Document/ExhibitDescriptionPagesSize
1: 10-K Annual Report HTML 2.48M
2: EX-10.19 Material Contract HTML 75K
3: EX-21.1 Subsidiaries List HTML 85K
4: EX-23.1 Consent of Expert or Counsel HTML 34K
5: EX-24.1 Power of Attorney HTML 40K
9: EX-97.1 Clawback Policy re: Recovery of Erroneously HTML 66K
Awarded Compensation
6: EX-31.1 Certification -- §302 - SOA'02 HTML 39K
7: EX-31.2 Certification -- §302 - SOA'02 HTML 39K
8: EX-32.1 Certification -- §906 - SOA'02 HTML 38K
15: R1 Cover HTML 101K
16: R2 Audit Information HTML 40K
17: R3 Consolidated Statements of Operations HTML 159K
18: R4 Consolidated Statements of Comprehensive Income HTML 97K
19: R5 Consolidated Statements of Comprehensive Income HTML 55K
(Parenthetical)
20: R6 Consolidated Balance Sheets HTML 165K
21: R7 Consolidated Balance Sheets (Parenthetical) HTML 45K
22: R8 Consolidated Statements of Cash Flows HTML 149K
23: R9 Consolidated Statement of Changes in Stockholders? HTML 125K
Equity
24: R10 Consolidated Statement of Changes in Stockholders? HTML 37K
Equity (Parenthetical)
25: R11 Background and Basis of Presentation HTML 45K
26: R12 Summary of Significant Accounting Policies HTML 80K
27: R13 Recent Accounting Pronouncements HTML 48K
28: R14 Acquisitions HTML 43K
29: R15 Inventories HTML 44K
30: R16 Property, Plant and Equipment, Net HTML 49K
31: R17 Goodwill and Intangible Assets HTML 91K
32: R18 Long-Term Compensation Plans HTML 81K
33: R19 Pension, Post-Retirement and Post-Employment Plans HTML 263K
34: R20 Income Taxes HTML 149K
35: R21 Debt HTML 68K
36: R22 Financial Instruments HTML 81K
37: R23 Stockholders? Equity HTML 43K
38: R24 Accumulated Other Comprehensive (Loss) Income HTML 70K
39: R25 Earnings Per Share HTML 70K
40: R26 Leases HTML 66K
41: R27 Contingencies, Environmental and Legal Matters HTML 43K
42: R28 Related Party Transactions HTML 40K
43: R29 Restructuring HTML 48K
44: R30 Other (Expense) Income, Net HTML 49K
45: R31 Accrued Expenses and Other Current Liabilities HTML 47K
46: R32 Segment Information HTML 119K
47: R33 Valuation and Qualifying Accounts and Reserves HTML 57K
48: R34 Insider Trading Arrangements HTML 41K
49: R35 Summary of Significant Accounting Policies HTML 142K
(Policies)
50: R36 Summary of Significant Accounting Policies HTML 54K
(Tables)
51: R37 Inventories (Tables) HTML 45K
52: R38 Property, Plant and Equipment, Net (Tables) HTML 54K
53: R39 Goodwill and Intangible Assets (Tables) HTML 95K
54: R40 Long-Term Compensation Plans (Tables) HTML 83K
55: R41 Pension, Post-Retirement and Post-Employment Plans HTML 285K
(Tables)
56: R42 Income Taxes (Tables) HTML 152K
57: R43 Debt (Tables) HTML 59K
58: R44 Financial Instruments (Tables) HTML 67K
59: R45 Accumulated Other Comprehensive (Loss) Income HTML 70K
(Tables)
60: R46 Earnings Per Share (Tables) HTML 72K
61: R47 Leases (Tables) HTML 70K
62: R48 Restructuring (Tables) HTML 46K
63: R49 Other (Expense) Income, Net (Tables) HTML 48K
64: R50 Accrued Expenses and Other Current Liabilities HTML 47K
(Tables)
65: R51 Segment Information (Tables) HTML 118K
66: R52 Background and Basis of Presentation (Details) HTML 39K
67: R53 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES - HTML 51K
Property, Plant and Equipment, Net (Details)
68: R54 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES - HTML 52K
Finite-Lived Intangible Assets (Details)
69: R55 ACQUISITIONS - Narratives (Details) HTML 90K
70: R56 INVENTORIES - Schedule of Major Components of HTML 45K
Inventory (Details)
71: R57 PROPERTY, PLANT AND EQUIPMENT, NET - Major HTML 52K
Components of Property, Plant, and Equipment, net
(Details)
72: R58 PROPERTY, PLANT AND EQUIPMENT, NET - Narratives HTML 42K
(Details)
73: R59 GOODWILL AND INTANGIBLE ASSETS - Changes in the HTML 58K
Carrying Amount of Goodwill (Details)
74: R60 GOODWILL AND INTANGIBLE ASSETS - Narratives HTML 58K
(Details)
75: R61 GOODWILL AND INTANGIBLE ASSETS - Intangible Assets HTML 64K
Subject to Amortization (Details)
76: R62 GOODWILL AND INTANGIBLE ASSETS - Estimated Future HTML 46K
Amortization Expense (Details)
77: R63 LONG-TERM COMPENSATION PLANS - Narrative (Details) HTML 95K
78: R64 LONG-TERM COMPENSATION PLANS - Schedule of HTML 55K
Compensation Expense (Details)
79: R65 LONG-TERM COMPENSATION PLANS - Activity in Payment HTML 70K
Awards (Details)
80: R66 LONG-TERM COMPENSATION PLANS - Equity Classified HTML 52K
RSUs (Details)
81: R67 LONG-TERM COMPENSATION PLANS - Schedule Equity HTML 62K
Classified Share Based Payment RSUs (Details)
82: R68 PENSION, POST-RETIREMENT AND POST-EMPLOYMENT PLANS HTML 38K
- Narratives (Details)
83: R69 PENSION, POST-RETIREMENT AND POST-EMPLOYMENT PLANS HTML 57K
- Domestic Defined Benefit Pension Plan (Details)
84: R70 PENSION, POST-RETIREMENT AND POST-EMPLOYMENT PLANS HTML 39K
- Supplemental Executive Retirement Plans
(Details)
85: R71 PENSION, POST-RETIREMENT AND POST-EMPLOYMENT PLANS HTML 47K
- Foreign Pension Plans (Details)
86: R72 PENSION, POST-RETIREMENT AND POST-EMPLOYMENT PLANS HTML 53K
- Domestic Defined Benefit Post-Retirement Medical
and Dental Plan (Details)
87: R73 PENSION, POST-RETIREMENT AND POST-EMPLOYMENT PLANS HTML 68K
- Components of Net Periodic Benefit Cost
(Details)
88: R74 PENSION, POST-RETIREMENT AND POST-EMPLOYMENT PLANS HTML 54K
- Key Assumptions Used to Determine Net Periodic
Benefit Expense (Details)
89: R75 PENSION, POST-RETIREMENT AND POST-EMPLOYMENT PLANS HTML 129K
- Changes in Funded Status of Pension and SERP
Plans (Details)
90: R76 PENSION, POST-RETIREMENT AND POST-EMPLOYMENT PLANS HTML 50K
- Key Assumptions Used to Determine Benefit
Obligations (Details)
91: R77 PENSION, POST-RETIREMENT AND POST-EMPLOYMENT PLANS HTML 56K
- Amounts Recognized in Balance Sheet and
Accumulated Other Comprehensive Loss (Details)
92: R78 PENSION, POST-RETIREMENT AND POST-EMPLOYMENT PLANS HTML 59K
- Fair Value of Plan Assets by Asset Category
(Details)
93: R79 PENSION, POST-RETIREMENT AND POST-EMPLOYMENT PLANS HTML 65K
- Expected Future Benefit Payments (Details)
94: R80 INCOME TAXES - Income (Loss) Before Income Taxes HTML 44K
and Non-Controlling Interests (Details)
95: R81 INCOME TAXES - Income Tax Expense (Details) HTML 63K
96: R82 INCOME TAXES - Income Tax Expense Rate HTML 72K
Reconciliation (Details)
97: R83 INCOME TAXES - Narratives (Details) HTML 85K
98: R84 INCOME TAXES - Components of Deferred Income Taxes HTML 78K
(Details)
99: R85 INCOME TAXES - Unrecognized Tax Benefits (Details) HTML 54K
100: R86 DEBT - Schedule of Debt and Finance Lease HTML 72K
Obligations (Details)
101: R87 DEBT - Minimum Future Payments on Long-term Debt HTML 55K
and Capital Leases (Details)
102: R88 DEBT - Credit Agreement (Details) HTML 70K
103: R89 DEBT - Guarantees, Covenants and Events of Default HTML 52K
(Details)
104: R90 DEBT - Senior Notes (Details) HTML 45K
105: R91 DEBT - Lines of Credit and Other Debt Facilities HTML 55K
(Details)
106: R92 FINANCIAL INSTRUMENTS - Derivatives and Hedging HTML 95K
(Details)
107: R93 FINANCIAL INSTRUMENTS - Schedule of Fair Value HTML 84K
Measurements (Details)
108: R94 FINANCIAL INSTRUMENTS - Narratives (Details) HTML 49K
109: R95 STOCKHOLDERS? EQUITY - Repurchase of Common Stock HTML 52K
(Details)
110: R96 Accumulated Other Comprehensive (LOSS) INCOME - HTML 78K
Changes in Accumulated Other Comprehensive (Loss)
Income (Details)
111: R97 EARNINGS PER SHARE - Computation of Weighted HTML 74K
Average Shares Outstanding (Details)
112: R98 EARNINGS PER SHARE - Anti-dilutive Securities HTML 41K
(Details)
113: R99 LEASES - Assets and Liabilities (Details) HTML 51K
114: R100 LEASES - Narratives (Details) HTML 37K
115: R101 LEASES - Supplemental Cash Flow Information for HTML 45K
Operating Leases (Details)
116: R102 LEASES - Maturities of Operating Lease Liabilities HTML 54K
(Details)
117: R103 Contingencies, Environmental and Legal Matters HTML 41K
(Details)
118: R104 Related Party Transactions (Details) HTML 44K
119: R105 Restructuring (Details) HTML 45K
120: R106 Other (Expense) Income, Net (Details) HTML 45K
121: R107 Accrued Expenses and Other Current Liabilities HTML 50K
(Details)
122: R108 SEGMENT INFORMATION - Narratives (Details) HTML 37K
123: R109 SEGMENT INFORMATION - Financial Information HTML 62K
Regarding Each Reportable Segment (Details)
124: R110 SEGMENT INFORMATION - Reconciliation of Adjusted HTML 89K
EBITDA to Net Loss (Details)
125: R111 SEGMENT INFORMATION - Net Sales by Major Country HTML 47K
(Details)
126: R112 SEGMENT INFORMATION - Long-lived Assets by HTML 43K
Geographic Area (Details)
127: R113 Valuation and Qualifying Accounts and Reserves HTML 47K
(Details)
129: XML IDEA XML File -- Filing Summary XML 244K
132: XML XBRL Instance -- esi-20231231_htm XML 3.18M
128: EXCEL IDEA Workbook of Financial Report Info XLSX 236K
11: EX-101.CAL XBRL Calculations -- esi-20231231_cal XML 328K
12: EX-101.DEF XBRL Definitions -- esi-20231231_def XML 1.05M
13: EX-101.LAB XBRL Labels -- esi-20231231_lab XML 2.73M
14: EX-101.PRE XBRL Presentations -- esi-20231231_pre XML 1.77M
10: EX-101.SCH XBRL Schema -- esi-20231231 XSD 246K
130: JSON XBRL Instance as JSON Data -- MetaLinks 799± 1.21M
131: ZIP XBRL Zipped Folder -- 0001590714-24-000054-xbrl Zip 1.17M
This letter agreement and release (the “Agreement”) confirms the agreement entered
into between you and your Employer regarding the termination of your employment effective December 31, 2023 (“Termination Date”) and explains the package of separation pay and benefits that has been specially developed for you in consideration of a fully bargained for release and settlement of any and all claims that you have presently, may have or have had in the past arising from your employment with and termination of your employment from the Employer up to and including the date you execute this Agreement. Additionally, pursuant to this Agreement, you are releasing all claims against the Company. For purposes of this Agreement, the term “Employer” shall mean Element Solutions Inc. The term “Company” shall mean the Employer and any of its direct or indirect parent or subsidiary corporations or companies, and
any of its or their affiliates, divisions, and business units. “Effective Date” is defined in Section 15.
1. CONSIDERATION IN SETTLEMENT. The consideration provided to you under this Agreement is not required under the Employer's policies or otherwise, except as expressly noted, and you acknowledge that you know of no circumstances other than you agreeing to the terms of this Agreement which would require the Employer to provide such consideration. You acknowledge that no representations of any kind have been made by the Employer to induce your execution of this Agreement and that the only representations made to you in order to obtain your consent to this Agreement are as stated herein. The fact that the Employer is offering to make these payments to you on these terms and conditions imposes no obligation whatsoever on the Employer or the
Company to offer to pay any amounts to any employee whose employment is terminated with the Employer or the Company now or in the future. Accordingly, if you execute (and do not revoke) this Agreement you will receive:
(a) SEVERANCE PAY. You will receive severance pay totaling $439,192 (“Severance Pay”), less applicable withholdings, deductions and offsets, if any, in regular payroll payment(s) over a period of twelve (12) months (the “Severance Period”) based upon your base salary in effect at the Termination Date. Notwithstanding the foregoing, the Employer may at its option, at any time while any Severance Pay owed hereunder are still outstanding, pay to the Employee the remaining balance of such outstanding Severance Pay in a lump sum. The Severance
Pay will be payable in accordance with the Company’s normal payroll procedures starting on the later of your Termination Date and the Effective Date subject to the Offset Section below.
Notwithstanding the foregoing, if subsequent to the commencement of the Severance Period, the Employer discovers that you committed acts while employed with the Employer which constitutes “Cause” (as defined below), the Employer may cease further payments of Severance Pay and other consideration as provided for in this Section and may require you to reimburse the Employer for all
1
payments of Severance Pay and
other consideration previously made. For purposes of this Agreement, “Cause” shall mean (i) breach by you of any material provision of any written agreement you may have with the Company or violation in any material respect of any written policy of the Company; (ii) gross negligence or willful misconduct by you in connection with the performance of your duties, or your willful refusal to perform any of your duties or responsibilities; or (iii) fraud, criminal conduct or embezzlement by you.
(b) CONTINUATION OF MEDICAL AND/OR DENTAL INSURANCE BENEFITS. If you elect to continue coverage pursuant to the Employer’s medical and/or dental insurance benefit plans as in effect and
amended from time to time, pursuant to the provisions of COBRA as described in (c) below, then, subject to the other terms and conditions of this paragraph, your continued participation (for you and your eligible beneficiaries) will be at the contribution level in effect for active employees until the earlier of (i) twelve (12) months after the Termination Date, (ii) you become eligible for Medicare, or (iii) you become eligible for coverage under medical and/or dental insurance benefit plans, as the case may be, of another employer through future employment. You must immediately notify the Employer when you become eligible for Medicare or for coverage under medical and/or dental insurance benefits plans of another employer through your future employment.
(c) COBRA. To the extent provided by the federal Consolidated Omnibus Budget
Reconciliation Act of 1985 law, or if applicable, state insurance laws (collectively “COBRA”), and by the Employer’s current group health insurance policies, and subject to the provisions of paragraph (b) above, you will be eligible to continue your group health insurance benefits after the Termination Date at your own expense for up to 18 months at a monthly premium equal to 102% of actual plan cost. Within the timing required by law, you will be provided a separate notice describing your COBRA rights and obligations with respect to continued group health insurance under the applicable state and/or federal insurance laws. Such continuation of coverage under the Severance Period will count as total time covered under COBRA. Specific costs and details will be provided to you on a timely basis.
(d) LONG-TERM INCENTIVE EQUITY AWARDS. During
your employment, you were a participant in the Element Solutions Inc long term incentive program (“LTI”), pursuant to which you received (i) a Performance-Based Restricted Stock Award Agreement dated February 17, 2021 (“Award #1”), (ii) a Restricted Stock Unit Agreement dated February 17, 2021 (“Award #2”), (iii) a Performance-Based Restricted Stock Award Agreement dated February 15, 2022 (“Award #3”), (iv) Restricted Stock Unit Agreement dated February 15, 2022 (“Award #4”), and (v) a Restricted Stock Unit Agreement dated February 13, 2023 (“Award #5”), in each case representing LTI awards under the Element Solutions Inc Amended and Restated 2013 Incentive Compensation Plan (the
“Plan”). (Award #1, Award #2, Award #3, Award #4 and Award #5 are referred to herein each as an “Award” and collectively as the “Awards”.) Subject to achieving the performance vesting criteria set forth in Award #1, you will continue to be eligible to receive the vesting of Award #1, if, as and when such Award would otherwise vest for full-time, actively employed, similarly situated participants in the Plan generally, even though you will not be a full-time, active employee on the date the restrictions would otherwise lapse. You will be receive the vesting of 50% of Award #3 (i.e. a number of shares equal to achieving 50% of target from Award #3 (but not the “maximum” or “stretch” level of achievement)), as and when the 2022 LTI awards would otherwise vest for full-time, actively employed, similarly situated participants in the Plan generally, even though you will not be a full-time, active employee on the date the restrictions would
otherwise lapse. Subject to achieving the respective time vesting criteria set forth in Award #2, Award #4, and Award #5, you will continue to be eligible to receive the vesting of the tranches of such Awards that would otherwise vest in the ordinary course in February 2024, if, as and when such Awards otherwise would vest if you were actively employed, even though you will not be a full-time, active employee on the date the Awards would otherwise vest. The Awards will otherwise continue to be governed by and subject to the terms and conditions of the applicable award agreement and the Plan. Any remaining unvested equity awards not addressed in this paragraph will be forfeited upon termination.
2
(e) INCENTIVE COMPENSATION. You
will be eligible to receive an annual incentive cash bonus for 2023 equal to 65% of your target bonus opportunity pursuant to the Employer’s 2023 Annual Incentive Program, in lieu of any other bonus you would otherwise have received for 2023, at the time any such bonuses are paid to active employees of the Employer in the first quarter of 2024. This payment is taxable compensation and subject to any applicable withholding taxes.
(f) NO MITIGATION. Nothing in this Section 1 or any other provision of this Agreement shall be deemed to require you to mitigate the cost of severance pay and benefits provided hereunder.
2. OTHER BENEFIT PLANS. Effective as of the Termination Date, you acknowledge that you are no longer eligible to participate
in any of the Employer’s or the Company’s other benefit plans including, but not limited to the Employer’s 401(k) savings plan (the "401(k) Plan").
3. VACATION AND PAID TIME OFF (“PTO”). As of the Termination Date, no further vacation or PTO shall accrue. An amount equal to 21 days representing your remaining accrued and unused vacation based on your base salary in effect at the time of your termination or, if applicable, any accrued and unused PTO, will be paid in a lump sum on the next pay date following your Termination Date, except as otherwise required by applicable state law, subject to standard payroll deductions and withholdings. This amount represents payment to you in lieu of any and all accrued
but unused vacation or PTO time you may still have. You will receive these payments regardless of whether you enter into this Agreement.
4. ELECTION. If you decide not to execute this Agreement, you may elect to receive the Severance Pay and/or benefits defined in any employment contract or other written agreement between you and the Employer which may be in effect on your Termination Date and covers your separation with the Employer, if any. The acceptance of Severance Pay and benefits available under this Agreement shall constitute a waiver of any Severance Pay you would have been entitled to under any other agreement.
5. RETURN OF EMPLOYER AND COMPANY PROPERTY. You
acknowledge that prior to and as a condition of your receipt of any Severance Pay and/or consideration as described in this Agreement, you will return all Employer and Company documents (and all copies thereof) and other property, which is in your possession. Such property includes, but is not limited to office keys, credit cards, computers, computer discs and software, printers, fax machines, cellular phones, all documents, files and other information of the Employer and Company whether or not the property meets the definition of “Confidential Information” or “Trade Secrets” under any applicable policy of the Company, agreement between you and the Company or applicable laws, and other related Employer and Company books, equipment or records. Notwithstanding anything to the contrary
in this Section 5, you will be permitted to keep (i) your current Company-provided notebook computer, together with power cord and standard factory-included attachments (but not separate monitors or docking stations), and (ii) your current Company-provided i-Phone mobile telephone device; provided, however, after the Termination Date you will be solely responsible for paying for any service and maintenance contracts and obtaining any licenses for software used on the computer and/or mobile telephone device, and the Company will not provide any service or pay for any continued use of such computer or mobile device. You acknowledge that you will not have access to any Company-provided software from and after the Termination Date, and you agree to allow the
Company to delete any Company files and software on any Company-provided computer and mobile device.
6. REIMBURSEMENT OF EXPENSES. The Employer shall reimburse you for any and all business expenses for which you are entitled to reimbursement under the Employer’s expense reimbursement policies and procedures in effect on the date hereof. All expenses for reimbursement shall
3
be submitted within thirty (30) days from the date of this Agreement, and the Employer shall process such expenses promptly. Any expenses submitted after this thirty (30) day period will not be paid.
7. NON-DUPLICATION
OF BENEFITS. The amount of severance payments hereunder shall be reduced on a dollar for dollar basis by any disability, severance, separation or termination pay benefits that the Employer pays or is required to pay you through insurance or otherwise under any plan or contract or under any federal or state law; provided, however, that the severance payment shall never be less than two (2) weeks' base salary, and such amount is acknowledged to be full and adequate consideration for this Agreement.
8. GENERAL RELEASE OF CLAIMS. You agree to release and hold harmless (on behalf of yourself and your family, heirs, executors, successors and assigns) now and forever, the Employer and the
Company and any of the foregoing entities’ past, present or future parent and subsidiary corporations, affiliates, divisions, successors and assigns (whether or not incorporated) and any of its past, present or future employees, agents, assigns, officers, directors, shareholders and attorneys whether acting in their individual or representative capacity (the “Released Parties”) from and waive any claim that you have presently, may have or have had in the past, known or unknown, against the Released Parties upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world through the date you execute this Agreement, including, without limitation, all claims arising from your employment with, or termination of employment from, the Employer and the Company, or otherwise, including but not limited to, any and all claims brought or that could be brought
pursuant to or under any federal, state or local statute (including, without limitation, the Age Discrimination in Employment Act of 1967, the 1990 Older Workers Benefit Protection Act, Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, the Equal Pay Act, the Americans with Disabilities Act of 1990, the Employee Retirement Income Security Act of 1974, the Family and Medical Leave Act of 1993, the Fair Labor Standards Act, the Worker Adjustment and Retraining Notification Act, as well as any state or local equivalents of any of the foregoing, including, without limitation, the Connecticut Fair Employment Practices Act, the Connecticut Minimum Wage Act, the Connecticut Family and Medical Leave Act, the Connecticut Paid Sick Leave Act and Conn. Gen. Stat. §31-290a, and all other applicable statutes regulating the terms and conditions of your employment), and all other applicable statutes regulating the terms and conditions of your employment),
any regulation or ordinance, under the common law or in equity (including any claims for wrongful discharge, slander, libel or otherwise), or under any policy, agreement, understanding or promise, written or oral, formal or informal, between the Released Parties and you, including, without limitation, any claim you might have for severance, termination or severance pay pursuant to the Employer's severance policies or practices as from time to time in effect, or otherwise (the “Released Claims”).
You expressly waive and relinquish all rights and benefits under any section of any law or legal principle of similar effect in any other jurisdiction with respect to your release of any unknown or unsuspected claims herein.
Notwithstanding the foregoing, the following are not included in the Released Claims (the “Excluded Claims”):
(i) any rights or claims which are not waivable as a matter of law; and (ii) any claims for breach of this Agreement. You represent and warrant that, other than the Excluded Claims, you are not aware of any claims you have or might have against any of the Released Parties that are not included in the Released Claims.
9. NO PENDING ACTION/COVENANT NOT TO SUE. Except to enforce the terms of this Agreement and as provided below, you agree and covenant not to file any suit or other legal action against the Released Parties with regard to any of the Released Claims. You further represent and warrant that as of the date you sign this Agreement no suits, complaints, charges, or other proceedings are
4
pending
against the Released Parties before any court, administrative agency, commission or other forum relating directly or indirectly to the Released Claims.
NOTHING IN THIS AGREEMENT IS INTENDED IN ANY WAY TO LIMIT YOUR RIGHT OR ABILITY TO INITIATE OR PARTICIPATE IN ANY INVESTIGATION OR PROCEEDING CONDUCTED BY ANY FEDERAL, STATE OR LOCAL AGENCY, INCLUDING THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (“EEOC”). NOTWITHSTANDING THE FOREGOING, YOU AGREE TO WAIVE YOUR RIGHT TO RECOVER MONETARY DAMAGES IN ANY SUIT, COMPLAINT, CHARGE OR OTHER PROCEEDING FILED BY YOU OR ANYONE ELSE ON YOUR BEHALF.
10. ADEA WAIVER. You acknowledge that you are knowingly and voluntarily waiving and releasing any rights you may have under the ADEA (the “ADEA Waiver”), and that the consideration given for this ADEA Waiver is in addition to
anything of value to which you are already entitled. You further acknowledge that you have been advised, as required by the ADEA, that: (i) your ADEA Waiver does not apply to any rights or claims that may arise after the date that you sign this Agreement; (ii) you should consult with an attorney prior to signing this Agreement (although you may choose voluntarily not to do so); (iii) you have twenty-one (21) days to consider this Agreement (although you may choose voluntarily to sign it earlier); (iv) you have seven (7) days following the date you sign this Agreement to revoke the ADEA Waiver (by providing written notice of your revocation to the Company; and (v) this ADEA Waiver will not be effective until the date upon which the revocation period has expired, which will be the eighth day after the date that this Agreement is signed by you provided that you do not revoke it (the
“Effective Date’). You further acknowledge that the Employer has provided you with the ADEA Disclosure information (under Title 29 USC Section 626(f)(1)(H)).
11. FUTURE ASSISTANCE. Upon request, you agree to provide such assistance and cooperation in any matter relating to your expertise or experience as the Employer may reasonably request including your attendance and truthful testimony where deemed appropriate by the Employer, to the Employer's defense or prosecution of any existing or future claims or litigations of which the Employer identifies you as potentially having knowledge. The Employer shall pay you reasonable costs and expenses in connection therewith.
12. RIGHT TO COUNSEL. The Employer hereby advises you that you should
consult with an attorney prior to execution of this Agreement. You acknowledge that you understand it is in your best interest to have this document reviewed by an attorney of your own choosing and at your own expense, and you hereby acknowledge that you have been afforded not less than twenty-one (21) days during which to consider this Agreement and to have it reviewed by your attorney. To the extent that you decide to execute this Agreement prior to the expiration of the twenty-one (21) day review period, such execution shall constitute a voluntary and knowing valid waiver of such review period.
13. FREE WILL. You are entering into this Agreement of your own free will and without coercion, intimidation or threat of retaliation. You acknowledge and agree that the Employer and/or the
Company have not exerted any undue pressure or influence on you in this regard. You acknowledge that you have had reasonable time to determine whether entering into this Agreement is in your best interest and you have read and fully understand the terms set forth in this Agreement. You understand that if you request additional time to review the provisions of this Agreement, a reasonable extension of time will be granted.
14. BREACH OF AGREEMENT/PENALTIES. If you initiate or participate in any lawsuit or other legal action in violation of this Agreement, or if you fail to abide by any of the terms of this Agreement, except to the extent prohibited by law, the Employer may reclaim any amounts paid under this Agreement, without waiving the release granted herein, and terminate any benefit or payments that
5
are
due under the Agreement, in addition to any other remedies it may have. In addition, you shall pay the Employer all of its actual attorneys' fees and costs incurred resulting from, or incident to, such violation and you agree to pay such fees and costs within thirty (30) days of the Employer's written demand.
15. REVOCATION AND EFFECTIVE DATE. This Agreement may be revoked by you within the seven (7) days after the date on which you sign this Agreement and it is received by the Employer. You understand that this Agreement shall not become binding or enforceable until this seven (7) day period has expired without you having so revoked. This Agreement shall become effective on the eighth (8th) day following your signing of this Agreement (the "Effective Date") provided that you have not revoked the Agreement prior to such date. Any such revocation
must be made in a signed letter executed by you and received by the Employer at the following address no later than 5 p.m. Eastern Time on the seventh day after you have executed this Agreement: Element Solutions Inc, 500 East Broward Blvd - Suite 1860, Fort Lauderdale, FL33394, Attention: General Counsel. You understand that if you revoke this Agreement, this Agreement will not be effective or enforceable by you and you will not be entitled to any payments or benefits hereunder. You understand and agree that you will not receive the payments and benefits set forth in this Agreement, except for your execution of this Agreement and the fulfillment of your promises set forth herein. Any notice
to be given under this Agreement (other than the revocation, if any, set forth above) shall be given in writing and delivered either personally or sent by certified mail to the Employer c/o General Counsel at the above address and to you at your address in the Employer's records or such other address as you may provide to Employer in writing in advance in accordance with this Section 15.
16. CONFIDENTIALITY. In addition to any agreement related to trade secrets, confidential information and/or work products previously executed by you, including, you will not at any time divulge to any other entity or person any information acquired by you concerning the financial affairs of the Employer or the Company, its affiliates and subsidiaries,
its officers, directors, employees and/or shareholders or the Employer’s or the Company’s business processes or methods or research, development or marketing programs or plans, any other of its trade secrets, any information regarding personal matters of any directors, officers, shareholders, employees or agents of the Employer or the Company or their respective family members, any information concerning this Agreement or the terms thereof or any information concerning the circumstances of your employment with and the termination of your employment from the Employer or the Company, or any information regarding discussions related to any of the foregoing or make, write, publish, produce or in any way participate
in placing into the public domain any statement, opinion or information with respect to any of the foregoing or which reflects adversely upon or would reasonably impair the reputation or best interests of the Employer or the Company or any of its directors, officers, employees or agents or their respective family members. Confidential information does not include (i) information which is required to be disclosed by court order, subpoena or other judicial process, (ii) information regarding your job responsibilities during your employment with the Employer to prospective employers in connection with an application for employment, (iii) information regarding the financial terms of this Agreement to your spouse or your tax advisor for purposes of obtaining tax advice provided that such persons are made aware of and agree to comply with the confidentiality obligation, or (iv) information
which is necessary to be disclosed to your attorney to determine whether you should enter into this Agreement.
The foregoing prohibitions shall include, without limitation, directly or indirectly publishing (or causing, participating in, assisting or providing any statement, opinion or information in connection with the publication of) any diary, memoir, letter, story, photograph, interview, article, essay, account or description (whether fictionalized or not) concerning any of the foregoing, publication being deemed to include any presentation or reproduction of any written, verbal or visual material in any communication medium, including any book, magazine, newspaper, theatrical production or movie, or television or radio programming or commercial or any posting on the Internet. In addition to any and all
6
other
remedies available to the Employer for any violation of this Section, you agree to immediately remit and disgorge to the Employer any and all payments paid or payable to you in connection with or as a result of engaging in any of the above acts.
Nothing herein is intended to interfere with any disclosure right protected by law.
17. DISCLOSURE OF CONFIDENTIAL INFORMATION. In the event that you are required to make disclosure under any court order, subpoena or other judicial process, you will cooperate with the Employer and provide the Employer with prompt written notice, take all steps requested by the Employer to defend against the compulsory disclosure and permit the Employer to participate with counsel of its choice in any proceeding relating to the compulsory disclosure. You
acknowledge that all information, the disclosure of which is prohibited by this Agreement, is of a confidential and proprietary character and of great value to the Employer and/or the Company. You also acknowledge that, to the extent you had access to and became acquainted with confidential information of the Employer and/or the Company, any subsequent employment with a competitor of the Employer and/or the Company would inevitably result in a prohibited disclosure of confidential information.
18. COVENANT AGAINST COMPETITION, SOLICITATION. In addition to any agreement related to competition previously
executed by you, during the Severance Period, you shall not, without the prior written consent of the Employer’s Chief Executive Officer, 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, any other corporation, partnership, proprietorship, firm, association or other business entity, or otherwise engage in competition with, perform services for, own an interest in, or otherwise participate in, a “Competitive Business”. This restriction of competition is limited to provision of the same or similar services as those performed by you during your employment with the Employer or any of its direct and indirect subsidiary companies. Notwithstanding the foregoing, this provision shall not prohibit you from performing any services for any entity if such services are performed outside the United States unless those services were provided outside
the United States during the term of your employment with the Employer or any of its direct and indirect subsidiary companies, in which case the restriction shall extend to those geographic areas in comity with those services provided; nor shall it prohibit you from performing any service for any entity if such services are in no way related to any business which is competitive with the business of the Employer or any of its direct and indirect subsidiary companies. “Competitive Business” means the business engaged in by the Employer and any or all of its direct and indirect subsidiary companies immediately prior to the Termination Date. Further, during the Severance Period you shall not, and shall not permit any of your employees, agents or others under your control to, directly or indirectly, on behalf of you or any other person, (i) call upon, accept Competitive Business from or solicit Competitive Business of any person who is, or had been at any time during
the preceding two years, a customer of the Company or any successor to the business of the Company, or otherwise divert or attempt to divert any business of the Company of any such successor, or (ii) directly or indirectly recruit or otherwise solicit or induce any person who is an employee of, or otherwise engaged by, the Company or any successor to the business of the Company to terminate his or her employment or other relationship with the Company or such
successor.
19. NON-ADMISSION. Nothing contained in this Agreement shall be deemed or construed as an admission of wrongdoing or liability on the part of the Employer or the Company.
20. SEVERABILITY CLAUSE. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision or provisions of this Agreement, which shall remain in full force and effect. If any provision of this Agreement is held to be invalid, void or unenforceable in any jurisdiction, any court so holding shall
7
substitute
a valid, enforceable provision that preserves, to the maximum lawful extent, the terms and intent of such provisions of this Agreement. If any of the provisions of, or covenants contained in, this Agreement are hereafter construed to be invalid or unenforceable in any jurisdiction, the same shall not affect the remainder of the provisions or the enforceability thereof in any other jurisdiction, which shall be given full effect, without regard to the invalidity or unenforceability in such other jurisdiction. Any such holding shall affect such provision of this Agreement, solely as to that jurisdiction, without rendering that or any other provisions of this Agreement invalid, illegal or unenforceable in any other jurisdiction. If any covenant should be deemed invalid, illegal or unenforceable because its scope is considered excessive, such covenant will be modified so that the scope of the covenant is reduced only to the minimum extent necessary to render the modified
covenant valid, legal and enforceable.
21. OFFSET. The Employer shall be entitled to offset any sums owed by you to the Employer against the severance pay payable pursuant to Sections 1 and/or 4 including, but not limited to, any Severance Pay and/or Employer contributions to your medical and/or dental coverage provided to you prior to the Effective Date of this Agreement.
22. ASSIGNMENT. This Agreement is personal to you and you may not assign any rights or delegate any responsibilities hereunder.
23. GOVERNING LAW AND CHOICE OF FORUM. This Agreement shall be governed by, and construed pursuant to, the laws of the
State of Connecticut applicable to transactions executed and to be wholly performed in Connecticut between residents thereof. The parties consent and agree to the exclusive jurisdiction of the Federal and State courts sitting in the State of Connecticut for all purposes.
24. ENTIRE AGREEMENT. This Agreement, including documents referenced herein, expressly supersedes any and all previous understandings and agreements between the Employer and/or the Company and you and constitute the sole and exclusive understanding between the Employer and/or the Company and you concerning the subjects set forth herein, other than any agreements related to non-competition or trade secrets, confidential
information and/or work product previously executed by you. This Agreement may not be altered, modified, changed or discharged except in a writing signed by you and agreed to by the Employer. You understand and agree that other than as set forth in this Agreement, you will not receive any compensation, payments or benefits of any kind from the Employer and/or the Company and you expressly agree that you are not entitled and have no right to any additional compensation, payments or benefits other than the payment of vested benefits (if any) under the terms of the Employer’s qualified pension plans, as amended from time to time.
To accept the above terms, please execute and return to the undersigned an original of this Agreement in the postage paid envelope included with this letter no later than twenty-one (21)
days after the date first written above. Until the Effective Date, you will not receive any of the benefits outlined in this letter.
I, Mike Goralski, acknowledge receipt of the Agreement and I agree to all the terms and conditions set forth in the Agreement. I have read and fully understand the terms set forth in the Agreement and enter into such agreement of my own free will and without coercion, intimidation or threat of retaliation. I also acknowledge and understand that I have been afforded twenty-one (21) days to consider the Agreement and to have the Agreement reviewed by my attorney if I so choose. I further understand that I have seven (7) days to revoke the Agreement after the date I sign the Agreement and that the Agreement shall not be effective or enforceable until the expiration of this seven (7) day revocation period without revocation.