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Exhibit 10.S
JOHNSON CONTROLS, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
ARTICLE 1.
PURPOSE AND DURATION
Section 1.1.
Purpose . The Johnson Controls, Inc. Executive Deferred
Compensation Plan (the "Plan") permits certain employees of the
Company and its Affiliates to defer amounts otherwise payable or
shares deliverable under separate bonus or equity plans or programs
maintained by the Company or an Affiliate.
Section 1.2.
Duration . The Plan was originally effective on
October 1, 2001, as a consolidation of the deferral features
of various separate plans. The Plan was most recently amended and
restated effective as of January 1, 2005. The Plan shall
remain in effect until terminated by the Board pursuant to
Section 9.5.
ARTICLE 2.
DEFINITIONS AND CONSTRUCTION
Section 2.1.
Definitions . Wherever used in the Plan, the following terms
shall have the meanings set forth below and, where the meaning is
intended, the initial letter of the word is capitalized:
(a) "Account" means the
record keeping account or accounts maintained to record the
interest of each Participant under the Plan. An Account is
established for record keeping purposes only and not to reflect the
physical segregation of assets on the Participant’s behalf,
and may consist of such subaccounts or balances as the
Administrator may determine to be necessary or appropriate.
(b) "Act" means the
Securities Act of 1933, as interpreted by regulations and rules
issued pursuant thereto, all as amended and in effect from time to
time. Any reference to a specific provision of the Act shall be
deemed to include reference to any successor provision thereto.
(c) "Administrator" means the
Employee Benefits Policy Committee of the Company.
(d) "Affiliate" means each
entity that is required to be included in the Company’s
controlled group of corporations within the meaning of Code
Section 414(b), or that is under common control with the
Company within the meaning of Code Section 414(c).
(e) "Beneficiary" means the
person(s) or entity(ies) designated by a Participant to be his
beneficiary for purposes of this Plan as provided in
Section 6.4.
(f) "Board" means the Board
of Directors of the Company.
(g) "Change of Control" has
the meaning ascribed in Section 8.3.
(h) "Code" means the Internal
Revenue Code of 1986, as interpreted by regulations and rulings
issued pursuant thereto, all as amended and in effect from time to
time. Any reference to a specific provision of the Code shall be
deemed to include reference to any successor provision thereto.
(i) "Committee" means the
Compensation Committee of the Board, which shall consist of not
less than two members of the Board, each of whom is also a director
of the Company and qualifies as a "non-employee director" for
purposes of Rule 16b-3 of the Exchange Act.
(j) "Company" means Johnson
Controls, Inc., and its successors as provided in
Section 9.7.
(k) "Deferral" means the
amount credited, in accordance with a Participant’s election
or as required by the Plan, to the Participant’s Account in
lieu of the payment in cash thereof, or the issuance of Shares with
respect thereto. Deferrals include the following:
(1) Annual Incentive Deferrals: A deferral of all or a
portion of a Participant’s performance cash award under the
annual incentive portion of the Johnson Controls, Inc. Annual and
Long-Term Incentive Performance Plan (or any successor plan
thereto) and, with the consent of the Administrator, any other
annual bonus plan maintained by the Company or an Affiliate.
(2) Long-Term Incentive Deferrals: A deferral of all or a
portion of a Participant’s performance cash award under the
long-term incentive portion of the Johnson Controls, Inc. Annual
and Long-Term Incentive Performance Plan (or any successor plan
thereto) and, with the consent of the Administrator, any other
multi-year bonus plan maintained by the Company or an
Affiliate.
(3) Share Deferrals: A deferral of the Shares that would
otherwise be issuable to a Participant in the form of restricted
stock under any plan of the Company providing for the grant of
restricted stock.
(4) Deferred Restricted Stock Dividends: A deferral of the
dividends paid on restricted shares granted under any plan of the
Company while such shares are subject to a period of
restriction.
(l) "ERISA" means the
Employee Retirement Income Security Act of 1974, as interpreted by
regulations and rulings issued pursuant thereto, all as amended and
in effect from time to time. Any reference to a specific provision
of ERISA shall be deemed to include reference to any successor
provision thereto.
(m) "Exchange Act" means the
Securities Exchange Act of 1934, as interpreted by regulations and
rules issued pursuant thereto, all as amended and in effect from
time to time. Any reference to a specific provision of the Exchange
Act shall be deemed to include reference to any successor provision
thereto.
(n) "Fair Market Value" means
with respect to a Share, except as otherwise provided herein, the
closing sales price on the New York Stock Exchange as of 4:00 p.m.
EST on the date
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in question (or the immediately preceding trading day if the
date in question is not a trading day), and with respect to any
other property, such value as is determined by the
Administrator.
(o) "Investment Options"
means the investment options offered under the Johnson Controls
Savings and Investment (401k) Plan (excluding the Company stock
fund) or any successor plan thereto, the Share Unit Account, and
any other alternatives made available by the Administrator, which
shall be used for the purpose of measuring hypothetical investment
experience attributable to a Participant’s Account.
(p) "Participant" means an
employee of the Company or any Affiliate who is employed in the
United States and is participating in the Company’s Stock
Ownership Program, and any other employee of the Company or any
Affiliate who is selected for participation under a Company or
Affiliate plan described in paragraph (k) and who is offered
the ability (or is required) to make Deferrals hereunder.
Notwithstanding the foregoing, the Committee shall limit the
foregoing group of eligible employees to a select group of
management and highly compensated employees, as determined by the
Committee in accordance with ERISA. Where the context so requires,
a Participant also means a former employee entitled to receive a
benefit hereunder.
(q) "Plan Year" means the
fiscal year of the Company.
(r) "Separation from Service"
means a Participant’s termination of employment from the
Company and all Affiliates, subject to the following:
(1) If a Participant takes a leave of absence from the
Company or an Affiliate for purposes of military leave, sick leave
or other bona fide leave of absence, the Participant’s
employment will be deemed to continue for the first six
(6) months of the leave of absence, or if longer, for so long
as the Participant’s right to reemployment is provided by
either by statute or by contract. If the period of the leave
exceeds six (6) months and the Participant’s right to
reemployment is not provided by either statute or contract, the
Participant will be considered to have incurred a Separation from
Service on the first day of the seventh (7 th ) month of the leave of
absence.
(2) If a Participant provides insignificant services to the
Company or an Affiliate, the Participant will be deemed to have
incurred a Separation from Service. For this purpose, a Participant
is not considered to be providing insignificant services if he or
she provides services at an annual rate that is at least equal to
twenty percent (20%) of the services rendered by such individual,
on average, during the immediately preceding three
(3) calendar years of employment (or his or her actual period
of employment if less) and the annual remuneration for such
services is at least equal to twenty percent (20%) of the average
annual remuneration earned during the final three (3) full
calendar years of employment (or his or her actual period of
employment, if less).
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(3) If a Participant continues to provide services to the
Company or an Affiliate in a capacity other than as an employee,
the Participant will not be deemed to have Separated from Service
if the Participant is providing services at an annual rate that is
at least fifty percent (50%) of the services rendered by such
individual, on average, during the immediately preceding three
(3) calendar years of employment (or his or her actual period
of employment if less) and the annual remuneration for such
services is at least fifty percent (50%) of the average annual
remuneration earned during the final three (3) full calendar
years of employment (or his or her actual period of employment if
less).
(s) "Share" means a share of
common stock of the Company.
(t) "Share Unit Account"
means the account described in Article 7, which is deemed
invested in Shares.
(u) "Share Units" means the
hypothetical Shares that are credited to the Share Unit Accounts in
accordance with Article 7.
(v) "Unforeseeable Emergency"
means a severe financial hardship of the Participant, resulting
from any of the following:
(1) an illness or accident of the Participant, his or her
spouse or dependent (as defined in Code Section 152(a));
(2) a loss of the Participant’s property due to
casualty (including the need to rebuild a home following damage to
a home not otherwise covered by insurance, for example, as a result
of a natural disaster); or
(3) other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of
the Participant, as determined by the Administrator.
(w) "Valuation Date" means
each day when the United States financial markets are open for
business, as of which the Administrator will determine the value of
each Account and will make allocations to Accounts.
Section 2.2.
Construction . Wherever any words are used in the masculine,
they shall be construed as though they were used in the feminine in
all cases where they would so apply; and wherever any words are use
in the singular or the plural, they shall be construed as though
they were used in the plural or the singular, as the case may be,
in all cases where they would so apply. Titles of articles and
sections are for general information only, and the Plan is not to
be construed by reference to such items.
Section 2.3.
Severability . In the event any provision of the Plan is
held illegal or invalid for any reason, the illegality or
invalidity shall not affect the remaining parts of the Plan, and
the Plan shall be construed and enforced as if the illegal or
invalid provision had not been included.
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ARTICLE 3.
PARTICIPATION
Section 3.1.
Effective Date . Each individual for whom an Account is
maintained under the Plan as of December 31, 2004, shall
continue in participation hereunder on January 1, 2005.
Section 3.2. New
Participants . Each employee of the Company or an Affiliate
shall automatically become a Participant on the date he makes (or
is deemed to make) a deferral election under Article IV.
ARTICLE 4.
DEFERRALS OF COMPENSATION
Section 4.1.
Annual Incentive Deferrals . A Participant may elect prior
to the first day of the fiscal year of the Company or an Affiliate
for which an annual incentive award is made, to have all or a part
of the amount payable under his annual incentive award (but not
less than $1,000) deferred under this Plan. A Participant’s
election to defer an annual incentive award payment shall be
effective only for the award to which the election relates, and
shall not carry over from award to award. As of the first day of
the fiscal year for which the award is made, the
Participant’s deferral election shall be irrevocable except
as provided in Section 4.5.
Section 4.2.
Long-Term Incentive Deferrals . A Participant who has been
awarded a long-term incentive award may elect, prior to the first
day of the final year of the performance period for such award
(whether a calendar year or the fiscal year of the Company or an
Affiliate, as applicable), to have all or a part of the amount
payable under his long-term incentive award (but not less than
$1,000) deferred under this Plan. A Participant’s election to
defer a long-term incentive payment shall be effective only for the
award to which the election relates, and shall not carry over from
award to award. As of the first day of the final fiscal year of the
performance period for such award, the Participant’s deferral
election shall be irrevocable except as provided in
Section 4.5.
Section 4.3.
Deferral of Restricted Stock . A Participant may elect prior
to or within the first thirty (30) days following the date the
Company grants share of restricted stock to defer all or any
portion of the restricted stock awarded to such Participant;
provided the first vesting date for such restricted stock award is
thirteen (13) months from the grant date. A
Participant’s election to defer restricted stock shall be
effective only for the Shares to which the election relates, and
shall not carry over from award to award. Share Deferrals shall be
subject to the same risk of forfeiture as the restricted shares to
which such Deferrals relate. As of the date on which the shares of
restricted stock would have been granted, the Participant’s
deferral election shall be irrevocable except as provided in
Section 4.5; provided that, if the Share Deferrals vest within
thirteen (13) months following the date of grant of the
restricted stock, then if and to the extent required by Code
Section 409A, such deferral election shall be cancelled and
the restricted stock shall be delivered to the Participant on such
vesting date.
Section 4.4.
Deferral of Dividends on Restricted Stock . All cash
dividends paid with respect to restricted stock granted by the
Company to a Participant while such stock is subject to
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a period of restriction shall be automatically deferred as
Deferred Restricted Stock Dividends. Deferred Restricted Stock
Dividends shall be subject to the same risk of forfeiture as the
restricted shares to which such Deferrals relate.
Section 4.5.
Cancellation of Deferral Elections . If a Participant
receives a distribution due to an Unforeseeable Emergency and
requests cancellation of his or her deferral elections under
Section 4.1, 4.2 or 4.3, or if the Administrator determines
that such deferral elections must be cancelled in order for the
Participant to receive a distribution due to an Unforeseeable
Emergency , then the Participant’s deferral election(s) shall
be cancelled. Likewise, if required for the Participant to receive
a hardship distribution under the Johnson Controls Savings and
Investment (401k) Plan (or any successor plan thereto), or any
other 401(k) plan maintained by the Company or an Affiliate, the
Participant’s deferral election(s) shall be cancelled. A
Participant whose deferral election(s) are cancelled pursuant to
this Section 4.5 may make a new deferral election under
Sections 4.1, 4.2 or 4.3 with respect to future incentive
awards or restricted stock awards, as applicable, unless otherwise
prohibited by the Administrator.
Section 4.6.
Administration of Deferral Elections . All deferral
elections must be made in the form and manner and within such time
periods as the Administrator prescribes in order to be
effective.
ARTICLE 5.
HYPOTHETICAL INVESTMENT OPTIONS
Section 5.1.
Investment Election . Amounts credited to a
Participant’s Account shall reflect the investment experience
of the Investment Options selected by the Participant, provided
that Share Deferrals and Deferred Restricted Stock Dividends shall
be automatically deemed invested in the Share Unit Account. The
Participant may make an initial investment election at the time of
enrollment in the Plan in whole increments of one percent (1%). A
Participant may also elect to reallocate his or her Account, and
may elect to allocate any future Deferrals, among the various
Investment Options in whole increments of one percent (1%) from
time to time as prescribed by the Administrator; provided that
prior to November 15, 2006, Share Deferrals and Deferred
Restricted Stock Dividends shall not be eligible for re-allocation
out of the Share Unit Account. On and after November 15, 2006,
Shares Deferrals and Deferred Restricted Stock Dividends that are
vested may be re-allocated our of the Share Unit Account, subject
to any restrictions on re-allocation as may be imposed by the
Company. Such investment elections shall remain in effect until
changed by the Participant. All investment elections shall become
effective as soon as practicable after receipt of such election by
the Administrator, and must be made in the form and manner and
within such time periods as the Administrator prescribes in order
to be effective. In the absence of an effective election, the
Participant’s Account (to the extent the Plan does not
require Deferrals to be allocated to the Share Unit Account) shall
be deemed invested in the default fund specified for the Johnson
Controls Inc. Savings and Investment (401k) Plan (or any successor
plan thereto).
On each Valuation Date, the
Administrator (or its designee) shall credit the deemed investment
experience with respect to the selected (or required) Investment
Options to each
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Participant’s Account. Notwithstanding anything herein to
the contrary, the Company retains the right to allocate actual
amounts hereunder without regard to a Participant’s
request.
Section 5.2.
Allocations to Investment Options .
(a) Incentive
Deferrals . Annual and Long-Term Incentive Deferrals will be
deemed invested in an Investment Option as of the date on which the
deferrals would have otherwise been paid to the Participant.
(b) Share Deferrals .
Share Deferrals will be credited to a Participant’s Share
Unit Account as of the date the Participant would have otherwise
been issued shares of restricted stock.
(c) Deferred Restricted
Stock Dividends . Whenever the Company declares a cash dividend
on its Shares at a time when a Participant is deemed to have
Deferred Restricted Stock Dividends, a dividend award shall be made
to such Participant as of the date the dividend is paid to the
Company’s shareholder. The dividend award for a Participant
shall be determined by multiplying the number of restricted shares
held by such Participant on the date the dividend is declared by
the amount or Fair Market Value of the dividend paid on one Share.
All such dividend awards shall be credited to a Participant’s
Share Unit Account as of the date of the dividend payment.
Section 5.3.
Securities Law Restrictions . Notwithstanding anything to
the contrary herein, all elections under Article 5 or 6 by a
Participant who is subject to Section 16 of the Exchange Act
are subject to review by the Administrator prior to implementation.
In accordance with Section 9.2, the Administrator may restrict
additional transactions, rescind transactions, or impose other
rules and procedures, to the extent deemed desirable by the
Administrator in order to comply with the Exchange Act, including,
without limitation, application of the review and approval
provisions of this Section 5.3 to Participants who are not
subject to Section 16 of the Exchange Act.
Section 5.4.
Accounts are For Record Keeping Purposes Only . Plan
Accounts and the record keeping procedures described herein serve
solely as a device for determining the amount of benefits
accumulated by a Participant under the Plan, and shall not
constitute or imply an obligation on the part of the Company or any
Affiliate to fund such benefits. In any event, the Company or an
Affiliate may, in its discretion, set aside assets equal to part or
all of such Account balances and invest such assets in Company
stock, life insurance or any other investment deemed appropriate.
Any such assets, including Company stock, shall be and remain the
sole property of the employer that set aside such assets, and a
Participant shall have no proprietary rights of any nature
whatsoever with respect to such assets.
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ARTICLE 6.
DISTRIBUTION OF ACCOUNTS
Section 6.1. Form
of Distribution . A Participant, at the time he makes an
initial deferral election under the Plan pursuant to any provision
of Article 4, may elect the form of distribution with respect
to each of the following sub-accounts:
(a) Annual Incentive
Deferrals, including interest, earnings or losses thereon.
(b) Long-Term Incentive
Deferrals, including interest, earnings or losses thereon.
(c) Share Deferrals, as
adjusted for gains or losses thereon.
Such election shall be made in
such form and manner as the Administrator may prescribe, and shall
be irrevocable. The election shall specify whether distributions
shall be made in a single lump sum or from two (2) to ten
(10) annual installments. In the absence of a distribution
election with respect to a particular subaccount, payment shall be
made in ten (10) annual installments.
No election shall be made with
respect to Deferred Restricted Stock Dividends, which are
automatically paid in a lump sum when the related restricted shares
vest.
Section 6.2. Time
of Distribution .
(a) Separation from
Service . Upon a Participant’s Separation from Service
for any reason, the Participant, or his Beneficiary in the event of
his death, shall be entitled to payment of the amount accumulated
in such Participant’s Account.
(b) Payment of Deferred
Restricted Stock Dividends . Notwithstanding anything herein to
the contrary, the portion of the Participant’s Share Unit
Account that is related to Deferred Restricted Stock Dividends
shall be paid to the Participant at the time the shares of
restricted stock to which such deferrals relate are no longer
subject to a period of restriction.
(c) Earlier
Distribution . Notwithstanding the foregoing, a distribution
may be made prior to the date specified in subsection (a) or
(b) above as follows:
(1) If an amount deferred under this Plan is required to be
included in income under Code Section 409A prior to the date
such amount is actually distributed, a Participant shall receive a
distribution, in a lump sum as soon as practicable after the date
the Plan fails to meet the requirements of Code Section 409A,
of the amount required to be included in the Participant’s
income as a result of such failure.
(2) If an amount under the Plan is required to be
immediately distributed in a lump sum under a domestic relations
order within the meaning of Code Section 414(p)(1)(B), it may
be distributed
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according to the terms of such order, provided the Participant
holds the Administrator harmless with respect to such distribution.
The Plan shall not distribute amounts required to be distributed
under a domestic relations order other than in the limited
circumstance specifically stated herein.
Section 6.3.
Manner of Distribution . The Participant’s Account
shall be paid in cash in the following manner:
(a) Lump Sum . If
payment is to be made in a lump sum,
(1) for those Participants whose Separation from Service
occurs from January 1 through June 30 of a year, payment shall
be made in the first calendar quarter of the following year,
and
(2) for those Participants whose Separation from Service
occurs from July 1 through December 31 of a year, payment
shall be made in the third calendar quarter of the following
year.
The lump sum payment shall equal
the balance of the Participant’s Account as of the Valuation
Date immediately preceding the distribution date. Notwithstanding
the foregoing, the portion of the Participant’s Share Unit
Account related to Deferred Restricted Stock Dividends shall be
paid as provided in Section 6.2(b).
(b) Installments . If
payment is to be made in annual installments, the first annual
payment shall be made:
(1) for those Participants whose Separation from Service
occurs from January 1 through June 30 of a year, in the first
calendar quarter of the following year, and
(2) for those Participants whose Separation from Service
occurs during the period from July 1 through December 31 of a
year, in the third calendar quarter of the following year.
The amount of the first annual
payment shall equal the value of 1/10 th (or 1/9 th , 1/8 th , 1/7 th , etc. depending on the number
of installments elected) of the balance of the Participant’s
Account as of the Valuation Date immediately preceding the
distribution date. All subsequent annual payments shall be made in
the first calendar quarter of each subsequent calendar year, and
shall be in an amount equal to the value of 1/9
th (or 1/8
th , 1/7
th , 1/6
th , etc. depending
on the number of installments elected) of the balance of the
Participant’s Account as of the Valuation Date immediately
preceding the distribution date. The final annual installment
payment shall equal the then remaining balance of such Account as
of the Valuation Date preceding such final payment date.
Notwithstanding the foregoing
provisions, if the balance of a Participant’s Account at
distribution date is less than fifty thousand dollars ($50,000)
during the payout period, the
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remaining balance shall be paid in the form of a lump sum on (or
as soon as practicable following) such distribution date.
(c) Delay in Payment
. No
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