DELAWARE | 001-32410 | 98-0420726 | ||
(State or other jurisdiction | (Commission File | (IRS Employer | ||
of incorporation) | Number) | Identification No.) |
o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Separation Payment : The Company will pay Mr. Gallagher an amount equal to his current annual base salary plus target bonus, for a total payment of $1,215,000, less any lawful deductions, according to the payment schedule provided in the Separation Agreement. | ||
| 2008 and 2009 Bonus Payments : Mr. Gallagher will be paid a bonus of $360,194 for his service to the Company in 2008 based on Company and business unit results. In addition, Mr. Gallagher will be credited with at least 3 months of service when determining his prorated bonus payout for 2009, which will also be determined based on Company and business unit results. Mr. Gallaghers 2009 bonus payout, if any, will be paid during the 2010 calendar year, but in no event later than March 15, 2010. | ||
| Vesting and Exercise of Equity Awards : On March 31, 2009, 58,400 unvested Time Options, and 109,500 unvested Performance Options will vest. Pursuant to the terms of Mr. Gallaghers Nonqualified Stock Option Agreement dated July 25, 2007, Mr. Gallaghers 12,000 stock options that vested on January 1, 2009, shall be exercisable through March 31, 2010. All remaining unvested stock options issued pursuant to the Nonqualified Stock Option Agreement dated July 25, 2007 shall be canceled on March 31, 2009, with no additional consideration. | ||
| Deferred Compensation Plan Payment Vesting : In accordance with the terms of the Deferral Agreement dated August 31, 2005, between Mr. Gallagher and the Company (executed in connection with the Celanese Corporation 2004 Deferred Compensation Plan) the Company has agreed that all Performance Targets were achieved for the 2008 calendar year and that (i) Mr. Gallaghers Performance Account, in the amount of $1,822,000, vested on December 31, 2008, and will be paid by the Company no later than March 13, 2009, and (ii) Mr. Gallaghers Tier II Time Account, in the amount of $1,180,000, will vest on March 31, 2009, and will be paid by the Company on or before April 15, 2009. |
Exhibit | Description | |
10.1
|
Agreement and General Release dated March 5, 2009, between the Company and John J. Gallagher, III, his heirs, executors, administrators successors and assigns. |
CELANESE CORPORATION
By /s/ Robert L. Villaseñor
Name:
Robert L. Villaseñor
Title:
Associate General Counsel and Assistant
Secretary
1. | Last Day of Employment (Separation Date) . The Employees last day of employment with the Company will be March 31, 2009 (the Separation Date). |
2. | Consideration . In consideration for signing this Agreement and General Release and compliance with the promises made herein, Employer and Employee agree: |
- 1 -
- 2 -
- 3 -
3. | No Consideration Absent Execution of this Agreement . Employee understands and agrees that he would not receive certain of the monies and/or benefits specified in Paragraph 2 above, unless the Employee signs this Agreement and General Release on the signature page without having revoked this Agreement and General Release pursuant to Paragraph 15 below and the fulfillment of the promises contained herein. |
4. | General Release of Claims . 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., the Peoples Republic of China (PRC), U.K. 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, relating to his employment with Employer including, but not limited to, any alleged violation of: |
| Title VII of the Civil Rights Act of 1964, as amended; | ||
| The Civil Rights Act of 1991; | ||
| Sections 1981 through 1988 of Title 42 of the United States Code, as amended; | ||
| The Employee Retirement Income Security Act of 1974, as amended; | ||
| The Immigration Reform and Control Act, as amended; | ||
| The Americans with Disabilities Act of 1990, as amended; | ||
| The Age Discrimination in Employment Act of 1967, as amended; | ||
| The Workers Adjustment and Retraining Notification Act, as amended; | ||
| The Occupational Safety and Health Act, as amended; | ||
| The Sarbanes-Oxley Act of 2002; | ||
| The Texas Civil Rights Act, as amended; | ||
| The Texas Minimum Wage Law, as amended; | ||
| Equal Pay Law for Texas, as amended; | ||
| 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 PRC, Federal Republic of Germany and the United Kingdom. | ||
| Any public policy, contract, tort, or common law. | ||
| The employment, labor and benefits laws and regulations in all countries in addition to the U.S. including but not limited to the U.K. and Germany. | ||
| Any claim for costs, fees, or other expenses including attorneys fees incurred in these matters; |
- 4 -
5. | Affirmations . 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, sue 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. | |
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. |
6. | Confidentiality . Except as may be required by law, 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. | |
Employee will continue to act in accordance with the terms and conditions set forth in Section 9 of his Amended and Restated Employment Agreement dated July 26, 2007 referring to confidentiality. |
7. | Non-competition/Non-solicitation/Non-hire. Employee acknowledges and recognizes the highly competitive nature of the business of the Employer. Employee will continue to act in accordance with the terms and conditions set forth in Section 8 of his Amended and Restated Employment Agreement dated July 26, 2007 referring to non-competition. |
8. | 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. |
9. | Non-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. |
10. | Neutral Reference. If contacted by another organization, the Employer will only provide dates of employment and that the Employee voluntarily resigned from the Company. |
11. | Non - Disparagement. Except as may required by law or in a truthful response to disparaging comments or communications by Employer, its employees or its directors, Employee agrees not to disparage, or make disparaging remarks or send any disparaging communications concerning, the |
- 5 -
Employer, its reputation, its business, and/or its directors, officers, managers. Likewise the Employers senior management agrees not to disparage, or make any disparaging remark or send any disparaging communication concerning Employee, his reputation and/or his business. | ||
12. | Future Cooperation after Separation Date. After separation, Employer may make reasonable requests of Employee for assistance, and 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 Employee within 30 days of remittance by Employee to the Company of such time and expenses incurred, but in no event later than the end of the Employees tax year following the tax year in which the Employee 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 Employees tax year will not affect the expenses eligible for reimbursement in any other tax year. |
13. | Injunctive Relief. 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. |
14. | Review Period . Employee is hereby advised he has until April 3, 2009, or forty-five (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. Employee agrees that any modifications, material or otherwise, made to this Agreement and General Release do not restart or affect in any manner the original forty-five (45) calendar day consideration period. |
15. | Revocation Period and Effective Date . In the event that Employee elects to sign and return to the Company a copy of this Agreement, he has a period of seven (7) days (the Revocation Period) following the date of such execution to revoke this Agreement and General Release, after which time this agreement will become effective (the Effective Date) if not previously revoked. In order for the revocation to be effective, written notice must be received by the Company no later than close of business on the seventh day after the Employee signs this Agreement and General Release at which time the Revocation Period shall expire. |
16. | 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. |
17. | 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 Employee. Employee acknowledges that he has not relied on any representations, promises, or agreements of any kind made to him in connection with his decision to accept this Agreement and General Release, except for those set forth in this Agreement and General Release. |
- 6 -
18. | HAVING ELECTED TO EXECUTE THIS AGREEMENT AND GENERAL RELEASE, TO FULFILL THE PROMISES AND TO RECEIVE THE SUMS AND BENEFITS IN PARAGRAPH 2 ABOVE, EMPLOYEE FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT AND GENERAL RELEASE INTENDING TO WAIVE, SETTLE AND RELEASE CLAIMS RELEASED BY THIS DOCUMENT THAT HE HAS OR MIGHT HAVE AGAINST EMPLOYER. |
EMPLOYEE | Celanese Corporation: | |||||||
|
||||||||
By:
|
/s/ John J. Gallagher III | By: | /s/ Michael L. Summers | |||||
|
||||||||
|
John J. Gallagher III | Michael L. Summers | ||||||
|
||||||||
Date: February 26, 2009 | Date: March 5, 2009 |
- 7 -