EXHIBIT 10.21.1
July 21, 1992
Mr. R. Van Mynen
P2-607
Dear Ron:
The Board of Directors (the "Board") of Union Carbide
Corporation (the "Corporation") recognizes that the possibility of
a change in control of the Corporation exists, as is the case with
many publicly held corporations, and the uncertainty and questions
which it may raise among management may result in the departure or
distraction of management personnel to the detriment of the
Corporation and its stockholders.
The Board has determined that appropriate steps should be
taken to reinforce and encourage the continued attention and
dedication of members of the Corporation's management, including
yourself, to their assigned duties without distraction in the face
of potentially disturbing circumstances arising from a possible
change in control of the Corporation. The Board has also
determined that it is in the best interests of the Corporation and
its stockholders to ensure your continued availability to the
Corporation in the event of a potential change in control of the
Corporation.
In order to induce you to remain in the employ of the
Corporation and in consideration of your agreement set forth in
Paragraph 2 hereof, the Corporation agrees that you shall receive
the severance benefits set forth in this letter agreement
("Agreement") in the event your employment with the Corporation is
terminated subsequent to a change in control under the
circumstances described below.
1. Definitions.
a. "Change in Control" of the Corporation shall be deemed to
occur if any of the following circumstances shall occur:
(i) if a change in control of the Corporation would be
required to be reported in response to Item 1(a) of the
Current Report on Form 8-K, as in effect on the date hereof,
pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Act"), whether or not the
Corporation is then subject to such reporting requirement;
(ii) there shall be consummated (x) any consolidation
or merger of the Corporation in which the Corporation is not
the continuing or surviving corporation or pursuant to which
shares of the Corporation's Common Stock would be converted
into cash, securities or other property, other than a merger
of the Corporation in which the holders of the Corporation's
Common Stock immediately prior to the merger have the same
proportion and ownership of common stock of the surviving
corporation immediately after the merger, or (y) any sale,
lease, exchange or other transfer (in one transaction or a
series of related transactions) of all, or substantially all,
of the assets of the Corporation, provided, that the
divestiture of less than substantially all of the assets of
the Corporation in one transaction or a series of related
transactions, whether effected by sale, lease, exchange,
spin-off, sale of the stock or merger of a subsidiary or
otherwise, shall not constitute a Change in Control;
(iii) any "person" or "group" within the meaning of
Sections 13(d) and 14(d)(2) of the Act (x) becomes the
"beneficial owner" as defined in Rule 13d-3 under the Act of
more than 20% of the then outstanding voting securities of
the Corporation, otherwise than through a transaction or
transactions arranged by, or consummated with the prior
approval of, the Board, or (y) acquires by proxy or otherwise
the right to vote for the election of directors, for any
merger or consolidation of the Corporation or for any other
matter or question more than 20% of the then outstanding
voting securities of the Corporation, otherwise than through
an arrangement or arrangements consummated with the prior
approval of the Board;
(iv) if during any period of twenty-four consecutive
months (not including any period prior to the date of this
Agreement), Present Directors and/or New Directors cease for
any reason to constitute a majority of the Board. For
purposes of the preceding sentence, "Present Directors" shall
mean individuals who at the beginning of such consecutive
twenty-four month period were members of the Board and "New
Directors" shall mean any director whose election by the
Board or whose nomination for election by the Corporation's
stockholders was approved by a vote of at least two-thirds of
the Directors then still in office who were Present Directors
or New Directors.
b. "Date of Termination" shall mean:
(i) in case employment is terminated for Total
Disability, thirty (30) days after Notice of Termination is
given (provided that you shall not have returned to the full-
time performance of your duties during such thirty (30) day
period), and
(ii) in all other cases, the date specified in the
Notice of Termination (which shall not be less than thirty
(30) nor more than sixty (60) days, respectively, from the
date such Notice of Termination is given),
(iii) provided that if within thirty (30) days after any
Notice of Termination is given, the party receiving the
Notice advises the other party that a dispute exists
concerning the termination, the Date of Termination shall be
the date on which the dispute is finally resolved, either by
mutual written agreement of the parties, or by a final
judgment, order or decree of a court of competent
jurisdiction (which is not appealable or the time for appeal
therefrom having expired and no appeal having been
perfected); provided further that the Date of Termination
shall be extended by a notice of dispute only if such notice
is given in good faith and the party giving such notice
pursues the resolution of such dispute with reasonable
diligence.
c. "Total Disability" shall mean total and permanent
physical or mental disability to perform any work for compensation
in any occupation or position. Any question as to the existence of
your Total Disability upon which you and the Corporation cannot
agree shall be determined by a qualified physician not employed by
the Corporation and selected by you (or, if you are unable to make
such selection, it shall be made by any adult member of your
immediate family), and approved by the Corporation. The
determination of such physician made in writing to the Corporation
and to you shall be final and conclusive for all purposes of this
Agreement.
d. "Good Reason for Resignation" shall mean, without your
express written consent, any of the following:
(i) a change in your status or position with the
Corporation which in your reasonable judgment does not
represent a promotion from your status or position
immediately prior to the Change in Control, or the assignment
to you of any duties or responsibilities which in your
reasonable judgment are inconsistent with your status as an
employee of the Corporation in effect immediately prior to
the Change in Control, it being understood that any of the
foregoing in connection with termination of your employment
for Cause, Retirement, or Total Disability shall not
constitute Good Reason for Resignation;
(ii) a reduction by the Corporation in the annual rate
of your base salary as in effect immediately prior to the
date of a Change of Control or as the same may be increased
from time to time thereafter, or the Corporation's failure to
increase the annual rate of your base salary in an amount at
least equal to the average percentage increase in base salary
for all officers of the Corporation in the preceding 12
months;
(iii) the relocation of the Corporation's principal
executive offices to a location more than thirty-five miles
from Danbury, Connecticut or the Corporation's requiring you
to be based anywhere other than the Corporation's principal
executive offices (or, if you were not based at the
Corporation's principal executive offices immediately prior
to a Change in Control, the Corporation's requiring you to be
based anywhere other than where your office is located
immediately prior to such Change in Control) except for
required travel on the Corporation's business to an extent
substantially consistent with your business travel
obligations immediately prior to a Change in Control;
(iv) the failure by the Corporation to continue in
effect any compensation plan in which you participate as in
effect immediately prior to the Change in Control, including
but not limited to the Retirement Program, the Savings
Program and the Incentive Compensation Plans, or any
substitute plans adopted prior to the Change in Control,
unless an arrangement satisfactory to you (embodied in an
ongoing substitute or alternative plan) has been made with
respect to such plan, or the failure by the Corporation to
continue your participation therein on at least as favorable
a basis, both in terms of the amount of benefits provided and
the level of your participation relative to other
participants, as existed immediately prior to the Change in
Control;
(v) the failure by the Corporation to continue to
provide you with benefits at least as favorable as those
enjoyed by you under any of the Corporation's pre-retirement
and post-retirement life insurance, medical, health and
accident, and disability plans or any other plan, program or
policy of the Corporation intended to benefit employees in
which you were participating immediately prior to the Change
in Control, the taking of any action by the Corporation which
would directly or indirectly materially reduce any of such
benefits or deprive you of any material fringe benefit
enjoyed by you immediately prior to the Change in Control, or
the failure by the Corporation to provide you with the number
of annual paid vacation days to which you were annually
entitled immediately prior to the Change in Control;
(vi) the failure of the Corporation to obtain a
satisfactory agreement from any Successor (as defined in
Paragraph 5a hereof) to assume and agree to perform this
Agreement, as contemplated in Paragraph 5a hereof; or
(vii) any purported termination of your employment which
is not effected pursuant to a Notice of Termination
satisfying the requirements hereof; for purposes of this
Agreement, no such purported termination shall be effective
for any purpose except to constitute a Good Reason for
Resignation.
e. "Incentive Compensation Plans" shall mean:
(i) the 1989 Bonus Plan
(ii) the 1988 Long-Term Incentive Plan
(iii) the 1984 UCC Cash Bonus Plan
(iv) the 1983 UCC Bonus Deferral Program
(v) the 1984 UCC Bonus Deferral Plan
(vi) the 1984 UCC Stock Option Plan
(vii) the 1979 UCC Incentive Compensation Plan, and
(viii) dividend equivalents under the 1959 UCC Incentive
Plan
f. "Potential Change in Control of the Corporation" shall be
deemed to have occurred if:
(i) the Corporation enters into an agreement, the
consummation of which would result in the occurrence of a
Change in Control;
(ii) any person (including any individual, corporation,
partnership, group, association or other "person", as such
term is used in Section 14(d) of the Act, including the
Corporation) publicly announces an intention to take actions
which if consummated would constitute a Change in Control;
(iii) any person as defined above becomes the beneficial
owner, directly or indirectly, of securities of the
Corporation representing 9.5 percent or more of the combined
voting power of the Corporation's then outstanding
securities; or
(iv) the Board adopts a resolution to the effect that,
for purposes of this Agreement, a Potential Change in Control
of the Corporation has occurred.
g. "Notice of Termination" shall mean a written notice as
provided in Paragraph 9 hereof.
h. "Retirement" shall mean (1) voluntary retirement before
your mandatory retirement age with an immediate, nonactuarially-
reduced pension under the Corporation's Retirement Program
(termination of your employment by you before your mandatory
retirement age with Good Reason for Resignation shall not be
deemed a Retirement for purposes of this Agreement even though you
are eligible for and elect to receive an immediate,
nonactuarially-reduced pension under the Corporation's Retirement
Program) or (2) termination in accordance with any retirement
arrangement other than under the Corporation's Retirement Program,
which is established with your consent with respect to you or (3)
mandatory retirement under the Corporation's Retirement Program.
i. "Retirement Program" shall mean:
(i) the Retirement Program Plan for Employees of Union
Carbide Corporation and its Participating Subsidiaries;
(ii) the Equalization Benefit Plan for Participants of
The Retirement Program Plan; and
(iii) the Supplemental Retirement Income Plan.
j. "Savings Program" shall mean:
(i) the Savings Plan for Employees of Union Carbide
Corporation and Participating Subsidiary Companies; and
(ii) the 401(k) Opportunity Plan for Salaried Employees
of Union Carbide Corporation.
k. "Termination for Cause" shall mean termination of your
employment upon:
(i) your willful and continued failure to substantially
perform your duties with the Corporation (other than any such
failure resulting from your Total Disability or any such
actual or anticipated failure resulting from your resignation
with Good Reason for Resignation) after a written demand for
substantial performance is delivered to you by the Board,
which demand specifically identifies the manner in which the
Board believes that you have not substantially performed your
duties, or
(ii) your willfully engaging in conduct demonstrably
and materially injurious to the Corporation, monetarily or
otherwise,
but only so long as there shall have been delivered to you a copy
of a resolution duly adopted by the affirmative vote of not less
than three-quarters (3/4) of the entire membership of the Board at
a meeting of the Board called and held for such purpose (after
reasonable notice to you and an opportunity for you, together with
your counsel, to be heard before the Board), finding that in the
good faith opinion of the Board you were guilty of conduct set
forth and specifying the particulars thereof in detail.
For purposes of this Paragraph 1k, no act, or failure to act, on
your part shall be deemed "willful" unless done, or omitted to be
done, by you not in good faith and without reasonable belief that
your action or omission was in the best interest of the
Corporation. Any act or failure to act based upon authority given
pursuant to a resolution duly adopted by the Board or based upon
the advice of counsel for the Corporation shall be conclusively
presumed to be done or omitted to be done by you in good faith and
in the best interests of the Corporation.
2. Agreement to Remain Employed. You agree that, subject to the
terms and conditions of this Agreement, you will remain in the
employ of the Corporation and continue to render the services
contemplated in the recitals to this Agreement (except for Total
Disability or Retirement or resignation with Good Reason for
Resignation) for a period of six (6) months from the date of this
Agreement. If a Potential Change in Control of the Corporation
occurs during the term of this Agreement, you will remain in the
employ of the Corporation and continue to render such services for
a period of six (6) months after the occurrence of each such
Potential Change in Control of the Corporation occurring prior to
the occurrence of a Change in Control.
3. Compensation Upon Termination or While Disabled. Following a
Change in Control of the Corporation you shall be entitled to the
following benefits:
a. Termination Other Than for Cause, Retirement, Death or
Total Disability; Termination By Your Resignation with Good Reason
for Resignation. If your employment by the Corporation shall be
terminated subsequent to the Change in Control and during the term
of this Agreement (a) by the Corporation other than for Cause,
Retirement, Death or Disability or (b) by you for Good Reason for
Resignation, then you shall be entitled to the benefits provided
below, without regard to any contrary provision of any plan:
(i) Accrued Salary. The Corporation shall pay you, in a
lump sum in cash, not later than the fifth day following the
Date of Termination your full base salary and vacation pay
accrued through the Date of Termination at the rate in effect
at the time the Notice of Termination is given (or at the
rate in effect immediately prior to a Change in Control, if
such amounts were higher).
(ii) Accrued Incentive Compensation. If the Date of
Termination is after a Bonus Year, but before Incentive
Compensation for said Bonus Year has been paid, the
Corporation shall pay you as Incentive Compensation for that
Bonus Year, the greater of (x) the amount of Incentive
Compensation awarded or determined to be awarded to you by
the Board for that Bonus Year, or (y) an amount that bears
the same ratio to your total base salary in said Bonus Year
as the total of all Incentive Compensation paid to
participants in the Incentive Compensation Program for said
Bonus Year bears to the total of all base salaries paid to
said participants in said Bonus Year, such payment to you to
be made at the same time the Corporation pays Incentive
Compensation for said Bonus Year under the applicable
Incentive Compensation Program. In addition, if the Date of
Termination is other than the first day of a Bonus Year, the
Corporation shall pay you, as Incentive Compensation for the
Bonus Year in which the Date of Termination occurs, the
greater of (x) the amount of incentive compensation awarded
or determined to be awarded to you by the Board for that
Bonus Year, or (y) an amount that bears the same ratio to
your total base salary in said Bonus Year as the total of all
Incentive Compensation paid to participants in the Incentive
Program for said Bonus Year bears to the total of all base
salaries paid to said participants in said Bonus Year, such
payment to you to be made at the same time the Corporation
pays Incentive Compensation for said Bonus Year under the
applicable Incentive Compensation Program. If there is more
than one Incentive Compensation Program, your accrued
Incentive Compensation under each Program shall be determined
individually for that Program. For the purpose of this
Paragraph 3(a)(ii), "Incentive Compensation Program" means
any of the Incentive Compensation Plans defined in Paragraph
1e and any other plan or program for the payment of
incentive compensation, bonus, benefits or awards for which
you were, or your position was, eligible to participate;
"Incentive Compensation" means any compensation, bonus,
benefit or award paid or payable under an Incentive
Compensation Program; "Bonus Year" means a calendar year of
an Incentive Compensation Program, and "Board" means the
Board of Directors of the Corporation, any committee of the
Board of Directors or any person or group designated by the
Board of Directors to determine the amount of Incentive
Compensation payable under an Incentive Compensation Program.
(iii) Insurance Coverage. The Corporation shall
arrange to provide you with life, disability, accident and
health insurance benefits substantially similar to those
which you are receiving or entitled to receive immediately
prior to the Change in Control of the Corporation. Such
insurance benefits shall be provided to you for the longer of
(x) twenty-four (24) months after such Date of Termination or
(y) the period during which such insurance benefits would
have been provided to you under the applicable life
insurance, medical, health and accident and disability
insurance plans of the Corporation in effect immediately
prior to the Change in Control of the Corporation.
(iv) Retirement Benefits. The Corporation shall pay you,
at the time you are entitled to be paid a retirement pension
under the Retirement Program, a retirement pension equal to
the greater of (x) an amount computed in accordance with the
terms of the Retirement Program in effect immediately prior
to the Change in Control of the Corporation and as if those
terms were in effect on the Date of Termination, or (y) an
amount computed in accordance with the terms of the
Retirement Program in effect immediately prior to the Date of
Termination, in either case less the amount of retirement
pension actually to be paid to you under the Retirement
Program. In computing the amounts of your retirement pension
under clauses (x) and (y) of this Paragraph 3a(iv), to the
extent such benefits are payable under the tax qualified
Retirement Program Plan for Employees of Union Carbide
Corporation and its Participating Subsidiaries, three years
shall be added to your actual age and to your actual Company
Service Credit under the Retirement Program Plan for
Employees of Union Carbide Corporation and its Participating
Subsidiaries so that your retirement pension under clauses
(x) and (y) will be the amount it would have been if you had
been three years older than you actually were, and had three
years more Company Service Credit than you actually had, on
the Date of Termination.
(v) Severance Payment. The Corporation shall pay as
severance pay to you, not later than the fifth day following
the Date of Termination, a lump sum severance payment (the
"Severance Payment") equal to 2.99 times the average of the
annual compensation which was payable to you by the
Corporation (or any corporation affiliated with the
Corporation within the meaning of section 1504 of the
Internal Revenue Code of 1954, as amended ("Code")) and
includible in your gross income for Federal income tax
purposes for the five calendar years (the "Base Period")
preceding the calendar year in which a Change in Control of
the Corporation occurred. The Severance Payment shall be
reduced pursuant to Paragraph 3a(vi) hereof to the extent the
Corporation could not properly deduct amounts paid pursuant
to Paragraph 3a(i) through 3a(iv) hereof or otherwise
pursuant to section 280G of the Code. For purposes hereunder,
the average annual compensation shall be determined in
accordance with proposed, temporary or final regulations
promulgated under section 280G(d) of the Code. Compensation
payable to you by the Corporation (or an affiliate) shall
include every type and form of compensation includible in
your gross income in respect of your employment by the
Corporation (or an affiliate), including but not limited to
compensation income recognized as a result of your exercise
of stock options or sale of the stock so acquired, bonuses,
dividend equivalents, fringe benefits, relocation payments,
and stock appreciation rights, except to the extent otherwise
provided in proposed, temporary or final regulations
promulgated under section 280G(d) of the Code. For purposes
of Paragraphs 3a(v) and 3a(vi) only, a "Change in control of
the Corporation" shall have the meaning set forth in section
280G(d) of the Code and any proposed, temporary or final
regulations promulgated thereunder.
(vi) Reduction in Severance Payment. The Severance
Payment shall be reduced but not below zero by the amount of
any other payment or the value of any benefit received or to
be received by you contingent upon a Change in Control of the
Corporation (whether payable pursuant to the terms of this
Agreement, any other plan, agreement or arrangement with the
Corporation or an affiliate) unless (1) you shall have
effectively waived your receipt or enjoyment of such payment
or benefit prior to the date of payment of the Severance
Payment, or (2) in the opinion of Messrs. Kelley Drye &
Warren, which shall be binding upon the Corporation and upon
you, such other payment or benefit plus the Severance Payment
(in its full amount or as partially reduced hereunder, as the
case may be) would be properly deductible by the Corporation
without restriction pursuant to Code section 280G. The value
of any non-cash benefit or any deferred cash payment shall
promptly be determined by the Corporation's independent
auditors in accordance with the principles of sections
280G(d)(3) and (4) of the Code.
(vii) Repayment of excess payment. If it is established
pursuant to a final determination of a court or an Internal
Revenue Service proceeding that, notwithstanding the good
faith of you and the Corporation in applying the terms of
this Paragraph 3a, the aggregate payments hereunder to or for
your benefit would result in any portion of such payments not
being deductible by the Corporation or its affiliates by
reason of section 280G of the Code, then you agree to pay the
Corporation upon demand an amount equal to the sum of (1) the
excess of the aggregate payments hereunder paid to or for
your benefit over the aggregate payments hereunder that would
have been paid to or for your benefit without any portion of
such payments not being deductible by reason of section 280G
of the Code; and (2) interest on the amount set forth in
clause (1) of this sentence at the applicable Federal rate
(as defined in section 1274(d) of the Code) from the date of
your receipt of such excess until the date of such payment.
No amount shall be payable by you hereunder if and to the
extent that in the opinion of Messrs. Kelley Drye & Warren
such repayment would not reduce the amount of payments to you
which are considered nondeductible by the Corporation
pursuant to Code section 280G.
(viii) No duty to mitigate. You shall not be required to
mitigate the amount of any payment provided for in this
Paragraph 3 by seeking other employment or otherwise, nor
shall the amount of any payment or benefit as provided for be
reduced by any compensation earned by you as the result of
employment by another employer or by retirement benefits
after the Date of Termination, or otherwise except as
specifically provided herein.
b. Payments While Disabled. During any period prior to the
Date of Termination and during the term of this Agreement that you
are unable to perform your full-time duties with the Corporation,
whether as a result of your Total Disability or as a result of a
physical or mental disability that is not total or is not
permanent and therefore is not a Total Disability, you shall
continue to receive your base salary at the rate in effect at the
commencement of any such period, together with all other
compensation and benefits that are payable under the Corporation's
disability benefit plans. After the Date of Termination, your
benefits shall be determined in accordance with the Corporation's
Retirement Program, insurance and other applicable programs. The
compensation and benefits, other than salary, payable pursuant to
this Paragraph 3b shall be the greater of (x) the amounts computed
under the Retirement Program, disability benefit plans, insurance
and other applicable programs in effect immediately prior to a
Change in Control of the Corporation, and (y) the amounts computed
under the Retirement Program, disability benefit plans, insurance
and other applicable programs in effect at the time the
compensation and benefits are paid.
c. Payments if Terminated for Cause, or by You Except With
Good Reason. If your employment shall be terminated by the
Corporation for Cause or by you other than with Good Reason for
Resignation, the Corporation shall pay you your full base salary
then in effect through the Date of Termination, at the rate in
effect at the time Notice of Termination is given plus any
benefits or awards which have been earned or become payable but
which have not yet been paid to you. Thereafter the Corporation
shall have no further obligation to you under this Agreement.
d. After Retirement or Death. If your employment shall be
terminated by your Retirement, or by reason of your death, your
benefits shall be determined in accordance with the Corporation's
retirement and insurance programs then in effect.
4. Term of Agreement. This Agreement shall commence on the date
hereof and shall continue in effect through December 31, 1992;
provided, however, that commencing on January 1, 1993 and each
January 1 thereafter, the term of this Agreement shall
automatically be extended for one additional year unless, not
later than September 30 of the preceding year, the Corporation or
you shall have given notice that it or you do not wish to extend
this Agreement; provided, further, that notwithstanding any such
notice by the Corporation or you not to extend, if a Change in
Control shall have occurred during the original or extended term
of this Agreement, this Agreement shall continue in effect for a
period of twenty-four (24) months beyond the term in effect
immediately before such Change in Control. This Agreement shall
terminate if your employment is terminated by you or the
Corporation prior to a Change in Control.
5. Successors; Binding Agreement.
a. Successors of the Corporation. The Corporation will
require any Successor to all or substantially all of the business
and/or assets of the Corporation to expressly assume and agree, by
an agreement in form and substance satisfactory to you, to perform
this Agreement in the same manner and to the same extent that the
Corporation would be required to perform it if no such succession
had taken place. Failure of the Corporation to obtain such assent
at least five business days prior to the time a person becomes a
Successor (or where the Corporation does not have at least five
business days advance notice that a person may become a Successor,
within three business days after having notice that such person
may become or has become a Successor) shall constitute Good Reason
for Resignation by you and, if a Change in Control of the
Corporation has occurred or thereafter occurs, shall entitle you
immediately to the benefits provided in Paragraph 3a hereof upon
delivery by you of a Notice of Termination which the Corporation,
by executing this Agreement hereby assents to. For purposes of
this Agreement, "Successor" shall mean any person that obtains or
succeeds to, or has the practical ability to control (either
immediately or with the passage of time), the Corporation's
business directly, by merger or consolidation, or indirectly, by
purchase of voting securities of the Corporation, by acquisition
of rights to vote voting securities of the Corporation or
otherwise, including but not limited to any person or group that
acquires the beneficial ownership or voting rights described in
Paragraph 1a(iii) and any person or group required to be
identified in a Current Report on Form 8-K described in Paragraph
1a(i).
b. Your Successor. This Agreement shall inure to the
benefit of and be enforceable by your personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If you should die while any
amount would still be payable to you hereunder if you had
continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this
Agreement to your devisee, legatee or other designee or, if there
is no such designee, to your estate.
6. Relationship to Other Agreements. To the extent that any
provision of any other agreement between the Corporation or any of
its subsidiaries and you shall limit, qualify or be inconsistent
with any provision of this Agreement, then for purposes of this
Agreement, while the same shall remain in force, the provision of
this Agreement shall control and such provision of such other
agreement shall be deemed to have been superseded, and to be of no
force or effect, as if such other agreement had been formally
amended to the extent necessary to accomplish such purpose.
7. Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which
shall remain in full force and effect.
8. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but
all of which together will constitute one and the same instrument.
9. Notice. Any purported termination by the Corporation or by
you following a Change in Control shall be communicated to the
other party by a Notice of Termination. A Notice of Termination
shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination
of your employment under the provision so indicated. For the
purpose of this Agreement, notices and all other communications
provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United
States registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the first page
of this Agreement, provided that all notices to the Corporation
shall be directed to the attention of the Board with a copy to the
Secretary of the Corporation, or to such other address as either
party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be
effective only upon receipt.
10. Fees and Expenses. The Corporation shall pay all legal fees
and related expenses incurred by you as a result of your
termination following a Change in Control or by you in seeking to
obtain or enforce any right or benefit provided by this Agreement
(including all fees and expenses, if any, incurred in contesting
or disputing any such termination or incurred by you in seeking
advice in connection therewith).
11. Survival. The respective obligations of, and benefits
afforded to, the Corporation and you as provided in Paragraphs 3,
5, 6 and 10 of this Agreement shall survive termination of this
Agreement.
12. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing and signed by you and such
officer as may be specifically designated by the Board. No waiver
by either party hereto at any time of any breach by the other
party hereto of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement. The
validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of New York.
If this letter sets forth our agreement on the subject matter
hereof, kindly sign and return to the Corporation the enclosed
copy of this letter which will then constitute our agreement on
this subject.
Sincerely,
UNION CARBIDE CORPORATION
Robert D. Kennedy
Chairman of the Board and
Chief Executive Officer
Agreed to this 12th day
of August, 1992