AGREEMENT AND GENERAL RELEASE
-----------------------------
Calgon Carbon Company, on behalf of itself and its affiliates,
subsidiaries, divisions, successors and assigns and the past and present
employees, officers, directors and agents thereof (referred to collectively
throughout this Agreement and General Release as "Calgon"), and Xxxxx Xxxxxxx
("Xx. Xxxxxxx"), agree and intend to be legally bound by the following:
1. Last Day of Employment Xx. Xxxxxxx'x last day of employment with
Calgon is February 21, 2003. Xx. Xxxxxxx resigns as President and Chief
Executive Officer of Calgon, and as a member of its Board of Directors,
effective that date, and such resignations are hereby accepted by Calgon, and
Xx. Xxxxxxx agrees that he has been so notified as of that date.
2. Consideration. In consideration for signing this Agreement and General
Release and in compliance with the promises made herein, the parties agree that:
A. Calgon will pay to Xx. Xxxxxxx a xxxxxxxxx payment in the amount
of $1,825,000, less deductions required by law, within thirty (30) days of the
effective date of this Agreement and General Release.
B. Calgon agrees to provide Xx. Xxxxxxx with his current Life
Insurance and Long Term Disability Insurance coverage through December 31, 2005,
unless Xx. Xxxxxxx accepts other employment providing such benefits, at which
time Calgon will discontinue providing these coverages. Calgon agrees to pay the
premium costs for medical, dental and vision/Rx coverages currently provided to
Xx. Xxxxxxx and his dependents through December 31, 2005, unless Xx. Xxxxxxx
accepts other employment providing such benefits, at which time Calgon will no
longer pay for such coverage. Appropriate COBRA notices will be provided, such
that the provision of such benefits is coterminous with, and not in addition to,
any COBRA benefits continuation period.
C. In consideration of this Agreement and General Release,
Calgon hereby waives its right to assert that Xx. Xxxxxxx'x separation from
employment is for "cause" as that term is used in relation to Paragraph 4(a)(i)
that certain employment agreement between Calgon and Xx. Xxxxxxx amended as of
January 1, 2002 ("Employment Agreement"), and further waives the benefit of the
right to terminate the payment of severance pay upon Xx. Xxxxxxx'x reemployment,
as set forth in Paragraph 5(c) of the Employment Agreement. Xx. Xxxxxxx and
Calgon further agree that the consideration set forth in Paragraphs 2A and B
above includes compensation for severance payments, benefit continuation and any
notice period under the Employment Agreement, and that no event constituting a
"Change of Control" under the Employment Agreement has occurred, nor is in the
process of occurring.
D. Xx. Xxxxxxx affirms that after receiving his final paycheck
and the final severance pay referred to herein, he has been paid and/or has
received all leave (paid or unpaid), compensation, wages, bonuses, commissions,
pension and/or retirement benefits and/or any other benefits to which he may be
entitled and that no other leave (paid or unpaid), compensation, wages, bonuses,
commissions and/or benefits are due to him, except as specifically provided in
this Agreement and General Release. Xx. Xxxxxxx agrees that his obligations
under the Employment Agreement remain in full force and effect, and are not
limited or extinguished by
this Agreement and General Release. Xx. Xxxxxxx acknowledges that, except for
stock options vested as of February 21, 2003, he has no right to, nor shall he
receive, any further stock options or stock from Calgon, and all unvested
existing options and restricted stock are forfeited.
E. To the extent permitted by law, Calgon will continue to
provide Xx. Xxxxxxx indemnity in accordance with the provisions of Article VIII
of Calgon's Bylaws in connection with his service as an officer and director to
Calgon and its subsidiaries prior to the date hereof; provided, however, that
such indemnity shall not extend to any claims relating to or arising from
Calgon's enforcement of this Agreement and General Release or of Cederna's
obligations under the Employment Agreement as set forth in Paragraph 2D above.
3. Adequate Consideration. Xx. Xxxxxxx agrees and acknowledges that the
consideration to be provided to him in connection with this Agreement and
General Release and the terms of this Agreement and General Release are adequate
consideration to settle, extinguish and release any and all of Xx. Xxxxxxx'x
claims, known or unknown, against Calgon.
4. General Release of Claims.
X. Xxxxxxx. Xx. Xxxxxxx knowingly and voluntarily releases and
forever discharges Calgon of and from any and all claims, known and unknown,
which Xx. Xxxxxxx, his heirs, executors, administrators, successors and assigns
(referred to collectively throughout this Agreement as "Xx. Xxxxxxx") have or
may have against Calgon as of the date of the signing of this Agreement and
General Release, including, but not limited to, any claims for pension or
retirement benefits, any alleged violation of The National Labor Relations Act,
Title VII of the Civil Rights Act of 1964, The Civil Rights Act of 1991, The
Civil Rights Act of 1866, Sections 1981 through 1988 of Title 42 of the United
States Code, The Employee Retirement Income Security Act of 1974, The
Immigration Reform and Control Act, The Americans with Disabilities Act of 1990,
The Equal Pay Act, the Rehabilitation Act of 1973, Executive Order 11246 and any
other Executive Order, The Fair Labor Standards Act, The Occupational Safety and
Health Act, The Family and Medical Leave Act of 1993, The Age Discrimination in
Employment Act, The Xxxxxxxx-Xxxxx Act, The Older Workers' Benefit Protection
Act, The Pennsylvania Human Relations Act, The Pennsylvania Wage Payment and
Collection Law, The Pittsburgh City Code, Chapters 651-659; and any other
federal, state or local civil or human rights law or any other local, state or
federal law, regulation or ordinance, all as amended; any public policy,
contract, tort, or common law claim, including the Employment Agreement; or any
allegation seeking costs, fees, or other expenses including attorneys' fees
incurred in these matters. This Agreement and General Release fully and finally
settles, releases and fulfills any and all obligations of Calgon to Xx. Xxxxxxx
under the Employment Agreement.
This Agreement and General Release does not include any claims
relating to or arising from Xx. Xxxxxxx'x enforcement of this Agreement and
General Release.
B. Calgon. Calgon knowingly and voluntarily releases and
forever discharges Xx. Xxxxxxx of and from all claims, known and unknown, which
Calgon or its subsidiaries have or may have against Mr. Xx. Xxxxxxx as of the
date of signing of this Agreement and General Release including, without
limitation, all claims directly or indirectly related to or arising out of
matters relating in any way to Xx. Xxxxxxx'x employment with or termination from
Calgon;
provided, however, that Calgon's release and discharge shall not include (i) any
criminal conduct by Xx. Xxxxxxx, or any conduct involving willfull or
intentional harm to Calgon and/or its subsidiaries (ii) any claims relating to
or arising from Calgon's enforcement of this Agreement and General Release or of
Cederna's obligations under the Employment Agreement as set forth in Paragraph
2D above.
5. No Claims Exist. Xx. Xxxxxxx confirms that no claim, charge,
complaint, or action has been filed in any forum or form against Calgon. In the
event that any such claim, charge, complaint or action is filed by Xx. Xxxxxxx
against Calgon related to any matter at any time released herein, Xx. Xxxxxxx
waives the right to recover any relief or recovery therefrom, including costs
and attorneys' fees. Xx. Xxxxxxx agrees not to file a lawsuit against Calgon in
any court of the United States or any State thereof concerning any matter
released in this Agreement and General Release. Notwithstanding any other
language of this Agreement and General Release, the parties understand that this
Agreement and General Release does not prohibit Xx. Xxxxxxx from filing an
administrative charge of alleged employment discrimination. However, by signing
this Agreement and General Release, Xx. Xxxxxxx will have waived any right he
had to bring a lawsuit or obtain a recovery if an administrative agency pursues
a claim against Calgon based on any actions taken by Calgon up to the date of
the signing of this Agreement and General Release. This Agreement and General
Release extinguishes all disputes, claims, charges, complaints, actions, or
causes of action as of the effective date of this Agreement and, therefore, Xx.
Xxxxxxx reserves the right to bring an action to enforce the terms of this
Agreement and General Release, if that should be necessary.
6. Confidential Information. Xx. Xxxxxxx acknowledges that all knowledge
and information which he acquired in the course of his employment with Calgon
relating to Calgon's financial information and data, personnel and compensation
information, marketing data or information, client identities and business
information (hereinafter collectively referred to as "Confidential Information")
are the valuable property of Calgon. Xx. Xxxxxxx agrees not to disclose,
divulge, or publish, to any person or entity, any of the aforementioned
Confidential Information, recognizing that this would cause irreparable harm to
Calgon. Xx. Xxxxxxx further agrees not to use any of said Confidential
Information against Calgon or any of its employees without the express, written
consent of Calgon or to otherwise take any action which is prejudicial in any
manner to the interests of Calgon in preserving said Confidential Information.
Xx. Xxxxxxx shall return any Confidential Information obtained, developed, or
received by him during the course of employment with Calgon (including, but not
limited to, all originals and copies of any materials and documents which refer
or relate to Calgon's financial status, business, employees, client, or
projects) on or before March 1, 2003.
7. Confidentiality. Xx. Xxxxxxx agrees not to disclose to any third
person any information regarding the existence or substance of this Agreement
and General Release, except to the tax advisor, spouse and/or attorney with whom
Xx. Xxxxxxx chooses to consult regarding consideration of this Agreement and
General Release. To the extent that Xx. Xxxxxxx discloses information to the
aforementioned persons, Xx. Xxxxxxx will advise them that they must not disclose
said information, they shall be bound by this confidentiality provision and Xx.
Xxxxxxx shall be responsible for any breach of this paragraph by those to whom
such disclosures are made. Xx. Xxxxxxx may provide relevant information about
this Agreement and General Release to appropriate taxing authorities without
violating this confidentiality provision. If
Xx. Xxxxxxx receives a subpoena or other process seeking the production of, or
information or sworn testimony about, this Agreement and Release, Xx. Xxxxxxx
promises to give Calgon immediate written notice of the receipt of such subpoena
or process so that Calgon may object to or otherwise oppose the production of
this Agreement and General Release or information or sworn testimony about it.
Written notice to Calgon will be sent to its General Counsel.
8. No Participation In Claims. Xx. Xxxxxxx understands that if this
Agreement and General Release were not signed, Xx. Xxxxxxx would have the right
to voluntarily assist other individuals or entities in bringing claims against
Calgon. Xx. Xxxxxxx further understands and agrees that he waives any such right
and will not provide any such assistance, except Xx. Xxxxxxx may provide
information pursuant to any valid subpoena or compulsory process.
9. No Negative or Derogatory Comments.
X. Xxxxxxx. Xx. Xxxxxxx agrees not to make any negative or
derogatory comments, directly or by innuendo, about Calgon's business and
investment practices and philosophies.
B. Calgon. Calgon agrees not to make any negative or derogatory
comments, directly or by innuendo, about Xx. Xxxxxxx; provided, however, that
Calgon will issue a press release in the form shown to Xx. Xxxxxxx regarding the
resignation, Calgon has the right to describe the resignation and this Agreement
and General Release in its proxy statement as well as to publicly file a copy of
this Agreement and General Release with the Securities and Exchange Commission
and Calgon has the right to respond fully and completely to any governmental
inquiry or judicial process.
10. Governing Law and Interpretation. This Agreement and General
Release shall be governed and conformed in accordance with the laws of the
Commonwealth of Pennsylvania, without regard to its conflict of laws provisions,
except to the extent federal law applies. Should any provision of this Agreement
and General Release be declared illegal or unenforceable by any court of
competent jurisdiction and cannot be modified to be enforceable, excluding the
general release language, such provision shall immediately become null and void,
leaving the remainder of this Agreement and General Release in full force and
effect.
11. Nonadmission of Wrongdoing. Xx. Xxxxxxx agrees that neither this
Agreement and General Release nor the furnishing of the consideration for this
Release shall be deemed or construed at any time for any purpose as an admission
by Calgon of any liability or unlawful conduct of any kind.
12. Amendment. This Agreement and General Release may not be
modified, altered, or changed except upon express written consent of both
parties wherein specific reference is made to this Agreement and General
Release.
13. Entire Agreement. This Agreement and General Release sets forth
the entire agreement between the parties hereto, and fully supersedes any prior
agreements or understandings between the parties. Xx. Xxxxxxx acknowledges that
he has not relied on any representations, promises, or agreements of any kind
made to him in connection with his
decision to sign this Agreement and General Release, except for those set forth
in this Agreement and General Release.
14. Evaluation of Agreement. Xx. Xxxxxxx acknowledges that he has been
advised to consult an attorney of his choice about this Agreement and General
Release. Xx. Xxxxxxx further acknowledges that he has been given twenty-one (21)
days to consider the terms of this Agreement and General Release provided to him
by Calgon on February 21, 2003, and he was advised to consult with counsel
concerning its terms. Any changes to the original offer made by Calgon do not
restart the running of the twenty-one (21) day period. If Xx. Xxxxxxx executes
this Agreement and General Release, he acknowledges that he does so freely and
voluntarily, solely because he already fully and carefully considered the
Agreement and General Release before signing it.
15. Time to Revoke. Xx. Xxxxxxx acknowledges that he has also been
informed that for a period of seven (7) days following his signing this
Agreement and General Release, he may revoke his acceptance in writing, and this
Agreement and General Release will not be effective until such seven (7) day
period has expired. If such 7th day is a Saturday, Sunday, or legal holiday,
then any revocation may be delivered on the next following day which is not a
Saturday, Sunday, or legal holiday. Any revocation within this period must be
submitted in writing to Xx. Xxxxxx XxXxxxxx, and state "I hereby revoke my
acceptance of my Agreement and General Release." Xx. Xxxxxxx will not receive
the consideration referred to in this Agreement and General Release and Calgon
will promptly terminate his employment if he does revoke this Agreement and
General Release. If he does not revoke this Agreement and General Release, it
shall become irrevocable after the expiration of the 7th day.
Witness:
/s/ Xxxxxxx X. Xxxxxxx 2/24/03 /s/ X X Cerderna
-------------------------------------- ------------------------------
XXXXX X. XXXXXXX
/s/ Xxxx X. Xxxxxx 2/24/03 February 24, 2003
-------------------------------------- ------------------------------
Date Date
Witness: CALGON CARBON CORPORATION
By: Xxxxxxx X. Xxxxxxx 2/24/03 /s/ Xxxxxx X. XxXxxxxx
------------------------------ -----------------------
Title: Chairman Executive Committee
and Director
Date: February 24, 2003
