ex1016amendedandrestated






  #90914078v33         AMENDED AND RESTATED   EMPLOYEE MATTERS AGREEMENT  by and between    FMC CORPORATION    and    LIVENT CORPORATION    Dated as of February 4, 2019    





 






  i  #90914078v33   TABLE OF CONTENTS    PAGE  ARTICLE I  DEFINITIONS  Section 1.01.  Certain Definitions........................................................................................1  ARTICLE II  GENERAL ALLOCATION OF LIABILITIES; INDEMNIFICATION  Section 2.01.  Allocation of Employee-Related Liabilities ..................................................8  Section 2.02.  Indemnification .............................................................................................9  ARTICLE III  EMPLOYEES AND CONTRACTORS; EMPLOYMENT AND  COLLECTIVE BARGAINING AGREEMENTS  Section 3.01.  Transfers of Employment; Post-IPO Transfers ............................................9  Section 3.02.  Contractors .................................................................................................12  Section 3.03.  Assumption of Collective Bargaining Agreements; Labor Relations .........12  Section 3.04.  Assumption of Individual Lithium Employee Agreements and Lithium  Contractor Agreements ..............................................................................12  Section 3.05.  Assignment of Specified Rights ...................................................................13  ARTICLE IV  PLANS  Section 4.01.  Plan Participation .......................................................................................13  Section 4.02.  Adoption and Administration of Lithium Plans; Service Credit .................13  ARTICLE V  RETIREMENT PLANS  Section 5.01.  401(k) Plan..................................................................................................14  Section 5.02.  Non-U.S. Defined Contribution Plans ........................................................15  Section 5.03.  Parent U.S. Qualified Pension Plan ...........................................................15  Section 5.04.  Non-U.S. Pension Plans ..............................................................................16  Section 5.05.  Parent NQ Savings Plan .............................................................................16  Section 5.06.  Parent NQ Pension Plan .............................................................................17  ARTICLE VI  HEALTH AND WELFARE PLANS; PAID TIME OFF AND VACATION  Section 6.01.  Cessation of Participation in Parent H&W Plans; Participation in  Lithium H&W Plans ...................................................................................17  Section 6.02.  Assumption of Health and Welfare Plan Liabilities ...................................18  





 






ii  #90914078v33   Section 6.03.  Post-Retirement Health and Welfare Benefits ............................................19  Section 6.04.  Flexible Spending Account Plan Treatment ...............................................19  Section 6.05.  Workers’ Compensation Liabilities ............................................................19  Section 6.06.  Vacation and Paid Time Off .......................................................................19  Section 6.07.  COBRA and HIPAA ....................................................................................20  ARTICLE VII  INCENTIVE COMPENSATION  Section 7.01.  Cash Incentive and Cash Bonus Plans .......................................................20  ARTICLE VIII  TREATMENT OF OUTSTANDING EQUITY AWARDS  Section 8.01.  No Adjustments at the IPO ..........................................................................21  Section 8.02.  RSU and Banked PRSU Distribution Adjustments .....................................21  Section 8.03.  Unbanked PRSU Distribution Adjustments ................................................22  Section 8.04.  Stock Option Distribution Adjustments .......................................................24  Section 8.05.  Equity Award Adjustment Illustrations .......................................................25  Section 8.06.  Miscellaneous Terms and Actions; Tax Reporting and Withholding .........25  ARTICLE IX  PERSONNEL RECORDS; PAYROLL AND TAX WITHHOLDING  Section 9.01.  Personnel Records ......................................................................................28  Section 9.02.  Payroll; Tax Reporting and Withholding ...................................................28  ARTICLE X  NON-U.S. EMPLOYEES AND EMPLOYEE PLANS  Section 10.01.  Special Provisions for Employees and Employee Plans Outside of  the United States ........................................................................................28  ARTICLE XI  GENERAL AND ADMINISTRATIVE  Section 11.01.  Sharing of Participant Information ..........................................................29  Section 11.02.  Cooperation ..............................................................................................29  Section 11.03.  Notices of Certain Events..........................................................................29  Section 11.04.  No Third Party Beneficiaries ....................................................................30  Section 11.05.  Fiduciary Matters .....................................................................................30  Section 11.06.  Consent of Third Parties ...........................................................................30  Section 11.07.  Sponsored Employees ...............................................................................31  ARTICLE XII  DISPUTE RESOLUTION  Section 12.01.  General .....................................................................................................31  





 






iii  #90914078v33   ARTICLE XIII  MISCELLANEOUS  Section 13.01.  General .....................................................................................................31  Section 13.02.  Entire Agreement; References ..................................................................31  





 






    #90914078v33   AMENDED AND RESTATED EMPLOYEE MATTERS AGREEMENT  This AMENDED AND RESTATED EMPLOYEE MATTERS AGREEMENT,  dated as of February 4, 2019 is by and between FMC CORPORATION, a Delaware  corporation (“Parent”), and LIVENT CORPORATION, a Delaware corporation (the  “Company”).  R E C I T A L S  WHEREAS, Parent and the Company have entered into the Separation and  Distribution Agreement, dated as of October 15, 2018 (the “Separation and Distribution  Agreement”), pursuant to which Parent and the Company will effectuate the Transactions;  WHEREAS, as contemplated by the Separation and Distribution Agreement,  Parent and the Company previously entered into the Employee Matters Agreement (the  “Prior Agreement”), dated as of October 15, 2018 (the “Original Effective Date”), for  the purpose of allocating between them the Assets, Liabilities and responsibilities with  respect to certain employee matters (including employee compensation and benefit plans  and programs);   WHEREAS, Parent and the Company desire to amend and restate the Prior  Agreement as set forth herein, and this Agreement shall supersede and replace the Prior  Agreement in its entirety as if it were in effect as of the Original Effective Date;   WHEREAS, Parent and the Company have agreed that, except as otherwise  specifically provided herein, the general approach and philosophy underlying this  Agreement is to (a) allocate Assets, Liabilities and responsibilities to the Lithium Group  (as opposed to the Parent Group) to the extent they relate to current or former employees  and other service providers primarily related to the Lithium Assets or the Lithium Business  and (b) allocate Assets, Liabilities and responsibilities (other than those described in clause  (a) above) to the Parent Group (as opposed to the Lithium Group); and  WHEREAS, except as expressly set forth herein, this Agreement is not intended to  address the matters specifically and expressly covered by the Plan of Reorganization (as  defined in the Separation and Distribution Agreement).  NOW, THEREFORE, in consideration of the mutual agreements, provisions and  covenants contained in this Agreement, the parties, intending to be legally bound, hereby  agree as follows:  ARTICLE I  DEFINITIONS  Section 1.01. Certain Definitions.  For purposes of this Agreement, the following  terms shall have the following meanings; provided that capitalized terms used but not  otherwise defined in this Section 1.01 shall have the respective meanings ascribed to such  terms in the Separation and Distribution Agreement:  





 






  2  #90914078v33   “2018 Cash Bonuses” has the meaning set forth in Section 7.01 hereto.  “Adjusted Banked Parent PRSU” means any Banked Parent PRSU adjusted  pursuant to Section 8.02(b) or Section 8.02(c) hereto.  “Adjusted Company Stock Value” means the product of (a) the Company Stock  Value multiplied by (b) the Distribution Ratio.   “Adjusted Parent Awards” means, collectively, the Adjusted Parent Options, the  Adjusted Banked Parent PRSUs, the Adjusted Unbanked Parent PRSUs and the Adjusted  Parent RSUs.   “Adjusted Parent Option” means any Parent Option adjusted pursuant to Section  8.04(b) hereto.  “Adjusted Parent Post-Distribution Stock Value” means the amount equal to the  Parent Pre-Distribution Stock Value less the Adjusted Company Stock Value.  “Adjusted Parent RSU” means any Parent RSU adjusted pursuant to Section  8.02(b) or Section 8.02(c) hereto.  “Adjusted Unbanked Parent PRSU” means any Unbanked Parent PRSU adjusted  pursuant to Section 8.03(b) or Section 8.03(c) hereto.  “Agreement” means this Amended and Restated Employee Matters Agreement,  including all of the schedules and exhibits hereto, as may be amended from time to time in  accordance with its terms.   “Banked Parent PRSU” means any Parent PRSU (or portion thereof) for which  the applicable performance period has been completed as of the applicable date of  determination.  “Benefits Commencement Date” means (a) January 1, 2019 (in the case of U.S.  Lithium Participants) and (b) the Separation Date (in the case of Non-U.S. Lithium  Participants).    “Benefits Transition Period” has the meaning set forth in Section 5.01(c) hereto.  “COBRA” means the continuation coverage requirements for “group health plans”  under Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985, as codified  in Section 4980B of the Code and Sections 601 through 608 of ERISA.   “Collective Bargaining Agreements” means any and all agreements,  memorandums of understanding, contracts, letters, side letters and contractual obligations  of any kind, nature and description, oral or written, that have been entered into between or  that involve or apply to any employer and any labor organization, union, employee  association, agency or employee committee or plan.  





 






  3  #90914078v33   “Company” has the meaning set forth in the preamble hereto.  “Company Stock Value” means the value of a share of Company Common Stock  that will be determined by the Parent Board (or an appropriate committee thereof), in its  sole discretion, in a manner intended to preserve the aggregate value of the applicable  outstanding equity awards.  “Distribution Effective Time” means the effective time of the Distribution.     “Delayed Transfer Employee” means any Lithium Inactive Employee, New  Lithium Employee, Transferred Lithium Employee or Sponsored Employee (to the extent  applicable).  “Delayed Transfer Period” has the meaning set forth in Section 3.01(b) hereto.   “Distribution Ratio” means the number of shares of Company Common Stock  distributed in the Distribution in respect of one share of Parent Common Stock.  “Employee Plan” means any (a) “employee benefit plan” as defined in Section 3(3)  of ERISA, (b) compensation, employment, consulting, severance, termination protection,  change in control, transaction bonus, retention or similar plan, agreement, arrangement,  program or policy or (c) other plan, agreement, arrangement, program or policy providing  for compensation, bonuses, profit-sharing, equity or equity-based compensation or other  forms of incentive or deferred compensation, vacation benefits, insurance (including any  self-insured arrangement), medical, dental, vision, prescription or fringe benefits, life  insurance, relocation or expatriate benefits, perquisites, disability or sick leave benefits,  employee assistance program, supplemental unemployment benefits or post-employment  or retirement benefits (including compensation, pension, health, medical or insurance  benefits), in each case whether or not written.  “ERISA” means the Employee Retirement Income Security Act of 1974, as  amended, together with the rules and regulations promulgated thereunder.  “Former Parent Employee” means each individual who, as of immediately prior  to the Distribution Effective Time, is a former employee of any member of the Parent  Group (other than any individual who was last actively employed primarily with respect to  the Lithium Assets or the Lithium Business).   “H&W Plan” means any Parent H&W Plan or Lithium H&W Plan.  “HIPAA” means the health insurance portability and accountability requirements  for “group health plans” under the Health Insurance Portability and Accountability Act of  1996, as amended, together with the rules and regulations promulgated thereunder.  “Lithium 401(k) Plan” means any Lithium Plan that is a defined contribution plan  intended to qualify under Section 401(a) of the Code.  





 






  4  #90914078v33   “Lithium Awards” means, collectively, the Lithium Options, the Lithium PRSUs  and the Lithium RSUs.  “Lithium Assumed Employee Liabilities” has the meaning set forth in Section  2.01(b) hereto.  “Lithium CBA” means any Collective Bargaining Agreement covering Lithium  Employees or Lithium Contractors, as applicable, as listed on Schedule I hereto.   “Lithium Change in Control” has the meaning set forth in Section 8.06(b) hereto.  “Lithium Contractor” means each individual independent contractor or consultant  who, as of the Separation Effective Time, primarily provides or provided services with  respect to the Lithium Assets or the Lithium Business.  “Lithium Employee” means each (a) individual who, as of the Separation  Effective Time, is (i) actively employed primarily with respect to the Lithium Assets or the  Lithium Business by any member of the Parent Group or the Lithium Group or (ii) (x) an  inactive employee (including any employee on short- or long-term  disability leave or other  authorized leave of absence) or (y) a former employee and, in each case, who was last  actively employed primarily with respect to the Lithium Assets or the Lithium Business by  any member of the Parent Group or the Lithium Group, (b) Transferred Lithium Employee  or (c) New Lithium Employee.  “Lithium Equity Plan” has the meaning set forth in Section 8.06(a) hereto.  “Lithium FSAs” has the meaning set forth in Section 6.04 hereto.  “Lithium H&W Plan” means any Lithium Plan that is (a) an “employee welfare  benefit plan” or “welfare plan” (as defined under Section 3(1) of ERISA) or (b) a similar  plan that is sponsored, maintained, administered, contributed to or entered into outside of  the United States. For the avoidance of doubt, Lithium FSAs are Lithium H&W Plans.   “Lithium Inactive Employee” has the meaning set forth in Section 3.01(b) hereto.  “Lithium NQ Savings Plan” has the meaning set forth in Section 5.05(a) hereto.  “Lithium Option” has the meaning set forth in Section 8.04(a) hereto.  “Lithium Participant” means any individual who is a Lithium Employee or  Lithium Contractor, and any beneficiary, dependent, or alternate payee of such individual,  as the context requires.  “Lithium Plan” means any Employee Plan that (a) is or was sponsored, maintained,  administered, contributed to or entered into by any member of the Lithium Group, whether  before, as of or after the Separation Date or (b) for which Liabilities transfer to any member  of the Lithium Group under this Agreement or pursuant to applicable Law as a result of the  Distribution.  





 






  5  #90914078v33   “Lithium PRSU” means each award of restricted share units with respect to  Company Common Stock granted under the Lithium Equity Plan pursuant to Section  8.03(b) that is subject to performance-based vesting conditions.   “Lithium RSU” has the meaning set forth in Section 8.02(a) hereto.  “Lithium Specified Rights” means any and all rights to enjoy, benefit from or  enforce any and all restrictive covenants, including covenants relating to non-disclosure,  non-solicitation, non-competition, confidentiality or Intellectual Property, applicable or  related, in whole or in part, to the Lithium Assets or the Lithium Business pursuant to any  Employee Plan covering or with any Lithium Employee or Lithium Contractor and to  which any member of the Lithium Group or Parent Group is a party; provided that, with  respect to any Intellectual Property existing, conceived, created, developed or reduced to  practice prior to the Separation Effective Time, the foregoing rights to enjoy, benefit from  or enforce any restrictive covenants related to Intellectual Property is limited to those  restrictive covenants related to Intellectual Property included in the Lithium Assets.  “New Lithium Employee” means any individual who is hired following the  Separation Effective Time to primarily provide services to the Lithium Assets or the  Lithium Business.  “Non-U.S. Lithium Participant” means any Lithium Participant who is not a U.S.  Lithium Participant.   “Parent” has the meaning set forth in the preamble hereto.  “Parent 401(k) Plan” means any Parent Plan that is a defined contribution plan  intended to qualify under Section 401(a) of the Code.  “Parent Awards” means, collectively, the Parent Options, the Banked Parent  PRSUs, the Unbanked Parent PRSUs and the Parent RSUs.   “Parent Bonus Plan” has the meaning set forth in Section 7.01 hereto.  “Parent CBA” means any Collective Bargaining Agreement covering Parent  Employees or Parent Contractors, as applicable.   “Parent Change in Control” has the meaning set forth in Section 8.06(b) hereto.  “Parent Contractor” means each individual independent contractor or consultant  (other than a Lithium Contractor) of any member of the Parent Group, or solely for  purposes of Article VIII, any non-employee director of the Parent Board.   “Parent Employee” means each individual who, as of the Separation Effective  Time, is (a) not a Lithium Employee and (b) either (i) actively employed by any member  of the Parent Group or (ii) (x) an inactive employee (including any employee on short- or  long-term disability leave or other authorized leave of absence) or (y) a former employee,  in each case, of any member of the Parent Group.  





 






  6  #90914078v33   “Parent Equity Plan” means the FMC Corporation Incentive Compensation and  Stock Plan.   “Parent Executive Severance Plan” means the FMC Corporation Executive  Severance Plan.  “Parent FSA” means any Parent Plan that is a flexible spending account for health  and dependent care expenses.  “Parent H&W Plan” means any Parent Plan that is (a) an “employee welfare  benefit plan” or “welfare plan” (as defined under Section 3(1) of ERISA) or (b) a similar  plan that is sponsored, maintained, administered, contributed to or entered into outside of  the United States.  For the avoidance of doubt, Parent FSAs are Parent H&W Plans.     “Parent NQ Pension Plan” means the FMC Corporation Salaried Employees’  Equivalent Retirement Plan.   “Parent NQ Savings Plan” means the FMC Corporation Non-Qualified Savings  and Investment Plan.  “Parent Option” means each option to acquire Parent Common Stock granted  under the Parent Equity Plan.   “Parent Participant” means any individual who is a Parent Employee or Parent  Contractor, and any beneficiary, dependent, or alternate payee of such individual, as the  context requires.  “Parent Plan” means any Employee Plan (other than a Lithium Plan) sponsored,  maintained, administered, contributed to or entered into by any member of the Parent  Group.  For the avoidance of doubt, no Lithium Plan is a Parent Plan.    “Parent Pre-Distribution Stock Value” means the value of a share of Parent  Common Stock that will be determined by the Parent Board (or an appropriate committee  thereof), in its sole discretion, in a manner intended to preserve the aggregate value of the  applicable outstanding equity awards.  “Parent PRSU” means each award of restricted share units with respect to Parent  Common Stock granted under the Parent Equity Plan subject to performance-based vesting  conditions.   “Parent Retained Employee Liabilities” has the meaning set forth in Section  2.01(a) hereto.  “Parent Retiree H&W Plan” means any Parent H&W Plan that provides or  promises any post-retirement health, medical or life insurance or similar benefits (whether  insured or self-insured).  





 






  7  #90914078v33   “Parent RSU” means each award of restricted share units with respect to Parent  Common Stock granted under the Parent Equity Plan (other than Parent PRSUs).   “Parent Specified Rights” means any and all rights to enjoy, benefit from or  enforce any and all restrictive covenants, including covenants relating to non-disclosure,  non-solicitation, non-competition, confidentiality or Intellectual Property, pursuant to any  Employee Plan covering or with any Lithium Employee, Lithium Contractor, Parent  Employee or Parent Contractor and to which any member of the Lithium Group or Parent  Group is a party (other than Lithium Specified Rights).  “Parent U.S. Qualified Pension Plan” means the FMC Corporation Employees’  Retirement Program, Salaried and Nonunion Hourly Employees’ Retirement Plan (Part I).  “Personnel Records” has the meaning set forth in Section 9.01 hereto.  “Separation Date” has the meaning set forth in the Separation and Distribution  Agreement.   “Separation Effective Time” means the closing of the IPO.   “Separation and Distribution Agreement” has the meaning set forth in the  recitals hereto.  “Sponsored Employee” means any Lithium Employee working on a visa or work  permit sponsored by Parent or a Parent Group member as of immediately prior to the  Separation Effective Time.  “Transferred Lithium Employee” means any individual who (a) did not become  a Lithium Employee effective on or before the Separation Effective Time and (b) Parent  and the Company mutually agree following the Separation Effective Time should have his  or her employment transferred from the Parent Group to the Lithium Group.  “UK Pension Plan” means the FMC Chemicals Pension Plan (together with all  obligations related thereto, including obligations associated with the winding-up of such  plan). For the avoidance of doubt, the UK Pension Plan is a Lithium Plan.    “Unbanked Parent PRSU” means any Parent PRSU (or portion thereof) for which  the applicable performance period has not been completed as of the applicable date of  determination.  “UK DC Plan” has the meaning set forth in Section 5.02(a) hereto.  “U.S. Lithium Employee” means any Lithium Employee who is employed (or, in  the case of former employees, last actively employed) in the United States.  “U.S. Lithium Participant” means any Lithium Participant employed or engaged  (or, in the case of former employees, individual independent contractors or consultants, last  actively employed or engaged, as applicable) in the United States.  





 






  8  #90914078v33   ARTICLE II  GENERAL ALLOCATION OF LIABILITIES; INDEMNIFICATION  Section 2.01. Allocation of Employee-Related Liabilities.  (a) Subject to the terms and conditions of this Agreement, effective as of the  Separation Effective Time, Parent shall, or shall cause the applicable member of the Parent  Group to, assume and retain, and no member of the Lithium Group shall have any further  obligation with respect to, any and all Liabilities (i) relating to, arising out of or in respect  of any Parent Participant or any Parent Plan, in each case, other than any Lithium Assumed  Employee Liabilities, or (ii) attributable to actions expressly specified to be taken by any  member of the Parent Group under this Agreement, in each case, (x) whether arising  before, on or after the Separation Date, (y) whether based on facts occurring before, on or  after the Separation Date and (z) irrespective of which Person such Liabilities are asserted  against or which Person such Liabilities attached to as a matter of applicable Law or  contract or (iii) expressly assumed or retained, as applicable, by any member of the Parent  Group pursuant to this Agreement (collectively, “Parent Retained Employee  Liabilities”).  For the avoidance of doubt, all Parent Retained Employee Liabilities are  Parent Liabilities for purposes of the Separation and Distribution Agreement.   (b) Subject to the terms and conditions of this Agreement, effective as of the  Separation Effective Time, the Company shall, or shall cause the applicable member of the  Lithium Group to, assume, and no member of the Parent Group shall have any further  obligation with respect to, any and all Liabilities (i) relating to, arising out of or in respect  of any Lithium Participant or any Lithium Plan or (ii) attributable to actions expressly  specified to be taken by any member of the Lithium Group under this Agreement, in each  case, (x) whether arising before, on or after the Separation Date, (y) whether based on facts  occurring before, on or after the Separation Date and (z) irrespective of which Person such  Liabilities are asserted against or which Person such Liabilities attached to as a matter of  applicable Law or contract (collectively, “Lithium Assumed Employee Liabilities”),  including without limitation:   (i) employment, separation or retirement agreements or arrangements  to the extent applicable to any Lithium Participant;   (ii) wages, salaries, incentive compensation, commissions, bonuses and  other compensation payable to any Lithium Participants, without regard to when  such wages, salaries, incentive compensation, equity compensation, commissions,  bonuses and other compensation are or may have been earned;   (iii) severance or similar termination-related pay or benefits applicable  to any Lithium Participant;   (iv) claims made by or with respect to any Lithium Participant in  connection with any employee benefit plan, program or policy, without regard to  when such claim is in respect of;   





 






  9  #90914078v33   (v) workers’ compensation and unemployment compensation benefits  for all Lithium Participants;   (vi) change in control, transaction bonus, retention and stay bonuses  payable to any Lithium Participants;   (vii) the Lithium CBAs;   (viii) any applicable Law (including ERISA and the Code) to the extent  related to participation by any Lithium Participant in any Employee Plan;   (ix) any Actions, allegations, demands, assessments, settlements or  judgments relating to or involving any Lithium Participant (including, without  limitation, those relating to labor and employment, wages, hours, overtime,  employee classification, hostile workplace, civil rights, discrimination, harassment,  affirmative action, work authorization, immigration, safety and health, information  privacy and security, workers’ compensation, continuation coverage under group  health plans, wage payment, hiring practice and the payment and withholding of  Taxes);    (x) any costs or expenses incurred in designing, establishing and  administering any Lithium Plans or payroll or benefits administration for Lithium  Participants;   (xi) the employer portion of any employment, payroll or similar Taxes  relating to any of the foregoing or any Lithium Participant; and  (xii) any Liabilities expressly assumed or retained, as applicable, by any  member of the Lithium Group pursuant to this Agreement.   For the avoidance of doubt, all Lithium Assumed Employee Liabilities are Lithium  Liabilities for purposes of the Separation and Distribution Agreement.  Section 2.02. Indemnification.  For the avoidance of doubt, the provisions of  Article VIII of the Separation and Distribution Agreement shall apply to and govern the  indemnification rights and obligations of the parties with respect to the matters addressed  by this Agreement.    ARTICLE III  EMPLOYEES AND CONTRACTORS; EMPLOYMENT AND  COLLECTIVE BARGAINING AGREEMENTS  Section 3.01. Transfers of Employment; Post-IPO Transfers.    (a) Effective as of or prior to the Separation Effective Time, (i) the employment  of each Lithium Employee, to the extent employed at such time, will be transferred to or  continued by, as applicable, a member of the Lithium Group and (ii) the employment of  each Parent Employee, to the extent employed at such time, will be continued by a member  





 






  10  #90914078v33   of the Parent Group.  Following the Separation Effective Time and prior to the Distribution  Effective Time, Parent and the Company shall cooperate in good faith to transfer the  employment of each Transferred Lithium Employee from the Parent Group to the Lithium  Group, and the parties shall use their reasonable best efforts to cause all such transfers of  employment to occur no later than the Distribution Effective Time; provided however, that  the parties agree and acknowledge that there may be a limited number of Transferred  Lithium Employees whose employment may not be transferred to the Lithium Group until  on or after the Distribution Effective Time, in which case the parties will mutually  cooperate to transfer the employment of such individuals to the Lithium Group as soon as  possible following the Distribution Effective Time and, unless as otherwise contemplated  in connection with the Transition Services Agreement, in no event later than the expiration  of the Delayed Transfer Period. For the avoidance of doubt, each Transferred Lithium  Employee shall be deemed to be a “Lithium Employee” for all purposes of the Agreement  following the applicable date of transfer of his or her employment from the Parent Group  to the Lithium Group.   (b) Notwithstanding anything to the contrary in this Agreement, each U.S.  Lithium Employee who, as of the Separation Effective Time, is (i) on an approved leave  of absence and (ii) receiving long-term or short-term disability benefits under a Parent  H&W Plan (each, a “Lithium Inactive Employee”) will continue to be employed by a  member of the Parent Group until such individual returns to active service.  Upon a Lithium  Inactive Employee’s return to active service, such Lithium Inactive Employee will be  transferred to a member of the Lithium Group (or, if such Lithium Inactive Employee  returns to active service following the Distribution Effective Time, the Company will make  an offer of employment to such Lithium Inactive Employee on terms and conditions of  employment consistent with (A)  this Agreement and (B)  the terms and conditions of  employment applicable to such Lithium Inactive Employee at such time); provided, that  such Lithium Inactive Employee returns to active service within 18  months following the  Separation Date (such period, the “Delayed Transfer Period”).  For the avoidance of  doubt, (x) effective on or before the Separation Effective Time, the employment of each  Lithium Employee (other than any Lithium Inactive Employee) who is on an approved  leave of absence (including parental, military or other authorized leave of absence) will  continue with or be transferred to, as applicable, the Lithium Group in accordance with  Section 3.01(a) and (y) all costs relating to any compensation, benefits, severance or other  employment-related costs in respect of Lithium Inactive Employees will constitute Lithium  Assumed Employee Liabilities.  (c) Any New Lithium Employees will be hired by a member of the Lithium  Group, and will be deemed to be a Lithium Employee for all purposes of this Agreement  from and after the applicable date of hire; provided that, to the extent any such individual  cannot be hired by a member of the Lithium Group prior to the Distribution Effective Time,  the parties will cooperate in good faith for such individual to be hired by a member of the  Parent Group and thereafter transferred to a member of the Lithium Group, effective as of  no later than the Distribution Effective Time.  For the avoidance of doubt, any New Lithium  Employee will be deemed to be a Lithium Employee for all purposes of this Agreement  following his or her applicable hire date (regardless of whether hired by a member of the  Lithium Group or a member of the Parent Group).  





 






  11  #90914078v33   (d) Each of the parties hereto agrees to execute, and to use their reasonable best  efforts to have the applicable employees execute, any such documentation or consents as  may be necessary or desirable to reflect or effectuate any such assignments or transfers  contemplated by this Section 3.01.  (e) Effective as of the Separation Effective Time, (i) the Company shall adopt or  maintain, and shall cause each member of the Lithium Group to adopt or maintain, leave  of absence programs and (ii) the Company shall honor, and shall cause each member of the  Lithium Group to honor, all terms and conditions of authorized leaves of absence which  have been granted to any Lithium Participant before the Separation Effective Time,  including such leaves that are to commence on or after the Separation Effective Time.  (f) In the event that the parties reasonably determine following the Separation  Effective Time that (i) any individual employed outside the United States who is not a  Lithium Employee has inadvertently become employed by a member of the Lithium Group  (due to the operation of transfer of undertakings or similar applicable Law), the parties  shall cooperate and take such actions as may be reasonably necessary in order to cause the  employment of such individual to be promptly transferred to a member of the Parent Group,  and Parent shall reimburse the applicable members of the Lithium Group for all  compensation, benefits and other employment-related costs incurred by the Lithium Group  members in employing and transferring such individuals or (ii) any individual employed  outside the United States who was intended to transfer to, and become employed by, a  member of the Lithium Group pursuant to the operation of transfer of undertakings or  similar applicable Law instead continues to be employed by the Parent Group, the parties  shall cooperate and take such actions as may be reasonably necessary in order to cause the  employment of such individual to be promptly transferred to a member of the Lithium  Group, and the Company shall reimburse the applicable members of the Parent Group for  all compensation, benefits and other employment-related costs incurred by Parent Group  members in employing and transferring such individuals.   (g) With respect to any employment agreements or restrictive covenant  agreements with Lithium Employees or Parent Employees to which a member of the  Lithium Group or a member of the Parent Group, respectively, is not a party, or which do  not otherwise transfer to a Lithium Group member or a Parent Group member, respectively,  by operation of applicable Law, the parties shall use reasonable best efforts to assign the  applicable employment agreement to a member of the Lithium Group or a member of the  Parent Group, as applicable, in the applicable jurisdiction, and the Company or Parent, as  applicable, shall, or shall cause a member of the Lithium Group or a member of the Parent  Group, respectively, to assume and perform such employment agreements in accordance  with their terms; provided, however, that this Section 3.01(g) shall not apply to (i) any  employment agreements with any Lithium Participants who are employed in a jurisdiction  outside of the United States in which the parties do not intend for such agreements to be  transferred to the Lithium Group or (ii) any executive severance agreements with any  Lithium Employees under the Parent Executive Severance Plan.  (h) Neither the Separation, the Distribution nor any assignment, transfer or  continuation of the employment of employees as contemplated by this Article III shall be  





 






  12  #90914078v33   deemed a termination of employment or service of any Lithium Participant or Parent  Participant for purposes of this Agreement or any Parent Plan or Lithium Plan (including,  for the avoidance of doubt, any individual employment, severance, change in control,  independent contractor, consulting or similar agreements).   (i) Except as provided in Section 8.06(h), with respect to any Delayed Transfer  Employee, references to “Separation Effective Time”, “Separation Date”, “Benefits  Commencement Date”, “Distribution Effective Time” and “Distribution Date” in this  Agreement, as applicable, shall in each case be deemed to refer to the date such Delayed  Transfer Employee commences employment with the Lithium Group, mutatis mutandis, if  later.   Section 3.02. Contractors.  With respect to any independent contractor or  consulting agreements with Lithium Contractors or Parent Contractors to which a Lithium  Group member or a Parent Group member, respectively, is not a party, or which do not  otherwise transfer to a Lithium Group member or a Parent Group member, respectively,  by operation of applicable Law, the parties shall use reasonable best efforts to assign the  applicable agreements to a member of the Lithium Group or a member of the Parent Group,  as applicable, in the applicable jurisdiction, and the Company or Parent, as applicable,  shall, or shall cause a member of the Lithium Group or a member of the Parent Group,  respectively, to assume and perform such independent contractor and consulting  agreements.  Section 3.03. Assumption of Collective Bargaining Agreements; Labor Relations.  (a) From and after the Separation Effective Time, the Company hereby agrees to  comply with and honor the Lithium CBAs and become, and fulfill its obligations as, a  successor employer to the applicable Parent Group member for all purposes under the  Lithium CBAs with respect to any Lithium Employee or Lithium Contractor, and the  Company assumes responsibility for, and Parent or the relevant member of the Parent  Group hereby ceases to be responsible for or to otherwise have any Liability in respect of,  the Lithium CBAs to the extent they pertain to any Lithium Employee or Lithium  Contractor.   (b) To the extent required by applicable Law, any Lithium CBA, Parent CBA or  any other Collective Bargaining Agreement, the parties shall cooperate and consult in good  faith to provide notice, engage in consultation, and take any similar action which may be  required on its part in connection with the IPO or Distribution.  Section 3.04. Assumption of Individual Lithium Employee Agreements and  Lithium Contractor Agreements.  From and after the Separation Effective Time, the  Company hereby agrees to comply with and honor any employment or services agreement  between any member of the Parent Group or the Lithium Group, as the case may be, on the  one hand, and any Lithium Employee or Lithium Contractor, on the other hand, and  assumes responsibility for, and, to the extent applicable, Parent or the relevant member of  the Parent Group hereby ceases to be responsible for or to otherwise have any Liability in  respect of, such agreements. For the avoidance of doubt, this Section 3.04 shall not apply  





 






  13  #90914078v33   to any executive severance agreements with any Lithium Employees under Parent’s  Executive Severance Plan.   Section 3.05. Assignment of Specified Rights.  To the extent permitted by  applicable Law and the applicable agreement, if any, effective as of the Separation  Effective Time, (i) Parent hereby assigns, to the maximum extent possible, on behalf of  itself and the Parent Group, the Lithium Specified Rights, to the Company and (ii) the  Company hereby assigns, to the maximum extent possible, on behalf of itself and the  Lithium Group, the Parent Specified Rights, to Parent.  ARTICLE IV  PLANS  Section 4.01. Plan Participation.  Except as otherwise expressly provided in this  Agreement, effective as of immediately prior to the applicable Benefits Commencement  Date, (a) (i) all Lithium Participants shall cease any participation in, and benefit accrual  under, Parent Plans and (ii)  all members of the Lithium Group shall cease to be  participating employers under the Parent Plans and, (b) to the extent applicable, (i) all  Parent Participants shall cease any participation in, and benefit accrual under, Lithium  Plans and (ii) all members of the Parent Group shall cease to be participating employers  under the Lithium Plans.  Prior to the Separation Date, Parent and the Company shall take  all actions necessary to effectuate the actions contemplated by this Section 4.01 and to  cause (A) the applicable Lithium Group member to assume or retain all Liabilities with  respect to each Lithium Plan and the applicable Parent Group member to assume or retain  all Liabilities with respect to each Parent Plan, in each case, effective as of the Separation  Effective Time and (B) all Assets of any Lithium Plan to be transferred to or retained by  the applicable Lithium Group member in the applicable jurisdiction and all Assets of any  Parent Plan to be transferred to or retained by the applicable Parent Group member in the  applicable jurisdiction, in each case, effective as of the Separation Effective Time.    Section 4.02. Adoption and Administration of Lithium Plans; Service Credit.    (a) To the extent necessary to comply with its obligations under this Agreement,  the Company or a member of the Lithium Group shall adopt, or cause to be adopted, at the  Company’s expense, Lithium Plans to be effective from and after the applicable Benefits  Commencement Date.  The Company expressly agrees to reimburse Parent for any and all  costs and expenses incurred by the Parent Group before the applicable Benefits  Commencement Date to design, establish or administer any Lithium Plan.  (b) For the avoidance of doubt, from and after the applicable Benefits  Commencement Date, the applicable member of the Lithium Group shall be responsible  for the administration of the applicable Lithium Plan, and no member of the Parent Group  shall have any Liability or obligation (including any administration obligation) with respect  to any Lithium Plans.  (c) From and after the applicable Benefits Commencement Date, for purposes of  determining eligibility to participate, vesting and benefit accrual under any Lithium Plan  





 






  14  #90914078v33   in which a Lithium Participant is eligible to participate on and following the applicable  Benefits Commencement Date, such Lithium Participant’s service with any member of the  Parent Group or the Lithium Group, as the case may be, prior to the applicable Benefits  Commencement Date shall be treated as service with the Lithium Group, to the extent  recognized by the Parent Group or the Lithium Group, as applicable, under an analogous  Parent Plan or Lithium Plan, as applicable, prior to the applicable Benefits Commencement  Date; provided, however, that such service shall not be recognized to the extent that such  recognition would result in any duplication of benefits.  ARTICLE V  RETIREMENT PLANS  Section 5.01. 401(k) Plan.   (a) Effective as of the Benefits Commencement Date, each Lithium Participant  who participates in the Parent 401(k) Plan as of immediately prior to the Benefits  Commencement Date (i) will cease active participation in the Parent 401(k) Plan and  (ii) will become eligible to participate in the Lithium 401(k) Plan. For the avoidance of  doubt, all  employee pre-tax deferrals and employer contributions with respect to the  Lithium Participants will be made to the Lithium 401(k) Plan on and following the Benefits  Commencement Date.  (b) Effective as of the Distribution Effective Time, each Lithium Participant will  become eligible to elect a distribution of his or her account balance under the Parent 401(k)  Plan, including a voluntary “rollover distribution” of such Lithium Participant’s eligible  account balance under the Parent 401(k) Plan (other than any participant loans) to either  the Lithium 401(k) Plan or an Individual Retirement Account (or, for the avoidance of  doubt, such Lithium Participant may otherwise continue to maintain his or her account  under the Parent 401(k) Plan in accordance with the terms of the Parent 401(k) Plan), as  determined by each such Lithium Participant; provided that any portion of such Lithium  Participant’s account balance under the Parent 401(k) Plan to be “rolled over” to the  Lithium 401(k) Plan must be done in the form of cash (i.e., no in-kind or Parent Common  Stock transfers will be permitted).  In the event that a Lithium Participant makes a voluntary  election to rollover such Lithium Participant’s account balance from the Parent 401(k) Plan  to the Lithium 401(k) Plan, the Company agrees to cause the Lithium 401(k) Plan to accept  such rollover, to the extent permitted by applicable Law.   (c) Subject to participant rollovers as provided for in Section 5.01(b) above, all  Liabilities under the Parent 401(k) Plan (whether relating to Parent Participants or Lithium  Participants), including with respect to participant loans, will be retained by Parent and will  constitute Parent Retained Employee Liabilities; provided that any and all costs, expenses  or Liabilities relating to participation by Lithium Participants in the Parent 401(k) Plan  during the period, if any, between the Separation Date and the Benefits Commencement  Date (the “Benefits Transition Period”) shall be assumed by the Lithium Group and  constitute Lithium Assumed Employee Liabilities, which shall be reimbursed by the  Company to the Parent Group in accordance with the terms of the Transition Services  





 






  15  #90914078v33   Agreement.  For the avoidance of doubt, there will be no trust-to-trust transfer of any Assets  or Liabilities from the Parent 401(k) Plan to the Lithium 401(k) Plan.  (d) From and after the Benefits Commencement Date, the applicable member of  the Lithium Group shall be responsible for the administration of the Lithium 401(k) Plan,  and no member of the Parent Group shall have any Liability or obligation (including any  administration obligation) with respect to the Lithium 401(k) Plan.    Section 5.02. Non-U.S. Defined Contribution Plans.    (a) Effective as of the Separation Effective Time, the Lithium Plan that is a  defined contribution plan maintained for the benefit of Non-U.S. Lithium Participants in  the United Kingdom (the “UK DC Plan”) will be retained by the Lithium Group in  accordance with its terms, and, for the avoidance of doubt, (i) all obligations in respect of  the UK DC Plan will be retained by the Lithium Group from and after the Separation  Effective Time and (ii) any Liabilities relating to or arising from the UK DC Plan will  constitute Lithium Assumed Employee Liabilities.  (b) Effective on or before the Separation Effective Time, each Non-U.S. Lithium  Participant who participates in a Parent Plan that is a statutory India Provident Fund shall  cease active participation in such plan and will become eligible to participate in a Lithium  Plan that is a statutory India Provident Fund.  Section 5.03. Parent U.S. Qualified Pension Plan.  (a) Effective as of the Benefits Commencement Date, each Lithium Participant  who participates in the Parent U.S. Qualified Pension Plan will cease active participation  in the Parent U.S. Qualified Pension Plan (including the accrual of any additional benefits  under the Parent U.S. Qualified Pension Plan).  (b) On and following the Benefits Commencement Date, each Lithium  Participant who participates in the Parent U.S. Qualified Pension Plan as of immediately  prior to the Benefits Commencement Date shall receive credit for his or her service with  the Lithium Group on and following the Benefits Commencement Date for purposes of  attaining “early retirement” eligibility under, and in accordance with the terms of, the  Parent U.S. Qualified Pension Plan.   (c) From and after the Distribution Effective Time, the terms of the Parent U.S.  Qualified Pension Plan will govern the terms of distributions, if any, of any benefits  payable under the Parent U.S. Qualified Pension Plan to any Lithium Participants.  (d) All Liabilities under the Parent U.S. Qualified Pension Plan (whether relating  to Parent Participants or Lithium Participants) will be retained by Parent and will constitute  Parent Retained Employee Liabilities; provided, however, that any and all costs, expenses  or Liabilities relating to participation by Lithium Participants in the Parent U.S. Qualified  Pension Plan during the Benefits Transition Period shall be assumed by the Lithium Group  and constitute Lithium Assumed Employee Liabilities, which shall be reimbursed by the  





 






  16  #90914078v33   Company to the Parent Group in accordance with the terms of the Transition Services  Agreement.   Section 5.04. Non-U.S. Pension Plans.   (a) Effective as of the Separation Effective Time, the UK Pension Plan will be  retained by the Lithium Group in accordance with its terms, and, for the avoidance of doubt,  any Liabilities arising from or relating to the UK Pension Plan will constitute Lithium  Assumed Employee Liabilities.  Without limiting the generality of Schedule 5.05 of the  Separation Agreement, as of and following the Separation Effective Time, the  Bromborough Indemnity Deed will remain in full force and effect in accordance with its  terms; provided that any and all Liabilities related to or arising under the Bromborough  Indemnity Deed shall constitute Lithium Assumed Employee Liabilities.  (b) Effective on or before the Separation Effective Time, (i) each Non-U.S.  Lithium Participant who participates in a Parent Plan that is an India Gratuity Plan or Japan  Retirement Allowance Plan will cease active participation in such plan and will become  eligible to participate in a corresponding Lithium Plan and (ii) (A) the Company shall, and  shall cause the applicable member of the Lithium Group to, assume all Liabilities under  such India Gratuity Plan and Japan Retirement Plan with respect to Non-U.S. Lithium  Participants, (B) Parent shall, and shall cause the applicable member of the Parent Group  to, transfer all such Liabilities to the applicable member of the Lithium Group, and (C) the  Parent Group shall have no further Liability or obligation (including any administration  obligation) with respect thereto.    Section 5.05. Parent NQ Savings Plan.   (a) Effective as of the Benefits Commencement Date, each Lithium Participant  who participates in the Parent NQ Savings Plan as of immediately prior to the Benefits  Commencement Date (i) will cease active participation in the Parent NQ Savings Plan and  (ii) will become eligible to participate in a corresponding Lithium non-qualified savings  and investment plan (the “Lithium NQ Savings Plan”).  For the avoidance of doubt, from  and after the Benefits Commencement Date, each Lithium Participant shall not actively  participate in or accrue any additional benefits under the Parent NQ Savings Plan.   (b) During the Benefits Transition Period, any and all costs, expenses or  Liabilities relating to participation by Lithium Participants in the Parent NQ Savings Plan  shall be assumed by the Lithium Group and constitute Lithium Assumed Employee  Liabilities, which shall be reimbursed by the Company to the Parent Group in accordance  with the terms of the Transition Services Agreement. Effective as of the Benefits  Commencement Date, (i) the Company shall, and shall cause the Lithium NQ Savings Plan  to, accept all Assets and assume all Liabilities under the Parent NQ Savings Plan with  respect to Lithium Participants, (ii) Parent shall, and shall cause the Parent NQ Savings  Plan to, transfer all such Assets and Liabilities to the Lithium NQ Savings Plan, and (iii)  the Parent NQ Savings Plan and the Parent Group shall have no further Liability or  obligation (including any administration obligation) with respect thereto.  The Parent NQ  





 






  17  #90914078v33   Savings Plan shall continue to be responsible for Liabilities in respect of Parent  Participants.   (c) On and following the Benefits Commencement Date, any effective deferral  elections made by a Lithium Participant with respect to amounts deferred by such Lithium  Participant under, and in accordance with the terms of, the Parent NQ Savings Plan prior  to the Benefits Commencement Date, shall remain in effect with respect to such amounts  in accordance with their terms.  (d) Lithium Participants shall receive credit under the Lithium NQ Savings Plan  for vesting, eligibility and benefit service for all service credited for those purposes under  the Parent NQ Savings Plan as of the Benefits Commencement Date as if that service had  been rendered to the Lithium Group.  (e) To the maximum extent permitted by Section 409A of the Code, a Lithium  Participant shall not be considered to have undergone a “separation from service” for  purposes of Section 409A of the Code and the Parent NQ Savings Plan solely by reason of  the Distribution, and, following the Distribution Effective Time, the determination of  whether a Lithium Participant has incurred a separation from service with respect to his or  her benefit in the Lithium NQ Savings Plan shall be based solely upon his or her  performance of services for the Lithium Group.   Section 5.06. Parent NQ Pension Plan.  (a) Effective as of the Benefits Commencement Date, each Lithium Participant  who participates in the Parent NQ Pension Plan as of immediately prior to the Distribution  Effective Time will cease active participation in the Parent NQ Pension Plan and will not  accrue any additional benefits thereunder.   (b) At and following the Distribution Effective Time, the terms of the Parent NQ  Pension Plan (and any applicable deferral elections thereunder) will govern the terms of  any distributions of account balances made to Lithium Participants participating in the  Parent NQ Pension Plan.  (c) All Liabilities under the Parent NQ Pension Plan (whether relating to Parent  Participants or Lithium Participants) will be retained by Parent and will constitute Parent  Retained Employee Liabilities; provided, however, that any and all costs, expenses or  Liabilities relating to participation by Lithium Participants in the Parent NQ Pension Plan  during the Benefits Transition Period be assumed by the Lithium Group and constitute  Lithium Assumed Employee Liabilities, which shall be reimbursed by the Company to the  Parent Group in accordance with the terms of the Transition Services Agreement.   ARTICLE VI  HEALTH AND WELFARE PLANS; PAID TIME OFF AND VACATION  Section 6.01. Cessation of Participation in Parent H&W Plans; Participation in  Lithium H&W Plans.    





 






  18  #90914078v33   (a) Without limiting the generality of Section 4.01, effective as of the applicable  Benefits Commencement Date, Lithium Participants shall cease to participate in the Parent  H&W Plans; provided that any participation in, and benefit accrual under, Parent H&W  Plans by Lithium Participants during the Benefits Transition Period shall be in accordance  with, and pursuant to, the terms and conditions of the Transition Services Agreement.   (b) Effective as of the applicable Benefits Commencement Date, the Company  shall cause Lithium Participants who participate in a Parent H&W Plan immediately prior  to the applicable Benefits Commencement Date to be automatically enrolled or offered  participation in a corresponding Lithium H&W Plan.  (c) To the extent applicable, the Company shall cause Lithium H&W Plans to  recognize and maintain all coverage and contribution elections made by Lithium  Participants under the corresponding Parent H&W Plans as of the applicable Benefits  Commencement Date and apply such elections under the applicable Lithium H&W Plan  for the remainder of the period or periods for which such elections are by their terms  applicable.    (d) Neither the transfer or other movement of employment or service from any  member of the Parent Group to any member of the Lithium Group at any time before the  applicable Benefits Commencement Date nor the Distribution shall constitute or be treated  as a “status change” under the Parent H&W Plans or the Lithium H&W Plans.  (e) Subject to the terms of the applicable Lithium H&W Plan and applicable  Law, the Company shall use its reasonable best efforts to waive all limitations as to  preexisting conditions, exclusions and waiting periods with respect to participation and  coverage requirements applicable to Lithium Participants under any Lithium H&W Plan in  which such Lithium Participants may be eligible to participate on or after the applicable  Benefits Commencement Date.  Section 6.02. Assumption of Health and Welfare Plan Liabilities.  Subject Section  6.03, effective as of the Separation Effective Time, all Liabilities relating to, arising out of,  or resulting from health and welfare coverage or claims incurred prior to, on or after the  Separation Effective Time by each Lithium Participant under the Parent H&W Plans shall  cease to be Liabilities of the Parent Group and shall be assumed by the Lithium Group and  deemed to be Lithium Assumed Employee Liabilities. Without limiting the generality of  the foregoing, subject to Section 6.03, any and all costs, expenses or Liabilities relating to  participation by Lithium Participants in the Parent H&W Plans during the Benefits  Transition Period shall be reimbursed by the Company to the Parent Group in accordance  with the terms of the Transition Services Agreement. For the avoidance of doubt, subject  to Section 6.03, (a) all Liabilities arising under (i) any Parent H&W Plan (other than a  Parent Retiree H&W Plan) with respect to Lithium Participants or (ii) any Lithium H&W  Plan and (b) all Liabilities arising out of, relating to or resulting from the cessation of a  Lithium Participant’s participation in any Parent H&W Plan (other than a Parent Retiree  H&W Plan) and transfer to a Lithium H&W Plan as set forth herein (including any Actions  or claims by any Lithium Participants related thereto) shall, in each case, be Lithium  Assumed Employee Liabilities.  





 






  19  #90914078v33   Section 6.03. Post-Retirement Health and Welfare Benefits.  Notwithstanding  anything to the contrary in Section 6.01 or Section 6.02, (a) effective as of the applicable  Benefits Commencement Date, all Lithium Participants shall cease to participate in, and  earn benefit service under, any Parent Retiree H&W Plan (provided that any Lithium  Participant who has elected to receive benefits under any applicable Parent Retiree H&W  Plan in accordance with the terms of such plan prior to the applicable Benefits  Commencement Date shall continue to participate in, and receive benefits under, such  Parent Retiree H&W Plan in accordance with the terms of such plan) and (b) all Liabilities  under the Parent Retiree H&W Plans (whether relating to Parent Participants or Lithium  Participants) will be retained by Parent and will constitute Parent Retained Employee  Liabilities.  Section 6.04. Flexible Spending Account Plan Treatment.  Effective as of the  applicable Benefits Commencement Date, the Company shall establish or designate  flexible spending accounts for health and dependent care expenses (the “Lithium FSAs”).   To the extent applicable, the parties shall take all actions reasonably necessary or  appropriate so that the account balances (positive or negative) under the Parent FSAs of  each Lithium Participant who has elected to participate therein in the year in which the  applicable Benefits Commencement Date occurs shall be transferred, effective as of the  applicable Benefits Commencement Date, from the Parent FSAs to the corresponding  Lithium FSAs.  The Lithium FSAs shall assume responsibility as of the applicable Benefits  Commencement Date for all outstanding dependent care and health care claims under the  Parent FSAs of each Lithium Participant for the year in which the applicable Benefits  Commencement Date occurs and shall assume the rights of and agree to perform the  obligations of the analogous Parent FSA from and after the applicable Benefits  Commencement Date.  The parties shall cooperate in good faith to provide that the  contribution elections of each such Lithium Participant as in effect immediately before the  applicable Benefits Commencement Date remain in effect under the Lithium FSAs from  and after the applicable Benefits Commencement Date.    Section 6.05. Workers’ Compensation Liabilities.  Unless as otherwise expressly  provided in the Separation and Distribution Agreement, effective as of the Separation  Effective Time, all workers’ compensation Liabilities relating to, arising out of, or resulting  from any claim by any Lithium Participant that result from an accident or from an  occupational disease, regardless of whether incurred before, on or after the Separation  Date, shall be assumed by the Company and shall constitute Lithium Assumed Employee  Liabilities. The parties shall cooperate with respect to any notification to appropriate  governmental agencies of the disposition and the issuance of new, or the transfer of  existing, workers’ compensation insurance policies and contracts governing the handling  of claims.  Section 6.06. Vacation and Paid Time Off.  Effective as of the Separation  Effective Time, the applicable Lithium Group member shall recognize and assume all  Liabilities with respect to vacation, holiday, sick leave, paid time off, floating holidays,  personal days and other paid time off with respect to Lithium Participants accrued on or  prior to the Separation Effective Time, and the Company shall credit each such Lithium  Participant with such accrual; provided, that if any such vacation or paid time off is required  





 






  20  #90914078v33   under applicable Law to be paid out to the applicable Lithium Participant in connection  with the Distribution, such payment will be made by the Company as of the Distribution  Date, and the Company will credit such Lithium Participant with unpaid vacation time or  paid time off in respect thereof; it being understood that any amount of vacation or paid  time off required to be paid out in connection with the Distribution shall constitute Lithium  Assumed Employee Liabilities.  Section 6.07. COBRA and HIPAA.    (a) The Parent Group shall administer the Parent Group’s compliance with the  health care continuation coverage requirements of COBRA, the certificate of creditable  coverage requirements of HIPAA and the corresponding provisions of the Parent H&W  Plans with respect to Lithium Participants who incur a COBRA “qualifying event”  occurring on or before the applicable Benefits Commencement Date entitling them to  benefits under a Parent H&W Plan; provided that, for the avoidance of doubt, any  Liabilities related thereto shall constitute Lithium Assumed Employee Liabilities.    (b) The Company shall be solely responsible for all Liabilities incurred pursuant  to COBRA and for administering, at the Company’s expense, compliance with the health  care continuation coverage requirements of COBRA, the certificate of creditable coverage  requirements of HIPAA, and the corresponding provisions of the Lithium H&W Plans with  respect to Lithium Participants who incur a COBRA “qualifying event” that occurs at any  time after the applicable Benefits Commencement Date entitling them to benefits under a  Lithium Plan.    (c) The parties agree that neither the Separation, the Distribution nor any  assignment or transfer of the employment or services of any employee or individual  independent contractor as contemplated under this Agreement shall constitute a COBRA  “qualifying event” for any purpose of COBRA.   ARTICLE VII  INCENTIVE COMPENSATION   Section 7.01. Cash Incentive and Cash Bonus Plans.  Each Lithium Participant  participating in any Parent Plan that is a cash bonus or cash incentive plan with respect to  the 2018 performance year (each, a “Parent Bonus Plan”) will remain eligible to receive  a cash bonus in respect of the 2018 performance year (the “2018 Cash Bonuses”) in  accordance with the terms of such applicable Parent Bonus Plan.  Any 2018 Cash Bonuses  payable to Lithium Participants under such Parent Bonus Plans will be paid by the  Company on behalf of Parent in accordance with the terms of the applicable Parent Bonus  Plan (including terms relating to the timing of payment), which such amounts shall  constitute Lithium Assumed Employee Liabilities; provided that Parent will reimburse  Lithium for the portion of the 2018 Cash Bonuses paid by the Company to Lithium  Participants that relates to the portion of the 2018 performance period that elapsed prior to  the Separation Date, which such amount to be reimbursed by Parent will constitute a Parent  Retained Employee Liability.   





 






  21  #90914078v33   ARTICLE VIII  TREATMENT OF OUTSTANDING EQUITY AWARDS  Section 8.01. No Adjustments at the IPO.  Except as may otherwise be provided  pursuant to the express terms of any Parent RSU, Parent PRSU or Parent Option, no  adjustments shall be made to any Parent RSU, Parent PRSU or Parent Option in connection  with the execution of this Agreement or the consummation of the IPO.    Section 8.02. RSU and Banked PRSU Distribution Adjustments.  (a) Effective as of the Distribution Effective Time, each Parent RSU and Banked  Parent PRSU that is outstanding as of immediately prior to the Distribution Effective Time  and held by a Lithium Participant shall be converted into an award of restricted share units  with respect to Company Common Stock (each, a “Lithium RSU”).  The number of shares  of Company Common Stock subject to such Lithium RSU shall be determined by the  Parent Board (or an appropriate committee thereof) in a manner intended to preserve the  value of such Parent RSU or Banked Parent PRSU, as applicable, by taking into account  the relative values of the Parent Pre-Distribution Stock Value and the Company Stock  Value, with any fractional shares rounded down to the nearest whole number of shares.   Each such Lithium RSU shall be subject to the same terms and conditions (including  vesting and payment schedules) as applicable to the corresponding Parent RSU or Banked  Parent PRSU, as applicable, as of immediately prior to the Distribution Effective Time.  (b) Effective as of the Distribution Effective Time, each Parent RSU and Banked  Parent PRSU that, in each case, (x) was granted prior to January 1, 2019, (y) is outstanding  as of immediately prior to the Distribution Effective Time and (z) is held by a Parent  Participant who is not a Former Parent Employee shall be converted into both an Adjusted  Parent RSU or Adjusted Banked Parent PRSU, as applicable, and a Lithium RSU, and each  such Adjusted Parent RSU, Adjusted Banked Parent PRSU and Lithium RSU shall be  subject to the same terms and conditions (including vesting and payment schedules) as  were applicable to the corresponding Parent RSU or Banked Parent PRSU as of  immediately prior to the Distribution Effective Time; provided that from and after the  Distribution Effective Time:   (i) the number of shares of Parent Common Stock subject to such  Adjusted Parent RSU or Adjusted Banked Parent PRSU, as applicable, shall be equal to  the number of shares of Parent Common Stock subject to the corresponding Parent RSU  or Banked Parent PRSU, as applicable, immediately prior to the Distribution Effective  Time; and  (ii) the number of shares of Company Common Stock subject to such  Lithium RSU shall be determined by the Parent Board (or an appropriate committee  thereof) in a manner intended, in combination with such Adjusted Parent RSU or Adjusted  Banked Parent PRSU, as applicable, to preserve the value of such Parent RSU or Banked  Parent PRSU, as applicable, by taking into account the Distribution Ratio relative to the  number of Parent RSUs or Banked Parent PRSUs, as applicable, with any fractional shares  rounded down to the nearest whole number of shares.  





 






  22  #90914078v33   (c) Effective as of the Distribution Effective Time, each Parent RSU and Banked  Parent PRSU that, in each case, (x) was granted on or after January 1, 2019, (y) is  outstanding as of immediately prior to the Distribution Effective Time and (z) held by a  Parent Participant who is not a Former Parent Employee shall be converted into an  Adjusted Parent RSU or Adjusted Banked Parent PRSU, as applicable.  The number of  shares of Parent Common Stock subject to such Adjusted Parent RSU or Adjusted Banked  Parent PRSU, as applicable, shall be determined by the Parent Board (or an appropriate  committee thereof)  in a manner intended to preserve the value of such Parent RSU or  Banked Parent PRSU, as applicable, by taking into account the relative values of the Parent  Pre-Distribution Stock Value and the Adjusted Parent Post-Distribution Stock Value, with  any fractional shares rounded down to the nearest whole number of shares.  Each such  Adjusted Parent RSU or Adjusted Banked Parent PRSU, as applicable, shall be subject to  the same terms and conditions (including vesting and payment schedules) as applicable to  the corresponding Parent RSU or Banked Parent PRSU, as applicable, as of immediately  prior to the Distribution Effective Time.  (d) Effective as of the Distribution Effective Time, each Parent RSU and Banked  Parent PRSU that is outstanding as of immediately prior to the Distribution Effective Time  and held by a Former Parent Employee shall be converted into an Adjusted Parent RSU or  Adjusted Banked Parent PRSU, as applicable.  The number of shares of Parent Common  Stock subject to such Adjusted Parent RSU or Adjusted Banked Parent PRSU, as  applicable, shall be determined by the Parent Board (or an appropriate committee thereof)  in a manner intended to preserve the value of such Parent RSU or Banked Parent PRSU,  as applicable, by taking into account the relative values of the Parent Pre-Distribution Stock  Value and the Adjusted Parent Post-Distribution Stock Value, with any fractional shares  rounded down to the nearest whole number of shares.  Each such Adjusted Parent RSU or  Adjusted Banked Parent PRSU, as applicable, shall be subject to the same terms and  conditions (including vesting and payment schedules) as applicable to the corresponding  Parent RSU or Banked Parent PRSU, as applicable, as of immediately prior to the  Distribution Effective Time.  Section 8.03. Unbanked PRSU Distribution Adjustments.    (a) Effective as of the Distribution Effective Time, each Unbanked Parent PRSU  that is outstanding as of immediately prior to the Distribution Effective Time and held by  a Lithium Participant shall be converted into a Lithium RSU.  The number of shares of  Company Common Stock subject to such Lithium RSU shall be determined by the Parent  Board (or an appropriate committee thereof) in a manner intended to preserve the target  value of such Unbanked Parent PRSU by taking into account the relative values of the  Parent Pre-Distribution Stock Value and the Company Stock Value, with any fractional  shares rounded down to the nearest whole number of shares.  Each such Lithium RSU shall  be subject to the same terms and conditions (including vesting and payment schedules) as  applicable to the corresponding Unbanked Parent PRSU as of immediately prior to the  Distribution Effective Time; provided, that each such Lithium RSU shall not be subject to  any performance-based vesting conditions and shall vest solely based on the continuous  service of the Lithium Participant with the Lithium Group.  





 






  23  #90914078v33   (b) Effective as of the Distribution Effective Time, each Unbanked Parent PRSU  granted prior to January 1, 2019 that is outstanding as of immediately prior to the  Distribution Effective Time and held by a Parent Participant who is not a Former Parent  Employee shall be converted into both an Adjusted Unbanked Parent PRSU and a Lithium  PRSU, and each such Adjusted Unbanked Parent PRSU and Lithium PRSU shall be subject  to the same terms and conditions (including vesting and payment schedules and  performance-based vesting conditions) as were applicable to the corresponding Unbanked  Parent PRSU as of immediately prior to the Distribution Effective Time; provided that  from and after the Distribution Effective Time:   (i) the target number of shares of Parent Common Stock subject to such  Adjusted Unbanked Parent PRSU shall be equal to the target number of shares of Parent  Common Stock subject to the corresponding Unbanked Parent PRSU immediately prior to  the Distribution Effective Time;  (ii) the number of shares of Company Common Stock subject to such  Lithium PRSU shall be determined by the Parent Board (or an appropriate committee  thereof) in a manner intended, in combination with such Adjusted Unbanked Parent PRSU,  to preserve the target value of such Unbanked Parent PRSU by taking into account the  Distribution Ratio relative to the number of Unbanked Parent PRSUs, with any fractional  shares rounded down to the nearest whole number of shares; and  (iii) the performance-based vesting conditions applicable to the Adjusted  Unbanked Parent PRSU and the Lithium PRSUs may be equitably adjusted by the Parent  Board (or an appropriate committee thereof) in accordance with their terms to reflect the  effect of the Distribution.   (c) Effective as of the Distribution Effective Time, each Unbanked Parent PRSU  granted on or after January 1, 2019 that is outstanding as of immediately prior to the  Distribution Effective Time and held by a Parent Participant who is not a Former Parent  Employee shall be converted into an Adjusted Unbanked Parent PRSU.  The number of  shares of Parent Common Stock subject to such Adjusted Unbanked Parent PRSU shall be  determined by the Parent Board (or an appropriate committee thereof) in a manner intended  to preserve the target value of such Unbanked Parent PRSU by taking into account the  relative values of the Parent Pre-Distribution Stock Value and the Adjusted Parent Post- Distribution Stock Value, with any fractional shares rounded down to the nearest whole  number of shares.  Each such Adjusted Unbanked Parent PRSU shall be subject to the same  terms and conditions (including vesting and payment schedules and performance-based  vesting conditions) as applicable to the corresponding Unbanked Parent PRSU as of  immediately prior to the Distribution Effective Time; provided that the performance-based  vesting conditions applicable to such Adjusted Unbanked Parent PRSUs may be equitably  adjusted by the Parent Board (or an appropriate committee thereof) in accordance with  their terms to reflect the effect of the Distribution.  (d) Effective as of the Distribution Effective Time, each Unbanked Parent PRSU  that is outstanding as of immediately prior to the Distribution Effective Time and held by  a Former Parent Employee shall be converted into an Adjusted Unbanked Parent PRSU.   





 






  24  #90914078v33   The number of shares of Parent Common Stock subject to such Adjusted Unbanked Parent  PRSU shall be determined by the Parent Board (or an appropriate committee thereof) in a  manner intended to preserve the target value of such Unbanked Parent PRSU by taking  into account the relative values of the Parent Pre-Distribution Stock Value and the Adjusted  Parent Post-Distribution Stock Value, with any fractional shares rounded down to the  nearest whole number of shares.  Each such Adjusted Unbanked Parent PRSU shall be  subject to the same terms and conditions (including vesting and payment schedules and  performance-based vesting conditions) as applicable to the corresponding Unbanked  Parent PRSU as of immediately prior to the Distribution Effective Time; provided that the  performance-based vesting conditions applicable to such Adjusted Unbanked Parent  PRSUs may be equitably adjusted by the Parent Board (or an appropriate committee  thereof) in accordance with their terms to reflect the effect of the Distribution.  Section 8.04. Stock Option Distribution Adjustments.   (a) Effective as of the Distribution Effective Time, each Parent Option, whether  vested or unvested, that is outstanding as of immediately prior to the Distribution Effective  Time and held by a Lithium Participant shall be converted into an option to acquire  Company Common Stock (each, a “Lithium Option”) and shall be subject to the same  terms and conditions (including vesting and expiration schedules) as applicable to the  corresponding Parent Option as of immediately prior to the Distribution Effective Time;  provided that from and after the Distribution Effective Time, the number of shares of  Company Common Stock subject to, and the exercise price per share of, such Lithium  Option shall be determined by the Parent Board (or an appropriate committee thereof) in a  manner intended to preserve the value of such Parent Option by taking into account (A)  the exercise price per share of such Parent Option and (B) the relative values of the Parent  Pre-Distribution Stock Value and the Company Stock Value, with any fractional shares  rounded down to the nearest whole number of shares and any exercise price rounded up to  the nearest whole cent.  (b) Effective as of the Distribution Effective Time, each Parent Option, whether  vested or unvested, that is outstanding as of immediately prior to the Distribution Effective  Time and held by a Parent Participant (including, for the avoidance of doubt, any Former  Parent Employee) shall be converted into an Adjusted Parent Option and shall be subject  to the same terms and conditions (including vesting and expiration schedules) as applicable  to the corresponding Parent Option as of immediately prior to the Distribution Effective  Time; provided that from and after the Distribution Effective Time, the number of shares  of Parent Common Stock subject to, and the exercise price per share of, such Adjusted  Parent Option shall be determined by the Parent Board (or an appropriate committee  thereof) in a manner intended to preserve the value of such Parent Option by taking into  account (A) the exercise price per share of such Parent Option and (B) the relative values  of the Parent Pre-Distribution Stock Value and the Adjusted Parent Post-Distribution Stock  Value, with any fractional shares rounded down to the nearest whole number of shares and  any exercise price rounded up to the nearest whole cent.  (c) Notwithstanding anything to the contrary in this Section 8.04, the exercise  price, the number of shares of Parent Common Stock or Company Common Stock, as  





 






  25  #90914078v33   applicable, and the terms and conditions of exercise applicable to any Adjusted Parent  Option or Lithium Option, as the case may be, shall be determined in a manner consistent  with the requirements of Section 409A of the Code.   Section 8.05. Equity Award Adjustment Illustrations.  For an illustration of the  transactions contemplated by Section 8.02, Section 8.03 and Section 8.04, see Exhibit A  hereto. For the avoidance of doubt, Exhibit A represents an illustration only, and the  principles set forth in Section 8.02, Section 8.03 and Section 8.04 shall govern the actual  treatment of outstanding Parent RSUs, Banked Parent PRSUs, Unbanked Parent PRSUs  and Parent Options.  Section 8.06. Miscellaneous Terms and Actions; Tax Reporting and Withholding.    (a) Effective as of the Separation Effective Time, the Company shall adopt an  equity incentive compensation plan for the benefit of eligible participants (the “Lithium  Equity Plan”). Prior to the Distribution Effective Time, each of Parent and the Company  shall take any actions necessary to give effect to the transactions contemplated by this  Article VIII, including, in the case of the Company, the reservation, issuance and listing of  shares of Company Common Stock as is necessary to effectuate the transactions  contemplated by this Article VIII. From and after the Distribution Effective Time, (i) the  Company shall retain the Lithium Equity Plan, and all Liabilities thereunder shall constitute  Lithium Assumed Employee Liabilities, and (ii) Parent shall retain the Parent Equity Plan,  and all Liabilities thereunder shall constitute Parent Retained Employee Liabilities. From  and after the Distribution Effective Time, all Adjusted Parent Awards, regardless of by  whom held, shall be granted under and subject to the terms of the Parent Equity Plan and  shall be settled by Parent, and all Lithium Awards, regardless of by whom held, shall be  granted under and subject to the terms of the Lithium Equity Plan and shall be settled by  the Company. Notwithstanding anything to the contrary in this Agreement (including  Section 2.02 or Section 11.04), (i) each Parent Participant shall have third-party beneficiary  rights with respect to his or her Parent Awards that are converted into Lithium Awards  pursuant to this Article VIII, including the right to bring any Action against the Company  relating to or arising from such Lithium Awards and, other than pursuant to clause (ii)  below, neither Parent nor any other member of the Parent Group shall have any right or  remedy with respect to any Parent Participant’s Parent Awards that are converted into  Lithium Awards pursuant to this Article VIII, and (ii) any and all Actions brought by or on  behalf of any Parent Participant, Lithium Participant (or any dependent or beneficiary  thereof) or any other Person in respect of or relating to any Parent Awards that are  converted into Lithium Awards pursuant to this Article VIII shall be the sole obligation  and responsibility of the Company, and the Company shall indemnify, defend and hold the  Parent Group harmless from and against any and all such Actions and any Liabilities  related thereto.   (b) From and after the Distribution Effective Time, for purposes of any Parent  Participant’s Parent Awards converted into Lithium Awards pursuant to this Article VIII,  (i) a Parent Participant’s employment with or service to the Parent Group shall be treated  as employment with and service to the Lithium Group and (ii) any reference to “cause”,  “good reason”, “disability”, “willful” or other similar terms applicable to such Lithium  





 






  26  #90914078v33   Awards shall be deemed to refer to the definitions of “cause”, “good reason”, “disability”,  “willful” or other similar terms set forth in the Parent Equity Plan. From and after the  Distribution Effective Time, (x) any reference to a “change in control,” “change of control”  or similar term applicable to any Adjusted Parent Award contained in any applicable award  agreement, employment or services agreement or the Parent Equity Plan shall be deemed  to refer to a “change in control,” “change of control” or similar term as defined in such  award agreement, employment or services agreement or the Parent Equity Plan (a “Parent  Change in Control”) and (y) any reference to a “change in control,” “change of control”  or similar term applicable to any Lithium Award contained in any applicable award  agreement, employment or services agreement or the Lithium Equity Plan shall be deemed  to refer to a “change in control,” “change of control” or similar term as defined in the  Lithium Equity Plan (a “Lithium Change in Control”); provided, however, with respect  to any Parent Awards held by Parent Participants that are converted into Lithium Awards  pursuant to this Article VIII, a Parent Change in Control shall also be treated as a Lithium  Change in Control. For the avoidance of doubt, the Distribution shall not, in and of itself,  be treated as either a Parent Change in Control or a Lithium Change in Control. Neither  the Separation, the Distribution nor any assignment, transfer or continuation of the  employment of employees as contemplated by Article III shall be deemed a termination of  employment or service of any Lithium Participant or Parent Participant or a Parent Change  in Control or Lithium Change in Control for purposes of the Parent Equity Plan or the  Lithium Equity Plan, or any Parent Award or Lithium Award outstanding thereunder,  respectively, and, without limiting the generality of the foregoing, to the extent Parent  determines it necessary or desirable, each Parent RSU, Parent PRSU or Parent Option, as  the case may be, shall be amended to expressly clarify the same.  (c) Unless otherwise required by applicable Law, (i) the applicable member of  the Lithium Group shall be responsible for all applicable income, payroll, employment and  other similar tax withholding, remittance and reporting obligations in respect of Lithium  Participants relating to any Lithium Awards and (ii) the applicable member of the Parent  Group shall be responsible for all applicable income, payroll, employment and other  similar tax withholding, remittance and reporting obligations in respect of Parent  Participants relating to any Adjusted Parent Awards or Lithium Awards. The parties shall  facilitate performance by the other party of its obligations hereunder by promptly remitting  amounts withheld in respect of any Adjusted Parent Awards or Lithium Awards, as  applicable, directly to the applicable Governmental Authority on such other party’s behalf  or to the other Party for remittance to such Governmental Authority. The parties will  cooperate and communicate with each other and with third-party providers to effectuate  withholding and remittance of taxes, as well as required tax reporting, in a timely, efficient  and appropriate manner.  (d) The Company shall be responsible for the settlement of cash dividend  equivalents on any Lithium Awards held by a Lithium Participant, and Parent shall be  responsible for the settlement of cash dividend equivalents on any Adjusted Parent Awards  or Lithium Awards held by a Parent Participant or Former Parent Employee; provided that,  with respect to Lithium Awards held by Parent Participants, prior to the date any such  settlement is due, the Company shall pay Parent in cash amounts required to settle any  dividend equivalents accrued following the Distribution Effective Time.   





 






  27  #90914078v33   (e) The Company shall prepare and file with the SEC a registration statement on  an appropriate form with respect to the shares of Company Common Stock subject to the  Parent Awards converted into Lithium Awards pursuant to this Article VIII and shall use  its reasonable best efforts to have such registration statement declared effective as soon as  practicable following the Distribution Effective Time and to maintain the effectiveness of  such registration statement covering such Lithium Awards (and to maintain the current  status of the prospectus contained therein) for so long as any Lithium Awards remain  outstanding.    (f) Prior to the Distribution Effective Time, each party shall take all such steps  as may be required to cause any dispositions of Parent Common Stock (including Parent  Awards or any other derivative securities with respect to Parent Common Stock) or  acquisitions of Company Common Stock (including Lithium Awards or any other  derivative securities with respect to Company Common Stock) resulting from the  Distribution or the transactions contemplated by this Agreement or the Separation and  Distribution Agreement by each individual who is subject to the reporting requirements of  Section 16(a) of the Exchange Act with respect to Parent or who are or will become subject  to such reporting requirements with respect to the Company to be exempt under Rule 16b- 3 promulgated under the Exchange Act. With respect to those individuals, if any, who,  subsequent to the Distribution Effective Time, are or become subject to the reporting  requirements under Section 16(a) of the Exchange Act, as applicable, the Company shall  administer any Parent Award converted into a Lithium Award pursuant to this Article VIII  in a manner that complies with Rule 16b-3 promulgated under the Exchange Act to the  extent such converted Parent Award complied with such rule prior to the Distribution  Effective Time.  (g) From and after the Distribution Effective Time, each of Parent and the  Company shall cooperate in good faith to facilitate the orderly administration of the  Lithium Awards held by Parent Participants, including, without limitation, the sharing of  information relating to a Parent Participant’s employment or service status with the Parent  Group, as well as other information relating to the vesting and forfeiture of Lithium  Awards, tax withholding and reporting and compliance with applicable Law.   (h) Notwithstanding anything to the contrary herein, with respect to any Delayed  Transferred Employees whose employment is not transferred to the Lithium Group on or  prior to the Distribution Effective Time, any Parent Awards held by such Delayed  Transferred Employees shall be adjusted as of the Distribution Effective Time in the  manner set forth in Sections 8.02(b), 8.02(c), 8.03(b), 8.03(c) and 8.04(b), as applicable,  and such awards shall not be further adjusted upon the date such Delayed Transferred  Employee’s employment is transferred to the Lithium Group.  (i) Without limiting the generality of Section 8.04(c), and notwithstanding  anything to the contrary herein, all adjustments to Parent Awards contemplated by this  Article VIII shall be made in accordance with the terms and conditions of the Parent Equity  Plan (including, without limitation, Section 4.02 of the Parent Equity Plan) and, to the  extent applicable, in a manner consistent with the requirements of Section 409A of the  Code.  





 






  28  #90914078v33   ARTICLE IX  PERSONNEL RECORDS; PAYROLL AND TAX WITHHOLDING  Section 9.01. Personnel Records.  To the extent permitted by applicable Law,  each of the Lithium Group and the Parent Group shall be permitted by the other to access  and retain copies of such records, data and other personnel-related information in any form  (“Personnel Records”) as may be necessary or appropriate to carry out their respective  obligations under applicable Law, the Separation and Distribution Agreement or any of the  Ancillary Agreements, and for the purposes of administering their respective employee  benefit plans and policies.  All Personnel Records shall be accessed, retained, held, used,  copied and transmitted in accordance with all applicable Laws, policies and agreements  between the parties hereto.  Section 9.02. Payroll; Tax Reporting and Withholding.   (a) Subject to the obligations of the parties as set forth in the Transition Services  Agreement, effective as of no later than the Separation Date, (i)  the members of the  Lithium Group shall be solely responsible for providing payroll services (including for any  payroll period already in progress) to the Lithium Employees and for any Liabilities with  respect to garnishments of the salary and wages thereof and (ii) the members of the Parent  Group shall be solely responsible for providing payroll services (including for any payroll  period already in progress) to the Parent Employees and for any Liabilities with respect to  garnishments of the salary and wages thereof.   (b) To the extent consistent with the terms of the Tax Matters Agreement, the  party that is responsible for making a payment hereunder shall be responsible for  (i)  making the appropriate withholdings, if any, attributable to such payments and  (ii)  preparing and filing all related required forms and returns with the appropriate  Governmental Authority.    (c) With respect to Lithium Employees, the parties shall (i) treat the Company  (or the applicable member of the Lithium Group) as a “successor employer” and Parent (or  the applicable member of the Parent Group) as a “predecessor,” within the meaning of  Sections 3121(a)(1) and 3306(b)(1) of the Code, for purposes of taxes imposed under the  U.S. Federal Unemployment Tax Act or the U.S. Federal Insurance Contributions Act, and  (ii)  cooperate and use reasonable best efforts to implement the alternate procedure  described in Section 5 of Revenue Procedure 2004-53.  ARTICLE X  NON-U.S. EMPLOYEES AND EMPLOYEE PLANS  Section 10.01. Special Provisions for Employees and Employee Plans Outside of  the United States.    (a) From and after the date hereof, to the extent not addressed in this Agreement,  the parties shall reasonably cooperate in good faith to effect the provisions of this  Agreement with respect to employees and employee-, compensation- and benefits-related  





 






  29  #90914078v33   matters outside of the United States (including Employee Plans covering non-U.S. Parent  Participants and Non-U.S. Lithium Participants), which in all cases shall be consistent with  the general approach and philosophy regarding the allocation of Assets and Liabilities (as  expressly set forth in the recitals to this Agreement).   (b) Without limiting the generality of Section 3.03(a), to the extent required by  applicable Law or the terms of any Lithium CBA or similar employee representative  agreement, Lithium or a member of the Lithium Group, as applicable, shall become a party  to the applicable collective bargaining, works council, or similar arrangements with respect  to Lithium Employees or Lithium Contractor located outside of the United States and shall  comply with all obligations thereunder from and after the Separation Effective Time.  ARTICLE XI  GENERAL AND ADMINISTRATIVE  Section 11.01. Sharing of Participant Information.  To the maximum extent  permitted under applicable Law, Parent and the Company shall share, and shall cause each  member of its respective Group to reasonably cooperate with the other party hereto to  (i) share, with each other and their respective agents and vendors all participant information  reasonably necessary for the efficient and accurate administration of each of the Parent  Plans and the Lithium Plans (including notifications regarding the termination of  employment or service of any Lithium Participant or Parent Participant to the extent  relevant to the administration of a Parent Plan or Lithium Plan, as the case may be), (ii)  facilitate the transactions and activities contemplated by this Agreement and (iii) resolve  any and all employment-related claims regarding Lithium Participants.  The Company and  its respective authorized agents shall, subject to applicable Laws, be given reasonable and  timely access to, and may make copies of, all information relating to the subjects of this  Agreement in the custody of the Parent Group, to the extent reasonably necessary for such  administration.  Parent Group members shall be entitled to retain copies of all Company  Books and Records relating to the subjects of this Agreement in the custody of the Parent  Group, subject to the terms of the Separation and Distribution Agreement and applicable  Law.  Section 11.02. Cooperation.  Following the date of this Agreement, the parties  shall, and shall cause their respective Subsidiaries to, to cooperate in good faith with  respect to any employee compensation or benefits matters that either party reasonably  determines require the cooperation of the other party in order to accomplish the objectives  of this Agreement (including, without limitation, relating to any audits by any  Governmental Authorities).  Section 11.03. Notices of Certain Events.  Each of the Company and Parent shall  promptly notify and provide copies to the other of:  (a) written notice from any Person  alleging that the approval or consent of such Person is or may be required in connection  with the transactions contemplated by this Agreement; (b) any written notice or other  communication from any Governmental Authority in connection with the transactions  contemplated by this Agreement or the Separation and Distribution Agreement; and (c) any  actions, suits, claims, investigations or proceedings commenced or, to its knowledge,  





 






  30  #90914078v33   threatened against, relating to or involving or otherwise affecting the Lithium Group or the  Parent Group, as the case may be, that relate to the consummation of the transactions  contemplated by this Agreement or the Separation and Distribution Agreement; provided  that the delivery of any notice pursuant to this Section 11.03 shall not affect the remedies  available hereunder to the party receiving such notice.  Section 11.04. No Third Party Beneficiaries.  Notwithstanding anything to the  contrary herein, nothing in this Agreement shall:  (a) create any obligation on the part of  any member of the Lithium Group or any member of the Parent Group to retain the  employment or services of any current or former employee, director, independent  contractor or other service provider; (b) be construed to create any right, or accelerate  entitlement, to any compensation or benefit whatsoever on the part of any future, present,  or former employee or service provider of any member of the Parent Group or the Lithium  Group (or any beneficiary or dependent thereof) under this Agreement, the Separation and  Distribution Agreement, any Parent Plan or Lithium Plan or otherwise; (c) preclude the  Company or any Lithium Group member (or, in each case, any successor thereto), at any  time after the Separation Effective Time, from amending, merging, modifying,  terminating, eliminating, reducing, or otherwise altering in any respect any Lithium Plan,  any benefit under any Lithium Plan or any trust, insurance policy, or funding vehicle  related to any Lithium Plan (in each case in accordance with the terms of the applicable  arrangement); (d) preclude Parent or any Parent Group member (or, in each case, any  successor thereto), at any time after the Separation Effective Time, from amending,  merging, modifying, terminating, eliminating, reducing, or otherwise altering in any  respect any Parent Plan, any benefit under any Parent Plan or any trust, insurance policy,  or funding vehicle related to any Parent Plan (in each case in accordance with the terms of  the applicable arrangement); or (e) except as otherwise expressly provided in Section  8.06(a), confer any rights or remedies (including any third-party beneficiary rights) on any  current or former employee or service provider of any member of the Parent Group or the  Lithium Group or any beneficiary or dependent thereof or any other Person.   Section 11.05. Fiduciary Matters.  Parent and the Company each acknowledge that  actions required to be taken pursuant to this Agreement may be subject to fiduciary duties  or standards of conduct under ERISA or other applicable Law, and no party shall be  deemed to be in violation of this Agreement if it fails to comply with any provisions hereof  based upon its good faith determination (as supported by advice from counsel experienced  in such matters) that to do so would violate such a fiduciary duty or standard.  Each party  shall be responsible for taking such actions as are deemed necessary and appropriate to  comply with its own fiduciary responsibilities and shall fully release and indemnify the  other party for any Liabilities caused by the failure to satisfy any such responsibility.  Section 11.06. Consent of Third Parties.  If any provision of this Agreement is  dependent on the consent of any third party (such as a vendor or Governmental Authority),  the parties shall cooperate in good faith and use reasonable best efforts obtain such consent,  and if such consent is not obtained, to implement the applicable provisions of this  Agreement to the full extent practicable.  If any provision of this Agreement cannot be  implemented due to the failure of such third party to consent, the parties shall negotiate in  good faith to implement the provision in a mutually satisfactory manner.  A party’s  





 






  31  #90914078v33   obligation to use its “reasonable best efforts” shall not require such party to take any action  to the extent it would reasonably be expected to (i) jeopardize, or result in the loss or waiver  of, any attorney-client or other legal privilege, (ii)  contravene any applicable Law or  fiduciary duty, (iii) result in the loss of protection of any Intellectual Property or other  proprietary information or (iv) incur any non-routine or unreasonable cost or expense.    Section 11.07. Sponsored Employees.  The parties shall, and shall cause their  respective Group members, to cooperate in good faith with each other and the applicable  Governmental Authorities with respect to the process of obtaining work authorization for  each Sponsored Employee to work with the Company or a Lithium Group member,  including but not limited to, petitioning the applicable Governmental Authorities for the  transfer of each Sponsored Employee’s (as well as any spouse or dependent thereof, as  applicable) visa or work permit, or the grant of a new visa or work permit, to any Lithium  Group member.  Any costs or expenses incurred with the foregoing shall constitute Lithium  Assumed Employee Liabilities.  In the event that it is not legally permissible for a  Sponsored Employee to continue work with the Lithium Group from and after the  Separation Effective Time, the parties shall reasonably cooperate to provide for the services  of such Sponsored Employee to be made available exclusively to the Lithium Group under  an employee secondment or similar arrangement, which any costs incurred by the Parent  Group (including those relating to compensation and benefits in respect of such Sponsored  Employee) shall constitute Lithium Assumed Employee Liabilities.  ARTICLE XII  DISPUTE RESOLUTION  Section 12.01. General.  The provisions of Section 9.03 of the Separation and  Distribution Agreement shall apply, mutatis mutandis, to all disputes, controversies, or  claims (whether arising in contract, tort, or otherwise) that may arise out of or relate to, or  arise under or in connection with, this Agreement or the transactions contemplated hereby.  ARTICLE XIII  MISCELLANEOUS  Section 13.01. General.  The provisions of Article IX of the Separation and  Distribution Agreement (other than Section 9.10 of the Separation and Distribution  Agreement) are hereby incorporated by reference into and deemed part of this Agreement  and shall apply, mutatis mutandis, as if fully set forth in this Agreement.   Section 13.02. Entire Agreement; References.  This Agreement shall supersede and  replace the Prior Agreement in its entirety. For the avoidance of doubt, any references to  the “Employee Matters Agreement” in the Separation and Distribution Agreement, the  Ancillary Agreements, the Lithium Equity Plan or any other agreement or arrangement  entered into by Parent or the Company shall be deemed references to this Agreement.    [Signature Page Follows] 





 






[Signature Page to Amended and Restated Employee Matters Agreement]  #90914078v33  IN WITNESS WHEREOF, the parties have caused this Agreement to be executed  by their duly authorized representatives as of the date first above written.  FMC CORPORATION  By:       /s/ Pierre Brondeau                         Name: Pierre Brondeau  Title: Chief Executive Officer  LIVENT CORPORATION  By:      /s/ Paul Graves                                      Name: Paul Graves  Title: Chief Executive Officer and  President  





 






  Schedule I-1  #90914078v33   SCHEDULE I  Lithium CBAs    Collective Bargaining Agreement by and between Minera del Altiplano S.A. and the  Mining Workers’ Association of Argentina    





 






  Exhibit A-1  #90914078v33   Exhibit A  Illustrations of Outstanding Equity Award Treatment