FORM
OF
EMPLOYEE BENEFITS AND COMPENSATION
ALLOCATION AGREEMENT
Employee Benefits and Compensation Allocation Agreement, dated as of
_________, 1996, by and between Premark International, Inc., a Delaware
corporation ("Premark"), and Tupperware Corporation, a Delaware corporation
and, as of the date hereof, a wholly-owned subsidiary of Premark
("Tupperware").
Whereas, the Premark Board has determined that it is appropriate and
desirable to distribute all outstanding shares of Tupperware Common Stock (as
defined herein) on a pro rata basis to the holders of Premark Common Stock
(the "Distribution"); and
Whereas, Premark and Tupperware are entering into a Distribution Agreement
of even date herewith (the "Distribution Agreement"), which, among other
things, sets forth the principal corporate transactions required to effect the
Distribution and sets forth other agreements that will govern certain other
matters following the Distribution; and
Whereas, in connection with the Distribution, Premark and Tupperware desire
to provide for the allocation of assets and liabilities and other matters
relating to employee benefit plans and compensation arrangements.
Now, Therefore, in consideration of the mutual agreements, provisions and
covenants contained in this Agreement, the parties hereby agree as follows:
ARTICLE I
Definitions
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Section 1.01 General. Any capitalized terms that are used in this Agreement
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but not defined herein (other than the names of Premark employee benefit
plans) shall have the meanings set forth in the Distribution Agreement, and as
used herein, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the
terms defined):
Audit Liability: defined in Section 2.12(a).
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Base Retirement Plan Assumption Date: defined in Section 2.01(a).
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Canadian Assumption Date: defined in Section 2.07(a).
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Cash Incentive Plans: defined in Section 2.05(a).
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Common Non-Employee Director: defined in Section 2.04(c)(i).
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Enrolled Actuary: an enrolled actuary or other party making actuarial or
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similar determinations pursuant to this Agreement with respect to assets or
liabilities relating to a particular employee benefit plan selected by Premark
with the approval of Tupperware, which approval shall not be unreasonably
withheld.
Former Dart Business Employee: any employee or former employee of a Former
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Dart Business who is a retired participant or deferred vested participant in
the Premark Base Retirement Plan, the Premark Retirement Savings Plan, the
Premark Retiree Medical Program and/or the Premark Retiree Life Program, and
who is not a Premark Employee, a Premark Former Employee, a Tupperware
Employee or Tupperware Former Employee.
PreCan: Premark Canada Inc., a Canadian corporation.
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Pre-Distribution Group: Premark and its present and former subsidiaries, and
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their respective present and former affiliates (including without limitation
Tupperware and its subsidiaries).
Premark Base Retirement Plan: the Premark International, Inc. Base
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Retirement Plan.
Premark Director Option: an option to purchase from Premark shares of
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Premark Common Stock granted to a non-employee director of Premark pursuant to
the Premark International, Inc. Director Stock Plan.
Premark Employee: any individual who is employed by Premark or any of its
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subsidiaries immediately before the Cut-off Date and who is not a Tupperware
Employee.
Premark Former Employee: any individual who was, at any time before the Cut-
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off Date, employed by any member of the Pre-Distribution Group, who is not a
Premark Employee or a Tupperware Employee, and whose most recent active
employment with any such member was with a Premark Business or a Former
Premark Business.
Premark Option: an option to purchase shares of Premark Common Stock granted
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pursuant to the Premark Stock Plan.
Premark Phantom SAR: a right granted under the Premark Stock Plan to receive
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from Premark a payment in cash in an amount based upon the excess of the fair
market value per share of Premark Common Stock on the date of the exercise
over a specified exercise price per share.
Premark Ratio: the amount obtained by dividing the average of the daily high
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and low trading prices on the New York Stock Exchange for the Premark Common
Stock on each of the five trading days prior to the ex-dividend date for the
Distribution by the average of the daily high and low trading prices on the
New York Stock Exchange for the Premark Common Stock on each of the five
trading days beginning with the ex-dividend date for the Distribution.
Premark Restricted Stock: restricted shares of Premark Common Stock granted
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pursuant to the Premark Stock Plan.
Premark Retiree Life Program: the Premark International, Inc. Group Benefits
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Plan Retiree Life Program.
Premark Retiree Medical Program: the Premark International, Inc. Group
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Benefits Plan Retiree Medical Program.
Premark Retirement Savings Plan: the Premark International, Inc. Retirement
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Savings Plan.
Premark Stock Plan: the Premark International, Inc. 1994 Incentive Plan and
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its predecessors.
Premark Supplemental Plan: the Premark International, Inc. Supplemental Plan.
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Premark Welfare Plan: a Welfare Plan sponsored by Premark or a Premark
Subsidiary.
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Qualified Plan: an "employee pension benefit plan" as defined in Section
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3(2) of ERISA which constitutes or is intended in good faith to constitute a
qualified plan under Section 401(a) of the Code.
Ratio: the amount obtained by dividing the average of the daily high and low
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trading prices on the New York Stock Exchange for the Premark Common Stock on
each of the five trading days prior to the ex-dividend date for the
Distribution by the average of the daily high and low trading prices on the
New York Stock Exchange for the Tupperware Common Stock on each of the five
trading days beginning with the ex-dividend date for the Distribution.
Retirement Savings Plan Assumption Plan: defined in Section 2.02(a).
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Transition Period: defined in Section 2.02(a).
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Tupperware Base Retirement Plan: a Qualified Plan of Tupperware established
pursuant to Section 2.01.
Tupperware Canadian Retirement Plan: a Registered Pension Plan of Tupperware
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established pursuant to Section 2.07.
Tupperware Director Option: an option to purchase from Tupperware shares of
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Tupperware Common Stock provided to a Common Non-Employee Director or a
Tupperware Non-Employee Director pursuant to Section 2.04(c).
Tupperware Employee: any individual who, immediately before the Cut-off
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Date, was employed by Premark or any of its subsidiaries (including Tupperware
and the Tupperware Subsidiaries) and who, on or immediately after the Cut-off
Date, or otherwise in connection with the Distribution, is employed by
Tupperware or a Tupperware Subsidiary.
Tupperware Former Employee: any individual who was, at any time before the
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Cut-off Date, employed by any member of the Pre-Distribution Group, who is not
a Premark Employee or a Tupperware Employee, and whose most recent active
employment with any such member was with a Tupperware Business or a Former
Tupperware Business.
Tupperware Non-Employee Director: defined in Section 2.04(c)(i).
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Tupperware Option: an option to purchase from Tupperware shares of
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Tupperware Common Stock provided to a Tupperware Participant pursuant to
Section 2.04(a).
Tupperware Participants: Tupperware Employees, Tupperware Former Employees,
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and their respective beneficiaries and dependents.
Tupperware Phantom SAR: a right to receive from Tupperware payment in cash
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in an amount based upon the excess of the fair market value per share of
Tupperware Common Stock on the date of exercise over a specified exercise
price per share, provided to a Tupperware Participant pursuant to Section
2.04(a).
Tupperware Qualified Plan: a Qualified Plan sponsored by Tupperware or a
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Tupperware Subsidiary.
Tupperware Restricted Stock: restricted shares of Tupperware Common Stock
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provided to Tupperware Participants pursuant to Section 2.04(b).
Tupperware Retirement Savings Plan: a Qualified Plan of Tupperware
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established pursuant to Section 2.02.
Tupperware Supplemental Plan: defined in Section 2.05(b).
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Tupperware Welfare Plan: a Welfare Plan sponsored by Tupperware or a
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Tupperware Subsidiary.
Unified Plan: the Premark Canada Inc. Unified Pension Plan.
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Welfare Plan: an "employee welfare benefit plan" as defined in Section 3(1)
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of ERISA (whether or not such plan is subject to ERISA).
Section 1.02 Schedules, Etc. Reference to a "Schedule" are, unless otherwise
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specified, to one of the Schedules attached to this Agreement, and references
to a "Section" are, unless otherwise specified, to one of the Sections of this
Agreement.
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ARTICLE II
Employee Benefits
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Section 2.01 Base Retirement Plans. (a) As soon as practicable after the
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date hereof and effective as of a date (the "Base Retirement Plan Assumption
Date") on or before the Cut-off Date, Tupperware shall establish the
Tupperware Base Retirement Plan and a related trust to assume liabilities of
and receive the transfer of assets from the Premark Base Retirement Plan
provided for in this Section 2.01. As of the Base Retirement Plan Assumption
Date, the Tupperware Participants shall cease to be participants in the
Premark Base Retirement Plan and shall become participants (to the extent they
are eligible) in the Tupperware Base Retirement Plan.
(b) Premark shall direct the trustee of the trust funding the Premark Base
Retirement Plan to transfer to the trustee of the trust funding the Tupperware
Base Retirement Plan, in cash, securities, other property or a combination
thereof, as agreed by Premark and Tupperware, an amount equal to (X) less (Y),
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as adjusted by (Z); where (X) equals that portion of such assets of the
Premark Base Retirement Plan which represents the minimum amount of assets
necessary to satisfy the requirements of Section 414(l) of the Code and
Section 4044 of ERISA; where (Y) equals the aggregate payments made from the
trust relating to the Premark Base Retirement Plan in respect of such
participants who are Tupperware Participants from the Base Retirement Plan
Assumption Date through the date the transfer occurs; and where (Z) equals the
amount of the net earnings or losses, as the case may be, from the Base
Retirement Plan Assumption Date through the date the transfer occurs, on the
average of the daily balances of the foregoing and based upon the actual rate
of return earned by the Premark Base Retirement Plan during such period. All
of the foregoing calculations shall be determined by the Enrolled Actuary.
(c) Tupperware and Premark shall, in connection with the transfer described
in this Section 2.01, cooperate in making any and all appropriate filings
required under the Code or ERISA, and the regulations thereunder and any
applicable securities laws, implementing all appropriate communications with
participants, transferring appropriate records, and taking all such other
actions as may be necessary and appropriate to implement the provisions of
this Section 2.01 and to cause such transfer to take place as soon as
practicable after the Base Retirement Plan Assumption Date; provided, however,
that such transfer shall not take place until as soon as practicable after the
receipt of an opinion of Tupperware's counsel satisfactory to Premark's
counsel to the effect that the Tupperware Base Retirement Plan is in form
qualified under Section 401(a) of the Code and the related trust is in form
exempt under Section 501(a) of the Code. Premark agrees to provide to
Tupperware's counsel such information in the possession of Premark or any
Premark Subsidiary as may be reasonably requested by Tupperware's counsel in
connection with the issuance of such opinion. Premark agrees, during the
period ending with the date of the transfer of assets to the Tupperware Base
Retirement Plan, to cause distributions in respect of participants who are
Tupperware Participants to be made in the ordinary course from the trust
funding the Premark Base Retirement Plan in accordance with applicable law and
pursuant to plan provisions.
(d) Except as specifically set forth in this Section 2.01 and Section 2.12,
upon the completion of the transfer of assets provided for herein, effective
as of the Base Retirement Plan Assumption Date, Tupperware, the Tupperware
Subsidiaries and the Tupperware Base Retirement Plan shall assume, and shall
be solely responsible for, all Liabilities of the Pre-Distribution Group to or
with respect to Tupperware Participants under the Premark Base Retirement
Plan. Tupperware, the Tupperware Subsidiaries and the Tupperware Base
Retirement Plan shall be solely responsible for all Liabilities arising out of
or relating to the Tupperware Base Retirement Plan.
Section 2.02 The Retirement Savings Plans. (a) As soon as practicable after
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the date hereof and effective as of a date (the "Retirement Savings Plan
Assumption Date") on or before the Cut-off Date, Tupperware shall establish
the Tupperware Retirement Savings Plan and a related trust to assume
liabilities of and receive the transfer of assets from the Premark Retirement
Savings Plan provided for in this Section 2.02. During the period (if any)
from the Retirement Savings Plan Assumption Date until such transfer of assets
takes place (the "Transition Period"), Tupperware shall cause contributions by
or in respect of Tupperware Participants to the Tupperware Retirement Savings
Plan to be held by the trustee of the Tupperware Retirement
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Savings Plan in a short term investment fund. During the Transition Period (if
any), distributions in respect of Tupperware Participants shall be made from
the Premark Retirement Savings Plan in accordance with applicable law and
pursuant to plan provisions and Tupperware Participants shall otherwise be
treated as terminated participants under such plan, except that they shall not
be treated as having terminated employment for purposes of entitlement to
distributions or the repayment of outstanding loans solely as a result of
becoming Tupperware Participants. As of the end of the Transition Period or,
if there is no Transition Period, as of the Retirement Savings Plan Assumption
Date, Tupperware Participants shall cease to be participants in the Premark
Retirement Savings Plan and shall, to the extent they are eligible, become
participants in the Tupperware Retirement Savings Plan.
(b) As soon as practicable after the Retirement Savings Plan Assumption
Date, Premark and Tupperware shall take all actions as may be necessary or
appropriate in order to effect the transfer to the Tupperware Retirement
Savings Plan and the related trust of the respective account balances as of
the date of transfer of the participants in the Premark Retirement Savings
Plan who are Tupperware Participants. Such transfer shall be made in cash,
securities, other property or a combination thereof, as agreed by Premark and
Tupperware, but shall be effected, where practicable, in kind, so as to
preserve each such participant's investment election as in effect on the date
of such transfer.
(c) Tupperware and Premark shall cooperate in making all appropriate filings
required under the Code or ERISA, and the regulations thereunder and any
applicable securities laws, implementing all appropriate communications with
participants, transferring appropriate records, and taking all such other
actions as may be necessary and appropriate to implement the provisions of
this Section 2.02 and to cause the transfer of assets pursuant to Section
2.02(b) to take place as soon as practicable after the Retirement Savings Plan
Assumption Date; provided, however, that such transfer shall not take place
until as soon as practicable after the receipt of an opinion of Tupperware's
counsel satisfactory to Premark's counsel to the effect that the Tupperware
Retirement Savings Plan is in form qualified under Section 401(a) of the Code
and the related trust is in form exempt under Section 501(a) of the Code.
(d) Except as specifically set forth in this Section 2.02 and Section 2.12,
upon the completion of the transfer provided for herein, effective as of the
Retirement Savings Plan Assumption Date, Tupperware, the Tupperware
Subsidiaries and the Tupperware Retirement Savings Plan shall assume or
retain, as the case may be, and shall be solely responsible for, all
Liabilities of the Pre-Distribution Group to or with respect to Tupperware
Participants under the Premark Retirement Savings Plan. Tupperware, the
Tupperware Subsidiaries and the Tupperware Retirement Savings Plan shall be
solely responsible for all Liabilities arising out of or relating to the
Tupperware Retirement Savings Plan.
Section 2.03 Welfare Plans. Tupperware shall take, and shall cause the
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Tupperware Subsidiaries to take, all actions necessary or appropriate to
establish, on or before the Cut-off Date, Tupperware Welfare Plans to provide
each Tupperware Participant with benefits substantially similar to the
benefits provided to him or her under the Premark Welfare Plans. From and
after the Cut-off Date, except as specifically set forth in Section 2.12,
Tupperware and the Tupperware Subsidiaries shall assume or retain, as the case
may be, and shall be solely responsible for, all Liabilities of the Pre-
Distribution Group in connection with claims by or in respect of Tupperware
Participants for benefits under the Premark Welfare Plans and the Tupperware
Welfare Plans, whether incurred before, on or after the Cut-off Date. Premark
agrees to provide Tupperware or its designated representative with such
information (in the possession of Premark or a Premark Subsidiary and not
already in the possession of Tupperware or a Tupperware Subsidiary) as may be
reasonably requested by Tupperware in order to carry out the requirements of
this Section 2.03.
Section 2.04 Stock Plans. (a) Premark and Tupperware shall take all action
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necessary or appropriate (including obtaining the consent of the holders of
Premark Options and Premark Phantom SARs, if required) so that each Premark
Option and Premark Phantom SAR held by a Tupperware Participant that is
outstanding as of the Distribution Date shall be replaced with a Tupperware
Option or a Tupperware Phantom SAR, as the case
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may be, with respect to a number of shares of Tupperware Common Stock equal to
the number of shares subject to such Premark Option or Premark Phantom SAR, as
the case may be, immediately before such replacement, times the Ratio, and
then, if any resultant fractional share of Tupperware Common Stock exists,
rounded [up] [down] to the nearest whole share, and with a per-share exercise
price equal to the per-share exercise price of such Premark Option or Premark
Phantom SAR, as the case may be, immediately before such replacement, divided
by the Ratio. Such Tupperware Option or Tupperware Phantom SAR, as the case
may be, shall otherwise have the same terms and conditions as the
corresponding Premark Option or Premark Phantom SAR, as the case may be,
except that references to Premark shall be changed to refer to Tupperware.
(b) Premark and Tupperware shall take all action necessary (including
obtaining the consent of the holders of Premark Restricted Stock, if
necessary) so that each award of Premark Restricted Stock held by a Tupperware
Participant (including any Tupperware Common Stock issued in the Distribution
with respect thereto) that is outstanding as of the Distribution Date is
converted into an award of a number of shares of Tupperware Restricted Stock
such that the sum of such number and the number of shares of Tupperware Common
Stock issued in the Distribution with respect to such Premark Restricted Stock
equals the number of shares of Premark Restricted Stock comprising such award
immediately before the Distribution Date, times the Ratio, and then, if any
resultant fractional share of Tupperware Common Stock exists, rounded [up]
[down] to the nearest whole share. Such converted award shall be subject to
the same schedule with respect to the lapse of restrictions and the same risks
of forfeiture as the corresponding Premark Restricted Stock immediately before
such conversion, and shall otherwise have the same terms and conditions as the
corresponding Premark Restricted Stock, except that references to Premark
shall be changed to references to Tupperware.
(c) (i) Premark and Tupperware shall take all action necessary or
appropriate (including obtaining the consent of the holders of Premark
Director Options, if required) so that each Premark Director Option held by an
individual who is a non-employee member of the Board of Directors of both
Tupperware and Premark (a "Common Non-Employee Director") and each Premark
Director Option held by an individual who is a non-employee member of the
Board of Directors of Tupperware but is not a member of the Board of Directors
of Premark (a "Tupperware Non-Employee Director") that is outstanding as of
the Distribution Date shall be replaced as set forth below.
(ii) Each such Premark Director Option held by a Common Non-Employee
Director shall be replaced with (i) a Tupperware Director Option and (ii) a
new Premark Director Option, in each case as more fully described below. Such
Tupperware Director Option shall constitute an option to purchase a number of
shares of Tupperware Common Stock equal to one-half the number of shares
subject to such Premark Director Option immediately before such replacement,
times the Ratio, and then, if any resultant fractional share of Tupperware
Common Stock exists, rounded [up] [down] to the nearest whole share, and with
a per-share exercise price equal to the per-share exercise price of such
Premark Director Option immediately before such replacement, divided by the
Ratio. Such Tupperware Director Option shall otherwise have the same terms and
conditions as the Premark Director Option it replaces in part, except that
references to Premark shall be changed to refer to Tupperware. Such new
Premark Director Option shall constitute an option to purchase a number of
shares of Premark Common Stock equal to one-half the number of shares subject
to such Premark Director Option immediately before such replacement, times the
Premark Ratio, and then, if any resultant fractional share of Premark Common
Stock exists, rounded [up] [down] to the nearest whole share, and with a per-
share exercise price equal to the per-share exercise price of such Premark
Director Option immediately before such replacement, divided by the Premark
Ratio.
(iii) Each such Premark Director Option held by a Tupperware Non-Employee
Director shall be replaced with a Tupperware Director Option to purchase a
number of shares of Tupperware Common Stock equal to the number of shares
subject to such Premark Director Option immediately before such replacement,
times the Ratio, and then, if any resultant fractional share of Tupperware
Common Stock exists, rounded [up] [down] to the nearest whole share, and with
a per-share exercise price of such Premark Director Option immediately before
such replacement, divided by the Ratio. Such Tupperware Director Option shall
otherwise have the same terms and conditions as the Premark Director Option it
replaces, except that references to Premark shall be changed to refer to
Tupperware.
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(d) Effective as of the Distribution Date, except as specifically set forth
in Section 2.12, Tupperware and the Tupperware Subsidiaries shall assume and
be solely responsible for (i) all Liabilities of the Pre-Distribution Group to
or with respect to Tupperware Participants arising out of or relating to
Premark Options, Premark Phantom SARs and Premark Restricted Stock that are
outstanding as of the Distribution Date, and (ii) all Liabilities of the Pre-
Distribution Group to or with respect to Common Non-Employee Directors and
Tupperware Non-Employee Directors arising out of or relating to Premark
Director Options to the extent they are to be replaced by Tupperware Director
Options pursuant to Section 2.04(c). Tupperware and the Tupperware
Subsidiaries shall be solely responsible for all Liabilities arising out of or
relating to Tupperware Options, Tupperware Stock Units, Tupperware Restricted
Stock and Tupperware Director Options.
Section 2.05 Nonqualified Plans and Programs. (a) Effective as of the Cut-
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off Date, Tupperware and the Tupperware Subsidiaries shall assume and be
solely responsible for all Liabilities of the Pre-Distribution Group to or
relating to Tupperware Participants under all annual and long-term cash
incentive compensation plans of Premark, the Premark Subsidiaries, Tupperware
and the Tupperware Subsidiaries (the "Cash Incentive Plans"). Tupperware and
Premark shall cooperate in taking all actions necessary or appropriate to
adjust the performance goals and other terms and conditions of awards under
the Cash Incentive Plans for performance periods that begin before and end
after the Cut-Off Date as appropriate to reflect the Distribution, including,
but not limited to, amending any Cash Incentive Plan or grant thereunder and
obtaining any necessary consents of affected participants.
(b) Effective as of the Cut-off Date: (i) Tupperware and the Tupperware
Subsidiaries shall establish a plan (the "Tupperware Supplemental Plan")
substantially similar to the Premark Supplemental Plan to provide supplemental
retirement benefits to certain management and highly compensated employees;
(ii) Premark shall amend the Premark Supplemental Plan, if necessary, so that
no Tupperware Employee who is a participant therein shall be deemed to have
terminated employment as a result of the Distribution or as a result of
becoming a Tupperware Employee in connection with the Distribution; and (iii)
Tupperware and the Tupperware Subsidiaries shall assume and be solely
responsible for all Liabilities of the Pre-Distribution Group to or relating
to Tupperware Participants under the Premark Supplemental Plan. All deferral
elections and beneficiary designations made by Tupperware Participants under
the Premark Supplemental Plan shall remain in effect with respect to the
Tupperware Supplemental Plan from and after the Cut-off Date, until changed in
accordance with the Tupperware Supplemental Plan. Tupperware and Premark shall
cooperate in taking all actions necessary or appropriate to accomplish the
foregoing and to ensure that as of the Cut-off Date, Premark and the Premark
Subsidiaries cease to have any Liabilities to or relating to the Tupperware
Participants under the Premark Supplemental Plan, including, but not limited
to, amending the Premark Supplemental Plan or any grant thereunder and
obtaining any necessary consents of affected participants.
Section 2.06 Severance Pay. (a) Tupperware and Premark agree that
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individuals who, in connection with the Distribution, cease to be Premark
Employees and become Tupperware Employees shall not be deemed to have
experienced a termination or severance of employment from Premark and its
subsidiaries for purposes of any policy, plan, program or agreement of Premark
or any of its subsidiaries that provides for the payment of severance, salary
continuation or similar benefits.
(b) Tupperware and the Tupperware Subsidiaries shall assume and be solely
responsible for all Liabilities of the Pre-Distribution Group in connection
with claims made by or on behalf of Tupperware Employees in respect of
severance pay, salary continuation and similar obligations relating to the
termination or alleged termination of any such person's employment on or after
the Cut-off Date.
Section 2.07 Canadian Unified Pension Plan. (a) As soon as practicable after
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the date hereof and effective as of January 1, 1996 (the "Canadian Assumption
Date"), Premark shall cause PreCan to establish the Tupperware Canadian
Retirement Plan and a related trust to assume liabilities of and receive the
transfer of assets from the Unified Plan provided for in this Section 2.07. As
of the Canadian Assumption Date, the Tupperware Employees shall cease to be
participants in the Unified Plan and shall become participants (to the extent
they are
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eligible) in the Tupperware Canadian Retirement Plan. As soon as practicable
after Tupperware has established a Tupperware Subsidiary that is a Canadian
corporation, Premark shall cause PreCan to transfer sponsorship of the
Tupperware Canadian Retirement Plan to such Tupperware Subsidiary, and
Tupperware shall cause such Tupperware Subsidiary to accept such sponsorship.
(b) Premark shall direct, or shall cause PreCan to direct, the trustee of
the trust funding the Unified Plan to transfer to the trustee of the trust
funding the Tupperware Canadian Retirement Plan, all of the assets
attributable to accounts of Tupperware Participants under the Unified Plan
[treatment of surplus to be determined].
(c) Tupperware and Premark shall cooperate, and Premark shall cause PreCan
to cooperate, in connection with the transfers described in this Section 2.07,
in making any and all appropriate filings required under the Pension Benefits
Act (Ontario) and the Income Tax Act (Canada), the regulations thereunder and
any other applicable legislation, implementing all appropriate communications
with participants, transferring appropriate records, and taking all such other
actions as may be necessary and appropriate to implement the provisions of
this Section 2.07 and to cause such transfers to take place as soon as
practicable after the Canadian Assumption Date; provided, however, that such
transfers shall not take place until receipt of approval from the appropriate
government pension supervisory authorities. PreCan agrees, during the period
ending with the date of the transfer of assets to the Tupperware Canadian
Retirement Plan, to cause distributions in respect of participants who are
Tupperware Participants to be made in the ordinary course from the Tupperware
accounts within the trust funding the Unified Plan in accordance with
applicable law and pursuant to plan provisions.
(d) Except as specifically set forth in this Section 2.07 and in Section
2.12, upon the completion of the transfer of assets provided for herein,
effective as of the Canadian Assumption Date, Tupperware, the Tupperware
Subsidiaries and the Tupperware Canadian Retirement Plan shall assume, and
shall be solely responsible for, all Liabilities of the Pre-Distribution Group
to or with respect to Tupperware Participants under the Unified Plan.
Tupperware, the Tupperware Subsidiaries and the Tupperware Canadian Retirement
Plan shall be solely responsible for all Liabilities arising out of or
relating to the Tupperware Canadian Retirement Plan.
Section 2.08 Employment Agreements. (a) As of the Cut-off Date, Tupperware
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and the Tupperware Subsidiaries shall assume and be solely responsible for all
Liabilities of Premark and its Subsidiaries pursuant to the employment
agreement(s) listed on Schedule A hereto.
(b) Effective as of the Distribution Date, Tupperware shall enter into
change-of-control employment agreements substantially in the form attached
hereto as Exhibit A with each of the individuals listed on Schedule B hereto.
Section 2.09 Other Liabilities and Obligations. As of the Cut-off Date,
---------------------------------
except as otherwise agreed by the parties hereto, Tupperware and the
Tupperware Subsidiaries shall assume and be solely responsible for all
Liabilities of the Pre-Distribution Group not otherwise provided for in this
Agreement to or relating to Tupperware Participants arising out of or relating
to employment by any of Premark, the Premark Subsidiaries, Tupperware or the
Tupperware Subsidiaries, or any predecessors thereof, including without
limitation the Former Tupperware Businesses.
Section 2.10 Recognition of Premark Employment Service, etc. The Tupperware
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Qualified Plans, the Tupperware Welfare Plans, and all other employee benefit
plans, programs and policies of Tupperware shall recognize service before the
Distribution with the Pre-Distribution Group as service with Tupperware and
the Tupperware Subsidiaries. Each Tupperware Welfare Plan shall provide
benefits to Tupperware Participants without interruption or change solely as a
result of the transition from the corresponding Premark Welfare Plans, and
without limiting the generality of the foregoing: (i) shall, to the extent
applicable, recognize all amounts applied to deductibles, out-of-pocket
maximums and lifetime maximum benefits with respect to Tupperware Participants
under the corresponding Premark Welfare Plan for the plan year that includes
the Cut-off Date and for prior periods (if applicable); (ii) shall, to the
extent applicable, not impose any limitations on coverage of pre-existing
conditions of Tupperware Participants except to the extent such limitations
applied to such
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Tupperware Participants under the corresponding Premark Welfare Plan
immediately before such Tupperware Welfare Plan became effective; and (iii)
shall not impose any other conditions (such as proof of good health, evidence
of insurability or a requirement of a physical examination) upon the
participation by Tupperware Participants who were participating in the
corresponding Premark Welfare Plan immediately before such Tupperware Welfare
Plan became effective.
Section 2.11 Special Provisions. (a) Notwithstanding any other provision of
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this Agreement, the Chairman of Premark shall not be treated as a Premark
Employee or a Tupperware Employee for purposes of this Agreement, no provision
of this Agreement shall apply to him, and all Liabilities relating to or
arising out of his employment with Premark or Tupperware shall be dealt with
as specifically determined by the Board of Directors of Premark before the
Cut-off Date.
(b) Premark and the Premark Subsidiaries shall retain all Liabilities of the
Pre-Distribution Group to or relating to the Former Dart Business Employees
and their beneficiaries and dependents under the Premark Base Retirement Plan,
the Premark Retirement Savings Plan, the Premark Retiree Medical Program and
the Premark Retiree Life Program.
Section 2.12 (a) Plan Audits. If any audit, examination or similar
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proceeding with respect to any Premark Qualified Plan or Premark Welfare Plan
or the Unified Plan by the Internal Revenue Service, the U.S. Department of
Labor, any government pension supervisory authority of Canada or Ontario, or
any other governmental authority, or any litigation arising out of such an
audit, examination or similar proceeding, that pertains (in whole or in part)
to a period before the Cut-off Date results in the imposition of any
Liability, then the portion of such Liability that pertains to a period before
the Cut-off Date (an "Audit Liability") shall be allocated between Tupperware
and Premark as set forth in this Section 2.12; provided, that the term "Audit
--------
Liability" shall not include any portion of such a Liability that results from
the loss of any compensation deduction or any related interest or penalties
(which shall be governed by the Tax Sharing Agreement).
(b) To the extent that an Audit Liability takes the form of a payment to any
Tupperware Participant or of a benefit under a plan or a contribution to a
trust or other funding vehicle relating to a plan, or interest on such a
payment or contribution, there shall be allocated to Tupperware the portion of
such Audit Liability that is attributable to Tupperware Participants.
(c) Any Audit Liability that takes the form of a penalty, fine or other
liability imposed as a result of the manner in which a plan was administered
(including without limitation as a result of the failure to make a required
filing or participant communication) and that is not described in Section
2.12(b) above shall be allocated to Tupperware if Tupperware or a Tupperware
Subsidiary was responsible for such administration; to Premark if Premark or a
Premark Subsidiary, other than Tupperware or a Tupperware Subsidiary, was
responsible for such administration; and equally between Tupperware and
Premark if the responsibility for such administration was shared or cannot be
clearly determined.
(d) If an Audit Liability arises, the allocation of which is not addressed
in Section 2.12(b) or (c), or if there arises any other dispute concerning the
allocation of Audit Liabilities, such allocation or dispute shall be subject
to the dispute resolution and arbitration provisions of the Distribution
Agreement.
Section 2.13 Indemnification. All Liabilities retained or assumed by or
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allocated to Tupperware or any Tupperware Subsidiary pursuant to this
Agreement shall be deemed to be Tupperware Liabilities, as defined in the
Distribution Agreement, and all Liabilities retained or assumed by or
allocated to Premark or any Premark Subsidiary pursuant to this Agreement
shall be deemed to be Premark Liabilities, as defined in the Distribution
Agreement and, in each case, shall be subject to the indemnification
provisions set forth in Article IV thereof.
9
ARTICLE III
Miscellaneous
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Section 3.01 Guarantee of Subsidiaries' Obligations. Each of the parties
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hereto shall cause to be performed, and hereby guarantees the performance and
payment of, all actions, agreements, obligations and liabilities set forth
herein to be performed or paid by any subsidiary of such party which is
contemplated by the Distribution Agreement to be a subsidiary of such party on
or after the Distribution Date.
Section 3.02 Failure of Premark and Tupperware To Agree on Certain
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Determinations. (a) In any case in which Tupperware or Premark shall disagree
--------------
with the determination of an amount which this Agreement requires to be made
by the Enrolled Actuary, each such disagreeing party shall have the right
within 30 days after receipt of notice of such determination to engage at its
own expense, an enrolled actuary to make the determination of such amount. If
the amount determined by such actuaries should differ, such amount shall be
determined by another enrolled actuary selected by agreement between or among
the Enrolled Actuary and the enrolled actuary or enrolled actuaries.
(b) Any other dispute concerning the matters addressed by this Agreement
shall, except as specifically provided in Section 2.12, be subject to the
dispute resolution and arbitration provisions of the Distribution Agreement.
Section 3.03 Sharing of Information. Each of Premark and Tupperware shall,
----------------------
and shall cause each of their respective Subsidiaries to, provide to the other
all such information in its possession as the other may reasonably request to
enable it to administer its employee benefit plans and programs, and to
determine the scope of, and fulfill, its obligations under this Agreement.
Such information shall, to the extent reasonably practicable, be provided in
the format and at the times and places requested, but in no event shall the
party providing such information be obligated to incur any direct expense not
reimbursed by the party making such request, nor to make such information
available outside its normal business hours and premises. The right of the
parties to receive information hereunder shall, without limiting the
generality of the foregoing, extend to any and all reports, and the data
underlying such reports, prepared by the Enrolled Actuary in making any
determination under this Agreement or by any third party engaged pursuant to
Section 2.12.
Section 3.04 Governing Law. Subject to applicable federal law, this
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Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware, without regard to the principles of conflicts of laws
thereof.
Section 3.05 Notices. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and shall be delivered by hand,
mailed by registered or certified mail (return receipt requested), or sent by
cable, telegram, telex or telecopy (confirmed by regular, first-class mail),
to the parties at the following addresses (or at such other addresses for a
party as shall be specified by like notice) and shall be deemed given on the
date on which such notice is received:
if to Premark:
Premark International, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
if to Tupperware:
Tupperware Corporation
14901 South Orange ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
10
Section 3.06 Amendments. This Agreement may not be modified or amended
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except by an agreement in writing signed by the parties.
Section 3.07 Successors and Assigns. This Agreement and all of the
----------------------
provisions hereof shall be binding upon and inure to the benefit of the
parties and their respective successors and permitted assigns.
Section 3.08 Termination. This Agreement shall be terminated in the event
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that the Distribution Agreement is terminated and the Distribution abandoned
prior to the Distribution Date. In the event of such termination, neither
party shall have any liability of any kind to the other party.
Section 3.09 Rights to Amend or Terminate Plans; No Third Party
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Beneficiaries. No provision of this Agreement shall be construed (a) to limit
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the right of Premark, any Premark Subsidiary, Tupperware or any Tupperware
Subsidiary to amend any plan or terminate any plan, or (b) to create any right
or entitlement whatsoever in any employee or beneficiary including, without
limitation, a right to continued employment or to any benefit under a plan or
any other benefit or compensation. This Agreement is solely for the benefit of
the parties hereto and their respective subsidiaries and should not be deemed
to confer upon third parties any remedy, claim, liability, reimbursement,
claim of action or other right in excess of those existing without reference
to this Agreement.
Section 3.10 Titles and Headings. Titles and headings to sections herein are
-------------------
inserted for the convenience of reference only and are not intended to be a
part of or to affect the meaning or interpretation of this Agreement.
Section 3.11 Legal Enforceability. Any provision of this Agreement which is
--------------------
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
In Witness Whereof, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
Premark International, Inc.
By: _________________________________
Name:
Title:
Tupperware Corporation
By: _________________________________
Name:
Title:
11
SCHEDULE A
EMPLOYMENT AGREEMENTS
TO BE ASSUMED BY
TUPPERWARE
Letter Agreement dated November 9, 1992 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Premark
International, Inc. (signed by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇)
SCHEDULE B
INDIVIDUALS TO HAVE
CHANGE OF CONTROL
EMPLOYMENT AGREEMENTS
WITH TUPPERWARE
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▇▇▇▇▇▇▇▇▇ ▇. Skroeder
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EXHIBIT A
FORM OF CHANGE OF CONTROL
EMPLOYMENT AGREEMENT
