-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KFxec+L7ruKLe1fqjade1o8PkvToeVyI9w2azO2y6+ALznkF1gboTlvqHviYwx9p C6cH9LsG19znWlIUUPCTYQ== 0000950154-02-000015.txt : 20020413 0000950154-02-000015.hdr.sgml : 20020413 ACCESSION NUMBER: 0000950154-02-000015 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20011129 ITEM INFORMATION: Acquisition or disposition of assets ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20020115 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FMC CORP CENTRAL INDEX KEY: 0000037785 STANDARD INDUSTRIAL CLASSIFICATION: CHEMICALS & ALLIED PRODUCTS [2800] IRS NUMBER: 940479804 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-02376 FILM NUMBER: 2509509 BUSINESS ADDRESS: STREET 1: 200 E RANDOLPH DR CITY: CHICAGO STATE: IL ZIP: 60601 BUSINESS PHONE: 3128616000 FORMER COMPANY: FORMER CONFORMED NAME: BEAN SPRAY PUMP CO DATE OF NAME CHANGE: 19670706 FORMER COMPANY: FORMER CONFORMED NAME: FOOD MACHINERY & CHEMICAL CORP DATE OF NAME CHANGE: 19670706 8-K 1 fmc-8k_52724.txt FMC CORPORATION 8-K FILING SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------------- FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15 (d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported) December 31, 2001 FMC CORPORATION ------------------------------------------------------ (Exact name of registrant as specified in its charter) Delaware 1-2376 94-0479804 ---------------------------- ------------- ------------------- (State or other jurisdiction (Commission (I.R.S. Employer of incorporation) File Number) Identification No.) 1735 Market Street, Philadelphia, Pennsylvania 19103 -------------------------------------------------- (Address of principal executive offices) (Zip Code) (215) 299-6000 ------------------------------ Registrant's telephone number, including area code PAGE 2 Item 2. Acquisition or Disposition of Assets Spin-off of FMC Technologies, Inc. Stock On December 31, 2001 FMC Corporation ("FMC") completed the separation of FMC Technologies, Inc. ("FTI") through the tax-free distribution of all of the remaining shares of FTI Common Stock owned by FMC. Previously, on November 29, 2001 the Board of Directors of FMC approved a distribution of FMC's remaining 83 percent equity interest in FTI by distributing a special dividend to FMC's shareholders of record as of 6:00 p.m., Eastern Standard Time, on December 12, 2001, which is the record date. As of that date FMC owned 53.95 million shares of common stock of FTI. The remaining 17 percent of FMC Technologies' outstanding shares were sold in an initial public offering in June 2001. FMC shareholders received 1.71972131 shares of FTI for each FMC share, based on 31.4 million FMC shares outstanding. The final distribution ratio was determined based on the number of FMC shares outstanding on the record date. FMC shareholders received whole shares of FTI and cash payments for fractional shares. Cash received in lieu of fractional shares is taxable to the recipient. The Information Statement issued to the registrant's stockholders and copies of the registrant's press releases relating to this spin-off are filed herewith as follows: - Exhibit 99.1: Press Release dated November 29, 2001 - Exhibit 99.2: Information Statement dated December 14, 2001 - Exhibit 99.3: Press Release dated December 31, 2001 Item 7. Financial Statements and Exhibits. (b) Pro Forma Financial Information: Unaudited Pro Forma Consolidated Statements of Income of FMC Corporation for the nine months ended September 30, 2001 and for the year ended December 31, 2000 and Unaudited Pro Forma Condensed Consolidated Balance Sheet as of September 30, 2001. FMC CORPORATION UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS - BASIS OF PRESENTATION The unaudited pro forma consolidated statements of income reflect the consolidated results of operations of FMC Corporation ("FMC") assuming the spin-off of its FMC Technologies, Inc. ("FTI") business, as discussed in Item 2 above, had occurred at the beginning of each period presented. The unaudited pro forma condensed consolidated balance sheet reflects the consolidated financial position of FMC after the spin-off of its FTI business, as discussed in Item 2 above, as though the spin-off had occurred at the balance sheet date. The unaudited pro forma consolidated statements of income and the unaudited pro forma consolidated balance sheet have been prepared by FMC based upon the assumptions and adjustments it has deemed appropriate, as described in the accompanying Notes to Unaudited Pro Forma Financial Statements. The following unaudited pro forma information may not necessarily reflect the consolidated results of operations of FMC that would have actually resulted, had the transactions occurred as of the dates indicated. The unaudited pro forma information should be read in conjunction with FMC's Annual Report on Form 10-K and Quarterly Reports on Form 10-Q for the relevant time periods. Such information contained herein represents management's best judgment as of the date hereof based on information currently available. FMC does not intend to update this information and disclaims any legal obligation to the contrary. Historical information is not necessarily indicative of future performance. PAGE 3
FMC CORPORATION AND CONSOLIDATED SUBSIDIARIES PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEETS AS OF SEPTEMBER 30, 2001 (IN THOUSANDS, EXCEPT PER SHARE DATA) Pro Forma Historic ---------------------- Pro Forma FMC FTI Adj. Note FMC --------- ---------- ---------- ------ --------- ASSETS Current assets: Cash and cash equivalents $ 123.6 $ (89.0) $ 34.6 Trade receivables, net of allowance for doubtful accounts of $20.2 (pro forma $11.7) 669.8 (352.0) 317.8 Inventories 468.9 (276.8) 192.1 Due from FMC Technologies, Inc. -- -- $ 32.7 A 32.7 Other current assets 195.8 (76.1) 119.7 Deferred income taxes 116.9 (28.1) 88.8 --------- ---------- ---------- --------- Total current assets 1,575.0 (822.0) 32.7 785.7 Investments 78.4 (27.0) 51.4 Property, plant and equipment at cost 3,136.4 (601.4) 2,535.0 Less -- accumulated depreciation 1,788.2 (345.0) 1,443.2 --------- ---------- ---------- --------- Property, plant and equipment, net 1,348.2 (256.4) 1,091.8 Goodwill and intangible assets 459.6 (343.1) 116.5 Other assets 187.8 (9.3) 178.5 Deferred income taxes 143.8 (29.6) 114.2 --------- ---------- --------- --------- Total assets $ 3,792.8 $ (1,487.4) $ 32.7 $ 2,338.1 ========= ========== ========== ========= LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Short-term debt $ 192.9 $ (82.6) $ 110.3 Accounts payable, trade and other 563.0 (329.0) 234.0 Income taxes payable and other current liabilities 656.9 (229.6) 427.3 Current portion of long-term debt 35.9 -- 35.9 Current portion of accrued pension and other postretirement benefits 44.9 (17.5) 27.4 Intercompany payables -- (32.7) $ 32.7 A -- --------- ---------- ---------- --------- Total current liabilities 1,493.6 (691.4) 32.7 834.9 Long-term debt, less current portion 1,001.7 (250.2) 751.5 Accrued pension and other postretirement benefits, less current portion 160.8 (50.6) 110.2 Reserves for discontinued operations and long-term environmental liabilities 257.7 (25.7) 232.0 Other non-current liabilities 151.4 (78.0) 73.4 Minority interests in consolidated companies 117.2 (3.3) (67.1) B 46.8 Stockholders' equity: Preferred stock, no par value, authorized 5,000,000 shares; no shares issued Common stock, $0.10 par value, authorized 130,000,000 shares; issued 39,193,208 shares 3.9 (.7) .7 3.9 Capital in excess of par value of common stock 215.5 (509.8) 509.8 215.5 Retained earnings 1,229.0 (20.9) (493.4) B 764.7 Accumulated other comprehensive (loss) (326.0) 143.2 (182.8) Treasury stock, common, at cost; 7,974,738 shares (512.0) -- (512.0) --------- ---------- ---------- --------- Total stockholders' equity 610.4 (388.2) 67.1 289.3 --------- ---------- ---------- --------- Total liabilities and stockholders' equity $ 3,792.8 $ (1,487.4) $ 32.7 $ 2,338.1 ========= ========== ========== =========
- ------------------------------------------------------------------- A - Recognition of receivable from FTI for changes in FTI's cash and debt balances through May 31, 2001 and intercompany transactions through September 30, 2001. B - Recognition of the dividend of FTI shares to FMC shareholders, including the elimination of the minority interest liability to FTI minority shareholders through the distribution of the dividend. PAGE 4
FMC CORPORATION AND CONSOLIDATED SUBSIDIARIES PRO FORMA CONSOLIDATED STATEMENTS OF INCOME FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2001 (UNAUDITED AND IN MILLIONS, EXCEPT PER SHARE AMOUNTS) Pro Forma Historic ------------------------- Pro Forma FMC FTI Adj. Note FMC --------- ---------- ---------- ------ --------- Revenue $ 2,834.7 $(1,381.5) $ 1,453.2 Costs and expenses: Cost of sales or services 2,118.8 (1,065.6) 1,053.2 Selling, general and administrative expense 393.1 (214.1) $ 2.4 C 181.4 Research and development expense 115.9 (42.0) 73.9 Asset impairments 324.4 (1.3) 323.1 Restructuring and other charges 215.0 (15.5) (15.0) D 184.5 --------- --------- ---------- --------- Total costs and expenses 3,167.2 (1,338.5) (12.6) 1,816.1 Income (loss) from continuing operations before minority interests, net interest expense, income taxes and the cumulative effect of a change in accounting principle (332.5) (43.0) (12.6) (362.9) Minority interests 5.8 (0.7) (3.6) E 1.5 Interest expense 67.1 (10.5) (11.2) F 45.4 Interest income (3.6) 2.4 (1.2) --------- --------- ---------- --------- Income (loss) from continuing operations before income taxes and the cumulative effect of a change in accounting principle (401.8) (34.2) 27.4 (408.6) Provision (benefit) for income taxes (102.4) (16.2) (19.4) G (138.0) --------- --------- ---------- --------- Income (loss) from continuing operations before cumulative effect of a change in accounting principle (299.4) (18.0) 46.8 (270.6) Cumulative effect of change in accounting principle, net of income taxes (5.6) 4.7 (0.9) --------- --------- ---------- --------- Income (loss) from continuing operations $(305.0) $ (13.3) $ 46.8 $ (271.5) ========= ========= ========== ========= Basic loss per common share: Loss from continuing operations before the cumulative effect of a change in accounting principle $ (9.65) $ (8.73) Cumulative effect of a change in accounting principle, net of income taxes (0.18) (0.03) --------- --------- Net loss from continuing operations per common share $ (9.83) $ (8.76) ========= ========= Average number of shares used in basic loss per common share computations 31.0 31.0 ========= ========= Diluted loss per common share: Loss from continuing operations before the cumulative effect of a change in accounting principle $ (9.65) $ (8.73) Cumulative effect of a change in accounting principle, net of income taxes (0.18) (0.03) --------- --------- Net loss from continuing operations per common share $ (9.83) $ (8.76) ========= ========= Average number of shares used in diluted loss per share computations 31.0 31.0 ========= =========
- -------------------------------------------------------------------------------- C - Adjustment for corporate costs primarily associated with FTI stock-based compensation. D - Primarily severance and lease termination costs directly related to the decision to spin-off FTI. Pro forma FMC restructuring and other charges also include an additional $16.6 million related to the reorganization of FMC associated with the spin-off of FTI. E - Minority interest expense associated with FTI. F - Annualized interest expense allocated to FTI in accordance with EITF 87-24 "Allocation of Interest to Discontinued Operations." G - Tax on pro forma adjustments calculated as follows: - Add back of tax provision adjustments related to legal entity reorganizations associated with the formation of FTI ($28.7) - Taxable adjustments at 39% 9.3 -------- Total ($19.4) The pro forma effective tax rate on earnings excluding asset impairments of $323.1 and restructuring and other charges of $184.5 is approximately 23.5%. The effective rate on earnings excluding these items for the full year, on a pro forma basis, is expected to be approximately 23.7%. PAGE 5
FMC CORPORATION AND CONSOLIDATED SUBSIDIARIES PRO FORMA CONSOLIDATED STATEMENTS OF INCOME FOR THE YEAR ENDED DECEMBER 31, 2000 (UNAUDITED AND IN MILLIONS, EXCEPT PER SHARE AMOUNTS) Pro Forma Historic ---------------------- Pro Forma FMC FTI Adj. Note FMC --------- ---------- ---------- ------ --------- Revenue $ 3,925.5 $(1,875.2) $ 2,050.3 Costs and expenses: Cost of sales and services 2,872.0 (1,421.1) 1,450.9 Selling, general and administrative expense 522.5 (291.2) 231.3 Research and development expense 154.5 (56.7) 97.8 Asset impairments 11.6 (1.5) 10.1 Restructuring and other charges 45.0 (9.8) 35.2 --------- --------- ---------- --------- Total costs and expenses 3,605.6 (1,780.3) 1,825.3 Income from continuing operations before minority interests, net interest expense, income taxes and cumulative effect of a change in accounting principle 319.9 (94.9) 225.0 Minority interests 4.6 -- 4.6 Interest expense 99.7 (6.6) (26.6) F 66.5 Interest income (7.0) 2.3 -- (4.7) --------- --------- ---------- --------- Income from continuing operations before income taxes and cumulative effect of a change in accounting principle 222.6 (90.6) 26.6 158.6 Provision for income taxes 45.3 (22.7) 10.4 H 33.0 --------- --------- ---------- --------- Income from continuing operations before cumulative effect of a change in accounting principle $ 177.3 $ (67.9) $16.2 $ 125.6 ========= ========= ========== ========= Basic earnings from continuing operations per common share $ 5.83 $ 4.13 ========= ========= Average number of shares 30.4 30.4 ========= ========= Diluted earnings from continuing operations per common share used in basic earnings per share computations $ 5.62 $ 3.98 ========= ========= Average number of shares used in diluted earnings per share computations 31.6 31.6 ========= =========
- ----------------------------------------- H - Tax on pro forma adjustment at 39%. (b) Exhibits 2.1 Form of Separation and Distribution Agreement 4.1 $240,000,000 364-day Credit Agreement 99.1 Press Release dated November 29, 2001 announcing the special dividend of FTI stock. 99.2 Information Statement dated December 14, 2001 99.3 Press Release dated December 31, 2001 announcing the completion of the special dividend of FTI stock PAGE 6 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. FMC CORPORATION By /s/ Andrea E. Utecht --------------------------------------------- Andrea E. Utecht Vice President, General Counsel and Secretary Date: January 9, 2002 EX-2 3 fmcex2-1_52724.txt EXHIBIT 2.1 - SEPARATION AND DISTRIBUTION AGREE EXHIBIT 2.1 FORM OF SEPARATION AND DISTRIBUTION AGREEMENT by and between FMC CORPORATION and FMC TECHNOLOGIES, INC. Dated as of ________ __, 2001
TABLE OF CONTENTS PAGE ---- ARTICLE I. DEFINITIONS........................................................................................... 2 1.1 General............................................................................................... 2 1.2 References to Time.................................................................................... 14 ARTICLE II. THE CONTRIBUTION...................................................................................... 14 2.1 Contribution.......................................................................................... 14 2.2 Conditions Precedent to Consummation of the Contribution.............................................. 16 2.3 Certain Foreign Transfers............................................................................. 16 2.4 Ancillary Agreements.................................................................................. 17 2.5 Transfers Not Effected Prior to the Separation; Transfers Deemed Effective as of the Assumption Time.. 18 2.6 Assumption of Debt.................................................................................... 19 2.7 Certificate of Incorporation; By-laws; Rights Plan.................................................... 19 ARTICLE III. THE IPO AND ACTIONS PENDING THE IPO................................................................... 19 3.1 Transactions Prior to the IPO......................................................................... 19 3.2 Proceeds.............................................................................................. 19 3.3 Costs and Expenses.................................................................................... 19 3.4 Conditions Precedent to Consummation of the IPO....................................................... 19 ARTICLE IV. THE DISTRIBUTION...................................................................................... 20 4.1 Record Date and Distribution Date..................................................................... 20 4.2 The Agent............................................................................................. 20 4.3 Delivery of Share Certificates to the Agent........................................................... 20 4.4 Actions Prior to the Distribution..................................................................... 20 4.5 The Distribution...................................................................................... 21 4.6 Conditions to Obligations............................................................................. 21 4.7 Costs and Expenses.................................................................................... 22 4.8 Satisfaction or Waiver................................................................................ 22 ARTICLE V. SURVIVAL AND INDEMNIFICATION.......................................................................... 22 5.1 Survival of Agreements................................................................................ 22 5.2 Indemnification....................................................................................... 22 5.3 Procedures for Indemnification for Third-Party Claims................................................. 23 5.4 Remedies Cumulative................................................................................... 25 -i- ARTICLE VI. CERTAIN ADDITIONAL COVENANTS.......................................................................... 25 6.1 Notices to Third Parties.............................................................................. 25 6.2 Licenses and Permits.................................................................................. 25 6.3 Intercompany Agreements; Intercompany Accounts........................................................ 25 6.4 Guarantee Obligations................................................................................. 26 6.5 Further Assurances.................................................................................... 26 6.6 Qualification as Tax-Free Distribution................................................................ 27 6.7 Non-Solicitation...................................................................................... 28 6.8 Aircraft.............................................................................................. 28 ARTICLE VII. ACCESS TO INFORMATION................................................................................. 28 7.1 Agreement for Exchange of Information................................................................. 28 7.2 Ownership of Information.............................................................................. 29 7.3 Compensation for Providing Information................................................................ 29 7.4 Record Retention...................................................................................... 29 7.5 Limitation of Liability............................................................................... 29 7.6 Other Agreements Providing for Exchange of Information................................................ 29 7.7 Production of Witnesses; Records; Cooperation......................................................... 29 7.8 Confidentiality....................................................................................... 30 7.9 Protective Arrangements............................................................................... 31 ARTICLE VIII. NO REPRESENTATIONS OR WARRANTIES...................................................................... 31 8.1 No Representations or Warranties...................................................................... 31 ARTICLE IX. REGISTRATION RIGHTS................................................................................... 32 9.1 Demand Registration Rights............................................................................ 32 9.2 Piggy-back Registration Rights........................................................................ 33 9.3 Registration Procedures............................................................................... 34 9.4 Registration Expenses................................................................................. 37 9.5 Termination of Registration Obligation................................................................ 38 ARTICLE X. TERMINATION........................................................................................... 38 10.1 Termination by Mutual Consent......................................................................... 38 10.2 Effect of Termination................................................................................. 38 ARTICLE XI. MISCELLANEOUS......................................................................................... 38 11.1 Complete Agreement; Corporate Power................................................................... 38 11.2 Expenses.............................................................................................. 39 11.3 Governing Law......................................................................................... 39 11.4 Notices............................................................................................... 39 11.5 Amendment and Modification............................................................................ 39 11.6 Successors and Assigns; No Third-Party Beneficiaries.................................................. 39 -ii- 11.7 Counterparts.......................................................................................... 40 11.8 Interpretation........................................................................................ 40 11.9 Severability.......................................................................................... 40 11.10 References; Construction.............................................................................. 40 11.11 Conflict with Ancillary Agreements.................................................................... 40 11.12 Post Foreign-Restructuring Capital Contribution....................................................... 40 ARTICLE XII. NEGOTIATION........................................................................................... 40 12.1 Negotiation........................................................................................... 40
-iii- SEPARATION AND DISTRIBUTION AGREEMENT This SEPARATION AND DISTRIBUTION AGREEMENT (this "Agreement"), dated --------- as of _______ __, 2001, is by and between FMC CORPORATION, a Delaware corporation ("Parent"), and FMC TECHNOLOGIES, INC., a Delaware corporation and a ------ wholly owned subsidiary of Parent ("Technologies"). ------------ RECITALS -------- 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 (the "Separation"), pursuant to the ---------- terms and subject to the conditions set forth in this Agreement; WHEREAS, to effect the Separation, Parent intends to cause the transfer to Technologies of certain assets of Parent and its Subsidiaries, and the assumption by Technologies of certain liabilities of Parent and its Subsidiaries, primarily related to the Technologies Business (the "Contribution") as contemplated by this Agreement and the Ancillary Agreements; ------------ WHEREAS, to effect the Separation, Parent further intends to cause Technologies to offer and sell for its own account in an initial public offering (the "IPO") an amount of shares of common stock, par value $.01 per share, of --- Technologies (together with the Technologies Rights, "Technologies Common ------------------- Stock") that will reduce Parent's beneficial ownership of Technologies Common - ----- Stock to an amount representing not less than 80.1 percent of the total voting power of Technologies; WHEREAS, to effect the Separation, Parent, in its discretion, may complete the Distribution; WHEREAS, it is the intention of the parties to this Agreement that, for United States federal income tax purposes, the Distribution shall qualify as a tax-free spin-off under Section 355 of the Internal Revenue Code of 1986, as amended (the "Code"); ---- WHEREAS, the Boards of Directors of Parent and Technologies have each determined that the Separation and the Contribution, the IPO, the Distribution and the other transactions contemplated by this Agreement and the Ancillary Agreements are in furtherance of and consistent with their respective business strategies and are in the best interests of their respective companies and stockholders and have approved this Agreement and the Ancillary Agreements; and WHEREAS, it is appropriate and desirable to set forth the principal corporate transactions required to effect the Separation and certain other agreements that will govern certain matters relating to the Separation and the Contribution, the IPO and the Distribution and the relationship of Parent and Technologies and their respective Subsidiaries following the IPO and the Distribution. NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements set forth herein, the parties hereto hereby agree as follows: ARTICLE I DEFINITIONS SECTION 1.1 General. As used in this Agreement, the following ------- terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined): Accounts Receivable Facility: the FMC Corporation Securitization program arising pursuant to the Receivables Purchase Agreement dated as of November 24, 1999 among FMC Funding Corporation, Parent, Corporation, as a servicer, CIESCO, L.P., Citibank, N.A. and Citicorp North America, Inc., as agent, and all documents, agreements and instruments related thereto. Action: any demand, action, lawsuit, countersuit, arbitration, inquiry, proceeding or investigation by or before any Governmental Authority or any arbitration or mediation tribunal. Actual IPO Proceeds: the proceeds received (priced at the IPO price) from the underwriters by Technologies as a result of the IPO, net of all out-of- pocket fees, costs and expenses incurred in connection with completing the Contribution and IPO (including, without limitation, legal and accounting fees, costs and expenses, printing costs, filing, listing and Blue Sky fees, transfer agent and registrar costs, fees and expenses, expenses, fees and costs incurred in connection with the road show presentations and all related meeting and travel expenses), plus one-half the net amounts received (priced at the IPO ---- price) in connection with the full exercise of any over-allotment option, whether or not such option is exercised in part, in full or not at all. Affiliate: with respect to any specified Person, a Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person; provided, -------- however, that, for purposes of this Agreement, no member of either Group shall - ------- be deemed to be an Affiliate of any member of the other Group. As used herein, "control" means the possession, directly or indirectly, of the power to direct ------- or cause the direction of the management and policies of such entity, whether through ownership of voting securities or other interests, by contract or otherwise. Agent: the distribution agent to be appointed by Parent to distribute the shares of Technologies Common Stock pursuant to the Distribution. Agreement: as defined in the Recitals hereto. Amended and Restated By-laws: the Amended and Restated By-laws of Technologies substantially in the form of Exhibit E hereto, with such changes as --------- are acceptable to Parent and Technologies. 2 Amended and Restated Certificate of Incorporation: the Amended and Restated Certificate of Incorporation of Technologies substantially in the form of Exhibit D hereto, with such changes as are acceptable to Parent and --------- Technologies. Ancillary Agreements: the Benefits Agreement, the Tax Sharing Agreement, agreements relating to the Foreign Transfers and certain transfers and assumptions contemplated by Section 2.1(e), the Transition Services -------------- Agreement, the Trademark License Agreement, the Insurance Proceeds Agreement, any shared facilities agreements and the other agreements entered into or to be entered into in connection with the Separation as contemplated by Article II of ---------- this Agreement. Assets: any and all assets, properties and rights (including goodwill) of every kind, nature and description, whether real, personal or mixed, tangible or intangible, accrued, contingent or otherwise, whether now existing or hereafter acquired, wheresoever situated, and in each case whether or not recorded or reflected or required to be recorded or reflected on the books and records or financial statements of any Person, including, without limitation, the following: (1) all cash, cash equivalents, notes, accounts receivable, notes receivable and mortgages receivable (whether current or non-current); (2) all interests in any capital stock or other equity interests, all rights as a partner or joint venturer or participant, certificates of deposit, banker's acceptances, bonds, notes, debentures, evidences of indebtedness, certificates of interest or participation in profit-sharing agreements, collateral-trust certificates, preorganization certificates or subscriptions, utility deposits, transferable shares, investment contracts, voting-trust certificates, fractional undivided interests in oil, gas or other mineral rights, all loans, advances or other extension of credit or capital contributions, and all puts, calls, straddles, warrants, options and other similar rights, and other securities of any kind; (3) all Intellectual Property Rights; (4) all rights, title and interests in, to and under leases, subleases, contracts, licenses, permits, registrations, certifications, distribution arrangements, open purchase orders for raw materials, supplies, parts or services, unfilled orders for the manufacture and sale of products, other sales and purchase agreements, confidentiality agreements, and other agreements and business arrangements; (5) all rights, title and interests in, to and under Real Property; (6) all leasehold improvements, fixtures, trade fixtures, machinery, equipment (including transportation and office equipment), tools, dies, furniture and furnishings; (7) all fixtures, machinery, equipment, tools, other inventories of supplies and spare parts, automobiles, forklifts, other vehicles and transportation equipment, furniture and office equipment, office supplies, production supplies, spare parts, other miscellaneous supplies, models, prototypes, test devices and other tangible assets or properties of any kind; 3 (8) all apparatus, computers and other electronic data processing and computer equipment and all computer applications, programs and other software, including operating software, network software, firmware, middleware, design software, design tools, systems documentation and instructions; (9) all written technical information, data, specifications, research and development information, engineering drawings, operating and maintenance manuals, and materials and analyses prepared by consultants and other third parties; (10) all raw materials, parts, work-in-process, supplies, finished goods, consigned goods, products and other inventories; (11) all deposits, letters of credit, performance and surety bonds, prepayments and prepaid or advanced payments and expenses, trade accounts and other accounts and notes receivable; (12) all rights to causes of action, lawsuits, judgments, claims, choses in action, all rights under express or implied warranties, all claims or rights against any Person arising from the ownership of any Asset, all rights in connection with any bids or offers, all rights of recovery and all rights of setoff of any kind and demands of any nature, in each case whether mature, contingent or otherwise, whether in tort, contract or otherwise, whether arising by way of counterclaim or otherwise; (13) all rights to receive mail, payments on accounts receivable and other communications; (14) all rights under insurance policies and all rights in the nature of insurance, indemnification or contribution; (15) all accounting and other files, records and data, including schematics, books, manuals, technical information and engineering data, programming information, computerized data, books of account, ledgers, employment records, lists and files relating to customers, vendors, suppliers and agents, quality records and reports, research records, cost information, pricing data, market surveys and marketing know-how, mailing lists, purchase and sale records and correspondence, advertising and marketing records, of every kind, whether on paper, microfilm, microfiche, computer tape or disc, magnetic tape or any other form; (16) all goodwill as a going concern and other intangible properties; (17) all rights under employee contracts, including any rights thereunder to restrict an employee from competing in certain respects; and (18) all permits, approvals, orders, authorizations, consents, licenses, certificates, franchises, exemptions of, or filings or registrations with or issued by, any Governmental Authority in any jurisdiction, and all pending applications therefor. Assumption Time: 12:01 a.m. on May 1, 2001. 4 Auto Liabilities: all Losses, whether direct or indirect, known or unknown, current or potential, past, present or future, with respect of bodily injury, personal injury or property damage arising from or relating to an automobile of a Discontinued Machinery Business. Benefits Agreement: the Employee Benefits Agreement, between Parent and Technologies, substantially in the form of Exhibit A hereto, with such --------- changes as are acceptable to Parent and Technologies. Blackout Period: as defined in Section 9.1(b) hereof. -------------- Business: the Technologies Business or the Parent Business. Business Day: any day, other than a Saturday or Sunday, or a day on which banking institutions are authorized or required by law or regulation to close in Illinois. Cash: the amount reflected in the cash and marketable accounts of any company's balance sheet as of any given date. CERCLA: the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. 9601 et seq. ------- Closed Machinery Businesses: businesses, operations or products (including related joint ventures and alliances) set forth on Schedule G-1. ------------ Code: as defined in the Recitals hereto. Consents: any consents, waivers or approvals from, or notification requirements to, any third parties. Contribution: as defined in the Recitals hereto. Crosby Valve Businesses: as defined on attached Schedule J ---------- Demand: as defined in Section 9.1(a) hereof. -------------- Demand Registration: as defined in Section 9.1(a) hereof. -------------- Demand Shares: as defined in Section 9.1(a) hereof. --------------- Discontinued Machinery Businesses: discontinued businesses, operations or products (including related joint ventures and alliances) set forth on Schedule G-2. - ------------ Distribution: the distribution of all issued and outstanding shares of Parent Technologies Shares by means of Spin-Off; a Split-Off; or a combination of a Spin-Off and a Split-Off. 5 Distribution Date: the date as of which the Distribution shall be effected, to be determined by, or under the authority of, the Board of Directors of Parent consistent with this Agreement. Distribution Information Statement: as defined in Section 4.4 hereof. ----------- Environmental Law: any federal, state, local, foreign or international statute, ordinance, rule, regulation, code, license, permit, authorization, approval, consent, common law (including tort and environmental nuisance law), legal doctrine, order, judgment, decree, injunction, requirement or agreement with any Governmental Authority, now or hereafter in effect relating to health, safety, pollution or the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or to emissions, discharges, releases or threatened releases of any substance currently or at any time hereafter listed, defined, designated or classified as hazardous, toxic, waste, radioactive or dangerous, or otherwise regulated, under any of the foregoing, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of any such substances, including, without limitation, CERCLA, the Superfund Amendments and Reauthorization Act and the Resource Conservation and Recovery Act and comparable provisions in state, local, foreign or international law. Environmental Liabilities: all Losses, whether direct or indirect, known or unknown, current or potential, past, present or future: (i) imposed by, under or pursuant to any Environmental Law, including all Losses related to Remedial Actions, and all fees, capital costs, disbursements and reasonable out- of-pocket costs, fees and expenses of counsel, experts, contractors, personnel and consultants based on, arising out of or otherwise in respect of: (A) the applicable Business, the Real Property owned by such Business or any other property owned, operated, used or leased by such applicable Business at any time; or any other property where such applicable Business contracted or arranged for disposal at any time; (B) conditions existing on, under, around or above any such property; and (C) expenditures necessary to cause any such property or any aspect of the applicable Business to be in compliance with any and all requirements of Environmental Laws; and (ii) with respect of bodily injury, personal injury or property damage arising from or relating to Releases of Hazardous Substances. Exchange Act: the Securities Exchange Act of 1934, as amended, together with the rules and regulations promulgated thereunder. Expected IPO Proceeds: the estimated amount of proceeds (at the estimated IPO price) that Technologies will receive as a result of the IPO, net of all estimated out-of-pocket fees, costs and expenses incurred in connection with completing the Contribution and IPO (including, without limitation, legal and accounting fees, costs and expenses, printing costs, filing, listing and Blue Sky fees, transfer agent and registrar costs, fees and expenses, expenses, fees and costs incurred in connection with the road show presentations and all related meeting and travel expenses) from the underwriters, plus one-half the net amount that would be received (at the estimated IPO price) in connection with the full exercise of any over-allotment option. Final Calculation Date: April 30, 2001. 6 Financing Facilities: (a) the $200,000,000 180-Day Revolving Credit Agreement, dated as of February 21, 2001, among Parent, Technologies, Citibank, N.A., as Administrative Agent, Salomon Smith Barney Inc., as Lead Arranger, and the Lenders named party thereto; (b) the $250,000,000 Five-Year Credit Agreement, dated as of April __, 2001, the Lenders named therein, as Lenders, and Banc of America Securities LLC, as Administrative Agent and LC Issuer; and (c) the $150,000,000 364 Day Credit Agreement, dated as of April __, 2001, the Lenders named therein, as Lenders, Banc of America Securities LLC, as Administrative Agent. FMC Logo: all trademarks, service marks, and trade names that consist of only the term "FMC," including stylized versions thereof, and which do not contain any other words or logos in combination therewith. Foreign Exchange Contracts: hedge and option arrangements entered into by Parent in respect of the Technologies Business. Foreign Exchange Rate: with respect to any currency other than United States dollars as of any date, the average closing exchange rate at which United States dollars may be exchanged for such currency (as quoted in the Wall Street Journal) for the twenty (20) Business Days immediately preceding the day on which such payment is required to be made. Foreign Transfer Taxes: Taxes that may be imposed by any jurisdiction other than the United States or any political subdivision thereof in connection with the Foreign Transfers on any member of the Technologies Group or the Parent Group. Foreign Transfers: as defined in Section 2.3(a) hereof. -------------- General Liabilities: all Losses, whether direct or indirect, known or unknown, current or potential, past, present or future, with respect to bodily injury, personal injury, property damage or other wrongs arising from the premises or the operations of a Discontinued Machinery Business. General Liabilities exclude all Liabilities arising out of or in connection with location of asbestos on the Real Property of Discontinued Machinery Businesses and also excludes all Environmental Liabilities related to Discontinued Machinery Businesses. Governmental Approvals: any notices, reports or other filings to be made, or any consents, registrations, approvals, licenses, permits or authorizations to be obtained from, any Governmental Authority, and any financial instruments or assurances required to be maintained in connection with such Governmental Approvals. Governmental Authority: any federal, state, local, foreign or international court, government, department, commission, board, bureau or agency, or any other regulatory, administrative or governmental authority, including the NYSE. Group: the Parent Group or the Technologies Group. Hazardous Substances: any substance (including petroleum and petroleum derivatives and products) that (i) is defined, listed or identified as a "hazardous waste," 7 "hazardous material" or "hazardous substance" under CERCLA or the Solid Waste Disposal Act or any analogous state Law or (ii) requires investigation, removal or remediation under an applicable Environmental Law. Indemnifiable Losses: all Losses suffered (and not actually reimbursed by insurance proceeds) by an Indemnitee, including any reasonable out-of-pocket fees, costs or expenses of enforcing any indemnity hereunder; provided that -------- "Indemnifiable Losses" shall not include: (i) any special, indirect, incidental, punitive or consequential damages whatsoever of any Indemnitee, including, without limitation, damages for lost profits and lost business opportunities, arising in connection with any Action other than any Action by any Person (including, without limitation, any Governmental Authority) who is not a party to this Agreement or an Affiliate or Subsidiary of such a party; or (ii) any such Losses caused by, resulting from or arising out of the gross negligence, willful misconduct or fraud of such Indemnitee. Indemnifying Party: a Person who or which is obligated under this Agreement to provide indemnification. Indemnitee: a Person who or which may seek indemnification under this Agreement. Indemnity Payment: an amount that an Indemnifying Party is required to pay to or in respect of an Indemnitee pursuant to Article IV. ---------- Information: all records, books, contracts, instruments, computer data and other data and information. Initial Calculation Date: March 31, 2001. Insurance Proceeds Agreement: the Insurance Proceeds Agreement between Parent and Technologies, substantially in the form of Exhibit I hereto, --------- with such changes as are acceptable to Parent and Technologies. Intellectual Property Rights: (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof; (b) all trademarks, service marks, trade dress, logos, trade names, and corporate names, together with all translations, adaptations, derivation, and combinations thereof and including all goodwill associated therewith ("Marks"), including registered and unregistered Marks and all applications, registrations, and renewals in connection with the Marks; (c) all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith, all computer software (including data and related documentation), all websites as well as supporting HTML coding and source code, all mask works and all applications, registrations, and renewals in connection therewith; (d) all trade secrets and confidential information, including ideas, research and development, know-how, proprietary processes and formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, 8 customer and supplier lists, pricing and cost information, and business and marketing plans and proposals; (e) any income, royalties and payments which accrue as of the IPO Closing or thereafter with respect to any of the foregoing items, including payments for past, present or future infringements or misappropriation thereof, the right to sue and recover for past infringements or misappropriation thereof; (f) any goodwill associated with any of the foregoing; (g) all other proprietary rights; and (h) all copies and tangible embodiments thereof (in whatever form or medium). Intended Offering Notice: as defined in Section 9.2(a) hereof. -------------- Internal Spin-Off: that certain transaction whereby Intermountain Research and Development Corporation shall distribute all of the shares of FMC International A.G. to Parent. IPO: as defined in the Recitals hereto. IPO Date: the date of the closing of the IPO in accordance with Article III hereof and the Underwriting Agreements. - ----------- IPO Registration Statement: the registration statement on Form S-1 of Technologies under the Securities Act relating to the Technologies Common Stock to be issued in the IPO. Liabilities: any and all losses, claims, charges, debts, demands, actions, causes of action, lawsuits, damages, obligations, payments, costs, fees and expenses, sums of money, bonds, indemnities and similar obligations, covenants, contracts, controversies, agreements, promises, omissions, guarantees, make whole agreements and similar obligations, and other liabilities, including all contractual obligations, whether absolute or contingent, inchoate or otherwise, matured or unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown, whenever arising, and including those arising under any law, rule, regulation, Action, threatened or contemplated Action (including the costs, fees and expenses of demands, assessments, judgments, settlements and compromises relating thereto and out-of- pocket attorneys' costs, fees and expenses and any and all costs and expenses incurred in investigating, preparing or defending against any such Actions or threatened or contemplated Actions), order or consent decree of any Governmental Authority or any award of any arbitrator or mediator of any kind, and those arising under any contract, commitment or undertaking, including those arising under this Agreement or any Ancillary Agreement, in each case, whether or not recorded or reflected or required to be recorded or reflected on the books and records or financial statements of any Person. Losses: losses, Liabilities, damages, claims, demands, judgments, fines, penalties, obligations, payments, costs, fees, expenses, Actions or settlements of any nature or kind, including all reasonable out-of-pocket costs, fees and expenses (legal, accounting or otherwise as such costs are incurred) relating thereto. Non-Technologies Business: any business or operation of the Parent or a Parent Subsidiary other than a Technologies Business. 9 Non-Technologies Business Transfer: a transaction whereby a Non- Technologies Business is transferred to Technologies or a Technologies Subsidiary. NYSE: New York Stock Exchange, Inc. Parent: as defined in the Recitals hereto. Parent Assets: all of the Assets owned by Parent or its Subsidiaries, other than the Technologies Assets. Parent Business: all businesses and operations (including related joint ventures and alliances) of Parent, other than the Technologies Business. Parent Group: Parent and its Subsidiaries other than members of the Technologies Group. Parent Indemnitees: Parent, each Affiliate of Parent and each of their respective Representatives and each of the heirs, executors, successors and assigns of any of the foregoing. Parent Liabilities: all of the Liabilities of Parent and its Subsidiaries, other than the Technologies Liabilities. Parent Common Stock: shares of Common Stock, par value $.01 per share, of Parent. Parent Subsidiaries: all direct and indirect Subsidiaries of Parent other than Technologies and the Technologies Subsidiaries. Parent Technologies Shares: all issued and outstanding shares of Technologies Common Stock owned by Parent or any member of the Parent Group. Person: an individual, a partnership, a joint venture, a corporation, a limited liability company, a trust, an unincorporated organization or a government or any department or agency thereof. Piggy-back Notice: as defined in Section 9.2(a) hereof. -------------- Piggy-back Shares: as defined in Section 9.2(a) hereof. -------------- Pre-Distribution Period: as defined in the Tax Sharing Agreement. Product Liabilities: all Losses, whether direct or indirect, known or unknown, current or potential, past, present or future, with respect to bodily injury, personal injury, property damage or other wrongs arising from the use, consumption or services related to products of a Discontinued Machinery Business. Product Liabilities exclude all Liabilities arising out of or in connection with the use or manufacture of products containing asbestos by a Discontinued Machinery Businesses. 10 Real Property: real property of whatever nature, including all easements and rights of way, servitudes, leases, subleases, permits, licenses, options and other real property rights and interests, as an owner, mortgagee or holder of a security interest in real property, lessor, sublessor, lessee, sublessee or otherwise, and all rights, title and interests in and to all buildings, fixtures and improvements thereon. Record Date: the close of business on the date to be determined by the Board of Directors of Parent as the record date for determining shareholders of Parent entitled to receive shares of Technologies Common Stock in the Distribution. Registrable Shares: as defined in Section 9.3(g) hereof. -------------- Registration Statement: as defined in Section 9.3 hereof. ----------- Representative: with respect to any Person, any of such Person's directors, officers, employees, agents, consultants, advisors, accountants, attorneys and representatives. Release: anything defined as a "release" under CERCLA or the Solid Waste Disposal Act. Remedial Action: any and all measures necessary to reduce the level of Hazardous Substances to levels which comply with Remediation Standards. Remediation Standards: the least stringent standards for performing a Remedial Action that are required pursuant to Environmental Laws applicable where the property subject to Remedial Action is based. SEC: the Securities and Exchange Commission. Securities Act: the Securities Act of 1933, as amended, together with the rules and regulations promulgated thereunder. Separation: as defined in the Recitals to this Agreement. Shared Facilities: Shared Regional Headquarters and any production facilities, manufacturing sites, warehouses, distribution centers, sales offices, data processing centers, administrative offices or other facilities (whether owned or leased) of Parent or any of its Subsidiaries in which operations of both the Technologies Business and the Parent Business are conducted as at the Assumption Time, including, without limitation, those listed on Schedule A hereto. ---------- Shared Regional Headquarters: regional headquarters of Parent in which services are provided, as at the Assumption Time, to both the Technologies Business and the Parent Business set forth on Schedule B hereto. ---------- Spin-Off: a special dividend by Parent of Parent Technologies Shares on a pro rata basis to holders of shares of Parent Common Stock, other than shares held in the treasury of Parent. 11 Split-Off: an exchange offer by Parent in which holders of shares of Parent Common Stock other than shares held in the treasury of Parent would be offered the option of tendering all or a portion of their shares of Parent Common Stock in exchange for Parent Technologies Shares. Subsidiary: with respect to any specified Person, any corporation or other legal entity of which such Person or any of its subsidiaries controls or owns, directly or indirectly, more than 50% of the stock or other equity interest entitled to vote on the election of members to the board of directors or similar governing body. Synthetic Lease: the transactions documented pursuant to the Participation Agreement, dated as of December 23, 1999 (the "Participation Agreement"), among FMC Corporation, as Lessee, Select Assets Trust I, as Lessor, Wilmington Trust Company, not in individual capacity except as expressly stated therein, but solely as Trustee, Advantage Asset Securitization Corp., as Note Purchaser, the Various Liquidity Banks party from time to time to the Liquidity Agreement referred to therein, FBTC Leasing Corp., as Certificate Holder, The Fuji Bank and Trust Company, as Collateral Agent, and the Liquidity Agent, party from time to time to the Liquidity Agreement referred to therein and the Operative Documents (as defined in the Participation Agreement). Tax: as defined in the Tax Sharing Agreement. Tax Sharing Agreement: the Tax Sharing Agreement between Parent and Technologies, substantially in the form of Exhibit B hereto, with such changes --------- as are acceptable to Parent and Technologies. Technologies: as defined in the Recitals hereto. Technologies Assets: (1) except as expressly provided in the Ancillary Agreements, all Assets reflected on the Technologies Balance Sheet as set forth in the IPO Registration Statement or the accounting records supporting the Technologies Balance Sheet and all Assets of either Group acquired between December 31, 2000 and the Assumption Time which would have been included on the Technologies Balance Sheet had they been owned on December 31, 2000, excluding any Assets sold or otherwise disposed of on or prior to the Assumption Time; (2) all Assets primarily related to the Technologies Business at the Assumption Time that are owned, leased, licensed or held by any member of either Group at the Assumption Time; (3) all Real Property held by members of either Group primarily used in the Technologies Business; (4) all of the outstanding shares of all classes of capital stock or similar interests of the Technologies Subsidiaries to the extent owned by any member of the Parent Group and the partnership, joint venture, limited liability companies, limited liability partnerships and other equity interests and interests in consortia, alliances and similar arrangements primarily related to the Technologies Business, including, without limitation, those shares of capital stock and other interests listed on Schedule D; (5) the ---------- rights of Technologies under any insurance policies and insurance contracts as provided in any Ancillary Agreement; (6) all computers, desks, furniture, equipment and other assets used primarily by employees of Parent who will become employees of Technologies pursuant to the Benefits Agreement; (7) all right, title and interest in and to all Foreign Exchange Contracts entered into in connection with 12 the Technologies Business; and (8) all right, title and interest in and to all the Synthetic Lease; (9) all of the Assets listed on Schedule E; provided that: ---------- -------- (a) Intellectual Property Rights shall be Technologies Assets in the form and to the extent provided in Section 2.1(d); and -------------- (b) Technologies Assets shall not include the Assets set forth on Schedule F. ---------- Technologies Balance Sheet: the audited combined balance sheet of Technologies as of December 31, 2000, and the notes thereto, as set forth in the IPO Registration Statement. Technologies Business: (1) all businesses, operations or products (including related joint ventures and alliances) of the Energy Systems and Specialty Systems businesses of Parent and its Subsidiaries and Affiliates (whether or not currently owned, used or occupied by the Parent and its Subsidiaries or Affiliates) as of December 31, 2000; (2) all Closed Machinery Businesses; and (3) any business, operation or product line acquired or created by any member of the Energy Systems and Specialty Systems business at any time after December 31, 2000. Technologies Common Stock: as defined in the Recitals to this Agreement. Technologies Group: Technologies and the Technologies Subsidiaries. Technologies Indemnitees: Technologies, each Affiliate of Technologies and each of their respective Representatives and each of the heirs, executors, successors and assigns of any of the foregoing. Technologies Liabilities: (1) except as expressly provided in the Ancillary Agreements, all Liabilities reflected on the Technologies Balance Sheet as set forth in the IPO Registration Statement or the accounting records supporting such Technologies Balance Sheet and all Liabilities of either Group incurred or arising between December 31, 2000 and the Assumption Time which would have been included on the Technologies Balance Sheet had they been incurred or arisen on or prior to December 31, 2000, excluding those Liabilities (or portions thereof) that have been satisfied, paid or discharged prior to the Assumption Time; (2) except as expressly provided in the Ancillary Agreements, all Liabilities relating primarily to or arising primarily from the Technologies Assets or the Technologies Business, whether incurred or arising prior to, on or after the Assumption Time; (3) all Liabilities assumed by any member of the Technologies Group under an express provision of this Agreement or any Ancillary Agreement; (4) all Auto Liabilities, General Liabilities and Product Liabilities of the Discontinued Machinery Businesses; and (5) all Environmental Liabilities primarily related to the Technologies Business, Real Property transferred to the Technologies Group as part of the Technologies Assets or any other property owned, operated, used or leased in the course of operating any Technologies Business at any time or any other property where the Technologies Business contracted or arranged for disposal at any time (except that any Environmental Liabilities related to sites where both a Parent Business and a Technologies Business are liable shall be allocated between such Business based on the pro rata contribution of each Business); (6) all Liabilities related to or incurred in the manufacture of products of the Technologies Business sold to Third Parties by any member of either Group; (7) all Liabilities under the Financing Facilities and the Synthetic Lease; (8) Liabilities for Taxes in the amount of 13 $8,828,965 in excess of that amount specifically allocated under the Tax Sharing Agreement; (9) all Liabilities of the Technologies Group arising under this Agreement; provided, that Technologies Liabilities shall not, in any event, -------- include the Liabilities set forth on Schedule H. ---------- Technologies Rights: the preferred share purchase rights of Technologies to be issued pursuant to the Technologies Rights Plan. Technologies Rights Plan: the Preferred Share Purchase Rights Agreement of Technologies, substantially in the form of Exhibit F hereto, with --------- such changes as are acceptable to Parent and Technologies. Technologies Subsidiaries: all direct and indirect Subsidiaries of Technologies, including foreign subsidiaries of Technologies to be transferred to or to be formed in connection with the Separation and the Foreign Transfers and any Subsidiary to be formed on or after the date hereof or Section 2.3 ----------- hereof, including the Subsidiaries set forth on Schedule I hereto. ---------- Third-Party Claim: any claim, lawsuit, derivative suit, arbitration, inquiry, proceeding or investigation by or before any court, any governmental or other regulatory or administrative agency or commission or any arbitration tribunal asserted by a Person who or which is neither a party hereto nor an Affiliate of a party hereto. Trademark License Agreement: the Trademark License Agreement between Parent and Technologies, substantially in the form of Exhibit H, with such --------- changes as are acceptable to Parent and Technologies. Transition Services Agreement: the Transition Services Agreement between Parent and Technologies, substantially in the form of Exhibit C hereto, --------- with such changes as are acceptable to Parent and Technologies. Underwriting Agreements: the U.S. purchase agreement to be entered into between Technologies and the United States managing underwriters and the international purchase agreement to be entered into between Technologies and the international underwriters in each case with respect to the IPO. U.S. Transfer Taxes: any tax, charge, duty, impost or levy (including any penalties and interest thereon) imposed by the United States or any subdivision thereof in connection with the Contribution. SECTION 1.2 References to Time. All references in this Agreement ------------------ to times of the day shall be to City of Chicago time. ARTICLE II THE CONTRIBUTION SECTION 2.1 Contribution. (a) On or prior to the Assumption Time ------------ but subject to Section 2.2 and Section 2.3, Parent shall assign, transfer, ----------- ----------- convey and deliver, or cause to be assigned, transferred, conveyed or delivered, to Technologies or, at Technologies' option, 14 to a Technologies Subsidiary all of Parent's and its Subsidiaries' respective rights, title and interests in all Technologies Assets. Effective as at the Assumption Time, the transfers described in this Section will result in Technologies or another member of the Technologies Group obtaining all of the rights, title and interests of Parent and its Subsidiaries in the Technologies Assets, subject to Section 2.4 and Section 2.5. ----------- ----------- (b) Effective as at the Assumption Time and subject to Section 2.2 ----------- and Section 2.3, Technologies shall, or shall cause a Technologies Subsidiary ----------- to, assume, pay, perform and discharge in due course all of the Technologies Liabilities in accordance with their respective terms. (c) Separation of Assets. The Technologies Assets (including Assets that are, or are contained in, the Shared Facilities) shall, to the extent reasonably practicable (including taking into account the costs of any actions taken), be severed, divided or otherwise separated from the Parent Assets so that members of the Technologies Group will own and control the Technologies Assets as at the Assumption Time and members of the Parent Group will own and control the Parent Assets as at the Assumption Time. Such separation may include subdivision of real property, subleasing or other division of shared buildings or premises and allocation of shared working capital, equipment and other Assets. Such separation shall be effected in a manner that does not unreasonably disrupt either the Technologies Business or the Parent Business and minimizes, to the extent practicable, current and future costs (and losses of Tax or other economic benefits) of the respective Businesses. With respect to any Asset that cannot reasonably be separated or otherwise allocated as provided above (i) all right, title and interest of Parent and the Parent Subsidiaries shall be allocated to the Group as to which such Asset is predominantly used or held for use or predominantly relates and (ii) the other Group shall have a right to use such Asset in its Business in a manner consistent with past practice for a period which is coterminous with the life of the Asset described in (i) (and the coextensive obligation to pay its allocable share of any costs or expenses related to such Asset pursuant to the last sentence of this Section 2.1(c)). To -------------- the extent the separation of Assets cannot be achieved in a reasonably practicable manner, the parties will enter into appropriate arrangements regarding such shared Asset. Any costs related to the use of a shared Asset that is not separated as at the Assumption Time shall be allocated based on the methodology historically used by Parent. (d) Intellectual Property. Notwithstanding the foregoing or anything else contained herein, any Intellectual Property Rights of Parent or any of its Subsidiaries shall be licensed to or assigned, transferred or conveyed to Technologies, as the case may be, as follows: (1) With respect to Intellectual Property Rights used or held for use primarily in connection with the Technologies Business ("Technologies Group IP"), including but not limited to the --------------------- Intellectual Property Rights listed in Schedule 2.1(d), --------------- Technologies shall have full ownership (to the extent of Parent's rights therein) of such rights; 15 (2) Except as otherwise provided in Schedule 2.1(d), with respect to --------------- Technologies Group IP used or held for use in both the Technologies Business and the Parent Business on or before the Assumption Time, the Parent Group shall have a non-exclusive, worldwide, fully-paid, perpetual, royalty-free license, with the right to grant sublicenses in the ordinary course of an on-going business, to all rights therein only to the extent it was used or held for use by the Parent Business on or before the Assumption Time. (3) Except as otherwise provided in Schedule 2.1(d), with respect to --------------- Intellectual Property Rights other than Technologies Group IP that are used or held for use in both the Technologies Business and the Parent Business on or before the Assumption Time, title to such rights shall be owned by the Parent Group, and the Technologies Group shall have a non-exclusive, worldwide, fully- paid, perpetual, royalty-free license, with the right to grant sublicenses in the ordinary course of an ongoing business, to all rights in the Intellectual Property Rights only to the extent it was used or held for use by the Technologies Business on or before the Assumption Time. (4) The licenses specified in this Section shall not restrict the subsequent transfer or license by the licensee (within the applicable field of use) of the Intellectual Property Rights. (e) Notwithstanding the foregoing or anything else contained herein, the transfer of the Technologies Assets, and assumption of the Technologies Liabilities, primarily related to FranRica Systems located in Stockton, California and Food Process Systems located in Madera, California shall be effected as provided in the California Separation and Transfer Agreement attached as Exhibit G. --------- (f) The fees, costs and expenses (and other out-of-pocket losses) attributable to the Contribution shall be allocated pursuant to Schedule 2.1(f). --------------- SECTION 2.2 Conditions Precedent to Consummation of the ------------------------------------------- Contribution. The obligations of the parties to consummate the Contribution - ------------ shall be conditioned on the satisfaction, or waiver by Parent, of the following conditions: (a) Final approval of the Contribution shall have been given by the Board of Directors of Parent in its sole discretion; and (b) The conditions precedent to the consummation of the IPO set forth in Section 3.4 hereof shall have been satisfied or waived pursuant to such ----------- Section 3.4. - ----------- SECTION 2.3 Certain Foreign Transfers. (a) Parent shall use its ------------------------- reasonable best efforts to effect the legal separation of the Technologies Assets and Technologies Liabilities, on the one hand, from the Parent Assets and Parent Liabilities, on the other hand, that are located in jurisdictions outside the United States prior to or at the Assumption Time. If all of the transactions necessary to effectuate such legal separation in jurisdictions outside the United 16 States are not completed on or before the Assumption Time, and such failure delays the legal separation of such Technologies Assets and Technologies Liabilities, on one hand, from Parent Assets and Parent Liabilities, on the other hand, within the United States, then Parent shall use its reasonable best efforts to complete such legal separation as soon as practicable at the Assumption Time or as promptly as practicable thereafter. Such separation shall be effected pursuant to the transactions (including asset transfers, stock transfers, spin-offs, mergers, demergers, reorganizations, consolidations and other transfers) set forth on Schedule 2.3(a) hereto, which may be effected --------------- before, simultaneously with or after the consummation of the IPO as described on such Schedule (collectively, the "Foreign Transfers"). Any Foreign Transfer that ----------------- occurs after the Assumption Time shall be effected pursuant to a binding commitment in existence at the Assumption Time. (b) The Foreign Transfer Taxes and U.S. Transfer Taxes shall be borne by Technologies. (c) If, in order to complete a material Foreign Transfer of Technologies Assets and Technologies Liabilities, prior to the Assumption Time it becomes necessary to make a Non-Technologies Business Transfer, then as promptly as practicable following the Non-Technologies Business Transfer, Technologies shall, or shall cause the member of the Technologies Group, to transfer the Non-Technologies Business to Parent. Technologies shall remit to Parent, or the appropriate member of the Parent Group as directed by Parent, all cash flows generated by any Non-Technologies Business from and including the Assumption Time to and including the date of such transfer. In addition, Technologies shall bear all Foreign Transfer Taxes associated with transferring any Non-Technologies Business back to Parent. (d) Notwithstanding anything herein to the contrary, to the extent that as a result of any of the Foreign Transfers, goodwill or other non-patented intangible property of the Technologies Business remains in the Parent or any member of Parent Group, then Parent shall, and shall cause any member of Parent Group to, (i) undertake all reasonable action to ensure that such goodwill or non-patented intellectual property is transferred to Technologies as promptly as practicable; and (ii) until such transfer is completed, neither Parent nor any Parent Subsidiaries shall use such goodwill or non-patented intellectual property. (e) Notwithstanding anything herein to the contrary, to the extent that as a result of any of the Foreign Transfers, goodwill or other non-patented intangible property related to any business other than the Technologies Business remains in Technologies or any member of Technologies Group, then Technologies shall, and shall cause any member of Technologies Group to, (i) undertake all reasonable action to ensure that such goodwill or other non-patented intellectual property is transferred to Parent as promptly as practicable; and (ii) until such transfer is completed, neither Technologies nor any Technologies Subsidiaries shall use such goodwill or non-patented intellectual property. SECTION 2.4 Ancillary Agreements. (a) Each of Parent and -------------------- Technologies shall, on or prior to the IPO Date, enter into, or cause the appropriate members of the Group of which it is a member to enter into, the Ancillary Agreements in connection with the Separation, including, without limitation, (i)(A) such bills of sale, stock powers, certificates of title, assignments of contracts and other instruments of transfer, conveyance and assignment as and to 17 the extent necessary to evidence the transfer, conveyance and assignment (including the Foreign Transfers) of all of Parent's and its respective Subsidiaries' right, title and interest in and to the Technologies Assets to Technologies or a Technologies Subsidiary pursuant to Section 2.1 and (B) such ----------- bills of sale, stock powers, certificates of title, assumptions of contracts and other instruments of assumption as and to the extent necessary to evidence the valid and effective assumption of the Technologies Liabilities by Technologies or a Technologies Subsidiary pursuant to Section 2.1, and (ii) agreements with ----------- respect to (A) insurance procedures, (B) transition services pursuant to the Transition Services Agreement or any appropriate foreign transition services agreement, (C) intellectual property licenses as contemplated by Section 2.1(d), -------------- (D) the Tax Sharing Agreement; (E) the Benefits Agreement, (F) the Trademark License Agreement, (G) an agreement relating to certain transfers and assumptions contemplated by Section 2.1(e), and (H) other matters as may be -------------- advisable. The Ancillary Agreements (or, in the case of the forms of agreement attached hereto, any amendments thereto) shall be on terms reasonably acceptable to Parent and Technologies. (b) The parties acknowledge and agree that operation by members of the Parent Group or Technologies Group of the Shared Facilities after the Assumption Time may continue to require the joint occupation or use by the parties of certain related premises or facilities (such as waste disposal, utilities, security and other matters). The parties shall enter into appropriate arrangements regarding cost allocation and service provision with respect to these matters, which allocation shall be as described in Section 2.1(f). The -------------- agreements described in this paragraph (b) shall be included in the Ancillary Agreements. SECTION 2.5 Transfers Not Effected Prior to the Separation; ----------------------------------------------- Transfers Deemed Effective as at the Assumption Time. To the extent that any - ---------------------------------------------------- transfers contemplated by this Article II shall not have been consummated at the ---------- Assumption Time, including, without limitation, any Foreign Transfers, the parties shall cooperate to effect such transfers as promptly following the Assumption Time as shall be practicable. Nothing herein shall be deemed to require the transfer of any Assets or the assumption of any Liabilities which by their terms or operation of law cannot be transferred or assumed; provided, -------- however, that Parent and Technologies and their respective Subsidiaries shall - ------- cooperate to obtain any necessary consents or approvals for the transfer of all Assets and Liabilities contemplated to be transferred pursuant to this Article ------- II. In the event that any such transfer of Assets or Liabilities has not been - -- consummated effective as of and after the Assumption Time, the party retaining such Asset or Liability shall thereafter hold such Asset in trust for the use and benefit of the party entitled thereto (at the expense of the party entitled thereto) and retain such Liability for the account of the party by whom such Liability is to be assumed pursuant hereto, and take such other action as may be reasonably requested by the party to which such Asset is to be transferred, or by whom such Liability is to be assumed, as the case may be, in order to place such party, insofar as reasonably possible, in the same position as would have existed had such Asset or Liability been transferred as contemplated hereby. As and when any such Asset or Liability becomes transferable, such transfer shall be effected forthwith. The parties agree that, as at the Assumption Time, each party hereto shall be deemed to have acquired complete and sole beneficial ownership over all of the Assets, together with all rights, powers and privileges incident thereto, and shall be deemed to have assumed in accordance with the terms of this Agreement all of the Liabilities, and all duties, obligations and responsibilities incident thereto, 18 which such party is entitled to acquire or required to assume pursuant to the terms of this Agreement. SECTION 2.6 Assumption of Debt. On or before the Assumption Time, ------------------ Parent and Technologies shall jointly determine the amount that should be drawn down under the Financing Facilities and assumed by Technologies as provided in Schedule 2.6. - ------------ SECTION 2.7 Certificate of Incorporation; By-laws; Rights Plan. -------------------------------------------------- Prior to the consummation of the IPO, Parent and Technologies shall take all action necessary so that the Amended and Restated Certificate of Incorporation, the Amended and Restated By-laws and the Technologies Rights Plan shall be in effect prior to the closing of the IPO, each substantially in the form of Exhibits D, E and F hereto, respectively (with such changes as Parent and - ---------- -- -- Technologies may find acceptable). ARTICLE III THE IPO AND ACTIONS PENDING THE IPO SECTION 3.1 Transactions Prior to the IPO. Subject to the ----------------------------- conditions specified in Section 3.4, Parent and Technologies shall use their ----------- reasonable best efforts to take all actions necessary to consummate the IPO. SECTION 3.2 Proceeds. The IPO will be a primary offering of -------- Technologies Common Stock and the net proceeds of the IPO will be used by Technologies to reduce the amount of indebtedness under the Financing Facilities. SECTION 3.3 Costs and Expenses. Technologies shall pay all third ------------------ party costs, fees and expenses relating to the IPO and Contribution, all of the reimbursable expenses of the managing underwriters pursuant to the Underwriting Agreements, all of the costs of producing and filing the IPO Registration Statement and printing, mailing and otherwise distributing the prospectus contained in the IPO Registration Statement, as well as the underwriters' discount as provided in the Underwriting Agreements. SECTION 3.4 Conditions Precedent to Consummation of the IPO. The ----------------------------------------------- obligations of the parties to consummate the IPO shall be conditioned on the satisfaction, or waiver by Parent, of the following conditions: (a) Final approval of the IPO shall have been given by the Board of Directors of Parent in its sole discretion. (b) The IPO Registration Statement shall have been filed and declared effective by the SEC, and there shall be no stop-order in effect with respect thereto. (c) The actions and filings necessary or appropriate under state securities and Blue Sky laws of the United States (and any comparable laws under any foreign jurisdictions) in connection with the IPO shall have been taken and, where applicable, have become effective or been accepted. 19 (d) The Technologies Common Stock to be issued in the IPO shall have been accepted for listing on the NYSE, on official notice of issuance. (e) Technologies shall have entered into the Underwriting Agreements and all conditions to the obligations of Technologies and the managing underwriters shall have been satisfied or waived. (f) No order, injunction or decree issued by any court or agency of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Separation, the Contribution, the IPO or the Distribution or any of the other transactions contemplated by this Agreement or any Ancillary Agreement shall be in effect. (g) This Agreement shall not have been terminated. (h) All Consents and Governmental Approvals required in connection with the Contribution and the IPO shall have been received, except where the failure to obtain such consents or approvals would not have a material adverse effect on either (A) the ability of the parties to consummate the transactions contemplated by this Agreement and the Ancillary Agreements or (B) the business, assets, liabilities, financial condition or results of operations of Technologies and its Subsidiaries, taken as a whole. ARTICLE IV THE DISTRIBUTION SECTION 4.1 Record Date and Distribution Date. Subject to the --------------------------------- satisfaction of the conditions set forth in Section 4.6, the Board of Directors ----------- of Parent shall establish the Record Date and the Distribution Date, as applicable, and any appropriate procedures in connection with a Distribution. SECTION 4.2 The Agent. Prior to the Distribution Date, Parent shall --------- enter into an agreement with the Agent providing for, among other things, the completion of the Distribution in accordance with this Article IV. ---------- SECTION 4.3 Delivery of Share Certificates to the Agent. Prior to ------------------------------------------- the Distribution Date, Parent shall deliver to the Agent a share certificate representing (or authorize the related book-entry transfer of) all of the outstanding shares of Technologies Common Stock to be distributed in connection with the completion of the Distribution. After the Distribution Date, upon the request of the Agent, Technologies shall provide all certificates for shares (or book-entry transfer authorizations) of Technologies Common Stock that the Agent shall require in order to effectuate the Distribution. SECTION 4.4 Actions Prior to the Distribution. (a) Parent and --------------------------------- Technologies shall prepare and mail, to holders of Parent Common Stock, such information concerning Technologies and its business, operations and management, the Distribution and such other matters as Parent shall reasonably determine and as may be required by law, including the Securities Act and Exchange Act, if applicable (the "Distribution Information Statement"). Parent and Technologies ---------------------------------- will prepare, and, to the extent required under applicable law, file with 20 the SEC such Distribution Information Statement and any requisite no-action letters which Parent determines are necessary or desirable to effectuate the Distribution and Parent and Technologies shall each use their respective reasonable best efforts to obtain all necessary approvals from the SEC with respect thereto, if any, as soon as practicable. (b) Parent and Technologies shall take all such action as Parent may determine necessary or appropriate under state securities or blue sky laws of the United States (and any comparable laws under any foreign jurisdiction) in connection with the Distribution. SECTION 4.5 The Distribution. (a) Subject to the terms and ---------------- conditions of this Agreement, in the event that Distribution is effected by means of a Spin-Off, each holder of Parent Common Stock on the Record Date (or such holder's designated transferee or transferees) will be entitled to receive in the Distribution a number of shares of Technologies Common Stock equal to the number of shares of Parent Common Stock held by such holder on the Record Date multiplied by a fraction, the numerator of which is the number of shares of Technologies Common Stock beneficially owned by Parent or any other member of the Parent Group on the Record Date (after giving effect to the IPO) and the denominator of which is the number of shares of Parent Common Stock outstanding on the Record Date. (b) Subject to the terms and conditions of this Agreement, in the event that the Distribution is effected by means of a Split-Off, Parent shall determine in its discretion the exchange ratio that provides for the number of Parent Technologies Shares to be offered per share of Parent Common Stock in such Split-Off. (c) No certificates representing fractional shares of Technologies Common Stock shall be distributed in the Distribution. Parent shall direct the Agent (1) to determine the number of whole shares and fractional shares of Technologies Common Stock to be issued in the Distribution as soon as practicable after such determination is feasible and (2) as soon as practicable thereafter to aggregate all such fractional shares and sell the whole shares obtained thereby in open market transactions or otherwise, in each case at then prevailing trading prices, and to cause to be distributed to the holders of Parent Common Stock entitled to receive such proceeds in lieu of fractional shares an amount in cash equal to such holder's ratable share of the proceeds of such sale, without interest, after making appropriate deductions of the amount required to be withheld for federal income tax purposes and after deducting an amount equal to all brokerage charges, commissions and transfer taxes attributed to such sale. SECTION 4.6 Conditions to Obligations. The obligations of the ------------------------- parties hereto to consummate the Distribution are subject to the satisfaction, or waiver by Parent, of each of the following conditions: (a) Final approval of the Distribution shall have been given by the Board of Directors of Parent in its sole discretion. (b) The actions and filings necessary or appropriate under federal and state securities laws and state blue sky laws of the United States (and any comparable laws under any foreign jurisdictions) in connection with the Distribution (including, if 21 applicable, any actions and filings relating to the Distribution Information Statement) shall have been taken and, where applicable, have become effective or been accepted. (c) The Technologies Common Stock to be issued in the Distribution shall have been accepted for listing on the NYSE, subject to official notice of issuance. (d) No order, injunction or decree issued by any court or agency of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Separation, the Contribution, the IPO or the Distribution or any of the other transactions contemplated by this Agreement or any Ancillary Agreement shall be in effect. (e) A private letter ruling from the Internal Revenue Service, in form and substance satisfactory to Parent, shall have been obtained, and shall continue in effect, to the effect that no gain or loss will be recognized by Parent, Technologies, or Parent's or Technologies' shareholders for federal income tax purposes as a result of (i) the IPO; (ii) the Distribution, (iii) the Contribution; and (iv) the Internal Spin-Off. (f) All Consents and Governmental Approvals required in connection with the transactions contemplated hereby shall have been received, except where the failure to obtain such consents or approvals would not have a material adverse effect on either (A) the ability of the parties to consummate the transactions contemplated by this Agreement and the Ancillary Agreements or (B) the business, assets, liabilities, financial condition or results of operations of Technologies and its Subsidiaries, taken as a whole. (g) Any adjustment to be made pursuant to Section 2.6 shall have been ----------- agreed upon by Parent and Technologies. (h) This Agreement shall not have been terminated. SECTION 4.7 Costs and Expenses. Parent shall pay all third party ------------------ costs, fees and expenses relating to the Distribution. SECTION 4.8 Satisfaction or Waiver. Any determination made by the ---------------------- Board of Directors of Parent on behalf of such party hereto prior to the Distribution Date concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 4.8 shall be conclusive. ----------- ARTICLE V SURVIVAL AND INDEMNIFICATION SECTION 5.1 Survival of Agreements. All covenants and agreements ---------------------- of the parties contained in this Agreement shall survive each of the Contribution, the IPO and the Distribution. SECTION 5.2 Indemnification. (a) Except as specifically otherwise --------------- provided in the Ancillary Agreements and without regard as to when any transfer, sale, disposition or other conveyance (including, without limitation, the Foreign Transfers) is completed, from and 22 after Assumption Time the Parent Group shall indemnify, defend and hold harmless the Technologies Indemnitees from and against (i) all Indemnifiable Losses relating to, arising out of or resulting from the failure of any member of the Parent Group (x) to pay, perform or otherwise promptly discharge any Parent Liabilities (including, without limitation, all Liabilities specifically excluded from the definition of Technologies Liabilities herein), whether such Indemnifiable Losses relate to events, occurrences or circumstances occurring or existing, or whether such Indemnifiable Losses are asserted, before or after the Distribution Date, or (y) to perform any of its obligations under this Agreement (including the obligation to effect the transfers as provided in the last sentence of Section 2.1(a)); and (ii) all Indemnifiable Losses relating to, --------------- arising out of or resulting from the Parent Business and any Parent Liability. (b) Except as specifically otherwise provided in the Ancillary Agreements and without regard as to when any transfer, sale, disposition or other conveyance (including, without limitation, the Foreign Transfers) is completed, from and after the Assumption Time, the Technologies Group shall indemnify, defend and hold harmless the Parent Indemnitees from and against (i) all Indemnifiable Losses relating to, arising out of or resulting from the failure of any member of the Technologies Group (x) to pay, perform or otherwise promptly discharge any Technologies Liabilities, whether such Indemnifiable Losses relate to events, occurrences or circumstances occurring or existing, or whether such Indemnifiable Losses are asserted, before or after the Distribution Date, or (y) to perform any of its obligations under this Agreement; (ii) all Indemnifiable Losses relating to, arising out of or resulting from the Technologies Business and any Technologies Liability; and (iii) all Indemnifiable Losses arising out of or based upon any untrue statement or alleged untrue statement of a material fact, or omission or alleged omission to state a material fact required to be stated, in any portion of the IPO Registration Statement or the Distribution Information Statement (or any preliminary or final form thereof or any amendment thereto), or necessary to make the statements therein not misleading. (c) If any Indemnity Payment required to be made hereunder or under any Ancillary Agreement is denominated in a currency other than United States dollars, such payment shall be made in United States dollars and the amount thereof shall be computed using the Foreign Exchange Rate for such currency determined as of the date on which such Indemnity Payment is made. SECTION 5.3 Procedures for Indemnification for Third-Party Claims. ----------------------------------------------------- (a) Parent shall, and shall cause the other Parent Indemnitees to, notify Technologies in writing promptly after learning of any Third-Party Claim for which any Parent Indemnitee intends to seek indemnification from Technologies under this Agreement. Technologies shall, and shall cause the other Technologies Indemnitees to, notify Parent in writing promptly after learning of any Third-Party Claim for which any Technologies Indemnitee intends to seek indemnification from Parent under this Agreement. The failure of any Indemnitee to give such notice shall not relieve any Indemnifying Party of its obligations under this Article V except to the extent that such Indemnifying Party or its --------- Affiliate is actually prejudiced by such failure to give notice. Such notice shall describe such Third-Party Claim in reasonable detail considering the Information provided to the Indemnitee. (b) Except as otherwise provided in paragraph (c) of this Section ------- 5.3, an Indemnifying Party may, by notice to the Indemnitee and to Parent, if - --- Technologies is the 23 Indemnifying Party, or to the Indemnitee and Technologies, if Parent is the Indemnifying Party, at any time after receipt by such Indemnifying Party of such Indemnitee's notice of a Third-Party Claim, undertake (itself or through another member of the Group of which the Indemnifying Party is a member) the defense or settlement of such Third-Party Claim. If an Indemnifying Party undertakes the defense of any Third-Party Claim, such Indemnifying Party shall thereby admit its obligation to indemnify the Indemnitee against such Third-Party Claim, and such Indemnifying Party shall control the investigation and defense or settlement thereof, and the Indemnitee may not settle or compromise such Third- Party Claim, except that such Indemnifying Party shall not (i) require any Indemnitee, without its prior written consent, to take or refrain from taking any action in connection with such Third-Party Claim, or make any public statement, which such Indemnitee reasonably considers to be against its interests, or (ii) without the prior written consent of the Indemnitee and of Parent, if the Indemnitee is a Parent Indemnitee, or the Indemnitee and of Technologies, if the Indemnitee is a Technologies Indemnitee, consent to any settlement that does not include as a part thereof an unconditional release of the Indemnitees from liability with respect to such Third-Party Claim or that requires the Indemnitee or any of its Representatives or Affiliates to make any payment that is not fully indemnified under this Agreement or to be subject to any non-monetary remedy; and subject to the Indemnifying Party's control rights, as specified herein, the Indemnitees may participate in such investigation and defense, at their own expense. Following the provision of notices to the Indemnifying Party, until such time as an Indemnifying Party has undertaken the defense of any Third-Party Claim as provided herein, such Indemnitee shall control the investigation and defense or settlement thereof, without prejudice to its right to seek indemnification hereunder. (c) If an Indemnitee reasonably determines that there may be legal defenses available to it that are different from or in addition to those available to its Indemnifying Party which make it inappropriate for the Indemnifying Party to undertake the defense or settlement thereof, then such Indemnifying Party shall not be entitled to undertake the defense or settlement of such Third-Party Claim; and counsel for the Indemnifying Party shall be entitled to conduct the defense of such Indemnifying Party and counsel for the Indemnitee (selected by the Indemnitee) shall be entitled to conduct the defense of such Indemnitee, it being understood that both such counsel shall cooperate with each other to conduct the defense or settlement of such action as efficiently as possible. (d) In no event shall an Indemnifying Party be liable for the costs, fees and expenses of more than one counsel for all Indemnitees (in addition to its own counsel, if any) in connection with any one action, or separate but similar or related actions, in the same jurisdiction arising out of the same general allegations or circumstances. (e) Technologies shall, and shall cause the other Technologies Indemnitees to, and Parent shall, and shall cause the other Parent Indemnitees to, make available to each other, their counsel and other Representatives, all information and documents reasonably available to them which relate to any Third-Party Claim, and otherwise cooperate as may reasonably be required in connection with the investigation, defense and settlement thereof, subject to the terms and conditions of a mutually acceptable joint defense agreement. Any joint defense agreement entered into by Technologies or Parent with any third party relating to any Third-Party Claim shall provide that Technologies or Parent may, if requested, provide information obtained through any such agreement to the Technologies Indemnitees and/or the Parent Indemnitees. 24 SECTION 5.4 Remedies Cumulative. The remedies provided in this ------------------- Article V shall be cumulative and shall not preclude assertion by any Indemnitee - --------- of any other rights or the seeking of any other remedies against any Indemnifying Party. However, the procedures set forth in Section 5.3 shall be ----------- the exclusive procedures governing any indemnity action brought under this Agreement, except as otherwise specifically provided in any of the Ancillary Agreements. ARTICLE VI CERTAIN ADDITIONAL COVENANTS SECTION 6.1 Notices to Third Parties. In addition to the actions ------------------------ described in Section 6.2, the members of the Parent Group and the members of the ----------- Technologies Group shall cooperate to make all other filings and give notice to and obtain any Consent or Governmental Approval that may reasonably be required to consummate the transactions contemplated by this Agreement and the Ancillary Agreements. SECTION 6.2 Licenses and Permits. Each party hereto shall cause -------------------- the appropriate members of its Group to prepare and file with the appropriate Governmental Authorities applications for the transfer or issuance, as may be necessary or advisable in connection with the transactions contemplated by this Agreement and the Ancillary Agreements, to its Group of all material Governmental Approvals required for the members of its Group to operate its Business after the Assumption Time. The members of the Technologies Group and the members of the Parent Group shall cooperate and use all reasonable efforts to secure the transfer or issuance of the Governmental Approvals. SECTION 6.3 Intercompany Agreements; Intercompany Accounts. (a) ---------------------------------------------- All contracts, licenses, agreements, commitments or other arrangements, formal or informal, between any member of the Parent Group, on the one hand, and any member of the Technologies Group, on the other hand, in existence as at the Assumption Time, pursuant to which any member of either Group makes payments in respect of Taxes to any member of the other Group or provides to any member of the other Group goods or services (including, without limitation, management, administrative, legal, financial, accounting, data processing, insurance or technical support), or the use of any Assets of any member of the other Group, or the secondment of any employee, or pursuant to which rights, privileges or benefits are afforded to members of either Group as Affiliates of the other Group, shall terminate effective as at the Assumption Time, except as specifically provided herein or in the Ancillary Agreements. From and after the Assumption Time, no member of either Group shall have any rights under any such contract, license, agreement, commitment or arrangement with any member of the other Group, except as specifically provided herein or in the Ancillary Agreements. (b) After the Assumption Time, the parties shall be obligated to pay only those intercompany accounts between members of the Technologies Group and members of the Parent Group that arose in connection with transfers of goods and services in the ordinary course of business, consistent with past practices (which the parties shall use reasonable best efforts to settle prior to the Assumption Time), and all other intercompany accounts shall be settled by the 25 transfer of financial assets as at the Assumption Time, except as otherwise contemplated by this Agreement. SECTION 6.4 Guarantee Obligations. (a) Parent and Technologies --------------------- shall cooperate, and shall cause their respective Groups to cooperate, to terminate, or to cause a member of the Parent Group to be substituted in all respects for any member of the Technologies Group in respect of, all obligations of any member of the Technologies Group under any Parent Liabilities for which such member of the Technologies Group may be liable, as guarantor, original tenant, primary obligor or otherwise. If such a termination or substitution is not effected by the Assumption Time, (i) Parent shall indemnify and hold harmless the Technologies Indemnitees for any Indemnifiable Loss arising from or relating thereto, and (ii) without the prior written consent of any officer of Technologies who is not also an officer of Parent, from and after the Assumption Time, Parent shall not, and shall not permit any member of the Parent Group or any of its Affiliates to, renew or extend the term of, increase its obligations under, or transfer to a third party, any loan, lease, contract or other obligation for which any member of the Technologies Group is or may be liable unless all obligations of the Technologies Group with respect thereto are thereupon terminated by documentation reasonably satisfactory in form and substance to any officer of Technologies who is not also an officer of Parent; provided that the limitations in clause (ii) shall not apply in the event that a - -------- member of the Parent Group obtains a letter of credit from a financial institution reasonably acceptable to Technologies and for the benefit of Technologies with respect to such obligation of the Technologies Group. (b) Parent and Technologies shall cooperate, and shall cause their respective Groups to cooperate, to terminate, or to cause a member of the Technologies Group to be substituted in all respects for any member of the Parent Group in respect of, all obligations of any member of the Parent Group under any Technologies Liabilities for which such member of the Parent Group may be liable, as guarantor, original tenant, primary obligor or otherwise. If such a termination or substitution is not effected by the Assumption Time, (i) Technologies shall indemnify and hold harmless the Parent Indemnitees for any Indemnifiable Loss arising from or relating thereto, and (ii) without the prior written consent of any officer of Parent who is not also an officer of Technologies, from and after the Assumption Time, Technologies shall not, and shall not permit any member of the Technologies Group to, renew or extend the term of, increase its obligations under, or transfer to a third party, any loan, lease, contract or other obligation for which any member of the Parent Group is or may be liable unless all obligations of the Parent Group with respect thereto are thereupon terminated by documentation reasonably satisfactory in form and substance to any officer of Parent who is not also an officer of Technologies; provided that the limitations contained in clause (ii) shall not apply in the - -------- ----------- event that a member of the Technologies Group obtains a letter of credit from a financial institution reasonably acceptable to Parent and for the benefit of Parent with respect to such obligation of the Parent Group. SECTION 6.5 Further Assurances. (a) In addition to the actions ------------------ specifically provided for elsewhere in this Agreement, each of the parties hereto shall use its reasonable best efforts, prior to, on and after the Assumption Time, to take, or cause to be taken, all actions, and to do, or cause to be done, all things, reasonably necessary, proper or advisable under applicable laws, regulations and agreements to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements. Each of the parties hereby appoints the individuals so identified on Schedule 6.5(a) --------------- to act as its agent and attorney-in-fact 26 with full right and power to execute any instruments necessary to transfer any Asset allocated to any other Person. (b) Without limiting the foregoing, prior to, on and after the Assumption Time, each party hereto shall cooperate with the other parties, and without any further consideration, but at the expense of the requesting party, to cause to be executed and delivered all instruments, including instruments of conveyance, assignment and transfer, and to make all filings with, and to obtain all consents, approvals or authorizations of, any Governmental Authority or any other Person under any permit, license, agreement, indenture or other instrument (including any Consents or Governmental Approvals), and to take all such other actions as such party may reasonably be requested to take by any other party hereto from time to time, consistent with the terms of this Agreement and the Ancillary Agreements, in order to effectuate the provisions and purposes of this Agreement and the Ancillary Agreements and the transfers of the Technologies Assets and the assignment and assumption of the Technologies Liabilities and the other transactions contemplated hereby and thereby. On or prior to the Assumption Time, Parent and Technologies in their respective capacities as direct and indirect stockholders of their respective Subsidiaries, shall each properly ratify any actions which are reasonably necessary or desirable to be taken by Parent and Technologies, or any of their respective Subsidiaries, as the case may be, to effectuate the transactions contemplated by this Agreement. On or prior to the Assumption Time, Parent and Technologies shall take all actions as may be necessary to approve the stock-based employee benefit plans of Technologies in order to satisfy any applicable requirement, including Rule 16b- 3 under the Exchange Act, Section 162(m) of the Code and the rules and regulations of the NYSE. (c) Parent and Technologies, and each of the members of their respective Groups, waive (and agree not to assert against the other) any claim or demand that any of them may have against the other for any Liabilities or other claims relating to or arising out of: (i) the failure of Technologies or any member of the Technologies Group, on the one hand, or of Parent or any member of the Parent Group, on the other hand, to provide any notification or disclosure required under any state Environmental Law in connection with the Separation or the other transactions contemplated by this Agreement, including the transfer by any member of any Group to any member of any other Group of ownership or operational control of any Assets not previously owned or operated by such transferee; or (ii) any inadequate, incorrect or incomplete notification or disclosure under any such state Environmental Law by the applicable transferor. To the extent any Liability to any Governmental Authority or any third party arises out of any action or inaction described in clause (i) or (ii) above, the transferee of the applicable Asset hereby assumes and agrees to pay any such Liability. (d) If either party identifies any commercial or other service that is needed to assure a smooth and orderly transition of the businesses in connection with the consummation of the transactions contemplated hereby, and that is not otherwise governed by the provisions of this Agreement or any Ancillary Agreement, the parties will cooperate in determining whether there is a mutually acceptable arm's-length basis on which the other party will provide such service. SECTION 6.6 Qualification as Tax-Free Distribution. After the -------------------------------------- Assumption Time, neither Parent nor Technologies shall take, or permit any member of its respective Group 27 to take, any action which could reasonably be expected to prevent the Distribution from qualifying as a tax-free distribution within the meaning of Section 355 of the Code or any other transaction contemplated by this Agreement or any Ancillary Agreement which is intended by the parties to be tax-free from failing so to qualify. SECTION 6.7 Non-Solicitation. Neither Parent nor Technologies ---------------- shall, or shall permit any member of its respective Group to, for a period of eighteen (18) months following the Assumption Time directly or indirectly, solicit for employment or employ any employee of the other party's Group; provided, however, that neither party shall be prohibited from employing any such person whose has been terminated by a member of a Group and who contacts a member of the other Group at his or her own initiative and without any direct or indirect solicitation by such Group. Notwithstanding the foregoing, general solicitation of employment published in a journal, newspaper or any other publication of general circulation or on the worldwide web and not specifically directed towards such employees shall not be deemed to be in violation of this Section 6.7. - ----------- SECTION 6.8 Aircraft. Technologies and Parents shall equally divide --------- the amount of any gain or loss, and the payment of any tax incurred or tax benefit of any loss incurred thereby, incurred by the sale of the corporate aircraft of Parent. ARTICLE VII ACCESS TO INFORMATION SECTION 7.1 Agreement for Exchange of Information. (a) Each of ------------------------------------- Parent and Technologies, on behalf of its respective Group, agrees to provide, or cause to be provided, to the other Group, at any time before, on or after the Assumption Time, as soon as reasonably practicable after written request therefor, any Information in the possession or under the control of such respective Group which the requesting party reasonably needs (i) to comply with reporting, disclosure, filing or other requirements imposed on the requesting party (including under applicable securities or Tax laws) by a Governmental Authority having jurisdiction over the requesting party including in connection with any Registration Statement, (ii) for use in any other judicial, regulatory, administrative, Tax or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation, Tax or other similar requirements, or (iii) to comply with its obligations under this Agreement or any Ancillary Agreement; provided, however, that in the event that any party determines that -------- ------- any such provision of Information could be commercially detrimental, violate any law or agreement, or waive any attorney-client privilege, the parties shall take all reasonable measures to permit the compliance with such obligations in a manner that avoids any such harm or consequence. Parent and Technologies intend that any transfer of Information that would otherwise be within the attorney- client privilege shall not operate as a waiver of any potentially applicable privilege. Each party shall make its employees and facilities available during normal business hours and on reasonable prior notice to provide explanation of any Information provided hereunder. (b) After the Assumption Time, Technologies shall provide, or cause to be provided, to Parent in such form as Parent shall request, at no charge to Parent, all historical 28 financial and other data and Information as Parent determines necessary or advisable in order to prepare Parent financial statements and reports or filings with any Governmental Authority. SECTION 7.2 Ownership of Information. Any Information owned by one ------------------------ Group that is provided to a requesting party pursuant to Section 7.1 shall be ----------- deemed to remain the property of the providing party. Unless specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any such Information. SECTION 7.3 Compensation for Providing Information. The party -------------------------------------- requesting such Information agrees to reimburse the other party for the reasonable out-of-pocket costs, fees and expenses, if any, of creating, gathering and copying such Information, to the extent that such costs, fees and expenses are incurred for the benefit of the requesting party, provided that reasonable detail of such costs, fees and expenses have been provided. SECTION 7.4 Record Retention. To facilitate the possible exchange ---------------- of Information pursuant to this Article VII and other provisions of this ----------- Agreement after the Assumption Time, the parties agree to use their reasonable best efforts to retain all Information in their respective possession or control at the Assumption Time in accordance with the policies of Parent as in effect at the Assumption Time. No party will destroy, or permit any of its Subsidiaries to destroy, any Information which the other party may have the right to obtain pursuant to this Agreement prior to sixty (60) days after the date of expiry of the applicable statute of limitations (giving effect to any extensions) with respect to such Information or three (3) years from the Distribution Date, whichever is later, without first using its reasonable best efforts to notify the other party of such proposed destruction and giving the other party the opportunity to take possession of such information prior to such destruction. SECTION 7.5 Limitation of Liability. No party shall have any ----------------------- Liability to any other party in the event that any Information exchanged or provided pursuant to this Agreement that is an estimate or forecast, or which is based on an estimate or forecast, is found to be inaccurate, in the absence of willful misconduct or fraud by the party providing such Information. No party shall have any Liability to any other party if any Information is destroyed after reasonable best efforts by such party to comply with the provisions of Section 7.4. - ----------- SECTION 7.6 Other Agreements Providing for Exchange of Information. ------------------------------------------------------ The rights and obligations granted under this Article VII are subject to any ----------- specific limitations, qualifications or additional provisions on the sharing, exchange or confidential treatment of Information set forth in any Ancillary Agreement. SECTION 7.7 Production of Witnesses; Records; Cooperation. (a) --------------------------------------------- After the Assumption Time, except in the case of an Action by one party hereto against the other party hereto (which shall be governed by such discovery rules as may be applicable thereto), each party hereto shall use its reasonable best efforts to make available to each other party, upon written request, the former, current and future directors, officers, employees, other personnel and agents of the members of its respective Group as witnesses and any books, records or other documents within its control or which it otherwise has the ability to make available, to the extent that any such person (giving consideration to business demands of such directors, officers, 29 employees, other personnel and agents) or books, records or other documents may reasonably be required in connection with any Action in which the requesting party may from time to time be involved, regardless of whether such Action is a matter with respect to which indemnification may be sought hereunder. The requesting party shall bear all out-of-pocket costs, fees and expenses (including allocated costs of in-house counsel and other personnel) in connection therewith. (b) If an Indemnifying Party or Parent chooses to defend or to seek to compromise or settle any pending or threatened Third-Party Claim, Parent or such other party, as the case may be, shall use its reasonable best efforts to make available to the other party, upon written request, the former, current and future directors, officers, employees, other personnel and agents of the members of its respective Group as witnesses and any books, records or other documents within its control or which it otherwise has the ability to make available, to the extent that any such person (giving consideration to business demands of such directors, officers, employees, other personnel and agents) or books, records or other documents may reasonably be required in connection with such defense, settlement or compromise, or such prosecution, evaluation or pursuit, as the case may be, and shall otherwise cooperate in such defense, settlement or compromise, or such prosecution, evaluation or pursuit, as the case may be. (c) Without limiting the foregoing, the parties shall reasonably cooperate and consult to the extent reasonably necessary with respect to any Actions. (d) Without limiting any provision of this Section 7.7, each of the ----------- parties agrees to cooperate, and to cause each member of its respective Group to cooperate, with each other in the defense of any infringement or similar claim with respect to any Intellectual Property Rights and shall not claim to acknowledge, or permit any member of its respective Group to claim to acknowledge, the validity or infringing use of any intellectual property of a third Person in a manner that would hamper or undermine the defense of such infringement or similar claim. (e) The obligation of the parties to provide witnesses pursuant to this Section 7.7 is intended to be interpreted in a manner so as to facilitate ----------- cooperation and shall include the obligation to provide as witnesses inventors, directors, officers, employees, other personnel and agents without regard to whether any such individual could assert a possible business conflict (subject to the exception set forth in the first sentence of Section 7.7(a)). -------------- (f) In connection with any matter contemplated by this Section 7.7, ----------- the parties will enter into a mutually acceptable joint defense agreement so as to maintain to the extent practicable any applicable attorney-client privilege or work product immunity of any member of any Group. SECTION 7.8 Confidentiality. (a) Subject to Section 7.9, each of --------------- ----------- Parent and Technologies, on behalf of itself and each member of its respective Group, agrees to hold, and to cause its respective directors, officers, employees, agents, accountants, counsel and other advisors and representatives to hold, in strict confidence, with at least the same degree of care that such party then uses with respect to its own confidential and proprietary information, all Information concerning each such other Group that is either in its possession (including Information in its possession prior to any of the date hereof, the Assumption Time or the 30 Distribution Date) or furnished by any such other Group or its respective directors, officers, employees, agents, accountants, counsel and other advisors and representatives at any time pursuant to this Agreement, any Ancillary Agreement or otherwise, and shall not use any such Information other than for such purposes as shall be expressly permitted hereunder or thereunder, except, in each case, to the extent that such Information has been (i) in the public domain through no fault of such party or any member of such Group or any of their respective directors, officers, employees, agents, accountants, counsel and other advisors and representatives, (ii) later lawfully acquired from other sources by such party (or any member of such party's Group) which sources are not themselves bound by a confidentiality obligation, or (iii) independently generated without reference to any proprietary or confidential Information of the other party. (b) Each party agrees not to release or disclose, or permit to be released or disclosed, any such Information to any other Person, except its directors, officers, employees, agents, accountants, counsel and other advisors and representatives who need to know such Information (who shall be advised of their obligations hereunder with respect to such Information), except in compliance with Section 7.9. Without limiting the foregoing, when any ----------- Information is no longer needed for the purposes contemplated by this Agreement or any Ancillary Agreement, each party will promptly after request of the other party either return to the other party all Information in a tangible form (including all copies thereof and all notes, extracts or summaries based thereon) or certify to the other party that it has destroyed such Information (and such copies thereof and such notes, extracts or summaries based thereon). SECTION 7.9 Protective Arrangements. In the event that any party ----------------------- or any member of its Group either determines on the advice of its counsel that it is required to disclose any Information pursuant to applicable law or receives any demand under lawful process or from any Governmental Authority to disclose or provide Information of any other party (or any member of any other party's Group) that is subject to the confidentiality provisions hereof, such party shall notify the other party prior to disclosing or providing such Information and shall cooperate at the expense of the requesting party in seeking any reasonable protective arrangements requested by such other party. Subject to the foregoing, the Person that received such request may thereafter disclose or provide Information to the extent required by such law (as so advised by counsel) or by lawful process or such Governmental Authority. ARTICLE VIII NO REPRESENTATIONS OR WARRANTIES SECTION 8.1 No Representations or Warranties. Except as expressly -------------------------------- set forth herein or in any other Ancillary Agreement, Technologies understands and agrees that no member of the Parent Group is, in this Agreement or in any other agreement or document, representing or warranting to Technologies or any member of the Technologies Group in any way as to the Technologies Assets, the Technologies Business or the Technologies Liabilities, it being agreed and understood that Technologies and each member of the Technologies Group shall take all of the Technologies Assets "as is, where is." Except as expressly set forth herein or in any other Ancillary Agreement and subject to Sections 5.1, ------------ 5.2, 6.5 and 11.1(b), Technologies and each member of the Technologies Group - --- --- ------- shall bear the economic and legal risk that the Technologies Assets shall prove to be insufficient or that the title of any member of the 31 Technologies Group to any Technologies Assets shall be other than good and marketable and free from encumbrances. The foregoing shall be without prejudice to any rights under Article II, Section 5.1, Section 5.2 and Section 6.5 or to ---------- ----------- ----------- ----------- the covenants otherwise contained in this Agreement or any other Ancillary Agreement. ARTICLE IX REGISTRATION RIGHTS SECTION 9.1 Demand Registration Rights. (a) Parent shall have the -------------------------- right, exercisable on multiple occasions from time to time after the expiration of the lock-up period specified in the Underwriting Agreements, but no more frequently than twice during any 12-month period, to require Technologies to register for offer and sale under the Securities Act (a "Demand") all or a ------ portion of the Technologies Common Stock ("Demand Shares") held by Parent or any ------------- Parent Subsidiary; provided that Parent shall not be entitled to make a Demand -------- hereunder unless (i) the Demand Shares represents at least 5% of the aggregate shares of Technologies Common Stock then issued and outstanding and (ii) Parent holds not less than 10% of the then outstanding Technologies Common Stock on the date that Parent requests such Demand. Upon receiving a request for such Demand, Technologies shall use reasonable best efforts (i) to file as promptly as reasonably practicable a registration statement on such form as Technologies may reasonably deem appropriate (provided that Technologies shall not be -------- obligated to register any securities on a "shelf" registration statement or otherwise to register securities for offer or sale on a continuous or delayed basis) providing for the registration of the sale of such Demand Shares pursuant to the intended method of distribution requested by Parent (a "Demand ------ Registration"), and (ii) to cause such registration statement first to become - ------------ effective and then to remain effective for such period of time (not to exceed 90 days from the day such registration statement first becomes effective, subject to extension to the extent of any suspension in the obligation to keep effective provided below) as may be reasonably necessary to effect such offers and sales. (b) Notwithstanding anything in this Agreement to the contrary, Technologies shall be entitled to postpone and delay, for reasonable periods of time, but in no event more than an aggregate of 60 days during any 12-month period (a "Blackout Period"), the filing or effectiveness of any registration --------------- statement relating to a Demand Registration if Technologies shall determine that any such filing or the offering of any Demand Shares would, (i) in the good faith judgment of the Board of Directors of Technologies, impede, delay or otherwise interfere with any pending or contemplated material acquisition, corporate reorganization or other similar transaction involving Technologies, (ii) based upon advice from an investment banker or financial advisor, adversely affect any pending or contemplated financing, offering or sale of any class of securities by Technologies or (iii) in the good faith judgment of the Board of Directors of Technologies, require disclosure of material non-public information (other than information relating to an event described in clauses (i) or (ii) above) which, if disclosed at such time, would be harmful to the best interests of Technologies and its stockholders; provided, however, that in each case -------- ------- Technologies shall give written notice to Parent of its determination to postpone or delay the filing of any Demand Registration; and provided, further, -------- ------- that in each case in the event that Technologies proposes to register Technologies Common Stock, whether or not for sale for its own account, during a Blackout Period, Parent shall have the right to exercise its rights under 32 Section 9.2 of this Agreement with respect to such registration, subject to the - ----------- limitations contained in this Agreement on the exercise of such rights. (c) In connection with an underwritten offering, if the managing underwriter or co-managing underwriter reasonably and in good faith shall have advised Technologies or Parent that, in its opinion, the number of Demand Shares subject to a Demand Request exceeds the number which can be sold in such offering, Parent shall include in such registration the number of Demand Shares that, in the opinion of such managing underwriter or underwriters, can be sold in such offering; provided that if as a result of any reduction pursuant to this -------- paragraph (c), the Technologies Common Stock subject to such Demand represents 5% or less of the aggregate shares of Technologies Common Stock then issued and outstanding, Parent may withdraw such Demand with respect to all Demand Shares covered thereby and such registration shall not count for the purposes of determining the number of Demand Registrations to which Parent is entitled under Section 9.1(a). - -------------- (d) In connection with any underwritten offering, the managing underwriter for such Demand Registration shall be selected by Parent, provided -------- that such managing underwriter shall be a nationally recognized investment banking firm and shall be reasonably acceptable to Technologies. Technologies may, at its option, select a nationally recognized investment banking firm reasonably acceptable to Parent to act as co-managing underwriter. SECTION 9.2 Piggy-back Registration Rights. (a) If at any time ------------------------------ Technologies intends to file on its behalf or on behalf of any of its securityholders a registration statement in connection with a public offering of any securities of Technologies on a form and in a manner that would permit the registration for offer and sale of Technologies Common Stock held by Parent or any Parent Subsidiary, other than a registration statement on Form S-8 or Form S-4, then Technologies shall give written notice (an "Intended Offering Notice") ------------------------ of such intention to Parent at least 20 business days prior to the anticipated filing date of such registration statement. Such Intended Offering Notice shall offer to include in such registration statement for offer to the public such number of shares of Common Stock as Parent may request, subject to the conditions set forth herein, and shall specify, to the extent then known, the number and class of securities proposed to be registered, the proposed date of filing of such registration statement, any proposed means of distribution of such securities, any proposed managing underwriter or underwriters of such securities and a good faith estimate by Technologies of the proposed maximum offering price of such securities, as such price is proposed to appear on the facing page of such registration statement. Parent shall advise Technologies in writing (such written notice being a "Piggy-back Notice") not later than 10 ----------------- business days after Technologies' delivery to Parent of the Intended Offering Notice, if Parent desires to participate in such offering. The Piggy-back Notice shall set forth the number of shares of Technologies Common Stock that Parent desires to have included in the registration statement and offered to the public (the "Piggy-back Shares"). Upon the request of Technologies, Parent shall ----------------- enter into such underwriting, custody and other agreements as are customary in connection with registered secondary offerings or necessary or appropriate in connection with the offering. (b) In connection with an underwritten offering pursuant to this Section 9.2, if the managing underwriter or underwriters advise Technologies and - ----------- Parent in writing that in its or their opinion the number of securities proposed to be registered exceeds the number that can be 33 sold in such offering, Technologies shall include in such registration the number of securities that, in the opinion of such managing underwriter or underwriters, can be sold as follows: (i) first, the securities that Technologies proposes to sell, (ii) second, Piggy-back Shares requested to be included in such registration by Parent and (iii) third, other securities requested to be included in such registration. SECTION 9.3 Registration Procedures. In connection with any ----------------------- registration statement registering either Demand Shares or Piggy-back Shares (a "Registration Statement"), the following provisions shall apply: ---------------------- (a) Before filing a Registration Statement or the prospectus included therein, Technologies will furnish to Parent and the managing underwriter or underwriters, if any, draft copies of all such documents proposed to be filed at least three (3) days prior to such filing, which documents will be subject to the reasonable review of Parent and the managing underwriter or underwriters, if any, and their respective agents and representatives and (x) Technologies will not include in any Registration Statement information concerning or relating to Parent to which Parent shall reasonably object (unless the inclusion of such information is required by applicable law or the regulations of any securities exchange to which Technologies may be subject), and (y) Technologies will not file any Registration Statement pursuant to Section 9.1 or any amendment thereto ----------- or any prospectus or any supplement thereto to which Parent shall reasonably object. (b) Technologies shall furnish to Parent, prior to the time the Registration Statement has been declared effective, a copy of the Registration Statement as initially filed with the SEC, and each amendment thereto and each amendment or supplement, if any, to the prospectus included therein. (c) Subject to Section 9.1(b) and in respect of a Registration -------------- Statement under Section 9.1, Technologies shall use reasonable best efforts to ----------- take promptly such action as may be necessary so that (i) each of the Registration Statement and any amendment thereto and the prospectus forming part thereof and any amendment or supplement thereto (and each report or other document incorporated therein by reference in each case), when it becomes effective, complies in all material respects with the Securities Act and the Exchange Act and the rules and regulations thereunder, (ii) each of the Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) each of the prospectus forming part of the Registration Statement, and any amendment or supplement to such prospectus, does not at any time during the period during which Technologies is required to use reasonable best efforts to keep a Registration Statement effective under Section ------- 9.1(a) include an untrue statement of a material fact or omit to state a - ------ material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (d) Technologies shall, promptly upon learning thereof, notify Parent of the following, and shall confirm such notice in writing if so requested: (i) when a Registration Statement and any amendment thereto has 34 been filed with the SEC and when the Registration Statement or any post- effective amendment thereto has become effective; (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the prospectus included therein or for additional information with respect to the Registration Statement and prospectus; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for such purpose; (iv) of the receipt by Technologies of any notification with respect to the suspension of the qualification of the securities included in the Registration Statement for sale in any jurisdiction or the initiation of any proceeding for such purpose; and (v) following the effectiveness of any Registration Statement, of the happening of any event or the existence of any state of facts that requires the making of any changes in the Registration Statement or the prospectus included therein so that, as of such date, such Registration Statement and prospectus do not contain an untrue statement of a material fact and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the prospectus, in light of the circumstances under which they were made) not misleading (which notice shall be accompanied by an instruction to Parent to suspend the use of the prospectus until the requisite changes have been made, which instruction Parent agrees to follow). (e) In respect of a Registration Statement under Section 9.1 (and not ----------- Section 9.2), Technologies shall use reasonable best efforts to prevent the - ----------- issuance, and if issued to obtain the withdrawal, of any stop order suspending the effectiveness of the Registration Statement at the earliest possible time. (f) Technologies shall furnish to Parent, without charge, at least one copy of the Registration Statement and all post-effective amendments thereto, including financial statements and schedules, and, if Parent so requests in writing, all reports, other documents and exhibits that are filed with or incorporated by reference in the Registration Statement. (g) Technologies shall, during the period during which Technologies is required to use reasonable best efforts to keep a Registration Statement continuously effective under Section 9.1(a) or elects to keep a Registration -------------- Statement effective under Section 9.2, deliver to Parent without charge, as many ----------- copies of the prospectus (including each preliminary prospectus) included in the Registration Statement and any amendment or supplement thereto as Parent may reasonably request, and Technologies consents (except during the continuance of any event described in Section 9.1(b) or Section 9.3(d)(v) hereof) to the use of -------------- ----------------- the prospectus, with any amendment or supplement thereto, by Parent in connection with the offering and sale of any Demand Shares or Piggy-back Shares (such shares, the "Registrable Shares") covered by the prospectus and any ------------------- amendment or supplement thereto during such period. 35 (i) Prior to any offering of Registrable Shares pursuant to the Registration Statement, Technologies shall use reasonable best efforts to (i) register or qualify or cooperate with Parent and its counsel in connection with the registration or qualification of such Registrable Shares for offer and sale under the securities or "blue sky" laws of such jurisdictions within the United States as Parent may reasonably request, (ii) keep such registrations or qualifications in effect and comply with such laws so as to permit the continuance of offers and sales in such jurisdictions for the period during which Technologies is required to use reasonable best efforts to keep a Registration Statement continuously effective under Section 9.1(a), and (iii) -------------- take any and all other reasonable actions requested by Parent which are necessary to enable the disposition in such jurisdictions of such Registrable Shares; provided, however, that in no event shall Technologies be obligated to -------- ------- (1) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to so qualify but for this Agreement or (2) file any general consent to service of process or subject itself to Tax in any jurisdiction where it is not so subject. (j) Technologies shall cooperate with Parent to facilitate the timely preparation and delivery of certificates representing Registrable Shares to be sold pursuant to the Registration Statement, which certificates shall comply with the requirements of any United States securities exchange upon which any Registrable Shares are listed (provided that nothing herein shall require -------- Technologies to list any Registrable Shares on any securities exchange on which they are not currently listed) and the rules and regulations of the National Association of Securities Dealers, as applicable, and which certificates shall be free of any restrictive legends and in such permitted denominations and registered in such names as Parent may request in connection with the sale of Registrable Shares pursuant to the Registration Statement. (k) Technologies shall: (i) make such reasonable representations and warranties in the applicable underwriting agreement to the underwriters, in form, substance and scope as are customary and as are consistent with the representations and warranties made in the Underwriting Agreements; (ii) use reasonable best efforts to cause all Registrable Shares covered by any Registration Statement to be listed on the NYSE or on the principal securities exchange on which Technologies Common Stock is then listed, or if no similar securities are then listed, cause all such Registrable Shares to be listed on a United States national securities exchange or secure designation of each such Regitrable Share as a Nasdaq National Market "national market system security" or secure National Association of Securities Dealers Automated Quotation authorization for such shares; (iii) in connection with any underwritten offering, use reasonable best efforts to obtain opinions of counsel to Technologies (which counsel and opinions in form, scope and substance) shall be reasonably satisfactory to the underwriters addressed to the underwriters, covering such matters as are customary to the extent reasonably required by the applicable underwriting agreement; 36 (iv) in connection with any underwritten offering, use reasonable best efforts to obtain "cold comfort" letters and updates thereof from the independent public accountants of Technologies (and, if necessary, from the independent public accountants of any subsidiary of Technologies or of any business acquired by Technologies for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to Parent and the underwriters, in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with secondary underwritten offerings of equity securities; (v) in connection with any underwritten offering, use reasonable best efforts to deliver such documents and certificates as may be reasonably requested by Parent and the underwriters, if any, including, without limitation, certificates to evidence compliance with any conditions contained in the underwriting agreement or other agreements entered into by Technologies; and (vi) undertake such obligations relating to expense reimbursement, indemnification and contribution as provided in Section 9.4 ----------- and Article V hereof. --------- (k) Technologies shall comply with all applicable rules and regulations of the SEC and make available to its security holders an earning statement, as soon as reasonably practicable but in no event later than 90 days after the end of the period of 12 months commencing on the first day of any fiscal quarter next succeeding each sale by Parent of Registrable Shares after the date hereof, which earning statement shall cover such twelve month period and shall satisfy the provisions of Section 11(a) of the Securities Act and may be prepared in accordance with Rule 158 under the Securities Act. (l) In respect of a Registration Statement under Section 9.1 (and not ----------- Section 9.2), Technologies shall use reasonable best efforts to take all other - ----------- steps reasonably necessary to effect the timely registration, offering and sale of the Registrable Securities covered by the Registration Statements contemplated hereby. (m) Parent shall notify Technologies as promptly as practicable of any inaccuracy or change in Information previously furnished by Parent to Technologies pursuant to Section 7.1 for inclusion in any Registration Statement ----------- or related prospectus or exhibits or of the occurrence of any event, in either case as a result of which any Registration Statement or related prospectus or exhibit contains or would contain an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and promptly furnish to Technologies any additional Information required to correct and update any previously furnished Information or required so that such prospectus shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. SECTION 9.4 Registration Expenses. Technologies shall bear the --------------------- costs, fees and expenses arising in connection with the performance of its obligations under Section 9.1, Section 9.2 and Section 9.3. Parent shall bear ----------- ----------- ----------- all of the costs, fees and expenses of counsel to 37 Parent, any applicable underwriting discounts or commissions, and registration or filing fees with respect to the Registrable Shares being sold by Parent. SECTION 9.5 Termination of Registration Obligation. Notwithstanding -------------------------------------- anything to the contrary contained in this Agreement, the provisions of Section ------- 9.1, Section 9.2 and Section 9.3 shall terminate upon completion of the - --- ----------- ----------- Distribution. ARTICLE X TERMINATION SECTION 10.1 Termination by Mutual Consent. This Agreement may be ----------------------------- terminated at any time prior to the Distribution Date by the mutual consent of Parent and Technologies. SECTION 10.2 Effect of Termination. (a) In the event of any --------------------- termination of this Agreement prior to consummation of the IPO, no party to this Agreement (or any of its directors or officers) shall have any Liability or further obligation to any other party. (b) In the event of any termination of this Agreement on or after the consummation of the IPO, only the provisions of Article IV and Section 6.6 will ---------- ----------- terminate and the other provisions of this Agreement and each Ancillary Agreement shall remain in full force and effect. ARTICLE XI MISCELLANEOUS SECTION 11.1 Complete Agreement; Corporate Power. (a) This Agreement, ----------------------------------- the Exhibits and Schedules hereto and the Ancillary Agreements shall constitute the entire agreement between the parties hereto with respect to the subject matter hereof and shall supersede all previous negotiations, commitments and writings with respect to such subject matter. (b) Parent represents on behalf of itself and each other member of the Parent Group and Technologies represents on behalf of itself and each other member of the Technologies Group as follows: (i) each such Person has the requisite corporate or other power and authority and has taken all corporate or other action necessary in order to execute, deliver and perform each of this Agreement and each other Ancillary Agreement to which it is a party and to consummate the transactions contemplated hereby and thereby; and (ii) this Agreement and each Ancillary Agreement to which it is a party has been duly executed and delivered by it and constitutes a valid and binding agreement of it enforceable in accordance with the terms thereof. 38 SECTION 11.2 Expenses. Except as expressly set forth in this -------- Agreement or in any Ancillary Agreement, whether or not the Separation, the IPO or the Distribution are consummated, all third party fees, costs and expenses paid or incurred in connection with the transactions contemplated by this Agreement and the Ancillary Agreements will be paid by the party incurring such fees, costs or expenses. SECTION 11.3 Governing Law. This Agreement shall be governed by and ------------- construed in accordance with the laws of the State of Delaware (other than the laws regarding choice of laws and conflicts of laws that would apply the substantive laws of any other jurisdiction) as to all matters, including matters of validity, construction, effect, performance and remedies. SECTION 11.4 Notices. All notices, requests, claims, demands and ------- other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by standard form of telecommunications, by courier, or by registered or certified mail, postage prepaid, return receipt requested, addressed as follows: If to Parent or any member of the Parent Group: Prior to the Distribution: After the Distribution: FMC Corporation FMC Corporation 200 East Randolph Drive 1735 Market Street Chicago, Illinois 60601 Philadelphia, Pennsylvania 19103 Attention: General Counsel Attention: Chief Executive Officer Fax: (312) 861-6176 Fax: (215) 299-5999 If to Technologies or any member of the Technologies Group: FMC Technologies, Inc. 200 East Randolph Drive Chicago, Illinois 60601 Attention: President Fax: (312) 861-6176 or to such other address as any party hereto may have furnished to the other parties by a notice in writing in accordance with this Section 11.4. ------------ SECTION 11.5 Amendment and Modification. This Agreement may be -------------------------- amended, modified or supplemented only by a written agreement signed by all of the parties hereto. SECTION 11.6 Successors and Assigns; No Third-Party Beneficiaries. ---------------------------------------------------- This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns, but neither this Agreement nor any of the rights, interests and obligations hereunder shall be assigned by any party hereto without the prior written consent of the other party. Except for the provisions of Sections 5.2 and 5.3 ------------ --- 39 relating to indemnities, which are also for the benefit of the Indemnitees, this Agreement is solely for the benefit of the parties hereto and their Subsidiaries and Affiliates and is not intended to confer upon any other Persons any rights or remedies hereunder. SECTION 11.7 Counterparts. This Agreement may be executed in ------------ counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. SECTION 11.8 Interpretation. The Article and Section headings -------------- contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties hereto and shall not in any way affect the meaning or interpretation of this Agreement. SECTION 11.9 Severability. If any provision of this Agreement or ------------ the application thereof to any person or circumstance is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof, or the application of such provision to persons or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party. SECTION 11.10 References; Construction. References to any "Article," ------------------------ "Exhibit," "Schedule" or "Section," without more, are to Articles, Exhibits, Schedules and Sections to or of this Agreement. Unless otherwise expressly stated, clauses beginning with the term "including" set forth examples only and in no way limit the generality of the matters thus exemplified. SECTION 11.11 Conflict with Ancillary Agreements. Except to the ---------------------------------- extent Section 5.2, 5.3 or 12.1 conflict with the Tax Sharing Agreement, in ----------- --- ---- which case the Tax Sharing Agreement shall govern, the provisions of this Agreement shall govern in the event of any conflict between the provisions of any Ancillary Agreement and this Agreement. SECTION 11.12 Post Foreign-Restructuring Capital Contribution. ----------------------------------------------- Parent and Technologies understand and acknowledge that certain trade and government receivables of the chemical operations of the current UK and Irish affiliates of Parent (the "Retained Receivables") are being withheld from the Foreign Restructuring transactions in these jurisdictions in order to minimize the amount of Foreign Transfer Taxes payable in each of these jurisdictions. As a result of these transactions, Technologies will (in accordance with the operation and provision of Schedule 2.6) carry an increased initial amount of indebtedness which reflects the face value of the Retained Receivables. In order to mitigate the future carrying cost on Technologies of the Retained Receivables, Parent agrees to make periodic capital contributions to Technologies. No additional shares of Technologies stock shall be issued in consideration for Parent making such capital contributions. The capital contributions shall be made on a monthly basis (in arrears) until the date that all Retained Receivables are either paid in full or repurchased by the relevant foreign subsidiary of the parent in accordance with the relevant Foreign Restructuring Agreement. The amount of the monthly capital contribution shall be equal to: (i) the sum of: (a) the average monthly balance of Retained Receivables of the Lithium, Biopolymer and Agricultural Chemical Business of FMC Corporation (UK) Limited; (b) plus average monthly balance of Retained Receivables of the Biopolymer business of FMC International A.G. Irish partnership; (ii) times the average monthly LIBOR interest rate for the month in question (as quoted in The Wall Street Journal); (iii) times 61%. Such monthly capital contributions shall be made within ten (10) Business Days following the month end to which the computation relates and shall be payable in US dollars. ARTICLE XII NEGOTIATION SECTION 12.1 Negotiation. In the event of any dispute or ----------- disagreement between any member of the Parent Group, on one hand, and any member of the Technologies Group, on the other hand, as to the interpretation of any provision of this Agreement or Ancillary Agreements (or the performance of obligations hereunder or thereunder), the dispute, upon written request of Parent or Technologies, as applicable, shall be referred to representatives of the parties for decision, each party being represented by its Chief Executive Officer. The Chief Executive Officers shall promptly meet in a good faith effort to resolve the dispute or determine a means to resolve the dispute. If the Chief Executive Officers do not agree upon a decision within thirty (30) days after reference of the matter to them, each Parent and Technologies shall be free to exercise all rights and remedies available to them. 40 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written. FMC CORPORATION By:_______________________________ Name: Title: FMC TECHNOLOGIES, INC. By:_______________________________ Name: Title: 41 EX-4 4 fmcex4-1_52724.txt EXHIBIT 4-1 - REVOLVING CREDIT AGREEMENT EXHIBIT 4.1 364-DAY CREDIT AGREEMENT 364-DAY CREDIT AGREEMENT dated as of December 6, 2001, among FMC CORPORATION, a Delaware corporation (the "BORROWER"), the lenders from time to time party hereto (the "LENDERS"), CITIBANK, N.A., as administrative agent (the "ADMINISTRATIVE AGENT"), BANK OF AMERICA, N.A., as syndication agent, and ABN AMRO BANK N.V. and FIRST UNION NATIONAL BANK, as co-documentation agents. The parties hereto agree as follows: ARTICLE I DEFINITIONS SECTION 1.01. Definitions. The following terms, as used herein, have the ----------- following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined): "ADDITIONAL LENDER" has the meaning set forth in Section 2.18(b). "ADJUSTED NET INCOME" means, for any period, Consolidated Net Income for such period, excluding the effect of Non-Recurring Items; provided that the aggregate amount so excluded on account of Non-Recurring Items shall not exceed $150,000,000 minus the aggregate amount of any write-downs in or write-offs of any Investment of the Borrower or any Restricted Subsidiary in any Unrestricted Subsidiary if such Investments were accounted for under the cost method of accounting under GAAP. "ADMINISTRATIVE AGENT" means Citibank, in its capacity as agent for the Lenders hereunder, and its successors in such capacity. "ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each Lender, an administrative questionnaire in the form prepared by the Administrative Agent and duly completed and submitted to the Administrative Agent (with a copy to the Borrower) by such Lender. "AGREEMENT" means this 364-Day Credit Agreement, as amended, supplemented or otherwise modified from time to time. "APPLICABLE LENDING OFFICE" means, with respect to any Lender, (i) in the case of its Base Rate Loans, its Domestic Lending Office, (ii) in the case of its Euro-Dollar Loans, its Euro-Dollar Lending Office, and (iii) in the case of its Competitive Bid Loans, its Competitive Bid Lending Office. "ASSIGNEE" has the meaning set forth in Section 9.07(c). "ASSIGNMENT AND ASSUMPTION AGREEMENT" means an assignment and assumption entered into by (a) a Lender and an Assignee, and accepted by the Administrative Agent, or (b) an Assuming Lender, a Non-Consenting Lender, the Borrower and the Administrative Agent, as applicable, in substantially the form of Exhibit D. "ASSUMING LENDER" means each Assignee that accepts an offer to participate in a requested extension of the Commitments in accordance with Section 2.17. "BASE RATE" means, for any period, a fluctuating interest rate per annum as shall be in effect from time to time, which rate per annum shall be equal to the higher of the following: (a) the rate of interest announced publicly by Citibank in New York, New York, from time to time, as Citibank's base rate; or (b) the sum of (i) 0.5% per annum plus (ii) the Federal Funds Rate. "BASE RATE LOAN" means a Loan made or to be made by a Lender in accordance with the applicable Notice of Borrowing or pursuant to Section 8.04 which bears interest based on the Base Rate. "BORROWER" means FMC Corporation and its permitted successors and assigns. "BORROWING" has the meaning set forth in Section 1.03. "BUSINESS DAY" means a Domestic Business Day and, if the applicable Business Day relates to notices, determinations, fundings and payments in connection with the Euro-Dollar Rate or any Euro-Dollar Loans, a Euro-Dollar Business Day. "CITIBANK" means Citibank, N.A. "COMMITMENT" means, (i) with respect to each Lender, the amount set forth opposite the name of such Lender on Schedule I hereto and (ii) with respect to each Additional Lender which becomes a Lender pursuant to Section 2.18, the amount of commitment thereby assumed by it, in each case as such amount may be reduced from time to time pursuant to Section 2.10 or 2.11, or increased pursuant to Section 2.17 or 2.18 or increased or reduced by reason of an assignment to or by such Lender in accordance with Section 9.07(c). "COMMITMENT TERMINATION DATE" means, subject to Section 2.17, the earlier to occur of (i) 364 days following the Effective Date (or if such day is not a Euro-Dollar Business Day, the preceding Euro-Dollar Business Day), as such date may be extended in accordance with Section 2.17, or (ii) the date on which the Commitments shall have been reduced to zero pursuant to Sections 2.09, 2.10 or 6.01; provided, however, that the Commitment Termination Date of any Lender that is a Non-Consenting Lender to any requested extension pursuant to Section 2.17 shall be the Commitment Termination Date in effect immediately prior to the applicable Extension Date for all purposes of this Agreement. "COMPETITIVE BID BORROWING" means a Borrowing consisting of a Competitive Bid Loan or simultaneous Competitive Bid Loans from each of the Lenders whose offer to make one or more Competitive Bid Loans as part of such Borrowing has been accepted under the competitive bidding procedure described in Section 2.03. "COMPETITIVE BID EURO-DOLLAR RATE LOAN" means a Loan made pursuant to Section 2.03 that bears interest based on the Euro-Dollar Rate. "COMPETITIVE BID LENDING OFFICE" means, with respect to each Lender, the office of such Lender notified by such Lender to the Administrative Agent as its Lending Office with respect to any Competitive Bid Loan. "COMPETITIVE BID LOAN" means a Competitive Bid Euro-Dollar Rate Loan or a Fixed Rate Loan. 2 "COMPETITIVE BID LOAN REDUCTION" has the meaning specified in Section 2.01. "COMPETITIVE BID LOAN NOTE" means a promissory note of the Borrower registered in the name of any Lender, in substantially the form of Exhibit A-2, evidencing the aggregate Debt of the Borrower to such Lender resulting from the Competitive Bid Loans owing to such Lender. "CONSOLIDATED ADJUSTED NET WORTH" means, at any date, the sum of (i) the consolidated stockholders' equity of the Borrower and its Consolidated Subsidiaries as of December 31, 2001, plus (ii) the cumulative Adjusted Net Income for the period since December 31, 2001 through the end of the then most recently ended fiscal quarter of the Borrower, treated for this purpose as a single accounting period, plus or minus (iii) the net amount by which the consolidated stockholders' equity of the Borrower and its Consolidated Restricted Subsidiaries has been increased or decreased since December 31, 2001 on account of items not reflected in Adjusted Net Income (other than items specifically excluded from Adjusted Net Income pursuant to the terms of this Agreement and cumulative changes in GAAP, and amounts included in other comprehensive income under GAAP). "CONSOLIDATED DEBT" means at any date the total Debt of the Borrower and its Consolidated Subsidiaries, determined on a consolidated basis as of such date. "CONSOLIDATED EBITDA" means, with respect to the Borrower and its Consolidated Subsidiaries for any period, an amount equal to (a) Consolidated Net Income for such period plus (b) the sum of, in each case to the extent deducted in the calculation of such Consolidated Net Income but without duplication, (i) any income tax expense, (ii) Consolidated Interest Expense, (iii) depreciation, depletion, and amortization of intangibles or financing or acquisition costs, (iv) all other non-cash charges and non-cash losses for such period, and (v) Non-Recurring Items minus (c) the cash portion of Non-Recurring Items recognized in 2002 when paid and (d) the sum of, in each case to the extent added in the calculation of such Consolidated Net Income, but without duplication, (i) any income tax benefit, (ii) interest income, (iii) gains and losses from extraordinary items for such period, (iv) any aggregate net gain (but not any aggregate net loss) from the sale, exchange or other disposition of capital assets currently employed in the trade or business of the Borrower and its Subsidiaries, and (v) any other non-cash gains. "CONSOLIDATED INTEREST COVERAGE RATIO" means, with respect to the Borrower and its Consolidated Subsidiaries for any period, the ratio of Consolidated EBITDA to Consolidated Interest Expense for such period. "CONSOLIDATED INTEREST EXPENSE" means, for the Borrower and its Consolidated Subsidiaries for any period, total interest expense for such period determined on a consolidated basis in conformity with GAAP and including, in any event, interest capitalized during construction for such period. "CONSOLIDATED NET INCOME" means for any period the net income (or loss) of the Borrower and its Consolidated Restricted Subsidiaries for such period before extraordinary items, exclusive of any income (or loss) of any Unrestricted Subsidiary during such period but including the sum of (i) dividends received during such period by the Borrower or a Consolidated Restricted Subsidiary and (ii) the sum of (x) the Borrower's pro rata share of the net income (calculated before income taxes, interest expense, extraordinary and unusual items and Non-Recurring Items) of Astaris LLC for such period and (y) the Shortfall Amount for such period, in each case only to the extent that the Shortfall Amount is paid to Astaris LLC by the Borrower during such period. 3 "CONSOLIDATED RESTRICTED SUBSIDIARY" means at any date any Restricted Subsidiary the accounts of which would be consolidated with those of the Borrower in its consolidated financial statements as of such date. "CONSOLIDATED SUBSIDIARY" means at any date any Subsidiary or other Person the accounts of which would be consolidated with those of the Borrower in its consolidated financial statements as of such date, other than FTI. "DEBT" of any Person means at any date, without duplication, (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments (other than the non-negotiable notes of the Borrower issued to its insurance carriers in lieu of maintenance of policy reserves in connection with its workers' compensation and auto liability insurance program), (iii) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable, expense accruals and deferred employee compensation items arising in the ordinary course of business, (iv) all non-contingent obligations (and, for purposes of Section 5.06 and the definition of Material Financial Obligations, all contingent obligations) of such Person to reimburse any bank or other Person in respect of amounts paid under a letter of credit or similar instrument, other than obligations under direct pay letters of credit which have already been accounted for under the categories of Debt described in clauses (i) or (ii) above, (v) all obligations of such Person as lessee under capital leases reported under GAAP as "debt" on such Person's balance sheet, (vi) all Debt of others secured by a Lien on any asset of such Person, whether or not such Debt is assumed by such Person, (vii) all debt of such Person created or arising under any conditional sale or other title retention agreement with respect to trade accounts receivable acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such trade accounts receivable) and (viii) all Debt of others Guaranteed by such Person, except for guarantees of Debt related to the financing of product sales of certain foreign Subsidiaries of the Borrower listed on Schedule 1.01(a). "DEFAULT" means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default. "DERIVATIVES OBLIGATIONS" of any Person means all obligations of such Person in respect of any rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or other similar transaction (including any option with respect to any of the foregoing transactions) or any combination of the foregoing transactions. "DOMESTIC BUSINESS DAY" means any day except a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close. "DOMESTIC LENDING OFFICE" means, as to each Lender, its office located at its address set forth in its Administrative Questionnaire (or identified in its Administrative Questionnaire as its Domestic Lending Office) or such other office as such Lender may hereafter designate as its Domestic Lending Office by notice to the Borrower and the Administrative Agent. "EFFECTIVE DATE" means the date this Agreement becomes effective in accordance with Section 3.01. 4 "ENFORCEABLE JUDGMENT" means a judgment or order of a court or arbitral or regulatory authority as to which the period, if any, during which the enforcement of such judgment or order is stayed shall have expired. A judgment or order which is under appeal or as to which the time in which to perfect an appeal has not expired shall not be deemed an Enforceable Judgment so long as enforcement thereof is effectively stayed pending the outcome of such appeal or the expiration of such period, as the case may be. "ENVIRONMENTAL LAWS" means any and all federal, state, local and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or other governmental restrictions relating to the environment or to emissions, discharges or releases of pollutants, contaminants, petroleum or petroleum products, chemicals or industrial, toxic or hazardous substances or wastes into the environment including, without limitation, ambient air, surface water, ground water, or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, petroleum or petroleum products, chemicals or industrial, toxic or hazardous substances or wastes or the clean-up or other remediation thereof. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended, or any successor statute. "ERISA GROUP" means the Borrower, any Restricted Subsidiary and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower or any Restricted Subsidiary, are treated as a single employer under Section 414 of the Internal Revenue Code. "EURO-DOLLAR BUSINESS DAY" means any Domestic Business Day on which commercial banks are open for international business (including dealings in dollar deposits) in London. "EURO-DOLLAR LENDING OFFICE" means, as to each Lender, its office, branch or affiliate located at its address set forth in its Administrative Questionnaire (or identified in its Administrative Questionnaire as its Euro-Dollar Lending Office) or such other office, branch or affiliate of such Lender as it may hereafter designate as its Euro-Dollar Lending Office by notice to the Borrower and the Administrative Agent. "EURO-DOLLAR LOAN" means a Loan made or to be made by a Lender in accordance with the applicable Notice of Borrowing which bears interest based on the Euro-Dollar Rate. "EURO-DOLLAR MARGIN" means, as of any date of determination, a per annum rate equal to the rate set forth below opposite the then applicable Status, set forth below: ================================================================================ Status Level I Level II Level III Level IV Level V Level VI ================================================================================ Euro-Dollar Loan .470% .625% 1.100% 1.175% 1.250% 1.300% - -------------------------------------------------------------------------------- "EURO-DOLLAR RATE" means, with respect to any Interest Period, the average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the respective rates per annum at which deposits in dollars are offered to each of the Reference Banks in the London interbank market at approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before the first day of such Interest Period in an amount approximately equal to the principal amount of the Euro-Dollar Loan of such Reference Bank 5 or, in the case of a Competitive Bid Borrowing, in an amount substantially equal to the amount that would be the Reference Bank's respective Shares of such Borrowing if such Borrowing were to be a Euro-Dollar Loan, in each case, to which such Interest Period is to apply and for a period of time comparable to such Interest Period. "EURO-DOLLAR RESERVE PERCENTAGE" means for any day that percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement for a member bank of the Federal Reserve System in New York City with deposits exceeding five billion dollars in respect of "EUROCURRENCY LIABILITIES" (or in respect of any other category of liabilities which includes deposits by reference to which the interest rate on Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans is determined or any category of extensions of credit or other assets which includes loans by a non-United States office of any Lender to United States residents). "EVENT OF DEFAULT" has the meaning set forth in Section 6.01. "EXISTING CREDIT AGREEMENT" means that certain Five Year Credit Agreement dated as of December 6, 1996, among the Borrower, the lenders party thereto and Morgan Guaranty Trust Company of New York, as agent, as amended, supplemented or otherwise modified from time to time. "EXTENSION DATE" has the meaning specified in Section 2.17(a). "FACILITY FEE RATE" means, as of any date of determination, a per annum rate equal to the rate set forth below opposite the then applicable Status, set forth below: ================================================================================ Status Level I Level II Level III Level IV Level V Level VI ================================================================================ Facility Fee Rate .080% .125% .150% .200% .250% .325% - -------------------------------------------------------------------------------- "FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Domestic Business Day next succeeding such day; provided that (i) if such day is not a Domestic Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Domestic Business Day as so published on the next succeeding Domestic Business Day, and (ii) if no such rate is so published on such next succeeding Domestic Business Day, the Federal Funds Rate for such day shall be the average rate quoted to the Administrative Agent on such day (or next preceding Domestic Business Day) on such transactions as determined by the Administrative Agent. "FIXED RATE LOAN" means a Loan made pursuant to Section 2.03 that bears interest at a fixed rate per annum. "FTI" means FMC Technologies, Inc. "GAAP" means generally accepted accounting principles in the United States of America as in effect from time to time set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and the statements and pronouncements of the Financial Accounting Standards Board, or in such other statements by such other entity as may be 6 in general use by significant segments of the accounting profession, which are applicable to the circumstances as of the date of determination. "GUARANTEE" by any Person means any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Debt of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt (whether arising by virtue of partnership arrangements, by agreement to keep-well (but excluding any agreement related to the Shortfall Amount), to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise) or (ii) entered into for the purpose of assuring in any other manner the obligee of such Debt of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business. The term "Guarantee" used as a verb has a corresponding meaning. "HEDGING CONTRACTS" means all Interest Rate Contracts, foreign currency exchange contracts, currency swap or option agreements, equity deriviatives, forward rate contracts, commodity swap, purchase or option agreements, and all other similar agreements or arrangements designed to alter the risks of any Person arising from fluctuations in interest rates, currency values, equity values or commodity prices. "INCREASED COMMITMENTS" has the meaning set forth in Section 2.18(a). "INTEREST PERIOD" means: (i) with respect to each Euro-Dollar Borrowing, the period commencing on the date of such Euro-Dollar Borrowing and ending one, two, three, six or, if available by all of the Lenders, nine months thereafter, as the Borrower may elect in the applicable Notice of Borrowing and, (ii) with respect to a Competitive Bid Euro-Dollar Rate Borrowing, the period commencing on the date of such Borrowing and ending on the date specified in the offer pursuant to which the Borrower has accepted such Borrowing under the competitive bidding procedure described in Section 2.03; provided that: (a) any Interest Period which would otherwise end on a day which is not a Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another calendar month, in which case such Interest Period shall end on the immediately preceding Euro-Dollar Business Day; (b) any Interest Period which begins on the last Euro-Dollar Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (c) below, end on the last Euro-Dollar Business Day of the calendar month at the end of such Interest Period; and (c) the Borrower may not elect any Interest Period that would end after the Commitment Termination Date. (iii) with respect to each Base Rate Borrowing, the period commencing on the date of such Borrowing and ending 30 days thereafter; provided that: (a) any Interest Period (other than an Interest Period determined pursuant to clause (b) below) which would otherwise end on a day which is not a Domestic Business Day shall be extended to the next succeeding Domestic Business Day; and 7 (b) any Interest Period which would otherwise end after the Commitment Termination Date shall end on the Commitment Termination Date. "INTEREST RATE CONTRACTS" means all interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and interest rate insurance. "INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as amended, or any successor statute. "INVESTMENT" means any investment by any Person (the "INVESTOR") in any other Person (the "INVESTEE"), whether by means of share purchase, capital contribution, loan, time deposit or otherwise. It is understood that neither (i) an item reflected in the financial statements of the Investor as an expense nor (ii) an adjustment to the carrying value of the Investee in the financial statements of the Investor (such as by reason of increased retained earnings of the Investee) constitutes the making or acquisition of an Investment for purposes hereof. "LENDER" means each of the financial institution listed on Schedule I hereto, each Assignee which becomes a Lender pursuant to Section 9.07(c), each financial institution which becomes a Lender pursuant to Section 2.17(b), each Additional Lender which becomes a Lender pursuant to Section 2.18, and their respective successors. "LIEN" means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset. For the purpose of this Agreement, the Borrower or any Subsidiary shall be deemed to own subject to a Lien any asset that it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such asset. "LOAN" means a Base Rate Loan or a Euro-Dollar Loan made by a Lender pursuant to Section 2.01 or a Competitive Bid Loan made by a Lender pursuant to Section 2.03. "LOANS" means Base Rate Loans, Euro-Dollar Loans or Competitive Bid Loans or any combination of the foregoing. "LOAN DOCUMENTS" means this Agreement, the Notes, and any other documents to be delivered thereunder or in connection therewith and all amendments thereto and substitutions and replacements therefor and modifications thereof. "MATERIAL ADVERSE EFFECT" means a material adverse effect (i) on the business, condition (financial or otherwise) or operations or prospects of the Borrower and its Consolidated Subsidiaries, taken as a whole, or (ii) on the legality, validity or enforceability of this Agreement or the Notes. "MATERIAL FINANCIAL OBLIGATIONS" means a principal or face amount of Debt (other than Debt under this Agreement) and/or payment in respect of Derivatives Obligations of the Borrower and/or one or more of its Subsidiaries, arising in one or more related or unrelated transactions, exceeding in the aggregate $25,000,000. "MATERIAL PLAN" means any Plan or Plans having aggregate Unfunded Liabilities in excess of $25,000,000. "MATERIAL SUBSIDIARY" means any Restricted Subsidiary in which the Borrower has an Investment, direct or indirect, of at least $10,000,000, as listed on Schedule 1.01(b) hereto. 8 "MOODY'S" means Moody's Investors Service, Inc. "MULTIEMPLOYER PLAN" means at any time an employee pension benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions, including for these purposes any Person which ceased to be a member of the ERISA Group during such five year period. "NON-CONSENTING LENDER" has the meaning set forth in Section 2.17(a). "NON-RECURRING ITEMS" means, to the extent reflected in the determination of Consolidated Net Income for any period, provisions for restructuring, discontinued operations, special reserves or other similar charges including write-downs or write-offs of assets (other than write-downs resulting from foreign currency translations). "NOTES" means promissory notes of the Borrower, substantially in the form of Exhibit A-1 or A-2 hereto, as applicable, evidencing the obligation of the Borrower to repay the Loans made to it, and "NOTE" means any one of such promissory notes issued hereunder. "NOTICE OF BORROWING" has the meaning set forth in Section 2.02 and, with respect to any Competitive Bid Loans, means a Notice of Competitive Bid Borrowing, as the case may be. "NOTICE OF COMPETITIVE BID BORROWING" has the meaning specified in Section 2.03(a)(i). "PARENT" means with respect to any Lender, any Person controlling such Lender. "PARTICIPANT" has the meaning set forth in Section 9.07(b). "PBGC" means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA. "PERSON" means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. "PLAN" means at any time an employee pension benefit plan (other than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Internal Revenue Code and either (i) is maintained, or contributed to, by any member of the ERISA Group for employees of any member of the ERISA Group or (ii) has at any time within the preceding five years been maintained, or contributed to, by any Person which was at such time a member of the ERISA Group for employees of any Person which was at such time a member of the ERISA Group. "PRINCIPAL OFFICER" means any of the following officers of the Borrower: Chairman of the Board, President, Secretary, Treasurer, or any Vice President. If any of the titles of the preceding officers are changed after the date hereof, the term "PRINCIPAL OFFICER" shall thereafter mean any officer performing substantially the same functions as are presently performed by one or more of the officers listed in the first sentence of this definition. "QUALIFICATION" means, with respect to any certificate covering financial statements, a qualification to such certificate (such as a "SUBJECT TO" or "EXCEPT FOR" statement therein) (i) resulting from a limitation on the scope of examination of such financial statements or the underlying data, (ii) as 9 to the capability of the Person whose financial statements are certified to continue operations as a going concern or (iii) which could be eliminated by changes in financial statements or notes thereto covered by such certificate (such as by the creation of or increase in a reserve or a decrease in the carrying value of assets) and which if so eliminated by the making of any such change and after giving effect thereto would occasion a Default; provided that neither of the following shall constitute a Qualification: (a) a consistency exception relating to a change in accounting principles with which the independent public accountants for the Person whose financial statements are being certified have concurred or (b) a qualification relating to the outcome or disposition of threatened litigation, pending litigation being contested in good faith, pending or threatened claims or other contingencies, the impact of which litigation, claims or contingencies cannot be determined with sufficient certainty to permit quantification in such financial statements. "REFERENCE BANKS" means Citibank and Bank of America, N.A. "REGULATIONS T, X AND U" means such Regulations of the Board of Governors of the Federal Reserve System, as in effect from time to time. "REQUIRED LENDERS" means at any time Lenders having at least 66 2/3% of the aggregate amount of the Commitments or, if the Commitments have been terminated, holding Notes evidencing at least 66 2/3% of the aggregate unpaid principal amount of the Loans (excluding Competitive Bid Loans). "RESTRICTED SUBSIDIARY" means any Subsidiary other than an Unrestricted Subsidiary. "S&P" means Standard & Poor's Ratings Group, a division of The McGraw-Hill Companies, Inc. "SHARE" means, with respect to each Lender, a fraction the numerator of which is such Lender's Commitment and the denominator of which is the aggregate amount of the Commitments. "SHORTFALL AMOUNT" means, during any period, the Borrower's pro rata share of the cash amount required to be contributed to Astaris LLC in accordance with the terms of the guarantee agreement entered into by the Borrower in connection with the Five-Year Credit Agreement dated September 14, 2000, among Astaris LLC and the lenders named therein, as amended from time to time. "STATUS" refers to the determination of which of Level I Status, Level II Status, Level III Status, Level IV Status or Level V Status exists at any date. "SUBSIDIARY" means any Person of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by the Borrower. For purposes of this Agreement, FTI shall not be deemed to be a Subsidiary. "UNFUNDED LIABILITIES" means, with respect to any Plan at any time, the amount (if any) by which (i) the present value of all benefits under such Plan exceeds (ii) the fair market value of all Plan assets allocable to such benefits (excluding any accrued but unpaid contributions), all determined as of the then most recent valuation date for such Plan, but only to the extent that such excess represents a potential liability of a member of the ERISA Group to the PBGC or any other Person under Title IV of ERISA. "UNRESTRICTED SUBSIDIARY" means (i) FMC Funding Corporation and Astaris LLC and (ii) any other Subsidiary of the Borrower which is declared to be an Unrestricted Subsidiary by the Borrower by notice to the Lenders; provided that the sum of all (x) Investments of the Borrower and its Restricted 10 Subsidiaries in any Subsidiary included in clause (i) above after the date hereof and (y) Investments of the Borrower and its Restricted Subsidiaries in Unrestricted Subsidiaries so declared under clause (ii) above shall not aggregate more than $75,000,000. "UTILIZATION FEE RATE" means a rate per annum equal to (i) .100% during a Level I Status and (ii) .125% during a Level II Status, a Level III Status and a Level IV Status, (iii) .250% during a Level V Status and (iv) .375% during a Level VI Status. SECTION 1.02. Accounting Terms and Determinations. Unless otherwise ----------------------------------- specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared, in accordance with United States generally accepted accounting principles as in effect from time to time applied on a basis consistent (except for changes concurred in by the Borrower's independent public accountants) with the most recent audited consolidated financial statements of the Borrower and its Consolidated Subsidiaries delivered to the Lenders; provided that if the Borrower notifies the Administrative Agent that the Borrower wishes to amend any covenant contained in Article V to eliminate the effect of any change in generally accepted accounting principles on the operation of such covenant (or if the Administrative Agent notifies the Borrower that the Required Lenders wish to amend Article V for such purpose), then the Borrower's compliance with such covenant shall be determined on the basis of generally accepted accounting principles in effect immediately before the relevant change in generally accepted accounting principles became effective, unless or until either such notice is withdrawn or such covenant is amended in a manner satisfactory to the Borrower and the Required Lenders. The Administrative Agent shall promptly notify the Lenders of any notice received from the Borrower pursuant to this Section 1.02. SECTION 1.03. Types of Borrowings. The term "BORROWING" denotes the ------------------- aggregation of Loans of one or more Lenders to be made to the Borrower pursuant to Article II on a single date and for a single Interest Period. Borrowings are classified for purposes of this Agreement by reference to the pricing of Loans comprising such Borrowing (e.g., a "EURO-DOLLAR BORROWING" is a Borrowing comprised of Euro-Dollar Loans, a "BASE RATE BORROWING" is a Borrowing comprised of Base Rate Loans and a "COMPETITIVE BID BORROWING" is a Borrowing comprised of Competitive Bid Loans). SECTION 1.04. Pricing Levels. For purposes of this Agreement, the -------------- following terms have the following meanings, subject to the concluding paragraph of this Section 1.04: "LEVEL I STATUS" exists at any date if, at such date, the Borrower's senior unsecured long-term debt is rated A- and A3 or higher. "LEVEL II STATUS" exists at any date if, at such date, the Borrower's senior unsecured long-term debt is rated BBB+ and Baa1. "LEVEL III STATUS" exists at any date if, at such date, the Borrower's senior unsecured long-term debt is rated BBB and Baa2. "LEVEL IV STATUS" exists at any date if, at such date, the Borrower's senior unsecured long-term debt is rated BBB- and Baa3. "LEVEL V STATUS" exists at any date if, at such date, the Borrower's senior unsecured long-term debt is rated BBB- or Baa3. "LEVEL VI STATUS" exists at any date if, at such date, no other Status exists. 11 The credit ratings to be utilized for purposes of the Euro-Dollar Margin, the Utilization Fee Rate and the Facility Fee Rate are those assigned by S&P or Moody's to the senior unsecured long-term debt securities of the Borrower without third-party credit enhancement, and any rating assigned to any other debt security of the Borrower shall be disregarded. The rating in effect at any date is that in effect at the close of business on such date. In the case of split ratings with respect to pricing from S&P and Moody's, the rating to be used to determine Status is the higher of the two (e.g. BBB+and Baa2 results in Level II Status); provided that in the event the split is more than one full category, the average (or the higher of two intermediate ratings) shall be used (e.g., BBB+ and Baa3 results in Level III Status, as does BBB+ and Ba1). ARTICLE II THE CREDITS SECTION 2.01. Commitments to Lend. Subject to the terms and conditions set ------------------- forth in this Agreement, each Lender severally and not jointly agrees, during the period from the Effective Date to but not including the Commitment Termination Date, to lend to the Borrower in United States Dollars pursuant to this Section 2.01 from time to time amounts such that the aggregate principal amount of Loans made by such Lender to the Borrower at any one time outstanding shall not exceed the amount of its Commitment. Each Borrowing under this Section 2.01 shall be in an aggregate principal amount of $10,000,000 or any larger multiple of $1,000,000 (except that any such Borrowing may be in the aggregate amount available in accordance with Section 3.02(b)(iii)) and shall be made from the several Lenders ratably in proportion to their respective Commitments. Within the limits specified in this Agreement, the Borrower may borrow pursuant to this Section 2.01, repay, or to the extent permitted by Section 2.11, prepay Loans and reborrow (other than Competitive Bid Loans) at any time under this Section 2.01. Within the limits of each Lender's Commitment, the aggregate amount of the Commitments of the Lenders shall be deemed used from time to time to the extent of the aggregate amount of the Competitive Bid Loans then outstanding, which deemed usage shall be allocated among the Lenders according to their respective Shares (such deemed usage being a "COMPETITIVE BID LOAN REDUCTION"). SECTION 2.02. Notice of Borrowings. The Borrower shall give the -------------------- Administrative Agent notice (a "NOTICE OF BORROWING") not later than 11:00 A.M. (New York City time) on (x) the date of each Base Rate Borrowing and (y) the third Euro-Dollar Business Day before each Euro-Dollar Borrowing, specifying: (a) the date of such Borrowing, which shall be a Domestic Business Day in the case of a Base Rate Borrowing or a Euro-Dollar Business Day in the case of a Euro-Dollar Borrowing, (b) the aggregate amount of such Borrowing, (c) whether the Loans comprising such Borrowing are to be Base Rate Loans or Euro-Dollar Loans, and (d) in the case of a Euro-Dollar Borrowing, the duration of the Interest Period applicable thereto, subject to the provisions of the definition of Interest Period. Notwithstanding the foregoing, no more than ten Euro-Dollar Borrowings shall be outstanding at any one time, and any Borrowing which would exceed such limitation shall be made as a Base Rate Borrowing. 12 SECTION 2.03. Competitive Bid Loans. --------------------- (a) Each Lender severally agrees that the Borrower may make Competitive Bid Borrowings under this Section 2.03 from time to time on any Domestic Business Day during the period from the date hereof until the date occurring 30 days prior to the Commitment Termination Date in the manner set forth below; provided, however, that, following the making of each Competitive Bid Borrowing, the aggregate amount of the Loans then outstanding shall not exceed the aggregate amount of the Commitments of the Lenders (computed without regard to any Competitive Bid Loan Reduction). (i) The Borrower may request a Competitive Bid Borrowing under this Section 2.03 by delivering to the Administrative Agent, by telecopier, confirmed immediately in writing, a notice of a Competitive Bid Borrowing (a "NOTICE OF COMPETITIVE BID BORROWING"), specifying therein (w) the requested date of such proposed Competitive Bid Borrowing, (x) the aggregate principal amount of such proposed Competitive Bid Borrowing, (y) in the case of a Competitive Bid Borrowing consisting of Competitive Bid Euro-Dollar Rate Loans, the Interest Period therefor, or in the case of a Competitive Bid Borrowing consisting of Fixed Rate Loans, the maturity date for repayment of each Fixed Rate Loan to be made as part of such Competitive Bid Borrowing (which maturity date may not be earlier than the date occurring 30 days after the date of such Competitive Bid Borrowing or later than the Commitment Termination Date) and the interest payment date or dates relating thereto, and (z) any other terms to be applicable to such Competitive Bid Borrowing, not later than 10:30 A.M. (New York City time) (A) at least one Domestic Business Day prior to the date of the proposed Competitive Bid Borrowing, if the Borrower shall specify in the Notice of Competitive Bid Borrowing that the Loans comprising such Competitive Bid Borrowing shall be Fixed Rate Loans and (B) at least four Domestic Business Days prior to the date of the proposed Competitive Bid Borrowing, if the Borrower shall specify in the Notice of Competitive Bid Borrowing that the Loans comprising such Competitive Bid Borrowing shall be Competitive Bid Euro-Dollar Rate Loans. Each Notice of Competitive Bid Borrowing shall be irrevocable and binding on the Borrower, except as provided in Section 2.03(a)(iii)(x). The Administrative Agent shall in turn promptly notify each Lender of each request for a Competitive Bid Borrowing received by it from the Borrower by sending such Lender a copy of the related Notice of Competitive Bid Borrowing. (ii) Each Lender may, if, in its sole discretion, it elects to do so, offer, irrevocably, to make one or more Competitive Bid Loans to the Borrower as part of such proposed Competitive Bid Borrowing, by notifying the Administrative Agent (which shall give prompt notice thereof to the Borrower) (A) before 9:30 A.M. (New York City time) on the date of such proposed Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of Fixed Rate Loans and (B) before 10:00 A.M. (New York City time) three Business Days before the date of such proposed Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of Competitive Bid Euro-Dollar Rate Loans, of (x) the minimum and maximum amount of Fixed Rate Loans (if any) which such Lender is prepared to make as part of such requested Competitive Bid Borrowing and the fixed rate of interest per annum which such Lender is prepared to offer in respect thereof, (y) the minimum and maximum amount of Competitive Bid Euro-Dollar Rate Loans (if any) which such Lender is prepared to make as part of such requested Competitive Bid Borrowing and the interest margin (expressed as a percentage rate per annum) to be added to or subtracted from the Euro-Dollar Rate and the Interest Period corresponding thereto which such Lender is prepared to offer in respect thereof and (z) such Lender's Competitive Bid Lending Office with respect to such Competitive Bid Loans; provided, however, that the amounts of such proposed Competitive Bid Loans offered by such Lender may, subject to the proviso to the first sentence of this Section 2.03(a), exceed such Lender's Commitment, if any, and provided, further, that if the Administrative Agent in its capacity as a 13 Lender shall, in its sole discretion, elect to make any such offer, it shall notify the Borrower of such offer at least 30 minutes before the time and on the date on which notice of such election is to be given to the Administrative Agent, by the other Lenders. If any Lender shall elect not to make such an offer in respect of any proposed Competitive Bid Borrowing, such Lender shall so notify the Administrative Agent thereof before the relevant times referred to in clauses (A) and (B) of this paragraph (ii) and such Lender shall not be obligated to, and shall not, make any Competitive Bid Loan as part of such Competitive Bid Borrowing; provided, however, that the failure by any Lender to give such notice shall not cause such Lender to be obligated to make any Competitive Bid Loan as part of such proposed Competitive Bid Borrowing. (iii) The Borrower shall, in turn, (A) before 10:30 A.M. (New York City time) on the date of such proposed Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of Fixed Rate Loans, and (B) before 11:00 A.M. (New York City time) three Business Days before the date of such proposed Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of Competitive Bid Euro-Dollar Rate Loans, either: (x) cancel such Competitive Bid Borrowing by giving the Administrative Agent notice to that effect, or (y) accept one or more of the offers made by any Lender or Lenders pursuant to paragraph (ii) above, in its sole discretion, by giving notice to the Administrative Agent of the amount of each Competitive Bid Loan (which amount shall be equal to or greater than the minimum amount, and equal to or less than the maximum amount, notified to the Borrower by the Administrative Agent on behalf of such Lender for such Competitive Bid Loan pursuant to paragraph (ii) above) to be made by each Lender as part of such Competitive Bid Borrowing, and reject any remaining offers made by Lenders pursuant to paragraph (ii) above by giving the Administrative Agent notice to that effect; provided, however, that if the Borrower elects to accept the offers made by any Lender or Lenders to make Competitive Bid Loans, it shall accept such offers in order of the lowest to the highest rates of interest offered by such Lenders. If two or more Lenders have offered the same interest rate, the amount to be borrowed at such interest rate will be allocated among such Lenders in proportion to the amount that each such Lender offered at such interest rate; and provided, further, that the aggregate amount of offers so accepted by the Borrower shall not exceed the amount of respective Competitive Bid Loans proposed by the Borrower in the relevant Notice of Competitive Bid Borrowing. (iv) If the Borrower notifies the Administrative Agent that such Competitive Bid Borrowing is cancelled pursuant to paragraph (iii)(x) above, the Administrative Agent shall give prompt notice thereof to the Lenders and such Competitive Bid Borrowing shall not be made. (v) If the Borrower accepts one or more of the offers made by any Lender or Lenders pursuant to paragraph (iii)(y) above, the Administrative Agent shall in turn promptly notify (A) each Lender that has made an offer as described in paragraph (ii) above, of the date and aggregate amount of such Competitive Bid Borrowing and whether or not any offer or offers made by such Lender pursuant to paragraph (ii) above have been accepted by the Borrower, (B) each Lender that is to make a Competitive Bid Loan as part of such Competitive Bid Borrowing, of the amount of each Competitive Bid Loan to be made by such Lender as part of such Competitive Bid Borrowing, and (C) each Lender that is to make a Competitive Bid Loan as part of such Competitive Bid Borrowing, upon receipt, that the Administrative Agent has received forms of documents appearing to fulfill the applicable conditions set forth in Article III. Each 14 Lender that is to make a Competitive Bid Loan as part of such Competitive Bid Borrowing shall, before 11:00 A.M. (New York City time) on the date of such Competitive Bid Borrowing specified in the notice received from the Administrative Agent pursuant to clause (A) of the preceding sentence or any later time when such Lender shall have received notice from the Administrative Agent pursuant to clause (C) of the preceding sentence, make available for the account of its Applicable Lending Office to the Administrative Agent in same day funds, such Lender's portion of such Competitive Bid Borrowing. Upon fulfillment of the applicable conditions set forth in Article III and after receipt by the Administrative Agent of such funds, the Administrative Agent will make such funds available to the Borrower at the location specified by the Borrower in its Notice of Competitive Bid Borrowing. Promptly after each Competitive Bid Borrowing, the Administrative Agent will notify each Lender of the amount of the Competitive Bid Borrowing, the consequent Competitive Bid Loan Reduction and the dates upon which such Competitive Bid Loan Reduction commenced and will terminate. (vi) If the Borrower notifies the Administrative Agent that it accepts one or more of the offers made by any Lender or Lenders pursuant to paragraph (iii)(y) above, such notice of acceptance shall be irrevocable and binding on the Borrower. The Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in the related Notice of Competitive Bid Borrowing for such Competitive Bid Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Competitive Bid Loan to be made by such Lender as part of such Competitive Bid Borrowing when such Competitive Bid Loan, as a result of such failure, is not made on such date. (b) Each Competitive Bid Borrowing shall be in an aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof. (c) Within the limits and on the conditions set forth in this Section 2.03, the Borrower may from time to time borrow under this Section 2.03, repay or prepay pursuant to subsection (d) below, and reborrow under this Section 2.03; provided, however, that a Competitive Bid Borrowing shall not be made within three Business Days of the date of any other Competitive Bid Borrowing. (d) The Borrower shall repay to the Administrative Agent for the account of each Lender that has made a Competitive Bid Loan, on the maturity date of each Competitive Bid Loan (such maturity date being that specified by the Borrower for repayment of such Competitive Bid Loan in the related Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and provided in the Competitive Bid Loan Note evidencing such Competitive Bid Loan), the then unpaid principal amount of such Competitive Bid Loan. The Borrower shall have no right to prepay any principal amount of any Competitive Bid Loan unless, and then only on the terms, specified by the Borrower for such Competitive Bid Loan in the related Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and set forth in the Competitive Bid Loan Note evidencing such Competitive Bid Loan. (e) The Borrower shall pay interest on the unpaid principal amount of each Competitive Bid Loan from the date of such Competitive Bid Loan to the date the principal amount of such Competitive Bid Loan is repaid in full, at the rate of interest for such Competitive Bid Loan specified by the Lender making such Competitive Bid Loan in its notice with respect thereto delivered pursuant to subsection (a)(ii) above, payable on the interest payment date or dates specified by the Borrower for such Competitive Bid Loan in the related Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above, or as otherwise provided in the Competitive Bid Loan Note 15 evidencing such Competitive Bid Loan. Upon the occurrence and during the continuance of an Event of Default, the Borrower shall pay interest on the amount of unpaid principal of, and accrued and unpaid interest on, each Competitive Bid Loan owing to a Lender, payable in arrears on the date or dates interest is payable thereon, at a rate per annum equal at all times to 2% per annum above the rate of interest per annum required to be paid on such Competitive Bid Loan pursuant to this paragraph (e), unless otherwise agreed between the Borrower and such Lender. (f) The Debt of the Borrower resulting from each Competitive Bid Loan made to the Borrower as part of a Competitive Bid Borrowing shall, if requested by any Lender making such Competitive Bid Loan, be evidenced by a separate Competitive Bid Loan Note of the Borrower payable to the order of such Lender. SECTION 2.04. Notice to Lenders; Funding of Loans. ----------------------------------- (a) Upon its receipt of a Notice of Borrowing, the Administrative Agent shall promptly notify each Lender of the contents thereof and of such Lender's Share (if any) of such Borrowing, and such Notice of Borrowing shall thereafter be irrevocable by the Borrower, except as specified in Section 2.03(a)(i). (b) Not later than 12:00 Noon (New York City time) on the date of each Borrowing (other than a Competitive Bid Borrowing), each Lender participating therein shall (except as provided in subsection (c) of this Section 2.04) make available its Share of such Borrowing, in Federal or other funds immediately available in New York City, to the Administrative Agent at its address specified pursuant to Section 9.01. Unless the Administrative Agent determines that any applicable condition specified in Article III has not been satisfied, the Administrative Agent will make the funds so received from the Lenders promptly available to the Borrower at the Administrative Agent's aforesaid address. (c) If any Lender makes a new Loan hereunder on a day on which the Borrower is to repay all or any part of an outstanding Loan from such Lender, such Lender shall apply the proceeds of its new Loan to make such repayment and only an amount equal to the difference (if any) between the amount being borrowed and the amount being repaid shall be made available by such Lender to the Administrative Agent as provided by subsection (b), or remitted by the Borrower to the Administrative Agent as provided in Section 2.12, as the case may be. (d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing (other than a Competitive Bid Borrowing) that such Lender will not make available to the Administrative Agent such Lender's Share of such Borrowing, the Administrative Agent may assume that such Lender has made such Share available to the Administrative Agent on the date of such Borrowing in accordance with subsections (b) and (c) of this Section 2.04 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such Share available to the Administrative Agent, such Lender and the Borrower severally and not jointly agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of the Borrower, a rate per annum equal to the higher of the Federal Funds Rate and the interest rate applicable thereto pursuant to Section 2.07 and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's Loan included in such Borrowing for purposes of this Agreement. 16 SECTION 2.05. Notes. ----- (a) Subject to Section 2.03(f), the Loans of each Lender to the Borrower shall, if requested by such Lender, be evidenced by a single Note of the Borrower payable to the order of such Lender for the account of its Applicable Lending Office in an amount equal to such Lender's Commitment. (b) Upon receipt of any Lender's Note pursuant to Section 3.01(a), the Administrative Agent shall forward such Note to such Lender. Each Lender shall record in accordance with its usual business practices the date, amount, type and maturity of each Loan made by it and the date and amount of each payment of principal made by the Borrower with respect thereto, and may, if such Lender so elects in connection with any transfer or enforcement of its Note, endorse on the schedule forming a part thereof appropriate notations to evidence the foregoing information with respect to each such Loan then outstanding; provided that neither the failure of any Lender to make any such recordation or endorsement nor any error therein shall affect the obligations of the Borrower hereunder or under the Notes. Each Lender is hereby irrevocably authorized by the Borrower to so endorse its Note and to attach to and make a part of its Note a continuation of any such schedule as and when required. SECTION 2.06. Maturity of Loans. Each Loan included in any Borrowing shall ----------------- mature, and the principal amount thereof shall be due and payable, on the last day of the Interest Period applicable to such Borrowing; provided that all Loans shall be due and payable on the Commitment Termination Date. SECTION 2.07. Interest Rates. -------------- (a) Each Base Rate Loan shall bear interest on the outstanding principal amount thereof, for each day from the date such Loan is made until it becomes due, at a rate per annum equal to the Base Rate for such day. Such interest shall be payable for each Interest Period on the last day thereof. Any overdue principal of or interest on any Base Rate Loan shall bear interest, payable on demand, for each day until paid at a rate per annum equal to the sum of 2% plus the rate otherwise applicable to Base Rate Loans for such day. (b) Each Euro-Dollar Loan shall bear interest on the outstanding principal amount thereof, for each day during the Interest Period applicable thereto, at a rate per annum equal to the sum of (i) the Euro-Dollar Rate applicable to such Interest Period and (ii) the Euro-Dollar Margin. Such interest shall be payable for each Interest Period on the last day thereof and, if such Interest Period is longer than three months, at intervals of three months after the first day thereof. Any overdue principal of or interest on any Euro-Dollar Loan shall bear interest, payable on demand, for each day from and including the date payment thereof was due to but excluding the date of actual payment, at a rate per annum equal to the sum of 2% plus the higher of (i) the sum of the Euro-Dollar Margin for such day plus the Euro-Dollar Rate applicable to the Interest Period for such Loan and (ii) the sum of the Euro-Dollar Margin plus the quotient obtained (rounded upward, if necessary, to the next higher 1/100 of 1%) by dividing (x) the average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the respective rates per annum at which one day (or, if such amount due remains unpaid more than three Euro-Dollar Business Days, then for such period of time not longer than three months as the Administrative Agent may select) deposits in dollars in an amount approximately equal to such overdue payment due to each of the Reference Banks are offered to such Euro-Dollar Reference Bank in the London interbank market for the applicable period determined as provided above by (y) 1.00 minus the Euro-Dollar Reserve Percentage (or, if the circumstances described in clause (a) or (b) of Section 8.01 shall exist, at a rate per annum equal to the sum of 2% plus the rate applicable to Base Rate Loans for such day). 17 (c) The Administrative Agent shall determine each interest rate applicable to the Loans hereunder. The Administrative Agent shall give prompt notice to the Borrower and the participating Lenders of each rate of interest so determined, and its determination thereof shall be conclusive in the absence of manifest error. (d) Each Reference Bank agrees to use its best efforts to furnish quotations to the Administrative Agent as contemplated by this Section 2.07. If any Reference Bank does not furnish a timely quotation, the Administrative Agent shall determine the relevant interest rate on the basis of the quotation or quotations furnished by the remaining Reference Bank or Banks or, if none of such quotations is available on a timely basis, the provisions of Section 8.01 shall apply. (e) Notwithstanding the rates of interest specified in this Section 2.07 or elsewhere herein, effective immediately upon the occurrence of an Event of Default, and for as long thereafter as such Event of Default shall be continuing, the principal balance of all Loans shall bear interest, payable on demand, for each day from and including the date payment thereof was due, to but excluding the date of actual payment, at a rate per annum equal to the sum of 2% plus the applicable interest rate then in effect for such day. SECTION 2.08. Fees. ---- (a) The Borrower shall pay to the Administrative Agent for the account of the Lenders ratably in proportion to their respective Shares (or, if the Commitments shall have been terminated, in proportion to the aggregate principal amount of their Loans (other than Competitive Bid Loans) outstanding), a facility fee at the Facility Fee Rate. Such facility fee shall accrue (i) from and including the Effective Date to but excluding the Commitment Termination Date, on the daily average aggregate amount of the Commitments (whether used or unused) and (ii) from and including the Commitment Termination Date to but excluding the date the Loans shall be repaid in their entirety, on the daily average aggregate outstanding principal amount of the Loans. (b) The Borrower agrees to pay to the Administrative Agent for the account of each Lender for (i) each date prior to the Commitment Termination Date on which the aggregate outstanding Loans exceed 33% of the Commitments and (ii) each date on which the average aggregate principal amount of outstanding Loans during the most recently completed 30-day period exceeds 33% of the Commitments, a fee on the aggregate amount of the outstanding Loans at the Utilization Fee Rate. (c) Accrued and unpaid fees under this Section 2.08 shall be payable quarterly in arrears on the last day of each March, June, September and December and any balance shall be payable upon the Commitment Termination Date. 18 SECTION 2.09. Mandatory Termination of Commitments. ------------------------------------ (a) The Commitments shall terminate on the Commitment Termination Date, and any Loans then outstanding (together with accrued and unpaid interest thereon) shall be due and payable on such date. The aggregate outstanding principal amount of the Loans shall at no time exceed the aggregate of the Commitments. If on any date on which the Commitments are reduced the aggregate outstanding principal amount of the Loans exceeds the aggregate of the Commitments as so reduced, then the Borrower shall be obligated to repay (together with accrued and unpaid interest to the date of repayment) on such date a principal amount of the Loans equal to such excess. (b) Each Competitive Bid Loan shall be due and payable on the maturity date specified in the Borrower's Notice of Competitive Bid Borrowing requesting such Competitive Bid Loan (which such maturity date shall be not later than the Commitment Termination Date). SECTION 2.10. Optional Reduction of Commitments. The Borrower may, --------------------------------- upon at least three Domestic Business Days' notice to the Administrative Agent, (i) terminate the Commitments at any time, in whole or in part, if no Loans are outstanding at such time or (ii) ratably and permanently reduce from time to time, by an aggregate amount of $10,000,000 or any larger multiple of $1,000,000 thereof, the aggregate amount of the Commitments in excess of the aggregate outstanding principal amount of the Loans. Upon receipt of any notice pursuant to this Section 2.10, the Administrative Agent shall promptly notify each of the Lenders thereof. Commitments terminated or reduced pursuant to this Section 2.10 may not be reinstated. SECTION 2.11. Optional Prepayments. -------------------- (a) Subject in the case of any Euro-Dollar Loans to Section 2.13, the Borrower may, (x) upon notice to the Administrative Agent not later than 10:30 A.M. (New York City time) on the date of prepayment, prepay any Base Rate Borrowing and (y) upon not less than two Euro-Dollar Business Days' notice to the Administrative Agent, prepay any Euro-Dollar Borrowing, in whole at any time, or in part from time to time in amounts aggregating $10,000,000 or any larger multiple of $1,000,000 thereof, by paying the principal amount being prepaid together with interest accrued and unpaid thereon to the date of prepayment. Each such optional prepayment shall be applied to prepay ratably the Loans of the several Lenders included in such Borrowing. (b) Competitive Bid Loans shall not be prepaid except as may be agreed by the Borrower and the affected Lender. (c) Upon receipt of a notice of prepayment pursuant to this Section 2.11, the Administrative Agent shall promptly notify each Lender of the contents thereof and of such Lender's ratable share of such prepayment, and such notice shall thereafter be irrevocable by the Borrower. SECTION 2.12. Payments. -------- (a) The Borrower shall make each payment of principal of, and interest on, the Loans and of fees payable and of additional compensation hereunder, not later than 12:00 Noon (New York City time) on the date when due, in Federal or other funds immediately available, without set-off, counterclaim or deduction of any kind (except as otherwise expressly agreed), to the Administrative Agent at its address referred to in Section 9.01. The Administrative Agent will promptly distribute to each Lender in like funds its ratable share of each such payment received by the Administrative Agent for the account of the Lenders. Payments in respect of each Competitive Bid Loan Borrowing shall be distributed to each Lender participating in such Borrowing on a pro rata basis in accordance with the 19 respective principal amounts of the Competitive Bid Loans comprising such Borrowing. The Borrower shall repay each Loan in full on a date which is no later than the Commitment Termination Date. (b) Whenever any payment of principal of, or interest on, the Base Rate Loans or Fixed Rate Loans or of fees or additional compensation hereunder shall be due on a day which is not a Domestic Business Day, the date for payment thereof shall be extended to the next succeeding Domestic Business Day. Whenever any payment of principal of, or interest on, the Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans shall be due on a day which is not a Euro-Dollar Business Day, the date for payment thereof shall be extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another calendar month, in which case the date for payment thereof shall be the next preceding Euro-Dollar Business Day. If the date for any payment of principal is extended by operation of law or otherwise, interest thereon shall be payable for such extended time. (c) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Lenders hereunder that the Borrower will not make such payment in full, the Administrative Agent may assume that the Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent that the Borrower shall not have so made such payment, each Lender shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Administrative Agent, at the Federal Funds Rate. SECTION 2.13. Funding Losses. If the Borrower makes any payment of -------------- principal with respect to any Euro-Dollar Loan (pursuant to Article VI or VIII or otherwise) on any day other than the last day of the Interest Period applicable thereto, or if the Borrower fails to borrow or prepay any Euro-Dollar Loans after notice has been given to any Lender in accordance with Section 2.04(a) or 2.11(c), the Borrower shall reimburse each Lender on demand for any resulting loss or expense incurred by it (or by an existing or prospective Participant in the related Loan), including any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding loss of margin for the period after any such payment or failure to borrow; provided that such Lender shall have delivered to the Borrower a certificate as to the amount of such loss or expense, which certificate shall be conclusive in the absence of manifest error. SECTION 2.14. Computation of Interest and Fees. Interest based on the Base -------------------------------- Rate hereunder (if based on clause (a) of the definition of "BASE RATE") shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and paid for the actual number of days elapsed (including the first day but excluding the last day). All other interest and fees shall be computed on the basis of a year of 360 days and paid for the actual number of days elapsed (including the first day but excluding the last day). SECTION 2.15. Regulation D Compensation. Each Lender may require the ------------------------- Borrower to pay, contemporaneously with each payment of interest on Euro-Dollar Loans and Competitive Bid Euro-Dollar Rate Loans, additional interest on the related Euro-Dollar Loan or Competitive Bid Euro-Dollar Rate Loan, as applicable, of such Lender at a rate per annum determined by such Lender up to but not exceeding the excess of (i) (A) the applicable Euro-Dollar Rate divided by (B) one minus the Euro-Dollar Reserve Percentage over (ii) the applicable Euro-Dollar Rate. Any Lender wishing to require payment of such additional interest (x) shall so notify the Borrower and the Administrative Agent, in which case such additional interest on the Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans, as applicable, of such Lender shall be payable to such Lender at the place 20 indicated in such notice with respect to each Interest Period commencing at least three Euro-Dollar Business Days after such Lender gives such notice and (y) shall notify the Borrower at least five Euro-Dollar Business Days before each date on which interest is payable on the Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans, as applicable, of the amount then due under this Section 2.15. SECTION 2.16. Withholding Tax Exemption. On the Effective Date, each Lender ------------------------- that is not incorporated or organized under the laws of the United States of America or a state thereof agrees that it will deliver to each of the Borrower and the Administrative Agent two duly completed copies of United States Internal Revenue Service (i) Form W-8ECI (claiming exemption from withholding because the income is effectively connected with a U.S. trade or business) (or any successor form) or (ii) Form W-8BEN (claiming exemption from, or a reduction of, withholding tax under an income tax treaty) (or any successor form), certifying in either case that such Lender is entitled to receive payments under this Agreement and the Notes without deduction or withholding of any United States federal income taxes. Each Lender which so delivers a Form W-8ECI or Form W-8BEN further undertakes to deliver to each of the Borrower and the Administrative Agent two additional copies of such form (or a successor form) on or before the date that such form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent form so delivered by it, and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrower or the Administrative Agent, in each case certifying that such Lender is entitled to receive payments under this Agreement and the Notes without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender advises the Borrower and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. SECTION 2.17. Extension of Commitments. ------------------------ (a) The Borrower may, upon not more than 45 days' (but no later than 30 days prior to the then existing Commitment Termination Date) notice prior to the then current Commitment Termination Date to the Administrative Agent (which shall notify each Lender of receipt of such request), propose to extend the Commitment Termination Date for an additional 364 days measured from the Commitment Termination Date then in effect. Each Lender shall endeavor to respond to such request, whether affirmatively or negatively (such determination to be in the individual and sole discretion of such Lender), by written notice to the Administrative Agent no earlier than 30 days prior to the then existing Commitment Termination Date (but in any event no later than 20 days prior to the then existing Commitment Termination Date). The Administrative Agent will notify the Borrower, in writing, of the Lenders' responses no later than 15 days prior to the then existing Commitment Termination Date. Subject to the execution by the Borrower, the Administrative Agent and such Lenders of a duly completed Extension Agreement in substantially the form of Exhibit E hereto, the Commitment Termination Date applicable to the Commitment of each Lender so affirmatively notifying the Borrower and the Administrative Agent (each a "CONSENTING LENDER") shall, effective as at the Commitment Termination Date (the "EXTENSION DATE"), be extended for the period specified above; provided that no Commitment Termination Date of any Lender shall be extended unless by the date 15 days prior to the Commitment Termination Date then in effect, Lenders having at least 50% in aggregate amount of the Commitments in effect at the time any such extension is requested shall have elected so to extend their Commitments. Any Lender which does not give such notice to the Borrower and the Administrative Agent by the date 15 days prior to the Commitment Termination Date then in effect (each, a "NON-CONSENTING LENDER") shall be deemed to have elected not to extend as requested, and the Commitment of each non-extending Lender shall terminate on its Commitment Termination Date determined without giving effect to such requested extension. 21 (b) If any Lender party to this Agreement shall not elect to extend its Commitment pursuant to subsection (a) of this Section 2.17, the Borrower may designate another lender or other lenders (which may be, but need not be, one or more of the Lenders), which at the time agree to become a party to this Agreement (each, an "ASSUMING LENDER"). (c) If less than all of the Lenders consent to any such request pursuant to subsection (a) of this Section 2.17, the Administrative Agent shall promptly so notify the Consenting Lenders, and each Consenting Lender may, in its sole discretion, give written notice to the Administrative Agent not later than 10 days prior to the Commitment Termination Date then in effect of the amount of the Non-Consenting Lenders' Commitments for which it is willing to accept an assignment. If the Consenting Lenders notify the Administrative Agent that they are willing to accept assignments of Commitments in an aggregate amount that exceeds the amount of the Commitments of the Non-Consenting Lenders, such Commitments shall be allocated among the Consenting Lenders willing to accept such assignments in such amounts as are agreed between the Borrower and the Administrative Agent. If after giving effect to the assignments of Commitments described above there remain any Commitments of Non-Consenting Lenders, the Borrower may arrange for one or more Consenting Lenders or other Assignees as Assuming Lenders to assume, effective as of the Extension Date, any Non-Consenting Lender's Commitment and all of the obligations of such Non-Consenting Lender under this Agreement thereafter arising, without recourse to or warranty by, or expense to, such Non-Consenting Lender; provided, however, that the amount of the Commitment of any such Assuming Lender as a result of such substitution shall in no event be less than $10,000,000 unless the amount of the Commitment of such Non-Consenting Lender is less than $10,000,000, in which case such Assuming Lender shall assume all of such lesser amount; and provided further that: (i) any such Consenting Lender or Assuming Lender shall have paid to such Non-Consenting Lender (A) the aggregate principal amount of, and any interest accrued and unpaid to the effective date of the assignment on, the outstanding Loans, if any, of such Non-Consenting Lender plus (B) any accrued but unpaid fees owing to such Non-Consenting Lender as of the effective date of such assignment; (ii) all additional costs reimbursements, expense reimbursements and indemnities payable to such Non-Consenting Lender, and all other accrued and unpaid amounts owing to such Non-Consenting Lender hereunder, as of the effective date of such assignment shall have been paid to such Non-Consenting Lender; and (iii) with respect to any such Assuming Lender, the applicable processing and recordation fee required under Section 9.07(c) for such assignment shall have been paid; provided further that such Non-Consenting Lender's rights and obligations under Sections 8.03 and 9.03 shall survive such assignment as to matters occurring prior to the date of assignment. At least three Domestic Business Days prior to any Extension Date, (A) each such Assuming Lender, if any, shall have delivered to the Borrower and the Administrative Agent an Assignment and Assumption Agreement, duly executed by such Assuming Lender, such Non-Consenting Lender, the Borrower and the Administrative Agent, and (B) each Non-Consenting Lender being replaced pursuant to this Section 2.17 shall have delivered to the Administrative Agent any Note or Notes held by such Non-Consenting Lender. Upon the payment or prepayment of all amounts referred to in clauses (i), (ii) and (iii) of the immediately preceding sentence, each such Consenting Lender or Assuming Lender, as of the Extension Date, will be substituted for such Non-Consenting Lender under this Agreement and shall be a Lender for all purposes of this Agreement, without any further acknowledgement by or the consent of the other Lenders, and the obligations of each such Non-Consenting Lender hereunder shall, by the provisions hereof, be released and discharged, except for any obligations which accrue prior to the date of such payment or prepayment. 22 SECTION 2.18. Increased Commitments; Additional Lenders. ----------------------------------------- (a) Subsequent to the Effective Date and provided no Default has occurred and is continuing, the Borrower may, upon at least 30 days' notice to the Administrative Agent (which shall promptly provide a copy of such notice to the Lenders), propose to increase the aggregate amount of the Commitments by an amount not to exceed $60,000,000 (the amount of any such increase, the "INCREASED COMMITMENTS"). Each Lender party, to this Agreement at such time shall have the right (but not the obligation), for a period of 5 Domestic Business Days following receipt of such notice, to elect by notice to the Borrower and the Administrative Agent to increase its Commitment by a principal amount which bears the same ratio to the Increased Commitments as its then Commitment bears to the aggregate Commitments then existing. (b) If any Lender party to this Agreement shall not elect to increase its Commitment pursuant to subsection (a) of this Section 2.18, the Borrower may designate another Lender or other lenders (which may be, but need not be, one or more of the Lenders) which at the time agree to (i) in the case of any such Lender that, increase its Commitment and (ii) in the case of any other such lender (an "ADDITIONAL LENDER"), become a party to this Agreement. The sum of the increases in the Commitments of the Lenders pursuant to this subsection (b) plus the Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Increased Commitments. (c) An increase in the aggregate amount of the Commitments pursuant to this Section 2.18 shall become effective upon the receipt by the Administrative Agent of an agreement in form and substance satisfactory to the Administrative Agent signed by the Borrower, by each Additional Lender and by each Lender whose Commitment is to be increased, setting forth the new Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, together with such evidence of appropriate corporate authorization on the part of the Borrower with respect to the Increased Commitments and such opinions of counsel for the Borrower with respect to the Increased Commitments as the Administrative Agent may reasonably request. ARTICLE III CONDITIONS TO EFFECTIVENESS AND BORROWINGS SECTION 3.01. Conditions Precedent to Effectiveness. The effectiveness of ------------------------------------- this Agreement is subject to (a) the receipt by the Administrative Agent of executed counterparts of this Agreement by the Borrower and each Lender and the receipt by the Administrative Agent of a sufficient number of copies of each of the following on or before the Effective Date, each, unless otherwise noted, dated the Effective Date, and in form and substance satisfactory to the Administrative Agent: (i) a copy of the Certificate of Incorporation of the Borrower, certified as of a recent date by the Secretary of State of the State of Delaware, a copy of the By-Laws of the Borrower, certified by the Secretary or an Assistant Secretary of the Borrower, and a good standing certificate for the Borrower from the Secretary of State of the State of Delaware; and (ii) (A) an opinion of Weil, Gotshal & Manges LLP, counsel for the Administrative Agent, substantially in the form of Exhibit B hereto, dated as of the Effective Date; and (B) an opinion of Andrea Utecht, in-house counsel to the Borrower, substantially in the form of Exhibit C hereto, dated as of the Effective Date; and 23 (iii) the Notes, if requested by the Lenders; and (iv) all documents (including an incumbency certificate for the Borrower and certification by the Secretary or Assistant Secretary of the Borrower of the board resolutions approving this Agreement and the other documents and transactions contemplated hereby) the Administrative Agent may reasonably request relating to the existence of the Borrower, the corporate authority for and the validity of this Agreement, and any other matter relevant hereto, all in form and substance satisfactory to the Administrative Agent; and (b) The termination of all commitments under the Existing Credit Agreement and the payment in full of all Debt outstanding thereunder (it being understood that the proceeds of the Loans hereunder may be used to satisfy the payment obligation under the Existing Credit Agreement described in this clause (b)); and (c) The condition precedent that, except to the extent provided below, the representations and warranties of the Borrower contained in Article IV are true and correct in all material respects on and as of the date hereof, except to the extent that any such representation or warranty expressly relates only to an earlier date, in which case it was correct as of such earlier date. SECTION 3.02. Conditions Precedent to Each Borrowing and Extension of ------------------------------------------------------- Commitment. The obligation of each Lender to make a Loan on the occasion of a - ---------- Borrowing (including the initial Borrowing) and the extension of any Lender's Commitment pursuant to Section 2.17 shall be subject to the satisfaction of the following conditions precedent: (a) in the case of a Borrowing, the Administrative Agent shall have received a Notice of Borrowing or Competitive Bid Notice of Borrowing, as the case may be, with respect thereto in accordance with Section 2.02 or Section 2.03, as the case may be; and (b) on the date of such Borrowing or on such Extension Date the following statements shall be true (and each of the giving of the Notice of Borrowing or Notice of Competitive Bid Borrowing, as applicable, and the acceptance by the Borrower of the proceeds of such Borrowing shall constitute a representation and warranty by the Borrower that on the date of such Borrowing or Competitive Bid Borrowing, as the case may be, such statements are true): (i) except to the extent provided below, the representations and warranties of the Borrower contained in Article IV are true and correct in all material respects on and as of the date of such Borrowing or Competitive Bid Borrowing, as the case may be, or on such Extension Date, before and after giving effect to such Borrowing or Competitive Bid Borrowing, as the case may be, or to the extension of any Lender's Commitment pursuant to Section 2.17 and to the application of the proceeds therefrom, as though made on and as of such date, except to the extent that any such representation or warranty expressly relates only to an earlier date, in which case it was correct as of such earlier date; provided that the representations contained in Section 4.04(c) and Section 4.05 need only be true and correct on the Effective Date and on each date of an extension of any Lender's Commitment pursuant to Section 2.17; (ii) no event has occurred and is continuing, or would result from such Borrowing or Competitive Bid Borrowing, as the case may be, or from the application of the proceeds therefrom, which constitutes a Default or Event of Default; and 24 (iii) immediately after such Borrowing or Competitive Bid Borrowing, as the case may be, the aggregate outstanding principal amount of the Loans will not exceed the aggregate amount of the Commitments. ARTICLE IV REPRESENTATIONS AND WARRANTIES The Borrower represents and warrants as to itself and its Subsidiaries that: SECTION 4.01. Corporate, Limited Liability Company or Partnership Existence ------------------------------------------------------------- and Power. The Borrower and each Material Subsidiary (i) is a corporation, - --------- limited liability company or partnership duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, (ii) has all corporate, limited liability company or partnership powers and all material governmental licenses, authorizations, consents and approvals required to carry on its business and (iii) is duly qualified as a foreign corporation, limited liability company or partnership and in good standing in each jurisdiction where qualification is required by the nature of its business or the character and location of its property, business or customers, except, as to clauses (ii) and (iii), where the failure to so qualify or to have such licenses, authorizations, consents and approvals, in the aggregate, would not have a Material Adverse Effect. SECTION 4.02. Corporate and Governmental Authorization; No Contravention. ---------------------------------------------------------- The execution, delivery and performance by the Borrower of this Agreement and the Notes are within the Borrower's corporate power, have been duly authorized by all necessary corporate action, require no action by or in respect of, or filing with, any governmental body, agency or official and do not contravene, or constitute a default under, any provision of applicable law or regulation or of the certificate of incorporation or by-laws of the Borrower or of any agreement, judgment, injunction, order, decree or other instrument binding upon the Borrower or result in or require the creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries. SECTION 4.03. Binding Effect. This Agreement constitutes a legal, valid and -------------- binding agreement of the Borrower and the Notes which, when executed and delivered in accordance with this Agreement, will constitute the legal, valid and binding obligations of the Borrower, in each case enforceable in accordance with their respective terms. SECTION 4.04. Financial Information. --------------------- (a) The consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of December 31, 2000, and the related consolidated statements of income, cash flows and changes in stockholders' equity for the fiscal year then ended, reported on by KPMG Peat Marwick and set forth in the Borrower's Annual Report on Form 10-K for the fiscal year ended December 31, 2000, filed with the Securities and Exchange Commission, a copy of which has been delivered to each of the Lenders, fairly present in all material respects, in conformity with generally accepted accounting principles consistently applied, the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations, cash flows and changes in stockholders' equity for such fiscal year. (b) The consolidated unaudited balance sheet of the Borrower and its Consolidated Subsidiaries as of September 30, 2001, and the related consolidated statements of income, cash flows and changes in stockholders' equity for that portion of the fiscal year ending as of the close of such fiscal quarter, setting forth in comparative form the figures for the corresponding period in the prior year, set 25 forth in the Borrower's Form 10-Q for the fiscal quarter ended September 30, 2001, filed with the Securities and Exchange Commission, a copy of which has been delivered to each of the Lenders, fairly present in all material respects, in conformity with generally accepted accounting principles consistently applied, the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations, cash flows and changes in stockholders' equity for such fiscal quarter. (c) Since December 31, 2000, there has been no change which has a Material Adverse Effect. SECTION 4.05. Litigation. There is no action, suit, proceeding or ---------- arbitration pending against, or to the knowledge of the Borrower threatened against or affecting, the Borrower or any of its Subsidiaries before any court or arbitrator or any governmental body, agency or official in which there is a reasonable likelihood of an adverse decision which would have a Material Adverse Effect or which in any manner questions the validity or enforceability of this Agreement or the Notes. SECTION 4.06. Compliance with ERISA. Each member of the ERISA Group has --------------------- fulfilled its obligations under the minimum funding standards of ERISA and the Internal Revenue Code with respect to each Plan and is in compliance in all material respects with the presently applicable provisions of ERISA and the Internal Revenue Code with respect to each Plan. No member of the ERISA Group has (i) sought a waiver of the minimum funding standard under Section 412 of the Internal Revenue Code in respect of any Plan, (ii) failed to make any contribution or payment to any Plan or Multiemployer Plan or made any amendment to any Plan which, in either case, has resulted or could result in the imposition of a Lien or the posting of a bond or other security under ERISA or the Internal Revenue Code or (iii) incurred any liability under Title IV of ERISA other than a liability to the PBGC for premiums under Section 4007 of ERISA. SECTION 4.07. Environmental Matters. In the ordinary course of its --------------------- business, the Borrower conducts an ongoing review of the effect of Environmental Laws on the business, operations and properties of the Borrower and its Subsidiaries, in the course of which it identifies and evaluates associated liabilities and costs (including, without limitation, any capital or operating expenditures required for clean-up or closure of properties presently or previously owned, any capital or operating expenditures required to achieve or maintain compliance with environmental protection standards imposed by law or as a condition of any license, permit or contract, any related constraints on operating activities, including any periodic or permanent shutdown of any facility or reduction in the level of or change in the nature of operations conducted thereat and any actual or potential liabilities to third parties, including employees, and any related costs and expenses). On the basis of this review, there is no violation by the Borrower and its Subsidiaries of any Environmental Law that is reasonably likely to result in a Material Adverse Effect. SECTION 4.08. Taxes. United States Federal income tax returns of the ----- Borrower and its Consolidated Subsidiaries have been examined and closed through the fiscal year ended December 31, 1997. The Borrower and each of its Consolidated Subsidiaries have filed all United States Federal income tax returns and all other material tax returns that are required to be filed by them and have paid all taxes due pursuant to such returns or pursuant to any assessment received by any of them, except for any such taxes being diligently contested in good faith and by appropriate proceedings. Adequate reserves have been provided on the books of the Borrower and its Consolidated Subsidiaries in respect of all taxes or other governmental charges in accordance with generally accepted accounting principles, and no tax liabilities in excess of the amount so provided are anticipated that could reasonably be expected to have a Material Adverse Effect. 26 SECTION 4.09. Full Disclosure. All information heretofore furnished by the --------------- Borrower or any of its Subsidiaries to the Administrative Agent or any Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby was, and all such information hereafter furnished by the Borrower or any of its Subsidiaries to the Administrative Agent or any Lender will be, true and accurate in every material respect or based on reasonable estimates on the date as of which such information is stated or certified. SECTION 4.10. Compliance with Laws. The Borrower and each Material -------------------- Subsidiary are in compliance with all applicable laws, rules and regulations, other than such laws, rules or regulations (i) the validity or applicability of which the Borrower or such Subsidiary is contesting in good faith or (ii) the failure to comply with which cannot reasonably be expected to have a Material Adverse Effect. SECTION 4.11. Not an Investment Company. The Borrower is not an "investment ------------------------- company" or a company controlled by an "investment company" within the meaning of the Investment Company Act of 1940, as amended, or a "holding company" or a "subsidiary company" of a "holding company" within the meaning of the Public Utility Holding Company Act of 1935, as amended. SECTION 4.12. Margin Regulations. The Borrower is not engaged in the ------------------ business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U of the Federal Reserve Board), and no proceeds of any Borrowing will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock in contravention of Regulation T, U or X of the Federal Reserve Board. SECTION 4.13. Pari Passu Obligations. This Agreement and the other Loan ---------------------- Documents and the obligations evidenced hereby and thereby are and will at all times be direct and unconditional general obligations of the Borrower, and rank and will at all times rank in right of payment and otherwise at least pari passu with all unsecured Debt of the Borrower, whether now existing or hereafter outstanding, subject to statutory priority and the effect of bankruptcy and insolvency law. ARTICLE V COVENANTS The Borrower agrees that, so long as any Lender has any Commitment hereunder or any amount payable under any Note remains unpaid: SECTION 5.01. Information. The Borrower will deliver to each of the ----------- Lenders: (a) within 90 days after the end of each fiscal year of the Borrower, a consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of such fiscal year and the related consolidated statements of income, cash flows and changes in stockholders' equity for such fiscal year, setting forth in each case in comparative form the figures as of the end of and for the previous fiscal year, all in reasonable detail and reported on without Qualification by KPMG Peat Marwick or any other independent public accountants of nationally recognized standing acceptable to the Administrative Agent; (b) within 45 days after the end of each of the first three quarters of each fiscal year of the Borrower, a consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of such quarter, and the related 27 consolidated statements of income for such quarter and for the portion of the Borrower's fiscal year ended at the end of such quarter and the related consolidated statement of cash flows for the portion of the Borrower's fiscal year ended at the end of such quarter, setting forth in each case in comparative form the consolidated balance sheet as of the end of the previous fiscal year and the consolidated statements of income for the corresponding quarter and the corresponding portion of the Borrower's previous fiscal year, all certified (subject to normal year-end adjustments) as to fairness of presentation and consistency by the chief financial officer, the treasurer or the chief accounting officer of the Borrower; (c) simultaneously with the delivery of each set of financial statements referred to in paragraphs (a) and (b) of this Section 5.01, a certificate of the Borrower executed by the chief financial officer, the treasurer or the chief accounting officer of the Borrower (i) setting forth in reasonable detail such calculations as are required to establish whether the Borrower was in compliance with the requirements of Section 5.11 on the date of such financial statements and (ii) stating whether there exists on the date of such certificate any Default and, if any Default then exists, setting forth the details thereof and the action that the Borrower is taking or proposes to take with respect thereto; (d) simultaneously with the delivery of each set of financial statements referred to in paragraphs (a) and (b) of this Section 5.01, a schedule, certified as to its accuracy and completeness by the chief financial officer, the treasurer or the chief accounting officer of the Borrower, listing in reasonable detail the Debt balance of each Restricted Subsidiary where such Debt balance is in excess of $1,000,000, listing only Debt instruments of $1,000,000 or more; provided that no such schedule need be furnished if at the date of the related financial statements (i) the aggregate amount of Debt of domestic Restricted Subsidiaries did not exceed $100,000,000 and (ii) the aggregate amount of Debt of all Restricted Subsidiaries did not exceed $125,000,000; (e) within five Domestic Business Days after any Principal Officer of the Borrower obtains knowledge of any Default, if such Default is then continuing, a certificate of the Borrower executed by the chief financial officer, the treasurer or the chief accounting officer of the Borrower setting forth the details thereof and the action that the Borrower is taking or proposes to take with respect thereto; (f) promptly upon the mailing thereof to the shareholders of the Borrower generally, copies of all financial statements, reports and proxy statements so mailed; (g) promptly upon the filing thereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent), annual, quarterly or monthly reports and any reports on Form 8-K (or any successor form) that the Borrower or any of its Subsidiaries shall have filed with the Securities and Exchange Commission; (h) within 14 days after any member of the ERISA Group (i) gives or is required to give notice to the PBGC of any "REPORTABLE EVENT" (as defined in Section 4043 of ERISA) with respect to any Plan which might constitute grounds for a termination of such Plan under Title IV of ERISA, or knows that the plan administrator of any Plan has given or is required to give notice of any such reportable event, a copy of the notice of such reportable event given or required to be given to the PBGC; (ii) receives notice of complete or partial withdrawal liability under Title IV of ERISA which liability exceeds $1,000,000 or notice that any Multiemployer Plan is in reorganization, is insolvent or has been terminated, a copy of such notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent to terminate, impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or appoint a trustee to administer, any 38 Plan, a copy of such notice; (iv) applies for a waiver of the minimum funding standard under Section 412 of the Internal Revenue Code, a copy of such application; (v) gives notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and other information filed with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any payment or contribution to any Plan or Multiemployer Plan or makes any amendment to any Plan which in either case has resulted or could result in the imposition of a Lien or the posting of a bond or other security, a certificate of the chief financial officer, the chief accounting officer or the treasurer of the Borrower setting forth details as to such occurrence and the action, if any, which the Borrower or applicable member of the ERISA Group is required or proposes to take; (i) as soon as practicable after a Principal Officer obtains knowledge of the commencement of an action, suit or proceeding against the Borrower or any Subsidiary before any court or arbitrator or any governmental body, agency or official in which there is a reasonable likelihood of an adverse decision which would have a Material Adverse Effect or which in any manner questions the validity or enforceability of this Agreement or any of the transactions contemplated hereby, information as to the nature of such pending or threatened action, suit or proceeding; and (j) from time to time such additional information regarding the business, properties, financial position, results of operations, or prospects of the Borrower or any of its Subsidiaries as the Administrative Agent, at the request of any Lender, may reasonably request. SECTION 5.02. Payment of Obligations. The Borrower will pay and discharge, ---------------------- and will cause each of its Subsidiaries to pay and discharge, at or before maturity, all of its material obligations and liabilities and all lawful taxes, assessments and governmental charges or levies upon it or its property or assets, except where the same may be diligently contested in good faith by appropriate proceedings or where the failure to so pay and discharge would not have a Material Adverse Effect, and will maintain, and will cause each of its Subsidiaries to maintain, in accordance with United States generally accepted accounting principles as in effect from time to time, appropriate reserves for the accrual of any of the same. SECTION 5.03. Maintenance of Property; Insurance. ---------------------------------- (a) The Borrower will keep, and will cause each Restricted Subsidiary to keep, all material property useful and necessary in its business in good working order and condition, normal wear and tear excepted. (b) The Borrower will, and will cause each of its Material Subsidiaries to, maintain (either in the name of the Borrower or in such Subsidiary's own name) with financially sound and responsible insurance companies, insurance on all of its properties in at least such amounts and against at least such risks (and with such risk retention) as are usually maintained in the same general area by companies of established repute engaged in the same or a similar business; and will furnish to the Lenders, upon request from the Administrative Agent, information presented in reasonable detail as to the insurance so carried. SECTION 5.04. Inspection of Property, Books and Records. The Borrower will ----------------------------------------- keep, and will cause each of its Subsidiaries to keep, proper books of record and account in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Subject to limitations imposed by law or contract on access to and dissemination of classified or other confidential information, the Borrower will permit, and will cause each of its Subsidiaries to permit, 29 representatives of any Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records and make copies thereof or abstracts therefrom, and to discuss affairs, finances and accounts with directors, officers, employees and independent public accountants, all at such reasonable times and as often as may reasonably be desired, upon reasonable advance notice to the Borrower. SECTION 5.05. Maintenance of Existence, Rights, Etc. ------------------------------------- (a) Subject to Section 5.07, the Borrower will preserve, renew and keep in full force and effect, and will cause each of its Subsidiaries to preserve, renew and keep in full force and effect their respective corporate, limited liability company or partnership existence and its rights, privileges and franchises necessary or desirable in the normal conduct of business, except when failure to do so would not result in a Material Adverse Effect; provided that nothing in this Section 5.05 shall prohibit (i) the merger of a Restricted Subsidiary into the Borrower in a transaction permitted under Section 5.07 or the merger or consolidation of a Restricted Subsidiary with or into another Person if, in each case, after giving effect thereto, no Default shall have occurred and be continuing or (ii) the termination of the corporate, limited liability company or partnership existence of any Restricted Subsidiary if the Borrower in good faith determines that such termination is in the best interest of the Borrower and will not result in a Material Adverse Effect. (b) At no time will any Unrestricted Subsidiary hold, directly or indirectly, any capital stock of any Restricted Subsidiary. SECTION 5.06. Liens. The Borrower will not, and will not permit any ----- Restricted Subsidiary to, create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except: (a) Liens existing on the date hereof securing Debt outstanding on the date hereof; (b) Liens incidental to the conduct of its business or the ownership of its assets which (i) arise in the ordinary course of business, (ii) do not secure Debt and (iii) do not in the aggregate materially detract from the value of its assets or materially impair the use thereof in the operation of its business; (c) Liens on property or assets of any Person existing at the time such Person becomes a Restricted Subsidiary; (d) Liens on any property or assets existing at the time of acquisition thereof (including acquisition through merger or consolidation) or to secure the payment of all or any part of the purchase price or construction cost thereof or to secure any Debt incurred prior to, at the time of or within 120 days after the later of the acquisition of such property or assets or shares of stock or Debt or the completion of any such construction and the commencement of operation of such property, for the purpose of financing all or any part of the purchase price or construction cost thereof; (e) Liens in favor of a governmental unit to secure payments under any contract or statute, or to secure any Debt incurred in financing the acquisition, construction or improvement of property subject thereto, including Liens on, and created or arising in connection with the financing of the acquisition, construction or improvement of, any facility used or to be used in the business of the Borrower or any Subsidiary through the issuance of obligations, the income from which shall be excludable from gross income by virtue of Section 103 of the Internal Revenue 30 Code (or any subsequently adopted provisions thereof providing for a specific exclusion from gross income); (f) Liens on assets of Restricted Subsidiaries securing Debt owing to the Borrower; (g) any extension, renewal, substitution, or replacement (or successive extensions, renewals, substitutions or replacements), in whole or in part, of any Lien referred to in clauses (a) through (f) above or the Debt secured thereby; provided that (1) such extension, renewal, substitution or replacement Lien shall be limited to all or any part of the same property or assets, shares of stock or Debt that was subject to the Lien extended, renewed, substituted or replaced (plus improvements on such property) and (2) the Debt secured by such Lien at such time is not increased; and (h) other Liens securing Debt in an aggregate principal amount at any time outstanding not to exceed $50,000,000; provided that, notwithstanding the foregoing, the Borrower will not, and will not permit any Restricted Subsidiary to, create, assume or suffer to exist any Lien on any stock, Debt or other security of any Unrestricted Subsidiary now owned or hereafter acquired by it. SECTION 5.07. Consolidations, Mergers and Sales of Assets. The Borrower ------------------------------------------- will not and will not permit any of its domestic Material Subsidiaries to (i) consolidate with or merge with or into any other Person or (ii) sell, assign, lease, transfer or otherwise dispose of all or substantially all of its assets to any other Person; provided that (x) the Borrower may consolidate or merge with or into another Person if (A) immediately after giving effect to such consolidation or merger, no Default shall have occurred and be continuing, (B) the surviving entity is a domestic corporation and (C) the Person surviving such consolidation or merger is the Borrower and (y) any domestic Material Subsidiary may consolidate or merge with or into the Borrower or another domestic Material Subsidiary if (A) immediately after giving effect to such consolidation or merger, no Default shall have occurred and be continuing, (B) the surviving entity is a domestic corporation and (C) the Person surviving such consolidation or merger (other than a consolidation or merger with or into the Borrower) is a domestic Material Subsidiary. SECTION 5.08. Change in Nature of Business. The Borrower will not make or ---------------------------- permit to be made any material change to the nature of the business of the Borrower and its Consolidated Subsidiaries, taken as a whole, as carried on as of the date hereof. SECTION 5.09. Use of Proceeds. The proceeds of the Borrowings under this --------------- Agreement will be used by the Borrower for the repayment in full of the Debt outstanding under the Existing Credit Agreement and for general corporate purposes. None of such proceeds will be used, directly or indirectly, in violation of Regulation T, U or X of the Federal Reserve System. SECTION 5.10. Compliance with Laws. The Borrower will comply, and cause -------------------- each of its Subsidiaries to comply, in all material respects with all requirements of law (including, without limitation, ERISA, Environmental Laws and the rules and regulations thereunder), except where failure to so comply would not have a Material Adverse Effect. SECTION 5.11. Financial Covenants. ------------------- (a) The Borrower and its Consolidated Subsidiaries will maintain a ratio of Consolidated Debt to Consolidated EBITDA, as determined on the last day of each fiscal quarter, for the four fiscal quarters ending on such day, of not more than 3.50 to 1.0. 31 (b) The Borrower and its Consolidated Subsidiaries shall maintain a Consolidated Interest Coverage Ratio, as determined on the last day of each fiscal quarter, for the four fiscal quarters ending on such day, of not less than 4.25 to 1.0. (c) The Borrower and its Consolidated Subsidiaries shall maintain a Consolidated Adjusted Net Worth, as determined on the last day of each fiscal quarter beginning on the fiscal quarter ended March 31, 2002 of not less than 90% of Consolidated Adjusted Net Worth as at December 31, 2001; provided that the amount of Consolidated Adjusted Net Worth required to be maintained under this Section 5.11(c) shall be increased at the end of each fiscal quarter beginning on the fiscal quarter ended March 31, 2002 by an amount equal to 50% of Adjusted Net Income (if a positive number) for such fiscal quarter. SECTION 5.12. Hedging Contracts. The Borrower will not, and will not permit ----------------- any of its Subsidiaries to, enter into any Hedging Contract solely for speculative purposes or other than for the purpose of hedging risks associated with the businesses of the Borrower and its Subsidiaries, as done in the ordinary course of such businesses. ARTICLE VI DEFAULTS SECTION 6.01. Defaults. If one or more of the following events ("EVENTS -------- OF DEFAULT") shall have occurred and be continuing: (a) any principal of any Loan shall not be paid when due, or any interest, any fees or other amount payable hereunder shall not be paid within three Domestic Business Days of the due date thereof; (b) the Borrower shall fail to observe or perform any covenant contained in Section 5.01(e), 5.05, 5.06, 5.07, 5.09 or 5.11; (c) the Borrower shall fail to observe or perform any of its covenants or agreements contained in this Agreement (other than those covered by clause (a) or (b) above), for 30 days after notice thereof has been given to the Borrower by the Administrative Agent at the request of any Lender; (d) any representation, warranty, certification or statement by the Borrower made in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto or deemed to be made pursuant to Section 3.01 shall have been incorrect in any material respect when made or deemed to be made; (e) the Borrower and/or one or more of its Subsidiaries shall fail to make any payment in respect of Material Financial Obligations when due after giving effect to any applicable grace period; (f) any event or condition shall occur that (i) results in the acceleration of the maturity of any Material Financial Obligation or (ii) enables the holder or holders of any Material Financial Obligation, or any Person acting on behalf of such holder or holders, to accelerate the maturity thereof; provided that no Event of Default under this clause (ii) shall occur unless and until any required notice has been given and/or period of time has elapsed with respect to any such Material Financial Obligation so as to perfect such right to accelerate; and provided further, 32 that no Event of Default under this clause (ii) shall occur during the 45 day period following the Effective Date if (x) the event or condition that shall have occurred enabling the holder or holders of any Material Financial Obligation, or any Person acting on behalf of such holder or holders, to accelerate the maturity thereof shall be a failure of the Borrower to comply with informational requests or reporting requirements under such Material Financial Obligation and (y) no notice of default shall have been delivered to the Borrower by such holder or holders (or Person acting on their behalf) in connection with such event or condition; (g) the Borrower or any Material Subsidiary shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any of the foregoing; (h) an involuntary case or other proceeding shall be commenced against the Borrower or any Material Subsidiary seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days; or an order for relief shall be entered against the Borrower or any Material Subsidiary under the Federal bankruptcy laws as now or hereafter in effect; (i) any member of the ERISA Group shall fail to pay when due an amount or amounts aggregating in excess of $25,000,000 which it shall have become liable to pay under Title IV of ERISA; or notice of intent to terminate a Material Plan shall be filed under Title IV of ERISA by any member of the ERISA Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer, any Material Plan; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause one or more members of the ERISA Group to incur a current payment obligation in excess of $25,000,000; (j) one or more Enforceable Judgments for the payment of money in an aggregate amount exceeding $25,000,000 shall be rendered against the Borrower or any Material Subsidiary and shall continue unsatisfied and unstayed for a period of 30 days; or (k) (i) any Person or two or more Persons acting in concert (other than a Plan or Plans) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended) of 20% or more of the outstanding shares of voting stock of the Borrower; or (ii) during any period of 12 consecutive months, commencing before or after the date of this Agreement, individuals who at the beginning of such 12 month period were directors of the Borrower (together with any new directors whose election by the Borrower's board of directors or whose nomination for 33 election by the Borrower's stockholders was approved by a vote of a majority of the directors then still in office who either were directors at the beginning of such period or whose election or nomination was previously so approved) cease for any reason to constitute a majority of the board of directors of the Borrower; then, and in every such event, the Administrative Agent shall (i) if requested by the Required Lenders, by notice to the Borrower, terminate the Commitments, and the Commitments shall thereupon terminate, and (ii) if requested by Lenders whose Loans represent at least 66 2/3% in aggregate principal amount of the Loans, by notice to the Borrower, declare the Loans (together with accrued interest thereon) and all other amounts payable by it hereunder to be, and such Loans and amounts shall thereupon become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; provided that: (A) in the case of any of the Events of Default specified in clause (g) or (h) of this Section 6.01 with respect to the Borrower, immediately and without any notice to the Borrower or any other act by the Administrative Agent or the Lenders, and (B) in the case of any of the Events of Default specified in clause (k) of this Section 6.01, unless the Required Lenders shall have waived such Event of Default within 30 days of its occurrence, on the 30th day after such occurrence, the Commitments shall terminate and the Loans (together with accrued interest thereon) and all other amounts payable by the Borrower hereunder shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower. SECTION 6.02. Notice of Default. The Administrative Agent shall give notice ----------------- to the Borrower under Section 6.01(c) promptly upon being requested to do so by any Lender and shall thereupon notify all the Lenders thereof. ARTICLE VII THE ADMINISTRATIVE AGENT SECTION 7.01. Appointment and Authorization. Each Lender irrevocably ----------------------------- appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the Notes as are delegated to the Administrative Agent by the terms hereof or thereof, together with all such powers as are reasonably incidental thereto. SECTION 7.02. Administrative Agent and Affiliates. Citibank shall have the ----------------------------------- same rights and powers under this Agreement as any other Lender and may exercise or refrain from exercising the same as though it were not the Administrative Agent, and Citibank and its affiliates may accept deposits from, lend money to, and generally engage in any kind of business with, the Borrower or any Subsidiary or affiliate of the Borrower as if it were not the Administrative Agent hereunder. SECTION 7.03. Action by Agent. The obligations of the Administrative Agent --------------- hereunder are only those expressly set forth herein. Without limiting the generality of the foregoing, the Administrative Agent shall not be required to take any action with respect to any Default or Event of Default, except as expressly provided in Article VI. 34 SECTION 7.04. Consultation with Experts. The Administrative Agent may ------------------------- consult with legal counsel (who may be counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts. SECTION 7.05. Liability of Administrative Agent. Neither the Administrative --------------------------------- Agent nor any of its directors, officers, agents or employees shall be liable to any Lender for any action taken or not taken by it in connection herewith (i) with the consent or at the request of the Required Lenders (or, if specifically required by Section 9.04, all of the Lenders) or (ii) in the absence of its own gross negligence or willful misconduct. Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (i) any statement, warranty or representation made in connection with this Agreement or any borrowing hereunder; (ii) the performance or observance of any of the covenants or agreements of the Borrower; (iii) the satisfaction of any condition specified in Article III, except receipt of items required to be delivered to the Administrative Agent; or (iv) the validity, effectiveness or genuineness of this Agreement, the Notes or any other instrument or writing furnished in connection herewith. The Administrative Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties. SECTION 7.06. Indemnification. Each Lender shall, ratably in accordance --------------- with its Commitment, indemnify the Administrative Agent (to the extent not reimbursed by the Borrower) against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Administrative Agent's gross negligence or willful misconduct) that the Administrative Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Administrative Agent hereunder. SECTION 7.07. Credit Decision. Each Lender acknowledges that it has, --------------- independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking any action under this Agreement. SECTION 7.08. Administrative Agent's Fees. The Borrower shall pay to the --------------------------- Administrative Agent for its own account fees in the amounts and at the times previously agreed upon between the Borrower and the Administrative Agent. SECTION 7.09. Successor Administrative Agent. The Administrative Agent may ------------------------------ resign at any time by giving notice thereof to the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent gives notice of resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, which shall be a commercial bank organized or licensed under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $500,000,000. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Agent shall thereupon succeed to and become vested with all the rights and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After any retiring Administrative Agent's resignation hereunder as 35 Administrative Agent, the provisions of this Article VII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent. SECTION 7.10. Other Agents None of the Lenders identified on the facing ------------ page or signature pages of this Agreement as a "syndication agent" or a "co-documentation agent" shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders so identified shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders so identified in deciding to enter into this Agreement or in taking or not taking action hereunder. ARTICLE VIII CHANGE IN CIRCUMSTANCES SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair. -------------------------------------------------------- If on or prior to the first day of any Interest Period for any Euro-Dollar Borrowing: (a) the Administrative Agent is advised by the Reference Banks that deposits in United States dollars (in the applicable amounts) are not being offered to the Reference Banks in the relevant market for such Interest Period, or (b) in the case of a Borrowing consisting of Euro-Dollar Loans, Lenders having 66-2/3% or more of the aggregate amount of the Commitments advise the Administrative Agent that the Euro-Dollar Rate, as determined by the Administrative Agent, will not adequately and fairly reflect the cost to such Lenders of funding their Euro-Dollar Loans for such Interest Period, the Administrative Agent shall forthwith give notice thereof to the Borrower and the Lenders, whereupon; until the Administrative Agent notifies the Borrower that the circumstances giving rise to such suspension no longer exist, the obligations of the Lenders to make Euro-Dollar Loans shall be suspended. Unless the Borrower notifies the Administrative Agent at least two Euro-Dollar Business Days before the date of any Euro-Dollar Borrowing for which a Notice of Borrowing or a Notice of Competitive Bid Borrowing, as the case may be, has previously been given that it elects not to borrow on such date, such Borrowing shall instead be made as a Base Rate Borrowing. SECTION 8.02. Illegality. If, on or after the date of this Agreement, the ---------- adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or its Euro-Dollar Lending Office) with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency, shall make it unlawful or impossible for any Lender (or its Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans, as applicable, to the Borrower and such Lender shall so notify the Administrative Agent, the Administrative Agent shall forthwith give notice thereof to the other Lenders and the Borrower, whereupon until such Lender notifies the Borrower and the Administrative Agent that the circumstances giving rise to such suspension no longer exist, the obligation of such Lender to make Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans to the Borrower shall be suspended. Before giving any notice to the Administrative Agent pursuant to this Section 8.02, such Lender shall designate a different Euro-Dollar Lending Office if such designation will avoid the need for giving such notice and will not, in the judgment of such Lender, be otherwise disadvantageous to such Lender. If such Lender shall determine that it may not lawfully continue to maintain and fund any of its 36 outstanding Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans to the Borrower to maturity and shall so specify in such notice, the Borrower shall immediately prepay in full the then outstanding principal amount of each such Euro-Dollar Loan or Competitive Bid Euro-Dollar Rate Loan, as applicable, together with accrued interest thereon. Concurrently with prepaying each such Euro-Dollar Loan or Competitive Bid Euro-Dollar Rate Loan, as applicable, the Borrower shall borrow a Base Rate Loan in an equal principal amount from such Lender (on which interest and principal shall be payable contemporaneously with the related Euro-Dollar Loans of the other Lenders), and such Lender shall make such a Base Rate Loan. SECTION 8.03. Increased Cost and Reduced Return. --------------------------------- (a) If on or after the date hereof, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or its Applicable Lending Office) with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency: (i) shall subject any Lender (or its Applicable Lending Office) to any tax, duty or other charge with respect to its Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans, its Notes or its obligation to make Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans, or shall change the basis of taxation of payments to any Lender (or its Applicable Lending Office) of the principal of or interest on its Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans or any other amounts due under this Agreement in respect of its Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans or its obligation to make Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans (except for changes in the rate of tax on the overall net income of such Lender or its Applicable Lending Office imposed by the jurisdiction in which such Lender's principal executive office or Applicable Lending Office is located); or (ii) shall impose, modify or deem applicable any reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System, but excluding, with respect to any Euro-Dollar Loan or Competitive Bid Euro-Dollar Rate Loan, any such requirement with respect to which such Lender is entitled to compensation during the relevant Interest Period under Section 2.15), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (or its Applicable Lending Office) or shall impose on any Lender (or its Applicable Lending Office) or on the United States market for certificates of deposit or the London interbank market any other condition affecting its Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans, its Notes or its obligation to make Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans; and the result of any of the foregoing is to increase the cost to such Lender (or its Applicable Lending Office) of making or maintaining any Euro-Dollar Loan or Competitive Bid Euro-Dollar Rate Loans, or to reduce the amount of any sum received or receivable by such Lender (or its Applicable Lending Office) under this Agreement or under its Notes with respect thereto, by an amount deemed by such Lender to be material, then, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction. (b) If any Lender shall have determined that the adoption after the date hereof of any applicable law, rule or regulation regarding capital adequacy, or any change after the date hereof in any 37 such law, rule or regulation, or any change after the date hereof in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or any request or directive after the date hereof regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on capital of such Lender (or its Parent) as a consequence of such Lender's obligations hereunder to a level below that which such Lender (or its Parent) could have achieved but for such adoption, change, request or directive (taking into consideration its policies with respect to capital adequacy) by an amount deemed by such Lender to be material, then from time to time, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender (or its Parent) for such reduction. (c) Each Lender will promptly notify the Borrower and the Administrative Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Lender to compensation pursuant to this Section 8.03 and will designate a different Applicable Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the sole judgment of such Lender, be otherwise disadvantageous to such Lender. The Lender shall deliver a written statement of such Lender as to the amount due, if any, under this Section 8.03. Such written statement shall set forth in reasonable detail the calculations upon which such Lender determined such amount and shall be final, conclusive and binding on the Borrower in the absence of manifest error. Determination of amounts payable under this Section 8.03 in connection with a Euro-Dollar Loan or a Competitive Bid Euro-Dollar Rate Loan shall be calculated as though such Lender funded such Loan through the purchase of a deposit of the type and maturity corresponding to the deposit used as a reference in determining the rate of interest applicable to such Loan whether in fact that is the case or not. In determining such amount, such Lender may use any reasonable averaging and attribution methods. (d) In the event that any Lender makes a claim under this Section 8.03 (any such Lender, an "AFFECTED LENDER"), the Borrower may substitute another financial institution for such Affected Lender hereunder, upon reasonable prior written notice (which written notice must be given within 90 days following the occurrence of such claim) by the Borrower to the Administrative Agent and the Affected Lender that the Borrower intends to make such substitution; provided, however, that at the time of such substitution or replacement (i) no Default has occurred or is continuing, (ii) the Borrower shall have satisfied all of its obligations hereunder and under the Notes relating to such Lender, (iii) any such replacement or substitute financial institution is acceptable to the Administrative Agent and (iv) if such replacement or substitute financial institution is not an existing Lender, the Borrower shall have paid to the Administrative Agent an administrative fee in the amount of $3,500. SECTION 8.04. Base Rate Loans Substituted for Affected Euro-Dollar Loans. ---------------------------------------------------------- If (i) the obligation of any Lender to make Euro-Dollar Loans has been suspended pursuant to Section 8.02 or (ii) any Lender has demanded compensation under Section 8.03(a) and the Borrower shall, by at least five Euro-Dollar Business Days' prior notice to such Lender through the Administrative Agent, have elected that the provisions of this Section 8.04 shall apply to such Lender, then, unless and until such Lender notifies the Borrower that the circumstances giving rise to such suspension or demand for compensation no longer apply: (a) all Loans which would otherwise be made by such Lender as Euro-Dollar Loans shall be made instead as Base Rate Loans (on which interest and principal shall be payable contemporaneously with the related Euro-Dollar Loans of the other Lenders), and 38 (b) after each of its Euro-Dollar Loans has been repaid, all payments of principal which would otherwise be applied to repay such Euro-Dollar Loans shall be applied to repay its Base Rate Loans instead. ARTICLE IX MISCELLANEOUS SECTION 9.01. Notices. All notices, requests and other communications to ------- any party hereunder shall be in writing, or by any telecommunication device capable of creating a written record (including bank wire, telex, facsimile transmission, email or similar writing) and shall be given to such party: (x) in the case of the Borrower or the Administrative Agent, at its address, email address or telex number set forth on the signature pages hereof, (y) in the case of any Lender, at its address, email address or telex number set forth in its Administrative Questionnaire or (z) in the case of any party, such other address, email address or telex number as such party may hereafter specify for the purpose by notice to the Administrative Agent and the Borrower. Each such notice, request or other communication shall be effective (i) if given by telex, when such telex is transmitted to the telex number specified in this Section 9.01 and the appropriate answerback is received, (ii) if given by mail, 72 hours after such communication is deposited in the U.S. mail with first class postage prepaid, addressed as aforesaid or (iii) if given by any other means, when delivered at the address specified in this Section 9.01; provided that notices to the Administrative Agent under Article II or Article VIII shall not be effective until received. SECTION 9.02. No Waivers. No failure or delay by the Administrative Agent ---------- or any Lender in exercising any right, power or privilege hereunder or under any Note shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided or in any Note shall be cumulative and not exclusive of any rights or remedies provided by law. SECTION 9.03. Expenses; Documentary Taxes; Indemnification for Litigation. ----------------------------------------------------------- (a) The Borrower shall pay (i) all reasonable out-of-pocket expenses of the Administrative Agent, including fees and disbursements of special counsel for the Administrative Agent, in connection with the preparation and administration of this Agreement, any waiver or consent hereunder or any amendment hereof or any Default or alleged Default and (ii) if an Event of Default occurs, all reasonable out-of-pocket expenses incurred by the Administrative Agent and each Lender, including fees and disbursements of counsel, in connection with such Event of Default and collection, bankruptcy, insolvency and other enforcement proceedings resulting therefrom. The Borrower agrees to indemnify each Lender against any transfer taxes, documentary taxes, assessments or charges made by any governmental authority by reason of the execution and delivery of this Agreement or any of such Lender's Notes. (b) The Borrower agrees to indemnify each Lender and hold each Lender harmless from and against any and all liabilities, losses, damages, costs and expenses of any kind, including, without limitation, the reasonable fees and disbursements of counsel, which may be incurred by such Lender (or by the Administrative Agent in connection with its actions as Administrative Agent hereunder) in connection with any investigative, administrative or judicial proceeding (whether or not such Lender shall be designated a party thereto) relating to or arising out of this Agreement, any transactions contemplated hereby or any actual or proposed use of proceeds of Loans hereunder; provided that no Lender shall have the right to be indemnified hereunder for (i) its own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction, (ii) any default in its Commitment to make Loans hereunder as finally determined by a court of competent jurisdiction or (iii) any settlement 39 of any investigation, administrative or judicial proceeding entered into without the consent of the Borrower, which consent shall not be unreasonably withheld. SECTION 9.04. Amendments and Waivers. Any provision of this Agreement or ---------------------- the Notes may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by the Borrower and the Required Lenders (and, if the rights or duties of the Administrative Agent are affected thereby, by the Administrative Agent); provided that no such amendment or waiver shall, unless signed by all the Lenders, (i) except as contemplated by Section 2.18, increase or decrease the Commitment of any Lender (except for a ratable decrease in the Commitments of all Lenders) or subject any Lender to any additional obligation, (ii) reduce the principal of or rate of interest on any Loan or any fees hereunder, (iii) except in connection with Section 2.17, postpone the date fixed for any payment of principal of or interest on any Loan or any fees hereunder or for termination of any Commitment or (iv) change the percentage of the Commitments or of the aggregate unpaid principal amount of the Notes, or the number of Lenders, which shall be required for the Lenders or any of them to take any action under this Section 9.04 or any other provision of this Agreement; and provided further, that no waiver of any of the conditions specified in Section 3.01 or 3.02 relating to a Competitive Bid Borrowing shall be effective unless consented to by all Lenders making Competitive Bid Loans as a part of such Competitive Bid Borrowing. SECTION 9.05. Sharing of Set-Offs. Each Lender agrees that if it shall, by ------------------- exercising any right of set-off or counterclaim or otherwise, receive payment of a proportion of the aggregate amount of principal and interest due with respect to any Loan made by it which is greater than the proportion received by any other Lender in respect of the aggregate amount of principal and interest due with respect to any Loan made by such other Lender, the Lender receiving such proportionately greater payment shall purchase such participations in the Loans made by the other Lenders, and such other adjustments shall be made, as may be required so that all such payments of principal and interest with respect to the Loans made by the Lenders shall be shared by the Lenders pro rata; provided that nothing in this Section 9.05 shall impair the right of any Lender to exercise any right of set-off or counterclaim it may have and to apply the amount subject to such exercise to the payment of Debt of the Borrower other than its Debt hereunder or under the Notes. The Borrower agrees, to the fullest extent it may effectively do so under applicable law, that any holder of a participation in a Loan, whether or not acquired pursuant to the foregoing arrangements, may exercise rights of set-off or counterclaim and other rights with respect to such participation as fully as if such holder of a participation were a direct creditor of the Borrower in the amount of such participation. SECTION 9.06. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT AND ----------------------------------------- EACH NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE BORROWER HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. THE BORROWER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. 40 SECTION 9.07. Successors and Assigns. ---------------------- (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that the Borrower may not assign or otherwise transfer any of its rights or obligations under this Agreement without the consent of all Lenders. (b) Any Lender may at any time grant to one or more banks or other financial institutions (each a "PARTICIPANT") participating interests in its Commitment or any or all of its Loans. In the event of any such grant by a Lender of a participating interest to a Participant, whether or not upon notice to the Borrower and the Administrative Agent, such Lender shall remain responsible for the performance of its obligations hereunder, and the Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement. Any agreement pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall retain the sole right and responsibility to enforce the obligations of the Borrower hereunder including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement; provided that such participation agreement may provide that such Lender will not agree to any modification, amendment or waiver of this Agreement described in clause (i), (ii) or (iii) of Section 9.04 without the consent of the Participant. The Borrower agrees that each Participant shall, to the extent provided in its participation agreement, be entitled to the benefits of Article VIII with respect to its participating interest. An assignment or other transfer which is not permitted by subsection (c) or (d) below shall be given effect for purposes of this Agreement only to the extent of a participating interest granted in accordance with this subsection (b). (c) Any Lender may at any time assign to one or more banks or other financial institutions (each an "ASSIGNEE") all, or a proportionate part (equivalent to an original Commitment of at least $10,000,000 or in increments of $1,000,000 in excess thereof) of all, of its rights and obligations under this Agreement and the Notes, and such Assignee shall assume such rights and obligations, pursuant to an Assignment and Assumption Agreement in substantially the form of Exhibit D hereto executed by such Assignee and such transferor Lender, with (and subject to) the consent of the Borrower (the consent of the Borrower not to be unreasonably withheld) and the Administrative Agent (the consent of the Administrative Agent not to be unreasonably withheld); provided that if an Assignee is an affiliate of such transferor Lender, no such consent shall be required and such Lender shall be permitted to assign its rights and obligations under this Agreement and the Notes to such affiliate upon notice thereof to the Borrower and the Administrative Agent. Upon execution and delivery of such instrument and payment by such Assignee to such transferor Lender of an amount equal to the purchase price as agreed between such transferor Lender and such Assignee, such Assignee shall be a Lender party to this Agreement and shall have all the rights and obligations of a Lender with a Commitment as set forth in such instrument of assumption, and the transferor Lender shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall be required. Upon the consummation of any assignment pursuant to this subsection (c), the transferor Lender, the Administrative Agent and the Borrower shall make appropriate arrangements so that, if required, a new Note or Notes are issued to the Assignee. In connection with any such assignment, the transferor or transferee Lender shall pay to the Administrative Agent an administrative fee for processing such assignment in the amount of $3,500. If the Assignee is not incorporated or organized under the laws of the United States of America or a state thereof, it shall, prior to the first date on which interest or fees are payable hereunder for its account, deliver to the Borrower and the Administrative Agent certification as to exemption from deduction or withholding of any United States federal income taxes in accordance with Section 2.16. (d) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each a "TRANSFEREE") and any prospective Transferee any and all financial information in such Lender's 41 possession concerning the Borrower which has been delivered to such Lender by it pursuant to this Agreement or which has been delivered to such Lender by it in connection with such Lender's credit evaluation prior to entering into this Agreement, subject to Section 9.11. (e) Any Lender may at any time assign all or any portion of its rights under this Agreement and its Notes to a Federal Reserve Bank. No such assignment shall release the transferor Lender from its obligations hereunder. (f) No Transferee (including for the purpose of this subparagraph (f) a different Applicable Lending Office of a Lender) shall be entitled to receive any greater payment under Section 8.03 than the transferor Lender would have been entitled to receive with respect to the rights transferred, unless such transfer is made with the Borrower's prior written consent or by reason of the provisions of Section 8.02 or 8.03 requiring such Lender to designate a different Applicable Lending Office under certain circumstances or at a time when the circumstances giving rise to such greater payment did not exist. SECTION 9.08. Collateral. Each of the Lenders represents to the ---------- Administrative Agent and each of the other Lenders that it in good faith is not relying upon any "MARGIN STOCK" (as defined in Regulation U) as collateral in the extension or maintenance of the credit provided for in this Agreement. SECTION 9.09. Counterparts; Integration. This Agreement may be signed in ------------------------- any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement and the Notes constitute the entire agreement and understanding among the parties hereto and supersede any and all prior agreements and understandings, oral or written, relating to the subject matter hereof. SECTION 9.10. WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT -------------------- AND THE LENDERS HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY. SECTION 9.11. Confidentiality. Each Lender agrees to hold any information --------------- which it may receive or has received from the Borrower pursuant to this Agreement and which has been identified as confidential, in confidence, except for disclosure (i) to legal counsel, accountants, and other professional advisors to such Lender, to any actual or prospective Transferee and to any affiliates of such Lender in each case subject to the receiving party's undertaking to comply with the restrictions of this Section 9.11, (ii) required by law, regulation, or legal process, (iii) as requested by regulatory officials, (iv) in connection with any legal proceeding to enforce this Agreement and (v) of information which is in the public domain at the time of such disclosure through no fault of any of the Lenders. 42 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written. FMC CORPORATION By: /s/ Thomas C. Deas, Jr. -------------------------- Name: Thomas C. Deas, Jr. 1735 Market Street Philadelphia, PA 19103 Attention: Treasurer Telephone number: (215) 299-6000 Telecopy number: (215) 299-6557 Email address: tom_deas@fmc.com CITIBANK, N.A., as Administrative Agent and as Lender By: /s/ Carolyn A. Sheridan -------------------------- Name: Carolyn A. Sheridan Title: Managing Director Two Penns Way, Suite 200 New Castle, Delaware 19720 Attention: Telephone number: Telecopier number: Email address: BANK OF AMERICA, N.A., as Syndication Agent and as Lender By: /s/ Wendy J. Gorman -------------------------- Name: Wendy J. Gorman Title: Principal ABN AMRO BANK N.V., as Co-Documentation Agent and as Lender By: /s/ Angela Noique -------------------------- Name: Angela Noique Title: Group Vice President 43 By: /s/ Scott J. Albert -------------------------- Name: Scott J. Albert Title: Group Vice President FIRST UNION NATIONAL BANK, as Co-Documentation Agent and as Lender By: /s/ John P. Lunghime -------------------------- Name: John P. Lunghime Title: SVP & Director THE ROYAL BANK OF SCOTLAND, as Lender By: /s/ Jayne Seaford -------------------------- Name: Jayne Seaford Title: Senior Vice President NATIONAL CITY BANK, as Lender By: /s/ Thomas J. McDonnell -------------------------- Name: Thomas J. McDonnell Title: Senior Vice President THE NORTHERN TRUST COMPANY, as Lender By: /s/ Nicole D. Boehm -------------------------- Name: Nicole D. Boehm Title: Second Vice President THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND, as Lender By: /s/ Lisa Stewart -------------------------- Name: Lisa Stewart Title: Senior Executive 44 SCHEDULE I LENDERS AND COMMITMENTS - -------------------------------------------------------------------------------- LENDER COMMITMENT - -------------------------------------------------------------------------------- Citibank, N.A. $45,000,000 - -------------------------------------------------------------------------------- Bank of America, N.A. $45,000,000 - -------------------------------------------------------------------------------- ABN AMRO Bank N.V. $35,000,000 - -------------------------------------------------------------------------------- First Union National Bank $35,000,000 - -------------------------------------------------------------------------------- The Royal Bank of Scotland $25,000,000 - -------------------------------------------------------------------------------- National City Bank $20,000,000 - -------------------------------------------------------------------------------- The Northern Trust Company $20,000,000 - -------------------------------------------------------------------------------- The Governor and Company of the Bank of Ireland $15,000,000 - -------------------------------------------------------------------------------- TOTAL COMMITMENT (AS OF THE EFFECTIVE DATE): $240,000,000 SCHEDULE 1.01(A) CERTAIN FOREIGN SUBSIDIARIES FMC Quimica do Brasil Limitada FMC Agroquimica de Mexico, S.A. de C.V. FMC Foret, S.A. SCHEDULE 1.01(B) MATERIAL SUBSIDIARIES FMC Wyoming Corporation Electro Quimica Mexicana, S.A. de C.V. FMC Agroquimica de Mexico S.A. de C.V. FMC Foret, S.A. FMC BioPolymer A/S Minera del Altiplano, S.A. FMC Chemicals Limited EXHIBIT A-1 FORM OF NOTE U.S. $ New York, New York ----------------- ------- ---, 200- FOR VALUE RECEIVED, the undersigned, FMC CORPORATION, a Delaware corporation (the "BORROWER"), HEREBY PROMISES TO PAY to the order of (the "LENDER"), for the account of its Applicable Lending Office, - -------------- the unpaid principal amount of each Loan made by the Lender to the Borrower pursuant to the Credit Agreement referred to below on the last day of the Interest Period relating to such Loan. The Borrower promises to pay interest on the unpaid principal amount of each such Loan on the dates and at the rate or rates provided for in such Credit Agreement. All such payments of principal and interest shall be made in lawful money of the United States in Federal or other immediately available funds at the office of Citibank, N.A., Two Penns Way, Suite 200, New Castle, Delaware 19720. All Loans made by the Lender, the respective types and maturities thereof and all repayments of the principal thereof shall be recorded by the Lender and, if the Lender so elects in connection with any transfer or enforcement hereof, appropriate notations to evidence the foregoing information with respect to each such Loan then outstanding may be endorsed by the Lender on the schedule attached hereto, or on a continuation of such schedule attached to and made a part hereof; provided that neither the failure of the Lender to make any such recordation or endorsement nor any error therein shall affect the obligations of the Borrower hereunder or under the Credit Agreement. This note is one of the Notes referred to in the 364-Day Credit Agreement dated as of December 6, 2001 among the Borrower, the financial institutions party thereto and Citibank, N.A., as Administrative Agent (as the same may be amended, supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT"). Terms defined in the Credit Agreement are used herein with the same meanings. Reference is made to the Credit Agreement for provisions for the prepayment hereof and the acceleration of the maturity hereof. FMC CORPORATION By:______________________________ Name: Title: LOANS AND PAYMENTS OF PRINCIPAL - ---------------------------------------------------------------------------- Amount of Amount of Maturity Notation Date Loan Principal Repaid Date Made By - ---------------------------------------------------------------------------- - ---------------------------------------------------------------------------- - ---------------------------------------------------------------------------- - ---------------------------------------------------------------------------- - ---------------------------------------------------------------------------- - ---------------------------------------------------------------------------- - ---------------------------------------------------------------------------- - ---------------------------------------------------------------------------- - ---------------------------------------------------------------------------- - ---------------------------------------------------------------------------- - ---------------------------------------------------------------------------- - ---------------------------------------------------------------------------- - ---------------------------------------------------------------------------- - ---------------------------------------------------------------------------- - ---------------------------------------------------------------------------- - ---------------------------------------------------------------------------- - ---------------------------------------------------------------------------- - ---------------------------------------------------------------------------- EXHIBIT A-2 FORM OF COMPETITIVE BID LOAN NOTE New York, New York U.S. $ Dated: , 200 ------------------------ ---------- ------ -- FOR VALUE RECEIVED, the undersigned, FMC CORPORATION, a Delaware corporation (the "BORROWER"), HEREBY PROMISES TO PAY to (the "LENDER") --------- for the account of its Competitive Bid Lending Office (as defined in the 364-Day Credit Agreement dated as of December 6, 2001 among the Borrower, the financial institutions party thereto and Citibank, N.A., as Administrative Agent (as amended, supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT"; the terms defined therein being used herein as therein defined)), on , 200 , the principal amount of U.S.$ . - ---------------- - --------------- The Borrower promises to pay interest on the unpaid principal amount hereof from the date hereof until such principal amount is paid in full, at the interest rate and payable on the interest payment date or dates provided below: Interest Rate: % per annum (calculated on the basis of a ----------- year of 360 days for the actual number of days elapsed). Both principal and interest are payable in lawful money of the United States to Citibank, as agent, for the account of the Lender at the office of Citibank, at 399 Park Avenue, New York, New York 10043, in same day funds. This Note is one of the Competitive Bid Loan Notes referred to in, and is entitled to the benefits of, the Credit Agreement. The Credit Agreement, among other things, contains provisions for acceleration of the maturity hereof upon the happening of certain stated events. The Borrower hereby waives presentment, demand, protest and notice of any kind. No failure to exercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall operate as a waiver of such rights. This Note shall be governed by, and construed in accordance with, the laws of the State of New York. FMC CORPORATION By: ----------------------------------- Name: Title: Note (cont'd) LOANS AND PAYMENTS OF PRINCIPAL - --------------------------------------------------------------------------- Amount of Date Amount of Type of Principal Maturity Notation Loan Loan Repaid Date Made By - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- - --------------------------------------------------------------------------- EXHIBIT B FORM OPINION OF COUNSEL FOR THE ADMINISTRATIVE AGENT December 6, 2001 To Citibank, N.A., as Administrative Agent under the Credit Agreement referred to below, and each of the Lenders party to the Credit Agreement referred to below Re: FMC Corporation --------------- Ladies and Gentlemen: We have acted as counsel to Citibank, N.A. ("CITIBANK"), in connection with the preparation, execution and delivery of, and the consummation of the transactions contemplated by, (i) the 364-Day Credit Agreement dated as of December 6, 2001 (the "CREDIT AGREEMENT") among FMC Corporation, a Delaware corporation (the "COMPANY"), the financial institutions party thereto (the "LENDERS"), and Citibank, as Administrative Agent for the Lenders, and (ii) the Notes, if any, issued by the Company pursuant to the Credit Agreement (the "NOTES"), in favor of the applicable Lenders. The Credit Agreement and the Notes are collectively referred to herein as the "FINANCE DOCUMENTS". Capitalized terms used herein and not otherwise defined herein shall have the meanings given them in the Credit Agreement. In so acting, we have examined originals or copies, certified or otherwise identified to our satisfaction, of each of the Finance Documents and such documents and other instruments as we have deemed relevant and necessary as a basis for the opinions hereinafter set forth. In such examination, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. We have also assumed (i) the valid existence and good standing of each party to the Finance Documents, (ii) that each party to the Finance Documents has the requisite power and authority to enter into and perform each of the Finance Documents to which it is party, (iii) the due authorization, execution and delivery of each of the Finance Documents by each of the parties thereto, (iv) that the execution, delivery and performance of the Finance Documents by each party thereto has been duly authorized by all necessary action, and does not (a) contravene the constituent documents of any such party thereto, or (b) conflict with or result in the breach of any document or instrument binding on any such party thereto, and (iii) the enforceability of the Finance Documents against the parties thereto (other than the Company). Based on the foregoing, and subject to the qualifications stated herein, we are of the opinion that each Finance Document constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that (i) rights to indemnification thereunder may be limited by federal or state securities laws or public policy relating thereto and (ii) no opinion is expressed with respect to any provision of the Credit Agreement insofar as it provides that any Person purchasing a participation from any Lender pursuant thereto may exercise set-off or similar rights with respect to such participation or that any Lender thereunder or any other Person may exercise set-off or similar rights other than in accordance with law. The opinions expressed herein are limited to the laws of the State of New York and the federal laws of the United States, and we express no opinion as to the effect on the matters covered by this letter of the laws of any other jurisdiction. The opinions expressed herein are rendered solely for the benefit of you and your permitted assigns and participants in connection with the transactions described herein. Those opinions may not be used or relied upon by any other Person, nor may this letter or any copies thereof be furnished to a third party, filed with a governmental agency, quoted, cited or otherwise referred to without our prior written consent, other than to bank regulatory authorities or permitted assigns or participants of any Lender. Very truly yours, 2 EXHIBIT C FORM OF OPINION OF THE BORROWER'S IN-HOUSE COUNSEL To Citibank, N.A., as Administrative Agent, and each of the Lenders party to the Credit Agreement referred to below Re:FMC Corporation --------------- Ladies and Gentlemen: I am the ____________ of FMC Corporation, a Delaware corporation (the "BORROWER"), in connection with the preparation, execution and delivery of, and the consummation of the transactions contemplated by, the 364-Day Credit Agreement dated as of December 6, 2001 (the "CREDIT AGREEMENT") among the Borrower, the financial institutions party thereto (the "LENDERS") and Citibank, N.A., as administrative agent for the Lenders (the "Administrative Agent"). This opinion is rendered to you pursuant to Section 3.01(b)(ii) of the ------------------- Credit Agreement. Capitalized terms defined in the Credit Agreement, used herein, and not otherwise defined herein, shall have the meanings given them in the Credit Agreement. In so acting, I have examined originals or copies (certified or otherwise identified to our satisfaction) of the following documents: (a) the Credit Agreement; and (b) the Notes issued by the Borrower on the date hereof, if any. The agreements specified in clauses (a) through (b) above are collectively referred to as the "AGREEMENTS". In addition, I have examined such corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Borrower, and have made such inquiries of such officers and representatives, as I have deemed relevant and necessary as a basis for the opinions hereinafter set forth. In such examination, I have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. As to all questions of fact material to these opinions that have not been independently established, I have relied upon certificates or comparable documents of officers and representatives of the Borrower and upon the representations and warranties of the Borrower contained in the Agreements. As to the good standing of the Borrower, I have relied solely on the good standing certificate of the Secretary of State of the State of Delaware. In rendering the opinions expressed below, I have further assumed, without any independent investigation or verification of any kind, that each of the Agreements is the valid and binding obligation of each party thereto other than the Borrower. Based on the foregoing, and subject to the qualifications stated herein, I am of the opinion that: 1. The Borrower is a corporation validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. 2. The Borrower is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction where the failure to be so qualified would not have a Material Adverse Effect. 3. The Borrower has all requisite corporate power and authority to execute, deliver and perform the Agreements to which it is a party. The execution, delivery and performance by the Borrower of the Agreements to which it is a party have been duly authorized by all necessary corporate action on the part of the Borrower. The Borrower has duly executed and delivered the Agreements to which it is a party and such Agreements constitute the legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with their respective terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). 4. The execution, delivery and performance by the Borrower of the Agreements to which it is a party will not conflict with, constitute a default under or violate (i) any of the terms, conditions or provisions of the Certificate of Incorporation or By-laws of the Borrower, (ii) any of the terms, conditions or provisions of any material contractual obligation of the Borrower of which I am aware, (iii) any Pennsylvania, Delaware corporate or federal requirement of law or (iv) any judgment, writ, injunction, decree, order or ruling of any court or governmental authority of which I am aware binding on the Borrower. 5. No consent, approval, waiver, license or authorization or other action by or filing with any Pennsylvania, Delaware corporate or federal governmental authority is required in connection with the execution, delivery or performance by the Borrower of the Agreements to which it is a party. 6. The Borrowings by and other financial accommodations provided to the Borrower under the Agreements and the application of proceeds thereof as provided in the Credit Agreement will not violate Regulation T, U or X of the Federal Reserve Board. 7. The Borrower is not an "investment company" within the meaning of the Investment Company Act of 1940, as amended, or a "holding company" or a "subsidiary company" of a "holding company" within the meaning of the Public Utility Holding Company Act of 1935, as amended. 2 8. To my knowledge, there is no action, suit, proceeding, governmental investigation or arbitration, at law or in equity or before any governmental authority, pending or overtly threatened against the Borrower (i) with respect to any Agreement or challenging any of the Lenders' or the Administrative Agent's rights or remedies thereunder or (ii) which, if adversely determined, could materially adversely affect the ability of the Borrower to perform its obligations under the Agreements. I am admitted to the bar of the Commonwealth of Pennsylvania. I express no opinion as to the laws of any jurisdiction other than (A) the laws of the Commonwealth of Pennsylvania, (B) the Delaware General Corporate Law and (C) the Federal laws of the United States of America. As used herein, "to my knowledge" means the conscious awareness of facts or other information by any officer, attorney or other employee of the Borrower actively involved in the transactions contemplated by the Credit Agreement. The opinions expressed herein are rendered solely for your benefit in connection with the transactions described herein. This opinion may not be used or relied upon by any other person, nor may this letter or any copies thereof be furnished to a third party, filed with a governmental agency, quoted, cited or otherwise referred to without my prior written consent, other than to bank regulatory authorities or permitted assigns of any Lender, and except as required by any governmental authority or pursuant to legal process. Very truly yours, 3 EXHIBIT D FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT AGREEMENT dated as of , 20 among [ASSIGNOR] (the "ASSIGNOR"), ---------- ---- [ASSIGNEE] (the "ASSIGNEE"), FMC CORPORATION (the "BORROWER") and CITIBANK, N.A., as administrative agent under the Credit Agreement referred to below (the "ADMINISTRATIVE AGENT"). W I T N E S S E T H WHEREAS, this Assignment and Assumption Agreement (the "AGREEMENT") relates to the 364-Day Credit Agreement dated as of December 6, 2001 among the Borrower, the Assignor and the other financial institutions party thereto from time to time, and the Administrative Agent (as amended, supplemented or otherwise modified, the "CREDIT AGREEMENT"); WHEREAS, as provided under the Credit Agreement, the Assignor has a Commitment to make Loans in an aggregate principal amount at any time outstanding not to exceed $300,000,000; WHEREAS, Loans made by the Assignor under the Credit Agreement in the aggregate principal amount of $ are outstanding at the date hereof; ----------- and WHEREAS, the Assignor proposes to assign to the Assignee all of the rights and obligations of the Assignor under the Credit Agreement in respect of the portion of its Commitment (other than in respect of Competitive Bid Loans and Competitive Bid Loan Notes) thereunder in an amount equal to $ (the ----------- "ASSIGNED AMOUNT"), together with a corresponding portion of its outstanding Loans that are not Competitive Bid Loans (if any) and the Assignee proposes to accept assignment of such rights and assume the corresponding obligations from the Assignor on such terms; NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, the parties hereto agree as follows: SECTION 1. Definitions. All capitalized terms not otherwise defined ----------- herein shall have the respective meanings set forth in the Credit Agreement. SECTION 2. Assignment. The Assignor hereby assigns and sells to the ---------- Assignee all of the rights and obligations of the Assignor under the Credit Agreement to the extent they relate to the Assigned Amount (other than in respect of Competitive Bid Loans and Competitive Bid Loan Notes), and the Assignee hereby accepts such assignment from the Assignor and assumes all of the obligations of the Assignor under the Credit Agreement to the extent they relate to the Assigned Amount (other than in respect of Competitive Bid Loans and Competitive Bid Loan Notes), including the purchase from the Assignor of the corresponding portion of the principal amount of the Loans that are not Competitive Bid Loans (if any) made by the Assignor outstanding at the date hereof. Upon the execution and delivery hereof by the Assignor, the Assignee, the Borrower and the Administrative Agent and the payment of the amounts specified in Section 3 hereof required to be paid on the date hereof (a) the Assignee shall, as of the date hereof, succeed to the rights and be obligated to perform the obligations of a Lender under the Credit Agreement with a Commitment in an amount equal to the Assigned Amount, and (b) the Commitment of the Assignor shall, as of the date hereof, be reduced by a like amount and the Assignor shall be released from its obligations under the Credit Agreement to the extent such obligations have been assumed by the Assignee. The assignment provided for herein shall be without recourse to the Assignor. SECTION 3. Payments. As consideration for the assignment and sale --------- contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the date hereof in Federal funds an amount equal to $ * . It is understood ----------- that facility fees accrued to the date hereof are for the account of the Assignor and such fees accruing from and including the date hereof with respect to the Assigned Amount are for the account of the Assignee. Each of the Assignor and the Assignee hereby agrees that if it receives any amount under the Credit Agreement which is for the account of the other, it shall receive the same for the account of such other party to the extent of such other party's interest therein and shall promptly pay the same to such other party. SECTION 4. Consent of the Borrower and the Administrative Agent. This ---------------------------------------------------- Agreement is conditioned upon the consent of the Borrower and the Administrative Agent required by Section 9.07(c) of the Credit Agreement. The execution of this Agreement by the Borrower and the Administrative Agent is evidence of such consent. Pursuant to said Section 9.07(c), the Borrower agrees to execute and deliver a Note, if requested by the Assignee, payable to the order of the Assignee to evidence the assignment and assumption provided for herein. SECTION 5. Non-Reliance on Assignor. The Assignor makes no representation ------------------------ or warranty in connection with, and shall have no responsibility with respect to, the solvency, financial condition, or statements of the Borrower, or the validity and enforceability of the obligations of the Borrower in respect of the Credit Agreement or any Note. The Assignee acknowledges that it has, independently and without reliance on the Assignor, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and will continue to be responsible for making its own independent appraisal of the business, affairs and financial condition of the Borrower. SECTION 6. Governing Law. This Agreement shall be governed by and construed ------------- in accordance with the laws of the State of New York. SECTION 7. Counterparts. This Agreement may be signed in any number of ------------ counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. - ----------- *Amount should combine principal together with accrued interest and breakage compensation, if any, to be paid by the Assignee, net of any portion of any upfront fee to be paid by the Assignor to the Assignee. It may be preferable in an appropriate case to specify these amounts generically or by formula rather than as a fixed sum. 2 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered by their duly authorized officers as of the date first above written. [ASSIGNOR] By:_________________________ Name: Title: [ASSIGNEE] By:_________________________ Name: Title: FMC CORPORATION By:_________________________ Name: Title: CITIBANK, N.A., as Administrative Agent By:_________________________ Name: Title: 3 EXHIBIT E FORM OF EXTENSION AGREEMENT Citibank, N.A., as Administrative Agent Two Penns Way, Suite 200 New Castle, Delaware, 19720 Attention: ----------- Ladies and Gentlemen: The undersigned hereby agrees to extend, effective , 200 its --------------- - Commitment and Commitment Termination Date under the 364-Day Credit Agreement dated as of December 6, 2001 among FMC Corporation, the financial institutions parties thereto (the "Lenders") and Citibank, N.A., as Administrative Agent for the Lenders (as amended, supplemented or otherwise modified from time to time, the "364-Day Credit Agreement") for 364 days to [date to which the Commitment Termination Date is extended] pursuant to Section 2.17 of the 364-Day Credit Agreement. Terms defined in the 364-Day Credit Agreement are used herein as therein defined. This Extension Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Extension Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. [NAME OF LENDER] By: --------------------------------------- Name: Title: Agreed and Accepted: FMC CORPORATION By: --------------------------------- Name: Title: CITIBANK, N.A., as Administrative Agent By: --------------------------------- Name: Title: CONFORMED COPY - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 364-DAY CREDIT AGREEMENT DATED AS OF DECEMBER 6, 2001 AMONG FMC CORPORATION, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT AND BANK OF AMERICA, N.A., AS SYNDICATION AGENT AND ABN AMRO BANK N.V. AND FIRST UNION NATIONAL BANK, AS CO-DOCUMENTATION AGENTS SALOMON SMITH BARNEY INC. AND BANC OF AMERICA SECURITIES LLC, AS CO-LEAD ARRANGERS - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- WEIL, GOTSHAL & MANGES LLP 767 FIFTH AVENUE NEW YORK, NEW YORK 10153-0119 TABLE OF CONTENTS PAGE Article I DEFINITION 1 SECTION 1.01 Definitions 1 SECTION 1.02 Accounting Terms and Determinations 11 SECTION 1.03 Types of Borrowings 11 SECTION 1.04 Pricing Levels 11 Article II THE CREDITS 12 SECTION 2.01 Commitments to Lend 12 SECTION 2.02 Notice of Borrowings 12 SECTION 2.03 Competitive Bid Loans 13 SECTION 2.04 Notice to Lenders; Funding of Loans 16 SECTION 2.05 Notes 17 SECTION 2.06 Maturity of Loans 17 SECTION 2.07 Interest Rates 17 SECTION 2.08 Fees 18 SECTION 2.09 Mandatory Termination of Commitments 19 SECTION 2.10 Optional Reduction of Commitments 19 SECTION 2.11 Optional Prepayments 19 SECTION 2.12 Payments 19 SECTION 2.13 Funding Losses 20 SECTION 2.14 Computation of Interest and Fees 20 SECTION 2.15 Regulation D Compensation 20 SECTION 2.16 Withholding Tax Exemption 21 SECTION 2.17 Extension of Commitments 21 SECTION 2.18 Increased Commitments; Additional Lenders 23 Article III CONDITIONS TO EFFECTIVENESS AND BORROWINGS 23 SECTION 3.01 Conditions Precedent to Effectiveness 23 SECTION 3.02 Conditions Precedent to Each Borrowing and Extension of Commitment 24 Article IV REPRESENTATIONS AND WARRANTIES 25 SECTION 4.01 Corporate, Limited Liability Company or Partnership Existence and Power 25 SECTION 4.02 Corporate and Governmental Authorization; No Contravention 25 SECTION 4.03 Binding Effect 25 SECTION 4.04 Financial Information 25 i TABLE OF CONTENTS (CONTINUED) SECTION 4.05 Litigation 26 SECTION 4.06 Compliance with ERISA 26 SECTION 4.07 Environmental Matters 26 SECTION 4.08 Taxes 26 SECTION 4.09 Full Disclosure 27 SECTION 4.10 Compliance with Laws 27 SECTION 4.11 Not an Investment Company 27 SECTION 4.12 Margin Regulations 27 SECTION 4.13 Pari Passu Obligations 27 SECTION 4.14 Material Subsidiaries 27 Article V COVENANTS 27 SECTION 5.01 Information 27 SECTION 5.02 Payment of Obligations 29 SECTION 5.03 Maintenance of Property; Insurance 29 SECTION 5.04 Inspection of Property, Books and Records 30 SECTION 5.05 Maintenance of Existence, Rights, Etc. 30 SECTION 5.06 Liens 30 SECTION 5.07 Consolidations, Mergers and Sales of Assets 31 SECTION 5.08 Change in Nature of Business 31 SECTION 5.09 Use of Proceeds 31 SECTION 5.10 Compliance with Laws 31 SECTION 5.11 Financial Covenants 32 SECTION 5.12 Hedging Contracts 32 Article VI DEFAULTS 32 SECTION 6.01 Defaults 32 SECTION 6.02 Notice of Default 34 Article VII THE ADMINISTRATIVE AGENT 34 SECTION 7.01 Appointment and Authorization 34 SECTION 7.02 Administrative Agent and Affiliates 35 SECTION 7.03 Action by Agent 35 SECTION 7.04 Consultation with Experts 35 SECTION 7.05 Liability of Administrative Agent 35 ii TABLE OF CONTENTS (CONTINUED) SECTION 7.06 Indemnification 35 SECTION 7.07 Credit Decision 35 SECTION 7.08 Administrative Agent's Fees 35 SECTION 7.09 Successor Administrative Agent 36 SECTION 7.10 Other Agents 36 Article VIII CHANGE IN CIRCUMSTANCES 36 SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair 36 SECTION 8.02 Illegality 36 SECTION 8.03 Increased Cost and Reduced Return 37 SECTION 8.04 Base Rate Loans Substituted for Affected Euro-Dollar Loans 39 Article IX MISCELLANEOUS 39 SECTION 9.01 Notices 39 SECTION 9.02 No Waivers 39 SECTION 9.03 Expenses; Documentary Taxes; Indemnification for Litigation 39 SECTION 9.04 Amendments and Waivers 40 SECTION 9.05 Sharing of Set-Offs 40 SECTION 9.06 GOVERNING LAW; SUBMISSION TO JURISDICTION 40 SECTION 9.07 Successors and Assigns 41 SECTION 9.08 Collateral 42 SECTION 9.09 Counterparts; Integration 42 SECTION 9.10 WAIVER OF JURY TRIAL 42 SECTION 9.11 Confidentiality 42 iii TABLE OF CONTENTS (CONTINUED) SCHEDULES Schedule I Lenders and Commitments Schedule 1.01(a) Certain Foreign Subsidiaries Schedule 1.01(b) Material Subsidiaries EXHIBITS Exhibit A-1.Form of Note Exhibit A-2.Form of Competitive Bid Loan Note Exhibit B Form of Opinion of Weil, Gotshal & Manges LLP, counsel for the Administrative Agent Exhibit C Form of Opinion of In-House Counsel of the Borrower Exhibit D Form of Assignment and Assumption Agreement Exhibit E Form of Extension Agreement iv EX-99 5 fmc-ex99_52724.txt EXHIBIT 99.1 -- TAX-FREE DIVIDEND EXHIBIT 99.1 FMC CORPORATION BOARD OF DIRECTORS DECLARES TAX-FREE DIVIDEND OF FMC TECHNOLOGIES' SHARES PHILADELPHIA AND CHICAGO, NOVEMBER 29, 2001 -- FMC Corporation today announced that its Board of Directors has declared a special stock dividend of all of FMC Corporation's shares of FMC Technologies, Inc. The dividend will be distributed at 5:00 p.m. Central Time on December 31, 2001, to FMC Corporation shareholders of record as of 5:00 p.m. Central Time on December 12, 2001, which is the record date. FMC Corporation currently owns 53.95 million shares, or approximately 83 percent of FMC Technologies. The other 17 percent of the outstanding FMC Technologies' shares were sold in an initial public offering in June 2001. FMC Corporation also announced that the Internal Revenue Service has ruled that the planned distribution of FMC Technologies' shares qualifies as tax-free for FMC Corporation shareholders. According to FMC Corporation President and Chief Executive Officer William G. Walter: "This distribution is the final step in the reorganization begun in October 2000 to split FMC Corporation into two independent, publicly-traded companies -- a machinery company and a chemical company. Both companies will continue the FMC tradition of providing quality products, innovative solutions and outstanding service to their customers. The distribution will enable the companies to strengthen their own identities and realize the full growth potential in their respective markets, while allowing shareholders to realize the value inherent in both." FMC Corporation had said that it expects FMC Corporation shareholders to receive approximately 1.7 shares of FMC Technologies for each FMC Corporation share, based on approximately 31,000,000 FMC Corporation shares currently outstanding. The final distribution ratio will be determined based on the number of FMC Corporation shares outstanding on the record date. FMC Corporation shareholders will receive whole shares of FMC Technologies and cash payments for fractional shares. Cash received in lieu of fractional shares will be taxable. The distribution remains subject to the conditions set forth in the Separation and Distribution Agreement previously entered into between FMC Corporation and FMC Technologies. FMC Corporation will mail an information statement to its stockholders promptly after the record date. The information statement will include the final distribution ratio and information regarding how to calculate share tax basis. FMC Corporation shareholders are encouraged to read this information statement carefully. FMC Corporation is a global, diversified chemical company serving agricultural, industrial and consumer markets for more than a century with innovative solutions, applications and products. The company employs over 6,000 people throughout the world. FMC Corporation divides its businesses into three segments: Agricultural Products, Specialty Chemicals and Industrial Chemicals. FMC Technologies, Inc. is a global leader providing mission-critical technology solutions for the energy, food processing and air transportation industries. The company designs, manufactures and services technologically sophisticated systems and products for its customers through the FMC Energy Systems (comprising Energy Production and Energy Processing), FMC FoodTech and FMC Airport Systems businesses. FMC Technologies employs approximately 9,000 people at 31 manufacturing facilities in 14 countries. Safe Harbor Statement under the Private Securities Act of 1995: Statements in this news release that are forward-looking statements are subject to various risks and uncertainties concerning specific factors described in FMC Corporation's 2000 Form 10-K and other SEC filings. Such information contained herein represents management's best judgment as of the date hereof based on information currently available. FMC Corporation does not intend to update this information and disclaims any legal obligation to the contrary. Historical information is not necessarily indicative of future performance. - -------------------------------------------------------------------------------- EX-99 6 fmcex99-2_52724.txt EXHIBIT 99.2 - INFORMATION STATEMENT EXHIBIT 99.2 INFORMATION STATEMENT ----------------- Spin-off of FMC Technologies, Inc. Through the Distribution by FMC Corporation of 53,950,000 Shares of FMC Technologies, Inc. Common Stock to FMC Corporation Stockholders We are sending you this Information Statement because we are spinning off our FMC Technologies, Inc. subsidiary to the holders of our common stock. We are effecting this spin-off by distributing 1.71972131 shares of FMC Technologies, Inc. common stock as a dividend on each outstanding share of FMC Corporation common stock, amounting to 53,950,000 shares of FMC Technologies, Inc. common stock in total. The dividend will be payable on December 31, 2001 to holders of record of shares of FMC Corporation common stock as of 5:00 p.m. Central time, on December 12, 2001. As described below, if you sell shares of FMC Corporation common stock in the "regular way" market between December 12, 2001 and 5:00 p.m. Central time, on December 31, 2001, you will be selling your right to receive the FMC Technologies, Inc. share dividend. FMC Technologies, Inc. designs, manufactures and services technologically sophisticated systems and products for its customers through its Energy Production Systems, Energy Processing Systems, FoodTech and Airport Systems segments. Last year, the FMC Corporation board of directors determined that it would be in the best interests of FMC Corporation and its stockholders to separate the company into two independent companies consisting of FMC Corporation and FMC Technologies, Inc. In June 2001, FMC Technologies, Inc. completed an initial public offering of 11,050,000 shares of its common stock. Following this spin-off, we will no longer own any shares of FMC Technologies, Inc., and FMC Technologies, Inc. will be a fully independent, publicly traded company. No vote of FMC Corporation stockholders is required in connection with the FMC Technologies, Inc. spin-off. Therefore, you are not required to take any action. We are sending you this Information Statement, which contains additional information about the terms of the spin-off, FMC Technologies, Inc. and FMC Technologies, Inc. common stock, for your information only. If you would like more information, please call Eric Norris at 215-299-6538 or check our website at http://www.fmc.com. Neither the Securities and Exchange Commission nor any state securities regulators have approved the FMC Technologies, Inc. common stock to be issued to you pursuant to this spin-off or determined if this Information Statement is accurate or adequate. Any representation to the contrary is a criminal offense. The date of this Information Statement is December 14, 2001. INFORMATION ABOUT THE FMC TECHNOLOGIES, INC. SPIN-OFF The Spin-off On November 29, 2001, the FMC Corporation board of directors approved the spin-off of FMC Technologies, Inc. to holders of FMC Corporation's common stock. To effect this spin-off, the FMC Corporation board declared a dividend on FMC Corporation common stock consisting of all of the 53,950,000 shares of FMC Technologies, Inc. common stock owned by FMC Corporation. These shares represent approximately 83.0% of the outstanding FMC Technologies, Inc. common stock. The dividend will be paid at 5:00 p.m. Central time, on December 31, 2001, in the amount of 1.71972131 shares of FMC Technologies, Inc. common stock for each share outstanding of FMC Corporation common stock as described below. Please note that you will not be required to pay any cash or other consideration for the shares of FMC Technologies, Inc. common stock distributed to you or to surrender or exchange your shares of FMC Corporation common stock to receive the dividend of FMC Technologies, Inc. common stock. The Number of Shares You Will Receive For each share of FMC Corporation common stock that you owned at 5:00 p.m. Central time, on December 12, 2001, the record date, you will receive that number of shares equal to the quotient obtained by dividing the total number of shares of FMC Technologies, Inc. common stock to be distributed in the spin-off by the total number of shares of FMC Corporation common stock outstanding at 5:00 p.m. Central time, on the record date. This calculation results in the distribution of 1.71972131 shares of FMC Technologies, Inc. common stock for each share of FMC Corporation common stock, and is illustrated as follows: Total number of shares of FMC Technologies, Inc. to be distributed in the spin-off 53,950,000 - ------------------------------------------------ ---------- = 1.71972131 Total number of shares of FMC Corporation 31,371,362 common stock outstanding as of 5:00 p.m., Central time, on the record date It is important to note that if you sell your shares of FMC Corporation common stock between the record date and the distribution date in the "regular way" market, you will be selling your right to receive the FMC Technologies, Inc. share dividend. Please see "Trading Between the Record Date and Distribution Date" below. Trading Between the Record Date and Distribution Date Between the record date and the distribution date, there will be two markets in FMC Corporation common stock: a "regular way" market and an "ex-dividend" market. Shares that trade on the regular way market will trade with an entitlement to shares of FMC Technologies, Inc. common stock distributed pursuant to the spin-off. Shares that trade on the ex-dividend market will trade without an entitlement to shares of FMC Technologies, Inc. common stock distributed pursuant to the spin-off. Therefore, if you owned shares of FMC Corporation common stock at 5:00 p.m. Central time on the record date, and sell those shares on the regular way market prior to 5:00 p.m. Central time, on December 31, 2001, the distribution date, you will also be trading the shares of FMC Technologies, Inc. common stock that would have been distributed to you pursuant to the spin-off. If you sell those shares of FMC Corporation common stock on the ex-dividend market prior to 5:00 p.m. Central time, on the distribution date, you will still receive the shares of FMC Technologies, Inc. common stock that were to be distributed to you pursuant to your ownership of the shares of FMC Corporation common stock. Furthermore, between the record date and distribution date there will be two markets in FMC Technologies, Inc. common stock, a "regular way" market and a "when-issued trading" market. The regular way market will be the same market for shares of FMC Technologies, Inc. common stock that currently exists. The when-issued 2 trading market will be a market for shares of FMC Technologies, Inc. common stock that will be distributed to FMC Corporation stockholders on the distribution date. If you owned shares of FMC Corporation common stock at 5:00 p.m. Central time on the record date, then you are entitled to shares of FMC Technologies, Inc. common stock distributed pursuant to the spin-off. You may trade this entitlement to shares of FMC Technologies, Inc. common stock, without the shares of FMC Corporation common stock you own, on the when-issued trading market. When and How You Will Receive the Dividend We will pay the dividend on December 31, 2001 by releasing our shares of FMC Technologies, Inc. common stock to be distributed in the spin-off to Computershare Investor Services LLC, our transfer agent. As of 5:00 p.m., Central time, on December 31, 2001 the transfer agent will cause the shares of FMC Technologies, Inc. common stock to which you are entitled to be registered in your name or in the "street name" of your brokerage firm. Many FMC Corporation stockholders have their FMC Corporation shares held in an account with a stock brokerage firm. In such cases, the brokerage firm is the registered holder or "street name" and the shares of FMC Technologies, Inc. common stock will be credited to the account of your brokerage firm. Your broker will in turn electronically credit your account for the FMC Technologies, Inc. shares you are entitled to receive. This will take 3 to 8 business days after December 31, 2001. If you have any questions in this regard, we encourage you to contact your broker on the mechanics of having the FMC Technologies, Inc. shares posted to your account. If you physically hold the FMC Corporation stock certificates and are the registered holder, the shares of FMC Technologies, Inc. common stock distributed to you will be registered in your name and you will become the record holder of that number of shares of FMC Technologies, Inc. common stock. FMC Technologies, Inc. common stock will be issued in book-entry form through the Direct Registration System. FMC Technologies, Inc.'s transfer agent and registrar, Computershare Investor Services LLC, will hold your book-entry shares. If you wish to receive a physical certificate after the distribution date, you should contact FMC Technologies, Inc.'s transfer agent (see page 8 for telephone numbers and address). The transfer agent will not deliver any fractional shares of FMC Technologies, Inc. common stock in connection with the spin-off. Instead, the transfer agent will aggregate all fractional shares and sell them on behalf of those holders who otherwise would be entitled to receive a fractional share. Such holders will then receive a cash payment in an amount equal to their pro rata share of the total net proceeds of that sale. Such cash payment will be made to the holders in the same account in which the underlying shares are held. Following the distribution date, a direct registration transaction advice will be sent to you showing your ownership interest in FMC Technologies, Inc. common stock. If you physically hold FMC Corporation stock certificates and are the registered holder, you will receive a check, in a subsequent mailing, representing your pro rata share of the net proceeds from the sale of the fractional shares. We currently estimate that it will take up to 14 days from the distribution date to complete the mailings of direct registration transaction advices and checks for any fractional shares. U.S. Federal Income Tax Consequences The following is a summary of the material anticipated U.S. federal income tax consequences of the spin-off to FMC Corporation stockholders who hold FMC Corporation common stock as a capital asset. The summary is based on the Internal Revenue Code, Treasury regulations issued under the Internal Revenue Code, and administrative rulings and court decisions in effect as of the date of this information statement, all of which are subject to change at any time, possibly with retroactive effect. This summary is not a complete description of all of the tax consequences of the transaction and, in particular, may not address U.S. federal income tax considerations applicable to FMC Corporation stockholders subject to special treatment under U.S. federal income tax law, including, for example, foreign persons, financial institutions, dealers in securities, traders in securities who elect to apply a mark-to-market method of accounting, insurance companies, tax-exempt entities, holders who acquired their shares of FMC Corporation common stock pursuant to the exercise of an employee 3 stock option or right or otherwise as compensation, and holders who hold FMC Corporation common stock as part of a "hedge," "straddle," "constructive sale" or "conversion transaction." In addition, no information is provided in this document with respect to the tax consequences of the spin-off under applicable foreign, state or local laws. Tax-Free Status of the Spin-off. We have received a private letter ruling from the U.S. Internal Revenue Service stating that our distribution of FMC Technologies, Inc. common stock to our common stock holders in connection with the spin-off will be tax-free to us and to the holders of our common stock for U.S. federal income tax purposes. This means that for U.S. federal income tax purposes: - FMC Corporation common stockholders will not recognize a gain or loss by reason of the receipt of whole shares of FMC Technologies, Inc. common stock as a result of the spin-off; and - FMC Corporation will not recognize gain or loss as a result of the spin-off. Although private letter rulings are generally binding on the IRS, we will not be able to rely on the ruling if any of the factual representations or assumptions we made to obtain the ruling are, or become, incorrect or untrue in any material respect. We are not aware of any facts or circumstances that would cause any of these representations or assumptions to be incorrect or untrue in any material respect. Nevertheless, if the IRS subsequently held our spin-off to be taxable, the above consequences would not apply and both FMC Corporation and our common stock holders could be subject to U.S. federal income tax. Subsequent Sale of Stock. If you sell your shares of FMC Technologies, Inc. common stock or FMC Corporation common stock after the spin-off, you will recognize gain or loss on such sale based on the difference between the proceeds you receive from the sale and the tax basis allocated to the shares you sold as described below under "Allocation of Tax Basis." This gain or loss will be a capital gain or loss, assuming that you held such shares as a capital asset, and will be a long-term or short-term gain or loss based on your holding period for such shares as described below under "Holding Period." Allocation of Tax Basis. Your tax basis in the shares of FMC Corporation common stock you hold immediately prior to the spin-off will be allocated between the FMC Technologies, Inc. common stock and the FMC Corporation common stock you hold immediately after the spin-off in proportion to the their relative fair market values. Following the spin-off, your aggregate tax basis in your shares of FMC Corporation common stock and FMC Technologies, Inc. common stock, including any fractional shares sold for cash as described above, will be the same as your tax basis in your shares of FMC Corporation common stock immediately prior to the spin-off. The tax basis of a share of FMC Corporation common stock after the distribution will equal the tax basis of the FMC Corporation common stock before the distribution multiplied by a fraction the numerator of which is the fair market value of a share of FMC Corporation common stock immediately after the distribution and the denominator of which is the sum of the fair market value of the FMC Corporation common share immediately after the distribution and the fair market value of the FMC Technologies, Inc. common stock received in the distribution with respect to such share of FMC Corporation common stock. The tax basis of a share of FMC Technologies, Inc. common stock after the distribution is equal to the tax basis of the FMC Corporation common stock before the distribution multiplied by a fraction the numerator of which is the fair market value of a share of FMC Technologies, Inc. common stock immediately after the distribution and the denominator of which is the sum of the fair market value of the FMC Corporation common share immediately after the distribution and the fair market value of the FMC Technologies, Inc. common stock received in the distribution with respect to such share of FMC Corporation common stock. Please note that this calculation must be repeated for each block of shares that you own. Holding Period. The holding period of the shares of FMC Technologies, Inc. common stock that you receive as a result of the spin-off will include, and be the same as, the holding period for your shares of FMC Corporation common stock with respect to which your distribution of FMC Technologies, Inc. common stock 4 was made, provided that your shares of FMC Corporation common stock are held as a capital asset on the dividend payment date. Treatment of Fractional Shares. If you receive cash in lieu of a fractional share of FMC Technologies, Inc. common stock as part of the spin-off, such cash may be treated for U.S. federal income tax purposes as paid in exchange for such fractional share of stock. Depending upon the type of investment account in which you receive such a cash payment, you may realize a capital gain or loss, provided that the fractional share is considered to be held as a capital asset, measured by the difference between the cash you receive for such fractional share and your tax basis in that fractional share as described above. This capital gain or loss will be treated as a long-term or short-term gain or loss based on your holding period for the FMC Corporation common stock on which you received your distribution of FMC Technologies, Inc. common stock. The tax treatment will vary to the extent the cash payment is received in a tax-qualified investment account. You should consult your own tax advisors as to the particular tax consequences to your tax-qualified investment account. Example: To aid you in calculating the allocation of your tax basis, we have provided an example below, based on the fictitious Companies A and B. In the following example, "Company A" is the name of the parent company spinning off its subsidiary, "Company B." Pursuant to Company A's distribution of the stock it holds of Company B, each holder of Company A common stock is entitled to receive 1.5 shares of Company B common stock for every share of Company A common stock held by such holder. On July 1, 2000, Stockholder purchased 125 shares of Company A common stock at $20 per share for a total of $2,500 in a standard stock brokerage account. Stockholder's tax basis in her shares of Company A common stock is $2,500. Immediately after the spin-off, the fair market value of Company A common stock was $15 per share and the fair market value of Company B common stock was $30 per share. After the distribution, Stockholder was entitled to 187.5 shares of Company B common stock. Stockholder received 187 shares of Company B common stock and $15 in cash, one-half of the value of one share of Company B common stock. The tax basis allocable to a share of Company A common stock after the distribution is computed as follows: 20 X (15 / (15 + (1.5 x 30))) = $5.00 per share, or 20 X (15 / (15 + 45)) = $5.00 per share. The tax basis allocable to a share of Company B common stock after the distribution date is computed as follows: 20 X (30 / (15 + (1.5 x 30))) = $10.00 per share, or 20 X (30 / (15 + 45)) = $10.00 per share. Stockholder will be subject to long-term capital gains tax on $10.00, which is the difference between her basis in one half of a share of Company B common stock, or $5.00, and the $15 she received as payment for her half share of Company B common stock. We can test to prove that all of the original basis has been allocated and accounted for, as follows: 125 shares of Company A stock X $5.00 per share equals $625.00, 187 shares of Company B stock X $10.00 per share equals $1,870, and 1/2 share of Company B stock treated as sold X $10.00 per share equals $5.00. The sum of these three is $2,500. Please note that these calculations will need to be repeated for each block of shares in which a shareholder has a different basis. State, Local and Foreign Tax Consequences. The foregoing description addresses only U.S. federal income tax consequences. You should consult your own tax advisor regarding the state, local and foreign tax consequences of your receipt of shares of FMC Technologies, Inc. common stock and any payment for fractional shares. 5 Tax Return Statement. U.S. Treasury regulations require you to attach a detailed statement setting forth certain information regarding the distribution to your U.S. federal income tax return for the year in which the spin-off occurs. Within a reasonable time after completion of the spin-off, we will provide you with the information necessary to comply with that requirement. You should retain this statement so it can be completed and attached to your tax return. The summary of U.S. federal income tax consequences set forth above is for general information purposes only and may not be applicable to stockholders who are not citizens or residents of the United States or who are otherwise subject to special treatment under the Internal Revenue Code. All stockholders should consult their own tax advisors as to the particular tax consequences to them of the spin-off, including the state, local and (if applicable) foreign tax consequences. INFORMATION ABOUT FMC TECHNOLOGIES, INC. Overview of FMC Technologies, Inc.'s Business FMC Technologies, Inc. designs, manufactures and services technologically sophisticated systems and products for its customers through its Energy Production Systems, Energy Processing Systems, FoodTech and Airport Systems segments. Energy Production Systems is a leading supplier of systems and services used in the offshore, particularly deepwater, exploration and production of crude oil and natural gas. Energy Processing Systems is a leading provider of specialized systems and products to customers involved in the production, transportation and processing of crude oil, natural gas and refined petroleum-based products. FoodTech is a leading supplier of technologically sophisticated food handling and processing systems and products to industrial food processing companies. Airport Systems provides technologically advanced equipment and services for airlines, airports and air freight companies. Energy Production Systems is a global leader in the provision of subsea drilling and production systems, including subsea tree systems that control the flow of crude oil and natural gas from the well, systems for floating production solutions and surface drilling and production systems, to oil and gas companies involved in the exploration and production of crude oil and natural gas. Many of the systems that FMC Technologies, Inc. provides are for use in the exploration, development and production of crude oil and natural gas reserves located in technologically challenging deepwater environments, which involve water depths of greater than 1,000 feet. In subsea systems, FMC Technologies, Inc.'s largest business area: - FMC Technologies, Inc. is a major supplier of subsea tree systems and associated services to five of the eight companies that are projected to be the most active developers of subsea oil and gas over the next five years based on projected subsea tree installations. - Since 1995, FMC Technologies, Inc. has installed, or been awarded contracts for the installation of, more subsea tree systems than any other manufacturer. - FMC Technologies, Inc. set six of the ten water depth records established since 1987 for subsea tree installations. Energy Processing Systems designs, manufactures and supplies technologically advanced high pressure valves and fittings for oilfield services customers as well as liquid and gas measurement and transportation equipment and systems to customers involved in the transportation and processing of crude oil, natural gas and refined petroleum-based products. FMC Technologies, Inc. is a leading supplier of flowline products. These high-pressure fittings, valves and pumps are used by other oilfield services companies in the high-pressure pumping of corrosive fracturing fluid into a well during the well servicing process. FMC Technologies, Inc. is also a leading supplier of measurement systems and services for the precise, cost-effective measurement of crude oil and natural gas. In addition, FMC Technologies, Inc. is a leading supplier of marine and land-based fluid 6 loading and transfer systems, including liquefied natural gas loading arms. Finally, FMC Technologies, Inc. also develops and manufactures turnkey systems used primarily for the blending and transfer of lubricants, petroleum, chemicals and paints. The combination of Energy Production Systems and Energy Processing Systems provides FMC Technologies, Inc. the ability to offer its customers a broad spectrum of systems, equipment and services. FoodTech is a leading supplier of technologically sophisticated handling and processing systems and services used for, among other things, convenience food preparation and citrus juice extraction for industrial food processors. FoodTech's products include citrus juice extraction equipment, commercial freezing systems and sterilization systems. FMC Technologies, Inc. believes that its equipment processes approximately 75% of the global production of orange juice, freezes approximately 50% of commercially frozen foods on a global basis and sterilizes a significant portion of the world's canned foods. Airport Systems designs, manufactures and services technologically advanced ground support equipment and systems for airlines, airports and air freight companies. FMC Technologies, Inc. invented airline passenger boarding bridges and remains the leading supplier of this product. FMC Technologies, Inc. believes that it also has the world's largest installed base of air cargo loaders. FMC Technologies, Inc. has advised FMC Corporation that it intends to pursue a growth strategy based on maintaining leading positions in its markets by providing differentiated technological solutions for its customers and capitalizing on its extensive customer relationships. Background of the Separation of FMC Technologies, Inc. from FMC Corporation On October 31, 2000, FMC Corporation announced its plan to create an independent, publicly-traded company comprised of FMC Corporation's Energy Systems and Food & Transportation Systems businesses. FMC Technologies, Inc. was incorporated on November 13, 2000 as a wholly owned subsidiary of FMC Corporation. On February 16, 2001, FMC Corporation's board of directors approved the separation of FMC Technologies, Inc. from FMC Corporation and the initial public offering of shares of FMC Technologies, Inc. common stock. The separation of FMC Technologies, Inc. from FMC Corporation was substantially completed on May 31, 2001. After the completion of FMC Technologies, Inc.'s initial public offering in June 2001, FMC Corporation owned approximately 83.0% of the shares of FMC Technologies, Inc. common stock. In the final step of the separation, FMC Corporation plans to distribute all of the shares of FMC Technologies, Inc. common stock it owns to the holders of FMC Corporation's common stock on a pro rata basis. On November 29, 2001, the FMC Corporation board of directors approved the spin-off of 53,950,000 shares of FMC Technologies, Inc. common stock that FMC Corporation owned to holders of FMC Corporation common stock by means of a dividend as described in this Information Statement. After the spin-off, FMC Corporation will not own any shares of FMC Technologies, Inc. common stock, and FMC Technologies, Inc. will be a fully independent, publicly traded company. INFORMATION ABOUT FMC TECHNOLOGIES, INC. COMMON STOCK FMC Technologies, Inc. Common Stock Under FMC Technologies, Inc.'s Amended and Restated Certificate of Incorporation, the authorized capital stock of the company is 195,000,000 shares of common stock, $0.01 par value, and 12,000,000 shares of undesignated preferred stock, $0.01 par value. As of December 12, 2001, there were 65,094,365 shares of FMC Technologies, Inc. common stock outstanding and no shares of FMC Technologies, Inc. preferred stock outstanding. 7 FMC Technologies, Inc.'s board of directors adopted a rights agreement in June 2001. Pursuant to the rights agreement, one preferred share purchase right was issued for each outstanding share of FMC Technologies, Inc. common stock. The rights are subject to the terms of the rights agreement. The rights initially trade with, and are inseparable from, FMC Technologies, Inc. common stock. FMC Technologies, Inc.'s board of directors adopted the rights agreement to protect FMC Technologies, Inc. stockholders from coercive or otherwise unfair takeover tactics. In general terms, the rights agreement works by imposing a significant penalty upon any person or group that acquires 15% or more of FMC Technologies, Inc. common stock outstanding without the approval of FMC Technologies, Inc.'s board of directors. Market for FMC Technologies, Inc. Common Stock FMC Technologies, Inc. common stock trades on the New York Stock Exchange under the symbol "FTI." A public market was established for FMC Technologies, Inc. common stock as a result of FMC Technologies, Inc.'s initial public offering in June 2001. The following table sets forth, for the periods indicated, the high and low sale prices of FMC Technologies, Inc. common stock as reported on the NYSE. We urge you to obtain current quotations for the FMC Technologies, Inc. common stock. High Low ------ ------ 2001 --------------------- June 14 to December 12 $22.48 $10.99 FMC Technologies, Inc. Transfer Agent The transfer agent and registrar for FMC Technologies, Inc. common stock is Computershare Investor Services LLC. You may contact the transfer agent and registrar at the address set forth below. All correspondence should be sent to the following address: Computershare Investor Services LLC 2 North LaSalle Street Chicago, Illinois 60602 (800) 689-5259 (312) 360-5259 FMC Technologies, Inc. and FMC Corporation are each subject to the informational reporting requirements of the Securities Exchange Act of 1934, as amended, and accordingly, each company files registration statements, reports, proxy statements and other information with the SEC, including financial statements. FMC Technologies, Inc. has been subject to the Securities Exchange Act Reporting requirements for at least 90 days and is current in its reporting. If you would like more information about FMC Technologies, Inc., we urge you to read FMC Technologies, Inc.'s reports filed with the SEC. You may read and copy FMC Technologies, Inc.'s and FMC Corporation's reports at the public reference facilities of the SEC at 450 Fifth Street, N.W., Washington, D.C. You may also inspect these reports at the SEC's website at http://www.sec.gov or you may obtain copies of these materials at prescribed rates from the Public Reference Section of the SEC, 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. Each of FMC Technologies, Inc. and FMC Corporation maintains a website that offers additional information about the company. - Visit FMC Technologies, Inc.'s website at http://www.fmcti.com - Visit FMC Corporation's website at http://www.fmc.com 8 EX-99 7 fmcex99-3_52724.txt EXHIBIT 99.3 - PRESS RELEASE EXHIBIT 99.3 FMC CORPORATION COMPLETES SPIN-OFF OF FMC TECHNOLOGIES, INC. Philadelphia, December 31, 2001 -- FMC Corporation (NYSE: FMC) announced today it has completed the separation of FMC Technologies, Inc. (NYSE: FTI) through the distribution of all of its remaining shares of FMC Technologies, Inc. common stock owned by FMC Corporation. As a result of this distribution, FMC Technologies, Inc. is now a fully independent company. On November 29, 2001, the FMC Corporation board of directors declared a dividend to holders of FMC Corporation common stock consisting of 53,950,000 shares of FMC Technologies, Inc. common stock owned by FMC Corporation. These shares represented approximately 83 percent of the outstanding FMC Technologies, Inc. common stock. This dividend was paid as of 6:00 p.m. (Eastern Time), on December 31, 2001, in the amount of 1.71972131 shares of FMC Technologies, Inc. common stock for each share outstanding of FMC Corporation common stock. Cash will be issued in lieu of fractional shares. On December 14, 2001, an information statement was mailed to FMC Corporation shareholders that included information on the distribution ratio, treatment of fractional shares, U.S. federal income tax treatment, background on the businesses of FMC Technologies, Inc. and where shareholders could obtain additional information. FMC Corporation and FMC Technologies, Inc. are each subject to the informational reporting requirements of the Securities Exchange Act of 1934, as amended, and accordingly, each company files registration statements, reports, proxy statements and other information with the Securities and Exchange Commission, including financial statements. Each company also maintains a website that offers additional information about the company: FMC Corporation at http://www.fmc.com and FMC Technologies at http://www.fmctechnologies.com. - ------------------ ------------------------------ FMC Corporation is a global, diversified chemical company serving agricultural, industrial and consumer markets for more than a century with innovative solutions, applications and products. The company employs over 6,000 people throughout the world. FMC Corporation divides its businesses into three segments: Agricultural Products, Specialty Chemicals and Industrial Chemicals. Safe Harbor Statement under the Private Securities Act of 1995: Statements in this news release that are forward-looking statements are subject to various risks and uncertainties concerning specific factors described in FMC Corporation's 2000 Form 10-K and other SEC filings. Such information contained herein represents management's best judgment as of the date hereof based on information currently available. FMC Corporation does not intend to update this information and disclaims any legal obligation to the contrary. Historical information is not necessarily indicative of future performance. -----END PRIVACY-ENHANCED MESSAGE-----