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Exhibit 10.31
XXXXXX X. XXXXXXX SEPARATION AGREEMENT
This Agreement, upon your signature, will constitute the agreement
between you and OM Group, Inc. and affiliated operating companies (referred to
herein as the "Company") on the terms of your separation from employment
(referred to herein as the "Agreement").
You understand that you would not be entitled to all of the
consideration set forth below as a result of the termination of your employment,
and that all of this consideration is available to you only as a consideration
of your acceptance of this Agreement. This Agreement is offered to you to
resolve any and all matters and issues relating to your service with the Company
and your separation from employment.
In exchange for the consideration described below, the parties agree as
follows:
1. Your employment with the Company is terminated effective
December 31, 1999.
2. You agree to amend the non-competition clause of your
employment contract to a three year (3) period.
3. The Company will provide you with the following:
(a) The Company will continue to pay your base salary, in
monthly installments, through June 30, 2000.
(b) You will receive your bonus for the 1999 fiscal year
in the amount of $177,000.
(c) Your health insurance will continue in force under
the provisions of the OMG Medical Plan provisions for
retired officers.
(d) You will have an opportunity to continue in force the
supplemental split dollar life insurance policies
which will be assigned to you. The Cash Surrender
value of these policies in the amount of
approximately $20,000. You will be responsible for
payment of the premium in order to continue these
policies.
(e) Lease and insurance payments for your automobile will
continue until the termination of the lease in May,
2000.
(f) Dues will be paid for your club memberships through
December 31, 1999.
(g) You will be vested in the OMG Benefit Restoration
Plan and eligible for periodic or lump sum payments
under the plan. Your account balance eligible for
payout is approximately $120,000.
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[Name]
March 13, 2000
Page 2
3. In return for the above monies to be paid and benefits to be
provided by the Company, the sufficiency of which is hereby
acknowledged by you, you agree on behalf of yourself, your
heirs, administrators, executors and assigns to WAIVE, RELEASE
AND PROMISE never to assert any or all claims that you have or
might have, based upon any occurrence to the effective date of
this Agreement, against OM GROUP, INC., its predecessors,
parent corporations, subsidiaries, affiliates, related
entities, officers, directors, shareholders, agents,
attorneys, employees, successors, or assigns, arising from or
related to your employment and/or the termination of your
employment.
These claims include, but are not limited to, any and all
claims, causes of action, suits, claims for attorneys' fees,
damages or demand; all claims of discrimination, on any basis,
including, without limitation, claims of race, sex, age,
ancestry, national origin, religion and/or disability
discrimination; any and all claims arising under federal,
state and/or local statutory, or common law, such as, but not
limited to, Title VII of the Civil Rights Act, as amended,
including the amendments to the Civil Rights Act of 1991, the
Americans with Disabilities Act, the Age Discrimination in
Employment Act of 1967, the Older Workers Benefit Protection
Act; any and all claims arising under any other state and/or
local anti-discrimination statute and the law of contract and
tort; and any and all claims, demands and causes of action
including, but not limited to, claims of breach of public
policy, unjust discharge or breach of contract.
You further WAIVE, RELEASE, AND PROMISE never to assert any
such claims, even if you presently believe you have no such
claims.
4. You also agree that you will not initiate or pursue any
lawsuit against the Company or its affiliates for any claims
of any type you might have against the Company based on any
act or event occurring on or before the effective date this
Agreement, including claims based on future effects of any
past acts. You also represent that you have not filed or
initiated any lawsuit against the Company or any Company
affiliate, and you acknowledge that the Company is relying on
such representations in entering into this Agreement with you.
You understand that the claims you are releasing do not
include rights or claims which may arise out of acts occurring
after the effective date of this Agreement which do not in any
way relate to the facts and circumstances of this Agreement of
your employment relationship with the Company.
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[Name]
March 13, 2000
Page 3
You also understand that the above provisions in this
paragraph shall not preclude you from instituting an action to
seek relief for any breach of this Agreement, or from
challenging the validity of this Agreement.
5. You understand that neither you nor the Company make any
admission of any failing or wrongdoing by entering in this
Agreement. You understand that the Company is not offering
this Agreement because it believes that you have any valid
legal claims against the Company. Instead, this Agreement is
offered to provide you with additional compensation upon your
employment termination.
6. You represent that you have returned to the Company any and
all property of the Company and information you have about the
Company's practices, procedures, trade secrets, customer
lists, or product list or product marketing. You further agree
not to divulge or reveal any trade secret or confidential
information of the Company, including but not limited to,
processes, procedures, formula or designs, or business plans,
financial information or customer lists.
7. You agree not to at any time divulge, disclose, or communicate
to any person, firm, or corporation, the existence of, or any
terms of, this Agreement or the circumstances relating to it
except as may be necessary to effectuate the terms of this
Agreement with your counsel and/or accountant who will also
hold this matter in strictest confidence. You agree not to
make any statements, whether written or oral, not take any
action which would result in the injury or impairment of the
reputation or goodwill of the Company or any of its
affiliates.
8. You understand and agree that in the event you breach any of
your obligations under this Agreement or as otherwise imposed
by law, the Company will pursue to recover the benefits paid
under the Agreement and to obtain all other relief provided by
law or equity including attorney fees.
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[Name]
March 13, 2000
Page 4
9. You understand that the Company does not intend to reinstate
you to employment and that the Company shall have no
obligation to consider you for future employment at any time
hereafter.
10. The following is required by the Older Workers Benefit
Protection Act:
(a) You have up to 21 days from the date of this letter
to accept the terms of this Separation Agreement,
although you may accept it at any time within those
21 days. You waive any right you may have to
additional time beyond this consideration period
within which to consider this Release. You understand
that no payments will be made unless and until you
sign this Agreement. You further understand that you
do not have to wait the entire 21 day period but may
sign this Agreement at any time during the period.
Prior to signing, you are advised to consult with an
attorney of your own choosing to discuss all aspects
of the Agreement.
(b) To accept the Agreement, please date and sign this
letter and return it to me. (An extra copy for your
files is enclosed.) Once you do so, you will have an
additional seven (7) days in which to revoke your
acceptance. To revoke, you must deliver to me a
written statement of revocation by hand-delivery or
registered mail, return receipt requested. I must
receive this revocation by the close of business on
the seventh (7th) day after you have signed this
letter. If you do not revoke, the eighth day after
the date of your acceptance will be the effective
date of the Agreement.
(c) In the event you decline to accept the terms of this
Agreement, or having accepted them, effectively
revoke the acceptance thereof, this Agreement shall
have no force or effect, and neither its terms, nor
any of the discussions of the parties relative to its
negotiation shall be admissible in any court or
arbitration proceeding.
11. To the extent governed by the law of any State, this Agreement
shall be governed by and interpreted and construed in
accordance with the laws of the State of Ohio. If any
provision of this Agreement shall, for any reason, be adjudged
by any court of competent jurisdiction to be invalid or
unenforceable, in whole or in part, such judgment shall not
affect, impair or invalidate the remainder of this Agreement.
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[Name]
March 13, 2000
Page 5
12. This Agreement, which consists of six (6) typewritten pages,
set forth the entire Agreement between you and the Company
concerning the matters discussed herein.
Sincerely,
OM Group, Inc.
Xxxxxxx X. Xxxxx
Vice President & General Counsel
By signing this letter, I acknowledge that no promise or inducement has
been offered to me to enter into this Agreement, except as expressly set forth
herein, and that this Agreement is executed without reliance upon any statements
or representations by the Company, except as expressly provided herein. I
further acknowledge that: I have had sufficient time to consider this Agreement
before signing it; I have carefully read this Agreement; I fully understand the
terms of the Agreement; and I am entering into it voluntarily.
Date: __________________________
________________________________ Signature: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
