EXHIBIT 10.32
AGREEMENT
BY AND BETWEEN
OM GROUP, INC. AND XXXXXXX X. XXXXX
This Agreement is hereby entered into this 11th day of September, 2003, by
and between OM Group, Inc. ("OMG") and Xxxxxxx X. Xxxxx (the "Executive").
WITNESSETH:
WHEREAS, OMG and the Executive entered into a certain Employment Agreement
dated January 1, 1993 (the "01/01/93 Agreement") regarding the employment of the
Executive by OMG as its General Counsel and Secretary; and
WHEREAS, OMG desires to terminate the employment of the Executive; and
WHEREAS, OMG and the Executive wish to set forth the severance payments
and benefits to which the Executive shall be entitled;
NOW, THEREFORE, in consideration of the mutual promises contained in this
Agreement, OMG and the Executive hereby agree as hereinafter set forth:
1. 01/01/93 AGREEMENT. OMG and the Executive agree that this Agreement
with its attached Exhibits sets forth the entire agreement between OMG and the
Executive regarding the termination of the Executive's employment with OMG and
supersedes all previous agreements and understandings, written or oral,
regarding the Executive's employment and termination of employment, including,
but not limited to the 01/01/93 Agreement. Notwithstanding the foregoing, the
Executive shall remain subject to all confidentiality provisions of the 01/01/93
Agreement and the provisions of law restricting disclosure of confidential,
proprietary, and trade secret information.
2. TERMINATION OF EMPLOYMENT. The employment of the Executive with OMG
shall terminate as of August 5, 2003 (the "Termination Date").
3. CONFIDENTIALITY. OMG and the Executive agree that they shall keep the
terms and conditions of this Agreement confidential, except as otherwise
required by law or by order of a court; provided, however, that the Executive
and OMG agree that the Executive may reveal the terms and conditions of this
Agreement with his spouse, attorneys, accountants and tax advisors and to the
extent that the Executive discusses or reveals the terms or conditions of this
Agreement to any of the aforementioned persons or entities, he shall instruct
such persons or entities that the terms and conditions of this Agreement are
confidential, and he shall obtain their agreement to keep such information
confidential. OMG and the Executive also agree that it may be necessary for OMG
to disclose the terms and conditions of this Agreement to certain executive
officers and members of the Board of Directors. OMG agrees that to the extent
the terms and conditions of this Agreement are revealed to such individuals, OMG
shall advise them
that such terms and conditions are confidential and should not be discussed with
or revealed to any other person except on a need-to-know basis.
4. SEPARATION PAYMENTS; VACATION. Following the Effective Date (as defined
in Section 17(vii)), OMG shall pay the Executive the following amounts:
(i) Pay for his accrued but unused 2003 vacation days;
(ii) Separation pay at the annual rate of $380,000 payable in
accordance with normal OMG payroll practices until December
31, 2004;
(iii) A single sum payment of $133,000 on September 30, 2003; and
(iv) Two single sum payments on December 31, 2003 and December 31,
2004, respectively, which shall be based upon the financial
performance of OMG for the year in which such payment is made
and which shall not be less than $95,000 nor greater than
$190,000.
Such payments shall reflect required local, state and federal tax withholding
and any applicable deductions for welfare benefits under Section 5 of this
Agreement.
5. GROUP HEALTHCARE AND LIFE INSURANCE BENEFITS. On and after the
Effective Date, the Executive and his dependents shall participate in the group
healthcare plan (including medical, dental, vision and prescription drug
programs) as well as the group life insurance plan maintained by OMG for its
executive officers on the same terms as such officers participate; provided,
however, that such life insurance plan participation shall terminate as of
December 31, 2004, and such healthcare plan participation shall continue until
the Executive's attainment of age 65 (at which time the OMG healthcare plan
shall become the secondary payor to Medicare) or such plan is terminated. It is
expressly understood that the provisions of this Section 5 shall not prohibit
OMG from changing or terminating its group healthcare plan or its life insurance
plan in any respect in the future.
6. PROFESSIONAL DUES AND EXPENSES. OMG agrees to pay the professional dues
with respect to the bar associations of which the Executive is a member on the
Termination Date and the Supreme Court of Ohio registration fees of the
Executive for the time period beginning on the Effective Date and ending on
December 31, 2004.
7. AUTOMOBILE. The Executive shall have the use of the leased 2002 BMW
540i automobile currently provided to him under the OMG Company Car Program
through December 31, 2004. OMG shall pay the operating and maintenance costs
associated with such automobile until such date pursuant to the terms of the OMG
Company Car Program in effect. On or before December 31, 2004, the Executive
shall have the option to purchase such automobile pursuant to the terms of the
lease agreement applicable to the sale of such automobile on the date that the
Executive exercises and effects such option.
8. OTHER BENEFITS. As of the Effective Date, OMG shall reimburse the
Executive for the monthly dues and any capital assessments that are payable
after the Effective Date through December 31, 2004 with respect to his
memberships in the Cleveland Athletic Club and The Country Club. As of the
Effective Date, OMG shall cause the OM Group, Inc. Benefit
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Restoration Plan (the "BRP") to be amended to provide that: (i) the Executive's
Capital Accumulation Account under the BRP, which as of December 31, 2002
equaled $170,595.00, shall be credited under the terms of the BRP with
additional credits for 2003 and 2004 based upon the amounts payable to the
Executive pursuant to the provisions of Section 4(i), (ii) and (iv) of this
Agreement, provided that contributions are made by OMG to the BRP or the OMG
Profit-Sharing and Retirement Savings Plan for such years; (ii) the Executive's
Capital Accumulation Account under the BRP shall be credited with Earnings (as
defined in the BRP) which shall be at the rate or rates applicable to all other
BRP participants; (iii) as of the Effective Date, the Executive shall be fully
and irrevocably vested in his Capital Accumulation Account under the BRP; (iv)
except as otherwise specifically provided, the Executive's Capital Accumulation
Account under the BRP shall be payable to the Executive pursuant to the terms of
the BRP, including any terms relating to discretionary payments; and (v) in the
event of a Change of Control (as defined in Exhibit B attached hereto), the
Executive's Capital Accumulation Account under the BRP shall become payable to
him pursuant to the terms of the BRP. In the event of the Executive's death
prior to the payment of the entire balance of his Capital Accumulation Account,
his designated beneficiary shall receive any remaining balance thereof in
accordance with the provisions of the BRP. As of January 1, 2005, OMG shall
assign the following life insurance policies to the Executive: Massachusetts
Mutual Life Insurance Company Policies 004292832, 004726055, 004906480,
006047887, 006089724, and 006130894 and Minnesota Life Insurance Company Policy
0050131. Prior to such date, the Executive and OMG shall continue to pay all
premiums on such policies pursuant to the premium allocation currently in
effect.
9. OUTPLACEMENT SERVICES. OMG shall provide the Executive with the
outplacement services of Xxx Xxxxx Xxxxxx for a 12-month period after the
Effective Date to assist him in developing his resume and to counsel him with
respect to a job search for new employment.
10. RELEASE. In order to receive any payments or benefits under this
Agreement, the Executive must execute a release in the form attached hereto as
Exhibit A (the "Release").
11. CONSULTATION. The Executive agrees that it may be necessary from time
to time for him to provide information to OMG regarding matters relevant to OMG,
including, but not limited to, matters pending at the time of the Effective
Date. The Executive agrees to use reasonable efforts for at least the 12 months
following his termination to provide OMG with such information.
12. NON-DISPARAGEMENT. The Executive agrees that he shall not disparage
OMG or any affiliate thereof, its products, services and business practices, or
its current or former owners, directors, officers, employees and agents at any
time or in any manner in the future. In addition, the Executive agrees that he
shall not cooperate, aid or assist any person in preparing claims against OMG.
13. FUTURE EMPLOYMENT. The Executive shall be under no constraint or
restriction with respect to future employment or business enterprises,
regardless of whether such business is one in which OMG is actively engaged.
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14. REPRESENTATIONS OF EXECUTIVE. The Executive represents and warrants
that he has returned all property of OMG and its affiliates in his possession,
including, but not limited to, keys, credit cards, computer, computer software
and any Confidential Information and does not possess any copies thereof. As
used herein, the term "Confidential Information" shall mean any information
regarding OMG and/or its affiliates which is not generally made publicly
available by OMG or its affiliates, including but not limited to any
specification or other technical information, processing information, financial
information, customer information, and general business information in any form,
including electronic or optical data storage and retrieval mechanisms, whether
or not marked or designated as "Confidential", "Proprietary" or the like, and
regardless of whether any such information is protected by any applicable law.
15. BENEFICIARY. In the event that the Executive dies prior to receiving
all amounts payable to him under this Agreement, any such unpaid amounts shall
be paid to one or more beneficiaries designated by the Executive in writing to
OMG during his lifetime (a "Beneficiary"), or if no such Beneficiary is so
designated or survives, such amounts shall be paid to the Executive's estate.
Such payments shall be made in a lump sum to the Executive's Beneficiary;
provided, however, that payments from the BRP and the OMG Profit-Sharing and
Retirement Savings Plan shall be made pursuant to the terms thereof. The
Executive, without the consent of any prior Beneficiary, may change his
designation of Beneficiary or Beneficiaries at any time or from time to time by
submitting a new designation in writing to OMG.
16. REPAYMENT OF BENEFITS. In the event that the Executive revokes the
Release upon which payments and benefits under this Agreement are conditioned as
set forth in Section 10 or violates the terms of this Agreement, the Executive
shall repay OMG immediately any payments that he received under this Agreement
and he shall no longer be eligible for any payments under Section 4 and any
benefits under Sections 5, 6, 7, 8, or 9.
17. ACKNOWLEDGMENTS. The Executive acknowledges and agrees that:
(i) The only payments, benefits and other consideration for the
Executive entering into this Agreement are described in this
Agreement.
(ii) In exchange for executing this Agreement, the Executive is
being provided consideration for which he would not otherwise
be entitled.
(iii) No other representations, promises or agreements of any kind
have been made by any person or entity to induce the Executive
to execute this Agreement.
(iv) The Executive has been given at least 21 days to consider the
effect of this Agreement, including the release set forth on
Exhibit A, prior to executing this Agreement.
(v) The Executive has been encouraged and advised by OMG to
discuss the terms of this Agreement and the effect of signing
this Agreement with the legal counselor of his choice.
(vi) The Executive is satisfied that he understands the Agreement
and that he intends to be bound by it.
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(vii) The Executive understands that this Agreement may be revoked
by him during the 7-day period beginning immediately after
executing this Agreement by giving written notice of
revocation to OMG; that this Agreement shall not be effective
or enforceable until such 7-day period has expired; and that
if he revokes this Agreement within such 7-day period, the
Agreement shall be ineffective and of no legal force. If no
revocation has been received by the end of such 7-day period,
the Executive understands and agrees that the "Effective Date"
of this Agreement shall be the eighth day after the Executive
executes this Agreement.
(viii) The Executive agrees that, notwithstanding anything to the
contrary in this Agreement, no part of this Agreement shall be
effective or enforceable and no payment thereunder shall be
made until after the Effective Date.
18. NOTICES. All notices, requests, demands and other communications
required or given under this Agreement shall be made in writing by a party to
the other party to the addresses set forth below or such other address a party
shall have specified to the other party.
NOTICES TO EXECUTIVE:
Xxxxxxx X. Xxxxx
0000 Xxxxxxxxx Xxxx
Xxxxx Xxxxxx, Xxxx 00000
NOTICES TO OMG:
Xxxxx X. Xxxxxx
Chairman and Chief Executive Officer
OM Group, Inc.
0000 Xxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
WITH A COPY TO:
Xxxxxxx X. Xxxxxx, Esq.
Squire, Xxxxxxx & Xxxxxxx LLP
0000 Xxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
19. SEVERABILITY. The Executive agrees that if any provision of this
Agreement is adjudicated to be invalid or unenforceable, or if compliance with
any provision of this Agreement is restrained pending a final determination as
to its legality, such deletion or restraint shall apply only to the operation of
the provision or provisions deemed invalid, unenforceable, or
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restrained, and to the extent any provision of the Agreement is deemed invalid,
unenforceable, or restrained, the remaining provisions shall be valid and
enforceable to the fullest extent possible.
20. BREACH. The Executive agrees that in the event of any breach or
threatened breach of this Agreement by him, OMG shall be entitled to specific
performance and injunctive relief (i.e. a court order) as a remedy for any such
breach or threatened breach hereof without necessity of posting bond or other
security, the requirement for which is expressly waived. Such remedy shall not
be deemed to be the exclusive remedy for any breach of this Agreement, but shall
be in addition to all other remedies available to OMG at law or in equity.
21. BINDING NATURE. The Executive agrees that this Agreement shall also be
binding upon his spouse, dependents, children, heirs, successors and assigns and
their legal representatives under this Agreement and shall inure to the benefit
of and shall release OMG and its successors and assigns. OMG agrees that this
Agreement shall also be binding upon its successors.
22. GOVERNING LAW. The provisions of this Agreement shall be construed and
enforced in accordance with the laws of the State of Ohio.
Executed this 11th day of September, 2003.
EXECUTIVE OM GROUP, INC.
By:______________________________ By:_____________________________________
Xxxxxxx X. Xxxxx Title:
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