|
Exhibit 10.6
EMC CORPORATION
EXECUTIVE DEFERRED COMPENSATION
RETIREMENT PLAN,
as amended December 5, 2005
effective for amounts earned and vested after
December 31, 2004
EMC CORPORATION
EXECUTIVE DEFERRED COMPENSATION RETIREMENT
PLAN,
as amended December 5, 2005
effective for amounts earned and vested after
December 31, 2004
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 as of December 5, 2005, and is effective, as so
amended, for amounts that are subject to section 409A of the
Internal Revenue Code (the "Code") by reason of having been earned
and vested after December 31, 2004.
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 the
Compensation 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.
1
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 change in the
ownership of the Company, (b) a change in the effective
control of the Company, or (c) a change in the ownership of a
substantial portion of the assets of the Company, each as defined
for purposes of Code section 409A(a)(2)(A)(v).
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, restricted stock units ("RSUs"), and directors’ fees
payable from time to time by the Company or any of its Subsidiaries
to a Participant; 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.
2.12. "Disabled" or "Disability" means
any condition or conditions that (i) meets the definition of
such terms under the EMC Corporation Long-Term Disability Basic
Plan, and (ii) constitutes a medically determinable physical
or mental impairment that can be expected to result in death or to
last for a continuous period of not less than 12 months.
2
2.13. "Elective Deferral" means the
portion of Compensation which is deferred by a Participant under
Section 4.1.
2.14. "Elective Deferral Subaccount"
means the subaccount within the Participant’s Account to
which Elective Deferrals and allocable earnings credits are
credited.
2.15. "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.
2.16. "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. An employee is treated as an Eligible Employee as of the
date the employee is notified of his or her eligibility.
2.17. "Eligible Director" means any
member of the Board.
2.18. "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.
2.19. "Participant" means any
individual who participates in the Plan in accordance with Article
3.
2.20. "Plan" means the EMC Corporation
Executive Deferred Compensation Retirement Plan as set forth herein
and all subsequent amendments hereto.
2.21. "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.
2.22. "Resignation of Service" means
the voluntary resignation from service for the Company by an
Eligible Director.
2.23. "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
3
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).
2.24. "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 .
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.
Article 4. DEFERRALS AND
CREDITS
4.1. Elective Deferrals
-
(a) Initial election to defer. An
Elective Deferral Eligible Employee or Eligible Director may make
an initial election to defer a designated portion of his or her
Compensation to be earned during a Plan Year, by filing an election
with the Administrator prior to the first day of the Plan Year in
which such Compensation is to be earned or, as determined by the
Administrator, by such other date that is permitted for an initial
deferral election under Code section 409A; 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
following the election during the Plan Year by filing an election
with the Administrator within 30 days of becoming an Elective
Deferral Eligible Employee or Eligible Director.
4
-
otherwise) prescribed or approved by the
Administrator, shall be irrevocable by the Participant for the
applicable Plan Year, except as provided in Section 4.1(c),
and is effective only once 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 6.2, 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.
-
(c) Election to Change Time or Form of
Distribution. Any Participant who has made an initial
election to defer Compensation under Section 4.1(a) may make
an additional election to change the time or form of distribution.
Any such election to change the time or form of distribution shall
not take effect until at least 12 months after the date of the
election, must defer payment not less than 5 years from the date
payment would otherwise be made or, in the case of installments,
would begin to be made, and, where the original election was to a
fixed distribution date pursuant to Section 6.2, must be made
no less than 12 months prior to the date of the otherwise scheduled
first distribution date.
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
5
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 deferral of RSUs shall be treated as invested in
Company Stock. Changes in Participant directions hereunder may be
made by a Participant no more than once 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 amounts credited to his or her
Elective Deferral Subaccount. A Participant will earn an interest
to be vested in amounts credited to 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 Disabled 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 cancel or rescind 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
6
set off any such amounts owed to the Company
against any amounts owed to such Participant 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 beginning in the January following such Retirement or
Resignation of Service, 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 or an effective
election to change the time or form of distribution, as described
in Section 4.1, payments to be made upon Retirement or
Resignation of Service will be made in a single lump sum payment
comprised of cash or, in the case of Compensation payable in
Company Stock, Company Stock.
7
-
(b) With respect to the vested portion, if any,
of the Participant’s Company Credit Subaccount, unless the
Participant makes an effective election to change the time or form
of distribution, as described in Section&n
| 
