Exhibit
10.1
EXECUTIVE
SEVERANCE BENEFITS PLAN
July
2010
Table of
Contents
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i
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Executive Severance
Benefits Plan Overview
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1
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Who is
Eligible
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1
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Covered Severance
Events
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1
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How the Severance
Benefits Plan Works
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2
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Severance
Payment
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2
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Continuation of
Health Benefits
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3
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Conditions
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3
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Employees Rehired
After Receiving Benefits
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3
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When Coverage
Ends
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3
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Claims and Appeals
Process
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3
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Celanese Americas
Benefits Committee
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4
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Duration of the
Plan, Ability to Amend or Terminate the Plan
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5
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Appendix A -
Glossary
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6
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Executive Severance
Benefits Plan Overview
The
Executive Severance Benefits Plan provides a severance payment and continuation
of health benefits to certain eligible executive employees of Celanese Americas
LLC and its participating affiliated companies
(“Celanese”). Ineligible employees shall not receive severance
benefits.
Celanese
can, in certain circumstances and notwithstanding the provisions of this Plan,
in its sole discretion, provide different or enhanced severance benefits to
certain employees specified on an individual or group basis. However,
the granting of such benefits shall not mean that any other individual employee
or group of employees is entitled to such benefits. You are not
eligible to participate in this Plan if you are eligible to receive severance
benefits under any other plan or arrangement sponsored by Celanese except to the
extent specifically set forth in such other plan or arrangement.
Certain
terms used in this Plan are defined in the Glossary in Appendix A.
Who
is Eligible
All
Salary Level 1-3 executive employees of Celanese, other than the Chief Executive
Officer, are eligible to participate in this Plan.
You are
not eligible to receive severance benefits under this Plan unless you are
classified as an “employee” on the payroll records of Celanese, regardless of
whether it is later determined that you are, or were, an “employee” of
Celanese.
Covered
Severance Events
If you
are an eligible employee, you are entitled to Severance Benefits if you have a
Covered Severance Event. You have a Covered Severance Event if you
are involuntarily terminated from active employment without Cause or you resign
from active employment with Good Reason.
For
purposes of the Plan, your termination is for Cause if you are terminated
because of:
(i)
your willful failure to
perform your duties to Celanese (other than as a result of total or partial
incapacity due to physical or mental illness) for a period of 30 days
following written notice by Celanese to you of such failure;
(ii) your
conviction of, or a plea of nolo contendere to (x) a felony under the laws
of the United States or any state thereof or any similar criminal act in a
jurisdiction outside the United States or (y) a crime involving moral
turpitude;
(iii) your
willful malfeasance or willful misconduct which is demonstrably injurious to
Celanese;
(iv) your
material violation of Celanese’s code of conduct;
(v) your
material violation of Celanese’s policies concerning harassment or
discrimination;
(vi) your
conduct that causes material harm to the business reputation of Celanese or its
affiliates; or
(vii) your
breach of the provisions of any confidentiality, noncompetition or
nonsolicitation obligation to which you are subject.
For purposes of the Plan, your
resignation is for Good Reason if any of the following occur without your
consent:
(i) a
material diminution in your base salary or annual bonus opportunity, other than
a diminution generally applicable to a class of individuals that includes
you;
(ii) a
material diminution in your authority, duties, or responsibilities (including
status, offices, titles and reporting requirements);
(iii) a
material change in the geographic location at which you must perform your
duties;
(iv)
failure of Celanese to pay compensation or benefits when due; or
(v) any
other action or inaction that constitutes a material breach by Celanese of this
Plan.
The
conditions described above will not constitute “Good Reason” unless (A) you
provide written notice to Celanese of the existence of the condition described
above within ninety (90) days after the initial existence of such condition, (B)
the Company fails to remedy the condition within a period of thirty (30) days
after receipt of the notice, and (C) following receipt of your notice, the
Company notifies you in writing that it has determined that you have Good
Reason. If the Company fails to remedy the condition within the
period referred to in the preceding sentence, you may terminate your employment
with the Company for “Good Reason” within the thirty (30) day
period following your receipt of the Company’s notice that it has
determined that you have Good Reason to terminate your employment.
Enrollment
is automatic.
Eligible
executive employees who are involuntarily terminated for any other reason
(e.g. death, disability, retirement, termination for Cause), or who
voluntarily terminate or retire without Good Reason, are not eligible to receive
severance benefits under this Plan.
How
the Severance Benefits Plan Works
Eligible
executive employees who have had a Covered Severance Event are entitled to
receive (i) a severance payment, and (ii) continuation of health care benefits,
all as further described below.
This Plan
does not alter the terms of any grant of equity compensation to
you. Your rights with respect to any equity compensation grant are
governed by the agreement(s) that establish the terms and conditions of your
grant.
Severance
Payment
Eligible
executive employees who have a Covered Severance Event will receive a severance
payment upon the executive’s termination of employment with Celanese and its
affiliates. (For this purpose, the termination of
employment must constitute a “Separation from Service” as defined in Section
409A of the Internal Revenue Code.)
The
Severance Payment is an amount equal to the executive’s base annual salary in
effect on the date of termination plus an amount equal to the executive’s target
bonus for the year (with a 1.0 personal modifier). The Severance Payment will be
made as soon as practicable following the eligible
executive’s Separation from Service, but in no event later than
December 31 of the year in which such Separation from Service occurs or, if
later, the 15
th
day
of the third month following such Separation from Service.
In
addition, the executive will be entitled to a pro rata bonus payment for the
year of termination (a “Supplemental Payment”). The Supplemental
Payment is an amount equal to the executive’s target bonus payment for the year
of termination, adjusted for actual performance of the Company for the year of
termination (with a 1.0 personal modifier), multiplied by a fraction, the
numerator of which is the number of days in the year of the executive’s
termination up to and including the date of the executive’s termination and the
denominator of which is 365 (or, 366, as applicable). The Supplemental Payment
shall be paid at the same time annual bonuses are paid to other executive
employees who do not terminate employment during the year (instead of being paid
at the same time as the Severance Payment) but in no event later than the
15
th
day
of the third month of the year following such Separation from
Service.
For
purposes of Section 409A of the Internal Revenue Code, the Severance Payment and
the Supplemental Payment are intended to be a separate “payment” within the
meaning of Treasury Regulation Section 1.409A-2(b)(2) and to be exempt from
Section 409A of the Internal Revenue Code pursuant to Treasury Regulation
Section 1.409A-1(b)(4).
Any
amounts that the eligible executive owes to Celanese will be deducted from the
eligible executive’s severance payment. As an additional condition to
receiving the severance payment, the Plan Administrator may require the eligible
executive to execute a written agreement that authorizes Celanese to deduct any
amounts the eligible executive owes to Celanese prior to the payment of the
severance payment under the Plan.
Continuation
of Health Benefits
Eligible
executives who have a Covered Severance Event will be entitled to elect, under
COBRA, to continue to participate in the Celanese Americas Medical Plan for a
period of 18 months following the month of termination.
If the
eligible executive elects to continue coverage under the Medical Plan under
COBRA, no COBRA premiums will be charged for the first 12 months of COBRA
coverage.
For the
next 6 months (i.e., for the 13
th
through 18
th
month following termination), the eligible executive must elect to continue
coverage under COBRA and must pay the COBRA premium in order to continue to
participate in the Medical Plan.
Health
coverage will terminate when the eligible executive becomes eligible to
participate in any other employer-sponsored health plan. You must
notify Celanese when you become eligible for any other employer-provided health
care benefits.
As a
condition for receiving severance benefits under this Plan, you must (1) return
all property of Celanese; (2) hold confidential any and all information
concerning Celanese; (3) cooperate fully with Celanese; (4) execute and deliver
such forms as required by Celanese; and (5) execute and deliver to Celanese a
general claims release, restrictive covenants and cooperation agreement in the
form provided to you by Celanese. If you fail to fully comply with
any of the obligations described in this paragraph, your benefits may be
discontinued.
Employees
Rehired After Receiving Benefits
If you
are a former employee and you are applying for rehire consideration, you will be
considered with all other external candidates and have no guaranteed entitlement
to a prior job classification, level, or rate of pay. The position
will reflect Celanese’s current evaluation of the position in the current
organization structure.
If you
are a former employee who is rehired after receiving benefits, you will not
receive recognition of prior service in the determination of subsequent
benefits, except to the extent provided by law. Calculation of
subsequent benefits will begin as of the date you are rehired as a Celanese
employee. Any prior service previously credited will not be included
for the purpose of the calculation of benefits entitlement after you are
rehired.
All
issues regarding the treatment of any service time since separation from
employment are to be resolved by the Plan Administrator before an individual
with prior service is rehired.
When
Coverage Ends
Your
coverage under this Plan ends once you terminate from Celanese or when you are
no longer an eligible employee.
Claims
and Appeals Process
If you
believe that you are entitled to benefits under the Plan, you must file a claim
for benefits. A claim for benefits must be made no later than one
year following the date of your termination of employment with
Celanese. If you do not file a claim for benefits within one year of
the date of your termination of employment with Celanese, you will not be
entitled to any benefits under the Plan.
A claim
for benefits is submitted to the Plan Administrator. The Plan
Administrator has the sole discretionary authority to approve or deny each
claim. In the event the Plan Administrator denies, in whole or in
part, an initial claim for benefits by a participant or his beneficiary, the
Plan Administrator will furnish notice of the adverse determination to
you.
The
notice will be forwarded to you within 90 days of receipt of the claim by the
Plan Administrator. However, in special circumstances, the Plan
Administrator may extend the response period for up to an additional 90 days,
and must notify you in writing of the extension, and will specify the reasons
for the extension. If for any reason you do not receive a response
from the Plan Administrator within the time prescribed, the claim will be deemed
denied.
Within 60
days of receipt of a notice of an adverse determination, you or your duly
authorized representative may petition the Plan Administrator in writing for a
full and fair review of the adverse determination (see address below for
information on how to contact the Plan Administrator). You or your
duly authorized representative will have the opportunity to submit comments in
writing, documents, records, and other relevant information to the Plan
Administrator. You will also have the right to be furnished, free of
charge and upon request, reasonable access to, and copies of, all documents,
records and other relevant information. Relevant information includes
any information that was submitted, considered or generated in the course of the
decision regardless of whether such information was relied upon in making the
benefit determination. You may also request any information
demonstrating that, where appropriate, the Plan is acting consistently with
respect to other participants.
The Plan
Administrator will review the denial and will take into account all documents,
records, and other information submitted by you regardless of whether such
information was submitted or considered in the initial
determination. The Plan Administrator will communicate its decision
and provide an explanation to you in writing within 60 days of receipt of the
petition. However, in special circumstances, the Plan Administrator
may extend the response period for up to an additional 60 days, in which event
it will notify you in writing prior to the commencement of the extension and
specify the reasons for the extension. If for any reason, the written
decision on review is not furnished within the time prescribed, the claim will
be deemed denied on review.
The
written notice of decision by the Plan Administrator will set
forth:
}
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The
specific reasons for the adverse
determination;
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}
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A
specific reference to the pertinent Plan provisions on which the adverse
determination is based;
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}
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A
description of any additional information necessary for you to perfect the
claim and an explanation of why such information is
necessary. In the case of a notification of an appealed claim,
the notice will also include a statement that you are entitled to receive
reasonable access to and copies of all documents, records, and other
relevant information with respect to the claim;
and
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}
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A
description of the Plan’s review procedures (or, in the case of a
notification of an appealed claim, a description of any voluntary appeal
procedures) and the time limits applicable to such procedures, including a
statement of the claimant’s right to bring a civil action under section
502 of ERISA following an adverse decision by the Plan
Administrator.
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Celanese
Americas Benefits Committee
The Plan
Administrator is the Celanese Americas Benefits Committee. The
Benefits Committee has general responsibility and sole discretionary authority
for administering the Plan and reviewing claims for benefits and appeals or
denied claims. Any determination by the Benefits Committee is final
and conclusive and will not be overturned unless it is deemed to be arbitrary
and capricious. The Celanese Americas Benefits Committee can be
contacted at:
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Celanese
Americas Benefits Committee
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Duration
of the Plan, Ability to Amend or Terminate the Plan
The
initial term of the Plan expires on December 31, 2011. However, the
Plan will automatically renew for successive one-year periods if Celanese does
not, by action of its Board of Directors at least 90 days prior to the end of
each such year (beginning with the year ending December 31, 2011), take action
to terminate the Plan.
Celanese
retains the right to amend or terminate the Medical Plan and/or the Retiree
Medical Plan at any time, whether before or after a Covered Severance
Event.
Glossary
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Celanese -
Celanese
Americas LLC and its participating affiliated companies
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Continuation of Health
Benefits
- See page 3 under “Continuation of Health
Benefits”
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Covered Severance Event
- See page 1 under “Covered Severance Events”
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ERISA
- Employee
Retirement Income Security Act of 1974, as amended
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Good Reason
- See page 1
under “Covered Severance Events”
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Medical Plan
- The
Celanese Americas Medical Plan
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Plan
- This Celanese
Americas Executive Severance Benefits Plan
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Plan Administrator
-
Celanese Americas Benefits Committee
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Plan Sponsor
-
Celanese Americas LLC
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Severance Payment
-
See Page 3 under “Severance Payment”
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Severance
Benefits
- The benefits provided under this Plan, including a
Severance Payment and Continuation of Health
Benefits
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