Exhibit 10.01
STRICTLY CONFIDENTIAL
EMPLOYMENT AGREEMENT
AGREEMENT by and between Park Merger Co., a Delaware corporation to
be renamed as C&K Witco Corporation (as so renamed, and together with its
successors and assigns permitted hereunder, the "Company"), Witco
Corporation, a Delaware corporation ("Witco") and E. ▇▇▇▇ ▇▇▇▇ (the
"Executive") dated as of the 31st day of May, 1999.
W I T N E S S E T H :
WHEREAS, the Executive is currently the Chairman of the
Board, President and Chief Executive Officer of Witco;
WHEREAS, pursuant to the Agreement and Plan of Reorganization dated
as of May 31, 1999 (the "Reorganization Agreement") among the Company,
Crompton & ▇▇▇▇▇▇▇ Corporation, a Massachusetts corporation ("C&K") and
Witco, it is contemplated that C&K will merge with and into the Company, with
the Company surviving, and immediately thereafter Witco will merge with and
into the Company, with the Company surviving (collectively, such mergers are
referred to herein as the "Merger");
WHEREAS, the Company, C&K and Witco have determined that it is in the
best interests of their respective shareholders to assure that Witco will have
the continued dedication of the Executive pending the completion of the Merger
and to provide the Company with continuity of management following the Merger.
Therefore, in order to accomplish these objectives, the Executive, Witco and the
Company desire to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, the Company, Witco and the Executive agree as
follows:
1. DEFINITIONS.
(a) "Affiliate" of a Person shall mean a Person that
directly or indirectly controls, is controlled by, or is under common control
with, the Person specified.
(b) "Agreement" shall mean this Employment Agreement,
together with Exhibit A annexed hereto.
(c) "Base Salary" shall mean the salary provided for in
Section 4 or any increased salary granted to the Executive pursuant to
Section 4.
(d) "Board" shall mean the Board of Directors of the
Company.
(e) "Cause" shall mean:
(i) the Executive is convicted of a felony
involving moral turpitude; or
(ii) the Executive engages in conduct that
constitutes willful gross neglect or willful gross misconduct in carrying out
his duties under this Agreement, resulting, in either case, in material economic
harm to the Company, unless the Executive believed in good faith that such
conduct was in, or not opposed to, the best interests of the Company.
(f) "Change in Control" shall mean the occurrence of any of
the following events after the Effective Date:
(i) any "person," as such term is currently used
in Section 13(d) of the Securities Exchange Act of 1934, as amended, becomes a
"beneficial owner," as such term is currently used in Rule 13d-3 promulgated
under that Act, of 20% or more of the Voting Stock of the Company;
(ii) a majority of the Board consists of
individuals other than Incumbent Directors, which term means the members of the
Board on the Effective Date; PROVIDED THAT any individual becoming a director
subsequent to such date whose election or nomination for election was supported
by two-thirds of the directors who then comprised the Incumbent Directors shall
be considered to be an Incumbent Director;
(iii) the Board adopts any plan of liquidation
providing for the distribution of all or substantially all of the
Company's assets;
(iv) all or substantially all of the assets or
business of the Company is disposed of pursuant to a merger, consolidation or
other transaction or series of transactions (unless the shareholders of the
Company immediately prior to such merger, consolidation or other transaction or
series of transactions beneficially own, directly or indirectly, in
substantially the same proportion as they owned the Voting Stock of the Company,
all of the Voting Stock of the entity or entities, if any, that succeed to the
business of the Company); or
(v) the Company combines with another company
and is the surviving corporation but, immediately after the
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combination, the shareholders of the Company immediately prior to the
combination hold, directly or indirectly, less than 51% of the Voting Stock of
the combined company, measured either by number of shares and other voting
securities or by number of votes entitled to be cast (there being excluded from
the Voting Stock deemed held by such shareholders, but not from the Voting Stock
of the combined company, any Voting Stock received by Affiliates of such other
company in exchange for securities of such other company).
(g) "Claim" shall mean any claim, demand, request,
investigation, dispute, controversy, threat, discovery request, or request
for testimony or information.
(h) "Code" shall mean the Internal Revenue Code of 1986, as
amended. Any reference to a particular section of the Code shall include any
provision that modifies, replaces or supersedes such section.
(i) "Common Stock" shall mean Common Stock, par value $0.01
per share, of the Company.
(j) "Constructive Termination Without Cause" shall mean a
termination by the Executive of his employment hereunder on 30 days' written
notice given by him to the Company (i) at any time during the 30 days
following either the first anniversary or the second anniversary of the
Effective Date, (ii) at any time within 90 days following a Change in Control
or (iii) within 180 days following the date on which he learns of the
occurrence, without his prior written consent, of any of the following events
unless the Company shall have fully cured all grounds for such termination
within 15 days after the Executive gives notice thereof:
(A) a material failure to timely grant, or
timely honor, any equity award under Section 6, or a material breach of any of
the Company's obligations under Sections 4 through 8, 10(b) or 11 or of any of
the Company's representations or warranties in Section 15(a) of this Agreement;
(B) the termination of, or a material reduction
in, any employee benefit or perquisite enjoyed by him (other than as part of an
across-the-board reduction applying generally to the other senior executives of
the Company);
(C) the failure to elect or reelect him to the
position described in Section 3(a) or the removal of him from such position;
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(D) a material diminution in his duties or the
assignment to him of duties that materially impair his ability to perform the
duties normally assigned to the chairman of the board of a corporation of the
size and nature of the Company or otherwise assigned to him hereunder;
(E) the relocation of the Company's principal
office, or of his own principal office as assigned to him by the Company, to a
location more than 25 miles from either Greenwich, Connecticut or Jacksonville,
Florida;
(F) any termination by the Company of the
Executive's employment hereunder other than in strict accordance
with the provisions of this Agreement; or
(G) the failure of the Company to obtain the
assumption in writing of its obligation to perform this Agreement by any
successor to all or substantially all of the assets or business of the Company
within 15 days after a merger, consolidation, sale or similar transaction.
(k) "Disability" shall mean the Executive's inability, due
to physical or mental incapacity, to substantially perform his duties and
responsibilities under this Agreement for a period of 180 consecutive days as
determined by an approved medical doctor. For this purpose an approved
medical doctor shall mean a medical doctor selected by the Parties. If the
Parties cannot agree on a medical doctor, each Party shall select a medical
doctor and the two doctors shall select a third who shall be the approved
medical doctor for this purpose.
(l) "Effective Date" shall mean the date on which the
Effective Time (as defined in the Reorganization Agreement) shall occur.
(m) "Parties" shall mean the Company and the Executive.
(n) "Person" shall mean any individual, corporation,
partnership, limited liability company, joint venture, trust, estate, board,
committee, agency, body, employee benefit plan, or other person or entity.
(o) "Proceeding" shall mean any threatened or actual
action, suit or proceeding, whether civil, criminal, administrative,
investigative, appellate or other.
(p) "Pro-Rata Annual Incentive Award" shall mean an amount
equal to the product obtained by multiplying (i) the Executive's target
annual incentive award for the year during which his employment hereunder
terminates (with such target award deemed to be no less than 75% of the
target award of the Company's Chief Executive Officer) times (ii) a fraction,
the
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numerator of which is the number of days on which the Executive was employed
by the Company or Witco during such year and the denominator of which is 365.
(q) "Restricted Stock" shall mean shares of Common Stock
issued to the Executive subject to future vesting requirements, as described
in Sections 6(a) and 6(c) hereof.
(r) "Retirement Benefit Agreement" shall mean a Retirement
Benefit Agreement substantially in the form of Exhibit A annexed hereto.
(s) "Subsidiary" of any company shall mean any corporation
of which such company owns, directly or indirectly, more than 50% of the
Voting Stock, measured either by number of shares and other voting securities
or by number of votes entitled to be cast.
(t) "Term of Employment" shall mean the period specified in
Section 2.
(u) "Termination Date" shall mean the date on which the
Executive's employment hereunder terminates in accordance with this Agreement.
(v) "Voting Stock" shall mean issued and outstanding
capital stock or other securities of any class or classes having general
voting power, under ordinary circumstances in the absence of contingencies,
to elect, in the case of a corporation, the directors of such corporation
and, in the case of any other entity, the corresponding governing Person(s).
2. TERM OF EMPLOYMENT.
The Company hereby agrees to employ the Executive under this
Agreement, and the Executive hereby accepts such employment, for the Term of
Employment. The Term of Employment shall commence on the Effective Date and
shall end on the third anniversary thereof. Notwithstanding the foregoing, the
Term of Employment may be earlier terminated in strict accordance with the
provisions of Section 9. Notwithstanding anything herein to the contrary, this
Agreement shall automatically terminate and be of no further effect if the
Reorganization Agreement is terminated prior to the Effective Time (as defined
therein) in accordance with its terms.
3. POSITIONS, DUTIES AND RESPONSIBILITIES.
(a) During the Term of Employment, the Executive shall
serve as the Chairman of the Board of the Company and shall have the
authority, duties and responsibilities customarily exercised
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by an individual serving in such position in a corporation of the size and
nature of the Company. In connection therewith, and without limitation on
such duties and responsibilities, the Executive shall (i) chair all meetings
of the Board (setting the agenda jointly with the Company's Chief Executive
Officer), (ii) work jointly with the Company's Chief Executive Officer in
initial and ongoing presentations of the strategic rationale of the Merger to
the investment community, key shareholders, customers, suppliers and
employees, (iii) work jointly with the Company's Chief Executive Officer to
integrate the Company and Witco, including identification and realization of
key synergies and cost reductions, visits to key locations and customers and
advice and counsel on personnel and organizational issues and (iv) work
jointly with the Company's Chief Executive Officer on other key technology,
strategic and financial issues affecting the Company. The Executive shall be
assigned no duties or responsibilities that are materially inconsistent with,
or that materially impair his ability to discharge, the foregoing duties and
responsibilities.
(b) Anything herein to the contrary notwithstanding,
nothing shall preclude the Executive from (i) serving, with prior notice to
the Board, on the boards of directors of other corporations unless the Board
shall reasonably determine that such service would result in a material
conflict of interest, or on the boards of a reasonable number of trade
associations and/or charitable organizations, (ii) engaging in charitable
activities and community affairs, (iii) delivering lectures or fulfilling
speaking obligations and (iv) managing his personal investments and affairs;
PROVIDED, THAT such activities do not materially interfere with the
performance of the Executive's duties and responsibilities as Chairman of the
Board.
4. BASE SALARY.
Commencing as of the Effective Date, the Executive shall be
paid an annualized Base Salary equal to the greater of (i) $810,000, and (ii)
the annualized base salary of the Company's Chief Executive Officer as of the
Effective Date. Such Base Salary shall be payable in accordance with the
regular payroll practices of the Company applicable to senior executives but
no less frequently than monthly. The Base Salary shall be reviewed no less
frequently than annually during the Term of Employment for increase in the
discretion of the Board. In addition, upon any increase in the base salary of
the Company's Chief Executive Officer, the Base Salary shall immediately be
increased (but not decreased) to a level at least equal to that of such Chief
Executive Officer. The Base Salary shall not be decreased at any time, or for
any purpose, during the Term of Employment (including, without limitation,
for the purpose of determining benefits due under Section 9).
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5. ANNUAL INCENTIVE AWARDS.
The Executive shall be eligible for an annual incentive bonus
award from the Company in respect of each year during the Term of Employment.
The criteria on which awards are based shall be set by the Board.
Notwithstanding the foregoing, the annual incentive award actually paid to the
Executive in respect of any year shall be no less than 75% of the annual
incentive bonus payment(s) earned by the Company's Chief Executive Officer in
respect of such year. The Executive shall receive his annual incentive award
payment in respect of any year no later than the earlier of (x) the date the
Chief Executive Officer of the Company receives his annual incentive award
payment in respect of such year and (y) the 120th day following the end of such
year.
6. LONG-TERM INCENTIVE AWARDS.
(a) INITIAL GRANT OF RESTRICTED STOCK. As of the
Effective Date, the Company shall grant to the Executive 300,000 shares of
restricted Common Stock. Such grant shall be pursuant to an agreement, in
customary form reasonably acceptable to the Executive and no less favorable
to the Executive in any respect than the form used for any corresponding
grant to the Chief Executive Officer of the Company, which agreement shall
provide for the vesting of such shares over two years subject to the
attainment of certain performance criteria determined by the Compensation
Committee of the Company and shall contain provisions for the acceleration of
vesting upon a termination of employment or Change in Control consistent with
the provisions of Sections 9 and 10(a). The Executive shall be entitled,
pursuant to such agreement, to retain all dividends and other distributions
with respect to such shares that are declared prior to any vesting or
forfeiture of such shares.
(b) INITIAL STOCK OPTION GRANT. As of the Effective
Date, the Company shall grant to the Executive a ten-year option to purchase
500,000 shares of Common Stock (the "Stock Option"). Such option grant shall
be made under the Crompton & ▇▇▇▇▇▇▇ Corporation 1998 Long Term Incentive
Plan (or a successor plan containing no less favorable terms) and pursuant to
an agreement, in customary form reasonably acceptable to the Executive and no
less favorable to the Executive in any respect than the form used for any
corresponding grant to the Chief Executive Officer of the Company, which
agreement shall provide for the vesting of such option in five equal
installments on each of the first five anniversaries of the Effective Date
and for an exercise price per share of Common Stock no greater than the "Fair
Market Value" (as such term is defined in the Crompton & ▇▇▇▇▇▇▇ Corporation
1998 Long Term Incentive Plan) of a share of Common Stock as of the Effective
Date, and shall contain provisions for the acceleration of vesting upon a
termination of employment or Change in Control consistent with the provisions
of Sections 9 and 10(a).
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(c) FUTURE EQUITY AWARDS. During the Term of Employment, the
Executive shall be eligible for additional awards of stock options, Restricted
Stock and other equity grants in the discretion of the Board. Such awards shall
be at a level, and on terms and conditions, that are commensurate with his
positions and responsibilities at the Company and appropriate in light of
corresponding awards to other senior executives of the Company. Notwithstanding
the foregoing, in the event that the Chief Executive Officer of the Company
receives any grant or award of stock options during the Term of Employment under
any annual stock option plan or program of the Company (other than any grant or
award made as of the Effective Date), the Executive shall be entitled to receive
a corresponding grant or award, on no less favorable terms and covering at least
75% of the number of shares covered by the corresponding grant or award to such
Chief Executive Officer.
(d) OTHER LONG-TERM INCENTIVES. The Executive shall be
eligible for long-term incentive awards, in addition to those described in
Sections 6(a), (b) and (c) above, at a level, and on terms and conditions, that
are commensurate with his positions and responsibilities at the Company and
appropriate in light of corresponding awards to other senior executives of the
Company. The Executive shall, in any event, be entitled to receive any form of
long-term incentive award described in this Section 6(d) in an amount equal to
at least 75% of any corresponding long-term incentive award received by the
Company's Chief Executive Officer during the Term of Employment (regardless of
whether such award is payable during the Term of Employment).
7. OTHER BENEFITS.
(a) EMPLOYEE BENEFITS. During the Term of Employment, the
Executive shall participate in all employee benefit plans, programs and
arrangements made available generally to the Company's senior executives or to
its employees, including, without limitation, profit-sharing, savings and other
defined contribution retirement plans or programs, medical, dental,
hospitalization, short-term and long-term disability and life insurance plans or
programs, accidental death and dismemberment protection, travel accident
insurance, and any other employee welfare benefit plans or programs that may be
sponsored by the Company from time to time, including any plans or programs that
supplement the above-listed types of plans or programs, whether funded or
unfunded; PROVIDED, HOWEVER, that nothing in this Agreement shall be construed
to require the Company to establish or maintain any such plans, programs or
arrangements, except as expressly set forth herein. The Executive's
participation in all such plans, programs and arrangements shall be at a level,
and on terms and conditions, that are commensurate with his positions and
responsibilities at the Company and are no less favorable to the Executive than
those applying to the Company's Chief Executive Officer.
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(b) RETIREMENT BENEFITS. As of the Effective Date, the Company
shall enter into a Retirement Benefit Agreement with the Executive substantially
in the form annexed hereto as Exhibit A, pursuant to which the Executive shall
be fully vested in a retirement benefit determined in accordance with such
Agreement. As of the Effective Date, this retirement benefit shall replace, and
be in lieu of, the SERP benefit to which the Executive would otherwise be
entitled pursuant to the employment agreement between the Executive and Witco,
dated June 12, 1996.
(c) PERQUISITES. During the Term of Employment, the Executive
shall participate in all fringe benefits and perquisites available to senior
executives of the Company at levels, and on terms and conditions, that are
commensurate with his positions and responsibilities at the Company and no less
favorable than those available to the Company's Chief Executive Officer
(including, without limitation, up to $20,000 annually for financial, tax and
estate planning and counseling, and use of an automobile of the Executive's
choice in the Greenwich, Connecticut and Jacksonville, Florida areas in
accordance with Company policy); and shall receive such additional fringe
benefits and perquisites as the Company may, in its discretion, from
time-to-time provide. The Executive shall be provided with a suitable office,
and with suitable secretarial services, at the Company's executive offices in
Greenwich, Connecticut and Jacksonville, Florida.
(d) VACATIONS. During the Term of Employment, the Executive
shall be entitled to six weeks paid vacation per year, which may be carried over
from year to year.
8. REIMBURSEMENT OF BUSINESS AND OTHER EXPENSES.
(a) The Executive is authorized to incur reasonable expenses
in carrying out his duties and responsibilities under this Agreement and the
Company shall promptly reimburse him for all such expenses, subject to
documentation in accordance with reasonable policies of the Company.
(b) The Company shall promptly reimburse the Executive for any
and all expenses (including, without limitation, attorney's fees and other
charges of counsel) incurred by him in connection with the negotiation and
documentation of this Agreement and the Executive's other employment
arrangements with the Company.
9. TERMINATION OF EMPLOYMENT.
(a) TERMINATION DUE TO DEATH. In the event that the
Executive's employment hereunder is terminated due to his death, his estate or
his beneficiaries (as the case may be) shall be entitled to:
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(i) Base Salary through the date of his death;
(ii) a Pro-Rata Annual Incentive Award for the
year in which his death occurs, payable in a lump sum promptly after his death,
and, if the product of (A) 75% of the annual incentive bonus payment(s) earned
by the Company's Chief Executive Officer for such year and (B) the fraction
described in Section 1(p)(ii), shall exceed such Pro-Rata Annual Incentive
Award, an amount equal to such excess, payable no later than the date specified
in the last sentence of Section 5;
(iii) payments with respect to any long-term
incentive awards that have long-term incentive measurement periods ending after
the date of his death to the extent provided in the applicable plans or programs
or, if greater, award documents in the event of death;
(iv) the continued right to exercise each
outstanding stock option to the extent provided in the applicable plan or, if
greater, grant document in the event of death, with each such option to become
and remain exercisable to the extent provided in the applicable plan or, if
greater, grant document in the event of death;
(v) immediate vesting of all shares of
Restricted Stock and, notwithstanding Section 9(a)(iv), the Stock Option;
(vi) the retirement benefit payable pursuant to
the Retirement Benefit Agreement;
(vii) continued participation for one year for
each of the Executive's dependents in all medical, dental, vision,
hospitalization and other employee welfare benefit plans, programs and
arrangements in which such dependent was participating as of the date of the
Executive's death, on terms and conditions no less favorable than those applying
on such date and with COBRA benefits commencing thereafter; and
(viii) the benefits described in Section 9(h)(i).
(b) TERMINATION DUE TO DISABILITY. In the event that the
Executive's employment hereunder is terminated due to Disability, he shall be
entitled to the following:
(i) to receive disability benefits (beyond
benefits attributable to his own contributions) to the same extent as such
benefits would have been provided to the Company's Chief Executive Officer had
such Chief Executive Officer terminated employment with the Company on the
Termination Date as a result of disability;
(ii) a Pro-Rata Annual Incentive Award for the
year in which his employment terminates, payable in a lump sum
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promptly following the Termination Date, and, if the product of (A) 75% of the
annual incentive bonus payment(s) earned by the Company's Chief Executive
Officer for such year and (B) the fraction described in Section 1(p)(ii), shall
exceed such Pro-Rata Annual Incentive Award, an amount equal to such excess, no
later than the time specified in Section 5 hereof;
(iii) payments with respect to any long-term
incentive awards that have long-term incentive measurement periods ending after
the Termination Date to the extent provided in the applicable plans or programs
or, if greater, award documents in the event of disability;
(iv) the continued right to exercise each
outstanding stock option to the extent provided in the applicable plan or, if
greater, grant document in the event of disability, with each such option to
become and remain exercisable to the extent provided in the applicable plan or,
if greater, grant document in the event of disability;
(v) immediate vesting of all shares of
Restricted Stock and, notwithstanding Section 9(b)(iv), the Stock Option;
(vi) the retirement benefit payable pursuant to
the Retirement Benefit Agreement;
(vii) continued participation, through the later
of the third anniversary of the Effective Date and the first anniversary of the
Termination Date, for the Executive and each of his dependents in all medical,
dental, vision, hospitalization and life insurance coverages and in all other
employee welfare benefit plans, programs and arrangements in which they were
participating as of the Termination Date, on terms and conditions that are no
less favorable than those that applied on such date; and
(viii) the benefits described in Section 9(h)(i).
No termination of the Executive's employment for Disability
shall be effective unless the Party terminating his employment first gives 15
days written notice of such termination to the other Party.
(c) TERMINATION BY THE COMPANY FOR CAUSE.
(i) No termination of the Executive's employment
hereunder by the Company for Cause shall be effective unless the provisions of
this Section 9(c)(i) shall have been complied with. The Executive shall be given
written notice by the Board of the intention to terminate him for Cause, such
notice (A) to state in detail the particular circumstances that constitute the
grounds on which the proposed termination for Cause is based and (B) to be given
no later than 180 days after the Board first learns of
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such circumstances. The Executive shall have 15 days after receiving such notice
in which to cure such grounds, to the extent such cure is possible. If he fails
to cure such grounds, the Executive shall then be entitled to a hearing before
the Board. Such hearing shall be held within 20 days of his receiving such
notice, provided that he requests such hearing within 15 days of receiving such
notice. If, within five days following such hearing, the Board gives written
notice to the Executive confirming that, in the judgment of at least two thirds
of the members of the Board, Cause for terminating his employment on the basis
set forth in the original notice exists, his employment with the Company shall
thereupon be terminated for Cause, subject to DE NOVO review, at the Executive's
election, through arbitration in accordance with Section 16.
(ii) In the event that the Executive's employment
hereunder is terminated by the Company for Cause in accordance
with Section 9(c)(i), he shall be entitled to:
(A) the continued right to exercise each
outstanding stock option that is, or becomes, exercisable as of the
Termination Date, such period of exercisability to continue for at
least the lesser of (x) 90 days and (y) the balance of such option's
maximum stated term;
(B) the retirement benefit payable
pursuant to the Retirement Benefit Agreement; and
(C) the benefits described in Section
9(h)(i).
(d) TERMINATION WITHOUT CAUSE. In the event that the
Executive's employment hereunder is terminated by the Company, other than due to
Disability in accordance with Section 9(b) or for Cause in accordance with
Section 9(c)(i), he shall be entitled to:
(i) a prompt lump-sum payment equal to the
amount of the future Base Salary that would have been payable to the Executive
had he remained employed by the Company through the third anniversary of the
Effective Date;
(ii) continuing payments of annual incentive
awards for each year remaining through the third anniversary of the Effective
Date, in each case in an amount equal to 75% of the annual incentive bonus
payment(s) earned by the Company's Chief Executive Officer for such year;
PROVIDED, HOWEVER, that the amount in respect of the year containing the third
anniversary of the Effective Date shall be prorated to reflect the portion of
such year that occurs prior to such anniversary and; PROVIDED, FURTHER, THAT
each such payment shall be made no later than the date specified in the last
sentence of Section 5;
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(iii) payments with respect to any long-term
incentive awards that have long-term incentive measurement periods ending after
the Termination Date to the extent provided in the applicable plans or programs
or, if greater, award documents in the event of a retirement or, if greater, a
termination of employment without cause;
(iv) the continued right to exercise each
outstanding stock option to the extent provided in the applicable plan or, if
greater, grant document in the event of a retirement or, if greater, a
termination of employment without cause, with each such option to become and
remain exercisable to the extent provided in the applicable plan or, if greater,
grant document in the event of a retirement or, if greater, a termination of
employment without cause;
(v) immediate vesting of all shares of
Restricted Stock and, notwithstanding Section 9(d)(iv), the Stock Option;
(vi) the retirement benefit payable pursuant to
the Retirement Benefit Agreement;
(vii) continued participation, until no earlier
than the third anniversary of the Effective Date, for the Executive and each of
his dependents in all employee welfare benefit plans, programs and arrangements
in which they were participating as of such date, on terms and conditions that
are no less favorable than those that applied on such date and with COBRA
benefits commencing thereafter, provided that the Company's obligation under
this Section 9(d)(vii) shall be reduced to the extent that equivalent coverages
and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis)
are provided under the plans, programs or arrangements of a subsequent employer;
and
(viii) the benefits described in Section 9(h)(i).
(e) CONSTRUCTIVE TERMINATION WITHOUT CAUSE. In the event that
a Constructive Termination Without Cause occurs, the Executive shall have the
same entitlements as provided under Section 9(d) for a termination by the
Company without Cause.
(f) VOLUNTARY TERMINATION. In the event that the Executive
terminates his employment with the Company on his own initiative, other than by
death, for Disability, or by a Constructive Termination Without Cause, he shall
have the same entitlements as provided in Section 9(c)(ii) in the case of a
termination by the Company for Cause. A voluntary termination under this Section
9(f) shall be effective upon written notice to the Company and shall not be
deemed a breach of this Agreement.
(g) EXPIRATION OF THE TERM OF EMPLOYMENT. In the event that
the Executive's employment hereunder terminates upon
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the third anniversary of the Effective Date, then he shall be
entitled to:
(i) a Pro-Rata Annual Incentive Award for the
year containing the Termination Date, payable in a lump sum promptly following
the Termination Date, and, if the product of (x) 75% of the annual incentive
bonus payment(s) earned by the Company's Chief Executive Officer for such year
and (y) the fraction described in Section 1(p)(ii), shall exceed such Pro-Rata
Annual Incentive Award, an amount equal to such excess no later than the time
specified in Section 5 hereof;
(ii) the retirement benefit payable pursuant to
the Retirement Benefit Agreement;
(iii) payments with respect to any long-term
incentive awards that have long-term incentive measurement periods ending
after the Termination Date to the extent provided in the applicable plans or
programs or, if greater, award documents in the event of a retirement or, if
greater, a termination of employment without cause;
(iv) the continued right to exercise each
outstanding stock option to the extent provided in the applicable plan or, if
greater, grant document in the event of a retirement or, if greater, a
termination of employment without cause, with each such option to become and
remain exercisable to the extent provided in the applicable plan or, if greater,
grant document in the event of a retirement or, if greater, a termination of
employment without cause;
(v) immediate vesting of all shares of
Restricted Stock and, notwithstanding Section 9(g)(iv), the Stock Option; and
(vi) the benefits described in Section 9(h)(i).
(h) MISCELLANEOUS.
(i) On any termination of the Executive's
employment hereunder, shall be entitled to:
(A) Base Salary through the Termination
Date;
(B) the balance of any incentive awards
earned (but not yet paid);
(C) any amounts due him under Sections 7
or 8;
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(D) a lump-sum payment in respect of
accrued but unused vacation days at his Base Salary rate in effect
on the Termination Date;
(E) in addition to any benefits provided
pursuant to Sections 9(a)(vii), 9(b)(vii) and 9(d)(vii), the Company
shall continue to provide medical, dental, vision and hospitalization
coverages and benefits to the Executive and his spouse, for the
remainder of each of their lives, on no less favorable a basis to the
recipient than such benefits and coverages are provided to the Chief
Executive Officer of the Company, PROVIDED that in no event shall the
basis be materially less favorable, in the aggregate, than the basis
applying as of the Termination Date;
(F) other or additional benefits, if
any, in accordance with applicable plans, programs and arrangements
of the Company and its Affiliates (including, without
limitation, Sections 10(b) and 11(a)); and
(G) payment, by wire transfer promptly
when due, of all monies owed to him in connection with the
termination.
(ii) In the event that the Executive, or any
member of his family, is precluded from continuing full participation in any
employee benefit plan, program or arrangement as provided in Sections 9(a)(vii),
9(b)(vii), 9(d)(vii) or 9(h)(i)(E), the Executive shall be provided with the
after-tax economic equivalent of any benefit or coverage foregone. For this
purpose, the economic equivalent of any benefit or coverage foregone shall be
deemed to be the total cost to the Executive of obtaining such benefit or
coverage himself on an individual basis. Payment of such after-tax economic
equivalent shall be made quarterly in advance, without discount.
(iii) In the event of any termination of the
Executive's employment with the Company, the Executive shall be under no
obligation to seek other employment or otherwise mitigate the obligations of the
Company under this Agreement, and there shall be no offset against amounts due
the Executive under this Agreement on account of (A) any claim that the Company
or any of its shareholders or Affiliates may have against him or (B) any
remuneration or other benefit earned or received by the Executive after such
termination except as specifically provided in Section 9(d)(vii). Any amounts
due under this Section 9 or under Section 10(b) are considered to be reasonable
by the Company and are not in the nature of a penalty.
10. CHANGE IN CONTROL; EXCISE TAX GROSS-UP.
(a) In the event that a Change in Control occurs
during the Term of Employment, then (i) all amounts, entitlements
15
and benefits (excluding any Restricted Stock and the Stock Option unless the
Change in Control is also a "change in control" within the meaning of the
Crompton & ▇▇▇▇▇▇▇ Corporation 1998 Long Term Incentive Plan) in which the
Executive is not yet vested shall become fully vested and nonforfeitable; and
(ii) the Executive shall have the continued right to exercise each outstanding
stock option, including, without limitation, any portion of the Stock Option
vesting prior to or upon such Change in Control, to the extent permitted by the
applicable plan or, if more favorable to the Executive, grant document, with
each such option to become and remain exercisable to the extent permitted by the
applicable plan or, if more favorable to the Executive, grant document. In the
event that holders of Common Stock receive cash, securities or other property in
respect of their Common Stock in connection with a Change in Control
transaction, the Company shall use its best reasonable efforts, consistent with
the applicable plan or, if more favorable to the Executive, grant document to
enable the Executive (if he so elects) to exercise any stock option at a time
and in a fashion that will entitle him to receive in exchange for any shares
thus acquired the same consideration as is received in such Change in Control
transaction by other holders of Common Stock. Notwithstanding the foregoing,
nothing in this Section 10(a) shall in any way limit the Executive's rights
under Section 9 with respect to any stock option (including, without limitation,
the Stock Option) or Restricted Stock upon a termination of his employment.
(b) In the event that any payment or benefit made or provided
to or for the benefit of the Executive in connection with this Agreement, his
employment with the Company or the termination thereof, or his prior employment
with Witco (a "Payment") is determined to be subject to any excise tax ("Excise
Tax") imposed by Section 4999 of the Code (or any successor to such Section),
the Company shall pay to the Executive, prior to the time any Excise Tax is
payable with respect to such Payment (through withholding or otherwise), an
additional amount (a "Gross-Up Payment") which, after the imposition of all
income, employment, excise and other taxes, penalties and interest thereon, is
equal to the sum of (i) the Excise Tax on such Payment plus (ii) any penalty and
interest assessments associated with such Excise Tax. The determination of
whether any Payment is subject to an Excise Tax and, if so, the amount and time
of any Gross-Up Payment pursuant to this Section 10(b) shall be made by an
independent auditor (the "Auditor") jointly selected by the Parties and paid by
the Company. Unless the Executive agrees otherwise in writing, the Auditor shall
be a nationally recognized United States public accounting firm that has not,
during the two years preceding the date of its selection, acted in any way on
behalf of the Company or any of its Affiliates. If the Parties cannot agree on
the firm to serve as the Auditor, then the Parties shall each select one
accounting firm and those two firms shall jointly select the accounting firm to
serve as the Auditor. The Parties shall cooperate with each other in
16
connection with any Proceeding or Claim relating to the existence or amount of
any liability for Excise Tax. All expenses relating to any such Proceeding or
Claim (including attorneys' fees and other expenses incurred by the Executive in
connection therewith) shall be paid by the Company promptly upon demand by the
Executive, and any such payment shall be subject to a Gross-Up Payment under
this Section 10(b) in the event that the Executive is subject to Excise Tax on
it. This Section 10(b) shall apply irrespective of whether a Change in Control
has occurred.
11. INDEMNIFICATION.
(a) The Company agrees that (i) if the Executive is made a
party, or is threatened to be made a party, to any Proceeding by reason of the
fact that he is or was a director, officer, employee, agent, manager, consultant
or representative of the Company or Witco or is or was serving at the request of
the Company, Witco or any of their Affiliates as a director, officer, member,
employee, agent, manager, consultant or representative of another Person or (ii)
if any Claim is made, or threatened to be made, that arises out of or relates to
the Executive's service in any of the foregoing capacities, then the Executive
shall promptly be indemnified and held harmless by the Company to the fullest
extent legally permitted or authorized by the Company's certificate of
incorporation, bylaws or Board resolutions or, if greater, by the laws of the
State of Delaware, against any and all costs, expenses, liabilities and losses
(including, without limitation, attorney's fees, judgments, interest, expenses
of investigation, penalties, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) incurred or suffered by the Executive in
connection therewith, and such indemnification shall continue as to the
Executive even if he has ceased to be a director, member, employee, agent,
manager, consultant or representative of the Company or other Person and shall
inure to the benefit of the Executive's heirs, executors and administrators. The
Company shall advance to the Executive all costs and expenses incurred by him in
connection with any such Proceeding or Claim within 15 days after receiving
written notice requesting such an advance. Such notice shall include, to the
extent required by applicable law, an undertaking by the Executive to repay the
amount advanced if he is ultimately determined not to be entitled to
indemnification against such costs and expenses.
(b) Neither the failure of the Company (including the Board,
independent legal counsel or stockholders) to have made a determination in
connection with any request for indemnification or advancement under Section
11(a) that the Executive has satisfied any applicable standard of conduct, nor a
determination by the Company (including the Board, independent legal counsel or
stockholders) that the Executive has not met any applicable standard of conduct,
shall create a presumption that the Executive has not met an applicable standard
of conduct.
17
(c) During the Term of Employment and for a period of six
years thereafter, the Company shall keep in place a directors and officers'
liability insurance policy (or policies) providing comprehensive coverage to the
Executive to the extent that the Company provides such coverage for any other
present or former senior executive or director of the Company.
12. CONFIDENTIALITY.
During the Term of Employment and thereafter, the Executive
shall not, without the consent of the Company, divulge, disclose or make
accessible to any other Person any confidential non-public document, record or
information concerning the business or affairs of the Company or of any of its
Subsidiaries that he has acquired in the course of his employment with the
Company or Witco, except (x) to the Company or to any authorized (or apparently
authorized) agent or representative of the Company, (y) in connection with
performing his duties under this Agreement, or (z) when required to do so by law
or by a court, governmental agency, legislative body, or other Person with
apparent jurisdiction to order him to divulge, disclose or make accessible such
information; PROVIDED, HOWEVER, that these restrictions shall not apply to any
document, record or other information that (i) has previously been disclosed to
the public, or is in the public domain, other than as a result of the
Executive's breach of this Section 12, or (ii) is known or generally available
within any trade or industry of the Company or of any of its Subsidiaries.
13. NON-COMPETE.
During the Term of Employment, and (PROVIDED that the Company
has fully and promptly satisfied all its obligations hereunder) for a period of
six months thereafter, the Executive shall not engage in any "Competitive
Activity." For purposes of this Agreement, "Competitive Activity" shall mean the
Executive's active participation in the direction or management of any
enterprise that derives fifty percent or more of its consolidated gross revenues
from sales of products and services in markets in which it competes directly
with the Company for sales of such products and services and from which the
Company derives thirty percent or more if its consolidated gross revenues;
PROVIDED, HOWEVER, that the term "Competitive Activity" shall not include mere
ownership of up to five percent (measured by value) of the equity securities of
any enterprise and that the term "Company" shall, for purposes of this sentence
only, include Subsidiaries of the Company. The restrictions set forth in this
Section 13 shall supersede any other non-competition, non-solicitation or
similar restriction by which the Executive might otherwise be bound including,
without limitation, any such restriction under the employment agreement dated as
of June 12, 1996, between Witco and the Executive.
18
14. ASSIGNABILITY; BINDING NATURE.
(a) This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors, heirs (in the case of
the Executive) and assigns.
(b) No rights or obligations of the Company under this
Agreement may be assigned or transferred by the Company except that such rights
or obligations may be assigned or transferred pursuant to a merger or
consolidation in which the Company is not the continuing entity, or a sale or
liquidation of all or substantially all of the assets and business of the
Company, provided that the assignee or transferee is the successor to all or
substantially all of the assets and business of the Company and such assignee or
transferee assumes the liabilities, obligations and duties of the Company, as
contained in this Agreement, either contractually or as a matter of law. In the
event of any sale of assets and business or liquidation as described in the
preceding sentence, the Company shall use its best efforts to cause such
assignee or transferee to expressly assume the liabilities, obligations and
duties of the Company hereunder.
(c) No rights or obligations of the Executive under this
Agreement may be assigned or transferred by the Executive other than his rights
to compensation and benefits, which may be transferred only by will or operation
of law, except as provided in Section 18(e).
15. REPRESENTATIONS.
(a) The Company represents and warrants that (i) it is fully
authorized by action of its Board (and of any other Person or body whose action
is required) to enter into this Agreement and to perform its obligations
hereunder; (ii) the execution, delivery and performance of this Agreement by the
Company does not violate any applicable law, regulation, order, judgment or
decree; or any agreement, plan or corporate governance document of the Company;
and (iii) upon the execution and delivery of this Agreement by the Parties, this
Agreement shall be the valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to the extent
enforceability may be limited by applicable bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally.
(b) The Executive represents and warrants that, to the best of
his knowledge and belief, (i) delivery and performance of this Agreement by him
does not violate any applicable law, regulation, order, judgment or decree or
any agreement to which the Executive is a party or by which he is bound, and
(ii) upon the execution and delivery of this Agreement by the Parties, this
Agreement shall be the valid and binding obligation of the
19
Executive, enforceable against him in accordance with its terms, except to the
extent enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally.
16. RESOLUTION OF DISPUTES.
Any Claim arising out of or relating to this Agreement, the
Executive's employment with the Company or with Witco or the termination of such
employment shall be resolved by binding confidential arbitration, to be held in
Jacksonville, Florida, in accordance with the Commercial Arbitration Rules of
the American Arbitration Association. Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. The
Company shall promptly pay all costs and expenses, including without limitation
attorneys' fees, incurred by the Executive or his beneficiaries in resolving any
such Claim, other than any Claim brought by the Executive or his beneficiaries
that the arbitrator(s) determine to have been brought (i) in bad faith or (ii)
without any reasonable basis. Pending the resolution of any Claim, the Executive
(and his beneficiaries) shall continue to receive all payments and benefits due
under this Agreement, except to the extent that the arbitrator(s) otherwise
provide.
17. NOTICES.
Any notice, consent, demand, request, or other communication
given to a Person in connection with this Agreement shall be in writing and
shall be deemed to have been given to such Person (a) when delivered personally
to such Person or (b), provided that a written acknowledgment of receipt is
obtained, two days after being sent by prepaid certified or registered mail, or
by a nationally recognized overnight courier, to the address specified below for
such Person (or to such other address as such Person shall have specified by ten
days advance notice given in accordance with this Section 17), or (c) in the
case of the Company only, on the first business day after it is sent by
facsimile to the facsimile number set forth for the Company (or to such other
facsimile number as the Company shall have specified by ten days advance notice
given in accordance with this Section 17), with a confirmatory copy sent by
certified or registered mail or by overnight courier to the Company in
accordance with this Section 17.
If to the Company: C&K Witco Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile #: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Executive: To the Executive at his principal
residence as shown in the records of
the Company (with a copy to the
Executive at the Company's address)
20
If to a beneficiary The address most recently specified by
of the Executive: the Executive or beneficiary through
notice given in accordance with this
Section 17.
18. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement contains the entire
understanding and agreement between the Parties concerning the subject matter
hereof and, as of the Effective Date, supersedes all prior agreements,
understandings, discussions, negotiations and undertakings, whether written or
oral, between the Parties with respect thereto, including, without limitation,
the employment agreement dated as of June 12, 1996, between Witco and the
Executive, except to the extent necessary to protect existing rights.
(b) SEVERABILITY. In the event that any provision or portion
of this Agreement shall be determined to be invalid or unenforceable for any
reason, in whole or in part, the remaining provisions of this Agreement shall be
unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law so as to achieve the purposes of this Agreement.
(c) AMENDMENT OR WAIVER. No provision in this Agreement may be
amended unless such amendment is set forth in a writing signed by the Parties.
No waiver by either Party of any breach of any condition or provision contained
in this Agreement shall be deemed a waiver of any similar or dissimilar
condition or provision at the same or any prior or subsequent time. To be
effective, any waiver must be set forth in a writing signed by the waiving
Party.
(d) HEADINGS. The headings of the Sections contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement.
(e) BENEFICIARIES/REFERENCES. The Executive shall be entitled,
to the extent permitted under any applicable law, to select and change a
beneficiary or beneficiaries to receive any compensation or benefit hereunder
following the Executive's death by giving the Company written notice thereof. In
the event of the Executive's death or a judicial determination of his
incompetence, reference in this Agreement to the Executive shall be deemed,
where appropriate, to refer to his beneficiary, estate or other legal
representative.
(f) SURVIVORSHIP. Except as otherwise set forth in this
Agreement, the respective rights and obligations of the Parties hereunder shall
survive any termination of the Executive's employment hereunder.
(g) GOVERNING LAW/JURISDICTION. This Agreement shall be
governed, construed, performed and enforced in accordance with the laws of the
State of Delaware, without reference to principles of conflicts of laws.
21
(h) COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which,
when taken together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
PARK MERGER CO.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
WITCO CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
THE EXECUTIVE
/S/ E. ▇▇▇▇ ▇▇▇▇
--------------------------------
E. ▇▇▇▇ ▇▇▇▇
22
EXHIBIT A
FORM OF RETIREMENT BENEFIT AGREEMENT
AGREEMENT by and between C&K Witco Corporation, a Delaware corporation
(together with its successors and assigns permitted under this Agreement, the
"Company") and E. ▇▇▇▇ ▇▇▇▇ (the "Executive") dated as of the _______ day of
______________, 1999.
W I T N E S S E T H :
WHEREAS, the Company, Witco Corporation and the Executive have entered
into an Employment Agreement dated as of May 31, 1999 ( the "Employment
Agreement"); and
WHEREAS, the Company desires to provide certain retirement benefits to
the Executive in connection with his employment under the Employment Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, the Company and the Executive, intending to be
bound as of the "Effective Date" as such term is defined in the Employment
Agreement, agree as follows:
1. DEFINITIONS AND USAGE.
(a) DEFINITIONS. Wherever used in this Agreement, the following words
and phrases shall have the meaning set forth below unless the context plainly
requires a different meaning:
(i) "Actuarial Equivalent" means a benefit of equivalent
value, computed on the basis of (i) the 1983 Group Annuity Mortality Table
(unisex) and (ii) an annual interest rate equal to the average yield on 30-year
United States Treasury securities for the month preceding the month in which the
Executive's employment with the Company terminates.
(ii) "Beneficiary" means any individual, trust or other entity
designated by the Executive as a beneficiary with respect to his Retirement
Benefit in his most recent written designation filed with the Company before his
death and, in the absence of any such filed designation to the contrary, shall
be deemed to be the Executive's spouse or, in the event that he has no spouse or
his spouse dies, his estate.
(iii) "Committee" means the individual or individuals
appointed by the Board to perform the functions described in Section 3.
23
(iv) "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended from time to time.
(v) "Retirement Benefit" means the benefit determined under
Section 2.
(b) OTHER DEFINED TERMS. Other capitalized terms shall
have the meanings set forth in the Employment Agreement.
2. BENEFITS.
(a) RETIREMENT BENEFIT. The Retirement Benefit shall be an annuity with
annual payments of $1.5 million per year that (i) are payable for the life of
the Executive and (ii) commence on the Termination Date, with subsequent annual
payments payable on the anniversaries of the Termination Date; PROVIDED,
HOWEVER, that if the Executive's death occurs before 15 annual payments have
been made, his Beneficiary shall receive annual payments of $1.5 million per
year, payable at the same time as they would have been payable to the Executive
had he survived, until such time as 15 annual payments shall have been made.
(b) VESTING. The Executive shall have a vested right to the Retirement
Benefit as of the Effective Date, and such right shall remain fully vested
following the termination of his employment with the Company for any reason.
(c) OPTIONAL FORMS OF BENEFIT. In lieu of receiving the Retirement
Benefit described in Section 2(a) above, the Executive may elect to receive the
Actuarial Equivalent of the Retirement Benefit in any of the following forms:
(i) a joint and fifty percent (50%) survivor annuity, (ii) a joint and fifty
percent (50%) survivor annuity with a 15-year term certain for payment at the
100% rate, or (iii) a lump-sum distribution. Payment of the lump-sum
distribution shall be made promptly after the Termination Date. Payments of
other optional forms of benefit shall commence on the Termination Date. The
election to receive any of these optional forms of benefit shall be made or
changed by written notice from the Executive given either prior to the Effective
Date or at least six months prior to the Termination Date. Any benefit shall be
paid in cash unless the recipient consents in writing to payment in another
form.
(d) PRE-RETIREMENT DEATH BENEFIT. In the event that the Executive dies
prior to the commencement of payments in respect of the Retirement Benefit, his
Beneficiary shall receive annual payments that (i) are equal to the annual
benefit payments to which such Beneficiary would have been entitled had the
Executive's Termination Date occurred on the day prior to his death and had the
Executive elected to receive a joint and fifty percent (50%) retirement benefit
with a 15-year term certain for payment at the 100% rate and (ii) are payable at
the same time as they would have been payable to the Executive had he survived.
24
3. PROCEDURES.
(a) ADMINISTRATION. The Committee shall be the plan administrator for
this Retirement Benefit Agreement. The Committee shall have the duty to
determine eligibility for benefits and the appropriate amount of any benefits;
to decide any question which may arise regarding the rights of the Executive and
his Beneficiaries, and the amounts of their respective interests; and to adopt
rules and to exercise powers that are appropriate for the administration of this
Retirement Benefit Agreement, subject in all cases to DE NOVO review in
arbitration in accordance with Section 16 of the Employment Agreement. The
Committee shall maintain full and complete records of its decisions.
(b) CLAIMS PROCEDURE. Any claim for benefits under this Retirement
Benefit Agreement shall be made by the Executive or Beneficiary ("claimant") by
written notice to the Company, directed to the attention of the Committee. If a
claim for benefits under this Retirement Benefit Agreement is wholly or
partially denied, notice of the decision shall be given to the claimant by the
Committee within 10 days after the claimant gives written notice of the claim to
the Company. Such notice of decision shall set forth the specific reason or
reasons for the denial; specific reference to the pertinent provisions of this
Retirement Benefit Agreement upon which the denial is based; and a description
of any additional material or information necessary for the claimant to perfect
the claim.
(c) DISPUTE RESOLUTION. Any denial of benefits or other dispute or
claim arising out of or relating to this Retirement Benefit Agreement shall be
resolved by binding arbitration in accordance with Section 16 of the Employment
Agreement.
4. MISCELLANEOUS PROVISIONS.
(a) GENERAL. Sections 14 through 18 of the Employment Agreement shall
be deemed incorporated herein in full, with the references to "the Agreement" in
such sections treated as references to this Retirement Benefit Agreement.
(b) NO GUARANTEE OF EMPLOYMENT. Nothing contained in this Retirement
Benefit Agreement shall be construed as a contract of employment or deemed to
give the Executive the right to be retained in the employ of the Company.
(c) BONDING. Neither the Committee, nor its members, agents or
advisors, shall be required to be bonded, except as otherwise required by ERISA.
(d) NO FUNDING. This Retirement Benefit Agreement constitutes a
mere promise by the Company to make payments in accordance with the terms of
this Retirement Benefit Agreement
25
and the Executive (and his Beneficiaries) shall have the status of general
unsecured creditors of the Company. Nothing in this Retirement Benefit Agreement
shall be construed to give the Executive rights to any specific assets of the
Company or of any other Person. It is the intent of the Company that this
Retirement Benefit Agreement be treated as unfunded for tax purposes and for
purposes of Title I of ERISA.
(e) WITHHOLDING. The Company may deduct from payments made under this
Retirement Benefit Agreement amounts in respect of taxes required to be withheld
by applicable law.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
C&K WITCO CORPORATION
By:
-------------------------------
THE EXECUTIVE
-----------------------------------
E. ▇▇▇▇ ▇▇▇▇
26
