Revised and Restated March 3, 1999 Exhibit 10.13(o)
A G R E E M E N T
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THIS CONSULTING AGREEMENT, made as of the 25th day of January, 1999,
between CYTEC INDUSTRIES INC., a corporation organized and existing under the
laws of the state of Delaware, having its executive offices at 5 Garret Mountain
Plaza, West Paterson, NJ 07424, ("CLIENT"), and DARRYL D. FRY, residing at 116
Delaware Lane, Franklin Lakes, NJ 07417 ("CONSULTANT");
W I T N E S S E T H:
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The parties hereto mutually agree as follows:
1. CLIENT retains CONSULTANT on the terms and conditions hereinafter stated
as consultant and advisor to the Executive Committee of CLIENT in connection
with the following areas: M&A; business strategy; and such other related matters
as CLIENT may from time to time deem appropriate. CONSULTANT hereby accepts such
retainer and agrees to act as such consultant and advisor. In performing
services hereunder, CONSULTANT shall function as an independent contractor and
not as an employee or agent of CLIENT. CONSULTANT represents that he is not and
will not become a party to any agreement which would conflict with this
Consulting Agreement in any way or which would prevent him from performing his
obligations under this Consulting Agreement. CONSULTANT further represents that
he will not do any act which would prevent or inhibit him from performing his
obligations hereunder. CONSULTANT agrees to devote such time to the performance
of services hereunder as is reasonably requested by the Executive Committee of
CLIENT.
All services to be rendered by CONSULTANT shall be rendered at such times and
places, as CLIENT's Executive Committee may reasonably request; provided that
CONSULTANT shall not be required to provide more than ninety (90) days of
services in any annual period consisting of February 1, 1999 to January 25, 2000
or January 26, 2000 to January 25, 2001; and provided, further, that CONSULTANT
shall not be required to render services following a "special change in control"
(as defined in CLIENT's Executive Income Continuity Plan), unless CONSULTANT is
the person, or part of the group to whom control is transferred.
2. The term of this Consulting Agreement shall commence on February 1,
1999, and shall continue until January 25, 2001, unless sooner terminated by the
earlier death of CONSULTANT.
3. In full payment for CONSULTANT's services hereunder, CONSULTANT has
been granted by the Compensation and Management Development Committee of
CLIENT's Board of Directors a nonqualified stock option dated January 25, 1999
under CLIENT's 1993 Stock Award and Incentive Plan. Such option has been granted
in consideration of (i) his continued employment with Cytec Industries Inc.
through the previously agreed date of termination of his employment and (ii)
thereafter, the performance of the consulting services provided for herein. In
addition, CLIENT shall reimburse CONSULTANT for such reasonable expenses as are
needed to carry out the consulting services. Such reimbursement shall be made
promptly upon receipt of CONSULTANT's statements therefor.
4. CONSULTANT is engaged by the CLIENT only for the purposes and to the
extent set forth in this Agreement and, accordingly, nothing in this Agreement
shall be considered to create the relationship of employer-employee between
CLIENT and CONSULTANT. CONSULTANT shall be solely responsible for any and all
city, state and federal income taxes, social security withholding taxes, and any
other self-employment tax obligation to which CONSULTANT may be subject.
CONSULTANT's services hereunder shall not qualify for participation in any
plans, arrangements or distributions by CLIENT pertaining to, or in connection
with, any pension, stock, bonus, profit-sharing, welfare or similar benefit plan
offered by CLIENT to its employees (other than the stock option specified in
paragraph 3), and CONSULTANT shall have no right or power to enter into any
contract or commitment on behalf of CLIENT.
5. In connection with the performance of his services hereunder,
CONSULTANT shall be indemnified by CLIENT to the same extent he would be
indemnified under Article VIII of CLIENT's By-Laws if the services provided for
hereunder had been rendered by him in the capacity of officer, director or
employee of CLIENT. Neither party hereto shall be obligated to enter into any
renewal or extension of this Consulting Agreement except upon such terms and
conditions as shall be mutually agreeable to the parties hereto, all as shall be
fully set forth in a formal written instrument signed by the parties hereto.
6. This Consulting Agreement constitutes the entire understanding between
the parties hereto relating to the subject
matter hereof and may be amended only by a written instrument executed by both
parties and specifically stating that it is an amendment of this Consulting
Agreement. This Agreement does not supersede, however, post-employment
obligations contained in CONSULTANT's prior employment agreement with CLIENT.
7. CONSULTANT understands that in the performance of his services
hereunder he may obtain knowledge of "confidential information", as hereinafter
defined, relating to the business of CLIENT (or any of its subsidiary or
affiliated companies). As used herein, "confidential information" means any
information (including, without limitation, any formula, pattern, device, plan,
process or compilation of information) which (i) is, or is designed to be, used
in the business of CLIENT (or any of its subsidiary or affiliated companies) or
results from its or their research and/or development activities, (ii) is
private or confidential in that it is not generally known or available to the
public and (iii) gives CLIENT (or any of its subsidiary or affiliated companies)
an opportunity to obtain an advantage over competitors who do not know or use
it. CONSULTANT shall not, without the written consent of an officer of CLIENT,
either during the term of this Consulting Agreement or thereafter, (a) use or
disclose any such confidential information outside CLIENT (or any of its
subsidiary or affiliated companies), (b) publish any article with respect
thereto, or (c) except in the performance of his services hereunder, remove or
aid in the removal from the premises of CLIENT any such confidential information
or any property or material which relates thereto.
8. Any notice or request expressly provided for or permitted under this
Consulting Agreement shall be in writing, shall be given either manually or by
mail, e-mail, facsimile message, or other written means and shall be deemed
sufficiently given if and when received by the party to be notified at its
address first set forth in this Consulting Agreement or if and when mailed by
registered or certified mail, postage prepaid, addressed to such party at such
address. Either party may, by notice to the other, change its address for
receiving such notices and requests.
9. This Consulting Agreement shall inure to the benefit of any assigns,
successors in business, or nominees of CLIENT and, except with respect to the
consulting services to be performed by CONSULTANT, shall be binding upon the
heirs, executors, administrators and legal representatives of CONSULTANT.
10. This Consulting Agreement shall be construed in accordance with and
governed by the law of the State of New Jersey.
IN WITNESS WHEREOF, this Consulting Agreement has been executed as of the
date first above written.
CYTEC INDUSTRIES INC.
/s/ D. D. Fry By:/s/ E. F. Jackman
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D. D. Fry Name: E. F. Jackman
SSN: ###-##-#### Title: Vice President