EXHIBIT 10.8(a)
INSTRUMENT AMENDING
LYONDELL PETROCHEMICAL COMPANY
SUPPLEMENTAL EXECUTIVE BENEFIT PLANS
TRUST AGREEMENT
Lyondell Petrochemical Company hereby amends, effective August 1, 1997, the
Lyondell Petrochemical Company Supplemental Executive Benefit Plans Trust
Agreement, as follows:
Section 3, CHANGE IN CONTROL, Section 3.2., "Definition of Change in Control" is
revised in its entirety to read as follows:
SECTION 3.2. Definition of "Change in Control". A "Change in Control"
-----------
shall be deemed to have occurred as of the date that one or more of the
following occurs:
A. Individuals who, as of the date hereof, constitute the entire Board of
Directors of the Company ("Incumbent Directors") cease for any reason to
constitute at least a majority of the Board; provided, however, that any
-------- -------
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's shareholders, was
approved by a vote of at least a majority of the then Incumbent Directors
shall be considered as though such individual was an Incumbent Director,
but excluding, for this purpose any such individual whose initial
assumption of office occurs as a result of either an actual or threatened
election contest, as such terms are used in Rule 14a-11 under the Exchange
Act or other actual or threatened solicitation of proxies or consents by or
on behalf of any Person (as defined below) other than the Board; provided,
--------
further, that in the event ARCO at any time determines to achieve minority
-------
representation on the Company's Board of
Directors approximately equal to its then ownership percentage of the
Company's common stock, its implementation of such determination through
the election of ARCO employees as directors of the Company shall not be
deemed to be a Change in Control and such ARCO employees shall constitute
Incumbent Directors;
B. The stockholders of the Company shall approve (I) any merger,
consolidation or recapitalization of the Company (or, if the capital stock
of the Company is affected, any subsidiary of the Company), or any sale,
lease, or other transfer (in one transaction or a series of transactions
contemplated or arranged by any party as a single plan) of all or
substantially all of the assets of the Company (each of the foregoing being
an "Acquisition Transaction") where (i) the shareholders of the Company
immediately prior to such Acquisition Transaction would not immediately
after such Acquisition Transaction beneficially own, directly or
indirectly, shares or other ownership interests representing in the
aggregate eighty percent (80%) or more of (a) the then outstanding common
stock or other equity interests of the corporation or other entity
surviving or resulting from such merger, consolidation or recapitalization
or acquiring such assets of the Company, as the case may be (the "Surviving
Entity") (or of its ultimate parent corporation or other entity, if any),
and (b) the Combined Voting Power of the then outstanding Voting Securities
of the Surviving Entity (or of its ultimate parent corporation or other
entity, if any) or (ii) the Incumbent Directors at the time of the initial
approval of such Acquisition Transaction would not immediately after such
Acquisition Transaction constitute a majority of the Board of Directors, or
similar managing group, of the Surviving Entity (or of its ultimate parent
corporation or other entity, if any), or (2) any plan or proposal for the
liquidation or dissolution of the Company;
C. Any Person except for ARCO shall be or become the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of securities of the Company representing in the aggregate more
than twenty percent (20%) of either (A) the then outstanding shares of
common stock of the Company ("Common Shares") or (B) the Combined Voting
Power of all then outstanding Voting Securities of the Company; provided,
--------
however, that notwithstanding the foregoing, a "Change of Control" shall
-------
not be deemed to have occurred for purposes of this Subsection (C):
(i) Solely as a result of an acquisition of securities by the Company
which, by reducing the number of Common Shares or other Voting
Securities outstanding, increases (a) the proportionate number of
Common Shares beneficially owned by any Person to more than twenty
percent (20%) of the Common Shares then outstanding, or (b) the
proportionate voting power represented by the Voting Securities
beneficially owned by any Person to more than twenty percent (20%) of
the Combined Voting Power of all then outstanding Voting Securities;
or
2
(ii) Solely as a result of an acquisition of securities directly from
the Company except for any conversion of a security that was not
acquired directly from the Company,
provided, further, that if any Person referred to in paragraph (i) or (ii)
-------- -------
of this Subsection (C) shall thereafter become the beneficial owner of any
additional Common Shares or other Voting Securities of the Company (other
than pursuant to a stock split, stock dividend or similar transaction),
then a "Change of Control" shall be deemed to have occurred for purposes of
this Subsection (C); or
D. ARCO shall become the owner, directly or indirectly, of securities of
the Company representing in the aggregate more than fifty percent (50%) of
either (1) the then outstanding Common Shares or (2) the Combined Voting
Power of all then outstanding Voting Securities of the Company except as
the result of an acquisition of securities by the Company which, by
reducing the number of Common Shares or other Voting Securities
outstanding, increases (x) the proportionate number of Common Shares
beneficially owned by ARCO to more than fifty percent (50%) of the Common
Shares then outstanding, or (y) the proportionate voting power represented
by the Voting Securities beneficially owned by ARCO to more than fifty
percent (50%) of the Combined Voting Power of all then outstanding Voting
Securities; provided, however, that if thereafter ARCO becomes the
-------- -------
beneficial owner of any additional Common Shares or other Voting Securities
of the Company (other than pursuant to a stock split, stock dividend or
similar transaction) the exception provided above shall no longer apply;
provided, further, that for purposes of this Subsection (D), neither record
-------- -------
ownership of common stock of the Company by the Trustee for ARCO's 401(a)
qualified plans nor beneficial ownership of common stock of the Company by
any of ARCO's directors for their personal account shall be deemed to
constitute "indirect" ownership of common stock of the Company by ARCO;
provided, further, that notwithstanding any contrary provision of this
-------- -------
Agreement, no Change in Control shall be deemed to have occurred pursuant
to this Subsection (D) if as a result of an inadvertent act ARCO becomes
the owner, directly or indirectly, of additional Common Shares or Voting
Securities and such securities are sold or otherwise disposed of by ARCO
within 30 days after ARCO discovers, or is notified by the Company as to,
the potential Change of Control resulting from such ownership, so that, as
a result of such subsequent sale or other disposition by ARCO, no Change in
Control would otherwise be deemed to have occurred pursuant to the terms
(excluding this proviso) of this Subsection (D).
Notwithstanding any of the foregoing, no Change in Control shall be deemed
to have occurred as a result solely of (1) the registration by ARCO of the
Exchangeable Notes pursuant to the Registration Statement, (2) the issuance
3
and sale by ARCO of the Exchangeable Notes to the underwriters in
accordance with the Registration Statement, (3) prior to the maturity of
the Exchangeable Notes, purchases and sales of the Exchangeable Notes, or
(4) a transaction in which assets of the Company are contributed to an
entity pursuant to the creation of a partnership under the terms of certain
agreements authorized by the Incumbent Directors on July 25, 1997.
IN WITNESS WHEREOF, the undersigned, being duly authorized on behalf of the
Company, has executed this instrument on this __________ day of August, 1997.
ATTEST: LYONDELL PETROCHEMICAL COMPANY
BY: ________________________ BY:___________________________
Assistant Secretary Xxxxxxx X. Xxxx
Vice President, Human Resources
4
