(Form of Ashland Inc. Executive Employment Agreement)
Name and Address
Dear _________:
Ashland Inc. considers the establishment and maintenance of a
sound and vital management to be essential to protecting and enhancing the
best interest of the Company and its shareholders. In this regard, the
Company recognizes that, as is the case with many publicly-held
corporations, the possibility of a Change in Control of the Company does
exist and that such possibility, and the uncertainty and questions which a
Change in Control of the Company may raise among management, may result in
the departure or distraction of management personnel to the detriment of
the Company and its shareholders. In addition, difficulties in attracting
and retaining new senior management personnel may be experienced.
Accordingly, on the basis of the recommendation of the Personnel and
Compensation Committee of the Board, the Board has determined that
appropriate steps should be taken to reinforce and encourage the continued
attention and dedication of certain members of the Company's management,
including you, to their assigned duties without distraction in the face of
the potentially disruptive circumstances arising from the possibility of a
Change in Control of the Company.
In order to encourage you to remain in the employ of the Company,
this Agreement sets forth those benefits which the Company will provide to
you in the event your employment with the Company (1) is terminated without
Cause during the term of this Agreement, or (2) you resign for Good Reason
following a Change in Control of the Company under the circumstances
described below.
SECTION A. DEFINITIONS
1. "Agreement" shall mean this letter agreement.
2. "Board" shall mean the Company's Board of Directors.
3. "Cause" shall occur hereunder only upon (A) the willful and
continued failure by you substantially to perform your duties with the
Company (other than any such failure resulting from your incapacity due to
physical or mental illness) after a written demand for substantial
performance is delivered to you by the Board which specifically identifies
the manner in which the Board believes that you have not substantially
performed your duties, (B) the willful engaging by you in gross misconduct
materially and demonstrably injurious to the Company after a written demand
to cease such misconduct is delivered to you by the Board, or (C) your
conviction of or the entering of a plea of nolo contendre to the commission
of a felony involving moral turpitude. For purposes of this paragraph, no
act, or failure to act, on your part shall be considered "willful" unless
done, or omitted to be done, by you not in good faith and without
reasonable belief that your action or omission was in the best interest of
the Company. Notwithstanding the foregoing, you shall not be deemed to have
been terminated for Cause unless and until there shall have been delivered
to you a copy of a resolution duly adopted by the affirmative vote of not
less than three-quarters of the entire membership of the Board at a meeting
of the Board called and held for the purpose, among others, (after at least
20 days prior notice to you and an opportunity for you, together with your
counsel, to be heard before the Board), of finding that (i) in the good
faith opinion of the Board you failed to perform your duties or engaged in
misconduct as set forth above in subparagraph (A) or (B) of this paragraph,
and that you did not correct such failure or cease such misconduct after
being requested to do so by the Board, or (ii) as set forth in subparagraph
(C) of this paragraph, you have been convicted of or have entered a plea of
nolo contendre to the commission of a felony involving moral turpitude.
4. "Change in Control of the Company" shall be deemed to have
occurred if (i) there shall be consummated (A) any consolidation, merger,
or share exchange of the Company in which the Company is not the continuing
or surviving corporation or pursuant to which shares of the Company's
Common Stock would be converted into cash, securities or other property,
other than a merger of the Company in which the holders of the Company's
Common Stock immediately prior to the merger have substantially the same
proportionate ownership of common stock of the surviving corporation
immediately after the merger, or (B) any sale, lease, exchange or transfer
(in one transaction or a series of related transactions) of all or
substantially all the assets of the Company, or (ii) the shareholders of
the Company shall approve any plan or proposal for the liquidation or
dissolution of the Company, or (iii) any Person, other than the Company or
a Subsidiary thereof or any employee benefit plan sponsored by the Company
or a Subsidiary thereof, shall become the beneficial owner (within the
meaning of Rule 13d-3 under the Exchange Act) of securities of the Company
representing 15% or more of the combined voting power of the Company's then
outstanding securities ordinarily (and apart from rights accruing in
special circumstances) having the right to vote in the election of
directors, as a result of a tender or exchange offer, open market
purchases, privately-negotiated purchases or otherwise, or (iv) at any time
during a period of two (2) consecutive years, individuals who at the
beginning of such period constituted the Board shall cease for any reason
to constitute at least a majority thereof, unless the election or the
nomination for election by the Company's shareholders of each new director
during such two-year period was approved by a vote of at least two-thirds
of the directors then still in office who were directors at the beginning
of such two-year period.
5. "COBRA" shall mean the Consolidated Omnibus Budget
Reconciliation Act, as amended.
6. "Common Stock" shall mean the common stock, par value $1.00 per
share, of the Company.
7. "Company" shall mean Ashland Inc. and any successor to its
business and/or assets which executes and delivers the agreement provided
for in Section F, paragraph 1 hereof or which otherwise becomes bound by
all the terms and provisions of this Agreement by operation of law.
8. "Competitive Activity" shall have the meaning as set forth in
Section C, paragraph 2.
9. "Competitive Operation" shall have the meaning as set forth in
Section C, paragraph 2.
10. "Confidential Information" shall mean information relating to
the Company's, its divisions' and Subsidiaries' and their successors'
business practices and business interests, including, but not limited to,
customer and supplier lists, business forecasts, business and strategic
plans, financial and sales information, information relating to products,
process, equipment, operations, marketing programs, research, or product
development, engineering records, computer systems and software, personnel
records or legal records.
11. "Date Of Termination" shall mean: (A) if this Agreement is
terminated for Disability, thirty (30) days after the Notice of Termination
is given by the Company to you (provided that you shall not have returned
to the performance of your duties on a full-time basis during such thirty
(30) day period), (B) if your employment is terminated for Good Reason by
you, the date specified in the Notice of Termination, and (C) if your
employment is terminated for any other reason, the date on which a Notice
of Termination is received by you unless a later date is specified.
12. "Disability" shall occur when: if, as a result of your
incapacity due to physical or mental illness, you shall have been absent
from your duties with the Company for six (6) consecutive months and shall
not have returned to full-time performance of your duties within thirty
(30) days after written notice is given to you by the Company.
13. "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
14. "Excise Tax" shall have the meaning as set forth in Section E.
15. "Good Reason" shall mean:
(a) without your express written consent, the assignment to you
after a Change in Control of the Company, of any duties
inconsistent with, or a significant diminution of, your positions,
duties, responsibilities or status with the Company immediately
prior to a Change in Control of the Company, or a diminution in
your titles or offices as in effect immediately prior to a Change
in Control of the Company or any removal of you from, or any
failure to reelect you to, any of such positions;
(b) a reduction by the Company in your base salary in effect
immediately prior to a Change in Control of the Company or a
failure by the Company to increase (within fifteen months of your
last increase in base salary) your base salary after a Change in
Control of the Company in an amount which is substantially
similar, on a percentage basis, to the average percentage increase
in base salary for all corporate officers of the Company during
the preceding twelve (12) months;
(c) the failure by the Company to continue in effect any thrift,
stock ownership, pension, life insurance, health, dental and
accident or disability plan in which you are participating or are
eligible to participate at the time of a Change in Control of the
Company (or plans providing you with substantially similar
benefits), except as otherwise required by the terms of such plans
as in effect at the time of any Change in Control of the Company,
or the taking of any action by the Company which would adversely
affect your participation in or materially reduce your benefits
under any of such plans or deprive you of any material fringe
benefits enjoyed by you at the time of the Change in Control of
the Company or the failure by the Company to provide you with the
number of paid vacation days to which you are entitled in
accordance with the vacation policies of the Company in effect at
the time of a Change in Control of the Company, unless a
comparable plan is substituted therefor;
(d) the failure by the Company to continue in effect any incentive
plan or arrangement (including without limitation, the Company's
Incentive Compensation plan, annual bonus and contingent bonus
arrangements and credits and the right to receive performance
awards and similar incentive compensation benefits) in which you
are participating at the time of a Change in Control of the
Company (or to substitute and continue other plans or arrangements
providing you with substantially similar benefits), except as
otherwise required by the terms of such plans as in effect at the
time of any Change in Control of the Company;
(e) the failure by the Company to continue in effect any plan or
arrangement to receive securities of the Company (including,
without limitation, any plan or arrangement to receive and
exercise stock options, stock appreciation rights, restricted
stock or grants thereof or to acquire stock or other securities of
the Company) in which you are participating at the time of a
Change in Control of the Company (or to substitute and continue
plans or arrangements providing you with substantially similar
benefits), except as otherwise required by the terms of such plans
as in effect at the time of any Change in Control of the Company,
or the taking of any action by the Company which would adversely
affect your participation in or materially reduce your benefits
under any such plan;
(f) the relocation of the Company's principal executive offices to
a location outside the Covington, Kentucky area, or the Company's
requiring you to be based anywhere other than at your current
location or at the location of the Company's principal executive
or divisional offices, except for required travel on the Company's
business to an extent substantially consistent with your present
business travel obligations, or, in the event you consent to any
such relocation of the Company's principal executive or divisional
offices, the failure by the Company to pay (or reimburse you for)
all reasonable moving expenses incurred by you relating to a
change of your principal residence in connection with such
relocation and to indemnify you against any loss (defined as the
difference between the actual sale price of such residence and the
greater of (a) your aggregate investment in such residence, or (b)
the fair market value of such residence as determined by
Relocation Properties Management LLC or other real estate
appraiser reasonably satisfactory to both you and the Company)
realized in the sale of your principal residence in connection
with any such change of residence;
(g) any breach by the Company of any material provision of this
Agreement; or
(h) any failure by the Company to obtain the assumption of this
Agreement by any successor or assign of the Company.
16. "Gross-up Payment" shall have the meaning as set forth in
Section E.
17. "Notice of Termination" shall mean a notice which shall
indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of your employment under the
provision so indicated.
18. "Payment" shall have the meaning as set forth in Section E.
19. "Person" shall have the meaning as set forth in the Sections
13(d) and 14(d)(2) of the Exchange Act.
20. "Qualifying Termination" shall mean the termination of your
employment after a Change in Control of the Company while this Agreement is
in effect, unless such termination is (a) by reason of your death or
Disability, (b) by the Company for Cause, or (c) by you other than for Good
Reason.
21. "Salary Continuation Period" shall have the meaning set forth
in Section C, paragraph 1.
22. "Subsidiary" shall mean any corporation of which more than 20%
of the outstanding capital stock having ordinary voting power to elect a
majority of the board of directors of such corporation (irrespective of
whether or not at the time capital stock of any other class or classes of
such corporation shall or might have voting power upon the occurrence of
any contingency) is at the time directly or indirectly owned by the
Company, by the Company and one or more other Subsidiaries, or by one or
more other Subsidiaries.
SECTION B. TERM AND BENEFITS
This Agreement shall be in effect for two years from the date you
accept this Agreement and shall automatically renew for successive two (2)
year periods on the first day of each month. This Agreement may be
terminated by either party provided that at least fifteen (15) days advance
written notice is given by either party to the other party hereto prior to
the commencement of the next succeeding two (2) year period at which time
the Agreement shall terminate at the end of the next succeeding two (2)
year period. During the term of employment hereunder, you agree to devote
your full business time and attention to the business and affairs of the
Company and to use your best efforts, skills and abilities to promote its
interests.
In the event of your retirement, at your election or in accordance
with the Company's generally applicable retirement policies, as in effect
from time to time, this Agreement shall automatically terminate, without
additional notice to you, as of the effective date of your retirement.
Notwithstanding the first sentence of this paragraph and the first and
second sentences of this Section B, if a Change in Control of the Company
should occur while you are still an employee of the Company and while this
Agreement is in effect, then this Agreement shall continue in effect from
the date of such Change in Control of the Company for a period of two
years. Prior to a Change in Control of the Company, your employment may be
terminated by the Company for Cause at any time pursuant to a Notice of
Termination. In such event, you shall not be entitled to the benefits
provided hereunder. No benefits shall be payable hereunder unless your
employment is terminated without Cause or there shall have been a Change in
Control of the Company and your employment by the Company shall thereafter
terminate in accordance with Section D hereof.
SECTION C. TERMINATION PRIOR TO CHANGE IN CONTROL
1. Compensation Prior to a Change in Control. If you are
terminated by the Company without Cause during the term of this Agreement
and prior to a Change in Control of the Company, you shall be entitled to
receive:
(a) payment of your highest salary during the prior two year
fiscal years preceding the fiscal year in which your Date of
Termination occurs for a period of two (2) years after your Date
of Termination ("Salary Continuation Period");
(b) continuation of your and your eligible dependents' existing
participation at regular employee rates, in effect from time to
time, in all of the Company's medical, dental and group life plans
or programs in which you were participating immediately prior to
your Date of Termination during the Salary Continuation Period,
after which time you and your eligible dependents will be eligible
for coverage under COBRA. In the event that your continued
participation in any such plan or program is for whatever reason
impossible, the Company shall arrange upon comparable terms to
provide you with benefits substantially equivalent on an after tax
basis to those which you and your eligible dependents are, or
become, entitled to receive under such plans and programs;
(c) if and when payments are made, payment in cash of any pro-rata
portion (up through your Date Of Termination) of any amounts you
would have received under the Company's performance unit/share
plans, incentive compensation plan and any other similar executive
compensation plan in which you were a participant immediately
prior to your Date of Termination; and
(d) outplacement services historically offered to displaced
employees by the Company under substantially the same terms and
fee structure as is consistent with an employee in your position.
However, in the event that your employment with the Company is terminated
during the term of this Agreement and prior to a Change in Control of the
Company and such termination is not a termination without Cause (including,
without limitation, termination by reason of your voluntary termination,
retirement, death, or Disability), or if your employment is terminated for
Cause during the term of this Agreement, you shall not be entitled to
receive any benefits under this Agreement.
2. Competitive Activity. In consideration of the foregoing, you
agree that if your employment is terminated during the term of this
Agreement and prior to a Change in Control of the Company, then during a
period ending six (6) months following your Date of Termination you shall
not engage in any Competitive Activity; provided, you shall not be subject
to the foregoing obligation if the Company breaches a material provision of
this Agreement. If you engage in any Competitive Activity during that
period, the Company shall be entitled to recover any benefits paid to you
under this Agreement. For purposes of this Agreement, "Competitive
Activity" shall mean your participation, without the written consent of the
General Counsel of the Company, in the management of any business operation
of any enterprise if such operation (a "Competitive Operation") engages in
substantial and direct competition with any business operation actively
conducted by the Company or its divisions and Subsidiaries on your Date of
Termination. For purposes of this paragraph, a business operation shall be
considered a Competitive Operation if such business sells a competitive
product or service which constitutes (i) 15% of that business's total sales
or (ii) 15% of the total sales of any individual subsidiary or division of
that business and, in either event, the Company's sales of a similar
product or service constitutes (i) 15% of the total sales of the Company or
(ii) 15% of the total sales of any individual Subsidiary or division of the
Company. Competitive Activity shall not include (i) the mere ownership of
securities in any enterprise, or (ii) participation in the management of
any enterprise or any business operation thereof, other than in connection
with a Competitive Operation of such enterprise.
3. Release. In exchange for the benefits herein, you completely
release the Company to the fullest extent permitted by law from all claims
you may have against the Company on your Date of Termination except claims
related to (a) claims for benefits to which you are entitled under this
Agreement and (b) any applicable worker's compensation or unemployment
compensation laws.
SECTION D. TERMINATION FOLLOWING CHANGE IN CONTROL
1. Qualifying Termination. If your termination is a Qualifying
Termination, you shall be entitled to receive the payments and benefits
provided in this Section.
2. Notice of Termination. Except as provided in Section F,
paragraph 1, any termination of your employment following a Change in
Control of the Company shall be communicated by written Notice of
Termination to the other party hereto. No termination shall be effective
without such Notice of Termination.
3. Compensation Upon Termination After a Change in Control.
(a) If your termination is a Qualifying Termination, then the
Company shall pay to you as severance pay (and without regard to
the provisions of any benefit or incentive plan), in a lump sum
cash payment on the fifth (5th) day following your Date of
Termination, an amount equal to three (3) times the highest of
your annual compensation (including annual incentive compensation)
paid or payable in respect of the prior three (3) fiscal years
preceding the fiscal year in which your Date of Termination occurs
or, if greater, the prior three (3) fiscal years preceding the
fiscal year in which the Change in Control of the Company occurs.
(b) If your termination is a Qualifying Termination, the Company
shall, in addition to the payments required by the preceding
paragraph:
(i) provide for continuation of your and your eligible
dependents' participation at regular employee rates, in
effect from time to time, in all of the Company's
medical, dental and group life plans or programs in which
you were participating immediately prior to your Date of
Termination for a period of three years from your Date of
Termination, after which time you and your eligible
dependents will be eligible for coverage under COBRA. In
the event that your continued participation in any such
plan or program is for whatever reason impossible, the
Company shall arrange upon comparable terms to provide
you with benefits substantially equivalent on an after
tax basis to those which you and your eligible dependents
are, or become, entitled to receive under such plans and
programs;
(ii) provide for full payment in cash of any performance
unit/share awards in existence on your Date of
Termination less any amounts paid to you under the
applicable performance unit/share plan upon a Change in
Control of the Company pursuant to the provisions of such
plan;
(iii) provide for payment in cash of any incentive
compensation (a) for the fiscal year during which the
Change in Control of the Company occurred and any prior
fiscal years for which you have not yet received payment,
and (b) payment of incentive compensation for the fiscal
year in which your Date of Termination occurs calculated
as the greater of (x) the highest incentive compensation
amount you were awarded in the last (3) three fiscal
years preceding the fiscal year in which your Date of
Termination occurs and (y) 125% of your gross base salary
(gross base salary to be calculated as of the day prior
to the date the Change in Control of the Company occurs
or, if greater, your Date of Termination);
(iv) provide benefits or compensation under any
compensation plan, arrangement or agreement not in
existence as of the date hereof but which may be
established by the Company prior to your Date of
Termination at such time as payments are made thereunder
to the same extent as if you had been a full-time
employee on the date such payments would otherwise have
been made or benefits vested;
(v) if requested by you, purchase your principal
residence in accordance with the provisions of Relocation
Properties Management LLC that have historically applied
in the case of transfers of the Company's employees;
provided, however, that the purchase price of your
residence shall be deemed to be the greater of (a) your
aggregate investment in such residence, or (b) the then
current fair market value of such residence;
(vi) for one (1) year after your Date of Termination,
provide and pay for outplacement services, by a firm
reasonably acceptable to you, that have historically been
offered to displaced employees generally by the Company
under substantially the same terms and fee structure as
is consistent with an employee in your then current
position (or, if higher, your position immediately prior
to the Change in Control of the Company);
(vii) for one (1) year after your Date of Termination,
provide and pay for financial planning services, by a
firm reasonably acceptable to you, that have historically
been offered to you under substantially the same terms
and fee structure as is consistent with an employee in
your then current position (or, if higher, your position
immediately prior to the Change in Control of the
Company);
(viii) pay to you an amount equal to the value of all
unused, earned and accrued vacation as of your Date of
Termination pursuant to the Company's policies in effect
immediately prior to the Change in Control of the
Company; and
(ix) provide for the immediate vesting of all stock
options held by you, as of your Date of Termination,
under any Company stock option plan and all such options
shall be exerciseable for the remaining terms of the
options.
(c) Unless otherwise provided in this Agreement or in the
applicable compensation or stock option plan or program, all
payments shall be made to you within thirty (30) days after your
Date of Termination. The benefits in this Agreement are in addition
to all accrued and vested benefits to which you are entitled to
under any of the Company's plans and arrangements (to the extent
accrued and vested benefits are relevant under the particular plan
or arrangement), including but not limited to, the accrued vested
benefits to which you are eligible and entitled to receive under
any of the Company's qualified and non-qualified benefit or
retirement plans, or any successor plans in effect on your Date of
Termination hereunder. For these purposes, accrued and vested
benefits shall include any extra, special or additional benefits
under such qualified and non-qualified benefit or retirement plans
that become due because of the Change in Control.
(d) You shall not be required to mitigate the amount of any
payment provided for in this Section by seeking other employment
or otherwise, nor shall the amount of any payment provided for in
this Section be reduced by any compensation earned by you as the
result of employment by another employer after your Date of
Termination, or otherwise. Except as provided herein, the Company
shall have no right to set off against any amount owing hereunder
any claim which it may have against you.
SECTION E. ADDITIONAL PAYMENTS BY THE COMPANY
Notwithstanding anything to the contrary in this Agreement, in the
event that any payment or distribution by the Company to or for your
benefit, whether paid or payable or distributed or distributable pursuant
to the terms of this Agreement or otherwise (a "Payment"), would be subject
to the excise tax imposed by Section 4999 of the Internal Revenue Code of
1986, as amended, or any interest or penalties with respect to such excise
tax (such excise tax, together with any such interest or penalties, are
hereinafter collectively referred to as the "Excise Tax"), the Company
shall pay to you an additional payment (a "Gross-up Payment") in an amount
such that after payment by you of all taxes (including any interest or
penalties imposed with respect to such taxes), including any income,
employment and Excise Tax imposed on any Gross-up Payment, you retain an
amount of the Gross-up Payment equal to the Excise Tax imposed upon the
Payments. You and the Company shall make an initial determination as to
whether a Gross-up Payment is required and the amount of any such Gross-up
Payment. If you and the Company can not agree on whether a Gross-up Payment
is required or the amount thereof, then an independent nationally
recognized accounting firm, appointed by you, shall determine the amount of
the Gross-up Payment. The Company shall pay all expenses which you may
incur in determining the Gross-up Payment. You shall notify the Company in
writing of any claim by the Internal Revenue Service which, if successful,
would require the Company to make a Gross-up Payment (or a Gross-up Payment
in excess of that, if any, initially determined by the Company and you)
within ten days of the receipt of such claim. The Company shall notify you
in writing at least ten days prior to the due date of any response required
with respect to such claim if it plans to contest the claim. If the Company
decides to contest such claim, you shall cooperate fully with the Company
in such action; provided, however, the Company shall bear and pay directly
or indirectly all costs and expenses (including additional interest and
penalties) incurred in connection with such action and shall indemnify and
hold you harmless, on an after-tax basis, for any Excise Tax or income tax,
including interest and penalties with respect thereto, imposed as a result
of the Company's action. If, as a result of the Company's action with
respect to a claim, you receive a refund of any amount paid by the Company
with respect to such claim, you shall promptly pay such refund to the
Company. If the Company fails to timely notify you whether it will contest
such claim or the Company determines not to contest such claim, then the
Company shall immediately pay to you the portion of such claim, if any,
which it has not previously paid to you.
SECTION F. MISCELLANEOUS
1. Assumption of Agreement. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation, share
exchange or otherwise) to all or substantially all of the business and/or
assets of the Company, by agreement in form and substance satisfactory to
you, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform
it if no such succession had taken place. Failure of the Company to obtain
such agreement prior to the effectiveness of any such succession shall be a
breach of a material provision of this Agreement and shall entitle you to
compensation in the same amount and on the same terms as you would be
entitled pursuant to Section D, except that for purposes of implementing
the foregoing, the date on which any such succession becomes effective
shall be deemed your Date of Termination without a Notice of Termination
being given.
2. Confidentiality. All Confidential Information which you acquire
or have acquired in connection with or as a result of the performance of
services for the Company, whether under this Agreement or prior to the
effective date of this Agreement, shall be kept secret and confidential by
you unless (a) the Company otherwise consents, (b) the Company breaches any
material provision of this Agreement, or (c) you are legally required to
disclose such Confidential Information by a court of competent
jurisdiction. This covenant of confidentiality shall extend beyond the term
of this Agreement and shall survive the termination of this Agreement for
any reason. If you breach this covenant of confidentiality, the Company
shall be entitled to recover from any benefits paid to you under this
Agreement its damages resulting from such breach.
3. Employment. You agree to be bound by the terms and conditions
of this Agreement and to remain in the employ of the Company during any
period following any public announcement by any person of any proposed
transaction or transactions which, if effected, would result in a Change in
Control of the Company until a Change in Control of the Company has taken
place. However, nothing contained in this Agreement shall impair or
interfere in any way with the right of the Company to terminate your
employment for Cause prior to a Change in Control of the Company.
4. Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled
exclusively by arbitration in accordance with the Center for Public
Resources' Model ADR Procedures and Practices, and judgment upon the award
rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. Notwithstanding the foregoing, the Company shall not
be restricted from seeking equitable relief, including injunctive relief as
set forth in paragraph 5 of this Section, in the appropriate forum. Any
cost of arbitration will be paid by the Company. In the event of a dispute
over the existence of Good Reason or Cause after a Change in Control of the
Company, the Company shall continue to pay your salary, bonuses and plan
benefits pending resolution of the dispute. If you prevail in the
arbitration, the amounts due to you under this Agreement are to be
immediately paid to you.
5. Injunctive Relief. You acknowledge and agree that the remedy of
the Company at law for any breach of the covenants and agreements contained
in paragraph 2 of this Section and in Section C, paragraph 2 will be
inadequate, and that the Company will be entitled to injunctive relief
against any such breach or any threatened, imminent, probable or possible
breach. You represent and agree that such injunctive relief shall not
prohibit you from earning a livelihood acceptable to you.
6. Notice. For the purposes of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United
States registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the first page of this
Agreement, provided that all notices to the Company shall be directed to
the attention of the General Counsel of the Company, 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.
7. Indemnification. The Company will indemnify you to the fullest
extent permitted by the laws of the Commonwealth of Kentucky and the
existing By-laws of the Company, in respect of all your services rendered
to the Company and its divisions and Subsidiaries prior to your Date of
Termination. You shall be entitled to the protection of any insurance
policies the Company now or hereafter maintains generally for the benefit
of its directors, officers and employees (but only to the extent of the
coverage afforded by the existing provisions of such policies) to protect
against all costs, charges and expenses whatsoever incurred or sustained by
you in connection with any action, suit or proceeding to which you may be
made a party by reason of your being or having been a director, officer or
employee of the Company or any of its divisions or Subsidiaries during your
employment therewith.
8. Further Assurances. Each party hereto agrees to furnish and
execute such additional forms and documents, and to take such further
action, as shall be reasonably and customarily required in connection with
the performance of this Agreement or the payment of benefits hereunder.
9. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by you and such officer(s) as may be
specifically designated by the Board. 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. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set
forth expressly in this Agreement.
10. Termination of other Agreements. Upon execution by both
parties, this Agreement shall terminate all prior employment and severance
agreements between you and the Company and its divisions or Subsidiaries.
11. Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement, which shall remain in full force
and effect.
12. 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 instrument.
13. Legal Fees And Expenses. Any other provision of this Agreement
notwithstanding, the Company shall pay all legal fees and expenses which
you may incur as a result of the Company's unsuccessful contesting of the
validity, enforceability or your interpretation of, or determinations
under, any part of this Agreement.
14. Governing Law. This Agreement shall be governed in all
respects by the laws of the Commonwealth of Kentucky.
15. Agreement Binding on Successors. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. This Agreement shall inure to the
benefit of and be enforceable by your personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If you should die while any amounts would still be payable to you
hereunder if you had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this
Agreement to your devisee, legatee, or other designee or, if there be no
such designee, to your estate.
16. Headings. All Headings are inserted for convenience only and
shall not affect any construction or interpretation of this Agreement.
If this Agreement correctly sets forth our agreement on the
subject matter hereof, please sign and return to the Company the enclosed
copy of this Agreement which will then constitute our agreement on this
matter.
Sincerely,
ASHLAND INC.
By:
ACCEPTED this _____ day of
__________________, 19___.
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Name of employee