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Exhibit 10-ee
EXECUTION COPY
RETIREMENT AGREEMENT
This Retirement Agreement (“Agreement”) is made and entered into by and between James M. Stolze (“Mr. Stolze”) and MEMC Electronic Materials, Inc. (“MEMC”). In consideration of the following promises, the parties agree as follows:
1. Retirement. Mr. Stolze acknowledges that he will retire from employment with MEMC effective as of January 31, 2004 (the “Retirement Date”). As of the Retirement Date, Mr. Stolze’s employment relationship with MEMC will end. In connection with Mr. Stolze’s retirement, MEMC and Mr. Stolze have agreed to settle all matters relating to Mr. Stolze’s employment relationship with MEMC and its termination.
2. Retirement Status of Employee. Mr. Stolze retires and irrevocably resigns from MEMC effective as of the Retirement Date, which retirement and resignation is hereby accepted by MEMC. Notwithstanding the foregoing, unless Mr. Stolze’s consulting services are earlier terminated pursuant to Paragraph 4(b), Mr. Stolze will serve as a consultant of MEMC from the Retirement Date through January 3, 2005 (the “Consulting Termination Date”). As of December 31, 2003, Mr. Stolze shall automatically and without taking any further actions be deemed to have resigned from his position as Executive Vice President and Chief Financial Officer of MEMC (but not as an employee of MEMC which employment shall continue through the Retirement date). As of the Retirement Date, Mr. Stolze shall automatically and without taking any further actions be deemed to have resigned from all other officer and director positions then held by him with MEMC and all of its subsidiaries and joint ventures. Notwithstanding the foregoing, if requested by MEMC, Mr. Stolze shall resign from some or all of such officer and director positions as of such other date(s) prior to the Retirement Date as may be requested by MEMC. If requested by MEMC, Mr. Stolze agrees to sign appropriate resignation letters to document his resignation(s).
3. Separation Payments and Benefits. In consideration and recognition of past services rendered and in exchange for Mr. Stolze’s promises and obligations herein and as payment in full of the amounts to which Mr. Stolze is entitled from MEMC under any plan of MEMC in which Mr. Stolze is a participant, including without limitation the MEMC 2002 Annual Incentive Plan, any 2003 bonus or incentive compensation plan adopted by MEMC, and/or under any employment agreement with MEMC to which Mr. Stolze is a party, including the Employment Agreement between Mr. Stolze and MEMC entered into as of January 1, 2002 (the “Employment Agreement”), subject to Paragraph 4(b) and so long as Mr. Stolze adheres to the promises and agreements set out in this Agreement, MEMC shall provide the following to Mr. Stolze if this Agreement becomes effective:
| (a) | A base salary at an annual rate of $302,000.00 payable in semi-monthly or bi-weekly installments (subject to applicable tax withholding), prorated for any partial semi-monthly or bi-weekly periods, from the effective date hereof until the Retirement Date, in accordance with the MEMC salaried payroll cycle. |
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| (b) | A consulting fee at an annual rate of $24,000.00 payable in semi-monthly installments of approximately $1,000.00, prorated for any partial semi-monthly periods, from the Retirement Date through the Consulting Termination Date for consulting services to be provided by Mr. Stolze as outlined in Paragraph 4(a). Mr. Stolze, as a self-employed individual, shall be solely responsible for paying any income or earnings taxes or self-employment taxes resulting from the consulting services performed under this Agreement and MEMC does not assume any responsibility for such payments. |
| (c) | Provided Mr. Stolze complies with the terms and conditions of this Agreement through the date of payment, MEMC will pay Mr. Stolze the sum of $63,800.00 in cash (subject to applicable tax withholding) in accordance with the 2002 Annual Incentive Plan, at the same time and in the same manner as such payments are made to other eligible employees. In addition, provided Mr. Stolze complies with the terms and conditions of this Agreement through the date of payment, MEMC will pay Mr. Stolze the amount (subject to applicable tax withholding) due from the 2003 Incentive Plan related to Mr. Stolze’s performance in 2003, including $21,100 for the first quarter 2003, $4,500 for the second quarter of 2003, $20,400 for the third quarter of 2003 and such additional amount, if any, as Mr. Stolze earns (based on his performance) for the fourth quarter of 2003; such payment under the 2003 Incentive Plan to be made in the same manner and at the same time as such payments are made to other eligible executives. |
| (d) | Continued eligibility for all U.S. benefit programs (as those plans may exist from time to time) through the Retirement Date, provided that Mr. Stolze contributes the same amount for such benefit coverages as other similarly situated employees (which contributions will be withheld from the payments provided in subparagraph (a) above), and provided that MEMC continues to provide such coverage for active non-union employees. |
| (e) | So long as Mr. Stolze continues to adhere to the promises and agreements set out in this Agreement, during the period commencing on the effective date hereof until the Retirement Date, Mr. Stolze shall continue to vest in the stock options granted to him under the MEMC 1995 Equity Incentive Plan (the “1995 Plan”), the MEMC 2001 Equity Incentive Plan (the “2001 Plan”) and the stand-alone Stock Option Grant Agreement between Mr. Stolze and MEMC dated as of January 1, 2002 for 215,000 shares of MEMC common stock (the “Stand-Alone Option Agreement” and, together with the 2001 Plan and the 1995 Plan, the “Plans”). Any stock options granted to Mr. Stolze under the Plans that are not vested as of the Retirement Date shall be forfeited. Any stock options granted to Mr. Stolze under the 1995 Plan prior to January 1, 2002 which are vested as of the Retirement Date shall remain exercisable for 60 days following the Retirement Date. Any stock options granted to Mr. Stolze under the 1995 Plan after December 31, 2001, under the 2001 Plan and under the Stand-Alone |
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| Option Agreement which are vested as of the Retirement Date shall remain exercisable for 90 days following the Retirement Date. Such stock options shall be subject to the terms of the applicable stock option agreements. |
| (f) | So long as Mr. Stolze continues to adhere to the promises and agreements set out in this Agreement, during the period commencing on the effective date hereof until the Consulting Termination Date, MEMC understands that Mr. Stolze will continue to vest in his “Profits Interest” in TPG Wafer Management LLC. |
The payments and benefits provided herein are made in lieu of any and all payments or benefits that might otherwise be available to Mr. Stolze arising out of his employment with MEMC, excluding Mr. Stolze’s non-forfeitable rights to his accrued benefits (within the meaning of Sections 203 and 204 of ERISA), if any, under the MEMC Pension Plan and the MEMC Retirement Savings Plan, as such plans may be hereafter amended, and Mr. Stolze’s right, if any, to continued COBRA coverage after the Retirement Date. Mr. Stolze acknowledges and agrees that the payments and benefits provided herein are in full settlement of any amounts or benefits to which he might be entitled under any employment agreements with MEMC.
4. Mr. Stolze’s Agreement to Provide Services; Termination.
(a) Services.
| (i) | Services as Employee. Mr. Stolze agrees that during the period commencing on the effective date hereof until December 31, 2003 he will continue to perform his duties and responsibilities as outlined in Section 1 of the Employment Agreement in his capacity of Executive Vice President and Chief Financial Officer of MEMC. In addition, during the period between January 1, 2004 and the Retirement Date, Mr. Stolze agrees that he will, in his capacity as an employee of MEMC, (A) assist MEMC regarding activities pertaining to his prior responsibilities with MEMC and (B) provide such services as are necessary or useful to provide for a transition of his employment responsibilities. |
| (ii) | Consulting Services. During the period commencing on the Retirement Date until the Consulting Termination Date, Mr. Stolze agrees that he will provide consulting services to the Company on such projects relating to accounting, finance and/or business development matters as are assigned to Mr. Stolze by the Chief Financial Officer and/or Chief Executive Officer of MEMC. Mr. Stolze shall provide such consulting services in his capacity as an independent contractor without additional compensation beyond that specified in Paragraph 3 above. Such consulting services shall be at such times, of such scope, and on such other terms and conditions as are requested by the Chief Financial Officer and/or Chief Executive |
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| Officer of MEMC. If requested by MEMC, Mr. Stolze will sign a confidentiality agreement that will cover information obtained by, or otherwise made available to, Mr. Stolze in his capacity as a consultant. MEMC will reimburse Mr. Stolze for reasonable and necessary business expenses incurred by Consultant in connection with the consulting services, including (i) business travel expenses when travel is required and pre-approved by MEMC, and (ii) other items agreed to by MEMC in advance of being incurred. |
(b) Termination. Notwithstanding any other provision contained herein, on and after the Retirement Date until the Consulting Termination Date, (i) MEMC may terminate Mr. Stolze’s consulting services for Cause by giving written notice to Mr. Stolze and (ii) Mr. Stolze may terminate the consulting services for any reason by giving written notice to MEMC. The effective date of the termination (the “Termination Date”) shall be set forth in such notice. For purposes of this Agreement, “Cause” shall mean (i) the failure of Mr. Stolze to make a good faith effort to substantially perform his duties or services hereunder (other than any such failure due to Mr. Stolze’s Disability (as defined in the Employment Agreement)) or Mr. Stolze’s insubordination with respect to a specific directive of the Chief Executive Officer of MEMC; (ii) Mr. Stolze’s dishonesty, gross negligence in the performance of his duties or services hereunder or engaging in willful misconduct; (iii) Mr. Stolze’s failure to meet reasonable performance expectations in the performance of his duties or services; (iv) breach by Mr. Stolze of any material provision of this Agreement or material violation of MEMC policy applicable to Mr. Stolze; or (v) Mr. Stolze’s commission of a crime that constitutes a felony or other crime of moral turpitude or fraud. Any dispute about whether Mr. Stolze was terminated for Cause shall be resolved by arbitration as provided in Paragraph 14 hereof.
(c) Consequences of Termination. In the event that Mr. Stolze terminates his consulting services for any reason or MEMC terminates Mr. Stolze’s consulting services for Cause, in either case prior to the Consulting Termination Date, (A) he shall continue to receive the payments set forth in Paragraph 3(b) above through the Termination Date and (B) he shall forfeit all rights to payments under Paragraph 3(c) to the extent not yet paid. In addition, MEMC understands that effective as of the Termination Date, Mr. Stolze will no longer continue to vest in his “Profits Interest” in TPG Wafer Management LLC.
5. Mr. Stolze’s Agreement Not to File Suit. In consideration of the payments and benefits set out in paragraph 3 above, Mr. Stolze agrees for himself and on behalf of, as applicable, his heirs, beneficiaries, executors, administrators, successors, assigns, and anyone claiming by, through or under any of the foregoing, that he will not file or otherwise submit any charge, claim, complaint or action to any agency, court, organization, or judicial forum (nor will he permit any person, group of persons, or organization to take such action on his behalf except as otherwise provided by law) against MEMC, nor file or otherwise submit any such charge,
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claim, complaint or action against any subsidiary, affiliate or parent company of MEMC, or against any officer, agent, employee, attorney, representative, successor or assign of MEMC (or of any such subsidiary, affiliate or parent company of MEMC) arising out of any action or non-action on the part of MEMC or on the part of any such above-referenced entity or any officer, agent, employee, attorney or representative of MEMC or of any such entity for any act or event that occurred on or prior to the Consulting Termination Date. Said claims, complaints and actions include, but are not limited to (a) any breach of an actual or implied contract of employment between Mr. Stolze and MEMC, (b) any claim of unjust, wrongful, or tortious discharge (including any claim of fraud, negligence, whistle blowing, or intentional infliction of emotional distress), (c) any claim of defamation or other common-law action, (d) any claim of violations arising under the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., 42 U.S.C. § 1981, the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq., the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq., the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201, et seq., the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701, et seq., the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001, et seq., the Worker Adjustment and Retraining Notification Act (“WARN”), 29 U.S.C. §§ 2101, et seq., the Older Worker Benefit Protection Act (“OWBPA”) 29 U.S.C. §§ 621, et seq., and (e) all other claims arising under any other federal, state, or local law, regulation or ordinance.
6. Mr. Stolze’s Release of Claims. Mr. Stolze hereby agrees for himself, and as applicable, his heirs, beneficiaries, executors, administrators, successors, assigns and anyone claiming by, through or under any of the foregoing, to release and forever discharge MEMC and its subsidiaries, affiliates, and parent companies, and their respective officers, agents, employees, attorneys, representatives, successors and assigns, from any and all matters, claims, demands, damages, causes of action, debts, liabilities, controversies, judgments and suits of every kind and nature whatsoever, foreseen, unforeseen, known or unknown, including claims, complaints and actions described in paragraph 5, which have arisen or could arise between Mr. Stolze, on the one hand, and MEMC or the persons and related entities listed above, on the other hand, from matters which occurred on or prior to the Consulting Termination Date, which matters include, but are not limited to, Mr. Stolze’s separation of employment from MEMC.
7. Mr. Stolze’s Release and Waiver of Other Claims. Except as expressly provided in this Agreement, Mr. Stolze agrees, for himself, and, as applicable, for and on behalf of his heirs, beneficiaries, executors, administrators, successors, assigns, and anyone claiming by, through or under any of the foregoing, to further release and waive any claims related to pay, vacation pay, insurance or welfare benefits or any other benefits of employment with MEMC arising from events occurring on or prior to the Consulting Termination Date. Notwithstanding any provision of this Agreement, this Agreement does not include any release or waiver of Mr. Stolze’s non-forfeitable rights to his accrued benefits (within the meaning of Sections 203 and 204 of ERISA), if any, under the MEMC Pension Plan and the MEMC Retirement Savings Plan, as such plans may be hereafter amended, and Mr. Stolze’s right, if any, to continued COBRA coverage after the Retirement Date, which rights are not released hereby but survive unaffected
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by this Agreement. In addition, this Agreement does not include any release or waiver of any rights Mr. Stolze has or may have, whether arising under law, contract or otherwise, to be indemnified as an officer or former officer of MEMC.
8. MEMC’s Release of Claims. MEMC hereby releases, remises and forever discharges Mr. Stolze from any and all claims or other causes of action it may have against Mr. Stolze on account of any contract, supposed liability, or thing done or omitted for all times in the past to the Consulting Termination Date.
9. Obligations Under Employment Agreement. Mr. Stolze agrees that he has continuing obligations to MEMC pursuant to Section 5 of the Employment Agreement between Mr. Stolze and MEMC entered into as of January 1, 2002, a copy of which is attached hereto as Exhibit 1 (the “Employment Agreement”) provided that the provisions of paragraph 13 below shall supersede the non-solicitation provisions included in the second paragraph under “Competitive Activity” of the exhibit to the Employment Agreement. Any violation of those obligations by Mr. Stolze constitutes a material breach of this Agreement and subjects Mr. Stolze to forfeiture of all benefits and payments pursuant to this Agreement. MEMC expressly reserves the right to pursue all other legal and equitable remedies available to it by virtue of any breach of Section 5 of the Employment Agreement or any promise made in this Agreement, including paragraphs 12 and 13, below.
10. Nondisparagement. Mr. Stolze represents that he will not, in any way, disparage MEMC or any subsidiary, affiliate or parent of MEMC, or any officer, agent, employee, attorney, representative, successor or assign of any of them, or make or solicit any comments, statements or the like to the media or to others that may be considered to be derogatory or detrimental to the good name or business reputation of any of the aforementioned persons or entities. MEMC represents that it will not, in any way, disparage Mr. Stolze or make or solicit any comments, statements or the like to the media or to others that may be considered to be derogatory or detrimental to the good name or business reputation of Mr. Stolze.
11. No Admission of Wrongdoing. The parties agree that nothing in this Agreement is an admission of any wrongdoing by either party.
12. CONFIDENTIALITY OF AGREEMENT. MR. STOLZE AGREES TO KEEP THE TERMS OF THIS AGREEMENT CONFIDENTIAL EXCEPT AS HE MIGHT BE LAWFULLY COMPELLED TO GIVE TESTIMONY BY A COURT OF COMPETENT JURISDICTION OR AS HE MAY BE REQUIRED BY LAW, REGULATION, GOVERNMENTAL AUTHORITY OR SIMILAR BODY TO DISCLOSE. THIS MEANS THAT EXCEPT AS STATED ABOVE, HE WILL NOT, AT ANY TIME, TALK ABOUT, WRITE ABOUT OR OTHERWISE PUBLICIZE THIS AGREEMENT, OR ITS NEGOTIATION, EXECUTION OR IMPLEMENTATION, EXCEPT (A) WITH AN ATTORNEY WHO MAY BE ADVISING HIM IN CONNECTION WITH THIS AGREEMENT; (B) WITH A FINANCIAL CONSULTANT
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OR EXECUTIVE OUTPLACEMENT COUNSELOR; (C) WITH HIS SPOUSE; (D) WITH ANY TAXING AUTHORITIES; (E) AS NECESSARY TO ENFORCE THIS AGREEMENT; OR (F) WITH RESPECT TO THE FACTUAL INFORMATION CONTAINED IN PARAGRAPHS 1, 2 AND 13 HEREOF AND THE CONTINUING OBLIGATIONS OF MR. STOLZE UNDER SECTION 5 OF THE EMPLOYMENT AGREEMENT, PROVIDED THAT SAID PERSONS TO WHOM DISCLOSURE IS PERMITTED PURSUANT TO (A), (B) AND (C) OF THIS PARAGRAPH 12 PROMISE TO KEEP THE INFORMATION THAT MAY BE REVEALED TO THEM CONFIDENTIAL AND NOT TO DISCLOSE IT TO OTHERS. NOTWITHSTANDING THE FOREGOING, THE PROVISIONS OF THIS PARAGRAPH 12 SHALL TERMINATE WITH RESPECT TO ANY INFORMATION THAT MEMC DISCLOSES IN A PUBLIC FILING WITH THE SECURITIES AND EXCHANGE COMMISSION.
13. NON-SOLICITATION. DURING THE PERIOD COMMENCING ON THE EFFECTIVE DATE OF THIS AGREEMENT AND ENDING ON THE SECOND ANNIVERSARY OF THE RETIREMENT DATE, MR. STOLZE WILL NOT, DIRECTLY OR INDIRECTLY, FOR HIS OWN ACCOUNT OR FOR THE ACCOUNT OF ANY OTHER PERSON OR ENTITY, ANYWHERE IN THE UNITED STATES OR ANYWHERE ELSE IN THE WORLD WHERE MEMC OR ANY OF ITS SUBSIDIARIES OR AFFILIATES ARE CONDUCTING BUSINESS, (I) SOLICIT FOR EMPLOYMENT, EMPLOY OR OTHERWISE INTERFERE WITH THE RELATIONSHIP OF MEMC OR ANY OF ITS SUBSIDIARIES OR AFFILIATES WITH ANY NATURAL PERSON THROUGHOUT THE WORLD WHO IS OR WAS EMPLOYED BY OR OTHERWISE ENGAGED TO PERFORM SERVICES FOR MEMC OR ANY OF ITS SUBSIDIARIES OR AFFILIATES IN A SALES, ACCOUNTING, FINANCIAL OR MANAGERIAL CAPACITY AT ANY TIME DURING WHICH MR. STOLZE WAS EMPLOYED BY MEMC OR (II) INDUCE ANY SALES, ACCOUNTING, FINANCIAL OR MANAGERIAL EMPLOYEE OF MEMC OR ANY OF ITS SUBSIDIARIES OR AFFILIATES (A) TO ENGAGE IN ANY ACTIVITY WHICH MR. STOLZE IS PROHIBITED FROM ENGAGING IN UNDER THIS AGREEMENT OR (B) TO TERMINATE HIS OR HER EMPLOYMENT WITH MEMC OR ANY OF ITS SUBSIDIARIES OR AFFILIATES. FOR PURPOSES OF THIS PARAGRAPH 13, “SOLICIT” MEANS ANY COMMUNICATION OF ANY KIND WHATSOEVER, REGARDLESS OF BY WHOM INITIATED, INVITING, ENCOURAGING OR REQUESTING ANY PERSON OR ENTITY TO TAKE OR REFRAIN FROM TAKING ANY ACTION. THE PROVISIONS OF THIS PARAGRAPH 13 SHALL SUPERSEDE THE NON-SOLICITATION PROVISIONS INCLUDED IN THE SECOND PARAGRAPH UNDER “COMPETITIVE ACTIVITY” OF THE EXHIBIT TO THE EMPLOYMENT AGREEMENT.
14. Arbitration. Except for the enforcement of any rights to equitable relief pursuant to paragraphs 9, 12 or 13, Mr. Stolze and MEMC agree that any dispute, controversy or claim (between Mr. Stolze and MEMC or any of its subsidiaries, affiliates, or parent companies, or any
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of their respective officers, agents, employees, attorneys, representatives, successors or assigns) arising out of, based upon or relating to Mr. Stolze’s employment, the termination of his employment, this Agreement or its breach, whether denominated as torts or contract claims or as statutory or regulatory claims (including claims for discrimination or discharge based upon race, sex, age, religion, disability or other prohibited grounds), whether arising before, during or after termination of Mr. Stolze’s employment, and also including any dispute about whether any particular controversy is arbitrable under the terms of this paragraph, shall be resolved by binding arbitration before one (1) arbitrator. Procedurally, the arbitration will be governed by the then-current Rules for Resolution of Employment Disputes of the American Arbitration Association. Any arbitration herein would be held in St. Louis County, Missouri. Judgment on an arbitration award rendered by the Arbitrator may be entered in any court having jurisdiction thereof. The Arbitrator shall have the authority to award costs of the Arbitration (including attorney’s fees) in a manner consistent with the controlling substantive claim at issue. Similarly, the Arbitrator shall have the authority to award damages (or other relief) consistent with the substantive claim being asserted.
15. KNOWING AND VOLUNTARY AGREEMENT. MR. STOLZE HEREBY REPRESENTS, DECLARES AND AGREES THAT HE VOLUNTARILY ACCEPTS THE PROVISIONS OF THIS AGREEMENT FOR THE PURPOSE OF MAKING A FULL AND FINAL COMPROMISE AND SETTLEMENT OF ALL MATTERS RELATING TO MR. STOLZE’S EMPLOYMENT RELATIONSHIP WITH MEMC AND ITS TERMINATION. MR. STOLZE IS ADVISED TO CONSULT AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT. MR. STOLZE UNDERSTANDS THE EFFECT OF SIGNING THIS AGREEMENT.
16. Entire Agreement. This Agreement, including any Exhibits, when signed, contains the entire agreement between the parties and, except as specifically referenced herein, there are no other understandings or agreements, written or oral, between them on the subject except as expressly stated herein. This Agreement, except as specifically referenced herein, fully supersedes and amends any and all prior agreements or understandings, if any, between Mr. Stolze and MEMC on any matter that is addressed in this Agreement. This Agreement cannot be amended or modified except by a written document signed by both MEMC and Mr. Stolze. Separate copies of this document shall constitute original documents which may be signed separately, but which together will constitute one single agreement.
17. Governing Law, Invalidity of Provisions. This Agreement shall be construed and governed by the laws of the State of Missouri (except its laws and decisions regarding conflicts of law which shall be disregarded in their entirety). If any part or provision of this Agreement is determined to be invalid or unenforceable under applicable law, the validity or enforceability of the remaining provisions shall be unaffected. To the extent that any provision of this Agreement is adjudicated to be invalid or unenforceable because it is over-broad, that provision shall not be void, but rather shall be limited only to the extent required by applicable law and enforced as so limited.
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18. Consequences of Violation of this Agreement. If it is finally determined by a court or arbitrator that either party has violated any of the promises contained in this Agreement, then such party shall reimburse the other party for all reasonable costs incurred by the other party, including reasonable attorneys’ fees, in enforcing or defending its rights under this Agreement.
19. Severance Offer Expiration. If Mr. Stolze does not sign this Agreement before a Notary Public and return the original Agreement signed by him, pursuant to the terms set forth herein, on or before January 13, 2004, the severance offer represented by this Agreement shall be deemed withdrawn and this Agreement shall be null and void, and of no further effect.
20. Consideration Period, Revocation Period, and Effective Date. Mr. Stolze acknowledges that he has been given at least 21 days within which to consider this Agreement before making a decision to sign this Agreement. This Agreement shall not be effective until seven (7) calendar days after the date Mr. Stolze signs and delivers this Agreement to MEMC. During this seven-day period, Mr. Stolze may revoke this Agreement by giving written notice to the Senior Vice President, Human Resources of MEMC at 501 Pearl Drive (City of O’Fallon), P.O. Box 8, St. Peters, Missouri 63376, that Mr. Stolze has decided to revoke the Agreement (“Revocation Notice”). If no such Revocation Notice is timely presented by Mr. Stolze, this Agreement shall be fully effective and binding upon the parties in accordance with its terms on the eighth (8th) calendar day after the date that Mr. Stolze signed and delivered this Agreement to MEMC.
21. Procedure for Mr. Stolze to Accept and Effectuate Agreement. If Mr. Stolze decides to sign this Agreement, he must sign before a Notary Public and deliver the original of the signed and notarized Agreement to the Senior Vice President, Human Resources of MEMC, at 501 Pearl Drive (City of O’Fallon), P.O. Box 8, St. Peters, Missouri 63376, on or before January 13, 2004.
22. Binding Agreement and Assignment. This Agreement shall be binding upon and inure to the benefit of Mr. Stolze and Mr. Stolze’s heirs and representatives, and to MEMC, its successors and assigns; further, this Agreement and the benefits provided hereunder are not assignable by Mr. Stolze without MEMC’s express written consent.
23. By signing this Agreement, Mr. Stolze acknowledges:
A. HE HAS READ THIS AGREEMENT COMPLETELY.
B. HE HAS HAD AN OPPORTUNITY TO CONSIDER THE TERMS OF THIS AGREEMENT.
C. HE HAS BEEN ADVISED TO CONSULT WITH AN ATTORNEY OF HIS CHOOSING PRIOR TO EXECUTING THIS AGREEMENT.
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D. HE KNOWS THAT HE IS GIVING UP IMPORTANT LEGAL RIGHTS BY SIGNING THIS AGREEMENT.
E. HE UNDERSTANDS AND MEANS EVERYTHING THAT HE HAS SAID IN THIS AGREEMENT, AND HE AGREES TO ALL ITS TERMS.
F. HE IS NOT RELYING ON MEMC OR ANY REPRESENTATIVE OF MEMC TO EXPLAIN THIS AGREEMENT OR HIS RIGHTS TO HIM.
G. HE HAS HAD AN OPPORTUNITY TO CONSULT AN ATTORNEY AND OTHER ADVISORS TO EXPLAIN THIS AGREEMENT AND ITS CONSEQUENCES TO HIM BEFORE HE SIGNED IT, AND HE HAS AVAILED HIMSELF OF THIS OPPORTUNITY TO WHATEVER EXTENT HE DESIRED.
H. HE HAS SIGNED THIS AGREEMENT VOLUNTARILY AND ENTIRELY OF HIS OWN FREE WILL WITHOUT ANY PRESSURE FROM MEMC OR ANY REPRESENTATIVE OF MEMC.
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THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES (SEE PARAGRAPH 14).
IN WITNESS WHEREOF, the undersigned parties have signed this Agreement.
| JAMES M. STOLZE | ||
| /s/ James M. Stolze | ||
| (Mr. Stolze’s Signature) | ||
| Date: | Dec. 29, 2003 | |
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| MEMC ELECTRONIC MATERIALS, INC. | ||
| By: | /s/ Nabeel Gareeb | |
| Nabeel Gareeb | ||
| Name of Company Representative | ||
| Title: | CEO | |
