AGREEMENT
Exhibit
10.22
This
Agreement (“Agreement”) is made as of the 22nd day of January, 2008,
between Lyondell Chemical
Company, a Delaware corporation (“Lyondell”), and _Morris Gelb__ (the
“Executive”), each a “Party” and collectively the “Parties.”
WHEREAS,
an Agreement and Plan of Merger dated July 16, 2007, was entered into by and
among Lyondell, Basell AF (“Basell”), a Luxembourg company owned by Access
Industries, Inc. (“Access”), and BIL Acquisition Holdings Limited (“BIL”),
whereby BIL will merge with and into Lyondell and Lyondell will survive as a
wholly-owned subsidiary of Basell upon the closing of the merger (the “Closing
Date”); and
WHEREAS,
Lyondell sponsors and maintains the Lyondell Chemical Company Executive
Severance Pay Plan (the “ESPP”) under which severance benefit payments are made
to certain executives upon employment termination within a specified period of
time following a change in control; and
WHEREAS,
the Executive’s position with Lyondell prior to the Closing Date was in the
capacity of ___EVP
& COO___________; and
WHEREAS,
the Executive has been offered continued employment with Lyondell following the
Closing Date in the capacity of _EVP, Office of the
CEO, which is anticipated to continue for up to ___2 years_____
following the Closing Date.
NOW
THEREFORE, for and in consideration of the mutual promises, covenants, and
obligations contained herein, the Parties agree as follows:
1. Acknowledgment of
Rights. Lyondell acknowledges that, as a result of the change
in the Executive’s position from _EVP & COO________
to the position of EVP, Office of the
CEO following the Closing Date, the Executive would have grounds for a
Constructive Termination for Good Reason under the terms of the ESPP and would
thereby be eligible for the severance benefits provided to Level __1_ Participants under
the terms of Section 4 of the ESPP in the event of a termination of employment
within ninety days following the Closing Date.
2. Separation
Benefits. In order to induce the Executive to continue
to serve Lyondell following the Closing Date in the position of _EVP, Office of the
CEO, Lyondell agrees that in the event of the Executive’s termination of
employment for any reason, without limitation, during the _2 year_____ period
beginning on the
Closing Date, Lyondell will provide the Executive the severance benefits set
forth in Section 4(a)(i), the second paragraph of Section 4(c), 4(d),
4(e) and 4(f) of the ESPP (the “Severance Benefits”). The Executive
hereby waives any right to eligibility for participation in the ESPP, and agrees
that the terms of this Agreement, including any provisions of the ESPP
incorporated herein by reference, will be controlling.
3. Employment
Period. While it is anticipated that the Executive will remain
employed with Lyondell for the _2 year___ period
beginning on the Closing Date, the Parties acknowledge that the Executive is not
obligated to remain employed with Lyondell and Lyondell is not
obligated to continue the Executive’s employment for any specified
period.
4. Time of
Payment. Any cash payment under this Agreement shall be paid
to the Executive within thirty (30) days of the Executive’s employment
termination.
5. No Duty to
Mitigate. Severance Benefit entitlement shall not be governed
by any duty to mitigate the Executive’s damages by seeking further employment
nor offset by any compensation which the Executive may receive from future
employment.
6. Company Benefit
Agreements. The specific arrangements referred to in this
Agreement are not intended (i) to exclude or limit the Executive’s
participation in other benefit agreements or programs in which the Executive
currently participates or may participate including, without limit, retiree
benefits, or benefits which are available to executive personnel generally in
the same class or category as the Executive or (ii) to preclude or limit
other compensation or benefits as may be authorized by Lyondell from time to
time.
7. Payment Obligations
Absolute. The obligation to pay or provide, or to cause to be
paid or provided, to the Executive the amounts and benefits and to make the
arrangements provided in this Agreement shall be absolute and unconditional and
shall not be affected by any circumstances (including, without limit, any claim,
counterclaim, recoupment, defense or other right, which Lyondell may have
against the Executive or anyone else). All amounts payable by or on
behalf of Lyondell shall be paid without notice or demand. Each and
every payment made by or on behalf of Lyondell shall be final and Lyondell and
its subsidiaries or affiliates, for any reason whatsoever, shall not seek to
recover all or any part of that payment from the Executive or from whomever
shall be entitled to it. In no event shall an asserted violation of
any Agreement provision constitute a basis to defer or withhold any amount
payable to, or on behalf of, the Executive.
8. Cooperation. Following
termination, the Executive will furnish information and render assistance and
cooperation as reasonably requested in connection with any litigation or legal
proceedings concerning Lyondell or any of its Subsidiaries (other than any legal
proceedings arising out of or concerning the Executive’s employment or the
Executive’s termination). Lyondell will pay or reimburse the
Executive for reasonable expenses in connection with this
cooperation.
9. Release of
Liability. The Executive, as a further eligibility condition
for Severance Benefits under Section 2, must execute and deliver to
Lyondell a Waiver and Release in the form attached hereto as Exhibit A-1 or A-2,
as applicable. The Executive is advised to discuss the Waiver and
Release with his lawyer.
10. Arbitration of
Disagreements. Any dispute, controversy or claim arising out
of or relating to Agreement obligations shall be settled by final and binding
arbitration according to the American Arbitration Association Employment Dispute
Resolution Rules. The arbitrator shall be selected by mutual
agreement of the Parties, if possible. If the Parties fail to reach
agreement upon appointment of an arbitrator within thirty (30) days after one
party receives the other party’s notice of desire to arbitrate, the arbitrator
shall be selected from a panel or panels submitted by the American Arbitration
Association (the “AAA”). The selection process to be used is set
forth in the AAA Employment Dispute Resolution Rules, but if the Parties fail to
select an arbitrator from one or more panels, AAA shall not have the power to
appoint an arbitrator, but shall continue to submit additional panels until an
arbitrator has been selected. All fees and expenses of the
arbitration, including a transcript if requested, will be borne by the Parties
equally.
11. Payment to
Estate. The Parties agree that, in the event of the
Executive’s termination of employment with Lyondell due to death during the
___2 year______
period beginning on the Closing Date, or in the event of the Executive’s death
following termination but prior to the payment of all Severance Benefits due
hereunder, the Severance Benefits will be paid to the Executive’s
estate. Section 9 hereof shall not apply if termination occurs due to
death or if death occurs following termination and prior to the expiration of
the time period for execution of the Waiver and Release.
12. Assignment. No
right, benefit or interest hereunder shall be subject to assignment,
anticipation, alienation, sale, encumbrance, charge, pledge, hypothecation or
set-off for any claim, debt or obligation, or subject to execution, attachment,
levy or similar process; but the Executive may assign any right, benefit or
interest if the assignment is permitted under the terms of any Agreement or
insurance policy, or annuity contract governing that right, benefit or
interest.
13. Construction. Nothing
in this Agreement shall be construed to amend any provision of any agreement or
policy of Lyondell or any Subsidiary except as otherwise expressly noted
herein. This Agreement is not, and shall not, be deemed to create any
commitment by the Lyondell or any Subsidiary to continue the Executive’s
employment. The captions of this Agreement are not part of the
provisions and shall have no force or effect.
14. Successors. The
Executive’s rights under this Agreement are personal to the Executive and shall
not be assignable by the Executive other than by will or the laws of descent and
distribution without the prior written consent of Lyondell. This
Agreement shall insure to the benefit of and be enforceable by the Executive’s
legal representatives.
15. Taxes. Any
payment or delivery required under this Agreement shall be subject to all legal
requirements regarding tax withholding, filing, reporting and other
obligations.
16. Governing
Law. TO THE EXTENT THIS AGREEMENT IS NOT GOVERNED BY FEDERAL
LAW, THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW
PRINCIPLES.
17. Terms. Unless
otherwise indicated in this Agreement, capitalized terms used herein have the
meaning given to them in the ESPP.
IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
[Executive]
By:
/s/ Xxxxxx
Xxxx 1/23/08
Lyondell
Chemical Company
By: /s/ Bard de
Jong
Name: Xxxx xx
Xxxx
Title: Sr.
VP HR
Exhibit
A-1
RELEASE
AND WAIVER
I, the undersigned employee, and
[____________] (“Company”) agree as follows:
In exchange for this Release and Waiver
(“Release”), I will receive a severance payment and other payments and benefits
under the Agreement entered into between me and Access Industries, Inc. dated
___________ (the “Agreement”). I recognize that I am not entitled to receive
these payments or other benefits under any other Company plan, policy, and/or
arrangement. These payments and benefits are not otherwise due or owing to me
under any existing company plan, policy, or contract. I further
understand that payments under the Agreement are taxable income to me
and that the Company may withhold any amount required by law and/or is
authorized to offset any amount which I still owe the Company at my termination
date from these payments.
I agree that my employment with the
Company has ended or will end and that my termination date is/was
_____________________.
In exchange for the consideration
listed above, I irrevocably and unconditionally release and discharge the
Company, its predecessors, successors, divisions, subsidiaries, affiliates,
joint venture partners or co-owners and any employees, agents, officers, and
directors of any of the entities listed above and any insurers if applicable
(“the Released Parties”) from all the known or unknown claims, liabilities,
demands and causes of action (“Claims”) which I presently or at any time may
have or claim to have against the Released Parties as a result of my employment
with and termination from the Company. I acknowledge that I am releasing Claims
that I know about as well as Claims I may not know about, but which have accrued
as of the date I signed this release, and I understand the significance of
releasing Claims I may have. I agree not to file any claim, complaint, charge,
or lawsuit against any Released Party to assert these Claims.
This includes, but is not limited to,
Claims under the Workers Adjustment Retraining Notification Act (“WARN”), which
requires advanced notice of certain work force reductions; the Age
Discrimination in Employment Act, as amended by the Older Worker Benefit
Protection Act and Executive Order 11141, which prohibit age discrimination in
employment; Title VII of the Civil Rights Act of 1964, Section 1981 of the Civil
Rights Act of 1866 and Executive Order 11246, which prohibit discrimination
based on race, sex, color, national origin, or religion, each of the foregoing
as amended by the Civil Rights Act of 1991; the Equal Pay Act, which prohibits
paying men and women unequal pay for equal work; the American with Disabilities
Act and Sections 503 and 504 of the Rehabilitation Act of 1973, which prohibit
discrimination against the disabled; Section 510 of the Employee Retirement
Income Security Act, which prohibits discrimination for exercising rights to
benefits under employee benefit plans; claims under the Family & Medical
Leave Act; claims under the Texas Commission on Human Rights Act; claims under
Xxxxxxxx-Xxxxx Act of 2002; claims under the Texas Payday Act; claims under the
common law (including, but not limited to, claims of termination or
discrimination for refusing to commit an illegal act); claims under any Workers
Compensation Act; or claims arising under federal, state, or local laws
prohibiting employment discrimination or claims growing out of any legal
restrictions on the Company’s right to terminate its employees, including, but
not limited to contract, tort or emotional distress claims. I acknowledge I am
receiving sufficient and additional consideration in exchange for the Release
contained herein.
In
further consideration of the severance payment and other payments and benefits
provided under the Agreement, I agree to indemnify and hold the Company harmless
from and against any and all loss, cost, damage, or expense, including, without
limitation, attorney fees incurred by the Company arising out of any breach of
this Release. Furthermore, if I breach this Release, I agree to
immediately return and/or refund all monies previously paid by the Company
hereunder and that the Company will thereafter have no further obligation to
me.
I
agree to comply with all the continuing provisions of the Confidentiality
Agreement executed by me at the beginning of and/or during my term of
employment. Failure to comply with the continuing provisions of the
Confidentiality Agreement shall entitle the Company to the remedies contained in
the Confidentiality Agreement.
_________
__________
Initials
Date
I
acknowledge that, before signing this Release, I was given 21 days to consider
it and the Company advised me to discuss this Release with my lawyer. I also
acknowledge that I carefully read and considered this Release, I fully
understand and agree that I am entering into this Release voluntarily. I also
understand that I have seven days from the date I signed this
Release to revoke it and that I will not be eligible for any payment
under this agreement until the Release is signed and this seven day revocation
period has passed.
This
Release sets forth the entire agreement between the Company and me. I
acknowledge that I have not relied upon any written or oral representation or
statement which is not set forth in this Release. If any provision of this
Release is found to be unenforceable, all other provisions of this Release will
remain fully enforceable. This release binds my heirs, administrators,
representatives, executors, successors, and assigns and will inure to the
benefit of the Released Parties, and their successors and assigns.
Name
(Last, First, MI)
Xxxx,
Xxxxxx
|
Date
|
Signature
|
Exhibit
A-2
RELEASE
AND WAIVER
I, the undersigned employee, and
[_____________] (“Company”) agree as follows:
In exchange for this Release and Waiver
(“Release”), I will receive a severance payment and other payments and benefits
under the Agreement entered into between me and Access Industries, Inc. dated
___________ (the “Agreement”). I recognize that I am not entitled to receive
these payments or other benefits under any other Company plan, policy, and/or
arrangement. These payments and benefits are not otherwise due or owing to me
under any existing company plan, policy, or contract. I further
understand that payments under the Agreement are taxable income to me and that
the Company may withhold any amount required by law and/or is authorized to
offset any amount which I still owe the Company at my termination date from
these payments.
I agree that my employment with the
Company has ended or will end and that my termination date is/was
_____________________.
In exchange for the consideration
listed above, I irrevocably and unconditionally release and discharge the
Company, its predecessors, successors, divisions, subsidiaries, affiliates,
joint venture partners or co-owners and any employees, agents, officers, and
directors of any of the entities listed above and any insurers if applicable
(“the Released Parties”) from all the known or unknown claims, liabilities,
demands and causes of action (“Claims”) which I presently or at any time may
have or claim to have against the Released Parties as a result of my employment
with and termination from the Company. I acknowledge that I am releasing Claims
that I know about as well as Claims I may not know about, but which have accrued
as of the date I signed this release, and I understand the significance of
releasing Claims I may have. I agree not to file any claim, complaint, charge,
or lawsuit against any Released Party to assert these Claims.
This includes, but is not limited to,
Claims under the Workers Adjustment Retraining Notification Act (“WARN”), which
requires advanced notice of certain work force reductions; the Age
Discrimination in Employment Act, as amended by the Older Worker Benefit
Protection Act and Executive Order 11141, which prohibit age discrimination in
employment; Title VII of the Civil Rights Act of 1964, Section 1981 of the Civil
Rights Act of 1866 and Executive Order 11246, which prohibit discrimination
based on race, sex, color, national origin, or religion, each of the foregoing
as amended by the Civil Rights Act of 1991; the Equal Pay Act, which prohibits
paying men and women unequal pay for equal work; the American with Disabilities
Act and Sections 503 and 504 of the Rehabilitation Act of 1973, which prohibit
discrimination against the disabled; Section 510 of the Employee Retirement
Income Security Act, which prohibits discrimination for exercising rights to
benefits under employee benefit plans; claims under the Family & Medical
Leave Act; claims under the Texas Commission on Human Rights Act; claims under
Xxxxxxxx-Xxxxx Act of 2002; claims under the Texas Payday Act; claims under the
common law (including, but not limited to, claims of termination or
discrimination for refusing to commit an illegal act); claims under any Workers
Compensation Act; or claims arising under federal, state, or local laws
prohibiting employment discrimination or claims growing out of any legal
restrictions on the Company’s right to terminate its employees, including, but
not limited to contract, tort or emotional distress claims. I acknowledge I am
receiving sufficient and additional consideration in exchange for the Release
contained herein.
In
further consideration of the severance payment and other payments and benefits
provided under the Agreement, I agree to indemnify and hold the Company harmless
from and against any and all loss, cost, damage, or expense, including, without
limitation, attorney fees incurred by the Company arising out of any breach of
this Release. Furthermore, if I breach this Release, I agree to
immediately return and/or refund all monies previously paid by the Company
hereunder and that the Company will thereafter have no further obligation to
me.
I
agree to comply with all the continuing provisions of the Confidentiality
Agreement executed by me at the beginning of and/or during my term of
employment. Failure to comply with the continuing provisions of the
Confidentiality Agreement shall entitle the Company to the remedies contained in
the Confidentiality Agreement.
_________
__________
Initials
Date
I
acknowledge that, before signing this Release, I was given 45 days to consider
it and the Company advised me to discuss this Release with my lawyer. I also
acknowledge that I carefully read and considered this Release, I fully
understand and agree that I am entering into this Release voluntarily. I also
understand that I have seven days from the date I signed this
Release to revoke it and that I will not be eligible for any payment
under this agreement until the Release is signed and this seven day revocation
period has passed.
This
Release sets forth the entire agreement between the Company and me. I
acknowledge that I have not relied upon any written or oral representation or
statement which is not set forth in this Release. If any provision of this
Release is found to be unenforceable, all other provisions of this Release will
remain fully enforceable. This release binds my heirs, administrators,
representatives, executors, successors, and assigns and will inure to the
benefit of the Released Parties, and their successors and assigns.
Name
(Last, First, MI)
Xxxx,
Xxxxxx
|
Date
|
Signature
|
DISCLOSURE
Effective
___________________________
Your
employment with the Company is terminated. Severance and other
payments and benefits are available under the Agreement in exchange for a waiver
of rights and claims under the Age Discrimination in Employment
Act (“ADEA”). The Agreement and the waiver provide the
information required by 29
U.S.C. § 626(7)(f)(l)(H) as follows:
1.
|
You
must sign the waiver and return it to the Vice President, Human Resources
within 45 calendar days after receiving the waiver to receive payments and
benefits under the Agreement.
|
2.
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Once
the waiver is signed and returned to the Vice President, Human Resources
you have seven (7) calendar days to revoke the waiver
agreement.
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3.
|
You
must meet all of the following requirements to be eligible for this
severance package:
|
§
|
terminated
from employment within the two year period following a change in
control;
|
§
|
execute,
deliver and do not revoke a Release and Waiver within 45 calendar days
from the date the Company provides you the
form.
|
4.
|
The
following is a listing of the ages and job titles of employees who are
eligible for payments and benefits and those who are ineligible
.
|
a
Job
Title
|
Age*
|
Eligible
for Payments
|
Ineligible
for Payments
|
*Must be in one year
increments.
Employee
Name:
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Age:
|
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Job
Title:
|
|
Notification
Date:
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Location:
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