Ex 10.2
THE GENERAL CHEMICAL GROUP INC.
LONG TERM INCENTIVE PROGRAM
EFFECTIVE JANUARY 1, 2002
Table of Contents
Section Page
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Section 1 Introduction.................................................. 1
Section 2 Definitions................................................... 1
2.1 Definitions............................................... 1
2.2 Gender and Number......................................... 3
Section 3 Eligibility and Participation - Non-Compete................... 3
Section 4 Units Subject to Plan and Grants.............................. 4
Section 5 Establishment of Award Pools.................................. 4
5.1 Award Pool................................................ 4
5.2 Interest.................................................. 5
Section 6 Participation in and Distribution of Award Pools.............. 5
6.1 Participation in Award Pools.............................. 5
6.2 Distribution of Award Pools............................... 5
6.3 Value of Award Payments................................... 6
6.4 Accelerated Vesting and Payment Following a Change
In Control................................................ 6
6.5 Time of Payment........................................... 7
6.6 Forfeitures............................................... 7
Section 7 Plan Administration........................................... 7
7.1 Powers of the Board....................................... 7
7.2 Records and Reports....................................... 8
Section 8 Amendment and Modification of Plan............................ 8
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Section 9 Miscellaneous Provisions...................................... 8
9.1 Nontransferability of Awards.............................. 8
9.2 No Guarantee of Employment or Participation............... 8
9.3 Tax Withholding........................................... 9
9.4 Indemnification........................................... 9
9.5 Creation of Trust......................................... 9
9.6 Governing Law............................................. 10
9.7 Entire Agreement.......................................... 10
Exhibit A Change in Control
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THE GENERAL CHEMICAL GROUP INC.
LONG TERM INCENTIVE PROGRAM
Section 1
Introduction
The purpose of the Long Term Incentive Plan ("LTIP") is to provide financial
incentives to select key employees of The General Chemical Group Inc. and its
subsidiaries and joint ventures in which it participates, by giving them an
interest in any profit improvement of The General Chemical Group Inc.
Participation in the Program will be evidenced by the grant of a unit interest
in Award Pools created relative to each award.
Section 2
Definitions
2.1. Definitions. Whenever used herein, the following terms shall have the
respective meanings set forth below:
a) "Active Employee" means an employee who is employed by The General
Chemical Group Inc. or any subsidiary thereof, but does not include any such
employee who is on an inactive status.
b) "Award Pool" means an Award Pool created pursuant to Section 5.1
c) "Board" means the Board of Directors of The General Chemical Group Inc.
d) "Cause" means a Participant's (i) willful and continued failure to
substantially perform the duties ordinarily performed by a person in the
Participant's position or such other duties assigned to him (other than due to
physical or mental illness) after receiving written notice of his specific
failure to perform those duties, (ii) willful engagement in conduct which is
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materially injurious to the Company's or any Subsidiary's business or
reputation, (iii) intentionally pursuing interests substantially adverse to the
interests of the Company or its subsidiaries or (iv) conviction of a felony.
e) "Change in Control" is defined per Exhibit A.
f) "Company" means The General Chemical Group Inc. and its subsidiaries,
including specifically, General Chemical Industrial Products, Inc. and its
successors and assigns and any company controlled by the Existing Shareholders
which shall acquire more than 50% of their assets.
g) "Adjusted EBITDA" means the operating profit or loss of the Company as
determined in accordance with GAAP plus (i) the aggregate depreciation,
amortization and other non-cash expenses deducted in computing such operating
profit or loss; plus (ii) any item classified as unusual or non-recurring loss
or charge; minus (iii) any item classified as an unusual or non-recurring gain;
minus (iv) minority interest; minus (v) the minority interest equity ownership
position in General Chemical (Soda Ash) Partners ("GCSAP") multiplied by GCSAP's
depreciation and amortization; minus (vi) total capital expenditures adjusted
for GCSAP's minority interest.
h) "Effective Date" means January 1, 2002.
i) "Existing Shareholders" means those individuals and charitable
foundations who/which, as of the Effective Date, are shareholders of The General
Chemical Group Inc., their present or future spouses and descendants and any
trusts established for the benefit of any of the foregoing, and their legal
representatives or any charitable foundation established by such persons.
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j) "Good Reason" shall have the meaning given to such term by the Board as
constituted prior to a Change in Control (see Exhibit A attached hereto).
k) "Participant" means any employee who participates in the Plan pursuant
to Section 3 and following his death, his estate.
l) "Plan" means The General Chemical Group Inc. Long Term Incentive
Program.
m) "Total Disability" means a medically determinable physical or mental
impairment which (i) can be expected to result in death or which has lasted or
can be expected to last for a continuing period of not less than 12 months, and
(ii) renders a Participant unable to engage in any substantial gainful activity.
n) "Units" means a contractual right, subject to the terms and conditions
of the Plan, to receive a cash payment from an Award Pool, as provided in
Section 6.
2.2 Gender and Number. Except when otherwise indicated by the context, words in
the masculine gender used in the Plan shall include the feminine gender, the
singular shall include the plural, and the plural shall include the singular.
Section 3
Eligibility and Participation
From time to time, the Company's President and CEO will submit to the Board or
its Compensation Committee a recommendation detailing the Plan's Participants
and each Participant's level of participation in the Plan. The Board will have
sole authority to approve such recommendations. Participation in the Plan will
be evidenced by Units.
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After a Change in Control, the Board may do nothing which would dilute or
adversely impact the Participants' interests, and the number and identity of
Participants and their interests then existing shall be frozen unless forfeited
in accordance with Subsection 6.6 below.
Section 4
Units Subject to Plan and Grants
The maximum number of Units available for grant under the Plan for each Award
Pool shall be at the discretion of the Board. The Board may grant Units,
including Units which have been forfeited pursuant to Section 6.6, to any Active
Employee in such amounts as it shall determine at any time prior to the first
payment date for the Award Pool to which they relate. Any grant of Units
hereunder shall be subject to the terms and conditions of the Plan and such
other terms and conditions not inconsistent with the Plan as the Board shall
determine.
Section 5
Establishment of Award Pools
5.1 Award Pool. A separate Award Pool shall be established for each calendar
year beginning with the calendar year 2002. The amount credited to each Award
Pool shall be equal to 20% of the change in the Company's Adjusted EBITDA versus
the prior calendar year. Award Pools will be positive in years when Adjusted
EBITDA increases and negative in years when Adjusted EBITDA decreases. The
audited financial reports for the Company for a respective calendar year will be
the source documents for each Award Pool determination.
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5.2 Interest. Each Award Pool that has a positive balance shall be increased on
the last day of each calendar quarter and, in the case of any Award Pool created
prior to a Change in Control, on the day on which a Change in Control occurs (if
such day is other than the last day of a calendar quarter) by an amount equal to
interest at the prime rate announced for such date by Citibank, N.A. on the
balance credited to such Award Pool on such date. After a Change in Control,
each Award Pool created prior to a Change in Control will be increased by the
earnings of the trust established pursuant to Section 9.5.
Section 6
Participation in and Distribution of Award Pools
6.1 Participation in Award Pools. Each Participant shall be eligible to
participate in the respective Award Pool created for a calendar year based on
the number of Units granted to such Participant with respect to such Award Pool
provided, that, such Participant is a Participant on December 31 of such
calendar year. The amount payable shall be determined in accordance with
Sections 6.3 or 6.4.
6.2 Distribution of Award Pools. One half of the amount credited to an Award
Pool for calendar year 2002 shall become payable on March 1, 2003, one-third of
the amount credited to such Award Pool shall become payable on March 1, 2004,
and the balance of the amount credited to such Award Pool shall become payable
on March 1, 2005. All Award Pools created subsequent to calendar year 2002 shall
be payable one-third on the March 1st following creation, one-third on the first
anniversary of the initial one-third payment, and one-third on the second
anniversary of the initial one-third payment.
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6.3 Value of Award Payments. On any Award Pool Payment Date (a "Payment Date") a
Participant who is eligible to receive a distribution from an Award Pool shall
receive an amount equal to (a) the amount payable on such Payment Date from the
Award Pool multiplied by (b) the number of Units granted to such Participant
with respect to such Award Pool and divided by (c) the total number granted with
respect to the specific Award Pool being valued and which have not been
forfeited in accordance with Subsection 6.6 below.
On any Payment Date with multiple Award Pool payments, positive Award Pool
payments will be reduced by negative Award Pool payments. If a negative Award
Pool payment exceeds the combined positive Award Pool payments, then the
distribution to a Participant will be zero.
6.4 Accelerated Vesting and Payment Following Retirement, Disability, Death and
a Change in Control.
6.4.1. Vesting. (a) If a Participant's employment is terminated following a
Change in Control (i) by the Company without Cause at any time following such
Change in Control, or (ii) by the Participant for Good Reason at any time
following such Change in Control or (b) a Participant's employment if terminated
by reason of (i) retirement at or after age 62 and with the approval of the
Board, (ii) Total Disability or (iii) death, then following a Change in Control
such Participant shall receive an immediate distribution of the then remaining
balance credited from each Award Pool with respect to which the Participant is
eligible to participate pursuant to Section 6.1.
6.4.2. Payment. A Participant described in Section 6.4.1 shall be entitled
to receive, with respect to each Award Pool described in Section 6.4.1, an
amount equal to (a) the then remaining balance credited to each such Award Pool
multiplied by (b) the number of Units
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granted to such Participant with respect to such Award Pool and divided by (c)
the number of Units granted with respect to the specific Award Pool being valued
and which have not been forfeited in accordance with Subsection 6.6 below.
6.5 Time of Payment. All payments with respect to Units shall be made to a
Participant in cash within thirty (30) days following the date on which such
portion becomes payable hereunder.
6.6 Forfeitures. Except as provided in section 6.4.1, a Participant shall
forfeit his Units following either a termination of his employment for Cause by
the Company, or his voluntary termination of employment.
Section 7
Plan Administration
7.1 Powers of the Board. The Board shall have the authority to determine the
employees who shall participate in the Plan, the number of Units for each Award
Pool to be awarded to each Participant, which other transactions, not expressly
contemplated herein, may give rise to the creation of an Award Pool and the
amount to be credited to such Award Pool, and generally to interpret and
administer the Plan in accordance with its purpose. Neither the Board nor any
member thereof, nor the Company, shall be liable for any action or determination
made in good faith with respect to the Plan or the rights of any person under
the Plan. The determination of the Board as to any disputed question shall be
final, binding and conclusive for all purposes and upon all persons. Following a
Change in Control, the Board shall administer the Plan in the same manner as it
was administered prior to such Change in Control.
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7.2 Records and Reports. The Company shall maintain records showing each grant
of Units under the Plan and shall keep in convenient form such data as may be
necessary for the effective operation of the Plan. Units awarded shall be
recorded by written instruments in such form as the Board shall from time to
time approve and shall be communicated to Participants. Prior to the end of any
year in which a payment relative to an Award Pool occurs, the Company shall
furnish a statement to each Participant showing the status of his participation
with respect to each such Award Pool.
Section 8
Amendment and Modification of Plan
The Board at any time and from time to time may amend or modify the Plan.
Notwithstanding the foregoing, no amendment or modification of the Plan shall in
any manner adversely affect a Participant's rights with respect to any Units
granted under the Plan for a particular Award Pool, without the prior written
consent of such Participant holding such Units.
Section 9
Miscellaneous Provisions
9.1 Nontransferability of Awards. Units granted under the Plan shall not be
sold, transferred, pledged, assigned, or otherwise alienated or hypothecated,
other than by will or by the laws of descent and distribution.
9.2 No Guarantee of Employment or Participation. 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 or
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affiliate of the Company. No employee shall have a right to be selected as a
Participant, or, having been so selected, to receive any additional grant of
Units.
9.3 Tax Withholding. The Company shall have the power to withhold, or require a
Participant to remit to the Company, an amount sufficient to satisfy Federal,
state and local withholding tax requirements with respect to amounts paid under
the Plan, and the Company may defer payment until such requirements are
satisfied.
9.4 Indemnification. Each person who is or shall have been a member of the Board
and all officers and employees of the Company who assist in the administration
and operation of the Plan shall be indemnified and held harmless by the Company
against and from any loss, cost, liability or expense that may be imposed upon
or reasonably incurred by him in connection with or resulting from any claim,
action, suit or proceeding to which he may be made a party or in which he may be
involved by reason of any action taken or failure to act under the Plan and
against and from any and all amounts paid by him in settlement thereof, with the
Company's approval, or paid by him in satisfaction of any judgment in any such
action, suit, or proceeding against him, provided he shall give the Company an
opportunity, at its own expense, to handle and defend the same before he
undertakes to handle and defend it on his own behalf. The foregoing right of
indemnification shall not be exclusive and shall be independent of any other
rights or indemnification to which such persons may be entitled under the
Company's articles of Incorporation or By-laws, by contract, as a matter of law,
or otherwise.
9.5 Creation of Trust. Upon a Change in Control the Company shall establish an
irrevocable trust with a bank or trust company, as trustee, and the Participants
as beneficiaries, in which neither the Company nor any of their creditors shall
have any interest prior to the payment of all benefits payable hereunder, and
shall fund such trust with an amount equal to the then remaining
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balance of all amounts, including interest accrued to such date, credited to
each Award Pool created prior to such Change in Control. The assets of such
trust shall be invested in short-term cash equivalents having ready
marketability, including, but not limited to, U.S. Treasury bills, commercial
paper, certificates of deposit, and other government and agency obligations.
Following a Change in Control, all payments from the Plan with respect to an
Award Pool created prior to such Change in Control shall be paid from the trust;
provided, however, if the trust fails to make such payments the obligation to do
so remains an obligation of the Company.
9.6 Governing Law. The Plan, and all agreements hereunder, shall be construed in
accordance with and governed by the laws of the State of Delaware.
9.7 Entire Agreement. This Plan constitutes the entire agreement between the
parties hereto. There are no understandings or representations, express or
implied, not expressly set forth herein and this Plan shall not be modified,
varied or supplemented except by the Board as set out in Section 8 above.
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EXHIBIT A
CHANGE IN CONTROL
"Change in Control" takes effect upon the occurrence of any of the following
events (each a "Change in Control"): (a) The Existing Shareholders cease to be
the "beneficial owners" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that a person shall be deemed to have "beneficial ownership" of all
shares that any such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of at least 50% in the aggregate of the total voting power of stock
of the Company (including specifically General Chemical Industrial Products),
whether as a result of issuance of securities of the Company, (including
specifically General Chemical Industrial Products), any merger, consolidation,
liquidation or dissolution of the Company (including specifically General
Chemical Industrial Products), any direct or indirect transfer of securities by
parent corporation or otherwise (for purposes of this clause (a) and clause (b)
below, the Existing Shareholders shall be deemed to beneficially own any voting
stock of a corporation (the "Specified Corporation") held by any other
corporation (the "Parent Corporation") so long as the Existing Shareholders
beneficially own (as so defined), directly or indirectly, at least 50% in the
aggregate, of the voting power of the voting stock of the Parent Corporation);
(b) Any "person" (as such term is used in Section 13 (d) and 14 (d) of the
Exchange Act), other than one or more of the Existing Shareholders, is or
becomes the beneficial owner (as defined in clause (a) above), directly or
indirectly, of more than thirty-five percent (35%) of the total voting power of
the stock of the Company (including specifically General Chemical Industrial
Products); provided, however, that the Existing Shareholders "beneficially own"
(as so defined), directly or indirectly, in the
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aggregate a lesser percentage of the total voting power of stock of the Company
(including specifically General Chemical Industrial Products) than such other
person and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the Board of
Directors of the Company (including specifically General Chemical Industrial
Products) (for the purposes of this clause (b), such other person shall be
deemed to beneficially own any voting stock of a Specified Corporation held by a
Parent Corporation, if such other person "beneficially owns" (as so defined),
directly or indirectly, more than 35% of the voting power of the voting stock of
such Parent Corporation and the Existing Shareholders "beneficially own" (as so
defined), directly or indirectly, in the aggregate a lesser percentage of the
voting power of the voting stock of such Parent Corporation and do not have the
right or ability by voting power, contract or otherwise to elect or designate
for election a majority of the Board of Directors of such Parent Corporation);
(c) Any period of two (2) consecutive years transpires and individuals who at
the beginning of such period constituted the Board of Directors of the Company
(including specifically General Chemical Industrial Products) (together with any
new directors whose election by such Board of Directors or whose nomination for
election by the shareholders of the Company (including specifically General
Chemical Industrial Products) was approved by a vote of 66-2/3% of the directors
of the Company (including specifically General Chemical Industrial Products)
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors of the Company
(including specifically General Chemical Industrial Products) then in office; or
(d) assets are sold to other than an Existing Shareholder, or a company
controlled by an Existing Shareholder and the value of which totals more than
50% of the then asset value of General Chemical Industrial Products.
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