INTERNATIONAL FLAVORS & FRAGRANCES INC.
BY-LAWS
(as adopted March 10, 1964, including all amendments
made through September 30, 2000)
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BY-LAWS
of
INTERNATIONAL FLAVORS & FRAGRANCES INC.
(a New York corporation)
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the stockholders of the
Corporation for the election of directors and for the transaction of such other
business as may properly come before the meeting shall be held at such place, on
such date and at such time as shall be designated from time to time by the Board
of Directors.
SECTION 2. SPECIAL MEETING. Special meetings of the stockholders, unless
otherwise prescribed by statute, may be called at any time by the Chairman of
the Board, the President or the Board of Directors.
SECTION 3. NOTICE OF MEETINGS. (a) Nomination of Directors. Only persons
who are nominated in accordance with the following procedures shall be eligible
for election as directors of the Corporation. Nominations of persons for
election to the Board of Directors may be made at any annual meeting of
stockholders, or at any special meeting of stockholders called for the purpose
of electing directors, (i) by or at the direction of the Board of Directors (or
any duly authorized committee thereof) or (ii) by any stockholder of the
Corporation (A) who is a stockholder of record on the date of the giving of the
notice provided for in this Section 3(a) and on the record date for the
determination of stockholders entitled to vote at such meeting and (B) who
complies with the notice procedures set forth in this Section 3(a).
In addition to any other applicable requirements, for a nomination to be
made by a stockholder, such stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation. To be timely, a
stockholder's notice to the Secretary must be delivered to or mailed and
received at the principal executive offices of the Corporation (i) in the case
of an annual meeting, not less than sixty (60) days nor more than ninety (90)
days prior to the anniversary date of the immediately preceding annual meeting
of stockholders; provided, however, that in the event that the annual meeting is
called for a date that is not within thirty (30) days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth (10th) day following
the day on which such notice of the date of the annual meeting was mailed or
such public disclosure of the date of the annual meeting was made, whichever
first occurs; and (ii) in the case of a special meeting of stockholders called
for the purpose of electing directors, not later than the close of business on
the tenth (10th) day following the day on which notice of the date of the
special meeting was mailed or public disclosure of the date of the special
meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary must
set forth (i) as to each person whom the stockholder proposes to nominate for
election as a director (A) the name, age,
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business address and residence address of the person, (B) the principal
occupation or employment of the person, (C) the class or series and number of
shares of capital stock of the Corporation which are owned beneficially or of
record by the person and (D) any other information relating to the person that
would be required to be disclosed in a proxy statement or other filings required
to be made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations promulgated thereunder; and (ii)
as to the stockholder giving the notice (A) the name and record address of such
stockholder, (B) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by such stockholder,
(C) a description of all arrangements or understandings between such stockholder
and each proposed nominee and any other person or persons (including their
names) pursuant to which the nomination(s) are to be made by such stockholder,
(D) a representation that such stockholder intends to appear in person or by
proxy at the meeting to nominate the persons named in its notice and (E) any
other information relating to such stockholder that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder. Such notice must be accompanied by a written consent of each
proposed nominee to being named as a nominee and to serve as a director if
elected. The Corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the Corporation to determine the
eligibility of such proposed nominee to serve as director of the Corporation.
Notwithstanding anything in these By-Laws to the contrary, no person shall
be eligible for election as a director of the Corporation unless nominated in
accordance with the procedures set forth in this Section 3(a). If the Chairman
of the meeting determines that a nomination was not made in accordance with the
foregoing procedures, the Chairman shall declare to the meeting that the
nomination was defective and such defective nomination shall be disregarded.
(b) Nature of Business at Meetings of Stockholders. No business may be
transacted at an annual meeting of stockholders, other than business that is
either (i) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board of Directors (or any duly authorized
committee thereof), (ii) otherwise properly brought before an annual meeting, by
or at the direction of the Board of Directors (or any duly authorized committee
thereof) or (iii) otherwise properly brought before an annual meeting by any
stockholder of the Corporation (A) who is a stockholder of record on the date of
the giving of the notice provided for in this Section 3(b) and on the record
date for the determination of stockholders entitled to vote at such meeting and
(B) who complies with the notice procedures set forth in this Section 3(b).
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered to
or mailed and received at the principal executive offices of the Corporation not
less than sixty (60) days nor more than ninety (90) days prior to the
anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting is called for a
date that is not within thirty (30) days before or after such anniversary date,
notice by the stockholder in order to be timely must be so received not later
than the close of business on the tenth (10th) day following the day on which
such notice of the date of the annual meeting was mailed or such public
disclosure of the date of the annual meeting was made, whichever first occurs.
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To be in proper written form, a stockholder's notice to the Secretary must
set forth as to each matter such stockholder proposes to bring before an annual
meeting, (i) a brief description of the business desired to be brought before
such meeting and the reasons for conducting such business at such meeting, (ii)
the name and record address of such stockholder, (iii) the class or series and
number of shares of capital stock of the Corporation which are owned
beneficially or of record by such stockholder, (iv) a description of all
arrangements or understandings between such stockholder and any other person or
persons (including their names) in connection with the proposal of such business
by such stockholder and any material interest of such stockholder in such
business and (v) a representation that such stockholder intends to appear in
person or by proxy at the meeting to bring such business before such meeting.
Notwithstanding the foregoing provisions of this Section, a stockholder seeking
to have a proposal included in the Corporation's proxy statement shall comply
with the requirements of Section 14 of the Exchange Act, including, but not
limited to, Rule 14a-8 promulgated thereunder or its successor provision. The
Corporation may require any stockholder to furnish such other information as may
reasonably be required by the Corporation to determine if the business shall be
properly brought before an annual meeting of the stockholders.
Notwithstanding anything in these By-Laws to the contrary, no business
shall be conducted at an annual meeting of stockholders except business brought
before such meeting in accordance with the procedures set forth in this Section;
provided, however, that, once business has been properly brought before the
meeting in accordance with such procedures, nothing in this Section 3(b) shall
be deemed to preclude discussion by any stockholder of any such business. If the
Chairman of an annual meeting determines that business was not properly brought
before such meeting in accordance with the foregoing procedures, the Chairman
shall declare to the meeting that the business was not properly brought before
the meeting and such business shall not be transacted.
SECTION 4. QUORUM. At all meetings of the stockholders of the Corporation,
the holders of a majority of the stock of the Corporation entitled to vote
thereat, present in person or by proxy, shall constitute a quorum for the
transaction of any business except as otherwise provided by law.
SECTION 5. ORDER OF BUSINESS. The order of business at all meetings of the
stockholders shall be as determined by the Chairman of the meeting, but the
order of business to be followed at any meeting at which a quorum is present may
be changed by a majority in voting interest of the stockholders present at the
meeting in person or by proxy and entitled to vote thereat.
SECTION 6. ORGANIZATION; ADJOURNMENT. At each meeting of the stockholders,
the Chairman of the Board of the Corporation, or, if he shall be absent
therefrom, the President of the Corporation, or, if he shall be absent
therefrom, the Executive Vice-President, or, if he shall be absent therefrom,
any other Vice-President of the Corporation, or, if the Chairman of the Board,
the President, the Executive Vice-President and all the other Vice-Presidents
shall be absent from such meeting, then some other officer of the Corporation,
or, if all its officers shall be absent therefrom, a stockholder holding of
record shares of stock of the Corporation having voting powers, or the proxy of
such a stockholder, who is chosen chairman of such meeting, shall act as
chairman thereof and preside thereat; and the Secretary of the Corporation, or,
if he shall be absent from such meeting, or, if he shall be required or chosen
pursuant to the provisions of this Section 6 to act as chairman of such meeting,
the person (who shall be an Assistant Secretary of the Corporation, if any of
them shall be present thereat) whom the chairman of such meeting shall appoint
secretary of such meeting, shall act as secretary of such meeting and keep the
minutes thereof.
If a quorum, determined in accordance with Article I, Section 4 hereof,
shall not be present or represented at any meeting of the stockholders, the
Chairman of the meeting, or if so requested by the Chairman, the stockholders
present in person or represented by proxy, shall have the power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting,
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until a quorum shall be present or represented. In addition, the Chairman of any
meeting of stockholders shall have the power to adjourn the meeting at the
request of the Board of Directors if the Board of Directors determines that
adjournment is necessary or appropriate to enable stockholders to consider fully
information which the Board of Directors determines has not been made
sufficiently or timely available to stockholders.
SECTION 7. VOTING. When a quorum is present or represented at any meeting,
the vote of the holders of a majority of the stock having voting power present
in person or represented by proxy shall decide any question brought before such
meeting, except as otherwise expressly provided by the Certificate of
Incorporation or by Law. At each meeting of the stockholders every stockholder
of record of the Corporation entitled to vote at such meeting shall be entitled
to one vote for each share of Common Stock standing in his name on the books of
the Corporation; provided, however, that the Board of Directors may fix, in
advance, a date not more than sixty nor less than ten days prior to the date of
such meeting as the date as of which stockholders entitled to notice of, and to
vote at, such meeting shall be determined, and in case the Board of Directors
shall fix a date, only stockholders of record on such date shall be entitled to
notice of, and to vote at, such meeting. The vote of stock of the Corporation
may be given by the stockholder entitled thereto in person or by proxy duly
appointed by an instrument in writing subscribed by such stockholder or by his
attorney thereunto duly authorized, and delivered to the Secretary of the
meeting. Unless demanded by a stockholder of the Corporation present in person
or by proxy at any meeting of the stockholders and entitled to vote thereat or
so directed by the chairman of the meeting, the vote thereat on any question
need not be by ballot. Upon a demand of any such stockholder for a vote by
ballot on any question or at the direction of such chairman that a vote by
ballot be taken on any question, such vote shall be taken by ballot. On a vote
by ballot each ballot shall be signed by the stockholder voting, or in his name
by his proxy, if there be such proxy, and it shall show the number of shares
voted by him.
SECTION 8. INSPECTORS OF ELECTION. At any meeting of the stockholders, an
inspector or inspectors of election may be appointed as provided in the Business
Corporation Law and shall have duties as provided in said Law. An inspector of
election need not be a stockholder of the Corporation, and any officer of the
Corporation may be an inspector of election on any question other than a vote
for or against his election to any position with the Corporation or any other
question in which he may be directly interested.
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ARTICLE II
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. Except as otherwise provided in these By-laws or
in the Certificate of Incorporation, the property, business and affairs of the
Corporation shall be managed by the Board of Directors.
SECTION 2. NUMBER. The number of directors shall be eleven but the number
thereof may, from time to time, be diminished to not less than six by amendment
of these By-laws. As used in these By-laws, the term "whole Board of Directors"
shall mean the total number of directors which the Corporation would have at the
time if there were no vacancies.
SECTION 3. ELECTION OF DIRECTORS. At each meeting of the stockholders for
the election of directors at which a quorum is present, the persons receiving a
plurality of the votes cast by the holders of stock entitled to vote thereat
shall be the directors. No person shall be eligible to serve as director of the
Corporation after the date of, or stand for the re-election at, the annual
meeting of stockholders which follows the date of his or her 72nd birthday,
except that persons serving as directors on February 8, 2000 who are re-elected
at the annual meeting held on May 18, 2000 (or any adjournment thereof) may
continue to serve as directors until the date of the annual meeting of
stockholders held in 2001.
SECTION 4. ORGANIZATION. The Board of Directors may choose one of their
number as Chairman of the Board. At each meeting of the Board of Directors, the
Chairman of the Board, or, if there shall be no Chairman or if he shall be
absent, the President of the Corporation, or in case of his absence, the
Executive Vice-President, or in case of his absence, a chairman who shall be any
director chosen by a majority of the directors present thereat, shall act as
chairman of such meeting and preside thereat. The Secretary of the Corporation,
or in the case of his absence, any person (who shall be an Assistant Secretary
of the Corporation, if an Assistant Secretary of the Corporation shall be
present at such meeting) whom the chairman shall appoint secretary of such
meeting, shall act as secretary of such meeting and keep the minutes thereof.
SECTION 5. RESIGNATIONS. Any director of the Corporation may resign at any
time by giving written notice of his resignation to the Board of Directors, the
President or the Secretary of the Corporation. Any such resignation shall take
effect at the time specified therein, then it shall take effect immediately upon
its receipt by such Board of Directors, President or Secretary; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
SECTION 6. VACANCIES. Vacancies occurring in the Board of Directors for any
reason, except the removal of directors without cause by the stockholders, may
be filled by the affirmative vote of at least two-thirds (2/3) of the whole
Board of Directors. A director elected to fill a vacancy shall be elected to
hold office for the unexpired term of his predecessor. Newly-created
directorships resulting from an increase in the number of directors may be
filled by vote of a majority of the directors then in office, although less than
a quorum exists.
SECTION 7. ORGANIZATION MEETING. After each annual election of directors,
the Board of Directors may hold a regular meeting for the purpose of
organization and the transaction of other business as soon as practicable on the
same day, at the place where other regular meetings of the Board
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of Directors are held. Notice of such meeting need not be given. Such meeting
may be held at any other time or place which shall be specified in a notice
given as hereinafter provided for special meetings of the Board or in a consent
and waiver of notice thereof signed by all the directors.
SECTION 8. REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held at such other times and at such places within or without the State
of New York or the United States as the Board shall from time to time by
resolution determine. If any day fixed for a regular meeting shall be a legal
holiday at the place where the meeting is to be held, then the meeting which
otherwise would be held on that day shall be held at the same hour on the next
succeeding business day. Notice of regular meetings need not be given.
SECTION 9. SPECIAL MEETINGS; NOTICE. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board, the
President of the Corporation, the Executive Vice-President of the Corporation,
or by any two (2) of the directors at the time in office. A notice shall be
given as hereinafter in this Section provided of each such special meeting,
stating the time and place thereof. Except as otherwise provided by law, notice
of each meeting shall be given by mail, telegraph, cable, wireless, telephone or
personal delivery to each director, at his residence or usual place of business
at least two (2) days before the day on which such meeting is to be held;
provided, however, in the case of any director residing outside the United
States, such notice shall be sent addressed to him at such place by telegraph,
cable or wireless, or be delivered personally or by telephone not later than
five (5) days before the day on which such meeting is to be held. Notice of any
meeting of the Board need not, however, be given to any director, if waived by
him in writing before or after the meeting or if he shall attend the meeting
without protesting, prior thereto or at its commencement, the lack of notice to
him.
SECTION 10. QUORUM AND MANNER OF ACTING.
(a) A majority of the whole Board of Directors shall be present in person
at any meeting of the Board in order to constitute a quorum for the transaction
of business at such meeting and, except as otherwise specifically provided by
the Certificate of Incorporation, these By-laws or by law, the act of a majority
of the directors present at any such meeting, at which quorum is present, shall
be the act of the Board. In the absence of a quorum from any such meeting, a
majority of the directors present thereat may adjourn such meeting from time to
time until a quorum shall be present thereat. Notice of any adjourned meeting
need not be given.
(b) Unless otherwise restricted by the Certificate of Incorporation or
these By-laws, any one or more members of the Board or any committee thereof may
participate in a meeting of the Board or committee by means of a conference
telephone or similar communications equipment allowing all persons participating
in the meeting to hear each other at the same time. Participation by such means
shall constitute presence in person at a meeting.
SECTION 11. COMMITTEES. There may be an Executive Committee consisting of
three or more directors as may be designated from time to time by a majority of
the whole Board of Directors. The Chairman of the Board shall be a member ex
officio of the Executive Committee. Such Committee may meet at stated times or
on notice to all by any of their number. During the intervals between the
meetings of the Board of Directors, the Executive Committee shall possess and
may exercise, to the extent provided in the resolution of the Board of Directors
appointing such committee, all the powers of the Board of Directors, except as
otherwise provided in the Business Corporation Law, in the management and
direction of the business and affairs of the Corporation in such manner as the
Executive Committee shall deem for the best interest of the Corporation. The
Executive Committee shall keep regular minutes of its proceedings and report the
same to the Board of Directors when required, but no approval by the Board of
Directors of the actions taken by the Executive Committee shall be required.
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A majority of the whole Board of Directors may also designate directors to
constitute one or more other committees, which shall in each case consist of
such number of directors and shall have such duties and may exercise such powers
as the Board of Directors may determine.
A majority of the whole Board may designate one or more directors as
alternate members of any such committee, including the Executive Committee, who
may replace any absent member or members at any meeting of such committee.
Each committee, including the Executive Committee and each member thereof,
shall serve at the pleasure of the Board.
SECTION 12. REMOVAL. Any director may be removed with cause by the
affirmative vote of at least two-thirds of the whole Board of Directors or with
or without cause by vote of the stockholders at a regular or special meeting,
subject to the provisions of the Business Corporation Law.
SECTION 13. COMPENSATION. The directors and the members of any committee of
the Corporation provided for by resolution of the Board of Directors shall be
entitled to be reimbursed for any expenses, including all travel expenses,
incurred by them on account of their attendance at any regular or special
meeting of the Board of Directors or of such committee, and the Board of
Directors may at any time or from time to time by resolution provide that the
Corporation shall pay each such director or member of such committee such
compensation for his services as may be specified in such resolution. Nothing in
this Section shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
SECTION 14. INDEMNIFICATION.
(a) RIGHT TO INDEMNIFICATION. The Corporation shall indemnify any person
made, or threatened to be made, a party to an action or proceeding, whether
civil or criminal, by reason of the fact that he, or a person of whom he is the
legal representative, is or was a director or officer of the Corporation, or,
while serving as director or officer of the Corporation, is or was serving in
any capacity, at the request of the Corporation, any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise,
against judgments, fines, amounts paid in settlement and reasonable expenses,
including attorney's fees, incurred by such person as a result of such action or
proceeding, or any appeal therein, unless a judgment or other final adjudication
adverse to such person establishes that his acts, or the acts of the person of
whom he is the legal representative, were committed in bad faith or were the
result of active and deliberate dishonesty and were material to the cause of
action so adjudicated, or that he, or the person of whom he is the legal
representative, personally gained in fact a financial profit or other advantage
to which he, or the other person of whom he is the legal representative, was not
legally entitled. The Corporation shall advance to such person funds to pay for
such expenses, including attorney's fees, incurred by such person in defending
against any such action or proceeding, or any appeal therein, upon receipt of an
undertaking by or on behalf of such person to repay such funds to the
Corporation if a judgment or other final adjudication adverse to such person
establishes that his acts, or the acts of the person of whom he is the legal
representative, were committed in bad faith or were the result of active and
deliberate dishonesty and were material to the cause of action so adjudicated,
or that he, or the person of whom he is the legal representative, personally
gained in fact a financial profit or other advantage to which he, or such
person, was not legally entitled.
(b) RIGHT OF CLAIMANT TO SUE. If a claim under paragraph (a) is not paid in
full by the Corporation within thirty days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expenses of the prosecuting such claim. It shall be a defense to any such
action (other than an action brought to enforce a
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claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant, or the person of whom he is the
legal representative, has not met the standard of conduct established in
paragraph (a), but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper because the claimant or such person has met the said
standard of conduct, nor an actual determination by the Corporation (including
its Board of Directors, independent legal counsel, or its stockholders) that the
claimant or such person has not met such applicable standard of conduct, shall
be a defense to action or create a presumption that the claimant or such person
has not met such standard of conduct.
(c) NON-EXCLUSIVITY OF RIGHTS. Subject to the limitations contained in
paragraph (a), the right to indemnification and the payment of expenses
conferred in this Section shall not be deemed exclusive of any other right to
which any person seeking indemnification or advancement or payment of expenses
may be entitled, whether under any statute, provision of the Certification of
Incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
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ARTICLE III
OFFICERS
SECTION 1. NUMBER. The principal officers of the Corporation shall include
a President, an Executive Vice-President, one or more other Vice-Presidents, a
Treasurer, a Controller and a Secretary. Any two or more offices may be held by
the same person, except the offices of President and Secretary.
SECTION 2. ELECTION, TERM OF OFFICE AND QUALIFICATIONS. The principal
officers of the Corporation shall be chosen annually by the Board of Directors.
Each principal officer shall hold office until his successor shall have been
duly chosen and shall qualify, or until his death or until he shall resign, or
shall have been removed in the manner hereinafter provided.
SECTION 3. ADDITIONAL OFFICERS. In addition to the principal officers
mentioned in Section 1 of this Article III, the Board of Directors may appoint
such other officers as the Board may determine, each of which officers shall
hold office for such period, have such authority and perform such duties as are
provided in these By-laws or as the Board of Directors may from time to time
determine.
SECTION 4. REMOVAL. Any officer of the Corporation elected or appointed by
the Board of Directors may be removed by the Board of Directors with or without
cause at any time.
SECTION 5. RESIGNATIONS. Any officer of the Corporation may resign at any
time by giving written notice of his resignation to the Board of Directors or to
the President or Secretary of the Corporation. Any such resignation shall take
effect at the time specified therein, or, if the time when it shall become
effective shall not be specified therein, then it shall take effect immediately
upon its receipt by such Board of Directors, President or Secretary; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
SECTION 6. VACANCIES. A vacancy in any office due to death, resignation,
removal, disqualification or any other cause shall be filled for the unexpired
portion of the term in the manner prescribed in these By-laws for regular
appointments or elections to such office.
SECTION 7. THE PRESIDENT. The President shall be the chief executive
officer of the Corporation and shall have general supervision of the business of
the Corporation and over its several officers, subject, however, to the control
of the Board of Directors. He shall in the absence of the Chairman of the Board
preside at all meetings of the stockholders and at all meetings of the Board of
Directors. He shall see that all orders and resolutions of the Board of
Directors are carried into effect. He may sign, execute and deliver in the name
of the Corporation all deeds, mortgages, bonds, contract or other instruments
authorized by the Board of Directors except where the signing, execution or
delivery thereof shall be expressly delegated by the Board of Directors or by
these By-laws to some other officer or agent of the Corporation or where any of
them shall be required by law to be otherwise signed, executed or delivered, and
he may affix the seal of the Corporation to any instrument which shall require
it. He shall perform all duties incident to the office of President and such
other duties as from time to time may be assigned to him by the Board of
Directors.
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SECTION 8. THE EXECUTIVE VICE-PRESIDENT. The Executive Vice-President shall
have such powers and perform such duties as the Board of Directors may from time
to time prescribe and shall perform such other duties as may be prescribed by
these By-laws. At the request of the President or, in the case of his inability
to act, he shall have all the powers of, and be subject to all the restrictions
upon, the President.
SECTION 9. THE VICE-PRESIDENTS. Each Vice-President shall have such powers
and perform such duties as the Board of Directors may from time to time
prescribe and shall perform such other duties as may be prescribed by these
By-laws. At the request of the President, or, in case of the inability of the
President and the Executive Vice-President to act, any of the Vice-Presidents
may perform the duties of the President, and when so acting shall have all the
powers of, and be subject to all the restrictions upon, the President.
SECTION 10. THE TREASURER. The Treasurer shall have the care and custody of
the books of account and of all the funds and securities of the Corporation, and
deposit the funds in the name of the Corporation in such bank or trust company
as the directors may designate. If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of his duties in such sum
and with such surety or sureties as the Board of Directors shall determine. He
shall perform all the duties incidental to the office of Treasurer and such
other duties as from time to time may be assigned to him by the President or the
Board of Directors.
SECTION 11. THE CONTROLLER. The Controller shall maintain adequate records
of all assets, liabilities and transactions of the Corporation, and have
adequate audits thereof currently and regularly made. In addition, he shall
perform such other duties relating to the finances of the Corporation or
otherwise, as may be prescribed by the Board of Directors, the President or the
Treasurer.
SECTION 12. THE SECRETARY. The Secretary shall attend all meetings of the
Board of Directors and of the stockholders and record all votes and the minutes
of all proceedings in a book to be kept for that purpose and shall perform like
duties for the standing committees when required. He shall give, or cause to be
given, notice of all meeting of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors or President, under whose supervision he shall be. he
shall keep or cause to be kept a stock-book, containing the names,
alphabetically arranged, of all persons who are stockholders of the Corporation,
showing their places of residence, the number of shares of stock owned by them
respectively, the times when they respectively became the owners thereof and the
amount paid thereon. He shall keep in safe custody the seal of the Corporation
and, when properly authorized, affix the same to any instrument requiring it
and, when so affixed, it shall be attested by his signature or by the signature
of the Treasurer or an Assistant Secretary.
SECTION 13. SALARIES. The salaries of the officers of the Corporation shall
be fixed from time to time by the Board of Directors, and none of such officers
shall be prevented from receiving a salary by reason of the fact that he is also
a member of the Board.
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ARTICLE IV
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 1. EXECUTION OF CONTRACTS, ETC. Except as otherwise required by law
or by these By-laws, the Board of Directors may authorize any officer or
officers, agent or agents, to execute and deliver any contract or other
instrument in the name of the Corporation and on its behalf.
SECTION 2. CHECKS, DRAFTS, ETC. All checks, drafts and other orders for the
payment of money, bills of lading, warehouse receipts, obligations, bills of
exchange and insurance certificates shall be signed or endorsed, except
endorsements for collection for the account of the Corporation or for deposit to
its credit, by such officer or officers, agent or agents of the Corporation and
in such manner as shall from time to time be determined by resolution of the
Board of Directors.
SECTION 3. DEPOSITS. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation or
otherwise as the Board of Directors, or any officer of the Corporation to whom
power in that respect shall have been delegated by the Board of Directors, shall
direct in such banks, trust companies or other depositories as said Board may
select or as may be selected by any officer or officers or agent or agents of
the Corporation to whom power in that respect shall have been delegated by the
Board of Directors. For the purpose of deposit and for the purpose of collection
for the account of the Corporation, checks, drafts and other orders for the
payment of money which are payable to the order of the Corporation may be
endorsed, assigned and delivered by any officer or agent of the Corporation.
SECTION 4. GENERAL AND SPECIAL BANK ACCOUNTS. The Board of Directors may
from time to time authorize the opening and keeping of general and special bank
accounts with such banks, trust companies or other depositaries as the Board of
Directors may select, or as may be selected by any officer or officers, agent or
agents of the Corporation to whom power in that respect shall have been
delegated by the Board of Directors. The Board of Directors may make such
special rules and regulations with respect to such bank accounts, not
inconsistent with the provisions of these By-laws, as it may deem expedient.
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ARTICLE V
SHARES AND THEIR TRANSFER
SECTION 1. CERTIFICATES FOR STOCK. Every owner of shares of stock of the
Corporation shall be entitled to have a certificate therefor, in such form as
the Board of Directors shall prescribe, certifying the number and class of
shares thereof owned by him. The certificates representing such shares shall be
numbered in the order in which they shall be issued and shall be signed in the
name of the Corporation by the President, the Executive Vice-President or a
Vice-President, and by the Treasurer or the Secretary or an Assistant Treasurer
or Assistant Secretary of the Corporation and its seal shall be affixed thereto;
provided, however, that where such certificate is signed by a transfer agent or
registered by a registrar other than the Corporation itself or its employee, if
the Board of Directors shall by resolution so authorize, the signatures of such
President, Executive Vice-President, Vice-President, Treasurer, Secretary,
Assistant Treasurer or Assistant Secretary and the seal of the Corporation may
be facsimile. In case any officer or officers of the Corporation who shall have
signed, or whose facsimile signature or signatures has been placed upon a
certificate or certificates shall cease to be such officer or officers, whether
by reason of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be adopted by the Corporation and be issued and
delivered as if the person or persons who signed such certificate or
certificates had not ceased to be such officer or officers. A record shall be
kept of the respective names of the persons, firms or corporations owning the
shares represented by certificates for stock of the Corporation, the number of
shares represented by such certificates, respectively, and the respective dates
thereof, and in case of cancellation, the respective dates of cancellation.
Every certificate surrendered to the Corporation for exchange or transfer shall
be canceled and a new certificate or certificates shall not be issued in
exchange for any existing certificate, until such existing certificate shall
have been so canceled except in cases provided for in Section 4 of this Article
V.
SECTION 2. TRANSFERS OF STOCK. Transfers of shares of the stock of the
Corporation shall be made on the books of the Corporation only by the registered
holder thereof, or by his attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary of the Corporation or with a transfer
clerk or transfer agent appointed as in Section 3 of this Article V provided,
and on surrender of the certificate or certificates for such shares properly
endorsed and the payment of all taxes thereon. The person in whose name shares
of stock stand on the books of the Corporation shall be deemed the owner thereof
for all purposes as regards the Corporation.
SECTION 3. REGULATIONS. The Board of Directors may make such rules and
regulations, as it may be deem expedient, not inconsistent with these By-laws,
concerning the issue, transfer and registration of certificates for shares of
the stock of the Corporation. It may appoint, or authorize any principal officer
or officers to appoint, one or more Transfer Clerks or one or more Transfer
Agents or one or more Registrars, and may require all certificates of stock to
bear the signature or signatures of any of them.
SECTION 4. LOST, DESTROYED AND MUTILATED CERTIFICATES. The holder of any
share of stock of the Corporation shall immediately notify the Corporation of
any loss, destruction or mutilation of the certificate therefor, and the
Corporation may issue a new certificate of stock in the place of any certificate
theretofore issued by it, alleged to have been lost or destroyed, and the Board
of Directors may, in its discretion, require the owner of the lost or destroyed
certificate or his legal representatives to give the Corporation a bond in such
sum, limited or unlimited, and in such form and with such surety or sureties, as
the Board shall in its uncontrolled discretion determine, to indemnify the
Corporation against any claim that may be made against it on account of the
alleged loss or destruction of any such certificate, or the
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issuance of such new certificate. The Board of Directors, however, may in its
discretion refuse to issue any such new certificate, except pursuant to legal
proceedings under the laws of the State of New York in such case made and
provided.
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ARTICLE VI
SEAL
The seal of the Corporation shall be in the form of a circle, and shall
bear the full name of the Corporation and the year of its incorporation.
ARTICLE VII
FISCAL YEAR
The fiscal year of the Corporation shall end with the thirty-first day of
December in each year.
ARTICLE VIII
AMENDMENTS
The Board of Directors shall have the power to amend, repeal or adopt the
By-laws of the Corporation, and the By-laws may be amended, repealed or adopted
by the stockholders entitled at the time to vote in the election of directors.
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EXHIBIT 10(a)
SEPARATION AGREEMENT
This SEPARATION AGREEMENT (this "Agreement") is entered into as of the 15th
day of June, 2000 between Stuart R. Maconochie (the "Executive") and
International Flavors & Fragrances Inc., a New York corporation (the "Company")
and International Flavours & Fragrances I.F.F. (Great Britain Limited, a United
Kingdom company ("IFF Great Britain").
W I T N E S S E T H:
WHEREAS, the Executive was employed by the Company as its Vice President
and President of its Fragrance Division (the "Assignment") pursuant to the terms
and conditions of a letter agreement dated July 27, 1998 between the Company and
the Executive (the "Letter Agreement"), and served as a member of the Board of
Directors (the "Board"); and
WHEREAS, on October 1, 1999, the Assignment terminated, although the
Executive has remained employed by the Company and a member of the Board; and
WHEREAS, the Executive and the Company now desire to enter into an
agreement concerning the separation and retirement of the Executive from the
Company as hereinafter set forth,
NOW, THEREFORE, in consideration of the mutual promises contained in this
Agreement, the Executive and the Company agree as follows:
1. TERMINATION OF EMPLOYMENT RELATIONSHIP; RESIGNATION FROM DIRECTORSHIPS.
The parties hereto agree that the Executive's employment with the Company, and
with all entities controlled directly or indirectly by the Company (the "Company
Group"), will terminate effective June 30, 2000 (the "Retirement Date"). The
Executive further agrees that he hereby voluntarily resigns as a director and/or
officer in each Company Group entity in which he has served as a director 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, all effective as of the date at
the head of this Agreement. The Executive agrees to execute such formal letters
of resignation as the Company may request. The Letter Agreement is hereby
terminated and cancelled effective as of the effective date of this Agreement,
with no compensation, benefits, damages,
<PAGE>
obligations or other payments owing to the Executive thereunder. The Executive
Severance Agreement between the Executive and the Company, dated December 14,
1994, shall terminate on the Retirement Date.
2. CONSIDERATION TO THE EXECUTIVE. The Company shall make the following
payments and provide the following additional benefits and consideration to the
Executive, subject to Section 6 hereof:
(a) COMPENSATION CONTINUATION. The Company shall continue to pay the
Executive his base salary of $39,583.33 per month (payable semi-monthly)
through and including the Retirement Date. Thereafter, the Executive shall
receive "Salary Continuation Payments" of $39,583.33 per month through and
including December 31, 2001 (the period from the Retirement Date through
December 31, 2001 is hereinafter referred to as the "Severance Period").
Salary Continuation Payments will be made semi-monthly at the same times as
compensation is paid to exempt United States employees of IFF.
(b) BONUS. The Executive acknowledges that he has received incentive
compensation of $142,500 under the Company's Management Incentive
Compensation Plan (the "MICP") in respect of the year 1999. Within five (5)
business days after the date of execution of this Agreement, the Company
shall pay the Executive an additional $47,500 in respect of his incentive
compensation award for 1999 under the MICP. The Executive agrees and
acknowledges that the aggregate award of $190,000 (equal to 40% of his 1999
base salary) is the only incentive compensation award (whether under the
MICP or otherwise) to which he is entitled in respect of 1999. No bonus or
other incentive compensation (whether under the MICP or otherwise) is or
shall be awarded to the Executive with respect to any period after 1999.
(c) OPTIONS. The Executive may exercise through and including
September 30, 2000 any IFF stock options that are exercisable on the
Retirement Date, in accordance with the provisions of various Stock Option
Agreements between the Executive and the Company. If the Executive should
die prior to the expiration of that period (including prior to the
Retirement Date), 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 Retirement Date shall lapse on such date. All
exercisable but then unexercised Options shall expire at the close of
business on September 30, 2000.
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(d) PENSION; UNITED KINGDOM SOCIAL SCHEME. Until the Retirement Date,
the Executive shall continue to accrue a pension (the "Pension") in
accordance with the March 31, 1990 letter agreement between the Executive
and IFF Great Britain, a copy of which is annexed to this Agreement as
Schedule I (the "Pension Letter"). Commencing July 1, 2000 (and in addition
to the Salary Continuation Payments contemplated in clause (a) of this
Section 2) the Executive shall commence receiving the Pension. The
Executive and the Company agree that the Pension shall aggregate (from all
sources identified in the Pension Letter, and including the adjustment for
early retirement contemplated in the Pension Letter) UK (pound) l79,240 per
year, which shall be paid in monthly installments of UK (pound) 14,936,67.
The Company shall take no action that would cause the Executive to be
disqualified from continuing to participate in the United Kingdom Social
Security System and/or the United Kingdom Private Health System.
(e) APARTMENT. Effective February 1, 1999, the Company, in its name,
entered into a two-year lease, expiring January 31, 2001 (the "Lease"), for
an unfurnished two-bedroom two-bath apartment (No. 50A) at Central Park
Place, 301 West 57th Street, New York, New York (the "Apartment"), for use
by the Executive during the Assignment. The Company has paid on behalf of
the Executive the rent and utilities (other than telephone) on the
Apartment, and the rental/real estate agent's fees and closing costs in
connection with the rental of the Apartment, and has fully grossed up for
United States Federal, State and/or local income tax purposes any income
that the Executive was required to recognize as a result of any of such
payments by the Company. Notwithstanding the termination of the Assignment
or the Executive's retirement, the Company agrees (i) that the Executive
may continue to reside in the Apartment until the expiration of the Lease,
and the Company agrees to continue to pay the rent and utilities (other
than telephone) thereon until the earlier of the expiration of the Lease or
the Executive's vacating the Apartment, and (ii) for such period the
Company shall continue fully to gross up for United States Federal, State
and/or local income tax purposes any income that the Executive may be
required to recognize as a result of any of such payments by the Company.
The Apartment shall continue to be reserved exclusively for the Executive,
provided, however, that if for any reason the Executive shall not be using
the Apartment for a period of at least one week, he shall so notify the
Company, and the Company in its sole discretion may use the Apartment to
accommodate others during such period.
(f) DESIGN FEE; FURNITURE AND FURNISHINGS. The Company has advanced to
the Executive the sum of $39,583.33 and has paid directly to vendors the
sum of $35,000 in respect of design fees for assistance in connection with
the design, layout
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and furnishing of the Apartment and the cost of furniture and furnishings
purchased for the Apartment (collectively, "Apartment Furnishings"). The
Executive has provided to the Company a summary, together with invoices
and/or receipts aggregating $205,836.89, of Apartment Furnishings purchased
for the Apartment. A copy of that summary is annexed to this Agreement as
Schedule II. The Company has agreed to pay to the Executive $195,931.98,
less the $74,583.33 already advanced or paid by the Company, in respect of
Apartment Furnishings, or an aggregate of $121,348.65. In consideration of
the agreement by the Company so to pay for Apartment Furnishings, the
Executive has agreed that, with the exception of his personal stationery
and bed linens, towels, china, glassware and kitchen utensils, all of which
the Executive may take with him when he vacates the Apartment or at the
expiration of the Lease, whichever shall occur earlier, all other Apartment
Furnishings shall be left in the Apartment and shall be deemed to be the
sole property of the Company. The Company may enter the Apartment at such
reasonable times as the Executive and the Company may in good faith agree
in order to inventory Apartment Furniture and, in connection with
Executive's vacating the Apartment or the expiration of the Lease, at such
time as are necessary to enable the Company to remove Apartment Furnishings
before such expiration. The Company shall fully gross up for United States
Federal, State and/or local income tax purposes any income that the
Executive may be required to recognize as a result of the Company's payment
for Apartment Furnishings.
(g) SHIPMENT AND STORAGE. The Company agrees further to ship at its
cost to any location in the United Kingdom designated by the Executive the
Executive's Furniture, as well as all other persona1 effects of the
Executive (together with the Executive's Furniture, the "Executive's
Personal Property"), and agrees to arrange and pay for up to six months'
storage in the United Kingdom of the Executive's Personal Property after
such shipment. The Company shall fully gross up for United States Federal,
State and/or local income tax purposes any income that the Executive may be
required to recognize in respect of the shipment to and/or storage in the
United Kingdom of the Executive's Personal Property.
(h) MEDICAL COVERAGE; LIFE INSURANCE. The Company shall continue
membership for the Executive and his eligible dependents (including his
ex-wife until her divorce from the Executive is final) until the
Executive's 65th birthday in the IFF Great Britain medical scheme, after
which the Executive shall participate in the IFF Great Britain medical
scheme for retirees. In addition, until the Retirement Date, the Executive
shall continue to participate in the Company's United States Group
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Health Plan (the "US Plan"). After the Retirement Date and until the
expiration of the Severance Period, the Company shall take appropriate
steps to continue the Executive's participation in the US Plan in
accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA"). Although normally employees desiring such post-employment
coverage would have to pay a monthly premium therefor, the Company shall
waive the monthly premiums for the shorter of the Severance Period or until
the end of the month in which the Executive commences new "Employment," as
hereinafter defined, pursuant to which he becomes eligible for medical
coverage, whether or not (a) such coverage is comparable to that offered
by the Company; (b) such coverage requires that the Executive pay all or a
portion of its cost; (c) the Executive elects to participate in such
coverage; and (d) such coverage includes reimbursement for dental expenses.
Such period is hereinafter referred to as the "Supplemental Benefits
Period." IFF Great Britain shall continue the Executive's current life
insurance coverage for the shorter of the Severance Period or until the end
of the month in which the Executive commences new Employment. For the
purpose of this Agreement, "Employment" shall mean the Executive's
substantially full-time participation for monetary compensation as an
officer, employee, partner, principal or individual proprietor in any
entity or business. If the Supplemental Benefits Period expires before the
end of eighteen (18) months after the Retirement Date, after such
expiration the Executive shall be able to continue the coverage for up to a
period (including the Supplemental Benefits Period) aggregating eighteen
(18) months after the Retirement Date by paying the applicable monthly
premiums. The Company shall fully gross up for United States Federal, State
and/or local income tax purposes any income that the Executive may be
required to recognize as a result of the continuation of his participation
in the IFF Great Britain medical scheme or the waiver by the Company of
premiums for coverage under the US Plan during the Supplemental Benefits
Period.
(i) COMPANY CAR. IFF Great Britain leases for the business and
personal use of the Executive a 1998 Range Rover 4.6HSE (the "Company
Car"), the lease on which expires on 29 June 2001. Until the expiration of
such lease, the Executive shall have the continued right (i) to have the
exclusive use of the Company Car, with IFF Great Britain continuing to pay
for maintenance (which is included in the lease cost) and insurance
thereon, and (ii) to use a space allocated to IFF Great Britain in the car
park at IFF Great Britain's Hammersmith, United Kingdom headquarters (the
"Company Car Park"). At the expiration of such lease, the Executive (i)
shall return to IFF Great Britain the pass for the Company Car Park, and
(ii) shall have the right to purchase the Company Car for the residual
value set
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forth therein. All costs of operating the Company Car, including but not
limited to fuel, not specifically assumed by IFF Great Britain pursuant to
this clause (i) of this Section 2 shall be the sole responsibility of the
Executive.
(j) OUTPLACEMENT. In October 1999 the Company arranged for the
Executive to have the outplacement services of Barbara Crenshaw and
Associates, and has paid all fees associated therewith. The Company agrees
to continue such outplacement services at the same level at which and in
the same manner in which they have been heretofore provided, and to pay any
additional fees that may be required to cause such outplacement services to
be continued until the earlier of the first anniversary after the
expiration of the Severance Period or until the Executive accepts new
Employment.
(k) ATTORNEY'S FEES. The Company agrees to pay directly to Messrs.
White & Case LLP, in care of Philip H. Schaeffer, Esq., counsel to the
Executive, upon presentation to the Company of an invoice therefor, the sum
of not more than $26,500 in respect of the fees and out-of-pocket expenses
of such firm in respect of such firm's representation of the Executive in
connection with the negotiation and execution of this Agreement and all
matters associated with the Executive's retirement from the Company. All
other fees and disbursements of White & Case and/or Mr. Schaeffer, and all
fees and disbursements of any other counsel or other advisor retained by
the Executive, whether in connection with his retirement or for any other
purpose (except as provided in Section 7 of this Agreement), shall be the
Executive's sole responsibility.
(l) TAX ADVICE AND EFFICIENCY. Until the earlier of the expiration of
the Severance Period or the Executive's commencement of new Employment, the
Company shall continue to provide the Executive with tax advice and tax
preparation services from PricewaterhouseCoopers LLP or another independent
public accountant selected by the Company and reasonably acceptable to the
Executive (the "Accountant"), provided that between the date of this
Agreement and the expiration of the Severance Period the Company shall not
be responsible for more than an aggregate of $25,000 in fees and
disbursements of the Accountant. All other fees and disbursements of the
Accountant, and all fees and disbursements of any other independent public
accountant or financial advisor retained by the Executive, whether in
connection with matters arising out of the Executive's employment with the
Company, his retirement, this Agreement or otherwise, shall be the
Executive's sole responsibility. The Company shall cooperate with the
Executive and the Accountant to assist the Executive to achieve a lawful
tax efficient approach
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to the payments and benefits being provided pursuant to this Agreement.
3. OBLIGATIONS OF THE EXECUTIVE. The Executive shall be responsible, and
shall neither be entitled to nor shall seek reimbursement, for all expenses
incurred by him for whatever purpose on and after October 1, 1999, except as
specifically provided in this Agreement. In amplification and not in limitation
of the foregoing, the Executive shall be responsible for all club memberships,
limousine and taxi cab costs and travel expenses (including airfare, hotel,
meals, and incidental expenses) incurred by him on and after such date. In
addition, the Executive acknowledges that, at 31 December 1998 he had
unaccounted for expenses and advances from IFF Great Britain aggregating UK
(pound) l67,l75.82, and that at the date of this Agreement none of such expenses
and advances have been accounted for. The Executive agrees that, on or before
the Retirement Date, he will submit to the Company expense reports on the
appropriate Company form showing the business and/or personal nature of such
expenses and advances and that he will reimburse IFF Great Britain any sums that
he may owe in respect of expenses reasonably determined by IFF Great Britain to
be personal to the Executive. The Executive agrees that any expenses that have
not been accounted for and/or personal expenses not reimbursed to IFF Great
Britain on or prior to the Retirement Date may be deducted by the Company from
Salary Continuation Payments until such unaccounted for or personal expenses
have either been accounted for or paid in full.
4. NONSOLICITATION. During the Severance Period, the Executive 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.
5. ENTIRE CONSIDERATION. The Executive understands and agrees that the
payments and benefits provided for in this Agreement 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, which consideration he agrees
is adequate and satisfactory to him.
6. RELEASE. As a condition to the Executive's entitlement to the
compensation, payments and benefits provided for in Section 2 hereof, the
Executive shall have executed and delivered to the Company a release in the form
attached hereto as Schedule III (the "Release"), and such Release shall have
become
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irrevocable. If the Executive exercises his right to revoke the Release in
accordance with the terms thereof, then this Agreement shall become null and
void ab initio. The Company shall execute and deliver to the Executive a release
in the form attached hereto as Schedule IV (the "Company Release")
7. NON-DISPARAGEMENT. Each of the Executive and the Company agrees that at
no time will either the Executive or any officer, director, employee or other
representative of any member of the Company Group 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 Group, 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 Group, of any
officer, director, employee or other representative of any member of the Company
Group.
8. COOPERATION AND ASSISTANCE. The Executive acknowledges that he may have
historical information or knowledge that may be useful to the Company Group in
connection with current or future legal, regulatory or administrative
proceedings. The Executive shall provide such reasonable cooperation to the
Company Group in the defense or prosecution of any such claims that relate to
events or occurrences that transpired during the Executive's employment with the
Company Group as the Company Group may request. The Executive'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 Executive. The Company shall reimburse the Executive for
all out-of-pocket expenses, including the reasonable fees of the Executive's
personal attorney, which he incurs in connection with such cooperation.
9. RETURN OF PROPERTY. The Executive expressly agrees that, upon his
execution of this Agreement, 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, cellular telephones, 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. At the request of
the Company the Executive will affirm that he has not retained copies of any
such property or other materials. Notwithstanding the foregoing, the
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Executive may retain (a) the IBM 600 laptop computer that he was using on the
date the Assignment terminated (after returning to the Company to enable the
Company to purge any information belonging to the Company Group that may reside
on any drive thereof); and (b) the cellular telephone provided by IFF Great
Britain that the Executive was using on the date the Assignment terminated,
provided that all responsibility for the c in respect of such cellular
10. NON-DISCLOSURE. Under the Executive's Security Agreement with the
Company, and under applicable trade secret law, the Executive is obliged to keep
in confidence all trade secrets and proprietary and confidential information of
the Company Group, whether patentable or not and which he learned or of which he
became aware or informed during his employment by the Company Group (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
Executive is employed by the Company, but after cessation of that employment. In
amplification and not in limitation of the foregoing, the Executive 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 formulae, secret processes and
products, qualities and grades of fragrance ingredients and raw materials,
including but not limited to aroma chemicals, perfumery 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 Executive 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 Executive agrees to abide by the terms and
conditions of the Security Agreement and of this Section 10 both until the
Retirement Date and during the Severance Period and thereafter. Anything to the
contrary notwithstanding, this Section 10 shall not apply to any knowledge or
information that has become
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generally known in the industry or by the public (other than through a breach of
this Agreement by the Executive).
11. NO ADMISSION. Nothing in this Agreement shall be deemed to constitute
an admission or evidence of any wrongdoing or liability on the part of the
Company or the Executive and the parties agree that neither this Agreement nor
any of the terms or conditions contained herein may be used in any future
dispute or proceeding except one to enforce the terms of this Agreement.
12. TAX AND WITHHOLDING. Except as otherwise specifically provided in this
Agreement, any Federal, State and/or local (whether the United States or
elsewhere) income, personal property, franchise, excise or other taxes owed by
the Executive as a result of the payments or benefits provided under this
Agreement shall be the sole responsibility and obligation of the Executive. The
parties hereto agree and acknowledge that Company shall have the right to
withhold from any payments made to the Executive 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.
13. 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 either party hereto
unless made in writing and signed by such party.
14. 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 of any arbitration or litigation, the Company shall
continue payment of all amounts due the Executive under this Agreement and all
benefits to which the Executive is entitled at the time the dispute arises.
15. SEVERABILITY. In the event that any provision of this Agreement should
be held to be void, voidable, unlawful or, for any reason, unenforceable, the
remaining provisions shall remain in full force and effect, and to that end the
provisions
10
<PAGE>
of this Agreement are declared to be severable.
16. 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.
17. 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 Executive, his
executors, administrators, heirs and legal representatives.
18. 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 Executive:
Mr. Stuart R. Maconochie
Apartment 50A
Central Park Place
301 West 57th Street
New York, New York 10019
If to the Company or IFF Great Britain:
International Flavors & Fragrances Inc.
521 West 57th 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.
19. COUNTERPARTS. This Agreement may be executed in counterparts, and each
counterpart, when executed, shall have the effect of a signed original.
20. ACKNOWLEDGMENT OF KNOWING AND VOLUNTARY RELEASE; REVOCATION RIGHT. The
Executive certifies that he has read the
11
<PAGE>
terms of this Agreement. The execution hereof by the Executive shall indicate
that this Agreement conforms to the Executive's understandings and is acceptable
to him as a final agreement. it is further understood and agreed that the
Executive 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 twenty-one (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.
STUART R. MACONOCHIE
/S/ STUART R. MACONOCHIE 06/19/00
----------------------------------- --------
Stuart R. Maconochie Date
INTERNATIONAL FLAVORS & FRAGRANCES INC.
By: /s/ STEPHEN A. BLOCK 06/15/00
----------------------------------- --------
Stephen A. Block Date
Senior Vice-President
General Counsel
and Secretary
INTERNATIONAL FLAVOURS & FRAGRANCES
I.F.F. (GREAT BRITAIN) LIMITED
By: /s/ STEPHEN A. BLOCK 06/15/00
----------------------------------- --------
Stephen A. Block Date
Authorized Signatory
12
<PAGE>
SCHEDULE I
[IFF LOGO]
================================================================================
INTERNATIONAL FLAVOURS & FRAGRANCES, I.F.F. (GREAT BRITAIN) LTD.
DUDDERY HILL, HAVERHILL, SUFFOLK CB9 8LG
CHEMICAL DIVISION - FLAVOUR DIVISION - PURCHASING - ACCOUNTS
TEL. (0440) T04488 TELEX 81881 IFFGB G
CHEMICAL FAX (0440) 82198
FLAVOUR FAX (0440) 81598
S.R. Maconochie Esq., 31st March 1990
Badger's Wood,
Kimbers Lane,
Maidenhead,
Berkshire.
SL6 2QP
Dear Mr. Maconochie,
YOUR RETIREMENT BENEFITS
The Finance Act 1989 introduced restrictions on the benefits that can be
provided under pension schemes approved by the Inland Revenue.
We set out in our letter of 31st March 1990 the arrangements designed to
provide you with the maximum benefits approvable by the Inland Revenue for tax
purposes.
However, we appreciate that the benefits provided under the tax approvable
schemes may not provide the desired levels of benefits.
Therefore, we set out below the benefits that we will provide in addition
to the benefits provided under the approvable schemes, should those approvable
schemes benefits fall short of the desired amounts.
1. DEFINITIONS
"Salary" means your basic salary over the period of twelve months
immediately prior to your date of retirement, death or leaving service plus
the yearly average of your other earnings subject to Schedule E income tax
in the 36 months immediately prior to your retirement, death or leaving
service.
"Normal Pension Age" means your 65th birthday.
Creators and Manufacturers, of Flavors, Fragrances and Aroma
Chemicals
<PAGE>
"Personal Pension Plan" means the arrangement approvable under Chapter IV
Part XIV of the Income and Corporation Taxes Act 1988, to which the
Employer is contributing.
"Personal Plans" means the Personal Pension Plan and the arrangement
approvable under Chapter IV Part XIV of the Income and Corporation Taxes
Act 1988 established to accept the transfer value from your pension
arrangement with R.P. Scherer.
"Employer" means IFF (GB) Limited.
"Maximum Approvable Remuneration" means the best definition allowable by
the Inland Revenue for the purposes of calculating approvable benefits,
subject always to an earnings ceiling set by the Inland Revenue, which for
the year ending 31st March 1990 is (pound)60,000. This ceiling will
increase on 1st Apri1 each year in line with the movement in the General
Index of Retail Prices for the year 1st January to 31st December
(inclusive) immediately preceding the 1st April of determination.
"Widow" means the wife to whom you are married at the date of death.
"Retained Lump Sum Death Benefit" means the total value of any lump sum
death benefits that, for the purposes of calculating the Inland Revenue
Maximum approvable lump sum death benefit, have to be taken into
consideration.
2. RETIREMENT AT NORMAL PENSION AGE
On your retirement at Normal Pension Age you will be entitled to a yearly
pension for life calculated as (A) below, less (B) below:
(A) 2/3rds of your Salary at Normal Pension Age,
(B) the pension payable (or prospectively payable) from Normal Pension Age
in respect of the Personal Plans.
<PAGE>
The pension under (B) above shall be calculated as if the benefits were
taken wholly in the form of pension of the same type and subject to the
same conditions as apply under this letter. The amount of such pension
shall include the pension equivalent of any benefits payable to you other
than in pension form and shall be determined as if no cash would be taken
as an alternative to pension. The amount of pension shall be calculated
where necessary using such estimates of policy proceeds, annuity rates and
any other relevant matters as we shall determine to be appropriate.
3. EARLY RETIREMENT
You may, with our consent, retire early on grounds other than Ill-health at
any time on or after age 50.
On early retirement, if the pension secured by your Personal Pension Plan
is insufficient, you will be entitled to a yearly pension payable for life
calculated in accordance with the following formula
N X P
--
NS
Where N = the number of years of service completed at the date of
retirement with a proportionate amount for each complete month.
NS = total service that would have been completed at Normal Pension
Age with a proportionate amount for each complete month.
P = 2/3rds of your Salary at the date of retirement LESS the pension
value of your Personal Plans as calculated in accordance with 2
above.
If you have not attained age 63 at retirement this pension will then be
reduced by 1/4% for each complete month between your retirement date and
your 63rd birthday to take into account its payment from a date earlier
than Normal Pension Age.
<PAGE>
4. LEAVING SERVICE
In the event that you leave our service you will be entitled to a yearly
pension payable for life, commencing at Normal Pension Age, equal to the
pension calculated as in 3 above but with no reduction for early payment.
This pension will be increased between your date of leaving service and
Normal Pension Age by the lesser of 5% per annum compound (with a
proportionate amount for a part-year) and the increase in the General Index
of Retail Prices for the period.
5. LUMP SUM DEATH IN SERVICE BENEFIT
If you die while in our employment and before taking any benefits described
in this letter, there will be payable a lump sum calculated as (A) below,
less (B) below:
(A) a lump sum of three times your Salary at date of death less any lump
sum death benefits payable under the Personal Plans.
(B) The lesser of:
(i) three times your Salary less the Retained Lump Sum Death Benefit,
and
(ii) four times your Maximum Approvable Remuneration less the Retained
Lump Sum Death Benefit.
The lump sum will be payable in accordance with the attached Appendix.
<PAGE>
6. WIDOW'S PENSION
(i) Death in service:
In the event of your death in service, there will be payable a yearly
pension to your widow for life calculated as (A) below, less (B)
below:
(A) 4/9ths of your Salary less any widow's pension payable under the
Personal Plans.
(B) The lesser of
(i) 4/9ths of your Salary less any widow's pension payable under
the Personal Plans,
and
(ii) the lesser of:
(a) 37/108ths of your Maximum Approvable Remuneration
and
(b) 4/9ths of your Maximum Approvable Remuneration less any
widow's pensions payable under the Personal Plans (if
any).
(ii) Death in retirement:
In the event of your death in retirement, there will be payable to
your widow, a yearly pension for life of an amount equal to 2/3rds of
your pension (if any) payable In accordance with this letter.
<PAGE>
7. INCREASES TO PENSION IN PAYMENT
Your pension payable under this letter (if any) will increase in payment at
the rate of 3% per annum compound on each anniversary of your retirement or
death. Any widow's pension payable under this letter will increase at the
same rate from your date of retirement, or date of death if earlier.
8. AMENDMENT OR DISCONTINUANCE
Whilst we fully intend to maintain the benefits described in this letter we
reserve the right to amend or discontinue any, or all of the above
provisions.
Please sign, date and return to us the attached duplicate of this letter to
confirm your agreement to the above benefits.
Yours sincerely,
/S/ P.G. MAJOR
---------------------------------------
(for and on behalf of IFF (GB) Limited)
I hereby confirm my agreement to the above terms and conditions.
Sign: STUART R. MACONOCHIE Date: 2nd July 1990
----------------------------- --------------
(S.R. Maconochie)
<PAGE>
APPENDIX
PROVISIONS RELATING TO PAYMENT OF DEATH BENEFITS
Any benefit arising under paragraph 5 of the attached letter shall be payable in
accordance with the following terms and conditions:
Subject to no such amount being held by the Employer for more than two years
following the date of death of the Member the Employer shall have power to pay
or apply any such amount at such time or times to or for the benefit of such one
or more of your Beneficiaries in such shares proportions and manner and for such
interests as the Employer having absolute discretion may within six months of
your death direct (including and without prejudice to the generality Of the
foregoing the transfer of the whole or part of such amount to trustees to be
held by such trustees for such Beneficiaries upon such trusts and powers
(including discretionary trusts or powers exercisable by such trustees as the
Employer shall decide) and all or any expenses fees stamp duty or other
outgoings incurred for the purpose of or in connection with any such payment or
application no matter in what manner such amount be applied may if the Employer
so decide be deducted from or paid out of the said amount.
PROVIDED THAT in default of exercise of the foregoing power within a period of
two years from the date of your death the Employer shall pay the whole or such
part of the amount not so paid or applied as aforesaid to your Personal
Representatives except that if such amount would vest in the Crown the Duchy of
Lancaster or the Duke of Cornwall as bona vacantia or in a creditor such amount
shall be retained by the Employer.
In making any such transfer as aforesaid the Employer shall be entitled to rely
upon the certificate of any Solicitor or firm at Solicitors to the effect that
the trusts upon which any amount so transferred will be held are such that the
said amount must necessarily be paid to or applied for the benefit of one or
more of the Beneficiaries.
<PAGE>
"Beneficiaries" means and includes the following:
(i) your spouse or any ancestor or descendant (however remote the
relationship) of you or of your spouse and the spouse of any such
ancestor or descendant,
(ii) any brother or sister of you or of your spouse (whether of the whole of
half-blood) and any descendant of any such brother or sister and the
spouse of any such brother or sister or of any such descendant of any
such brother or sister,
(iii) any step-brother or step-sister of you or of your spouse and any
descendant of any such step-brother or step-sister and the spouse of any
such step-brother or step-sister or of any such descendant of any such
step-brother or step-sister,
(iv) any uncle or aunt of you or of your spouse and any descendant of any such
uncle or aunt and the spouse of any such uncle or aunt or of any such
descendant of any such uncle or aunt,
whether in any of the aforesaid cases (1) (ii) (iii) and (iv) you were or
were not liable for or to contribute to their maintenance or support and
including any such person related by adoption.
(v) any other natural person who in the opinion of the Employer has been
dependent or partly dependent on you for maintenance or support,
(vi) any beneficiary entitled to any interest in your estate under any
testamentary disposition made by you and in respect of which a grant of
representation has been obtained; and
(vii) any nominee of yours whom you wish to be treated as a Beneficiary for
this purpose and whose name and address you have notified to the
Employer in writing
<PAGE>
and for the purposes of this definition:
I. "Spouse" includes wife husband widow widower and any former wife or
husband and a person with whom you or other relevant person has gone
through any lawful ceremony of marriage.
II. "descendant" shall include step-children.
III. the class of Beneficiaries shall be closed at your death except that
it shall include persons then en ventre sa mere who if born would have
been Beneficiaries.
IV "ancestor" shall include parents.
"Dependants" means the following:
(i) your wife widow child or children, and
(ii) any natural person who in the opinion of the Employer is financially
dependent upon you or was so dependent at the date of your death.
A child, unless mentally or physically incapacitated shall not be a Dependant
after attaining the age of 18 years or ceasing to receive full-time education or
vocational training, if later, (but not later than age 21 years).
For the purposes of this definition "child" shall include adopted and
step-children of you or your spouse.
<PAGE>
SCHEDULE II
STUART R. MACONOCHIE
SUMMARY OF APARTMENT FURNISHINGS
FOR WHICH THE COMPANY IS PAYING
--------------------------------------------------------------------------------
Description Cost Paid (to be Paid)
by Company
($)
--------------------------------------------------------------------------------
Architect fees, deliveries, 29,997.59
miscellaneous disbursements and
picture hanging
--------------------------------------------------------------------------------
Structural expenditures, 3,031.00
electrical closets, etc.
--------------------------------------------------------------------------------
Electrical and audio-visual, 28,262.53
telephone, faxes
--------------------------------------------------------------------------------
Soft furnishings, fabrics, 47,538.50
curtains and rugs
--------------------------------------------------------------------------------
Free standing furniture 87,102.26
--------------------------------------------------------------------------------
TOTAL 195,931.98
--------------------------------------------------------------------------------
Advance to Mr. Maconochie by (39,583.33)
Company
--------------------------------------------------------------------------------
Paid directly to vendor by (35,000.00)
Company
--------------------------------------------------------------------------------
NET AMOUNT DUE TO MR. 121,348.65
MACONOCHIE FROM COMPANY
--------------------------------------------------------------------------------
<PAGE>
SCHEDULE III
RELEASE
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned, Stuart R.
Maconochie, of 301 West 57th Street, New York, New York 10019 (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
57th Street, New York, New York 10019 (hereinafter referred to as "IFF Inc."),
as such benefits are set forth in a Separation Agreement dated June 15, 2000
("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,
<PAGE>
obligations, 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 the
laws of the United Kingdom and any United States Federal, state or other
governmental statute, regulation or ordinance including, but not limited to, the
2
<PAGE>
following, each as amended to date: (1) Title VII of the Civil Rights Act of
1964, 42 U.S.C. ss. 2000e et seq.; (2) Section 1981 of the Civil Rights Act of
1866, 42 U.S.C.ss.1981; (3) the Americans with Disabilities Act, 42 U.S.C.
ss.12101 et seq. (4) the Age Discrimination in Employment Act, 29 U.S.C. ss.ss.
621-634; (5) the Equal Pay Act of 1963, 29 U.S.C. ss.206; (6) Executive Order
11246; (7) Executive Order 11141; (8) Section 503 of the Rehabilitation Act of
1973, 29 U.S.C. ss.ss.701 et seq.; (9) the Employee Retirement Income Security
Act of 1974, 29 U.S.C. ss.ss.1001 et seq.; and (10) any applicable New York 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 & 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, or the Release of this same date under which IFF Inc. is releasing
claims, if any, that it may assert against Employee.
3
<PAGE>
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 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
4
<PAGE>
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 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
5
<PAGE>
President, General Counsel and Secretary, IFF Inc., 521 West 57th 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 June 19, 2000.
/S/ STUART R. MACONOCHIE
-----------------------------
Stuart R. Maconochie
<PAGE>
SCHEDULE IV
RELEASE
KNOW ALL PERSONS BY THESE PRESENTS that International Flavors & Fragrances
Inc., a New York corporation with a place of business at 521 West 57th Street,
New York, New York 10019 hereinafter referred to as "IFF Inc."), for itself and
all of its subsidiaries, affiliates, successors and assigns and their respective
directors, officers, employees and agents, for and in consideration of the
execution and delivery by Stuart R. Maconochie, or 301 West 57th Street, New
York, New York 10019 (hereinafter referred to as "Releasee") of a Separation
Agreement dated June 15, 2000 (the "Separation Agreement"), DOES HEREBY
IREREVOCABLY AND UNCONDITIONALLY AGREE TO RELEASE, WAIVE and FOREVER DISCHARGE,
except as otherwise provided in this Release, Releasee from all "Claims", as
hereinafter defined, and IFF Inc. waives, releases and covenants not to sue
Releasee 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, promises, agreements, damages,
actions, causes of action, rights, costs, losses and expenses (including
attorneys' fees and costs actually incurred) of any nature whatsoever,
<PAGE>
known or unknown, suspected or unsuspected, which IFF Inc. now has, or claims to
have, or which IFF Inc. at any earlier time had, or claimed to have had, or
which IFF Inc. at any future time may have, or claim to have, against the
Releasee 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 IFF Inc.
The Claims IFF Inc. 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.
IFF Inc. hereby represents that neither it nor anyone acting at its
discretion or on its behalf has filed any complaints, charges, claims, demands
or lawsuits with respect to any Claim (an "Action") against the Releasee with
any governmental agency or any court; that it 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 the Releasee on behalf of IFF Inc., IFF Inc. will request
such agency or court to withdraw the matter. Neither this Release nor the
undertaking in this paragraph shall limit IFF Inc. from pursuing Claims for the
sole purpose of enforcing its rights under the Separation Agreement and the
Release of this same date
2
<PAGE>
under which the Releasee releases Claims, if any, that he might assert against
IFF Inc.
For the purpose of implementing a full and complete release and discharge
of claims, IFF Inc. 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. IFF Inc. 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.
Executed at New York, New York on June 15, 2000.
INTERNATIONAL FLAVORS &
FRAGRANCES INC.
By: /S/ STEPHEN A. BLOCK
--------------------------------
Stephen A. Block
Senior Vice-President
General Counsel and
Secretary
3
<PAGE>
Exhibit 10(b)
RABBI TRUST
FOR
INTERNATIONAL FLAVORS & FRAGRANCES INC.
<PAGE>
THIS AGREEMENT, made this 4th day of October, 2000, between International
Flavors & Fragrances Inc. (hereinafter called the "Corporation") on behalf of
itself and its associated companies, if any, participating in this trust and
First Union National Bank (hereinafter called the "Trustee"); a banking
organization organized and existing under the laws of the State of New York and
Buck Consultants Inc. (hereinafter called the "Benefit Determiner"), a
Corporation whose principal place of business is in the State of New York.
WITNESSETH:
WHEREAS, the Corporation has adopted and sponsors the nonqualified deferred
compensation and welfare benefit plans listed in Appendix A (hereinafter called
the "Plan(s)"); and
WHEREAS, the Corporation has incurred or expects to incur liability under the
terms of such Plan(s) with respect to the individuals participating in such
Plan(s); and
WHEREAS, the Corporation wishes to establish a trust (hereinafter called the
"Trust") and to contribute to the Trust assets that shall be held therein,
subject to the claims of the Corporation's creditors in the event of the
Corporation's Insolvency, as herein defined, until paid to Plan participants and
their beneficiaries in such manner and at such times as specified in the
Plan(s); and
WHEREAS, it is the intention of the parties that this Trust shall constitute an
unfunded arrangement and shall not affect the status of any of the Plan(s) as
unfunded plan(s) maintained for the purposes of providing deferred compensation
for a select group of management or highly compensated employees for purposes of
Title I of the Employee Retirement Income Security Act of 1974 or as unfunded
"excess benefit plan(s)" under Section 3(36) of Title I of ERLSA. as amended
from time to time; and
<PAGE>
Page 2
WHEREAS, it is the intention of the Corporation to make contributions to the
Trust to provide itself with a source of funds to assist it in the meeting of
its liabilities under the Plan(s), and upon the earlier of a Potential Change in
Control, as defined herein, or Change in Control, as defined herein, to provide
the funding of a Legal Defense Fund, as defined herein, to enable the Trustee to
protect the rights of participants and beneficiaries under the Plan(s); and
WHEREAS, it is also the intention of the Corporation to have the Trust available
to associated companies of the Corporation that are participating in the Plan(s)
covered by the Trust, and under the terms of this agreement (hereinafter
referred to as the "Trust Agreement" or "Agreement"), the Corporation shall
operate on behalf of all such associated companies; and
WHEREAS, the Corporation wishes to establish for itself and for each associated
company of the Corporation that is participating in the Plan(s) covered by the
Trust, a separate bookkeeping account (hereinafter referred to as the "Account")
under the Trust, each such Account to include only the contributions from or on
behalf of that company for which the Account was established, investment
earnings and adjustments for charges, payments, expenses, and cash flow on
assets attributable to the contributions to each such Account and with respect
to each Plan, such Account shall maintain a subaccount in order to provide a
potential source of payments under the terms of such Plan(s); and
WHEREAS, except in the case of Insolvency, amounts credited to each Account, and
the earnings thereon. shall be used by the Trustee solely in satisfaction of the
liabilities of the Corporation and its associated companies with respect to the
participants and the beneficiaries in the Plan(s), and expenses as provided
herein, and such utilization shall be in accordance with the procedures set
forth herein; and
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WHEREAS, except as otherwise expressly provided in this Agreement, upon
satisfaction of all liabilities of the Corporation and its associated companies
with respect to all participants and their beneficiaries under their respective
Plan(s), the balance, if any, remaining in the Accounts shall revert to the
Corporation and/or the associated companies, as appropriate, provided, however,
that all amounts attributable to such Plan(s) and attributable to the Legal
Defense Fund shall, at all times, be subject under this Agreement to the claims
of the Corporation's and its associated companies' creditors as hereinafter
provided; and
WHEREAS, the Corporation, on behalf of itself and its associated companies, and
the Trustee have created this Trust to provide assurances to certain management
employees of the Corporation and its associated companies and the Benefit
Determiner acknowledges and will operate in accordance with that intention;
NOW, THEREFORE, in consideration of the premises and mutual and independent
promises herein, including certain fees and expenses paid or payable by the
Corporation and its associated companies to the Trustee and the Benefit
Determiner, the parties hereto covenant and agree as follows:
ARTICLE I
ESTABLISHMENT OF TRUST
1.1 The Corporation hereby deposits with the Trustee for its Account under
the Trust $1,000, which shall become the principal of the Trust to be
held, administered and disposed of by the Trustee as provided in this
Trust Agreement.
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1.2 The Trust hereby established is revocable but, subject to the provisions
of Section 6.2 hereof, shall become irrevocable upon the earlier of a
Potential Change in Control, as defined in Section 16.2 herein, or a
Change in Control, as defined in Section 16.3 herein.
1.3 The Trust is intended to be a grantor trust, of which the Corporation and
each associated company is the grantor, within the meaning of subpart E.
part I, subchapter J, chapter 1, subtitle A of the Internal Revenue Code
of 1986, as amended, and shall be construed accordingly.
1.4 The principal of the Trust, and any earnings thereon, shall be held
separate and apart from other funds of the Corporation and each of the
associated companies and shall be used exclusively for the uses and
purposes of Plan participants, their beneficiaries and the Corporation's
and each associated company's general creditors, and paying the expenses
of administering the Trust as herein set forth. Furthermore, any amounts
attributable to a particular Plan and to a particular associated company
shall be accounted for separately, even though for investment purposes
Trust assets can be commingled. Plan participants and their beneficiaries
shall have no preferred claim on, or any beneficial ownership interest
in, any assets of the Trust. Any rights created under the Plan(s) and
this Trust Agreement shall be mere unsecured contractual rights of Plan
participants and their beneficiaries against the Corporation and, if
applicable, any associated company. Any assets held by the Trust will be
subject to the claims of the Corporation's or associated company's
general creditors, as the case may be, under Federal and state law in the
event of Insolvency, as defined in Section 4.1 herein. The rights of
creditors of any associated company shall be limited to the assets held
for that company under the trust.
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1.5 The Corporation and each associated company, in its sole discretion, may
at any time, or from time to time, make additional deposits of cash or,
subject to Section 5.3, other property (including, in the case of the
Corporation, but not limited to, treasury shares of the Corporation) in
trust with the Trustee to augment the principal to be held, administered
and disposed of by said Trustee as provided in this Trust Agreement. The
Corporation may make contributions on behalf of an associated company.
Any contribution made to the Trust shall be credited to the Account of
the company for which the contribution is made and further allocated
under the Account to the Plan for which the contribution is intended, and
this information will be supplied by the Corporation at the time of the
deposit or allocation. Neither the Trustee nor any Plan participant or
beneficiary shall have any right to compel such additional deposits;
provided, however, upon the earlier of a Potential Change in Control or
Change in Control, if the Trust assets are less than 110% of the benefit
liabilities under the Plan(s), the Corporation and each associated
company shall, as soon as possible, but in no event later than seven days
following such event, make a contribution in cash or property to the
Trust in an amount, determined by the Benefit Determiner, which, taken
together with the value of the existing Trust assets, is no less than
110% of the amount needed to pay each Plan participant and beneficiary
the benefits to which such Plan participant or beneficiary would be
entitled pursuant to the terms of the Plan(s) as of the date on which the
earlier of the Potential Change in Control or Change in Control occurs.
In addition, subject to the provisions of Section 6.2 hereof, after the
earlier of a Potential Change in Control or Change in Control, if the
Trust assets become insufficient to pay all benefits to which
participants or beneficiaries of deceased participants are entitled under
the Plan(s), as determined by the Benefit Determiner, the Corporation or
associated company shall contribute to the Trust the additional amount
necessary to fully fund their respective benefit liabilities under the
Plan(s) as determined by the Benefit
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Determiner. A copy of any such determination by the Benefit Determiner
shall be provided to the Trustee.
1.6 In addition, the Corporation and any associated company may at any time,
and the Corporation shall upon the occurrence of the earlier of a
Potential Change in Control or Change in Control, make a contribution to
a Legal Defense Fund established under Article X of this Trust Agreement.
The primary purpose of these funds would be to enable the Trustee to take
such legal action as it deems necessary after a Change in Control to
protect the participants and beneficiaries entitlement to benefits under
the Plan(s) after a Change in Control occurs and to pay legal expenses
incurred by the Trustee or Benefit Determiner in protecting participants'
and beneficiaries' entitlement to benefit under the Plan(s).
ARTICLE II
DESIGNATION OF BENEFIT DETERMINER AND PAYMENTS TO PLAN PARTICIPANTS
2.1 By its acceptance of this Trust, the Trustee hereby agrees to the
designation by the Corporation of a "Benefit Determiner" under this Trust
Agreement. Prior to a Change in Control, the selection and retention of a
Benefit Determiner shall be the sole responsibility of the Corporation.
In the event a Change in Control occurs, the responsibility for selection
and retention of a Benefit Determiner resides with the Trustee. In that
case, the Trustee in its sole discretion may, but need not, designate a
new Benefit Determiner or may continue to use the same Benefit
Determiner, or in the event said firm does not accept its designation as
Benefit Determiner or accepts said designation and subsequently resigns,
the Trustee shall designate a new Benefit Determiner; provided, however,
any Benefit Determiner newly appointed by the Trustee shall be
independent of the Corporation. In any event, the Benefit Determiner, or
any successor thereto, shall be a
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signatory under the Trust Agreement. The Benefit Determiner may resign at
any time by delivering written notice to the Corporation and Trustee;
provided, however, that no such resignation shall take effect until the
earlier of (a) sixty (60) days from the date of delivery of such notice
to the Corporation or in the event a Change in Control occurs, the
Trustee or (b) the appointment of a successor Benefit Determiner, or such
shorter period as agreed upon in writing by the parties.
2.2 Except for the records dealing solely with the funds and their
investment, which shall be maintained by the Trustee, the Benefit
Determiner shall maintain all the Plan participant and beneficiary
records contemplated by this Trust Agreement.
2.3 Upon the establishment of the Trust or as soon thereafter as practicable,
the Corporation shall furnish to the Benefit Determiner all the
information necessary to determine the benefits payable to or with
respect to each participant and beneficiary under the Plan(s). The
Corporation shall regularly, at least annually, and upon the earlier of a
Potential Change in Control or Change in Control, furnish revised updated
information to the Benefit Determiner. In the event the Corporation
refuses or neglects to provide updated participant information, as
contemplated herein, the Benefit Determiner shall be entitled to rely
upon the most recent information furnished to it by the Corporation or
the participant. The Corporation shall give notice to the Benefit
Determiner at any time there is a change in benefits or personal
information under the Plan(s).
2.4 The Benefit Determiner (if the Corporation is unable or unwilling to do
so) shall periodically prepare a benefit statement in respect to each
participant's benefits under the Plan(s) and shall furnish a copy of same
to the participant or his or her beneficiary and to the Corporation.
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2.5 Upon the direction of the Corporation, before or after a Potential Change
in Control or Change in Control occurs, or upon the proper application,
after a Change in Control occurs, of a participant or beneficiary of a
deceased participant who is entitled to benefits under the Plan(s) to the
Trustee, the Corporation, or if the Corporation is unable, unwilling or
otherwise refuses to do so, the Benefit Determiner, shall prepare a
certification to the Trustee that a participant's or beneficiary's
benefits under the Plan(s) have become payable. Such certification shall
include the amount of such benefits, the manner of payment and personal
information regarding the participant or beneficiary, including the
participant's or beneficiary`s name, social security number, and last
known address.
2.6 Notwithstanding anything herein to the contrary, the Benefit Determiner,
if required by this Trust, shall calculate the benefit of each
participant, or beneficiary under a Plan. To the extent a participant's,
or his or her beneficiary's, benefit is payable from a Plan, the Benefit
Determiner shall have full discretionary authority to resolve any
question which shall arise under the Plan as to any person's eligibility
for benefits, the calculation of benefits, the form. commencement date,
frequency, duration of payment, or the identity of the beneficiary. Such
question shall be resolved by the Benefit Determiner under rules
uniformly applicable to all person(s) or employee(s) similarly situated.
2.7 Upon the receipt of such certified statement and such appropriate
Federal, state and local tax withholding information as may be available
from the Corporation or the Benefit Determiner, the Trustee, upon
direction from the Corporation, (or in the case of a Change in Control,
if the Corporation is unable, unwilling, or otherwise refuses to do so,
upon direction of the Benefit Determiner) shall, as soon as practicable.
commence cash distributions from the Trust in
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accordance therewith to the person or persons so indicated, and with
respect to taxes required to be withheld, to the Corporation, and the
Benefit Determiner shall charge the appropriate Account(s) under the
Trust. The Trustee shall furnish a copy of such certification to the
participant or beneficiary of the deceased participant. The Corporation
or an associated company, as the case may be, shall have full
responsibility for the payment of all withholding taxes to the
appropriate taxing authority and shall furnish each participant or
beneficiary with the appropriate tax information form evidencing such
payment and the amount thereof.
2.8 Notwithstanding anything herein to the contrary, the Corporation on
behalf of itself or any associated company, instead of the Trustee, may
make payment of benefits directly to Plan participants or their
beneficiaries as they become due under the terms of the Plan(s). The
Corporation shall notify the Trustee or the Benefit Determiner of its
decision to make payment of benefits directly prior to the time amounts
are payable to participants or their beneficiaries.
2.9 Nothing provided in this Trust Agreement shall relieve the Corporation or
any of the participating associated companies of their obligations and
liabilities to pay the benefits provided under the Plan(s) except to the
extent such obligations and liabilities are met by application of Trust
assets or by payments made directly by the Corporation or an associated
company, as the case may be.
ARTICLE III
CORPORATION RESPONSIBILITY REGARDING DOCUMENTATION, CONTRIBUTIONS,
AND INDEMNIFICATION
3.1 The Corporation shall provide the Trustee and Benefit Determiner with a
certified copy of the Plan(s) and all amendments thereto and of the
resolutions of the Board of Directors of the
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Corporation approving the Plan(s) and all amendments thereto, promptly
upon their adoption. After the execution of this Trust Agreement, the
Corporation shall promptly file with the Trustee and the Benefit
Determiner a certified list of the names and specimen signatures of those
officers of the Corporation and any delegate authorized to act for it.
The Corporation shall promptly notify the Trustee and the Benefit
Determiner of the addition or deletion of any person's name to or from
such list, respectively. Until receipt by the Trustee and/or the Benefit
Determiner of notice that any person is no longer authorized to so act,
the Trustee or the Benefit Determiner may continue to rely on the
authority of the person. All certifications, notices and directions by
any such person or persons to the Trustee or the Benefit Determiner shall
be in writing signed by such person or persons. The Trustee and the
Benefit Determiner may rely on any such certification, notice or
direction purporting to have been signed by or on behalf of such person
or persons that the Trustee or the Benefit Determiner believes to have
been signed thereby. The Trustee and the Benefit Determiner may rely on
any certification, notice or direction of the Corporation that the
Trustee or the Benefit Determiner believes to have been signed by a duly
authorized officer or agent of the Corporation. The Trustee and the
Benefit Determiner shall have no responsibility for acting or not acting
in reliance upon any certification, notice or directions believed by the
Trustee or the Benefit Determiner to have been so signed by a duly
authorized officer or agent of the Corporation. The Corporation shall be
responsible for keeping accurate books and records with respect to the
employees of the Corporation and associated companies, their compensation
and their rights and interests in the Trust under the Plan(s). The
Trustee may rely on all certifications issued by the Benefit Determiner
without any obligation to verify the accuracy of the calculations or
information contained therein.
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3.2 The Corporation and each associated company shall make its contributions
to the Trust in accordance with appropriate corporate action. The Trustee
shall have the responsibility, after the earlier of a Potential Change in
Control or Change in Control, to compel the Corporation or associated
company under Section 1.5 hereof to make additional deposits or take
other action to compel payments in amounts determined by the Benefit
Determiner to be necessary, in accordance with Section 1.5, to fully fund
the Trust to pay all benefits to which participants or beneficiaries of
deceased participants are entitled under the Plan(s). The Trustee shall
not be held responsible for the Corporation's or associated companies'
refusal to fund as required herein. Any such contributions or payments
shall be made to the Trust and shall be properly allocated to the
appropriate Accounts. If more than one Plan is covered by the Trust or if
more than one employer is participating in the Trust, the Corporation and
the associated companies shall indicate the amount of its contributions
intended for each Plan and for each employer's Account. The Trustee shall
also have the responsibility to compel the Corporation and associated
companies to make, after the occurrence of the earlier of a Potential
Change in Control or Change in Control, the required contributions under
Article X to the Legal Defense Fund. The Corporation shall be required to
notify the Trustee of the occurrence of any Potential Change in Control
or Change in Control as promptly as practicable following the occurrence
thereof. Anything else contained in this Section 3,2 to the contrary
notwithstanding, the Trustee shall not have the responsibility to compel
the Corporation or the associated companies to make the contributions
required pursuant to Section 1.5 or Article X hereof unless and until the
Trustee has actual knowledge or has received notice from the Corporation
that either a Potential Change in Control or Change in Control, as
applicable, shall have occurred.
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3.3 The Corporation shall indemnify and hold harmless the Trustee for any
liability or expenses, including without limitation reasonable attorney's
fees, incurred by the Trustee with respect to holding, managing,
investing or otherwise administering the Trust, other than those
resulting from the Trustee's gross negligence or willful misconduct.
3.4 The Corporation shall indemnify and hold harmless the Benefit Determiner
for any liability or expenses, including without limitation reasonable
attorney's fees, incurred by the Benefit Determiner with respect to
keeping the participants' benefits records and reporting thereon,
certifying benefit information to all parties, including the Trustee,
participants or beneficiaries, and the Corporation, and any other
business properly coming before the Benefit Determiner in connection to
carrying out its obligations under this Trust Agreement, other than those
resulting from the Benefit Determiner's gross negligence or willful
misconduct.
3.5 If the Trustee or the Benefit Determiner undertakes or defends any
litigation arising in connection with this Trust, including, but not
limited to any litigation undertaken or defended against the Corporation,
the Corporation agrees to indemnify the Trustee and the Benefit
Determiner against the Trustee's or the Benefit Determiner's reasonable
costs, expenses and liabilities (including, without limitation,
attorney's fees and expenses) relating thereto and to be primarily liable
for such payments. If the Corporation does not pay such costs, expenses
and liabilities in a reasonably timely manner, the Trustee or the Benefit
Determiner may obtain payment from the Trust other than the Legal Defense
Fund, except as permitted under Section 1.6 and Article X. The
Corporation or associated company shall reimburse the Trust for any such
payments.
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ARTICLE IV
TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO PARTICIPANTS AND BENEFICIARIES
WHEN EMPLOYER IS INSOLVENT
4.1 If a participating employer is Insolvent, as hereinafter defined, the
Trustee shall, subject to Section 4.2 hereof, cease payment of benefits to
Plan participants of that Insolvent employer and their beneficiaries. The
Corporation or an associated company, as the case may be, shall be
considered "Insolvent" for purposes of this Trust Agreement if (a) the
Corporation or the associated company is unable to pay its debts as they
become due, or (b) the Corporation or the associated companY is subject to
a pending proceeding as a debtor under the United States Bankruptcy Code.
Payments to Plan participants and their beneficiaries of an employer who is
not Insolvent shall not be affected by the Insolvency of another employer.
4.2 At all times during the continuance of this Trust, as provided in Section
1.4 hereof, the principal and income of the Trust held for the benefit of a
particular employer shall be subject to claims of general creditors of that
employer under Federal and state law as set forth below.
(a) The Board of Directors of the Corporation and the Chief Executive
Officer of the Corporation shall have the duty to inform the Trustee
in writing of the Corporation's or any of the associated companies'
Insolvency. If a person claiming to be a creditor of the Corporation
or of an associated company alleges in writing to Trustee that the
Corporation or an associated company has become Insolvent, the Trustee
shall determine whether the Corporation or an associated company is
Insolvent and, pending such determination, the Trustee shall
discontinue payment of benefits to Plan participants of that employer
and their beneficiaries.
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(b) Unless the Trustee has actual knowledge of the Corporation's or an
associated company's Insolvency, or has received notice from the
Corporation or a person claiming to be a creditor alleging that the
Corporation or an associated company is Insolvent, the Trustee shall
have no duty to inquire whether the Corporation or an associated
company is Insolvent. The Trustee may in all events rely on such
evidence concerning the Corporation's or an associated company's
solvency as may be furnished to the Trustee and that provides the
Trustee with a reasonable basis for making a determination concerning
the Corporation's or an associated company's solvency.
(c) If at any time the Trustee has determined that the Corporation or an
associated company is Insolvent, the Trustee shall discontinue and not
make any payments to Plan participants of that employer or their
beneficiaries and shall hold the assets of the Trust held for the
benefit of the Corporation's or an associated company's, as the case
may be, general creditors. Nothing in this Trust Agreement shall in
any way diminish any rights of Plan participants or their
beneficiaries to pursue their rights as general creditors of the
Corporation or an associated company with respect to benefits due
under the Plan(s) or otherwise at their own expense.
(d) The Trustee shall resume the payment of benefits to Plan participants
and their beneficiaries in accordance with Article II of this Trust
Agreement only after the Trustee has determined that the affected
employer is not Insolvent (or is no longer Insolvent).
4.3 Provided that there are sufficient assets held on behalf of a participating
employer, if the Trustee discontinues the payment of benefits from the
Trust to Plan participants and their beneficiaries pursuant to Section 4.2
hereof and subsequently resumes such payments, the first payment following
such discontinuance shall include the aggregate amount of all payments due
to such Plan
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participants and their beneficiaries under the terms of the Plan(s) for the
period of such discontinuance, less the aggregate amount of any payments
made to such Plan participants and their beneficiaries by the Corporation
or an associated company in lieu of the payments provided for hereunder
during any such period of discontinuance. If Trust assets held in Account
on behalf of the Corporation or associated company are insufficient to make
such payments in full, payments shall be paid on a pro rata basis
determined by comparing the assets available under the Account to the total
payments due under the Plan(s) to the participants of that company and
their beneficiaries.
ARTICLE V
INVESTMENT AUTHORITY
5.1 Prior to a Potential Change in Control or Change in Control, the
Corporation shall direct the Trustee as to the investment of all assets
within the Trust. Subsequent to a Potential Change in Control or Change in
Control, the Trustee shall have full discretion in and sole responsibility
for investment, management and control of the Trust assets. The Trustee
shall exercise this responsibility consistent with the underlying purpose
of the Trust and consistent with the underlying purpose of a Plan under
which participants have made deemed investments elections with respect to
their benefits under the Plan. Plans in which deemed investment elections
have been made should be invested by the Trustee in amounts that
approximate participant liabilities and in investments that replicate those
elections, or in similar type investments, as determined by the Trustee.
Plans for which no distinct deemed investment elections are made by
participants or by the Plan should be invested in a suitable portfolio of
high quality government and agency securities providing for returns that
approximate the discount rate applicable to the Plan. Trustee may rely
upon information provided by Benefit Determiner in order to determine
investment selections. Trustee may reallocate investments periodically to
update the investment mix in accordance with
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Section 5 1 as often as Trustee deems appropriate. An investment direction
by the Corporation shall be ineffective for investments made after a Change
in Control occurs. All rights associated with Trust assets shall be
exercised by the Trustee or the person designated by the Trustee, and shall
in no event be exercisable by participants or beneficiaries.
5.2 Powers of Trustee. Except as otherwise specifically provided in this Trust
Agreement, the Trustee is authorized and empowered:
(a) To purchase, hold, sell, invest and reinvest the Trust assets,
together with income therefrom;
(b) To hold, manage and control all property at any time forming part of
the Trust assets:
(c) To sell, convey, transfer, exchange and otherwise dispose of the Trust
assets from time to time in such manner, for such consideration and
upon such terms and conditions as it shall determine;
(d) To make payments from the Trust as provided hereunder:
(e) To cause any property of the Trust to be issued, held or registered in
the individual name of the Trustee, or in the name of its nominee, or
in such form that title will pass by delivery; provided, however, that
the records of the Trustee shall indicate the true ownership of such
property; and
(f) To do all other acts necessary or desirable for the proper
administration of the Trust assets as though the absolute owner
thereof, and to exercise all the further rights, powers, options and
privileges granted, provided for or vested in trustees generally under
applicable Federal or New York law, as amended from time to time, it
being intended that, except as herein otherwise provided, the powers
conferred upon the Trustee herein shall not be
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construed as being in limitation of any authority conferred by law,
but shall be construed as in addition thereto.
5.3 Notwithstanding anything else contained herein to the contrary, prior to
the occurrence of a Change in Control, the Corporation may contribute
securities of the Corporation (including treasury and authorized but
unissued securities) to the Trust or may direct the Trustee to invest
assets of the Trust in such securities, and shall direct the Trustee as to
the continued holding of any Corporation securities, including treasury
securities and authorized but unissued securities (whether contributed to
the Trust by the Corporation or purchased at the direction of the
Corporation); provided that the Corporation shall not make a contribution
in the form of its stock or a direction to the Trustee to acquire or hold
such stock by the Corporation shall not be controlling or in effect, unless
and until the Trustee has a Registration Rights Agreement in effect with
the Corporation. The Trustee shall, until a Change in Control occurs, vote
any securities of the Corporation it owns in the same way (determined on a
percentage basis) as employees vote their shares of the Corporation's stock
under the International Flavors & Fragrances Inc. Retirement Investment
Fund Plan. In the event of any tender or exchange offer for all or any part
of any class of Corporation security, the Trustee shall, until a Change in
Control occurs, accept or reject such offer as to all or any portion of
such class of security held under the Trust in the same proportion as the
employees accept or reject such tender or exchange offer with respect to
their shares under the International Flavors & Fragrances Inc. Retirement
Investment Fund Plan. The Corporation shall assure that aggregate
information concerning the action taken with respect to Corporation stock
by participants under that plan shall be promptly supplied by the trustee
of that plan to the Trustee, while maintaining the confidentiality of
instructions given by individual participants. Except in connection with a
tender or exchange offer as described above, prior to a Change in Control
securities of the Corporation held by the Trust will not be sold by the
Trustee for the purpose of providing benefits hereunder or
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otherwise applied by the Trustee for such purpose. After such Change in
Control occurs, the Trustee can, subject to applicable securities law
requirements, sell or dispose of any Corporation securities it owns in
order to pay benefits due under the Plan(s) or to pay expenses or
liabilities arising under the Trust. The Corporation shall take such action
and make such payments as are necessary to assure that the Trustee shall
have full registration rights under Federal and state securities laws with
respect to securities of the Corporation held by it. The Corporation shall
indemnify the underwriters in any public offering of Corporation securities
and pay all expenses related to such offering and if not paid by the
Corporation such amounts shall be a charge against the Trust and shall
constitute a lien in favor of the Trustee until paid by the Corporation.
5.4 Except as provided in Section 5.3 hereof, the Corporation shall have the
right at any time, and from time to time, in its sole discretion, to
substitute assets of equal fair market value for any asset held by the
Trust, provided that after a Change in Control occurs only cash can be
substituted for assets held by the Trust. This right is exercisable by the
Corporation in a nonfiduciary capacity without the approval or consent of
any person in a fiduciary capacity. Notwithstanding anything in this
Agreement to the contrary, the Trustee shall have no duty to review any
assets substituted or any assets otherwise held prior to a Change in
Control with respect to prudence or proper diversification.
ARTICLE VI
NO DIVERSION OF ASSETS AFTER CHANGE IN CONTROL BEFORE FULL BENEFIT PAYMENT
6.1 After a Change in Control occurs, the Corporation shall have no right or
power to direct the Trustee to return to the Corporation or to divert to
others any of the Trust assets before all payment of benefits has been made
to Plan participants and their beneficiaries pursuant to the terms of the
Plan(s).
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6.2 Prior to the occurrence of a Change in Control, the Corporation shall be
permitted to withdraw from the Trust all or a portion of the assets of the
Trust: provided that the provisions of this Section 6.2 shall not be
applicable during the pendency of or during the one year period following
the cessation of a Potential Change in Control. In addition, prior to the
occurrence of a Change in Control, any cash dividends paid on shares of
stock of the Corporation held in the Trust shall be transferred by the
Trustee to the Corporation as soon as administratively practicable
following the date or dates such dividends are paid.
ARTICLE VII
DISPOSITION OF INCOME
7.1 Except as provided in Section 6.2 hereof, during the term of this Trust,
all income received by the Trust, net of expenses and taxes, shall be
accumulated and reinvested and the Corporation and associated companies
shall pay any Federal, state or local taxes on the Trust or any part
thereof and on the income therefrom attributable to the assets held on
their behalf under the Trust.
ARTICLE VIII
ACCOUNTING BY TRUSTEE
8.1 The Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions made or required to be
made, including such records as shall be agreed upon in writing between the
Corporation and Trustee. Within 30 days following the close of each
calendar year and within 30 days after the removal or resignation of the
Trustee, the Trustee shall deliver to the Corporation a written account of
its administration of the Trust during such year or during the period from
the close of the last preceding year to the date of such removal or
resignation, setting forth all investments, receipts, disbursements and
other transactions effected by
<PAGE>
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it, including a description of all securities and investments purchased and
sold with the cost or net proceeds of such purchases or sales (accrued
interest paid or receivable being shown separately), and showing all cash,
securities and other property held in the Trust at the end of such year or
as of the date of such removal or resignation, as the case may be. Upon the
expiration of 90 days following the filing of each written account with the
Corporation, the Trustee shall be forever released and discharged from all
liability and further accountability to the Corporation and any other
person with respect to accuracy of such account and the propriety of all
acts or failures to act reflected in such account. The foregoing sentence
shall not apply if within the 90-day period, a written objection to the
filing is sent to the Trustee by the Corporation: provided that such
sentence shall apply if the written objection is resolved by the Trustee
to the Corporation's satisfaction.
ARTICLE IX
RESPONSIBILITY OF TRUSTEE
9.1 (a) The Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting
in like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims;
provided, however, that the Trustee shall incur no liability to any
person for any action taken pursuant to a direction, request or
approval given by the Corporation or by the Benefit Determiner which
is contemplated by, and in conformity with, the terms of the Plan(s)
or this Trust Agreement and is given in writing by the Corporation or
by the Benefit Determiner. Notwithstanding anything in the previous
sentence to the contrary, the Trustee may assume that any calculation
made by the Benefit Determiner has been made in accordance with terms
of the Plan(s). In the event of a dispute between the Corporation
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and a party, the Trustee may, subject the provisions of Section 11.1,
at the expense of the Trust apply to a court of competent jurisdiction
to resolve the dispute.
(b) The Trustee or the Benefit Determiner may consult with legal counsel
(who may also be counsel for the Corporation generally) with respect
to any of its duties or obligations hereunder at the expense of the
Trust, subject to the provisions of Section 11.1.
(c) The Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to assist it in
performing any of its duties or obligations hereunder at the expense
of the Trust, subject to the provisions of Section II.1.
(d) The Trustee shall have, without exclusion, all powers conferred on
trustees by applicable law, unless expressly provided otherwise
herein: provided, however, that if an insurance policy is held at the
direction of the Corporation as an asset of the Trust, the Trustee
shall have no power to name a beneficiary of the policy other than the
Trust, to assign the policy (as distinct from conversion of the policy
to a different form) other than to a successor trustee, or to loan to
any person the proceeds of any borrowing against such policy, unless
directed to do so by the Corporation to either keep the policy in
force or to pay benefits.
(e) Notwithstanding any powers granted to the Trustee pursuant to this
Trust Agreement or applicable law, the Trustee shall not have any
power that could give this Trust the objective of carrying on a
business and dividing the gains therefrom. within the meaning of
Section 301.7701-2 of the Procedure and Administrative Regulations
promulgated pursuant to the Internal Revenue Code.
<PAGE>
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ARTICLE X
LEGAL DEFENSE FUND
1O.1 (a) The Trustee shall maintain for bookkeeping purposes a separate account
(the "Legal Defense Fund") to provide for the payment of legal expenses
incurred by the Trustee after a Change in Control to protect
participants' or their beneficiaries entitlement to benefits under the
Plan(s) after a Change in Control. The amounts credited to the Legal
Defense Fund cannot be used to pay benefits due under the Plan(s) or
expenses of the Trust except as provided herein. Separate bookkeeping
accounts shall be maintained by Trustee to identify Corporation and
associated companies contributions to the Legal Defense Fund. The
rights of creditors of any associated company Legal Defense Fund shall
be limited to the assets held for that company under the trust.
The Corporation or associated company within seven days following the
earlier of a Potential Change in Control or Change in Control, shall
contribute cash to the Legal Defense Fund in an amount not less than
10% of the total benefit liability under the Plan(s) as determined by
the Benefit Determiner under Section 1.5. The Corporation or associated
company may make all or a portion of that contribution at any time
prior to the earlier of a Potential Change in Control or Change in
Control.
(b) The Trustee shall use the funds in the Legal Defense Fund to pay for
reasonable legal and other expenses incurred by the Trustee or Benefit
Determiner in protecting the participants' and beneficiaries
entitlement to benefits under the Plan(s) after a Change in Control.
<PAGE>
Page 23
(c) In operating under the terms of this Article X the Trustees shall
pursue all claims of participants and beneficiaries for benefits due
them under the Plan(s) other than those claims which would be
considered frivolous.
(d) The assets in the Legal Defense Fund can be used, if necessary, to pay
benefits to participants and beneficiaries and to pay expenses
reimbursable under Section 3.5 but on1y after the satisfaction of
liabilities attributable to participants' and beneficiaries' benefits
under the Plan as certified by the Benefit Determiner.
(e) The provisions of Article VI are applicable to this Article X.
ARTICLE XI
COMPENSATION AND EXPENSES OF TRUSTEE AND BENEFIT DETERMINER
11.1 The Corporation shall pay to the Trustee its reasonable expenses for
the management and administration of the Trust, including without
limitation advances for or prompt reimbursement of reasonable expenses
of counsel and other agents employed by the Trustee. The Corporation
shall also pay to the Trustee compensation for its services as Trustee
hereunder, the amount of which shall be agreed upon from time to time
by the Corporation and the Trustee in writing; provided, however, that
if the Trustee forwards an amended fee schedule to the Corporation
requesting its agreement thereto and the Corporation fails to object
thereto within forty-five (45) days of its receipt, the amended fee
schedule shall be deemed to be agreed upon by the Corporation and the
Trustee. Such expenses and compensation shall be a charge on the Trust
and shall constitute a lien in favor of the Trustee until paid by the
Corporation.
11.2 The Corporation shall pay to the Benefit Determiner reasonable
compensation for its services as the Benefit Determiner hereunder, the
amount of which shall be agreed upon from time to time by
<PAGE>
Page 24
the Corporation (or the Trustee in the event of a Change in Control)
and the Benefit Determiner in writing, and shall reimburse reasonable
expenses, including legal expenses, of the Benefit Determiner in
fulfilling its obligations under the Trust. Such expenses and
compensation shall be a charge on the Trust and shall constitute a lien
in favor of the Benefit Determiner until paid by the Corporation.
ARTICLE XII
RESIGNATION AND REMOVAL OF TRUSTEE AND APPOINTMENT OF SUCCESSOR TRUSTEE
12.1 The Trustee may resign at any time by delivering written notice thereof
to the Corporation, provided, however, that no such resignation shall
take effect until the earlier of (a) sixty (60) days from the date of
delivery of such notice to the Corporation or (b) the appointment of a
successor trustee, or such shorter period as agreed upon in writing by
the parties.
12.2 The Trustee may be removed at any time by the Corporation before or
after a Change in Control described in Section 16.3 pursuant to a
resolution of the Board of Directors of the Corporation, upon delivery
to the Trustee of a certified copy of such resolution and sixty (60)
days' written notice of (a) such removal and (b) the appointment of a
successor trustee, or such shorter period as agreed upon in writing by
the parties; provided that after a Change in Control, such removal
shall occur only if consented to by two-thirds of the participants
covered under the Trust; and further provided, such participant consent
shall not be required after the sixth anniversary of a Change in
Control.
12.3 Upon the resignation or removal of the Trustee, a successor trustee
with balance sheet assets of at least 40 billion dollars shall be
appointed by the Corporation. Such successor trustee shall be a
<PAGE>
Page 25
bank or trust company established under the laws of the United States
or a State within the United States. Such appointment shall take effect
upon the delivery to the Trustee of (a) a written appointment of such
successor trustee, duly executed by the Corporation, and (b) a written
acceptance by such successor trustee, duly executed thereby. Any
successor trustee shall have all the rights, powers and duties granted
the Trustee hereunder.
12.4 If, within sixty (60) days of the delivery of the Trustee's written
notice of resignation, a successor trustee shall not have been
appointed, the Trustee may apply to any court of competent jurisdiction
for the appointment of a successor trustee.
12.5 Upon the resignation or removal of the Trustee and the appointment of a
successor trustee, and after the acceptance and approval of its
account, the Trustee shall transfer and deliver the Trust to such
successor trustee. Under no circumstances shall the Trustee transfer or
deliver the Trust to any successor trustee which is not a bank or trust
company as hereinabove defined.
12.6 If the Trustee resigns or is removed, a successor trustee shall be
appointed, in accordance with Section 12.3, by the effective date of
resignation or removal under Section 12.1 or 12.2 of this Article. If
no such appointment has been made. the Trustee may apply to a court of
competent jurisdiction for appointment of a successor trustee or for
instructions. All expenses of the Trustee in connection with the
proceeding shall be allowed as administrative expenses of the Trust.
<PAGE>
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ARTICLE XIII
AMENDMENT
13.1 This Trust Agreement may be amended, in whole or in part, including
Appendix A hereof, at any time and from time to time, by the
Corporation, pursuant to a resolution of the Board of Directors of the
Corporation, by delivery to the Trustee of a certified copy of such
resolution and a written instrument duly executed and acknowledged in
the same form as this Trust Agreement, except that the duties and
responsibilities of the Trustee shall not be increased without the
Trustee's written consent. The ability to amend shall include the right
to spin off the assets and/or liabilities attributable to a
participating employer under this Trust to an existing or
newly-established Trust or other vehicle which provides the same
protection of a participant's interest as this Trust does. The approval
of such spinoff by the affected employer shall be required. Any such
spinoff shall be consistent with the rules used under Section 414(l)
of the Internal Revenue Code applicable to pension plans qualified
under Section 401(a) of the Internal Revenue Code. Notwithstanding the
foregoing, (i) no such amendment shall conflict with the substantive
terms of the Plan(s) or permit withdrawal of any funds held under the
Trust except as permitted under Article V or VI and (ii) during the
pendency of a Potential Change in Control, during the one-year period
following the cessation of a Potential Change in Control, and
following the occurrence of a Change in Control (such periods being
referred to collectively as the "Protected Period"), this Trust
Agreement may not be amended by the Corporation in any manner adverse
to participants and beneficiaries of the Plans, other than for reasons
to maintain, on the advice of counsel, the Trust's status as an
unfunded grantor trust.
<PAGE>
Page 27
ARTICLE XIV
TERMINATION
14.1 The Trust established pursuant to this Trust Agreement may be
terminated by the Corporation at any time; provided, however, that
during the Protected Period, the Trust may not be terminated by the
Corporation prior to the satisfaction of all liabilities with respect
to all participants in the Plan(s) and their beneficiaries and all
other liabilities of the Trust. Upon receipt of a written certification
from the Benefit Determiner that all liabilities have been satisfied
with respect to all participants in the Plan(s) and their beneficiaries
and upon satisfaction of all other liabilities of the Trust, the
Corporation, pursuant to a resolution of its Board of Directors, may
terminate the Trust upon delivery to the Trustee of (a) a certified
copy of such resolution, (b) an original certification of the Benefit
Detenniner that all such liabilities (including for this purpose
unpaid Trustee and Benefit Determiner fees and expenses other than fees
and expenses to be paid from the Legal Defense Fund) have been
satisfied and (c) a written instrument of termination duly executed and
acknowledged in the same form as this Trust Agreement.
14.2 Upon the termination of the Trust in accordance with Section 14.1,
the Trustee shall, after the acceptance and approval of its account,
distribute their share of the assets of the Trust (including the
assets of the Legal Defense Fund) to the Corporation and to the
associated companies, as the case may be. Upon completing such
distribution, the Trustee shall be relieved and discharged. The powers
of the Trustee shall continue as long as any part of the Trust remains
in its possession.
<PAGE>
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ARTICLE XV
MISCELLANEOUS
15.1 This Trust Agreement shall be construed and interpreted under, and the
Trust hereby created shall be governed by, the laws of the State of New
York insofar as such laws do not contravene any applicable Federal
laws, rules or regulations.
15.2 Neither the gender nor the number (singular or plural) of any word
shall be construed to exclude another gender or number when a different
gender or number would be appropriate.
15.3 No right or interest of any participant or beneficiary under the
Plan(s) in the Trust shall be transferable or assignable or shall be
subject to alienation, anticipation or encumbrance, and no right or
interest of any participant or beneficiary in the Plan(s) or in the
Trust shall be subject to any garnishment, attachment or execution,
except as otherwise required by law. Notwithstanding the foregoing, the
Trust shall at all times remain subject to claims of general creditors
of the Corporation and associated companies, as the case may be, in the
event the Corporation or an associated company becomes Insolvent as
provided in this Trust Agreement.
15.4 This Trust Agreement shall be binding upon and inure to tile benefit of
any successor to the Corporation or its business as the result of
merger, consolidation, reorganization, transfer of assets or otherwise
and any subsequent successor thereto. In the event of such merger,
consolidation, reorganization, transfer of assets or other similar
transaction, the successor to the Corporation or its business or any
subsequent successor thereto shall promptly notify the Trustee in
writing of its successorship and furnish the Trustee and the Benefit
Determiner with the information specified in Section 3.1 of this Trust
Agreement. In no event shall any such transaction described herein
<PAGE>
Page 29
suspend or delay the rights of the Plan participants or the
beneficiaries of deceased participants to receive benefits hereunder.
15.5 Communications to the Trustee shall be sent to the Trustee or as
directed by the Trustee to the Benefit Determiner. No communication
shall be binding upon the Trustee or the Benefit Determiner until it is
received in written form by the Trustee or the Benefit Determiner.
Communication to the Corporation shall be sent in written form to the
Corporation's principal offices or to such other address as the
Corporation may specify in writing. Communication shall be deemed
received upon the date of delivery if given personally or, if given by
mail, upon receipt thereof.
15.6 Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating
the remaining provisions hereof.
15.7 Benefits payable to Plan participants and their beneficiaries under
this Trust Agreement may not be anticipated, assigned (either at law or
in equity), alienated, pledged, encumbered or subjected to attachment,
garnishment, levy, execution or other legal or equitable process,
except as otherwise required by law.
15.8 Anything in this Agreement to the contrary notwithstanding the rights
of the Trustee and Benefit Determiner under Section 3.3, 3.4, 3.5, 7.1,
11.1, and 11.2 shall survive the termination of this Agreement.
<PAGE>
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ARTICLE XVI
POTENTIAL CHANGE IN CONTROL OR CHANGE IN CONTROL
16.1 Each participant and beneficiary of a deceased participant is an
intended beneficiary under this Trust, and shall, after a Change in
Control occurs, be entitled to enforce all terms and provisions hereof
with the same force and effect as if such person had been a party
hereto at his own expense.
16.2 For purposes Of this Trust, a Potential Change in Control shall be
deemed to have occurred if there shall have occurred any of the
following:
(i) The Company enters into an agreement, the consummation of which
would constitute a Change in Control;
(ii) The Company or any "person" as such term is used in Section 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (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), publicly announces
its intention to take or to consider taking such action which, if
consummated, would constitute a Change in Control, or
(iii) Any "person" (as referred to in (ii) above), acquires voting
securities of the Company after September 1, 2000 and immediately
thereafter is a "15% Beneficial Owner." For purposes of this
provision, a "15% Beneficial Owner" shall mean a person who is
the "beneficial owner" (as defined in Rule l3d-3 under the
Exchange Act), directly or indirectly, of securities of the
Company representing 15% or more of the combined voting
<PAGE>
Page 31
power of the Company's then-outstanding voting securities;
provided, however, that the term "l5% 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 "15%
Beneficial Owner" (a "PCIC Existing Shareholder"), including any
group that may be formed which is comprised solely of PCIC
Existing Shareholders, unless and until such time after February
20, 1990 as any such PCIC 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
"15% Beneficial Owner" shall not include any person who shall
become the beneficial owner of 15% 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 15% Beneficial Owner in accordance with
this Section 16.2. The Trustee may rely upon Corporation's
notification as to the occurrence of a Potential Change in
Control. An authorized designee will notify Trustee of such
occurrence in writing.
16.3 For purposes of this Trust, a Change in Control shall be deemed to have
occurred if there shall have occurred any of the following:
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Page 32
(i) Any "person," (as defined in Section 16.2 hereof), 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 l3d-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 16.3;
(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
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Page 33
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 consummation 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
having a similar effect).
The Trustee may rely upon Corporation's notification as to the occurrence of a
Change in Control. An authorized designee will notify Trustee of such occurrence
in writing.
<PAGE>
Page 34
IN WITNESS WHEREOF, the parties have executed this Trust Agreement as of the
date written above.
INTERNATIONAL FLAVORS & FRAGRANCES INC.
By /s/ Stephen A. Block
______________________________________________
Name: Stephen A. Block
Title: Senior Vice President, General Counsel
& Secretary
FIRST UNION NATIONAL BANK
By /s/ Robert E. Hord Jr.
______________________________________________
Name: Robert E. Hord Jr.
Title: Vice President
BUCK CONSULTANTS INC
By /s/ Karl W. Lehwater
______________________________________________
Name: Karl W. Lehwater
Title: Secretary
ASSOCIATED COMPANY
By ______________________________________________
Name:
Title:
By ______________________________________________
Name:
Title:
By ______________________________________________
Name:
Title:
By ______________________________________________
Name:
Title:
<PAGE>
Page 35
APPENDIX A
The following plans and/or programs of International Flavors & Fragrances Inc.
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Management Incentive Compensation Plan
Special Executive Bonus Plan
Supplemental Retirement Investment Plan
Supplemental Retirement Plan (Pension)
Executive Separation Policy
Post Employment Medical and Life Insurance Policy
