Exhibit 10.9.b
TRUST AGREEMENT
Between
FMC TECHNOLOGIES, INC.
And
FIDELITY MANAGEMENT TRUST COMPANY
FMC TECHNOLOGIES, INC. NONQUALIFIED SAVINGS AND INVESTMENT PLAN TRUST
Dated as of September 28, 2001
TABLE OF CONTENTS
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Section Page
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1 Definitions ............................................................................... 2
(a) Administrator
(b) Affiliate
(c) Agreement
(d) Available Liquidity
(e) Business Day
(f) Change in Control
(g) Closing Price
(h) Code
(i) ERISA
(j) Fidelity
(k) Fidelity Mutual Fund
(l) FIFO
(m) FIIOC
(n) FMC Stock
(o) FMC Stock Fund
(p) FMC Technologies Stock
(q) FMC Technologies Stock Fund
(r) IRS
(s) Mutual Fund
(t) NFSLLC
(u) Non-Fidelity Mutual Fund
(v) NYSE
(w) Participant
(x) Participant Recordkeeping Reconciliation Period
(y) Plan
(z) Potential Change in Control
(aa) Reporting Date
(bb) Specified Hierarchy
(cc) Spin-Off Date
(dd) Sponsor
(ee) Trust
(ff) Trustee
(gg) VRS
2 Trust ..................................................................................... 4
(a) Establishment
(b) Revocability
(c) Grantor Trust
(d) Trust Assets
(e) Contributions
(f) Administrator
(g) Non-Assignment
3 Payments to Sponsor ...................................................................... 5
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TABLE OF CONTENTS
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(Continued)
Section Page
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4 Disbursement ............................................................................. 5
(a) Directions from Administrator
(b) Payments with No Stated Procedure
(c) Limitations
(d) Participants Subject to Federal Income Taxation
5 Investment of Trust ...................................................................... 7
(a) Selection of Investment Options
(b) Available Investment Options
(c) Investment Directions
(d) Mutual Funds
(e) Stock
(f) Trustee Powers
6 Recordkeeping and Administrative Services to Be Performed ................................ 21
(a) General
(b) Accounts
(c) Inspection and Audit
(d) Effect of Plan Amendment
(e) Returns, Reports and Information
7 Compensation and Expenses ................................................................ 22
8 Directions and Indemnification ........................................................... 23
(a) Identity of Administrator
(b) Directions from Administrator
(c) Directions from Participants
(d) Indemnification
(e) Survival
9 Resignation or Removal of Trustee ........................................................ 24
(a) Resignation
(b) Removal
10 Successor Trustee ........................................................................ 24
(a) Appointment
(b) Acceptance
(c) Corporate Action
11 Termination .............................................................................. 25
12 Resignation, Removal, and Termination Notices ............................................ 25
13 Duration ................................................................................. 25
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TABLE OF CONTENTS
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(Continued)
Section Page
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14 Insolvency of Sponsor .................................................................... 25
15 Change in Control ........................................................................ 26
16 Amendment or Termination ................................................................. 28
(a) Amendment
(b) Termination
17 Electronic Services ...................................................................... 28
18 General .................................................................................. 30
(a) Performance by Trustee, its Agent or Affiliates
(b) Entire Agreement
(c) Waiver
(d) Successors and Assigns
(e) Partial Invalidity
(f) Section Headings
19 Governing Law ............................................................................ 30
(a) Massachusetts Controls
(b) Trust Agreement Controls
Schedules
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A. Recordkeeping and Administrative Services ............................................. 32
B. Fees .................................................................................. 34
C. Authorization Signers (Administrator) ................................................. 35
D. Operational Guidelines for Non-Fidelity Mutual Funds .................................. 36
E. Exchange Guidelines ................................................................... 38
F. Specified Hierarchy - Available Liquidity Procedures For FMC Stock Fund ............... 40
G. Specified Hierarchy - Available Liquidity Procedures For FMC Technologies Stock Fund .. 41
H. Investment Direction .................................................................. 42
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TRUST AGREEMENT, dated as of the twenty-eighth day of September, 2001,
between FMC TECHNOLOGIES, INC., a Delaware corporation, having an office at 000
X. Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 (the "Sponsor"), and FIDELITY
MANAGEMENT TRUST COMPANY, a Massachusetts trust company, having an office at 00
Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Trustee").
WITNESSETH:
WHEREAS, the Sponsor is the sponsor of the FMC Technologies, Inc.
Nonqualified Savings and Investment Plan (the "Plan"); and
WHEREAS, the Sponsor wishes to establish an irrevocable trust and to
contribute to the trust assets that shall be held therein, subject to the claims
of Sponsor's creditors in the event of Sponsor's Insolvency, as herein defined,
until paid to Plan Participants and their beneficiaries in such manner and at
such times as specified in the Plan; and
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plan
as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974
("ERISA"); and
WHEREAS, it is the intention of the Sponsor to make contributions to the
trust to provide itself with a source of funds to assist it in the meeting of
its liabilities under the Plan; and
WHEREAS, the Trustee is willing to hold and invest the aforesaid plan
assets in trust among several investment options selected by the Sponsor; and
WHEREAS, the Sponsor wishes to have the Trustee perform certain
ministerial recordkeeping and administrative functions under the Plan; and
WHEREAS, the Trustee is willing to perform recordkeeping and
administrative services for the Plan if the services are purely ministerial in
nature and are provided within a framework of plan provisions, guidelines and
interpretations conveyed in writing to the Trustee by the Administrator.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements set forth below, the Sponsor and the Trustee
agree as follows:
Section 1. Definitions. The following terms as used in this Trust Agreement
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have the meaning indicated unless the context clearly requires otherwise:
(a) "Administrator" shall mean, with respect to the Plan, any person or
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entity designated in accordance with Section 2(f) of this Agreement.
(b) "Affiliate" shall mean any subsidiary or affiliate of the Sponsor.
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(c) "Agreement" shall mean this Trust Agreement, as the same may be amended
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and in effect from time to time.
(d) "Available Liquidity" shall mean the amount of short-term investments
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held in the FMC Stock Fund or the FMC Technologies Stock Fund decreased
by any outgoing cash for expenses then due, principal, and obligations
for pending stock purchases, and increased by incoming cash (such as
contributions, exchanges in) and to the extent credit is available and
allocable to the FMC Stock Fund or the FMC Technologies Stock Fund,
receivables for pending stock sales.
(e) "Business Day" shall mean each day the New York Stock Exchange is open
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for business.
(f) "Change in Control" shall mean the occurrence of any of the events
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described in section 15 of this Agreement.
(g) "Closing Price" shall mean either (1) the closing price of the stock on
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the principal national securities exchange on which the FMC Stock Fund or
the FMC Technologies Stock Fund is traded or, in the case of stocks
traded over the counter, the last sale price of the day; or, if (1) is
unavailable, (2) the latest available price as reported by the principal
national securities exchange on which the FMC Stock Fund or the FMC
Technologies Stock Fund is traded or, for an over the counter stock, the
last bid price prior to the close of the New York Stock Exchange
(generally 4:00 p.m. Eastern time).
(h) "Code" shall mean the Internal Revenue Code of 1986, as it has been or
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may be amended from time to time.
(i) "ERISA" shall mean the Employee Retirement Income Security Act of 1974,
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as it has been or may be amended from time to time.
(j) "Fidelity" shall mean the Trustee and/or its affiliates.
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(k) "Fidelity Mutual Fund" shall mean any investment company advised by
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Fidelity Management & Research Company or any of its affiliates.
(l) "FIFO" shall mean first in first out.
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(m) "FIIOC" shall mean Fidelity Investments Institutional Operations Company,
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Inc.
(n) "FMC Stock" shall mean the common stock of FMC Corporation, a publicly
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traded equity security.
(o) "FMC Stock Fund" shall mean the investment option consisting primarily of
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shares of FMC Corporation Stock (defined herein as "FMC Stock") and cash
or short-term liquid investments.
(p) "FMC Technologies Stock " shall mean the common stock of FMC
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Technologies, Inc., a publicly traded equity security.
(q) "FMC Technologies Stock Fund" shall mean the investment option consisting
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primarily of shares of FMC Technologies, Inc. Stock (defined herein as
"FMC Technologies Stock") and cash or short-
2
term liquid investments.
(r) "IRS" shall mean the Internal Revenue Service.
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(s) "Mutual Fund" shall refer both to Fidelity Mutual Funds and Non-Fidelity
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Mutual Funds.
(t) "NFSLLC" shall mean National Financial Services LLC., an affiliate of the
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Trustee.
(u) "Non-Fidelity Mutual Fund" shall mean certain investment companies not
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advised by Fidelity Management & Research Company or any of its
affiliates.
(v) "NYSE" shall mean the New York Stock Exchange.
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(w) "Participant" shall mean, with respect to the Plan, any employee (or
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former employee) with an account under the Plan, which has not yet been
fully distributed and/or forfeited, and shall include the designated
beneficiary(ies) with respect to the account of any deceased employee (or
deceased former employee) until such account has been fully distributed
and/or forfeited.
(x) "Participant Recordkeeping Reconciliation Period" shall mean the period
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beginning on the date of the initial transfer of assets to the Trust and
ending on the date of the completion of the reconciliation of Participant
records.
(y) "Plan" shall mean the FMC Technologies, Inc. Nonqualified Savings and
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Investment Plan.
(z) "Potential Change in Control" shall mean the public announcement of the
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intention to enter into or entering into an agreement which would result
in a Change in Control.
(aa) "Reporting Date" shall mean the last day of each calendar quarter, the
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date as of which the Trustee resigns or is removed pursuant to this
agreement and the date as of which this Agreement terminates pursuant to
Section 11 hereof.
(bb) "Specified Hierarchy" shall mean the processing order set forth in
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Schedules "F" and "G" that give precedence to distributions and
withdrawals, and otherwise on a FIFO basis.
(cc) "Spin-Off Date" shall mean the date upon which FMC Corporation
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distributes its interest in the Sponsor.
(dd) "Sponsor" shall mean FMC Technologies, Inc., a Delaware corporation, or
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any successor to all or substantially all of its businesses which, by
agreement, operation of law or otherwise, assumes the responsibility of
the Sponsor under this Agreement.
(ee) "Trust" shall mean the FMC Technologies, Inc. Nonqualified Savings and
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Investment Plan Trust, being the trust established by the Sponsor and the
Trustee pursuant to the provisions of this Agreement.
(ff) "Trustee" shall mean Fidelity Management Trust Company, a Massachusetts
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trust company and any successor to all or substantially all of its trust
business as described in Section 10. The term Trustee shall also include
any successor trustee appointed pursuant to Section 10 to the extent such
successor agrees to serve as Trustee under this Agreement.
(gg) "VRS" shall mean voice response system.
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Section 2. Trust.
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(a) Establishment. The Sponsor hereby establishes the Trust with the
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Trustee. The Trust shall consist of an initial contribution of money, FMC
Technologies Stock, or other property acceptable to the Trustee in its sole
discretion, made by the Sponsor or transferred from a previous trustee under the
Plan, such additional sums of money as shall from time to time be delivered to
the Trustee under the Plan, all investments made therewith and proceeds thereof,
and all earnings and profits thereon, less the payments that are made by the
Trustee as provided herein, without distinction between principal and income.
The Trustee hereby accepts the Trust on the terms and conditions set forth in
this Agreement. In accepting this Trust, the Trustee shall be accountable for
the assets received by it, subject to the terms and conditions of this
Agreement.
(b) Revocability. The Trust hereby established is revocable by the
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Sponsor. The Trust shall become irrevocable upon a Change in Control or upon a
Potential Change in Control, unless a Change in Control does not occur during
the twelve (12) month period following the Potential Change in Control. If a
Change in Control does not occur during such twelve (12) month period, the Trust
shall again be revocable by the Sponsor.
(c) Grantor Trust. The Trust is intended to be a grantor trust, of
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which the Sponsor is the grantor, within the meaning of subpart E, part I,
subchapter J, chapter 1, subtitle A of the Code, as amended, and shall be
construed accordingly.
(d) Trust Assets. The principal of the Trust, and any earnings thereon
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shall be held separate and apart from other funds of the Sponsor and shall be
used exclusively for the uses and purposes of Participants and general creditors
as herein set forth. Participants and their beneficiaries shall have no
preferred claim on, or any beneficial ownership interest in, any assets of the
Trust. Any rights created under the Plan and this Trust Agreement shall be mere
unsecured contractual rights of Participants and their beneficiaries against the
Sponsor. Any assets held by the Trust will be subject to the claims of the
Sponsor's general creditors under federal and state law in the event of the
Sponsor's Insolvency, as defined in Section 14(a), and subject to an Affiliate's
creditors in the event of the subsidiary's Insolvency, as defined in Section
14(a), to the extent Trust assets were contributed to the Trust on behalf of the
Affiliate's employees.
(e) Contributions. It is the intent of the parties that this Trust
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remain fully funded at all times. However, in the event that the Sponsor ceases
to make contributions at any point in time and/or the Sponsor has knowledge that
a Change of Control is imminent, the Sponsor shall, as soon as practicable after
said contribution is due and/or as soon as practicable after the Sponsor has
knowledge that a Change in Control
4
is imminent, but no later than the day immediately preceding the contribution
due date or the Change in Control, identify and contribute to the Trust the sum
of the following (collectively the "Full Funding Amount"):
(i) With respect to the Plan, the amount by which the present
value of all benefits required under the Plan to be deposited in trust after
said contribution is due or upon a Change in Control exceeds the value of the
Trust assets.
(ii) A reasonable estimate provided by the Trustee of its fees due
over the remaining duration of the Trust.
(iii) A reasonable estimate of the taxes expected to be due over
the remaining duration of the Trust.
(f) Administrator. Until a Potential Change in Control or a Change in
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Control, "Administrator" means the Compensation and Organization Committee of
the Board of Directors of Sponsor ("Board"). Upon a Potential Change in Control
or a Change in Control, any changes in the membership of the Administrator,
including appointment of new members to replace resigning members, will be made
by the Administrator itself. The Administrator shall have the duty to inform the
Trustee, in writing, of a Potential Change in Control or a Change in Control,
and the Trustee shall have no responsibility to comply with the Potential Change
in Control or Change in Control provisions of this Agreement until the Trustee
has received such written notice.
(g) Non-Assignment. Benefit payments to Participants and their
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beneficiaries funded under this Trust may not be anticipated, assigned (either
at law or in equity), alienated, pledged, encumbered, or subjected to
attachment, garnishment, levy, execution, or other legal or equitable process.
Section 3. Payments to Sponsor. Except as provided under Section 14, after the
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Trust has become irrevocable, the Sponsor shall have no right to retain or
divert to others any of the Trust assets before all payment of benefits have
been made to the Participants and their beneficiaries pursuant to the terms of
the Plan.
Section 4. Disbursements.
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(a) Directions from Administrator. The Trustee shall disburse monies to
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Participants and their beneficiaries for benefit payments in the amounts that
the Administrator directs from time to time in writing. The Trustee shall not
disburse monies to any non-employees or other persons, including but not limited
to, any directors or non-resident alien participants, who are required to
receive any form other than
5
Internal Revenue Service ("IRS") Form W-2 (Wage and Tax Statement), nor
shall the Trustee be responsible for ascertaining whether the Administrator's
direction complies with the terms of the Plan or applicable law. With regard to
said Participants, the Trustee shall disburse monies to the Administrator in
accordance with a Payment Schedule ("Payment Schedule") that indicates the
amounts payable in respect of each Participant and such other details deemed
appropriate by both the Administrator and the Trustee, and the Administrator
shall retain full responsibility for making disbursements to any non-employees
or other persons, including but not limited to, any directors or non-resident
alien participants, who are required to receive any form other than IRS Form
W-2. The Trustee shall be responsible for Federal and State income tax reporting
or withholding with respect to Plan benefits paid from the Trust. The Trustee
shall not be responsible for FICA (Social Security and Medicare), any Federal or
State unemployment or local tax with respect to Plan distributions.
(b) Payments with No Stated Procedure. If a payment required under the
---------------------------------
terms of the Plan has not been made to a Participant, and the underlying Plan
has no stated procedure for the Participant to collect the benefits, then the
Participant may notify the Trustee in writing of the amount (or a reasonable
estimate of the amount) owed to the Participant pursuant to the Plan, and the
date such amount was due and payable. The Trustee shall notify the Administrator
within fifteen (15) calendar days of the receipt of such a payment request. If
the Trustee does not receive from the Sponsor a notarized statement as to the
proper amount due and payable to the Participant within thirty (30) calendar
days of the date the Trustee notified the Administrator in writing of the
payment request, then the Trustee shall make the payment requested by the
Participant from the assets of the Trust, and may conclusively rely on such
payment or payments as being the appropriate amount. The Trustee also shall
notify the Administrator of such payment and to the extent of such payment, the
Sponsor's obligation to the Participant for benefits under the Plan shall be
deemed satisfied. If the Sponsor's notarized statement as to the proper amount
due and payable to the Participant differs from the amount set forth in the
Participant payment request, then the Trustee shall retain any disputed amount
in Trust pending resolution of the dispute by the Sponsor and the Participant
pursuant to the Plan. Subject to the sufficiency of the assets of the Trust,
payment shall be made to a Participant from the Trust in accordance with the
terms of this Section 4(b) and the Plan until the earlier of:
(i) The date all benefit commitments due to the Participant or
the Participant's beneficiaries under the Plan, as requested by the Participant
in his or her notification to the Trustee, have been satisfied; or
(ii) The Administrator provides a notarized statement that shows
the proper amount due to the Participant. If such a notarized statement is so
provided, appropriate adjustment, if any, shall be made in the remaining amount
paid to the Participant.
6
(c) Limitations. The Trustee shall not be required to make any
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disbursement in excess of the net realizable value of the assets of the Trust at
the time of the disbursement. If the assets are not sufficient to make such
distributions, the Sponsor shall be obligated to make the balance of each
payment when due. The Trustee shall not be required to make any disbursement in
cash unless the Administrator has provided a written direction as to the assets
to be converted to cash for the purpose of making the disbursement.
(d) Participants Subject to Federal Income Taxation. Except as
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otherwise provided herein, in the event of any final determination by the IRS or
a court of competent jurisdiction which determination is not appeallable or the
time for appeal or protest of which has expired, or the receipt by the Trustee
of a substantially unqualified opinion of tax counsel selected by the Trustee,
which determination determines, or which opinion opines, that any Participant is
subject to Federal income taxation on amounts held in trust hereunder prior to
the distribution to the Participant of such amounts, the Trustee shall, upon
receipt by the Trustee of such opinion or notice of such determination, pay to
such Participant the portion of the Trust corpus includible in such
Participant's Federal gross income and, to the extent of such payment, the
Sponsor's obligation to the Participant for benefits under the Plan shall be
deemed satisfied.
Section 5. Investment of Trust.
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(a) Selection of Investment Options. The Trustee shall have no
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responsibility for the selection of investment options under the Trust and shall
not render investment advice to any person in connection with the selection of
such options.
(b) Available Investment Options. The Sponsor shall direct the Trustee
----------------------------
as to what investment options the Trust shall be invested in (i) during the
period beginning on the initial transfer of assets to the Trust and ending on
the completion of the Participant Recordkeeping Reconciliation Period, and (ii)
following the Participant Recordkeeping Reconciliation Period, subject to the
following limitations. The Sponsor may determine to offer as investment options
only: (1) FMC Stock, (2) FMC Technologies Stock and (3) Fidelity Mutual Funds
and Non-Fidelity Mutual Funds identified collectively as certain Mutual Funds as
listed on Schedule "A" attached hereto; provided, however, that the Trustee
shall not be considered a fiduciary with investment discretion. The Sponsor may
add or remove investment options with the consent of the Trustee and upon mutual
amendment of this Trust Agreement and the Schedules thereto to reflect such
additions.
Sponsor shall have the right at any time, and from time to time in
its sole discretion, to substitute assets of equal fair market value for any
asset held by the Trust. This right is exercisable by Sponsor in a non-fiduciary
capacity without the approval or consent of any person in a fiduciary capacity.
7
(c) Investment Directions. In order to provide for an accumulation of
---------------------
assets comparable to the contractual liabilities accruing under the Plan, the
Sponsor may direct the Trustee in writing to invest the assets held in the Trust
to correspond to the hypothetical investments made for Participants under the
Plan. Such directions may be made by Plan Participants by use of a Participant
service representative, the VRS, the internet or such other electronic means as
may be agreed upon from time to time by the Sponsor and the Trustee, maintained
for such purposes by the Trustee or its agents, in accordance with Schedule "E."
In the event that the Trustee fails to receive a proper direction from the
Sponsor or from Participants, the assets in question shall be invested in
Fidelity Retirement Government Money Market Portfolio until the Trustee receives
a proper direction.
The Sponsor's designation of available investment options, the
maintenance of accounts for each Plan Participant and the crediting of
investments to such accounts, the giving of investment directions by
Participants, and the exercise by Participants of any other powers relating to
investments are solely for the purpose of providing a mechanism for measuring
the obligation of the Sponsor to any particular Participant under the applicable
Plan. No Participant or beneficiary will have any preferential claim to or
beneficial ownership interest in any asset or investment, and the rights of any
Participant and his or her beneficiaries under the applicable Plan and this
Agreement are solely those of an unsecured general creditor of the Sponsor with
respect to the benefits of the Participant under the Plan.
(d) Mutual Funds. The Sponsor hereby acknowledges that it has received
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from the Trustee a copy of the prospectus for each Mutual Fund selected by the
Sponsor as a Plan investment option. Trust investments in Mutual Funds shall be
subject to the following limitations:
(i) Execution of Purchases and Sales. Purchases and sales of Mutual
--------------------------------
Funds (other than for exchanges) shall be made on the date on which the Trustee
receives from the Sponsor in good order all information and documentation
necessary to accurately effect such purchases and sales (or in the case of a
purchase, the subsequent date on which the Trustee has received a wire transfer
of funds necessary to make such purchase). Transactions involving Non-Fidelity
Mutual Funds shall be executed in accordance with the operating procedures set
forth in Schedule "D" attached hereto. Exchanges of Fidelity Mutual Funds shall
be made on the same business day that the Trustee receives a proper direction if
received before market close (generally 4:00 p.m. eastern time); if the
direction is received after market close (generally 4:00 p.m. eastern time), the
exchange shall be made the following Business Day.
(ii) Voting. At the time of mailing of notice of each annual or
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special stockholders' meeting of any Mutual Fund, the Trustee shall send a copy
of the notice and all proxy solicitation materials
8
to each Plan Participant who has hypothetical shares of the Mutual Fund credited
to the Participant's accounts, together with a voting direction form for return
to the Trustee or its designee. The Participant shall have the right to direct
the Trustee as to the manner in which the Trustee is to vote the hypothetical
shares credited to the Participant's accounts. The Trustee shall vote the shares
held in the Trust in the same manner as directed by the Participant under the
Plan. The Trustee shall not vote shares for which it has received no
corresponding directions from the Participant. During the Participant
Recordkeeping Reconciliation Period, the Sponsor shall have the right to direct
the Trustee as to the manner in which the Trustee is to vote the shares of the
Mutual Funds in the Trust. With respect to all rights other than the right to
vote, the Trustee shall follow the directions of the Sponsor. The Trustee shall
have no duty to solicit directions from the Sponsor.
(e) Stock.
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(i) FMC Stock Fund. Trust investments in FMC Stock shall be made via
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the FMC Stock Fund. Investments in the FMC Stock Fund shall consist primarily of
shares of FMC Stock. The FMC Stock Fund shall also include cash or short-term
liquid investments, in accordance with this paragraph, in amounts designed to
satisfy daily participant exchange or withdrawal requests. Such holdings will
include Colchester Street Trust: Money Market Portfolio: Class I, or such other
Mutual Fund as agreed to in writing by the Sponsor and Trustee. The Sponsor
shall, after consultation with the Trustee, establish and communicate to the
Trustee in writing a target percentage and drift allowance for such short-term
liquid investments. Subject to its ability to execute open-market trades in FMC
Stock or to otherwise trade with the Sponsor, the Trustee shall be responsible
for ensuring that the short-term investments held in the FMC Stock Fund falls
within the agreed-upon range over time. Each Participant's hypothetical,
proportional interest in the FMC Stock Fund shall be measured in units of
participation, rather than shares of FMC Stock. Such units shall represent a
hypothetical, proportionate interest in all of the assets of the FMC Stock Fund,
which includes shares of FMC Stock, short-term investments and at times,
receivables and payables (such as receivables and payables arising out of
unsettled stock trades). The Trustee shall determine a daily NAV for each unit
outstanding of the FMC Stock Fund. Valuation of the FMC Stock Fund shall be
based upon: (1) the Closing Price or, if not available, (2) the price determined
in good faith by the Trustee taking into account the latest available price of
FMC Stock, as reported on the NYSE or such other principal national securities
exchange on which FMC Stock is traded. The NAV shall be adjusted for gains or
losses realized on sales of FMC Stock, appreciation or depreciation in the value
of those shares owned, dividends paid on FMC Stock to the extent not used to
purchase additional units of the FMC Stock Fund for affected Participants, and
interest on the short-term investments held by the FMC Stock Fund, payables and
receivables for pending stock trades, receivables for dividends not yet
distributed, and payables for other expenses of the FMC Stock Fund, including
principal obligations, if any, and expenses that, pursuant to
9
Sponsor direction, the Trustee accrues or pays from the FMC Stock Fund.
(A) Acquisition Limit. Pursuant to the Plan, the Trust may be
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invested in FMC Stock to the extent necessary to comply with investment
directions in accordance with this Agreement. The Sponsor shall be responsible
for providing specific direction on any acquisition limits required by the Plan
or applicable law. Notwithstanding anything herein to the contrary, effective as
of the Spin-Off Date, contributions and exchanges into the FMC Stock Fund are
prohibited.
(B) Fiduciary Duty. The Sponsor shall continually monitor the
--------------
suitability of acquiring and holding FMC Stock. The Trustee shall not be liable
for any loss or expense which arises from the directions of the Sponsor with
respect to the acquisition and holding of FMC Stock, unless it is clear on their
face that the actions to be taken under those directions would be prohibited by
the foregoing fiduciary duty rules or would be contrary to the terms of this
Agreement.
(C) Purchases and Sales of FMC Stock. Unless otherwise directed
-------------------------------
by the Sponsor in writing pursuant to directions that the Trustee can
administratively implement, the following provisions shall govern purchases and
sales of FMC Stock.
(I) Open Market Purchases and Sales. Purchases and sales of
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FMC Stock shall be made on the open market in accordance with the Trustee's
standard trading guidelines, as they may be amended by the Trustee from time to
time, as necessary to honor exchange and withdrawal activity and to maintain the
target cash percentage and drift allowance for the FMC Stock Fund, provided
that:
(1) If the Trustee is unable to purchase or sell the
total number of shares required to be purchased or sold on such day as a result
of market conditions; or
(2) If the Trustee is prohibited by the Securities and
Exchange Commission, the NYSE or principal exchange on which FMC Stock is
traded, or any other regulatory body from purchasing or selling any or all of
the shares required to be purchased or sold on such day, then the Trustee shall
purchase or sell such shares as soon thereafter as administratively feasible.
(II) Purchases and Sales from or to Sponsor. If directed by
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the Sponsor in writing prior to the trading date, the Trustee may purchase or
sell FMC Stock from or to the Sponsor if the purchase or sale is for adequate
consideration and no commission is charged. If Sponsor contributions (employer)
or contributions made by the Sponsor on behalf of the Participants (employee)
under the Plan are to be invested in FMC Stock, the Sponsor may transfer FMC
Stock in lieu of cash to the
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Trust.
(III) Use of an Affiliated Broker. The Sponsor hereby
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directs the Trustee to use NFSLLC to provide brokerage services in connection
with any purchase or sale of FMC Stock on the open market, except in
circumstances where the Trustee has determined, in accordance with its standard
trading guidelines or pursuant to Sponsor direction, to seek expedited
settlement of the trades. NFSLLC shall execute such directions directly or
through any of its affiliates. The provision of brokerage services shall be
subject to the following:
(1) As consideration for such brokerage services,
the Sponsor agrees that NFSLLC shall be entitled to remuneration under this
direction provision in an amount of no more than three and one-fifth cents
($.032) commission on each share of FMC Stock. Any change in such remuneration
may be made only by a signed agreement between the Sponsor and Trustee.
(2) The Trustee will provide the Sponsor with
periodic reports which summarize all securities transaction-related charges
incurred with respect to trades of FMC Stock for such Plan.
(3) Any successor organization of NFSLLC, through
reorganization, consolidation, merger or similar transactions, shall, upon
consummation of such transaction, become the successor broker in accordance with
the terms of this direction provision.
(4) The Trustee and NFSLLC shall continue to rely
on this direction provision until notified to the contrary. The Sponsor reserves
the right to terminate this direction upon written notice to NFSLLC (or its
successor) and the Trustee, in accordance with Section 9 of this Agreement.
(D) Execution of Purchases and Sales of Units. Unless
-----------------------------------------
otherwise directed in writing pursuant to directions that the Trustee can
administratively implement, purchases and sales of units shall be made as
follows:
(I) Subject to subparagraphs (II) and (III) below,
purchases and sales of units in the FMC Stock Fund (other than for exchanges)
shall be made on the date on which the Trustee receives from the Administrator
in good order all information, documentation, and wire transfers of
11
funds (if applicable), necessary to accurately effect such transactions.
Exchanges of units in the FMC Stock Fund shall be made in accordance with the
Exchange Guidelines attached hereto as Schedule "E."
(II) Aggregate sales of units in the FMC Stock Fund on
any day shall be limited to the FMC Stock Fund's Available Liquidity for that
day. In the event that the requested sales exceed the Available Liquidity, then
transactions shall be processed giving precedence to distributions, and
withdrawals, and otherwise on a FIFO basis, as provided in the Specified
Hierarchy. So long as the FMC Stock Fund is open for such transactions, sales of
units that are requested but not processed on a given day due to insufficient
Available Liquidity shall be suspended until Available Liquidity is sufficient
to honor such transactions in accordance with the Specified Hierarchy.
(III) The Trustee shall close the FMC Stock Fund to
sales or purchases of units, as applicable, on any date on which trading in the
FMC Stock has been suspended or substantial purchase or sale orders are
outstanding and cannot be executed.
(E) Securities Law Reports. The Trustee shall not be
----------------------
responsible for filing any reports required under Federal or state securities
laws with respect to the Trust's ownership of FMC Stock, including, without
limitation, any reports required under section 13 or 16 of the Securities
Exchange Act of 1934. The Sponsor shall be responsible for immediately notifying
the Trustee in writing of any requirement known to the Sponsor to stop purchases
or sales of FMC Stock. The Trustee shall provide to the issuer of FMC Stock such
information on the Trust's ownership of FMC Stock as the issuer of FMC Stock may
reasonably request in order to comply with Federal or state securities laws.
(F) Voting and Tender Offers. Notwithstanding any other
------------------------
provision of this Agreement the provisions of this Section shall govern the
voting and tendering of FMC Stock. The Sponsor shall pay for all printing,
mailing, tabulation and other costs associated with the voting and tendering of
FMC Stock to the extent that such costs are not paid for by the issuer of FMC
Stock.
(I) Voting. Prior to the Spin-Off date, for all shares
------
of FMC Stock, both those that are hypothetically allocated to Participants in
the form of units and those that are unallocated, the Trustee shall vote as
directed by the Sponsor, except as otherwise required by law. Directions from
the Sponsor to the Trustee concerning the voting of FMC Stock shall be
communicated in writing, or by such other means as agreed upon by the Trustee
and the Sponsor.
Effective as of the Spin-Off Date, the Trustee shall furnish to the
transfer agent of the issuer of FMC Stock the names, addresses and social
security numbers of each Participant with a hypothetical
12
interest in the FMC Stock Fund, and the percentages of shares hypothetically
owned by each Participant as of the record date through reports and/or data
tape. The issuer of FMC Stock shall be responsible for distributing proxy
materials and voting instruction forms to Participants holding an interest in
the FMC Stock Fund. In the event that the issuer of FMC Stock does not
distribute said proxy materials and voting instruction forms to Participants
holding a hypothetical interest in FMC Stock, the Sponsor shall: (1) utilize its
best efforts to timely distribute or cause to be distributed to Participants
said information; and (2) upon request, provide the Trustee with a copy of any
material provided to the Participants and certify to the Trustee that the
materials have been mailed or otherwise sent to Participants.
Effective as of the Spin-Off, each Participant with a hypothetical
interest in the FMC Stock Fund (i.e. shares which are allocated to Participant's
hypothetical accounts) shall have the right to direct the Trustee as to the
manner in which the Trustee is to vote (including not to vote) that number of
shares of FMC Stock reflecting such Participant's hypothetical, proportional
interest in the FMC Stock Fund (both vested and unvested). Directions from a
Participant to the Trustee concerning the voting of Sponsor Stock shall be
communicated in writing, or by such other means as is agreed upon by the Trustee
and the Sponsor. These directions shall be held in confidence by the Trustee and
shall not be divulged to the Sponsor, or any officer or employee thereof, or any
other person except to the extent that the consequences of such directions are
reflected in reports regularly communicated to any such persons in the ordinary
course of the performance of the Trustee's services hereunder. Upon its receipt
of the directions, the Trustee shall vote the shares of FMC Stock reflecting the
Participant's hypothetical, proportional interest in the FMC Stock Fund as
directed by the Participant. After the Spin-Off Date, except as otherwise
required by law, the Trustee shall vote shares of FMC Stock reflecting a
Participant's hypothetical, proportional interest in the FMC Stock Fund for
which it has received no direction from the Participant, as well as shares that
are unallocated, in the same manner and in the same proportion as the total
numbers of shares of FMC Stock credited to the Participants' accounts for which
it has received direction from Participants.
(II) Tender Offers.
-------------
(1) Prior to the Spin-Off Date, for all shares of
FMC Stock, both those that are hypothetically allocated to Participants in the
form of units and those that are unallocated, the Trustee shall tender or not
tender as directed by the Sponsor. Directions from the Sponsor to the Trustee
concerning the tender of FMC Stock shall be communicated in writing, or by such
other means as agreed upon by the Trustee and the Sponsor through the Sponsor's
transfer agent.
(2) Effective as of the Spin-Off Date, each
Participant with a hypothetical, interest in the FMC Stock Fund shall have the
right to direct the Trustee to tender or not
13
to tender some or all of the shares of FMC Stock reflecting such Participant's
hypothetical, proportional interest in the FMC Stock Fund (both vested and
unvested). Directions from a Participant to the Trustee concerning the tender of
FMC Stock shall be communicated in writing, or by such other means as is agreed
upon by the Trustee and the Sponsor. These directions shall be held in
confidence by the Trustee and shall not be divulged to the Sponsor, or any
officer or employee thereof, or any other person except to the extent that the
consequences of such directions are reflected in reports regularly communicated
to any such persons in the ordinary course of the performance of the Trustee's
services hereunder. The Trustee shall tender or not tender shares of FMC Stock
as directed by the Participant. After the Spin-Off Date, except as otherwise
required by law, the Trustee shall not tender shares of FMC Stock reflecting a
Participant's hypothetical, proportional interest in the FMC Stock Fund for
which it has received no direction from the Participant.
(3) Effective as of the Spin-Off Date, except as
otherwise required by law, the Trustee shall tender that number of shares of FMC
Stock not credited to Participants' accounts in the same proportion as the total
number of shares of FMC Stock credited to Participants' accounts for which it
has received instructions from Participants.
(4) Both prior to and effective as of the Spin-Off
Date, a direction by a Participant to the Trustee to tender shares of Sponsor
Stock reflecting the Participant's hypothetical, proportional interest in the
FMC Stock Fund shall not be considered a written election under the Plan by the
Participant to withdraw, or have distributed, any or all of his withdrawable
shares. The Trustee shall credit to each hypothetical, proportional interest of
the Participant from which the tendered shares were taken the proceeds received
by the Trustee in exchange for the shares of FMC Stock tendered from that
interest. Pending receipt of directions (through the Administrator) from the
Participant or the Sponsor, as provided in the Plan, as to which of the
remaining investment options the proceeds should be invested in, the Trustee
shall invest the proceeds in the Fidelity Retirement Government Money Market
Portfolio.
(5) Effective as of the Spin-Off Date, a
Participant who has directed the Trustee to tender some or all of the shares of
FMC Stock reflecting the Participant's proportional interest in the FMC Stock
Fund may, at any time prior to the tender offer withdrawal date, direct the
Trustee to withdraw some or all of the tendered shares reflecting the
Participant's proportional interest, and the Trustee shall withdraw the directed
number of shares from the tender offer prior to the tender offer withdrawal
deadline. Prior to the withdrawal deadline, if any shares of FMC Stock not
credited to Participants' accounts have been tendered, the Trustee shall
redetermine the number of shares of FMC Stock that would be tendered under
Section 5(e)(i)(F)(II) if the date of the foregoing withdrawal were the
14
date of determination, and withdraw from the tender offer the number of shares
of FMC Stock not credited to Participants' accounts necessary to reduce the
amount of tendered FMC Stock not credited to Participants' accounts to the
amount so redetermined. A Participant shall not be limited as to the number of
directions to tender or withdraw that the Participant may give to the Trustee.
(G) General. With respect to all shareholder rights other than the
-------
right to vote, the right to tender, and the right to withdraw shares previously
tendered, in the case of FMC Stock, the Trustee shall follow the procedures set
forth in section 5(e)(i)(F)(I), above.
(H) Conversion. All provisions in this Section 5(e)(i) shall also
----------
apply to any securities received as a result of a conversion of FMC Stock.
(I) Notice. As soon as practicable following the Spin-Off Date, the
------
Sponsor shall provide written notice to the Trustee regarding the date on which
FMC Corporation distributed its interest in the Sponsor. Said written notice
shall: (1) include all information deemed reasonably necessary by the Trustee
and the Sponsor to carry out the terms of this Agreement and (2) be sent by
certified or registered mail, return receipt requested, to the Trustee c/o
Xxxxxx Xxxxxxx, Fidelity Investments, 000 Xxxxxxx Xxx, XX0X, Xxxxxxxxxxx, XX
00000-0000.
(ii) FMC Technologies Stock Fund. Trust investments in FMC Technologies
---------------------------
Stock shall be made via the FMC Technologies Stock Fund. Investments in the FMC
Technologies Stock Fund shall consist primarily of shares of FMC Technologies
Stock. The FMC Technologies Stock Fund shall also include cash or short-term
liquid investments, in accordance with this paragraph, in amounts designed to
satisfy daily participant exchange or withdrawal requests. Such holdings will
include Colchester Street Trust: Money Market Portfolio: Class I, or such other
Mutual Fund as agreed to in writing by the Sponsor and Trustee. The Sponsor
shall, after consultation with the Trustee, establish and communicate to the
Trustee in writing a target percentage and drift allowance for such short-term
liquid investments. Subject to its ability to execute open-market trades in FMC
Technologies Stock or to otherwise trade with the Sponsor, the Trustee shall be
responsible for ensuring that the short-term investments held in the FMC
Technologies Stock Fund falls within the agreed-upon range over time. Each
Participant's hypothetical, proportional interest in the FMC Technologies Stock
Fund shall be measured in units of participation, rather than shares of FMC
Technologies Stock. Such units shall represent a hypothetical, proportionate
interest in all of the assets of the FMC Technologies Stock Fund, which includes
shares of FMC Technologies Stock, short-term investments and at times,
receivables and payables (such as receivables and payables arising out of
unsettled stock trades). The Trustee shall determine a daily NAV for each unit
outstanding of the FMC Technologies Stock Fund. Valuation of the FMC
Technologies Stock Fund shall be based upon: (1) the
15
Closing Price or, if not available, (2) the price determined in good faith by
the Trustee taking into account the latest available price of FMC Technologies
Stock, as reported on the NYSE or such other principal national securities
exchange on which FMC Technologies Stock is traded. The NAV shall be adjusted
for gains or losses realized on sales of FMC Technologies Stock, appreciation or
depreciation in the value of those shares owned, dividends paid on FMC
Technologies Stock to the extent not used to purchase additional units of the
FMC Technologies Stock Fund for affected Participants, and interest on the
short-term investments held by the FMC Technologies Stock Fund, payables and
receivables for pending stock trades, receivables for dividends not yet
distributed, and payables for other expenses of the FMC Technologies Stock Fund,
including principal obligations, if any, and expenses that, pursuant to Sponsor
direction, the Trustee accrues or pays from the FMC Technologies Stock Fund.
(A) Acquisition Limit. Pursuant to the Plan, the Trust may be invested
-----------------
in FMC Technologies Stock to the extent necessary to comply with investment
directions in accordance with this Agreement. The Sponsor shall be responsible
for providing specific direction on any acquisition limits required by the Plan
or applicable law.
(B) Fiduciary Duty. The Sponsor shall continually monitor the
--------------
suitability of acquiring and holding FMC Technologies Stock. The Trustee shall
not be liable for any loss or expense which arises from the directions of the
Sponsor with respect to the acquisition and holding of FMC Technologies Stock,
unless it is clear on their face that the actions to be taken under those
directions would be prohibited by the foregoing fiduciary duty rules or would be
contrary to the terms of this Agreement.
(C) Purchases and Sales of FMC Technologies Stock. Unless otherwise
---------------------------------------------
directed by the Sponsor in writing pursuant to directions that the Trustee can
administratively implement, the following provisions shall govern purchases and
sales of FMC Technologies Stock.
(I) Open Market Purchases and Sales. Purchases and sales of FMC
-------------------------------
Technologies Stock shall be made on the open market in accordance with the
Trustee's standard trading guidelines, as they may be amended by the Trustee
from time to time, as necessary to honor exchange and withdrawal activity and to
maintain the target cash percentage and drift allowance for the FMC Technologies
Stock Fund, provided that:
(1) If the Trustee is unable to purchase or sell the total
number of shares required to be purchased or sold on such day as a result of
market conditions; or
(2) If the Trustee is prohibited by the Securities and
16
Exchange Commission, the NYSE or principal exchange on which FMC Technologies
Stock is traded, or any other regulatory body from purchasing or selling any or
all of the shares required to be purchased or sold on such day, then the Trustee
shall purchase or sell such shares as soon thereafter as administratively
feasible.
(II) Purchases and Sales from or to Sponsor. If directed by the
--------------------------------------
Sponsor in writing prior to the trading date, the Trustee may purchase or sell
FMC Technologies Stock from or to the Sponsor if the purchase or sale is for
adequate consideration and no commission is charged. If Sponsor contributions
(employer) or contributions made by the Sponsor on behalf of the Participants
(employee) under the Plan are to be invested in FMC Technologies Stock, the
Sponsor may transfer FMC Technologies Stock in lieu of cash to the Trust.
(III) Use of an Affiliated Broker. The Sponsor hereby directs the
---------------------------
Trustee to use NFSLLC to provide brokerage services in connection with any
purchase or sale of FMC Technologies Stock on the open market, except in
circumstances where the Trustee has determined, in accordance with its standard
trading guidelines or pursuant to Sponsor direction, to seek expedited
settlement of the trades. NFSLLC shall execute such directions directly or
through any of its affiliates. The provision of brokerage services shall be
subject to the following:
(1) As consideration for such brokerage services, the
Sponsor agrees that NFSLLC shall be entitled to remuneration under this
direction provision in an amount of no more than three and one-fifth cents
($.032) commission on each share of FMC Technologies Stock. Any change in such
remuneration may be made only by a signed agreement between the Sponsor and
Trustee.
(2) The Trustee will provide the Sponsor with periodic
reports which summarize all securities transaction-related charges incurred with
respect to trades of FMC Technologies Stock for such Plan.
(3) Any successor organization of NFSLLC, through
reorganization, consolidation, merger or similar transactions, shall, upon
consummation of such transaction, become the successor broker in accordance with
the terms of this direction provision.
(4) The Trustee and NFSLLC shall continue to rely on this
direction provision until notified to the contrary. The Sponsor reserves the
right to terminate this direction upon written notice to NFSLLC (or its
successor) and the Trustee, in accordance with Section 9 of
17
this Agreement.
(D) Execution of Purchases and Sales of Units. Unless otherwise
-----------------------------------------
directed in writing pursuant to directions that the Trustee can administratively
implement, purchases and sales of units shall be made as follows:
(I) Subject to subparagraphs (II) and (III) below, purchases and
sales of units in the FMC Technologies Stock Fund (other than for exchanges)
shall be made on the date on which the Trustee receives from the Administrator
in good order all information, documentation, and wire transfers of funds (if
applicable), necessary to accurately effect such transactions. Exchanges of
units in the FMC Technologies Stock Fund shall be made in accordance with the
Exchange Guidelines attached hereto as Schedule "E".
(II) Aggregate sales of units in the FMC Technologies Stock Fund
on any day shall be limited to the FMC Technologies Stock Fund's Available
Liquidity for that day. In the event that the requested sales exceed the
Available Liquidity, then transactions shall be processed giving precedence to
distributions and withdrawals, and otherwise on a FIFO basis, as provided in the
Specified Hierarchy. So long as the FMC Technologies Stock Fund is open for such
transactions, sales of units that are requested but not processed on a given day
due to insufficient Available Liquidity shall be suspended until Available
Liquidity is sufficient to honor such transactions in accordance with the
Specified Hierarchy.
(III) The Trustee shall close the FMC Technologies Stock Fund to
sales or purchases of units, as applicable, on any date on which trading in the
FMC Technologies Stock has been suspended or substantial purchase or sale orders
are outstanding and cannot be executed.
(E) Securities Law Reports. The Trustee shall not be responsible for
----------------------
filing any reports required under Federal or state securities laws with respect
to the Trust's ownership of FMC Technologies Stock, including, without
limitation, any reports required under section 13 or 16 of the Securities
Exchange Act of 1934. The Sponsor shall be responsible for immediately notifying
the Trustee in writing of any requirement to stop purchases or sales of FMC
Technologies Stock. The Trustee shall provide to the Sponsor such information on
the Trust's ownership of FMC Technologies Stock as the Sponsor may reasonably
request in order to comply with Federal or state securities laws.
(F) Voting and Tender Offers. Notwithstanding any other provision of
------------------------
this Agreement the provisions of this Section shall govern the voting and
tendering of FMC Technologies Stock.
18
The Sponsor shall pay for all printing, mailing, tabulation and other costs
associated with the voting and tendering of FMC Technologies Stock.
(I) Voting. For all shares of FMC Technologies Stock, both those
------
that are hypothetically allocated to Participants in the form of units, and
those that are unallocated, the Trustee shall vote as directed by the Sponsor,
except as otherwise required by law. Directions from the Sponsor to the Trustee
concerning the voting of FMC Technologies Stock shall be communicated in
writing, or by such other means as agreed upon by the Trustee and the Sponsor
through the Sponsor's transfer agent.
(II) Tender Offers.
-------------
(1) For all shares of FMC Technologies Stock, both those
that are hypothetically allocated to Participants in the form of units, and
those that are unallocated, the Trustee shall tender or not tender as directed
by the Sponsor. Directions from the Sponsor to the Trustee concerning the tender
of FMC Technologies Stock shall be communicated in writing, or by such other
means as agreed upon by the Trustee and the Sponsor through the Sponsor's
transfer agent.
(2) A direction by the Sponsor to the Trustee to tender
shares of FMC Technologies Stock reflecting the Participant's hypothetical,
proportional interest in the FMC Technologies Stock Fund shall not be considered
a written election under the Plan by the Participant to withdraw, or have
distributed, any or all of his withdrawable shares. The Trustee shall credit to
each hypothetical, proportional interest of the Participant from which the
tendered shares were taken the proceeds received by the Trustee in exchange for
the shares of FMC Technologies Stock tendered from that interest. Pending
receipt of directions (through the Sponsor) from the Participant or the Sponsor,
as provided in the Plan, as to which of the remaining investment options the
proceeds should be invested in, the Trustee shall invest the proceeds in the
Fidelity Retirement Government Money Market Portfolio.
(G) General. With respect to all shareholder rights other than the
-------
right to vote, the right to tender, and the right to withdraw shares previously
tendered, in the case of FMC Technologies Stock, the Trustee shall follow the
procedures set forth in subsection F(I) above.
(H) Conversion. All provisions in this Section 5(e)(ii) shall also
----------
apply to any securities received as a result of a conversion of FMC Technologies
Stock.
19
(f) Trustee Powers. The Trustee shall have the following powers and
--------------
authority:
(i) Subject to Subsection (a) of this Section 5, to sell, exchange,
convey, transfer, or otherwise dispose of any property held in the Trust, by
private contract or at public auction. No person dealing with the Trustee shall
be bound to see to the application of the purchase money or other property
delivered to the Trustee or to inquire into the validity, expediency, or
propriety of any such sale or other disposition.
(ii) To cause any securities or other property held as part of the
Trust to be registered in the Trustee's own name, in the name of one or more of
its nominees, or in the Trustee's account with the Depository Trust Company of
New York and to hold any investments in bearer form, but the books and records
of the Trustee shall at all times show that all such investments are part of the
Trust.
(iii) To keep that portion of the Trust in cash or cash balances as
the Sponsor or Administrator may, from time to time, deem to be in the best
interest of the Trust.
(iv) To make, execute, acknowledge, and deliver any and all documents
of transfer or conveyance and to carry out the powers herein granted.
(v) With the written consent of the Sponsor, which consent shall not
be unreasonably withheld, to: (1) settle, compromise, or submit to arbitration
any claims, debts or damages due to or arising from the Trust; (2) commence or
defend suits or legal or administrative proceedings; (3) represent the Trust in
all suits and legal and administrative hearings; (4) and pay all reasonable
expenses arising from any such action from the Trust, if not paid by the
Sponsor.
(vi) With the written consent of the Sponsor, which consent shall not
be unreasonably withheld, to: (1) employ legal, accounting, clerical, and other
assistance as may be reasonably required in carrying out the provisions of this
Agreement: and (2) pay their reasonable expenses and compensation from the
Trust, if not paid by the Sponsor.
(vii) To do all other acts although not specifically mentioned herein,
as the Trustee may deem reasonably necessary to carry out any of the foregoing
powers and the purposes of the Trust.
(viii) To borrow funds from a bank not affiliated with the Trustee in
order to provide sufficient liquidity to process Plan transactions in a timely
fashion, provided that the cost of borrowing shall be allocated in a reasonable
fashion to the investment fund(s) in need of liquidity.
20
Notwithstanding any powers granted to Trustee pursuant to this
Agreement or to applicable law, Trustee shall not have any power that could give
this Trust the objective of carrying on a business and dividing the gains
therefrom, within the meaning of Section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Code.
Section 6. Recordkeeping and Administrative Services to Be Performed.
---------------------------------------------------------
(a) General. The Trustee shall perform those recordkeeping and
-------
administrative functions described in Schedule "A" attached hereto. These
recordkeeping and administrative functions shall be performed within the
framework of the Administrator's written directions regarding the Plan's
provisions, guidelines and interpretations.
(b) Accounts. The Trustee shall keep accurate accounts of all
--------
investments, receipts, disbursements, and other transactions hereunder, and
shall report the value of the assets held in the Trust as of the last day of
each fiscal quarter of the Plan and, if not on the last day of a fiscal quarter,
the date on which the Trustee resigns or is removed as provided in Section 9 of
this Agreement or is terminated as provided in Section 11. Within thirty (30)
days following each Reporting Date or within sixty (60) days in the case of a
Reporting Date caused by the resignation or removal of the Trustee, or the
termination of this Agreement, the Trustee shall file with the Administrator a
written account setting forth all investments, receipts, disbursements, and
other transactions effected by the Trustee between the Reporting Date and the
prior Reporting Date, and setting forth the value of the Trust as of the
Reporting Date. Except as otherwise required under applicable law, upon the
expiration of one (1) year from the date of filing such account with the
Administrator, the Trustee shall have no liability or further accountability to
anyone with respect to the propriety of its acts or transactions shown in such
account, except with respect to such acts or transactions as to which the
Sponsor shall within such one (1) year period file with the Trustee written
objections. During said one (1) year period, errors caused by the Trustee, its
agents or affiliates will be corrected by the Trustee at the Trustee's expense.
After said one (1) year period, errors will be corrected by the Trustee at the
Sponsor's expense.
(c) Inspection and Audit. Prior to the termination of this Agreement, all
--------------------
records generated by the Trustee in accordance with paragraphs (a) and (b) shall
be open to inspection and audit, during the Trustee's regular business hours, by
the Administrator or any person designated by the Administrator. Upon the
resignation or removal of the Trustee or the termination of this Agreement, the
Trustee shall provide to the Administrator, at no expense to the Sponsor, in the
format regularly provided to the Administrator which shall be machine readable,
a statement of each Participant's accounts as of the resignation, removal,
21
or termination, and the Trustee shall provide to the Administrator or the Plan's
new recordkeeper such further records as are reasonable, at the Sponsor's
expense.
(d) Effect of Plan Amendment. The Trustee's provision of the recordkeeping
------------------------
and administrative services set forth in this Section 6 shall be conditioned on
the Sponsor delivering to the Trustee a copy of any amendment to the Plan as
soon as administratively feasible following the amendment's adoption, and on the
Administrator providing the Trustee on a timely basis with all the information
the Administrator deems necessary for the Trustee to perform the recordkeeping
and administrative services and such other information as the Trustee may
reasonably request.
(e) Returns, Reports and Information. The Administrator shall be
--------------------------------
responsible for the preparation and filing of all returns, reports, and
information required of the Trust or Plan by law. The Trustee shall provide the
Administrator with such information in the Trustee's regular format, which shall
be machine readable, as the Administrator may reasonably request to make these
filings at no additional cost to the Sponsor or the Trust. The Administrator
shall also be responsible for making any disclosures to Participants required by
law.
Section 7. Compensation and Expenses. Sponsor shall pay to Trustee, within
-------------------------
thirty (30) days of receipt of the Trustee's xxxx, the fees for services in
accordance with Schedule "B". All fees for services are specifically outlined in
Schedule "B" and are based on any assumptions identified therein. To reflect
increased operating costs, but not prior to September 28, 2002, Trustee may once
each calendar year amend Schedule B without the Sponsor's consent upon ninety
(90) days prior notice to the Sponsor.
All reasonable expenses of plan administration as shown on Schedule "B"
attached hereto, as amended from time to time, shall be a charge against and
paid from the appropriate plan Participants' accounts, except to the extent such
amounts are paid by the Plan Sponsor in a timely manner.
All expenses of the Trustee relating directly to the acquisition and
disposition of investments constituting part of the Trust, and all taxes of any
kind whatsoever that may be levied or assessed under existing or future laws
upon or in respect of the Trust or the income thereof, shall be a charge against
and paid from the appropriate Participants' accounts.
22
Section 8. Directions and Indemnification.
------------------------------
(a) Identity of Administrator. The Trustee shall be fully protected in
-------------------------
relying on the fact that the Administrator under the Plan is the individual or
persons named as such above or such other individuals or persons as the Sponsor
may notify the Trustee in writing.
(b) Directions from Administrator. Whenever the Administrator provides a
-----------------------------
direction to the Trustee, the Trustee shall not be liable for any loss, or by
reason of any breach, arising from the direction if the direction is contained
in a writing (or is oral and immediately confirmed in a writing) signed by any
individual whose name and signature have been submitted (and not withdrawn) in
writing to the Trustee by the Administrator in the form attached hereto as
Schedule "C", provided the Trustee reasonably believes the signature of the
individual to be genuine. Such direction may be made via electronic data
transfer ("EDT") in accordance with procedures agreed to by the Administrator
and the Trustee; provided, however, that the Trustee shall be fully protected in
relying on such direction as if it were a direction made in writing by the
Administrator. The Trustee shall have no responsibility to ascertain any
direction's (i) accuracy, (ii) compliance with the terms of the Plan or any
applicable law, or (iii) effect for tax purposes or otherwise.
(c) Directions from Participants. The Trustee shall not be liable for any
----------------------------
loss which arises from any Participant's exercise or non-exercise of rights
under Section 5 over the assets in the Participant's accounts.
(d) Indemnification. The Sponsor shall indemnify the Trustee against, and
---------------
hold the Trustee harmless from, any and all loss, damage, penalty, liability,
cost, and expense, including without limitation, reasonable attorneys' fees and
disbursements ("Losses"), that may be incurred by, imposed upon, or asserted
against the Trustee by reason of any claim asserted by any person by reason of
the Trustee's service under the Trust whereby the Trustee has acted in good
faith reliance on the direction of the Administrator or information provided by
the Administrator or Sponsor, excepting any and all Losses arising from the
Trustee's negligence, bad faith, or breach of this Agreement.
The Trustee shall indemnify the Sponsor against, and hold the Sponsor
harmless from, any and all Losses that may be incurred by, imposed upon, or
asserted against the Sponsor by reason of any claim, regulatory proceeding, or
litigation arising from Trustee's, its agents', affiliates' or their successors'
negligence, bad faith or breach of this Agreement.
The Trustee shall indemnify the Sponsor against and hold the Sponsor
harmless from any and all such Losses, that may be incurred by, imposed upon, or
asserted against the Sponsor solely as a result of: (i)
23
any defects in the investment methodology embodied in the target asset
allocation or model portfolio provided through Fidelity PortfolioPlanner, except
to the extent that any such Loss arises from information provided by the
Participant, the Sponsor or third parties; or (ii) any prohibited transactions
resulting from the provision by of Fidelity PortfolioPlanner.
(e) Survival. The provisions of this Section 8 shall survive the
--------
termination of this Agreement.
Section 9. Resignation or Removal of Trustee.
---------------------------------
(a) Resignation. The Trustee may resign at any time upon sixty (60) days'
-----------
notice in writing to the Sponsor, unless a shorter period of notice is agreed
upon by the Sponsor.
(b) Removal. The Administrator may remove the Trustee at any time upon
-------
thirty (30) days' notice in writing to the Trustee, unless a shorter period of
notice is agreed upon by the Trustee. Upon the occurrence of a Potential Change
in Control or a Change in Control, the Sponsor may not remove the Trustee unless
the Administrator appoints a nationally recognized successor corporate trustee
to serve under this Agreement until all benefits payable hereunder are
distributed to the Participants and/or their beneficiaries.
Section 10. Successor Trustee.
-----------------
(a) Appointment. If the office of Trustee becomes vacant for any reason,
-----------
the Sponsor may in writing appoint a successor trustee under this Agreement. The
successor trustee shall have all of the rights, powers, privileges, obligations,
duties, liabilities, and immunities granted to the Trustee under this Agreement.
The successor trustee and predecessor trustee shall not be liable for the acts
or omissions of the other with respect to the Trust.
(b) Acceptance. When the successor trustee accepts its appointment under
----------
this Agreement, title to and possession of the Trust assets shall immediately
vest in the successor trustee without any further action on the part of the
predecessor trustee. The predecessor trustee shall execute all instruments and
do all acts that reasonably may be necessary or reasonably may be requested in
writing by the Sponsor or the successor trustee to vest title to all Trust
assets in the successor trustee or to deliver all Trust assets to the successor
trustee.
24
(c) Corporate Action. Any successor of the Trustee or successor trustee,
----------------
through sale or transfer of the business or trust department of the Trustee or
successor trustee, or through reorganization, consolidation, or merger, or any
similar transaction, shall, upon consummation of the transaction, become the
successor trustee under this Agreement.
Section 11. Termination. This Agreement may be terminated at any time by the
-----------
Sponsor upon sixty (60) days' notice in writing to the Trustee. On the date of
the termination of this Agreement, the Trustee shall forthwith transfer and
deliver to such individual or entity as the Sponsor shall designate, all cash
and assets then constituting the Trust. If, by the termination date, the Sponsor
has not notified the Trustee in writing as to whom the assets and cash are to be
transferred and delivered, the Trustee may bring an appropriate action or
proceeding for leave to deposit the assets and cash in a court of competent
jurisdiction. The Trustee shall be reimbursed by the Sponsor for all costs and
expenses of the action or proceeding including, without limitation, reasonable
attorneys' fees and disbursements.
Section 12. Resignation, Removal, and Termination Notices. All notices of
---------------------------------------------
resignation, removal, or termination under this Agreement must be in writing and
mailed to the party to which the notice is being given by certified or
registered mail, return receipt requested, to the Sponsor c/o Vice President and
General Counsel, FMC Technologies, Inc., 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, and to the Trustee c/o Xxxx X. Xxxxxx, Fidelity Investments, 00
Xxxxxxxxxx Xxxxxx, X0X, Xxxxxx, Xxxxxxxxxxxxx 00000, or to such other addresses
as the parties have notified each other of in the foregoing manner.
Section 13. Duration. This Trust shall continue in effect without limit as to
--------
time, subject, however, to the provisions of this Agreement relating to
amendment, modification, and termination thereof.
Section 14. Insolvency of Sponsor.
---------------------
(a) Trustee shall cease disbursement of funds for payment of benefits to
Participants and their beneficiaries if the Sponsor is Insolvent. Sponsor shall
be considered "Insolvent" for purposes of this Trust Agreement if (i) Sponsor is
unable to pay its debts as they become due, or (ii) Sponsor is subject to a
pending proceeding as a debtor under the United States Bankruptcy Code.
(b) All times during the continuance of this Trust, the principal and
income of the Trust shall be subject to claims of general creditors of the
Sponsor under federal and state law as set forth below.
(i) The Board of Directors and the Chief Executive Officer of the
Sponsor shall have the duty to inform Trustee in writing of Sponsor's
Insolvency. If a person claiming to be a creditor of
25
the Sponsor alleges in writing to Trustee that Sponsor has become Insolvent,
Trustee shall determine whether Sponsor is Insolvent and, pending such
determination, Trustee shall discontinue disbursements for payment of benefits
to Plan Participants or their beneficiaries.
(ii) Unless Trustee has actual knowledge of Sponsor's Insolvency, or
has received notice from Sponsor or a person claiming to be a creditor alleging
that Sponsor is Insolvent, Trustee shall have no duty to inquire whether Sponsor
is Insolvent. Trustee may in all events rely on such evidence concerning
Sponsor's solvency as may be furnished to Trustee and that provides Trustee with
a reasonable basis for making a determination concerning Sponsor's solvency.
(iii) If at any time Trustee has determined that Sponsor is Insolvent,
Trustee shall discontinue disbursements for payments to Participants or their
beneficiaries and shall hold the assets of the Trust for the benefit of
Sponsor's general creditors. Nothing in this Trust Agreement shall in any way
diminish any rights of Participants or their beneficiaries to pursue their
rights as general creditors of Sponsor with respect to benefits due under the
Plan or otherwise.
(iv) Trustee shall resume disbursement for the payment of benefits to
Participants or their beneficiaries in accordance with Section 4 of this Trust
Agreement only after Trustee has determined that Sponsor is not Insolvent (or is
no longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee discontinues the
payment of benefits from the Trust pursuant to (a) hereof and subsequently
resumes such payments, the first payment following such discontinuance shall
include the aggregate amount of all payments due to Participants or their
beneficiaries under the terms of the Plan for the period of such discontinuance,
less the aggregate amount of any payments made to Participants or their
beneficiaries by Sponsor in lieu of the payments provided for hereunder during
any such period of discontinuance.
(d) Any Sponsor Stock contributed to the Trust by the Sponsor to meet any
obligation of an Affiliate or the Sponsor to Plan participants who are employed
by an Affiliate will be subject to the terms of this Section 14 as if the term
"Affiliate" is substituted for the term "Sponsor" wherever it appears in Section
14(a) through (c).
Section 15. Change in Control. For purposes of this Trust, Change in Control
-----------------
shall mean the happening of any of the following events:
(a) An acquisition by any individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934
("Exchange Act")) (a "Person") of beneficial ownership
26
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty
percent (20%) or more of either (i) the then outstanding shares of common stock
of the Sponsor (the "Outstanding Sponsor Common Stock") or (ii) the combined
voting power of the then outstanding voting securities of the Sponsor entitled
to vote generally in the election of directors (the "Outstanding Sponsor Voting
Securities"); excluding, however, the following: (1) any acquisition directly
from the Sponsor, other than an acquisition by virtue of the exercise of a
conversion privilege unless the security being so converted was itself acquired
directly from the Sponsor, (2) any acquisition by the Sponsor, (3) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Sponsor or any entity controlled by the Sponsor, or (4) any
acquisition pursuant to a transaction which complies with Subsections (i), (ii)
and (ii) of Subsection (c) of this Section 15;
(b) A change in the composition of the Board such that the individuals
who, as of the effective date of this Agreement ("Effective Date"), constitute
the Board (such Board will be hereinafter referred to as the "Incumbent Board")
cease for any reason to constitute at least a majority of the Board; provided,
however, for purposes of this Section 15, that any individual who becomes a
member of the Board subsequent to the Effective Date, whose election, or
nomination for election by the Sponsor's stockholders, was approved by a vote of
at least a majority of those individuals who are members of the Board and who
were also members of the Incumbent Board (or deemed to be such pursuant to this
proviso) will be considered as though such individual were a member of the
Incumbent Board; but, provided further, that any such individual whose initial
assumption of office occurs as a result of either an actual or threatened
election contest (as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) or other actual or threatened solicitation
of proxies or consents by or on behalf of a Person other than the Board will not
be so considered as a member of the Incumbent Board;
(c) Consummation of a reorganization, merger or consolidation, sale or
other disposition of all or substantially all of the assets of the Sponsor, or
acquisition by the Sponsor of the assets or stock of another entity ("Corporate
Transaction"); excluding, however, such a Corporate Transaction pursuant to
which (i) all or substantially all of the individuals and entities who are the
beneficial owners, respectively, of the Outstanding Sponsor Common Stock and
Outstanding Sponsor Voting Securities immediately prior to such Corporate
Transaction will beneficially own, directly or indirectly, more than sixty
percent (60%) of, respectively, the outstanding shares of common stock, and the
combined voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Corporate Transaction (including, without limitation, a
corporation which as a result of such transaction owns the Sponsor or all or
substantially all of the Sponsor's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Corporate Transaction, of the Outstanding Sponsor
Common Stock and Outstanding Sponsor Voting Securities, as the case may be, (ii)
no Person (other than the Sponsor, any
27
employee benefit plan (or related trust) of the Sponsor or such corporation
resulting from such Corporate Transaction) will beneficially own, directly or
indirectly, twenty percent (20%) or more of, respectively, the outstanding
shares of common stock of the corporation resulting from such Corporate
Transaction or the combined voting power of the outstanding voting securities of
such corporation entitled to vote generally in the election of directors except
to the extent that such ownership existed prior to the Corporate Transaction,
and (iii) individuals who were members of the Incumbent Board will constitute at
least a majority of the members of the board of directors of the corporation
resulting from such Corporate Transaction; or
(d) The approval by the stockholders of the Sponsor of a complete
liquidation or dissolution of the Sponsor.
In addition, a Change in Control will be deemed to occur upon a change in
control of FMC Corporation, as determined under the change in control provisions
of FMC Corporation's executive severance plan, if at the time of its change in
control, FMC Corporation owns more than fifty percent (50%) of the Outstanding
Sponsor Common Stock. Notwithstanding the foregoing, neither the initial
registered public offering by the Sponsor of shares of common stock of the
Sponsor, nor FMC Corporation's distribution of its interest in the Sponsor will
be treated as a Change in Control of the Sponsor.
Section 16. Amendment or Termination.
------------------------
(a) Amendment. This Agreement may be amended by a written instrument
---------
executed by the Trustee and the Sponsor. Notwithstanding the foregoing, no such
amendment shall conflict with the terms of the Plan or shall make the Trust
revocable after it has become irrevocable in accordance with Section 2(b)
hereof. Following a Change in Control, any amendment of the Trust requires the
approval of the Administrator.
(b) Termination. The Trust shall not terminate until the date on which
-----------
Participants and their beneficiaries are no longer entitled to benefits pursuant
to the terms of the Plan unless sooner revoked in accordance with Section 2(b)
hereof. Upon termination of the Trust any assets remaining in the Trust shall be
returned to the Sponsor.
Section 17. Electronic Services.
-------------------
(a) The Trustee may provide communications and services ("Electronic
Services") and/or software products ("Electronic Products") via electronic
media, including, but not limited to Fidelity Plan Sponsor WebStation. The
Sponsor and its agents agree to use such Electronic Services and Electronic
Products only in the course of reasonable administration of or participation in
the Plan and to keep confidential and not publish, copy, broadcast, retransmit,
reproduce, commercially exploit or otherwise
28
redisseminate the Electronic Products or Electronic Services or any portion
thereof without the Trustee's written consent, except, in cases where Trustee
has specifically notified the Sponsor that the Electronic Products or Services
are suitable for delivery to Sponsor's plan Participants, for non-commercial
personal use by Participants or beneficiaries with respect to their
participation in the Plan or for their other retirement planning purposes.
(b) The Sponsor shall be responsible for installing and maintaining all
Electronic Products, (including any programming required to accomplish the
installation) and for displaying any and all content associated with Electronic
Services on its computer network and/or Intranet so that such content will
appear exactly as it appears when delivered to Sponsor. All Electronic Products
and Services shall be clearly identified as originating from the Trustee or its
affiliate. The Sponsor shall promptly remove Electronic Products or Services
from its computer network and/or Intranet, or replace the Electronic Products or
Services with updated products or services provided by the Trustee, upon written
notification (including written notification via facsimile) by the Trustee.
(c) All Electronic Products shall be provided to the Sponsor without
any express or implied legal warranties or acceptance of legal liability by the
Trustee, and all Electronic Services shall be provided to the Sponsor without
acceptance of legal liability related to or arising out of the electronic nature
of the delivery or provision of such Services. Except as otherwise stated in
this Agreement, no rights are conveyed to any property, intellectual or
tangible, associated with the contents of the Electronic Products or Services
and related material. The Trustee hereby grants to the Sponsor a non-exclusive,
non-transferable revocable right and license to use the Electronic Products and
Services in accordance with the terms and conditions of this Agreement.
(d) To the extent that any Electronic Products or Services utilize
Internet services to transport data or communications, the Trustee will take,
and Sponsor agrees to follow, reasonable security precautions, however, the
Trustee disclaims any liability for interception of any such data or
communications. The Trustee reserves the right not to accept data or
communications transmitted via electronic media by the Sponsor or a third party
if it determines that the media does not provide adequate data security, or if
it is not administratively feasible for the Trustee to use the data security
provided. The Trustee shall not be responsible for, and makes no warranties
regarding access, speed or availability of
Internet or network services, or any other service required for electronic
communication. The Trustee shall not be responsible for any loss or damage
related to or resulting from any changes or modifications made by the Sponsor
without direction from the Trustee to the Electronic Products or Services after
delivering it to the Sponsor.
29
Section 18. General.
-------
(a) Performance by Trustee, its Agents or Affiliates. The Sponsor
------------------------------------------------
acknowledges and authorizes that the services to be provided under this
Agreement shall be provided by the Trustee, its agents or affiliates, or
successor to any of them, and that such services shall conform to the terms of
this Agreement.
(b) Entire Agreement. This Agreement together with the schedules
----------------
attached hereto, and the letter between Fidelity and FMC Technologies, Inc.
dated September 28, 2001, (which letter is incorporated by reference solely with
respect to the calculation of the fees as detailed on Schedule B hereto), which
are hereby incorporated by reference, contain all of the terms agreed upon
between the parties with respect to the subject matter hereof. The use of
capitalized terms in the schedules shall have the meaning as defined herein.
(c) Waiver. No waiver by either party of any failure or refusal to
------
comply with an obligation hereunder shall be deemed a waiver of any other or
subsequent failure or refusal to so comply.
(d) Successors and Assigns. The stipulations in this Agreement
----------------------
shall inure to the benefit of, and shall bind, the successors and assigns of the
respective parties.
(e) Partial Invalidity. If any term or provision of this Agreement or
------------------
the application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
(f) Section Headings. The headings of the various sections and
----------------
subsections of this Agreement have been inserted only for the purposes of
convenience and are not part of this Agreement and shall not be deemed in any
manner to modify, explain, expand or restrict any of the provisions of this
Agreement.
Section 19. Governing Law.
-------------
(a) Massachusetts Law Controls. This Agreement is being made in the
--------------------------
Commonwealth of Massachusetts, and the Trust shall be administered as a
Massachusetts trust. The validity, construction, effect, and administration of
this Agreement shall be governed by and interpreted in accordance with the
30
laws of the Commonwealth of Massachusetts, except to the extent those laws are
superseded under section 514 of ERISA.
(b) Trust Agreement Controls. The Trustee is not a party to the Plan,
------------------------
and in the event of any conflict between the provisions of the Plan and the
provisions of this Agreement, the provisions of this Agreement shall control
with respect to the rights, duties and responsibilities of the Trustee, and in
all other instances the Plan shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
FMC TECHNOLOGIES, INC.
Attest: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------ ----------------------
Assistant General Counsel Vice President - Human Resources
FIDELITY MANAGEMENT TRUST
COMPANY
Attest: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxxx Xxxxxx
------------------- ------------------
Assistant Clerk Vice President
31
Schedule "A"
RECORDKEEPING AND ADMINISTRATIVE SERVICES
-----------------------------------------
* The Trustee will provide only the recordkeeping and administrative services
set forth on this Schedule "A" and no others.
Administration
--------------
* Establishment and maintenance of Participant account and election percentages.
* Maintenance of the following Plan investment options:
- Fidelity Puritan Fund
- Fidelity Magellan Fund
- Fidelity Capital & Income Fund
- Fidelity Blue Chip Growth Fund
- Fidelity Diversified International Fund
- Fidelity Freedom Income Fund
- Fidelity Freedom 2000 Fund
- Fidelity Freedom 2010 Fund
- Fidelity Freedom 2020 Fund
- Fidelity Freedom 2030 Fund
- Fidelity Freedom 2040 Fund
- Fidelity Retirement Government Money Market Portfolio
- Fidelity Spartan U.S. Equity Index Fund
- Fidelity U.S. Bond Index Fund
- PIMCO Total Return Fund (Institutional Shares)
- Sequoia Fund, Inc.
- Clipper Fund
- Mutual Qualified Fund (Class Z)
- MAS Mid-Cap Growth Fund (Institutional Class)
- FMC Corporation Stock Fund (defined herein as "FMC Stock Fund") (frozen
to contributions and exchanges in as soon as administratively feasible
after Spin-Off Date)
- FMC Technologies, Inc. Stock Fund (defined herein as "FMC Technologies
Stock Fund")
* Maintenance of the following money classifications:
- Basic
- Supplemental
- Co Match-Deferred Comp.
- Basic pre-tax
- Supplemental pre-tax
- Company Match
- Supplemental Base Xxx. (class year accounting)
- Supplemental Bonus (class year accounting)
Processing
----------
* Processing of Mutual Fund trades and Sponsor Stock.
* Maintain and process changes to Participants' prospective investment mix
elections.
* Process exchanges between investment options on a daily basis.
32
Schedule "A" (continued)
---------
* Provide monthly processing consolidated payroll contribution data via a
consolidated magnetic tape.
* Provide monthly reconciliation and processing of Participant withdrawal
requests as approved and directed by the Sponsor.
Other
-----
* Prepare, reconcile and deliver a monthly Trial Balance Report presenting
all money classes and investments. This report is based on the market value
as of the last business day of the month. The report will be delivered not
later than thirty (30) days after the end of each month in the absence of
unusual circumstances.
* Prepare, reconcile and deliver a Quarterly Administrative Report presenting
both on a Participant and a total plan basis all money classes, investment
positions and a summary of all activity of the Participant and plan as of
the last business day of the quarter. The report will be delivered not
later than thirty (30) days after the end of each quarter in the absence of
unusual circumstances.
* Provide such other reports as mutually agreed upon by the parties.
* Provide Participants with the opportunity to generate electronic statements
via NetBenefits for activity during the requested time period. Upon
Participant request, Fidelity will provide paper statements via first class
mail.
* Provide monthly trial balance.
* Prepare and mail to the Participant, a confirmation of the transactions
exchanges and changes to investment mix elections within five (5) business
days of the Participants instructions.
* Provide access to Plan Sponsor Webstation (PSW). PSW is a graphical,
Windows-based application that provides current Plan and Participant-level
information, including indicative data, account balances, activity and
history.
* Provide Mutual Fund tax reporting (Forms 1099 Div. and 1099-B) to the Sponsor.
* Provide federal and state tax reporting and withholding on benefit payments
made to Participants and beneficiaries in accordance with Section 4 of this
Agreement.
Communication Services.
----------------------
* Provide employee communications describing available investment options,
including multimedia informational materials and group presentations.
* Fidelity PortfolioPlanner (SM), an internet-based educational service for
Participants that generates target asset allocations and model portfolios
customized to investment options in the Plan(s) based upon methodology
provided by Strategic Advisers, Inc., an affiliate of the Trustee. The
Sponsor acknowledges that it has received the ADV Part II for Strategic
Advisers, Inc. more than 48 hours prior to executing the Trust.
33
Schedule "B"
Fees
----
------------------------------------ -------------------------------------------------------------------
Annual Participant Fee: $25.00 per participant billed and paid by the Sponsor to
Trustee quarterly. This fee will be imposed pro rata for
each calendar quarter or any part thereof, that it remains
necessary to keep a participant's account(s) as part of the
Plan's records, e.g. vested, deferred, forfeiture and
terminated Participants who must remain on file through
calendar year-end for reporting purposes.
------------------------------------ -------------------------------------------------------------------
------------------------------------ -------------------------------------------------------------------
Plan Sponsor Webstation (PSW) Three User IDs provided free of charge. Additional
IDs available upon request.
------------------------------------- ------------------------------------------------------------------
------------------------------------- ------------------------------------------------------------------
Non-Fidelity Mutual Funds Clipper Fund: .25% service fee*
Sequoia Fund: 0% service fee**
MAS Mid Cap Growth Fund (Administrative Class): .35%
service fee
PIMCO Total Return Fund (Administrative Class): .25%
service fee
Mutual Qualified (Z Class): 0% service fee
All such fees shall be paid directly to Trustee by each Non-
Fidelity Mutual Fund vendor.
*To the extent Clipper has not agreed to this fee schedule, any
resulting loss in service fees to Trustee shall be made up by a
corresponding increase in the Trustee's fees.
**To the extent Sequoia agrees to a fee schedule, any resulting
increase in service fees to Trustee shall be offset by a
corresponding reduction in the Trustee's fees.
------------------------------------ -------------------------------------------------------------------
------------------------------------ -------------------------------------------------------------------
Stock Administration Fee To the extent that assets are invested in the FMC
Technologies Stock Fund and/or the FMC Stock Fund, .10% of
such assets in the Trust payable by the Sponsor to the
Trustee pro rata quarterly on the basis of such assets as of
the calendar quarter's last valuation date, but no less than
$10,000 and no greater than $20,000 for both funds.
------------------------------------ -------------------------------------------------------------------
------------------------------------ -------------------------------------------------------------------
Other Fees Separate charges for extraordinary expenses resulting from
large numbers of simultaneous manual transactions; from
errors not caused by Fidelity; reports not contemplated in
this Agreement and extraordinary expenses resulting from
Sponsor's corporate actions. The Administrator may provide
the Trustee with written direction to deduct administrative
fees from the Trust.
All Communications will be fee for service, other than Stages
and postage for literature fulfillment and quarterly statements.
------------------------------------ -------------------------------------------------------------------
34
Schedule "C"
AUTHORIZED SIGNERS (ADMINISTRATOR)
[FMC Technologies, Inc. Letterhead]
September 28, 2001
Xx. Xxxxxxx Xxxx
Fidelity Investments Institutional Operations Company
00 Xxxxxxxxxx Xxxxxx, XX0X
Xxxxxx, Xxxxxxxxxxxxx 00000
FMC Technologies, Inc. Nonqualified Savings and Investment Plan
---------------------------------------------------------------
Dear Xx. Xxxx:
This letter is sent to you in accordance with Section 8(b) of the Trust
Agreement, dated as of September 28, 2001, between FMC Technologies, Inc. and
Fidelity Management Trust Company. We hereby designate Xxxxx X. Xxxxxxxxxxx,
Xxxxxxxxx X. Xxxxxxx, and Xxxxxxx X. Xxxxxx, as the individuals who may provide
directions upon which Fidelity Management Trust Company shall be fully protected
in relying. Only one such individual need provide any direction. The signature
of each designated individual is set forth below and certified to be such.
You may rely upon each designation and certification set forth in this
letter until we deliver to you written notice of the termination of authority of
a designated individual.
Very truly yours,
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------
By: Xxxxxxx X. Xxxxxx
Secretary, Compensation and
Organization Committee of the Board of
Directors
/s/ Xxxxx X. Xxxxxxxxxxx
-------------------------
Xxxxx X. Xxxxxxxxxxx
/s/ Xxxxxxxxx X. Xxxxxxx
-------------------------
Xxxxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxx
-------------------------
Xxxxxxx X. Xxxxxx
35
Schedule "D"
OPERATIONAL GUIDELINES FOR NON-FIDELITY MUTUAL FUNDS
----------------------------------------------------
Pricing
-------
By 7:00 p.m. Eastern Time ("ET) each Business Day, the Non-Fidelity Mutual Fund
Vendor (Fund Vendor) will input the following information ("Price Information")
into the Fidelity Participant Recordkeeping System ("FPRS") via the remote
access price screen that FIIOC, an affiliate of the Trustee, has provided to the
Fund Vendor: (1) the net asset value for each Fund at the Close of Trading, (2)
the change in each Fund's net asset value from the Close of Trading on the prior
Business Day, and (3) in the case of an income fund or funds, the daily accrual
for interest rate factor ("mil rate"). FIIOC must receive Price Information each
Business Day (a "Business Day" is any day the New York Stock Exchange is open).
If on any Business Day the Fund Vendor does not provide such Price Information
to FIIOC, FIIOC shall pend all associated transaction activity in the FPRS until
the relevant Price Information is made available by Fund Vendor.
Trade Activity and Wire Transfers
---------------------------------
By 7:00 a.m. ET each Business Day following Trade Date ("Trade Date Plus One"),
----
FIIOC will provide, via facsimile, to the Fund Vendor a consolidated report of
net purchase or net redemption activity that occurred in each of the Funds up to
4:00 p.m. ET on the prior Business Day. The report will reflect the dollar
amount of assets and shares to be invested or withdrawn for each Fund. FIIOC
will transmit this report to the Fund Vendor each Business Day, regardless of
processing activity. In the event that data contained in the 7:00 a.m. ET
facsimile transmission represents estimated trade activity, FIIOC shall provide
a final facsimile to the Fund Vendor by no later than 9:00 a.m. ET. Any
resulting adjustments shall be processed by the Fund Vendor at the net asset
value for the prior Business Day.
The Fund Vendor shall send via regular mail to FIIOC transaction confirms for
all daily activity in each of the Funds. The Fund Vendor shall also send via
regular mail to FIIOC, but no later than the fifth Business Day following
calendar month close, a monthly statement for each Fund. FIIOC agrees to notify
the Fund Vendor of any balance discrepancies within twenty (20) Business Days of
receipt of the monthly statement.
For purposes of wire transfers, FIIOC shall transmit a daily wire for aggregate
purchase activity and the Fund Vendor shall transmit a daily wire for aggregate
redemption activity, in each case including all activity across all Funds
occurring on the same day.
Prospectus Delivery
-------------------
FIIOC shall be responsible for the timely delivery of Fund prospectuses and
periodic Fund reports to Plan Participants, and shall retain the services of a
third-party vendor to handle such mailings. The Fund Vendor shall be responsible
for all materials and production costs, and hereby agrees to provide Fund
prospectuses and periodic Fund reports to the third-party vendor selected by
FIIOC. The Fund Vendor shall bear the costs of mailing annual Fund reports to
Plan Participants. FIIOC shall bear the costs of mailing prospectuses to Plan
Participants.
36
Schedule "D"(continued)
-----------
Proxies
-------
The Fund Vendor shall be responsible for all costs associated with the
production of proxy materials. FIIOC shall retain the services of a third-party
vendor to handle proxy solicitation mailings and vote tabulation. Expenses
associated with such services shall be billed directly the Fund Vendor by the
third-party vendor.
Participant Communications
--------------------------
The Fund Vendor shall provide internally prepared fund descriptive information
approved by the Funds' legal counsel for use by FIIOC in its written Participant
communication materials. FIIOC shall utilize historical performance data
obtained from third-party vendors (currently Morningstar, Inc., FACTSET Research
Systems and Lipper Analytical Services) in telephone conversations with Plan
Participants and in quarterly Participant statements. The Sponsor hereby
consents to FIIOC's use of such materials and acknowledges that FIIOC is not
responsible for the accuracy of third-party information. FIIOC shall seek the
approval of the Fund Vendor prior to retaining any other third-party vendor to
render such data or materials under this Agreement.
Compensation
------------
FIIOC shall be entitled to fees as set forth in a separate agreement with the
Fund Vendor.
Indemnification
---------------
The Fund Vendor shall be responsible for compensating Participants and/or FIIOC
in the event that losses occur as a result of (1) the Fund Vendor's failure to
provide FIIOC with Price Information or (2) providing FIIOC with incorrect Price
Information.
37
Schedule "E"
EXCHANGE GUIDELINES
-------------------
The following exchange procedures are currently employed by FIIOC.
Exchange hours, via a Fidelity Participant service representative, are 8:30 a.m.
(ET) to 12:00 midnight (ET) on each Business Day.
Exchanges via the Internet may be made virtually 24 hours a day.
Exchanges via VRS may be made virtually 24 hours a day.
FIIOC reserves the right to change these Exchange Guidelines at its discretion.
Note: The NYSE's normal closing time is 4:00 p.m. (ET); in the event the NYSE
alters its closing time, all references below to 4:00 p.m. (ET) shall mean the
NYSE closing time as altered.
Mutual Funds
------------
Exchanges Between Mutual Funds
------------------------------
Participants may call on any business day to exchange between the Mutual
Funds. If the request is confirmed before 4:00 p.m. (ET), it will receive
that day's trade date. Requests confirmed after 4:00 p.m. (ET) will be
processed on a next business day basis.
FMC Stock Fund
--------------
In accordance with Schedule "F", the following rules will govern exchanges:
I. Exchanges From Mutual Funds to FMC Stock Fund
---------------------------------------------
Prior to the Spin-Off Date, Participants may contact Fidelity on any day
to exchange from Mutual Funds into the FMC Stock Fund. If the request is
confirmed before the close of the market (generally 4:00 p.m. ET) on a
Business Day, it will receive that day's trade date. Requests confirmed
after the close of the market on a business day (or on any day other than
a business day) will be processed on a next Business Day Basis. From and
after the Spin-Off Date, exchanges into the FMC Stock Fund are prohibited.
II. Exchanges From FMC Stock Fund to Mutual Funds
---------------------------------------------
Participants may contact Fidelity on any day to exchange from the FMC
Stock Fund into a Mutual Fund. If Fidelity receives the request before the
close of the market (generally 4:00 p.m. ET) on any Business Day and
Available Liquidity is sufficient to honor the trade after Specified
Hierarchy rules are applied, it will receive that day's trade date.
Requests received by Fidelity
38
Schedule "E"(continued)
-----------
after the close of the market on any Business Day (or on any day other
than a Business Day) will be processed on a next Business Day basis,
subject to Available Liquidity for such day after application of Specified
Hierarchy rules. If Available Liquidity on any day is insufficient to
honor the trade after application of Specified Hierarchy rules, it will be
suspended until Available Liquidity is sufficient, after application of
Specified Hierarchy rules, to honor such trade, and it will receive the
trade date and Closing Price of the date on which it was processed.
FMC Technologies, Inc. Stock Fund
---------------------------------
In accordance with Schedule "G", the following rules will govern exchanges:
I. Exchanges From Mutual Funds to FMC Technologies Stock Fund
----------------------------------------------------------
Participants may contact Fidelity on any day to exchange from Mutual
Funds, or the stable value fund into the FMC Technologies Stock Fund. If
the request is confirmed before the close of the market (generally 4:00
p.m. ET) on a Business Day, it will receive that day's trade date.
Requests confirmed after the close of the market on a business day (or on
any day other than a business day) will be processed on a next Business
Day Basis.
II. Exchanges From FMC Technologies Stock Fund to Mutual Funds
----------------------------------------------------------
Participants may contact Fidelity on any day to exchange from the FMC
Technologies into a Mutual Fund. If Fidelity receives the request before
the close of the market (generally 4:00 p.m. ET) on any Business Day and
Available Liquidity is sufficient to honor the trade after Specified
Hierarchy rules are applied, it will receive that day's trade date.
Requests received by Fidelity after the close of the market on any
Business Day (or on any day other than a Business Day) will be processed
on a next Business Day basis, subject to Available Liquidity for such day
after application of Specified Hierarchy rules. If Available Liquidity on
any day is insufficient to honor the trade after application of Specified
Hierarchy rules, it will be suspended until Available Liquidity is
sufficient, after application of Specified Hierarchy rules, to honor such
trade, and it will receive the trade date and Closing Price of the date on
which it was processed.
39
Schedule "F"
SPECIFIED HEIRARCHY - AVAILABLE LIQUIDITY PROCEDURES FOR FMC STOCK FUND
-----------------------------------------------------------------------
The following procedures shall govern sales of units of the FMC Stock Fund
requested for a day on which Available Liquidity is insufficient:
1. Withdrawals and distributions will be aggregated and placed first in the
hierarchy. If Available Liquidity is sufficient for the aggregate of such
transactions, all such withdrawals and distributions will be honored. If
Available Liquidity is not sufficient for the aggregate of such
transactions, then such transactions will be suspended, and no
transactions requiring a sale of FMC Stock Fund units shall be honored for
that day.
2. If Available Liquidity has not been exhausted by the aggregate of
withdrawals and distributions, then all remaining transactions involving a
sale of units in the FMC Stock Fund (exchanges out) shall be grouped on
the basis of when such requests were received, in accordance with standard
procedures maintained by the Trustee for such grouping as they may be
amended from time to time. To the extent of Available Liquidity, groups of
exchanges out of the FMC Stock Fund shall be honored, by group, on a
"first in, first out" basis. If Available Liquidity is insufficient to
honor all exchanges out within a group, then none of the exchanges out in
such group shall be honored, and no exchanges out in a later group shall
be honored.
3. Transactions not honored on a particular day due to insufficient Available
Liquidity shall be honored, using the hierarchy specified above, on the
next business day on which there is Available Liquidity.
40
Schedule "G"
SPECIFIED HEIRARCHY - AVAILABLE LIQUIDITY PROCEDURES FOR FMC
-----------------------------------------------------------
TECHNOLOGIES STOCK FUND
-----------------------
The following procedures shall govern sales of units of the FMC Technologies
Stock Fund requested for a day on which Available Liquidity is insufficient:
1. Withdrawals and distributions will be aggregated and placed first in the
hierarchy. If Available Liquidity is sufficient for the aggregate of such
transactions, all such withdrawals and distributions will be honored. If
Available Liquidity is not sufficient for the aggregate of such
transactions, then such transactions will be suspended, and no
transactions requiring a sale of FMC Technologies Stock Fund units shall
be honored for that day.
2. If Available Liquidity has not been exhausted by the aggregate of
withdrawals and distributions, then all remaining transactions involving a
sale of units in the FMC Technologies Stock Fund (exchanges out) shall be
grouped on the basis of when such requests were received, in accordance
with standard procedures maintained by the Trustee for such grouping as
they may be amended from time to time. To the extent of Available
Liquidity, groups of exchanges out of the FMC Technologies Stock Fund
shall be honored, by group, on a "first in, first out" basis. If Available
Liquidity is insufficient to honor all exchanges out within a group, then
none of the exchanges out in such group shall be honored, and no exchanges
out in a later group shall be honored.
3. Transactions not honored on a particular day due to insufficient Available
Liquidity shall be honored, using the hierarchy specified above, on the
next business day on which there is Available Liquidity.
41
Schedule "H"
INVESTMENT DIRECTION
[FMC Technologies, Inc. Letterhead]
Xxxx X. Xxxxxx, Esq.
Vice President and Pension Counsel
Fidelity Investments
00 Xxxxxxxxxx Xxxxxx, X0X
Xxxxxx, XX 00000
Re: Investment Instructions for FMC Technologies, Inc.
Nonqualified Savings and Investment Plan
Dear Xx. Xxxxxx:
The Participants under the FMC Technologies, Inc. Nonqualified Savings And
Investment Plan ("Plan") have the right to direct the investment of their Plan
account in hypothetical investment options, which are currently based on the FMC
Corporation Stock Fund, the FMC Technologies Stock Fund, a number of registered
investment companies advised by Fidelity Management & Research Company
("Fidelity Mutual Funds") and certain investment companies not advised by
Fidelity Management & Research Company ("Non-Fidelity Mutual Funds"). Fidelity
Management Trust Company has agreed pursuant to a Trust Agreement with FMC
Technologies, Inc. dated September 28, 2001, to receive such Participant
directions.
The Sponsor hereby directs the Trustee to invest funds contributed to the
rabbi trust in a manner which corresponds directly to elections made by
Participants under the Plan.
This procedure will remain in effect until a revised instruction letter is
provided by the Sponsor and accepted by the Trustee.
Sincerely,
/s/ Xxxxxxx X. Xxxxxx
--------------------------------
Secretary, Compensation and
Organization Committee of the Board of
Directors
42
