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Exhibit 10.35
GENENCOR INTERNATIONAL, INC.
NONQUALIFIED DEFERRED COMPENSATION PLAN
Effective as of September 15, 2003
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TABLE OF CONTENTS
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ARTICLE 1
PURPOSE AND TERM
1.1
Purpose.............................................................
1
1.2 Effective
Date......................................................
1
ARTICLE 2
DEFINITIONS
2.1
"Account"...........................................................
1
2.2 "Additional
Shares".................................................
1
2.3 "Additional Shares
Contribution".................................... 1
2.4
"Beneficiary".......................................................
1
2.5
"Board".............................................................
1
2.6 "Cash
Account"......................................................
1
2.7 "Change In
Control".................................................
2
2.8
"Claimant"..........................................................
2
2.9
"Code"..............................................................
2
2.10 "Commencement
Date"................................................. 2
2.11
"Committee".........................................................
2
2.12 "Common
Stock"......................................................
2
2.13
"Company"...........................................................
2
2.14 "Company Contribution
Account"...................................... 3
2.15 "Company
Contributions".............................................
3
2.16
"Compensation"......................................................
3
2.17 "Compensation Deferral
Account"..................................... 3
2.18 "Compensation
Deferrals"............................................ 3
2.19 "Designation
Date"..................................................
3
2.20
"Director"..........................................................
3
2.21
"Disability"........................................................
3
2.22 "Effective
Date"....................................................
3
2.23 "Eligible
Person"...................................................
3
2.24 "Entry
Date"........................................................
3
2.25
"ERISA".............................................................
3
2.26 "Exchange
Act"......................................................
4
2.27 "Exchange
Shares"...................................................
4
2.28 "Hardship
Distribution".............................................
4
2.29 "Immediate
Distribution"............................................
4
2.30 "Investment
Agent"..................................................
4
2.31
"MDCC"..............................................................
4
2.32
"Participant".......................................................
4
2.33 "Participant Enrollment and
Election Form".......................... 4
2.34
"Plan"..............................................................
4
2.35 "Plan Year"
........................................................
4
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2.36 "Restricted Stock Unit
Award"....................................... 4
2.37
"Retirement"........................................................
4
2.38
"Severance".........................................................
4
2.39 "Stock
Account".....................................................
5
2.40 "Stock
Deferrals"...................................................
5
2.41
"Trust".............................................................
5
2.42
"Trustee"...........................................................
5
2.43 "Year of
Service"...................................................
5
ARTICLE 3
ELIGIBILITY AND PARTICIPATION
3.1 Eligible
Persons....................................................
5
3.2
Requirements........................................................
5
3.3
Severance...........................................................
5
3.4 Change of Employment
Category....................................... 6
ARTICLE 4
CONTRIBUTIONS AND CREDITS
4.1 Compensation
Deferrals..............................................
6
4.2 Additional Shares
Contributions..................................... 7
4.3 Stock
Deferrals.....................................................
8
4.4 Company
Contributions...............................................
8
ARTICLE 5
MAINTENANCE OF ACCOUNTS
5.1 Investment Directions
of Participants for Cash Accounts............. 9
5.2 Maintenance of Stock
Account........................................ 11
5.3 Accounting for
Distributions........................................ 11
5.4 Expenses and
Taxes..................................................
11
ARTICLE 6
THE TRUST
6.1 Establishment of
Trust.............................................. 12
6.2 Trust to Be
Unfunded................................................
12
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ARTICLE 7
ENTITLEMENT TO BENEFITS
7.1 Fixed Payment Dates;
Severance...................................... 12
7.2 Hardship
Distributions..............................................
13
7.3 Immediate
Distributions.............................................
14
7.4 Special Rule Regarding
Deductibility................................ 14
ARTICLE 8
DISTRIBUTION OF BENEFITS
8.1
Amount..............................................................
14
8.2 Timing and Manner of
Payment........................................ 14
8.3
Severance...........................................................
16
8.4
Death...............................................................
16
8.5 Retirement or
Disability............................................ 16
8.6 Changes In Law
Affecting Taxability................................. 16
ARTICLE 9
BENEFICIARIES; PARTICIPANT DATA
9.1 Designation of
Beneficiaries........................................ 17
9.2 Information to Be
Furnished By Participants and Beneficiaries;
Inability to Locate Participants or
Beneficiaries................... 17
ARTICLE 10
ADMINISTRATION
10.1 Administrative
Authority............................................ 18
10.2 Uniformity of Discretionary
Acts.................................... 19
10.3
Litigation..........................................................
19
10.4 Conflict of
Interest................................................
19
10.5 Multiple
Capacities.................................................
19
10.6
Liability...........................................................
19
10.7 Claims
Procedure....................................................
19
ARTICLE 11
AMENDMENT
11.1 Right to
Amend......................................................
21
11.2 Amendments to Ensure Proper
Characterization of Plan................ 21
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ARTICLE 12
TERMINATION
12.1 Employer's Right to
Terminate or Suspend Plan....................... 21
12.2 Automatic Termination of
Plan....................................... 21
12.3 Successor to
Employer...............................................
21
12.4 Suspension of
Deferrals............................................. 21
12.5 Allocation and
Distribution......................................... 22
ARTICLE 13
MISCELLANEOUS
13.1 Withholding
Taxes...................................................
22
13.2 No Guarantee of Tax
Consequences.................................... 22
13.3 Limitations on Liability of
Employer................................ 22
13.4 No Right to Continued
Employment or Service......................... 23
13.5
Construction........................................................
23
13.6
Funding.............................................................
23
13.7 Spendthrift
Provision...............................................
23
13.8 Other Plans and
Agreements.......................................... 23
13.9 Governing
Law.......................................................
24
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GENENCOR INTERNATIONAL, INC.
NONQUALIFIED DEFERRED COMPENSATION PLAN
Effective as of September 15, 2003
ARTICLE 1
PURPOSE AND TERM
1.1 Purpose.
The purpose of the Plan is to provide certain members
of management and highly-compensated
employees of the Company with an
opportunity to elect to defer the receipt
of a portion of their compensation and
the receipt of shares of Common Stock. The
Plan is intended to be a "top-hat"
plan under Sections 201(2), 301(a)(3) and
401(a)(1) of ERISA, and should be
interpreted consistent with such intention.
The Plan shall also be available to
non-employee members of the Board of
Directors.
1.2 Effective
Date. The Plan was approved by the Board on
September 10, 2003, adopted by the
Management Development and Compensation
Committee on September 10, 2003 and became
effective as of September 15, 2003.
Deferrals of Compensation are permitted
beginning with Compensation payable on
or after January 1, 2004.
ARTICLE 2
DEFINITIONS
2.1 "Account"
means, with respect to a Participant, all Cash
Accounts and Stock Accounts of such
Participant, collectively, for all Plan Year
Deferrals.
2.2
"Additional Shares" means, with respect to the exercise of a
nonqualified stock option by a Participant,
the shares of Common Stock to be
received from the exercise of the
nonqualified stock option, less the Exchange
Shares to be received from the exercise of
the nonqualified stock option.
2.3
"Additional Shares Contribution" is defined in Section 4.2(a).
2.4
"Beneficiary" means, with respect to a Participant, the person
or persons designated in accordance with
the provisions of Article 9 as a
beneficiary of such Participant
hereunder.
2.5 "Board"
means the Board of Directors of Genencor
International, Inc.
2.6 "Cash
Account" means, with respect to a Participant, the
Compensation Deferral Account and Company
Contribution Account of such
Participant, collectively, for each Plan
Year Deferral.
2.7 "Change In
Control" means (i) any "person" within the meaning
of Section 14(d) of the Exchange Act, other
than the Company, a subsidiary, or
any employee benefit plan(s)
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sponsored by the Company or any subsidiary,
is or has become the "beneficial
owner," as defined in Rule 13d-3 under the
Exchange Act, directly or indirectly,
of 40% or more of the combined voting power
of the outstanding securities of the
Company ordinarily having the right to vote
at the election of directors;
provided, however, this clause "(i)" shall
not include any transaction otherwise
described herein between the Eastman
Chemical Company and Danisco A/S or their
affiliates, or between the Company and
either or both of Eastman Chemical
Company and Danisco A/S or their
affiliates, (ii) individuals who constitute the
Board on May 30, 2002 (the "incumbent
Board") have ceased for any reason to
constitute at least a majority thereof (or
a majority of the Board as then
constituted), provided that any person
becoming a director subsequent to May 30,
2002 whose election, or nomination for
election by the Company's stockholders,
was approved by a vote of at least
three-quarters (3/4) of the directors
comprising the incumbent Board (either by a
specific vote or by approval of the
proxy statement of the Company in which
such person is named as a nominee for
director without objection to such
nomination) shall be, for purposes of this
Plan, considered as though such person were
a member of the incumbent Board;
(iii) the closing of a reorganization,
merger or consolidation of the Company,
other than one with respect to which all or
substantially all of those persons
who were the beneficial owners, immediately
prior to such reorganization, merger
or consolidation, of outstanding securities
of the Company ordinarily having the
right to vote in the election of directors
own, immediately after such
transaction, more than three-quarters (3/4)
of the outstanding securities of the
resulting corporation ordinarily having the
right to vote in the election of
directors; (iv) the closing of a sale or
other disposition of all or
substantially all of the assets of the
Company, other than to a subsidiary; or
(v) the complete liquidation and
dissolution of the Company.
2.8 "Claimant"
means a person who has filed a claim for benefits
under the Plan.
2.9 "Code"
means the Internal Revenue Code of 1986, as amended,
and a reference herein to a specific
section of the Code refers to that section
as amended, including any successor or
replacement provision.
2.10
"Commencement Date" means, in the event benefits are payable
in a lump sum, the fixed date or event
(Retirement, death or Disability) chosen
for payment of such benefit, and in the
event benefits are payable in
installments, the fixed date or event
(Retirement, death or Disability) chosen
for the installment payments to begin.
2.11
"Committee" shall mean the Committee appointed from time to
time by the MDCC to administer the Plan.
The Committee shall at all times serve
at the pleasure of the MDCC and the MDCC
may, in its sole and absolute
discretion, reconstitute the Committee or
supervise, advise or direct the
activities of the Committee. If at any time
the MDCC has not appointed or has
abolished the Committee, the MDCC shall act
as the Committee.
2.12
"Common Stock" means the common stock, $.01 par value per
share, of the Company.
2.13
"Company" means Genencor International, Inc. and its
successors and assigns.
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2.14
"Company Contribution Account" means, with respect to a
Participant, the account established
pursuant to Section 4.4(b) for such
Participant for each Plan Year
Deferral.
2.15
"Company Contributions" is defined in Section 4.4(a).
2.16
"Compensation" means, in the case of a Participant who is an
employee of the Company, such Participant's
regular cash salary and cash bonuses
(including, without limitation, payments
under the Variable Pay Plan of the
Company), and in the case of a Participant
who is a Director of the Company,
such Participant's annual Board retainer
and Board meeting fees (including Board
Committee meeting fees).
2.17
"Compensation Deferral Account" means, with respect to a
Participant, the account established
pursuant to Section 4.1(b) for such
Participant for each Plan Year
Deferral.
2.18
"Compensation Deferrals" is defined in Section 4.1(a).
2.19
"Designation Date" means the date or dates as of which a
designation of investment directions by a
Participant pursuant to Section 5.1,
or any change in a prior designation of
investment directions by a Participant
pursuant to Section 5.1, shall become
effective. The Designation Date in any
Plan Year shall be determined by the
Committee; provided, however, that each
trading day of the NASDAQ Stock Market
shall be available as a Designation Date
unless the Committee selects different
Designation Dates.
2.20
"Director" means a non-employee member of the Board of
Directors.
2.21
"Disability" for a Participant means a disability which
entitles the Participant to benefits under
the Genencor International, Inc. Long
Term Disability Plan for a partial or total
disability, or would so entitle the
Participant (as determined in the MDCC's
sole and absolute discretion) if such
Participant were an employee of the Company
and covered under the Plan.
2.22
"Effective Date" means the effective date of the Plan, which
shall be September 15, 2003.
Notwithstanding the foregoing, the Plan shall not
permit Participants to elect to make
Compensation Deferrals for Compensation
payable prior to January 1, 2004; provided,
however, that this sentence shall
not be interpreted to prohibit Compensation
Deferrals with respect to calendar
2003 bonus Compensation that is earned
after the date of the deferral election
of such bonus Compensation but payable on
or after January 1, 2004, to prohibit
Additional Shares Contributions prior to
January 1, 2004 or to prohibit Stock
Deferrals prior to January 1, 2004.
2.23
"Eligible Person" means a person described in Section 3.1.
2.24
"Entry Date" means, with respect to a Participant, the first
day of the first pay period following or
coinciding with the date on which the
individual first becomes an Eligible
Person. Notwithstanding the foregoing, for
any individual who first becomes an
Eligible Person on or before the Effective
Date, his or her Entry Date shall be the
Effective Date.
2.25
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and a reference herein to
a specific section of ERISA refers
to that section as amended, including any
successor or replacement provision.
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2.26
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, including the rules thereunder and
the successor provisions and rules
thereto.
2.27
"Exchange Shares" means, with respect to the exercise of a
nonqualified stock option by a Participant,
the shares of Common Stock to be
issued to the Participant, the number of
which shall equal the shares of Common
Stock surrendered by the Participant to pay
the exercise price for the exercise
of the nonqualified stock option.
2.28
"Hardship Distribution" means a distribution described in
Section 7.2.
2.29
"Immediate Distribution" means a distribution described in
Section 7.3.
2.30
"Investment Agent" means the person appointed by the Committee
or the Trustee to invest the Cash Accounts
of a Participant held by that
Participant's Trust, or if no person is so
designated, the Committee.
2.31
"MDCC" means the Management Development and Compensation
Committee of the Board.
2.32
"Participant" means any Eligible Person or former Eligible
Person who has a balance in his or her
Account.
2.33
"Participant Enrollment and Election Form" means the form or
forms on which a Participant elects to
defer Compensation or the receipt of
shares of Common Stock hereunder and on
which the Participant makes certain
other designations as required thereon.
2.34
"Plan" means this Genencor International, Inc. Nonqualified
Deferred Compensation Plan, as amended from
time to time.
2.35
"Plan Year" means the 12-month period ending (or in the event
of the first Plan Year, the period
beginning on the Effective Date and ending)
on December 31st of each year during which
the Plan is in effect.
2.36
"Plan Year Deferral" means the amounts deferred by a
Participant into the Participant's Cash
Accounts or Stock Account during a Plan
Year.
2.37
"Restricted Stock Unit Award" means a right to receive
restricted shares of Common Stock pursuant
to an award granted under a
compensation plan maintained by the
Company.
2.38
"Retirement" means, in the case of a Participant employed by
the Company, voluntary termination of
employment on or after age 55 with 10
years or more of service, and in the case
of a Director, the date of voluntary
termination of such person's service as a
Director.
2.39
"Severance" shall mean, in the case of an employee, a
termination of employment for reasons other
than Retirement, death or
Disability, and in the case of a Director,
the termination of the Director's
Board membership for reasons other than
Retirement, death or Disability. No
Severance shall occur if an employee
terminates employment but immediately
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becomes a Director of the Company, or if a
Director becomes an employee who is
an Eligible Person immediately upon
termination of his or her Board membership.
2.40
"Stock Account" means the account established to receive
Additional Shares Contributions and Stock
Deferrals for each Plan Year Deferral.
2.41
"Stock Deferrals" is defined in Section 4.3(a)
2.42
"Trust" means the trust established pursuant to an agreement
by and between the Company and a qualified
trustee pursuant to Article 6.
2.43
"Trustee" means the trustee of that Trust described in
Article 6.
2.44
"Year of Service" means a complete Plan Year in which an
individual (whether or not such an
individual was a Participant or Eligible
Person) was an employee or Director of the
Company. An individual who is an
employee or Director for only part of a
Plan Year shall receive, in addition to
each applicable full Year of Service, 1/12
of a Year of Service for each month
of such Plan Year in which such individual
was in the service of the Company,
rounded up to the next full month.
ARTICLE 3
ELIGIBILITY AND PARTICIPATION
3.1 Eligible
Persons. Individuals who are (i) U.S. residents
designated by the Senior Vice President,
Human Resources, as officer-band or
band-one employees of the Company, (ii)
Directors of the Company, or (iii) any
other employee designated by the MDCC,
shall be Eligible Persons; provided,
however, that no person shall be an
Eligible Person unless he or she is (i) a
member of a select group of management or
highly compensated employees of the
Company or (ii) a Director of the Company.
A person shall automatically cease to
be an Eligible Person at such time as he or
she is neither a member of a select
group of management nor highly compensated
employees of the Company nor a
Director of the Company.
3.2
Requirements. Every person who is an Eligible Person on the
Effective Date shall be eligible to become
a Participant on the Effective Date.
Every other Eligible Person shall be
eligible to become a Participant on the
first Entry Date occurring on or after the
date on which he or she becomes an
Eligible Person. No individual shall become
a Participant, however, if he or she
is not an Eligible Person on the date that
his or her participation is to begin.
Participation in the Plan is voluntary. In
order to begin participation in the
Plan, an Eligible Person must make written
application in such manner as may be
required by Article 4 and must agree to
make Compensation Deferrals, Additional
Shares Contributions and/or Stock Deferrals
as provided in Article 4.
Notwithstanding the foregoing, an Eligible
Person shall become a Participant no
later than the date on which Company
Contributions are allocated to an Account
for the benefit of such person.
3.3 Severance.
If a Participant experiences a Severance from the
Company but subsequently becomes an
employee or Director of the Company, he or
she may become a contributing Participant
again in accordance with the
provisions of Section 3.1 upon re-
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employment or re-joining the Board (as
applicable), or at the time he or she
becomes an Eligible Person again (if
later). No Participant may make
Compensation Deferrals, Additional Shares
Contributions or Stock Deferrals, or
receive Company Contributions hereunder
after a Severance until the Participant
again becomes an Eligible Person.
3.4 Change of
Employment Category. During any period in which a
Participant remains with the Company, but
ceases to be an Eligible Person, he or
she shall not be eligible to make
Compensation Deferrals, Additional Shares
Contributions or Stock Deferrals, or to
receive Company Contributions hereunder.
ARTICLE 4
CONTRIBUTIONS AND CREDITS
4.1
Compensation Deferrals.
(a) Time and
Manner of Election. In accordance with rules
established by the Committee, a Participant
may elect to defer Compensation that
would otherwise be paid to the Participant,
provided that such Compensation is
not yet earned or payable at the time the
election is made. An employee
Participant may elect to defer up to 50% of
his or her total cash salary for the
Plan Year, and may elect to defer up to
100% of his or her total cash bonuses
(including, without limitation, payments
under the Variable Pay Plan) earned
during the Plan Year. A Participant who is
a Director may elect to defer up to
100% of his or her Compensation earned
during the Plan Year. Any Participant
electing to defer Compensation hereunder
for a given Plan Year must elect to
defer at least $5,000 for the Plan Year
under this Section 4.1(a). Amounts so
deferred shall be considered a
Participant's "Compensation Deferrals" and shall
be deducted by the Company from the
Compensation of the deferring Participant
and shall be credited to the Compensation
Deferral Account of the deferring
Participant.
(i) A
Participant must make a deferral election
with respect to the Compensation earned or
payable during a Plan Year during the
period beginning on November 1st and ending
on December 31st immediately
preceding such Plan Year, or during such
other period prior to the start of the
Plan Year as may be established by the
Committee. However, an Eligible Person
who becomes a Participant during the Plan
Year may make an election within 30
days of his or her Entry Date with respect
to Compensation earned and payable
after the election is filed with the
Company. To effect the initial
implementation of the Plan, Eligible
Persons may also make deferrals on or
before October 31, 2003 with respect to
calendar 2003 bonus Compensation which
is payable during calendar 2004, provided
that the Committee determines that
such bonus Compensation was not earned
prior to the date of the deferral
election for such bonus Compensation.
(ii)
Compensation Deferrals shall be made through
regular payroll deductions of salary and
Board retainers and fees and/or from
bonus payments, as applicable.
(iii) Once
made, a Participant may change his or
her election to defer salary or Board
(including Board committee) fees mid-Plan
Year, by delivering written notice to the
Company no later than June 30th of
that Plan Year, and such a change will take
effect on the first payroll period
for services rendered on or after July 1st
of that Plan Year, or as soon
6
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thereafter as administratively practicable.
Such a change may increase or
decrease the Participant's deferral
election, or cause deferrals to commence if
the Participant did not elect to defer
Compensation during the prior Plan Year's
election period. A Participant's election
to defer bonus Compensation or his or
her Board retainer for a Plan Year may not
be modified once the Plan Year has
begun, although it may be revoked as
described below.
(iv)
Compensation Deferral elections may be
revoked upon the delivery of written notice
(on a form supplied by the Company)
to the Company before the Compensation
becomes payable to the Participant, but
no less than 15 days before the date the
revocation is to become effective. The
revocation shall be effective only for
Compensation earned and payable on or
after the first pay period beginning on or
after the effective date of the
revocation, or as soon thereafter as
administratively practicable. Any
Participant who elects to revoke his or her
Compensation Deferral election may
only begin Compensation Deferrals again
effective for the following Plan Year by
submitting an election in accordance with
Section 4.1(a).
(v)
A Participant's
Compensation Deferral
election shall continue in force (unless
revoked as provided in Section
4.1(a)(iv) above) only for the Plan Year
for which the election is first
effective. The Participant must file a new
election in accordance with this
Section 4.1(a) if he or she wishes to defer
Compensation in a subsequent Plan
Year. No election, modification or
revocation will affect Compensation already
paid or payable at the time the election is
filed with the Company.
(b)
Compensation Deferral
Account. There shall be
established and maintained a separate
Compensation Deferral Account in the name
of each Participant to which shall be
credited the amount of any Compensation
Deferrals for the Plan Year and any
earnings thereon, and from which shall be
debited the amount of any losses thereon
and the amount of any distributions
made to the Participant therefrom.
(c) Vesting. A
Participant shall at all times be 100%
vested in amounts credited to his or her
Compensation Deferral Account.
4.2 Additional
Shares Contributions.
(a) Time and
Manner of Election. In accordance with rules
established by the Committee, a Participant
may elect to defer the receipt of
Additional Shares which would otherwise be
payable to the Participant pursuant
to the exercise of a non-qualified stock
option under a Company-sponsored stock
option program (an "Additional Shares
Contribution"). Such an election must be
made at least six months prior to exercise
of the option or within 30 days of
the Participant's Entry Date, if later, so
long as in the latter case the
Participant's election is filed prior to
the date that the Participant exercises
the option. To effect the initial
implementation of the Plan, Eligible Persons
may also make such an election during the
calendar 2003 Plan Year on or before
October 31, 2003, so long as the
Participant's election is filed prior to the
date that the Participant exercises the
option. No election to make an
Additional Shares Contribution shall apply
to Additional Shares already payable
at the time the election is filed with the
Company. Additional Shares deferral
elections may not be modified or revoked
once filed with the Company, but shall
apply only to the stock options identified
in the election.
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(b)
Allocations. The Additional Shares under Section
4.2(a) from the exercise of a nonqualified
stock option shall be credited to the
Participant's Stock Account for the Plan
Year. The Exchange Shares from the
exercise of the nonqualified stock option
shall be issued to the Participant.
(c) Vesting. A
Participant shall at all times be 100%
vested in the amount of Additional Shares
Contributions credited to his or her
Stock Account. This Subsection shall not
affect the date on which the
Participant becomes vested in or is
entitled to exercise a stock option held by
the Participant.
4.3 Stock
Deferrals.
(a) Time and
Manner of Election. In accordance with rules
established by the Committee, a Participant
may elect to defer the receipt of
shares of Common Stock that are due to be
received by the Participant under a
Restricted Stock Unit Award, provided that
such an election is made 12 months or
more in advance of the date that the
Participant becomes vested in such
Restricted Stock Unit Award, or within 30
days of the Participant's Entry Date,
if later, provided that no election shall
apply to a Restricted Stock Unit Award
that is already vested on the date the
election is filed. To effect the initial
implementation of the Plan, Eligible
Persons may also make such an election
during the calendar 2003 Plan Year on or
before October 31, 2003, provided that
no election shall apply to a Restricted
Stock Unit Award that is already vested
on the date the election is filed. The
deferral shall become effective on the
date the Restricted Stock Unit Award
becomes vested under the plan or agreement
governing such award. Amounts so deferred
shall be considered a Participant's
"Stock Deferrals." Stock Deferral elections
may not be modified or revoked once
filed with the Company, but shall apply
only to the Restricted Stock Unit Award
identified in the election.
(b)
Allocation. The Stock Deferrals made by a Participant
under Section 4.3(a) shall be credited to
the Participant's Stock Account for
the Plan Year.
(c) Vesting. A
Participant shall at all times be 100%
vested in the amount of Stock Deferrals
credited to his or her Stock Deferral
Account. This Subsection shall not affect
the date on which the Participant
becomes vested in a Restricted Stock Unit
Award held by the Participant.
4.4 Company
Contributions.
(a) Time and
Amount of Contribution. Apart from
Compensation Deferrals, Additional Shares
Contributions and Stock Deferrals made
by a Participant, the MDCC shall retain the
right to make discretionary
contributions for any Participant under
this Plan at the times and in the
amount(s) designated by the MDCC, in its
sole and absolute discretion. Amounts
so credited will be considered a
Participant's "Company Contributions."
(b) Company
Contribution Account. There shall be
established and maintained a separate
Company Contribution Account in the name
of each Participant to which shall be
credited the amount of any Company
Contributions during a Plan Year and any
earnings thereon, and from which shall
be debited the amount of any losses thereon
and the amount of any distributions
made to the Participant therefrom.
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(c) Vesting.
Amounts credited to the Company Contribution
Account shall become 100% vested after the
Participant has had three full Years
of Service with the Company following the
Plan Year in which the Company
Contribution was made, or at such other
time as the Company may designate at the
time the Contribution is made.
Notwithstanding the preceding, if there is a
Change in Control or the Participant dies
or incurs a Disability prior to
vesting, all amounts credited to his or her
Company Contribution Account shall
become 100% vested. Any Participant that
experiences a Severance prior to full
vesting shall irrevocably forfeit the
portion not vested at the time of
Severance, and the amount so forfeited
shall be returned to the Company. Any
Participant that experiences a Retirement
prior to full vesting shall, unless
the Committee determines otherwise in its
sole discretion (which shall include
the discretion to fully vest amounts
credited to the Company Contribution
Account on Retirement), irrevocably forfeit
the portion not vested at the time
of Retirement, and the amount so forfeited
shall be returned to the Company.
(d)
Forfeitures for Misconduct. Notwithstanding Section
4.4(c), if a P
