Exhibit 10.4
AGREEMENT AND GENERAL RELEASE
Celanese Corporation, its Subsidiaries and its Affiliates, (“Employer” or “Company”), 1601 West LBJ Freeway, Dallas, Texas 75234 and William P. Antonace, his heirs, executors, administrators, successors, and assigns (“Employee”), agree that:
1. Last Day of Employment (Separation Date). The last day of employment with Celanese is February 29, 2008.
2. Consideration. In consideration for signing this Agreement and General Release and compliance with the promises made herein, Employer and Employee agree:
a. Voluntary Resignation. Employee agrees to voluntarily resign from the Employer effective February 29, 2008.
b. Separation Pay. Pursuant to the terms of your offer letter dated April 6, 2007, the Company will pay your base salary plus target bonus for a period of one (1) year; or a total payment of $467,500, minus lawful deductions. Such amount shall be paid in substantially equal (bi-weekly) installments that commence for the period beginning March 1, 2008 and ending February 28, 2009, subject to execution of this Agreement.
c. Bonus. To the extent the Employer pays bonuses under its bonus plan for 2007, Employee will receive a bonus payout for 2007. The 2007 bonus payout will be based on Company and Employee’s individual performance, where the final amount paid will be based on a 0.5 modifier. The 2007 bonus payout will be $109,009, minus lawful deductions and will be paid at the same time as other similarly situated executives receive their 2007 bonus payouts, which is currently planned for March 14, 2008. Employee will not receive a performance bonus payout for 2008.
d. Restricted Stock Unit Grant. With respect to the Performance-Based Restricted Stock Unit (RSU) Agreement made effective between the Company and the Employee as of April 25, 2007, Employee will be eligible to vest in not more than 7,680 RSUs pursuant to section 3(d)(ii) of such RSU agreement, as if employment with the Company was terminated without Cause (as defined in the RSU agreement) effective February 29, 2008, in the amounts and on the vesting dates outlined in the attached Exhibit “A”, where the actual number of eligible RSUs that ultimately vest on each vesting date will be determined based on the extent to which the Performance Targets are achieved for such Performance Period according to the terms and conditions of the RSU agreement.
e. Relocation Costs. Employer waives any obligation for the Employee to reimburse the Company for relocation costs paid by the Company.
f. 401(k) Vesting. As of January 1, 2008, Employee is vested in the Company 401(k).
g. Unused Vacation. The Employer will pay to Employee wages for prorated unused vacation for 2008 and any vacation carried over from 2007.
h. Company Benefit Plans. Healthcare & dental coverage will continue until the last day of the month in which Employee separates, in this case February 29, 2008, according to Employee’s current health & dental plan elections. All other normal company programs (e.g., life insurance, long term disability, 401(k) contributions, etc.) will continue through the date of resignation.
i. COBRA Coverage. The Employer will pay the Employee’s healthcare & dental COBRA premiums for a period of three (3) months following the date of resignation, or through May 31, 2008. Thereafter, Employee shall be entitled to continue receiving such healthcare & dental plan coverage via COBRA for the remainder of the COBRA period at Employee’s expense.
1
j. Outplacement Services. The Employer will pay the cost for Employee to participate in the Executive Job Search Program offered by Challenger, Gray & Christmas for outplacement services for a period of up to one year following the date of resignation, or through February 28, 2009.
k. Unemployment. Employer will not contest any unemployment claims made by the Employee.
l. Return of Company Property. 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.
3. No Consideration Absent Execution of this Agreement. Employee understands and agrees thathe/she would not receive the moniesand/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., 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, 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 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. |
5. Affirmations. Employee affirms thathe/she 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”),
2
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 shouldhe/she 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 further affirms thathe/she has reported all hours worked as of the date of this release and has been paidand/or has received all leave (paid or unpaid), compensation, wages, bonuses, commissions,and/or benefits to whichhe/she may be entitled and that no other leave (paid or unpaid), compensation, wages, bonuses, commissionsand/or benefits are due to him/her, except as provided in this Agreement and General Release. Employee furthermore affirms thathe/she has no known workplace injuries or occupational diseases and has been providedand/or has not been denied any leave requested under the Family and Medical Leave Act.
6. Confidentiality. 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 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.
7. Non-competition/Non-solicitation. 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 (52) weeks, following the Effective Date (the “Restricted Period”), Employee acknowledges and agrees thathe/she will not: (i) directly or indirectly solicit sales of like products similar to those produced or sold by Employer; or (ii) directly engage or become employed 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. In addition, for (2) years, Employee will not directly or indirectly solicit employees of Celanese for employment. However, 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.
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.
3
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. 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 reputationand/or his business.
12. Future Cooperation after Separation Date. After separation, 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 Employee’s 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 Employee’s 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 March 21, 2008, twenty-one (21) 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 twenty-one (21) 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/she 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 thathe/she has not relied on any representations, promises, or agreements of any kind made to him/her in connection with his decision to accept this Agreement and General Release, except for those set forth in this Agreement and General Release.
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 ALL CLAIMS HE/SHE HAS OR MIGHT HAVE AGAINST EMPLOYER.
4
IN WITNESS WHEREOF, the parties hereto knowingly and voluntarily executed this Agreement and General Release as of the date set forth below.
| EMPLOYEE: | Celanese Corporation: | |
By: /s/ William P. Antonace | By: /s/ Kevin Rogan | |
Date: March 21, 2008 | Date: March 28, 2008 |
5
EXHIBIT A
Calculation of the Restricted Stock Units (RSUs) Eligible for Vesting for William P. Antonace:
| Calculation of RSUs Eligible for Vesting | ||||||||||||||||||||
| Eligible RSUs | Eligible RSUs | |||||||||||||||||||
Performance Period | before Separation | Numerator | Denominator | upon Separation(1) | Vesting Date | |||||||||||||||
| April 25, 2007 to September 30, 2008 | 4,687 RSUs | 12 | 17 | 3,308 RSUs | October 1, 2008 | |||||||||||||||
| April 25, 2007 to September 30, 2009 | 4,687 RSUs | 12 | 29 | 1,939 RSUs | October 1, 2009 | |||||||||||||||
| April 25, 2007 to September 30, 2010 | 4,688 RSUs | 12 | 41 | 1,372 RSUs | October 1, 2010 | |||||||||||||||
| April 25, 2007 to September 30, 2011 | 4,688 RSUs | 12 | 53 | 1,061 RSUs | October 1, 2011 | |||||||||||||||
| Total | 18,750 RSUs | 7,680 RSUs | ||||||||||||||||||
Note:
| (1) | Pursuant to the Performance-Based Restricted Stock Unit (RSU) Agreement made effective between the Company and William P. Antonace as of April 25, 2007, the percentage of RSUs eligible to vest at the end of each Performance Period shall be determined as if employment with the Company was terminated without Cause effective February 29, 2008, and where the actual number of eligible RSUs that ultimately vest on each vesting date will be determined based on the extent to which the Performance Targets are achieved for such Performance Period according to the terms and conditions of the RSU agreement. |
6