(Mark One) | ||
þ
|
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 |
|
For the quarterly period ended September 30,
2011
|
||
or
|
||
o
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 |
|
For the transition period from to
|
Indiana
(State or Other Jurisdiction of Incorporation or Organization) |
45-2080495
(I.R.S. Employer Identification Number) |
Large accelerated filer o | Accelerated filer o | Non-accelerated filer þ | Smaller reporting company o |
2
CONDENSED
COMBINED INCOME STATEMENTS
(UNAUDITED)
(IN MILLIONS)
Three Months
Nine Months
FOR THE PERIODS ENDED SEPTEMBER 30
2011
2010
2011
2010
$
939
$
806
$
2,800
$
2,267
574
497
1,719
1,412
365
309
1,081
855
215
183
643
517
23
18
73
53
46
67
2
1
2
8
79
107
296
277
1
2
4
3
5
82
110
299
277
5
19
72
45
$
77
$
91
$
227
$
232
3
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CONDENSED
COMBINED BALANCE SHEETS
(IN MILLIONS)
September 30,
December 31,
2011
2010
(Unaudited)
$
184
$
131
753
690
437
389
50
79
56
47
1,480
1,336
442
454
1,633
1,437
519
416
77
92
$
4,151
$
3,735
$
283
$
309
381
340
5
669
649
1,202
4
163
163
77
99
89
101
2,200
1,016
1,649
2,361
302
358
1,951
2,719
$
4,151
$
3,735
4
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CONDENSED
COMBINED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(IN MILLIONS)
FOR THE NINE MONTHS ENDED SEPTEMBER
30
2011
2010
$
227
$
232
104
67
7
7
8
2
8
(7
)
(19
)
(58
)
(42
)
(40
)
(35
)
(31
)
10
14
(5
)
4
(14
)
22
17
252
226
(79
)
(44
)
(309
)
(981
)
9
1
2
(377
)
(1,024
)
(1,012
)
841
5
1,198
(9
)
182
841
(4
)
3
53
46
131
81
$
184
$
127
$
37
$
76
5
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CONDENSED
COMBINED STATEMENT OF PARENT COMPANY EQUITY
(UNAUDITED)
(IN MILLIONS)
Accumulated
Total
Parent
Other
Parent
Company
Comprehensive
Company
NINE MONTHS ENDED SEPTEMBER 30
Investment
Income
Equity
$
2,361
$
358
$
2,719
(939
)
(939
)
227
227
1
1
(57
)
(57
)
171
$
1,649
$
302
1,951
6
Table of Contents
(Unaudited)
NOTE 1
BACKGROUND AND
BASIS OF PRESENTATION
7
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8
Table of Contents
Three Months Ended
Nine Months Ended
September 30,
September 30,
(in millions, except per share data)
2011
2010
2011
2010
$
77
$
91
$
227
$
232
184.6
184.6
184.6
184.6
$
0.42
$
0.49
$
1.23
$
1.26
9
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NOTE 2
RECENT ACCOUNTING
PRONOUNCEMENTS
10
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NOTE 3
ACQUISITIONS
11
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Purchase Price
$309
15
15
9
192
124
17
(63)
$
309
12
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NOTE 4
SEPARATION
COSTS
Three Months
Nine Months
(in millions)
$
8
$
8
9
18
10
17
4
8
15
16
46
67
(9
)
5
(12
)
(18
)
$
25
$
54
(a)
During the third quarter, we
recorded an impairment charge of $8 million on one of our
facilities in China within our Applied Water segment. Prior to
the separation this was a shared facility among certain Xylem
and ITT businesses and in connection with the separation, the
removal of certain ITT operations triggered an impairment
evaluation. The fair value of the applicable assets was
calculated using the cost approach.
(b)
In the third quarter of 2011, we
revised our estimate of certain tax-related separation costs to
be incurred. This adjustment resulted in a $9 million net
credit (income) for tax-related separation costs during the
third quarter of 2011.
NOTE 5
INCOME
TAXES
13
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NOTE 6
INVENTORIES,
NET
September 30,
December 31,
2011
2010
(in millions)
$
177
$
166
37
32
223
191
$
437
$
389
NOTE 7
PLANT, PROPERTY
AND EQUIPMENT, NET
September 30,
December 31,
2011
2010
(in millions)
$
21
$
20
205
200
585
567
149
129
80
81
48
51
20
15
1,108
1,063
(666
)
(609
)
$
442
$
454
14
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NOTE 8
GOODWILL AND
OTHER INTANGIBLE ASSETS, NET
Water
Infrastructure
Applied Water
Total
$
873
$
564
$
1,437
192
192
5
(1
)
4
$
1,070
$
563
$
1,633
September 30, 2011
Gross
Gross
December 31, 2010
Carrying
Accumulated
Net
Carrying
Accumulated
Net
Amount
Amortization
Intangibles
Amount
Amortization
Intangibles
$
312
$
(45
)
$
267
$
270
$
(29
)
$
241
102
(21
)
81
68
(18
)
50
33
(11
)
22
33
(9
)
24
21
(15
)
6
21
(13
)
8
143
143
93
93
$
611
$
(92
)
$
519
$
485
$
(69
)
$
416
15
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$
9
33
33
31
31
29
September 30,
December 31,
2011
2010
(in millions)
$
182
$
175
42
37
35
38
47
21
13
12
62
57
$
381
$
340
September 30,
December 31,
2011
2010
(in millions)
$
5
$
600
600
4
4
(2
)
1,202
4
$
1,207
$
4
16
Table of Contents
(a)
The fair value of our Senior Notes
was primarily determined using prices for the identical security
obtained from an external pricing service, which is considered a
Level 2 input. As of September 30, 2011, the fair
value of our Senior Notes due 2016 was $611 million and the
fair value of our Senior Notes due 2021 was $604 million.
(b)
At September 30, 2011, the
unamortized discount is recognized as a reduction in the
carrying value of the Senior Notes in the Condensed Combined
Balance Sheets and is being amortized to interest expense in our
Condensed Combined Income Statements over the expected remaining
terms of the Senior Notes.
17
Table of Contents
Three Months Ended September 30
(in millions)
2011
2010
Total
Other
Total
Other
U.S.
Intl
Pension
Benefits
Total
U.S.
Intl
Pension
Benefits
Total
$
$
1
$
1
$
$
1
$
$
1
$
1
$
$
1
1
2
3
3
1
2
3
3
(1
)
(1
)
(2
)
(2
)
(1
)
(1
)
(1
)
1
1
1
$
1
$
2
$
3
$
$
3
$
$
3
$
3
$
$
3
Nine Months Ended September 30
(in millions)
2011
2010
Total
Other
Total
Other
U.S.
Intl
Pension
Benefits
Total
U.S.
Intl
Pension
Benefits
Total
$
1
$
3
$
4
$
$
4
$
1
$
2
$
3
$
$
3
3
6
9
9
3
5
8
8
(3
)
(1
)
(4
)
(4
)
(3
)
(3
)
(3
)
1
1
1
1
1
1
$
2
$
8
$
10
$
$
10
$
1
$
8
$
9
$
$
9
18
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NOTE 12
SHARE-BASED
PAYMENTS
NOTE 13
RELATED PARTY
TRANSACTIONS
19
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NOTE 14
SEGMENT
INFORMATION
20
Table of Contents
Three Months Ended September 30
(in millions)
Revenue
Operating Income
Operating Margin
2011
2010
2011
2010
2011
2010
$
584
$
488
$
87
$
73
14.9
%
14.9
%
368
331
37
$
40
10.0
%
12.0
%
(13
)
(13
)
(45
)
(6
)
$
939
$
806
$
79
$
107
8.4
%
13.3
%
Nine Months Ended September 30
(in millions)
Revenue
Operating Income
Operating Margin
2011
2010
2011
2010
2011
2010
$
1,737
$
1,308
$
245
$
175
14.1
%
13.4
%
1,108
1,000
133
132
12.0
%
13.2
%
(45
)
(41
)
(82
)
(30
)
$
2,800
$
2,267
$
296
$
277
10.6
%
12.2
%
Depreciation and
Capital Expenditures
Amortization
2011
2010
2011
2010
$
60
$
25
$
80
$
43
16
17
23
24
3
2
1
$
79
$
44
$
104
$
67
Total Assets
Sept 30,
Dec 31,
2011
2010
$
2,774
$
2,377
1,274
1,209
103
149
$
4,151
$
3,735
NOTE 15
CONTINGENCIES AND
OTHER LEGAL MATTERS
21
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22
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Nine Months Ended
September 30,
2011
2010
(in millions)
$
38
$
34
21
26
(25
)
(19
)
1
2
$
35
$
43
NOTE 16
SUBSEQUENT
EVENTS
23
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24
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25
Table of Contents
26
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Order growth of 19.3% over the prior year; organic orders were
up 9.0%
Revenue increase of 16.5% from 2010; organic revenue was up 6.5%
Completion of the YSI Incorporated (YSI)
acquisition, which contributed approximately $10 million of
revenue to the Water Infrastructure segment results.
27
Table of Contents
Adjusted net income of $102 million, an increase of
$11 million from 2010
Free cash flow generation of $235 million, up
$53 million from 2010
organic revenue and organic orders
defined as revenue and orders, respectively, excluding the
impact of foreign currency fluctuations, intercompany
transactions and contributions from acquisitions and
divestitures. Divestitures include revenue of insignificant
portions of our business that did not meet the criteria for
classification as a discontinued operation. The
period-over-period
change resulting from foreign currency fluctuations assumes no
change in exchange rates from the prior period.
adjusted net income defined as net income, adjusted
to exclude items that may include, but are not limited to,
significant charges or credits that impact current results but
are not related to our ongoing operations, unusual and
infrequent non-operating items and non-operating tax settlements
or adjustments. A reconciliation of adjusted net income is
provided below.
Three Months
Nine Months
Ended September 30,
Ended September 30,
(in millions, except per share data)
2011
2010
2011
2010
$
77
$
91
$
227
$
232
25
54
$
102
$
91
$
281
$
232
$
0.55
$
0.49
$
1.52
$
1.26
(a)
As a result on October 31,
2011, we had 184,570,429 shares of common stock outstanding
and this share amount is being utilized to calculate pro forma
earnings per share for all periods presented.
28
Table of Contents
operating expenses excluding separation costs
defined as operating expenses, adjusted to exclude costs
incurred in connection with the separation.
adjusted segment operating income defined as segment
operating income, adjusted to exclude costs incurred in
connection with the separation and adjusted segment
operating margin defined as adjusted segment operating
income divided by total segment revenue.
free cash flow defined as net cash provided by
operating activities less capital expenditures and other
significant items that impact current results which management
believes are not related to our ongoing operations and
performance. Our definition of free cash flow does not consider
certain non-discretionary cash payments, such as debt. The
following table provides a reconciliation of free cash flow for
the nine months ended September 30, 2011 and 2010.
(in millions)
2011
2010
$
252
$
226
(72
) (a)
(44
)
55
(b)
$
235
$
182
(a)
Represents capital expenditures as
reported in the Statement of Cash Flows, less capital
expenditures associated with the separation of $7 million
for the nine months ended September 30, 2011.
(b)
Separation costs allocated by ITT
have been treated as though they were settled in cash.
Three Months Ended
Nine Months Ended
(in millions)
September 30,
September 30,
2011
2010
Change
2011
2010
Change
$
939
$
806
16.5
%
$
2,800
$
2,267
23.5%
365
309
18.1
%
1,081
855
26.4%
38.9
%
38.3
%
60bp
38.6%
37.7
%
90bp
240
202
18.8
%
718
578
24.2%
25.6
%
25.1
%
50bp
25.6%
25.5
%
10bp
46
67
286
202
41.6
%
785
578
35.8%
79
107
(26.2
)%
296
277
6.9%
8.4
%
13.3
%
(490
)bp
10.6%
12.2
%
(160)bp
3
3
0.0
%
3
5
19
(73.7
)%
72
45
60.0%
6.3
%
16.7
%
(1040
)bp
24.0%
16.2
%
780bp
$
77
$
91
(15.4
)%
$
227
$
232
(2.2)%
29
Table of Contents
Three Months
Nine Months
Ended September 30
Ended September 30
$ Change
% Change
$ Change
% Change
$
806
$
2,267
52
6.5%
179
7.9%
42
5.2%
237
10.4%
39
4.8%
117
5.2%
133
16.5%
533
23.5%
$
939
$
2,800
Three Months Ended
Nine Months Ended
(in millions)
September 30,
September 30,
2011
2010
Change
2011
2010
Change
$
584
$
488
19.7
%
$
1,737
$
1,308
32.8%
368
331
11.2
%
1,108
1,000
10.8%
(13
)
(13
)
(45
)
(41
)
$
939
$
806
16.5
%
$
2,800
$
2,267
23.5%
30
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31
Table of Contents
Three Months Ended
Nine Months Ended
(in millions)
September 30,
September 30,
2011
2010
Change
2011
2010
Change
$
215
$
183
17.5%
$
643
$
517
24.4%
22.9
%
22.7
%
20bp
23.0
%
22.8
%
20bp
23
18
27.8%
73
53
37.7%
2.4
%
2.2
%
20bp
2.6
%
2.3
%
30bp
2
1
100%
2
8
(75.0)%
240
202
18.8%
718
578
24.2%
25.6
%
25.1
%
50bp
25.6
%
25.5
%
10bp
32
Table of Contents
Three Months
Nine Months
(in millions)
$
8
$
8
9
18
10
17
4
8
15
16
46
67
(9
)
5
(12
)
(18
)
$
25
$
54
(a)
During the third quarter, we
recorded an impairment charge of $8 million on one of our
facilities in China within our Applied Water segment. Prior to
the separation this was a shared facility among certain Xylem
and ITT businesses and as such, in connection with the
separation, the removal of certain ITT operations triggered an
impairment evaluation. The fair value of the applicable assets
were calculated using the cost approach.
(b)
In the third quarter of 2011, we
revised our estimate of certain costs to be incurred related to
tax-related separation costs. This adjustment resulted in a
$9 million net credit (income) for tax-related separation
costs during the third quarter of 2011.
Three Months Ended
Nine Months Ended
September 30,
September 30,
(in millions)
2011
2010
Change
2011
2010
Change
$
87
$
73
19.2
%
$
245
$
175
40.0
%
37
40
(7.5
)%
133
132
0.8
%
124
113
9.7
%
378
307
23.1
%
(45
)
(6
)
(82
)
(30
)
$
79
$
107
(26.2
)%
$
296
$
277
6.9
%
33
Table of Contents
34
Table of Contents
Nine Months Ended
September 30
2011
2010
(in millions)
$ 252
$ 226
(377
)
(1,024)
182
841
(4
)
3
$ 53
$ 46
35
Table of Contents
36
Table of Contents
Short-Term
Long-Term
Rating Agency
Ratings
Ratings
A-2
BBB
P-2
Baa2
F-2
BBB
37
Table of Contents
PAYMENTS DUE BY PERIOD
LESS THAN
CONTRACTUAL
OBLIGATIONS(1)
TOTAL
1 YEAR
1-3 YEARS
3-5 YEARS
5 YEARS+
$
176
$
48
$
67
$
32
$
29
67
64
3
42
3
9
5
25
$
285
$
115
$
79
$
37
$
54
(1)
In connection with the Spin-off,
on September 20, 2011 the Company issued $600 million
aggregate principal amount of 3.55% Senior Notes that will
mature on September 20, 2016 and $600 million
aggregate principal amount of 4.875% Senior Notes that will
mature on October 1, 2021. Interest on the notes accrues
from September 20, 2011. Interest on the 3.55% Senior Notes
is payable on March 20 and September 20 of each year, commencing
on March 20, 2012. Interest on the 4.875% Senior Notes is
payable on April 1 and October 1 of each year, commencing on
April 1, 2012. In addition, on the Distribution Date, a
revolving credit facility that provides for the availability of
$600 million through 2015 became effective.
38
Table of Contents
ITEM 3.
QUANTITATIVE
AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
ITEM 4.
CONTROLS
AND PROCEDURES
39
Table of Contents
ITEM 1.
Legal
Proceedings
ITEM 1A.
Risk
Factors
ITEM 2.
Unregistered
Sales of Equity Securities and Use of Proceeds
ITEM 3.
Defaults
Upon Senior Security
ITEM 4.
(Removed
and Reserved)
ITEM 5.
Other
Information
40
Table of Contents
ITEM 6.
EXHIBITS
41
Table of Contents
Exhibit
Number
Description
Location
(3
.1)
Amended and Restated Articles of Incorporation of Xylem Inc.
Incorporated by reference to Exhibit 3.1 of Xylem Inc.s
Form 8-K Current Report filed on October 13, 2011 (CIK No.
1524472, File
No. 1-35229).
(3
.2)
By-laws of Xylem Inc.
Incorporated by reference to Exhibit 3.2 of Xylem Inc.s
Form 8-K Current Report filed on October 13, 2011 (CIK No.
1524472, File
No. 1-35229).
(4
.1)
Indenture, dated as of September 20, 2011, between Xylem Inc.,
ITT Corporation, as initial guarantor, and Union Bank, N.A., as
trustee
Incorporated by reference to Exhibit 4.2 of ITT
Corporations Form 8-K Current Report filed on September
21, 2011 (CIK No. 216228, File
No. 1-5672).
(4
.2)
Form of Xylem Inc. 3.550% Senior Notes due 2016
Incorporated by reference to Exhibit 4.5 of ITT
Corporations Form 8-K Current Report filed on September
21, 2011 (CIK No. 216228, File
No. 1-5672).
(4
.3)
Form of Xylem Inc. 4.875% Senior Notes due 2021
Incorporated by reference to Exhibit 4.6 of ITT
Corporations Form 8-K Current Report filed on September
21, 2011 (CIK No. 216228, File
No. 1-5672).
(4
.4)
Registration Rights Agreement, dated as of September 20, 2011,
between Xylem Inc., ITT Corporation and J.P. Morgan
Securities LLC, RBS Securities Inc. and Wells Fargo Securities,
LLC as representatives of the Initial Purchasers
Incorporated by reference to Exhibit 4.8 of ITT
Corporations Form 8-K Current Report filed on September
21, 2011 (CIK No. 216228, File
No. 1-5672).
(10
.1)
Distribution Agreement, dated as of October 25, 2011, among ITT
Corporation, Exelis Inc. and Xylem Inc.
Incorporated by reference to Exhibit 10.1 of ITT
Corporations Form 10-Q Quarterly Report filed on October
28, 2011 (CIK No. 216228, File
No. 1-5672).
(10
.2)
Benefits and Compensation Matters Agreement, dated as of October
25, 2011, among ITT Corporation, Exelis Inc. and Xylem Inc.
Incorporated by reference to Exhibit 10.2 of ITT
Corporations Form 10-Q Quarterly Report filed on October
28, 2011 (CIK No. 216228, File
No. 1-5672).
(10
.3)
Tax Matters Agreement, dated as of October 25, 2011, among ITT
Corporation, Exelis Inc. and Xylem Inc.
Incorporated by reference to Exhibit 10.3 of ITT
Corporations Form 10-Q Quarterly Report filed on October
28, 2011 (CIK No. 216228, File
No. 1-5672).
(10
.4)
Master Transition Services Agreement, dated as of October 25,
2011, among ITT Corporation, Exelis Inc. and Xylem Inc.
Incorporated by reference to Exhibit 10.4 of ITT
Corporations Form 10-Q Quarterly Report filed on October
28, 2011 (CIK No. 216228, File
No. 1-5672).
42
Table of Contents
Exhibit
Number
Description
Location
(10
.5)
Four-Year Competitive Advance and Revolving Credit Facility
Agreement, dated as of October 25, 2011, among Xylem Inc.,
the Lenders Named Therein, J.P. Morgan Chase Bank, N.A., as
Administrative Agent and Citibank, N.A., as Syndication Agent.
Filed herewith.
(10
.6)
Xylem 2011 Omnibus Incentive Plan
Incorporated by reference to Exhibit 4.3 of Xylem Inc.s
Registration Statement on Form S-8 filed on October 28, 2011
(CIK No. 1524472, File
No. 333-177607).
(10
.7)
Xylem 1997 Long-Term Incentive Plan
Filed herewith.
(10
.8)
Xylem 1997 Annual Incentive Plan
Filed herewith.
(10
.9)
Xylem Annual Incentive Plan for Executive Officers
Filed herewith.
(10
.10)
Xylem Retirement Savings Plan for Salaried Employees
Incorporated by reference to Exhibit 4.4 of Xylem Inc.s
Registration Statement on Form S-8 filed on October 28, 2011
(CIK No. 1524472, File
No. 333-177607).
(10
.11)
Xylem Supplemental Retirement Savings Plan for Salaried Employees
Filed herewith.
(10
.12)
Xylem Deferred Compensation Plan
Incorporated by reference to Exhibit 4.5 of Xylem Inc.s
Registration Statement on Form S-8 filed on October 28, 2011
(CIK No. 1524472, File
No. 333-177607).
(10
.13)
Xylem Deferred Compensation Plan for Non-Employee Directors
Filed herewith.
(10
.14)
Xylem Enhanced Severance Pay Plan
Filed herewith.
(10
.15)
Xylem Special Senior Executive Severance Pay Plan
Filed herewith.
(10
.16)
Xylem Senior Executive Severance Pay Plan
Filed herewith.
(10
.17)
Form of Xylem 2011 Omnibus Incentive Plan 2011 Non-Qualified
Stock Option Award Agreement Founders Grant
Filed herewith.
(10
.18)
Form of Xylem 2011 Omnibus Incentive Plan Non-Qualified Stock
Option Award Agreement General Grant
Filed herewith.
(10
.19)
Form of Xylem 2011 Omnibus Incentive Plan Restricted Stock Unit
Agreement 2010 TSR Replacement
Filed herewith.
43
Table of Contents
Exhibit
Number
Description
Location
(10
.20)
Form of Xylem 2011 Omnibus Incentive Plan Restricted Stock Unit
Agreement 2011 TSR Replacement
Filed herewith.
(10
.21)
Form of Xylem 2011 Omnibus Incentive Plan Restricted Stock Unit
Agreement Founders Grant
Filed herewith.
(10
.22)
Form of Xylem 2011 Omnibus Incentive Plan Restricted Stock Unit
Agreement General Grant
Filed herewith.
(10
.23)
Form of Xylem 2011 Omnibus Incentive Plan Restricted Stock Unit
Award Agreement Non-Employee Director
Filed herewith.
(10
.24)
Form of Directors Indemnification Agreement
Filed herewith.
(31
.1)
Certification pursuant to Rule 13a-14(a)/15d-14(a) of the
Securities Exchange Act of 1934, as adopted pursuant to Section
302 of the Sarbanes-Oxley Act of 2002
Filed herewith.
(31
.2)
Certification pursuant to Rule 13a-14(a)/15d-14(a) of the
Securities Exchange Act of 1934, as adopted pursuant to Section
302 of the Sarbanes-Oxley Act of 2002
Filed herewith.
(32
.1)
Certification Pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
This Exhibit is intended to be furnished in accordance with
Regulation S-K Item 601(b) (32) (ii) and shall not be deemed to
be filed for purposes of Section 18 of the Securities Exchange
Act of 1934 or incorporated by reference into any filing under
the Securities Act of 1933 or the Securities Exchange Act of
1934, except as shall be expressly set forth by specific
reference.
(32
.2)
Certification Pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
This Exhibit is intended to be furnished in accordance with
Regulation S-K Item 601(b) (32) (ii) and shall not be deemed to
be filed for purposes of Section 18 of the Securities Exchange
Act of 1934 or incorporated by reference into any filing under
the Securities Act of 1933 or the Securities Exchange Act of
1934, except as shall be expressly set forth by specific
reference.
44
Table of Contents
Exhibit
Number
Description
Location
(101)
The following materials from Xylem Inc.s Quarterly Report
on Form 10-Q for the quarter ended September 30, 2011, formatted
in XBRL (Extensible Business Reporting Language): (i) Combined
Condensed Income Statements, (ii) Combined Condensed Statements
of Comprehensive Income, (iii) Combined Condensed Balance
Sheets, (iv) Combined Condensed Statements of Cash Flows and
(v) Notes to Combined Condensed Financial Statements
Submitted electronically with this report.
45
ARTICLE I
|
||||
|
||||
DEFINITIONS
|
||||
|
||||
SECTION 1.01. Defined Terms
|
1 | |||
SECTION 1.02. Terms Generally
|
24 | |||
SECTION 1.03. Accounting Terms; GAAP
|
24 | |||
|
||||
ARTICLE II
|
||||
|
||||
THE CREDITS
|
||||
|
||||
SECTION 2.01. Commitments
|
25 | |||
SECTION 2.02. Loans
|
25 | |||
SECTION 2.03. Competitive Bid Procedure
|
27 | |||
SECTION 2.04. Revolving Borrowing Procedure
|
29 | |||
SECTION 2.05. Letters of Credit
|
30 | |||
SECTION 2.06. Conversion and Continuation of Revolving Loans
|
34 | |||
SECTION 2.07. Fees
|
35 | |||
SECTION 2.08. Repayment of Loans; Evidence of Debt
|
36 | |||
SECTION 2.09. Interest on Loans
|
37 | |||
SECTION 2.10. Default Interest
|
38 | |||
SECTION 2.11. Alternate Rate of Interest
|
38 | |||
SECTION 2.12. Termination, Reduction, Extension and Increase of Commitments
|
38 | |||
SECTION 2.13. Prepayment
|
41 | |||
SECTION 2.14. Reserve Requirements; Change in Circumstances
|
41 | |||
SECTION 2.15. Change in Legality
|
42 | |||
SECTION 2.16. Indemnity
|
43 | |||
SECTION 2.17. Pro Rata Treatment
|
44 | |||
SECTION 2.18. Sharing of Setoffs
|
44 | |||
SECTION 2.19. Payments
|
45 | |||
SECTION 2.20. Taxes
|
45 | |||
SECTION 2.21. Duty to Mitigate; Assignment of Commitments Under Certain Circumstances
|
49 | |||
SECTION 2.22. Defaulting Lenders
|
50 | |||
|
||||
ARTICLE III
|
||||
|
||||
REPRESENTATIONS AND WARRANTIES
|
||||
|
||||
SECTION 3.01. Organization; Powers
|
52 | |||
SECTION 3.02. Authorization
|
52 | |||
SECTION 3.03. Enforceability
|
52 | |||
SECTION 3.04. Governmental Approvals
|
52 | |||
SECTION 3.05. Financial Statements and Projections
|
52 |
2
SECTION 3.06. Litigation; Compliance with Laws
|
53 | |||
SECTION 3.07. Federal Reserve Regulations
|
53 | |||
SECTION 3.08. Investment Company Act
|
54 | |||
SECTION 3.09. Use of Proceeds
|
54 | |||
SECTION 3.10. Full Disclosure; No Material Misstatements
|
54 | |||
SECTION 3.11. Taxes
|
54 | |||
SECTION 3.12. Employee Pension Benefit Plans
|
54 | |||
SECTION 3.13. OFAC
|
55 | |||
|
||||
ARTICLE IV
|
||||
|
||||
CONDITIONS OF LENDING
|
||||
|
||||
SECTION 4.01. All Extensions of Credit
|
55 | |||
SECTION 4.02. Effective Date
|
56 | |||
SECTION 4.03. First Borrowing by Each Borrowing Subsidiary
|
58 | |||
|
||||
ARTICLE V
|
||||
|
||||
AFFIRMATIVE COVENANTS
|
||||
|
||||
SECTION 5.01. Existence
|
59 | |||
SECTION 5.02. Business and Properties
|
59 | |||
SECTION 5.03. Financial Statements, Reports, etc
|
59 | |||
SECTION 5.04. Insurance
|
60 | |||
SECTION 5.05. Obligations and Taxes
|
60 | |||
SECTION 5.06. Litigation and Other Notices
|
61 | |||
SECTION 5.07. Maintaining Records; Access to Properties and Inspections
|
61 | |||
SECTION 5.08. Use of Proceeds
|
61 | |||
SECTION 5.09. Distribution Agreement and Related Agreements
|
61 | |||
|
||||
ARTICLE VI
|
||||
|
||||
NEGATIVE COVENANTS
|
||||
|
||||
SECTION 6.01. Priority Indebtedness
|
61 | |||
SECTION 6.02. Liens
|
62 | |||
SECTION 6.03. Sale and Lease-Back Transactions
|
63 | |||
SECTION 6.04. Fundamental Changes
|
64 | |||
SECTION 6.05. Restrictive Agreements
|
64 | |||
SECTION 6.06. Leverage Ratio
|
65 | |||
|
||||
ARTICLE VII
|
||||
|
||||
EVENTS OF DEFAULT
|
3
ARTICLE VIII
|
||||
|
||||
GUARANTEE
|
||||
|
||||
ARTICLE IX
|
||||
|
||||
THE ADMINISTRATIVE AGENT
|
||||
|
||||
ARTICLE X
|
||||
|
||||
MISCELLANEOUS
|
||||
|
||||
SECTION 10.01. Notices
|
71 | |||
SECTION 10.02. Survival of Agreement
|
73 | |||
SECTION 10.03. Binding Effect
|
73 | |||
SECTION 10.04. Successors and Assigns
|
73 | |||
SECTION 10.05. Expenses; Indemnity
|
76 | |||
SECTION 10.06. APPLICABLE LAW
|
77 | |||
SECTION 10.07. Waivers; Amendment
|
77 | |||
SECTION 10.08. Entire Agreement
|
78 | |||
SECTION 10.09. Severability
|
78 | |||
SECTION 10.10. Counterparts
|
79 | |||
SECTION 10.11. Headings
|
79 | |||
SECTION 10.12. Right of Setoff
|
79 | |||
SECTION 10.13. JURISDICTION; CONSENT TO SERVICE OF PROCESS
|
79 | |||
SECTION 10.14. WAIVER OF JURY TRIAL
|
80 | |||
SECTION 10.15. Borrowing Subsidiaries
|
80 | |||
SECTION 10.16. Conversion of Currencies
|
81 | |||
SECTION 10.17. USA PATRIOT Act
|
81 | |||
SECTION 10.18. No Fiduciary Relationship
|
81 | |||
SECTION 10.19. Non-Public Information
|
82 |
4
Exhibit A-1
|
Form of Competitive Bid Request | |
Exhibit A-2
|
Form of Notice of Competitive Bid Request | |
Exhibit A-3
|
Form of Competitive Bid | |
Exhibit A-4
|
Form of Competitive Bid Accept/Reject Letter | |
Exhibit A-5
|
Form of Revolving Borrowing Request | |
Exhibit B
|
Form of Assignment and Assumption | |
Exhibit C-1
|
Form of Opinion of Dewey & LeBoeuf, Counsel for Xylem Inc. | |
Exhibit C-2
|
Form of Opinion of Frank R. Jimenez, General Counsel and Corporate Secretary of Xylem Inc. | |
Exhibit D-1
|
Form of Borrowing Subsidiary Agreement | |
Exhibit D-2
|
Form of Borrowing Subsidiary Termination | |
Exhibit E
|
Form of Issuing Bank Agreement | |
Exhibit F
|
Form of Note | |
Exhibit G
|
Form of US Tax Certificate | |
|
||
SCHEDULES
|
||
|
||
Schedule 2.01
|
Commitments | |
Schedule 6.01
|
Existing Indebtedness | |
Schedule 6.02
|
Existing Liens | |
Schedule 6.05
|
Existing Restrictive Agreements |
5
2
Eurocurrency | Alternate Base | Facility Fee | L/C Participation | |||||||||||||
Spread | Rate Spread | Percentage | Fee Percentage | |||||||||||||
Category 1
A3 or higher by Moodys; |
0.900 | % | 0.000 | % | 0.1000 | % | 0.900 | % | ||||||||
A- or higher by S&P;
A- or higher by Fitch |
||||||||||||||||
Category 2
Baa1 or higher by Moodys; |
1.000 | % | 0.000 | % | 0.1250 | % | 1.000 | % | ||||||||
BBB+ or higher by S&P;
BBB+ or higher by Fitch |
||||||||||||||||
Category 3
Baa2 by Moodys; |
1.100 | % | 0.100 | % | 0.150 | % | 1.100 | % | ||||||||
BBB by S&P;
BBB by Fitch |
||||||||||||||||
Category 4
Baa3 by Moodys; |
1.300 | % | 0.300 | % | 0.200 | % | 1.300 | % | ||||||||
BBB- by S&P;
BBB- by Fitch |
||||||||||||||||
Category 5
Lower than Baa3 by Moodys; |
1.475 | % | 0.475 | % | 0.275 | % | 1.475 | % | ||||||||
Lower than BBB- by S&P;
Lower than BBB- by Fitch |
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
XYLEM INC., as Borrower,
|
||||
by | /s/ Samir Patel | |||
Name: | Samir Patel | |||
Title: | Treasurer | |||
JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent, |
||||
by | /s/ Robert D. Bryant | |||
Name: | Robert D. Bryant | |||
Title: | Vice President | |||
CITIBANK, N.A.,
|
||||
by | /s/ Andrew Sidford | |||
Name: | Andrew Sidford | |||
Title: | Vice President | |||
Lender: __________________________,
|
||||
by | ||||
Name: | ||||
Title: | ||||
For any Lender requiring a second signature line:
|
||||
by | ||||
Name: | ||||
Title: | ||||
Lender
Commitment
$
50,000,000
$
50,000,000
$
50,000,000
$
50,000,000
$
40,000,000
$
40,000,000
$
40,000,000
$
40,000,000
$
25,000,000
$
25,000,000
$
25,000,000
$
25,000,000
$
25,000,000
$
25,000,000
$
15,000,000
$
15,000,000
$
15,000,000
$
15,000,000
$
15,000,000
$
15,000,000
$
600,000,000
Borrower | Lender | Balance | ||
ITT do Brasil Ltda
|
Banco Citibank SA | BRL 22,332,497.81 |
(A) Date of Competitive Borrowing
(which is a Business Day) |
||||
|
||||
(B) Currency of Competitive Borrowing
1
|
||||
|
||||
(C) Principal amount
of Competitive Borrowing
2
|
||||
|
||||
(D) Interest rate basis
3
|
||||
|
||||
(E) Interest Period and the
last day thereof
4
|
||||
|
1 | Dollar or a Non-US Currency. | |
2 | An integral multiple of 1,000,000 units of the applicable currency with a Dollar Equivalent of at least $10,000,000 but not greater than the Total Commitment then available. | |
3 | A Eurocurrency Borrowing or a Fixed Rate Borrowing. | |
4 | Shall be subject to the definition of the term Interest Period and end not later than the Maturity Date. |
Very truly yours,
[NAME OF BORROWER], |
||||
by | ||||
Name: | ||||
Title: | [Financial Officer] | |||
2
(A) Date of Competitive Borrowing
|
||||
|
||||
(B) Currency of Competitive Borrowing
|
||||
|
||||
(C) Principal amount of
Competitive Borrowing
|
||||
|
||||
(D) Interest rate basis
|
||||
|
||||
(E) Interest Period and the
last day thereof.
|
||||
|
1 | The Competitive Bid must be received by the Administrative Agent (i) in the case of Eurocurrency Competitive Loans, not later than 9:30 a.m., New York City time, three Business Days before a proposed Competitive Borrowing, and (ii) in the case of Fixed Rate Loans, not later than 9:30 a.m., New York City time, on the day of a proposed Competitive Borrowing. |
Very truly yours,
JPMORGAN CHASE BANK, N.A., as Administrative Agent, |
||||
by | ||||
Name: | ||||
Title: | ||||
(A) Principal Amount
1
|
||||
|
||||
(B) Competitive Bid Rate
2
|
||||
|
||||
(C) Interest Period and last
day thereof
|
||||
|
1 | An integral multiple of 1,000,000 units of the applicable currency and may be equal to the entire principal amount of the Competitive Borrowing requested. Multiple bids will be accepted by the Administrative Agent. | |
2 | i.e ., LIBO Rate + or %, in the case of Eurocurrency Competitive Loans, or %, in the case of Fixed Rate Loans. |
Very truly yours,
[NAME OF LENDER], |
||||
by | ||||
Name: | ||||
Title: | ||||
2
Principal Amount | Currency | Fixed Rate/Margin | Lender | |||
|
[%]/[+/-. %] | |||||
We hereby reject the following bids:
|
||||||
Principal Amount | Currency | Fixed Rate/Margin | Lender | |||
|
[%]/[+/-. %] |
Very truly yours,
[NAME OF BORROWER], |
||||
by | ||||
Name: | ||||
Title: | ||||
(A) Date of Revolving Borrowing
(which is a Business Day) |
||||
|
||||
(B) Principal amount of
Revolving Borrowing
1
|
||||
|
||||
(C) Interest rate basis
2
|
||||
|
||||
(D) Interest Period and the
last day thereof
3
|
||||
|
1 | An integral multiple of $5,000,000 and not less than $10,000,000 (or an aggregate principal amount equal to the Total Commitment then available) but not greater than the Total Commitment then available. | |
2 | Eurocurrency Revolving Loan or ABR Loan. | |
3 | Shall be subject to the definition of the term Interest Period. |
Very truly yours,
[NAME OF BORROWER], |
||||
by | ||||
Name: | ||||
Title: | [Financial Officer] | |||
1. | Assignor (the Assignor ): | ||
2. | Assignee (the Assignee ): |
3. | Borrowers: | ||
4. | Administrative Agent: | ||
5. | Assigned Interest: |
Aggregate Amount | Percentage | |||||||||||
of | Amount of | Assigned of | ||||||||||
Commitment/Loans of | Commitment/Loans | Commitment/ | ||||||||||
of all Lenders | Assigned | Loans 1 | ||||||||||
Commitment Assigned
|
$ | $ | % | |||||||||
Revolving Loans
|
$ | $ | % | |||||||||
Competitive Loans
|
$ | $ | % |
1 | Set forth, to at least nine decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. |
2
[NAME OF ASSIGNOR], as
Assignor, |
||||
by | ||||
Name: | ||||
Title: | ||||
[NAME OF ASSIGNEE], as
Assignee, |
||||
by | ||||
Name: | ||||
Title: | ||||
Consented to:
JPMORGAN CHASE BANK, N.A. as Administrative Agent, |
||||
by | ||||
Name: | ||||
Title: | ||||
Consented to:
[ ], as Issuing Bank, |
||||
by | ||||
Name: | ||||
Title: |
[Consented to:
Xylem Inc., as the Company, |
||||
by | ||||
Name: | ||||
Title: ] 2 | ||||
2 | No consent of the Company shall be required for an assignment to a Lender, an Affiliate of a Lender or, if an Event of Default has occurred and is continuing, any other assignee. |
3
2
1 | For opinion purposes, Loan Documents will be defined as those Loan Documents to be executed and delivered as of the Effective Date. |
2
XYLEM INC.,
|
||||
by | ||||
Name: | ||||
Title: | ||||
[NAME OF SUBSIDIARY],
|
||||
by | ||||
Name: | ||||
Title: | ||||
JPMORGAN CHASE BANK N.A.,
as Administrative Agent, |
||||
by | ||||
Name: | ||||
Title: | ||||
XYLEM INC.,
|
||||
by | ||||
Name: | ||||
Title: | ||||
2
XYLEM INC.,
|
||||
by | ||||
Name: | ||||
Title: | ||||
[ISSUING BANK],
|
||||
by | ||||
Name: | ||||
Title: | ||||
by | ||||
Name: | ||||
Title: | ||||
A.
|
Issuing Bank: | |||
|
||||
B.
|
Issuing Banks Address and Telecopy Number for Notices: | |||
|
||||
C.
|
Time of Day by Which Notices Must be Received | A notice requesting the issuance of a Letter of Credit must be received by the Issuing Bank by 10:00 a.m. (New York time) not less than five Business Days prior to the proposed date of issuance. | ||
|
||||
D.
|
Special Terms: | The aggregate L/C Exposure in respect of Letters of Credit issued pursuant to this Agreement shall not exceed $[ ]. | ||
|
||||
E.
|
Issuing Bank Fronting Fee: | [ ]% per annum on the average daily undrawn amount of the Letters of Credit, payable on the same dates that L/C Participation Fees are payable under the Credit Agreement. | ||
|
||||
F.
|
Issuing Banks Account for Payment of Issuing Bank Fees: |
[NAME OF BORROWER],
|
||||
by | ||||
Name: | ||||
Title: | ||||
Amount of Principal | Unpaid | Notations | ||||||||||||||||
Date | Amount of Loan | Repaid | Principal Balance | Made By |
2
[NAME OF LENDER]
|
||||
By: | ||||
Name: | ||||
Title: | ||||
[NAME OF LENDER]
|
||||
By: | ||||
Name: | ||||
Title: | ||||
[NAME OF PARTICIPANT]
|
||||
By: | ||||
Name: | ||||
Title: | ||||
[NAME OF PARTICIPANT]
|
||||
By: | ||||
Name: | ||||
Title: | ||||
2
3
4
5
6
7
8
2
3
4
5
2
3
4
5
6
Page | ||||
XYLEM
SUPPLEMENTAL RETIREMENT SAVINGS PLAN FOR SALARIED EMPLOYEES
|
1 | |||
|
||||
ARTICLE I DEFINITIONS
|
1 | |||
|
||||
ARTICLE II PARTICIPATION
|
8 | |||
|
||||
2.01 Eligibility
|
8 | |||
2.02 Participation and Filing Requirements
|
9 | |||
2.03 Termination of Participation
|
9 | |||
|
||||
ARTICLE
III SUPPLEMENTAL SAVINGS PLAN CONTRIBUTIONS
|
10 | |||
|
||||
3.01 Amount of Contributions
|
10 | |||
3.02 Investment of Accounts
|
12 | |||
3.03 Vesting of Accounts
|
13 | |||
3.04 Individual Accounts
|
13 | |||
3.05 Valuation of Accounts
|
14 | |||
|
||||
ARTICLE IV PAYMENT OF CONTRIBUTIONS
|
15 | |||
|
||||
4.01 Commencement of Payment
|
15 | |||
4.02 Method of Payment
|
15 | |||
4.03 Payment upon the Occurrence of a Change in Control
|
15 | |||
|
||||
ARTICLE V GENERAL PROVISIONS
|
16 | |||
|
||||
5.01 Funding
|
16 | |||
5.02 No Contract of Employment
|
16 | |||
5.03 Unsecured Interest
|
16 | |||
5.04 Facility of Payment
|
17 | |||
5.05 Withholding Taxes
|
17 | |||
5.06 Nonalienation
|
17 | |||
5.07 Transfers
|
17 | |||
5.08 Claims Procedure
|
18 | |||
5.09 Compliance
|
20 | |||
5.10 Acceleration of or Delay in Payments
|
20 | |||
5.11 Construction
|
20 | |||
|
||||
ARTICLE VI AMENDMENT OR TERMINATION
|
22 | |||
|
||||
6.01 Right to Terminate
|
22 | |||
6.02 Right to Amend
|
22 | |||
|
||||
ARTICLE VII ADMINISTRATION
|
23 |
1.01 | Acceleration Event shall mean Acceleration Event as that term is defined under the provisions of the Predecessor Plan as in effect on October 3, 2004. | |
1.02 | Accounts shall mean the Deferral Account, the Floor Contribution Account, Core Contribution Account, the Matching Contribution Account and the Transition Credit Contribution Account. | |
1.03 | Associated Company shall mean any division, unit, subsidiary, or affiliate of the Corporation which is an Associated Company as such term is defined in the Savings Plan. | |
1.04 | Beneficiary shall mean the person or persons designated pursuant to the provisions of the Savings Plan to receive benefits under said Savings Plan after a Members death. | |
1.05 | Change of Control shall mean an event which shall occur if there is: (i) a change in the ownership of the Corporation; (ii) a change in the effective control of the Corporation; or (iii) a change in the ownership of a substantial portion of the assets of the Corporation. | |
For purposes of this Section, a change in the ownership occurs on the date on which any one person, or more than one person acting as a group (as defined in Treasury Regs. 1.409A-2(i)(5)(v)(B)), acquires ownership of stock that, together with stock held by such person or group constitutes more than 50% of the total fair market value or total voting power of the stock of the Corporation. | ||
A change in the effective control occurs on the date on which either (i) a person, or more than one person acting as a group (as defined in Treasury Regs. 1.409A-2(i)(5)(v)(B)), |
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acquires ownership of stock possessing 30% or more of the total voting power of the stock of the Corporation, taking into account all such stock acquired during the 12-month period ending on the date of the most recent acquisition, or (ii) a majority of the members of the Board of Directors is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of such Board of Directors prior to the date of the appointment or election, but only if no other corporation is a majority shareholder. |
A change in the ownership of a substantial portion of assets occurs on the date on which any one person, or more than one person acting as a group (as defined in Treasury Regs. 1.409A-2(i)(5)(v)(B)), other than a person or group of persons that is related to the Corporation, acquires assets that have a total gross fair market value equal to or more than 40% of the total gross fair market value of all of the assets of the Corporation immediately prior to such acquisition or acquisitions, taking into account all such assets acquired during the 12-month period ending on the date of the most recent acquisition. | ||
The determination as to the occurrence of a Change in Control shall be based on objective facts and in accordance with the requirements of Code Section 409A and the regulations promulgated thereunder. | ||
1.06 | Code shall mean the Internal Revenue Code of 1986, as amended from time to time. | |
1.07 | Committee shall mean the Benefits Administration Committee under the Savings Plan. | |
1.08 | Company shall mean the Corporation with respect to its employees or any Participating Corporation or Participating Division (as such terms are defined in the Savings Plan) authorized to participate in the Plan by the Corporation, with respect to each of its employees. | |
1.09 | Corporation shall mean Xylem Inc., an Indiana corporation, or any successor by merger, purchase or otherwise. |
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1.10
Company Core Contribution Rate
shall mean the rate of Company Core Contributions (as such
term in defined under the provisions of the Savings Plan) for a particular Plan Year.
1.11
Company Transition Credit Contribution Rate
shall mean the rate of Company Transition
Credit Contributions (as such term in defined under the provisions of the Savings Plan) for a
particular Plan Year.
1.12
Core Contribution Account
shall mean the bookkeeping account (or subaccount(s)) maintained
for each Member to record all amounts credited on his behalf under Section 3.01(d) and
earnings on those amounts pursuant to Section 3.02.
1.13
Deferral Account
shall mean the bookkeeping account (or subaccount(s)) maintained for each
Member to record the amounts credited on his behalf under Section 3.01(a) and earnings on
those amounts pursuant to Section 3.02, and with respect to an individual who become a Member
of Plan on the Effective Date and who immediately prior to the Effective Date was a member in
the Predecessor Plan, the amount deferred under Section 3.01(a) of the Predecessor Plan by
such member adjusted as provided in Section 3.02.
1.14
Effective Date
shall mean October 31, 2011.
1.15
Eligible Employee
shall mean an Employee of the Company who is eligible to participate in
the Plan as provided in Section 2.01.
1.16
Employee
shall have the meaning set forth in the Savings Plan.
1.17
ERISA
shall mean the Employee Retirement Income Security Act of 1974, as amended from time
to time.
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1.18
Excess Matching Contributions
shall mean the amount of contributions credited on a Members
behalf under Section 3.01(b).
1.19
Excess Floor Contributions
shall mean the amount of contributions credited on a Members
behalf under Section 3.01(c) of the Predecessor Plan.
1.20
Excess Core Contributions
shall mean the amount of contributions credited on a Members
behalf under Section 3.01(d).
1.21
Excess Transition Credit Contributions
shall mean the amount of contributions credited on a
Members behalf under
Section 3.01(e).
1.22
Floor Contribution Account
shall mean the bookkeeping account (or subaccount(s)) maintained
for each individual who become a Member on the Effective Date and who immediately prior to the
Effective Date was a member in the Predecessor Plan, to record the amount credited on the
Members behalf under Section 3.01(c) of the Predecessor Plan adjusted as provided in Section
3.02.
1.23
Matching Company Contribution
shall have the meaning set forth in the Savings Plan.
1.24
Matching Contribution Account
shall mean the bookkeeping account (or subaccount(s))
maintained for each Member to record all amounts credited on his behalf under Section 3.01(b)
and earnings on those amounts pursuant to Section 3.02 and with respect to an
individual who becomes a Member of the Plan on the Effective Date and who immediately prior to
the Effective Date was a member in the Predecessor Plan, the amount credited on the Members
behalf under Section 3.01(b) of the Predecessor Plan adjusted as
provided in Section 3.02.
1.25
Member
shall mean each Eligible Employee who participates in the Plan pursuant to Article
II and each individual who was a member in the Predecessor Plan immediately
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prior to the Effective Date and had amounts transferred from the Predecessor Plan to this Plan effective as of the Effective Date. |
1.26 | Plan shall mean the Xylem Supplemental Savings Plan for Salaried Employees as set forth in this document, as it may be amended from time to time; provided, however, that the term Plan shall include the Predecessor Plan with respect to all prior service and participation by Member with the Predecessor Corporation. | |
1.27 | Plan Year shall mean the calendar year. | |
1.28 | Predecessor Plan shall mean the ITT Excess Savings Plan as effective immediately prior to the Effective Date. | |
1.29 | Reporting Date shall mean each business day on which the New York Stock Exchange is open for business, or such other day as the Committee may determine. | |
1.30 | Salary shall mean (i) with respect to Plan Years beginning prior to January 1, 2012, an Eligible Employees Salary as such term is defined in the ITT Salaried Investment and Savings Plan as in effect prior to the Effective Date disregarding any reduction required due to the application of the Statutory Compensation Limitation and (ii) with respect to Plan Years beginning on and after January 1, 2012, an Eligible Employees Salary as such term is defined in the Savings Plan as in effect on and after the Effective Date disregarding any reduction required due to the application of the Statutory Compensation Limitation. Notwithstanding the foregoing, solely for purposes of calculating the Employer contribution amounts pursuant to the provisions of Section 3.02(b), (d) and (e) on and after the Effective Date the term Salary shall mean Salary as such term is defined in the Savings Plan as in effect on and after the Effective Date disregarding any reduction required due to the application of the Statutory Compensation Limitation. Salary shall be determined before any reduction pursuant to an Eligible Employees election to make Salary Deferrals under this Plan, but after reduction for deferrals under any other nonqualified deferred compensation program maintained by the Company. |
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1.31 | Salary Deferrals shall mean the amount of Salary a Member has elected to defer for a Plan Year beginning prior to January 1, 2012 pursuant to a Salary Reduction Agreement in accordance with the provisions of Section 3.01(a). | |
1.32 | Salary Reduction Agreement shall mean with respect to an individual who becomes a Member effective as of the Effective Date and who immediately prior to the Effective Date was a Member in the Predecessor Plan the completed Agreement entered into by said Member pursuant to Section 2.02 of the Predecessor Plan under which be elected to deferred a portion of his Salary under the provisions of Section 3.01(a) of the Predecessor Plan. | |
1.33 | Savings shall have the meaning set forth in the Savings Plan. | |
1.34 | Savings Plan shall mean the Xylem Retirement Savings Plan for Salaried Employees (successor plan to the ITT Salaried Investment and Savings Plan) as amended from time to time. | |
1.35 | Special DC Credit Contribution Rate shall mean the rate of Special DC Credit Contributions (as such term is defined under the provisions of the Savings Plan) for a particular Plan Year. | |
1.36 | Statutory Compensation Limitation shall mean the limitations set forth in Section 401(a)(17) of the Code as in effect each calendar year for the Savings Plan. | |
1.37 | Termination of Employment shall mean a Separation from Service as such term is defined in the Treasury Regs. under Section 409A of the Code, as modified by the rules described below: |
(a) | An Employee who is absent from work due to military leave, sick leave, or other bona fide leave of absence pursuant to Company policies shall incur a |
Page 7
Termination of Employment on the first date immediately following the later of (i) the six-month anniversary of the commencement of the leave (eighteen month anniversary for a disability leave of absence) or (ii) the expiration of the Employees right, if any, to reemployment under statute or contract or pursuant to Company policies. For this purpose, a disability leave of absence is an absence due to any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 6 months, where such impairment causes the employee to be unable to perform the duties of his job or a substantially similar job.; |
(b) | For purposes of determining whether another organization is an Associated Company of the Corporation, common ownership of at least 50% shall be determinative; | ||
(c) | The Corporation specifically reserves the right to determine whether a sale or other disposition of substantial assets to an unrelated party constitutes a Termination of Employment with respect to the executive providing services to the seller immediately prior to the transaction and providing services to the buyer after the transaction. Such determination shall be made in accordance with the requirements of Code Section 409A. |
Whether Termination of Employment has occurred shall be determined by the Committee in accordance with Code Section 409A, the regulations promulgated thereunder, and other applicable guidance, as modified by rules described above. The terms or phrases terminates employment, termination of employment, employment is terminated, or any other similar terminology shall have the same meaning as a Termination of Employment. | ||
1.38 | Transition Credit Contribution Account shall mean the bookkeeping account (or subaccount(s)) maintained for each Member to record all amounts credited on his behalf under Section 3.01(e) and earnings on those amounts pursuant to Section 3.02. |
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2.01
Eligibility
(a)
(i) An Employee shall be an Eligible Employee as of the Effective Date with
respect to the period beginning on the Effective Date and ending on December 31, 2011
(the 2011 Plan Year) if the Employee (A) is eligible to participate in the Savings
Plan during that period, (B) was an Eligible Employee under the terms of the
Predecessor Plan with respect to the during that particular calendar year beginning
January 1, 2011 and (C) his Salary in that calendar year exceeds the Statutory
Compensation Limitation in effect for that particular year.
(ii) | Notwithstanding the foregoing effective as of the Effective Date, an Employee who was not a member of the Predecessor Plan shall be an Eligible Employee solely for the purposes of applying the provisions of Section 3.02(b), (d) and (e) hereof with respect to the 2011 Plan Year, provided the Employee (A) is eligible to participate in the Savings Plan during the 2011 Plan Year and (B) his Salary during the 2011 Plan Year causes his total Salary for the calendar year ending December 31, 2011 to exceed the Statutory Compensation Limitation in effect for that particular year. | ||
(iii) | Effective as of January 1, 2012, an Employee shall be an Eligible Employee for the portion of a particular Plan Year during which (A) the Employee is eligible to participate in the Savings Plan and (B) the Eligible Employees Salary in that particular Plan Year exceeds the Statutory Compensation Limitation in effect for that particular Plan Year. |
(b) | Upon reemployment by the Company, an Employee shall become an Eligible Employee again only upon completing the eligibility requirement described in Section 2.01(a). |
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2.02
Participation and Filing Requirements
(a)
An Eligible Employee shall become a Member when contributions are credited on
his behalf pursuant to Article 3.
(b)
Subject to the provisions of this Section, with respect to the Plan Year
beginning on the Effective Date and ending as of December 31, 2011, any Eligible
Employee who has met the eligibility requirements of Section 2.01(a)(i) for that Plan
Year shall have Salary Deferrals credited to his Deferral Account in the 2011 Plan Year
in accordance with the Salary Reduction Agreement executed by such Eligible Employee
under the provision of the Predecessor Plan with respect to the calendar year beginning
January 1, 2011 which authorized Salary Deferrals under the Predecessor Plan for that
year in accordance with the provisions of Section 3.01(a) thereto.
(c)
Notwithstanding the foregoing, if a Member receives a hardship withdrawal of
elective deferrals from the Savings Plan or any other plan which is maintained by the
Company or an Associated Company and which meets the requirements of Section 401(k) of
the Code (or any successor thereof), the Members Salary Reduction Agreement in effect
at that time shall be cancelled. Any subsequent Salary payment which would have been
deferred pursuant to that Salary Reduction Agreement, but for the application of this
Section 2.02(b), shall be paid to the Member as if he had not entered into the Salary
Reduction Agreement.
2.03
Termination of Participation
(a)
A Members participation in the Plan shall terminate when the vested values of
the Members Accounts under the Plan are totally distributed to, or on behalf of, the
Member.
(b)
Upon reemployment by the Company, a former Member shall become a Member again
only upon completing, subsequent to his reemployment, the eligibility and participation
requirements of Section 2.01 and 2.02, respectively.
Page 10
3.01 | Amount of Contributions | |
For any Plan Year, the amount of contributions credited under the Plan on behalf of a Member pursuant to this Article 3 shall be equal to the sum of the Salary Deferrals, Excess Matching Contributions, Excess Core Contributions and Excess Transition Credit Contributions determined under (a), (b), (c) and (d) below: |
(a) | Salary Deferrals | ||
The amount of Salary Deferrals for the period beginning on the Effective Date and ending on December 31, 2011 (the 2011 Plan Year) shall be equal to the designated percentage of Salary elected by the Member in his Salary Reduction Agreement executed under the provisions of the Predecessor Plan, provided that the allocation under the Plan and the reduction in the Eligible Employees Salary corresponding to such election shall be made only with respect to Salary that is otherwise earned and payable to such Member during the portion of Plan Year beginning on the Effective Date and ending as of December 31, 2011 in excess of the Statutory Compensation Limitation for that year. | |||
Notwithstanding any Plan provision to the contrary, effective with respect to Plan Years beginning on and after January 1, 2012, Salary Deferrals are no longer permitted under the provision of the Plan and a Member shall not be eligible to defer any Salary earned on and after January 1, 2012. |
Page 11
(b) | Excess Matching Contributions | ||
The amount of Excess Matching Contributions credited to a Members Matching Contribution Account for the portion of the Plan Year beginning on the Effective Date and ending on December 31, 2011 shall be equal to three percent (3%) of the portion of an Eligible Employees Salary paid during that portion of the Plan Year which causes his Salary for the calendar year ending December 31, 2011 to exceed the Statutory Compensation Limitation for that Plan Year. | |||
With respect to Plan Years commencing on and after January 1, 2012, the amount of Excess Matching Contributions credited to a Members Matching Contribution Account for each particular Plan Year shall be equal to three percent (3%) of the portion of an Eligible Employees Salary in that particular Plan Year that exceeds the Statutory Compensation Limitation for that year. | |||
(c) | Excess Core Contributions | ||
With respect to Plan Years commencing on and after January 1, 2012, the amount of Excess Core Contributions credited to a Members Core Contribution Account for each particular Plan Year shall be equal to Company Core Contribution Rate applicable to the Eligible Employee for that particular Plan Year applied to the portion of such Eligible Employees Salary in that particular Plan Year that exceeds the Statutory Compensation Limitation for that Plan Year. | |||
Notwithstanding the forgoing, the Excess Core Contributions for the portion of the 2011 Plan Year beginning on the Effective Date and ending on December 31, 2011 shall be equal to the Eligible Employees Company Core Contribution Rate for 2011 multiplied by such Eligible Employees Salary for that portion of the Plan Year which causes his Salary for the calendar year beginning January 1, 2011 to exceed the Statutory Compensation Limitation for that year. |
Page 12
(d) | Excess Transition Credit Contributions | ||
With respect to Plan Years commencing on and after January 1, 2012, the amount of Excess Transition Credit Contributions credited to a Members Company Transition Credit Contribution Account for each particular Plan Year shall be equal to Company Transition Credit Contribution Rate applicable to the Eligible Employee for that particular Plan Year applied to the portion of an Eligible Employees Salary in that particular Plan Year that exceeds the Statutory Compensation Limitation for that Plan Year. | |||
Notwithstanding the forgoing, the Excess Transition Credit Contributions credited to a Members Company Transition Credit Contribution Account for the portion of the Plan Year beginning on the Effective Date and ending on December 31, 2011 shall be equal to the Eligible Employees Company Transition Credit Contribution Rate for 2011 multiplied by such Eligible Employees Salary for that portion of the Plan Year which causes his Salary for the total 2011 Plan Year to exceed the Statutory Compensation Limitation for that year. | |||
Notwithstanding the forgoing, there shall be credited to a Members Transition Credit Contribution Account an amount equal to the Special DC Credit Contribution Rate, if any, applicable to the Eligible Employee for a particular Plan Year applied to the portion of such Eligible Employees Salary in that particular Plan Year that exceeds the Statutory Compensation Limitation for that year. | |||
(e) | The contributions credited on a Members behalf pursuant to paragraphs (a), (b), (c), and (d) above shall be credited to a Members Accounts at the same time as they would have been credited to his accounts under the Savings Plan if not for the application of the Statutory Compensation Limitations. |
3.02 | Investment of Accounts | ||
A Member shall have no choice or election with respect to the investments of his Accounts. As of each Reporting Date, there shall be credited or debited an amount of |
Page 13
earnings or losses on the balance of the Members Accounts as of such Reporting Date which would have been credited had the Members Accounts been invested in the stable value fund maintained under the Savings Plan, or such other fund as determined by the PFTIC, as such term is defined in the Savings Plan. |
3.03 | Vesting of Accounts |
(a) | The Member shall be fully vested in his Excess Floor Contributions Account and the Salary Deferrals, Excess Matching Contributions, Excess Core Contributions and Excess Transition Credit Contributions (and earnings thereon) made on his behalf under Section 3.01(a), (b), (c), and (d) respectively. Effective as of the Effective Date, a Member who is employed by the Company on or after the Effective Date shall be fully vested in the Excess Matching Contributions held in his Matching Contribution Account which were made on his behalf under Section 3.01(b) of the Predecessor Plan (and earnings thereon). | ||
(b) | Notwithstanding any other provision of the Plan to the contrary, all prior service and participation by a Member with the Predecessor Corporation shall be deemed credited in full towards a Members service and participation with the Company. |
3.04 | Individual Accounts |
(a) | The Committee shall maintain, or cause to be maintained, on the book of the Corporation records showing the individual balances of each Members Accounts (or subaccounts). At least once a year, each Member shall be furnished with a statement setting forth the value of his Accounts. | ||
(b) | Accounts established under this Plan shall be hypothetical in nature and shall be maintained for bookkeeping purposes only so that hypothetical earnings or losses on the amounts credited on a Members behalf under this Plan can be credited or debited, as the case may be. |
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3.05
Valuation of Accounts
(a)
The Committee shall value or cause to be valued each Members Accounts at least
quarterly. On each Reporting Date there shall be allocated to the Accounts of each
Member the appropriate amount determined in accordance with Section 3.02.
(b)
Whenever an event requires a determination of the value of a Members Accounts,
the value shall be computed as of the Reporting Date immediately preceding the date of
the event, except as otherwise specified in this Plan.
Page 15
4.01 | Commencement of Payment |
(a) | Except as otherwise provided below, a Member shall be entitled to receive payment of his Deferral Account, his Floor Contribution Account, his Core Contribution Account and his Transition Credit Contribution Account and the vested portion of his Matching Contribution Account as determined under Section 3.03 upon his Termination of Employment with the Company and all Associated Companies for any reason, other than death. The distribution of such Accounts shall be made in the seventh month following the date the Members Termination of Employment occurs. | ||
(b) | In the event of the death of a Member prior to the full payment of his Accounts, the unpaid portion of his Accounts shall be paid to his Beneficiary in the month following the month in which the Members date of death occurs. |
4.02 | Method of Payment | |
The payment of such Members Deferral Account, his Floor Contribution Account, his Core Contribution Account and his Transition Credit Contribution Account and the vested portion of his Matching Contribution Account shall be made in a single lump sum payment. | ||
4.03 | Payment upon the Occurrence of a Change in Control | |
Upon the occurrence of a Change in Control, all Members shall automatically receive the balance of their Deferral Account, Floor Contribution Account, Core Contribution Account and Transition Credit Contribution Account and the vested portion of their Matching Contribution Account in a single lump sum payment. Such lump sum payment shall be made within 90 days of the date the Change in Control occurs. If the Member dies after such Change in Control, but before receiving such payment, it shall be made to his Beneficiary. |
Page 16
5.01
Funding
All amounts payable in accordance with this Plan shall constitute a general unsecured
obligation of the Corporation. Such amounts, as well as any administrative costs relating
to the Plan, shall be paid out of the general assets of the Corporation.
5.02
No Contract of Employment
The Plan is not a contract of employment and the terms of employment of any Member shall not
be affected in any way by this Plan or related instruments, except as specifically provided
therein. The establishment of the Plan shall not be construed as conferring any legal
rights upon any person for a continuation of employment, nor shall it interfere with the
rights of the Company or an Associated Company to discharge any person and to treat him
without regard to the effect which such treatment might have upon him under this Plan. Each
Member and all persons who may have or claim any right by reason of his participation shall
be bound by the terms of this Plan and all agreements entered into pursuant thereto.
5.03
Unsecured Interest
Neither the Corporation nor the Board of Directors nor the Committee in any way guarantees
the performance of the investment fund designated under Section 3.02. No special or
separate fund shall be established, and no segregation of assets shall be made, to assure
the payments thereunder. No Member hereunder shall have any right, title, or interest
whatsoever in any specific assets of the Corporation. Nothing contained in this Plan and no
action taken pursuant to its provisions shall create or be construed to create a trust of
any kind or a fiduciary relationship between the Corporation and a Member or any other
person. To the extent that any person acquires a right to receive payments under this Plan,
such right shall be no greater than the right of any unsecured creditor of the Corporation.
Page 17
5.04
Facility of Payment
In the event that the Committee shall find that a Member or Beneficiary is unable to care
for his affairs because of illness or accident or has died, or if a Beneficiary is a minor
the Committee may direct that any benefit payment due him, unless claim shall have been made
therefore by a duly appointed legal representative, be paid on his behalf to his spouse, a
child, a parent or other blood relative, or to a person with whom he resides, and any such
payment so made shall thereby be a complete discharge of the liabilities of the Corporation
and the Plan for that payment.
5.05
Withholding Taxes
The Company or an Associated Company shall have the right to deduct from each payment to be
made under the Plan any required withholding taxes.
5.06
Nonalienation
Subject to any applicable law, no benefit under the Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any
attempt to do so shall be void, nor shall any such benefit be in any manner liable for or
subject to garnishment, attachment, execution or levy, or liable for or subject to the
debts, contracts, liabilities, engagements or torts of a person entitled to such benefits.
5.07
Transfers
(a)
In the event the Corporation (i) sells, causes the sale of, or sold the stock
or assets of any employing company in the controlled group of the Corporation to a
third party or (ii) distributes or distributed to the holders of shares of the
Corporations common stock all of the outstanding shares of common stock of a
subsidiary or subsidiaries of the Corporation, and, as a result of such sale or
distribution, such company or its employees are no longer eligible to participate
hereunder, the liabilities with respect to the benefits accrued under this Plan for a
Member who, as a result of such sale or distribution, is no longer eligible to
participate in this Plan, shall, at the discretion and direction of the Corporation
(and approval by the new employer), be transferred to a similar plan of such new
employer and become a
Page 18
liability thereunder. Upon such transfer (and acceptance thereof) the liabilities for such transferred benefits shall become the obligation of the new employer and the liability under this Plan for such benefits shall cease. |
(b) | Notwithstanding any Plan provision to the contrary, at the discretion and direction of the Corporation, liabilities with respect to benefits accrued by a Member under a plan maintained by such Members former employer may be transferred to this Plan and upon such transfer become the obligation of the Corporation. |
5.08 | Claims Procedure |
(a) | Submission of Claims | ||
Claims for benefits under the Plan shall be submitted in writing to the Committee or to an individual designated by the Committee for this purpose. |
(b) | Denial of Claim | ||
If any claim for benefits is wholly or partially denied, the claimant shall be given written notice within 90 days following the date on which the claim is filed, which notice shall set forth |
(i) | the specific reason or reasons for the denial; | ||
(ii) | specific reference to pertinent Plan provisions on which the denial is based; | ||
(iii) | 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 | ||
(iv) | an explanation of the Plans claim review procedure, including information as to the steps to be taken if the claimant wishes to submit the claim for review and the time limits for requesting a review. |
Page 19
If special circumstances require an extension of time for processing the claim, written notice of an extension shall be furnished to the claimant prior to the end of the initial period of 90 days following the date on which the claim is filed. Such an extension may not exceed a period of 90 days beyond the end of said initial period. | |||
If the claim has not been granted and written notice of the denial of the claim is not furnished within 90 days following the date on which the claim is filed, the claim shall be deemed denied for the purpose of proceeding to the claim review procedure. | |||
(c) | Claim Review Procedure | ||
The claimant or his authorized representative shall have 60 days after receipt of written notification of denial of a claim to request a review of the denial by making written request to the Committee, and may review pertinent documents and submit issues and comments in writing within such 60-day period. | |||
Not later than 60 days after receipt of the request for review, the Committee (or the committee designated by the Company to hear such appeals, the Appeals Committee) shall render and furnish to the claimant a written decision, which shall include specific reasons for the decision and shall make specific references to pertinent Plan provisions on which it is based. If special circumstances require an extension of time for processing, the decision shall be rendered as soon as possible, but not later than 120 days after receipt of the request for review, provided that written notice and explanation of the delay are given to the claimant prior to commencement of the extension. Such decision by the Appeals Committee shall not be subject to further review. If a decision on review is not furnished to a claimant within the specified time period, the claim shall be deemed to have been denied on review. |
Page 20
(d) | Exhaustion of Remedy | ||
No claimant shall institute any action or proceeding in any state or federal court of law or equity or before any administrative tribunal or arbitrator for a claim for benefits under the Plan until the claimant has first exhausted the procedures set forth in this section. |
5.09 | Compliance | |
The Plan is intended to comply with the requirements of Code Section 409A and the provisions hereof shall be interpreted in a manner that satisfies the requirements of Code Section 409A and the regulations thereunder, and the Plan shall be operated accordingly. If any provision of the Plan would otherwise frustrate or conflict with this intent, the provision will be interpreted and deemed amended so as to avoid this conflict. | ||
5.10 | Acceleration of or Delay in Payments | |
The Committee, in its sole and absolute discretion, may elect to accelerate the time or form of payment of a benefit owed to the Member hereunder, provided such acceleration is permitted under Treas. Regs. Section 1.409A-3(j)(4). The Committee may also, in its sole and absolute discretion, delay the time for payment of a benefit owed to the Member hereunder, to the extent permitted under Treas. Regs. Section 1.409A-2(b)(7). | ||
5.11 | Construction |
(a) | The Plan is intended to constitute an unfunded deferred compensation arrangement maintained for a select group of management or highly compensated employees within the meaning of Sections 201(2), 301(a)(3), and 401(a)(1) of ERISA, and all rights under this Plan shall be governed by ERISA. Subject to the preceding sentence, the Plan shall be construed, regulated and administered in accordance with the laws of the State of New York, to the extent such laws are not superseded by applicable federal laws. | ||
(b) | The masculine pronoun shall mean the feminine wherever appropriate. |
Page 21
(c) | The illegality of any particular provision of this document shall not affect the other provisions and the document shall be construed in all respects as if such invalid provision were omitted. | ||
(d) | The headings and subheadings in the Plan have been inserted for convenience of reference only and are to be ignored in any construction of the provisions thereof. |
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6.01
Right to Terminate
Notwithstanding any Plan provision to the contrary, the Corporation may, by action of the
Board of Directors, terminate this Plan and the related Deferral Agreements at any time. To
the extent consistent with the rules relating to Plan terminations and liquidation in
Treasury Regulations Section 1.409A-3(j)(4)(ix) or otherwise consistent with Code Section
409A, the Corporation may provide that each Member or Beneficiary shall receive a single sum
payment in cash equal to the balance of the Members Accounts. The single sum payment shall
be made within 90 days following the date the Plan is terminated and shall be in lieu of any
other benefit which may be payable to the Member or Beneficiary under this Plan. Unless so
distributed, in the event of a Plan termination, the Corporation shall continue to maintain
the Deferral Account, the Floor Contribution Account, the Matching Contribution Account, the
Core Contribution Account and the Transition Credit Contribution Account until distributed
pursuant to the terms of the Plan.
6.02
Right to Amend
The Board of Directors or its delegate may amend or modify this Plan and the related
Deferral Agreements in any way either retroactively or prospectively. However, except that
without the consent of the Member or Beneficiary, if applicable, no amendment or
modification shall reduce or diminish such persons right to receive any benefit accrued
hereunder prior to the date of such amendment or modification, and after the occurrence of
an Acceleration Event, no modification or amendment shall be made to Sections 3.03(b) and
4.03.
Page 23
7.01
Administration
(a)
The Committee shall have the exclusive responsibility and complete
discretionary authority to control the operation, management and administration of the
Plan, with all powers necessary to enable it properly to carry out such
responsibilities, including, but not limited to, the power to interpret the Plan and
any related documents, to establish procedures for making any elections called for
under the Plan, to make factual determinations regarding any and all matters arising
hereunder, including, but not limited to, the right to determine eligibility for
benefits, the right to construe the terms of the Plan, the right to remedy possible
ambiguities, inequities, inconsistencies or omissions, and the right to resolve all
interpretive, equitable or other questions arising under the Plan. The decisions of
the Committee on all matters shall be final, binding and conclusive on all persons to
the extent permitted by law.
(b)
To the extent permitted by law, all agents and representatives of the Committee
shall be indemnified by the Corporation and held harmless against any claims and the
expenses of defending against such claims, resulting from any action or conduct
relating to the administration of the Plan, except claims arising from gross
negligence, willful neglect or willful misconduct.
Page | ||||
ARTICLE 1. DEFINITIONS
|
1 | |||
1.01 Adoption Date
|
1 | |||
1.02 Administrative Committee
|
1 | |||
1.03 Beneficiary
|
1 | |||
1.04 Board
|
1 | |||
1.05 Business Day
|
1 | |||
1.06 Code
|
1 | |||
1.07 Corporation
|
1 | |||
1.08 Deferral Account
|
1 | |||
1.09 Deferral Agreement
|
1 | |||
1.10 Deferral Election Deadline
|
2 | |||
1.11 Deferrals
|
2 | |||
1.12 Director Fees
|
2 | |||
1.13 Grandfathered Deferrals
|
2 | |||
1.14 In-Service Subaccount
|
2 | |||
1.15 Non-Employee Director
|
2 | |||
1.16 Participant
|
2 | |||
1.17 Plan
|
3 | |||
1.18 Predecessor Corporation
|
3 | |||
1.19 Predecessor Plan
|
3 | |||
1.20 Prior Deferrals
|
3 | |||
1.21 Prior Deferrals Agreement
|
3 | |||
1.22 Reporting Date
|
3 | |||
1.23 Retirement
|
4 | |||
1.24 Retirement Subaccount
|
4 | |||
1.25 Service Year
|
4 | |||
1.26 Specified Distribution Date
|
4 | |||
1.27 Unforeseeable Emergency
|
4 | |||
|
||||
ARTICLE 2. INTRODUCTION AND PARTICIPATION
|
5 | |||
2.01 Introduction
|
5 | |||
2.02 Participation
|
5 | |||
2.03 Termination of Participation
|
5 | |||
|
||||
ARTICLE 3. DEFERRALS
|
6 | |||
3.01 Deferral Elections
|
6 | |||
3.02 Amount of Deferral
|
7 | |||
3.03 Crediting to Deferral Account
|
7 | |||
3.04 Vesting
|
7 | |||
3.05 Unforeseeable Emergency
|
7 | |||
|
||||
ARTICLE 4. MAINTENANCE OF ACCOUNTS
|
8 | |||
4.01 Adjustment of Account
|
8 |
Page | ||||
4.02 Investment Elections
|
8 | |||
4.03 Changing Investment Elections of Amounts Held in Deferral Accounts
|
9 | |||
4.04 Compliance with Securities Laws and Trading Policies and Procedures
|
9 | |||
4.05 Individual Accounts
|
10 | |||
4.06 Valuation of Accounts
|
10 | |||
|
||||
ARTICLE 5. PAYMENT OF BENEFITS
|
11 | |||
5.01 Time of Payment
|
11 | |||
5.02 Method of Payment
|
14 | |||
5.03 Unforeseeable Emergency
|
14 | |||
5.04 Designation of Beneficiary
|
14 | |||
|
||||
ARTICLE 6. AMENDMENT OR TERMINATION
|
16 | |||
6.01 Right to Amend or Terminate
|
16 | |||
|
||||
ARTICLE 7. GENERAL PROVISIONS
|
17 | |||
7.01 Funding and Payment of Expense
|
17 | |||
7.02 Unsecured Interest
|
17 | |||
7.03 Facility of Payment
|
17 | |||
7.04 Withholding Taxes
|
18 | |||
7.05 Nonalienation
|
18 | |||
7.06 Construction and Governing Law
|
18 | |||
7.07 Discharge of Corporations Obligation
|
18 | |||
7.08 Successors
|
19 | |||
|
||||
ARTICLE 8. ADMINISTRATION
|
20 | |||
8.01 Administration
|
20 |
1.01
Adoption Date
shall have the meaning set forth in Section 2.01(a).
1.02
Administrative Committee
shall mean the Boards Leadership Development and Compensation
Committee or the person or persons appointed by the Boards Leadership Development and
Compensation Committee pursuant to Article 8 hereof to administer the Plan.
1.03
Beneficiary
shall mean the person or persons designated by a Participant pursuant to the
provisions of Section 5.04.
1.04
Board
shall mean the Board of Directors of the Corporation.
1.05
Business Day
shall mean any day on which the New York Stock Exchange, or a successor
thereto, is open.
1.06
Code
shall mean the Internal Revenue Code of 1986, as amended from time to time.
1.07
Corporation
shall mean Xylem Inc., an Indiana corporation, or any successor by merger,
purchase or otherwise; provided, however, that for purposes of deferrals made under the
Predecessor Plan, Corporation shall mean the Predecessor Corporation as the original deferral
recorder.
1.08
Deferral Account
shall mean the bookkeeping account (or subaccounts) maintained for each
Participant to record the amount of Director Fees such Participant has elected to defer in
accordance with Article 3 and/or pursuant to a Prior Deferral Agreement, adjusted pursuant to
Article 4.
1.09
Deferral Agreement
shall mean the completed agreement, including any amendments,
attachments and appendices thereto, in such form and with such title as is approved by the
Leadership Development and Compensation Committee of the Board or the
2
Administrative Committee, between a Non-Employee Director and the Corporation, under which
the Non-Employee Director agrees to defer a portion of his or her Director Fees earned for a
specified Service Year.
1.10
Deferral Election Deadline
shall have the meaning set forth in Section 3.01(a).
1.11
Deferrals
shall mean the amount of deferrals credited to a Participants Deferral Account
pursuant to Section 3.03.
1.12
Director Fees
shall mean the fees paid in cash, including, without limitation, any annual
retainer, monthly fee, Board meeting fee or committee meeting fee that a Non-Employee Director
may be entitled to receive for services as a member of the Board or a committee thereof.
1.13
Grandfathered Deferrals
shall mean deferred Director Fees (and any earnings thereon,
including amounts attributable to dividends on such deferred Director Fees) that were
initially deferred prior to 2005. For avoidance of doubt, an amount will be treated as
initially deferred prior to 2005 if the amount would have been paid before 2005 had it not
been deferred.
1.14
In-Service Subaccount
shall mean the bookkeeping account described in Section 5.01(a)
maintained to record Deferrals (and related gains and losses on such Deferrals) that a
Participant has elected to have paid upon the first to occur of the Specified Distribution
Date, the Participants Retirement or the Participants death.
1.15
Non-Employee Director
shall mean a member of the Board who is not concurrently an employee
of the Corporation.
1.16
Participant
shall mean, except as otherwise provided in Section 2.02, each Non-Employee
Director who has executed a Deferral Agreement pursuant to the requirements of Articles 2 and
3.
3
1.17
Plan
shall mean the Xylem Deferred Compensation Plan For Non-Employee Directors, as set
forth in this document, as it may be amended from time to time; provided, however, that the
term Plan shall include the Predecessor Plan with respect to all prior service and
participation by a Participant with the Predecessor Corporation and preserving all rights by
Participants regarding Grandfathered Deferrals.
1.18
Predecessor Corporation
shall mean the Corporation as such term was defined under the
Predecessor Plan immediately prior to October 31, 2011.
1.19
Predecessor Plan
shall mean the ITT Corporation Deferred Compensation Plan for Non-Employee
Directors as in effect prior to October 31, 2011.
1.20
Prior Deferrals
shall mean Deferrals relating to annual cash retainers that were (a)
initially deferred after 2004 pursuant to a Prior Deferral Agreement, (b) not yet distributed
as of the Adoption Date and (c) deferred by Non-Employee Directors who consent to have their
Prior Deferrals become subject to the terms of the Plan. For avoidance of doubt, (a) an amount
will be treated as initially deferred after 2004 if the amount would have been paid after 2004
had it not been deferred and (b) the term Prior Deferrals shall not include any restricted
stock, restricted stock units or Grandfathered Deferrals.
1.21
Prior Deferral Agreement
shall mean a deferral agreement and/or document that was effective
prior to the Adoption Date and that governs the Directors Prior Deferrals. For avoidance of
doubt, the term Prior Deferral Agreement shall not include any agreement or document governing
(a) restricted stock or restricted stock unit awards or a Non-Employee Directors election to
receive restricted stock or restricted stock unit awards or (b) Grandfathered Deferrals.
1.22
Reporting Date
shall mean the first Business Day of each calendar month following the
Adoption Date, or such other day as the Administrative Committee may determine.
4
1.23
Retirement
shall mean, subject to Section 8.01(c), the termination of a Non-Employee
Directors service as a member of the Board.
1.24
Retirement Subaccount
shall mean the bookkeeping account described in Section 5.01(a)
maintained to record Deferrals (and related gains and losses on such Deferrals) that a
Participant has elected to have paid upon the first to occur of the Participants Retirement
or death.
1.25
Service Year
shall mean the period beginning on the date of the Annual Meeting of
Shareholders in any year and ending on the day immediately preceding the date of the Annual
Meeting of Shareholders for the subsequent year, or such other period as shall be specified
from time to time by the Administrative Committee.
1.26
Specified Distribution Date
shall mean a Business Day selected by a Participant pursuant to
Section 5.01(a).
1.27
Unforeseeable Emergency
shall mean a severe financial hardship to a Participant resulting
from (a) an illness or accident of the Participant or the Participants spouse, beneficiary or
dependent (as defined in Code Section 152, without regard to Section 152(b)(1), (b)(2) and
(d)(1)(B)), (b) loss of the Participants property due to casualty (including the need to
rebuild a home following damage to the home not otherwise covered by insurance) or (c) other
similar extraordinary and unforeseeable circumstances arising as a result of events beyond the
control of the Participant; provided, however, that an Unforeseeable Emergency shall only
exist to the extent the severe financial hardship would constitute an Unforeseeable Emergency
under Code Section 409A, related regulations and other applicable guidance.
5
2.01
Introduction
(a)
The Plan was adopted by the Board on October 11, 2011 (the Adoption Date).
(b)
The Plan shall govern (i) Deferrals (as adjusted pursuant to Article 4) made
pursuant to a Deferral Agreement executed after the Adoption Date and (ii) Prior
Deferrals (as adjusted pursuant to Article 4). All Prior Deferral Agreements will be
deemed amended to the extent the terms of the Prior Deferral Agreement are inconsistent
with the terms of the Plan so that, to the extent of any such inconsistency, the terms
of the Plan will govern.
2.02
Participation
(a)
All Non-Employee Directors shall be eligible to participate in the Plan. An
individual who is determined to be a Non-Employee Director with respect to a Service
Year and who desires to have Deferrals credited on his or her behalf pursuant to
Article 3 must execute a Deferral Agreement with the Administrative Committee
authorizing Deferrals under the Plan in accordance with the provisions of Sections
2.02(b) and 3.01.
(b)
The Deferral Agreement shall be in writing and properly completed upon a form
approved by the Administrative Committee, which shall be the sole judge of the proper
completion thereof. Such Deferral Agreement shall provide for the deferral of all or a
portion of the Non-Employee Directors Director Fees and shall include such other
provisions as the Administrative Committee deems appropriate.
2.03
Termination of Participation
Participation shall cease when all benefits to which a Participant or Beneficiary is
entitled to hereunder are distributed.
6
3.01
Deferral Elections
(a)
Except as provided in Section 3.01(d), a Non-Employee Director may elect to
defer Director Fees that will be earned in the Service Year that begins in the
following calendar year by filing a Deferral Agreement with the Administrative
Committee on or before (i) the close of business on the last Business Day of the
calendar year preceding the calendar year in which such Service Year begins or (ii)
such earlier date as may be specified by the Administrative Committee (the Deferral
Election Deadline).
(b)
Except as provided in Sections 3.01(d) and 3.05 and subject to such
restrictions as the Administrative Committee may establish from time to time, a
Non-Employee Directors election to defer Director Fees earned in any Service Year
shall become irrevocable on the Deferral Election Deadline. A Non-Employee Director may
revoke or change his or her election to defer Director Fees at any time prior to the
date the election becomes irrevocable, subject to such restrictions as the
Administrative Committee may establish from time to time. Any such revocation or change
shall be made in a form and manner determined by the Administrative Committee.
(c)
Except as provided in Section 3.01(d), a Participants Deferral Agreement shall
apply only with respect to Director Fees earned in the Service Year that begins in the
calendar year following the calendar year in which the Deferral Agreement is filed with
the Administrative Committee. A Non-Employee Director must file, in accordance with the
provisions of Section 3.01(a), a new Deferral Agreement to defer Director Fees earned
in any subsequent Service Year.
(d)
Notwithstanding anything in this Section 3.01 to the contrary, if a
Non-Employee Director first becomes eligible to participate in the Plan after the
Deferral Election Deadline, but before the first day of the Service Year that begins in
the calendar year in which the Non-Employee Director first becomes eligible to
participate in the
7
Plan, the Non-Employee Director may, within the period beginning on the date the Non-Employee Director first becomes eligible to participate in the Plan and ending on the earlier of (i) 30 days after such date or (ii) the first day of such Service Year, elect to defer Director Fees that will be earned in such Service Year. |
3.02 | Amount of Deferral | |
Unless the Administrative Committee provides otherwise, a Non-Employee Director may defer all or none of his or her Director Fees, but not a portion of such Director Fees. | ||
3.03 | Crediting to Deferral Account | |
Except as provided below with respect to Prior Deferrals, Deferrals shall be credited to a Participants Deferral Account on the day such Director Fees would have otherwise been paid to the Participant in the absence of a Deferral Agreement. Deferrals credited to a Participants Deferral Account which are deemed invested in a Corporation phantom stock fund will be credited based on the closing price of the Corporations common stock on the New York Stock Exchange (or a successor thereto) on that day or the next Business Day if such day is not a Business Day. Prior Deferrals shall be credited to a Participants Deferral Account as of the Adoption Date. | ||
3.04 | Vesting | |
A Participant shall at all times be 100% vested in his or her Deferral Account. | ||
3.05 | Unforeseeable Emergency | |
Notwithstanding the foregoing provisions of this Article 3, in the event a distribution is made to the Participant due to an Unforeseeable Emergency, a Participants Deferral Agreement in effect at that time shall be cancelled and subsequent Deferrals under that Deferral Agreement shall cease. |
8
4.01
Adjustment of Account
(a)
The Administrative Committee shall designate at least one investment fund or
index of investment performance and may designate additional investment funds or
investment indices (including a Corporation phantom stock fund) to be used to measure
the investment performance of a Participants Deferral Account. The designation of any
such investment funds or indices shall not require the Corporation to invest or earmark
its general assets in any specific manner. The Administrative Committee may change the
designation of investment funds or indices from time to time, in its sole discretion,
and any such change shall not be deemed to be an amendment affecting Participants
rights under Section 6.01.
(b)
As of each Reporting Date, each Deferral Account shall be credited or debited
with the amount of earnings or losses with which such Deferral Account would have been
credited or debited, assuming it had been invested in one or more investment funds, or
earned the rate of return of one or more indices of investment performance, designated
by the Administrative Committee and elected by the Participant pursuant to Section 4.02
for purposes of measuring the investment performance of his or her Deferral Account.
Any portion of a Participants Deferral Account deemed invested in a Corporation
phantom stock fund shall be credited with dividend equivalents, as and when dividends
are paid on the Corporations common stock. Any such dividend equivalents shall be
deemed invested in additional shares of Corporation phantom stock, and such shares of
phantom stock shall be deemed to be purchased on the day the dividends are paid by the
Corporation.
4.02
Investment Elections
If the Administrative Committee designates more than one investment fund or indices under
Section 4.01, Participants may designate the investment fund or indices that will be used to
measure the investment performance of their Deferrals. Unless the Administrative
Committee provides otherwise, such elections shall be made when the Deferral
9
Agreement is executed. Unless the Administrative Committee provides otherwise, a Participants investment election made with respect to Prior Deferrals shall continue to govern such Prior Deferrals |
4.03 | Changing Investment Elections of Amounts Held in Deferral Accounts | |
Unless the Administrative Committee provides otherwise, Participants may not change investment elections for amounts already deferred. If the Administrative Committee allows Participants to change their investment elections, such changes may only be made in accordance with Section 4.04 and such other terms and conditions as may be established by the Administrative Committee from time to time. | ||
4.04 | Compliance with Securities Laws and Trading Policies and Procedures | |
A Participants ability to direct investments into or out of a Corporation phantom stock fund shall be subject to such terms, conditions and procedures as the Plan Administrator may prescribe from time to time to assure compliance with Rule 16b-3 promulgated under Section 16(b) of the Securities Exchange Act of 1934, as amended (Rule 16b-3), and other applicable requirements. Such procedures also may limit or restrict a Participants ability to make (or modify previously made) deferral and distribution elections under the Plan. In furtherance, and not in limitation, of the foregoing, to the extent a Participant acquires any interest in an equity security under the Plan for purposes of Section 16(b), the Participant shall not dispose of that interest within six (6) months, unless such disposition is exempted by Section 16(b) or any rules or regulations promulgated thereunder or with respect thereto. Any election by a Participant to invest any amount in a Corporation phantom stock fund, and any elections to transfer amounts from or to the Corporation phantom stock fund to or from any other investment fund or indices, shall be subject to all applicable securities law requirements, including but not limited to the those reflected in the prior sentence and Rule 16b-3, as well as all applicable stock trading policies and procedures of the Corporation. To the extent any election violates any securities law requirement, applicable trading policies and procedures of the Corporation, or any terms or conditions established from time to time |
10
by the Administrative Committee relating to such elections (whether or not reflected in the Plan), the election shall be void. |
4.05 | Individual Accounts | |
The Administrative Committee shall maintain, or cause to be maintained on its books, records showing the individual balance of each Participants Deferral Account. At least once a year each Participant shall be furnished with a statement setting forth the value of his or her Deferral Account. | ||
4.06 | Valuation of Accounts |
(a) | The Administrative Committee shall value or cause to be valued each Participants Deferral Account as the Administrative Committee determines is necessary for the proper administration of the Plan. | ||
(b) | Whenever an event requires a determination of the value of a Participants Deferral Account, the value shall be computed as of the date of the event, or if the date of the event is not a Business Day, the close of the next Business Day, except as otherwise specified in this Plan. | ||
(c) | Notwithstanding any other provision of the Plan to the contrary, all prior service and participation by a Participant with the Predecessor Corporation shall be deemed credited in full towards a Participants service and participation with the Company. |
11
5.01
Time of Payment
(a)
Subject to the limitations in Section 5.01(b), each time a Participant elects
to defer Director Fees, the Participant shall specify whether the deferred Director
Fees will be allocated to the Participants Retirement Subaccount or In-Service
Subaccount.
(1) | Retirement Subaccount. Except as otherwise provided in the Plan, amounts allocated to the Retirement Subaccount (after adjustment to reflect gains and losses during the deferral period) will be paid upon the first to occur of the Participants Retirement or death. | ||
(2) | In-Service Subaccount. Except as otherwise provided in the Plan, amounts allocated to the In-Service Subaccount (after adjustment to reflect gains and losses during the deferral period) will be paid upon the first to occur of (A) a Business Day designated by the Participant (the Specified Distribution Date), (B) the Participants Retirement or (C) the Participants death. The Specified Distribution Date for the In-Service Subaccount shall be the Business Day designated by the Participant on his or her initial Deferral Agreement establishing the In-Service Subaccount; unless otherwise modified in accordance with the provisions of Section 5.01(c) or (e) below. |
Unless the Administrative Committee provides otherwise, Participants may not bifurcate any one Service Years deferred Director Fees between the Retirement Subaccount and the In-Service Subaccount. | ||
Prior Deferrals will be allocated to the Participants Retirement Subaccount and/or In-Service Subaccount as of the Adoption Date based on the payment election(s) then in effect with respect to such Prior Deferrals. If a Participants payment election(s) in effect with respect to Prior Deferrals as of the Adoption Date provides for payment at a specified date, that specified date shall be the Participants Specified Distribution Date for the Participants In-Service Subaccount. |
12
(b) | Unless the Administrative Committee provides otherwise, (i) a Participant may have only one In-Service Subaccount established on his or her behalf (and only one Specified Distribution Date) at any one time and (ii) once a Participant has selected a Specified Distribution Date, the Participant may not select an additional Specified Distribution Date until the amounts in the Participants In-Service Subaccount have been distributed. | ||
(c) | In accordance with such procedures as the Administrative Committee may prescribe, Participants may elect to delay the payment of amounts in the Participants In-Service Subaccount by specifying a new Specified Distribution Date, subject to the following limitations: |
(1) | such election must be made at least 12 months prior to the Specified Distribution Date then in effect and such election will not become effective until at least 12 months after the date on which the election is made; and | ||
(2) | the new Specified Distribution Date shall be a Business Day that is not less than five (5) years from the Specified Distribution Date then in effect. |
Once a Participants election of a new Specified Distribution Date becomes effective, all amounts in the Participants In-Service Subaccount (whether allocated before or after the election of the new Specified Distribution Date) will be paid upon the first to occur of the new Specified Distribution Date, the Participants Retirement or the Participants death. A Participant may elect to delay a Specified Distribution Date pursuant to this Section 5.01(c) more than once, provided that all such elections comply with the provisions of this Section 5.01(c). | ||
It is the Corporations intent that the provisions of this Section 5.01(c) comply with the subsequent election provisions in Code Section 409A(a)(4)(C), related regulations and other applicable guidance, and this Section 5.01(c) shall be interpreted accordingly. The Administrative Committee may impose additional restrictions or conditions on a Participants ability to elect a new Specified Distribution Date pursuant to this Section |
13
5.01(c). The Participant may revoke or change his or her election pursuant to this Section 5.01(c) at any time prior to the deadline for making such election, subject to such restrictions as the Administrative Committee may establish from time to time. Any such revocation or change shall be made in a form and manner determined by the Administrative Committee. For avoidance of doubt, a Participant may not elect to delay payment of amounts in the Participants Retirement Subaccount or transfer amounts between his or her Retirement Subaccount and his or her In-Service Subaccount. |
(d) | Notwithstanding anything in the Plan to the contrary, if it is not possible to make payment on the date of the Participants Retirement or death, or the Specified Payment Date, as the case may be, payment shall be made as soon as practicable thereafter, but in all events subject to the following limitations: |
(1) | payments to be made upon the Participants Retirement or death shall in no event be made later than (90) days after the date of Retirement or death, as the case may be, and | ||
(2) | payments to be made on a Specified Distribution Date shall in no event be made later than the 15th day of the third calendar month following such Specified Distribution Date. |
If payment is made within one of the periods described in this Section 5.01(d), neither the Participant nor any Beneficiary may elect, directly or indirectly, when within such period payment shall be made. |
(e) | Notwithstanding anything in the Plan to the contrary, the Administrative Committee may, in its discretion and subject to such terms and conditions as it may from time to time prescribe, allow Participants to change the time of payment of all or a portion of their Deferral Accounts in accordance with applicable transition relief provided with respect to Code Section 409A. |
14
5.02 | Method of Payment | |
The distribution of the Participants Deferral Account shall be made to the Participant or, if the Participant dies, to the Participants Beneficiary, in the form of a single lump sum cash payment. | ||
5.03 | Unforeseeable Emergency | |
Notwithstanding anything in the Plan or in a Deferral Agreement to the contrary, the Administrative Committee may, if it determines an Unforeseeable Emergency exists which cannot be satisfied from other sources, approve a request by the Participant for a withdrawal from his or her Deferral Account. Such request shall be made in a time and manner determined by the Administrative Committee. The payment made from a Participants Deferral Account pursuant to the provisions of this Section 5.03 shall be limited to the amount reasonably necessary to satisfy the emergency need (which may include amounts necessary to pay any Federal, state, local or foreign income taxes or penalties reasonably anticipated to result from the distribution). Determinations of amounts necessary to satisfy the emergency need must take into account any additional compensation that is available, other than additional compensation that, due to the Unforeseeable Emergency, is available under another nonqualified deferred compensation plan but that has not actually been paid. This Section 5.03 is intended to comply with Code Section 409A, related regulations and any other applicable guidance and shall be interpreted accordingly so that distributions shall be permitted under this Section 5.03 only to the extent they comply with Code Section 409A. | ||
5.04 | Designation of Beneficiary | |
Each Participant shall file with the Administrative Committee a written designation of one or more persons as the Beneficiary who shall be entitled to receive the amount, if any, payable under the Plan upon his or her death pursuant to Article 5. A Participant may, from time to time, revoke or change his or her Beneficiary designation without the consent of any prior Beneficiary by filing a new designation with the Administrative Committee. The last such designation received by the Administrative Committee shall be controlling; provided, however, that no designation, or change or revocation thereof, shall |
15
be effective unless received by the Administrative Committee prior to the Participants death, and in no event shall it be effective as of a date prior to such receipt. If no such Beneficiary designation is in effect at the time of a Participants death, or if no designated Beneficiary survives the Participant, the Participants surviving spouse, if any, shall be the Participants Beneficiary, otherwise the Participants estate shall be the Participants Beneficiary, and shall receive the payment of the amount, if any, payable under the Plan upon the Participants death. |
16
6.01
Right to Amend or Terminate
Notwithstanding any Plan provision to the contrary, the Corporation may, by action of the
Board, amend or terminate the Plan at any time; provided, however, that no such amendment or
termination of the Plan that reduces a Participants Deferral Account shall be effective
without the prior written consent of the Participants whose Deferral Accounts are reduced by
the amendment or termination. To the extent consistent with the rules relating to plan
terminations and liquidations in Treasury Regulation Section 1.409A-3(j)(4)(ix) or otherwise
consistent with Code Section 409A, the Board may provide that, without the prior written
consent of Participants, all of the Participants Deferral Accounts shall be distributed in
a lump sum upon termination of the Plan. Unless so distributed, in the event of a Plan
termination, the Corporation shall continue to maintain the Deferral Accounts until
distributed pursuant to the terms of the Plan and Participants shall remain 100% vested in
all amounts credited to their Deferral Accounts.
17
7.01
Funding and Payment of Expenses
All amounts payable in accordance with this Plan shall constitute a general unsecured
obligation of the Corporation. Such amounts, as well as any administrative costs relating to
the Plan, shall be paid out of the general assets of the Corporation. The Administrative
Committee may decide that a Participants Deferral Account may be reduced to reflect
allocable administrative expenses.
7.02
Unsecured Interest
Neither the Corporation nor the Administrative Committee in any way guarantees the
performance of the investment funds or indices a Participant may designate under Article 4.
No special or separate fund shall be established, and no segregation of assets shall be
made, to assure the payments hereunder. No Participant hereunder shall have any right,
title, or interest whatsoever in any specific assets of the Corporation. Nothing contained
in this Plan and no action taken pursuant to its provisions shall create or be construed to
create a trust of any kind or a fiduciary relationship between the Corporation and a
Participant or any other person. To the extent that any person acquires a right to receive
payments under this Plan, such right shall be no greater than the right of any unsecured
creditor of the Corporation.
7.03
Facility of Payment
In the event that the Administrative Committee shall find that a Participant or Beneficiary
is incompetent to care for his or her affairs or if a Beneficiary is a minor, the
Administrative Committee may direct that any benefit payment due him or her, unless claim
shall have been made therefor by a duly appointed legal representative, be paid on his or
her behalf to his or her spouse, a child, a parent or other relative, and any such payment
so made shall thereby be a complete discharge of the liability of the Corporation and the
Plan for that payment.
18
7.04
Withholding Taxes
The Corporation shall have the right to deduct from each payment to be made under the Plan
any required withholding taxes.
7.05
Noalienation
Subject to any applicable law and except as provided in Section 5.04, no benefit under the
Plan shall be subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or charge, and any attempt to do so shall be void, nor shall any such
benefit be in any manner liable for or subject to garnishment, attachment, execution or
levy, or liable for or subject to the debts, contracts, liabilities, engagements or torts of
a person entitled to such benefits.
7.06
Construction and Governing Law
(a)
The Plan shall be construed, regulated and administered in accordance with the
laws of the State of New York, subject to the provisions of applicable federal laws.
(b)
The masculine pronoun shall mean the feminine wherever appropriate. To the
extent any section of the Code, Treasury Regulations or the Securities Exchange Act of
1934 or any rule promulgated under the Securities Exchange Act of 1934 that is
referenced in the Plan shall be amended or superseded, such reference shall be deemed
to be to the amended or superseding section or rule.
(c)
The illegality of any particular provision of this document shall not affect
the other provisions, and the document shall be construed in all respects as if such
invalid provision were omitted.
7.07
Discharge of Corporations Obligation
The payment by the Corporation of the benefits due under the Plan and/or any Deferral
Agreement or Prior Deferral Agreement to the Participant or his or her Beneficiary shall
discharge the Corporations obligation with respect thereto, and the Participant or
19
Beneficiary shall have no further rights under this Plan or the Deferral Agreements or Prior Deferral Agreements upon receipt by the appropriate person of all such benefits. |
7.08 | Successors | |
The Plan shall be binding upon the successors and assigns of the Corporation, whether such succession is by purchase, merger or otherwise. |
20
8.01
Administration
(a)
The Plan shall be administered by the Administrative Committee. The
Administrative Committee shall have the exclusive responsibility and complete
discretionary authority to control the operation, management and administration of the
Plan, with all powers necessary to enable it properly to carry out such
responsibilities, including, but not limited to, the power to interpret the Plan and
any related documents, to establish procedures for making any elections called for
under the Plan, to make factual determinations regarding any and all matters arising
under the Plan, including, but not limited to, the right to determine eligibility for
benefits, the right to construe the terms of the Plan, the right to remedy possible
ambiguities, inequities, inconsistencies or omissions, and the right to resolve all
interpretive, equitable or other questions arising under the Plan.
(b)
The Administrative Committee may delegate all or part of its administrative
duties to one or more persons, whether or not such person or persons are members of the
Administrative Committee or employees of the Corporation. The Administrative Committee
(and, to the extent consistent with the scope of delegated administrative authority,
the person or persons delegated authority hereunder) may engage agents and
representatives, including recordkeepers and legal counsel, in connection with the
administration of the Plan. To the extent permitted by law, the Administrative
Committee and the person or persons delegated administrative authority under the Plan
shall be indemnified by the Corporation and held harmless against any claims and the
expenses of defending against such claims, resulting from any action or conduct
relating to the administration of the Plan, except claims arising from gross
negligence, willful neglect or willful misconduct.
(c)
It is the intent of the Corporation that the Plan complies with Code Section
409A, related regulations and other applicable guidance promulgated with respect
thereto and the provisions of the Plan shall be interpreted to be consistent therewith.
21
Without limiting the foregoing, a Participant shall not be deemed to have experienced a Retirement until the Participant has had a separation from service, as that term is used in Code Section 409A(a)(2)(A)(i) and defined in related regulations or other applicable guidance. |
3
4
5
6
7
8
9
10
3
4
5
| Benefits and Perquisites |
6
7
8
9
10
White Plains, New York 10064 |
11
Years of Service | Months of Base Pay | |||
Less than 4
|
12 | |||
4
|
13 | |||
5
|
14 | |||
6
|
15 | |||
7
|
16 | |||
8
|
17 | |||
9
|
18 | |||
10
|
19 | |||
11
|
20 | |||
12
|
21 | |||
13
|
22 | |||
14
|
23 | |||
15 or more
|
24 |
3
4
5
6
1. | Grant of Options . In accordance with, and subject to, the terms and conditions of the Plan and this Agreement, the Company hereby confirms the grant on November 7, 2011, (the Grant Date) to the Optionee of the option to purchase from the Company all or any part of an aggregate of #,### Shares (the Option), at the purchase price of $[ ] per Share (the Option Price or Exercise Price). The Option shall be a Nonqualified Stock Option. |
2. | Terms and Conditions . It is understood and agreed that the Option is subject to the following terms and conditions: |
(a) | Expiration Date . The Option shall expire on November 7, 2021, or, if the Optionees employment terminates before that date, on the date specified in subsection (f) below. | ||
(b) | Exercise of Option . The Option may not be exercised until it has become vested. | ||
(c) | Vesting . Subject to subsections 2(a) and 2(f), the Option shall vest in three installments as follows: |
(i) | 1/3 of the Option shall vest on November 7, 2012, | ||
(ii) | 1/3 of the Option shall vest on November 7, 2013, and | ||
(iii) | 1/3 of the Option shall vest on November 7, 2014, |
Subject to subsections 2(a) and 2(f), to the extent not earlier vested pursuant to paragraphs (i), (ii), and (iii) of this subsection (c), the Option shall vest in full |
upon an Acceleration Event (as defined in the Plan). |
(d) | Payment of Exercise Price . Permissible methods for payment of the Exercise Price upon exercise of the Option are described in Section 6.6 of the Plan, or, if the Plan is amended, successor provisions. In addition to the methods of exercise permitted by Section 6.6 of the Plan, the Optionee may exercise all or part of the Option by way of (i) broker-assisted cashless exercise in a manner consistent with the Federal Reserve Boards Regulation T, unless the Committee determines that such exercise method is prohibited by law, or (ii) net-settlement, whereby the Optionee directs the Company to withhold Shares that otherwise would be issued upon exercise of the Option having an aggregate Fair Market Value on the date of the exercise equal to the Exercise Price, or the portion thereof being exercised by way of net-settlement (rounding up to the nearest whole Share). | ||
(e) | Tax Withholding . The Company shall have the power and the right to deduct or withhold, or require the Optionee to remit to the Company, all applicable federal, state, and local taxes, domestic or foreign, required by law or regulation to be withheld with respect to the exercise of the Option. The Optionee may elect to satisfy the withholding requirement, in whole or in part, by having the Company withhold Shares that otherwise would be issued upon exercise of the Option, with the number of Shares withheld having a Fair Market Value on the date the tax is to be determined equal to the minimum statutory total tax that could be imposed on the transaction (rounding up to the nearest whole Share). Any such election shall be subject to any restrictions or limitations that the Committee, in its sole discretion, deems appropriate. | ||
(f) | Effect of Termination of Employment . | ||
If the Optionees employment terminates before November 7, 2021, the Option shall expire on the date set forth below, as applicable: |
(i) | Termination due to Death . If the Optionees employment is terminated as a result of the Optionees death, the Option shall expire on the earlier of November 7, 2021 , or the date three years after the termination of the Optionees employment due to death. If all or any portion of the Option is not vested at the time of the Optionees termination of employment due to death, the Option shall immediately become 100% vested. | ||
(ii) | Termination due to Disability . If the Optionees employment is terminated as a result of the Optionees Disability (as defined below), the Option shall expire on the earlier of November 7, 2021, or the date five years after the termination of the Optionees employment due to Disability. If all or any portion of the Option is not vested at the time of the termination of the Optionees employment due to Disability, the Option shall immediately become 100% vested. | ||
(iii) | Termination due to Retirement . If the Optionees employment is terminated as a result of the Optionees Retirement (as defined below), the Option shall expire on the earlier of November 7, 2021, or the date five years after the termination of the Optionees employment due to |
Retirement. If all or any portion of the Option is not vested at the time of the Optionees termination of employment due to Retirement, a prorated portion of the unvested portion of the Option shall immediately vest as of the date of the termination of employment (see Prorated Vesting Upon Retirement below). Any remaining unvested portion of the Option shall expire as of the date of the termination of the Optionees employment. For purposes of this subsection 2(f)(iii), the Optionee shall be considered employed during any period in which the Optionee is receiving severance payments (disregarding any delays required to comply with tax or other requirements), and the date of the termination of the Optionees employment shall be the last day of any such severance period. |
(iv) | Cause . If the Optionees employment is terminated by the Company (or an Affiliate, as the case may be) for cause (as determined by the Committee), the vested and unvested portions of the Option shall expire on the date of the termination of the Optionees employment. | ||
(v) | Voluntary Termination or Other Termination by the Company . If the Optionees employment is terminated by the Optionee or terminated by the Company (or an Affiliate, as the case may be) for other than cause (as determined by the Committee), and not because of the Optionees Retirement, Disability or death, the vested portion of the Option shall expire on the earlier of November 7, 2021, or the date three months after the termination of the Optionees employment. Any portion of the Option that is not vested (or the entire Option, if no part was vested) as of the date the Optionees employment terminates shall expire immediately on the date of termination of employment, and such unvested portion of the Option (the entire Option, if no portion was vested on the date of termination) shall not thereafter be exercisable. For purposes of this subsection 2(f)(v), the Optionee shall be considered employed during any period in which the Optionee is receiving severance payments, and the date of the termination of the Optionees employment shall be the last day of any such severance period. |
Notwithstanding the foregoing, if an Optionees employment is terminated on or after an Acceleration Event (A) by the Company (or an Affiliate, as the case may be) for other than cause (as determined by the Committee), and not because of the Optionees Retirement, Disability, or death, or (B) by the Optionee because the Optionee in good faith believed that as a result of such Acceleration Event he or she was unable effectively to discharge his or her present duties or the duties of the position the Optionee occupied just prior to the occurrence of such Acceleration Event, the Option shall in no event expire before the earlier of the date that is 7 months after the Acceleration Event or November 7, 2021, . | |||
Retirement . For purposes of this Agreement, the term Retirement shall mean the termination of the Optionees employment if, at the time of such termination, the Optionee is eligible to commence receipt of retirement benefits under a traditional formula defined benefit pension plan maintained by the Company or an Affiliate (or would be eligible to receive such benefits if he or she were a participant in such a traditional formula defined benefit pension plan) or if no such |
plan is maintained, the first day of the month which coincides with or follows the Optionees 65th birthday. |
Disability . For purposes of this Agreement, the term Disability shall mean the complete and permanent inability of the Optionee to perform all of his or her duties under the terms of his or her employment, as determined by the Committee upon the basis of such evidence, including independent medical reports and data, as the Committee deems appropriate or necessary. | |||
Prorated Vesting Upon Retirement . The prorated portion of an Option that vests upon termination of the Optionees employment due to the Optionees Retirement shall be determined by multiplying the total number of unvested Shares subject to the Option at the time of the termination of the Optionees employment by a fraction, the numerator of which is the number of full months the Optionee has been continually employed since the Grant Date and the denominator of which is 36. For this purpose, full months of employment shall be based on monthly anniversaries of the Grant Date, not calendar months. | |||
(g) | Compliance with Laws and Regulations . The Option shall not be exercised at any time when its exercise or the delivery of Shares hereunder would be in violation of any law, rule, or regulation that the Company may find to be valid and applicable. | ||
(h) | Optionee Bound by Plan and Rules . The Optionee hereby acknowledges receipt of a copy of the Plan and this Agreement and agrees to be bound by the terms and provisions thereof as amended from time to time. The Optionee agrees to be bound by any rules and regulations for administering the Plan as may be adopted by the Committee during the life of the Option. Terms used herein and not otherwise defined shall be as defined in the Plan. | ||
(i) | Governing Law . This Agreement is issued, and the Option evidenced hereby is granted, in White Plains, New York and shall be governed and construed in accordance with the laws of the State of New York, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. |
Agreed to:
|
XYLEM INC. | |
|
||
|
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(Online acceptance constitutes agreement)
|
||
|
||
Dated:
|
Dated: November 7, 2011 | |
Enclosures
|
1. | Grant of Options . In accordance with, and subject to, the terms and conditions of the Plan and this Agreement, the Company hereby confirms the grant on November 7, 2011, (the Grant Date) to the Optionee of the option to purchase from the Company all or any part of an aggregate of #,### Shares (the Option), at the purchase price of $[ ] per Share (the Option Price or Exercise Price). The Option shall be a Nonqualified Stock Option. |
2. | Terms and Conditions . It is understood and agreed that the Option is subject to the following terms and conditions: |
(a) | Expiration Date . The Option shall expire on November 7, 2021, or, if the Optionees employment terminates before that date, on the date specified in subsection (f) below. | ||
(b) | Exercise of Option . The Option may not be exercised until it has become vested. | ||
(c) | Vesting . Subject to subsections 2(a) and 2(f), the Option shall vest in three installments as follows: |
(i) | 1/3 of the Option shall vest on November 7, 2012, | ||
(ii) | 1/3 of the Option shall vest on November 7, 2013, and | ||
(iii) | 1/3 of the Option shall vest on November 7, 2014, |
Subject to subsections 2(a) and 2(f), to the extent not earlier vested pursuant to paragraphs (i), (ii), and (iii) of this subsection (c), the Option shall vest in full |
upon an Acceleration Event (as defined in the Plan). | |||
(d) | Payment of Exercise Price . Permissible methods for payment of the Exercise Price upon exercise of the Option are described in Section 6.6 of the Plan, or, if the Plan is amended, successor provisions. In addition to the methods of exercise permitted by Section 6.6 of the Plan, the Optionee may exercise all or part of the Option by way of (i) broker-assisted cashless exercise in a manner consistent with the Federal Reserve Boards Regulation T, unless the Committee determines that such exercise method is prohibited by law, or (ii) net-settlement, whereby the Optionee directs the Company to withhold Shares that otherwise would be issued upon exercise of the Option having an aggregate Fair Market Value on the date of the exercise equal to the Exercise Price, or the portion thereof being exercised by way of net-settlement (rounding up to the nearest whole Share). | ||
(e) | Tax Withholding . The Company shall have the power and the right to deduct or withhold, or require the Optionee to remit to the Company, all applicable federal, state, and local taxes, domestic or foreign, required by law or regulation to be withheld with respect to the exercise of the Option. The Optionee may elect to satisfy the withholding requirement, in whole or in part, by having the Company withhold Shares that otherwise would be issued upon exercise of the Option, with the number of Shares withheld having a Fair Market Value on the date the tax is to be determined equal to the minimum statutory total tax that could be imposed on the transaction (rounding up to the nearest whole Share). Any such election shall be subject to any restrictions or limitations that the Committee, in its sole discretion, deems appropriate. | ||
(f) | Effect of Termination of Employment . | ||
If the Optionees employment terminates before November 7, 2021, the Option shall expire on the date set forth below, as applicable: |
(i) | Termination due to Death . If the Optionees employment is terminated as a result of the Optionees death, the Option shall expire on the earlier of November 7, 2021 , or the date three years after the termination of the Optionees employment due to death. If all or any portion of the Option is not vested at the time of the Optionees termination of employment due to death, the Option shall immediately become 100% vested. | ||
(ii) | Termination due to Disability . If the Optionees employment is terminated as a result of the Optionees Disability (as defined below), the Option shall expire on the earlier of November 7, 2021, or the date five years after the termination of the Optionees employment due to Disability. If all or any portion of the Option is not vested at the time of the termination of the Optionees employment due to Disability, the Option shall immediately become 100% vested. | ||
(iii) | Termination due to Retirement . If the Optionees employment is terminated as a result of the Optionees Retirement (as defined below), the Option shall expire on the earlier of November 7, 2021, or the date five years after the termination of the Optionees employment due to |
Retirement. If all or any portion of the Option is not vested at the time of the Optionees termination of employment due to Retirement, a prorated portion of the unvested portion of the Option shall immediately vest as of the date of the termination of employment (see Prorated Vesting Upon Retirement below). Any remaining unvested portion of the Option shall expire as of the date of the termination of the Optionees employment. For purposes of this subsection 2(f)(iii), the Optionee shall be considered employed during any period in which the Optionee is receiving severance payments (disregarding any delays required to comply with tax or other requirements), and the date of the termination of the Optionees employment shall be the last day of any such severance period. | |||
(iv) | Cause . If the Optionees employment is terminated by the Company (or an Affiliate, as the case may be) for cause (as determined by the Committee), the vested and unvested portions of the Option shall expire on the date of the termination of the Optionees employment. | ||
(v) | Voluntary Termination or Other Termination by the Company . If the Optionees employment is terminated by the Optionee or terminated by the Company (or an Affiliate, as the case may be) for other than cause (as determined by the Committee), and not because of the Optionees Retirement, Disability or death, the vested portion of the Option shall expire on the earlier of November 7, 2021, or the date three months after the termination of the Optionees employment. Any portion of the Option that is not vested (or the entire Option, if no part was vested) as of the date the Optionees employment terminates shall expire immediately on the date of termination of employment, and such unvested portion of the Option (the entire Option, if no portion was vested on the date of termination) shall not thereafter be exercisable. For purposes of this subsection 2(f)(v), the Optionee shall be considered employed during any period in which the Optionee is receiving severance payments, and the date of the termination of the Optionees employment shall be the last day of any such severance period. |
Notwithstanding the foregoing, if an Optionees employment is terminated on or after an Acceleration Event (A) by the Company (or an Affiliate, as the case may be) for other than cause (as determined by the Committee), and not because of the Optionees Retirement, Disability, or death, or (B) by the Optionee because the Optionee in good faith believed that as a result of such Acceleration Event he or she was unable effectively to discharge his or her present duties or the duties of the position the Optionee occupied just prior to the occurrence of such Acceleration Event, the Option shall in no event expire before the earlier of the date that is 7 months after the Acceleration Event or November 7, 2021, . | |||
Retirement . For purposes of this Agreement, the term Retirement shall mean the termination of the Optionees employment if, at the time of such termination, the Optionee is eligible to commence receipt of retirement benefits under a traditional formula defined benefit pension plan maintained by the Company or an Affiliate (or would be eligible to receive such benefits if he or she were a participant in such a traditional formula defined benefit pension plan) or if no such |
plan is maintained, the first day of the month which coincides with or follows the Optionees 65th birthday. | |||
Disability . For purposes of this Agreement, the term Disability shall mean the complete and permanent inability of the Optionee to perform all of his or her duties under the terms of his or her employment, as determined by the Committee upon the basis of such evidence, including independent medical reports and data, as the Committee deems appropriate or necessary. | |||
Prorated Vesting Upon Retirement . The prorated portion of an Option that vests upon termination of the Optionees employment due to the Optionees Retirement shall be determined by multiplying the total number of unvested Shares subject to the Option at the time of the termination of the Optionees employment by a fraction, the numerator of which is the number of full months the Optionee has been continually employed since the Grant Date and the denominator of which is 36. For this purpose, full months of employment shall be based on monthly anniversaries of the Grant Date, not calendar months. | |||
(g) | Compliance with Laws and Regulations . The Option shall not be exercised at any time when its exercise or the delivery of Shares hereunder would be in violation of any law, rule, or regulation that the Company may find to be valid and applicable. | ||
(h) | Optionee Bound by Plan and Rules . The Optionee hereby acknowledges receipt of a copy of the Plan and this Agreement and agrees to be bound by the terms and provisions thereof as amended from time to time. The Optionee agrees to be bound by any rules and regulations for administering the Plan as may be adopted by the Committee during the life of the Option. Terms used herein and not otherwise defined shall be as defined in the Plan. | ||
(i) | Governing Law . This Agreement is issued, and the Option evidenced hereby is granted, in White Plains, New York and shall be governed and construed in accordance with the laws of the State of New York, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. |
Agreed to:
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XYLEM INC. | |
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(Online acceptance constitutes agreement)
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Dated:
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Dated: November 7, 2011 | |
Enclosures
|
1. | Grant of Restricted Stock Units . In accordance with, and subject to, the terms and conditions of the Plan and this Agreement, the Company hereby confirms the grant on November 7, 2011 (the Grant Date) to the Grantee of #,### Restricted Stock Units. The Restricted Stock Units are notional units of measurement denominated in Shares of common stock ( i.e ., one Restricted Stock Unit is equivalent in value to one share of common stock). |
The Restricted Stock Units represent an unfunded, unsecured right to receive [cash payments equal to the Fair Market Value of such] Shares (and dividend equivalent payments pursuant Section 2(b) hereof) in the future if the conditions set forth in the Plan and this Agreement are satisfied. |
2. | Terms and Conditions . It is understood and agreed that the Restricted Stock Units are subject to the following terms and conditions: |
(a) | Restrictions . Except as otherwise provided in the Plan and this Agreement, neither this Award nor any Restricted Stock Units subject to this Award may be sold, assigned, pledged, exchanged, transferred, hypothecated or encumbered, other than to the Company as a result of forfeiture of the Restricted Stock Units. | ||
(b) | Voting and Dividend Equivalent Rights. The Grantee shall not have any privileges of a stockholder of the Company with respect to the Restricted Stock Units or any Shares that may be delivered hereunder, including without limitation any right to vote such Shares or to receive dividends, unless and until such Shares are delivered upon vesting of the Restricted Stock Units. Dividend equivalents shall be earned with respect to each Restricted Stock Unit that vests. The amount of dividend equivalents earned with respect to each such Restricted Stock Unit that vests shall be equal to the total dividends declared on a Share where the record date of the dividend is between the Grant Date of this |
Award and the date [a cash payment equal to the Fair Market Value of] a Share is [paid/issued] upon vesting of the Restricted Stock Unit. Any dividend equivalents earned shall be paid in cash to the Grantee when the Shares subject to the vested Restricted Stock Units are issued. No dividend equivalents shall be earned or paid with respect to any Restricted Stock Units that do not vest. Dividend equivalents shall not accrue interest. | |||
(c) | Vesting of Restricted Stock Units and Payment . Subject to earlier vesting pursuant to subsections 2(d) and 2(e) below, the Restricted Stock Units shall vest (meaning the Period of Restriction shall lapse and the Restricted Stock Units shall become free of the forfeiture provisions in this Agreement) on December 31, 2012, provided the Grantee has been continuously employed by the Company or an Affiliate on a full-time basis from the Grant Date through the date the Restricted Stock Units vest. Except as provided in subsections 2(i)(i) and 2(i)(ii) below, upon vesting of the Restricted Stock Units (including vesting pursuant to subsections 2(d) or 2(e) below), the Company will deliver to the Grantee (i) [a cash amount equal to the Fair Market Value of such Shares/one Share for each vested Restricted Stock Unit], with any fractional Shares resulting from proration pursuant to subsection 2(e)(ii) to be rounded to [a cash amount equal to the Fair Market Value of] the nearest whole Share (with 0.5 to be rounded up) and (ii) an amount in cash attributable to any dividend equivalents earned in accordance with subsection 2(b) above, less any Shares withheld in accordance with subsection 2(f) below. For the avoidance of doubt, continuous employment of a Grantee by the Company or an Affiliate for purposes of vesting in the Restricted Stock Units granted hereunder shall include continuous employment with the Company for so long as the Grantee continues working at such entity. | ||
(d) | Effect of Acceleration Event . The Restricted Stock Units shall vest in full upon an Acceleration Event. | ||
(e) | Effect of Termination of Employment . If the Grantees employment with the Company and its Affiliates is terminated for any reason and such termination constitutes a separation from service within the meaning of Section 409A of the Code and any related regulations or other effective guidance promulgated thereunder (Section 409A), any Restricted Stock Units that are not vested at the time of such separation from service shall be immediately forfeited except as follows: |
(i) | Separation from Service due to Death or Disability . If the Grantees separation from service is due to death or Disability (as defined below), the Restricted Stock Units shall immediately become 100% vested as of such separation from service. For purposes of this Agreement, the term Disability shall mean the complete and permanent inability of the Grantee to perform all of his or her duties under the terms of his or her employment, as determined by the Committee upon the basis of such evidence, including independent medical reports and data, as the Committee deems appropriate or necessary. | ||
(ii) | Separation from Service due to Retirement or Separation from Service by the Company for Other than Cause . If the Grantees separation from service is due to Retirement (as defined below) or an involuntary |
2
separation from service by the Company (or an Affiliate, as the case may be) for other than cause (as determined by the Committee), a prorated portion of the Restricted Stock Units shall immediately vest as of such separation from service. For these purposes, |
A. | the prorated portion of the Restricted Stock Units shall be determined by multiplying the total number of Restricted Stock Units subject to this Award by a fraction, the numerator of which is the number of full months during which the Grantee has been continually employed since the Grant Date, together with any period during which the Grantee is entitled to receive severance in the form of salary continuation (not to exceed 14 in the aggregate), and the denominator of which is 14 (for avoidance of doubt, the period during which the Grantee may receive severance in the form of salary continuation or otherwise shall not affect the determination of the date of the Grantees separation from service or the date of delivery of any Shares or dividend equivalent payments); and | ||
B. | full months of employment shall be based on monthly anniversaries of the Grant Date, not calendar months. |
For purposes of this Agreement, the term Retirement shall mean the Grantees separation from service if, at the time of such separation from service, the Grantee is eligible to commence receipt of retirement benefits under a traditional formula defined benefit pension plan maintained by the Company or an Affiliate (or would be eligible to receive such benefits if he or she were a participant in such traditional formula defined benefit pension plan) or if no such plan is maintained, the first day of the month which coincides with or follows the Grantees 65th birthday. |
(f) | Tax Withholding . In accordance with Article 15 of the Plan, the Company may make such provisions and take such actions as it may deem necessary for the withholding of all applicable taxes attributable to the Restricted Stock Units and any related dividend equivalents. Unless the Committee determines otherwise, the minimum statutory tax withholding required to be withheld upon delivery of the [cash amount equal to the Fair Market Value of such] Shares and payment of dividend equivalents shall be satisfied by withholding a [cash amount equal to the Fair Market Value of a] number of Shares having an aggregate Fair Market Value equal to the minimum statutory tax required to be withheld, [with any fractional Shares to be rounded up to a cash amount equal to the Fair Market Value of the nearest whole Share (with 0.5 to be rounded up)/if such withholding would result in a fractional Share being withheld, the number of Shares so withheld shall be rounded up to the nearest whole Share. Notwithstanding the foregoing, the Grantee may elect to satisfy such tax withholding requirements by timely remittance of such amount by cash or check or such other method that is acceptable to the Company, rather than by withholding of Shares, provided such election is made in accordance with such conditions and restrictions as the Company may establish]. If FICA taxes are required to be withheld while the Award is outstanding, such withholding shall be made in a manner determined by the Company. | ||
(g) | Grantee Bound by Plan and Rules . The Grantee hereby acknowledges receipt of a copy of the Plan and this Agreement and agrees to be bound by the terms and provisions thereof. The Grantee agrees to be bound by any rules and |
3
regulations for administering the Plan as may be adopted by the Committee prior to the date the Restricted Stock Units vest. Terms used herein and not otherwise defined shall be as defined in the Plan. | |||
(h) | Governing Law . This Agreement is issued, and the Restricted Stock Units evidenced hereby are granted, in White Plains, New York, and shall be governed and construed in accordance with the laws of the State of New York, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. | ||
(i) | Section 409A Compliance . To the extent applicable, it is intended that the Plan and this Agreement comply with the requirements of Section 409A, and the Plan and this Agreement shall be interpreted accordingly. |
(i) | If it is determined that all or a portion of the Award constitutes deferred compensation for purposes of Section 409A, and if the Grantee is a specified employee, as defined in Section 409A(a)(2)(B)(i) of the Code, at the time of the Grantees separation from service, then, to the extent required under Section 409A, any Shares that would otherwise be distributed [or cash payments in lieu of such Shares] (along with the cash value of all dividend equivalents that would be payable) upon the Grantees separation from service, shall instead be delivered (and, in the case of the dividend equivalents, paid) on the earlier of (x) the first business day of the seventh month following the date of the Grantees separation from service or (y) the Grantees death. | ||
(ii) | If it is determined that all or a portion of the Award constitutes deferred compensation for purposes of Section 409A, upon an Acceleration Event that does not constitute a change in the ownership or a change in the effective control of the Company or a change in the ownership of a substantial portion of a corporations assets (as those terms are used in Section 409A), the Restricted Stock Units shall vest at the time of the Acceleration Event, but distribution [or payments in respect] of any Restricted Stock Units (or related dividend equivalents) that constitute deferred compensation for purposes of Section 409A shall not be accelerated ( i.e ., distribution shall occur when it would have occurred absent the Acceleration Event). |
4
1. | Grant of Restricted Stock Units . In accordance with, and subject to, the terms and conditions of the Plan and this Agreement, the Company hereby confirms the grant on November 7, 2011 (the Grant Date) to the Grantee of #,### Restricted Stock Units. The Restricted Stock Units are notional units of measurement denominated in Shares of common stock ( i.e ., one Restricted Stock Unit is equivalent in value to one share of common stock). |
The Restricted Stock Units represent an unfunded, unsecured right to receive [cash payments equal to the Fair Market Value of such] Shares (and dividend equivalent payments pursuant Section 2(b) hereof) in the future if the conditions set forth in the Plan and this Agreement are satisfied. |
2. | Terms and Conditions . It is understood and agreed that the Restricted Stock Units are subject to the following terms and conditions: |
(a) | Restrictions . Except as otherwise provided in the Plan and this Agreement, neither this Award nor any Restricted Stock Units subject to this Award may be sold, assigned, pledged, exchanged, transferred, hypothecated or encumbered, other than to the Company as a result of forfeiture of the Restricted Stock Units. | ||
(b) | Voting and Dividend Equivalent Rights. The Grantee shall not have any privileges of a stockholder of the Company with respect to the Restricted Stock Units or any Shares that may be delivered hereunder, including without limitation any right to vote such Shares or to receive dividends, unless and until such Shares are delivered upon vesting of the Restricted Stock Units. Dividend equivalents shall be earned with respect to each Restricted Stock Unit that vests. The amount of dividend equivalents earned with respect to each such Restricted Stock Unit that vests shall be equal to the total dividends declared on a Share where the record date of the dividend is between the Grant Date of this |
Award and the date [a cash payment equal to the Fair Market Value of] a Share is [paid/issued] upon vesting of the Restricted Stock Unit. Any dividend equivalents earned shall be paid in cash to the Grantee when the Shares subject to the vested Restricted Stock Units are issued. No dividend equivalents shall be earned or paid with respect to any Restricted Stock Units that do not vest. Dividend equivalents shall not accrue interest. | |||
(c) | Vesting of Restricted Stock Units and Payment . Subject to earlier vesting pursuant to subsections 2(d) and 2(e) below, the Restricted Stock Units shall vest (meaning the Period of Restriction shall lapse and the Restricted Stock Units shall become free of the forfeiture provisions in this Agreement) on December 31, 2013, provided the Grantee has been continuously employed by the Company or an Affiliate on a full-time basis from the Grant Date through the date the Restricted Stock Units vest. Except as provided in subsections 2(i)(i) and 2(i)(ii) below, upon vesting of the Restricted Stock Units (including vesting pursuant to subsections 2(d) or 2(e) below), the Company will deliver to the Grantee (i) [a cash amount equal to the Fair Market Value of such Shares/one Share for each vested Restricted Stock Unit], with any fractional Shares resulting from proration pursuant to subsection 2(e)(ii) to be rounded to [a cash amount equal to the Fair Market Value of] the nearest whole Share (with 0.5 to be rounded up) and (ii) an amount in cash attributable to any dividend equivalents earned in accordance with subsection 2(b) above, less any Shares withheld in accordance with subsection 2(f) below. For the avoidance of doubt, continuous employment of a Grantee by the Company or an Affiliate for purposes of vesting in the Restricted Stock Units granted hereunder shall include continuous employment with the Company for so long as the Grantee continues working at such entity. | ||
(d) | Effect of Acceleration Event . The Restricted Stock Units shall vest in full upon an Acceleration Event. | ||
(e) | Effect of Termination of Employment . If the Grantees employment with the Company and its Affiliates is terminated for any reason and such termination constitutes a separation from service within the meaning of Section 409A of the Code and any related regulations or other effective guidance promulgated thereunder (Section 409A), any Restricted Stock Units that are not vested at the time of such separation from service shall be immediately forfeited except as follows: |
(i) | Separation from Service due to Death or Disability . If the Grantees separation from service is due to death or Disability (as defined below), the Restricted Stock Units shall immediately become 100% vested as of such separation from service. For purposes of this Agreement, the term Disability shall mean the complete and permanent inability of the Grantee to perform all of his or her duties under the terms of his or her employment, as determined by the Committee upon the basis of such evidence, including independent medical reports and data, as the Committee deems appropriate or necessary. | ||
(ii) | Separation from Service due to Retirement or Separation from Service by the Company for Other than Cause . If the Grantees separation from service is due to Retirement (as defined below) or an involuntary |
2
separation from service by the Company (or an Affiliate, as the case may be) for other than cause (as determined by the Committee), a prorated portion of the Restricted Stock Units shall immediately vest as of such separation from service. For these purposes, |
A. | the prorated portion of the Restricted Stock Units shall be determined by multiplying the total number of Restricted Stock Units subject to this Award by a fraction, the numerator of which is the number of full months during which the Grantee has been continually employed since the Grant Date, together with any period during which the Grantee is entitled to receive severance in the form of salary continuation (not to exceed 26 in the aggregate), and the denominator of which is 26 (for avoidance of doubt, the period during which the Grantee may receive severance in the form of salary continuation or otherwise shall not affect the determination of the date of the Grantees separation from service or the date of delivery of any Shares or dividend equivalent payments); and | ||
B. | full months of employment shall be based on monthly anniversaries of the Grant Date, not calendar months. |
For purposes of this Agreement, the term Retirement shall mean the Grantees separation from service if, at the time of such separation from service, the Grantee is eligible to commence receipt of retirement benefits under a traditional formula defined benefit pension plan maintained by the Company or an Affiliate (or would be eligible to receive such benefits if he or she were a participant in such traditional formula defined benefit pension plan) or if no such plan is maintained, the first day of the month which coincides with or follows the Grantees 65th birthday. |
(f) | Tax Withholding . In accordance with Article 15 of the Plan, the Company may make such provisions and take such actions as it may deem necessary for the withholding of all applicable taxes attributable to the Restricted Stock Units and any related dividend equivalents. Unless the Committee determines otherwise, the minimum statutory tax withholding required to be withheld upon delivery of the [cash amount equal to the Fair Market Value of such] Shares and payment of dividend equivalents shall be satisfied by withholding a [cash amount equal to the Fair Market Value of a] number of Shares having an aggregate Fair Market Value equal to the minimum statutory tax required to be withheld, [with any fractional Shares to be rounded up to a cash amount equal to the Fair Market Value of the nearest whole Share (with 0.5 to be rounded up)/ if such withholding would result in a fractional Share being withheld, the number of Shares so withheld shall be rounded up to the nearest whole Share. Notwithstanding the foregoing, the Grantee may elect to satisfy such tax withholding requirements by timely remittance of such amount by cash or check or such other method that is acceptable to the Company, rather than by withholding of Shares, provided such election is made in accordance with such conditions and restrictions as the Company may establish]. If FICA taxes are required to be withheld while the Award is outstanding, such withholding shall be made in a manner determined by the Company. | ||
(g) | Grantee Bound by Plan and Rules . The Grantee hereby acknowledges receipt of a copy of the Plan and this Agreement and agrees to be bound by the |
3
terms and provisions thereof. The Grantee agrees to be bound by any rules and regulations for administering the Plan as may be adopted by the Committee prior to the date the Restricted Stock Units vest. Terms used herein and not otherwise defined shall be as defined in the Plan. | |||
(h) | Governing Law . This Agreement is issued, and the Restricted Stock Units evidenced hereby are granted, in White Plains, New York, and shall be governed and construed in accordance with the laws of the State of New York, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. | ||
(i) | Section 409A Compliance . To the extent applicable, it is intended that the Plan and this Agreement comply with the requirements of Section 409A, and the Plan and this Agreement shall be interpreted accordingly. |
(i) | If it is determined that all or a portion of the Award constitutes deferred compensation for purposes of Section 409A, and if the Grantee is a specified employee, as defined in Section 409A(a)(2)(B)(i) of the Code, at the time of the Grantees separation from service, then, to the extent required under Section 409A, any Shares that would otherwise be distributed [or cash payments in lieu of such Shares] (along with the cash value of all dividend equivalents that would be payable) upon the Grantees separation from service, shall instead be delivered (and, in the case of the dividend equivalents, paid) on the earlier of (x) the first business day of the seventh month following the date of the Grantees separation from service or (y) the Grantees death. | ||
(ii) | If it is determined that all or a portion of the Award constitutes deferred compensation for purposes of Section 409A, upon an Acceleration Event that does not constitute a change in the ownership or a change in the effective control of the Company or a change in the ownership of a substantial portion of a corporations assets (as those terms are used in Section 409A), the Restricted Stock Units shall vest at the time of the Acceleration Event, but distribution [or payments in respect] of any Restricted Stock Units (or related dividend equivalents) that constitute deferred compensation for purposes of Section 409A shall not be accelerated ( i.e ., distribution shall occur when it would have occurred absent the Acceleration Event). |
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1. | Grant of Restricted Stock Units . In accordance with, and subject to, the terms and conditions of the Plan and this Agreement, the Company hereby confirms the grant on November 7, 2011 (the Grant Date) to the Grantee of #,### Restricted Stock Units. The Restricted Stock Units are notional units of measurement denominated in Shares of common stock ( i.e ., one Restricted Stock Unit is equivalent in value to one share of common stock). |
The Restricted Stock Units represent an unfunded, unsecured right to receive [cash payments equal to the Fair Market Value of such] Shares (and dividend equivalent payments pursuant Section 2(b) hereof) in the future if the conditions set forth in the Plan and this Agreement are satisfied. |
2. | Terms and Conditions . It is understood and agreed that the Restricted Stock Units are subject to the following terms and conditions: |
(a) | Restrictions . Except as otherwise provided in the Plan and this Agreement, neither this Award nor any Restricted Stock Units subject to this Award may be sold, assigned, pledged, exchanged, transferred, hypothecated or encumbered, other than to the Company as a result of forfeiture of the Restricted Stock Units. | ||
(b) | Voting and Dividend Equivalent Rights. The Grantee shall not have any privileges of a stockholder of the Company with respect to the Restricted Stock Units or any Shares that may be delivered hereunder, including without limitation any right to vote such Shares or to receive dividends, unless and until such Shares are delivered upon vesting of the Restricted Stock Units. Dividend equivalents shall be earned with respect to each Restricted Stock Unit that vests. The amount of dividend equivalents earned with respect to each such Restricted Stock Unit that vests shall be equal to the total dividends declared on a Share where the record date of the dividend is between the Grant Date of this Award and the date [a cash payment equal to the Fair Market Value of] a Share is [paid/issued] upon vesting of the Restricted Stock Unit. Any dividend equivalents earned shall be paid in cash to the Grantee when the Shares |
subject to the vested Restricted Stock Units are issued. No dividend equivalents shall be earned or paid with respect to any Restricted Stock Units that do not vest. Dividend equivalents shall not accrue interest. | |||
(c) | Vesting of Restricted Stock Units and Payment . Subject to earlier vesting pursuant to subsections 2(d) and 2(e) below, the Restricted Stock Units shall vest (meaning the Period of Restriction shall lapse and the Restricted Stock Units shall become free of the forfeiture provisions in this Agreement) on November 7, 2014, provided the Grantee has been continuously employed by the Company or an Affiliate on a full-time basis from the Grant Date through the date the Restricted Stock Units vest. Except as provided in subsections 2(i)(i) and 2(i)(ii) below, upon vesting of the Restricted Stock Units (including vesting pursuant to subsections 2(d) or 2(e) below), the Company will deliver to the Grantee (i) [a cash amount equal to the Fair Market Value of such Shares/one Share for each vested Restricted Stock Unit], with any fractional Shares resulting from proration pursuant to subsection 2(e)(ii) to be rounded to [a cash amount equal to the Fair Market Value of] the nearest whole Share (with 0.5 to be rounded up) and (ii) an amount in cash attributable to any dividend equivalents earned in accordance with subsection 2(b) above, less any Shares withheld in accordance with subsection 2(f) below. For the avoidance of doubt, continuous employment of a Grantee by the Company or an Affiliate for purposes of vesting in the Restricted Stock Units granted hereunder shall include continuous employment with the Company for so long as the Grantee continues working at such entity. | ||
(d) | Effect of Acceleration Event . The Restricted Stock Units shall vest in full upon an Acceleration Event. | ||
(e) | Effect of Termination of Employment . If the Grantees employment with the Company and its Affiliates is terminated for any reason and such termination constitutes a separation from service within the meaning of Section 409A of the Code and any related regulations or other effective guidance promulgated thereunder (Section 409A), any Restricted Stock Units that are not vested at the time of such separation from service shall be immediately forfeited except as follows: |
(i) | Separation from Service due to Death or Disability . If the Grantees separation from service is due to death or Disability (as defined below), the Restricted Stock Units shall immediately become 100% vested as of such separation from service. For purposes of this Agreement, the term Disability shall mean the complete and permanent inability of the Grantee to perform all of his or her duties under the terms of his or her employment, as determined by the Committee upon the basis of such evidence, including independent medical reports and data, as the Committee deems appropriate or necessary. | ||
(ii) | Separation from Service due to Retirement or Separation from Service by the Company for Other than Cause . If the Grantees separation from service is due to Retirement (as defined below) or an involuntary separation from service by the Company (or an Affiliate, as the case may be) for other than cause (as determined by the Committee), a prorated |
2
portion of the Restricted Stock Units shall immediately vest as of such separation from service. For these purposes, |
A. | the prorated portion of the Restricted Stock Units shall be determined by multiplying the total number of Restricted Stock Units subject to this Award by a fraction, the numerator of which is the number of full months during which the Grantee has been continually employed since the Grant Date, together with any period during which the Grantee is entitled to receive severance in the form of salary continuation (not to exceed 36 in the aggregate), and the denominator of which is 36 (for avoidance of doubt, the period during which the Grantee may receive severance in the form of salary continuation or otherwise shall not affect the determination of the date of the Grantees separation from service or the date of delivery of any Shares or dividend equivalent payments); and | ||
B. | full months of employment shall be based on monthly anniversaries of the Grant Date, not calendar months. |
For purposes of this Agreement, the term Retirement shall mean the Grantees separation from service if, at the time of such separation from service, the Grantee is eligible to commence receipt of retirement benefits under a traditional formula defined benefit pension plan maintained by the Company or an Affiliate (or would be eligible to receive such benefits if he or she were a participant in such traditional formula defined benefit pension plan) or if no such plan is maintained, the first day of the month which coincides with or follows the Grantees 65th birthday. |
(f) | Tax Withholding . In accordance with Article 15 of the Plan, the Company may make such provisions and take such actions as it may deem necessary for the withholding of all applicable taxes attributable to the Restricted Stock Units and any related dividend equivalents. Unless the Committee determines otherwise, the minimum statutory tax withholding required to be withheld upon delivery of the [cash amount equal to the Fair Market Value of such] Shares and payment of dividend equivalents shall be satisfied by withholding a [cash amount equal to the Fair Market Value of a] number of Shares having an aggregate Fair Market Value equal to the minimum statutory tax required to be withheld, [with any fractional Shares to be rounded up to a cash amount equal to the Fair Market Value of the nearest whole Share (with 0.5 to be rounded up)/if such withholding would result in a fractional Share being withheld, the number of Shares so withheld shall be rounded up to the nearest whole Share. Notwithstanding the foregoing, the Grantee may elect to satisfy such tax withholding requirements by timely remittance of such amount by cash or check or such other method that is acceptable to the Company, rather than by withholding of Shares, provided such election is made in accordance with such conditions and restrictions as the Company may establish]. If FICA taxes are required to be withheld while the Award is outstanding, such withholding shall be made in a manner determined by the Company. | ||
(g) | Grantee Bound by Plan and Rules . The Grantee hereby acknowledges receipt of a copy of the Plan and this Agreement and agrees to be bound by the terms and provisions thereof. The Grantee agrees to be bound by any rules and regulations for administering the Plan as may be adopted by the Committee |
3
prior to the date the Restricted Stock Units vest. Terms used herein and not otherwise defined shall be as defined in the Plan. | |||
(h) | Governing Law . This Agreement is issued, and the Restricted Stock Units evidenced hereby are granted, in White Plains, New York, and shall be governed and construed in accordance with the laws of the State of New York, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. | ||
(i) | Section 409A Compliance . To the extent applicable, it is intended that the Plan and this Agreement comply with the requirements of Section 409A, and the Plan and this Agreement shall be interpreted accordingly. |
(i) | If it is determined that all or a portion of the Award constitutes deferred compensation for purposes of Section 409A, and if the Grantee is a specified employee, as defined in Section 409A(a)(2)(B)(i) of the Code, at the time of the Grantees separation from service, then, to the extent required under Section 409A, any Shares that would otherwise be distributed [or cash payments in lieu of such Shares] (along with the cash value of all dividend equivalents that would be payable) upon the Grantees separation from service, shall instead be delivered (and, in the case of the dividend equivalents, paid) on the earlier of (x) the first business day of the seventh month following the date of the Grantees separation from service or (y) the Grantees death. | ||
(ii) | If it is determined that all or a portion of the Award constitutes deferred compensation for purposes of Section 409A, upon an Acceleration Event that does not constitute a change in the ownership or a change in the effective control of the Company or a change in the ownership of a substantial portion of a corporations assets (as those terms are used in Section 409A), the Restricted Stock Units shall vest at the time of the Acceleration Event, but distribution [or payments in respect] of any Restricted Stock Units (or related dividend equivalents) that constitute deferred compensation for purposes of Section 409A shall not be accelerated ( i.e ., distribution shall occur when it would have occurred absent the Acceleration Event). |
4
1. | Grant of Restricted Stock Units . In accordance with, and subject to, the terms and conditions of the Plan and this Agreement, the Company hereby confirms the grant on November 7, 2011 (the Grant Date) to the Grantee of #,### Restricted Stock Units. The Restricted Stock Units are notional units of measurement denominated in Shares of common stock ( i.e ., one Restricted Stock Unit is equivalent in value to one share of common stock). |
The Restricted Stock Units represent an unfunded, unsecured right to receive [cash payments equal to the Fair Market Value of such] Shares (and dividend equivalent payments pursuant Section 2(b) hereof) in the future if the conditions set forth in the Plan and this Agreement are satisfied. |
2. | Terms and Conditions . It is understood and agreed that the Restricted Stock Units are subject to the following terms and conditions: |
(a) | Restrictions . Except as otherwise provided in the Plan and this Agreement, neither this Award nor any Restricted Stock Units subject to this Award may be sold, assigned, pledged, exchanged, transferred, hypothecated or encumbered, other than to the Company as a result of forfeiture of the Restricted Stock Units. | ||
(b) | Voting and Dividend Equivalent Rights. The Grantee shall not have any privileges of a stockholder of the Company with respect to the Restricted Stock Units or any Shares that may be delivered hereunder, including without limitation any right to vote such Shares or to receive dividends, unless and until such Shares are delivered upon vesting of the Restricted Stock Units. Dividend equivalents shall be earned with respect to each Restricted Stock Unit that vests. The amount of dividend equivalents earned with respect to each such Restricted Stock Unit that vests shall be equal to the total dividends declared on a Share where the record date of the dividend is between the Grant Date of this Award and the date [a cash payment equal to the Fair Market Value of] a Share |
is [paid/issued] upon vesting of the Restricted Stock Unit. Any dividend equivalents earned shall be paid in cash to the Grantee when the Shares subject to the vested Restricted Stock Units are issued. No dividend equivalents shall be earned or paid with respect to any Restricted Stock Units that do not vest. Dividend equivalents shall not accrue interest. | |||
(c) | Vesting of Restricted Stock Units and Payment . Subject to earlier vesting pursuant to subsections 2(d) and 2(e) below, the Restricted Stock Units shall vest (meaning the Period of Restriction shall lapse and the Restricted Stock Units shall become free of the forfeiture provisions in this Agreement) on November 7, 2014, provided the Grantee has been continuously employed by the Company or an Affiliate on a full-time basis from the Grant Date through the date the Restricted Stock Units vest. Except as provided in subsections 2(i)(i) and 2(i)(ii) below, upon vesting of the Restricted Stock Units (including vesting pursuant to subsections 2(d) or 2(e) below), the Company will deliver to the Grantee (i) [a cash amount equal to the Fair Market Value of such Shares/one Share for each vested Restricted Stock Unit], with any fractional Shares resulting from proration pursuant to subsection 2(e)(ii) to be rounded to [a cash amount equal to the Fair Market Value of] the nearest whole Share (with 0.5 to be rounded up) and (ii) an amount in cash attributable to any dividend equivalents earned in accordance with subsection 2(b) above, less any Shares withheld in accordance with subsection 2(f) below. For the avoidance of doubt, continuous employment of a Grantee by the Company or an Affiliate for purposes of vesting in the Restricted Stock Units granted hereunder shall include continuous employment with the Company for so long as the Grantee continues working at such entity. | ||
(d) | Effect of Acceleration Event . The Restricted Stock Units shall vest in full upon an Acceleration Event. | ||
(e) | Effect of Termination of Employment . If the Grantees employment with the Company and its Affiliates is terminated for any reason and such termination constitutes a separation from service within the meaning of Section 409A of the Code and any related regulations or other effective guidance promulgated thereunder (Section 409A), any Restricted Stock Units that are not vested at the time of such separation from service shall be immediately forfeited except as follows: |
(i) | Separation from Service due to Death or Disability . If the Grantees separation from service is due to death or Disability (as defined below), the Restricted Stock Units shall immediately become 100% vested as of such separation from service. For purposes of this Agreement, the term Disability shall mean the complete and permanent inability of the Grantee to perform all of his or her duties under the terms of his or her employment, as determined by the Committee upon the basis of such evidence, including independent medical reports and data, as the Committee deems appropriate or necessary. | ||
(ii) | Separation from Service due to Retirement or Separation from Service by the Company for Other than Cause . If the Grantees separation from service is due to Retirement (as defined below) or an involuntary separation from service by the Company (or an Affiliate, as the case may |
2
be) for other than cause (as determined by the Committee), a prorated portion of the Restricted Stock Units shall immediately vest as of such separation from service. For these purposes, |
A. | the prorated portion of the Restricted Stock Units shall be determined by multiplying the total number of Restricted Stock Units subject to this Award by a fraction, the numerator of which is the number of full months during which the Grantee has been continually employed since the Grant Date, together with any period during which the Grantee is entitled to receive severance in the form of salary continuation (not to exceed 36 in the aggregate), and the denominator of which is 36 (for avoidance of doubt, the period during which the Grantee may receive severance in the form of salary continuation or otherwise shall not affect the determination of the date of the Grantees separation from service or the date of delivery of any Shares or dividend equivalent payments); and | ||
B. | full months of employment shall be based on monthly anniversaries of the Grant Date, not calendar months. |
For purposes of this Agreement, the term Retirement shall mean the Grantees separation from service if, at the time of such separation from service, the Grantee is eligible to commence receipt of retirement benefits under a traditional formula defined benefit pension plan maintained by the Company or an Affiliate (or would be eligible to receive such benefits if he or she were a participant in such traditional formula defined benefit pension plan) or if no such plan is maintained, the first day of the month which coincides with or follows the Grantees 65th birthday. |
(f) | Tax Withholding . In accordance with Article 15 of the Plan, the Company may make such provisions and take such actions as it may deem necessary for the withholding of all applicable taxes attributable to the Restricted Stock Units and any related dividend equivalents. Unless the Committee determines otherwise, the minimum statutory tax withholding required to be withheld upon delivery of the [cash amount equal to the Fair Market Value of such] Shares and payment of dividend equivalents shall be satisfied by withholding a [cash amount equal to the Fair Market Value of a] number of Shares having an aggregate Fair Market Value equal to the minimum statutory tax required to be withheld, [with any fractional Shares to be rounded up to a cash amount equal to the Fair Market Value of the nearest whole Share (with 0.5 to be rounded up)/if such withholding would result in a fractional Share being withheld, the number of Shares so withheld shall be rounded up to the nearest whole Share. Notwithstanding the foregoing, the Grantee may elect to satisfy such tax withholding requirements by timely remittance of such amount by cash or check or such other method that is acceptable to the Company, rather than by withholding of Shares, provided such election is made in accordance with such conditions and restrictions as the Company may establish]. If FICA taxes are required to be withheld while the Award is outstanding, such withholding shall be made in a manner determined by the Company. | ||
(g) | Grantee Bound by Plan and Rules . The Grantee hereby acknowledges receipt of a copy of the Plan and this Agreement and agrees to be bound by the terms and provisions thereof. The Grantee agrees to be bound by any rules and regulations for administering the Plan as may be adopted by the Committee |
3
prior to the date the Restricted Stock Units vest. Terms used herein and not otherwise defined shall be as defined in the Plan. | |||
(h) | Governing Law . This Agreement is issued, and the Restricted Stock Units evidenced hereby are granted, in White Plains, New York, and shall be governed and construed in accordance with the laws of the State of New York, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. | ||
(i) | Section 409A Compliance . To the extent applicable, it is intended that the Plan and this Agreement comply with the requirements of Section 409A, and the Plan and this Agreement shall be interpreted accordingly. |
(i) | If it is determined that all or a portion of the Award constitutes deferred compensation for purposes of Section 409A, and if the Grantee is a specified employee, as defined in Section 409A(a)(2)(B)(i) of the Code, at the time of the Grantees separation from service, then, to the extent required under Section 409A, any Shares that would otherwise be distributed [or cash payments in lieu of such Shares] (along with the cash value of all dividend equivalents that would be payable) upon the Grantees separation from service, shall instead be delivered (and, in the case of the dividend equivalents, paid) on the earlier of (x) the first business day of the seventh month following the date of the Grantees separation from service or (y) the Grantees death. | ||
(ii) | If it is determined that all or a portion of the Award constitutes deferred compensation for purposes of Section 409A, upon an Acceleration Event that does not constitute a change in the ownership or a change in the effective control of the Company or a change in the ownership of a substantial portion of a corporations assets (as those terms are used in Section 409A), the Restricted Stock Units shall vest at the time of the Acceleration Event, but distribution [or payments in respect] of any Restricted Stock Units (or related dividend equivalents) that constitute deferred compensation for purposes of Section 409A shall not be accelerated ( i.e ., distribution shall occur when it would have occurred absent the Acceleration Event). |
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DIRECTOR | [Non-Employee Director Name] | |||
RESTRICTED STOCK UNITS GRANTED | [ #,#### ] | |||
DATE OF GRANT | November 7, 2011 | |||
VESTING SCHEDULE | Except as provided in Section 3 of this Agreement, the Restricted Stock Units will vest on the following date(s), subject to the Directors continued service as a director of the Company: | |||
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|
Restricted | |||
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Stock Units | |||
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Vesting Date(s) | Vesting | ||
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||||
|
the Business Day immediately prior to the Xylem Inc. 2012 Annual Meeting. | 100% of Award |
1. | Grant of Award . The Company hereby grants to the Director the Restricted Stock Units, subject to the terms, definitions and provisions of the Plan and this Agreement. All terms, provisions, and conditions applicable to the Restricted Stock Units set forth in the Plan and not set forth herein are incorporated by reference. To the extent any provision hereof is inconsistent with a provision of the Plan the provisions of the Plan will govern. All capitalized terms that are used in this Agreement and not otherwise defined herein shall have the meanings ascribed to them in the Plan. | ||
2. | Vesting and Settlement of Award . |
a. | Right to Award . This Award shall vest in accordance with the vesting schedule set forth above (the Vesting Schedule) and with the applicable provisions of the Plan and this Agreement. |
1
b. | Settlement of Award . Except as otherwise provided in a deferral agreement duly executed by the Director on a form prescribed by the Company for such elections and timely filed with the Company, the vested portion of this Award shall be settled (and any related dividend equivalents shall be paid) on or as soon as practicable following the vesting date set forth in the Vesting Schedule or in Section 3 of this Agreement, as the case may be. | ||
The Company may require the Director to furnish or execute such documents as the Company shall reasonably deem necessary (i) to evidence such settlement and (ii) to comply with or satisfy the requirements of the Securities Act of 1933, as amended, the Exchange Act or any applicable laws. If the Director dies before the settlement of all or a portion of the Award, the vested but unsettled portion of the Award may be settled by delivery of Shares (and payment of related dividend equivalents) to the Participants designated beneficiary or, if no such beneficiary has been designated, the Participants estate. | |||
c. | Method of Settlement . The Company shall deliver to the Director [one Share for each vested Restricted Stock Unit in book entry form/to receive cash payments equal to the Fair Market Value of such Shares on vest date]. | ||
d. | Dividend Equivalents . If a cash dividend is declared on the Shares, the Director shall be credited with a dividend equivalent in an amount of cash equal to the number of Restricted Stock Units held by the Director as of the dividend payment date, multiplied by the amount of the cash dividend paid per Share. Any such dividend equivalents shall be paid if and when the underlying Restricted Stock Units are settled. Dividend equivalents shall not accrue interest. |
3. | Separation from Service . The Award shall become 100% vested prior to the vesting date set forth in the Vesting Schedule above upon the Directors separation from service for any of the following reasons: |
a. | the Directors death; | ||
b. | the Directors Disability (as defined below); | ||
c. | the Directors retirement from the Board at or after age 72; or | ||
d. | the Directors separation from service on account of the acceptance by the Director of a position (other than an honorary position) in the government of the United States, any State or any municipality or any subdivision thereof or any organization performing any quasi-governmental function. |
If the Directors service on the Board terminates for any reason other than one listed above prior to the vesting date set forth in the Vesting Schedule above (other than in connection with the Directors commencement of services as a director of a Spinco), the Award shall be forfeited immediately with respect to the number of Restricted Stock Units for which the Award is not yet vested. | |||
For purposes of this Agreement, the term Disability means the complete and permanent inability of the Director to perform all of his or her duties as a member of the Board, as |
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determined by the Committee upon the basis of such evidence, including independent medical reports and data, as the Committee deems appropriate or necessary. | |||
4. | Transferability of Award . | ||
The Award may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated. | |||
5. | Miscellaneous Provisions . |
a. | Rights as a Stockholder . The Director shall have no rights as a stockholder with respect to any Shares subject to this Award, except as provided in Paragraph 2(d), until the Award has vested and Shares, if any, have been issued. | ||
b. | Compliance with Federal Securities Laws and Other Applicable Laws . Notwithstanding anything to contrary in this Agreement or in the Plan, to the extent permitted by Section 409A of the Code and any treasury regulations or other applicable guidance promulgated with respect thereto, the issuance or delivery of any Shares pursuant to this Agreement may be delayed if the Company reasonably anticipates that the issuance or delivery of the Shares will violate Federal securities laws or other applicable law; provided that delivery or issuance of the Shares shall be made at the earliest date at which the Company reasonably anticipates that such delivery or issuance will not cause a violation. | ||
c. | Choice of Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. | ||
d. | Modification or Amendment . This Agreement may only be modified or amended by written agreement executed by the parties hereto; provided, however, that the adjustments permitted pursuant to Section 4.2 of the Plan may be made without such written agreement. | ||
e. | Severability . In the event any provision of this Agreement shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining provisions of this Agreement, and this Agreement shall be construed and enforced as if such illegal or invalid provision had not been included. | ||
f. | References to Plan . All references to the Plan shall be deemed references to the Plan as may be amended from time to time. | ||
g. | Headings . The captions used in this Agreement are inserted for convenience and shall not be deemed a part of this Award for construction or interpretation. | ||
h. | Interpretation . Any dispute regarding the interpretation of this Agreement shall be submitted by the Director or by the Company forthwith to the Committee, which shall review such dispute at its next regular meeting. If the Director is a |
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member of the Committee, the Director shall not participate in such review. The resolution of such dispute by the Committee shall be final and binding on all persons. | |||
i. | Section 409A of the Code . The provisions of this Agreement and any payments made herein are intended to comply with, and should be interpreted consistent with, the requirements of Section 409A of the Code, and any related regulations or other effective guidance promulgated thereunder by the U.S. Department of the Treasury or the Internal Revenue Service. | ||
j. | Signature in Counterparts . This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. |
The Director represents that s/he is familiar with the terms and provisions thereof, and hereby accepts this Agreement subject to all of the terms and provisions thereof. The Director has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement and fully understands all provisions of this Agreement. The Director hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under the Plan or this Agreement. | |||
Signed: | |||
Director | |||
(Online acceptance constitutes agreement) | |||
Dated: |
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(1) | the Corporation shall be entitled to participate therein at its own expense; | ||
(2) | except as otherwise provided below, to the extent that it may wish, the Corporation jointly with any other indemnifying party shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. After notice from the Corporation to the Indemnitee of its election so to assume the defense thereof and approval by the Indemnitee of such counsel (which approval shall not be unreasonably withheld), the Corporation will not be liable to the Indemnitee under this Agreement for any legal or other expenses subsequently incurred by the Indemnitee for separate counsel in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. The Indemnitee shall have the right to employ its counsel in such action, suit or proceeding but the fees and expenses of such counsel incurred after notice from the Corporation of its assumption of the defense thereof shall be at the expense of the Indemnitee unless (i) the employment of such counsel by the Indemnitee has been authorized by the Corporation, (ii) the Indemnitee shall have reasonably concluded (with written notice to the Corporation setting forth the basis for such conclusion) that there may be a conflict of interest between the Corporation and the Indemnitee in the conduct of the defense of such Proceeding, or (iii) the Corporation shall not in fact have employed counsel to assume the defense of such Proceeding, in each of which cases the fees and expenses of counsel shall be at the expense of the Corporation. The Corporation shall not be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the Corporation or as to which the Indemnitee shall have made the conclusion provided for in (ii) above; and | ||
(3) | the Corporation shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without the Corporations written consent. The Corporation shall not settle any Proceeding in any manner that would impose any penalty, obligation or limitation on the Indemnitee without the Indemnitees written consent. Neither the Corporation nor the Indemnitee will unreasonably withhold their consent to any proposed settlement. |
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Exelis Inc.
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By: | ||||
Name: | ||||
Title: | ||||
By | ||||
Name: | [Directors Name] | |||
1. | I have reviewed this Quarterly Report on Form 10-Q of Xylem Inc.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: |
a) | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; and | |
b) | evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | |
c) | disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions): |
a) | all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and | |
b) | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
1. | I have reviewed this Quarterly Report on Form 10-Q of Xylem Inc.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: |
a) | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; and | |
b) | evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | |
c) | disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions): |
a) | all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and | |
b) | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
(1) | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and |
(2) | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
(3) | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and |
(4) | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |