Exhibit 10.2
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made
by and between Solutia Inc., a Delaware corporation (the "Company"), and Xxxxxx
X. Xxxxx (the "Executive"), effective as of the 11th day of April, 2007 (the
"Effective Date"), and has been approved by the United States Bankruptcy Court
for the Southern District of New York (the "Bankruptcy Court").
WHEREAS, the Company and the Executive are currently parties to an
Executive Employment Agreement originally dated as of the 19th day of July,
2004, and amended and restated as of the 21st day of April, 2005; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its stakeholders
to assure that the Company will have the continued dedication of the Executive
until and for a period of time following the Emergence Date (as defined below).
To induce the Executive to continue to serve the Company through and beyond the
Emergence Date, the Company will provide the Executive with, among other things,
a special emergence bonus. It is the Board's judgment that such a special
emergence bonus arrangement is in the best interest of the Company and its
stakeholders, and is consistent with the desire of the Board to maximize the
value of the Company. Therefore, in order to accomplish these objectives, the
Board has caused the Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Special Emergence Bonus.
At such time, if ever (the "Emergence Date"), at which the
Bankruptcy Court shall have confirmed a plan of reorganization of the Company
under Chapter 11 of the United States Bankruptcy Code (the "Chapter 11 Case")
and such plan shall have become effective, the Executive shall be entitled to
receive a special emergence bonus equal to 50% of the bonus pool as determined
pursuant to and in accordance with the terms of the Solutia Inc. Emergence
Incentive Bonus Program ("Emergence Bonus") as originally set forth and
previously agreed to in Executive's Employment Agreement dated July 19, 2004,
and amended and restated April 21, 2005. The Emergence Bonus Program is attached
hereto as Attachment I.
2. Employment Period. The Company hereby agrees to continue the Executive
in its employ, and the Executive hereby agrees to remain in the employ of the
Company subject to the terms and conditions of this Agreement, for the period
commencing on the Effective Date and ending on the date that is the six month
anniversary of the Emergence Date (the "Initial Term") and shall thereafter
automatically renew for an additional three (3) year period (the "Initial
Renewal Term"), unless sooner terminated during the Initial Term or Initial
Renewal Term in accordance with this Agreement or written notice is given by one
party to the other at least 90 days prior to the expiration of the Initial Term
or the Initial Renewal Term, as applicable. Upon completion of the Initial
Renewal Term, this Agreement shall thereafter automatically renew for additional
12 month periods (each, a "Subsequent Renewal Term"), unless sooner terminated
in accordance with this Agreement or written notice is given by one party to the
other at least 90
days prior to the expiration of the Initial Renewal Term or any Subsequent
Renewal Term, as applicable. The Initial Term, Initial Renewal Term and any
Subsequent Renewal Term are herein collectively referred to as the "Employment
Period."
Where the context permits, all references to the Company shall include an
affiliate of the Company by which the Executive is employed. As used in this
Agreement, the term "affiliate" or "affiliated companies" shall include any
company controlled by, controlling or under common control with the Company. The
obligations of the Company and the Executive under this Agreement including,
without limitation, the obligations under Sections 1, 5, 6 and 7, shall survive
the termination of the Employment Period to the extent necessary to accomplish
the purposes thereof.
3. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period, (A) the Executive shall
continue to serve as Chairman of the Board, President and Chief Executive
Officer of the Company, with such authority, duties, responsibilities and
reporting requirements as may be reasonably assigned to him from time to
time by the Board and (B) the Executive's services shall continue to be
performed at the location where the Executive was employed immediately
preceding the Effective Date or at any office or location of the Company
not more than 50 miles from the Company's headquarters in St. Louis,
Missouri.
(ii) During the Employment Period, the Executive shall serve
the Company faithfully, diligently and to the best of his ability, and
shall devote substantially all of his time and efforts during normal
business hours to the business and affairs of the Company. During the
Employment Period it shall not be a violation of this Agreement for the
Executive to (A) deliver lectures, fulfill speaking engagements or teach
at educational institutions, and (B) manage personal investments, so long
as such activities described in clauses A and B do not interfere with the
performance of the Executive's responsibilities as an employee of the
Company in accordance with this Agreement, and (C) with the advance
approval of the Board, serve on corporate, civic or charitable boards or
committees.
(b) Compensation.
(i) Base Salary. During the Employment Period, the Executive
shall receive an annual base salary ("Annual Base Salary") of not less
than $825,000, which shall be paid in accordance with the Company's normal
payroll practice and shall apply retroactively to January 1, 2007.
Thereafter, the Board or the Executive Compensation and Development
Committee of the Board ("ECDC") shall review annually Executive's
compensation and may elect to increase his Annual Base Salary.
(ii) Annual Bonuses. In addition to Annual Base Salary, the
Executive shall participate in the Company's Annual Incentive Program, or
any successor annual bonus plan(s), with a target annual bonus opportunity
of not less than 150% of his Annual
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Base Salary. In addition, during the Employment Period, the Executive
shall be entitled to participate in all long-term and other incentive
plans, practices, policies and programs generally applicable to senior
executive officers of the Company and its affiliated companies.
(iii) Equity Compensation. During the Employment Period, the
Executive shall have the right to participate in an equity compensation
arrangement to be established by the Board or the ECDC of the Board and
subject to such terms and conditions as will be determined by the Board in
its sole discretion.
(iv) Savings and Retirement Plans. During the Employment
Period, the Executive shall be entitled to participate in all savings and
retirement plans, practices, policies and programs generally applicable to
senior executive officers of the Company and its affiliated companies,
subject to the Board's authority to modify or terminate any such plans,
practices, policies or programs on a Company-wide basis at any time.
(v) Welfare Benefit Plans. During the Employment Period, the
Executive and/or the Executive's family, as the case may be, shall be
eligible for participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided by the Company
and its affiliated companies (including, without limitation, medical,
prescription drug, dental, disability, salary continuance, employee life,
group life, accidental death and travel accident insurance plans and
programs) to the extent generally applicable to senior executive officers
of the Company and its affiliated companies, subject to the Board's
authority to modify or terminate any such plans, practices, policies or
programs on a Company-wide basis at any time.
(vi) Expenses. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement, in accordance with
Company policy, for all reasonable expenses incurred by the Executive in
performing his duties hereunder.
(vii) Vacation. During the Employment Period, the Executive
shall be entitled to paid vacation in accordance with the plans, policies,
programs and practices of the Company and its affiliated companies as in
effect from time to time.
4. Termination of Employment.
(a) Death or Disability. The Executive's employment shall terminate
automatically upon the Executive's death during the Employment Period. If the
Company determines in good faith that the Disability of the Executive has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to the Executive written notice in accordance with
Section 9(b) of this Agreement of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company shall
terminate effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective Date"), provided that, within the 30 days
after such receipt, the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the Executive's long-term disability for
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purposes of any reasonable occupation as determined under the Company's
disability plan that is applicable to the Executive.
(b) Cause. The Company may terminate the Executive's employment
during the Employment Period for Cause. For purposes of this Agreement, "Cause"
shall mean:
(i) the willful and continued failure of the Executive to
perform substantially the Executive's duties with the Company or one of
its affiliates (other than any such failure resulting from incapacity due
to physical or mental illness), after a written demand for substantial
performance is delivered to the Executive by the Board of the Company
which specifically identifies the manner in which the Board believes that
the Executive has not substantially performed the Executive's duties;
(ii) the willful engaging by the Executive in illegal conduct
or gross misconduct which is materially and demonstrably injurious to the
Company;
(iii) the Executive's conviction of, or plea of guilty or no
contest to, a felony or any other crime involving moral turpitude, fraud,
theft, embezzlement or dishonesty; or
(iv) the Executive's habitual drug or alcohol abuse.
For purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or based upon the advice of counsel for the Company shall
be conclusively presumed to be done, or omitted to be done, by the Executive in
good faith and in the best interests of the Company. The cessation of employment
of the Executive shall not be deemed to be for Cause unless and until there
shall have been delivered to the Executive a copy of a resolution duly adopted
by the affirmative vote of not less than a majority of the entire membership of
the Board at a meeting of the Board called and held for such purpose (after
reasonable notice is provided to the Executive and the Executive is given an
opportunity, together with counsel, in the case of conduct described in
subparagraph (i) or (ii) above, to be heard before the Board), finding that, in
the good faith opinion of the Board, the Executive is guilty of the conduct
described in subparagraph (i),(ii), (iii) or (iv) above, and specifying the
particulars thereof in detail.
(c) Good Reason. The Executive's employment may be terminated by the
Executive for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean:
(i) a material failure by the Company to comply with any of
the provisions of Section 3(b) of this Agreement relating to compensation,
other than an isolated, insubstantial and inadvertent failure not
occurring in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive;
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(ii) the assignment to the Executive of any duties
inconsistent in any respect with the Executive's position as Chairman of
the Board, President and Chief Executive Officer and the authority, duties
and responsibilities contemplated by Section 3(a) of this Agreement, or
any other action by the Company, including a fundamental change to the
nature and scope of the Company's business, which results in a material
diminution in such position, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial and inadvertent
action not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the Executive;
(iii) the Company's requiring the Executive to be based at any
office or location other than as provided in Section 3(a)(i)(B) hereof or
the Company's requiring the Executive to travel on Company business to a
substantially greater extent than required immediately prior to the
Effective Date; provided, however, that the requirement that Executive
undertake such additional travel away from St. Louis, Missouri as is
reasonably required to enable him to fulfill his responsibilities in
connection with the Chapter 11 case shall not constitute "Good Reason"; or
(iv) Executive's receipt of the Company's written notice not
to renew the Agreement or the failure of the Company and the Executive to
enter into a new employment agreement by no later than the last day of the
Employment Period.
If the Executive terminates his employment for Good Reason pursuant to
subparagraph (ii) above as a result of a sale by the Company of substantially
all of its assets, then the Executive shall make himself available to the
Company as a paid independent consultant for such fee, at such times, over such
period of time and for such number of hours as the parties shall reasonably
agree, taking account of any new employment that the Executive may undertake.
(d) Notice of Termination. Any termination by the Company for Cause,
or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 9(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated and (iii) if the
Date of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the Executive
or the Company, respectively, from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be, (ii) if the Executive's
employment is terminated by the Company other than for Cause or
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Disability, the Date of Termination shall be the date on which the Company
notifies the Executive of such termination and (iii) if the Executive's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the Disability
Effective Date, as the case may be.
5. Obligations of the Company upon Termination.
(a) Good Reason; Other Than for Cause. Except as provided in Section
5(b) below, if, during the Employment Period, the Company shall terminate the
Executive's employment other than for Cause or the Executive shall terminate
employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in
cash within ten days of the Date of Termination (or, solely with respect
to any payment to be made pursuant to Section 5(a)(i)(D) below, such other
time as specified therein), the aggregate of the following amounts:
A. the sum of (1) the Executive's accrued Annual Base
Salary through the Date of Termination, (2) any unpaid annual bonus
earned by the Executive with respect to the previous year, and (3)
any accrued vacation pay, in each case to the extent not theretofore
paid (the sum of the amounts described in clauses (1), (2) and (3)
shall be hereinafter referred to as the "Accrued Obligations"); and
B. an amount equal to the payment the Executive would
have received under the Company's Annual Incentive Program for the
fiscal year of such termination in accordance with Section 3(b)(ii),
multiplied by the number of days that have transpired during that
fiscal year immediately prior to the Date of Termination, divided by
365; and
C. an amount equal to 200% of the sum of (i) the
Executive's Annual Base Salary immediately prior to the Date of
Termination and (ii) the average annualized payment the Executive
received for the 3 years (or such shorter period during which the
Executive has served as President and CEO of the Company)
immediately preceding the Date of Termination under the Company's
Annual Incentive Program (the "Severance Payment"); and
D. any unpaid portion of the Emergence Bonus, if any, to
be paid in the amount and in the manner defined herein in Attachment
I.
(ii) subject to the provisions of Section 9(f) hereof, to the
extent not theretofore paid or provided, the Company shall timely pay or
provide to the Executive any other amounts or benefits, excluding any
severance or separation pay or benefits, required to be paid or provided
or which the Executive is eligible to receive under any plan, program,
policy, practice, contract or agreement of the Company and its affiliated
companies, including, without limitation, the vested benefit, if any, of
the Executive under any qualified defined benefit or defined contribution
retirement plan of the Company and its affiliated companies in which the
Executive participates, in accordance
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with the terms of such plan (such other amounts and benefits shall be
hereinafter referred to as the "Other Benefits");
(iii) the Company shall continue to provide at its expense (on
the same basis as at the Executive's Date of Termination) for the
continued participation of the Executive and, to the extent applicable,
his family, in the Company's medical, dental, vision and life insurance
plans and programs, for a period of four months commencing with the Date
of Termination; and
(iv) upon request of the Executive, the Company shall provide
outplacement services to the Executive for up to twelve months and up to
an aggregate cost of $25,000.
(b) Change in Control. If the Company shall terminate the
Executive's employment other than for Cause or the Executive shall terminate
employment for Good Reason upon a Change in Control (pursuant to the definition
of Change in Control set forth below) or at any time within 24 months after the
Change in Control, then the Executive shall be entitled to receive (1) all
amounts as provided for in Section 5(a) hereof, provided, however, that the
Severance Payment under this Section 5(b) will be an amount equal to 250% of the
sum of (i) the Executive's Annual Base Salary immediately prior to the Date of
Termination and (ii) the average annualized payment the Executive received for
the 3 most recent years under the Company's Annual Incentive Program (or such
shorter period during which the Executive has served as President and CEO of the
Company), and (2) immediate vesting of all outstanding equity awards granted
pursuant to the Company's equity compensation plan as may be in effect from time
to time.
(i) For purposes of this Agreement, "Change in Control" shall
be deemed to have occurred if:
A. Any "person" (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act) is or becomes a "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing more than 50%
of the voting power of the then outstanding securities of the
Company, and such person owns more aggregate voting power of the
Company's then outstanding securities entitled to vote generally in
the election of directors than any other person;
B. The shareholders of the Company approve (or, if
shareholder approval is not required, the Board approves) an
agreement providing for (x) the merger or consolidation of the
Company with another corporation where the shareholders of the
Company, immediately prior to the merger or consolidation, will not
beneficially own, immediately after the merger or consolidation,
shares entitling such shareholders to 50% or more of all votes to
which all shareholders of the surviving corporation would be
entitled in the election of directors (without consideration of the
rights of any class of stock to elect directors by a separate class
vote), (y) the sale or other disposition of 50% or more of the
Company's assets that it owns as of the Effective Date of this
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Agreement, or (z) a liquidation or dissolution of the Company;
provided, however, the effectiveness of a plan of reorganization
pursuant to which a majority of the common stock of the reorganized
Company is distributed (i) to Persons who are (a) holders of claims
against the Company; (b) holders of equity interests in the Company;
and/or (c) designated in the Company's plan of reorganization
proposal dated December 8, 2006, to receive common stock of the
reorganized Company; or (ii) to or for the benefit of Company
management, shall not constitute a "Change in Control"; or
C. Directors are elected such that a majority of the
members of the Board shall have been members of the Board for less
than two years, unless the election or nomination for election of
each new director who was not a director at the beginning of such
two-year period was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning
of such period.
(c) Death. If the Executive's employment is terminated by reason of
the Executive's death during the Employment Period, this Agreement shall
terminate without further obligations to the Executive's legal representatives
under this Agreement, other than for timely payment or provision of the
following:
(i) Accrued Obligations;
(ii) Other Benefits; and
(iii) if such termination occurs on or after the Emergence
Date the entire amount, if any, to which Executive is entitled under the
Solutia Inc. Emergence Incentive Bonus Program.
Accrued Obligations shall be paid to the Executive's estate or beneficiary, as
applicable, in a lump sum in cash within 30 days of the Date of Termination.
(d) Disability. If the Executive's employment is terminated by
reason of the Executive's Disability during the Employment Period, this
Agreement shall terminate without further obligations to the Executive, other
than for timely payment or provision of the following:
(i) Accrued Obligations;
(ii) Other Benefits; and
(iii) if such termination occurs on or after the Emergence
Date the entire amount, if any, to which Executive is entitled under the
Solutia Inc. Emergence Incentive Bonus Program.
Accrued Obligations shall be paid to the Executive in a lump sum in cash within
30 days of the Date of Termination.
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(e) Cause. If the Executive's employment shall be terminated for
Cause during the Employment Period this Agreement shall terminate without
further obligations to the Executive, other than for Accrued Obligations and the
timely payment or provision of Other Benefits. In such case, all Accrued
Obligations shall be paid to the Executive in a lump sum in cash within 30 days
of the Date of Termination.
(f) Other than for Good Reason. If the Executive shall voluntarily
terminate employment after the Emergence Date, excluding a termination for Good
Reason, in addition to the Accrued Obligations Executive shall receive, to the
extent not already paid, the Emergence Bonus, if any, to which Executive is
entitled to under the Solutia Inc. Emergence Incentive Bonus Program.
6. Full Settlement; Legal Fees. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement, and such amounts
shall not be reduced whether or not the Executive obtains other employment. The
Company agrees to pay, to the full extent permitted by law, all legal fees and
expenses which the Executive may reasonably incur as a result of any contest, in
which the Executive is the prevailing party, by the Company, the Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (whether such contest
is between the Company and the Executive or between either of them and any third
party, and including as a result of any contest by the Executive about the
amount of any payment pursuant to this Agreement), plus in each case interest on
any payment from the time at which the liability for the applicable legal fees
and expenses was incurred by Executive, at the applicable Federal rate provided
for in Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended
(the "Code").
7. Confidential Information and Competitive Activity.
(a) Confidential Information. As used herein, "Confidential
Information" means all technical and business information of the Company and its
affiliated companies, whether patentable or not, which is of a confidential,
trade secret and/or proprietary character and which is either developed by the
Executive (alone or with others) or to which the Executive has had access during
the Executive's employment. "Confidential Information" shall also include
confidential evaluations of, and the confidential use or non-use by the Company
or any affiliated company of, technical or business information in the public
domain.
The Executive shall use the Executive's best efforts and diligence both
during and after employment by the Company to protect the confidential, trade
secret and/or proprietary character of all Confidential Information. The
Executive shall not, directly or indirectly, use (for the Executive or another)
or disclose any Confidential Information, for so long as it shall remain
proprietary or protectible as confidential or trade secret information, except
as may be necessary for the performance of the Executive's duties with the
Company.
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The Executive shall deliver promptly to the Company, at the termination of
the Executive's employment, or at any other time at the Company's request,
without retaining any copies, all documents and other material in the
Executive's possession relating, directly or indirectly, to any Confidential
Information.
Each of the Executive's obligations in this Section shall also apply to
the confidential, trade secret and proprietary information learned or acquired
by the Executive during the Executive's employment from others with whom the
Company or any affiliated company has a business relationship.
The Executive understands that the Executive is not to disclose to the
Company or any affiliated company, or use for its benefit, any of the
confidential, trade secret or proprietary information of others, including any
of the Executive's former employers.
(b) Competitive Activity; Nonsolicitation. In the event that, during
the Employment Period, Executive shall voluntarily terminate his employment
hereunder, be terminated by the Company without Cause, or terminate his
employment hereunder for Good Reason, then the Executive shall not, directly or
indirectly (whether as owner, partner, consultant, employee or otherwise), at
any time during the six months following termination of his employment with the
Company or any affiliate for any reason, engage in or contribute his knowledge
to any work or activity that involves a product, process, apparatus, service or
development which is then competitive with or similar to a product, process,
apparatus, service or development on which he worked or with respect to which he
had access to Confidential Information while employed by the Company or an
affiliate at any time during the period of five years immediately prior to his
Date of Termination ("Competitive Work"). However, the Executive shall be
permitted to engage in such proposed work or activity, and the Company shall
furnish him a written consent to that effect signed by an officer of the
Company, if the Executive shall have furnished to the Company clear and
convincing written evidence, including assurances from the Executive and his new
employer, that the fulfillment of his duties in such proposed work or activity
would not likely cause him to disclose, base judgment upon, or use any
Confidential Information. In addition, during his employment by the Company or
an affiliate and for a period of six months thereafter, the Executive shall not,
directly or indirectly, (i) induce or attempt to induce a salaried employee of
the Company or any of its affiliates to accept employment or affiliation
involving Competitive Work with another firm or corporation of which the
Executive is an employee, owner, partner or consultant, or (ii) induce or
attempt to induce any customer, supplier, licensee or other person having a
business relationship with the Company to cease doing business with the Company
or interfere materially with the relationship between the Company and any such
customer, supplier, licensee or other person having a business relationship with
the Company.
(c) Injunctive Relief. Executive agrees that the restrictions
imposed upon him by this Section 7 are fair and reasonable considering the
nature of the Company's business and are reasonably required for the protection
of the Company. Executive also acknowledges that a breach of any of the
provisions of this Section 7 may result in continuing and irreparable damages to
the Company for which there may be no adequate remedy at law, and that the
Company, in addition to all other relief available to it, shall be entitled to
the issuance of a temporary restraining order, preliminary injunction and
permanent injunction restraining the
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Executive from committing or continuing to commit any breach of the provisions
of this Section 7.
(d) Blue Pencil. If, at any time, the provisions of this Section 7
shall be determined to be invalid or unenforceable under any applicable law, by
reason of being vague or unreasonable as to area, duration or scope of activity,
this Agreement shall be considered divisible and shall become and be immediately
amended to only such area, duration and scope of activity as shall be determined
to be reasonable and enforceable by the court or other body having jurisdiction
over the matter and the Executive and the Company agree that this Agreement as
amended shall be valid and binding as though any invalid or unenforceable
provision had not been included herein.
8. Successors.
(a) This Agreement is personal to the Executive and without the
prior written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
9. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without reference to principles of
conflict of laws. The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect. This Agreement may not be amended or
modified otherwise than by a written agreement executed by the parties hereto or
their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
Xxxxxx X. Xxxxx
[address]
If to the Company:
Xxxx X. Xxxxxxxx
Lead Director of the Board
Solutia Inc.
X.X. Xxx 00000
Xx. Xxxxx, XX 00000-0000
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With a copy to:
Xxxxxxxx X. Xxxxx, Esq.
Senior Vice President, General Counsel and Corporate Secretary
Solutia Inc.
X.X. Xxx 00000
Xx. Xxxxx, XX 00000-0000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any one or more provisions
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder shall not be deemed to be
a waiver of such provision or right or any other provision or right of this
Agreement.
(f) This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
agreements, oral and written, between the parties hereto with respect to the
subject matter hereof. This Agreement also supersedes, without limitation, the
Employment Agreement dated as of February 26, 2003 between the Company and the
Executive (the "Change in Control Agreement"), the Agreement dated as of
December, 2003 between the Company and the Executive (the "Retention
Agreement"), the Amended and Restated Agreement between the Company and the
Executive originally dated July 19, 2004 and amended and restated as of April
21, 2005 (the "Amended Agreement") and any other prior employment agreement
between the Company and the Executive and the Executive waives all rights with
respect to such agreements, including, without limitation, any claims for
damages related to such agreements; provided, that this Agreement shall have no
effect on the Executive's rights under any plan, program, policy or practice
provided by the Company or any of its affiliated companies except that the
benefits and other payments provided for pursuant to Section 5 hereof shall be
in lieu of any severance or separation pay or benefits to which the Executive
might otherwise be entitled under any plan, program, policy or arrangement of
the Company and its affiliates. In consideration of the promises set forth in
the Agreement, and of the mutual releases set forth in this paragraph, each
party hereto relinquishes all rights, and releases the other from all promises,
liabilities and commitments that may have existed under the Change in Control
Agreement, the Retention Agreement, and any other employment agreements, which
shall be null and void and of no further effect.
12
(g) No amounts shall be payable pursuant to Section 5(a)(i)(B),
5(a)(i)(C), 5(a)(i)(D) or 5(b) of this Agreement unless and until the Executive
shall have executed and delivered a waiver and release of claims against the
Company substantially in the form attached hereto as Exhibit A.
(h) Except as otherwise provided by Section 7(c), in the event of
any dispute, controversy or claim arising out of or relating to this Agreement
or Executive's employment or termination thereof, the parties hereby agree to
settle such dispute, controversy or claim in a binding arbitration by a single
arbitrator in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, which arbitration shall be conducted in St. Louis,
Missouri. The parties agree that the arbitral award shall be final and
non-appealable and, except as otherwise provided by Section 7(c), shall be the
sole and exclusive remedy between the parties hereunder. The parties agree that
judgment on the arbitral award may be entered in any court having competent
jurisdiction over the parties or their assets.
10. Code Section 409A Compliance. The arrangements under this Agreement
are not intended to create "deferred compensation" within the meaning of Section
409A of the Internal Revenue Code of 1986, as amended (the "Code") and any
rulings or regulations thereunder, including IRS Notice 2005-1, and all
provisions of this Agreement shall be interpreted consistently with such intent.
In the event that any amounts payable under this Agreement that would otherwise
be considered deferred compensation pursuant to Section 409A of the Code (or any
applicable regulations or guidance promulgated by the Secretary of the Treasury
in connection therewith) are paid within six (6) months following the date of
termination of employment, such amounts shall be paid at the earlier of the time
otherwise provided under this Agreement or the time that will prevent such
amounts from being considered deferred compensation under Section 409A of the
Code. Solely to the extent, if any, that this Agreement constitutes the grant of
an additional benefit under the Agreement that consists solely of a deferral of
additional compensation not otherwise provided under the Agreement as of October
3, 2004, it is intended that any such additional benefit be treated as a
material modification of the Agreement only as to such additional deferral of
compensation as provided in Q&A-18 of IRS Notice 2005-1. Further, in the event
that (a) the Company determines that there is an ambiguity with respect to any
provision of this Agreement that could cause such provision to result in an
obligation to pay deferred compensation subject to Section 409A of the Code,
such ambiguity shall be interpreted and resolved in the manner that the Company
deems necessary to either avoid the obligation to pay deferred compensation
within the meaning of Section 409A of the Code or to comply with timing and
payment provisions of Section 409A of the Code, and (b) the Company determines,
in good faith, that any amendment to this Agreement is necessary or appropriate
in order to comply with timing and payment provisions of Section 409A of the
Code or to avoid the obligation to pay deferred compensation within the meaning
of Section 409A of the Code, the Company shall have the right to make such
amendment, on a prospective or retroactive basis, in its sole discretion.
11. Code Section 4999. If, as a result of payments provided for under or
pursuant to this Agreement together with all other payments in the nature of
compensation provided to or for the benefit of Executive, any state, local or
federal taxing authority imposes any taxes on Executive that would not be
imposed on such payments but for the occurrence of a change of control,
including any excise tax under Section 4999 of the Code, then, in addition to
any other
13
benefits provided under or pursuant to this Agreement or otherwise, the Company
(including any successor to or assignee of the Company) shall pay to Executive
at the time any such payments are made under or pursuant to this Agreement or
the other agreements, an amount equal to the amount of any such taxes imposed or
to be imposed on Executive (the amount of any such payment, the "Tax
Reimbursement"). In addition, the Company (including any successor to or
assignee of the Company) shall "gross up" such Tax Reimbursement by paying to
Executive at the same time an additional amount equal to the aggregate amount of
any additional taxes (whether income taxes, excise taxes, special taxes,
employment taxes or otherwise) that are or will be payable by Executive as a
result of the Tax Reimbursement being paid or payable to Executive and/or as a
result of the additional amounts paid or payable to Executive pursuant to this
sentence, such that after payment of such additional taxes Executive shall have
been paid on a net after-tax basis an amount equal to the Tax Reimbursement. The
amount of any Tax Reimbursement and of any such gross-up amounts shall be
determined by the Company's independent auditing firm, whose determination,
absent manifest error, shall be treated as conclusive and binding absent a
binding determination by a governmental taxing authority that a greater amount
of taxes is payable by Executive.
12. Counterparts. This Agreement may be executed in separate counterparts,
each of which is deemed to be an original and all of which taken together
constitute one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other party in original or facsimile form.
[signature page to follow]
14
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
-------------------------------
Xxxxxx X. Xxxxx
SOLUTIA INC.
By:
----------------------------
Xxxxxxxx X. Xxxxx
Senior Vice President, General Counsel and
Corporate Secretary
15
Exhibit A
WAIVER AND RELEASE
Reference is made to that Amended and Restated Agreement (the
"Agreement"), dated as of April 11, 2007, by and between Solutia, Inc., a
Delaware Corporation (the "Company"), and Xxxxxx X. Xxxxx (the "Executive").
This Waiver and Release (this "Waiver") is made as of the __ day of
____________, 200_, by the Executive pursuant to Section 9(g) of the Agreement.
Release and Waiver of Claims Against the Company
(a) The Executive, on behalf of himself, his agents, heirs, successors,
assigns, executors and administrators, in consideration for the payments and
other consideration provided for under the Agreement, hereby forever releases
and discharges the Company and its successors, their affiliated entities, and
their past and present directors, employees, agents, attorneys, accountants,
representatives, plan fiduciaries, successors and assigns from any and all known
and unknown causes of action, actions, judgments, liens, indebtedness, damages,
losses, claims, liabilities, and demands of whatsoever kind and character in any
manner whatsoever arising on or prior to the date of this Waiver, including but
not limited to (i) any claim for breach of contract, breach of implied covenant,
breach of oral or written promise, wrongful termination, intentional infliction
of emotional distress, defamation, interference with contract relations or
prospective economic advantage, negligence, misrepresentation or employment
discrimination, and including without limitation alleged violations of Title VII
of the Civil Rights Act of 1964, as amended, prohibiting discrimination based on
race, color, religion, sex or national origin; the Family and Medical Leave Act;
the Americans With Disabilities Act; the Age Discrimination in Employment Act;
other federal, state and local laws, ordinances and regulations; and any
unemployment or workers' compensation law, excepting only those obligations of
the Company expressly recited in the Agreement or this Waiver and any claims to
benefits under the Company's employee benefit plans as defined exclusively in
written plan documents; (ii) any and all liability that was or may have been
alleged against or imputed to the Company by the Executive or by anyone acting
on his behalf; (iii) all claims for wages, monetary or equitable relief,
employment or reemployment with the Company in any position, and any punitive,
compensatory or liquidated damages; and (iv) all rights to and claims for
attorneys' fees and costs except as otherwise provided herein or in the
Agreement.
(b) The Executive shall not file or cause to be filed any action, suit,
claim, charge or proceeding with any federal, state or local court or agency
relating to any claim within the scope of this Waiver. In the event there is
presently pending any action, suit, claim, charge or proceeding within the scope
of this Waiver, or if such a proceeding is commenced in the future, the
Executive shall promptly withdraw it, with prejudice, to the extent he has the
power to do so. The Executive represents and warrants that he has not assigned
any claim released herein, or authorized any other person to assert any claim on
his behalf.
(c) In the event any action, suit, claim, charge or proceeding within the
scope of this Waiver is brought by any government agency, putative class
representative or other third party to vindicate any alleged rights of the
Executive, (i) the Executive shall, except to the extent
required or compelled by law, legal process or subpoena, refrain from
participating, testifying or producing documents therein, and (ii) all damages,
inclusive of attorneys' fees, if any, required to be paid to the Executive by
the Company as a consequence of such action, suit, claim, charge or proceeding
shall be repaid to the Company by the Executive within ten (10) days of his
receipt thereof.
(d) In the event of a breach of this Waiver by the Executive, the
Company's obligations pursuant to the Agreement shall cease as of the date of
such breach. Furthermore, the Executive understands that his breach of the
provisions of this Waiver will cause monetary damages to the Company. Thus,
should the Executive breach the provisions of this Waiver, he shall be required
to pay the Company, as liquidated damages, the amount of the consideration paid
by the Company to the Executive pursuant to the Agreement plus all costs and
expenses, including all attorneys' fees and expenses, that the Company incurs in
enforcing this Waiver. The Executive agrees that the foregoing amount of
liquidated damages is reasonable and necessary, and does not constitute a
penalty.
Voluntary Execution of Waiver.
BY HIS SIGNATURE BELOW, THE EXECUTIVE ACKNOWLEDGES THAT:
(A) I HAVE RECEIVED A COPY OF THIS WAIVER AND WAS OFFERED A PERIOD OF
TWENTY-ONE (21) DAYS TO REVIEW AND CONSIDER IT;
(B) IF I SIGN THIS WAIVER PRIOR TO THE EXPIRATION OF TWENTY-ONE (21) DAYS,
I KNOWINGLY AND VOLUNTARILY WAIVE AND GIVE UP THIS RIGHT OF REVIEW;
(C) I HAVE THE RIGHT TO REVOKE THIS WAIVER FOR A PERIOD OF SEVEN (7) DAYS
AFTER I SIGN IT BY MAILING OR DELIVERING A WRITTEN NOTICE OF REVOCATION TO THE
COMPANY'S CHAIRMAN OF THE BOARD OR GENERAL COUNSEL, NO LATER THAN THE CLOSE OF
BUSINESS ON THE SEVENTH DAY AFTER THE DAY ON WHICH I SIGNED THIS WAIVER;
(D) THIS WAIVER SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE SEVEN
DAY REVOCATION PERIOD HAS EXPIRED WITHOUT THE WAIVER HAVING BEEN REVOKED;
(E) THIS WAIVER WILL BE FINAL AND BINDING AFTER THE EXPIRATION OF THE
REVOCATION PERIOD REFERRED TO IN (C). I AGREE NOT TO CHALLENGE ITS
ENFORCEABILITY;
(F) I AM AWARE OF MY RIGHT TO CONSULT AN ATTORNEY, HAVE BEEN ADVISED IN
WRITING TO CONSULT WITH AN ATTORNEY, AND HAVE HAD THE OPPORTUNITY TO CONSULT
WITH AN ATTORNEY, IF DESIRED, PRIOR TO SIGNING THIS WAIVER;
2
(G) NO PROMISE OR INDUCEMENT FOR THIS WAIVER HAS BEEN MADE EXCEPT AS SET
FORTH IN THIS WAIVER;
(H) I AM LEGALLY COMPETENT TO EXECUTE THIS WAIVER AND ACCEPT FULL
RESPONSIBILITY FOR IT; AND
(I) I HAVE CAREFULLY READ THIS WAIVER, ACKNOWLEDGE THAT I HAVE NOT RELIED
ON ANY REPRESENTATION OR STATEMENT, WRITTEN OR ORAL, NOT SET FORTH IN THIS
DOCUMENT OR THE AGREEMENT, AND WARRANT AND REPRESENT THAT I AM SIGNING THIS
WAIVER KNOWINGLY AND VOLUNTARILY.
Intending to be legally bound, I have signed this Waiver as of the date
first set forth above.
-------------------------------
Xxxxxx X. Xxxxx
3
ATTACHMENT I
Solutia Inc. Emergence Incentive Bonus Program
Participation
Participation in the bonus pool established under the Solutia Inc.
Emergence Incentive Bonus Program shall be extended to those key senior
executives of the Company and in such percentages as shall be determined by the
Board of Directors.
Performance Measures
The aggregate dollar value of the bonus pool shall be calculated by
reference to three metrics as follows:
a. 25% allocation for achieving target EBITDA* for the 12-month period
ending on the six-month anniversary of the day at which both (x) the
United States Bankruptcy Court for the Southern District of New York shall
have confirmed a plan of reorganization of the Company under Chapter 11 of
the United States Bankruptcy Code, and (y) such confirmation shall have
become non-appealable (the "Emergence Date");
b. 25% allocation for achieving target Enterprise Value based on market
value on six-month anniversary of the Emergence Date;** and
c. 50% allocation for achieving target Unsecured Creditor Recoveries based
on trading prices as of six-month anniversary of the Emergence Date.***
The portion of the bonus pool allocated to each metric can exceed 100%,
but the aggregate pool cannot exceed $7.5 million. Thus, up to $2,343,750 can be
earned for the pool based on EBITDA, up to $2,250,000 based on enterprise value,
and up to $5,625,000 based on unsecured creditor recovery, provided the
aggregate does not exceed $7.5 million.
The EBITDA, Enterprise Value and Creditor Recovery Metrics are as follows:
EBITDA
Performance Relative to Plan
----------------------------------------------------------------------------------------------------------
%Earned 70% 75% 80% 85% 90% 95% 100% 105% 110% 115% 120%
----------------------------------------------------------------------------------------------------------
% of $1.875M Pool (25% of $7.5M) 0% 0% 0% 0% 0% 20% 30% 55% 75% 100% 125%
----------------------------------------------------------------------------------------------------------
ENTERPRISE VALUE
Enterprise Value (in billions)
----------------------------------------------------------------------------------------------------------------------
% Earned $1.20 $1.30 $1.40 $1.50 $1.60 $1.70 $1.80 $1.90 $2.00 $2.10 $2.20 $2.30 $2.40 $2.50
----------------------------------------------------------------------------------------------------------------------
% of $1.875M Pool
(25% of $7.5M) 0% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% 110% 120%
----------------------------------------------------------------------------------------------------------------------
UNSECURED CREDITOR RECOVERY
Unsecured Creditor Recovery (%)
----------------------------------------------------------------------------------------------------------------------
% Earned 30% 35% 40% 45% 50% 55% 60% 65% 70% 75% 80% 85% 90% 95% 100%
----------------------------------------------------------------------------------------------------------------------
% of $3.75 M UCR
Pool (50% of $7.5M) 0% 0% 0% 0% 20% 30% 40% 50% 60% 70% 80% 95% 110% 125% 150%
----------------------------------------------------------------------------------------------------------------------
The percentage of the bonus pool attributable to the EBITDA, enterprise
value or unsecured creditor recovery metric, as applicable, when performance
falls between data points in the tables above, shall be determined by using
straight line interpolation.
Payments Under Program
The bonus pool shall be distributed as soon as practicable after the
six-month anniversary of the Emergence Date. The Executive shall be entitled to
his Emergence Bonus even if his employment is terminated (voluntarily or
involuntarily) on or after the Emergence Date, or if Executive is terminated
other than for Cause or the Executive shall terminate employment for Good Reason
(as those terms are defined in his employment agreement) prior to the Emergence
Date.
The Board of Directors, in its discretion, may make such payment by
delivering to the participant common stock of the Company with a fair market
value equal to the bonus pool payment due to the participant, provided the
Company's common stock is actively traded on a recognized securities exchange.
If payment is made by delivering common stock, the participant shall have the
right to satisfy any withholding tax obligation by having the Company withhold
shares of stock with a fair market value equal to the applicable withholding
taxes, and the stock shall be valued both for purposes of withholding and for
determining the number of shares to be delivered to the participant, at the
average common stock trading price for the 20 trading days ending with the day
preceding the delivery of stock to the participant. No portion of the bonus pool
shall be payable to a participant whose employment by the Company was terminated
for Cause.
-------------
* EBITDA metric should be measured on a trailing-twelve months basis as of
six-months post-emergence relative to the Company's business plan presented
to the Committee on April 14, 2004.
--------------------------------------------------------------------------------
Pharmaceutical Services should be carved out for purposes of calculating
the EBITDA Metric bonus
> A sale of Pharmaceutical Services would require interim period
adjustments to EBITDA and the benefits of a sale should be picked up in
the Unsecured Creditor Recovery metric.
Joint venture income should be included.
Budgeted restructuring costs that are typically accounted for below the
operating income line should be included.
Assets sale adjustment mechanism needs to be established.
** Enterprise value should be calculated 6 months post-emergence as follows:
20 day average common stock trading price multiplied by the most recent
common shares outstanding
Plus: 20-day average trading price of preferred stock multiplied by the
amount of preferred shares outstanding, if any
Plus: Market value of debt securities
Plus: Net proceeds from asset sales, if used to pay down debt.
*** The unsecured creditor recovery metric should be based on the 20-day
average trading value of securities distributed to all unsecured creditors
at 6-months post-emergence divided by the total amount of allowed unsecured
claims (including Monsanto claims, if any) in the Company's confirmed Plan
of Reorganization.
