Exhibit 2.3
EMPLOYEE BENEFITS ALLOCATION AGREEMENT
DATED AS OF APRIL 30, 1997
BY AND BETWEEN
MORTON INTERNATIONAL, INC.,
AN INDIANA CORPORATION
AND
NEW MORTON INTERNATIONAL, INC.,
AN INDIANA CORPORATION
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.1 General . . . . . . . . . . . . . . . . 2
Section 1.2 Schedules, Etc. . . . . . . . . . . . . 11
Section 1.3 Certain Constructions . . . . . . . . . 11
ARTICLE II
EMPLOYEE BENEFITS; LABOR MATTERS
Section 2.1 New Morton Free-Standing Qualified
Plan . . . . . . . . . . . . . . . . 12
Section 2.2 Company Retained Qualified Plans . . . 14
Section 2.3 Company-New Morton Joint Qualified
Plans . . . . . . . . . . . . . . . . 15
Section 2.4 Foreign Plans . . . . . . . . . . . . . 22
Section 2.5 Welfare Plans . . . . . . . . . . . . . 24
Section 2.6 Stock Option Plans . . . . . . . . . . 26
Section 2.7 Company Incentive Plans . . . . . . . . 27
Section 2.8 Severance Pay . . . . . . . . . . . . . 29
Section 2.9 Company Restricted Trust . . . . . . . 30
Section 2.10 Company Miscellaneous Plans; Post-
Distribution Liabilities . . . . . . 31
Section 2.11 Collective Bargaining Agreements;
Labor Management Relations Act . . . 31
Section 2.12 Other Balance Sheet Adjustments . . . . 32
Section 2.13 Preservation of Rights To Amend or
Terminate Plans . . . . . . . . . . . 32
Section 2.14 Reimbursement; Indemnification . . . . 33
Section 2.15 Further Transfers . . . . . . . . . . . 34
ARTICLE III
MISCELLANEOUS
Section 3.1 Complete Agreement; Construction . . . 35
Section 3.2 Guarantee of Subsidiaries'
Obligations . . . . . . . . . . . . . 35
Section 3.3 Failure of the Company and New
Morton To Agree on Certain
Determinations . . . . . . . . . . . 36
Section 3.4 Governing Law . . . . . . . . . . . . . 36
Section 3.5 Notices . . . . . . . . . . . . . . . . 37
Section 3.6 Amendments . . . . . . . . . . . . . . 38
Section 3.7 Successors and Assigns . . . . . . . . 38
Section 3.8 Termination . . . . . . . . . . . . . . 38
Section 3.9 No Third Party Beneficiaries . . . . . 38
Section 3.10 Titles and Headings . . . . . . . . . . 38
Section 3.11 Schedules . . . . . . . . . . . . . . . 39
Section 3.12 Legal Enforceability . . . . . . . . . 39
Signatures 40
EMPLOYEE BENEFITS ALLOCATION AGREEMENT
Employee Benefits Allocation Agreement (the
"Agreement"), dated as of April 30, 1997, by and between
Morton International, Inc., an Indiana corporation (the
"Company"), and New Morton International, Inc., an Indiana
corporation and a wholly owned subsidiary of the Company ("New
Morton").
WHEREAS, the Board of Directors of the Company has
determined it is appropriate and desirable to enter into the
Distribution Agreement (the "Distribution Agreement") dated as
of April 30, 1997, by and between the Company and New Morton,
pursuant to which, among other things, the Company will
distribute to holders of its common stock all the issued and
outstanding shares of common stock of New Morton (the
"Distribution");
WHEREAS, the Board of Directors of the Company has
determined it is appropriate and desirable to enter into the
Combination Agreement, dated as of November 25, 1996 (the
"Combination Agreement"), by and among the Company, Autoliv
AB, a corporation organized under the laws of the Kingdom of
Sweden ("Autoliv"), Autoliv, Inc., a Delaware corporation
("New Parent"), and ASP Merger Sub Inc. a Delaware corporation
("Newco Sub") and wholly owned subsidiary of New Parent,
pursuant to which, among other things, Newco Sub will be
merged with and into the Company (the "Merger") and New Parent
will offer to acquire all of the outstanding capital stock of
Autoliv pursuant to the Exchange Offer (as defined in the
Combination Agreement, and, together with the other
transactions contemplated thereby, the "Transactions");
WHEREAS, it is intended that in connection with such
separation and distribution New Morton will adopt employee
benefit plans and programs which are substantially identical
to those sponsored by the Company; and
WHEREAS, in connection with such separation and
distribution, the Company and New Morton desire to provide for
the allocation of assets and liabilities and other matters
relating to employee benefit arrangements.
NOW, THEREFORE, in consideration of the mutual
agreements, provisions and covenants contained in this
Agreement, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 General. As used in this Agreement,
the following terms shall have the following meanings:
Accountants: Ernst & Young or any other "Big Six"
accounting firm which is New Morton's outside auditor.
Bonus Plan: the Morton International, Inc.
executive bonus program which is comprised of the Morton
International, Inc. Key Executive Annual Bonus Program, the
Morton International, Inc. Staff Executive Annual Bonus
Program and the Morton International, Inc. Group Executive
Annual Bonus Program.
Code: the Internal Revenue Code of 1986, as
amended, or any successor legislation.
Collective Bargaining Agreement: any collective
bargaining and other labor agreement to which the Company or
any of its subsidiaries is a party, including, without
limitation, those listed on Schedule A.
Commission: the Securities and Exchange Commission.
Company Business: any business or operation of the
Company and its subsidiaries which is, pursuant to the
Distribution Agreement, to be conducted, following the
Distribution, by the Company or any Company Subsidiary or any
business or operation which is, following the Distribution,
otherwise conducted by the Company or any Company Subsidiary.
Company Common Stock: the Common Stock, par value
$1.00 per share, of the Company.
Company Employee: any individual who is, following
the Distribution, intended to be employed by the Company or any
Company Subsidiary on an ongoing basis.
Company Incentive Plan: the Bonus Plan, the Company
Option Plan or the LTIP.
Company Individual: any individual who (i) is a
Company Employee as of the Cut-off Date or, following the
Distribution, becomes a Company Employee pursuant to Section
2.15 hereof or (ii) is, as of the Cut-off Date, an employee of
or former employee of the Company or its predecessors whose
last employment with the Company or its predecessors was with
a Company Business or a Former Company Business other than
anyone who is to become a New Morton Employee pursuant to
Section 2.15 hereof or who was a corporate officer at the time
of retirement or (iii) is a beneficiary of any individual
specified in clause (i) or (ii).
Company Miscellaneous Plans: the Plans of the
Company and its subsidiaries, including, without limitation,
the Plans listed on Schedule D, but excluding any Qualified
Plan, Welfare Plan, any of the Company Incentive Plan, any
Plan which provides for the payment of severance, salary
continuation or similar benefits and any Plan which is
governed by a Collective Bargaining Agreement.
Company-New Morton Joint Qualified Plan: the Morton
International, Inc. Pension Plan (the "Joint Defined Benefit
Plan") or the Morton International, Inc. Employee Savings and
Investment Plan (the "Joint Savings Plan").
Company Option: an option to purchase shares of the
Company Common Stock granted pursuant to the Company Option
Plan.
Company Option Plan: the Morton International, Inc.
1989 Incentive Plan or any predecessor stock option plan of
the Company pursuant to which there are outstanding options.
Company Restricted Trust: the trust established
pursuant to a trust agreement between the Company and Bankers
Trust Company, as trustee, dated June 23, 1989.
Company Retained Foreign Plan: any Plan which is
maintained by a foreign subsidiary or foreign division of the
Company or any of its subsidiaries exclusively for the benefit
of Company Individuals.
Company Retained Qualified Plan: a Qualified Plan
sponsored or maintained by the Company or any of its
subsidiaries exclusively for the benefit of Company
Individuals.
Company Subsidiary: as of and following the
Distribution Date, any direct or indirect subsidiary of the
Company other than New Morton or any New Morton Subsidiary.
Company VEBA: the Morton International, Inc.
Employees' Insurance Trust established pursuant to a Trust
Agreement dated February 22, 1995 between the Company and Bank
of America Illinois (successor to Continental Trust Company).
Current Plan Year: the plan year or fiscal year, to
the extent applicable with respect to any Plan, during which
the Cut-off Date occurs. The plan year for the Bonus Plan,
the Company Option Plan and the LTIP shall be the year ended
June 30.
Cut-off Date: the close of business on the
Distribution Date.
Distribution: the distribution to holders of
Company Common Stock of the shares of New Morton Common Stock
and related rights owned by the Company on the Distribution
Date on the basis of one share of New Morton Common Stock for
each outstanding share of Company Common Stock.
Distribution Date: the date determined by the
Company's Board as of which the Distribution shall be
effected, which is presently contemplated to be April 30,
1997.
Enrolled Actuary: Hewitt Associates, or any other
enrolled actuary making actuarial or similar determinations
with respect to assets or liabilities relating to a particular
employee benefit plan selected by New Morton.
ERISA: the Employee Retirement Income Security Act
of 1974, as amended, or any successor legislation.
Ex-Distribution Date: the first trading day prior
to the Distribution Date on which the Company Common Stock is
traded on the New York Stock Exchange ex-dividend with respect
to the Distribution of New Morton Common Stock; provided, that
if the Company Common Stock does not trade ex-dividend prior
to the Distribution Date, the Ex-Distribution Date shall be
deemed to be the Distribution Date.
Former Company Businesses: all of the businesses
and operations heretofore but not currently conducted by the
Company or any of its current or former subsidiaries or
conducted currently or heretofore by any of the Company's
former subsidiaries all of which are listed on Schedule B and
all businesses or operations predominantly managed or operated
by, or otherwise operationally related to, the Company's
Automotive Safety Products Group which have been sold or
otherwise disposed of or discontinued prior to the
Distribution Date but shall not include any of the Former New
Morton Businesses.
Former New Morton Businesses: all of the businesses
and operations heretofore but not currently conducted by the
Company or any of its current or former subsidiaries or hereto
or currently conducted by any of its former subsidiaries or
predecessors which are listed on Schedule C and any other
business and operation not currently conducted by the Company
or any of its current subsidiaries or any predecessors of the
Company including Morton Thiokol, Inc., Thiokol Chemical
Corporation, Thiokol Corporation or Morton Norwich Products
Inc. and their respective subsidiaries and affiliates which
does not constitute a Former Company Business.
IRS: the Internal Revenue Service.
LTIP: the Morton International, Inc. Key Executive
Long Term Incentive Program.
New Morton Businesses: any business or operation of
the Company and its subsidiaries which is, pursuant to the
Distribution Agreement, to be conducted, following the
Distribution, by New Morton or any New Morton Subsidiary,
including the Corporate Operations (as defined in the
Distribution Agreement) or any business or operation which is,
following the Distribution, otherwise conducted by New Morton
or any New Morton Subsidiary.
New Morton Common Stock: the Common Stock, par
value $1.00 per share, of New Morton.
New Morton Employee: any individual who is,
following the Distribution, intended to be employed by New
Morton or a New Morton Subsidiary on an ongoing basis.
New Morton Free-Standing Foreign Plan: any Plan
which is maintained by a foreign subsidiary or foreign
division of the Company or any of its subsidiaries exclusively
for the benefit of New Morton Individuals.
New Morton Free-Standing Qualified Plan: the Morton
International, Inc. Pension Plan for Collectively Bargained
Employees, the Morton International, Inc. Retirement Income
Plan for Collectively Bargained Employees, the Morton
International, Inc. Bargaining Unit Employee Savings and
Investment Plan, and the Morton International, Inc. Retirement
Savings Plan.
New Morton Individual: any individual who (i) is a
New Morton Employee as of the Cut-off Date or, following the
Distribution, becomes a New Morton Employee pursuant to the
second sentence of Section 2.15 hereof, (ii) is, as of the
Cut-off Date, an employee of or former employee of the Company
or its predecessors whose last employment with the Company or
its predecessors was with a New Morton Business or a Former
New Morton Business (including, without limitation, retirees
from corporate headquarters' staff who retired on or prior to
the Cut-off Date or any corporate officer who retired prior to
the Cut-Off Date) other than anyone who is to become a Company
Employee, or (iii) is a beneficiary of any individual
specified in clause (i) or (ii).
New Morton Subsidiary: any direct or indirect
subsidiary of the Company that, effective as of the
Distribution Date or otherwise in connection with the
Distribution, will be, or is contemplated by the Distribution
Agreement to be, a direct or indirect subsidiary of New
Morton, and any other subsidiary of New Morton which may be
organized or acquired on or after the Distribution Date.
New Morton Option Plan: a Plan to be adopted by New
Morton pursuant to which options to purchase shares of New
Morton Common Stock may be granted to New Morton Employees.
New Morton Qualified Plan: a Qualified Plan to be
sponsored or maintained by New Morton or a New Morton
Subsidiary which will provide benefits for New Morton
Individuals who, immediately prior to the Cut-off Date, are
active or inactive participants in or otherwise entitled to
benefits under any Company-New Morton Joint Qualified Plan and
which is expected to provide substantially identical benefits
to the Company-New Morton Joint Qualified Plan in which each
such New Morton Individual currently participates.
Plan: any plan, program, policy or arrangement or
contract or agreement providing benefits for any group of
employees or former employees or individual employee or former
employee, or the beneficiary or beneficiaries of any such
employee or former employee, whether formal or informal or
written or unwritten and whether or not legally binding, and
including, without limitation, any means, whether or not
legally required, pursuant to which any benefit is provided
by an employer to any employee or former employee or the
beneficiary or beneficiaries of any such employee or former
employee.
Prior Plan Year: a plan year or fiscal year, to the
extent applicable with respect to any Plan, which ended on or
prior to the Cut-off Date.
Qualified Plan: a Plan which is an employee pension
benefit plan (within the meaning of Section 3(2) of ERISA) and
which constitutes or is intended in good faith to constitute a
qualified plan under Section 401(a) of the Code.
Welfare Plan: any Plan, including, without
limitation, the Plans listed on Schedule E, which is not a
Qualified Plan and which provides medical, health, disability,
accident, life insurance, death, dental or any other welfare
benefit, including, without limitation, any post-employment
benefit.
Section 1.2 Schedules, Etc. References to a
"Schedule" are, unless otherwise specified, to one of the
Schedules attached to this Agreement, and references to a
"Section" are, unless otherwise specified, to one of the
Sections of this Agreement.
Section 1.3 Certain Constructions. References to
the singular in this Agreement shall refer to the plural and
vice-versa and references to the disjunctive shall refer to
the conjunctive and vice-versa and references to the
masculine shall refer to the feminine and vice-versa.
ARTICLE II
EMPLOYEE BENEFITS; LABOR MATTERS
Section 2.1 New Morton Free-Standing Qualified
Plan.
(a) Effective as of the Cut-off Date, New Morton
shall or shall cause one or more New Morton Subsidiaries, as
appropriate, to assume or retain, as the case may be, and be
solely responsible for, all assets, liabilities and
obligations whatsoever of the Company and its subsidiaries
under the New Morton Free-Standing Qualified Plan; provided,
however, that the Company shall make all required
contributions, no later than the later of the Cut-off Date and
the date such contributions are legally required to be made,
to such New Morton Free-Standing Qualified Plan for all Prior
Plan Years, to the extent not previously made. The Company
and New Morton shall take such action as is necessary to
effect an adjustment to the books of the Company and New
Morton so that, as of the Cut-off Date, the prepaid expense
balances and accrued pension liabilities with respect to the
New Morton Free-Standing Qualified Plan are reflected on New
Morton's consolidated balance sheet rather than the Company's
consolidated balance sheet as of the Cut-off Date. New Morton
and the Company shall each take, or cause to be taken, all
such actions as may be necessary or appropriate in order to
establish New Morton or the New Morton Subsidiaries, as
appropriate, as successor to the Company or any of its
subsidiaries, as to all rights, assets, duties, liabilities
and obligations under, or with respect to, the New Morton
Free-Standing Qualified Plan, including, but not limited to,
the rights, assets, duties, liabilities and obligations of the
Company or any of its subsidiaries under, or with respect to,
any and all trust agreements to the extent that they relate to
such New Morton Free-Standing Qualified Plan. From and after
the Cut-off Date, the Company and the Company Subsidiaries
shall cease to have any liability or obligation whatsoever
with respect to the New Morton Free-Standing Qualified Plan,
except as otherwise specifically provided in this Section
2.01.
(b) Upon New Morton or any New Morton Subsidiary
becoming the successor employer or successor plan sponsor to
the Company or any of its subsidiaries under such New Morton
Free-Standing Qualified Plan, the Company agrees to take such
actions as may be necessary to amend each individual trust in
order for New Morton or a New Morton Subsidiary effectively to
maintain and administer such New Morton Free-Standing
Qualified Plan, including, if necessary, to direct the trustee
of each individual trust, or, to the extent applicable, each
master trust in which assets of such New Morton Free-Standing
Qualified Plan are invested, to transfer to the new trustee or
other funding agent appointed by New Morton for such plan the
amount of assets in such individual trust or master trust, as
the case may be, determined by the former trustee of such New
Morton Free-Standing Qualified Plan to be attributable to such
New Morton Free-Standing Qualified Plan. Such transfer shall
be made in cash, securities, other property or a combination
thereof, as determined by the Company and New Morton. The
Company agrees, during the period ending with the date of
complete transfer of assets to a trust or other funding
arrangement maintained by New Morton to cause distributions in
respect of retired or terminated participants who are New
Morton Individuals to be made, on behalf of New Morton, from
the New Morton Free-Standing Qualified Plan in accordance with
applicable law and pursuant to plan provisions and to cause
loans and hardship distributions to be made in accordance with
applicable law and pursuant to plan provisions. The Company
agrees that it shall, as soon as practicable after the
Distribution Date, provide New Morton such information (in the
possession of the Company or a Company Subsidiary and not
already in the possession of New Morton or a New Morton
Subsidiary) as may be reasonably requested by New Morton and
necessary in order for New Morton or any New Morton Subsidiary
effectively to maintain and administer the New Morton Free-
Standing Qualified Plan.
Section 2.2 Company Retained Qualified Plans.
Effective as of the Cut-off Date, the Company shall or shall
cause one or more Company Subsidiaries, as appropriate, to
retain and be solely responsible for, all liabilities and
obligations whatsoever of the Company and its subsidiaries
under each of the Company Retained Qualified Plans. The
Company and New Morton shall take such action as is necessary
to effect an adjustment to the books of the Company and New
Morton so that, as of the Cut-off Date, the prepaid expense
balances and accrued pension liabilities with respect to the
Company Retained Qualified Plans are reflected on the
Company's consolidated balance sheet rather than New Morton's
consolidated balance sheet as of the Cut-off Date. From and
after the Cut-off Date, New Morton and the New Morton
Subsidiaries shall cease to have any liability or obligation
whatsoever with respect to any of the Company Retained
Qualified Plans.
Section 2.3 Company-New Morton Joint Qualified
Plans.
(a) As soon as practicable after the date hereof
and effective as of the Cut-off Date, New Morton shall take,
or cause to be taken, all action necessary and appropriate to
establish and administer one or more new New Morton Qualified
Plans and to provide benefits thereunder for all New Morton
Individuals who, immediately prior to the Cut-off Date, were
participants in or otherwise entitled to benefits under any
Company-New Morton Joint Qualified Plan. New Morton agrees
that each such New Morton Individual shall be, to the extent
applicable, entitled, for all purposes under any applicable
new New Morton Qualified Plan, to be credited with the term of
service and any accrued benefit or account balance credited to
such New Morton Individual as of the Cut-off Date under the
terms of any applicable Company-New Morton Joint Qualified
Plan as if such service had been rendered to New Morton and as
if such accrued benefit or account balance had originally been
credited to such New Morton Individual under the new New
Morton Qualified Plan. The Company agrees to provide New
Morton, as soon as practicable after the Distribution Date
(with the cooperation of New Morton, to the extent that
relevant information is in the possession of New Morton or a
New Morton Subsidiary), with a list of the New Morton
Individuals who were, to the best knowledge of the Company,
participants in or otherwise entitled to benefits under each
Company-New Morton Joint Qualified Plan immediately prior to
the Cut-off Date, together with a listing, if requested by New
Morton, of each such New Morton Individual's term of service
for eligibility and vesting purposes under such Plan and a
listing of each such New Morton Individual's accrued benefit
or account balance thereunder. The Company shall, as soon as
practicable after the Distribution Date, provide New Morton
with such additional information (in the possession of the
Company or a Company Subsidiary and not already in the
possession of New Morton or a New Morton Subsidiary) as may be
reasonably requested by New Morton and necessary in order for
New Morton or the New Morton Subsidiary to establish and
administer effectively any new New Morton Qualified Plan.
(b) The Company agrees, as soon as practicable
following the Distribution Date, to direct the trustee of the
trust funding the Company-New Morton Joint Qualified Plan
which is a Joint Defined Benefit Plan to transfer to the
trustee or other funding agent of any applicable new New
Morton Qualified Plan, in cash, securities, other property or
a combination thereof, as determined by the Company and New
Morton, an amount equal to (W) plus (X) less (Y), as adjusted
by (Z) and as further reduced to reflect contributions due but
not paid in respect of New Morton Individuals with respect to
the portion of the Current Plan Year which ends on the Cut-off
Date (as set forth on Annex I); where (W) equals that amount
of the assets of the Joint Defined Benefit Plan which would be
allocated to the plan participants and beneficiaries who are
New Morton Individuals if the Company-New Morton Joint Defined
Benefit Plan had been terminated as of the Distribution Date
(the "Valuation Date"), using the actuarial assumptions and
methods set forth in Annex I, including the procedures
outlined in ERISA Section 4044 for allocating assets among
priority categories (with all of the foregoing calculations
being determined as of the Valuation Date by the Enrolled
Actuary, which determination shall be based upon the actuarial
assumptions set forth on Annex I hereto); where (X) equals the
amount of all contributions, if any, attributable to New
Morton Individuals made subsequent to the Valuation Date to
the Joint Defined Benefit Plan through the date of complete
transfer; where (Y) equals aggregate payments made from the
trust relating to the Joint Defined Benefit Plan in respect of
New Morton Individuals from the Valuation Date through the
date of complete transfer; and where (Z) equals the amount of
the net earnings or losses, as the case may be, from the
Valuation Date through the date of transfer, on the average of
the daily balances of W, X and Y and based upon the actual
rate of return earned by the applicable Joint Defined Benefit
Plan during such period. To the extent that total assets of
the Joint Defined Benefit Plan exceeds the total liabilities
of the Joint Defined Benefit Plan as of the Valuation Date
calculated using the actuarial assumptions on Annex I (the
"Excess"), then in addition to the transfer described in the
preceding sentence an additional amount of assets shall be
transferred equal to the percentage of such Excess that the
liabilities of such plan (determined using the same actuarial
assumptions) attributable to New Morton Individuals bears to
the total plan liabilities. Notwithstanding the foregoing
provisions of Section 2.03(b), each such transfer shall be
adjusted, if and to the extent necessary, to comply with
Section 414(l) of the Code and the regulations promulgated
thereunder. The Company further agrees that, as soon as
practicable following the later of the Distribution Date and
the establishment of the qualified trust for the New Morton
Qualified Plan which is a Joint Defined Benefit Plan, an
initial transfer of assets will be made based on an estimate
prepared by the Enrolled Actuary of the amount described in
clause (W) as of the Valuation Date (using January 1, 1996
participant data for such estimate). Once the final transfer
amount is determined, a transfer of assets will be made from
the Company-New Morton Joint Qualified Plan to the New Morton
Qualified Plan (or vice versa) as necessary to result in a
split of assets which is consistent with this section.
(c) The Company agrees, as soon as practicable
following the Distribution Date, to direct the trustee of the
trust funding the Company-New Morton Joint Qualified Plan
which is a Joint Savings Plan to transfer to the trustee or
other funding agent of any applicable new New Morton Qualified
Plan in cash, securities or other property or a combination
thereof, as determined by the Company and New Morton, an
amount equal to the account balances as of the date of
transfer attributable to the participants and beneficiaries in
the Joint Savings Plan who are New Morton Individuals plus the
portion of any unallocated contributions and trust earnings
attributable to such participants and beneficiaries who are
New Morton Individuals. To the extent practicable such
transfers shall be effected so as to preserve investment
elections of the participants and beneficiaries in the Joint
Savings Plan.
(d) New Morton and the Company shall, in connection
with the transfers described in this Section 2.03, cooperate
in making any and all appropriate filings required under the
Code or ERISA, and the regulations thereunder, and any
applicable securities laws and take all such action as may be
necessary and appropriate to cause such transfers to take
place as soon as practicable after the Distribution Date;
provided, however, that each such transfer shall not take
place until as soon as practicable after the later of (i) the
expiration of a 30-day period following the date of filing the
required Forms 5310 (or any successor form thereto) with the
IRS and (ii) the earlier of (A) the receipt of a favorable IRS
determination letter with respect to the qualification of each
applicable new New Morton Qualified Plan under Section 401(a)
of the Code or (B) the receipt by the Company of an opinion of
New Morton's counsel in the form set forth in Annex III hereto
to the effect that each applicable new New Morton Qualified
Plan is intended in good faith to be qualified under Section
401(a) of the Code. The Company agrees to provide to New
Morton's counsel such information in the possession of the
Company or any Company Subsidiary as may be reasonably
requested by New Morton's counsel in connection with the
issuance of such opinion. The Company agrees, during the
period ending with the date of complete transfer of assets and
liabilities to each such new New Morton Qualified Plan, to
cause distributions in respect of terminated or retired
participants who are New Morton Individuals to be made, on
behalf of New Morton, from the relevant Company-New Morton
Joint Qualified Plan in accordance with applicable law and
pursuant to plan provisions.
(e) Except as specifically set forth in this
Section 2.03, from and after the Cut-off Date, the Company and
the Company Subsidiaries shall cease to have any liability or
obligation whatsoever with respect to New Morton Individuals
under the Company-New Morton Joint Qualified Plans, and New
Morton shall assume or retain, as the case may be, and shall
be solely responsible for, all liabilities and obligations
whatsoever of the Company and its subsidiaries with respect to
New Morton Individuals under the Company-New Morton Joint
Qualified Plans; provided, however, that the Company shall
either be responsible for or make all required contributions,
no later than the later of the Cut-off Date and the date such
contributions are legally required to be made, in respect of
New Morton Individuals with respect to each Company-New Morton
Joint Qualified Plan for all Prior Plan Years and for the
portion of the Current Plan Year ending on the Cut-off Date
(determined as set forth in Section 2.03(b)), to the extent
not previously made. The Company and New Morton shall take
such action as is necessary to effect an adjustment to the
books of the Company and New Morton so that, as of the Cut-off
Date, the prepaid expense balances and accrued pension
liabilities with respect to the Company-New Morton Joint
Qualified Plans to the extent attributable to the New Morton
Individuals are reflected on New Morton's consolidated
balance sheet rather than the Company's consolidated balance
sheet as of the Cut-off Date.
Section 2.4 Foreign Plans. (a) With respect to
each New Morton Free-Standing Foreign Plan:
(i) New Morton and the Company shall take, or cause
to be taken, all such action as may be necessary or
appropriate in order to establish New Morton or one or
more New Morton Subsidiaries, as appropriate, as
successor to the Company or any of its subsidiaries as to
all rights, assets, duties, liabilities and obligations
as of the Cut-off Date under, or with respect to, such
New Morton Free-Standing Foreign Plan. The Company
agrees that it shall, as soon as practicable, provide New
Morton with all information (in the possession of the
Company or a Company Subsidiary and not already in the
possession of New Morton or a New Morton Subsidiary) as
may be reasonably requested by New Morton and necessary
for the New Morton or New Morton Subsidiaries to
administer effectively such New Morton Free-Standing
Foreign Plan.
(ii) From and after the Cut-off Date, the Company
and the Company Subsidiaries shall cease to have any
liability or obligation whatsoever under such New Morton
Free-Standing Foreign Plan; provided, however, that the
Company shall make all required contributions to such New
Morton Free-Standing Foreign Plan for all Prior Plan
Years, to the extent not previously made. The Company
and New Morton shall take such action as is necessary to
effect an adjustment to the books of the Company and New
Morton so that, as of the Cut-off Date, the prepaid
expense balances and accrued pension liabilities with
respect to such New Morton Free-Standing Foreign Plan are
reflected on New Morton's consolidated balance sheet,
rather than the Company's consolidated balance sheet as
of the Cut-off Date. As of the Cut-off Date, New Morton
and the New Morton Subsidiaries shall assume or retain,
as the case may be, and shall be solely responsible for,
all liabilities and obligations whatsoever under such New
Morton Free-Standing Foreign Plan, except as otherwise
specifically provided in this Section 2.04(a)(ii).
(b) Effective as of the Cut-off Date, Company and
the Company Subsidiaries shall take, or cause to be taken, all
such action as may be necessary or appropriate in order to
establish Company or one or more Company Subsidiaries, as
appropriate, to retain and be solely responsible for all
assets, liabilities and obligations whatsoever of the Company
and its subsidiaries under each Company Retained Foreign Plan.
The Company and New Morton shall take such action as is
necessary to effect an adjustment to the books of the Company
and New Morton so that, as of the Cut-off Date, the prepaid
expense balances and accrued pension liabilities with respect
to the Company Retained Foreign Plans are reflected on the
Company's consolidated balance sheet rather than New Morton's
consolidated balance sheet as of the Cut-off Date. From and
after the Cut-off Date, New Morton and the New Morton
Subsidiaries shall cease to have any liability or obligation
whatsoever with respect to any of the Company Retained Foreign
Plans.
Section 2.5 Welfare Plans.
(a) As of the Cut-off Date, New Morton shall assume
or retain, or cause a New Morton Subsidiary to assume or
retain, as the case may be, and shall be solely responsible
for, or cause its insurance carriers to be responsible for,
all liabilities and obligations whatsoever of the Company and
its subsidiaries whether or not incurred prior to the Cut-off
Date in connection with claims under any Welfare Plan
(including any Welfare Plan providing for post-retirement
benefits) brought by or in respect of any New Morton
Individual and the Company and the Company Subsidiaries shall
cease to have any such liability or obligation.
(b) New Morton shall take, or cause to be taken,
all actions necessary and appropriate on behalf of itself and
the New Morton Subsidiaries (i) to assume any existing Welfare
Plan of the Company or any of its subsidiaries, which Welfare
Plan, as of the Cut-off Date, provides benefits solely for New
Morton Individuals or (ii) otherwise to adopt such Welfare
Plans as necessary to provide welfare benefits, effective as
of the Cut-off Date, and in either case shall assume the
liabilities and obligations to New Morton Individuals which
are or shall become the responsibility of New Morton under
Section 2.05(a). For this purpose with respect to any New
Morton individual, New Morton or a New Morton Subsidiary
shall, to the extent applicable, credit such New Morton
Individual with term of service and consider such New Morton
Individual to have satisfied any other eligibility criteria
(including satisfaction of applicable deductibles or
coinsurance amounts) as of the Cut-off Date as if such service
had been rendered to New Morton or the New Morton Subsidiary
and as if such eligibility criteria had been satisfied while
employed by New Morton or the New Morton Subsidiary. In
connection with the foregoing, the Company agrees to provide
New Morton or its designated insurance representative with
such information (in the possession of the Company or any
Company Subsidiary and not already in the possession of New
Morton or a New Morton Subsidiary) as may be reasonably
requested by New Morton and necessary for New Morton and the
New Morton Subsidiaries to assume or establish any such
Welfare Plan.
(c) The Company shall take, or cause to be taken,
all actions necessary and appropriate to direct the trustee of
the Company VEBA to transfer in cash to the new trustee or
other funding agent appointed by New Morton for a trust
arrangement similar to the Company VEBA the amount of assets
in such trust determined by the Accountants to be attributable
as of the last day of the month in which the Cut-off Date
occurs to contributions (and earnings thereon) made by the
employees who are New Morton Employees. The Company shall, as
soon as practicable after the Distribution Date, provide New
Morton with such additional information (not already in the
possession of New Morton or the New Morton Subsidiaries) as
may be reasonably requested by New Morton and necessary in
order for the New Morton Subsidiaries to manage effectively
the trust assets transferred in accordance with this Section
2.05(c).
(d) The Company and the Company Subsidiaries shall
assume, or retain, all liabilities and obligations whatsoever
of the Company and its subsidiaries for benefits under any
Welfare Plan other than as set forth in Section 2.05(a).
Section 2.6 Stock Option Plans. The Company and
New Morton shall cooperate and take all action necessary
(including obtaining the consent of the holders of the Company
Options, if required, and, if deemed necessary or appropriate,
seeking a "no-action" letter or interpretive advice from the
Commission) to amend (if necessary) the Company Option Plan
and to adopt the New Morton Option Plan so that as of the
Distribution Date, each Company Option which is outstanding
and not exercised immediately prior to the Distribution Date
and which is held by a New Morton Individual shall, without
any action on the part of the holder thereof, be converted
into an option to purchase shares of New Morton Common Stock,
the number of shares of New Morton Common Stock subject to,
and the exercise price of such option to be determined in
accordance with, the requirements of Section 424 of the Code
and the regulations promulgated thereunder, based upon (A) the
average of the high and low trading prices on the New York
Stock Exchange for the Company Common Stock for each of the
last five trading days prior to the Ex-Distribution Date and
(B) the average of the high and low trading prices on the New
York Stock Exchange for the New Morton Common Stock for each
of the first five trading days following the Distribution Date
on which the New Morton Common Stock is traded regular way on
the New York Stock Exchange; such option to be subject to
substantially similar terms and conditions as in effect prior
to the conversion. The exercise price of any such option
shall be rounded to the nearest $.01; the number of shares
subject to any such option shall be rounded to the nearest
share. Any related limited stock appreciation rights or
supplemental cash payment rights held by New Morton
Individuals shall be adjusted in a consistent manner and shall
be assumed by, and become the responsibility of, New Morton.
Section 2.7 Company Incentive Plans.
(a) The Company shall be responsible for the
payment of all liabilities and obligations for benefits due
and payable or unpaid as of and through the Cut-off Date under
each Company Incentive Plan with respect to any Prior Plan
Year (other than the Current Plan Year). Any deferred bonuses
that were earned with respect to any Prior Plan Year that are
not paid as of the Cut-off Date shall be treated as benefits
for the Current Plan Year in accordance with Section 2.07(b).
(b) Except as specifically provided in Section
2.06, for any Current Plan Year under each Company Incentive
Plan, the Company and the Company Subsidiaries shall be
responsible for the payment of all liabilities and obligations
for benefits unpaid as of and through the Cut-off Date
(including for deferred compensation) with respect to Company
Individuals and New Morton and the New Morton Subsidiaries
shall assume and be responsible for the payment of all
liabilities and obligations for benefits unpaid as of and
through the Cut-off Date (including for deferred compensation)
with respect to New Morton Individuals. Except as
specifically provided in Section 2.06, each of the Company and
New Morton will, to the extent practicable, either continue
each such Company Incentive Plan or adopt a new Plan in
substitution therefor and, in this connection, adjust, in a
manner equitable to participants, any incentive goals
contained in each Company Incentive Plan to reflect the
Distribution.
(c) For purposes of the Company Incentive Plans,
individuals who, in connection with the Distribution, cease to
be employees of the Company and become New Morton Employees
shall not be deemed to have terminated employment for purposes
of any deferral elections made by such individuals and service
with New Morton shall be deemed continuous service with the
Company.
Section 2.8 Severance Pay.
(a) New Morton and the Company agree that, with
respect to individuals who, in connection with the
Distribution, cease to be employees of the Company and become
New Morton Employees, such cessation shall not be deemed a
severance of employment from the Company and its subsidiaries
for purposes of any Plan of the Company or any of its
subsidiaries that provides for the payment of severance,
salary continuation or similar benefits and shall, in
connection with the Distribution, if and to the extent
appropriate obtain waivers from individuals against any such
assertion.
(b) Notwithstanding anything in the Agreement to
the contrary, the Company and the Company Subsidiaries shall
assume and be solely responsible for all liabilities and
obligations whatsoever in connection with claims made by or on
behalf of the Company Individuals and New Morton and the New
Morton Subsidiaries shall assume and be solely responsible for
all liabilities and obligations whatsoever in connection with
claims made by or on behalf of New Morton Individuals in
respect of severance pay, salary continuation and similar
obligations relating to the termination or alleged termination
of any such person's employment either before, to the extent
unpaid on the Cut-off Date, or on or after the Cut-off Date.
Section 2.9 Company Restricted Trust.
(a) Effective as of the Distribution Date, New
Morton shall or shall cause one or more New Morton
Subsidiaries, as appropriate, to assume or retain, as the case
may be, and be solely responsible for, all assets, liabilities
and obligations whatsoever of the Company and its subsidiaries
with respect to New Morton Individuals to the extent such
liabilities are funded as of the Cut-off Date under the
Company Restricted Trust. In this connection, New Morton
agrees to establish one or more trusts substantially similar
to the Company Restricted Trust to hold the assets
attributable to such liabilities and the Company agrees to
take such action as may be necessary to amend the Company
Restricted Trust to effectuate the purposes of this Section
2.09 and to direct the trustee of the Company Restricted Trust
to transfer to the new trustee or other funding agent
appointed by New Morton the amount of assets, plus the portion
of any unallocated contributions and trust earnings,
determined by the Enrolled Actuary in accordance with the
procedures set forth on Annex II hereto to be attributable to
New Morton Individuals. Such transfer shall be made in cash,
securities, other property or a combination thereof, as
determined by the Company and New Morton.
Section 2.10 Company Miscellaneous Plans; Post-
Distribution Liabilities.
(a) The Company and the Company Subsidiaries shall
be solely responsible for the payment of all liabilities and
obligations whatsoever with respect to any Company Individual
unpaid as of and through the Cut-off Date under any Company
Miscellaneous Plan and New Morton and the New Morton
Subsidiaries shall assume and be solely responsible for the
payment of all liabilities and obligations whatsoever with
respect to any New Morton Individual unpaid as of and through
the Cut-off Date under any Company Miscellaneous Plan.
(b) The Company and the Company Subsidiaries shall
be solely responsible for the payment of all liabilities and
obligations whatsoever arising with respect to any Company
Individual and attributable to any period subsequent to the
Cut-off Date and New Morton and the New Morton Subsidiaries
shall be solely responsible for the payment of all liabilities
and obligations whatsoever arising with respect to any New
Morton Individual and attributable to any period subsequent to
the Cut-off Date.
Section 2.11 Collective Bargaining Agreements;
Labor Management Relations Act. New Morton agrees that it
shall assume and discharge all of the liabilities and
obligations of the Company and its subsidiaries relating to
New Morton Individuals which have not been satisfied as of and
through the Cut-off Date with respect to any Collective
Bargaining Agreement, and to be bound by any and all
provisions of such Collective Bargaining Agreements with
respect to such New Morton Individuals as if New Morton or a
New Morton Subsidiary were the signatory employer. The
provisions of this Section 2.11 are, to the extent applicable,
governed by and subject to the Labor Management Relations Act,
as amended.
Section 2.12 Other Balance Sheet Adjustments. To
the extent not otherwise provided in this Agreement, the
Company and New Morton shall take such action as is necessary
to effect an adjustment to the books of the Company and New
Morton so that, as of the Cut-off Date, the prepaid expense
balances and accrued liabilities with respect to any employee
liability or obligation assumed or retained as of the Cut-off
Date by the Company and the Company Subsidiaries, on the one
hand, and New Morton and the New Morton Subsidiaries, on the
other hand, are appropriately reflected on the respective
consolidated balance sheets as of the Cut-off Date,
respectively, of the Company and New Morton.
Section 2.13 Preservation of Rights To Amend or
Terminate Plans. No provisions of this Agreement, including,
without limitation, the agreement of the Company or New Morton
that it, or any Company Subsidiary or New Morton Subsidiary,
will make a contribution or payment to or under any Plan
herein referred to for any period, shall be construed as a
limitation on the right of the Company or New Morton or any
Company Subsidiary or New Morton Subsidiary to amend such Plan
or terminate its participation therein which the Company or
New Morton or any Company Subsidiary or New Morton Subsidiary
would otherwise have under the terms of such Plan or
otherwise, and no provision of this Agreement shall be
construed to create a right in any employee or former employer
or beneficiary of such employee or former employee under a
Plan which such employee or former employer or beneficiary
would not otherwise have under the terms of the Plan itself.
Section 2.14 Reimbursement; Indemnification. The
Company and New Morton acknowledge that the Company and the
Company Subsidiaries, on the one hand, and New Morton and the
New Morton Subsidiaries, on the other hand, may incur costs
and expenses (including, but not limited to, contributions to
Plans and the payment of insurance premiums) arising from or
related to any of the Plans which are, as set forth in this
Agreement, the responsibility of the other party hereto.
Accordingly, the Company (and any Company Subsidiary
responsible therefor) and New Morton (and any New Morton
Subsidiary responsible therefor) agree to reimburse each
other, as soon as practicable but in any event within 30 days
of receipt from the other party of appropriate verification,
for all such costs and expenses reduced by the amount of any
tax reduction or recovery of tax benefit realized by the
Company or New Morton, as the case may be, in respect of the
corresponding payment made by it; provided, however, that
notwithstanding anything in this Section 2.14 to the contrary,
costs and expenses or other recovery arising from any
challenge by the U.S. Government to the allocation of assets
set forth in Section 2.03 shall not be subject to
reimbursement and indemnification under this Agreement or the
Distribution Agreement. All liabilities and obligations
retained, assumed or indemnified by New Morton or any New
Morton Subsidiary pursuant to this Agreement, in each case,
shall be deemed to be New Morton Liabilities, as defined in
the Distribution Agreement, and all liabilities retained,
assumed or indemnified by the Company or any Company
Subsidiary pursuant to this Agreement, shall be deemed to be
Safety Liabilities, as defined in the Distribution Agreement,
and, in each case, shall be subject to the indemnification
provisions set forth in Article V thereof.
Section 2.15 Further Transfers. The Company and
New Morton recognize that there may be New Morton Individuals
who will, after the Distribution Date, become employed by the
Company and there may be Company Individuals who become
employed, after the Distribution Date, by New Morton. Any
such transfers or assumptions will be considered to be
governed by the terms of this Agreement and shall not require
the agreement of the Company and New Morton if they occur
within 12 months of the Distribution Date. After such date,
if the Company and New Morton so agree with respect to any
such individuals, the assets and liabilities with respect to
such employees which are associated with the plans and
programs described in this Agreement may be transferred and
assumed in a manner consistent with this Agreement. Any costs
associated with or arising out of such transfers and
assumptions shall be borne by the party that becomes the new
employer of the transferred individual.
ARTICLE III
MISCELLANEOUS
Section 3.1 Complete Agreement; Construction. This
Agreement, including the Schedules and Annexes hereto and the
agreements and documents referred to herein, shall constitute
the entire agreement between the parties with respect to the
subject matter hereof and shall supersede all previous
negotiations, commitments and writings with respect to such
subject matter. Notwithstanding any other provisions in this
Agreement or the Distribution Agreement to the contrary, in
the event and to the extent that there shall be a conflict
between the provisions of the Distribution Agreement and this
Agreement, the provisions of this Agreement shall control,
except with respect to Section 9.03 of the Distribution
Agreement, which shall control over any contrary provision
hereof.
Section 3.2 Guarantee of Subsidiaries' Obligations.
The Company shall cause to be performed, and hereby guarantees
the performance and payment of, all actions, agreements,
obligations and liabilities set forth herein to be performed
or paid by the Company Subsidiaries and New Morton shall cause
to be performed, and hereby guarantees the performance and
payment of, all actions, obligations and liabilities set forth
herein to be performed or paid by the New Morton Subsidiaries.
Section 3.3 Failure of the Company and New Morton
To Agree on Certain Determinations. In any case in which the
Company shall disagree with the determination of an amount
which this Agreement requires to be made by the Enrolled
Actuary or the Accountants (as the case may be), the Company
shall have the right within 30 days after receipt of notice of
such determination and back-up workpapers to engage at the
expense of the Company, an enrolled actuary (or "Big Six"
accounting firm) to make the determination of such amount. If
the amount determined by such actuaries (or "Big Six"
accounting firm) should differ, such amount shall be finally
determined by another enrolled actuary (or "Big Six"
accounting firm) selected by agreement between or among the
Enrolled Actuary (or the Accountants) and the enrolled actuary
or enrolled actuaries (or Big Six accounting firm or firms)
for the Company, whose fees and expenses shall be borne solely
by the Company.
Section 3.4 Governing Law. Subject to applicable
federal law, this Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without
regard to the principles of conflicts of laws thereof.
Section 3.5 Notices. All notices and other
communications hereunder shall be in writing and shall be
delivered by hand or mailed by registered or certified mail
(return receipt requested) to the parties at the following
addresses (or at such other addresses for a party as shall be
specified by like notice) and shall be deemed given on the
date on which such notice is received:
To the Company:
Autoliv ASP, Inc.
3350 Airport Road
Ogden, Utah 84409
Attention: Corporate Secretary
with a copy to:
Autoliv, Inc.
c/o Autoliv AB
Box 70381
S10724 Stockholm
Sweden
Attention: Corporate Secretary
and
Skadden, Arps, Slate, Meagher & Flom
25 Bucklersbury
London EC4N 8DA, England
Attention: Scott V. Simpson, Sr., Esq.
To New Morton:
New Morton International, Inc.
100 North Riverside Drive
Chicago, Illinois 60606-1560
Attention: Corporate Secretary
with a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Jodi J. Schwartz
Section 3.6 Amendments. This Agreement may not be
modified or amended except by an agreement in writing signed
by the parties.
Section 3.7 Successors and Assigns. This Agreement
and all of the provisions hereof shall be binding upon and
inure to the benefit of the parties and their respective
successors and permitted assigns.
Section 3.8 Termination. This Agreement may be
terminated in the event that the Distribution Agreement is
terminated and the Distribution abandoned prior to the
Distribution Date. In the event of such termination, neither
party shall have any liability of any kind to the other party.
Section 3.9 No Third Party Beneficiaries. This
Agreement is solely for the benefit of the parties hereto and
their respective subsidiaries and should not be deemed to
confer upon third parties any remedy, claim, liability,
reimbursement, claim of action or other right in excess of
those existing without reference to this Agreement.
Section 3.10 Titles and Headings. Titles and
headings to sections herein are inserted for the convenience
of reference only and are not intended to be a part of or to
affect the meaning of or interpretation of this Agreement.
Section 3.11 Schedules. The Schedules shall be
construed with and as an integral part of this Agreement to
the same extent as if the same had been set forth verbatim
herein.
Section 3.12 Legal Enforceability. Any provision
of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed as of the day and year first
above written.
MORTON INTERNATIONAL, INC.
By /s/ P. Michael Phelps
-------------------------------
P. Michael Phelps
Vice President and Secretary
NEW MORTON INTERNATIONAL, INC.
By /s/ Christopher K. Julsrud
-------------------------------
Christopher K. Julsrud
Vice President, Human Resources