SEPARATION AGREEMENT AND GENERAL RELEASE
THIS SEPARATION AGREEMENT AND GENERAL
RELEASE, dated as of JANUARY 19, 2009 (the “Agreement”), by and
between CHEMTURA CORPORATION, a DELAWARE corporation (the “Company”) and XXXX X.
XXXXXXXX (the “Executive”).
WHEREAS, the Company wishes to
terminate the Executive’s employment as set forth in this Agreement;
and
WHEREAS, except as otherwise set forth
herein, the parties intend that this Agreement shall set forth the terms of the
Executive’s termination and that this Agreement shall supersede all prior
agreements between the parties regarding the subject matter contained
herein.
NOW, THEREFORE, in consideration of the
covenants and agreements hereinafter set forth in this Agreement, the parties
hereto hereby agree as follows:
1. Termination. The
Executive’s employment with and service to the Company and each of its
subsidiaries and affiliates (collectively, the “Company Group”),
hereby is terminated and the Executive hereby resigns from all offices and
directorships with the Company Group, effective as of January 19, 2009 (the
“Separation
Date”). The Company represents and warrants that within 30
days after the Effective Date the Executive will be formally removed as an
officer of the Company and as an officer and/or director of each member of the
Company Group for which he held such office and/or designation as of the
Separation Date.
2. Separation Pay and
Benefits. In consideration of the covenants set forth herein
and the waiver and release of claims set forth below, and provided, that the Executive does not
revoke this Agreement during the Revocation Period (as defined below), the
Company shall provide the Executive with the following severance payments and
benefits:
(a) Separation
Pay.
(i) First Separation
Payment. The Company shall pay the Executive separation pay equal to 52
weeks of his base salary at the current annual rate of $371,000. This
separation pay will be paid in substantially equal installments, in accordance
with the Company’s regular payroll practices (but in no event less than
biweekly), and commencing on the next regularly scheduled payroll date that is
at least ten (10) business days after the Effective Date, as defined below (the
“Severance
Period”); provided,
however, that all separation pay shall be paid by and the Severance
Period shall not extend past January 31, 2010. In the event of the
Executive's death prior to the end of the Severance Period, the Company shall
pay any remaining separation pay described above to the Executive's estate in
accordance with the payment schedule described above.
(ii) Second Separation
Payment. If the Executive is not employed or engaged in self-employment
(as described in Addendum A) on or prior to February 1, 2010, then beginning
with the first payroll cycle after February 1, 2010 the Executive shall receive
26 weeks of his base salary ($185,500), paid in substantially equal
installments, in accordance with the Company’s normal payroll
practices.
(iii) Notice to the
Company. The Executive shall be required to provide written
notice to the Company within 10 days of the date upon which the Executive begins
new employment or engages in self-employment (as described in Addendum
A). The Executive shall be liable to the Company for any payments
which the Executive receives hereunder in violation of the provisions of this
Section 2(a) on account of the Executive’s failure to provide the Company with
written notice pursuant to this Section 2(a)(iii).
(b) Annual
Bonus. The Executive will continue to be eligible for
benefits, if any, under the Chemtura Corporation 2008 Management Incentive
Program (the “2008
MIP”), the determination and payout of any such benefits to be made in
accordance with the terms and conditions of the 2008 MIP. The
Executive agrees that he will not be eligible for any other bonus for calendar
year 2008, or any prior or subsequent year.
(c) Treatment of Equity-Based
Compensation. Except as otherwise provided in this Section
2(c), the Executive’s rights as of the Separation Date with respect to all
equity-based compensation awards previously granted or awarded to the Executive
under any equity-based compensation plans of the Company, including, without
limitation, the 1998 Long-Term
Incentive Plan (the “1998
LTIP”) and the 2006 Chemtura Corporation Long-Term Incentive
Plan (the “2006
LTIP”, and, together with the 1998 LTIP and the individual grant
documents, the “Equity
Plans”), including the Executive’s rights with respect to vesting,
exercise and expiration of such awards, shall be determined in accordance with
and subject to the terms of the applicable Equity Plan.
(i) Stock
Options. All employee stock options granted under the Equity
Plans that are outstanding but unvested as of the Separation Date shall be
forfeited as of the Separation Date. Attached hereto as Attachment 1
is a list of the Executive’s outstanding, vested and unexercised stock option
awards as of the Separation Date and the expiration date for each such
award.
(ii) Restricted Stock
Units. All grants of restricted stock units under the Equity
Plans that are outstanding but unvested as of the Separation Date shall be
forfeited as of the Separation Date. Attached hereto as Attachment 2
is a list of the Executive’s outstanding, unvested restricted stock unit awards
as of the Separation Date.
(d) 401(k) Plan. Supplemental
Savings Plan. The Executive shall remain eligible
to participate in the Chemtura Corporation Employee Savings Plan (the “401(k) Plan”) and the
Chemtura Corporation Supplemental Savings Plan (the “SSP”) until the
Separation Date, in accordance with the terms of the 401(k) Plan and the SSP,
respectively. The Executive shall be entitled to any benefits under
the 401(k) Plan and the SSP, respectively, which have vested on or prior to the
Separation Date, and shall cease to accrue benefits under the 401(k) Plan and
the SSP, respectively, on the Separation Date. At the Executive’s
direction and in accordance with the terms of the 401(k) Plan, the Company will
subsequent to the Separation Date, cause the 401(k) Plan to distribute an amount
equal to the then-vested
account balance in the Executive’s 401(k) Plan account. Such amount,
less any amounts which the Company shall be required to withhold pursuant to
applicable law, will be paid to the Executive or to a qualified rollover
account, as the Executive shall elect. In addition, in accordance
with the Executive’s prior election and otherwise in accordance with the terms
of the SSP, the Company will cause the SSP to pay to the Executive the vested
balance in the Executive’s SSP Account, after withholding such amount as is
required to satisfy tax withholding requirements. A statement of the
Executive’s benefits under these Plans shall be provided to the Executive
separately.
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(e) Medical, Dental and Vision
Insurance. The Executive and, as applicable, his eligible
dependents shall continue to be eligible to participate in the Company’s group
medical, dental and vision insurance programs at the active employee rates,
until the earlier of the end of the month in which the Executive no longer is
eligible for the separation payments described above in Section 2, and the date
on which the Executive becomes eligible to participate in another group medical,
dental or vision plan, provided, that the Executive and, as applicable, his
dependents, are eligible for and have elected to participate in such Company
group health programs as of the Separation Date. The Executive agrees
to promptly notify the Company in writing in the event that the Executive and/or
his eligible dependents becomes eligible for coverage under another group
medical, dental or vision plan, as the case may be, following the Separation
Date. Any medical, dental or vision coverage elected by the Executive
for him and/or his eligible dependents pursuant to this Section 2(e) shall be
pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), and will run
concurrent with and be applied toward any continuation coverage period for which
the Executive and/or his eligible dependents are eligible under
COBRA. Specific information regarding COBRA will be sent to the
Executive separately.
(f) Accrued
Vacation. The Company shall pay the Executive by such date as
required by applicable law, for any vacation that is accrued but unused as of
the Separation Date, minus withholding and other applicable
deductions.
(g) Outplacement
Services. Up to 12 months of outplacement services, measured
from the Separation Date, will be made available to the Executive through the
Company’s vendor, Xxx Xxxxx Xxxxxxxx. The Executive must use the
Company’s vendor, and the value of this benefit will not be available to the
Executive in cash. More detail regarding this benefit, including when
and where it will be available to the Executive, will be provided
separately.
(h) No Other Compensation or
Benefits. Except as otherwise specifically provided herein or
as required by Section 4980B(f) of the Code (relating to COBRA coverage) or
other applicable law, the Executive agrees that he shall not be entitled to any
compensation or benefits under or to participate in any past, present or future
employee benefit plans programs or arrangements of any member of the Company
Group (including, without limitation, pursuant to the Chemtura Corporation
Executive and Key Employee Severance Plan, or any other plan, program or
arrangement providing severance or similar benefits) on or after the Separation
Date, or otherwise arising out of or relating to the Executive’s separation from
employment with the Company Group, or the actions contemplated by this
Agreement, and the Executive expressly waives any right to such compensation,
benefits and participation. Nothing in this Agreement shall require
the Company Group or any member thereof to continue any employee benefit plan,
or obligate the Company Group or any member thereof to provide or make available
to the Executive any particular employee benefit, and the Company reserves the
right to amend, modify or terminate any employee benefit plan, program or
arrangement at any time, for any reason.
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3. Return of
Property. The Executive shall, on or prior to the Separation
Date, surrender to the Company any and all property of the Company Group in the
Executive’s possession or under his control and all property made available to
the Executive in connection with her employment by the Company, including,
without limitation, all (i) confidential or proprietary information concerning
the Company Group or any of its customers or operations, (ii) original and
duplicate copies of all of his work product, (iii) keys, security access codes,
Company credit cards, files, calendars, books, records, notes, notebooks,
customer lists, proposals to customers, manuals, computer programs, papers,
electronically stored information and any other magnetic and other media
materials, including any duplicate copies, as applicable, (iv) computer
equipment (including any desktop and/or laptop computers, handheld computing
devices, home systems, printers, computer disks and diskettes) and fax machines;
provided, however, that
the Company agrees to take all reasonable steps necessary to identify and either
remove or allow the Executive to remove the Executive’s personal information
currently stored on the Company servers and/or the computer provided by the
Company to the Executive during his employment. The Executive agrees
that majority of such personal information is found on two personal directories
which the Company agrees to copy and provide to the Executive.
4. Cooperation. From
and after the Separation Date, the Executive shall cooperate in all reasonable
respects with the Company Group and their respective directors, officers,
employees, attorneys and experts in connection with the conduct of any action,
proceeding, investigation or litigation involving the Company Group, and about
which the Executive may have relevant information. Such cooperation
and assistance shall be provided at a time and in a manner which is mutually and
reasonably agreeable to the Executive and the Company, and shall include
providing information and documents, submitting to depositions, providing
testimony and general cooperation to assist the Company. Nothing herein shall be
deemed to require the Executive to provide legal advice or counseling to the
Company Group.
5. Unfavorable Comments;
Confidentiality of this Agreement.
(a) Public Comments by the
Executive. For a period of two (2) years following the
Separation Date, the Executive agrees to refrain from making, directly or
indirectly, now or at any time in the future, whether in writing, orally or
electronically any comment concerning the Company Group or any of
their current or former directors, officers, employees or shareholders, that
could reasonably be expected to be materially detrimental to the business or
financial prospects or reputation of the individual or Company Group. Nothing
herein shall prohibit or restrict the Executive from performing services as an
attorney to a third party client, subject to codes of professional
responsibility, cannons of ethics and other applicable rules and regulations
governing attorney conduct and the practice of law.
(b) No
Publications. The Executive covenants and agrees that, for a
period commencing on the Separation Date and continuing for one year thereafter,
unless he gets written permission in advance from the Company, he will refrain
from publishing any book, article or other written material involving or
relating to the Company or any other member of the Company Group, their
respective directors, officers or employees (any such book, article or other
written material, a “Publication”), and
from collaborating in or providing any information in connection with the
preparation of a Publication that is distributed or disseminated to the general
public or any group or segment thereof, including, without limitation, any trade
or industry. It shall not be a violation of this covenant (i) if the
Executive provides information to a person whom he does not know, and has no
reasonable basis for knowing, is a journalist, reporter, author, editor,
publisher or other person involved in print or other media (each, an “Author”), unless the
Executive knows, or has a reasonable basis for knowing, that such person intends
to forward such information to an Author who uses it in a Publication involving
or relating to the Company or any other member of the Company Group, their
respective directors, officers or employees or (ii) if the Executive provides
information that does not involve or relate to the Company or any other member
of the Company Group, their directors, officers or employees to an Author and
does not know, and has no reasonable basis for knowing, that such Author will
use such information in a Publication involving or relating to the Company or
any other member of the Company Group, their respective directors, officers or
employees.
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(c) Confidentiality of this
Agreement. The Executive agrees that the terms of this
Agreement (other than the fact of the Executive’s separation of employment from
the Company and the date thereof) are confidential and that the Executive may
not disclose any of such terms to any other person other than his attorney,
financial or tax adviser, accountant or spouse, provided, that the Executive
shall be responsible for any breach of confidentiality by any such
individual. The Executive agrees that he shall instruct his attorney,
financial and tax adviser, accountant and spouse not to disclose such terms to
any other person.
6. Confidentiality;
Non-Solicitation.
(a) The
Executive agrees that he will not at any time, directly or indirectly, reveal to
any person, entity or other organization (other than the Company Group or their
respective employees, officers, directors, shareholders or agents) or use for
the Executive’s own benefit any Confidential Information.
(i) For
purposes of this Agreement, “Confidential
Information” means any and all business and technical information,
know-how, or trade secrets, including all technical and non-technical data
whether in tangible or intangible form, pertaining in any manner to the
businesses of the Company Group, including the Company Group’s business
associates, clients, consultants, customers, and employees, which is considered
to be private, confidential, proprietary, or a trade secret, either to the
Company Group, or other non-affiliated third parties. Confidential Information
includes, but is not limited to, information relating to financial, marketing,
and business plans including projections and estimates; sales and marketing
figures, plans and methods; promotional, business and technology strategies;
contracts including licenses, joint development agreements, supply contracts,
and settlement agreements; customer, distributor, and supplier information,
lists, usages or requirements; all information relating to existing or
contemplated businesses, products, or processes including proprietary product
samples, product testing and registration data, and production and quality
control data; all research and development data and results, negative or
positive, including inventions whether patentable or not, discoveries, writings,
technical and business innovations, improvements, and developments; all
apparatus, designs, devices, equipment, formulae including product formulae,
tools, machines, software including process control software, and written works;
and corporate records, procedures and processes including accounting procedures,
personnel documents and history, business records including tax records, and any
similar corporate record.
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(ii) Notwithstanding
the foregoing, information, data, know-how or knowledge shall not be considered
Confidential Information if: (a) the information at the time of disclosure is in
the public domain through no fault of Executive or any breach of this Agreement
by the Executive; (b) the information received from a third party outside of the
Company Group is disclosed without a breach of any confidentiality obligation;
(c) the information is approved for release by written authorization of
Chemtura; or (d) the information may be required by law or an order of any
court, agency or proceeding to be disclosed., provided further, however,
that the Executive will use best efforts to preserve the confidentiality of such
Confidential Information to be disclosed, including, without limitation, by (x)
cooperating with the Company Group to obtain a protective order or other
appropriate relief, (y) disclosing only that portion of such Confidential
Information as is legally required by binding order, and (iii) exercising
reasonable efforts to obtain reliable assurance that confidential treatment
shall be accorded any such Confidential Information.
(iii) For
purposes of this Section 6(a) and the entirety of Section 6 of this Agreement,
the Company Group shall be interpreted to include any predecessor or successor
of the Company Group or any member thereof.
(b) Non-Solicitation. The
Executive agrees that for the period commencing on the Separation Date and
continuing for one year thereafter (the “Restricted Period”),
the Executive shall not, without the prior written consent of the Company (which
consent the Company may grant or deny in its sole discretion), directly or
indirectly, whether on his own, in association with or on behalf of any other
person, firm, corporation or other business organization, whether as an
individual proprietor or entrepreneur or as an officer, employee, director,
partner, consultant, agent, stockholder or in any other capacity: (i) solicit,
hire, or endeavor to entice away from the Company Group or any member thereof
any person or entity who is, or at any time during the period beginning 12
months prior to the Separation Date and continuing through the end of the
Restricted Period was employed by or was an agent or key consultant of the
Company Group or any member thereof; or (ii) solicit, hire, or endeavor to
entice away from the Company Group or any member thereof, any person or entity
who is, or at any time during the period beginning 12 months prior to the
Separation Date and continuing through the end of the Restricted Period was (or
to the Executive’s knowledge or the knowledge of the public was reasonably
anticipated to become), a customer or client, supplier, licensee or other
business relation of the Company Group or any member thereof. As used
herein the term “indirectly” shall
include without limitation, the Executive’s permitting the use of the
Executive’s name to solicit away from or to interfere with any employee or
business relationship of the Company Group.
(c) The
Executive acknowledges that he has carefully read and considered the provisions
of this Section 6 and, having done so, agrees that the restrictions set forth in
this Section 6 are fair and reasonable and are reasonably required for the
protection of the interests of the Company Group, and do not preclude the
Executive from earning a livelihood, nor do they unreasonably impose limitations
on the Executive’s ability to earn a living. The Executive further
agrees that the potential harm to the Company Group from the non-enforcement of
these restrictions outweighs any potential harm to the Executive. The
Executive acknowledges that he has received and is receiving good, valuable and
sufficient consideration in exchange for the provisions of this Section
6.
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(d) If
any of the provisions of this Section 6 are determined to be invalid or
unenforceable to any extent, by reason of being vague or unreasonable as to
area, duration or scope of activity, that portion of this Section 6 shall be
considered divisible and shall immediately be reformed to the maximum area,
duration and scope of activity as shall be determined to be enforceable by the
court having jurisdiction over the matter. The Executive agrees that
any such reformation shall be valid and binding as though any invalid or
unenforceable provision had not been included herein.
(e) In
the event the Executive violates any provision of this Agreement as to which
there is a specific time period during which the Executive is prohibited from
taking certain actions or from engaging in certain activities, then in such
event, such violation will toll the running of the applicable time period from
the date of such violation until such violation will cease.
7. Exclusive
Property. The Executive confirms that all Confidential
Information is and shall remain the exclusive property of the Company
Group. All business records, papers and documents kept or made by the
Executive relating to the business of the Company Group shall be and remain the
property of the Company Group. The Executive further confirms that,
on or prior to the Separation Date, the Executive shall have surrendered to the
Company all copies and extracts of any written Confidential Information acquired
or developed by the Executive during any such employment, shareholding or
association, and that the Executive has not removed or taken from the premises
of any member of the Company Group any written Confidential Information or any
copies or extracts thereof. The Executive shall promptly make all
disclosures, execute all instruments and papers and perform all acts reasonably
necessary to vest and confirm in the Company Group, fully and completely, all
rights created or contemplated by this Section 7.
8. Certain
Remedies. Without intending to limit the remedies available to
the Company Group, the Executive agrees that a breach of any of the covenants
contained in this Agreement may result in material and irreparable injury to the
Company Group for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of such a breach or threat thereof, any member of the Company Group shall be
entitled to seek a temporary restraining order or a preliminary or permanent
injunction, or both, without bond or other security, restraining the Executive
from engaging in activities prohibited by the covenants contained in this
Agreement or such other relief as may be required specifically to enforce any of
the covenants contained in this Agreement. Such injunctive relief in
any court shall be available to the Company Group in lieu of, or prior to or
pending determination in, any arbitration proceeding.
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9. Release.
(a) In
consideration of the payments and benefits provided to the Executive under this
Agreement, the Executive agrees to accept the compensation, payments, benefits
and other consideration provided for in this Agreement in full resolution and
satisfaction of, and hereby IRREVOCABLY AND UNCONDITIONALLY RELEASES, REMISES
AND FOREVER DISCHARGES the Company Group from any and all agreements, promises,
liabilities, claims, demands, rights and entitlements of any kind whatsoever, in
law or equity, whether known or unknown, asserted or unasserted, fixed or
contingent, apparent or concealed, which the Executive, his heirs, executors,
administrators, successors or assigns ever had, now have or hereafter can, shall
or may have for, upon, or by reason of any matter, cause or thing whatsoever
existing, arising or occurring at any time on or prior to the date the Executive
executes this Agreement, including, without limitation, any and all claims
arising out of or relating to the Executive’s employment, shareholding,
association, service, compensation and benefits with the Company Group and/or
the termination thereof, and any and all contract claims, benefit claims, tort
claims, fraud claims, claims for bonuses, commissions, sales credits, etc.,
defamation, disparagement, or other personal injury claims, severance claims,
claims related to any bonus compensation, claims for accrued vacation pay,
claims under any federal, state or municipal wage payment, discrimination or
fair employment practices law, statute or regulation, and claims for costs,
expenses and attorneys’ fees with respect thereto, except that the Company’s
obligations under this Agreement shall continue in full force and effect in
accordance with their terms. This release and waiver includes,
without limitation, any and all rights and claims under Title VII of the Civil
Rights Act of 1964, as amended, the Civil Rights Act of 1991, as amended, the
Civil Rights Act of 1866 (42 U.S.C. § 1981), as amended, the Employee Retirement
Income Security Act, as amended, the Federal Age Discrimination in Employment
Act, as amended (including the Older Workers Benefit Protection Act), the
Americans with Disabilities Act, as amended, the Fair Labor Standards Act, as
amended, the National Labor Relations Act, as amended, the Family and Medical
Leave Act, as amended, the federal Worker Adjustment and Retraining Notification
Act or any state or local equivalent, each as amended, the Connecticut Fair
Employment Practices Act, Conn. Gen. Stat. 46a-58 et seq., as amended,
the Connecticut Family and Medical Leave Act, Conn. Gen. Stat. § 31-51kk et seq., as amended, the
Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. § 42-110a et seq., as amended,
Connecticut wage and hour laws, Conn. Gen. Stat. § 31-58 et seq., as amended,
state tort and contract laws, and any other federal, state or local statute,
ordinance, regulation, law or constitutional provision.
(b) For
the purpose of implementing a full and complete release and discharge of claims,
the Executive expressly acknowledges that this Agreement is intended to include
in its effect, without limitation, all the claims described in the preceding
paragraphs, whether known or unknown, apparent or concealed, and that this
Agreement contemplates the extinction of all such claims, including claims for
attorney’s fees. The Executive expressly waives any right to assert
after the execution of this Agreement that any such claim, demand, obligation,
or cause of action has, through ignorance or oversight, been omitted from the
scope of this Agreement.
(c) For
purposes of this Section 9, the term Company Group includes, individually or
collectively, each respective past, present and future direct and indirect
parents, subsidiaries, affiliates, divisions, employee benefit plans,
predecessors, successors, insurers, and assigns, and each respective past,
present and future officers, directors, shareholders, representatives, agents
and employees, in their official and individual capacities, and all other
related individuals and entities, jointly and individually, and this Section 9
shall inure to the benefit of and shall be enforceable by all such entities and
individuals.
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(d) The
Executive represents and warrants that he has not assigned any of the claims
being released under this Section 9.
(e) Nothing
in this Agreement is intended to prevent or shall be construed as preventing the
Executive from participating in any investigation or proceeding conducted by the
Equal Employment Opportunity Commission (the “EEOC”) or similar
government agency or from filing a charge of discrimination with the EEOC or
similar government agency; provided, however, that no
such action shall result in an award of damages (including without limitation
punitive damages), costs, attorney’s fees, fines, penalties, or other relief to
the Executive, whether monetary or otherwise (collectively, “Damages”), and the
Executive waives any right to such Damages.
10. Miscellaneous.
(a) Entire
Agreement. This Agreement sets forth the entire agreement and
understanding of the parties hereto with respect to the matters covered hereby
and, except as expressly set forth herein, supersedes and replaces any express
or implied, written or oral, prior agreement, plan or arrangement with respect
to the terms of the Executive’s employment and the termination thereof which the
Executive may have had with the Company Group, including, without limitation,
the Chemtura Corporation Executive and Key Employee Severance Plan; provided, however, that where
the terms of any agreement entered into by the Executive with respect to Company
confidential information, Company intellectual property, non-solicitation and/or
non-competition cover the same subject matter, the terms that are most
protective of the Company shall survive and control. Subject to the
foregoing, all prior and contemporaneous discussions and negotiations have been
and are merged and integrated into, and are superseded by, this Agreement with
respect to the matters contained herein.
(b) Modification;
Amendment. This Agreement may not be changed orally, and no
modification, amendment or waiver of any of the provisions contained in this
Agreement, nor any future representation, promise or condition in connection
with the subject matter of this Agreement shall be binding upon any party hereto
unless made in writing and signed by such party.
(c) No Admission of
Wrongdoing. Nothing contained in this Agreement shall be
deemed to constitute an admission or evidence of any wrongdoing or liability on
the part of the Company Group, or any member thereof, nor of any violation of
any federal, state or municipal statute, regulation or principle of common law
or equity. The Company Group, and each member thereof, expressly deny
any wrongdoing of any kind in regard to the Executive’s employment or
termination.
(d) Withholding
Taxes. Any payments made or benefits provided to the Executive
under this Agreement shall be reduced by any applicable withholding
taxes.
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(e) Sufficiency of
Consideration. The Executive understands and agrees that he is
receiving compensation, payments and/or benefits under this Agreement which are
in excess of those to which he is entitled from the Company Group, and that such
compensation, payments and/or benefits are being provided to him in
consideration for his acceptance, execution of and compliance with, and in
reliance upon his representations in, this Agreement, and the Executive
acknowledges that such consideration is adequate and satisfactory to
him.
(f) Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Connecticut applicable to contracts
executed in that state, without giving effect to the conflicts of laws
principles thereof.
(g) Waiver. The
failure of any party to this Agreement to enforce any of its terms, provisions
or covenants shall not be construed as a waiver of the same or of the right of
such party to enforce the same. Waiver by any party hereto of any
breach or default by another party of any term or provision of this Agreement
shall not operate as a waiver of any other breach or default.
(h) Severability. In
the event that any one or more of the provisions of this Agreement shall be held
to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remainder of the Agreement shall not in any way be
affected or impaired thereby. Moreover, if any one or more of the
provisions contained in this Agreement shall be held to be excessively broad as
to duration, activity or subject, such provisions shall be construed by limiting
and reducing them so as to be enforceable to the maximum extent allowed by
applicable law.
(i) Notices. Unless
otherwise provided expressly herein, any notices required or made pursuant to
this Agreement shall be in writing and shall be deemed to have been given when
delivered or mailed by United States certified mail, return receipt requested,
postage prepaid, as follows:
if
to the Executive:
Xxxx X.
Xxxxxxxx
000 Xxxx
Xxxxx Xxxx
Xxxxxxxxx,
XX 00000
if
to the Company:
Chemtura
Corporation
000
Xxxxxx Xxxx
Xxxxxxxxxx,
XX 00000
ATTN.:
Human Resources
or to
such other address as either party may furnish to the other in writing in
accordance with this Section 10(i). Notices of change of address
shall be effective only upon receipt.
(j) Descriptive
Headings. The paragraph headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
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(k) Counterparts. This
Agreement may be executed in one or more counterparts, which, together, shall
constitute one and the same agreement.
(l) Successors and
Assigns. Except as otherwise provided herein, this Agreement
shall inure to the benefit of and shall be binding upon (i) the Company, its
successors and assigns, and any company with which the Company may merge or
consolidate or to which the Company may sell all or substantially all of its
assets and (ii) the Executive and the Executive’s executors, administrators,
heirs and legal representatives. The Executive may not sell or
otherwise assign his rights, obligations, or benefits under this Agreement and
any attempt to do so shall be void.
(m) Litigation. The
parties shall use their best efforts and good faith to settle all disputes by
amicable negotiations. Any judicial proceeding brought against any of
the parties to this Agreement or any dispute arising out of this Agreement or
any matter related hereto may be brought in the courts of the State of
Connecticut or in the United States District Court for the State of Connecticut,
and, by execution and delivery of this Agreement, each of the parties to this
Agreement accepts the jurisdiction of said courts. Each of the
Executive and the Company also agrees not to bring any action or proceeding
arising out of or relating to this Agreement in any other court or
forum. Each of the Executive and the Company waives any defense of
inconvenient forum to the maintenance of any action or proceeding so brought and
waives any bond, surety, or other security that might be required of the other
party with respect thereto. Each party agrees that a final judgment in any
action or proceeding so brought shall be conclusive and may be enforced by a
suit on the judgment or in any other manner provided by law or at
equity. For purposes of this Agreement, a “final judgment” shall
mean a judgment that cannot be appealed or is not appealed in the applicable
time period.
11. Execution and Return;
Revocation. This Agreement must be executed by the Executive
and must be returned to the Company’s
Corporate Human
Resources Department not later than the 21st day
following the Executive’s receipt of this Agreement. This Agreement
may be revoked by the Executive within the seven (7)-day period commencing on
the date the Executive signs this Agreement (the “Revocation
Period”). No such revocation by the Executive shall be
effective unless it is in writing, signed by the Executive and received by the
Company’s Corporate Human Resources Department prior to the expiration of the
Revocation Period. In the event of any such revocation by the
Executive, all obligations of the Company under this Agreement shall terminate
and be of no further force and effect as of the date of such
revocation. Because this Agreement affects the Executive’s legal
rights, (including rights under the Age Discrimination in Employment Act of
1967, and the Older Workers Benefit Protection Act, each as amended), the
Executive should and hereby is advised to consult with an attorney prior to
signing this Agreement.
12. Effective Date of
Agreement. This Agreement shall not become effective until the
day following the last day of the Revocation Period (the “Effective
Date”). In the event that the Executive fails to execute this
Agreement in its entirety and without modification and return this Agreement on
a timely basis, or the Executive so executes, but then elects to revoke this
Agreement within the Revocation Period, this Agreement will be of no force or
effect, and neither the Executive or the Company Group will have any rights or
obligations hereunder.
11
13. Compliance with Code Section
409A. To the extent that Section 409A(a)(2)(B)(i) of the Code
and the guidance thereunder would require any payment or benefit otherwise
provided for by this Agreement to be delayed in order to prevent any accelerated
or additional tax under Section 409A of the Code, then, to the extent permitted
by Section 409A of the Code, the Company will defer the applicable payment or
benefit hereunder (without any reduction in such payments or benefits ultimately
paid or provided to the Executive) until the date that is six (6) months
following the Separation Date (or the earliest date as is permitted under
Section 409A of the Code). If any payments or benefits are deferred
due to such requirements, such amounts will be paid in a lump sum to the
Executive at the end of such six (6) month period. If the Executive
dies during such six-month period, the amounts withheld on account of Section
409A of the Code will be paid to the Executive’s estate within fifteen (15) days
of the Executive’s death. Without limiting the generality of the
foregoing, all payments under this Agreement are intended to comply with Section
409A of the Code, and this Agreement will be administered and interpreted in
accordance with such requirements and applicable guidance issued thereunder by
the Internal Revenue Service and/or the Department of the Treasury, and if
necessary, any applicable provision of this Agreement shall be deemed amended to
comply with Section 409A of the Code and the guidance issued
thereunder. The Company reserves the right to modify the terms of
this Agreement as necessary to comply with such Section of the Code and
applicable guidance. Further, for purposes of the limitations on
nonqualified deferred compensation under Section 409A of the Code, each payment
of compensation under this Agreement shall be treated as a separate payment of
compensation. Any amounts payable solely on account of an involuntary
separation from service of the Executive within the meaning of Section 409A of
the Code shall be excludible from the requirements of Section 409A of the Code,
either as involuntary separation pay or as short-term deferral amounts to the
maximum possible extent. Any reimbursements or in-kind benefits provided
under this Agreement shall be made or provided in accordance with the
requirements of Section 409A of the Code, including, where applicable, the
requirement that (i) any reimbursement is for expenses incurred during the
period of time specified in this Agreement (or if no period is specified, the
lifetime of the Executive), (ii) the amount of expenses eligible for
reimbursement, or in kind benefits provided, during a calendar year may not
affect the expenses eligible for reimbursement, or in kind benefits to be
provided, in any other calendar year, (iii) the reimbursement of an eligible
expense will be made no later than the last day of the calendar year following
the calendar year in which the expense is incurred, and (iv) the right to
reimbursement or in kind benefits is not subject to liquidation or exchange for
another benefit. In no event may the Executive, directly or indirectly,
designate the calendar year of a payment.
12
IN
WITNESS WHEREOF, the Company has executed this Agreement as of the date first
set forth above and the Executive has executed this Agreement as of the date set
forth below.
| CHEMTURA CORPORATION | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxx | |||
| Title: Chairman, President and CEO | |||
BY
SIGNING THIS AGREEMENT, THE EXECUTIVE ACKNOWLEDGES AND AFFIRMS
THAT: (1) HE IS COMPETENT; (2) HE WAS AFFORDED A REASONABLE TIME
PERIOD OF NOT LESS THAN 21 DAYS TO REVIEW AND CONSIDER THIS AGREEMENT AND HAS
BEEN ADVISED TO DO SO WITH AN ATTORNEY OF HIS CHOICE; (3) HE HAS READ AND
UNDERSTANDS AND ACCEPTS THIS DOCUMENT AS FULLY AND FINALLY RESOLVING, WAIVING
AND RELEASING ANY AND ALL CLAIMS AND RIGHTS WHICH HE MAY HAVE AGAINST THE
COMPANY GROUP (AS DEFINED ABOVE), INCLUDING, WITHOUT LIMITATION, ANY AND ALL
CLAIMS AND RIGHTS UNDER THE FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT; (4) NO
PROMISES OR INDUCEMENTS HAVE BEEN MADE TO HIM EXCEPT AS SET FORTH IN THIS
AGREEMENT; AND (5) HE HAS SIGNED THIS AGREEMENT FREELY, KNOWINGLY AND
VOLUNTARILY, INTENDING TO BE LEGALLY BOUND BY ITS TERMS.
| ACCEPTED AND AGREED: | |||||
|
/s/ Xxxx X.
Xxxxxxxx
|
|||||
| Xxxx X. Xxxxxxxx | |||||
|
|
|
||||
| Date: |
February
4, 2009
|
|
|||
