Exhibit 2.11
EMPLOYEE MATTERS AGREEMENT
BETWEEN
MILLIPORE CORPORATION
AND
MILLIPORE MICROELECTRONICS, INC.
EFFECTIVE AS OF
MARCH 31, 2001
TABLE OF CONTENTS
ARTICLE I DEFINITIONS...................................... 1
1.1 "Agreement"........................................... 1
1.2 "Benefits Committee".................................. 1
1.3 "COBRA"............................................... 1
1.4 "Code"................................................ 1
1.5 "Deferred Compensation Plan,"......................... 1
1.6 "Distribution"........................................ 1
1.7 "Distribution Date"................................... 1
1.8 "ERISA"............................................... 1
1.9 "FMLA"................................................ 2
1.10 "Foreign Plan,"....................................... 2
1.11 "401(k) Plan,"........................................ 2
1.12 "Fringe Benefit Plans,"............................... 2
1.13 "Health and Welfare Plans,"........................... 2
1.14 "Insurance Plans"..................................... 2
1.15 "IPO"................................................. 2
1.16 "IPO Closing Date".................................... 2
1.17 "IPO Registration Statement".......................... 2
1.18 "Material Feature".................................... 2
1.19 "Millipore Employee".................................. 3
1.20 "Millipore Participation Plan"........................ 3
1.21 "Millipore Retirement Plan"........................... 3
1.22 "Millipore Stock Value"............................... 3
1.23 "MMI Business"........................................ 3
1.24 "MMI Employee"........................................ 3
1.25 "MMI Stock Value"..................................... 3
1.26 "Participating Company"............................... 4
1.27 "Person".............................................. 4
1.28 "Plan"................................................ 4
1.29 "Post-Distribution Period"............................ 4
1.30 "QDRO"................................................ 4
1.31 "QMCSO"............................................... 4
1.32 "Rabbi Trust,"........................................ 4
1.33 "Separation".......................................... 4
1.34 "Separation Date"..................................... 4
1.35 "Stock Plan,"......................................... 5
ARTICLE II GENERAL PRINCIPLES.............................. 5
2.1 ASSUMPTION OF MMI LIABILITIES......................... 5
2.2 MMI'S PARTICIPATION IN MILLIPORE PLANS................ 5
2.3 ESTABLISHMENT OF MMI PLANS............................ 6
2.4 TERMS OF PARTICIPATION BY MMI EMPLOYEES IN MMI PLANS.. 6
2.5 BENEFITS COMMITTEE.................................... 7
2.6 FOREIGN PLANS......................................... 7
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2.7 CERTAIN TRANSFERS OF EMPLOYEES BETWEEN MILLIPORE AND MMI 7
ARTICLE III 401(k) PLAN.................................... 8
3.1 401(k) PLAN............................................ 8
3.2 TRANSFER OF ACCOUNTS FROM MILLIPORE 401(k) PLAN........ 8
ARTICLE IV NON-QUALIFIED PLANS............................. 8
4.1 DEFERRED COMPENSATION PLANS............................ 8
ARTICLE V HEALTH AND INSURANCE PLANS....................... 9
5.1 HEALTH PLANS........................................... 9
5.2 INSURANCE PLANS........................................ 10
5.3 VENDOR ARRANGEMENTS.................................... 11
ARTICLE VI EQUITY AND OTHER COMPENSATION................... 11
6.1 CASH PROFIT SHARING PLAN............................... 11
6.2 MANAGEMENT INCENTIVE PLAN.............................. 12
6.3 MILLIPORE OPTIONS...................................... 12
6.4 MILLIPORE RESTRICTED STOCK............................. 13
ARTICLE VII FRINGE AND OTHER BENEFITS...................... 13
7.1 FRINGE BENEFITS:....................................... 13
7.2 OTHER BENEFIT PLANS:................................... 14
ARTICLE VIII MILLIPORE PARTICIPATION AND RETIREMENT PLANS.. 14
8.1 MILLIPORE PARTICIPATION PLAN........................... 14
8.2 MILLIPORE RETIREMENT PLAN.............................. 15
8.3 NO TRANSFER OF ASSETS TO MMI SAVINGS AND INVESTMENT
PLAN................................................... 15
8.4 MAKE-UP BENEFITS FOR CERTAIN EMPLOYEES................. 15
ARTICLE IX ADMINISTRATIVE PROVISIONS....................... 15
9.1 TRANSITIONAL SERVICES AGREEMENT........................ 15
9.2 PAYMENT OF LIABILITIES, PLAN EXPENSES AND RELATED
MATTERS................................................ 16
9.3 TRANSITIONAL STAFFING SERVICES......................... 16
9.4 SHARING OF PARTICIPANT INFORMATION..................... 16
9.5 REPORTING AND DISCLOSURE COMMUNICATIONS TO
PARTICIPANTS........................................... 16
9.6 AUDITS REGARDING VENDOR CONTRACTS...................... 17
9.7 EMPLOYEE IDENTIFICATION NUMBERS........................ 17
9.8 BENEFICIARY DESIGNATIONS............................... 17
9.9 REQUESTS FOR REGULATORY OPINIONS....................... 17
9.10 FIDUCIARY MATTERS...................................... 17
9.11 CONSENT OF THIRD PARTIES............................... 18
9.12 MILLIPORE INTRANET..................................... 18
ARTICLE X EMPLOYMENT-RELATED MATTERS....................... 18
10.1 TERMS OF MMI EMPLOYMENT................................ 18
10.2 HR DATA SUPPORT SYSTEMS................................ 18
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10.3 EMPLOYMENT OF EMPLOYEES WITH U.S. WORK VISAS.......... 18
10.4 CONFIDENTIALITY AND PROPRIETARY INFORMATION........... 18
10.5 PERSONNEL RECORDS..................................... 19
10.6 MEDICAL RECORDS....................................... 19
10.7 UNEMPLOYMENT INSURANCE PROGRAM........................ 19
10.8 NON-TERMINATION OF EMPLOYMENT; NO THIRD-PARTY
BENEFICIARIES......................................... 19
10.9 EMPLOYMENT LITIGATION................................. 19
ARTICLE XI GENERAL PROVISIONS.............................. 20
11.1 EFFECT IF SEPARATION, IPO AND/OR DISTRIBUTION
DOES NOT OCCUR........................................ 20
11.2 RELATIONSHIP OF PARTIES............................... 20
11.3 AFFILIATES............................................ 20
11.4 GOVERNING LAW......................................... 20
11.5 ASSIGNMENT............................................ 20
11.6 SEVERABILITY.......................................... 20
11.7 INTERPRETATION........................................ 21
11.8 AMENDMENT............................................. 21
11.9 TERMINATION........................................... 21
11.10 CONFLICT.............................................. 21
11.11 COUNTERPARTS.......................................... 21
Schedule 5.1: Millipore Health Plans...........
Schedule 5.2: Millipore Insurance Plans........
Schedule 7.1: Millipore Fringe Benefit Plans...
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EMPLOYEE MATTERS AGREEMENT
This EMPLOYEE MATTERS AGREEMENT is entered into on __________, 2001,
between Millipore Corporation ("Millipore"), a Massachusetts corporation, and
Millipore MicroElectronics, Inc. ("MMI"), a Delaware corporation.
WHEREAS, Millipore and MMI have agreed to enter into this Agreement to
allocate between them assets, liabilities and responsibilities with respect to
certain employee compensation, benefit plans, programs and arrangements, and
certain employment matters;
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 "Agreement" means this Employee Matters Agreement, including all the
Schedules hereto, and all amendments made hereto from time to time.
1.2 "Benefits Committee" means the benefits committee established,
implemented and operated pursuant to Section 2.5.
1.3 "COBRA" means the continuation coverage requirements for "group
health plans" under Title X of the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended from time to time, and as codified in Code Section 4980B
and ERISA Sections 601 through 608.
1.4 "Code" means the Internal Revenue Code of 1986, as amended from time
to time.
1.5 "Deferred Compensation Plan," when immediately preceded by
"Millipore," means either the Millipore Corporation 2000 Deferred Compensation
Plan for Senior Management ("Millipore Deferred Compensation Plan") or the
Supplemental Savings and Retirement Plan for Salaried Employees of Millipore
Corporation ("Millipore SERP"). When immediately preceded by "MMI," "Deferred
Compensation Plan" means the deferred compensation plan to be established by MMI
pursuant to Article IV.
1.6 "Distribution" means Millipore's pro rata distribution to the holders
of its common stock, $1.00 par value, several months following the IPO, of all
the shares of MMI common stock owned by Millipore.
1.7 "Distribution Date" means the date that the Distribution is
effective.
1.8 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
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1.9 "FMLA" means the Family and Medical Leave Act of 1993, as amended
from time to time.
1.10 "Foreign Plan," when immediately preceded by "Millipore," means a
Plan maintained by Millipore for the benefit of its employees outside the U.S.
When immediately preceded by "MMI," "Foreign Plan" means a Plan to be
established by MMI for the benefit of its employees outside the U.S.
1.11 "401(k) Plan," when immediately preceded by "Millipore," means the
401(k) portion of the Millipore Participation Plan. When immediately preceded
by "MMI," "401(k) Plan" means the MMI Savings and Investment Plan to be
established by MMI pursuant to Article III.
1.12 "Fringe Benefit Plans," when immediately preceded by "Millipore,"
means the Millipore employee assistance program, educational assistance program,
leave of absence program and other fringe benefit plans, programs and
arrangements, offered from time to time under the personnel policies and
practices of Millipore and sponsored and maintained by Millipore (as set forth
in Article VII and Schedule 7.1). When immediately preceded by "MMI," "Fringe
Benefit Plans" means the fringe benefit plans, programs and arrangements to be
established by MMI pursuant to Article VII.
1.13 "Health and Welfare Plans," when immediately preceded by "Millipore,"
means the medical, health maintenance organization ("HMO"), dental, pre-tax
premium payment plans, Section 125 Plan and any similar health and welfare plans
listed on Schedule 5.1 established and maintained by Millipore for the benefit
of eligible employees of Millipore, and such other welfare plans or programs as
may apply to such employees as of the Distribution Date. When immediately
preceded by "MMI," "Health and Welfare Plans" means the MMI Health Plans, the
MMI Section 125 Plan, and the health and welfare plans to be established by MMI
pursuant to Article V.
1.14 "Insurance Plans" when immediately preceded by "Millipore" means the
various insurance plans provided to Millipore employees including accidental
death and dismemberment, business travel accident, long term disability, group
life and workers' compensation insurance plan as set forth in Schedule 5.2.
When immediately preceded by "MMI," "Insurance Plans" means the MMI insurance
plans to established by MMI pursuant to Article V.
1.15 "IPO" means the initial public offering of MMI common stock pursuant
to a registration statement on Form S-1 pursuant to the Securities Act of 1933,
as amended.
1.16 "IPO Closing Date" means the closing of the IPO.
1.17 "IPO Registration Statement" means the registration statement on Form
S-1 pursuant to the Securities Act of 1933 as amended, to be filed with the SEC,
registering the shares of common stock of MMI to be issued in the IPO, together
with all amendments thereto.
1.18 "Material Feature" means any feature of a Plan that could reasonably
be expected to be of material importance, in the aggregate, to the sponsoring
employer or the participants (or their dependents or beneficiaries) of that
Plan, which could include, depending on the type and
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purpose of the particular Plan, the class or classes of employees eligible to
participate in such Plan, the nature, type, form, source, and level of benefits
provided under such Plan, the amount or level of contributions, if any, required
to be made by participants (or their dependents or beneficiaries) to such Plan,
and the costs and expenses incurred by the sponsoring employer or Participating
Companies for implementing and/or maintaining such Plan.
1.19 "Millipore Employee" means an individual who, on the Separation Date,
is: (a) either actively employed by, or on leave of absence from, Millipore:
(b) a former employee of Millipore and who, on the Separation Date, is not a MMI
Employee; or (c) an employee or group of employees designated as Millipore
Employees by Millipore and MMI.
1.20 "Millipore Participation Plan" means the Millipore Corporation
Employees' Participation and Savings Plan, as in effect from time to time.
1.21 "Millipore Retirement Plan" means the Retirement Plan for Employees
of Millipore Corporation, as in effect from time to time.
1.22 "Millipore Stock Value" means the closing per-share price of
Millipore common stock as listed on the New York Stock Exchange on the last
trading day before the Distribution.
1.23 "MMI Business" means the MicroElectronics business and related
businesses and operation as described in the IPO Registration Statement.
1.24 "MMI Employee" means any individual who is: (a) either actively
employed by, or on leave of absence from, MMI on or at any time after the
Separation Date; (b) either actively employed by, or on leave of absence from,
Millipore as either part of a work group or organization, or common support
function that, at any time after the Separation Date and before the Distribution
Date, moves to the employ of MMI from the employ of Millipore; (c) any other
employee or group of employees designated as MMI Employees (as of the specified
date) by Millipore and MMI by mutual agreement; or (d) an alternate payee under
a QDRO, alternate recipient under a QMCSO, beneficiary, covered dependent, or
qualified beneficiary (as such term is defined under COBRA), in each case, of an
employee or former employee, described in (a) through (c) with respect to that
employee's or former employee's benefit under the applicable Plan(s). Unless
specified otherwise in this Agreement, such an alternate payee, alternate
recipient, beneficiary, covered dependent, or qualified beneficiary shall not
otherwise be considered a MMI Employee with respect to any benefits he or she
accrues or has accrued under any applicable Plan(s), unless he or she is a MMI
Employee by virtue of (a) through (c).
1.25 "MMI Stock Value" means the (i) opening per-share price of MMI common
stock as listed on the principal exchange on which the shares of the common
stock are then trading on the first trading day after the Distribution, or if
shares are not traded on such Date, then on the next preceding trading day
during which a sale occurred; (ii) if such common stock is not traded on an
exchange but is quoted on Nasdaq or a successor quotation system, (1) the last
sales price (if the common stock is then listed as a National Market Issue under
the NASD National Market System), or (2) the mean between the closing
representative bid and asked prices (in all other cases) for the common stock on
such date as reported by Nasdaq or such successor quotation system; (iii) if
such common stock is not publicly traded on an exchange and not quoted on
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Nasdaq or a successor quotation system, the mean between the closing bid and
asked prices for the common stock on such date as determined in good faith by
the Board of MMI; or (iv) the common stock is not publicly traded, the fair
market value established by the Board of MMI.
1.26 "Participating Company" means: (a) Millipore; (b) any Person (other
than an individual) that Millipore has approved for participation in, a Plan
sponsored by Millipore; and (c) any Person (other than an individual) which, by
the terms of such Plan, participates in such Plan or any employees of which, by
the terms of such Plan, participate in or are covered by such Plan.
1.27 "Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, and a governmental entity or any
department, agency or political subdivision thereof.
1.28 "Plan" means any plan, policy, program, payroll practice,
arrangement, contract, trust, insurance policy, or any agreement or funding
vehicle providing compensation or benefits to employees, former employees,
directors or consultants of Millipore or MMI.
1.29 "Post-Distribution Period" means, for each designated Plan, the
period beginning as of the Distribution Date and ending on the date that MMI is
no longer using Millipore benefit delivery and administrative services with
respect to the Plan.
1.30 "QDRO" means a domestic relations order which qualifies under Code
Section 414(p) and ERISA Section 206(d) and which creates or recognizes an
alternate payee's right to, or assigns to an alternate payee, all or a portion
of the benefits payable to a participant under the Millipore Participation Plan
or the Millipore Retirement Plan.
1.31 "QMCSO" means a medical child support order which qualifies under
ERISA Section 609(a) and which creates or recognizes the existence of an
alternate recipient's right to, or assigns to an alternate recipient the right
to, receive benefits for which a participant or beneficiary is eligible under
any of the Health Plans.
1.32 "Rabbi Trust," when immediately preceded by "Millipore," means the
grantor trust established for purposes of holding assets under the Millipore
Deferred Compensation Plans. When immediately preceded by "MMI," "Rabbi Trust"
means the grantor trust to be established by MMI pursuant to Section 4.1(a).
1.33 "Separation" means the contribution and transfer from Millipore to
MMI, and MMI's receipt and assumption of, directly or indirectly, substantially
all of the assets and liabilities currently associated with the MMI Business and
the stock, investments or similar interests currently held by Millipore in
subsidiaries and other entities that conduct such business.
1.34 "Separation Date" means the effective date and time of each transfer
of property, assumption of liability, license, undertaking, or agreement in
connection with the Separation which shall, with respect to non-Foreign Plans
and U.S. employees, be close of business, Eastern Standard Time, March 31, 2001
or such other date as may be fixed by the Board of Directors of Millipore.
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1.35 "Stock Plan," when immediately preceded by "Millipore," means any
plan, program, or arrangement, pursuant to which employees and other service
providers hold stock options, Millipore restricted stock (stock that is subject
to transfer restrictions or to employment and/or performance vesting conditions)
or other Millipore equity incentives. When immediately preceded by "MMI,"
"Stock Plan" means plans, programs, or arrangements that are substantially
similar to the Millipore Stock Plans, to be established by MMI pursuant to
Article VI.
ARTICLE II
GENERAL PRINCIPLES
2.1 ASSUMPTION OF MMI LIABILITIES. Except as specified otherwise in this
Agreement or as mutually agreed upon by MMI and Millipore from time to time,
effective as of Separation Date, MMI hereby assumes and agrees to pay, perform,
fulfill and discharge, in accordance with their respective terms, all of the
following: (a) all liabilities of, or relating to, MMI Employees relating to,
arising out of, or resulting from future, present or former employment with the
MMI Business (including liabilities relating to, arising out of, or resulting
from Millipore Plans and MMI Plans, other than any liability for medical
coverage for MMI Employees who terminated service prior to the Separation Date);
(b) all liabilities relating to, arising out of, or resulting from any other
actual or alleged employment relationship with MMI; and (c) all other
liabilities relating to, arising out of, or resulting from obligations,
liabilities and responsibilities expressly assumed or retained by MMI, or a MMI
Plan pursuant to this Agreement. Except as specified otherwise in this
Agreement or as otherwise mutually agreed upon by Millipore and MMI from time to
time, Millipore shall transfer to MMI amounts equal to trust assets, insurance
reserves, and other related assets as consistent with the applicable Plan
transition that relates to, arises out of, or results from MMI's pro rata
interest in each Millipore Plan, to the extent described herein.
2.2 MMI'S PARTICIPATION IN MILLIPORE PLANS.
(a) PARTICIPATION IN MILLIPORE PLANS. Except as specified otherwise
in this Agreement or as Millipore and MMI may mutually agree, MMI Employees
shall, until the Separation Date, continue to participate in the Millipore
Participation Plan (including the 401(k) Plan) and the Millipore Retirement
Plan, as provided in Article III, and in such other Millipore Plans as
provided in Articles III through VII.
(b) MILLIPORE'S GENERAL OBLIGATIONS AS PLAN SPONSOR. To the extent
that MMI is a Participating Company in any Millipore Plan, Millipore shall
continue to administer, or cause to be administered, in accordance with its
terms and applicable law, such Millipore Plan, and shall have the sole and
absolute discretion and authority to interpret the Millipore Plan, as set
forth therein. Millipore shall not amend any Material Feature of any
Millipore Plan in which MMI is a Participating Company, except to the
extent: (i) such amendment would not materially affect any coverage or
benefits solely with respect to MMI Employees under such Plan; or (ii) such
amendment is necessary or appropriate to comply with applicable law.
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(c) MMI'S GENERAL OBLIGATION AS PARTICIPATING COMPANY. MMI shall
perform, with respect to its participation in the Millipore Plans, the
duties of a Participating Company as set forth in each such Plan or any
procedures adopted pursuant thereto, including (without limitation): (i)
assistance in the administration of claims, to the extent requested by the
claims administrator of the applicable Millipore Plan; (ii) full
cooperation with Millipore Plan auditors, benefit personnel and benefit
vendors; (iii) preservation of the confidentiality of all financial
arrangements Millipore has or may have with any vendors, claims
administrators, trustees, service providers or any other entity or
individual with whom Millipore has entered into an agreement relating to
the Millipore Plans; and (iv) preservation of the confidentiality of
participant information (including, without limitation, health information
in relation to FMLA leaves) to the extent not specified otherwise in this
Agreement.
(d) TERMINATION OF PARTICIPATING COMPANY STATUS. Except as
otherwise may be mutually agreed upon by Millipore and MMI, effective as of
the Distribution Date or such other date as MMI establishes a corresponding
Plan (as specified in this Agreement), MMI shall automatically cease to be
a Participating Company in the corresponding Millipore Plan.
2.3 ESTABLISHMENT OF MMI PLANS.
Except as otherwise provided here, MMI shall adopt certain Plans, as
described in Articles III through VII, as of the Separation Date or such other
date(s) as set out herein or as Millipore and MMI may mutually agree. Except as
specified otherwise in this Agreement, nothing in this Agreement shall preclude
MMI at any time after the Distribution Date, from amending, merging, modifying,
terminating, eliminating, reducing, or otherwise altering in any respect any MMI
Plan, any benefit under any MMI Plan or any trust, insurance policy or funding
vehicle related to any MMI Plans, or any employment or other service arrangement
with the MMI Employees or vendors (to the extent permitted by law).
2.4 TERMS OF PARTICIPATION BY MMI EMPLOYEES IN MMI PLANS.
(a) NON-DUPLICATION OF BENEFITS. Except as specified otherwise in
the Agreement, as of the Separation Date, or other later date that applies
to the particular MMI Plan established thereafter, the MMI Plans shall be,
with respect to MMI Employees, in all respects the successors in interest
to, and shall not provide benefits that duplicate benefits provided by, the
corresponding Millipore Plans. Millipore and MMI shall agree on methods and
procedures, including amending the respective Plan documents, to prevent
MMI Employees from receiving duplicate benefits from the Millipore Plans
and the MMI Plans.
(b) SERVICE CREDIT. Except as specified otherwise in this
Agreement, with respect to MMI Employees, each MMI Plan shall provide that
all service, all compensation and all other benefit-affecting
determinations that, as of the Separation Date, were recognized under the
corresponding Millipore Plan shall, as of the Separation Date, receive full
recognition and credit and be taken into account under such MMI Plan to the
same extent as if such items occurred under such MMI Plan, except to the
extent
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that duplication of benefits would result. The service crediting provisions
shall be subject to any respectively applicable "service bridging," "break
in service," "employment date," or "eligibility date" rules under the MMI
Plans and the Millipore Plans.
(c) ASSUMPTION OF LIABILITIES. Except as specified otherwise in
this Agreement (including, without limitation, the exception applicable to
self-insured long-term disability and workers compensation plans), the
provisions of this Agreement for the transfer of assets relating to
Millipore Plans to MMI and/or the appropriate MMI Plans are based upon the
understanding of the parties that MMI and/or the appropriate MMI Plan shall
assume all liabilities of the corresponding Millipore Plan to or relating
to MMI Employees, as provided for herein.
2.5 BENEFITS COMMITTEE. From the date of this Agreement through the later
of the Distribution Date or the end of the Post-Distribution Period, as
applicable, the management of the Plans shall be conducted under the supervision
of the Millipore Vice President, Human Resources, and the MMI Vice President,
Human Resources (or his authorized delegate). Issues that cannot be resolved by
the Benefits Committee shall be decided, at the request of either party, by a
designated representative of the MMI Corporate Executive Committee and a
designated representative of the Millipore Corporate Executive Committee.
2.6 FOREIGN PLANS. MMI and Millipore each intend that the matters, issues
or liabilities relating to, arising out of, or resulting from Foreign Plans and
non-U.S.-related employment matters be handled in a manner that is in compliance
with the requirements of applicable local law and, to the extent permitted by
applicable local law, in a manner consistent with comparable U.S. matters,
issues or liabilities as reflected in this Agreement. Without in any way
limiting the general principle set forth in the preceding sentence, Schedule 2.6
sets forth the manner in which certain existing Millipore Foreign Plans in non-
U.S. jurisdictions shall be handled, effective as of the Separation Date (or
such other date(s)) as Millipore and MMI may mutually agree) consistent with the
provisions of this Section 2.6 or as permitted under applicable local law.
2.7 CERTAIN TRANSFERS OF EMPLOYEES BETWEEN MILLIPORE AND MMI. If any MMI
Employee (who was formerly employed by Millipore) is rehired by Millipore, with
the consent of MMI, within the 24-month period following the Separation Date,
all service of such Employee with, and compensation from, MMI after the
Separation Date shall be counted under all applicable Millipore benefit plans as
if it were service with, and compensation from, Millipore, and to the extent
practicable, such Employee shall be treated as if he had not terminated service
with Millipore. If any Millipore Employee is hired by MMI, with the consent of
Millipore, within the 24-month period following the Separation Date, all service
of such Employee with, and compensation from, Millipore before and after the
Separation Date shall be counted under all applicable MMI benefit plans as if it
were service with, and compensation from, MMI, and to the extent practicable,
such Employee shall be treated as if he had transferred employment to MMI as of
the Separation Date.
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ARTICLE III
401(k) PLAN
3.1 401(k) PLAN. Effective as of the Separation Date (or such other date
as Millipore and MMI may mutually agree), MMI shall establish or cause to be
established a separate plan and trust which are intended to be tax-qualified
under Code Section 401(a) and 401(k), to be exempt from taxation under Code
Section 501(a)(1), and to be known as the MMI Savings and Investment Plan, to
which MMI Employees may make salary reduction contributions and MMI can make
matching contributions and discretionary profit sharing contributions. To the
extent that MMI makes a discretionary profit sharing contribution to the MMI
Savings and Investment Plan for 2001, it shall make such contribution with
respect to compensation of plan participants that was earned from Millipore and
MMI during 2001.
3.2 TRANSFER OF ACCOUNTS FROM MILLIPORE 401(k) PLAN. As soon as
practicable after the Separation Date (or such other date as Millipore and MMI
may mutually agree), Millipore shall cause to be transferred to the MMI Savings
and Investment Plan the accounts in the Millipore 401(k) Plan that are
attributable to MMI Employees. As a result of the transfer of such accounts
from the Millipore 401(k) Plan, the MMI Savings and Investment Plan shall hold
as part of its assets Millipore employer securities. MMI shall assume sole
responsibility for ensuring that the MMI Savings and Investment Plan's company
stock fund, and the Millipore stock held in such fund, are maintained in
compliance with all requirements of the SEC. In addition, effective as of the
Separation Date (or such other date as Millipore and MMI may mutually agree),
Millipore shall cause any participant loans held in the Millipore 401(k) Plan
that are attributable to MMI Employees to be assigned to the Trustee of the MMI
Savings and Investment Plan to enable such MMI Employees to continue to repay
such loans through payroll deduction, and after such assignment such MMI
Employees shall repay such loans to the MMI Savings and Investment Plan only.
ARTICLE IV
NON-QUALIFIED PLANS
4.1 DEFERRED COMPENSATION PLANS.
(a) ESTABLISHMENT OF MMI RABBI TRUST. Effective on or before the
Separation Date (or such other date as Millipore and MMI may mutually
agree), MMI shall establish the MMI Deferred Compensation Plan and the MMI
Rabbi Trust.
(b) ALLOCATION AND ASSUMPTION OF LIABILITIES. As of the date that
MMI establishes the MMI Deferred Compensation Plan, Millipore shall
determine the amount of liabilities under the Millipore Deferred
Compensation Plan and the Millipore SERP, attributable to MMI Employees. As
soon as administratively practicable thereafter, Millipore shall pay to MMI
or to the trustee of the MMI Rabbi Trust, as MMI specified, an amount of
Millipore's assets equal to the liabilities under the Millipore Deferred
Compensation Plan. Coincident with the receipt of such transfer of assets,
MMI shall assume all responsibilities and obligations relating to, arising
out of, or resulting
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from such liabilities under the Millipore Deferred Compensation Plan.
Effective as of the Separation Date, MMI shall also assume all
responsibilities and obligations relating to, arising out of, or resulting
from the Millipore SERP to the extent such liabilities are attributable to
MMI Employees.
(c) PARTICIPATION IN DEFERRED COMPENSATION PLANS. Effective as of
the Separation Date (or such other date as Millipore and MMI may mutually
agree), eligible MMI Employees may commence participation in the MMI
Deferred Compensation Plan. MMI Employees who are currently participating
in the Millipore Deferred Compensation Plans shall continue their
participation in such Plans (according to its terms) to the Separation Date
(or such other date as Millipore and MMI may mutually agree).
ARTICLE V
HEALTH AND INSURANCE PLANS
5.1 HEALTH PLANS.
(a) MMI HEALTH PLANS. As of the Distribution Date (or such other
date(s) and Millipore and MMI may mutually agree), MMI shall establish the
MMI Health Plans similar to the Millipore Health Plans listed on Schedule
5.1 and, correspondingly, MMI shall be solely responsible for the
administration of the MMI Health Plans, including the payment of all
employer-related costs in establishing and maintaining the MMI Health
Plans, and for the collection and remittance of employee premiums, subject
to Section 9.2.
(b) MEDICAL PLANS FROM THE SEPARATION DATE THROUGH THE DISTRIBUTION
DATE. Except as otherwise agreed by Millipore and MMI, for the period
beginning with the Separation Date and ending on the Distribution Date (or
such other period as Millipore and MMI may mutually agree), MMI shall be a
Participating Company in the Millipore Health Plans listed in Schedule 5.1.
Millipore shall administer claims incurred under the Millipore Health Plans
by MMI Employees before the Distribution Date, but only to the extent that
MMI has not, before such date, established and assumed administrative
responsibility for a corresponding Health Plan. Any determination made or
settlements entered into by Millipore with respect to such claims shall be
final and binding. Millipore shall retain financial and administrative
("run-out") liability and all related obligations and responsibilities for
all claims incurred by MMI Employees before December 31, 2001 (or such
other date(s) as Millipore and MMI may mutually agree), including any
claims that were administered by Millipore as of, on, or after December 31,
2001 (or such other date(s) as Millipore and MMI may mutually agree).
Except as set forth in the preceding sentence, MMI shall reimburse
Millipore for any and all direct and indirect costs and expenses associated
with its participation in the Millipore Health Plans, subject to Section
9.2.
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(c) SECTION 125 PLAN. Through the Separation Date (or such other
date as Millipore and MMI may mutually agree), MMI shall remain a
Participating Company in the Millipore Section 125 Plan. The existing
elections for MMI Employees participating in the Millipore Section 125 Plan
shall remain in effect until the Separation Date (or such other date as
Millipore and MMI may mutually agree). Effective on the day after the
Separation Date (or such other date immediately following the date that
MMI's participation in the Millipore Section 125 Plan terminates), MMI
shall establish, or caused to be established, the MMI Section 125 Plan and
MMI shall be solely responsible for the MMI Section 125 Plan. Millipore
will administer, or cause to be administered, the Millipore Section 125
Plan for MMI Employees and the MMI Section 125 Plan through such date as
Millipore and MMI may mutually agree. MMI shall reimburse Millipore for any
and all direct and indirect expenses and costs attributable to MMI
Employees, subject to Section 9.2. Millipore shall transfer to the MMI
Section 125 Plan any flexible spending accounts attributable to MMI
Employees as soon as practicable following the Separation Date.
(d) HCFA. As of January 1, 2002 (or such other date as Millipore
and MMI may mutually agree), MMI shall assume all liabilities relating to,
arising out of, or resulting from claims, if any, under the HCFA data match
reports that relate to MMI Employees.
(e) COBRA. Millipore shall be responsible through the Distribution
Date (or such other date as Millipore and MMI may mutually agree) for
compliance with the health care continuation coverage requirements of COBRA
and the Millipore Health and Welfare Plans with respect to MMI Employees
and qualified beneficiaries (as such term is defined under COBRA). MMI
shall be responsible for providing Millipore with all necessary employee
change notices and related information for covered dependents, spouses,
qualified beneficiaries (as such term is defined under COBRA), and
alternate recipients pursuant to QMCSO, in accordance with applicable
Millipore COBRA policies and procedures. As soon as administratively
practicable after the Distribution Date (or such other date as Millipore
and MMI may mutually agree), Millipore shall provide MMI (through hard
copy, electronic format, or such other mechanism as is appropriate under
the circumstances), with a list of all qualified beneficiaries (as such
term is defined under COBRA) that relate to MMI and the relevant
information pertaining to their coverage elections and remaining COBRA time
periods. Effective as of the Distribution Date (or such other date as
Millipore and MMI may mutually agree), MMI shall be solely responsible for
compliance with the health care continuation coverage requirements of COBRA
and the MMI Health and Welfare Plans for MMI Employees and their qualified
beneficiaries (as such term is defined under COBRA); provided, however, MMI
may elect to retain Millipore's services in such manner and for such period
as Millipore and MMI may mutually agree to assist it with COBRA
administration and MMI shall reimburse Millipore for its costs and expenses
associated with such administration, subject to Section 9.2.
5.2 INSURANCE PLANS
(a) MMI INSURANCE PLANS. Effective as of the Separation Date, MMI
shall assume and be solely responsible for all liabilities relating to,
arising out of, or resulting
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from claims by MMI Employees attributable to employment with the MMI
Business whether incurred before or after the Separation Date. As of the
Distribution Date (or such other date(s) as Millipore and MMI may mutually
agree), MMI shall establish Insurance Plans to provide benefits similar to
those listed on Schedule 5.2 and, correspondingly, MMI shall be solely
responsible for the administration of the MMI Insurance Plans, including
the payment of all employer-related costs in establishing and maintaining
the MMI Insurance Plans, and for the collection and remittance of employee
premiums, subject to Section 9.2.
(b) INSURANCE PLANS FROM THE SEPARATION DATE THROUGH THE
DISTRIBUTION DATE. Except as otherwise agreed by Millipore and MMI, for the
period beginning with the Separation Date and ending on the Distribution
Date (or such other period as Millipore and MMI may mutually agree), MMI
shall be a Participating Company in the Millipore Insurance Plans listed in
Schedule 5.2. Millipore shall administer claims incurred under the
Millipore Insurance Plans by MMI Employees before the Distribution Date but
only to the extent that MMI has not, before such date, established and
assumed administrative responsibility for a corresponding Insurance Plan.
Any determination made or settlements entered into by Millipore with
respect to such claims shall be final and binding. Millipore shall retain
financial and administrative ("run-out") liability and all related
obligations and responsibilities for all claims incurred by MMI Employees
before the Distribution Date (or such other date(s) as Millipore and MMI
may mutually agree), including any claims that were administered by
Millipore as of, on, or after the Distribution Date (or such other date(s)
as Millipore and MMI may mutually agree). Except as set forth in the
preceding sentence, MMI shall reimburse Millipore for any and all direct
and indirect costs and expenses associated with its participation in the
Millipore Insurance Plans, subject to Section 9.2.
5.3 VENDOR ARRANGEMENTS. Millipore shall use its commercially reasonable
best efforts for and on behalf of MMI to procure, effective as of the
Distribution Date (or such other date(s) as Millipore and MMI may mutually
agree): (i) Health Plans which are comparable in the aggregate in all Material
Features to the Health Plans entered into by Millipore, as set forth in Schedule
5.1; and (ii) group insurance policies, which are comparable in the aggregate in
all Material Features to the group insurance policies entered into by Millipore,
as set forth in Schedule 5.2. In each case, MMI shall, as of Distribution Date
(or such other date as Millipore and MMI may mutually agree) establish, adopt
and/or implement such contracts, agreements or arrangements.
ARTICLE VI
EQUITY AND OTHER COMPENSATION
6.1 CASH PROFIT SHARING PLAN. MMI Employees shall cease their
participation in the Millipore Cash Profit Sharing Plan as of the Separation
Date. Effective as of the Separation Date (or such other date as Millipore and
MMI may mutually agree), MMI shall establish a bonus Plan for MMI Employees, to
be administered by the Compensation Committee of the MMI Board of Directors.
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6.2 MANAGEMENT INCENTIVE PLAN. MMI Employees shall cease their
participation in the Millipore Management Incentive Plan as of the Separation
Date. Effective as of the Separation Date (or such other date as Millipore and
MMI may mutually agree), MMI shall establish an executive bonus plan for MMI
Employees, to be administered by the compensation committee of the MMI Board of
Directors.
6.3 MILLIPORE OPTIONS.
(a) OPTION ASSUMPTION BY MMI. At the Distribution Date (or such
later other date as Millipore and MMI may mutually agree), each outstanding
Millipore Option held by MMI Employees, whether vested or unvested, shall
be, in connection with the Distribution, assumed by MMI. Each Millipore
Option so assumed by MMI shall continue to have, and be subject to, the
same terms and conditions set forth in the Millipore Stock Plan and as
provided in the respective option agreements governing such Millipore
Option as of the Distribution Date (or such other date as Millipore and MMI
may mutually agree), except that (i) such Millipore Option shall be
exercisable for that number of whole shares of MMI common stock equal to
the quotient of the number of shares of Millipore common stock that were
issuable upon exercise of such Millipore Option as of the Distribution Date
divided by the ratio of the MMI Stock Value to the Millipore Stock Value,
rounded down to the nearest whole number of shares of MMI common stock, and
(ii) the per share exercise price for the shares of MMI common stock
issuable upon exercise of such assumed Millipore Option shall be equal to
the product determined by multiplying the exercise price per share of
Millipore common stock at which such Millipore Option was exercisable as of
the Distribution Date by the Ratio, rounded up to the nearest whole cent.
(b) ASSUMPTION CRITERIA. The intention of Millipore and MMI is that
the assumption of Millipore Options by MMI pursuant to Subsection 6.3(a)
meet the following criteria: (i) the aggregate intrinsic value of the
assumed Millipore Options immediately after the assumption is not greater
than such value immediately before the assumption; (ii) with respect to
each such assumed Millipore Option, the ratio of the exercise price per
share to the MMI Stock Value of the assumed Millipore Options immediately
after the assumption is not less than the ratio of the exercise price per
share to the Millipore Stock Value immediately before the assumption; and
(iii) the vesting and option term of the assumed Millipore Options shall
not be changed.
(c) CERTAIN NON-U.S. OPTIONEES. Except as may otherwise be agreed
upon by Millipore and MMI, this Section 6.3 shall govern the treatment of
Millipore Options held by non-U.S. MMI Employees.
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6.4 MILLIPORE RESTRICTED STOCK.
(a) VESTING. Except as otherwise specified herein and subject to
the terms of the Millipore Stock Plan, on the Distribution Date, Millipore
restricted stock (including any MMI common stock issued with respect to
such Millipore restricted stock in connection with the Distribution) held
by MMI Employees shall become fully vested as of the Distribution Date and
shall otherwise be subject to the terms of the Millipore Stock Plan.
(b) CERTAIN NON-U.S. RESTRICTED STOCK HOLDERS. Except as may
otherwise be agreed upon by Millipore and MMI, this Section 6.4 shall
govern the treatment of Millipore restricted stock held by non-U.S. MMI
Employees.
6.5 EMPLOYEE STOCK PURCHASE PLAN. MMI Employees shall continue to be
eligible for participation in the Millipore Employee Stock Purchase Plan through
the earlier of the IPO Closing Date or the Distribution Date (the "ESPP Date").
Except as otherwise specified herein and subject to the terms of the Millipore
Employee Stock Purchase Plan on the ESPP Date, any funds in an account for a MMI
Employee in the Millipore Employee Stock Purchase Plan as of ESPP Date shall be
refunded to the MMI Employee as soon as practicable after the ESPP Date.
Effective on or before the ESPP Date (or such other date as Millipore and MMI
may mutually agree), MMI shall establish an employee stock purchase plan for the
benefit of MMI Employees.
ARTICLE VII
FRINGE AND OTHER BENEFITS
7.1 FRINGE BENEFITS:
(a) MMI FRINGE BENEFIT PLANS. Effective as of the Separation Date,
MMI shall assume and be solely responsible for all liabilities relating to,
arising out of, or resulting from MMI Employees' participation in fringe
benefit plans, programs, personnel policies and practices of Millipore
listed on Schedule 7.1, whether such liabilities are incurred before or
after the Separation Date. As of the Distribution Date (or such other
date(s) as Millipore and MMI may mutually agree), MMI shall establish
Fringe Benefit Plans to provide benefits similar to those listed on
Schedule 7.1 and, correspondingly, MMI shall be solely responsible for the
administration of the MMI Fringe Benefit Plans, including the payment of
all employer-related costs in establishing and maintaining the MMI Fringe
Benefit Plans subject to Section 9.2.
(b) FRINGE BENEFIT PLANS FROM THE SEPARATION DATE THROUGH THE
DISTRIBUTION DATE. Except as otherwise agreed by Millipore and MMI, for the
period beginning with the Separation Date and ending on the Distribution
Date (or such other period as Millipore and MMI may mutually agree), MMI
shall be a Participating Company in the Millipore Fringe Benefit Plans
listed in Schedule 7.1. Millipore shall administer benefits under the
Millipore Fringe Benefit Plans for MMI Employees before the Distribution
Date but only to the extent that MMI has not, before such date,
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established and assumed administrative responsibility for a corresponding
Fringe Benefit Plan. MMI shall reimburse Millipore for any and all direct
and indirect costs and expenses associated with its participation in the
Millipore Fringe Benefit Plans, subject to Section 9.2.
7.2 OTHER BENEFIT PLANS:
(a) CREDIT UNION. Millipore shall use its commercially reasonable
best efforts to make the Millipore Credit Union available to MMI Employees
on substantially similar terms and conditions as are offered to current
employees of Millipore, through such date as MMI and Millipore may mutually
agree. MMI shall reimburse Millipore for any and all direct and indirect
costs and expenses related thereto, subject to Section 9.2.
(b) CAFETERIA AND RELATED SUBSIDIES. Millipore shall continue to
make its cafeteria, vending machines, and other food or beverage provision
facilities at the Millipore Bedford campus (collectively, the "Food
Programs") available to MMI Employees on substantially similar terms and
conditions as are offered to employees of Millipore, until the termination
of the occupancy agreements between Millipore and MMI regarding MMI's
occupancy of the Millipore Bedford campus (or such other date as Millipore
and MMI may mutually agree). Millipore and MMI shall use their commercially
reasonable best efforts to mutually agree on the appropriate methods and/or
processes to ensure continued tax-favored status of Millipore's Food
Programs under the Code. To the extent not otherwise addressed in the
occupancy agreements, MMI shall reimburse Millipore for any and all direct
and indirect costs and expenses associated with allowing MMI access to
Millipore's Food Programs, subject to Section 9.2.
(c) MISCELLANEOUS. To the extent that Millipore maintains, sponsors
or provides benefits other than those specified in Schedule 7.1 to its
eligible employees, then Millipore shall, to the extent permitted by law,
continue to make such benefits available to MMI Employees on substantially
similar terms and conditions as are offered to Millipore employees through
the Separation Date (or such other date upon which MMI and Millipore
mutually agree). MMI shall reimburse Millipore for any and all direct and
indirect costs and expenses associated with, arising out of, or resulting
from the provision of such other fringe benefits.
ARTICLE VIII
MILLIPORE PARTICIPATION AND RETIREMENT PLANS
8.1 MILLIPORE PARTICIPATION PLAN. MMI Employees shall continue to
participate in the Millipore Participation Plan until the Separation Date (or
such other date as Millipore and MMI may mutually agree). As of the Separation
Date(or such other date as Millipore and MMI may mutually agree), MMI Employees
shall cease active participation in the Participation Plan and shall no longer
be entitled to contributions to such Plan made with respect to periods after
December 31, 2000. MMI Employees shall remain fully vested in their accounts
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in the Participation Plan and their accounts shall remain in the Participation
Plan until the Distribution Date. As soon as possible after the Distribution
Date, the benefits under the Millipore Participation Plan attributable to the
MMI Employees shall be distributed as follows: MMI Employees shall be offered
the opportunity at that time to transfer their accounts in the Millipore
Participation Plan to the Millipore Retirement Plan to purchase an annuity
benefit, to the extent they are so eligible under the terms of the Millipore
Retirement Plan, or to receive their account balances in a lump sum, direct that
their accounts be transferred by direct rollover to the MMI Savings and
Investment Plan or any other eligible retirement plan, or elect to have their
account balances retained in the Millipore Participation Plan, all in accordance
with the terms of such Plans.
8.2 MILLIPORE RETIREMENT PLAN. As of the Separation Date (or such other
date as Millipore and MMI may mutually agree), MMI Employees shall cease active
participation in the Millipore Retirement Plan and all benefit accruals
attributable to MMI Employees under the Millipore Retirement Plan shall cease as
of that date. All accrued benefits of MMI Employees who are active on the
Separation Date (or such other date as Millipore and MMI may mutually agree)
shall become fully vested as of such date. The accrued benefits of MMI Employees
under the Millipore Retirement Plan (reflecting any offset for Millipore
Participation Plan account balances) shall be determined as of the Separation
Date (or such other date as Millipore and MMI may mutually agree), and as soon
as possible after the Distribution Date, the benefits under the Millipore
Retirement Plan attributable to the MMI Employees shall be distributed in
accordance with the terms of the Millipore Retirement Plan.
8.3 NO TRANSFER OF ASSETS TO MMI SAVINGS AND INVESTMENT PLAN. Except as
provided under the direct rollover provisions of the Millipore Participation
Plan and the Millipore Retirement Plan, no assets of such Plans shall be
transferred to or assumed by the MMI Savings and Investment Plan or any other
MMI Plan.
8.4 MAKE-UP BENEFITS FOR CERTAIN EMPLOYEES. Millipore and MMI agree to
work together to determine the shortfall of retirement benefits that certain
employees will experience in the five years following the Separation Date as the
result of their change of employment from Millipore to MMI and to determine a
fair adjustment of benefits to be paid such employees through additional
contributions to the MMI Savings and Investment Plan.
ARTICLE IX
ADMINISTRATIVE PROVISIONS
9.1 TRANSITIONAL SERVICES AGREEMENT. On or prior to the Separation Date
(or such other date as MMI and Millipore may mutually agree), Millipore and MMI
may enter into a services agreement covering the provisions of interim services,
including financial, accounting, legal, benefits-related and other services
(including inter alia assistance with the establishment of MMI plans as
described above) by Millipore to MMI or, in certain circumstances, vice versa,
if appropriate or necessary.
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9.2 PAYMENT OF LIABILITIES, PLAN EXPENSES AND RELATED MATTERS.
(a) EXPENSES AND COSTS CHARGEABLE TO A TRUST. Effective as of the
Separation Date, MMI shall pay its share of any contributions made to any
trust maintained in connection with a Millipore Plan while MMI is a
Participating Company in that Millipore Plan.
(b) CONTRIBUTIONS TO TRUSTS. With respect to Millipore Plans to
which MMI Employees make contributions, Millipore shall use reasonable
procedures to determine MMI assets and liabilities associated with each
such Plan, taking into account such contributions, settlements, refunds and
similar payments.
(c) ADMINSTRATIVE EXPENSES NOT CHARGEABLE TO A TRUST. Effective as
of the Separation Date, to the extent not charged pursuant to a
transitional services agreement (as contemplated by Section 9.1), and to
the extent not otherwise agreed to in writing by Millipore and MMI, and to
the extent not chargeable to a trust established in connection with a
Millipore Plan (as provided in paragraph (a)), MMI shall be responsible,
through either direct payment or reimbursement to Millipore, for its
allocable share of actual third party and/or vendor costs and expenses
incurred by Millipore and additional costs and expenses, subject to the
methodology reasonably agreed upon by Millipore and MMI, in the
administration of (i) the Millipore Plans while MMI participates in such
Millipore Plans, and (ii) the MMI Plans, to the extent Millipore procures,
prepares, implements and/or administers such MMI Plans. To the extent not
otherwise determinable through direct allocation of costs and expenses,
MMI's allocable share of such costs and expenses will be based on MMI
Revenue as a percentage of total Millipore Revenue.
9.3 TRANSITIONAL STAFFING SERVICES. Millipore shall provide certain
transitional staffing services and other services as Millipore and MMI may
mutually agree to MMI in such manner and for such period as Millipore and MMI
may mutually agree. MMI shall reimburse Millipore for any and all direct and
indirect costs and expenses related thereto.
9.4 SHARING OF PARTICIPANT INFORMATION. In addition to the
responsibilities and obligations of Millipore and MMI specified in this
Agreement, Millipore and MMI shall share, or cause to be shared, all participant
information that is necessary or appropriate for the efficient and accurate
administration of each of the Millipore Plans and the MMI Plans during the
respective periods applicable to such Plans (as MMI and Millipore may mutually
agree). Millipore and MMI and their respective authorized agents shall, subject
to applicable laws of confidentiality and data protection, be given reasonable
and timely access to, and may make copies of, all information relating to the
subjects of this Agreement in the custody of the other party or its agents, to
the extent necessary or appropriate for such administration.
9.5 REPORTING AND DISCLOSURE COMMUNICATIONS TO PARTICIPANTS. While MMI is
a Participating Company in the Millipore Plans, MMI shall take, or cause to be
taken, all actions necessary or appropriate to facilitate the distribution of
all Millipore Plan-related communications and materials to its employees,
participants and
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beneficiaries, including (without limitation) summary plan descriptions and
related summaries of material modification(s), summary annual reports,
investment information, prospectuses, notices and enrollment material for the
Millipore Plans and MMI Plans. MMI shall reimburse Millipore for the costs and
expenses relating to the copies of all such documents provided to MMI. MMI shall
assist Millipore in complying with all reporting and disclosure requirements of
ERISA, including the preparation of Form Series 5500 annual reports for the
Millipore Plans, as applicable.
9.6 AUDITS REGARDING VENDOR CONTRACTS. From the period beginning as of the
Separation Date and ending on December 31, 2001 (or such later date as Millipore
and MMI may mutually agree), Millipore and MMI and their duly authorized
representatives shall have the right to conduct joint audits with respect to any
vendor contracts that relate to both the Millipore Health and Welfare Plans and
the MMI Health and Welfare Plans. The scope of such audits shall encompass the
review of all correspondence, account records, claim forms, cancelled drafts
(unless retained by the bank), provider bills, medical records submitted with
claims, billing corrections, vendor's internal corrections of previous errors
and any other documents or instruments relating to the services performed by the
vendor under the applicable vendor contracts. Millipore and MMI shall agree on
the performance standards, audit methodology, auditing policy and quality
measures, reporting requirements, and the manner in which costs and expenses
incurred in connection with such audits shall be shared.
9.7 EMPLOYEE IDENTIFICATION NUMBERS. Until the Distribution Date (or such
other period as Millipore and MMI may mutually agree), Millipore and MMI shall
not change any employee identification numbers assigned by Millipore. Millipore
and MMI mutually agree to establish a policy pursuant to which employee
identification numbers assigned to either employees of Millipore or MMI shall
not be duplicated between Millipore and MMI.
9.8 BENEFICIARY DESIGNATIONS. Subject to Section 9.11, all beneficiary
designations made by MMI Employees for the Millipore Plans shall be transferred
to and be in full force and effect under the corresponding MMI Plans, in
accordance with the terms of each such applicable MMI Plan, until such
beneficiary designations are replaced or revoked by the MMI Employees who made
the beneficiary designations.
9.9 REQUESTS FOR REGULATORY OPINIONS. Millipore and MMI shall make such
applications to regulatory agencies, including the Internal Revenue Service and
Department of Labor, as may be necessary or appropriate. MMI and Millipore
shall cooperate fully with one another on any issue relating to the transactions
contemplated by this Agreement for which Millipore and/or MMI elects to seek a
determination letter or private letter ruling from the Internal Revenue Service
or an advisory opinion from the Department of Labor.
9.10 FIDUCIARY MATTERS. Millipore and MMI each acknowledge that actions
contemplated to be taken pursuant to this Agreement may be subject to fiduciary
duties or standards of conduct under ERISA or other applicable law, and that no
party shall be deemed to be in violation of this Agreement if such party fails
to comply with any provisions hereof based upon such party's good faith
determination that to do so would violate such a fiduciary duty or standard.
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9.11 CONSENT OF THIRD PARTIES. If any provision of this Agreement is
dependent on the consent of any third party (such as a vendor) and such consent
is withheld, Millipore and MMI shall use their commercially reasonable best
efforts to implement the applicable provisions of this Agreement. If any
provision of this Agreement cannot be implemented due to the failure of such
third party to consent, Millipore and MMI shall negotiate in good faith to
implement such provision in a mutually satisfactory manner.
9.12 MILLIPORE INTRANET. Through the Distribution Date (or such other date
as MMI and Millipore may mutually agree), Millipore shall make its Millipore
intranet site available to MMI Employees. MMI shall reimburse Millipore for any
and all costs and expenses related to making its intranet site available to MMI
Employees, subject to any transitional services agreement (as contemplated by
Section 9.1). Millipore and MMI shall use their commercially reasonable best
efforts to mutually agree on the appropriate methods by which MMI shall
establish its own intranet site.
ARTICLE X
EMPLOYMENT-RELATED MATTERS
10.1 TERMS OF MMI EMPLOYMENT. All basic terms and conditions of employment
for MMI Employees including, without limitation, their pay and benefits in the
aggregate, shall, to the extent legally and practicably possible, remain
substantially the same through the Distribution Date as the terms and conditions
that were in place when the MMI Employee or MMI Employee was employed by
Millipore, as applicable. Notwithstanding the foregoing, MMI Employees shall be
required to execute a new agreement regarding confidential information and
proprietary developments in a form approved by MMI by the Distribution Date. In
addition, nothing in this Agreement shall be construed to change the at-will
status of the employment of any of the employees of the Millipore or MMI.
10.2 HR DATA SUPPORT SYSTEMS. Millipore shall provide human resources data
support for MMI Employees through December 31, 2001 (or such other period as
Millipore and MMI may mutually agree). MMI agrees to fully reimburse Millipore
for any and all direct and indirect costs and expenses associated with its use
of the Millipore human resources data support systems, subject to Section 9.2.
In the event that Millipore and MMI agree to extend the time period beyond
December 31, 2001, then the costs and expenses shall be computed in accordance
with Section 9.2. Millipore and MMI each reserves the right to discontinue MMI's
access to any Millipore human resources data support systems with sixty (60)
days' notice (or such other period as Millipore and MMI may mutually agree).
10.3 EMPLOYMENT OF EMPLOYEES WITH U.S. WORK VISAS. MMI shall request
amendments to the nonimmigrant visa status of MMI Employees with U.S. work visas
authorizing them to work for Millipore, to request authorization to work for
MMI.
10.4 CONFIDENTIALITY AND PROPRIETARY INFORMATION. No provision of this
Agreement shall be deemed to release any individual for any violation of the
Millipore
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non-competition guideline or any agreement or policy pertaining to confidential
or proprietary information of Millipore, or otherwise relieve any individual of
his or her obligations under such non-competition guideline, agreement, or
policy.
10.5 PERSONNEL RECORDS. Subject to applicable laws on confidentiality and
data protection, Millipore shall deliver to MMI prior to the Separation Date (or
such other date as Millipore and MMI may mutually agree), personnel records of
MMI Employees to the extent such records relate to MMI Employees' active
employment by, leave of absence from, or termination of employment with MMI. MMI
shall fully reimburse Millipore for any and all direct and indirect costs and
expenses associated with such delivery, subject to Section 9.2.
10.6 MEDICAL RECORDS. Subject to applicable laws on confidentiality and
data protection, Millipore shall deliver to MMI prior to the Separation Date (or
such other date as Millipore and MMI may mutually agree), medical records of MMI
Employees to the extent such records (a) relate to MMI Employees' active
employment by, leave of absence from, or termination of employment with MMI. MMI
shall fully reimburse Millipore for any and all direct and indirect costs and
expenses associated with such delivery, subject to Section 9.2.
10.7 UNEMPLOYMENT INSURANCE PROGRAM. Unless otherwise directed by MMI,
Millipore shall use its commercially reasonable best efforts to cause MMI to
receive service from Millipore's third party unemployment insurance
administrator through December 31, 2001 (or such other date as Millipore and MMI
may mutually agree). MMI shall reimburse Millipore for its allocable share of
fees paid and related costs and expenses by Millipore to its third party
unemployment insurance administrator for services rendered during such period,
pursuant to the Master Transitional Services Agreement. MMI shall cooperate
with the unemployment insurance administrator by providing any and all necessary
or appropriate information reasonably available to MMI.
10.8 NON-TERMINATION OF EMPLOYMENT; NO THIRD-PARTY BENEFICIARIES. No
provision of this Agreement shall be construed to create any right or accelerate
entitlement to any compensation or benefit whatsoever on the part of any MMI
Employee, MMI Employee or other former, present or future employee of Millipore
or MMI under any Millipore Plan or MMI Plan or otherwise. Without limiting the
generality of the foregoing: (a) neither the Distribution or Separation, nor the
termination of the Participating Company status of MMI shall cause any employee
to be deemed to have incurred a termination of employment; and (b) no transfer
of employment between Millipore and MMI before the Distribution Date shall be
deemed a termination of employment for any purpose hereunder.
10.9 EMPLOYMENT LITIGATION.
(a) CLAIMS TO BE TRANSFERRED TO MMI AND/OR JOINTLY DEFENDED BY
Millipore AND MMI. On or before the Separation Date, Millipore and MMI
shall enter into a written agreement that specifies the legal
responsibility and accompanying liability for identified claims of MMI.
(b) UNSCHEDULED CLAIMS. MMI shall have the sole responsibility for
all employment-related claims regarding MMI Employees that exist, or come
into existence,
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on or after the Separation Date relating to, arising out of, or resulting
from their employment with MMI.
ARTICLE XI
GENERAL PROVISIONS
11.1 EFFECT IF SEPARATION, IPO AND/OR DISTRIBUTION DOES NOT OCCUR. Subject
to Section 11.9, if the Separation, IOP and/or Distribution does not occur, then
all actions and events that are, under this Agreement, to be taken or occur
effective as of the Separation Date, IPO and/or Distribution, shall not be taken
or occur except to the extent specifically agreed by MMI and Millipore.
11.2 RELATIONSHIP OF PARTIES. Nothing in this Agreement shall be deemed or
construed by the parties or any third party as creating the relationship of
principal and agent, partnership or joint venture between the parties, the
understanding and agreement being that no provision contained herein, and no act
of the parties, shall be deemed to create any relationship between the parties
other than the relationship set forth herein.
11.3 AFFILIATES. Each of Millipore and MMI shall cause to be performed and
hereby guarantee the performance of any and all actions of Millipore (and its
affiliates) or MMI (and its affiliates), respectively.
11.4 GOVERNING LAW. To the extent not preempted by applicable federal law,
including, without limitation, ERISA, the Code and applicable securities laws,
this Agreement shall be governed by, construed and interpreted in accordance
with the laws of the Commonwealth of Massachusetts, as to all matters, including
matters of validity, construction, effect, performance and remedies.
11.5 ASSIGNMENT. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective legal representatives and
successors, and nothing in this Agreement, express or implied, is intended to
confer upon any other Person any rights or remedies of any nature whatsoever
under or by reason of this Agreement. This Agreement may be enforced separately
by Millipore and MMI. Neither party may assign this Agreement or any rights or
obligations hereunder, without the prior written consent of the other party, and
any such assignment shall be void; provided, however, either party may assign
this Agreement to a successor entity in conjunction with such party's
reincorporation.
11.6 SEVERABILITY. If any term or other provision of this Agreement is
determined to be invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to either party. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible and in an
acceptable manner to the end that transactions contemplated hereby are fulfilled
to the fullest possible extent.
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11.7 INTERPRETATION. The headings contained in this Agreement or any
Schedule hereto and in the table of contents to this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Any capitalized term used in any Schedule but not otherwise
defined therein shall have the meaning assigned to such term in this Agreement.
When a reference is made in this Agreement to an Article, Section or Schedule,
such reference shall be to an Article of, Section of, or Schedule to this
Agreement unless otherwise indicated.
11.8 AMENDMENT. The Board of Directors of MMI and Millipore may mutually
agree to amend the provisions of this Agreement at any time or times, for any
reason, either prospectively or retroactively, to such extent and in such manner
as the Boards mutually deem advisable. Each Board may delegate its amendment
power, in whole or in part, to one or more Persons or committees as it deems
advisable. The Chief Executive Officer of Millipore and the Chief Executive
Officer of MMI have full power and authority to mutually adopt an amendment to
this Agreement (subject to each of their authority to amend Plans). No change or
amendment shall be made to this Agreement, except by an instrument in writing
signed by authorized individuals.
11.9 TERMINATION. This Agreement may be terminated and the Distribution
abandoned at any time prior to the IPO Closing Date by and in the sole
discretion of Millipore without the approval of MMI. This Agreement may be
terminated at any time after the IPO Closing Date and before the Distribution
Date by mutual consent of Millipore and MMI. In the event of termination
pursuant to this Section, no party shall have any liability of any kind to the
other party.
11.10 CONFLICT. In the event of any conflict between the provisions of this
Agreement and any Plan, the provisions of this Agreement shall control.
11.11 COUNTERPARTS. This Agreement, including the Schedules hereto and the
other documents referred to herein, may be executed in counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, each of the parties have caused this Employee Matters
Agreement to be executed on its behalf by its officers hereunto duly authorized
on the day and year first above written.
MILLIPORE CORPORATION
By:___________________________
Name:_________________________
Title:
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MILLIPORE MICROELECTRONICS INC.
By:___________________________
Name:_________________________
Title:
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