Exhibit 10.EE
DONALDSON COMPANY, INC.
DEFERRED COMPENSATION AND 401(K) EXCESS PLAN
(2005 RESTATEMENT)
As Amended and Restated Effective as of January 1, 2005
DONALDSON COMPANY, INC.
DEFERRED COMPENSATION AND 401(K) EXCESS PLAN
(2005 RESTATEMENT)
TABLE OF CONTENTS
PAGE
SECTION 1. HISTORY AND PURPOSE......................................1
1.1. History
1.2. Purpose
1.3. Relation to Master Stock Plans
SECTION 2. DEFINITIONS..............................................2
2.1. Account
2.2. Affiliate
2.3. Base Salary
2.4. Beneficiary
2.5. Board
2.6. Change of Control
2.6.1. Affiliate
2.6.2. Beneficial Owner
2.6.3. Exchange Act
2.6.4. Person
2.7. Code
2.8. Committee
2.9. Company
2.10. Company Credit
2.11. Deferral Credit
2.12. Disability, Disabled
2.13. Effective Date
2.14. Eligible Employee
2.15. ERISA
2.16. 401(k)-ESOP Plan
2.17. Participant
2.18. Performance Cash
2.19. Performance Share
2.20. Plan
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2.21. Plan Year
2.22. Post-Termination Bonus Matching Credit
2.23. Profit Sharing Credit
2.24. Restoration Matching Credit
2.25. Restricted Stock
2.26. Restricted Stock Deferral Credits
2.27. Termination of Employment
2.28. Valuation Date
2.29. Vested
2.30. Year of Service
SECTION 3. PARTICIPATION............................................8
3.1. Enrollment and Eligibility Requirements
3.2. Termination of Participation
3.3. Overriding Exclusion
SECTION 4. DEFERRED COMPENSATION AMOUNTS...........................10
4.1. Minimum/Maximum Deferrals
4.2. Election to Defer
4.3. 401(a)(17) Excess Deferral Credits
4.4. Performance Share Deferral Credits
4.5. Restricted Stock Deferral Credits
4.6. Company Credits
4.7. Vesting
4.8. Reduction for Tax Withholding
SECTION 5. TIME AND MANNER OF PAYMENTS.............................14
5.1. Time of Payment
5.2. Manner of Payment
5.3. Changes in Time and Manner of Payment
5.4. Hardship Distributions
5.4.1. When Available
5.4.2. Purposes
5.4.3. Suspension
5.4.4. Limitations
5.5. Change of Control Distributions
5.6. Death Benefit
5.7. Beneficiary Designation
SECTION 6. DEFERRED COMPENSATION ACCOUNT...........................18
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6.1. Participant Accounts
6.2. Investment of Accounts
6.3. Assumption of Risk
6.4. Charges Against Accounts
SECTION 7. FUNDING.................................................19
7.1. Funding
7.2. Corporate Obligation
SECTION 8. FORFEITURE OF BENEFITS..................................20
SECTION 9. ADMINISTRATION..........................................21
9.1. Authority
9.2. Liability
9.3. Procedures
9.4. Claim for Benefits
9.5. Claims Procedure
9.5.1. Original Claim
9.5.2. Claims Review Procedure
9.5.3. General Rules
9.6. Payments upon Imposition of Federal or State Taxes
9.7. Legal Fees
9.8. Errors in Computations
SECTION 10. MISCELLANEOUS...........................................24
10.1. Not an Employment Contract
10.2. Nontransferability
10.3. Tax Withholding
10.4. Expenses
10.5. Governing Law
10.6. Amendment and Termination
10.7. Rules of Interpretation
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DONALDSON COMPANY, INC.
DEFERRED COMPENSATION AND 401(K) EXCESS PLAN
(2005 RESTATEMENT)
SECTION 1
HISTORY AND PURPOSE
1.1. HISTORY. Since December 21, 1997, Donaldson Company, Inc. has maintained an
unfunded, nonqualified deferred compensation for a select group of highly
compensated employees, known as the "DONALDSON COMPANY, INC. DEFERRED
COMPENSATION AND 401(k) EXCESS PLAN." The Plan, in its most current amended and
restated form, is maintained under a document effective January 1, 2004 (the
"Prior Plan Statement"). Effective as of January 1, 2005, Donaldson Company,
Inc. hereby amends and restates the Plan in the manner hereinafter set forth.
Credits made to the Plan which relate entirely to services performed on or
before December 31, 2004 shall continue to be governed under the terms of the
Prior Plan Statement. Credits which relate all or in part to services performed
on or after January 1, 2005 shall be made subject to the terms of this Plan
statement, the terms of which are intended to comply with the deferred
compensation provisions in the American Jobs Creation Act of 2004.
1.2. PURPOSE. The purposes of this Plan are to enable the Company to supplement
the benefits for a select group of management or highly compensated employees
under the Donaldson Company, Inc. Retirement Savings and Employee Stock
Ownership Plan which will be reduced because of the compensation limitation
under section 401(a)(17) of the Code; to provide a means whereby certain amounts
payable by the Company to a select group of management or highly compensated
employees may be deferred to some future period; and to attract and retain
certain executive employees of outstanding competence.
1.3. RELATION TO MASTER STOCK PLANS. All benefits provided by this Plan that are
attributable to Long Term Incentive and Restricted Stock Deferral Credits are
subject to any applicable terms, conditions and restrictions required by the
Donaldson Company, Inc. 2001 Master Stock Incentive Plan. Benefits attributable
to Company Credits which are paid in the form of Common Stock are subject to any
applicable terms, conditions and restrictions required by the Donaldson Company,
Inc. 2001 Master Stock Incentive Plan.
SECTION 2
DEFINITIONS
The following words and phrases shall have the following meanings, unless a
different meaning is plainly required by the context. Any masculine terminology
used in the Plan shall also include the feminine gender and the definition of
any terms in the singular shall also include the plural.
2.1. ACCOUNT -- the deferred compensation account established under this Plan
for a Participant pursuant to Section 6.1.
2.2. AFFILIATE -- a business entity which is under "common control" with the
Company or which is a member of an "affiliated service group" that includes the
Company, as those terms are defined in section 414(b), (c) and (m) of the Code.
A business entity shall also be treated as an Affiliate if, and to the extent
that, such treatment is required by regulations under section 414(o) of the
Code. In addition to said required treatment, the Committee may, in its
discretion, designate as an Affiliate any business entity which is not such a
"common control" or "affiliated service group" business entity but which is
otherwise affiliated with the Company, subject to such limitations as the
Committee may impose.
2.3. BASE SALARY -- the annual cash compensation relating to services performed
during any calendar year, excluding distributions from nonqualified deferred
compensation plans, bonuses, commissions, overtime, fringe benefits, profit
sharing contributions, stock options, relocation expenses, incentive payments,
non-monetary awards, and automobile and other allowances paid to a Participant
for employment services rendered (whether or not such allowances are included in
the Employee's gross income). 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 Employer and shall be calculated
to include amounts not otherwise included in the Participant's gross income
under Code Sections 125, 402(e)(3), 402(h), or 403(b) pursuant to plans
established by any Employer; provided, however, that all such amounts will be
included in compensation only to the extent that had there been no such plan,
the amount would have been payable in cash to the Employee. In no event shall
Base Salary include any amounts payable to the Participant prior to the
commencement of his or her participation in this Plan.
2.4. BENEFICIARY -- any person or entity validly designated by the Participant
in accordance with Section 5 to receive the benefits, if any, payable from the
Participant's Account after the Participant's death. Designated persons or
entities shall not be considered Beneficiaries until the death of the
Participant.
2.5. BOARD -- the Board of Directors of the Company.
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2.6. CHANGE OF CONTROL -- a "Change of Control" shall be deemed to have occurred
if the event set forth in any one of the following paragraphs shall have
occurred:
(a) any Person is or becomes the Beneficial Owner, directly or indirectly,
of securities of the Company representing 25% or more of the combined
voting power of the Company's then outstanding securities, excluding
any Person who becomes such a Beneficial Owner in connection with a
transaction described in clause (i) of paragraph (c) below; or
(b) the following individuals cease for any reason to constitute a
majority of the number of directors then serving: individuals who, on
the date hereof, constitute the Board and any new director (other than
a director whose initial assumption of office is in connection with an
actual or threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of the
Company) whose appointment or election by the Board or nomination for
election by the Company's stockholders was approved or recommended by
a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors on the date hereof or whose
appointment, election or nomination for election was previously so
approved or recommended; or
(c) there is consummated a merger or consolidation of the Company or any
direct or indirect subsidiary of the Company with any other
corporation, other than (i) a merger or consolidation which would
result in the voting securities of the Company outstanding immediately
prior to such merger or consolidation continuing to represent (either
by remaining outstanding or by being converted into voting securities
of the surviving entity or any parent thereof), in combination with
the ownership of any trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any subsidiary of the
Company, at least 60% of the combined voting power of the securities
of the Company or such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation, or (ii) a
merger or consolidation effected to implement a recapitalization of
the Company (or similar transaction) in which no Person is or becomes
the Beneficial Owner, directly or indirectly, of securities of the
Company representing 25% or more of the combined voting power of the
Company's then outstanding securities; or
(d) the stockholders of the Company approve a plan of complete liquidation
or dissolution of the Company or there is consummated an agreement for
the sale or disposition by the Company of all or substantially all of
the Company's assets, other than a sale or disposition by the Company
of all or
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substantially all of the Company's assets to an entity, at least 60%
of the combined voting power of the voting securities of which are
owned by stockholders of the Company in substantially the same
proportions as their ownership of the Company immediately prior to
such sale.
Notwithstanding the foregoing, a "Change of Control" shall not be deemed to have
occurred by virtue of the consummation of any transaction or series of
integrated transactions immediately following which the record holders of the
common stock of the Company immediately prior to such transaction or series of
transactions continue to have substantially the same proportionate ownership in
an entity which owns all or substantially all of the assets of the Company
immediately following such transaction or series of transactions. Solely for
purposes of this Section 2.5, the following words and phrases shall have the
following meanings:
2.6.1. AFFILIATE -- an "affiliate" within the meaning of Rule 12b-2
promulgated under Section 12 of the Exchange Act.
2.6.2. BENEFICIAL OWNER -- a "beneficial owner" within the meaning of Rule
13d-3 under the Exchange Act.
2.6.3. EXCHANGE ACT -- the Securities Exchange Act of 1934, as amended from
time to time.
2.6.4. PERSON -- a "person" within the meaning of Section 3(a)(9) of the
Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except
that such term shall not include (i) the Company or any of its subsidiaries,
(ii) a trustee or other fiduciary holding securities under an employee benefit
plan of the Company or any of its Affiliates, (iii) an underwriter temporarily
holding securities pursuant to an offering of such securities, or (iv) a
corporation owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company.
2.7. CODE -- the Internal Revenue Code of 1986, including applicable regulations
for the specified section of the Code. Any reference in this Plan Statement to a
section of the Code, including the applicable regulation, shall be considered
also to mean and refer to any subsequent amendment or replacement of that
section or regulation.
2.8. COMMITTEE -- the Human Resources Committee of the Board of Directors of the
Company.
2.9. COMPANY -- Donaldson Company, Inc. and, except in determining under
Section 2.6 hereof whether or not any Change of Control has occurred, shall
include any successor by merger, purchase or otherwise.
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2.10. COMPANY CREDIT -- any amount credited to an Eligible Employee in
accordance with Section 4.6. Company Credits include Restoration Matching
Credits, Post-Termination Bonus Matching Credits and Profit Sharing Credits.
2.11. DEFERRAL CREDIT -- any amount credited to an Eligible Employee in
accordance with Sections 4.1, 4.2, 4.3, 4.4 or 4.5.
2.12. DISABILITY, DISABLED -- a physical or mental impairment which constitutes
total and permanent disability and during which the Eligible Employee is not
receiving any payments of an Early Retirement Pension or a Vested Benefit under
the Donaldson Company, Inc. Salaried Employees' Pension Plan (1997 Restatement)
(as amended from time to time), and the Eligible Employee either:
(a) is, by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected
to last for a continuous period of not less than twelve (12) months,
receiving income replacement benefits for a period of not less than
three (3) months under an accident and health plan covering employees
of the Company; or
(b) is eligible to receive and is actually receiving (after the applicable
waiting period) benefits under the federal Social Security Act as in
effect at the time of the Disability.
Notwithstanding the foregoing, the terms Disability and Disabled shall at all
times be interpreted in a manner so as not to violate section 409A of the
Internal Revenue Code.
2.13. EFFECTIVE DATE -- December 21, 1997, the original effective date of the
Plan. Except as otherwise explicitly provided herein, this amended and restated
Plan document is effective as of January 1, 2005.
2.14. ELIGIBLE EMPLOYEE -- unless the Committee determines otherwise, each
individual described in (a) or (b) below shall be an Eligible Employee to the
extent and subject to the limitations specified:
(a) OFFICERS. Each person who has been designated as an officer of the
Company by the Company's board of directors shall be an Eligible
Employee until such person ceases to be such an officer.
(b) EXECUTIVE EMPLOYEES. For purposes of Sections 4.3 only, each executive
employee of the Company or its Affiliates, other than an officer
described in (a) above, whose Recognized Compensation for a Plan Year
has exceeded the annual compensation limit then in effect under Code
section 401(a)(17) for
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such Plan Year shall become an Eligible Employee beginning with
the immediately following Plan Year. Such an executive employee shall
cease to be an Eligible Employee upon the employee's Termination of
Employment, death or Disability, whichever happens first.
2.15. ERISA -- the Employee Retirement Income Security Act of 1974, including
applicable regulations for the specified section of ERISA. Any reference in this
Plan to a section of ERISA, including the applicable regulation, shall be
considered also to mean and refer to any subsequent amendment or replacement of
that section or regulation.
2.16. 401(K)-ESOP PLAN -- the tax-qualified, profit sharing and employee stock
ownership plan known as the "Donaldson Company, Inc. Retirement Savings and
Employee Stock Ownership Plan (2004 Restatement)."
2.17. PARTICIPANT -- an Eligible Employee or a former Eligible Employee of the
Company or its Affiliates who has any amount credited to his or her Account in
this Plan.
2.18. PERFORMANCE CASH -- any performance-based cash compensation (not including
Base Salary) earned by a Participant under any Company's annual or long-term
bonus and incentive plans for services rendered during a performance period of
at least 12 months, as further specified on an election form approved by the
Committee in its sole discretion.
2.19. PERFORMANCE SHARE -- any long-term performance share awarded under the
Donaldson Company, Inc. Long-Term Compensation Plan and which is subject to the
terms, conditions and restrictions required by the Donaldson Company, Inc.
Qualified Performance Based Compensation Plan and the Donaldson Company, Inc.
2001 Master Stock Incentive Plan.
2.20. PLAN -- the Donaldson Company, Inc. Deferred Compensation and 401(k)
Excess Plan as set forth herein, and as the same may be amended from time to
time.
2.21. PLAN YEAR -- the twelve (12) consecutive month period ending on any
December 31.
2.22. POST-TERMINATION BONUS MATCHING CREDIT -- any amount credited to an
Eligible Employee in accordance with Section 4.6(b).
2.23. PROFIT SHARING CREDIT -- any amount credited to an Eligible Employee in
accordance with Section 4.6(c).
2.24. RESTORATION MATCHING CREDIT -- any amount credited to an Eligible Employee
in accordance with Section 4.6(a).
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2.25. RESTRICTED STOCK -- restricted stock awarded to an Eligible Employee under
the Donaldson Company, Inc. 2001 Master Stock Incentive Plan, or any subsequent
stock compensation plan maintained by the Company.
2.26. RESTRICTED STOCK DEFERRAL CREDITS -- any amount credited to an Eligible
Employee in accordance with Section 4.5.
2.27. TERMINATION OF EMPLOYMENT -- the complete separation from service (as that
term is defined under Section 409A of the Code) with the Company and all
Affiliates for any reason other than the employee's death or Disability.
2.28. VALUATION DATE -- for Plan Years beginning on or after August 1, 2000,
each December 31 and each other day that the New York Stock Exchange is open and
conducting business, or such other date or dates as the Committee may establish.
2.29. VESTED -- nonforfeitable.
2.30. YEAR OF SERVICE -- a one-year period of employment with the Company in
which the Participant completes at least 1,000 hours of service.
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SECTION 3
PARTICIPATION
3.1. ENROLLMENT AND ELIGIBILITY REQUIREMENTS.
(a) As a condition to participation, each Eligible Employee who is
eligible to participate in the Plan effective as of the first day of a
Plan Year shall complete, execute and return to the Committee an
election form and a beneficiary designation form prior to the first
day of such Plan Year, or such other earlier deadline as may be
established by Committee in its discretion. In addition, the Committee
may establish from time to time such other enrollment requirements as
it determines, in its sole discretion, are necessary.
(b) An Eligible Employee who first becomes eligible to participate in this
Plan after the first day of a Plan Year must complete these
requirements within 30 days after he or she first becomes eligible to
participate in the Plan, or within such other earlier deadline as may
be established by the Committee in its discretion, in order to
participate for that Plan Year. In such event, such person's
participation in this Plan shall not commence earlier than 30 days
after he or she first becomes eligible to participate in the Plan, and
such person shall not be permitted to defer under this Plan any
portion of his or her Base Salary, Performance Cash, Performance
Shares or Restricted Stock that are paid with respect to services
performed prior to his or her participation commencement date, except
to the extent permissible under section 409A of the Code and related
Treasury guidance or regulations thereunder.
(c) Each Eligible Employee who is eligible to participate in the Plan
shall commence participation in the Plan only after the Eligible
Employee has met all enrollment requirements set forth in this Plan
and required by the Committee, including returning all required
documents to the Committee within the specified time period.
3.2. TERMINATION OF PARTICIPATION. A person shall cease to be a Participant as
soon as all amounts credited to the Participant's Account have been paid in
full.
3.3. OVERRIDING EXCLUSION. Notwithstanding anything apparently to the contrary
in this Plan or in any written communication, summary, resolution or document or
oral communication, no individual shall be a Participant in this Plan, develop
benefits under this Plan or be entitled to receive benefits under this Plan
(either for the employee or his or her survivors) unless such individual is a
member of a select group of management or highly compensated employees (as that
expression is
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used in ERISA). If a court of competent jurisdiction, any representative of the
U.S. Department of Labor or any other governmental, regulatory or similar body
makes any direct or indirect, formal or informal, determination that an
individual is not a member of a select group of management or highly compensated
employees (as that expression is used in ERISA), such individual shall not be
(and shall not have ever been) a Participant in this Plan at any time. If any
person not so defined has been erroneously treated as a Participant in this
Plan, upon discovery of such error such person's erroneous participation shall
immediately terminate AB INITIO and upon demand such person shall be obligated
to reimburse the Company for all amounts erroneously paid to him or her.
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SECTION 4
DEFERRED COMPENSATION AMOUNTS
4.1. MINIMUM/MAXIMUM DEFERRALS. For each Plan Year, an Eligible Employee may
elect to defer Base Salary, Performance Cash, Performance Shares and/or
Restricted Stock in the following minimum and up to the following maximum
amounts for each deferral elected:
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CASH COMPENSATION DEFERRAL AMOUNT
------------------------------------------------------------
Base Salary 1% - 75%
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Performance Cash 1% - 100%
------------------------------------------------------------
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EQUITY COMPENSATION DEFERRAL AMOUNT
------------------------------------------------------------
Performance Shares 1% - 100%
------------------------------------------------------------
Restricted Stock 1% - 100%
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If, prior to the beginning of a Plan Year, an Eligible Employee has made an
election for less than the stated minimum amounts, or if no election is made,
the amount deferred shall be zero. If, at any time after the beginning of a Plan
Year, an Eligible Employee has deferred less than the stated minimum amounts for
that Plan Year, any amount credited to the Eligible Employee's Account for that
Plan Year shall be distributed to the Participant within sixty (60) days after
the last day of the Plan Year. Notwithstanding the foregoing, if an Eligible
Employee who first becomes a Participant after the first day of a Plan Year, the
maximum deferral shall be limited to the amount of compensation not yet earned
by the Participant as of the date the Participant submits an a deferral election
to the Committee for acceptance.
4.2. ELECTION TO DEFER.
(a) FIRST PLAN YEAR OF ELIGIBILITY. In connection with an Eligible
Employee's commencement of participation in the Plan, the Eligible
Employee shall make an irrevocable deferral election for the Plan Year
in which the Participant commences participation in the Plan, along
with such other elections as the Committee deems necessary or
desirable under the Plan. For these elections to be valid, the
election form must be completed and timely delivered to the Committee
and accepted by the Committee within thirty (30) days after the
Participant first becomes eligible to participate in the Plan.
(b) SUBSEQUENT PLAN YEARS. For each succeeding Plan Year, an irrevocable
deferral election for that Plan Year, and such other elections as the
Committee deems necessary or desirable under the Plan, shall be made
by
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timely delivering a new election form to the Committee, in accordance
with the terms of the Plan, before the end of the Plan Year preceding
the Plan Year for which the election is made. If no such election form
is timely delivered for a Plan Year, the deferral election shall be
zero for that Plan Year.
(c) PERFORMANCE-BASED COMPENSATION. Notwithstanding the foregoing, an
irrevocable deferral election pertaining to Performance Cash,
Performance Shares or other performance pay which qualifies as
"performance-based compensation" may be made by timely delivering an
election form to the Committee, in accordance with the terms of the
Plan, no later than six months before the end of the performance
period. "Performance-based compensation" shall be compensation based
on services performed over a period of at least twelve (12) months, in
accordance with section 409A of the Code and related guidance. For
this purpose, Restricted Stock does not qualify as "performance-based
compensation" unless subject to a performance-based vesting condition
or as otherwise qualified under section 409A of the Code and related
guidance.
(d) RESTRICTED STOCK SUBJECT TO TIME-BASED VESTING. Notwithstanding the
foregoing, an irrevocable deferral election pertaining to Restricted
Stock subject to a time-based forfeiture condition requiring the
Eligible Employee's continued services for a period of at least twelve
(12) months from the date of grant may be made by timely delivering an
election no later than thirty (30) days after the grant date, and at
least twelve (12) months in advance of the earliest date at which the
forfeiture condition could lapse.
4.3. 401(A)(17) EXCESS DEFERRAL CREDITS. In addition to or in lieu of a Base
Salary or Performance Cash deferral election, an Eligible Employee may make a
separate election (subject to the minimum and maximum limitations in Section 4.1
above) to defer only from the Participant's Base Salary and Performance Cash in
excess of the annual compensation limit in effect for the Plan Year under
section 401(a)(17) of the Code. Such election shall be made in accordance with
the timing requirements required under Section 4.2 above (including, but not
limited to, the requirement under Section 4.2(c) that any deferral of
Performance Cash be made no later than six months before the end of the
applicable performance period).
4.4. PERFORMANCE SHARE DEFERRAL CREDITS.
(a) STOCK UNITS. After the end of the performance period applicable to a
Performance Share (the "Incentive Cycle"), the Participant's Account
shall be credited with a number of Stock Units equal to the number of
shares of common stock of the Company ("Common Stock") deferred by the
Participant.
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(b) ADJUSTMENT. In the event of any change in the outstanding shares of
Common Stock by reason of any stock split or stock dividend in the
form of a split, the Committee shall adjust the number of Stock Units
in a Participant's Account so that such number equals the number of
Stock Units in the Account prior to the event, multiplied by a
fraction, the denominator of which is the number of Stock Units in the
Account prior to the event, and the numerator of which is the number
of shares of Common Stock the Participant would have had after the
event if the Participant had shares of Common Stock immediately prior
to the event equal in number to the number of Stock Units in the
Participant's Account immediately prior to the event. In the event of
any dividend (other than a stock dividend in the form of a split),
recapitalization, merger, consolidation, spinoff, reorganization,
combination or exchange of shares or other similar corporate change,
then if the Committee, or the board of directors of a successor
corporation, shall determine, in its sole discretion, that such change
equitably requires an adjustment in the number of Stock Units then
held in the Participant's Account, such adjustment shall be made by
the Committee or said board and shall be conclusive and binding for
all purposes of the Plan.
(c) DIVIDEND UNITS. The number of Stock Units in a Participant's Account
shall be automatically increased as of each Common Stock dividend
payment date in an amount equal to the number of shares of Common
Stock that could be purchased on such dividend payment date with the
cash dividends that would be paid on a number of shares of Common
Stock equal to the number of Stock Units in the Participant's Account
on the record date for such dividend.
4.5. RESTRICTED STOCK DEFERRAL CREDITS.
(a) STOCK UNITS. As of the date on which the restrictions applicable to
Restricted Stock would otherwise lapse (the "Lapse Date"), the
Eligible Employee's Account shall be credited with a number of Stock
Units equal to the number of shares of Restricted Stock subject to the
Eligible Employee's deferral election.
(b) DIVIDENDS AND ADJUSTMENTS. Stock Units credited to a Participant's
Account under this Section 4.5 shall be increased due to cash
dividends and subject to adjustment as provided in subsections (b) and
(c) of Section 4.4 above.
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4.6. COMPANY CREDITS.
(a) RESTORATION MATCHING CREDITS. An Eligible Employee's Restoration
Matching Credit for any Plan Year shall be the amount necessary to
make up for the lost share, if any, of fixed matching contributions
(but not elective deferred contributions) under Section 3.2 of the
401(k)-ESOP Plan attributable to the Eligible Employee's Base Salary
and Performance Cash deferrals under this Plan if they would have
otherwise been allocated to the account of the Participant under the
401(k)-ESOP Plan for such Plan Year, without regard to the annual
compensation limit then in effect under section 401(a)(17) of the
Code. The amount so credited to a Participant under this Plan for any
Plan Year (i) may be smaller or larger than the amount credited to any
other person and (ii) may differ from the amount credited the Eligible
Employee in the preceding Plan Year. The Restoration Matching Credit,
if any, shall be credited to the Participant's Annual Account for the
applicable Plan Year as soon as administratively practicable after the
amount can determined for the applicable Plan Year.
(b) POST-TERMINATION BONUS MATCHING CREDIT. Notwithstanding the foregoing,
any Eligible Employee who retires either during a Plan Year or after
the end of a Plan Year in which such Eligible Employee is a
Participant in this Plan and who receives a bonus after the end of the
Plan Year that was earned in the Plan Year in which such Eligible
Employee retired shall receive an additional Post-Termination Bonus
Matching Credit of four percent (4%) of the bonus amount in such
Eligible Employee's Account.
(c) PROFIT SHARING CREDITS. The Board may, in its sole discretion, cause
the Account of an Eligible Employee to be credited with Profit Sharing
Credits for a Plan Year. Such Profit Sharing Credits shall not exceed
the amount necessary to make up for the lost share, if any, of profit
sharing contributions under Section 3.4 of the 401(k)-ESOP Plan
attributable to the Eligible Employee's Base Salary and Performance
Cash deferrals under this Plan and the annual compensation limit then
in effect under Code section 401(a)(17).
4.7. VESTING. Subject to the forfeiture provisions of Section 8, the Accounts of
all Participants shall be 100% Vested at all times.
4.8. REDUCTION FOR TAX WITHHOLDING. Notwithstanding anything in Sections 4.4(a)
and 4.5(a) to the contrary, the number of Stock Units credited pursuant to those
sections shall be reduced by the number of shares whose aggregate fair market
value on the crediting date equals the amount of any taxes that must be withheld
at the time of crediting due to the Eligible Employee's deferral election.
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SECTION 5
TIME AND MANNER OF PAYMENTS
5.1. TIME OF PAYMENT. Payment of a Participant's Account under the Plan will
commence as soon as administratively feasible after (but not later than December
31 of the Plan Year in which occurs, or if later, sixty (60) days following) the
earliest of the following events:
(a) the Participant's death;
(b) the Participant's Disability;
(c) the date that is twenty four (24) months following the Participant's
Termination of Employment; or
(d) a date of distribution selected by the Participant (at the time the
Participant first becomes eligible to participate, on a form
prescribed by the Committee), which may be:
(i) a fixed, specified date (E.G., January 1, 2010); or
(ii) a date that is a specified number of months after the
Participant's Termination of Employment (not to exceed twenty
four (24) months); provided, however, that where payment under
this paragraph (d)(ii) is made to any "key employee" (as defined
under section 409A of the Code) on account of Termination of
Employment, such payment shall commence no earlier than six (6)
months following a Termination of Employment (or upon the death
of the employee, if earlier) if required to comply with section
409A of the Code.
5.2. MANNER OF PAYMENT. A Participant's Account will be paid to the Participant
in either a single lump-sum payment or in annual installments of not more than
twenty (20) years. The Participant must elect a manner of payment at the time
the Participant elects his or her date of distribution pursuant to Section
5.1(d). Notwithstanding the foregoing, the following special rules shall apply:
(a) in the case of the Participant's death or Disability, payment shall be
in a single lump sum;
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(b) if the Participant's Account upon commencement of distribution under
Section 5.1 is less then Ten Thousand Dollars ($10,000), payment shall
be in a single lump sum; and
(c) in the event no election was made by the Participant, payment shall be
in a single lump sum.
Payment of the portion of a Participant's Account attributable to Deferral
Credits other than Performance Shares and Restricted Stock shall be in cash.
Payment to a Participant of the portion of the Participant's Account
attributable to Performance Shares and Restricted Stock shall be made, net of
withholding taxes, exclusively in shares of Common Stock. Payment to a
Participant on or after the date certified in writing by the Committee or its
delegate as the date on which distributions in stock of the portion of the
Participant's Account attributable to Company Credits are administratively
feasible shall be made, net of withholding taxes, exclusively in shares of
Common Stock. Payment prior to that certified date of such portion of a
Participant's Account shall be in cash. For purposes of determining any tax
withholding on a payment, the value of Common Stock will be the market price of
such Common Stock as of the close of business on the day prior to the date as of
which the payment is made.
5.3. CHANGES IN TIME AND MANNER OF PAYMENT. Notwithstanding the foregoing, a
Participant who is actively employed by the Company may make a new election that
changes the time or form of payment selected pursuant to Section 5.1(d) and
Section 5.2, subject to the following limitations:
(a) Such election must be submitted to and accepted by the Committee at
least twelve (12) months prior to the date a distribution to the
Participant would otherwise have been made or commenced;
(b) The election shall have no effect until at least twelve (12) months
after the date on which the election is made;
(c) The election may change the time when payment shall commence but only
if the new date selected by the Participant for commencement shall be
a date that is at least five (5) years from the prior date of
distribution selected by the Participant;
(d) The election may reduce or extend the number of installment payments
(subject to the limitations in Section 5.2) so long as the initial
installment is delayed at least five (5) years from the date
distribution would have otherwise commenced; and
(e) If the participant changes the time and/or form of payment under this
Section 5.3, payment shall commence as soon as administratively
feasible after (but
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not later than December 31 of the Plan Year in which occurs, or if
later, sixty (60) days following) the earliest of the following
events:
(i) the Participant's death;
(ii) the Participant's Disability; or
(iii) the new date selected by the Participant for commencement.
5.4. HARDSHIP DISTRIBUTIONS.
5.4.1. WHEN AVAILABLE. A Participant may receive a hardship distribution
from the Deferral Credits in his or her Account if the Committee determines that
such hardship distribution is for a purpose described in Section 5.4.2 and the
conditions in this Section 5.4 have been fulfilled. To receive such a
distribution, the Participant must file a written hardship distribution
application with the Committee and furnish such documentation as the Committee
may require. In the application, the Participant shall specify the basis for the
distribution and the dollar amount to be distributed. If such hardship
distribution is approved by the Committee, distribution shall be made as soon as
administratively feasible (but no more than sixty (60) days) following the
approval of a completed application by the Committee. Hardship distributions
shall be made in a lump-sum payment of either cash or Common Stock, as required
by Section 5.2. The amount of each hardship distribution shall be taken from the
portion of the Account attributable to the earliest enrollment (including
related earnings) first.
5.4.2. PURPOSES. Hardship distributions shall be allowed under Section
5.4.1 only if the Participant establishes that the hardship distribution is to
be made on account of an unanticipated emergency that is caused by an event
beyond the control of the Participant that would result in severe financial
hardship to the Participant resulting from (i) a sudden and unexpected illness
or accident of the Participant, the Participant's spouse, or a dependent of the
Participant, (ii) a loss of the Participant's property due to casualty, or (iii)
such other similar extraordinary and unforeseeable circumstances arising as a
result of events beyond the control of the Participant, all as determined in the
sole discretion of the Committee.
5.4.3. SUSPENSION. If the Committee approves a Participant's petition for
payout, the Participant's deferrals under this Plan shall be suspended as of the
date of such approval and the Participant shall receive a payout from the Plan
within 60 days of the date of such approval.
5.4.4. LIMITATIONS. The amount of the hardship distribution shall not
exceed the amount of the Participant's proven immediate and heavy financial
need. A hardship distribution shall not be made after the death of the
Participant. The amount of approved hardship distribution shall not exceed the
value of the Account. Notwithstanding the foregoing, the Committee, as
applicable, shall interpret all provisions relating to suspension and/or payout
under this Section 5.4 in a manner that is
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consistent with section 409A of the Code and other applicable tax law, including
but not limited to guidance issued after the effective date of this Plan.
5.5. CHANGE OF CONTROL DISTRIBUTIONS. Notwithstanding any other provision of
this Plan, in the event of a Change of Control, each Participant who incurs a
Termination of Employment with the Company for any reason during the two (2)
year period following such Change of Control shall receive within ten (10)
business days after the date of termination a lump sum payment of the entire
balance contained in the Participant's Account; provided, however, that with
respect to any Participant who separated from service before the date of a
Change of Control, the balance of the Participant's Account shall be paid at the
time and in the manner as elected by the Participant under this Section 5 hereof
(and shall not be commuted to a lump sum or otherwise accelerated by the Change
of Control). Where payment under this Section 5.5 is made to any "key employee"
(as defined under section 409A of the Code) on account of Termination of
Employment, such payment shall commence no earlier than six (6) months following
a Termination of Employment (or upon the death of the employee, if earlier) if
required to comply with section 409A of the Code.
5.6. DEATH BENEFIT. In the event of a Participant's death, the Company shall pay
the amount of the Participant's Account as of the date of death (as adjusted
from time to time pursuant to Section 6.2) in a lump-sum to the Participant's
designated Beneficiary as soon as administratively feasible after the
Participant's death (but not later than December 31 of the Plan Year in which
the Participant's death occurs, or if later, sixty (60) days following such
death). Payment to a Participant's designated Beneficiary shall be in cash to
the extent the Participant would have been paid in cash, and in Common Stock of
the Company (and cash for fractional shares) to the extent the Participant would
have been paid in Common Stock.
5.7. BENEFICIARY DESIGNATION. A Participant shall submit to the Company upon
initial designation as an Eligible Employee in the Plan, and at such other times
as the Participant desires, on a form provided by the Committee, a written
designation of the beneficiary or beneficiaries to whom payment of the
Participant's Account under the Plan shall be made in the event of the
Participant's death. Beneficiary designations shall become effective only when
received by the Company. Beneficiary designations first received by the Company
after the Participant's death, and any designations in effect at the time a
valid subsequent designation is received by the Company, shall be invalid and
have no effect. If a Participant has not designated a Beneficiary, or if no
designated Beneficiary is living on the date of distribution, the Participant's
Account shall be distributed to those persons entitled to receive the
Participant's benefit under the Donaldson Company, Inc. Salaried Employees'
Pension Plan (1997 Restatement), as amended from time to time.
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SECTION 6
DEFERRED COMPENSATION ACCOUNT
6.1. PARTICIPANT ACCOUNTS. The Committee shall cause a bookkeeping account to be
kept in the name of each Participant which shall reflect the value of the
Deferral Credits and Company Credits, and any earnings (including Dividend
Units) thereon, credited to a Participant. Deferral Credits shall be credited to
a Participant's Account as of the date the amounts deferred otherwise would have
become due or payable. Company Credits shall be credited at such times as the
Committee shall direct.
6.2. INVESTMENT OF ACCOUNTS. Amounts credited to a Participant's Account, other
than those described in Section 4.4, will be adjusted for gains and losses to
the same extent that equal amounts would have been adjusted if they had been
invested as directed by the Participant in the subfund or subfunds designated by
the Committee. Amounts described in Section 4.4 will be adjusted as set forth in
that section.
6.3. ASSUMPTION OF RISK. The Participant, by electing to make deferrals under
this Plan, assumes all risk in connection with any decrease in value of the
Participant's Account.
6.4. CHARGES AGAINST ACCOUNTS. There shall be charged against each Participant's
bookkeeping account any payments made to the Participant or the Participant's
Beneficiary in accordance with Section 5.
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SECTION 7
FUNDING
7.1. FUNDING. The Company and its Affiliates shall be responsible for paying all
benefits due hereunder. For the purpose of facilitating the payment of benefits
due hereunder, the Company may (but shall not be required to) establish and
maintain a grantor trust pursuant to an Agreement between the Company and a
trustee selected by the Company; provided, however, that any such grantor trust
must be structured so that it does not result in any federal income tax
consequences to any Participant until distributions under Section 5 are actually
received. The Company may contribute to a grantor trust thereby created such
amounts as it may from time to time determine.
7.2. CORPORATE OBLIGATION. Neither the officers nor any member of the Board of
Directors of the Company or any of its Affiliates in any way secures or
guarantees the payment of any benefit or amount which may become due and payable
hereunder to or with respect to any Participant. Each Participant and other
person entitled at anytime to payments hereunder shall look solely to the assets
of the Company and its Affiliates for such payments as an unsecured, general
creditor. Nothing herein shall be construed to give a Participant, Beneficiary
or any other person or persons any right, title, interest or claim in or to any
specific asset, fund, reserve, account or property of any kind whatsoever owned
by the Company or in which it may have any right, title or interest now or in
the future. After benefits shall have been paid to or with respect to a
Participant and such payment purports to cover in full the benefit hereunder,
such former Participant or other person or persons, as the case may be, shall
have no further right or interest in the other assets of the Company and its
Affiliates in connection with this Plan.
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SECTION 8
FORFEITURE OF BENEFITS
All unpaid benefits under this Plan accrued under Section 4.6 shall be
permanently forfeited if the Committee determines that the Participant, either
before or after the Participant's Termination of Employment or Disability, or
before the Participant's death:
(a) engaged in criminal or fraudulent conduct resulting in a hardship to
the Company or an Affiliate; or
(b) breached the Participant's written employment agreement with the
Company or an Affiliate.
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SECTION 9
ADMINISTRATION
9.1. AUTHORITY. The Plan shall be administered by the Committee, which shall
have full discretionary power and authority to administer and interpret the Plan
and to determine all factual and legal questions under the Plan, including but
not limited to the entitlement of Participants and Beneficiaries, and the amount
of their respective interests. Except where necessary to comply with applicable
corporate or securities law, or applicable rules of the New York Stock Exchange
(e.g., with respect to executive officers), the Committee may delegate or
redelegate to one or more persons, jointly or severally, and whether or not such
persons are members of the committee or employees of the Company, such functions
assigned to the Committee hereunder as it may from time to time deem advisable.
Until withdrawn or redelegated by the Committee, all of the Committee's
delegable power and authority under this Section 9.1 shall be deemed delegated
to the Company's Vice President in charge of executive compensation, excluding
only the power and authority to act in such a way as would materially increase
the cost of the Plan.
9.2. LIABILITY. No member of the Committee and no director or member of the
management of the Company or its Affiliates shall be liable to any persons for
any actions taken under the Plan, or for any failure to effect any of the
objective or purposes of the Plan, by reason of insolvency or otherwise.
9.3. PROCEDURES. The Committee may from time to time adopt such rules and
procedures as it deems appropriate to assist in the administration of the Plan.
9.4. CLAIM FOR BENEFITS. No employee or other person shall have any claim or
right to payment of any amount hereunder until payment has been authorized and
directed by the Committee.
9.5. CLAIMS PROCEDURE. Until modified by the Committee, the claims procedure set
forth in this Section 9.5 shall be the claims procedure for the resolution of
disputes and disposition of claims arising under the Plan.
9.5.1. ORIGINAL CLAIM. Any employee, former employee, or Beneficiary of
such employee or former employee may, if the employee, former employee or
Beneficiary so desires, file with the Committee a written claim for benefits
under the Plan. Within ninety (90) days after the filing of such a claim, the
Committee shall notify the claimant in writing whether the claim is upheld or
denied in whole or in part or shall furnish the claimant a written notice
describing specific special circumstances requiring a specified amount of
additional time (but not more than one hundred eighty (180) days from the date
the claim was filed) to reach a decision on the claim. If the claim is denied in
whole or in part, the Committee shall state in writing:
(a) the specific reasons for the denial,
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(b) the specific references to the pertinent provisions of this Plan on
which the denial is based,
(c) a description of any additional material or information necessary for
the claimant to perfect the claim and an explanation of why such
material or information is necessary, and
(d) an explanation of the claims review procedure set forth in this
Section.
9.5.2. CLAIMS REVIEW PROCEDURE. Within sixty (60) days after receipt of
notice that the claim has been denied in whole or in part, the claimant may file
with the Committee a written request for a review and may, in conjunction
therewith, submit written issues and comments. Within sixty (60) days after the
filing of such a request for review, the Committee shall notify the claimant in
writing whether, upon review, the claim was upheld or denied in whole or in part
or shall furnish the claimant a written notice describing specific special
circumstances requiring a specified amount of additional time (but not more than
one hundred twenty days (120) from the date the request for review was filed) to
reach a decision on the request for review.
9.5.3. GENERAL RULES.
(a) No inquiry or question shall be deemed to be a claim or a request for
a review of a denied claim unless made in accordance with the claims
procedure. The Committee may require that any claim for benefits and
any request for a review of a denied claim be filed on forms to be
furnished by the Committee upon request.
(b) All decisions on original claims shall be made by the Committee and
requests for a review of denied claims shall be made by the Committee.
(c) The Committee may, in its discretion, hold one or more hearings on a
claim or a request for a review of a denied claim.
(d) Claimants may be represented by a lawyer or other representative at
their own expense, but the Committee reserves the right to require the
claimant to furnish written authorization. A claimant's representative
shall be entitled to copies of all notices given to the claimant.
(e) The decision of the Committee on an original claim or on a request for
a review of a denied claim shall be served on the claimant in writing.
If a decision or notice is not received by a claimant within the time
specified, the claim or request for a review of a denied claim shall
be deemed to have been denied.
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(f) Prior to filing a claim or a request for a review of a denied claim,
the claimant or the claimant's representative shall have a reasonable
opportunity to review a copy of this Plan Statement and all other
pertinent documents in the possession of the Company and its
Affiliates.
9.6. PAYMENTS UPON IMPOSITION OF FEDERAL OR STATE TAXES. If any Participant is
determined to be subject to federal or state income tax on any amount accrued on
his or her behalf under this Plan prior to the time of payment hereunder,
federal or state taxes attributable to the amount determined to be so taxable
shall be distributed by the Plan to such Participant. An amount accrued on his
or her behalf under this Plan shall be determined to be subject to federal
income tax upon the earliest of:
(i) a final determination by the United States Internal Revenue
Service addressed to the Participant which is not appealed to the
courts;
(ii) a final determination by the United States Tax Court or any other
Federal Court affirming any such determination by the Internal
Revenue Service; or
(iii) an opinion by the Tax Counsel of the Company, addressed to the
Company that, by reason of Treasury Regulations, amendments to
the Internal Revenue Code, published Internal Revenue Service
rulings, court decisions or other substantial precedent, amounts
accrued on a Participant's behalf hereunder are subject to
federal or state income tax prior to payment.
The Company shall undertake at its sole expense to defend any tax claims
described herein which are asserted by the Internal Revenue Service or by any
state revenue authority against any Participant, including attorney fees and
costs of appeal, and shall have the sole authority to determine whether or not
to appeal any determination made by the Internal Revenue Service, by any state
revenue authority or by a lower court. The Company also agrees to reimburse any
Participant for any interest or penalties in respect of federal or state tax
claims hereunder upon receipt of documentation of same.
9.7. LEGAL FEES. If the Company does not pay the benefits required under the
terms of the Plan for reasons other than the insolvency of the Company, the
Company agrees to reimburse any Participant for all legal fees incurred in
enforcing his or her claim to benefits under the Plan.
9.8. ERRORS IN COMPUTATIONS. The Committee shall not be liable or responsible
for any error in the computation of any benefit payable to or with respect to
any Participant resulting from any misstatement of fact made by the Participant
or by or on behalf of any Beneficiary to whom such benefit shall be payable,
directly or indirectly, to the Committee, and used by the Committee in
determining the benefit. The Committee shall not be obligated or required to
increase the benefit payable to or with respect to such Participant which, on
discovery of the misstatement, is found to be
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understated as a result of such misstatement of the Participant. However, the
benefit of any Participant which is overstated by reason of any such
misstatement or any other reason shall be reduced to the amount appropriate in
view of the truth (and to recover any prior overpayment).
SECTION 10
MISCELLANEOUS
10.1. NOT AN EMPLOYMENT CONTRACT. This Plan is not and shall not be deemed to
constitute a contract of employment between the Company and any employee or
other person, nor shall anything herein contained be deemed to give any employee
or other person any right to be retained in the Company's employ or in any way
limit or restrict the Company's right or power to discharge any employee or
other person at any time and to treat him without regard to the effect which
such treatment might have upon the employee as a Participant in the Plan.
10.2. NONTRANSFERABILITY. A Participant's rights and interest under the Plan,
including amounts payable, may not be assigned, alienated, pledged or
transferred except, in the event of a Participant's death to his Beneficiary. No
benefit payable under this Plan shall be subject to attachment, garnishment,
execution following judgment or other legal process before actual payment to the
Participant or Beneficiary.
10.3. TAX WITHHOLDING. The Company shall withhold the amount of any federal,
state or local income tax or other tax required to be withheld by the Company
under applicable law with respect to any amount payable under the Plan. Any cash
payable in lieu of fractional shares shall be applied to the payment of tax
withholding. The Participant shall not be liable for any tax withholding.
10.4. EXPENSES. All expenses of administering the Plan shall be borne by the
Company.
10.5. GOVERNING LAW. Except to the extent that federal law is controlling, the
Plan shall be construed and enforced in accordance with and governed by the laws
of the State of Minnesota.
10.6. AMENDMENT AND TERMINATION. The Company reserves the power to unilaterally
amend this Plan at any time, either prospectively or retroactively or both by
action of the Committee. The Committee may likewise terminate or curtail the
benefits of this Plan both with regard to persons expecting to receive benefits
in the future and persons already receiving benefits at the time of such action;
provided, however, that the Committee may not amend or terminate the Plan with
respect to benefits that have accrued and are vested pursuant to Section 4 in
any manner that reduces the amount of such benefits or alters the effect of any
participant election previously filed with the Company. No modification of the
terms of this Plan shall be effective unless it is in writing and signed on
behalf of the Company by a person authorized to execute such writing. No oral
representation concerning the interpretation or effect of this Plan shall be
effective to amend the Plan.
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10.7. RULES OF INTERPRETATION. The titles given to the various sections of this
Plan are inserted for convenience of reference only and are not part of this
Plan, and they shall not be considered in determining the purpose, meaning or
intent of any provision hereof. This Plan shall be construed and this Plan shall
be administered to create an unfunded plan providing deferred compensation to a
select group of management or highly compensated employees so that it is exempt
from the requirements of Parts 2, 3 and 4 of Title I of ERISA and qualifies for
a form of simplified, alternative compliance with the reporting and disclosure
requirements of Part 1 of Title I of ERISA.
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