Exhibit 10.17
CONFIDENTIAL
___________, 20__
Dear:
W. R. Grace & Co., a Delaware corporation (the "Company"),
considers it essential to the best interests of its stockholders to foster the
continuous employment of key management personnel. In this connection, the Board
of Directors of the Company (the "Board") recognizes that, as is the case with
many publicly held corporations, the possibility of a change in control may
exist and that such possibility, 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 Company, its subsidiaries and other business
units, and its stockholders.
Accordingly, the Board has determined that appropriate steps
should be taken to reinforce and encourage the continued attention and
dedication of members of the Company's management, including yourself, to their
assigned duties without distraction in the face of potentially disturbing
circumstances arising from the
possibility of a change in control of the Company, although no
such change is now contemplated.
In order to induce you to remain in the employ of Grace (as
hereafter defined), the Company agrees that you shall receive the severance
benefits set forth in this letter agreement ("Agreement") in the event your
employment with Grace is terminated subsequent to a Change in Control of the
Company (as hereinafter defined) under the circumstances provided in this
Agreement.
1. Definitions. When used in this Agreement as capitalized
terms, the following defined terms shall have the meanings set forth or
specified in this Section.
(a) "Board" shall have the meaning specified in the first
paragraph of this Agreement.
(b) "Change in Control of the Company" means and shall be
deemed to have occurred if (i) the Company determines that any "person" (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act), other than a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company or a corporation owned, directly or indirectly, by the stockholders
of the Company in substantially the same proportions as their ownership of stock
of the Company, has become the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of 20% or more of the
outstanding common stock of the Company (provided, however, that a Change in
Control of the
Exhibit 10.17
Company shall not be deemed to have occurred if such person has become the
beneficial owner of 20% or more of the outstanding common stock of the Company
as the result of a sale of common stock by the Company that has been approved by
the Board of Directors or pursuant to a plan of reorganization which has been
confirmed by the U.S. District Court or Bankruptcy Court having jurisdiction of
the Company's Chapter 11 case, Case No. 01-01139 (JJF), pursuant to an order of
such Court which is final and nonappealable, and becomes effective); (ii)
individuals who are Continuing Directors cease to constitute a majority of any
class of directors of the Board; (iii) there occurs a reorganization, merger,
consolidation or other corporate transaction involving the Company (a "Corporate
Transaction"), in each case, with respect to which the stockholders of the
Company immediately prior to such Corporate Transaction do not, immediately
after the Corporate Transaction, own 50% or more of the combined voting power of
the corporation resulting from such Corporate Transaction, provided that this
clause (iii) shall not apply to a Corporate Transaction which is pursuant to
section 363 of the Bankruptcy Code, or is pursuant to a plan of reorganization
which has been confirmed by the U.S. District Court or Bankruptcy Court having
jurisdiction of the Company's chapter 11 case, Case No. 01-01139 (JJF), pursuant
to an order of such Court which is final and nonappealable, and becomes
effective; or (iv) the
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shareholders of the Company approve a complete liquidation or dissolution of the
Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended
and in effect at the time of a Change in Control of the Company.
(d) "Company" means W. R. Grace & Co., a Delaware corporation,
and any successor as provided in Section 6(a).
(e) "Continuing Director" means any member of the Board who
was such a member on the date hereof and any successor to such a Continuing
Director who is approved as a nominee or elected to succeed a Continuing
Director by a majority of Continuing Directors who are then members of the
Board.
(f) "Corporate Transaction" shall have the meaning specified
in Section 1(b).
(g) "Date of Termination" shall have the meaning specified in
Section 3(e).
(h) "Disability" shall have the meaning specified in Section
3(a).
(i) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(j) "Excise Tax" means the excise tax imposed by Section 4999
of the Code and/or any interest or penalties with respect to such excise tax.
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(k) "Grace" means the Company and/or one or more of its
subsidiaries.
(l) "Good Reason" shall have the meaning specified in Section
3(c).
(m) "Notice of Termination" means a written notice which 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.
(n) "Other Payments" means payments and/or the value of
benefits to which you are entitled (other than the Severance Payment) pursuant
to any agreement (including this Agreement) that constitute "parachute payments"
(as defined in Section 280G of the Code and the regulations thereunder).
(o) "Retirement" shall have the meaning specified in Section
4(a).
(p) "Retirement Plans" means retirement plans of Grace;
"Retirement Arrangements" means Retirement Plans and agreements of Grace
relating to retirement benefits, and "Insurance Plans" means Grace's basic life
and health insurance plans, the survivor benefit under any Grace deferred
compensation program, and the Executive Salary Protection Plan.
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(q) "Severance Payment" means a single, lump sum payment, in
accordance with Section 4(c)(ii).
(r) "Tax Advisor" means a tax advisor that, in the reasonable
judgment of the Company, is familiar with and experienced in the tasks required
of the "tax advisor" hereunder, and is selected by the Company to perform those
tasks. The Company shall pay all of the fees and expenses of the Tax Advisor.
2. Term of Agreement. This Agreement shall become effective on
November 1, 1998 and shall continue in effect through December 31, 1998;
provided, however, that commencing on 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 Company shall have given
notice that it does not wish to extend this Agreement or you shall have given
such notice to the Company; provided, further, if a Change in Control of the
Company shall have occurred during the original or any extended term of this
Agreement, this Agreement shall continue in effect for a period of 24 months
beyond the month in which such Change in Control of the Company occurred. This
Agreement shall terminate upon your ceasing to be an officer of the Company
unless prior thereto a Change in Control of the Company shall have occurred.
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3. Termination Following Change in Control. No benefits shall
be payable hereunder unless there shall have been a Change in Control of the
Company during the term of this Agreement. If any of the events described in
Section 1(b) constituting a Change in Control of the Company shall have
occurred, you shall be entitled to the benefits provided in Section 4 upon the
subsequent termination of your employment during the term of this Agreement
unless such termination is (i) because of your death, Disability or Retirement,
(ii) by the Company for Cause, or (iii) by you other than for Good Reason, as
specified below.
(a) Disability. If, as a result of your incapacity due to
physical or mental illness, you shall have been absent from the full-time
performance of your duties with Grace for six consecutive months, and within 30
days after written notice of termination is given you shall not have returned to
the full-time performance of your duties, your employment may be terminated for
"Disability".
(b) Cause. The Company shall be entitled to terminate your
employment for Cause. For the purposes of this Agreement, "Cause" means (i) the
willful and continued failure by you to substantially perform your duties with
Grace (other than any such failure resulting from your incapacity due to
physical or mental illness or any such actual or anticipated failure after the
issuance of a Notice of Termination by you for Good Reason) after a
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written demand for substantial performance is delivered to you as authorized by
the Board, which demand specifically identifies the manner in which the Board
believes that you have not substantially performed your duties, or (ii) the
willful engaging by you in conduct which is demonstrably and materially
injurious to Grace, monetarily or otherwise. For purposes of this Subsection, 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 Grace. Any act or omission
based upon authority given pursuant to authorization of the Board or upon the
advice of counsel for Grace shall be conclusively presumed to be done or omitted
by you in good faith and in the best interest of Grace. Notwithstanding the
foregoing, your employment shall not be deemed to have been terminated for Cause
unless and until there shall have been delivered to you a copy of a resolution
duly adopted by the affirmative vote of not less than three-quarters of the
entire membership of the Board at a meeting of the Board, held 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 above in clause (i) or (ii) of the second
sentence of this Subsection and specifying the particulars thereof in detail.
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Exhibit 10.17
(c) Good Reason. You shall be entitled to terminate your
employment for "Good Reason". For purposes of this Agreement, "Good Reason"
means the occurrence after a Change in Control of the Company of any of the
following circumstances, without your express written consent, unless such
circumstances (other than that specified in paragraph (iii)) are fully corrected
prior to the Date of Termination specified in the Notice of Termination given by
you in respect thereof:
(i) The assignment to you of any duties inconsistent with your
status as an officer of the Company and an executive of Grace or a
substantial adverse alteration in the nature or status of your
responsibilities from those in effect immediately prior to the Change
in Control of the Company.
(ii) A reduction in your annual base salary as in effect on
the date hereof or as the same may be increased from time to time, or
Grace's failure to increase your annual base salary substantially in
accordance with increases given to other officers of the Company.
(iii) Grace's requiring you to be based anywhere other than
the metropolitan area in which your office is located immediately prior
to the Change in Control of the Company, except for required travel on
Grace's business to an extent
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substantially consistent with your business travel obligations
immediately prior to the Change in Control of the Company.
(iv) The failure by Grace, without your consent, to pay to you
any portion of your then current compensation, or the failure by Grace
(and/or any trust of which Grace is the grantor) to pay to you any
portion of an installment of deferred compensation under any deferred
compensation program of Grace within seven days of the date such
deferred compensation is due.
(v) The failure by Grace to continue in effect any
compensation plan or program in which you participate immediately prior
to the Change in Control of the Company which is material to your total
compensation, including but not limited to Grace's incentive
compensation, stock incentive and deferred compensation plans or
programs or any substitute plans or programs adopted prior to such
Change in Control of the Company, unless an equitable arrangement
(embodied in an ongoing substitute or alternative plan or program) has
been made with respect to such plan or program, or the failure by Grace
to continue your participation therein (or in such substitute or
alternative plan or program) on a basis not materially less favorable,
both in terms of the amount of benefits provided and the level of your
participation relative
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Exhibit 10.17
to other participants, as existed at the time of such Change in Control
of the Company.
(vi) The failure by Grace to continue to provide you with
benefits substantially similar to those enjoyed by you under any of the
Retirement Arrangements or Insurance Plans in which you were
participating at the time of the Change in Control of the Company, the
taking of any action by Grace that would directly or indirectly
materially reduce any of such benefits or deprive you of any material
fringe benefit enjoyed by you at the time of the Change in Control of
the Company, or the failure by Grace to provide you with the number of
paid vacation days to which you are entitled on the basis of your years
of service with Grace in accordance with Grace's normal vacation
policies in effect at the time of the Change in Control of the Company.
(vii) The failure of the Company to obtain a satisfactory
agreement from any successor corporation to assume and agree to perform
this Agreement, as contemplated in Section 6.
(viii) Any purported termination of your employment which is
not effected pursuant to a Notice of Termination satisfying the
requirements of Subsection (d) below (and, if applicable, the
requirements of Subsection (b) above). For
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purposes of this Agreement, no such purported termination shall be
effective.
Your right to terminate your employment pursuant to this Subsection shall not be
affected by your incapacity due to physical or mental illness. Your continued
employment shall not constitute consent to, or a waiver of rights with respect
to, any circumstances constituting Good Reason hereunder.
(d) Notice of Termination. Any purported termination of your
employment by Grace or by you following a Change in Control of the Company shall
be communicated by a Notice of Termination to the other party hereto in
accordance with Sections 1(m) and 7.
(e) Date of Termination, Etc. "Date of Termination" shall mean
(i) if your employment is terminated for Disability, 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 30-day period), and (ii) if your
employment is terminated pursuant to Subsection (b) or (c) above or for
Retirement or for any reason (other than Disability), the date specified in the
Notice of Termination (which, in the case of a termination pursuant to
Subsection (b) above shall not be less than 30 days, and in the case of a
termination pursuant to Subsection (c) above shall not be less than 15 nor more
than 60 days,
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Exhibit 10.17
respectively, after the date such Notice of Termination is given);
provided that if within 15 days after any Notice of Termination is given, or, if
later, prior to the Date of Termination (as determined without regard to this
proviso), the party receiving such Notice of Termination notifies the other
party that a dispute exists concerning the termination, the Date of Termination
shall be the date on which the dispute is finally determined, either by mutual
written agreement of the parties, by a binding arbitration award, or by a final
judgment, order or decree of a court of competent jurisdiction (which is not
appealable or with respect to which the time for appeal therefrom has expired
and no appeal has 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. Notwithstanding the pendency of any such dispute, the
Company will continue to pay, or cause a subsidiary to pay, you your full
compensation in effect when the notice giving rise to the dispute was given
(including, but not limited to, base salary) and continue you as a participant
in all compensation plans and programs, Retirement Arrangements and Insurance
Plans in which you were participating when the notice giving rise to the dispute
was given, until the dispute is finally resolved in accordance with this
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Subsection. Amounts paid under this Subsection are in addition to all other
amounts due under this Agreement and shall not be offset against or reduce any
other amounts due under this Agreement.
4. Compensation During Disability and upon Termination.
Following a Change in Control of the Company, upon termination of your
employment or during a period of disability you shall be entitled to the
following benefits:
(a) Disability; Retirement. During any period that you fail to
perform your full-time duties with Grace as a result of incapacity due to
physical or mental illness, you shall continue to receive your full base salary
at the rate in effect at the commencement of any such period, plus all other
amounts to which you are entitled under any compensation plan or program of
Grace in effect during such period, until your employment is terminated for
Disability pursuant to Section 3(a). Thereafter your benefits shall be
determined under the Retirement Arrangements, Insurance Plans and other
compensation plans and programs then in effect in accordance with the terms of
such plans and programs (without regard to any amendment to such plans and
programs made subsequent to a Change in Control of the Company and on or prior
to the Date of Termination).
If your employment shall be terminated by your Retirement, or
by reason of your death, the Company shall pay, or
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Exhibit 10.17
cause a subsidiary to pay, you your full base salary through the Date of
Termination or the date of your death plus all other amounts to which you are
entitled under any compensation plan or program of Grace. Thereafter your
benefits shall be determined in accordance with the Retirement Arrangements,
Insurance Plans and other compensation plans and programs then in effect in
accordance with the terms of such plans and programs (without regard to any
amendment to such plans and programs made subsequent to a Change in Control of
the Company and on or prior to the Date of Termination). As used herein,
"Retirement" shall mean termination of employment and retirement under a
Retirement Plan but shall not include termination of employment for Good Reason
or involuntary retirement by reason of the failure of the Company to approve
your continued employment after you reach normal retirement age.
(b) Cause; Voluntary Termination. If your employment shall be
terminated by the Company for Cause or by you other than for Good Reason,
Disability, Retirement or death, the Company shall pay, or cause a subsidiary to
pay, you your full base salary through the Date of Termination at the rate in
effect at the time the Notice of Termination is given, plus all other amounts to
which you are entitled under any compensation plan or program of Grace at the
time such payments are due, and the Company shall have no
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Exhibit 10.17
further obligations to you under this Agreement except as provided in Subsection
(g) below.
(c) Involuntary Termination. If your employment shall be
terminated by you for Good Reason, or by the Company other than for Cause or
Disability, you shall be entitled to the benefits provided below:
(i) The Company shall pay, or cause a subsidiary to pay: (A)
you your full base salary and vacation pay accrued (but not taken)
through the Date of Termination at the rate in effect at the time
Notice of Termination is given; (B) you your total "targeted" annual
incentive compensation award (under the annual incentive compensation
program of the Company) for the calendar year immediately preceding the
year in which the Date of Termination occurs, but only if you have not
received such an award for such preceding calendar year; (C) you a
pro-rata portion of your total "targeted" annual incentive compensation
award (under the annual incentive compensation program of the Company)
for the calendar year in which the Date of Termination occurs
(determined by reference to your base salary and salary grade on the
day before the Date of Termination), calculated by multiplying such
total "targeted" award by a fraction of which the numerator is the
number of days in such calendar year prior to your Date of
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Exhibit 10.17
Termination, and the denominator is 365; (D) you all other amounts to
which you are entitled under any compensation plan or program of Grace
at the time such payments are due; and (E) an independent, third-party
outplacement service provider to provide you (at your request) with
outplacement services that are the same as (or substantially similar
to) outplacement services offered to Company officers under the
termination program of the Company instituted during 1997.
(ii) In lieu of any further salary payments to you for periods
subsequent to the Date of Termination: A Severance Payment equal to
3.00 multiplied by the sum of (a) your annual base salary in effect on
the day immediately preceding the Date of Termination plus (b) an
amount equal to your total "targeted" annual incentive compensation
award (under the annual incentive compensation program of the Company)
for the calendar year in which the Date of Termination occurs
(determined by reference to your base salary and salary grade on the
day before the Date of Termination). Notwithstanding the foregoing, if
you have attained age 62 prior to the Date of Termination, the
Severance Payment payable to you under this Section 4(c)(ii) shall be
reduced (but not below zero) by multiplying such Severance Payment by a
fraction of which the numerator is equal to the number of whole
calendar months that
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Exhibit 10.17
have elapsed since the calendar month immediately preceding the month
in which your 62nd birthday occurs (i.e., the first calendar month
counted is the calendar month in which you attain age 62) but prior to
the Date of Termination (i.e., the last calendar month counted is the
calendar month ending immediately prior to the calendar month in which
the Date of Termination occurs), and the denominator is 36 (which, of
course, reflects the number of months from age 62 to age 65, the normal
retirement age under the W. R. Grace & Co. Retirement Plan for Salaried
Employees).
(iii) For a 24-month period following the Date of Termination,
the Company shall arrange to provide you with basic life and health
insurance benefits substantially similar to those you are receiving
under Insurance Plans immediately prior to the Notice of Termination,
and with salary continuance benefits similar to those which you would
receive under the Executive Salary Protection Plan had you continued to
be employed at the date of your death less the amount of your Severance
Payment hereunder. Benefits otherwise receivable by you pursuant to
this paragraph shall be reduced to the extent comparable benefits are
actually received by you during the 24-month period following the Date
of Termination,
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and any such benefits actually received by you shall be reported by you
to the Company. Thereafter your benefits shall be determined in
accordance with the Insurance Plans as in effect at the Date of
Termination (without regard to any amendment to such plans made
subsequent to a Change in Control of the Company and on or prior to the
Date of Termination). Notwithstanding the foregoing, benefits otherwise
receivable by you pursuant to this paragraph shall cease on the first
day of the calendar month following the month in which your 65th
birthday occurs (your "65th birthdate month"), unless you are not
entitled to receive retiree medical coverage from the Company as of the
first day of the calendar month following your 65th birthdate month, in
which case such benefits shall continue to be provided under the terms
of this paragraph (iii) for the remainder of the 24-month period
following the Date of Termination.
(d) Excise Tax. (i) Whether or not you are entitled to any
Other Payments, the Severance Payment calculated and payable under
Section 4(c)(ii) (after any adjustment necessary to satisfy the
requirements of the last sentence of Section 4(c)(ii)) shall be reduced
(but not below zero) by the amount necessary to avoid the imposition of
the Excise Tax with regard to the Severance Payment and/or Other
Payments;
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Exhibit 10.17
provided that such reduction shall only be effective if, as calculated
in accordance with this Agreement, the total amount of the Severance
Payment, as so reduced, plus Other Payments (together, the "Reduced
Payment") would be greater than the total amount of the Severance
Payment, without regard to any such reduction, plus Other Payments
(together, the "Full Payment"), after reducing the amount of both the
Reduced Payment and the Full Payment by the total of all applicable
federal, state, local and foreign taxes (including, but not limited to,
the Excise Tax).
(ii) The applicable federal, state, local and foreign taxes
shall be those taxes that, in the opinion of the Tax Advisor, will be
imposed upon you as a result of the receipt or enjoyment of the
Severance Payment and/or Other Payments and shall be calculated based
upon the highest possible marginal tax rates that could be applicable
to you for the year in which you receive the Severance Payment, unless
you inform the Tax Advisor that a different marginal tax rate is
applicable with respect to you for any such tax for that year.
(iii) The calculations necessary to effectuate the provisions
of this Section 4(c) shall be performed by the Tax Advisor prior to the
date the Severance Payment is made to you pursuant to Section 4(e). All
issues with regard to those
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calculations that are not specifically provided for by this Agreement
shall be decided in a manner that provides you with the greatest net
after-tax benefit with respect to the Severance Payment and Other
Payments, taking into consideration the above-mentioned applicable
federal, state, local and foreign taxes.
(e) Payment Of Severance Payment.
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(i) The Severance Payment to which you are entitled shall be
paid to you not later than the fifth day following your Date of
Termination, provided, however, that if the amount of such payment
cannot be fully determined on or before such day, the Company shall pay
to you on such day an estimate, as determined in good faith by the Tax
Advisor, of the amount of such payment and shall pay the remainder of
such payment (together with interest from such fifth day to the date of
such payment at a rate of interest per annum equal to the prime rate of
interest announced by Morgan Guaranty Trust Company of New York from
time to time plus 2 percentage points) as soon as the amount thereof
can be determined but in no event later than the thirtieth day after
your Date of Termination. In the event that the amount of the estimated
payment exceeds the amount subsequently determined to have been due,
such excess shall be payable by you to the Company, without interest,
on the fifth day after demand by the Company.
(ii) The Company also shall pay to you all legal fees and
expenses incurred by you as a result of your termination of employment
(including all such fees and expenses, if any, incurred in contesting
or disputing any such termination, in seeking to obtain or enforce any
right or benefit provided by
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this Agreement or in connection with any tax audit or proceeding to the
extent attributable to the application of Section 4999 of the Code to
any payment or benefit provided hereunder). Such payments shall be made
at the later of the times specified in paragraph (i) above, or within
five days after your request for payment accompanied with such evidence
of fees and expenses incurred as the Company reasonably may require.
(f) No Mitigation. You shall not be required to mitigate the
amount of any payment provided for in this Section 4 by seeking other employment
or otherwise, nor shall the amount of any payment or benefit provided for in
this Section 4 be reduced by any compensation earned by you as the result of
employment by another employer, by retirement benefits, by offset against any
amount claimed to be owing by you to the Company, or otherwise, except as
provided in Section 4(c)(iii) above.
(g) Retirement Benefits. In addition to all other amounts
payable to you under this Section 4, you shall be entitled to receive all
benefits payable to you under all Retirement Arrangements.
(h) Tax Advisor. Each calculation necessary to effectuate the
provisions of Section 4 shall be performed by the Tax Advisor within the
appropriate time periods specified herein
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for such calculation or, absent such specification, prior to the date the
Severance Payment is made to you pursuant to Section 4(e) above. All issues with
regard to those calculations that are not specifically provided for by this
Agreement shall be decided in a manner that provides you with the greatest
After-Tax Total Payment. Any determination by the Tax Advisor shall be binding
upon you and the Company.
5. Relationship to Other Agreements and Plans. To the extent
that any provision of any other agreement between Grace and you shall limit,
qualify or be inconsistent with any provision of this Agreement, then for the
purposes of this Agreement (while this Agreement remains in effect) 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. The Severance Payment shall not be
considered to be compensation for the purpose of any Retirement Arrangements,
Insurance Plans or compensation plans of Grace.
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6. Successors.
(a) Successors to the Company.
The Company shall require any successor (whether direct or
indirect, by purchase or merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would have been required to perform it if no such
succession had taken place. Failure of the Company to obtain such assumption and
agreement prior to the effectiveness of any such succession shall be a breach of
this Agreement and shall entitle you to compensation from the Company in the
same amount and on the same terms as you would be entitled hereunder if you
terminate your employment for Good Reason following a Change in Control of the
Company, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination (provided you shall have delivered a Notice of Termination to the
Company). As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and/or any successor to the Company's business and/or
assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law or otherwise.
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(b) Your Successors. 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.
7. Notices. Notices and all other communications provided for
in this Agreement 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 to the respective addresses
set forth on the first page of this Agreement, provided that all notices to the
Company shall be directed to the attention of the Board with a copy to the
Secretary of the Company, 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.
8. Governing Law. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the State of
New York.
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9. 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.
10. Arbitration. Any dispute or controversy arising under or
in connection with this Agreement shall be settled exclusively by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association. Such arbitration, whether commenced by you or the Company, shall be
conducted in either the city and state in which you reside, the city and state
in which the Company maintains its principal offices or the city and state in
which you were employed at the time the dispute or controversy arose, as
designated by you. Any arbitration pursuant to this provision shall be conducted
before an arbitrator to be selected by the Company from a list of three
arbitrators to be provided by you to the Company. All expenses, including
attorneys fees, which you incur as a result of the arbitration and/or the
dispute or controversy giving rise to the arbitration shall be paid directly by
the Company. In the event that you are entitled to, or believe that you are
entitled to, compensation pursuant to Section 4, the Company shall pay you such
compensation unless and until directed to cease such payments pursuant to an
award issued in accordance with this Section.
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Exhibit 10.17
Judgment may be entered on an award issued pursuant to this Section in any court
of competent jurisdiction. In the event that the Company seeks to stay an
arbitration sought under this Section 10, it shall post a bond, or provide
similar security, in an amount equal to any unpaid compensation which is due
you, or claimed to be due you, pursuant to Section 4.
11. General. 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 or its Compensation, Employee Benefits and Stock Incentive
Committee or any successor to such Committee. 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.
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Exhibit 10.17
The section and subsection headings contained in this
Agreement are for convenient reference only, and shall not in any way affect the
meaning or interpretation of this Agreement.
Any payments provided for hereunder shall be paid net of any
applicable withholding required under federal, state, local or foreign law. The
obligations of the Company under Section 4 shall survive the expiration of the
term of this Agreement.
12. 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. If this letter sets forth
our agreement on the subject matter hereof, kindly sign and return to the
Secretary of the Company the enclosed copy of this letter which will then
constitute our agreement on this subject. By your signing this Agreement, you
agree that, as of the date hereof, this Agreement supersedes any
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Exhibit 10.17
and all prior agreements between you and the Company setting forth your
severance benefits in the event of a Change in Control of the Company.
Sincerely,
W. R. GRACE & CO.
By
W. Brian McGowan
Senior Vice President
Agreed to __________, 20__
__________________________
Name: ____________________
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