Exhibit 10.1
SEPARATION AGREEMENT AND GENERAL RELEASE
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Section 1. SPECIAL
SEVERANCE BENEFITS
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I,
Gary A. Cappeline,
understand that on
December 31, 2006 ("Release
Date"), my employment
with Ashland Inc. (the
"Company" or "Ashland") will
end. I am signing this General Release in return for the special
severance
benefits offered to me
by Ashland, which are
more than would otherwise be
provided to me upon
termination.
Specifically, I
understand that I
will
receive the
severance benefits more fully described in Attachment I
(Summary of Benefits), which is hereby incorporated by
reference.
Section 2. COMPLETE
RELEASE OF LIABILITY
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(a) General
Release. In exchange for these special severance benefits
offered by Ashland, I completely release all claims I may have at
this
time
against Ashland, its divisions, subsidiaries, insurers and
affiliates,
their successors
and assigns, and their officers,
directors or
employees (collectively referred to hereafter as
"Releasees"). This Release is intended to be a broad release and
shall
apply to any relief,
no matter how
denominated,
including, but not
limited to, claims for future reemployment, rights or causes of
action
for
wages, backpay, front pay, compensatory damages, punitive
damages,
or
attorneys fees. I also agree that I will not file
any such claim
and
I hereby agree to indemnify and hold Releasees harmless from any
such
claim. In addition, I agree to waive the right to
receive any
recovery under any charge or lawsuit filed on my behalf.
(b) Extent of Release.
This release
includes all claims I
may have which
relate either
to the time of my employment or to my termination,
except the claims
mentioned in Section 2(c) below. Some of the types
of
claims that I am releasing, although there also may be others not
listed here, are claims under local, state or federal law relating
to:
1.
Discrimination
on the basis of sex, race, color, national origin,
religion, disability or veteran status;
2.
Restrictions, if
any, upon the rights of Ashland to terminate its
employees at will, including (i) violation of public policy,
(ii)
breach of any express
or implied covenant of the employment
contract, and (iii) breach of any covenant of good faith and
fair
dealing;
3.
Discrimination
on the basis of age,
including claims under the
Age Discrimination
in Employment Act (the "ADEA"), which is
located at 29 United States Code, Sections 621 through 634;
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4.
Payments,
if any, that might
otherwise be owed and payable to me
pursuant to the Workers' Adjustment and Retraining
Notification
(WARN) Act; and
5. Civil actions relating to negligence, defamation, invasion of
privacy, fraud, misrepresentation, or infliction of emotional or
mental distress.
(c) Exceptions
to Release.
The only claims
that this release does not
include are claims
related to:
1.
Claims for
benefits to which I am entitled
under this
special
severance offer;
2.
Any applicable
worker's compensation or unemployment compensation
laws;
3.
My rights
under the employee
benefit plans of the Company that
are governed by the Employee Retirement Income Security Act of
1974, as amended (ERISA), in effect as of my Release Date; and
4.
Any claims that
the law states may not be waived.
Section 3.
CONSEQUENCES OF BREACHING MY PROMISES IN SECTION 2
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If I
breach my promise in Section 2 of this General Release and file
a
claim or lawsuit based on what I released in this General Release,
I agree
to pay for all
liabilities and costs
incurred by Releasees, including
reasonable attorneys'
fees, in defending against my claim or lawsuit.
Provided, however,
that this provision shall not apply to any alleged
breach due to a challenge of the validity of the ADEA waiver contained
herein.
Section 4.
NONDISPARAGEMENT AND CONFIDENTIALITY
------------------------------------------------
I
agree that I will not make any oral or written communication to any
person or entity which
disparages,
or has the
effect of damaging the
reputation of, the Company, its affiliates, or their respective products,
services, officers,
directors or employees, whether past or current;
provided, that this
prohibition
shall not be
applied to prevent me
from
providing truthful
testimony in compliance with a lawful subpoena or court
order, or as otherwise may be required by law.
I
further agree that I have acquired Company Information as defined
herein. I understand and agree that such Company Information has been
disclosed to me in confidence and for Company use only. I will not
disclose
or communicate Company
Information to any third party, and I will not make
use of
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Company Information
on my own behalf, or on behalf of any third
party.
Further, I agree that
I will continue to be bound by the Service Agreement
executed during my
employment with the Company and in effect on my Release
Date, the terms and conditions of which are incorporated herein by
reference.
In
addition, I
specifically agree and
affirm that for a two (2) year
period following my Release Date, I will not, without prior written
consent
from Ashland's General
Counsel, accept a
directorship or employment with,
participate in the
management
or control
of, engage in consulting or
otherwise render
services for, hold
greater than ten percent (10%) of the
outstanding ownership
interest in, or otherwise engage in any business
activity with, any corporation, partnership, firm or other form of
business
enterprise which competes within the same geographical territory with the
products, activities and/or services currently offered by a
business of the
Company or under
development by a business of the Company as of my Release
Date (a "Competing
Business").
Provided, that it will not be deemed a
violation of this
section for me to work for a subsidiary, division,
affiliate, joint
venture, or other business enterprise of a Competing
Business, which
does not itself compete within the same geographical
territory with the products, activities and/or services
currently offered
by a business of the
Company or under
development
by a business
of the
Company as of my Release Date, so long as I do not engage in any
activity
with respect
to the management or operations of any other part of the
Competing Business.
I
further agree
that during this non-compete period, I will not
interfere with
or disrupt the business or employment relationship,
contractual or
otherwise, between the
Company or its
successors and any
other party, including
other employees of the Company or its
successors;
nor will I assist any
party in any attempt to acquire a controlling
interest in the Company.
I
agree that all of the above restrictions are reasonable, and that
they do not unreasonably preclude me from being gainfully
employed. I also
understand that I continue to be subject to the non-compete provisions of
Ashland's Supplemental Early Retirement Plan, and nothing in this
Agreement
abrogates my obligations thereunder.
Section 5. RETURN OF
COMPANY INFORMATION AND PROPERTY
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I
agree that on or prior to my Release Date I returned to the Company
all Company Information and related reports, maps, files, memoranda, and
records; credit cards,
cardkey passes; door and file keys; computer access
codes; software;
and other physical or
personal property which I received
or prepared or helped prepare in connection with my employment.
I
further represent
that I have not
retained and will not retain any
copies, duplicates,
reproductions, or
excerpts thereof. I understand that
the term "Company Information" as used in this Agreement refers to
information obtained
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during my employment
with Ashland, and/or
any division,
subsidiary,
or
affiliate of Ashland, and includes (a) confidential information including,
without
limitation,
information
received from
third parties under
confidential
conditions; and (b)
other technical,
business, or financial
information, the use
or disclosure of which might reasonably be construed
to be contrary to the interests of the Company.
Section 6. ADVICE TO
CONSULT WITH ATTORNEY
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I
understand
that I am advised to
consult with an
attorney before
signing this General Release.
Section 7. PERIOD FOR
REVIEW AND COVERAGE OF OFFER
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I
understand and agree that I have been given at least twenty-one
(21)
days to review and consider this General Release. I understand that I may
use as much or as
little of this
period of time as I wish to prior to
reaching a decision
regarding the signing of this General Release. I
understand that if I
sign this General Release prior to my Release Date or
if I do not sign, date, and return this General Release by January
12, 2007
the General
Release will not be valid and I will not
receive the special
severance benefits under the terms of this special severance
offer.
Section 8. EFFECTIVE
DATE AND MY RIGHT TO REVOKE GENERAL RELEASE
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In
accordance with federal law, I understand that this General
Release
may be revoked by me at any time within seven (7) calendar days after the
date of execution noted below. To be effective, the revocation must be in
writing and delivered
to Susan Esler,
Vice President Human Resources,
Ashland Inc., 50 E
RiverCenter Blvd.,
PO Box 391,
Covington,
KY 41012,
either by hand or mail within a seven (7) day period following my
execution
of this General Release. If delivered by mail, the recision must
be:
1.
Postmarked within the seven (7) day period;
2.
Properly addressed as noted above; and
3.
Sent by Certified Mail, Return Receipt Requested.
I
understand that this
General Release and my
acceptance of it shall
not become effective
or enforceable until the seven (7) day
revocation
period has expired.
Section 9. GOVERNING
LAW
-------------------------
It
is agreed that this General Release shall be interpreted in
accordance with the laws of the State of Kentucky.
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Section 10. PARTIAL
INVALIDITY OF THE GENERAL RELEASE
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I
agree that if any term
or provision
of this General Release is
determined by a court or other appropriate authority to be invalid,
void,
or unenforceable for any reason, the remainder of the terms and
provisions
of this General
Release shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
Section 11. COMPLETE
AGREEMENT
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It
is agreed that the
foregoing constitutes the entire agreement
between the
Employee and the Company, and that there are no other
agreements, oral or
written, express or
implied, relating to
any matters
covered by this Agreement, or any other agreement in effect and
relating to
any other matter
whatsoever,
whether or not within the knowledge or
contemplation of
either of the Parties
at the time of
execution of this
Agreement.
I M P O R T A N T N O T I C E
I acknowledge that:
o I have
read this General Release and I understand fully its final and
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