Letterhead of Engelhard Corporation]
Exhibit
10.2
[Letterhead
of Engelhard Corporation]
January
__, 2006
[Name]
[Address]
Dear
___________:
This
letter is intended to update the Change in Control Agreement between you and
Engelhard Corporation (the “Company”) dated ______ (the “Agreement”) to reflect
changes in the Internal Revenue Code of 1986, as amended (the “Code”) applicable
to deferred compensation and a change in the Company’s auditors.
The
Code
was amended to add Section 409A thereto, which governs certain deferred
compensation arrangements. Final regulations have not yet been issued under
Section 409A and, after final regulations are issued, amendments to the
Agreement, the deferred compensation plans, supplemental retirement plans and
certain other plans and agreements maintained or entered into by the Company
may
be required. It is not currently known when final regulations will be issued
under Section 409A.
The
Company will amend the Agreement, the Deferred Compensation Plan for Key
Employees of Engelhard Corporation, the Supplemental Retirement Program of
Engelhard Corporation and any other agreement between the Company and you and
plan maintained by the Company or its affiliates in which you participate which,
in any such case, is or otherwise would be subject to Section 409A of the Code
(collectively, the “DC Plans and Agreements”) in a timely manner to the extent,
if any, necessary to avoid additional tax or interest imposed under Section
409A
and the regulations issued thereunder; provided,
however,
any
such amendment shall be made in a manner which does not reduce the economic
value of the DC Plans and Agreements to you, and any such amendment shall not
defer the date of any payment, or benefit provided, to you unless Xxxxx &
Young LLP advises the Company in writing (which written determination is
promptly provided to you by the Company) that there is not substantial authority
for otherwise avoiding additional tax or interest under Section 409A and in
no
event will payments be deferred due to Section 409A to a date that is more
than
six months following your termination of employment. The Company will consult
with you prior to making any such amendment, and you agree that your consent
to
an amendment that is consistent with the provisions hereof and satisfies the
foregoing proviso will not be unreasonably withheld. You will report for income
tax purposes with respect to Section 409A in a manner consistent with the
Company’s reporting (as communicated in writing by the Company to you), unless
inconsistent reporting is otherwise required after audit by the Internal Revenue
Service. In the event of such an audit, you and the Company agree to follow
procedures substantially similar to those set forth in Section 6 of the
Agreement. The Company will not amend any DC Plan and Agreement in a manner
which would cause any grandfather protection under Section 409A to be lost
with
respect
to a DC Plan and Agreement. The Company will indemnify and hold you harmless,
on
an after-tax basis (including, without limitation, income tax, additional tax,
excise tax, employment tax and any interest or penalties with respect thereto),
from any cost or liability resulting from any additional tax or interest imposed
under Section 409A. Any payments required to be deferred due to Section 409A
will be deposited in the Company’s Supplemental Retirement Trust for your
benefit, and the Trustee thereof will be given irrevocable instructions to
pay
such amounts to you on the earlier of the date that is six months following
your
termination of employment or the first date permissible under Section 409A.
Notwithstanding any such deposit into the Supplemental Retirement Trust, the
Company will continue to be liable for such payments until such amounts are
fully paid to you. The Company will make any amendments to the Supplemental
Retirement Trust necessary to effect the provisions hereof.
The
Agreement is hereby amended by providing that the Accounting Firm (as defined
in
Section 6(b) thereof) will be Xxxxx & Young LLP. In addition,
notwithstanding any provision thereof to the contrary, Xxxxx & Young LLP
will be required to provide supporting calculations with respect to the Excise
Tax (as defined therein) only to the Company, but the Company will promptly
provide copies of such supporting calculations to you. If the Accounting Firm
determines that no Excise Tax is payable by you, it will furnish the Company
with a written opinion
that substantial authority exists to that effect and, as a result, the Company
is not required to withhold Excise Tax from payments to you, and the Company
will promptly provide a copy of such opinion to you.
Except
as
modified herein, the Agreement shall remain in full force and effect in
accordance with its terms.
Please
acknowledge your agreement to the foregoing by signing below and returning
an
executed copy of this letter agreement to _____________.
Sincerely,
ENGELHARD
CORPORATION
By:
__________________________
Title:
__________________________
Acknowledged
and Agreed:
______________________________
[Name]
-2-
Date:
_______________________________
List
of
current executives who have entered into this letter agreement with the
Company:
Xxxxxx
X.
Xxxxxxxxx, XX
Xxxx
Xxxxxxx
Xxxx
X.
Xxxx
Xxxxx
X.
Xxxxx
Xxxxxxx
X. Xxxxxxxx
Xxxxx
X.
Xxxxxx
-3-
