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Exhibit 4.1
EMC
CORPORATION
EXECUTIVE DEFERRED
COMPENSATION RETIREMENT PLAN,
as amended June 7,
2002
Article 1.
INTRODUCTION
1.1. Adoption of
Plan . The EMC Corporation Executive Deferred Compensation
Retirement Plan has been adopted effective as of January 1,
2001. The Plan has been amended effective as of June 7,
2002.
1.2. Purpose of
Plan . The Company (as defined below) has adopted the Plan
(as defined below) to provide a competitive level of retirement
benefits to certain designated employees and directors of the
Company or any of its Subsidiaries by allowing them to defer
receipt of designated percentages of their Compensation (as defined
below) and to provide, in the sole discretion of the Company,
Company Credits (as defined below).
1.3. Status of Plan
. The Plan is intended to be “a plan which is unfunded
and is maintained by an employer primarily for the purpose of
providing deferred compensation for a select group of management or
highly compensated employees” within the meaning of Sections
201(2), 301(a)(3) and 401(a)(1) of ERISA (as defined below), and
shall be interpreted and administered to the fullest extent
possible in a manner consistent with that intent.
Article 2. DEFINITIONS
Wherever used herein, the
following terms shall have the meanings set forth below, unless a
different meaning is clearly required by the context:
2.1.
“Account” means, for each Participant, the account
established for his or her benefit under
Section 5.1.
2.2.
“Administrator” means initially the Executive
Compensation and Stock Option Committee of the Board (as defined
below) as it may be constituted from time to time, or otherwise
means a committee comprised of such members of the Board or
executive officers of the Company as may be appointed by the Board
or the Company’s President or Chief Executive Officer from
time to time.
2.3.
“Board” means the Board of Directors of the
Company, as it may be constituted from time to time.
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2.4. “Change of
Control” means the determination by the Administrator, in
its sole discretion, that any of the following shall have occurred:
(a) a reorganization, consolidation or merger of the Company
in which the Company is not the continuing or surviving corporation
or pursuant to which the Company’s common stock, par value
$.01 per share (the “Common Stock”) is converted into
cash, securities or other property, in either case other than a
reorganization, consolidation or merger of the Company in which the
holders of Common Stock immediately prior to the reorganization,
consolidation or merger hold, directly or indirectly, at least a
majority of the voting stock of the continuing or surviving
corporation immediately after such reorganization, consolidation or
merger; or (b) the sale, lease, exchange or other transfer (in
one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company.
2.5.
“Code” means the Internal Revenue Code of 1986, as
amended from time to time. Reference to any section or subsection
of the Code includes reference to any comparable or succeeding
provisions of any legislation which amends, supplements or replaces
such section or subsection.
2.6.
“Company” means EMC Corporation, a corporation
formed under the laws of The Commonwealth of
Massachusetts.
2.7. “Company
Credit” means any credit from the Company which is
received by a Participant under Section 4.2.
2.8. “Company Credit
Subaccount” means the subaccount within the
Participant’s Account to which Company Credits and allocable
earnings credits, if any, are credited.
2.9 “Company Credit
Eligible Employee” means an employee of the Company or
any of its Subsidiaries selected by the Administrator as eligible
for Company Credits under Section 4.2 from among the group of
highly compensated or managerial employees of the Company or any of
its Subsidiaries.
2.10. “Company
Stock” means the Company’s common stock, par value
$.01 per share.
2.11.
“Compensation” means any cash bonuses and
directors’ fees payable from time to time by the Company or
any of its Subsidiaries to a Participant and a Participant’s
income from exercised vested stock options to purchase Company
Stock; provided, however, that with respect to each Participant,
the Administrator in its sole discretion may determine which
specific types of Compensation may be deferred under the Plan by
such Participant; provided further, however, that the Administrator
may, in its sole discretion, amend this Section 2.11 to cover
other types of compensation payable from time to time by the
Company or any of its Subsidiaries to a Participant, including,
without limitation, cash commissions and salary.
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2.12. “Elective
Deferral” means the portion of Compensation which is
deferred by a Participant under Section 4.1.
2.13. “Elective
Deferral Subaccount” means the subaccount within the
Participant’s Account to which Elective Deferrals and
allocable earnings credits are credited.
2.14. “Elective
Deferral Eligible Employee” means an employee of the
Company or any of its Subsidiaries selected by the Administrator as
eligible for Elective Deferrals under Section 4.1 from among
the group of highly compensated or managerial employees of the
Company or any of its Subsidiaries.
2.15 “Eligible
Employee” means an employee of the Company or any of its
Subsidiaries who is a Company Credit Eligible Employee, an Elective
Deferral Eligible Employee, or both.
2.16 “Eligible
Director” means any member of the Board.
2.17.
“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended from time to time. Reference to
any section or subsection of ERISA includes reference to any
comparable or succeeding provisions of any legislation which
amends, supplements or replaces such section or
subsection.
2.18.
“Participant” means any individual who participates
in the Plan in accordance with Article 3.
2.19.
“Plan” means the EMC Corporation Executive Deferred
Compensation Retirement Plan as set forth herein and all subsequent
amendments hereto.
2.20. “Plan
Year” means in the case of the first Plan Year, the
period beginning January 1, 2001 and ending on
December 31, 2001, and thereafter, the 12-month period ending
each December 31.
2.21.
“Resignation of Service” means the voluntary
resignation from service for the Company by an Eligible
Director.
2.22.
“Retirement” means the voluntary retirement by a
Participant from service with the Company (a) after such
Participant has attained 55 years of age and five years of service
with the Company or (b) after such Participant has attained
twenty years of service with the Company or any of its
Subsidiaries; provided, in each such case, that such Participant
complies with the terms set forth in the Company’s form of
Key Employee Agreement (which agreement (i) shall be deemed to
apply to such Participant whether or not such Participant is a
party to a Key Employee Agreement and (ii) is expressly
incorporated by reference herein and made a part of the
Plan).
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2.23.
“Subsidiary” or “Subsidiaries” means a
corporation or corporations in which the Company owns, directly or
indirectly, stock possessing fifty percent (50%) or more of
the total combined voting power of all classes of stock.
Article 3.
PARTICIPATION
3.1. Commencement of
Participation . Any individual who is an Eligible Employee
or an Eligible Director and who has elected to defer part of his or
her Compensation for the Plan Year in accordance with
Section 4.1, or who has been selected by the Company in its
sole discretion to receive a Company Credit in accordance with
Section 4.2, shall become a Participant on the date such
election or credit is made.
3.2. Continued
Participation . Subject to Section 3.3, an individual
who has become a Participant in the Plan shall continue to be a
Participant so long as any amount remains credited to his or her
Account.
3.3. Termination of
Participation . The Administrator may terminate a
Participant’s participation in the Plan prospectively or
retroactively for any reason, including but not limited to the
Administrator’s determination that such termination is
necessary in order to maintain the Plan as a “plan which is
unfunded and is maintained by an employer primarily for the purpose
of providing deferred compensation for a select group of management
or highly compensated employees” within the meaning of
sections 201(2), 301(a)(3) and 401(a)(1) of ERISA. Upon termination
of a Participant’s participation in the Plan, amounts
credited to a Participant’s Account, if any, shall be paid to
a Participant in a single lump sum payment comprised of cash and
(in the case of any portion of an Elective Deferral Subaccount
attributable to deferrals of stock option gain Compensation)
Company Stock.
Article 4. DEFERRALS AND
CREDITS
4.1. Elective
Deferrals
(a) In general. An
Elective Deferral Eligible Employee or Eligible Director may elect
to defer a designated portion of his or her Compensation to be
earned or payable during a Plan Year, by filing a written election
with the Administrator prior to the first day of the Plan Year in
which such Compensation is to be earned or by such other date as
may be determined by the Administrator in its sole discretion;
provided, however, that with respect to each Participant, the
Administrator in its sole discretion may determine which specific
types of Compensation may be deferred under the Plan by such
Participant. An individual who first becomes an Elective Deferral
Eligible Employee or Eligible Director on or after the first day of
any Plan Year may elect to defer a designated portion of his or her
Compensation to be earned during the Plan Year by filing a written
election with the Administrator by such date as may be determined
by the Administrator in its sole discretion.
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(b) Nature of
Election. Each election under this Section 4.1 for a Plan
Year (or the balance of a Plan Year) shall be made on a form
prescribed or approved by the Administrator, shall be irrevocable
by the Participant for the applicable Plan Year, and shall apply
only to Compensation earned after the date the election form is
completed and filed with the Administrator. The election form shall
specify the whole percentage or flat dollar amount of each type of
Compensation that is to be deferred for the applicable Plan Year.
In accordance with Article 6, each Participant shall indicate on
the election form when the amount that is to be deferred for the
applicable Plan Year is to be paid (e.g., upon Retirement or
Resignation of Service, upon a fixed distribution date pursuant to
Section 6.6, or upon a Change of Control) and the method of
payment (e.g., in a single lump sum payment, in a number of annual
installments or in any other method approved by the Administrator).
The deferred amounts shall be credited to the Participant’s
Elective Deferral Subaccount as of the date such Compensation would
otherwise have been paid to the Participant.
4.2. Company
Credits . Notwithstanding any other provisions of the Plan,
the Company shall not be obligated to credit a Company Credit to
the Company Credit Subaccount of a Company Credit Eligible
Employee. The Company may determine from time to time, in its sole
discretion, to credit a Company Credit, in an amount the Company
may determine in its sole discretion, to the Company Credit
Subaccount of a Company Credit Eligible Employee.
Article 5. ACCOUNTS;
INTEREST
5.1. Accounts .
The Administrator shall establish an Account for each Participant
consisting of an Elective Deferral Subaccount and Company Credit
Subaccount, reflecting Elective Deferrals and Company Credits,
respectively, and any adjustments hereunder. As soon as reasonably
practical after the end of each Plan Year, the Administrator shall
provide the Participant with a statement of his or her
Account.
5.2. Earnings
Measurement . The Administrator shall identify one or more
funds (such as mutual funds or bank collective funds) from time to
time for the purpose of measuring earnings credits to
Participants’ Accounts. Each Participant may specify which
one or more of such funds he or she wishes to be used as a
measuring vehicle for designated percentages of his or her Account,
in such form and manner, and with such notice, as the Administrator
may prescribe, provided that such directions may be given on a
prospective basis only, and further provided that any deferrals of
stock option gain Compensation shall be invested exclusively and
permanently in Company Stock. Changes in Participant directions
hereunder may be made by a Participant no more than once
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every thirty (30) days or at such
other times or as frequently as the Administrator may prescribe.
Each Participant’s Account shall be adjusted from time to
time (at least quarterly) to reflect the fair market value that
would be ascribed to the Account if the amounts credited to the
Account were actually invested in the funds as directed by the
Participant. For purposes of Company Credits, earnings credits (if
any) shall begin to accrue as of the actual date of contribution
and investment by the Company of such funds into a grantor trust
pursuant to Section 9.1.
5.3. Payments .
Each Participant’s Account shall be reduced by the amount of
any payment made to or on behalf of the Participant under Article 6
as of the date such payment is made.
5.4. Vesting .
A Participant will at all times be 100% vested in his or her
Elective Deferral Subaccount. A Participant will earn an interest
to be vested in his or her Company Credit Subaccount according to
any vesting schedule(s) adopted by the Company in its sole
discretion; provided, however, that in the event (a) that a
Participant becomes totally and permanently disabled as determined
in the sole discretion of the Company or (b) of a Change of
Control a Participant will become 100% vested in his or her Company
Credit Subaccount.
5.5 Detrimental
Activity .
(a) Notwithstanding any other
provisions of the Plan, in the event that a Participant engages in
“Detrimental Activity” (as defined below) at any time,
the Administrator may in its sole discretion (i) direct the
Company to pay the balance of the Participant’s Account in
the form of a single lump sum payment comprised of cash and (in the
case of any portion of an Elective Deferral Subaccount attributable
to deferrals of stock option gain Compensation) Company Stock; and
(ii) cancel, rescind, suspend or otherwise limit or restrict
at any time all amounts, if any, credited to such
Participant’s Company Credit subaccount, whether or not fully
vested. Furthermore, in the event that a Participant engages in
Detrimental Activity at any time during the twelve (12) months
after the termination of his or her employment with the Company or
any of its Subsidiaries for any reason or termination of service as
a director of the Company for any reason, as the case may be, the
Company may require such Participant at any time until the later of
(A) two years after such Participant’s termination of
employment for any reason or termination of service as a director
of the Company for any reason, as the case may be, or (B) two
years after such Participant engaged in Detrimental Activity to pay
to the Company (1) an amount equal to any distributions
previously made by the Company to such Participant from such
Participant’s Company Credit Account and (2), if the Company
commences an action against such Participant (by way of a claim or
counterclaim and including declaratory claims), in which it is
preliminarily or finally determined that such Participant engaged
in Detrimental Activity or otherwise violated this
Section 5.5, an amount equal to the Company’s costs and
fees incurred in such action, including but not limited to, the
Company’s reasonable attorneys’ fees. The Company shall
be entitled to set off any such amounts owed to the Company against
any amounts owed to such Participant
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by the Company, including
without limitation, any amounts to be distributed from such
Participant’s Elective Deferral Subaccount. For this purpose
“Detrimental Activity” means, in the Company’s
sole determination, that the Participant has, directly or
indirectly, (a) become associated in any capacity with any
enterprise that is, or may be deemed to be, in competition with any
business of the Company or any of its Subsidiaries,
(b) solicited, induced or attempted to induce, in any
enterprise that is competitive with the Company or any of its
Subsidiaries, any customers or employees of the Company to curtail
or discontinue their relationship with the Company or any of its
Subsidiaries, (c) disclosed, communicated or misused, to the
detriment of the Company or any of its Subsidiaries, any
confidential or proprietary information relating to the Company or
any of its Subsidiaries to any person or entity not associated with
the Company or any of its Subsidiaries, (d) failed to comply
with the terms of the Plan, (e) failed to comply with any term
set forth in the Company’s Key Employee Agreement
(irrespective of whether the Participant is a party to the Key
Employee Agreement), (f) engaged in any activity that results
in termination of the Participant’s employment for cause,
(g) violated any rule, policy, procedure or guideline of the
Company or any of its Subsidiaries, or (h) been convicted of,
or has entered a guilty plea with respect to, a crime whether or
not connected with the Company or any of its
Subsidiaries.
(b) Notwithstanding anything
herein to the contrary, this Section 5.5 shall not in any way
amend, modify or affect any other plan, agreement, instrument or
understanding, including without limitation, any of the
Company’s stock option plans, or any of the rights of the
Company or any of its Subsidiaries thereunder with respect to any
Detrimental Activity or similar activity committed by a
Participant. The Company expressly reserves all of its rights under
any such other plan, agreement, instrument or understanding and
this Section 5.5 shall not be construed in any way as a waiver
of any such rights.
Article 6. - PAYMENTS
6.1 Payment Upon
Retirement or Resignation of Service . In the event a
Participant’s employment with the Company or any of its
Subsidiaries is terminated due to the Participant’s
Retirement, or in the event that a Participant’s service as a
director of the Company is terminated due to the
Participant’s Resignation of Service, then as soon as
administratively practicable thereafter, payments will be made to
the Participant as follows:
(a) With respect to the
Participant’s Elective Deferral Subaccount, unless the
Participant elects an alternative form of payment as described in
Section 6.1(c) either in the initial Elective Deferral
election described in Section 4.1 or at least 13 months prior
to Retirement or Resignation of Service, payments to be made upon
Retirement or Resignation of Service will be made in a single lump
sum payment comprised of cash and (in the case of any portion of an
Elective Deferral Subaccount attributable to deferrals of stock
option gain Compensation) Company Stock.
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(b) With respect to the
vested portion, if any, of the Participant’s Company Credit
Subaccount, unless the Participant elects an alternative form of
payment as described in Section 6.1(c) at least 13 months
prior to Retirement, payments to be made upon Retirement will be
made in a single lump sum cash payment. The unvested portion, if
any, of the Participant’s Company Credit Subaccount shall be
forfeited automatically upon Retirement.
(c) A Participant may elect,
either in the initial Elective Deferral election described in
Section 4.1 o
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