amendment to executive severance agreement
executive severance plan amendment
EXECUTIVE SEVERANCE AGREEMENT DATED 10/01/2001
 
 
                                 FMC Corporation
                          Executive Severance Agreement
                          -----------------------------
 
         THIS AGREEMENT is made and entered into as of the 1/st/ day of October,
                                                           -----      -------
2001, by and between FMC Corporation (hereinafter referred to as the "Company")
and William G. Walter (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, the Executive agrees that the terms of this Agreement
completely replace and supersede the provisions of any prior executive severance
agreement with the Company;
 
         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 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:
 
                                       -1-
 
<PAGE>
 
Article 1. Establishment, Term, and Purpose
 
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:
      -----
 
            (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
 
                                       -2-
 
<PAGE>
 
              (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 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
 
                                       -3-
 
<PAGE>
 
         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.
 
         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.
 
2.8.     Company means FMC Corporation, 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 the Company's distribution of its interest in FMC
         ------------
Technologies, Inc.
 
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.
 
                                       -4-
 
<PAGE>
 
2.13.   Exchange Act means the Securities Exchange Act of 1934, as amended from
        ------------
time to time, and any successor thereto.
 
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; 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.
 
                                       -5-
 
<PAGE>
 
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.    IPO means the initial registered public offering by the Company of
         ---
shares of common stock of the Company.
 
2.16.    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.
 
2.17.    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).
 
2.18.    Qualifying Termination means any of the events described in Section 3.2
         ----------------------
herein, the occurrence of which triggers the payment of Severance Benefits
hereunder.
 
2.19.    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 Corporation Salaried Employees' Retirement Program.
 
2.20.    Severance Benefits means the payment of severance compensation as
         ---------
provided in Section 3.3 herein.
 
2.21.    Trust means the Company grantor trust to be created pursuant to Article
         -----
6 of this Agreement.
 
2.22.    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.
 
                                       -6-
 
<PAGE>
 
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 (13/th/) 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.
 
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.
 
                  (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 Incentive Compensation and Stock Plan for
         any
 
                                       -7-
 
<PAGE>
 
         plan year up to and including the plan year in which the Executive's
         Effective Date of Termination occurs, 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, or for such lesser number of such plan years for
         which the Executive was eligible to earn a Management Incentive Award,
         annualized for any year that the Executive was not employed by the
         Company 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 Corporation 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 Corporation Salaried Employees' Retirement Program,
the FMC Corporation Savings and Investment Plan, the FMC Corporation Salaried
Employees' Equivalent Retirement Plan, the FMC Corporation 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
 
                                       -8-
 
<PAGE>
 
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 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
(13/th/) 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 (13/th/) 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 (13/th/) 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 (13/th/) 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 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 (13/th/) calendar month
following the month in which a Change in Control occurs will be communicated by
a Notice of Termination.
 
                                       -9-
 
<PAGE>
 
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 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,
 
                                      -10-
 
<PAGE>
 
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 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
 
                                      -11-
 
<PAGE>
 
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 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
 
                                      -12-
 
<PAGE>
 
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.
 
11.5. Applicable  Law. To the extent not preempted by the laws of the United
      ---------------
States, the laws of the state of Delaware will be the controlling law in all
matters relating to this Agreement.
 
                                      -13-
 
<PAGE>
 
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 30/th/ day
                                                                     -----
day of October, 2001.
       -------
 
FMC Corporation, Inc.                                Executive:
By:
 
 
          /s/ Robert N. Burt                         /s/ William G. Walter
         ----------------------------                --------------------------
Its:     Chairman
 
 
Attest:
 
          /s/ Kenneth R. Garrett
         ----------------------------
 
                                      -14-
 
</TEXT>
</DOCUMENT>

 

EX-10.12 13 dex1012.htm EXECUTIVE SEVERANCE AGREEMENT - WILLIAM G. WALTER

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 (13th) 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 (13th) 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 to the Company by the Executive;

(c) The Executive incurs a Separation from Service because of a voluntary termination by the Executive without Good Reason within the thirteenth (13th) calendar month following the end of the month in which a Change in Control occurs pursuant to a Notice of Termination delivered to the Company by the Executive; or

(d) The Executive incurs a Separation from Service due to Disability or death by the end of the thirteenth (13th) calendar month following the end of the month in which the Change in Control occurs.

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 at the time or times provided in this Section 3.3 and Section 4.1 herein:

(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 Date of Separation from Service.


(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 FMC Corporation Incentive Compensation and Stock Plan for any plan year up to and including the plan year in which the Executive’s Date of Separation from Service occurs, and (ii) the average of the actual total Management Incentive Awards paid (or payable) to the Executive for the two plan years completed immediately preceding the Date of Separation from Service, or for such lesser number of such plan years for which the Executive was eligible to earn a Management Incentive Award, annualized for any year that the Executive was not employed by the Company 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 Date of Separation from Service.

(d) An amount equal to the target total Management Incentive Award established for the plan year in which the Executive’s Date of Separation from Service occurred, prorated through the Date of Separation from Service.

(e) A continuation of the Company’s welfare benefits of life and accidental death and dismemberment, and disability insurance coverage for three (3) full years after the Date of Separation from Service. 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.

(f) For a period of three (3) full years following the Date of Separation from Service, the Company shall provide medical insurance for the Executive (and 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 this medical insurance will be discontinued prior to the end of the three (3) year period if the Executive has available substantially similar medical insurance at a comparable cost from a subsequent employer, as determined by the Committee. The date that medical benefits provided in this paragraph 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). The right to medical insurance pursuant to this Section 3.3(f) in a calendar year shall not affect the Executive’s right to any benefits in another calendar year.


Awards granted under the FMC Corporation 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 Date of Separation from Service under the FMC Corporation Salaried Employees’ Retirement Program, the FMC Corporation Savings and Investment Plan, the FMC Corporation Salaried Employees’ Equivalent Retirement Plan, the FMC Corporation 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.

Following a Change in Control, for purposes of benefit calculation only under the Company’s nonqualified retirement plans with respect to benefits that have not been paid prior to such Change in Control, it will be assumed that the Executive’s employment continued following the Date of Separation from Service 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 as of the Date of Separation from Service 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 Date of Separation from Service; 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’s estate 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. 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 Good Reason), the Company will pay the Executive an amount equal to the Executive’s Base Salary and accrued vacation through the Date of Separation from Service, 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. Subject to Section 4.3, the Severance Benefits described in this Agreement shall be paid in a lump sum or shall commence, as applicable, as soon as practicable following, but in no event beyond thirty (30) days after, the Executive’s Separation from Service.

4.2. Withholding of Taxes. The Company will be entitled to withhold from any amounts payable under this Agreement all taxes as it may believe are reasonably required to be withheld (including, without limitation, any United States federal taxes and any other state, city, or local taxes).

4.3. Mandatory Deferral Rule. Notwithstanding any other provision of this Agreement to the contrary, any payment that constitutes the deferral of compensation (within the meaning of Treasury Regulation Section 1.409A-1(b)) that is otherwise required to be made to the Executive prior to the day after the date that is six months from the Date of Separation from Service shall be accumulated, deferred and paid in a lump sum to the Executive (with interest on the amount deferred from the Date of Separation from Service until the day prior to the actual payment at the federal short-term rate on the Date of Separation from Service) on the day after the date that is six months from the Date of Separation from Service; provided, however, if Executive dies prior to the expiration of such six month period, payment to the Executive’s Beneficiary shall be made as soon as practicable following the Executive’s death.

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 as a result of the Executive’s Separation from Service (in the aggregate, the “Total Payments”), 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. Subject to Section 4.3, 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 Date of Separation from Service. 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 Date of Separation from Service, 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 interest at the federal short-term rate, compounded annually, on the date the first Gross-Up Payment is made, 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 (the “Excess Payment”). The Excess Payment must be made by the end of the year in which the Internal Revenue Service adjusts the computations made pursuant to Section 5.2.

Article 6. Establishment of Trust

As soon as practicable following the Effective Date hereof, the Company will create a domestic 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 Sections 3.3(e) and (f) 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; provided, however, that the Company will reimburse the Executive only for such expenses arising out of litigation commenced within three years following the Executive’s Separation from Service. Notwithstanding any other provision in this Article 8, the Company will reimburse the Executive only for expenses incurred prior to the end of the fifth year following the Executive’s Separation from Service and any reimbursement must be made on or before the last day of the year following the year in which the expense was incurred.


Article 9. Outplacement Assistance

Following a Qualifying Termination, other than a voluntary termination by the Executive during the thirteenth (13 th) 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 Date of Separation from Service; provided, however, that reimbursements must be made by the end of the third year following the Date of Separation from Service and 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 Date of Separation from Service.

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.

11.5. Applicable Law. To the extent not preempted by the laws of the United States, the laws of the state of Delaware 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 amended and restated Agreement on this 1st day of November, 2008.

 

FMC Corporation

 

Executive:

 

By:

 

/S/    KENNETH R. GARRETT         

 

 

/S/    WILLIAM G. WALTER         

 

 

Kenneth R. Garrett

 

 

 

 

Its:

 

Vice President Human Resources & Corporate Communications

 

 

 

 

Attest:

 

/S/    THERESA M. KLAISS         

 

 

 

 


EX-10.10 12 dex1010.htm EXECUTIVE SEVERANCE PLAN

Exhibit 10.10

FMC Corporation

Executive Severance Plan

(As Amended and Restated Effective as of January 1, 2009)

1. History and Purpose. The Company adopted the Plan in 1983 and amended and restated the Plan in 1997, 2000 and 2001. The Plan is hereby amended and restated as of January 1, 2009 in order to comply with Section 409A of the Internal Revenue Code of 1986, as amended. The purpose of the Plan is to assure the Company that it will have the continued dedication and the availability of objective advice and counsel from key executives of the Company, notwithstanding the possibility, threat or occurrence of a bid to take over control of the Company.

The Board believes it is imperative that, if the Company receives any proposals from a third person concerning a possible business combination with the Company or the acquisition of the Company’s equity securities, both the Company and the Board be able to rely upon key executives to continue in their positions and to be available for advice, without concern that those individuals might be distracted by their own personal financial situations and the risks to themselves created by the proposal.

If the Company receives any such proposal, key executives will be called upon to assist in assessing the proposal, to advise management and the Board regarding whether the proposal is in the best interest of the Company and its stockholders, and to take such other actions as the Board might deem appropriate.

2. Eligible Executives. The following individuals will be Participants:

 

 

a.

the Chairman of the Board;

 

 

b.

the President, the Executive Vice Presidents, and the Senior Vice Presidents of the Company;

 

 

c.

the Group and Regional Managers of the Company;

 

 

d.

other officers of the Company, except Assistant Secretaries and Assistant Treasurers;

 

 

e.

Division Managers of the Company; and

 

 

f.

other key executives of the Company and its Affiliates who are from time to time named as Participants by the Committee in its sole discretion.

A Participant will cease to be a Participant if and when the Committee determines he or she should no longer be a Participant. The Committee will not determine that a Participant has ceased to be a Participant during any period that the Company knows a Person has taken steps reasonably calculated to effect a Change in Control, and before the Board has determined that


that Person has abandoned or terminated its efforts to effect a Change in Control. The decision of the Board that a Person has abandoned or terminated its efforts to effect a Change in Control will be conclusive and binding on all Participants.

3. Terms of the Plan. The terms of the Plan are as set forth in the forms of Agreement attached to this Plan, with Form IA applicable to Tier IA Participants, Form I applicable to Tier I Participants, Form II applicable to Tier II Participants and Form III applicable to Tier III Participants. The Company will enter into Agreements with each Participant containing the terms set forth in the applicable form. Once an individual becomes a Participant, for periods prior to the date the Company and the Participant execute an Agreement, the Participant will be entitled to participate in the Plan on the terms and conditions set forth in the form of Agreement applicable to the Participant.

4. Certain Definitions. Capitalized terms used in this Plan will have the meanings set forth below.

 

 

a.

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.

 

 

b.

Agreement means the executive severance agreements, in the forms attached to the Plan, that the Company enters into with Participants to memorialize the terms of their entitlement to executive severance benefits.

 

 

c.

Board means the Board of Directors of the Company, as it is constituted from time to time.

 

 

d.

Change in Control means the happening of any of the following events:

(1) 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 (A) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (B) 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: (i) 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, (ii) any acquisition by the Company, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any entity controlled by the Company, or (iv) any acquisition pursuant to a transaction which complies with Subsections (A), (B) and (C) of Subsection (3) of this Section 4(d);

 

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(2) 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 4(d), 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;

(3) 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 (A) 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, (B) 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 (C) 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

 

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(4) The approval by the stockholders of the Company of a complete liquidation or dissolution of the Company.

 

 

e.

Committee means the Compensation and Organization Committee of the Board, or any other committee of the Board that has, on the date of determination, the duties and responsibilities delegated to the Compensation and Organization Committee as of the Effective Date.

 

 

f.

Company means FMC Corporation, a Delaware Corporation, or any successor thereto.

 

 

g.

Effective Date means May 1, 2001, the date the Plan was adopted by the Board.

 

 

h.

Exchange Act means the Securities Exchange Act of 1934, as amended, or any successor thereto.

 

 

i.

FMC means FMC Corporation, a Delaware corporation.

 

 

j.

Participant means one of the Tier IA Participants, Tier I Participants, Tier II Participants or Tier III Participants.

 

 

k.

Person has the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and used in Sections B(d) and 14(d) thereof, including a “group” as provided in Section B(d) thereof.

 

 

1.

Plan means the FMC Corporation Executive Severance Plan, as set forth herein and as hereinafter amended from time to time.

 

 

m.

Tier IA Participants means the Chairman of the Board, the Chief Executive Officer and the President of the Company, and any other employees of the Company or an Affiliate designated by the Committee as Tier IA Participants.

 

 

n.

Tier I Participants means the Executive Vice Presidents, Senior Vice Presidents, Group Managers, and International Regional Managers of the Company, and any other employees of the Company or an Affiliate designated by the Committee as Tier I Participants.

 

 

o.

Tier II Participants means all officers of the Company other than Tier IA Participants, Tier I Participants, Tier III Participants, Assistant Secretaries and Assistant Treasurers, and any other employees of the Company or an Affiliate designated by the Committee to be Tier II Participants.

 

 

p.

Tier III Participants means Division Managers of the Company and any other employees of the Company or an Affiliate designated by the Committee to be Tier III Participants.

 

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5. Trust. The Company will create a domestic trust in accordance with the terms of the forms of Agreement. The trust will have such assets as the forms of Agreement provide. 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. The trust document must specifically state that any assets held under it will be subject to the claims of the Company’s general creditors in the event of bankruptcy or insolvency, and must detail the required procedure for notifying the trustee of the Company’s bankruptcy or insolvency.

6. Termination and Amendment of the Plan. The Board or the Committee will have the power at any time, in its discretion, to amend, abandon or terminate the Plan, in whole or in part. Notwithstanding the foregoing, no amendment, abandonment or termination may modify, waive or discharge any provisions of the Agreements, unless each affected Participant agrees in writing, signed by the Participant and an authorized member of the Board or the Committee (or by either or both parties’ legal representatives or successors), to the modification, waiver or discharge.

7. Governing Law. The validity, interpretation, construction and enforcement of this Plan will be governed by the laws of the State of Delaware, without giving effect to that state’s conflicts of laws principles. Notwithstanding the foregoing, to the extent state laws are preempted by the laws of the United States, the laws of the United States will control the validity, interpretation, construction and enforcement of this Plan.

8. Administration by the Committee. The Committee is the administrator of the Plan, and has all powers necessary to carry out the Plan’s provisions. Among other things, the Committee has the authority, subject to the terms of the Plan and the Agreements, to adopt, alter and replace administrative rules, guidelines and practices governing the Plan, to interpret the terms and provisions of the Plan and any Agreements and to take any action it deems appropriate for the administration of the Plan. The Committee may act only by a majority of its members then in office unless it allocates or delegates its authority to a Committee member or other person to act on its behalf. The Committee may allocate all or any portion of its responsibilities and powers to anyone or more of its members and may delegate all or any part of its responsibilities and powers to any other person or persons. Any such allocation or delegation may be revoked by the Committee at any time. The regularly kept records of the Company and its Affiliates will be final, conclusive and binding on all persons regarding a Participant’s date and length of service, amount of compensation and the manner of its payment, type and length of absences from work and all other matters contained in those records. Any authority granted to the Committee may also be exercised by the Board. To the extent that any permitted action taken by the Board conflicts with action taken by the Committee, the Board action will control.

9. Incapacity. If any person entitled to a distribution under the Plan is deemed by the Company or the Committee or their delegates to be incapable of personally receiving and giving a valid receipt for the distribution, then, unless and until a duly appointed guardian or other representative of the person claims the distribution, the Company or its delegate may pay the distribution or any part of it to any other person or institution then contributing toward or

 

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providing for the care and maintenance of the person entitled to the distribution. Any payment pursuant to the preceding payment will be a payment for the account of the person entitled to it, and a complete discharge of the Company, the Board, the Committee, their delegates and the Plan from any liability for the payment.

10. Indemnification. The Company and each Affiliate will indemnify and hold harmless each member of the Board and the Committee, or any employee of the Company or any Affiliate (to the extent not indemnified or saved harmless under any liability insurance or any other indemnification arrangement) from any and all claims, losses, liabilities, costs and expenses (including attorneys’ fees) arising out of any actual or alleged act or failure to act made in good faith pursuant to the provisions of the Plan or the trust, including expenses reasonably incurred in the defense of any claim regarding the administration of the Plan or the trust. Notwithstanding the foregoing, no indemnification or defense will be provided under this Plan or trust to any person, regarding any conduct that has been judicially determined, or agreed by the parties, either to have constituted willful misconduct by that person, or to have resulted in his or her receipt of personal profit or advantage to which he or she was not entitled.

11. Limitations on Liability. Notwithstanding any of the preceding provisions of this Plan, neither the Company, the Board, the Committee nor any individual acting as an employee or agent of the Company will be liable to any Participant, former Participant or other person for any claim, loss, liability or expense incurred in connection with the Plan, other than claims for benefits payable under any Agreement.

12. Unclaimed Benefit. If all or any portion of a distribution payable to a Participant cannot be timely paid because the Committee is unable to locate the Participant, after sending a registered letter, return receipt requested, to the last known address of the Participant, then the amount payable to the Participant will become a forfeiture, and will be retained by the Company as part of its general assets.

IN WITNESS WHEREOF, the Company has caused this Plan to be executed in its name and behalf on this November 19, 2008.

 

FMC CORPORATION

By:

 

/s/ Kenneth R. Garrett

Its:

 

Vice-President of Human Resources

& Corporate Communications

 

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