Exhibit 10.5
FORM I
FMC Technologies, Inc.
Executive Severance Agreement
-----------------------------
THIS AGREEMENT is made and entered into as of the _____ day of
_____________________, 2001, by and between FMC Technologies, Inc. (hereinafter
referred to as the "Company") and _____________________ (hereinafter referred to
as the "Executive").
WHEREAS, the Board has approved the Company's 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 the Executive's 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 the Executive's 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;
WHEREAS, the Executive has an existing executive severance agreement
with FMC, the terms of which are substantially similar to the terms of this
Agreement;
WHEREAS, the Executive acknowledges that neither the IPO nor the
Distribution will result in a change in control of FMC under the Executive's
existing executive severance agreement with FMC;
WHEREAS, the Executive agrees that the terms of this Agreement
completely replace and supersede the provisions of the prior executive severance
agreement with FMC;
WHEREAS, the Executive acknowledges that neither the IPO nor the
Distribution will result in a Change in Control; and
WHEREAS, the Executive and the Company desire that the terms of this
Agreement will completely replace and supersede the provisions set forth in the
Plan,
setting forth the terms and provisions with respect to the Executive's
entitlement to payments and benefits following a Change in Control.
NOW THEREFORE, to assure the Company that it will have the continued
dedication of the Executive and the availability of the Executive's 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:
Article 1. Establishment, Term, and Purpose
This Agreement completely replaces and supersedes the provisions of the prior
executive agreement the Executive had with FMC. The Executive agrees that no
benefits will be paid to the Executive by FMC or the Company under the terms of
such prior executive severance agreement.
This Agreement will commence on the Effective Date and will continue in effect
for a three (3) year term, until the third anniversary of the Effective Date.
Upon each anniversary of the Effective Date, the term of this Agreement will be
extended automatically for one (1) additional year, unless the Committee
delivers written notice six (6) months prior to such anniversary to the
Executive that this Agreement will not be extended. In such case, this 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; and (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 will 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. Beneficiary means the persons or entities designated or deemed
-----------
designated by the Executive pursuant to Section 11.2 herein.
2.3. Board means the Board of Directors of the Company.
-----
2.4. Cause means:
-----
Page 2
(a) the Executive's Willful and continued failure to
substantially perform the Executive's employment duties in any material
respect (other than any such failure resulting from physical or mental
incapacity 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 the Executive has failed to
perform the Executive's duties, and after the Executive has failed to
resume substantial performance of the Executive's 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 or an Affiliate; or
(c) the Executive's having been convicted of, or pleading
guilty or nolo contendere to, a felony under federal or state law on or
prior to a Change in Control.
2.5. Change in Control means the happening of any of the following events:
-----------------
(a) An acquisition by any Person of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of twenty percent (20%) or more of either (i) the then outstanding
shares of common stock of the Company (the "Outstanding Company Common
Stock") or (ii) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities");
excluding, however, the following: (A) any acquisition directly from
the Company, other than an acquisition by virtue of the exercise of a
conversion privilege unless the security being so converted was itself
acquired directly from the Company, (B) any acquisition by the Company,
(C) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any entity controlled by the
Company, or (D) any acquisition pursuant to a transaction which
complies with Subsections (i), (ii) and (iii) of Subsection (C) of this
Section 2.5;
(b) A change in the composition of the Board such that the
individuals who, as of the Effective Date, constitute the Board (such
Board will be hereinafter referred to as the "Incumbent Board") cease
for any reason to constitute at least a majority of the Board;
provided, however, for purposes of this Section 2.5, that any
individual who becomes a member of the Board subsequent to the
Effective Date, whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least a majority
of those individuals who are members of the Board and who were also
members of the Incumbent Board (or deemed to be such pursuant to this
proviso) will be considered as though such individual were a member of
the Incumbent Board; but, provided further, that any such individual
whose initial assumption of office occurs as a result of either an
actual or threatened election contest (as such terms are used in Rule
14a-11 of Regulation 14A
Page 3
promulgated under the Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other
than the Board will not be so considered as a member of the Incumbent
Board;
(c) Consummation of a reorganization, merger or
consolidation, sale or other disposition of all or substantially all of
the assets of the Company, or acquisition by the Company of the assets
or stock of another entity ("Corporate Transaction"); excluding,
however, such a Corporate Transaction pursuant to which (i) all or
substantially all of the individuals and entities who are the
beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to
such Corporate Transaction will beneficially own, directly or
indirectly, more than sixty percent (60%) of, respectively, the
outstanding shares of common stock, and the combined voting power of
the then outstanding voting securities entitled to vote generally in
the election of directors, as the case may be, of the corporation
resulting from such Corporate Transaction (including, without
limitation, a corporation which as a result of such transaction owns
the Company or all or substantially all of the Company's assets either
directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Corporate
Transaction, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be, (ii) no Person (other
than the Company, any employee benefit plan (or related trust) of the
Company or such corporation resulting from such Corporate Transaction)
will beneficially own, directly or indirectly, twenty percent (20%) or
more of, respectively, the outstanding shares of common stock of the
corporation resulting from such Corporate Transaction or the combined
voting power of the outstanding voting securities of such corporation
entitled to vote generally in the election of directors except to the
extent that such ownership existed prior to the Corporate Transaction,
and (iii) individuals who were members of the Incumbent Board will
constitute at least a majority of the members of the board of directors
of the corporation resulting from such Corporate Transaction; or
(d) The approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
In addition, a Change in Control will be deemed to occur upon a
change in control of FMC, as determined under the change in control provisions
of FMC's executive severance plan, if at the time of its change in control, FMC
owns more than fifty percent (50%) of the Outstanding Company Common Stock.
Notwithstanding the foregoing, neither the IPO, nor the Distribution will be
treated as a Change in Control of the Company.
2.6. Code means the Internal Revenue Code of 1986, as amended from time to
----
time, and any successor thereto.
2.7. Committee means the Compensation and Organization Committee of the
---------
Board or any other committee of the Board appointed to perform the functions of
the Compensation and Organization Committee.
Page 4
2.8. Company means FMC Technologies, Inc., a Delaware corporation, or any
-------
successor thereto as provided in Article 10 herein.
2.9. 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.
2.10. Distribution means FMC's distribution of its interest in the Company.
------------
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 Securities Exchange Act of 1934, as amended
------------
from time to time, and any successor thereto.
2.14. FMC means FMC Corporation, a Delaware corporation.
---
2.15. Good Reason means, 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, without limitation, offices,
titles and reporting requirements) as an employee of the Company
(including, without limitation, any material change in duties or
status as a result of the stock of the Company ceasing to be publicly
traded or of the Company becoming a subsidiary of another entity), or
a reduction or alteration in the nature or status of the Executive's
authorities, duties, or responsibilities from the greatest of (i)
those in effect on the Effective Date; (ii) those in effect during the
fiscal year immediately preceding the year of the Change in Control
(whether with the Company or with FMC); and (iii) those in effect
immediately preceding the Change in Control;
(b) The Company's requiring the Executive to be based at a
location which is at least fifty (50) miles further from the
Executive's then current primary residence than is such residence from
the office where the Executive is located at the time of the Change in
Control, except for required travel on the Company's business to an
extent substantially consistent with the Executive's business
obligations as of the Effective Date or as the same may be changed
from time to time prior to a Change in Control;
(c) A reduction by the Company in the Executive's Base
Salary as in effect on the Effective Date or as the same may be
increased from time to time;
Page 5
(d) A material reduction in the Executive's level of
participation in any of the Company's short- and/or long-term incentive
compensation plans, or employee benefit or retirement plans, policies,
practices, or arrangements in which the Executive participates from the
greatest of the levels in place: (i) on the Effective Date; (ii) during
the fiscal year immediately preceding the fiscal year of the Change in
Control (whether with the Company or with FMC); and (iii) on the date
immediately preceding the date of 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 will not be affected by the Executive's temporary
incapacity due to physical or mental illness not constituting a Disability. The
Executive's continued employment will not constitute a waiver of the Executive's
rights with respect to any circumstance constituting Good Reason.
2.16. IPO means the initial registered public offering by the Company of
---
shares of common stock of the Company.
2.17. Notice of Termination means a written notice which indicates the
---------------------
specific termination provision in this Agreement relied upon, and sets 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.
2.18. Person has 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).
2.19. Qualifying Termination means any of the events described in Section 3.2
----------------------
herein, the occurrence of which triggers the payment of Severance Benefits
hereunder.
2.20. Retirement means the Executive's voluntary termination of employment in
----------
a manner that qualifies the Executive to receive immediately payable retirement
benefits from the FMC Technologies, Inc. Salaried Employees' Retirement Program.
2.21. Severance Benefits means the payment of severance compensation as
------------------
provided in Section 3.3 herein.
2.22. Trust means the Company grantor trust to be created pursuant to Article
-----
6 of this Agreement.
Page 6
2.23. Willful means any act or omission by the Executive that was in good
-------
faith and without a reasonable belief that the action or omission was in the
best interests of the Company or its affiliates. Any act or omission based upon
authority given pursuant to a duly adopted Board resolution, or, upon the
instructions of any senior officer of the Company, or based upon the advice of
counsel for the Company will be conclusively presumed to be taken or omitted by
the Executive in good faith and in the best interests of the Company and/or its
affiliates.
Article 3. Severance Benefits
3.1. Right to Severance Benefits. The Executive will 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 will not be entitled to receive Severance Benefits if the
Executive's employment is terminated (i) for Cause, (ii) due to a voluntary
termination without Good Reason, or (iii) due to death or Disability.
3.2. Qualifying Termination. The occurrence of any one or more of the
----------------------
following events will 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, Disability or death 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.
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 will pay to the Executive (or in the event of the
Executive's death, the Executive's Beneficiary) 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 up to and
including the Effective Date of Termination (whether with the Company
or FMC).
Page 7
(b) An amount equal to three (3) times the greater of (i)
the Executive's highest annualized target total Management Incentive
Award granted under the Company's or FMC's Incentive Compensation and
Stock Plan for any plan year up to and including the plan year in which
the Executive's Effective Date of Termination occurs (whether with the
Company or FMC), and (ii) the average of the actual total Management
Incentive Awards paid (or payable) to the Executive for the two plan
years immediately preceding the Effective Date of Termination (whether
with the Company or FMC), or for such lesser number of such plan years
for which the Executive was eligible to earn a Management Incentive
Award (from the Company or FMC), annualized for any year that the
Executive was not employed by the Company or FMC, as applicable, for
the entire plan year. For purposes of determining actual total
Management Incentive Awards under the preceding sentence, any amounts
the Executive deferred will be treated as if they had been paid to the
Executive, rather than deferred.
(c) An amount equal to the Executive's unpaid Base Salary,
and unused and accrued vacation pay, earned or accrued through the
Effective Date of Termination.
(d) An amount equal to the target total Management Incentive
Award established for the plan year in which the Executive's Effective
Date of Termination occurred, prorated through the Effective Date of
Termination.
(e) A continuation of the Company's 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 will 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 date of the Change in Control. The continuation of these welfare
benefits will be discontinued prior to the end of the three (3) year
period if the Executive has available substantially similar benefits at
a comparable cost from a subsequent employer, as determined by the
Committee. The date that welfare benefits cease to be provided under
this paragraph will be the date of the Executive's qualifying event for
continuation coverage purposes under Code Section 4980B(f)(3)(B).
Awards granted under the FMC Technologies, Inc. Incentive Compensation and Stock
Plan, and other incentive arrangements adopted by the Company will 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 Technologies, Inc. Salaried Employees' Retirement
Program, the FMC Technologies, Inc. Savings and Investment Plan, the FMC
Technologies, Inc. Salaried Employees' Equivalent Retirement Plan, the FMC
Technologies, Inc. Non-Qualified Savings and Investment Plan and other savings
and retirement plans sponsored by the Company will be distributed pursuant to
the terms of the applicable plan.
Page 8
For all purposes under the Company's nonqualified retirement plans (including,
but not limited to, benefit calculation and benefit commencement), it will be
assumed 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 will be added); provided, however, that for purposes of
determining "final average pay" under such programs, the Executive's actual pay
history (whether with the Company or FMC) as of the Effective Date of
Termination will be used.
3.4. Termination for Disability. If the Executive's employment is terminated
--------------------------
due to Disability, the Executive will receive the Executive's Base Salary
through the Effective Date of Termination, and the Executive's benefits will be
determined in accordance with the Company's disability, retirement, survivor's
benefits, insurance and other applicable plans and programs then in effect. If
the Executive's employment is terminated due to Disability, he will not be
entitled to the Severance Benefits described in Section 3.3.
3.5. Termination upon Death. If the Executive's employment is terminated due
----------------------
to death, the Executive's benefits will be determined in accordance with the
Company's retirement, survivor's benefits, insurance and other applicable
programs of the Company then in effect. If the Executive's employment is
terminated due to death, neither the Executive nor the Executive's Beneficiary
will 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 will pay
the Executive an amount equal to the Executive's 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 plans of the
Company, at the time such payments are due and the Company will 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 will 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), (b), (c) and (d) herein will be paid in cash to the
Executive (or the Executive's Beneficiary, if applicable) 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 will be entitled to withhold from any
--------------------
amounts payable under this Agreement all taxes as may be legally required
(including,
Page 9
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 (or
-------------------------------
the Executive's Beneficiary, if applicable) 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"), whether or not the Executive has terminated employment with the
Company, if all or any part of the Total Payments will be subject to the tax
imposed by Section 4999 of the Code (or any similar tax that may hereafter be
imposed), (the "Excise Tax") the Company will 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 taxes, penalties, interest, and Excise Tax upon
the Gross-Up Payment provided for by this Section 5.1 (including FICA and FUTA),
will be equal to the Total Payments.
5.2. Tax Computation. All determinations of whether any of the Total Payments
---------------
will be subject to the Excise Tax, the amounts of such Excise Tax, whether and
when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the
assumptions to be used in arriving at such determinations, shall be made by a
nationally recognized certified public accounting firm that does not serve as an
accountant or auditor for any individual, entity or group effecting the Change
in Control as designated by the Company (the "Accounting Firm"). The Accounting
Firm will provide detailed supporting calculations to the Company and the
Executive within fifteen (15) business days of the receipt of notice from the
Executive or the Company requesting a calculation hereunder. The Gross-Up
Payment will be made by the Company to the Executive as soon as practical
following the Accounting Firm's determination of the Gross-Up Payment, but in no
event beyond thirty (30) days from the Effective Date of Termination. All fees
and expenses of the Accounting Firm will be paid by the Company.
For purposes of determining the amount of the Gross-Up Payment, the Executive
will 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 computations to be made pursuant to Section 5.2 herein, and as a
result of such adjustment the Gross-Up Payment made to the Executive is less
than the greatest Gross-Up Payment the Executive is entitled to receive, and the
Gross-Up Payment initially made to the Executive, plus a market rate of
interest, as determined by the Committee, for the period commencing on the date
the first Gross-Up Payment is made, and ending on the day immediately preceding
the date the subsequent Gross-Up Payment is made.
Page 10
Article 6. Establishment of Trust
As soon as practicable following the Effective Date hereof, the Company will
create a Trust (which will be a grantor trust within the meaning of Sections
671-678 of the Code) for the benefit of the Executive and Beneficiaries, as
appropriate. The Trust will have a Trustee as selected by the Company, and will
have certain restrictions as to the Company's ability to amend the Trust or
cancel benefits provided thereunder. Any assets contained in the Trust will, at
all times, be specifically subject to the claims of the Company's general
creditors in the event of bankruptcy or insolvency; 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), (c) and (d) and 5.1 of this Agreement.
As soon as practicable after the Company has knowledge that a Change in Control
is imminent, but no later than the day immediately preceding the date of the
Change in Control, the Company will 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), (c) and (d), 5.1 and 8.1 of this
Agreement. Such deposited amounts will 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 will be absolute and unconditional, and will 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 will be
paid without notice or demand. Each and every payment made hereunder by the
Company will be final, and the Company will 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 will 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 will 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(e) herein.
Page 11
Notwithstanding anything in this Agreement to the contrary, if Severance
Benefits are paid under this Agreement, no severance benefits under any program
of the Company, other than benefits described in this Agreement, will be paid to
the Executive.
Article 8. Fees and Expenses
To the extent permitted by law, the Company will pay as incurred (within ten
(10) days following receipt of an invoice from the Executive) 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,
without limitation, conflicts related to the calculations under Section 5
hereof) between the parties pertaining to this Agreement.
Article 9. Outplacement Assistance
Following a Qualifying Termination (as described in Section 3.2 herein), the
Executive will 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
for such outplacement services will 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.
10.2. Assignment by the Executive. This Agreement will 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, will 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 will be paid to the Executive's devisee, legatee, or other designee, or
if there is no such designee, to the Executive's estate, and such designee, or
the Executive's estate will be treated as the Beneficiary hereunder.
Article 11. Miscellaneous
Page 12
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, including, without limitation, payments under Section 5 hereof, 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 will be
------------
held illegal or invalid for any reason, the illegality or invalidity will not
affect the remaining parts of the Agreement, and the Agreement will 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 will 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 will be the controlling law in all
matters relating to this Agreement.
11.6 Indemnification. To the full extent permitted by law, the Company will,
---------------
both during and after the period of the Executive's employment, indemnify the
Executive (including by advancing him expenses) for any judgments, fines,
amounts paid in settlement and reasonable expenses, including any attorneys'
fees, incurred by the Executive in connection with the defense of any lawsuit or
other claim to which he is made a party by reason of being (or having been) an
officer, director or employee of the Company or any of its subsidiaries. The
Executive will be covered by director and officer liability insurance to the
maximum extent that that insurance covers any officer or director (or former
officer or director) of the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement on this __________
day of ___________________________, 2001.
FMC Technologies, Inc. Executive:
Page 13
By: ____________________________ __________________________
____________________________
Its: ____________________________
Attest:_____________________________
Page 14
Form II
FMC Technologies, Inc.
Executive Severance Agreement
THIS AGREEMENT is made and entered into as of the ____ day of
___________________, 2001, by and between FMC Technologies, Inc. (hereinafter
referred to as the "Company") and ______________________(hereinafter referred to
as the "Executive").
WHEREAS, the Board has approved the Company's 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 the Executive's 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 the Executive's 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;
WHEREAS, the Executive has an existing executive severance agreement
with FMC, the terms of which are substantially similar to the terms of this
Agreement;
WHEREAS, the Executive acknowledges that neither the IPO nor the
Distribution will result in a change in control of FMC under the Executive's
existing executive severance agreement with FMC;
WHEREAS, the Executive agrees that the terms of this Agreement
completely replace and supersede the provisions of the prior executive severance
agreement with FMC;
WHEREAS, the Executive acknowledges that neither the IPO nor the
Distribution will result in a Change in Control; and
WHEREAS, the Executive and the Company desire that the terms of this
Agreement will completely replace and supersede the provisions set forth in the
Plan,
setting forth the terms and provisions with respect to the Executive's
entitlement to payments and benefits following a Change in Control.
NOW THEREFORE, to assure the Company that it will have the continued
dedication of the Executive and the availability of the Executive's 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:
Article 1. Establishment, Term, and Purpose
This Agreement completely replaces and supersedes the provisions of the prior
executive agreement the Executive had with FMC. The Executive agrees that no
benefits will be paid to the Executive by FMC or the Company under the terms of
such prior executive severance agreement.
This Agreement will commence on the Effective Date and will continue in effect
for a three (3) year term, until the third anniversary of the Effective Date.
Upon each anniversary of the Effective Date, the term of this Agreement will be
extended automatically for one (1) additional year, unless the Committee
delivers written notice six (6) months prior to such anniversary to the
Executive that this Agreement will not be extended. In such case, this 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; and (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 will 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. Beneficiary means the persons or entities designated or deemed designated
-----------
by the Executive pursuant to Section 11.2 herein.
2.3. Board means the Board of Directors of the Company.
-----
2.4. Cause means:
-----
Page 2
(a) the Executive's Willful and continued failure to
substantially perform the Executive's employment duties in any material
respect (other than any such failure resulting from physical or mental
incapacity 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 the Executive has failed to
perform the Executive's duties, and after the Executive has failed to
resume substantial performance of the Executive's 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 or an Affiliate; or
(c) the Executive's having been convicted of, or pleading
guilty or nolo contendere to, a felony under federal or state law on or
prior to a Change in Control.
2.5. Change in Control means the happening of any of the following events:
-----------------
(a) An acquisition by any Person of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of twenty percent (20%) or more of either (i) the then outstanding
shares of common stock of the Company (the "Outstanding Company Common
Stock") or (ii) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities");
excluding, however, the following: (A) any acquisition directly from
the Company, other than an acquisition by virtue of the exercise of a
conversion privilege unless the security being so converted was itself
acquired directly from the Company, (B) any acquisition by the Company,
(C) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any entity controlled by the
Company, or (D) any acquisition pursuant to a transaction which
complies with Subsections (i), (ii) and (iii) of Subsection (C) of this
Section 2.5;
(b) A change in the composition of the Board such that the
individuals who, as of the Effective Date, constitute the Board (such
Board will be hereinafter referred to as the "Incumbent Board") cease
for any reason to constitute at least a majority of the Board;
provided, however, for purposes of this Section 2.5, that any
individual who becomes a member of the Board subsequent to the
Effective Date, whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least a majority
of those individuals who are members of the Board and who were also
members of the Incumbent Board (or deemed to be such pursuant to this
proviso) will be considered as though such individual were a member of
the Incumbent Board; but, provided further, that any such individual
whose initial assumption of office occurs as a result of either an
actual or threatened election contest (as such terms are used in Rule
14a-11 of Regulation 14A
Page 3
promulgated under the Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other
than the Board will not be so considered as a member of the Incumbent
Board;
(c) Consummation of a reorganization, merger or
consolidation, sale or other disposition of all or substantially all of
the assets of the Company, or acquisition by the Company of the assets
or stock of another entity ("Corporate Transaction"); excluding,
however, such a Corporate Transaction pursuant to which (i) all or
substantially all of the individuals and entities who are the
beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to
such Corporate Transaction will beneficially own, directly or
indirectly, more than sixty percent (60%) of, respectively, the
outstanding shares of common stock, and the combined voting power of
the then outstanding voting securities entitled to vote generally in
the election of directors, as the case may be, of the corporation
resulting from such Corporate Transaction (including, without
limitation, a corporation which as a result of such transaction owns
the Company or all or substantially all of the Company's assets either
directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Corporate
Transaction, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be, (ii) no Person (other
than the Company, any employee benefit plan (or related trust) of the
Company or such corporation resulting from such Corporate Transaction)
will beneficially own, directly or indirectly, twenty percent (20%) or
more of, respectively, the outstanding shares of common stock of the
corporation resulting from such Corporate Transaction or the combined
voting power of the outstanding voting securities of such corporation
entitled to vote generally in the election of directors except to the
extent that such ownership existed prior to the Corporate Transaction,
and (iii) individuals who were members of the Incumbent Board will
constitute at least a majority of the members of the board of directors
of the corporation resulting from such Corporate Transaction; or
(d) The approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
In addition, a Change in Control will be deemed to occur upon a change
in control of FMC, as determined under the change in control provisions of FMC's
executive severance plan, if at the time of its change in control, FMC owns more
than fifty percent (50%) of the Outstanding Company Common Stock.
Notwithstanding the foregoing, neither the IPO, nor the Distribution will be
treated as a Change in Control of the Company.
2.6. Code means the Internal Revenue Code of 1986, as amended from time to
----
time, and any successor thereto.
2.7. Committee means the Compensation and Organization Committee of the
---------
Board or any other committee of the Board appointed to perform the functions of
the Compensation and Organization Committee.
Page 4
2.8. Company means FMC Technologies, Inc., a Delaware corporation, or any
-------
successor thereto as provided in Article 10 herein.
2.9. 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.
2.10. Distribution means FMC's distribution of its interest in the Company.
------------
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 Securities Exchange Act of 1934, as amended
------------
from time to time, and any successor thereto.
2.14 FMC means FMC Corporation, a Delaware corporation.
---
2.15. Good Reason means, 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, without limitation, offices,
titles and reporting requirements) as an employee of the Company
(including, without limitation, any material change in duties or status
as a result of the stock of the Company ceasing to be publicly traded
or of the Company becoming a subsidiary of another entity), or a
reduction or alteration in the nature or status of the Executive's
authorities, duties, or responsibilities from the greatest of (i) those
in effect on the Effective Date; (ii) those in effect during the fiscal
year immediately preceding the year of the Change in Control (whether
with the Company or with FMC); and (iii) those in effect immediately
preceding the Change in Control;
(b) The Company's requiring the Executive to be based at a
location which is at least fifty (50) miles further from the
Executive's then current primary residence than is such residence from
the office where the Executive is located at the time of the Change in
Control, except for required travel on the Company's business to an
extent substantially consistent with the Executive's business
obligations as of the Effective Date or as the same may be changed from
time to time prior to a Change in Control;
(c) A reduction by the Company in the Executive's Base Salary
as in effect on the Effective Date or as the same may be increased from
time to time;
Page 5
(d) A material reduction in the Executive's level of
participation in any of the Company's short- and/or long-term incentive
compensation plans, or employee benefit or retirement plans, policies,
practices, or arrangements in which the Executive participates from the
greatest of the levels in place: (i) on the Effective Date; (ii) during
the fiscal year immediately preceding the fiscal year of the Change in
Control (whether with the Company or with FMC); and (iii) on the date
immediately preceding the date of 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 will not be affected by the Executive's temporary
incapacity due to physical or mental illness not constituting a Disability. The
Executive's continued employment will not constitute a waiver of the Executive's
rights with respect to any circumstance constituting Good Reason.
2.16. IPO means the initial registered public offering by the Company of
---
shares of common stock of the Company.
2.17. Notice of Termination means a written notice which indicates the
---------------------
specific termination provision in this Agreement relied upon, and sets 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.
2.18. Person has 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).
2.19. Qualifying Termination means any of the events described in Section
----------------------
3.2 herein, the occurrence of which triggers the payment of Severance Benefits
hereunder.
2.20. Retirement means the Executive's voluntary termination of employment
----------
in a manner that qualifies the Executive to receive immediately payable
retirement benefits from the FMC Technologies, Inc. Salaried Employees'
Retirement Program.
2.21. Severance Benefits means the payment of severance compensation as
------------------
provided in Section 3.3 herein.
2.22. Trust means the Company grantor trust to be created pursuant to
-----
Article 6 of this Agreement.
2.23. Willful means any act or omission by the Executive that was in good
-------
faith and without a reasonable belief that the action or omission was in the
best interests of the
Page 6
Company or its affiliates. Any act or omission based upon authority given
pursuant to a duly adopted Board resolution, or, upon the instructions of any
senior officer of the Company, or based upon the advice of counsel for the
Company will be conclusively presumed to be taken or omitted by the Executive in
good faith and in the best interests of the Company and/or its affiliates.
Article 3. Severance Benefits
3.1. Right to Severance Benefits. The Executive will 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 will not be entitled to receive Severance Benefits if the
Executive's employment is terminated (i) for Cause, (ii) due to a voluntary
termination without Good Reason other than during the thirteenth (13th) calendar
month following the month in which a Change in Control occurred, or (iii) due to
death or Disability after 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 will 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, Disability or death 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;
(c) A voluntary termination by the Executive within the thirteenth
(13th) 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;
(d) The Executive's termination of employment due to Retirement,
Disability or death at any time following a Change in Control and prior to
the thirteenth (13th) calendar month following the month in which the
Change in Control occurs; or
(e) The Company or any successor company breaches any of the
provisions of this Agreement.
Page 7
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 will pay to the Executive (or in the event of the
Executive's death, the Executive's Beneficiary) 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 up to and
including the Effective Date of Termination (whether with the Company or
FMC).
(b) An amount equal to three (3) times the greater of (i) the
Executive's highest annualized target total Management Incentive Award
granted under the Company's or FMC's Incentive Compensation and Stock Plan
for any plan year up to and including the plan year in which the
Executive's Effective Date of Termination occurs (whether with the Company
or FMC), and (ii) the average of the actual total Management Incentive
Awards paid (or payable) to the Executive for the two plan years
immediately preceding the Effective Date of Termination (whether with the
Company or FMC), or for such lesser number of such plan years for which the
Executive was eligible to earn a Management Incentive Award (from the
Company or FMC), annualized for any year that the Executive was not
employed by the Company or FMC, as applicable, for the entire plan year.
For purposes of determining actual total Management Incentive Awards under
the preceding sentence, any amounts the Executive deferred will be treated
as if they had been paid to the Executive, rather than deferred.
(c) An amount equal to the Executive's unpaid Base Salary, and unused
and accrued vacation pay, earned or accrued through the Effective Date of
Termination.
(d) An amount equal to the target total Management Incentive Award
established for the plan year in which the Executive's Effective Date of
Termination occurred, prorated through the Effective Date of Termination.
(e) A continuation of the Company's 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 will 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 date of the Change in Control. The
continuation of these welfare benefits will be discontinued prior to the
end of the three (3) year period if the Executive has available
substantially similar benefits at a comparable cost from a subsequent
employer, as determined by the Committee. The date that welfare benefits
cease to be provided under this paragraph will be the date of the
Executive's qualifying event for continuation coverage purposes under Code
Section 4980B(f)(3)(B).
Page 8
Awards granted under the FMC Technologies, Inc. Incentive Compensation and Stock
Plan, and other incentive arrangements adopted by the Company will 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 Technologies, Inc. Salaried Employees' Retirement
Program, the FMC Technologies, Inc. Savings and Investment Plan, the FMC
Technologies, Inc. Salaried Employees' Equivalent Retirement Plan, the FMC
Technologies, Inc. Non-Qualified Savings and Investment Plan and other savings
and retirement plans sponsored by the Company will be distributed pursuant to
the terms of the applicable plan.
For all purposes under the Company's nonqualified retirement plans (including,
but not limited to, benefit calculation and benefit commencement), it will be
assumed 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 will be added); provided, however, that for purposes of
determining "final average pay" under such programs, the Executive's actual pay
history (whether with the Company or FMC) as of the Effective Date of
Termination will be used.
3.4. Termination for Disability. If the Executive's employment is terminated due
--------------------------
to Disability, the Executive will receive the Executive's Base Salary through
the Effective Date of Termination; the Executive's benefits will be determined
in accordance with the Company's disability, retirement, survivor's benefits,
insurance and other applicable plans and programs then in effect; and, if such
termination occurs after a Change in Control and prior to the thirteenth (13th)
calendar month following the month in which the Change in Control occurs, the
Executive will receive the Severance Benefits described in Section 3.3. If the
Executive's employment is terminated due to Disability after the thirteenth
(13th) calendar month following the month in which a Change in Control occurs,
he will not be entitled to the Severance Benefits described in Section 3.3.
3.5. Termination upon Death. If the Executive's employment is terminated due to
----------------------
death, the Executive's benefits will be determined in accordance with the
Company's retirement, survivor's benefits, insurance and other applicable
programs of the Company then in effect; and, if such termination occurs after a
Change in Control and prior to the thirteenth (13th) calendar month following
the month in which the Change in Control occurs, Executive will receive the
Severance Benefits described in Section 3.3. If the Executive's employment is
terminated due to death after the thirteenth (13th) calendar month following the
month in which a Change in Control occurs, neither the Executive nor the
Executive's Beneficiary will 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 will pay
the Executive an
Page 9
amount equal to the Executive's 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 plans of the Company, at
the time such payments are due and the Company will 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 will 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), (b), (c) and (d) herein will be paid in cash to the Executive
(or the Executive's Beneficiary, if applicable) 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 will be entitled to withhold from any
--------------------
amounts payable under this Agreement all taxes as may be legally 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 (or the
-------------------------------
Executive's Beneficiary, if applicable) 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"),
whether or not the Executive has terminated employment with the Company, if all
or any part of the Total Payments will be subject to the tax imposed by Section
4999 of the Code (or any similar tax that may hereafter be imposed), (the
"Excise Tax") the Company will 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 taxes, penalties, interest, and Excise Tax upon the
Gross-Up Payment provided for by this Section 5.1 (including FICA and FUTA),
will be equal to the Total Payments.
5.2. Tax Computation. All determinations of whether any of the Total Payments
---------------
will be subject to the Excise Tax, the amounts of such Excise Tax, whether and
when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the
assumptions to be used in arriving at such determinations, shall be made by a
nationally recognized certified public accounting firm that does not serve as an
accountant or auditor for any individual, entity or group effecting the Change
in Control as designated by the Company (the "Accounting Firm"). The Accounting
Firm will provide detailed
Page 10
supporting calculations to the Company and the Executive within fifteen (15)
business days of the receipt of notice from the Executive or the Company
requesting a calculation hereunder. The Gross-Up Payment will be made by the
Company to the Executive as soon as practical following the Accounting Firm's
determination of the Gross-Up Payment, but in no event beyond thirty (30) days
from the Effective Date of Termination. All fees and expenses of the Accounting
Firm will be paid by the Company.
For purposes of determining the amount of the Gross-Up Payment, the Executive
will 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 computations to be made pursuant to Section 5.2 herein, and as a result of
such adjustment the Gross-Up Payment made to the Executive is less than the
greatest Gross-Up Payment that the Executive is entitled to receive under
Section 5.2, the Company will pay to the Executive an amount equal to the
difference between the greatest Gross-Up Payment the Executive is entitled to
receive, and the Gross-Up Payment initially made to the Executive, plus a market
rate of interest, as determined by the Committee, for the period commencing on
the date the first Gross-Up Payment is made, and ending on the day immediately
preceding the date the subsequent Gross-Up Payment is made.
Article 6. Establishment of Trust
As soon as practicable following the Effective Date hereof, the Company will
create a Trust (which will be a grantor trust within the meaning of Sections
671-678 of the Code) for the benefit of the Executive and Beneficiaries, as
appropriate. The Trust will have a Trustee as selected by the Company, and will
have certain restrictions as to the Company's ability to amend the Trust or
cancel benefits provided thereunder. Any assets contained in the Trust will, at
all times, be specifically subject to the claims of the Company's general
creditors in the event of bankruptcy or insolvency; 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), (c) and (d) and 5.1 of this Agreement.
As soon as practicable after the Company has knowledge that a Change in Control
is imminent, but no later than the day immediately preceding the date of the
Change in Control, the Company will deposit assets in such Trust in an amount
equal to the
Page 11
estimated aggregate Severance Benefits which may become due to the Executive
under Sections 3.3 (a), (b), (c) and (d), 5.1 and 8.1 of this Agreement. Such
deposited amounts will 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 will be absolute and unconditional, and will 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 will be
paid without notice or demand. Each and every payment made hereunder by the
Company will be final, and the Company will 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 will 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 will 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(e) herein.
Notwithstanding anything in this Agreement to the contrary, if Severance
Benefits are paid under this Agreement, no severance benefits under any program
of the Company, other than benefits described in this Agreement, will be paid to
the Executive.
Article 8. Fees and Expenses
To the extent permitted by law, the Company will pay as incurred (within ten
(10) days following receipt of an invoice from the Executive) 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,
without limitation, conflicts related to the calculations under Section 5
hereof) between the parties pertaining to this Agreement.
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 will 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
for such outplacement services will be
Page 12
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.
10.2. Assignment by the Executive. This Agreement will 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, will 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 will be paid to the Executive's devisee, legatee, or other designee, or
if there is no such designee, to the Executive's estate, and such designee, or
the Executive's estate will be treated as the Beneficiary hereunder.
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, including, without limitation, payments under Section 5 hereof, 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 will be held
------------------
illegal or invalid for any reason, the illegality or invalidity will not affect
the remaining parts of the Agreement, and the Agreement will 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 will
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 13
11.5. Applicable Law. To the extent not preempted by the laws of the United
--------------
States, the laws of t he state of Illinois will be the controlling law in all
matters relating to this Agreement.
11.6 Indemnification. To the full extent permitted by law, the Company will,
---------------
both during and after the period of the Executive's employment, indemnify the
Executive (including by advancing him expenses) for any judgments, fines,
amounts paid in settlement and reasonable expenses, including any attorneys'
fees, incurred by the Executive in connection with the defense of any lawsuit or
other claim to which he is made a party by reason of being (or having been) an
officer, director or employee of the Company or any of its subsidiaries. The
Executive will be covered by director and officer liability insurance to the
maximum extent that that insurance covers any officer or director (or former
officer or director) of the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement on this ________
day of ________________________________, 2001.
FMC Technologies, Inc. Executive:
By: ___________________________ ____________________________
___________________________
Its: ___________________________
Attest: ___________________________
Page 14
