Contract
Exhibit
10(j)
AMENDMENT
NUMBER ONE (the “Amendment”), dated as
of November 9, 2007, between XXXX CORPORATION, a Virginia corporation (“Xxxx”), and Xxxxx
Xxxxx (the “Executive”), to the
Executive Change in Control Agreement (the “Executive Change In Control
Agreement”), dated as of May 2, 2005, between Olin and the
Executive.
WHEREAS
Olin and the Executive wish to amend the Employment Severance Agreement in order
to (i) address the requirements of Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”), and (ii) make
certain other changes as set forth herein.
NOW,
THEREFORE, in consideration of the mutual agreements, provisions and covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
SECTION
1. Amendment to
Section 1(b). The following clause shall be deemed to
have been inserted into the end of the first sentence of
Section 1(b):
“or a
willful breach by Executive of Olin’s Code of Business Conduct.”
SECTION
2. Amendment to
Section 1(e)(i). Section 1(e)(i) shall be deemed to
have been deleted and the following clause shall be deemed to have been inserted
in its place:
“(i) Executive
is discharged by Olin, upon or following a Change in Control, other than for
Cause and other than due to Executive’s death or disability (which will be
deemed to occur if Executive becomes eligible to commence immediate receipt of
disability benefits under the terms of Olin’s long-term disability plan);
or”
SECTION
3. Amendment to
Section 1(e)(ii)(B). Section 1(e)(ii)(B) shall be
deemed to have been deleted and the following clause shall be deemed to have
been inserted in its place:
“(B)
Olin reduces Executive’s base salary or fails to increase Executive’s base
salary on a basis consistent (as to frequency and amount) with Olin’s salary
system for executive officers as in effect immediately prior to the Change in
Control;”
SECTION
4. Amendment to
Section 1(e)(ii)(D). Section 1(e)(ii)(D) shall be
deemed to have been deleted and Sections 1(e)(ii)(E) and 1(e)(ii)(F) shall
become Sections 1(e)(ii)(D) and 1(e)(ii)(E).
SECTION
5. Amendment to
Section 1(e). The following paragraphs shall be deemed to
have been inserted at the end of Section 1(e):
“Notwithstanding
anything to the contrary contained herein, Executive will not be entitled to
terminate employment and receive the payments and benefits set forth in
Sections and 5 as the result of the occurrence of any event specified in
the foregoing clause (ii) (each such event, a “Good Reason Event”) unless,
within 90 days following the occurrence of such event, Executive provides
written notice to Olin of the occurrence of such event, which notice sets forth
the exact nature of the event and the conduct required to cure such
event. Olin will have 30 days from the receipt of such notice
within which to cure (such period, the “Cure Period”). If, during the
Cure Period, such event is remedied, then Executive will not be permitted to
terminate employment and receive the payments and benefits set forth in
Sections 4 and 5 as a result of such Good Reason Event. If, at
the end of the Cure Period, the Good Reason Event has not been remedied,
Executive will be entitled to terminate employment as a result of such Good
Reason Event during the 45 day period that follows the end of the Cure
Period. If Executive terminates employment during such 45 day
period, so long as Executive delivered the written notice to Olin of the
occurrence of the Good Reason Event at any time prior to the expiration of this
Agreement, for purposes of the payments, benefits and other entitlements set
forth in Sections 4 and 5 of this Agreement, the termination of Executive’s
employment pursuant thereto shall be deemed to be a Termination before the
expiration of this Agreement. If Executive does not terminate
employment during such 45 day period, Executive will not be permitted to
terminate employment and receive the payments and benefits set forth in
Sections 4 and 5 as a result of such Good Reason Event.
If
(x) Executive’s employment is terminated prior to a Change in Control for
reasons that would have constituted a Termination if they had occurred upon or
following a Change in Control, (y) Executive reasonably demonstrates that
such termination of employment (or event described in clause (ii) above)
occurred at the request of a third party who had indicated an intention or taken
steps reasonably calculated to effect a Change in Control and (z) a Change
in Control involving such third party (or a party competing with such third
party to effectuate a Change in Control) does occur, then for purposes of this
Agreement, the date immediately preceding the date of such termination of
employment (or event described in clause (ii) above) shall be treated as
the date of the Change in Control, except that for purposes of determining the
timing of payments and benefits to Executive, the date of the actual Change in
Control shall be treated as the Executive’s date of termination of
employment. In the event that Executive’s employment terminates under
the circumstances described in clauses (x), (y) and (z) of the preceding
sentence, such termination will be considered a Termination for purposes of this
Agreement, and Executive will be entitled to receive the payments and benefits
described in Sections 4 and 5 of this Agreement, provided that any such
payments and benefits due under Section 4 or 5 shall be reduced by the
payments and benefits Executive has already received pursuant to the Executive
Agreement, dated as of January 26, 2005, between Executive and Olin (the
“Executive Agreement”) in respect of Executive’s termination of employment with
Olin, and the remainder of the payments and benefits payable pursuant to the
Executive Agreement shall be forfeited.”
SECTION
6. Amendment to
Section 5(a). Section 5(a) shall be deemed to have
been deleted and the following section shall be deemed to have been inserted in
its place:
“(a) If
Executive becomes entitled to payment under Section 4(a) or 4(b), as
applicable, then (i) Executive will be treated as if Executive remained
employed for service purposes for 36 months following the date of
Termination. If the date of Termination is prior to January 1,
2008, the Executive will receive 36 months of service credit under all Olin
qualified and non-qualified defined benefit pension plans for which Executive
was eligible at the time of Termination. If the date of Termination
is after December 31, 2007, the Executive will receive 36 months of
retirement contributions to all Olin qualified and non-qualified defined
contribution plans for which Executive was eligible at the time of the
Termination. Such contributions shall be based on the amount of the
Executive Severance. Such service credits or contributions shall be
applied to Olin’s qualified pension plans to the extent permitted under then
applicable law, otherwise such credit shall be applied to Olin’s non-qualified
defined benefit or defined contribution plan, as
appropriate. Payments under such non-qualified plans shall be due at
the times and in the manner payments are due Executive under Olin’s
non-qualified defined benefit and defined contribution pension plans, it being
understood that Executive shall be permitted to receive payments from Olin’s
plans (assuming Executive otherwise qualifies to receive such payments, is
permitted to do so under the applicable plan terms and elects to do so), during
the period that Executive is receiving payments pursuant to Section 4(a)),
and that Executive’s defined benefit pension benefit will be determined based on
Executive’s actual age at the time Executive’s pension benefit commences; and
(ii) for 36 months from the date of the Termination, Executive (and
Executive’s covered dependents) will continue to enjoy coverage on the same
basis as a similarly situated active employee under all Olin medical, dental,
and life insurance plans to the extent Executive was enjoying such coverage
immediately prior to the Termination. Except as specifically
permitted by Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”), and the regulations thereunder as in effect from time to
time (collectively, hereinafter, “Section 409A”), the coverage provided to
Executive during any calendar year will not affect the coverage to be provided
to Executive in any other calendar year. Executive’s entitlement to
insurance continuation coverage under the Consolidated Omnibus Budget
Reconciliation Act of 1985 would commence at the end of the period during which
insurance coverage is provided under this Agreement without offset for coverage
provided hereunder. Executive shall accrue no vacation during the
36 months following the date of Termination but shall be entitled to
payment for accrued and unused vacation for the calendar year in which the
Termination occurs. If Executive receives the Change in Control
Severance (including the amount referred to in Section 1(d)(ii)), Executive
shall not be entitled to an ICP award for the calendar year of Termination
if Termination occurs during the first calendar quarter. Even if
Executive receives the Change in Control Severance (including the amount
referred to in Section 1(d)(ii)), if Termination occurs during or after the
second calendar quarter, Executive shall be entitled to a prorated
ICP award for the calendar year of Termination which shall be determined by
multiplying Executive’s then current ICP standard annual award by a
fraction, the numerator of which is the number of weeks in the calendar year
prior to the Termination and the denominator of which
is 52. Executive shall accrue no ICP award following the
date of Termination. The accrued vacation pay and ICP award, if
any, shall be paid in a lump sum when the Change in Control Severance is
paid.”
SECTION
7. Amendment to Section
3(a). Section 3(a) shall be deemed to have been deleted
and the following clause shall be deemed to have been inserted in its
place:
“(a) This
Agreement expires at the close of business on January 26, 2011, provided that
beginning on January 26, 2009 and on each January 26 thereafter (any such
January 26 being referred to herein as a “Renewal Date”) the
term of this Agreement shall be extended for one additional year unless Olin has
provided Executive with written notice at least 90 days in advance of the
immediately succeeding Renewal Date that the term of this Agreement shall not be
so extended; provided, however, that if a
Change in Control has occurred prior to the date on which this Agreement
expires, this Agreement shall not expire prior to three years following the date
of the Change in Control; provided, further, that the
expiration of this Agreement will not affect any of Executive’s rights resulting
from a Termination prior to such expiration. In the event of Executive’s death
while employed by Olin, this Agreement shall terminate and be of no further
force or effect on the date of Executive’s death. Executive’s death
will not affect any of Executive’s rights resulting from a Termination prior to
death.”
SECTION
8. Amendment to
Section 5(c). The following sentence shall be deemed to
have been inserted at the end of Section 5(c):
“The
outplacement services will be provided for a period of 12 months beginning
within 10 days following the date of Termination.”
SECTION
9. Amendment to
Section 5(d). The following clause shall be deemed to
have been inserted into the end of the last sentence in
Section 5(d):
“;
provided further that except as specifically permitted by Section 409A, the
coverage provided to Executive during any calendar year will not affect the
coverage to be provided to Executive in any other calendar year.”
SECTION
10. Amendment to
Section 6(b)(ii). The last three sentences of
Section 6(b)(ii) shall be deemed to have been deleted and the following
four sentences shall be deemed to have been inserted in their
place:
“Any
Gross-Up Payment, as determined pursuant to this Section 6(b), shall be
paid by Olin to Executive within 5 days of the receipt of the Accounting
Firm’s determination and in no event shall such date be later than the last day
of the calendar year after the calendar year in which the applicable Excise Tax
is paid. Any determination by the Accounting Firm shall be binding
upon Olin and Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments that will not have been made by Olin should have been made (the
“Underpayment”), consistent with the calculations required to be made
hereunder. In the event Olin exhausts its remedies pursuant to
Section 6(b)(iii) and Executive thereafter is required to make a payment of
any Excise Tax, the Accounting Firm shall determine that amount of the
Underpayment that has occurred and any such Underpayment shall be paid by Olin
to or for the benefit of Executive within 5 days of receipt of the
Accounting Firm’s determination.”
SECTION
11. Amendment to
Section 12. The last sentence of Section 12 shall be
deemed to have been deleted and the following sentence shall be deemed to have
been inserted in its place:
“Except
as expressly provided in this Agreement and subject to Section 18(b),
payments made pursuant to this Agreement shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim which Olin and its subsidiaries
and affiliates may have against Executive.”
SECTION
12. Amendment to
Section 16(b). Section 16(b) shall be deemed to have
been deleted and the following section shall be deemed to have been inserted in
its place:
“(b)
Olin shall pay all reasonable legal fees and expenses, as they become due, which
Executive may incur prior to the third anniversary of the expiration of this
Agreement to enforce this Agreement through arbitration or otherwise unless the
arbitrator determines that Executive had no reasonable basis for Executive’s
claim. Should Olin dispute the entitlement of Executive to such fees
and expenses, the burden of proof shall be on Olin to establish that Executive
had no reasonable basis for Executive’s claim. All reimbursable
expenses shall be reimbursed to Executive as promptly as practicable and in any
event not later than the last day of the calendar year after the calendar year
in which the expenses are incurred, and the amount of expenses eligible for
reimbursement during any calendar year will not affect the amount of expenses
eligible for reimbursement in any other calendar year.”
SECTION
13. Amendment to
Section 17(a). Section 17(a) shall be deemed to have
been deleted and the following section shall be deemed to have been inserted in
its place:
“(a)
Except as specifically provided in Section 18(d), no provisions of this
Agreement may be modified, waived or discharged unless such modification, waiver
or discharge is agreed to in writing signed by Executive and Olin. No
waiver by either party hereto at any time of any breach by the other party
hereto of, or compliance with, any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time.”
SECTION
14. Amendment to
Section 17(c). The second sentence of Section 17(c)
shall be deemed to have been deleted and the following sentence shall be deemed
to have been inserted in its place:
“Subject
to Section 18(b), to the extent that Executive receives any Other Severance
Benefits, then the payments and benefits payable hereunder to Executive shall be
reduced by a like amount.”
SECTION
15. Amendment to
Section 18. The following new section shall be deemed to
have been inserted as Section 18:
“SECTION
18. Section 409A. (a) It
is intended that the provisions of this Agreement comply with Section 409A,
and all provisions of this Agreement shall be construed and interpreted in a
manner consistent with the requirements for avoiding taxes or penalties under
Section 409A.
(b)
Neither Executive nor any of Executive’s creditors or beneficiaries shall have
the right to subject any deferred compensation (within the meaning of
Section 409A) payable under this Agreement or under any other plan, policy,
arrangement or agreement of or with Olin or any of its affiliates (this
Agreement and such other plans, policies, arrangements and agreements, the “Olin
Plans”) to any anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment or garnishment. Except as permitted under
Section 409A, any deferred compensation (within the meaning of
Section 409A) payable to Executive or for Executive’s benefit under any
Olin Plan may not be reduced by, or offset against, any amount owing by
Executive to Olin or any of its affiliates.
(c)
If, at the time of Executive’s separation from service (within the meaning of
Section 409A), (i) Executive shall be a specified employee (within the
meaning of Section 409A and using the identification methodology selected
by Olin from time to time) and (ii) Olin shall make a good faith
determination that an amount payable under an Olin Plan constitutes deferred
compensation (within the meaning of Section 409A) the payment of which is
required to be delayed pursuant to the six-month delay rule set forth in
Section 409A in order to avoid taxes or penalties under Section 409A,
then Olin (or its affiliate, as applicable) shall not pay such amount on the
otherwise scheduled payment date but shall instead accumulate such amount and
pay it, without interest, on the first business day after such six-month
period.
(d)
Notwithstanding any provision of this Agreement or any Olin Plan to the
contrary, in light of the uncertainty with respect to the proper application of
Section 409A, Olin reserves the right to make amendments to this Agreement
and any Olin Plan as Xxxx xxxxx necessary or desirable to avoid the imposition
of taxes or penalties under Section 409A. In any case, except as
specifically provided in Section 6(b), Executive is solely responsible and
liable for the satisfaction of all taxes and penalties that may be imposed on
Executive or for Executive’s account in connection with any Olin Plan (including
any taxes and penalties under Section 409A), and neither Olin nor any
affiliate shall have any obligation to indemnify or otherwise hold Executive
harmless from any or all of such taxes or penalties.”
SECTION
16. Governing Law;
Construction. This Amendment shall be deemed to be made in the
Commonwealth of Virginia, and the validity, interpretation, construction and
performance of this Amendment in all respects shall be governed by the laws of
the Commonwealth of Virginia without regard to its principles of conflicts of
law. No provision of this Amendment or any related document shall be
construed against or interpreted to the disadvantage of any party hereto by any
court or other governmental or judicial authority by reason of such party’s
having or being deemed to have structured or drafted such
provision.
SECTION
17. Effect of
Amendment. Except as expressly set forth herein, this
Amendment shall not by implication or otherwise limit, impair, constitute a
waiver of, or otherwise affect the rights and remedies of the parties to the
Executive Change In Control Agreement, and shall not alter, modify, amend or in
any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Executive Change In Control Agreement, all of which
shall continue in full force and effect. This Amendment shall apply
and be effective only with respect to the provisions of the Executive Change In
Control Agreement specifically referred to herein. After the date
hereof, any reference to the Executive Change In Control Agreement shall mean
the Executive Change In Control Agreement as modified hereby.
SECTION
18. Counterparts. This
Amendment may be executed in one or more counterparts (including via facsimile),
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other party.
IN
WITNESS WHEREOF, this Amendment has been executed by the parties as of the date
first written above.
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CORPORATION,
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by
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Name:
Title:
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EXECUTIVE,
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/s/
G. Xxxxx Xxxxx, Jr.
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G.
Xxxxx Xxxxx, Jr.
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