AMENDED AND RESTATED EXECUTIVE EMPLOYMENT CONTRACT
Exhibit 10.2
AMENDED AND RESTATED
THIS AMENDED AND RESTATED EXECUTIVE EMPLOYMENT CONTRACT (the “Amended Agreement”), made and
entered into as of the 27th day of October, 2008, amends and restates the Executive Employment
Contract dated as of December 1, 2005, as amended and restated as of August 17, 2007 (the “Prior
Agreement”), by and between Sensient Technologies Corporation, a Wisconsin corporation (hereinafter
referred to as the “Company”), and Xxxxxxx X. Xxxxxxx (hereinafter referred to as “Executive”);
WITNESSETH :
WHEREAS, the Executive is presently employed by the Company as its Chief Executive Officer and
Chairman of the Board of Directors of the Company (the “Board”);
WHEREAS, the Board recognizes that the Executive’s contribution to the growth and success of
the Company has been substantial;
WHEREAS, the Board desires to make certain changes to the Prior Agreement in accordance with
available guidance under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)
relating to certain payments and benefits provided under this Agreement;
WHEREAS, the Executive and the Company intend that this Amended Agreement shall supersede and
replace the Prior Agreement;
WHEREAS, the Executive and the Company intend that in the event of a Change of Control (as
defined in the Amended and Restated Change of Control Severance and Employment Agreement, made and
entered into as of November 11, 1999, as amended, by and between the Executive and the Company (the
“Change of Control Agreement”)), this Amended Agreement shall be superseded and replaced by the
Change of Control Agreement; and
WHEREAS, the Executive is willing to commit himself to continue to serve the Company, on the
terms and conditions herein provided;
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements
hereinafter set forth, the parties hereto mutually covenant and agree as follows:
1. Employment. The Company hereby agrees to continue to employ the Executive, and the
Executive hereby agrees to continue to serve the Company, on the terms and conditions set forth
herein.
2. Term. The employment of the Executive by the Company as provided in Section 1 of
this Agreement will commence on the date hereof and end immediately following the Company’s 2011
Annual Meeting of Shareholders to be held on April 21, 2011, unless further extended by mutual
agreement or sooner terminated as hereinafter provided (the “Employment Period”).
3. Position and Duties.
(a) Until the Company’s Annual Meeting of Shareholders to be held on April 22, 2010, and
unless otherwise mutually agreed, the Executive shall serve as Chief Executive Officer of the
Company and the Chairman of the Board and shall have such responsibilities and authority as may
from time to time be assigned to the Executive by the Company’s Board of Directors consistent with
his position as Chief Executive Officer of the Company and Chairman of the Board. During the
remainder of the Employment Period and unless otherwise mutually agreed, the Executive shall serve
as the Chairman of the Board and shall have such responsibilities and authority as may from time to
time be assigned to the Executive by the Company’s Board of Directors consistent with his position
as Chairman of the Board.
(b) During the Employment Period, and excluding any periods of vacation and sick leave to
which the
Executive is entitled, the Executive shall devote substantially all his working time and efforts
during normal business hours to the business and affairs of the Company and, to the extent
necessary to discharge the
responsibilities assigned to the Executive under this Agreement, use the
Executive’s reasonable best efforts to carry out such responsibilities faithfully and efficiently.
It shall not be considered a violation of the foregoing for the Executive to (A) serve on
corporate, civic or charitable boards or committees, (B) deliver lectures, fulfill speaking
engagements or teach at educational institutions and (C) manage personal investments, so long as
such activities do not significantly interfere with the performance of the Executive’s
responsibilities as an employee of the Company in accordance with this Amended Agreement or
otherwise violate the provisions of Section 14.
4. Place of Performance. In connection with the Executive’s employment by the Company,
the Executive shall be based in Milwaukee, Wisconsin (at the principal executive offices of the
Company) except for required travel on the Company’s business to an extent substantially consistent
with his present business travel obligations.
5. Compensation and Related Matters.
(a) Base Salary. Except as provided below, during the Employment Period, the Company
shall pay to the Executive a salary at a rate of $ per annum pursuant to the Company’s
normal payroll practices (the “Base Salary”). The Base Salary shall be reviewed on or before
January 1 of each year following the date of this Amended Agreement, while this Amended Agreement
remains in force, to ascertain whether in the judgment of the Board or such Committee to whom the
Board may have delegated authority, such Base Salary should be adjusted. Any adjustment shall occur
only by mutual agreement of the Company (acting with the approval of the Compensation Committee)
and the Executive. If so adjusted, the term Base Salary as utilized in this Amended Agreement shall
refer to the Base Salary as so adjusted. Compensation of the Executive by salary payments shall not
be deemed exclusive and shall not prevent the Executive from participating in any other
compensation or benefit plan of the Company. The Base Salary payments (including any adjusted
salary payments) hereunder shall not in any way limit or reduce any other obligation of the Company
hereunder, and no other compensation, benefit or payment hereunder shall in any way limit or reduce
the obligation of the Company to pay the Executive’s Base Salary hereunder.
(b) Annual Bonus. In addition to the annual Base Salary, the Executive shall be
eligible to be awarded, for each fiscal year or portion of a fiscal year ending during the
Employment Period, an annual bonus (the “Annual Bonus”) pursuant to the terms of the Company’s
Incentive Compensation Plan for Elected Corporate Officers, or any successor or replacement plan.
(c) Expenses. During the Employment Period, the Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by the Executive in performing services
hereunder, including all expenses of travel and living expenses while away from home on business or
at the request of and in the service of the Company, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by the Company.
(d) Other Benefits. During the Employment Period: (i) the Executive shall be entitled
to participate in incentive, savings and retirement plans, practices, policies and programs of the
Company to an extent no less favorable than the participation provided generally to other senior
executives of the Company; and (ii) the Executive and/or the Executive’s family, as the case may
be, shall be eligible for participation in, and shall receive benefits under, welfare benefit
plans, practices, policies and programs provided by the Company (including, without limitation,
medical, prescription, dental, disability, employee life insurance, group life insurance,
accidental death and travel accident insurance plans and programs) to an extent no less favorable
than the participation and benefits provided to other senior executives of the Company (and/or
their families).
(e) Vacation. During the Employment Period, the Executive shall be entitled to paid
vacation that is no less favorable than the paid vacation provided generally to other senior
executives of the Company and to all paid holidays given by the Company to its other senior
executives.
(f) Office and Support Staff. During the entire term of this Amended Agreement, the
Company shall furnish the Executive with office space, secretarial assistance and such other
facilities and services as shall be suitable to the Executive’s position and adequate for the
performance of his duties as set forth in Section 3.
(g) Fringe Benefits. During the Employment Period, the Executive shall be entitled to
fringe benefits and perquisites, which shall be no less favorable than the fringe benefits and
perquisites provided generally to other
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senior executives of the Company.
6. Offices. The Executive agrees to serve without additional compensation, if elected
or appointed thereto, as a director of the Company and any of its subsidiaries and in one or more
executive offices of any of the Company’s subsidiaries, provided that the Executive is indemnified
for serving in any such capacities on a basis no less favorable than is currently provided by the
Company’s By-laws.
7. Death. If the Executive shall die during the Employment Period but prior to the
delivery of a Notice of Termination (as hereinafter defined) by the Company or by the Executive for
Good Reason (as hereinafter defined), the Company shall pay the Executive’s estate or legal
representative, within thirty days following the Executive’s Date of Termination (as hereinafter
defined), a lump sum payment equal to the sum of: (1) the accrued but unpaid portion of the
Executive’s annual Base Salary through the Date of Termination (i.e., the portion of the Base
Salary for the period before Executive’s death that remains unpaid), (2) the value of the
Executive’s accrued, but unused, vacation days (based on the Executive’s annual Base Salary) and
(3) the product of (x) the average annual bonus earned by the Executive for the three years
immediately prior to the year in which the Date of Termination occurs and (y) a fraction, the
numerator of which is the number of full and partial months in the fiscal year in which the Date of
Termination occurs through the Date of Termination, and the denominator of which is twelve, in each
case to the extent not theretofore paid (the “Bonus Amount”), and the Company shall have no further
obligations to pay other benefits under this Amended Agreement. The amounts described in clauses
(1), (2) and (3) shall be hereinafter referred to as the “Accrued Obligations.”
8. Disability.
(a) If during the Employment Period, the Executive is determined by the Company to have a
Disability, the Company shall pay the Executive (1) within thirty days following the Executive’s
Disability determination, a lump sum payment of the Accrued Obligations and (2) commencing on the
Executive’s Disability determination until April 21, 2011 or the termination of his Disability,
whichever is first to occur, such amounts which an individual in his earnings category would be
normally entitled to receive as full Long Term Disability (“LTD”) coverage under the Company LTD
plan then in effect, but not less than 60% of his Base Salary as determined under Section 5(a) at
the time of the Executive’s Disability determination. During the term of his Disability, the
Executive also shall receive the employee benefits (or service credits therefor, as the case may
be) he would have been entitled to receive, as provided in Section 5(d) (other than under incentive
plans). The obligation to provide the foregoing disability benefits shall survive the termination
of this Amended Agreement provided the Disability was incurred before termination, and the Company
shall have no further obligations to pay compensation or benefits under this Amended Agreement.
(b) For purposes of this Amended Agreement, “Disability” means that (i) the Executive is
unable to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months; or (ii) the Executive is, by reason of any
medically determinable physical or mental impairment that can be expected to result in death or can
be expected to last for a continuous period of not less than 12 months, receiving income
replacement benefits for a period of not less than 3 months under an accident and health plan
covering the Executive. The Company’s determination that the Executive has a Disability shall be
communicated to the Executive by written notice, and shall be effective on the 30th day after
receipt of such notice by the Executive (the “Disability Effective Date”), unless the Executive
returns to full-time performance of the Executive’s duties before the Disability Effective Date.
The determination of Disability shall be made by a physician selected by the Company or its
insurers and acceptable to the Executive or the Executive’s legal representative.
9. Termination by the Company.
(a) Termination for Cause. The Executive’s employment may be terminated by the Board
at any time for Cause which shall be defined to mean (I) conviction of the Executive of any act of
fraud, theft or embezzlement or (II) the
commission of any of the following acts by the Executive which is substantially injurious to the
Company: dishonesty, gross misconduct, willful disclosure of trade secrets, gross dereliction of
duty or other grave misconduct on the part of the Executive.
The Executive shall not be deemed to have been terminated for Cause without (i) reasonable
notice to the
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Executive setting forth the reasons for the Company’s intention to terminate for
Cause, (ii) an opportunity for the Executive, together with his counsel, to be heard before the
Board and (iii) delivery to the Executive of a Notice of Termination from the Board finding that in
the good faith opinion of the Board the Executive was guilty of conduct set forth above in this
Section 9(a), and specifying the particulars thereof in detail. In the event the Executive’s
employment is terminated for Cause, the Executive shall be entitled to his accrued and unpaid Base
Salary through the Date of Termination and shall forfeit his right to any and all compensation and
benefits he would otherwise have been entitled to receive under this Amended Agreement.
(b) Termination without Cause. The Company has the right to terminate the employment
of the Executive without Cause, upon at least thirty days’ prior written notice, if such
termination is approved by a majority vote of the Board taken at a meeting duly called to consider
such matter. In the event of termination of the Executive’s employment pursuant to this Section
9(b), the Company shall provide the Executive with the following “Termination Benefits,” and the
Company shall have no further obligations to pay compensation or benefits under this Amended
Agreement:
(i) a lump sum cash payment, within thirty days following the Date of Termination, equal to
the sum of: (A) the Accrued Obligations, and (B) the product of (1) three and (2) the sum of the
Base Salary, plus the higher of Executive’s most recent annual bonus or Executive’s target bonus
for the year in which the Date of Termination occurs (if no target bonus has been set for such
year, the Executive’s target bonus for the prior year shall be used);
(ii) the Executive shall be credited with three additional years of service for purposes of
calculating his retirement benefit under any supplemental or excess retirement plan of the Company
in which he was a participant as of the Date of Termination;
(iii) from the Date of Termination until 36 months following the end of the month in which the
Date of Termination occurs, the Company shall continue benefits to the Executive (and/or the
Executive’s family) at least equal to those which would have been provided to them in accordance
with the plans, programs, practices and policies described in Section 5(d)(ii) if the Executive’s
employment had not been terminated or, if more favorable to the Executive, as in effect generally
at any time thereafter with respect to other senior executives of the Company (and their families)
(in addition, if the Executive is eligible for “COBRA” continuation health coverage under Section
4980B of the Internal Revenue Code of 1986, as amended (or any successor provision), such coverage
shall commence upon the end of the coverage for the severance period); provided, however, that if
any of the welfare benefits provided during the period the Executive is considered a “specified
employee” or “key employee” under Section 23 of this Agreement are not subject to an exemption
under Section 409A of the Code, such benefits will be provided at the Executive’s cost subject to
reimbursement during any such period; and provided further, however, if the Executive becomes
reemployed with another employer and is eligible to receive medical or other welfare benefits under
another employer-provided plan, the medical and other welfare benefits described herein shall be
secondary to those provided under such other plan during such applicable period of eligibility; and
(iv) the Executive shall be credited with three additional years of service and age for
purposes of eligibility for retiree health benefits under any retiree health plan maintained by the
Company.
10. Termination by the Executive.
(a) Without Good Reason. The Executive has the right to terminate his employment at
any time without Good Reason upon no less than thirty days’ prior written notice delivered to the
Company. If the Executive terminates his employment during the Employment Period for any reason
other than Disability or Good Reason, the Company shall pay a lump sum payment to the Executive of
the Accrued Obligations (other than the Bonus Amount), and the Company shall have no further
obligations to pay compensation or benefits under this Amended Agreement.
(b) For Good Reason. The Executive has the right to terminate his employment for Good
Reason upon thirty
days’ prior written notice delivered to the Company within 120 days of the occurrence of one of the
events set forth below. For purposes of this Amended Agreement, “Good Reason” shall mean, without
the Executive’s written consent:
(i) any reduction in the Executive’s Base Salary;
(ii) the assignment to the Executive of any duties inconsistent with, or the reduction of
powers or functions
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associated with, his positions, duties, responsibilities and status with the
Company set forth in Section 3;
(iii) the Company’s mandatory transfer of the Executive to another geographic location other
than a location within 35 miles of Milwaukee, Wisconsin or to a location other than the Company’s
principal executive offices, except for required travel on the Company’s business to an extent
substantially consistent with the Executive’s business travel obligations as of the date hereof; or
(iv) any other material breach of this Amended Agreement by the Company.
An isolated, insubstantial and inadvertent action not taken in bad faith, and which is
remedied by the Company within ten days after notice from the Executive, shall not be treated as
Good Reason under this Amended Agreement. In the event of a termination of employment by the
Executive for Good Reason during the Employment Period, the Executive shall be provided with the
Termination Benefits set forth in Section 9(b) hereof.
In the event that the Executive shall in good faith give a Notice of Termination (as
hereinafter defined) for Good Reason and it shall thereafter be determined that Good Reason did not
exist, the employment of the Executive hereunder shall, at the Executive’s option, continue after
such determination; provided, that the Executive continued his employment during the dispute
concerning his alleged Good Reason pursuant to his option to do so as provided in Section 11 and
provided further, that in no event shall such employment extend beyond the Employment Period. If
the Executive does not choose to continue his employment hereunder after such determination, the
employment of the Executive shall be deemed to have terminated at the date of giving such purported
Notice of Termination by mutual consent of the Company and the Executive; provided, however, that
if the Executive exercises his option to continue his employment during the period of dispute
concerning his alleged Good Reason as provided in Section 11, the Executive shall be entitled to
compensation and benefits during such continued employment in accordance with Section 5 of this
Amended Agreement.
11. Notice of Termination; Date of Termination.
(a) Notice of Termination. Any termination of the Executive’s employment by the
Company under Section 9 or by the Executive under Section 10 shall be communicated by written
Notice of Termination to the other party hereto. For purposes of this Amended Agreement, a “Notice
of Termination” shall mean a notice which shall indicate the specific termination provision in this
Amended Agreement relied upon and the date of the Executive’s termination and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for termination of the
Executive’s employment under the provision so indicated. In the event that one party notifies the
other that a dispute exists concerning the termination of the Executive’s employment, the
Executive’s employment under this Amended Agreement shall, at the Executive’s option, not be
terminated until such dispute is finally resolved either by mutual written agreement of the parties
or in accordance with Section 16, as the case may be; provided, however, that in no event shall
such employment extend beyond the Employment Period.
(b) Date of Termination. The Executive’s “Date of Termination” shall mean: (i) in the
event of his death, the date of death; (ii) in the event of his Disability, the Disability
Effective Date; and (iii) in the event of any other termination of employment, the date specified
in the Notice of Termination.
12. Non-exclusivity of Rights. Nothing in this Amended Agreement shall prevent or
limit the Executive’s continuing or future participation in any plan, program, policy or practice
provided by the Company for which the Executive may qualify, nor, subject to Section 24, shall
anything in this Amended Agreement limit or otherwise affect such rights as the Executive may have
under any contract or agreement with the Company. Accrued benefits and other amounts that the
Executive is otherwise entitled to receive under any plan, policy, practice or program of, or any
contract or agreement with, the Company on or after the Date of Termination shall be payable in
accordance with such plan, policy, practice, program, contract or agreement, as the case may be,
except as explicitly modified
by this Amended Agreement.
13. Interest and Costs. In the event that any payments due to the Executive hereunder
shall fail to be paid when due, such unpaid amounts shall bear interest at the rate of 8% per annum
and if such unpaid amounts are collected by law or through an attorney-at-law, the Executive shall
also be entitled to collect reasonable attorneys’ fees and all costs of collection. Within ten (10)
days after the Executive’s written request therefor, the Company shall pay to the
Executive, or such other person or entity as the Executive may designate in writing to the Company,
such reasonable
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attorneys’ fees and costs of collection in advance of the final disposition or
conclusion of any dispute, legal or arbitration proceeding with respect to such collection.
14. Noncompetition; Nonsolicitation and Confidential Information.
(a) During the Employment Period, Executive shall not provide any assistance to any competitor
of the Company. In addition, for a period of one year after the later of the Executive’s Date of
Termination or the date Executive ceases to serve as Chairman of the Board (the “Noncompetition
Period”), the Executive shall not, except as permitted by the Company’s prior written consent,
engage in, be employed by, or in any way advise or act for, any business which is a competitor of
the Company in any capacity that involves assisting the competitor with respect to competing
against the Company in any market in which, at the beginning of the Noncompetition Period, the
Company either is selling or marketing any of its products or is actively planning to begin selling
or marketing any of its products. Notwithstanding the foregoing, this Section 14(a) shall not apply
during the Noncompetition Period if the Executive’s employment is terminated without Cause or the
Executive terminates his employment for Good Reason.
(b) During the Noncompetition Period, other than on behalf of the Company, the Executive shall
not induce or solicit any employee of the Company to terminate his or her employment.
(c) The Executive shall hold in a fiduciary capacity for the benefit of the Company all secret
or confidential information, knowledge or data relating to the Company and its respective
businesses that the Executive obtains during the Executive’s employment by the Company and that is
not public knowledge (other than as a result of the Executive’s violation of this Section 14(c)
(“Confidential Information”)). For so long as any piece of Confidential Information is sensitive
and/or of economic value to the Company, the Executive shall not communicate, divulge or
disseminate any such piece of Confidential Information outside the Company, except with the prior
written consent of the Company or as otherwise required by law or legal process.
(d) All computer software, business cards, telephone lists, customer lists, price lists,
contract forms, catalogs, the Company books, records, files and know-how acquired while the
Executive is an employee of the Company are acknowledged to be the property of the Company and
shall not be duplicated, removed from the Company’s possession or premises or made use of other
than in pursuit of the Company’s business or as may otherwise be required by law or any legal
process, or as is necessary in connection with any adversarial proceeding against the Company and,
upon termination of employment for any reason, the Executive shall deliver to the Company, without
further demands, the originals and all copies thereof which are then in his possession or under his
control.
(e) The provisions of Sections 14(a), (b), (c) and (d) shall remain in full force and effect
until the expiration of the period specified herein notwithstanding the earlier termination of the
Executive’s employment hereunder. In the event of a breach of the Executive’s covenants under this
Section 14, it is understood and agreed that the Company shall be entitled to injunctive relief, as
well as any other legal remedies. For purposes of this Section 14, the “Company” shall include all
entities controlling, controlled by or under common control with the Company.
15. Resolution of Disputes. Any dispute arising out of this Amended Agreement shall,
at the Executive’s option, be determined by arbitration under the rules of the American Arbitration
Association then in effect, other than any requests for injunctive relief under Section 14(e), or
by litigation. Whether the dispute is to be settled by arbitration or litigation, the venue for the
arbitration or litigation shall be Milwaukee, Wisconsin or, if the Executive is no longer residing
or working in Milwaukee, Wisconsin, such venue shall, at the Executive’s election, be the city in
which the Executive resides. More specifically, if litigation is the method for settling any such
dispute, venue for the litigation shall be in the Circuit Court of Milwaukee County or, if the
Executive is no longer residing or working in Milwaukee, Wisconsin, such venue shall, at the
Executive’s election, be the county court for the county in which the Executive resides. The
parties consent to jurisdiction in the selected venue notwithstanding their residence or situs.
16. Payment Obligations Absolute. The Company’s obligation during and after the term
of the Executive’s employment hereunder to pay the Executive the compensation and to make the
arrangements provided herein shall be absolute and unconditional and shall not be affected by any
circumstances, including, without limitation, any setoff, counterclaim, recoupment, defense or
other right which the Company may have against him or anyone else, except as provided in Section
9(b)(iii). All amounts payable by the Company hereunder shall be paid without notice (except as
provided in Section 12) or demand. The Company will not seek to recover all or any part of any such
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payment from the Executive or from whomsoever may be entitled thereto, for any reason whatsoever,
except as provided in Section 9(b)(iii).
17. Strict Compliance. The Executive’s or the Company’s failure to insist upon strict
compliance with any provision of, or to assert any right under, this Amended Agreement (including,
without limitation, the right of the Executive to terminate employment for Good Reason pursuant to
Section 10(b)) shall not be deemed to be a waiver of such provision or right or of any other
provision of or right under this Amended Agreement.
18. Successors; Binding Agreement.
(a) The Company will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of the
Company, by agreement in form and substance satisfactory to the Executive, to expressly assume and
agree to perform this Amended Agreement in the same manner and to the same extent that the Company
would be required to perform it if no such succession had taken place. Failure of the Company to
obtain such agreement prior to the effectiveness of any such succession shall be a breach of this
Amended Agreement. As used in this Amended Agreement, “Company” shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as aforesaid which executes
and delivers the agreement provided for in this Section 18 or which otherwise becomes bound by all
the terms and provisions of this Amended Agreement by operation of law.
(b) This Amended Agreement and all rights of the Executive hereunder shall inure to the
benefit of and be enforceable by the Executive’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. Except as otherwise
expressly provided in Sections 7 and 8 of this Amended Agreement, if the Executive should die while
any amounts would still be payable to him hereunder if he had continued to live, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of this Amended
Agreement to the Executive’s devisee, legatee, or other designee or, if there be no such designee,
to the Executive’s estate.
19. Notice. All notices, requests, demands and other communications required or
permitted to be given by either party to the other party by this Amended Agreement (including,
without limitation, any Notice of Termination of employment) shall be in writing and shall be
deemed to have been duly given when delivered personally or received by certified or registered
mail, return receipt requested, postage prepaid, at the address of the other party, as follows:
If to the Company, to:
Sensient Technologies Corporation
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Secretary
Sensient Technologies Corporation
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Secretary
If to Executive, to the last address for the Executive in the Company’s records.
Either party hereto may change its address for purposes of this Section 19 by giving fifteen
(15) days prior notice to the other party hereto.
20. Severability. If any term or provision of this Amended Agreement or the
application hereof to any person or circumstance shall to any extent be invalid or unenforceable,
the remainder of this Amended Agreement or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable shall not be
affected thereby, and each term and provision of this Amended Agreement shall be valid and
enforceable to the fullest extent permitted by law.
21. Headings. The headings in this Amended Agreement are inserted for convenience of
reference only and shall not be a part of or control or affect the meaning of this Amended
Agreement.
22. Governing Law. This Amended Agreement has been executed and delivered in the State
of Wisconsin and shall in all respects be governed by, and construed and enforced in accordance
with, the laws of the State of Wisconsin.
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23. Withholding Matters. All payments to be made or benefits to be provided hereunder
by the Company will be subject to required withholding of federal, state and local income and
employment taxes and related reporting requirements.
24. Section 409A of the Code. It is the intention of the parties that all payments
and benefits under this Agreement be exempt from, or if not so exempt, comply with Section 409A of
the Internal Revenue Code of 1986, as amended, and any guidance issued thereunder (the “Code”), and
the Agreement shall be interpreted, operated and administered accordingly. Notwithstanding
anything in this Agreement to the contrary, if Executive is considered a “specified employee” or
“key employee” of the Company and has experienced a “separation from service,” each within the
meaning of Section 409A of the Code, no payments or benefits under this Agreement that are
considered deferred compensation shall be made to Executive prior to the date that is six (6)
months after the date of Executive’s “separation from service” (or, if earlier, the Executive’s
date of death).
The Company shall indemnify the Executive if the Executive incurs additional tax under Section
409A of the Code as a result of a violation of Section 409A of the Code (each an “Indemnified
Section 409A Violation”) that occurs as a result of (1) the Company’s clerical error (other than an
error cause by erroneous information provided to the Company by the Executive), (2) the Company’s
failure to administer this Agreement or any benefit plan or program in accordance with its written
terms (such written terms, the “Plan Document”), or (3) following December 31, 2008, the Company’s
failure to maintain the Plan Documents in compliance with Section 409A of the Code; provided, that
the indemnification set forth in clause (3) shall not be available to the Executive if (x) the
Company has made a reasonable, good faith attempt to maintain the applicable Plan Document in
compliance with Code Section 409A but has failed to do so or (y) the Company has maintained the
applicable Plan Document in compliance with Section 409A of the Code but subsequent issuance by the
Internal Revenue Service or the Department of the Treasury of interpretive authority results in the
applicable Plan Document not (or no longer) complying with Section 409A of the Code (except that,
if the Company is permitted by such authority or other authority to amend the Plan Document to
bring the Plan Document into compliance with Section 409A of the Code and fails to do so, then such
indemnification shall be provided).
(i) In the event of an Indemnified Section 409A Violation, the Company shall
reimburse the Executive for (1) the 20% additional income tax described in Section
409A(a)(1)(B)(i)(II) of the Code (to the extent that the Executive incurs the 20%
additional income tax as a result of the Indemnified Section 409A Violation), and (2)
any interest or penalty that is assessed with respect to the Executive’s failure to
make a timely payment of the 20% additional income tax described in clause (1),
provided that the Executive pays the 20% additional income tax promptly upon being
notified that the tax is due (the amounts described in clause (1) and clause (2) are
referred to collectively as the “Section 409A Tax”).
(ii) In addition, in the event of an Indemnified Section 409A Violation, the
Company shall make a payment (the “Section 409A Gross-Up Payment”) to the Executive
such that the net amount the Executive retains, after paying any federal, state, or
local income tax or FICA tax on the Section 409A Gross-Up Payment, shall be equal to
the Section 409A Tax. The Executive shall reasonably cooperate with measures
identified by the Company that are intended to mitigate the Section 409A Tax to the
extent that such measures do not materially reduce or delay the payments and benefits
to the Executive hereunder.
25. Entire Agreement. This Amended Agreement supersedes any and all other oral or
written agreements heretofore made relating to the subject matter hereof (including, without
limitation, the Prior Agreement) other than
the Change of Control Agreement, and constitutes the entire agreement of the parties relating to
the subject matter hereof.
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IN WITNESS WHEREOF, the parties have executed this Amended Agreement as of the date first
written above.
| SENSIENT TECHNOLOGIES CORPORATION (“Company”) | ||||||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||||||
| Xxxxxxx X. Xxxxxx Vice President — Administration |
||||||||
| Attest: | /s/ Xxxx X. Xxxxxxx | |||||||
| EXECUTIVE | ||||||||
| /s/ Xxxxxxx X. Xxxxxxx | ||||||||
| Xxxxxxx X. Xxxxxxx | ||||||||
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