Exhibit 10.12
FORM IA
FMC Corporation
Executive Severance
Agreement
THIS AMENDED AND RESTATED
AGREEMENT is made and
entered into as of the 31st day of December, 2008 ,
by and between FMC Corporation (hereinafter referred to as the
“Company”) and William G. Walter (hereinafter
referred to as the “Executive”) (the
“Agreement”).
WHEREAS , the Executive is currently a party to an
Executive Severance Agreement with the Company dated
October 1, 2001 (the “Prior
Agreement”);
WHEREAS , as a result of the enactment of
Section 409A of the Code of 1986, as amended (“Section
409A”), certain amounts that may be paid under the Prior
Agreement could subject the Executive to adverse tax consequences
unless the Prior Agreement is amended to comply with
Section 409A; and
WHEREAS , the Executive and the Company desire that the
Prior Agreement be amended and that the terms of this Agreement
will completely replace and supersede the provisions of the Prior
Agreement and any other prior executive severance agreement with
the Company.
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 Executive agree to the amendment and restatement of the Prior
Agreement as follows:
Article 1. Establishment, Term,
and Purpose
This Agreement is effective from 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 end of 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. Affiliate means a
corporation or other entity controlled by, controlling or under
common control with the Company, including, without limitation, any
corporation partnership, joint venture or other entity during any
period in which at least a fifty percent (50%) voting or
profits interest is owned, directly or indirectly, by the Company
or any successor to the Company.
2.2. 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.
2.3. Beneficiary means the
persons or entities designated or deemed designated by the
Executive pursuant to Section 11.2 herein.
2.4. Board means the Board of
Directors of the Company.
2.5. Cause means:
(a) the Executive’s Willful
and continued failure to substantially perform the
Executive’s employment duties in any material respect (other
than any such failure resulting from physical or mental incapacity
(that could be reasonably expected to result in Disability) or
occurring after issuance by the Executive of a Notice of
Termination for Good Reason), after a written demand for
substantial performance is delivered to the Executive that
specifically identifies the manner in which the Company believes
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.
2.6. 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 2.6;
(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 2.6, that any individual who becomes
a member of the Board subsequent to the Effective Date, whose
election, or nomination for election by the Company’s
stockholders, was approved by a vote of at least a majority of
those individuals who are members of the Board and who were also
members of the Incumbent Board (or deemed to be such pursuant to
this proviso) will be considered as though such individual were a
member of the Incumbent Board; but, provided further, that any such
individual whose initial assumption of office occurs as a result of
either an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board will
not be so considered as a member of the Incumbent Board;
(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.
2.7. Code means the Internal Revenue Code
of 1986, as amended from time to time, and any successor
thereto.
2.8. 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.
2.9. Company means FMC
Corporation, a Delaware corporation, or any successor thereto as
provided in Article 10 herein.
2.10. Date of Separation from
Service means the date on which a Qualifying Termination
occurs.
2.11. 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.
2.12. Effective Date means
the date of the Prior Agreement, but for purposes of the definition
of Change in Control means May 1, 2001.
2.13. Exchange Act means the
Securities Exchange Act of 1934, as amended from time to time, and
any successor thereto.
2.14. 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; 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;
(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; 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.
2.15. 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.
2.16. 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).
2.17. Qualifying Termination
means any of the events described in Section 3.2 herein, the
occurrence of which triggers the payment of Severance Benefits
hereunder.
2.18. Separation from Service
means the Executive’s termination of employment with the
Company, its Affiliates and with each member of the controlled
group (within the meaning of Sections 414(b) or (c) of the
Code) of which the Company is a member. An Executive will not be
treated as having a Separation from Service during any period the
Executive’s employment relationship continues, such as a
result of a leave of absence, and whether a Separation from Service
has occurred shall be determined by the Committee (on a basis
consistent with rules under Section 409A) after consideration
of all the facts and circumstances, including whether either no
further services are to be performed or there is a reasonably
anticipated permanent and substantial decrease (e.g., 80% or more)
in the level of services to be performed (and the related amount of
compensation to be received for such services) below the level of
services previously performed (and compensation previously
received).
2.19. Severance Benefits
means the payment of severance compensation as provided in
Section 3.3 herein.
2.20. Trust means the Company
grantor trust to be created pursuant to Article 6 of this
Agreement.
2.21. 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, by the end of the twenty-fourth (24th) calendar month
following the end of the month in which the Change in Control
occurs, 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 (13 th ) calendar month following
the end of the month in which a Change in Control occurs, or
(iii) due to death or Disability other than death or
Disability that occurs prior to the end of the thirteenth
(13 th ) calendar month following
the end of the month in which a Change in Control
occurs.
3.2. Qualifying Termination .
A Qualifying Termination shall occur if:
(a) The Executive incurs a
Separation from Service because of an involuntary termination of
the Executive’s employment by the Company for reasons other
than Cause, Disability or death; or
(b) The Executive incurs a
Separation from Service because of a voluntary termination by the
Executive for Good Reason pursuant to a Notice of Termination
delivered
