Exhibit 10.1
FORM OF
EMPLOYEE BENEFITS AGREEMENT
BY AND BETWEEN
U.S. BANCORP
AND
XXXXX XXXXXXX COMPANIES INC.
DATED AS OF
[ ], 2003
TABLE OF CONTENTS
ARTICLE I DEFINITIONS................................................................1
1.1 Affiliate..................................................................1
1.2 Agreement..................................................................1
1.3 Ancillary Agreements.......................................................1
1.4 Approved Leave of Absence..................................................1
1.5 Auditing Party.............................................................1
1.6 Award......................................................................2
1.7 Benefit Plan...............................................................2
1.8 Close of the Distribution Date.............................................2
1.9 COBRA......................................................................2
1.10 Code.......................................................................2
1.11 Committee..................................................................2
1.12 Convertible High Performance Option........................................2
1.13 Convertible Parent Option..................................................2
1.14 Convertible Restricted Stock...............................................3
1.15 Covered Employees..........................................................3
1.16 Distribution...............................................................3
1.17 Distribution Date..........................................................3
1.18 Distribution Year..........................................................3
1.19 ERISA......................................................................3
1.20 Former Parent Employee.....................................................3
1.21 Former Xxxxx Xxxxxxx Employee..............................................3
1.22 Health and Welfare Plans...................................................3
1.23 High Performance Option....................................................3
1.24 HIPAA......................................................................3
1.25 Immediately after the Distribution Date....................................3
1.26 Independent Third Party....................................................3
1.27 Liabilities................................................................4
1.28 Match Date.................................................................4
1.29 Non-Convertible High Performance Option....................................4
1.30 Non-Convertible Parent Option..............................................4
1.31 Non-parties................................................................4
1.32 NYSE.......................................................................4
1.33 Option.....................................................................4
1.34 Parent.....................................................................4
1.35 Parent Common Stock........................................................4
1.36 Parent Employee............................................................4
1.37 Parent Entities............................................................4
1.38 Parent Executive Benefit Plans.............................................4
1.39 Parent Flexible Benefit Plans..............................................4
1.40 Parent Long-Term Incentive Plans...........................................4
1.41 Parent Non-Qualified Retirement Plan.......................................5
1.42 Parent Non-Qualified Retirement Plan Participant...........................5
1.43 Parent Opening Stock Value.................................................5
1.44 Parent Pension Plan........................................................5
1.45 Parent Post-Retirement Welfare Benefits Plan...............................5
1.46 Parent Savings Plan........................................................5
1.47 Parent Severance Pay Program...............................................5
1.48 Parent Stock Value.........................................................5
1.49 Participating Company......................................................5
1.50 Person.....................................................................6
1.51 Xxxxx Xxxxxxx..............................................................6
1.52 Xxxxx Xxxxxxx Business.....................................................6
1.53 Xxxxx Xxxxxxx Common Stock.................................................6
1.54 Xxxxx Xxxxxxx Common Stock Value...........................................6
1.55 Xxxxx Xxxxxxx Employee.....................................................6
1.56 Xxxxx Xxxxxxx Entities.....................................................6
1.57 Xxxxx Xxxxxxx Executive Benefit Plans......................................6
1.58 Xxxxx Xxxxxxx Flexible Benefit Plan........................................6
1.59 Xxxxx Xxxxxxx Long-Term Incentive Plan.....................................6
1.60 Xxxxx Xxxxxxx Non-Qualified Retirement Plan................................6
1.61 Xxxxx Xxxxxxx Savings Plan.................................................7
1.62 Xxxxx Xxxxxxx Savings Plan Trust...........................................7
1.63 Restricted Stock...........................................................7
1.64 Restricted Stock Unit......................................................7
1.65 Separation.................................................................7
1.66 Separation and Distribution Agreement......................................7
1.67 Subsidiaries...............................................................7
1.68 Tax Sharing Agreement......................................................7
1.69 Transferred Account Balances...............................................7
1.70 Transition Date............................................................7
1.71 U.S........................................................................7
ARTICLE II GENERAL PRINCIPLES.........................................................7
2.1 Employment of Xxxxx Xxxxxxx Employees......................................7
2.2 Assumption and Retention of Liabilities; Related Assets....................8
2.3 Xxxxx Xxxxxxx Participation in Parent Benefit Plans........................8
2.4 Service Recognition........................................................8
2.5 Approval by Parent as Sole Stockholder.....................................8
ARTICLE III DEFINED CONTRIBUTION AND DEFINED BENEFIT PLANS.............................9
3.1 Savings Plan...............................................................9
3.2 Company Match..............................................................9
3.3 Parent Pension Plan........................................................9
(a) Retention of Parent Pension Plan......................................9
(b) Commencement of Pension..............................................10
(c) Vesting..............................................................10
ARTICLE IV HEALTH AND WELFARE PLANS..................................................10
4.1 General...................................................................10
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(a) Establishment of Xxxxx Xxxxxxx Health and Welfare Plans..............10
(b) Retention of Sponsorship and Liabilities.............................10
(c) Certain Specific Claims..............................................11
4.2 Flexible Benefit Plan.....................................................11
4.3 Workers' Compensation Liabilities.........................................12
4.4 Payroll Taxes and Reporting of Compensation...............................12
4.5 Parent Post-Retirement Welfare Benefits Plan..............................12
(a) Retention of Parent Post-Retirement Welfare Benefits Plan............12
(b) Xxxxx Xxxxxxx Post-Retirement Welfare Benefits Plans.................12
4.6 COBRA and HIPAA Compliance................................................13
ARTICLE V EXECUTIVE BENEFITS AND OTHER BENEFITS.....................................13
5.1 Assumption of Obligations.................................................13
5.2 Parent Executive Incentive Plan and the Annual Incentive Plan.............13
(a) Xxxxx Xxxxxxx Bonus Awards...........................................13
(b) Parent Bonus Awards..................................................13
5.3 Parent Long-Term Incentive Plans..........................................14
(a) Non-Convertible Parent Options.......................................14
(b) Convertible Parent Options...........................................14
(c) Incentive Stock Options; Foreign Grants/Awards.......................14
(d) Other Awards.........................................................15
(i) Convertible Parent Restricted Stock............................15
(ii) Non-Convertible Parent Restricted Stock........................15
(iii) Restricted Stock Units.........................................15
(e) Aggregate Limit......................................................15
(f) Miscellaneous Option and Other Award Terms...........................16
(g) Waiting Period for Exercisability of Options.........................17
(h) Restrictive Covenants................................................17
5.4 Registration Requirements.................................................18
5.5 Parent Non-Qualified Retirement Plans.....................................18
5.6 Severance Plans...........................................................18
ARTICLE VI GENERAL AND ADMINISTRATIVE................................................19
6.1 Sharing of Participant Information........................................19
6.2 Reasonable Efforts/Cooperation............................................19
6.3 No Third-Party Beneficiaries..............................................19
6.4 Audit Rights With Respect to Information Provided.........................19
6.5 Fiduciary Matters.........................................................20
6.6 Consent of Third Parties..................................................20
ARTICLE VII MISCELLANEOUS.............................................................20
7.1 Effect If Distribution Does Not Occur.....................................20
7.2 Relationship of Parties...................................................21
7.3 Affiliates................................................................21
7.4 Notices...................................................................21
7.5 Incorporation of Separation and Distribution Agreement Provisions.........21
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SIGNATURES OF THE PARTIES
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EMPLOYEE BENEFITS AGREEMENT
This
EMPLOYEE BENEFITS AGREEMENT, dated as of [ ], 2003 is by and between
U.S. Bancorp, a
Delaware corporation ("PARENT"), and Xxxxx Xxxxxxx Companies, a
Delaware corporation ("XXXXX XXXXXXX"). Capitalized terms used herein and not
otherwise defined shall have the respective meanings assigned to them in Article
I hereof or assigned to them in the Separation and Distribution Agreement (as
defined below), as applicable.
WHEREAS, the Board of Directors of Parent has determined that it is in the
best interests of Parent and its stockholders to separate Parent's existing
businesses into two independent companies;
WHEREAS, in furtherance of the foregoing, Parent and Xxxxx Xxxxxxx have
entered into a Separation and Distribution Agreement, dated as of the date
hereof (the "SEPARATION AND DISTRIBUTION AGREEMENT"), and other ancillary
agreements that will govern certain matters relating to the Separation and the
relationship of Parent, Xxxxx Xxxxxxx and their respective Subsidiaries
following the Distribution Date; and
WHEREAS, pursuant to the Separation and Distribution Agreement, Parent and
Xxxxx Xxxxxxx have agreed to enter into this Agreement for the purpose of
allocating assets, Liabilities and responsibilities with respect to certain
employee compensation and benefit plans and programs between and among them.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
following meanings:
1.1 "AFFILIATE" has the meaning given that term in the Separation and
Distribution Agreement.
1.2 "AGREEMENT" means this
Employee Benefits Agreement, including all
the Schedules hereto.
1.3 "ANCILLARY AGREEMENTS" has the meaning given that term in the
Separation and Distribution Agreement.
1.4 "APPROVED LEAVE OF ABSENCE" means an absence from active service (i)
due to an individual's inability to perform his or her regular job duties by
reason of illness or injury and resulting in eligibility to receive benefits
pursuant to the terms of the Parent Short-Term Disability Program or the Parent
Long-Term Disability Program, or (ii) pursuant to an approved leave policy with
a guaranteed right of reinstatement.
1.5 "AUDITING PARTY" has the meaning set forth in Section 6.4(a).
1.6 "AWARD," when immediately preceded by "Parent," means Parent
Restricted Stock and Parent Restricted Stock Units and, when immediately
preceded by "Xxxxx Xxxxxxx," means Xxxxx Xxxxxxx Restricted Stock and Restricted
Stock Units.
1.7 "BENEFIT PLAN" shall mean, with respect to an entity or any of its
Subsidiaries, (a) each "employee welfare benefit plan" (as defined in Section
3(1) of ERISA) and all other employee benefits arrangements, policies or payroll
practices (including, without limitation, severance pay, sick leave, vacation
pay, salary continuation, disability, retirement, deferred compensation, bonus,
stock option or other equity-based compensation, hospitalization, medical
insurance or life insurance) sponsored or maintained by such entity or by any of
its Subsidiaries (or to which such entity or any of its Subsidiaries contributes
or is required to contribute) and (b) all "employee pension benefit plans" (as
defined in Section 3(2) of ERISA), occupational pension plan or arrangement or
other pension arrangements sponsored, maintained or contributed to by such
entity or any of its Subsidiaries (or to which such entity or any of its
Subsidiaries contributes or is required to contribute). When immediately
preceded by "Parent," Benefit Plan means any Benefit Plan sponsored, maintained
or contributed to by Parent or a Parent Entity. When immediately preceded by
"Xxxxx Xxxxxxx," Benefit Plan means any Benefit Plan sponsored, maintained or
contributed to by Xxxxx Xxxxxxx or any Xxxxx Xxxxxxx Entity. The Xxxxx Xxxxxxx
Benefit Plans in effect prior to the Distribution are listed in Schedule 1.7
hereto.
1.8 "CLOSE OF THE DISTRIBUTION DATE" means 11:59:59 P.M., Eastern
Standard Time or Eastern Daylight Time (whichever shall then be in effect), on
the Distribution Date.
1.9 "COBRA" means the continuation coverage requirements for "group
health plans" under Title X of the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended, and as codified in Code Section 4980B and ERISA
Sections 601 through 608.
1.10 "CODE" means the Internal Revenue Code of 1986, as amended, or any
successor federal income tax law. Reference to a specific Code provision also
includes any proposed, temporary or final regulation in force under that
provision.
1.11 "COMMITTEE" has the meaning set forth in Section 5.3(a).
1.12 "CONVERTIBLE HIGH PERFORMANCE OPTION" means each portion of a High
Performance Option, on a grant by grant basis, which is not a Non-Convertible
High Performance Option.
1.13 "CONVERTIBLE PARENT OPTION" means a Parent Option that, as of the
Distribution Date, (i) is not a High Performance Option, (A) is outstanding
under any Parent Long-Term Incentive Plan, (B) is vested, (C) is held by a
person who is a Xxxxx Xxxxxxx Employee, and (D) would by its terms continue to
vest and would remain exercisable for the remainder of its term following such
employee's termination of employment (x) by Parent other than for "cause" or
"misconduct" or (y) by the optionee, (ii) is not a High Performance Option, (A)
is outstanding under any Parent Long-Term Incentive Plan, (B) is held by a
person who is a Xxxxx Xxxxxxx Employee, and (C) would terminate within 90 days
following a termination of the optionee's employment other than for "gross and
willful misconduct" or "cause" or (iii) is a Convertible High Performance
Option.
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1.14 "CONVERTIBLE RESTRICTED STOCK" has the meaning set forth in
Section 5.3(d)(i).
1.15 "COVERED EMPLOYEES" has the meaning set forth in Section 4.2(i).
1.16 "DISTRIBUTION" has the meaning given that term in the Separation and
Distribution Agreement.
1.17 "DISTRIBUTION DATE" has the meaning given that term in the
Separation and Distribution Agreement.
1.18 "DISTRIBUTION YEAR" means the calendar year during which the
Distribution Date occurs.
1.19 "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended. Reference to a specific provision of ERISA also includes any
proposed, temporary or final regulation in force under that provision.
1.20 "FORMER PARENT EMPLOYEE" means any individual who is a former
employee of Parent or a Parent Entity as of the Distribution Date.
1.21 "FORMER XXXXX XXXXXXX EMPLOYEE" means any individual who is a former
employee of Xxxxx Xxxxxxx or a Xxxxx Xxxxxxx Entity as of the Distribution Date.
1.22 "HEALTH AND WELFARE PLANS" shall mean any plan, fund or program
which was established or is maintained for the purpose of providing for its
participants or their beneficiaries, through the purchase of insurance or
otherwise, medical, dental, surgical or hospital care or benefits, or benefits
in the event of sickness, accident, disability, death or unemployment, or
vacation benefits, apprenticeship or other training programs or day care
centers, scholarship funds, or prepaid legal services, including any such plan,
fund or program as defined in Section 3(1) of ERISA. When immediately preceded
by "Parent," Health and Welfare Plans means each Health and Welfare Plan that is
a Parent Benefit Plan. When immediately preceded by "Xxxxx Xxxxxxx," Health and
Welfare Plans means each Health and Welfare Plan that is a Xxxxx Xxxxxxx Benefit
Plan.
1.23 "HIGH PERFORMANCE OPTION" means a Parent Option that, as of the
Distribution Date, (i) is outstanding under any Parent Long-Term Incentive Plan,
(ii) is held by a person who is a Xxxxx Xxxxxxx Employee, (iii) is unvested,
(iv) was granted on January 19, 1999 or February 16, 1999 and (v) were not
granted pursuant to plan UC83 or UM80.
1.24 "HIPAA" means the health insurance portability and accountability
requirements for "group health plans" under the Health Insurance Portability and
Accountability Act of 1996, as amended.
1.25 "IMMEDIATELY AFTER THE DISTRIBUTION DATE" means on the first moment
of the day after the Distribution Date.
1.26 "INDEPENDENT THIRD PARTY" has the meaning set forth in
Section 5.3(f)(vi) of this Agreement.
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1.27 "LIABILITIES" has the meaning given that term in the Separation and
Distribution Agreement.
1.28 "MATCH DATE" has the meaning set forth in Section 3.2.
1.29 "NON-CONVERTIBLE HIGH PERFORMANCE OPTION" means fifty percent, on a
grant by grant basis, of the shares of Parent Common Stock subject to a High
Performance Option.
1.30 "NON-CONVERTIBLE PARENT OPTION" means a Parent Option outstanding
under any Parent Long-Term Incentive Plan as of the Distribution Date other than
a Convertible Parent Option.
1.31 "NON-PARTIES" has the meaning set forth in Section 6.4(b).
1.32 "NYSE" means the New York Stock Exchange, Inc.
1.33 "OPTION," when immediately preceded by "Parent," means an option
(either nonqualified or incentive) to purchase shares of Parent Common Stock
pursuant to a Parent Long-Term Incentive Plan. When immediately preceded by
"Xxxxx Xxxxxxx," Option means an option (either nonqualified or incentive) to
purchase shares of Xxxxx Xxxxxxx Common Stock pursuant to the Xxxxx Xxxxxxx
Long-Term Incentive Plan.
1.34 "PARENT" is defined in the preamble to this Agreement.
1.35 "PARENT COMMON STOCK" has the meaning set forth in the Separation
and Distribution Agreement.
1.36 "PARENT EMPLOYEE" means any individual who, immediately prior to the
Close of the Distribution Date, is either actively employed by, or then on
Approved Leave of Absence from, any Parent Entity.
1.37 "PARENT ENTITIES" means the members of the Parent Group, as defined
in the Separation and Distribution Agreement, and their respective Subsidiaries
and Affiliates, excluding any business or operations (whether current or
historical, regardless of whether discontinued or sold) that are included in the
Xxxxx Xxxxxxx Business.
1.38 "PARENT EXECUTIVE BENEFIT PLANS" means the executive benefit and
nonqualified plans, programs, and arrangements established, sponsored,
maintained, or agreed upon, by any Parent Entity for the benefit of employees
and former employees of any Parent Entity before the Close of the Distribution
Date.
1.39 "PARENT FLEXIBLE BENEFIT PLANS" means the Parent Flexible Benefit
Plan, as in effect as of the time relevant to the applicable provision of this
Agreement.
1.40 "PARENT LONG-TERM INCENTIVE PLANS" means any of the U.S. Bancorp
2001 Stock Incentive Plan, the U.S. Bancorp 2001 Employee Stock Incentive Plan,
the U.S. Bancorp 1999 Stock Incentive Plan, the Firstar Corporation 1999
Employee Stock Incentive Plan, the Firstar Corporation 1998 Employee Stock
Incentive Plan, the U.S. Bancorp 1998 Executive Stock
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Incentive Plan, the U.S. Bancorp 1997 Stock Incentive Plan, the Star Banc
Corporation 1996 Starshare Stock Incentive Plan for Employees, the 1991
Performance and Equity Incentive Plan of the former U.S. Bancorp, the Xxxxx
Xxxxxxx 1993 Omnibus Stock Plan, the U.S. Bancorp 1991 Executive Stock Incentive
Plan and any other stock incentive plan of Parent, all as in effect as of the
time relevant to the applicable provisions of this Agreement.
1.41 "PARENT NON-QUALIFIED RETIREMENT PLAN" means the U.S. Bancorp
Non-Qualified Retirement Plan in effect as of the time relevant to the
applicable provision of this Agreement.
1.42 "PARENT NON-QUALIFIED RETIREMENT PLAN PARTICIPANT" means any
individual who has an accrued balance in the Parent Non-Qualified Retirement
Plan as of the Distribution Date.
1.43 "PARENT OPENING STOCK VALUE" means the opening per-share price of
Parent Common Stock as listed on the NYSE as of the opening of trading on the
first trading day following the Distribution Date; PROVIDED, HOWEVER, that if
the Distribution occurs at a time when the NYSE is open for trading, Parent
Opening Stock Value shall mean the price at which Parent Common Stock trades as
of the moment immediately after the Distribution; and PROVIDED, FURTHER, that if
the Distribution occurs prior to opening of trading on the NYSE on the
Distribution Date, the Parent Opening Stock Value shall mean the price at which
Parent Common Stock first trades on the Distribution Date.
1.44 "PARENT PENSION PLAN" means the U.S. Bancorp Pension Plan in effect
as of the time relevant to the applicable provision of this Agreement.
1.45 "PARENT POST-RETIREMENT WELFARE BENEFITS PLAN" means the Health and
Welfare Plan of Parent providing medical, dental or death benefits for retirees.
1.46 "PARENT SAVINGS PLAN" means the U.S. Bancorp 401(k) Savings Plan as
in effect as of the time relevant to the applicable provision of this Agreement.
1.47 "PARENT SEVERANCE PAY PROGRAM" means the U.S. Bancorp Severance Pay
Program and the Parent Severance Pay Excess Plan, including any severance
benefits payable under the U.S. Bancorp Comprehensive Welfare Benefit Plan or
any component Benefit Plans thereof such as the U.S. Bancorp Comprehensive
Welfare Benefit Middle Management Change in Control Excess Plan, each as in
effect as of the time relevant to the applicable provision of this Agreement.
1.48 "PARENT STOCK VALUE" means the closing per-share price of the Parent
Common Stock trading "regular way with due bills" as listed on the NYSE as of
4:00 P.M., Eastern Standard Time or Eastern Daylight Time (whichever shall then
be in effect) on the trading day immediately preceding the Distribution Date.
1.49 "PARTICIPATING COMPANY" means (a) Parent, (b) any Person (other than
an individual) that Parent has approved for participation in, and which is
participating in, a plan sponsored by any Parent Entity, and (c) any Person
(other than an individual) which, by the terms of such a plan, participates in
such plan or any employees of which, by the terms of such plan, participate in
or are covered by such plan.
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1.50 "PERSON" has the meaning given that term in the Separation and
Distribution Agreement.
1.51 "XXXXX XXXXXXX" is defined in the preamble to this Agreement.
1.52 "XXXXX XXXXXXX BUSINESS" has the meaning given to that term in the
Separation and Distribution Agreement.
1.53 "XXXXX XXXXXXX COMMON STOCK" means the Xxxxx Xxxxxxx Common Stock as
defined in the Separation and Distribution Agreement.
1.54 "XXXXX XXXXXXX COMMON STOCK VALUE" means the excess of the Parent
Stock Value over the Parent Ex-Dividend Closing Stock Value. For purposes of
this Section 1.54, the "Parent Ex-Dividend Closing Stock Value" means the
closing per-share price of the Parent Common Stock trading "ex-dividend" as
listed on the NYSE as of 4:00 P.M., Eastern Standard Time or Eastern Daylight
Time (whichever shall then be in effect) on the Dividend Date; PROVIDED,
HOWEVER, that if the Dividend occurs at a time when the NYSE is open for
trading, Parent Ex-Dividend Closing Stock Value shall mean the price at which
Parent Common Stock trading "ex-dividend last trades immediately before the
Dividend; PROVIDED, FURTHER, that if the Dividend occurs prior to the first
trade on the Dividend Date, the Parent Ex-Dividend Closing Stock Value shall
mean the price at which Parent Common Stock trading "ex-distribution" or "when
issued (to give effect to the Dividend)" last trades on the trading day
immediately preceding the Distribution Date.
1.55 "XXXXX XXXXXXX EMPLOYEE" means any individual who, immediately prior
to the Distribution, is either actively employed by, or then on Approved Leave
of Absence from, a Xxxxx Xxxxxxx Entity.
1.56 "XXXXX XXXXXXX ENTITIES" means the Xxxxx Xxxxxxx Group as defined in
the Separation and Distribution Agreement and any business or operations
(whether current or historical regardless of whether discontinued or sold)
included in the Xxxxx Xxxxxxx Business.
1.57 "XXXXX XXXXXXX EXECUTIVE BENEFIT PLANS" means the executive benefit
and nonqualified plans, programs, and arrangements established, sponsored,
maintained, or agreed upon, by any Xxxxx Xxxxxxx Entity for the benefit of
employees and former employees of any Xxxxx Xxxxxxx Entity before the Close of
the Distribution Date.
1.58 "XXXXX XXXXXXX FLEXIBLE BENEFIT PLAN" means the flexible benefit
plan to be established by Xxxxx Xxxxxxx pursuant to Section 4.2 of this
Agreement as in effect as of the time relevant to the applicable provision of
this agreement.
1.59 "XXXXX XXXXXXX LONG-TERM INCENTIVE PLAN" means the long-term
incentive plan or program to be established by Xxxxx Xxxxxxx, effective
immediately prior to the Distribution Date, in connection with the treatment of
Awards as described in Article V.
1.60 "XXXXX XXXXXXX NON-QUALIFIED RETIREMENT PLAN" has the meaning set
forth in Section 5.5.
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1.61 "XXXXX XXXXXXX SAVINGS PLAN" means the 401(k) and profit sharing
plan to be established by Xxxxx Xxxxxxx pursuant to Section 3.1 of this
Agreement, as in effect as of the time relevant to the applicable provision of
this agreement.
1.62 "XXXXX XXXXXXX SAVINGS PLAN TRUST" means a trust relating to the
Xxxxx Xxxxxxx Savings Plan intended to qualify under Section 401(a) and be
exempt under Section 501(a) of the Code.
1.63 "RESTRICTED STOCK," when immediately preceded by "Parent," means
shares of Parent Common Stock issued under a Parent Long-Term Incentive Plan
subject to forfeiture in the event that certain terms and conditions are not
satisfied and, when immediately preceded by "Xxxxx Xxxxxxx," means shares of
Xxxxx Xxxxxxx Common Stock issued under the Xxxxx Xxxxxxx Long-Term Incentive
Plan subject to forfeiture in the event that certain terms and conditions are
not satisfied.
1.64 "RESTRICTED STOCK UNIT" when immediately preceded by "Parent," means
units representing hypothetical shares of Parent Common Stock issued under a
Parent Benefit Plan and, when immediately preceded by "Xxxxx Xxxxxxx," means
units representing hypothetical shares of Xxxxx Xxxxxxx Common Stock issued
under the Xxxxx Xxxxxxx Long-Term Incentive Plan.
1.65 "SEPARATION" has the meaning given that term in the Separation and
Distribution Agreement.
1.66 "SEPARATION AND DISTRIBUTION AGREEMENT" is defined in the preamble
to this Agreement.
1.67 "SUBSIDIARIES" has the meaning given that term in the Separation and
Distribution Agreement.
1.68 "TAX SHARING AGREEMENT" means the Tax Sharing Agreement entered into
as of the date hereof between Parent and Xxxxx Xxxxxxx.
1.69 "TRANSFERRED ACCOUNT BALANCES" has the meaning set forth in
Section 4.2(i).
1.70 "TRANSITION DATE" has the meaning set forth in Section 4.1(a).
1.71 "U.S." means the 00 Xxxxxx Xxxxxx xx Xxxxxxx and the District of
Columbia.
ARTICLE II
GENERAL PRINCIPLES
2.1 EMPLOYMENT OF XXXXX XXXXXXX EMPLOYEES. All Xxxxx Xxxxxxx Employees
shall continue to be employees of Xxxxx Xxxxxxx or another Xxxxx Xxxxxxx Entity,
as the case may be, immediately after the Distribution.
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2.2 ASSUMPTION AND RETENTION OF LIABILITIES; RELATED ASSETS.
(a) As of the Distribution Date, except as expressly provided in
this Agreement, the Parent Entities shall assume or retain and Parent hereby
agrees to pay, perform, fulfill and discharge, in due course in full (i) all
Liabilities under all Parent Benefit Plans, (ii) all Liabilities with respect to
the employment or termination of employment of all Parent Employees, Former
Parent Employees and their dependents and beneficiaries, and other service
providers (including any individual who is, or was, an independent contractor,
temporary employee, temporary service worker, consultant, freelancer, agency
employee, leased employee, on-call worker, incidental worker, or nonpayroll
worker of any Parent Entity or in any other employment, non-employment, or
retainer arrangement, or relationship with any Parent Entity), in each case to
the extent arising in connection with or as a result of employment with or the
performance of services to any Parent Entity, and (iii) any other Liabilities
expressly assigned to Parent under this Agreement. All assets held in trust to
fund the Parent Benefit Plans and all insurance policies funding the Parent
Benefit Plans shall be Parent Assets (as defined in the Separation and
Distribution Agreement), except to the extent specifically provided otherwise in
this Agreement.
(b) From and after the Distribution Date, except as expressly
provided in this Agreement, Xxxxx Xxxxxxx and the Xxxxx Xxxxxxx Entities shall
assume or retain, as applicable, and Xxxxx Xxxxxxx hereby agrees to pay,
perform, fulfill and discharge, (i) all Liabilities under all Xxxxx Xxxxxxx
Benefit Plans, (ii) all Liabilities with respect to the employment or
termination of employment of all Xxxxx Xxxxxxx Employees and other service
providers (including any individual who is, or was, an independent contractor,
temporary employee, temporary service worker, consultant, freelancer, agency
employee, leased employee, on-call worker, incidental worker, or nonpayroll
worker of Xxxxx Xxxxxxx or a Xxxxx Xxxxxxx Entity or in any other employment,
non-employment, or retainer arrangement, or relationship with Xxxxx Xxxxxxx or a
Xxxxx Xxxxxxx Entity), and their dependents and beneficiaries, and (iii) all
Liabilities that are expressly assigned to Xxxxx Xxxxxxx or any Xxxxx Xxxxxxx
Entity under this Agreement.
2.3 XXXXX XXXXXXX PARTICIPATION IN PARENT BENEFIT PLANS. Except as
expressly provided in this Agreement, effective as of the Close of the
Distribution Date, Xxxxx Xxxxxxx and each other Xxxxx Xxxxxxx Entity shall cease
to be a Participating Company in any Parent Benefit Plan, and Parent and Xxxxx
Xxxxxxx shall take all necessary action before the Distribution Date to
effectuate such cessation as a Participating Company.
2.4 SERVICE RECOGNITION. Xxxxx Xxxxxxx shall cause the Xxxxx Xxxxxxx
Benefit Plans with respect to which service is a relevant factor to credit Xxxxx
Xxxxxxx Employees who are employed by Xxxxx Xxxxxxx immediately following the
Distribution with service before the Distribution Date recognized by Parent
under the terms of Parent Benefit Plans with respect to which service is a
relevant factor, except (a) to the extent duplication of benefits would result
and (b) for purposes of benefit accruals under any defined benefit pension plan.
2.5 APPROVAL BY PARENT AS SOLE STOCKHOLDER. Prior to the Distribution,
Parent shall cause Xxxxx Xxxxxxx to adopt the Xxxxx Xxxxxxx 2003 Long-Term
Incentive Plan substantially in the form attached hereto as EXHIBIT A.
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ARTICLE III
DEFINED CONTRIBUTION AND DEFINED BENEFIT PLANS
3.1 SAVINGS PLAN. As soon as practicable (and in no event later than 30
days) after the Distribution Date, Xxxxx Xxxxxxx shall establish the Xxxxx
Xxxxxxx Savings Plan and the Xxxxx Xxxxxxx Savings Trust. As soon as practical
following the establishment of the Xxxxx Xxxxxxx Savings Plan and the Xxxxx
Xxxxxxx Savings Trust, Parent shall cause the accounts (including any
outstanding loan balances) of the Xxxxx Xxxxxxx Employees who elect a transfer
under the Parent Savings Plan to be transferred to the Xxxxx Xxxxxxx Savings
Plan and the Xxxxx Xxxxxxx Savings Trust in cash or such other assets as
mutually agreed by Parent and Xxxxx Xxxxxxx, and Xxxxx Xxxxxxx shall cause the
Xxxxx Xxxxxxx Savings Plan to assume and be solely responsible for all
Liabilities under the Xxxxx Xxxxxxx Savings Plan to or relating to Xxxxx Xxxxxxx
Employees who elect a transfer of their accounts (to the extent assets related
to those accounts are transferred from the Parent Savings Plan). Xxxxx Xxxxxxx
will cause the Xxxxx Xxxxxxx Savings Plan to accept direct and indirect
rollovers from the Parent Savings Plan of any account balances of such Xxxxx
Xxxxxxx Employees in accordance with the applicable provisions of the Code.
Notwithstanding the foregoing, the Xxxxx Xxxxxxx Savings Plan shall not be
required to accept a rollover of any Parent Common Stock that is held in the
accounts of Xxxxx Xxxxxxx Employees. Any outstanding participant loans to Xxxxx
Xxxxxxx Employees who elect a transfer under the Parent Savings Plan of their
account to the Xxxxx Xxxxxxx Savings Plan shall be transferred to the Xxxxx
Xxxxxxx Savings Plan in kind. Parent and Xxxxx Xxxxxxx agree to cooperate in
making all appropriate filings and taking all reasonable actions required to
implement the provisions of this Section 3.1; PROVIDED that Xxxxx Xxxxxxx
acknowledges that it will be responsible for complying with any requirements and
applying for any determination letters with respect to the Xxxxx Xxxxxxx Savings
Plan.
3.2 COMPANY MATCH. Prior to the Distribution, Parent shall amend the
Parent Savings Plan to provide for the making of matching contributions under
the Parent Savings Plan to Xxxxx Xxxxxxx Employees for contributions made to the
Parent Savings Plan by such Xxxxx Xxxxxxx Employees on or prior to the
Distribution Date. As soon as possible following the Distribution Date (the
"MATCH DATE"), Parent shall, to the extent (a) permissible under Treasury
regulations and (b) such contributions are deemed to be qualified contributions,
pursuant to compliance testing of the Parent Savings Plan, contribute to
accounts of Xxxxx Xxxxxxx Employees under the Parent Savings Plan all matching
contributions, if any, due to the Xxxxx Xxxxxxx Employees who participate in the
Parent Savings Plan through the Distribution Date pursuant to the terms and
conditions of the Parent Savings Plan. As soon as practicable following the end
of the year in which the Distribution Date occurs, Xxxxx Xxxxxxx shall, to the
extent (a) permissible under Treasury regulations and (b) such contributions are
deemed to be qualified contributions, pursuant to compliance testing of the
Xxxxx Xxxxxxx Savings Plan, contribute to the Xxxxx Xxxxxxx Savings Plan all
matching contributions, if any, due under the terms and conditions of the Xxxxx
Xxxxxxx Savings Plan to the Xxxxx Xxxxxxx Employees who participate in the Xxxxx
Xxxxxxx Savings Plan from the Distribution Date through the end of the year in
which the Distribution Date occurs.
3.3 PARENT PENSION PLAN.
(a) RETENTION OF PARENT PENSION PLAN. Effective as of the Close
of the Distribution Date, Parent shall retain:
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(i) sponsorship of the Parent Pension Plan and its
related trust and any other trust or other funding arrangement established or
maintained with respect to such plan, or any assets held as of the Distribution
Date with respect to such plan; and
(ii) all Liabilities relating to, arising out of or
resulting from claims incurred by or on behalf of any individuals with respect
to benefits under the Parent Pension Plan.
(b) COMMENCEMENT OF PENSION. Effective as of the Close of the
Distribution Date, each Xxxxx Xxxxxxx Employee who is a participant in the
Parent Pension Plan shall be deemed to have terminated employment with Parent
and, to the extent vested in his or her benefit under the plan, shall be
eligible to request distribution of his or her pension in accordance with the
terms of such plan.
(c) VESTING. Following the Close of the Distribution Date, each
Xxxxx Xxxxxxx Employee who is a participant in the Parent Pension Plan as of
immediately prior to the Distribution Date and not vested in his or her benefit
under the Parent Pension Plan as of the Distribution Date shall continue to vest
in his or her benefit under the Parent Pension Plan for so long as such Xxxxx
Xxxxxxx Employee remains employed with Xxxxx Xxxxxxx or a Xxxxx Xxxxxxx Entity,
but upon termination of such employment such Xxxxx Xxxxxxx Employee's benefit
shall no longer continue to vest. Xxxxx Xxxxxxx shall notify Parent on a
quarterly basis at the end of each quarter following the Distribution Date of
any participant in the Parent Pension Plan who is not vested in his or her
benefit under the Parent Pension Plan who has terminated employment with Xxxxx
Xxxxxxx and the Xxxxx Xxxxxxx Entities.
ARTICLE IV
HEALTH AND WELFARE PLANS
4.1 GENERAL.
(a) ESTABLISHMENT OF XXXXX XXXXXXX HEALTH AND WELFARE PLANS.
Effective as of January 1, 2004 (the "TRANSITION DATE"), Xxxxx Xxxxxxx shall
adopt Health and Welfare Plans for the benefit of Xxxxx Xxxxxxx Employees, and
Xxxxx Xxxxxxx shall be responsible for all Liabilities relating to, arising out
of or resulting from health and welfare coverage or claims incurred by or on
behalf of Xxxxx Xxxxxxx Employees or their covered dependents under the Xxxxx
Xxxxxxx Health and Welfare Plans on or after the Transition Date.
(b) RETENTION OF SPONSORSHIP AND LIABILITIES. As of immediately
prior to the Transition Date, Parent shall retain:
(i) sponsorship of all Parent Health and Welfare Plans
and any trust or other funding arrangement established or maintained with
respect to such plans, including any "voluntary employee's beneficiary
association", or any assets held as of the Transition Date with respect to such
plans;
(ii) all Liabilities relating to, arising out of, or
resulting from health and welfare coverage or claims incurred by or on behalf of
Parent Employees, Former Parent
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Employees, Xxxxx Xxxxxxx Employees and Former Xxxxx Xxxxxxx Employees, or their
covered dependents under the Parent Health and Welfare Plans on or before the
Transition Date; and
(iii) except as provided in Section 4.1(c), all Liabilities
relating to health and welfare coverage or claims incurred by or on behalf of
Parent Employees, Former Parent Employees and Former Xxxxx Xxxxxxx Employees or
their covered dependents on or after the Transition Date under the Parent Health
and Welfare Plans.
Except as provided in Section 4.1(c), Parent shall not assume any Liability
relating to health and welfare claims incurred by or on behalf of Xxxxx Xxxxxxx
Employees or their covered dependents on or after the Transition Date, and such
claims shall be satisfied pursuant to Section 4.1(a). Except as provided in
Section 4.1(c), a claim or Liability (1) for medical, dental, vision and/or
prescription drug benefits shall be deemed to be incurred upon the rendering of
health services giving rise to the obligation to pay such benefits; (2) for life
insurance and accidental death and dismemberment and business travel accident
insurance benefits and workers' compensation benefits shall be deemed to be
incurred upon the occurrence of the event giving rise to the entitlement to such
benefits; (3) for salary continuation or other disability benefits shall be
deemed to be incurred upon the effective date of an individual's disability
giving rise to the entitlement to such benefits; and (4) for a period of
continuous hospitalization shall be deemed to be incurred on the date of
admission to the hospital.
(c) CERTAIN SPECIFIC CLAIMS. Parent shall be responsible for all
Liabilities under the applicable Parent Health and Welfare Plan that relate to,
arise out of or result from any period of continuous hospitalization of a Xxxxx
Xxxxxxx Employee or Former Xxxxx Xxxxxxx Employee or his or her covered
dependent that begins before the Transition Date under a Parent Health and
Welfare Plan and continues after the Transition Date; PROVIDED, HOWEVER, that
Parent shall not be responsible for Liabilities in excess of the benefits
otherwise provided by the terms of the respective plans. Parent also shall be
responsible for all Liabilities under the applicable Parent Health and Welfare
Plan that relate to, arise out of or result from any denture work, bridge work,
crown installation or root canal therapy for a Xxxxx Xxxxxxx Employee, Former
Xxxxx Xxxxxxx Employee or his or her covered dependent for which preparatory
dental services have been rendered under a Parent Health and Welfare Plan on or
before the Transition Date and such dental treatment continues after the
Transition Date, PROVIDED that such dental treatment is concluded within
allowable time limitations under the applicable Parent Health and Welfare Plan.
Coverage for any such hospitalization or dental services shall be provided after
the Transition Date without interruption under the appropriate Parent Health and
Welfare Plan until such hospitalization or treatment for such condition is
concluded or discontinued subject to applicable plan rules and limitations.
4.2 FLEXIBLE BENEFIT PLAN. Parent shall be responsible for all
Liabilities of the Xxxxx Xxxxxxx Employees who are participants in the Parent
Flexible Benefit Plan (the "COVERED EMPLOYEES") under the health care
reimbursement program, the transit and parking reimbursement program and the
dependent care reimbursement program of the Parent Flexible Benefit Plan for
claims incurred at any time during the 2003 plan year of the Parent Flexible
Benefit Plan and submitted to the Parent in accordance with the terms and
conditions of the Parent Flexible Benefit Plan.
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4.3 WORKERS' COMPENSATION LIABILITIES. Except as provided below, all
workers' compensation Liabilities relating to, arising out of, or resulting from
any claim by a Parent Employee, Former Parent Employee, Xxxxx Xxxxxxx Employee
and Former Xxxxx Xxxxxxx Employee that results from an accident occurring, or
from an occupational disease which becomes manifest, before the Close of the
Distribution Date shall be retained by Parent; provided, however, that all
amounts payable by Parent relating to, arising out of or resulting from any such
claim by a Xxxxx Xxxxxxx Employee shall be deemed to be a Xxxxx Xxxxxxx
Liability for purposes of the Insurance Matters Agreement and shall be paid by
Parent or Xxxxx Xxxxxxx as set forth in the Insurance Matters Agreement. All
workers' compensation Liabilities relating to, arising out of, or resulting from
any claim by a Parent Employee, Former Parent Employee or Former Xxxxx Xxxxxxx
Employee that results from an accident occurring, or from an occupational
disease which becomes manifest, on or after the Distribution Date shall be
retained by Parent. All workers' compensation Liabilities relating to, arising
out of, or resulting from any claim by a Xxxxx Xxxxxxx Employee that results
from an accident occurring, or from an occupational disease which becomes
manifest, on or after the Distribution Date shall be retained by Xxxxx Xxxxxxx.
For purposes of this Agreement, a compensable injury shall be deemed to be
sustained upon the occurrence of the event giving rise to eligibility for
workers' compensation benefits or an occupational disease becomes manifest, as
the case may be. Parent, Xxxxx Xxxxxxx and the other Xxxxx Xxxxxxx Entities
shall cooperate with respect to any notification to appropriate governmental
agencies of the Distribution and the issuance of new, or the transfer of
existing, workers' compensation insurance policies and claims handling
contracts.
4.4 PAYROLL TAXES AND REPORTING OF COMPENSATION. Parent and Xxxxx
Xxxxxxx shall, and shall cause the other Parent Entities and the other Xxxxx
Xxxxxxx Entities to, respectively, take such action as may be reasonably
necessary or appropriate in order to minimize Liabilities related to payroll
taxes after the Distribution Date. Parent and Xxxxx Xxxxxxx shall, and shall
cause the other Parent Entities and the other Xxxxx Xxxxxxx Entities to,
respectively, each bear its responsibility for payroll tax obligations and for
the proper reporting to the appropriate governmental authorities of compensation
earned by their respective employees after the Close of the Distribution Date,
including compensation related to the exercise of Options.
4.5 PARENT POST-RETIREMENT WELFARE BENEFITS PLAN.
(a) RETENTION OF PARENT POST-RETIREMENT WELFARE BENEFITS PLAN.
As of the Distribution Date, Parent shall retain (i) sponsorship of all Parent
Post-Retirement Welfare Benefits Plans and any trust or other funding
arrangement established or maintained with respect to such plans, or any assets
held as of the Distribution Date with respect to such plans and (ii) all
Liabilities relating to, arising out of, or resulting from retiree health and
welfare coverage or claims incurred by or on behalf of Parent Employees, Former
Parent Employees, Former Xxxxx Xxxxxxx Employees or their covered dependents
under the Parent Post-Retirement Welfare Benefits Plans. Parent shall not assume
any Liability relating to post-retirement welfare claims incurred by or on
behalf of Xxxxx Xxxxxxx Employees or their covered dependents after the
Distribution Date, and such claims shall be satisfied by Xxxxx Xxxxxxx pursuant
to Section 4.5(b).
(b) XXXXX XXXXXXX POST-RETIREMENT WELFARE BENEFITS PLANS.
Effective as of the Distribution Date, (i) Xxxxx Xxxxxxx may, in its sole
discretion, adopt Post-Retirement Welfare Benefits Plans for the benefit of
Xxxxx Xxxxxxx Employees, and (ii) Xxxxx Xxxxxxx shall be
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responsible for all Liabilities relating to, arising out of or resulting from
health and welfare coverage or claims incurred by or on behalf of Xxxxx Xxxxxxx
Employees or their covered dependents under the Xxxxx Xxxxxxx Post-Retirement
Welfare Benefits Plans.
4.6 COBRA AND HIPAA COMPLIANCE. Parent shall be responsible for
administering compliance with the health care continuation requirements of
COBRA, the certificate of creditable coverage requirements of HIPAA, and the
corresponding provisions of the Parent Health and Welfare Plans with respect to
Xxxxx Xxxxxxx Employees and their covered dependents who incur a COBRA
qualifying event or loss of coverage under the Parent Health and Welfare Plans
at any time on or before December 31, 2003. Effective on the Transition Date,
Xxxxx Xxxxxxx or another Xxxxx Xxxxxxx Entity shall be responsible for
administering compliance with the health care continuation requirements of
COBRA, the certificate of creditable coverage requirements of HIPAA, and the
corresponding provisions of the Xxxxx Xxxxxxx Health and Welfare Plans with
respect to Xxxxx Xxxxxxx Employees and their covered dependents who incur a
COBRA qualifying event or loss of coverage under the Xxxxx Xxxxxxx Health and
Welfare Plans at any time after December 31, 2003. The parties hereto agree that
the consummation of the transactions contemplated by this Agreement and the
Separation Agreement shall not constitute a COBRA qualifying event for any
purpose of COBRA.
ARTICLE V
EXECUTIVE BENEFITS AND OTHER BENEFITS
5.1 ASSUMPTION OF OBLIGATIONS. Except as provided in this Agreement,
effective as of the Distribution Time, Xxxxx Xxxxxxx shall assume and be solely
responsible for all Liabilities to or relating to Xxxxx Xxxxxxx Employees under
all Parent Executive Benefit Plans and Xxxxx Xxxxxxx Executive Benefit Plans.
None of the transactions contemplated by the Separation and Distribution
Agreement or any of the Ancillary Agreements, including, without limitation,
this Agreement, constitutes a change in control for purposes of any Employee
Benefit Plan.
5.2 PARENT EXECUTIVE INCENTIVE PLAN AND THE ANNUAL INCENTIVE PLAN.
(a) XXXXX XXXXXXX BONUS AWARDS. Xxxxx Xxxxxxx shall be
responsible for determining all bonus awards that would otherwise be payable
under the U.S. Bancorp Executive Incentive Plan and the U.S. Bancorp Annual
Incentive Plan to Xxxxx Xxxxxxx Employees for the Distribution Year. Xxxxx
Xxxxxxx shall also determine for Xxxxx Xxxxxxx Employees (i) the extent to which
established performance criteria (as interpreted by Xxxxx Xxxxxxx, in its sole
discretion) have been met, and (ii) the payment level for each Xxxxx Xxxxxxx
Employee. Xxxxx Xxxxxxx shall assume all Liabilities with respect to any such
bonus awards payable to Xxxxx Xxxxxxx Employees for the Distribution Year and
thereafter.
(b) PARENT BONUS AWARDS. Parent shall be responsible for
determining all bonus awards that would otherwise be payable under the U.S.
Bancorp Executive Incentive Plan and the U.S. Bancorp Annual Incentive Plan to
Parent Employees for the Distribution Year. Parent shall also determine for
Parent Employees (i) the extent to which established performance criteria have
been met, and (ii) the payment level for each such Parent Employee. Parent shall
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retain all Liabilities with respect to any such bonus awards payable to Parent
Employees for the Distribution Year and thereafter.
5.3 PARENT LONG-TERM INCENTIVE PLANS. Parent and Xxxxx Xxxxxxx shall use
their reasonable best efforts to take all actions necessary or appropriate so
that each outstanding Option and Award granted under any Parent Long-Term
Incentive Plan held by any individual shall be adjusted as set forth in this
Article V.
(a) NON-CONVERTIBLE PARENT OPTIONS. As determined by the
Compensation Committee of the Parent Board of Directors (the "COMMITTEE") in its
sole discretion pursuant to its authority under any of the Parent Long-Term
Incentive Plans, each Non-Convertible Parent Option shall be subject to the same
terms and conditions after the Distribution as the terms and conditions
applicable to such Non-Convertible Parent Option immediately prior to the
Distribution; PROVIDED, HOWEVER, that from and after the Close of the
Distribution (i) the number of shares of Parent Common Stock subject to such
Non-Convertible Parent Option, rounded to the nearest whole share, shall be
equal to the product of (x) the number of shares of Parent Common Stock subject
to such Non-Convertible Parent Option immediately prior to the Distribution Date
and (y) the quotient obtained by dividing the Parent Stock Value by the Parent
Opening Stock Value and (ii) the exercise price of such Non-Convertible Parent
Option, rounded to the nearest whole cent, shall be equal to the quotient
obtained by dividing (x) the exercise price of such Non-Convertible Parent
Option immediately prior to the Distribution by (y) the quotient obtained by
dividing the Parent Stock Value by the Parent Opening Stock Value; PROVIDED,
HOWEVER, that, in the case of any Non-Convertible Parent Option to which Section
421 of the Code applies by reason of its qualification under Section 422 of the
Code as of the Distribution, the exercise price, the number of shares of Parent
Common Stock subject to such option and the terms and conditions of exercise of
such option shall be determined in a manner consistent with the requirements of
Section 424(a) of the Code.
(b) CONVERTIBLE PARENT OPTIONS. As determined by the Committee
in its sole discretion pursuant to its authority under any of the Parent
Long-Term Incentive Plans, each Convertible Parent Option shall be converted at
the time of the Distribution into a Xxxxx Xxxxxxx Option, which shall be granted
pursuant to the Xxxxx Xxxxxxx Long-Term Incentive Plan and shall have a
Black-Scholes value equal to the Black-Scholes value of the Convertible Parent
Option as of the last trading date prior to the Distribution Date (as such
values are determined in the sole discretion of the Committee, whose
determination, notwithstanding anything herein to the contrary, shall be final,
binding and conclusive for all purposes under the applicable Parent Long-Term
Incentive Plan), assuming for this purpose that the remaining life of the
Convertible Parent Option is the remaining contractual life of such option and
subject to such other terms and conditions as the Committee may specify.
(c) INCENTIVE STOCK OPTIONS; FOREIGN GRANTS/AWARDS. To the
extent that any of the Parent Options described in Section 5.3(a) are "incentive
stock options," Parent shall use its commercially reasonable efforts to
preserve, at and after the Distribution, the value and tax treatment accorded to
such incentive stock options, and, to the extent that the Parent Awards
described in Section 5.3(d) below or any of the Parent Options described in
Section 5.3(a) or 5.3(b) are granted to non-U.S. employees under any domestic or
foreign equity-based incentive program sponsored by a Parent Entity, subject to
the provisions of such Sections 5.3(a), 5.3(b)
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and 5.3(d), Parent and Xxxxx Xxxxxxx shall use their commercially reasonable
efforts to preserve, at and after the Distribution, the value and tax treatment
accorded to such Parent Options and such Parent Awards granted to non-U.S.
employees under any domestic or foreign equity-based incentive program sponsored
by a Parent Entity. The parties hereby delegate to the Parent Executive Vice
President-Human Resources, for periods before the Distribution Date, the
authority to determine an appropriate methodology for adjusting such grants or
awards in a manner that is, to the extent possible, consistent with the
treatment of such awards and grants for U.S. employees.
(d) OTHER AWARDS.
(i) CONVERTIBLE PARENT RESTRICTED STOCK. As determined by
the Committee in its sole discretion pursuant to its authority under any of the
Parent Long-Term Incentive Plans, each share of Parent Restricted Stock held by
a Xxxxx Xxxxxxx Employee ("CONVERTIBLE RESTRICTED STOCK") shall be converted at
the Distribution into a number of shares of Xxxxx Xxxxxxx Restricted Stock,
rounded to the nearest whole share, required to be granted to the holder of such
Parent Restricted Stock in order that the fair value of such Xxxxx Xxxxxxx
Restricted Stock (as determined by the Committee in its sole discretion
following methods and assumptions consistent with SFAS 123) as of immediately
following the Distribution Date shall equal the fair value of the Parent
Restricted Stock immediately prior to the Distribution Date.
(ii) NON-CONVERTIBLE PARENT RESTRICTED STOCK. As
determined by the Committee in its sole discretion pursuant to its authority
under any of the Parent Long-Term Incentive Plans, each share of Parent
Restricted Stock that is not Convertible Restricted Stock shall be subject to
the same terms and conditions after the Distribution as the terms and conditions
applicable to such Parent Restricted Stock immediately prior to the
Distribution; PROVIDED, HOWEVER, that on the Close of the Distribution, the
holder of the Parent Restricted Stock shall receive a number of shares of Xxxxx
Xxxxxxx Common Stock determined in the manner set forth in Section 3.1 of the
Separation and Distribution Agreement. Notwithstanding anything in any award
agreement evidencing the grant of such Parent Restricted Stock to the contrary,
in no event shall the Xxxxx Xxxxxxx Common Stock received with respect to such
Parent Restricted Stock be subject to any restriction.
(iii) RESTRICTED STOCK UNITS. As determined by the
Committee in its sole discretion pursuant to its authority under any of the
Parent Long-Term Incentive Plans, each Parent Restricted Stock Unit shall be
subject to the same terms and conditions after the Distribution as the terms and
conditions applicable to such Parent Restricted Stock Unit immediately prior to
the Distribution; PROVIDED, HOWEVER, that from and after the Close of the
Distribution the number of shares of Parent Common Stock subject to such Parent
Restricted Stock Unit, rounded to the nearest whole share, shall be equal to the
product of (x) the number of shares of Parent Common Stock subject to such
Parent Restricted Stock Unit immediately prior to the Distribution Date and (y)
the quotient obtained by dividing the Parent Stock Value by the Parent Opening
Stock Value.
(e) AGGREGATE LIMIT. Notwithstanding any provision of this
Section 5.3 to the contrary, if the aggregate number of shares of Xxxxx Xxxxxxx
Common Stock subject to Xxxxx Xxxxxxx Options and the number of shares of Xxxxx
Xxxxxxx Restricted Stock issuable pursuant to
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Sections 5.3(b) and 5.3(d)(i) would exceed 8,000,000 in the aggregate, then the
number of shares of Xxxxx Xxxxxxx Common Stock subject to Xxxxx Xxxxxxx Options
and shares of Xxxxx Xxxxxxx Restricted Stock issuable under Sections 5.3(b) and
5.3(d)(i) shall be reduced on an individual pro rata grant-by-grant basis such
that 8,000,000 shares of Xxxxx Xxxxxxx Common Stock shall be subject to Xxxxx
Xxxxxxx Options and Xxxxx Xxxxxxx Awards issuable pursuant to Sections 5.3(b)
and 5.3(d)(i).
(f) MISCELLANEOUS OPTION AND OTHER AWARD TERMS.
(i) Parent and Xxxxx Xxxxxxx acknowledge that, in the
context of the Separation, the adjustment to Parent Options and the Parent
Awards as set forth in this Section 5.3 will be implemented, in part, by the
issuance of Xxxxx Xxxxxxx Options and Xxxxx Xxxxxxx Awards under the terms of
the Xxxxx Xxxxxxx Long-Term Incentive Plan. Accordingly, it is intended that, to
the extent of the issuance of such Xxxxx Xxxxxxx Options and Xxxxx Xxxxxxx
Awards in connection with the adjustments set forth in this Section 5.3, the
Xxxxx Xxxxxxx Long-Term Incentive Plan shall be considered a successor to the
Parent Long-Term Incentive Plan and to have assumed the obligation of the Parent
Long-Term Incentive Plan to make the adjustment of Parent Options and Parent
Awards as set forth in this Section 5.3.
(ii) After the Distribution Date, Parent Options and
Parent Awards adjusted pursuant to Section 5.3, regardless of by whom held,
shall be settled by Parent pursuant to the terms of the Parent Long-Term
Incentive Plan, and Xxxxx Xxxxxxx Options and Xxxxx Xxxxxxx Awards, regardless
of by whom held, shall be settled by Xxxxx Xxxxxxx pursuant to the terms of the
Xxxxx Xxxxxxx Long-Term Incentive Plan.
(iii) Parent or a Parent Entity shall claim the benefit of
federal, state, and local tax deductions related to the exercise of all adjusted
Parent Options and the vesting or settlement, as applicable, of Parent Awards
after the Distribution Date and none of Xxxxx Xxxxxxx or any Xxxxx Xxxxxxx
Entity shall claim any such tax deductions. After the Distribution Date, Parent
and the Parent Entities shall be responsible for the proper payroll tax
treatment and the proper reporting to the appropriate governmental authorities
of compensation relating to all option exercises of Parent Options and vesting
or settlement, as applicable, of Parent Awards.
(iv) Xxxxx Xxxxxxx or a Xxxxx Xxxxxxx Entity shall claim
the benefit of federal, state and local tax deductions related to the exercise
of Xxxxx Xxxxxxx Options and the vesting or settlement, as applicable, of Xxxxx
Xxxxxxx Awards after the Distribution Date and neither Parent nor any Parent
Entity shall claim any such tax deductions. After the Distribution Date, Xxxxx
Xxxxxxx and the Xxxxx Xxxxxxx Entities shall be responsible for the proper
payroll tax treatment and the proper reporting to the appropriate governmental
authorities of compensation relating to all option exercises of Xxxxx Xxxxxxx
Options and vesting or settlement, as applicable, of Xxxxx Xxxxxxx Awards.
(v) Parent and Xxxxx Xxxxxxx agree to act (or to take
such action) with respect to such federal, state, or local tax deductions, and
with respect to fulfilling the payroll tax and reporting obligations on
compensation as are reasonably necessary or appropriate to achieve, maintain
and/or preserve such tax results.
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(vi) If (A) as a result of a determination (as defined in
Section 1313 of the Code) or (B) in the opinion of nationally recognized tax
counsel to Parent or Xxxxx Xxxxxxx, which opinion and tax counsel are reasonably
acceptable to the other party hereto, as a result of final or pending Treasury
Regulations, Internal Revenue Service announcement or otherwise, in each case,
there is a substantial likelihood that the tax deductions related to the
exercise of Options or Awards under this Agreement and/or the payroll tax and
reporting obligations related to the exercise of Options or vesting or
settlement of Awards, will be inconsistent with all or any part of Section 5.3
above, the parties shall negotiate in good faith to restructure the arrangements
set forth herein so that (I) if, pursuant to the determination or opinion, a
party gets a tax deduction it was not entitled to claim under the terms of this
Agreement, that party shall pay over to the party entitled to claim the
deduction under the terms of this Agreement, as if and for the tax year(s)
recognized through a reduction in taxes due and/or the receipt of a refund in an
amount equal to the lesser of (X) its tax benefit and (Y) the benefit otherwise
available to the party entitled to such deduction under the terms of this
Agreement, as if and for the tax year(s) when such deduction would have resulted
in a reduction in taxes due and/or the receipt of a refund and (II) the
reporting and financial burden of the payroll taxes are, to the extent
practicable, as described above. Any such amounts shall be payable within 30
days of the filing of the return in which the benefit described in (X) or (Y) of
the preceding sentence, whichever is later, is reflected. If the parties are
unable to reach an agreement on how to restructure the arrangements set forth
herein within 90 days of such determination or the receipt of the opinion of
counsel described in the first sentence of this subparagraph (vi) such
disagreement shall be resolved by a nationally recognized law firm or accounting
firm ("INDEPENDENT THIRD PARTY"), selected in a manner similar to the procedure
set forth in Section 3(b)(iii) of the Tax Sharing Agreement, whose judgment
shall be conclusive and binding upon the parties. The cost of any Independent
Third Party shall be shared equally between the parties.
(g) WAITING PERIOD FOR EXERCISABILITY OF OPTIONS. The Parent
Options and Xxxxx Xxxxxxx Options shall not be exercisable during a period
beginning on a date prior to the Distribution Date determined by Parent in its
sole discretion, and continuing until the Parent Opening Stock Value and the
Xxxxx Xxxxxxx Common Stock Value are determined immediately after the
Distribution, or such longer period as Parent determines necessary to implement
the provisions of this Section 5.3.
(h) RESTRICTIVE COVENANTS. Following the Distribution Date,
Xxxxx Xxxxxxx shall use its reasonable best efforts to monitor the Xxxxx Xxxxxxx
Employees and Former Xxxxx Xxxxxxx Employees to determine whether any such Xxxxx
Xxxxxxx Employees or Former Xxxxx Xxxxxxx Employees have breached any of the
restrictive covenants in the agreements evidencing the terms of their Parent
Options and Parent Awards. As soon as practicable following Xxxxx Xxxxxxx'x
reasonable belief that a Xxxxx Xxxxxxx Employee or Former Xxxxx Xxxxxxx Employee
has breached any such covenant, Xxxxx Xxxxxxx shall provide Parent in writing
with the name and address of such employee or former employee and the name and
address of the enterprise in which such employee or former employee is believed
to have been engaged. Notwithstanding the foregoing or anything in any agreement
evidencing the terms of any Parent Options and Parent Awards to the contrary, it
shall not be a violation of any non-competition or non-solicitation of clients
or customers covenant for a holder of a Parent Option or Parent Award to engage
in acts on behalf of Xxxxx Xxxxxxx or a Xxxxx Xxxxxxx Entity that are otherwise
prohibited by the terms of such non-competition or non-solicitation of clients
or customers covenants.
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5.4 REGISTRATION REQUIREMENTS. As soon as possible following the time as
of which the Registration Statement (as defined in the Separation and
Distribution Agreement) is declared effective by the Securities and Exchange
Commission but in any case before the Distribution Date and before the date of
issuance or grant of any Xxxxx Xxxxxxx Option and/or shares of Xxxxx Xxxxxxx
Common Stock pursuant to this Article V, Xxxxx Xxxxxxx agrees that it shall file
a Form S-8 Registration Statement with respect to and cause to be registered
pursuant to the Securities Act of 1933, as amended, the shares of Xxxxx Xxxxxxx
Common Stock authorized for issuance under the Xxxxx Xxxxxxx Long-Term Incentive
Plan as required pursuant to such Act and any applicable rules or regulations
thereunder, with such registration to be effective prior to the Distribution
Date.
5.5 PARENT NON-QUALIFIED RETIREMENT PLANS. Effective as of the
Distribution Date, Xxxxx Xxxxxxx shall establish a non-qualified pension plan
(the "XXXXX XXXXXXX NON-QUALIFIED RETIREMENT PLAN") that is substantially
identical to the Parent Non-Qualified Retirement Plan to provide benefits to
Xxxxx Xxxxxxx Employees and Former Xxxxx Xxxxxxx Employees from and after the
Distribution Date who were participants in the Parent Non-Qualified Retirement
Plan as of immediately prior to the Distribution Date. Effective as of the
Distribution Date, Xxxxx Xxxxxxx shall assume and be solely responsible for all
Liabilities of Parent for, or relating to, benefits accrued through the
Distribution Date by or with respect to Xxxxx Xxxxxxx Employees and Former Xxxxx
Xxxxxxx Employees under the Parent Non-Qualified Retirement Plan and the Xxxxx
Xxxxxxx Non-Qualified Retirement Plan.
5.6 SEVERANCE PLANS. The Parent Severance Pay Program provides for the
payment of certain compensation and benefits in the event of the termination of
employment of the individual covered by the terms of such plans. As of the Close
of the Distribution Date, Parent shall retain all Liabilities relating to the
Parent Severance Pay Program and all Liabilities relating to, arising out of, or
resulting from claims incurred by or on behalf of any individual under such
plans. A Xxxxx Xxxxxxx Employee shall not be deemed to have terminated
employment for purposes of determining eligibility for benefits under the
Severance Pay Plan or other similar plans and programs in connection with or in
anticipation of the consummation of the transactions contemplated by the
Separation and Distribution Agreement, and shall cease to be covered thereby as
of the Close of the Distribution Date. Xxxxx Xxxxxxx shall be solely responsible
for all Liabilities in respect of all costs arising out of payments and benefits
relating to the termination or alleged termination of any Xxxxx Xxxxxxx
Employee's employment that occurs as a result of or in connection with or
following the consummation of the transactions contemplated by the Separation
and Distribution Agreement, including any amounts required to be paid (including
any payroll or other taxes), and the costs of providing benefits, under any
applicable severance, separation, redundancy, termination or similar plan,
program, practice, contract, agreement, law or regulation (such benefits to
include any medical or other welfare benefits, outplacement benefits, accrued
vacation, and taxes). The Parent shall retain all Liabilities with respect to
the termination of any Xxxxx Xxxxxxx Employee or Former Xxxxx Xxxxxxx employee
prior to the Distribution Date.
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ARTICLE VI
GENERAL AND ADMINISTRATIVE
6.1 SHARING OF PARTICIPANT INFORMATION. Parent and Xxxxx Xxxxxxx shall
share, and Parent shall cause each other Parent Entity to share, and Xxxxx
Xxxxxxx shall cause each other Xxxxx Xxxxxxx Entity to share with each other and
their respective agents and vendors (without obtaining releases) all participant
information necessary for the efficient and accurate administration of each of
the Xxxxx Xxxxxxx Benefit Plans and the Parent Benefit Plans. Parent and Xxxxx
Xxxxxxx and their respective authorized agents shall, subject to applicable
laws, be given reasonable and timely access to, and may make copies of, all
information relating to the subjects of this Agreement in the custody of the
other party, to the extent necessary for such administration. Until the Close of
the Distribution Date, all participant information shall be provided in the
manner and medium applicable to Participating Companies in Benefit Plans of
Parent generally, and thereafter until December 31, 2003, all participant
information shall be provided in a manner and medium as may be mutually agreed
to by Parent and Xxxxx Xxxxxxx.
6.2 REASONABLE EFFORTS/COOPERATION. Each of the parties hereto will use
its commercially reasonable efforts to promptly take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate the transactions
contemplated by this Agreement. Each of the parties hereto shall cooperate fully
on any issue relating to the transactions contemplated by this Agreement for
which the other party seeks a determination letter or private letter ruling from
the Internal Revenue Service, an advisory opinion from the Department of Labor
or any other filing, consent or approval with respect to or by a governmental
agency.
6.3 NO THIRD-PARTY BENEFICIARIES. This Agreement is solely for the
benefit of the Parties and is not intended to confer upon any other Persons any
rights or remedies hereunder. Except as expressly provided in this Agreement,
nothing in this Agreement shall preclude Parent or any other Parent Entity, at
any time after the Close of the Distribution Date, from amending, merging,
modifying, terminating, eliminating, reducing, or otherwise altering in any
respect any Parent Benefit Plan, any benefit under any Benefit Plan or any
trust, insurance policy or funding vehicle related to any Parent Benefit Plan.
Except as expressly provided in this Agreement, nothing in this Agreement shall
preclude Xxxxx Xxxxxxx or any other Xxxxx Xxxxxxx Entity, at any time after the
Close of the Distribution Date, from amending, merging, modifying, terminating,
eliminating, reducing, or otherwise altering in any respect any Xxxxx Xxxxxxx
Benefit Plan, any benefit under any Benefit Plan or any trust, insurance policy
or funding vehicle related to any Xxxxx Xxxxxxx Benefit Plan.
6.4 AUDIT RIGHTS WITH RESPECT TO INFORMATION PROVIDED.
(a) Each of Parent and Xxxxx Xxxxxxx, and their duly authorized
representatives, shall have the right to conduct reasonable audits with respect
to all information required to be provided to it by the other party under this
Agreement. The party conducting the audit (the "AUDITING PARTY") may adopt
reasonable procedures and guidelines for conducting audits and the selection of
audit representatives under this Section 6.4. The Auditing Party shall have the
right to make copies of any records at its expense, subject to any restrictions
imposed by applicable laws and to any confidentiality provisions set forth in
the Separation and Distribution
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Agreement, which are incorporated by reference herein. The party being audited
shall provide the Auditing Party's representatives with reasonable access during
normal business hours to its operations, computer systems and paper and
electronic files, and provide workspace to its representatives. After any audit
is completed, the party being audited shall have the right to review a draft of
the audit findings and to comment on those findings in writing within ten
business days after receiving such draft.
(b) The Auditing Party's audit rights under this Section 6.4
shall include the right to audit, or participate in an audit facilitated by the
party being audited, of any Subsidiaries and Affiliates of the party being
audited and to require the other party to request any benefit providers and
third parties with whom the party being audited has a relationship, or agents of
such party, to agree to such an audit to the extent any such persons are
affected by or addressed in this Agreement (collectively, the "NON-PARTIES").
The party being audited shall, upon written request from the Auditing Party,
provide an individual (at the Auditing Party's expense) to supervise any audit
of a Non-party. The Auditing Party shall be responsible for supplying, at the
Auditing Party's expense, additional personnel sufficient to complete the audit
in a reasonably timely manner. The responsibility of the party being audited
shall be limited to providing, at the Auditing Party's expense, a single
individual at each audited site for purposes of facilitating the audit.
6.5 FIDUCIARY MATTERS. It is acknowledged that actions required to be
taken pursuant to this Agreement may be subject to fiduciary duties or standards
of conduct under ERISA or other applicable law, and no party shall be deemed to
be in violation of this Agreement if it fails to comply with any provisions
hereof based upon its good faith determination that to do so would violate such
a fiduciary duty or standard. Each party shall be responsible for taking such
actions as are deemed necessary and appropriate to comply with its own fiduciary
responsibilities and shall fully release and indemnify the other party for any
Liabilities caused by the failure to satisfy any such responsibility.
6.6 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, the parties hereto shall use their reasonable best efforts to
implement the applicable provisions of this Agreement to the full extent
practicable. If any provision of this Agreement cannot be implemented due to the
failure of such third party to consent, the parties hereto shall negotiate in
good faith to implement the provision in a mutually satisfactory manner. The
phrase "reasonable best efforts" as used herein shall not be construed to
require any party to incur any non-routine or unreasonable expense or Liability
or to waive any right.
ARTICLE VII
MISCELLANEOUS
7.1 EFFECT IF DISTRIBUTION DOES NOT OCCUR. If the Separation and
Distribution Agreement is terminated prior to the Distribution Date, then all
actions and events that are, under this Agreement, to be taken or occur
effective immediately prior to or as of the Close of the Distribution Date, or
Immediately after the Distribution Date, or otherwise in connection with
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the Separation Transactions shall not be taken or occur except to the extent
specifically agreed by Parent and Xxxxx Xxxxxxx.
7.2 RELATIONSHIP OF PARTIES. Nothing in this Agreement shall be deemed
or construed by the parties or any third party as creating the relationship of
principal and agent, partnership or joint venture between the parties, it being
understood and agreed that no provision contained herein, and no act of the
parties, shall be deemed to create any relationship between the parties other
than the relationship set forth herein.
7.3 AFFILIATES. Each of Parent and Xxxxx Xxxxxxx shall cause to be
performed, and hereby guarantees the performance of, all actions, agreements and
obligations set forth in this Agreement to be performed by another Parent Entity
or a Xxxxx Xxxxxxx Entity, respectively.
7.4 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given to a
party when (a) delivered to the appropriate address by hand or by nationally
recognized overnight courier service (costs prepaid); (b) sent by facsimile with
confirmation of transmission by the transmitting equipment; or (c) received or
rejected by the addressee, if sent by certified mail, return receipt requested,
in each case to the following addresses and facsimile numbers and marked to the
attention of the person (by name or title) designated below (or to such other
address, facsimile number or person as a party may designate by notice to the
other parties):
(a) if to Parent:
U.S. Bancorp
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
with copies to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx
Facsimile No.: (000) 000-0000
(b) if to Xxxxx Xxxxxxx:
Xxxxx Xxxxxxx Companies
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
7.5 INCORPORATION OF SEPARATION AND DISTRIBUTION AGREEMENT PROVISIONS.
The following provisions of the Separation and Distribution Agreement are hereby
incorporated
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herein by reference, and unless otherwise expressly specified herein, such
provisions shall apply as if fully set forth herein (references in this Section
7.5 to an "Article" or "Section" shall mean Articles or Sections of the
Separation and Distribution Agreement, and references in the material
incorporated herein by reference shall be references to the Separation and
Distribution Agreement): Article IV (relating to Survival and Indemnification);
Article V (relating to Certain Additional Covenants); Article VI (relating to
Access to Information); Article VII (relating to No Representations or
Warranties); Article VIII (relating to Terminations); Article IX (relating to
Miscellaneous).
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IN WITNESS WHEREOF, the parties have caused this
Employee Benefits
Agreement to be duly executed as of the day and year first above written.
U.S. BANCORP
By:
-------------------------------
Name:
Title:
XXXXX XXXXXXX COMPANIES
By:
-------------------------------
Name:
Title:
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