Exhibit 99.1
SEPARATIONAGREEMENT
BY AND BETWEEN
A. SCHULMAN, INC.
AND
JOHN M. MYLES
This
Separation Agreement (“Agreement”) is entered into by
A. Schulman, Inc. (“Corporation”), a Delaware
corporation, and John M. Myles (“Mr. Myles”),
collectively, the “Parties,” to describe the terms and
conditions of Mr. Myles’ separation of employment with
the Corporation.
ARTICLE 1 EFFECTIVE DATE OF AGREEMENT
This Agreement will become effective
as defined in Section 8.03[4].
ARTICLE 2 RESIGNATION AND RETIREMENT
2.01
Resignation and Retirement. Mr. Myles agrees:
[1]
Effective as of the end of business August 31, 2007,
[a] to resign as Vice President Research and Development and
[b] terminate the Employment Agreement dated July 8,
1998 between Mr. Myles and the Corporation (“Employment
Agreement”); and
[2]
Effective as of the end of business August 31, 2007, to resign
as an employee of the Corporation and any other entity that is
related through common ownership to the Corporation (all entities
related through common ownership to the Corporation are called
“Group Members” and the Corporation and all Group
Members collectively are called the “Group”).
ARTICLE 3 CONSIDERATION
Mr. Myles agrees that he will
comply with the terms of this Agreement and will voluntarily
terminate his employment at the close of business August 31,
2007 (“Termination Date”). In exchange, but subject to
Mr. Myles’ execution and non-revocation of a general
release, the Corporation will engage Mr. Myles as an
independent contractor under the terms contained in a consulting
agreement between Mr. Myles and the Corporation.
Mr. Myles covenants and agrees
that he has received all compensation and benefits as an employee
of the Corporation, and is entitled to no additional compensation
or benefit under the terms of the Employment Agreement with the
exception of participation in the 2007 Bonus Program as outlined in
section 9.02 — Post Separation Benefits.
ARTICLE 4 POST-TERMINATION OBLIGATIONS
4.01
Confidentiality. The Group’s methods, plans for doing
business, processes, pricing, compounds, customers and supplies are
vital to the Group and, to the extent not made public by the Group,
constitute confidential information subject to the Group’s
proprietary rights therein. Mr. Myles covenants and agrees that he
will not, directly or indirectly, make known, divulge, furnish,
make available or use, otherwise than in the regular course of
Mr. Myles’ consulting relationship with the Corporation,
any invention, product, process, apparatus or design of any of the
Group, or any knowledge or information in respect thereof
(including, but not limited to, business methods and techniques),
or any other confidential or so-called “insider”
information of any of the Group.
4.02
Return of Materials. Mr. Myles agrees [1] to
deliver or return to the Corporation upon his termination all
written Confidential Information, as defined above, furnished by
the Corporation or any Group Member or prepared by Mr. Myles
in connection with his services for the Corporation and [2]
that he will not retain any copies of any of the materials
described in Section 4.02[1]. In addition, upon
Mr. Myles’ termination, he agrees to immediately return
to the Corporation all property of the Corporation or any Group
Member which is in his possession, including, but not limited to,
memoranda, books, papers, computer files, laptops, credit cards and
keys.
4.03
Non-Competition and Non-Solicitation. Mr. Myles covenants
and agrees that during the period of one (1) year following
the Effective Date of this Agreement, he will not, directly or
indirectly, either as an individual for Mr. Myles’ own
account or as an investor, or other participant in, or as an
employee, agent, or representative of, any other business
enterprise:
[1]
solicit, employ, entice, take away or interfere with, or attempt to
solicit, employ, entice, take away or interfere with, any employee
of the Corporation or the Group; or
[2]
engage or participate in or finance, aid or be connected with any
enterprise which competes with the business of the Group, or any of
them.
The
geographical limitations of the foregoing shall include any country
in which the Group or any of them shall be doing business as of the
Effective Date of this Agreement.
4.04
Injunctive Relief. Mr. Myles acknowledges that it is
impossible to measure in money the damages that will accrue to the
Corporation by reason of Mr. Myles’ failure to observe
any of the obligations imposed on him by this Article 4.
Accordingly, if the Corporation institutes an action to enforce the
provisions hereof, Mr. Myles hereby waives the claim or
defense that an adequate remedy at law is available to the
Corporation, and Mr. Myles agrees not to urge the claim or
defense that a remedy at law exists. Also, if a final determination
is made by a court having competent jurisdiction that the time or
territory or any other restriction contained in Section 4.03 is an
unenforceable restriction on Mr. Myles’ activities, the
provisions of Section 4.03 will not be rendered void but will
be deemed amended to apply the maximum time and territory and other
restrictions the court judicially determines or otherwise indicates
to be reasonable.
-2-
ARTICLE 5 INDEMNIFICATION
To the
extent permitted by law, the Corporation will indemnify
Mr. Myles pursuant to the terms of the Indemnification
Agreement, entered into, by and between the Corporation and
Mr. Myles dated on or about October 16, 2006 and the
Corporation’s Certificate of Incorporation and Bylaws, each
as amended.
ARTICLE 6 ASSIGNMENT OF AGREEMENT
6.01 Except as specifically provided in this section, the
Corporation may not assign this Agreement to any person or entity
that is not a Group Member. However, this Agreement may and will be
assigned or transferred to, and will be binding upon and inure to
the benefit of, any successor of the Corporation, in which case
this Agreement will be interpreted and applied by substituting that
successor for the “Corporation” under the terms of this
Agreement. For these purposes, “successor” means any
person, firm, corporation or business entity which at any time,
whether by merger, purchase or otherwise acquires all or
substantially all of the assets or the business of the
Corporation.
6.02 Mr. Myles may not assign the duties allocated to
him under this Agreement to any other person or entity. However,
this Agreement will inure to the benefit of and be enforceable by
Mr. Myles’ personal or legal representatives, executors
and administrators, successors, heirs, distributees, devisees, and
legatees.
ARTICLE 7 DISPUTE RESOLUTION
7.01 Except as provided in Section 4.04, any
disagreement arising under this Agreement that is not resolved by
agreement between the Parties, including the basis on which
Mr. Myles’ employment is terminated, will be resolved by
arbitration in accordance with the rules of the American
Arbitration Association. The award of the arbitrator will be final,
conclusive and nonappealable and judgment upon the award rendered
by the arbitrator may be entered in any court having competent
jurisdiction. The arbitrator must be an arbitrator qualified to
serve in accordance with the rules of the American Arbitration
Association and one who is approved by the Corporation and
Mr. Myles. If the Corporation and Mr. Myles fail to agree
on an arbitrator, each must designate a person qualified to serve
as an arbitrator in accordance with the rules of the American
Arbitration Association and these persons will select the
arbitrator from among those persons qualified to serve in
accordance with the rules of the American Arbitration Association.
Any arbitration relating to this Agreement will be held in Summit
County, Ohio. Regardless of the scope of this section, the Parties
ag
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