Exhibit 10.22
AIR PRODUCTS AND CHEMICALS, INC.
CORPORATE EXECUTIVE COMMITTEE
RETENTION/SEPARATION PROGRAM
ARTICLE I
PURPOSE AND TERM OF PLAN
Section 1.01 Purpose. Air Products and Chemicals, Inc. hereby
establishes the Air Products and Chemicals, Inc. Corporate Executive Committee
Retention/Separation Program (the "Plan") for the purpose of assisting Air
Products in retaining and, where appropriate, facilitating the planned
separations of Covered Executives (as defined below) and, in certain cases,
providing severance benefits to a Covered Executive.
Section 1.02 Term of the Plan. The Plan, as set forth herein,
shall be effective July 17, 2003. The Plan will continue until such time as the
Committee (as defined below) acting in its sole discretion, elects to modify,
supercede or terminate the Plan in accordance with, and subject to, the
provisions of Article V.
ARTICLE II
DEFINITIONS
Section 2.01 "Administrator" shall mean the CEO, who shall
administer the Plan in accordance with its terms.
Section 2.02 "Air Products" shall mean Air Products and Chemicals,
Inc.
Section 2.03 "Benefit" or "Benefits" shall mean any or all of the
benefits that a Covered Executive is entitled to receive pursuant to Article III
of the Plan.
Section 2.04 "Bonus" shall mean 100% of the midpoint target bonus
for a Covered Executive's salary grade, determined as of the Covered Executive's
Employment Termination Date under the grant guidelines for the Air Products
Annual Incentive Plan or similar successor or substitute annual incentive plan
or program. For purposes of Section 3.01(b), such Bonus shall be prorated by
multiplying the amount of the Bonus by a fraction, the numerator of which is the
number of days in the current Plan Year through the Covered Executive's
Employment Termination Date, and the denominator of which is 365.
Section 2.05 "CEO" shall mean the Chief Executive Officer of Air
Products.
Section 2.06 "Change in Control" shall be as defined under the
Company's standard change in control agreement for senior executives or, if
applicable, the change in control agreement that is in effect for a Covered
Executive at the time of the Change in Control.
Section 2.07 "Committee" shall mean the Management Development and
Compensation Committee of the Air Products Board of Directors, that may act on
behalf of the Company with respect to the Plan as provided in the Plan.
Section 2.08 "Company" shall mean Air Products and any
Subsidiaries which have adopted the Plan with the approval of the Committee. The
term "Company" shall include
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any Subsidiary which had adopted the Plan or any successor to Air Products such
as a corporation succeeding to the business of Air Products or any Subsidiary,
by merger, consolidation or liquidation, or purchase of assets or stock or
similar transaction.
Section 2.09 "Covered Executive" shall mean each individual who
has been appointed by the CEO to serve as a member of the Corporate Executive
Committee or any similar, successor group of Company-wide policy-making
"executive officers" as such term is defined under the Securities Exchange Act
of 1934, other than an individual who is a party to an individual employment
agreement (or other individual agreement providing for severance benefits
excluding an agreement that applies solely in the event of a Change in Control)
with the Company approved by the Air Products Board of Directors or the
Committee.
Section 2.10 "Disability" shall be as defined under the Company's
long-term disability plan.
Section 2.11 "Employment Termination Date" shall mean the date
specified or agreed to by the CEO in writing on which the active employment
relationship between the Covered Executive and the Company is to be and in fact
is terminated.
Section 2.12 "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
Section 2.13 "Long-Term Incentive Plan" shall mean the Air
Products Long-Term Incentive Plan approved by Air Products' shareholders most
recently on 23 January 2003, together with all predecessor and similar successor
or substitute intermediate and/or long-term incentive compensation plan or
program.
Section 2.14 "Plan" shall mean the Air Products and Chemicals,
Inc. Corporate Executive Committee Retention/Severance Program, as set forth
herein, and as the same may from time to time be amended.
Section 2.15 "Plan Year" shall mean each period commencing on
October 1 during which the Plan is in effect and ending on the subsequent
September 30.
Section 2.16 "Salary" shall mean an amount equal to the annual
rate of a Covered Executive's base salary payable to the Covered Executive in
all capacities with the Company and its Subsidiaries or affiliates for the Plan
Year in which a Covered Executive's Employment Termination Date occurs.
Section 2.17 "Subsidiary" shall mean any corporation in which Air
Products owns, directly or indirectly, more than 50% of the voting securities.
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ARTICLE III
ENTITLEMENT TO AND DESCRIPTION OF BENEFITS
Section 3.01 Cash Benefits. Upon a Covered Executive's Employment
Termination Date and his satisfaction of the conditions specified in Section
3.03 of the Plan, the Covered Executive shall be entitled to receive the
following Benefits as well as those referred to under Section 3.02: (a) a cash
severance Benefit equal to the aggregate of the Covered Executive's Salary plus
Bonus, (b) an amount equivalent to and in lieu of the Covered Executive's Bonus
for the year in which the Employment Termination Date occurs, (c) any accrued
but unpaid vacation pay, any similar unpaid items that have accrued and to which
the Covered Executive has become entitled as of his Employment Termination Date,
including declared but unpaid bonuses and unreimbursed employee business
expenses, and (d) a stipend to cover miscellaneous transition expenses including
outplacement assistance and legal fees, such stipend to be an amount determined
by the Administrator, in his discretion, acting on behalf of the Company.
Section 3.02 Long-Term Incentive Plan Benefits. In addition to the
Benefits payable under Section 3.01, a Covered Executive's outstanding Long-Term
Incentive Plan awards shall be treated as follows:
(a) All stock options and stock appreciation rights which
have been outstanding for at least one year prior to the Covered Executive's
Employment Termination Date shall continue to vest in accordance with their
normal vesting schedule (if not fully vested as of the Employment Termination
Date) and shall remain in effect for the remainder of their stated term, as set
forth in the agreements governing such awards, in each case as if the Covered
Executive had continued in employment following the Employment Termination Date.
(b) All unearned performance shares or other awards with
performance-based earnout or vesting shall earn out or vest consistent with the
decision made by or on behalf of the Company for other senior executives for the
relevant cycle and shall be paid out within 30 days of earn out or vesting.
(c) All awards, including career shares and earned-out
deferred performance shares, which are subject to time-based vesting or other
non-performance-based conditions, shall be paid out within 30 days of the
Covered Executive's Employment Termination Date (or, if later, the end of the
revocation period of the release described in Section 3.03).
Section 3.03 Conditions to Entitlement to Benefit. To be eligible
to receive any Benefits under the Plan after the Covered Executive's Employment
Termination Date has been set, a Covered Executive must (a) continue in his then
current office and perform such duties for the Company as are typically related
to the Covered Executive's position (or such other position as the CEO
reasonably requests) including identifying, recruiting and/or transitioning the
Covered Executive's successor, in all events performing all assigned duties in
the manner reasonably directed by the CEO in his sole discretion, and cease his
employment on the Employment Termination Date; (b) execute a release and
discharge of the Company, in
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substantially the form attached hereto as Appendix A, from any and all claims,
demands or causes of action (other than as provided in said Appendix A); and (c)
execute a noncompetition, nonsolicitation, and nondisparagement agreement that
extends for the two-year period following the Covered Executive's Employment
Termination Date in substantially the form attached hereto as Appendix B, with
such changes therein as the Administrator shall determine, in his discretion,
acting on behalf of the Company. No Benefits due hereunder shall be paid to a
Covered Executive who has not complied in all respects with the requirements of
this Section 3.03.
Section 3.04 Method of Payment. The cash Benefits to which a
Covered Executive is entitled, as determined pursuant to Section 3.01 hereof,
shall be paid in a lump sum, subject to all employment and withholding taxes
applicable to the type of payments made. In general, payments shall be made
within 30 days after the Covered Executive's Employment Termination Date or, if
later, after the expiration of any revocation period for the release signed by
the Covered Executive pursuant to Section 3.03. Long-Term Incentive Plan awards,
referred to in Section 3.02, will be paid in the form, and subject to applicable
withholding, as provided in the respective award agreements.
Section 3.05 Death or Disability. If a Covered Executive incurs
Disability or dies before the Employment Termination Date has been set, no Plan
payments or other benefits will be due and owing to the Executive or, in the
case of his death, to his estate or beneficiary.
If a Covered Executive incurs Disability or dies after his Employment
Termination Date has been set but not attained, the Administrator shall cause
any Benefits due under the Plan to be paid to the Covered Executive or, in the
case of his death, to the Covered Executive's designated beneficiary or to his
estate; provided, however, that if the Covered Executive dies after he has
retired prior to attaining the Employment Termination Date, no Benefits shall be
due and owing under the Plan to the Covered Executive's designated beneficiary,
his estate, or any other person. For this purpose, "retire" means to have
separated from employment and begun to receive an immediate pension benefit
under a Company-sponsored defined benefit pension plan.
A Covered Executive's beneficiary designation shall be made in the
manner, and at the time, prescribed by the Administrator in his sole discretion.
In the absence of an effective beneficiary designation hereunder, the Covered
Executive's estate shall be deemed to be the designated beneficiary.
Section 3.06 Change in Control. In the event of a Change in
Control of the Company, the change in control agreement applicable to the
Covered Executive shall continue in full force and effect and the Plan shall be
null and void; and, if the Change in Control occurs after the Employment
Termination Date has been set but before the Employment Termination Date, the
change in control agreement applicable to the Covered Executive shall continue
in full force and effect and the Employment Termination Date under the Plan
shall be treated under the change in control agreement as the Covered
Executive's "Termination Date" for other than death, "Disability" or "Cause", as
such terms appearing in quotations are defined in the change in control
agreement, and the Plan shall be null and void.
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ARTICLE IV
ADMINISTRATION
Section 4.01 Authority and Duties. It shall be the duty of the
Administrator, on the basis of information supplied to him by the Company, to
determine the entitlement of each Covered Executive to Benefits under the Plan,
to calculate the amount of the cash Benefits payable to each such Covered
Executive, and to determine the manner and time of payment of the Benefits
consistent with the provisions hereof. The Company shall make such payments as
the Administrator determines to be due to Covered Executives. The Administrator
shall have the full power and authority to construe, interpret and administer
the Plan, to correct deficiencies therein, and to supply omissions. All
decisions, actions, and interpretations of the Administrator shall be final,
binding, and conclusive upon the parties.
Section 4.02 Expenses of the Administrator. All reasonable
expenses of the Administrator shall be paid or reimbursed by the Company upon
proper documentation. The Company shall indemnify and defend the Administrator
against personal liability for actions taken in good faith in the discharge of
his duties.
Section 4.03 Actions of the Administrator. Whenever a
determination is required of the Administrator under the Plan, such
determination shall be made solely at the discretion of the Administrator. In
addition, the exercise of discretion by the Administrator need not be uniformly
applied to similarly situated Covered Executives and shall be final and binding
on each Covered Executive or beneficiary(ies) to whom the determination is
directed.
ARTICLE V
AMENDMENT AND TERMINATION
The Company, acting through the Committee, retains the right,
at any time and from time to time, to amend, suspend, or terminate the Plan in
whole or in part, for any reason, and, except as provided below, without either
the consent of or the prior notification to any Covered Executive.
Notwithstanding the foregoing, no such amendment, suspension or termination
shall (a) give the Company the right to recover any amount paid to a Covered
Executive prior to the date of such action, (b) cause the cessation and
discontinuance of payments of Benefits to any person or persons under the Plan
already receiving Benefits, or (c) be effective to terminate or reduce the
Benefits or prospective Benefits of any Covered Executive whose Employment
Termination Date has been set as of the date of such amendment, suspension or
termination (unless the express written consent of the Covered Executive has
been obtained with respect thereto).
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ARTICLE VI
DUTIES OF THE COMPANY
Section 6.01 Records. The Company shall supply to the
Administrator all records and information necessary to the performance of the
Administrator's duties.
Section 6.02 Discretion. Any decisions, actions or interpretations
to be made under the Plan by the Board, the Committee, the Company, or the
Administrator, acting on behalf of the Company, shall be made in its or their
respective sole discretion, not in any fiduciary capacity and need not be
uniformly applied to similarly situated individuals and shall be final, binding
and conclusive upon all parties.
ARTICLE VII
CLAIMS PROCEDURES
Section 7.01 Application for Benefits. A person who believes that
he is being denied a Benefit to which he is entitled under the Plan (hereinafter
referred to as a "Claimant") may file a written request with the Administrator
setting forth the claim. A notice denying or granting the claim shall be
provided to the Claimant within ninety (90) days after the Administrator's
receipt of the claim, unless special circumstances require an extension of time
for processing the claim. If such an extension is required, notice of the
extension shall be furnished by the Administrator to the Claimant within the
initial 90-day period and in no event shall such extension exceed a period of
ninety (90) days from the end of the initial 90-day period. Any extension notice
shall indicate the special circumstances requiring the extension and the date on
which the Administrator expects to render a decision on the claim.
If the claim is denied in whole or part, the Claimant shall be provided
a written or electronic notice, using language calculated to be understood by
the Claimant, setting forth (a) the specific reason or reasons for such denial
and the specific reference to relevant provisions of the Plan upon which such
denial is based, (b) a description of any additional material or information
necessary for the Claimant to perfect his claim and an explanation why such
material or such information is necessary, (c) appropriate information as to the
steps to be taken if the Claimant wishes to submit the claim for review and the
time limits for requesting a review, and (d) the Claimant's right to bring an
action for benefits under ERISA Section 502 following an adverse benefit
determination on review.
Section 7.02 Appeals of Denied Claims for Benefits. Within sixty
(60) days after receipt by the Claimant of the notice described above, the
Claimant may request in writing that the Administrator review the determination.
The Claimant or his duly authorized representative may review, upon request and
without charge, copies of all documents, records, and other information relevant
to his claim and submit documents, records, or written comments for
consideration by the Administrator. If the Claimant does not request a review of
the initial determination within such 60-day period, the Claimant shall be
barred and stopped from challenging the determination.
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The decision on review normally shall be made within sixty (60) days of
the Administrator's receipt of the request for review. If an extension of time
is required due to special circumstances, the Claimant shall be notified by the
Administrator prior to the termination of the initial 60-day period, and in no
event shall such extension exceed a period of sixty (60) days from the end of
the initial 60-day period. The extension notice shall indicate the special
circumstances requiring extension of time and the date by which the
Administrator expects to render a decision on the claim. The decision on review
shall be given to the Claimant within the applicable time limit discussed above.
All decisions on review shall be final and binding with respect to all concerned
parties. The decision on review shall set forth, in a manner calculated to be
understood by the Claimant (a) the specific reasons for the decision and shall
include references to the relevant Plan provisions upon which the decision is
based, (b) the Claimant's right to receive, upon request and free of charge,
reasonable access to and copies of all documents, records, and other
information, relevant to his benefits, and (c) the Claimant's right to bring a
civil action under ERISA Section 502(a).
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Nonalienation of Benefits. None of the payments,
Benefits or rights of any Covered Executive shall be subject to any claim of any
creditor, and, in particular, to the fullest extent permitted by law, all such
payments, Benefits and rights shall be free from attachment, garnishment,
trustee's process, or any other legal or equitable process available to any
creditor of such Covered Executive. No Covered Executive shall have the right to
alienate, anticipate, commute, pledge, encumber or assign any of the Benefits or
payments which he may expect to receive, contingently or otherwise, under the
Plan.
Section 8.02 No Contract of Employment. Neither the establishment
of the Plan, nor any modification thereof, nor the creation of any fund, trust
or account, nor the payment of any Benefits shall be construed as giving any
Covered Executive, or any person whosoever, the right to be retained in the
service of the Company, and all Covered Executives shall remain subject to
discharge to the same extent as if the Plan had never been adopted.
Section 8.03 Entire Agreement. Except as may be provided in an
executive change in control severance agreement (or, if applicable, the change
in control agreement that is in effect for a Covered Executive at the time of a
Change in Control) between the Company and a Covered Executive, this Plan
document, as it may be amended by the Committee, and the documents specifically
referenced herein, or in such amendment, shall constitute the entire agreement
between the Company and the Covered Executive with respect to the Benefits
promised hereunder and no other agreements, representations, oral or otherwise,
express or implied, with respect to such benefits shall be binding on the
Company.
Section 8.04 Severability of Provisions. If any provision of the
Plan shall be held invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provisions hereof, and the Plan shall be construed
and enforced as if such provisions had not been included.
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Section 8.05 Successors, Heirs, Assigns, and Personal
Representatives. The Plan shall be binding upon the heirs, executors,
administrators, successors and assigns of the parties, including each Covered
Executive, present and future.
Section 8.06 Headings and Captions. The headings and captions
herein are provided for reference and convenience only, shall not be considered
part of the Plan, and shall not be employed in the construction of the Plan.
Section 8.07 Gender and Number. Except where otherwise clearly
indicated by context, the masculine and the neuter shall include the feminine
and the neuter, the singular shall include the plural, and vice-versa.
Section 8.08 Unfunded Plan. The Plan shall not be funded. The
Company may, but shall not be required to, set aside or earmark an amount
necessary to provide the Benefits specified herein (including the establishment
of trusts). In any event, no Covered Executive shall have any right to, or
interest in, any assets of the Company.
Section 8.09 Payments to Incompetent Persons, Etc. Any Benefit
payable to or for the Benefit of a minor, an incompetent person or other person
incapable of receipting therefor shall be deemed paid when paid to such person's
guardian or to the party providing or reasonably appearing to provide for the
care of such person, and such payment shall fully discharge the Company, the
Administrator and all other parties with respect thereto.
Section 8.10 Lost Payees. A Benefit shall be deemed forfeited if
the Administrator is unable to locate a Covered Executive to whom a Benefit is
due. Such Benefit shall be reinstated if application is made by the Covered
Executive for the forfeited Benefit while the Plan is in operation.
Section 8.11 Controlling Law and Nature of Plan. The Plan shall be
construed and enforced according to the laws of the Commonwealth of Pennsylvania
to the extent not preempted by Federal law. The Plan is not intended to be
included in the definitions of "employee pension benefit plan" and "pension
plan" set forth under Section 3(2) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"). Rather, the Plan is intended to meet the
descriptive requirements of a plan constituting a "severance pay plan" within
the meaning of regulations published by the Secretary of Labor at Title 29, Code
of Federal Regulations, Section 2510.3-2(b). Accordingly, the Benefits paid by
the Plan are not deferred compensation.
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APPENDIX A
GENERAL RELEASE
1. I, ____________________ (the "Executive"), for and in
consideration of (a) certain severance benefits to be paid and provided to me by
Air Products and Chemicals, Inc. (the "Company") under the Air Products and
Chemicals, Inc. Corporate Executive Committee Retention/Separation Program (the
"Plan") and (b) the Company's execution of a release in favor of the Executive,
on the date this General Release becomes irrevocable, substantially in the form
attached hereto as Annex 1, and conditioned upon such payments and provisions,
do hereby REMISE, RELEASE, AND FOREVER DISCHARGE Air Products and Chemicals,
Inc. (the "Company") and each of its past or present subsidiaries and
affiliates, its and their past or present officers, directors, shareholders,
employees and agents, their respective successors and assigns, heirs, executors
and administrators, the pension and employee benefit plans of the Company, or of
its past or present subsidiaries or affiliates, and the past or present
trustees, administrators, agents, or employees of the pension and employee
benefit plans (hereinafter collectively included within the term the "Company"),
acting in any capacity whatsoever, of and from any and all manner of actions and
causes of actions, suits, debts, claims and demands whatsoever in law or in
equity, which I ever had, now have, or hereafter may have, or which my heirs,
executors or administrators hereafter may have, by reason of any matter, cause
or thing whatsoever from the beginning of my employment with the Company to the
date of these presents and particularly, but without limitation of the foregoing
general terms, any claims arising from or relating in any way to my employment
relationship and the termination of my employment relationship with the Company,
including but not limited to, any claims which have been asserted, could have
been asserted, or could be asserted now or in the future under any federal,
state or local laws, including any claims under the Pennsylvania Human Relations
Act, 43 PA. C.S.A. Sections 951 et seq., as amended, the Rehabilitation Act of
1973, 29 USC Sections 701 et seq., as amended, Title VII of the Civil Rights Act
of 1964, 42 USC Sections 2000e et seq., as amended, the Civil Rights Act of
1991, 2 USC Sections 60/ et seq., as applicable, the Age Discrimination in
Employment Act of 1967, 29 USC Sections 621 et seq., as amended ("ADEA"), the
Americans with Disabilities Act, 29 USC Sections 706 et seq., and the Employee
Retirement Income Security Act of 1974, 29 USC Sections 301 et seq., as amended,
any contracts between the Company and me and any common law claims now or
hereafter recognized and all claims for counsel fees and costs; provided,
however, that this Release shall not apply to any entitlements under the terms
of the Plan or under any other plans or programs of the Company in which I
participated and under which I have accrued and become entitled to a benefit
other than under any Company separation or severance plan or programs.
Notwithstanding the foregoing, I understand that I shall be indemnified by the
Company as to any liability, cost or expense for which I would have been
indemnified during employment, in accordance with the Company's certificate of
incorporation or insurance coverages in force for employees of the Company
serving in executive capacities for actions taken on behalf of the Company
within the scope of my employment by the Company.
2. Subject to the limitations of paragraph 1 above, I
expressly waive all rights afforded by any statute which expressly limits the
effect of a release with respect to
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unknown claims. I understand the significance of this release of unknown claims
and the waiver of statutory protection against a release of unknown claims.
3. I hereby agree and recognize that my employment by
the Company was/will be permanently and irrevocably severed on
___________________, 20__ and the Company has no obligation, contractual or
otherwise to me to hire, rehire or reemploy me in the future. I acknowledge that
the terms of the Plan provide me with payments and benefits which are in
addition to any amounts to which I otherwise would have been entitled.
4. I hereby agree and acknowledge that the payments and
benefits provided by the Company are to bring about an amicable resolution of my
employment arrangements and are not to be construed as an admission of any
violation of any federal, state or local statute or regulation, or of any duty
owed by the Company and that the Plan was, and this Release is, executed
voluntarily to provide an amicable resolution of my employment relationship with
the Company.
5. I hereby acknowledge that nothing in this Release
shall prohibit or restrict me from: (i) making any disclosure of information
required by law; (ii) providing information to, or testifying or otherwise
assisting in any investigation or proceeding brought by, any federal regulatory
or law enforcement agency or legislative body, any self-regulatory organization,
or the Company's designated legal, compliance or human resources officers; or
(iii) filing, testifying, participating in or otherwise assisting in a
proceeding relating to an alleged violation of any federal, state or municipal
law relating to fraud, or any rule or regulation of the Securities and Exchange
Commission or any self-regulatory organization.
6. I hereby certify that I have read the terms of this
Release, that I have been advised by the Company to discuss it with my attorney,
that I have received the advice of counsel and that I understand its terms and
effects. I acknowledge, further, that I am executing this Release of my own
volition with a full understanding of its terms and effects and with the
intention of releasing all claims recited herein in exchange for the
consideration described in the Agreement, which I acknowledge is adequate and
satisfactory to me. None of the above named persons, nor their agents,
representatives, or attorneys have made any representations to me concerning the
terms or effects of this Release other than those contained herein.
7. I hereby acknowledge that I have been informed that I
have the right to consider this Release for a period of 21 days prior to
execution. I also understand that I have the right to revoke this Release for a
period of seven days following execution by giving written notice to the Company
at 7201 Hamilton Boulevard, Allentown Pennsylvania 18195-1501, Attention:
General Counsel.
8. I hereby further acknowledge that the terms of
Appendix B of the Plan continue to apply for the balance of the time periods
provided therein and that I will abide by and fully perform such obligations.
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Intending to be legally bound hereby, I execute the foregoing
Release this ___ day of _____________, 20 ___.
___________________________ ________________________
Witness Executive
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ANNEX 1
GENERAL RELEASE
1. Air Products and Chemicals, Inc. (the "Company") on
its behalf and on behalf of its subsidiaries and affiliates, their officers,
directors, partners, employees and agents, their respective successors and
assigns, heirs, executors and administrators (hereinafter collectively included
within the term "Company"), for and in consideration of ____________________
(the "Executive") executing the general release of claims against the Company
dated _______________ (the "Executive's Release of the Company"), and other good
and valuable consideration, does hereby REMISE, RELEASE, AND FOREVER DISCHARGE
the Executive, his assigns, heirs, executors and administrators (hereinafter
collectively included within the term "Executive"), acting in any capacity
whatsoever, of and from any and all manner of actions and causes of actions,
suits, debts, claims and demands whatsoever in law or in equity, which it ever
had, now have, or hereafter may have, by reason of any matter, cause or thing
whatsoever from the beginning of the Executive's employment with the Company to
the date of this Release arising from or relating in any way to the Executive's
employment relationship and the termination of his employment relationship with
the Company, including but not limited to, any claims which have been asserted,
could have been asserted, or could be asserted now or in the future under any
federal, state or local laws, any contracts between the Company and the
Executive, other than the Executive's Release of the Company, the Executive's
Noncompetition, Nonsolicitation, and Nondisparagement Agreement with the
Company, and the Employee Patent and Confidential Information Agreement entered
into by the Executive on _______________, and any common law claims now or
hereafter recognized and all claims for counsel fees and costs, but in no event
shall this release apply to any action attributable to a criminal act or to an
action outside the scope of the Executive's employment.
2. Subject to the limitations of paragraph 1 above, the
Company expressly waives all rights afforded by any statute which expressly
limits the effect of a release with respect to unknown claims. The Company
understands the significance of this release of unknown claims and the waiver of
statutory protection against a release of unknown claims.
3. The Company hereby certifies that it has been advised
by counsel in the preparation and review of this Release.
Intending to be legally bound hereby, Air Products and
Chemicals, Inc. executes the foregoing Release this ____ day of ____________,
20__.
_______________________________ By:________________________
Witness
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APPENDIX B
NONCOMPETITION, NONSOLICITATION, AND NONDISPARAGEMENT AGREEMENT
I, ____________________ (the "Executive"), for and in
consideration of (a) certain severance benefits to be paid and provided to me by
Air Products and Chemicals, Inc. (the "Company") under the Air Products and
Chemicals, Inc. Corporate Executive Committee Retention/Separation Program (the
"Plan"), and (b) the Company's execution of a release in favor of the Executive,
I, the Executive, hereby covenant and agree as follows:
1. The Executive acknowledges that the Company is
generally engaged in business throughout the world. During the Executive's
employment by the Company and for two years after the Executive's Employment
Termination Date (as defined in the Plan), the Executive agrees that he will
not, unless acting with the prior written consent of the Company, directly or
indirectly, own, manage, control, or participate in the ownership, management or
control of, or be employed or engaged by, or otherwise affiliated or associated
with, as an officer, director, employee, consultant, independent contractor or
otherwise, any other corporation, partnership, proprietorship, firm,
association, or other business entity, or otherwise engage in any business which
is engaged in any manner anywhere in any business which, as of the Employment
Termination Date, is engaged in by the Company, has been reviewed with the Board
for development to be owned or managed by the Company, and/or has been divested
by the Company but as to which the Company has an obligation to refrain from
involvement, but only for so long as such restriction applies to the Company;
provided, however, that the ownership of not more than 5% of the equity of a
publicly traded entity shall not be deemed to be a violation of this paragraph.
2. The Executive also agrees that he will not, directly
or indirectly, during the period described in paragraph (1), induce any person
who is an employee, officer, director, or agent of the Company, to terminate
such relationship, or employ, assist in employing or otherwise be associated in
business with any present or former employee or officer of the Company,
including without limitation those who commence such positions with the Company
after the Employment Termination Date.
3. For the purposes of this Agreement, the term
"Company" shall be deemed to include Air Products and the subsidiaries and
affiliates of Air Products.
4. The Executive acknowledges and agrees that the
restrictions contained in this Agreement are reasonable and necessary to protect
and preserve the legitimate interests, properties, goodwill and business of the
Company, that the Company would not have entered into this Agreement in the
absence of such restrictions and that irreparable injury will be suffered by the
Company should the Executive breach the provisions of this Section. The
Executive represents and acknowledges that (i) the Executive has been advised by
the Company to consult the Executive's own legal counsel in respect of this
Agreement, (ii) the Executive has consulted with and been advised by his own
counsel in respect of this Agreement, and (iii) the Executive
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has had full opportunity, prior to execution of this Agreement, to review
thoroughly this Agreement with the Executive's counsel.
5. The Executive further acknowledges and agrees that a
breach of the restrictions in this Agreement will not be adequately compensated
by monetary damages. The Executive agrees that the Company shall be entitled to
(i) preliminary and permanent injunctive relief, without the necessity of
proving actual damages, or posting of a bond, (ii) an equitable accounting of
all earnings, profits and other benefits arising from any violation of this
Agreement, and (iii) enforce the terms, including requiring forfeitures, under
other plans, programs and agreements under which the Executive has been granted
a benefit contingent on a covenant similar to those contained in this Agreement,
which rights shall be cumulative and in addition to any other rights or remedies
to which the Company may be entitled. In the event that the provisions of this
Agreement should ever be adjudicated to exceed the limitations permitted by
applicable law in any jurisdiction, it is the intention of the parties that the
provision shall be amended to the extent of the maximum limitations permitted by
applicable law, that such amendment shall apply only within the jurisdiction of
the court that made such adjudication and that the provision otherwise be
enforced to the maximum extent permitted by law.
6. If the Executive breaches his obligations under this
Agreement, he agrees that suit may be brought, and that he consents to personal
jurisdiction, in the United States District Court for the Eastern District of
Pennsylvania, or if such court does not have jurisdiction or will not accept
jurisdiction, in any court of general jurisdiction in Allentown, Pennsylvania;
consents to the non-exclusive jurisdiction of any such court in any such suit,
action or proceeding; and waives any objection which he may have to the laying
of venue of any such suit, action or proceeding in any such court. The Executive
also irrevocably and unconditionally consents to the service of any process,
pleadings, notices or other papers.
7. Executive further agrees, covenants, and promises
that he will not in any way communicate the terms of this Agreement to any
person other than his immediate family and his attorney and financial consultant
or when necessary to advise a third party of his obligations under this
Agreement. Notwithstanding the foregoing, the Company and Executive also agree
that for a period of two years following the Employment Termination Date,
Executive will provide and that at all times after the date hereof the Company
may similarly provide, with prior written notice to Executive, a copy of this
Agreement to any business or enterprise (i) which Executive may directly or
indirectly own, manage, operate, finance, join, control or of which he may
participate in the ownership, management, operation, financing, or control, or
(ii) with which Executive may be connected as an officer, director, employee,
partner, principal, agent, representative, consultant, or otherwise, or in
connection with which Executive may use or permit to be used Executive's name.
Executive agrees not to disparage the name, business reputation, or business
practices of the Company or its subsidiaries or affiliates, or its or their
officers, employees, or directors, and the Company agrees not to disparage the
name or business reputation of Executive.
8. The Executive hereby expressly acknowledges and
agrees that (i) the provisions of the Employee Patent and Confidential
Information Agreement entered into by him on _______________, shall continue to
apply in accordance with its terms, and (ii) the
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provisions of the Executive's outstanding incentive award agreements granted
under the Company's Long-Term Incentive Plan, as defined in the Plan, shall
continue to apply in accordance with their terms except as otherwise provided in
Section 3.02 of the Plan and except that, for purposes of interpreting the
provisions of the first indented clause of Section 2 of the "Conditions"(as
defined in, and as set forth in Exhibit A to, each of the Executive's award
agreements under the Long-Term Incentive Plan), "in Competition with the
Company" shall be construed as provided in this Agreement.
9. No failure or delay on the part of the Company in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power preclude any
further or other exercise thereof or the exercise of any other right or power
hereunder. No modification or waiver of any provision of this Agreement or
consent to any departure by any party therefrom shall in any event be effective
until the same shall be in writing and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice to or demand on any party in any case shall entitle such party to any
other or further notice or demand in similar or other circumstances.
10. This Agreement shall be construed in accordance with
the laws of the Commonwealth of Pennsylvania without giving effect to its
conflict of laws provisions. This Agreement shall extend to and enure to the
benefit of the respective successors and assigns of the Company.
Intending to be legally bound hereby, I execute the
Noncompetition, Nonsolicitation, and Nondisparagement Agreement this ___ day of
_____________, 20 ___.
___________________________ _________________________
Witness Executive
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