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<SEC-DOCUMENT>0000950109-01-000802.txt : 20010402
<SEC-HEADER>0000950109-01-000802.hdr.sgml : 20010402
ACCESSION NUMBER: 0000950109-01-000802
CONFORMED SUBMISSION TYPE: 10-K
PUBLIC DOCUMENT COUNT: 14
CONFORMED PERIOD OF REPORT: 20001231
FILED AS OF DATE: 20010330
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: INTERNATIONAL FLAVORS & FRAGRANCES INC
CENTRAL INDEX KEY: 0000051253
STANDARD INDUSTRIAL CLASSIFICATION: INDUSTRIAL ORGANIC CHEMICALS [2860]
IRS NUMBER: 131432060
STATE OF INCORPORATION: NY
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 10-K
SEC ACT:
SEC FILE NUMBER: 001-04858
FILM NUMBER: 1586159
BUSINESS ADDRESS:
STREET 1: 521 W 57TH ST
CITY: NEW YORK
STATE: NY
ZIP: 10019
BUSINESS PHONE: 2127655500
MAIL ADDRESS:
STREET 2: 521 W 57TH ST
CITY: NEW YORK
STATE: NY
ZIP: 10019
FORMER COMPANY:
FORMER CONFORMED NAME: VANAMERIGEN HAEBLER INC
DATE OF NAME CHANGE: 19680426
</SEC-HEADER>
<DOCUMENT>
<TYPE>10-K
<SEQUENCE>1
<FILENAME>0001.txt
<DESCRIPTION>FORM 10-K
<TEXT>
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
Annual Report Pursuant to Section 13 of
The Securities Exchange Act of 1934
For the fiscal year ended December 31, 2000 Commission File Number 1-4858
International Flavors & Fragrances Inc.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
New York 13-1432060
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
521 West 57th Street, New York, N.Y. 10019
(Address of principal executive offices) (Zip Code)
</TABLE>
Registrant's telephone number, including area code (212) 765-5500
Securities registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
Name of each exchange
Title of each class on which registered
------------------- ---------------------
<S> <C>
Common Stock, par value 12 1/2c per share New York Stock Exchange
</TABLE>
Securities registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months, and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [_]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to
the best of Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendments to this Form 10-K. [_]
The Registrant denies that any of its common stock is held by an
"affiliate" of the Registrant within the meaning of Rule 405 of the Securities
and Exchange Commission. See "Stock Ownership" in proxy statement incorporated
by reference herein. The aggregate market value of all of the outstanding
voting stock of Registrant as of March 23, 2001 was $2,040,778,660.
Indicate the number of shares outstanding of each of the Registrant's
classes of common stock, as of March 23, 2001.
95,766,244 shares of Common Stock, par value 12 1/2c per share
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant's Annual Report to Shareholders for the fiscal
year ended December 31, 2000 (the "IFF 2000 Annual Report") are incorporated
by reference in Parts I, II and IV of this Form 10-K.
Portions of the Registrant's Proxy Statement dated March 30, 2001 (the "IFF
2001 Proxy Statement") are incorporated by reference in Part III of this Form
10-K.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART I
Item 1. Business.
International Flavors & Fragrances Inc., incorporated in New York in 1909
(the "Company"), is a leading creator and manufacturer of flavor and fragrance
products used by other manufacturers to impart or improve flavor or fragrance
in a wide variety of consumer products. Fragrance products are sold
principally to manufacturers of perfumes, cosmetics, toiletries, hair care
products, deodorants, soaps, detergents and air care products; flavor products
are sold principally to manufacturers of prepared foods, beverages, dairy
foods, pharmaceuticals and confectionery products.
The present world-wide scope of the Company's business is in part the
result of the combination in December 1958 of (i) the business conducted prior
to the combination primarily in the United States by the Company under the
name van Ameringen-Haebler, Inc. ("VAH") with (ii) the business conducted
prior to the combination primarily in Europe by N. V. Polak & Schwarz's
Essencefabrieken, a Dutch corporation ("P & S"). The P & S enterprise, founded
in Holland in 1889, was also engaged in the manufacture and sale of flavor and
fragrance products, with operations in a number of countries where VAH was not
an important factor.
In April 2000, the Company acquired Laboratoire Monique Remy ("LMR"), a
leader in the creation and commercialization of natural raw materials for
fragrances and flavors. LMR operates state-of-the-art laboratory and
manufacturing facilities in Grasse, France and an extraction plant in Lozere,
France.
On November 3, 2000, pursuant to a cash tender offer by a wholly-owned
subsidiary of the Company for all of the outstanding shares of common stock of
Bush Boake Allen Inc. ("BBA"), the subsidiary acquired approximately 97% of
the outstanding shares of common stock of BBA at $48.50 per share. BBA was a
competitor of IFF in the flavor and fragrance business with 1999 worldwide
sales of $499 million. On November 9, 2000, the subsidiary merged with and
into BBA, and BBA became a wholly-owned subsidiary of the Company, with each
remaining outstanding share of BBA common stock converted into the right to
receive $48.50 per share. The Company acquired all of the outstanding shares
of BBA for approximately $970 million in cash, including transaction costs.
The acquisition was financed initially through a combination of short-term
debt and bank borrowings.
The Company's objectives in acquiring BBA were to establish global
leadership in the flavors market, where BBA was an important factor, to
strengthen the Company's already leading global fragrance market position, to
enhance the Company's product line and customer base, particularly in certain
emerging markets where BBA previously had a significant presence, and to
broaden and enhance the Company's management pool. In addition, the Company
concluded that the integration of the Company and BBA would achieve cost
savings and would allow the Company to operate more efficiently and
profitably.
In October 2000, the Company announced a major reorganization as a result
of which the Company is now organized globally under the broad umbrellas of
Business Development and Operations, rather than into separate divisions for
flavors and fragrances. The purpose of the reorganization is to better support
and service the Company's customers, many of whom require consistent global
support to match their global businesses. The responsibilities of Business
Development, whose purpose is to drive the top line growth of the Company,
include category strategy, consumer research, product development, global
sales and marketing, research and development coordination and technical
application. The responsibilities of Operations, whose focus is on product
delivery, product planning and increasing productivity, include global supply
chain, manufacturing, customer service, quality control, logistics and
distribution. In addition, effective January 1, 2001, the Company has a single
Regional Manager covering each of its major geographic clusters--North
America; Europe; Latin America; Asia-Pacific and the newly constituted Central
Asia and Middle East region, which includes the Indian subcontinent. The
Regional Managers work with and are supported by both Business Development and
Operations.
1
<PAGE>
The Company currently has 45 manufacturing facilities with the major
manufacturing facilities being located in the United States, The Netherlands,
France, Great Britain, Ireland, Spain, Switzerland, Germany, Argentina,
Brazil, Mexico, China, Singapore, Philippines, Indonesia, Japan, India and
Australia. The remaining manufacturing facilities are located in 8 other
countries. The Company maintains its own sales and distribution facilities in
42 countries and is represented by sales agents in a few additional countries.
The Company's principal executive offices are located at 521 West 57th Street,
New York, New York 10019 (Tel. No. 212-765-5500). Except as the context
otherwise indicates, the term "the Company" as used herein refers to the
Registrant and its subsidiaries.
Markets
Fragrance products are used by customers in the manufacture of consumer
products such as soaps, detergents, cosmetic creams, lotions and powders,
lipsticks, after-shave lotions, deodorants, hair preparations, candles, air
fresheners and all-purpose cleaners, as well as in other consumer products
designed solely to appeal to the sense of smell, such as perfumes and
colognes. The cosmetics industry, including perfume and toiletries
manufacturers, is one of the Company's two largest fragrance customer groups.
Most of the major United States companies in this industry are customers of
the Company, and five of the largest United States cosmetics companies are
among its principal customers. The household products industry, including
soaps and detergents, is the other important fragrance customer group. Four of
the largest United States household product manufacturers are major customers
of the Company. In the five years ended December 31, 2000, sales of fragrance
products accounted for approximately 57%, 58%, 58%, 59% and 59%, respectively,
of the Company's total sales on a reported basis.
Flavor products are sold principally to the food and beverage industries
for use in consumer products such as soft drinks, candies, baked goods,
desserts, prepared foods, dietary foods, dairy products, drink powders,
pharmaceuticals, snack foods and alcoholic beverages. Two of the Company's
largest customers for flavor products are major producers of prepared foods
and beverages in the United States. In the five years ended December 31, 2000,
sales of flavor products accounted for approximately 43%, 42%, 42%, 41% and
41%, respectively, of the Company's total sales on a reported basis.
Products
The Company's principal fragrance and flavor products consist of compounds
of large numbers of ingredients blended by it under formulas created by its
perfumers and flavorists. Most of these compounds contribute the total
fragrance or flavor to the consumer products in which they are used. This
fragrance or flavor characteristic is often a major factor in the public
selection and acceptance of the consumer end product. A smaller amount of
compounds is sold to manufacturers who further blend them to achieve the
finished fragrance or flavor in their consumer products. Thousands of
compounds are produced by the Company, and new compounds are constantly being
created in order to meet the many and changing characteristics of its
customers' end products. Most of the fragrance and flavor compounds are
created and produced for the exclusive use of particular customers. The
Company's flavor products also include extracts, concentrated juices,
seasonings and concentrates derived from various fruits, vegetables, nuts,
herbs and spices as well as microbiologically-derived ingredients. The
Company's products are sold in solid and liquid forms and in amounts ranging
from a few pounds to many tons, depending upon the nature of the product.
The ingredients used by the Company in its compounds are both synthetic and
natural. Most of the synthetic ingredients and key strategic natural
ingredients are manufactured by the Company. While the major part of the
Company's production of synthetic ingredients is used by it in its compounds,
a substantial portion is sold to others. The natural ingredients are derived
from flowers, fruits and other botanical products as well as from animal
products. They contain varying numbers of organic chemicals, which are
responsible for the fragrance or flavor of the natural product. The natural
products are purchased for the larger part in processed or semi-processed
form. Some are used in compounds in the state in which they are purchased and
others after further processing. Natural products, together with various
chemicals, are also used as raw materials for the manufacture of synthetic
ingredients by chemical processes.
2
<PAGE>
Market Developments
The demand for consumer products utilizing flavors and fragrances has been
stimulated and broadened by changing social habits resulting from various
factors such as increases in personal income, employment of women, teen-age
population, leisure time, health concerns and urbanization and by the
continued growth in world population. In the fragrance field, these
developments have expanded the market for hair care, candles and air care
products and deodorant and personal wash products with finer fragrance
quality, as well as the market for colognes, toilet waters, men's toiletries
and other products beyond traditional luxury items such as perfumes. In the
flavor field, similar market characteristics have stimulated the demand for
products such as convenience foods, soft drinks and low-cholesterol and low-
fat food products that must conform to expected tastes. New and improved
methods of packaging, application and dispensing have been developed for many
consumer products which utilize some of the Company's flavor or fragrance
products. These developments have called for the creation by the Company of
many new compounds and ingredients compatible with the newly introduced
materials and methods of application used in consumer end products.
Product Development and Research
The development of new fragrance and flavor compounds is a complex artistic
and technical process calling upon the combined knowledge and talents of the
Company's creative perfumers and flavorists and its application chemists and
research chemists. Through long experience, the perfumers and flavorists
develop and refine their skill for creating fragrances or flavors best suited
to the market requirements of the customers' products.
An important contribution to the creation of new fragrance and flavor
products is the development in the Company's research laboratories of new
ingredients having fragrance or flavor value. The principal functions of the
fragrance research program are to isolate and synthesize fragrance components
found in natural substances and through chemical synthesis in order to develop
new materials and better techniques for utilization of such materials. The
principal functions of the flavor research program are to isolate and produce
natural flavor ingredients utilizing improved processes.
The work of the perfumers and flavorists is conducted in 40 fragrance and
flavor laboratories in 27 countries. The Company maintains a research center
at Union Beach, New Jersey. On a reported basis, the Company spent
$112,671,000 in 2000, $103,794,000 in 1999 and $98,438,000 in 1998 on its
research and development activities. These expenditures are expected to
increase in 2001 to approximately $150,000,000. Of the amount expended in 2000
on such activities, 63% was for fragrances and the balance was for flavors.
The Company employed 1,186 persons in 2000 and 884 persons in 1999 in such
activities.
The business of the Company is not materially dependent upon any patents,
trademarks or licenses.
Distribution
Most of the Company's sales are made through its own sales force, operating
from 8 sales offices in the United States and 64 sales offices in 41 foreign
countries. Sales in other countries are made through sales agents. On a
reported basis, for the year ended December 31, 2000, 31% of the Company's
sales were to customers in North America, 38% in Europe, Africa and the Middle
East, 16% in Latin America and 15% in Asia-Pacific. For other information with
respect to the management of the Company's operations by major geographical
area, see Note 12 of the Notes to the Company's Consolidated Financial
Statements on pages 39-41 of the IFF 2000 Annual Report. Such Consolidated
Financial Statements are incorporated by reference herein.
The Company estimates that during 2000 its 30 largest customers accounted
for about 53% of its sales, its four largest customers and their affiliates
accounted for about 10%, 8%, 6% and 4%, respectively, of its sales, and no
other single customer accounted for more than 3% of sales.
Governmental Regulation
Manufacture and sale of the Company's products are subject to regulation in
the United States by the Food and Drug Administration, the Agriculture
Department, the Bureau of Alcohol, Tobacco and Firearms of the Treasury
Department, the Environmental Protection Agency, the Occupational Safety and
Health Administration and state authorities. Foreign subsidiaries are subject
to similar regulation in a number of countries. Compliance
3
<PAGE>
with existing governmental requirements regulating the discharge of materials
into the environment has not materially affected the Company's operations,
earnings or competitive position. The Company expects to spend in 2001
approximately $4,400,000 in capital projects and $12,600,000 in operating
expenses and governmental charges for the purpose of complying with such
requirements. The Company expects that in 2002 capital expenditures, operating
expenses and governmental charges for such purpose will not be materially
different.
Raw Material Purchases
More than 5,000 different raw materials are purchased from many sources all
over the world. The principal natural raw material purchases consist of
essential oils, extracts and concentrates derived from fruits, vegetables,
flowers, woods and other botanicals, animal products and raw fruits. The
principal synthetic raw material purchases consist of organic chemicals. The
Company believes that alternate sources of materials are available to enable
it to maintain its competitive position in the event of any interruption in
the supply of raw materials from present sources.
Competition
The Company has more than 50 competitors in the United States and world
markets. While no single factor is responsible, the Company's competitive
position is based principally on the creative skills of its perfumers and
flavorists, the technological advances resulting from its research and
development, the quality of its customer service and the support provided by
its marketing and application groups, and its understanding of consumers.
Although statistics are not available, the Company believes that it is the
largest company producing and marketing on an international basis a wide range
of fragrance and flavor products of the types manufactured by it for sale to
manufacturers of consumer products. In particular countries and localities,
the Company faces the competition of numerous companies specializing in
certain product lines, among which are some companies larger than the Company
and some more important in a particular product line or lines. Most of the
Company's customers do not buy all their fragrance or flavor products from the
same supplier, and some customers make their own fragrance or flavor compounds
with ingredients supplied by the Company or others.
Employee Relations
The Company at December 31, 2000 employed approximately 6,610 persons, of
whom about 1,861 were employed in the United States. The Company has never
experienced a work stoppage or strike and it considers that its employee
relations are satisfactory.
Cautionary Statement
Statements in this Annual Report on Form 10-K (including information
incorporated herein by reference from the IFF 2000 Annual Report) that are not
historical facts or information are "forward-looking statements" within the
meaning of the Private Securities Litigation Reform Act of 1995, and are
subject to risks and uncertainties that could cause the Company's actual
results to differ materially from those expressed or implied by such forward-
looking statements. Risks and uncertainties with respect to the Company's
business include general economic and business conditions, interest rates, the
price and availability of raw materials, and political and economic
uncertainties, including the fluctuation or devaluation of currencies in
countries in which the Company does business. The Company intends its forward-
looking statements to speak only as of the time of such statements, and does
not undertake to update or revise them as more information becomes available.
4
<PAGE>
Item 2. Properties.
The principal manufacturing and research properties of the Company are as
follows:
<TABLE>
<CAPTION>
Location Operation
-------- ---------
<C> <S>
United States
New York, NY......... Fragrance laboratories.
Augusta, GA.......... Production of fragrance chemical ingredients.
Production of fragrance compounds; fragrance
Hazlet, NJ........... laboratories.
South Brunswick, NJ.. Production of flavor ingredients and compounds and
fruit preparations; flavor laboratories.
Union Beach, NJ...... Research and development center.
Menomonee Falls, WI.. Production of flavor compounds, flavor ingredients,
bacterial cultures and fruit preparations
Carrollton, TX(1).... Production of seasonings.
Chicago, IL.......... Production of flavor ingredients and compounds.
Jacksonville, FL..... Production of fragrance chemical ingredients.
Netherlands
Hilversum............ Flavor and fragrance laboratories.
Production of flavor and fragrance compounds and
Tilburg.............. flavor ingredients.
France
Bois-Colombes........ Fragrance laboratories.
Dijon................ Production of fragrance ingredients and compounds,
flavor ingredients and compounds and fruit
preparations; flavor laboratories.
Production of fragrance and flavor ingredients;
Grasse............... fragrance laboratories.
Great Britain
Haverhill............ Production of flavor compounds and ingredients, fruit
preparations and fragrance chemical ingredients;
flavor laboratories.
London............... Production of flavor and fragrance compounds and
flavor ingredients; flavor and fragrance
laboratories.
Long Melford......... Production of seasonings.
Widnes............... Production of fragrance chemical ingredients.
Witham............... Production of flavor ingredients and compounds.
Ireland
Drogheda............. Production of fragrance compounds.
Spain
Benicarlo............ Production of fragrance chemical ingredients.
Switzerland
Reinach-Aargau....... Production of fruit preparations and flavor
ingredients and compounds; flavor laboratories.
Germany
Emmerich/Rhein....... Production of fruit preparations and flavor
ingredients and compounds; flavor laboratories.
Argentina
Garin................ Production of fruit preparations and flavor
ingredients and compounds; production of fragrance
compounds; flavor laboratories.
Brazil
Rio de Janeiro....... Production of fragrance compounds.
Taubate.............. Production of fruit preparations and flavor
ingredients and compounds; flavor laboratories.
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
Location Operation
-------- ---------
<C> <S>
Mexico
Tlalnepantla.. Production of flavor compounds, fruit preparations and
fragrance compounds; flavor and fragrance laboratories.
Atlacomulco... Production of flavor ingredients and compounds.
China
Guangzhou(1).. Production of flavor and fragrance compounds; flavor
India laboratories.
Production of flavor and fragrance compounds and flavor
Chennai(2).... ingredients.
Singapore
Jurong(3)..... Production of flavor and fragrance compounds and flavor
ingredients.
Science Park.. Flavor and fragrance laboratories.
Philippines
Manila(1)..... Production of flavor and fragrance compounds and flavor
ingredients.
Indonesia
Jakarta(3).... Production of flavor and fragrance compounds and
ingredients; flavor and fragrance laboratories.
Japan
Tokyo......... Flavor and fragrance laboratories.
Gotemba....... Production of flavor compounds.
Australia
Melbourne..... Production of flavor and fragrance compounds and flavor
ingredients.
</TABLE>
- --------
(1) Leased.
(2) The Company has approximately a 75% interest in the subsidiary company
which owns this facility.
(3) Land is leased and building is owned.
The principal executive offices of the Company and its New York laboratory
facilities are located at 521 West 57th Street, New York City. As a result of
the acquisition of BBA, the Company is currently in the process of
consolidating or eliminating duplicate facilities. The Company believes that
the facilities that will remain following this consolidation process will meet
its present needs and anticipated needs for the foreseeable future.
Item 3. Legal Proceedings.
Over the past twenty years, various Federal and State authorities and
private parties have claimed that the Company is a potentially responsible
party as a generator of waste materials for alleged pollution at a number of
waste sites operated by third parties located principally in New Jersey. The
governmental authorities seek to recover costs incurred and to be incurred to
clean up the sites. In one current private suit, a waste site's former
owner/operator seeks contribution and indemnification from generators and
others for remedial action costs incurred and to be incurred at the site.
The waste site claims and suits usually involve million dollar amounts, and
most of them are asserted against many potentially responsible parties.
Remedial activities typically consist of several phases carried out over a
period of years. Most site remedies begin with investigation and feasibility
studies, followed by physical removal, destruction, treatment or containment
of contaminated soil and debris, and sometimes by groundwater monitoring and
treatment. To date, the Company's financial responsibility for some sites has
been settled through agreements granting the Company, in exchange for one or
more cash payments made or to be made, either complete release of liability
or, for certain sites, release from further liability for early and/or later
remediation phases, subject to certain "re-opener" clauses for later-
discovered conditions. Settlements in respect of some
6
<PAGE>
sites involve, in part, payment by the Company, and other parties, of a
percentage of the site's future remediation costs over a period of years. At
present, only four sites remain the subject of significant unsettled claims.
The Company believes that the amounts it has paid and probably will have to
pay for clean-up costs and damages at all sites are and will not be material
to the Company's financial condition, results of operations or liquidity,
because of the involvement of other large potentially responsible parties at
most sites, because payment will be made over an extended time period and
because, pursuant to an agreement reached in July 1994 with three of the
Company's liability insurers, defense costs and indemnity amounts payable by
the Company in respect of the sites will be shared by the insurers up to an
agreed amount.
Item 4. Submission of Matters to a Vote of Security Holders.
Not applicable.
Executive Officers of Registrant:
<TABLE>
<CAPTION>
Year First
Office and Other Business Became
Name Experience(2) Age Officer
---- ------------------------- --- ----------
<C> <S> <C> <C>
Richard A. Goldstein(1).. Chairman and Chief Executive 59 2000
Officer since June 2000;
President and Chief Executive
Officer of Unilever United
States, Inc. and Business Group
President of Unilever North
American Foods, home, personal
care and food products
companies, prior thereto;
Director, Legacy Hotels;
Director, Fiduciary Trust
Company International
D. Wayne Howard.......... Executive Vice President, Global 45 2000
Operations since September
2000; Vice President, Supply
Chain Strategy of Nordstrom,
Inc., a retailer, from January
2000 to August 2000; Vice
President, Strategic Sourcing,
North America of Unilever North
American Foods, a home,
personal care and food products
company, from 1998 to 1999;
Vice-President, Sourcing of
Lipton, division of Unilever,
from 1997 to 1998; Vice
President, Supply Chain of
Thomas J. Lipton Company, a
food products company, from
1995 to 1996
Carlos A. Lobbosco....... Executive Vice President, Global 61 1993
Business Development since
September 2000; Vice President
prior thereto; Director
Julian W. Boyden......... Executive Vice President since 56 2000
November 2000; Chairman of the
Board, President and Chief
Executive Officer of Bush Boake
Allen Inc., a flavor and
fragrance company, prior
thereto
Stephen A. Block......... Senior Vice President, General 56 1993
Counsel and Secretary since
February 2000; Senior Vice
President, Law & Regulatory
Affairs, and Secretary from May
1999 to February 2000; Vice
President, Law & Regulatory
Affairs, and Secretary prior
thereto
Douglas J. Wetmore....... Senior Vice President and Chief 43 1992
Financial Officer since
September 2000; Vice President
and Chief Financial Officer
from April 1998 to September
2000; Controller prior thereto;
Director
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
Year First
Became
Name Office and Other Business Experience(2) Age Officer
---- --------------------------------------- --- ----------
<C> <S> <C> <C>
Clint D. Brooks.. Vice President, Research and Development 49 2000
since October 2000; Director of
Chemical Sciences, Abbott Laboratories,
a pharmaceutical company, prior thereto
William S. Kane.. Vice President, Human Resources, since 41 1999
September 1999; Senior Vice President
Human Resources, Channel One Network,
television content provider, from 1997
to 1999; Director of Human Resources,
Frigidaire Division of Electrolux,
household products manufacturers, prior
thereto
</TABLE>
- --------
(1) Member of Executive Committee of the Board of Directors.
(2) Employed by the Company or an affiliated company for the last five years,
except as otherwise indicated.
8
<PAGE>
PART II
Item 5. Market for the Registrant's Common Stock and Related Security Holder
Matters.
(a) Market Information.
The Company's common stock is traded principally on the New York Stock
Exchange. The high and low stock prices for each quarter during the last two
years were:
<TABLE>
<CAPTION>
2000 1999
------------- -------------
Quarter High Low High Low
------- ------ ------ ------ ------
<S> <C> <C> <C> <C>
First.......................................... $37.94 $28.75 $45.50 $34.25
Second......................................... 37.81 28.81 45.00 34.50
Third.......................................... 30.94 17.38 48.50 33.63
Fourth......................................... 20.81 14.69 39.25 33.81
</TABLE>
(b) Approximate Number of Equity Security Holders.
<TABLE>
<CAPTION>
(B)
(A) Number of record holders as
Title of Class of December 31, 2000
-------------- ---------------------------
<S> <C>
Common stock, par value 12 1/2c per share.... 3,741
</TABLE>
(c) Dividends.
Cash dividends declared per share for each quarter since January 1999 were
as follows:
<TABLE>
<CAPTION>
2001 2000 1999
---- ---- ----
<S> <C> <C> <C>
First....................................................... $.15 $.38 $.38
Second...................................................... .38 .38
Third....................................................... .38 .38
Fourth...................................................... .15 .38
</TABLE>
Item 6. Selected Financial Data.
Information setting forth selected financial data in response to the
disclosure requirements specified by this Item 6 appears on page 44 of the IFF
2000 Annual Report. Such information is incorporated by reference in this Item
6. The BBA operating results are included in the Company's consolidated
results from November 3, 2000, the date of the acquisition of BBA.
Item 7. Management's Discussion and Analysis of Results of Operations and
Financial Condition.
The Company's Management's Discussion and Analysis of Results of Operations
and Financial Condition in response to the disclosure requirements specified
by this Item 7 appears in the text under the caption "Management's Discussion
and Analysis of Results of Operations and Financial Condition" on pages 24 to
28 of the IFF 2000 Annual Report. Such information is incorporated by
reference in this Item 7.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk.
Information on quantitative and qualitative disclosures about market risk
in response to the disclosure requirements specified by this Item 7A appears
in Note 14 on page 43 of the IFF 2000 Annual Report. Such information is
incorporated by reference in this Item 7A.
Item 8. Financial Statements and Supplementary Data.
The consolidated financial statements of the Company and its subsidiaries
and the notes thereto, listed in Item 14(a)(1) and included in the IFF 2000
Annual Report on pages 30 through 43, together with the report
9
<PAGE>
thereon of PricewaterhouseCoopers LLP dated January 29, 2001 on page 29 of the
IFF 2000 Annual Report, and quarterly financial information on page 29 of the
IFF 2000 Annual Report, are incorporated herein by reference.
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure.
None.
PART III
Item 10. Directors and Executive Officers of the Registrant.
The information relating to directors and nominees of the Company is set
forth under the caption "Election of Directors" in the IFF 2001 Proxy
Statement and is incorporated by reference herein. The information under the
heading "Section 16(a) Beneficial Ownership Reporting Compliance" that appears
in the IFF 2001 Proxy Statement is also incorporated by reference herein. See
above under Item 4 for the Company's Executive Officers.
Item 11. Executive Compensation.
The information relating to executive compensation is set forth under the
captions "Summary Compensation," "Option Grants in 2000," "Aggregated Option
Exercises in 2000 and Option Values at December 31, 2000," "Directors'
Compensation," "Employment Contracts and Termination of Employment and Change-
in-Control Arrangements," "Executive Separation Policy" and "Pension Plans" in
the IFF 2001 Proxy Statement and such information is incorporated by reference
herein.
Item 12. Security Ownership of Certain Beneficial Owners and Management.
The information relating to security ownership of management and certain
beneficial owners is set forth under the captions "Election of Directors" and
"Stock Ownership" in the IFF 2001 Proxy Statement and such information is
incorporated by reference herein.
Item 13. Certain Relationships and Related Transactions.
The information regarding certain relationships and related transactions is
set forth under the captions "Compensation Committee Interlocks and Insider
Participation" and "Additional Information" in the IFF 2001 Proxy Statement
and such information is incorporated by reference herein.
10
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K.
(a)(1) FINANCIAL STATEMENTS. The following consolidated financial
statements, related notes and independent accountants' report from the IFF
2000 Annual Report are incorporated by reference into Item 8 of Part II of
this Annual Report on Form 10-K:
<TABLE>
<CAPTION>
Page
No.
----
<S> <C>
Consolidated Statements of Income and Retained Earnings for the
three years ended December 31, 2000............................... 30
Consolidated Balance Sheet--December 31, 2000 and 1999............. 31
Consolidated Statement of Cash Flows for the three years ended
December 31, 2000................................................. 32
Notes to Consolidated Financial Statements......................... 33
Report of Independent Accountants.................................. 29
</TABLE>
(a)(2) FINANCIAL STATEMENT SCHEDULES. The following schedule is included in
Part IV of this Annual Report on Form 10-K:
<TABLE>
<C> <S> <C>
Schedule II-- Valuation and Qualifying Accounts and Reserves for the
three years ended December 31, 2000................... S-1
Report of Independent Accountants on Financial Statement Schedule.... 14
</TABLE>
All other schedules are omitted because they are not applicable or the
required information is shown in the financial statements or notes thereto.
(a)(3) EXHIBITS.
<TABLE>
<CAPTION>
Number
------
<C> <S>
2 Agreement and Plan of Merger dated as of September 25, 2000 among
Registrant, Bush Boake Allen Inc. and B Acquisition Corp. incorporated
by reference to Exhibit 2.1 to Registrant's Report on Form 8-K dated
September 25, 2000 (File No. 1-4858).
3 Restated Certificate of Incorporation of Registrant, incorporated by
reference to Exhibit 3 to Registrant's Report on Form 10-K for fiscal
year ended December 31, 1993 (File No. 1-4858).
3(b) By-laws of Registrant, incorporated by reference to Exhibit 3 to
Registrant's Report on Form 10-Q dated November 14, 2000 (File No. 1-
4858).
3(c) Amendment to By-laws adopted December 12, 2000.
4(a) Shareholders Protection Rights Agreement dated as of March 21, 2000
between Registrant and The Bank of New York, as Rights Agent,
incorporated by reference to Exhibit 4 to Registrant's Report on Form
8-K dated March 22, 2000 (File No. 1-4858).
4(b) First Amendment dated as of September 26, 2000, to Shareholder
Protection Rights Agreement, incorporated by reference to Exhibit 4 to
Registrant's Report on Form 8-K dated September 26, 2000 (File No. 1-
4858).
4(c) Specimen Certificates of Registrant's Common Stock bearing legend
notifying of Shareholder Protection Rights Agreement, incorporated by
reference to Exhibit 4(b) to Registrant's Registration Statement on
Form S-3 filed on September 29, 2000 (Reg. No. 333-46932).
9 Not applicable.
10(a) Memorandum of Understanding between Registrant and Richard A.
Goldstein, Chairman and Chief Executive Officer of Registrant,
approved by Registrant's Board of Directors on April 13, 2000,
incorporated by reference to Exhibit 10(a) to Registrant's Report on
Form 10-Q dated August 14, 2000 (File No. 1-4858).
</TABLE>
11
<PAGE>
<TABLE>
<CAPTION>
<C> <S>
10(b) Separation Agreement dated as of March 1, 2000 between Registrant
and Eugene P. Grisanti, former Chairman and President of Registrant,
incorporated by reference to Exhibit 10 to Registrant's Report on
Form 10-Q dated May 15, 2000 (File No. 1-4858).
10(c) Separation Agreement dated as of June 15, 2000 between Registrant
and Stuart R. Maconochie, former Vice-President and Director of
Registrant, incorporated by reference to Exhibit 10(a) to
Registrant's Report on Form 10-Q dated November 14, 2000 (File No.
1-4858).
10(d) Separation Agreement dated as of November 1, 2000 between Registrant
and Robert G. Corbett, former Vice President and Director of
Registrant.
10(e) Supplemental Retirement Plan adopted by Board of Directors on
October 29, 1986, incorporated by reference to Exhibit 10(e) to
Registrant's Report on Form 10-Q dated May 14, 1997 (File No. 1-
4858).
10(f) Registrant's Supplemental Retirement Investment Plan adopted by
Registrant's Board of Directors on November 14, 1989, as amended
through June 30, 2000.
10(g) Registrant's 2000 Stock Award and Incentive Plan adopted by
Registrant's Board of Directors on March 9, 2000, as amended by the
Board on November 14, 2000.
10(h) 2000 Supplemental Stock Award Plan adopted by Registrant's Board of
Directors on November 14, 2000, incorporated by reference to Exhibit
99.1 to Registrant's Registration Statement on Form S-8 filed on
December 7, 2000 (Reg No. 333-51436).
10(i) Restated Management Incentive Compensation Plan of Registrant,
incorporated by reference to Exhibit A to the Registrant's Proxy
Statement dated March 28, 1995 (File No. 1-4858).
10(j) Registrant's Executive Death Benefit Plan effective July 1, 1990,
incorporated by reference to Exhibit 10(c) to Registrant's Report on
Form 10-Q dated May 14, 1997 (File No. 1-4858).
10(k) Registrant's "Vision 2001 Compensation Program" adopted by
Registrant's Board of Directors on December 12, 2000.
10(l) Registrant's Executive Separation Policy, approved by Registrant's
Board of Directors on October 10, 2000.
10(m) Trust Agreement dated October 4, 2000 among Registrant, First Union
National Bank and Buck Consultants Inc. approved by Registrant's
Board of Directors on September 12, 2000, incorporated by reference
to Exhibit 10(b) to Registrant's Report on Form 10-Q dated November
14, 2000 (File No. 1-4858).
10(n) Stock Option Plan for Non-Employee Directors, incorporated by
reference to Exhibit 10(h) to Registrant's Report on Form 10-Q dated
May 14, 1997 (File No. 1-4858).
10(nn) 2000 Stock Option Plan for Non-Employee Directors adopted by
Registrant's Board of Directors on February 8, 2000, incorporated by
reference to the Registrant's Proxy Statement dated March 29, 2000
(File No. 1-4858).
10(o) Director Charitable Contribution Program adopted by the Board of
Directors on February 14, 1995, incorporated by reference to Exhibit
10(j) to Registrant's Report on Form 10-K for the fiscal year ended
December 31, 1994 (File No. 1-4858).
10(p) Resolutions approving Non-Employee Directors' Annual Stock Grant
Program adopted by Registrant's Board of Directors on September 12,
2000, incorporated by reference to Exhibit 99(c) to Registrant's
Registration Statement on Form S-3 filed on September 29, 2000 (Reg.
No. 333-46932).
10(q) Registrant's Directors' Deferred Compensation Plan adopted by
Registrant's Board of Directors on September 15, 1981 as amended
through September 1, 2000, incorporated by reference to Exhibit
99(d) to Registrant's Registration Statement on Form S-3 filed on
September 29, 2000 (Reg. No. 333-46932).
10(r) Registrant's 1997 Employee Stock Option Plan, incorporated by
reference to Exhibit A to the Registrant's Proxy Statement dated
March 27, 1997 (File No. 1-4858).
10(rr) Amendments to 1997 Employee Stock Option Plan adopted by
Registrant's Board of Directors on February 8, 2000, incorporated by
reference to Exhibit 10(ll) to Registrant's Report on Form 10-K for
the fiscal year ended December 31, 1999 (File No. 1-4858).
</TABLE>
12
<PAGE>
<TABLE>
<CAPTION>
<C> <S>
10(s) Registrant's Global Employee Stock Purchase Plan adopted by
Registrant's Board of Directors on November 14, 2000, incorporated
by reference to Exhibit B to Registrant's Proxy Statement dated
March 30, 2001 (File No. 1-4858).
10(t) Agreement dated June 23, 1998 between Registrant and Carlos A.
Lobbosco, Executive Vice President of Registrant, incorporated by
reference to Exhibit 10(a) to Registrant's Report on Form 10-Q dated
November 13, 1998 (File No. 1-4858).
10(tt) Agreement dated as of October 1, 1999 between Registrant and Carlos
A. Lobbosco, Executive Vice President of Registrant, incorporated by
reference to Exhibit 10(o) to Registrant's Report on Form 10-K for
fiscal year ended December 31, 1999 (File No. 1-4858).
10(u) 364-day Credit Agreement dated as of June 1, 1999 among Registrant,
as Borrower, certain Initial Lenders, Citibank, N.A., as Agent, and
Salomon Smith Barney Inc. as Arranger, incorporated by reference to
Exhibit 10(a) to Registrant's Report on Form 10-Q dated August 13,
1999 (File No. 1-4858).
10(uu) Amended and Restated 364-day Credit Agreement dated as of May 30,
2000 among Registrant, as Borrower, certain Initial Lenders,
Citibank, N.A., as Agent, and Salomon Smith Barney Inc., as
Arranger, incorporated by reference to Exhibit 10(c) to Registrant's
Report on Form 10-Q dated August 14, 2000 (File No. 1-4858).
10(v) 180-day Credit Agreement dated as of November 2, 2000 among
Registrant, as Borrower, certain Initial Lenders, Citibank, N.A. as
Agent and Salomon Smith Barney Inc. as Arranger.
10(w) 364-day Credit Agreement dated as of November 28, 2000 among
Registrant as Borrower, certain Initial Lenders, Citibank, N.A. as
Agent, First Union National Bank and Bank of Tokyo-Mitsubishi Trust
Company, as Syndication Agents, Fortis (USA) Finance LLC., as Co-
Agent, and Salomon Smith Barney Inc. as Arranger.
11 Not applicable.
12 Not applicable.
13 Registrant's 2000 Annual Report; except for those portions thereof
that are expressly incorporated by reference in this Form 10-K, this
exhibit is furnished only for the information of the Commission and
is not deemed to be filed as part of this Form 10-K.
16 Not applicable.
18 Not applicable.
21 List of Principal Subsidiaries.
22 Not applicable.
23 Consent of PricewaterhouseCoopers LLP.
24 Powers of Attorney authorizing Douglas J. Wetmore and Stephen A.
Block to sign this report and amendments thereto on behalf of
certain directors and officers of the Registrant.
27 Financial Data Schedule (EDGAR version only).
28 Not applicable.
99 None.
</TABLE>
(b) REPORTS ON FORM 8-K
The Company filed the following reports on Form 8-K during the last quarter
of the fiscal year ended December 31, 2000. Neither of such reports contained
financial statements.
. Report on Form 8-K dated September 26, 2000 and filed October 2, 2000,
describing in Item 5 the Company's entering into a First Amendment to
its Shareholder Protection Rights Agreement dated as of March 21, 2000.
. Report on Form 8-K dated November 3, 2000 and filed November 13, 2000,
describing in Item 2 the completion of the Company's acquisition of Bush
Boake Allen Inc., a Virginia corporation.
13
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS ON FINANCIAL STATEMENT SCHEDULE
To the Board of Directors and Shareholders of
International Flavors & Fragrances Inc.
Our audits of the consolidated financial statements referred to in our report
dated January 29, 2001 appearing in the 2000 Annual Report to Shareholders of
International Flavors & Fragrances Inc. (which report and consolidated
financial statements are incorporated by reference in this Annual Report on
Form 10-K) also included an audit of the financial statement schedule listed
in Item 14(a)(2) of this Form 10-K. In our opinion, this financial statement
schedule presents fairly, in all material respects, the information set forth
therein when read in conjunction with the related consolidated financial
statements.
PricewaterhouseCoopers LLP
New York, New York
January 29, 2001
14
<PAGE>
Pursuant to the requirements of Section 13 of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
International Flavors & Fragrances
Inc.
(Registrant)
/s/ Douglas J. Wetmore
By __________________________________
Douglas J. Wetmore
Senior Vice President and Chief
Financial Officer
Dated: March 30, 2001
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the date indicated:
Principal Executive Officer:
Richard A. Goldstein
Chairman of the Board and
Chief Executive Officer
Principal Financial and Accounting Officer:
Douglas J. Wetmore
Senior Vice President and
Chief Financial Officer By /s/ Stephen A. Block
----------------------
Directors: Stephen A. Block
Attorney in fact
Margaret Hayes Adame March 30, 2001
Gunter Blobel
J. Michael Cook
Richard M. Furlaud
Peter A. Georgescu
Richard A. Goldstein
Carlos A. Lobbosco
Arthur C. Martinez
George Rowe, Jr.
Henry P. van Ameringen
William D. Van Dyke, III
Douglas J. Wetmore
Original powers of attorney authorizing Douglas J. Wetmore and Stephen A.
Block, and each of them, to sign this report on behalf of certain directors
and officers of the Registrant have been filed with the Securities and
Exchange Commission.
15
<PAGE>
SCHEDULE II
INTERNATIONAL FLAVORS & FRAGRANCES INC. AND SUBSIDIARIES
SCHEDULE II--VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
(In thousands of dollars)
<TABLE>
<CAPTION>
For the Year Ended December 31, 2000
---------------------------------------------------
Additions Trans-
Balance at charged to lation Balance
beginning costs and Accounts adjust- at end
of period expenses written off ments of period
---------- ---------- ----------- ------- ---------
<S> <C> <C> <C> <C> <C>
Allowance for doubtful
accounts................. $10,013 $2,359 $ 963 $(335) $11,074
======= ====== ====== ===== =======
<CAPTION>
For the Year Ended December 31, 1999
---------------------------------------------------
Additions Trans-
Balance at charged to lation Balance
beginning costs and Accounts adjust- at end
of period expenses written off ments of period
---------- ---------- ----------- ------- ---------
<S> <C> <C> <C> <C> <C>
Allowance for doubtful
accounts................. $ 9,517 $1,845 $ 668 $(481) $10,013
======= ====== ====== ===== =======
<CAPTION>
For the Year Ended December 31, 1998
---------------------------------------------------
Additions Trans-
Balance at charged to lation Balance
beginning costs and Accounts adjust- at end
of period expenses written off ments of period
---------- ---------- ----------- ------- ---------
<S> <C> <C> <C> <C> <C>
Allowance for doubtful
accounts................. $ 8,101 $2,228 $1,053 $ 241 $ 9,517
======= ====== ====== ===== =======
</TABLE>
S-1
<PAGE>
EXHIBIT INDEX
EXHIBIT
-------
2 Agreement and Plan of Merger dated as of September 25, 2000 among
Registrant, Bush Boake Allen Inc. and B Acquisition Corp. incorporated
by reference to Exhibit 2.1 to Registrant's Report on Form 8-K dated
September 25, 2000 (File No. 1-4858).
3 Restated Certificate of Incorporation of Registrant, incorporated by
reference to Exhibit 3 to Registrant's Report on Form 10-K for fiscal
year ended December 31, 1993 (File No. 1-4858).
3(b) By-laws of Registrant, incorporated by reference to Exhibit 3 to
Registrant's Report on Form 10-Q dated November 14, 2000 (File No. 1-
4858).
3(c) Amendment to By-laws adopted December 12, 2000.
4(a) Shareholders Protection Rights Agreement dated as of March 21, 2000
between Registrant and The Bank of New York, as Rights Agent,
incorporated by reference to Exhibit 4 to Registrant's Report on Form
8-K dated March 22, 2000 (File No. 1-4858).
4(b) First Amendment dated as of September 26, 2000, to Shareholder
Protection Rights Agreement, incorporated by reference to Exhibit 4 to
Registrant's Report on Form 8-K dated September 26, 2000 (File No. 1-
4858).
4(c) Specimen Certificates of Registrant's Common Stock bearing legend
notifying of Shareholder Protection Rights Agreement, incorporated by
reference to Exhibit 4(b) to Registrant's Registration Statement on
Form S-3 filed on September 29, 2000 (Reg. No. 333-46932).
9 Not applicable.
10(a) Memorandum of Understanding between Registrant and Richard A.
Goldstein, Chairman and Chief Executive Officer of Registrant,
approved by Registrant's Board of Directors on April 13, 2000,
incorporated by reference to Exhibit 10(a) to Registrant's Report on
Form 10-Q dated August 14, 2000 (File No. 1-4858).
10(b) Separation Agreement dated as of March 1, 2000 between Registrant and
Eugene P. Grisanti, former Chairman and President of Registrant,
incorporated by reference to Exhibit 10 to Registrant's Report on Form
10-Q dated May 15, 2000 (File No. 1-4858).
10(c) Separation Agreement dated as of June 15, 2000 between Registrant and
Stuart R. Maconochie, former Vice-President and Director of
Registrant, incorporated by reference to Exhibit 10(a) to Registrant's
Report on Form 10-Q dated November 14, 2000 (File No. 1-4858).
10(d) Separation Agreement dated as of November 1, 2000 between Registrant
and Robert G. Corbett, former Vice President and Director of
Registrant.
10(e) Supplemental Retirement Plan adopted by Board of Directors on October
29, 1986, incorporated by reference to Exhibit 10(e) to Registrant's
Report on Form 10-Q dated May 14, 1997 (File No. 1-4858).
10(f) Registrant's Supplemental Retirement Investment Plan adopted by
Registrant's Board of Directors on November 14, 1989, as amended
through June 30, 2000.
10(g) Registrant's 2000 Stock Award and Incentive Plan adopted by
Registrant's Board of Directors on March 9, 2000, as amended by the
Board on November 14, 2000.
10(h) 2000 Supplemental Stock Award Plan adopted by Registrant's Board of
Directors on November 14, 2000, incorporated by reference to Exhibit
99.1 to Registrant's Registration Statement on Form S-8 filed on
December 7, 2000 (Reg No. 333-51436).
10(i) Restated Management Incentive Compensation Plan of Registrant,
incorporated by reference to Exhibit A to the Registrant's Proxy
Statement dated March 28, 1995 (File No. 1-4858).
10(j) Registrant's Executive Death Benefit Plan effective July 1, 1990,
incorporated by reference to Exhibit 10(c) to Registrant's Report on
Form 10-Q dated May 14, 1997 (File No. 1-4858).
10(k) Registrant's "Vision 2001 Compensation Program" adopted by
Registrant's Board of Directors on December 12, 2000.
10(l) Registrant's Executive Separation Policy, approved by Registrant's
Board of Directors on October 10, 2000.
10(m) Trust Agreement dated October 4, 2000 among Registrant, First Union
National Bank and Buck Consultants Inc. approved by Registrant's
Board of Directors on September 12, 2000, incorporated by reference
to Exhibit 10(b) to Registrant's Report on Form 10-Q dated
November 14, 2000 (File No. 1-4858).
10(n) Stock Option Plan for Non-Employee Directors, incorporated by
reference to Exhibit 10(h) to Registrant's Report on Form 10-Q dated
May 14, 1997 (File No. 1-4858).
10(nn) 2000 Stock Option Plan for Non-Employee Directors adopted by
Registrant's Board of Directors on February 8, 2000, incorporated by
reference to the Registrant's Proxy Statement dated March 29, 2000
(File No. 1-4858).
10(o) Director Charitable Contribution Program adopted by the Board of
Directors on February 14, 1995, incorporated by reference to Exhibit
10(j) to Registrant's Report on Form 10-K for the fiscal year ended
December 31, 1994 (File No. 1-4858).
10(p) Resolutions approving Non-Employee Directors' Annual Stock Grant
Program adopted by Registrant's Board of Directors on September 12,
2000, incorporated by reference to Exhibit 99(c) to Registrant's
Registration Statement on Form S-3 filed on September 29, 2000 (Reg.
No. 333-46932).
10(q) Registrant's Directors' Deferred Compensation Plan adopted by
Registrant's Board of Directors on September 15, 1981 as amended
through September 1, 2000, incorporated by reference to Exhibit 99(d)
to Registrant's Registration Statement on Form S-3 filed on September
29, 2000 (Reg. No. 333-46932).
10(r) Registrant's 1997 Employee Stock Option Plan, incorporated by
reference to Exhibit A to the Registrant's Proxy Statement dated
March 27, 1997 (File No. 1-4858).
10(rr) Amendments to 1997 Employee Stock Option Plan adopted by Registrant's
Board of Directors on February 8, 2000, incorporated by reference to
Exhibit 10(ll) to Registrant's Report on Form 10-K for the fiscal year
ended December 31, 1999 (File No. 1-4858).
10(s) Registrant's Global Employee Stock Purchase Plan adopted by
Registrant's Board of Directors on November 14, 2000, incorporated by
reference to Exhibit B to Registrant's Proxy Statement dated March 30,
2001 (File No. 1-4858).
10(t) Agreement dated June 23, 1998 between Registrant and Carlos A.
Lobbosco, Executive Vice President of Registrant, incorporated by
reference to Exhibit 10(a) to Registrant's Report on Form 10-Q dated
November 13, 1998 (File No. 1-4858).
10(tt) Agreement dated as of October 1, 1999 between Registrant and Carlos
A. Lobbosco, Executive Vice President of Registrant, incorporated by
reference to Exhibit 10(o) to Registrant's Report on Form 10-K for
fiscal year ended December 31, 1999 (File No. 1-4858).
10(u) 364-day Credit Agreement dated as of June 1, 1999 among Registrant,
as Borrower, certain Initial Lenders, Citibank, N.A., as Agent, and
Salomon Smith Barney Inc. as Arranger, incorporated by reference to
Exhibit 10(a) to Registrant's Report on Form 10-Q dated August 13,
1999 (File No. 1-4858).
10(uu) Amended and Restated 364-day Credit Agreement dated as of May 30, 2000
among Registrant, as Borrower, certain Initial Lenders, Citibank,
N.A., as Agent, and Salomon Smith Barney Inc., as Arranger,
incorporated by reference to Exhibit 10(c) to Registrant's Report on
Form 10-Q dated August 14, 2000 (File No. 1-4858).
10(v) 180-day Credit Agreement dated as of November 2, 2000 among
Registrant, as Borrower, certain Initial Lenders, Citibank, N.A. as
Agent and Salomon Smith Barney Inc. as Arranger.
10(w) 364-day Credit Agreement dated as of November 28, 2000 among
Registrant as Borrower, certain Initial Lenders, Citibank, N.A. as
Agent, First Union National Bank and Bank of Tokyo-Mitsubishi Trust
Company, as Syndication Agents, Fortis (USA) Finance LLC., as Co-
Agent, and Salomon Smith Barney Inc. as Arranger.
11 Not applicable.
12 Not applicable.
13 Registrant's 2000 Annual Report; except for those portions thereof
that are expressly incorporated by reference in this Form 10-K, this
exhibit is furnished only for the information of the Commission and
is not deemed to be filed as part of this Form 10-K.
16 Not applicable.
18 Not applicable.
21 List of Principal Subsidiaries.
22 Not applicable.
23 Consent of PricewaterhouseCoopers LLP.
24 Powers of Attorney authorizing Douglas J. Wetmore and Stephen A. Block
to sign this report and amendments thereto on behalf of certain
directors and officers of the Registrant.
27 Financial Data Schedule (EDGAR version only).
28 Not applicable.
99 None.
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-99.3(C)
<SEQUENCE>2
<FILENAME>0002.txt
<DESCRIPTION>AMNT TO REGISTRANT'S BY-LAWS ADOPTED 12/12/2000
<TEXT>
<PAGE>
Exhibit 3(c)
AMENDMENT TO REGISTRANT'S BY-LAWS
ADOPTED DECEMBER 12, 2000
=====================================
RESOLVED that Article II, Section
2 of the By-laws of the Corporation, as
amended, is hereby further amended,
effective immediately by changing the
word "eleven" therein to "twelve."
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-99.10(D)
<SEQUENCE>3
<FILENAME>0003.txt
<DESCRIPTION>SEPARATION AGREEMENT-ROBERT G. CORBETT
<TEXT>
<PAGE>
EXHIBIT 10(d)
SEPARATION AGREEMENT
--------------------
This SEPARATION AGREEMENT (this "Agreement") is entered into as of the
1st day of November, 2000 between Robert G. Corbett (the "Employee"), and
International Flavors & Fragrances Inc., a New York corporation (the "Company").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Employee is employed by the Company as a Vice President
and President of its Flavor Division, and serves on its the Board of Directors
(the "Board"); and
WHEREAS, the Company and the Employee have agreed that the Employee's
employment with the Company shall terminate on January 1, 2001 (the "Separation
Date"); and
WHEREAS, the Employee and the Company now desire to enter into an
agreement concerning the duties and responsibilities of the Employee from the
date hereof until the Separation Date and in respect of the Employee's
separation from the Company as hereinafter set forth,
NOW, THEREFORE, in consideration of the mutual promises contained in
this Agreement, the Employee and the Company agree as follows:
1. Continuation of Employment; Duties. Until the Separation Date, the
----------------------------------
Employee shall remain a full-time employee of the Company and shall continue as
a Vice President of the Company. The Employee shall perform such duties
commensurate with his executive status as Richard A. Goldstein, the Company's
Chairman and Chief Executive Officer, may reasonably assign to him. The parties
currently contemplate that these duties will consist primarily of participating
in the continued design and implementation of the Company's Commercial Product
Development program; however, the Employee acknowledges that he may be requested
to perform, and he agrees to perform, other duties as well. The Employee may use
the administrative/secretarial services of Jean Horvath to assist him in the
performance of his duties.
2. Termination of Employment Relationship; Resignation from
--------------------------------------------------------
Officerships and Directorships. The Employee has executed and delivered to the
- ------------------------------
Company his resignation, effective as of the date of this Agreement, from the
Company's
<PAGE>
Board of Directors. On the Separation Date the Employee's employment with the
Company, and with all entities controlled directly or indirectly by the Company
(together with the Company, the "Company Group"), shall terminate. Effective as
of the Separation Date, the Employee shall voluntarily resign as a director
and/or officer of each Company Group entity in which he has served as a director
and/or officer prior to the date of this Agreement; from the Company's Pension
Committee and as a Trustee of the Company's Pension Plan; and from the
Administrative Committee of the Company's Retirement Investment Fund Plan.
3. Consideration to the Employee. The Company shall make the
-----------------------------
following payments and provide the following additional benefits and
consideration to the Employee, subject to Section 6 hereof:
(a) Salary and Benefits through the Separation Date Payments.
--------------------------------------------------------
Through and including the Separation Date, the Employee shall continue to be
paid his current base salary of $32,083.33 per month ($385,000 per year), and
shall continue to be entitled to all of the benefits that the Company is
currently making available to employees who are officers of the Company. The
Employee shall be entitled to the same percentage contribution by the Company in
respect of the year 2000 under the Company's Retirement Investment Fund Plan,
including the Supplemental Retirement Investment Plan, as the Company makes to
United States employees of the Company generally.
(b) 2000 Incentive Compensation. The Employee shall receive $192,500
---------------------------
(representing 50% of the Employee's 2000 base salary) as incentive compensation
under the Company's Management Incentive Compensation Plan (the "MICP") with
respect to the year 2000, which shall be paid in one lump sum as previously
directed by the Employee under the terms of the MICP (the "2000 Incentive
Compensation Award"). No bonus or other incentive compensation (whether under
the MICP, the Company's 2000 Stock Award and Incentive Plan or otherwise) is or
shall be awarded to the Employee with respect to 2000 or any period after 2000.
The 2000 Incentive Compensation Award shall be paid to the Employee in early
2001 at the same time as incentive compensation is paid to executive employees
of the Company generally.
(c) Severance Payments. Commencing January 2, 2001 and continuing
------------------
through and including December 31, 2002 (the "Severance Period"), the Employee
shall receive monthly severance payments of $48,125, which is equal to the sum
of his current monthly base salary ($32,083.33) and one-twelfth of the 2000
Incentive Compensation Award ($16,041.67) ("Severance Payments"). Severance
Payments shall be made semi-monthly at the same times as compensation is paid to
exempt United States employees of the Company.
2
<PAGE>
(d) Stock Options. The Employee may exercise through and including
-------------
March 31, 2001 any IFF stock options that are exercisable on the Separation
Date, in accordance with the provisions of various Stock Option Agreements
between the Employee and the Company. If the Employee should die prior to the
expiration of that period, his legal representative's right to exercise stock
options shall be governed by the provisions of such Stock Option Agreements.
Options that under the terms of such Stock Option Agreements are not exercisable
as of the Separation Date shall lapse on such date. All exercisable but then
unexercised options shall expire at the close of business on March 31, 2001.
(e) Pension and Other Benefits. The Employee shall be vested in the
--------------------------
benefits that he accrues through January 1, 2001 pursuant to the Company's
Pension Plan (including the supplemental plan), the Company's Retirement Income
Fund Plan (including the supplemental plan and the MICP and the Company's
Special Executive Bonus Plan (as to amounts earned with respect to 1999 and
prior years and deferred). The Employee's entitlement to payments from any such
plan shall be governed by the terms of such plan. For the shorter of the
Severance Period or until the Employee becomes eligible to participate in
medical, dental and/or life insurance plans upon his commencement of new
"Employment," as hereinafter defined (the "Supplemental Benefits Period"), the
Employee and his eligible dependents shall either (a) continue to participate in
the Company's medical and dental plans and to be covered under the Company's
group life insurance plan (including the Executive Death Benefit Plan), under
the same terms and conditions, and at the same contribution levels, as are
applicable to active employees of the Company, or (b) if such continued
participation is not possible under the terms and conditions of one or more of
such plans, the Company shall arrange to have issued for the benefit of the
Employee and his dependents individual policies of insurance providing benefits
substantially similar (on an after-tax basis) to the plan(s) as to which the
Employee's continued participation is not possible. In such event the Employee
shall make contributions to the cost of such policy or policies of insurance as
if he were continuing to participate in the applicable Company plans. For the
purpose of this Agreement, "Employment" shall mean the Employee's substantially
full-time participation for monetary compensation as an officer, employee,
partner, principal or individual proprietor in any entity or business. At the
expiration of the Supplemental Benefits Period the Employee shall be able to
continue coverage under the Company's medical plan in accordance with the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") for up to
eighteen (18) months after the expiration of the Supplemental Benefits Period by
paying the applicable monthly premiums.
3
<PAGE>
(f) Company Car; Cellular Phone. On the Separation Date, the Company
---------------------------
shall transfer to the Employee ownership of the 1998 Infiniti Q45t automobile
currently provided to him by the Company (the "Company Car"). For the
Supplemental Benefits Period, the Employee may continue to use, and the Company
shall continue to pay in the same manner as it currently does, his Company-
provided cellular telephone.
(g) Outplacement. The Company shall arrange for the Employee to have
------------
the outplacement services with Manchester Partners, and shall pay all fees
associated therewith. The Company agrees to cause such outplacement services to
be continued until the earlier of the expiration of the Severance Period or the
date on which the Employee accepts new Employment.
(h) Attorney's Fees. Within ten (10) days after the Employee's
---------------
execution and delivery to the Company of this Agreement and the Release, the
Company shall place in the mail to the Employee's attorney, Howard S. Denburg,
Esq., Grotta, Glassman & Hoffman, 125 West 55th Street, New York, New York
10019, a check for $2,500 in respect of the Employee's attorneys' fees in
connection with the negotiation of this Agreement. The Company shall have no
other obligation to the Employee or to any attorney or other advisor acting on
the Employee's behalf.
4. Noncompetition; Nonsolicitation. During the Severance Period, the
-------------------------------
Employee agrees that he shall not act as a director, officer, employee, partner
or individual proprietor of, perform consulting services for, or otherwise give
material assistance to, any of the following entities or any of their parent or
subsidiary companies anywhere in the world: Dragoco, Firmenich, Givaudan,
Haarmann & Reimer, Quest International, Robertet, Takasago or Universal Foods
(the "Competing Entities"). Notwithstanding the foregoing, the Employee shall
not be prevented from owning a beneficial interest of less than five percent
(5%) of the outstanding capital stock of any publicly owned Competing Entity.
Additionally, during the Severance Period, the Employee agrees that he shall not
solicit, induce, or attempt to influence any individual who is an employee of
the Company Group to terminate his or her employment relationship with the
Company Group, or to become employed by him or his affiliates or any person by
which he is employed, or interfere in any other way with the employment, or
other relationship, of the Company Group and any employee thereof. The Employee
also agrees that, during the Severance Period he shall not, in any way that
interferes with the business of the Company or with the relationship between the
Company and any such entity, solicit or canvass the trade, business or patronage
of, or sell to or buy from, any persons or entities that are either (i)
customers of or suppliers to the Company Group, or (ii) actual or prospective
4
<PAGE>
customers of or suppliers to the Company Group with respect to which a sales
effort, presentation or proposal was made.
5. Entire Consideration. The Employee understands and agrees that
--------------------
the payments and benefits provided for in this Agreement (a) are the only ones
to which he is entitled relating to his employment and/or in connection with the
termination of his employment with the Company, and (b) are in excess of those
to which he otherwise would be entitled, and that they are being provided to him
in consideration for his signing of this Agreement and the "Release," as defined
in Section 6, which consideration he agrees is adequate and satisfactory to him.
6. Releases. As a condition to the Employee's entitlement to the
--------
compensation, payments and benefits provided for in Sections 1 and 3 hereof, the
Employee shall have executed and delivered to the Company a release in the form
attached hereto as Schedule I (the "Release"), and such Release shall have
become irrevocable. If the Employee exercises his right to revoke the Release in
accordance with the terms thereof, then this Agreement shall become null and
void ab initio. As a further condition to the Employee's entitlement to the
compensation, payment and benefits provided in Section 3, the Company shall have
the right to require the Employee to execute and deliver an additional release
substantially identical to the Release, but dated as of the Separation Date.
7. Non-Disparagement. Each of the Employee and the Company agrees
-----------------
that at no time will either the Employee or any officer, director, employee or
other representative of the Company in any way denigrate, demean or otherwise
say or do anything, whether in oral discussions or in writing, that would cause
any third party, including but not limited to suppliers, customers and
competitors of the Company, to lower its perception about the integrity, public
or private image, professional competence, or quality of products or service, of
the other or, in the case of the Company, of any officer, director, employee or
other representative of the Company. The Company and the Employee have agreed on
the written form of reference attached to this Agreement as Schedule II. The
Employee may use this reference with any prospective employer. Other than this
reference, if the Company is asked by a prospective employer for a reference
with respect to a new position for which the Employee is being considered,
without the Employee's prior written consent the Company will do no more than
confirm the Employee's dates of employment and salary history.
8. Cooperation and Assistance. The Employee acknowledges that he may
--------------------------
have historical information or knowledge that may be useful to the Company in
connection with current or future legal, regulatory or administrative
proceedings. The
5
<PAGE>
Employee will cooperate with the Company, both during the Severance Period and
thereafter, in the defense or prosecution of any such claims that relate to
events or occurrences that transpired during the Employee's employment with the
Company. The Employee's cooperation in connection with such claims or actions
shall include being reasonably available, subject to his other business and
personal commitments, to meet with counsel to prepare for discovery or trial and
to testify truthfully as a witness when reasonably requested by the Company at
reasonable times and with reasonable advance notice to the Employee. The Company
shall reimburse the Employee for any out-of-pocket expenses, including the
reasonable fees of the Employee's personal attorney, which he incurs in
connection with such cooperation.
9. Return of Property. Except as otherwise provided in this Section
------------------
9, the Employee expressly agrees that, on the Separation Date, he will return to
the Company all property of the Company Group including, but not limited to, any
and all files, computers, computer equipment and software and diskettes,
documents, papers, records, accords, notes, agenda, memoranda, plans, calendars
and other books and records of any kind and nature whatsoever containing
information concerning the Company Group or their customers or operations. The
Employee affirms that he will not retain copies of any such property or other
materials. Notwithstanding the foregoing, the Employee shall not be required to
return the laptop computer, docking station, monitor, keyboard and accessories
therefor that are in his Company office on the date of this Agreement, or his
rolodexes, personal diaries and correspondence.
10. Non-Disclosure. Under the Employee's Security Agreement with
--------------
the Company, a copy of which is attached to this Agreement as Schedule III, and
under applicable trade secret law, the Employee is obliged to keep in confidence
all trade secrets and proprietary and confidential information of the Company
Group, whether patentable or not which he learned or of which he became aware or
informed during his employment by the Company (except to the extent disclosure
is or may be required by a statute, by a court of law, by any governmental
agency having supervisory authority over the business of the Company or by any
administrative or legislative body (including a committee thereof) with apparent
jurisdiction to order him to divulge, disclose or make accessible such
information,, and not to directly or indirectly publish, disclose, market or
use, or authorize, advise, hire, counsel or otherwise procure any other person
or entity, directly or indirectly, to publish, disclose, market or use, any such
information. Both under such Security Agreement and under applicable law, such
obligations continue not only while the Employee is employed by the Company, but
after cessation of that employment. In amplification and not in
6
<PAGE>
limitation of the foregoing, the Employee acknowledges that during his
employment with the Company, he has or may have acquired proprietary and
confidential knowledge and information of the Company Group, including, but not
limited to, fragrance and flavor formulae, secret processes and products,
qualities and grades of flavor and fragrance ingredients and raw materials,
including but not limited to aroma chemicals, perfumery and flavor and fragrance
compounding "know-how" and other technical data belonging to or relating to the
Company Group, and the identity of customers and suppliers of the Company Group
and the quantities of products ordered by or from and the prices paid by or to
those customers and suppliers. In addition, the Employee has also acquired
similar confidential knowledge and information belonging to customers of the
Company Group and provided to the Company Group in confidence under written and
oral secrecy agreements. The Employee agrees to abide by the terms and
conditions of the Security Agreement and of this Section 10 both during the
Severance Period and thereafter.
11. Tax and Withholding. Any Federal, State and/or local income,
-------------------
personal property, franchise, excise or other taxes owed by the Employee as a
result of the payments or benefits provided under the terms of this Agreement
shall be the sole responsibility and obligation of the Employee. The parties
hereto agree and acknowledge that Company shall have the right to withhold from
any payments made or benefits provided to the Employee any and all amounts that
are necessary to enable the Company to satisfy any withholding or other tax
obligation that arises in connection with such payments or benefits, and the
Company shall report any such amounts that it determines are compensation income
on a Form W-2, including but not limited to the value of the Company Car.
12. No Oral Modification. This Agreement may not be changed orally
--------------------
and no modification, amendment or waiver of any provision contained in this
Agreement, or any future representation, promise or condition in connection with
the subject matter of this Agreement shall be binding upon any party hereto
unless made in writing and signed by such party.
13. Resolution of Disputes. Any disputes under or in connection with
----------------------
this Agreement shall, at the election of either party, be resolved by
arbitration, to be held in New York, New York in accordance with the rules and
procedures of the American Arbitration Association then in effect. Judgment
upon the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction. Each party shall bear its own costs, including but not limited to
attorneys' fees, of the arbitration or of any litigation arising out of this
Agreement. Pending the resolution
7
<PAGE>
of any arbitration or litigation, the Company shall continue payment of all
amounts due the Employee under this Agreement and all benefits to which the
Employee is entitled at the time the dispute arises.
14. Severability. In the event that any provision of this Agreement
------------
or the application thereof should be held to be void, voidable, unlawful or, for
any reason, unenforceable, the remaining portion and application shall remain in
full force and effect, and to that end the provisions of this Agreement are
declared to be severable.
15. Governing Law. This Agreement is made and entered into, and
-------------
shall be subject to, governed by, and interpreted in accordance with the laws of
the State of New York and shall be fully enforceable in the courts of that
state, without regard to principles of conflict of laws.
16. Successors and Assigns. This Agreement shall inure to the
-----------------------
benefit of and shall be binding upon the parties hereto and their respective
heirs, administrators, representatives, executors, successors and assigns,
including but not limited to (i) with respect to the Company, any entity with
which the Company may merge or consolidate or to which the Company may sell all
or substantially all of its assets, and (ii) with respect to the Employee, his
executors, administrators, heirs and legal representatives.
17. Notices. All notices required pursuant to this Agreement shall
-------
be in writing and shall be deemed given if mailed, postage prepaid, or if
delivered by fax or by hand, to a party at the address set forth below:
If to the Employee:
Mr. Robert G. Corbett
779 Hyslip Avenue
Westfield, New Jersey 07090
If to the Company:
International Flavors & Fragrances Inc.
521 West 57/th/ Street
New York, New York 10019
Attention: Corporate Secretary
Any change in address by either party shall be effective when notified to the
other party as aforesaid.
18. Counterparts. This Agreement may be executed in
------------
8
<PAGE>
counterparts, and each counterpart, when executed, shall have the effect of a
signed original.
19. Acknowledgment of Knowing and Voluntary Release; Revocation
-----------------------------------------------------------
Right. The Employee certifies that he has read the terms of this Agreement.
- -----
The execution hereof by the Employee shall indicate that this Agreement conforms
to the Employee's understandings and is acceptable to him as a final agreement.
It is further understood and agreed that the Employee has had the opportunity to
consult with counsel of his choice, that he has in fact consulted with his own
counsel with respect to this Agreement, and that he has been given a reasonable
and sufficient period of time of no less than 21 days in which to consider and
return this Agreement.
WHEREFORE, intending to be legally bound, the parties have agreed to the
aforesaid terms and indicate their agreement by signing below.
ROBERT G. CORBETT
/s/ Robert G. Corbett 11/26/00
------------------------ ------------
Robert G. Corbett Date
INTERNATIONAL FLAVORS & FRAGRANCES INC.
By: /s/ Stephen A. Block 11/15/00
---------------------------- ------------
Stephen A. Block Date
Senior Vice-President
General Counsel
and Secretary
9
<PAGE>
SCHEDULE I
----------
RELEASE
-------
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned, Robert G. Corbett,
of 770 Hyslip Avenue, Westfield, New Jersey 07090 (hereinafter referred to as
"Employee"), for and in consideration of certain benefits heretofore paid or to
be paid or provided to him by International Flavors & Fragrances Inc., a New
York corporation with a place of business at 521 West 57/th/ Street, New York,
New York 10019 (hereinafter referred to as "IFF Inc."), as such benefits are
set forth in a Separation Agreement dated as of November 1, 2000 (the
"Separation Agreement"), DOES HEREBY IREREVOCABLY AND UNCONDITIONALLY AGREE TO
RELEASE, WAIVE and FOREVER DISCHARGE, except as otherwise provided in this
Release, IFF Inc. and all of its subsidiaries, affiliates, successors and
assigns and their respective directors, officers, employees and agents
(hereinafter referred to as "Releasees") from all "Claims", as hereinafter
defined, and Employee waives, releases and covenants not to sue Releasees or to
file any lawsuit or any claim with any Federal, state or local administrative
agency asserting or in respect of any of such Claims.
As used in this Release, the term "Claims" means and includes all charges,
complaints, claims, liabilities, obligations,
10
<PAGE>
promises, agreements, damages, actions, causes of action, rights, costs, losses
and expenses (including attorneys' fees and costs actually incurred) of any
nature whatsoever, known or unknown, suspected or unsuspected, which Employee
now has, or claims to have, or which Employee at any earlier time had, or
claimed to have had, or which Employee at any future time may have, or claim to
have, against each or any of the Releasees as to any matters relating to or
arising out of his employment and/or service on the Board of Directors of IFF
Inc. or any subsidiary or affiliate thereof or the termination of such
employment or Board of Director service, and occurring or arising on or before
the date this Release is executed by Employee. The Claims Employee is releasing
under this Release include, but are not limited to, rights arising out of
alleged violations of any contracts, express or implied, written or oral, and
any Claims for wrongful discharge, fraud, misrepresentation, infliction of
emotional distress, or any other tort, and any other Claims relating to or
arising out of Employee's employment, compensation and benefits with IFF Inc. or
the termination thereof, and any Claim for violation of any the laws of any
country of the world or subdivision thereof, including but not limited to any
United States Federal, state or other governmental statute, regulation or
ordinance including, but not limited to, the following, each as amended to date:
(1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. (S)(S) 2000e et seq.;
-- ----
(2) Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. (S) 1981; (3) the
Americans with Disabilities Act, 42 U.S.C. (S) 12101 et seq. (4) the Age
-- ----
11
<PAGE>
Discrimination in Employment Act, 29 U.S.C. (S)(S) 621-634; (5) the Equal Pay
Act of 1963, 29 U.S.C. (S) 206; (6) Executive Order 11246; (7) Executive Order
11141; (8) Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. (S)(S) 701
et seq.; (9) the Employee Retirement Income Security Act of 1974, 29 U.S.C.
- -- ---
(S)(S) 1001 et seq.; and (10) any applicable New York or New Jersey law,
-- ---
statute, regulation, ordinance, or constitutional or public policy provisions.
Anything in this Release to the contrary notwithstanding, it is agreed that the
Employee does not waive his rights to coverage under any directors and officers
insurance policy, for indemnification pursuant to IFF Inc.'s By-laws as in
effect on the date of this Release for acts or omissions occurring or alleged to
have occurred during Employee's employment or other service to IFF Inc., or to
enforce the Separation Agreement or any rights under any employee or retirement
benefit plan, program or policy of IFF Inc. or any of its subsidiaries or
affiliates.
Employee hereby represents that neither he nor anyone acting at his
discretion or on his behalf has filed any complaints, charges, claims, demands
or lawsuits with respect to any Claim (an "Action") against any Releasee with
any governmental agency or any court; that he will not file or pursue any Action
at any time hereafter; and that if any such agency or court assumes jurisdiction
of any Action, against any Releasee on behalf of Employee, he will request such
agency or court to withdraw the matter. If any such Action is filed by the
Employee, he further agrees that he will not seek any relief from the Releasees,
however
12
<PAGE>
that relief might be called, whether reinstatement, back pay, compensatory,
punitive or exemplary damages, claims for emotional distress or pain and
suffering, or claims for attorneys' fees, reimbursement of expenses or
otherwise, on the basis of any such claim. Neither this Release nor the
undertaking in this paragraph shall limit Employee from pursuing Claims for the
sole purpose of enforcing his rights under the Separation Agreement or under any
employment or retiree benefit plan or program of IFF Inc. or any of its
subsidiaries or affiliates.
For the purpose of implementing a full and complete release and
discharge of claims, the Employee expressly acknowledges that this Release is
intended to include in its effect, without limitation, all the claims described
in the preceding paragraphs, whether known or unknown, apparent or concealed,
and that this Release contemplates the extinction of all such claims, including
claims for attorneys' fees. Employee expressly waives any right to assert after
the execution of this Release that any such claim, demand, obligation, or cause
of action has, through ignorance or oversight, been omitted from the scope of
the Release.
This Release is made and entered into, and shall be subject to, governed by
and interpreted in accordance with the laws of the State of New York and shall
be fully enforceable in the courts of that state, without regard to principles
of conflict of laws.
Employee hereby represents that he has been given a period of
13
<PAGE>
twenty-one (21) days to review and consider this Release before signing it.
Employee further understands that he may use none or as much of this 21-day
period as he wishes prior to signing.
Employee is advised that he has the right to and acknowledges that he has
consulted with an attorney before signing this Release.
Employee may revoke this Release within seven (7) days after he signs it.
Revocation can be made by delivering a written notice of revocation to Stephen
A. Block, Senior Vice President, General Counsel and Secretary, IFF Inc., 521
West 57/th/ Street, New York, New York 10019. For such revocation to be
effective, written notice must be received by Mr. Block not later than the close
of business on the seventh day after the day on which Employee executes this
Release. If Employee revokes this Release, it shall not be effective and the
Separation Agreement shall be null and void ab initio.
EMPLOYEE ACKNOWLEDGES THAT HE HAS READ THIS RELEASE, UNDERSTANDS IT AND IS
VOLUNTARILY EXECUTING IT AND THAT NO REPRESENTATIONS, PROMISES OR INDUCEMENTS
HAVE BEEN MADE TO EMPLOYEE EXCEPT AS SET FORTH IN THIS RELEASE VOLUNTARILY, AND
THAT HE INTENDS TO BE LEGALLY BOUND BY ITS TERMS, WITH FULL UNDERSTANDING OF ITS
CONSEQUENCES.
PLEASE READ THIS RELEASE CAREFULLY. IT COVERS ALL KNOWN AND UNKNOWN CLAIMS
INCLUDING CLAIMS UNDER THE FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT.
Executed at New York, New York on November 26, 2000.
14
<PAGE>
/s/ Robert G. Corbett
---------------------------
Robert G. Corbett
15
<PAGE>
SCHEDULE II
-----------
INTERNATIONAL FLAVORS & FRAGRANCES INC.
----------------------------------------
FORM OF REFERENCE PURSUANT TO
SECTION 7 OF SEPARATION AGREEMENT
DATED AS OF NOVEMBER 1, 2000
----------------------------
Over the past several months as part of its strategic planning process, IFF
has been assessing the organization and evaluating what the most effective
structure should be going forward from a strategic and tactical perspective.
Most recently, decisions were made to streamline the organization by combining
the flavor and fragrance divisions in response to the competitive marketplace
and the consolidating industry situation. Specifically, Bob's position was
eliminated and during our discussions Bob indicated that his career options and
continued growth at IFF wold be limited. As a result, we agreed that Bob would
begin looking at outside opportunities.
<PAGE>
SCHEDULE III
SECURITY AGREEMENT
International Flavors & Fragrances Inc.
521 West 57th St. New York, N.Y. 10019
(IFF)
In consideration of my employment by IFF or any its subsidiaries therein
together call IFF. I hereby agree as follows:
1. I acknowledge that in the course of my employment by IFF, I may have
access to, acquire or gain confidential knowledge or information (i) with
respect to formulae, secret processes, plans, devices, products, know-how and
other data belonging or relating to IFF, or (ii) with respect to the identity of
customers of IFF, and the identity of products and the quantity and prices of
the same ordered by such customers. I acknowledge that all such information is
the sole property of IFF and I shall treat it as set forth below.
2. I shall keep confidential all such knowledge or information described
above and shall not divulge it to others nor use it for my own private purposes
or personal gain without the express written consent of IFF. This obligation on
my part shall continue during and after the period of my employment by IFF.
3. Upon termination of my employment or at any time IFF may request. I
shall deliver to IFF all notes, memoranda, formulae, records, files or other
papers, and copies thereof, in my custody relating to any such knowledge or
information described above to which I have had access or which I may have
developed during the term of my employment.
4. I shall not, without the prior written permission of IFF, after
leaving the employ of IFF for any reason, work for others, or for my own account
on any of the secret processes or formulae on which I have worked or to which I
have had access which in the employ of IFF.
5. Any invention, formulae, process, product, idea, discovery and
improvement conceived or developed by me within the period of my employment,
relating to any activity engaged in by IFF, shall be the sole and exclusive
property of IFF and I shall promptly communicate to IFF full information with
respect to any of the foregoing conceived or developed by me. I shall execute
and deliver all documents and do all other things as shall be deemed by IFF to
be necessary and proper to effect the assignment to IFF of the sole and
exclusive right, title and interest in and to all such inventions, formulae,
processes products, ideas, discoveries and improvements, and patent applications
and patents thereon.
6. I understand and agree that IFF has no interest and will not accept
divulgence to it or any confidential knowledge or information which is the
property of any previous employee or other third party. Notwithstanding any
other paragraph of this agreement. I shall not communicate any such confidential
knowledge or information to IFF nor use the same during the course of my
employment.
April 18, 1983 /s/ Robert G. Corbett
- ----------------------- ----------------------------
date (signature)
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-99.10(F)
<SEQUENCE>4
<FILENAME>0004.txt
<DESCRIPTION>SUPPLEMENTAL RETIREMENT INVESTMENT PLAN
<TEXT>
<PAGE>
EXHIBIT 10(f)
INTERNATIONAL FLAVORS & FRAGRANCES INC.
SUPPLEMENTAL RETIREMENT INVESTMENT PLAN ("SRIP")
(adopted 11/14/89; as amended through 6/30/00)
The accrual and payment of benefits under the Company's Retirement
Investment Fund Plan ("RIFP") may be limited by present and future government
rules covering qualified plans. A non-qualified Supplemental Retirement
Investment Plan ("SRIP") is hereby established to accrue each year and pay upon
retirement or other termination of employment that part of the RIFP benefits
that, because of governmentally imposed limitations, cannot be accrued or paid
by the qualified plan.
This Plan shall be unfunded and shall be administered by a SRIP Committee
(the "Committee"), the members of which shall be the same individuals as those
comprising the RIFP Administrative Committee, using on and after October 1, 1994
the record-keeping and accounting services of the Vanguard Group, Inc.
("Vanguard").
The SRIP Plan Year shall be the same as that of the RIFP.
Any employee who is a Participant in the Company's RIFP and for whom
benefits calculated under this Plan would exceed benefits calculated under the
RIFP is also a Participant in this Plan.
<PAGE>
For purposes of this Plan, "Compensation" is defined as follows:
"`Compensation' of any Participant shall mean the basic rate of
monthly compensation from the Company in effect for him or her on the
Compensation Date (as defined in the RIFP), including one-twelfth of
any earnings deferred by him or her in respect of the Plan Year
pursuant to a then effective cash or deferred wage and salary
conversion agreement ("CODA") under Section 401(k) of the Internal
Revenue Code, but excluding compensation for overtime service, shift
differential, bonuses, commissions and all other forms of fringe
compensation or benefits and any amount contributed for him or her by
the Company to any public or private employee benefit plan, including
this Plan, other than contributions corresponding to CODA reductions
referred to above."
Amounts of benefits and rate of compensation calculated for this Plan shall
not be subject to limitations imposed by governmental enactments, rules or
2
<PAGE>
regulations concerning qualified benefit plans, including those limitation
embodied in the RIFP under the "Compensation" and "Nondiscrimination
Requirements" sections.
The calculation of benefits under this Plan for any Plan Year for any
Participant shall be performed as follows: First, the percentage of total
"Compensation" (calculated under the provisions of the RIFP then in effect) of
all RIFP Participants for such year represented by the Company's total
contribution to the RIFP for such year shall be determined to the third decimal
place. Such percentage shall then be applied to the "Compensation" (calculated
under the provisions of this Plan) for such Plan year of such Participant in
this Plan to determine his or her total allocation. Benefits accrued each Plan
Year under this Plan for such Participant and allocated to his or her account
shall be the excess, if any, of the allocation calculated as described above for
this Plan over the contribution allocable to the Participant for the same Plan
Year under the Company's RIFP and shall be payable in an all-cash, lump sum
payment at the same time as the Participant's benefits under the RIFP.
The annual benefit allocated to each Participant's account under this Plan
shall be credited to each
3
<PAGE>
Participant's SRIP account with Vanguard at the end of or as soon as practicable
following the applicable Plan Year and thereafter shall be increased or
decreased in accordance with the investment performance of that one or more of
the following Vanguard mutual funds selected by the Participant as a measurement
vehicle for his(her) SRIP account, until actually paid out to the Participant
from the general assets of IFF:
Vanguard Money Market Reserves Prime Portfolio
Vanguard Bond Index Fund-Total Bond Market Portfolio
Vanguard Long-Term Corporate Bond Portfolio
Vanguard Index Trust 500 Portfolio
Vanguard U.S. Growth Portfolio
Vanguard International Growth Portfolio
The Participant may change from time to time his(her) selection of the
measurement vehicle(s) for his(her) SRIP account by notice to, and in accordance
with the procedures established by, Vanguard.
Amounts payable under this Plan shall not be assignable or subject to
attachment or levy of any kind and may not be borrowed against or withdrawn
prior to retirement or other termination of employment.
The Company may terminate this Plan at any time, whereupon the rights of
Participants to their benefits accrued and adjusted as aforesaid to the date of
such termination shall be nonforfeitable. The Company may amend
4
<PAGE>
this Plan at any time by action of the Board of Directors but no amendment shall
cause a reduction in the amounts theretofore credited to any Participant,
adjusted as aforesaid.
The effective date of this Plan shall be November 14, 1989, and benefits
shall be calculated and accrued hereunder for the 1989 Plan Year and subsequent
Plan Years.
5
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-99.10(G)
<SEQUENCE>5
<FILENAME>0005.txt
<DESCRIPTION>2000 STOCK AWARD AND INCENTIVE PLAN
<TEXT>
<PAGE>
Exhibit 10(g)
INTERNATIONAL FLAVORS & FRAGRANCES INC.
________________________________________________________________________________
2000 Stock Award and Incentive Plan
As Amended and Restated November 14, 2000
________________________________________________________________________________
<TABLE>
<CAPTION>
Page
----
<S> <C>
1. Purpose.......................................................... 1
2. Definitions...................................................... 1
3. Administration................................................... 3
4. Stock Subject to Plan............................................ 4
5. Eligibility; Per-Person Award Limitations........................ 5
6. Specific Terms of Awards......................................... 6
7. Performance Awards, Including Annual Incentive Awards............ 10
8. Certain Provisions Applicable to Awards.......................... 14
9. Change in Control................................................ 15
10. Additional Award Forfeiture Provisions........................... 18
11. General Provisions............................................... 20
</TABLE>
INTERNATIONAL FLAVORS & FRAGRANCES INC.
<PAGE>
2000 Stock Award and Incentive Plan
As Amended and Restated November 14, 2000
1. Purpose. The purpose of this 2000 Stock Award and Incentive Plan (the
"Plan") is to aid International Flavors & Fragrances Inc., a New York
corporation (the "Company"), in attracting, retaining, motivating and rewarding
employees, non-employee directors, and other persons who provide substantial
services to the Company or its subsidiaries or affiliates, to provide for
equitable and competitive compensation opportunities, to recognize individual
contributions and reward achievement of Company goals, and promote the creation
of long-term value for shareholders by closely aligning the interests of
Participants with those of shareholders. The Plan authorizes stock-based and
cash-based incentives for Participants.
2. Definitions. In addition to the terms defined in Section 1 above and
elsewhere in the Plan, the following capitalized terms used in the Plan have the
respective meanings set forth in this Section:
(a) "Annual Incentive Award" means a type of Performance Award
granted to a Participant under Section 7(c) representing a conditional
right to receive cash, Stock or other Awards or payments, as determined by
the Committee, based on performance in a performance period of one fiscal
year or a portion thereof.
(b) "Award" means any cash award, Option, SAR, Restricted Stock,
Deferred Stock, Stock granted as a bonus or in lieu of another award,
Dividend Equivalent, Other Stock-Based Award, Performance Award or Annual
Incentive Award, together with any related right or interest, granted to a
Participant under the Plan.
(c) "Beneficiary" means any family member or members, including by
marriage or adoption, any trust in which the Participant or any family
member or members have more than 50% of the beneficial interest, and any
other entity in which the Participant or any family member or members own
more than 50% of the voting interests, in each case designated by the
Participant in his most recent written Beneficiary designation filed with
the Committee as entitled to exercise rights or receive benefits in
connection with the Award (or any portion thereof), or if there is no
surviving designated Beneficiary, then the person, persons, trust or trusts
entitled by will or the laws of descent and distribution to exercise rights
or receive benefits in connection with the Award on behalf or in lieu of
such non-surviving designated Beneficiary.
(d) "Board" means the Company's Board of Directors.
(e) "Change in Control" and related terms have the meanings specified
in Section 9.
- 1 -
<PAGE>
(f) "Code" means the Internal Revenue Code of 1986, as amended.
References to any provision of the Code or regulation (including a proposed
regulation) thereunder shall include any successor provisions and
regulations.
(g) "Committee" means a committee of two or more directors designated
by the Board to administer the Plan; provided, however, that, directors
appointed or serving as members of a Board committee designated as the
Committee shall not be employees of the Company or any subsidiary or
affiliate. In appointing members of the Committee, the Board will consider
whether a member is or will be a Qualified Member, but such members are not
required to be Qualified Members at the time of appointment or during their
term of service on the Committee. The full Board may perform any function
of the Committee hereunder, in which case the term "Committee" shall refer
to the Board.
(h) "Covered Employee" means an Eligible Person who is a Covered
Employee as specified in Section 11(j).
(i) "Deferred Stock" means a right, granted to a Participant under
Section 6(e), to receive Stock or other Awards or a combination thereof at
the end of a specified deferral period.
(j) "Dividend Equivalent" means a right, granted to a Participant
under Section 6(g), to receive cash, Stock, other Awards or other property
equal in value to all or a specified portion of the dividends paid with
respect to a specified number of shares of Stock.
(k) "Effective Date" means the effective date specified in Section
11(p).
(l) "Eligible Person" has the meaning specified in Section 5.
(m) "Exchange Act" means the Securities Exchange Act of 1934, as
amended. References to any provision of the Exchange Act or rule (including
a proposed rule) thereunder shall include any successor provisions and
rules.
(n) "Fair Market Value" means the fair market value of Stock, Awards
or other property as determined by the Committee or under procedures
established by the Committee. Unless otherwise determined by the Committee,
the Fair Market Value of Stock shall be the closing sale price reported on
the composite tape of the New York Stock Exchange on the day as of which
such value is being determined or, if there is no sale on that day, then on
the last previous day on which a sale was reported.
(o) "Incentive Stock Option" or "ISO" means any Option designated as
an incentive stock option within the meaning of Code Section 422 or any
successor provision thereto and qualifying thereunder.
(p) "Option" means a right, granted to a Participant under Section
6(b), to purchase Stock or other Awards at a specified price during
specified time periods.
- 2 -
<PAGE>
(q) "Other Stock-Based Awards" means Awards granted to a Participant
under Section 6(h).
(r) "Participant" means a person who has been granted an Award under
the Plan which remains outstanding, including a person who is no longer an
Eligible Person.
(s) "Performance Award" means a conditional right, granted to a
Participant under Sections 6(i) and 7, to receive cash, Stock or other
Awards or payments, as determined by the Committee, based upon performance
criteria specified by the Committee.
(t) "Qualified Member" means a member of the Committee who is a "Non-
Employee Director" within the meaning of Rule 16b-3(b)(3) and an "outside
director" within the meaning of Regulation 1.162-27 under Code Section
162(m).
(u) "Restricted Stock" means Stock granted to a Participant under
Section 6(d) which is subject to certain restrictions and to a risk of
forfeiture.
(v) "Rule 16b-3" means Rule 16b-3, as from time to time in effect and
applicable to Participants, promulgated by the Securities and Exchange
Commission under Section 16 of the Exchange Act.
(w) "Stock" means the Company's Common Stock, and any other equity
securities of the Company that may be substituted or resubstituted for
Stock pursuant to Section 11(c).
(x) "Stock Appreciation Rights" or "SAR" means a right granted to a
Participant under Section 6(c).
3. Administration.
(a) Authority of the Committee. The Plan shall be administered by the
Committee, which shall have full and final authority, in each case subject
to and consistent with the provisions of the Plan, to select Eligible
Persons to become Participants; to grant Awards; to determine the type and
number of Awards, the dates on which Awards may be exercised and on which
the risk of forfeiture or deferral period relating to Awards shall lapse or
terminate, the acceleration of any such dates, the expiration date of any
Award, whether, to what extent, and under what circumstances an Award may
be settled, or the exercise price of an Award may be paid, in cash, Stock,
other Awards, or other property, and other terms and conditions of, and all
other matters relating to, Awards; to prescribe documents evidencing or
setting terms of Awards (such Award documents need not be identical for
each Participant), amendments thereto, and rules and regulations for the
administration of the Plan and amendments thereto; to construe and
interpret the Plan and Award documents and correct defects, supply
omissions or reconcile inconsistencies therein; and to make all other
decisions and determinations as the Committee may deem necessary or
advisable for the administration of the Plan. Decisions of the Committee
with respect to the administration and interpretation of the Plan shall be
final, conclusive, and binding upon all persons interested in the Plan,
including Participants, Beneficiaries, transferees under Section 11(b) and
other persons claiming rights from or through a Participant, and
shareholders. The foregoing notwithstanding, the Board shall perform the
- 3 -
<PAGE>
functions of the Committee for purposes of granting Awards under the Plan
to non-employee directors (authority with respect to other aspects of non-
employee director awards is not exclusive to the Board, however).
(b) Manner of Exercise of Committee Authority. At any time that a
member of the Committee is not a Qualified Member, (i) any action of the
Committee relating to an Award intended by the Committee to qualify as
"performance-based compensation" within the meaning of Code Section 162(m)
and regulations thereunder may be taken by a subcommittee, designated by
the Committee or the Board, composed solely of two or more Qualified
Members, and (ii) any action relating to an Award granted or to be granted
to a Participant who is then subject to Section 16 of the Exchange Act in
respect of the Company may be taken either by such a subcommittee or by the
Committee but with each such member who is not a Qualified Member
abstaining or recusing himself or herself from such action, provided that,
upon such abstention or recusal, the Committee remains composed of two or
more Qualified Members. Such action, authorized by such a subcommittee or
by the Committee upon the abstention or recusal of such non-Qualified
Member(s), shall be the action of the Committee for purposes of the Plan.
The express grant of any specific power to the Committee, and the taking of
any action by the Committee, shall not be construed as limiting any power
or authority of the Committee. The Committee may delegate to officers or
managers of the Company or any subsidiary or affiliate, or committees
thereof, the authority, subject to such terms as the Committee shall
determine, to perform such functions, including administrative functions,
as the Committee may determine, to the extent that such delegation will not
result in the loss of an exemption under Rule 16b-3(d) for Awards granted
to Participants subject to Section 16 of the Exchange Act in respect of the
Company and will not cause Awards intended to qualify as "performance-based
compensation" under Code Section 162(m) to fail to so qualify.
(c) Limitation of Liability. The Committee and each member thereof,
and any person acting pursuant to authority delegated by the Committee,
shall be entitled, in good faith, to rely or act upon any report or other
information furnished by any executive officer, other officer or employee
of the Company or a subsidiary or affiliate, the Company's independent
auditors, consultants or any other agents assisting in the administration
of the Plan. Members of the Committee, any person acting pursuant to
authority delegated by the Committee, and any officer or employee of the
Company or a subsidiary or affiliate acting at the direction or on behalf
of the Committee or a delegee shall not be personally liable for any action
or determination taken or made in good faith with respect to the Plan, and
shall, to the extent permitted by law, be fully indemnified and protected
by the Company with respect to any such action or determination.
4. Stock Subject to Plan.
(a) Overall Number of Shares Available for Delivery. Subject to
adjustment as provided in Section 11(c), the total number of shares of
Stock reserved and available for delivery in connection with Awards under
the Plan shall be 4.5 million shares, and the total number of shares with
respect to which ISOs may be granted shall not exceed such number;
provided, that the total number of shares which may be issued and delivered
in connection with Awards other than Options and SARs shall not exceed 30%
of the total number of shares reserved under the Plan. Any shares of Stock
delivered under the Plan shall consist of authorized and unissued shares or
treasury shares.
- 4 -
<PAGE>
(b) Share Counting Rules. The Committee may adopt reasonable counting
procedures to ensure appropriate counting, avoid double counting (as, for
example, in the case of tandem or substitute awards) and make adjustments
if the number of shares of Stock actually delivered differs from the number
of shares previously counted in connection with an Award. Shares subject to
an Award that is canceled, expired, forfeited, settled in cash or otherwise
terminated without a delivery of shares to the Participant will again be
available for Awards, and shares withheld in payment of the exercise price
or taxes relating to an Award and shares equal to the number surrendered in
payment of any exercise price or taxes relating to an Award shall be deemed
to constitute shares not delivered to the Participant and shall be deemed
to again be available for Awards under the Plan. In addition, in the case
of any Award granted in substitution for an award of a company or business
acquired by the Company or a subsidiary or affiliate, shares issued or
issuable in connection with such substitute Award shall not be counted
against the number of shares reserved under the Plan, but shall be
available under the Plan by virtue of the Company's assumption of the plan
or arrangement of the acquired company or business. This Section 4(b) shall
apply to the number of shares reserved and available for ISOs only to the
extent consistent with applicable regulations relating to ISOs under the
Code.
5. Eligibility; Per-Person Award Limitations. Awards may be granted under
the Plan only to Eligible Persons. For purposes of the Plan, an "Eligible
Person" means an employee of the Company or any subsidiary or affiliate,
including any executive officer, a non-employee director of the Company, a
consultant or other person who provides substantial services to the Company or a
subsidiary or affiliate, and any person who has been offered employment by the
Company or a subsidiary or affiliate, provided that such prospective employee,
non-employee director, consultant or other person may not receive any payment or
exercise any right relating to an Award until such person has commenced
employment with or providing of services to the Company or a subsidiary or
affiliate. An employee on leave of absence may be considered as still in the
employ of the Company or a subsidiary or affiliate for purposes of eligibility
for participation in the Plan. For purposes of the Plan, a joint venture in
which the Company or a subsidiary has a substantial direct or indirect equity
investment shall be deemed an affiliate, if so determined by the Committee. In
each calendar year during any part of which the Plan is in effect, an Eligible
Person may be granted Awards intended to qualify as "performance-based
compensation" under Code Section 162(m) under each of Section 6(b), 6(c), 6(d),
6(e), 6(f), 6(g) or 6(h) relating to up to his or her Annual Limit (such Annual
Limit to apply separately to the type of Award authorized under each specified
subsection, except that the limitation applies to Dividend Equivalents under
Section 6(g) only if such Dividend Equivalents are granted separately from and
not as a feature of another Award). A Participant's Annual Limit, in any year
during any part of which the Participant is then eligible under the Plan, shall
equal two million shares plus the amount of the Participant's unused Annual
Limit relating to the same type of Award as of the close of the previous year,
subject to adjustment as provided in Section 11(c). In the case of an Award
which is not valued in a way in which the limitation set forth in the preceding
sentence would operate as an effective limitation satisfying Treasury Regulation
1.162-27(e)(4) (including Performance Awards under Section 7 not related to an
Award specified in Section 6), the maximum amount of an Annual Incentive Award
under Section 7(c) that may be earned by an Eligible Person in any year shall be
50% of the amount of the Annual Incentive Pool specified in Section 7(c)(ii),
and the maximum amount of such an Award other than an Annual Incentive Award
under Section 7(c) that may be earned by an Eligible Person during any
- 5 -
<PAGE>
calendar year shall be equal to the Participant's Annual Limit, which for this
purpose shall equal $6 million plus the amount of the Participant's unused cash
Annual Limit for such Awards other than Annual Incentive Awards as of the close
of the previous year. For purposes of this Section 5, (i) the limitation on
share-based awards, the limitation on the earning of Annual Incentive Awards,
and the limitation on the earning of non-share-based Awards other than Annual
Incentive Awards each is a separate limitation, which is not decreased by the
authorization or payout of Awards that are subject to the other limitations;
(ii) "earning" means satisfying performance conditions so that an amount becomes
payable, without regard to whether it is to be paid currently or on a deferred
basis or continues to be subject to any service requirement or other non-
performance condition; and (iii) a Participant's Annual Limit is used to the
extent an amount or number of shares may be potentially earned or paid under an
Award, regardless of whether such amount or shares are in fact earned or paid.
6. Specific Terms of Awards.
(a) General. Awards may be granted on the terms and conditions set
forth in this Section 6. In addition, the Committee may impose on any Award
or the exercise thereof, at the date of grant or thereafter (subject to
Section 11(e)), such additional terms and conditions, not inconsistent with
the provisions of the Plan, as the Committee shall determine, including
terms requiring forfeiture of Awards in the event of termination of
employment or service by the Participant and terms permitting a Participant
to make elections relating to his or her Award. The Committee shall retain
full power and discretion with respect to any term or condition of an Award
that is not mandatory under the Plan. The Committee shall require the
payment of lawful consideration for an Award to the extent necessary to
satisfy the requirements of the New York Business Corporation Law, and may
otherwise require payment of consideration for an Award except as limited
by the Plan.
(b) Options. The Committee is authorized to grant Options to
Participants on the following terms and conditions:
(i) Exercise Price. The exercise price per share of Stock
purchasable under an Option (including both ISOs and non-qualified
Options) shall be determined by the Committee, provided that such
exercise price shall be not less than the Fair Market Value of a share
of Stock on the date of grant of such Option, subject to Sections 6(f)
and 8(a).
(ii) Option Term; Time and Method of Exercise. The Committee
shall determine the term of each Option, provided that in no event
shall the term of any ISO or SAR in tandem therewith exceed a period
of ten years from the date of grant. The Committee shall determine the
time or times at which or the circumstances under which an Option may
be exercised in whole or in part (including based on achievement of
performance goals and/or future service requirements), the methods by
which such exercise price may be paid or deemed to be paid and the
form of such payment (subject to Section 11(k)), including, without
limitation, cash, Stock, other Awards or awards granted under other
plans of the Company or any subsidiary or affiliate, or other property
(including notes and other contractual obligations of Participants to
make payment on a deferred basis, such as through "cashless exercise"
arrangements, to the extent permitted by applicable law), and the
methods by or forms in which Stock will be delivered or deemed to be
delivered in satisfaction
- 6 -
<PAGE>
of Options to Participants (including deferred delivery of shares
representing the Option "profit," at the election of the Participant
or as mandated by the Committee, with such deferred shares subject to
any vesting, forfeiture or other terms as the Committee may specify).
(iii) ISOs. The terms of any ISO granted under the Plan shall
comply in all respects with the provisions of Code Section 422,
including but not limited to the requirement that no ISO shall be
granted more than ten years after the Effective Date.
(c) Stock Appreciation Rights. The Committee is authorized to grant
SAR's to Participants on the following terms and conditions:
(i) Right to Payment. An SAR shall confer on the Participant
to whom it is granted a right to receive, upon exercise thereof, the
excess of (A) the Fair Market Value of one share of Stock on the date
of exercise (or, in the case of a "Limited SAR," the Fair Market Value
determined by reference to the Change in Control Price, as defined
under Section 9(d) hereof) over (B) the grant price of the SAR as
determined by the Committee.
(ii) Other Terms. The Committee shall determine at the date of
grant or thereafter, the time or times at which and the circumstances
under which a SAR may be exercised in whole or in part (including
based on achievement of performance goals and/or future service
requirements), the method of exercise, method of settlement, form of
consideration payable in settlement, method by or forms in which Stock
will be delivered or deemed to be delivered to Participants, and
whether or not a SAR shall be free-standing or in tandem or
combination with any other Award. Limited SARs that may only be
exercised in connection with a Change in Control or other event as
specified by the Committee may be granted on such terms, not
inconsistent with this Section 6(c), as the Committee may determine.
(d) Restricted Stock. The Committee is authorized to grant Restricted
Stock to Participants on the following terms and conditions:
(i) Grant and Restrictions. Restricted Stock shall be subject
to such restrictions on transferability, risk of forfeiture and other
restrictions, if any, as the Committee may impose, which restrictions
may lapse separately or in combination at such times, under such
circumstances (including based on achievement of performance goals
and/or future service requirements), in such installments or otherwise
and under such other circumstances as the Committee may determine at
the date of grant or thereafter. The foregoing notwithstanding,
Restricted Stock will vest over a minimum period of one year except in
the event of a Participant's death, disability, or retirement, or in
the event of a Change in Control or other special circumstances. For
purposes of this Section 6(d), vesting over a one-year period will
include periodic vesting over such period if the rate of such vesting
is proportional throughout such period. Except to the extent
restricted under the terms of the Plan and any Award document relating
to the Restricted Stock, a Participant granted Restricted Stock shall
have all of the rights of a shareholder, including the right to vote
the Restricted Stock and the right to receive dividends thereon
(subject to any mandatory reinvestment or other requirement imposed by
the Committee).
- 7 -
<PAGE>
(ii) Forfeiture. Except as otherwise determined by the
Committee, upon termination of employment or service during the
applicable restriction period, Restricted Stock that is at that time
subject to restrictions shall be forfeited and reacquired by the
Company; provided that the Committee may provide, by rule or
regulation or in any Award document, or may determine in any
individual case, that restrictions or forfeiture conditions relating
to Restricted Stock will lapse in whole or in part, including in the
event of terminations resulting from specified causes.
(iii) Certificates for Stock. Restricted Stock granted under the
Plan may be evidenced in such manner as the Committee shall determine.
If certificates representing Restricted Stock are registered in the
name of the Participant, the Committee may require that such
certificates bear an appropriate legend referring to the terms,
conditions and restrictions applicable to such Restricted Stock, that
the Company retain physical possession of the certificates, and that
the Participant deliver a stock power to the Company, endorsed in
blank, relating to the Restricted Stock.
(iv) Dividends and Splits. As a condition to the grant of an
Award of Restricted Stock, the Committee may require that any
dividends paid on a share of Restricted Stock shall be either (A) paid
with respect to such Restricted Stock at the dividend payment date in
cash, in kind, or in a number of shares of unrestricted Stock having a
Fair Market Value equal to the amount of such dividends, or (B)
automatically reinvested in additional Restricted Stock or held in
kind, which shall be subject to the same terms as applied to the
original Restricted Stock to which it relates, or (C) deferred as to
payment, either as a cash deferral or with the amount or value thereof
automatically deemed reinvested in shares of Deferred Stock, other
Awards or other investment vehicles, subject to such terms as the
Committee shall determine or permit a Participant to elect. Unless
otherwise determined by the Committee, Stock distributed in connection
with a Stock split or Stock dividend, and other property distributed
as a dividend, shall be subject to restrictions and a risk of
forfeiture to the same extent as the Restricted Stock with respect to
which such Stock or other property has been distributed.
(e) Deferred Stock. The Committee is authorized to grant Deferred
Stock to Participants, which are rights to receive Stock, other Awards, or
a combination thereof at the end of a specified deferral period, subject to
the following terms and conditions:
(i) Award and Restrictions. Issuance of Stock will occur upon
expiration of the deferral period specified for an Award of Deferred
Stock by the Committee (or, if permitted by the Committee, as elected
by the Participant). In addition, Deferred Stock shall be subject to
such restrictions on transferability, risk of forfeiture and other
restrictions, if any, as the Committee may impose, which restrictions
may lapse at the expiration of the deferral period or at earlier
specified times (including based on achievement of performance goals
and/or future service requirements), separately or in combination, in
installments or otherwise, and under such other circumstances as the
Committee may determine at the date of grant or thereafter. Deferred
Stock may be satisfied by delivery of Stock, other Awards, or a
combination thereof (subject to Section 11(k)), as determined by the
Committee at the date of grant or thereafter.
- 8 -
<PAGE>
(ii) Forfeiture. Except as otherwise determined by the
Committee, upon termination of employment or service during the
applicable deferral period or portion thereof to which forfeiture
conditions apply (as provided in the Award document evidencing the
Deferred Stock), all Deferred Stock that is at that time subject to
such forfeiture conditions shall be forfeited; provided that the
Committee may provide, by rule or regulation or in any Award document,
or may determine in any individual case, that restrictions or
forfeiture conditions relating to Deferred Stock will lapse in whole
or in part, including in the event of terminations resulting from
specified causes.
(iii) Dividend Equivalents. Unless otherwise determined by the
Committee, Dividend Equivalents on the specified number of shares of
Stock covered by an Award of Deferred Stock shall be either (A) paid
with respect to such Deferred Stock at the dividend payment date in
cash or in shares of unrestricted Stock having a Fair Market Value
equal to the amount of such dividends, or (B) deferred with respect to
such Deferred Stock, either as a cash deferral or with the amount or
value thereof automatically deemed reinvested in additional Deferred
Stock, other Awards or other investment vehicles having a Fair Market
Value equal to the amount of such dividends, as the Committee shall
determine or permit a Participant to elect.
(f) Bonus Stock and Awards in Lieu of Obligations. The Committee is
authorized to grant Stock as a bonus, or to grant Stock or other Awards in
lieu of obligations of the Company or a subsidiary or affiliate to pay cash
or deliver other property under the Plan or under other plans or
compensatory arrangements, subject to such terms as shall be determined by
the Committee.
(g) Dividend Equivalents. The Committee is authorized to grant
Dividend Equivalents to a Participant, entitling the Participant to receive
cash, Stock, other Awards, or other property equivalent to all or a portion
of the dividends paid with respect to a specified number of shares of
Stock. Dividend Equivalents may be awarded on a free-standing basis or in
connection with another Award. The Committee may provide that Dividend
Equivalents shall be paid or distributed when accrued or shall be deemed to
have been reinvested in additional Stock, Awards, or other investment
vehicles, and subject to restrictions on transferability, risks of
forfeiture and such other terms as the Committee may specify.
(h) Other Stock-Based Awards. The Committee is authorized, subject to
limitations under applicable law, to grant to Participants such other
Awards that may be denominated or payable in, valued in whole or in part by
reference to, or otherwise based on, or related to, Stock or factors that
may influence the value of Stock, including, without limitation,
convertible or exchangeable debt securities, other rights convertible or
exchangeable into Stock, purchase rights for Stock, Awards with value and
payment contingent upon performance of the Company or business units
thereof or any other factors designated by the Committee, and Awards valued
by reference to the book value of Stock or the value of securities of or
the performance of specified subsidiaries or affiliates or other business
units. The Committee shall determine the terms and conditions of such
Awards. Stock delivered pursuant to an Award in the nature of a purchase
right granted under this Section 6(h) shall be purchased for such
consideration, paid for at such times, by such methods, and in such forms,
including, without limitation, cash, Stock, other Awards, notes, or other
property, as the Committee shall determine. Cash awards, as an element of
or
- 9 -
<PAGE>
supplement to any other Award under the Plan, may also be granted pursuant
to this Section 6(h).
(i) Performance Awards. Performance Awards, denominated in cash or in
Stock or other Awards, may be granted by the Committee in accordance with
Section 7.
7. Performance Awards, Including Annual Incentive Awards.
(a) Performance Awards Generally. The Committee is authorized to
grant Performance Awards on the terms and conditions specified in this
Section 7. Performance Awards may be denominated as a cash amount, number
of shares of Stock, or specified number of other Awards (or a combination)
which may be earned upon achievement or satisfaction of performance
conditions specified by the Committee. In addition, the Committee may
specify that any other Award shall constitute a Performance Award by
conditioning the right of a Participant to exercise the Award or have it
settled, and the timing thereof, upon achievement or satisfaction of such
performance conditions as may be specified by the Committee. The Committee
may use such business criteria and other measures of performance as it may
deem appropriate in establishing any performance conditions, and may
exercise its discretion to reduce or increase the amounts payable under any
Award subject to performance conditions, except as limited under Sections
7(b) and 7(c) in the case of a Performance Award intended to qualify as
"performance-based compensation" under Code Section 162(m).
(b) Performance Awards Granted to Covered Employees. If the Committee
determines that a Performance Award to be granted to an Eligible Person who
is designated by the Committee as likely to be a Covered Employee should
qualify as "performance-based compensation" for purposes of Code Section
162(m), the grant, exercise and/or settlement of such Performance Award
shall be contingent upon achievement of a preestablished performance goal
and other terms set forth in this Section 7(b).
(i) Performance Goal Generally. The performance goal for such
Performance Awards shall consist of one or more business criteria and
a targeted level or levels of performance with respect to each of such
criteria, as specified by the Committee consistent with this Section
7(b). The performance goal shall be objective and shall otherwise meet
the requirements of Code Section 162(m) and regulations thereunder
(including Regulation 1.162-27 and successor regulations thereto),
including the requirement that the level or levels of performance
targeted by the Committee result in the achievement of performance
goals being "substantially uncertain." The Committee may determine
that such Performance Awards shall be granted, exercised and/or
settled upon achievement of any one performance goal or that two or
more of the performance goals must be achieved as a condition to
grant, exercise and/or settlement of such Performance Awards.
Performance goals may differ for Performance Awards granted to any one
Participant or to different Participants.
(ii) Business Criteria. One or more of the following business
criteria for the Company, on a consolidated basis, and/or for
specified subsidiaries or affiliates or other business units of the
Company shall be used by the Committee in establishing
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performance goals for such Performance Awards: (1) net sales; (2)
earnings from operations, earnings before or after taxes, earnings
before or after interest, depreciation, amortization, or extraordinary
or special items; (3) net income or net income per common share (basic
or diluted); (4) return on assets (gross or net), return on
investment, return on capital, or return on equity; (5) cash flow,
free cash flow, cash flow return on investment (discounted or
otherwise), net cash provided by operations, or cash flow in excess of
cost of capital; (6) economic value created; (7) operating margin or
profit margin; (8) stock price or total shareholder return; (9)
dividend payout as a percentage of net income; and (10) strategic
business criteria, consisting of one or more objectives based on
meeting specified market penetration, geographic business expansion
goals, cost targets, customer satisfaction, employee satisfaction,
management of employment practices and employee benefits, supervision
of litigation and information technology, and goals relating to
acquisitions or divestitures of subsidiaries, affiliates or joint
ventures. The targeted level or levels of performance with respect to
such business criteria may be established at such levels and in such
terms as the Committee may determine, in its discretion, including in
absolute terms, as a goal relative to performance in prior periods, or
as a goal compared to the performance of one or more comparable
companies or an index covering multiple companies.
(iii) Performance Period; Timing for Establishing Performance
Goals; Per-Person Limit. Achievement of performance goals in respect
of such Performance Awards shall be measured over a performance period
of up to one year or more than one year, as specified by the
Committee. A performance goal shall be established not later than the
earlier of (A) 90 days after the beginning of any performance period
applicable to such Performance Award or (B) the time 25% of such
performance period has elapsed. In all cases, the maximum Performance
Award of any Participant shall be subject to the limitation set forth
in Section 5.
(iv) Performance Award Pool. The Committee may establish a
Performance Award pool, which shall be an unfunded pool, for purposes
of measuring performance of the Company in connection with Performance
Awards. The amount of such Performance Award pool shall be based upon
the achievement of a performance goal or goals based on one or more of
the business criteria set forth in Section 7(b)(ii) during the given
performance period, as specified by the Committee in accordance with
Section 7(b)(iv). The Committee may specify the amount of the
Performance Award pool as a percentage of any of such business
criteria, a percentage thereof in excess of a threshold amount, or as
another amount which need not bear a strictly mathematical
relationship to such business criteria.
(v) Settlement of Performance Awards; Other Terms. Settlement
of such Performance Awards shall be in cash, Stock, other Awards or
other property, in the discretion of the Committee. The Committee may,
in its discretion, increase or reduce the amount of a settlement
otherwise to be made in connection with such Performance Awards, but
may not exercise discretion to increase any such amount payable to a
Covered Employee in respect of a Performance Award subject to this
Section 7(b). Any settlement which changes the form of payment from
that originally specified shall be implemented in a manner such that
the Performance Award and other related Awards do not, solely for that
reason, fail to qualify as "performance-based compensation" for
purposes of Code Section 162(m). The Committee shall
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specify the circumstances in which such Performance Awards shall be paid or
forfeited in the event of termination of employment by the Participant or
other event (including a Change in Control) prior to the end of a
performance period or settlement of such Performance Awards.
(c) Annual Incentive Awards Granted to Designated Covered Employees. The
Committee may grant an Annual Incentive Award to an Eligible Person who is
designated by the Committee as likely to be a Covered Employee. Such Annual
Incentive Award will be intended to qualify as "performance-based compensation"
for purposes of Code Section 162(m), and therefore its grant, exercise and/or
settlement shall be contingent upon achievement of preestablished performance
goals and other terms set forth in this Section 7(c).
(i) Grant of Annual Incentive Awards. Not later than the earlier of
90 days after the beginning of any performance period applicable to such
Annual Incentive Award or the time 25% of such performance period has
elapsed, the Committee shall determine the Covered Employees who will
potentially receive Annual Incentive Awards, and the amount(s) potentially
payable thereunder, for that performance period. The amount(s) potentially
payable as Annual Incentive Awards may be earned and become payable under
the Plan only if and to the extent the Annual Incentive Pool, specified in
Section 7(c)(ii), has become hypothetically funded. The portion of the
Annual Incentive Award pool potentially payable to each Covered Employee
shall be preestablished by the Committee. The foregoing notwithstanding, if
any portion of the Annual Incentive Pool for a given fiscal year is not
allocated and paid out for that year, the Committee, at any time after such
fiscal year, may allocate and pay out from such then-unallocated amounts of
hypothetical funding remaining an Award to any Eligible Person other than a
Covered Employee, but such allocations may not affect the allocations or
payouts to any Covered Employee. In all cases, the maximum Annual Incentive
Award of any Participant shall be subject to the limitation set forth in
Section 5. This Section 7(c) does not preclude the Committee from granting
a Performance Award under Section 7(b) based on performance in a period of
one year or less, in addition to or in lieu of an Annual Incentive Award
under this Section 7(c).
(ii) Creation of Annual Incentive Pool. The Annual Incentive Pool for
each fiscal year of the Company shall equal 10% of the amount by which the
"pretax consolidated earnings" (as hereinafter defined) for such year shall
exceed 20% of "net capital" (as hereinafter defined) for such year;
provided, however, that the Annual Incentive Pool shall not exceed for any
year 10% of the amount of cash dividends paid by the Company in such year.
As soon as practicable after the end of each year the amount of the Annual
Incentive Pool for such year shall be audited by the Company's independent
public accountants and shall be reported by them to the Committee. The term
"pretax consolidated earnings" for any fiscal year means the sum of (i) the
consolidated net earnings of the Company and its subsidiaries for such year
before (A) extraordinary items determined in accordance with generally
accepted accounting principles and (B) the cumulative effect of accounting
changes, as contained in the financial statements audited by the Company's
independent public accountants and reported by the Company in its annual
report to shareholders for such year, (ii) the provision for all taxes on
income for such year, as contained in the financial statements audited by
the Company's independent public accountants
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and reported by the Company in its annual report to shareholders for such
year, and (iii) the amount of the Annual Incentive Pool for such year, as
audited by the Company's independent public accountants and reported to the
Committee as contemplated above. The term "net capital" for any year shall
mean the arithmetic average of the amounts of the consolidated capital and
surplus of the Company as at the beginning and the end of such year before
(A) and (B) above, as such consolidated capital and surplus as of each such
date is audited by the Company's independent public accountants and
reported by the Company in its annual report to shareholders for the prior
year (with respect to the consolidated capital and surplus as at the
beginning of such year) and for such year (with respect to the consolidated
capital and surplus as at the end of such year). The Annual Incentive Pool
shall be an unfunded pool established for the purpose of measuring
performance of the Company to determine compensation in connection with
Awards. Unallocated amounts of hypothetical funding of the Annual Incentive
Pool for a given fiscal year will not be added to the Annual Incentive Pool
for a subsequent year.
(iii) Payout of Annual Incentive Awards. After the end of each
performance period, the Committee shall determine the amount, if any, of
the Annual Incentive Award for that performance period payable to each
Participant. The Committee may, in its discretion, determine that the
amount payable to any Participant as a final Annual Incentive Award shall
be reduced from the amount of his or her potential Annual Incentive Award,
including a determination to make no final Award whatsoever, but may not
exercise discretion to increase any such amount. The Committee shall
specify the circumstances in which an Annual Incentive Award shall be paid
or forfeited in the event of termination of employment by the Participant
or other event (including a Change in Control) prior to the end of a
performance period or settlement of such Annual Incentive Award.
(d) Written Determinations. Determinations by the Committee as to the
establishment of performance goals, the amount potentially payable in respect of
Performance Awards and Annual Incentive Awards, the level of actual achievement
of the specified performance goals relating to Performance Awards and Annual
Incentive Awards, the level of hypothetical funding of the Annual Incentive Pool
and the amount of any final Performance Award and Annual Incentive Award shall
be recorded in writing in the case of Performance Awards intended to qualify
under Section 162(m). Specifically, the Committee shall certify in writing, in a
manner conforming to applicable regulations under Section 162(m), prior to
settlement of each such Award granted to a Covered Employee, that the
performance objective relating to the Performance Award and other material terms
of the Award upon which settlement of the Award was conditioned have been
satisfied.
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8. Certain Provisions Applicable to Awards.
(a) Stand-Alone, Additional, Tandem, and Substitute Awards. Awards granted
under the Plan may, in the discretion of the Committee, be granted either alone
or in addition to, in tandem with, or in substitution or exchange for, any other
Award or any award granted under another plan of the Company, any subsidiary or
affiliate, or any business entity to be acquired by the Company or a subsidiary
or affiliate, or any other right of a Participant to receive payment from the
Company or any subsidiary or affiliate. Awards granted in addition to or in
tandem with other Awards or awards may be granted either as of the same time as
or a different time from the grant of such other Awards or awards. Subject to
Section 11(k), the Committee may determine that, in granting a new Award, the
in-the-money value of any surrendered Award or award may be applied to reduce
the exercise price of any Option, grant price of any SAR, or purchase price of
any other Award.
(b) Term of Awards. The term of each Award shall be for such period as may
be determined by the Committee, subject to the express limitations set forth in
Section 6(b)(ii).
(c) Form and Timing of Payment under Awards; Deferrals. Subject to the
terms of the Plan (including Section 11(k)) and any applicable Award document,
payments to be made by the Company or a subsidiary or affiliate upon the
exercise of an Option or other Award or settlement of an Award may be made in
such forms as the Committee shall determine, including, without limitation,
cash, Stock, other Awards or other property, and may be made in a single payment
or transfer, in installments, or on a deferred basis. The settlement of any
Award may be accelerated, and cash paid in lieu of Stock in connection with such
settlement, in the discretion of the Committee or upon occurrence of one or more
specified events (subject to Section 11(k)). Installment or deferred payments
may be required by the Committee (subject to Section 11(e)) or permitted at the
election of the Participant on terms and conditions established by the
Committee. Payments may include, without limitation, provisions for the payment
or crediting of reasonable interest on installment or deferred payments or the
grant or crediting of Dividend Equivalents or other amounts in respect of
installment or deferred payments denominated in Stock.
(d) Exemptions from Section 16(b) Liability. With respect to a Participant
who is then subject to the reporting requirements of Section 16(a) of the
Exchange Act in respect of the Company, the Committee shall implement
transactions under the Plan and administer the Plan in a manner that will ensure
that each transaction with respect to such a Participant is exempt from
liability under Rule 16b-3 or otherwise not subject to liability under Section
16(b)), except that this provision shall not limit sales by such a Participant,
and such a Participant may engage in other non-exempt transactions under the
Plan. The Committee may authorize the Company to repurchase any Award or shares
of Stock deliverable or delivered in connection with any Award (subject to
Section 11(k)) in order to avoid a Participant who is subject to Section 16 of
the Exchange Act incurring liability under Section 16(b). Unless otherwise
specified by the Participant, equity securities or derivative securities
acquired under the Plan which are disposed of by a Participant shall be deemed
to be disposed of in the order acquired by the Participant.
(e) Loan Provisions. With the consent of the Committee, and subject at all
times to, and only to the extent, if any, permitted under and in accordance
with, laws and regulations and other binding obligations or provisions
applicable to the Company, the
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Company may make, guarantee, or arrange for a loan or loans to a Participant
with respect to the exercise of any Option or other payment in connection with
any Award, including the payment by a Participant of any or all federal, state,
or local income or other taxes due in connection with any Award. Subject to such
limitations, the Committee shall have full authority to decide whether to make a
loan or loans hereunder and to determine the amount, terms, and provisions of
any such loan or loans, including the interest rate, if any, to be charged in
respect of any such loan or loans, whether the loan or loans are to be with or
without recourse against the borrower, the terms on which the loan is to be
repaid and conditions, if any, under which the loan or loans may be forgiven.
9. Change in Control.
(a) Effect of "Change in Control" on Non-Performance Based Awards. In the
event of a "Change in Control," the following provisions shall apply to non-
performance based Awards, including Awards as to which performance conditions
previously have been satisfied or are deemed satisfied under Section 9(b),
unless otherwise provided by the Committee in the Award document:
(i) All deferral of settlement, forfeiture conditions and other
restrictions applicable to Awards granted under the Plan shall lapse and
such Awards shall be fully payable as of the time of the Change in Control
without regard to deferral and vesting conditions, except to the extent of
any waiver by the Participant or other express election to defer beyond a
Change in Control and subject to applicable restrictions set forth in
Section 11(a);
(ii) Any Award carrying a right to exercise that was not previously
exercisable and vested shall become fully exercisable and vested as of the
time of the Change in Control and shall remain exercisable and vested for
the balance of the stated term of such Award without regard to any
termination of employment or service by the Participant other than a
termination for "cause" (as defined in any employment or severance
agreement between the Company or a subsidiary or affiliate and the
Participant then in effect or, if none, as defined by the Committee and in
effect at the time of the Change in Control), subject only to applicable
restrictions set forth in Section 11(a); and
(iii) The Committee may, in its discretion, determine to extend to
any Participant who holds an Option the right to elect, during the 60-day
period immediately following the Change in Control, in lieu of acquiring
the shares of Stock covered by such Option, to receive in cash the excess
of the Change in Control Price over the exercise price of such Option,
multiplied by the number of shares of Stock covered by such Option, and to
extend to any Participant who holds other types of Awards denominated in
shares the right to elect, during the 60-day period immediately following
the Change in Control, in lieu of receiving the shares of Stock covered by
such Award, to receive in cash the Change in Control Price multiplied by
the number of shares of Stock covered by such Award.
(b) Effect of "Change in Control" on Performance-Based Awards. In the
event of a "Change in Control," with respect to an outstanding Award subject to
achievement of performance goals and conditions, such performance goals and
conditions shall be
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deemed to be met or exceeded if and to the extent so provided by the Committee
in the Award document governing such Award or other agreement with the
Participant.
(c) Definition of "Change in Control." A "Change in Control" shall be
deemed to have occurred if, after the Effective Date, there shall have occurred
any of the following:
(i) Any "person," as such term is used in Section 13(d) and 14(d)
of the Exchange Act (other than the Company, any trustee or other fiduciary
holding securities under an employee benefit plan of the Company, or any
company owned, directly or indirectly, by the shareholders of the Company
in substantially the same proportions as their ownership of stock of the
Company), acquires voting securities of the Company and immediately
thereafter is a "40% Beneficial Owner." For purposes of this provision, a
"40% Beneficial Owner" shall mean a person who is the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of the Company representing 40% or more of the combined
voting power of the Company's then-outstanding voting securities; provided,
however, that the term "40% Beneficial Owner" shall not include any person
who was a beneficial owner of outstanding voting securities of the Company
at February 20, 1990, or any person or persons who was or becomes a
fiduciary of any such person or persons who is, or in the aggregate, are a
"40% Beneficial Owner" (an "Existing Shareholder"), including any group
that may be formed which is comprised solely of Existing Shareholders,
unless and until such time after February 20, 1990 as any such Existing
Shareholder shall have become the beneficial owner (other than by means of
a stock dividend, stock split, gift, inheritance or receipt or exercise of,
or accrual of any right to exercise, a stock option granted by the Company
or receipt or settlement of any other stock-related award granted by the
Company) by purchase of any additional voting securities of the Company;
and provided further, that the term "40% Beneficial Owner" shall not
include any person who shall become the beneficial owner of 40% or more of
the combined voting power of the Company's then-outstanding voting
securities solely as a result of an acquisition by the Company of its
voting securities, until such time thereafter as such person shall become
the beneficial owner (other than by means of a stock dividend or stock
split) of any additional voting securities and becomes a 40% Beneficial
Owner in accordance with this Section 9(c)(i);
(ii) Individuals who on September 1, 2000 constitute the Board, and
any new director (other than a director whose initial assumption of office
is in connection with an actual or threatened election consent, including
but not limited to a consent solicitation, relating to the election of
directors of the Company) whose election by the Board or nomination for
election by the Company's shareholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were
directors on September 1, 2000 or whose election or nomination for election
was previously so approved or recommended, cease for any reason to
constitute at least a majority thereof;
(iii) There is consummated a merger, consolidation, recapitalization,
or reorganization of the Company, or a reverse stock split of any class of
voting securities of the Company, if, immediately following consummation of
any of the foregoing, either (A) individuals who, immediately prior to such
consummation, constitute the Board do not constitute at least a majority of
the members of the board of directors of the Company or the surviving or
parent entity, as the case may be, or
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(B) the voting securities of the Company outstanding immediately prior to
such recommendation do not represent (either by remaining outstanding or by
being converted into voting securities of a surviving or parent entity) at
least 60% or more of the combined voting power of the outstanding voting
securities of the Company or such surviving or parent entity; or
(iv) The shareholders of the Company have approved a plan of
complete liquidation of the Company or there is consummated an agreement
for the sale or disposition by the Company of all or substantially all of
the Company's assets (or any transaction have a similar effect).
(d) Definition of "Change in Control Price." The "Change in Control Price"
means an amount in cash equal to the higher of (i) the amount of cash and fair
market value of property that is the highest price per share paid (including
extraordinary dividends) in any transaction triggering the Change in Control or
any liquidation of shares following a sale of substantially all assets of the
Company, or (ii) the highest Fair Market Value per share at any time during the
60-day period preceding and 60-day period following the Change in Control.
10. Additional Award Forfeiture Provisions.
(a) Forfeiture of Options and Other Awards and Gains Realized Upon Prior
Option Exercises or Award Settlements. Unless otherwise determined by the
Committee, each Award granted hereunder shall be subject to the following
additional forfeiture conditions, to which the Participant, by accepting an
Award hereunder, agrees. If any of the events specified in Section 10(b)(i),
(ii), or (iii) occurs (a "Forfeiture Event"), all of the following forfeitures
will result:
(i) The unexercised portion of the Option, whether or not vested,
and any other Award not then settled (except for an Award that has not been
settled solely due to an elective deferral by the Participant and otherwise
is not forfeitable in the event of any termination of service of the
Participant) will be immediately forfeited and canceled upon the occurrence
of the Forfeiture Event; and
(ii) The Participant will be obligated to repay to the Company, in
cash, within five business days after demand is made therefor by the
Company, the total amount of Award Gain (as defined herein) realized by the
Participant upon each exercise of an Option or settlement of an Award
(regardless of any elective deferral) that occurred on or after (A) the
date that is six months prior to the occurrence of the Forfeiture Event, if
the Forfeiture Event occurred while the Participant was employed by the
Company or a subsidiary or affiliate, or (B) the date that is six months
prior to the date the Participant's employment by the Company or a
subsidiary or affiliate terminated, if the Forfeiture Event occurred after
the Participant ceased to be so employed. For purposes of this Section, the
term "Award Gain" shall mean (i), in respect of a given Option exercise,
the product of (X) the Fair Market Value per share of Stock at the date of
such exercise (without regard to any subsequent change in the market price
of shares) minus the exercise price times (Y) the number of shares as to
which the Option was exercised at that date, and (ii), in respect of any
other settlement of an Award granted to the Participant, the Fair Market
Value of the cash
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or Stock paid or payable to Participant (regardless of any elective
deferral) less any cash or the Fair Market Value of any Stock or property
(other than an Award or award which would have itself then been forfeitable
hereunder and excluding any payment of tax withholding) paid by the
Participant to the Company as a condition of or in connection such
settlement.
(b) Events Triggering Forfeiture. The forfeitures specified in Section
10(a) will be triggered upon the occurrence of any one of the following
Forfeiture Events at any time during the Participant's employment by the Company
or a subsidiary or affiliate or during the one-year period following termination
of such employment:
(i) The Participant, acting alone or with others, directly or
indirectly, prior to a Change in Control, (A) engages, either as employee,
employer, consultant, advisor, or director, or as an owner, investor,
partner, or shareholder unless the Participant's interest is insubstantial,
in any business in an area or region in which the Company conducts business
at the date the event occurs, which is directly in competition with a
business then conducted by the Company or a subsidiary or affiliate; (B)
induces any customer or supplier of the Company or a subsidiary or
affiliate, or other company with which the Company or a subsidiary or
affiliate has a business relationship, to curtail, cancel, not renew, or
not continue his or her or its business with the Company or any subsidiary
or affiliate; or (C) induces, or attempts to influence, any employee of or
service provider to the Company or a subsidiary or affiliate to terminate
such employment or service. The Committee shall, in its discretion,
determine which lines of business the Company conducts on any particular
date and which third parties may reasonably be deemed to be in competition
with the Company. For purposes of this Section 10(b)(i), a Participant's
interest as a shareholder is insubstantial if it represents beneficial
ownership of less than five percent of the outstanding class of stock, and
a Participant's interest as an owner, investor, or partner is insubstantial
if it represents ownership, as determined by the Committee in its
discretion, of less than five percent of the outstanding equity of the
entity;
(ii) The Participant discloses, uses, sells, or otherwise transfers,
except in the course of employment with or other service to the Company or
any subsidiary or affiliate, any confidential or proprietary information of
the Company or any subsidiary or affiliate, including but not limited to
information regarding the Company's current and potential customers,
organization, employees, finances, and methods of operations and
investments, so long as such information has not otherwise been disclosed
to the public or is not otherwise in the public domain, except as required
by law or pursuant to legal process, or the Participant makes statements or
representations, or otherwise communicates, directly or indirectly, in
writing, orally, or otherwise, or takes any other action which may,
directly or indirectly, disparage or be damaging to the Company or any of
its subsidiaries or affiliates or their respective officers, directors,
employees, advisors, businesses or reputations, except as required by law
or pursuant to legal process; or
(iii) The Participant fails to cooperate with the Company or any
subsidiary or affiliate by making himself or herself available to testify
on behalf of the Company or such subsidiary or affiliate in any action,
suit, or proceeding, whether civil, criminal, administrative, or
investigative, or otherwise fails to assist the Company or any
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subsidiary or affiliate in any such action, suit, or proceeding by
providing information and meeting and consulting with members of management
of, other representatives of, or counsel to, the Company or such subsidiary
or affiliate, as reasonably requested.
(c) Agreement Does Not Prohibit Competition or Other Participant
Activities. Although the conditions set forth in this Section 10 shall be deemed
to be incorporated into an Award, a Participant is not thereby prohibited from
engaging in any activity, including but not limited to competition with the
Company and its subsidiaries and affiliates. Rather, the non-occurrence of the
Forfeiture Events set forth in Section 10(b) is a condition to the Participant's
right to realize and retain value from his or her compensatory Options and
Awards, and the consequence under the Plan if the Participant engages in an
activity giving rise to any such Forfeiture Event are the forfeitures specified
herein. The Company and the Participant shall not be precluded by this provision
or otherwise from entering into other agreements concerning the subject matter
of Section 10(a) and 10(b).
(d) Committee Discretion. The Committee may, in its discretion, waive in
whole or in part the Company's right to forfeiture under this Section, but no
such waiver shall be effective unless evidenced by a writing signed by a duly
authorized officer of the Company. In addition, the Committee may impose
additional conditions on Awards, by inclusion of appropriate provisions in the
document evidencing or governing any such Award.
11. General Provisions.
(a) Compliance with Legal and Other Requirements. The Company may, to the
extent deemed necessary or advisable by the Committee, postpone the issuance or
delivery of Stock or payment of other benefits under any Award until completion
of such registration or qualification of such Stock or other required action
under any federal or state law, rule or regulation, listing or other required
action with respect to any stock exchange or automated quotation system upon
which the Stock or other securities of the Company are listed or quoted, or
compliance with any other obligation of the Company, as the Committee may
consider appropriate, and may require any Participant to make such
representations, furnish such information and comply with or be subject to such
other conditions as it may consider appropriate in connection with the issuance
or delivery of Stock or payment of other benefits in compliance with applicable
laws, rules, and regulations, listing requirements, or other obligations. The
foregoing notwithstanding, in connection with a Change in Control, the Company
shall take or cause to be taken no action, and shall undertake or permit to
arise no legal or contractual obligation, that results or would result in any
postponement of the issuance or delivery of Stock or payment of benefits under
any Award or the imposition of any other conditions on such issuance, delivery
or payment, to the extent that such postponement or other condition would
represent a greater burden on a Participant than existed on the 90th day
preceding the Change in Control.
(b) Limits on Transferability; Beneficiaries. No Award or other right or
interest of a Participant under the Plan shall be pledged, hypothecated or
otherwise encumbered or subject to any lien, obligation or liability of such
Participant to any party (other than the Company or a subsidiary or affiliate
thereof), or assigned or transferred by such Participant, and such Awards or
rights that may be exercisable shall be exercised during
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the lifetime of the Participant only by the Participant or his or her guardian
or legal representative, except that (i) Awards and related rights shall be
transferred to a Participant's Beneficiary or Beneficiaries upon the death of
the Participant, and (ii) Awards and other rights (other than ISOs and SARs in
tandem therewith) may be transferred to one or more Beneficiaries during the
lifetime of the Participant, and rights thereunder may be exercised by such
transferees in accordance with the terms of such Award, but only if and to the
extent such transfers are then permitted by the Committee, subject to any terms
and conditions which the Committee may impose thereon (including limitations the
Committee may deem appropriate in order that offers and sales under the Plan
will meet applicable requirements of registration forms under the Securities Act
of 1933 specified by the Securities and Exchange Commission). A Beneficiary or
other person claiming any rights under the Plan from or through any Participant
shall be subject to all terms and conditions of the Plan and any Award document
applicable to such Participant, except as otherwise determined by the Committee,
and to any additional terms and conditions deemed necessary or appropriate by
the Committee.
(c) Adjustments. In the event that any large, special and non-recurring
dividend or other distribution (whether in the form of cash or property other
than Stock), recapitalization, forward or reverse split, Stock dividend,
reorganization, merger, consolidation, spin-off, combination, repurchase, share
exchange, liquidation, dissolution or other similar corporate transaction or
event affects the Stock such that an adjustment is determined by the Committee
to be appropriate under the Plan, then the Committee shall, in such manner as it
may deem equitable, adjust any or all of (i) the number and kind of shares of
Stock which may be delivered in connection with Awards granted thereafter, (ii)
the number and kind of shares of Stock by which annual per-person Award
limitations are measured under Section 5, (iii) the number and kind of shares of
Stock subject to or deliverable in respect of outstanding Awards and (iv) the
exercise price, grant price or purchase price relating to any Award or, if
deemed appropriate, the Committee may make provision for a payment of cash or
property to the holder of an outstanding Option (subject to Section 11(k)). In
addition, the Committee is authorized to make adjustments in the terms and
conditions of, and the criteria included in, Awards (including Performance
Awards and performance goals and any hypothetical funding pool relating thereto)
in recognition of unusual or nonrecurring events (including, without limitation,
events described in the preceding sentence, as well as acquisitions and
dispositions of businesses and assets) affecting the Company, any subsidiary or
affiliate or other business unit, or the financial statements of the Company or
any subsidiary or affiliate, or in response to changes in applicable laws,
regulations, accounting principles, tax rates and regulations or business
conditions or in view of the Committee's assessment of the business strategy of
the Company, any subsidiary or affiliate or business unit thereof, performance
of comparable organizations, economic and business conditions, personal
performance of a Participant, and any other circumstances deemed relevant;
provided that no such adjustment shall be authorized or made if and to the
extent that the existence of such authority (i) would cause Options, SARs, or
Performance Awards granted under Section 8 to Participants designated by the
Committee as Covered Employees and intended to qualify as "performance-based
compensation" under Code Section 162(m) and regulations thereunder to otherwise
fail to qualify as "performance-based compensation" under Code Section 162(m)
and regulations thereunder, or (ii) would cause the Committee to be deemed to
have authority to change the targets, within the meaning of Treasury Regulation
1.162-27(e)(4)(vi), under the performance goals relating to Options or SARs
- 20 -
<PAGE>
granted to Covered Employees and intended to qualify as "performance-based
compensation" under Code Section 162(m) and regulations thereunder.
(d) Tax Provisions.
(i) Withholding. The Company and any subsidiary or affiliate is
authorized to withhold from any Award granted, any payment relating to an
Award under the Plan, including from a distribution of Stock, or any
payroll or other payment to a Participant, amounts of withholding and other
taxes due or potentially payable in connection with any transaction
involving an Award, and to take such other action as the Committee may deem
advisable to enable the Company and Participants to satisfy obligations for
the payment of withholding taxes and other tax obligations relating to any
Award. This authority shall include authority to withhold or receive Stock
or other property and to make cash payments in respect thereof in
satisfaction of a Participant's withholding obligations, either on a
mandatory or elective basis in the discretion of the Committee. Other
provisions of the Plan notwithstanding, only the minimum amount of Stock
deliverable in connection with an Award necessary to satisfy statutory
withholding requirements will be withheld.
(ii) Required Consent to and Notification of Code Section 83(b)
Election. No election under Section 83(b) of the Code (to include in gross
income in the year of transfer the amounts specified in Code Section 83(b))
or under a similar provision of the laws of a jurisdiction outside the
United States may be made unless expressly permitted by the terms of the
Award document or by action of the Committee in writing prior to the making
of such election. In any case in which a Participant is permitted to make
such an election in connection with an Award, the Participant shall notify
the Company of such election within ten days of filing notice of the
election with the Internal Revenue Service or other governmental authority,
in addition to any filing and notification required pursuant to regulations
issued under Code Section 83(b) or other applicable provision.
(iii) Requirement of Notification Upon Disqualifying Disposition
Under Code Section 421(b). If any Participant shall make any disposition of
shares of Stock delivered pursuant to the exercise of an Incentive Stock
Option under the circumstances described in Code Section 421(b) (relating
to certain disqualifying dispositions), such Participant shall notify the
Company of such disposition within ten days thereof.
(e) Changes to the Plan. The Board may amend, suspend or terminate the
Plan or the Committee's authority to grant Awards under the Plan without the
consent of shareholders or Participants; provided, however, that any amendment
to the Plan shall be submitted to the Company's shareholders for approval not
later than the earliest annual meeting for which the record date is after the
date of such Board action if such shareholder approval is required by any
federal or state law or regulation or the rules of any stock exchange or
automated quotation system on which the Stock may then be listed or quoted and
the Board may otherwise, in its discretion, determine to submit other amendments
to
- 21 -
<PAGE>
the Plan to shareholders for approval; and provided further, that, without the
consent of an affected Participant, no such Board action may materially and
adversely affect the rights of such Participant under any outstanding Award.
Without the approval of shareholders, the Committee will not amend or replace
previously granted Options in a transaction that constitutes a "repricing," as
such term is used in Instruction 3 to Item 402(b)(2)(iv) of Regulation S-K, as
promulgated by the Securities and Exchange Commission. The Committee shall have
no authority to waive or modify any other Award term after the Award has been
granted to the extent that the waived or modified term was mandatory under the
Plan.
(f) Right of Setoff. The Company or any subsidiary or affiliate may, to
the extent permitted by applicable law, deduct from and set off against any
amounts the Company or a subsidiary or affiliate may owe to the Participant from
time to time, including amounts payable in connection with any Award, owed as
wages, fringe benefits, or other compensation owed to the Participant, such
amounts as may be owed by the Participant to the Company, including but not
limited to amounts owed under Section 10(a), although the Participant shall
remain liable for any part of the Participant's payment obligation not satisfied
through such deduction and setoff. By accepting any Award granted hereunder, the
Participant agrees to any deduction or setoff under this Section 11(f).
(g) Unfunded Status of Awards; Creation of Trusts. The Plan is intended to
constitute an "unfunded" plan for incentive and deferred compensation. With
respect to any payments not yet made to a Participant or obligation to deliver
Stock pursuant to an Award, nothing contained in the Plan or any Award shall
give any such Participant any rights that are greater than those of a general
creditor of the Company; provided that the Committee may authorize the creation
of trusts and deposit therein cash, Stock, other Awards or other property, or
make other arrangements to meet the Company's obligations under the Plan. Such
trusts or other arrangements shall be consistent with the "unfunded" status of
the Plan unless the Committee otherwise determines with the consent of each
affected Participant.
(h) Nonexclusivity of the Plan. Neither the adoption of the Plan by the
Board nor its submission to the shareholders of the Company for approval shall
be construed as creating any limitations on the power of the Board or a
committee thereof to adopt such other incentive arrangements, apart from the
Plan, as it may deem desirable, including incentive arrangements and awards
which do not qualify under Code Section 162(m), and such other arrangements may
be either applicable generally or only in specific cases.
(i) Payments in the Event of Forfeitures; Fractional Shares. Unless
otherwise determined by the Committee, in the event of a forfeiture of an Award
with respect to which a Participant paid cash consideration, the Participant
shall be repaid the amount of such cash consideration. No fractional shares of
Stock shall be issued or delivered pursuant to the Plan or any Award. The
Committee shall determine whether cash, other Awards or other property shall be
issued or paid in lieu of such fractional shares or whether such fractional
shares or any rights thereto shall be forfeited or otherwise eliminated.
(j) Compliance with Code Section 162(m). It is the intent of the Company
that Options and SARs granted to Covered Employees and other Awards designated
as Awards to Covered Employees subject to Section 7 shall constitute qualified
- 22 -
<PAGE>
"performance-based compensation" within the meaning of Code Section 162(m) and
regulations thereunder, unless otherwise determined by the Committee at the time
of allocation of an Award. Accordingly, the terms of Sections 7(b), (c), and
(d), including the definitions of Covered Employee and other terms used therein,
shall be interpreted in a manner consistent with Code Section 162(m) and
regulations thereunder. The foregoing notwithstanding, because the Committee
cannot determine with certainty whether a given Participant will be a Covered
Employee with respect to a fiscal year that has not yet been completed, the term
Covered Employee as used herein shall mean only a person designated by the
Committee as likely to be a Covered Employee with respect to a specified fiscal
year. If any provision of the Plan or any Award document relating to a
Performance Award that is designated as intended to comply with Code Section
162(m) does not comply or is inconsistent with the requirements of Code Section
162(m) or regulations thereunder, such provision shall be construed or deemed
amended to the extent necessary to conform to such requirements, and no
provision shall be deemed to confer upon the Committee or any other person
discretion to increase the amount of compensation otherwise payable in
connection with any such Award upon attainment of the applicable performance
objectives.
(k) Certain Limitations Relating to Accounting Treatment of Awards. Other
provisions of the Plan notwithstanding, the Committee's authority under the Plan
(including under Sections 8(c), 8(d), 11(c) and 11(d)) is limited to the extent
necessary to ensure that any Option or other Award of a type that the Committee
has intended to be subject to fixed accounting with a measurement date at the
date of grant or the date performance conditions are satisfied under APB 25
shall not become subject to "variable" accounting solely due to the existence of
such authority, unless the Committee specifically determines that the Award
shall remain outstanding despite such "variable" accounting. In addition, other
provisions of the Plan notwithstanding, (i) if any right under this Plan would
cause a transaction to be ineligible for pooling-of-interests accounting that
would, but for the right hereunder, be eligible for such accounting treatment,
such right shall be automatically adjusted so that pooling-of-interests
accounting shall be available, including by substituting Stock or cash having a
Fair Market Value equal to any cash or Stock otherwise payable in respect of any
right to cash which would cause the transaction to be ineligible for pooling-of-
interests accounting, and (ii) if any authority under Section 9(c) would cause a
transaction to be ineligible for pooling-of-interests accounting that would, but
for such authority, be eligible for such accounting treatment, such authority
shall be limited to the extent necessary so that such transaction would be
eligible for pooling-of-interests accounting.
(l) Governing Law. The validity, construction, and effect of the Plan, any
rules and regulations relating to the Plan and any Award document shall be
determined in accordance with the laws of the State of New York, without giving
effect to principles of conflicts of laws, and applicable provisions of federal
law.
(m) Awards to Participants Outside the United States. The Committee may
modify the terms of any Award under the Plan made to or held by a Participant
who is then resident or primarily employed outside of the United States in any
manner deemed by the Committee to be necessary or appropriate in order that such
Award shall conform to laws, regulations, and customs of the country in which
the Participant is then resident or primarily employed, or so that the value and
other benefits of the Award to the Participant, as affected by foreign tax laws
and other restrictions applicable as a result of the Participant's
- 23 -
<PAGE>
residence or employment abroad shall be comparable to the value of such an Award
to a Participant who is resident or primarily employed in the United States. An
Award may be modified under this Section 11(m) in a manner that is inconsistent
with the express terms of the Plan, so long as such modifications will not
contravene any applicable law or regulation or result in actual liability under
Section 16(b) for the Participant whose Award is modified.
(n) Limitation on Rights Conferred under Plan. Neither the Plan nor any
action taken hereunder shall be construed as (i) giving any Eligible Person or
Participant the right to continue as an Eligible Person or Participant or in the
employ or service of the Company or a subsidiary or affiliate, (ii) interfering
in any way with the right of the Company or a subsidiary or affiliate to
terminate any Eligible Person's or Participant's employment or service at any
time, (iii) giving an Eligible Person or Participant any claim to be granted any
Award under the Plan or to be treated uniformly with other Participants and
employees, or (iv) conferring on a Participant any of the rights of a
shareholder of the Company unless and until the Participant is duly issued or
transferred shares of Stock in accordance with the terms of an Award or an
Option is duly exercised. Except as expressly provided in the Plan and an Award
document, neither the Plan nor any Award document shall confer on any person
other than the Company and the Participant any rights or remedies thereunder.
(o) Severability; Entire Agreement. If any of the provisions of this Plan
or any Award document is finally held to be invalid, illegal or unenforceable
(whether in whole or in part), such provision shall be deemed modified to the
extent, but only to the extent, of such invalidity, illegality or
unenforceability, and the remaining provisions shall not be affected thereby;
provided, that, if any of such provisions is finally held to be invalid,
illegal, or unenforceable because it exceeds the maximum scope determined to be
acceptable to permit such provision to be enforceable, such provision shall be
deemed to be modified to the minimum extent necessary to modify such scope in
order to make such provision enforceable hereunder. The Plan and any Award
documents contain the entire agreement of the parties with respect to the
subject matter thereof and supersede all prior agreements, promises, covenants,
arrangements, communications, representations and warranties between them,
whether written or oral with respect to the subject matter thereof.
(p) Plan Effective Date and Termination. The Plan shall become effective
if, and at such time as, the shareholders of the Company have approved it by the
affirmative votes of the holders of a majority of the voting securities of the
Company present, or represented, and entitled to vote on the subject matter at a
duly held meeting of shareholders. Unless earlier terminated by action of the
Board of Directors, the Plan will remain in effect until such time as no Stock
remains available for delivery under the Plan and the Company has no further
rights or obligations under the Plan with respect to outstanding Awards under
the Plan.
- 24 -
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-99.10(K)
<SEQUENCE>6
<FILENAME>0006.txt
<DESCRIPTION>IFF VISION 2001 COMPENSATION PROGRAM
<TEXT>
<PAGE>
[PEARL MYERS & PARTNERS] EXHIBIT 10(k)
-------------
INTERNATIONAL FLAVORS & FRAGRANCES INC.
- -------------------------------------------------------------------------------
VISION2001 Compensation Program
- -------------------------------------------------------------------------------
Overview
- --------
As discussed at the October meeting, Committee and Board approval is being
sought at this meeting of IFF's new compensation program, which has been updated
and redesigned in support of management's strategy for the three to five-year
turnaround/transformation of the Company.
The purposes of the VISION2001 Compensation Program are to
. Attract, motivate and reward key executives for the achievement of
stringent goals required for future growth, improved financial efficiency,
higher profitability and increased cash flow,
- Align IFF pay opportunities with these annual and long term drivers
of shareholder value.
. Focus key employees to work together with common purpose as a unified IFF
management group committed to accomplish Company-wide as well as
team/individual goals, based on each employee's responsibility for
financial, strategic and operational results,
. Encourage retention of key employees and assist in the recruitment of
needed new talent,
. Increase stock ownership and facilitate wealth building,
. Offer competitive compensation opportunities based on the realization of
VISION2001, and
. Provide pay plans that are simple to communicate, understand and
administer.
The VISION2001 Compensation Program is comprised of six remuneration plans -
Salary Plan, Annual Incentive Plan/1/, Long Term Incentive Plan/1/, Stock
Option/1/, Perquisites Plan and Deferred Compensation Plan. The Program has been
geared to the current competitive marketplace with salary and perquisites
positioned at median and total remuneration at the 60th to 65th percentiles for
on-target results and over the 75th percentile for maximum achievement.
The VISION2001 Compensation Program will provide IFF employees joining us from
BBA with equivalent total remuneration opportunities through a modified mix of
pay elements and other IFF participants with updated incentive and total
remuneration opportunities based on real results.
- --------------------
/1/ Under the Company's 2000 Stock Award and Incentive Plan approved by
shareholders at the 2000 annual meeting.
<PAGE>
[PEARL MEYER & PARTNERS]
1. Salary Plan
-----------
A new salary matrix shown in the following Exhibit A has been developed
comprised of 12 Grades. Over 500 employees have been assigned to Grades
based on competitive marketplace pricing and internal value of their
positions to the new IFF.
Management to make salary adjustment effective January 1/st/ for those
whose positions/responsibilities have changed materially in the
restructuring and whose salaries fall below desired levels.
On an ongoing basis, salaries will be reviewed periodically. Automatic
annual merit increases will be discontinued. Raises will be determined by
ongoing individual in-position performance. Assessments will be based on
qualitative criteria such as personal and managerial effectiveness,
teamwork, and people development as well as individual factors. Major
distinctions between performance levels will be reflected in major
distinctions in salary increase rates.
Aside from "one time" adjustments for position/responsibility changes,
salary increases will generally be effective April 1/st/. An exempt
annualized salary budget of approximately 4% is planned for 2001.
- 2 -
<PAGE>
[PEARL MEYER & PARTNERS]
INTERNATIONAL FLAVORS & FRAGRANCES INC.
- --------------------------------------------------------------------------------
IFF Salary Grade Matrix
- --------------------------------------------------------------------------------
Salary Grade Range Estimated
Salary ------------------- Typical No. of
Grade Minimum Maximum Positions Participants
- ------ -------- -------- ----------------------------------- ------------
CEO $900,000 1
K $325,000 - $585,000 Executive Vice President 3
J $275,000 - $495,000 Corporate VP; Senior VP 5
I $200,000 - $360,000 VP, Global Category (Business Head) 15
H $160,000 - $300,000 Other Officer, VP (Regional Business 25
Head - Global Functions)
G $130,000 - $250,000 Director (Senior); 45
VP (Regional Function)
F $100,000 - $200,000 Research Fellow; Director 95
(Area - Affiliate Head)
E $ 75,000 - $150,000 Manager (Senior); 125
Parfumer; Flavorist
D $ 60,000 - $110,000 Manager; Project Leader; Sr. 200
Specialist; Principal Scientist;
Individual Contributor
C $ 50,000 - $ 90,000 Supervisor; Group Leader; --
Assistant Manager; Sr. Specialist
B $ 40,000 - $ 65,000 Analyst; Specialist; Scientist --
A $ 30,000 - $ 50,000 Representative; Coordinator; --
Administrator; Associate; Trainee
-----
514
- 3 -
<PAGE>
[PEARL MEYER & PARTNERS]
II. Annual Incentive Plan
---------------------
Over 500 employees in Salary Grades D/1/ and above will be eligible to
participate in the Annual Incentive Plan. Those in Grades A to C as well
as non-exempt hourly employees will participate in local incentive plans
with a corporate performance element.
Annual Incentive Plan performance goals based on the approved business
plan will be comprised of both Corporate and team/individual quantitative
measures established and clearly communicated at the beginning of each
year. The three Corporate measures which require Committee approval for
2001 are based on total IFF financial performance drivers, focused on
growing the business after several years of flat revenues, maximizing
profits from new and existing sources of revenue, and generating the cash
required to satisfy the Company's debt obligations:
. Revenue Growth
. Gross Profit (Revenues less Cost of Sales)
. Cash Flow from Operations (which embraces net profit from operations
and working capital improvement)
Individualized quantitative financial and strategic measures of team
and/or person performance are to be focused on each participant's specific
operational responsibilities for:
. Driving achievement of annual global Corporate revenue, profit and
cash flow goals for 2001,
. Teamwork in achieving turnaround/transformation within the newly
structured organization,
. Integrating BBA's operation's smoothly and successfully within IFF's
new structure,
. Improving customer satisfaction (i.e., on-time delivery, quality,
relationships, etc.), and
. Realizing other stated goals determined by management as areas
requiring significant action/improvement (i.e., product development,
technical application, forecast reliability, etc.).
The weighting of Corporate financial measures vs. team/individual measures
is to be based on each participant's level/responsibilities, ranging from
100%/0% at the highest Corporate officer level to 20%/80% at the lowest
participant levels. There will be less emphasis on overall Corporate
results moving down the organization, with more focus on the achievement
of specific individual goals which drive Company-wide results. Specific
Corporate measures, performance goals and weightings for each year are to
be determined by the Compensation Committee based on the recommendation of
the Chief Executive Officer with target performance linked to the approved
business plan.
Proposal for 2001
-----------------
Performance Measures Weighting
------------------------- -----------
Revenue growth 40%
Gross Profit 30%
Cash Flow from Operations 30%
----
100%
- --------------------
/1/ Minimum salary for Grade D is $60,000.
- 4 -
z
<PAGE>
[PEARL MEYER & PARTNERS]
Progress toward meeting annual performance goals is to be tracked and
communicated by management on a regular basis to plan participants. Plan
funding will equal the sum of target awards with quarterly adjustment based
on actual results achieved and projected full year results. Performance
will be measured in constant dollars as of January 1st.
Target incentive levels are to be determined by Grade based on position
responsibilities and the new IFF compensation structure shown in Exhibit B.
Annual incentive opportunities will range from 0% to 200% of target awards
as shown below.
Range of
Performance Opportunity
----------- -----------
Minimum 0%
Threshold 25%
Target(Business Plan) 100%
Maximum 200%
For motivational purposes, thresholds are set to be set at achievable level
at "start-up" of the turnaround with relatively challenging goals at target
and stretch goals required to earn maximum awards. In the event of
extraordinary 2001 results, individual/team and/or Corporate awards may be
adjusted by a "kicker" of up to 50% of target awards to motivate and reward
realization of turnaround goals.
Team and individual goals are to flow on a direct line for bottom-up
implementation of each major business plan driver. Results achieved are to
be evaluated and amounts earned determined and paid in February following
the end of the performance year.
Payment will generally be made in cash with elective deferral in choice of
investments including IFF stock under the new IFF Deferred Compensation
Plan. Deferrals in IFF stock for a minimum of two years will be credited
with a 25% premium subject to two-year cliff vesting based on continued
employment.
Preliminary corporate performance targets and associated costs will be
presented at the Committee meeting.
- 5 -
<PAGE>
[PEARL MEYER & PARTNERS] Exhibit B
INTERNATIONAL FLAVORS AND FRAGRANCES INC.
- -------------------------------------------------------------------------------
IFF Compensation Structure
Incentive Opportunity by Grade - Percent of Salary
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Salary Grade
Range ($000s) Annual Incentive (a) Annualized Long Term (b)
Salary ------------------ ---------------------------------- ----------------------------------
Grade Minimum Maximum Threshold Target Maximum Threshold Target Maximum
- ------ ------- ------- --------- ------ ------- --------- ------ -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
CEO $900 15.0% 60.0% 120.0% 20.0% 80.0% 160.0%
K $325 - $585 12.5% 50.0% 100.0% 12.5% 50.0% 100.0%
J $275 - $495 12.5% 50.0% 100.0% 12.5% 50.0% 100.0%
I $200 - $360 12.5% 50.0% 100.0% 12.5% 50.0% 100.0%
H $160 - $300 10.0% 40.0% 80.0% 10.0% 40.0% 80.0%
G $130 - $250 10.0% 40.0% 80.0% -- -- --
F $100 - $200 7.5% 30.0% 60.0% -- -- --
E $ 75 - $150 6.3% 25.0% 50.0% -- -- --
D $ 60 - $110 3.8% 15.0% 30.0% -- -- --
C $ 50 - $ 90 2.5% 10.0% (f) 20.0% -- -- --
B $ 40 - $ 65 1.5% 6.0% (f) 12.0% -- -- --
A $ 30 - $ 50 1.5% 6.0% (f) 12.0% -- -- --
Range of Opportunity ---------------------------------- --------------------------------
vs. Target 25% 100% 200% 25% 100% 200%
---------------------------------- --------------------------------
</TABLE>
<TABLE>
<CAPTION>
Salary Grade
Range ($000s) Stock Options (c) Total Remuneration
Salary ------------------ ---------------------------------- ----------------------------------
Grade Minimum Maximum Threshold Target Maximum Threshold Target Maximum
- ------ ------- ------- --------- ------ ------- --------- ------ -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
CEO $900 66.0% (d) 66.0% (d) 80.0% 201.0% 306.0% 460.0%
K $325 - $585 42.5% 50.0% 60.0% 167.5% 250.0% 360.0%
J $275 - $495 34.0% 40.0% 48.0% 159.0% 240.0% 348.0%
I $200 - $360 34.0% 40.0% 48.0% 159.0% 240.0% 348.0%
H $160 - $300 19.0% 22.5% 27.0% 139.0% 202.5% 287.0%
G $130 - $250 15.0% 17.5% 21.0% 125.0% 157.5% 201.0%
F $100 - $200 8.5% 10.0% 12.0% 116.0% 140.0% 172.0%
E $ 75 - $150 6.5% 7.5% (e) 9.0% 112.8% 132.5% 159.0%
D $ 60 - $110 3.5% 4.0% (e) 5.0% 107.3% 119.0% 135.0%
C $ 50 - $ 90 2.6% 3.0% (e) 3.5% 105.1% 113.0% 123.5%
B $ 40 - $ 65 -- -- 101.5% 106.0% 112.0%
A $ 30 - $ 50 -- -- 101.5% 106.0% 112.0%
Range of Opportunity ----------------------------------
vs. Target -15% 100% +20%
----------------------------------
</TABLE>
- --------------------
(a) "Kicker" of up to 50% of target for extraordinary performance.
(b) Standard annualized opportunity shown; 2001 to 2003 start-up biennial
cycle to equal 3x annualized long term opportunity and subsequent biennial
cycles to equal 2x annualized long term opportunity.
(c) Calculation based on IFF stock price of $17.9375 per share and IFF
Black-Scholes value of 25.0% of grant value; option ranges to be finalized
in May 2001.
(d) CEO to receive annual option grants with minimum Black-Scholes value of
$590,000 (66% of current salary); initial CEO option grant on 100,000
shares.
(e) Participation by individuals in Grades C, D and E at discretion of CEO
with an estimated level of participation equal to 50, 50 and 125
employees, respectively.
(f) Covered by local incentive plans with a corporate performance element.
<PAGE>
[PEARL MEYER & PARTNERS]
III. Long Term Incentive Plan
------------------------
Approximately 50 executives in Salary Grade H/1/ and above who impact the
long term success of the company will be eligible to participate initially.
Eligibility may be extended down in future years based on Plan
effectiveness and marketplace practice.
As shown in the following Exhibit C, performance cycles of three years are
to commence every two years. The initial Cycle I is to cover the three-
year performance period from January 2001 to December 2003 with opportunity
targeted at 3x the annualized award level to "start up" the Plan. Cycle II
is to cover the three-year performance period from January 2003 to December
2005 at the standard 2x the annualized award level. Subsequent three-year
performance cycles may continue on a biennial basis or shift to annual
cycles as the Company's turnaround strategy is realized and goals of the
business evolve.
Performance measures and goals based on global corporate quantitative
financial results achieved by the executive group as a team will be
established at the beginning of each cycle. Threshold goals are to be set
at realistic, attainable levels to create "Early success" by the executive
team with targets to be relatively challenging and maximum goals stretch.
The initial Cycle I is to be based on the following measures (subject to
Committee approval) which support IFF's three to five-year turnaround
strategy of growing earnings and improving financial efficiency through
positive programs such as inventory reduction:
. Earnings per Share
. Return on Net Tangible Assets
The two Cycle I measures will be weighted equally to maintain balanced
focus:
Performance
Measure Weightings
----------- ----------
EPS 50%
RONTA 50%
Performance measures, goals and weightings are to be reviewed and modified
as appropriate for future cycles.
At the beginning of each cycle, participants will be granted LTIP Units
with a par value of $100 at target performance. The number of LTIP Units
will be based on the participant's performance and Grade in the IFF
compensation structure as shown in Exhibits D1 and D2. Plan funding will
equal the sum of LTIP Units' value at target with quarterly adjustment
based on actual results achieved and projected full year results.
- -------------------------
/1/ Minimum salary for Grade H is $160,000.
- 7 -
<PAGE>
[PEARL MEYER & PARTNERS]
Incentive opportunities based on results will range from 0% to 200% of
target values as shown below:
Range of
Results Opportunity
--------- -----------
Minimum 0%
Threshold 25%
Target 100%
Maximum 200%
LTIP Units will be valued at the end of each cycle at $0 for minimum
performance and up to $200 for maximum achievement of stretch goals. If
performance is deemed by the Committee to be "superior" vs. goals at the
halfway point of the performance cycle, the Committee may provide early
partial payout of up to one-third of the three-year target award. Results
achieved and amounts earned are to be determined and paid in February
following the end of the cycle.
Payment will generally be made in cash with elective deferral in a choice
of investment vehicles including IFF stock to be permitted under the new
IFF Deferred Compensation Plan. Deferrals in IFF stock for a minimum of two
years will be credited with a 25% premium subject to cliff vesting based on
continued employment.
Preliminary corporate performance targets and associated costs will be
presented at the Committee meeting.
- 8 -
<PAGE>
[PEARL MEYER & PARTNERS]
Exhibit C
<TABLE>
<CAPTION>
INTERNATIONAL FLAVORS AND FRAGRANCES INC.
- --------------------------------------------------------------------------------
Long Term Incentive Plan Biennial Cycles
- --------------------------------------------------------------------------------
Performance
Period and Year
Annualized -----------------------------------------------------
Cycle Opportunity 2001 2002 2003 2004 2005 2006 2007 2008
- ---------- ----------- ---- ---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
------------------
I 1/01-12/03 / / 100% Cash and/or
"Start Up" 3x Target / / -------------- 125% Deferred Stock
/ /
------------------
/
/
/
Interim Payout
for "Superior" Results
------------------
II 1/03-12/05 / / 100% Cash and/or
Regular 2x Target / / ---------------- 125% Deferred Stock
/ /
------------------
/
------------------
/ /
/ /
/ /
------------------
</TABLE>
- 9 -
<PAGE>
[PEARL MEYER & PARTNERS]
Exhibit D-1
INTERNATIONAL FLAVORS & FRAGRANCES INC.
- --------------------------------------------------------------------------------
IFF Compensation Structure
Incentive Opportunity by Grade - Percent of Salary.
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Salary Grade
Range ($000s) Annual Incentive (a) Annualized Long Term (b)
Salary ------------------ ---------------------------------- ----------------------------------
Grade Minimum Maximum Threshold Target Maximum Threshold Target Maximum
- ------ ------- ------- --------- ------ ------- --------- ------ -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
CEO $900 15.0% 60.0% 120.0% 20.0% 80.0% 160.0%
K $325 - $585 12.5% 50.0% 100.0% 12.5% 50.0% 100.0%
J $275 - $495 12.5% 50.0% 100.0% 12.5% 50.0% 100.0%
I $200 - $360 12.5% 50.0% 100.0% 12.5% 50.0% 100.0%
H $160 - $300 10.0% 40.0% 80.0% 10.0% 40.0% 80.0%
G $130 - $250 10.0% 40.0% 80.0% -- -- --
F $100 - $200 7.5% 30.0% 60.0% -- -- --
E $ 75 - $150 6.3% 25.0% 50.0% -- -- --
D $ 60 - $110 3.8% 15.0% 30.0% -- -- --
C $ 50 - $ 90 2.5% 10.0% (f) 20.0% -- -- --
B $ 40 - $ 65 1.5% 6.0% (f) 12.0% -- -- --
A $ 30 - $ 50 1.5% 6.0% (f) 12.0% -- -- --
Range of Opportunity ---------------------------------- --------------------------------
vs. Target 25% 100% 200% 25% 100% 200%
---------------------------------- --------------------------------
</TABLE>
<TABLE>
<CAPTION>
Salary Grade
Range ($000s) Stock Options (c) Total Remuneration
Salary ------------------ ---------------------------------- ----------------------------------
Grade Minimum Maximum Threshold Target Maximum Threshold Target Maximum
- ------ ------- ------- --------- ------ ------- --------- ------ -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
CEO $900 66.0% (d) 66.0% (d) 80.0% 201.0% 306.0% 460.0%
K $325 - $585 42.5% 50.0% 60.0% 167.5% 250.0% 360.0%
J $275 - $495 34.0% 40.0% 48.0% 159.0% 240.0% 348.0%
I $200 - $360 34.0% 40.0% 48.0% 159.0% 240.0% 348.0%
H $160 - $300 19.0% 22.5% 27.0% 139.0% 202.5% 287.0%
G $130 - $250 15.0% 17.5% 21.0% 125.0% 157.5% 201.0%
F $100 - $200 8.5% 10.0% 12.0% 116.0% 140.0% 172.0%
E $ 75 - $150 6.5% 7.5% (e) 9.0% 112.8% 132.5% 159.0%
D $ 60 - $110 3.5% 4.0% (e) 5.0% 107.3% 119.0% 135.0%
C $ 50 - $ 90 2.6% 3.0% (e) 3.5% 105.1% 113.0% 123.5%
B $ 40 - $ 65 -- -- -- 101.5% 106.0% 112.0%
A $ 30 - $ 50 -- -- -- 101.5% 106.0% 112.0%
Range of Opportunity ----------------------------------
vs. Target -15% 100% +20%
----------------------------------
</TABLE>
- --------------------
(a) "Kicker" of up to 50% of target for extraordinary performance.
(b) Standard annualized opportunity shown; 2001 to 2003 start-up biennial
cycle to equal 3x annualized long term opportunity and subsequent biennial
cycles to equal 2x annualized long term opportunity.
(c) Calculation based on IFF stock price of $17.9375 per share and IFF
Black-Scholes value of 25.0% of grant value; option ranges to be finalized
in May 2001.
(d) CEO to receive annual option grants with minimum Black-Scholes value of
$590,000 (66% of current salary); initial CEO option grant on 100,000
shares.
(e) Participation by individuals in Grades C, D and E at discretion of CEO
with an estimated level of participation equal to 50, 50 and 125
employees, respectively.
(f) Covered by local incentive plans with a corporate performance element.
- 10 -
<PAGE>
[PEARL MEYER & PARTNERS] Exhibit D-2
INTERNATIONAL FLAVORS & FRAGRANCES INC.
- -------------------------------------------------------------------------------
IFF Compensation Structure
Incentive Opportunity by Grade - Amounts by Individual ($000s) (a)
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Salary Grade
Range ($000s) Annual Incentive (c) Annualized Long Term (d)
Salary ------------------ ----------------------------------- -----------------------------------
Grade Minimum Maximum Threshold Target Maximum Threshold Target Maximum
- ------ ------- ------- --------- ------ -------- --------- ------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
CEO $900 $135.0 $540.0 $1,080.0 $180.0 $720.0 $1,440.0
K $325 - $585 56.9 227.5 455.0 56.9 227.5 455.0
J $275 - $495 48.1 192.5 385.0 48.1 192.5 385.0
I $200 - $360 35.0 140.0 280.0 35.0 140.0 280.0
H $160 - $300 23.0 92.0 184.0 23.0 92.0 184.0
G $130 - $250 19.0 76.0 152.0 -- -- --
F $100 - $200 11.3 45.0 90.0 -- -- --
E $ 75 - $150 7.0 28.1 56.3 -- -- --
D $ 60 - $110 3.2 12.8 25.5 -- -- --
C $ 50 - $ 90 1.8 7.0 (g) 14.0 -- -- --
B $ 40 - $ 65 0.8 3.2 (g) 6.3 -- -- --
A $ 30 - $ 50 0.6 2.4 (g) 4.8 -- -- --
Range of Opportunity ----------------------------------- ----------------------------------
vs. Target 25% 100% 200% 25% 100% 200%
----------------------------------- ----------------------------------
</TABLE>
<TABLE>
<CAPTION>
Stock Options (b)
Salary Grade ---------------------------------------------------------------------------
Range ($000s) Amount No. of Shares
Salary ------------------ --------------------------------- ----------------------------------
Grade Minimum Maximum Minimum Target Maximum Minimum Target Maximum
- ------ ------- ------- ------- ------ ------- ------- ------ -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
CEO $900 $590.0 (e) $590.0 (e) $720.0 130,000 (e) 130,000 (e) 155,000
K $325 - $585 193.4 227.5 273.0 42,500 50,000 60,000
J $275 - $495 130.9 154.0 184.8 30,000 35,000 42,000
I $200 - $360 95.2 112.0 134.4 21,500 25,000 30,000
H $160 - $300 43.7 51.8 62.1 10,000 12,000 14,500
G $130 - $250 28.5 33.3 39.9 6,000 7,000 8,400
F $100 - $200 12.8 15.0 18.0 2,600 3,000 3,600
E $ 75 - $150 7.3 8.4 10.1 1,700 2,000 (f) 2,400
D $ 60 - $110 3.0 3.4 4.3 650 750 (f) 900
C $ 50 - $ 90 1.8 2.1 2.5 425 500 (f) 600
B $ 40 - $ 65 -- -- -- -- -- --
A $ 30 - $ 50 -- -- -- -- -- --
Range of Opportunity ---------------------------------- --------------------------------
vs. Target -15% 100% +20% -15% 100% +20%
---------------------------------- --------------------------------
</TABLE>
<TABLE>
<CAPTION>
Salary Grade
Range ($000s) Total Remuneration
Salary ------------------ -----------------------------------
Grade Minimum Maximum Threshold Target Maximum
- ------ ------- ------- --------- -------- --------
<S> <C> <C> <C> <C> <C>
CEO $900 $1,805.0 $2,750.0 $4,140.0
K $325 - $585 762.1 1,137.5 1,638.0
J $275 - $495 612.2 924.0 1,339.8
I $200 - $360 445.2 672.0 974.4
H $160 - $300 319.7 465.8 660.1
G $130 - $250 237.5 299.3 381.9
F $100 - $200 174.0 210.0 258.0
E $ 75 - $150 126.8 149.1 178.9
D $ 60 - $110 91.2 101.2 114.8
C $ 50 - $ 90 73.6 79.1 86.5
B $ 40 - $ 65 53.3 55.7 58.8
A $ 30 - $ 50 40.6 42.4 44.8
Range of Opportunity
vs. Target
</TABLE>
- --------------------
(a) Calculated based on the midpoint of each Salary Grade.
(b) Calculation based on IFF stock price of $17.9375 per share and IFF
Black-Scholes value of 25.0% of grant value; option ranges to be finalized
in May 2001.
(c) "Kicker" of up to 50% of target for extraordinary performance.
(d) Standard annualized opportunity shown; 2001 to 2003 start-up biennial
cycle to equal 3x annualized long term opportunity and subsequent biennial
cycles to equal 2x annualized long term opportunity.
(e) CEO to receive annual option grants with minimum Black-Scholes value of
$590,000 (66% of current salary); initial CEO option grant on 100,000
shares.
(f) Participation by individuals in Grades C, D and E at discretion of CEO
with an estimated level of participation equal to 50, 50 and 125
employees, respectively.
(g) Covered by local incentive plans with a corporate performance element.
- 11 -
<PAGE>
[PEARL MEYER & PARTNERS]
IV. Stock Options
-------------
As discussed in October, option grants to executive officers will continue
to be made under the 2000 Stock Award and Incentive Plan and to other
participants under the new 2000 Supplemental Stock Award Plan. Regular
annual participants will include about 190 employees in Grades F/1/ and
above with annual discretionary grants to about 225 selected employees in
Grades C/2/, D and E.
Based on current estimates, approximately 2 million shares or 2.11% of the
97 million shares currently outstanding would be granted annually at target
performance with a range of 1.76 million up to 2.45 million shares (Exhibit
E), which is within current market practice.
Recommendations for Committee consideration with respect to 2001 option
grant terms and timing are under development.
- ------------
/1/ Minimum salary for Grade F is $100,000.
/2/ Minimum salary for Grade C is $50,000.
- 12 -
<PAGE>
[PEARL MEYER & PARTNERS] Exhibit E
INTERNATIONAL FLAVORS & FRAGRANCES INC.
- -------------------------------------------------------------------------------
IFF Compensation Structure
Stock Option Opportunity by Grade
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Stock Options (a)(b)
------------------------------------------------------------------------
Black-Scholes Value
Salary Grade ------------------------------------------------------------------------
Range ($000s) Percent of Salary Amount ($000s)
Salary ------------------ --------------------------------- --------------------------------
Grade Minimum Maximum Minimum Target Maximum Minimum Target Maximum
- ------ ------- ------- ------- ------ ------- ------- ------ -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
CEO $900 66.0% (c) 66.0% (c) 80.0% $590.0 (c) $590.0 (c) $720.0
K $325 - $585 42.5% 50.0% 60.0% 193.4 227.5 273.0
J $275 - $495 34.0% 40.0% 48.0% 130.9 154.0 184.8
I $200 - $360 34.0% 40.0% 48.0% 95.2 112.0 134.4
H $160 - $300 19.0% 22.5% 27.0% 43.7 51.8 62.1
G $130 - $250 15.0% 17.5% 21.0% 28.5 33.3 39.9
F $100 - $200 8.5% 10.0% 12.0% 12.8 15.0 18.0
E $ 75 - $150 6.5% 7.5% (d) 9.0% 7.3 8.4 (d) 10.1
D $ 60 - $110 3.5% 4.0% (d) 5.0% 3.0 3.4 (d) 4.3
C $ 50 - $ 90 2.6% 3.0% (d) 3.5% 1.8 2.1 (d) 2.5
B $ 40 - $ 65 -- -- -- -- -- --
A $ 30 - $ 50 -- -- -- -- -- --
Totals
% of Outstanding (e)
Range of Opportunity ----------------------------------- ----------------------------------
vs. Target -15% 100% +20% -15% 100% +20%
----------------------------------- ----------------------------------
</TABLE>
<TABLE>
<CAPTION>
Stock Options (a)(b)
Salary Grade ----------------------------------------
Range ($000s) No. of Shares
Salary ------------------ ----------------------------------------
Grade Minimum Maximum Minimum Target Maximum
- ------ ------- ------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
CEO $900 130,000 (c) 130,000 (c) 155,000
K $325 - $585 42,500 50,000 60,000
J $275 - $495 30,000 35,000 42,000
I $200 - $360 21,500 25,000 30,000
H $160 - $300 10,000 12,000 14,500
G $130 - $250 6,000 7,000 8,400
F $100 - $200 2,600 3,000 3,600
E $ 75 - $150 1,700 2,000 (d) 2,400
D $ 60 - $110 650 750 (d) 900
C $ 50 - $ 90 425 500 (d) 600
B $ 40 - $ 65 -- -- --
A $ 30 - $ 50 -- -- --
--------- --------- ---------
Totals 1,763,250 2,042,500 2,452,500
% of Outstanding (e) 1.82% 2.11% 2.53%
Range of Opportunity ----------------------------------------
vs. Target -15% 100% +20%
----------------------------------------
</TABLE>
- --------------------
(a) Calculated based on the midpoint of each Salary Grade.
(b) Calculation based on IFF stock price of $17.9375 per share and IFF
Black-Scholes value of 25.0% of grant value; option ranges to be finalized
in May 2001.
(c) CEO to receive annual option grants with minimum Black-Scholes value of
$590,000 (66% of current salary); initial CEO option grant on 100,000
shares.
(d) Participation by individuals in Grades C, D and E at discretion of CEO
with an estimated level of participation equal to 50, 50 and 125
employees, respectively.
(e) Based on 97 million shares outstanding.
- 13 -
<PAGE>
[PEARL MEYER & PARTNERS]
The following Exhibit F1 and F2 summarize opportunities available under
the four pay plans of the VISION2001 program for IFF's eight executive
officers - structurally as a percent of salary and by dollar amount.
- 14 -
<PAGE>
[PEARL MEYER & PARTNERS] Exhibit F-1
INTERNATIONAL FLAVORS & FRAGRANCES INC.
- -------------------------------------------------------------------------------
IFF Compensation Structure
Total Remuneration of Eight Executive Officers - Percent of Salary
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Current Annual Incentive (a) Annualized Long Term (b)
Salary Base ---------------------------------- ----------------------------------
Name Grade Salary Threshold Target Maximum Threshold Target Maximum
- --------------- ------ ------- --------- ------ ------- --------- ------ -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Goldstein, R. A. CEO 100.0% 15.0% 60.0% 120.0% 20.0% 80.0% 160.0%
Lobbosco, C. A. K 100.0% 12.5% 50.0% 100.0% 12.5% 50.0% 100.0%
Boyden, J. K 100.0% 12.5% 50.0% 100.0% 12.5% 50.0% 100.0%
Howard, D. W. K 100.0% 12.5% 50.0% 100.0% 12.5% 50.0% 100.0%
Block, S. A. J 100.0% 12.5% 50.0% 100.0% 12.5% 50.0% 100.0%
Wetmore, D. J. J 100.0% 12.5% 50.0% 100.0% 12.5% 50.0% 100.0%
Brooks, C. D. J 100.0% 12.5% 50.0% 100.0% 12.5% 50.0% 100.0%
Kane, W. S. J 100.0% 12.5% 50.0% 100.0% 12.5% 50.0% 100.0%
Range of Opportunity ---------------------------------- --------------------------------
vs. Target 25% 100% 200% 25% 100% 200%
---------------------------------- --------------------------------
</TABLE>
<TABLE>
<CAPTION>
Current Stock Options (c) Total Remuneration
Salary Base ---------------------------------- ----------------------------------
Name Grade Salary Threshold Target Maximum Threshold Target Maximum
- --------------- ------ ------- --------- ------ ------- --------- ------ -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Goldstein, R. A. CEO 100.0% 66.0% (d) 66.0% (d) 80.0% 201.0% 306.0% 460.0%
Lobbosco, C. A. K 100.0% 38.1% 44.8% 53.8% 163.1% 244.8% 353.8%
Boyden, J. K 100.0% 40.1% 47.2% 56.6% 165.1% 247.2% 356.6%
Howard, D. W. K 100.0% 50.8% 59.8% 71.8% 175.8% 259.8% 371.8%
Block, S. A. J 100.0% 31.8% 37.4% 44.8% 156.8% 237.4% 344.8%
Wetmore, D. J. J 100.0% 34.7% 40.8% 48.9% 159.7% 240.8% 348.9%
Brooks, C. D. J 100.0% 38.1% 44.8% 53.8% 163.1% 244.8% 353.8%
Kane, W. S. J 100.0% 52.0% 61.2% 73.4% 177.0% 261.2% 373.4%
Range of Opportunity ----------------------------------
vs. Target -15% 100% +20%
----------------------------------
</TABLE>
- --------------------
(a) "Kicker" of up to 50% of target for extraordinary performance.
(b) Standard annualized opportunity shown; 2001 to 2003 start-up biennial
cycle to equal 3x annualized long term opportunity and subsequent biennial
cycles to equal 2x annualized long term opportunity.
(c) Calculation based on IFF stock price of $17.9375 per share and IFF
Black-Scholes value of 25.0% of grant value; option ranges to be finalized
in May 2001.
(d) CEO to receive annual option grants with minimum Black-Scholes value of
$590,000 (66% of current salary); initial CEO option grant on 100,000
shares.
- 15 -
<PAGE>
[PEARL MEYER & PARTNERS] Exhibit F-2
INTERNATIONAL FLAVORS & FRAGRANCES INC.
- -------------------------------------------------------------------------------
IFF Compensation Structure
Total Remuneration of Eight Executive Officers - Amounts (000s)
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Current Annual Incentive (b) Annualized Long Term (c)
Salary Base ---------------------------------- ----------------------------------
Name Grade Salary Threshold Target Maximum Threshold Target Maximum
- --------------- ------ ------- --------- ------ ------- --------- ------ -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Goldstein, R. A. CEO $900 $135 $540 $1,080 $180 $720 $1,440
Lobbosco, C. A. K 500 63 250 500 63 250 500
Boyden, J. K
Howard, D. W. K
Block, S. A. J 360 45 180 360 45 180 360
Wetmore, D. J. J 330 41 165 330 41 165 330
Brooks, C. D. J
Kane, W. S. J
--------- ------ ------- --------- ------ -------
Totals $455 $1,820 $3,640 $500 $2,000 $4,000
% of Outstanding (e)
Range of Opportunity ---------------------------------- --------------------------------
vs. Target 25% 100% 200% 25% 100% 200%
---------------------------------- --------------------------------
</TABLE>
<TABLE>
<CAPTION>
Stock Options (a)
----------------------------------------------------------------------------
Current Amount No. of Shares
Salary Base ---------------------------------- ----------------------------------
Name Grade Salary Min. Target Max. Min. Target Max.
- --------------- ------ ------- --------- ------ ------- --------- ------ -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Goldstein, R. A. CEO $900 $ 590 (d) $ 590 (d) $ 720 130.0 (d) 130.0 (d) 155.0
Lobbosco, C. A. K 500 191 224 269 42.5 50.0 60.0
Boyden, J. K
Howard, D. W. K
Block, S. A. J 360 114 135 161 25.5 30.0 36.0
Wetmore, D. J. J 330 114 135 161 25.5 30.0 36.0
Brooks, C. D. J
Kane, W. S. J
--------- ------ ------- --------- ------ -------
Totals $1,619 $1,801 $2,173 359.5 400.0 479.0
% of Outstanding (e) 0.37% 0.41% 0.49%
Range of Opportunity ---------------------------------- --------------------------------
vs. Target -15% 100% +20% -15% 100% +20%
---------------------------------- --------------------------------
</TABLE>
Current Total Remuneration
Salary Base ----------------------------------
Name Grade Salary Min. Target Max.
- --------------- ------ ------- --------- ------ -------
Goldstein, R. A. CEO $900 $1,805 $2,750 $4,140
Lobbosco, C. A. K 500 816 1,224 1,769
Boyden, J. K
Howard, D. W. K
Block, S. A. J 360 564 855 1,241
Wetmore, D. J. J 330 527 795 1,151
Brooks, C. D. J
Kane, W. S. J
--------- ------ -------
Totals $6,034 $9,081 $13,273
% of Outstanding (e)
- --------------------
(a) Calculation based on IFF stock price of $17.9375 per share and IFF
Black-Scholes value of 25.0% of grant value; option ranges to be finalized
in May 2001.
(b) "Kicker" of up to 50% of target for extraordinary performance.
(c) Standard annualized opportunity shown; 2001 to 2003 start-up biennial
cycle to equal 3x annualized long term opportunity and subsequent biennial
cycles to equal 2x annualized long term opportunity.
(d) CEO to receive annual option grants with minimum Black-Scholes value of
$590,000 (66% of current salary); initial CEO option grant on 100,000
shares.
(e) Based on 97 million shares outstanding.
- 16 -
<PAGE>
[PEARL MEYER & PARTNERS]
V. Perquisite Plan
---------------
The IFF Perquisite Plan is positioned at marketplace median. Two items
have been added to current practice - financial counseling & estate
planning and health club membership.
As shown in Exhibit G. perquisites provided vary based on position level
as reflected in assigned Salary Grade.
- 17 -
<PAGE>
[PEARL MEYER & PARTNERS] Exhibit G
INTERNATIONAL FLAVORS & FRAGRANCES INC.
- --------------------------------------------------------------------------------
VISION2001 Compensation Program - Other Elements
Perquisites Plan
- --------------------------------------------------------------------------------
Salary Annual Building
Grade Car (a) Vacation Severance Physical Parking
- ------ ------- -------- ---------------- -------- --------
CEO Yes Per Board Per Contract (b) Yes Yes
K Yes 4 Weeks Per Executive Yes Yes
Severance Policy
J Yes 4 Weeks Per Executive Yes Yes
Severance Policy
I Yes 4 Weeks Per Executive Yes Yes
Severance Policy
H Yes 4 Weeks 18 Months Yes Yes
G No 4 Weeks 12 Months Yes No
F No 3 Weeks Per Policy - No No
6 Months Min.
E No 3 Weeks Per Policy - No No
6 Months Min.
D No Per Policy Per Policy No No
C No Per Policy Per Policy No No
B No Per Policy Per Policy No No
A No Per Policy Per Policy No No
Financial
Salary Air Transport Counseling & Health
Grade Accommodations Estate Planning Club
- ------ ------------------- --------------- ---------------
CEO First or Business Individual Yes (100%)
K First or Business Individual Yes (100%)
J First or Business Individual Yes (100%)
I First or Business Individual Yes (100%)
H First or Business Individual Yes (100%)
G Coach or Business Small Group Partial Subsidy
for 5 hours or more
F Coach or Business Small Group Partial Subsidy
for 5 hours or more
E Coach or Business Seminar Partial Subsidy
for 5 hours or more
D Coach or Business Seminar Partial Subsidy
for 5 hours or more
C -- Seminar Partial Subsidy
B -- Seminar Partial Subsidy
A -- Seminar Partial Subsidy
- ------------------
(a) Nature of program is currently under review.
(b) Covered under Executive Separation Policy except as provided in CEO letter
agreement.
- 18 -
<PAGE>
[PEARL MEYER & PARTNERS]
VI. Deferred Compensation Plan
--------------------------
Approximately 300 U.S. based management employees in Salary Grades E and
above will be eligible to participate in the Plan whose purposes are to:
. Increase key employee stock ownership by encouraging deferral and
investment of IFF earnings (including option profits) in IFF shares.
. Facilitate wealth building by permitting key employees to invest
their IFF earnings on a tax-deferred basis.
. Encourage executive retention by automatic payout and taxation of
deferred amounts upon certain terminations, and
. Offer a flexible and competitive program.
Earnings eligible for deferral include salary in excess of the Social
Security wage base plus Medicare tax/1/; annual and long term incentive
awards; stock and stock unit awards; and profit shares resulting from
stock-for-stock option exercise.
Investment alternatives to be made available include, among others to be
determined, IFF shares, selected equity and fixed income funds, and
interest at specified rates. Deferral investment choices may be switched,
except no switching out of IFF stock will be permitted to avoid Section 16
issues for insiders and accounting charges to the Company. Deferrals in
IFF stock must be paid out in stock; all other deferrals may be paid out in
cash, or at the Company's election, in the participant's elected
investment.
Deferral elections are to be filed on a timely basis as follows to avoid
"constructive receipt" issues:
<TABLE>
<CAPTION>
<S> <C>
. Salary . Prior to commencement of fiscal
quarter in which earned
. Annual and long term incentive awards . At least six months prior to end of
in cash or stock performance period
. Mandatorily deferred incentive awards . One year prior to scheduled payment
date
. Option profit shares . At least six months prior to exercise
. Stock units . At least six months prior to scheduled
payment date
. "Second-look" elections to extend . At least one year prior to payout or six
deferral months prior to termination triggered
payments
</TABLE>
- ----------------
/1/ For 2001 wage base is $80,400 and Medicare withholding amounts to 1.45% of
wages.
- 19 -
<PAGE>
[PEARL MEYER & PARTNERS]
Participants will have the flexibility to elect to receive their deferred
amounts during employment or after termination due to retirement or
disability, upon fixed date(s) or event(s), and in lump sum or in up to 10
installments. For retention purposes, a voluntary quit will trigger
automatic payment and taxation. Deferrals will also be automatically paid
out within one year after death and upon termination by the Company with
Company right of offset in the event of a "for cause" termination.
Automatically accelerated payout will occur within five business days of a
Change in Control unless it would hinder a pooling transaction, or the
participant waives acceleration.
Early withdrawals will be permitted in the event of defined hardship with
other withdrawals permitted subject to a 10% penalty. On the other hand,
the Company may delay payment to avoid loss of tax deduction under IRC
Section 162(m) or other Code provisions.
The Plan may be implemented upon approval of the Committee and Board, with
administration delegated to Company officers. Plan funding is under study.
Based on recently expressed views of the SEC staff, the Plan will be
registered on a Form S-8.
- 20 -
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-99.10(L)
<SEQUENCE>7
<FILENAME>0007.txt
<DESCRIPTION>EXECUTIVE SEPARATION POLICY
<TEXT>
<PAGE>
Exhibit 10(l)
INTERNATIONAL FLAVORS & FRAGRANCES INC.
- --------------------------------------------------------------------------------
Executive Separation Policy
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
1. Purpose......................................................................................................... 1
2. Definitions..................................................................................................... 1
3. Eligibility..................................................................................................... 5
4. Severance Payments and Benefits................................................................................. 5
5. Acceleration of Equity Awards Upon a Change in Control; Certain
Provisions Applicable to Equity Awards........................................................................ 5
6. Excise Tax Gross-Up............................................................................................. 6
7. Employee Obligations and Conditions to Receipt of Payments and Benefits......................................... 8
8. Other Provisions Applicable to Severance Payments and Benefits.................................................. 11
9. Other Plans and Policies; Non-Duplication of Payments or Benefits............................................... 12
10. Miscellaneous................................................................................................... 13
</TABLE>
<PAGE>
INTERNATIONAL FLAVORS & FRAGRANCES INC.
Executive Separation Policy
1. Purpose. The purpose of this International Flavors & Fragrances Inc.
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Executive Separation Policy (the "Policy") is to provide certain severance
payments and benefits to designated officers and other key executives and
employees of the Company and its subsidiaries (each, an "Employee") in the event
of termination of employment (i) prior to or more than three years after a
Change in Control or (ii) within three years after a Change in Control. This
Policy shall not affect the right of the Company or a subsidiary to terminate an
Employee's employment with or without Cause.
2. Definitions. The following definitions are applicable for purposes of
-----------
this Policy (including in any Annex hereto), in addition to terms defined in
Section 1 above:
(a) "Annual Compensation" means the sum of salary and annual
incentive compensation, calculated as follows:
(i) Salary shall be calculated as the Employee's annual salary
with the Company and its subsidiaries at the highest rate in effect at
any time during the five years preceding termination of employment;
and
(ii) Annual incentive shall be calculated as the greater of
Employee's average annual incentive award paid for performance in the
three years preceding the year of termination under the AIP or the
Employee's target annual incentive for the year of termination.
(b) "AIP" means any plan or arrangement of the Company providing
cash-denominated bonuses for annual performance.
(c) "Beneficiary" means any family member or members, including by
marriage or adoption, any trust in which the Employee or any family member
or members have more than 50% of the beneficial interest, and any other
entity in which the Employee or any family member or members own more than
50% of the voting interests, in each case designated by the Employee in his
most recent written Beneficiary designation filed with the Committee as
entitled to receive payments or benefits in connection with this Policy or,
if there is no surviving designated Beneficiary, then the person, persons,
trust or trusts entitled by will or the laws of descent and distribution to
receive payments or benefits in connection with this Policy on behalf or in
lieu of such non-surviving designated Beneficiary.
(d) "Cause" means (i) the willful and continued failure by the
Employee to perform substantially his duties with the Company (other than
any such failure resulting from the Employee's incapacity due to physical
or mental illness) after a written demand for substantial performance is
delivered to the Employee by the Chairman of the Board of Directors or the
President of the Company which specifically identifies the manner in which
the Employee has not substantially performed his duties, (ii) the willful
engagement
<PAGE>
by the Employee in conduct which is not authorized by the Board of
Directors of the Company or within the normal course of the Employee's
business decisions and is known by the Employee to be materially
detrimental to the best interests of the Company or any of its
subsidiaries, or (iii) the willful engagement by the Employee in illegal
conduct or any act of serious dishonesty which adversely affects, or, in
the reasonable estimation of the Board of Directors of the Company, could
in the future adversely affect, the value, reliability or performance of
the Employee to the Company in a material manner. Any act, or failure to
act, based upon authority given pursuant to a resolution duly adopted by
the Board of Directors of the Company or based upon the advice of counsel
for the Company shall be conclusively presumed to be done, or omitted to be
done, by the Employee in good faith and in the best interests of the
Company. Notwithstanding the foregoing, an Employee shall not be deemed to
have been terminated for Cause unless and until there shall have been
delivered to the Employee a copy of the resolution duly adopted by the
affirmative vote of not less than three-quarters of the entire membership
of the Board of Directors after reasonable notice to the Employee and an
opportunity for him, together with his counsel, to be heard before the
Board of Directors, finding that, in the good faith opinion of the Board of
Directors, the Employee was guilty of the conduct set forth above in (i),
(ii) or (iii) of this Section 2(c) and specifying the particulars thereof
in detail.
(e) A "Change in Control" shall be deemed to have occurred if, after
the Effective Date and while the affected Employee is employed by the
Company or a subsidiary, there shall have occurred any of the following:
(i) Any "person," as such term is used in Section 13(d) and
14(d) of the Exchange Act (other than the Company, any trustee or
other fiduciary holding securities under an employee benefit plan of
the Company, or any company owned, directly or indirectly, by the
shareholders of the Company in substantially the same proportions as
their ownership of stock of the Company), acquires voting securities
of the Company and immediately thereafter is a "40% Beneficial Owner."
For purposes of this provision, a "40% Beneficial Owner" shall mean a
person who is the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the
Company representing 40% or more of the combined voting power of the
Company's then-outstanding voting securities; provided, however, that
the term "40% Beneficial Owner" shall not include any person who was a
beneficial owner of outstanding voting securities of the Company at
February 20, 1990, or any person or persons who was or becomes a
fiduciary of any such person or persons who is, or in the aggregate,
are a "40% Beneficial Owner" (an "Existing Shareholder"), including
any group that may be formed which is comprised solely of Existing
Shareholders, unless and until such time after February 20, 1990 as
any such Existing Shareholder shall have become the beneficial owner
(other than by means of a stock dividend, stock split, gift,
inheritance or receipt or exercise of, or accrual of any right to
exercise, a stock option granted by the Company or receipt or
settlement of any other stock-related award granted by the Company) by
purchase of any additional voting securities of the Company; and
provided further, that the term "40% Beneficial Owner" shall not
include any person who shall become the beneficial owner of 40% or
more of the combined voting power of the Company's then-outstanding
voting securities solely as a result of an acquisition by the Company
of its voting securities, until such time thereafter as
2
<PAGE>
such person shall become the beneficial owner (other than by means of
a stock dividend or stock split) of any additional voting securities
and becomes a 40% Beneficial Owner in accordance with this Section;
(ii) Individuals who on September 1, 2000 constitute the Board,
and any new director (other than a director whose initial assumption
of office is in connection with an actual or threatened election
consent, including but not limited to a consent solicitation, relating
to the election of directors of the Company) whose election by the
Board or nomination for election by the Company's shareholders was
approved by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors on September 1, 2000 or
whose election or nomination for election was previously so approved
or recommended, cease for any reason to constitute at least a majority
thereof;
(iii) There is consummated a merger, consolidation,
recapitalization, or reorganization of the Company, or a reverse stock
split of any class of voting securities of the Company, if,
immediately following consummation of any of the foregoing, either (A)
individuals who, immediately prior to such consummation, constitute
the Board do not constitute at least a majority of the members of the
board of directors of the Company or the surviving or parent entity,
as the case may be, or (B) the voting securities of the Company
outstanding immediately prior to such recommendation do not represent
(either by remaining outstanding or by being converted into voting
securities of a surviving or parent entity) at least 60% or more of
the combined voting power of the outstanding voting securities of the
Company or such surviving or parent entity; or
(iv) the shareholders of the Company have approved a plan of
complete liquidation of the Company or there is consummated an
agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets (or any transaction have a
similar effect).
(f) "Committee" means the Stock Option and Compensation Committee of
the Company's Board of Directors, or such other committee as the Board may
designate to perform administrative functions under the Policy.
(g) "Company" means International Flavors & Fragrances Inc., a New
York corporation, or any successor corporation.
(h) "Designated Awards" means (i) options granted under the Company's
Employee Stock Option Plan of 1988, Employee Stock Option Plan of 1992 and
1997 Employee Stock Option Plan, (ii) any other options granted under a
Plan, whether currently existing or hereafter adopted by the Company, that,
by its terms, does not permit such options to become vested and exercisable
upon occurrence of a Change in Control and to remain outstanding for the
periods provided in Section 5(a), and (iii) restricted stock and other
equity-based awards granted under a Plan or arrangement that, by its terms,
does not permit such awards to become vested and non-forfeitable upon
occurrence of a Change in Control as provided in Section 5(a) in each case
if such options or other awards remain outstanding and held by the Employee
at the date of his termination of employment.
3
<PAGE>
(i) "Disability" means a disability entitling the Employee to long-
term disability benefits under the Company's long-term disability policy as
in effect at the date of Employee's termination of employment.
(j) "Effective Date" means the date the Policy became effective, as
set forth in Section 10(i) hereof.
(k) "Excess Benefit Plan" means the Company's Supplemental Retirement
Plan and any supplemental pensions provided to the Employee under any
resolutions adopted by the Board of Directors of the Company or any
subsidiary, and as the same may be modified, replaced or added to by the
Company and its subsidiaries from time to time.
(l) "Good Reason" means the occurrence of any of the following
events, unless the Employee has consented in writing thereto:
(i) a reduction by the Company and its subsidiaries in the
Employee's base salary as in effect immediately prior to the Change in
Control;
(ii) the failure by the Company or a subsidiary to continue in
effect any Plan (as hereinafter defined) in which the Employee was
participating at the time of the Change in Control, unless such Plan
(x) is replaced by a successor Plan providing to the Employee
substantially similar compensation and benefits (which replacement
Plan shall continue to be subject to this provision) or (y) terminates
as a result of the normal expiration of such Plan in accordance with
its terms, as in effect immediately prior to the Change in Control; or
the taking of any other action, or the failure to act, by the Company
or a subsidiary which would materially adversely affect the Employee's
continued participation in any of such Plans as compared to the terms
of such participation on the date of the Change in Control, including
by materially reducing the Employee's benefits in the future under any
such Plans;
(iii) effecting a change in the position of the Employee which
does not represent a position commensurate in level, authority and
responsibilities with or a promotion from Employee's position with the
Company or any of its subsidiaries immediately prior to the date of
the Change in Control, or assigning to the Employee responsibilities
which are materially inconsistent with such prior position; or
(iv) the Company's or a subsidiary's requiring the Employee to
be based anywhere more than 45 miles from the location of Employee's
office immediately prior to the Change in Control, except for required
travel on the business of the Company or subsidiaries to an extent
substantially consistent with the business travel obligations which
the Employee undertook on behalf of the Company or subsidiaries prior
to the Change in Control;
in each case after notice in writing from the Employee to the Company and a
period of 30 days after such notice during which the Company and its
subsidiaries fail to correct such
4
<PAGE>
conduct.
(m) "LTIP" means a long-term performance incentive plan of the
Company.
(n) "Plan" means any compensation plan of the Company or a subsidiary
such as an incentive, stock option or restricted stock plan or any employee
benefit plan of the Company or a subsidiary such as a pension, profit
sharing, medical, dental or life insurance plan.
(o) "Prior Executive Severance Agreement" means an Executive
Severance Agreement between the Employee and the Company in effect
immediately prior to the Effective Date of this Policy.
(p) "Retirement" means retirement after attaining age 62.
(q) "Retirement Plan" means the Company's tax-qualified pension plan
in which the Employee participates, as the same may be modified, replaced
or added to by the Company or a subsidiary from time to time.
3. Eligibility. Each officer of the Company or other key executive or
-----------
employee of the Company or its subsidiaries who has been designated in writing
by the Committee shall be eligible for the severance payments and benefits and
other provisions of this Policy if his termination of employment qualifies
hereunder. Eligible persons shall include persons employed outside the United
States, if designated by the Committee and subject to Section 10(h) of this
Policy. As of the date of adoption of this Policy, each executive officer of the
Company listed on Annex I is designated as a Tier 1 participant hereunder.
4. Severance Payments and Benefits. For each Employee or class of
-------------------------------
Employees eligible to participate under this Policy, the Committee shall specify
the terms and conditions under which severance payments and benefits will be
paid and other terms and conditions of participation. For Employees designated
as Tier 1 level participants, these terms and conditions shall be as set forth
in Annex I hereto. If other participation Tiers are designated by the Committee,
the terms and conditions of such participation shall be set forth in additional
Annexes to the Plan. The foregoing and the provisions of any such Annex
notwithstanding, the Committee may vary the terms or provide enhanced benefits
in a document provided to a participant otherwise designated as a participant in
a specified Tier, except that the Committee shall not vary such terms and
conditions in a way adverse to a previously designated participant without the
written consent of such participant.
5. Acceleration of Equity Awards Upon a Change in Control; Certain
---------------------------------------------------------------
Provisions Applicable to Equity Awards.
- --------------------------------------
(a) Acceleration Upon Change in Control. In the event of a Change in
Control, the following provisions will apply to any stock options,
restricted stock and other awards based on stock then held by the Employee,
other than Designated Awards and limited stock appreciation rights relating
thereto:
(i) Any such option or other award carrying a right to exercise
that was not previously vested and exercisable shall become fully
vested and
5
<PAGE>
exercisable as of the time of the Change in Control.
(ii) All forfeiture conditions, deferral of settlement
conditions, and other restrictions applicable to such restricted stock
and other equity awards shall lapse and such awards shall be fully
payable or settleable as of the time of the Change in Control without
regard to deferral and vesting conditions, except to the extent of any
waiver by the Employee or other express Employee election to defer
beyond a Change in Control.
(iii) With respect to such an outstanding equity award subject to
achievement of performance goals and conditions, such performance
goals and conditions shall be deemed to be fully met as of the date of
such Change in Control, unless otherwise expressly provided by the
Committee in the award document governing such award or other
agreement entered into with the Employee after the Effective Date.
Notwithstanding the foregoing, Section 7 shall continue to apply to any
such award in accordance with its terms.
(b) Effect of Policy Terms on Outstanding Options and Awards. If any
option, restricted stock or stock unit award outstanding at the effective
date of this Policy cannot, under the terms of the plan governing such
award, provide for vesting or post-termination exercise on the terms set
forth in Section 4, and any Annex hereto implementing Section 4, or this
Section 5, or if the modification to the vesting and post-termination
exercise and other terms of such option or award under Section 4, and any
such Annex hereto, or this Section 5 would trigger an accounting expense to
be measured and recognized by the Company prior to a Change in Control,
such award shall be modified by Section 4, and any such Annex, and this
Section 5 only to the extent that the modification is both permitted under
the terms of the plan governing such award and does not trigger such
accounting expense.
(c) More Favorable Terms Apply. If and to the extent that the terms
of an option, restricted stock award, or other award based on stock are
more favorable to the Employee, in the event of a Change in Control, than
those terms provided under this Section 5, those terms shall apply, and
this Section 5 shall not operate in any way to restrict or cut back on the
rights of the Employee with respect to such award.
6. Excise Tax Gross-Up. If an Employee who has been designated as
-------------------
eligible for benefits under this Section 6, as set forth in the Annex hereto
designating the terms of such Employee's participation, becomes entitled to one
or more payments in connection with a Change in Control or termination of
employment during the three years following a Change in Control, other than a
termination by the Company for Cause, (with a "payment" including, without
limitation, the vesting of an option or other non-cash benefit or property,
including under Section 5 of this Policy) pursuant to any plan, agreement or
arrangement of the Company (together, "Severance Payments") which are or would
be subject to the tax imposed by Section 4999 of the Internal Revenue Code of
1986, as amended (or any similar tax that may be imposed) (the "Excise Taxes"),
the Company shall pay to the Employee an additional amount ("Gross-Up Payment")
such that, after the payment by the Employee of all taxes (including without
limitation all income and employment tax and Excise Tax and treating as a tax
the lost tax benefit resulting
6
<PAGE>
from the disallowance of any deduction of the Employee by virtue of the
inclusion of the Gross-Up Payment in the Employee's adjusted gross income), and
interest and penalties with respect to such taxes, imposed upon the Gross-Up
Payment, the Employee retains an amount of the Gross-Up Payment equal to the
Excise Taxes imposed upon the Severance Payments.
For purposes of determining whether any of the Severance Payments will be
subject to the Excise Tax and the amount of such Excise Tax:
(i) The Severance Payments shall be treated as "parachute payments"
within the meaning of Section 280G(b)(2) of the Code, and all "excess
parachute payments" within the meaning of Section 280G(b)(1) of the Code
shall be treated as subject to the Excise Tax, unless, and except to the
extent that, in the written opinion of independent compensation
consultants, counsel or auditors of nationally recognized standing
("Independent Advisors") selected by the Company and reasonably acceptable
to the Employee, the Severance Payments (in whole or in part) do not
constitute parachute payments, or such excess parachute payments (in whole
or in part) represent reasonable compensation for services actually
rendered within the meaning of Section 280G(b)(4) of the Code in excess of
the base amount within the meaning of Section 280G(b)(3) of the Code or are
otherwise not subject to the Excise Tax.
(ii) The amount of the Severance Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of (A) the total
amount of the Severance Payments or (B) the total amount of excess
parachute payments within the meaning of Section 280G(b)(1) of the Code
(after applying clause (i) above).
(iii) The value of any non-cash benefits or any deferred payment or
benefit shall be determined by the Independent Advisors in accordance with
the principles of Sections 280G(d)(3) and (4) of the Code.
For purposes of determining the amount of the Gross-Up Payment, the
Employee shall be deemed (A) to pay federal income taxes at the highest marginal
rate of federal income taxation for the calendar year in which the Gross-Up
Payment is to be made; (B) to pay any applicable state and local income taxes at
the highest marginal rate of taxation for the calendar year in which the Gross-
Up Payment is to be made, net of the maximum reduction in federal income taxes
which could be obtained from deduction of such state and local taxes if paid in
such year (determined without regard to limitations on deductions based upon the
amount of the Employee's adjusted gross income); and (C) to have otherwise
allowable deductions for federal, state, and local income tax purposes at least
equal to those disallowed because of the inclusion of the Gross-Up Payment in
the Employee's adjusted gross income. In the event that the Excise Tax is
subsequently determined to be less than the amount taken into account hereunder
at the time the Gross-Up Payment is made, the Employee shall repay to the
Company at the time that the amount of such reduction in Excise Tax is finally
determined (but, if previously paid to the taxing authorities, not prior to the
time the amount of such reduction is refunded to the Employee or otherwise
realized as a benefit by the Employee) the portion of the Gross-Up Payment that
would not have been paid if such Excise Tax had been applied in initially
calculating the Gross-Up Payment, plus interest on the amount of such repayment
at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the
Excise Tax is determined to exceed the amount taken into account hereunder at
the time the Gross-Up Payment is made (including by reason of any payment the
existence or amount of which cannot be determined at the time of the Gross-
7
<PAGE>
Up Payment), the Company shall make an additional Gross-Up Payment in respect of
such excess (plus any interest and penalties payable with respect to such
excess) at the time that the amount of such excess is finally determined.
The Gross-Up Payment provided for above shall be paid on the 30th day (or
such earlier date as the Excise Tax becomes due and payable to the taxing
authorities) after it has been determined that the Severance Payments (or any
portion thereof) are subject to the Excise Tax; provided, however, that if the
amount of such Gross-Up Payment or portion thereof cannot be finally determined
on or before such day, the Company shall pay to the Employee on such day an
estimate, as determined by the Independent Advisors, of the minimum amount of
such payments and shall pay the remainder of such payments (together with
interest at the rate provided in Section 1274(b)(2)(B) of the Code), as soon as
the amount thereof can be determined. In the event that the amount of the
estimated payments exceeds the amount subsequently determined to have been due,
such excess shall constitute a loan by the Company to the Employee, payable on
the fifth day after demand by the Company (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-Up
Payment is made, the amount of each Gross-Up Payment shall be computed so as not
to duplicate any prior Gross-Up Payment.
The Company shall have the right to control all proceedings with the
Internal Revenue Service that may arise in connection with the determination and
assessment of any Excise Tax and, at its sole option, the Company may pursue or
forego any and all administrative appeals, proceedings, hearings, and
conferences with any taxing authority in respect of such Excise Tax (including
any interest or penalties thereon); provided, however, that the Company's
control over any such proceedings shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder, and the Employee shall be
entitled to settle or contest any other issue raised by the Internal Revenue
Service or any other taxing authority. The Employee shall cooperate with the
Company in any proceedings relating to the determination and assessment of any
Excise Tax and shall not take any position or action that would materially
increase the amount of any Gross-Up Payment hereunder.
7. Employee Obligations and Conditions to Receipt of Payments and
--------------------------------------------------------------
Benefits.
--------
(a) Obligations of the Employee. The following requirements must be
met by the Employee as a condition to his right to receive, continue to
receive, or retain payments and benefits under the Policy, as specified in
Section 7(b), (c) and (d):
(i) The Employee, acting alone or with others, directly or
indirectly, shall not, during the Non-competition Period, either as
employee, employer, consultant, advisor, or director, or as an owner,
investor, partner, or shareholder unless the Employee's interest is
insubstantial, engage in or become associated with a "Competitive
Activity." For this purpose, (A) the "Non-competition Period" means
the period prior to a Change in Control and either during Employee's
employment or within two years following termination of such
employment with the Company and any subsidiary or for such shorter
period following such termination as may be provided by applicable
law; and (B) the term "Competitive Activity" means any business or
other endeavor that engages in a line of business in any geographic
location that is substantially the same as either (1) any line of
operating business which the Company or a subsidiary engages in,
conducts, or, to the knowledge of the Executive, has
8
<PAGE>
definitive plans to engage in or conduct, or (2) any operating
business that has been engaged in or conducted by the Company or a
subsidiary and as to which, to the knowledge of the Employee, the
Company or subsidiary has covenanted in writing, in connection with
the disposition of such business, not to compete therewith. The
Committee shall, in the reasonable exercise of its discretion,
determine which lines of business the Company and its subsidiaries
conduct on any particular date and which third parties may reasonably
be deemed to be in competition with the Company and its subsidiaries.
For purposes of this Section 7(a) (including clause (ii) below), the
Employee's interest as a shareholder is insubstantial if it represents
beneficial ownership of less than five percent of the outstanding
class of stock, and the Employee's interest as an owner, investor, or
partner is insubstantial if it represents ownership, as determined by
the Committee in its discretion, of less than five percent of the
outstanding equity of the entity.
(ii) During the period prior to a Change in Control and either
during the Employee's employment or within two years following
termination of such employment with the Company or any subsidiary or
for such shorter period following termination as may be provided by
applicable law, the Employee, acting alone or with others, directly or
indirectly, shall not (A) induce any customer or supplier of the
Company or a subsidiary or affiliate, or other company with which the
Company or a subsidiary or affiliate has a business relationship, to
curtail, cancel, not renew, or not continue his or her or its business
with the Company or any subsidiary or affiliate; or (B) induce, or
attempt to influence, any employee of or service provider to the
Company or a subsidiary or affiliate to terminate such employment or
service.
(iii) The Employee shall not disclose, use, sell, or otherwise
transfer, except in the course of employment with or other service to
the Company or any subsidiary or affiliate, any confidential or
proprietary information of the Company or any subsidiary or affiliate,
including but not limited to information regarding the Company's
current and potential customers, organization, employees, finances,
and methods of operation and investments, so long as such information
has not otherwise been disclosed to the public or is not otherwise in
the public domain, except as required by law or pursuant to legal
process, and the Employee shall not make statements or
representations, or otherwise communicate, directly or indirectly, in
writing, orally, or otherwise, or take any other action which may,
directly or indirectly, disparage or be damaging to the Company or any
of its subsidiaries or affiliates or their respective officers,
directors, employees, advisors, businesses or reputations, except as
required by law or pursuant to legal process.
(iv) The Employee shall cooperate with the Company or any
subsidiary or affiliate by making himself available to testify on
behalf of the Company or such subsidiary or affiliate in any action,
suit, or proceeding, whether civil, criminal, administrative, or
investigative, and otherwise to assist the Company or any subsidiary
or affiliate in any such action, suit, or proceeding by providing
information and meeting and consulting with members
9
<PAGE>
of management of, other representatives of, or counsel to, the Company
or such subsidiary or affiliate, as reasonably requested.
(v) The Employee shall deliver promptly to the Company on
termination of the Employee's employment, or at any time the Company
may so request, all documents, memoranda, notes, records, files,
reports, and other materials, and all copies thereof, including
digital versions, relating to the Company and its subsidiaries and
affiliates, and all other property of the Company and its subsidiaries
and affiliates, then in the possession of or under the Employee's
control.
(b) Effect of the Employee's Failure to Comply with Obligations. The
Company shall have no obligations to make payments or provide benefits to
the Employee under this Policy if, in the case of an Employee whose
employment terminates prior to a Change in Control, the Employee has failed
or fails to comply with the obligations set forth in Section 7(a), other
than inadvertent and inconsequential events constituting non-compliance,
during the period of two years prior to the Employee's termination of
employment or at any time following such termination of employment.
(c) Employee Obligation to Execute Release and Termination Agreement.
The Company's obligations under this Policy to make payments and provide
benefits is conditioned upon the Employee's signing a release and
termination agreement and the expiration of any revocation period set forth
therein. The Committee shall specify the form and content of such
agreement, and may modify such form and content from time to time;
provided, however, that, such agreement shall set forth the obligations in
Section 7(a) and the Employee shall agree to comply therewith, and the
Employee shall agree to the terms of Section 7(d); and provided further,
that during the three years following a Change in Control, such agreement
shall not be modified in a manner that increases the obligations or
decreases the rights of the Employee as compared to the form of such
agreement in use prior to the Change in Control.
(d) Clawback Provision. In the case of any termination of the
Employee's employment prior to a Change in Control, if the Employee has
failed to comply with the obligations under Section 7(a) (other than an
inadvertent and inconsequential event constituting non-compliance) during
the two years prior to termination or during the period following
termination which is the lesser of two years or the period during which the
obligations under Section 7(a) continue to apply, all of the following
forfeitures will result:
(i) The unexercised portion of any option, whether or not
vested, and any other award not then vested will be immediately
forfeited and canceled.
(ii) The Employee will be obligated to repay to the Company, in
cash, within five business days after demand is made therefor by the
Company,
(A) the total amount of any cash payments made to the
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Employee under this Policy, other than (i) such Employee's annual
salary that had been payable as of the date of termination of
employment, together with salary, incentive compensation and
benefits which had been earned or become payable as of the date
of termination but which had not yet been paid to the Employee
and unreimbursed business expenses reimbursable under Company
policies then in effect, and (ii) cash payments under welfare
benefit plans;
(B) other cash amounts paid to the Employee under any AIP
and LTIP awards since the date two years prior to the Employee's
termination of employment; and
(C) the Award Gain (as defined below) realized by the
Employee upon each exercise of an option or settlement of a
restricted stock or stock unit award (regardless of any elective
deferral) since the date two years prior to Employee's
termination of employment. For purposes of this Section 7(d),
the term "Award Gain" shall mean (1), in respect of a given
option exercise, the product of (X) the fair market value per
share of stock at the date of such exercise (without regard to
any subsequent change in the market price of shares) minus the
exercise price times (Y) the number of shares as to which the
option was exercised at that date, and (ii), in respect of any
other settlement of an award granted to the Employee, the fair
market value of the cash or stock paid or payable to the Employee
(regardless of any elective deferral) less any cash or the fair
market value of any stock or property (excluding any payment of
tax withholding) paid by the Employee to the Company as a
condition of or in connection such settlement.
8. Other Provisions Applicable to Severance Payments and Benefits.
--------------------------------------------------------------
(a) Timing of Payments. All payments required to be paid as a lump
sum under Section 4 and any Annex hereto implementing Section 4 shall be
paid not later than the 15th day following the date of termination of
Employee's employment (or the date such lump sum otherwise became payable
hereunder). Other payments shall be made as promptly as practicable
following the earliest date such payments are due.
(b) Limitation of Benefits In Case of Certain Business Dispositions.
Notwithstanding anything in this Policy to the contrary, an Employee shall
not be entitled to any payments or benefits upon a termination of
employment prior to or more than three years after a Change in Control
under Section 4, and any Annex implementing Section 4, unless the Committee
in its sole discretion provides otherwise, in the event such termination of
employment results from the sale or spin-off of a subsidiary, the sale of a
division, other business unit or facility in which the Employee was
employed immediately prior to such sale, and the Employee has been offered
employment with the purchaser of such subsidiary, division, other business
unit or facility or the spun-off entity on substantially the same terms and
conditions under which the Employee worked prior to the sale. Such terms
and conditions must include an agreement or plan binding on such purchaser
or spun-off entity providing
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<PAGE>
that, upon any termination of the Employee's employment with the purchaser
or spun-off entity of the kinds described in Section 4, and any Annex
hereto applicable to the Employee, within three years following such sale
or spin-off (but not past the attainment of age 65 by the Employee), the
purchaser or spun-off entity shall pay to such Employee amounts comparable
to the payments that the Employee would have received under the applicable
provision of Section 4 and such Annex, and provide comparable benefits, as
if the Employee had been terminated in like circumstances at the time of
such sale and provided payments and benefits under this Policy.
(c) Deferrals Included in Salary and Bonus. All references in this
Policy to salary and annual incentive amounts mean those amounts before
reduction pursuant to any deferred compensation plan or agreement.
(d) Payments and Benefits to Beneficiary Upon Employee's Death. In
the event of the death of an Employee, all payments and benefits hereunder
due to such Employee shall be paid or provided to his Beneficiary.
(e) Transfers of Employment. Anything in this Policy to the contrary
notwithstanding, a transfer of employment from the Company to a subsidiary
or vice versa shall not be considered a termination of employment for
purposes of this Policy.
(f) Calculation of Months. Provisions of this Policy which calculate
the number of months remaining until age 65 will treat, for example, the
period from August 16 through October 15 as two whole months, will treat
any remaining partial month as one whole month, and will treat any negative
number resulting from termination after age 65 as zero.
9. Other Plans and Policies; Non-Duplication of Payments or
--------------------------------------------------------
Benefits.
--------
(a) Rights Under Other Plans. Except to the extent that the terms of
this Policy confer rights to severance payments and benefits that are more
favorable to the Employee than are available under any other employee
(including executive) benefit plan or executive compensation plan of the
Company or a subsidiary in which the Employee is a participant, the
Employee's rights under any such employee (including executive) benefit
plan or executive compensation plan shall be determined in accordance with
the terms of such plan (as it may be modified or added to by the Company
from time to time), except as otherwise provided in Section 5.
(b) Superseded Agreements and Rights. This Policy constitutes the
entire understanding between the Company and the Employee relating to
severance payments and benefits to be paid or provided to the Employee by
the Company and its subsidiaries, and supersedes and cancels all prior
agreements and understandings with respect to the subject matter of this
Policy, except as otherwise provided in this Section 9(b). In order for
the Employee to be entitled to any payments or benefits under this Policy,
Employee must agree, within such period after the Committee has designated
Employee as eligible to be covered by the Policy as the Committee may
specify, that the Employee shall not be entitled to benefits under any
Prior Executive Severance Agreement between the Company and the Employee,
except to the extent that limited stock appreciation rights may continue in
effect under Section 4 and any
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Annex applicable to Employee and Section 5(a) hereof. If, however, the
Employee has previously entered or after the Effective Date enters into an
employment agreement with the Company or a subsidiary, that employment
agreement will not be superseded by this Policy unless it specifically so
provides.
(c) Non-Duplication of Payments and Benefits. The Employee shall not
be entitled to any payment or benefit under this Policy which duplicates a
payment or benefit received or receivable by the Employee under any other
employment agreement, severance agreement, or other agreement or
understanding, or under any employee (including executive) compensation or
benefit plan, of the Company or a subsidiary.
10. Miscellaneous
-------------
(a) Withholding. The Company shall have the right to deduct from all
payments hereunder any taxes required by law to be withheld therefrom.
(b) No Right To Employment. Nothing in this Policy shall be
construed as giving any person the right to be retained in the employment
of the Company or any subsidiary, nor shall it affect the right of the
Company or any subsidiary to dismiss an Employee without any liability
except as provided in this Policy.
(c) Legal Fees. The Company shall pay all legal fees and related
expenses incurred by an Employee in seeking to obtain or enforce any
payment, benefit or right provided by this Policy; provided; however, that
the Employee shall be required to repay any such amounts to the Company to
the extent that an arbitrator or a court of competent jurisdiction issues a
final, unappealable order setting forth a determination that the position
taken by the Employee was frivolous or advanced in bad faith.
(d) Amendment and Termination. The Board of Directors of the Company
may amend or terminate this Policy at any time, provided, however, that,
without the written consent of an affected Employee, (i), during the three
years following a Change in Control, this Policy may not be amended or
terminated in any manner materially adverse to an Employee, and (ii), at
any other time, this Policy may not be amended or terminated in any manner
materially adverse to an Employee except with one year's advance notice to
the affected Employee, and no such amendment or termination shall be
effective to limit any right or benefit relating to a termination during
the three years after a Change in Control under Section 4 and any Annex
implementing Section 4, Section 5 or Section 6 if a Change in Control has
occurred prior to the lapse of such one-year period.
(e) Governing Law; Arbitration. THE VALIDITY, CONSTRUCTION, AND
EFFECT OF THIS POLICY AND ANY RULES AND REGULATIONS RELATING TO THIS POLICY
SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS (INCLUDING THOSE GOVERNING
CONTRACTS) OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAWS, AND APPLICABLE FEDERAL LAW. If any provision hereof
shall be held by a court or arbitrator of competent jurisdiction to be
invalid and unenforceable, the remaining
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provisions hall continue to be fully effective. Any dispute or controversy
arising under or in connection with this Policy shall be settled
exclusively by arbitration in New York, New York by three arbitrators in
accordance with the rules of the American Arbitration Association in effect
at the time of submission to arbitration. Judgment may be entered on the
arbitrators' award in any court having jurisdiction. For purposes of
settling any dispute or controversy arising hereunder or for the purpose of
entering any judgment upon an award rendered by the arbitrators, the
Company and the Employee hereby consent to the jurisdiction of any or all
of the following courts: (i) the United States District Court for the
Southern District of New York, (ii) any of the courts of the State of New
York, or (iii) any other court having jurisdiction. The Company and the
Employee hereby waive, to the fullest extent permitted by applicable law,
any objection which it may now or hereafter have to such jurisdiction and
any defense of inconvenient forum. The Company and the Employee hereby
agree that a judgment upon an award rendered by the arbitrators may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
(f) Nonassignability. Payments and benefits under this Policy may
not be assigned by the Employee. The terms and conditions of this Policy
shall be binding on the successors and assigns of the Company.
(g) No Duty to Mitigate. No employee shall be required to mitigate,
by seeking employment or otherwise, the amount of any payment that the
Company becomes obligated to make under this Policy, and, except as
expressly provided in this Policy, amounts or other benefits to be paid or
provided to an Employee pursuant to this Policy shall not be reduced by
reason of the Employee's obtaining other employment or receiving similar
payments or benefits from another employer.
(h) Foreign Participants. The terms and conditions of participation
of any Employee whose employment is subject to the laws or customs of any
jurisdiction other than the United States or a state thereof may be
modified by the Committee to conform to or otherwise take into account such
laws and customs. In no event shall payments or benefits be payable
hereunder if and to the extent that such benefits would duplicate severance
payments or benefits payable in accordance with such laws and customs,
although severance payments and benefits payable hereunder may supplement
those payable under such laws and customs. This Policy will be of no force
or effect to the extent superseded by foreign law.
(i) Effective Date. This Policy is effective as of April 13, 2000.
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Annex I
Executive Separation Policy
TIER 1
Designation of Participants and Terms
This documents sets forth the participants designated in the Tier 1
participation level under the International Flavors & Fragrances Inc. Executive
Separation Policy (the "Policy"). All of the terms of the Policy are
incorporated into this Annex, and capitalized terms defined in the Policy have
the same meaning in this Annex.
I. Designation of Participants in Tier 1.
The following Employees are hereby designated as Tier 1 participants under
the Policy.
[Insert list of participants]
II. Terms of Participation in Tier 1
Subject to all of the terms and conditions of the Policy, the terms and
conditions set forth below apply to Employees designated as Tier 1 level
participants. (A summary of Tier 1 terms and conditions shall be attached
hereto as Attachment A, but if there is any inconsistency between the terms and
conditions of this Annex and Attachment A, this Annex shall take precedence.)
This Annex shall have no application to Employees designated as participants at
a level other than Tier 1, unless the Committee shall adopt such terms and
conditions and so specify in a separate Annex to the Policy.
(a) Termination by the Company Not for Cause Prior to or More than
Three Years After a Change in Control. An Employee who is eligible for
Tier 1 severance payments and benefits under the Policy pursuant to Part I
of this Annex shall be entitled to receive the payments and benefits from
the Company upon termination of employment at any time prior to a Change in
Control or more than three years following a Change in Control, if such
termination is by the Company (or its subsidiaries) other than for Cause
and such termination is not due to death, Disability or Retirement, as
follows:
(i) Such Employee's annual salary otherwise payable through the
date of termination of employment, together with salary, incentive
compensation and benefits which have been earned or become payable as
of the date of termination but which have not yet been paid to the
Employee and unreimbursed business expenses reimbursable under Company
policies then in effect; provided, however, that the Company and its
subsidiaries may offset such amounts against obligations and
liabilities of the Employee to the Company and its subsidiaries.
(ii) A lump-sum cash payment of a prorated portion of the
Employee's
<PAGE>
annual incentive under any AIP that would have become payable for
performance in the year of termination had Employee's employment
continued, with such award prorated based on the number of days during
the year of termination which preceded the Employee's termination.
This amount will be payable at such time as annual incentives for
performance in the year of termination otherwise become payable.
(iii) For a period terminating on the earliest of 24 months
following the date of termination of employment or the Employee's
attaining age 65, severance payments, paid periodically at the date
annual salary payments would otherwise have been made, at a monthly
rate equal to one-twelfth of the sum of the Employee's annual salary
at the date of termination plus the Employee's average annual
incentive award paid for performance in the three years preceding the
year of termination under any AIP (or averaged over the lesser number
of years during which the Employee was eligible for AIP awards or, if
not eligible before the year of termination, the Employee's target
annual incentive under the AIP for the year of termination).
(iv) Subject to Section 5(b) of the Policy, and unless
otherwise determined by the Committee, the Employee's options which
have not vested at the time of the Employee's termination of
employment shall be immediately forfeited and the Employee's options
which have vested at or before the Employee's termination of
employment shall remain outstanding and exercisable only for 90 days
after such termination (but in no event past the stated expiration
date of the option), and at the end of such period such options shall
be canceled.
(v) Subject to Section 5(b) of the Policy, and unless
otherwise determined by the Committee, the Employee's restricted stock
and stock unit grants and LTIP awards which have not vested at the
time of the Employee's termination of employment shall be immediately
forfeited.
(vi) For a period terminating on the earliest of 24 months
following the date of termination of employment, the commencement of
eligibility for benefits under a new employer's welfare benefits plan,
or the Employee's attaining age 65, the maintenance in effect for the
continued benefit of the Employee and his dependents of:
(A) all insured and self-insured medical and dental
benefit Plans of the Company and subsidiaries in which the
Employee was participating immediately prior to termination,
provided that the Employee's continued participation is possible
under the general terms and conditions of such Plans (and any
applicable funding media) and the Employee continues to pay an
amount equal to the Employee's regular contribution for such
participation; and
(B) the group life insurance, group accident insurance,
and group disability insurance policies of the Company and
subsidiaries then in effect and covering the Employee immediately
prior to termination;
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<PAGE>
provided, however, that if the Company so elects, or if such continued
participation is not possible under the general terms and conditions
of such plans or under such policies, the Company, in lieu of the
foregoing, shall arrange to have issued for the benefit of the
Employee and the Employee's dependents individual policies of
insurance providing benefits substantially similar (on an after-tax
basis) to those described in this Part II(a)(vi), or, if such
insurance is not available at a reasonable cost to the Company, shall
otherwise provide to the Employee and the Employee's dependents
substantially equivalent benefits (on an after-tax basis); provided
further that, in no event shall the Employee be required to pay any
premiums or other charges in an amount greater than that which the
Employee would have paid in order to participate in the Company's
Plans and policies.
(vii) The Employee's benefits and rights under the Retirement
Plan and any Excess Benefit Plan shall be determined under the
applicable provisions of such Plans.
(b) Termination by the Company for Cause or Voluntary Termination by
the Employee Prior to or More than Three Years After a Change in Control.
An Employee who is eligible for Tier 1 severance payments and benefits
under the Policy pursuant to Part I of this Annex shall be entitled to
receive the payments and benefits from the Company upon termination of
employment at any time prior to a Change in Control or more than three
years following a Change in Control, if such termination is by the Company
(or its subsidiaries) for Cause or is voluntary by the Employee and such
termination is not due to death, Disability or Retirement, and shall be
subject to other terms, as follows:
(i) Such Employee's annual salary otherwise payable through
the date of termination of employment, together with salary, incentive
compensation and benefits which have been earned or become payable as
of the date of termination but which have not yet been paid to the
Employee and unreimbursed business expenses reimbursable under Company
policies then in effect; provided, however, that the Company and its
subsidiaries may offset such amounts against obligations and
liabilities of the Employee to the Company and its subsidiaries.
(ii) No portion of the Employee's annual incentive under any
AIP for the year of termination shall be or become payable.
(iii) Subject to Section 5(b) of the Policy, and unless
otherwise determined by the Committee, the Employee's options which
have not vested at the time of the Employee's termination of
employment shall be immediately forfeited and the Employee's options
which have vested at or before the Employee's termination of
employment (A), if termination is by the Company (or its subsidiaries)
for Cause, such options shall be immediately canceled, and (B), if
termination is voluntary by the Employee, such options shall remain
outstanding and exercisable only for 90 days after such termination
(but in no event past the stated expiration date of the option), and
at the end of such period such options shall be canceled.
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<PAGE>
(iv) Subject to Section 5(b) of the Policy, the Employee's
restricted stock and stock unit grants and LTIP awards which have not
vested at the time of the Employee's termination of employment shall
be immediately forfeited.
(v) The Employee's benefits and rights under any welfare
benefit Plan, the Retirement Plan and any Excess Benefit Plan shall be
determined under the applicable provisions of such Plans.
(c) Termination Due to Death, Disability or Retirement Prior to or
More than Three Years After a Change in Control. An Employee who is
eligible for Tier 1 severance payments and benefits under the Policy
pursuant to Part I of this Annex shall be entitled to receive the payments
and benefits from the Company upon termination of employment at any time
prior to a Change in Control or more than three years following a Change in
Control, if such termination is due to death, Disability or Retirement and
is not for Cause, and shall be subject to other terms, as follows:
(i) Such Employee's annual salary otherwise payable through
the date of termination of employment, together with salary, incentive
compensation and benefits which have been earned or become payable as
of the date of termination but which have not yet been paid to the
Employee and unreimbursed business expenses reimbursable under Company
policies then in effect; provided, however, that the Company and its
subsidiaries may offset such amounts against obligations and
liabilities of the Employee to the Company and its subsidiaries.
(ii) A cash payment of a prorated portion of the Employee's
annual incentive under any AIP that would have become payable for
performance in the year of termination had Employee's employment
continued, with such award prorated based on the number of days during
the year of termination which preceded the Employee's termination.
This amount will be payable at such time as annual incentives for
performance in the year of termination otherwise become payable.
(iii) Subject to Section 5(b) of the Policy, the Employee's
options which have not vested at the time of the Employee's
termination of employment shall be immediately fully vested and
exercisable (except the Committee may impose restrictions on exercise
in the case of Retirement), and the Employee's options shall remain
outstanding and exercisable after termination for the following
periods (but in no event past the stated expiration date of the
option): (A) for one year if termination resulted from the Employee's
death, (B) three years if termination resulted from the Employee's
Disability, and (C) for the remaining period until the stated
expiration date of the option if termination resulted from Retirement.
At the end of the applicable post-termination exercise period, such
options shall be canceled.
(iv) Subject to Section 5(b) of the Policy, the Employee's
restricted stock and stock unit awards which have not vested at the
time of the Employee's termination of employment shall be immediately
fully vested and,
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<PAGE>
unless waived or deferred by the Employee in the case of termination
due to Disability or Retirement, stock unit awards shall be settled as
promptly as practicable following termination.
(v) A cash payment of a prorated portion of each of the
Employee's LTIP awards that would have become payable for each
performance cycle on-going at the time of termination had Employee's
employment continued through the end of such performance cycle, with
such LTIP award prorated based on the number of days during the
performance cycle preceding the Employee's termination. This amount
will be payable at such time as the LTIP awards for the applicable
performance cycle otherwise become payable, except the Committee may
instead make a good faith estimate of the actual performance achieved
through the date of termination and rely on this estimate to determine
the amount payable in settlement of such LTIP award, in which case
such payment will constitute full settlement of such LTIP award.
(vi) The Employee's benefits and rights under any welfare benefit
Plan, the Retirement Plan and any Excess Benefit Plan shall be
determined under the applicable provisions of such Plans.
(d) Termination by the Company Not for Cause or by Employee for Good
Reason Within Three Years After a Change in Control. An Employee who is
eligible for Tier 1 severance payments and benefits under the Policy
pursuant to Part I of this Annex shall be entitled to receive the payments
and benefits from the Company upon termination of employment within three
years following a Change in Control, if such termination is by the Company
(or its subsidiaries) not for Cause or is by the Employee for Good Reason
and such termination is not due to death, Disability or Retirement, and
shall be subject to other terms, as follows:
(i) Such Employee's annual salary otherwise payable through the
date of termination of employment, together with salary, incentive
compensation and benefits which have been earned or become payable as
of the date of termination but which have not yet been paid to the
Employee and unreimbursed business expenses reimbursable under Company
policies then in effect; provided, however, that the Company and its
subsidiaries may offset such amounts against obligations and
liabilities of the Employee to the Company and its subsidiaries.
(ii) A cash payment of a prorated portion of the Employee's
annual incentive under any AIP, determined as the greater of the
target annual incentive for the year of termination or the annual
incentive that would have become payable for performance in the year
of termination had Employee's employment continued, with the award so
determined then prorated based on the number of days during the year
of termination which preceded the Employee's termination. The amount
determined based on target annual incentive will be payable as a lump
sum, with any additional amount resulting from performance over the
full year of termination payable at such time as annual incentives for
performance in that year otherwise become payable.
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<PAGE>
(iii) A lump-sum cash severance payment equal to the product of
the Employee's Annual Compensation, multiplied by 3.
(iv) A cash payment of 100% of each of the Employee's LTIP
awards for each performance cycle on-going at the time of termination,
determined as the greater of the target LTIP award for that
performance cycle or the LTIP award that would have become payable had
Employee's employment continued through the end of such performance
cycle. The amount determined based on the target LTIP awards will be
payable as a lump sum, with any additional amount resulting from
performance over the full performance cycle payable at such time as
LTIP awards otherwise become payable.
(v) Subject to Section 5(b) of the Policy, the Employee's
options which have not vested at the time of the Employee's
termination of employment shall be immediately fully vested and
exercisable, and the Employee's options shall remain outstanding and
exercisable for the remaining period until the stated expiration date
of the option.
(vi) Subject to Section 5(b) of the Policy, the Employee's
restricted stock and stock unit awards which have not vested at the
time of the Employee's termination of employment shall be immediately
fully vested and, unless waived or deferred by the Employee, stock
unit awards shall be settled as promptly as practicable following
termination.
(vii) The Employee's Designated Awards, if any, will be subject
to the terms of the Plan under which they were granted, and, in the
case of options which are Designated Awards, Employee will be entitled
to payment pursuant to the limited stock appreciation rights, if any,
that were originally granted to Employee under the Prior Executive
Severance Agreement. These limited stock appreciation rights are
hereby amended and restated to provide that, for each share of the
Company's Common Stock subject to any option which is a Designated
Award that remains outstanding at the date of Employee's termination
subject to this Part II(d), whether or not such option is then
exercisable, the Company shall pay to Employee the amount determined
by subtracting the exercise price thereof from the highest of (A) the
market price per share of Common Stock on the New York Stock Exchange
at the close of business on the effective day of termination, (B) the
price per share contained in any published tender offer made within
one year before or after the date of the Change in Control, (C) the
price contained in any merger or acquisition agreement entered into by
the Company and any third party within one year before or after the
date of the Change in Control, or (D) the market price per share of
Common Stock on the New York Stock Exchange on the date of the Change
in Control, and, upon such payment, such option shall be deemed
canceled and annulled.
(viii) The Employee will be credited with additional age and
years of service under any Excess Benefit Plan as though the Employee
continued to be employed for a period of 36 months after termination
at a rate of
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<PAGE>
compensation equal to his or her Annual Compensation, and the Employee
will be deemed to be fully vested under any such Excess Benefit Plan,
with the time or times at which benefits are payable under any such
Plan unchanged; provided, however, that if an Excess Benefit Plan does
not permit such additional crediting of age and years of service, then
Employee will be paid in a lump sum the present value of the
additional benefits he would have received under such Plan had
Employee's employment continued to the third anniversary of his
termination at an annual rate of compensation equal to his or her
Annual Compensation; provided further, that the Company's obligations
under any such Excess Benefit Plan shall be fully funded by deposits
into a "rabbi trust" the trustee of which shall be independent of the
Company and the terms of which shall preclude access by the Company to
any of the trust assets, except for attachments by creditors of the
Company upon insolvency or bankruptcy of the Company, until all
obligations to the Employee and his beneficiaries have been satisfied;
and provided further, that the Company may elect to satisfy all
obligations to the Employee and his beneficiaries by payment, as a
lump sum, of the present value of the accrued benefit under any Excess
Plan.
(ix) For a period terminating on the earlier of 36 months
following the date of termination of employment or the commencement of
eligibility for benefits under a new employer's welfare benefits plan,
the maintenance in effect for the continued benefit of the Employee
and his dependents of:
(A) all insured and self-insured medical and dental benefit
plans of the Company and subsidiaries in which the Employee was
participating immediately prior to termination, provided that the
Employee's continued participation is possible under the general
terms and conditions of such plans (and any applicable funding
media) and the Employee continues to pay an amount equal to the
Employee's regular contribution for such participation; and
(B) the group life insurance and group disability insurance
policies of the Company and subsidiaries then in effect for
Employee;
provided, however, that if the Company so elects, or if such continued
participation is not possible under the general terms and conditions
of such plans or under such policies, the Company, in lieu of the
foregoing, shall arrange to have issued for the benefit of the
Employee and the Employee's dependents individual policies of
insurance providing benefits substantially similar (on an after-tax
basis) to those described in this Part II(d)(ix), or, if such
insurance is not available at a reasonable cost to the Company, shall
otherwise provide the Employee and the Employee's dependents
substantially equivalent benefits (on an after-tax basis); provided
further that, in no event shall the Employee be required to pay any
premiums or other charges in an amount greater than that which the
Employee would have paid in order to participate in the Company's
plans and policies. Notwithstanding anything to the contrary contained
herein, in the event the Employee becomes eligible for benefits under
a new employer's welfare benefit plan during the 36 month
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<PAGE>
period following the date of termination, the benefits required to be
provided to the employee pursuant to this Part II(d)(iv) shall be
reduced by the amount of substantially similar benefits provided to
the Employee at no additional cost by such new employer.
(e) Termination by the Company for Cause or Voluntary Termination by
the Employee Within Three Years After a Change in Control. An Employee who
is eligible for Tier 1 severance payments and benefits under the Policy
pursuant to Part I of this Annex shall be entitled to receive the payments
and benefits from the Company upon termination of employment at any time
within three years following a Change in Control, if such termination is by
the Company (or its subsidiaries) for Cause or is voluntary by the Employee
not for Good Reason and such termination is not due to death, Disability or
Retirement, and shall be subject to other terms, as follows:
(i) Such Employee's annual salary otherwise payable through
the date of termination of employment, together with salary, incentive
compensation and benefits which have been earned or become payable as
of the date of termination but which have not yet been paid to the
Employee and unreimbursed business expenses reimbursable under Company
policies then in effect; provided, however, that the Company and its
subsidiaries may offset such amounts against obligations and
liabilities of the Employee to the Company and its subsidiaries.
(ii) No portion of the Employee's annual incentive under any
AIP for the year of termination shall be or become payable.
(iii) Subject to Section 5(b) of the Policy, and unless
otherwise determined by the Committee, if termination is by the
Company (or its subsidiaries) for Cause all of the Employee's options
(vested and unvested) shall be immediately forfeited and canceled, and
if termination is voluntary by the Employee, all of the Employee's
options which have not vested at the time of his termination shall be
immediately fully vested and exercisable, and all of the Employee's
options which have vested at or before his termination shall remain
outstanding and exercisable for 90 days after such termination (but in
no event past the stated expiration date of the option), and at the
end of such period such options shall be canceled.
(iv) Subject to Section 5(b) of the Policy, the Employee's
restricted stock and stock unit grants and LTIP awards which have not
vested at the time of the Employee's termination of employment shall
be immediately forfeited.
(v) The Employee's benefits and rights under any welfare
benefit Plan, the Retirement Plan and any Excess Benefit Plan shall be
determined under the applicable provisions of such Plans.
(f) Termination Due to Death, Disability or Retirement Within Three
Years After a Change in Control. An Employee who is eligible for Tier 1
severance payments and benefits under the Policy pursuant to Part I of this
Annex shall be entitled to receive the payments and benefits from the
Company upon termination of employment at any time within three years
following a Change in Control, if such
8
<PAGE>
termination is due to death, Disability or Retirement and is not for Cause
or voluntary by the Employee for Good Reason, and shall be subject to other
terms, as follows:
(i) Such Employee's annual salary otherwise payable through
the date of termination of employment, together with salary, incentive
compensation and benefits which have been earned or become payable as
of the date of termination but which have not yet been paid to the
Employee and unreimbursed business expenses reimbursable under Company
policies then in effect; provided, however, that the Company and its
subsidiaries may offset such amounts against obligations and
liabilities of the Employee to the Company and its subsidiaries.
(ii) A cash payment of a prorated portion of the Employee's
annual incentive under any AIP, determined as the greater of the
target annual incentive for the year of termination or the annual
incentive that would have become payable for performance in the year
of termination had Employee's employment continued, with the award so
determined then prorated based on the number of days during the year
of termination which preceded the Employee's termination. The amount
determined based on target annual incentive will be payable as a lump
sum, with any additional amount resulting from performance over the
full year of termination payable at such time as annual incentives for
performance in that year otherwise become payable.
(iii) Subject to Section 5(b) of the Policy, the Employee's
options which have not vested at the time of the Employee's
termination of employment shall be immediately fully vested and
exercisable, and the Employee's options shall remain outstanding and
exercisable after termination for the following periods (but in no
event past the stated expiration date of the option): (A) for one
year if termination resulted from the Employee's death, (B) three
years if termination resulted from the Employee's Disability, (C) for
the remaining period until the stated expiration date of the option if
termination resulted from Retirement or (D), unless otherwise
determined by the Committee, for 90 days. At the end of the
applicable post-termination exercise period, such options shall be
canceled.
(iv) Subject to Section 5(b) of the Policy, the Employee's
restricted stock and stock unit awards which have not vested at the
time of the Employee's termination of employment shall be immediately
fully vested and, unless waived or deferred by the Employee in the
case of termination due to Disability or Retirement, stock unit awards
shall be settled as promptly as practicable following termination.
(v) A cash payment of a prorated portion of each of the
Employee's LTIP awards that would have become payable for each
performance cycle on-going at the time of termination, determined as
the greater of the target LTIP award for that performance cycle or the
LTIP award that would have become payable had Employee's employment
continued through the end of such performance cycle, with each LTIP
award prorated based on the number of days during the performance
cycle preceding the Employee's termination. The amount determined
based on the target LTIP awards will be payable as a lump
9
<PAGE>
sum, with any additional amount resulting from performance over the
full performance cycle payable at such time as LTIP awards otherwise
become payable.
(vi) The Employee's benefits and rights under any welfare
benefit Plan, the Retirement Plan and any Excess Benefit Plan shall be
determined under the applicable provisions of such Plans, except that
the Employee will be deemed to be fully vested under any such Excess
Benefit Plan.
(g) Entitlement to Gross-Up. Tier I level participants shall be
entitled to the Gross-Up Payment in accordance with Section 6 of the
Policy.
10
<PAGE>
Attachment A
[Matrix for Tier 1 Participants]
1
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-99.10(V)
<SEQUENCE>8
<FILENAME>0008.txt
<DESCRIPTION>180-DAY CREDIT AGREEMENT
<TEXT>
<PAGE>
Exhibit 10(v)
EXECUTION COPY
U.S. $1,000,000,000
180-DAY CREDIT AGREEMENT
Dated as of November 2, 2000
Among
INTERNATIONAL FLAVORS & FRAGRANCES INC.
as Borrower
-- --------
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
-- ------- -------
and
CITIBANK, N.A.
as Agent
-- -----
and
SALOMON SMITH BARNEY INC.
as Arranger
-- --------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I 1
SECTION 1.01. Certain Defined Terms 1
---------------------
SECTION 1.02. Computation of Time Periods 10
---------------------------
SECTION 1.03. Accounting Terms 10
----------------
ARTICLE II
SECTION 2.01. The Revolving Credit Advances 10
-----------------------------
SECTION 2.02. Making the Revolving Credit Advances 11
------------------------------------
SECTION 2.03. The Competitive Bid Advances 11
----------------------------
SECTION 2.04. Fees 14
----
SECTION 2.05. Optional Termination or Reduction of the Commitments 14
----------------------------------------------------
SECTION 2.06. Repayment of Revolving Credit Advances 15
--------------------------------------
SECTION 2.07. Interest on Revolving Credit Advances 15
-------------------------------------
SECTION 2.08. Interest Rate Determination 15
---------------------------
SECTION 2.09. Optional Conversion of Revolving Credit Advances 16
------------------------------------------------
SECTION 2.10. Prepayments of Revolving Credit Advances 16
----------------------------------------
SECTION 2.11. Increased Costs 17
---------------
SECTION 2.12. Illegality 17
----------
SECTION 2.13. Payments and Computations 17
-------------------------
SECTION 2.14. Taxes 18
-----
SECTION 2.15. Sharing of Payments, Etc. 19
------------------------
SECTION 2.16. Evidence of Debt 20
----------------
SECTION 2.17. Use of Proceeds 20
---------------
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03 20
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing 21
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing 22
------------------------------------------------------
SECTION 3.04. Determinations Under Section 3.01 22
---------------------------------
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Borrower 22
ARTICLE V
SECTION 5.01. Affirmative Covenants 23
---------------------
SECTION 5.02. Negative Covenants 25
------------------
SECTION 5.03. Financial Covenant 26
------------------
ARTICLE VI
SECTION 6.01. Events of Default 27
-----------------
ARTICLE VII
SECTION 7.01. Authorization and Action 29
------------------------
SECTION 7.02. Agent's Reliance, Etc. 29
---------------------
SECTION 7.03. Citibank and Affiliates 29
-----------------------
SECTION 7.04. Lender Credit Decision 29
----------------------
SECTION 7.05. Indemnification 29
---------------
SECTION 7.06. Successor Agent 30
---------------
SECTION 7.07. Other Agents. 30
------------
ARTICLE VIII
SECTION 8.01. Amendments, Etc. 30
---------------
SECTION 8.02. Notices, Etc. 30
------------
SECTION 8.03. No Waiver; Remedies 31
-------------------
SECTION 8.04. Costs and Expenses 31
------------------
SECTION 8.05. Right of Set-off 32
----------------
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
SECTION 8.06. Binding Effect 32
--------------
SECTION 8.07. Assignments and Participations 32
------------------------------
SECTION 8.08. Confidentiality 33
---------------
SECTION 8.09. Governing Law 33
-------------
SECTION 8.10. Execution in Counterparts 34
-------------------------
SECTION 8.11. Jurisdiction, Etc. 34
-----------------
SECTION 8.12. Waiver of Jury Trial 35
--------------------
</TABLE>
iii
<PAGE>
Schedules
- ---------
Schedule I - List of Applicable Lending
Schedule 5.02(a) - Existing Liens
Exhibits
- --------
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Borrower
iv
<PAGE>
Exhibit 10(v)
180-DAY CREDIT AGREEMENT
Dated as of November 2, 2000
INTERNATIONAL FLAVORS & FRAGRANCES INC., a New York corporation (the
"Borrower"), the banks, financial institutions and other institutional lenders
--------
(the "Initial Lenders") listed on the signature pages hereof, and CITIBANK, N.A.
---------------
("Citibank"), as agent (the "Agent"), and SALOMON SMITH BARNEY INC., as
-------- -----
arranger, for the Lenders (as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
---------------------
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" means a Revolving Credit Advance or a Competitive Bid
-------
Advance.
"Affiliate" means, as to any Person, any other Person that, directly
---------
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 5% or more of the
Voting Stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Stock, by contract or otherwise.
"Agent's Account" means the account of the Agent maintained by the
---------------
Agent at Citibank at its office at 399 Park Avenue, New York, New York
10043, Account No. 36852248, Attention: Melissa Hamilton.
"Applicable Lending Office" means, with respect to each Lender, such
-------------------------
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and, in the case of a Competitive Bid Advance, the office of such
Lender notified by such Lender to the Agent as its Applicable Lending
Office with respect to such Competitive Bid Advance.
"Applicable Margin" means (a) for Base Rate Advances, 0% per annum and
-----------------
(b) for Eurodollar Rate Advances as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
<TABLE>
<CAPTION>
-----------------------------------------------------------
Public Debt Rating Applicable Margin for
S&P/Moody's Eurodollar Rate Advances
-----------------------------------------------------------
<S> <C>
Level 1
-------
A+/A1or above 0.295%
-----------------------------------------------------------
Level 2
-------
A/A2 0.430%
-----------------------------------------------------------
Level 3
-------
A-/A3 0.515%
-----------------------------------------------------------
Level 4
-------
BBB+/Baa1 0.635%
-----------------------------------------------------------
Level 5
-------
Lower than Level 4 0.750%
-----------------------------------------------------------
</TABLE>
<PAGE>
provided that, until January 15, 2001, the Applicable Margin shall be
---------------------------------------------------------------------
deemed to be 0.885%.
--------------------
"Applicable Percentage" means, as of any date, a percentage per annum
---------------------
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
<TABLE>
<CAPTION>
---------------------------------------------
Public Debt Rating Applicable
S&P/Moody's Percentage
---------------------------------------------
<S> <C>
Level 1
A+/A1or above 0.050%
---------------------------------------------
Level 2
-------
A/A2 0.070%
---------------------------------------------
Level 3
-------
A-/A3 0.085%
---------------------------------------------
Level 4
-------
BBB+/Baa1 0.115%
----------------------------------------------
Level 5
-------
Lower than Level 4 0.150%
----------------------------------------------
</TABLE>
provided that, until January 15, 2001, the Applicable Percentage shall be
-------------------------------------------------------------------------
determined by reference to Level 4.
----------------------------------
"Applicable Utilization Fee" means, as of any date on or after
--------------------------
January 15, 2001 that the aggregate Advances exceed 33% of the aggregate
Commitments, a percentage per annum determined by reference to the Public
Debt Rating in effect on such date as set forth below:
<TABLE>
<CAPTION>
----------------------------------------------------
Public Debt Rating Applicable
S&P/Moody's Utilization Fee
----------------------------------------------------
<S> <C>
Level 1
--------
A+/A1or above 0.100%
----------------------------------------------------
Level 2
--------
A/A2 0.125%
----------------------------------------------------
Level 3
--------
A-/A3 0.150%
----------------------------------------------------
Level 4
-------
BBB+/Baa1 0.150%
----------------------------------------------------
Level 5
-------
Lower than Level 4 0.200%
----------------------------------------------------
</TABLE>
"Assignment and Acceptance" means an assignment and acceptance entered
-------------------------
into by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit C hereto.
"Base Rate" means a fluctuating interest rate per annum in effect from
---------
time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is no
nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1% per
annum, plus (ii) the rate obtained by dividing (A) the latest three-
----
week moving average of secondary market morning offering rates in the
United States
2
<PAGE>
for three-month certificates of deposit of major United States money
market banks, such three-week moving average (adjusted to the basis of
a year of 360 days) being determined weekly on each Monday (or, if
such day is not a Business Day, on the next succeeding Business Day)
for the three-week period ending on the previous Friday by Citibank on
the basis of such rates reported by certificate of deposit dealers to
and published by the Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the basis of
quotations for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected by
Citibank, by (B) a percentage equal to 100% minus the average of the
daily percentages specified during such three-week period by the Board
of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, but not
limited to, any emergency, supplemental or other marginal reserve
requirement) for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar non-
personal time deposits in the United States, plus (iii) the average
----
during such three-week period of the annual assessment rates estimated
by Citibank for determining the then current annual assessment payable
by Citibank to the Federal Deposit Insurance Corporation (or any
successor) for insuring U.S. dollar deposits of Citibank in the United
States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance denominated in
-----------------
Dollars that bears interest as provided in Section 2.07(a)(i).
"Borrowing" means a Revolving Credit Borrowing or a Competitive Bid
---------
Borrowing.
"Business Day" means a day of the year on which banks are not required
------------
or authorized by law to close in New York City and, if the applicable Business
Day relates to any Eurodollar Rate Advances or LIBO Rate Advances, on which
dealings are carried on in the London interbank market.
"Commitment" means as to any Lender (a) the amount set forth opposite
----------
such Lender's name on the signature pages hereof or (b) if such Lender has
entered into any Assignment and Acceptance, the amount set forth for such Lender
in the Register maintained by the Agent pursuant to Section 8.07(d).
"Competitive Bid Advance" means an advance by a Lender to the Borrower
-----------------------
as part of a Competitive Bid Borrowing resulting from the competitive bidding
procedure described in Section 2.03 and refers to a Fixed Rate Advance or a LIBO
Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
-------------------------
simultaneous Competitive Bid Advances from each of the Lenders whose offer to
make one or more Competitive Bid Advances as part of such borrowing has been
accepted under the competitive bidding procedure described in Section 2.03.
"Competitive Bid Note" means a promissory note of the Borrower payable
--------------------
to the order of any Lender, in substantially the form of Exhibit A-2 hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from a
Competitive Bid Advance made by such Lender.
"Competitive Bid Reduction" has the meaning specified in Section 2.01.
-------------------------
"Confidential Information" means information that the Borrower
------------------------
furnishes to the Agent or any Lender, but does not include any such information
that is or becomes generally available to the public or that is or becomes
available to the Agent or such Lender from a source other than the Borrower.
"Consolidated" refers to the consolidation of accounts in accordance
------------
with GAAP.
"Convert", "Conversion" and "Converted" each refers to a conversion of
------- ---------- ---------
Revolving Credit Advances of one Type into Revolving Credit Advances of the
other Type pursuant to Section 2.08 or 2.09.
3
<PAGE>
"Debt" of any Person means, without duplication, (a) all indebtedness
----
of such Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (other than trade payables not
overdue by more than 60 days incurred in the ordinary course of such Person's
business), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all obligations of such Person
created or arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), (e) all obligations of
such Person as lessee under leases that have been or should be, in accordance
with GAAP, recorded as capital leases, (f) all obligations, contingent or
otherwise, of such Person in respect of acceptances, letters of credit or
similar extensions of credit, (g) all obligations of such Person in respect of
Hedge Agreements, (h) all Debt of others referred to in clauses (a) through (g)
above or clause (i) below guaranteed directly or indirectly in any manner by
such Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (1) to pay or purchase such Debt or to advance or supply
funds for the payment or purchase of such Debt, (2) to purchase, sell or lease
(as lessee or lessor) property, or to purchase or sell services, primarily for
the purpose of enabling the debtor to make payment of such Debt or to assure the
holder of such Debt against loss, (3) to supply funds to or in any other manner
invest in the debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are rendered)
or (4) otherwise to assure a creditor against loss, and (i) all Debt referred to
in clauses (a) through (h) above secured by (or for which the holder of such
Debt has an existing right, contingent or otherwise, to be secured by) any Lien
on property (including, without limitation, accounts and contract rights) owned
by such Person, even though such Person has not assumed or become liable for the
payment of such Debt.
"Debt for Borrowed Money" of a Person means all items that, in
-----------------------
accordance with GAAP, would be classified as indebtedness on a Consolidated
Balance sheet of such Person.
"Default" means any Event of Default or any event that would
-------
constitute an Event of Default but for the requirement that notice be given or
time elapse or both.
"Domestic Lending Office" means, with respect to any Lender, the
-----------------------
office of such Lender specified as its "Domestic Lending Office" opposite its
name on Schedule I hereto or in the Assignment and Acceptance pursuant to which
it became a Lender, or such other office of such Lender as such Lender may from
time to time specify to the Borrower and the Agent.
"EBITDA" means, for any period, net income (or net loss) plus the sum
------ ----
of (a) interest expense, (b) income tax expense, (c) depreciation expense, (d)
amortization expense and all other non-cash charges and (e) extraordinary or
unusual losses deducted in calculating net income less extraordinary or unusual
----
gains added in calculating net income, in each case determined in accordance
with GAAP for such period.
"Effective Date" has the meaning specified in Section 3.01.
--------------
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a Lender;
-----------------
and (iii) any other Person approved by the Agent and, unless an Event of Default
has occurred and is continuing at the time any assignment is effected in
accordance with Section 8.07, the Borrower, such approval not to be unreasonably
withheld or delayed; provided, however, that neither the Borrower nor an
-------- -------
Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand letter,
--------------------
claim, notice of non-compliance or violation, notice of liability or potential
liability, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law, Environmental Permit or Hazardous
Materials or arising from alleged injury or threat of injury to health, safety
or the environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory
4
<PAGE>
authority or any third party for damages, contribution, indemnification, cost
recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
-----------------
statute, law, ordinance, rule, regulation, code, order, judgment, decree or
judicial or agency interpretation, policy or guidance relating to pollution or
protection of the environment, health, safety or natural resources, including,
without limitation, those relating to the use, handling, transportation,
treatment, storage, disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
--------------------
number, license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
---------------
ERISA is a member of the Borrower's controlled group, or under common control
with the Borrower, within the meaning of Section 414 of the Internal Revenue
Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
-----------
within the meaning of Section 4043 of ERISA, with respect to any Plan unless the
30-day notice requirement with respect to such event has been waived by the
PBGC, or (ii) the requirements of subsection (1) of Section 4043(b) of ERISA
(without regard to subsection (2) of such Section) are met with a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event
described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA
is reasonably expected to occur with respect to such Plan within the following
30 days; (b) the application for a minimum funding waiver with respect to a
Plan; (c) the provision by the administrator of any Plan of a notice of intent
to terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan amendment referred to in Section 4041(e) of
ERISA); (d) the cessation of operations at a facility of the Borrower or any
ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e)
the withdrawal by the Borrower or any ERISA Affiliate from a Multiple Employer
Plan during a plan year for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (f) the conditions for the imposition of a lien
under Section 302(f) of ERISA shall have been met with respect to any Plan; (g)
the adoption of an amendment to a Plan requiring the provision of security to
such Plan pursuant to Section 307 of ERISA; or (h) the institution by the PBGC
of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the appointment of a trustee to
administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
------------------------
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
-------------------------
office of such Lender specified as its "Eurodollar Lending Office" opposite its
name on Schedule I hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
---------------
Rate Advance comprising part of the same Revolving Credit Borrowing, an interest
rate per annum equal to the rate per annum obtained by dividing (a) the rate per
annum (rounded upward to the nearest whole multiple of 1/16 of 1% per annum)
appearing on Dow Jones Markets Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits in U.S. dollars at approximately
11:00 A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period or, if for any
reason such rate is not available, the average (rounded upward to the nearest
whole multiple of 1/16 of
5
<PAGE>
1% per annum, if such average is not such a multiple) of the rate per annum at
which deposits in U.S. dollars are offered by the principal office of each of
the Reference Banks in London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before the first day of
such Interest Period in an amount substantially equal to such Reference Bank's
Eurodollar Rate Advance comprising part of such Revolving Credit Borrowing to be
outstanding during such Interest Period and for a period equal to such Interest
Period by (b) a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage for such Interest Period. If the Dow Jones Markets Page 3750 (or any
successor page) is unavailable, the Eurodollar Rate for any Interest Period for
each Eurodollar Rate Advance comprising part of the same Revolving Credit
Borrowing shall be determined by the Agent on the basis of applicable rates
furnished to and received by the Agent from the Reference Banks two Business
Days before the first day of such Interest Period, subject, however, to the
------- -------
provisions of Section 2.08.
"Eurodollar Rate Advance" means a Revolving Credit Advance that bears
-----------------------
interest as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
----------------------------------
Eurodollar Rate Advances or LIBO Rate Advances comprising part of the same
Borrowing means the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time to time by
the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances or LIBO Rate Advances is
determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
-----------------
"Federal Funds Rate" means, for any period, a fluctuating interest
------------------
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Rate Advances" has the meaning specified in Section 2.03(a)(i).
-------------------
"Founder" means (a) each Person who is a beneficial owner (within the
-------
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of 20% or more of the outstanding shares of
Voting Stock of the Borrower on the date hereof or any Person that is or becomes
a fiduciary of any Person who is a beneficial owner of (or any Person for whose
account were held) outstanding shares of Voting Stock of the Borrower on the
date hereof (in any such case, an "Existing Shareholder"), including any group
--------------------
that is comprised solely of Existing Shareholders and (b) any such Existing
Shareholder or group comprised solely of Existing Shareholders who shall become
the beneficial owner of 20% or more of the outstanding shares of Voting Stock of
the Borrower solely as a result of an acquisition by the Borrower of shares of
its Voting Stock, in each case until such time as the Persons or group described
in clause (a) or (b) above shall become the beneficial owner (other than by
means of a stock dividend, stock split, gift or inheritance or receipt or
exercise of, or accrual of any right to exercise, any stock options of shares of
stock granted by the Borrower) of any additional shares of Voting Stock of the
Borrower. In addition, the Borrower, any wholly-owned Subsidiary of the Borrower
and any employee stock ownership or other employee benefit plan of the Borrower
or a wholly-owned Subsidiary of the Borrower shall be a "Founder".
"GAAP" has the meaning specified in Section 1.03.
----
6
<PAGE>
"Hazardous Materials" means (a) petroleum and petroleum products,
-------------------
byproducts or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
----------------
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
"Information Memorandum" means the information memorandum dated
----------------------
October 25, 2000 used by the Agent in connection with the syndication of the
Commitments.
"Interest Period" means, for each Eurodollar Rate Advance comprising
---------------
part of the same Revolving Credit Borrowing and each LIBO Rate Advance
comprising part of the same Competitive Bid Borrowing, the period commencing on
the date of such Eurodollar Rate Advance or LIBO Rate Advance or the date of the
Conversion of any Base Rate Advance into such Eurodollar Rate Advance and ending
on the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, with respect to Eurodollar Rate Advances, each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of each such Interest
Period shall be one, two, three or six months, as the Borrower may, upon notice
received by the Agent not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the first day of such Interest Period, select;
provided, however, that:
- -------- -------
(i) the Borrower may not select any Interest Period that ends
after the Termination Date;
(ii) Interest Periods commencing on the same date for Eurodollar
Rate Advances comprising part of the same Revolving Credit Borrowing
or for LIBO Rate Advances comprising part of the same Competitive Bid
Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would cause
-------- -------
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
---------------------
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Lenders" means the Initial Lenders and each Person that shall become
-------
a party hereto pursuant to Section 8.07.
"LIBO Rate" means, for any Interest Period for all LIBO Rate Advances
---------
comprising part of the same Competitive Bid Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the rate per annum
(rounded upward to the nearest whole multiple of 1/16 of 1% per annum) appearing
on Dow Jones Markets Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in U.S. dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period or, if for any
7
<PAGE>
reason such rate is not available, the average (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum, if such average is not such a multiple)
of the rate per annum at which deposits in U.S. dollars offered by the principal
office of each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period in an amount substantially equal to the amount
that would be the Reference Banks' respective ratable shares of such Borrowing
if such Borrowing were to be a Revolving Credit Borrowing to be outstanding
during such Interest Period and for a period equal to such Interest Period by
(b) a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for
such Interest Period. If the Dow Jones Markets Telerate Page 3750 (or any
successor page) is unavailable, the LIBO Rate for any Interest Period for each
LIBO Rate Advance comprising part of the same Competitive Bid Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to and
received by the Agent from the Reference Banks two Business Days before the
first day of such Interest Period, subject, however, to the provisions of
------- -------
Section 2.08.
"LIBO Rate Advances" means a Competitive Bid Advance bearing interest
------------------
based on the LIBO Rate.
"Lien" means any lien, security interest or other charge or
----
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on title
to real property.
"Material Adverse Change" means any material adverse change in the
-----------------------
business, condition (financial or otherwise) or results of operations of the
Borrower and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
business, condition (financial or otherwise) or results of operations of the
Borrower and its Subsidiaries taken as a whole, (b) the rights and remedies of
the Agent or any Lender under this Agreement or any Note or (c) the ability of
the Borrower to perform its obligations under this Agreement or any Note.
"Merger Agreement" means the Agreement and Plan of Merger, dated as of
----------------
September 25, 2000 among Bush Boake Allen Inc., a Virginia corporation, the
Borrower and B Acquisition Corp., a Virginia corporation and a wholly owned
subsidiary of the Borrower
"Moody's" means Moody's Investors Service, Inc., or any successor by
-------
merger or change of name which is a nationally recognized rating agency.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
------------------
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
----------------------
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and at least one Person other than the Borrower
and the ERISA Affiliates or (b) was so maintained and in respect of which the
Borrower or any ERISA Affiliate could have liability under Section 4064 or 4069
of ERISA in the event such plan has been or were to be terminated.
"Note" means a Revolving Credit Note or a Competitive Bid Note.
----
"Notice of Revolving Credit Borrowing" has the meaning specified in
------------------------------------
Section 2.02(a).
"Notice of Competitive Bid Borrowing" has the meaning specified in
-----------------------------------
Section 2.03(a).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
----
successor).
8
<PAGE>
"Permitted Liens" means such of the following as to which no
---------------
enforcement, collection, execution, levy or foreclosure proceeding shall have
been commenced: (a) Liens for taxes, assessments and governmental charges or
levies to the extent not required to be paid under Section 5.01(b) hereof; (b)
Liens imposed by law, such as materialmen's, mechanics', carriers', workmen's
and repairmen's Liens and other similar Liens arising in the ordinary course of
business securing obligations that are not overdue for a period of more than 30
days; (c) pledges or deposits to secure obligations under workers' compensation
laws or similar legislation or to secure public or statutory obligations; and
(d) easements, rights of way and other encumbrances on title to real property
that do not render title to the property encumbered thereby unmarketable or
materially adversely affect the use of such property for its present purposes.
"Person" means an individual, partnership, corporation (including a
------
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
----
"Public Debt Rating" means, as of any date, the lowest rating that has
------------------
been most recently announced by either S&P or Moody's, as the case may be, for
any class of non-credit enhanced long-term senior unsecured debt issued by the
Borrower. For purposes of the foregoing, (a) if only one of S&P and Moody's
shall have in effect a Public Debt Rating, the Applicable Margin, the Applicable
Percentage and the Applicable Utilization Fee shall be determined by reference
to the available rating; (b) if neither S&P nor Moody's shall have in effect a
Public Debt Rating, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee will be set in accordance with Level 5 under the
definition of "Applicable Margin", "Applicable Percentage" or "Applicable
----------------- --------------------- ----------
Utilization Fee", as the case may be; (c) if the ratings established by S&P and
- ---------------
Moody's shall fall within different levels, the Applicable Margin and the
Applicable Percentage shall be based upon the higher rating; (d) if any rating
established by S&P or Moody's shall be changed, such change shall be effective
as of the date on which such change is first announced publicly by the rating
agency making such change; and (e) if S&P or Moody's shall change the basis on
which ratings are established, each reference to the Public Debt Rating
announced by S&P or Moody's, as the case may be, shall refer to the then
equivalent rating by S&P or Moody's, as the case may be.
"Reference Banks" means Citibank and First Union National Bank.
---------------
"Register" has the meaning specified in Section 8.07(d).
--------
"Required Lenders" means at any time Lenders owed at least a majority
----------------
in interest of the then aggregate unpaid principal amount of the Revolving
Credit Advances owing to Lenders, or, if no such principal amount is then
outstanding, Lenders having at least a majority in interest of the Commitments.
"Revolving Credit Advance" means an advance by a Lender to the
------------------------
Borrower as part of a Revolving Credit Borrowing and refers to a Base Rate
Advance or a Eurodollar Rate Advance (each of which shall be a "Type" of
----
Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
--------------------------
simultaneous Revolving Credit Advances of the same Type made by each of the
Lenders pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of the Borrower
---------------------
payable to the order of any Lender, delivered pursuant to a request made under
Section 2.16 in substantially the form of Exhibit A-1 hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting from the
Revolving Credit Advances made by such Lender.
"S&P" means Standard & Poor's, a division of The McGraw-Hill
---
Companies, Inc., or any successor by merger or change of name which is a
nationally recognized rating agency.
9
<PAGE>
"Single Employer Plan" means a single employer plan, as defined in
--------------------
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and no Person other than the Borrower and the
ERISA Affiliates or (b) was so maintained and in respect of which the Borrower
or any ERISA Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Subsidiary" of any Person means any corporation, partnership, joint
----------
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such limited
liability company, partnership or joint venture or (c) the beneficial interest
in such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Termination Date" means the earlier of (a) April 30, 2001 and (b) the
----------------
date of termination in whole of the Commitments pursuant to Section 2.05 or
6.01.
"Voting Stock" means capital stock issued by a corporation, or
------------
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even if the right so
to vote has been suspended by the happening of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
---------------------------
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
----------------
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP").
----
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender severally
-----------------------------
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances to the Borrower from time to time on any Business Day during the
period from the Effective Date until the Termination Date in an aggregate amount
not to exceed at any time outstanding such Lender's Commitment provided that the
--------
aggregate amount of the Commitments of the Lenders shall be deemed used from
time to time to the extent of the aggregate amount of the Competitive Bid
Advances then outstanding and such deemed use of the aggregate amount of the
Commitments shall be allocated among the Lenders ratably according to their
respective Commitments (such deemed use of the aggregate amount of the
Commitments being a "Competitive Bid Reduction"). Each Revolving Credit
-------------------------
Borrowing shall be in an aggregate amount of $10,000,000 or an integral multiple
of $1,000,000 in excess thereof and shall consist of Revolving Credit Advances
of the same Type made on the same day by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender's Commitment, the
Borrower may borrow under this Section 2.01, prepay pursuant to Section 2.10 and
reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
------------------------------------
Revolving Credit Borrowing shall be made on notice, given not later than (x)
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Eurodollar Rate Advances or (y) 11:00 A.M. (New York
City time) on the date of the proposed Revolving Credit Borrowing in the case of
a Revolving Credit Borrowing consisting of Base Rate Advances, by the Borrower
to the Agent, which shall give to each Lender prompt notice thereof by
telecopier or telex. Each such notice of a Revolving Credit Borrowing (a "Notice
------
of Revolving Credit Borrowing") shall be by telephone, confirmed
- -----------------------------
10
<PAGE>
immediately in writing, or telecopier or telex in substantially the form of
Exhibit B-1 hereto, specifying therein the requested (i) date of such Revolving
Credit Borrowing, (ii) Type of Advances comprising such Revolving Credit
Borrowing, (iii) aggregate amount of such Revolving Credit Borrowing, and (iv)
in the case of a Revolving Credit Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such Revolving Credit Advance. Each
Lender shall, before 12:00 Noon (New York City time) on the date of such
Revolving Credit Borrowing make available for the account of its Applicable
Lending Office to the Agent at the Agent's Account, in same day funds, such
Lender's ratable portion of such Revolving Credit Borrowing. After the Agent's
receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Agent will make such funds available to the Borrower
at the Agent's address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select Eurodollar Rate Advances for any Revolving
Credit Borrowing if the aggregate amount of such Revolving Credit Borrowing is
less than $10,000,000 or if the obligation of the Lenders to make Eurodollar
Rate Advances shall then be suspended pursuant to Section 2.08 or 2.12 and (ii)
the Eurodollar Rate Advances may not be outstanding as part of more than six
separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be irrevocable
and binding on the Borrower. In the case of any Revolving Credit Borrowing that
the related Notice of Revolving Credit Borrowing specifies is to be comprised of
Eurodollar Rate Advances, the Borrower shall indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Notice of Revolving Credit
Borrowing for such Revolving Credit Borrowing the applicable conditions set
forth in Article III, including, without limitation, any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Revolving Credit Advance to be made by such Lender as part of such Revolving
Credit Borrowing when such Revolving Credit Advance, as a result of such
failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender prior
to the date of any Revolving Credit Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such Revolving Credit
Borrowing, the Agent may assume that such Lender has made such portion available
to the Agent on the date of such Revolving Credit Borrowing in accordance with
subsection (a) of this Section 2.02 and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent that such Lender shall not have so made such ratable
portion available to the Agent, such Lender and the Borrower severally agree to
repay to the Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Agent, at (i) in the
case of the Borrower, the interest rate applicable at the time to Revolving
Credit Advances comprising such Revolving Credit Borrowing and (ii) in the case
of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent
such corresponding amount, such amount so repaid shall constitute such Lender's
Revolving Credit Advance as part of such Revolving Credit Borrowing for purposes
of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance to
be made by it as part of any Revolving Credit Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its Revolving Credit
Advance on the date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
----------------------------
severally agrees that the Borrower may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Termination Date
in the manner set forth below; provided that, following the making of each
--------
Competitive Bid Borrowing, the aggregate amount of the Advances then outstanding
shall not exceed the aggregate amount of the Commitments of the Lenders
(computed without regard to any Competitive Bid Reduction).
(i) The Borrower may request a Competitive Bid Borrowing under this
Section 2.03 by delivering to the Agent, by telecopier or telex, a notice
of a Competitive Bid Borrowing (a "Notice of
---------
11
<PAGE>
Competitive Bid Borrowing"), in substantially the form of Exhibit B-2
-------------------------
hereto, specifying therein the requested (v) date of such proposed
Competitive Bid Borrowing, (w) aggregate amount of such proposed
Competitive Bid Borrowing, (x) in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances, Interest Period, or in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances, maturity date
for repayment of each Fixed Rate Advance to be made as part of such
Competitive Bid Borrowing (which maturity date may not be earlier than the
date occurring 30 days after the date of such Competitive Bid Borrowing or
later than the Termination Date), (y) interest payment date or dates
relating thereto, and (z) other terms (if any) to be applicable to such
Competitive Bid Borrowing, not later than 10:00 A.M. (New York City time)
(A) at least one Business Day prior to the date of the proposed Competitive
Bid Borrowing, if the Borrower shall specify in the Notice of Competitive
Bid Borrowing that the rates of interest to be offered by the Lenders shall
be fixed rates per annum (the Advances comprising any such Competitive Bid
Borrowing being referred to herein as "Fixed Rate Advances") and (B) at
-------------------
least four Business Days prior to the date of the proposed Competitive Bid
Borrowing, if the Borrower shall instead specify in the Notice of
Competitive Bid Borrowing that the Advances comprising such Competitive Bid
Borrowing shall be LIBO Rate Advances. Each Notice of Competitive Bid
Borrowing shall be irrevocable and binding on the Borrower. The Agent shall
in turn promptly notify each Lender of each request for a Competitive Bid
Borrowing received by it from the Borrower by sending such Lender a copy of
the related Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more Competitive Bid Advances to the
Borrower as part of such proposed Competitive Bid Borrowing at a rate or
rates of interest specified by such Lender in its sole discretion, by
notifying the Agent (which shall give prompt notice thereof to the
Borrower), (A) before 9:30 A.M. (New York City time) on the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of Fixed Rate Advances and (B) before 10:00 A.M. (New
York City time) three Business Days before the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances of the minimum amount and maximum amount
of each Competitive Bid Advance which such Lender would be willing to make
as part of such proposed Competitive Bid Borrowing (which amounts of such
proposed Competitive Bid may, subject to the proviso to the first sentence
of this Section 2.03(a), exceed such Lender's Commitment, if any), the rate
or rates of interest therefor and such Lender's Applicable Lending Office
with respect to such Competitive Bid Advance; provided that if the Agent in
--------
its capacity as a Lender shall, in its sole discretion, elect to make any
such offer, it shall notify the Borrower of such offer at least 30 minutes
before the time and on the date on which notice of such election is to be
given to the Agent, by the other Lenders. If any Lender shall elect not to
make such an offer, such Lender shall so notify the Agent before 10:00 A.M.
(New York City time), and such Lender shall not be obligated to, and shall
not, make any Competitive Bid Advance as part of such Competitive Bid
Borrowing; provided that the failure by any Lender to give such notice
--------
shall not cause such Lender to be obligated to make any Competitive Bid
Advance as part of such proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, (A) before 10:30 A.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances and
(B) before 11:00 A.M. (New York City time) three Business Days before the
date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by giving the
Agent notice to that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in its sole discretion, by
giving notice to the Agent of the amount of each Competitive Bid
Advance (which amount shall be equal to or greater than the minimum
amount, and equal to or less than the maximum amount, notified to the
Borrower by the Agent on behalf of such Lender for such Competitive
Bid Advance pursuant to paragraph (ii) above) to be made by
12
<PAGE>
each Lender as part of such Competitive Bid Borrowing, and reject any
remaining offers made by Lenders pursuant to paragraph (ii) above by
giving the Agent notice to that effect. The Borrower shall accept the
offers made by any Lender or Lenders to make Competitive Bid Advances
in order of the lowest to the highest rates of interest offered by
such Lenders. If two or more Lenders have offered the same interest
rate, the amount to be borrowed at such interest rate will be
allocated among such Lenders in proportion to the amount that each
such Lender offered at such interest rate.
(iv) If the Borrower notifies the Agent that such Competitive Bid
Borrowing is cancelled pursuant to paragraph (iii)(x) above, the Agent
shall give prompt notice thereof to the Lenders and such Competitive Bid
Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, the Agent shall in
turn promptly notify (A) each Lender that has made an offer as described in
paragraph (ii) above, of the date and aggregate amount of such Competitive
Bid Borrowing and whether or not any offer or offers made by such Lender
pursuant to paragraph (ii) above have been accepted by the Borrower, (B)
each Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing, of the amount of each Competitive Bid Advance to
be made by such Lender as part of such Competitive Bid Borrowing, and (C)
each Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing, upon receipt, that the Agent has received forms
of documents appearing to fulfill the applicable conditions set forth in
Article III. Each Lender that is to make a Competitive Bid Advance as part
of such Competitive Bid Borrowing shall, before 11:00 A.M. (New York City
time) on the date of such Competitive Bid Borrowing specified in the notice
received from the Agent pursuant to clause (A) of the preceding sentence or
any later time when such Lender shall have received notice from the Agent
pursuant to clause (C) of the preceding sentence, make available for the
account of its Applicable Lending Office to the Agent at its address
referred to in Section 8.02, in same day funds, such Lender's portion of
such Competitive Bid Borrowing. Upon fulfillment of the applicable
conditions set forth in Article III and after receipt by the Agent of such
funds, the Agent will make such funds available to the Borrower at the
location specified by the Borrower in its Notice of Competitive Bid
Borrowing. Promptly after each Competitive Bid Borrowing the Agent will
notify each Lender of the amount of the Competitive Bid Borrowing, the
consequent Competitive Bid Reduction and the dates upon which such
Competitive Bid Reduction commenced and will terminate.
(vi) If the Borrower notifies the Agent that it accepts one or more
of the offers made by any Lender or Lenders pursuant to paragraph (iii)(y)
above, such notice of acceptance shall be irrevocable and binding on the
Borrower. The Borrower shall indemnify each Lender against any loss, cost
or expense incurred by such Lender as a result of any failure to fulfill on
or before the date specified in the related Notice of Competitive Bid
Borrowing for such Competitive Bid Borrowing the applicable conditions set
forth in Article III, including, without limitation, any loss (excluding
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Competitive Bid Advance to be made by such Lender as
part of such Competitive Bid Borrowing when such Competitive Bid Advance,
as a result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate amount
of $10,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each Competitive Bid Borrowing, the Borrower shall be in
compliance with the limitation set forth in the proviso to the first sentence of
subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this Section 2.03,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03, provided that a Competitive Bid Borrowing shall not be made within
--------
three Business Days of the date of any other Competitive Bid Borrowing.
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(d) The Borrower shall repay to the Agent for the account of each
Lender that has made a Competitive Bid Advance, on the maturity date of each
Competitive Bid Advance (such maturity date being that specified by the Borrower
for repayment of such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and
provided in the Competitive Bid Note evidencing such Competitive Bid Advance),
the then unpaid principal amount of such Competitive Bid Advance. The Borrower
shall have no right to prepay any principal amount of any Competitive Bid
Advance unless, and then only on the terms, specified by the Borrower for such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above and set forth in the Competitive
Bid Note evidencing such Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid principal amount
of each Competitive Bid Advance from the date of such Competitive Bid Advance to
the date the principal amount of such Competitive Bid Advance is repaid in full,
at the rate of interest for such Competitive Bid Advance specified by the Lender
making such Competitive Bid Advance in its notice with respect thereto delivered
pursuant to subsection (a)(ii) above, payable on the interest payment date or
dates specified by the Borrower for such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above, as provided in the Competitive Bid Note evidencing such Competitive Bid
Advance. Upon the occurrence and during the continuance of an Event of Default
under Section 6.01(a), the Borrower shall pay interest on the amount of unpaid
principal of and interest on each Competitive Bid Advance owing to a Lender,
payable in arrears on the date or dates interest is payable thereon, at a rate
per annum equal at all times to 1% per annum above the rate per annum required
to be paid on such Competitive Bid Advance under the terms of the Competitive
Bid Note evidencing such Competitive Bid Advance unless otherwise agreed in such
Competitive Bid Note.
(f) The indebtedness of the Borrower resulting from each
Competitive Bid Advance made to the Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a separate Competitive Bid Note of the Borrower
payable to the order of the Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to pay
---- ------------
to the Agent for the account of each Lender a facility fee on the aggregate
amount of such Lender's Commitment from the date hereof in the case of each
Initial Lender and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other Lender
until the Termination Date at a rate per annum equal to the Applicable
Percentage, payable in arrears quarterly on the last day of each March, June,
September and December, commencing December 31, 2000, and on the Termination
Date.
(b) Utilization Fee. The Borrower agrees to pay to the Agent
---------------
for the account of each Lender for each date prior to the Termination Date on
which the aggregate outstanding Advances exceed 33% of the Commitments, a fee on
the aggregate amount of the outstanding Advances at a rate per annum equal to
the Applicable Utilization Fee, payable in arrears quarterly on the last day of
each March, June, September and December, commencing December 31, 2000, and on
the Termination Date.
(c) Agent's Fees. The Borrower shall pay to the Agent for its
------------
own account such fees as may from time to time be agreed between the Borrower
and the Agent.
SECTION 2.05. Optional Termination or Reduction of the Commitments.
----------------------------------------------------
The Borrower shall have the right, upon at least three Business Days' notice to
the Agent, to terminate in whole or reduce ratably in part the unused portions
of the respective Commitments of the Lenders, provided that each partial
--------
reduction shall be in the aggregate amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof and provided further that the aggregate
-------- -------
amount of the Commitments of the Lenders shall not be reduced to an amount that
is less than the aggregate principal amount of the Competitive Bid Advances then
outstanding.
SECTION 2.06. Repayment of Revolving Credit Advances. The Borrower
--------------------------------------
shall repay to the Agent for the ratable account of the Lenders on the
Termination Date the aggregate principal amount of the Revolving Credit Advances
then outstanding.
SECTION 2.07. Interest on Revolving Credit Advances. (a) Scheduled
------------------------------------- ---------
Interest. The Borrower shall pay interest on the unpaid principal amount of
- --------
each Revolving Credit Advance owing to each Lender from the
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<PAGE>
date of such Revolving Credit Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving
------------------
Credit Advance is a Base Rate Advance, a rate per annum equal at all times
to the sum of (x) the Base Rate in effect from time to time plus (y) the
----
Applicable Margin in effect from time to time, payable in arrears quarterly
on the last day of each March, June, September and December during such
periods and on the date such Base Rate Advance shall be Converted or paid
in full.
(ii) Eurodollar Rate Advances. During such periods as such
------------------------
Revolving Credit Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving Credit
Advance to the sum of (x) the Eurodollar Rate for such Interest Period for
such Revolving Credit Advance plus (y) the Applicable Margin in effect from
----
time to time, payable in arrears on the last day of such Interest Period
and, if such Interest Period has a duration of more than three months, on
each day that occurs during such Interest Period every three months from
the first day of such Interest Period and on the date such Eurodollar Rate
Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
----------------
continuance of an Event of Default under Section 6.01(a), the Borrower shall pay
interest on (i) the unpaid principal amount of each Revolving Credit Advance
owing to each Lender, payable in arrears on the dates referred to in clause
(a)(i) or (a)(ii) above, at a rate per annum equal at all times to 1% per annum
above the rate per annum required to be paid on such Revolving Credit Advance
pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest extent
permitted by law, the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 1% per annum above the rate per annum required to be paid on Base Rate
Advances pursuant to clause (a)(i) above.
SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank
---------------------------
agrees to furnish to the Agent timely information for the purpose of determining
each Eurodollar Rate and each LIBO Rate. If any one or more of the Reference
Banks shall not furnish such timely information to the Agent for the purpose of
determining any such interest rate, the Agent shall determine such interest rate
on the basis of timely information furnished by the remaining Reference Banks.
The Agent shall give prompt notice to the Borrower and the Lenders of the
applicable interest rate determined by the Agent for purposes of Section
2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference Bank for
the purpose of determining the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the Required
Lenders notify the Agent that the Eurodollar Rate for any Interest Period for
such Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Borrower and the
Lenders, whereupon (i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance, and (ii) the obligation of the Lenders to make, or to Convert Revolving
Credit Advances into, Eurodollar Rate Advances shall be suspended until the
Agent shall notify the Borrower and the Lenders that the circumstances causing
such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify the Borrower and the Lenders and such Advances
will automatically, on the last day of the then existing Interest Period
therefor, be Converted into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $10,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default under Section 6.01(a), (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest
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<PAGE>
Period therefor, Convert into a Base Rate Advance and (ii) the obligation of the
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
(f) If Dow Jones Markets Telerate Page 3750 is unavailable and
fewer than two Reference Banks furnish timely information to the Agent for
determining the Eurodollar Rate or LIBO Rate for any Eurodollar Rate Advances or
LIBO Rate Advances, as the case may be,
(i) the Agent shall forthwith notify the Borrower and the Lenders
that the interest rate cannot be determined for such Eurodollar Rate
Advances or LIBO Rate Advances, as the case may be,
(ii) with respect to Eurodollar Rate Advances, each such Advance
will automatically, on the last day of the then existing Interest Period
therefor, be prepaid by the Borrower or be automatically Converted into a
Base Rate Advance (or if such Advance is then a Base Rate Advance, will
continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate Advances
or LIBO Rate Advances or to Convert Revolving Credit Advances into
Eurodollar Rate Advances shall be suspended until the Agent shall notify
the Borrower and the Lenders that the circumstances causing such suspension
no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit Advances. The
------------------------------------------------
Borrower may on any Business Day, upon notice given to the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections 2.08 and 2.12,
Convert all Revolving Credit Advances of one Type comprising the same Borrowing
into Revolving Credit Advances of the other Type; provided, however, that any
-------- -------
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(b) and no
Conversion of any Revolving Credit Advances shall result in more separate
Revolving Credit Borrowings than permitted under Section 2.02(b). Each such
notice of a Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Revolving Credit Advances to be
Converted, and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for each such Advance. Each notice of
Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.10. Prepayments of Revolving Credit Advances. The Borrower
----------------------------------------
may, upon notice at least two Business Days' prior to the date of such
prepayment, in the case of Eurodollar Rate Advances, and not later than 11:00
A.M. (New York City time) on the date of such prepayment, in the case of Base
Rate Advances, to the Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the Borrower shall, prepay
the outstanding principal amount of the Revolving Credit Advances comprising
part of the same Revolving Credit Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that (x) each partial prepayment shall be in
-------- -------
an aggregate principal amount of $10,000,000 or an integral multiple of
$1,000,000 in excess thereof and (y) in the event of any such prepayment of a
Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 8.04(c).
SECTION 2.11. Increased Costs. (a) If after the date hereof, due to
---------------
either (i) the introduction of or any change in or in the interpretation of any
law or regulation or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the force of
law), there shall be any increase in the cost to any Lender of agreeing to make
or making, funding or maintaining Eurodollar Rate Advances or LIBO Rate Advances
(excluding for purposes of this Section 2.11 any such increased costs resulting
from (i) Taxes or Other Taxes (as to which Section 2.14 shall govern) and (ii)
changes in the basis of taxation of overall net income or overall gross income
by the United States or by the foreign jurisdiction or state under the laws of
which such Lender is organized or has its Applicable Lending Office or any
political subdivision thereof), then the Borrower shall from time to time, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts sufficient to compensate
such Lender for such
16
<PAGE>
increased cost. A certificate as to the amount of such increased cost, submitted
to the Borrower and the Agent by such Lender, shall be conclusive and binding
for all purposes, absent manifest error.
(b) If after the date hereof any Lender determines that compliance
with any law or regulation or any guideline or request from any central bank or
other governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend hereunder and other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Agent), the Borrower shall pay to the
Agent for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder. A certificate as to such amounts
submitted to the Borrower and the Agent by such Lender shall be conclusive and
binding for all purposes, absent manifest error.
SECTION 2.12. Illegality. Notwithstanding any other provision of
----------
this Agreement, if any Lender shall notify the Agent that the introduction of or
any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, (a) each Eurodollar Rate Advance will
automatically, upon such demand, Convert into a Base Rate Advance and (b) the
obligation of the Lenders to make Eurodollar Rate Advances or LIBO Rate Advances
or to Convert Revolving Credit Advances into Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) The Borrower shall
-------------------------
make each payment hereunder not later than 11:00 A.M. (New York City time) on
the day when due to the Agent at the Agent's Account in same day funds. The
Agent will promptly thereafter cause to be distributed like funds relating to
the payment of principal or interest or facility fees ratably (other than
amounts payable pursuant to Section 2.03, 2.11, 2.14 or 8.04(c)) to the Lenders
for the account of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Lender to such Lender
for the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under the
Note held by such Lender, to charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate shall be
made by the Agent on the basis of a year of 365 or 366 days, as the case may be,
all computations of interest based on the Eurodollar Rate, the LIBO Rate or the
Federal Funds Rate or in respect of Fixed Rate Advances and of fees shall be
made by the Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or facility fees are payable.
Each determination by the Agent of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee, as
the case may be; provided, however, that, if such extension would cause payment
-------- -------
of interest on or principal of Eurodollar Rate Advances or LIBO Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
17
<PAGE>
(e) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the Borrower
-----
hereunder or under the Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Agent, taxes
---------
imposed on its overall net income, and franchise taxes imposed on it in lieu of
net income taxes, by the jurisdiction under the laws of which such Lender or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction
of such Lender's Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law
-----
to deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Lender or the Agent, (i) the sum payable shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.14) such Lender or
the Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, the Borrower shall pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, performing under, or otherwise
with respect to, this Agreement or the Notes (hereinafter referred to as "Other
-----
Taxes").
- -----
(c) The Borrower shall indemnify each Lender and the Agent for and
hold it harmless against the full amount of Taxes or Other Taxes (including,
without limitation, taxes of any kind imposed by any jurisdiction on amounts
payable under this Section 2.14) imposed on or paid by such Lender or the Agent
(as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. This indemnification shall
be made within 30 days from the date such Lender or the Agent (as the case may
be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent, at its address referred to in Section 8.02,
the original or a certified copy of a receipt evidencing such payment. In the
case of any payment hereunder or under the Notes by or on behalf of the Borrower
through an account or branch outside the United States or by or on behalf of the
Borrower by a payor that is not a United States person, if the Borrower
determines that no Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Agent, at such address, an
opinion of counsel reasonably acceptable to the Agent stating that such payment
is exempt from Taxes. For purposes of this subsection (d) and subsection (e),
the terms "United States" and "United States person" shall have the meanings
------------- --------------------
specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assignment
and Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter as requested in writing by the Borrower
(but only so long as such Lender remains lawfully able to do so), shall provide
each of the Agent and the Borrower with two original Internal Revenue Service
forms W-8BEN or W-8EC1, as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender is
exempt from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes. If the form provided by a
Lender at the time such Lender first
18
<PAGE>
becomes a party to this Agreement indicates a United States interest withholding
tax rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes unless and until such Lender provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
form; provided, however, that, if at the date of the Assignment and Acceptance
-------- -------
pursuant to which a Lender assignee becomes a party to this Agreement, the
Lender assignor was entitled to payments under subsection (a) in respect of
United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to the
Lender assignee on such date. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date hereof
by Internal Revenue Service form 1001 or 4224, that the Lender reasonably
considers to be confidential, the Lender shall give notice thereof to the
Borrower and shall not be obligated to include in such form or document such
confidential information.
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section 2.14(e)
(other than if such failure is due to a change in law occurring subsequent to
----- ----
the date on which a form originally was required to be provided, or if such form
otherwise is not required under subsection (e) above), such Lender shall not be
entitled to indemnification under Section 2.14(a) or (c) with respect to Taxes
imposed by the United States by reason of such failure; provided, however, that
-------- -------
should a Lender become subject to Taxes because of its failure to deliver a form
required hereunder, the Borrower shall take such steps as the Lender shall
reasonably request to assist the Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts payable pursuant to
this Section 2.14 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurodollar Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain
------------------------
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Revolving Credit Advances owing to
it (other than pursuant to Section 2.11, 2.14 or 8.04(c)) in excess of its
ratable share of payments on account of the Revolving Credit Advances obtained
by all the Lenders, such Lender shall forthwith purchase from the other Lenders
such participations in the Revolving Credit Advances owing to them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
-------- -------
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.16. Evidence of Debt. (a) Each Lender shall maintain in
----------------
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Revolving Credit
Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder in respect of Revolving Credit Advances. The Borrower agrees that upon
notice by any Lender to the Borrower (with a copy of such notice to the Agent)
to the effect that a Revolving Credit Note is required or appropriate in order
for such Lender to evidence (whether for purposes of pledge, enforcement or
otherwise) the Revolving Credit Advances owing to, or to be made by, such
Lender, the Borrower shall promptly execute and deliver to such Lender a
Revolving Credit Note payable to the order of such Lender in a principal amount
up to the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section
8.07(d) shall include a control account, and a subsidiary account for each
Lender, in which accounts (taken together) shall be recorded (i) the date
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<PAGE>
and amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii)
the terms of each Assignment and Acceptance delivered to and accepted by it,
(iii) the amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender hereunder and (iv) the amount of
any sum received by the Agent from the Borrower hereunder and each Lender's
share thereof.
(c) Entries made in good faith by the Agent in the Register
pursuant to subsection (b) above, and by each Lender in its account or accounts
pursuant to subsection (a) above, shall be prima facie evidence of the amount of
----- -----
principal and interest due and payable or to become due and payable from the
Borrower to, in the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Agent or such Lender to make an
- -------- -------
entry, or any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the obligations of the
Borrower under this Agreement.
SECTION 2.17. Use of Proceeds. The proceeds of the Advances shall be
---------------
available (and the Borrower agrees that it shall use such proceeds) for the
acquisition of the common stock of Bush Boake Allen Inc., a Virginia
corporation, pursuant to the Merger Agreement and for other general corporate
purposes of the Borrower and its Subsidiaries, including commercial paper
backstop.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01
------------------------------------------------------
and 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on
- --------
and as of the first date (the "Effective Date") on which the following
conditions precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 1999.
(b) There shall exist no action, suit, investigation, litigation
or proceeding affecting the Borrower or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i)
could be reasonably likely to have a Material Adverse Effect or (ii)
purports to affect the legality, validity or enforceability of this
Agreement or any Note or the consummation of the transactions contemplated
hereby.
(c) Nothing shall have come to the attention of the Lenders during
the course of their due diligence investigation to lead them to believe
that the Information Memorandum was or has become misleading, incorrect or
incomplete in any material respect; without limiting the generality of the
foregoing, the Lenders shall have been given such access to the management,
records, books of account, contracts and properties of the Borrower and its
Subsidiaries as they shall have requested.
(d) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are not
acceptable to the Lenders) and shall remain in effect, and no law or
regulation shall be applicable in the reasonable judgment of the Lenders
that restrains, prevents or imposes materially adverse conditions upon the
transactions contemplated hereby.
(e) The Borrower shall have notified each Lender and the Agent in
writing as to the proposed Effective Date.
(f) The Borrower shall have paid all accrued fees and expenses of
the Agent and the Lenders (including the accrued fees and expenses of
counsel to the Agent).
20
<PAGE>
(g) On the Effective Date, the following statements shall be
true and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Borrower, dated the
Effective Date, stating that:
(i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a
Default.
(h) The Agent shall have received on or before the Effective Date the
following, each dated such day, in form and substance satisfactory to the
Agent and (except for the Revolving Credit Notes) in sufficient copies for
each Lender:
(i) The Revolving Credit Notes to the order of the Lenders to
the extent requested by any Lender pursuant to Section 2.16.
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement and the Notes, and
of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and the
Notes.
(iii) A certificate of the Secretary or an Assistant Secretary
of the Borrower certifying the names and true signatures of the
officers of the Borrower authorized to sign this Agreement and the
Notes and the other documents to be delivered hereunder.
(iv) A favorable opinion of Stephen A. Block, Senior Vice
President and General Counsel, counsel for the Borrower, substantially
in the form of Exhibit D hereto and as to such other matters as any
Lender through the Agent may reasonably request.
(v) A favorable opinion of Shearman & Sterling, counsel for the
Agent, in form and substance satisfactory to the Agent.
(i) The Minimum Condition (as defined in the Merger Agreement) shall
have been satisfied and the applicable waiting period under the Hart-Scott
Rodino Antitrust Improvements Act of 1976 has expired or terminated.
SECTION 3.02. Conditions Precedent to Each Revolving Credit
---------------------------------------------
Borrowing. The obligation of each Lender to make a Revolving Credit Advance on
- ---------
the occasion of each Revolving Credit Borrowing shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the date
of such Revolving Credit Borrowing the (a) the following statements shall be
true (and each of the giving of the applicable Notice of Revolving Credit
Borrowing and the acceptance by the Borrower of the proceeds of such Revolving
Credit Borrowing shall constitute a representation and warranty by the Borrower
that on the date of such Borrowing such statements are true):
(i) the representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection
(e) thereof and in subsection (f)(i) thereof) are correct on and as of such
date, before and after giving effect to such Revolving Credit Borrowing,
and to the application of the proceeds therefrom, as though made on and as
of such date, and
(ii) no event has occurred and is continuing, or would result from
such Revolving Credit Borrowing or from the application of the proceeds
therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
21
<PAGE>
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing.
------------------------------------------------------
The obligation of each Lender that is to make a Competitive Bid Advance on the
occasion of a Competitive Bid Borrowing to make such Competitive Bid Advance as
part of such Competitive Bid Borrowing is subject to the conditions precedent
that (a) the Agent shall have received the written confirmatory Notice of
Competitive Bid Borrowing with respect thereto, (b) on or before the date of
such Competitive Bid Borrowing, but prior to such Competitive Bid Borrowing, the
Agent shall have received a Competitive Bid Note payable to the order of such
Lender for each of the one or more Competitive Bid Advances to be made by such
Lender as part of such Competitive Bid Borrowing, in a principal amount equal to
the principal amount of the Competitive Bid Advance to be evidenced thereby and
otherwise on such terms as were agreed to for such Competitive Bid Advance in
accordance with Section 2.03, and (c) on the date of such Competitive Bid
Borrowing the following statements shall be true (and each of the giving of the
applicable Notice of Competitive Bid Borrowing and the acceptance by the
Borrower of the proceeds of such Competitive Bid Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such Competitive
Bid Borrowing such statements are true):
(i) the representations and warranties contained in Section 4.01 are
correct on and as of the date of such Competitive Bid Borrowing, before and
after giving effect to such Competitive Bid Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date, and
(ii) no event has occurred and is continuing, or would result from
such Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
SECTION 3.04. Determinations Under Section 3.01. For purposes of
---------------------------------
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
----------------------------------------------
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of New York.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the Notes to be delivered by it, and the consummation of the
transactions contemplated hereby, are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate action, and do
not contravene (i) the Borrower's charter or by-laws or (ii) law or any
contractual restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
the Borrower of this Agreement or the Notes to be delivered by it.
(d) This Agreement has been, and each of the Notes to be delivered by
it when delivered hereunder will have been, duly executed and delivered by
the Borrower. This Agreement is, and each of the Notes when delivered
hereunder will be, the legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with their respective terms.
22
<PAGE>
(e) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 1999, and the related Consolidated
statements of income and cash flows of the Borrower and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of
PricewaterhouseCoopers LLP, independent public accountants, and the
Consolidated balance sheet of the Borrower and its Subsidiaries as at
September 30, 2000, and the related Consolidated statements of income and
cash flows of the Borrower and its Subsidiaries for the nine months then
ended, duly certified by the chief financial officer of the Borrower,
copies of which have been furnished to each Lender, fairly present subject,
in the case of said balance sheet as at September 30, 2000 and said
statements of income and cash flows for the nine months then ended, to
year-end audit adjustments, the Consolidated financial condition of the
Borrower and its Subsidiaries as at such dates and the Consolidated results
of the operations of the Borrower and its Subsidiaries for the periods
ended on such date, all in accordance with generally accepted accounting
principles consistently applied. Since December 31, 1999, there has been
no Material Adverse Change.
(f) There is no pending or threatened action, suit, investigation,
litigation or proceeding, including, without limitation, any Environmental
Action, affecting the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) could be reasonably likely to
have a Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(g) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the meaning
of Regulation U issued by the Board of Governors of the Federal Reserve
System), and no proceeds of any Advance will be used to purchase or carry
any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
(h) The Borrower is not an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
---------------------
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
-------------------------
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA and Environmental Laws.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
---------------------
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful claims that, if unpaid, might
by law become a Lien upon its property; provided, however, that neither the
-------- -------
Borrower nor any of its Subsidiaries shall be required to pay or discharge
any such tax, assessment, charge or claim that is being contested in good
faith and by proper proceedings and as to which appropriate reserves are
being maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its
------------------------
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks
as is usually carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which the Borrower or such
Subsidiary operates; provided, however, that the Borrower and its
-------- -------
Subsidiaries may self-insure to the same extent as other companies engaged
in similar businesses and owning similar properties in the same general
areas in which the Borrower or such Subsidiary operates and to the extent
consistent with prudent business practice.
23
<PAGE>
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
----------------------------------------
and cause each of its Subsidiaries to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises; provided,
--------
however, that the Borrower and its Subsidiaries may consummate any merger
-------
or consolidation permitted under Section 5.02(b) and provided further that
-------- -------
neither the Borrower nor any of its Subsidiaries shall be required to
preserve any right or franchise or, in the case of any Subsidiary, its
corporate existence, if the Board of Directors of the Borrower shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Borrower, and that the loss thereof is not
disadvantageous in any material respect to the Borrower or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to time,
-----------------
permit the Agent or any of the Lenders or any agents or representatives
thereof, to examine and make copies of and abstracts from the records and
books of account of, and visit the properties of, the Borrower and any of
its Subsidiaries, and to discuss the affairs, finances and accounts of the
Borrower and any of its Subsidiaries with any of their officers or
directors and with their independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to
----------------
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of
the Borrower and each such Subsidiary in accordance with generally accepted
accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause
------------------------------
each of its Subsidiaries to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
(h) Reporting Requirements. Furnish to the Lenders:
----------------------
(i) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, the Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such quarter and Consolidated statements
of income and cash flows of the Borrower and its Subsidiaries for the
period commencing at the end of the previous fiscal year and ending
with the end of such quarter, duly certified (subject to year-end
audit adjustments) by the chief financial officer of the Borrower as
having been prepared in accordance with generally accepted accounting
principles and certificates of the chief financial officer of the
Borrower as to compliance with the terms of this Agreement and setting
forth in reasonable detail the calculations necessary to demonstrate
compliance with Section 5.03, provided that in the event of any change
--------
in GAAP used in the preparation of such financial statements, the
Borrower shall also provide, if necessary for the determination of
compliance with Section 5.03, a statement of reconciliation conforming
such financial statements to GAAP;
(ii) as soon as available and in any event within 90 days after
the end of each fiscal year of the Borrower, a copy of the annual
audit report for such year for the Borrower and its Subsidiaries,
containing the Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such fiscal year and Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for such fiscal year, in each case accompanied by an
opinion acceptable to the Required Lenders by PricewaterhouseCoopers
LLP or other "Big Five" independent public accountants, provided that
--------
in the event of any change in GAAP used in the preparation of such
financial statements, the Borrower shall also provide, if necessary
for the determination of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to GAAP;
(iii) as soon as possible and in any event within five days
after the occurrence of each Default continuing on the date of such
statement, a statement of the chief financial officer of the Borrower
setting forth details of such Default and the action that the Borrower
has taken and proposes to take with respect thereto;
24
<PAGE>
(iv) promptly after the sending or filing thereof, copies of all
reports that the Borrower sends to any of its securityholders, and
copies of all reports and registration statements that the Borrower or
any Subsidiary files with the Securities and Exchange Commission or
any national securities exchange;
(v) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the Borrower or any of its Subsidiaries of the
type described in Section 4.01(f); and
(vi) such other information respecting the Borrower or any of its
Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
SECTION 5.02. Negative Covenants. So long as any Advance shall
------------------
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
----------
Subsidiaries to create or suffer to exist, any Lien on or with respect to
any of its properties, whether now owned or hereafter acquired, or assign,
or permit any of its Subsidiaries to assign, any right to receive income,
other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real property or
equipment acquired or held by the Borrower or any Subsidiary in the
ordinary course of business to secure the purchase price of such
property or equipment or to secure Debt incurred solely for the
purpose of financing the acquisition of such property or equipment, or
Liens existing on such property or equipment at the time of its
acquisition (other than any such Liens created in contemplation of
such acquisition that were not incurred to finance the acquisition of
such property) or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount, provided, however, that no
-------- -------
such Lien shall extend to or cover any properties of any character
other than the real property or equipment being acquired, and no such
extension, renewal or replacement shall extend to or cover any
properties not theretofore subject to the Lien being extended, renewed
or replaced, provided further that the aggregate principal amount of
-------- -------
the indebtedness secured by the Liens referred to in this clause (ii)
shall not exceed $25,000,000 at any time outstanding,
(iii) the Liens existing on the Effective Date and described on
Schedule 5.02(a) hereto,
(iv) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Borrower or any
Subsidiary of the Borrower or becomes a Subsidiary of the Borrower;
provided that such Liens were not created in contemplation of such
--------
merger, consolidation or acquisition and do not extend to any assets
other than those of the Person so merged into or consolidated with the
Borrower or such Subsidiary or acquired by the Borrower or such
Subsidiary,
(v) other Liens securing Debt in an aggregate principal amount
not to exceed $100,000,000 at any time outstanding, and
(vi) the replacement, extension or renewal of any Lien permitted
by clause (iii) or (iv) above upon or in the same property theretofore
subject thereto or the replacement, extension or renewal (without
increase in the amount or change in any direct or contingent obligor)
of the Debt secured thereby.
(b) Mergers, Etc. Merge or consolidate with or into, or convey,
------------
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of the assets
25
<PAGE>
(whether now owned or hereafter acquired) of the Borrower and its
Subsidiaries, taken as a whole, to, any Person, or permit any of its
Subsidiaries to do so, except that any Subsidiary of the Borrower may merge
or consolidate with or into, or dispose of assets to, any other Subsidiary
of the Borrower, and except that any Subsidiary of the Borrower may merge
into or dispose of assets to the Borrower and the Borrower may merge with
any other Person so long as the Borrower is the surviving corporation,
provided, in each case, that no Default shall have occurred and be
--------
continuing at the time of such proposed transaction or would result
therefrom.
(c) Accounting Changes. Make or permit, or permit any of its
------------------
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by generally accepted
accounting principles.
(d) Change in Nature of Business. Make, or permit any of its
----------------------------
Subsidiaries to make, any material change in the nature of its business as
carried on at the date hereof.
(e) Subsidiary Debt. Permit any of its Subsidiaries to create or
---------------
suffer to exist, any Debt other than:
(i) Debt owed to the Borrower or to a wholly owned Subsidiary
of the Borrower,
(ii) Debt aggregating for all of the Borrower's Subsidiaries not
more than $400,000,000 at any one time outstanding, and
(iii) indorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business.
SECTION 5.03. Financial Covenant. So long as any Advance shall
------------------
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will maintain a ratio of Debt for Borrowed Money as at the end of each fiscal
quarter ending in the periods set forth below to EBITDA for the period of four
fiscal quarters then ended of not more than the ratios indicated below:
<TABLE>
<CAPTION>
FISCAL QUARTER ENDING RATIO
- -----------------------------------------------------------------------------------------
<S> <C>
December 31, 2000 3.65:1.0
- -----------------------------------------------------------------------------------------
March 31, 2001 3.55:1.0
- -----------------------------------------------------------------------------------------
June 30, 2001 3.45:1.0
- -----------------------------------------------------------------------------------------
September 30, 2001 and thereafter 3.25:1.0
- -----------------------------------------------------------------------------------------
</TABLE>
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
-----------------
("Events of Default") shall occur and be continuing:
-----------------
(a) The Borrower shall fail to pay any principal of any Advance when
the same becomes due and payable; or the Borrower shall fail to pay any
interest on any Advance or make any other payment of fees or other amounts
payable under this Agreement or any Note within three Business Days after
the same becomes due and payable; or
26
<PAGE>
(b) Any representation or warranty made by the Borrower herein or by
the Borrower (or any of its officers) in connection with this Agreement
shall prove to have been incorrect in any material respect when made; or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d), (e) or (h), 5.02 or
5.03, or (ii) the Borrower shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement on its part to be
performed or observed if such failure shall remain unremedied for 10 days
after written notice thereof shall have been given to the Borrower by the
Agent or any Lender; or
(d) The Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal or notional amount of at least $25,000,000 in the aggregate (but
excluding Debt outstanding hereunder) of the Borrower or such Subsidiary
(as the case may be), when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Debt; or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall continue after
the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt; or any such Debt
shall be declared to be due and payable, or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem, purchase
or defease such Debt shall be required to be made, in each case prior to
the stated maturity thereof; or
(e) The Borrower or any of its Subsidiaries shall generally not pay
its debts as such debts become due, or shall admit in writing its inability
to pay its debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or against
the Borrower or any of its Subsidiaries seeking to adjudicate it a bankrupt
or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official for
it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 30 days, or
any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of
a receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Borrower or any of
its Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (e); or
(f) Judgments or orders for the payment of money in excess of
$25,000,000 in the aggregate shall be rendered against the Borrower or any
of its Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall
be any period of 20 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; provided, however, that any such judgment or order shall
-------- -------
not be an Event of Default under this Section 6.01(f) if and for so long as
(i) the amount of such judgment or order is covered by a valid and binding
policy of insurance between the defendant and the insurer covering payment
thereof and (ii) such insurer, which shall be rated at least "A" by A.M.
Best Company, has been notified of, and has not disputed the claim made for
payment of, the amount of such judgment or order; or
(g) (i) Any Person or two or more Persons acting in concert (other
than any Founder) shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934), directly or indirectly, of Voting Stock
of the Borrower (or other securities convertible into such Voting Stock)
representing 20% or more of the combined voting power of all Voting Stock
of the Borrower; or (ii) during any period of up to 24 consecutive months,
commencing before or after the date of this Agreement, individuals who at
the
27
<PAGE>
beginning of such 24-month period were directors of the Borrower shall
cease for any reason (other than due to death or disability) to constitute
a majority of the board of directors of the Borrower (except to the extent
that individuals who at the beginning of such 24-month period were replaced
by individuals (x) elected by a majority of the remaining members of the
board of directors of the Borrower or (y) nominated for election by a
majority of the remaining members of the board of directors of the Borrower
and thereafter elected as directors by the shareholders of the Borrower);
or (iii) any Person or two or more Persons acting in concert (other than
any Founder) shall have acquired by contract or otherwise, or shall have
entered into a contract or arrangement that, upon consummation, will result
in its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies of the
Borrower; or
(h) The Borrower or any of its ERISA Affiliates shall incur, or shall
be reasonably likely to incur liability in excess of $25,000,000 in the
aggregate as a result of one or more of the following: (i) the occurrence
of any ERISA Event; (ii) the partial or complete withdrawal of the Borrower
or any of its ERISA Affiliates from a Multiemployer Plan; or (iii) the
reorganization or termination of a Multiemployer Plan;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; provided, however, that in the
-------- -------
event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the Advances, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints
------------------------
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall not be
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required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by the Borrower pursuant to
the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any of
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its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the Lender that made any Advance as the holder of the Debt resulting therefrom
until the Agent receives and accepts an Assignment and Acceptance entered into
by such Lender, as assignor, and an Eligible Assignee, as assignee, as provided
in Section 8.07; (ii) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (iv) shall not have any
duty to ascertain or to inquire as to the performance or observance of
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any of the terms, covenants or conditions of this Agreement on the part of the
Borrower or to inspect the property (including the books and records) of the
Borrower; (v) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of this Agreement by acting
upon any notice, consent, certificate or other instrument or writing (which may
be by telecopier, telegram or telex) believed by it to be genuine and signed or
sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
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Commitment, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if Citibank were not
the Agent and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that
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it has, independently and without reliance upon the Agent or any other Lender
and based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the
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Agent (to the extent not reimbursed by the Borrower), ratably according to the
respective principal amounts of the Revolving Credit Advances then owed to each
of them (or if no Revolving Credit Advances are at the time outstanding, ratably
according to the respective amounts of their Commitments), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the Agent in
any way relating to or arising out of this Agreement or any action taken or
omitted by the Agent under this Agreement (collectively, the "Indemnified
-----------
Costs"), provided that no Lender shall be liable for any portion of the
- ----- --------
Indemnified Costs resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Agent promptly upon demand for its ratable share of any out-of-
pocket expenses (including reasonable counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by the Borrower. In the case of any investigation,
litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05
applies whether any such investigation, litigation or proceeding is brought by
the Agent, any Lender or a third party.
SECTION 7.06. Successor Agent. The Agent may resign at any time by
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giving written notice thereof to the Lenders and the Borrower and may be removed
at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent, provided that, so long as no Default has occurred and is
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continuing, the Borrower shall have the right to consent to such successor Agent
(which consent shall not be unreasonably withheld or delayed) . If no successor
Agent shall have been so appointed by the Required Lenders, and shall have
accepted such appointment, within 30 days after the retiring Agent's giving of
notice of resignation or the Required Lenders' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Lenders, appoint a successor
Agent, which shall be a commercial bank organized under the laws of the United
States of America or of any State thereof and having a combined capital and
surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring
Agent's resignation or removal hereunder as Agent, the provisions of this
Article VII shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement.
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SECTION 7.07. Other Agents. Each Lender hereby acknowledges that
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neither any co-agent nor any other Lender designated as any "Agent" on the
signature pages hereof has any liability hereunder other than in its capacity as
a Lender.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
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provision of this Agreement or the Revolving Credit Notes, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
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or consent shall, unless in writing and signed by all the Lenders, do any of the
following: (a) waive any of the conditions specified in Section 3.01, (b)
increase the Commitments of the Lenders or subject the Lenders to any additional
obligations, (c) reduce the principal of, or interest on, the Revolving Credit
Advances or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Revolving Credit
Advances or any fees or other amounts payable hereunder, (e) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Revolving Credit Advances, or the number of Lenders, that shall be required for
the Lenders or any of them to take any action hereunder or (f) amend this
Section 8.01; and provided further that no amendment, waiver or consent shall,
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unless in writing and signed by the Agent in addition to the Lenders required
above to take such action, affect the rights or duties of the Agent under this
Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other communications
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provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication) and mailed, telecopied, telegraphed, telexed or delivered,
if to the Borrower, at its address at 521 West 57th Street, New York, New York
10019, Attention: Treasurer, with a copy to Corporate Secretary; if to any
Initial Lender, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; if to any other Lender, at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it became a Lender;
and if to the Agent, at its address at Two Penns Way, New Castle, Delaware
19720, Attention: Bank Loan Syndications Department; or, as to the Borrower or
the Agent, at such other address as shall be designated by such party in a
written notice to the other parties and, as to each other party, at such other
address as shall be designated by such party in a written notice to the Borrower
and the Agent. All such notices and communications shall, when mailed,
telecopied, telegraphed or telexed, be effective when deposited in the mails,
telecopied, delivered to the telegraph company or confirmed by telex
answerback, respectively, except that notices and communications to the Agent
pursuant to Article II, III or VII shall not be effective until received by the
Agent. Delivery by telecopier of an executed counterpart of any amendment or
waiver of any provision of this Agreement or the Notes or of any Exhibit hereto
to be executed and delivered hereunder shall be effective as delivery of a
manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
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Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on
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demand all costs and expenses of the Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Agent with respect thereto and with respect
to advising the Agent as to its rights an