agreement shall not be construed as giving the
Executive any right to be retained in the employ of the Company
or its Affiliates, (iii) the Company may at any time
terminate the Executive free from any liability of any claim
under this Agreement, except as expressly provided herein; and
(iv) the Company may demote Executive at any time in its
absolute and sole discretion without liability to the Executive.
c. During the Service Term, Executive will devote
Executive’s full business time and best efforts to the
performance of Executive’s duties hereunder and will not
engage in any other business, profession or occupation for
compensation or otherwise which would conflict or interfere with
the rendition of such services either directly or indirectly,
without the prior written consent of the Board; provided that
nothing herein shall preclude Executive, (i) subject to the
prior approval of the Board, from accepting appointment to or
continuing to serve on any board of directors or trustees of any
business corporation or any charitable organization or
(ii) from participating in charitable activities or
managing personal investments; provided in each case, and in the
aggregate, that such
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activities do not conflict or interfere with the performance of
Executive’s duties hereunder or conflict with
Sections 7 or 8. Executive shall promote the goodwill of
the Company with its employees, customers, stockholders,
vendors, and the general public. During the Service Term,
reasonable business expenses incurred by Executive in the
performance of Executive’s duties hereunder and to support
the goodwill and business relationships of the Company shall be
reimbursed by the Company in accordance with Company policies.
4. Obligations of the Company upon Change In Control
with Respect to Long-Term Incentive Awards and Deferred
Compensation.
The effect of a change in control on any long-term incentive
awards (cash or equity) or deferred compensation previously
granted to the Executive under the 2008 Deferred Compensation
Plan, 2004 Stock Incentive Plan or the 2004 Deferred
Compensation Plan, as amended, (the “Long-Term
Incentive Awards”) shall be governed by the terms
and conditions of the applicable individual award agreements or
deferral agreements and the Celanese Corporation 2008 Deferred
Compensation Plan, the 2004 Stock Incentive Plan or the 2004
Deferred Compensation Plan, as amended (collectively, the
“Long-Term Incentive Award Agreements”),
and shall not be governed by this Agreement.
5. Termination of Employment Connected with a Change In
Control.
a. Upon Executive’s Separation from Service during the
Change In Control Protection Period, Executive shall receive the
Change In Control Payment if and only if the following
conditions occur:
(i) The Change In Control is consummated;
(ii) Executive is employed in the Executive Incumbent
Position or some substantially equivalent or higher position for
the Company as of the commencement of the Change In Control
Protection Period;
(iii) Executive’s employment is terminated either by
the Company without Cause or by the Executive with Good Reason
such that a Separation from Service occurs;
(iv) Within fifty (53) days after both conditions in
Sections 5(a)(i) and 5(a)(iii), or at the expiration of
twenty-one (21) days following the presentation of the
release, Executive executes a release of all claims, known or
unknown, against the Company, its Affiliates, and their
respective agents in a form satisfactory to the Company similar
to that attached hereto as Exhibit A and does not timely
revoke such release before the expiration of seven days
following his or her execution of the release; and
(v) Within fifty (53) days after both conditions in
Sections 5(a)(i) and 5(a)(iii), Executive reaffirms in
writing in a manner satisfactory to the Company his or her
obligations under Sections 7 and 8 of this Agreement.
b. The “Change In Control Payment” shall
be equal to one and one half (1.5) times the sum of
(i) Executive’s then current annualized base salary;
and (ii) the higher of (x) Executive’s Target
Bonus in effect on the last day of the Fiscal Year that ended
immediately prior to the year in which the Termination Date
occurs, or (y) the average of the cash bonuses paid by the
Company to Executive for the three Fiscal Years preceding the
Termination Date.
c. The Change In Control Payment shall be paid in a single
lump sum to Executive six (6) months and one day after the
Executive’s Termination Date, together with interest at the
rate provided in Section 1274(b)(2)(B) of the Code.
d. Provided that (i) all of the conditions in
Section 5(a) are met, (ii) Executive makes a timely
COBRA election, and (iii) Executive has complied in all
material respects with regard to the obligations of
Sections 7 and 8 of this Agreement, if the Executive timely
remits to the Company the applicable “COBRA” premiums
for such coverage, the Company will continue to provide group
health and dental coverage under the Company’s medical plan
for Executive and his or her dependents during the Restricted
Period; and will reimburse Executive for all premiums paid by
Executive for such continued coverage. Such reimbursements will
be made within thirty (30) days after Executive’s
payment of such premiums (or submission of a request for
reimbursement and satisfactory proof of such payment) but in no
event later than on or before the last day of the
Executive’s tax year following the tax year in which the
expense was incurred. The amount of COBRA premiums and health
and dental
5
expenses eligible for reimbursement during Executive’s tax
year may not affect the COBRA premiums and health and dental
expenses eligible for reimbursement in any other tax year.
e. Certain Further Payments Due Executive
(i) In the event that any amount or benefit paid or
distributed to Executive pursuant to this Agreement
and/or any
amounts or benefits otherwise paid or distributed to Executive
by the Company that are treated as parachute payments under
Section 280G of the Code (such payments, collectively, the
“Covered Payments”), are or become subject to
the tax imposed under Section 4999 of the Code or any
similar tax that may hereafter be imposed (the “Excise
Tax”), the Company will pay to Executive an additional
amount (the “Tax Reimbursement Payment”), such
that the net amount retained by Executive with respect to such
Covered Payments, after deduction of any Excise Tax (as well as
any penalties and interest thereon) on the Covered Payments and
any Federal, state and local income tax, payroll tax, and Excise
Tax on the Tax Reimbursement Payment provided for by this
subsection (e), but before deduction for any Federal, state or
local income or employment tax withholding on such Covered
Payments, will be equal to the amount of the Covered Payments,
together with an amount equal to the product of any deductions
disallowed to Executive for federal, state, or local income tax
purposes because of the inclusion of the Tax Reimbursement
Payment in Executive’s adjusted gross income multiplied by
the highest applicable marginal rate of federal, state, or local
income taxation, respectively, for the calendar year in which
the Tax Reimbursement Payment is to be made. The time for
payment of the Tax Reimbursement Payment is set forth in
subsection (e)(v) below. The Tax Reimbursement Payment is
intended to place the Executive in the same position he would
have been in if the Excise Tax did not apply.
(ii) For purposes of determining whether any of the Covered
Payments will be subject to the Excise Tax and the amount of
such Excise Tax,
(A) such Covered Payments will be treated as
“parachute payments” within the meaning of
Section 280G of the Code, and all “parachute
payments” in excess of the “base amount” (as
defined under Section 280G(b)(3) of the Code) will be
treated as subject to the Excise Tax, unless, and except to the
extent that, in the good faith judgment of a public accounting
firm appointed by the Company or tax counsel selected by such
accounting firm (the “Accountants”), the
Company has a reasonable basis to conclude that such Covered
Payments (in whole or in part) either do not constitute
“parachute payments” or represent reasonable
compensation for personal services actually rendered (within the
meaning of Section 280G(b)(4)(B) of the Code) in excess of
the “base amount,” or such “parachute
payments” are otherwise not subject to such Excise
Tax; and
(B) the value of any non-cash benefits or any deferred
payment or benefit will be determined by the Accountants in
accordance with the principles of Section 280G of the Code.
(iii) For purposes of determining the amount of the Tax
Reimbursement Payment, Executive will be deemed to pay:
(A) Federal income taxes at the highest applicable marginal
rate of Federal income taxation for the calendar year in which
the Tax Reimbursement Payment is to be made; and
(B) any applicable state and local income taxes at the
highest applicable marginal rate of taxation for the calendar
year in which the Tax Reimbursement Payment is to be made, net
of the maximum reduction in Federal income taxes which could be
obtained from the deduction of such state or local taxes if paid
in such year.
(iv) In the event that the Excise Tax amount, if any,
initially determined to be payable to the United States Treasury
Department pursuant to this subsection (e) is later
determined by the Accountants or pursuant to any proceeding or
negotiations with the Internal Revenue Service to exceed the
amount taken into account hereunder at the time the Tax
Reimbursement Payment was initially determined (including, but
not limited to, by reason of any payment the existence or amount
of which could not be determined at the time of the Tax
Reimbursement Payment), the Company will make an additional Tax
Reimbursement Payment, in respect of such excess (including
making a full Tax Reimbursement Payment in the event of an
initial determination that no Excise Tax amount was due) (as
well as any interest or penalty payable with respect to such
payment) at the time specified in subsection (e)(v) below.
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In the event that the Excise Tax is subsequently determined by
the Accountants or pursuant to any proceeding or negotiations
with the Internal Revenue Service to be less than the amount
taken into account under this subsection (e) in calculating
the Tax Reimbursement Payment made, Executive will repay to the
Company, at the time specified in subsection (e)(v) below, the
portion of such prior Tax Reimbursement Payment that would not
have been paid if the amount of the Excise Tax had been
accurately calculated in determining such Tax Reimbursement
Payment, plus interest on the amount of such repayment at the
rate provided in Section 1274(b)(2)(B) of the Code.
Notwithstanding the foregoing, in the event any portion of the
Tax Reimbursement Payment to be refunded to the Company has been
paid to any Federal, state or local tax authority, repayment
thereof will not be required until actual refund or credit of
such portion has been made to Executive, and interest payable to
the Company will not exceed interest received or credited to
Executive by such tax authority for the period it held such
portion. Executive and the Company will mutually agree upon the
course of action to be pursued (and the method of allocating the
expenses thereof) if Executive’s good faith claim for
refund or credit is denied (in whole or in part); provided that
Executive will remain responsible to repay the Company for any
such unrefunded Tax Reimbursement Payments to the extent
Executive ultimately prevails in such claim.
(v) The Tax Reimbursement Payment (or portion thereof)
provided for in this subsection (e) will be paid to
Executive within 5 days after Executive remits the Excise
Tax to the Internal Revenue Service but no later than the end of
the Executive’s tax year following the tax year in which
the Executive remits the Excise Tax to the Internal Revenue
Service. Further, in the event that the initial Tax
Reimbursement Payment was too little and additional Tax
Reimbursement Payments are subsequently determined to be payable
to Executive pursuant to subsection (e)(iv) above, such Tax
Reimbursement Payment or additional Tax Reimbursement Payment
amount will be made by the Company to Executive within
5 days after the date that Executive remits such portion to
the Internal Revenue Service, but no later than the end of the
Executive’s tax year following the tax year in which the
Executive remits such portion to the Internal Revenue Service.
In the event that the amount of the estimated Tax Reimbursement
Payment exceeds the amount subsequently determined to have been
due, subject to the provisions of subsection (e)(iv), such
excess will be payable by Executive to the Company on the fifth
(5th) business day after written demand by the Company for
payment (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code). Company will reimburse
the Executive for any interest, penalties or surcharge that may
be imposed on the Executive in connection with any Excise Tax
(including a reimbursement of any additional taxes imposed as a
result of the reimbursement of any such interest, penalties or
surcharge) within 5 days after payment by the Executive,
but in no event later than on or before the last day of the
Executive’s tax year following the tax year in which the
interest, penalties, surcharge or other taxes are imposed, such
reimbursement obligation shall remain in effect during the
applicable statute of limitations relating to any such interest,
penalties or surcharge (but in no event shall remain in effect
for longer than 10 years), and the amount of expenses
eligible for reimbursement hereunder during Executive’s tax
year will not affect the expenses eligible for reimbursement in
any other tax year.
(vi) The Tax Reimbursement Payment due under this
subsection (e) shall not exceed two million
dollars ($2,000,000).
(vii) If the amount of the Covered Payments is equal to or
less than 110% of the product of 2.99 and Executive’s
applicable “base amount” (as such term is defined for
purposes of Section 4999 of the Code), the Covered Payments
under this Agreement or otherwise shall be reduced by the
minimum amount necessary so that none of the Covered Payments
are subject to the excise tax under Section 4999 of the
Code; provided, however, that this subsection (e)(vii) shall not
apply if, even after all Covered Payments due hereunder are
reduced to zero, the value of the Covered Payments would still
be subject to the excise tax under Section 4999 of the
Code, in which case no reduction of any Covered Payments shall
be made.
f. Notwithstanding any provision of this Agreement to the
contrary, if Executive is a “Specified Employee”
within the meaning of Treasury Regulation
§ 1.409A-1(i) and if any payment under this Agreement
provides for a “deferral of compensation” within the
meaning of Treasury Regulation § 1.409A-1(b) and if
such payment would otherwise occur before the date that is six
(6) months after the Executive’s Termination Date,
then such payment shall be delayed and shall occur on the date
that is six (6) months and one (1) day after the
Termination Date (or, if earlier, the date of the
Executive’s death), together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code.
7
6. Exclusivity of Benefits. Executive
acknowledges that this Agreement supercedes and replaces all
prior agreements or understandings Executive may have with the
Company with respect to compensation or benefits that may become
payable in connection with or as a result of a change in control
of the Company, whether or not such change in control
constitutes a Change In Control, including any provisions
contained in any employment agreement, offer letter or change in
control agreement, except with respect to any Long-Term
Incentive Awards which shall be governed by the terms of the
Long-Term Incentive Award Agreements. This Agreement also
describes all payments and benefits that the Company shall be
obligated to provide to Executive upon Executive’s
Separation from Service during a Change In Control Protection
Period and shall constitute Executive’s agreement to waive
any rights to payment under the Celanese Americas Separation Pay
Plan, any similar or successor plan adopted by the Company, and
any other term of employment contained in any employment
agreement, offer letter, change in control agreement or
otherwise (other than benefits to which
he/she may
be entitled, if any: (i) under any Celanese plan qualified
under Section 401(a) of the Internal Revenue Code,
including the Celanese Americas Retirement Pension Plan and
Celanese Americas Retirement Savings Plan; and (ii) under
the 2008 Celanese Deferred Compensation Plan) to the extent that
the circumstances giving right to such right to payment would
constitute a Separation of Service during a Change In Control
Protection Period.
7. Confidentiality; Intellectual Property.
a. Confidentiality.
(i) Based upon the assurances given by the Executive in
this Agreement, the Company will provide Executive with access
to its Confidential Information. Executive hereby reaffirms that
all Confidential Information received by Executive prior to the
termination of this Agreement is the exclusive property of the
Company and Executive releases any individual claim to the
Confidential Information.
(ii) Executive will not at any time (whether during or
after Executive’s employment with the Company)
(x) retain or use for the benefit, purposes or account of
Executive or any other Person; or (y) disclose, divulge,
reveal, communicate, share, make available, transfer or provide
access to any Person outside the Company (other than its
professional advisers who are bound by confidentiality
obligations), any Confidential Information without the prior
written authorization of the Board.
(iii) Upon termination of Executive’s employment with
the Company for any reason, Executive shall (x) cease and
not thereafter commence use of any Confidential Information or
intellectual property (including without limitation, any patent,
invention, copyright, trade secret, trademark, trade name, logo,
domain name or other source indicator) owned or used by the
Company or its Affiliates; (y) immediately destroy, delete,
or return to the Company, at the Company’s option, all
originals and copies in any form or medium (including memoranda,
books, papers, plans, computer files, letters and other data) in
Executive’s possession or control (including any of the
foregoing stored or located in Executive’s office, home,
laptop or other computer, whether or not Company property) that
contain Confidential Information or otherwise relate to the
business of the Company or its Affiliates, except that Executive
may retain only those portions of any personal notes, notebooks
and diaries that do not contain any Confidential Information;
and (z) notify and fully cooperate with the Company
regarding the delivery or destruction of any other Confidential
Information of which Executive is or becomes aware.
(iv) If Executive has previously entered into any
confidentiality or non-disclosure agreements with any former
employer, Executive hereby represents and warrants that such
confidentiality
and/or
non-disclosure agreement or agreements have been fully disclosed
and provided to the Company prior to commencing employment with
the Company.
b. Intellectual Property.
(i) If Executive has created, invented, designed,
developed, contributed to or improved any works of authorship,
inventions, intellectual property, materials, documents or other
work product (including without limitation, research, reports,
software, databases, systems, applications, presentations,
textual works, content, or audiovisual materials)
(“Works”), either alone or with third
parties, prior to Executive’s employment by the Company,
that are relevant to or implicated by such employment
(“Prior Works”), Executive hereby grants
the Company a perpetual, non-exclusive, royalty-free, worldwide,
assignable, sublicensable license under all rights and
intellectual property rights (including rights under patent,
industrial property, copyright, trademark, trade secret,
8
unfair competition and related laws) therein for all purposes in
connection with the Company’s current and future business.
A list of all such Works as of the date hereof is attached
hereto as Exhibit B.
(ii) If Executive creates, invents, designs, develops,
contributes to or improves any Works, either alone or with third
parties, at any time during Executive’s employment by the
Company and within the scope of such employment
and/or with
the use of any of the Company resources (“Company
Works”), Executive shall promptly and fully
disclose same to the Company and hereby irrevocably assigns,
transfers and conveys, to the maximum extent permitted by
applicable law, all rights and intellectual property rights
therein (including rights under patent, industrial property,
copyright, trademark, trade secret, unfair competition and
related laws) to the Company to the extent ownership of any such
rights does not vest originally in the Company.
(iii) Executive agrees to keep and maintain adequate and
current written records (in the form of notes, sketches,
drawings, and any other form or media requested by the Company)
of all Company Works. The records will be available to and
remain the sole property and intellectual property of the
Company at all times.
(iv) Executive shall take all requested actions and execute
all requested documents (including any licenses or assignments
required by a government contract) at the Company’s expense
(but without further remuneration) to assist the Company in
validating, maintaining, protecting, enforcing, perfecting,
recording, patenting or registering any of the Company’s
rights in the Prior Works and Company Works. If the Company is
unable for any other reason to secure Executive’s signature
on any document for this purpose, then Executive hereby
irrevocably designates and appoints the Company and its duly
authorized officers and agents as Executive’s agent and
attorney in fact, to act for and in Executive’s behalf and
stead to execute any documents and to do all other lawfully
permitted acts in connection with the foregoing.
(v) Executive shall not improperly use for the benefit of,
bring to any premises of, divulge, disclose, communicate,
reveal, transfer or provide access to, or share with the Company
any confidential, proprietary or non-public information or
intellectual property relating to a former employer or other
third party without the prior written permission of such third
party. Executive hereby indemnifies, holds harmless and agrees
to defend the Company and its officers, directors, partners,
employees, agents and representatives from any breach of the
foregoing covenant. Executive shall comply with all relevant
policies and guidelines of the Company, including regarding the
protection of confidential information and intellectual property
and potential conflicts of interest. Executive acknowledges that
the Company may amend any such policies and guidelines from time
to time, and that Executive remains at all times bound by their
most current version.
c. In the event Executive leaves the employ of the Company,
Executive hereby grants consent to notification by the Company
to any subsequent employer about Executive’s rights and
obligations under this Agreement.
8. Non-Competition; Non-Solicitation.
a. Executive acknowledges and recognizes the highly
competitive nature of the businesses of the Company and its
Affiliates and accordingly agrees as follows:
(i) During the Service Term and for the Restricted Period,
Executive will not, whether on Executive’s own behalf or on
behalf of or in conjunction with any Person, directly or
indirectly solicit or assist in soliciting in competition with
the Company or its Affiliates, the business of any customer,
prospective customer, client or prospective client:
(A) with whom Executive had personal contact or dealings on
behalf of the Company or its Affiliates during the one year
period preceding the termination of Executive’s employment;
(B) with whom employees directly or indirectly reporting to
Executive have had personal contact or dealings on behalf of the
Company or its Affiliates during the one-year immediately
preceding the termination of Executive’s employment; or
(C) for whom Executive had direct or indirect
responsibility during the one year period immediately preceding
the termination of Executive’s employment.
9
(ii) During the Restricted Period, Executive will not
directly or indirectly:
(A) engage in any Competitive Business;
(B) 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;
(C) 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
(D) interfere with, or attempt to interfere with, business
relationships (whether formed before, on or after the date of
this Agreement) between the Company or any of its Affiliates and
customers, clients, suppliers partners, members or investors of
the Company or its Affiliates.
(iii) Notwithstanding anything to the contrary in this
Agreement, Executive may directly or indirectly own, solely as
an investment, securities of any Person engaged in the business
of the Company or its Affiliates which are publicly traded on a
national or regional stock exchange or on the over-the-counter
market if Executive (i) is not a controlling Person of, or
a member of a group which controls, such Person and
(ii) does not, directly or indirectly, own 5% or more of
any class of securities of such Person.
(iv) During the Restricted Period, Executive will not,
whether on Executive’s own behalf or on behalf of or in
conjunction with any Person, directly or indirectly:
(A) solicit, interview, encourage, or take any other action
that would tend to influence in any manner any employee of the
Company or its Affiliates to leave the employment of the Company
or its Affiliates (other than as a result of a general
advertisement of employment made by Executive’s subsequent
employer or business, not directed at any such employee); or
(B) hire any such employee who was employed by the Company
or its Affiliates as of the Termination Date or who left the
employment of the Company or its Affiliates coincident with, or
within one year prior to or after, the Termination Date.
(v) During the Restricted Period, Executive will not,
directly or indirectly, solicit or encourage any consultant then
under contract with the Company or its Affiliates to cease to
work with the Company or its Affiliates.
b. It is expressly understood and agreed that although
Executive and the Company consider the restrictions contained in
this Section 8 to be reasonable, if a final judicial
determination is made by a court of competent jurisdiction that
the time or territory or any other restriction contained in this
Agreement is an unenforceable restriction against Executive, the
provisions of this Agreement shall not be rendered void but
shall be deemed amended to apply as to such maximum time and
territory and to such maximum extent as such court may
judicially determine or indicate to be enforceable.
Alternatively, if any court of competent jurisdiction finds that
any restriction contained in this Agreement is unenforceable,
and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of
any of the other restrictions contained herein.
c. Prior to the commencement thereof, Executive will
provide written notice to the Company of any employment or other
activity that would potentially violate the provisions of
Sections 7 or 8 and, if Executive wishes to do so,
Executive may ask the Board to modify or waive the protections
of this Section 8, but nothing in this Agreement shall
limit in any manner the Board’s absolute discretion not to
do so.
9. Enforcement of Promises Concerning the Protection of
the Company’s Confidential Information and Goodwill.
Executive acknowledges and agrees that the
Company’s remedies at law for a breach or threatened breach
of any of the provisions of Section 7 or Section 8
would be inadequate and the Company would suffer irreparable
damages as a result of such breach or threatened breach. In
recognition of this fact, Executive agrees that, in the event of
such a breach in or threatened breach, in addition to any
remedies at law, the Company, without posting any bond, shall be
entitled to obtain equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent
injunction or any other equitable remedy which may then be
available. In addition, and without limiting the Company’s
ability to obtain such equitable relief, Executive shall not be
entitled
10
to any Change In Control Payment if Executive materially
violates the provisions of Sections 7 or 8 and, to the
extent that such payments have already been made, Executive
shall repay all Change In Control Payments immediately upon
demand by the Company.
10. Section 409A Acknowledgement and
Release. Executive understands that payments
under this Agreement are potentially subject to
Section 409A of the Code and that if this Agreement does
not satisfy an exception to Code Section 409A or does not
comply with the requirements of Section 409A and the
applicable guidance thereunder, then Executive may incur adverse
tax consequences under Section 409A. Executive acknowledges
and agrees that (a) Executive is solely responsible for all
obligations arising as a result of the tax consequences
associated with payments under this Agreement including, without
limitation, any taxes, interest or penalties associated with
Section 409A, (b) Executive is not relying upon any
written or oral statement or representation by the Company or
any Affiliate thereof, or any of their respective employees,
directors, officers, attorneys or agents (collectively, the
“Company Parties”) regarding the tax
effects associated with the execution of this Agreement and the
payment under this Agreement, and (c) in deciding to enter
into this Agreement, Executive is relying on his or her own
judgment and the judgment of the professionals of his or her
choice with whom Executive has consulted. Executive hereby
releases, acquits and forever discharges the Company Parties
from all actions, causes of actions, suits, debts, obligations,
liabilities, claims, damages, losses, costs and expenses of any
nature whatsoever, known or unknown, on account of, arising out
of, or in any way related to the tax effects associated with the
execution of this Agreement and any payment hereunder.
11. Miscellaneous.
a. Governing Law; Jurisdiction;
Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas,
without regard to conflicts of laws principles thereof. Any
action concerning or relating to this Agreement shall be filed
only in the federal and state courts sitting in Dallas County,
Texas.
b. Entire Agreement; Amendments. This
Agreement contains the entire understanding of the parties with
respect to any Change In Control or the subject matter of this
Agreement, provided however, that the effects of a change in
control pursuant to the Long-Term Incentive Award Agreements
shall be governed by the terms of such agreements and shall not
be affected by this Agreement.
c. No Waiver. The failure of a party to
insist upon strict adherence to any term of this Agreement, or
any term of any agreement with any other employee, on any
occasion shall not be considered a waiver of such party’s
rights or deprive such party of the right thereafter to insist
upon strict adherence to that term or any other term of this
Agreement.
d. Severability. In the event that any
one or more of the provisions of this Agreement shall be or
become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining
provisions of this Agreement shall not be affected thereby.
e. Assignment. This Agreement, and all of
Executive’s rights and duties hereunder, shall not be
assignable or delegable by Executive. Any purported assignment
or delegation by Executive in violation of the foregoing shall
be null and void ab initio and of no force and effect. This
Agreement may be assigned, in whole or in part, by the Company
to a Person which is an Affiliate or a successor in interest to
all or a substantial part of the business operations of the
Company. Upon such assignment, the rights and obligations of the
Company hereunder shall become the rights and obligations of
such Affiliate or successor Person.
f. Successors; Binding Agreement. This
Agreement shall inure to the benefit of and be binding upon
personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
g. Notice. For the purpose of this
Agreement, notices and all other communications provided for in
the Agreement shall be in writing and shall be deemed to have
been duly given when delivered by hand or overnight courier or
three days after it has been mailed by United States registered
mail, return receipt requested, postage prepaid, addressed to
the respective addresses set forth below in this Agreement, or
to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of
change of address shall be effective only upon receipt.
11
If to the Company:
0000 Xxxx XXX Xxxxxxx
Xxxxxx, XX
00000-0000
Attention: General Counsel
If to Executive:
Executive’s home address as set forth in the personnel
records of the Company
h. Cooperation. Executive shall provide
Executive’s reasonable cooperation in connection with any
action or proceeding (or any appeal from any action or
proceeding) which relates to events occurring during
Executive’s employment hereunder.
i. Withholding Taxes. The Company may
withhold from any amounts payable under this Agreement such
Federal, state and local taxes as may be required to be withheld
pursuant to any applicable law or regulation.
j. Counterparts. This Agreement may be
signed in counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were
upon the same instrument.
k. Survival. The provisions of
Sections 1 and 7 through 9 of this Agreement shall survive
the termination of this Agreement.
12
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
| EXECUTIVE: | Celanese Corporation: | |||||
|
By:
|
/s/ Xxxxxxxxxxx
X. Xxxxxx
|
By: |
/s/ Xxxxx
X. Xxxxx
|
|||
| Xxxxxxxxxxx X. Xxxxxx | ||||||
|
Date:
|
05/09/2008 | Date: | 05/09/2008 | |||
13
EXHIBIT A
FORM OF
GENERAL RELEASE AGREEMENT
AGREEMENT
AND GENERAL RELEASE
Celanese Corporation and its Affiliates (the
“Company”), 0000 Xxxx XXX Xxxxxxx, Xxxxxx, Xxxxx
00000 and Xxxxxxxxxxx X. Xxxxxx, his or her heirs, executors,
administrators, successors, and assigns (“Executive”),
enter into this Agreement and General Release (the
“Release”) and agree as follows:
1. Last Day of Employment (Separation
Date). The last day of employment with the
Company is [Insert Date] (the “Separation Date”).
2. Consideration. In consideration
for signing this Release and compliance with the promises made
herein, Company and Executive agree:
a. Change In Control Payment. The
Company will pay the Change In Control Payment, as defined in
the Change In Control Agreement between the Company and
Executive dated on or about April 1, 2008 (the “CIC
Agreement”)
1
and provide the reimbursements set forth in the CIC Agreement.
Executive agrees that such payments are the exclusive payments
due to Executive arising out of the separation of
Executive’s employment.
b. Unused Vacation. The Company
will pay to Executive wages for prorated unused vacation as of
the Separation Date.
c. Benefits. The Executive shall
be entitled to elect to continue group health and dental
coverage under COBRA and shall be reimbursed for such premiums
as provided in the CIC Agreement. Executive’s rights in any
other employee benefit plans of the Company will be as provided
in the relevant plan documents.
3. No Consideration Absent Execution of this
Agreement. Executive understands and agrees
that he/she
would not receive the consideration specified in Paragraph
“2” above, unless the Executive signs this Agreement
and General Release on the signature page without having revoked
this Release pursuant to paragraph 14 below and the
fulfillment of the promises contained herein.
4. General Release of
Claims. Executive knowingly and voluntarily
releases and forever discharges the Company and its Affiliates,
together with its predecessors, successors and assigns and the
current and former employees, officers, directors and agents
thereof (collectively, the “Released Parties”), of and
from any and all claims, known and unknown, asserted and
unasserted, Executive has or may have as of the date of
execution of this Release to the full extent permitted by law,
in all countries and jurisdictions in which the Released Parties
conduct their respective business, including but not limited to
the United States of America.
5. Executive acknowledges and agrees that
he/she has
been paid all amounts owed to Executive as compensation, whether
in the form of salary, bonus, equity compensation, benefits or
otherwise. The release in Section 4 of this Release
includes, but is not limited to, any alleged violation of the
following, as may be amended or in effect:
(a) any action arising under or relating to any federal or
state statute or local ordinance, such as:
| • | Title VII of the Civil Rights Act of 1964; | |
| • | The Civil Rights Act of 1991; | |
| • | Sections 1981 through 1988 of Title 42 of the United States Code; | |
| • | The Employee Retirement Income Security Act of 1974; | |
| • | The Immigration Reform and Control Act; | |
| • | The Family and Medical Leave Act; | |
| • | The Americans with Disabilities Act of 1990; | |
| • | The Age Discrimination in Employment Act of 1967; | |
| • | The Workers Adjustment and Retraining Notification Act; |
1 All
capitalized terms shall have the same meaning as set forth in
the CIC Agreement, unless otherwise stated.
14
| • | The Occupational Safety and Health Act; | |
| • | The Xxxxxxxx-Xxxxx Act of 2002; | |
| • | The Texas Commission on Human Rights Act; | |
| • | The Texas Minimum Wage Law; | |
| • | Equal Pay Law for Texas; and | |
| • | The Vocational Rehabilitation Act. |
(b) any other national, federal, state, province, or local
civil or human rights law, or any other local, state, province,
national or federal law, regulation or ordinance; or any law,
regulation or ordinance of a foreign country, including but not
limited to the Federal Republic of Germany and the United
Kingdom;
(c) any action under public policy, contract, tort, common
law or equity, including, but not limited to, claims based on
alleged breach of an obligation or duty arising in contract or
tort, such as breach of contract, fraud, quantum meruit,
invasion of privacy, wrongful discharge, defamation, infliction
of emotional distress, assault, battery, malicious prosecution,
false imprisonment, harassment, negligence, gross negligence,
and strict liability;
(d) any claim for lost, unpaid, or unequal wages, salary,
or benefits, including, without limitation, any claim under the
Fair Labor Standards Act, the Employee Retirement Income
Security Act, the Equal Pay Act, the Texas Minimum Wage Law, the
Texas Equal Pay Law, or any other local, state, or federal
statute concerning classifications, wages, salary, or benefits,
including calculations and deductions relating to same, as well
as the employment, labor and benefits laws and regulations in
all countries in addition to the United States of America,
including but not limited to the United Kingdom and the Federal
Republic of Germany; and
(e) any other claim regardless of the forum in which it
might be brought, if any, which Executive has, might have, or
might claim to have against any of the Released Parties, for any
and all injuries, harm, damages, wages, benefits, salary,
reimbursements, penalties, costs, losses, expenses,
attorneys’ fees,
and/or
liability or other detriment, if any, whatsoever and whenever
incurred, suffered, or claimed by the Executive.
6. Affirmations. Executive affirms
that he/she
has not filed, caused to be filed, or presently is a party to
any claim, complaint, or action against the Released Parties in
any forum or form, provided that this Release shall not affect
the rights or responsibilities of the Equal Employment
Opportunity Commission, or any other federal, state, or local
authority with similar responsibilities (collectively, the
“Commission”) to enforce any employment discrimination
law, and that this Release shall not shall affect the right of
Executive to file a charge of discrimination with the Commission
or participate in any investigation. However, Executive waives
any right to participate in any payment or benefit arising from
any such charge, claim, or investigation.
Executive further affirms that
he/she has
reported all hours worked as of the date of this Release and has
been paid
and/or has
received all leave (paid or unpaid), compensation, wages,
bonuses, commissions,
and/or
benefits to which
he/she may
be entitled and that no other leave (paid or unpaid),
compensation, wages, bonuses, commissions
and/or
benefits are due to him/her, except as provided specifically in
this Release. Executive furthermore affirms that
he/she has
no known workplace injuries or occupational diseases and has
been provided
and/or has
not been denied any leave requested under the Family and Medical
Leave Act.
Executive reaffirms that he or she will comply fully with
Sections 7 through 9 of the CIC Agreement and that, if he
or she violates such provisions, all consideration paid
hereunder will be immediately due and payable back to the
Company.
7. Governing Law and
Interpretation. This Release shall be
governed and conformed in accordance with the laws of the State
of Texas, without regard to its conflict of laws provision. In
the event the Executive or Company breaches any provision of
this Release, Executive and Company affirm that either may
institute an action to specifically enforce any term or terms of
this Release. Should any provision of this Release be declared
illegal or unenforceable by any court of competent jurisdiction
and cannot be modified to be enforceable, excluding the general
release language, such provision shall immediately become null
and void, leaving the remainder of this Release in full force
and effect.
15
8. Non-admission of
Wrongdoing. The parties agree that neither
this Release nor the furnishing of the consideration for this
Release shall be deemed or construed at anytime for any purpose
as an admission by Company of any liability or unlawful conduct
of any kind.
9. Neutral Reference. If contacted
by another organization, the Company will only provide dates of
employment and position.
10. Non-Disparagement. Executive
agrees not to disparage, or make disparaging remarks or send any
disparaging communications concerning, the Company, its
reputation, its business,
and/or its
directors, officers and managers. Likewise the Company’s
senior management agrees not to disparage, or make any
disparaging remark or send any disparaging communication
concerning Executive, his reputation
and/or his
business.
11. Future Cooperation after Separation
Date. After separation, Executive agrees to
make reasonable efforts to assist Company including but not
limited to: assisting with transition duties, assisting with
issues that arise after separation of employment and assisting
with the defense or prosecution of any lawsuit or claim. This
includes but is not limited to providing deposition testimony,
attending hearings and testifying on behalf of the Company. The
Company will reimburse Executive for reasonable time and
expenses in connection with any future cooperation after the
separation date. Time and expenses can include loss of pay or
using vacation time at a future employer. The Company shall
reimburse the Executive within 30 days of remittance by
Executive to the Company of such time and expenses incurred, but
in no event later than the end of the Executive’s tax year
following the tax year in which the Executive incurs such time
and expenses and such reimbursement obligation shall remain in
effect for five years and the amount of expenses eligible for
reimbursement hereunder during Executive’s tax year will
not affect the expenses eligible for reimbursement in any other
tax year.
12. Injunctive Relief. Executive
agrees and acknowledges that the Company will be irreparably
harmed by any breach, or threatened breach by him/her of this
Agreement and that monetary damages would be grossly inadequate.
Accordingly,
he/she
agrees that in the event of a breach, or threatened breach by
him/her of this Agreement the Company shall be entitled to apply
for immediate injunctive or other preliminary or equitable
relief, as appropriate, in addition to all other remedies at law
or equity.
13. Review Period. Executive is
hereby advised
he/she has
until [Insert Date], twenty-one (21) calendar days, to
review this Release and to consult with an attorney prior to
execution of this Release. Executive agrees that any
modifications, material or otherwise, made to this Release do
not restart or affect in any manner the original twenty-one
(21) calendar day consideration period.
14. Revocation Period and Effective
Date. In the event that Executive elects to
sign and return to the Company a copy of this Agreement,
he/she has a
period of seven (7) days (the “Revocation
Period”) following the date of such execution to revoke
this Release, after which time this agreement will become
effective (the “Effective Date”) if not previously
revoked. In order for the revocation to be effective, written
notice must be received by the Company no later than close of
business on the seventh day after the Executive signs this
Release at which time the Revocation Period shall expire.
15. Amendment. This Release may
not be modified, altered or changed except upon express written
consent of both parties wherein specific reference is made to
this Release.
16. Entire Agreement. This Release
sets forth the entire agreement between the parties hereto, and
fully supersedes any prior obligation of the Company to the
Executive. Executive acknowledges that
he/she has
not relied on any representations, promises, or agreements of
any kind made to him/her in connection with
his/her
decision to accept this Release, except for those set forth in
this Release.
17. HAVING ELECTED TO EXECUTE THIS AGREEMENT AND GENERAL
RELEASE, TO FULFILL THE PROMISES AND TO RECEIVE THE SUMS AND
BENEFITS IN SECTION 2 ABOVE, EXECUTIVE FREELY AND
KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS RELEASE
INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS HE/SHE HAS OR
MIGHT HAVE AGAINST COMPANY.
16
IN WITNESS WHEREOF, the parties hereto knowingly and voluntarily
executed this Release as of the date set forth below.
| EXECUTIVE: | Celanese Corporation: | |
|
By:
|
By:
|
|
|
Xxxxxxxxxxx X. Xxxxxx
|
||
|
Date:
|
Date:
|
17
EXHIBIT B
[List
of Works]
18
