Exhibit 10.1
FORM OF
EXECUTIVE SEVERANCE AGREEMENT,
Dated as of ______________, 1997,
between
LYONDELL PETROCHEMICAL COMPANY,
a Delaware corporation (the "Company"), and
______________________ ("Executive")
TABLE OF CONTENTS
Page
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Section 1. Termination Following Employment by Partnership............. 1
Section 2. Rights and Benefits upon Termination........................ 2
(a) Stock Options............................................... 2
(b) Salary and Other Payment at Termination..................... 3
(c) Crediting of Additional Pension Benefit..................... 4
(d) Executive Deferral Plan..................................... 4
(e) Insurance and Other Benefits................................ 4
(f) Financial Counseling........................................ 5
(g) Outplacement................................................ 5
(h) No Duty to Mitigate......................................... 5
Section 3. Other Benefit Plans......................................... 5
Section 4. Payment Obligations Absolute................................ 5
Section 5. Conditions to Employer's Obligations........................ 6
Section 6. Confidentiality and Cooperation............................. 6
(a) Cooperation................................................. 6
(b) Release of Liability........................................ 7
Section 7. Term of Agreement........................................... 7
Section 8. Arbitration................................................. 7
(a) Arbitrable Matters.......................................... 7
(b) Submission to Arbitration................................... 8
(c) Arbitration Procedures...................................... 8
(d) Compliance with Decisions................................... 9
(e) Costs and Expenses.......................................... 9
Section 9. Notices..................................................... 9
Section 10. Miscellaneous...............................................10
(a) Assignment..................................................10
(b) Construction of Agreement...................................10
(c) Amendment...................................................10
(i)
(d) Waiver......................................................10
(e) Severability................................................10
(f) Successors..................................................10
(g) Taxes.......................................................11
(h) Governing Law...............................................11
(i) Entire Agreement............................................11
(ii)
EXECUTIVE SEVERANCE AGREEMENT
THIS EXECUTIVE SEVERANCE AGREEMENT, is made and entered into this ____ day
of ______________, 1997, by and between LYONDELL PETROCHEMICAL COMPANY, a
Delaware corporation (hereinafter referred to as "Company"), and _____________
an individual (hereinafter referred to as "Executive").
W I T N E S S E T H:
WHEREAS, the Compensation Committee of the Board of Directors of the
Company (the "Compensation Committee") has authorized the Company to enter into
a severance agreement in the form hereof with Executive;
WHEREAS, Executive has been offered a position, anticipated to be effective
on or about January 1, 1998, with Equistar Chemicals L.P. ("Equistar") and it is
in the best interest of the Company that Executive accept this position without
concern that Executive be distracted by personal uncertainties and risks created
by this new assignment;
WHEREAS, it is the Company's intent to assign this Agreement to Equistar
upon Executive's employment by Equistar and all obligations under this Agreement
shall be assumed by Equistar, unless specifically retained by Company;
NOW, THEREFORE, to assure the Company that it will have the continued
dedication of Executive and the availability of Executive's advice and counsel
prior to Executive's employment with Equistar, to induce Executive to remain in
the employ of the Company until employment by Equistar and further, to accept
employment with Equistar and for other good and valuable consideration, the
parties agree as follows:
Section 1. Termination Following Employment by Partnership.
Employer will provide or cause to be provided to Executive the rights and
benefits described in Section 2 of this Agreement in the event that Executive's
employment is terminated within two years following Executive's Employment with
Equistar.
For purposes of this Agreement, "Employer" shall refer to Company prior to
assignment of this Agreement to Equistar and shall refer to Equistar following
Equistar's assumption of the obligations under this Agreement.
Termination must not occur as a result of (A) "Cause" (as defined in
Section 5), (B) Executives' death or permanent disability or (C) Executive's
retirement upon reaching age 65 ("Normal Retirement Date"). Termination shall
also include termination of employment by
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Executive within ninety (90) days following the occurrence of any event which
shall constitute "Constructive Termination for Good Reason."
For purposes of this Agreement, Constructive Termination for Good Reason
means:
(i) the Executive is assigned to any duties or responsibilities that
are not comparable to Executive's position, offices, duties,
responsibilities or status with Equistar at the time of Equistar
employment, or the Executive's reporting responsibilities or titles are
changed and the change results in a reduction of Executive's
responsibilities or position at Equistar;
(ii) the level of benefits or compensation provided to Executive is
reduced below the comparable level of benefits or compensation payable to
similarly situated Executives at Equistar; or
(iii) the Executive is actually transferred, or offered a proposed
transfer, as evidenced in a written communication from Employer to
Executive, to another location other than the location at which he was
primarily employed immediately preceding his initial employment with
Equistar, unless that new location is a major operating unit or facility
of the Company or Equistar that is located within 50 miles of Executive's
primary location as of the date immediately preceding a transfer; provided,
however, (1) Executive, within thirty (30) days from the date that he is
given written notice by the Employer of such actual or proposed transfer,
shall provide the Compensation Committee or the Partnership Governance
Committee of Equistar ("Partnership Governance Committee") with written
notice that the transfer shall constitute a Constructive Termination for
Good Reason, (2) Employer, within twenty (20) days of receipt of the
notice, fails to provide Executive with written notice rescinding the
actual or proposed transfer and (3) if the Employer does not rescind the
transfer, Executive must terminate his employment due to Constructive
Termination for Good Reason within forty (40) days following expiration of
the 20-day period so that in any event Executive shall have terminated his
employment with Employer within 90 days after Executive first receives
written notice from Employer of such actual or proposed transfer.
Section 2. Rights and Benefits upon Termination. In the event Executive
is entitled to receive the rights and benefits described in this Section as a
result of the termination or Constructive Termination for Good Reason of
Executive's employment as described in Section 1 (collectively referred to as
"Termination"), the Employer agrees to provide or cause to be provided to
Executive the following rights and benefits.
(a) Stock Options. With respect to any stock options granted to Executive
under the Company's Executive Long-Term Incentive Plan (the "Stock Option
Plan"), notwithstanding any provision of the Stock Option Plan or Executive's
associated stock option agreement, if any, to the
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contrary, all non-vested options shall become 100% vested and fully exercisable
as of the last business day immediately proceeding Executive's Termination.
If Company experiences a Change in Control and no longer offers any
publicly traded securities prior to Executive's Termination, Employer shall also
pay or cause to be paid to Executive a cash lump sum payment for all outstanding
dividend share credits associated with stock options granted under the Stock
Option Plan. This lump sum payment shall be paid within forty-five (45) calendar
days from the date of the Change in Control.
For purposes of this section, the value of the outstanding dividend share
credits shall be calculated by SCA Consultants, or any other compensation
consultant that is mutually agreeable to the parties (the "Compensation
Consultant"). In preparing its valuation, the Compensation Consultant in its
good faith discretion shall be responsible for designating reasonable and
customary parameters for the methodology used in its calculation. Employer shall
deliver to Executive the determination of the value of his dividend share
credits with payment therefore.
All stock options owned by Executive shall be freely exercisable following
Termination for the remainder of their existing terms without regard to any
earlier date that may be specified therein including, without limitation, an
earlier expiration date specified with respect to Executive's termination of
employment.
(b) Salary and Other Payment at Termination. Employer shall pay to
Executive not later than thirty (30) days following Termination a lump-sum
payment in cash in the amount of three (3) times Executive's "Applicable Annual
Earnings" (as defined below); provided, however, if there are fewer than twenty-
four (24) full months remaining from the date of Termination to Executive's
Normal Retirement Date, the payment Executive shall be entitled to receive
pursuant to this Section 2(b) will equal such amount multiplied by a fraction,
the numerator of which is the number of months (including any fraction of a
month) so remaining to Executive's Normal Retirement Date and the denominator of
which is 24.
For purposes of this Agreement, "Applicable Annual Earnings" shall mean the
sum of Executive's annual base salary in effect on the last day of employment
with Company and Executive's base salary in effect on the last day of employment
with Company and Executive's Average Award (whether or not paid) for personal
services on behalf of the Company prior to Equistar employment. The Average
Award shall be the average, determined over the three year period immediately
prior to Executive's employment by Equistar, of the cash amount of an
Executive's annual award payable under the Company's Value Share Plan (but not
deferred cash associated with any grant of restricted stock or the additional
amount paid to executive which represents pro rata awards for outstanding
performance cycles). Applicable Annual Earnings shall include Executive's annual
base salary and Average Award whether or not paid on a deferred basis, including
without limitation, amounts contributed by or on behalf of Executive under an
Employer-sponsored plan, such as (i) a plan described in section 125 or 401(k)
of the Internal Revenue Code
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of 1986, as amended, or (ii) the Employer's Executive Deferral Plan or an
"excess benefit plan" as defined in the Employee Retirement Income Security Act
of 1974, as amended. Notwithstanding the preceding provisions of this paragraph,
Applicable Annual Earnings does not include any income attributable to stock
options, stock appreciation rights, performance awards other than awards under
an executive bonus plan described above, dividend credits, and restricted stock
granted under, and dividends on shares acquired pursuant to, any stock option
plan, restricted stock plan or performance unit plan.
(c) Crediting of Additional Pension Benefit. Company shall cause
Executive to be credited with an additional five (5) years of (i) age (not to
exceed age 65) and (ii) service with the Employer, under the Company's
Supplementary Executive Retirement Plan (or its successor) for purposes of
determining his accrued benefits thereunder.
If the method to calculate a retirement benefit under Company's qualified
retirement plan and Supplementary Executive Retirement Plan is changed, then the
Executive shall be entitled to an amount under the new plan formula that is the
equivalent of the amount that would have been payable if the Executive had been
credited with the additional age and service described above. Payments
attributable to this enhanced retirement benefit shall be payable under the
Company's non-qualified retirement plan for executives.
(d) Executive Deferral Plan. The provisions of this Section 2(d) shall
apply notwithstanding any provisions of the Company's Executive Deferral Plan
(the "Deferral Plan") or the initial paragraph of Section 2 hereof to the
contrary.
If the Executive experiences a Termination of employment with Equistar
within two years of Executive's employment by Equistar, then, notwithstanding
any other provision of this Agreement, the full amount of contributions and
earnings accrued or credited to Executive's account balance under the Deferral
Plan (as of the date immediately preceding the Termination) shall be immediately
distributed to Executive in a cash lump-sum payment.
(e) Insurance and Other Benefits. To the extent that Executive is
eligible thereunder, then for a period of twenty-four (24) months following
Termination, Executive (and his dependents, as applicable) shall continue to be
covered at Employer's expense by Employer's life insurance, medical, dental,
accident and disability plans or any successor to a plan or program in effect at
Termination for employees in the same class or category as Executive (hereafter
individually and collectively referred to as "Welfare Plan"), subject to the
terms of the Welfare Plan and to Executive's making any required contributions
thereto which contributions shall not exceed those charged to employees in the
same class or category in which Executive was employed by Employer. In the event
that Executive is ineligible to continue to be so covered under the terms of any
welfare Plan, or in the event that Executive is eligible but the benefits
applicable to Executive (and his dependents, as applicable) are not
substantially equivalent to such benefits immediately prior to Termination,
then, for a period of twenty-four (24) months following Termination, Equistar,
at its
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expense, shall provide to Executive (and his dependents, as applicable) through
other sources such benefits as may be necessary to make the benefits applicable
to Executive (and his dependents, as applicable) substantially equivalent to
those in effect immediately prior to Termination. Continuation coverage provided
pursuant to any group health plan maintained by Employer shall be credited
against, and not in addition to, any continuation coverage required under the
Consolidated Omnibus Budget Reconciliation Act of 1985 as amended ("COBRA"). Any
retiree coverage provided to Executive shall be on the same terms and
conditions, including bridging of coverage, as that provided to executives in
the same class or category in which Executive was employed by Employer.
(f) Financial Counseling. For a period of one year following Termination,
Executive shall continue to be covered at Employer's expense under Employer's
financial counseling program, or any successor program, in effect at Termination
for employees in the same class or category as Executive, subject to the terms
of such program. In the event that benefits available to Executive under that
financial counseling program are not substantially equivalent to the benefits
available to Executive at Termination, Employer, at its expense, shall provide
to Executive through other sources such benefits as may be necessary to make the
benefits available to Executive substantially equivalent to those in effect at
Termination.
(g) Outplacement. Employer shall provide to Executive, at its expense but
not to exceed $40,000.00, outplacement assistance for Executive from a
professional outplacement assistance firm which is reasonably suitable to
Executive.
(h) No Duty to Mitigate. Executive's entitlement to benefits hereunder
shall not be governed by any duty to mitigate Executive's damages by seeking
further employment nor offset by any compensation which Executive may receive
from future employment.
Section 3. Other Benefit Plans. The specific arrangements referred to in
this Agreement are not intended (i) to exclude or limit Executive's
participation in other benefit plans or programs in which Executive currently
participates or may participate including, without limitation, retiree benefits,
or benefits which are available to executive personnel generally in the same
class or category as Executive (excluding only the Company's Special Termination
Plan and the special supplemental retirement benefit authorized by the
Compensation Committee on September 13, 1991) or, (ii) to preclude or limit
other compensation or benefits as may be authorized by the Compensation
Committee or the Partnership Governance Committee of Equistar ("Partnership
Governance Committee") from time to time. To the extent not otherwise paid or
provided, Employer shall timely pay or provide to the Executive and/or the
Executive's dependents any other amounts or benefits required to be paid or
provided or which the Executive or the Executive's dependents are eligible to
receive pursuant to this Agreement and under any plan program, policy or
practice or contract or agreement of Employer as in effect and applicable
generally to executive personnel in the same class or category of Executive.
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Section 4. Payment Obligations Absolute. Employer's obligation to pay or
provide to cause to be paid or provided to Executive the amounts and benefits
and to make the arrangements provided in this Agreement shall be absolute and
unconditional and shall not be affected by any circumstances (including, without
limitation, any setoff, claim, counterclaim, recoupment, defense or other right,
which the Employer may have against Executive or anyone else). All amounts
payable by or on behalf of Employer hereunder shall be paid without notice or
demand. Each and every payment made hereunder by or on behalf of the employer
shall be final and Employer and its subsidiaries or affiliates, for any reason
whatsoever, shall not seek to recover all or any part of such payment from
Executive or from whomever shall be entitled thereto. In no event shall an
asserted violation of any provision of this Agreement constitute a basis for
deferring or withholding any amount payable to, or on behalf of, Executive under
this Agreement.
Section 5. Conditions to Employer's Obligations. The Employer shall have
no obligation to provide or cause to be provided to Executive the rights and
benefits described in this Agreement if Employer terminates Executive's
employment for "Cause," which for purposes of this Agreement shall be defined
and limited to: (i) the continued and willful refusal by Executive to
substantially perform his duties (other than a willful refusal to perform a duty
which constitutes Constructive Termination for Good Reason or refusal resulting
from Executive's incapacity due to physical or mental illness), after demand for
substantial performance is delivered by the Partnership Governance Committee
which demand specifically identifies the manner in which Partnership Governance
Committee has determined that Executive has not substantially performed his
duties, and Executive's performance is not cured to the Partnership Governance
Committee's reasonable satisfaction within thirty (30) days from such demand;
(ii) the engagement by Executive in willful misconduct or dishonesty that is
materially injurious to the Company or Equistar, monetarily or otherwise; or
(iii) Executive's final conviction of a felony. Notwithstanding the foregoing,
Employer shall not be deemed to have terminated Executive for Cause without (i)
reasonable written notice to Executive setting forth the reasons for Employer's
intention to terminate Executive for Cause and (ii) an opportunity for
Executive, together with his counsel, to be heard before the Partnership
Governance Committee. Notwithstanding any contrary provision of this Agreement,
it is specifically agreed that Cause shall not include any act or omission by
Executive in the good faith exercise of Executive's business judgment as an
officer of the Company or Equistar.
If Executive is terminated for Cause, Employer, in accordance with and
subject to the provisions of the immediately preceding paragraph, shall not be
required to provide Executive with at least sixty (60) days advance written
notice of such termination for Cause. If Executive is terminated for a reason
other than for Cause, Employer shall be required to provide sixty (60) days
advance written notice to Executive unless Executive agrees to a shorter notice
period. Regardless of the reason for termination, Executive shall receive, an
addition to any other payments provided to Executive hereunder or otherwise,
payment for his accrued base salary and a vacation allowance based on years of
service through his termination date.
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Section 6. Confidentiality and Cooperation.
(a) Cooperation. Executive agrees that, at all times following
Termination, Executive will furnish such information and render such assistance
and cooperation as may reasonably be requested in connection with any litigation
or legal proceedings concerning the Company, any of its subsidiaries or
affiliates or Equistar (other than any legal proceedings arising out of or
concerning Executive's employment or its Termination). In connection with such
cooperation, Employer will pay or reimburse Executive for reasonable expenses.
(b) Release of Liability. Executive hereby represents and covenants that
prior to the time he is eligible to receive any payments provided for in Section
2 of this Agreement, he will execute and deliver to the Employer, on a form
reasonably satisfactory to Employer and the Executive, a separate release and
waiver, which, without limiting the generality of the foregoing, shall include a
release and discharge of the Company, its subsidiaries and affiliates or
Equistar, and its and their directors, Partnership Governance Committee,
officers, employees, owners, agents, successors and assigns from any and all
suits, causes of action, demands, claims, charges, complaints, liabilities,
costs, losses, damages, injuries, bonds, judgments, attorneys' fees and
expenses, in any form whatsoever, in law or in equity, whether known or unknown,
whether suspected or unsuspected, arising out of Executive's employment with
Company or with Equistar through his Termination, including, without limitation,
claims arising under any federal, state or local law for breach of an implied
covenant of good faith and fair dealing, breach of contract, defamation,
slander, negligent misrepresentation, fraud, intentional or negligent
interference with business relations, and employment discrimination, including,
but not limited to, claims under the Age Discrimination in Employment Act, the
Americans with Disabilities Act and the Texas Commission on Human Rights Act.
Section 7. Term of Agreement. This Agreement shall remain in effect until
two years from the date of Executive's employment by Equistar, unless otherwise
terminated by resolution of the Compensation Committee of the Company's Board of
Directors prior to Executive's employment by Equistar or by the Partnership
Governance Committee following Executive's employment by Equistar. Employer
shall notify Executive in writing of the effective date of Termination if the
Compensation Committee or Partnership Governance Committee determines to
terminate this Agreement. It is the Employer's intention to provide or cause to
be provided to Executive the benefits set forth herein if Executive is
terminated from employment by Equistar and the other applicable conditions are
satisfied.
Section 8. Arbitration.
(a) Arbitrable Matters. Any dispute under this Agreement arising between
the parties shall be settled by binding arbitration. In the event of any dispute
between Executive and Employer hereunder, either party shall be entitled to
submit the dispute to arbitration. The arbitration proceeding shall be held in
Houston, Texas (unless otherwise mutually agreed by the parties), and shall be
conducted in accordance with the Center for Public Resources ("CPR") Rules for
Non-
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Administered Arbitration of Business Disputes. The arbitration shall be
conducted by a sole arbitrator appointed in accordance with the rules
established by CPR (the "Arbitrator").
Any arbitration between Executive and Employer pursuant to this Agreement
shall be governed by the United States Arbitration Act, 9 U.S.C. (S)(S) 1-16 (or
its successor). If the United States Arbitration Act is determined by the
Arbitrator not to apply to this type of employer/employee agreement based on
precedential legal authority, the parties agree to arbitrate any dispute under
the Texas General Arbitration Act, V.A.T.S. Art. 238-6 et. seq. (or its
successor).
(b) Submission to Arbitration. The party submitting any matter arising
out of this Agreement to arbitration (the "demanding party") shall do so by
delivering written notice thereof (the "arbitration notice") to the other party
(the "noticed party"). In addition to indicating the demanding party's intention
to commence arbitration proceedings, the arbitration notice shall state the
nature, with reasonable detail, of the dispute and the demanding party's claim
or claims, the question or questions to be submitted for decision or award by
arbitration and the relief or remedy sought. A copy of the arbitration notice
shall be concurrently provided to CPR, along with a copy of this Agreement and a
request to appoint an Arbitrator. Either party may bring an action in any court
of competent jurisdiction to compel arbitration under this Agreement.
(c) Arbitration Procedures. The Arbitrator shall apply the substantive
law (and the law of remedies, if applicable) of the State of Texas as applicable
to the claim asserted. The Federal Rules of Evidence shall apply. The Arbitrator
shall have no authority to change this Agreement unless otherwise agreed by both
parties. The Arbitrator, and not any federal, state, or local court or agency,
shall have exclusive authority to resolve any dispute relating to the
interpretation, applicability, enforceability or formation of this Agreement,
including but not limited to any claim that all or any part of this Agreement is
void or voidable. Any party may be represented by an attorney or other
representative selected by the party.
The Arbitrator shall have jurisdiction to hear and rule on pre-hearing
disputes and is authorized to hold pre-hearing conferences by telephone or in
person as the Arbitrator deems necessary. The Arbitrator shall have the
authority to entertain a motion to dismiss and/or a motion for summary judgment
by any party and shall apply the standards governing such motions under the
Federal Rules of Civil Procedure.
At any time after the date of receipt of the arbitration notice, each party
can make discovery requests of the other in any form permitted under the Federal
Rules of Civil Procedure. The recipient of a discovery request shall have 20
days after the receipt of such request to object to any or all portions of such
request, and shall respond to any portions of such request not so objected to
within 30 days of the receipt of such request. All objections shall be in
writing and shall indicate the reasons for such objections. The objecting party
shall insure that all objections and responses are received by other parties
within the above time periods. Any party seeking to compel discovery following
receipt of an objection shall file with the other party and the Arbitrator a
motion to compel, including
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a copy of the initial request and the objection. The Arbitrator shall allow 10
days for responses to the motion to compel before ruling. Claims of privilege
and other objections shall be determined as they would in federal court in a
case applying Texas law.
At least 30 days before the arbitration, the parties must exchange lists of
witnesses, including any expert witnesses, and copies of all exhibits intended
to be used at the arbitration. Each party shall have the right to subpoena
witnesses and documents for the arbitration. Either party may arrange for a
court reporter to provide a stenographic record of proceedings. The cost of the
court reporter will be paid by the Company or Equistar.
(d) Compliance with Decisions. To the extent permissible under applicable
law, the parties agree that the award of the Arbitrator shall be final and
binding and shall be subject only to the judicial review permitted by the United
States Arbitration Act or other applicable arbitration law pursuant to Section
10(a) hereof. Judgment on the arbitration award may be entered and enforced in
any court having jurisdiction over the parties or their assets. It is the intent
of the parties that the arbitration provisions hereof be enforced to the fullest
extent permitted by applicable law.
(e) Costs and Expenses. The Employer shall promptly pay or reimburse
Executive for all costs and expenses, including, without limitation, attorneys'
fees and witnesses' fees, incurred by Executive as a result of any arbitration
(regardless of the outcome thereof) arising out of this Agreement. All expenses
of such arbitration, including the reasonable fees and expenses of legal counsel
for Executive and the costs and expenses incurred by the Arbitrator, shall be
borne by Employer.
Section 9. Notices. All notices, requests, demands and other
communications required or permitted to be given hereunder (hereinafter referred
to as "notices") shall be in writing and shall be deemed to have been duly given
if delivered by-hand, given by prepaid telecopy, telex or telegram, or mailed
via certified or registered U.S. mail, to the party to receive such notice at
such party's address set forth below; provided that either party may change its
address for notice by giving to the other party written notice of such change.
If to Company:
Lyondell Petrochemical Company
1221 McKinney, Suite 1600
Houston, TX 77002
Attn: Chairman of the Board of Directors
If to Equistar:
Equistar Chemicals L.P.
1221 McKinney, Suite 1600
Houston, Texas 77010
Attn: Partnership Governance Committee
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If to Executive:
____________________
____________________
____________________
Any notice given pursuant to this Agreement shall be deemed received (i) if
delivered by-hand, when delivered; (ii) if sent by telecopy, telex or telegram,
24 hours after sending; and (iii) if mailed, when delivered.
Section 10. Miscellaneous.
(a) Assignment. No right, benefit or interest hereunder shall be subject
to assignment, anticipation, alienation, sale, encumbrance, charge, pledge,
hypothecation or set-off in respect of any claim, debt or obligation, or to
execution, attachment, levy or similar process; provided, however, that
Executive may assign any right, benefit or interest hereunder if such assignment
is permitted under the terms of any plan or policy of insurance, or annuity
contract governing such right, benefit or interest.
(b) Construction of Agreement. Nothing in this Agreement shall be
construed to amend any provision of any plan or policy of the Company or
Equistar except as otherwise expressly noted herein. This Agreement is not, and
nothing herein shall be deemed to create, a commitment of continued employment
of Executive by the Company or any of its subsidiaries or by Equistar. The
captions of this Agreement are not part of the provisions hereof and shall have
no force or effect. Whenever the context of this Agreement so requires, the
masculine gender includes the feminine gender, and words used in the singular or
plural will include the other. The words "herein," "hereunder" and other similar
compounds of the word "here" refer to the entire Agreement and not to any
particular, section or provision.
(c) Amendment. This Agreement may not be amended, modified or canceled
except by written agreement of the parties or their respective successors and
legal representatives.
(d) Waiver. No provision of this Agreement may be waived except by a
writing signed by the party to be bound thereby.
(e) Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, the
remaining provisions of this Agreement shall remain in full force and effect to
the fullest extent permitted by law.
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(f) Successors. This Agreement is personal to Executive and without the
prior written consent of the Company or Equistar shall not be assignable by
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. The Company will require Equistar to assume this
Agreement on Executive's employment with Equistar, and to agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform this Agreement if no such succession had taken place.
Failure of the Company to obtain such assumption and agreement shall constitute
a breach of this Agreement and shall entitle Executive to compensation from the
Company in the same amount and on the same terms as he would be entitled
hereunder with respect to Constructive Termination for Good Reason.
This Agreement shall be binding upon and inure to the benefit of the
Company, Equistar and any successor organization or organizations which shall
success to substantially all of the business and/or assets of the Company
(whether direct or indirect by means of merger, consolidation, acquisition of
substantially all the assets of the Company, or otherwise, including by
operation of law).
(g) Taxes. Any payment or delivery required under this Agreement shall be
subject to all requirements of the law with regard to withholding of taxes,
filing, making of reports and the like.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO ITS
CONFLICTS OF LAW PRINCIPLES.
(i) Entire Agreement. Except as otherwise provided in Section 4 or
Section 12(b) hereof, this Agreement sets forth the entire agreement and
understanding of the parties hereto with respect to the matters covered hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the ___
day of ________________, 19__.
LYONDELL PETROCHEMICAL COMPANY
By:
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Name: Dan F. Smith
Title: President & CEO
EXECUTIVE
By:
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Name:
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Title:
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