Exhibit 10.1
FORM OF EMPLOYEE BENEFITS AGREEMENT
BY AND BETWEEN
U.S. BANCORP
AND
▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC.
DATED AS OF
[ ], 2003
TABLE OF CONTENTS
ARTICLE I DEFINITIONS...................................................................................1
1.1 Affiliate.....................................................................................1
1.2 Agreement.....................................................................................1
1.3 Ancillary Agreements..........................................................................1
1.4 Approved Leave of Absence.....................................................................1
1.5 Auditing Party................................................................................1
1.6 Award.........................................................................................2
1.7 Benefit Plan..................................................................................2
1.8 Close of the Distribution Date................................................................2
1.9 COBRA.........................................................................................2
1.10 Code..........................................................................................2
1.11 Committee.....................................................................................2
1.12 Convertible Parent Option.....................................................................2
1.13 Convertible Restricted Stock..................................................................2
1.14 Covered Employees.............................................................................2
1.15 Distribution..................................................................................3
1.16 Distribution Date.............................................................................3
1.17 Distribution Year.............................................................................3
1.18 ERISA.........................................................................................3
1.19 Former Parent Employee........................................................................3
1.20 Former ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employee.................................................................3
1.21 Health and Welfare Plans......................................................................3
1.22 High Performance Option.......................................................................3
1.23 HIPAA.........................................................................................3
1.24 Immediately after the Distribution Date.......................................................3
1.25 Independent Third Party.......................................................................3
1.26 Liabilities...................................................................................3
1.27 Match Date....................................................................................3
1.28 Non-Convertible High Performance Option.......................................................4
1.29 Non-Convertible Parent Option.................................................................4
1.30 Non-parties...................................................................................4
1.31 NYSE..........................................................................................4
1.32 Option........................................................................................4
1.33 Parent........................................................................................4
1.34 Parent Common Stock...........................................................................4
1.35 Parent Employee...............................................................................4
1.36 Parent Entities...............................................................................4
1.37 Parent Executive Benefit Plans................................................................4
1.38 Parent Flexible Benefit Plans.................................................................4
1.39 Parent Long-Term Incentive Plans..............................................................4
1.40 Parent Non-Qualified Retirement Plan..........................................................5
1.41 Parent Non-Qualified Retirement Plan Participant..............................................5
1.42 Parent Opening Stock Value....................................................................5
1.43 Parent Pension Plan...........................................................................5
1.44 Parent Post-Retirement Welfare Benefits Plan..................................................5
1.45 Parent Savings Plan...........................................................................5
1.46 Parent Severance Pay Program..................................................................5
1.47 Parent Stock Value............................................................................5
1.48 Participating Company.........................................................................5
1.49 Person........................................................................................5
1.50 ▇▇▇▇▇ ▇▇▇▇▇▇▇.................................................................................6
1.51 ▇▇▇▇▇ ▇▇▇▇▇▇▇ Business........................................................................6
1.52 ▇▇▇▇▇ ▇▇▇▇▇▇▇ Common Stock....................................................................6
1.53 ▇▇▇▇▇ ▇▇▇▇▇▇▇ Common Stock Value..............................................................6
1.54 ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employee........................................................................6
1.55 ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities........................................................................6
1.56 ▇▇▇▇▇ ▇▇▇▇▇▇▇ Executive Benefit Plans.........................................................6
1.57 ▇▇▇▇▇ ▇▇▇▇▇▇▇ Flexible Benefit Plan...........................................................6
1.58 ▇▇▇▇▇ ▇▇▇▇▇▇▇ Long-Term Incentive Plan........................................................6
1.59 ▇▇▇▇▇ ▇▇▇▇▇▇▇ Non-Qualified Retirement Plan...................................................6
1.60 ▇▇▇▇▇ ▇▇▇▇▇▇▇ Savings Plan....................................................................6
1.61 ▇▇▇▇▇ ▇▇▇▇▇▇▇ Savings Plan Trust..............................................................7
1.62 Restricted Stock..............................................................................7
1.63 Restricted Stock Unit.........................................................................7
1.64 Separation....................................................................................7
1.65 Separation and Distribution Agreement.........................................................7
1.67 Special Convertible High Prformance Option....................................................7
1.68 Special Convertible Parent Option.............................................................7
1.69 Subsidiaries..................................................................................7
1.70 Tax Sharing Agreement.........................................................................7
1.71 Transferred Account Balances..................................................................7
1.72 Transition Date...............................................................................7
1.73 U.S...........................................................................................7
ARTICLE II GENERAL PRINCIPLES............................................................................8
2.1 Employment of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees.........................................................8
2.2 Assumption and Retention of Liabilities; Related Assets.......................................8
2.3 ▇▇▇▇▇ ▇▇▇▇▇▇▇ Participation in Parent Benefit Plans...........................................8
2.4 Service Recognition...........................................................................8
2.5 Approval by Parent as Sole Stockholder........................................................9
ARTICLE III DEFINED CONTRIBUTION AND DEFINED BENEFIT PLANS................................................9
3.1 Savings Plan..................................................................................9
3.2 Company Match.................................................................................9
3.3 Parent Pension Plan..........................................................................10
(a) Retention of Parent Pension Plan......................................................10
(b) Commencement of Pension...............................................................10
(c) Vesting...............................................................................10
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ARTICLE IV HEALTH AND WELFARE PLANS.....................................................................10
4.1 General......................................................................................10
(a) Establishment of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Health and Welfare Plans...............................10
(b) Retention of Sponsorship and Liabilities..............................................11
(c) Certain Specific Claims...............................................................11
4.2 Flexible Benefit Plan........................................................................12
4.3 Workers' Compensation Liabilities............................................................12
4.4 Payroll Taxes and Reporting of Compensation..................................................12
4.5 Parent Post-Retirement Welfare Benefits Plan.................................................12
(a) Retention of Parent Post-Retirement Welfare Benefits Plan.............................12
(b) Assumption of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Post-Retirement Welfare Benefits Plans....................13
4.6 COBRA and HIPAA Compliance...................................................................13
ARTICLE V EXECUTIVE BENEFITS AND OTHER BENEFITS........................................................13
5.1 Assumption of Obligations....................................................................13
5.2 Parent Executive Incentive Plan [and the Annual Incentive Plan]..............................13
(a) ▇▇▇▇▇ ▇▇▇▇▇▇▇ Bonus Awards............................................................13
(b) Parent Bonus Awards...................................................................14
5.3 Parent Long-Term Incentive Plans.............................................................14
(a) Non-Convertible Parent Options........................................................14
(b) Special Convertible Parent Option.....................................................14
(c) Convertible Parent Options............................................................14
(d) Incentive Stock Options; Foreign Grants/Awards........................................15
(e) Other Awards..........................................................................15
(i) Convertible Parent Restricted Stock.............................................15
(ii) Non-Convertible Parent Restricted Stock.........................................15
(iii) Restricted Stock Units..........................................................16
(f) Aggregate Limit ......................................................................16
(g) Miscellaneous Option and Other Award Terms............................................16
(h) Waiting Period for Exercisability of Options..........................................17
(i) Restrictive Covenants.................................................................18
5.4 Savings Clause...............................................................................18
5.5 Registration Requirements....................................................................18
5.6 Parent Non-Qualified Retirement Plans........................................................18
5.7 Severance Plans..............................................................................19
ARTICLE VI GENERAL AND ADMINISTRATIVE...................................................................19
6.1 Sharing of Participant Information...........................................................19
6.2 Reasonable Efforts/Cooperation...............................................................19
6.3 No Third-Party Beneficiaries.................................................................20
6.4 Audit Rights With Respect to Information Provided............................................20
6.5 Fiduciary Matters............................................................................20
6.6 Consent of Third Parties.....................................................................21
ARTICLE VII MISCELLANEOUS................................................................................21
7.1 Effect If Distribution Does Not Occur........................................................21
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7.2 Relationship of Parties......................................................................21
7.3 Affiliates...................................................................................21
7.4 Notices......................................................................................21
7.5 Incorporation of Separation and Distribution Agreement Provisions............................22
SIGNATURES OF THE PARTIES
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EMPLOYEE BENEFITS AGREEMENT
This
EMPLOYEE BENEFITS AGREEMENT, dated as of [ ], 2003 is by and
between U.S. Bancorp, a
Delaware corporation ("PARENT"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇
Companies, a
Delaware corporation ("▇▇▇▇▇ ▇▇▇▇▇▇▇"). Capitalized terms used
herein and not otherwise defined shall have the respective meanings assigned to
them in Article I hereof or assigned to them in the Separation and Distribution
Agreement (as defined below), as applicable.
WHEREAS, the Board of Directors of Parent has determined that it is in
the best interests of Parent and its stockholders to separate Parent's existing
businesses into two independent companies;
WHEREAS, in furtherance of the foregoing, Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇ have
entered into a Separation and Distribution Agreement, dated as of the date
hereof (the "SEPARATION AND DISTRIBUTION AGREEMENT"), and other ancillary
agreements that will govern certain matters relating to the Separation and the
relationship of Parent, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and their respective Subsidiaries
following the Distribution Date; and
WHEREAS, pursuant to the Separation and Distribution Agreement, Parent
and ▇▇▇▇▇ ▇▇▇▇▇▇▇ have agreed to enter into this Agreement for the purpose of
allocating assets, Liabilities and responsibilities with respect to certain
employee compensation and benefit plans and programs between and among them.
NOW, THEREFORE, the parties hereto, intending to be legally bound,
agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
following meanings:
1.1 "AFFILIATE" has the meaning given that term in the Separation and
Distribution Agreement.
1.2 "AGREEMENT" means this
Employee Benefits Agreement, including all the
Schedules hereto.
1.3 "ANCILLARY AGREEMENTS" has the meaning given that term in the
Separation and Distribution Agreement.
1.4 "APPROVED LEAVE OF ABSENCE" means an absence from active service (i)
due to an individual's inability to perform his or her regular job duties by
reason of illness or injury and resulting in eligibility to receive benefits
pursuant to the terms of the Parent Short-Term Disability Program or the Parent
Long-Term Disability Program, or (ii) pursuant to an approved leave policy with
a guaranteed right of reinstatement.
1.5 "AUDITING PARTY" has the meaning set forth in Section 6.4(a).
1.6 "AWARD," when immediately preceded by "Parent," means Parent Restricted
Stock and Parent Restricted Stock Units and, when immediately preceded by "▇▇▇▇▇
▇▇▇▇▇▇▇," means ▇▇▇▇▇ ▇▇▇▇▇▇▇ Restricted Stock and Restricted Stock Units.
1.7 "BENEFIT PLAN" shall mean, with respect to an entity or any of its
Subsidiaries, (a) each "employee welfare benefit plan" (as defined in Section
3(1) of ERISA) and all other employee benefits arrangements, policies or payroll
practices (including, without limitation, severance pay, sick leave, vacation
pay, salary continuation, disability, retirement, deferred compensation, bonus,
stock option or other equity-based compensation, hospitalization, medical
insurance or life insurance) sponsored or maintained by such entity or by any of
its Subsidiaries (or to which such entity or any of its Subsidiaries contributes
or is required to contribute) and (b) all "employee pension benefit plans" (as
defined in Section 3(2) of ERISA), occupational pension plan or arrangement or
other pension arrangements sponsored, maintained or contributed to by such
entity or any of its Subsidiaries (or to which such entity or any of its
Subsidiaries contributes or is required to contribute). When immediately
preceded by "Parent," Benefit Plan means any Benefit Plan sponsored, maintained
or contributed to by Parent or a Parent Entity. When immediately preceded by
"▇▇▇▇▇ ▇▇▇▇▇▇▇," Benefit Plan means any Benefit Plan sponsored, maintained or
contributed to by ▇▇▇▇▇ ▇▇▇▇▇▇▇ or any ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity. The ▇▇▇▇▇ ▇▇▇▇▇▇▇
Benefit Plans in effect prior to the Distribution are listed in Schedule 1.7
hereto.
1.8 "CLOSE OF THE DISTRIBUTION DATE" means 11:59:59 P.M., Eastern Standard
Time or Eastern Daylight Time (whichever shall then be in effect), on the
Distribution Date.
1.9 "COBRA" means the continuation coverage requirements for "group health
plans" under Title X of the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended, and as codified in Code ss. 4980B and ERISA ▇▇.▇▇. 601 through
608.
1.10 "CODE" means the Internal Revenue Code of 1986, as amended, or any
successor federal income tax law. Reference to a specific Code provision also
includes any proposed, temporary or final regulation in force under that
provision.
1.11 "COMMITTEE" has the meaning set forth in Section 5.3(a).
1.12 "CONVERTIBLE PARENT OPTION" means a Parent Option, other than a High
Performance Option, that, as of the Distribution Date, (i) (A) is outstanding
under any Parent Long-Term Incentive Plan, (B) is vested, (C) is held by a
person who is a ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employee, and (D) would by its terms continue to
vest following such employee's termination of employment (1) by Parent other
than for "cause" or "misconduct" or (2) by the optionee, and would remain
exercisable for the remainder of its term or (ii) (A) is outstanding under any
Parent Long-Term Incentive Plan, (B) is vested, (C) is held by a person who is a
▇▇▇▇▇ ▇▇▇▇▇▇▇ Employee, and (D) is an Option that would otherwise be a Special
Convertible Parent Option but for the fact that the optionee is
retirement-eligible as of the Distribution Date.
1.13 "CONVERTIBLE RESTRICTED STOCK" has the meaning set forth in Section
5.3(e)(i).
1.14 "COVERED EMPLOYEES" has the meaning set forth in Section 4.2(i).
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1.15 "DISTRIBUTION" has the meaning given that term in the Separation and
Distribution Agreement.
1.16 "DISTRIBUTION DATE" has the meaning given that term in the Separation
and Distribution Agreement.
1.17 "DISTRIBUTION YEAR" means the calendar year during which the
Distribution Date occurs.
1.18 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended. Reference to a specific provision of ERISA also includes any proposed,
temporary or final regulation in force under that provision.
1.19 "FORMER PARENT EMPLOYEE" means any individual who is a former employee
of Parent or a Parent Entity as of the Distribution Date.
1.20 "FORMER ▇▇▇▇▇ ▇▇▇▇▇▇▇ EMPLOYEE" means any individual who is a former
employee of ▇▇▇▇▇ ▇▇▇▇▇▇▇ or a ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity as of the Distribution Date.
1.21 "HEALTH AND WELFARE PLANS" shall mean any plan, fund or program which
was established or is maintained for the purpose of providing for its
participants or their beneficiaries, through the purchase of insurance or
otherwise, medical, dental, surgical or hospital care or benefits, or benefits
in the event of sickness, accident, disability, death or unemployment, or
vacation benefits, apprenticeship or other training programs or day care
centers, scholarship funds, or prepaid legal services, including any such plan,
fund or program as defined in Section 3(1) of ERISA. When immediately preceded
by "Parent," Health and Welfare Plans means each Health and Welfare Plan that is
a Parent Benefit Plan. When immediately preceded by "▇▇▇▇▇ ▇▇▇▇▇▇▇," Health and
Welfare Plans means each Health and Welfare Plan that is a ▇▇▇▇▇ ▇▇▇▇▇▇▇ Benefit
Plan.
1.22 "HIGH PERFORMANCE OPTION" means a Parent Option that, as of the
Distribution Date, is (i) outstanding under any Parent Long-Term Incentive Plan,
(ii) is held by a person who is a ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employee and (iii) was granted
on the following dates [ ].
1.23 "HIPAA" means the health insurance portability and accountability
requirements for "group health plans" under the Health Insurance Portability and
Accountability Act of 1996, as amended.
1.24 "IMMEDIATELY AFTER THE DISTRIBUTION DATE" means on the first moment of
the day after the Distribution Date.
1.25 "INDEPENDENT THIRD PARTY" has the meaning set forth in Section
5.3(g)(vi) of this Agreement.
1.26 "LIABILITIES" has the meaning given that term in the Separation and
Distribution Agreement.
1.27 "MATCH DATE" has the meaning set forth in Section 3.2.
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1.28 "NON-CONVERTIBLE HIGH PERFORMANCE OPTION" means fifty percent, on a
grant by grant basis, of the shares of Parent Common Stock subject to a High
Performance Option.
1.29 "NON-CONVERTIBLE PARENT OPTION" means (i) a Parent Option outstanding
under any Parent Long-Term Incentive Plan as of the Distribution Date other than
a Convertible Parent Option or a Special Convertible Parent Option and (ii) a
Parent Option that, as of the Distribution Date, is a Non-Convertible High
Performance Option.
1.30 "NON-PARTIES" has the meaning set forth in Section 6.4(b).
1.31 "NYSE" means the New York Stock Exchange, Inc.
1.32 "OPTION," when immediately preceded by "Parent," means an option
(either nonqualified or incentive) to purchase shares of Parent Common Stock
pursuant to a Parent Long-Term Incentive Plan. When immediately preceded by
"▇▇▇▇▇ ▇▇▇▇▇▇▇," Option means an option (either nonqualified or incentive) to
purchase shares of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Common Stock pursuant to the ▇▇▇▇▇ ▇▇▇▇▇▇▇
Long-Term Incentive Plan.
1.33 "PARENT" is defined in the preamble to this Agreement.
1.34 "PARENT COMMON STOCK" has the meaning set forth in the Separation and
Distribution Agreement.
1.35 "PARENT EMPLOYEE" means any individual who, immediately prior to the
Close of the Distribution Date, is either actively employed by, or then on
Approved Leave of Absence from, any Parent Entity.
1.36 "PARENT ENTITIES" means the members of the Parent Group, as defined in
the Separation and Distribution Agreement, and their respective Subsidiaries and
Affiliates, excluding any business or operations (whether current or historical,
regardless of whether discontinued or sold) that are included in the ▇▇▇▇▇
▇▇▇▇▇▇▇ Business.
1.37 "PARENT EXECUTIVE BENEFIT PLANS" means the executive benefit and
nonqualified plans, programs, and arrangements established, sponsored,
maintained, or agreed upon, by any Parent Entity for the benefit of employees
and former employees of any Parent Entity before the Close of the Distribution
Date.
1.38 "PARENT FLEXIBLE BENEFIT PLANS" means the Parent Flexible Benefit
Plan, as in effect as of the time relevant to the applicable provision of this
Agreement.
1.39 "PARENT LONG-TERM INCENTIVE PLANS" means any of the U.S. Bancorp 2001
Stock Incentive Plan, the U.S. Bancorp 2001 Employee Stock Incentive Plan, the
U.S. Bancorp 1999 Stock Incentive Plan, the Firstar Corporation 1999 Employee
Stock Incentive Plan, the Firstar Corporation 1998 Employee Stock Incentive
Plan, the U.S. Bancorp 1998 Executive Stock Incentive Plan, the U.S. Bancorp
1997 Stock Incentive Plan, the Star Banc Corporation 1996 Starshare Stock
Incentive Plan for Employees, the 1991 Performance and Equity Incentive Plan of
the former U.S. Bancorp, the ▇▇▇▇▇ ▇▇▇▇▇▇▇ 1993 Omnibus Stock Plan, the U.S.
Bancorp 1991
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Executive Stock Incentive Plan and any other stock incentive plan of Parent, all
as in effect as of the time relevant to the applicable provisions of this
Agreement.
1.40 "PARENT NON-QUALIFIED RETIREMENT PLAN" means the U.S. Bancorp
Non-Qualified Retirement Plan in effect as of the time relevant to the
applicable provision of this Agreement.
1.41 "PARENT NON-QUALIFIED RETIREMENT PLAN PARTICIPANT" means any
individual who has an accrued balance in the Parent Non-Qualified Retirement
Plan as of the Distribution Date.
1.42 "PARENT OPENING STOCK VALUE" means the opening per-share price of
Parent Common Stock as listed on the NYSE as of the opening of trading on the
first trading day following the Distribution Date; PROVIDED, HOWEVER, that if
the Distribution occurs at a time when the NYSE is open for trading, Parent
Opening Stock Value shall mean the price at which Parent Common Stock trades as
of the moment immediately after the Distribution; and PROVIDED, FURTHER, that if
the Distribution occurs prior to opening of trading on the NYSE on the
Distribution Date, the Parent Opening Stock Value shall mean the price at which
Parent Common Stock first trades on the Distribution Date.
1.43 "PARENT PENSION PLAN" means the U.S. Bancorp Pension Plan in effect as
of the time relevant to the applicable provision of this Agreement.
1.44 "PARENT POST-RETIREMENT WELFARE BENEFITS PLAN" means the Health and
Welfare Plan of Parent providing medical, dental or death benefits for retirees.
1.45 "PARENT SAVINGS PLAN" means the U.S. Bancorp 401(k) Savings Plan as in
effect as of the time relevant to the applicable provision of this Agreement.
1.46 "PARENT SEVERANCE PAY PROGRAM" means the U.S. Bancorp Severance Pay
Program and the Parent Severance Pay Excess Plan, including any severance
benefits payable under the U.S. Bancorp Comprehensive Welfare Benefit Plan or
any component Benefit Plans thereof such as the U.S. Bancorp Comprehensive
Welfare Benefit Middle Management Change in Control Excess Plan, each as in
effect as of the time relevant to the applicable provision of this Agreement.
1.47 "PARENT STOCK VALUE" means the closing per-share price of the Parent
Common Stock trading "regular way with due bills" as listed on the NYSE as of
4:00 P.M., Eastern Standard Time or Eastern Daylight Time (whichever shall then
be in effect) on the trading day immediately preceding the Distribution Date.
1.48 "PARTICIPATING COMPANY" means (a) Parent, (b) any Person (other than
an individual) that Parent has approved for participation in, and which is
participating in, a plan sponsored by any Parent Entity, and (c) any Person
(other than an individual) which, by the terms of such a plan, participates in
such plan or any employees of which, by the terms of such plan, participate in
or are covered by such plan.
1.49 "PERSON" has the meaning given that term in the Separation and
Distribution Agreement.
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1.50 "▇▇▇▇▇ ▇▇▇▇▇▇▇" is defined in the preamble to this Agreement.
1.51 "▇▇▇▇▇ ▇▇▇▇▇▇▇ BUSINESS" has the meaning given to that term in the
Separation and Distribution Agreement.
1.52 "▇▇▇▇▇ ▇▇▇▇▇▇▇ COMMON STOCK" means the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Common Stock as
defined in the Separation and Distribution Agreement.
1.53 "▇▇▇▇▇ ▇▇▇▇▇▇▇ COMMON STOCK VALUE" means the excess of the Parent
Stock Value over the Parent Ex-Dividend Closing Stock Value. For purposes of
this Section 1.46, the "Parent Ex-Dividend Closing Stock Value" means the
closing per-share price of the Parent Common Stock trading "ex-dividend" as
listed on the NYSE as of 4:00 P.M., Eastern Standard Time or Eastern Daylight
Time (whichever shall then be in effect) on the Dividend Date; PROVIDED,
HOWEVER, that if the Dividend occurs at a time when the NYSE is open for
trading, Parent Ex-Dividend Closing Stock Value shall mean the price at which
Parent Common Stock trading "ex-dividend last trades immediately before the
Dividend; PROVIDED, FURTHER, that if the Dividend occurs prior to the first
trade on the Dividend Date, the Parent Ex-Dividend Closing Stock Value shall
mean the price at which Parent Common Stock trading "ex-distribution" or "when
issued (to give effect to the Dividend)" last trades on the trading day
immediately preceding the Distribution Date.
1.54 "▇▇▇▇▇ ▇▇▇▇▇▇▇ EMPLOYEE" means any individual who, immediately prior
to the Distribution, is either actively employed by, or then on Approved Leave
of Absence from, a ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity.
1.55 "▇▇▇▇▇ ▇▇▇▇▇▇▇ ENTITIES" means the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Group as defined in
the Separation and Distribution Agreement and any business or operations
(whether current or historical regardless of whether discontinued or sold)
included in the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Business.
1.56 "▇▇▇▇▇ ▇▇▇▇▇▇▇ EXECUTIVE BENEFIT PLANS" means the executive benefit
and nonqualified plans, programs, and arrangements established, sponsored,
maintained, or agreed upon, by any ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity for the benefit of
employees and former employees of any ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity before the Close of
the Distribution Date.
1.57 "▇▇▇▇▇ ▇▇▇▇▇▇▇ FLEXIBLE BENEFIT PLAN" means the flexible benefit plan
to be established by ▇▇▇▇▇ ▇▇▇▇▇▇▇ pursuant to Section 4.2 of this Agreement as
in effect as of the time relevant to the applicable provision of this agreement.
1.58 "▇▇▇▇▇ ▇▇▇▇▇▇▇ LONG-TERM INCENTIVE PLAN" means the long-term incentive
plan or program to be established by ▇▇▇▇▇ ▇▇▇▇▇▇▇, effective immediately prior
to the Distribution Date, in connection with the treatment of Awards as
described in Article V.
1.59 . "▇▇▇▇▇ ▇▇▇▇▇▇▇ NON-QUALIFIED RETIREMENT PLAN" has the meaning set
forth in Section 5.6.
1.60 "▇▇▇▇▇ ▇▇▇▇▇▇▇ SAVINGS PLAN" means the 401(k) and profit sharing plan
to be established by ▇▇▇▇▇ ▇▇▇▇▇▇▇ pursuant to Section 3.1 of this Agreement, as
in effect as of the time relevant to the applicable provision of this agreement.
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1.61 "▇▇▇▇▇ ▇▇▇▇▇▇▇ SAVINGS PLAN TRUST" means a trust relating to the ▇▇▇▇▇
▇▇▇▇▇▇▇ Savings Plan intended to qualify under Section 401(a) and be exempt
under Section 501(a) of the Code.
1.62 "RESTRICTED STOCK," when immediately preceded by "Parent," means
shares of Parent Common Stock issued under a Parent Long-Term Incentive Plan
subject to forfeiture in the event that certain terms and conditions are not
satisfied and, when immediately preceded by "▇▇▇▇▇ ▇▇▇▇▇▇▇," means shares of
▇▇▇▇▇ ▇▇▇▇▇▇▇ Common Stock issued under the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Long-Term Incentive
Plan subject to forfeiture in the event that certain terms and conditions are
not satisfied.
1.63 "RESTRICTED STOCK UNIT" when immediately preceded by "Parent," means
units representing hypothetical shares of Parent Common Stock issued under a
Parent Benefit Plan and, when immediately preceded by "▇▇▇▇▇ ▇▇▇▇▇▇▇," means
units representing hypothetical shares of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Common Stock issued
under the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Long-Term Incentive Plan.
1.64 "SEPARATION" has the meaning given that term in the Separation and
Distribution Agreement.
1.65 "SEPARATION AND DISTRIBUTION AGREEMENT" is defined in the preamble to
this Agreement.
1.66 "SPECIAL CONVERTIBLE HIGH PERFORMANCE OPTION" means each portion of a
High Performance Option, on a grant by grant basis, which is not a
Non-Convertible High Performance Option.
1.67 "SPECIAL CONVERTIBLE PARENT OPTION" means (i) a Parent Option that, as
of the Distribution Date, (A) is outstanding under any Parent Long-Term
Incentive Plan, (B) is held by a person who is a ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employee and (C)
is an Option that would terminate within 90 days following a termination of the
optionee's employment other than for "gross and willful misconduct" and (ii) a
Parent Option that, as of the Distribution Date, is a Special Convertible High
Performance Option.
1.68 "SUBSIDIARIES" has the meaning given that term in the Separation and
Distribution Agreement.
1.69 "TAX SHARING AGREEMENT" means the Tax Sharing Agreement entered into
as of the date hereof between Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇.
1.70 "TRANSFERRED ACCOUNT BALANCES" has the meaning set forth in Section
4.2(i).
1.71 "TRANSITION DATE" has the meaning set forth in Section 4.1(a).
1.72 "U.S." means the ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ and the District of
Columbia.
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ARTICLE II
GENERAL PRINCIPLES
2.1 EMPLOYMENT OF ▇▇▇▇▇ ▇▇▇▇▇▇▇ EMPLOYEES. All ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees
shall continue to be employees of ▇▇▇▇▇ ▇▇▇▇▇▇▇ or another ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity,
as the case may be, immediately after the Distribution.
2.2 ASSUMPTION AND RETENTION OF LIABILITIES; RELATED ASSETS.
(a) As of the Distribution Date, except as expressly provided in this
Agreement, the Parent Entities shall assume or retain and Parent hereby agrees
to pay, perform, fulfill and discharge, in due course in full (i) all
Liabilities under all Parent Benefit Plans, (ii) all Liabilities with respect to
the employment or termination of employment of all Parent Employees, Former
Parent Employees and their dependents and beneficiaries, and other service
providers (including any individual who is, or was, an independent contractor,
temporary employee, temporary service worker, consultant, freelancer, agency
employee, leased employee, on-call worker, incidental worker, or nonpayroll
worker of any Parent Entity or in any other employment, non-employment, or
retainer arrangement, or relationship with any Parent Entity), in each case to
the extent arising in connection with or as a result of employment with or the
performance of services to any Parent Entity, and (iii) any other Liabilities
expressly assigned to Parent under this Agreement. All assets held in trust to
fund the Parent Benefit Plans and all insurance policies funding the Parent
Benefit Plans shall be Parent Assets (as defined in the Separation and
Distribution Agreement), except to the extent specifically provided otherwise in
this Agreement.
(b) From and after the Distribution Date, except as expressly provided
in this Agreement, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities shall assume or
retain, as applicable, and ▇▇▇▇▇ ▇▇▇▇▇▇▇ hereby agrees to pay, perform, fulfill
and discharge, (i) all Liabilities under all ▇▇▇▇▇ ▇▇▇▇▇▇▇ Benefit Plans, (ii)
all Liabilities with respect to the employment or termination of employment of
all ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees and other service providers (including any
individual who is, or was, an independent contractor, temporary employee,
temporary service worker, consultant, freelancer, agency employee, leased
employee, on-call worker, incidental worker, or nonpayroll worker of ▇▇▇▇▇
▇▇▇▇▇▇▇ or a ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity or in any other employment, non-employment, or
retainer arrangement, or relationship with ▇▇▇▇▇ ▇▇▇▇▇▇▇ or a ▇▇▇▇▇ ▇▇▇▇▇▇▇
Entity), and their dependents and beneficiaries, and (iii) all Liabilities that
are expressly assigned to ▇▇▇▇▇ ▇▇▇▇▇▇▇ or any ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity under this
Agreement.
2.3 ▇▇▇▇▇ ▇▇▇▇▇▇▇ PARTICIPATION IN PARENT BENEFIT PLANS. Except as
expressly provided in this Agreement, effective as of the Close of the
Distribution Date, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and each other ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity shall cease
to be a Participating Company in any Parent Benefit Plan, and Parent and ▇▇▇▇▇
▇▇▇▇▇▇▇ shall take all necessary action before the Distribution Date to
effectuate such cessation as a Participating Company.
2.4 SERVICE RECOGNITION. ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall cause the ▇▇▇▇▇ ▇▇▇▇▇▇▇
Benefit Plans with respect to which service is a relevant factor to credit ▇▇▇▇▇
▇▇▇▇▇▇▇ Employees who are employed by ▇▇▇▇▇ ▇▇▇▇▇▇▇ immediately following the
Distribution with service before the Distribution Date recognized by Parent
under the terms of Parent Benefit Plans with respect to
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which service is a relevant factor, except (a) to the extent duplication of
benefits would result and (b) for purposes of benefit accruals under any defined
benefit pension plan.
2.5 APPROVAL BY PARENT AS SOLE STOCKHOLDER. Prior to the Distribution,
Parent shall cause ▇▇▇▇▇ ▇▇▇▇▇▇▇ to adopt the ▇▇▇▇▇ ▇▇▇▇▇▇▇ 2003 Long-Term
Incentive Plan substantially in the form attached hereto as EXHIBIT A.
ARTICLE III
DEFINED CONTRIBUTION AND DEFINED BENEFIT PLANS
3.1 SAVINGS PLAN. As soon as practicable (and in no event later than 30
days) after the Distribution Date, ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall establish the ▇▇▇▇▇
▇▇▇▇▇▇▇ Savings Plan and the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Savings Trust. As soon as practical
following the establishment of the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Savings Plan and the ▇▇▇▇▇
▇▇▇▇▇▇▇ Savings Trust, Parent shall cause the accounts (including any
outstanding loan balances) of the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees who elect a transfer
under the Parent Savings Plan to be transferred to the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Savings
Plan and the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Savings Trust in cash or such other assets as
mutually agreed by Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall cause the
▇▇▇▇▇ ▇▇▇▇▇▇▇ Savings Plan to assume and be solely responsible for all
Liabilities under the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Savings Plan to or relating to ▇▇▇▇▇ ▇▇▇▇▇▇▇
Employees who elect a transfer of their accounts (to the extent assets related
to those accounts are transferred from the Parent Savings Plan). ▇▇▇▇▇ ▇▇▇▇▇▇▇
will cause the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Savings Plan to accept direct and indirect
rollovers from the Parent Savings Plan of any account balances of such ▇▇▇▇▇
▇▇▇▇▇▇▇ Employees in accordance with the applicable provisions of the Code.
Notwithstanding the foregoing, the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Savings Plan shall not be
required to accept a rollover of any Parent Common Stock that is held in the
accounts of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees. Any outstanding participant loans to ▇▇▇▇▇
▇▇▇▇▇▇▇ Employees who elect a transfer under the Parent Savings Plan of their
account to the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Savings Plan shall be transferred to the ▇▇▇▇▇
▇▇▇▇▇▇▇ Savings Plan in kind. Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇ agree to cooperate in
making all appropriate filings and taking all reasonable actions required to
implement the provisions of this Section 3.1; PROVIDED that ▇▇▇▇▇ ▇▇▇▇▇▇▇
acknowledges that it will be responsible for complying with any requirements and
applying for any determination letters with respect to the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Savings
Plan.
3.2 COMPANY MATCH. Prior to the Distribution, Parent shall amend the Parent
Savings Plan to provide for the making of matching contributions under the
Parent Savings Plan to ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees for contributions made to the
Parent Savings Plan by such ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees on or prior to the
Distribution Date. As soon as possible following the Distribution Date (the
"MATCH DATE"), Parent shall, to the extent (a) permissible under Treasury
regulations and (b) such contributions are deemed to be qualified contributions,
pursuant to compliance testing of the Parent Savings Plan, contribute to
accounts of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees under the Parent Savings Plan all matching
contributions, if any, due to the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees who participate in the
Parent Savings Plan through the Distribution Date pursuant to the terms and
conditions of the Parent Savings Plan. As soon as practicable following the end
of the year in which the Distribution Date occurs, ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall, to the
extent (a) permissible under Treasury regulations and (b) such contributions are
deemed to be qualified contributions, pursuant to compliance testing of the
▇▇▇▇▇ ▇▇▇▇▇▇▇ Savings Plan, contribute to the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Savings Plan all
matching contributions, if any, due under the terms and conditions of the Piper
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Jaffray Savings Plan to the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees who participate in
the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Savings Plan from the Distribution Date through the end of
the year in which the Distribution Date occurs.
3.3 PARENT PENSION PLAN.
(a) RETENTION OF PARENT PENSION PLAN. Effective as of the Close of the
Distribution Date, Parent shall retain:
(i) sponsorship of the Parent Pension Plan and its related trust
and any other trust or other funding arrangement established or maintained with
respect to such plan, or any assets held as of the Distribution Date with
respect to such plan; and
(ii) all Liabilities relating to, arising out of or resulting
from claims incurred by or on behalf of any individuals with respect to benefits
under the Parent Pension Plan.
(b) COMMENCEMENT OF PENSION. Effective as of the Close of the
Distribution Date, each ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employee who is a participant in the
Parent Pension Plan shall be deemed to have terminated employment with Parent
and, to the extent vested in his or her benefit under the plan, shall be
eligible to request distribution of his or her pension in accordance with the
terms of such plan.
(c) VESTING. Following the Close of the Distribution Date, each ▇▇▇▇▇
▇▇▇▇▇▇▇ Employee who is a participant in the Parent Pension Plan as of
immediately prior to the Distribution Date and not vested in his or her benefit
under the Parent Pension Plan as of the Distribution Date shall continue to vest
in his or her benefit under the Parent Pension Plan for so long as such ▇▇▇▇▇
▇▇▇▇▇▇▇ Employee remains employed with ▇▇▇▇▇ ▇▇▇▇▇▇▇ or a ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity,
but upon termination of such employment such ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employee's benefit
shall no longer continue to vest. ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall notify Parent on a
quarterly basis at the end of each quarter following the Distribution Date of
any participant in the Parent Pension Plan who is not vested in his or her
benefit under the Parent Pension Plan who has terminated employment with ▇▇▇▇▇
▇▇▇▇▇▇▇ and the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities.
ARTICLE IV
HEALTH AND WELFARE PLANS
4.1 GENERAL.
(a) ESTABLISHMENT OF ▇▇▇▇▇ ▇▇▇▇▇▇▇ HEALTH AND WELFARE PLANS. Effective
as of January 1, 2004 (the "TRANSITION DATE"), ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall adopt Health
and Welfare Plans for the benefit of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees, and ▇▇▇▇▇ ▇▇▇▇▇▇▇
shall be responsible for all Liabilities relating to, arising out of or
resulting from health and welfare coverage or claims incurred by or on behalf of
▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees or their covered dependents under the ▇▇▇▇▇ ▇▇▇▇▇▇▇
Health and Welfare Plans on or after the Transition Date.
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(b) RETENTION OF SPONSORSHIP AND LIABILITIES. As of immediately prior
to the Transition Date, Parent shall retain:
(i) sponsorship of all Parent Health and Welfare Plans and any
trust or other funding arrangement established or maintained with respect to
such plans, including any "voluntary employee's beneficiary association", or any
assets held as of the Transition Date with respect to such plans;
(ii) all Liabilities relating to, arising out of, or resulting
from health and welfare coverage or claims incurred by or on behalf of Parent
Employees, Former Parent Employees, ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees and Former ▇▇▇▇▇
▇▇▇▇▇▇▇ Employees, or their covered dependents under the Parent Health and
Welfare Plans on or before the Transition Date; and
(iii) except as provided in Section 4.1(c), all Liabilities
relating to health and welfare coverage or claims incurred by or on behalf of
Parent Employees, Former Parent Employees and Former ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees or
their covered dependents on or after the Transition Date under the Parent Health
and Welfare Plans.
Except as provided in Section 4.1(c), Parent shall not assume any Liability
relating to health and welfare claims incurred by or on behalf of ▇▇▇▇▇ ▇▇▇▇▇▇▇
Employees or their covered dependents on or after the Transition Date, and such
claims shall be satisfied pursuant to Section 4.1(a). Except as provided in
Section 4.1(c), a claim or Liability (1) for medical, dental, vision and/or
prescription drug benefits shall be deemed to be incurred upon the rendering of
health services giving rise to the obligation to pay such benefits; (2) for life
insurance and accidental death and dismemberment and business travel accident
insurance benefits and workers' compensation benefits shall be deemed to be
incurred upon the occurrence of the event giving rise to the entitlement to such
benefits; (3) for salary continuation or other disability benefits shall be
deemed to be incurred upon the effective date of an individual's disability
giving rise to the entitlement to such benefits; and (4) for a period of
continuous hospitalization shall be deemed to be incurred on the date of
admission to the hospital.
(c) CERTAIN SPECIFIC CLAIMS. Parent shall be responsible for all
Liabilities under the applicable Parent Health and Welfare Plan that relate to,
arise out of or result from any period of continuous hospitalization of a ▇▇▇▇▇
▇▇▇▇▇▇▇ Employee or Former ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employee or his or her covered
dependent that begins before the Transition Date under a Parent Health and
Welfare Plan and continues after the Transition Date; PROVIDED, HOWEVER, that
Parent shall not be responsible for Liabilities in excess of the benefits
otherwise provided by the terms of the respective plans. Parent also shall be
responsible for all Liabilities under the applicable Parent Health and Welfare
Plan that relate to, arise out of or result from any denture work, bridge work,
crown installation or root canal therapy for a ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employee, Former
▇▇▇▇▇ ▇▇▇▇▇▇▇ Employee or his or her covered dependent for which preparatory
dental services have been rendered under a Parent Health and Welfare Plan on or
before the Transition Date and such dental treatment continues after the
Transition Date, PROVIDED that such dental treatment is concluded within
allowable time limitations under the applicable Parent Health and Welfare Plan.
Coverage for any such hospitalization or dental services shall be provided after
the Transition Date without interruption under the appropriate Parent Health and
Welfare Plan until
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such hospitalization or treatment for such condition is concluded or
discontinued subject to applicable plan rules and limitations.
4.2 FLEXIBLE BENEFIT PLAN. Parent shall be responsible for all Liabilities
of the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees who are participants in the Parent Flexible
Benefit Plan (the "COVERED EMPLOYEES") under the health care reimbursement
program, the transit and parking reimbursement program and the dependent care
reimbursement program of the Parent Flexible Benefit Plan for claims incurred at
any time during the 2003 plan year of the Parent Flexible Benefit Plan and
submitted to the Parent in accordance with the terms and conditions of the
Parent Flexible Benefit Plan.
4.3 WORKERS' COMPENSATION LIABILITIES. Except as provided below, all
workers' compensation Liabilities relating to, arising out of, or resulting from
any claim by a Parent Employee, Former Parent Employee, ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employee
and Former ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employee that results from an accident occurring, or
from an occupational disease which becomes manifest, before the Close of the
Distribution Date shall be retained by Parent; provided, however, that all
amounts payable by Parent relating to, arising out of or resulting from any such
claim by a ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employee shall be deemed to be a ▇▇▇▇▇ ▇▇▇▇▇▇▇
Liability for purposes of the Insurance Matters Agreement and shall be paid by
Parent or ▇▇▇▇▇ ▇▇▇▇▇▇▇ as set forth in the Insurance Matters Agreement. All
workers' compensation Liabilities relating to, arising out of, or resulting from
any claim by a Parent Employee, Former Parent Employee or Former ▇▇▇▇▇ ▇▇▇▇▇▇▇
Employee that results from an accident occurring, or from an occupational
disease which becomes manifest, on or after the Distribution Date shall be
retained by Parent. All workers' compensation Liabilities relating to, arising
out of, or resulting from any claim by a ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employee that results
from an accident occurring, or from an occupational disease which becomes
manifest, on or after the Distribution Date shall be retained by ▇▇▇▇▇ ▇▇▇▇▇▇▇.
For purposes of this Agreement, a compensable injury shall be deemed to be
sustained upon the occurrence of the event giving rise to eligibility for
workers' compensation benefits or an occupational disease becomes manifest, as
the case may be. Parent, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and the other ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities
shall cooperate with respect to any notification to appropriate governmental
agencies of the Distribution and the issuance of new, or the transfer of
existing, workers' compensation insurance policies and claims handling
contracts.
4.4 PAYROLL TAXES AND REPORTING OF COMPENSATION. Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇
shall, and shall cause the other Parent Entities and the other ▇▇▇▇▇ ▇▇▇▇▇▇▇
Entities to, respectively, take such action as may be reasonably necessary or
appropriate in order to minimize Liabilities related to payroll taxes after the
Distribution Date. Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall, and shall cause the other
Parent Entities and the other ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities to, respectively, each bear
its responsibility for payroll tax obligations and for the proper reporting to
the appropriate governmental authorities of compensation earned by their
respective employees after the Close of the Distribution Date, including
compensation related to the exercise of Options.
4.5 PARENT POST-RETIREMENT WELFARE BENEFITS PLAN.
(a) RETENTION OF PARENT POST-RETIREMENT WELFARE BENEFITS PLAN. As of
the Distribution Date, Parent shall retain (i) sponsorship of all Parent
Post-Retirement Welfare Benefits Plans and any trust or other funding
arrangement established or maintained with respect
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to such plans, or any assets held as of the Distribution Date with respect to
such plans and (ii) all Liabilities relating to, arising out of, or resulting
from retiree health and welfare coverage or claims incurred by or on behalf
of Parent Employees, Former Parent Employees, Former ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees
or their covered dependents under the Parent Post-Retirement Welfare Benefits
Plans. Parent shall not assume any Liability relating to post-retirement
welfare claims incurred by or on behalf of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees or their
covered dependents after the Distribution Date, and such claims shall be
satisfied by ▇▇▇▇▇ ▇▇▇▇▇▇▇ pursuant to Section 4.5(b)
(b) ASSUMPTION OF ▇▇▇▇▇ ▇▇▇▇▇▇▇ POST-RETIREMENT WELFARE BENEFITS
PLANS. Effective as of the Distribution Date, (i) ▇▇▇▇▇ ▇▇▇▇▇▇▇ may, in its sole
discretion, adopt Post-Retirement Welfare Benefits Plans for the benefit of
▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees, and (ii) ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall be responsible for all
Liabilities relating to, arising out of or resulting from health and welfare
coverage or claims incurred by or on behalf of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees or their
covered dependents under the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Post-Retirement Welfare Benefits
Plans.
4.6 COBRA AND HIPAA COMPLIANCE. Parent shall be responsible for
administering compliance with the health care continuation requirements of
COBRA, the certificate of creditable coverage requirements of HIPAA, and the
corresponding provisions of the Parent Health and Welfare Plans with respect to
▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees and their covered dependents who incur a COBRA
qualifying event or loss of coverage under the Parent Health and Welfare Plans
at any time on or before December 31, 2003. Effective on the Transition Date,
▇▇▇▇▇ ▇▇▇▇▇▇▇ or another ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity shall be responsible for
administering compliance with the health care continuation requirements of
COBRA, the certificate of creditable coverage requirements of HIPAA, and the
corresponding provisions of the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Health and Welfare Plans with
respect to ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees and their covered dependents who incur a
COBRA qualifying event or loss of coverage under the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Health and
Welfare Plans at any time after December 31, 2003. The parties hereto agree that
the consummation of the transactions contemplated by this Agreement and the
Separation Agreement shall not constitute a COBRA qualifying event for any
purpose of COBRA.
ARTICLE V
EXECUTIVE BENEFITS AND OTHER BENEFITS
5.1 ASSUMPTION OF OBLIGATIONS. Except as provided in this Agreement,
effective as of the Distribution Time, ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall assume and be solely
responsible for all Liabilities to or relating to ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees under
all Parent Executive Benefit Plans and ▇▇▇▇▇ ▇▇▇▇▇▇▇ Executive Benefit Plans.
None of the transactions contemplated by the Separation and Distribution
Agreement or any of the Ancillary Agreements, including, without limitation,
this Agreement, constitutes a change in control for purposes of any Employee
Benefit Plan.
5.2 PARENT EXECUTIVE INCENTIVE PLAN AND THE ANNUAL INCENTIVE PLAN.
(a) ▇▇▇▇▇ ▇▇▇▇▇▇▇ BONUS AWARDS. ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall be responsible for
determining all bonus awards that would otherwise be payable under the U.S.
Bancorp Executive Incentive Plan and the U.S. Bancorp Annual Incentive Plan to
▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees for the Distribution Year. ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall also
determine for ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees (i) the extent
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to which established performance criteria (as interpreted by ▇▇▇▇▇ ▇▇▇▇▇▇▇, in
its sole discretion) have been met, and (ii) the payment level for each ▇▇▇▇▇
▇▇▇▇▇▇▇ Employee. ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall assume all Liabilities with respect to any
such bonus awards payable to ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees for the Distribution Year
and thereafter.
(b) PARENT BONUS AWARDS. Parent shall be responsible for determining
all bonus awards that would otherwise be payable under the U.S. Bancorp
Executive Incentive Plan and the U.S. Bancorp Annual Incentive Plan to Parent
Employees for the Distribution Year. Parent shall also determine for Parent
Employees (i) the extent to which established performance criteria have been
met, and (ii) the payment level for each such Parent Employee. Parent shall
retain all Liabilities with respect to any such bonus awards payable to Parent
Employees for the Distribution Year and thereafter.
5.3 PARENT LONG-TERM INCENTIVE PLANS. Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall use
their reasonable best efforts to take all actions necessary or appropriate so
that each outstanding Option and Award granted under any Parent Long-Term
Incentive Plan held by any individual shall be adjusted as set forth in this
Article V.
(a) NON-CONVERTIBLE PARENT OPTIONS. As determined by the Compensation
Committee of the Parent Board of Directors (the "COMMITTEE") in its sole
discretion pursuant to its authority under any of the Parent Long-Term Incentive
Plans, each Non-Convertible Parent Option shall be subject to the same terms and
conditions after the Distribution as the terms and conditions applicable to such
Non-Convertible Parent Option immediately prior to the Distribution; PROVIDED,
HOWEVER, that from and after the Close of the Distribution (i) the number of
shares of Parent Common Stock subject to such Non-Convertible Parent Option,
rounded to the nearest whole share, shall be equal to the product of (x) the
number of shares of Parent Common Stock subject to such Non-Convertible Parent
Option immediately prior to the Distribution Date and (y) the quotient obtained
by dividing the Parent Stock Value by the Parent Opening Stock Value and (ii)
the exercise price of such Non-Convertible Parent Option, rounded to the nearest
whole cent, shall be equal to the quotient obtained by dividing (x) the exercise
price of such Non-Convertible Parent Option immediately prior to the
Distribution by (y) the quotient obtained by dividing the Parent Stock Value by
the Parent Opening Stock Value.
(b) SPECIAL CONVERTIBLE PARENT OPTION. As determined by the Committee
in its sole discretion pursuant to its authority under any of the Parent
Long-Term Incentive Plans, each Special Convertible Parent Option shall be
converted at the time of the Distribution into a ▇▇▇▇▇ ▇▇▇▇▇▇▇ Option, which
shall be granted pursuant to the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Long-Term Incentive Plan and
shall have an aggregate fair value equal to the Black-Scholes value of the
Special Convertible Parent Option as of the last trading date prior to the
Distribution Date (as such values are determined in the sole discretion of the
Committee, whose determination, notwithstanding anything herein to the contrary,
shall be final, binding and conclusive for all purposes under the applicable
Parent Long-Term Incentive Plan), assuming for this purpose that the remaining
life of the Convertible Parent Option is the remaining contractual life of such
option and subject to such other terms and conditions as the Committee may
specify.
(c) CONVERTIBLE PARENT OPTIONS. As determined by the Committee in its
sole discretion pursuant to its authority under any of the Parent Long-Term
Incentive Plans, each
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Convertible Parent Option shall be converted at the time of the Distribution
into a ▇▇▇▇▇ ▇▇▇▇▇▇▇ Option, which shall be granted pursuant to the ▇▇▇▇▇
▇▇▇▇▇▇▇ Long-Term Incentive Plan and shall have a Black-Scholes value equal to
the Black-Scholes value of the Convertible Parent Option as of the last trading
date prior to the Distribution Date (as such values are determined in the sole
discretion of the Committee, whose determination, notwithstanding anything
herein to the contrary, shall be final, binding and conclusive for all purposes
under the applicable Parent Long-Term Incentive Plan), assuming for this purpose
that the remaining life of the Convertible Parent Option is the remaining
contractual life of such option and subject to such other terms and conditions
as the Committee may specify.
(d) INCENTIVE STOCK OPTIONS; FOREIGN GRANTS/AWARDS. To the extent that
any of the Parent Options described in Section 5.3(a), 5.3(b) or 5.3(c) are
"incentive stock options," Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall use their commercially
reasonable efforts to preserve, at and after the Distribution, the value and tax
treatment accorded to such incentive stock options, and, to the extent that the
Parent Awards described in Section 5.3(e) below or any of the Parent Options
described in Section 5.3(a), 5.3(b) or 5.3(c) are granted to non-U.S. employees
under any domestic or foreign equity-based incentive program sponsored by a
Parent Entity, Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall use their commercially reasonable
efforts to preserve, at and after the Distribution, the value and tax treatment
accorded to such Parent Options and such Parent Awards granted to non-U.S.
employees under any domestic or foreign equity-based incentive program sponsored
by a Parent Entity. The parties hereby delegate to the Parent Executive Vice
President-Human Resources, for periods before the Distribution Date, the
authority to determine an appropriate methodology for adjusting such grants or
awards in a manner that is, to the extent possible, consistent with the
treatment of such awards and grants for U.S. employees.
(e) OTHER AWARDS.
(i) CONVERTIBLE PARENT RESTRICTED STOCK. As determined by the
Committee in its sole discretion pursuant to its authority under any of the
Parent Long-Term Incentive Plans, each share of Parent Restricted Stock held by
a ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employee ("CONVERTIBLE RESTRICTED STOCK") shall be converted at
the Distribution into a number of shares of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Restricted Stock,
rounded to the nearest whole share, required to be granted to the holder of such
Parent Restricted Stock in order that the fair value of such ▇▇▇▇▇ ▇▇▇▇▇▇▇
Restricted Stock (as determined by the Committee in its sole discretion
following methods and assumptions consistent with SFAS 123) as of immediately
following the Distribution Date shall equal the fair value of the Parent
Restricted Stock immediately prior to the Distribution Date.
(ii) NON-CONVERTIBLE PARENT RESTRICTED STOCK. As determined by
the Committee in its sole discretion pursuant to its authority under any of the
Parent Long-Term Incentive Plans, each share of Parent Restricted Stock that is
not Convertible Restricted Stock shall be subject to the same terms and
conditions after the Distribution as the terms and conditions applicable to such
Parent Restricted Stock immediately prior to the Distribution; PROVIDED,
HOWEVER, that on the Close of the Distribution, the holder of the Parent
Restricted Stock shall receive a number of shares of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Common Stock
determined in the manner set forth in Section 3.1 of the Separation and
Distribution Agreement. Notwithstanding anything in any award agreement
evidencing the grant of such Parent Restricted Stock to the contrary, in
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no event shall the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Common Stock received with respect to such
Parent Restricted Stock be subject to any restriction.
(iii) RESTRICTED STOCK UNITS. As determined by the Committee in
its sole discretion pursuant to its authority under any of the Parent Long-Term
Incentive Plans, each Parent Restricted Stock Unit shall be subject to the same
terms and conditions after the Distribution as the terms and conditions
applicable to such Parent Restricted Stock Unit immediately prior to the
Distribution; PROVIDED, HOWEVER, that from and after the Close of the
Distribution the number of shares of Parent Common Stock subject to such Parent
Restricted Stock Unit, rounded to the nearest whole share, shall be equal to the
product of (x) the number of shares of Parent Common Stock subject to such
Parent Restricted Stock Unit immediately prior to the Distribution Date and (y)
the quotient obtained by dividing the Parent Stock Value by the Parent Opening
Stock Value.
(f) AGGREGATE LIMIT. Notwithstanding any provision of this Section 5.3
to the contrary, if the aggregate number of shares of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Common Stock
subject to ▇▇▇▇▇ ▇▇▇▇▇▇▇ Options and the number of shares of ▇▇▇▇▇ ▇▇▇▇▇▇▇
Restricted Stock issuable pursuant to Sections 5.3(b), 5.3(c) and 5.3(e)(i)
would exceed 8,000,000 in the aggregate, then the number of shares of ▇▇▇▇▇
▇▇▇▇▇▇▇ Common Stock subject to ▇▇▇▇▇ ▇▇▇▇▇▇▇ Options and shares of ▇▇▇▇▇
▇▇▇▇▇▇▇ Restricted Stock issuable under Sections 5.3(b), 5.3(c) and 5.3(e)(i)
shall be reduced on an individual pro rata grant-by-grant basis such that
8,000,000 shares of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Common Stock shall be subject to ▇▇▇▇▇ ▇▇▇▇▇▇▇
Options and ▇▇▇▇▇ ▇▇▇▇▇▇▇ Awards issuable pursuant to Sections 5.3(b), 5.3(c)
and 5.3(e)(i).
(g) MISCELLANEOUS OPTION AND OTHER AWARD TERMS.
(i) Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇ acknowledge that, in the context of
the Separation, the adjustment to Parent Options and the Parent Awards as set
forth in this Section 5.3 will be implemented, in part, by the issuance of ▇▇▇▇▇
▇▇▇▇▇▇▇ Options and ▇▇▇▇▇ ▇▇▇▇▇▇▇ Awards under the terms of the ▇▇▇▇▇ ▇▇▇▇▇▇▇
Long-Term Incentive Plan. Accordingly, it is intended that, to the extent of the
issuance of such ▇▇▇▇▇ ▇▇▇▇▇▇▇ Options and ▇▇▇▇▇ ▇▇▇▇▇▇▇ Awards in connection
with the adjustments set forth in this Section 5.3, the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Long-Term
Incentive Plan shall be considered a successor to the Parent Long-Term Incentive
Plan and to have assumed the obligation of the Parent Long-Term Incentive Plan
to make the adjustment of Parent Options and Parent Awards as set forth in this
Section 5.3.
(ii) After the Distribution Date, Parent Options and Parent
Awards adjusted pursuant to Section 5.3, regardless of by whom held, shall be
settled by Parent pursuant to the terms of the Parent Long-Term Incentive Plan,
and ▇▇▇▇▇ ▇▇▇▇▇▇▇ Options and ▇▇▇▇▇ ▇▇▇▇▇▇▇ Awards, regardless of by whom held,
shall be settled by ▇▇▇▇▇ ▇▇▇▇▇▇▇ pursuant to the terms of the ▇▇▇▇▇ ▇▇▇▇▇▇▇
Long-Term Incentive Plan.
(iii) Parent or a Parent Entity shall claim the benefit of
federal, state, and local tax deductions related to the exercise of all adjusted
Parent Options and the vesting or settlement, as applicable, of Parent Awards
after the Distribution Date and none of ▇▇▇▇▇ ▇▇▇▇▇▇▇ or any ▇▇▇▇▇ ▇▇▇▇▇▇▇
Entity shall claim any such tax deductions. After the Distribution Date, Parent
and the Parent Entities shall be responsible for the proper payroll tax
treatment and the
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proper reporting to the appropriate governmental authorities of compensation
relating to all option exercises of Parent Options and vesting or settlement, as
applicable, of Parent Awards.
(iv) ▇▇▇▇▇ ▇▇▇▇▇▇▇ or a ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity shall claim the
benefit of federal, state and local tax deductions related to the exercise of
▇▇▇▇▇ ▇▇▇▇▇▇▇ Options and the vesting or settlement, as applicable, of ▇▇▇▇▇
▇▇▇▇▇▇▇ Awards after the Distribution Date and neither Parent nor any Parent
Entity shall claim any such tax deductions. After the Distribution Date, ▇▇▇▇▇
▇▇▇▇▇▇▇ and the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities shall be responsible for the proper
payroll tax treatment and the proper reporting to the appropriate governmental
authorities of compensation relating to all option exercises of ▇▇▇▇▇ ▇▇▇▇▇▇▇
Options and vesting or settlement, as applicable, of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Awards.
(v) Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇ agree to act (or to take such
action) with respect to such federal, state, or local tax deductions, and with
respect to fulfilling the payroll tax and reporting obligations on compensation
as are reasonably necessary or appropriate to achieve, maintain and/or preserve
such tax results.
(vi) If (A) as a result of a determination (as defined in Section
1313 of the Code) or (B) in the opinion of nationally recognized tax counsel to
Parent or ▇▇▇▇▇ ▇▇▇▇▇▇▇, which opinion and tax counsel are reasonably acceptable
to the other party hereto, as a result of final or pending Treasury Regulations,
Internal Revenue Service announcement or otherwise, in each case, there is a
substantial likelihood that the tax deductions related to the exercise of
Options or Awards under this Agreement and/or the payroll tax and reporting
obligations related to the exercise of Options or vesting or settlement of
Awards, will be inconsistent with all or any part of Section 5.3 above, the
parties shall negotiate in good faith to restructure the arrangements set forth
herein so that (I) if, pursuant to the determination or opinion, a party gets a
tax deduction it was not entitled to claim under the terms of this Agreement,
that party shall pay over to the party entitled to claim the deduction under the
terms of this Agreement, as if and for the tax year(s) recognized through a
reduction in taxes due and/or the receipt of a refund in an amount equal to the
lesser of (X) its tax benefit and (Y) the benefit otherwise available to the
party entitled to such deduction under the terms of this Agreement, as if and
for the tax year(s) when such deduction would have resulted in a reduction in
taxes due and/or the receipt of a refund and (II) the reporting and financial
burden of the payroll taxes are, to the extent practicable, as described above.
Any such amounts shall be payable within 30 days of the filing of the return in
which the benefit described in (X) or (Y) of the preceding sentence, whichever
is later, is reflected. If the parties are unable to reach an agreement on how
to restructure the arrangements set forth herein within 90 days of such
determination or the receipt of the opinion of counsel described in the first
sentence of this subparagraph (vi) such disagreement shall be resolved by a
nationally recognized law firm or accounting firm ("INDEPENDENT THIRD PARTY"),
selected in a manner similar to the procedure set forth in Section 3(b)(iii) of
the Tax Sharing Agreement, whose judgment shall be conclusive and binding upon
the parties. The cost of any Independent Third Party shall be shared equally
between the parties.
(h) WAITING PERIOD FOR EXERCISABILITY OF OPTIONS. The Parent Options
and ▇▇▇▇▇ ▇▇▇▇▇▇▇ Options shall not be exercisable during a period beginning on
a date prior to the Distribution Date determined by Parent in its sole
discretion, and continuing until the Parent Opening Stock Value and the ▇▇▇▇▇
▇▇▇▇▇▇▇ Common Stock Value are determined immediately
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after the Distribution, or such longer period as Parent determines necessary to
implement the provisions of this Section 5.3.
(i) RESTRICTIVE COVENANTS. Following the Distribution Date, ▇▇▇▇▇
▇▇▇▇▇▇▇ shall use its reasonable best efforts to monitor the ▇▇▇▇▇ ▇▇▇▇▇▇▇
Employees and Former ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees to determine whether any such ▇▇▇▇▇
▇▇▇▇▇▇▇ Employees or Former ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees have breached any of the
restrictive covenants in the agreements evidencing the terms of their Parent
Options and Parent Awards. As soon as practicable following ▇▇▇▇▇ ▇▇▇▇▇▇▇'▇
reasonable belief that a ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employee or Former ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employee
has breached any such covenant, ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall provide Parent in writing
with the name and address of such employee or former employee and the name and
address of the enterprise in which such employee or former employee is believed
to have been engaged. Notwithstanding the foregoing or anything in any agreement
evidencing the terms of any Parent Options and Parent Awards to the contrary, it
shall not be a violation of any non-competition or non-solicitation of clients
or customers covenant for a holder of a Parent Option or Parent Award to engage
in acts on behalf of ▇▇▇▇▇ ▇▇▇▇▇▇▇ or a ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity that are otherwise
prohibited by the terms of such non-competition or non-solicitation of clients
or customers covenants.
5.4 SAVINGS CLAUSE. Notwithstanding any other provision of Section 5.3, if
and to the extent either Parent or ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall determine in its
reasonable judgment, after consultation with its legal counsel or financial
accountants, as appropriate, that any action required to be taken by it under
Section 5.3 does not comply with applicable laws or does not properly satisfy
all relevant financial accounting pronouncements, then Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇
shall take such other action as they mutually agree is necessary or appropriate
in order to address such laws or such financial accounting concerns.
5.5 REGISTRATION REQUIREMENTS. As soon as possible following the time as of
which the Registration Statement (as defined in the Separation and Distribution
Agreement) is declared effective by the Securities and Exchange Commission but
in any case before the Distribution Date and before the date of issuance or
grant of any ▇▇▇▇▇ ▇▇▇▇▇▇▇ Option and/or shares of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Common Stock
pursuant to this Article V, ▇▇▇▇▇ ▇▇▇▇▇▇▇ agrees that it shall file a Form S-8
Registration Statement with respect to and cause to be registered pursuant to
the Securities Act of 1933, as amended, the shares of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Common Stock
authorized for issuance under the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Long-Term Incentive Plan as
required pursuant to such Act and any applicable rules or regulations
thereunder, with such registration to be effective prior to the Distribution
Date.
5.6 PARENT NON-QUALIFIED RETIREMENT PLANS. Effective as of the Distribution
Date, ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall establish a non-qualified pension plan (the "▇▇▇▇▇
▇▇▇▇▇▇▇ NON-QUALIFIED RETIREMENT PLAN") that is substantially identical to the
Parent Non-Qualified Retirement Plan to provide benefits to ▇▇▇▇▇ ▇▇▇▇▇▇▇
Employees and Former ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees from and after the Distribution
Date who were participants in the Parent Non-Qualified Retirement Plan as of
immediately prior to the Distribution Date. Effective as of the Distribution
Date, ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall assume and be solely responsible for all Liabilities
of Parent for, or relating to, benefits accrued through the Distribution Date by
or with respect to ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees and Former ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employees
under the Parent Non-Qualified Retirement Plan and the ▇▇▇▇▇ ▇▇▇▇▇▇▇
Non-Qualified Retirement Plan.
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5.7 SEVERANCE PLANS. The Parent Severance Pay Program provides for the
payment of certain compensation and benefits in the event of the termination of
employment of the individual covered by the terms of such plans. As of the Close
of the Distribution Date, Parent shall retain all Liabilities relating to the
Parent Severance Pay Program and all Liabilities relating to, arising out of, or
resulting from claims incurred by or on behalf of any individual under such
plans. A ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employee shall not be deemed to have terminated
employment for purposes of determining eligibility for benefits under the
Severance Pay Plan or other similar plans and programs in connection with or in
anticipation of the consummation of the transactions contemplated by the
Separation and Distribution Agreement, and shall cease to be covered thereby as
of the Close of the Distribution Date. ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall be solely responsible
for all Liabilities in respect of all costs arising out of payments and benefits
relating to the termination or alleged termination of any ▇▇▇▇▇ ▇▇▇▇▇▇▇
Employee's employment that occurs as a result of or in connection with or
following the consummation of the transactions contemplated by the Separation
and Distribution Agreement, including any amounts required to be paid (including
any payroll or other taxes), and the costs of providing benefits, under any
applicable severance, separation, redundancy, termination or similar plan,
program, practice, contract, agreement, law or regulation (such benefits to
include any medical or other welfare benefits, outplacement benefits, accrued
vacation, and taxes). The Parent shall retain all Liabilities with respect to
the termination of any ▇▇▇▇▇ ▇▇▇▇▇▇▇ Employee or Former ▇▇▇▇▇ ▇▇▇▇▇▇▇ employee
prior to the Distribution Date.
ARTICLE VI
GENERAL AND ADMINISTRATIVE
6.1 SHARING OF PARTICIPANT INFORMATION. Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall
share, and Parent shall cause each other Parent Entity to share, and ▇▇▇▇▇
▇▇▇▇▇▇▇ shall cause each other ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity to share with each other and
their respective agents and vendors (without obtaining releases) all participant
information necessary for the efficient and accurate administration of each of
the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Benefit Plans and the Parent Benefit Plans. Parent and ▇▇▇▇▇
▇▇▇▇▇▇▇ and their respective authorized agents shall, subject to applicable
laws, be given reasonable and timely access to, and may make copies of, all
information relating to the subjects of this Agreement in the custody of the
other party, to the extent necessary for such administration. Until the Close of
the Distribution Date, all participant information shall be provided in the
manner and medium applicable to Participating Companies in Benefit Plans of
Parent generally, and thereafter until December 31, 2003, all participant
information shall be provided in a manner and medium as may be mutually agreed
to by Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇.
6.2 REASONABLE EFFORTS/COOPERATION. Each of the parties hereto will use its
commercially reasonable efforts to promptly take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate the transactions
contemplated by this Agreement. Each of the parties hereto shall cooperate fully
on any issue relating to the transactions contemplated by this Agreement for
which the other party seeks a determination letter or private letter ruling from
the Internal Revenue Service, an advisory opinion from the Department of Labor
or any other filing, consent or approval with respect to or by a governmental
agency.
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6.3 NO THIRD-PARTY BENEFICIARIES. This Agreement is solely for the benefit
of the Parties and is not intended to confer upon any other Persons any rights
or remedies hereunder. Except as expressly provided in this Agreement, nothing
in this Agreement shall preclude Parent or any other Parent Entity, at any time
after the Close of the Distribution Date, from amending, merging, modifying,
terminating, eliminating, reducing, or otherwise altering in any respect any
Parent Benefit Plan, any benefit under any Benefit Plan or any trust, insurance
policy or funding vehicle related to any Parent Benefit Plan. Except as
expressly provided in this Agreement, nothing in this Agreement shall preclude
▇▇▇▇▇ ▇▇▇▇▇▇▇ or any other ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity, at any time after the Close of
the Distribution Date, from amending, merging, modifying, terminating,
eliminating, reducing, or otherwise altering in any respect any ▇▇▇▇▇ ▇▇▇▇▇▇▇
Benefit Plan, any benefit under any Benefit Plan or any trust, insurance policy
or funding vehicle related to any ▇▇▇▇▇ ▇▇▇▇▇▇▇ Benefit Plan.
6.4 AUDIT RIGHTS WITH RESPECT TO INFORMATION PROVIDED.
(a) Each of Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇, and their duly authorized
representatives, shall have the right to conduct reasonable audits with respect
to all information required to be provided to it by the other party under this
Agreement. The party conducting the audit (the "AUDITING PARTY") may adopt
reasonable procedures and guidelines for conducting audits and the selection of
audit representatives under this Section 6.4. The Auditing Party shall have the
right to make copies of any records at its expense, subject to any restrictions
imposed by applicable laws and to any confidentiality provisions set forth in
the Separation and Distribution Agreement, which are incorporated by reference
herein. The party being audited shall provide the Auditing Party's
representatives with reasonable access during normal business hours to its
operations, computer systems and paper and electronic files, and provide
workspace to its representatives. After any audit is completed, the party being
audited shall have the right to review a draft of the audit findings and to
comment on those findings in writing within ten business days after receiving
such draft.
(b) The Auditing Party's audit rights under this Section 6.4 shall
include the right to audit, or participate in an audit facilitated by the party
being audited, of any Subsidiaries and Affiliates of the party being audited and
to require the other party to request any benefit providers and third parties
with whom the party being audited has a relationship, or agents of such party,
to agree to such an audit to the extent any such persons are affected by or
addressed in this Agreement (collectively, the "NON-PARTIES"). The party being
audited shall, upon written request from the Auditing Party, provide an
individual (at the Auditing Party's expense) to supervise any audit of a
Non-party. The Auditing Party shall be responsible for supplying, at the
Auditing Party's expense, additional personnel sufficient to complete the audit
in a reasonably timely manner. The responsibility of the party being audited
shall be limited to providing, at the Auditing Party's expense, a single
individual at each audited site for purposes of facilitating the audit.
6.5 FIDUCIARY MATTERS. It is acknowledged that actions required to be taken
pursuant to this Agreement may be subject to fiduciary duties or standards of
conduct under ERISA or other applicable law, and no party shall be deemed to be
in violation of this Agreement if it fails to comply with any provisions hereof
based upon its good faith determination that to do so would violate such a
fiduciary duty or standard. Each party shall be responsible for taking such
actions
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as are deemed necessary and appropriate to comply with its own fiduciary
responsibilities and shall fully release and indemnify the other party for any
Liabilities caused by the failure to satisfy any such responsibility.
6.6 CONSENT OF THIRD PARTIES. If any provision of this Agreement is
dependent on the consent of any third party (such as a vendor) and such consent
is withheld, the parties hereto shall use their reasonable best efforts to
implement the applicable provisions of this Agreement to the full extent
practicable. If any provision of this Agreement cannot be implemented due to the
failure of such third party to consent, the parties hereto shall negotiate in
good faith to implement the provision in a mutually satisfactory manner. The
phrase "reasonable best efforts" as used herein shall not be construed to
require any party to incur any non-routine or unreasonable expense or Liability
or to waive any right.
ARTICLE VII
MISCELLANEOUS
7.1 EFFECT IF DISTRIBUTION DOES NOT OCCUR. If the Separation and
Distribution Agreement is terminated prior to the Distribution Date, then all
actions and events that are, under this Agreement, to be taken or occur
effective immediately prior to or as of the Close of the Distribution Date, or
Immediately after the Distribution Date, or otherwise in connection with the
Separation Transactions shall not be taken or occur except to the extent
specifically agreed by Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇.
7.2 RELATIONSHIP OF PARTIES. Nothing in this Agreement shall be deemed or
construed by the parties or any third party as creating the relationship of
principal and agent, partnership or joint venture between the parties, it being
understood and agreed that no provision contained herein, and no act of the
parties, shall be deemed to create any relationship between the parties other
than the relationship set forth herein.
7.3 AFFILIATES. Each of Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall cause to be
performed, and hereby guarantees the performance of, all actions, agreements and
obligations set forth in this Agreement to be performed by another Parent Entity
or a ▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity, respectively.
7.4 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given to a
party when (a) delivered to the appropriate address by hand or by nationally
recognized overnight courier service (costs prepaid); (b) sent by facsimile with
confirmation of transmission by the transmitting equipment; or (c) received or
rejected by the addressee, if sent by certified mail, return receipt requested,
in each case to the following addresses and facsimile numbers and marked to the
attention of the person (by name or title) designated below (or to such other
address, facsimile number or person as a party may designate by notice to the
other parties):
(a) if to Parent:
U.S. Bancorp
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to ▇▇▇▇▇ ▇▇▇▇▇▇▇:
▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
7.5 INCORPORATION OF SEPARATION AND DISTRIBUTION AGREEMENT PROVISIONS. The
following provisions of the Separation and Distribution Agreement are hereby
incorporated herein by reference, and unless otherwise expressly specified
herein, such provisions shall apply as if fully set forth herein (references in
this Section 7.5 to an "Article" or "Section" shall mean Articles or Sections of
the Separation and Distribution Agreement, and references in the material
incorporated herein by reference shall be references to the Separation and
Distribution Agreement): Article IV (relating to Survival and Indemnification);
Article V (relating to Certain Additional Covenants); Article VI (relating to
Access to Information); Article VII (relating to No Representations or
Warranties); Article VIII (relating to Terminations); Article IX (relating to
Miscellaneous).
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IN WITNESS WHEREOF, the parties have caused this
Employee Benefits
Agreement to be duly executed as of the day and year first above written.
U.S. BANCORP
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES
By:
--------------------------------------
Name:
Title:
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