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Exhibit 10.9(e)
AMENDMENT NUMBER FOUR
TO THE
ANNUAL PERFORMANCE INCENTIVE PLAN
WHEREAS, Millennium Chemicals Inc. (the "Company") maintains the
Millennium Chemicals Inc. Annual Performance Incentive Plan, effective as of
October 1, 1996 (the "Plan");
WHEREAS, pursuant to Section 10 of the Plan, the Board of Directors of
the Company (the "Board desires to amend the Plan; and
NOW, THEREFORE, effective as of June 1, 2002, the Plan is amended as
follows:
1. The definition of "Change in Control" in Exhibit A to the Plan is
amended in its entirety as follows:
EXHIBIT A
CHANGE IN CONTROL
The Plan will terminate effective on the close of business 30 days
following a Change in Control, as hereinafter defined. Upon such
Change in Control, section 12.1 shall become inoperative and, in
addition, any modification or amendment adopted within six months
prior to the Change in Control shall be void with respect to any
specific Participant affected thereby unless approved by such
Participant. Upon such termination, each Participant (including each
Participant whose employment was terminated within six months prior to
such Change in Control by the Employer without Cause, or due to
disability, or voluntarily for good reason as determined by the
Committee and each Participant that has experienced a Change of
Control pursuant to a separate written "Change in Control" agreement
with the Company or the Employer) will be deemed retired pursuant to
Section 5.1 based on Benefit Service through the termination date. A
lump sum amount that is the actuarial equivalent of each Participant's
benefit payable under this Plan shall be calculated using the prime
rate of interest at Citigroup, Inc. as of the date of the Change in
Control or 6%, whichever is less, as the discount rate to determine
the present value of accrued benefits, shall be paid as soon as
practicable following the date of the Change in Control, but in no
event later than 90 days thereafter. All other actuarial assumptions
and calculation methods to be used shall be those in effect as at the
last actuarial valuation of the Qualified Plan and based on the
Qualified Plan document prior to such Change in Control.
For the purposes of this Plan, the term "Change in Control" shall mean
(i) any "person" as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934 ("Act") (other than the Company,
any trustee or other
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fiduciary holding securities under any employee benefit plan of the
Company or any company owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as
their ownership of Common Stock of the Company), becoming the
"beneficial owner" (as defined in Rule 13d-3 under the Act), directly
or indirectly, of securities of the Company representing twenty-five
percent (25%) or more of the combined voting power of the Company's
then outstanding securities; (ii) during any period of two consecutive
years (not including any period prior to October 1, 1996), individuals
who at the beginning of such period constitute the Board of Directors
of the Company, and any new director (other than a director designated
by a person who has entered into an agreement with the Company to
effect a transaction described in clause (i), (iii), or (iv) of this
paragraph or a director whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a person other than the Board of Directors of the
Company) whose election by the Board of Directors or nomination for
election by the Company's stockholders was approved by a vote of at
least two-thirds of the directors then still in office who either were
directors at the beginning of the two-year period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute at least a majority of the Board of Directors;
(iii) the merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which 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 fifty percent (50%) of the combined voting power of the voting
securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation; provided, however,
that a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no
person (other than those covered by the exceptions in (i) above)
acquires more than twenty-five percent (25%) of the combined voting
power of the Company's then outstanding securities shall not
constitute a Change in Control or (iv) the stockholders of the Company
approve a plan of complete liquidation of the Company or the closing
of the sale or disposition by the Company of all or substantially all
of the Company's assets other than the sale or disposition of all or
substantially all of the assets of the Company to one or more
Subsidiaries (as defined below) of the Company or to a person or
persons who beneficially own, directly or indirectly, at least fifty
percent (50%) or more of the combined voting power of the outstanding
voting securities of the Company at the time of the sale or
disposition; provided, however, (y) the sale or disposition of all or
any part of the Company's interests in Equistar (and all subsequent
sales and dispositions of any securities or assets received as
proceeds thereof, or as proceeds of proceeds) shall not be deemed to
constitute a Change in Control, and (z) if the Company's sells or
disposes of all or any part of the Company's interests in Equistar
indirectly (either through the sale or other disposition of any entity
that owns, directly or indirectly, all or any part of the Company's
interests in Equistar, or otherwise), then the sale or disposition of
the Company's interests in Equistar (and all subsequent sales and
dispositions of any securities or assets received as proceeds thereof,
or as proceeds of proceeds) shall be ignored and disregarded in
determining whether any such Change in Control has
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occurred. By way of illustration, if an indirect subsidiary of the
Company that owns the Company's interests in Equistar together with
certain other assets is sold, then, in determining whether a Change in
Control has occurred, all relevant determinations shall be made
pursuant to the assumption that (y) such subsidiary owns only such
other assets, and (z) neither such subsidiary nor the Company owns,
either directly or indirectly, the interests in Equistar. "Subsidiary"
shall have the meaning set forth in Section 424 of the Code and the
term shall also include any partnership, limited liability company or
other business entity if the Company owns directly or indirectly,
securities or other ownership interests representing at least fifty
percent (50%) of the ordinary voting power or equity or capital
interests of such entity. Only one (1) Change in Control may take
place under this Plan.
2. In all other respects, the Plan is hereby ratified and confirmed.
IN WITNESS WHEREOF, this amendment has been executed this ______ day
of November 2002.
MILLENNIUM CHEMICALS INC.
By:
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C. William Carmean
Senior Vice President
General Counsel and Secretary