Contract
Exhibit
10.1
EXECUTIVE
AGREEMENT, dated as of November 1, 2007 (the “Effective Date”), between
XXXX CORPORATION, a Virginia corporation (“Xxxx”), and [•]
(“Executive”).
WHEREAS
Executive is a key member of Olin’s management; and
WHEREAS
Olin believes that it is appropriate to provide Executive with certain specified
severance compensation and benefits in the event of termination of employment
under certain circumstances as set forth in more detail below.
NOW,
THEREFORE, in consideration of the mutual agreements, provisions and covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
SECTION
1. Definitions. As
used in this Agreement:
(a) “Board”
means the Board of Directors of Olin.
(b) “Cause”
means (i) the willful and continued failure of Executive to substantially
perform Executive’s duties (other than any such failure resulting from
Executive’s incapacity due to physical or mental illness or injury);
(ii) the willful engaging by Executive in gross misconduct significantly
and demonstrably financially injurious to Olin; (iii) a willful breach by
Executive of Olin’s Code of Business Conduct; or (iv) willful misconduct by
Executive in the course of Executive’s employment which is a felony or
fraud. No act or failure to act on the part of Executive will be
considered “willful” unless done or omitted not in good faith and without
reasonable belief that the action or omission was in the interests of Olin
or
not opposed to the interests of Olin and unless the act or failure to act has
not been cured by Executive within 14 days after written notice to Executive
specifying the nature of such violations. Notwithstanding the
foregoing, Executive shall not be deemed to have been terminated for Cause
without reasonable written notice to Executive setting forth the reasons for
Olin’s intention to terminate for Cause.
(c) “Executive
Severance” means:
(i) twelve
months of Executive’s then current monthly salary; plus
(ii) an
amount
equal to the greater of (A) Executive’s average annual award actually paid
in cash (or, in the event that the award in respect of the calendar year
immediately prior to the year in which the date of Termination occurs has not
yet been paid, the amount of such award that would have been payable in cash
in
the year in which the date of Termination occurs had Executive not incurred
a
Termination) under Olin’s short-term annual incentive compensation plans or
programs (“ICP”) (including zero if nothing was paid or deferred but including
any portion thereof Executive has elected to defer and, for the avoidance of
doubt, excluding any portion of an annual award that Executive does not have
a
right to receive currently in cash) in respect of the three calendar years
immediately preceding the calendar year in which the date of Termination occurs
(or if Executive has not participated in ICP for such three completed calendar
years, the average of any such awards in respect of the shorter period of years
in which Executive was a participant) and (B) Executive’s then current ICP
standard annual award in respect of the year in which the date of Termination
occurs.
(d) “Termination”
means the termination of Executive’s employment by Olin other than for Cause and
other than due to Executive’s death or disability. For purposes
solely of clarification, it is understood that (x) if, in connection with the
spinoff of an Xxxx business or Olin’s assets as a separate public company to
Olin’s shareholders, Executive accepts employment with, and becomes employed at,
the spunoff company or its affiliate, the termination of Executive’s employment
with Olin shall not be considered a “Termination” for purposes of this Agreement
and (y) except as provided in Section 4(d), in connection with the sale of
an
Xxxx business or assets to a third party or the transfer or sale of an Xxxx
business or Olin’s assets to a joint venture to be owned directly or indirectly
by Olin with one or more third parties, if Executive accepts employment with,
and becomes employed by, such buyer or its affiliate or such joint venture
or
its affiliate in connection with such transaction, such cessation of employment
with Olin shall not be considered a “Termination” for purposes of this
Agreement.
SECTION
2. Entire
Agreement; Prior Agreements. This Agreement (together with the
Executive Change in Control Agreement, dated as of November 1, 2007,
between Executive and Olin (the “CIC Agreement”)) sets forth the entire
understanding between Executive and Olin with respect to the subject matter
hereof and thereof. All oral or written agreements or
representations, express or implied, with respect to the subject matter of
this
Agreement are set forth in this Agreement and the CIC Agreement. All
prior agreements, understandings and obligations (whether written, oral, express
or implied) between Executive and Olin with respect to the subject matter hereof
are terminated as of the date hereof (including, specifically, the Executive
Agreement between Olin and Executive dated as of November 1, 2002) and are
superseded by this Agreement and the CIC Agreement. Notwithstanding
the foregoing, the provisions of Section 7 shall not supersede any other
agreements, understandings or obligations between Executive and Olin with
respect to the subject matter thereof, which shall remain in full force and
effect in accordance with their terms.
SECTION
3. Term;
Executive’s Duties. (a) This Agreement expires at the
close of business on January 26, 2011, provided that beginning on January 26,
2009 and on each January 26 thereafter (any such January 26 being referred
to
herein as a “Renewal Date”) the term of this Agreement shall be extended for one
additional year unless Olin has provided Executive with written notice at least
90 days in advance of the immediately succeeding Renewal Date that the term
of
this Agreement shall not be so extended, provided that the expiration of this
Agreement shall not affect any of Executive’s rights resulting from a
Termination occurring prior to such expiration. In the event of
Executive’s death while employed by Olin, this Agreement shall terminate and be
of no further force or effect on the date of Executive’s
death. Executive’s death will not affect any of Executive’s rights
resulting from a Termination prior to death.
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(b) During
the period of Executive’s employment by Olin, Executive shall devote Executive’s
full time efforts during normal business hours to Olin’s business and affairs,
except during vacation periods in accordance with Olin’s vacation policy and
periods of illness or incapacity. Nothing in this Agreement will
preclude Executive from devoting reasonable periods required for service as
a
director or a member of any organization involving no conflict of interest
with
Olin’s interest, provided that no additional position as director or member
shall be accepted by Executive during the period of Executive’s employment with
Olin without its prior consent.
SECTION
4. Executive
Severance Payment. (a) Subject to Section 4(b), in the
event of a Termination occurring before the expiration of this Agreement, Olin
will pay Executive, in equal installments in accordance with Olin’s normal
payroll practices, over the 12-month period that begins on the 55th day after
the date of Termination, an aggregate amount equal to the Executive Severance,
provided that no amounts shall be payable to Executive unless, on or prior
to
the 54th day following the date of Termination, (i) Executive shall have
executed the Release described in Section 6 and (ii) such Release shall
have become effective and irrevocable.
(b) Notwithstanding
Section 4(a), if Executive would otherwise have been required by Olin policy
to
retire at age 65, then if the date of Executive’s sixty-fifth birthday falls
during the 12-month period immediately following the date of Termination, the
aggregate amount payable pursuant to Section 4(a) shall be reduced to the amount
equal to the product of (i) the Executive Severance, multiplied by (ii) a
fraction, the numerator of which is the number of days from the date of
Termination through and including the date of Executive’s sixty-fifth birthday
and the denominator of which is 365, and such reduced amount shall be payable
(subject to the Release requirement set forth in Sections 4(a) and 6) in
equal installments in accordance with Olin’s normal payroll practices over the
period that begins on the 55th day after the date of Termination and ends on
the
55th day after the Executive’s sixty-fifth birthday.
(c) If
on the
date of Termination, Executive is eligible and is receiving payments under
any
then existing disability plan of Olin or its subsidiaries and affiliates, then
Executive agrees that all payments under such disability plan may, and will
be,
suspended and offset (subject to applicable law) during the 12-month period
specified in Section 4(a) (or, if applicable, such shorter as specified in
Section 4(b)). If, after such period, Executive remains eligible to
receive disability payments, then such payments shall resume in the amounts
and
in accordance with the provisions of the applicable disability plan of Olin
or
its subsidiaries and affiliates.
(d) In
the
event Executive, in connection with the sale of an Xxxx business or assets
to a
third party or the transfer of an Xxxx business or Olin assets to a joint
venture which would be owned directly or indirectly by Olin with one or more
third parties, ceases to be employed by Olin and with Olin’s consent becomes
employed by the buyer or its affiliate or the joint venture or its affiliate
(a
“New Employer”), Executive shall be entitled to the benefits provided under
Section 4(a) (determined as if Executive incurred a Termination upon such
cessation of employment with Olin) (subject to Sections 4(b), 4(c) and 17)
and
the first sentence of Section 5(a) (subject to Section 5(b)), and
Section 5(c), if Executive has a Termination with the New Employer (with
the New Employer being substituted for Olin in Section 1(d)) within 12 months
of
becoming employed by such New Employer. Subject to
Section 18(b), any cash compensation amounts paid under this Section 4(d)
shall be reduced by any severance, job transition or employment termination
payments such Executive receives in cash from the New Employer in connection
with the Termination.
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SECTION
5. Other
Benefits. (a) If Executive becomes entitled to payment
under Section 4(a) or 4(b), as applicable, then (i) Executive will be treated
as
if Executive remained employed for service purposes for 12 months following
the
date of Termination. If the date of Termination is prior to January
1, 2008, the Executive will receive 12 months of service credit under all Olin
qualified and non-qualified defined benefit pension plans for which Executive
was eligible at the time of termination. If the date of Termination
is after December 31, 2007, the Executive will receive 12 months of retirement
contributions to all Olin qualified and non-qualified defined contribution
plans
for which Executive was eligible at the time of the Termination. Such
contributions shall be based on the amount of the Executive
Severance. Such service credits or contributions shall be applied to
Olin’s qualified pension plans to the extent permitted under then applicable
law, otherwise such credit shall be applied to Olin’s non-qualified defined
benefit or defined contribution plan, as appropriate. Payments under
such non-qualified plans shall be due at the times and in the manner payments
are due Executive under Olin’s non-qualified defined benefit and defined
contribution pension plans, it being understood that Executive shall be
permitted to receive payments from Olin’s plans (assuming Executive otherwise
qualifies to receive such payments, is permitted to do so under the applicable
plan terms and elects to do so), during the period that Executive is receiving
payments pursuant to Section 4(a)), and that Executive’s defined benefit pension
benefit will be determined based on Executive’s actual age at the time
Executive’s pension benefit commences; and (ii) for 12 months from the date of
the Termination, Executive (and Executive’s covered dependents) will continue to
enjoy coverage on the same basis as a similarly situated active employee under
all Olin medical, dental, and life insurance plans to the extent Executive
was
enjoying such coverage immediately prior to the
Termination. Executive’s entitlement to insurance continuation
coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 would
commence at the end of the period during which insurance coverage is provided
under this Agreement without offset for coverage provided
hereunder. Executive shall accrue no vacation during the 12 months
following the date of Termination but shall be entitled to payment for accrued
and unused vacation for the calendar year in which the Termination
occurs. If Executive receives the Executive Severance (including the
amount referred to in Section 1(c)(ii)), Executive shall not be entitled to
an ICP award for the calendar year of Termination if Termination occurs during
the first calendar quarter. Even if Executive receives the Executive
Severance (including the amount referred to in Section 1(c)(ii)), if Termination
occurs during or after the second calendar quarter, Executive shall be entitled
to a prorated ICP award for the calendar year of Termination which shall be
determined by multiplying the average actual payout (as a percentage of the
ICP
standard) for all participants in the ICP in the same measurement organizational
unit by a fraction, the numerator of which is the number of weeks in the
calendar year prior to the Termination and the denominator of which is 52,
which
shall be payable at substantially the same time as ICP payments for the year
in
which Termination occurs are made to then current active employees, provided
that such payment shall be made to Executive no earlier than January 1 and
no
later than December 31 of the calendar year following the year in which the
date
of Termination occurs. Executive shall accrue no ICP award following
the date of Termination.
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(b) Notwithstanding
the foregoing Section 5(a), no such service credit or insurance coverage will
be
afforded by this Agreement with respect to any period after Executive’s
sixty-fifth birthday, if Executive would otherwise have been required by Olin
policy to retire at age 65.
(c) In
the
event of a Termination, Executive will be entitled at Olin’s expense to
outplacement counseling and associated services in accordance with Olin’s
customary practice at the time with respect to its senior executives who have
been terminated other than for Cause. It is understood that the
counseling and services contemplated by this Section 5(c) are intended to
facilitate the obtaining by Executive of other employment following a
Termination, and payments or benefits by Olin in lieu thereof will not be
available to Executive. The outplacement services will be provided
for a period of 12 months beginning within five days after the Release described
in Section 6 becomes effective and irrevocable.
SECTION
6. Release. Executive
shall not be entitled to receive any of the payments or benefits set forth
in
Sections 4 and 5 unless Executive executes a Release (substantially in the
form
of Exhibit A hereto) in favor of Olin and others set forth in Exhibit A relating
to all claims or liabilities of any kind relating to Executive’s employment with
Olin or an affiliate and the termination of such employment, and, on or prior
to
the 54th day
following the date of Termination, such Release becomes effective and
irrevocable in accordance with the terms thereof.
SECTION
7. Restrictive
Covenants. (a) As an inducement to Olin to provide the
payments and benefits to Executive hereunder, Executive acknowledges and agrees
that, except as otherwise provided in Section 7(g), in the event of Executive’s
termination of employment for any reason, Executive agrees to comply with the
restrictions set forth in Section 7(b) for a one-year period from the date
of
Termination (or, if earlier, until Executive attains age 65, if
Executive would otherwise have been required by Olin policy to retire at age
65)
(the “Non-Compete Term”), provided that if Executive’s employment is not
terminated by reason of a Termination (and Executive therefore is not entitled
to receive the payments and benefits set forth in Sections 4 and 5 hereof),
then
Executive need not comply with the restrictions set forth in Section
7(b).
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(b) Executive
acknowledges and agrees that, except as otherwise provided in Section
7(g), so long as Xxxx complies with its obligations to provide the
payments required under Sections 4 and 5, Executive shall not during the
Non-Compete Term, directly or indirectly: (i) render services for any
corporation, partnership, sole proprietorship or any other person or entity
or
engage in any business which, in the judgment of Olin, is or becomes competitive
with Olin or any affiliate, or which is or becomes otherwise prejudicial to or
in conflict with the interests of Olin or any affiliate (such judgment to be
based on Executive’s positions and responsibilities while employed by Olin or an
affiliate, Executive’s post-employment responsibilities and position with such
corporation, partnership, sole proprietorship, person, entity or business,
the
extent of past, current and potential competition or conflict between Olin
or an
affiliate and such other corporation, partnership, sole proprietorship, person,
entity or business, the effect on customers, suppliers and competitors of
Executive’s assuming such post-employment position, the guidelines established
in the then-current edition of Olin’s Standards of Ethical Business Practices,
and such other considerations as are deemed relevant given the applicable facts
and circumstances), provided that Executive shall be free to purchase as an
investment or otherwise, stock or other securities of such corporation,
partnership, sole proprietorship, person, entity or business so long as they
are
listed upon a recognized securities exchange or traded over the counter and
such
investment does not represent a substantial investment to Executive or a greater
than 1% equity interest in such corporation, partnership, sole proprietorship,
person, entity or business or (ii) for Executive or for any other person,
corporation, partnership, sole proprietorship, entity or business: (A) employ
or
attempt to employ or enter into any contractual arrangement with any employee
or
former employee of Olin, unless such employee or former employee has not been
employed by Olin for a period in excess of six months; (B) call on or solicit
any of the actual or targeted prospective clients of Olin on behalf of any
corporation, partnership, sole proprietorship, person, entity or business in
connection with any business competitive with the business of Olin; or (C)
make
known the names and addresses of such clients or any information relating in
any
manner to Olin’s trade or business relationships with such
customers.
(c) Executive
acknowledges and agrees (whether or not Executive is subject to the restrictions
set forth in Section 7(b)) not to disclose, either while in Olin’s employ or at
any time thereafter, to any person not employed by Olin, or not engaged to
render services to Olin, any confidential information obtained by Executive
while in the employ of Olin, including, without limitation, trade secrets,
know-how, improvements, discoveries, designs, customer and supplier lists,
business plans and strategies, forecasts, budgets, cost information, formulae,
processes, manufacturing equipment, compositions, computer programs, data bases
and tapes and films relating to the business of Olin and its subsidiaries and
affiliates (including majority-owned companies of such subsidiaries and
affiliates); provided, however, that this provision shall not preclude Executive
from disclosing information (i) known generally to the public (other than
pursuant to Executive’s act or omission) or (ii) to the extent required by law
or court order. Executive also agrees that upon leaving Olin’s employ
Executive will not take with Executive, without the prior written consent of
an
officer authorized to act in the matter by the Board, any drawing, blueprint,
specification or other document of Olin, its subsidiaries or affiliates, which
is of a confidential nature relating to Olin, its subsidiaries or affiliates,
including, without limitation, relating to its or their methods of distribution,
or any description of any formulae or secret processes.
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(d) Executive
acknowledges and agrees that (i) the restrictive covenants contained in this
Section 7 are reasonably necessary to protect the legitimate business interests
of Olin, and are not overbroad, overlong, or unfair and are not the result
of
overreaching, duress or coercion of any kind, (ii) Executive’s full, uninhibited
and faithful observance of each of the covenants contained in this Section
7
will not cause Executive any undue hardship, financial or otherwise, and that
enforcement of each of the covenants contained herein will not impair
Executive’s ability to obtain employment commensurate with Executive’s abilities
and on terms fully acceptable to Executive or otherwise to obtain income
required for the comfortable support of Executive and Executive’s family and the
satisfaction of the needs of Executive’s creditors and (iii) the restrictions
contained in this Section 7 are intended to be, and shall be, for the benefit
of
and shall be enforceable by, Olin’s successors and permitted
assigns.
(e) Executive
acknowledges and agrees that any violation of the provisions of Section 7 would
cause Olin irreparable damage and that if Executive breaches or threatens to
breach such provisions, Olin shall be entitled, in addition to any other rights
and remedies Olin may have at law or in equity, to obtain specific performance
of such covenants through injunction or other equitable relief from a court
of
competent jurisdiction, without proof of actual damages and without being
required to post bond.
(f) In
the event that any arbitrator or court of competent jurisdiction shall finally
hold that any provision of this Agreement (whether in whole or in part) is
void
or constitutes an unreasonable restriction against Executive, such provision
shall not be rendered void but shall be deemed to be modified to the minimum
extent necessary to make such provision enforceable for the longest duration
and
the greatest scope as such arbitrator or court may determine constitutes a
reasonable restriction under the circumstances.
(g) Notwithstanding
anything to the contrary in this Agreement, the provisions of Sections 7(a)
and
7(b) shall not apply to Executive, if Executive becomes entitled to receive
severance payments and benefits pursuant to the CIC Agreement.
SECTION
8. Successors;
Binding Agreement. (a) Olin will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise)
to
all or substantially all of the business or assets of Olin, by agreement, in
form and substance satisfactory to Executive, expressly to assume and agree
to
perform this Agreement in the same manner and to the same extent that Olin
would
be required to perform if no such succession had taken place. Failure
of Olin to obtain such assumption and agreement prior to the effectiveness
of
any such succession will be a breach of this Agreement and entitle Executive
to
compensation from Olin in the same amount and on the same terms as Executive
would be entitled to hereunder had a Termination occurred on the succession
date. As used in this Agreement, “Olin” means Olin as defined in the
preamble to this Agreement and any successor to its business or assets which
executes and delivers the agreement provided for in this Section 8 or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law or otherwise.
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(b) This
Agreement shall be enforceable by Executive’s personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees.
SECTION
9. Notices. For
the purpose of this Agreement, notices and all other communications provided
for
herein shall be in writing and shall be deemed to have been duly given when
delivered or mailed by United States registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If
to
Executive:
[•]
If
to
Olin:
Xxxx
Corporation
000
Xxxxxxxxxx Xxxxx
Xxxxx
0000
Xxxxxxx,
XX 00000-0000
Attention:
Corporate Secretary
or
to
such other address as either party may have furnished to the other in writing
in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
SECTION
10. Governing
Law. The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the Commonwealth of Virginia
(without giving effect to its principles of conflicts of law).
SECTION
11. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original but all of which together will constitute one and
the
same Agreement.
SECTION
12. Mitigation. Executive
will not be required to mitigate the amount of any payment provided for in
this
Agreement by seeking other employment or otherwise, nor shall any compensation
received by Executive from a third party reduce such payment except as
explicitly provided in this Agreement. Except as may otherwise be
expressly provided herein, nothing in this Agreement will be deemed to reduce
or
limit the rights which Executive may have under any employee benefit plan,
policy or arrangement of Olin and its subsidiaries and
affiliates. Except as expressly provided in this Agreement and
subject to Section 18(b), payments made pursuant to this Agreement shall not
be
affected by any set-off, counterclaim, recoupment, defense or other claim which
Olin and its subsidiaries and affiliates may have against
Executive.
SECTION
13. Withholding
of Taxes. Olin may withhold from any benefits payable under this
Agreement all federal, state, city or other taxes as shall be required pursuant
to any law or governmental regulation or ruling.
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SECTION
14. Non-assignability. This
Agreement is personal in nature and neither of the parties hereto shall, without
the consent of the other, assign or transfer this Agreement or any rights or
obligations hereunder, except as provided in Section 8 above. Without
limiting the foregoing, Executive’s right to receive payments hereunder shall
not be assignable or transferable, whether by pledge, creation of a security
interest or otherwise, other than a transfer by will or by the laws of descent
or distribution, and, in the event of any attempted assignment or transfer
by
Executive contrary to this Section 14, Olin shall have no liability to pay
any
amount so attempted to be assigned or transferred.
SECTION
15. No
Employment Right. This Agreement shall not be deemed to confer on
Executive a right to continued employment with Olin.
SECTION
16. Disputes/Arbitration. (a) Any
dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration at Olin’s corporate headquarters in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator’s award in any
court having jurisdiction; provided, however, that Executive shall be entitled
to seek specific performance of Executive’s right to be paid during the pendency
of any dispute or controversy arising under or in connection with this
Agreement.
(b) Olin
shall pay all reasonable legal fees and expenses, as they become due, which
Executive may incur prior to the third anniversary of the expiration of this
Agreement to enforce this Agreement through arbitration or otherwise unless
the
arbitrator determines that Executive had no reasonable basis for Executive’s
claim. Should Olin dispute the entitlement of Executive to such fees and
expenses, the burden of proof shall be on Olin to establish that Executive
had
no reasonable basis for Executive’s claim. All reimbursable expenses
shall be reimbursed to Executive as promptly as practicable and in any event
not
later than the last day of the calendar year after the calendar year in which
the expenses are incurred, and the amount of expenses eligible for reimbursement
during any calendar year will not affect the amount of expenses eligible for
reimbursement in any other calendar year.
(c) If
any
payment which is due to Executive pursuant to this Agreement has not been paid
within ten (10) days of the date on which such payment was due, Executive shall
be entitled to receive interest thereon from the due date until paid at an
annual rate of interest equal to the Prime Rate reported in the Wall Street
Journal, Northeast Edition, on the last business day of the month preceding
the
due date, compounded annually.
SECTION
17. Miscellaneous. (a) Except
as specifically provided in Section 18(d), no provisions of this Agreement
may be modified, waived or discharged unless such modification, waiver or
discharge is agreed to in writing signed by Executive and Olin. No
waiver by either party hereto at any time of any breach by the other party
hereto of, or compliance with, any condition or provision of this Agreement
to
be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time.
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(b) The
invalidity or unenforceability of any provisions of this Agreement shall not
affect the validity or enforceability of any other provisions of this Agreement,
which shall remain in full force and effect to the fullest extent permitted
by
law.
(c) Executive
may not cumulate the benefits provided under this Agreement with any severance
or similar benefits (“Other Severance Benefits”) that Executive may be entitled
to by agreement with Olin (including, without limitation, pursuant to the CIC
Agreement or an employment, severance or termination agreement, plan,
arrangement or policy) or under applicable law in connection with the
termination of Executive’s employment. Subject to Section 18(b),
to the extent that Executive receives any Other Severance Benefits, then the
payments and benefits payable hereunder to such participant shall be reduced
by
a like amount. To the extent Olin is required to provide payments or
benefits to any Executive under the Worker Adjustment and Retraining
Notification Act (or any state, local or foreign law relating to severance
or
dismissal benefits), the benefits payable hereunder shall be first applied
to
satisfy such obligation.
SECTION
18. Section
409A. (a) It is intended that the provisions of this
Agreement comply with Section 409A of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder as in effect from time to time
(collectively, hereinafter, “Section 409A”), and all provisions of this
Agreement shall be construed and interpreted in a manner consistent with the
requirements for avoiding taxes or penalties under Section 409A.
(b) Neither
Executive nor any of Executive's creditors or beneficiaries shall have the
right
to subject any deferred compensation (within the meaning of Section 409A)
payable under this Agreement or under any other plan, policy, arrangement or
agreement of or with Olin or any of its affiliates (this Agreement and such
other plans, policies, arrangements and agreements, the “Olin Plans”) to any
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment or garnishment. Except as permitted under Section 409A,
any deferred compensation (within the meaning of Section 409A) payable to
Executive or for Executive's benefit under any Olin Plan may not be reduced
by,
or offset against, any amount owing by Executive to Olin or any of its
affiliates.
(c) If,
at
the time of Executive's separation from service (within the meaning of Section
409A), (i) Executive shall be a specified employee (within the meaning of
Section 409A and using the identification methodology selected by Olin from
time
to time) and (ii) Olin shall make a good faith determination that an amount
payable under an Olin Plan constitutes deferred compensation (within the meaning
of Section 409A) the payment of which is required to be delayed pursuant to
the six-month delay rule set forth in Section 409A in order to avoid taxes
or
penalties under Section 409A, then Olin (or its affiliate, as applicable)
shall not pay such amount on the otherwise scheduled payment date but shall
instead accumulate such amount and pay it, without interest, on the first
business day after such six-month period.
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(d) Notwithstanding
any provision of this Agreement or any Olin Plan to the contrary, in light
of
the uncertainty with respect to the proper application of Section 409A, Olin
reserves the right to make amendments to this Agreement and any Olin Plan as
Xxxx xxxxx necessary or desirable to avoid the imposition of taxes or penalties
under Section 409A. In any case, except as specifically provided in
any Olin Plan, Executive is solely responsible and liable for the satisfaction
of all taxes and penalties that may be imposed on Executive or for Executive's
account in connection with any Olin Plan (including any taxes and penalties
under Section 409A), and neither Olin nor any affiliate shall have any
obligation to indemnify or otherwise hold Executive harmless from any or all
of
such taxes or penalties.
(e) For
purposes of Section 409A, each installment of Executive Severance will be deemed
to be a separate payment as permitted under Treasury Regulation Section
1.409A-2(b)(2)(iii).
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered as of the day and year first above set forth.
XXXX
CORPORATION
______________________________
_________________________
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