EXHIBIT 10.bb
HERMAN MILLER, INC.
AMENDED AND RESTATED NONEMPLOYEE OFFICER AND DIRECTOR
DEFERRED COMPENSATION STOCK PURCHASE PLAN
HERMAN
MILLER, INC. AMENDED AND RESTATED NONEMPLOYEE OFFICER AND DIRECTOR
DEFERRED COMPENSATION STOCK PURCHASE PLAN (the "Plan") adopted by
the Board of Directors of Herman Miller, Inc. (the "Board") the
____ day of September, 2005, with reference to the
following:
A.
Under Section 12, subsection (a), of the Plan, “Termination
or Amendment of Plan, (a) In General,” the Board may, at any
time by resolution, subject to certain conditions, amend the
Plan.
B.
On October 22, 2004, the American Jobs Creation Act of 2004 (P.L.
108-357) was enacted which, among other things, added Section 409A
to the Internal Revenue Code of 1986, as amended (the
“Code”) to govern the taxation of nonqualified deferred
compensation.
C.
The Board has elected to amend the Plan to comply with Section 409A
of the Code with respect to amounts deferred or vested after
December 31, 2004. The Board intends that this amendment and
restatement does not constitute a “material
modification” of the Plan as such term is used in Code
Section 409A(d)(2)(B) and further described in Notice 2005-1,
Q&A-18. As such, the Board intends that the provisions of
Section 409A of the Code will not apply to amounts deferred and
vested under the Plan prior to January 1, 2005.
NOW,
THEREFORE, effective January 1, 2005, the Plan is being amended and
restated in its entirety as provided below.
1.
Purposes. The purposes of the Herman Miller, Inc. Amended
and Restated Nonemployee Officer and Director Deferred Compensation
Stock Purchase Plan (the “Plan”) are to:
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(a)
Provide nonemployee officers and directors of Herman Miller, Inc.
(the “Company”) the opportunity to increase their
equity interests in the Company;
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(b)
Attract and retain highly qualified individuals to serve as
nonemployee officers and directors of the Company; and
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(c)
Further align their economic interests with such interests of the
shareholders of the Company.
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To achieve these purposes, the
Plan permits each nonemployee officer and director of the Company
to defer receipt of all or a portion of the total annual fees for
Board, Committee chair or nonemployee officer services
(collectively referred to as the “Annual Fees”) to his
or her account under the Plan. A Participant’s interest in
the Plan shall be expressed in Stock Units equivalent to shares of
the Company’s common stock, par value $.20 per share (the
“Shares”).
2.
Effective Date and Term. The Plan was originally effective
November 15, 1999 and is being amended and restated effective
January 1, 2005. The Plan shall remain in effect until terminated
by the Board.
3.
Administration. The Plan shall be administered by the
Nominating and Governance Committee of the Board (the
“Committee”). The Committee shall have the authority to
administer the Plan as set forth in subsection (c) of Section
16.
4.
Eligibility and Participation.
Each
nonemployee officer and director of the Company shall be eligible
to participate in the Plan and elect to defer the payment of Annual
Fees in accordance with Section 5 of the Plan.
5.
Election to Participate.
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(a)
Time and Filing . A nonemployee officer or director
becomes a Participant in the Plan by filing with the Committee an
“Election to Participate Form” for each Plan Year. The
Election to Participate Form must be submitted on or before
December 15 for the following Plan Year. A person who first becomes
eligible to participate in the Plan must submit an Election to
Participate Form within 30 days after becoming a nonemployee
officer or director, in order to be eligible to participate in the
Plan for that Plan Year.
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(b)
Form . An Election to Participate shall be made in
writing on a form prescribed by the Committee (the “Election
to Participate Form”).
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(c)
Content . On the Election to Participate Form, a
Participant must:
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(i)
Designate the dollar amount of the Annual Fees to be deferred for
the Plan Year (the “Deferred Amount”);
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(ii)
Specify the date of payment (the “Deferred Termination
Date”) which shall be at least three (3) years after the date
of Deferral);
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(iii)
Elect whether payment will be made upon the occurrence of any of
the following prior to the Deferred Termination Date:
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(A)
The Participant’s service as a director or a nonemployee
officer of the Company terminates;
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(B)
The Participant's death;
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(C)
Disability of the Participant; and
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(D)
A Change in Control of the Company.
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To the extent
that a Participant has elected payment upon the occurrence of any
of these events and such event occurs prior to the
Participant’s Deferred Termination Date, the date on which
such event occurs shall be the Participant’s
“Alternative Termination Date.”
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(iv)
Designate the type of payment in accordance with subsection (c) of
Section 9; and
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(v)
Designate one (1) or more beneficiaries
(“Beneficiaries”) to receive any credits in the
Participant’s Stock Unit Account as of the date of his or her
death.
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A Participant
may change the Deferred Amount from Plan Year to Plan Year but may
not change the Deferred Amount for a particular Plan Year after the
election is made for that Plan Year. A Participant may change the
type of payment and may extend the Deferred Termination Date, but
any such changes must be made at least 12 months prior to the
original Deferred Termination Date. With respect to changes to the
type of payment or extension of the Deferred Termination Date
relating to amounts deferred or vested after December 31, 2004, no
payment under a new election may be made within five (5) years
after the original Deferred Termination Date on which that payment
would have commenced unless the distribution occurs as a result of
the Participant’s Alternative Termination Date.
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6.
Credits to Accounts.
Amounts
deferred pursuant to subsection (c) of Section 5 shall be credited
in Stock Units to a bookkeeping reserve account maintained by the
Company for each Participant (“Stock Unit Account”) as
of the date the Annual Fees for such Plan Year are otherwise
payable. The number of Stock Units credited to a
Participant’s Stock Unit Account shall be the number
determined by dividing 100 percent of the Deferred Amount by the
Fair Market Value of a Share on the date the Annual Fees for such
Plan Year are otherwise payable. Fair Market Value is determined as
provided in subsection (j) of Section 15. Such calculations of
Stock Units shall be carried to three (3) decimal places. The value
of the Stock Units credited to the Participant’s Stock Unit
Account under this Section 6 and Section 7 shall constitute the
Participant’s entire benefit under the Plan.
7.
Additions to Stock Unit Accounts. As of the payment date of
each cash dividend payable with respect to Shares, there shall be
credited to the Stock Unit Account of each Participant an
additional number of Stock Units equal to the per share dividend
payable on such date multiplied by the number of Stock Units held
in the Stock Unit Account as of the close of business on the record
date for such dividend and divided by the Fair Market Value (as
defined in subsection (j) of Section 15 hereof) of a Share on such
business day. For purposes of this Section 7, the term cash
dividend shall include all dividends payable in cash or other
property. The calculation of additional Stock Units shall be
carried to three (3) decimal places.
8.
Vesting of Accounts.
All
Stock Units credited to a Participant’s Stock Unit Account
shall at all times be fully vested and nonforfeitable.
9.
Payment of Accounts.
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(a)
Time of Payment: Payment of the Stock Units to a Participant
shall be made or, if installment payments have been elected, shall
begin within 30 days after the Deferred Termination Date specified
by the Participant in his or her Election to Participate Form or,
if applicable, 30 days after the Participant’s Alternative
Termination Date.
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(b)
Form of Payment: The total number of Stock Units in a
Participant’s Stock Unit Account (rounded to the nearest
whole number) shall be paid to the Participant in an equal number
of whole Shares. If installment payments are elected, the number of
Shares to be paid shall be determined initially by dividing the
number of Stock Units in the Stock Unit Account (rounded to the
nearest whole number) by the number of installment payments to be
paid. Each subsequent installment payment shall be determined by
dividing the number of Stock Units remaining in the Stock Unit
Account (rounded to the nearest whole number) by the number of
installments remaining to be paid. The Company shall issue and
deliver to the Participant Shares in payment of Stock Units within
30 days following the date on which the Stock Units, or any portion
thereof, become payable. The issuance of Shares may be conditioned
upon the effectiveness of a registration statement covering the
Shares. If any fractional Stock Unit exists after the single sum or
last installment, as the case may be, of Shares is paid to the
Participant, such fractional Stock Unit shall be paid to the
Participant in cash. The value of such fractional Stock Unit shall
be determined by multiplying the fractional Stock Unit by the Fair
Market Value of a Share on the business day prior to the date on
which the single sum or last installment, as the case may be, of
Shares is paid to the Participant.
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(c)
Type of Payment: Payments of Shares will be made from the
Stock Unit Account of a Participant in whichever of the following
methods the Participant elects in his or her Election to
Participate Form (the “Payment Election”):
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(i)
A single lump sum payment within 30 days after the Deferred
Termination Date; or
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(ii)
Payment in annual installments over a period not to exceed 10
years, as the Participant shall elect, beginning 30 days after the
Deferred Termination Date and annually thereafter on each
anniversary date of the first payment, until fully
distributed.
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If all or any
portion of the Stock Unit Account is to be distributed in
installments, the portion of the Participant’s Stock Unit
Account being held for future distribution shall continue to be
credited with additional Stock Units as provided in Section 7.
Notwithstanding the foregoing, if distribution occurs as a result
of t
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