Exhibit 10
OWENS CORNING
STOCK PERFORMANCE INCENTIVE PLAN
(as amended and restated effective January 1, 19991998)
ARTICLE 1. Establishment, Purpose, and Duration
1.1 Establishment of the Plan. Owens Corning, a Delaware
corporation (hereinafter referred to as the "Company"), has
previously established an incentive compensation plan known as the
"Owens Corning Stock Performance Incentive Plan" (such Plan as
amended from time to time being hereinafter referred to as the
"Plan"), as set forth in this document. The Plan permits the grant
of Nonqualified Stock Options, Incentive Stock Options, and Stock
Bonuses (including Phantom Stock Bonuses and Restricted Stock).
The Board of Directors of the Company approved the Plan on
January 23, 1992, subject to ratification by an affirmative vote
of a majority of Shares of Common Stock present and entitled to
vote at the 1992 Annual Stockholders Meeting. Following such
ratification, the Plan became effective May 1, 1992 (the
"Effective Date"). The Board of Directors of the Company
thereafter amended the Plan on June 15, 1995, subject to
stockholder approval of the amendments at the 1996 Annual
Stockholders Meeting. The Plan as so amended became effective as
of June 15, 1995. Pursuant to authority delegated by resolution
of the Board of Directors to the Company, the Plan has been
amended and restated effective January 1, 1998 and January 1,
1999, and shall remain in effect as provided in Section 1.3
herein.
1.2 Purpose of the Plan. The purpose of the Plan is to promote
the success and enhance the value of the Company by linking the
personal interests of Participants to those of Company
stockholders. The Plan is further intended to provide flexibility
to the Company in its ability to motivate, attract, and retain the
services of Participants upon whose judgment, interest, and
special effort the successful conduct of its operation largely is
dependent.
1.3 Duration of the Plan. The Plan shall commence on the
Effective Date, as described in Section 1.1 herein, and shall
remain in effect, subject to the right of the Board of Directors
to terminate the Plan at any time pursuant to Article 9 herein,
until all Shares subject to it shall have been purchased or
acquired according to the Plan's provisions. However, in no event
may an Award be granted under the Plan on or after the tenth
anniversary of the Plan's Effective Date.
ARTICLE 2. Definitions and Construction
2.1 Definitions. Whenever used in the Plan, the following terms
shall have the meanings set forth below and, when the meaning is
intended, the initial letter of the word is capitalized:
(a) "Affiliates" means any corporation (other than a
Subsidiary), partnership, joint venture, or any other entity in
which the Company owns, directly or indirectly, at least a ten
percent (10%) Beneficial Ownership interest.
(b) "Award" means, individually or collectively, a grant
under this Plan of Nonqualified Stock Options, Incentive Stock
Options or Stock Bonuses (including Phantom Stock Bonuses and
Restricted Stock).
(c) "Beneficial Owner" shall have the meaning ascribed to
such term in Rule 13d-3 of the General Rules and Regulations
under the Exchange Act.
(d) "Board" or "Board of Directors" means the Board of
Directors of Owens Corning.
(e) "Cause" means a felony conviction of a Participant or the
failure of a Participant to contest prosecution for a felony,
or a Participant's willful misconduct or dishonesty, any of
which is directly and materially harmful to the business or
reputation of the Company, including any Subsidiary, Parent, or
Affiliate.
(f) "Change of Control" of the Company shall be deemed to
have occurred as of the first day any one or more of the
following conditions shall have been satisfied:
(i) Any Person (other than the Company, any Company
employee benefit plan (including its trustee), any Person
acting on behalf of the Company in a distribution of stock
to the public, or any entity owned directly or indirectly by
the stockholders (immediately prior to such transaction) of
the Company in substantially the same proportions as their
ownership of the Company) is or becomes the Beneficial
Owner, directly or indirectly, of securities of the Company
representing fifteen percent (15%) or more of the combined
voting power of the then outstanding securities of the
Company entitled to vote generally in the election of
Directors; or
(ii) The occurrence of any transaction or event relating
to the Company that is required to be reported in response
to the requirements of Item 5(f) of Schedule 13E-3 of
Regulation 13A of the Exchange Act; or
(iii) When, during any period of two (2) consecutive years
during the existence of the Plan, the individuals who, at
the beginning of such period, constitute the Board of
Directors of the Company, cease for any reason other than
death to constitute at least a majority thereof, unless each
Director who was not a Director at the beginning of such
period was elected by, or on the recommendation of, at least
two-thirds of the Directors at the beginning of such period,
provided that any Director elected by or on the
recommendation of at least two-thirds of the Directors at
the beginning of any such two (2) year period shall be
treated as if he or she had been a Director at the beginning
of such period; or
(iv) The occurrence of a transaction requiring stockholder
approval for the acquisition of the Company by an entity
other than the Company or a Subsidiary through purchase of
assets, or by merger, or otherwise.
(g) "Change-of-Control Price" means the highest price per
Share of Company Common Stock paid in any transaction reported
on the New York Stock Exchange Composite Tape, or paid in any
transaction related to a Potential or actual Change of Control
of the Company at any time during the preceding sixty (60)
calendar day period, as determined by the Committee.
(h) "Code" means the Internal Revenue Code of 1986, as
amended from time to time.
(i) "Committee" means the committee of two (2) or more
Directors appointed by the Board to administer the Plan, as
further provided in Article 3 herein. When used herein,
"Committee" shall also include any person or persons to whom
the Committee's authority has been lawfully delegated pursuant
to Article 3.
(j) "Company" means Owens Corning, a Delaware corporation,
and any successor thereto as provided in Article 14 herein.
(k) "Director" means any individual who is a member of the
Board of Directors of the Company.
(l) "Disability" or "Disabled" means disability as determined
under the long-term disability program of the Company, a
Subsidiary or Affiliate applicable to the Employee.
(m) ''Employee'' means any employee of the Company or a
Subsidiary, including part time employees and employees who are
represented by a collective bargaining agent with respect to
such employment.
(n) ''Exchange Act'' means the Securities Exchange Act of
1934, as amended from time to time, or any successor Act
thereto.
(o) ''Fair Market Value'' means, as of any given date, (i)
with respect to Incentive Stock Options, the closing sale price
of the Stock on such date on the New York Stock Exchange
Composite Tape; and (ii) with respect to Nonqualified Stock
Options and any other Awards under the Plan not related to
Incentive Stock Options, the closing sale price of the Stock on
such date on the New York Stock Exchange Composite Tape, or, if
(and only if) the Committee in its discretion so specifies, the
average on such date of the closing price of the Stock on each
day on which the Stock is traded over a period of up to 20
trading days immediately prior to such date. However, if the
foregoing method of determining Fair Market Value is not
consistent with any then applicable regulations of the U.S.
Secretary of the Treasury, then Fair Market Value shall be
determined in accordance with those regulations.
(p) ''Incentive Stock Options'' or ''ISO'' means an option to
purchase Shares, granted under Article 6 herein, which the
Committee designates as an Incentive Stock Option and is
intended by the Committee to qualify for the tax treatment
applicable to incentive stock options under Section 422 of the
Code.
(q) ''Insider'' shall mean an Employee whose transactions in
equity securities of the Company are, at the time an Award is
made under this Plan, subject to Section 16 of the Exchange
Act.
(r) ''Nonqualified Stock Option'' or ''NQSO'' means an option
to purchase Shares, granted under Article 6 herein, which is
not intended by the Committee to qualify for the tax treatment
applicable to incentive stock options under Section 422 of the
Code.
(s) ''Option'' or ''Stock Option'' means an Incentive Stock
Option or a Nonqualified Stock Option granted under Article 6
herein.
(t) ''Option Price'' means the price at which a Share may be
purchased by a Participant pursuant to an Option, as determined
by the Committee, and as further described in Section 6.3
herein.
(u) ''Parent'' shall have the meaning ascribed to such term
in Rule 12b-2 of the General Rules and Regulations under the
Exchange Act.
(v) ''Participant'' means a current or former eligible
Employee who has outstanding an Award granted under the Plan.
(w) ''Period of Restriction'' means the period during which
the transfer of Shares of Restricted Stock is limited in some
way (based on the passage of time, the achievement of
performance goals, or upon the occurrence of other events as
determined by the Committee, at its discretion), and the Shares
are subject to a substantial risk of forfeiture, as provided in
Article 7 herein.
(x) ''Person'' shall have the meaning ascribed to such term
in Section 3(a)(9) of the Exchange Act and used in Sections
13(d)(3) and 14(d)(2) thereof, including a ''group'' as defined
in Section 13(d).
(y) ''Phantom Stock Bonus Award'' means an amount of cash
that is determined by reference to the Fair Market Value of a
designated number of Shares, which is paid to an Employee or
which the Committee agrees to pay to an Employee in the future
in lieu of, or as a supplement to, any other compensation that
may have been earned by services rendered prior to the payment
date, subject to such terms and conditions (if any) as the
Committee may impose. Phantom Stock Bonus Awards are a specific
type of Stock Bonus Award.
(z) ''Potential Change of Control'' of the Company shall mean
the occurrence of one or more of the following:
(i) The entering into an agreement by the Company, the
consummation of which would result in a Change of Control;
or
(ii) The acquisition of Beneficial Ownership, directly or
indirectly, by any Person (other than the Company, any
Company employee benefit plan (including its trustee), any
Person acting on behalf of the Company in a distribution of
stock to the public, or any entity owned directly or
indirectly by the stockholders (immediately prior to the
acquisition) of the Company in substantially the same
proportions as their ownership of the Company) of securities
of the Company representing five percent (5%) or more of the
combined voting power of the Company's then outstanding
securities, and the adoption by the Board of Directors of a
resolution to the effect that a Potential Change of Control
of the Company has occurred for purposes of this Plan.
(aa) ''Restricted Stock'' means an Award granted to a
Participant pursuant to Article 7 herein.
(bb) ''Retirement'' means termination of employment with the
Company, its Subsidiaries and Affiliates at or after attainment
of age 55 with a vested retirement benefit under a pension plan
of the Company, a Subsidiary or Affiliate.
(cc) ''Share(s)'' or ''Stock'' means the Shares of common
stock, $0.10 par value, of Owens Corning.
(dd) ''Stock Bonus Award'' means Shares, or an amount of cash
that is determined by reference to the Fair Market Value of
Shares, which is distributed or paid to an Employee or which
the Committee agrees to distribute or pay in the future in lieu
of, or as a supplement to, any other compensation that may have
been earned by services rendered prior to the distribution or
payment date, subject to such terms and conditions (if any) as
the Committee may impose. The amount of any Stock Bonus Award
payable in Shares may but need not be determined by reference
to the Fair Market Value of Stock. Phantom Stock Bonus Awards
and Restricted Stock Awards are specific types of Stock Bonus
Awards.
(ee) ''Subsidiary'' means any corporation in which the
Company owns, directly or indirectly, at least fifty percent
(50%) of the total combined voting power of all classes of
stock, or any other entity (including, but not limited to,
partnerships and joint ventures) in which the Company owns at
least fifty percent (50%) of the combined equity thereof.
(ff) ''Year'' or ''Plan Year'' means each consecutive twelve
(12) month period beginning January 1 and ending December 31.
2.2 Gender and Number. Except where otherwise indicated by the
context, any masculine term used herein also shall include the
feminine, the plural shall include the singular, and the singular
shall include the plural.
2.3 Severability. In the event any provision of the Plan shall
be held illegal or invalid for any reason, the illegality or
invalidity shall not affect the remaining parts of the Plan, and
the Plan shall be construed and enforced as if the illegal or
invalid provision had not been included.
ARTICLE 3. Administration
3.1 The Committee. The Plan shall be administered by the
Compensation Committee of the Board, its lawful designee, or by
any other Committee appointed by the Board consisting of not less
than two (2) Directors who are not Employees. Unless the Board
determines otherwise, the Committee shall be comprised exclusively
of Directors who are not Employees and who (i) qualify to
administer the Plan under Rule 16b-3 under the Exchange Act as
such Rule may be in effect from time to time (''SEC Rule 16b-3''),
and (ii) are ''outside directors'' within the meaning of Section
162(m)(4)(C) of the Code. The members of the Committee shall be
appointed from time to time by, and shall serve at the discretion
of, the Board of Directors.
3.2 Authority of the Committee. The Committee, including its
designee, shall have full power, subject to the provisions herein,
to select Employees to whom Awards are granted; to determine the
size, types, and frequency of Awards granted hereunder; to
determine the terms and conditions of such Awards in a manner
consistent with the Plan; to establish and administer any
performance goals applicable to awards hereunder and to certify
that any such goals are attained; to construe and interpret the
Plan and any agreement or instrument entered into under the Plan;
to establish, amend, or waive rules and regulations for the Plan's
administration; and to amend the terms and conditions of any
outstanding Award to the extent such terms and conditions are
within the discretion of the Committee as provided in the Plan.
Further, the Committee shall make all other determinations which
may be necessary or advisable for the administration of the Plan.
To the extent permitted by law, and to the extent allowable by SEC
Rule 16b-3, the Committee may delegate its authorities as
identified hereunder.
3.3 Rule 16b-3 Requirements; Code Section 162(m). Any provision
of the Plan to the contrary notwithstanding: (i) the Committee may
impose such conditions on any Award as it may determine, on the
advice of counsel, are necessary or desirable to satisfy any
exemption from Section 16 of the Exchange Act for which the
Company intends transactions by Insiders to qualify, including
without limitation SEC Rule 16b-3; (ii) transactions by or with
respect to Insiders shall comply with any applicable conditions of
SEC Rule 16b-3 unless the Committee determines otherwise; (iii)
transactions with respect to persons whose remuneration would not
be deductible by the Company but for compliance with the
provisions of Section 162(m)(4)(C) of the Code shall conform to
the requirements of Section 162(m)(4)(C) of the Code unless the
Committee determines otherwise; (iv) the Plan is intended to give
the Committee the authority to grant awards that qualify as
performance-based compensation under Code Section 162(m)(4)(C) as
well as awards that do not so qualify; and (v) any provision of
the Plan that would prevent the Committee from exercising the
authority referred to in clause (iv) above or that would prevent
an award that the Committee intends to qualify as performance-
based compensation under Code Section 162(m)(4)(C) from so
qualifying or that would prevent any transaction by or with
respect to an Insider from complying with any applicable condition
of SEC Rule 16b-3 with which the Committee intends such
transaction to comply, or that would prevent any transaction by or
with respect to an Insider from qualifying for any exemption from
Section 16 of the Exchange Act for which the Company intends such
transaction to qualify (including SEC Rule 16b-3), shall be
administered, interpreted and construed to carry out such
intention and any provision that cannot be so administered,
interpreted and construed shall to that extent be disregarded.
3.4 Decisions Binding. All determinations and decisions made by
the Committee pursuant to the provisions of the Plan and all
related orders or resolutions of the Board of Directors shall be
final, conclusive, and binding on all persons, including the
Company, its stockholders, Employees, Participants, and their
estates and beneficiaries.
ARTICLE 4. Shares Subject to the Plan
4.1 Number of Shares. Subject to adjustment as provided in
Section 4.2 herein, the total number of Shares available for grant
under the Plan in each calendar year, during any part of which the
Plan is effective, shall be two percent (2%) of the total
outstanding Shares as of the first day of such calendar year;
provided, however, that Shares not granted in any calendar year
may be carried forward and granted in any of the three immediately
subsequent calendar years (in addition to the new Shares made
available in those years). The maximum number of Shares with
respect to which Options may be granted to any Employee in any
calendar year shall be twenty-five percent (25%) of the total
number of Shares available for grant under the Plan in such
calendar year.
No more than 500,000 Shares may be issued or transferred
pursuant to Incentive Stock Options granted under this Plan. No
more than one-half percent (.5%) of the total outstanding Shares
as of the first day of any calendar year may be granted in that
year in the form of Stock Bonuses (including Phantom Stock Bonuses
and Restricted Stock). However, unused Shares carried forward from
previous years shall retain their character such that this one-
half percent (.5%) limitation shall increase in direct
relationship to those unused Shares reserved for Stock Bonuses in
the prior three years.
The Company may increase the Shares available for Awards in any
calendar year through an advance of up to twenty-five percent
(25%) of the subsequent year's allocation (determined by using
twenty-five percent (25%) of the current year's allocation), with
such Shares retaining their character as to Stock Bonus grant
availability. Any Shares granted hereunder may consist, in whole,
or in part, of authorized and unissued Shares or Treasury Shares
or Shares purchased in the open market or in private transactions
for purposes of the Plan.
4.2 Adjustments in Authorized Shares. In the event of any
merger, reorganization, consolidation, recapitalization,
separation, liquidation, stock dividend, stock split, Share
combination, or other change in the corporate structure of the
Company affecting the Shares, a substitution or adjustment shall
be made in the number and class of Shares which may be delivered
under the Plan, and in the number and class of and/or price of
Shares subject to outstanding Options and Stock Bonus awards
(including any Restricted Stock granted hereunder), as may be
determined to be appropriate and equitable by the Committee, in
its sole discretion, to prevent dilution or enlargement of rights;
and further provided that the number of Shares subject to any
Award shall always be a whole number.
4.3 Charging of Shares. If any Shares subject to an Award or, in
the case of a Phantom Stock Bonus Award, the cash value of any
Shares on which such Award is based, shall not be issued,
transferred or paid to an Employee and shall cease to be issuable,
transferable or payable to an Employee because of the termination,
expiration or cancellation, in whole or in part, of such Award or
for any other reason, or if any such Shares shall, after issuance
or transfer, be reacquired by the Company because of an Employee's
failure to comply with or satisfy the terms and conditions of an
Award, the Shares not so issuable or transferable or, in the case
of a Phantom Stock Bonus Award, the Shares the cash value of which
has ceased to be payable, or the Shares so reacquired by the
Company, as the case may be, shall no longer be charged against
the limitations provided for in section 4.1 above, may again be
made subject to Awards, and shall be added to the number of Shares
available for grant under the Plan in the calendar year in which
the Shares cease to be issuable or transferable, the cash value
ceases to be payable or the Shares are reacquired (as the case may
be).
ARTICLE 5. Eligibility and Participation
5.1 Eligibility. All Employees shall be eligible to be selected
to participate in this Plan, including Employees who are Directors
but excluding Directors who are not Employees.
5.2 Actual Participation. Subject to the provisions of the Plan,
the Committee may, from time to time, select from all eligible
Employees, those to whom Awards shall be granted and shall
determine the nature and amount of each Award. Awards may be made
on a stand-alone basis or in conjunction with other Awards
hereunder. Except as provided otherwise in Section 6.1 below, the
grant of any award may be effective on the date on which the
Committee acts to grant the award or on any earlier or subsequent
date specified by the Committee, and the effective date specified
by the Committee shall be considered the date of grant of the
award for all purposes of this Plan.
ARTICLE 6. Stock Options
6.1 Grant of Options. Subject to the terms and provisions of the
Plan, the Committee may grant Options under this Plan to eligible
Employees at any time and from time to time, whether or not they
are eligible to receive similar or dissimilar incentive
compensation under any other plan or arrangement of the Company.
Options may be granted in the form of ISOs, NQSOs or a combination
thereof. Nothing in this Article 6 shall be deemed to prevent the
grant of NQSOs in excess of the maximum established by Section 422
of the Code. The grant of any option may be effective on the date
on which the Committee acts to grant the option or on any
subsequent date specified by the Committee, and the effective date
specified by the Committee shall be considered the date of grant
of the option for all purposes of this Plan.
6.2 Options to be in Writing. Each Option grant shall be
evidenced in a writing signed by a representative of the Company
duly authorized to do so, that shall specify or incorporate by
reference the Option Price, the duration of the Option, the number
of Shares to which the Option pertains, and such other provisions
as are provided hereunder and any other terms and conditions that
may be imposed by the Committee. The Option instrument also shall
specify whether the Option is an Incentive Stock Option or a
Nonqualified Stock Option.
6.3 Option Price. In no case shall the Option Price of any
Option granted under this Plan be less than one hundred percent
(100%) of the Fair Market Value of a Share on the date the Option
is granted.
6.4 Duration of Options. Each Option shall expire at such time
as determined at the time of grant; provided, however, that no
Option shall be exercisable later than the tenth (10th)
anniversary date of its grant.
6.5 Exercise of Options. Options granted under the Plan shall be
exercisable at such times and be subject to such restrictions,
terms and conditions as the Committee shall in each instance
approve, which need not be the same for each grant or for each
Participant. However, except as provided in Article 8 herein, in
no event may any Option granted under this Plan become exercisable
prior to six (6) months following the date of its grant.
Options shall be exercised by the delivery of a written notice
of exercise to the Company, or by giving the Company notice of
such exercise by such other means as the Company may permit in
accordance with applicable law, setting forth the number of Shares
with respect to which the Option is to be exercised, accompanied
by full payment.
The Option Price upon exercise of any Option shall be payable to
the Company in full either: (a) in cash or its equivalent; or (b)
by tendering previously acquired Shares having a Fair Market Value
at the time of exercise equal to the total Option Price (provided
that the Shares which are tendered must have been held by the
Participant for at least six (6) months prior to their tender or
for such other period of time, if any, as the Committee may
direct); or (c) by a combination of (a) and (b).
The Option Price shall also be deemed fully paid if and when the
Company receives documentation that it determines satisfies the
cashless exercise provisions of the Federal Reserve Board's
Regulation T, or when the Option Price is paid by any other means
which the Committee determines to be consistent with the Plan's
purpose and applicable law.
As soon as practicable after receipt of notification of exercise
acceptable to the Company and full payment (including tax
withholding requirements, if any, as further provided in Article
12 herein), the Company shall deliver to the Participant, in the
Participant's name, in the name of the Participant and another
person as joint tenants with rights of survivorship, or in nominee
or street name on behalf of the Participant (as the Participant
may direct and the Committee may permit) Share certificates or
brokerage account credit (electronically, via DWAC
(Deposit/Withdrawal As Custodian) in an appropriate amount based
upon the number of Shares purchased under the Option(s).
6.6 Restrictions. At the time of grant, restrictions may be
imposed on any Shares acquired pursuant to the exercise of an
Option under the Plan, including, without limitation, restrictions
under applicable Federal securities laws, under the requirements
of any stock exchange or market upon which such Shares are then
listed and/or traded, and under any blue sky or state securities
laws applicable to such Shares.
6.7 Termination of Employment Due to Death, Disability, or
Retirement.
(a) Termination by Death. In the event the employment of a
participant with the Company and its Subsidiaries is terminated by
reason of death, any outstanding Options may thereafter be
immediately exercised, to the extent then exercisable (or on such
accelerated basis as the Committee shall determine at or after
grant), by the legal representative of the estate or by the
legatee of the optionee under the will of the optionee, for a
period of three years and six months (or such shorter period as
the Committee shall specify at or after grant) from the date of
such death or until the expiration of the stated term of such
Option, whichever period is shorter.
(b) Termination by Disability. If a Participant's employment
with the Company and its Subsidiaries terminates by reason of
Disability, any Stock Option held by such Participant may
thereafter be exercised, to the extent it was exercisable at the
time of termination due to Disability (or on such accelerated
basis as the Committee shall determine at or after grant), but may
not be exercised after (i) three years and six months (or such
shorter period as the Committee shall specify at or after grant)
from the date of such termination of employment, or (ii) the
expiration of the stated term of such Stock Option, whichever
period is shorter; provided, however, that, if the Participant
dies within such three-year-and-six-month period (or such shorter
period as the Committee shall specify at or after grant), any
unexercised Stock Option held by such Participant shall thereafter
be exercisable to the extent to which it was exercisable at the
time of death for a period of twelve months (or such shorter
period as the Committee shall specify at or after grant) from the
date of such death or for the stated term of such Stock Option,
whichever period is shorter. If an Incentive Stock Option is
exercised after the expiration of the exercise periods that apply
for purposes of Section 422 of the Code, such Stock Option shall
thereafter be treated as a Nonqualified Stock Option.
(c) Termination by Retirement. If a Participant's employment
with the Company and its Subsidiaries is terminated by reason of
Retirement, any Stock Option held by such Participant may
thereafter be exercised to the extent it was exercisable at the
time of such Retirement (or on such accelerated basis as the
Committee shall determine at or after grant), but may not be
exercised after five years (or such shorter period as the
Committee shall specify at or after grant) from the date of such
termination of employment or the expiration of the stated term of
such Stock Option, whichever period is shorter; provided, however,
that, if the Participant dies within such five year period (or
such shorter period as the Committee may specify at or after
grant), any unexercised Stock Option held by such Participant
shall thereafter be exercisable, to the extent to which it was
exercisable at the time of death, for the shorter of (i) and (ii)
where (i) is a period of twelve months (or such shorter period as
the Committee shall specify at or after grant) from the date of
such death or, if longer, the remainder of such five year (or
shorter) period from the date of such termination of employment,
and (ii) is the expiration of the stated term of the Stock Option.
In the event of termination of employment by reason of Retirement,
if an Incentive Stock Option is exercised after the expiration of
the exercise periods that apply for purposes of Section 422 of the
Code, such Stock Option shall thereafter be treated as a
Nonqualified Stock Option.
6.8 Termination of Employment for Other Reasons. Unless
otherwise determined by the Committee at or after grant, if a
Participant's employment with the Company and its Subsidiaries
terminates voluntarily (other than by reason of Retirement or
under circumstances constituting Cause), the Stock Option shall
thereupon terminate, except that such Stock Option may be
exercised to the extent it was exercisable at the time of
termination of employment for the lesser of one year (or such
shorter period as the Committee may specify at or after grant)
from the date of employment termination or the balance of such
Stock Option's term. If a Participant's employment with the
Company and its Subsidiaries is involuntarily terminated by the
Company without Cause, the Option shall thereupon terminate,
except that it may thereafter be exercised to the extent it was
exercisable at the time of termination of employment (or on such
accelerated basis as the Committee shall determine at or after
grant) for the lesser of five years (or such shorter period as the
Committee may specify at or after grant) from the date of
employment termination or the balance of such Stock Option's term.
If the employment of a Participant shall terminate for Cause,
all outstanding Options held by the Participant immediately shall
be forfeited to the Company and no additional exercise period
shall be allowed, regardless of the vested status of the Options.
6.9 Nontransferability of Options. No Option granted under the
Plan may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated, other than by will or by the laws of
descent and distribution. Further, all Options granted to a
Participant under the Plan shall be exercisable during his or her
lifetime only by such Participant. Notwithstanding the foregoing
and any other provision of the Plan to the contrary, if the
Committee so permits, Options may be transferred (i) by a
Participant who is a member of a group of Participants
specifically designated by the Committee as eligible to transfer
Options pursuant to such uniform guidelines as the Committee may
establish for this purpose from time to time, or (ii) following
the death of a Participant, to a beneficiary designated by the
Participant in accordance with Article 10 below.
ARTICLE 7. Restricted Stock
7.1 Grant of Restricted Stock. Subject to the terms and
provisions of the Plan, Restricted Stock may be granted to
eligible Employees at any time and from time to time, whether or
not they are eligible to receive similar or dissimilar incentive
compensation under any other plan or arrangement of the Company.
The purchase price for Shares of Restricted Stock shall be equal
to their par value per Share.
7.2 Restricted Stock Agreement. Each Restricted Stock grant
shall be evidenced by a Restricted Stock Agreement that shall
specify the Period of Restriction, or Periods, the number of
Restricted Stock Shares granted, and such other provisions as
provided hereunder or as the Committee may impose.
7.3 Nontransferability of Restricted Stock. Except as provided
in this Article 7, the Shares of Restricted Stock granted
hereunder may not be sold, transferred, pledged, assigned, or
otherwise alienated or hypothecated until the end of the
applicable Period of Restriction as specified in the Restricted
Stock Agreement and the satisfaction of any conditions determined
at the time of grant and specified in the Restricted Stock
Agreement. However, except as provided in Article 8 herein, in no
event may any Restricted Stock granted under the Plan become
vested in a Participant prior to six (6) months following the date
of its grant. All rights with respect to the Restricted Stock
granted to a Participant under the Plan shall be available during
his or her lifetime only to such Participant.
7.4 Other Restrictions. The Committee shall impose such other
restrictions on any Shares of Restricted Stock granted pursuant to
the Plan as it may deem advisable including, without limitation, a
required purchase price imposed upon Participants, restrictions
based upon the achievement of specific performance goals (Company-
wide, divisional, and/or individual), and/or restrictions under
applicable Federal or state securities laws; and may legend the
certificates representing Restricted Stock to give appropriate
notice of such restrictions. Further, the Committee at its
discretion, may require that the Shares evidencing such Restricted
Stock grants be held in custody by the Company until any or all
restrictions thereon shall have lapsed.
7.5 Certificate Legend. In addition to any legends placed on
certificates pursuant to Section 7.4 herein, each certificate
representing Shares of Restricted Stock granted pursuant to the
Plan shall bear the following legend:
"The sale or other transfer of the Shares of Stock
represented by this certificate, whether voluntary,
involuntary, or by operation of law, is subject to certain
restrictions on transfer as set forth in the Owens Corning
Stock Performance Incentive Plan, and in the related Restricted
Stock Agreement. A copy of the Plan and such Restricted Stock
Agreement may be obtained from the Secretary of Owens Corning."
7.6 Removal of Restrictions. Except as otherwise provided in
this Article 7, Shares of Restricted Stock covered by each
Restricted Stock grant made under the Plan shall become freely
transferable by the Participant after the last day of the Period
of Restriction, provided the applicable conditions to vesting of
such Shares have been fulfilled. Once the Shares are released from
the restrictions, the Participant shall be entitled to have the
legend required by Section 7.5 removed from his or her Share
certificate.
7.7 Voting Rights. During the Period of Restriction and prior to
any forfeiture of the Shares, Participants holding Shares of
Restricted Stock granted hereunder may exercise full voting rights
with respect to those Shares.
7.8 Dividends and Other Distributions. During the Period of
Restriction and prior to any forfeiture of the Shares,
Participants holding Shares of Restricted Stock granted hereunder
shall be entitled to receive all dividends and other distributions
paid with respect to those Shares while they are so held. If any
such dividends or distributions are paid in Shares, the Shares
shall be subject to the same restrictions on transferability and
forfeitability as the Shares of Restricted Stock with respect to
which they were paid.
7.9 Termination of Employment. The Committee may but need not
provide at or after the grant of Restricted Stock for the
restrictions on all or any designated portion of the Shares of
Restricted Stock to lapse in the event of death, Disability,
Retirement or other designated termination of employment.
ARTICLE 7A. Stock Bonuses
7A.1 Except as otherwise provided in section 15.3, Stock Bonus
Awards shall be subject to the following provisions:
(a) An eligible Employee may be granted a Stock Bonus Award
whether or not he is eligible to receive similar or dissimilar
incentive compensation under any other plan or arrangement of
the Company.
(b) Shares subject to a Stock Bonus Award (other than a
Phantom Stock Bonus Award) may be issued or transferred to an
Employee, and the cash value of the Shares on which a Phantom
Stock Bonus Award is based may be paid to an Employee, at the
time such Award is granted, or at any time subsequent thereto,
or in installments from time to time, and subject to such terms
and conditions, as the Committee shall determine. In the event
that any such issuance, transfer or payment shall not be made
to the Employee at the time such Award is granted, the
Committee may but need not provide for payment to such
Employee, either in cash or Shares, from time to time or at the
time or times such Shares shall be issued or transferred or
cash shall be paid to such Employee, of amounts not exceeding
the dividends which would have been payable to such Employee in
respect of such Shares (as adjusted under section 4.2) if such
Shares had been issued or transferred to such Employee at the
time such Award was granted.
(c) Any Stock Bonus Award may, in the discretion of the
Committee, be settled in cash, on each date on which Shares
would otherwise have been delivered or become unrestricted, in
an amount equal to the Fair Market Value on such date of the
Shares which would otherwise have been delivered or become
unrestricted. A Phantom Stock Bonus Award shall be payable only
in the form of cash. Subject to Section 4.3 above, the Shares
subject to a Stock Bonus Award (including a Phantom Stock Bonus
Award) shall be deducted from the number of Shares available
for grant under the Plan, whether the Award is settled in the
form of cash or Shares.
(d) Stock Bonus Awards shall be subject to such terms and
conditions, including, without limitation, restrictions on the
sale or other disposition of any Shares to be issued or
transferred pursuant to such Award, and conditions calling for
forfeiture of the Award or the Shares issued or transferred or
cash paid pursuant thereto in designated circumstances, as the
Committee shall determine; provided, however, that upon the
issuance or transfer of Shares to an Employee pursuant to any
such Award, the recipient shall, with respect to such Shares,
be and become a shareholder of the Company fully entitled to
receive dividends, to vote and to exercise all other rights of
a stockholder except to the extent otherwise provided in the
Award. All or any portion of a Stock Bonus Award may but need
not be made in the form of a Restricted Stock Award or a
Phantom Stock Bonus Award.
(e) Each Stock Bonus Award shall be evidenced in a writing,
signed by a representative of the Company duly authorized to do
so, which shall be consistent with and subject to this Plan.
ARTICLE 8. Change of Control
8.1 Acceleration and Cashout. Subject to the provisions of
Section 8.2 herein, upon the occurrence of a Change of Control of
the Company, or, if and to the extent so determined by the
Committee in writing at or after grant (subject to any right of
approval expressly reserved by the Committee at the time of such
determination), in the event of a Potential Change of Control of
the Company, unless specifically prohibited by the terms of
Article 15 herein:
(a) Any Stock Options awarded under the Plan immediately
shall become fully vested and exercisable;
(b) Any restrictions and other conditions pertaining to
outstanding Stock Bonuses (including Phantom Stock Bonuses and
Restricted Stock), including but not limited to vesting
requirements, immediately shall lapse; and
(c) The value of all outstanding Stock Options and Stock
Bonuses (including Phantom Stock Bonuses and Restricted Stock)
shall, to the extent determined by the Committee at or after
grant, be cashed out by the Company on the basis of the Change-
of-Control Price (or, in the case of Incentive Stock Options,
Fair Market Value) as of the date the Change of Control occurs,
or Potential Change of Control is determined to have occurred,
or such other date as the Committee may determine prior to the
occurrence of the Change of Control or Potential Change of
Control.
Notwithstanding the foregoing provisions of this Section 8.1, the
Committee may determine, in its sole discretion, that no Change of
Control or Potential Change of Control shall be deemed to have
occurred with respect to a Participant (i) by reason of any
actions or events (''Interested Actions'') in which the
Participant acts in a capacity other than as a director, officer
or employee of the Company (or a Subsidiary or Affiliate, where
applicable), or (ii) with respect to any such action or event
occurring within 90 days following the public announcement of any
Interested Actions, regardless of whether the Participant is
interested in such action or event.
8.2 Award Replacement. Notwithstanding Section 8.1 herein, no
acceleration of vesting and exercisability, nor lapse of
restrictions and other conditions, nor cashout shall occur
(pursuant to Sections 8.1(a), (b), and (c) herein) for outstanding
Awards granted hereunder if the Committee reasonably determines in
good faith, prior to the Change of Control or Potential Change of
Control, that such Awards shall be honored or assumed, or new
rights substituted therefor (such honored, assumed, or substituted
award hereinafter called an ''Alternative Award'') by a
Participant's employer (or the parent or a subsidiary of such
employer) simultaneous with or immediately following the Change of
Control or Potential Change of Control, provided, however, that
any such Alternative Award must:
(a) In the event of Stock Options and Stock Bonuses:
(i) Be based on stock which is traded on an established
securities market, or which will be so traded within thirty
(30) days of the Change of Control or Potential Change of
Control; or
(ii) Have a value based directly upon an objective
standard of valuation (including, but not limited to, a
publicly reported stock index) acceptable to the Committee
under the circumstances and provide each Participant,
subject to requirements as to vesting or lapse of
restrictions, with an opportunity to put the Shares or other
securities covered by the Award to his or her employer (or
the parent, general partner, or a subsidiary of such
employer) for purchase with payment to be made in cash
within ten (10) business days of receipt of such employee's
put;
(b) For all Awards:
(i) Provide such Participant (or each Participant in a
class of Participants) with rights and entitlements
substantially equivalent to or better than the rights,
terms, and conditions applicable under such Awards,
including, but not limited to, an identical or better
vesting schedule and identical or better timing and methods
of payment;
(ii) Have substantially equivalent economic value to such
Awards (determined at the time of the Change of Control or
Potential Change of Control);
(iii) Have terms and conditions which provide that in the
event the Participant's employment is involuntarily
terminated without Cause or constructively terminated:
(A) Any conditions on a Participant's rights under, or
any restrictions on transfer or exercisability applicable
to, each such Alternative Award shall be waived or shall
lapse, as the case may be; and
(B) Each Participant shall have the right to surrender
such Alternative Awards within thirty (30) days following
such termination in exchange for a payment in cash equal
to the excess of the Fair Market Value of the stock
subject to the Alternative Award over the price, if any,
that a Participant would be required to pay to exercise
such Alternative Award.
For this purpose, a constructive termination shall mean a
termination by a Participant following a material reduction in the
Participant's compensation, a reduction in the Participant's
responsibilities, or the relocation of the Participant's principal
place of employment to another location, in each case without the
Participant's advance written consent.
8.3 Excise Tax Reimbursement. In the event that any
accelerations, lapse of restrictions, cashouts, Award
replacements, and/or any other event under this Plan will cause a
Participant to be subject to the tax (the ''Excise Tax'') imposed
by Section 4999 of the Code (or any similar tax that may hereafter
be imposed), the Company shall pay to the Participant at the time
specified below an additional amount (the ''Gross-up Payment'')
such that the net amount retained by the Participant, after
deduction of any Excise Tax on the Total Payments (as hereinafter
defined) and any Federal, state, and local income tax and Excise
Tax upon the Gross-up Payment provided for by this Section 8.3,
but before deduction for any Federal, state, or local income tax
on the Total Payments, shall be equal to the Total Payments.
For purposes of determining whether any Participant will be
subject to the Excise Tax and the amount of such Excise Tax:
(a) Any other payments or benefits received or to be received
by a Participant in connection with a Change of Control of the
Company or a Participant's termination of employment (whether
pursuant to the terms of this Plan or any other plan,
arrangement, or agreement with the Company, any Person whose
actions result in a Change of Control of the Company or any
Person affiliated with the Company or such Person) (which
together with the benefits and/or payments provided hereunder,
shall constitute the ''Total Payments'') shall be treated as
''parachute payments'' within the meaning of Section 280G(b)(2)
of the Code, and all ''excess parachute payments'' within the
meaning of Section 280G(b)(1) of the Code shall be treated as
subject to the Excise Tax unless, in the opinion of tax counsel
selected by the Committee, such other payments or benefits (in
whole or in part) do not constitute parachute payments, or such
excess parachute payments (in whole or in part) represent
reasonable compensation for services actually rendered within
the meaning of Section 280G(b)(4) of the Code in excess of the
base amount within the meaning of Section 280G(b)(3) of the
Code or are otherwise not subject to the Excise Tax;
(b) The amount of the total Payments which shall be treated
as subject to the Excise Tax shall be equal to the lesser of:
(A) the total amount of the Total Payments; or (B) the amount
of excess parachute payments within the meaning of Section
280G(b)(1) of the Code (after applying clause (a) above); and
(c) The value of any noncash benefits or any deferred payment
or benefit shall be determined by the Company's independent
auditors in accordance with the principles of Section
280G(d)(3) of the Code.
For purposes of determining the amount of the Gross-Up Payment, a
Participant shall be deemed to pay Federal income taxes at the
highest marginal rate of Federal income taxation for the calendar
year in which the Gross-Up Payment is to be made and the
applicable state and local income taxes at the highest marginal
rate of taxation for the calendar year in which the Gross-Up
Payment is to be made, net of the maximum reduction in Federal
income taxes which could be obtained from deduction of such state
and local taxes. In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder
at the time the Gross-Up Payment is made, a Participant shall
repay to the Company at the time that the amount of such reduction
in Excise Tax is finally determined the portion of the Gross-Up
Payment attributable to such reduction (plus the portion of the
Gross-Up Payment attributable to the Excise Tax and Federal, state
and local income tax imposed on the portion of the Gross-Up
Payment being repaid by a Participant if such repayment results in
a reduction in Excise Tax and/or a Federal, state, and local
income tax deduction), plus interest on the amount of such
repayment at the rate provided in Section 1274(b)(2)(B) of the
Code. In the event that the Excise Tax is determined to exceed the
amount taken into account hereunder at the time the Gross-Up
Payment is made (including by reason of any payment the existence
or amount of which cannot be determined at the time of the Gross-
Up Payment), the Company shall make an additional Gross-Up Payment
in respect of such excess (plus any interest payable with respect
to such excess) at the time that the amount of such excess is
finally determined.
The Gross-Up Payment or portion thereof provided for in this
Section 8.3 shall be paid no later than the thirtieth (30th)
calendar day following payment of any amounts under this section,
provided, however, that if the amount of such Gross-Up Payment or
portion thereof cannot be finally determined on or before such
day, the Company shall pay to a Participant on such day an
estimate, as determined in good faith by the Company, of the
minimum amount of such payments and shall pay the remainder of
such payments (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code) as soon as the amount thereof
can be determined, but in no event later than the forty-fifth
(45th) calendar day after payment of any amounts under this
Section 8.3. In the event that the amount of the estimated
payments exceeds the amount subsequently determined to have been
due, such excess shall constitute a loan by the Company to each
Participant, payable on the fifth (5th) calendar day after demand
by the Company (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code).
ARTICLE 9. Amendment, Modification and Termination
9.1 Amendment and Termination. The Board, the Committee, or its
lawful designee may, at any time and from time to time, amend or
modify the Plan in any respect without stockholder approval,
unless stockholder approval of the amendment or modification in
question is required under Delaware law, the Code (including
without limitation Code section 162(m)(4) and Code Section 422 and
Treasury regulations issued or proposed thereunder), any
applicable exemption from Section 16 of the Exchange Act
(including without limitation SEC Rule 16b-3) for which the
Company intends transactions by Insiders to qualify, any national
securities exchange or system on which the Stock is then listed or
reported, by any regulatory body having jurisdiction with respect
to the Plan, or under any other applicable laws, rules or
regulations. The Board may also terminate the Plan at any time.
The Committee may amend the terms of any Award granted under the
Plan, prospectively or retroactively, but no such amendment shall
impair the rights of any Participant without such Participant's
consent.
9.2 Awards Previously Granted. No termination, amendment or
modification of the Plan shall in any manner adversely affect any
Award previously granted under the Plan, without the written
consent of the Participant holding such Award
ARTICLE 10. Beneficiary Designation
The Committee may (but need not) permit a Participant, from time
to time and subject to such terms and conditions as it may impose,
to name a beneficiary or beneficiaries (who may be named
contingently or successively) to whom any benefit under the Plan
is to be paid in case of his or her death before he or she
receives any or all of such benefit. Each such designation shall
revoke all prior designations by the same Participant, shall be in
a form prescribed by the Company, and will be effective only when
filed by the Participant in writing with the Human Resource
Department of the Company during the Participant's lifetime. In
the absence of any such designation, benefits remaining unpaid at
the Participant's death shall be paid to the Participant's estate.
ARTICLE 11. Rights of Employees; Other Plans and Arrangements
11.1 Employment. Nothing in the Plan shall interfere with or
limit in any way the right of the Company to terminate any
Participant's employment at any time, nor confer upon any
Participant any right to continue in the employ of the Company.
For purposes of the Plan, transfer of employment of a
Participant between the Company and any one of its Subsidiaries or
Affiliates (or between Subsidiaries and Affiliates) shall not be
deemed a termination of employment.
11.2 Participation. No Employee shall have the right to be
selected to receive an Award under this Plan, or, having been so
selected, to be selected to receive a future Award.
11.3 Transferability Restriction. Any derivative security issued
under this Plan (within the meaning of SEC Rule 16b-3(a)(2)) is
not transferable by the participant other than by will or the laws
of descent and distribution. Notwithstanding the foregoing and any
other provision of the Plan to the contrary, if the Committee so
permits, an award under this Plan may be transferred (i) by a
Participant who is a member of a group of Participants
specifically designated by the Committee as eligible to transfer
Options pursuant to such uniform guidelines as the Committee may
establish for this purpose from time to time, or (ii) following
the death of a Participant, to a beneficiary designated by the
Participant in accordance with Article 10 above.
11.4 Other Plans and Arrangements. Nothing in this Plan is
intended to be a substitute for, or shall preclude or limit the
establishment or continuation of, any other plan, practice or
arrangement for the payment of compensation or fringe benefits to
directors, officers, or employees generally, or to any class or
group of such persons, which the Company or any Subsidiary now has
or may hereafter lawfully put into effect, including, without
limitation, any incentive compensation, retirement, pension, group
insurance, restricted stock, stock purchase, stock bonus, stock
incentive or stock option plan.
ARTICLE 12. Withholding
12.1 Tax Withholding. A Participant shall remit to the Company
an amount sufficient to satisfy any taxes the Company determines
are required by law to be withheld with respect to any grant,
exercise, or payment made under or as a result of this Plan.
12.2 Share Withholding. With respect to withholding required
upon the exercise of Options, upon the lapse of restrictions on
Restricted Stock, or upon any other taxable event hereunder, the
Committee may permit or require Participants, subject to such
terms and conditions as it may impose, to satisfy the withholding
requirement, in whole or in part, by having the Company withhold
Shares having a Fair Market Value on the date the tax is to be
determined equal to the maximum marginal total tax which could be
imposed on the transaction or such greater or lesser amount as the
Committee may permit. If the Committee so provides, such Shares
withheld may be already owned Shares which the Participant tenders
in satisfaction of the withholding requirement or Shares issuable
by the Company in connection with the exercise of Options, the
lapse of restrictions on Restricted Stock or the other taxable
event hereunder, or Shares from any other source.
ARTICLE 13. Indemnification
No member of the Board or the Committee, nor any officer or
employee of the Company acting on behalf of the Board or the
Committee, shall be personally liable for any action,
determination, or interpretation taken or made in good faith with
respect to the Plan, and all members of the Board or the Committee
and each and any officer or employee of the Company acting on
their behalf shall, to the extent permitted by law, be fully
indemnified and protected by the Company in respect of any such
action, determination or interpretation.
ARTICLE 14. Successors
All obligations of the Company under the Plan, with respect to
Awards granted hereunder, shall be binding on any successor to the
Company, whether the existence of such successor is the result of
a direct or indirect purchase, merger, consolidation, or
otherwise, of all or substantially all of the business and/or
assets of the Company.
ARTICLE 15. Requirements of Law
15.1 Requirements of Law. The granting of Awards and the
issuance of Shares under the Plan shall be subject to all
applicable laws, rules, and regulations, and to such approvals by
any governmental agencies or national securities exchanges, as the
Company may determine apply.
15.2 Governing Law. To the extent not preempted by Federal law,
the Plan, and all agreements hereunder, shall be construed in
accordance with and governed by the laws of the State of Delaware,
without reference to the principles of conflicts of laws of that
State.
15.3 Non-U.S. Laws. In the event the laws of a foreign country,
in which the Company, a Subsidiary or Affiliate has Employees,
prescribe certain requirements for stock incentives to qualify for
advantageous treatment under the tax or other laws or regulations
of that country, the proper officers of the Company, may restate,
in whole or in part, this Plan and may include in such restatement
additional provisions for the purpose of qualifying the restated
plan and stock incentives granted thereunder under such laws and
regulations; provided, however, that (a) the terms and conditions
of any stock-based incentive granted under such restated plan may
not be more favorable to the recipient than would be permitted if
such stock-based incentive had been granted under the Plan as
herein set forth, (b) all Shares allocated to or utilized for the
purposes of such restated plan shall be subject to the limitations
of Article 4, and (c) the provisions of the restated plan may give
the Board less but not more discretion to amend or terminate such
restated plan than is provided with respect to this Plan by the
provisions of Article 9 hereof
Exhibit 10
KEY MANAGEMENT SEVERANCE AGREEMENT
This Severance Agreement (the "Agreement") is made as of
November 24, 1998 by and between OWENS CORNING, a Delaware
corporation (the "Company"), and Maura J. Abeln, an officer of the
Company ("Executive").
WHEREAS the Compensation Committee of the Board of Directors
of the Company (the "Committee") has approved a severance
agreement to provide Executive with certain protections and to
conform the terms of such agreement to the current policy of the
Company regarding an officer's entitlement to pay, benefits and
privileges on the termination of his employment;
NOW THEREFORE, the parties hereto agree as follows:
1. Termination Absent a Change of Control.
a) If, prior to a Change of Control (as defined in paragraph
7(c) below), (i) the Company terminates Executive's employment for
any reason other than Permanent Total Disability or Cause (as
defined in paragraphs 7(e) and 7(b)(1)&(2), respectively, below),
or (ii) Executive voluntarily terminates her employment under
circumstances involving a Constructive Termination (as defined in
paragraph 7(d), below), Executive will be entitled to the
following compensation, provided that Executive executes a Release
and Non-Competition Agreement satisfactory to the Company:
1) Base salary earned and as yet unpaid through the effective
date of termination; and
2) Two years' Base Pay (as defined in paragraph 7(a) below); and
3) Two times Executive's Separation Incentive Payment (as
defined in paragraph 7(f) below); and
4) Incentive Pay as yet unpaid from the prior fiscal year and
Incentive Pay for the fiscal year of termination, prorated for the
period of Executive's actual employment prior to termination; and
5) Executive's vested Cash Balance Pension Benefit plus an
amount equal to the present value of the additional vested pension
benefits payable to Executive in accordance with the Company's
Supplemental Executive Retirement Plan (the "SERP"), as approved
by the Compensation Committee of the Board of Directors on
December 11, 1997 and referenced in the November 24, 1998 letter
from Glen Hiner, a copy of which is appended to this Agreement.
Executive's regular, vested pension earnings will not be increased
by compensation paid under the SERP.
b) If, prior to a Change of Control, the Company terminates
Executive's employment for Cause (as defined in paragraph 7(b)(3),
below), Executive will only be entitled to base salary earned and
as yet unpaid through the effective date of termination and
Executive's vested Cash Balance and vested SERP Pension Benefits,
UNLESS, (i) the Company exercises its discretion to award
Executive (in addition to the aforementioned base salary and
vested pension amounts) some portion of the following
compensation, based on effort expended and results obtained to
date and (ii) Executive executes a Release and Non-Competition
Agreement satisfactory to the Company:
1) Up to but no more than Twelve months' Base Pay (as defined in
paragraph 7(a) below); and
2) Up to but no more than One times Executive's Separation
Incentive Payment (as defined in paragraph 7(f) below); and
3) Up to but no more than the amount of Incentive Pay as yet
unpaid from the prior fiscal year.
c) The compensation payable under paragraph 1(a) or 1(b), above,
shall be paid as soon as practicable after Executive signs,
returns and does not revoke the requisite Release and Non-
Competition Agreement.
d) In the event of a termination of Executive's employment under
the circumstances described in paragraph 1(a) above:
1) All stock options previously awarded to Executive shall, to
the extent not already vested, immediately vest, and shall be
exercisable (subject to applicable blackout restrictions) for up
to six months following the date of termination or the original
expiration date, whichever is sooner.
2) All shares of restricted stock previously awarded to
Executive shall, to the extent not already vested, immediately
vest and be payable.
3) All outstanding but unearned performance shares shall be
forfeited.
4) All of Executive's non-qualified deferred compensation or
retirement benefits, if any, accrued through the date of
termination under any non-qualified deferred compensation plan or
arrangement shall immediately vest and be payable, to the extent
permissible under the terms of such plan or arrangement.
e) In the event of a termination of Executive's employment under
the circumstances described in paragraph 1(b) above:
1) All stock options previously awarded to Executive which are
exercisable on the date of termination shall be exercisable
(subject to applicable blackout restrictions) for up to six months
following the date of termination or the original expiration date,
whichever is sooner.
2) All unvested shares of restricted stock and all outstanding
but unearned performance shares previously awarded to Executive
shall be forfeited.
3) All of Executive's non-qualified deferred compensation or
retirement benefits, if any, accrued and vested through the date
of termination under any non-qualified deferred compensation plan
or arrangement shall be payable, to the extent permissible under
the terms of such plan or arrangement.
f) If Executive's employment ends under circumstances described
in paragraph 1(a) above as a result of the sale by the Company of
a business unit, division or facility, payments will be made under
this paragraph 1 only if Executive is not offered a substantially
equivalent position with the Company or with the new owner of the
business (without regard to whether Executive accepts such a
position). If Executive receives and accepts a suitable offer
from the new owner of the business and is subsequently terminated
within one year of the closing date of the sale under
circumstances that would result in payment of benefits under this
paragraph 1(a), Executive will be treated as though she had been
terminated by the Company and receive the payments provided for in
this Agreement, less any amounts or benefits provided by the new
owner in connection with Executive's termination.
2. Termination On or After a Change of Control.
a) If, within a two-year period after a Change of Control, (i)
the Company (or any successor) terminates Executive's employment
for any reason other than Permanent Total Disability or Cause (as
defined in paragraphs 7(e) and 7(b)(1)&(2), respectively, below),
or (ii) Executive voluntarily terminates her employment under
circumstances involving a Constructive Termination, Executive will
be entitled to the following compensation, provided that Executive
executes a Release and Non-Competition Agreement satisfactory to
the Company:
1) Base salary earned and as yet unpaid through the effective
date of termination; and
2) Two years' Base Pay; and
3) Two times Executive's Separation Incentive Payment; and
4) Incentive Pay as yet unpaid from the prior fiscal year and
Target Level Incentive Pay (as defined in paragraph 7(h) below)
for the fiscal year of termination, prorated for the period of
Executive's actual employment prior to termination; and
5) Executive's vested Cash Balance Pension Benefit plus an
amount equal to the present value of the additional vested pension
benefits payable to Executive in accordance with the Company's
Supplemental Executive Retirement Plan (the "SERP"), as approved
by the Compensation Committee of the Board of Directors on
December 11, 1997 and referenced in the November 24, 1998 letter
from Glen Hiner, a copy of which is appended to this Agreement.
Executive's regular, vested pension earnings will not be increased
by compensation paid under the SERP.
b) If, within a two-year period after a Change of Control, the
Company (or any successor) terminates Executive's employment for
Cause (as defined in paragraph 7(b)(3), below, Executive will only
be entitled to base salary earned and as yet unpaid through the
effective date of termination and Executive's vested Cash Balance
and vested SERP Pension Benefits, UNLESS, (i) the Company
exercises its discretion to award Executive (in addition to the
aforementioned base salary and vested pension amounts) some
portion of the following compensation, based on effort expended
and results obtained to date and (ii) Executive executes a Release
and Non-Competition Agreement satisfactory to the Company:
1) Up to but no more than Twelve months' Base Pay (as defined in
paragraph 7(a) below); and
2) Up to but no more than One times Executive's Separation
Incentive Payment (as defined in paragraph 7(f) below); and
3) Up to but no more than the amount of Incentive Pay as yet
unpaid from the prior fiscal year.
c) The compensation payable under paragraphs 2(a) or 2(b),
above, will be paid as soon as practicable after Executive signs,
returns and does not revoke the requisite Release and Non-
Competition Agreement.
d) In the event of a termination of Executive's employment under
the circumstances described in paragraph 2(a) above:
1) All stock options previously awarded to Executive shall, to
the extent not already vested, immediately vest, and shall be
exercisable (subject to applicable blackout restrictions) for up
to six months following the date of termination or the original
expiration date, whichever is sooner.
2) All shares of restricted stock previously awarded to
Executive shall, to the extent not already vested, immediately
vest and be payable.
3) All outstanding but unearned performance shares shall be
forfeited.
4) All of Executive's non-qualified deferred compensation or
retirement benefits, if any, accrued through the date of
termination under any non-qualified deferred compensation plan or
arrangement shall immediately vest and be payable, to the extent
permissible under the terms of such plan or arrangement.
e) In the event of a termination of Executive's employment under
the circumstances described in paragraph 2(b) above:
1) All stock options previously awarded to Executive which are
exercisable on the date of termination shall be exercisable
(subject to applicable blackout restrictions) for up to six months
following the date of termination or the original expiration date,
whichever is sooner.
2) All unvested shares of restricted stock and all outstanding
but unearned performance shares previously awarded to Executive
shall be forfeited.
3) All of Executive's non-qualified deferred compensation or
retirement benefits, if any, accrued and vested through the date
of termination under any non-qualified deferred compensation plan
or arrangement shall be payable, to the extent permissible under
the terms of such plan or arrangement.
f) The Compensation Committee of the Board of Directors, in its
sole discretion, may determine that no Change of Control or
Potential Change of Control shall be deemed to have occurred with
respect to any Executive who, in connection with a Change of
Control or Potential Change of Control, acts in a capacity other
than in their capacity as an employee of the Corporation, its
subsidiaries or affiliates or otherwise fails to act in the
Company's best interests with respect to said Change of Control.
3. Termination For Other Reasons. If Executive voluntarily
terminates her employment (including by reason of retirement)
other than as provided in paragraph 1(a) or 2(a) above, or if
Executive's employment terminates due to death or Permanent Total
Disability, Executive shall not be entitled to any benefits under
this Agreement, but shall be entitled to any other benefits to
which she is otherwise entitled under the terms of any employee
benefit plans or arrangements of the Company.
4. Continuation of Insurance Benefits. In the event Executive's
employment terminates under the circumstances described in
paragraph 1(a) or 2(a) of this Agreement, the Company will
continue Executive's participation and coverage for a period of
two years (the "Severance Period") from Executive's last day of
employment with the Company under all the Company's life, medical
and dental plans ("Insurance Benefits"), in which Executive is
participating immediately prior to such employment termination,
subject to the Company's right to modify the terms of the plans or
arrangements providing these benefits. If Executive is employed by
another entity during the Severance Period, the Company will be a
secondary obligor only with respect to medical and dental
Insurance Benefits.
5. Non-Duplication of Benefits. Any compensation or benefits
payable under the terms of this Agreement will be offset and not
augmented by other compensation or benefits of the same or similar
type payable under any existing plan or agreement of the Company
or any other arrangement between Executive and the Company
covering the Executive (including, but not limited to, any Company
severance policy and the Company's Annual Incentive Plan). It is
intended that this Agreement not duplicate benefits Executive is
entitled to under the Company's regular severance policy, any
related policies, or any other contracts, agreements or
arrangements between Executive and the Company.
6. Term. This Agreement shall be effective from the date hereof
throughout Executive's term of employment as an officer of the
Company, but shall expire and be of no effect immediately after
the second anniversary of a Change of Control.
7. Certain Defined Terms. As used herein, the following terms
shall have the following meanings:
a) "Base Pay" shall mean the greater of the annual salary paid
to Executive as of the date of termination of her employment or
the date of the Change of Control, as the case may be,
notwithstanding any pay reduction that may be related to a
Constructive Termination.
b) "Cause" shall mean:
1) conviction of any felony or failure to contest prosecution
for a felony; or
2) willful misconduct or dishonesty which is directly and
materially harmful to the business or reputation of the Company;
or
3) willful or continued failure to substantially perform her
duties as an executive of the Company, other than as a result of
total or partial incapacity due to physical or mental illness
(abuse of alcohol, drugs or controlled substances not being
considered a physical or mental illness for purposes of this
paragraph), unless within three to six months after written notice
has been provided to Executive by the Company, Executive cures
such willful or continued failure to perform.
c) "Change of Control" shall mean:
1) the holders of the voting securities of the Company shall
have approved a merger or consolidation of the Company with any
other entity, unless the proposed merger or consolidation would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) more than 50% of the total voting power
represented by the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation, where such merger or consolidation is, in fact,
consummated;
2) a plan of complete liquidation of the Company shall have been
adopted or the holders of voting securities of the Company shall
have approved an agreement for the sale or disposition by the
Company (in one transaction or a series of transactions) of all or
substantially all of the Company's assets;
3) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934 (the "1934 Act")
shall become the "beneficial owner" (as defined in Rule 13d-3
under the 1934 Act), directly or indirectly, of 15% or more of the
combined voting power of the Company's then outstanding shares;
4) during any period of two consecutive years, members who at
the beginning of such period constituted the Board shall have
ceased for any reason to constitute a majority thereof, unless the
election, or nomination for election by the Company's
stockholders, of each director shall have been approved by the
vote of at least two-thirds of the directors then still in office
and who were directors at the beginning of such period (so long as
such director was not nominated by a person who has expressed an
intent to effect a Change of Control or engage in a proxy or other
control contest); or
5) the occurrence of any other change of control of a nature
that would be required to be reported in accordance with Form 8-K
pursuant to Sections 13 or 15(d) of the 1934 Act or in the
Company's proxy statement in accordance with Schedule 14A of
Regulation 14A promulgated under the 1934 Act, or in any successor
forms or regulations to the same effect.
d) A "Constructive Termination" shall be deemed to have occurred
only if:
1) prior to a Change of Control: Executive's Base Pay is
reduced without her written consent; or
2) on or within a two-year period after a Change of Control: (A)
Executive's Base Pay or annual incentive pay opportunity is
reduced without her written consent; (B) Executive is required by
the Company without her written consent to relocate to a new place
of business that is more than fifty miles from Executive's place
of business prior to the Change of Control (or the Company
mandates a substantial increase in the amount of required business
travel); or (C) there is a material adverse change in Executive's
duties or responsibilities in comparison to the duties or
responsibilities which Executive had prior to the Change of
Control.
e) "Permanent Total Disability" shall be deemed to have occurred
if, at the end of any month Executive then is, and has been, for
eighteen (18) consecutive calendar months then ending, unable to
perform her duties in the normal and regular manner due to mental
or physical illness or injury. Any determination of such
inability to perform shall be made by the Company in good faith.
f) "Separation Incentive Payment" shall be the greater of (i)
Executive's average payments under the Company's normal, annual
Corporate Incentive Plan (CIP) for the three years immediately
preceding the year of termination (or annualized for such shorter
period as Executive may have been employed by the Company), or
(ii) one-half of Executive's average participating salary under
such Plan for the three years immediately preceding the year of
termination (or annualized for such shorter period as Executive
may have been employed by the Company).
g) "Participating Salary" is the product of Executive's total
base salary paid during any given incentive year, multiplied by
Executive's incentive pay percentage, at maximum funding.
h) "Target Level Incentive" shall be the greater of (i) one-half
of Executive's participating salary under the Company's Annual
Incentive Plan for the year of termination, or (ii) the payment
Executive would have received under such Plan for the year of
termination based on projected corporate performance for such year
as determined by the Committee in its sole discretion at the time
of the Change of Control.
8. Outplacement Assistance. The Company will arrange
outplacement assistance for Executive, to be provided by a
mutually agreed-upon firm engaged in said business. Such
assistance shall continue for up to one year following Executive's
termination or until such time as suitable employment is attained,
whichever is sooner. Outplacement costs incurred in this
connection will be borne by the Company, but will not include
costs of travel to/from the outplacement firm or in connection
with job interviews, etc. For up to six months following
Executive's termination, the Company will also make available
reasonable office space and administrative and communication
services for Executive's use in seeking suitable employment. In
no event will the Company pay Executive in lieu of outplacement
assistance.
9. Confidentiality. Consistent with Executive's preexisting
legal and contractual obligations and in exchange for the
consideration provided by the Company in this Agreement and for
Executive's continued employment and exposure to confidential
information at the Company, Executive agrees to hold in strict
confidence and not disclose to any other person any confidential
or proprietary information of the Company, including, without
limitation, trade secrets, formulas for Company products,
production techniques or processes or methods and apparatus for
producing any products of the Company, or other non-public
information relating to the business, research and development,
employees and/or customers of the Company and its subsidiaries and
affiliates, except to the extent required by law, or with the
written consent of the Company. Executive will, immediately on
termination, deliver to the Company all files containing data,
correspondence, books, notes, and other written, graphic or
computer records under Executive's control relating to the Company
or its subsidiaries or affiliates, regardless of the media in
which they are embodied or contained.
10. Agreement Not To Compete. In exchange for the consideration
provided by the Company in this Agreement as well as Executive's
continued employment and exposure to confidential information at
the Company, Executive agrees not to, directly or indirectly, for
a period of two years following Executive's termination of
employment, engage or participate in any business that is involved
in research or development activities or in the manufacturing of
any product which competes with any of the Company's products,
except with the written consent of the Company. On termination,
Executive agrees to execute a separate Release and Non-Competition
Agreement in a form acceptable to the Company to memorialize this
agreement and understands that the failure to do so will render
Executive ineligible for any severance pay, benefits or privileges
whatsoever.
11. Mutual Release and Indemnity. In the event of Executive's
termination under circumstances described in paragraphs 1(a),
1(b). 2(a) or 2(b), the Company agrees to release and discharge
Executive from any claim it may then or thereafter have against
Executive with respect to employment with the Company or any of
its subsidiaries or affiliates (other than with regard to
Executive's obligations under this Agreement), and agrees to
indemnify Executive in accordance with its then current policies
or practices for active employees for any claims made against
Executive by third parties arising out of the proper performance
of Executive's duties as an employee of the Company or any of its
subsidiaries or affiliates. In exchange for the consideration
provided by the Company in this Agreement, together with the
Company's release and indemnity, Executive agrees to release and
discharge the Company, and its subsidiaries, affiliates, officers,
directors, employees and agents (the "Released Persons") from any
claim that Executive may then or thereafter have against the
Company or such Released Persons (excluding any claim for the
compensation, benefits and privileges described herein) arising
out of or in connection with Executive's employment or termination
of employment by the Company or any of its subsidiaries or
affiliates. On termination, Executive agrees to execute a
separate Release and Non-Competition Agreement in a form
acceptable to the Company to memorialize this agreement and
understands that the failure to do so will render Executive
ineligible for any severance pay, benefits or privileges
whatsoever.
12. Severability. Whenever possible each provision and term of
this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or
term of this Agreement shall be held to be prohibited by or
invalid under such applicable law, then such provision or term
shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating or affecting in any manner
whatsoever the remainder of such provision or term, or the
remaining provisions or terms of this Agreement.
13. Modification and Waiver of Breach. No waiver or modification
of this Agreement shall be binding unless it is in writing, signed
by the parties hereto. No waiver of a breach hereof shall be
deemed to constitute a waiver of a further breach, whether of a
similar or dissimilar nature.
14. Assignment. This Agreement shall be binding upon and inure
to the benefit of any successors of the Company. As used herein,
"successors" shall include any person, firm, corporation or other
business entity which at any time, whether by merger, purchase or
otherwise, acquires all or substantially all of the assets or
business of the Company.
15. Notice. Any written notice to be given hereunder to
Executive may be delivered to her personally or shall be deemed to
have been given upon deposit thereof in the U.S. mail, certified
mail, postage prepaid, addressed to Executive at the address as it
shall appear on the records of the Company.
16. Construction of Agreement. This Agreement is made and
entered into in the State of Ohio and shall be construed under the
laws of Ohio.
17. Entire Agreement. This Agreement constitutes the entire
understanding between the parties with respect to Executive's
severance pay, benefits and privileges in the event of a
termination of Executive's employment with the Company,
superseding all negotiations, prior discussions and agreements,
written or oral, concerning said severance arrangements. This
Agreement may not be amended except in writing by the parties
hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
OWENS CORNING,
Glen H. Hiner
Chairman and CEO
Agreed to and accepted:
___________________________
Date: ____________________
Exhibit 10
KEY MANAGEMENT SEVERANCE AGREEMENT
This Severance Agreement (the "Agreement") is made as of
November 24, 1998 by and between OWENS CORNING, a Delaware
corporation (the "Company"), and Domenico Cecere, an officer of
the Company ("Executive").
WHEREAS the Company and Executive have previously entered
into a Severance Agreement dated as of April 4, 1997 (the "Prior
Agreement") providing for certain benefits to be conferred upon
Executive under specified circumstances in the event that
Executive's employment is terminated by the Company on the terms
and conditions set forth therein, and:
WHEREAS the Compensation Committee of the Board of Directors
of the Company (the "Committee") has approved a new severance
agreement to provide Executive with certain additional protections
and to conform the terms of such agreement to the current policy
of the Company regarding an officer's entitlement to pay, benefits
and privileges on the termination of his employment;
NOW THEREFORE, the parties hereto agree as follows:
1. Termination Absent a Change of Control.
a) If, prior to a Change of Control (as defined in paragraph
7(c) below), (i) the Company terminates Executive's employment for
any reason other than Permanent Total Disability or Cause (as
defined in paragraphs 7(e) and 7(b)(1)&(2), respectively, below),
or (ii) Executive voluntarily terminates his employment under
circumstances involving a Constructive Termination (as defined in
paragraph 7(d), below), Executive will be entitled to the
following compensation, provided that Executive executes a Release
and Non-Competition Agreement satisfactory to the Company:
1) Base salary earned and as yet unpaid through the effective
date of termination; and
2) Two years' Base Pay (as defined in paragraph 7(a) below); and
3) Two times Executive's Separation Incentive Payment (as
defined in paragraph 7(f) below); and
4) Incentive Pay as yet unpaid from the prior fiscal year and
Incentive Pay for the fiscal year of termination, prorated for the
period of Executive's actual employment prior to termination; and
5) The greater of (i) Executive's vested Cash Balance Pension
Benefit, or (ii) an amount equal to Executive's vested Pension
Benefit under the Company's Salaried Employees' (Final Average)
Retirement Plan plus a pension supplement calculated as though
Executive had been credited with three additional years of service
under that Plan and had Executive been three years older at the
date of termination, or (iii) Executive's separately negotiated
Pension Agreement amount, referenced in the December 9, 1997
letter (and attachment) from Glen Hiner, a copy of which is
appended to this Agreement.
b) If, prior to a Change of Control, the Company terminates
Executive's employment for Cause (as defined in paragraph 7(b)(3),
below), Executive will only be entitled to base salary earned and
as yet unpaid through the effective date of termination and
Executive's vested Cash Balance Pension Benefit, or Executive's
vested Final Average Plan Pension Benefit, or Executive's
separately negotiated Pension Agreement amount, whichever is
greater, UNLESS, (i) the Company exercises its discretion to award
Executive (in addition to the aforementioned base salary and
vested pension amounts) some portion of the following
compensation, based on effort expended and results obtained to
date and (ii) Executive executes a Release and Non-Competition
Agreement satisfactory to the Company:
1) Up to but no more than Twelve months' Base Pay (as defined in
paragraph 7(a) below); and
2) Up to but no more than One times Executive's Separation
Incentive Payment (as defined in paragraph 7(f) below); and
3) Up to but no more than the amount of Incentive Pay as yet
unpaid from the prior fiscal year.
c) The compensation payable under paragraph 1(a) or 1(b), above,
shall be paid as soon as practicable after Executive signs,
returns and does not revoke the requisite Release and Non-
Competition Agreement.
d) In the event of a termination of Executive's employment under
the circumstances described in paragraph 1(a) above:
1) All stock options previously awarded to Executive shall, to
the extent not already vested, immediately vest, and shall be
exercisable (subject to applicable blackout restrictions) for up
to six months following the date of termination or the original
expiration date, whichever is sooner.
2) All shares of restricted stock previously awarded to
Executive shall, to the extent not already vested, immediately
vest and be payable.
3) All outstanding but unearned performance shares shall be
forfeited.
4) All of Executive's non-qualified deferred compensation or
retirement benefits, if any, accrued through the date of
termination under any non-qualified deferred compensation plan or
arrangement shall immediately vest and be payable, to the extent
permissible under the terms of such plan or arrangement.
e) In the event of a termination of Executive's employment under
the circumstances described in paragraph 1(b) above:
1) All stock options previously awarded to Executive which are
exercisable on the date of termination shall be exercisable
(subject to applicable blackout restrictions) for up to six months
following the date of termination or the original expiration date,
whichever is sooner.
2) All unvested shares of restricted stock and all outstanding
but unearned performance shares previously awarded to Executive
shall be forfeited.
3) All of Executive's non-qualified deferred compensation or
retirement benefits, if any, accrued and vested through the date
of termination under any non-qualified deferred compensation plan
or arrangement shall be payable, to the extent permissible under
the terms of such plan or arrangement.
f) If Executive's employment ends under circumstances described
in paragraph 1(a) above as a result of the sale by the Company of
a business unit, division or facility, payments will be made under
this paragraph 1 only if Executive is not offered a substantially
equivalent position with the Company or with the new owner of the
business (without regard to whether Executive accepts such a
position). If Executive receives and accepts a suitable offer
from the new owner of the business and is subsequently terminated
within one year of the closing date of the sale under
circumstances that would result in payment of benefits under this
paragraph 1(a), Executive will be treated as though he had been
terminated by the Company and receive the payments provided for in
this Agreement, less any amounts or benefits provided by the new
owner in connection with Executive's termination.
2. Termination On or After a Change of Control.
a) If, within a two-year period after a Change of Control, (i)
the Company (or any successor) terminates Executive's employment
for any reason other than Permanent Total Disability or Cause (as
defined in paragraphs 7(e) and 7(b)(1)&(2), respectively, below),
or (ii) Executive voluntarily terminates his employment under
circumstances involving a Constructive Termination, Executive will
be entitled to the following compensation, provided that Executive
executes a Release and Non-Competition Agreement satisfactory to
the Company:
1) Base salary earned and as yet unpaid through the effective
date of termination; and
2) Two years' Base Pay; and
3) Two times Executive's Separation Incentive Payment; and
4) Incentive Pay as yet unpaid from the prior fiscal year and
Target Level Incentive Pay (as defined in paragraph 7(h) below)
for the fiscal year of termination, prorated for the period of
Executive's actual employment prior to termination; and
5) The greater of (i) Executive's vested Cash Balance Pension
Benefit, or (ii) an amount equal to Executive's vested Pension
Benefit under the Company's Salaried Employees' (Final Average)
Retirement Plan plus a pension supplement calculated as though
Executive had been credited with three additional years of service
under that Plan and had Executive been three years older at the
date of termination, or (iii) Executive's separately negotiated
Pension Agreement amount, referenced in the December 9, 1997
letter (and attachment) from Glen Hiner, a copy of which is
appended to this Agreement.
b) If, within a two-year period after a Change of Control, the
Company (or any successor) terminates Executive's employment for
Cause (as defined in paragraph 7(b)(3), below), Executive will
only be entitled to base salary earned and as yet unpaid through
the effective date of termination and Executive's vested Cash
Balance Pension Benefit, or Executive's vested Final Average Plan
Pension Benefit, or Executive's separately negotiated Pension
Agreement amount, whichever is greater, UNLESS, (i) the Company
exercises its discretion to award Executive (in addition to the
aforementioned base salary and vested pension amounts) some
portion of the following compensation, based on effort expended
and results obtained to date and (ii) Executive executes a Release
and Non-Competition Agreement satisfactory to the Company:
1) Up to but no more than Twelve months' Base Pay (as defined in
paragraph 7(a) below); and
2) Up to but no more than One times Executive's Separation
Incentive Payment (as defined in paragraph 7(f) below); and
3) Up to but no more than the amount of Incentive Pay as yet
unpaid from the prior fiscal year.
c) The compensation payable under paragraphs 2(a) or 2(b),
above, will be paid as soon as practicable after Executive signs,
returns and does not revoke the requisite Release and Non-
Competition Agreement.
d) In the event of a termination of Executive's employment under
the circumstances described in paragraph 2(a) above:
1) All stock options previously awarded to Executive shall, to
the extent not already vested, immediately vest, and shall be
exercisable (subject to applicable blackout restrictions) for up
to six months following the date of termination or the original
expiration date, whichever is sooner.
2) All shares of restricted stock previously awarded to
Executive shall, to the extent not already vested, immediately
vest and be payable.
3) All outstanding but unearned performance shares shall be
forfeited.
4) All of Executive's non-qualified deferred compensation or
retirement benefits, if any, accrued through the date of
termination under any non-qualified deferred compensation plan or
arrangement shall immediately vest and be payable, to the extent
permissible under the terms of such plan or arrangement.
e) In the event of a termination of Executive's employment under
the circumstances described in paragraph 2(b) above:
1) All stock options previously awarded to Executive which are
exercisable on the date of termination shall be exercisable
(subject to applicable blackout restrictions) for up to six months
following the date of termination or the original expiration date,
whichever is sooner.
2) All unvested shares of restricted stock and all outstanding
but unearned performance shares previously awarded to Executive
shall be forfeited.
3) All of Executive's non-qualified deferred compensation or
retirement benefits, if any, accrued and vested through the date
of termination under any non-qualified deferred compensation plan
or arrangement shall be payable, to the extent permissible under
the terms of such plan or arrangement.
f) The Compensation Committee of the Board of Directors, in its
sole discretion, may determine that no Change of Control or
Potential Change of Control shall be deemed to have occurred with
respect to any Executive who, in connection with a Change of
Control or Potential Change of Control, acts in a capacity other
than in their capacity as an employee of the Corporation, its
subsidiaries or affiliates or otherwise fails to act in the
Company's best interests with respect to said Change of Control.
3. Termination For Other Reasons. If Executive voluntarily
terminates his employment (including by reason of retirement)
other than as provided in paragraph 1(a) or 2(a) above, or if
Executive's employment is terminated due to death or Permanent
Total Disability, Executive shall not be entitled to any benefits
under this Agreement, but shall be entitled to any other benefits
to which he is otherwise entitled under the terms of any employee
benefit plans or arrangements of the Company.
4. Continuation of Insurance Benefits. In the event Executive's
employment terminates under the circumstances described in
paragraph 1(a) or 2(a) of this Agreement, the Company will
continue Executive's participation and coverage for a period of
two years (the "Severance Period") from Executive's last day of
employment with the Company under all the Company's life, medical
and dental plans ("Insurance Benefits"), in which Executive is
participating immediately prior to such employment termination,
subject to the Company's right to modify the terms of the plans or
arrangements providing these benefits. If Executive is employed by
another entity during the Severance Period, the Company will be a
secondary obligor only with respect to medical and dental
Insurance Benefits and life insurance coverage shall immediately
cease.
5. Non-Duplication of Benefits. Any compensation or benefits
payable under the terms of this Agreement will be offset and not
augmented by other compensation or benefits of the same or similar
type payable under any existing plan or agreement of the Company
or any other arrangement between Executive and the Company
covering the Executive (including, but not limited to, any Company
severance policy and the Company's Annual Incentive Plan). It is
intended that this Agreement not duplicate benefits Executive is
entitled to under the Company's regular severance policy, any
related policies, or any other contracts, agreements or
arrangements between Executive and the Company.
6. Term. This Agreement shall be effective from the date hereof
throughout Executive's term of employment as an officer of the
Company, but shall expire and be of no effect immediately after
the second anniversary of a Change of Control.
7. Certain Defined Terms. As used herein, the following terms
shall have the following meanings:
a) "Base Pay" shall mean the greater of the annual salary paid
to Executive as of the date of termination of his employment or
the date of the Change of Control, as the case may be,
notwithstanding any pay reduction that may be related to a
Constructive Termination.
b) "Cause" shall mean:
1) conviction of any felony or failure to contest prosecution
for a felony; or
2) willful misconduct or dishonesty which is directly and
materially harmful to the business or reputation of the Company;
or
3) willful or continued failure to substantially perform his
duties as an executive of the Company, other than as a result of
total or partial incapacity due to physical or mental illness
(abuse of alcohol, drugs or controlled substances not being
considered a physical or mental illness for purposes of this
paragraph), unless within three to six months after written notice
has been provided to Executive by the Company, Executive cures
such willful or continued failure to perform.
c) "Change of Control" shall mean:
1) the holders of the voting securities of the Company shall
have approved a merger or consolidation of the Company with any
other entity, unless the proposed merger or consolidation would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) more than 50% of the total voting power
represented by the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation, where such merger or consolidation is, in fact,
consummated;
2) a plan of complete liquidation of the Company shall have been
adopted or the holders of voting securities of the Company shall
have approved an agreement for the sale or disposition by the
Company (in one transaction or a series of transactions) of all or
substantially all of the Company's assets;
3) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934 (the "1934 Act")
shall become the "beneficial owner" (as defined in Rule 13d-3
under the 1934 Act), directly or indirectly, of 15% or more of the
combined voting power of the Company's then outstanding shares;
4) during any period of two consecutive years, members who at
the beginning of such period constituted the Board shall have
ceased for any reason to constitute a majority thereof, unless the
election, or nomination for election by the Company's
stockholders, of each director shall have been approved by the
vote of at least two-thirds of the directors then still in office
and who were directors at the beginning of such period (so long as
such director was not nominated by a person who has expressed an
intent to effect a Change of Control or engage in a proxy or other
control contest); or
5) the occurrence of any other change of control of a nature
that would be required to be reported in accordance with Form 8-K
pursuant to Sections 13 or 15(d) of the 1934 Act or in the
Company's proxy statement in accordance with Schedule 14A of
Regulation 14A promulgated under the 1934 Act, or in any successor
forms or regulations to the same effect.
d) A "Constructive Termination" shall be deemed to have occurred
only if:
1) prior to a Change of Control: Executive's Base Pay is
reduced without his written consent; or
2) on or within a two-year period after a Change of Control: (A)
Executive's Base Pay or annual incentive pay opportunity is
reduced without his written consent; (B) Executive is required by
the Company without his written consent to relocate to a new place
of business that is more than fifty miles from Executive's place
of business prior to the Change of Control (or the Company
mandates a substantial increase in the amount of required business
travel); or (C) there is a material adverse change in Executive's
duties or responsibilities in comparison to the duties or
responsibilities which Executive had prior to the Change of
Control.
e) "Permanent Total Disability" shall be deemed to have occurred
if, at the end of any month Executive then is, and has been, for
eighteen (18) consecutive calendar months then ending, unable to
perform his duties in the normal and regular manner due to mental
or physical illness or injury. Any determination of such
inability to perform shall be made by the Company in good faith.
f) "Separation Incentive Payment" shall be the greater of (i)
Executive's average payments under the Company's normal, annual
Corporate Incentive Plan (CIP) for the three years immediately
preceding the year of termination (or annualized for such shorter
period as Executive may have been employed by the Company), or
(ii) one-half of Executive's average participating salary under
such Plan for the three years immediately preceding the year of
termination (or annualized for such shorter period as Executive
may have been employed by the Company).
g) "Participating Salary" is the product of Executive's total
base salary paid during any given incentive year, multiplied by
Executive's incentive pay percentage, at maximum funding.
h) "Target Level Incentive" shall be the greater of (i) one-half
of Executive's participating salary under the Company's Annual
Incentive Plan for the year of termination, or (ii) the payment
Executive would have received under such Plan for the year of
termination based on projected corporate performance for such year
as determined by the Committee in its sole discretion at the time
of the Change of Control.
8. Outplacement Assistance. The Company will arrange
outplacement assistance for Executive, to be provided by a
mutually agreed-upon firm engaged in said business. Such
assistance shall continue for up to one year following Executive's
termination or until such time as suitable employment is attained,
whichever is sooner. Outplacement costs incurred in this
connection will be borne by the Company, but will not include
costs of travel to/from the outplacement firm or in connection
with job interviews, etc. For up to six months following
Executive's termination, the Company will also make available
reasonable office space and administrative and communication
services for Executive's use in seeking suitable employment. In
no event will the Company pay Executive in lieu of outplacement
assistance.
9. Confidentiality. Consistent with Executive's preexisting
legal and contractual obligations and in exchange for the
consideration provided by the Company in this Agreement and for
Executive's continued employment and exposure to confidential
information at the Company, Executive agrees to hold in strict
confidence and not disclose to any other person any confidential
or proprietary information of the Company, including, without
limitation, trade secrets, formulas for Company products,
production techniques or processes or methods and apparatus for
producing any products of the Company, or other non-public
information relating to the business, research and development,
employees and/or customers of the Company and its subsidiaries and
affiliates, except to the extent required by law, or with the
written consent of the Company. Executive will, immediately on
termination, deliver to the Company all files containing data,
correspondence, books, notes, and other written, graphic or
computer records under Executive's control relating to the Company
or its subsidiaries or affiliates, regardless of the media in
which they are embodied or contained.
10. Agreement Not To Compete. In exchange for the consideration
provided by the Company in this Agreement as well as Executive's
continued employment and exposure to confidential information at
the Company, Executive agrees not to, directly or indirectly, for
a period of two years following Executive's termination of
employment, engage or participate in any business that is involved
in research or development activities or in the manufacturing of
any product which competes with any of the Company's products,
except with the written consent of the Company. On termination,
Executive agrees to execute a separate Release and Non-Competition
Agreement in a form acceptable to the Company to memorialize this
agreement and understands that the failure to do so will render
Executive ineligible for any severance pay, benefits or privileges
whatsoever.
11. Mutual Release and Indemnity. In the event of Executive's
termination under circumstances described in paragraphs 1(a),
1(b), 2(a) or 2(b), the Company agrees to release and discharge
Executive from any claim it may then or thereafter have against
Executive with respect to employment with the Company or any of
its subsidiaries or affiliates (other than with regard to
Executive's obligations under this Agreement), and agrees to
indemnify Executive in accordance with its then current policies
or practices for active employees for any claims made against
Executive by third parties arising out of the proper performance
of Executive's duties as an employee of the Company or any of its
subsidiaries or affiliates. In exchange for the consideration
provided by the Company in this Agreement, together with the
Company's release and indemnity, Executive agrees to release and
discharge the Company, and its subsidiaries, affiliates, officers,
directors, employees and agents (the "Released Persons") from any
claim that Executive may then or thereafter have against the
Company or such Released Persons (excluding any claim for the
compensation, benefits and privileges described herein) arising
out of or in connection with Executive's employment or termination
of employment by the Company or any of its subsidiaries or
affiliates. On termination, Executive agrees to execute a
separate Release and Non-Competition Agreement in a form
acceptable to the Company to memorialize this agreement and
understands that the failure to do so will render Executive
ineligible for any severance pay, benefits or privileges
whatsoever.
12. Severability. Whenever possible each provision and term of
this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or
term of this Agreement shall be held to be prohibited by or
invalid under such applicable law, then such provision or term
shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating or affecting in any manner
whatsoever the remainder of such provision or term, or the
remaining provisions or terms of this Agreement.
13. Modification and Waiver of Breach. No waiver or modification
of this Agreement shall be binding unless it is in writing, signed
by the parties hereto. No waiver of a breach hereof shall be
deemed to constitute a waiver of a further breach, whether of a
similar or dissimilar nature.
14. Assignment. This Agreement shall be binding upon and inure
to the benefit of any successors of the Company. As used herein,
"successors" shall include any person, firm, corporation or other
business entity which at any time, whether by merger, purchase or
otherwise, acquires all or substantially all of the assets or
business of the Company.
15. Notice. Any written notice to be given hereunder to
Executive may be delivered to him personally or shall be deemed to
have been given upon deposit thereof in the U.S. mail, certified
mail, postage prepaid, addressed to Executive at the address as it
shall appear on the records of the Company.
16. Construction of Agreement. This Agreement is made and
entered into in the State of Ohio and shall be construed under the
laws of Ohio.
17. Entire Agreement. This Agreement constitutes the entire
understanding between the parties with respect to Executive's
severance pay, benefits and privileges in the event of a
termination of Executive's employment with the Company,
superseding all negotiations, prior discussions and agreements,
written or oral, concerning said severance arrangements. This
Agreement may not be amended except in writing by the parties
hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
OWENS CORNING,
Glen H. Hiner
Chairman and CEO
Agreed to and accepted:
___________________________
Date: ____________________
Exhibit 10
KEY MANAGEMENT SEVERANCE AGREEMENT
This Severance Agreement (the "Agreement") is made as of
November 24, 1998 by and between OWENS CORNING, a Delaware
corporation (the "Company"), and J. Thurston Roach, an officer of
the Company ("Executive").
WHEREAS the Compensation Committee of the Board of Directors
of the Company (the "Committee") has approved a severance
agreement to provide Executive with certain protections and to
conform the terms of such agreement to the current policy of the
Company regarding an officer's entitlement to pay, benefits and
privileges on the termination of his employment;
NOW THEREFORE, the parties hereto agree as follows:
1. Termination Absent a Change of Control.
a) If, prior to a Change of Control (as defined in paragraph
7(c) below), (i) the Company terminates Executive's employment for
any reason other than Permanent Total Disability or Cause (as
defined in paragraphs 7(e) and 7(b)(1)&(2), respectively, below),
or (ii) Executive voluntarily terminates his employment under
circumstances involving a Constructive Termination (as defined in
paragraph 7(d), below), Executive will be entitled to the
following compensation, provided that Executive executes a Release
and Non-Competition Agreement satisfactory to the Company:
1) Base salary earned and as yet unpaid through the effective
date of termination; and
2) Two years' Base Pay (as defined in paragraph 7(a) below); and
3) Two times Executive's Separation Incentive Payment (as
defined in paragraph 7(f) below); and
4) Incentive Pay as yet unpaid from the prior fiscal year and
Incentive Pay for the fiscal year of termination, prorated for the
period of Executive's actual employment prior to termination; and
5) Executive's vested Cash Balance Pension Benefit.
b) If, prior to a Change of Control, the Company terminates
Executive's employment for Cause (as defined in paragraph 7(b)(3),
below), Executive will only be entitled to base salary earned and
as yet unpaid through the effective date of termination and
Executive's vested Cash Balance Pension Benefit UNLESS, (i) the
Company exercises its discretion to award Executive (in addition
to the aforementioned base salary and vested pension amounts) some
portion of the following compensation, based on effort expended
and results obtained to date and (ii) Executive executes a Release
and Non-Competition Agreement satisfactory to the Company:
1) Up to but no more than Twelve months' Base Pay (as defined in
paragraph 7(a) below); and
2) Up to but no more than One times Executive's Separation
Incentive Payment (as defined in paragraph 7(f) below); and
3) Up to but no more than the amount of Incentive Pay as yet
unpaid from the prior fiscal year.
c) The compensation payable under paragraph 1(a) or 1(b), above,
shall be paid as soon as practicable after Executive signs,
returns and does not revoke the requisite Release and Non-
Competition Agreement.
d) In the event of a termination of Executive's employment under
the circumstances described in paragraph 1(a) above:
1) All stock options previously awarded to Executive shall, to
the extent not already vested, immediately vest, and shall be
exercisable (subject to applicable blackout restrictions) for up
to six months following the date of termination or the original
expiration date, whichever is sooner.
2) All shares of restricted stock previously awarded to
Executive shall, to the extent not already vested, immediately
vest and be payable.
3) All outstanding but unearned performance shares shall be
forfeited.
4) All of Executive's non-qualified deferred compensation or
retirement benefits, if any, accrued through the date of
termination under any non-qualified deferred compensation plan or
arrangement shall immediately vest and be payable, to the extent
permissible under the terms of such plan or arrangement.
e) In the event of a termination of Executive's employment under
the circumstances described in paragraph 1(b) above:
1) All stock options previously awarded to Executive which are
exercisable on the date of termination shall be exercisable
(subject to applicable blackout restrictions) for up to six months
following the date of termination or the original expiration date,
whichever is sooner.
2) All unvested shares of restricted stock and all outstanding
but unearned performance shares previously awarded to Executive
shall be forfeited.
3) All of Executive's non-qualified deferred compensation or
retirement benefits, if any, accrued and vested through the date
of termination under any non-qualified deferred compensation plan
or arrangement shall be payable, to the extent permissible under
the terms of such plan or arrangement.
f) If Executive's employment ends under circumstances described
in paragraph 1(a) above as a result of the sale by the Company of
a business unit, division or facility, payments will be made under
this paragraph 1 only if Executive is not offered a substantially
equivalent position with the Company or with the new owner of the
business (without regard to whether Executive accepts such a
position). If Executive receives and accepts a suitable offer
from the new owner of the business and is subsequently terminated
within one year of the closing date of the sale under
circumstances that would result in payment of benefits under this
paragraph 1(a), Executive will be treated as though he had been
terminated by the Company and receive the payments provided for in
this Agreement, less any amounts or benefits provided by the new
owner in connection with Executive's termination.
2. Termination On or After a Change of Control.
a) If, within a two-year period after a Change of Control, (i)
the Company (or any successor) terminates Executive's employment
for any reason other than Permanent Total Disability or Cause (as
defined in paragraphs 7(e) and 7(b)(1)&(2), respectively, below),
or (ii) Executive voluntarily terminates his employment under
circumstances involving a Constructive Termination, Executive will
be entitled to the following compensation, provided that Executive
executes a Release and Non-Competition Agreement satisfactory to
the Company:
1) Base salary earned and as yet unpaid through the effective
date of termination; and
2) Two years' Base Pay; and
3) Two times Executive's Separation Incentive Payment; and
4) Incentive Pay as yet unpaid from the prior fiscal year and
Target Level Incentive Pay (as defined in paragraph 7(h) below)
for the fiscal year of termination, prorated for the period of
Executive's actual employment prior to termination; and
5) Executive's vested Cash Balance Pension Benefit.
b) If, within a two-year period after a Change of Control, the
Company (or any successor) terminates Executive's employment for
Cause (as defined in paragraph 7(b)(3), below, Executive will only
be entitled to base salary earned and as yet unpaid through the
effective date of termination and Executive's vested Cash Balance
Pension Benefit UNLESS, (i) the Company exercises its discretion
to award Executive (in addition to the aforementioned base salary
and vested pension amounts) some portion of the following
compensation, based on effort expended and results obtained to
date and (ii) Executive executes a Release and Non-Competition
Agreement satisfactory to the Company:
1) Up to but no more than Twelve months' Base Pay (as defined in
paragraph 7(a) below); and
2) Up to but no more than One times Executive's Separation
Incentive Payment (as defined in paragraph 7(f) below); and
3) Up to but no more than the amount of Incentive Pay as yet
unpaid from the prior fiscal year.
c) The compensation payable under paragraphs 2(a) or 2(b),
above, will be paid as soon as practicable after Executive signs,
returns and does not revoke the requisite Release and Non-
Competition Agreement.
d) In the event of a termination of Executive's employment under
the circumstances described in paragraph 2(a) above:
1) All stock options previously awarded to Executive shall, to
the extent not already vested, immediately vest, and shall be
exercisable (subject to applicable blackout restrictions) for up
to six months following the date of termination or the original
expiration date, whichever is sooner.
2) All shares of restricted stock previously awarded to
Executive shall, to the extent not already vested, immediately
vest and be payable.
3) All outstanding but unearned performance shares shall be
forfeited.
4) All of Executive's non-qualified deferred compensation or
retirement benefits, if any, accrued through the date of
termination under any non-qualified deferred compensation plan or
arrangement shall immediately vest and be payable, to the extent
permissible under the terms of such plan or arrangement.
e) In the event of a termination of Executive's employment under
the circumstances described in paragraph 2(b) above:
1) All stock options previously awarded to Executive which are
exercisable on the date of termination shall be exercisable
(subject to applicable blackout restrictions) for up to six months
following the date of termination or the original expiration date,
whichever is sooner.
2) All unvested shares of restricted stock and all outstanding
but unearned performance shares previously awarded to Executive
shall be forfeited.
3) All of Executive's non-qualified deferred compensation or
retirement benefits, if any, accrued and vested through the date
of termination under any non-qualified deferred compensation plan
or arrangement shall be payable, to the extent permissible under
the terms of such plan or arrangement.
f) The Compensation Committee of the Board of Directors, in its
sole discretion, may determine that no Change of Control or
Potential Change of Control shall be deemed to have occurred with
respect to any Executive who, in connection with a Change of
Control or Potential Change of Control, acts in a capacity other
than in their capacity as an employee of the Corporation, its
subsidiaries or affiliates or otherwise fails to act in the
Company's best interests with respect to said Change of Control.
3. Termination For Other Reasons. If Executive voluntarily
terminates his employment (including by reason of retirement)
other than as provided in paragraph 1(a) or 2(a) above, or if
Executive's employment terminates due to death or Permanent Total
Disability, Executive shall not be entitled to any benefits under
this Agreement, but shall be entitled to any other benefits to
which he is otherwise entitled under the terms of any employee
benefit plans or arrangements of the Company.
4. Continuation of Insurance Benefits. In the event Executive's
employment terminates under the circumstances described in
paragraph 1(a) or 2(a) of this Agreement, the Company will
continue Executive's participation and coverage for a period of
two years (the "Severance Period") from Executive's last day of
employment with the Company under all the Company's life, medical
and dental plans ("Insurance Benefits"), in which Executive is
participating immediately prior to such employment termination,
subject to the Company's right to modify the terms of the plans or
arrangements providing these benefits. If Executive is employed by
another entity during the Severance Period, the Company will be a
secondary obligor only with respect to medical and dental
Insurance Benefits.
5. Non-Duplication of Benefits. Any compensation or benefits
payable under the terms of this Agreement will be offset and not
augmented by other compensation or benefits of the same or similar
type payable under any existing plan or agreement of the Company
or any other arrangement between Executive and the Company
covering the Executive (including, but not limited to, any Company
severance policy and the Company's Annual Incentive Plan). It is
intended that this Agreement not duplicate benefits Executive is
entitled to under the Company's regular severance policy, any
related policies, or any other contracts, agreements or
arrangements between Executive and the Company.
6. Term. This Agreement shall be effective from the date hereof
throughout Executive's term of employment as an officer of the
Company, but shall expire and be of no effect immediately after
the second anniversary of a Change of Control.
7. Certain Defined Terms. As used herein, the following terms
shall have the following meanings:
a) "Base Pay" shall mean the greater of the annual salary paid
to Executive as of the date of termination of his employment or
the date of the Change of Control, as the case may be,
notwithstanding any pay reduction that may be related to a
Constructive Termination.
b) "Cause" shall mean:
1) conviction of any felony or failure to contest prosecution
for a felony; or
2) willful misconduct or dishonesty which is directly and
materially harmful to the business or reputation of the Company;
or
3) willful or continued failure to substantially perform his
duties as an executive of the Company, other than as a result of
total or partial incapacity due to physical or mental illness
(abuse of alcohol, drugs or controlled substances not being
considered a physical or mental illness for purposes of this
paragraph), unless within three to six months after written notice
has been provided to Executive by the Company, Executive cures
such willful or continued failure to perform.
c) "Change of Control" shall mean:
1) the holders of the voting securities of the Company shall
have approved a merger or consolidation of the Company with any
other entity, unless the proposed merger or consolidation would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) more than 50% of the total voting power
represented by the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation, where such merger or consolidation is, in fact,
consummated;
2) a plan of complete liquidation of the Company shall have been
adopted or the holders of voting securities of the Company shall
have approved an agreement for the sale or disposition by the
Company (in one transaction or a series of transactions) of all or
substantially all of the Company's assets;
3) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934 (the "1934 Act")
shall become the "beneficial owner" (as defined in Rule 13d-3
under the 1934 Act), directly or indirectly, of 15% or more of the
combined voting power of the Company's then outstanding shares;
4) during any period of two consecutive years, members who at
the beginning of such period constituted the Board shall have
ceased for any reason to constitute a majority thereof, unless the
election, or nomination for election by the Company's
stockholders, of each director shall have been approved by the
vote of at least two-thirds of the directors then still in office
and who were directors at the beginning of such period (so long as
such director was not nominated by a person who has expressed an
intent to effect a Change of Control or engage in a proxy or other
control contest); or
5) the occurrence of any other change of control of a nature
that would be required to be reported in accordance with Form 8-K
pursuant to Sections 13 or 15(d) of the 1934 Act or in the
Company's proxy statement in accordance with Schedule 14A of
Regulation 14A promulgated under the 1934 Act, or in any successor
forms or regulations to the same effect.
d) A "Constructive Termination" shall be deemed to have occurred
only if:
1) prior to a Change of Control: Executive's Base Pay is
reduced without his written consent; or
2) on or within a two-year period after a Change of Control: (A)
Executive's Base Pay or annual incentive pay opportunity is
reduced without his written consent; (B) Executive is required by
the Company without his written consent to relocate to a new place
of business that is more than fifty miles from Executive's place
of business prior to the Change of Control (or the Company
mandates a substantial increase in the amount of required business
travel); or (C) there is a material adverse change in Executive's
duties or responsibilities in comparison to the duties or
responsibilities which Executive had prior to the Change of
Control.
e) "Permanent Total Disability" shall be deemed to have occurred
if, at the end of any month Executive then is, and has been, for
eighteen (18) consecutive calendar months then ending, unable to
perform his duties in the normal and regular manner due to mental
or physical illness or injury. Any determination of such
inability to perform shall be made by the Company in good faith.
f) "Separation Incentive Payment" shall be the greater of (i)
Executive's average payments under the Company's normal, annual
Corporate Incentive Plan (CIP) for the three years immediately
preceding the year of termination (or annualized for such shorter
period as Executive may have been employed by the Company), or
(ii) one-half of Executive's average participating salary under
such Plan for the three years immediately preceding the year of
termination (or annualized for such shorter period as Executive
may have been employed by the Company).
g) "Participating Salary" is the product of Executive's total
base salary paid during any given incentive year, multiplied by
Executive's incentive pay percentage, at maximum funding.
h) "Target Level Incentive" shall be the greater of (i) one-half
of Executive's participating salary under the Company's Annual
Incentive Plan for the year of termination, or (ii) the payment
Executive would have received under such Plan for the year of
termination based on projected corporate performance for such year
as determined by the Committee in its sole discretion at the time
of the Change of Control.
8. Outplacement Assistance. The Company will arrange
outplacement assistance for Executive, to be provided by a
mutually agreed-upon firm engaged in said business. Such
assistance shall continue for up to one year following Executive's
termination or until such time as suitable employment is attained,
whichever is sooner. Outplacement costs incurred in this
connection will be borne by the Company, but will not include
costs of travel to/from the outplacement firm or in connection
with job interviews, etc. For up to six months following
Executive's termination, the Company will also make available
reasonable office space and administrative and communication
services for Executive's use in seeking suitable employment. In
no event will the Company pay Executive in lieu of outplacement
assistance.
9. Confidentiality. Consistent with Executive's preexisting
legal and contractual obligations and in exchange for the
consideration provided by the Company in this Agreement and for
Executive's continued employment and exposure to confidential
information at the Company, Executive agrees to hold in strict
confidence and not disclose to any other person any confidential
or proprietary information of the Company, including, without
limitation, trade secrets, formulas for Company products,
production techniques or processes or methods and apparatus for
producing any products of the Company, or other non-public
information relating to the business, research and development,
employees and/or customers of the Company and its subsidiaries and
affiliates, except to the extent required by law, or with the
written consent of the Company. Executive will, immediately on
termination, deliver to the Company all files containing data,
correspondence, books, notes, and other written, graphic or
computer records under Executive's control relating to the Company
or its subsidiaries or affiliates, regardless of the media in
which they are embodied or contained.
10. Agreement Not To Compete. In exchange for the consideration
provided by the Company in this Agreement as well as Executive's
continued employment and exposure to confidential information at
the Company, Executive agrees not to, directly or indirectly, for
a period of two years following Executive's termination of
employment, engage or participate in any business that is involved
in research or development activities or in the manufacturing of
any product which competes with any of the Company's products,
except with the written consent of the Company. On termination,
Executive agrees to execute a separate Release and Non-Competition
Agreement in a form acceptable to the Company to memorialize this
agreement and understands that the failure to do so will render
Executive ineligible for any severance pay, benefits or privileges
whatsoever.
11. Mutual Release and Indemnity. In the event of Executive's
termination under circumstances described in paragraphs 1(a),
1(b). 2(a) or 2(b), the Company agrees to release and discharge
Executive from any claim it may then or thereafter have against
Executive with respect to employment with the Company or any of
its subsidiaries or affiliates (other than with regard to
Executive's obligations under this Agreement), and agrees to
indemnify Executive in accordance with its then current policies
or practices for active employees for any claims made against
Executive by third parties arising out of the proper performance
of Executive's duties as an employee of the Company or any of its
subsidiaries or affiliates. In exchange for the consideration
provided by the Company in this Agreement, together with the
Company's release and indemnity, Executive agrees to release and
discharge the Company, and its subsidiaries, affiliates, officers,
directors, employees and agents (the "Released Persons") from any
claim that Executive may then or thereafter have against the
Company or such Released Persons (excluding any claim for the
compensation, benefits and privileges described herein) arising
out of or in connection with Executive's employment or termination
of employment by the Company or any of its subsidiaries or
affiliates. On termination, Executive agrees to execute a
separate Release and Non-Competition Agreement in a form
acceptable to the Company to memorialize this agreement and
understands that the failure to do so will render Executive
ineligible for any severance pay, benefits or privileges
whatsoever.
12. Severability. Whenever possible each provision and term of
this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or
term of this Agreement shall be held to be prohibited by or
invalid under such applicable law, then such provision or term
shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating or affecting in any manner
whatsoever the remainder of such provision or term, or the
remaining provisions or terms of this Agreement.
13. Modification and Waiver of Breach. No waiver or modification
of this Agreement shall be binding unless it is in writing, signed
by the parties hereto. No waiver of a breach hereof shall be
deemed to constitute a waiver of a further breach, whether of a
similar or dissimilar nature.
14. Assignment. This Agreement shall be binding upon and inure
to the benefit of any successors of the Company. As used herein,
"successors" shall include any person, firm, corporation or other
business entity which at any time, whether by merger, purchase or
otherwise, acquires all or substantially all of the assets or
business of the Company.
15. Notice. Any written notice to be given hereunder to
Executive may be delivered to him personally or shall be deemed to
have been given upon deposit thereof in the U.S. mail, certified
mail, postage prepaid, addressed to Executive at the address as it
shall appear on the records of the Company.
16. Construction of Agreement. This Agreement is made and
entered into in the State of Ohio and shall be construed under the
laws of Ohio.
17. Entire Agreement. This Agreement constitutes the entire
understanding between the parties with respect to Executive's
severance pay, benefits and privileges in the event of a
termination of Executive's employment with the Company,
superseding all negotiations, prior discussions and agreements,
written or oral, concerning said severance arrangements. This
Agreement may not be amended except in writing by the parties
hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
OWENS CORNING,
Glen H. Hiner
Chairman and CEO
Agreed to and accepted:
___________________________
Date: ____________________
Exhibit 10
PERSONAL AND CONFIDENTIAL
December 23, 1997
Ms. Maura Abeln
Via Fax: (413) 442 - 6990
Dear Maura:
It is a pleasure for me to offer to you the position of Senior
Vice President, General Counsel and Secretary of Owens Corning.
The following letter will set forth the specifics of our offer to
you:
1. BASE SALARY
Your annual base salary will be $375,000, subject to regular
review by the Compensation Committee of the Board of Directors
of Owens Corning.
You will also receive a signature bonus of $100,000 (net of
taxes), which will be paid to you upon your first day of
employment with Owens Corning.
2. PLACE OF EMPLOYMENT
Your primary place of employment will be the Owens Corning
World Headquarters located in Toledo, Ohio. However, you may
be required to travel to other locations as directed by Owens
Corning, or as required by your position.
3. ANNUAL INCENTIVE
You will participate in the Owens Corning Annual Corporate
Incentive Compensation Plan (CIP). Annual payouts under the
CIP are presently based on three corporate performance
criteria; earnings per share, cash flow and sales growth, as
well as your individual performance. Your participation in the
CIP will be 100% of your base salary and your target award will
be 50% of base salary. We are guaranteeing a minimum gross
payment of $300,000 for your first two (2) years of employment.
Payment will be made in February of each year when annual
incentive payments are paid. After that period of guarantee,
Corporate business results and your individual performance will
determine actual payments under the CIP. The general terms and
measurements of the CIP will be communicated to you under
separate cover.
4.
EQUITY COMPENSATION
You will be awarded 3,000 shares of restricted stock. These
Restricted Shares will vest assuming continuous employment, 50%
on December 31, 1998 and 50% on December 31, 1999.
You will also be awarded 40,000 options to buy Owens Corning
Stock. The exercise price of these options will be based on
the closing price of Owens Corning stock on February 12, 1998,
the date of our Board Compensation Committee meeting. Vesting
on your options will be 1/3 each year beginning February 12,
1999.
As an officer of Owens Corning, you will be fully eligible to
participate in our Long Term Performance Incentive Plan
(LTPIP). The LTPIP consists of awards of stock options,
restricted stock, and performance restricted stock. The
Details of this plan, and your initial awards thereunder, are
described below.
For the 1998-2000 LTPIP cycle, you will receive the following
awards, with the date of grant as of the Compensation Committee
Meeting which will occur on February 12, 1998:
- 12,000 Stock Options which vest one third each year for three
years. The exercise price of these options will be based on the
closing price of Owens Corning stock on the date the Compensation
Committee approves all grants under the LTPIP, which is expected
to be February 12, 1998.
- 3,500 Shares of Performance Restricted stock. These
Performance shares will vest at the end of three years from the
original grant date based upon the attainment of corporate
objectives under the LTPIP.
- 1,700 Restricted Shares. These Restricted Shares will vest
one-third each year, beginning on December 31, 1998, assuming your
continuous employment with Owens Corning.
As an officer of Owens Corning, you will be subject to a Stock
Ownership requirement of 20,000 shares. You will have five
years to achieve this target.
5. EMPLOYEE BENEFITS
You will have four weeks of annual vacation with Owens Corning.
Upon your commencement of employment, you will be eligible for
Owens Corning's benefit package, which includes a comprehensive
health care plan, Savings and Profit Sharing (401(k)) Plan,
Cash Balance Pension Plan, life insurance plan and both short-
term and long term disability plans.
For purposes of your relocation to Toledo, Ohio, you will be
treated as a transferring employee under the Owens Corning
relocation program, which means we will purchase your home if
you are unable to sell it. More specifics of our relocation
program would be communicated upon acceptance of our offer.
6. OTHER PERQUISITES
You will be eligible for tax preparation/planning assistance,
financial counseling, personal liability insurance and other
benefits provided to Owens Corning officers. You will also be
eligible for personal liability insurance and other benefits
provided to Owens Corning officers. You will also be eligible
for personal usage of the Owens Corning corporate aircraft in
accordance with the Company's policies for similarly situated
officers in effect from time to time.
7. SEVERANCE AGREEMENT
You will also have a severance agreement that provides two full
years of income protection should it become necessary for you
to leave the organization for reasons other than cause or
voluntary resignation.
____________________________
Maura, I am excited about the prospect of you joining the Owens
Corning team. Please let me know if you have any questions, and
return a signed copy of this letter to my attention at the above
address.
Sincerely,
Glen H. Hiner
AGREED TO AND ACCEPTED:
____________________________
Maura Abeln
____________________________
Date
cc: Mr. Gregory Thomson
Exhibit 10
PERSONAL AND CONFIDENTIAL
February 3, 1998
Mr. John Thurston Roach
234 Maiden Lane East
Seattle, WA 98112
Dear Thurston:
It is a pleasure for me to offer to you the position of Senior
Vice President and President, Americas Building Materials Systems
Business of Owens Corning. You will be placed on Owens
Corning's payroll as of February 16, 1998 and are expected to be
in Toledo as of March 2. From February 16 to March 2, you will
be visiting North American Building Material manufacturing
facilities, distribution centers and operating offices. The
following letter will set forth the specifics of our offer to
you:
1. BASE SALARY
Your annual base salary will be $425,000, subject to regular
review by the Compensation Committee of the Board of Directors
of Owens Corning.
You will also receive a signature bonus of $100,000 (gross),
to aid with additional miscellaneous expenses associated with
your acceptance of this job, which will be paid to you upon
your first day of employment with Owens Corning.
2. PLACE OF EMPLOYMENT
Your primary place of employment will be the Owens Corning
World Headquarters located in Toledo, Ohio. However, you may
be required to travel to other locations as directed by Owens
Corning, or as required by your position.
3. ANNUAL INCENTIVE
You will participate in the Owens Corning Annual Corporate
Incentive Compensation Plan (CIP). Your participation in the
CIP will be 110% of your base salary and your target award
will be 55% of base salary. We are guaranteeing a minimum
gross payment of $400,000 for incentive payments earned in
1998 and 1999, assuming a February start date. Payment will
be made in February of each year when annual incentive
payments are paid. After
that period of guarantee, Corporate business results and your
individual performance will determine actual payments under
the CIP. The general terms and measurements of the CIP will
be communicated to you under separate cover.
4. EQUITY COMPENSATION
You will be awarded 50,000 options to buy Owens Corning Stock.
The exercise price of these options will be based on the
closing price of Owens Corning stock on February 16, 1998, the
date of your first day of employment with Owens Corning.
Vesting on your options will be 1/3 each year beginning
February 16, 1999.
As an officer of Owens Corning, you will be fully eligible to
participate in our Long Term Performance Incentive Plan
(LTPIP). The LTPIP consists of awards of stock options,
restricted stock, and performance restricted stock. The
Details of this plan, and your initial awards thereunder, are
described below.
For the 1998-2000 LTPIP cycle, you will receive the following
awards, with the date of approval as of the Compensation
Committee Meeting which will occur on February 12, 1998:
- 18,000 Stock Options which vest one third each year for
three years. The exercise price of these options will be based
on the closing price of Owens Corning stock on your first full
day of employment with Owens Corning.
- 3,000 Restricted Shares. These Restricted Shares will vest
one-third each year, beginning at the end of your third complete
year of continuous employment with Owens Corning.
- 6,000 Shares of Phantom Performance Restricted stock. These
Performance shares will vest at the end of three years from the
original grant date based upon the attainment of corporate
objectives under the LTPIP.
As an officer of Owens Corning, you will be subject to a Stock
Ownership requirement of 20,000 shares. You will have five
years to achieve this target.
5. EMPLOYEE BENEFITS
You will have four weeks of annual vacation with Owens
Corning.
Upon your commencement of employment, you will be eligible for
Owens Corning's benefit package, which includes a
comprehensive health care plan, Savings and Profit Sharing
(401(k)) Plan, Cash Balance Pension Plan, life insurance plan
and both short-term and long term disability plans.
For purposes of your relocation to Toledo, Ohio, you will be
treated as a transferring employee under the Owens Corning
relocation program. I have enclosed a summary of our
Relocation Policy for your review.
6. OTHER PERQUISITES
You will be eligible for tax preparation/planning assistance,
financial counseling, personal liability insurance and other
benefits provided to Owens Corning officers. You will also be
eligible for personal liability insurance and other benefits
provided to Owens Corning officers. You will also be eligible
for personal usage of the Owens Corning corporate aircraft in
accordance with the Company's policies for similarly situated
officers in effect from time to time.
7. SEVERANCE AGREEMENT
You will also have a severance agreement that provides two
full years of income protection should it become necessary for
you to leave the organization for reasons other than cause or
voluntary resignation.
____________________________
Thurston, I am excited about the prospect of you joining the
Owens Corning team. Please let me know if you have any
questions, and return a signed copy of this letter to my
attention via fax at (419) 248-6352.
Sincerely,
Glen H. Hiner
Chairman and CEO
Enclosure
AGREED TO AND ACCEPTED:
____________________________
John Thurston Roach
____________________________
Date
Attachments:
- - Transferring Homeowners Policy Summary
- - Long-Term Performance Incentive Plan Summary
Exhibit 10
November 3, 1998
Mr. Charles H. Dana
xxxxxxxxxxxxxxxxxxx
Perrysburg, OH 43551
RE: RELEASE AND SEPARATION AGREEMENT
Dear Charlie:
In accordance with our discussions concerning your retirement
from Owens Corning (the "Company"), the following summarizes
our agreement (the "Agreement") between yourself and the
Company.
1. TERMINATION OF EMPLOYMENT
Your employment with the Company, its subsidiaries and other
affiliates will terminate when you retire on December 31, 1998
(the "Termination Date"). You will receive your regular base
salary through December 31, 1998. You will be eligible for an
incentive payment under the Corporate Incentive Plan for 1998, as
well as payments under any other annual incentive plan in which
you were a participant during 1998. Payments under all incentive
plans are subject to the attainment of specific Company
performance goals and the discretion of the Chief Executive
Officer. You are not eligible for 1999 incentive participation.
2. SEVERANCE BENEFITS
Consistent with the terms of your amended Key Management
Severance Benefits Agreement dated January 27, 1992 (the
"Severance Agreement"), you will receive an amount equal to
twice your base salary in effect on the Termination Date. This
amount is $730,000. You will also receive a bonus equivalent
equal to the greater of the average of your three previous
years' annual incentive payments, or one-half of your average
annual incentive participating salary for the most recent three
years, whichever is the greater. This amount is $419,333.
These severance payments will be paid in a lump sum on or about
January 15, 1999 and will be subject to applicable withholding
requirements under Federal, state and local law.
3.
HEALTH AND LIFE COVERAGE
In accordance with the terms of your Severance Agreement, you
will continue to receive the same health care coverage (i.e.,
medical, dental, medical flexible spending account and employee
assistance plan) for yourself and your eligible dependents that
is provided to active salaried employees of the Company, at the
same contribution rate applicable to such employees, through
12/31/01. Thereafter you will be eligible to participate in
the same Owens Corning Retiree medical plan as other retirees,
subject to changes in the plan. This period of coverage will
count against any period of COBRA continuation health insurance
coverage to which you may be entitled following the Termination
Date. As such, you will automatically receive a COBRA notice
and election form following the Termination Date, which you may
ignore. You will also have the same life insurance protection
in the amount of $50,000 through 12/31/01. Any change in
active employee programs will also apply to you. The Rewards
and Resources Department in Toledo will be sending information
directly to you as to how your monthly contributions will be
handled. In the event you secure other employment after the
Termination Date, Owens Corning will be the secondary payer
with respect to the benefits described above. You should
contact CIGNA directly to discuss individual payment options
for your Group Universal Life Insurance (1-800-xxxxxxxx).
4. SAVINGS & PROFIT SHARING PLAN
As of October 22, 1998, your total Owens Corning Savings and
Profit Sharing Plan ("SPSP") account balance was $xxxxxxx. Any
contributions made since that date and any change in the market
value of your account will be reflected in your final payment,
which will be made in accordance with the terms of the SPSP.
All Company contributions through the Termination Date will be
vested, but no further contributions may be made to SPSP by you
or the Company after that date. Please note that under the
terms of SPSP, you are not required to receive an immediate
distribution of your account following the Termination Date.
You should contact Fidelity Investments at 1-800-xxxxxxxx.
5. PENSION PLAN
As an employee with vested rights in the Owens Corning Merged
Retirement Plan (the "Pension Plan"), you are entitled to a
benefit under the Plan. The estimated lump-sum present value
of your accrued benefit as of the Termination Date is
$3,975,217. Due to maximums allowed under Pension law, it is
estimated that $2,600,000 of this amount may be paid from the
Company's Executive Supplemental Benefit Plan (the
"Supplemental Plan"). The payment from the Supplemental Plan
will be made on or about January 15, 1999, and is taxable as
ordinary income, and is subject to applicable Federal, state
and local withholding requirements. The payment from the
Supplemental Plan will be offset by amounts already set aside
for you under the Company's Pension Preservation Trust (PPT),
as well as interest payments made to you from the PPT. The
estimated lump sum values shown above are based on the
November, 1998 GATT interest rate of 5.20%. Your pension
amounts will be recalculated using the December, 1998 GATT rate
when it is known, or a later month if you choose to defer
receipt of your retirement benefit. You will accrue no further
benefits under the Pension Plan following the Termination Date.
Payment of your benefits under these plans is governed by the
terms thereof, and not this Agreement.
Please contact Rick Tober of the Rewards and Resources
Department (xxxxxxxx) if you have any questions concerning your
pension benefits.
6. PENSION SUPPLEMENT
As provided in your Severance Agreement, you will receive a
supplemental pension payment in an amount equal to the present
value of the additional benefit that you would have accrued
under the Pension Plan had you been credited with an additional
three years of service and age under the Pension Plan as of the
Termination Date. This will result in an additional payment of
$550,000. Your pension supplement, which will be paid by the
Company in a lump sum on or about January 15, 1999, will be
reduced by applicable withholding requirements under Federal,
state and local law.
7. ADDITIONAL PAYMENTS
You will also receive a lump sum payment equivalent to one year's
base pay and one year's target incentive award, totaling
$565,750. This special payment will be paid on or about January
15, 1999, and will be reduced by applicable withholding
requirements under Federal, state and local law.
Additionally, you will be paid for twenty-five (25 days) of
accrued vacation for 1999 at the rate of $1,404.00 per day,
reduced by applicable withholding requirements under Federal,
state and local law.
Owens Corning will continue to provide you with financial and tax
planning assistance for 1999, with reimbursed expenses for such
purposes up to $7,500, reduced by applicable withholding
requirements under Federal, state and local law.
8. EFFECT ON OTHER EMPLOYEE BENEFITS
Except as provided in this Agreement, you will not be permitted
to participate in any of the Company's employee benefit plans,
programs or arrangements after the Termination Date, including
but not limited to the Corporate Incentive Plan.
9. COMPANY STOCK PLANS
The vesting of Stock Options which are unexercisable at your
Termination Date will be accelerated to that date and your Stock
Option shares will become 100% vested. Subject to applicable
blackout requirements, you will have five (5) years following
your separation date to exercise any vested options, or until the
end of the option term, whichever is earlier.
[Table omitted]
Please call PaineWebber at 1-800-xxxxxxxx, for instructions on
exercising your options and making the required tax payments.
Non-vested Restricted Shares will become vested as of your
Termination Date:
[Table omitted]
You are eligible to receive a payout under Long Term Performance
Incentive Plans for awards made under the 1996 - 1998 cycle, the
1997 - 1999 cycle, and the 1998 - 2000 cycle. Any payout will be
made in February, 1999, February, 2000, and February 2001,
respectively and will be based on Company performance for the
applicable period. Any award under the 1997 - 1999 and the 1998
- - 2000 Long-Term Plan will be prorated based on the number of
months you participated in the Plan. All other awards and non-
prorated portions thereof will be forfeited.
10. OUTSTANDING CHARGES
You are responsible for settling any outstanding charges
against you, such as amounts charged to your corporate American
Express card. If any of your American Express charges are
business expenses, you will process a T&E form as soon as
possible after the Termination Date. Your American Express card
should be turned in as soon as possible after your termination
date.
11. MUTUAL RELEASE AND INDEMNITY
The Company hereby releases and discharges you from any claim
it may now or hereafter have against you with respect to your
employment with the Company or any of its subsidiaries or
affiliates (other than with respect to performance of your
obligations under this Agreement), and agrees to indemnify you
in accordance with its then current policy or practices for
active employees for any claims made against you by third
parties arising out of the proper performance of your duties as
an employee of the Company or any of its subsidiaries or
affiliates.
In consideration of the benefits conveyed to you pursuant to the
terms of this Agreement, together with the Company's release and
indemnity, you hereby fully and forever release and discharge the
Company from any and all claims and actions, of every kind,
nature and description, including by way of illustration and not
limitation, any claim of discrimination, harassment or
discriminatory treatment (including age, race, sex, marital
status, national origin, disability or religious discrimination),
including any claim under the Age Discrimination In Employment
Act as amended, the Older Worker's Benefit Protection Act, breach
of express or implied contract, wrongful or constructive
discharge, interference with contract, breach of public or
corporate policy, practice or procedure, negligence, violation of
ERISA, loss of consortium, loss of pension or other fringe
benefits, fraud, misrepresentation, defamation, libel, slander,
intentional infliction of emotional distress, and/or all other
claims or derivative claims of tortuous conduct, statutory or
constitutional violation, or breach of contract, whether in law
or equity, known or unknown, of every kind, nature and
description, arising out of or in connection with any
relationship, including but not limited to your employment and
termination of employment with the Company, from the beginning of
the world up to the date of the signing of this Agreement. This
Agreement applies to the Company and all subsidiaries,
affiliates, predecessors, successors, related entities, as well
as past, present and future officers, directors, trustees, board
members, employees, attorneys, agents and assigns of the Company.
You understand that the failure to execute and return the
separate Release attached hereto along with this Agreement will
render this Agreement null, void and without effect.
12. CONFIDENTIALITY
You acknowledge that in the course of your employment with the
Company, you acquired confidential and proprietary information
regarding the Company's operations, business and practices and
you understand and agree that you (a) will keep such information
including all the Company files, information, and materials
confidential at all times after your employment with the Company;
(b) will not disclose or communicate the Company information to
any person or persons unless first authorized in writing by the
Company; and (c) will not make use of such information on your
own behalf or on the behalf of any other person, persons or
entities unless you first obtain authorization from the Company
in writing. In view of the nature of your employment and the
nature of the Company's information which you have received and
generated during the course of your employment, you agree that
any unauthorized disclosure to any person or persons of such
Company information, or other violation or threatened violation
of this Agreement would cause irreparable damage to the Company,
and that, therefore, the Company shall be entitled to seek an
appropriate injunction and legal remedies in a court of
appropriate jurisdiction.
13. AGREEMENT NOT TO COMPETE
You agree that during the term of your employment and for a
period of two years thereafter, you will not, directly or
indirectly, engage in, be engaged by (including engagement for
consulting or advising), provide services for or have any
interest in, any other person, firm, corporation or entity which
conducts any activity or makes any product competitive with the
business of the Company (including without limitation research or
development activities in any way relating to products which may
compete with current or developmental products of the Company);
provided however, that nothing contained herein shall restrict
you from owning 1% or less of the corporate securities of any
competitor of the Company where these securities are listed on
any national securities exchange or traded actively in the
national over-the-counter market, if you have no other connection
or relationship with the issuer of such securities.
You recognize the broad scope of the foregoing covenants, but
expressly agree that they are reasonable in light of the world-
wide scope of the business conducted by the Company. If any
court or tribunal of competent jurisdiction shall refuse to
enforce the foregoing covenants because the time limit applicable
thereto is deemed unreasonable, it is expressly understood and
agreed that such covenants shall not be void, but that for the
purpose of such proceedings and in such jurisdictions such time
limitation shall be deemed to be reduced to the extent necessary
to permit enforcement of the covenants. If any court or tribunal
of competent jurisdiction shall refuse to enforce any or all of
the foregoing covenants because they are more extensive (whether
as to geography, the scope of business or otherwise) than is
deemed reasonable, it is expressly understood and agreed between
the parties hereto that such covenants shall not be void, but
that for the purpose of such proceedings and in such
jurisdictions, the restrictions contained herein (whether as to
geography, the scope of business or otherwise) shall be deemed to
be reduced to the extent necessary to permit enforcement of the
covenants.
14. BUSINESS CONDUCT POLICY
You acknowledge that you are familiar with the terms of
the Owens Corning Employee Business Conduct Policy and its
Related Corporate Policies (including any laws applicable to
the Company's activities) (collectively, the "Policies"), and
that the terms of such Policies have been reviewed with you by
a representative of the Company in connection with your
termination of employment, and that, except as disclosed in
writing to the undersigned prior to the date of your
termination, you are not aware of any situation that might be
viewed as a possible violation of the Policies. You understand
that you will not suffer any form of retribution by the Company
for reporting potential violations.
15. MISCELLANEOUS
Except to the extent that your rights to the payments and
benefits described herein are governed by the terms of the
Company's employee benefit plans, programs or arrangements, or
by an agreement issued in accordance with the terms of such a
plan, program or arrangement, or by the Severance Agreement,
this Agreement embodies the entire agreement and understanding
between you and the Company and supersedes all prior
understandings between you and the Company relating to your
employment by, and termination from, the Company. Neither this
Agreement nor any term hereof may be changed, waived or
terminated except by an instrument in writing signed by both
parties hereto. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Ohio.
If the foregoing is entirely satisfactory to you, please sign
both the attached Waiver and Release and one copy of this
letter in the place provided for your signature, and return
them to me. As described in the Waiver and Release, this
Agreement will become effective seven (7) days after your sign
it, unless you should choose to revoke this Agreement within
this seven (7) day period.
Sincerely,
OWENS CORNING
_______________________________
Glen H. Hiner
Chairman and Chief Executive Officer
ACCEPTED AND AGREED TO:
_________________________
Charles H. Dana
Date:____________________