1
EXHIBIT 10.10
AMENDED AND RESTATED
CHANGE IN CONTROL AGREEMENT
THIS AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT (this
"Agreement") is made as of October ____, 2000, between OSCA, Inc., a Delaware
corporation (the "Company") and, together with any of its subsidiaries or
successors in interest, including a successor in a Change in Control (as defined
below), the "Employer"), and [_________] ("Executive"). This Agreement amends
and restates the Change in Control Agreement dated _________________, 2000,
between the Company and the Executive (the "Original Agreement").
WHEREAS, Executive provides valuable services to the Company
and the Company has determined that it would be in the Company's interest to
provide Executive certain assurances regarding Executive's treatment in the
event of a Change in Control; and
WHEREAS, Executive desires to secure such assurances;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Severance Payment.
(a) If, subject to the conditions set forth in Section 1(b)
below, Executive's employment with the Employer is terminated under the
circumstances contemplated by Section 1(b), Employer shall pay Executive a lump
sum severance payment (the "Severance Payment") equal to [THREE] times
Executive's Annual Compensation as in effect prior to the Change in Control.
(b) Executive shall only be entitled to the Severance Payment
if: (i) the Company has undergone a Change in Control prior to the fifth
anniversary of the date of this Agreement; and (ii) Executive makes himself
immediately available for continued employment by the Company's successor in
interest in such Change in Control; and (iii) (A) such successor in interest
elects not to continue Executive's employment in connection with such Change in
Control or (B) prior to the first anniversary of such Change in Control,
Executive's employment with the Employer is terminated by the Employer without
Cause or Executive resigns from the Employer with Good Reason; and (iv)
Executive executes a general release of the Employer in the form attached hereto
as Annex A. For the avoidance of doubt, if Executive's employment with the
Employer terminates under any other circumstances, including by reason of death,
disability, retirement, resignation without Good Reason or termination by the
Employer for Cause, Executive shall not be entitled to any severance payment
whatsoever.
(c) The Employer shall pay the Severance Payment to Executive
in cash or wire transfer of immediately available funds within 30 days of the
termination of his employment under the
1
2
circumstances contemplated by Section 1(b). If Executive dies after such
termination but before the Severance Payment is paid in full, Employer shall pay
the Severance Payment to Executive's legal heir or estate. The Severance Payment
shall be subject to all required tax withholding by the Employer.
(d) In addition to the payment provided under Section 1(a)
hereof, if Executive's employment with the Employer is terminated under the
circumstances contemplated by Section 1(b), all outstanding stock options
previously granted to Executive, and not yet expired, will become fully and
immediately vested and exercisable by Executive on the date of termination of
Executive's employment with Employer and for such period of time thereafter as
shall be permitted pursuant to the applicable stock option plan and stock award
agreements.
2. No Guarantee of Employment. Executive hereby acknowledges
and agrees that nothing in this Agreement constitutes a guarantee or assurance
of continued employment with the Employer and that his only rights under this
Agreement are to payment of the Severance Payment and immediate vesting of stock
options in accordance with the terms of this Agreement.
3. Certain Definitions. The following capitalized terms used
in this Agreement have the meanings set forth below:
(a) "Annual Compensation" means Executive's annual base salary
as in effect immediately prior to the Change in Control, plus an amount equal to
all other amounts paid to Executive as wages, bonuses, commissions, profit
sharing or other cash compensation for services rendered during the twelve month
period immediately prior to the Change in Control.
(b) "Cause" means (i) the commission of a felony or other
crime involving moral turpitude or the commission of any other act or omission
involving dishonesty, disloyalty or fraud with respect to the Employer or any of
its Subsidiaries or any of their customers or suppliers, (ii) reporting to work
under the influence of alcohol or illegal drugs, the use of illegal drugs
(whether or not at the workplace) or other repeated conduct causing the Employer
or any of its Subsidiaries substantial public disgrace or disrepute or economic
harm, or (iii) substantial and repeated failure to perform duties as reasonably
directed by the Employer's Board of Directors.
(c) a "Change in Control" shall be deemed to have occurred if
the conditions set forth in any one of the following paragraphs shall have been
satisfied:
(i) any "person" (as such term is used in Section 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) other than (i) the Company, (ii) a trustee or other fiduciary
holding securities under an employee benefit plan of the Company, (iii)
an underwriter temporarily holding securities pursuant to an offering
of such securities, or (iv) a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of shares of the Company (any such
person is hereinafter referred to as a "Person"), is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company (not including in
the securities beneficially owned by such Person any securities
acquired directly from the Company) representing 20% or more of the
combined voting
2
3
power of the Company's then outstanding securities and GLC holds
beneficial ownership, directly or indirectly, of securities of the
Company representing less than 51% of the combined voting power of the
Company's then outstanding securities excluding any Person who becomes
such a beneficial owner in connection with a transaction described in
clause (A) of paragraph (ii) below;
(ii) there is consummated a merger or consolidation of the
Company or any direct or indirect subsidiary of the Company with or
into any other corporation, other than (A) a merger or consolidation
which results in the directors of the Company immediately prior to such
merger or consolidation continuing to constitute at least a majority of
the Board of Directors of the Company, the surviving entity or any
parent thereof or (B) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which (x)
GLC retains beneficial ownership, directly or indirectly of at least
51% of the voting power of the Company's then outstanding securities,
or (y) no Person is or becomes the beneficial owner, directly or
indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired
directly from the Company) representing 20% or more of the combined
voting power of the Company's then outstanding securities (regardless
of whether GLC continues to own beneficial ownership of any of the
Company's securities);
(iii) the stockholders of the Company approve any plan or
proposal for the liquidation or dissolution of the Company or there is
consummated an agreement for the sale or disposition by the Company of
all or substantially all the Company's assets, other than a sale or
disposition by the Company of all or substantially all of the Company's
assets to an entity, at least a majority of whose directors were
directors of the Company immediately prior to such sale or disposition;
or
(iv) during any period of two consecutive years (not including
any period prior to the date of this Agreement), individuals who at the
beginning of such period constitute the Board of Directors of the
Company and any new director (other than a director whose initial
assumption of office is in connection with an actual or threatened
election contest, including but not limited to a consent solicitation,
relating to the election of directors of the Company) whose appointment
or election by the Board of Directors of the Company or nomination for
election by the Company's stockholders was approved or recommended by a
vote of at least two-thirds (2/3) of the directors then still in office
who either were directors at the beginning of the period or whose
appointment, election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof.
Where a Change in Control results from a series of related
transactions, the Change in Control shall be deemed to have occurred on the date
of the consummation of the first such transaction.
Notwithstanding any other provision hereof, a Change in Control shall
not be deemed to have occurred by virtue of the consummation of any transaction
or series of integrated transactions immediately following which the record
holders of the common stock of the Company immediately prior to such transaction
or series of transactions continue to have substantially the same
3
4
proportionate ownership in an entity which owns all or substantially all of the
assets of the Company immediately following such transaction or series of
transactions.
(d) Executive shall be deemed to have terminated his
employment with the Employer with "Good Reason" if, prior to such termination:
(i) the Employer has reduced Executive's base salary or rate
of compensation as in effect immediately prior to the Change in
Control; or
(ii) the Employer has assigned Executive duties and
responsibilities substantially different than those in effect
immediately prior to the Change in Control; or
(iii) the Employer requires Executive to change the location
of his job or office to a location more than 40 miles from the location
in effect immediately prior to the Change in Control provided that such
new location is not closer to Executive's primary residence; or
(iv) the Employer fails to provide Executive with pension
plans, 401(k) plans, life insurance plans, health, accident or
disability plans, or other health, welfare and retirement benefits
materially equal to those in effect immediately prior to the Change in
Control.
(e) "GLC" means Great Lakes Chemical Corporation, a Delaware
corporation.
(f) "Subsidiary" means any corporation or other entity of
which the securities or other ownership interests having the voting power to
elect a majority of the board of directors or other governing body are, at the
time of determination, owned by the Employer, directly or through one of more
Subsidiaries.
4. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any action in any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
5. Complete Agreement. Subject to any rights of Executive
pursuant to applicable law, applicable benefit plans and stock award agreements,
this Agreement embodies the complete agreement and understanding among the
parties and supersedes and preempts any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way (including, without limitation, the
Original Agreement [AND THE TRANSITION PAYMENT AGREEMENT WHERE APPLICABLE]
between the parties hereto, dated [_______]).
4
5
6. No Strict Construction. The language used in this Agreement
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
7. Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
8. Successors and Assigns. This Agreement is intended to bind
and inure to the benefit of and be enforceable by Executive, the Company and
their respective heirs, successors and assigns, except that Executive may not
assign his rights or delegate his duties or obligations hereunder without the
prior written consent of the Company.
9. Choice of Law. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement and the
annex attached hereto shall be governed by, and construed in accordance with,
the laws of the State of Delaware, without giving effect to any choice of law or
conflict of law rules or provisions (whether of the State of Delaware or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
10. Amendment and Waiver. The provisions of this Agreement may
be amended or waived only with the prior written consent of the Employer and
Executive, and no course of conduct or course of dealing or failure or delay by
any party hereto in enforcing or exercising any of the provisions of this
Agreement shall affect the validity, binding effect or enforceability of this
Agreement or be deemed to be an implied waiver of any provision of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Change in Control Agreement as of the date first written above.
OSCA, INC.
___________________________________________
By:
Its:_______________________________________
EXECUTIVE
___________________________________________
By:
5
6
Annex A
GENERAL RELEASE
I, [__________], in consideration of and subject to the performance by
OSCA, Inc., a Delaware corporation or its successor in interest (together with
its subsidiaries, the "Company"), of its material obligations under the Amended
and Restated Change in Control Agreement, dated as of _________________, 2000
(the "Agreement"), do hereby release and forever discharge as of the date hereof
the Company and all present and former directors, officers, agents,
representatives, employees, successors and assigns or predecessors of the
Company and its direct or indirect owners (collectively, the "Released Parties")
to the extent provided below.
1. I understand that any payments or benefits paid or granted to me under
Section 1 of the Agreement represent, in part, consideration for
signing this General Release and are not salary, wages or benefits to
which I was already entitled. I understand and agree that I will not
receive the payments and benefits specified in Section 1 of the
Agreement unless I execute this General Release and do not revoke this
General Release within the time period permitted hereafter or breach
this General Release.
2. Except as provided in paragraph 4 below, I knowingly and voluntarily
release and forever discharge the Company and the other Released
Parties from any and all claims, controversies, actions, causes of
action, cross-claims, counter-claims, demands, debts, compensatory
damages, liquidated damages, punitive or exemplary damages, other
damages, claims for costs and attorneys' fees, or liabilities of any
nature whatsoever in law and in equity, both past and present (through
the date of this General Release) and whether known or unknown,
suspected, or claimed against the Company or any of the Released
Parties which I, my spouse, or any of my heirs, executors,
administrators or assigns, may have, which arise out of or are
connected with my employment with, or my separation from, the Company
(including, but not limited to, any allegation, claim or violation,
arising under: Title VII of the Civil Rights Act of 1964, as amended;
the Civil Rights Act of 1991; the Age Discrimination in Employment Act
of 1967, as amended (including the Older Workers Benefit Protection
Act); the Equal Pay Act of 1963, as amended; the Americans with
Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the
Civil Rights Act of 1866, as amended; the Worker Adjustment Retraining
and Notification Act; the Employee Retirement Income Security Act of
1974; any applicable Executive Order Programs; the Fair Labor Standards
Act; or their state or local counterparts; or under any other federal,
state or local civil or human rights law, or under any other local,
state, or federal law, regulation or ordinance; or under any public
policy, contract or tort, or under common law; or arising under any
policies, practices or procedures of the Company; or any claim for
wrongful discharge, breach of contract, infliction of emotional
distress, defamation; or any claim for costs, fees, or other expenses,
including attorneys' fees incurred in these matters) (all of the
foregoing collectively referred to herein as the "Claims").
A-1
7
3. I represent that I have made no assignment or transfer of any right,
claim, demand, cause of action, or other matter covered by paragraph 2
above.
4. I agree that this General Release does not waive or release any (i)
rights or claims that I may have under the Age Discrimination in
Employment Act of 1967 which arise after the date I execute this
General Release; or (ii) any claims with respect to accrued benefits
under employee benefit plans maintained by the Company or any claims
arising from the Company's obligation to provide any benefits (other
than severance benefits) to which I may be entitled under applicable
plan provisions (as amended from time to time) based on the date of
termination of employment with the Company. In addition, the release of
all claims shall not affect currently pending workers compensation
proceedings or claims, nor the right of either party to enforce the
terms of the Agreement and this General Release. I acknowledge and
agree that my separation from employment with the Company in compliance
with the terms of the Agreement shall not serve as the basis for any
claim or action (including, without limitation, any claim under the Age
Discrimination in Employment Act of 1967).
5. In signing this General Release, I acknowledge and intend that it shall
be effective as a bar to each and every one of the Claims hereinabove
mentioned or implied. I expressly consent that this General Release
shall be given full force and effect according to each and all of its
express terms and provisions, including those relating to unknown and
unsuspected Claims (notwithstanding any state statute that expressly
limits the effectiveness of a general release of unknown, unsuspected
and unanticipated Claims), if any, as well as those relating to any
other Claims hereinabove mentioned or implied. I acknowledge and agree
that this waiver is an essential and material term of this General
Release and that without such waiver the Company would not have agreed
to the terms of the Agreement. I further agree that in the event I
should bring a Claim seeking damages against the Company, or in the
event I should seek to recover against the Company in any Claim brought
by a governmental agency on my behalf, this General Release shall serve
as a complete defense to such Claims. I further agree that I am not
aware of any pending charge or complaint of the type described in
paragraph 2 as of the execution of this General Release.
6. I agree that neither this General Release, nor the furnishing of the
consideration for this General Release, shall be deemed or construed at
any time to be an admission by the Company, any Released Party or
myself of any improper or unlawful conduct.
7. I agree that I will forfeit all amounts payable by the Company pursuant
to the Agreement if I challenge the validity of this General Release. I
also agree that if I violate this General Release by suing the Company
or the other Released Parties for claims waived by this General
Release, I will pay all costs and expenses of defending against the
suit incurred by the Released Parties, including reasonable attorneys'
fees, and return all payments received by me pursuant to the Agreement.
8. I agree that this General Release is confidential and agree not to
disclose any information regarding the terms of this General Release,
except to my immediate family and any tax, legal or other counsel I
have consulted regarding the meaning or effect hereof or as required by
law, and I will instruct each of the foregoing not to disclose the same
to anyone.
A-2
8
9. Any non-disclosure provision in this General Release does not prohibit
or restrict me (or my attorney) from responding to any inquiry about
this General Release or its underlying facts and circumstances by the
Securities and Exchange Commission (SEC), the National Association of
Securities Dealers, Inc. (NASD), any other self-regulatory organization
or governmental entity.
10. I agree to reasonably cooperate with the Company in any internal
investigation or administrative, regulatory, or judicial proceeding. I
understand and agree that my cooperation may include, but not be
limited to, making myself available to the Company upon reasonable
notice for interviews and factual investigations; appearing at the
Company's request to give testimony without requiring service of a
subpoena or other legal process; volunteering to the Company pertinent
information; and turning over to the Company all relevant documents
which are or may come into my possession all at times and on schedules
that are reasonably consistent with my other permitted activities and
commitments. I understand that in the event the Company asks for my
cooperation in accordance with this provision, the Company will
reimburse me solely for reasonable travel expenses, including lodging
and meals, upon my submission of receipts.
11. Notwithstanding anything in this General Release to the contrary, this
General Release shall not relinquish, diminish, or in any way affect
any rights or claims arising out of any breach by the Company or by any
Released Party of the Agreement.
12. Whenever possible, each provision of this General Release shall be
interpreted in, such manner as to be effective and valid under
applicable law, but if any provision of this General Release is held to
be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality
or unenforceability shall not affect any other provision or any other
jurisdiction, but this General Release shall be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
(a) I HAVE READ IT CAREFULLY;
(b) I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT
RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE
DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE
CIVIL RIGHTS ACT OF 1964, AS AMENDED; THE EQUAL PAY ACT OF 1963, THE
AMERICANS WITH DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED;
(c) I VOLUNTARILY CONSENT TO EVERYTHING IN IT;
A-3
9
(d) I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND
I HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION I HAVE
CHOSEN NOT TO DO SO OF MY OWN VOLITION;
(e) I HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE
SUBSTANTIALLY IN ITS FINAL FORM ON _______________ __, _____ TO
CONSIDER IT AND THE CHANGES MADE SINCE THE _______________ __, _____
VERSION OF THIS RELEASE ARE NOT MATERIAL AND WILL NOT RESTART THE
REQUIRED 21-DAY PERIOD;
(f) THE CHANGES TO THE AGREEMENT SINCE _______________ ___, _____ EITHER
ARE NOT MATERIAL OR WERE MADE AT MY REQUEST.
(g) I UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS RELEASE
TO REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR
ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS EXPIRED;
(h) I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH
THE ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND
(i) I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED,
WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED
BY AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME.
DATE: _____________, ______ ______________________________
A-4
