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Exhibit 10(xiv)(j)
B O R D E N, I N C.
December 23, 1993
George J. Waydo
Borden, Inc.
180 East Broad Street
Columbus Ohio
Dear George:
This letter will confirm our mutual agreement concerning your
continued employment and future termination. It will also serve
to cover various related matters so there will be no future
confusion regarding them.
1. Effective immediately, you are relieved of your Snacks
and International Foods day-to-day responsibilities.
Your new title will be Vice President, Borden, Inc. In
this new position, which reports directly to the
President, Chief Executive Officer, your primary
responsibility will be to sell Borden Japan, and you
will diligently devote your efforts to this project.
You may also be assigned responsibility for other
International portfolio actions, or other special
assignments.
2. You will continue in these assignments through April
30, 1994. These assignments may, by mutual consent, be
extended. If no extension is made, your termination
date will be April 30, 1994. Your employment may not
be terminated prior to that date for any reason other
than for "cause" and your employment shall be deemed to
have been terminated for "cause" only if termination of
employment by the Company shall have taken place as a
direct result of an act or acts (i) of dishonesty
constituting a felony and resulting or intended to
result directly or indirectly in gain or personal
enrichment at the expense of the Company to which you
are not legally entitled, (ii) such as to cause
intentional material harm to the Company, (iii)
materially impairing the reputation of the Company,
(iv) materially interfering with the operations of the
Company, or (v) that materially breach this agreement.
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George J. Waydo
Page 2.
Anything in this paragraph 2 or elsewhere in this
agreement to the contrary notwithstanding, your
employment shall in no event be considered to have been
terminated by the Company for "cause" if termination of
your employment took place (i) as the result of bad
judgement or an act of ordinary negligence on your
part, (ii) because of an act or omission believed by
you in good faith to have been in or not opposed to the
interests of the Company, or (iii) because of an act or
omission in respect of which a determination could
properly be made that you met the applicable standard
of conduct prescribed for indemnification or
reimbursement or payment of expenses under (A) the by-
laws of the Company, (B) the laws of the State of New
Jersey, or (C) the directors' and officers' liability
insurance of the Company, in each case either as in
effect at the time of this agreement or in effect at
the time of such act or omission.
To aid you during this four-month assignment, and any
subsequent extension, you will have the assistance of
Ms. Judy Moehl and, the time of Mr. Michael Miller
necessary to work on the Japan project only. Mr.
Miller will otherwise report to Mr. Dan O'Riordan. If
either of these employees should transfer or terminate
during the four months or extended period, we will
provide comparable skilled assistance. You may
continue to use your present office during this period,
plus any authorized extension of employment.
3. Following termination, you will be paid all monies due you
from your Medical and Survivor Accumulation Accounts, and
your Executive Supplemental Pension Plan, in accordance with
those plans. To assist you in understanding this agreement
a schedule of your estimated benefit amounts is attached.
Parking privileges, will be extended 3 months following
termination. Reimbursement on any unpaid 1994 financial
counselling, regular club dues for the Columbus Athletic
Club and the Catawba Island Club, and home/auto insurance is
available to you through December 31, 1994. You agree to
then return these club memberships/sale receipts to Borden,
Inc. promptly after December 31, 1994. Your umbrella
insurance benefit will continue through December 31, 1994.
Borden, Inc. will provide you with notice and termination
pay totaling $352,000. Payments will be at the gross rate
of $14,667 semi-monthly for 12 months following termination.
Statutory taxes and deductions for any monies due Borden,
Inc. will be made from these payments.
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George J. Waydo
Page 3.
In the event you embark upon a business venture as a
principal, the Company will, upon your request, pay any
remaining monies due you under this paragraph 3 in a
lump sum less $50,000. The balance of $50,000 will be
paid to you on the last day of your severance period,
i.e. April 30, 1995 if your employment is not extended.
4. Effective immediately, you will resign your position as an
officer of Coco Lopez U.S.A., Inc.
5. You understand that you will not participate in the annual
Management Incentive Plan, the 1992-94 long-term cycle or
the 1993-95 cycle, unless your active employment is extended
through December 31, 1994.
6. Your other regular employee benefits (medical, life, pension
and savings plan) will cease on your termination date except
that, if you wish, Borden will extend your active
medical/dental coverage only, including prescription drugs,
for 12 months, at normal contributions. You would then be
eligible for COBRA for an additional six months. At that
time you would be eligible to convert to the conversion
policies then offered to terminating employees generally.
We are agreeable, as an option to this medical
extension which you must elect prior to your
termination date, to pay Metropolitan Life Insurance
Corporation up to $30,000 to convert you to a private
medical plan similar to Borden's, if such a conversion
plan is available upon your termination. In such
event, you would be responsible to make necessary
premium payments following the conversion. The
proposed policy provides that it will be renewed until
the earliest of: (a) the Medicare eligibility date of
you or your spouse whoever is younger; (b) that
person's 65th birthday; or (c) the date Metropolitan
refuses to renew this policy. Metropolitan cannot
refuse renewal on an individual basis. Metropolitan
can refuse renewal only on a class basis or on a
statewide basis. If Metropolitan refuses to renew your
policy, however, they will continue to pay benefits for
a total disability that started before the termination
date until the earliest of: (a) the end of the
disability, (b) the end of the calendar year, or (c)
the date the Maximum Aggregate Benefit ($1,000,000) is
incurred.
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George J. Waydo
Page 4.
In the event you become disabled while under your present
disability plans and prior to your termination date, any
monies paid you as Salary Continuance and Long-Term
Disability will be deducted from the notice and termination
pay described above.
7. As special consideration to assist you with travel expense
in locating a new position following termination, and to
defray the expenses you will incur for office, telephone and
secretarial assistance, the Company will reimburse you on an
accountable basis for job search costs. Requests for
reimbursement for these items should be submitted on a
regular expense form with accompanying receipts. As further
consideration to you, Borden, Inc. will provide additional
monies to you in the form of cash or benefits to include but
not be limited to such categories as career-testing,
training, relocation, outplacement firm assistance,
medical/dental payments, or additional notice pay. Where
required by law, statutory deductions will be made from
these monies. The total for these reimbursements, cash or
benefits under this paragraph 7 will not exceed $50,000 over
30 months from date of termination.
8. You have until your termination date to exercise eligible
stock options within the terms of the options.
9. Under the Management Incentive plan, you may have elected to
defer incentive awards. Deferred awards under the plan, if
any, will be paid to you consistent with the provisions of
the Plan.
10. You acknowledge executing a Security and Invention
Agreement, and you agree to comply with the terms and
conditions of that Agreement.
11. Because of the unusual arrangement being provided to you, we
will expect and you agree, that you will conduct yourself in
a manner which does not disparage Borden, Inc., its
employees, officers, subsidiaries, and affiliates, and which
is not contrary to the best interest of these organizations.
The Company, through its Core Management and officers, will
not disparage you. This obligation will not be construed to
prohibit the Company from making truthful statements about
its business; nor shall it prohibit you from making truthful
statements responsive to any statements made by the Company
or in response to legal process.
12. You agree to be available, as reasonably necessary and upon
reasonable notice, with no expense to yourself, for legal
proceedings, whether administrative, civil or criminal, if
any, which are already pending or which may arise in the
future with respect to events which occurred during your
employment with Borden, Inc. You further agree to assist
and cooperate with Borden, Inc. in any such proceedings.
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George J. Waydo
Page 5.
13. As a former Executive Vice President end officer of Borden,
Inc., your knowledge of our customers, markets and plans in
all facets of the business is extensive and a valuable
asset. Accordingly, you agree that for 12 months following
your termination, you will not engage, without prior written
consent of the Chief Executive Officer (not to be
unreasonably withheld), directly or indirectly on your own
account, or as agent, employee,partner, major stockholder or
otherwise, in any of the following activities with respect
to any product or service sold by Borden, Inc., its
subsidiaries or affiliates (hereinafter "the Company") in
any unit in which you were employed or for which you had
responsibility during the past two (2) years, or any product
or service similar to, competitive with, or intended to
compete with any product or service:
a) Sell, manufacture, distribute or solicit orders for any
such product or service in any geographical area for
which you were responsible as a representative of the
Company at any time during the two (2) years
preceding this agreement or engage in any
such activities in any other area where they
result in or involve the shipment or delivery
of such product to, or performance of any
service in, any geographical area in which
you acted as an employee of the Company at
any time during such two (2) year period.
b) In any geographical area, solicit, sell or contact,
with a view to selling any such product or service, any
person, firm or corporation from whom you solicited any
order directly or indirectly or otherwise dealt with on
behalf of the Company at any time during the two(2)
year period set forth above.
14. This agreement is personal and not assignable by you. In
the event of your death during the term hereof, this
agreement shall terminate as of the last day of the month
during which your death occurred and your designated
beneficiary (which may be a trust, or if none is so
designated, your estate) will be paid all monies due up
through the month of your death and, in addition, the
balance of any of the pay due as noted in paragraph 3 above.
If that death occurs while you are still in an "employee"
status, your widow would be entitled to the benefits
applicable to widows under the benefits plans in which you
are participating at the time of your death.
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George J. Waydo
Page 6.
15. In the event of a material breach of your obligation not to
compete under this agreement, you understand and agree to
pay to Borden, Inc., any monies received under this
agreement up to $400,000, and acknowledge that no further
sums would be due you hereunder. This remedy is in addition
to any remedy Borden, Inc. has to specifically enforce your
agreement and is not to be construed as a limitation on its
right to recover any greater amount of damage Borden can
prove.
16. We both agree that this agreement and its attachments
supersedes any and all other agreements relating to your
employment with the Company including, but not limited to,
your Core Arrangement (dated March 15, 1988), Team Agreement
and Supplemental Benefits Agreement. This agreement shall
be governed by the laws of the State of Ohio and shall inure
to the benefit of the successors and assigns of Borden, Inc.
Any provision of the agreement deemed by a court to be too
broad to be legally enforced shall be modified but only to
the extent required to be so legally enforceable. If during
your continued active employment any individual or group
acquires 15% of the Common Stock of the Company (excluding
for this purpose any acquisition of such Common Stock by the
Company) and such stock is held for 30 days, the CEO, solely
at his discretion, and based on your performance relative to
selling Borden Japan, may permit you to qualify for the
employment extension arrangement outlined in 2 (a) of your
cancelled Core Arrangement letter dated March 15, 1988.
17. In consideration of these foregoing benefits provided to
you, you hereby release and discharge Borden, Inc., its
subsidiaries and affiliates, their officers, employees and
agents from any and all current liabilities, claims for
money, employment, re-employment, reinstatement and for any
and all causes of action whatsoever which you may now have
against them including those arising out of your employment,
the termination thereof, or discrimination based on age,
disability, race, sex or other reasons, except any vested
pension rights which you may have acquired; provided,
however, that this release shall not be construed as
preventing you from pursuing any rights you have to enforce
the terms of this agreement.
18. You affirm that you are entering into this agreement and
release voluntarily in order to receive payments and other
benefits described above. You understand that the Company
would not make these payments or extend these benefits to
you without your voluntary consent to this agreement.
19. In making your decision, you recognize that you have the
right to seek advice and counsel from others, including that
of an attorney if you so choose. You acknowledge that you
have until January 28, 1994 to consider this offer.
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George J. Waydo
Page 7.
20. You have seven calendar days from the date you sign this
agreement to cancel it in writing. You also understand that
this agreement will not bind you or the Company until after
the seven-day period you have to cancel. No payments will
be made under this agreement until it becomes binding. You
may cancel this agreement by signing the cancellation notice
below (or by any other written signed notice) and delivering
it to Borden, Inc. within seven days of your signing this
agreement.
George, I believe this completely and accurately describes our
understanding and ask that you indicate your agreement by signing
the original of this agreement and returning it to me.
For Borden, Inc.
/S/ Allan L. Miller
By: ______________________________
Allan L. Miller
Attachment
READ, UNDERSTOOD AND AGREED:
/S/ George J. Waydo December 23, 1993
___________________________ __________________
George J. Waydo Date
CANCELLATION NOTICE
(To cancel this agreement, sign below and deliver this
copy of the agreement to the Company within seven (7)
days of the date you signed the agreement).
I HEREBY CANCEL THIS AGREEMENT.
______________________ _____________________
(DATE) (SIGNATURE)