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EXHIBIT 10.26
C O N F I D E N T I A L
SEPARATION AGREEMENT
AND GENERAL RELEASE OF CLAIMS
This Separation Agreement and General Release of Claims
("Agreement") is entered into between Hercules incorporated ("Employer"), and
June X. Xxxxx ("Employee").
In consideration of the mutual promises and covenants
contained herein and other good and valuable consideration, the receipt of which
hereby is acknowledged, the parties agree as follows:
1. SEPARATION DATE. Effective upon the close of business on June 30, 2001
but subject to the 21-day consideration period described in Section 16,
Employee shall cease to be employed by Employer (the "Separation
Date"). Between now and the Separation Date and for 30 days following
said Separation Date on an "as needed" basis (at no additional charge
to Employer), Employee shall assist in transitioning her duties and
responsibilities, and perform such other duties and responsibilities as
she may be assigned that are not inconsistent therewith.
2. SEVERANCE PAYMENT. Within twenty (20) days of receipt of this Agreement
executed by Employee, and provided Employee has not revoked this
Agreement in accordance with paragraph 17 below, Employer shall pay to
Employee severance in the amount of One Million Three Hundred Twenty
Thousand dollars ($1,320,000.00), less all applicable withholdings and
deductions. Employee expressly waives all rights to benefits under the
Merger Severance Plan, Change in Control Agreement, Severance Plan, and
under any and all other plans or agreements purporting to provide for
severance payments.
3. SPECIAL PENSION BENEFIT. Employee's regular benefit entitlement under
and pursuant to the provisions of the BetzDearborn Pension Plan, having
satisfied all of the requirements of Section 6.6 (Vested Benefit) of
the BetzDearborn Pension Plan, and including one year Service Credit
for Plan Year 2001, will be approximately $28,000/year payable at age
55. Employee will be granted an additional special pension benefit
payable under the Hercules Employee Pension Restoration Plan of
$1,333.33 per month effective July 1, 2006, such amount payable for
Employee's lifetime. The additional benefit is payable pursuant to the
provisions of the BetzDearborn Pension Plan but is payable under the
Hercules Pension Restoration Plan, which is a nonqualified pension plan
payable from the assets of Hercules Incorporated.
Additionally, Employee will be entitled to the Early Retirement Benefit
described in Attachment 2 to Employee's Employment Offer Letter dated
October 6, 1998. The value of this account on March 31, 2001 was
$833,693.00. Interest will be credited to June 30, 2001.
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4. NON-QUALIFIED SAVINGS PLAN ACCOUNT BALANCE. Employee will receive her
account balance in the subject plan. The value of this account is
$24,900 as of March 31, 2001. Interest will be credited to June 30,
2001.
Also reported as of March 31, 2001 as part of this account was $36,900
which was the value of dividends and interest accrued applicable to the
Shareholder Value Award granted to Employee November 19, 1999 which by
its terms will be forfeited on June 30, 2001.
5. ACCRUED VACATION PAY. Employee has or will take all accrued and earned
vacation as of June 30, 2001. Employee acknowledges and agrees that she
is not entitled to any additional payment for accrued vacation time.
6. HEALTH & DENTAL BENEFIT CONTINUATION. Employer agrees to continue
Employee's participation (including that of her spouse and children)
for a period of six months beginning July 1, 2001 in the Health and
Dental Plans at the same cost as applicable to employee electing the
same coverage. Following the six month period of coverage, Employer
shall issue to Employee notice of her right to elect continued health
coverage in accordance with the Consolidated Omnibus Budget
Reconciliation Act ("COBRA"). If Employee elects continuation coverage,
Employee shall be responsible for paying 100% of the premiums and
administrative fees.
7. GROUP LIFE INSURANCE COVERAGE. Employee is a participant in the
Hercules Group Life Insurance Plan. At resignation, Employee is
eligible to convert $150,000 coverage to a private pay plan. Should
Employee so convert, Hercules shall reimburse Employee for her premium
cost for up to 6 months of coverage following resignation.
8. IMPACT OF SEVERANCE ON OTHER BENEFITS. Except as expressly provided in
this Agreement, both Employee's and her dependents' participation in,
coverage by and entitlement to all compensation, fringe benefit and
employee benefit programs of Employer shall cease upon the Separation
Date.
9. COOPERATION FOLLOWING THE SEPARATION DATE. Employee agrees that she
will cooperate with any reasonable request of Employer to continue to
aid in the transition of her function or to answer questions regarding
her functional area following the Separation Date. Employee, prior to
June 30, 2001, agrees to list all open projects, accountabilities and
unfinished assignments with a description of status.
10. AGREEMENT NOT TO SEEK FUTURE EMPLOYMENT WITH EMPLOYER. Employee agrees
that she will not apply for or otherwise seek employment with Employer
(as defined below) at any time in the future unless mutually agreed in
writing by both parties.
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11. NO ADMISSION. The benefits provided to Employee in this Agreement are
not intended to be, and shall not be construed as, any admission of
liability by Employer or of any improper conduct on Employer's part,
all of which Employer specifically denies.
12. COMPANY INFORMATION.
(a) Employee represents that she has returned or will
immediately return to Employer all "Company Information," including,
without limitation, customer information, formulary information,
product and pricing information, mailing lists, reports, files,
memoranda, records and software, credit cards, door and file keys,
computer equipment, computer access codes and disks and instructional
manuals, and other property which Employee received or prepared or
helped prepare in connection with Employee's employment with Employer,
and Employee will not retain any copies, duplicates, reproductions or
excerpts thereof. The term "Company Information" as used in this
Agreement means (i) confidential information of Employer, including
without limitation information received from third parties under
confidential conditions, and (ii) other information; including
technical, business or financial information or trade secrets, the use
or disclosure of which might reasonably be construed to be contrary to
the interests of Employer or its affiliates.
Notwithstanding the foregoing, Employee may, if she
desires, keep material and or notes that are of a personal nature which
were accumulated or prepared during her employment with Employer.
Employee agrees to provide Employer with a list of such retained
material with a general reference as to the contents. Such material or
notes will be kept confidential (except in response to subpoena) and
will remain available for review by Employer, should Employer elect to
review them, for as long as they are retained by Employee.
(b) The parties agree that in the course of Employee's
employment, Employee has acquired Company Information as defined in
paragraph 12(a). Employee understands and agrees that such Company
Information has been disclosed to Employee in confidence and for the
use only on behalf of Employer. Employee acknowledges that she has no
ownership right or interest in any Company Information used or
developed during the course of her employment. Employee understands and
agrees that (i) Employee will keep such Company Information
confidential at all times after her employment with Employer, and (ii)
Employee will not make use of Company Information on her own behalf, or
on behalf of any third party.
(c) Employee further acknowledges that she was privy to
confidential and privileged information during the course of her
employment in her capacity as Executive Vice President, Corporate
Resources Group.
(d) Employee will be permitted to retain the computer and fax
machine provided by Hercules and will be disconnected effective July 1,
2001 from Hercules
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provided internet, intranet and other telephone line connections. In
consideration of Hercules transferring such computer and fax equipment
to Employee, Employee will cooperate with Hercules to download and
transfer to Hercules all files contained therein and thereupon erase
such files from the computer.
13. GENERAL RELEASE OF CLAIMS AND COVENANT NOT TO XXX. Employee for herself
and her respective heirs, administrators, executors, agents,
beneficiaries and assigns, does waive, release and forever discharge
Employer (as defined below) of and from any and all Claims (as defined
below). Employee agrees not to file a lawsuit to assert any Claim and
further agrees that she will not counsel, assist or encourage any other
person to assert any rights or demands or causes of action against
Employer or to counsel, assist or encourage any other person to seek
any damages, penalties, losses, attorneys' fees, costs or expenses
against Employer, provided, however, that this sentence shall not be
construed to prevent or apply to any testimony that Employee may
provide pursuant to subpoena. This release covers all Claims arising
from the beginning of time up to and including the date of this
Agreement, but does not cover Claims relating to the validity or
enforcement of this Agreement, or to Claims for legally mandated
benefits and vested benefits under any qualified or nonqualified
savings and pension plans or welfare plans in which Employee may have
participated or will continue to participate in, or any other rights or
claims that may arise after this Agreement is executed.
The following provisions further explain this general release
and covenant not to xxx:
(a) DEFINITION OF "CLAIMS". "Claims" includes without
limitation all actions or demands of any kind that Employee now has, or
may have or claim to have in the future. More specifically, Claims
include rights, causes of action, damages, penalties, losses,
attorneys' fees, costs, expenses, obligations, agreements, judgments
and all other liabilities of any kind or description whatsoever, either
in law or in equity, whether known or unknown, suspected or
unsuspected.
The nature of Claims covered by this release and covenant not
to xxx includes without limitation all actions or demands in any way
based on Employee's employment with Employer, the terms and conditions
of such employment or Employee's separation from employment except as
to those rights, benefits and obligations set forth in and granted by
this Agreement. More specifically, all of the following are among the
types of Claims which are waived and barred by this release and
covenant not to xxx:
- Contract Claims (whether express or implied);
- Tort Claims, such as for defamation or emotional distress;
- Claims under federal, state and municipal laws, regulations,
ordinance or court decisions of any kind;
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- Claims of discrimination, harassment or retaliation, whether
based on race, color, religion, gender, sex, age, sexual
orientation, handicap and/or disability, national origin or
any other legally protected class;
- Claims under the AGE DISCRIMINATION IN EMPLOYMENT ACT, Title
VII of the Civil Rights Act of 1964, as amended, the Americans
with Disabilities Act and similar state statutes and municipal
ordinances;
- Claims under the Employee Retirement Income Security Act, the
Fair Labor Standards Act, state wage payment laws and state
wage and hour laws;
- Claims for wrongful discharge; and
- Claims for reasonable attorneys' fees, including litigation
expenses and costs.
- Claims made pursuant to the letters ("Letters") and subject
matters of the "Letters" listed in Attachment A hereto, except
as specifically provided herein.
Nothing contained in the foregoing portion of this paragraph
13 shall be construed to release Employer, or any insurance carrier
providing insurance coverage to Employer or its directors and officers,
from any obligation (if any exists) which Employer or such insurance
carrier may otherwise have to defend or indemnify Employee in any
action, suit or proceeding brought by a third party against Employee
based on or arising from Employee's actions as an officer of Employer
prior to the Separation Date.
(b) DEFINITION OF "EMPLOYER". "Employer" includes without
limitation Hercules Incorporated and its respective past, present and
future parents, affiliates, subsidiaries, divisions, predecessors,
successors, assigns, employee benefit plans and trusts. It also
includes all past, present and future managers, directors, officers,
partners, agents, employees, attorneys, representatives, consultants,
associates, fiduciaries, plan sponsors, administrators and trustees of
each of the foregoing.
(c) EMPLOYEE'S ACKNOWLEDGMENT OF SCOPE OF RELEASE. Employee
declares and agrees that any Claims she may have incurred or sustained
may not be fully known to her and may be more numerous and more serious
than she now believes or expects. Further, in making this Agreement,
Employee relies wholly upon her own judgment of the future development,
progress and result of said Claims, both known and unknown, and
acknowledges that she has not been influenced to any extent whatsoever
in the making of this Agreement by any representations or statements
regarding said Claims made by individuals or entities who are within
the definition of Employer above. Employee further acknowledges that
she accepts the terms herein in full settlement and satisfaction of all
such Claims.
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14. AGREEMENT CONFIDENTIAL. Employee agrees to keep this Agreement and its
terms confidential except as may be required to enforce the Agreement
or to obtain legal or tax advice.
15. NON-DISPARAGEMENT. Employer and Employee agree that they will not
engage in any activity or make any statement that may disparage or
reflect negatively on Employer or Employee, including those entities
and individuals related to Employer as defined in the Release section
of this Agreement.
16. CONSIDERATION PERIOD. Employee acknowledges that she is being provided
with a period of twenty-one (21) days to consider the terms of this
offer from the date this Agreement first was presented to her on June
21, 2001. Employee agrees that any changes to this offer, whether
material or immaterial, will not restart the running of the 21-day
period.
- Employee agrees to notify Employer of her acceptance of this
Agreement by delivering a signed and witnessed copy to
Employer, addressed to the attention of Xxxxxx X. Xxxxxxxxxx,
no later than July 13, 2001. Should Employee not accept this
Agreement, she shall continue as an active employee without
break in service. Employee understands that she may take the
entire 21-day period to consider this Agreement. Employee may
return this Agreement in less than the full 21-day period only
if her decision to shorten the consideration period is knowing
and voluntary and was not induced in any way by Employer.
- By signing and returning this Agreement, Employee acknowledges
that the consideration period afforded Employee a reasonable
period of time to consider fully each and every term of this
Agreement, including the release and covenant not to xxx, and
that Employee has given the terms full and complete
consideration.
17. REVOCATION PERIOD. Employee acknowledges that she shall have seven (7)
days after signing this Agreement to revoke it if she chooses to do so.
If Employee elects to revoke this Agreement, she shall give written
notice of revocation to Employer by delivering it to X. X. Xxxxxxxxxx
in such a manner that it is actually received within the seven-day
period.
18. ADVICE TO CONSULT LEGAL REPRESENTATIVE. Employee acknowledges that she
has consulted with legal counsel of her choosing, at her own expense,
regarding the meaning and binding effect of this Agreement before
signing it.
19. KNOWING AND VOLUNTARY AGREEMENT. Employee, intending to be legally
bound hereby, certifies and warrants that she has read carefully this
Agreement and has executed it voluntarily and with full knowledge and
understanding of its significance, meaning and binding effect. Employee
further declares that she is competent to understand the content and
effect of this Agreement, and that her decision to enter into this
Agreement has not been influenced in any way by fraud, duress,
coercion, mistake or misleading information.
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20. HEADINGS. The headings contained in this Agreement are not a part of
the Agreement and are included solely for ease of reference.
21. INTEGRATION AND MODIFICATION. Employee declares and represents that no
promise or agreement has been made to her other than those expressed
herein. Except as stated herein, this Agreement constitutes the entire
agreement of the parties and supersedes all prior understandings,
whether oral or written, between them. Any modification of this
Agreement must be made in writing and signed by all parties.
22. SEVERABILITY. If any provision of this Agreement is or shall be
declared invalid or unenforceable by a court of competent jurisdiction,
the remaining provisions shall not be affected thereby and shall remain
in full force and effect.
23. GOVERNING LAW. Except to the extent any such laws are preempted by
Federal law, the parties agree that the terms of this Agreement shall
be governed by the laws of Delaware without giving effect to the choice
of laws principles of any state, and that either party may pursue
its/her respective rights hereunder in any court of competent
jurisdiction.
IN WITNESS WHEREOF, and with the intention of being legally
bound, the parties have executed this Agreement on the dates noted below.
AGREED TO AND ACCEPTED
/s/ June X. Xxxxx
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June X. Xxxxx
Date: June 22, 2001
HERCULES INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Title: Office of Chairman
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Date: June 22, 2001
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ATTACHMENT A
"LETTERS"
DATE AUTHOR SUBJECT MATTER
February 15, 2000 X.X. Xxxxx Executive Benefits
February 18, 2000 X.X. Fluir Stock Option Award
Certificate
April 13, 2000 X.X. Xxxxx Executive Benefits
June 5, 2000 X.X. Xxxxx Executive Benefits
June 30, 2000 X.X. Xxxxx Executive Benefits
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