Exhibit 10(q)
EXECUTIVE AGREEMENT
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Agreement between Olin Corporation, a Virginia corporation ("Olin"), and
__________ (the "Executive"), dated as of July 1, 1994.
Olin and the Executive agree as follows:
1. Definitions
As used in this Agreement:
(a) "Cause" means the willful and continued failure of the
Executive to substantially perform his duties; the willful engaging by the
Executive in gross misconduct significantly and demonstrably injurious to Olin;
or conduct by the Executive in the course of his employment which is a felony or
fraud. No act or failure to act on the part of the Executive will be considered
"willful" unless done or omitted not in good faith and without reasonable belief
that the action or omission was in the interests of Olin or not opposed to the
interests of Olin.
(b) "Change in Control" means:
(i) Olin ceases to be, directly or indirectly, owned
by at least 1,000 stockholders ;
(ii) A person, partnership, joint venture,
corporation or other entity, or two or more of any of the foregoing acting as a
"person" within the meaning of Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended (the "Act"), other than Olin, a majority-owned subsidiary of
Olin or an employee benefit plan of Olin or such subsidiary, become(s) the
"beneficial owner" (as defined in Rule 13d-3 under such Act) of 20% or more of
the then outstanding voting stock of Olin ;
(iii) During any period of two consecutive years,
individuals who at the beginning of such period constitute Olin's Board of
Directors (together with any new Director whose election by Olin's Board of
Directors or whose nomination for election by Olin'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 such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the directors then in office; or
(iv) All or substantially all of the business of Olin
is disposed of pursuant to a merger, consolidation or other transaction in which
the Company is not the surviving corporation or Olin combines with another
company and is the surviving corporation (unless the shareholders of Olin
immediately following such merger, consolidation, combination, or other
transaction beneficially own, directly or indirectly, more than 50% of the
voting stock or other ownership interests of (x) the entity or entities, if any,
that succeed to the business of the Company or (y) the combined company).
(c) "Disability" means that the Executive has suffered an
incapacity due to physical or mental illness which meets the criteria for
disability established at the time under Olin's short-term disability plan.
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(d) "Executive Severance" means:
(i) twelve months of the Executive's then current
monthly salary (without taking into account any reductions which may have
occurred at or after the date of a Change in Control); plus
(ii) an amount equal to the greater of the
Executive's average annual award under Olin's management incentive compensation
plan ("MICP") for the three years immediately preceding the date of Termination
or the Executive's then current MICP standard annual award.
(iii) The Executive will not be entitled to receive any
other severance otherwise payable to the Executive under any other severance
plan of Olin.
(iv) If on the Termination date the Executive is
eligible and is receiving payments under any then existing Olin disability plan,
then the Executive agrees that all such payments may, and will be, suspended and
offset for 12 months following the Termination date. If after such period the
Executive remains eligible to receive disability payments, then such payments
shall resume in the amounts and in accordance with the provisions of the
applicable Olin disability plan.
(e) "Potential Change in Control" means:
(i) Olin has entered into an agreement the
consummation of which would result in a Change in Control;
(ii) any person (including Olin) publicly announces
an intention to take or to consider taking actions which if consummated would
constitute a Change in Control;
(iii) Olin learns that any person (other than an
employee benefit plan of Olin or a subsidiary of Olin) has become the beneficial
owner directly or indirectly of securities of Olin representing 9.5% or more of
the combined voting power of Olin's then outstanding securities ordinarily
entitled to vote in elections of directors; or
(iv) the Board of Directors of Olin adopts a
resolution to the effect that, for purposes of this Agreement, a Potential
Change in Control of Olin has occurred.
(f) "Termination" means:
(i) The Executive is discharged by Olin other than
for Cause;
(ii) The Executive terminates his or her employment
in the event that:
(1) Olin requires the Executive to relocate
the Executive's then office to an area which is not within reasonable commuting
distance, on a daily basis, from the Executive's then residence, except that a
requirement to relocate the Executive's office to Olin's corporate headquarters
is not a basis for Termination;
(2) Olin reduces the Executive's base salary or
fails to increase the Executive's base salary on a basis consistent (as to
frequency and amount) with Olin's exempt salary system as then in effect or, in
the event of a Change in Control, as in effect immediately prior to the Change
in Control;
(3) Olin fails to continue the Executive's
participation in its benefit plans (including incentive compensation and stock
options) on substantially the same basis, both in terms of the amount of the
benefits provided (other than due to Olin's or a relevant operation's earnings
performance) and the level of the Executive's participation relative to other
participants as exists on the date hereof; provided that, with respect to annual
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and long term incentive compensation plans, the basis with which the amount of
benefits and level of participation of the Executive shall be compared shall be
the average benefit awarded to the Executive under the relevant plan during the
three years immediately preceding the date of Termination;
(4) The Executive suffers a Disability which
prevents the Executive from performing the Executive's duties with Olin for a
period of at least 180 consecutive days;
(5) Following a Change in Control, Olin fails to
substantially maintain its benefit plans as in effect at the time of the Change
in Control, unless reasonably equivalent arrangements (embodied in an on-going
substitute or alternative plan) have been made with respect to such plans; or
(6) The Executive's duties, position or
reporting responsibilities are diminished.
2. Previous Executive Agreement. This Agreement supersedes and
replaces the Executive Agreement dated as of between Olin and the Executive,
upon the expiration of such agreement on July 1, 1994.
3. Term/Executive's Duties.
(a) This Agreement expires at the close of business on September
30, 1999, unless prior to that date there is a Change in Control, in which case
this Agreement will expire on the later of the close of business on September
30, 1999 or three years following the date of the Change in Control. In the
event of the Executive's death while employed by Olin, this Agreement shall
terminate and be of no further force or effect on the date of his or her death.
(b) During the period of the Executive's employment by Olin,
the Executive shall devote his or her full time efforts during normal business
hours to Olin's business and affairs, except during reasonable vacation periods
and periods of illness or incapacity. Nothing in this Agreement will preclude
the Executive from devoting reasonable periods required for service as a
director or a member of any organization involving no conflict of interest with
Olin's interest, provided that no additional position as director or member
shall be accepted by the Executive during the period of his employment with Olin
without its prior consent.
(c) The Executive agrees that in the event of a Potential
Change in Control of Olin occurring after the date hereof, the Executive will
remain in the employ of Olin for a period of six months from the occurrence of
such Potential Change in Control, during which period the Executive will have an
office, title, duties an d responsibilities substantially consistent with those
applicable immediately prior to the Potential Change in Control.
4. Executive Severance Payment
(a) In the event of a Termination occurring before the
expiration of this Agreement, Olin will pay the Executive a lump sum in an
amount equal to the Executive Severance. The payment will be made within 30 days
of the Termination.
(b) In the event of a Termination after a Change in Control has
occurred, in addition to the Executive Severance paid under Paragraph 4(a)
above, Olin will pay a Change
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in Control severance premium to the Executive in an amount equal to one* times
the Executive Severance. The Change in Control severance premium, if it becomes
due, will be made within 30 days of the Termination.
(c) The amount due under paragraph 4(a) or 4(b) will be
reduced to the extent that, if the amounts were paid in monthly installments, no
installment would be paid after the Executive's sixty-fifth birthday.
(d) The Executive will not be required to mitigate the amount of
any payment provided for in paragraph 4(a) or 4(b) by seeking other employment
or otherwise, nor shall any compensation received by the Executive from a third
party reduce such payment. Except as may otherwise be expressly provided herein,
nothing in this Agreement will be deemed to reduce or limit the rights which the
Executive may have under any employee benefit plan, policy or arrangement of
Olin.
5. Other Benefits
(a) If the Executive becomes entitled to payment under paragraph
4(a), the Executive will receive 12 months service credit under all Olin pension
plans for which the Executive was eligible at the time of the Termination (i.e.,
under Olin's qualified pension plans to the extent permitted under then
applicable law, otherwise such credit will be reflected in a supplementary
pension payment from Olin to be due at the times and in the manner payments are
due the Executive under such qualified pension plans), and for 12 months from
the date of the Termination the Executive will continue to enjoy coverage under
all Olin medical, dental, and life insurance plans to the extent the Executive
was enjoying such coverage immediately prior to the Termination. The Executive
shall accrue no vacation during the 12 months following the date of Termination
but shall be entitled to payment for accrued and unused vacation for the then
current year. The Executive shall not be entitled to an MICP award for the
calendar year of Termination if Termination occurs during the first calendar
quarter. If Termination occurs during or after the second calendar quarter, the
Executive shall be entitled to a prorated MICP award for the calendar year of
Termination which shall be determined by multiplying his or her then current
MICP standard by a fraction the numerator of which is the number of weeks in the
calendar year prior to the Termination and the denominator of which is 52. The
Executive shall accrue no MICP award during the 12 months following the date of
Termination .
(b) If the Executive receives payment under paragraph 4(b),
the pension credit and insurance coverage provided for in paragraph 5(a) will be
for an additional 12-month** period.
(c) Notwithstanding the foregoing paragraphs (a) and (b), no
such service credit or insurance coverage will be afforded by this Agreement
with respect to any period after the Executive's sixty-fifth birthday.
(d) In the event of a Termination, the Executive will be
entitled at Olin's expense to outplacement counseling and associated services in
accordance with Olin's customary practice at the time (or, if a Change in
Control shall have occurred, in accordance
*In the case of Chief Executive Officer and the President, "two".
**In the case of the Chief Executive Officer and the President, "24-month".
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with such practice immediately prior thereto) with respect to its senior
executives who have been terminated other than for cause. It is understood that
the counseling and services contemplated by this paragraph 5(d) are intended to
facilitate the obtaining by the Executive of other employment following a
Termination, and payments or benefits by Olin in lieu thereof will not be
available to the Executive.
(e) Notwithstanding the provisions of Section 10 of the Olin
Senior Executive Pension Plan (the "Senior Plan"), if the Executive is in active
employment with Olin at the date of a Change in Control but has not attained age
55 at such date, the Executive shall (if then a Participant in the Senior Plan)
nevertheless automatically be paid the lump sum amount called for by such
Section 10, except that such lump sum amount will be calculated first, by
calculating the sum equal to the annual benefit which would otherwise be payable
to the Executive at age 65 under all Olin pension plans assuming the Executive
had terminated his or her employment with Olin on the date of the Change in
Control, second, by multiplying such sum by the percentage then applicable in
the calculation of benefits paid to employees retiring from active service with
Olin at age 55 under the early retirement provisions of the Olin Salaried
Pension Plan (72% as at July, 1994), third, by determining the then lump sum
actuarial value of the product resulting from the second step, and fourth, by
deducting from such lump sum actuarial value the then lump sum actuarial value
of the Executive's accrued annual benefits under all other Olin pension plans. A
lump sum payment under this paragraph (e) will be used to reduce any payments
under the Senior Plan which may become due to the Executive thereafter.
6. Participation in Change in Control/Section 4999 of Internal
Revenue Code
(a) In the event that the Executive participates or agrees to
participate by loan or equity investment (other than through ownership of less
than 1% of publicly traded securities of another company) in a transaction
("acquisition") which would result in an event described in paragraph 1(b)(i) or
(ii), the Executive must promptly disclose such participation or agreement to
Olin. If the Executive so participates or agrees to participate, no payments due
under this Agreement or by virtue of any Change in Control provisions contained
in any compensation or benefit plan of Olin will be paid to the Executive until
the acquiring group in which the Executive participates or agrees to participate
has completed the acquisition. In the event the Executive so participates or
agrees to participate and fails to disclose his participation or agreement, the
Executive will not be entitled to any payments under this Agreement or by virtue
of Change in Control provisions in any Olin compensation or benefit plan,
notwithstanding any of the terms hereof or thereof.
(b) Any payments made pursuant to this Agreement or by virtue of
Change in Control provisions in any Olin compensation or benefit plan which are
subject to tax under Section 4999 of the Internal Revenue Code or a successor
provision ("4999") will be increased so that after paying the tax imposed by
4999 and the income tax on the amount of the increase provided by this paragraph
(b), the Executive will have received a net payment equal to that which he would
have received if 4999 did not apply.
7. Successors; Binding Agreement
(a) Olin will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business or assets of Olin, by agreement, in form and substance satisfactory
to the Executive, expressly to assume and agree to perform this Agreement in the
same manner and to the same extent that Olin would
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be required to perform if no such succession had taken place. Failure of Olin to
obtain such assumption and agreement prior to the effectiveness of any such
succession will be a breach of this Agreement and entitle the Executive to
compensation from Olin in the same amount and on the same terms as the Executive
would be entitled to hereunder had a Termination occurred on the succession
date. As used in this Agreement, "Olin" means Olin as defined in the preamble to
this Agreement and any successor to its business or assets which executes and
delivers the agreement provided for in this paragraph 7 or which otherwise
becomes bound by all the terms and provisions of this Agreement by operation of
law or otherwise.
(b) This Agreement shall be enforceable by the Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
8. Notices. For the purpose of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when delivered or mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive:
If to the Company: Olin Corporation
120 Long Ridge Road
Stamford, CT 06904
Attention: Corporate Secretary
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
9. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Connecticut.
10. Miscellaneous. No provisions of this Agreement may be modified,
waived or discharged unless such modification, waiver or discharge is agreed to
in writing signed by the Executive and Olin. No waiver by either party hereto at
any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same Agreement.
12. Withholding of Taxes. Olin may withhold from any benefits payable
under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
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13. Non-assignability. This Agreement is personal in nature and
neither of the parties hereto shall, without the consent of the other, assign or
transfer this Agreement or any rights or obligations hereunder, except as
provided in paragraph 7 above. Without limiting the foregoing, the Executive's
right to receive payments hereunder shall not be assignable or transferable,
whether by pledge, creation of a security interest or otherwise, other than a
transfer by his will or by the laws of descent or distribution, and, in the
event of any attempted assignment or transfer by the Executive contrary to this
Section, Olin shall have no liability to pay any amount so attempted to be
assigned or transferred.
14. No Employment Right. This Agreement shall not be deemed to confer
on the Executive a right to continued employment with Olin.
15. Disputes/Arbitration.
(a) Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration at Olin's
corporate headquarters in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator's award in
any court having jurisdiction; provided, however, that the Executive shall be
entitled to seek specific performance of the Executive's right to be paid during
the pendency of any dispute or controversy arising under or in connection with
this Agreement.
(b) Olin shall pay all reasonable legal fees and expenses which
the Executive may incur to enforce this Agreement unless the Executive had no
reasonable basis for his claim. Should Olin dispute the entitlement of the
Executive to such fees and expenses, the burden of proof shall be on Olin to
establish that the Executive had no reasonable basis for his claim.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered as of the day and year first above set forth.
OLIN CORPORATION
By: ______________________
John W. Johnstone, Jr.
Chairman of the Board and
Chief Executive Officer
_________________________
(Name of Executive)