Exhibit 10.11
FMC CORPORATION
EXECUTIVE SEVERANCE PLAN
------------------------
(As Amended and Restated Effective April 18, 1997)
1. Statement of Purpose. The purpose of the FMC Corporation Executive
Severance Plan ("Plan") is to assure FMC Corporation ("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.
In the event the Company receives any proposals from a third person
concerning a possible business combination with the Company, or acquisition of
the Company's equity securities, the Board of Directors believes it imperative
that the Company and the Board of Directors be able to rely upon key executives
to continue in their positions and be available for advice without concern that
those individuals might be distracted by their own personal financial situation
and risks created by such a proposal.
Should the Company receive any such proposal, key executives will be called
upon to assist in the assessment of the proposal, advise management and the
Board of Directors as to whether the proposal would be in the best interest of
the Company and its stockholders and to take such other actions as the Board of
Directors might determine appropriate.
2. Eligible Executives. Participants under this Plan shall consist of the
Chairman of the Board, the President, the Executive and Senior Vice Presidents,
Group and Regional Managers, other officers (except Assistant Secretaries and
Assistant Treasurers) and Division Managers of the Company and those other key
executives of the Company and its Subsidiaries who are from time to time
designated to be included within this Plan by the Committee in its sole
discretion. A Participant shall cease to be a Participant in the Plan upon the
determination of the Committee. No determination that a Participant has ceased
to be a Participant shall be made, and if made shall have no effect, during any
period of time when the Company has knowledge that any Person, as that term is
defined in Sections 13(d)(3) and 14(d)(2) of the Securities Exchange Act of
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1934, as amended ("Exchange Act"), has taken steps reasonably calculated to
effect a Change In Control of the Company (as defined below) until, in the
opinion of the Board of Directors, the Person has abandoned or terminated its
efforts to effect a Change In Control. Any decision by the Board of Directors
that the Person has abandoned or terminated its efforts to effect a Change In
Control shall be conclusive and binding on the Participants.
3. Terms of the Plan. The terms of the Plan are as set forth in the forms of
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 shall enter into Executive Severance Agreements (the
"Agreements") with each Participant containing the terms set forth in the
applicable form. Even though the Company or a Participant has not executed an
Agreement, the Participant shall 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 but not defined
above shall have the meaning set forth below:
a. Board of Directors means the duly elected Board of Directors of FMC
Corporation as it is constituted from time to time.
b. Change In Control of the Company shall be deemed to have occurred as of
the first day that any one or more of the following conditions is satisfied:
(1) The "beneficial ownership" (as defined in Rule 13d-3 under the
Exchange Act) of securities representing more than 20 percent (20%) of the
combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors (the
"Company Voting Securities") is acquired by a Person (other than the
Company, any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or an affiliate thereof, any
corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of stock
of the
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Company); provided, however, that any acquisition from the Company or any
acquisition pursuant to a transaction which complies with clauses (i), (ii)
and (iii) of paragraph (3) of this section shall not be a Change in Control
under this paragraph; or
(2) Individuals who, as of the date hereof, constitute the Board of
Directors (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided, however, that any individual
becoming a director subsequent to the date hereof whose election, or
nomination for election by the Company's stockholders, was approved by a
vote of at least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or
other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board; or
(3) Consummation by the Company of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of
the assets of the Company or the acquisition of assets or stock of another
entity (a "Business Combination"), in each case, unless immediately
following such Business Combination: (i) more than 60% of the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors of (x) the corporation resulting
from such Business Combination (the "Surviving Corporation"), or (y) if
applicable, 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 (the "Parent Corporation"), is
represented, directly or indirectly by Company Voting Securities
outstanding immediately prior to such Business Combination (or, if
applicable, is represented by shares into which such Company Voting
Securities were converted pursuant to such Business Combination),
and such voting power among the holders thereof is in substantially the
same proportions as their ownership, immediately prior to such Business
Combination, of the Company Voting Securities, (ii) no Person (excluding
any employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, 20% or more of the combined voting power of
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the then outstanding voting securities eligible to elect directors of the
Parent Corporation (or, if there is no Parent Corporation, the Surviving
Corporation) except to the extent that such ownership of the Company
existed prior to the Business Combination and (iii) at least a majority of
the members of the board of directors of the Parent Corporation (or, if
there is no Parent Corporation, the Surviving Corporation) were members of
the Incumbent Board at the time of the execution of the initial agreement,
or of the action of the Board, providing for such Business Combination; or
(4) Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
However, in no event shall a Change in Control be deemed to have occurred,
with respect to a Participant, if the Participant is part of a purchasing group
which consummates the Change-in-Control transaction. The Participant shall be
deemed "part of a purchasing group" for purposes of the preceding sentence if
the Participant is an equity participant in the purchasing Company or group
(except for: (i) passive ownership of less than three percent (3%) of the stock
of the purchasing company; or (ii) ownership of equity participation in the
purchasing company or group which in otherwise not significant, as determined
prior to the Change in Control by a majority of the nonemployee continuing
Directors).
c. Committee shall mean the Compensation and Organization Committee of
the Board of Directors or such other Committee of the Board of Directors as on
the Date of Termination has the duties and responsibilities presently delegated
to the Compensation and Organization Committee.
d. Participant means one of the Tier IA Participants, Tier I
Participants, Tier II Participants, or Tier III Participants.
e. Subsidiary means any domestic or foreign corporation, a majority of
whose voting shares is owned directly or indirectly by the Company or by one or
more other Subsidiaries or by a combination thereof.
f. Tier IA Participants means the Chairman of the Board and Chief
Executive Officer and the President.
g. Tier I Participants means the Executive Vice Presidents, Senior Vice
Presidents, Group Managers, International Regional Managers and such other
employees of
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the Company or a Subsidiary as are designated by the Committee to
be Participants.
h. Tier II Participants means all officers of the Company (other
than Assistant Secretaries and Assistant Treasurers) and such other employees of
the Company or a Subsidiary as are designated by the Committee to be
Participants.
i. Tier III Participants means Division Managers and such other
employees of the Company or a Subsidiary as are designated by the Committee to
be Participants.
5. Trust. As soon as practical, the Company shall create a trust in accordance
with the terms of the forms of Agreement. The trust shall have such assets as
the forms of Agreement provide. Any assets contained in the trust shall, at all
times, be specifically subject to the claims of the Company's general creditors
in the event of bankruptcy or insolvency; such terms to be specifically defined
within the provisions of the trust, along with the required procedure for
notifying the Trustee of any bankruptcy or insolvency.
6. Termination and Amendment of this Plan. The Board of Directors or the
Committee shall have power at any time, in their discretion, to amend, abandon
or terminate this Plan, in whole or in part; except that, no amendment,
abandonment or termination shall modify, waive or discharge any provisions of
the Agreements unless such modification, waiver or discharge is agreed in
writing and signed by the Executive and by an authorized member of the Committee
or a person to whom the Committee has delegated signature authority or by the
respective parties' legal representatives and successors.
7. Governing Law. The validity, interpretation, construction and enforcement
of this Plan shall be governed by the laws of the State of Illinois, without
giving effect to the principles of conflicts of laws thereof, to the extent not
pre-empted by the laws of the United States. To the extent so pre-empted, the
laws of the United States shall control.
8. Administration by the Committee. The Committee shall be responsible for the
general operation and administration of the Plan and for carrying out the
provisions thereof. The Committee shall administer the Plan in accordance with
its terms and shall have all powers necessary to carry out the provisions of the
Plan. The Committee shall interpret the Plan and shall determine all questions
arising in the administration, interpretation, and application of the Plan,
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including but not limited to, questions of eligibility and the status and
rights of employees, Participants and other persons. Any such determination by
the Committee shall presumptively be conclusive and binding on all persons. The
regularly kept records of the Company and any Subsidiary shall be conclusive and
binding upon all persons with respect to a Participant's date and length of
service, amount of compensation and the manner of payment thereof, type and
length of any absence from work and all other matters contained therein relating
to Participants. All rules and determinations of the Committee shall be
uniformly and consistently applied to all persons in similar circumstances.
9. Incapacity of Recipient. If any person entitled to a distribution under the
Plan is deemed by the Company or its designee to be incapable of personally
receiving and giving a valid receipt for such payment, then, unless and until
claim therefor shall have been made by a duly appointed guardian or other legal
representative of such person, the Company or its designee may provide for such
payment or any part thereof to be made to any other person or institution then
contributing toward or providing for the care and maintenance of such person.
Any such payment shall be a payment for the account of such person and a
complete discharge of any liability of the Company, its designee and the Plan
therefor.
10. Indemnification. The Company and each Subsidiary shall indemnify and hold
harmless each member of the Committee, or any employee of the Company or any
Subsidiary (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 relating thereto with respect to the administration
of the Plan or the trust, except that no indemnification or defense shall be
provided to any person with respect to any conduct that has been judicially
determined, or agreed by the parties, to have constituted willful misconduct on
the part of such person, or to have resulted in his or her receipt of personal
profit or advantage to which he or she is not entitled.
11. Limitations on Liability. Notwithstanding any of the preceding provisions
of the Plan, neither the Company nor any individual acting as employee or agent
of the Company shall be liable to any Participant, former Participant, or
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other person for any claim, loss, liability or expense incurred in connection
with the Plan.
12. Unclaimed Benefit. In the event that all, or any portion, of the
distribution payable to a Participant hereunder shall, at the expiration of five
years after it shall become payable, remain unpaid solely by reason of the
inability of the Committee, after sending a registered letter, return receipt
requested, to the last known address, and after further diligent effort, to
ascertain the whereabouts of such Participant, the amount so distributable shall
be treated as a forfeiture and shall be retained by the Company as part of its
general assets.
13. Effective Date. The Company previously adopted an Executive
Severance Plan effective as of February 19, 1982 and last Amended and Restated
effective as of February 16, 1990. This Plan shall be an amendment and
restatement of that previous plan, effective as of April 18, 1997.
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Form IA
Executive Severance
Agreement for
FMC Corporation
Contents
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Page
Article 1. Establishment, Term, and Purpose 3
Article 2. Definitions 3
Article 3. Severance Benefits 8
Article 4. Form and Timing of Severance Benefits 11
Article 5. Excise Tax Equalization Payment 11
Article 6. Establishment of Trust 13
Article 7. The Company's Payment Obligation 13
Article 8. Legal Remedies 14
Article 9. Outplacement Assistance 14
Article 10. Successors and Assignment 14
Article 11. Miscellaneous 15
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FMC Corporation
Executive Severance Agreement
THIS AGREEMENT is made and entered into as of the ___ day of ______, ____,
by and between FMC Corporation (hereinafter referred to as the "Company") and
________________ (hereinafter referred to as the "Executive").
WHEREAS, the Board of Directors of the Company has approved the Company
entering into severance agreements with certain key executives of the Company;
WHEREAS, the Executive is a key executive of the Company;
WHEREAS, should the possibility of a Change in Control of the Company
arise, the Board believes it is imperative that the Company and the Board should
be able to rely upon the Executive to continue in his position, and that the
Company should be able to receive and rely upon the Executive's advice, if
requested, as to the best interests of the Company and its shareholders without
concern that the Executive might be distracted by the personal uncertainties and
risks created by the possibility of a Change in Control;
WHEREAS, should the possibility of a Change in Control arise, in addition
to his regular duties, the Executive may be called upon to assist in the
assessment of such possible Change in Control, advise management and the Board
as to whether such Change in Control would be in the best interests of the
Company and its shareholders, and to take such other actions as the Board might
determine to be appropriate; and
WHEREAS, the Executive and the Company desire that the terms of this
Agreement shall completely replace and supersede the provisions set forth in the
FMC Corporation Executive Severance Plan [and the Executive Severance Agreement,
entered into by and between the Company and the Executive on ____________],
setting forth the terms and provisions with respect to the Executive's
entitlement to payments and benefits following a Change in Control of the
Company.
NOW THEREFORE, to assure the Company that it will have the continued
dedication of the Executive and the availability of his advice and counsel
notwithstanding the possibility, threat, or occurrence of a Change in Control of
the Company, and to induce the Executive to remain in the employ of the Company,
and for other good and valuable consideration, the Company and the Executive
agree as follows:
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Article 1. Establishment, Term, and Purpose
This Agreement will commence on the Effective Date and shall continue in
effect for three (3) full years. However, at the end of such three (3) year
period and, if extended, at the end of each additional year thereafter, the term
of this Agreement shall be extended automatically for one (1) additional year,
unless the Committee delivers written notice six (6) months prior to the end of
such term, or extended term, to each Executive, that the Agreement will not be
extended. In such case, the Agreement will terminate at the end of the term, or
extended term, then in progress.
However, in the event a Change in Control occurs during the original or any
extended term, this Agreement will remain in effect for the longer of: (i)
twenty-four (24) months beyond the month in which such Change in Control
occurred; or (ii) until all obligations of the Company hereunder have been
fulfilled, and until all benefits required hereunder have been paid to the
Executive.
Article 2. Definitions
Whenever used in this Agreement, the following terms shall have the
meanings set forth below and, when the meaning is intended, the initial letter
of the word is capitalized.
2.1 "Base Salary" means the salary of record paid to an Executive as
annual salary, excluding amounts received under incentive or other bonus plans,
whether or not deferred.
2.2 "Beneficial Owner" shall have the meaning ascribed to such term in
Rule 13d-3 of the General Rules and Regulations under the Exchange Act.
2.3 "Beneficiary" means the persons or entities designated or deemed
designated by the Executive pursuant to Section 11.2 herein.
2.4 "Board" means the Board of Directors of the Company.
2.5 "Cause" means: (a) the Executive's willful and continued failure to
substantially perform his duties with the Company (other than any such failure
resulting from Disability or occurring after issuance by the Executive of a
Notice of Termination for Good Reason), after a written demand for substantial
performance is delivered to the Executive that specifically identifies the
manner in which the Company believes that the Executive has willfully failed to
substantially perform his duties, and after the Executive has failed to resume
substantial performance of his duties on a continuous basis within thirty (30)
calendar days of receiving such demand; (b) the Executive's willfully engaging
in conduct (other than conduct covered under (a) above) which is demonstrably
and materially injurious to the Company, monetarily or otherwise; or (c) the
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Executive's having been convicted of, or plead guilty or nolo contendere to, a
felony. For purposes of this subparagraph, no act, or failure to act, on the
Executive's part shall be deemed "willful" unless done, or omitted to be done,
by the Executive not in good faith and without reasonable belief that the action
or omission was in the best interests of the Company. Any act, or failure to
act, based upon authority given pursuant to a resolution duly adopted by the
Board or upon the instructions of the chief executive officer or a senior
officer of the Company or based upon the advice of counsel for the Company shall
be conclusively presumed to be done, or omitted to be done, by the Executive in
good faith and in the best interests of the Company. The cessation of employment
of the Executive shall not be deemed to be for Cause unless and until there
shall have been delivered to the Executive a copy of a resolution duly adopted
by the affirmative vote of not less than three-quarters of the entire membership
of the Board at a meeting of the Board called and held for such purpose, (after
reasonable notice is provided to the Executive and the Executive is given an
opportunity, together with counsel, to be heard before the Board), finding that,
in the good faith opinion of the Board, the Executive is guilty of the conduct
described in subparagraph (a) or (b) above, and specifying the particulars
thereof in detail. The Executive shall not be precluded from contesting such
resolution pursuant to an arbitration proceeding under Section 8.2 of this
Agreement.
2.6 "Change in Control" of the Company shall be deemed to have occurred as
of the first day that any one or more of the following conditions is satisfied:
(a) The "beneficial ownership" (as defined in Rule 13d-3 under the
Exchange Act) of securities representing more than 20 percent (20%) of
the combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors
(the "Company Voting Securities") is acquired by a Person (other than
the Company, any trustee or other fiduciary holding securities under
an employee benefit plan of the Company or an affiliate thereof, any
corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of
stock of the Company); provided, however that any acquisition from the
Company or any acquisition pursuant to a transaction which complies
with clauses (i), (ii), and (iii) of paragraph (c) of this Section 2.6
shall not be a Change in Control under this paragraph (a); or
(b) Individuals who, as of the date hereof, constitute the Board of
Directors (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's stockholders,
was approved by a vote of at
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least a majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such individual
whose initial assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(c) Consummation by the Company of a reorganization, merger, or
consolidation or sale or other disposition of all or substantially all
of the assets of the Company or the acquisition of assets or stock or
another entity (a "Business Combination"), in each case, unless
immediately following such Business Combination: (i) more than 60% of
the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors of (x) the
corporation resulting from such Business Combination (the "Surviving
Corporation"), or (y) if applicable, 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 (the "Parent Corporation"), is represented, directly or
indirectly by Company Voting Securities outstanding immediately prior
to such Business Combination (or, if applicable, is represented by
shares into which such Company Voting Securities were converted
pursuant to such Business Combination), and such voting power among
the holders thereof is in substantially the same proportions as their
ownership, immediately prior to such Business Combination, of the
Company Voting Securities, (ii) no Person (excluding any employee
benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly
or indirectly, 20% or more of the combined voting power of the then
outstanding voting securities eligible to elect directors of the
Parent Corporation (or, if there is no Parent Corporation, the
Surviving Corporation) except to the extent that such ownership of the
Company existed prior to the Business Combination and (iii) at least a
majority of the members of the board of directors of the Parent
Corporation (or, if there is no Parent Corporation, the Surviving
Corporation) were members of the Incumbent Board at the time of the
execution of the initial agreement, or of the action of the Board,
providing for such Business Combination; or
(d) Approval by the stockholders of the Company of a complete liquidation
or dissolution of the Company.
However, in no event shall a Change in Control be deemed to have occurred,
with respect to the Executive, if the Executive is part of a purchasing group
which consummates the Change-in-Control transaction. The Executive shall be
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deemed "part of a purchasing group" for purposes of the preceding sentence if
the Executive is an equity participant in the purchasing company or group
(except for: (i) passive ownership of less than three percent (3%) of the stock
of the purchasing company; or (ii) ownership of equity participation in the
purchasing company or group which is otherwise not significant, as determined
prior to the Change in Control by a majority of the nonemployee continuing
Directors).
2.7 "Code" means the United States Internal Revenue Code of 1986, as
amended, and any successors thereto.
2.8 "Committee" means the Compensation and Organization Committee of the
Board or any other committee appointed by the Board to perform the functions of
the Compensation and Organization Committee.
2.9 "Company" means FMC Corporation, a Delaware corporation, or any
successor thereto as provided in Article 10 herein.
2.10 "Disability" means complete and permanent inability by reason of
illness or accident to perform the duties of the occupation at which the
Executive was employed when such disability commenced.
2.11 "Effective Date" means the date of this Agreement set forth above.
2.12 "Effective Date of Termination" means the date on which a Qualifying
Termination occurs which triggers the payment of Severance Benefits hereunder.
2.13 "Exchange Act" means the United States Securities Exchange Act of
1934, as amended.
2.14 "Good Reason" shall mean, without the Executive's express written
consent, the occurrence of any one or more of the following:
(a) The assignment of the Executive to duties materially inconsistent with
the Executive's authorities, duties, responsibilities, and status
(including offices and reporting requirements) as an employee of the
Company, or a reduction or alteration in the nature or status of the
Executive's authorities, duties, or responsibilities from those in
effect immediately preceding the Change in Control;
(b) The Company's requiring the Executive to (i) be based at a location
which is at least twenty-five (25) miles from the office where the
Executive is located at the time of the Change in Control, (not
including
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for this clause (i) required travel on the Company's business to an
extent substantially consistent with the Executive's business
immediately prior to the Change in Control) or (ii) travel on Company
business to an extent substantially greater than the travel
obligations of the Executive immediately prior to the Change in
Control;
(c) A reduction by the Company in the Executive's Base Salary as in effect
immediately prior to the Change in Control or as the same shall be
increased from time to time;
(d) The failure of the Company to (i) continue in effect any employee
benefit plan, compensation plan, welfare benefit plan or material
fringe benefit plan in which the Executive is participating
immediately prior to such Change in Control or the taking of any
action by the Company which would adversely affect the Executive's
participation in or reduce the Executive's benefits under any such
plan, unless the Executive is permitted to participate in other plans
providing Executive with at least substantially equivalent benefits in
the aggregate (at substantially equivalent cost with respect to
welfare benefit plans), or (ii) provide the Executive with paid
vacation in accordance with the most favorable vacation policies of
the Company and its affiliated companies as in effect for the
Executive immediately prior to such Change in Control, including the
crediting of all service for which the Executive had been credited
under such vacation policies prior to the Change in Control;
(e) The failure of the Company to obtain a satisfactory agreement from any
successor to the Company to assume and agree to perform this
Agreement, as contemplated in Article 10 herein; or
(f) Any termination of Executive's employment by the Company that is not
effected pursuant to a Notice of Termination.
The existence of Good Reason shall not be affected by the Executive's
temporary incapacity due to physical or mental illness not constituting a
Disability. The Executive's Retirement shall constitute a waiver of the
Executive's rights with respect to any circumstance constituting Good Reason.
The Executive's continued employment shall not constitute a waiver of the
Executive's rights with respect to any circumstance constituting Good Reason.
2.15 "Notice of Termination" shall mean a written notice which shall
indicate the specific termination provision in this Agreement relied upon, and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment under the
provision so indicated.
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2.16 "Person" shall have the meaning ascribed to such term in Section
3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof,
including a "group" as provided in Section 13(d).
2.17 "Qualifying Termination" means any of the events described in Section
3.2 herein, the occurrence of which triggers the payment of Severance Benefits
hereunder.
2.18 "Retirement" means the Executive's voluntary termination of employment
in a manner which qualifies the Executive to receive immediately payable
retirement benefits under the Company's tax-qualified retirement plan or under
the successor or replacement of such retirement plan if it is then no longer in
effect; provided, that a termination for Good Reason which otherwise constitutes
Retirement shall be treated as Good Reason for purposes of being a Qualifying
Termination under this Agreement.
2.19 "Severance Benefits" means the payment of severance compensation as
provided in Section 3.3 herein.
2.20 "Trust" means the Company grantor trust to be created pursuant to
Article 6 of this Agreement.
Article 3. Severance Benefits
3.1 Right to Severance Benefits. The Executive shall be entitled to
receive from the Company Severance Benefits, as described in Section 3.3 herein,
if there has been a Change in Control of the Company and if, within twenty-four
(24) calendar months following the Change in Control, a Qualifying Termination
of the Executive has occurred.
The Executive shall not be entitled to receive Severance Benefits if he is
terminated for Cause, or if his employment with the Company ends due to death,
Disability, or Retirement or due to a voluntary termination of employment by the
Executive without Good Reason other than during the thirteenth (13th) calendar
month following the month in which a Change in Control occurs.
3.2 Qualifying Termination. The occurrence of any one or more of the
following events shall trigger the payment of Severance Benefits to the
Executive under this Agreement:
(a) An involuntary termination of the Executive's employment by the
Company for reasons other than Cause within twenty-four (24) calendar
months following the month in which a Change in Control of the Company
occurs;
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(b) A voluntary termination by the Executive for Good Reason within
twenty-four (24) calendar months following the month in which a Change
in Control of the Company occurs pursuant to a Notice of Termination
delivered to the Company by the Executive;
(c) A voluntary termination by the Executive during the thirteenth
(13/th) calendar month following the month in which a Change in
Control occurs pursuant to a Notice of Termination delivered to the
Company by the Executive; or
(d) The Company or any successor company breaches any of the provisions of
this Agreement following a Change in Control.
3.3 Description of Severance Benefits. In the event the Executive becomes
entitled to receive Severance Benefits, as provided in Sections 3.1 and 3.2
herein, the Company shall pay to the Executive and provide him with the
following:
(a) An amount equal to three (3) times the highest rate of the Executive's
annualized Base Salary in effect at any time [during the 36-month
period immediately] prior to the Effective Date of Termination.
(b) An amount equal to three (3) times the highest of the Executive's
target annual [Total] Management Incentive Award established [for any
plan year] [the three (3) plan years] up to and including the plan
year in which the Executive's Effective Date of Termination occurs.
(c) An amount equal to the Executive's unpaid Base Salary, and unused and
accrued vacation pay, through the Effective Date of Termination.
(d) A continuation of the welfare benefits of health care, life and
accidental death and dismemberment, and disability insurance coverage
for three (3) full years after the Effective Date of Termination.
These benefits shall be provided to the Executive (and to the
Executive's covered spouse and dependents) at the same premium cost,
and at the same coverage level, as in effect as of the Executive's
Effective Date of Termination.
The continuation of these welfare benefits shall be discontinued prior
to the end of the three (3) year period in the event the Executive has
available substantially similar benefits at a comparable cost from a
subsequent employer, as determined by the Committee.
Incentive awards granted under the FMC 1995 Management Incentive Plan, FMC
1995 Stock Option Plan, and other incentive arrangements adopted by the Company
shall be treated pursuant to the terms of the applicable plan.
Page 9
The aggregate benefits accrued by the Executive as of the Effective Date of
Termination under the FMC Corporation Salaried Employees' Retirement Plan, the
FMC Employees' Thrift and Stock Purchase Plan, the FMC Salaried Employees'
Equivalent Retirement Plan, and other savings and retirement plans sponsored by
the Company shall be distributed pursuant to the terms of the applicable plan.
For purposes of the Company's nonqualified retirement plans, such benefits shall
be calculated under the assumption that the Executive's employment continued
following the Effective Date of Termination for three (3) full years (i.e.,
three (3) additional years of age and service credits shall be added); provided,
however, that for purposes of determining "final average pay" under such
programs, the Executive's actual pay history as of the Effective Date of
Termination shall be used.
Compensation which has been deferred under the Deferred Compensation Plan
of FMC, FMC Deferred Compensation Equivalent Retirement and Thrift Plan or other
plans sponsored by the Company, as applicable, together with all interest that
has been credited with respect to any such deferred compensation balances, shall
be distributed pursuant to the terms of the applicable plan.
3.4 Termination for Disability. Following a Change in Control of the
Company, if an Executive's employment is terminated due to Disability, the
Executive shall receive his Base Salary through the Effective Date of
Termination, at which point in time the Executive's benefits shall be determined
in accordance with the Company's disability, retirement, insurance, and other
applicable plans and programs then in effect. In the event the Executive's
employment is terminated due to Disability, the Executive shall not be entitled
to the Severance Benefits described in Section 3.3.
3.5 Termination for Retirement or Death. Following a Change in Control of
the Company, if the Executive's employment is terminated by reason of his
Retirement or death, the Executive's benefits shall be determined in accordance
with the Company's retirement, survivor's benefits, insurance, and other
applicable programs of the Company then in effect. In the event the Executive's
employment is terminated by reason of his Retirement or death, the Executive
shall not be entitled to the Severance Benefits described in Section 3.3.
3.6 Termination for Cause, or Other Than for Good Reason or Retirement.
Following a Change in Control of the Company, if the Executive's employment is
terminated either: (a) by the Company for Cause; or (b) by the Executive (other
than for Retirement, Good Reason, or under circumstances giving rise to a
Qualifying Termination described in Section 3.2(c) herein), the Company shall
pay the Executive his full Base Salary and accrued vacation through the
Effective Date of Termination, at the rate then in effect, plus all other
Page 10
amounts to which the Executive is entitled under any compensation plans of the
Company, at the time such payments are due, and the Company shall have no
further obligations to the Executive under this Agreement.
3.7 Notice of Termination. Any termination of employment by the Company or
by the Executive for Good Reason or during the thirteenth (13th) calendar month
following the month in which a Change in Control occurs shall be communicated by
a Notice of Termination.
Article 4. Form and Timing of Severance Benefits
4.1 Form and Timing of Severance Benefits. The Severance Benefits
described in Sections 3.3(a), 3.3(b), and 3.3(c) herein shall be paid in cash to
the Executive in a single lump sum as soon as practicable following the
Effective Date of Termination, but in no event beyond thirty (30) days from such
date.
4.2 Withholding of Taxes. The Company shall be entitled to withhold from
any amounts payable under this Agreement all taxes as legally shall be required
(including, without limitation, any United States federal taxes and any other
state, city, or local taxes).
Article 5. Excise Tax Equalization Payment
5.1 Excise Tax Equalization Payment. In the event that the Executive
becomes entitled to Severance Benefits or any other payment or benefit under
this Agreement, or under any other agreement with or plan of the Company (in the
aggregate, the "Total Payments"), if all or any part of the Total Payments will
be subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or
any similar tax that may hereafter be imposed), the Company shall pay to the
Executive in cash an additional amount (the "Gross-Up Payment") such that the
net amount retained by the Executive after deduction of any Excise Tax upon the
Total Payments and any federal, state, and local income tax, penalties,
interest, and Excise Tax upon the Gross-Up Payment provided for by this Section
5.1 (including FICA and FUTA), shall be equal to the Total Payments. Such
payment shall be made by the Company to the Executive as soon as practical
following the Effective Date of Termination, but in no event beyond thirty (30)
days from such date.
5.2 Tax Computation. For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the amounts of such Excise Tax:
(a) Any other payments or benefits received or to be received by the
Executive in connection with a Change in Control of the Company or the
Executive's termination of employment (whether pursuant to the terms
of this Agreement or any other plan, arrangement, or agreement with
the
Page 11
Company, or with any Person whose actions result in a Change in
Control of the Company or any Person affiliated with the Company or
such Persons) shall be treated as "parachute payments" within the
meaning of Section 280G(b)(2) of the Code, and all "excess parachute
payments" within the meaning of Section 280G(b)(1) shall be treated as
subject to the Excise Tax, unless in the opinion of tax counsel as
supported by the Company's independent auditors and acceptable to the
Executive, such other payments or benefits (in whole or in part) do
not constitute parachute payments, or unless such excess parachute
payments (in whole or in part) represent reasonable compensation for
services actually rendered within the meaning of Section 280G(b)(4) of
the Code in excess of the base amount within the meaning of Section
280G(b)(3) of the Code, or are otherwise not subject to the Excise
Tax;
(b) The amount of the Total Payments which shall be treated as subject to
the Excise Tax shall be equal to the lesser of: (i) the total amount
of the Total Payments; or (ii) the amount of excess parachute payments
within the meaning of Section 280G(b)(1) (after applying clause (a)
above); and
(c) The value of any noncash benefits or any deferred payment or benefit
shall be determined by the Company's independent auditors in
accordance with the principles of Sections 280G(d)(3) and (4) of the
Code.
For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay federal income taxes at the highest marginal
rate of federal income taxation in the calendar year in which the Gross-Up
Payment is to be made, and state and local income taxes at the highest marginal
rate of taxation in the state and locality of the Executive's residence on the
Effective Date of Termination, net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and local taxes.
5.3 Subsequent Recalculation. In the event the Internal Revenue Service
adjusts the computation of the Company under Section 5.2 herein so that the
Executive did not receive the greatest net benefit, the Company shall reimburse
the Executive for the full amount necessary to make the Executive whole, plus a
market rate of interest, as determined by the Committee.
Page 12
Article 6. Establishment of Trust
As soon as practicable following the Effective Date hereof, the Company
shall create a Trust (which shall be a grantor trust within the meaning of
Sections 671-678 of the Internal Revenue Code) for the benefit of the Executive
and Beneficiaries, as appropriate. The Trust shall have a Trustee as selected by
the Company, and shall have certain restrictions as to the Company's ability to
amend the Trust or cancel benefits provided thereunder. Any assets contained in
the Trust shall, at all times, be specifically subject to the claims of the
Company's general creditors in the event of bankruptcy or insolvency; such terms
to be specifically defined within the provisions of the Trust, along with the
required procedure for notifying the Trustee of any bankruptcy or insolvency.
At any time following the Effective Date hereof, the Company may, but is
not obligated to, deposit assets in the Trust in an amount equal to or less than
the aggregate Severance Benefits which may become due to the Executive under
Sections 3.3(a), (b), and (c), and 5.1 of this Agreement.
Upon a Change in Control, the Company shall deposit assets in such Trust in
an amount equal to the estimated aggregate Severance Benefits which may become
due to the Executive under Sections 3.3(a), (b), and (c), 5.1, and 8.1 of this
Agreement. Such deposited amounts shall be reviewed and increased, if necessary,
every six (6) months following a Change in Control to reflect the Executive's
estimated aggregate Severance Benefits at such time.
Article 7. The Company's Payment Obligation
The Company's obligation to make the payments and the arrangements provided
for herein shall be absolute and unconditional, and shall not be affected by any
circumstances, including, without limitation, any offset, counterclaim,
recoupment, defense, or other right which the Company may have against the
Executive or anyone else. All amounts payable by the Company hereunder shall be
paid without notice or demand. Each and every payment made hereunder by the
Company shall be final, and the Company shall not seek to recover all or any
part of such payment from the Executive or from whomsoever may be entitled
thereto, for any reasons whatsoever.
The Executive shall not be obligated to seek other employment in mitigation
of the amounts payable or arrangements made under any provision of this
Agreement, and the obtaining of any such other employment shall in no event
effect any reduction of the Company's obligations to make the payments and
arrangements required to be made under this Agreement, except to the extent
provided in Section 3.3(d) herein.
Page 13
Article 8. Legal Remedies
8.1 Payment of Legal Fees. To the extent permitted by law, the Company
shall pay all legal fees, costs of litigation, prejudgment interest, and other
expenses incurred in good faith by the Executive as a result of the Company's
refusal to provide the Severance Benefits to which the Executive becomes
entitled under this Agreement, or as a result of the Company's contesting the
validity, enforceability, or interpretation of this Agreement, or as a result of
any conflict (including conflicts related to the calculation of parachute
payments) between the parties pertaining to this Agreement.
8.2 Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled by arbitration, conducted before a panel of
three (3) arbitrators sitting in a location selected by the Executive within
fifty (50) miles from the location of his employment with the Company, in
accordance with the rules of the American Arbitration Association then in
effect.
Judgment may be entered on the award of the arbitrator in any court having
proper jurisdiction. All expenses of such arbitration, including the fees and
expenses of the counsel for the Executive, shall be borne by the Company.
Article 9. Outplacement Assistance
Following a Qualifying Termination, other than a voluntary termination by
the Executive during the thirteenth (13th) calendar month following the month in
which a Change in Control occurs (as described in Section 3.2 herein), the
Executive shall be reimbursed by the Company for the costs of all outplacement
services obtained by the Executive within the two (2) year period after the
Effective Date of Termination; provided, however, that the total reimbursement
shall be limited to an amount equal to fifteen percent (15%) of the Executive's
Base Salary as of the Effective Date of Termination.
Article 10. Successors and Assignment
10.1 Successors to the Company. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation, or otherwise)
of all or substantially all of the business and/or assets of the Company or of
any division or subsidiary thereof to expressly assume and agree to perform the
Company's obligations under this Agreement in the same manner and to the same
extent that the Company would be required to perform them if no such succession
had taken place. The date on which any such succession becomes effective shall
be deemed to be the date of the Change in Control.
10.2 Assignment by the Executive. This Agreement shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees, and legatees. If the Executive dies while any amount would still be
Page 14
payable to him hereunder had he continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to the Executive's Beneficiary. If the Executive has not named a
Beneficiary, then such amounts shall be paid to the Executive's devisee,
legatee, or other designee, or if there is no such designee, to the Executive's
estate.
Article 11. Miscellaneous
11.1 Employment Status. Except as may be provided under any other
agreement between the Executive and the Company, the employment of the Executive
by the Company is "at will," and may be terminated by either the Executive or
the Company at any time, subject to applicable law.
11.2 Beneficiaries. The Executive may designate one or more persons or
entities as the primary and/or contingent Beneficiaries of any Severance
Benefits owing to the Executive under this Agreement. Such designation must be
in the form of a signed writing acceptable to the Committee. The Executive may
make or change such designations at any time.
11.3 Severability. In the event any provision of this Agreement shall be
held illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of the Agreement, and the Agreement shall be
construed and enforced as if the illegal or invalid provision had not been
included. Further, the captions of this Agreement are not part of the provisions
hereof and shall have no force and effect.
11.4 Modification. No provision of this Agreement may be modified, waived,
or discharged unless such modification, waiver, or discharge is agreed to in
writing and signed by the Executive and by an authorized member of the
Committee, or by the respective parties' legal representatives and successors.
Page 15
11.5 Applicable Law. To the extent not preempted by the laws of the United
States, the laws of the state of Illinois shall be the controlling law in all
matters relating to this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on this ________
day of ___________, 1997.
FMC Corporation Executive:
By:
____________________________ _____________________________________
Its:
___________________________
Attest:
________________________
Page 16
FORM I
Executive Severance
Agreement for
--------------------
FMC Corporation
Contents
- --------------------------------------------------------------------------------
Page
Article 1. Establishment, Term, and Purpose 2
Article 2. Definitions 2
Article 3. Severance Benefits 7
Article 4. Form and Timing of Severance Benefits 10
Article 5. Excise Tax Equalization Payment 10
Article 6. Establishment of Trust 11
Article 7. The Company's Payment Obligation 12
Article 8. Legal Remedies 12
Article 9. Outplacement Assistance 13
Article 10. Successors and Assignment 13
Article 11. Miscellaneous 14
FMC Corporation
Executive Severance Agreement
THIS AGREEMENT is made and entered into as of the _____ day of _________,
____, by and between FMC Corporation (hereinafter referred to as the "Company")
and ____________________ (hereinafter referred to as the "Executive").
WHEREAS, the Board of Directors of the Company has approved the Company
entering into severance agreements with certain key executives of the Company;
WHEREAS, the Executive is a key executive of the Company;
WHEREAS, should the possibility of a Change in Control of the Company
arise, the Board believes it is imperative that the Company and the Board should
be able to rely upon the Executive to continue in his position, and that the
Company should be able to receive and rely upon the Executive's advice, if
requested, as to the best interests of the Company and its shareholders without
concern that the Executive might be distracted by the personal uncertainties and
risks created by the possibility of a Change in Control;
WHEREAS, should the possibility of a Change in Control arise, in addition
to his regular duties, the Executive may be called upon to assist in the
assessment of such possible Change in Control, advise management and the Board
as to whether such Change in Control would be in the best interests of the
Company and its shareholders, and to take such other actions as the Board might
determine to be appropriate; and
WHEREAS, the Executive and the Company desire that the terms of this
Agreement shall completely replace and supersede the provisions set forth in the
FMC Corporation Executive Severance Plan, [and the Executive Agreement entered
into by and between the Company and the Executive on ____________], setting
forth the terms and provisions with respect to the Executive's entitlement to
payments and benefits following a Change in Control of the Company.
NOW THEREFORE, to assure the Company that it will have the continued
dedication of the Executive and the availability of his advice and counsel
notwithstanding the possibility, threat, or occurrence of a Change in Control of
the Company, and to induce the Executive to remain in the employ of the Company,
and for other good and valuable consideration, the Company and the Executive
agree as follows:
Page 1
Article 1. Establishment, Term, and Purpose
This Agreement will commence on the Effective Date and shall continue in
effect for three (3) full years. However, at the end of such three (3) year
period and, if extended, at the end of each additional year thereafter, the term
of this Agreement shall be extended automatically for one (1) additional year,
unless the Committee delivers written notice six (6) months prior to the end of
such term, or extended term, to each Executive, that the Agreement will not be
extended. In such case, the Agreement will terminate at the end of the term, or
extended term, then in progress.
However, in the event a Change in Control occurs during the original or any
extended term, this Agreement will remain in effect for the longer of: (i)
twenty-four (24) months beyond the month in which such Change in Control
occurred; or (ii) until all obligations of the Company hereunder have been
fulfilled, and until all benefits required hereunder have been paid to the
Executive.
Article 2. Definitions
Whenever used in this Agreement, the following terms shall have the
meanings set forth below and, when the meaning is intended, the initial letter
of the word is capitalized.
2.1 "Base Salary" means the salary of record paid to an Executive as
annual salary, excluding amounts received under incentive or other bonus plans,
whether or not deferred.
2.2 "Beneficial Owner" shall have the meaning ascribed to such term in
Rule 13d-3 of the General Rules and Regulations under the Exchange Act.
2.3 "Beneficiary" means the persons or entities designated or deemed
designated by the Executive pursuant to Section 11.2 herein.
2.4 "Board" means the Board of Directors of the Company.
2.5 "Cause" means: (a) the Executive's willful and continued failure to
substantially perform his duties with the Company (other than any such failure
resulting from Disability or occurring after issuance by the Executive of a
Notice of Termination for Good Reason), after a written demand for substantial
performance is delivered to the Executive that specifically identifies the
manner in which the Company believes that the Executive has willfully failed to
substantially perform his duties, and after the Executive has failed to resume
substantial performance of his duties on a continuous basis within thirty (30)
calendar days of receiving such demand; (b) the Executive's willfully engaging
in conduct (other than conduct covered under (a) above) which is demonstrably
and materially injurious to the Company, monetarily or otherwise; or (c) the
Executive's having been convicted of, or plead guilty or nolo contendere to, a
Page 2
felony. For purposes of this subparagraph, no act, or failure to act, on the
Executive's part shall be deemed "willful" unless done, or omitted to be done,
by the Executive not in good faith and without reasonable belief that the action
or omission was in the best interests of the Company. Any act, or failure to
act, based upon authority given pursuant to a resolution duly adopted by the
Board or upon the instructions of the chief executive officer or a senior
officer of the Company or based upon the advice of counsel for the Company shall
be conclusively presumed to be done, or omitted to be done, by the Executive in
good faith and in the best interests of the Company. The cessation of employment
of the Executive shall not be deemed to be for Cause unless and until there
shall have been delivered to the Executive a copy of a resolution duly adopted
by the affirmative vote of not less than three-quarters of the entire membership
of the Board at a meeting of the Board called and held for such purpose, (after
reasonable notice is provided to the Executive and the Executive is given an
opportunity, together with counsel, to be heard before the Board), finding that,
in the good faith opinion of the Board, the Executive is guilty of the conduct
described in subparagraph (a) or (b) above, and specifying the particulars
thereof in detail. The Executive shall not be precluded from contesting such
resolution pursuant to an arbitration proceeding under Section 8.2 of this
Agreement.
2.6 "Change in Control" of the Company shall be deemed to have occurred as
of the first day that any one or more of the following conditions is satisfied:
(a) The "beneficial ownership" (as defined in Rule 13d-3 under the
Exchange Act) of securities representing more than 20 percent (20%) of
the combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors
(the "Company Voting Securities") is acquired by a Person (other than
the Company, any trustee or other fiduciary holding securities under
an employee benefit plan of the Company or an affiliate thereof, any
corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of
stock of the Company); provided, however that any acquisition from the
Company or any acquisition pursuant to a transaction which complies
with clauses (i), (ii), and (iii) of paragraph (c) of this Section 2.6
shall not be a Change in Control under this paragraph (a); or
(b) Individuals who, as of the date hereof, constitute the Board of
Directors (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's stockholders,
was approved by a vote of at least a majority of the directors then
comprising the
Page 3
Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any
such individual whose initial assumption of office occurs as a result
of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other
than the Board; or
(c) Consummation by the Company of a reorganization, merger, or
consolidation or sale or other disposition of all or substantially all
of the assets of the Company or the acquisition of assets or stock or
another entity (a "Business Combination"), in each case, unless
immediately following such Business Combination: (i) more than 60% of
the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors of (x) the
corporation resulting from such Business Combination (the "Surviving
Corporation"), or (y) if applicable, 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
(the "Parent Corporation"), is represented, directly or indirectly by
Company Voting Securities outstanding immediately prior to such
Business Combination (or, if applicable, is represented by shares into
which such Company Voting Securities were converted pursuant to such
Business Combination), and such voting power among the holders thereof
is in substantially the same proportions as their ownership,
immediately prior to such Business Combination, of the Company Voting
Securities, (ii) no Person (excluding any employee benefit plan (or
related trust) of the Company or such corporation resulting from such
Business Combination) beneficially owns, directly or indirectly, 20% or
more of the combined voting power of the then outstanding voting
securities eligible to elect directors of the Parent Corporation (or,
if there is no Parent Corporation, the Surviving Corporation) except to
the extent that such ownership of the Company existed prior to the
Business Combination and (iii) at least a majority of the members of
the board of directors of the Parent Corporation (or, if there is no
Parent Corporation, the Surviving Corporation) were members of the
Incumbent Board at the time of the execution of the initial agreement,
or of the action of the Board, providing for such Business Combination;
or
(d) Approval by the stockholders of the Company of a complete liquidation
or dissolution of the Company.
However, in no event shall a Change in Control be deemed to have occurred,
with respect to the Executive, if the Executive is part of a purchasing group
which consummates the Change-in-Control transaction. The Executive shall be
deemed "part of a purchasing group" for purposes of the preceding
Page 4
sentence if the Executive is an equity participant in the purchasing company or
group (except for: (i) passive ownership of less than three percent (3%) of the
stock of the purchasing company; or (ii) ownership of equity participation in
the purchasing company or group which is otherwise not significant, as
determined prior to the Change in Control by a majority of the nonemployee
continuing Directors).
2.7 "Code" means the United States Internal Revenue Code of 1986, as
amended, and any successors thereto.
2.8 "Committee" means the Compensation and Organization Committee of the
Board or any other committee appointed by the Board to perform the functions of
the Compensation and Organization Committee.
2.9 "Company" means FMC Corporation, a Delaware corporation, or any
successor thereto as provided in Article 10 herein.
2.10 "Disability" means complete and permanent inability by reason of
illness or accident to perform the duties of the occupation at which the
Executive was employed when such disability commenced.
2.11 "Effective Date" means the date of this Agreement set forth above.
2.12 "Effective Date of Termination" means the date on which a Qualifying
Termination occurs which triggers the payment of Severance Benefits hereunder.
2.13 "Exchange Act" means the United States Securities Exchange Act of
1934, as amended.
2.14 "Good Reason" shall mean, without the Executive's express written
consent, the occurrence of any one or more of the following:
(a) The assignment of the Executive to duties materially inconsistent with
the Executive's authorities, duties, responsibilities, and status
(including offices and reporting requirements) as an employee of the
Company, or a reduction or alteration in the nature or status of the
Executive's authorities, duties, or responsibilities from those in
effect immediately preceding the Change in Control;
(b) The Company's requiring the Executive to (i) be based at a location
which is at least twenty-five (25) miles from the office where the
Executive is located at the time of the Change in Control, (not
including for this clause (i) required travel on the Company's
business to an extent substantially consistent with the Executive's
business
Page 5
immediately prior to the Change in Control) or (ii) travel on Company
business to an extent substantially greater than the travel
obligations of the Executive immediately prior to the Change in
Control;
(c) A reduction by the Company in the Executive's Base Salary as in effect
immediately prior to the Change in Control or as the same shall be
increased from time to time;
(d) The failure of the Company to (i) continue in effect any employee
benefit plan, compensation plan, welfare benefit plan or material
fringe benefit plan in which the Executive is participating
immediately prior to such Change in Control or the taking of any
action by the Company which would adversely affect the Executive's
participation in or reduce the Executive's benefits under any such
plan, unless the Executive is permitted to participate in other plans
providing Executive with at least substantially equivalent benefits in
the aggregate (at substantially equivalent cost with respect to
welfare benefit plans), or (ii) provide the Executive with paid
vacation in accordance with the most favorable vacation policies of
the Company and its affiliated companies as in effect for the
Executive immediately prior to such Change in Control, including the
crediting of all service for which the Executive had been credited
under such vacation policies prior to the Change in Control;
(e) The failure of the Company to obtain a satisfactory agreement from any
successor to the Company to assume and agree to perform this
Agreement, as contemplated in Article 10 herein; or
(f) Any termination of Executive's employment by the Company that is not
effected pursuant to a Notice of Termination.
The existence of Good Reason shall not be affected by the Executive's
temporary incapacity due to physical or mental illness not constituting a
Disability. The Executive's Retirement shall constitute a waiver of the
Executive's rights with respect to any circumstance constituting Good Reason.
The Executive's continued employment shall not constitute a waiver of the
Executive's rights with respect to any circumstance constituting Good Reason.
2.15 "Notice of Termination" shall mean a written notice which shall
indicate the specific termination provision in this Agreement relied upon, and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment under the
provision so indicated.
Page 6
2.16 "Person" shall have the meaning ascribed to such term in Section
3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof,
including a "group" as provided in Section 13(d).
2.17 "Qualifying Termination" means any of the events described in Section
3.2 herein, the occurrence of which triggers the payment of Severance Benefits
hereunder.
2.18 "Retirement" means the Executive's voluntary termination of employment
in a manner which qualifies the Executive to receive immediately payable
retirement benefits under the Company's tax-qualified retirement plan or under
the successor or replacement of such retirement plan if it is then no longer in
effect; provided, that a termination for Good Reason which otherwise constitutes
Retirement shall be treated as Good Reason for purposes of being a Qualifying
Termination under this Agreement.
2.19 "Severance Benefits" means the payment of severance compensation as
provided in Section 3.3 herein.
2.20 "Trust" means the Company grantor trust to be created pursuant to
Article 6 of this Agreement.
Article 3. Severance Benefits
3.1 Right to Severance Benefits. The Executive shall be entitled to
receive from the Company Severance Benefits, as described in Section 3.3 herein,
if there has been a Change in Control of the Company and if, within twenty-four
(24) calendar months following the Change in Control, a Qualifying Termination
of the Executive has occurred.
The Executive shall not be entitled to receive Severance Benefits if he is
terminated for Cause, or if his employment with the Company ends due to death,
Disability, or Retirement or due to a voluntary termination of employment by the
Executive without Good Reason.
3.2 Qualifying Termination. The occurrence of any one or more of the
following events shall trigger the payment of Severance Benefits to the
Executive under this Agreement:
(a) An involuntary termination of the Executive's employment by the
Company for reasons other than Cause within twenty-four (24) calendar
months following the month in which a Change in Control of the Company
occurs;
(b) A voluntary termination by the Executive for Good Reason within
twenty-four (24) calendar months following the month in which a
Page 7
Change in Control of the Company occurs pursuant to a Notice of
Termination delivered to the Company by the Executive; or
(c) The Company or any successor company breaches any of the provisions of
this Agreement following a Change in Control.
3.3 Description of Severance Benefits. In the event the Executive becomes
entitled to receive Severance Benefits, as provided in Sections 3.1 and 3.2
herein, the Company shall pay to the Executive and provide him with the
following:
(a) An amount equal to three (3) times the highest rate of the Executive's
annualized Base Salary in effect at any time [during the 36-month
period immediately] prior to the Effective Date of Termination.
(b) An amount equal to three (3) times the highest of the Executive's
target annual [Total] Management Incentive Award established [for any
plan year] [the three (3) plan years] up to and including the plan
year in which the Executive's Effective Date of Termination occurs.
(c) An amount equal to the Executive's unpaid Base Salary, and unused and
accrued vacation pay, through the Effective Date of Termination.
(d) A continuation of the welfare benefits of health care, life and
accidental death and dismemberment, and disability insurance coverage
for three (3) full years after the Effective Date of Termination.
These benefits shall be provided to the Executive (and to the
Executive's covered spouse and dependents) at the same premium cost,
and at the same coverage level, as in effect as of the Executive's
Effective Date of Termination.
The continuation of these welfare benefits shall be discontinued prior
to the end of the three (3) year period in the event the Executive has
available substantially similar benefits at a comparable cost from a
subsequent employer, as determined by the Committee.
Incentive awards granted under the FMC 1995 Management Incentive Plan, FMC
1995 Stock Option Plan, and other incentive arrangements adopted by the Company
shall be treated pursuant to the terms of the applicable plan.
The aggregate benefits accrued by the Executive as of the Effective Date of
Termination under the FMC Corporation Salaried Employees' Retirement Plan, the
FMC Employees' Thrift and Stock Purchase Plan, the FMC Salaried Employees'
Equivalent Retirement Plan, and other savings and retirement plans sponsored by
the Company shall be distributed pursuant to the terms of
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the applicable plan. For purposes of the Company's nonqualified retirement
plans, such benefits shall be calculated under the assumption that the
Executive's employment continued following the Effective Date of Termination for
three (3) full years (i.e., three (3) additional years of age and service
credits shall be added); provided, however, that for purposes of determining
"final average pay" under such programs, the Executive's actual pay history as
of the Effective Date of Termination shall be used.
Compensation which has been deferred under the Deferred Compensation Plan
of FMC, FMC Deferred Compensation Equivalent Retirement and Thrift Plan or other
plans sponsored by the Company, as applicable, together with all interest that
has been credited with respect to any such deferred compensation balances, shall
be distributed pursuant to the terms of the applicable plan.
3.4 Termination for Disability. Following a Change in Control of the
Company, if an Executive's employment is terminated due to Disability, the
Executive shall receive his Base Salary through the Effective Date of
Termination, at which point in time the Executive's benefits shall be determined
in accordance with the Company's disability, retirement, insurance, and other
applicable plans and programs then in effect. In the event the Executive's
employment is terminated due to Disability, the Executive shall not be entitled
to the Severance Benefits described in Section 3.3.
3.5 Termination for Retirement or Death. Following a Change in Control of
the Company, if the Executive's employment is terminated by reason of his
Retirement or death, the Executive's benefits shall be determined in accordance
with the Company's retirement, survivor's benefits, insurance, and other
applicable programs of the Company then in effect. In the event the Executive's
employment is terminated by reason of his Retirement or death, the Executive
shall not be entitled to the Severance Benefits described in Section 3.3.
3.6 Termination for Cause, or Other Than for Good Reason or Retirement.
Following a Change in Control of the Company, if the Executive's employment is
terminated either: (a) by the Company for Cause; or (b) by the Executive (other
than for Retirement, Good Reason, or under circumstances giving rise to a
Qualifying Termination described in Section 3.2(c) herein), the Company shall
pay the Executive his full Base Salary and accrued vacation through the
Effective Date of Termination, at the rate then in effect, plus all other
amounts to which the Executive is entitled under any compensation plans of the
Company, at the time such payments are due, and the Company shall have no
further obligations to the Executive under this Agreement.
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3.7 Notice of Termination. Any termination of employment by the Company or
by the Executive for Good Reason shall be communicated by a Notice of
Termination.
Article 4. Form and Timing of Severance Benefits
4.1 Form and Timing of Severance Benefits. The Severance Benefits
described in Sections 3.3(a), 3.3(b), and 3.3(c) herein shall be paid in cash to
the Executive in a single lump sum as soon as practicable following the
Effective Date of Termination, but in no event beyond thirty (30) days from such
date.
4.2 Withholding of Taxes. The Company shall be entitled to withhold from
any amounts payable under this Agreement all taxes as legally shall be required
(including, without limitation, any United States federal taxes and any other
state, city, or local taxes).
Article 5. Excise Tax Equalization Payment
5.1 Excise Tax Equalization Payment. In the event that the Executive
becomes entitled to Severance Benefits or any other payment or benefit under
this Agreement, or under any other agreement with or plan of the Company (in the
aggregate, the "Total Payments"), if all or any part of the Total Payments will
be subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or
any similar tax that may hereafter be imposed), the Company shall pay to the
Executive in cash an additional amount (the "Gross-Up Payment") such that the
net amount retained by the Executive after deduction of any Excise Tax upon the
Total Payments and any federal, state, and local income tax, penalties,
interest, and Excise Tax upon the Gross-Up Payment provided for by this Section
5.1 (including FICA and FUTA), shall be equal to the Total Payments. Such
payment shall be made by the Company to the Executive as soon as practical
following the Effective Date of Termination, but in no event beyond thirty (30)
days from such date.
5.2 Tax Computation. For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the amounts of such Excise Tax:
(a) Any other payments or benefits received or to be received by the
Executive in connection with a Change in Control of the Company or the
Executive's termination of employment (whether pursuant to the terms
of this Agreement or any other plan, arrangement, or agreement with
the Company, or with any Person whose actions result in a Change in
Control of the Company or any Person affiliated with the Company or
such Persons) shall be treated as "parachute payments" within the
meaning of Section 280G(b)(2) of the Code, and all "excess parachute
payments" within the meaning of Section 280G(b)(1) shall be treated as
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subject to the Excise Tax, unless in the opinion of tax counsel as
supported by the Company's independent auditors and acceptable to the
Executive, such other payments or benefits (in whole or in part) do
not constitute parachute payments, or unless such excess parachute
payments (in whole or in part) represent reasonable compensation for
services actually rendered within the meaning of Section 280G(b)(4) of
the Code in excess of the base amount within the meaning of Section
280G(b)(3) of the Code, or are otherwise not subject to the Excise
Tax;
(b) The amount of the Total Payments which shall be treated as subject to
the Excise Tax shall be equal to the lesser of: (i) the total amount
of the Total Payments; or (ii) the amount of excess parachute payments
within the meaning of Section 280G(b)(1) (after applying clause (a)
above); and
(c) The value of any noncash benefits or any deferred payment or benefit
shall be determined by the Company's independent auditors in
accordance with the principles of Sections 280G(d)(3) and (4) of the
Code.
For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay federal income taxes at the highest marginal
rate of federal income taxation in the calendar year in which the Gross-Up
Payment is to be made, and state and local income taxes at the highest marginal
rate of taxation in the state and locality of the Executive's residence on the
Effective Date of Termination, net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and local taxes.
5.3 Subsequent Recalculation. In the event the Internal Revenue Service
adjusts the computation of the Company under Section 5.2 herein so that the
Executive did not receive the greatest net benefit, the Company shall reimburse
the Executive for the full amount necessary to make the Executive whole, plus a
market rate of interest, as determined by the Committee.
Article 6. Establishment of Trust
As soon as practicable following the Effective Date hereof, the Company
shall create a Trust (which shall be a grantor trust within the meaning of
Sections 671-678 of the Internal Revenue Code) for the benefit of the Executive
and Beneficiaries, as appropriate. The Trust shall have a Trustee as selected by
the Company, and shall have certain restrictions as to the Company's ability to
amend the Trust or cancel benefits provided thereunder. Any assets contained in
the Trust shall, at all times, be specifically subject to the claims of the
Company's general creditors in the event of bankruptcy or
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insolvency; such terms to be specifically defined within the provisions of the
Trust, along with the required procedure for notifying the Trustee of any
bankruptcy or insolvency.
At any time following the Effective Date hereof, the Company may, but is
not obligated to, deposit assets in the Trust in an amount equal to or less than
the aggregate Severance Benefits which may become due to the Executive under
Sections 3.3(a), (b), and (c), and 5.1 of this Agreement.
Upon a Change in Control, the Company shall deposit assets in such Trust in
an amount equal to the estimated aggregate Severance Benefits which may become
due to the Executive under Sections 3.3(a), (b), and (c), 5.1, and 8.1 of this
Agreement. Such deposited amounts shall be reviewed and increased, if necessary,
every six (6) months following a Change in Control to reflect the Executive's
estimated aggregate Severance Benefits at such time.
Article 7. The Company's Payment Obligation
The Company's obligation to make the payments and the arrangements provided
for herein shall be absolute and unconditional, and shall not be affected by any
circumstances, including, without limitation, any offset, counterclaim,
recoupment, defense, or other right which the Company may have against the
Executive or anyone else. All amounts payable by the Company hereunder shall be
paid without notice or demand. Each and every payment made hereunder by the
Company shall be final, and the Company shall not seek to recover all or any
part of such payment from the Executive or from whomsoever may be entitled
thereto, for any reasons whatsoever.
The Executive shall not be obligated to seek other employment in mitigation
of the amounts payable or arrangements made under any provision of this
Agreement, and the obtaining of any such other employment shall in no event
effect any reduction of the Company's obligations to make the payments and
arrangements required to be made under this Agreement, except to the extent
provided in Section 3.3(d) herein.
Article 8. Legal Remedies
8.1 Payment of Legal Fees. To the extent permitted by law, the Company
shall pay all legal fees, costs of litigation, prejudgment interest, and other
expenses incurred in good faith by the Executive as a result of the Company's
refusal to provide the Severance Benefits to which the Executive becomes
entitled under this Agreement, or as a result of the Company's contesting the
validity, enforceability, or interpretation of this Agreement, or as a result of
any conflict (including conflicts related to the calculation of parachute
payments) between the parties pertaining to this Agreement.
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8.2 Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled by arbitration, conducted before a panel of
three (3) arbitrators sitting in a location selected by the Executive within
fifty (50) miles from the location of his employment with the Company, in
accordance with the rules of the American Arbitration Association then in
effect.
Judgment may be entered on the award of the arbitrator in any court having
proper jurisdiction. All expenses of such arbitration, including the fees and
expenses of the counsel for the Executive, shall be borne by the Company.
Article 9. Outplacement Assistance
Following a Qualifying Termination (as described in Section 3.2 herein),
the Executive shall be reimbursed by the Company for the costs of all
outplacement services obtained by the Executive within the two (2) year period
after the Effective Date of Termination; provided, however, that the total
reimbursement shall be limited to an amount equal to fifteen percent (15%) of
the Executive's Base Salary as of the Effective Date of Termination.
Article 10. Successors and Assignment
10.1 Successors to the Company. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation, or otherwise)
of all or substantially all of the business and/or assets of the Company or of
any division or subsidiary thereof to expressly assume and agree to perform the
Company's obligations under this Agreement in the same manner and to the same
extent that the Company would be required to perform them if no such succession
had taken place. The date on which any such succession becomes effective shall
be deemed to be the date of the Change in Control.
10.2 Assignment by the Executive. This Agreement shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees, and legatees. If the Executive dies while any amount would still be
payable to him hereunder had he continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to the Executive's Beneficiary. If the Executive has not named a
Beneficiary, then such amounts shall be paid to the Executive's devisee,
legatee, or other designee, or if there is no such designee, to the Executive's
estate.
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Article 11. Miscellaneous
1.1 Employment Status. Except as may be provided under any other agreement
between the Executive and the Company, the employment of the Executive by the
Company is "at will," and may be terminated by either the Executive or the
Company at any time, subject to applicable law.
11.2 Beneficiaries. The Executive may designate one or more persons or
entities as the primary and/or contingent Beneficiaries of any Severance
Benefits owing to the Executive under this Agreement. Such designation must be
in the form of a signed writing acceptable to the Committee. The Executive may
make or change such designations at any time.
11.3 Severability. In the event any provision of this Agreement shall be
held illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of the Agreement, and the Agreement shall be
construed and enforced as if the illegal or invalid provision had not been
included. Further, the captions of this Agreement are not part of the provisions
hereof and shall have no force and effect.
11.4 Modification. No provision of this Agreement may be modified, waived,
or discharged unless such modification, waiver, or discharge is agreed to in
writing and signed by the Executive and by an authorized member of the
Committee, or by the respective parties' legal representatives and successors.
11.5 Applicable Law. To the extent not preempted by the laws of the United
States, the laws of the state of Illinois shall be the controlling law in all
matters relating to this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on this
__________ day of ____________________, 1997.
FMC Corporation Executive:
By:_________________________ ___________________________
Its:________________________ ___________________________
Attest:_____________________ ___________________________
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FORM II
EXECUTIVE SEVERANCE
AGREEMENT FOR _____________
FMC Corporation
Contents
- --------------------------------------------------------
Page
Article 1. Establishment, Term, and Purpose 2
Article 2. Definitions 2
Article 3. Severance Benefits 7
Article 4. Form and Timing of Severance Benefits 10
Article 5. Excise Tax Equalization Payment 10
Article 6. Establishment of Trust 11
Article 7. The Company's Payment Obligation 12
Article 8. Legal Remedies 12
Article 9. Outplacement Assistance 13
Article 10. Successors and Assignment 13
Article 11. Miscellaneous 13
FMC Corporation
Executive Severance Agreement
THIS AGREEMENT is made and entered into as of the ____ day of
_____________, 19__, by and between FMC Corporation (hereinafter referred to as
the "Company") and _________________ (hereinafter referred to as the
"Executive").
WHEREAS, the Board of Directors of the Company has approved the Company
entering into severance agreements with certain key executives of the Company;
WHEREAS, the Executive is a key executive of the Company;
WHEREAS, should the possibility of a Change in Control of the Company
arise, the Board believes it is imperative that the Company and the Board should
be able to rely upon the Executive to continue in his position, and that the
Company should be able to receive and rely upon the Executive's advice, if
requested, as to the best interests of the Company and its shareholders without
concern that the Executive might be distracted by the personal uncertainties and
risks created by the possibility of a Change in Control;
WHEREAS, should the possibility of a Change in Control arise, in addition
to his regular duties, the Executive may be called upon to assist in the
assessment of such possible Change in Control, advise management and the Board
as to whether such Change in Control would be in the best interests of the
Company and its shareholders, and to take such other actions as the Board might
determine to be appropriate; and
WHEREAS, the Executive and the Company desire that the terms of this
Agreement shall completely replace and supersede the provisions set forth in the
FMC Corporation Executive Severance Plan, setting forth the terms and provisions
with respect to the Executive's entitlement to payments and benefits following a
Change in Control of the Company.
NOW THEREFORE, to assure the Company that it will have the continued
dedication of the Executive and the availability of his advice and counsel
notwithstanding the possibility, threat, or occurrence of a Change in Control of
the Company, and to induce the Executive to remain in the employ of the Company,
and for other good and valuable consideration, the Company and the Executive
agree as follows:
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Article 1. Establishment, Term, and Purpose
This Agreement will commence on the Effective Date and shall continue in
effect for three (3) full years. However, at the end of such three (3) year
period and, if extended, at the end of each additional year thereafter, the term
of this Agreement shall be extended automatically for one (1) additional year,
unless the Committee delivers written notice six (6) months prior to the end of
such term, or extended term, to each Executive, that the Agreement will not be
extended. In such case, the Agreement will terminate at the end of the term, or
extended term, then in progress.
However, in the event a Change in Control occurs during the original or any
extended term, this Agreement will remain in effect for the longer of: (i)
twenty-four (24) months beyond the month in which such Change in Control
occurred; or (ii) until all obligations of the Company hereunder have been
fulfilled, and until all benefits required hereunder have been paid to the
Executive.
Article 2. Definitions
Whenever used in this Agreement, the following terms shall have the
meanings set forth below and, when the meaning is intended, the initial letter
of the word is capitalized.
2.1 "Base Salary" means the salary of record paid to an Executive as
annual salary, excluding amounts received under incentive or other bonus plans,
whether or not deferred.
2.2 "Beneficial Owner" shall have the meaning ascribed to such term in
Rule 13d-3 of the General Rules and Regulations under the Exchange Act.
2.3 "Beneficiary" means the persons or entities designated or deemed
designated by the Executive pursuant to Section 11.2 herein.
2.4 "Board" means the Board of Directors of the Company.
2.5 "Cause" means: (a) the Executive's willful and continued failure to
substantially perform his duties with the Company (other than any such failure
resulting from Disability or occurring after issuance by the Executive of a
Notice of Termination for Good Reason), after a written demand for substantial
performance is delivered to the Executive that specifically identifies the
manner in which the Company believes that the Executive has willfully failed to
substantially perform his duties, and after the Executive has failed to resume
substantial performance of his duties on a continuous basis within thirty (30)
calendar days of receiving such demand; (b) the Executive's willfully engaging
in conduct (other than conduct covered under (a) above) which is demonstrably
and materially injurious to the Company, monetarily or otherwise; or (c) the
Executive's having been convicted of, or plead guilty or nolo contendere to, a
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felony. For purposes of this subparagraph, no act, or failure to act, on the
Executive's part shall be deemed "willful" unless done, or omitted to be done,
by the Executive not in good faith and without reasonable belief that the action
or omission was in the best interests of the Company. Any act, or failure to
act, based upon authority given pursuant to a resolution duly adopted by the
Board or upon the instructions of the chief executive officer or a senior
officer of the Company or based upon the advice of counsel for the Company shall
be conclusively presumed to be done, or omitted to be done, by the Executive in
good faith and in the best interests of the Company. The cessation of
employment of the Executive shall not be deemed to be for Cause unless and until
there shall have been delivered to the Executive a copy of a resolution duly
adopted by the affirmative vote of not less than three-quarters of the entire
membership of the Board at a meeting of the Board called and held for such
purpose, (after reasonable notice is provided to the Executive and the Executive
is given an opportunity, together with counsel, to be heard before the Board),
finding that, in the good faith opinion of the Board, the Executive is guilty of
the conduct described in subparagraph (a) or (b) above, and specifying the
particulars thereof in detail. The Executive shall not be precluded from
contesting such resolution pursuant to an arbitration proceeding under Section
8.2 of this Agreement.
2.6 "Change in Control" of the Company shall be deemed to have occurred as
of the first day that any one or more of the following conditions is satisfied:
(a) The "beneficial ownership" (as defined in Rule 13d-3 under the
Exchange Act) of securities representing more than 20 percent (20%) of
the combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors
(the "Company Voting Securities") is acquired by a Person (other than
the Company, any trustee or other fiduciary holding securities under
an employee benefit plan of the Company or an affiliate thereof, any
corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of
stock of the Company); provided, however that any acquisition from the
Company or any acquisition pursuant to a transaction which complies
with clauses (i), (ii), and (iii) of paragraph (c) of this Section 2.6
shall not be a Change in Control under this paragraph (a); or
(b) Individuals who, as of the date hereof, constitute the Board of
Directors (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's stockholders,
was approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a
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member of the Incumbent Board, but excluding, for this purpose, any
such individual whose initial assumption of office occurs as a result
of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other
than the Board; or
(c) Consummation by the Company of a reorganization, merger, or
consolidation or sale or other disposition of all or substantially all
of the assets of the Company or the acquisition of assets or stock or
another entity (a "Business Combination"), in each case, unless
immediately following such Business Combination: (i) more than 60% of
the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors of (x) the
corporation resulting from such Business Combination (the "Surviving
Corporation"), or (y) if applicable, 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 (the "Parent Corporation"), is represented, directly or
indirectly by Company Voting Securities outstanding immediately prior
to such Business Combination (or, if applicable, is represented by
shares into which such Company Voting Securities were converted
pursuant to such Business Combination), and such voting power among
the holders thereof is in substantially the same proportions as their
ownership, immediately prior to such Business Combination, of the
Company Voting Securities, (ii) no Person (excluding any employee
benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly
or indirectly, 20% or more of the combined voting power of the then
outstanding voting securities eligible to elect directors of the
Parent Corporation (or, if there is no Parent Corporation, the
Surviving Corporation) except to the extent that such ownership of the
Company existed prior to the Business Combination and (iii) at least a
majority of the members of the board of directors of the Parent
Corporation (or, if there is no Parent Corporation, the Surviving
Corporation) were members of the Incumbent Board at the time of the
execution of the initial agreement, or of the action of the Board,
providing for such Business Combination; or
(d) Approval by the stockholders of the Company of a complete liquidation
or dissolution of the Company.
However, in no event shall a Change in Control be deemed to have occurred,
with respect to the Executive, if the Executive is part of a purchasing group
which consummates the Change-in-Control transaction. The Executive shall be
deemed "part of a purchasing group" for purposes of the preceding sentence if
the Executive is an equity participant in the purchasing company or group
(except for: (i) passive ownership of less than three percent (3%) of the
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stock of the purchasing company; or (ii) ownership of equity participation in
the purchasing company or group which is otherwise not significant, as
determined prior to the Change in Control by a majority of the nonemployee
continuing Directors).
2.7 "Code" means the United States Internal Revenue Code of 1986, as
amended, and any successors thereto.
2.8 "Committee" means the Compensation and Organization Committee of the
Board or any other committee appointed by the Board to perform the functions of
the Compensation and Organization Committee.
2.9 "Company" means FMC Corporation, a Delaware corporation, or any
successor thereto as provided in Article 10 herein.
2.10 "Disability" means complete and permanent inability by reason of
illness or accident to perform the duties of the occupation at which the
Executive was employed when such disability commenced.
2.11 "Effective Date" means the date of this Agreement set forth above.
2.12 "Effective Date of Termination" means the date on which a Qualifying
Termination occurs which triggers the payment of Severance Benefits hereunder.
2.13 "Exchange Act" means the United States Securities Exchange Act of
1934, as amended.
2.14 "Good Reason" shall mean, without the Executive's express written
consent, the occurrence of any one or more of the following:
(a) The assignment of the Executive to duties materially inconsistent with
the Executive's authorities, duties, responsibilities, and status
(including offices and reporting requirements) as an employee of the
Company, or a reduction or alteration in the nature or status of the
Executive's authorities, duties, or responsibilities from those in
effect immediately preceding the Change in Control;
(b) The Company's requiring the Executive to (i) be based at a location
which is at least twenty-five (25) miles from the office where the
Executive is located at the time of the Change in Control, (not
including for this clause (i) required travel on the Company's
business to an extent substantially consistent with the Executive's
business immediately prior to the Change in Control) or (ii) travel on
Company business to an extent substantially greater than the travel
obligations of
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the Executive immediately prior to the Change in Control;
(c) A reduction by the Company in the Executive's Base Salary as in effect
immediately prior to the Change in Control or as the same shall be
increased from time to time;
(d) The failure of the Company to (i) continue in effect any employee
benefit plan, compensation plan, welfare benefit plan or material
fringe benefit plan in which the Executive is participating
immediately prior to such Change in Control or the taking of any
action by the Company which would adversely affect the Executive's
participation in or reduce the Executive's benefits under any such
plan, unless the Executive is permitted to participate in other plans
providing Executive with at least substantially equivalent benefits in
the aggregate (at substantially equivalent cost with respect to
welfare benefit plans), or (ii) provide the Executive with paid
vacation in accordance with the most favorable vacation policies of
the Company and its affiliated companies as in effect for the
Executive immediately prior to such Change in Control, including the
crediting of all service for which the Executive had been credited
under such vacation policies prior to the Change in Control;
(e) The failure of the Company to obtain a satisfactory agreement from any
successor to the Company to assume and agree to perform this
Agreement, as contemplated in Article 10 herein; or
(f) Any termination of Executive's employment by the Company that is not
effected pursuant to a Notice of Termination.
The existence of Good Reason shall not be affected by the Executive's
temporary incapacity due to physical or mental illness not constituting a
Disability. The Executive's Retirement shall constitute a waiver of the
Executive's rights with respect to any circumstance constituting Good Reason.
The Executive's continued employment shall not constitute a waiver of the
Executive's rights with respect to any circumstance constituting Good Reason.
2.15 "Notice of Termination" shall mean a written notice which shall
indicate the specific termination provision in this Agreement relied upon, and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment under the
provision so indicated.
2.16 "Person" shall have the meaning ascribed to such term in Section
3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof,
including a "group" as provided in Section 13(d).
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2.17 "Qualifying Termination" means any of the events described in Section
3.2 herein, the occurrence of which triggers the payment of Severance Benefits
hereunder.
2.18 "Retirement" means the Executive's voluntary termination of
employment in a manner which qualifies the Executive to receive immediately
payable retirement benefits under the Company's tax-qualified retirement plan or
under the successor or replacement of such retirement plan if it is then no
longer in effect; provided, that a termination for Good Reason which otherwise
constitutes Retirement shall be treated as Good Reason for purposes of being a
Qualifying Termination under this Agreement.
2.19 "Severance Benefits" means the payment of severance compensation as
provided in Section 3.3 herein.
2.20 "Trust" means the Company grantor trust to be created pursuant to
Article 6 of this Agreement.
Article 3. Severance Benefits
3.1 Right to Severance Benefits. The Executive shall be entitled to
receive from the Company Severance Benefits, as described in Section 3.3 herein,
if there has been a Change in Control of the Company and if, within twenty-four
(24) calendar months following the Change in Control, a Qualifying Termination
of the Executive has occurred.
The Executive shall not be entitled to receive Severance Benefits if he is
terminated for Cause, or if his employment with the Company ends due to death,
Disability, or Retirement or due to a voluntary termination of employment by the
Executive without Good Reason.
3.2 Qualifying Termination. The occurrence of any one or more of the
following events shall trigger the payment of Severance Benefits to the
Executive under this Agreement:
(a) An involuntary termination of the Executive's employment by the
Company for reasons other than Cause within twenty-four (24) calendar
months following the month in which a Change in Control of the Company
occurs;
(b) A voluntary termination by the Executive for Good Reason within
twenty-four (24) calendar months following the month in which a Change
in Control of the Company occurs pursuant to a Notice of Termination
delivered to the Company by the Executive; or
(c) The Company or any successor company breaches any of the provisions of
this Agreement following a Change in Control.
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3.3 Description of Severance Benefits. In the event the Executive becomes
entitled to receive Severance Benefits, as provided in Sections 3.1 and 3.2
herein, the Company shall pay to the Executive and provide him with the
following:
(a) An amount equal to three (3) times the highest rate of the Executive's
annualized Base Salary in effect at any time during the [36-month
period immediately] prior to the Effective Date of Termination.
(b) An amount equal to three (3) times the highest of the Executive's
target annual [Total] Management Incentive Award established [for any
plan year][the three (3) plan years] up to and including the plan year
in which the Executive's Effective Date of Termination occurs.
(c) An amount equal to the Executive's unpaid Base Salary, and unused and
accrued vacation pay, through the Effective Date of Termination.
(d) A continuation of the welfare benefits of health care, life and
accidental death and dismemberment, and disability insurance coverage
for three (3) full years after the Effective Date of Termination.
These benefits shall be provided to the Executive (and to the
Executive's covered spouse and dependents) at the same premium cost,
and at the same coverage level, as in effect as of the Executive's
Effective Date of Termination.
The continuation of these welfare benefits shall be discontinued prior
to the end of the three (3) year period in the event the Executive has
available substantially similar benefits at a comparable cost from a
subsequent employer, as determined by the Committee.
Incentive awards granted under the FMC 1995 Management Incentive Plan, FMC
1995 Stock Option Plan, and other incentive arrangements adopted by the Company
shall be treated pursuant to the terms of the applicable plan.
The aggregate benefits accrued by the Executive as of the Effective Date of
Termination under the FMC Corporation Salaried Employees' Retirement Plan, the
FMC Employees' Thrift and Stock Purchase Plan, the FMC Salaried Employees'
Equivalent Retirement Plan, and other savings and retirement plans sponsored by
the Company shall be distributed pursuant to the terms of the applicable plan.
For purposes of the Company's nonqualified retirement plans, such benefits shall
be calculated under the assumption that the Executive's employment continued
following the Effective Date of Termination for three (3) full years (i.e.,
three (3) additional years of age and service credits shall be added); provided,
however, that for purposes of determining "final average pay" under such
programs, the Executive's actual pay history as of the Effective Date of
Termination shall be used.
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Compensation which has been deferred under the Deferred Compensation Plan
of FMC, FMC Deferred Compensation Equivalent Retirement and Thrift Plan or other
plans sponsored by the Company, as applicable, together with all interest that
has been credited with respect to any such deferred compensation balances, shall
be distributed pursuant to the terms of the applicable plan.
3.4 Termination for Disability. Following a Change in Control of the
Company, if an Executive's employment is terminated due to Disability, the
Executive shall receive his Base Salary through the Effective Date of
Termination, at which point in time the Executive's benefits shall be determined
in accordance with the Company's disability, retirement, insurance, and other
applicable plans and programs then in effect. In the event the Executive's
employment is terminated due to Disability, the Executive shall not be entitled
to the Severance Benefits described in Section 3.3.
3.5 Termination for Retirement or Death. Following a Change in Control of
the Company, if the Executive's employment is terminated by reason of his
Retirement or death, the Executive's benefits shall be determined in accordance
with the Company's retirement, survivor's benefits, insurance, and other
applicable programs of the Company then in effect. In the event the Executive's
employment is terminated by reason of his Retirement or death, the Executive
shall not be entitled to the Severance Benefits described in Section 3.3.
3.6 Termination for Cause, or Other Than for Good Reason or Retirement.
Following a Change in Control of the Company, if the Executive's employment is
terminated either: (a) by the Company for Cause; or (b) by the Executive (other
than for Retirement, Good Reason, or under circumstances giving rise to a
Qualifying Termination described in Section 3.2(c) herein), the Company shall
pay the Executive his full Base Salary and accrued vacation through the
Effective Date of Termination, at the rate then in effect, plus all other
amounts to which the Executive is entitled under any compensation plans of the
Company, at the time such payments are due, and the Company shall have no
further obligations to the Executive under this Agreement.
3.7 Notice of Termination. Any termination of employment by the Company or
by the Executive for Good Reason shall be communicated by a Notice of
Termination.
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Article 4. Form and Timing of Severance Benefits
4.1 Form and Timing of Severance Benefits. The Severance Benefits
described in Sections 3.3(a), 3.3(b), and 3.3(c) herein shall be paid in cash to
the Executive in a single lump sum as soon as practicable following the
Effective Date of Termination, but in no event beyond thirty (30) days from such
date.
4.2 Withholding of Taxes. The Company shall be entitled to withhold from
any amounts payable under this Agreement all taxes as legally shall be required
(including, without limitation, any United States federal taxes and any other
state, city, or local taxes).
Article 5. Excise Tax Equalization Payment
5.1 Excise Tax Equalization Payment. In the event that the Executive
becomes entitled to Severance Benefits or any other payment or benefit under
this Agreement, or under any other agreement with or plan of the Company (in the
aggregate, the "Total Payments"), if all or any part of the Total Payments will
be subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or
any similar tax that may hereafter be imposed), the Company shall pay to the
Executive in cash an additional amount (the "Gross-Up Payment") such that the
net amount retained by the Executive after deduction of any Excise Tax upon the
Total Payments and any federal, state, and local income tax, penalties,
interest, and Excise Tax upon the Gross-Up Payment provided for by this Section
5.1 (including FICA and FUTA), shall be equal to the Total Payments. Such
payment shall be made by the Company to the Executive as soon as practical
following the Effective Date of Termination, but in no event beyond thirty (30)
days from such date.
5.2 Tax Computation. For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the amounts of such Excise Tax:
(a) Any other payments or benefits received or to be received by the
Executive in connection with a Change in Control of the Company or the
Executive's termination of employment (whether pursuant to the terms
of this Agreement or any other plan, arrangement, or agreement with
the Company, or with any Person whose actions result in a Change in
Control of the Company or any Person affiliated with the Company or
such Persons) shall be treated as "parachute payments" within the
meaning of Section 280G(b)(2) of the Code, and all "excess parachute
payments" within the meaning of Section 280G(b)(1) shall be treated as
subject to the Excise Tax, unless in the opinion of tax counsel as
supported by the Company's independent auditors and acceptable to the
Executive, such other payments or benefits (in whole or in part) do
not constitute parachute payments, or unless such excess parachute
payments (in whole or in part) represent reasonable compensation for
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services actually rendered within the meaning of Section 280G(b)(4) of
the Code in excess of the base amount within the meaning of Section
280G(b)(3) of the Code, or are otherwise not subject to the Excise
Tax;
(b) The amount of the Total Payments which shall be treated as subject to
the Excise Tax shall be equal to the lesser of: (i) the total amount
of the Total Payments; or (ii) the amount of excess parachute payments
within the meaning of Section 280G(b)(1) (after applying clause (a)
above); and
(c) The value of any noncash benefits or any deferred payment or benefit
shall be determined by the Company's independent auditors in
accordance with the principles of Sections 280G(d)(3) and (4) of the
Code.
For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay federal income taxes at the highest marginal
rate of federal income taxation in the calendar year in which the Gross-Up
Payment is to be made, and state and local income taxes at the highest marginal
rate of taxation in the state and locality of the Executive's residence on the
Effective Date of Termination, net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and local taxes.
5.3 Subsequent Recalculation. In the event the Internal Revenue Service
adjusts the computation of the Company under Section 5.2 herein so that the
Executive did not receive the greatest net benefit, the Company shall reimburse
the Executive for the full amount necessary to make the Executive whole, plus a
market rate of interest, as determined by the Committee.
Article 6. Establishment of Trust
As soon as practicable following the Effective Date hereof, the Company
shall create a Trust (which shall be a grantor trust within the meaning of
Sections 671-678 of the Internal Revenue Code) for the benefit of the Executive
and Beneficiaries, as appropriate. The Trust shall have a Trustee as selected by
the Company, and shall have certain restrictions as to the Company's ability to
amend the Trust or cancel benefits provided thereunder. Any assets contained in
the Trust shall, at all times, be specifically subject to the claims of the
Company's general creditors in the event of bankruptcy or insolvency; such terms
to be specifically defined within the provisions of the Trust, along with the
required procedure for notifying the Trustee of any bankruptcy or insolvency.
At any time following the Effective Date hereof, the Company may, but is
not obligated to, deposit assets in the Trust in an amount equal to or less than
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the aggregate Severance Benefits which may become due to the Executive under
Sections 3.3(a), (b), and (c), 5.1 of this Agreement.
Upon a Change in Control, the Company shall deposit assets in such Trust in
an amount equal to the estimated aggregate Severance Benefits which may become
due to the Executive under Sections 3.3(a), (b), and (c), and 5.1, and 8.1 of
this Agreement. Such deposited amounts shall be reviewed and increased, if
necessary, every six (6) months following a Change in Control to reflect the
Executive's estimated aggregate Severance Benefits at such time.
Article 7. The Company's Payment Obligation
The Company's obligation to make the payments and the arrangements provided
for herein shall be absolute and unconditional, and shall not be affected by any
circumstances, including, without limitation, any offset, counterclaim,
recoupment, defense, or other right which the Company may have against the
Executive or anyone else. All amounts payable by the Company hereunder shall be
paid without notice or demand. Each and every payment made hereunder by the
Company shall be final, and the Company shall not seek to recover all or any
part of such payment from the Executive or from whomsoever may be entitled
thereto, for any reasons whatsoever.
The Executive shall not be obligated to seek other employment in mitigation
of the amounts payable or arrangements made under any provision of this
Agreement, and the obtaining of any such other employment shall in no event
effect any reduction of the Company's obligations to make the payments and
arrangements required to be made under this Agreement, except to the extent
provided in Section 3.3(d) herein.
Article 8. Legal Remedies
8.1 Payment of Legal Fees. To the extent permitted by law, the Company
shall pay all legal fees, costs of litigation, prejudgment interest, and other
expenses incurred in good faith by the Executive as a result of the Company's
refusal to provide the Severance Benefits to which the Executive becomes
entitled under this Agreement, or as a result of the Company's contesting the
validity, enforceability, or interpretation of this Agreement, or as a result of
any conflict (including conflicts related to the calculation of parachute
payments) between the parties pertaining to this Agreement.
8.2 Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled by arbitration, conducted before a panel of
three (3) arbitrators sitting in a location selected by the Executive within
fifty (50) miles from the location of his employment with the Company, in
accordance with the rules of the American Arbitration Association then in
effect.
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Judgment may be entered on the award of the arbitrator in any court having
proper jurisdiction. All expenses of such arbitration, including the fees and
expenses of the counsel for the Executive, shall be borne by the Company.
Article 9. Outplacement Assistance
Following a Qualifying Termination (as described in Section 3.2 herein),
the Executive shall be reimbursed by the Company for the costs of all
outplacement services obtained by the Executive within the two (2) year period
after the Effective Date of Termination; provided, however, that the total
reimbursement shall be limited to an amount equal to fifteen percent (15%) of
the Executive's Base Salary as of the Effective Date of Termination.
Article 10. Successors and Assignment
10.1 Successors to the Company. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation, or otherwise)
of all or substantially all of the business and/or assets of the Company or of
any division or subsidiary thereof to expressly assume and agree to perform the
Company's obligations under this Agreement in the same manner and to the same
extent that the Company would be required to perform them if no such succession
had taken place. The date on which any such succession becomes effective shall
be deemed to be the date of the Change in Control.
10.2 Assignment by the Executive. This Agreement shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees, and legatees. If the Executive dies while any amount would still be
payable to him hereunder had he continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to the Executive's Beneficiary. If the Executive has not named a
Beneficiary, then such amounts shall be paid to the Executive's devisee,
legatee, or other designee, or if there is no such designee, to the Executive's
estate.
Article 11. Miscellaneous
1.1 Employment Status. Except as may be provided under any other agreement
between the Executive and the Company, the employment of the Executive by the
Company is "at will," and may be terminated by either the Executive or the
Company at any time, subject to applicable law.
11.2 Beneficiaries. The Executive may designate one or more persons or
entities as the primary and/or contingent Beneficiaries of any Severance
Benefits owing to the Executive under this Agreement. Such designation must be
in the form of a signed writing acceptable to the Committee. The Executive may
make or change such designations at any time.
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11.3 Severability. In the event any provision of this Agreement shall be
held illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of the Agreement, and the Agreement shall be
construed and enforced as if the illegal or invalid provision had not been
included. Further, the captions of this Agreement are not part of the provisions
hereof and shall have no force and effect.
11.4 Modification. No provision of this Agreement may be modified, waived,
or discharged unless such modification, waiver, or discharge is agreed to in
writing and signed by the Executive and by an authorized member of the
Committee, or by the respective parties' legal representatives and successors.
11.5 Applicable Law. To the extent not preempted by the laws of the United
States, the laws of the state of Illinois shall be the controlling law in all
matters relating to this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on this
__________ day of ____________________, 1997.
FMC Corporation Executive:
By:
---------------------------- ---------------------------
Its:
---------------------------
Attest:
------------------------
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FORM III
Executive Severance
Agreement for
-------
FMC Corporation
Contents
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Page
Article 1. Establishment, Term, and Purpose 2
Article 2. Definitions 2
Article 3. Severance Benefits 7
Article 4. Form and Timing of Severance Benefits 9
Article 5. Excise Tax Equalization Payment 10
Article 6. Establishment of Trust 11
Article 7. The Company's Payment Obligation 12
Article 8. Legal Remedies 12
Article 9. Outplacement Assistance 13
Article 10. Successors and Assignment 13
Article 11. Miscellaneous 13
FMC Corporation
Executive Severance Agreement
THIS AGREEMENT is made and entered into as of the ____ day of ____________,
____, by and between FMC Corporation (hereinafter referred to as the "Company")
and (ename) (hereinafter referred to as the "Executive").
WHEREAS, the Board of Directors of the Company has approved the Company
entering into severance agreements with certain key executives of the Company;
WHEREAS, the Executive is a key executive of the Company;
WHEREAS, should the possibility of a Change in Control of the Company
arise, the Board believes it is imperative that the Company and the Board should
be able to rely upon the Executive to continue in his position, and that the
Company should be able to receive and rely upon the Executive's advice, if
requested, as to the best interests of the Company and its shareholders without
concern that the Executive might be distracted by the personal uncertainties and
risks created by the possibility of a Change in Control;
WHEREAS, should the possibility of a Change in Control arise, in addition
to his regular duties, the Executive may be called upon to assist in the
assessment of such possible Change in Control, advise management and the Board
as to whether such Change in Control would be in the best interests of the
Company and its shareholders, and to take such other actions as the Board might
determine to be appropriate; and
WHEREAS, the Executive and the Company desire that the terms of this
Agreement shall completely replace and supersede the provisions set forth in the
FMC Corporation Executive Severance Plan, setting forth the terms and provisions
with respect to the Executive's entitlement to payments and benefits following a
Change in Control of the Company.
NOW THEREFORE, to assure the Company that it will have the continued
dedication of the Executive and the availability of his advice and counsel
notwithstanding the possibility, threat, or occurrence of a Change in Control of
the Company, and to induce the Executive to remain in the employ of the Company,
and for other good and valuable consideration, the Company and the Executive
agree as follows:
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Article 1. Establishment, Term, and Purpose
This Agreement will commence on the Effective Date and shall continue in
effect for three (3) full years. However, at the end of such three (3) year
period and, if extended, at the end of each additional year thereafter, the term
of this Agreement shall be extended automatically for one (1) additional year,
unless the Committee delivers written notice six (6) months prior to the end of
such term, or extended term, to each Executive, that the Agreement will not be
extended. In such case, the Agreement will terminate at the end of the term, or
extended term, then in progress.
However, in the event a Change in Control occurs during the original or any
extended term, this Agreement will remain in effect for the longer of: (i)
twenty-four (24) months beyond the month in which such Change in Control
occurred; or (ii) until all obligations of the Company hereunder have been
fulfilled, and until all benefits required hereunder have been paid to the
Executive.
Article 2. Definitions
Whenever used in this Agreement, the following terms shall have the
meanings set forth below and, when the meaning is intended, the initial letter
of the word is capitalized.
2.1 "Base Salary" means the salary of record paid to an Executive as
annual salary, excluding amounts received under incentive or other bonus plans,
whether or not deferred.
2.2 "Beneficial Owner" shall have the meaning ascribed to such term in
Rule 13d-3 of the General Rules and Regulations under the Exchange Act.
2.3 "Beneficiary" means the persons or entities designated or deemed
designated by the Executive pursuant to Section 11.2 herein.
2.4 "Board" means the Board of Directors of the Company.
2.5 "Cause" means: (a) the Executive's willful and continued failure to
substantially perform his duties with the Company (other than any such failure
resulting from Disability or occurring after issuance by the Executive of a
Notice of Termination for Good Reason), after a written demand for substantial
performance is delivered to the Executive that specifically identifies the
manner in which the Company believes that the Executive has willfully failed to
substantially perform his duties, and after the Executive has failed to resume
substantial performance of his duties on a continuous basis within thirty (30)
calendar days of receiving such demand; (b) the Executive's willfully engaging
in conduct (other than conduct covered under (a) above) which is demonstrably
and materially injurious to the Company, monetarily or otherwise; or (c) the
Executive's having been convicted of, or plead guilty or nolo contendere to, a
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felony. For purposes of this subparagraph, no act, or failure to act, on the
Executive's part shall be deemed "willful" unless done, or omitted to be done,
by the Executive not in good faith and without reasonable belief that the action
or omission was in the best interests of the Company. Any act, or failure to
act, based upon authority given pursuant to a resolution duly adopted by the
Board or upon the instructions of the chief executive officer or a senior
officer of the Company or based upon the advice of counsel for the Company shall
be conclusively presumed to be done, or omitted to be done, by the Executive in
good faith and in the best interests of the Company. The cessation of employment
of the Executive shall not be deemed to be for Cause unless and until there
shall have been delivered to the Executive a copy of a resolution duly adopted
by the affirmative vote of not less than three-quarters of the entire membership
of the Board at a meeting of the Board called and held for such purpose, (after
reasonable notice is provided to the Executive and the Executive is given an
opportunity, together with counsel, to be heard before the Board), finding that,
in the good faith opinion of the Board, the Executive is guilty of the conduct
described in subparagraph (a) or (b) above, and specifying the particulars
thereof in detail. The Executive shall not be precluded from contesting such
resolution pursuant to an arbitration proceeding under Section 8.2 of this
Agreement.
2.6 "Change in Control" of the Company shall be deemed to have occurred as
of the first day that any one or more of the following conditions is satisfied:
(a) The "beneficial ownership" (as defined in Rule 13d-3 under the
Exchange Act) of securities representing more than 20 percent (20%) of
the combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors
(the "Company Voting Securities") is acquired by a Person (other than
the Company, any trustee or other fiduciary holding securities under
an employee benefit plan of the Company or an affiliate thereof, any
corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of
stock of the Company); provided, however that any acquisition from the
Company or any acquisition pursuant to a transaction which complies
with clauses (i), (ii), and (iii) of paragraph (c) of this Section 2.6
shall not be a Change in Control under this paragraph (a); or
(b) Individuals who, as of the date hereof, constitute the Board of
Directors (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's stockholders,
was approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a
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member of the Incumbent Board, but excluding, for this purpose, any
such individual whose initial assumption of office occurs as a result
of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other
than the Board; or
(c) Consummation by the Company of a reorganization, merger, or
consolidation or sale or other disposition of all or substantially all
of the assets of the Company or the acquisition of assets or stock or
another entity (a "Business Combination"), in each case, unless
immediately following such Business Combination: (i) more than 60% of
the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors of (x) the
corporation resulting from such Business Combination (the "Surviving
Corporation"), or (y) if applicable, 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 (the "Parent Corporation"), is represented, directly or
indirectly by Company Voting Securities outstanding immediately prior
to such Business Combination (or, if applicable, is represented by
shares into which such Company Voting Securities were converted
pursuant to such Business Combination), and such voting power among
the holders thereof is in substantially the same proportions as their
ownership, immediately prior to such Business Combination, of the
Company Voting Securities, (ii) no Person (excluding any employee
benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly
or indirectly, 20% or more of the combined voting power of the then
outstanding voting securities eligible to elect directors of the
Parent Corporation (or, if there is no Parent Corporation, the
Surviving Corporation) except to the extent that such ownership of the
Company existed prior to the Business Combination and (iii) at least a
majority of the members of the board of directors of the Parent
Corporation (or, if there is no Parent Corporation, the Surviving
Corporation) were members of the Incumbent Board at the time of the
execution of the initial agreement, or of the action of the Board,
providing for such Business Combination; or
(d) Approval by the stockholders of the Company of a complete liquidation
or dissolution of the Company.
However, in no event shall a Change in Control be deemed to have occurred,
with respect to the Executive, if the Executive is part of a purchasing group
which consummates the Change-in-Control transaction. The Executive shall be
deemed "part of a purchasing group" for purposes of the preceding sentence if
the Executive is an equity participant in the purchasing company or
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group (except for: (i) passive ownership of less than three percent (3%) of the
stock of the purchasing company; or (ii) ownership of equity participation in
the purchasing company or group which is otherwise not significant, as
determined prior to the Change in Control by a majority of the nonemployee
continuing Directors).
2.7 "Code" means the United States Internal Revenue Code of 1986, as
amended, and any successors thereto.
2.8 "Committee" means the Compensation and Organization Committee of the
Board or any other committee appointed by the Board to perform the functions of
the Compensation and Organization Committee.
2.9 "Company" means FMC Corporation, a Delaware corporation, or any
successor thereto as provided in Article 10 herein.
2.10 "Disability" means complete and permanent inability by reason of
illness or accident to perform the duties of the occupation at which the
Executive was employed when such disability commenced.
2.11 "Effective Date" means the date of this Agreement set forth above.
2.12 "Effective Date of Termination" means the date on which a Qualifying
Termination occurs which triggers the payment of Severance Benefits hereunder.
2.13 "Exchange Act" means the United States Securities Exchange Act of
1934, as amended.
2.14 "Good Reason" shall mean, without the Executive's express written
consent, the occurrence of any one or more of the following:
(a) The assignment of the Executive to duties materially inconsistent with
the Executive's authorities, duties, responsibilities, and status
(including offices and reporting requirements) as an employee of the
Company, or a reduction or alteration in the nature or status of the
Executive's authorities, duties, or responsibilities from those in
effect immediately preceding the Change in Control;
(b) The Company's requiring the Executive to (i) be based at a location
which is at least twenty-five (25) miles from the office where the
Executive is located at the time of the Change in Control, (not
including for this clause (i) required travel on the Company's
business to an extent substantially consistent with the Executive's
business immediately prior to the Change in Control) or (ii) travel on
Company business to an extent substantially greater than the travel
obligations of
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the Executive immediately prior to the Change in Control;
(c) A reduction by the Company in the Executive's Base Salary as in effect
immediately prior to the Change in Control or as the same shall be
increased from time to time;
(d) The failure of the Company to (i) continue in effect any employee
benefit plan, compensation plan, welfare benefit plan or material
fringe benefit plan in which the Executive is participating
immediately prior to such Change in Control or the taking of any
action by the Company which would adversely affect the Executive's
participation in or reduce the Executive's benefits under any such
plan, unless the Executive is permitted to participate in other plans
providing Executive with at least substantially equivalent benefits in
the aggregate (at substantially equivalent cost with respect to
welfare benefit plans), or (ii) provide the Executive with paid
vacation in accordance with the most favorable vacation policies of
the Company and its affiliated companies as in effect for the
Executive immediately prior to such Change in Control, including the
crediting of all service for which the Executive had been credited
under such vacation policies prior to the Change in Control;
(e) The failure of the Company to obtain a satisfactory agreement from any
successor to the Company to assume and agree to perform this
Agreement, as contemplated in Article 10 herein; or
(f) Any termination of Executive's employment by the Company that is not
effected pursuant to a Notice of Termination.
The existence of Good Reason shall not be affected by the Executive's
temporary incapacity due to physical or mental illness not constituting a
Disability. The Executive's Retirement shall constitute a waiver of the
Executive's rights with respect to any circumstance constituting Good Reason.
The Executive's continued employment shall not constitute a waiver of the
Executive's rights with respect to any circumstance constituting Good Reason.
2.15 "Notice of Termination" shall mean a written notice which shall
indicate the specific termination provision in this Agreement relied upon, and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment under the
provision so indicated.
2.16 "Person" shall have the meaning ascribed to such term in Section
3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof,
including a "group" as provided in Section 13(d).
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2.17 "Qualifying Termination" means any of the events described in Section
3.2 herein, the occurrence of which triggers the payment of Severance Benefits
hereunder.
2.18 "Retirement" means the Executive's voluntary termination of employment
in a manner which qualifies the Executive to receive immediately payable
retirement benefits under the Company's tax-qualified retirement plan or under
the successor or replacement of such retirement plan if it is then no longer in
effect; provided, that a termination for Good Reason which otherwise constitutes
Retirement shall be treated as Good Reason for purposes of being a Qualifying
Termination under this Agreement.
2.19 "Severance Benefits" means the payment of severance compensation as
provided in Section 3.3 herein.
2.20 "Trust" means the Company grantor trust to be created pursuant to
Article 6 of this Agreement.
Article 3. Severance Benefits
3.1 Right to Severance Benefits. The Executive shall be entitled to
receive from the Company Severance Benefits, as described in Section 3.3 herein,
if there has been a Change in Control of the Company and if, within twenty-four
(24) calendar months following the Change in Control, a Qualifying Termination
of the Executive has occurred.
The Executive shall not be entitled to receive Severance Benefits if he is
terminated for Cause, or if his employment with the Company ends due to death,
Disability, or Retirement or due to a voluntary termination of employment by the
Executive without Good Reason.
3.2 Qualifying Termination. The occurrence of any one or more of the
following events shall trigger the payment of Severance Benefits to the
Executive under this Agreement:
(a) An involuntary termination of the Executive's employment by the
Company for reasons other than Cause within twenty-four (24) calendar
months following the month in which a Change in Control of the Company
occurs;
(b) A voluntary termination by the Executive for Good Reason within
twenty-four (24) calendar months following the month in which a Change
in Control of the Company occurs pursuant to a Notice of Termination
delivered to the Company by the Executive; or
(c) The Company or any successor company breaches any of the provisions of
this Agreement following a Change in Control.
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3.3 Description of Severance Benefits. In the event the Executive becomes
entitled to receive Severance Benefits, as provided in Sections 3.1 and 3.2
herein, the Company shall pay to the Executive and provide him with the
following:
(a) An amount equal to the highest rate of the Executive's annualized Base
Salary in effect at any time [during the 36-month period immediately]
prior to the Effective Date of Termination.
(b) An amount equal to the highest of the Executive's target annual
[Total] Management Incentive Award established for [any plan year]
[the three (3) plan years] up to and including the plan year in which
the Executive's Effective Date of Termination occurs.
(c) An amount equal to the Executive's unpaid Base Salary, and unused and
accrued vacation pay, through the Effective Date of Termination.
(d) A continuation of the welfare benefits of health care, life and
accidental death and dismemberment, and disability insurance coverage
for three (3) full years after the Effective Date of Termination.
These benefits shall be provided to the Executive (and to the
Executive's covered spouse and dependents) at the same premium cost,
and at the same coverage level, as in effect as of the Executive's
Effective Date of Termination.
The continuation of these welfare benefits shall be discontinued prior
to the end of the three (3) year period in the event the Executive has
available substantially similar benefits at a comparable cost from a
subsequent employer, as determined by the Committee.
Incentive awards granted under the FMC 1995 Management Incentive Plan, FMC
1995 Stock Option Plan, and other incentive arrangements adopted by the Company
shall be treated pursuant to the terms of the applicable plan.
The aggregate benefits accrued by the Executive as of the Effective Date of
Termination under the FMC Corporation Salaried Employees' Retirement Plan, the
FMC Employees' Thrift and Stock Purchase Plan, the FMC Salaried Employees'
Equivalent Retirement Plan, and other savings and retirement plans sponsored by
the Company shall be distributed pursuant to the terms of the applicable plan.
For purposes of the Company's nonqualified retirement plans, such benefits shall
be calculated under the assumption that the Executive's employment continued
following the Effective Date of Termination for three (3) full years (i.e.,
three (3) additional years of age and service credits shall be added); provided,
however, that for purposes of determining "final average pay" under such
programs, the Executive's actual pay history as of the
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Effective Date of Termination shall be used.
Compensation which has been deferred under the Deferred Compensation Plan
of FMC, FMC Deferred Compensation Equivalent Retirement and Thrift Plan or other
plans sponsored by the Company, as applicable, together with all interest that
has been credited with respect to any such deferred compensation balances, shall
be distributed pursuant to the terms of the applicable plan.
3.4 Termination for Disability. Following a Change in Control of the
Company, if an Executive's employment is terminated due to Disability, the
Executive shall receive his Base Salary through the Effective Date of
Termination, at which point in time the Executive's benefits shall be determined
in accordance with the Company's disability, retirement, insurance, and other
applicable plans and programs then in effect. In the event the Executive's
employment is terminated due to Disability, the Executive shall not be entitled
to the Severance Benefits described in Section 3.3.
3.5 Termination for Retirement or Death. Following a Change in Control of
the Company, if the Executive's employment is terminated by reason of his
Retirement or death, the Executive's benefits shall be determined in accordance
with the Company's retirement, survivor's benefits, insurance, and other
applicable programs of the Company then in effect. In the event the Executive's
employment is terminated by reason of his Retirement or death, the Executive
shall not be entitled to the Severance Benefits described in Section 3.3.
3.6 Termination for Cause, or Other Than for Good Reason or Retirement.
Following a Change in Control of the Company, if the Executive's employment is
terminated either: (a) by the Company for Cause; or (b) by the Executive (other
than for Retirement, Good Reason, or under circumstances giving rise to a
Qualifying Termination described in Section 3.2(c) herein), the Company shall
pay the Executive his full Base Salary and accrued vacation through the
Effective Date of Termination, at the rate then in effect, plus all other
amounts to which the Executive is entitled under any compensation plans of the
Company, at the time such payments are due, and the Company shall have no
further obligations to the Executive under this Agreement.
3.7 Notice of Termination. Any termination of employment by the Company or
by the Executive for Good Reason shall be communicated by a Notice of
Termination.
Article 4. Form and Timing of Severance Benefits
4.1 Form and Timing of Severance Benefits. The Severance Benefits
described in Sections 3.3(a), 3.3(b), and 3.3(c) herein shall be paid in cash to
the Executive in a single lump sum as soon as practicable following the
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Effective Date of Termination, but in no event beyond thirty (30) days from such
date.
4.2 Withholding of Taxes. The Company shall be entitled to withhold from
any amounts payable under this Agreement all taxes as legally shall be required
(including, without limitation, any United States federal taxes and any other
state, city, or local taxes).
Article 5. Excise Tax Equalization Payment
5.1 Excise Tax Equalization Payment. In the event that the Executive
becomes entitled to Severance Benefits or any other payment or benefit under
this Agreement, or under any other agreement with or plan of the Company (in the
aggregate, the "Total Payments"), if all or any part of the Total Payments will
be subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or
any similar tax that may hereafter be imposed), the Company shall pay to the
Executive in cash an additional amount (the "Gross-Up Payment") such that the
net amount retained by the Executive after deduction of any Excise Tax upon the
Total Payments and any federal, state, and local income tax, penalties,
interest, and Excise Tax upon the Gross-Up Payment provided for by this Section
5.1 (including FICA and FUTA), shall be equal to the Total Payments. Such
payment shall be made by the Company to the Executive as soon as practical
following the Effective Date of Termination, but in no event beyond thirty (30)
days from such date.
5.2 Tax Computation. For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the amounts of such Excise Tax:
(a) Any other payments or benefits received or to be received by the
Executive in connection with a Change in Control of the Company or the
Executive's termination of employment (whether pursuant to the terms
of this Agreement or any other plan, arrangement, or agreement with
the Company, or with any Person whose actions result in a Change in
Control of the Company or any Person affiliated with the Company or
such Persons) shall be treated as "parachute payments" within the
meaning of Section 280G(b)(2) of the Code, and all "excess parachute
payments" within the meaning of Section 280G(b)(1) shall be treated as
subject to the Excise Tax, unless in the opinion of tax counsel as
supported by the Company's independent auditors and acceptable to the
Executive, such other payments or benefits (in whole or in part) do
not constitute parachute payments, or unless such excess parachute
payments (in whole or in part) represent reasonable compensation for
services actually rendered within the meaning of Section 280G(b)(4) of
the Code in excess of the base amount within the meaning of Section
280G(b)(3) of the Code, or are otherwise not subject to the Excise
Tax;
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(b) The amount of the Total Payments which shall be treated as subject to
the Excise Tax shall be equal to the lesser of: (i) the total amount
of the Total Payments; or (ii) the amount of excess parachute payments
within the meaning of Section 280G(b)(1) (after applying clause (a)
above); and
(c) The value of any noncash benefits or any deferred payment or benefit
shall be determined by the Company's independent auditors in
accordance with the principles of Sections 280G(d)(3) and (4) of the
Code.
For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay federal income taxes at the highest marginal
rate of federal income taxation in the calendar year in which the Gross-Up
Payment is to be made, and state and local income taxes at the highest marginal
rate of taxation in the state and locality of the Executive's residence on the
Effective Date of Termination, net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and local taxes.
5.3 Subsequent Recalculation. In the event the Internal Revenue Service
adjusts the computation of the Company under Section 5.2 herein so that the
Executive did not receive the greatest net benefit, the Company shall reimburse
the Executive for the full amount necessary to make the Executive whole, plus a
market rate of interest, as determined by the Committee.
Article 6. Establishment of Trust
As soon as practicable following the Effective Date hereof, the Company
shall create a Trust (which shall be a grantor trust within the meaning of
Sections 671-678 of the Internal Revenue Code) for the benefit of the Executive
and Beneficiaries, as appropriate. The Trust shall have a Trustee as selected by
the Company, and shall have certain restrictions as to the Company's ability to
amend the Trust or cancel benefits provided thereunder. Any assets contained in
the Trust shall, at all times, be specifically subject to the claims of the
Company's general creditors in the event of bankruptcy or insolvency; such terms
to be specifically defined within the provisions of the Trust, along with the
required procedure for notifying the Trustee of any bankruptcy or insolvency.
At any time following the Effective Date hereof, the Company may, but is
not obligated to, deposit assets in the Trust in an amount equal to or less than
the aggregate Severance Benefits which may become due to the Executive under
Sections 3.3(a), (b), and (c), and 5.1 of this Agreement.
Upon a Change in Control, the Company shall deposit assets in such Trust
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in an amount equal to the estimated aggregate Severance Benefits which may
become due to the Executive under Sections 3.3(a), (b), and (c), 5.1, and 8.1 of
this Agreement. Such deposited amounts shall be reviewed and increased, if
necessary, every six (6) months following a Change in Control to reflect the
Executive's estimated aggregate Severance Benefits at such time.
Article 7. The Company's Payment Obligation
The Company's obligation to make the payments and the arrangements provided
for herein shall be absolute and unconditional, and shall not be affected by any
circumstances, including, without limitation, any offset, counterclaim,
recoupment, defense, or other right which the Company may have against the
Executive or anyone else. All amounts payable by the Company hereunder shall be
paid without notice or demand. Each and every payment made hereunder by the
Company shall be final, and the Company shall not seek to recover all or any
part of such payment from the Executive or from whomsoever may be entitled
thereto, for any reasons whatsoever.
The Executive shall not be obligated to seek other employment in mitigation
of the amounts payable or arrangements made under any provision of this
Agreement, and the obtaining of any such other employment shall in no event
effect any reduction of the Company's obligations to make the payments and
arrangements required to be made under this Agreement, except to the extent
provided in Section 3.3(d) herein.
Article 8. Legal Remedies
8.1 Payment of Legal Fees. To the extent permitted by law, the Company
shall pay all legal fees, costs of litigation, prejudgment interest, and other
expenses incurred in good faith by the Executive as a result of the Company's
refusal to provide the Severance Benefits to which the Executive becomes
entitled under this Agreement, or as a result of the Company's contesting the
validity, enforceability, or interpretation of this Agreement, or as a result of
any conflict (including conflicts related to the calculation of parachute
payments) between the parties pertaining to this Agreement.
8.2 Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled by arbitration, conducted before a panel of
three (3) arbitrators sitting in a location selected by the Executive within
fifty (50) miles from the location of his employment with the Company, in
accordance with the rules of the American Arbitration Association then in
effect.
Judgment may be entered on the award of the arbitrator in any court having
proper jurisdiction. All expenses of such arbitration, including the fees and
expenses of the counsel for the Executive, shall be borne by the Company.
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Article 9. Outplacement Assistance
Following a Qualifying Termination (as described in Section 3.2 herein),
the Executive shall be reimbursed by the Company for the costs of all
outplacement services obtained by the Executive within the two (2) year period
after the Effective Date of Termination; provided, however, that the total
reimbursement shall be limited to an amount equal to fifteen percent (15%) of
the Executive's Base Salary as of the Effective Date of Termination.
Article 10. Successors and Assignment
10.1 Successors to the Company. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation, or otherwise)
of all or substantially all of the business and/or assets of the Company or of
any division or subsidiary thereof to expressly assume and agree to perform the
Company's obligations under this Agreement in the same manner and to the same
extent that the Company would be required to perform them if no such succession
had taken place. The date on which any such succession becomes effective shall
be deemed to be the date of the Change in Control.
10.2 Assignment by the Executive. This Agreement shall inure to the benefit
of and be enforceable by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees, and
legatees. If the Executive dies while any amount would still be payable to him
hereunder had he continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to the
Executive's Beneficiary. If the Executive has not named a Beneficiary, then such
amounts shall be paid to the Executive's devisee, legatee, or other designee, or
if there is no such designee, to the Executive's estate.
Article 11. Miscellaneous
1.1 Employment Status. Except as may be provided under any other agreement
between the Executive and the Company, the employment of the Executive by the
Company is "at will," and may be terminated by either the Executive or the
Company at any time, subject to applicable law.
11.2 Beneficiaries. The Executive may designate one or more persons or
entities as the primary and/or contingent Beneficiaries of any Severance
Benefits owing to the Executive under this Agreement. Such designation must be
in the form of a signed writing acceptable to the Committee. The Executive may
make or change such designations at any time.
11.3 Severability. In the event any provision of this Agreement shall be
held illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of the Agreement, and the Agreement shall be
construed
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and enforced as if the illegal or invalid provision had not been included.
Further, the captions of this Agreement are not part of the provisions hereof
and shall have no force and effect.
11.4 Modification. No provision of this Agreement may be modified, waived,
or discharged unless such modification, waiver, or discharge is agreed to in
writing and signed by the Executive and by an authorized member of the
Committee, or by the respective parties' legal representatives and successors.
11.5 Applicable Law. To the extent not preempted by the laws of the United
States, the laws of the state of Illinois shall be the controlling law in all
matters relating to this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on this ____
day of ______________, 1997.
FMC Corporation Executive:
By: ------------ ----------------------
Its: ------------
Attest: ------------
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