Exhibit 10.2
EMPLOYEE BENEFITS AGREEMENT
by and between
FMC CORPORATION
and
FMC TECHNOLOGIES, INC.
Dated as of May 30, 2001
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS................................................................................... 1
1.1 Aetna Annuity...................................................................................... 1
1.2 Agreement ......................................................................................... 1
1.3 ASO Contract ...................................................................................... 1
1.4 Auditing Party .................................................................................... 1
1.5 Award ............................................................................................. 1
1.6 Benefits and Employee Services Organization ....................................................... 2
1.7 Benefits Database.................................................................................. 2
1.8 Change ............................................................................................ 2
1.9 Close of the Distribution Date .................................................................... 2
1.10 COBRA ............................................................................................. 2
1.11 Code .............................................................................................. 2
1.12 Defined Contribution Plan ......................................................................... 2
1.13 Defined Contribution Plan for Bargaining Unit Employees ........................................... 2
1.14 Distribution Date Ratio ........................................................................... 2
1.15 DOL ............................................................................................... 2
1.16 Enrolled Actuary .................................................................................. 2
1.17 ERISA ............................................................................................. 2
1.18 Excluded Liabilities .............................................................................. 2
1.19 Executive Benefit Plans ........................................................................... 3
1.20 Flexible Benefits Plan ............................................................................ 3
1.21 FMLA .............................................................................................. 3
1.22 Foreign Plans ..................................................................................... 3
1.23 Group Insurance Policies .......................................................................... 3
1.24 Group Life Program ................................................................................ 3
1.25 HCFA .............................................................................................. 3
1.26 Health and Welfare Plans .......................................................................... 3
1.27 HMO ............................................................................................... 3
1.28 HMO Agreements .................................................................................... 3
1.29 Immediately after the Distribution Date ........................................................... 4
1.30 Incentive Plan .................................................................................... 4
1.31 Individual Agreement .............................................................................. 4
1.32 Initial Pension Transfer
1.33 IPO Ratio.......................................................................................... 4
1.34 IRS ............................................................................................... 4
1.35 Leave of Absence .................................................................................. 4
1.36 Legally Permissible ............................................................................... 4
1.37 Material Feature .................................................................................. 4
1.38 Medical Plan ...................................................................................... 4
1.39 Non-Employee Director ............................................................................. 4
1.40 Non-Employee Director Plan ........................................................................ 5
1.41 Non-parties ....................................................................................... 5
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1.42 Option ............................................................................................ 5
1.43 Outsource ......................................................................................... 5
1.44 Parent ............................................................................................ 5
1.45 Parent Distribution Date Stock Value............................................................... 5
1.46 Parent Entity...................................................................................... 5
1.47 Parent Executive................................................................................... 5
1.48 Parent IPO Stock Value............................................................................. 5
1.49 Parent Leave of Absence Programs................................................................... 5
1.50 Parent LTD Plan.................................................................................... 5
1.51 Parent Transfer Date Stock Value................................................................... 5
1.52 Parent Transferred Employee........................................................................ 6
1.53 Parent WCP......................................................................................... 6
1.54 Participating Company.............................................................................. 6
1.55 PBGC .............................................................................................. 6
1.56 Pension Interest................................................................................... 6
1.57 Pension Plan....................................................................................... 6
1.58 Plan .............................................................................................. 6
1.59 Prudential Annuity................................................................................. 6
1.60 Puerto Rico Medical and Dental Plan................................................................ 7
1.61 Puerto Rico Pension Plan........................................................................... 7
1.62 Puerto Rico Savings Plan........................................................................... 7
1.63 QDRO .............................................................................................. 7
1.64 QMCSO ............................................................................................. 7
1.65 Rabbi Trusts....................................................................................... 7
1.66 Savings Plan(s).................................................................................... 7
1.67 Separation and Distribution Agreement.............................................................. 7
1.68 Supplemental Pension Plan.......................................................................... 7
1.69 Technologies....................................................................................... 7
1.70 Technologies Administrative Employees.............................................................. 7
1.71 Technologies Distribution Date Stock Value......................................................... 8
1.72 Technologies Entity................................................................................ 8
1.73 Technologies Individual............................................................................ 8
1.74 Technologies IPO Stock Value....................................................................... 8
1.75 Technologies Transfer Date Stock Value............................................................. 8
1.76 Technologies WCP Claims............................................................................ 8
1.77 Transfer Date...................................................................................... 8
1.78 Transfer Date Ratio................................................................................ 8
1.79 Transferred Individual............................................................................. 8
1.80 VEBA .............................................................................................. 9
1.81 VEBA Plans......................................................................................... 9
ARTICLE II. GENERAL PRINCIPLES............................................................................ 9
2.1 Assumption of Liabilities.......................................................................... 9
2.2 Technologies Participation in Parent Plans......................................................... 9
2.3 Establishment of Technologies Plans................................................................ 10
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2.4 Terms of Participation by Transferred Individuals in Technologies
Plans and Technologies Non-Employee Directors in the Technologies
Non-Employee Director Plan......................................................................... 11
2.5 Procedures for Amendments to Plans, Plan Designs, Administrative Practices and Vendor Contracts.... 12
2.6 Best Efforts....................................................................................... 13
2.7 Regulatory Compliance.............................................................................. 13
ARTICLE III. DEFINED BENEFIT PLANS........................................................................ 13
3.1 Assumption of Certain Assets and Certain Liabilities by Technologies Pension Plan.................. 13
3.2 Pension Asset Transfers............................................................................ 14
3.3 Assumption of Parent Puerto Rico Pension Plan...................................................... 14
ARTICLE IV. DEFINED CONTRIBUTION PLANS.................................................................... 14
4.1 Defined Contribution Plans and Defined Contribution Plan for Bargaining
Unit Employees..................................................................................... 14
4.2 Defined Contribution Plan Asset Transfer........................................................... 15
4.3 Assumption of Parent Puerto Rico Savings Plan...................................................... 15
ARTICLE V. HEALTH AND WELFARE PLANS....................................................................... 15
5.1 Assumption of Health and Welfare Plans' Liabilities................................................ 15
5.2 Establishment of Mirror VEBA....................................................................... 16
5.3 VEBA Asset Transfers............................................................................... 16
5.4 Investments of and Distribution from VEBAs......................................................... 16
5.5 Vendor Contracts................................................................................... 16
5.6 Parent Long-Term Disability........................................................................ 18
5.7 Post-Retirement Health and Life Insurance Benefits................................................. 18
5.8 COBRA.............................................................................................. 19
5.9 Leave of Absence Programs.......................................................................... 19
5.10 Parent Workers' Compensation Program............................................................... 20
5.11 Post-Distribution Transitional Arrangements........................................................ 22
ARTICLE VI. EXECUTIVE BENEFITS AND NON-EMPLOYEE DIRECTOR
BENEFITS...................................................................................... 23
6.1 Assumption of Obligations.......................................................................... 23
6.2 Consents, Notifications and Assignments............................................................ 23
6.3 Parent Incentive Plans............................................................................. 24
6.4 Parent Award Deferrals............................................................................. 25
6.5 Non-Employee Director Benefits..................................................................... 25
6.6 Rabbi Trust........................................................................................ 27
ARTICLE VII. OTHER BENEFITS............................................................................... 28
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ARTICLE VIII. GENERAL AND ADMINISTRATIVE................................................................... 28
8.1 Payment of Administrative Costs and Expenses....................................................... 28
8.2 Payment of Liabilities, Plan Expenses and Related Matters.......................................... 29
8.3 Sharing of Participant Information................................................................. 30
8.4 Reporting and Disclosure and Communications to Participants........................................ 30
8.5 Non-Termination of Employment; No Third-Party Beneficiaries........................................ 30
8.6 Plan Audits........................................................................................ 31
8.7 Beneficiary Designations........................................................................... 31
8.8 Requests for IRS Rulings and DOL Opinions.......................................................... 32
8.9 Fiduciary Matters.................................................................................. 32
8.10 Payroll Taxes and Reporting of Compensation........................................................ 32
8.11 Collective Bargaining.............................................................................. 33
8.12 Consent of Third Parties........................................................................... 33
ARTICLE IX. FOREIGN PLANS................................................................................... 33
ARTICLE X. MISCELLANEOUS................................................................................... 34
10.1 Effect If Distribution Does Not Occur.............................................................. 34
10.2 Relationship of Parties............................................................................ 34
10.3 Affiliates......................................................................................... 34
10.4 Incorporation of Separation and Distribution Agreement Provisions.................................. 34
10.5 Governing Law...................................................................................... 35
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EMPLOYEE BENEFITS AGREEMENT
RECITALS
This EMPLOYEE BENEFITS AGREEMENT (this "Agreement"), dated as of May 30,
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2001 is by and between FMC CORPORATION, a Delaware corporation ("Parent"), and
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FMC TECHNOLOGIES, INC., a Delaware corporation and a wholly owned subsidiary of
Parent ("Technologies").
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WHEREAS, the Board of Directors of Parent has determined that it is in the
best interests of Parent and its stockholders to separate Parent's existing
businesses into two independent companies;
WHEREAS, in furtherance of the foregoing, Parent and Technologies have
entered into a Separation and Distribution Agreement, dated as of the date
hereof (the "Separation and Distribution Agreement") and certain other
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agreements that will govern certain matters relating to the Separation and the
Contribution, the IPO, the Distribution and the relationship of Parent,
Technologies, and their respective Subsidiaries following the IPO and the
Distribution; and
WHEREAS, pursuant to the Separation and Distribution Agreement, Parent and
Technologies have agreed to enter into this Agreement allocating assets,
liabilities and responsibilities with respect to certain employee and director
compensation and benefit plans and programs between them.
NOW, THEREFORE, in consideration of the premises, and of the agreements set
forth herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Any capitalized terms that are used in this Agreement but not defined
herein (other than the names of Parent employee benefit plans) shall have the
meanings set forth in the Separation and 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):
1.1 Aetna Annuity means the non-participating group annuity contract
issued by Aetna Life Insurance Company funding a portion of the Parent Pension
Plan.
1.2 Agreement means this Employee Benefits Agreement, including all the
Schedules and Exhibits hereto.
1.3 ASO Contract is defined in Section 5.5(a)(i).
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1.4 Auditing Party is defined in Section 8.6(a)(i).
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1.5 Award means an award under an Incentive Plan.
1.6 Benefits and Employee Services Organization means the Employee Service
Center and corporate human resources department, including human resources
information systems and relocation, each of which shall be a part of Parent
through April 30, 2001 and each of which shall become a part of Technologies
effective as of May 1, 2001.
1.7 Benefits Database is defined in Section 5.11(c)(iii).
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1.8 Change is defined in Section 2.5(b)(i).
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1.9 Close of the Distribution Date means 11:59:59 P.M. City of Chicago
time on the Distribution Date.
1.10 COBRA means the continuation coverage requirements for "group health
plans" under Title X of the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended, and as codified in Section 4980B of the Code and Sections 601
through 608 of ERISA.
1.11 Code means the Internal Revenue Code of 1986, as amended, or any
successor Federal income tax law. Reference to a specific Code provision also
includes any proposed, temporary or final regulation in force under that
provision.
1.12 Defined Contribution Plan, when immediately preceded by "Parent,"
means the FMC Corporation Savings and Investment Plan. When immediately preceded
by "Technologies," Defined Contribution Plan means the plan to be established by
Technologies pursuant to Section 2.3 that corresponds to both the Parent Defined
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Contribution Plan and the Parent Defined Contribution Plan for Bargaining Unit
Employees.
1.13 Defined Contribution Plan for Bargaining Unit Employees means the FMC
Corporation Savings and Investment Plan for Bargaining Unit Employees.
1.14 Distribution Date Ratio means the amount obtained by dividing the
Parent Distribution Date Stock Value by the Technologies Distribution Date Stock
Value.
1.15 DOL means the United States Department of Labor.
1.16 Enrolled Actuary means Xxxxxx Associates, 000 Xxxx Xxx Xxxx,
Xxxxxxxxxxxx, Xxxxxxxx 00000.
1.17 ERISA means the Employee Retirement Income Security Act of 1974, as
amended. Reference to a specific provision of ERISA also includes any proposed,
temporary or final regulation in force under that provision.
1.18 Excluded Liabilities means any Liabilities to or relating to Parent
Transferred Employees and their respective dependents and beneficiaries relating
to, arising out of or resulting from employment by Technologies or a
Technologies Entity before becoming Parent Transferred Employees or employment
by Parent or a Parent Entity (including, without limitation, Liabilities under
Parent Plans).
1.19 Executive Benefit Plans, when immediately preceded by "Parent," means
the executive benefit and nonqualified plans, programs and arrangements
established, maintained, agreed upon or assumed by Parent or a Parent Entity for
the benefit of executive employees and former executive employees of Parent or a
Parent Entity before the Close of the Distribution Date, as set forth on
Schedule A. When immediately preceded by "Technologies," Executive Benefit Plans
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means the plans to be established by Technologies pursuant to Section 2.3 that
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correspond to the respective Parent Executive Benefit Plans. Executive Benefit
Plans do not include Foreign Plans.
1.20 Flexible Benefits Plan, when immediately preceded by "Parent," means
the FMC Flexible Benefits Plan. When immediately preceded by "Technologies,"
Flexible Benefits Plan means the portion of the plan to be established by
Technologies pursuant to Section 2.3 that corresponds to the Parent Flexible
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Benefits Plan.
1.21 FMLA means the Family and Medical Leave Act of 1993, as amended.
1.22 Foreign Plans, when immediately preceded by "Parent," means the plans,
programs and arrangements established, maintained, agreed upon or assumed by
Parent or a Parent Entity primarily for the benefit of individuals substantially
all of whom are nonresident aliens of the United States before the Close of
Distribution Date, as set forth on Schedule B. When immediately preceded by
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"Technologies," Foreign Plans means the plans to be established by Technologies
pursuant to Section 2.3 that correspond to the respective Parent Foreign Plans.
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1.23 Group Insurance Policies is defined in Section 5.5(b)(i).
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1.24 Group Life Program, when immediately preceded by "Parent," means the
portion of the FMC Corporation Welfare Benefits Plan that provides group basic
life insurance coverage, and the portion of the Parent VEBA, if any, that
provides group supplemental life insurance coverage for the benefit of employees
and retirees of Parent and certain Parent entities established, maintained,
agreed upon or assumed by Parent or a Parent Entity before the Close of the
Distribution Date. When immediately preceded by "Technologies," Group Life
Program means the plans to be established by Technologies pursuant to Section
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2.3 that correspond to the respective Parent Group Life Program.
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1.25 HCFA means the Health Care Financing Administration.
1.26 Health and Welfare Plans, when immediately preceded by "Parent," means
the health and welfare plans, programs and arrangements established and
maintained, agreed upon or assumed by Parent or a Parent Entity for the benefit
of employees and retirees of Parent and certain Parent Entities, before the
Close of the Distribution Date, as set forth on Schedule C. When immediately
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preceded by "Technologies," Health and Welfare Plans means the plans to be
established by Technologies pursuant to Section 2.3 that correspond to the
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respective Parent Health and Welfare Plans. Health and Welfare Plans do not
include Foreign Plans.
1.27 HMO means a health maintenance organization that provides insured
benefits under the Parent Medical Plans or the Technologies Medical Plans.
1.28 HMO Agreements is defined in Section 5.5(c)(i).
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1.29 Immediately after the Distribution Date means 12:00 A.M. City of
Chicago time on the day after the Distribution Date.
1.30 Incentive Plan, when immediately preceded by "Parent," means any of
the cash and stock-based incentive plans, programs and arrangements established,
maintained, agreed upon or assumed by Parent for the benefit of employees of
Parent or a Parent Entity before the Close of the Distribution Date, as set
forth on Schedule D. When immediately preceded by "Technologies," Incentive Plan
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means the Incentive Plan to be established by Technologies pursuant to Section
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2.3 that corresponds to the Parent Incentive Plan and the Parent Non-Employee
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Director Plan. Incentive Plans do not include Foreign Plans.
1.31 Individual Agreement means an individual contract or agreement
(whether written or unwritten) entered into between Parent, a Parent Entity,
Technologies or a
Technologies Entity and a Parent Executive that establishes the right of such
individual to special executive compensation or benefits, including, without
limitation, supplemental pension benefit, hiring bonus, loan, guaranteed
payment, special allowance, tax equalization or disability benefit.
1.32 Initial Pension Transfer means an amount estimated by the Enrolled
Actuary to be equal to eighty-five percent (85%) of the amount described in
Section 3.2(a) as of the close of business on April 30, 2001.
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1.33 IPO Ratio means the amount obtained by dividing the Parent IPO Stock
Value by the Technologies IPO Stock Value.
1.34 IRS means the Internal Revenue Service.
1.35 Leave of Absence means any authorized leave of absence, including,
without limitation, leaves of absence for short-term disability, long-term
disability and workers' compensation.
1.36 Legally Permissible is defined in Section 5.10(a)(iv).
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1.37 Material Feature means any feature of a Plan that could reasonably be
expected to be of material importance to the sponsoring employer or the
participants and beneficiaries of the Plan, which could include, depending on
the type and purpose of the particular Plan, the class or classes of employees
eligible to participate in such Plan, the nature, type, form, source and level
of benefits provided by the employer under such Plan and the amount or level of
contributions, if any, required to be made by participants (or their dependents
or beneficiaries) to such Plan.
1.38 Medical Plan, when immediately preceded by "Parent," means the portion
of the FMC Corporation Welfare Benefits Plan that provides medical benefits to
employees and retirees of Parent and certain Parent Entities established,
maintained, agreed upon or assumed by Parent or a Parent Entity. When
immediately preceded by "Technologies," Medical Plan means the portion of the
plan to be established by Technologies pursuant to Section 2.3 that corresponds
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to the Parent Medical Plan.
1.39 Non-Employee Director, when immediately preceded by "Parent," means a
member of Parent's Board of Directors who is not an employee of Parent, a Parent
Entity, Technologies or a Technologies Entity, and who is not a Technologies
Non-Employee Director. When immediately preceded by "Technologies," Non-Employee
Director means a member of Technologies' Board of Directors who is not an
employee of Parent, a Parent Entity, Technologies or a Technologies Entity, and
who is not a Parent Non-Employee Director. When immediately preceded by "Parent
and Technologies," Non-Employee Director means a member of Parent's Board of
Directors and Technologies' Board of Directors who is not an employee of Parent,
a Parent Entity, Technologies or a Technologies Entity.
1.40 Non-Employee Director Plan, when immediately preceded by "Parent,"
means the FMC Corporation Compensation Plan for Non-Employee Directors, and when
immediately preceded by "Technologies," Non-Employee Director Plan means the
portion of the Technologies Incentive Plan to be established by Technologies
pursuant to Section 2.3 that corresponds to the Parent Non-Employee Director
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Plan.
1.41 Non-parties is defined in Section 8.6(a)(ii).
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1.42 Option, when immediately preceded by "Parent," means an option to
purchase Parent Common Stock. When immediately preceded by "Technologies,"
Option means an option to purchase Technologies Common Stock, in each case
pursuant to an Incentive Plan.
1.43 Outsource is defined in Section 5.10(a)(iii).
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1.44 Parent is defined in the first paragraph of Recitals to this
Agreement.
1.45 Parent Distribution Date Stock Value means the closing price of the
Parent Common Stock as listed on the NYSE on the Distribution Date.
1.46 Parent Entity means any Person that is, at the relevant time, an
Affiliate of Parent, except that, for periods beginning on and after the
Assumption Time, the term "Parent Entity" shall not include Technologies or a
Technologies Entity.
1.47 Parent Executive means an employee or former employee of Parent, a
Parent Entity, Technologies or a Technologies Entity, who immediately before the
Close of the Distribution Date is eligible to participate in or receive a
benefit under any Parent Executive Benefit Plan.
1.48 Parent IPO Stock Value means the closing price of the Parent Common
Stock as listed on the NYSE on the trading day immediately preceding the IPO
Date.
1.49 Parent Leave of Absence Programs means the Short-Term Disability
Leave, Union Business Leave, Military Leave, FMLA Leave and any other leave
programs offered from time to time under the personnel policies and practices of
Parent.
1.50 Parent LTD Plan means the FMC Long-Term Disability Plan.
1.51 Parent Transfer Date Stock Value means, with respect to any
Technologies Administrative Employee, the closing price of the Parent Common
Stock as listed on the NYSE on the trading day immediately preceding the
Transfer Date.
1.52 Parent Transferred Employee means an individual who (a) on May 1,
2001, is either actively employed by or on Leave of Absence from Technologies or
a Technologies Entity, if such individual is part of a work group or
organization that, at any time before the Close of the Distribution Date, moves
to the employ of Parent or a Parent Entity; (b) on May 1, 2001, is either
actively employed by or on Leave of Absence from a Parent Entity that becomes a
Technologies Entity before the Close of the Distribution Date, if such
individual, at any time before the Close of the Distribution Date, moves to the
employ of Parent or a Parent Entity that does not become a Technologies Entity
before the Close of the Distribution Date; or (c) on May 1, 2001, is either
actively employed by or on Leave of Absence from Technologies or a Technologies
Entity in a common support function, is at any time before the Close of the
Distribution Date designated by Parent for transfer to Parent or a Parent Entity
and, at any time after May 1, 2001 and before the Close of the Distribution
Date, moves to the employ of Parent
or a Parent Entity. In addition, Parent and Technologies may designate, by
mutual agreement, any other individual or group of individuals as Parent
Transferred Employees.
1.53 Parent WCP means the Parent Workers' Compensation Program, comprised
of the various arrangements established by Parent or a Parent Entity to comply
with the workers' compensation requirements of the states in which Parent and
its Affiliates conduct business.
1.54 Participating Company means (a) Parent, and (b) any Person, other than
an individual, that is, by the terms of such a Plan, participating in such Plan
or has any employees who are, by the terms of such Plan, participating in such
Plan.
1.55 PBGC means the Pension Benefit Guaranty Corporation.
1.56 Pension Interest means the amount of the net earnings or losses, as
the case may be, on the average of the daily balances of (a) the amount
described by Section 3.2(a), less (b) the amount described by Section 3.2(b),
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less (c) the Initial Pension Transfer, based upon the actual rate of return
earned by the Parent Pension Plan for each full month from May 1, 2001 and prior
to the date of asset transfer, and based upon an interest rate of six and one-
half percent (6.5%) per annum for the period beginning on the first day of the
month containing the asset transfer date and ending on the date immediately
preceding the date of asset transfer.
1.57 Pension Plan, when immediately preceded by "Parent," means the FMC
Corporation Employees' Retirement Program. When immediately preceded by
"Technologies," Pension Plan means the pension plan to be established by
Technologies pursuant to Section 2.3 that corresponds to the Parent Pension
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Plan.
1.58 Plan, when immediately preceded by "Parent" or "Technologies," means
any plan, policy, program, payroll practice, on-going arrangement, contract,
trust, annuity contract, insurance policy or other agreement or funding vehicle
providing benefits to employees, former employees, dependents of employees or
former employees, or Non-Employee Directors of Parent or Technologies or Parent
and Technologies, as applicable, other than Foreign Plans.
1.59 Prudential Annuity means the participating group annuity contract
issued by The Prudential Insurance Company of America funding a portion of the
Parent Pension Plan.
1.60 Puerto Rico Medical and Dental Plan, when immediately preceded by
"Parent," means the FMC Puerto Rico Medical and Dental Plan. When immediately
preceded by "Technologies," Puerto Rico Medical and Dental Plan means the Parent
Puerto Rico Medical and Dental Plan to be assumed by Technologies pursuant to
Section 2.3.
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1.61 Puerto Rico Pension Plan, when immediately preceded by "Parent," means
the FMC Puerto Rico Retirement Plan. When immediately preceded by
"Technologies," Puerto Rico Pension Plan means the Parent Puerto Rico Pension
Plan to be assumed by Technologies pursuant to Section 2.3.
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1.62 Puerto Rico Savings Plan, when immediately preceded by "Parent," means
the FMC Puerto Rico Savings and Investment Plan. When immediately preceded by
"Technologies," Puerto Rico Savings Plan means the Parent Puerto Rico Savings
Plan to be assumed by Technologies pursuant to Section 2.3.
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1.63 QDRO means a domestic relations order which qualifies under Section
414(p) of the Code and Section 206(d) of ERISA and which creates or recognizes
an alternate payee's right to, or assigns to an alternate payee, all or a
portion of the benefits payable to a participant under the Parent Pension Plan
and/or one of the Parent Savings Plans.
1.64 QMCSO means a medical child support order which qualifies under
Section 609(a) of ERISA and which creates or recognizes an alternate recipient's
right to, or assigns to an alternate recipient the right to, receive benefits
for which a participant or beneficiary is eligible under a Parent Medical Plan.
1.65 Rabbi Trusts, when immediately preceded by "Parent," means the FMC
Executive Severance Trust, the FMC Supplemental Pension Trust, the FMC Non-
Qualified Retirement and Thrift Trust and the Moorco International, Inc.
Executive Retirement Trust. When immediately preceded by "Technologies," Rabbi
Trust means the grantor trusts to be established by Technologies pursuant to
Section 6.6(a) that correspond to the respective Parent Rabbi Trusts.
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1.66 Savings Plan(s), when immediately preceded by "Parent," means the
Parent Defined Contribution Plan and the Parent Defined Contribution Plan for
Bargaining Unit Employees. When immediately preceded by "Technologies," Savings
Plan means the Technologies Defined Contribution Plan.
1.67 Separation and Distribution Agreement is defined in the third
paragraph of the Recitals to this Agreement.
1.68 Supplemental Pension Plan, when immediately preceded by "Parent,"
means the Parent Salaried Employees' Equivalent Retirement Plan. When
immediately preceded by "Technologies," Supplemental Pension Plan means the
supplemental pension plan to be established by Technologies that corresponds to
the Parent Supplemental Pension Plan pursuant to Section 2.3.
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1.69 Technologies is defined in the first paragraph of Recitals to this
Agreement.
1.70 Technologies Administrative Employees is defined in Section 8.1(b).
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1.71 Technologies Distribution Date Stock Value means the closing price of
the Technologies Common Stock as listed on the NYSE on the Distribution Date.
1.72 Technologies Entity means any Person that is, at the relevant time, a
Subsidiary or an Affiliate of Technologies.
1.73 Technologies Individual means any individual other than any Parent
Transferred Employee who (a) on May 1, 2001, is either actively employed by or
on Leave of Absence from Technologies or a Technologies Entity; (b) is either
actively employed by or on Leave of Absence from Parent or a Parent Entity and
moves from the employ of Parent or a Parent Entity to the employ of Technologies
or a Technologies Entity before the Close of the Distribution
Date; (c) is either actively employed by or on Leave of Absence from a Parent
Entity that becomes a Technologies Entity before the Close of the Distribution
Date; or (d) is a Technologies Administrative Employee. In addition, Parent and
Technologies may designate, by mutual agreement, any other individual or group
of individuals as Technologies Individuals.
1.74 Technologies IPO Stock Value means the initial public offering price
of the Technologies Common Stock offered to investors in the IPO.
1.75 Technologies Transfer Date Stock Value means, with respect to a
Technologies Individual, the closing price of the Technologies Common Stock as
listed on the NYSE on the trading day immediately preceding the Transfer Date.
1.76 Technologies WCP Claims is defined in Section 5.10(a)(i).
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1.77 Transfer Date means, with respect to a Technologies Administrative
Employee, the later of the Distribution Date and the date he or she becomes a
Technologies Individual.
1.78 Transfer Date Ratio means, with respect to a Technologies
Administrative Employee, the amount obtained by dividing the Parent Transfer
Date Stock Value with respect to such Technologies Administrative Employee by
the Technologies Transfer Date Stock Value with respect to such Technologies
Administrative Employee.
1.79 Transferred Individual means any individual who, as of the Close of
the Distribution Date (or with respect to the Technologies Pension Plan and the
Technologies Supplemental Pension Plan any individual who, as of May 1, 2001)
is: (a) either actively employed by or on Leave of Absence from Technologies or
a Technologies Entity; or (b) neither actively employed by, nor on a Leave of
Absence from, Technologies or a Technologies Entity, but who (i) was a
Technologies Individual, or (ii) whose most recent active employment with Parent
or a past or present Affiliate of Parent was with one of the corporate divisions
constituting part of the Technologies Business, as set forth on Schedule E.
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Transferred Individuals shall also include the Technologies Administrative
Employees from and after the Transfer Date. An alternate payee under a QDRO, an
alternate recipient under a QMCSO, a beneficiary or a covered dependent, in each
case, of an employee or former employee described in either of the preceding two
sentences shall also be a Transferred Individual with respect to that employee's
or former employee's benefit under the applicable Plans. Such an alternate
payee, alternate recipient, beneficiary or covered dependent shall not otherwise
be considered a Transferred Individual with respect to his or her own benefits
under any applicable Plans unless he or she is a Transferred Individual by
virtue of either of the first two sentences of this definition. In addition,
Parent and Technologies may designate, by mutual agreement, any other
individuals, or group of individuals, as Transferred Individuals. An individual
may be a Transferred Individual pursuant to this definition regardless of
whether such individual is or was a Technologies Individual and regardless of
whether such individual is, as of the Distribution Date (or, with respect to the
Technologies Pension Plan and the Technologies Supplemental Pension Plan, May 1,
2001), alive, actively employed, on a temporary Leave of Absence from active
employment, on layoff, terminated from employment, retired or on any other type
of employment or post-employment status relative to a Parent Plan, and
regardless of whether, as of the Close of the Distribution
Date (or, with respect to the Technologies Pension Plan and the Technologies
Supplemental Pension Plan, May 1, 2001), such individual is then receiving any
benefits from a Parent Plan.
1.80 VEBA, when immediately preceded by "Parent," means the FMC Master
Welfare Benefits Trust. When immediately preceded by "Technologies," VEBA means
the trust, if any, to be established by Technologies pursuant to Section 2.3
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that corresponds to the Parent VEBA.
1.81 VEBA Plans is defined in Section 5.3.
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ARTICLE II
GENERAL PRINCIPLES
2.1 Assumption of Liabilities. Technologies hereby assumes and agrees to
pay, perform, fulfill and discharge, in accordance with their respective terms,
all of the following, regardless of when or where such Liabilities arose or
arise or were or are incurred, except as expressly provided otherwise in this
Agreement: (a) all Liabilities to or relating to Technologies Individuals and
Transferred Individuals, and their respective dependents and beneficiaries, in
each case relating to, arising out of or resulting from employment by Parent or
a Parent Entity before becoming Technologies Individuals or Transferred
Individuals, respectively, including, without limitation, Liabilities under
Parent Plans and Technologies Plans; (b) all other Liabilities to or relating to
Technologies Individuals, Transferred Individuals and other employees or former
employees of Technologies or a Technologies Entity, and their respective
dependents and beneficiaries, in each case relating to, arising out of or
resulting from future, present or former employment with Technologies or a
Technologies Entity, including, without limitation, Liabilities under Parent
Plans and Technologies Plans; (c) all Liabilities relating to, arising out of or
resulting from any other actual or alleged employment relationship with
Technologies or a Technologies Entity, including, without limitation, all
Liabilities relating to, arising out of or resulting from any collective
bargaining agreement covering any Technologies Individuals or Transferred
Individuals; and (d) all other Liabilities relating to, arising out of or
resulting from obligations and responsibilities expressly assumed or retained by
Technologies, a Technologies Entity, or a Technologies Plan pursuant to this
Agreement. Notwithstanding the foregoing, Technologies shall not, by virtue of
any provision of this Agreement or the Separation and Distribution Agreement, be
deemed to have assumed any Excluded Liabilities.
2.2 Technologies Participation in Parent Plans.
(a) Participation in Parent Plans. Effective as of May 1, 2001 and
subject to the terms and conditions of this Agreement, Technologies and each
Technologies Entity that is not, as of the date hereof, a Participating Company
in any Parent Plan shall become a Participating Company in each Parent Plan,
other than the Parent Pension Plan and the Parent Supplemental Pension Plan, to
the extent in effect as of May 1, 2001. Effective as of May 1, 2001 each
Technologies Entity that is, as of the date of this Agreement, a Participating
Company in a Parent Plan shall continue as such; provided, however, that each
Technologies Entity that is, as of the date of this Agreement, a Participating
Company in the Parent Pension Plan and the Parent Supplemental Pension Plan
shall cease being a Participating Company in the Parent Pension Plan and the
Parent Supplemental Pension Plan effective as of May 1, 2001. Notwithstanding
the foregoing, the Foreign Plans shall be governed by Article IX hereof.
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(b) Parent's General Obligations as Plan Sponsor. Effective May 1,
2001, Parent shall transfer responsibility to Technologies to administer, or
cause to be administered, in accordance with their terms and applicable law, the
Parent Plans, and from and after May 1, 2001 through December 31, 2002,
Technologies shall have the sole discretion and authority to interpret the
Parent Plans as set forth therein consistent with Section 2.5(e).
(c) Technologies' General Obligations as Participating Company.
Technologies shall perform with respect to its participation in the Parent
Plans, and shall cause each Technologies Entity with respect to its
participation in the Parent Plans to perform, the duties of a Participating
Company as set forth in such Plans or any procedures adopted pursuant thereto,
including, without limitation: (i) assisting in the administration of claims to
the extent requested by the claims administrator of the applicable Parent Plan;
(ii) cooperating fully with Parent Plan auditors, benefit personnel and benefit
vendors; (iii) preserving the confidentiality of all financial arrangements
Parent has or may have with any vendors, claims administrators, trustees or any
other entity or individual with whom Parent has entered into an agreement
relating to the Parent Plans; and (iv) preserving the confidentiality of all
participant health information. From and after May 1, 2001 through December 31,
2002, Parent shall perform and shall cause each Parent Entity to perform the
duties described above as if it were a Participating Company.
(d) Termination of Participating Company Status. Effective as of May
1, 2001, each of Technologies and each Technologies Entity shall cease to be a
Participating Company in the Parent Pension Plan and the Parent Supplemental
Pension Plan. Effective as of the Close of the Distribution Date, each of
Technologies and each Technologies Entity shall cease to be a Participating
Company in the Parent Plans, other than the Parent Pension Plan and the Parent
Supplemental Pension Plan.
2.3 Establishment of Technologies Plans. Effective as of the Distribution
Date, Technologies shall adopt, cause to be adopted, or shall assume, as
applicable, the Technologies Savings Plan, Technologies Puerto Rico Savings
Plan, Technologies Puerto Rico Pension Plan, Technologies Puerto Rico Medical
and Dental Plan, Technologies Foreign Plans, Technologies Health and Welfare
Plans and Technologies Executive Benefit Plans (other than the Parent
Supplemental Pension Plan) for the benefit of the Transferred Individuals and
other current, future and former employees of Technologies and the Technologies
Entities. The foregoing Technologies Plans as in effect as of the Distribution
Date shall be substantially identical in all Material Features to the
corresponding Parent Plans as in effect as of the Close of the Distribution
Date. Effective as of May 1, 2001, Technologies shall adopt, or cause to be
adopted, the Technologies Pension Plan and the Technologies Supplemental Pension
Plan for the benefit of the Transferred Individuals and other current, future
and former employees of Technologies and the Technologies Entities. The
Technologies Pension Plan and the Technologies Supplemental Pension Plan as in
effect as of May 1, 2001 shall each be substantially identical in all Material
Features to the Parent Pension Plan and the Parent Supplemental Pension Plan as
in effect as of May 1, 2001. Notwithstanding the foregoing, the Foreign Plans
shall be governed by Article IX hereof. Notwithstanding the foregoing, the
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Technologies Incentive Plan, including the Technologies Non-Employee Director
Plan, shall be adopted by Technologies and approved by Parent as sole
shareholder of Technologies, before the IPO Date, to become effective as of May
1, 2001. The Technologies Incentive Plan shall be
substantially identical in all Material Features to the corresponding Parent
Incentive Plan and the Parent Non-Employee Director Plan, except that such
Technologies Incentive Plan shall provide for all stock-based awards to be based
upon Technologies Common Stock rather than Parent Common Stock.
2.4 Terms of Participation by Transferred Individuals in Technologies
Plans and Technologies Non-Employee Directors in the Technologies Non-Employee
Director Plan.
(a) Technologies Plans. The Technologies Plans shall be, with
respect to Transferred Individuals, in all respects the successors in interest
to, and shall not provide benefits that duplicate benefits provided by, the
corresponding Parent Plans. Parent and Technologies shall agree on methods and
procedures, including, without limitation, amending the respective Plan
documents, to prevent Transferred Individuals from receiving duplicative
benefits from the Parent Plans and the Technologies Plans. With respect to
Transferred Individuals, each Technologies Plan shall provide that all service,
all compensation and all other benefit-affecting determinations that, as of the
Close of the Distribution Date, were recognized under the corresponding Parent
Plan shall, as of Immediately after the Distribution Date, receive full
recognition, credit and validity and be taken into account under such
Technologies Plan to the same extent as if such items occurred under such
Technologies Plan, except to the extent that duplication of benefits would
result. The provisions of this Agreement that provide for the transfer of assets
from the Parent Plans to the corresponding Technologies Plans are based upon the
understanding of the parties that each such Technologies Plan will assume all
Liabilities of the corresponding Parent Plan to or relating to Transferred
Individuals, as provided for herein. If any such Liabilities are not effectively
assumed by the appropriate Technologies Plan, then the amount of assets
transferred to the Technologies Plan from the corresponding Parent Plan shall be
recomputed, ab initio, as set forth below but taking into account the retention
of such Liabilities by such Parent Plan, and assets shall be transferred by the
Technologies Plan to the Parent Plan so as to place each such Plan in the
position it would have been in, had the initial asset transfer been made in
accordance with such recomputed amount of assets.
(b) Technologies Non-Employee Director Plan. With respect to the
Technologies Non-Employee Directors who participated in the corresponding Parent
Non-Employee Director Plan prior to the Distribution Date, the Technologies
Non-Employee Director Plan shall be, in all respects the successor in interest
to, and shall not provide benefits that duplicate benefits provided by, the
Parent Non-Employee Director Plan. With respect to the Parent and Technologies
Non-Employee Directors who, prior to the Distribution Date participated in, and
who continue to participate in the corresponding Parent Non-Employee Director
Plan after the Distribution Date, the Technologies Non-Employee Director Plan
shall be the successor in interest to a portion of, and shall not provide
benefits that duplicate benefits provided by the Parent Non-Employee Director
Plan.
2.5 Procedures for Amendments to Plans, Plan Designs, Administrative
Practices and Vendor Contracts.
(a) Amendments to Plan Documents. From May 1, 2001 through
December 31, 2002, no amendment to any Parent Plan or Technologies Plan shall be
effective unless the party intending to amend a Plan has the consent of the
other party, or the amendment is required
by applicable law, or the party intending to amend its Plan has: (i) given the
other party written notice of the intention to amend, accompanied by a copy of
the proposed amendment, at least ninety (90) days in advance of the earlier of
(A) the proposed amendment effective date, or (B) the proposed amendment
adoption date; and (ii) agreed to bear all of the costs of implementing the
amendment incurred by the Benefits and Employee Services Organization, third-
party administrators, insurance companies and other vendors and passed through
to one or both of the parties.
(b) Changes in Vendor Contracts, Group Insurance Policies, Plan
Design and Administration Practices and Procedures.
(i) From May 1, 2001 through December 31, 2002, neither Parent
nor Technologies shall materially modify, or take other action which would have
a material effect on, any of the following (each such modification, a "Change")
without complying with Section 2.5(b)(ii) unless the party intending to make
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such Change has the consent of the other party or such Change is required by law
or is made to comply with the terms of Section 5.5: (A) the termination date,
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administration or operation of (1) an ASO contract between Parent or
Technologies and a third-party administrator, (2) a Group Insurance Policy
issued to Parent or Technologies or (3) an HMO Agreement with Parent or
Technologies; (B) the design of either a Parent Plan or a Technologies Plan; or
(C) the financing, operation, administration or delivery of benefits under
either a Parent Plan or a Technologies Plan.
(ii) Neither Parent nor Technologies shall make any Change
unless the party intending to make the Change has: (A) given the other party
written notice of the intention to make the Change, accompanied by a written
description of the Change, at least ninety (90) days in advance of the proposed
effective date of the Change; and (B) agreed to bear all of the costs of
implementing the Change which are incurred by the Benefits and Employee Services
Organization, all third-party administrators, insurance companies, HMOs and
other vendors and passed through to one or both of the parties.
(c) Other Amendments or Changes. If Parent or Technologies desires to
amend a Plan and/or make a Change that requires compliance with, but cannot
satisfy all of the conditions of Section 2.5(a) or Section 2.5(b)(ii), the party
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desiring to make the amendment or Change may submit a written request for
approval of the amendment or Change, accompanied by a written description of the
amendment or Change, to the Vice President, Human Resources of the party from
which approval is requested. The desired amendment or Change may be implemented
only if approved in writing by the Vice President of Human Resources of both
parties. Notwithstanding the foregoing, the Foreign Plans shall be governed by
Article IX hereof.
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(d) Employee Contributions. Notwithstanding the provisions of Section
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2.5(a) and Section 2.5(b), as of the first January 1 after the Distribution
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Date, Parent and Technologies shall each have the independent right, in its sole
discretion and without compliance with Section 2.5(a) and Section 2.5(b), to
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increase or decrease the amount of employee contributions under its respective
Plans.
(e) Joint Administration. From the date of this Agreement
through December 31, 2002, the management and administration of the Parent
Plans, Technologies Plans, and all ASO Contracts, Group Insurance Policies, HMO
Agreements and other vendor contracts entered into or issued for the
administration of the Parent Plans and/or the Technologies Plans, including,
without limitation, the claims appeals, shall be conducted under the supervision
of the Vice President, Human Resources of Parent and Technologies, on the one
hand, and the Chief Human Resources Officer of Parent, on the other hand, who
shall provide strategic oversight and direction of the cohesive administration
of the Parent Plans and the Technologies Plans. Issues that cannot be resolved
by the Vice President, Human Resources of Parent and Technologies, on the one
hand, and the Chief Human Resources Officer of Parent, on the other hand shall
be decided in accordance with Section 12.1 of the Separation and Distribution
Agreement.
2.6 Best Efforts. Parent and Technologies shall use their reasonable
best efforts to (a) enter into any necessary agreements to accomplish the
assumptions and transfers contemplated by this Agreement; and (b) provide for
the maintenance of the necessary participant records, the appointment of the
trustees and the engagement of recordkeepers, investment managers, providers,
insurers, etc.
2.7 Regulatory Compliance. Parent and Technologies shall, in
connection with the actions taken pursuant to this Agreement, cooperate in
making any and all appropriate filings required under the Code, ERISA 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
Agreement in a timely manner.
ARTICLE III
DEFINED BENEFIT PLANS
3.1 Assumption of Certain Assets and Certain Liabilities by
Technologies Pension Plan. Parent shall cause the Parent Pension Plan to
transfer to the Technologies Pension Plan assets equal to the amounts described
in Section 3.2 at such times as described in Section 3.2. The Technologies
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Pension Plan shall assume all Liabilities for benefits payable to Transferred
Individuals under the Parent Pension Plan as of the later of May 1, 2001 and the
Transfer Date of such Transferred Individual, and, neither Parent nor the Parent
Pension Plan shall retain Liabilities for such benefits from and after the date
such Liabilities are assumed by the Technologies Pension Plan. Parent shall
cause the Parent Pension Plan to file Form 5310-A with the IRS on or before
April 1, 2001. Parent shall take such action as is necessary to cause the
Technologies Pension Plan to become the holder of the portion of the Aetna
Annuity that provides benefits to the Transferred Individuals. Parent and
Technologies shall use their reasonable best efforts to effectuate a transfer of
the portion of the Prudential Annuity that provides benefits to the Transferred
Individuals. With respect to all other assets, Parent and Technologies agree to
use their best efforts to make transfers in kind to the extent practicable so as
to preserve the investment decisions as in effect on the date of transfer.
3.2 Pension Asset Transfers. The total amount transferred from the
trust funding the Parent Pension Plan to the trust funding the Technologies
Pension Plan pursuant to this Section 3.2 shall be an amount equal to (a) less
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(b), as adjusted by (c), where:
(a) equals the portion of the total assets of the Parent Pension Plan
which the Enrolled Actuary shall determine is allocable to the spun-off
Technologies Pension Plan for the benefit of the Transferred Individuals;
(b) equals the aggregate benefit payments made from the Parent
Pension Plan in respect of Transferred Individuals on the first day of each
month from May 1, 2001 through the date immediately preceding the date of the
asset transfer; and
(c) equals the amount of the Pension Interest from May 1, 2001
through the date immediately preceding the date of the asset transfer.
On May 1, 2001, or, as soon as practicable thereafter, Parent shall
cause the trustee of the trust funding the Parent Pension Plan to transfer to
the trustee of the trust funding the Technologies Pension Plan the Initial
Pension Transfer. Parent shall cause the trustee of the trust funding the Parent
Pension Plan to make a subsequent asset transfer or transfers to the trustee of
the trust funding the Technologies Pension Plan in an aggregate amount equal to
the difference between the amount described in (a) and the Initial Pension
Transfer, less the amount described in (b), as adjusted by (c) as soon as
practicable following the final calculation of the amount described in (a), but
in no event shall such transfer or transfers be later than May 1, 2002. All of
the calculations to be made under this Section 3.2 shall be made by the Enrolled
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Actuary using the actuarial assumptions set forth on Schedule F, and such
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calculations shall comply with the requirements of Section 414(l) of the Code as
a result of the Enrolled Actuary performing an allocation of total plan assets
amongst the various priority categories described in Section 4044 of ERISA.
3.3 Assumption of Parent Puerto Rico Pension Plan. Prior to the
Distribution Date, Technologies shall take, or cause to be taken, all such
action as is necessary to become the successor sponsor of, and assume all
Liabilities for, the Parent Puerto Rico Pension Plan and the Puerto Rican trust
funding the Parent Puerto Rico Pension Plan, effective Immediately after the
Distribution Date.
ARTICLE IV
DEFINED CONTRIBUTION PLANS
4.1 Defined Contribution Plans and Defined Contribution Plan for
Bargaining Unit Employees. Effective Immediately after the Distribution Date,
Parent shall cause the trustee of the master trust funding each of the Parent
Savings Plans to transfer to the trustee of the trust funding the corresponding
Technologies Savings Plan the amounts described in Section 4.2. As of the time
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of such transfer, the Technologies Defined Contribution Plan shall assume and be
solely responsible for all Liabilities to or relating to Transferred Individuals
under the Parent Defined Contribution Plan and the Parent Defined Contribution
Plan for Bargaining Unit Employees, respectively.
4.2 Defined Contribution Plan Asset Transfer. For each asset transfer
from the Parent Savings Plans to the Technologies Savings Plan pursuant to
Section 4.1, the amount transferred pursuant to this Section 4.2 shall equal the
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value of the balances of all accounts of the participants in the Parent Defined
Contribution Plan and the Parent Defined Contribution Plan
for Bargaining Unit Employees who are, as of the date of transfer, Transferred
Individuals. Effective Immediately after the Distribution Date, the Parent
Savings Plan shall transfer one-half (1/2) of the balance of the forfeitures
account to the Technologies Savings Plan. Transfers of Parent Common Stock and
Technologies Common Stock and participant loans shall be made in kind. With
respect to all other assets, Parent and Technologies agree to use their best
efforts to make transfers in kind to the extent practicable so as to preserve
the investments of the Transferred Individuals as in effect on the date of such
transfer.
4.3 Assumption of Parent Puerto Rico Savings Plan. Prior to
Distribution Date, Technologies shall take, or cause to be taken, all such
action as is necessary to become the successor sponsor of, and assume all
Liabilities for, the Parent Puerto Rico Savings Plan and the Puerto Rican trust
funding the Parent Puerto Rico Savings Plan, effective Immediately after the
Distribution Date.
ARTICLE V
HEALTH AND WELFARE PLANS
5.1 Assumption of Health and Welfare Plans' Liabilities.
(a) Effective Immediately after the Distribution Date, all
Liabilities to or relating to Transferred Individuals under the Parent Health
and Welfare Plans shall cease to be Liabilities of the Parent Health and Welfare
Plans and shall be assumed by the corresponding Technologies Health and Welfare
Plans, irrespective of when the claim underlying any such Liabilities was
incurred.
(b) Notwithstanding Section 5.1(a), all treatments which
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have been pre-certified for or are being provided to a Transferred Individual as
of the Close of the Distribution Date shall be provided without interruption
under the appropriate Parent Health and Welfare Plan until such treatment is
concluded or discontinued pursuant to applicable plan rules and limitations, but
Technologies shall continue to be responsible for all Liabilities relating to,
arising out of, or resulting from such on-going treatments as of the Close of
the Distribution Date.
(c) Prior to the Distribution Date, Technologies shall
take, or cause to be taken all such action as is necessary to become the
successor sponsor of, and assume all Liabilities for, the Parent Puerto Rico
Medical and Dental Plan, including, without limitation, any insurance contract
or other funding vehicle, effective Immediately after the Distribution Date.
5.2 Establishment of Mirror VEBA. To the extent that assets and
liabilities remain in the Parent VEBA as of the Distribution Date, effective
Immediately after the Distribution Date, Technologies shall establish, or cause
to be established, the Technologies VEBA, for the purpose of funding outstanding
long-term disability, supplemental life insurance and other applicable benefits
under the Technologies Health and Welfare Plans. Such trust shall meet the
requirements of Code (S)(S) 419, 419A, 501(a) and 501(c)(9).
5.3 VEBA Asset Transfers. To the extent that assets and liabilities
remain in the Parent VEBA as of the Distribution Date, this Section 5.3 shall
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govern the transfer of assets from the Parent VEBA to the Technologies VEBA. As
soon as practicable after the Close of the Distribution Date, the Enrolled
Actuary shall determine the aggregate present value, as of the Close of the
Distribution Date, of the future benefit obligations of each Parent Plan funded
by the Parent VEBA ("VEBA Plans"), with respect to Transferred Individuals who
are eligible to receive benefits under the applicable VEBA Plan as of the Close
of the Distribution Date. As soon as practicable after such determination is
made, there shall be transferred from the Parent VEBA to the Technologies VEBA
an amount of assets having a fair market value on the date of transfer equal to
the product of (a) the aggregate present value of the projected future benefit
obligations to Transferred Individuals, divided by (b) the aggregate of all such
present values of the projected future benefits to all participants under the
VEBA Plans, multiplied by (c) the fair market value of the assets of the Parent
VEBA on the date of transfer, adjusted to take into account the extent to which
Parent and/or Technologies has opted to forego reimbursement from the VEBA of
any benefit obligation that was paid by Parent or Technologies, as applicable,
on or after the Assumption Time and before the Close of the Distribution Date.
5.4 Investments of and Distributions from VEBAs. Before the Close of
the Distribution Date, Parent shall have sole authority to direct the trustee of
the Parent VEBA as to the investment of any trust assets, including, but not
limited to, the use of plan assets to purchase insurance contracts and the
distributions and/or transfers of trust assets to Parent, Technologies, any
Participating Company in the VEBA, any paying agent, any successor trustee or
any other Person.
5.5 Vendor Contracts.
(a) Third-Party ASO Contracts.
(i) Parent and Technologies shall use their
reasonable best efforts to amend each administrative services only contract with
a third-party administrator that relates to any of the Parent Health and Welfare
Plans (an "ASO Contract") in existence as of the date of this Agreement that is
applicable to Transferred Individuals to permit Technologies to participate in
the terms and conditions of such ASO Contract from Immediately after the
Distribution Date until December 31, 2002. Parent and Technologies shall use
their reasonable best efforts to cause all ASO Contracts entered into after the
date of this Agreement but before the Close of the Distribution Date to allow
Technologies to participate in the terms and conditions thereof effective
Immediately after the Distribution Date on the same basis as Parent.
(ii) The permissible ways in which Technologies'
participation may be effectuated include automatically making Technologies a
party to the ASO Contracts or obligating the third party to enter into a
separate ASO Contract with Technologies providing for the same terms and
conditions as are contained in the ASO Contracts to which Parent is a party.
Such terms and conditions shall include the financial and termination
provisions, performance standards, methodology, auditing policies, quality
measures and reporting requirements.
(iii) If by September 1, 2001, Parent and Technologies
determine that they will not be successful in negotiating contract language that
will permit compliance with
Section 5.5(a)(i) and Section 5.5(a)(ii), Technologies shall, effective
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Immediately after the Distribution Date, adopt a contingency plan.
(b) Group Insurance Policies.
(i) This Section 5.5(b) applies to group insurance policies
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not subject to allocation or transfer pursuant to the foregoing provisions of
this Article V ("Group Insurance Policies").
(ii) Parent and Technologies shall use their reasonable best
efforts to amend each Group Insurance Policy in existence as of the date of this
Agreement that is applicable to Transferred Individuals for the provision or
administration of benefits under the Parent Health and Welfare Plans to permit
Technologies to participate in the terms and conditions of such policy from
Immediately after the Distribution Date until December 31, 2002. Parent and
Technologies shall use their reasonable best efforts to cause all Group
Insurance Policies that are applicable to Transferred Individuals entered into
or renewed after the date of this Agreement but before the Close of the
Distribution Date to allow Technologies to participate in the terms and
conditions thereof effective Immediately after the Distribution Date on the same
basis as Parent.
(iii) Technologies' participation in the terms and conditions of
each such Group Insurance Policy shall be effectuated by obligating the
insurance company that issued such insurance policy to Parent to issue one or
more separate policies to Technologies. Such terms and conditions shall include,
without limitation, the financial and termination provisions, performance
standards and target claims.
(iv) If by September 1, 2001, Parent and Technologies determine
that they will not be successful in negotiating policy provisions that will
permit compliance with Section 5.5(b)(ii) and Section 5.5(b)(iii), Parent and
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Technologies shall use their reasonable best efforts to either continue to cover
Technologies under Parent's Group Insurance Policies or procure a separate
policy for Technologies until Technologies has procured such separate insurance
policy or made other arrangements for replacement coverage and Technologies
shall bear all costs incurred to continue such coverage.
(c) HMO Agreements.
(i) Parent and Technologies shall use their reasonable best
efforts to amend all agreements with HMOs that provide medical services under
the Parent Medical Plan ("HMO Agreements") in existence as of the date of this
Agreement that are applicable to Transferred Individuals to permit Technologies
to participate in the terms and conditions of such HMO Agreements, in each case,
from Immediately after the Distribution Date until December 31, 2002. Parent and
Technologies shall use their reasonable best efforts to cause all HMO Agreements
entered into after the date of this Agreement but before the Close of the
Distribution Date to allow Technologies to participate in the terms and
conditions of such HMO Agreements from Immediately after the Distribution Date
until December 31, 2002 on the same basis as Parent.
(ii) The permissible ways in which Technologies' participation
may be effectuated include, without limitation, automatically making
Technologies a party to the HMO Agreements or obligating the HMOs to enter into
agreements with Technologies that are identical to the HMO Agreements. Such
terms and conditions shall include, without limitation, the financial and
termination provisions of the HMO Agreements.
(iii) If by September 1, 2001, Parent and Technologies determine
that they will not be successful in negotiating arrangements that will permit
compliance with Section 5.5(c)(i) and Section 5.5(c)(ii), Parent and
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Technologies shall use their reasonable best efforts to arrange for the
continued provision under its HMO Agreements of medical services to Technologies
Medical Plan participants from Immediately after the Distribution Date through
December 31, 2002, and Technologies shall bear all costs incurred to continue
such services.
(d) Effect of Change in Rates. Parent and Technologies shall use
their reasonable best efforts to cause each of the insurance companies, HMOs and
third-party administrators providing services and benefits under the Parent
Health and Welfare Plans and the Technologies Health and Welfare Plans to
maintain the premium and/or administrative rates based on the aggregate number
of participants in both the Parent Health and Welfare Plans and the Technologies
Health and Welfare Plans through December 31, 2002. To the extent they are not
successful in such efforts, Parent and Technologies shall each bear the revised
premium or administrative rates attributable to the individuals covered by their
respective Health and Welfare Plans.
5.6 Parent Long-Term Disability. Effective May 1, 2001, Technologies shall
assume responsibility for administering claims incurred under the Parent LTD
Plan pursuant to the terms of the Parent LTD Plan through such ASOs or Group
Insurance Policies as may be in effect from time to time through December 31,
2002 and under the Technologies LTD Plan from and after the Distribution Date.
Technologies shall administer such claims in the same manner, and using the same
methods and procedures, as Parent used in administering such claims.
Technologies shall have sole discretionary authority to make any necessary
determinations with respect to such claims, including, without limitation,
entering into settlements with respect to such claims. Any determination made or
settlements entered into by Technologies or its agents with respect to such
claims shall be final and binding.
5.7 Post-Retirement Health and Life Insurance Benefits. Effective as of
May 1, 2001, Technologies shall assume responsibility for the administration of
post-retirement health and life insurance benefits under the applicable Parent
Health and Welfare Plans through December 31, 2002 and under the applicable
Technologies Health and Welfare Plans from and after the Distribution Date. As
soon as practicable after December 31, 2002, Technologies shall provide Parent
with a list of all individuals who are, as of December 31, 2002, receiving
retiree medical or dental coverage under the Parent Health and Welfare Plans
and/or post-retirement life insurance coverage under the Parent Group Life
Program, including, without limitation, all information necessary to calculate
the individuals' cost for such coverage; and a list of all individuals who are,
as of December 31, 2002, to the best knowledge of Technologies, eligible to
receive retiree medical or dental coverage under the Parent Health and Welfare
Plans and/or post-retirement life insurance coverage under the Parent Group Life
Program; and, for both lists, the type of retiree medical or dental coverage and
the level of life insurance coverage which they
are receiving or for which they are eligible, as applicable. Parent shall retain
all liability for premiums due to and any administration of the United Mine
Workers Association Combined Benefit Fund under the Coal Industry Retiree Health
Benefit Act of 1992.
5.8 COBRA. Effective as of May 1, 2001, Technologies shall assume
responsibility for administering compliance with the health care continuation
coverage requirements of COBRA and the Parent Health and Welfare Plans through
December 31, 2002 and the Technologies Health and Welfare Plans from and after
the Distribution Date, including, without limitation, filing all necessary
employee change notices with respect to their respective employees in accordance
with applicable COBRA policies and procedures.
5.9 Leave of Absence Programs.
(a) Effective May 1, 2001, Technologies shall assume
responsibility for administering compliance with the Parent Leave of Absence
Programs through December 31, 2002 and the Technologies Leave of Absence
Programs from and after the Distribution Date; provided, that, Parent and the
Parent Entities and Technologies and the Technologies Entities shall be
responsible for determining whether their respective employees are eligible for
leave under their respective Leave of Absence Programs in accordance with such
programs.
(b) Effective Immediately after the Distribution Date: (i)
Technologies shall adopt, and shall cause each Technologies Entity to adopt,
leave of absence programs which are substantially identical in all Material
Features to the Parent Leave of Absence Programs as in effect on the
Distribution Date; (ii) Technologies shall honor, and shall cause each
Technologies Entity to honor, all terms and conditions of leaves of absence
which have been granted to any Transferred Individual under a Parent Leave of
Absence Programs before the Close of the Distribution Date by Parent,
Technologies, or a Technologies Entity, including, without limitation, such
leaves that are to commence after the Distribution Date; (iii) each party shall
be solely responsible for administering leaves of absence and compliance with
FMLA with respect to their employees; and (iv) Technologies and each
Technologies Entity shall recognize all periods of service of Transferred
Individuals with Parent or a Parent Entity, as applicable, to the extent such
service is recognized by Parent for the purpose of eligibility for leave
entitlement under the Parent Leave of Absence Programs; provided, that no
duplication of benefits shall be required by the foregoing.
(c) As soon as administratively practicable after December 31,
2002, Technologies shall provide to Parent copies of all records pertaining to
all individuals then covered under the Parent Leave of Absence Programs to the
extent such records have not been provided previously to Parent or a Parent
Entity.
5.10 Parent Workers' Compensation Program.
(a) Administration of Claims.
(i) Through the Close of the Distribution Date or such
earlier date as may be agreed by Parent and Technologies, (A) Parent shall
continue to be responsible for the administration of all claims that (1) are, or
have been, incurred under the Parent WCP before the Close of the Distribution
Date by Transferred Individuals, Technologies Individuals and other
employees and former employees of Technologies and the Technologies Entities
through the Close of the Distribution Date ("Technologies WCP Claims") and (2)
-----------------------
have been historically administered by Parent or its insurance company, and (B)
Technologies shall continue to be responsible for the administration of all
Technologies WCP Claims that have been historically administered by
Technologies, if any.
(ii) Effective Immediately after the Distribution Date or such
earlier date as may be agreed by Parent and Technologies, (A) Technologies
shall, to the extent Legally Permissible (as defined below), be responsible for
the administration of all Technologies WCP Claims, whether those claims were
previously administered by Parent or Technologies, and (B) Parent shall be
responsible for the administration of all Technologies WCP Claims not
administered by Technologies pursuant to clause (A), whether previously
administered by Parent or Technologies and whether under the self-insured or
insured portion of the Parent WCP. Any determination made, or settlement entered
into, by either party or its insurance company with respect to Technologies WCP
Claims for which it is administratively responsible shall be final and binding
upon the other party.
(iii) Each party shall fully cooperate with the other with
respect to the administration and reporting of Technologies WCP Claims, the
payment of Technologies WCP Claims determined to be payable, and the transfer of
the administration of any Technologies WCP Claims to the other party as
determined under Section 5.10(a)(ii). Either party shall have the right to
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"outsource" (i.e., transfer the administration of claims to a third party
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administrator or cause claims to be paid through insurance) any and all
Technologies WCP Claims for which it is administratively responsible.
(iv) For purposes of this Section 5.10(a), "Legally
-------------- -------
Permissible" shall be determined on a state-by-state basis, and shall mean that
-----------
administration of Technologies WCP Claims by Technologies both (A) is
permissible under the applicable state's workers' compensation laws taking into
-----------
account all relevant facts, including, without limitation, that Technologies may
have a self-insurance certificate in that state and (B) would not have a
material adverse effect on Parent's self-insurance certificate within that
state. If it is determined that, in a particular state, it is Legally
Permissible for Technologies to administer Technologies WCP Claims, then
Technologies shall be responsible for the administration of all Technologies WCP
Claims incurred in that state, whether previously administered by Parent,
Technologies, or an insurance company. If it is determined that, in a particular
state, it is not Legally Permissible for Technologies to administer Technologies
WCP Claims, then Parent shall be responsible for the administration of all
Technologies WCP Claims incurred in that state, whether previously administered
by Parent, Technologies, or an insurance company.
(b) Self-Insurance Status.
(i) Parent shall amend its certificates of self-insurance with
respect to workers' compensation and any applicable group workers' compensation
insurance policies to include Technologies until the Close of the Distribution
Date, and Technologies shall fully cooperate with Parent in obtaining such
amendments. All costs incurred by Parent in amending such certificates or group
insurance policies, including, without limitation, filing fees, adjustments of
security and excess loss policies and amendment of safety programs, shall be
shared equally by Parent and Technologies. Parent shall use its reasonable best
efforts to obtain self-insurance status for workers' compensation for
Technologies effective Immediately after the Distribution Date in each
jurisdiction in which Technologies conducts business and in which Parent is
self-insured, if Parent and Technologies determine that such status is
beneficial to Technologies. Technologies hereby authorizes Parent to take all
actions necessary and appropriate on its behalf in order to obtain such
self-insurance status.
(ii) Parent shall also arrange a contingent insured or other
arrangement for payment of workers' compensation claims, into which Technologies
shall enter if and to the extent that Parent fails to obtain self-insured status
for Technologies as provided in Section 5.10(b)(i), unless Technologies obtains
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another such arrangement that is effective Immediately after the Distribution
Date, in which event Technologies shall reimburse Parent for any expenses
incurred by Parent in procuring such contingent arrangement.
(c) Insurance Policy.
(i) In the event the workers' compensation insurance policy
that Parent maintains under the Parent WCP expires before the Distribution Date,
Parent shall use its reasonable best efforts to renew such policy and to cause
the issuing insurance company to issue a separate policy to Technologies. If
Parent is not able to cause such insurance company to issue such separate
insurance policy, Technologies shall use its reasonable best efforts to procure
a separate policy from another insurance company or to obtain self-insurance
status, and Parent shall use its reasonable best efforts to continue to cover
Technologies under its renewed policy until the earlier of (A) the date on which
Technologies' application for such self-insurance status is approved or (B) the
date on which a separate insurance policy is procured. Technologies shall
compensate Parent for all costs incurred by Parent to continue such coverage.
Any claims incurred by Transferred Individuals after the Close of the
Distribution Date that will be covered under and during any such continuation of
coverage shall be treated as being incurred before the Close of the Distribution
Date for purposes of determining the party responsible for the administration of
benefits.
(ii) Parent shall use its best effort to maintain the premium
rates for all workers' compensation insurance policies for both Parent and
Technologies in effect for periods through the Close of the Distribution Date to
be based on the aggregate number of employees covered under the workers'
compensation insurance policies of both Parent and Technologies. Any premiums
due under the separate workers' compensation insurance issued to Technologies
shall be payable by Technologies.
5.11 Post-Distribution Transitional Arrangements.
(a) Continuance of Elections, Co-Payments and Maximum Benefits.
(i) Technologies shall cause the Technologies Health and
Welfare Plans to recognize and maintain all coverage and contribution elections
made by Transferred Individuals under the Parent Health and Welfare Plans and
apply such elections under the Technologies Health and Welfare Plans for the
remainder of the period or periods for which such elections are by their terms
applicable. The transfer or other movement of employment from
Parent to Technologies at any time before the Close of the Distribution Date
shall neither constitute nor be treated as a "status change" under the Parent
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Health and Welfare Plans or the Technologies Health and Welfare Plans.
(ii) Technologies shall cause the Technologies Health and
Welfare Plans to recognize and give credit for (A) all amounts applied to
deductibles, out-of-pocket maximums, and other applicable benefit coverage
limits with respect to which such expenses have been incurred by Transferred
Individuals under the Parent Health and Welfare Plans for the remainder of the
year in which the Distribution occurs, and (B) all benefits paid to Transferred
Individuals under the Parent Health and Welfare Plans for purposes of
determining when such persons have reached their lifetime maximum benefits under
the Technologies Health and Welfare Plans.
(iii) Technologies shall (A) provide coverage to Transferred
Individuals under the Technologies Group Life Program without the need to
undergo a physical examination or otherwise provide evidence of insurability,
and (B) recognize and maintain all irrevocable assignments and accelerated
benefit option elections made by Transferred Individuals under the Parent Group
Life Program. Notwithstanding anything herein to the contrary, Transferred
Individuals who elect a change in life insurance coverage may be subject to
rules of the insurer, including without limitation, physical examination or
other evidence of insurability.
(b) HCFA Data Match. Effective as of May 1, 2001, Technologies shall
assume administrative responsibility for HCFA data match reports and all
Liabilities relating to, arising out of or resulting from claims verified by
Parent or Technologies under the HCFA data match reports for Transferred
Individuals. Technologies shall not change any employee identification numbers
assigned by Parent without notifying Parent of the change and the new employee
identification number. As soon as administratively practicable after December
31, 2002, Technologies shall transfer all information to Parent to allow Parent
to verify HCFA data match reports for its employees and former employees.
(c) Other Post-Distribution Transitional Rules.
(i) Parent Flexible Benefits Plan. To the extent any
Transferred Individual contributed to an account under the Parent Flexible
Benefits Plan during the calendar year that includes the Distribution Date,
effective as of the Close of the Distribution Date, Parent shall transfer to the
Technologies Flexible Benefits Plan the account balances of Transferred
Individuals for such calendar year under the Parent Flexible Benefits Plan,
regardless of whether the account balance is positive or negative.
(ii) Health and Welfare Plans Subrogation Recovery. After the
Close of the Distribution Date, Technologies shall pay to Parent or the Parent
Health and Welfare Plan or the Technologies Health and Welfare Plan, as
appropriate, any amounts Technologies recovers from time to time through
subrogation or otherwise for claims incurred by or reimbursed to any participant
of Parent's Health and Welfare Plans or Technologies' Health and Welfare Plans.
After the Close of the Distribution Date, Parent shall pay to Technologies or
the Technologies Health and Welfare Plan or the Parent Health and Welfare Plan,
as appropriate,
any amounts Parent recovers from time to time through subrogation or otherwise
for claims incurred by or reimbursed to any participant of Parent's Health and
Welfare Plans or Technologies' Health and Welfare Plans.
(iii) Exchange of Historical Data. After the Close of the
Distribution Date both Parent and Technologies shall have access to claims data
configured on the Aetna database or archives, if applicable, and to eligibility,
disability, medical and demographic data configured on the Benefits and Employee
Services Organization database ("Benefits Database"), or archives, if
-----------------
applicable, for all historical periods up to and including, without limitation,
eligibility, incurred claims and Benefits Database data for purposes of
administering the Parent Medical Plans and the Technologies Medical Plans until
such time as Technologies transfers the portion of the Benefits Database
applicable to the Parent Medical Plans after December 31, 2002. Parent and
Technologies shall cooperate in the collection of claims, eligibility and data
during the period from May 1, 2001 through December 31, 2002, and share all such
data which shall be accessible through the Benefits and Employee Services
Organization.
ARTICLE VI
EXECUTIVE BENEFITS AND NON-EMPLOYEE DIRECTOR BENEFITS
6.1 Assumption of Obligations. Except as provided in this Agreement,
effective Immediately after the Distribution Date, Technologies shall assume and
be solely responsible for all Liabilities to or relating to Technologies
Individuals under all Parent Executive Benefit Plans. None of the transactions
contemplated by the Separation and Distribution Agreement or any of the
Ancillary Agreements, including, without limitation, this Agreement constitute a
change in control for purposes of any Plan.
6.2 Consents, Notifications and Assignments. Parent and Technologies
shall use their reasonable best efforts to obtain, or cause to be obtained, to
the extent necessary, the written consent of each Technologies Individual who is
a party to an Individual Agreement to the treatment of such Individual Agreement
in accordance with this Article VI, including, without limitation, the
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assumption by Technologies of sole responsibility for, and the release of Parent
from, all Liabilities thereunder; provided, that no failure to seek or to obtain
any such consent shall have any effect upon the obligations of Technologies with
respect to such Liabilities. Parent shall use its reasonable best efforts to
assign any annuity contracts owned by Parent for the purpose of making payment
of benefits to any Technologies Individual.
6.3 Parent Incentive Plans. Parent and Technologies shall use their
reasonable best efforts to take all actions necessary or appropriate so that
each outstanding Award granted under any Parent Incentive Plan held by any
Technologies Individual (or Transferred Individual, as applicable) shall be
replaced as set forth in this Section 6.3 with an Award under the Technologies
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Incentive Plan in a manner that is consistent with the adjustment provisions of
the Parent Incentive Plan, as interpreted by the Compensation and Organization
Committee of the Board of Directors of Parent. Each such replacement Award shall
otherwise have the same terms and conditions as were applicable to the
corresponding Parent Award as of the date immediately preceding the date of the
replacement Award under the Technologies Incentive Plan, as set forth in this
Section 6.3. Dividend equivalent rights on replacement Awards issued under the
-----------
Technologies Incentive Plan, if any, shall be payable with reference to
dividends on
Technologies Common Stock. Technologies shall not issue Awards with respect to
fractional shares.
(a) Stock Options. Technologies shall cause each Award consisting of
a Parent Option that is outstanding as of the Close of the Distribution Date
(or, in the case of a Technologies Administrative Employee, as of the Transfer
Date) and is held by a Technologies Individual to be replaced under the
Technologies Incentive Plan, effective Immediately after the Distribution Date
(or, in the case of a Technologies Administrative Employee, as of the Transfer
Date), with a Technologies Option. Such Technologies Option shall provide for
the purchase of a number of shares of Technologies Common Stock equal to the
number of shares of Parent Common Stock subject to such Parent Option as of the
Close of the Distribution Date (or, in the case of a Technologies Administrative
Employee, as of the Transfer Date) multiplied by the Distribution Date Ratio
(or, in the case of a Technologies Administrative Employee, the Transfer Date
Ratio), and then rounded down to the nearest whole share. Technologies shall pay
to the holder of each such replacement Technologies Option, upon exercise of all
or any portion of such replacement Technologies Option, cash in lieu of any
fractional share eliminated by such rounding down of shares equal to the product
of (i) the fraction represented by such fractional share; and (ii) (A) the
excess of the closing price of the Technologies Common Stock as listed on the
NYSE on the date of exercise over (B) the per-share exercise price of such
Parent Option as of the Close of the Distribution Date, divided by the
Distribution Date Ratio. The per-share exercise price of such Technologies
Option shall be equal to the per-share exercise price of the Parent Option as of
the Close of the Distribution Date (or, in the case of a Technologies
Administrative Employee, as of the Transfer Date); divided by the Distribution
Date Ratio (or, in the case of a Technologies Administrative Employee, the
Transfer Date Ratio).
(b) Restricted Stock. Technologies shall cause each Award that consists
of restricted shares of Parent Common Stock that is outstanding as of the close
of business on the day immediately preceding the IPO Date and is held by a
Technologies Individual or the Technologies Chairman of the Board of Directors
to be replaced under the Technologies Incentive Plan, effective immediately
after the IPO Date, with a new Award consisting of a number of restricted shares
of Technologies Common Stock equal to the number of restricted shares of Parent
Common Stock constituting such Award as of the close of business on the day
immediately preceding the IPO Date, multiplied by the IPO Ratio, and then
rounded down to the nearest whole share. Technologies shall cause each Award
that consists of restricted shares of Parent Common Stock that is outstanding as
of the Close of the Distribution Date and is held by a Technologies Individual
(or, in the case of a Technologies Administrative Employee, as of the close of
business on the day immediately preceding the Transfer Date) to be replaced
under the Technologies Incentive Plan, effective immediately after the
Distribution Date (or, in the case of a Technologies Administrative Employee, as
of the Transfer Date), with a new Award consisting of a number of restricted
shares of Technologies Common Stock equal to the number of restricted shares of
Parent Common Stock constituting such Award as of the Close of the Distribution
Date, (or, in the case of a Technologies Administrative Employee, as of the
close of business on the day immediately preceding the Transfer Date),
multiplied by the Distribution Date Ratio (or, in the case of a Technologies
Administrative Employee, the Transfer Date Ratio), and then rounded down to the
nearest whole share. Technologies shall pay to the holder of each such
replacement Award, at the time such replacement Award vests, cash in lieu of any
fractional share eliminated by such rounding down of shares equal to the product
of (i) the
fraction represented by such fractional share; and (ii) the closing price of the
Technologies Common Stock as listed on the NYSE on the date such replacement
Award vests.
6.4 Parent Award Deferrals. Immediately after the Distribution Date,
(or, in the case of a Technologies Administrative Employee, the Transfer Date),
the balance of any Technologies Individual in the Parent stock fund under the
FMC Corporation Non-Qualified Savings and Investment Plan as of the Close of the
Distribution Date shall be transferred to a Technologies stock fund under the
Technologies Non-Qualified Savings and Investment Plan, with a number of
Technologies shares equal to the number of Parent shares under the FMC
Corporation Non-Qualified Savings and Investment Plan as of the Close of the
Distribution Date (or, in the case of a Technologies Administrative Employee,
the Transfer Date), multiplied by the Distribution Date Ratio (or, in the case
of a Technologies Administrative Employee, the Transfer Date Ratio), then
rounded down to the nearest whole share.
6.5 Non-Employee Director Benefits.
(a) Technologies Non-Employee Directors. As of the
Distribution Date, Technologies shall assume and be solely responsible for all
Liabilities under the Parent Non-Employee Director Plan to or relating to Parent
Non-Employee Directors who become Technologies Non-Employee Directors and cease
to be Parent Non-Employee Directors. As of the Distribution Date, Technologies
shall assume and be solely responsible for a portion of the Liabilities under
the Parent Non-Employee Director Plan to or relating to Parent and Technologies
Non-Employee Directors, as determined in accordance with this Section 6.5.
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Parent and Technologies shall use their reasonable best efforts to take all
actions necessary or appropriate so that each applicable outstanding Award
granted under the Parent Non-Employee Director Plan (or, with respect to Xxxxxx
X. Xxxx, the Parent Incentive Plan) held by a Technologies Non-Employee Director
or a Parent and Technologies Non-Employee Director shall be replaced in a manner
that is consistent with the adjustment provisions of the Parent Non-Employee
Director Plan (or, the Parent Incentive Plan), each as interpreted by the
Compensation and Organization Committee of the Board of Directors of Parent.
Each such Technologies Award shall otherwise have the same terms and conditions
as were applicable to the corresponding Parent Award as of the Close of the
Distribution Date, except that dividend equivalent rights, if any, shall be
payable after the Distribution Date with reference to dividends on Technologies
Common Stock. Technologies shall not issue Awards with respect to fractional
shares.
(b) Deferred Stock Awards of Non-Employee Directors.
Effective Immediately after the Distribution Date, the balance (or, with respect
to a Parent and Technologies Non-Employee Director, up to one half (1/2) of the
balance, as elected by the Parent and Technologies Non-Employee Director) of a
Technologies Non-Employee Director (or a Parent and Technologies Non-Employee
Director) in the Parent share unit account under the Parent Non-Employee
Director Plan shall be transferred to a Technologies share unit account, under
the Technologies Incentive Plan, with a number of Technologies share units equal
to the total (or, with respect to a Parent and Technologies Non-Employee
Director, up to one half (1/2) of the total, as elected by the Parent and
Technologies Non-Employee Director) number of Parent share units under the
Parent Non-Employee Director Plan as of the Distribution Date multiplied by the
Distribution Date Ratio and then rounded down to the nearest whole unit.
Technologies shall pay to the holder of each such replacement share unit
account, at the time such share unit account is distributed to the holder, cash
in lieu of any fractional share eliminated by such rounding down of shares equal
to the product of (i) the fraction represented by such fractional share; and
(ii) the closing price of the Technologies Common Stock as listed on the NYSE on
the date such share unit account is distributed to the holder.
(c) Stock Option Awards of Non-Employee Directors. Effective
Immediately after the Distribution Date, Technologies shall cause all (or, with
respect to a Parent and Technologies Non-Employee Director, up to one half (1/2)
of all, as elected by the Parent and Technologies Non-Employee Director) Parent
Options under the Parent Non-Employee Director Plan (or, with respect to Xxxxxx
X. Xxxx, Parent Options under the Parent Incentive Plan) that are outstanding as
of the Close of the Distribution Date and are held by a Technologies
Non-Employee Director (or a Parent and Technologies Non-Employee Director) to be
replaced, with a Technologies Option. Such Technologies Option shall provide for
the purchase of a number of shares of Technologies Common Stock equal to the
total (or, with respect to a Parent and Technologies Non-Employee Director, up
to one half (1/2) of the total, as elected by the Parent and Technologies
Non-Employee Director) number of shares of Parent Common Stock subject to such
Parent Option as of the Close of the Distribution Date, multiplied by the
Distribution Date Ratio, and then rounded down to the nearest whole share.
Technologies shall pay to the holder of each such replacement Technologies
Option, upon exercise of all or any portion of such replacement Technologies
Option, cash in lieu of any fractional share eliminated by such rounding down of
shares equal to the product of (i) the fraction represented by such fractional
share; and (ii) (A) the excess of the closing price of the Technologies Common
Stock as listed on the NYSE on the date of exercise over (B) the per-share
exercise price of such Parent Option as of the Close of the Distribution Date,
divided by the Distribution Date Ratio. The per-share exercise of price of such
Technologies Option shall be equal to the per-share exercise price of the Parent
Option as of the Close of the Distribution Date divided by the Distribution Date
Ratio.
(d) Restricted Stock. Effective Immediately after the Distribution
Date, Technologies shall cause all (or, with respect to a Parent and
Technologies Non-Employee Director, up to one half (1/2) of all, as elected by
the Parent and Technologies Non-Employee Director) restricted shares of Parent
Common Stock that are outstanding as of the Close of the Distribution Date and
are held by a Technologies Non-Employee Director (or a Parent and Technologies
Non-Employee Director, other than Xxxxxx X. Xxxx) to be replaced under the
Technologies Non-Employee Director Plan, effective Immediately after the
Distribution Date, with a new Award consisting of a number of restricted shares
of Technologies Common Stock equal to the total (or, with respect to a Parent
and Technologies Non-Employee Director, up to one half (1/2) of the total, as
elected by the Parent and Technologies Non-Employee Director) number of
restricted shares of Parent Common Stock as of the Close of the Distribution
Date multiplied by the Distribution Date Ratio, and then rounded down to the
nearest whole share. Technologies shall pay to the holder of each such
replacement Award, at the time such replacement Award vests, cash in lieu of any
fractional share eliminated by such rounding down of shares equal to the product
of (i) the fraction represented by such fractional share; and (ii) the closing
price of the Technologies Common Stock as listed on the NYSE on the date such
replacement Award vests.
6.6 Rabbi Trusts.
(a) Establishment of Mirror Rabbi Trusts. Effective as of May 1,
2001, Technologies shall establish or cause to be established the Technologies
Rabbi Trusts as grantor trusts subject to Sections 671 et seq. of the Code,
which shall be substantially identical in all material features to the Parent
Rabbi Trusts funding the Parent Salaried Employees' Equivalent Retirement Plan
and the Parent Executive Severance Plan. Effective as of May 1, 2001,
Technologies shall assume the Moorco International, Inc. Executive Retirement
Trust. Effective no later than Immediately after the Distribution Date,
Technologies shall establish, or cause to be established, a Technologies Rabbi
Trust as a grantor trust subject to Sections 671 et seq. of the Code, which
shall be substantially identical in all Material Features to the Parent Rabbi
Trust funding the Parent Non-Qualified Savings and Investment Plan.
(b) Funding of Technologies Rabbi Trust. Effective as of May 1, 2001,
Technologies shall make a de minimus contribution to the Technologies Rabbi
Trusts established to fund the Technologies Salaried Employees' Equivalent
Retirement Plan and the Technologies Executive Severance Plan to the extent
necessary to maintain such Technologies Rabbi Trusts as springing rabbi trusts.
As of the earlier of the Close of the Distribution Date and the date when assets
are first transferred or contributed to the Technologies Rabbi Trust funding the
Technologies Non-Qualified Savings and Investment Plan (the "Rabbi Trust
-----------
Determination Date"), Technologies shall determine the amount of the Liabilities
------------------
under the Parent Non-Qualified Savings and Investment Plan that are payable from
the Parent Rabbi Trust funding the Parent Non-Qualified Savings and Investment
Plan. Subject to the completion of the asset transfer described in the next
sentence, and effective as of the Distribution Date: (i) the Parent Rabbi Trust
funding the Parent Non-Qualified Savings and Investment Plan shall transfer to
the corresponding Technologies Rabbi Trust, and such Technologies Rabbi Trust
shall assume and be responsible for all Liabilities of the corresponding Parent
Rabbi Trust with respect to benefits accrued by Transferred Individuals through
the Distribution Date and (ii) Parent shall have no responsibility for such
Liabilities. As soon as practicable after the Distribution Date, there shall be
transferred from the Parent Rabbi Trust funding the Parent Non-Qualified Savings
and Investment Plan to the corresponding Technologies Rabbi Trust a portion of
the assets thereof, representing an amount equal to the value of the balances of
all notational accounts of the participants in the Parent Non-Qualified Savings
and Investment Plan who are, as of the date of transfer, Transferred
Individuals. Balances in the Parent stock fund shall be transferred to the
Technologies stock fund in accordance with the terms of Section 6.4. Parent and
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Technologies agree to use their best efforts to make transfers in kind to the
extent practicable so as to preserve the investment decisions as in effect on
the date of transfer.
ARTICLE VII
OTHER BENEFITS
Notwithstanding anything herein to the contrary, Parent shall retain
all Liabilities for specified benefits as detailed below.
(a) Severance. Parent shall retain all Liabilities for any severance
benefit payable to (i) any employee of Parent or Technologies with respect to a
termination of service prior to May 1, 2001; and (ii) any employee who is not a
Technologies Individual.
(b) Executive Bonuses. Parent shall retain all Liabilities for any
bonus awarded prior to the IPO and payable to any executive of Parent or
Technologies for performance related to the IPO and/or Distribution.
(c) Retention Bonuses. Parent shall retain all Liabilities of any stay
bonus payable to any current or former employee of Parent and all Liabilities
for the cost of any stay bonuses payable to any current or former employee of
Technologies. Parent shall pay Technologies an amount equal to (i) any retention
bonus paid by Technologies in cash; plus, (ii) the aggregate number of
restricted shares of Technologies Common Stock issued in replacement of
restricted stock retention bonuses pursuant to Section 6.3(b) Restricted Stock,
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multiplied by the closing of price of the Technologies Common Stock on January
2, 2002. Parent shall make such payment to Technologies within ten (10) business
days after Technologies' request for payment.
ARTICLE VIII
GENERAL AND ADMINISTRATIVE
8.1 Payment of Administrative Costs and Expenses.
(a) Shared Costs. Parent and Technologies shall each be responsible
for their allocable share of such budgeted costs and any increases in such
budgeted costs through December 31, 2002 incurred in the administration of the
Parent Plans or the Technologies Plans; including, without limitation, (i) all
internal administrative costs of the Benefits and Employee Services
Organization; (ii) all external administrative costs for management of assets,
recordkeeping, communications, benefit delivery, insurance fees and commissions,
consultant, accounting, actuarial and legal expenses, printing, photocopying,
mailing and other expenses; and (iii) all COBRA administrative expenses. To the
extent such administrative expenses are not chargeable to the trusts established
to fund the Plans pursuant to the guidelines in effect at the time, effective
for periods on or after May 1, 2001, Parent shall pay to Technologies its
allocable share of such costs which shall be equal to the total cost less
Technologies' allocable share of such costs determined through the cycle billing
process based on the corporate divisions constituting part of the Technologies
Business, as set forth on Schedule E, consistent with past practice. With
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respect to any corporate staff costs or additional unanticipated expenses that
are not billed through the cycle billing process, Parent shall pay to
Technologies its allocable share of such costs which shall be equal to the total
amount of such costs, less Technologies' allocable share of such costs, based on
a head count of the individuals within the corporate divisions constituting part
of the Technologies Business, as set forth on Schedule E, or, in the event such
----------
costs are fixed costs that cannot be allocated on such basis, Parent's allocable
share shall be equal to one half (1/2) of such costs. Additional detail on
shared costs is provided in the Transition Services Agreement.
(b) Administrative Personnel. A schedule of the individuals employed in
certain Parent corporate business functions who have been designated to become
employees of Technologies or a Technologies Entity (the "Technologies
------------
Administrative Employees") has been agreed to by Parent and Technologies. The
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Technologies Administrative Employees shall remain on Parent's payroll at least
until the Distribution Date, and such individuals shall become Technologies
Individuals on the later of the Distribution Date or the Transfer Date.
8.2 Payment of Liabilities, Plan Expenses and Related Matters.
(a) Actuarial and Accounting Methodologies and Assumptions. For
purposes of this Agreement, unless specifically indicated otherwise: (i) all
actuarial methodologies and assumptions used for a particular Plan shall (except
to the extent otherwise determined by Parent and Technologies to be reasonable
or necessary) be substantially the same as those used in the actuarial valuation
of that Plan used to determine minimum funding requirements under ERISA (S) 302
and Code (S) 412 for 2001, or, if such Plan is not subject to such minimum
funding requirements, used to determine Parent's deductible contributions under
Code (S) 419A or, if such Plan is not subject to Code (S) 419A, the assumptions
used to prepare Parent's audited financial statements for 2000, as the case may
be; and (ii) the value of plan assets shall be the value established for
purposes of audited financial statements of the relevant plan or trust for the
period ending on the date as of which the valuation is to be made. Technologies
Liabilities relating to, arising out of or resulting from the status of
Technologies and the Technologies Entities as Participating Companies in Parent
Plans, as provided for in Section 2.2 and all accruals relating thereto shall be
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determined by Technologies using actuarial assumptions and methodologies,
including, without limitation, assumptions with respect to demographics, medical
trends and other relevant factors, determined by Technologies in a manner
consistent with Parent's practice as in effect on the Assumption Time and in
conformance with the generally accepted actuarial principles promulgated by the
American Academy of Actuaries, the Code, ERISA, and/or generally accepted
accounting principles, as applicable, in each case as interpreted by
Technologies consistent with Parent's past practice. Except as otherwise
contemplated by this Agreement or as required by law, all determinations as to
the amount or valuation of any assets of or relating to any Parent Plan, whether
or not such assets are being transferred to a Technologies Plan, shall be made
pursuant to procedures to be established by the parties before the Assumption
Time.
(b) Determination of Employee Status. In determining the number of
individuals in any particular group of employees described in this Agreement,
such as Transferred Individuals and Technologies Individuals, no individual
shall be counted twice, even if, for example, he or she is both a Technologies
Individual and a Transferred Individual. Determinations of what entity employs
or employed a particular individual shall be made by reference to the applicable
legal entity and/or other appropriate division code, to the extent possible, and
if not shall be made by reference to the last location of employment of the
individual, whether with Parent, a Parent Entity, Technologies or a Technologies
Entity.
(c) Contributions to Trusts. Technologies shall pay its share of any
contributions made to any trust maintained in connection with a Parent Plan with
respect to any period while Technologies or a Technologies Entity is a
Participating Company in that Parent Plan.
8.3 Sharing of Participant Information. Parent and Technologies shall
share, Parent shall cause each applicable Parent Entity to share, and
Technologies shall cause each applicable Technologies Entity to share, with each
other and their respective agents and vendors, without obtaining releases, all
participant information necessary for the efficient and accurate administration
of each of the Parent Plans and the Technologies Plans in accordance with the
terms of this Agreement. For periods beginning May 1, 2001, Parent and
Technologies shall coordinate access to information through the Benefits and
Employee Services Organization within Technologies. Parent and Technologies and
their respective authorized agents shall, subject to applicable laws on
confidentiality, be given reasonable and timely access to, and may make copies
of, all information relating to the subjects of this Agreement in the custody of
the other party, to the extent necessary for such administration. Until December
31, 2002, all participant information shall be provided in the manner and medium
as in effect of the Close of the Distribution Date, unless otherwise agreed to
by Parent and Technologies.
8.4 Reporting and Disclosure and Communications to Participants. While
Technologies is a Participating Company in the Parent Plans, Technologies shall
take, and shall cause each other applicable Technologies Entity to take, all
actions necessary or appropriate to facilitate the distribution of all Parent
Plan-related communications and materials to employees, participants and
beneficiaries, including, without limitation, summary plan descriptions,
summaries of material modification, summary annual reports, investment
information, prospectuses, notices and enrollment material for the Technologies
Plans. For periods beginning on or after May 1, 2001, Parent shall pay
Technologies the cost relating to the copies of all such documents provided to
Technologies, except to the extent such costs are charged pursuant to Section
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8.1. Parent and Technologies shall assist each other in complying with all
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reporting and disclosure requirements of ERISA, including, without limitation,
the preparation of Form 5500 annual reports for the Parent Plans and the
Technologies Plans, where applicable.
8.5 Non-Termination of Employment; No Third-Party Beneficiaries. No
provision of this Agreement or the Separation and Distribution Agreement shall
be construed to create any right, or accelerate entitlement, to employment or to
any compensation or benefit whatsoever on the part of any Technologies
Individual, Transferred Individual or other future, present or former employee
of Parent, a Parent Entity, Technologies, or a Technologies Entity under any
Parent Plan or Technologies Plan or otherwise. Without limiting the generality
of the foregoing: (a) neither the Distribution nor the termination of the
Participating Company status of Technologies or a Technologies Entity shall
cause any employee to be deemed to have incurred a termination of employment
which entitles such individual to the commencement of benefits under any of the
Parent Plans, any of the Technologies Plans, or any of the Individual
Agreements; and (b) except as expressly provided in this Agreement, nothing in
this Agreement shall preclude Technologies, at any time after the Close of the
Distribution Date, from amending, merging, modifying, terminating, eliminating,
reducing, or otherwise altering in any respect any Technologies Plan, any
benefit under any Plan or any trust, insurance policy or funding vehicle related
to any Technologies Plan.
8.6 Plan Audits.
(a) Audit Rights With Respect to Information Provided.
(i) Each of Parent and Technologies, and their duly
authorized representatives, shall have the right to conduct audits with respect
to all information provided to it by the other party. The party conducting the
audit (the "Auditing Party") shall have the sole discretion to determine the
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procedures and guidelines for conducting audits and the selection of audit
representatives under this Section 8.6(a). The Auditing Party shall have the
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right to make copies of any records at its expense, subject to the
confidentiality provisions set forth in the Separation and Distribution
Agreement, which are incorporated by reference herein. The party being audited
shall provide the Auditing Party's representatives with reasonable access during
normal business hours to its operations, computer systems and paper and
electronic files, and provide workspace to its representatives. After any audit
is completed, the party being audited shall have the right to review a draft of
the audit findings and to comment on those findings in writing within five
business days after receiving such draft.
(ii) The Auditing Party's audit rights under this Section
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8.6(a) shall include the right to audit, or participate in an audit facilitated
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by the party being audited, of any Subsidiaries and Affiliates of the party
being audited and of any benefit providers and third parties with whom the party
being audited has a relationship, or agents of such party, to the extent any
such persons are affected by or addressed in this Agreement (collectively, the
"Non-parties"). The party being audited shall, upon written request from the
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Auditing Party, provide an individual (at the Auditing Party's expense) to
supervise any audit of a Non-party. The Auditing Party shall be responsible for
supplying, at the Auditing Party's expense, additional personnel sufficient to
complete the audit in a reasonably timely manner. The responsibility of the
party being audited shall be limited to providing, at the Auditing Party's
expense, a single individual at each audited site for purposes of facilitating
the audit.
(b) Audits Regarding Vendor Contracts. From Immediately after
the Distribution Date through December 31, 2002, Parent and Technologies and
their duly authorized representatives shall have the right to conduct joint
audits with respect to any vendor contracts that relate to both the Parent
Health and Welfare Plans and the Technologies Health and Welfare Plans. The
scope of such audits shall encompass the review of all correspondence, account
records, claim forms, canceled drafts (unless retained by the bank), provider
bills, medical records submitted with claims, billing corrections, vendor's
internal corrections of previous errors and any other documents or instruments
relating to the services performed by the vendor under the applicable vendor
contracts. Parent and Technologies shall agree on the performance standards,
audit methodology, auditing policy and quality measures and reporting
requirements relating to the audits described in this Section 8.6 and the manner
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in which costs incurred in connection with such audits will be shared.
8.7 Beneficiary Designations. All beneficiary designations made by
Transferred Individuals for Parent Plans shall be transferred to and be in full
force and effect under the corresponding Technologies Plans until such
beneficiary designations are replaced or revoked by the Transferred Individual
who made the beneficiary designation.
8.8 Requests for IRS Rulings and DOL Opinions.
(a) Cooperation. Technologies shall cooperate fully with Parent
on any issue relating to the transactions contemplated by this Agreement for
which Parent elects to seek a determination letter or private letter ruling from
the IRS or an advisory opinion from the DOL. Parent shall cooperate fully with
Technologies with respect to any request for a determination letter or private
letter ruling from the IRS or advisory opinion from the DOL with respect to any
of the Technologies Plans relating to the transactions contemplated by this
Agreement.
(b) Applications. Parent and Technologies shall make such
applications to regulatory agencies, including the IRS and DOL, as may be
necessary to ensure that any transfers of assets from the Parent VEBA to the
Technologies VEBA will neither (i) result in any adverse tax, legal or fiduciary
consequences to Parent and Technologies, the Parent VEBA, the Technologies VEBA,
any participant therein or beneficiaries thereof, or any of Parent VEBA, any
successor welfare benefit funds established by or on behalf of Technologies, or
the trustees of such trusts, nor (ii) contravene any statute, regulation or
technical pronouncement issued by any regulatory agency. Technologies and Parent
agree to cooperate with each other to fulfill any filing and/or regulatory
reporting obligations with respect to such transfers.
(c) Life Insurance. To the extent the transfer or allocation of
all or a portion of any life insurance policies results in any adverse tax or
legal consequences, including, without limitation, (i) any finding that such
transfer results in the creation of a modified endowment contract within the
meaning of Section 7702A of the Code, a transfer for valuable consideration
within the meaning of Section 101(a) of the Code, or a lack of insurable
interest for either Parent or Technologies (or their respective trusts, if any),
or (ii) multiple claims for insurance proceeds, Parent and Technologies shall
take such steps as may be necessary to contest any such finding and, to the
extent of any final determination that such adverse tax or legal consequences
will result, Parent and Technologies shall make such further adjustments so as
to place both parties in the proportionate financial position that they each
would have been in relative to the other but for such adverse tax or legal
consequences.
8.9 Fiduciary Matters.
(a) Fiduciary Status. Parent and Technologies each acknowledges
that certain actions required to be taken pursuant to this Agreement may be
subject to fiduciary duties or standards of conduct under ERISA or other
applicable law, and no party shall be deemed to be in violation of this
Agreement if it fails to comply with any provisions hereof based upon its good
faith determination that to do so would violate such a fiduciary duty or
standard.
(b) Independent Fiduciary. Technologies shall retain the right
to retain a fiduciary independent of Parent to review and approve the types and
value of the assets to be transferred to the Technologies Plans from the Parent
Plans as described in Article III and Article IV of this Agreement to the extent
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that such Plans are subject to Part 4 of Title I of ERISA. The foregoing shall
not prevent Technologies from engaging any fiduciaries for any other purposes.
8.10 Payroll Taxes and Reporting of Compensation. Pursuant to the
alternative procedure prescribed by Section 5 of Revenue Procedure 84-17, (a)
Parent and Technologies
shall report on a "predecessor-successor" basis with respect to each
Technologies Individual; (b) Technologies shall assume Parent's entire
obligation to prepare, file and furnish Forms W-2 for the year ending December
31, 2001 and process garnishments and wage assignments with respect to each
Technologies Individual; (c) Parent shall be relieved of any obligation to
provide Forms W-2 and process garnishments and wage assignments to each
Technologies Individual for the year ending December 31, 2001; and (d) Parent
and Technologies will work in good faith to adopt similar procedures under
applicable state or local laws and will cooperate with each other in preparing
filings and forms relating to such procedures.
8.11 Collective Bargaining. To the extent any provision of this
Agreement is contrary to the provisions of any collective bargaining agreement
to which Parent or any Affiliate of Parent is a party, the terms of such
collective bargaining agreement shall prevail. Should any provisions of this
Agreement be deemed to relate to a topic determined by an appropriate authority
to be a mandatory subject of collective bargaining, Parent or Technologies may
be obligated to bargain with the union representing affected employees
concerning those subjects.
8.12 Consent of Third Parties. If any provision of this Agreement is
dependent on the consent of any third party (such as a vendor or a union) and
such consent is withheld, Parent and Technologies shall use their reasonable
best efforts to implement the applicable provisions of this Agreement to the
full extent practicable. If any provision of this Agreement cannot be
implemented due to the failure of such third party to consent, Parent and
Technologies shall negotiate in good faith to implement the provision in a
mutually satisfactory manner. The phrase "reasonable best efforts" as used
herein shall not be construed to require the incurrence of any non-routine or
unreasonable expense or liability or the waiver of any right.
ARTICLE IX
FOREIGN PLANS
(a) This Article IX (a) sets forth certain general principles
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relating to Foreign Plans; however, exceptions may be made to those general
principles as set forth in Article IX (b). Parent and Technologies shall take
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all actions necessary or appropriate so that, effective no later than the
Distribution Date, all Foreign Plans have been divided, assumed and/or new
Foreign Plans established, to the extent necessary, so that all benefits of
individuals other than Transferred Individuals under Foreign Plans, whether
accrued or payable before, on or after the Distribution Date, are provided by
Parent Foreign Plans, and all benefits of Transferred Individuals under Foreign
Plans, whether accrued or payable before, on or after the Distribution Date are
provided by Technologies Foreign Plans. If any Foreign Plan that is separated
into a Parent Foreign Plan and a Technologies Foreign Plan in connection with or
in anticipation of the Distribution is funded through a trust, insurance
contract or other funding vehicle, then such funding vehicle shall be divided
between such Parent Foreign Plan and Technologies Foreign Plan in proportion to
the relative projected benefit obligations of such two Plans, determined
immediately after such separation takes place in accordance with local law and
custom. From and after the Distribution Date: (i) Parent shall assume or retain,
as applicable, and shall be solely responsible for, all Liabilities arising out
of or relating to the Parent Foreign Plans; and (ii) Technologies shall assume
or retain, as applicable, and shall be solely responsible for, all Liabilities
arising out of or relating to the Technologies Foreign Plans.
(b) Parent and Technologies recognize that it is possible that, in
certain cases, applicable law may prohibit the implementation of the general
principles set forth in Article IX (a), or that there may be special
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circumstances making such implementation inadvisable or impractical. In all such
cases, such general principles shall not be implemented and Parent and
Technologies shall use their best efforts to develop and implement an
alternative approach, and shall enter into such additional agreements as may be
necessary or appropriate in connection therewith. Schedule G hereto also sets
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forth certain exceptions to the general principles set forth in Article IX (a)
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as of the date of this Agreement.
ARTICLE X
MISCELLANEOUS
10.1 Effect If Distribution Does Not Occur. If the Distribution does
not occur, then all actions and events that are, under this Agreement, to be
taken or occur effective as of the Close of the Distribution Date, Immediately
after the Distribution Date, or otherwise in connection with the Distribution,
shall not be taken or occur except to the extent specifically agreed by
Technologies and Parent.
10.2 Relationship of Parties. Nothing in this Agreement shall be
deemed or construed by the parties or any third party as creating the
relationship of principal and agent, partnership or joint venture between the
parties, it being understood and agreed that no provision contained herein, and
no act of the parties, shall be deemed to create any relationship between the
parties other than the relationship set forth herein.
10.3 Affiliates. Each of Parent and Technologies shall cause to be
performed, and hereby guarantees the performance of, all actions, agreements and
obligations set forth in this Agreement to be performed by a Parent Entity or a
Technologies Entity, respectively.
10.4 Incorporation of Separation and Distribution Agreement
Provisions. The following provisions of the Separation and Distribution
Agreement are hereby incorporated herein by reference, and unless otherwise
expressly specified herein, such provisions shall apply as if fully set forth
herein (references in this Section 10.4 to an "Article" or "Section" shall mean
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Articles or Sections of the Separation and Distribution Agreement, and, except
as expressly set forth below, references in the material incorporated herein by
reference shall be references to the Separation and Distribution Agreement):
Article V Survival and Indemnification; Article VII Access to Information;
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Article XII Negotiation; Article VI Additional Covenants; Article X Termination;
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and Article XI Miscellaneous, other than Section 11.3 Governing Law.
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10.5 Governing Law. To the extent not preempted by applicable Federal
law, this Agreement shall be governed by, construed in accordance with the laws
of the State of Delaware (other than the laws regarding choice of laws and
conflicts of laws that would apply the substantive laws of any other
jurisdiction) as to all matters, including, without limitation, matters of
validity, construction, effect, performance and remedies.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
FMC CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
FMC TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
