EXHIBIT 10.4
EMPLOYEE BENEFIT MATTERS AGREEMENT
This EMPLOYEE BENEFIT MATTERS AGREEMENT (this "Agreement") is dated as of July 23, 2002, by and between IMPCO Technologies, Inc., a Delaware corporation ("IMPCO") and Quantum Fuel Systems Technologies Worldwide, Inc., a Delaware corporation ("Quantum").
WHEREAS, in accordance with that certain Contribution and Distribution Agreement, dated as of July 23, 2002, between IMPCO and Quantum (the "Distribution Agreement"), IMPCO is contributing to Quantum certain assets relating to its Automotive OEM Business as part of a restructuring of IMPCO to separate from IMPCO all of the Automotive OEM Business;
WHEREAS, in order to further effect the foregoing separation, the Board of Directors of IMPCO has determined that it is appropriate, desirable and in the best interests of IMPCO and its businesses as well as of the holders of shares of common stock, par value $0.001 per share, of IMPCO (the "IMPCO Common Stock"), for IMPCO to distribute to the holders of the IMPCO Common Stock all the outstanding shares of common stock, par value $0.001 per share, of Quantum (the "Quantum Common Stock") as set forth in the Distribution Agreement; and
WHEREAS, IMPCO and Quantum have determined that it is necessary and desirable to allocate and assign responsibility for certain employee benefit matters in respect of such entities on and after the Effective Time (as defined herein).
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, IMPCO and Quantum agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Capitalized terms used in this Agreement and not defined herein shall have the meanings that such terms have in the Distribution Agreement. As used in this Agreement, the following terms shall have the following meanings:
"Action" shall mean any action, suit, arbitration, inquiry, proceeding or investigation by or before any court, any governmental or other regulatory or administrative agency, body or commission or any arbitration tribunal.
"Affiliate" shall mean, when used with respect to a Person, another Person that controls, is controlled by, or is under common control (within the meaning of Section 414(b), (c), (m) or (o) of the Code) with the Person specified.
"Ancillary Agreements" shall mean all of the written agreements, instruments, assignments or other written arrangements (other than this Agreement and the Distribution Agreement) entered into in connection with the transactions contemplated by this Agreement and the Distribution Agreement.
"Assets" shall have the meaning set forth in Section 1.1(j) of the Distribution Agreement.
"Board of Directors" shall mean, when used with respect to a specified corporation, the board of directors of the corporation so specified.
"Business Entity" shall mean any corporation, partnership, limited liability company or other entity which may legally hold title to Assets.
"COBRA" shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the regulations promulgated thereunder, including any successor legislation.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder, including any successor legislation.
"Distribution" shall mean the distribution on the Distribution Date to holders of record of shares of IMPCO Common Stock as of the Distribution Record Date of the Quantum Common Stock owned by IMPCO on the basis of one share of Quantum Common Stock for every outstanding share of IMPCO Common Stock.
"Distribution Agreement" shall have the meaning set forth in the recitals hereto.
"Distribution Date" shall mean July 23, 2002.
"Distribution Record Date" shall mean July 5, 2002.
"Effective Time" shall mean 11:59 p.m. Eastern Time, on the Distribution Date.
"Employee Benefit Litigation Liability" shall mean, with respect to a Business Entity a liability relating to a controversy, dispute or claim arising out of, in connection with or in relation to the interpretation, performance, nonperformance, validity or breach of an Employee Benefit Plan of such Business Entity or otherwise arising out of, or in any way related to such Employee Benefit Plan, including, without limitation, any claim based on contract, tort, statute or constitution.
"Employee Benefit Plans" shall mean, with respect to a Business Entity, all "employee benefit plans" (within the meaning of Section 3(3) of ERISA), "multiemployer plans" (within the meaning of Section 3(37) of ERISA), retirement, pension, savings, profit-sharing, welfare, stock purchase, stock option, equity-based, severance, employment, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation, worker's compensation and all other employee benefit plans, agreements, programs, policies or other arrangements (including any funding mechanisms therefor), whether or not subject to ERISA, whether formal or informal, oral or written, legally binding or not, under which (i) any past, present or future employee of the Business Entity or its Subsidiaries has a right to benefits and (ii) the Business Entity or its Subsidiaries has (or could have) any liabilities.
"Employee Benefit Records" shall mean all agreements, documents, books, records or files relating to the Employee Benefit Plans of IMPCO and Quantum.
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"Employee Transfer Date" shall mean July 23, 2002.
"Employee Welfare Benefit Plans" shall mean, with respect to a Business Entity, all Employee Benefit Plans that are "welfare plans" within the meaning of Section 3(1) of ERISA.
"Employer Stock" shall mean, after the Distribution Date, Quantum Common Stock credited to the Non-Employer Stock Accounts of a Quantum Employee and IMPCO Common Stock credited to the Non-Employer Stock Account of an IMPCO Retained Employee in the respective savings plan in which such employee participates, pursuant to Section 2.4.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder, including any successor legislation.
"Former Quantum Employee" shall mean any person employed at any time by the IMPCO Group or the Quantum Group primarily in connection with the Quantum Business and who is, at the Employee Transfer Date, no longer employed by the IMPCO Group or the Quantum Group.
"IMPCO" shall have the meaning set forth in the recitals hereto.
"IMPCO Common Stock" shall have the meaning set forth in the recitals hereto.
"IMPCO Deferred Compensation Plan" shall mean the IMPCO Technologies, Inc. Deferred Compensation Plan, as in effect from time to time.
"IMPCO Employees" shall mean persons who, at any time prior to the Employee Transfer Date, were employed by the IMPCO Group.
"IMPCO Flexible Benefits Plan" shall mean the IMPCO Technologies, Inc. Premium Only Plan, a "cafeteria plan" within the meaning of Section 125 of the Code.
"IMPCO Group" shall mean IMPCO (other than any member of the Quantum Group) and each person that is a Subsidiary of IMPCO immediately prior to the Employee Transfer Date.
"IMPCO Nonqualified Plans" shall have the meaning set forth in Section 3.1 of this Agreement.
"IMPCO Retained Employees" shall mean persons who, immediately after the Employee Transfer Date, are employed by the IMPCO Group (including persons who would otherwise be deemed to be IMPCO Retained Employees who are absent from work by reason of disability or leave of absence and inactive employees treated as such by agreement therewith) but shall not include any persons who are or become Quantum Employees on or after such date.
"IMPCO Savings Plan" shall mean the IMPCO Technologies, Inc. Investment and Tax Savings Plan, as in effect from time to time.
"IMPCO Stock Option" shall mean any option to purchase IMPCO Common Stock.
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"IMPCO Stock Option Plans" shall mean the 1989 Incentive Stock Option Plan, the 1991 Executive Stock Option Plan, the 1993 Stock Option Plan for Non-Employee Directors, the 1996 Incentive Stock Option Plan, the 1997 Incentive Stock Option Plan, the 2000 Incentive Stock Option Plan, each as in effect at the Effective Time, and any other stock option plan established by IMPCO or any predecessor before the Distribution Date.
"IMPCO Supplemental Retirement Plan" shall mean the IMPCO Technologies Inc. Supplemental Retirement Plan, as in effect from time to time.
"Information Statement" shall mean the Information Statement sent to the holders of shares of IMPCO Common Stock in connection with the Distribution, including any amendment or supplement thereto.
"Non-Employer Stock Fund" shall have the meaning set forth in Section 2.4 of this Agreement.
"Person" shall mean any natural person, Business Entity, corporation, business trust, joint venture, association, company, partnership, limited liability company, other entity or government, or any agency or political subdivision thereof.
"Plan Transfer Date" shall have the meaning set forth in Section 2.2(b) of this Agreement.
"Quantum" shall have the meaning set forth in the recitals hereto.
"Quantum 2002 Stock Incentive Plan" shall mean the Quantum Fuel Systems Technologies Worldwide, Inc. 2002 Stock Incentive Plan.
"Quantum Common Stock" shall have the meaning set forth in the recitals hereto.
"Quantum Employees" shall mean the IMPCO Employees who, immediately after the Employee Transfer Date, are employed by the Quantum Group (including persons who would otherwise be deemed to be Quantum Employees who are absent from work by reason of disability or leave of absence and inactive employees treated as such by agreement therewith) but shall not include any persons who are or become Quantum Employees after such date.
"Quantum Group" shall mean Quantum and each Business Entity which is contemplated to remain or become a Subsidiary of Quantum pursuant to the Distribution Agreement.
"Quantum Savings Plan" shall have the meaning set forth in Section 2.2(a) of this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Service" shall mean the U.S. Internal Revenue Service or any successor entity thereto.
"Subsidiary" shall mean any corporation, partnership or other entity of which another entity (i) owns, directly or indirectly, ownership interests sufficient to elect a majority of the
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Board of Directors (or persons performing similar functions) (irrespective of whether at the time any other class or classes of ownership interests of such corporation, partnership or other entity shall or might have such voting power upon the occurrence of any contingency) or (ii) is a general partner or an entity performing similar functions (e.g., a trustee).
ARTICLE II
COMPANY SAVINGS PLANS
SECTION 2.1 IMPCO SAVINGS PLAN. From and after the Employee Transfer Date, IMPCO shall continue to sponsor the IMPCO Savings Plan for the benefit of IMPCO Retained Employees who, prior to such date, were participants thereunder. Active participation of all Quantum Employees in the IMPCO Savings Plan shall cease immediately prior to the Employee Transfer Date, and the trustee of such plan shall not accept further contributions made by or on behalf of the Quantum Employees, other than contributions that accrued prior to the Employee Transfer Date. Except as may be required by Section 411(d)(3) of the Code or other applicable law, nothing contained in this Article II shall have the effect of accelerating the degree to which any individual has a vested interest in the IMPCO Savings Plan or the Quantum Savings Plan.
SECTION 2.2 QUANTUM SAVINGS PLAN.
(a) As of the Employee Transfer Date, Quantum shall adopt a defined contribution plan that is intended to qualify under Sections 401(a) and 40l(k) of the Code (the "Quantum Savings Plan"), under which benefits shall generally be provided for Quantum Employees. Subject to such adoption, Quantum agrees to use its reasonable best efforts to cause the applicable fiduciaries of the Quantum Savings Plan to accept a transfer of assets and liabilities from the IMPCO Savings Plan, in accordance with the spin-off provisions set forth under Section 414(l) of the Code and other applicable law, representing the full account balances of Quantum Employees for all periods of participation in the IMPCO Savings Plan through the Employee Transfer Date (including all contributions and all earnings attributable thereto).
(b) Prior to the date on which the transfer of assets and liabilities to the Quantum Savings Plan may occur (the "Plan Transfer Date"), which date shall occur as promptly as practicable following the Employee Transfer Date and be subject to the fiduciaries of the Quantum Savings Plan accepting a transfer of assets and liabilities under Section 2.2(a), IMPCO shall (i) cause the trustee of the IMPCO Savings Plan to segregate, in accordance with the spin-off provisions set forth under Section 414(l) of the Code and other applicable law, the assets of the IMPCO Savings Plan representing the full account balances of Quantum Employees for all periods of participation in the IMPCO Savings Plan through the Employee Transfer Date (including all contributions and all earnings attributable thereto); (ii) make all required filings and submissions to the appropriate governmental agencies; and (iii) make all required amendments to the IMPCO Savings Plan and related trust agreement necessary to provide for the segregation of assets described in this Section 2.2(b).
(c) On the Plan Transfer Date, IMPCO shall cause the trustee of the IMPCO Savings Plan to transfer to the trustee of the Quantum Savings Plan the account balances (inclusive of
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loans) of any participating Quantum Employees, as determined under Section 2.2(b). Such transfer shall be "in kind," based on those investment funds in which such account balances are then invested (including, but not limited to, the employer stock funds described in Section 2.4) or in such other form as IMPCO and Quantum may mutually agree; provided, however, that any plan loans to Quantum Employees shall be transferred in the form of notes. In consideration of the segregation and transfer of assets described herein, the Quantum Savings Plan shall, as of the Plan Transfer Date, assume all liabilities attributable to such assets. Upon the full completion of the transfer described herein, IMPCO and the IMPCO Savings Plan shall be relieved of, and Quantum and the Quantum Savings Plan shall assume, all liabilities for the payment of any account balances transferred from the IMPCO Savings Plan to the Quantum Savings Plan.
SECTION 2.3 OUTSTANDING LOANS. Subject to the fiduciaries of the Quantum Savings Plan accepting a transfer of assets and liabilities under Section 2.2(a), with respect to any Quantum Employees who have outstanding plan loans originally made from the IMPCO Savings Plan, such Employees shall be permitted to repay such loans to the IMPCO Savings Plan by way of regular deductions from their paychecks, and, prior to the Plan Transfer Date, IMPCO or Quantum (as the case may be) shall cause all such deductions to be forwarded to the IMPCO Savings Plan as promptly as practicable. From and after the Plan Transfer Date, all plan loan repayments made by Quantum Employees shall be remitted exclusively to the Quantum Savings Plan but only to the extent such plan loans are transferred to the Quantum Savings Plan. Unless expressly contemplated by this Agreement, in no event will the transactions contemplated by this Agreement alter the terms of the applicable notes or the loan provisions of the Quantum Savings Plan or the IMPCO Savings Plan.
SECTION 2.4 EMPLOYER STOCK FUND. Effective as of the Employee Transfer Date, an IMPCO Common Stock fund shall be added as an investment option to the Quantum Savings Plan, and the IMPCO Savings Plan shall provide for both an IMPCO Common Stock fund and a Quantum Common Stock fund as investment options. The Quantum Common Stock fund in the IMPCO Savings Plan and the IMPCO Common Stock fund in the Quantum Savings Plan are each referred to as a "Non-Employer Stock Fund" with respect to the applicable Plan. U ...
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