MANAGEMENT DEFERRED
COMPENSATION PLAN
Effective
— January 1, 2008
As Last
Amended Effective July 16, 2008
E. I. du Pont
de Nemours and Company
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E. I. du Pont de Nemours
and Company (“Company”) desires to provide certain of
its employees with an opportunity to accumulate additional
retirement savings through voluntary compensation deferral
contributions to a plan intended to constitute a non-qualified
deferred compensation plan which, in accordance with
Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee
Retirement Income Security Act of 1974, as amended
(“ERISA”), is unfunded and maintained by the Company
primarily for the purpose of providing deferred compensation for a
select group of management or highly compensated employees. The
Company intends that a participant’s compensation deferrals,
and the earnings thereon, will not be subject to federal income tax
until such amounts are paid or made available to the
participant.
Section 2.01 “
Account ” means each account established on the books
of account of the Employer to reflect the balance of Plan benefits
attributable to a Participant. An Account shall be credited or
debited, as applicable, with Deferral Contributions, Credited
Investment Return and Dividend Equivalent Units, and any payments
made by the Employer to the Participant or the Participant’s
Beneficiary pursuant to this Plan. A Participant’s Account
shall be divided into Directed Investment Subaccounts, with respect
to which he/she shall be permitted to make Deemed Investment
Elections, and Stock Unit Subaccounts, with respect to which he/she
shall not be permitted to make Deemed Investment
Elections.
Section 2.02 “
Active Participant ” means a Participant on whose
behalf a current Deferral Election is in effect.
Section 2.03 “
Administrator ” means the Company.
Section 2.04 “
Affiliate ” means any corporation, organization or
entity which is under common control with the Company or which is
otherwise required to be aggregated with the Company pursuant to
paragraphs (b), (c), (m), or (o) of Section 414 of the
Code.
Section 2.05 “
Base Salary ” means the basic pay from the Employer
(excluding LTI Awards and STI Awards, distributions from
nonqualified deferred compensation plans, commissions, overtime,
severance, fringe benefits, stock options and other equity awards,
relocation expenses, incentive payments, non-monetary awards,
automobile and other allowances (whether or not such allowances are
included in the Employee’s gross income) and other
non-regular forms of compensation paid to a Participant for
employment services rendered). Base Salary shall be calculated
before reduction for compensation voluntarily deferred or
contributed by the Participant pursuant to all qualified or
nonqualified plans of any
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Employer and shall be
calculated to include amounts not otherwise included in the
Participant’s gross income under Code Sections 125, 132,
402(e)(3), 402(h), or 403(b) pursuant to plans or arrangements
established by any Employer; provided, however, that all such
amounts will be included in Base Salary only to the extent that had
there been no such plan, the amount would have been payable in cash
to the Employee. Notwithstanding anything in this Plan to the
contrary, Base Salary shall not include any amount paid pursuant to
a disability plan or pursuant to a disability insurance
policy.
Section 2.06 “
Base Salary Deferral Eligible Employee ” means any
U.S.-based employee of the Employer who is designated from time to
time by the Employer as eligible to defer the payment of Base
Salary in accordance with Article 4 hereof.
Section 2.07 “
Beneficiary ” means the person or persons designated
as such pursuant to Article 7 hereof.
Section 2.08 “
Change of Control ” means an objectively determined
event that occurs with respect to the Company or the Employer for
whom the Participant renders services and which constitutes both a
Change in Control for purposes of the Equity and Incentive Plan and
change in the ownership or effective control of the Company or
Employer, as applicable, or in the ownership of a substantial
portion of the Company’s or Employer’s, as applicable,
assets for purposes of Code Section 409A.
Section 2.09 “
Code ” means the Internal Revenue Code of 1986, as
amended, and the regulations and rulings issued
thereunder.
Section 2.10 “
Common Stock Unit ” means a notional unit representing
one share of common stock of the Company.
Section 2.11 “
Credited Investment Return ” means the hypothetical
gain or loss credited to a Participant’s Directed Investment
Subaccounts pursuant to Article 5 hereof.
Section 2.12 “
Deemed Investment Election ” means the selection by a
Participant, pursuant to Article 5 hereof, of Investment
Options in which his/her Directed Investment Subaccounts shall be
deemed invested.
Section 2.13 “
Deferral Contributions ” means the elective
contributions made to the Plan by a Participant pursuant to
Article 4 hereof.
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Section 2.14 “
Deferral Election ” means an election, pursuant to
Article 4 hereof, to defer receipt of Base Salary or STI
Awards, or the settlement of LTI Awards.
Section 2.15 “
Directed Investment Subaccount ” means that portion of
a Participant’s Account to which a Participant’s
Deferral Contributions of Base Salary and STI Awards, and Credited
Investment Return and Dividend Equivalent Units attributable
thereto, will be allocated and with respect to which he/she may
make Deemed Investment Elections in accordance with Article 5
hereof. A Participant may maintain no more than five
(5) Directed Investment Subaccounts under this
Plan.
Section 2.16 “
Dividend Equivalent Units ” means additional Common
Stock Units credited to a Participant’s Account pursuant to
Section 5.05.
Section 2.17 “
Dividend Payment Date ” means each date on which the
Company pays a dividend on its common stock.
Section 2.18 “
Effective Date ” means January 1, 2008.
Notwithstanding the foregoing to the contrary, provisions of this
Plan related to the deferral of Base Salary and LTI Awards shall
not be effective until January 1, 2009.
Section 2.19 “
Eligible Employee ” means any Base Salary Deferral
Eligible Employee, STI Deferral Eligible Employee or LTI Deferral
Eligible Employee.
Section 2.20 “
Employer ” means the Company and any Affiliate which,
with the consent of the Company, adopts this Plan.
Section 2.21 “
Equity and Incentive Plan ” means the E.I. du Pont de
Nemours and Company Equity and Incentive Plan.
Section 2.22 “
Form of Payment ” means either (i) a lump sum or
(ii) annual installments (for up to fifteen (15) years).
Annual installments are available only in connection with a
Separation from Service or Change of Control. In the event of a
Participant’s death, his/her remaining Account balance will
be distributable in a single lump sum.
Section 2.23 “
Identification Date ” means each
December 31.
Section 2.24 “
Investment Options ” means one or more alternatives
designated from time to time, pursuant to Section 5.01 hereof,
for purposes of crediting earnings or losses to Directed Investment
Subaccounts.
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Section 2.25 “
LTI Award ” means an award of RSUs or PSUs.
Section 2.26 “
LTI Deferral Eligible Employee ” means any U.S.-based
employee of the Employer who is designated from time to time by the
Company as eligible to defer the settlement of an LTI Award in
accordance with Article 4 hereof.
Section 2.27 “
Participant ” means any Eligible Employee who has
elected to participate in the Plan by completing the appropriate
forms (including electronic forms) prescribed by the Administrator
for that purpose.
Section 2.28 “
Payment Event ” means any of the following:
(a)
Separation from Service
(b)
The earlier of (i) Separation from Service or (ii) a
specified date
Notwithstanding
the foregoing, (i) in the event of a Participant’s
death, his/her remaining Account balance will automatically be
distributed to his/her Beneficiary in a single lump sum within
ninety days (90) thereafter and (ii) a Participant may
request that all or a portion of his/her Account be distributed on
account of an “unforeseeable emergency” as defined in
Treasury Regulation Section 1.409A-3(i)(3) and subject to
the restrictions on such distributions set forth
therein.
Section 2.29 “
Plan ” means the E.I du Pont de Nemours and Company
Management Deferred Compensation Plan.
Section 2.30 “
Plan Year ” means the twelve (12) month period
beginning January 1 and ending December 31.
Section 2.31 “
PSU ” means a performance-based restricted stock unit
granted under the Equity and Incentive Plan.
Section 2.32 “
Qualified Leave ” means military leave, sick leave, or
other bona fide leave of absence if the period of such leave does
not exceed six months, or if longer, so long as the individual
retains a right to reemployment with the service recipient under an
applicable statute or by contract. A leave of absence constitutes a
bona fide leave of absence only if there is a reasonable
expectation that the employee will return to perform services for
the employer. If the period of leave exceeds six months and the
individual does not retain a right to reemployment under an
applicable statute or by contract, the employment relationship is
deemed to terminate on the first date immediately following such
six-month period.
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Section 2.33 “
RSU ” means a time-vested restricted stock unit
granted under the Equity and Incentive Plan.
Section 2.34 “
Section 16 Person ” means any employee who is
subject to the reporting requirements of Section 16(a) or the
liability provisions of Section 16(b) of the Securities and
Exchange Act of 1934, as amended.
Section 2.35 “
Separation from Service ” means a “separation
from service” as defined in Treasury
Regulation Section 1.409A-1(h).
Section 2.36 “
Similar Plan ” means a plan required to be aggregated
with this Plan under Treasury
Regulation Section 1.409A-1(c)(2)(i)(A).
Section 2.37 “
Specified Employee ” means an officer of the Employer
at any time during the 12-month period ending on an Identification
Date. If a Participant is a Specified Employee as of an
Identification Date, such Participant is treated as a Specified
Employee for the 12-month period beginning on the first day of the
first month following the Identification Date.
Section 2.38 “
STI Award ” means a cash-based award under the Equity
and Incentive Plan.
Section 2.39 “
STI Deferral Eligible Employee ” means any U.S.-based
employee of the Employer who is designated from time to time by the
Employer as eligible to defer the payment of an STI Award in
accordance with Article 4 hereof.
Section 2.40 “
Stock Unit Subaccount ” means that portion of a
Participant’s Account to which a Participant’s Deferral
Contributions of LTI Awards, and Dividend Equivalent Units
attributable thereto, will be allocated and with respect to which
he/she may not make Deemed Investment Elections in accordance with
Article 5 hereof. A Participant may maintain no more than five
(5) Stock Unit Subaccounts under this Plan.
Section 2.41 “
Triggering Event ” means, with respect to a
Distribution Subaccount, the Payment Event elected by a Participant
pursuant to Section 4.03.
Section 3.01
Procedure For and Effect of Admission. Each Eligible
Employee who desires to participate in this Plan shall complete
such forms (including electronic forms) and provide such data as is
reasonably required by the
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Administrator. By becoming
a Participant, an Eligible Employee shall be deemed to have
consented to the provisions of this Plan and all amendments
hereto.
Section 3.02
Cessation of Participation. A Participant shall cease to be
an Active Participant on the earlier of:
(a)
The date on which the Plan terminates;
(b)
The date on which he/she ceases to be an Eligible Employee;
or
(c)
The date on which he/she is permitted by the Administrator to
terminate Deferral Contributions to the Plan.
A
former Active Participant will be considered a Participant for all
purposes, except with respect to the right to make contributions,
as long as he/she retains an Account.
Article 4.
Deferral Elections
Section 4.01
Annual Deferral Election.
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(a) Deferral
Contributions of Base Salary. Prior to the last day of the
calendar year preceding the first day of a Plan Year, a Base Salary
Deferral Eligible Employee may elect, in a written or electronic
notification to the Administrator, to defer a percentage, not to
exceed 60%, of his/her Base Salary payable with respect to services
performed during the Plan Year. Any election made pursuant to this
section shall remain in effect unless and until changed by the
Participant; provided, however, that with respect to Base Salary
earned in any future taxable year, such election becomes
irrevocable on December 31 of the preceding calendar
year.
(b) Deferral
Contributions of STI Awards. With respect to any STI Award, an
STI Deferral Eligible Employee may elect, in a written or
electronic notification to the Company on or before the sixth month
prior to the last day of the performance period over which the STI
Award shall be determined, to defer a percentage, not to exceed
60%, of such STI Award; provided, however, that such STI Deferral
Eligible Employee performs services continuously from the later of
the beginning of the performance period or the date the performance
criteria are established through the date the election to defer is
made. Such election shall remain in effect unless and until changed
by the Participant; provided, however, that with respect to any STI
Award earned during any future taxable year, such election becomes
irrevocable no later than six (6) months before the end of the
performance period over which the STI Award shall be
determined.
(c) Deferral
Contributions of LTI Awards.
(i) RSUs . On or
before the last day of the calendar year preceding the first day of
a Plan Year, an LTI Deferral Eligible Employee may elect to defer
the settlement of RSUs granted during such Plan Year.
Notwithstanding the foregoing, an LTI Deferral Eligible Employee
may elect to defer the settlement of RSUs that are subject to a
vesting period of at least 12 months, provided such election
is made on or before the thirtieth (30th) day after the LTI
Deferral Eligible Employee is granted the RSUs and further provided
that the election is made at least 12 months in advance of the
earliest date on which the vesting period could expire. In the
event that a timely election to defer the settlement of RSUs may
not be made pursuant to either of the foregoing sentences of this
paragraph, an LTI Deferral Eligible Employee may elect to defer the
settlement of RSUs provided such election is made at least
12 months in advance of the date on which the restrictions on
such RSUs lapse and further provided that such RSUs may not be
settled until the fifth anniversary of the date that the
restrictions on the RSUs lapsed. Notwithstanding the foregoing to
the contrary, an LTI Deferral Eligible Employee shall not be
permitted to elect to defer the settlement of RSUs unless such
election complies with Code Section 409A. If a Participant
elects to defer settlement of RSUs, any restrictions on
transferability and/or events of forfeiture applicable to such RSUs
under the Equity and Incentive Plan or the Award Terms (as
defined
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under the Equity and
Incentive Plan) shall continue in full force and effect. Upon
expiration of all restrictions on transferability, the appropriate
number of Common Stock Units of the Company, including Dividend
Equivalent Units attributable thereto, shall be credited to the
Participant’s applicable Stock Unit Subaccount. Any election
made pursuant to this Section shall remain in effect unless and
until changed by the Participant; provided, however, that with
respect to RSUs granted in any future taxable year, such election
becomes irrevocable on or before the last day of the calendar year
preceding the Plan Year during which the RSUs are granted or, if
later, on or before the thirtieth (30th) day after the LTI Deferral
Eligible Employee is granted the RSUs and at least 12 months
in advance of the earliest date on which the vesting period could
expire.
(ii) PSUs . An LTI
Deferral Eligible Employee may elect, in a written or electronic
notification to the Company on or before the sixth month prior to
the last day of the performance period over which the PSUs shall be
determined, to defer the settlement of such PSUs. Such election
shall remain in effect unless and until changed by the Participant;
provided, however, that with respect to any PSUs earned during any
future taxable year, such election becomes i
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