Exhibit 10.25
SEVERANCE AGREEMENT
THIS AGREEMENT by and between Air Products and Chemicals,
Inc., a Delaware corporation (hereinafter "Air Products" or the "Company"), with
its principal office in Allentown, Pennsylvania, and Xxxx X. Xxxxx III (the
"Executive"), an individual residing at 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxx, 00000, dated and effective as of November 20, 2003.
WHEREAS, the Executive is the Chairman, Chief Executive
Officer and President of the Company and has made and is expected to continue to
make major contributions to the short and long term profitability, growth, and
financial strength of the Company; and
WHEREAS, the Management Development and Compensation Committee
of the Board of Directors of Air Products has determined that it is in the best
interests of the Company and its shareholders to take appropriate steps to
encourage the continued attention and dedication of the Executive to his
assigned duties without distraction; and
WHEREAS, in consideration of the Executive's continued
employment with the Company, the Company desires to provide the Executive with
certain compensation and benefits set forth in this Agreement to ameliorate the
financial and career impact on the Executive were the Executive's employment
with the Company to be terminated under certain circumstances.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Defined Terms. In addition to terms defined elsewhere herein,
the following terms have the following meanings when used in this Agreement with
initial capital letters:
(a) "Benefit" or "Benefits" means any or all of the benefits that
the Executive is entitled to receive pursuant to Section 2 of this Agreement.
(b) "Board" means the Board of Directors of Air Products.
(c) "Bonus" means 100% of the midpoint target bonus for the
Executive's salary grade, determined as of the Executive's Employment
Termination Date under the grant guidelines for the Air Products Annual
Incentive Plan or similar successor or substitute annual incentive plan or
program.
(d) "Cause" means:
(i) the willful and continued failure by the Executive to
substantially perform his duties with the Company (other than any such failure
resulting from his
Disability or occurring after the issuance by the Executive of a notice of
Constructive Termination) over a period of not less than thirty days after a
demand for substantial performance is delivered to the Executive by the Board
which identifies the manner in which the Board believes that the Executive has
not substantially performed his duties; or
(ii) the willful misconduct of the Executive materially
and demonstrably injurious to the Company (including ,without limitation, any
willful breach by the Executive of Appendix B of this Agreement as if in effect
at the time the willful misconduct took place); provided that no act or failure
to act on the Executive's part will be considered willful if done, or omitted to
be done, by him in good faith and with reasonable belief that his action or
omission was in the best interest of the Company.
(e) "Change in Control" means "change in control" as such term is
defined in that certain severance agreement between the Executive and the
Company dated September 16, 1999 (the "CIC Agreement").
(f) "Code" means the Internal Revenue Code of 1986, as amended.
(g) "Committee" means the Management Development and Compensation
Committee of the Board, that may act on behalf of the Company with respect to
the Agreement as provided herein.
(h) "Company" means Air Products and Chemicals, Inc. The term
"Company" shall include any Subsidiary or any successor to Air Products such as
a corporation succeeding to the business of Air Products or any Subsidiary, by
merger, consolidation or liquidation, or purchase of assets or stock or similar
transaction.
(i) "Constructive Termination" means the termination of the
Executive's employment with the Company by the Executive as a result of one of
the following events, without the Executive's express written consent unless the
event is remedied by the Company within 30 days after receipt of written notice
thereof given by the Executive:
(i) A material change in or failure to hold the titles
and positions of Chairman of the Board and Chief Executive Officer, other than a
circumstance where the Executive continues to serve as a director but
relinquishes the title and position of Chairman of the Board in order for the
Company to comply with applicable law or conform to stock exchange listing
standards;
(ii) A material reduction in overall compensation
opportunity, taking into account combined Salary and Bonus and Long-Term
Incentive Plan compensation as in effect on the date of this Agreement or
thereafter, if higher; or
(iii) A termination of or a material adverse amendment to
this Agreement.
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In no event shall the termination of the Executive's employment with the Company
on account of death, voluntary resignation other than on account of Constructive
Termination, Disability or Cause be deemed to be a Constructive Termination.
A termination of employment by the Executive on account of Constructive
Termination shall be effectuated by giving the Company written notice of the
termination, setting forth in reasonable detail the specific conduct of the
Company that constitutes Constructive Termination and the specific provision(s)
of this Agreement on which the Executive relies. A termination of employment by
the Executive on account of Constructive Termination shall be effective as of
the first business day following the end of the Company's 30-day cure period,
unless a later date is agreed upon by the Company and the Executive.
(j) "Disability" means the Executive incurs a permanent disability
within the meaning of the Company's long-term disability plan.
(k) "Employment Termination Date" means the date specified or
agreed to by the Executive or the Committee in writing, as applicable, on which
the active employment relationship between the Executive and the Company is to
be and is in fact terminated.
(l) "Fiscal Year" means each period commencing on October 1 and
ending on the subsequent September 30 during which this Agreement is in effect.
(m) "Involuntary Termination" means the termination of the
Executive's active employment relationship with the Company either: (i) by the
Company for any reason other than Cause, death, or Disability not later than the
thirtieth day following written notice of such termination by the Company to the
Executive; or (ii) on account of a Constructive Termination.
(n) "Long-Term Incentive Plan" means the Air Products Long-Term
Incentive Plan approved by Air Products' shareholders most recently on January
23, 2003, together with all predecessor and similar successor or substitute
intermediate and/or long-term incentive compensation plan or program.
(o) "Salary" means an amount equal to the annual rate of the
Executive's base salary payable to the Executive in all capacities with the
Company and its Subsidiaries or affiliates for the Fiscal Year in which the
Executive's Employment Termination Date occurs.
(p) "Subsidiary" means any corporation in which the Company owns,
directly or indirectly, more than 50% of the voting securities
2. Involuntary Termination. In the event that the Executive's employment
is terminated on account of an Involuntary Termination, upon the Executive's
Employment Termination Date and his satisfaction of the conditions specified in
Section 3, the
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Executive shall be entitled to receive the Benefits described in (a) through (c)
below in accordance with the payout provisions of Section 4:
(a) Cash Benefits.
(i) a cash severance Benefit equal to three times the
aggregate of the Executive's Salary plus Bonus,
(ii) an amount in lieu of the Executive's bonus which
would have been paid under the Air Products Annual Incentive Plan or similar
successor or substitute annual incentive plan or program for the Fiscal Year in
which the Employment Termination Date occurs, equal to the Bonus multiplied by a
fraction, the numerator of which is the number of days in the current Fiscal
Year through the Executive's Employment Termination Date, and the denominator of
which is 365,
(iii) any accrued but unpaid vacation pay, any similar
unpaid items that have accrued and to which the Executive has become entitled as
of his Employment Termination Date, including declared but unpaid bonuses and
unreimbursed employee business expenses,
(iv) a $40,000 stipend to cover miscellaneous transition
expenses including outplacement assistance and legal fees incurred at the time
of or in connection with the Involuntary Termination, and
(v) supplemental pension benefits paid by the Company
equal to the excess of (i) those pension benefits calculated by adding three
years of service to the Executive's actual service credited for benefit accrual
purposes under the the Company's Pension Plan for Salaried Employees and
Supplementary Pension Plan (together, the "Pension Plans") and assuming that the
Executive had satisfied as of the Employment Termination Date the age and
service requirements for any early retirement subsidy available under the
Pension Plans over (ii) the Executive's accrued vested pension benefits under
the Pension Plans as of the Employment Termination Date. The supplemental
pension benefits payable hereunder shall be paid at the same time and in the
same form as the Executive elects for his Supplementary Pension Plan benefit.
(b) Long-Term Incentive Plan Benefits. In addition to the Benefits
payable under (a) above, the Executive's outstanding Long-Term Incentive Plan
awards shall be treated as follows:
(i) All stock options and stock appreciation rights which
are outstanding as of the Executive's Employment Termination Date shall continue
to vest in accordance with their normal vesting schedule (if not fully vested as
of the Employment Termination Date) and shall remain in effect for the remainder
of their stated term, as set forth in the agreements governing such awards, in
each case as if the Executive had continued in employment following the
Employment Termination Date; provided, however, that the number of shares
subject to any stock option granted less than one year
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prior to the Employment Termination Date shall be reduced by multiplying the
number of shares by a fraction the numerator of which is the number of days
worked in the Fiscal Year in which the Employment Termination Date occurs and
the denominator of which is 365.
(ii) All unearned performance shares or other awards with
performance-based vesting or earnout shall earn out or vest consistent with the
decision made by or on behalf of the Company for other senior executives for the
relevant cycle and shall be paid out promptly following earn-out or vesting (or,
if later, the end of the revocation period of the release described in Section
3).
(iii) All awards, including career shares and earned but
deferred performance shares, which are subject to time-based vesting or other
non-performance-based conditions, shall be paid out promptly following the
Executive's Employment Termination Date (or, if later, the end of the revocation
period of the release described in Section 3).
(c) Medical Benefits. For the period described in the next
sentence, the Company will provide to the Executive and his dependents benefits
equivalent to those provided by the Company under the medical plan in which the
Executive was participating on the Employment Termination Date; provided,
however, that the Company may elect to pay the Executive cash in lieu of
coverage under such plans or programs in an amount equal to Executive's
after-tax cost of continuing such coverage, where such coverage may not be
continued (or where such continuation would adversely affect the tax status of
the plan or program pursuant to which the coverage is provided). The period
during which any of these benefits shall be provided shall commence on the day
after the revocation period for the release required by Section 3 expires, but
retroactive to the Employment Termination Date, and shall continue until the
earliest of (i) the Executive's death, (ii) the third anniversary of the
Executive's Employment Termination Date, or (iii) the date on which any such
benefit would otherwise have ceased to be provided to the Executive under any
such plans or programs, as in effect on the Executive's Employment Termination
Date had the Executive not incurred an Employment Termination Date. In the event
of the Executive's death during the period specified above, benefits in respect
of the Executive or the Executive's beneficiaries shall be provided in
accordance with the terms of each of the plans or programs applicable to active
employees of the Company. Any continuation of health benefits pursuant to this
subparagraph shall not run concurrent with any continuation rights owed to the
Executive pursuant to the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended ("COBRA"), and for purposes of applying COBRA with respect to
the Executive's coverage under any group health plan, the end of coverage under
this subparagraph shall be deemed to be the date of a qualifying event resulting
from the termination of a covered employee.
3. Conditions to Entitlement to Benefit. To be eligible to receive any
Benefits under this Agreement after the Executive's Employment Termination Date
has been set, the Executive must (a) continue in his then current office and
perform such duties for the
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Company as are typically related to the Executive's position (or such other
position as the Committee reasonably requests) including identifying, recruiting
and/or transitioning the Executive's successor, in all events performing all
assigned duties in the manner reasonably directed by the Committee, in its sole
discretion, but consistent with his title and position with the Company, and
cease his employment on, and not retire before, the Employment Termination Date;
(b) execute a release and discharge (without revocation) of the Company, in
substantially the form attached hereto as Appendix A, from any and all claims,
demands or causes of action (other than as provided in said Appendix A), within
21 days of its presentation to the Executive; and (c) execute the
Noncompetition, Nonsolicitation, and Nondisparagement Agreement that extends for
the three-year period following the Executive's Employment Termination Date in
substantially the form attached hereto as Appendix B, with such changes therein
as the Committee shall reasonably determine to be required by applicable law or
regulation, or as otherwise mutually agreed. Benefits due hereunder shall be
paid in accordance with Section 4 provided that the Executive has complied in
all respects with the requirements of this Section 3. On the date that the
Executive's release becomes irrevocable, the Company shall execute a release in
favor of the Executive, substantially in the form attached hereto as Annex 1,
with such changes therein as the Committee shall reasonably determine to be
required by applicable law.
4. Method of Payment. The cash Benefits to which the Executive is
entitled, as determined pursuant to Section 2(a) hereof, shall be paid in a lump
sum following the Executive's Employment Termination Date, subject to all
employment and withholding taxes applicable to the type of payments made. In
general, payments shall be made within 30 days after the Executive's Employment
Termination Date or, if later, after the expiration of any revocation period for
the release signed by the Executive pursuant to Section 3. Long-Term Incentive
Plan awards, referred to in Section 3, will be paid in the form, and subject to
applicable withholding, as provided in the respective award agreements.
5. Death or Disability.
(a) If the Executive incurs a Disability or dies before the
Employment Termination Date has been set, no payments or other benefits will be
due and owing under this Agreement to the Executive or, in the case of his
death, to his estate or beneficiary.
(b) If the Executive incurs a Disability or dies after his
Employment Termination Date has been set but not attained, the Committee shall
cause any payments and benefits due under this Agreement to be paid to the
Executive or, in the case of his death, to the Executive's designated
beneficiary or to his estate; provided, however, that if the Executive dies
after he has retired prior to attaining the Employment Termination Date, no
payments and benefits shall be due and owing under this Agreement to the
Executive's designated beneficiary, his estate, or any other person. For this
purpose, "retire" means to have separated from employment and begun to receive
an immediate pension benefit under a Company-sponsored defined benefit pension
plan.
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The Executive's beneficiary designation shall be made in the manner, and at the
time, prescribed by the Committee in its sole discretion. In the absence of an
effective beneficiary designation hereunder, the Executive's estate shall be
deemed to be the designated beneficiary.
6. Change in Control. In the event of a Change in Control of the Company,
the CIC Agreement shall continue in full force and effect and this Agreement
shall be null and void; and, if the Change in Control occurs after the
Employment Termination Date has been set but before the Employment Termination
Date, the CIC Agreement shall continue in full force and effect and the
Employment Termination Date under this Agreement shall be treated under the CIC
Agreement as the Executive's "Employment Termination Date" for other than death,
"Disability" or "Cause", as such terms appearing in quotations are defined in
the CIC Agreement, and this Agreement shall be null and void.
7. Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any plan, program,
policy or practice provided by the Company or any of its affiliated companies
for which the Executive may qualify. Vested benefits and other amounts that the
Executive is otherwise entitled to receive on or after the Employment
Termination Date under any plan, policy, practice or program of, or any contract
or agreement with, the Company or any of its affiliated companies shall be
payable in accordance with such plan, policy, practice, program, contract or
agreement, as the case may be, except as explicitly modified by this Agreement.
8. No Mitigation. In no event shall the Executive be obligated to seek
other employment or take any other action by way of mitigation of the amounts
payable to the Executive under any of the provisions of this Agreement and such
amounts shall not be reduced, regardless of whether the Executive obtains other
employment.
9. Successors and Assigns.
(a) This Agreement is personal to the Executive and, without the
prior written consent of the Company, shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
(c) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would have been required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall mean both
the Company as defined above and any such successor that assumes and agrees to
perform this Agreement, by operation of law or otherwise.
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10. Arbitration. The Company and the Executive mutually consent to the
resolution by arbitration, in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association, to be
held in Philadelphia, Pennsylvania, of all claims or controversies, other than a
claim which is primarily for equitable relief or an injunction to enforce a
right or remedy under Appendix B of this Agreement, arising out of the
Executive's employment (or its termination) that the Company may have against
the Executive or that the Executive may have against the Company or against its
officers, directors, shareholders, employees or agents in their capacity as
such. The parties shall share the fees and costs of the arbitrator and all other
costs in connection with any arbitration and each party shall bear its legal
fees and expenses. Any such arbitration proceedings must be instituted by the
party requesting a resolution within twelve months of the time that party knew,
or should have known, of the dispute as to the events or facts giving rise to
the claims or controversies requiring resolution. The failure to institute
arbitration proceedings within such period shall constitute an absolute bar to
the institution of any proceedings and a waiver of all claims.
11. Legal Fees. The Company agrees to pay all legal fees reasonably
incurred by the Executive in connection with the negotiation and preparation of
this Agreement.
12. Notice. All notices and other communications under this Agreement shall
be in writing and shall be given by hand to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive:
Xxxx X. Xxxxx III
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
With a required copy to:
Xxxx Xxxxxx, Esquire
Dechert LLP
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
If to the Company:
Air Products and Chemicals, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: General Counsel
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With a required copy to:
Xxxxxx X. Xxxxxxxxxxxx, Esquire
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
or to such other address as either party furnishes to the other in writing in
accordance with this Section 12. Notices and communications shall be effective
when actually received by the addressee.
13. Miscellaneous.
(a) This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Pennsylvania, without reference
to principles of conflict of laws. The captions of this Agreement are not part
of the provisions hereof and shall have no force or effect. This Agreement may
not be amended or modified except by a written agreement executed by the parties
hereto or their respective successors and legal representatives.
(b) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement. If any provision of this Agreement shall be held invalid or
unenforceable in part, the remaining portion of such provision, together with
all other provisions of this Agreement, shall remain valid and enforceable and
continue in full force and effect to the fullest extent consistent with law.
(c) Notwithstanding any other provision of this Agreement, the
Company may withhold from amounts payable under this Agreement all federal,
state, local and foreign taxes that are required to be withheld by applicable
laws or regulations.
(d) The Executive's or the Company's failure to insist upon strict
compliance with any provision of, or to assert any right under, this Agreement
shall not be deemed to be a waiver of such provision or right or of any other
provision of or right under this Agreement.
(e) This Agreement supersedes and replaces all prior agreements
except the CIC Agreement and the Employee Patent, Copyright and Confidential
Information Agreement attached hereto as Appendix C, and sets forth the entire
understanding among the parties hereto with respect to the subject matter hereof
and cannot be changed, modified, extended or terminated except upon written
amendment approved and executed by the Executive.
(f) This Agreement may be executed in several counterparts, each
of which shall be deemed an original, and said counterparts shall constitute but
one and the same instrument.
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(g) The respective rights and obligations of the parties hereunder
shall survive any termination of the Executive's employment to the extent
necessary to the intended preservation of such rights and obligations.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization of the Committee, the Company has caused this
Agreement to be executed in its name on its behalf, all as of the day and year
first above written.
AIR PRODUCTS AND CHEMICALS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chairman, Management Development and
Compensation Committee
EXECUTIVE
/s/ Xxxx X. Xxxxx III
-------------------------------------
Xxxx X. Xxxxx III
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APPENDIX A
GENERAL RELEASE
1. Xxxx X. Xxxxx III (the "Executive"), for and in consideration of (a)
certain severance benefits to be paid and provided to the Executive by Air
Products and Chemicals, Inc. (the "Company") under the written severance
agreement between the Company and the Executive dated November 20, 2003 (the
"Severance Agreement") and (b) the Company's execution of a release in favor of
the Executive, on the date this General Release becomes irrevocable,
substantially in the form attached hereto as Annex 1, and conditioned upon such
payments and provisions, does hereby REMISE, RELEASE, AND FOREVER DISCHARGE the
Company, and each of its past or present subsidiaries and affiliates, its and
their past or present officers, directors, shareholders, employees and agents,
their respective successors and assigns, heirs, executors and administrators,
the pension and employee benefit plans of the Company, or of its past or present
subsidiaries or affiliates, and the past or present trustees, administrators,
agents, or employees of the pension and employee benefit plans (hereinafter
collectively included within the term the "Company"), acting in any capacity
whatsoever, of and from any and all manner of actions and causes of actions,
suits, debts, claims and demands whatsoever in law or in equity, which the
Executive ever had, now have, or hereafter may have, or which the Executive's
heirs, executors or administrators hereafter may have, by reason of any matter,
cause or thing whatsoever from the beginning of the Executive's employment with
the Company to the date of this Release and particularly, but without limitation
of the foregoing general terms, any claims arising from or relating in any way
to the Executive's employment relationship and the termination of the
Executive's employment relationship with the Company, including but not limited
to, any claims which have been asserted, could have been asserted, or could be
asserted now or in the future under any federal, state or local laws, including
any claims under the Pennsylvania Human Relations Act, 43 PA. C.S.A. Sections
951 et seq., as amended, the Rehabilitation Act of 1973, 29 USC Sections 701 et
seq., as amended, Title VII of the Civil Rights Act of 1964, 42 USC Sections
2000e et seq., as amended, the Civil Rights Act of 1991, 2 USC Sections 60 et
seq., as applicable, the Age Discrimination in Employment Act of 1967, 29 USC
Sections 621 et seq., as amended ("ADEA"), the Americans with Disabilities Act,
29 USC Sections 706 et seq., and the Employee Retirement Income Security Act of
1974, 29 USC Sections 301 et seq., as amended, any contracts between the Company
and the Executive and any common law claims now or hereafter recognized and all
claims for counsel fees and costs; provided, however, that this Release shall
not apply to any entitlements under the terms of the Severance Agreement or
under any other plans or programs of the Company in which the Executive
participated and under which the Executive has accrued and become entitled to a
benefit other than under any Company separation or severance plan or programs.
Notwithstanding the foregoing, the Executive understands that the Executive
shall be indemnified by the Company as to any liability, cost or expense for
which the Executive would have been entitled to be indemnified during
employment, including for service as a director, in accordance with the
Company's certificate of incorporation or insurance coverages in force for
employees of the Company, as reviewed from time to time generally, in the
future, serving in executive capacities for actions taken on behalf of the
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Company within the scope of the Executive's service as a director of and/or
employment by the Company.
2. Subject to the limitations of paragraph 1 above, the Executive
expressly waives all rights afforded by any statute which expressly limits the
effect of a release with respect to unknown claims. The Executive understands
the significance of this release of unknown claims and the waiver of statutory
protection against a release of unknown claims.
3. The Executive hereby agrees and recognizes that his employment by the
Company was/will be permanently and irrevocably severed on ___________________,
20__ and the Company has no obligation, contractual or otherwise to the
Executive to hire, rehire or reemploy the Executive in the future. The Executive
acknowledges that the terms of the Severance Agreement provide him with payments
and benefits which are in addition to any amounts to which the Executive
otherwise would have been entitled.
4. The Executive hereby agrees and acknowledges that the payments and
benefits provided by the Company are to bring about an amicable resolution of
the Executive's employment arrangements and are not to be construed as an
admission of any violation of any federal, state or local statute or regulation,
or of any duty owed by the Company and that the Severance Agreement was, and
this Release is, executed voluntarily to provide an amicable resolution of the
Executive's employment relationship with the Company.
5. The Executive hereby acknowledges that nothing in this Release shall
prohibit or restrict the Executive from: (i) making any disclosure of
information required by law; (ii) providing information to, or testifying or
otherwise assisting in any investigation or proceeding brought by, any federal
regulatory or law enforcement agency or legislative body, any self-regulatory
organization, or the Company's designated legal, compliance or human resources
officers; or (iii) filing, testifying, participating in or otherwise assisting
in a proceeding relating to an alleged violation of any federal, state or
municipal law relating to fraud, or any rule or regulation of the Securities and
Exchange Commission or any self-regulatory organization.
6. The Executive hereby certifies that the Executive has read the terms of
this Release, that the Executive has been advised by the Company to discuss it
with his attorney, that the Executive has received the advice of counsel and
that the Executive understand its terms and effects. The Executive acknowledges,
further, that the Executive is executing this Release of his own volition with a
full understanding of its terms and effects and with the intention of releasing
all claims recited herein in exchange for the consideration described in the
Agreement, which the Executive acknowledges is adequate and satisfactory to his.
None of the above named persons, nor their agents, representatives, or attorneys
have made any representations to the Executive concerning the terms or effects
of this Release other than those contained herein.
7. The Executive hereby acknowledges that the Executive has been informed
that he has the right to consider this Release for a period of 21 days prior to
execution. The
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Executive also understands that the Executive has the right to revoke this
Release for a period of seven days following execution by giving written notice
to the Company at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx Xxxxxxxxxxxx 00000-0000,
Attention: General Counsel.
8. The Executive hereby further acknowledges that the terms of Appendix B
of the Severance Agreement and the provisions of the Employee Patent, Copyright
and Confidential Information Agreement entered into by him effective as of
November 20, 2003 (a copy of which is attached to the Severance Agreement as
Appendix C) continue to apply for the balance of the time periods provided
therein and that the Executive will abide by and fully perform such obligations.
9. This Release shall be construed in accordance with the laws of the
Commonwealth of Pennsylvania without giving effect to its conflict of laws
provisions.
Intending to be legally bound hereby, the Executive execute the foregoing
Release this ___ day of _____________, 20 ___.
___________________________ ___________________________
Witness Executive
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ANNEX 1
GENERAL RELEASE
1. Air Products and Chemicals, Inc. (the "Company") on its behalf and on
behalf of its subsidiaries and affiliates, their officers, directors, partners,
employees and agents, their respective successors and assigns, heirs, executors
and administrators (hereinafter collectively included within the term
"Company"), for and in consideration of Xxxx X. Xxxxx III (the "Executive")
executing the general release of claims against the Company dated
_______________ (the "Executive's Release of the Company"), and other good and
valuable consideration, does hereby REMISE, RELEASE, AND FOREVER DISCHARGE the
Executive, his assigns, heirs, executors and administrators (hereinafter
collectively included within the term "Executive"), acting in any capacity
whatsoever, of and from any and all manner of actions and causes of actions,
suits, debts, claims and demands whatsoever in law or in equity, which it ever
had, now have, or hereafter may have, by reason of any matter, cause or thing
whatsoever from the beginning of the Executive's employment with the Company to
the date of this Release arising from or relating in any way to the Executive's
employment relationship and the termination of his employment relationship with
the Company, including but not limited to, any claims which have been asserted,
could have been asserted, or could be asserted now or in the future under any
federal, state or local laws, any contracts between the Company and the
Executive, other than the Executive's Release of the Company, the Executive's
Noncompetition, Nonsolicitation, and Nondisparagement Agreement with the
Company, and the Employee Patent, Copyright and Confidential Information
Agreement entered into by the Executive on November 20, 2003, and any common law
claims now or hereafter recognized and all claims for counsel fees and costs,
but in no event shall this release apply to any action attributable to a
criminal act or to an action which Executive knew or should have known was
outside the scope of the Executive's employment.
2. Subject to the limitations of paragraph 1 above, the Company expressly
waives all rights afforded by any statute which expressly limits the effect of a
release with respect to unknown claims. The Company understands the significance
of this release of unknown claims and the waiver of statutory protection against
a release of unknown claims.
3. The Company hereby certifies that it has been advised by counsel in the
preparation and review of this Release.
4. This Release shall be construed in accordance with the laws of the
Commonwealth of Pennsylvania without giving effect to its conflict of laws
provisions.
Intending to be legally bound hereby, Air Products and Chemicals, Inc. executes
the foregoing Release this ____ day of ____________, 20__.
_______________________________ By:________________________
Witness
00
XXXXXXXX X
NONCOMPETITION, NONSOLICITATION, AND NONDISPARAGEMENT
AGREEMENT
Xxxx X. Xxxxx III (the "Executive"), for and in consideration of (a) certain
severance benefits to be paid and provided to the Executive by Air Products and
Chemicals, Inc. (the "Company") under the written severance agreement between
the Company and the Executive dated November 20, 2003 (the "Severance
Agreement"), and (b) the Company's execution of a release in favor of the
Executive, hereby covenants and agrees as follows:
1. The Executive acknowledges that the Company is generally engaged in
business throughout the world. During the Executive's employment by the Company
and for three years after the Executive's Employment Termination Date (as
defined in the Severance Agreement), the Executive agrees that he will not,
unless acting with the prior written consent of the Company, directly or
indirectly, own, manage, control, or participate in the ownership, management,
or control of, or be employed or engaged by, or otherwise affiliated or
associated with, as an officer, director, employee, consultant, independent
contractor, or otherwise, any corporation, partnership, proprietorship, firm,
association, or other business entity which is engaged in any manner anywhere in
the industrial gas business, the chemicals business, the home healthcare
business, i.e., the provision by the Company of homecare products and services
related to durable medical equipment, respiratory therapy, infusion services
and/or enteral therapy and related pharmacy services, or any other business
which, as of the Employment Termination Date, is engaged in by the Company, has
been reviewed with the Board for development to be owned or managed by the
Company, and/or has been divested by the Company but as to which the Company has
an obligation to refrain from involvement, but only for so long as such
restriction applies to the Company; provided, however, that (i) with respect to
the Company's chemical business the Executive and the Company agree that he will
be so limited only with respect to Bayer Corporation, BASF Corporation, Imperial
Chemical Industries, PLC, Forbo Group, Rohm & Xxxx Co., Lyondell Chemical
Company, National Starch and Chemical Company, Xxxxxx Group, and Celanese AG and
such other chemical company or companies which the Company may reasonably
designate as of the Employment Termination Date based on the then business of
the Company in relation to such other entities but consistent with the type of
companies already listed, and (ii) with respect to the Company's home healthcare
business the Executive and the Company agree that he will be so limited only
with respect to Apria Healthcare Group, Lincare/Lincare Holdings Inc., Rotech
Healthcare Inc., American HomePatient, Praxair, and Air Liquide unless and until
the Company generates at least 15% of its gross revenues from the home
healthcare business ; and provided further, however, that the ownership of not
more than 5% of the equity of a publicly-traded entity shall not be deemed to be
a violation of this paragraph.
2. The Executive also agrees that he will not, directly or indirectly,
during the period described in paragraph (1), induce any person who is an
employee, officer, director, or
15
agent of the Company, to terminate such relationship, or employ, assist in
employing or otherwise be associated in business with any present or former
employee or officer of the Company, including without limitation those who
commence such positions with the Company after the Employment Termination Date.
3. For the purposes of this Agreement, the term "Company" shall be deemed
to include Air Products and the subsidiaries and affiliates of Air Products as
in existence at any relevant date.
4. The Executive acknowledges and agrees that the restrictions contained
in this Agreement are reasonable and necessary to protect and preserve the
legitimate interests, properties, goodwill and business of the Company, that the
Company would not have entered into this Agreement in the absence of such
restrictions and that irreparable injury will be suffered by the Company should
the Executive breach the provisions of this Section. The Executive represents
and acknowledges that (i) the Executive has been advised by the Company to
consult the Executive's own legal counsel in respect of this Agreement, (ii) the
Executive has consulted with and been advised by his own counsel in respect of
this Agreement, and (iii) the Executive has had full opportunity, prior to
execution of this Agreement, to review thoroughly this Agreement with the
Executive's counsel.
5. The Executive further acknowledges and agrees that a breach of the
restrictions in this Agreement will not be adequately compensated by monetary
damages. The Executive agrees that the Company shall be entitled to (i)
preliminary and permanent injunctive relief, without the necessity of proving
actual damages, or posting of a bond, (ii) an equitable accounting of all
earnings, profits and other benefits arising from any violation of this
Agreement, and (iii) enforce the terms, including requiring forfeitures, under
other plans, programs and agreements under which the Executive has been granted
a benefit contingent on a covenant similar to those contained in this Agreement,
which rights shall be cumulative and in addition to any other rights or remedies
to which the Company may be entitled. In the event that the provisions of this
Agreement should ever be adjudicated to exceed the limitations permitted by
applicable law in any jurisdiction, it is the intention of the parties that the
provision shall be amended to the extent of the maximum limitations permitted by
applicable law, that such amendment shall apply only within the jurisdiction of
the court that made such adjudication and that the provision otherwise be
enforced to the maximum extent permitted by law.
6. If the Executive breaches his obligations under this Agreement, he
agrees that suit may be brought, and that he consents to personal jurisdiction,
in the United States District Court for the Eastern District of Pennsylvania, or
if such court does not have jurisdiction or will not accept jurisdiction, in any
court of general jurisdiction in Allentown, Pennsylvania; consents to the
non-exclusive jurisdiction of any such court in any such suit, action or
proceeding; and waives any objection which he may have to the laying of venue of
any such suit, action or proceeding in any such court. The Executive also
16
irrevocably and unconditionally consents to the service of any process,
pleadings, notices or other papers.
7. The Executive further agrees, covenants, and promises that he will not
in any way communicate the terms of this Agreement to any person other than his
immediate family and his attorney and financial consultant or when necessary to
advise a third party of his obligations under this Agreement. Notwithstanding
the foregoing, the Company and Executive also agree that for a period of three
years following the Employment Termination Date, the Executive will provide and
that at all times after the date hereof the Company may similarly provide, with
prior written notice to the Executive, a copy of this Agreement to any business
or enterprise (i) which the Executive may directly or indirectly own, manage,
operate, finance, join, control or of which he may participate in the ownership,
management, operation, financing, or control, or (ii) with which the Executive
may be connected as an officer, director, employee, partner, principal, agent,
representative, consultant, or otherwise, or in connection with which the
Executive may use or permit to be used the Executive's name. The Executive
agrees not to disparage the name, business reputation, or business practices of
the Company or its subsidiaries or affiliates, or its or their officers,
employees, or directors, and the Company agrees not to disparage the name or
business reputation of the Executive.
8. The Executive hereby expressly acknowledges and agrees that (i) the
provisions of the Employee Patent, Copyright and Confidential Information
Agreement entered into by him on November 20, 2003 (a copy of which is attached
hereto as Appendix C), shall continue to apply in accordance with its terms, and
(ii) the provisions of the Executive's outstanding incentive award agreements
granted under the Company's Long-Term Incentive Plan, as defined in the
Agreement, shall continue to apply in accordance with their terms except as
otherwise provided in Section 2 of the Severance Agreement and except that, for
purposes of interpreting the provisions of the first indented clause of Section
2 of the "Conditions"(as defined in, and as set forth in Exhibit A to, each of
the Executive's award agreements under the Long-Term Incentive Plan), "in
Competition with the Company" shall be construed as provided in this Agreement.
9. No failure or delay on the part of the Company in exercising any power
or right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power preclude any further or other
exercise thereof or the exercise of any other right or power hereunder. No
modification or waiver of any provision of this Agreement or consent to any
departure by any party therefrom shall in any event be effective until the same
shall be in writing and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice to or
demand on any party in any case shall entitle such party to any other or further
notice or demand in similar or other circumstances.
10. This Agreement shall be construed in accordance with the laws of the
Commonwealth of Pennsylvania without giving effect to its conflict of laws
provisions.
17
This Agreement shall extend to and inure to the benefit of the respective
successors and assigns of the Company.
Intending to be legally bound hereby, the Executive execute the Noncompetition,
Nonsolicitation, and Nondisparagement Agreement this ___ day of _____________,
20 ___.
___________________________ ________________________
Witness Executive
18
[AIR PRODUCTS LOGO]
EMPLOYEE PATENT, COPYRIGHT AND CONFIDENTIAL INFORMATION AGREEMENT
In consideration of my employment by Air Products and Chemicals, Inc., its
divisions, affiliates and subsidiaries (all, collectively, referred to
hereinafter as the Company), I agree that I will:
A. Communicate to the Company promptly and fully in writing, in such format as
the Company may deem appropriate, all inventions made or conceived by me
whether alone or jointly with others from my time of entering the Company's
employ until I leave, and as requested, to assign to the Company those of
such inventions which (1) relate to a field of business, research or
investigation in which the Company has an interest, or (2) result from, or
are suggested by, any work which I may do for or on behalf of the Company;
B. Make and maintain adequate permanent records of all such inventions, in the
form of memoranda, notebook entries, drawings, print-outs or reports
relating thereto, in keeping with then current Company procedures. I agree
that these records, as well as the inventions themselves, shall be and
remain the property of the Company at all times;
C. Cooperate with and assist the Company and its nominees, at their sole
expense, during my employment and thereafter, in securing and protecting
patent rights in which I am a named inventor or other similar rights in the
United States and foreign countries. In this connection, I specifically
agree to execute all papers which the Company deems necessary to protect its
interests including the execution of assignments of invention and to give
evidence and testimony, as may be necessary, to secure and enforce the
Company's rights;
D. Except as the Company may otherwise authorize in writing, not use or
disclose to others, reproduce or copy at any time, except as my Company
duties may require, either during or subsequent to my employment, any
private information of the Company or of others as to whom the Company has
an obligation of confidentiality which may come to my attention or be
developed by me during the course of my employment other than information
which is or becomes public knowledge in a lawful manner;
E. Upon termination of my employment with the Company, deliver to it all
records, data and memoranda of any nature which are in my possession or
control and which relate to my employment or the activities of the Company,
including, for example, notebooks, diaries, reports, photographs, films,
manuals and computer software media.
F. Following termination of my employment, honor and abide by my continuing
obligation of confidentiality. I agree that, in any situation which arises
and involves a question of my freedom to disclose particular information to
a subsequent employer or anyone else, I will contact the Company in writing
and elicit its opinion on my freedom to make such a disclosure.
It is also agreed that:
G. All creative works which I produce during my employment and which relate to
the Company's business or technology shall be considered to have been
prepared for the Company as a part of and in the course of my employment.
Any such work shall be owned by the Company regardless of whether it would
otherwise be considered a work made for hire. Such works shall include,
among other things, computer programs and documentation, non-dramatic
literary works (e.g. professional papers and journal articles), visual arts
(e.g. pictorial, graphic and three dimensional), sound recordings, motion
pictures and other audiovisual works.
H. Nothing in this agreement shall bind me or the Company to any specific
period of service or employment, nor shall the termination of such
employment in any way affect the obligations assumed by me herein. Further,
this agreement replaces any and all prior agreements or understandings
between me and the Company concerning these subjects;
I. This agreement shall bind my heirs, executors, and administrators, and shall
inure to the benefit of the successors and assigns of the Company.
J. I will not disclose to any other employee of the Company any information as
to which I owe a continuing obligation of confidentiality to a previous
employer or client. Any inventions, patented or unpatented, which were made
or conceived by me prior to my employment are excluded from the operation of
this agreement, and I warrant that there are no such inventions, other than
those listed by me in the space provided on the back of this document.
WITNESS: ____________________________ ______________________________(L.S.)
Signature of Employee
DATED:
(LIST INVENTION INFORMATION ON THE BACK OF THIS AGREEMENT.)
19
APPENDIX C
Description Patent Nos. or Assignment or Disposition
of Application Nos. Employee Has Made or
Invention (if any) Will Make of Invention
_______________________ ________________________ _________________________
_______________________ ________________________ _________________________
_______________________ ________________________ _________________________
_______________________ ________________________ _________________________
_______________________ ________________________ _________________________
_______________________ ________________________ _________________________
_______________________ ________________________ _________________________
_______________________ ________________________ _________________________
_______________________ ________________________ _________________________
_______________________ ________________________ _________________________
_______________________ ________________________ _________________________
_______________________ ________________________ _________________________
20
