Delaware | 1-2376 | 94-0479804 |
(State or other jurisdiction of incorporation or organization) | (Commission File Number) | (I.R.S. Employer Identification No.) |
1735 Market Street Philadelphia, Pennsylvania | 19103 | |
(Address of principal executive offices) | (Zip Code) |
o | Written communications pursuant to Rule 425 under the Securities Act |
o | Soliciting material pursuant to Rule 14a-2 under the Exchange Act |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act |
Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
(a) | A cash lump-sum severance payment of $946,438, payable on or before May 23, 2013; |
(b) | A cash payment of $72,201, in respect of earned but unused, as well as accrued, vacation time; |
(c) | Continued group health coverage at his current monthly rate for Mr. Wilson and his eligible dependents for one year; |
(d) | Payments under the Company's performance-based cash incentive program based on actual corporate performance during the relevant performance periods, pro-rated in each case to reflect Mr. Wilson's employment for less than the entire performance period; such payments, if any, shall be made within 2 and ½ months following the end of the relevant performance period; |
(e) | Continued vesting of the stock option granted to Mr. Wilson on February 17, 2011, and upon vesting such option will remain exercisable until February 17, 2015; |
(f) | Continuing exercisability, until April 30, 2014, of all other stock options held by Mr. Wilson to the extent vested as of April 30, 2013; |
(g) | Pro-rata vesting of any restricted stock units held by Mr. Wilson based on the days employed during the otherwise applicable vesting period over the full vesting period; |
(h) | Reimbursement of legal fees (not to exceed $5,000) incurred by Mr. Wilson in connection with the preparation and negotiation of the Agreement; |
(i) | Reimbursement of executive outplacement services (not to exceed $40,000); and |
(j) | Reimbursement for financial and tax planning services (not to exceed $10,000). |
Exhibit Number | Description | |
10.1 | Transition Agreement by and between D. Michael Wilson and FMC Corporation, dated April 29, 2013. |
FMC CORPORATION (Registrant) | |||
Date: April 30, 2013 | By: | S/ PAUL W. GRAVES | |
Paul W. Graves Executive Vice President and Chief Financial Officer |
Exhibit Number | Description | |
10.1 | Transition Agreement by and between D. Michael Wilson and FMC Corporation, dated April 29, 2013. |
1. | Term. |
2. | Compensation Following the Termination Date. |
(a) | Survival and Continued Vesting of Otherwise Unvested Stock Options. The stock options listed in Section 1 of Exhibit A will remain outstanding and will become exercisable as scheduled in the ordinary course through the first anniversary of the Termination Date, notwithstanding your cessation of employment. Once exercisable, those options will remain exercisable through February 17, 2015, notwithstanding your prior cessation of employment; provided that those options will remain subject to early termination provisions contained in the applicable plan and/or award agreement that relate to changes in control, reorganizations, liquidations or similar business transactions or events. |
(b) | Survival of Vested Options. The stock options listed in Section 2 of Exhibit A will remain exercisable until the first anniversary of the Termination Date, notwithstanding your cessation of employment; provided that those options will remain subject to early termination provisions contained in the applicable plan and/or award agreement that relate to changes in control, reorganizations, liquidations or similar business transactions or events. |
(c) | Performance-Based Cash Incentives. Notwithstanding the otherwise applicable terms governing the Company’s 2011-2013, 2012-2014 and 2013-2015 performance-based cash incentive programs, you will remain eligible to receive a pro-rata payment under such programs, determined as follows: |
(1) | the amount of performance based cash otherwise payable to you under such programs (but for your cessation of employment) will be determined by the Company in the ordinary course, based on actual corporate performance for the relevant performance period; |
(2) | each amount determined under clause (1), above, will be multiplied by a fraction to reflect your employment for less than the entire performance period. With respect to the 2011-2013 performance period, the fraction will be 75.3%; with respect to the 2012-2014 performance period, the fraction will be 44.3%; and with respect to the 2013-2015 performance period, the fraction will be 10.9%; and |
(3) | each amount determined under clause (2), above, will be paid to you within two and one-half months following the end of the applicable performance period. |
(d) | Restricted Stock Units. The restricted stock units (“RSUs”) held by you will vest, and the shares underlying such RSUs will be delivered, in accordance with the terms of the applicable award agreements. For purposes of those agreements, your cessation of employment with the Company will be deemed a termination by the Company “without Cause.” |
(e) | Severance Payment. The Company will pay you a cash lump-sum severance payment of $946,438.00 on or before May 23, 2013. |
(f) | COBRA Premium Waiver. The Company will waive a portion of the applicable premium otherwise payable for continued health and medical coverage (described under Part 6 of Title I of the Employee Retirement Income Security Act of 1974, as amended, and all related state and local laws (hereinafter “COBRA Continuation Coverage”) for you (and, to the extent covered by the Company’s group health and dental plan immediately prior to the Termination Date, your eligible dependents) for the 12 month period following your Termination Date, which portion will be equal to the difference between (A) the applicable monthly premium otherwise payable for COBRA Continuation Coverage and (B) the |
(g) | Vacation. You will receive a payment in respect of your earned but unused, as well as your accrued, vacation time as of the Termination Date, paid in accordance with the Company’s normal payroll practices and policies. Such amount will be approximately $72,201.00 in aggregate as of the Effective Date, but shall be reduced to the extent any vacation time has been or is taken during the Term. |
(h) | Other Benefits. You will be eligible to receive: |
(1) | executive outplacement services at a cost not to exceed $40,000.00 (to be invoiced directly to the Company from the outplacement firm chosen by you); |
(2) | financial and tax planning services at a cost not to exceed $5,000.00 for calendar year 2013 and an additional $5,000.00 for calendar year 2014; and |
(3) | reimbursement up to $5,000.00 for the legal expenses that you incur prior to May 1, 2013 related to the negotiation and drafting of this Agreement. |
3. | Release of Claims. |
4. | Section 409A. |
5. | Restrictive Covenants. To induce the Company to enter into this Agreement and in recognition of the compensation to be paid to you pursuant to Section 2 of this Agreement, you agree to be bound by the provisions of this Section 5 (the “Restrictive Covenants”). |
(a) | Covenant Not To Compete. You covenant that, during the Term and for the 12 month period immediately following the Termination Date (the “Restricted Period”), you will not (except in your capacity as an employee or director of the Company) do any of the following, directly or indirectly: |
(1) | perform services in any capacity for, or undertake any venture together with, any Competing Business, unless |
(2) | influence or attempt to influence any employee, consultant, supplier, licensor, licensee, contractor, agent, strategic partner, distributor, customer or other person to terminate or modify any written or oral agreement, arrangement or course of dealing with the Company or any of its affiliates; or |
(3) | solicit for employment or employ or retain (or arrange to have any other person or entity employ or retain) any person who has been employed or retained by the Company or any of its affiliates within the 3 month period immediately preceding the date of such solicitation, employment or retention; provided, however, that this restriction will not apply to any person whose employment by the Company or any of its affiliates was terminated by the Company or any such affiliate during such 3 month period. |
(b) | Confidentiality. You recognize and acknowledge that the Proprietary Information (as defined below) is a valuable, special and unique asset of the business of the Company and its affiliates. As a result, both during the Term and thereafter, you will not, without the prior written consent of the Company, for any reason divulge to any third‑party or use for your own benefit, or for any purpose other than the exclusive benefit of the Company and its affiliates, any Proprietary Information. Notwithstanding the foregoing, if you are compelled to disclose Proprietary Information by court order or other legal or regulatory process, to the extent permitted by applicable law, you shall promptly so notify the Company so that it may seek a protective order or other assurance that confidential treatment of such Proprietary Information shall be afforded, and you will cooperate with the Company and its affiliates in connection therewith. If you are obligated by court order or other legal process to disclose Proprietary Information, you will disclose only the minimum amount of such Proprietary Information as is necessary for you to comply with such court order or other legal process. |
6. | Miscellaneous Provisions. |
(a) | Withholding. All payments (or transfers of property) to you will be subject to tax withholding to the extent required by applicable law. |
(b) | Notices. Unless otherwise provided herein, any notice or other information to be provided to the Company will be delivered by hand or sent by overnight delivery, return receipt requested, to: |
(c) | Nature of Agreement. You and the Company each have been represented by separate counsel and are entering into this Agreement voluntarily with a full understanding of its terms. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring either party by virtue of the authorship of any of the provisions of this Agreement. In making this Agreement, the Parties warrant that they did not rely on any representations or statements other than those expressly contained in this Agreement. |
(d) | Entire Agreement. Except as otherwise herein provided, this Agreement, including all attachments hereto, constitutes the entire agreement between you and the Company regarding the subject matter hereof and supersedes and cancels all prior agreements and understandings between you and the Company regarding these matters. |
(e) | Waivers. No modification or waiver of or amendment to any provision of this Agreement will be effective unless in writing and signed by you and an authorized officer of the Company. A delay or failure by the Company to exercise any right that is the subject of this Agreement will not be construed as a waiver of that right. A waiver of a breach on any one occasion will not be construed as a waiver of any other breach. |
(f) | Governing Law. This Agreement will be interpreted, enforced and governed by the laws of the State of Delaware, without regard to the principles of conflicts of laws. This Agreement will continue in effect until all obligations under it are fulfilled. If any part of this Agreement is held to be void or unenforceable, the remaining provisions shall continue with full force and effect. This Agreement is binding on you and your legal representatives and the Company, its successors or assigns. |
(g) | Counterparts. This Agreement may be executed in any number of counterparts each of which shall be an original, but all of which together shall constitute one instrument. |
(h) | Headings. The headings in this Agreement are for convenience only and shall not affect the interpretation of this Agreement. |
By: | S/ KENNETH R. GARRETT | |
Kenneth R. Garrett Executive Vice President Human Resources | ||
Date: | April 29, 2013 |
S/ D. MICHAEL WILSON | ||
Date: | April 29, 2013 |
Date of Grant | Number of Shares | Exercise Price | Date Vesting Will Occur |
February 17, 2011 | 11,690 | $40.89 | February 17, 2014 |
Date of Grant | Number of Shares | Exercise Price |
February 23, 2006 | 12,108 | $15.64 |
February 15, 2007 | 21,256 | $18.70 |
February 21, 2008 | 18,514 | $27.88 |
February 19, 2009 | 18,180 | $22.22 |
February 18, 2010 | 15,042 | $28.64 |
1. | Consideration. The Executive acknowledges that: (a) the payments, rights and benefits set forth in Section 2 of the Agreement constitute full settlement of all his rights under the Agreement, (b) he has no entitlement under any other severance or similar arrangement maintained by the Company, and (c) except as otherwise provided specifically in this Release, the Company does not and will not have any other liability or obligation to the Executive. The Executive further acknowledges that, in the absence of his execution of this Release, a portion of the benefits and payments specified in Section 2 of the Agreement would not otherwise be due to him. |
2. | Release and Covenant Not to Sue. |
(a) | The Executive hereby fully and forever releases and discharges the Company, and all predecessors and successors, assigns, stockholders, affiliates, subsidiaries, officers, directors, trustees, employees, agents and attorneys, past and present (the Company and each such person or entity is referred to as a “Released Person”) from any and all claims, demands, liens, agreements, contracts, covenants, actions, suits, causes of action, obligations, controversies, debts, costs, expenses, damages, judgments, orders and liabilities, of whatever kind or nature, direct or indirect, in law, equity or otherwise, whether known or unknown, arising on or before the date of this Release, and relating to the Executive’s employment by the Company or the termination thereof (collectively, the “Claims”), including, but not limited to, any Claims for relief or causes of action under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., or any other federal, state or local statute, ordinance or regulation regarding discrimination in employment and any Claims based upon alleged wrongful or retaliatory discharge or breach of contract under any state or federal law. |
(b) | The Executive expressly represents that he has not filed a lawsuit or initiated any other administrative proceeding against a Released Person and that he has not assigned any Claim against a Released Person. The Executive further promises not to initiate a lawsuit or to bring any other Claim against the other arising out of or in any way related to the Executive’s employment by the Company or the termination of that employment. This Release will not prevent the Executive from filing a charge with the Equal Employment Opportunity Commission (or similar state agency) or participating in any investigation conducted by the Equal Employment Opportunity Commission (or similar state agency); provided, however, that any claims by the Executive for personal relief in connection with such a charge or investigation (such as reinstatement or monetary damages) would be barred. |
(c) | The foregoing will not be deemed to release the Company from (i) Claims to enforce Section 2 of the Agreement, (ii) Claims for vested benefits under Section 3.4.2(c)(i) of Part I of the FMC Corporation Employees’ Retirement Program, (iii) Claims for vested benefits under the terms of the FMC Corporation Salaried Employees’ Equivalent Retirement Plan and the FMC Corporation Non-Qualified Savings and Investment Plan, (iv) Claims for indemnification under the Company’s By-Laws, including access to such FMC Directors and Officers Liability Insurance Policies as may be necessary and appropriate to satisfy such indemnification obligations, (v) Claims not released under Section 2(a), above, and (vi) Claims arising after the effective date of this Release. |
3. | Restrictive Covenants. The Executive acknowledges that restrictive covenants contained in Section 5 of the Agreement will survive the termination of his employment. The Executive affirms that those restrictive covenants are reasonable and necessary to protect the legitimate interests of the Company, that he received adequate consideration in exchange for agreeing to those restrictions and that he will abide by those restrictions. |
4. | Non-Disparagement. The Executive agrees not to disparage any Released Person (other than a person whose only affiliation with the Company is as a stockholder of the Company) or otherwise take any action which could reasonably be expected to adversely affect the personal or professional reputation of any Released Person (other than a person whose only affiliation with the Company is as a stockholder of the Company), and the Company, acting through its directors and officers, likewise agrees not to disparage The Executive. |
5. | Cooperation. The Executive further agrees that, subject to reimbursement of his reasonable expenses, he will cooperate in a reasonable manner with the Company and its counsel with respect to any matter (including litigation, investigations, or governmental proceedings) in which the Executive was in any way involved during his employment with the Company. The Executive agrees to render such cooperation in a timely manner on reasonable notice from the Company, provided the Company exercises reasonable efforts to limit and schedule the need for |
6. | Rescission Right. The Executive expressly acknowledges and recites that (a) he has read and understands the terms of this Release in its entirety, (b) he has entered into this Release knowingly and voluntarily, without any duress or coercion; (c) he has been advised orally and is hereby advised in writing to consult with an attorney with respect to this Release before signing it; (d) he was provided 21 calendar days after receipt of the Release to consider its terms before signing it; and (e) he is provided seven calendar days from the date of signing to terminate and revoke this Release, in which case this Release shall be unenforceable, null and void. The Executive may revoke this Release during those seven days by providing written notice of revocation to the Company at the address set forth in the Agreement. If the Executive revokes this Release, he will forfeit the payments, rights and benefits described in Section 2 of the Agreement and will not be entitled to any other severance benefits. |
7. | Challenge. If the Executive violates or challenges the enforceability of any provisions of the Agreement or this Release, no further payments, rights or benefits under Section 2 of the Agreement will be due to him. |
8. | Miscellaneous. |
(a) | Release Binding on Successors. This Release will be binding on the Executive and his executors, representatives, administrators and heirs. |
(b) | Intended Third Party Beneficiaries. This Release will inure to the benefit of the Company, as well as the other Released Persons, each of whom is an intended third party beneficiaries of this Release. |
(c) | Severability. Whenever possible, each provision of this Release will be interpreted in such manner as to be effective and valid under applicable law. However, if any provision of this Release is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provision, and this Release will be reformed, construed and enforced as though the invalid, illegal or unenforceable provision had never been herein contained. |
(d) | Governing Law. This Release shall be governed by, and enforced in accordance with, the laws of the State of Delaware, without regard to the application of the principles of conflicts of laws. |