EXHIBIT 10.5
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (the "Agreement") is made
by and between ISP Management Company, Inc. ("ISP", as more fully defined in
Paragraph 18 of this Agreement), and Xxxxxxxxx Xxxxxxxx ("Employee"), sometimes
herein collectively referred to as "the Parties".
WITNESSETH:
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WHEREAS, Employee has been employed at-will by ISP or its predecessors
or subsidiaries as Senior Vice President - Chief Financial Officer in Wayne, New
Jersey; and
WHEREAS, Employee's at-will employment with ISP shall end effective
September 15, 2005; and
WHEREAS, Employee and ISP desire that Employee's separation of
employment be on mutually acceptable and amicable terms; and
WHEREAS, Employee has been advised of his right to consult an attorney
before signing this Agreement.
NOW, THEREFORE, in consideration of the covenants herein undertaken,
and the releases herein contained including the general release in Paragraph 7
of this Agreement, and for other good and valuable consideration, receipt of
which is hereby acknowledged by the parties, ISP and Employee agree as follows:
1. Employee's employment with ISP shall terminate effective September
15, 2005 (the "Separation Date"). After the Separation Date, Employee shall no
longer serve as Senior Vice President - Chief Financial Officer or in any other
position, office, directorship and/or other capacity he holds with ISP. Employee
agrees to execute any paperwork reasonably necessary to effectuate this
separation.
2. ISP agrees to provide the following pay, benefits, and other
consideration to Employee:
(a) Beginning on September 16, 2005 and ending on August 15,
2006 (the "Separation Period"), ISP will pay Employee twenty-two (22)
semi-monthly payments of $12,133.34 each, less standard withholding and payroll
deductions,
each of which represents an amount equal to Employee's semi-monthly base salary
rate at the time of the Separation Date ("Separation Payments"). If Employee
accepts new full-time employment during the Separation Period, the Separation
Payments provided under this Paragraph 2(a) will be reduced by the amount of
Employee's new rate of pay. Employee agrees to notify ISP promptly of any
employment during the Separation Period in accordance with the provisions of
Paragraph 3 of this Agreement.
(b) ISP shall pay Employee an amount equal to his unused,
earned vacation entitlement as of the Separation Date, in accordance with ISP
policy. Calculation of this payment is based on Employee's base salary rate as
of the Separation Date and is subject to standard withholding and payroll
deductions.
(c) During the period September 16, 2005 through August 15,
2006 ("Benefits Period"), ISP shall continue to provide Employee and his
dependents, if any, medical, dental, and life insurance in the same amount which
is presently being provided to them by ISP under the same terms as applicable to
active employees of ISP, exclusive of long-term disability insurance. If during
the Benefits Period, Employee becomes eligible for coverage under any other
group health insurance plan, he shall promptly notify ISP, and ISP shall no
longer be obligated to provide any medical, dental, or life insurance to
Employee and his dependents. Upon expiration of the Benefits Period, if Employee
has not obtained other group health insurance coverage, he will be eligible to
elect, at his expense, continuation of his group medical and/or dental insurance
coverage provided by ISP as provided by the Consolidated Omnibus Budget
Reconciliation Act ("COBRA"). The Benefits Period shall be counted towards the
applicable COBRA continuation coverage period. During the Benefits Period and
thereafter, Employee shall no longer be eligible to participate in ISP's 401k
plan, and his rights and obligations shall be governed solely by the applicable
401k Plan.
(d) Employee's rights and obligations, including those
relating to vesting and exercise, with respect to any ISP Long Term Incentive
Units shall be governed by the applicable Long Term Incentive Plan.
(e) If, during the Separation Period, Employee becomes
disabled or dies, the benefits referred to in paragraph 2(c) will continue to
Employee or his estate, consistent with any applicable benefit plan or program.
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3. During the Separation Period, Employee agrees to provide written
notification of each of his subsequent employers, including his title and his
salary, to ISP c/o Director - Human Resources, International Specialty Products
Inc., 0000 Xxxx Xxxx, Xxxxxxxx # 0, Xxxxx, Xxx Xxxxxx 00000. Employee agrees
that his failure to so notify ISP of his employment status during the Separation
Period shall constitute a material breach of this Agreement. If such a breach
occurs, ISP's obligation to make any remaining payments or to provide any
benefit or other consideration to Employee under this Agreement shall cease
immediately.
4. Except as expressly provided in this Agreement, Employee shall
return to ISP all ISP-owned or used property in his possession on or before the
Separation Date. Employee further acknowledges and reaffirms his continuing
obligations, including his obligation of non-disclosure and confidentiality,
under the Agreement Regarding Confidentiality and Competition that he signed as
a condition of employment, a copy of which is attached hereto and made a part of
this Agreement. The parties agree that Employee's separation in terms of this
Agreement shall not be considered either a voluntary termination by Employee or
a termination for cause by ISP under the various agreements and policies that
govern Employee's employment with ISP, including the non-competition provision
of the Agreement Regarding Confidentiality and Competition.
5. Employee agrees to keep this Agreement confidential and not to
disclose its contents to anyone except his attorney and/or financial consultant,
if any, his immediate family, and appropriate governmental agencies which
require this information or as required by law. If disclosure is made to any of
the foregoing, Employee shall advise each of the confidentiality requirements of
this Agreement. Employee shall also keep confidential and not disclose to anyone
the circumstances leading to the execution of this Agreement, subject to the
exceptions specified in this Paragraph 5 and also subject to his right to
discuss such circumstances (including the contents of this Agreement) with any
bona fide prospective employers of Employee or as required by law.
6. If Employee discloses the contents of this Agreement or any other
information, the disclosure of which is prohibited by Paragraphs 4 and 5
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above, except as allowed and under the conditions provided therein, or is
otherwise in breach of this Agreement or the Agreement Regarding Confidentiality
and Competition, before all amounts, benefits or other consideration due under
this Separation Agreement and General Release are provided to him, ISP's
obligation to make any remaining payments or to provide any benefit or other
consideration to Employee under the instant Agreement shall cease. The foregoing
is in addition to and without limiting ISP's rights to any other remedy it may
have by reason of such a breach.
7. In consideration for the payments, benefits, and other
consideration provided for in this Agreement, Employee, on behalf of himself,
his heirs, executors, administrators, successors and assigns, hereby forever
releases and discharges ISP, its parent companies and their successors, assigns,
subsidiaries, affiliates, directors, officers, shareholders, representatives,
attorneys, insurers, agents and employees (hereinafter "Releasees") from any and
all causes of action, claims, losses, damages, costs and/or expenses (including
attorney's fees) and/or other liabilities (collectively, "Liabilities"), known
or unknown, asserted or unasserted, which Employee has or may have, from the
beginning of time to the date of the execution of this Agreement, including, but
not limited to, Liabilities arising under any and all federal, state, or local
laws, regulations, or ordinances prohibiting discrimination in employment on the
basis of sex, sexual orientation, race, age, religion, national origin, mental
or physical disability, or any other form of unlawful discrimination, including
but not limited to, Title VII of The Civil Rights Act of 1964, as amended; the
Age Discrimination in Employment Act of 1967, as amended; the Family and Medical
Leave Act; the Americans with Disabilities Act; any accrued benefit under any
other ISP employee welfare benefit plan as that term is defined by Section 3(1)
of the Employment Retirement Income Security Act; any provision of the
Constitution of the United States, the States of New Jersey, or any other state;
any provision of any other law, common or statutory, of the United States, New
Jersey, or any other state, including New Jersey's Law Against Discrimination
("LAD") and New Jersey's Conscientious Employee Protection Act ("CEPA"); any
contract of employment, expressed or implied; as well as any and all claims
alleging wrongful termination, or any other tortious or wrongful conduct or
omission, in any way relating to or arising out of Employee's hiring by ISP, his
employment with ISP or his separation of employment. Excepted from this release
is any claim or right which cannot be waived by law, including
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claims arising after the effective date of this Agreement and any rights of
defense and indemnification under ISP's certificate of incorporation, by-laws,
and resolutions. The Parties intend Employee's release as set forth in this
paragraph 7 to be general and comprehensive in nature and to release all claims
and potential claims by Employee to the maximum extent permitted by law.
8. Employee acknowledges that the only consideration for signing this
Agreement and all that he is ever to receive from Releasees are expressed in the
terms stated in this Agreement and that no other promises or agreements of any
kind have been made to Employee by any person or entity whatsoever to cause him
to sign this Agreement, and that Employee has signed this Agreement as a free
and voluntary act. Employee further acknowledges that pursuant to the terms of
this Agreement, he is and will be receiving pay, benefits, and other
consideration from ISP which are substantially above and beyond the pay,
benefits, or other consideration to which he, in the absence of this Agreement,
would be entitled. Employee further acknowledges that ISP is being induced to
provide the payments, benefits, and other consideration set forth in this
Agreement by Employee's promises, including the full and comprehensive release
provided in Paragraph 7.
9. Employee hereby waives any and all rights or claims that he may
have to reinstatement, employment or reemployment with ISP.
10. Employee agrees that this Agreement shall not be offered, used or
considered as evidence in any proceeding against ISP except to the extent
necessary to enforce the terms of this Agreement.
11. This Agreement is not, and shall not, be construed as an admission
by ISP of any acts or omissions that could or might be alleged with respect to
any matter concerning Employee's employment or separation of employment with
ISP. Without limiting the foregoing, this Agreement is not, and shall not be,
construed as an admission by ISP of (i) any violation of any law, regulation, or
ordinance; or (ii) any wrongful act toward Employee; or (iii) any liability
whatsoever for any damages or injuries that are or could be claimed by him with
respect to his hiring by ISP, his employment, or the separation of his
employment.
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12. Employee represents and warrants that he has not filed or
otherwise initiated any complaint, charge, or lawsuit with any court, government
agency, or other entity relating to any claims being released by him under this
Agreement, and that he shall not file any such complaint, charge or lawsuit at
any time hereafter relating to any claims being released by him herein. If
Employee fails to comply with this Paragraph 12 by initiating a complaint,
charge, or lawsuit, he shall immediately withdraw such complaint, charge or
lawsuit, and shall pay all of ISP's costs in defending against that complaint,
charge, or lawsuit, including without limitation, reasonable attorneys' fees.
13. After the Separation Date, upon reasonable notice and without any
additional consideration except for reimbursement of authorized expenses,
Employee agrees to cooperate to a reasonable extent with ISP and to meet with
ISP representatives in connection with any legal matter in which Employee may
potentially be called as a witness for ISP. The foregoing does not create any
employment relationship between him and ISP. ISP agrees that it will reimburse
Employee for any expenses incurred by him at ISP's request in connection with
his cooperation as provided herein, provided Employee submits appropriate and
supporting documentation to ISP in a reasonable and timely manner. ISP agrees to
cooperate with Employee to minimize any disruption to Employee caused by his
cooperation with ISP in such matters as provided herein.
14. Employee and ISP agree not to make any defamatory or derogatory
statement, written or verbal, to any third parties regarding the facts or
circumstances surrounding this Agreement or any other defamatory or derogatory
statement that may be harmful to the other or may be injurious to the goodwill,
reputation or business standing of the other.
15. If any one or more of the provisions contained herein shall for
any reason be held to be unenforceable in any respect under the law of any state
or of the United States of America, such unenforceability shall not affect any
other provision of this Agreement, and said provision shall be ineffective, to
the extent of such unenforceability, with respect only to that jurisdiction
holding the provision to be unenforceable.
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16. The construction, interpretation and performance of this Agreement
shall be governed by the laws of the State of New Jersey, and any action to
enforce any rights hereunder may only be commenced and prosecuted in the State
of New Jersey.
17. This Agreement contains the entire agreement between Employee and
ISP and fully supersedes any and all prior agreements or understandings
pertaining to the subject matter hereof. Employee represents and acknowledges
that in executing this Agreement he has not relied upon any representation or
statement not set forth herein, made by any of the Releasees or by any of the
Releasees' agents, representatives, or attorneys with regard to the subject
matter of this Agreement. No other promise or agreement shall be binding unless
in writing and signed by the Parties hereto.
18. All references to ISP in this Agreement include: (a) any
affiliated, related, subsidiaries, or parent companies of ISP Management
Company, Inc.; (b) any past or present officers, directors, shareholders,
attorneys, insurers, agents, representatives, and/or employees of ISP and or its
parents, subsidiaries, affiliates and related companies; and (c) any and all
respective predecessors, successors and assigns, and any and all benefit plans,
of ISP and/or its affiliated companies (as well as the past or present officers,
directors, shareholders, agents, representatives, and employees of such entity).
19. BY SIGNING THIS SEPARATION AGREEMENT AND GENERAL RELEASE, EMPLOYEE
STATES THAT:
(a) HE HAS READ IT;
(b) HE UNDERSTANDS AND KNOWS THAT HE IS GIVING UP
CERTAIN RIGHTS;
(c) HE AGREES WITH EVERYTHING IN IT;
(d) HE IS AWARE OF HIS RIGHT TO CONSULT AN ATTORNEY
BEFORE SIGNING IT; AND
(e) HE HAS SIGNED IT KNOWINGLY AND VOLUNTARILY.
ISP Management Company, Inc.
WITNESSED:
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx Xxxx Xxxxxxx
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Date: September 15, 2005 Date: September 15, 2005
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WITNESSED:
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxxxx Xxxxxxxx
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Xxxxxxxxx Xxxxxxxx
Date: September 15, 2005 Date: September 15, 2005
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