Exhibit 10.10
FMC Corporation
Executive Severance Plan
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(As Amended and Restated Effective as of May 1, 2001)
1. History and Purpose. The Company adopted the Plan in 1983 and amended and
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restated in 1997 and as of January 1, 2000. The Plan is hereby amended and
restated as of May 1, 2001. The purpose of the Plan is to assure the Company
that it will have the continued dedication and the availability of objective
advice and counsel from key executives of the Company, notwithstanding the
possibility, threat or occurrence of a bid to take over control of the Company.
The Board believes it is imperative that, if the Company receives any
proposals from a third person concerning a possible business combination with
the Company or the acquisition of the Company's equity securities, both the
Company and the Board be able to rely upon key executives to continue in their
positions and to be available for advice, without concern that those individuals
might be distracted by their own personal financial situations and the risks to
themselves created by the proposal.
If the Company receives any such proposal, key executives will be called
upon to assist in assessing the proposal, to advise management and the Board
regarding whether the proposal is in the best interest of the Company and its
stockholders, and to take such other actions as the Board might deem
appropriate.
2. Eligible Executives. The following individuals will be Participants:
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a. the Chairman of the Board;
b. the President, the Executive Vice Presidents, and the Senior Vice
Presidents of the Company;
c. the Group and Regional Managers of the Company;
d. other officers of the Company, except Assistant Secretaries and
Assistant Treasurers;
e. Division Managers of the Company; and
f. other key executives of the Company and its Affiliates who are from
time to time named as Participants by the Committee in its sole discretion.
A Participant will cease to be a Participant if and when the Committee
determines he or she should no longer be a Participant. The Committee will not
determine that a Participant has ceased to be a Participant during any period
that the Company knows a Person has taken steps reasonably calculated to effect
a Change in Control, and before the Board has determined that that Person has
abandoned or terminated its efforts to effect a Change in Control. The decision
of the Board that a Person has abandoned or terminated its efforts to effect a
Change in Control will be conclusive and binding on all Participants.
3. Terms of the Plan. The terms of the Plan are as set forth in the forms of
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Agreement attached to this Plan, with Form IA applicable to Tier IA
Participants, Form I applicable to Tier I Participants, Form II applicable to
Tier II Participants and Form III applicable to Tier III Participants. The
Company will enter into Agreements with each Participant containing the terms
set forth in the applicable form. Once an individual becomes a Participant, for
periods prior to the date the Company and the Participant execute an Agreement,
the Participant will be entitled to participate in the Plan on the terms and
conditions set forth in the form of Agreement applicable to the Participant.
4. Certain Definitions. Capitalized terms used in this Plan will have the
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meanings set forth below.
a. Affiliate means a corporation or other entity controlled by,
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controlling or under common control with the Company, including,
without limitation, any corporation partnership, joint venture or
other entity during any period in which at least a fifty percent (50%)
voting or profits interest is owned, directly or indirectly, by the
Company or any successor to the Company.
b. Agreement means the executive severance agreements, in the forms
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attached to the Plan, that the Company enters into with Participants
to memorialize the terms of their entitlement to executive severance
benefits.
c. Board means the Board of Directors of the Company, as it is
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constituted from time to time.
d. Change in Control means the happening of any of the following events:
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(1) An acquisition by any Person of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of
twenty percent (20%) or more of either (A) the then outstanding shares
of common stock of the Company (the "Outstanding Company Common
Stock") or (B) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities");
excluding, however, the following: (i) any acquisition directly from
the Company, other than an acquisition by virtue of the exercise of a
conversion privilege unless the security being so converted was itself
acquired directly from the Company, (ii) any acquisition by the
Company, (iii) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any entity
controlled by the Company, or (iv) any acquisition pursuant to a
transaction which complies with Subsections (A), (B) and (C) of
Subsection (3) of this Section 4d;
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(2) A change in the composition of the Board such that the
individuals who, as of the Effective Date, constitute the Board (such
Board will be hereinafter referred to as the "Incumbent Board") cease
for any reason to constitute at least a majority of the Board;
provided, however, for purposes of this Section 4(d), that any
individual who becomes a member of the Board subsequent to the
Effective Date, whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least a majority
of those individuals who are members of the Board and who were also
members of the Incumbent Board (or deemed to be such pursuant to this
proviso) will be considered as though such individual were a member of
the Incumbent Board; but, provided further, that any such individual
whose initial assumption of office occurs as a result of either an
actual or threatened election contest (as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board will not be so considered as a
member of the Incumbent Board;
(3) Consummation of a reorganization, merger or consolidation,
sale or other disposition of all or substantially all of the assets of
the Company or acquisition by the Company of the assets or stock of
another entity ("Corporate Transaction"); excluding, however, such a
Corporate Transaction pursuant to which (A) all or substantially all
of the individuals and entities who are the beneficial owners,
respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such Corporate
Transaction will beneficially own, directly or indirectly, more than
sixty percent (60%) of, respectively, the outstanding shares of common
stock, and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such Corporate
Transaction (including, without limitation, a corporation which as a
result of such transaction owns the Company or all or substantially
all of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Corporate Transaction, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be, (B) no Person (other than the Company,
any employee benefit plan (or related trust) of the Company or such
corporation resulting from such Corporate Transaction) will
beneficially own, directly or indirectly, twenty percent (20%) or more
of, respectively, the outstanding shares of common stock of the
corporation resulting from such Corporate Transaction or the combined
voting power of the outstanding voting securities of such corporation
entitled to vote generally in the election of directors except to the
extent that such ownership existed prior to the Corporate Transaction,
and (C) individuals who were members of the Incumbent Board will
constitute at least a majority of the members of the board of
directors of the corporation resulting from such Corporate
Transaction; or
(4) The approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
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e. Committee means the Compensation and Organization Committee of the
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Board, or any other committee of the Board that has, on the date of
termination, the duties and responsibilities delegated to the
Compensation and Organization Committee as of the Effective Date.
f. Company means FMC Corporation, a Delaware Corporation, or any
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successor thereto.
g. Distribution means FMC's distribution of its interest in the Company.
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h. Effective Date means May 1, 2001, the date the Plan was adopted by the
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Board.
i. Exchange Act means the Securities Exchange Act of 1934, as amended, or
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any successor thereto.
j. FMC means FMC Corporation, a Delaware corporation.
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k. IPO means the initial registered public offering by the Company of
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shares of common stock of the Company.
l. Participant means one of the Tier IA Participants, Tier I
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Participants, Tier II Participants or Tier III Participants.
m. Person has the meaning ascribed to such term in Section 3(a)(9) of the
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Exchange Act and used in Sections 13(d) and 14(d) thereof, including a
"group" as provided in Section 13(d) thereof.
n. Plan means the FMC Corporation Executive Severance Plan, as set forth
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herein and as hereinafter amended from time to time.
o. Tier IA Participants means the Chairman of the Board, the Chief
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Executive Officer and the President of the Company, and any other
employees of the Company or an Affiliate designated by the Committee
as Tier IA Participants.
p. Tier I Participants means the Executive Vice Presidents, Senior Vice
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Presidents, Group Managers, and International Regional Managers of the
Company, and any other employees of the Company or an Affiliate
designated by the Committee as Tier I Participants.
q. Tier II Participants means all officers of the Company other than
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Assistant Secretaries and Assistant Treasurers, and any other
employees of the Company or an Affiliate designated by the Committee
to be Tier II Participants.
r. Tier III Participants means Division Managers of the Company and any
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other employees of the Company or an Affiliate designated by the
Committee to be Tier
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III Participants, and any other employees of the Company or an
Affiliate designated by the Committee as Tier III Participants.
5. Trust. The Company will create a trust in accordance with the terms of the
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forms of Agreement. The trust will have such assets as the forms of Agreement
provide. Any assets contained in the trust will, at all times, be specifically
subject to the claims of the Company's general creditors in the event of
bankruptcy or insolvency. The trust document must specifically state that any
assets held under it will be subject to the claims of the Company's general
creditors in the event of bankruptcy or insolvency, and must detail the required
procedure for notifying the trustee of the Company's bankruptcy or insolvency.
6. Termination and Amendment of the Plan. The Board or the Committee will have
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the power at any time, in its discretion, to amend, abandon or terminate the
Plan, in whole or in part. Notwithstanding the foregoing, no amendment,
abandonment or termination may modify, waive or discharge any provisions of the
Agreements, unless each affected Participant agrees in writing, signed by the
Participant and an authorized member of the Board or the Committee (or by either
or both parties' legal representatives or successors), to the modification,
waiver or discharge.
7. Governing Law. The validity, interpretation, construction and enforcement
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of this Plan will be governed by the laws of the State of Delaware, without
giving effect to that state's conflicts of laws principles. Notwithstanding the
foregoing, to the extent state laws are preempted by the laws of the United
States, the laws of the United States will control the validity, interpretation,
construction and enforcement of this Plan.
8. Administration by the Committee. The Committee is the administrator of the
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Plan, and has all powers necessary to carry out the Plan's provisions. Among
other things, the Committee has the authority, subject to the terms of the Plan
and the Agreements, to adopt, alter and replace administrative rules, guidelines
and practices governing the Plan, to interpret the terms and provisions of the
Plan and any Agreements and to take any action it deems appropriate for the
administration of the Plan. The Committee may act only by a majority of its
members then in office unless it allocates or delegates its authority to a
Committee member or other person to act on its behalf. The Committee may
allocate all or any portion of its responsibilities and powers to any one or
more of its members and may delegate all or any part of its responsibilities and
powers to any other person or persons. Any such allocation or delegation may be
revoked by the Committee at any time. The regularly kept records of the Company
and its Affiliates will be final, conclusive and binding on all persons
regarding a Participant's date and length of service, amount of compensation and
the manner of its payment, type and length of absences from work and all other
matters contained in those records. Any authority granted to the Committee may
also be exercised by the Board. To the extent that any permitted action taken
by the Board conflicts with action taken by the Committee, the Board action will
control.
9. Incapacity. If any person entitled to a distribution under the Plan is
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deemed by the Company or the Committee or their delegates to be incapable of
personally receiving and giving a valid receipt for the distribution, then,
unless and until a duly appointed guardian or other representative of the person
claims the distribution, the Company or its delegate may pay the
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distribution or any part of it to any other person or institution then
contributing toward or providing for the care and maintenance of the person
entitled to the distribution. Any payment pursuant to the preceding payment will
be a payment for the account of the person entitled to it, and a complete
discharge of the Company, the Committee, their delegates and the Plan from any
liability for the payment.
10. Indemnification. The Company and each Affiliate will indemnify and hold
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harmless each member of the Committee, or any employee of the Company or any
Affiliate (to the extent not indemnified or saved harmless under any liability
insurance or any other indemnification arrangement) from any and all claims,
losses, liabilities, costs and expenses (including attorneys' fees) arising out
of any actual or alleged act or failure to act made in good faith pursuant to
the provisions of the Plan or the trust, including expenses reasonably incurred
in the defense of any claim regarding the administration of the Plan or the
trust. Notwithstanding the foregoing, no indemnification or defense will be
provided under this Plan or trust to any person, regarding any conduct that has
been judicially determined, or agreed by the parties, either to have constituted
willful misconduct by that person, or to have resulted in his or her receipt of
personal profit or advantage to which he or she was not entitled.
11. Limitations on Liability. Notwithstanding any of the preceding provisions
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of this Plan, neither the Company, the Committee nor any individual acting as an
employee or agent of the Company will be liable to any Participant, former
Participant or other person for any claim, loss, liability or expense incurred
in connection with the Plan, other than claims for benefits payable under any
Agreement.
12. Unclaimed Benefit. If all or any portion of a distribution payable to a
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Participant remains unpaid five years after it became payable because the
Committee was unable to locate the Participant, after sending a registered
letter, return receipt requested, to the last known address of the Participant,
then the amount payable to the Participant will become a forfeiture, and will be
retained by the Company as part of its general assets.
IN WITNESS WHEREOF, the Company has caused this Plan to be executed in its
name and behalf on this 1st day of May, 2001.
FMC CORPORATION
By: Michael W. Murray
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Its: Vice President - Human Resources
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