Amendment to Lilly Industries, Inc. Executive Retirement Plan (May 11, 2000)

Summary

This amendment updates the Lilly Industries, Inc. Executive Retirement Plan, effective May 11, 2000. It revises the definition of "Change in Control" and adds provisions that, in the event of a change in control, immediately vest participants in a portion of their retirement benefits and allow for lump sum payments. The amendment also specifies how benefits are calculated and paid if a change in control occurs. All other terms of the plan remain unchanged. The amendment is executed by authorized officers of Lilly Industries, Inc.

EX-10.44 19 0019.txt AMENDMENT TO THE EXECUTIVE RETIREMENT PLAN AMENDMENT TO THE LILLY INDUSTRIES, INC. EXECUTIVE RETIREMENT PLAN The Lilly Industries, Inc. Executive Retirement Plan (the "Plan") is hereby amended, effective as of May 11, 2000, as set forth below. 1. Section 2.01(d) of the Plan is hereby amended to read in its entirety as follows: (d) "Change in Control" means: (1) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either (A) the then-outstanding shares of common stock of the Company (the "Outstanding Company Common Stock") or (B) the combined voting power of the then-outstanding voting securities of the Company entitled to vote generally in the election of directors (the "Outstanding Company Voting Securities"); provided, however, that, for purposes of this Section 2.01(d), the following acquisitions shall not constitute a Change in Control: (A) any acquisition directly from the Company, (B) any acquisition by the Company, (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any affiliated company or (D) any acquisition by any corporation pursuant to a transaction that complies with Sections 2.01(d)(3)(A), 2.01(d)(3)(B) and 2.01(d)(3)(C); (2) Individuals who, as of May 11, 2000, constituted the Board (the "Incumbent Board") cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; (3) Consummation of a reorganization, merger, consolidation or sale or other disposition of all or substantially all of the assets of the Company (a "Business Combination"), in each case, unless, following such Business Combination, (A) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Common Stock and the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 60% of the then-outstanding shares of common stock and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation that, as a result of such transaction, owns the Company or all or substantially all of the Company's assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Stock and the Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 20% or more of, respectively, the then-outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such corporation, except to the extent that such ownership existed prior to the Business Combination, and (C) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination; or (4) Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company. 2. Section 2.02(c) of the Plan is hereby amended by adding the following phrase at the end thereof: ", except as specifically provided in Article VIII." 3. Section 4.02(b) of the Plan is hereby amended by adding the following phrase after the words "Notwithstanding any other provision of the Plan: ", other than Article VIII". 4. A new Article VIII is added to the Plan, reading in its entirety as follows: ARTICLE VII CHANGE IN CONTROL Section 8.01. Vested Benefits. Notwithstanding any other provision of the Plan, upon a Change in Control, each Participant shall be vested in a percentage of his or her Base Pension determined by dividing (i) the greater of the Participant's actual Years of Service as of the date of the Change in Control or eleven (11) by (ii) twenty-two (22). Such vested percentage of the Base Pension shall not be forfeitable for any reason, including without limitation those provided under Section 4.02 of the Plan. Section 8.02. Payment of Benefits. Notwithstanding any other provision of the Plan, immediately following any Change in Control, each Participant shall be paid in a lump sum the actuarial present value of his or her vested Base Pension (determined after applying Section 8.01), unless the Participant has previously elected, in accordance with an election procedure established by the Committee or its designee (the timing of which shall be determined by the Committee or its designee in its sole discretion), not to receive such lump sum payment. If a Participant who receives a lump sum payment under this Section 8.02 or his or her surviving spouse should become entitled to receive any future payments under the Plan, the amount of such future payments shall be actuarially reduced to reflect the receipt of such payment under this Section 8.02. Section 8.03 For purposes of this Article VIII, actuarial present values and actuarial reductions shall be determined using (i) a discount factor equal to the interest rate for the most recently issued Ten-Year U.S. Treasury Notes outstanding on the date of the Change in Control, and (ii) the 1983 Group Annuity Mortality Table for Males. * * * * * 5. The Plan is in all other respects ratified and confirmed without amendment. This Amendment to Lilly Industries, Inc. Executive Retirement Plan has been executed by the duly authorized officers of Lilly Industries, Inc. as of this 11th day of May, 2000. LILLY INDUSTRIES, INC. By: /s/ Douglas W. Huemme ---------------------------------- Douglas W. Huemme, Chairman & Chief Executive Officer ATTEST: By: /s/ John C. Elbin ------------------------------- John C. Elbin, Vice President, Chief Financial Officer and Secretary