RESTATED AGREEMENT AND GENERAL RELEASE
Exhibit 10.4
RESTATED
AGREEMENT AND GENERAL RELEASE
Celanese
Corporation, its Subsidiaries and its Affiliates, (“Employer”) 0000 Xxxx XXX
Xxxxxxx, Xxxxxx, Xxxxx 00000, and Xxxxxx X. Xxxxxx, his heirs,
executors, administrators, successors, and assigns (“Former Employee ”), agree
that:
1.
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Last Day of Employment
(Separation Date). The last day of employment with Celanese is
April 10,
2009.
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2.
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Consideration. In
consideration for signing this Agreement and General Release (hereinafter
the “Agreement”) and compliance with the promises made herein, Employer
and Former Employee agree:
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a.
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Retention on Payroll.
The Employer will retain Employee on the payroll until the separation
date.
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b.
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Separation Pay. The
Company will provide a separation payment in an amount equal to $395,778, representing
the Employee’s current annual base salary plus target bonus in effect at
the time of separation. Such amount shall be paid in a lump sum, within 30
calendar days after Former Employee signs and returns this Agreement and a
signed copy of the letter attached as Exhibit A.
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c.
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Bonus. Former Employee
will be eligible to receive a bonus payout for 2008 based on Company
performance without modification for Employee’s individual performance (a
1.0 modifier) under the same terms and conditions as other employees who
receive a 2008 bonus payout. The 2008 bonus will be payable on or before
March 15, 2009.Employee will be eligible for a prorated bonus payout
for 2009, minus lawful deductions. The prorated payout will be based on
his/her separation date (4-10-09). It will be paid at Target and based on
an individual performance modifier of 1.0.; in the amount of $34,125 minus lawful
deductions. The 2009 prorated bonus will be payable within 30 calendar
days after Former Employee signs and returns this Agreement and a signed
copy of the letter attached as Exhibit A.
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d.
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Long Term Incentive
Awards. Former Employee will continue to receive certain benefits
provided under the various Long Term Incentive (LTI) Award
Agreements, summarized as follows:
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(i) 2006
Stock Option Award. With respect to the
stock options awarded to the Former Employee pursuant to the Nonqualified Stock
Option Award Agreement made effective May 16, 2006, the Employee will continue
to vest in 10,000 stock options on January 1, 2010. Once vested, these
stock options, along with any stock options previously vested pursuant to this
award, shall be exercisable by the Employee through April 10, 2010. The
remaining 10,000 unvested stock options scheduled to vest on January 1,
2011, will be canceled on the separation date with no additional
consideration.
(ii)
2007
Performance-Based Restricted Stock Unit Award. With respect to the
Performance-Based Restricted Stock Unit (RSU) Agreement between the Company
and the Former Employee made effective April 2, 2007, the Employee will
continue to vest in a prorated portion of the target award on the scheduled
vesting dates and in the amounts outlined on the following schedule, where the
actual number of RSUs that vest will be determined based on the Company’s
achievement of the performance goals pursuant to the terms of the award
agreement and as generally applied to all recipients of such Performance-Based
RSU awards:
-1-
Calculation and Vesting of
the 2007 Performance-Based RSU Award:
Original
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Prorated
Target
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||||||||||
Performance
Period
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Target
Award
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Proration
Formula
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Award*
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Vesting
Date
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April 1,
2007 to
September 30,
2009
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3,125
RSUs
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(25/30)
months
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2,604
RSUs
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October 1,
2009
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April 1,
2007 to
September 30,
2010
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3,125
RSUs
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(25/42)
months
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1,860
RSUs
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October 1,
2010
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April 1,
2007 to
September 30,
2011
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3,125
RSUs
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(25/54)
months
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1,447
RSUs
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October 1,
2011
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Totals
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9,375
RSUs
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5,911
RSUs
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*
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The
actual number of RSUs that vest will range between 0% and 150% of the
Prorated Target Award based on the Company’s achievement of the
performance goals
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The
remaining unvested portion of the 2007 Performance-Based RSU award issued
pursuant to the award agreements will be canceled on the separation date with no
additional consideration.
(iii) 2008
Stock Option Award. With respect to the
stock options awarded to the Former Employee pursuant to the Nonqualified Stock
Option Award Agreement made effective February 7, 2008, the Employee will
continue to vest in 2,500 stock options on February 8, 2010. Once vested,
these stock options, along with the 2,500 stock options that previously vested
on February 9, 2009, shall be exercisable by the Employee through April 10, 2010. The
remaining 5,000 unvested stock options will be canceled on the separation date
with no additional consideration.
(iv)
2008
Performance-Vesting RSU Award. With respect to the 2008
Performance-Vesting RSU Award Agreement made effective December 11, 2008,
the Former Employee will continue to vest in a prorated portion of the target
award on the scheduled vesting date in an amount outlined on the following
schedule, where the actual number of RSUs that vest will be determined based on
the Company’s achievement of the performance goals pursuant to the terms of the
award agreement and as generally applied to all recipients of such Performance
RSU awards:
Calculation and Vesting of
the 2008 Performance-Vesting RSU Award:
Original
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Prorated
Target
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|||||||||||
Service
Period
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Target
Award
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Proration
Formula
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Award*
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Vesting
Date
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December 11,
2008
to
October 14, 2011
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3,400
RSUs
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(4/34)
months
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000
XXXx
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October 14,
2011
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*
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The
actual number of RSUs that vest will range between 0% and 225% of the
Prorated Target Award based on the Company’s achievement of the
performance goals
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-2-
The
remaining unvested portion of the 2008 Performance-Vesting RSU award issued
pursuant to the award agreement will be canceled on the separation date with no
additional consideration.
(v) 2008
Long-Term Incentive Cash Award. With respect to the 2008 LTI Cash Award
Agreement made effective December 11, 2008, the Employee will receive a
prorated portion of Cash Award in the amount of $17,530 (representing 4/34ths of
the $149,000 Cash Award). The prorated amount will be payable to the Former
Employee, minus lawful deductions, on the next available pay period after the
separation date and after Former Employee signs and returns this Agreement and a
signed copy of the letter attached as Exhibit A. The remaining unvested
portion of the 2008 LTI Cash Award will be canceled on the separation date with
no additional consideration.
e.
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Relocation and Continuing
Education Costs. Employer waives any obligation for the Former
Employee to reimburse the Company for Relocation or Continuing Education
costs paid directly or reimbursed by the Company.
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f.
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Pension and Savings Plan
Vesting. Former Employee will be vested in the Company’s pension
plan according to the provisions of the plan in effect at the time of
separation. Employee will be 100% vested in the 401(k) savings
plan.
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g.
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Unused Vacation. The
Employer will pay to Former Employee wages for prorated unused vacation
for 2009, and any vacation carried over from 2008 (as approved by
Employee’s supervisor), under the standard procedure for calculating and
paying any unused vacation to separated employees. The gross amount due (
$5,235), minus lawful deductions, will be payable within thirty
(30) days of Former Employee signing and returning this Agreement and
a signed copy of the letter attached as Exhibit A.
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h.
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Company Benefit Plans.
Medical & dental coverage will continue until the last day of the
month in which Employee separates from service, according to Former
Employee’s medical & dental plan elections in place at the time of
separation. All other normal company programs (i.e., vision, company
provided life insurance, long term disability, 401(k) contributions, etc.)
will continue through the date of separation.
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i.
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COBRA Premium Reimbursement and
Continued Plan Coverage. If Former Employee elects to continue
coverage (and the coverage of eligible family members) under the
Employer’s medical and dental plans for active employees pursuant to the
requirements of the Consolidated Omnibus Reconciliation Act of 1985, as
amended (“COBRA”), Employer shall reimburse the Employee for each monthly
COBRA premium paid by the Employee for a period of twelve (12) months
following the date of Employee’s separation, or through April 30,
2010, whichever is later.
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Following
the expiration of the Former Employee’s COBRA coverage, the Employee may
continue his coverage (and the coverage of those eligible family members who
have exhausted their COBRA coverage) under the Employer’s medical plan for
active employees until the Employee attains age 65 provided that the Employee
pays each required monthly premium no later than the thirtieth (30) day of
the calendar month for which such monthly premium is due. The required monthly
premium for this continued medical plan coverage shall be the greater of
(i) the monthly COBRA premium under the Employer’s medical plan for active
employees, or (ii) the monthly retiree premium under the Employer’s medical plan
for retirees, as applicable to the type of coverage elected by the Employee for
each month of the Employee’s continued medical plan coverage. This right to
continue medical plan coverage beyond the COBRA coverage period shall terminate
as of the first day of the calendar month for which the Employee fails to timely
pay the required monthly premium in full.
-3-
j.
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Unemployment. Employer
will not contest any unemployment claims made by the Former
Employee.
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k.
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Outplacement Service.
Employer will provide Outplacement services for a period of up to twelve
(12) months following separation.
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l.
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Return of Company
Property. Former Employee will surrender to Employer, on his last
day of employment, all company materials, including, but not limited to
his company car, laptop computer, phone, credit card, calling cards, etc.
Employee will be responsible for resolving any outstanding balances on the
company credit card.
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x.
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Xxxxxx Xxxxxx Executive
Physical. Former Employee is eligible for a company paid
executive-level physical in 2009. To be eligible for a company paid
physical, it must occur before 12/31/09.
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n.
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Withholding. The
payments and other benefits provided under this Agreement shall be reduced
by applicable withholding taxes and other lawful deductions.
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3.
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Receipt of Employee
Lists. Employee acknowledges, attached at Exhibit B, he has
received a list of the employees selected for separation; including their
job titles and ages. In addition, employee acknowledges he has received a
list of employees not selected for separation; including their job titles
and ages.
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4.
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No Consideration Absent
Execution of this Agreement. Former Employee understands and agrees
that he would not receive the monies and/or benefits specified in
Paragraph “2” above, except for the execution of this Agreement and
General Release and the fulfillment of the promises contained
herein.
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5.
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General Release of
Claims. Former Employee knowingly and voluntarily releases and
forever discharges, to the full extent permitted by law, in all countries,
including but not limited to the U.S., UK and Germany, the Employer, its
parent corporation, affiliates, subsidiaries, divisions, predecessors,
successors and assigns and the current and former employees, officers,
directors and agents thereof (collectively referred to throughout the
remainder of this Agreement as “Employer”), of and from any and all
claims, known and unknown, asserted and unasserted, Employee has or may
have against Employer as of the date of execution of this Agreement and
General Release, including, but not limited to, any alleged violation
of:
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•
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Title
VII of the Civil Rights Act of 1964, as amended;
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•
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The
Civil Rights Act of 1991;
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Sections 1981
through 1988 of Title 42 of the United States Code, as
amended;
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The
Employee Retirement Income Security Act of 1974, as
amended;
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The
Immigration Reform and Control Act, as amended;
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•
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The
Americans with Disabilities Act of 1990, as amended;
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The
Age Discrimination in Employment Act of 1967, as
amended;
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•
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The
Workers Adjustment and Retraining Notification Act, as
amended;
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-4-
•
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The
Occupational Safety and Health Act, as amended;
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•
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The
Xxxxxxxx-Xxxxx Act of 2002;
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•
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The
Texas Civil Rights Act, as amended;
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•
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The
Texas Minimum Wage Law, as amended;
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Equal
Pay Law for Texas, as amended;
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Any
other federal, state or local civil or human rights law, or any other
local, state or federal law, regulation or ordinance; or any law,
regulation or ordinance of a foreign country, including but not limited to
the Federal Republic of Germany and the United Kingdom.
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Any
public policy, contract, tort, or common law.
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The
employment, labor and benefits laws and regulations in all countries in
addition to the U.S. including but not limited to the UK and
Germany.
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Any
claim for costs, fees, or other expenses including attorneys’ fees
incurred in these matters.
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6.
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Affirmations. Former
Employee affirms that he has not filed, caused to be filed, or presently
is a party to any claim, complaint, or action against Employer in any
forum or form. Provided, however, that the foregoing does not affect any
right to file an administrative charge with the Equal Employment
Opportunity Commission (“EEOC”), subject to the restriction that if any
such charge is filed, Employee agrees not to violate the confidentiality
provisions of this Agreement and Employee further agrees and covenants
that should he or any other person, organization, or other entity file,
charge, claim, xxx or cause or permit to be filed any charge with the
EEOC, civil action, suit or legal proceeding against the Employer
involving any matter occurring at any time in the past, Employee will not
seek or accept any personal relief (including, but not limited to,
monetary award, recovery, relief or settlement) in such charge, civil
action, suit or proceeding.
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Former
Employee further affirms that he has reported all hours worked as of the date of
this release and has been paid and/or has received all leave (paid or unpaid),
compensation, wages, bonuses, commissions, and/or 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 provided in this Agreement
and General Release. Employee furthermore affirms that he has no known workplace
injuries or occupational diseases and has been provided and/or has not been
denied any leave requested under the Family and Medical Leave Act.
7.
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Confidentiality. Except
as may be required by law, Former Employee and Employer agree not to
disclose any information regarding the existence or substance of this
Agreement and General Release, except to his spouse, tax advisor, and an
attorney with whom Employee chooses to consult regarding his consideration
of this Agreement and General Release.
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Former
Employee agrees and recognizes that any knowledge or information of any type
whatsoever of a confidential nature relating to the business of the Employer or
any of its subsidiaries, divisions or affiliates, including, without limitation,
all types of trade secrets, client lists or information, employee lists or
information, information regarding product development, marketing plans,
management organization, operating policies or manuals, performance results,
business plans, financial records, or other financial, commercial, business or
technical information (collectively “Confidential Information”), must be
protected as confidential, not copied, disclosed or used other than for the
benefit of the Employer at any time unless and until such knowledge or
information is in the public domain through no wrongful act by Employee.
Employee further agrees not to divulge to anyone (other than the Employer or any
persons employed or designated by the Employer), publish or make use of any such
Confidential Information without the prior written consent of the Employer,
except by an order of a court having competent jurisdiction or under subpoena
from an appropriate government agency.
-5-
8.
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Non-competition/Non-solicitation. Former Employee acknowledges and
recognizes the highly competitive nature of the business of the Employer.
Without the express written permission of Celanese, for a period of fifty
two (52) weeks, following the Separation Date (the “Restricted
Period”), Employee acknowledges and agrees that he will not:
(i) directly or indirectly solicit sales of like products similar to
those produced or sold by Celanese; (ii) directly engage or become
employed in a function with like responsibilities as at Celanese with any
business that competes with the business of Celanese, including but not
limited to: direct sales, supply chain, marketing, or manufacturing for a
producer of products similar to those produced or licensed by Celanese; or
(iii) for a period of two years from the separation date, directly or
indirectly solicit or hire employees of Celanese for employment. Provided
however, that nothing in this provision shall restrict Employee from
owning solely as an investment, publicly traded securities of any company
which is engaged in the business of Celanese, if Employee (i) is not
a controlling person of, or a member of a group which controls; and
(ii) does not, directly or indirectly, own 5% or more of any class of
securities of any such company.
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9.
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Governing Law and
Interpretation. This Agreement and General Release shall be
governed and conformed in accordance with the laws of the state of Texas
without regard to its conflict of laws provision. In the event the
Employee or Employer breaches any provision of this Agreement and General
Release, Employee and Employer affirm that either may institute an action
to specifically enforce any term or terms of this Agreement and General
Release. 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.
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10.
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No Admission of
Wrongdoing. The parties agree that neither this Agreement and
General Release nor the furnishing of the consideration for this Release
shall be deemed or construed at anytime for any purpose as an admission by
Employer of any liability or unlawful conduct of any
kind.
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11.
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Non-Disparagement. Former
Employee agrees not to disparage, or make disparaging remarks or send any
disparaging communications concerning, the Employer, its reputation, its
business, and/or its directors, officers, managers. Likewise the
Employer’s senior management agrees not to disparage, or make any
disparaging remark or send any disparaging communication concerning
Employee, his reputation and/or business.
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12.
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Neutral Reference. If
contacted by another organization, the Employer will only provide dates of
employment and that the Former Employee voluntarily resigned from the
Company.
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13.
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Future Cooperation after
Separation Date. After separation, Former Employee agrees to make
reasonable efforts to assist Company including but not limited to:
assisting with transition duties, assisting with issues that arise after
separation of employment and assisting with the defense or prosecution of
any lawsuit or claim. This includes but is not limited to providing
deposition testimony, attending hearings and testifying on behalf of the
Company. The Company will reimburse Employee for reasonable time and
expenses in connection with any future cooperation after the separation
date. Time and expenses can include loss of pay or using vacation time at
a future employer. The Company shall reimburse the Former Employee within
30 days of remittance by him to the Company of such time and expenses
incurred, but in no event later than the end of the Employee’s tax year
following the tax year in which he incurs such time and expenses and such
reimbursement obligation shall remain in effect for five years and the
amount of expenses eligible for reimbursement
hereunder during his tax year will not affect the expenses eligible for
reimbursement in any other tax
year.
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-6-
14.
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Injunctive Relief.
Former Employee agrees and acknowledges that the Employer will be
irreparably harmed by any breach, or threatened breach by him of this
Agreement and that monetary damages would be grossly inadequate.
Accordingly, he agrees that in the event of a breach, or threatened breach
by him of this Agreement the Employer shall be entitled to apply for
immediate injunctive or other preliminary or equitable relief, as
appropriate, in addition to all other remedies at law or
equity.
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15.
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Review Period. Former
Employee is hereby advised that he has up to (45) calendar days to
review this Agreement and General Release and to consult with an attorney
prior to execution of this Agreement and General Release. He agrees that
any modifications, material or otherwise, made to this Agreement and
General Release do not restart or affect in any manner the original
(45) calendar day consideration period.
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16.
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Revocation Period. In
the event that Former Employee elects to sign and return to the Employer a
copy of their Agreement, he has a period of seven (7) days (the
“Revocation Period”) following the date of such return to revoke this
Agreement, which revocation must be in writing and delivered to the
Employer within the Revocation Period. This Agreement will not be
effective or enforceable until the expiration of the Revocation
Period.
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17.
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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.
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18.
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Entire Agreement. This
Agreement and General Release sets forth the entire agreement between the
parties hereto, and fully supersedes any prior obligation of the Employer
to the Former Employee. Former Employee acknowledges that he has not
relied on any representations, promises, or agreements of any kind made to
him in connection with the decision to accept this Agreement and General
Release, except for those set forth in this Agreement and General
Release.
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19.
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HAVING
ELECTED TO EXECUTE THIS AGREEMENT AND GENERAL RELEASE, TO FULFILL THE
PROMISES AND TO RECEIVE THE SUMS AND BENEFITS IN PARAGRAPH “2” ABOVE,
FORMER EMPLOYEE FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS
INTO THIS AGREEMENT AND GENERAL RELEASE INTENDING TO WAIVE, SETTLE AND
RELEASE ALL CLAIMS HE HAS OR MIGHT HAVE AGAINST
EMPLOYER.
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IN
WITNESS WHEREOF, the parties hereto knowingly and voluntarily executed this
Agreement and General Release as of the date set forth below:
Former
Employee:
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Date:
June 3, 2009
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Date:
June 3, 2009
-8-
EXHIBIT
A
Strictly
Confidential
Ms. Xxxx
Xxxxxxx
Celanese
0000 Xxxx
XXX Xxxxxxx
Xxxxxx,
Xxxxx 00000
Re: Agreement
and General Release
Dear
Xxxx:
On 6/3/09 I executed an Agreement and
General Release between Celanese and me. I advised by Celanese, in
writing, to consult with an attorney or my choosing, prior to executing this
Agreement and General Release.
I have at no time revoked my acceptance
or execution of that Agreement and General Release and hereby reaffirm my
acceptance of that Agreement and General Release. Therefore, in
accordance with the terms of our Agreement and General Release, hereby request
payment of the monies described in Paragraph 2 of that Agreement.
Very
truly yours,
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X.
Xxxxxx
-10-
EXHIBIT
B
1.
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Employees
in Decisional Unit Selected:
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Job
Title Age
·
|
VP
& Corporate
Controller 43
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2.
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Employees
in Decisional Unit Not Selected:
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Job
Title Age
·
|
VP
&
Treasurer 42
|
·
|
VP
Global
Tax 39
|