AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.1
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the “Agreement”) dated as of
July 26, 2007 (the “Effective Date”) by and
between Celanese Corporation (the “Company”) and Xxxx
X. Xxxxxxxxx III (the “Executive”).
The Company desires to employ Executive and to enter into an
agreement embodying the terms of such employment;
Executive desires to accept such employment and enter into such
an agreement;
In consideration of the premises and mutual covenants herein and
for other good and valuable consideration, the parties agree as
follows:
1. Term of Employment. Subject to the provisions of
Section 7 of this Agreement, Executive shall be employed by
the Company for a period commencing as of the Effective Date and
ending on March 31, 2010 (the “Employment Term”)
on the terms and subject to the conditions set forth in this
Agreement. A termination of Executive’s employment with the
Company as a result of expiration of the Employment Term shall
be referred to as a “Non-Renewal” of this Agreement.
2. Position.
a. During the Employment Term, Executive shall serve as the
Company’s Executive Vice President and President, Acetyls
Intermediates and Celanese Asia. In such position, Executive
shall have such duties and authority as shall be determined from
time to time by the Board of Directors of the Company (the
“Board”) and the Chief Executive Officer of the
Company.
b. During the Employment Term, Executive will devote
Executive’s full business time and best efforts to the
performance of Executive’s duties hereunder and will not
engage in any other business, profession or occupation for
compensation or otherwise which would conflict or interfere with
the rendition of such services either directly or indirectly,
without the prior written consent of the Board; provided that
nothing herein shall preclude Executive, (i) subject to the
prior approval of the Board, from accepting appointment to or
continue to serve on any board of directors or trustees of any
business corporation or any charitable organization or
(ii) from participating in charitable activities or
managing personal investments; provided in each case, and in the
aggregate, that such activities do not conflict or interfere
with the performance of Executive’s duties hereunder or
conflict with Section 8.
3. Base Salary. During the Employment Term, the Company
shall pay Executive a base salary at the annual rate of
$675,000, payable in regular installments in accordance with the
Company’s usual payment practices. Executive shall be
entitled to such increases (but no decreases) in
Executive’s base salary, if any, as may be determined from
time to time in the sole discretion of the Board.
Executive’s annual base salary, as in effect from time to
time, is hereinafter referred to as the “Base Salary”.
4. Annual Bonus. With respect to each full calendar year
during the Employment Term, Executive shall be eligible to earn
an annual bonus award (an “Annual Bonus”) targeted at
eighty percent (80%) of Executive’s Base Salary (the
“Target”), payout to range from 0-200% of Target,
based upon the achievement of performance targets established by
the Board.
5. Employee Benefits; NQSOs. During the Employment Term,
Executive shall be entitled to participate in the Company’s
compensation and employee benefit plans (other than annual bonus
and severance plans) as in effect from time to time
(collectively Employee Benefits”), on the same basis as
those benefits are generally made available to other senior
executives of the Company. Executive shall also receive certain
relocation and other related benefits pursuant to the Celanese
International Long-Term Assignment Agreement (“CILA
Agreement”) to be entered into between the Company and
Executive.
On July 25, 2007, the Company granted Executive 120,000
non-qualified stock options (the “NQSO Grant”) at the
fair market value on the date of grant. Executive and the
Company shall enter into a Nonqualified Stock Option Agreement
which will set forth the terms of the NQSO Grant, including that
a percentage of the NQSO
Grant will vest on each of the following dates in accordance
with the following schedule:
January 1, 2009: 10%
January 1, 2010: 30%
January 1, 2011: 30%
January 1, 2012: 30%
6. Business Expenses. During the Employment Term,
reasonable business expenses incurred by Executive in the
performance of Executive’s duties hereunder shall be
reimbursed by the Company in accordance with Company policies
and the CILA Agreement.
7. Termination. The Employment Term and Executive’s
employment hereunder may be terminated by either party at any
time for any reason; provided that Executive will be required to
give the Company at least 30 days advance written notice of
any resignation of Executive’s employment. Notwithstanding
any other provision of this Agreement, the provisions of this
Section 7 shall exclusively govern Executive’s rights
upon termination of employment with the Company and its
affiliates; provided, however, that the terms and conditions of
the other written agreements between the Company and Executive
shall be followed insofar as they provide supplemental rights or
privileges with respect to equity or deferred compensation.
a. By the Company For Cause or By Executive Resignation
Without Good Reason.
(i) The Employment Term and Executive’s employment
hereunder may be terminated by the Company for Cause (as defined
below) and shall terminate automatically upon Executive’s
resignation without Good Reason (as defined in
Section 7(c)).
(ii) For purposes of this Agreement, “Cause”
shall mean (A) Executive’s willful failure to perform
Executive’s duties hereunder (other than as a result of
total or partial incapacity due to physical or mental illness)
for a period of 30 days following written notice by the
Company to Executive of such failure, (B) conviction of, or
a plea of nolo contendere to, (x) a felony (other than
traffic-related) under the laws of the United States or any
state thereof or any similar criminal act in a jurisdiction
outside the United States or (y) a crime involving moral
turpitude, (C) Executive’s willful malfeasance or
willful misconduct which is demonstrably injurious to the
Company, (D) any act of fraud by Executive or
(E) Executive’s breach of the provisions of
Sections 8 or 9 of this agreement.
(iii) If Executive’s employment is terminated by the
Company for Cause, or if Executive resigns without Good Reason,
Executive shall be entitled to receive:
(A) the Base Salary through the date of termination;
(B) any Annual Bonus earned but unpaid as of the date of
termination for any previously completed fiscal year;
(C) reimbursement for any unreimbursed business expenses
properly incurred by Executive in accordance with Company policy
and CILA Agreement prior to the date of Executive’s
termination; and
(D) such Employee Benefits, if any, as to which Executive
may be entitled under the employee benefit plans of the Company
or its affiliates (the amounts described in clauses (A)
through (D) hereof being referred to as the “Accrued
Rights”).
Following such termination of Executive’s employment by the
Company for Cause or resignation by Executive without Good
Reason, except as set forth in this Section (a)(iii), Executive
shall have no further rights to any compensation or any other
benefits under this Agreement.
b. Disability or Death.
(i) The Employment Term and Executive’s employment
hereunder shall terminate upon Executive’s death and may be
terminated by the Company if Executive becomes physically or
mentally incapacitated and is therefore unable for a period of
six (6) consecutive months or for an aggregate of nine
(9) months in any twenty-four (24) consecutive month
period to perform Executive’s duties (such incapacity is
hereinafter referred to as “Disability”).
(ii) Upon termination of Executive’s employment
hereunder for either Disability or death, Executive or
Executive’s estate (as the case may be) shall be entitled
to receive the Accrued Rights. Following Executive’s
termination of employment due to death or Disability, except as
set forth in this Section 7(b)(ii), Executive shall have no
further rights to any compensation or any other benefits under
this Agreement.
c. By the Company Without Cause or Resignation by Executive
for Good Reason.
(i) The Employment Term and Executive’s employment
hereunder may be terminated by the Company without Cause or by
Executive’s resignation for Good Reason; provided, however,
that Non-Renewal of this Agreement shall be treated as a
termination of employment during the Employment Term without
Cause except in the event of (a) Cause; or
(b) Executive’s rejection of the offer of continued
employment on terms and conditions not materially less
advantageous to Executive as those in effect immediately prior
to the Non-Renewal of this Agreement (a “Non-Renewal
without Cause”). In addition, a Non-Renewal without Cause
shall be treated as a Good Termination for purposes of the
Company’s Deferred Compensation Plan, 2004 Stock Incentive
Plan or any other plans or programs of the Company that employs
a Good Termination definition or employs any comparable concept.
(ii) For purposes of this Agreement, “Good
Reason” shall mean (A) any reduction in
Executive’s Base Salary or Annual Bonus opportunity or
(B) any substantial diminution in Executive’s position
or duties, adverse change in reporting lines or assignment of
duties materially inconsistent with Executive’s position
(other than in connection with an increase in responsibility or
a promotion); provided that the events described in
clauses (A) or (B) of this Section 7(c)(ii) shall
constitute Good Reason only if the Company fails to cure such
event within 30 days after receipt from Executive of
written notice of the event which constitutes Good Reason.
(iii) If Executive’s employment is terminated by the
Company without Cause (other than by reason of death or
Disability) or if Executive resigns for Good Reason, Executive
shall be entitled to receive:
(A) the Accrued Rights;
(B) a pro rata portion of any Annual Bonus, if any, that
Executive would have been entitled to receive pursuant to
Section 4 hereof in such year based upon the percentage of
the fiscal year that shall have elapsed through the date of
Executive’s termination of employment, payable when such
Annual Bonus would have otherwise been payable had
Executive’s employment not terminated, and
(C) subject to Executive’s continued compliance with
the provisions of Sections 8 and 9, (x) continued
payment of the Base Salary until twelve months after the date of
such termination and (y) payment of Executive’s Target
Annual Bonus for the year of termination, payable over the
twelve month period after the date of such termination, in
accordance with the Company’s usual payroll practice;
provided that the aggregate amount described in this
clause (C) shall be reduced by the present value of any
other cash severance or termination benefits payable to
Executive under any other plans, programs or arrangements of the
Company or its affiliates.
Following Executive’s termination of employment by the
Company without Cause (other than by reason of Executive’s
death or Disability) or by Executive’s resignation for Good
Reason, except as set forth in this Section 7(c)(iii),
Executive shall have no further rights to any compensation or
any other benefits under this Agreement.
d. Continued Employment Beyond the Expiration of the
Employment Term. Unless the parties otherwise agree in writing,
continuation of Executive’s employment with the Company
beyond the expiration of the Employment Term shall be deemed an
employment at-will and shall not be deemed to extend any of the
provisions of this Agreement and Executive’s employment may
thereafter be terminated at will by either Executive or the
Company; provided that the provisions of Sections 8, 9 and
10 of this Agreement shall survive any termination of this
Agreement or Executive’s termination of employment
hereunder.
e. Notice of Termination. Any purported termination of
employment by the Company or by Executive (other than due to
Executive’s death) shall be communicated by written Notice
of Termination to the other party hereto in accordance with
Section 11(g) hereof. For purposes of this Agreement, a
“Notice of Termination” shall mean a notice which
shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of employment under the provision so indicated.
f. Board/Committee Resignation. Upon termination of
Executive’s employment for any reason, Executive agrees to
resign, as of the date of such termination and to the extent
applicable, from the Board (and any
committees thereof) and the Board of Directors (and any
committees thereof) of any of the Company’s affiliates.
8. Non-Competition.
a. Executive acknowledges and recognizes the highly
competitive nature of the businesses of the Company and its
affiliates and accordingly agrees as follows:
(1) During the Employment Term and, for a period of one
year following the date Executive ceases to be employed by the
Company (the “Restricted Period”), Executive will not,
whether on Executive’s own behalf or on behalf of or in
conjunction with any person, firm, partnership, joint venture,
association, corporation or other business organization, entity
or enterprise whatsoever (“Person”), directly or
indirectly solicit or assist in soliciting in competition with
the Company, the business of any client or prospective client:
(i) with whom Executive had personal contact or dealings on
behalf of the Company during the one year period preceding
Executive’s termination of employment;
(ii) with whom employees reporting to Executive have had
personal contact or dealings on behalf of the Company during the
one-year immediately preceding the Executive’s termination
of employment; or
(iii) for whom Executive had direct or indirect
responsibility during the one-year period immediately preceding
Executive’s termination of employment.
(2) During the Restricted Period, Executive will not
directly or indirectly:
(i) engage in any business that competes with the business
of the Company or its affiliates (including, without limitation,
businesses which the Company or its affiliates have specific
plans to conduct in the future and as to which Executive is
aware of such planning) (a “Competitive Business”);
(ii) enter the employ of, or render any services to, any
Person (or any division or controlled or controlling affiliate
of any Person) who or which engages in a Competitive Business;
(iii) acquire a financial interest in, or otherwise become
actively involved with, any Competitive Business, directly or
indirectly, as an individual, partner, shareholder, officer,
director, principal, agent, trustee or consultant; or
(iv) interfere with, or attempt to interfere with, business
relationships (whether formed before, on or after the date of
this Agreement) between the Company or its affiliates and
customers, clients, supplier’s partners, members or
investors of the Company or its affiliates.
(3) Notwithstanding anything to the contrary in this
Agreement, Executive may directly or indirectly own, solely as
an investment, securities of any Person engaged in the business
of the Company or its affiliates which are publicly traded on a
national or regional stock exchange or on the over-the-counter
market if Executive (i) is not a controlling person of, or
a member of a group which controls, such person and
(ii) does not, directly or indirectly, own 5% or more of
any class of securities of such Person.
(4) During the Restricted Period, Executive will not,
whether on Executive’s own behalf or on behalf of or in
conjunction with any Person, directly or indirectly:
(i) solicit or encourage any employee of the Company or its
affiliates to leave the employment of the Company or its
affiliates (other than as a result of a general advertisement of
employment made by Executive’s subsequent employer or
business, not directed at any such employee); or
(ii) hire any such employee who was employed by the Company
or its affiliates as of the date of Executive’s termination
of employment with the Company or who left the employment of the
Company or its affiliates coincident with, or within one year
prior to or after, the termination of Executive’s
employment with the Company.
(5) During the Restricted Period, Executive will not,
directly or indirectly, solicit or encourage to cease to work
with the Company or its affiliates any consultant then under
contract with the Company or its affiliates.
b. It is expressly understood and agreed that although
Executive and the Company consider the restrictions contained in
this Section 8 to be reasonable, if a final judicial
determination is made by a court of competent jurisdiction that
the time or territory or any other restriction contained in this
Agreement is an unenforceable restriction against Executive, the
provisions of this Agreement shall not be rendered void but
shall be deemed amended to apply as to such maximum time and
territory and to such maximum extent as such court may
judicially determine or indicate to be enforceable.
Alternatively, if any court of competent jurisdiction finds that
any restriction contained in this Agreement is unenforceable,
and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of
any of the other restrictions contained herein.
9. Confidentiality: Intellectual Property.
a. Confidentiality.
(i) Executive will not at any time (whether during or after
Executive’s employment with the Company) (x) retain or
use for the benefit, purposes or account of Executive or any
other Person; or (y) disclose, divulge, reveal,
communicate, share, transfer or provide access to any Person
outside the Company (other than its professional advisers who
are bound by confidentiality obligations), any non-public,
proprietary or confidential information — including
without limitation trade secrets, know-how, research and
development, software, databases, inventions, processes,
formulae, technology, designs and other intellectual property,
information concerning finances, investments, profits, pricing,
costs, products, services, vendors, customers, clients,
partners, investors, personnel, compensation, recruiting,
training, advertising, sales, marketing, promotions, government
and regulatory activities and
approvals — concerning the past, current or
future business, activities and operations of the Company, its
subsidiaries or affiliates
and/or any
third party that has disclosed or provided any of same to the
Company on a confidential basis (“Confidential
Information”) without the prior written authorization of
the Board.
(ii) “Confidential Information” shall not include
any information that is (a) generally known to the industry
or the public other than as a result of Executive’s breach
of this covenant; (b) made legitimately available to
Executive by a third party without breach of any confidentiality
obligation; or (c) required by law to be disclosed; provide
that Executive shall give prompt written notice to the Company
of such requirement, disclose no more information than is so
required, and cooperate with any attempts by the Company to
obtain a protective order or similar treatment.
(iii) Upon termination of Executive’s employment with
the Company for any reason, Executive shall (x) cease and
not thereafter commence use of any Confidential Information or
intellectual property (including without limitation, any patent,
invention, copyright, trade secret, trademark, trade name, logo,
domain name or other source indicator) owned or used by the
Company, its subsidiaries or affiliates; (y) immediately
destroy, delete, or return to the Company, at the Company’s
option, all originals and copies in any form or medium
(including memoranda, books, papers, plans, computer files,
letters and other data) in Executive’s possession or
control (including any of the foregoing stored or located in
Executive’s office, home, laptop or other computer, whether
or not Company property) that contain Confidential Information
or otherwise relate to the business of the Company, its
affiliates and subsidiaries, except that Executive may retain
only those portions of any personal notes, notebooks and diaries
that do not contain any Confidential Information; and
(z) notify and fully cooperate with the Company regarding
the delivery or destruction of any other Confidential
Information of which Executive is or becomes aware.
b. Intellectual Property.
(i) If Executive has created, invented, designed,
developed, contributed to or improved any works of authorship,
inventions, intellectual property, materials, documents or other
work product (including without limitation, research, reports,
software, databases, systems, applications, presentations,
textual works, content, or audiovisual materials)
(“Works”), either alone or with third parties, prior
to Executive’s employment by the Company, that are relevant
to or implicated by such employment (“Prior Works”),
Executive hereby grants the Company a perpetual, non-exclusive,
royalty-free, worldwide, assignable, sublicensable license under
all rights and intellectual property rights (including rights
under patent, industrial property, copyright, trademark, trade
secret, unfair competition and related laws) therein for all
purposes in connection with the Company’s current and
future business. A list of all such Works as of the date hereof
is attached hereto as Exhibit A.
(ii) If Executive creates, invents, designs, develops,
contributes to or improves any Works, either alone or with third
parties, at any time during Executive’s employment by the
Company and within the scope of such employment
and/or with
the use of any the Company resources (“Company
Works”), Executive shall promptly and fully disclose same
to the Company and hereby irrevocably assigns, transfers and
conveys, to the maximum extent permitted by applicable law, all
rights and intellectual property rights therein (including
rights under patent, industrial property, copyright, trademark,
trade secret, unfair competition and related laws) to the
Company to the extent ownership of any such rights does not vest
originally in the Company.
(iii) Executive agrees to keep and maintain adequate and
current written records (in the form of notes, sketches,
drawings, and any other form or media requested by the Company)
of all Company Works. The records will be available to and
remain the sole property and intellectual property of the
Company at all times.
(iv) Executive shall take all requested actions and execute
all requested documents (including any licenses or assignments
required by a government contract) at the Company’s expense
(but without further remuneration) to assist the Company in
validating, maintaining, protecting, enforcing, perfecting,
recording, patenting or registering any of the Company’s
rights in the Prior Works and Company Works. If the Company is
unable for any other reason to secure Executive’s signature
on any document for this purpose, then Executive hereby
irrevocably designates and appoints the Company and its duly
authorized officers and agents as Executive’s agent and
attorney in fact, to act for and in Executive’s behalf and
stead to execute any documents and to do all other lawfully
permitted acts in connection with the foregoing.
(v) Executive shall not improperly use for the benefit of,
bring to any premises of, divulge, disclose, communicate,
reveal, transfer or provide access to, or share with the Company
any confidential, proprietary or non-public information or
intellectual property relating to a former employer or other
third party without the prior written permission of such third
party. Executive hereby indemnifies, holds harmless and agrees
to defend the Company and its officers, directors, partners,
employees, agents and representatives from any breach of the
foregoing covenant. Executive shall comply with all relevant
policies and guidelines of the Company, including regarding the
protection of confidential information and intellectual property
and potential conflicts of interest. Executive acknowledges that
the Company may amend any such policies and guidelines from time
to time, and that Executive remains at all times bound by their
most current version.
(vi) The provisions of Section 9 shall survive the
termination of Executive’s employment for any reason.
10. Specific Performance. Executive acknowledges and agrees
that the Company’s remedies at law for a breach or
threatened breach of any of the provisions of Section 8 or
Section 9 would be inadequate and the Company would suffer
irreparable damages as a result of such breach or threatened
breach. In recognition of this fact, Executive agrees that, in
the event of such a breach or threatened breach, in addition to
any remedies at law, the Company, without posting any bond,
shall be entitled to cease making any payments or providing any
benefit otherwise required by this Agreement and obtain
equitable relief in the form of specific performance, temporary
restraining order, temporary or permanent injunction or any
other equitable remedy which may then be available.
11. Miscellaneous.
a. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York,
without regard to conflicts of laws principles thereof.
b. Entire Agreement/Amendments. This Agreement contains the
entire understanding of the parties with respect to the
employment of Executive by the Company. Other than as
specifically set forth in other written agreements, between the
parties, there are no restrictions, agreements, promises,
warranties, covenants or undertakings between the parties with
respect to the subject matter herein other than those expressly
set forth herein. This Agreement may not be altered, modified,
or amended except by written instrument signed by the parties
hereto.
c. No Waiver. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall
not be considered a waiver of such party’s rights or
deprive such party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
d. Severability. In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal
or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions of this Agreement
shall not be affected thereby.
e. Assignment. This Agreement, and all of Executive’s
rights and duties hereunder, shall not be assignable or
delegable by Executive. Any purported assignment or delegation
by Executive in violation of the foregoing shall be null and
void ab initio and of no force and effect. This Agreement may be
assigned by the Company to a person or entity which is an
affiliate or successor in interest to substantially all of the
business operations of the Company. Upon such assignment, the
rights and obligations of the Company hereunder shall become the
rights and obligations of such affiliate or successor person or
entity.
f. Successor; Binding Agreement. This Agreement shall inure
to the benefit of and be binding upon personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
g. Notice. For the purpose of this Agreement, notices and
all other communications provided for in the Agreement shall be
in writing and shall be deemed to have been duly given when
delivered by hand or overnight courier or three days after it
has been mailed by United States registered mail, return receipt
requested, postage prepaid, addressed to the respective
addresses set forth below in this Agreement, or to such other
address as either party may have furnished to the other in
writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
| If to the Company: | 0000 Xxxx XXX Xxxxxxx |
Xxxxxx, XX
00000-0000
Attention: General Counsel
| If to Executive: | To the most recent address of Executive set forth in the |
personnel records of the Company.
h. Prior Agreements. This Agreement supersedes all prior
agreements and understandings (including verbal agreements)
between Executive and the Company
and/or its
affiliates regarding the terms and conditions of
Executive’s employment with the Company
and/or its
affiliates, including, without limitation, the offer letter
between Executive and the Company (or its predecessor) dated as
of the Effective Date.
i. Cooperation. Executive shall provide Executive’s
reasonable cooperation in connection with any action or
proceeding (or any appeal from any action or proceeding) which
relates to events occurring during the Executive’s
employment hereunder. This provision shall survive any
termination of this Agreement.
j. Withholding Taxes. The Company may withhold from any
amounts payable under this Agreement such Federal, state and
local taxes as may be required to be withheld pursuant to any
applicable law or regulation.
k. Counterparts. This Agreement may be signed in
counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the
same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
|
CELANESE CORPORATION
|
Xxxx X. Xxxxxxxxx III | |
|
/s/ Xxxxx
X. Xxxxx By: Xxxxx X. Xxxxx Title: Vice President, Human Resources |
/s/ Xxxx
X. Xxxxxxxxx III |
