exv10w4



 






Exhibit 10.4




OPTION GRANT AGREEMENT




          THIS OPTION GRANT AGREEMENT, made as of the 24th day of October, 2005 between TJ Chemical
Holdings LLC (the “Company”) and Raymond Guba (the “Participant”).




          WHEREAS, the Company has adopted and maintains the TJ Chemical Holdings LLC 2004 Option Plan
(the “Plan”) to promote the interests of the Company and the Holders of Membership Units in the
Company by providing key employees, consultants, members and service providers of the Company and
its affiliates with an appropriate incentive to encourage them to continue in the employ or service
and to improve the growth and profitability of the Company and its affiliates;




          WHEREAS, the Plan provides for the Grant to Participants of non-qualified Options to purchase
Membership Unit(s) in the Company;




          NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter set
forth, the parties hereto hereby agree as follows:



1. Grant of Options. Pursuant to, and subject to, the terms and conditions set forth herein and in
the Plan, the Company hereby grants to the Participant a non-qualified option (the “Option”) with
respect to 1,000,000 Membership Unit(s) in the Company.



2. Grant Date. The Grant Date of the Option hereby granted is September 29, 2005.



3. Vesting Commencement Date. The Vesting Commencement Date of the Option hereby granted is
October 24, 2005.



4. Incorporation of Plan. All terms, conditions and restrictions of the Plan and the LLC Agreement
are incorporated herein and made part hereof as if stated herein. If there is any conflict between
the terms and conditions of the Plan or the LLC Agreement and this Option Grant Agreement, the
terms and conditions of this Option Grant Agreement, as interpreted by the Committee in its sole
discretion, shall govern, unless explicitly provided to the contrary in the Plan or this Option
Grant Agreement. All capitalized terms used herein shall have the meaning given to such terms in
the Plan.



5. Exercise Price. The exercise price per Membership Unit underlying the Option granted hereby is
$1.00.



6. Vesting Date. The Option shall become exercisable as follows: twenty percent (20%) of the
Membership Unit(s) (rounded down to the nearest Membership Unit) underlying the Option shall become
exercisable on each of the first five anniversaries of the Vesting Commencement Date;
provided that the Participant remains employed with the Company or any of its affiliates on
each such anniversary; and provided further that notwithstanding the foregoing, if
within the two-year period following a Change in Control the Participant’s Services are terminated
by the Company or its affiliate without Cause or by the Participant for Good Reason, the unvested
portion of the Option shall become immediately vested as of the effective date of the termination





 









 







of such Participant’s Services. For purposes of this Option Grant Agreement, the definition of
Good Reason contained in the Plan shall govern the Participant’s rights during the two-year period
following a Change in Control, without regard to that definition’s reference to the Participant’s
employment agreement.



7. Expiration Date. The Option or such portion thereof that has not yet become exercisable on the
date the Participant’s Services are terminated for any reason shall expire on such date. The
Option or such portion thereof that has become exercisable on or before the date the Participant’s
Services are terminated shall expire on the earlier of (a) the commencement of business on the date
the Participant’s Services are terminated for Cause; (b) 90 calendar days after the date the
Participant’s Services are terminated for any reason other than Cause, death or Disability; (c) one
year after the date the Participant’s Services are terminated by reason of death or Disability; or
(d) the 10th anniversary of the Grant Date.



8. Limitations on Transfer of Membership Units; Termination of Employment. The Participant
acknowledges that upon becoming a member of the Company, the Participant will be subject to all the
terms and conditions provided in the LLC Agreement. Notwithstanding anything herein or the LLC
Agreement to the contrary, the Participant shall not sell or transfer any Membership Unit acquired
pursuant to the exercise of an Option, except (i) to the Participant’s beneficiaries or estate upon
the Participant’s death, (ii) upon consent of the Committee, (iii) pursuant to Sections 6.03, 6.04,
6.06 of the LLC Agreement, or (iv) if such sale or transfer occurs following the date set forth in
Section 6.07 of the LLC Agreement.




          In the event of a termination of a Participant’s Services, the Company shall have the right to
purchase the Participant’s Membership Units acquired pursuant to the Options in accordance with
Section 6.06 of the LLC Agreement. Any Membership Units acquired pursuant to the exercise of the
Options shall be subject to certain Tag-Along and Drag-Along rights in accordance with Article VI
of the LLC Agreement.



9. Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to
any party hereto upon any breach or default of any party under this Option Grant Agreement, shall
impair any such right, power or remedy of such party nor shall it be construed to be a waiver of
any such breach or default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring nor shall any waiver of any single breach or default be deemed a waiver of any
other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any party of any breach or default under this
Option Grant Agreement, or any waiver on the part of any party or any provisions or conditions of
this Option Grant Agreement, shall be in writing and shall be effective only to the extent
specifically set forth in such writing.



10. Limitation on Transfer of Options. Except as set forth in this Section 10, the Option shall be
exercisable only by the Participant. The Option shall not be assignable or transferable other than
by will or by the laws of descent and distribution. Notwithstanding the foregoing, the Participant
may request authorization from the Committee to assign the Option granted herein to a trust or
custodianship, the beneficiaries of which may include only the Participant, the Participant’s
spouse or the Participant’s lineal descendants (by blood or adoption), and, if the Committee grants
such authorization, the Participant may assign his rights accordingly. In the





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event of any such assignment, such trust or custodianship shall be subject to all the restrictions,
obligations, and responsibilities as apply to the Participant under the Plan and this Option Grant
Agreement and shall be entitled to all the rights of the Participant under the Plan and this Option
Grant Agreement; provided that notwithstanding such assignment, if the events or dates set
forth in Sections 6 and 7 of the Option Grant Agreement occur with respect to the Participant, the
Option shall not vest or expire at the times set forth in Sections 6 and 7 hereof; provided
further that upon such assignment in accordance with this Section 10, all references in the
Plan and Option Grant Agreement except for Sections 6 and 7 of the Option Grant Agreement (and any
other provision of Services with the Company or its affiliates (or the termination thereof)) shall
be deemed to be replaced by a reference to the Transferee of the Option.



11. Indemnification. The Participant agrees, to the fullest extent permitted by law, to indemnify
and hold harmless the Company and any director, officer, or employee thereof against any and all
losses, liabilities, claims, damages, and expenses of any nature whatsoever (including attorneys’
fees and disbursements, judgments, fines and amounts paid in settlement) (collectively, “Losses”)
arising out of or based upon any breach or failure by the Participant to comply with his
obligations made herein. This Section 11 shall survive any termination or execution of this Option
Grant Agreement.



12. Representations.




     12.1 Participant Representations. In addition to any representations made by the Participant
in the LLC Agreement, the Participant hereby represents and warrants to the Company that: (a) the
Participant is an “accredited investor” as defined in Rule 501(a) under the Securities Act;
provided that the Company may, in its discretion and subject to compliance with all
applicable securities laws, waive the foregoing representation with respect to a limited number of
Participants; (b) the Participant, alone or together with his representatives, possesses such
expertise, knowledge, and sophistication in financial and business matters generally, and in the
type of transactions in which the Company proposes to engage in particular; (c) the Participant is
aware that the LLC Agreement provides significant restrictions on the ability of a Participant to
sell, transfer, assign, mortgage, hypothecate, or otherwise encumber the Membership Units; (d) the
Participant has duly executed and delivered this Option Grant Agreement; and (e) the Participant’s
authorization, execution, delivery, and performance of this Option Grant Agreement do not conflict
with any other agreement or arrangement to which the Participant is a party or by which it is
bound.



     12.2 Truth of Representations and Warranties. The Participant represents and warrants that
all of his representations set forth in Section 12.1 of this Option Grant Agreement are true and
correct as of the date hereof and will be true and correct on any Exercise Date.


13. Integration. This Option Grant Agreement, and the other documents referred to herein or
delivered pursuant hereto (including, without limitation, the LLC Agreement) which form a part
hereof contain the entire understanding of the parties with respect to its subject matter and there
are no restrictions, agreements, promises, representations, warranties, covenants or undertakings
with respect to the subject matter hereof other than those expressly set forth in such documents.
This Option Grant Agreement, the Plan and the LLC Agreement supersede all prior agreements and
understandings between the parties with respect to its subject matter.




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14. Counterparts. This Option Grant Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the same instrument.



15. Governing Law. This Option Grant Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware without regard to the provisions thereof
governing conflict of laws.



16. Participant Acknowledgment. The Participant hereby acknowledges receipt of a copy of the Plan
and the LLC Agreement. The Participant hereby acknowledges that all decisions, determinations and
interpretations of the Committee in respect of the Plan, this Option Grant Agreement and the Option
shall be final and conclusive.




     [Remainder of page intentionally left blank.]



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          IN WITNESS WHEREOF, the Company has caused this Option Grant Agreement to be duly executed by
its duly authorized officer and said Participant has hereunto signed this Option Grant Agreement on
his own behalf, thereby representing that he has carefully read and understands this Option Grant
Agreement, the Plan, and the LLC Agreement as of the day and year first written above.




	 	 	 	 	 	 	 
	 	 	TJ CHEMICAL HOLDINGS LLC	 	
	 
	 
	 	/s/ David A. Spuria	 	 
	 	 	 	 	 
	 

	 	By:	 	David A. Spuria	 	 
	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	RAYMOND GUBA	 	 
	 
	 	 	/s/ Raymond Guba	 	 
	 	 	 	 	 






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