Exhibit 10.7
FMC Corporation
Non-Qualified Savings and Investment Plan
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(As Amended and Restated Effective as of September 28, 2001)
Table of Contents
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Page No.
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Article I
Introduction.................................................................................... 1
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Section 1.1. Name; Purpose.............................................................. 1
Section 1.2. Administration of the Plan................................................. 1
Article II
Definitions..................................................................................... 2
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Section 2.1. Account.................................................................... 2
Section 2.2. Account Balance............................................................ 2
Section 2.3. Accounting Date............................................................ 2
Section 2.4. Adopting Affiliate......................................................... 2
Section 2.5. Affiliated Group........................................................... 2
Section 2.6. Board...................................................................... 2
Section 2.7. Code....................................................................... 2
Section 2.8. Committee.................................................................. 2
Section 2.9. Company.................................................................... 2
Section 2.10. Company Stock.............................................................. 2
Section 2.11. Compensation............................................................... 2
Section 2.12. Deferral Contributions..................................................... 2
Section 2.13. Deferral Contributions Account............................................. 3
Section 2.14. Distribution Date.......................................................... 3
Section 2.15. Effective Date............................................................. 3
Section 2.16. Employer................................................................... 3
Section 2.17. ERISA...................................................................... 3
Section 2.18. Excess Compensation........................................................ 3
Section 2.19. Full Deferral Contributions................................................ 3
Section 2.20. Matching Contributions..................................................... 3
Section 2.21. Matching Contributions Account............................................. 3
Section 2.22. Mirror Deferral Contributions.............................................. 3
Section 2.23. Participant ............................................................... 3
Section 2.24. Permitted Investment....................................................... 3
Section 2.25. Plan....................................................................... 3
Section 2.26. Plan Year.................................................................. 3
Section 2.27. Savings Plan............................................................... 4
Section 2.28. Year of Service ........................................................... 4
Article III
Plan Participation ............................................................................. 4
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Section 3.1. Eligibility................................................................ 4
Section 3.2. Participation.............................................................. 4
Article IV
Deferral Contributions.......................................................................... 4
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Section 4.1. Deferral Contributions....................................................... 4
Section 4.2. Deferral Contributions Account............................................... 5
Article V
Matching Contributions.......................................................................... 5
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Section 5.1. Matching Contributions....................................................... 5
Section 5.2. Matching Contributions Account............................................... 5
Article VI
Deemed Earnings on Account Balances............................................................. 6
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Section 6.1. Deemed Investments........................................................... 6
Section 6.2. Crediting of Deferrals and Contributions..................................... 7
Section 6.3. Statement of Accounts........................................................ 7
Article VII
Establishment of Trust.......................................................................... 7
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Section 7.1. Establishment of Trust....................................................... 7
Section 7.2. Status of Trust.............................................................. 7
Article VIII
Distribution of Plan Benefits................................................................... 7
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Section 8.1. Vesting of Accounts......................................................... 7
Section 8.2. Payment of Account Balances.................................................. 8
Section 8.3. Distribution of Accounts of Certain Former Employees......................... 8
Section 8.4. Payments in the Event of Unforeseeable Emergency............................. 8
Section 8.5. Involuntary Distributions.................................................... 9
Section 8.6. Forfeitures.................................................................. 9
Section 8.7. Designation of Beneficiaries................................................. 9
Article IX
Amendment and Termination....................................................................... 10
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Section 9.1. Amendment.................................................................... 10
Section 9.2. Plan Termination............................................................. 10
Article X
General Provisions.............................................................................. 10
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Section 10.1. Non-Alienation of Benefits................................................... 10
Section 10.2. Withholding for Taxes........................................................ 10
Section 10.3. Immunity of Committee Members................................................ 10
Section 10.4. Plan Not to Affect Employment Relationship................................... 10
Section 10.5. Action by the Employers...................................................... 11
Section 11.6. Effect on Other Employee Benefit Plans....................................... 11
Section 10.7. Employer Liability........................................................... 11
Section 10.8. Notices...................................................................... 11
Section 10.9. Gender and Number; Headings.................................................. 11
Section 10.10 Controlling Law.............................................................. 11
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Section 10.11. Successors ............................................................... 11
Section 10.12. Severability ............................................................. 12
Section 10.13. Subsequent Changes ....................................................... 12
Section 10.14. Benefits Payable to Minors, Incompetents and Others ...................... 12
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FMC Corporation
Non-Qualified Savings and Investment Plan
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(As Amended and Restated Effective as of September 28, 2001)
Article I
Introduction
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Section 1.1. Name; Purpose. The Company established the FMC Deferred
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Compensation Equivalent Retirement and Thrift Plan effective as of January 1,
1977. That plan was amended and restated effective as of September 1, 1997 as
the FMC Corporation Non-Qualified Retirement and Thrift Plan, and it permitted a
select group of management or highly compensated employees to make deferrals and
receive contributions and benefits that could not be made or received under the
Savings Plan and FMC Corporation Employees' Retirement Program. As of October
22, 1993, the Company adopted the Deferred Compensation Plan of FMC Corporation,
to permit a select group of management or highly compensated employees to defer
certain types of compensation not taken into account under either the
Non-Qualified Retirement and Thrift Plan or the Savings Plan. Effective as of
December 31, 1997, the Non-Qualified Retirement and Thrift Plan and the Deferred
Compensation Plan were merged. Effective as of January 1, 2000, the merged plan
was restated to reflect certain administrative practices and changes, and name
of the merged plan was changed to better reflect its purpose to mirror the
Savings Plan. Effective as of September 28, 2001, the Plan was amended as
restated as reflected in the terms of this document as may be amended from time
to time. Although a rabbi trust may be established in connection with it, this
Plan constitutes an unfunded, non-qualified arrangement providing deferred
compensation to a select group of management or highly compensated employees (as
defined for purposes of Title I of ERISA) of the Company and of certain of the
Company's affiliates.
Section 1.2. Administration of the Plan. The Plan is administered by
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the Committee. The duties and authority of the Committee include:
(a) interpreting and applying the Plan's terms;
(b) adopting any rules or regulations the Committee deems necessary or
desirable to operate the Plan;
(c) making whatever determinations are permitted or required to
maintain or administer the Plan; and
(d) taking any other actions that prove necessary to administer the
Plan properly, in accordance with its terms.
Any decision of the Committee as to any matter within its authority will be
final, binding and conclusive upon the Company, any Employer and each
Participant, former Participant, designated beneficiary or other person claiming
under or through any Participant or designated beneficiary. No additional
authorization or ratification by the Board is necessary for the
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Committee to act on any matter within its authority. An action taken by the
Committee as to a Participant will not be binding on the Committee regarding an
action to be taken as to any other Participant. A member of the Committee may be
a Participant, but he or she may not participate in any decision that directly
affects his or her rights under the Plan, or the computation of his or her Plan
benefits. Each determination required or permitted under the Plan will be made
by the Committee in its sole and absolute discretion. The Committee may delegate
some or all of its duties or responsibilities.
Article II
Definitions
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Section 2.1. Account means a bookkeeping Account maintained by the
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Company for a Participant, including his or her Deferral Contributions Account
and Matching Contributions Account.
Section 2.2. Account Balance means the value, as of a specified date,
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of the Participant's Account, Deferral Contributions Account or Matching
Contributions Account.
Section 2.3. Accounting Date means each business day of the Plan
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Year.
Section 2.4. Adopting Affiliate means an entity that, together with
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the Company, is considered as a single employer under Section 414(b), (c), (m)
or (o) of the Code, and has adopted the Savings Plan for its employees.
Section 2.5. Affiliated Group the group that consists of the Company
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and every other entity that, together with the Company, is considered as a
single employer under Section 414(b), (c), (m) or (o) of the Code.
Section 2.6. Board means the Board of Directors of the Company.
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Section 2.7. Code means the Internal Revenue Code of 1986, as
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amended.
Section 2.8. Committee means the FMC Corporation Employee Welfare
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Benefits Plan Committee, or its delegate.
Section 2.9. Company means FMC Corporation.
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Section 2.10. Company Stock means the common stock of the Company.
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Section 2.11. Compensation has the same meaning as under the Savings
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Plan, except that it also includes amounts deferred under this Plan.
Section 2.12. Deferral Contributions means the Mirror Deferral
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Contributions and Full Deferral Contributions credited on behalf of a
Participant pursuant to Section 4.1.
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Section 2.13. Deferral Contributions Account means the Account
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maintained on behalf of a Participant to represent the amount of the Deferral
Contributions credited in his or her behalf, as adjusted to account for deemed
gains and losses, withdrawals and distributions.
Section 2.14. Distribution Date means the date the Company distributes
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its interest in FMC Technologies, Inc.
Section 2.15. Effective Date means September 28, 2001, the effective
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date of this amended and restated Plan.
Section 2.16 Employer means the Company and/or any Adopting
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Affiliate.
Section 2.17. ERISA means the Employee Retirement Income Security Act
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of 1974, as amended.
Section 2.18. Excess Compensation means an amount that would be
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Compensation, except that it exceeds the annual compensation limit under Section
401(a)(17), as adjusted, (for 2000, $170,000), as set forth in the Savings Plan.
Section 2.19. Full Deferral Contributions means amounts credited to a
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Participant pursuant to subsection 4.1(b).
Section 2.20. Matching Contributions means the contributions credited
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on behalf of a Participant pursuant to Section 5.1.
Section 2.21. Matching Contributions Account means the Account
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maintained on behalf of a Participant to represent the amount of Matching
Contributions credited in his or her behalf, as adjusted to account for deemed
gains and losses, withdrawals and distributions.
Section 2.22. Mirror Deferral Contributions means the contributions
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credited to a Participant pursuant to subsection 4.1(a).
Section 2.23. Participant means any eligible employee of an Employer
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who participates in the Plan pursuant to Article III.
Section 2.24. Permitted Investment means a notional fund or type of
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notional investment approved by the Committee for Plan purposes. Permitted
Investment will include Company Stock and stock of FMC Technologies, Inc.;
provided, however, that for periods beginning on or after the Distribution Date,
no contributions or transfers to the FMC Technologies, Inc. stock fund are
permitted.
Section 2.25. Plan means this FMC Corporation Non-Qualified Savings
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and Investment Plan (As Amended and Restated Effective as of January 1, 2000).
Section 2.26. Plan Year means the calendar year.
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Section 2.27. Savings Plan means the FMC Corporation Savings and
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Investment Plan, as amended from time to time.
Section 2.28. Year of Service means, as to a Participant, the
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Participant's number of calendar months of employment by the Affiliated Group
(including any interruption of employment of up to 12 months) divided by 12. A
partial month counts as a whole month, and any fractional year of service is
ignored. A period longer than 12 months for which a Participant does not receive
Compensation, including (without limitation) any unpaid leave of absence is not
counted in determining the Participant's Years of Service, nor does any other
interruption of employment longer than 12 months.
Article III
Plan Participation
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Section 3.1. Eligibility. An employee of an Employer will be eligible
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to participate in any Plan Year if he or she meets all of the following
conditions:
(a) the employee is part of a select group of management or highly
compensated employees, within the meaning of Title I of ERISA;
(b) the employee is eligible to participate in the Savings Plan for
the Plan Year;
(c) the employee is expected to receive Excess Compensation during
the Plan Year; and
(d) the Committee, or its delegate, designates the employee as
eligible to participate in the Plan.
Section 3.2. Participation. An employee who meets the conditions of
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Section 3.1 becomes a Participant by executing and filing with the Committee a
deferral election form, in the manner and at the time required under Article IV.
Once an individual is a Participant, he or she will remain a Participant for so
long as he or she has an Account Balance, although a Participant may continue to
make Deferral Contributions and receive allocations under the Plan only so long
as he or she remains an eligible employee.
Article IV
Deferral Contributions
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Section 4.1. Deferral Contributions. Each eligible employee who has
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made an election to defer a portion of his or her Compensation under the Savings
Plan for a Plan Year may elect to defer an additional amount under this Plan for
that Plan Year, as Mirror Deferral Contributions, Full Deferral Contributions,
or both.
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(a) A Mirror Deferral Contribution is an amount, between 1% and 20%
of the Participant's Compensation and Excess Compensation, that the
Participant cannot defer under the Savings Plan because it exceeds the
limit on deferrals under Code Section 402(g), represents a deferral of
Excess Compensation, or represents an amount that the Participant cannot
defer under the Savings Plan because of the limits of Code Section 415(c).
(b) A Full Deferral Contribution is an amount, between 1% and 80% of
the total of the Participant's Compensation and Excess Compensation.
A Participant's Mirror Deferral Contributions and Full Deferral Contributions
for a Plan Year may not exceed the sum of his or her Compensation and Excess
Compensation. A Participant must make his or her deferral election for a Plan
Year no later than the last day of the preceding Plan Year, and may not change
his or her deferral election during the Plan Year. Notwithstanding the
foregoing, when an employee first becomes an eligible employee, he or she may
make a deferral election no later than thirty days after becoming an eligible
employee, so long as the deferral election applies to Compensation and Excess
Compensation earned during the Plan Year after the date of the deferral
election.
4.2. Deferral Contributions Account. The Committee will establish and
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maintain a Deferral Contributions Account on behalf of each Participant who
elects to make Deferral Contributions. The Deferral Contributions Account will
be a bookkeeping account maintained by the Company, and will reflect the Mirror
Deferral Contributions and Full Deferral Contributions the Participant has
elected to make to the Plan, as adjusted pursuant to Article VI to reflect
deemed gains and losses, withdrawals and distributions.
Article V
Matching Contributions
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Section 5.1. Matching Contributions. Each Participant will be credited
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with a Matching Contribution in an amount equal to the matching contributions
that would have been made with respect to his or her Mirror Deferral
Contributions, if they had been made under the Savings Plan, at such time as
described in Section 6.2.
Section 5.2. Matching Contributions Account. The Committee will
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establish and maintain a Matching Contributions Account on behalf of each
Participant who is credited with Matching Contributions. The Matching
Contributions Account will be a bookkeeping account maintained by the Company,
and will reflect the Matching Contributions that have been credited to the
Participant, as adjusted pursuant to Article VI to reflect deemed gains and
losses, withdrawals and distributions.
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Article VI
Deemed Earnings on Account Balances
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Section 6.1. Deemed Investments.
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(a) Each Participant may designate from time to time, in the manner
prescribed by the Committee, that all or a portion of his or her Deferral
Contributions Account be deemed to be invested in one or more Permitted
Investments. The Committee will establish rules governing the dates as of
which amounts will be deemed to be invested in the Permitted Investments
chosen by the Participant, and the time and manner in which amounts will be
deemed to be transferred from one Permitted Investment to another, pursuant
to a Participant's election to change his or her deemed investments. The
Committee will also establish a default Permitted Investment, in which the
Deferral Contributions Account of a Participant who fails to make an
investment election will be deemed to be invested. Effective September 1,
1997, the Committee's Plan investment election rules permit a Participant
to transfer any or all of his or her Account (including any or all of his
or her Matching Contribution Account) out of the Company Stock Permitted
Investment and or the FMC Technologies, Inc. Permitted Investment. From and
after the Distribution Date, no contributions or transfers to the FMC
Technologies, Inc. Permitted Investment are permitted.
(b) All amounts credited to a Participant's Matching Contributions
Account will be deemed to be invested initially in Company Stock. For
periods beginning prior to September 1, 1997, a Participant was prohibited
from transferring any portion of his or her Matching Contributions Account
into a Permitted Investment other than Company Stock.
(c) Each Account will be deemed to receive all interest, dividends,
earnings and other property that would be received by it if it were
actually invested in the Permitted Investment in which it is deemed to be
invested. Similarly, each Account will be deemed to suffer all investment
losses and other diminutions it would suffer if it were actually invested
in the Permitted Investment in which it is deemed to be invested. Gains and
losses will be credited to or debited from each Account at the times and in
the manner specified by the Committee.
(d) Elections required or permitted to be made pursuant to this
Article VI must be made only by the Participant. Notwithstanding the
foregoing, if a Participant dies before his or her entire Account Balance
is distributed, or if the Committee determines that a Participant is
legally incompetent or otherwise incapable of managing his or her own
affairs, the Committee may itself make Plan elections on behalf of the
Participant, or may declare that the Participant's designated beneficiary,
legal representative or near relative will be permitted to make Plan
elections on behalf of the Participant.
(e) Neither the Company nor the Plan need make any Permitted
Investment. If, from time to time, the Company actually makes an investment
similar to a Permitted Investment, that investment will be solely for the
Company's own account, and the
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Participant will have no right, title or interest in that investment. Each
Participant has only the rights of an unsecured creditor of the Company or
any Employer, as to any amount owing to him or her under the Plan.
6.2. Crediting of Deferrals and Contributions. The Company will credit
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all Deferral Contributions to a Participant's Deferral Contributions Account
within a reasonable period of time after the date they would have been paid to
the Participant if the Participant had not elected to defer them. The Company
will credit all Matching Contributions made on a Participant's behalf to the
Participant's Matching Contributions Account within a reasonable period after
the date they would have been contributed to the Savings Plan, if they could
have been permitted allocated under that Plan.
6.3. Statement of Accounts. Within a reasonable period of time after
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the end of each calendar quarter, the Company will furnish each Participant with
a statement showing the value of his or her Account as of the end of that
calendar quarter.
Article VII
Establishment of Trust
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Section 7.1. Establishment of Trust. The Company may, in its sole
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discretion, establish a grantor trust in order to accumulate assets to pay Plan
obligations. The assets and income of any trust established under this Plan will
be subject to the claims of the Company's general creditors, and the Employer's
general creditors, but only to the extent they are attributable to the
contributions made on behalf of employees employed by such Employer. The
establishment or maintenance of a Plan trust will not affect the Employers'
liability to pay Plan benefits, except as and to the extent amounts from the
trust are actually used to pay a Participant's Plan benefits. If the Company
does establish a trust under the Plan, the Company will determine how much will
be contributed to the trust and when, and trust assets will be invested in
accordance with the terms of the trust.
Section 7.2. Status of Trust. A Participant will have no direct or
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secured claim in any asset of the trust, or in specific assets of the Company or
of his or her Employer, and will have the status of a general unsecured creditor
of his or her Employer, for any amounts due under this Plan.
Article VIII
Distribution of Plan Benefits
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Section 8.1. Vesting of Accounts. Each Participant will at all times
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be fully vested in his or her Deferral Contributions Account. A Participant's
vested interest in his or her Matching Contributions Account is determined in
the same manner, at the same time and to the same extent as his or her vested
interest in the matching contribution account under the Savings Plan.
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Section 8.2. Payment of Account Balances. All payments under this Plan
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shall be made in cash. This Section 8.2 governs payment of most Account
Balances. The Account Balances of certain former employees will be paid as
described in Section 8.3.
(a) Generally, the vested portion of a Participant's Account Balance
will be paid to him or her (or, if the Participant has died, to his or her
designated beneficiary) in cash, in a single lump sum, as of the last day
of the sixth calendar month after the calendar month in which the
Participant terminated employment with the Company and all other members of
the Affiliated Group. The only in-service withdrawals permitted under the
Plan are described in Section 8.4.
(b) Notwithstanding Section 8.2(a), a Participant to whom this Section
8.2 applies may make an irrevocable election to have the vested portion of
his or her Account paid in any form of distribution permitted under the
Savings Plan; provided, however, that a Participant may not elect to
receive a distribution in Company Stock of stock of FMC Technologies, Inc.
instead of cash. Payment under this Section 8.2(b) will begin as of the
last day of the sixth calendar month after the calendar month in which the
Participant terminated employment with the Company and all other members of
the Affiliated Group or, if earlier, within 90 days after the Participant's
death. A Participant must elect a form of payment under this Section 8.2(b)
no later than the last day of the first calendar month following the
calendar month in which the Participant terminated employment with the
Company and all other members of the Affiliated Group. Notwithstanding any
other provision of this Article VIII, the Committee may establish a minimum
amount of any installment payment to be made under the Plan.
Section 8.3. Distribution of Accounts of Certain Former Employees. The
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vested portions of the Accounts of certain Participants who terminated
employment with the Company and all other members of the Affiliated Group before
September 1, 1997 are payable pursuant to irrevocable elections made by such
Participants under the Plan before January 1, 1998 to have the vested portions
of their Accounts paid in distribution forms permitted under the Savings Plan,
beginning, in each case, at a later date selected by the Participant. The vested
portions of the Account of each Participant who made an irrevocable election
described in the preceding sentence will be distributed in the manner elected by
the Participant, with payments commencing at the time he or she elected or, if
earlier, within 90 days after his or her death. Notwithstanding any other
provision of this Article VIII, the Committee may establish a minimum amount of
any installment payment to be made to a Participant who made an election
described in this Section 8.3.
Section 8.4. Payments in the Event of Unforeseeable Emergency. A
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Participant may request, in the manner and within the time constraints
established by the Committee, to receive an emergency payment of some or all of
his or her vested Account Balance. The Committee will authorize an emergency
payment under this Section 8.4 only if the Participant experiences an
unforeseeable emergency. An emergency payment must be limited to the amount the
Participant reasonably needs to satisfy the unforeseeable emergency. An
unforeseeable emergency is severe financial hardship to the Participant
resulting from:
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(a) a sudden and unexpected illness or accident to the Participant or to
his or her dependent (as defined in Code Section 152(a));
(b) the Participant's losing his or her property due to casualty; or
(c) other similar extraordinary and unforeseeable circumstances arising as
a result of unforeseeable events beyond the Participant's control.
Whether a Participant suffers an unforeseeable emergency depends upon the facts
of each case; in no event, however, may the Participant receive an emergency
payment if his or her hardship is or may be relieved through reimbursement or
compensation by insurance or otherwise, by liquidation of the Participant's
assets (to the extent liquidation of those assets would not itself cause severe
financial hardship) or by ceasing to make deferrals under the Plan. The need to
send a Participant's child to college or the desire to purchase a home are not
unforeseeable emergencies.
Section 8.5. Involuntary Distributions. Notwithstanding the foregoing
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provisions of this Article VIII, the Committee may on its own initiative
authorize the Company to distribute to any Participant (or, if the Participant
has died, to his or her designated beneficiary) all or any part of the
Participant's vested Account Balance. Payment under the preceding sentence is
specifically authorized if there is a change in tax law, a published ruling or a
similar announcement issued by the Internal Revenue Service, a Treasury
Regulation, a decision by a court of competent jurisdiction involving a
Participant or designated beneficiary, or a closing agreement made under Code
Section 7121 involving a Participant, that the Committee determines will cause
the Participant to have or recognize income for federal income tax purposes as
to amounts deferred under this Plan.
Section 8.6. Forfeitures. The portion of a Participant's Matching
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Contributions Account that is not fully vested will become a forfeiture as and
to the same extent it would have become a forfeiture under the Savings Plan, if
the contributions to which it is attributable could have been allocated under
that plan, and will be applied in the same manner as if it had become a
forfeiture under the Savings Plan.
Section 8.7. Designation of Beneficiaries. Each Participant may name
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any person or persons to whom his or her vested Account Balance will be paid if
the Participant dies before they have been fully distributed. Each beneficiary
designation will revoke all prior beneficiary designations made by that
Participant. The Committee will designate the time and manner in which a
Participant must made a beneficiary designation, but will not require a
Participant to obtain the consent of his or her current beneficiary to the
naming a new or additional beneficiaries. A beneficiary designation will be
effective only if it meets the requirements specified by the Committee. If a
Participant fails to designate a beneficiary, or if the Participant's
beneficiary dies before the Participant does or before receiving the full amount
to which he or she is entitled, the Committee may, in its discretion, pay the
vested portion of the Participant's Account Balance (or the portion that remains
unpaid) to one or more of the Participant's relatives by blood, adoption or
marriage, in the proportions it determines, or to the
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legal representative of the estate of the later to die of the Participant and
his or her designated beneficiary.
Article IX
Amendment and Termination
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Amendment and Termination. The Company has the right to amend or
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terminate the Plan by action of the Board, or by action of an officer or Company
employee or committee authorized by the Board to amend the Plan. Any Employer
may terminate its participation in the Plan at any time by appropriate action,
in its discretion. The Plan will automatically terminate as to any Employer upon
termination of the Employer's participation in the Savings Plan. Notwithstanding
the foregoing, no Plan amendment or termination may adversely affect the right
of a Participant (or his or her designated beneficiary) to vested benefits
already accrued in the Participant's behalf under this Plan, unless the
Participant (or beneficiary) consents to the amendment.
Article X
General Provisions
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Section 10.1. Non-Alienation of Benefits. A Participant's rights to
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the amounts credited to his or her Account under the Plan cannot be granted,
transferred, pledged or otherwise assigned, in whole or in part, by the
voluntary or involuntary acts of any person, or by operation of law, and will
not be liable or taken for any obligation of the Participant. Any attempted
grant, transfer, pledge or assignment of a Participant's rights to Plan benefits
will be null and void and without any legal effect.
Section 10.2. Withholding for Taxes. Notwithstanding anything
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contained in this Plan to the contrary, each Employer will withhold from any
distribution, deferral or accrual under the Plan whatever amount or amounts may
be required to comply with the tax withholding provisions of the Code or any
State income tax act for purposes of paying any income, estate, inheritance,
employment or other tax attributable to any amounts distributable or creditable
under the Plan.
Section 10.3. Immunity of Committee Members. The members of the
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Committee may rely upon any information, report or opinion supplied to them by
any officer of an Employer or any legal counsel, independent public accountant
or actuary, and will be fully protected in relying on any such information,
report or opinion. No member of the Committee will have any liability to the
Company, any Employer or any Participant, former Participant, designated
beneficiary, person claiming under or through any Participant or designated
beneficiary, or other person interested or concerned in connection with any Plan
decision made by that member of the Committee, so long as the decision was based
on any such information, report or opinion, and the Committee member relied on
it in good faith.
Section 10.4. Plan Not to Affect Employment Relationship. Neither the
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adoption of the Plan nor its operation will in any way affect the right and
power of an Employer to dismiss
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or otherwise terminate the employment, or change the terms of employment or
amount of compensation, of any Participant at any time, for any reason or
without cause. By accepting any payment under this Plan, each Participant,
former Participant, and designated beneficiary, and each person claiming under
or through a Participant, former Participant or designated beneficiary, is
conclusively bound by any action or decision taken or made under the Plan by the
Committee, the Company or any Employer
Section 10.5. Action by the Employers. Any action required or
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permitted to be taken under the Plan by an Employer must be taken by its Board
of Directors, by a duly authorized committee of its Board of Directors, or by a
person or persons authorized by its Board of Directors or an authorized
committee.
Section 10.6. Effect on Other Employee Benefit Plans. Any
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compensation deferred or accrued under this Plan, and any amount credited to a
Participant's Account under this Plan, will not be included in the Participant's
compensation or earnings for purposes of computing benefits under any other
employee benefit plan maintained or contributed to by the Employer, except as
and to the extent required under the terms of that employee benefit plan or
applicable law.
Section 10.7. Employer Liability. Each Employer is liable to pay the
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Plan benefits earned or accrued for its eligible employees who are Participants.
With the consent of the Board (or of a duly appointed delegate of the Board),
any Employer may assume any other Employer's Plan liabilities and obligations.
To the extent that an Employer assumes another Employer's Plan liabilities or
obligations, the second Employer will be released from any continuing obligation
under the Plan. At the Company's request, a Participant or designated
beneficiary will sign any documents reasonably required by the Company to
effectuate the purposes of this Section 10.7.
Section 10.8. Notices. Any notice required to be given by the
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Company, any Employer or the Committee must be in writing and must be delivered
in person, by registered mail, return receipt requested, or by regular mail,
telecopy or electronic mail. Any notice given by mail will be deemed to have
been given on the date it was mailed, correctly addressed to the last known
address of the person to whom the notice is to be given.
Section 10.9. Gender, Number and Headings. Except where the context
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otherwise requires, in this Plan the masculine gender includes the feminine, the
feminine includes the masculine, the singular includes the plural, and the
plural includes the singular. Headings are inserted for convenience only, are
not part of the Plan, and are not to be considered in the Plan's construction.
Section 10.10. Controlling Law. The Plan will be construed according
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to the internal laws of Delaware, to the extent they are not preempted by any
applicable federal law.
Section 10.11. Successors. The Plan is binding on all persons entitled
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to benefits under it, on their respective heirs and legal representatives, on
the Committee and its successor,
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and on any Employer and its successor, whether by way of merger, consolidation,
purchase or otherwise.
Section 10.12. Severability. If any provision of the Plan is held to
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be illegal or invalid for any reason, that illegality or invalidity will not
affect the remaining provisions of the Plan, and the Plan will be enforced and
administered, from that point forward, as if the invalid provisions had never
been part of it.
Section 10.13. Subsequent Changes. All benefits to which any
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Participant, designated beneficiary or other person is entitled under this Plan
will be determined according to the terms of the Plan as in effect when the
Participant ceases to be an eligible employee, and will not be affected by any
subsequent change in Plan provisions, unless the Participant again becomes an
eligible employee, or unless and to the extent the subsequent change expressly
applies to the Participant, his or her designated beneficiary or other person
claiming through or on behalf of the Participant or designated beneficiary.
Section 10.14. Benefits Payable to Minors, Incompetents and Others. If
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any benefit is payable to a minor, an incompetent, or a person otherwise under a
legal disability, or to a person the Committee reasonably believes to be
physically or mentally incapable of handling and disposing of his or her
property, the Committee has the power to apply all or any part of the benefit
directly to the care, comfort, maintenance, support, education or use of the
person, or to pay all or any part of the benefit to the person's parent,
guardian, committee, conservator or other legal representative, to the
individual with whom the person is living, or to any other individual or entity
having the care and control of the person. The Plan, the Committee, the Company,
any Employer and their employees and agents will have fully discharged their
responsibilities to the Participant or beneficiary entitled to a payment by
making payment under this Section 10.14.
IN WITNESS WHEREOF, the Company has caused this amended and restated Plan
to be executed in its name and behalf on this 28/th/ day of September, 2001.
FMC CORPORATION
By: /s/ Michael W. Murray
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Member, Employee Welfare Benefits Plan
Committee
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