EXHIBIT 10.29
Mykrolis Corporation 2002 Deferred Compensation Plan for
Senior Management
MYKROLIS CORPORATION
2002 DEFERRED COMPENSATION PLAN
FOR SENIOR MANAGEMENT
Effective January 1, 2002
TABLE OF CONTENTS
Page
ARTICLE 1. INTRODUCTION .............................................. 53
1.1. Purpose of Plan ........................................... 53
1.2. Status of Plan ............................................ 53
ARTICLE 2. DEFINITIONS ............................................... 44
2.1. "Account" ................................................. 44
2.2. "Bonus" ................................................... 45
2.3. "Code" .................................................... 44
2.4. "Company" ................................................. 44
2.5. "Compensation" ............................................ 53
2.6. "Disability" .............................................. 54
2.7. "Effective Date" .......................................... 54
2.8. "Elective Deferral" ....................................... 54
2.9. "Eligible Employee" ....................................... 54
2.10. "ERISA" ................................................... 54
2.11. "Investment Fund" ......................................... 54
2.12. "Participant" ............................................. 54
2.13. "Plan" .................................................... 54
2.14. "Plan Administrator" ...................................... 54
2.15. "Plan Year" ............................................... 54
ARTICLE 3. PARTICIPATION ............................................. 54
3.1. Commencement of Participation .....Error! Bookmark not defined .
3.2. Continued Participation ................................... 55
3.3. Termination of Participation .............................. 55
ARTICLE 4. ELECTIVE DEFERRALS ........................................ 55
4.1. Bonus Deferrals ........................................... 55
4.2. Compensation Deferrals .................................... 55
ARTICLE 5. ACCOUNTS .................................................. 56
5.1. Accounts .................................................. 56
5.2. Investment Experience ..................................... 56
5.3. Payments .................................................. 56
5.4. Vesting ................................................... 56
ARTICLE 6. PAYMENTS .................................................. 57
6.1. Distribution Events ....................................... 57
6.2. Hardship Withdrawals ...................................... 57
6.3. Other Withdrawals ......................................... 57
6.4. Beneficiary Designation ................................... 57
6.5. Form of Payment ........................................... 57
ARTICLE 7. ADMINISTRATION ............................................ 58
7.1. Plan Administrator; Interpretation ........................ 58
7.2. Claims Procedure .......................................... 58
7.3. Indemnification of Plan Administrator ..................... 59
ARTICLE 8. AMENDMENT AND TERMINATION ................................. 60
8.1. Amendments; Termination ................................... 60
8.2. Existing Rights ........................................... 60
8.3. Assignment ................................................ 60
ARTICLE 9. MISCELLANEOUS ............................................. 60
9.1. No Funding ................................................ 60
9.2. Nonassignability .......................................... 60
9.3. Receipt and Release ....................................... 60
9.4. Government Regulations .................................... 61
9.5. Governing Law ............................................. 61
9.6. Headings and Subheadings .................................. 61
MYKROLIS CORPORATION
2002 DEFERRED COMPENSATION PLAN FOR SENIOR MANAGEMENT
Article 1 INTRODUCTION
1.1 Purpose of Plan. The Company has adopted the Plan set forth herein to
provide a means by which certain designated employees may elect to defer
designated portions of their annual Bonuses and/or their annual
Compensation.
1.2 Status of Plan. The Plan is intended to be "a plan which is unfunded and
is maintained by an employer primarily for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees" within the meaning of sections 201(2), 301(a)(3),
401(a)(1), and 4021(b)(6) of ERISA, and shall be interpreted and
administered to the extent possible in a manner consistent with that
intent.
Article 2 DEFINITIONS
The following terms when used in this Plan with initial capital letters shall
have the meanings assigned to them below. Except where the context otherwise
requires, words imparting the singular number shall include the plural number
and vice versa, words denoting any gender shall include all genders and words
denoting persons shall include bodies corporate and vice versa:
2.1. "Account" means, for each Participant, the account (including any
sub-accounts) established for his or her benefit under the Plan, which
shall reflect the Elective Deferrals hereunder and the hypothetical
investment experience credited thereto under Section 5.2.
2.2. "Bonus" means, for each Participant, the amount of annual bonus for a
Plan Year that is paid after the end of the Plan Year under the Mykrolis
Incentive Plan.
2.3. "Code" means the Internal Revenue Code of 1986, as amended from time to
time. Reference to any section or subsection of the Code includes
reference to any comparable or succeeding provisions of any legislation
which amends, supplements or replaces such section or subsection.
2.4. "Company" means Mykrolis Corporation and those affiliates of Mykrolis
Corporation set forth on Schedule A as it may be supplemented from time
to time in accordance with Section 7.1 below. Where several affiliated
companies are adopting the Plan, "Company" means each such affiliated
company as to its own employees, but for purposes of Article 8 shall mean
only Mykrolis Corporation.
2.5. "Compensation" means gross compensation for the Plan Year including that
which is paid to the Eligible Employee for the Plan Year and that which
would have been paid to the Eligible Employee for the Plan Year but for a
deferral election made by the Eligible Employee under the Mykrolis
Corporation Savings and Investment Plan or under any nonqualified
deferred compensation plan of Mykrolis Corporation, other than a Bonus.
2.6. "Disability" means eligibility to receive long-term disability benefits
under the Company's long-term disability plan.
2.7. "Effective Date" means January 1, 2002, subject to the approval of the
Plan by the Board of Directors of Mykrolis Corporation, which approval
may be given before or after such date.
2.8. "Elective Deferral" means the portion of a Bonus which is deferred by a
Participant under Section 4.1 or portion of Compensation which is
deferred by a Participant under Section 4.2.
2.9. "Eligible Employee" means each individual selected by the Plan
Administrator for eligibility from among the group of highly compensated
or managerial employees of the Company.
2.10. "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time. Reference to any section or subsection of
ERISA includes reference to any comparable or succeeding provisions of
any legislation which amends, supplements or replaces such section or
subsection.
2.11. "Investment Fund" means any investment fund, mutual fund or other
security, including, without limitation, the common stock of Mykrolis
Corporation, that the Plan Administrator selects, from time to time, to
serve as a hypothetical investment for Elective Deferrals under the Plan.
1.12. "Participant" means any individual who participates in the Plan in
accordance with Article 3.
2.13. "Payment Date" means the date an Elective Deferral is to be paid to the
Participant (or in the case of his death, the Participant's designated
beneficiary) as elected in the Participant's deferral election under
Article 4.
2.14. "Plan" means the Mykrolis Corporation 2002 Deferred Compensation Plan for
Senior Management as set forth herein and all subsequent amendments
hereto.
2.15. "Plan Administrator" means Mykrolis Corporation or the person, persons or
entity otherwise designated by Mykrolis Corporation to administer the
Plan.
2.16. "Plan Year" means the calendar year.
Article 3 PARTICIPATION
3.1. Commencement of Participation. Any individual who is an Eligible Employee
on or after the Effective Date and who has elected to defer part of his
or her Bonus in accordance with Section 4.1 or to defer part of his or
her annual Compensation under Section 4.2 shall become a Participant on
the date such Elective Deferral election is made.
3.2. Continued Participation. Subject to Section 3.3, an individual who has
become a Participant in the Plan shall continue to be a Participant so
long as any amount remains credited to his or her Account.
3.3. Termination of Participation. The Plan Administrator may terminate a
Participant's participation in the Plan for any reason, including but not
limited to the Plan Administrator's determination that such termination
is necessary in order to maintain the Plan as a "plan which is unfunded
and is maintained by an employer primarily for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees" within the meaning of sections 201(2), 301(a)(3),
401(a)(1), and 4021(b)(6) of ERISA. Amounts credited to a Participant's
Account shall be paid out to the Participant in a single lump sum cash
payment as soon as reasonably practical following termination of
participation hereunder.
Article 4. ELECTIVE DEFERRALS
Bonus Deferrals.
4.1. In general. An Eligible Employee may elect to defer hereunder a
designated portion (but not less than $5,000) of his or her Bonus to be
earned with respect to a Plan Year, by filing a written election with the
Plan Administrator prior to the first day of October of the Plan Year in
which such Bonus is to be earned; provided, however, with respect to an
unearned Bonus payable during the first Plan Year, such elections shall
be filed with the Plan Administrator by October 10, 2001. The deferred
amount shall be credited to the Participant's Account as of the date such
Bonus would otherwise have been paid to the Participant.
4.2. Nature of Election. Each election under this Section 4.1 for a Plan Year
shall be made on a form approved or prescribed by the Plan Administrator
and shall apply only to a Bonus paid after the date the election form is
completed and filed with the Plan Administrator. The election form shall
specify in whole percentages or in a dollar figure the amount of Bonus to
be deferred. A Participant may revoke his or her deferral election as of
the first (1st) day of October of any Plan Year which follows such
revocation by giving written notice to the Plan Administrator before that
day (or any such earlier date as the Plan Administrator may prescribe). A
Participant may change his or her deferral election at any time, but such
new deferral election shall become effective no earlier than the first
(1st) day of October of the Plan Year following the making of such
election. Any such deferral election shall continue to be effective until
revoked or changed pursuant to this paragraph.
Compensation Deferrals.
4.3. In general. An Eligible Employee may elect to defer hereunder a
designated portion (but not less than $5,000) of his or her Compensation
to be earned with respect to a Plan Year, by filing a written election
with the Plan Administrator prior to the fifteenth (15th) day of December
prior to the Plan Year in which such Compensation is to be earned. An
individual who first becomes an Eligible Employee on or after the first
(1st) day of any Plan Year may elect, within thirty (30) days of becoming
an Eligible Employee, to defer a portion of his or her
Compensation to be earned during the remainder of the Plan Year and after
the written election is filed with the Plan Administrator. An Elective
Deferral hereunder for a Plan Year shall not exceed 50% of the
Participant's Compensation for the Plan Year. The deferred amounts shall
be credited to the Participant's Account as of the date such Compensation
would otherwise have been paid to the Participant under the Company's
payroll system.
4.4. Nature of Election. Each election under this Section 4.2 for a Plan Year
(or the balance of a Plan Year) shall be made on a form approved or
prescribed by the Plan Administrator and shall apply only to Compensation
paid after the date the election form is completed and filed with the
Plan Administrator. The election form shall specify in whole percentages
or in a dollar figure the amount of Compensation to be deferred. A
Participant may revoke his or her deferral election as of the first day
of any Plan Year which follows such revocation by giving written notice
to the Plan Administrator before that day (or any such earlier date as
the Plan Administrator may prescribe). A Participant may change his or
her deferral election at any time, but such new deferral election shall
become effective no earlier than the first day of the Plan Year following
the making of such election. Any such deferral election shall continue to
be effective until revoked or changed pursuant to this paragraph.
Article 5. ACCOUNTS
5.1. Accounts. The Plan Administrator shall establish an Account for each
Participant reflecting the amounts deferred under Article 4, investment
experience as determined under Section 5.2, and any adjustments to the
Account under Section 5.3 to reflect payments. If directed by the
Company, the Plan Administrator shall keep separate sub-accounts for each
Bonus deferral and each Plan Year's Compensation deferral. Subject to
Sections 5.2 and 9.1, the Company shall treat the amount of Elective
Deferrals for a period as invested in the applicable Investment Funds as
soon as practicable after the date as of which such Elective Deferrals
are credited to the Accounts. The Plan Administrator shall periodically
and not less frequently than annually provide the Participant with a
statement of his or her Account, including any sub-accounts that have
been established hereunder.
5.2. Investment Experience. Each Participant's Account shall reflect the
investment experience that would occur if the Account were invested in
one or more of the Investment Funds in the proportions selected by the
Participant as adjusted by the Participant from time to time in the
manner permitted by the Plan Administrator. The Company shall not be a
guarantor of any specified amount of investment return.
5.3. Payments. Each Participant's Account shall be reduced by the amount of
any payment made to or on behalf of the Participant under Article 6 as of
the date such payment is made.
5.4. Vesting. A Participant will at all times be 100% vested in his or her
Account.
Article 6. PAYMENTS
6.1. Distribution Events. Each Participant shall specify as part of his or her
deferral election under either Section 4.1(b) or Section 4.2(b) the date
on which the Elective Deferral and the applicable investment experience,
shall be distributed and the form of payment of such distributions.
Distributions may be made at Participant's retirement, termination of
employment, or Disability, or after a term of years (not less than three
years) selected by the Participant at the time of the deferral election,
for hardship as defined in Section 6.2, or for other reasons subject to
the restrictions of Section 6.3. A Participant may irrevocably elect to
postpone the Payment Date to a later date provided that such election is
made at least twenty-four (24) months prior to the original Payment Date,
and provided that such election is in writing, is filed in a manner
acceptable to the Plan Administrator, and complies with such other
restrictions that are imposed generally by the Plan Administrator on such
postponements.
6.2. Hardship Withdrawals. Notwithstanding the foregoing, if at any time prior
to the Participant's Payment Date, the Participant suffers an unexpected
financial emergency, the Participant may petition the Plan Administrator
for a withdrawal (a "hardship withdrawal") in an amount not to exceed the
lesser of the then balance of the Account or the amount needed to meet
the emergency. The Plan Administrator may require a Participant who is
seeking a hardship withdrawal to provide satisfactory evidence of the
nature and extent of the emergency. Hardship withdrawals shall be made
solely in the discretion of the Plan Administrator.
6.3. Other Withdrawals. A Participant may withdraw from his Account any amount
of his or her Elective Deferrals that have been deferred for at least
thirty-six (36) months provided that he or she shall forfeit ten percent
(10%) of the amount of withdrawal and shall be disqualified from making
any deferral elections during the following Plan Year.
6.4. Beneficiary Designation. A Participant shall designate a beneficiary to
receive any amounts remaining in the Participant's Account after his or
her death. Such designation shall be made in writing on a form approved
or prescribed by the Plan Administrator, and may be changed by the
Participant at any time. If there is no such designation or no designated
beneficiary survives the Participant, payment shall be made to the
Participant's estate.
6.5. Form of Payment. All distributions under the Plan to a Participant who
retires from the Company after age fifty-five (55) and after at least 10
years of service and all distributions to be paid after a term of years
will be made in the form of a single lump sum cash payment unless the
Participant irrevocably elects, at the time of making a deferral election
under Article 4, to receive payment of his or her Account or an Elective
Deferral in annual cash installments over the period specified in such
election. An installment payment election shall not be effective as to
his or her Account or an Elective Deferral which, at the time installment
payments are to commence, has a balance of $10,000 or less. Where an
Account or an Elective Deferral is payable in installments over a period
of years, each
annual installment shall be determined by dividing the balance of the
Account or the Elective Deferral remaining to be distributed by the
number of remaining installments. Accounts for Elective Deferrals paid in
installments shall continue to be adjusted for investment experience
under Section 5.2 until all payments have been made. Distributions on
account of termination of employment other than retirement (as described
above), death or Disability, for hardship withdrawals under Section 6.2,
and for other withdrawals under Section 6.3, shall be paid in a lump sum
cash payment only. The form of payment for any Account or Elective
Deferral may not be changed by the Participant within twelve (12) months
prior to the Payment Date applicable to such Account or Elective
Deferral.
Article 7. ADMINISTRATION
7.1. Plan Administrator; Interpretation. The Plan Administrator shall oversee
the administration of the Plan. The Plan Administrator shall have
complete discretionary control and authority to administer all aspects of
the Plan, including without limitation the power to appoint agents and
counsel, and to determine the rights and benefits and all claims, demands
and actions arising out of the provisions of the Plan of any Participant,
beneficiary, deceased Participant, or other person having or claiming to
have any interest under the Plan, in a manner consistent with Section
7.2. The Plan Administrator shall have the authority to add affiliates of
Mykrolis Corporation to Schedule A as participating companies under the
Plan. The Plan Administrator shall have the exclusive discretionary power
to interpret the Plan and to decide all matters under the Plan. Such
interpretation and decision shall be final, conclusive and binding on all
Participants and any person claiming under or through any Participant, in
the absence of clear and convincing evidence that the Plan Administrator
acted arbitrarily and capriciously. Any individual serving as Plan
Administrator, or on a committee acting as Plan Administrator, who is a
Participant will not vote or act on any matter relating solely to himself
or herself. When making a determination or calculation, the Plan
Administrator shall be entitled to rely on information furnished by a
Participant, a beneficiary, or any other person or entity. The Plan
Administrator shall be deemed to be the plan administrator with
responsibility for complying with any reporting and disclosure
requirements of ERISA.
7.2. Claims Procedure.
(a) In general. If any person believes he or she is being denied any
rights or benefits under the Plan, such person may file a claim
in writing with the Plan Administrator. If any such claim is
wholly or partially denied, the Plan Administrator will notify
such person of its decision in writing. Such notification will
contain (i) specific reasons for the denial, (ii) specific
reference to pertinent plan provisions, (iii) a description of
any additional material or information necessary for such person
to perfect such claim and an explanation of why such material or
information is necessary and (iv) information as to the steps to
be taken if the person wishes to submit a request for review.
Such notification will be given within 90 days after the claim is
received by the Plan Administrator (or within 180 days, if special
circumstances require an extension of time for processing the claim,
and if written notice of such extension and circumstances is given to
such person within the initial 90 day period). If such notification is
not given within such period, the claim will be considered denied as of
the last day of such period and such person may request a review of his
or her claim.
(b) Appeals. Within 60 days after the date on which a person receives a
written notice of a denied claim (or, if applicable, within 60 days
after the date on which such denial is considered to have occurred)
such person (or his or her duly authorized representative) may (i) file
a written request with the Plan Administrator for a review of his or
her denied claim and of pertinent documents and (ii) submit written
issues and comments to the Plan Administrator. The Plan Administrator
will notify such person of its decision in writing. Such notification
will be written in a manner calculated to be understood by such person
and will contain specific reasons for the decision as well as specific
references to pertinent plan provisions. The decision on review will be
made within 60 days after the request for review is received by the
Plan Administrator (or within 120 days, if special circumstances
require an extension of time for processing the request, such as an
election by the Plan Administrator to hold a hearing, and if written
notice of such extension and circumstances is given to such person
within the initial 60 day period). If the decision on review is not
made within such period, the claim will be considered denied.
7.3. Indemnification of Plan Administrator. The Company agrees to indemnify and
to defend to the fullest extent permitted by law any director, officer or
employee of the Company or any affiliated company who serves as the Plan
Administrator or as a member of a committee appointed to serve as Plan
Administrator, or who assists the Plan Administrator in carrying out its
duties as part of his or her employment (including any such individual who
formerly served in any such capacity) against all liabilities, damages,
costs and expenses (including attorneys' fees and amounts paid in
settlement of any claims approved by the Company) occasioned by any act or
omission to act in connection with the Plan, if such act or omission is in
good faith.
Article 8. AMENDMENT AND TERMINATION
8.1. Amendments; Termination. The Company shall have the right by vote of its
Board of Directors to amend the Plan from time to time and to terminate
the Plan at any time, subject to Section 8.3.
8.2. Existing Rights. No amendment or termination of the Plan shall, without
the written consent of the affected Participant, reduce the balance of a
Participant's Account, but the Company reserves the right to change the
Investment Funds used to measure investment experience under Section 5.2
so long as such change does not alter the amount of investment experience
credited to a Participant's Account as of the date of the change.
8.3. Assignment. The rights and obligations of the Company shall inure to the
benefit of and shall be binding upon its successors and assigns.
Article 9. MISCELLANEOUS
9.1. No Funding. The Plan constitutes a mere promise by the Company to make
future cash benefit payments to Participants and beneficiaries, and
Participants and beneficiaries shall have the status of general unsecured
creditors of the Company. Any Accounts established pursuant to the Plan
shall remain the property of the Company until distributed, and nothing in
the Plan will be construed to create a trust or to obligate the Company or
any other person to segregate a fund, purchase an insurance contract, or
in any other way currently to fund the future payment of any benefits
hereunder, nor will anything herein be construed to give any employee or
any other person rights to any specific assets of the Company or of any
other person. The Company may, in its sole discretion, create a grantor
trust to pay its obligations hereunder, but shall have no obligation to do
so. In all events, it is the intent of the Company that the Plan be
treated as unfunded for tax purposes and for purposes of Title I of ERISA.
9.2. Nonassignability. None of the benefits, payments, proceeds or claims of
any Participant or beneficiary shall be subject to any claim of any
creditor of any Participant or beneficiary and, in particular, the same
shall not be subject to attachment or garnishment or other legal process
by any creditor of such Participant or beneficiary, nor shall any
Participant or beneficiary have any right to alienate, anticipate,
commute, pledge, encumber, sell, transfer or assign any of the benefits or
payments or proceeds which he may expect to receive, contingently or
otherwise, under the Plan.
9.3. Receipt and Release. Any payment to any Participant or beneficiary in
accordance with the provisions of the Plan shall, to the extent thereof,
be in full satisfaction of all claims against the Company and the Plan
Administrator under the Plan, and the Plan Administrator may require such
Participant or beneficiary, as a condition precedent to such payment, to
execute a receipt and release to such effect. If any Participant or
beneficiary is determined by the Plan Administrator to be incompetent by
reason of physical or mental disability (including minority) to give a
valid receipt and release, the Plan Administrator may cause the payment
or payments becoming due to such person to be made to another person for
his or her benefit without responsibility on the part of the Plan
Administrator or the Company to follow the application of such funds.
9.4. Government Regulations. It is intended that the Plan will comply with all
applicable laws and government regulations, and the Company shall not be
obligated to perform an obligation hereunder in any case where, in the
opinion of the Company's counsel, such performance would result in the
violation of any law or regulation.
9.5. Governing Law. The Plan shall be construed, administered, and governed in
all respects under and by the laws of the Commonwealth of Massachusetts.
If any provision shall be held by a court of competent jurisdiction to be
invalid or unenforceable, the remaining provisions hereof shall continue
to be fully effective.
9.6. Headings and Subheadings. Headings and subheadings in the Plan are
inserted for convenience only and are not to be considered in the
construction of the provisions hereof.
In Witness Whereof, Mykrolis Corporation has caused the Plan to be executed
by its duly authorized officer as of the 1/st/ day of January, 2002.
MYKROLIS CORPORATION
By: /s/ Peter W. Walcott
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Title: Vice President & General Counsel
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SCHEDULE A
Participating Companies
Mykrolis Asia Limited