Employment Agreement

Amendment to Employment Agreement

Change in Control Agreement

 

 

 

FORM OF EXECUTIVE AGREEMENT

 

EXECUTIVE AGREEMENT, dated as of [·] (the “Effective Date”), between OLIN CORPORATION, a Virginia corporation (“Olin”), and              (the “Executive”).

 

WHEREAS Executive is a key member of Olin’s management; and

 

WHEREAS Olin believes that it is appropriate to provide Executive with certain specified severance compensation and benefits in the event of termination of employment under certain circumstances as set forth in more detail below.

 

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, and intending to be legally bound hereby, the parties hereto agree as follows:

 

SECTION 1. Definitions. As used in this Agreement:

 

(a) “Board” means the Board of Directors of Olin.

 

(b) “Cause” means the willful and continued failure of Executive to substantially perform Executive’s duties (other than any such failure resulting from of Executive’s incapacity due to physical or mental illness or injury); the willful engaging by Executive in gross misconduct significantly and demonstrably financially injurious to Olin; or willful misconduct by Executive in the course of Executive’s employment which is a felony or fraud. No act or failure to act on the part of 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 and unless the act or failure to act has not been cured by Executive within 14 days after written notice to Executive specifying the nature of such violations. Notwithstanding the foregoing, Executive shall not be deemed to have been terminated for Cause without reasonable written notice to Executive setting forth the reasons for Olin’s intention to terminate for Cause.

 

(c) “Executive Severance” means:

 

(i) twelve months of Executive’s then current monthly salary; plus

 

(ii) an amount equal to the greater of (A) Executive’s average annual award actually paid in cash (or, in the event that the award in respect of the calendar year immediately prior to the year in which the date of Termination occurs has not yet been paid, the amount of such award that would have been payable in cash in the year in which the date of Termination occurs had Executive not incurred a Termination) under Olin’s short-term annual incentive compensation plans or programs (“ICP”) (including zero if nothing was paid or deferred but including any portion thereof Executive has elected to defer and, for the avoidance of doubt, excluding any portion of an annual award that Executive does not have a right to receive currently in cash) in respect of the three calendar years immediately preceding the calendar year in


which the date of Termination occurs (or if Executive has not participated in ICP for such three completed calendar years, the average of any such awards in respect of the shorter period of years in which Executive was a participant) and (B) Executive’s then current ICP standard annual award in respect of the year in which the Date of Termination occurs.

 

(d) “Termination” means the termination of Executive’s employment by Olin other than for Cause and other than due to Executive’s death or disability. For purposes solely of clarification, it is understood that (x) if, in connection with the spinoff of an Olin business or Olin’s assets as a separate public company to Olin’s shareholders, Executive accepts employment with, and becomes employed at, the spunoff company or its affiliate, the termination of Executive’s employment with Olin shall not be considered a “Termination” for purposes of this Agreement and (y) except as provided in Section 4(d), in connection with the sale of an Olin business or assets to a third party or the transfer or sale of an Olin business or Olin’s assets to a joint venture to be owned directly or indirectly by Olin with one or more third parties, if Executive accepts employment with, and becomes employed by, such buyer or its affiliate or such joint venture or its affiliate in connection with such transaction, such cessation of employment with Olin shall not be considered a “Termination” for purposes of this Agreement.

 

SECTION 2. Entire Agreement; Prior Agreements. This Agreement [(together with the Executive Change in Control Agreement, dated as of [·] between Executive and Olin (the “CIC Agreement”))]1 sets forth the entire understanding between Executive and Olin with respect to the subject matter hereof [and thereof]2. All oral or written agreements or representations, express or implied, with respect to the subject matter of this Agreement are set forth in this Agreement [and the CIC Agreement]3. All prior agreements, understandings and obligations (whether written, oral, express or implied) between Executive and Olin with respect to the subject matter hereof are terminated as of the date hereof [(including, specifically, the Executive Agreement between Olin and Executive dated as of [·])]4 and are superseded by this Agreement [and the CIC Agreement]. Notwithstanding the foregoing, the provisions of Section 7 shall not supersede any other agreements, understandings or obligations between Executive and Olin with respect to the subject matter thereof, which shall remain in full force and effect in accordance with their terms.

 

SECTION 3. Term; Executive’s Duties.

 

(a) This Agreement expires at the close of business on the third anniversary of the Effective Date, provided that on the first anniversary of the Effective Date and on each anniversary thereafter (any such anniversary being referred to herein as a “Renewal Date”) the


1

To be included only if Executive is also a party to a CIC Agreement; insert applicable date.

 

2

To be included only if Executive is also a party to a CIC Agreement.

 

3

To be included only if Executive is also a party to a CIC Agreement.

 

4

To be included only if Executive is a party to an existing Executive Agreement; insert applicable date.


term of this Agreement shall be extended for one additional year unless Olin has provided Executive with written notice at least 90 days in advance of the immediately succeeding Renewal Date that the term of this Agreement shall not be so extended, provided that the expiration of this Agreement shall not affect any of Executive’s rights resulting from a Termination occurring prior to such expiration. In the event of Executive’s death while employed by Olin, this Agreement shall terminate and be of no further force or effect on the date of Executive’s death. Executive’s death will not affect any of Executive’s rights resulting from a Termination prior to death.

 

(b) During the period of Executive’s employment by Olin, Executive shall devote Executive’s full time efforts during normal business hours to Olin’s business and affairs, except during vacation periods in accordance with Olin’s vacation policy and periods of illness or incapacity. Nothing in this Agreement will preclude 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 Executive during the period of Executive’s employment with Olin without its prior consent.

 

SECTION 4. Executive Severance Payment.

 

(a) Subject to Section 4(b), in the event of a Termination occurring before the expiration of this Agreement, Olin will pay Executive, in substantially equal installments in accordance with Olin’s normal payroll practices, over a 12-month period immediately following the date of Termination, an aggregate amount equal to the Executive Severance, provided that no amounts shall be payable to Executive until the date on which the Release (described in Section 6) becomes effective.

 

(b) Notwithstanding Section 4(a), if Executive would otherwise have been required by Olin policy to retire at age 65, then if the date of Executive’s sixty-fifth birthday falls during the 12-month period described in Section 4(a), the aggregate amount payable pursuant to Section 4(a) shall be reduced to the amount equal to the product of (i) the Executive Severance, multiplied by (ii) a fraction, the numerator of which is the number of days from the date of Termination through and including the date of Executive’s sixty-fifth birthday and the denominator of which is 365, and such reduced amount shall be payable in substantially equal monthly installments over the period immediately following the date of Termination through the Executive’s sixty-fifth birthday, provided that no amounts shall be payable to Executive until the date on which the Release (described in Section 6) becomes effective.

 

(c) If on the date of Termination, Executive is eligible and is receiving payments under any then existing disability plan of Olin or its subsidiaries and affiliates, then Executive agrees that all such payments may, and will be, suspended and offset (subject to applicable law) for 12 months (or, if earlier, until Executive attains age 65, if Executive would otherwise have been required by Olin policy to retire at age 65) following the date of Termination. If after such period Executive remains eligible to receive disability payments, then such payments shall resume in the amounts and in accordance with the provisions of the applicable disability plan of Olin or its subsidiaries and affiliates.


(d) In the event Executive, in connection with the sale of an Olin business or assets to a third party or the transfer of an Olin business or Olin assets to a joint venture which would be owned directly or indirectly by Olin with one or more third parties, ceases to be employed by Olin and with Olin’s consent becomes employed by the buyer or its affiliate or the joint venture or its affiliate (a “New Employer”), Executive shall be entitled to the benefits provided under Section 4(a) (determined as if Executive incurred a Termination upon such cessation of employment with Olin) (subject to Sections 4(b), 4(c) and 12) and the first sentence of paragraph 5(a) (subject to paragraph 5(b)), and paragraph 5(c), if Executive has a Termination with the New Employer (with the New Employer being substituted for Olin in Section 1(d)) within 12 months of becoming employed by such New Employer. Any cash compensation amounts paid under this Section 4(d) shall be reduced by any severance, job transition or employment termination payments such Executive receives in cash from the New Employer in connection with the Termination.

 

SECTION 5. Other Benefits.

 

(a) If Executive becomes entitled to payment under Section 4(a), then (i) Executive will receive 12 months service credit under all Olin pension plans for which 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 Executive under such qualified pension plans, it being understood that the Executive shall be permitted to receive payments from Olin’s pension plans (assuming the Executive otherwise qualifies to receive such payments and elects to do so), including any such supplementary pension payment, during the period that the Executive is receiving payments pursuant to Section 4(a)), and (ii) for 12 months from the date of the Termination, Executive (and Executive’s covered dependents) will continue to enjoy coverage on the same basis as a similarly situated active employee under all Olin medical, dental, and life insurance plans to the extent Executive was enjoying such coverage immediately prior to the Termination. Executive’s entitlement to insurance continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 would commence at the end of the period during which insurance coverage is provided under this Agreement without offset for coverage provided hereunder. 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 calendar year in which the Termination occurs. If Executive receives the Executive Severance (including the amount referred to in Section 1(c)(ii)), Executive shall not be entitled to an ICP award for the calendar year of Termination if Termination occurs during the first calendar quarter. Even if Executive receives the Executive Severance (including the amount referred to in Section 1(c)(ii)), if Termination occurs during or after the second calendar quarter, Executive shall be entitled to a prorated ICP award for the calendar year of Termination which shall be determined by multiplying the average payout (as a percentage of the ICP standard) for all participants in the ICP in the same measurement organizational unit 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, which shall be payable at substantially the same time as ICP payments for the year in which Termination occurs are made to then current active employees. Executive shall accrue no ICP award following the date of Termination.


(b) Notwithstanding the foregoing Section 5(a), no such service credit or insurance coverage will be afforded by this Agreement with respect to any period after Executive’s sixty-fifth birthday, if Executive would otherwise have been required by Olin policy to retire at age 65.

 

(c) In the event of a Termination, Executive will be entitled at Olin’s expense to outplacement counseling and associated services in accordance with Olin’s customary practice at the time 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 Section 5(c) are intended to facilitate the obtaining by Executive of other employment following a Termination, and payments or benefits by Olin in lieu thereof will not be available to Executive.

 

SECTION 6. Release. Executive shall not be entitled to receive any of the payments or benefits set forth in Sections 4 and 5 unless Executive executes a Release (substantially in the form of Exhibit A hereto) in favor of Olin and others set forth in Exhibit A relating to all claims or liabilities of any kind relating to Executive’s employment with Olin or an affiliate and the termination of such employment, and such Release becomes effective in accordance with the terms thereof.

 

SECTION 7. Restrictive Covenants.

 

(a) As an inducement to Olin to provide the payments and benefits to Executive hereunder, Executive acknowledges and agrees that, [except as otherwise provided in Section 7(g),]5 in the event of Executive’s termination of employment for any reason, Executive agrees to comply with the restrictions set forth in Section 7(b) for a one-year period from the date of Termination (or, if earlier, until Executive attains age 65, if Executive would otherwise have been required by Olin policy to retire at age 65) (the “Non-Compete Term”), provided that if Executive’s employment is not terminated by reason of a Termination (and Executive therefore is not entitled to receive the payments and benefits set forth in Sections 4 and 5 hereof), then Executive need not comply with the restrictions set forth in Section 7(b).

 

(b) Executive acknowledges and agrees that, [except as otherwise provided in Section 7(g),]6 so long as Olin complies with its obligations to provide the payments required under Sections 4 and 5, Executive shall not during the Non-Compete Term, directly or indirectly: (i) render services for any corporation, partnership, sole proprietorship or any other person or entity or engage in any business which, in the judgment of Olin is or becomes competitive with Olin or any affiliate, or which is or becomes otherwise prejudicial to or in conflict with the interests of Olin or any affiliate (such judgment to be based on Executive’s positions and responsibilities while employed by Olin or an affiliate, Executive’s post-employment responsibilities and position with such corporation, partnership, sole proprietorship, person, entity or business, the extent of past, current and potential competition or conflict between Olin or an affiliate and such other corporation, partnership, sole proprietorship, person, entity or business, the effect on customers, suppliers and competitors of Executive’s assuming such post-employment


5

To be included only if Executive is a party to a CIC Agreement.

 

6

To be included only if Executive is a party to a CIC Agreement.


position, the guidelines established in the then-current edition of Olin’s Standards of Ethical Business Practices, and such other considerations as are deemed relevant given the applicable facts and circumstances), provided that Executive shall be free to purchase as an investment or otherwise, stock or other securities of such corporation, partnership, sole proprietorship, person, entity or business so long as they are listed upon a recognized securities exchange or traded over the counter and such investment does not represent a substantial investment to Executive or a greater than 1% equity interest in such corporation, partnership, sole proprietorship, person, entity or business or (ii) for Executive or for any other person, corporation, partnership, sole proprietorship, entity or business: (A) employ or attempt to employ or enter into any contractual arrangement with any employee or former employee of Olin, unless such employee or former employee has not been employed by Olin for a period in excess of six months; (B) call on or solicit any of the actual or targeted prospective clients of Olin on behalf of any corporation, partnership, sole proprietorship, person, entity or business in connection with any business competitive with the business of Olin; or (C) make known the names and addresses of such clients or any information relating in any manner to Olin’s trade or business relationships with such customers.

 

(c) Executive acknowledges and agrees (whether or not Executive is subject to the restrictions set forth in Section 7(b)) not to disclose, either while in Olin’s employ or at any time thereafter, to any person not employed by Olin, or not engaged to render services to Olin, any confidential information obtained by Executive while in the employ of Olin, including, without limitation, trade secrets, know-how, improvements, discoveries, designs, customer and supplier lists, business plans and strategies, forecasts, budgets, cost information, formulae, processes, manufacturing equipment, compositions, computer programs, data bases and tapes and films relating to the business of Olin and its subsidiaries and affiliates (including majority-owned companies of such subsidiaries and affiliates); provided, however, that this provision shall not preclude Executive from disclosing information (i) known generally to the public (other than pursuant to Executive’s act or omission) or (ii) to the extent required by law or court order. Executive also agrees that upon leaving Olin’s employ Executive will not take with Executive, without the prior written consent of an officer authorized to act in the matter by the Board any drawing, blueprint, specification or other document of Olin, its subsidiaries or affiliates, which is of a confidential nature relating to Olin, its subsidiaries or affiliates, including, without limitation, relating to its or their methods of distribution, or any description of any formulae or secret processes.

 

(d) Executive acknowledges and agrees that (i) the restrictive covenants contained in this Section 7 are reasonably necessary to protect the legitimate business interests of Olin, and are not overbroad, overlong, or unfair and are not the result of overreaching, duress or coercion of any kind, (ii) Executive’s full, uninhibited and faithful observance of each of the covenants contained in this Section 7 will not cause Executive any undue hardship, financial or otherwise, and that enforcement of each of the covenants contained herein will not impair Executive’s ability to obtain employment commensurate with Executive’s abilities and on terms fully acceptable to Executive or otherwise to obtain income required for the comfortable support of Executive and Executive’s family and the satisfaction of the needs of Executive’s creditors and (iii) the restrictions contained in this Section 7 are intended to be, and shall be, for the benefit of and shall be enforceable by, Olin’s successors and permitted assigns.


(e) Executive acknowledges and agrees that any violation of the provisions of Section 7 would cause Olin irreparable damage and that if Executive breaches or threatens to breach such provisions, Olin shall be entitled, in addition to any other rights and remedies Olin may have at law or in equity, to obtain specific performance of such covenants through injunction or other equitable relief from a court of competent jurisdiction, without proof of actual damages and without being required to post bond.

 

(f) In the event that any arbitrator or court of competent jurisdiction shall finally hold that any provision of this Agreement (whether in whole or in part) is void or constitutes an unreasonable restriction against Executive, such provision shall not be rendered void but shall be deemed to be modified to the minimum extent necessary to make such provision enforceable for the longest duration and the greatest scope as such arbitrator or court may determine constitutes a reasonable restriction under the circumstances.

 

(g) [Notwithstanding anything to the contrary in this Agreement, the provisions of Section 7(a) and 7(b) shall not apply to Executive, if Executive becomes entitled to receive severance payments and benefits pursuant to the CIC Agreement.]7

 

SECTION 8. 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 Executive, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that Olin would 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 Executive to compensation from Olin in the same amount and on the same terms as 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 Section 8 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 Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.

 

SECTION 9. 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 Executive:

 

[insert address]


7

To be included only if Executive is a party to a CIC Agreement.


If to Olin:

 

Olin Corporation

190 Carondelet Plaza

Suite 1530

Clayton, MO 63105-3443

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.

 

SECTION 10. Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the Commonwealth of Virginia (without giving effect to its principles of conflicts of law).

 

SECTION 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.

 

SECTION 12. Mitigation. Executive will not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor shall any compensation received by Executive from a third party reduce such payment except as explicitly provided in this Agreement. Except as may otherwise be expressly provided herein, nothing in this Agreement will be deemed to reduce or limit the rights which Executive may have under any employee benefit plan, policy or arrangement of Olin and its subsidiaries and affiliates. Except as expressly provided in this Agreement, payments made pursuant to this Agreement shall not be affected by any set-off, counterclaim, recoupment, defense or other claim which Olin and its subsidiaries and affiliates may have against Executive.

 

SECTION 13. 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.

 

SECTION 14. 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 Section 8 above. Without limiting the foregoing, 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 will or by the laws of descent or distribution, and, in the event of any attempted assignment or transfer by Executive contrary to this Section, Olin shall have no liability to pay any amount so attempted to be assigned or transferred.

 

SECTION 15. No Employment Right. This Agreement shall not be deemed to confer on Executive a right to continued employment with Olin.


SECTION 16. 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 Executive shall be entitled to seek specific performance of 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, as they become due, which Executive may incur to enforce this Agreement through arbitration or otherwise unless the arbitrator determines that Executive had no reasonable basis for Executive’s claim. Should Olin dispute the entitlement of Executive to such fees and expenses, the burden of proof shall be on Olin to establish that Executive had no reasonable basis for Executive’s claim.

 

(c) If any payment which is due to Executive hereunder has not been paid within ten (10) days of the date on which such payment was due, Executive shall be entitled to receive interest thereon from the due date until paid at an annual rate of interest equal to the Prime Rate reported in the Wall Street Journal, Northeast Edition, on the last business day of the month preceding the due date, compounded annually.

 

SECTION 17. Miscellaneous.

 

(a) No provisions of this Agreement may be modified, waived or discharged unless such modification, waiver or discharge is agreed to in writing signed by Executive and Olin; provided, however, that Olin may modify this Agreement to the extent Olin determines reasonable and necessary to ensure that this Agreement complies with, and that no additional taxes shall be imposed on Executive by reason of, Section 409A of the Internal Revenue Code of 1986, as amended. 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.

 

(b) The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect to the fullest extent permitted by law.

 

(c) Executive may not cumulate the benefits provided under this Agreement with any severance or similar benefits (“Other Severance Benefits”) that Executive may be entitled to by agreement with Olin (including, without limitation, pursuant to [the CIC Agreement or]8 an employment, severance or termination agreement, plan, arrangement or policy) or under applicable law in connection with the termination of Executive’s employment. To the extent that Executive receives any Other Severance Benefits, then the payments and benefits payable hereunder to such participant shall be reduced by a like amount. To the extent Olin is required to provide payments or benefits to any Executive under the Worker Adjustment and Retraining Notification Act (or any state, local or foreign law relating to severance or


8

To be included only if Executive is a party to a CIC Agreement.


dismissal benefits), the benefits payable hereunder shall be first applied to satisfy such obligation.

 

{remainder of this page intentionally left blank}


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

 

 


Name:

Title:

 

 

 


[Executive]


EXHIBIT A

 

RELEASE AGREEMENT

 

In consideration of the promises, payments and benefits provided for in the Executive Agreement, dated as of [·]9 (the “Executive Agreement”), between Olin Corporation (“Olin”) and                      (the “Executive”), Executive hereby agrees to the terms of this Release Agreement. Capitalized terms used and not defined in this Release Agreement shall have the meanings assigned thereto in the Executive Agreement.

 

1.

Employment Separation. Effective [·], Executive’s employment with Olin and its subsidiaries and affiliates (the “Company”) [will be] [was] terminated. On that date, all Company-paid benefits will cease except as otherwise set forth in the Executive Agreement. Executive will receive Executive’s final paycheck and any accrued, unused vacation, less all applicable withholdings and deductions, including but not limited to any overpayments made to Executive by the Company in any form (provided that the Company shall give Executive reasonable advance notice prior to making any deductions for any such overpayments).

 

2.

Executive Agreement Benefits. In consideration of the release set forth in Paragraph 4 of this Agreement, Executive shall be entitled to receive the Executive Severance and other benefits to which Executive is otherwise entitled pursuant to the terms and conditions of the Executive Agreement (the “Severance Benefits”). Executive acknowledges and agrees that, pursuant to the terms of the Executive Agreement, Executive is not entitled to receive the Severance Benefits unless this Agreement becomes effective in accordance with its terms and conditions.

 

3.

Non-Admission. It is specifically understood and agreed that this Agreement does not constitute and is not to be construed as an admission of any wrongdoing of any kind whatsoever on the part of Executive or any Releasee, as defined in Paragraph 4, and shall not be offered or used for that purpose.

 

4.

Waiver and Release.

 

 

a.

In exchange for the consideration described in Paragraph 2, Executive for Executive, Executive’s heirs, executors, administrators, trustees, legal representatives, successors and assigns (hereinafter collectively referred to as the “Releasor”), hereby irrevocably and unconditionally waives, releases, and forever discharges Olin and its past, present and future affiliates and related entities, parent and subsidiary corporations, divisions, shareholders, employee benefit plans and/or pension plans or funds, predecessors, successors and assigns, and its and their past, present or future officers, directors, trustees, fiduciaries, administrators, employees, agents, representatives, shareholders, predecessors, successors and assigns (hereinafter collectively referred to as the “Releasees”) from any and all claims, charges, demands, sums of money, actions, rights,


9

Insert applicable date.


promises, agreements, causes of action, obligations and liabilities of any kind or nature whatsoever, at law or in equity, whether known or unknown, existing or contingent, suspected or unsuspected, apparent or concealed (hereinafter collectively referred to as “claims”) which the Releasor now or in the future may have or claim to have against the Releasees based upon or arising out of any facts, acts, conduct, omissions, transactions, occurrences, contracts, claims, events, causes, matters or things of any conceivable kind or character existing or occurring or claimed to exist or to have occurred at any time on or before the date Executive signs this Agreement, including, but not limited to any and all claims relating to or arising out of Executive’s employment, compensation and benefits with the Company, or the termination thereof, any and all defamation, personal injury and tort claims, wrongful termination claims, discrimination, harassment and retaliation claims, whistle-blower claims, fraud claims, contract claims, benefits claims, claims under any federal, state or municipal wage payment, whistle-blower, discrimination or fair employment practices law, statute or regulation, including, without limitation, Title VII of the Civil Rights Act of 1964, as amended, Section 1981 of the Civil Rights Act of 1870, as amended, the Americans with Disabilities Act, as amended, the Age Discrimination in Employment Act (“ADEA”), the Older Workers Benefit Protection Act, the Employee Retirement Income Security Act, the Worker Adjustment and Retraining Notification Act, the Connecticut Fair Employment Practices Act, the federal Family and Medical Leave Act, the Connecticut Family and Medical Leave Act, the Connecticut Unfair Trade Practices Act, the common law of the State of Connecticut including but not limited to any claim for wrongful discharge in violation of public policy and all other federal, state or local statutes, which are or may be based upon any facts, acts, conduct, representation, omissions, claims, events, causes, matters or things of any conceivable kind or character existing or occurring at any time on or before the Effective Date (as defined in Paragraph 8 of this Agreement), and claims for costs, expenses and attorneys’ fees with respect thereto.

 

 

b.

Executive further agrees and covenants that should any person, organization or other entity file a charge, claim or sue or cause or permit to file any civil action, suit or legal proceeding involving any matter occurring at any time prior to Executive’s execution of this Agreement, Executive will not seek or accept any personal relief from such civil action, suit or proceeding.

 

5.

Non-Disclosure; Confidentiality. Executive agrees that Executive will keep confidential and not disclose, nor use for Executive’s benefit or the benefit of any other person or entity, any information received from the Company that is confidential or proprietary or that constitutes trade secrets of the Company.

 

6.

Non-Disparagement. Executive shall not, whether written or orally, criticize, denigrate or disparage the Company or any of the other Releasees.

 

7.

Return of Property and Documents. Executive represents and warrants that Executive has returned, or will immediately return, to the Company all Company property (including, without limitation, any and all Company identification cards, card key passes, corporate credit cards, corporate phone cards, computers and peripherals, cellphones, files, memoranda, reports, keys, and software).


8.

Review of Agreement; Revocation. Executive shall have the right to consider this Agreement for a period of twenty-one (21) days following Executive’s receipt of the Agreement, although Executive may choose to sign the Agreement prior to the expiration of such twenty-one (21) day period. Executive shall have the right to revoke this Agreement for a period of seven (7) days following its execution by giving written notice of such revocation to: Dennis R. McGough, Vice President, Human Resources, c/o Olin Corporation, 190 Carondelet Plaza, Suite 1530, Clayton, MO 63105, by hand or certified mail, return receipt requested, so that such notice is received within the seven (7) day revocation period. This Agreement shall not become effective until the eighth (8th) day following its execution by Executive (the “Effective Date”).

 

9.

Severability. If, at any time after the Effective Date, any provision of this Agreement shall be held by any court of competent jurisdiction to be illegal, void, or unenforceable, such provision shall be of no force and effect. The illegality or unenforceability of such provision, however, shall have no effect upon, and shall not impair the enforceability of, any other provision of this Agreement.

 

10.

Choice of Law. The terms of this Agreement and all rights and obligations of the parties thereto including its enforcement shall be interpreted and governed by the laws of the State of Virginia.

 

11.

Modification of Agreement. No provisions of this Agreement may be modified, altered, waived or discharged unless such modification, alteration, waiver or discharge is agreed to in writing and signed by the parties hereto.

 

12.

Entire Agreement; Non-Compete. This Agreement and the Executive Agreement sets forth the entire agreement between the parties hereto, and any and all prior and contemporaneous agreements, discussions or understandings between the parties pertaining to the subject matter hereof have been and are merged into and superseded by this Agreement, provided, however, that this Agreement does not supersede or affect the parties’ agreements relating to trade secrets, confidential information, copyrights, non-competition, no-solicitation and the like (including, without limitation, the provisions of Section 7 of the Executive Agreement, notwithstanding anything to the contrary contained therein), which shall remain in full force and effect in accordance with their terms.

 

13.

Executive’s Rights; Acknowledgments. Nothing in this Agreement shall prohibit or restrict Executive from: (i) making any disclosure of information required by law; (ii) providing information to, or testifying or otherwise assisting in any investigation or proceeding brought by, any federal regulatory or law enforcement agency or legislative body, any self-regulatory organization or Olin’s designated legal compliance officer; (iii) filing, testifying, participating in or otherwise assisting in a proceeding relating to an alleged violation of any federal, state or municipal law relating to fraud or any rule or regulation of the Securities and Exchange Commission or any self-regulatory organization; or (iv) challenging the validity of Executive’s release of claims under the ADEA. Executive acknowledges and agrees that:

 

 

a.

Severance Benefits exceed anything of value to which Executive would otherwise be entitled from the Company if Executive were not a party to this Agreement;


 

b.

Executive has had the opportunity to review and consider for twenty-one (21) days, the terms and provisions of this Agreement, although Executive is not prevented from executing this Agreement prior to the expiration of said twenty-one (21) day period, and Executive has been given the opportunity to revoke this Agreement for a period of seven (7) days following its execution;

 

 

c.

Executive has been advised by the Company to consult with an attorney of Executive’s choosing prior to executing this Agreement;

 

 

d.

Executive has carefully read this Agreement in its entirety and fully understand the significance of all of the terms and provisions; and

 

 

e.

Executive is signing this Agreement voluntarily and of Executive’s own free will and assent to all the terms and conditions contained herein.

 

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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered as of the dates set forth below.

 

 

 

 

OLIN CORPORATION,

 

 

by

 

 


Name:

 

 

Title:

 

 

 

 

 

 

Date:

 

 


 

BY SIGNING BELOW, EXECUTIVE AFFIRMS THAT EXECUTIVE HAS READ THIS DOCUMENT, AND IS SATISFIED WITH THE INFORMATION THAT HAS BEEN PROVIDED TO EXECUTIVE, AND EXECUTIVE AGREES TO BE LEGALLY BOUND BY THE TERMS OF THIS AGREEMENT.

 

[EXECUTIVE]

 

 

 

 

 

By:

 

 


Date:

 

 


 

 

Sworn to me this      day of                     :

 

 


Notary Public

FORM OF EXECUTIVE CHANGE IN CONTROL AGREEMENT

 

 

EXECUTIVE CHANGE IN CONTROL AGREEMENT, dated as of [    ] (the “Effective Date”), between OLIN CORPORATION, a Virginia corporation (“Olin”), and                      (the “Executive”).

 

WHEREAS Executive is a key member of Olin’s management;

 

WHEREAS Olin believes that it is in its best interests, as well as those of its stockholders, to assure the continuity of Executive for a fixed period of time in the event of actual or threatened change in control of Olin and whether or not such change in control is determined by the Board to be in the best interest of its stockholders; and

 

WHEREAS this Agreement is not intended to alter materially the compensation, benefits or terms of employment that Executive could reasonably expect in the absence of a change in control of Olin, but is intended to encourage and reward Executive’s compliance with the wishes of the Board whatever they may be in the event that a change in control occurs or is threatened.

 

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, and intending to be legally bound hereby, the parties hereto agree as follows:

 

SECTION 1. Definitions. As used in this Agreement:

 

(a) “Board” means the Board of Directors of Olin.

 

(b) “Cause” means the willful and continued failure of Executive to substantially perform Executive’s duties (other than any such failure resulting from Executive’s incapacity due to physical or mental illness or injury or any such actual or anticipated failure after the issuance of a notice of Termination by Executive in respect of any event described in Section 1(f)(ii)); the willful engaging by Executive in gross misconduct significantly and demonstrably financially injurious to Olin; or willful misconduct by Executive in the course of Executive’s employment which is a felony or fraud. No act or failure to act on the part of 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 and unless the act or failure to act has not been cured by Executive within 14 days after written notice to Executive specifying the nature of such violations. Notwithstanding the foregoing, Executive shall not be deemed to have been terminated for Cause without (i) reasonable written notice to Executive setting forth the reasons for Olin’s intention to terminate for Cause, (ii) an opportunity for Executive, together with Executive’s counsel, to be heard before the Board and (iii) delivery to Executive of a notice of Termination from the Board finding that, in the good faith opinion of 75% of the entire membership of the Board, Executive was guilty of conduct described above and specifying the particulars thereof in detail.


(c) “Change in Control” means the occurrence of any one of the following events:

 

(i) individuals who, on the Effective Date, constitute the Board (the “Incumbent Directors”) cease for any reason to constitute at least a majority of the Board; provided that any person becoming a director subsequent to the Effective Date, whose election or nomination for election was approved (either by a specific vote or by approval of the proxy statement of Olin in which such person is named as a nominee for director, without written objection to such nomination) by a vote of at least two-thirds of the directors who were, as of the date of such approval, Incumbent Directors, shall be an Incumbent Director; provided, however, that no individual initially appointed, elected or nominated as a director of Olin as a result of an actual or threatened election contest with respect to directors or as a result of any other actual or threatened solicitation of proxies or consents by or on behalf of any person other than the Board shall be deemed to be an Incumbent Director;

 

(ii) any “person” (as such term is defined in Section 3(a)(9) of the Securities Exchange Act of 1934 (the “Exchange Act”) and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a “beneficial owner” (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Olin representing 20% or more of the combined voting power of Olin’s then outstanding securities eligible to vote for the election of the Board (the “Olin Voting Securities”); provided, however, that the event described in this paragraph (ii) shall not be deemed to be a Change in Control if such event results from any of the following: (A) the acquisition of Olin Voting Securities by Olin or any of its subsidiaries, (B) the acquisition of Olin Voting Securities by any employee benefit plan (or related trust) sponsored or maintained by Olin or any of its subsidiaries, (C) the acquisition of Olin Voting Securities by any underwriter temporarily holding securities pursuant to an offering of such securities, (D) the acquisition of Olin Voting Securities pursuant to a Non-Qualifying Transaction (as defined in paragraph (iii)), or (E) the acquisition of Olin Voting Securities by Executive or any group of persons including Executive (or any entity controlled by Executive or any group of persons including Executive);

 

(iii) the consummation of a merger, consolidation, statutory share exchange or similar form of corporate transaction involving (A) Olin or (B) any of its wholly owned subsidiaries pursuant to which, in the case of this clause (B), Olin Voting Securities are issued or issuable (any event described in the immediately preceding clause (A) or (B), a “Reorganization”) or the sale or other disposition of all or substantially all of the assets of Olin to an entity that is not an affiliate of Olin (a “Sale”), unless immediately following such Reorganization or Sale: (1) more than 50% of the total voting power (in respect of the election of directors, or similar officials in the case of an entity other than a corporation) of (x) Olin (or, if Olin ceases to exist, the entity resulting from such Reorganization), or, in the case of a Sale, the entity which has acquired all or substantially all of the assets of Olin (in either case, the “Surviving Entity”), or (y) if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of more than 50% of the total voting power (in respect of the election of directors, or similar officials in the case of an entity other than a corporation) of the Surviving Entity (the “Parent Entity”), is represented by Olin Voting Securities that were outstanding immediately prior to such Reorganization or Sale (or, if applicable, is represented by shares into which such Olin Voting Securities were converted pursuant to such


Reorganization or Sale), (2) no person (other than any employee benefit plan (or related trust) sponsored or maintained by the Surviving Entity or the Parent Entity), is or becomes the beneficial owner, directly or indirectly, of 20% or more of the total voting power (in respect of the election of directors, or similar officials in the case of an entity other than a corporation) of the outstanding voting securities of the Parent Entity (or, if there is no Parent Entity, the Surviving Entity) and (3) at least a majority of the members of the board of directors (or similar officials in the case of an entity other than a corporation) of the Parent Entity (or, if there is no Parent Entity, the Surviving Entity) following the consummation of the Reorganization or Sale were, at the time of the approval by the Board of the execution of the initial agreement providing for such Reorganization or Sale, Incumbent Directors (any Reorganization or Sale which satisfies all of the criteria specified in (1), (2) and (3) above being deemed to be a “Non-Qualifying Transaction”);

 

(iv) the stockholders of Olin approve a plan of complete liquidation or dissolution of Olin.

 

Notwithstanding the foregoing, if any person becomes the beneficial owner, directly or indirectly, of 20% or more of the combined voting power of Olin Voting Securities solely as a result of the acquisition of Olin Voting Securities by Olin which reduces the number of Olin Voting Securities outstanding, such increased amount shall be deemed not to result in a Change in Control; provided, however, that if such person subsequently becomes the beneficial owner, directly or indirectly, of additional Olin Voting Securities that increases the percentage of outstanding Olin Voting Securities beneficially owned by such person, a Change in Control of Olin shall then be deemed to occur.

 

(d) “Change in Control Severance” means three times the sum of:

 

(i) twelve months of 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 (A) Executive’s average annual award actually paid in cash (or, in the event that the award in respect of the calendar year immediately prior to the year in which the date of Termination occurs has not yet been paid, the amount of such award that would have been payable in cash in the year in which the date of Termination occurs had Executive not incurred a Termination) under Olin’s short-term annual incentive compensation plans or programs (“ICP”) (including zero if nothing was paid or deferred but including any portion thereof Executive has elected to defer and, for the avoidance of doubt, excluding any portion of an annual award that Executive does not have a right to receive currently in cash) in respect of the three calendar years immediately preceding the calendar year in which the date of Termination occurs (or if Executive has not participated in ICP for such three completed calendar years, the average of any such awards in respect of the shorter period of years in which Executive was a participant) and (B) Executive’s then current ICP standard annual award in respect of the year in which the Date of Termination occurs.


Notwithstanding the foregoing, in the event that an amount is payable to the Executive under Section 4(a), such amount shall be treated as “executive severance” for purposes of any Olin benefit plan that takes payments of “executive severance” into account in determining benefits payable under such plan.

 

(e) “Termination” means:

 

(i) Executive is discharged by Olin, upon or following a Change in Control, other than for Cause and other than due to Executive’s death; or

 

(ii) Executive terminates Executive’s employment in the event that upon or following a Change in Control:

 

(A) (1) Olin requires Executive to relocate Executive’s principal place of employment by more than fifty (50) miles from the location in effect immediately prior to the Change in Control; provided, however, that an Executive whose principal place of employment (immediately prior to the required relocation) was not located at Olin’s corporate headquarters (wherever located) will not have a basis for Termination if Executive is required to relocate Executive’s principal place of employment to the location of Olin’s then-current corporate headquarters or (2) Olin requires Executive to travel on business to a substantially greater extent than, and inconsistent with, Executive’s travel requirements prior to the Change in Control (taking into account the number and/or duration (both with respect to airtime and overall time away from home) of such travel trips following the Change in Control as compared to a comparable period prior to the Change in Control);

 

(B) Olin reduces Executive’s base salary or fails to increase Executive’s base salary on a basis consistent (as to frequency and amount) with Olin’s exempt salary system as in effect immediately prior to the Change in Control;

 

(C) Olin fails to continue Executive’s participation in Olin’s benefit plans (including, without limitation, short-term and long-term cash and stock incentive compensation) on substantially the same basis, both in terms of (1) the amount of the benefits provided (other than due to Olin’s or a relevant operation’s or business unit’s financial or stock price performance provided such performance is a relevant criterion under such plan) and (2) the level of Executive’s participation relative to other participants as exists immediately prior to the Change in Control; provided that, with respect to annual and long term incentive compensation plans, the basis with which the amount of benefits and level of participation of Executive shall be compared shall be the average benefit awarded to Executive under the relevant plan during the three completed fiscal years immediately preceding the year in which the date of Termination occurs;

 

(D) Executive incurs a disability and becomes eligible to commence immediate receipt of disability benefits under the terms of Olin’s long-term disability plan;


(E) Olin fails to substantially maintain its benefit plans as in effect immediately prior to the Change in Control, unless arrangements (embodied in an on-going substitute or alternative plan) are then in effect to provide benefits that are substantially similar to those in effect immediately prior to the Change in Control; or

 

(F) (1) Executive is assigned any duties inconsistent in any adverse respect with Executive’s position (including status, offices, titles and reporting lines), authority, duties or responsibilities immediately prior to the Change in Control or (2) Olin takes any action that results in a diminution in such position (including status, offices, titles and reporting lines), authority, duties or responsibilities or in a substantial reduction in any of the resources available to carry out any of Executive’s authorities, duties or responsibilities from those resources available immediately prior to the Change in Control;

 

unless the event is described in clause (ii)(B), (C), (E) or (F) above and results from an isolated, insubstantial and inadvertent action or omission that is not taken (or omitted to be taken) by Olin in bad faith, and is remedied by Olin promptly after receipt of notice thereof given by Executive. Notwithstanding the foregoing, if (x) Executive’s employment is terminated prior to a Change in Control for reasons that would have constituted a Termination if they had occurred following a Change in Control, (y) Executive reasonably demonstrates that such termination of employment (or event described in clause (ii) above) occurred at the request of a third party who had indicated an intention or taken steps reasonably calculated to effect a Change in Control and (z) a Change in Control involving such third party (or a party competing with such third party to effectuate a Change in Control) does occur, then for purposes of this Agreement, the date immediately preceding the date of such termination of employment (or event described in clause (ii) above) shall be treated as the date of the Change in Control, except that for purposes of determining the timing of payments and benefits to Executive, the date of the actual Change in Control shall be treated as the Executive’s date of termination of employment.

 

SECTION 2. Entire Agreement; Prior Agreements. This Agreement (together with the Executive Agreement, dated as of [·] between Executive and Olin (the “Executive Agreement”)) sets forth the entire understanding between Executive and Olin with respect to the subject matter hereof and thereof. All oral or written agreements or representations, express or implied, with respect to the subject matter of this Agreement are set forth in this Agreement and the Executive Agreement. All prior agreements, understandings and obligations (whether written, oral, express or implied) between Executive and Olin with respect to the subject matter hereof are terminated as of the date hereof [(including, specifically, that certain Executive Agreement, dated [·], between Executive and Olin)]10 and are superseded by this Agreement.

 

SECTION 3. Term; Executive’s Duties. (a) This Agreement expires at the close of business on the third anniversary of the Effective Date, provided that on the first anniversary


10

To be included only if Executive is a party to an existing Executive Agreement. If Executive is a party to an existing Tier II Agreement, replace with the following: “(including, specifically, that certain letter agreement, dated [•], between Executive and Olin relating to severance in the event of a change in control of Olin)”.


of the Effective Date and on each anniversary thereafter (any such anniversary being referred to herein as a “Renewal Date”) the term of this Agreement shall be extended for one additional year unless Olin has provided Executive with written notice at least 90 days in advance of the immediately succeeding Renewal Date that the term of this Agreement shall not be so extended; provided, however, that if a Change in Control has occurred prior to the date on which this Agreement expires, this Agreement shall not expire prior to three years following the date of the Change in Control; provided, further, that the expiration of this Agreement will not affect any of Executive’s rights resulting from a Termination prior to such expiration. In the event of Executive’s death while employed by Olin, this Agreement shall terminate and be of no further force or effect on the date of Executive’s death. Executive’s death will not affect any of Executive’s rights resulting from a Termination prior to death.

 

(b) During the period of Executive’s employment by Olin, Executive shall devote Executive’s full time efforts during normal business hours to Olin’s business and affairs, except during vacation periods in accordance with Olin’s vacation policy and periods of illness or incapacity. Nothing in this Agreement will preclude 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 Executive during the period of Executive’s employment with Olin without its prior consent.

 

SECTION 4. Change in Control Severance Payment. (a) Subject to Section 4(b), in the event of a Termination occurring before the expiration of this Agreement, Olin will pay Executive a lump sum in an amount equal to the Change in Control Severance. The payment of the Change in Control Severance will be made within 10 days following the date of Termination.

 

(b) Notwithstanding Section 4(a), if Executive would otherwise have been required by Olin policy to retire at age 65, then if the date of Executive’s sixty-fifth birthday falls during the 36-month period following the date of Termination, the amount payable pursuant to Section 4(a) shall be reduced to the amount equal to the product of (i) the Change in Control Severance, multiplied by (ii) a fraction, the numerator of which is the number of days from the date of Termination through and including the date of Executive’s sixty-fifth birthday and the denominator of which is 1095.

 

(c) If on the date of Termination, Executive is eligible and is receiving payments under any then existing disability plan of Olin or its subsidiaries and affiliates, then Executive agrees that all such payments may, and will be, suspended and offset (subject to applicable law) for 36 months (or, if earlier, until Executive attains age 65, if Executive would otherwise have been required by Olin policy to retire at age 65) following the date of Termination. If after such period Executive remains eligible to receive disability payments, then such payments shall resume in the amounts and in accordance with the provisions of the applicable disability plan of Olin or its subsidiaries and affiliates.

 

SECTION 5. Other Benefits. (a) If Executive becomes entitled to payment under Section 4(a), then (i) Executive will receive 36 months service credit under all Olin pension plans for which 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 Executive under such qualified pension plans), and (ii) for 36 months from the date of the Termination, Executive (and Executive’s covered dependents) will continue to enjoy coverage on the same basis as a similarly situated active employee under all Olin medical, dental, and life insurance plans to the extent Executive was enjoying such coverage immediately prior to the Termination. Executive’s entitlement to insurance continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 would commence at the end of the period during which insurance coverage is provided under this Agreement without offset for coverage provided hereunder. Executive shall accrue no vacation during the 36 months following the date of Termination but shall be entitled to payment for accrued and unused vacation for the calendar year in which the Termination occurs. If Executive receives the Change in Control Severance (including the amount referred to in Section 1(d)(ii)), Executive shall not be entitled to an ICP award for the calendar year of Termination if Termination occurs during the first calendar quarter. Even if Executive receives the Change in Control Severance (including the amount referred to in Section 1(d)(ii)), if Termination occurs during or after the second calendar quarter, Executive shall be entitled to a prorated ICP award for the calendar year of Termination which shall be determined by multiplying Executive’s then current ICP standard annual award 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. Executive shall accrue no ICP award following the date of Termination. The accrued vacation pay and ICP award, if any, shall be paid in a lump sum when the Change in Control Severance is paid.

 

(b) Notwithstanding the foregoing Section 5(a), no such service credit or insurance coverage will be afforded by this Agreement with respect to any period after Executive’s sixty-fifth birthday, if Executive would otherwise have been required by Olin policy to retire at age 65.

 

(c) In the event of a Termination, 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 more favorable to Executive, in accordance with such practice immediately prior to the Change in Control, 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 Section 5(c) are intended to facilitate the obtaining by Executive of other employment following a Termination, and payments or benefits by Olin in lieu thereof will not be available to Executive.

 

(d) If Executive becomes entitled to the payment under Section 4(a), then at the end of the period for insurance coverage provided in accordance with Section 5(a), if Executive at such time has satisfied the eligibility requirements to participate in Olin’s post-retirement medical and dental plan, Executive shall be entitled to continue in Olin’s medical and dental coverage (including dependent coverage) on terms and conditions no less favorable to Executive as in effect prior to the Change in Control for Executive until Executive reaches age 65; provided, that if Executive obtains other employment which offers medical or dental coverage to Executive and Executive’s dependents, Executive shall enroll in such medical or dental coverage, as the case may be, and the corresponding coverage provided to Executive hereunder shall be secondary coverage to the coverage provided by Executive’s new employer so long as such employer provides Executive with such coverage.


(e) If there is a Change in Control, Olin shall not reduce or diminish the insurance coverage or benefits which are provided to Executive under Section 5(a) or 5(d) during the period Executive is entitled to such coverage; provided Executive makes the premium payments required by active employees generally for such coverage, if any, under the terms and conditions of coverage applicable to Executive.

 

SECTION 6. Participation in Change in Control; Section 4999 of Internal Revenue Code. (a) In the event that 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 (referred to in this Section 6(a) as an “acquisition”) which would result in an event described in Section 1(c)(i) or (ii), Executive must promptly disclose such participation or agreement to Olin. If 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 Executive until the acquiring group in which Executive participates or agrees to participate has completed the acquisition. In the event Executive so participates or agrees to participate and fails to disclose Executive’s participation or agreement, 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) (i) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any Payment would be subject to the Excise Tax, then Executive shall be entitled to receive an additional payment (the “Gross-Up Payment”) in an amount such that, after payment by Executive of all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Olin’s obligation to make Gross-Up Payments under this Section 6 shall not be conditioned upon Executive’s termination of employment.

 

(ii) Subject to the provisions of Section 6(b)(iii), all determinations required to be made under this Section 6(b), including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by KPMG LLP or such other nationally recognized certified public accounting firm as may be designated by Executive (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to Olin and Executive within 15 business days of the receipt of notice from Executive that there has been a Payment or such earlier time as is requested by Olin. The Accounting Firm shall not determine that no Excise Tax is payable by Executive unless it delivers to Executive a written opinion that failure to report the Excise Tax on Executive’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. All fees and expenses of the Accounting Firm shall be borne solely by Olin. Any Gross-Up Payment, as determined pursuant to this Section 6(b), shall be paid by Olin to Executive within 5 days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon Olin and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up


Payments that will not have been made by Olin should have been made (the “Underpayment”), consistent with the calculations required to be made hereunder. In the event Olin exhausts its remedies pursuant to Section 6(b)(iii) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine that amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Olin to or for the benefit of Executive.

 

(iii) Executive shall notify Olin in writing of any claims by the Internal Revenue Service that, if successful, would require the payment by Olin of the Gross-Up Payment. Such notification shall be given as soon as practicable but not later than 30 days after Executive actually receives notice in writing of such claim and shall apprise Olin of the nature of such claim and the date on which such claim is requested to be paid; provided, however, that the failure of Executive to notify Olin of such claim (or to provide any required information with respect thereto) shall not affect any rights granted to Executive under this Section 6(b) except to the extent that Olin is materially prejudiced in the defense of such claim as a direct result of such failure. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Executive gives such notice to Olin (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Olin notifies Executive in writing prior to the expiration of such period that Olin desires to contest such claim, Executive shall:

 

(A) give Olin any information reasonably requested by Olin relating to such claim;

 

(B) take such action in connection with contesting such claim as Olin shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by Olin and reasonably acceptable to Executive;

 

(C) cooperate with Olin in good faith in order to effectively contest such claim; and

 

(D) permit Olin to participate in any proceedings relating to such claim;

 

provided, however, that Olin shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise tax or income or employment tax (including interest and penalties) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 6(b)(iii), Olin shall control all proceedings taken in connection with such contest, and, at its sole discretion, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its sole discretion, either direct Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as Olin shall determine; provided, however, that, if Olin directs Executive to pay such claim and sue for a refund, Olin shall advance the amount of such payment to Executive, on an interest-free


basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties) imposed with respect to such advance or with respect to any imputed income in connection with such advance; and provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Olin’s control of the contest shall be limited to issues with respect to which the Gross-Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.

 

(iv) If, after the receipt by Executive of an amount advanced by Olin pursuant to Section 6(b)(iii), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Olin’s complying with the requirements of Section 6(b)(iii) promptly pay to Olin the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Olin pursuant to Section 6(b)(iii), a determination is made that Executive shall not be entitled to any refund with respect to such claim, and Olin does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

 

(v) Notwithstanding any other provision of this Section 6(b), Olin may, in its sole discretion, withhold and pay over to the Internal Revenue Service or any other applicable taxing authority, for the benefit of Executive, all or any portion of the Gross-Up Payment, and Executive hereby consents to such withholding.

 

(c) For purposes of this Section 6:

 

(i) “Code” means the Internal Revenue Code of 1986, as amended.

 

(ii) “Excise Tax” means the excise tax imposed by Section 4999 of the Code, together with any interest or penalties imposed with respect to such excise tax.

 

(iii) “Payment” means any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether paid or payable pursuant to this Agreement or otherwise.

 

SECTION 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 Executive, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that Olin would 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 Executive to compensation from Olin in the same amount and on the same terms as 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 Section 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 Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.

 

SECTION 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 Executive:

 

[insert address]

 

If to Olin:

 

Olin Corporation

190 Carondelet Plaza

Suite 1530

Clayton, MO 63105-3443

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.

 

SECTION 9. Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the Commonwealth of Virginia (without giving effect to its principles of conflicts of law).

 

SECTION 10. 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.

 

SECTION 11. No Mitigation. Executive will not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor shall any compensation received by Executive from a third party reduce such payment except as explicitly provided in this Agreement. Except as may otherwise be expressly provided herein, nothing in this Agreement will be deemed to reduce or limit the rights which Executive may have under any employee benefit plan, policy or arrangement of Olin and its subsidiaries and affiliates. Except as expressly provided in this Agreement, payments made pursuant to this Agreement shall not be affected by any set-off, counterclaim, recoupment, defense or other claim which Olin and its subsidiaries and affiliates may have against Executive.

 

SECTION 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.


SECTION 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 Section 7 above. Without limiting the foregoing, 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 will or by the laws of descent or distribution, and, in the event of any attempted assignment or transfer by Executive contrary to this Section, Olin shall have no liability to pay any amount so attempted to be assigned or transferred.

 

SECTION 14. No Employment Right. This Agreement shall not be deemed to confer on Executive a right to continued employment with Olin.

 

SECTION 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 Executive shall be entitled to seek specific performance of 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, as they become due, which Executive may incur to enforce this Agreement through arbitration or otherwise unless the arbitrator determines that Executive had no reasonable basis for Executive’s claim. Should Olin dispute the entitlement of Executive to such fees and expenses, the burden of proof shall be on Olin to establish that Executive had no reasonable basis for Executive’s claim.

 

(c) If any payment which is due to Executive hereunder has not been paid within ten (10) days of the date on which such payment was due, Executive shall be entitled to receive interest thereon from the due date until paid at an annual rate of interest equal to the Prime Rate reported in the Wall Street Journal, Northeast Edition, on the last business day of the month preceding the due date, compounded annually.

 

SECTION 16. Miscellaneous. (a) No provisions of this Agreement may be modified, waived or discharged unless such modification, waiver or discharge is agreed to in writing signed by Executive and Olin; provided, however, that Olin may modify this Agreement to the extent Olin determines reasonable and necessary to ensure that this Agreement complies with, and that no additional taxes shall be imposed on Executive by reason of, Section 409A of the Code. 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.

 

(b) The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect to the fullest extent permitted by law.


(c) Executive may not cumulate the benefits provided under this Agreement with any severance or similar benefits (“Other Severance Benefits”) that Executive may be entitled to by agreement with Olin (including, without limitation, pursuant to the Executive Agreement or any other employment, severance or termination agreement, plan, arrangement or policy) or under applicable law in connection with the termination of Executive’s employment. To the extent that Executive receives any Other Severance Benefits, then the payments and benefits payable hereunder to such participant shall be reduced by a like amount. To the extent Olin is required to provide payments or benefits to Executive under the Worker Adjustment and Retraining Notification Act (or any state, local or foreign law relating to severance or dismissal benefits), the benefits payable hereunder shall be first applied to satisfy such obligation.

 

[remainder of this page intentionally left blank]


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

 


Name:

Title:

 

 

 


[Executive]

 

 

 

 

 

 

                           Exhibit 10.1

 

AMENDMENT NUMBER [ONE] [TWO] (the “Amendment”), dated as of October 25, 2010, between OLIN CORPORATION, a Virginia corporation (“Olin”), and [____________] (the “Executive”), to the Executive Agreement (the “Executive Agreement”), dated as of [__________], between Olin and the Executive.

 

WHEREAS on October 16, 2008, and on August 19, 2009, the Compensation Committee of Olin determined, in accordance with Section 3 of the Executive Agreement, to extend the term of the Executive Agreement for an additional year, from January 26, 2011 to January 26, 2012, and from January 26, 2012 to January 26, 2013, respectively, with changes to apply during the extended term to the method of calculating severance thereunder in order to address guidance from the Internal Revenue Service (the “IRS”) that relates to Section 162(m) of the Internal Revenue Code of 1986, as amended (the “Code”); and

 

WHEREAS the extension of the Executive Agreement contemplates amendment of the Executive Agreement prior to January 26, 2011, to address guidance from the IRS that relates to Section 162(m) of the Code.

 

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, and intending to be legally bound hereby, the parties hereto agree as follows:

 

SECTION 1. Amendment to Section 1(c)(ii)(B).  Section 1(c)(ii)(B) shall be deemed to have been deleted and the following section shall be deemed to have been inserted in its place:

 

“(B) Executive’s then current ICP standard in respect of the year in which the date of Termination occurs (the “Current ICP Standard”), provided that if (x) Executive was reasonably expected by Olin to be a “covered employee” (within the meaning of Section 162(m) of the Code) for the taxable year of Olin in which the date of Termination occurs, (y) the ICP standard that Executive would have been eligible to receive for such year was originally intended by Olin to satisfy the performance-based exception under Section 162(m) of the Code (without regard to any entitlement to payment upon termination of employment) and (z) as of the date of Termination, Executive had been employed by Olin for a period of time sufficient to have an ICP standard for the fiscal year preceding the fiscal year in which the date of Termination occurs (the conditions in the foregoing clauses (x), (y) and (z) are hereinafter referred to collectively as the “162(m) Conditions”), the reference above to Executive’s Current ICP Standard shall be replaced by a reference to the product of (1) Executive’s annual base salary as of the date of Termination and (2) a fraction, the numerator of which is Executive’s ICP standard for the fiscal year immediately preceding the fiscal year in which the date of Termination occurs and the denominator of which is Executive’s annual base salary for such year (such product, the “Adjusted Prior Year ICP Standard”).

 

 

 


 

SECTION 2. Amendment to Section 5(a).  Section 5(a) is hereby amended by adding the following sentence immediately after the penultimate sentence of such section:

 

“Notwithstanding the foregoing, in the event that the 162(m) Conditions exist, the formula for calculating the prorated ICP award for the calendar year of Termination set forth in the immediately preceding sentence shall be replaced by a reference to Executive’s Adjusted Prior Year ICP Standard, which shall be subject to the same terms and conditions regarding proration and timing of payment as set forth in the immediately preceding sentence.”

 

SECTION 3.   Governing Law; Construction.  This Amendment shall be deemed to be made in the Commonwealth of Virginia, and the validity, interpretation, construction and performance of this Amendment in all respects shall be governed by the laws of the Commonwealth of Virginia without regard to its principles of conflicts of law.  No provision of this Amendment or any related document shall be construed against or interpreted to the disadvantage of any party hereto by any court or other governmental or judicial authority by reason of such party’s having or being deemed to have structured or drafted such provision.

 

SECTION 4.   Effect of Amendment.  Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the parties to the Executive Agreement, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Executive Agreement, all of which shall continue in full force and effect.  This Amendment shall apply and be effective on and following January 26, 2011 only with respect to the provisions of the Executive Agreement specifically referred to herein.  On and after January 26, 2011, any reference to the Executive Agreement shall mean the Executive Agreement as modified hereby.  For the avoidance of doubt, the parties’ rights and obligations under the Executive Agreement will continue in effect until January 26, 2011, without regard to any of the changes set forth in this Amendment.

 

SECTION 5.   Counterparts.  This Amendment may be executed in one or more counterparts (including via facsimile), each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party.

 

IN WITNESS WHEREOF, this Amendment has been executed by the parties as of the date first written above.

 

 

 

 


 

 

 

                 OLIN CORPORATION,

               by

 

______________________ 

 

Name:

Title:

 

                 EXECUTIVE,

 

______________________ 

 

[Name]

 

 

 

 

 

 

 

 

 

FORM OF EXECUTIVE CIC AGREEMENT DATED AS OF NOVEMBER 1, 2007

Exhibit 10.2

 

EXECUTIVE CHANGE IN CONTROL AGREEMENT, dated as of November 1, 2007 (the “Effective Date”), between OLIN CORPORATION, a Virginia corporation (“Olin”), and [•] (“Executive”).

 

WHEREAS Executive is a key member of Olin’s management;

 

WHEREAS Olin believes that it is in its best interests, as well as those of its stockholders, to assure the continuity of Executive for a fixed period of time in the event of an actual or threatened change in control of Olin and whether or not such change in control is determined by the Board to be in the best interest of its stockholders; and

 

WHEREAS this Agreement is not intended to alter materially the compensation, benefits or terms of employment that Executive could reasonably expect in the absence of a change in control of Olin, but is intended to encourage and reward Executive’s compliance with the wishes of the Board whatever they may be in the event that a change in control occurs or is threatened.

 

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, and intending to be legally bound hereby, the parties hereto agree as follows:

 

SECTION 1.  Definitions.  As used in this Agreement:

 

(a)  Board” means the Board of Directors of Olin.

 

(b)  Cause” means (i) the willful and continued failure of Executive to substantially perform Executive’s duties (other than any such failure resulting from Executive’s incapacity due to physical or mental illness or injury or any such actual or anticipated failure after the issuance of a notice of Termination by Executive in respect of any event described in Section 1(e)(ii)); (ii) the willful engaging by Executive in gross misconduct significantly and demonstrably financially injurious to Olin; (iii) a willful breach by Executive of Olin’s Code of Business Conduct; or (iv) willful misconduct by Executive in the course of Executive’s employment which is a felony or fraud. No act or failure to act on the part of 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 and unless the act or failure to act has not been cured by Executive within 14 days after written notice to Executive specifying the nature of such violations.  Notwithstanding the foregoing, Executive shall not be deemed to have been terminated for Cause without (A) reasonable written notice to Executive setting forth the reasons for Olin’s intention to terminate for Cause, (B) an opportunity for Executive, together with Executive’s counsel, to be heard before the Board and (C) delivery to Executive of a notice of termination from the Board finding that, in the good faith opinion of 75% of the entire membership of the Board, Executive was guilty of conduct described above and specifying the particulars thereof in detail.

 


(c)  Change in Control” means the occurrence of any one of the following events:

 

(i)  individuals who, on the Effective Date, constitute the Board (the “Incumbent Directors”) cease for any reason to constitute at least a majority of the Board; provided that any person becoming a director subsequent to the Effective Date, whose election or nomination for election was approved (either by a specific vote or by approval of the proxy statement of Olin in which such person is named as a nominee for director, without written objection to such nomination) by a vote of at least two-thirds of the directors who were, as of the date of such approval, Incumbent Directors, shall be an Incumbent Director; provided, however, that no individual initially appointed, elected or nominated as a director of Olin as a result of an actual or threatened election contest with respect to directors or as a result of any other actual or threatened solicitation of proxies or consents by or on behalf of any person other than the Board shall be deemed to be an Incumbent Director;

 

(ii)  any “person” (as such term is defined in Section 3(a)(9) of the Securities Exchange Act of 1934 (the “Exchange Act”) and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a “beneficial owner” (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Olin representing 20% or more of the combined voting power of Olin’s then outstanding securities eligible to vote for the election of the Board (the “Olin Voting Securities”); provided, however, that the event described in this paragraph (ii) shall not be deemed to be a Change in Control if such event results from any of the following:  (A) the acquisition of Olin Voting Securities by Olin or any of its subsidiaries, (B) the acquisition of Olin Voting Securities by any employee benefit plan (or related trust) sponsored or maintained by Olin or any of its subsidiaries, (C) the acquisition of Olin Voting Securities by any underwriter temporarily holding securities pursuant to an offering of such securities, (D) the acquisition of Olin Voting Securities pursuant to a Non-Qualifying Transaction (as defined in paragraph (iii)), or (E) the acquisition of Olin Voting Securities by Executive or any group of persons including Executive (or any entity controlled by Executive or any group of persons including Executive);

 

(iii)  the consummation of a merger, consolidation, statutory share exchange or similar form of corporate transaction involving (A) Olin or (B) any of its wholly owned subsidiaries pursuant to which, in the case of this clause (B), Olin Voting Securities are issued or issuable (any event described in the immediately preceding clause (A) or (B), a “Reorganization”) or the sale or other disposition of all or substantially all of the assets of Olin to an entity that is not an affiliate of Olin (a “Sale”), unless immediately following such Reorganization or Sale: (1) more than 50% of the total voting power (in respect of the election of directors, or similar officials in the case of an entity other than a corporation) of (x) Olin (or, if Olin ceases to exist, the entity resulting from such Reorganization), or, in the case of a Sale, the entity which has acquired all or substantially all of the assets of Olin (in either case, the “Surviving Entity”), or (y) if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of more than 50% of the total voting power (in respect of the election of directors, or similar officials in the case of an entity other than a corporation) of the Surviving Entity (the “Parent Entity”), is represented by Olin Voting Securities that were outstanding immediately prior to such Reorganization or Sale (or, if applicable, is represented by shares into which such Olin Voting Securities were converted pursuant to such Reorganization or Sale), (2) no person (other than any employee benefit plan (or related trust) sponsored or maintained by the Surviving Entity or the Parent Entity), is or becomes the beneficial owner, directly or indirectly, of 20% or more of the total voting power (in respect of the election of directors, or similar officials in the case of an entity other than a corporation) of the outstanding voting securities of the Parent Entity (or, if there is no Parent Entity, the Surviving Entity) and (3) at least a majority of the members of the board of directors (or similar officials in the case of an entity other than a corporation) of the Parent Entity (or, if there is no Parent Entity, the Surviving Entity) following the consummation of the Reorganization or Sale were, at the time of the approval by the Board of the execution of the initial agreement providing for such Reorganization or Sale, Incumbent Directors (any Reorganization or Sale which satisfies all of the criteria specified in (1), (2) and (3) above being deemed to be a “Non-Qualifying Transaction”);

 

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(iv)  the stockholders of Olin approve a plan of complete liquidation or dissolution of Olin.

 

Notwithstanding the foregoing, if any person becomes the beneficial owner, directly or indirectly, of 20% or more of the combined voting power of Olin Voting Securities solely as a result of the acquisition of Olin Voting Securities by Olin which reduces the number of Olin Voting Securities outstanding, such increased amount shall be deemed not to result in a Change in Control; provided, however, that if such person subsequently becomes the beneficial owner, directly or indirectly, of additional Olin Voting Securities that increases the percentage of outstanding Olin Voting Securities beneficially owned by such person, a Change in Control of Olin shall then be deemed to occur.

 

(d)  Change in Control Severance” means three times the sum of:

 

(i)  twelve months of 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 (A) Executive’s average annual award actually paid in cash (or, in the event that the award in respect of the calendar year immediately prior to the year in which the date of Termination occurs has not yet been paid, the amount of such award that would have been payable in cash in the year in which the date of Termination occurs had Executive not incurred a Termination) under Olin’s short-term annual incentive compensation plans or programs (“ICP”) (including zero if nothing was paid or deferred but including any portion thereof Executive has elected to defer and, for the avoidance of doubt, excluding any portion of an annual award that Executive does not have a right to receive currently in cash) in respect of the three calendar years immediately preceding the calendar year in which the date of Termination occurs (or if Executive has not participated in ICP for such three completed calendar years, the average of any such awards in respect of the shorter period of years in which Executive was a participant) and (B) Executive’s then current ICP standard annual award in respect of the year in which the date of Termination occurs.

 

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Notwithstanding the foregoing, in the event that an amount is payable to the Executive under Section 4(a), such amount shall be treated as “executive severance” for purposes of any Olin benefit plan that takes payments of “executive severance” into account in determining benefits payable under such plan.

 

(e)  Termination” means:

 

(i)  Executive is discharged by Olin, upon or following a Change in Control, other than for Cause and other than due to Executive’s death or disability (which will be deemed to occur if Executive becomes eligible to commence immediate receipt of disability benefits under the terms of Olin’s long-term disability plan); or

 

(ii)  Executive terminates Executive’s employment in the event that upon or following a Change in Control:

 

(A)  (1) Olin requires Executive to relocate Executive’s principal place of employment by more than fifty (50) miles from the location in effect immediately prior to the Change in Control; provided, however, that an Executive whose principal place of employment (immediately prior to the required relocation) was not located at Olin’s corporate headquarters (wherever located) will not have a basis for Termination if Executive is required to relocate Executive’s principal place of employment to the location of Olin’s then-current corporate headquarters or (2) Olin requires Executive to travel on business to a substantially greater extent than, and inconsistent with, Executive’s travel requirements prior to the Change in Control (taking into account the number and/or duration (both with respect to airtime and overall time away from home) of such travel trips following the Change in Control as compared to a comparable period prior to the Change in Control);

 

(B)  Olin reduces Executive’s base salary or fails to increase Executive’s base salary on a basis consistent (as to frequency and amount) with Olin’s salary system for executive officers as in effect immediately prior to the Change in Control;

 

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(C)  Olin fails to continue Executive’s participation in Olin’s benefit plans (including, without limitation, short-term and long-term cash and stock incentive compensation) on substantially the same basis, both in terms of (1) the amount of the benefits provided (other than due to Olin’s or a relevant operation’s or business unit’s financial or stock price performance provided such performance is a relevant criterion under such plan) and (2) the level of Executive’s participation relative to other participants as exists immediately prior to the Change in Control; provided that, with respect to annual and long term incentive compensation plans, the basis with which the amount of benefits and level of participation of Executive shall be compared shall be the average benefit awarded to Executive under the relevant plan during the three completed fiscal years immediately preceding the year in which the date of Termination occurs;

 

(D)  Olin fails to substantially maintain its benefit plans as in effect immediately prior to the Change in Control, unless arrangements (embodied in an on-going substitute or alternative plan) are then in effect to provide benefits that are substantially similar to those in effect immediately prior to the Change in Control; or

 

(E)  (1) Executive is assigned any duties inconsistent in any adverse respect with Executive’s position (including status, offices, titles and reporting lines), authority, duties or responsibilities immediately prior to the Change in Control or (2) Olin takes any action that results in a diminution in such position (including status, offices, titles and reporting lines), authority, duties or responsibilities or in a substantial reduction in any of the resources available to carry out any of Executive’s authorities, duties or responsibilities from those resources available immediately prior to the Change in Control.

 

Notwithstanding anything to the contrary contained herein, Executive will not be entitled to terminate employment and receive the payments and benefits set forth in Sections 4 and 5 as the result of the occurrence of any event specified in the foregoing clause (ii) (each such event, a “Good Reason Event”) unless, within 90 days following the occurrence of such event, Executive provides written notice to Olin of the occurrence of such event, which notice sets forth the exact nature of the event and the conduct required to cure such event.  Olin will have 30 days from the receipt of such notice within which to cure (such period, the “Cure Period”).  If, during the Cure Period, such event is remedied, then Executive will not be permitted to terminate employment and receive the payments and benefits set forth in Sections 4 and 5 as a result of such Good Reason Event.  If, at the end of the Cure Period, the Good Reason Event has not been remedied, Executive will be entitled to terminate employment as a result of such Good Reason Event during the 45 day period that follows the end of the Cure Period.  If Executive terminates employment during such 45 day period, so long as Executive delivered the written notice to Olin of the occurrence of the Good Reason Event at any time prior to the expiration of this Agreement, for purposes of the payments, benefits and other entitlements set forth in Sections 4 and 5 of this Agreement, the termination of Executive’s employment pursuant thereto shall be deemed to be a Termination before the expiration of this Agreement.  If Executive does not terminate employment during such 45 day period, Executive will not be permitted to terminate employment and receive the payments and benefits set forth in Sections 4 and 5 as a result of such Good Reason Event.

 

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If (x) Executive’s employment is terminated prior to a Change in Control for reasons that would have constituted a Termination if they had occurred upon or following a Change in Control, (y) Executive reasonably demonstrates that such termination of employment (or event described in clause (ii) above) occurred at the request of a third party who had indicated an intention or taken steps reasonably calculated to effect a Change in Control and (z) a Change in Control involving such third party (or a party competing with such third party to effectuate a Change in Control) does occur, then for purposes of this Agreement, the date immediately preceding the date of such termination of employment (or event described in clause (ii) above) shall be treated as the date of the Change in Control, except that for purposes of determining the timing of payments and benefits to Executive, the date of the actual Change in Control shall be treated as the Executive’s date of termination of employment.  In the event that Executive’s employment terminates under the circumstances described in clauses (x), (y) and (z) of the preceding sentence, such termination will be considered a Termination for purposes of this Agreement, and Executive will be entitled to receive the payments and benefits described in Sections 4 and 5 of this Agreement, provided that any such payments and benefits due under Section 4 or 5 shall be reduced by the payments and benefits Executive has already received pursuant to the Executive Agreement, dated as of November 1, 2007, between Executive and Olin (the “Executive Agreement”) in respect of Executive’s termination of employment with Olin, and the remainder of the payments and benefits payable pursuant to the Executive Agreement shall be forfeited.

 

 

SECTION 2.  Entire Agreement; Prior Agreements.  This Agreement (together with the Executive Agreement) sets forth the entire understanding between Executive and Olin with respect to the subject matter hereof and thereof.  All oral or written agreements or representations, express or implied, with respect to the subject matter of this Agreement are set forth in this Agreement and the Executive Agreement.  All prior agreements, understandings and obligations (whether written, oral, express or implied) between Executive and Olin with respect to the subject matter hereof are terminated as of the date hereof (including, specifically, that certain Executive Agreement, dated November 1, 2002, between Executive and Olin) and are superseded by this Agreement.

 

SECTION 3.  Term; Executive’s Duties.  (a)  This Agreement expires at the close of business on January 26, 2011, provided that beginning on January 26, 2009 and on each January 26 thereafter (any such January 26 being referred to herein as a “Renewal Date”) the term of this Agreement shall be extended for one additional year unless Olin has provided Executive with written notice at least 90 days in advance of the immediately succeeding Renewal Date that the term of this Agreement shall not be so extended; provided, however, that if a Change in Control has occurred prior to the date on which this Agreement expires, this Agreement shall not expire prior to three years following the date of the Change in Control; provided, further, that the expiration of this Agreement will not affect any of Executive’s rights resulting from a Termination prior to such expiration. In the event of Executive’s death while employed by Olin, this Agreement shall terminate and be of no further force or effect on the date of Executive’s death.  Executive’s death will not affect any of Executive’s rights resulting from a Termination prior to death.

 

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(b)  During the period of Executive’s employment by Olin, Executive shall devote Executive’s full time efforts during normal business hours to Olin’s business and affairs, except during vacation periods in accordance with Olin’s vacation policy and periods of illness or incapacity. Nothing in this Agreement will preclude 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 Executive during the period of Executive’s employment with Olin without its prior consent.

 

SECTION 4.  Change in Control Severance Payment.  (a)  Subject to Section 4(b), in the event of a Termination occurring before the expiration of this Agreement, Olin will pay Executive a lump sum in an amount equal to the Change in Control Severance.  The payment of the Change in Control Severance will be made within 10 days following the date of Termination.

 

(b)  Notwithstanding Section 4(a), if Executive would otherwise have been required by Olin policy to retire at age 65, then if the date of Executive’s sixty-fifth birthday falls during the 36-month period following the date of Termination, the amount payable pursuant to Section 4(a) shall be reduced to the amount equal to the product of (i) the Change in Control Severance, multiplied by (ii) a fraction, the numerator of which is the number of days from the date of Termination through and including the date of Executive’s sixty-fifth birthday and the denominator of which is 1095.

 

(c)  If on the date of  Termination, Executive is eligible and is receiving payments under any then existing disability plan of Olin or its subsidiaries and affiliates, then Executive agrees that all payments under such disability plan may, and will be, suspended and offset (subject to applicable law) for 36 months (or, if earlier, until Executive attains age 65, if Executive would otherwise have been required by Olin policy to retire at age 65) following the date of Termination.  If, after such period, Executive remains eligible to receive disability payments, then such payments shall resume in the amounts and in accordance with the provisions of the applicable disability plan of Olin or its subsidiaries and affiliates.

 

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SECTION 5.  Other Benefits.  (a)  If Executive becomes entitled to payment under Section 4(a) or 4(b), as applicable, then (i) Executive will be treated as if Executive remained employed for service purposes for 36 months following the date of Termination.  If the date of Termination is prior to January 1, 2008, the Executive will receive 36 months of service credit under all Olin qualified and non-qualified defined benefit pension plans for which Executive was eligible at the time of Termination.  If the date of Termination is after December 31, 2007, the Executive will receive 36 months of retirement contributions to all Olin qualified and non-qualified defined contribution plans for which Executive was eligible at the time of the Termination.  Such contributions shall be based on the amount of the Executive Severance.  Such service credits or contributions shall be applied to Olin’s qualified pension plans to the extent permitted under then applicable law, otherwise such credit shall be applied to Olin’s non-qualified defined benefit or defined contribution plan, as appropriate.  Payments under such non-qualified plans shall be due at the times and in the manner payments are due Executive under Olin’s non-qualified defined benefit and defined contribution pension plans, it being understood that Executive shall be permitted to receive payments from Olin’s plans (assuming Executive otherwise qualifies to receive such payments, is permitted to do so under the applicable plan terms and elects to do so), during the period that Executive is receiving payments pursuant to Section 4(a)), and that Executive’s defined benefit pension benefit will be determined based on Executive’s actual age at the time Executive’s pension benefit commences; and (ii) for 36 months from the date of the Termination, Executive (and Executive’s covered dependents) will continue to enjoy coverage on the same basis as a similarly situated active employee under all Olin medical, dental, and life insurance plans to the extent Executive was enjoying such coverage immediately prior to the Termination.  Except as specifically permitted by Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations thereunder as in effect from time to time (collectively, hereinafter, “Section 409A”), the coverage provided to Executive during any calendar year will not affect the coverage to be provided to Executive in any other calendar year.  Executive’s entitlement to insurance continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 would commence at the end of the period during which insurance coverage is provided under this Agreement without offset for coverage provided hereunder.  Executive shall accrue no vacation during the 36 months following the date of Termination but shall be entitled to payment for accrued and unused vacation for the calendar year in which the Termination occurs. If Executive receives the Change in Control Severance (including the amount referred to in Section 1(d)(ii)), Executive shall not be entitled to an ICP award for the calendar year of Termination if Termination occurs during the first calendar quarter.  Even if Executive receives the Change in Control Severance (including the amount referred to in Section 1(d)(ii)), if Termination occurs during or after the second calendar quarter, Executive shall be entitled to a prorated ICP award for the calendar year of Termination which shall be determined by multiplying Executive’s then current ICP standard annual award 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.  Executive shall accrue no ICP award following the date of Termination.  The accrued vacation pay and ICP award, if any, shall be paid in a lump sum when the Change in Control Severance is paid.

 

(b)  Notwithstanding the foregoing Section 5(a), no such service credit or insurance coverage will be afforded by this Agreement with respect to any period after Executive’s sixty-fifth birthday, if Executive would otherwise have been required by Olin policy to retire at age 65.

 

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(c)  In the event of a Termination, 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 more favorable to Executive, in accordance with such practice immediately prior to the Change in Control, 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 Section 5(c) are intended to facilitate the obtaining by Executive of other employment following a Termination, and payments or benefits by Olin in lieu thereof will not be available to Executive.  The outplacement services will be provided for a period of 12 months beginning within 10 days following the date of Termination.

 

(d)  If Executive becomes entitled to the payment under Section 4(a), then at the end of the period for insurance coverage provided in accordance with Section 5(a), if Executive at such time has satisfied the eligibility requirements to participate in Olin’s post-retirement medical and dental plan, Executive shall be entitled to continue in Olin’s medical and dental coverage (including dependent coverage) on terms and conditions no less favorable to Executive as in effect prior to the Change in Control for Executive until Executive reaches age 65; provided, that if Executive obtains other employment which offers medical or dental coverage to Executive and Executive’s dependents, Executive shall enroll in such medical or dental coverage, as the case may be, and the corresponding coverage provided to Executive hereunder shall be secondary coverage to the coverage provided by Executive’s new employer so long as such employer provides Executive with such coverage; provided further that except as specifically permitted by Section 409A, the coverage provided to Executive during any calendar year will not affect the coverage to be provided to Executive in any other calendar year.

 

(e)  If there is a Change in Control, Olin shall not reduce or diminish the insurance coverage or benefits which are provided to Executive under Section 5(a) or 5(d) during the period Executive is entitled to such coverage; provided Executive makes the premium payments required by active employees generally for such coverage, if any, under the terms and conditions of coverage applicable to Executive.

 

SECTION 6.  Participation in Change in Control; Section 4999 of Internal Revenue Code.  (a)  In the event that 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 (referred to in this Section 6(a) as an “acquisition”) which would result in an event described in Section 1(c)(i) or (ii), Executive must promptly disclose such participation or agreement to Olin. If 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 Executive until the acquiring group in which Executive participates or agrees to participate has completed the acquisition. In the event Executive so participates or agrees to participate and fails to disclose Executive’s participation or agreement, 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.

 

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(b)  (i)  Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any Payment would be subject to the Excise Tax, then Executive shall be entitled to receive an additional payment (the “Gross-Up Payment”) in an amount such that, after payment by Executive of all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.  Olin’s obligation to make Gross-Up Payments under this Section 6 shall not be conditioned upon Executive’s termination of employment.

 

(ii)  Subject to the provisions of Section 6(b)(iii), all determinations required to be made under this Section 6(b), including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by KPMG LLP or such other nationally recognized certified public accounting firm as may be designated by Executive (the “Accounting Firm”).  The Accounting Firm shall provide detailed supporting calculations both to Olin and Executive within 15 business days of the receipt of notice from Executive that there has been a Payment or such earlier time as is requested by Olin.  The Accounting Firm shall not determine that no Excise Tax is payable by Executive unless it delivers to Executive a written opinion that failure to report the Excise Tax on Executive’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty.  All fees and expenses of the Accounting Firm shall be borne solely by Olin.  Any Gross-Up Payment, as determined pursuant to this Section 6(b), shall be paid by Olin to Executive within 5 days of the receipt of the Accounting Firm’s determination and in no event shall such date be later than the last day of the calendar year after the calendar year in which the applicable Excise Tax is paid.  Any determination by the Accounting Firm shall be binding upon Olin and Executive.  As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by Olin should have been made (the “Underpayment”), consistent with the calculations required to be made hereunder.  In the event Olin exhausts its remedies pursuant to Section 6(b)(iii) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine that amount of the Underpayment that has occurred and any such Underpayment shall be paid by Olin to or for the benefit of Executive within 5 days of receipt of the Accounting Firm’s determination.

 

(iii)  Executive shall notify Olin in writing of any claims by the Internal Revenue Service that, if successful, would require the payment by Olin of the Gross-Up Payment.  Such notification shall be given as soon as practicable but not later than 30 days after Executive actually receives notice in writing of such claim and shall apprise Olin of the nature of such claim and the date on which such claim is requested to be paid; provided, however, that the failure of Executive to notify Olin of such claim (or to provide any required information with respect thereto) shall not affect any rights granted to Executive under this Section 6(b) except to the extent that Olin is materially prejudiced in the defense of such claim as a direct result of such failure.  Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Executive gives such notice to Olin (or such shorter period ending on the date that any payment of taxes with respect to such claim is due).  If Olin notifies Executive in writing prior to the expiration of such period that Olin desires to contest such claim, Executive shall:

 

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(A)  give Olin any information reasonably requested by Olin relating to such claim;

 

(B)  take such action in connection with contesting such claim as Olin shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by Olin and reasonably acceptable to Executive;

 

(C)  cooperate with Olin in good faith in order to effectively contest such claim; and

 

(D)  permit Olin to participate in any proceedings relating to such claim;

 

provided, however, that Olin shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income or employment tax (including interest and penalties) imposed as a result of such representation and payment of costs and expenses.  Without limitation on the foregoing provisions of this Section 6(b)(iii), Olin shall control all proceedings taken in connection with such contest, and, at its sole discretion, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its sole discretion, either direct Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as Olin shall determine; provided, however, that, if Olin directs Executive to pay such claim and sue for a refund, Olin shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties) imposed with respect to such advance or with respect to any imputed income in connection with such advance; and provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount.  Furthermore, Olin’s control of the contest shall be limited to issues with respect to which the Gross-Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.

 

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(iv)  If, after the receipt by Executive of an amount advanced by Olin pursuant to Section 6(b)(iii), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Olin’s complying with the requirements of Section 6(b)(iii)) promptly pay to Olin the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto).  If, after the receipt by Executive of an amount advanced by Olin pursuant to Section 6(b)(iii), a determination is made that Executive shall not be entitled to any refund with respect to such claim, and Olin does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

 

(v)  Notwithstanding any other provision of this Section 6(b), Olin may, in its sole discretion, withhold and pay over to the Internal Revenue Service or any other applicable taxing authority, for the benefit of Executive, all or any portion of the Gross-Up Payment, and Executive hereby consents to such withholding.

 

(c)  For purposes of this Section 6:

 

(i)  “Excise Tax” means the excise tax imposed by Section 4999 of the Code, together with any interest or penalties imposed with respect to such excise tax.

 

(ii)  “Payment” means any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether paid or payable pursuant to this Agreement or otherwise.

 

SECTION 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 Executive, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that Olin would 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 Executive to compensation from Olin in the same amount and on the same terms as 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 Section 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 Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.

 

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SECTION 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 Executive:

[•]

 

 

 

If to Olin:

 

 

 

Olin Corporation

 

190 Carondelet Plaza

 

Suite 1530

 

Clayton, MO 63105-3443

 

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.

 

SECTION 9.  Governing Law.  The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the Commonwealth of Virginia (without giving effect to its principles of conflicts of law).

 

SECTION 10.  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.

 

SECTION 11.  No Mitigation.  Executive will not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor shall any compensation received by Executive from a third party reduce such payment except as explicitly provided in this Agreement.  Except as may otherwise be expressly provided herein, nothing in this Agreement will be deemed to reduce or limit the rights which Executive may have under any employee benefit plan, policy or arrangement of Olin and its subsidiaries and affiliates.  Except as expressly provided in this Agreement and subject to Section 17(b), payments made pursuant to this Agreement shall not be affected by any set-off, counterclaim, recoupment, defense or other claim which Olin and its subsidiaries and affiliates may have against Executive.

 

SECTION 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.

 

SECTION 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 Section 7 above.  Without limiting the foregoing, 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 will or by the laws of descent or distribution, and, in the event of any attempted assignment or transfer by Executive contrary to this Section 13, Olin shall have no liability to pay any amount so attempted to be assigned or transferred.

 

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SECTION 14.  No Employment Right.  This Agreement shall not be deemed to confer on Executive a right to continued employment with Olin.

 

SECTION 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 Executive shall be entitled to seek specific performance of 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, as they become due, which Executive may incur prior to the third anniversary of the expiration of this Agreement to enforce this Agreement through arbitration or otherwise unless the arbitrator determines that Executive had no reasonable basis for Executive’s claim. Should Olin dispute the entitlement of Executive to such fees and expenses, the burden of proof shall be on Olin to establish that Executive had no reasonable basis for Executive’s claim.  All reimbursable expenses shall be reimbursed to Executive as promptly as practicable and in any event not later than the last day of the calendar year after the calendar year in which the expenses are incurred, and the amount of expenses eligible for reimbursement during any calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year.

 

(c)  If any payment which is due to Executive hereunder has not been paid within ten (10) days of the date on which such payment was due, Executive shall be entitled to receive interest thereon from the due date until paid at an annual rate of interest equal to the Prime Rate reported in the Wall Street Journal, Northeast Edition, on the last business day of the month preceding the due date, compounded annually.

 

SECTION 16.  Miscellaneous.  (a)   Except as specifically provided in Section 17(d), no provisions of this Agreement may be modified, waived or discharged unless such modification, waiver or discharge is agreed to in writing signed by 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.

 

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(b)  The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect to the fullest extent permitted by law.

 

(c)  Executive may not cumulate the benefits provided under this Agreement with any severance or similar benefits (“Other Severance Benefits”) that Executive may be entitled to by agreement with Olin (including, without limitation, pursuant to the Executive Agreement or any other employment, severance or termination agreement, plan, arrangement or policy) or under applicable law in connection with the termination of Executive’s employment.  Subject to Section 17(b), to the extent that Executive receives any Other Severance Benefits, then the payments and benefits payable hereunder to Executive shall be reduced by a like amount.  To the extent Olin is required to provide payments or benefits to Executive under the Worker Adjustment and Retraining Notification Act (or any state, local or foreign law relating to severance or dismissal benefits), the benefits payable hereunder shall be first applied to satisfy such obligation.

 

SECTION 17.  Section 409A.  (a)  It is intended that the provisions of this Agreement comply with Section 409A, and all provisions of this Agreement shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A.

 

(b)  Neither Executive nor any of Executive’s creditors or beneficiaries shall have the right to subject any deferred compensation (within the meaning of Section 409A) payable under this Agreement or under any other plan, policy, arrangement or agreement of or with Olin or any of its affiliates (this Agreement and such other plans, policies, arrangements and agreements, the “Olin Plans”) to any anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or garnishment.  Except as permitted under Section 409A, any deferred compensation (within the meaning of Section 409A) payable to Executive or for Executive’s benefit under any Olin Plan may not be reduced by, or offset against, any amount owing by Executive to Olin or any of its affiliates.

 

(c)  If, at the time of Executive’s separation from service (within the meaning of Section 409A), (i) Executive shall be a specified employee (within the meaning of Section 409A and using the identification methodology selected by Olin from time to time) and (ii) Olin shall make a good faith determination that an amount payable under an Olin Plan constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required to be delayed pursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then Olin (or its affiliate, as applicable) shall not pay such amount on the otherwise scheduled payment date but shall instead accumulate such amount and pay it, without interest, on the first business day after such six-month period.

 

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(d)  Notwithstanding any provision of this Agreement or any Olin Plan to the contrary, in light of the uncertainty with respect to the proper application of Section 409A, Olin reserves the right to make amendments to this Agreement and any Olin Plan as Olin deems necessary or desirable to avoid the imposition of taxes or penalties under Section 409A.  In any case, except as specifically provided in Section 6(b), Executive is solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on Executive or for Executive’s account in connection with any Olin Plan (including any taxes and penalties under Section 409A), and neither Olin nor any affiliate shall have any obligation to indemnify or otherwise hold Executive harmless from any or all of such taxes or penalties.

 

[remainder of this page intentionally left blank]

 

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

 

 

 

 

 

______________________________

 

 

 

 

 

_________________________

 

 

 

 

 

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