PRIVILEGED AND CONFIDENTIAL
Xxxxxx X. Xxxx
Vice President
Human Resources
GenTek Inc.
00 Xxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Tel 000 000 0000
Fax 000 000 0000
Date
Dear:
This Letter Agreement ("Letter Agreement") sets forth our understanding
regarding the attached Term Sheet, which contains the terms of a potential
transaction bonus to be paid to you in the event a Change in Control (as defined
in such Term sheet) (the "Term Sheet"). This Letter Agreement confirms the
following understandings regarding your entitlement to the transaction bonus
described in the Term Sheet. You will receive a detailed agreement incorporating
the provisions of your Term Sheet later next week.
1. You agree that, except as required by law, you will not disclose to
any person other than your spouse (or your legal or financial
advisor) the terms set forth in the Term Sheet, any transaction
bonus payable pursuant to the terms described in the Term Sheet or
the existence of the Term Sheet.
2. You acknowledge that you are bound by the non-disclosure provisions
set forth in the GenTek Inc. Retention Plan Participation Agreement
(the "Retention Plan Agreement").
3. You agree and acknowledge that "Confidential Information" as defined
in the Retention Plan Agreement includes, among other things, any
information relating to the acquisition or disposition or potential
acquisition or disposition of the Company, any of its subsidiaries,
or any of their respective assets or business segments (including,
but not limited to, the contemplation or evaluation of a transaction
or series of transactions, or of a potential transaction or series
of transactions), the planning or negotiating of a transaction or
series of transactions or potential transaction or series of
transactions, or any financial or strategic information relating to
a transaction or series of transactions or potential transaction or
series of transactions, and any other information related to any of
the foregoing.
4. You agree and acknowledge that the direct and indirect disclosure of
any Confidential Information would place the Company at a
competitive disadvantage and would do damage, monetary or otherwise,
to the Company's business or to employee morale.
5. You agree and acknowledge that the Confidential Information
constitutes a trade secret of the Company.
6. You agree and acknowledge that your engagement in any of the
activities prohibited by this Letter Agreement may constitute
improper misappropriation and/or use of such information and trade
secrets.
7. You and the Company agree that during your employment with the
Company and at all times after your employment terminates, whether
such termination was for any reason whatsoever or for no reason by
you or the Company, you will not, directly or indirectly, whether
individually, as a director, stockholder, owner, partner, employee,
principal or agent of any business, or in any other capacity, make
known, disclose, furnish, publish, make available or utilize any of
the Confidential Information unless and until such Confidential
Information shall become general public knowledge through no fault
or action of your own.
8. You acknowledge that you have reviewed the GenTek Xxxxxxx Xxxxxxx
Policy, understand the terms set forth in such policy and agree to
abide by its terms.
If you agree with the foregoing, kindly sign and return to the Company
one of the counterparts hereof, whereupon it will become a binding agreement
among the parties in accordance with its terms.
Very truly yours,
GenTek, Inc.
By:
---------------------------------
Xxxxxx X. Xxxx
Vice President - Human Resources
The foregoing Letter Agreement is hereby
confirmed and accepted
-----------------------------
TERM SHEET FOR ____________
The Company proposes to enter into an agreement with ___________ (the
"Executive") regarding certain terms of the Executive's employment (the
"Agreement"). The Company's offer set forth in this term sheet remains open
until August 20, 2004. If a written agreement has not been executed by August
20, 2004, the terms set forth in this term sheet are automatically withdrawn and
expire at the close of business on such date. The Agreement with GenTek, Inc.
(the "Company") will include the following material terms:
Term of Agreement The Agreement shall expire on February 28, 2005.
Continued Employment Any payment payable under the Agreement is dependent
on the Executive's continued employment with the Company
through February 28, 2005.
Position and Duties Executive will continue his or her employment with the
Company in the position of ____________________, with
duties as assigned by the Company.
Transaction Bonus o If the consummation of an acquisition of
substantially all of the assets, business and/or stock
of the Company (a "Company Sale") occurs on or prior to
February 28, 2005 and the Executive is actively
employed by the Company at the time of the consummation
of the Company Sale, upon the consummation of the
Company Sale the Executive shall be entitled to the
following: (i) immediate vesting of his or her option
to purchase _____ shares of common stock of the Company
("Option"); (ii) immediate vesting of $______
"Performance Cash Award"; and (iii) immediate vesting
and lapse of any restrictions on his or her ______
shares of restricted stock of the Company (together
with the Option, "Additional Awards"); and (iv)
immediate vesting of the _______ "emergence shares" of
common stock of the Company ("Emergence Shares"); and
(v) an award of stock in the Company (or any successor
or parent entity, as applicable) in an amount
calculated as set forth below and based on the
following criteria:
o an initial award of ____shares of stock if the
consummation of the Company Sale occurs; plus
o an additional award of ____ shares of stock if
the stockholders of the Company receive at least
$60 per share as consideration in the Company
Sale; plus
o an additional award of ___ shares of stock for
each dollar of consideration between $61 and $70,
up to a maximum of _____ shares, if the
stockholders of the Company receive between $61
and $70 per share as consideration in the Company
Sale.
Non-Compete/Non-Solicitation o The Executive agrees, so long as the Executive
remains employed with the Company and during the 12
(twelve)-month period following the later of (i) the
expiration of the term of the Agreement or (ii) or the
date of termination of such employment (the "Noncompete
Period"),
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that he or she will not, directly or indirectly, engage
in, have any equity interest in, or manage or operate
any person, firm, corporation, partnership or business
(whether as director, officer, employee, agent,
representative, partner, security holder, consultant or
otherwise) that engages in any business which competes
with the business of the Company or any entity owned by
it anywhere in the world; provided, however, that the
Executive shall be permitted to acquire a passive stock
or equity interest in such a business provided the stock
is publicly traded and the stock or other equity so acquired
is not more than five percent (5%) of the outstanding
interests in such business.
o During the Noncompete Period, the Executive will not,
and will not permit any of the Executive's affiliates
to, directly or indirectly, recruit or otherwise
solicit or induce any employee, customer, subscriber or
supplier (or any employee, customer, subscriber or
supplier of the Company at any time during the 12
(twelve) months prior to the date of termination of
employment) of the Company to terminate its employment
or arrangement with the Company, otherwise change its
relationship with the Company in a manner that is
adverse to the Company's interests, or establish any
relationship with the Executive or any of the
Executive's affiliates for any business purpose
competitive with the business of the Company.
o This provision shall survive the expiration of the
Agreement.
Non-Disclosure of Proprietary The Executive agrees to maintain in confidence any
Information confidential or proprietary information or trade
secrets relating to the Company. Upon termination of
employment, the Executive agrees to return all
documents that came into the Executive's possession by
reason of his or her employment with the Company. This
provision shall survive the expiration of the
Agreement.
Inventions The Executive agrees that all discoveries, inventions,
improvements and innovations related to the Company's
business discovered, invented or originated by the
Executive during his or her employment or within a
12-month period after his or her termination date is
the exclusive property of the Company. This provision
shall survive the expiration of the Agreement.
Non-Disparagement The Executive agrees not to make any statements
(whether written or oral) regarding the Company, its
employees, officers, directors, majority stockholders,
business, business practices, products or services that
could reasonably be deemed disparaging or damaging to
the Company, its employees, officers, directors,
majority stockholders, business, business practices,
products or services, as applicable. This provision
shall survive the expiration of the Agreement.
Release of Claims Any payments payable upon any termination of employment
as described above will be contingent on and subject to
the Executive's execution of a general release, in a
form to be provided by the Company.
Governing Law and Venue The terms, conditions and interpretations of the
Agreement shall be
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governed by the laws of the State of Delaware;
provided, however, that any claims or disputes
regarding the Agreement shall be brought in the
jurisdiction of the courts of New York, New York.
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