As filed with the Securities and Exchange Commission on May 31, 2019
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
THE SECURITIES ACT OF 1933
(Exact name of registrant as specified in its charter)
974 Centre Road
Wilmington, Delaware 19805
(Name, address, including zip code, and telephone number, including area code, of registrants principal executive offices)
DuPont Retirement Savings Plan
DuPont Management Deferred Compensation Plan
DuPont Stock Accumulation and Deferred Compensation Plan for Directors
(Full Title of the Plans)
Erik T. Hoover
Prior to the Separation: General Counsel Specialty Products and Assistant Secretary of DowDuPont Inc.
After the Separation: General Counsel and Secretary of DuPont de Nemours, Inc.
974 Centre Road
Wilmington, Delaware 19805
(Name, address, including zip code, and telephone number, including area code, of agents for service)
Ryan J. Dzierniejko
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Telephone: (212) 735-3000
Facsimile: (212) 735-2000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company and emerging growth company in Rule 12b-2 of the Exchange Act.
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
This registration statement on Form S-8 (this Registration Statement) is being filed for the purpose of registering 8,000,000 shares of common stock, par value $0.01 per share (Common Stock), of DowDuPont Inc. (the Registrant) issuable to eligible employees, officers and directors of the Registrant and certain other individuals pursuant to awards that may be granted on or after June 1, 2019 under the (a) DuPont Retirement Savings Plan (the RSP), (b) DuPont Management Deferred Compensation Plan (the MDCP) and (c) DuPont Stock Accumulation and Deferred Compensation Plan for Directors (the SADCP and, collectively with the RSP and MDCP, the Plans). The Plans are being implemented in connection with the spin-off of Corteva, Inc. (Corteva) from the Registrant, which will be completed on June 1, 2019 by way of a pro rata distribution of all of the then-issued and outstanding shares of common stock of Corteva to DowDuPont Inc. stockholders (the Separation), at which time the Registrant plans to change its name from DowDuPont Inc. to DuPont de Nemours, Inc.
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the employee benefit plan information required by Item 1 of Form S-8 and the statement of availability of registrant information and any other information required by Item 2 of Form S-8 will be sent or given to participants as specified by Rule 428 under the Securities Act. In accordance with Rule 428 and the requirements of Part I of Form S-8, such documents are not being filed with the Securities and Exchange Commission (the Commission) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. The Registrant will maintain a file of such documents in accordance with the provisions of Rule 428. Upon request, the Registrant will furnish to the Commission or its staff a copy of any or all of the documents included in such file.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The following documents filed with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the Exchange Act) are hereby incorporated in this Registration Statement by reference and shall be deemed to be a part hereof (except for any portions of Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 thereof and any corresponding exhibits thereto not filed with the Commission):
In addition to the foregoing, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement, and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereunder have been sold or which de-registers all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents (unless expressly incorporated into this Registration Statement, any portions of the Registrants Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 thereof and any corresponding exhibits thereto not filed with the Commission subsequent to the date hereof shall not be incorporated by reference into this Registration Statement).
Any statement contained in a document which is incorporated by reference in this Registration Statement will be deemed modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement or incorporated by reference in this Registration Statement or in any document that the Registrant, filed after the date of this Registration Statement that also is incorporated by reference in this Registration Statement modifies or supersedes the prior statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Subject to the foregoing, all information appearing in this Registration Statement is qualified in its entirety by the information appearing in the documents incorporated by reference in this Registration Statement.
The Common Stock is registered under Section 12(b) of the Exchange Act.
The validity of the issuance of the Common Stock offered hereby has been passed on by Erik T. Hoover, General Counsel Specialty Products and Assistant Secretary of the Registrant (after the Separation, General Counsel and Secretary of DuPont de Nemours, Inc.). As of the effective time of the Separation, Mr. Hoover will beneficially own 2,639 shares of Common Stock, and at the time of the Separation will have the right to acquire beneficial ownership of 30,196 shares of Common Stock within 60 days under the Plans.
Section 145 of the Delaware General Corporation Law (DGCL) empowers a Delaware corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The indemnity may include expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such persons conduct was unlawful. A Delaware corporation may indemnify directors, officers, employees and other agents of such corporation in an action by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the person to be indemnified has been adjudged to be liable to the corporation. Where a director, officer, employee or agent of the corporation is successful on the merits or otherwise in the defense of any action, suit or proceeding referred to above or in defense of any claim, issue or matter therein, the corporation must indemnify such person against the expenses (including attorneys fees) which he or she actually and reasonably incurred in connection therewith.
The Registrants Amended and Restated Certificate of Incorporation, a copy of which is filed as Exhibit 3.1 hereto and incorporated herein by reference, and Third Amended and Restated Bylaws, a copy of which is filed as Exhibit 3.2 hereto and incorporated herein by reference, contain provisions that provide for the indemnification of officers and directors to the fullest extent as is permitted by the laws of the State of Delaware, as may be amended from time to time. In connection with the Separation, the Registrant will adopt a Second Amended and Restated Certificate of Incorporation and Fourth Amended and Restated Bylaws, which will contain substantially similar provisions regarding indemnification of officers and directors. The Second Amended and Restated Certificate of Incorporation and Fourth Amended and Restated Bylaws will be filed with the SEC on Form 8-K on June 3, 2019.
As permitted by Section 102(b)(7) of the DGCL, the Registrants Amended and Restated Certificate of Incorporation contains a provision eliminating the personal liability of its directors to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by the DGCL, as may be amended from time to time.
The Registrant maintains liability insurance for itself and its directors and officers to provide protection for claims based on alleged breaches of fiduciary duty or other wrongful acts committed or allegedly committed by the Registrants directors and/or officers, whether or not the Registrant has the power to indemnify the person under the DGCL.
For the list of exhibits, see the Exhibit Index to this Registration Statement, which is incorporated in this item by reference.
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Wilmington, Delaware on May 31, 2019.
POWER OF ATTORNEY
BE IT KNOWN BY THESE PRESENTS: That each person whose name is signed hereto has made, constituted and appointed, and does hereby make, constitute and appoint Erik T. Hoover and Jeanmarie F. Desmond as his or her true and lawful attorney-in-fact and agent, each acting alone, with full power of substitution and resubstitution for him or her and his or her name, place and stead, in any and all capacities to sign the Registration Statement on Form S-8 and any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and the other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, each acting alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as they might or could do in person, hereby ratifying and confirming all that said attorney-in-fact or his substitutes, each acting alone, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
RETIREMENT SAVINGS PLAN
Effective June 1, 2019
DuPont de Nemours, Inc.
TABLE OF CONTENTS
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DUPONT RETIREMENT SAVINGS PLAN
The purpose of this Plan is to encourage and assist employees in following a systematic savings program suited to their retirement goals and other individual financial objectives. This Plan is a profit-sharing plan.
DowDuPont Inc. was formed on December 9, 2015 to effect an all-stock, merger of equals strategic combination between The Dow Chemical Company and DuPont. DowDuPont Inc. engaged in a series of internal reorganization and realignment steps to realign its businesses into three subgroups: agriculture, materials science and specialty products. DowDuPont Inc. formed two wholly owned subsidiaries: Dow Holdings Inc., to serve as a holding company for its materials science business, and Corteva, Inc., to serve as a holding company for its agriculture business. DowDuPont Inc. separated from Dow Holdings Inc. (materials science business), effective April 1, 2019, and from Corteva, Inc., (agriculture business) effective June 1, 2019. After the separation of Corteva, Inc. effective June 1, 2019, DowDuPont Inc. is known as DuPont de Nemours, Inc., doing business as DuPont (the Company).
The Plan is comparable to Cortevas Retirement Savings Plan (Corteva Plan), a defined contribution plan which is sponsored by a subsidiary of Corteva, Inc. Before June 1, 2019, employees of the specialty products business of the Company participated in the Corteva Plan, along with employees of the Companys agriculture business. Due to the separation of the Company from Corteva, Inc. and its agriculture business on June 1, 2019, this Plan was created for the specialty products employees of the Company and/or its participating subsidiaries, effective June 1, 2019. All assets, account balances, and elections of active employees of the Company or its participating subsidiaries were transferred from the Corteva Plan to this Plan effective June 1, 2019.
The Company has determined that offering employer securities under the Plan aligns Plan Participants interests with shareholders interests.
Each Covered Employee shall become an Eligible Employee immediately upon his or her Employment Commencement Date or Reemployment Commencement Date if he or she is then a Covered Employee. If an individual is not a Covered Employee as of the first date he or she would otherwise become an Eligible Employee, he or she shall become an Eligible Employee on the first date he or she becomes a Covered Employee.
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Each Eligible Employee may elect to make Before-Tax, After-Tax and Roth 401(k) Contributions in a form designated by the Administrative Committee. Such election shall authorize the Participating Company to reduce such Eligible Employees Compensation by an amount determined in accordance with Article IV and to make contributions on such Eligible Employees behalf in the amount of such reduction in accordance with Article IV. Such election shall be effective as soon as practicable following its receipt by the Committee or its delegate.
An Eligible Employee who does not make an election within 60 days following his Employment Commencement Date or Reemployment Commencement Date in the form designated by the Administrative Committee shall be deemed to have elected to make Before-Tax Contributions in the amount of 6% of Compensation, and shall be deemed to have elected to increase this contribution by 1% of Compensation as of each succeeding anniversary of his enrollment in the Plan, to a maximum Before-Tax Contribution of 15% of Compensation. If at any time the individual makes a valid election to make or not to make Employee Contributions, the Participants affirmative election shall override any previous deemed election under this paragraph with respect to future contributions.
An individual may authorize his employer to (A) make a payroll deduction (hereafter, After-Tax Contribution) and/or (B) defer a portion of his Compensation (hereafter, Before-Tax Contribution) and pay it under this Plan in an amount per payroll period, and in the case of any other applicable payment paid other than on a regular payroll period, at the time of such payment, equal to any selected whole percentage up to 90% (except as required to comply with subparagraph (ii) below), provided that
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(A) The Plan is intended to satisfy the safe harbors set forth in sections 401(k)(12) and 401(m)(11) of the Code with respect to Participants Before-Tax Contributions and Participating Companies Matching Contributions. With respect to After-Tax Contributions, if the Plan Administrator determines that the discrimination standards of Code section 401(m) and the regulations thereunder may not be satisfied, it may take either of the following actions:
(B) The Plan Administrator shall determine periodically during the Plan Year whether the After-Tax Contributions elected by Highly Compensated Participants will, based on projections to the end of the Plan Year, cause the Plan not to comply with the limitations on contributions imposed by Section 401(m) of the Code. If the projections indicate that the limitations will be exceeded, the Plan Administrator shall prospectively limit After-Tax Contributions for Highly Compensated Participants.
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(C) If it is determined after the close of a Plan Year that participation by Highly Compensated Participants has exceeded the discrimination standards of Code Section 401(m) (Excess Aggregate Contributions), the amount of the Excess Aggregate Contributions shall be refunded to the Highly Compensated Participants in accordance with the following rules:
(D) In lieu of distributing Excess Aggregate Contributions, the Company (or any Participating Company) may make a Qualified Non-elective Contribution on behalf of Participants that is sufficient to satisfy the discrimination standards under Code Section 401(k) or 401(m) or both. Such Qualified Non-elective Contribution shall be allocated in a flat dollar amount or uniform percentage of Compensation to all or a portion of the eligible Non-Highly Compensated Participants. Any Qualified Non-elective Contribution shall be fully vested at all times and shall be distributable only at a Participants attaining age 59 1 / 2 or Separation from Service.
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(A) If the Plan Administrator determines that a Participant has made Before-Tax Contributions which for any calendar year exceeds $19,000 (or such other amount as may be permitted by regulation or other official announcement by the Secretary of Treasury), the excess amount (plus any income and minus any loss allocable thereto, as calculated in accordance with regulations), shall be distributed to the Participant not later than April 15th following the close of such calendar year.
(B) If a Participant participates in another plan which includes a qualified cash or deferred arrangement, and such Participant contributes in the aggregate more than the amount permitted under this subparagraph (3) and corresponding provisions of the other plan and the Participant notifies the Plan Administrator not later than March 1st following the close of such calendar year, then the Plan Administrator shall distribute to the Participant not later than April 15th following the close of such calendar year the excess amount (plus any income and minus any loss allocable to such amount) which the Participant allocated to this Plan.
All Participants who are eligible to make Before-Tax Contributions under this Plan and who have all attained age fifty (50) before the end of the calendar year shall be eligible to make catch-up contributions in accordance with, and subject to the limitations of, Code Section 414(v) and any guidance issued thereunder by the Internal Revenue Service. Such catch-up contributions shall not be taken into account for purposes of the provisions of the Plan implementing the required limitations of Code Sections 402(g) and 415. The Plan shall not be treated as failing to satisfy the provisions of Code Section 401(k)(3), 401(k)(11), 401(k)(12), 410(b), or 416, as applicable, by reason of the making of such catch-up contributions. Amounts that are contributed as catch-up contributions shall be taken into account as Before-Tax Contributions in determining the amount of Matching Contributions to which the Participant is otherwise entitled under the Plan.
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A Participant may change his or her Employee Contribution amounts by authorizing the Company to deduct or defer any higher or lower amount permitted by Paragraph 1 of this Section.
After-Tax Contributions shall be permitted only by deduction from a Participants Compensation, except that cash payments equivalent to the monthly After-Tax amount allowed by Paragraph 1 (a) of this Section may be accepted from a Participant on leave of absence granted under the Service Recognition Policy and shall be treated as deductions from the Employees Compensation for purposes of this Plan.
A Participant who has an account balance in the Plan may authorize suspension of his Employee Contributions without terminating his participation in the Plan.
Each Participating Company shall contribute to the Trust for each payroll period on behalf of each Eligible Employee an amount equal to one hundred percent (100%) of such Participants Employee Contributions for such Plan Year not in excess of six percent (6%) of such Compensation, reduced by the amount of Matching Contributions previously credited to the Participants Account for the Plan Year, provided that the contribution under this Section shall not cause the total contributions by the Participating Company to exceed the maximum allowable current deduction under the applicable provisions of the Code. Matching Contributions on behalf of an Eligible Employee shall be credited to such Eligible Employees Matching Contribution Account and shall be made no later than the date on which amounts so paid may be deducted for Federal income tax purposes for the taxable year of the employer in which the Plan Year ends. In determining whether a Participants Employee Contributions are matched or unmatched, Matching Contributions will be allocated first to Before-Tax Contributions.
Each Participating Company shall contribute to the Trust for each Plan Year such amount as it shall determine in its discretion, provided that the contribution shall not cause the total contributions by the Participating Company to exceed the maximum allowable current deduction under the
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applicable provisions of the Code and provided that any amount of Retirement Savings Contribution by a Participating Company must be approved in advance by the Company. Such contributions shall be allocated to the Retirement Savings Contribution Accounts of Participants employed by such company who are eligible to share in such Retirement Savings Contribution and who received Compensation during such month, in proportion to their Compensation for the portion of the month during which each is an Eligible Employee.
The following Funds shall be established for the investment of a Participants Account. The Investment Committee shall designate specific investment options offered within each category.
These funds will include actively and passively managed funds, and may include separately managed accounts managed by Investment Managers specifically for plans sponsored by the Company, collective trusts, or mutual funds.
The Company Common Stock Fund is designated as a stock bonus plan that is an employee stock ownership plan designed and intended to invest primarily in qualifying employer securities allowing the Company to take advantage of the tax deduction under Section 404(k) of the Internal Revenue Code. Amounts deposited in the Company Stock Fund shall be invested in Company common stock (Company Stock) without regard to (i) the diversification of assets, (ii) its risk profile, (iii) the amount of income provided by it, or (iv) the fluctuation in its fair market value, unless the Investment Committee, or its delegate, determines in its sole discretion that there is a serious question regarding the Companys short-term viability as a going concern, or the financial collapse and bankruptcy of the Company are unavoidable.
Amounts deposited in these Funds shall be invested in asset allocation funds, which may be separately managed accounts, linked to a target retirement age consisting of a portfolio diversified among the equity and fixed income sectors of the securities marketplace. Assets are transferred among these sectors in such manner and to such extent as the Investment Committee or fund manager shall select.
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Amounts deposited in the Self-Directed Brokerage Fund will be invested, at the direction of the Participant, in mutual funds available through the brokerage.
Amounts transferred to the Loan Fund from the other Funds shall be loaned to Participants.
Effective April 1, 2020, the Dow Common Stock fund shall be eliminated from the Plan and all Dow Common Stock remaining in the Plan shall be liquidated and immediately reinvested in the investment fund as selected by the Investment Committee.
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Each Participant shall authorize the Company to allocate his or her Account, including Before-Tax Contributions, After-Tax Contributions, Company Matching Contributions and Retirement Savings Contributions among investment options offered under the Plan in percentages in whole multiples of one percent (1%).
A Participant may change his investment direction by authorizing any other allocation permitted by this Section. Pursuant to Section 404(c) of the Employee Retirement Income Security Act (ERISA), to the extent that a Participant exercises control over assets in his or her Account, then the Plans Trustee and other Named Fiduciaries shall not be responsible for any investment losses attributable to a Participants investment decisions with respect to such assets. This Plan is intended to qualify as an ERISA Section 404(c) plan, and shall at all times be interpreted and administered accordingly.
A Participants Before-Tax Contributions and After-Tax Contributions and earnings thereon will be nonforfeitable. A Participants Before-Tax Account will be maintained in a separate account from a Participants After-Tax Contributions, Company Contributions and earnings thereon.
A Participant may authorize the transfer of all or part of the value of his or her Account among Funds, subject to the following rules:
The determination of values for this purpose shall be made in accordance with the provisions of Sections X. and XI.
A Participant who is granted a Loan or Loans from the Plan shall authorize the Transfer of cash to a Loan Fund in an amount equal to the principal amount of the Loan or Loans. Such Transfers shall be made pro rata from the Funds and from the Participants borrowable Account balance in the following order:
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Repayments of principal and interest to the Loan Fund shall be transferred to the other Funds in the same proportion that current investment direction of contributions is made to those Funds under Sections VII.1. and 2. If there is no current investment direction, Transfers under this Paragraph shall be made to the default investment fund as selected by the Investment Committee. Repayments of principal under this Paragraph shall be restored to the Participants Account in reverse order from that set forth in Paragraph 2 of this Section. Payments of interest shall be treated as Earnings and shall be allocated to the Account in the same proportion that unpaid principal from each Account bears to the total unpaid principal prior to such payment.
Despite any other provisions of the Plan, the Investment Committee may at any time implement restrictions on investment options, or decline to implement investment instructions, as it deems appropriate to protect the interests of Plan Participants.
Throughout this Section, the words the Fund shall mean the investment options available under the Plan, except the Loan Fund.
Amounts allocated to the Fund(s) in accordance with the terms of this Plan shall be paid by the Company to or at the direction of Trustee(s) appointed by the Company for the Fund(s), and shall be deposited in an account for the Fund(s).
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Each Participant shall be entitled to direct the Trustee as to the manner in which voting rights with respect to the shares or units represented by the Participants Account in the Fund are to be exercised, except that no voting rights shall be exercised by Participants with respect to Funds that are separately managed accounts. The Trustee shall vote the number of shares or units in accordance with such instructions. If a Participant does not return voting proper instructions in a timely manner, such inaction shall be deemed an election not to vote such shares or to vote such shares as the default option described on the proxy or voting instructions, as applicable.
Amounts allocated to the Company Stock Fund shall be used to purchase Company Stock. Such Company Stock and any other assets of the Company Stock Fund shall be held in the name of the Trustee or of one or more of its designated nominees. The Trustee may sell any stock purchase warrants or distribution of property received, and the proceeds shall be invested currently in Company Stock. Any stock dividend, split-up or other change in Company Stock, or any distributions of property applicable to the shares held by the Trustee, shall be applied for the exclusive benefit of the account holders in the Company Stock Fund.
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The current value of an Account in the Fund on any business day shall be the total number of shares and fractional interests in a share in the Account multiplied by the closing price of Company Stock on the New York Stock Exchange for that business day, plus any proportionate ownership of accrued income and cash held for a Participant by the Trustee for the Fund.
For purposes of Fund Transfers Out, Loans, Withdrawals and Termination or Other Distributions, the value of shares liquidated in connection with the transaction shall be the average selling price as determined by the Trustee on the date of the transaction.
For purpose of Fund Transfers In and Purchases of Company Stock, the value of the Company Stock purchased in connection with the transaction shall be the average purchase price as determined by the Trustee on the date of the transaction.
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Each Participant shall be entitled to direct the Trustee as to the manner in which voting rights with respect to any Company stock attributable to the number of shares and fractional interest in a share represented by the Participants Account in the Company Stock Fund are to be exercised. The Trustee shall vote the number of shares in accordance with such instructions. Any such instructions shall remain in the strict confidence of the Trustee. If a Participant does not return proper voting instructions to the Trustee in a timely manner, the Investment Committee shall engage an independent fiduciary to exercise such voting rights.
Each Participant shall be entitled to direct the Trustee as to whether to exercise a tender offer with respect to any Company stock or Corteva Stock credited to such Participants Account in the Company Stock Fund or Corteva Stock Fund, as applicable. The Trustee shall tender such shares in accordance with such instructions. If a Participant does not return proper tender instructions to the Trustee in a timely manner, such inaction by the Participant shall be deemed a decision not to tender, and the Trustee shall not tender shares credited to such Participants Account.
Any cash dividend paid with respect to shares of Company stock allocated to a Participants Account as of the record date of such dividend will be, as elected by the Participant prior to the payment date in the form and matter required by the Company, (1) distributed in cash to the Participant as soon as administratively practicable following the date such dividend is paid by the Company (but in no event later than 90 days following the end of the Plan Year in which such dividend is paid by the Company) or (2) retained by the Trustee for credit to the Participants accounts Account in the Company Stock Fund. Any dividends credited to a Participants Account pursuant to this paragraph shall be fully vested to the extent required by Section 404(k) of the Code.
Amounts transferred to this Fund shall be loaned to the Participant provided the Administrative Committee or its delegate has received the documents described in Section XIII.8.(d). The promissory note executed by the Participant shall be held by the Trustee until the loan has been paid in full.
Interest at the rate prescribed in the loan agreement shall accrue daily.
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Repayments of principal and interest amounts shall reduce the loan Fund and be transferred to the Participants Account(s) as provided in Section VIII.3. When the account balance in the loan Fund has been reduced to zero, the Administrator shall notify the Trustee that the loan has been repaid and the Trustee shall cancel the promissory note and return it to the Participant, if the Participant so requests. The Administrator shall notify Participant that loan has been repaid.
The current value of the Account on any date shall be the outstanding loan balance plus any unpaid accrued interest.
A Participant with a borrowable account balance of $1,000 or more may request a loan subject to the conditions stated in this Section (hereafter, Loan).
For purposes of this Section and Section VIII., the borrowable account balance shall equal one-half of the Participants vested Accounts (but excluding Retirement Savings Contribution Account), and less amounts held in account pursuant to a qualified domestic relations order.
Loans shall not be for less than $1,000. The maximum amount of any Loan from this Plan may not exceed the Participants borrowable Account balance, and, when added to the outstanding balance(s) of all other loans from this or any other qualified plans sponsored by any member of the controlled group, shall not exceed the lesser of:
A Participant may be required to pay fees in connection with a Loan, in the discretion of the Investment Committee.
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The rate of interest for Loans granted during any monthly period shall be determined as of the last working day of the month preceding the date on which the Loan application is made and shall be a rate that provides the Plan with a return commensurate with the interest rates charged by persons in the business of lending money for loans which would be made under similar circumstances.
The term of the Loan shall be the period requested by the Participant and accepted by the Administrator. The minimum term shall be 12 months and the maximum term 60 months, except for a qualified residential Loan. The maximum term for a qualified residential Loan shall be 120 months. The Administrator shall determine, based on information furnished by the Participant, whether a Loan is a qualified residential Loan, as defined in Paragraph 8. of this Section.
Except as provided in Subparagraph (b) below, Loans shall be repaid in installments by deduction from a Participants salary or wages according to the amortization schedule in the disclosure statement.
Notwithstanding the foregoing, a Participant shall have the right to repay at any time prior to the expiration of the term of the Loan, without penalty, the outstanding balance of the Loan plus accrued interest to the end of the month in which repayment occurs. Such payment shall be made in such form as permitted by the Administrator.
If the Participants salary or wage payment is not sufficient to allow deduction of the full installment and the Participant does not make a direct payment, as provided in Paragraph 5.(b) of this Section, a default will be declared under Paragraph 6 of this Section.
The Administrator, at the Participants request, may permit installments of principal and interest to be repaid in a manner other than by payroll deduction under the following circumstances:
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If, while any portion of a Loan granted under this Section is outstanding, the Participant fails to make a scheduled repayment or a direct payment when due, the Loan shall be declared in default.
The Plan Administrator may reinstate a Loan following a declaration of default, provided:
A Deemed Withdrawal shall not be considered a withdrawal for purposes of the limitation on the number of withdrawals permitted under Section XIV.1.
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The Administrator is responsible for the administration of the Loan program described in this section.
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A Participant may make a withdrawal in cash from his or her Before-Tax Account and Roth 401(k) Account by establishing hardship. In order to prove hardship, a Participant must show (1) that he has an immediate and heavy financial need; and (2) that the hardship distribution is necessary to satisfy the immediate and heavy financial need. The Administrator shall act on requests for withdrawals and appeals under this Section. The amount of an immediate and heavy financial need may, at the participants request, include any amounts necessary to pay any federal income taxes or penalties reasonably anticipated to result from the distribution.
A Participant may establish the existence of an immediate and heavy financial need by showing that his immediate and heavy financial need results from one of the following deemed hardship conditions:
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For purposes of these deemed hardship conditions only, references to spouse or dependents of a Participant shall include an individual who is the Participants domestic partner, as determined by the Administrative Committee.
A Participant may establish that the hardship distribution is necessary to satisfy his or her immediate and heavy financial need in one of two ways. Under no circumstances will a distribution be considered necessary to satisfy an immediate and heavy financial need if it is in excess of that need. A Participant may demonstrate by all relevant facts and circumstances that a distribution is necessary to satisfy the hardship need. Under this facts and circumstances option, a Participant must establish in a sworn and notarized statement that the immediate and heavy financial need cannot be relieved
For purposes of the preceding paragraph, assets of the Participant include assets of the Participants spouse and minor children reasonably available to the Participant. Property held for a Participants child under an irrevocable trust or under the Uniform Gifts to Minors Act shall not, however, be treated as an available resource of the Participant.
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Alternatively, a Participants request for a distribution to meet an immediate and heavy financial need may be deemed necessary to satisfy the need. Under this option, a Participant must establish in a sworn and notarized statement that:
The amount which may be withdrawn cannot exceed the total of the Participants Before-Tax Contributions (and income allocable thereto credited to a Participant as of December 31, 1988) nor the amount necessary to satisfy the immediate and heavy financial need created by the hardship.
In no event, however, may a Participant withdraw any Qualified Non-elective Contribution (as described in Section IV.1.(a)(2)(D)) allocated to his or her account.
XVI. VESTING AND TERMINATION OF PARTICIPATION
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With respect to non-Spouse Beneficiaries (including a beneficiary who is a spouse of a Former Participant), the balance of a deceased Participants or Alternate Payees Plan Account will remain in the Plan and Funds as of the time of his or her death, pending distribution or transfer to a beneficiary account. Total distribution shall be made to such beneficiaries no later than the last date permitted by Code Section 401(a)(9) and related regulations.
If in the opinion of the Company there is a question as to the legal right of any beneficiary to receive a distribution under the Plan, the amount in question may be paid to the decedents estate, in which event the Trustee and the Company shall have no further liability to anyone with respect to such amounts. Non-Spouse Beneficiaries may not designate beneficiaries; account balances remaining at the time of their death will be paid to their estates as soon as practicable following the death of the Non-Spouse Beneficiary; provided that amounts not in excess of amounts required to be distributed under Section 401(a)(9) may be paid in a direct rollover to an individual retirement account, if elected by such Non-Spouse Beneficiary in accordance with applicable provisions of the Code.
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All amounts forfeited by Participants terminating their participation in the Plan shall be applied to reduce Company Contributions required by Section V or to pay administrative expenses of the Plan, as directed by the Plan Administrator.
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A Participant whose employment with the Company or with a partnership or a joint venture in which the Company has an ownership interest and with whom such Participant was employed at Company request, is to be terminated in connection with the sale by the Company of any business or facility or of the Companys interest in such entity, may, at any time prior to termination of employment (or at a later date, as permitted and determined in the sole discretion of the Company based on business conditions concerning the sale), designate that the vested balance in his Account be paid in cash and promissory note(s) directly to the trustee of a qualified defined contribution plan maintained by the purchaser of the business or facility if such plan will accept the transfer of assets and note(s). If the transferee plan will accept a transfer of shares of stock, the Company, in its sole discretion, may permit a transfer in kind of such stock.
Payment to the trustee of the receiving plan will be made as soon as practicable after the Company receives satisfactory proof that the requirements of Section 414(1) of the Code will be satisfied in the transfer of assets. At any time prior to such transfer of assets, the individual may request distribution of the balance of his accounts. Such payment to the trustee of the receiving plan or distribution to the individual will be in cash (and promissory note(s), if applicable) as of the valuation date on which such proof or request, respectively, is received by the Company.
After termination of service, Former Participants may defer distribution of their Accounts under the Plan if their vested account balances exceed $5,000 at the time of termination and they do not consent to the distribution of their account balances.
No further Company Contributions or employee After-Tax Contributions or Before-Tax Contributions will be permitted. A total distribution may be taken at any time.
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Under this option, the proceeds in the Participants, or Spouse Beneficiarys vested Account will be paid out in a specified number of monthly or annual periodic payments beginning in the month following that in which the Participant terminates employment or that in which the Participant, or Spouse Beneficiary elects periodic payout and ending (subject to amounts available in the account) after the specified number of payments have been made or in the month of notification to the Plan Administrator of the death of the Participant or Spouse Beneficiary, the remainder being paid to the designated beneficiary(ies) in accordance with this Section. The specified number of monthly periodic payments under this option cannot exceed a period based on the actuarial life expectancies specified in the Joint and Last Survivor Table in Treasury Regulation Section 1.401(a)(9)-9 for the Participant or Spouse Beneficiary and an individual 10 years younger than the Participant or Spouse Beneficiary (or, if the spouse of the
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Participant or Spouse Beneficiary is more than 10 years younger, the actual joint life expectancy). A Spouse Beneficiary may continue to receive the remaining periodic payments after the death of the Participant (provided that payments to the spouse must be made at least as quickly as the spouses life expectancy under the Single Life Table in Treasury Regulation Section 1.401(a)(9)-9, beginning on the date the Participant died or reached age 70 1 / 2 ); or
Under this option, the proceeds in the Participants or Spouse Beneficiarys vested Account will be paid out in monthly or annual periodic payments based on the actuarial life expectancies specified in the Joint and Last Survivor Tables in Treasury Regulation Section 1.401(a)(9)-9, recalculated annually, for the Participant or Spouse Beneficiary and an individual 10 years younger than the Participant or Spouse Beneficiary (or, if the spouse of the Participant or Spouse Beneficiary is more than 10 years younger, the actual joint life expectancy, beginning with the month following that in which the Participant terminates employment or that in which the Participant or Spouse Beneficiary elects periodic payout, and ending (subject to amounts available in the account) in the month of notification to the Plan Administrator of the death of the Participant or Spouse Beneficiary). Upon the Participants death, any remainder shall be paid to the designated beneficiary(ies) in accordance with this Section except that a Spouse Beneficiary of a Participant receiving Lifetime Periodic Payments under this Section XVI.3.(a)(B) may continue receiving installments which shall be recalculated annually over the Spouse Beneficiarys life expectancy determined in accordance with Treasury Regulation Section 1.401(a)(9) and the Single Life Table contained in those regulations.
Under this option, the proceeds in the Participant or Spouse Beneficiarys vested Account will be paid out in a specified monthly or annual amount designated by the Participant or Spouse Beneficiary. The designated amount shall be paid on a monthly or annual basis beginning in the month following that in which the Participant terminates employment or that in which the Participant or Spouse Beneficiary elects the Fixed Payment option and end at such time as the account balance is zero.
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The Years of Service of an Employee whose Years of Service have been canceled pursuant to Subsection 4. above shall be restored to his or her credit if he or she thereafter completes an Hour of Service at a time when the number of his or her consecutive one-year Breaks in Service is less than five.
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Neither the Trustee nor the Company shall be obliged to search for or ascertain the whereabouts of any individual entitled to benefits under the Plan. Any individual entitled to benefits under the Plan who does not file a timely claim for his benefits will be allowed to file a claim at any later date, and payment of his benefits, without interest, will commence after that later date.
Except as provided by Section 401(a)(13) of the Code, no assignment of the rights or interests of account holders under this Plan will be permitted or recognized, nor shall such rights or interests be subject to attachment or other legal processes for debts.
XVIII. OPERATION OF THE PLAN AS A TOP-HEAVY PLAN
If it is determined that the Plan is a top-heavy plan, within the meaning of Section 416(g) of the Code, for any Plan Year, this Section will supersede all other provisions to the contrary and apply for such Plan Year.
Contributions by the Company under the Plan on behalf of each Participant who has not separated from service at the end of the Plan year and who is a non-key employee shall not be less than three percent (3%) of his or her Compensation.
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For purposes of these top-heavy provisions, the following definitions shall apply:
XIX. MISCELLANEOUS PROVISIONS
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(1) to enact uniform and nondiscriminatory rules and regulations to carry out the provisions of the Plan;
(2) to resolve questions or disputes relating to eligibility for or the amount of benefits under the Plan;
(3) to construe and interpret and supply omissions with respect to the provisions of the Plan;
(4) to evaluate administrative procedures.
(1) The Senior Vice President, Human Resources, or his or her delegate, shall name and designate a Trustee and shall enter into a Trust Agreement. The Senior Vice President, Human Resources, or his or her delegate, shall have the power to amend the Trust Agreement, remove the Trustee, and designate a successor Trustee, as provided in the Trust Agreement. All of the assets of the Plan shall be held by the Trustee for use in accordance with the Plan. The Trustee shall be the named fiduciary with respect to management and control of Plan assets held by it and, except as provided below, shall have exclusive and sole responsibility for the custody and investment thereof in accordance with the Trust Agreement. Notwithstanding anything herein to the contrary, multiple Trustees may be appointed, and multiple Trust Agreements entered into, where desirable to provide for all management and control of different Plan assets. References to Trustee and Trust Agreement herein shall cover all Trustees and Trust Agreements.
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(2) The Investment Committee shall be the named fiduciary with respect to the selection, oversight and monitoring of the investment options available to Participants. The Investment Committee, as Named Fiduciary, may appoint one or more investment managers (within the meaning of section 3(38) of ERISA) to manage all or a portion of the investment options available to Participants, including the power to make further appointments or delegations to additional investment managers, and the original investment manager shall be a named fiduciary with respect to the appointment of such additional investment managers. The Investment Committee may delegate such duties and powers as it shall determine from time to time to any person or persons, including delegating the authority to make further delegations. To the extent of any such delegation, the delegate shall have the duties, powers, authority and discretion of the Named Fiduciary.
(1) to retain such consultants, accountants and attorneys as may be deemed necessary or desirable to render statements, reports, and advice with respect to the Plan and to assist the fiduciary in complying with all applicable rules and regulations affecting the Plan; any consultants, accountants and attorneys may be the same as those retained by the Company; and
(2) to delegate such duties and powers as the fiduciary shall determine from time to time to any person or persons, including delegating the authority to make further delegations. To the extent of any such delegation, the delegate shall have the duties, powers, authority and discretion of the fiduciary.
Any decisions and determinations made by a Named Fiduciary pursuant to its duties and powers described in the Plan shall be conclusive and binding upon all parties. Each Named Fiduciary shall have sole discretion in carrying out its responsibilities. The expenses incurred by a Named Fiduciary in connection with the operation of the Plan, including, but not limited to, the expenses incurred by reason of the engagement of professional assistants and consultants, shall be expenses of the Plan and shall be payable from the Trust at the direction of the Investment Committee. The Participating Companies shall have the option, but not the obligation, to pay any such expenses, in whole or in part, and, by so doing, to relieve the Trust from the obligation of bearing such expenses. Payment of any such expenses by a Participating Company on one occasion shall not bind that Participating Company to pay any similar expenses on any subsequent occasion.
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The Company reserves the right to change or discontinue this Plan in its discretion by action of the Company or by written instrument executed by such person or persons as the Company may designate; provided, however, any change which has the effect of reducing or terminating benefits under this Plan will not be effective until one year following announcement of such change by the Company, unless earlier change is required to comply with governmental regulations. In the event of the complete or partial termination of the Plan, or complete discontinuance of Company Contributions under the Plan, affected Participants Account will become fully nonforfeitable and distribution of full shares of Company Stock, Dow Common Stock, or Corteva Stock, and all cash balances including those resulting from the liquidation of the Funds will be made to the affected Participants.
Where an individual is in a bargaining unit represented by a union for collective bargaining, with which discussions have been had concerning this Plan as last amended, the provisions of the amended Plan shall not become effective for such individual unless and until (i) such discussions or (ii) existing collective bargaining agreements result in favor of applicability of the amended Plan. The terms of the Plan in effect immediately prior to the last amendment shall continue to apply to an individual so excluded unless and until discussions with the union representing his unit have concluded in favor of applicability to the unit of the amended Plan or of other employee benefits in lieu thereof, or unless and until the individual is made eligible under the amended Plan by lawful unilateral action of the Company.
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For accounts transferred from a plan with identical investment options, assets held in those options shall be transferred in kind.
For accounts transferred from a plan without identical investments, transferred amounts will be invested as determined by the Investment Committee.
The Company does not guarantee or represent in any way that the value of stocks and other assets in which the account holder has an interest will increase or will not decrease. Each Participant assumes all risks in connection with any changes in the value of securities and other assets in the various Funds in which he may have an interest.
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This Plan provision supersedes any other Plan provision which would conflict with this one.
The Plan will make payment from an account holders Account as required by a qualified domestic relations order, as defined under Section 414(p) of the Code. Any amounts awarded to an Alternate Payee, prior to the death of the Participant pursuant to a domestic relations order determined by the Plan Administrator to be qualified shall be distributed within 90 days of such determination, unless the qualified domestic relations order specifies that the Alternate Payee shall have an account in the Plan. No Loan, Withdrawal, or other action otherwise permissible pursuant to any provision of the Plan shall be taken which, in the opinion of the Plan Administrator, may be inconsistent with the provisions of a qualified domestic relations order.
Normal retirement age under the Plan is age 65. A Participants years of Service will include any calendar year during which an employee is credited with 1,000 or more Hours of Service. For determining Years of Service, an employee will be treated as being compensated with respect to 190 hours for each month in which he is compensated with respect to at least one Hour of Service. In the case of a reenrolled Participant, periods of participation prior to reenrollment will be recognized only as provided in Section XVI.
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The maximum amount of annual compensation of a Participant that shall be taken into account under this Plan for any year shall not exceed the amount prescribed in Code Section 401(a)(17).
No amendment to the Plan shall be effective to the extent it has the effect of decreasing a Participants accrued benefit. For purposes of this paragraph, a Plan amendment which has the effect of decreasing the Participants account balance or eliminating an optional form of benefit, with respect to the benefits attributable to service before the amendment shall be treated as reducing an accrued benefit.
If the Plans vesting schedule is amended, or the Plan is amended in any way that directly or indirectly affects the computation of the Participants nonforfeitable percentage or if the Plan is deemed amended by an automatic change to or from a top-heavy vesting schedule, each Participant with at least three (3) Years of Service with the Employer may elect, within a reasonable period after the adoption of the amendment or change, to have the nonforfeitable percentage computed under the Plan without regard to such amendment or change.
The period during which the election may be made shall commence with the date the amendment is adopted or deemed to be made and shall end on the latest of:
Furthermore, if the vesting schedule of a Plan is amended, in the case of an Employee who is a Participant as of the later of the date such amendment is adopted or the date it becomes effective, the nonforfeitable percentage (determined as of such date) of such Employees right to his or her Employer-derived accrued benefit will not be less than his or her percentage computed under the Plan without regard to such amendment.
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The term Affiliated Group means the Controlled Group, but does not include any foreign subsidiary or any domestic subsidiary which derives in excess of 50% of its gross income for a taxable year from sources without the United States (as defined in Section 7701(a)(9) of the Code).
The term Before-Tax Account means the account in which a Participants Before-Tax Contributions and earnings thereon are maintained.
The term Break in Service means, for any Employee, a computation period in which he or she is credited with less than 500 Hours of Service.
The term Code means the Internal Revenue Code of 1986, as amended.
The term Company means DuPont de Nemours, Inc. and the term Predecessor Company means E.I. du Pont de Nemours and Company as it existed as a corporate entity prior to June 1, 2019.
The term Company Contributions means Matching Contributions and Retirement Savings Contributions.
The term Compensation shall mean:
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No other amounts paid after severance from employment shall be included in compensation for this purpose.
The annual compensation of each Participant taken into account for determining any limitation or determination period shall not exceed $280,000, as such limit is adjusted by the Secretary as provided under Section 415(d) of the Code.
A differential wage payment (as defined in Code Section 3401(h)(2)) is treated as Compensation for purposes of the Plan.
The term Controlled Group means DuPont de Nemours, Inc. and its controlled group of corporations within the meaning of Section 1563(a) of the Code.
The term Corporate Employer shall mean the Controlled Group, as modified by Code Section 415(h).
The term Covered Employee means any Employee who (a) is classified by a Participating Company as a common law employee of such Participating Company, and (b) is not covered by a collective bargaining agreement, unless such agreement specifically provides for participation hereunder. A Covered Employee shall not include a person who is receiving severance pay, retainer, commission, or fee under contract. An individual who is not classified by a
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Participating Company as a common law employee shall not be a Covered Employee regardless of whether (1) the individual is considered an Employee by reason of being a leased employee (whether or not within the meaning of the definition of Leased Employee in this Article), (2) the individual is classified by a Participating Company as an independent contractor, or (3) for employment tax or other purposes, the individual is subsequently determined to be a common law employee, or not to be a leased employee (whether or not within the meaning of the definition of Leased Employee in this Article) or independent contractor. For purposes of determining eligibility under the Plan, the classification to which an individual is assigned by a Participating Company shall be final and conclusive, regardless of whether a court, a governmental agency or any entity subsequently finds that such individual should have been assigned to a different classification.
A Covered Employee shall not include a Temporary Employee.
The Term Eligible Employee means an Employee who has become an Eligible Employee as set forth in Article II. and who is a Covered Employee at any applicable time.
The term Employee
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The term Employee Contributions means Before-Tax, After-Tax, Catchup, and Roth 401(k) Contributions.
The term Employment Commencement Date means, for any Employee, the date on which he is first entitled to be credited with an Hour of Service.
The term Former Participant shall mean an individual who had been a Participant but who terminated his or her service with the Company under circumstances described in Section XVI.4.(f)(i) or (ii).
The term Gain-Sharing Program shall mean a pay program that provides additional pay only if business objectives are exceeded.
The term Highly Compensated Employee shall mean an employee who:
The $125,000 amount shall be automatically adjusted if and to the extent the corresponding amount applicable under Section 414(q) is adjusted by the Secretary of the Treasury.
The term Hour or Hour of Service means each hour for which an employee is compensated or entitled to compensation for the performance of duties and includes each such hour for which back pay, irrespective of mitigation of damages, has been awarded or agreed to by the Company. An hour also includes each hour for which an employee is compensated or entitled to compensation due to vacation, holiday, illness, incapacity (including disability), jury duty, military duty or leave of absence. No more than 501 hours shall be credited hereunder to any employee on account of any single continuous period during which no duties are performed unless such period of compensation is taken into account in determining an employees length of continuous service under the Service Rules. Hours shall be credited to the period during which the duties are performed or to which the payment relates and, in the case of a period where no duties are performed, shall be credited on the basis of the number of regularly scheduled working hours during the period. All hours shall be credited in conformance with Section 2530.200b-2(b) and (c) of Department of Labor regulations, which is incorporated herein by reference.
The term Participant shall mean an individual who has an Account in this Plan.
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The term Participating Company means the Company and each other organization that adopts this Plan with approval of the Company as listed on Schedule A.
The term Plan Administrator or Administrator means the Administrative Committee appointed as named fiduciary to administer the Plan.
The term Plan Year means January 1 through December 31.
The term Required Beginning Date for an individual who is a 5% owner as defined in Sections 401(a)(9) and 416 of the Code shall mean April 1 of the calendar year following the calendar year in which he or she attains 70 1 / 2 , and for any other individual shall mean April 1 of the calendar year following the later of the calendar year in which he or she attains age 70 1 / 2 or has a Separation from Service.
The term Separation from Service means, for any Employee, his death, retirement, resignation, discharge, or any absence that causes him or her to cease to be an Employee.
The term Service Rules means the Companys Service Recognition Policy.
The term Settlement means final valuation of an account holders accounts in preparation for distribution of the balance of his accounts.
The term Spouse shall mean a spouse as defined by Federal law, including a spouse of the same sex in marriages celebrated on or after June 26, 2013 in a state whose laws authorize same-sex marriage.
The term Spouse Beneficiary shall mean a spouse who is designated a primary beneficiary of a Participant in accordance with Section XVI.2.(b).
The term Temporary Employee shall mean an individual hired to complete a special project of limited duration or to fill the vacancy of an employee who is on a leave of absence.
The term Total Disability means, with respect to any Participant, a disability with respect to which he or she is eligible for and receiving disability benefits under a long term disability plan sponsored by the Participating Company.
The term Trustee means Merrill Lynch Trust Co. FSB, or its successor, or such other trustee(s) appointed and acting under the trust agreement(s) executed under this Plan.
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The term Transfer means transfer of Plan assets between or among the various Plan Funds in accordance with Section VIII . of the Plan.
Notwithstanding any provision of this Plan to the contrary, contributions, benefits and service credit with respect to qualified military service will be provided in accordance with section 414(u) of the Code.
All claims and appeals procedures provided for in the Plan must be exhausted before any legal action is brought. A claimant seeking judicial review of an adverse benefit determination under the Plan, whether in whole or in part, must file any suit or legal action (including, without limitation, a civil action under Section 502(a) of ERISA) within 12 months (the Limitations Period) following the date the final adverse benefit determination is issued. Notwithstanding the foregoing, any claimant that fails to engage in or exhaust the claims and review procedures must file any suit or legal action within the Limitations Period following the date of the alleged facts or conduct giving rise to the claim (including, without limitation, the date the claimant alleges he or she became entitled to the Plan benefits requested in the suit or legal action). Nothing in this Plan should be construed to relieve a claimant of the obligation to exhaust all claims and review procedures under the Plan before filing suit in state or federal court. A claimant who fails to file such suit or legal action within the Limitations Period will lose any rights to bring any such suit or legal action thereafter.
IN WITNESS WHEREOF, DuPont de Nemours, Inc. has caused this Plan to be executed by its duly authorized individual on the date shown below, but effective as of the date(s) indicated herein.
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Effective June 1, 2019
Agtech Products Inc. (1403)
Belco Technologies Corporation (1242)
Coastal Training Technologies Corp. (1321)
Danisco US Inc. (1395)
Danisco USA Inc. (1396)
DDP Spec Elec Mat US 9, LLC. (2673)
DDP Specialty Elect Mat US Inc (2670)
DDP Specialty Electronic Materials US 5, LLC (2667)
DDP Specialty Electronic Materials US 8, LLC (2668)
DuPont Electronic Polymers LP (1023)
DuPont Industrial Biosciences USA, LLC (9501)
DuPont Nutrition USA, Inc. (9500)
DuPont Specialty Products USA, LLC (8974)
EKC Technology, Inc (1027)
FilmTec Corporation (1921)
MECS Inc. (1374)
Multibase, Inc. (2302)
Rohm & Haas Elect Matl CMP Inc (2261)
Rohm & Haas Electronic Materials LLC (2260)
Solae L.L.C. (1077)
Specialty Products US, LLC (7484)
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SPECIAL RULES APPLICABLE TO
CERTAIN AMOUNTS TRANSFERRED FROM THE CORTEVA PLAN.
Amount credited to a Participants matching contribution account in the ChemFirst Inc. 401(k) Savings Plan that were transferred to this Plan shall continue to vest upon the Participants completion of 3 years of service.
Notwithstanding any provision of this Plan to the contrary, the following provisions apply to each former participant (Prior Danisco Plan Participants) in the Danisco Ingredients 401(k) Savings Plan (Hauppauge, New York and St. Louis, Missouri), the Danisco Ingredients USA, Inc. Employee Funded 401(k) Plan, and Danisco Ingredients
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USA, Inc. Money Purchase Pension Plan (Prior Danisco Plans) who had an account balance in one or more of the Prior Danisco Plans on April 30, 2003, and apply to all benefits held for the account of each such participant under this Plan attributable to contributions for Plan Years beginning prior to January 1, 2007 (the Prior Danisco Plan Benefit).
Vesting. The Prior Danisco Plan Benefit will continue to vest at 20% per year of service.
Withdrawals. The Prior Danisco Plan Benefit may be withdrawn upon a Participants attainment of age 62.
Normal form of benefit. The normal form of distribution for the Prior Danisco Plan Benefit shall be an annuity equal to the value of the Prior Danisco Plan Benefit and:
Optional Forms of Benefit. If a Prior Danisco Plan Participant does not want his/her Prior Danisco Plan Benefit paid in the normal form of benefit described above, he/she may make a written election (with spousal consent if he/she is married) to have his/her vested benefit used to purchase an annuity described in (a), (b) or (c) below or paid in the optional form described in (d). This election must be delivered to the Administrative Committee within the ninety day period (or such longer period allowed by law) beginning before the Annuity Starting Date. No election shall be effective, however, unless the payment complies with the required minimum distribution and incidental death benefit rules.
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Within a reasonable time before his/her annuity Starting Date, the Prior
Danisco Plan Participant shall receive in writing from the Administrative Committee general information about the election. Such information shall be written in nontechnical language and shall include a general explanation of the Joint and Survivor
Annuity; a description of the circumstances under which the Joint and Survivor Annuity will be paid unless such Prior Danisco Plan Participant elects otherwise; a description of the election procedure and the time period during which the election
must be made or revoked; a description of the relative financial effect making or revoking such an election would have on such Prior Danisco Plan Participants benefit under the Plan; and a description of the rights of the Prior Danisco Plan
Participants Spouse to consent to any such election to waive the Joint and Survivor Annuity. No Prior Danisco Plan Participant may make an election under this Section of this Exhibit or revoke such an election on or after the date the first
payment of the Participants benefit would be payable under this Section. For purposes of this Section, the term spouse shall mean the individual to whom a Participant is legally married as of the earlier of such Participants
date of death or the date payment of his/her benefit under this Plan begins, or any former Spouse of the Participant treated as his/her Spouse or surviving Spouse under Code Section
Death Benefits. In the event a Prior Danisco Plan Participant dies before the Annuity Starting Date with respect to his/her Prior Danisco Plan Benefit, his/her Prior Danisco Plan Benefit shall be payable to his/her surviving Spouse in the form of a Qualified Pre-Retirement Survivor Annuity unless his/her Spouse consents to waive the Qualified Pre-retirement Survivor Annuity. This Section shall be applied with respect to the Prior Danisco Plan Benefit (and only with respect to such Prior Danisco Plan Benefit) as if the normal form of distribution under the Plan were a Qualified Joint and Survivor Annuity.
Participants who became eligible to participate in this Plan shall receive credit under this Plan for service credited under the Solae Savings Investment Plan as of December 31, 2015.
Amounts credited to a Participants Company Profit Sharing Contributions Account in the Solae Savings Investment Plan that were transferred to this Plan may be withdrawn at any time after the Participant attains age 59 1 / 2 . Otherwise, Company Profit Sharing Contributions shall be subject to the same rules as Retirement Savings Contributions.
Coastal Training Technologies Corp.
Participants who became eligible to participate in this Plan shall receive credit under this Plan for all service credited under the DuPont 401(k) Plan as of December 31, 2015.
Amounts credited to a Participants Profit Sharing Contribution Account in the DuPont 401(k) Plan that were transferred to this Plan:
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Amounts transferred to this Plan attributable to company contributions under the Coastal Training Technologies Corp. 401(k) Plan (the Coastal Plan) shall continue to vest according to the vesting schedule applicable to such amounts under the Coastal Plan as of December 31, 2009 (20% after 2 years of service, 40% after 3 years, 60% after 4 years, 80% after 5 years, and full vesting upon completion of 6 years of service).
Belco Technologies Corporation.
Amounts credited to a Participants Company Contributions or pre-2008 Matching Accounts in the Belco Technologies Corporation Savings and Investment Plan that were transferred to this Plan:
Participants who became eligible to participate in this Plan, shall receive credit under this Plan for all service credited under the MECS 401(k) Plan as of December 31, 2015.
Amounts credited to a Participants Profit Sharing Contribution Account in the MECS, Inc. 401(k) Plan that were transferred to this Plan as part of the January 1, 2016 merger:
DuPont Electronics Microcircuits Industries, LTD
With respect to assets related to the DuPont Puerto Rico Savings and Investment Plan Non-Puerto Rico Residents, amounts credited to a Participants account as non-elective employer contributions are eligible for withdrawal at age 59 1 / 2 , and amounts credited as matching employer contributions are eligible for hardship withdrawal.
Except as otherwise specifically described in this Exhibit, amounts transferred as described in this Exhibit as pre-tax employee contributions, after-tax contributions, safe harbor matching contributions or non-safe harbor matching contributions, or non-elective company contributions (corresponding to Retirement Savings Contributions) shall be subject to the rules applicable to corresponding account types under this Plan.
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Management Deferred Compensation Plan
(Effective June 1, 2019)
PURPOSE & SPIN-OFF
Section 1.01 Purpose . DuPont de Nemours, Inc. (f/k/a DowDuPont Inc. (the Company )) desires to provide certain of its employees with an opportunity to accumulate additional retirement savings through voluntary compensation deferral contributions to a plan intended to constitute a non-qualified deferred compensation plan which, in accordance with Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement Income Security Act of 1974, as amended ( ERISA ), is unfunded and maintained by the Company primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees. The Company intends that a participants compensation deferrals, and the earnings thereon, will not be subject to federal income tax until such amounts are paid or made available to the participant.
Section 1.02 Spin-Off . Effective as of the Effective Date, the Company distributed its interest in Corteva, Inc. ( Corteva ) to the Companys shareholders and agreed to assume elections and deferrals made under Cortevas Management Deferred Compensation Plan (the Corteva MDCP ) with respect to calendar years through 2019 by certain participants therein (the Effective Date Participants ), all as more fully described in that certain Employee Matters Agreement dated March 31, 2019 by and among the Company, Corteva and The Dow Chemical Company (as it may be amended from time to time). This Plan document governs such elections and deferrals, which notwithstanding anything herein to the contrary shall remain subject to the terms and conditions that governed them under the Corteva MDCP, and also provides for participation in the Plan in respect of 2019 by Eligible Employees who first become Eligible Employees during 2019 on or after the Effective Date.
Section 2.01 Account means each account established on the books of account of the Employer to reflect the balance of Plan benefits attributable to a Participant. An Account shall be credited or debited, as applicable, with Deferral Contributions, Credited Investment Return and Dividend Equivalent Units, and any payments made by the Employer to the Participant or the Participants Beneficiary pursuant to this Plan. A Participants Account shall be divided into Directed Investment Subaccounts, with respect to which he/she shall be permitted to make Deemed Investment Elections, and Stock Unit Subaccounts, with respect to which he/she shall not be permitted to make Deemed Investment Elections.
Section 2.02 Active Participant means a Participant on whose behalf a current Deferral Election is in effect.
Section 2.03 Administrator means the Company.
Section 2.04 Affiliate means any corporation, organization or entity which is under common control with the Company or which is otherwise required to be aggregated with the Company pursuant to paragraphs (b), (c), (m), or (o) of Section 414 of the Code.
Section 2.05 Base Salary means the basic pay from the Employer (excluding LTI Awards and STI Awards, distributions from nonqualified deferred compensation plans, commissions, overtime, severance, fringe benefits, stock options and other equity awards, relocation expenses, incentive payments, non-monetary awards, automobile and other allowances (whether or not such allowances are included in the Employees gross income) and other non-regular forms of compensation paid to a Participant for employment services rendered). Base Salary shall be calculated before reduction for compensation voluntarily deferred or contributed by the Participant pursuant to all qualified or nonqualified plans of any Employer and shall be calculated to include amounts not otherwise included in the Participants gross income under Code Sections 125, 132, 402(e)(3), 402(h), or 403(b) pursuant to plans or arrangements established by any Employer; provided, however, that all such amounts will be included in Base Salary only to the extent that had there been no such plan, the amount would have been payable in cash to the Employee. Notwithstanding anything in this Plan to the contrary, Base Salary shall not include any amount paid pursuant to a long-term disability plan or pursuant to a long-term disability insurance policy.
Section 2.06 Base Salary Deferral Eligible Employee means any U.S.-based employee of the Employer who is designated from time to time by the Employer as eligible to defer the payment of Base Salary in accordance with Article 4 hereof.
Section 2.07 Beneficiary means the person or persons designated as such pursuant to Article 7 hereof.
Section 2.08 Change of Control means an objectively determined event that occurs with respect to the Company or the Employer for whom the Participant renders services and which constitutes both a Change in Control for purposes of the Equity and Incentive Plan and change in the ownership or effective control of the Company or Employer, as applicable, or in the ownership of a substantial portion of the Companys or Employers, as applicable, assets for purposes of Code Section 409A.
Section 2.09 Changed Personal Circumstances means an event or series of events beyond the control of the Participant which were unforeseeable at the time a Deferral Election was made which will result in a severe financial hardship for the Participant absent a cancellation of the Deferral Election at issue. A financial hardship shall be deemed severe if the amount involved equals or exceeds the annual Deferral otherwise resulting from the Deferral Election at issue. Whether a Participant has experienced Changed Personal Circumstances shall be determined on a facts-and-circumstances basis in the sole discretion of the Administrator.
Section 2.10 Code means the Internal Revenue Code of 1986, as amended, and the regulations and rulings issued thereunder.
Section 2.11 Common Stock Unit means a notional unit representing one share of common stock of the Company.
Section 2.12 Credited Investment Return means the hypothetical gain or loss credited to a Participants Directed Investment Subaccounts pursuant to Article 5 hereof.
Section 2.13 Deemed Investment Election means the selection by a Participant, pursuant to Article 5 hereof, of Investment Options in which his/her Directed Investment Subaccounts shall be deemed invested.
Section 2.14 Deferral Contributions means the elective contributions made to the Plan by a Participant pursuant to Article 4 hereof.
Section 2.15 Deferral Election means an election, pursuant to Article 4 hereof, to defer receipt of Base Salary or STI Awards, or the settlement of LTI Awards. Deferral Elections shall be made in accordance with the procedures established by the Administrator for that purpose. A Deferral Election may be cancelled due to an unforeseeable emergency as defined in Treasury Regulation Section 1.409A-3(i)(3) or a hardship distribution pursuant to Section 1.401(k)-1(d)(3). The Deferral Election must be cancelled, not merely postponed or otherwise delayed. Any later Deferral Election will be subject to the provisions of Article 4 of this Plan governing Deferral Elections.
Section 2.16 Directed Investment Subaccount means that portion of a Participants Account to which a Participants Deferral Contributions of Base Salary and STI Awards, and Credited Investment Return and Dividend Equivalent Units attributable thereto, will be allocated and with respect to which he/she may make Deemed Investment Elections in accordance with Article 5 hereof. A Participant may maintain no more than five (5) Directed Investment Subaccounts under this Plan.
Section 2.17 Dividend Equivalent Units means additional Common Stock Units credited to a Participants Account pursuant to Section 5.05 .
Section 2.18 Dividend Payment Date means each date on which the Company pays a dividend on its common stock.
Section 2.19 Effective Date means June 1, 2019.
Section 2.20 Eligible Employee means any Base Salary Deferral Eligible Employee, STI Deferral Eligible Employee or LTI Deferral Eligible Employee.
Section 2.21 Employer means the Company and any Affiliate which, with the consent of the Company, adopts this Plan.
Section 2.22 Equity and Incentive Plan means the Companys 2019 Omnibus Incentive Plan exclusive of Annex B thereto.
Section 2.23 Form of Payment means either (i) a lump sum or (ii) annual installments (for up to fifteen (15) years). Annual installments are available only in connection with a Separation from Service or Change of Control. In the event of a Participants death, his/her remaining Account balance will be distributable in a single lump sum.
Section 2.24 Identification Date means each December 31.
Section 2.25 Investment Options means one or more alternatives designated from time to time, pursuant to Article 5 hereof, for purposes of crediting earnings or losses to Directed Investment Subaccounts.
Section 2.26 LTI Award means an award of RSUs or PSUs.
Section 2.27 LTI Deferral Eligible Employee means any U.S.-based employee of the Employer who is designated from time to time by the Company as eligible to defer the settlement of an LTI Award in accordance with Article 4 hereof.
Section 2.28 Participant means any Eligible Employee who has elected to participate in the Plan by completing the appropriate forms (including electronic forms) prescribed by the Administrator for that purpose.
Section 2.29 Payment Event means any of the following:
(a) Separation from Service
(b) The earlier of (i) Separation from Service or (ii) a specified date
(c) Change of Control
Notwithstanding the foregoing, (i) in the event of a Participants death, his/her remaining Account balance will automatically be distributed to his/her Beneficiary in a single lump sum within ninety days (90) thereafter and (ii) a Participant may request that all or a portion of his/her Account be distributed on account of an unforeseeable emergency as defined in Treasury Regulation Section 1.409A-3(i)(3) and subject to the restrictions on such distributions set forth therein.
Section 2.30 Plan means this DuPont Management Deferred Compensation Plan.
Section 2.31 Plan Year means the twelve (12) month period beginning January 1 and ending December 31.
Section 2.32 PSU means a performance-based restricted stock unit granted under the Equity and Incentive Plan.
Section 2.33 Qualified Leave means military leave, sick leave, or other bona fide leave of absence if the period of such leave does not exceed six months, or if longer, so long as the individual retains a right to reemployment with the service recipient under an applicable statute or by contract. A leave of absence constitutes a bona fide leave of absence only if there is a reasonable expectation that the employee will return to perform services for the employer. If the period of leave exceeds six months and the individual does not retain a right to reemployment under an applicable statute or by contract, the employment relationship is deemed to terminate on the first date immediately following such six-month period.
Section 2.34 RSU means a time-vested restricted stock unit granted under the Equity and Incentive Plan.
Section 2.35 Section 16 Person means any employee who is subject to the reporting requirements of Section 16(a) or the liability provisions of Section 16(b) of the Securities and Exchange Act of 1934, as amended.
Section 2.36 Separation from Service means a separation from service as defined in Treasury Regulation Section 1.409A-1(h).
Section 2.37 Similar Plan means a plan required to be aggregated with this Plan under Treasury Regulation Section 1.409A-1(c)(2)(i)(A).
Section 2.38 Specified Employee means an officer of the Employer at any time during the 12-month period ending on an Identification Date. If a Participant is a Specified Employee as of an Identification Date, such Participant is treated as a Specified Employee for the 12-month period beginning on the first day of the first month following the Identification Date.
Section 2.39 STI Award means a cash-based award under the Equity and Incentive Plan or Pioneer Hi-Bred International, Inc. Annual Reward Plan.
Section 2.40 STI Deferral Eligible Employee means any U.S.-based employee of the Employer who is designated from time to time by the Employer as eligible to defer the payment of an STI Award in accordance with Article 4 hereof.
Section 2.41 Stock Unit Subaccount means that portion of a Participants Account to which a Participants Deferral Contributions of LTI Awards, and Dividend Equivalent Units attributable thereto, will be allocated and with respect to which he/she may not make Deemed Investment Elections in accordance with Article 5 hereof. A Participant may maintain no more than five (5) Stock Unit Subaccounts under this Plan.
Section 2.42 Triggering Event means, with respect to a Distribution Subaccount, the Payment Event elected by a Participant pursuant to Section 4.03 .
Section 3.01 Procedure For and Effect of Admission . Each Eligible Employee who desires to participate in this Plan shall complete such forms (including electronic forms) and provide such data as is reasonably required by the Administrator. By becoming a Participant, an Eligible Employee shall be deemed to have consented to the provisions of this Plan and all amendments hereto.
Section 3.02 Cessation of Participation . A Participant shall cease to be an Active Participant on the earlier of:
(a) The date on which the Plan terminates;
(b) The date on which he/she ceases to be an Eligible Employee; or
(c) The date on which he/she is permitted by the Administrator to terminate Deferral Contributions to the Plan.
A former Active Participant will be considered a Participant for all purposes, except with respect to the right to make contributions, as long as he/she retains an Account.
Section 4.01 Annual Deferral Elections
(a) Deferral Contributions of Base Salary . A Base Salary Deferral Eligible Employee may elect to defer a percentage, not to exceed 60%, of his/her Base Salary payable with respect to services performed during the Plan Year; provided, however, that such Deferral Election shall be made (i) during the open enrollment period established by the Administrator for that purpose and (ii) on or before the last day of the calendar year preceding the first day of the Plan Year to which such Deferral Election relates. A Base Salary Deferral Eligible Employee may elect to cancel a Deferral Election made pursuant to this section on account of Changed Personal Circumstances provided such election is made on or before the last day of the calendar year preceding the first day of the Plan Year to which such Deferral Election relates. Any election made pursuant to this section shall remain in effect unless and until changed by the Participant; provided, however, that with respect to Base Salary earned in any future taxable year, such election becomes irrevocable on December 31 of the preceding calendar year.
(b) Deferral Contributions of STI Awards . An STI Deferral Eligible Employee may elect to defer a percentage, not to exceed 60%, of an STI Award; provided, however, that (i) such STI Deferral Eligible Employee performs services continuously from the later of the beginning of the performance period or the date the performance criteria are established through the date the election to defer is made and (ii) such Deferral Election is made (A) during the open enrollment period established by the Administrator for that purpose and (B) on or before the date that is six months before the end of the performance period over which the STI Award shall be determined. An STI Deferral Eligible Employee may elect to cancel a Deferral Election made pursuant to this section on account of Changed Personal Circumstances provided such election is made on or before the date that is six months before the end of the performance period over which the STI Award shall be determined. Any election made pursuant to this section shall remain in effect unless and until changed by the Participant; provided, however, that with respect to any STI Award earned during any future taxable year, such election becomes irrevocable on the date that is six months before the end of the performance period over which the STI Award shall be determined.
(c) Deferral Contributions of LTI Awards .
(i) RSUs . An LTI Deferral Eligible Employee may elect to defer the settlement of RSUs granted during a Plan Year; provided, however, that such Deferral Election shall be made (i) during the open enrollment period established by the Administrator for that purpose and (ii) on or before the last day of the calendar year preceding the first day of the Plan Year to which such Deferral Election relates. An LTI Deferral Eligible Employee may elect to cancel a Deferral Election made pursuant to this section on account of Changed Personal Circumstances provided such election is made on or before the last day of the calendar year preceding the first day of the Plan Year to which such Deferral Election relates. Notwithstanding the foregoing, an LTI Deferral Eligible Employee may elect to defer the settlement of RSUs that are subject to a vesting period of at least 12 months, provided such election is made on or before the thirtieth (30th) day after the LTI Deferral Eligible Employee is granted the RSUs and further provided that the election is made at least 12 months in advance of the earliest date on which the vesting period could expire. In the event that a timely election to defer the settlement of RSUs may not be made pursuant to either of the foregoing sentences of this paragraph, an LTI Deferral Eligible Employee may elect to defer the settlement of RSUs provided such election is made at least 12 months in advance of the date on which the restrictions on such RSUs lapse and further provided that such RSUs may not be settled until the fifth anniversary of the date that the restrictions on the RSUs lapsed. Notwithstanding the foregoing to the contrary, an LTI Deferral Eligible Employee shall not be permitted to elect to defer the settlement of RSUs unless such election complies with Code Section 409A. If a Participant elects to defer settlement of RSUs, any restrictions on transferability and/or events of forfeiture applicable to such RSUs under the Equity and Incentive Plan or the Award Terms (as defined under the Equity and Incentive Plan) shall continue in full force and effect. Upon expiration of all restrictions on transferability, the appropriate number of Common Stock Units of the Company, including Dividend Equivalent Units attributable thereto, shall be credited to the Participants applicable Stock Unit Subaccount. Any election made pursuant to this Section shall remain in effect unless and until changed by the Participant; provided, however, that with respect to RSUs granted in any future taxable year, such election becomes irrevocable on the last day of the calendar year preceding the Plan Year during which the RSUs are granted or, if later, on the thirtieth (30th) day after the LTI Deferral Eligible Employee is granted the RSUs and at least 12 months in advance of the earliest date on which the vesting period could expire.
(ii) PSUs . An LTI Deferral Eligible Employee may elect to defer the settlement of PSUs provided, however, that (i) such LTI Deferral Eligible Employee performs services continuously from the later of the beginning of the performance period or the date the performance criteria are established through the date the election to defer is made and (ii) such Deferral Election is made (A) during the open enrollment period established by the Administrator for that purpose and (B) on or before the date that is six months before the end of the performance period over which the PSU settlement shall be determined. An LTI Deferral Eligible Employee may elect to cancel a Deferral Election made pursuant to this section on account of Changed Personal Circumstances provided such election is made on or before the date that is six months before the end of the
performance period over which the PSU settlement shall be determined. Any election made pursuant to this Section shall remain in effect unless and until changed by the Participant; provided, however, that with respect to any PSUs earned during any future taxable year, such election becomes irrevocable on the date that is six months before the end of the performance period over which the PSU settlement shall be determined.
Section 4.02 Initial Distribution Elections .
(a) Directed Investment Subaccounts . A Participant may elect to establish up to five (5) Directed Investment Subaccounts under his/her Account. At the time a Participant establishes a Directed Investment Subaccount, he/she must also elect a Payment Event and Form of Payment with respect to such subaccount. When making a Deferral Election with respect to Base Salary or STI Awards, a Participant shall designate: (i) to which Directed Investment Subaccounts amounts deferred pursuant to that election, and Credited Investment Return and Dividend Equivalent Units attributable thereto, shall be allocated; and (ii) how those amounts shall be allocated among the designated Directed Investment Subaccounts. If a Participant fails to establish a Directed Investment Subaccount or fails to designate the Directed Investment Subaccount(s) to which his/her Deferral Contributions of Base Salary or STI Awards should be allocated, such Deferral Contributions shall be allocated to the default Directed Investment Subaccount established by the Administrator. The Payment Event with respect to such default Directed Investment Subaccount shall be Separation of Service and the Form of Payment shall be a lump sum.
(b) Stock Unit Subaccount . A Participant may elect to establish up to five (5) Stock Unit Subaccounts under his/her Account. At the time a Participant establishes a Stock Unit Subaccount, he/she must also elect a Payment Event and Form of Payment with respect to such subaccount. When making a Deferral Election with respect to LTI Awards, a Participant shall designate: (i) to which Stock Unit Subaccounts amounts deferred pursuant to that election, and Dividend Equivalent Units attributable thereto, shall be allocated; and (ii) how those amounts shall be allocated among the designated Stock Unit Subaccounts. If a Participant fails to establish a Stock Unit Subaccount or fails to designate the Stock Unit Subaccount(s) to which his/her Deferral Contributions of LTI Awards should be allocated, such Deferral Contributions shall be allocated to the default Stock Unit Subaccount established by the Administrator. The Payment Event with respect to such default Stock Unit Subaccount shall be Separation of Service and the Form of Payment shall be a lump sum.
Section 4.03 Subsequent Distribution Elections . A Participant may subsequently elect to change the Payment Event or Form of Payment elected with respect to one or more Directed Investment Subaccounts or Stock Unit Subaccounts in accordance with procedures established by the Administrator for such purpose; provided, however, that: (i) such subsequent election may not take effect until at least 12 months after the date on which it is made; (ii) the payment with respect to which such election is made must be deferred for a period of not less than five (5) years from the date such payment would otherwise have been made; and (iii) any subsequent election related to a payment at a specified time or in accordance with a fixed schedule may not be made less than 12 months prior to the date of the first scheduled payment.
INVESTMENT OF ACCOUNTS
Section 5.01 Investment Options . The Administrator shall designate from time to time one or more Investment Options in which a Participants Directed Investment Subaccounts may be deemed invested. The Administrator shall have the sole discretion to determine the number of Investment Options to be designated hereunder and the nature of the Investment Options and may change or eliminate any of the Investment Options from time to time. In the event of such change or elimination, the Administrator shall give each Participant timely notice and opportunity to make a new election. No such change or elimination of any Investment Options shall be considered to be an amendment to the Plan pursuant to Section 9.01 .
Section 5.02 Making Deemed Investment Elections . A Participant shall select one or more Investment Options in which his/her Directed Investment Subaccounts shall be deemed invested. Separate Deemed Investment Elections may be made with respect to each Directed Investment Subaccount. Any such election shall be made by filing with the Administrator the appropriate form prescribed for that purpose. The Administrator shall establish procedures relating to Deemed Investment Elections. Deemed Investment Elections shall remain in effect until changed by a Participant pursuant to Section 5.03 .
Section 5.03 Changes to Deemed Investment Elections . A Participant may request a change to his/her Deemed Investment Elections for future amounts allocated to his/her Directed Investment Subaccount and amounts already allocated to his/her Directed Investment Subaccount. Any such change shall be made by filing with the Administrator the appropriate form (including electronic forms) prescribed by the Administrator for that purpose. The Administrator shall establish procedures relating to changes in Deemed Investment Elections, which may include limiting the percentage, amount and frequency of such changes and specifying the effective date for any such changes.
Section 5.04 Crediting or Debiting of Investment Experience . Each Participants Directed Investment Subaccount shall be credited or debited, as applicable, daily with the amount which the Participants Directed Investment Subaccount would have earned or lost, as applicable, if the amounts credited to such account had, in fact, been invested in accordance with the Participants Deemed Investment Elections.
Section 5.05 Dividend Equivalent Units . If dividends on the Companys common stock are paid during any period that a Participant holds Common Stock Units in one or more of his/her Directed Investment Subaccounts or Stock Unit Subaccounts, as of the applicable Dividend Payment Date, a number of additional Common Stock Units shall be credited to such Directed Investment Subaccount(s) or Stock Unit Subaccount(s), as applicable. The number of such additional Common Stock Units to be credited shall be determined by first multiplying: (a) the total number of Common Stock Units, including fractional units, standing to the Participants credit in such account on the day immediately preceding such Dividend Payment Date (including all Dividend Equivalent Units credited to such account on all previous Dividend Payment Dates); by (b) the per share dollar amount of the dividend paid on such Dividend Payment Date; and then (c) dividing the resulting amount by the closing price of one share of the Companys common stock on such Dividend Payment Date.
PAYMENT OF ACCOUNTS
Section 6.01 Payment in General . Upon the occurrence of a Triggering Event that is a Separation from Service or a Change of Control, the Employer shall, within 90 days thereafter, commence payment of the applicable Distribution Subaccount(s) to the Participant, or his/her Beneficiary, as applicable, in the Form of Payment elected by the Participant with respect thereto. Upon the occurrence of a Triggering Event that is a specified date or a fixed schedule of payments, the Employer shall commence payment of the applicable Subaccount to the Participant on such specified date or in accordance with such fixed schedule of payments. The amount of each payment made pursuant to this section shall be based upon the fair market value of the Participants Account as of the latest practicable date preceding the payment date and the number of remaining scheduled payments due.
Section 6.02 Specified Employees . Notwithstanding Section 6.01 , upon the occurrence of a Triggering Event that is a Separation from Service (other than on account of death), the Employer shall commence payment of the applicable Distribution Subaccount(s) to the Participant in the Form of Payment elected by the Participant with respect thereto on the later of: (1) the date that is six months and one day after such Triggering Event; or (2) the date on which such payment was otherwise scheduled to commence.
Section 6.03 Medium of Payments . Payments attributable to that portion of a Participants Directed Investment Subaccount which is deemed to be invested in Common Stock Units shall be paid in shares of the Companys common stock for each whole unit and cash for each fraction of a unit. Payments attributable to the remaining portion of a Participants Directed Investment Subaccount shall be paid in cash. Payments attributable to a Participants Stock Unit Subaccounts shall be delivered in shares of the Companys common stock for each whole unit and cash for each fraction of a unit.
Section 7.01 Right to Designate Beneficiary . The Participant will have the right, at any time, to designate any person or persons as Beneficiary (both primary and contingent) to whom payment under the Plan will be made in the event of the Participants death. The Beneficiary designation will be effective when it is submitted in writing or electronically to the Administrator during the Participants lifetime on a form prescribed by the Administrator.
Section 7.02 Cancellation/Revocation of Beneficiary Designation . The submission of a new Beneficiary designation will cancel all prior Beneficiary designations.
Section 7.03 Failure to Designate Beneficiary or Death of Beneficiary . If a Participant fails to designate a Beneficiary as provided above, or if every person designated as Beneficiary predeceases the Participant, then the Administrator will direct the distribution of the benefits to the Participants estate. If a primary Beneficiary dies after commencement the Participants death but prior to completion of benefits under this Plan, and no contingent Beneficiary has been designated by the Participant, any remaining payments will be paid to the Beneficiarys estate.
Section 8.01 Administrators Responsibilities . The Administrator is responsible for the day to day administration of the Plan. The Administrator may appoint other persons or entities to perform certain of its functions. Such appointment shall be made and accepted by the appointee in writing and shall be effective upon the written approval of the Company. The Administrator and any such appointee may employ advisors and other persons necessary or convenient to help him/her carry out his/her duties. The Administrator shall have the right to remove any such appointee from his/her position. Any person, group of persons or entity may serve in more than one capacity.
Section 8.02 Records and Accounts . All individual and group records relating to Participants and Beneficiaries, and all other records necessary for the proper operation of the Plan, shall be made available to the Employer and to each Participant and Beneficiary for examination during business hours except that a Participant or Beneficiary shall examine only such records as pertain exclusively to the examining Participant or Beneficiary and those records and documents relating to all Participants generally.
Section 8.03 Administrators Specific Powers and Duties . In addition to any powers, rights and duties set forth elsewhere in the Plan, the Administrator shall have the following powers and duties:
(a) to adopt such rules and regulations consistent with the provisions of the Plan;
(b) to enforce the Plan in accordance with its terms and any rules and regulations it establishes;
(c) to maintain records concerning the Plan sufficient to prepare reports, returns and other information required by the Plan or by law;
(d) to construe and interpret the Plan and to resolve all questions arising under the Plan;
(e) to direct the Employer to pay benefits under the Plan, and to give such other directions and instructions as may be necessary for the proper administration of the Plan;
(f) to engage assistants and professional advisors.
Section 8.04 Construction of the Plan . The Administrator shall have the sole and absolute discretion to interpret the Plan and shall resolve all questions arising in the administration, interpretation and application of the Plan. The Administrator shall correct any defect, reconcile any inconsistency, or supply any omission with respect to this Plan. All such corrections, reconciliations, interpretations and completions of Plan provisions shall be final and binding upon the parties.
Section 8.05 Employers Responsibility to Administrator . Each Employer shall furnish the Administrator such data and information as it may require. The records of the Employer shall be determinative of each Participants period of employment, termination of employment and the reason therefor, leave of absence, reemployment, years of service, personal data, and compensation reductions. Participants and their Beneficiaries shall furnish to the Administrator such evidence, data, or information, and execute such documents, as the Administrator requests.
Section 8.06 Engagement of Assistants and Advisers; Plan Expenses . The Administrator shall have the right to hire such professional assistants and consultants as it, in its sole discretion, deems necessary or advisable, including, but not limited to:
(a) investment managers and/or advisers;
(e) consultants; and
(f) clerical and office personnel.
Section 8.07 Liability . Neither the Administrator nor the Employer shall be liable to any person for any action taken or omitted in connection with the administration of this Plan unless attributable to its own fraud or willful misconduct; nor shall the Employer be liable to any person for such action unless attributable to fraud or willful misconduct on the part of a director, officer or employee of the Employer.
Section 8.08 Payment of Expenses . If directed by the Company, expenses of the Administrator incurred in the operation or administration of this Plan shall be charged against the Participants Accounts to which the expense relates. If an expense is applicable to more than one Participants Accounts, the expense shall be allocated among such Participants Accounts in a non-discriminatory manner as determined by the Company.
Section 8.09 Indemnity of Administrator . The Employer shall indemnify the Administrator (including any individual who is a member of a committee serving as the Administrator) or any individual who is a delegate of the Administrator against any and all claims, loss, damage, expense or liability arising from any action or failure to act, except when due to gross negligence or willful misconduct.
AMENDMENT OR TERMINATION
Section 9.01 Amendment . The Board of Directors of the Company, or its delegate, may amend the Plan at any time and from time to time and any amendment may have retroactive effect, including, without limitation, amendments to the amount of contributions; provided, however, that no amendment shall (i) reduce the value of a Participants Account or (ii) change the form or timing of payment of an amount contributed prior to the date of amendment.
Section 9.02 Termination . While the Plan is intended to be permanent, the Board of Directors of the Company, or its delegate, may at any time terminate or partially terminate the Plan, provided that upon such termination, except to the extent otherwise permitted under Code Section 409A, all Accounts will be distributed in accordance with the terms of the Plan as in effect on the date of termination. Written notice of such termination or partial termination, setting forth the date and terms thereof, shall be given to the Administrator.
Section 9.03 Change in Control . Notwithstanding the foregoing, following a Change in Control (as such term is defined in the Companys Equity and Incentive Plan) no amendment or termination referenced in Section 9.01 or 9.02 , respectively, may adversely affect any benefits accrued or deferrals made under the Plan prior to the adoption of the amendment or termination (including, without limitation, any terms, conditions or distribution alternatives applicable to such accrued benefits). In addition, for a period of two years following a Change in Control, the Plan shall not be terminated in whole or in part or be amended in any way that adversely affects or limits the terms and conditions of benefits as available pursuant to the Plan immediately prior to the Change in Control.
Section 10.01 Section 16 Person . With respect to Section 16 Persons, the Administrator may establish, in writing, such rules, regulations, policies or practices hereunder which it deems, in its sole discretion, to be necessary and appropriate.
Section 10.02 Claims Review . In any case in which a claim for Plan benefits of a Participant or Beneficiary is denied or modified, the Administrator shall furnish written notice to the claimant within 90 days (or within 180 days if additional information requested by the Administrator necessitates an extension of the 90-day period), which notice shall:
(a) State the specific reason or reasons for the denial or modification;
(b) Provide specific reference to pertinent Plan provisions on which the denial or modification is based;
(c) Provide a description of any additional material or information necessary for the Participant, his/her Beneficiary, or representative to perfect the claim and an explanation of why such material or information is necessary; and
(d) Explain the Plans claim review procedure as contained herein, including the claimants right to bring a civil action under Section 502(a) of ERISA following an adverse review determination.
In the event a claim for Plan benefits is denied or modified, if the Participant, his/her Beneficiary, or a representative of such Participant or Beneficiary desires to have such denial or modification reviewed, he/she must, within 60 days following receipt of the notice of such denial or modification, submit a written request for review by the Administrator of its initial decision. In connection with such request, the Participant, his/her Beneficiary, or the representative of such Participant or Beneficiary may review any pertinent documents upon which such denial or modification was based and may submit issues and comments in writing. Within 60 days following such request for review the Administrator shall, after providing a full and fair review, render its final decision in writing to the Participant, his/her beneficiary or the representative of such Participant or Beneficiary stating specific reasons for such decision, making specific references to pertinent Plan provisions upon which the decision is based and stating that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claim. If special circumstances require an extension of such 60-day period, the Administrators decision shall be rendered as soon as possible, but not later than 120 days after receipt of the request for review. If an extension of time for review is required, written notice of the extension shall be furnished to the Participant, Beneficiary, or the representative of such Participant or Beneficiary prior to the commencement of the extension period.
Section 10.03 Limitation of Participants Rights . Nothing in this Plan shall be construed as conferring upon any Participant any right to continue in the employment of an Employer, nor shall it interfere with the rights of an Employer to terminate the employment of any Participant and/or take any personnel action affecting any Participant without regard to the effect which such action may have upon such Participant as a recipient or prospective recipient of benefits under the Plan.
Section 10.04 Obligations to Employer . If a Participant becomes entitled to a distribution of benefits under the Plan, and if at such time the Participant has outstanding any debt, obligation, or other liability representing an amount owing to an Employer, then such Employer may offset such amount owed to it against the amount of benefits otherwise distributable. Such determination shall be made by the Administrator.
Section 10.05 Nonalienation of Benefits . Except as expressly provided herein, no Participant or Beneficiary shall have the power or right to transfer (otherwise than by will or the laws of descent and distribution), alienate, or otherwise encumber the Participants interest under the Plan. Any such attempted assignment shall be considered null and void. The interest of any Participant or any beneficiary receiving payments hereunder shall not be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by creditors of the Participant or the Participants Beneficiary. An Employers obligations under this Plan are not assignable or transferable except to (a) a business entity which acquires all or substantially all of an Employers assets or (b) any business entity into which an Employer may be merged or consolidated.
Section 10.06 Unfunded Status of Plan . The Plan is intended to constitute an unfunded plan of deferred compensation for Participants for tax and for purposes of Title I of ERISA. The Plan constitutes a mere promise by the Employer to make benefit payments in the future. Each Employer shall not be liable for any benefit payments to any other Employers Eligible Employees who are Participant is this Plan. Benefits payable hereunder shall be payable out of the general assets of the applicable Employer, and no segregation of any assets whatsoever for such benefits shall be made. With respect to any payments not yet made to a Participant, nothing contained herein shall give any such Participant any rights that are greater than those of a general creditor of his/her Employer.
Section 10.07 Severability . If any provision of this Plan is held unenforceable, the remainder of the Plan shall continue in full force and effect without regard to such unenforceable provision and shall be applied as though the unenforceable provision were not contained in the Plan.
Section 10.08 Gender, Singular & Plural . All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, or neuter, as the identity of the person or persons may require. As the context may require, the singular may be read as the plural and the plural as the singular.
Section 10.09 Notice . Any notice or filing required or permitted to be given to the Administrator under the Plan shall be sufficient if in writing and hand delivered, or sent by registered or certified mail, to the Administrator or to such representatives as the Administrator may designate from time to time. Such notice shall be deemed given as to the date of delivery or, if delivery is made by mail, as of the date shown on the postmark on the receipt for registration or certification.
Section 10.10 Governing Law . The Plan shall be governed and construed under the laws of the State of Delaware to the extent not preempted by Federal law which shall otherwise control.
Section 10.11 Binding Terms . The provisions of the Plan shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, executors, administrators and successors.
Section 10.12 Headings . All headings preceding the text of the several Sections hereof are inserted solely for reference and shall not constitute a part of this Plan, nor affect its meaning, construction or effect.
Section 10.13 Representations . The Employer does not represent or guarantee that any particular federal or state income, payroll, personal property or other tax consequence will result from participation in the Plan. A Participant should consult with professional tax advisors to determine the tax consequences of his/her participation. In addition, the Company does not represent or guarantee positive Credited Investment Return and shall not be required to restore any negative Credited Investment Return.
Section 10.14 Compliance with Section 409A . The Company intends that this Plan provide for the deferral of compensation as permitted under Code Section 409A. If any provision of this Plan is determined to be inconsistent with such intent, it shall be severable and the balance of this Plan shall remain in full force and effect.
STOCK ACCUMULATION AND DEFERRED
COMPENSATION PLAN FOR DIRECTORS
(Effective June 1, 2019)
The purpose of the DuPont Stock Accumulation and Deferred Compensation Plan for Directors (the Plan) is to permit non-employee members of the Board of Directors (the Board) of DuPont de Nemours, Inc., f/k/a DowDuPont Inc. (the Company, and such persons, Directors) to defer the payment of all or a specified part of their compensation for services performed as Directors.
The provisions of this Plan shall apply to amounts deferred on or after the Effective Date (or, with respect to Pre-Spin Participants (as defined below), in taxable years beginning after December 31, 2008). Notwithstanding the foregoing, Section 12 of this Plan shall, to the extent provided therein, apply to amounts deferred in taxable years before 2009, provided that such amounts were not earned and vested before January 1, 2005. For purposes of this Section 1, a right to an amount is earned and vested only if the amount is not subject to a substantial risk of forfeiture for purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the Code), and the regulations and rulings issued thereunder (collectively, Code Section 409A).
Effective June 1, 2019 (the Effective Date), the Company distributed its interest in Corteva, Inc. (Corteva) to the Companys shareholders and agreed to assume elections and deferrals made under the E. I. du Pont de Nemours and Company Stock Accumulation and Deferred Compensation Plan for Directors, as amended August 31, 2017 (the Corteva Plan) with respect to participants therein who were nonemployee directors of the Company immediately prior to the Effective Date (the Pre-Spin Participants and, together with the other Directors from time to time, the Participants), all as more fully described in that certain Employee Matters Agreement effective April 1, 2019 by and among the Company, Corteva and The Dow Chemical Company (as it may be amended from time to time). In addition to the purpose set forth in Section 1, this Plan document governs the elections and deferrals of Pre-Spin Participants, which notwithstanding anything herein to the contrary shall remain subject to the terms and conditions that governed them under the Corteva Plan.
Members of the Board who are not employees of the Company or any of its subsidiaries or affiliates shall be eligible under this Plan to defer compensation for services performed as Directors.
The Plan shall be administered by the People and Compensation Committee of the Board (the Committee). The decision of the Committee with respect to any questions arising as to the interpretation of this Plan, including the severability of any and all of the provisions thereof, shall be final, conclusive and binding. The Board reserves the right to modify the Plan from time to time, or to terminate the Plan entirely, provided, however, that (a) no modification of the Plan shall operate to annul an election already in effect for the current calendar year or any preceding calendar year; (b) the foregoing shall not preclude any amendment necessary or desirable to conform to changes in applicable law, including, but not limited to, changes in the Code; and (c) upon termination of the Plan, except to the extent otherwise permitted under Code Section 409A, all balances will be distributed in accordance with the terms of the Plan as in effect on the date of termination.
The Committee is authorized, subject to the provisions of the Plan, from time to time to establish such rules and regulations as it deems appropriate for the proper administration of the Plan, and to make such determinations and take such steps in connection therewith as it deems necessary or advisable.
It is the Companys intent that the Plan comply in all respects with Rule 16b-3 of the Securities and Exchange Act of 1934, as amended (the Exchange Act) and any regulations promulgated thereunder. If any provision of this Plan is found not to be in compliance with such rule and regulations, the provision shall be deemed null and void, and the remaining provisions of the Plan shall continue in full force and effect. All transactions under this Plan shall be executed in accordance with the requirements of Section 16 of the Exchange Act and the regulations promulgated thereunder.
The Board may, in its sole discretion, modify the terms and conditions of this Plan in response to and consistent with any changes in applicable law, rule or regulation.
On or before December 31 of any calendar year, a Director may elect to defer, in the form of cash or stock units, the payment of all or a specified part of all fees payable to the Director for services as a Director during the following calendar year.
To the extent permitted under Code Section 409A, any person who shall become a Director during any calendar year, and who was not a Director on the preceding December 31, may elect, within thirty days after election to the Board, to defer in the same manner the receipt of the payment of all or a specified part of fees not yet earned for the remainder of that calendar year in the form of cash or stock units.
At the time a Director elects to defer his/her fees for a calendar year, he/she must also elect:
Amounts deferred to a specified year shall be payable only in a lump sum during the specified calendar year. If amounts are payable in equal annual installments, the first annual installment shall be made in the calendar year specified pursuant to clause (d) above with remaining installments paid in successive calendar years until all installments have been paid.
Elections shall be made by written notice delivered to the Secretary of the Committee. All such elections as to deferral and form of payment are irrevocable.
Fees deferred in the form of cash shall be held in the general funds of the Company and shall be credited to an account in the name of the Participant. Deferred cash will bear interest at a rate corresponding to the average 30-year Treasury securities rate applicable for the quarter (or at such other rate as may be specified by the Committee from time to time). Interest will be compounded quarterly and will also be deferred. If the rate changes, the new rate will apply to all deferred cash amounts beginning with the following quarter. Fees deferred in the form of stock units shall be allocated to each Participants account based on the closing price of the Companys common stock as reported on the Composite Tape of the New York Stock Exchange (Stock Price) on the date the fees would otherwise have been paid. The Company shall not be required to reserve or otherwise set aside shares of common stock for the payment of its obligations hereunder, but shall make available as and when required a sufficient number of shares of common stock to meet the needs of the Plan. An amount equal to any cash dividends (or the fair market value of dividends paid in property other than dividends payable in common stock of the Company) payable on the number of shares represented by the number of stock units in each Participants account will be allocated to each Participants account in the form of stock units based upon the Stock Price on the dividend payment date. Any stock dividends payable on such number of shares will be allocated in the form of stock units. If adjustments are made to outstanding shares of common stock as a result of split-ups, recapitalizations, mergers, consolidations and the like, an appropriate adjustment shall also be made in the number of stock units in a Participants account. Stock units shall not entitle any person to rights of a stockholder unless and until shares of Company common stock have been issued to that person with respect to stock units as provided in Section 8.
The aggregate amount of deferred fees, together with interest and dividend equivalents accrued thereon, shall be paid in accordance with the time and form of payment elections made by the Director under Section 6, and, with respect to Pre-Spin Participants, in accordance with the time and form of payment elections made by the Pre-Spin Participant under the Corteva Plan. Amounts credited to a Participants account in cash shall be paid in cash and amounts credited in stock units shall be paid in one share of common stock of the Company for each stock unit, except that a cash payment will be made with any final installment for any fraction of a stock unit remaining in the Participants account. Such fractional share shall be valued at the closing Stock Price on the date of settlement. Restricted stock units payable in cash, and the dividend equivalents associated with such deferred units, shall be paid in cash, each unit to equal the value of one share of Company common stock based on the average of the high and low prices of Company common stock as reported on the Composite Tape of the New York Stock Exchange as of the effective date of payment.
A Participant may file with the Secretary of the Committee a written designation of a beneficiary for his or her account under the Plan on such form as may be prescribed by the Committee, and may, from time to time, amend or revoke such designation. If a Participant should die before all deferred amounts credited to the Participants account have been distributed, the balance of any deferred fees and interest and dividend equivalents then in the Participants account shall be paid to the Participants designated beneficiary upon the Participants death. If the Participant did not designate a beneficiary, or in the event that the beneficiary designated by the Participant shall have predeceased the Participant, the balance in the Participants account shall be paid promptly to the Participants estate.
During a Participants lifetime, the right to any deferred fees, including interest and dividend equivalents thereon, shall not be transferable or assignable, except as may otherwise be provided in the Plan or in rules established by the Committee.
The Plan shall be governed and construed under the laws of the State of Delaware to the extent not preempted by Federal law, which shall otherwise control.
Notwithstanding anything in this Plan to the contrary, this Section 12 shall, to the extent provided herein, apply to amounts deferred in taxable years beginning before 2009, provided that such amounts were not earned and vested before January 1, 2005. For purposes of this Section 12, a right to an amount is earned and vested only if the amount is not subject to a substantial risk of forfeiture for purposes of Code Section 409A.
To the extent that an amount is payable in connection with a Participants retirement or other separation from service as a Director, no amounts shall be paid hereunder on account thereof unless such retirement or separation from service constitutes a separation from service within the meaning of Code Section 409A.
To the extent that an amount is payable promptly at the beginning of a calendar year, whether as a result of a Participants deferral election or the terms of a prior plan document, such amount shall be paid no later than the last day of that calendar year.
The Company intends that the Plan provide for the deferral of compensation as permitted under Code Section 409A. To the extent subject thereto, the terms of the Plan shall be interpreted as necessary to comply with the requirements of Code Section 409A. To the extent necessary to avoid the imposition of taxes and/or penalties under Code Section 409A, a separation from service as used herein shall mean a separation from service within the meaning of Code Section 409A. Each amount to be paid or benefit to be provided under this Plan shall be construed as a separate identified payment for purposes of Section 409A. In the event that any provision of the Plan is inconsistent with Code Section 409A, the applicable provisions of Code Section 409A shall be deemed to automatically supersede such inconsistent provision and the Plan shall be administered to comply with Code Section 409A.
OPINION OF COUNSEL
May 31, 2019
974 Centre Road
Wilmington, Delaware 19805
Ladies and Gentlemen:
Reference is hereby made to the Registration Statement on Form S-8 being filed by DowDuPont Inc. (the Company) with the Securities and Exchange Commission, relating to the registration of 8 million shares of common stock, par value $0.01 per share (the Common Stock), of the Company, which are issuable pursuant to the DuPont Retirement Savings Plan, the DuPont Management Deferred Compensation Plan and the DuPont Stock Accumulation and Deferred Compensation Plan for Directors.
In rendering the opinions expressed below, I or a member of my staff have examined and relied upon: (a) the Amended and Restated Certificate of Incorporation of the Company; (b) the Third Amended and Restated Bylaws of the Company; (c) the Registration Statement on Form S-8; (d) certain resolutions of the Board of Directors of the Company; and (e) such other documents, corporate records and instruments as I have deemed necessary or appropriate to form a basis for the opinions hereinafter expressed.
In connection with this opinion, I have assumed the genuineness of all signatures on all documents examined by me and the authenticity of all documents submitted to me as originals and the conformity to the originals of all documents submitted to me as copies.
Based on the foregoing, and subject to the assumptions, limitations and qualifications herein set forth, it is my opinion that:
I do not express any opinion with respect to the law of any jurisdiction other than Delaware corporate law (including, to the extent applicable, the Delaware constitution and judicial decisions) and I do not express any opinion as to the effect of any other laws on the opinion herein stated. This opinion is given as of the date hereof. I assume no obligation to update or supplement this opinion to reflect any facts or circumstances which may hereafter occur or come to my attention or any changes in law which may hereafter occur.
I hereby consent to the filing of this opinion as an exhibit to the Companys Registration Statement on Form S-8 and to the reference to me under the caption Interests of Named Experts and Counsel in the Registration Statement.
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of DowDuPont Inc. of our report dated February 11, 2019 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting of E. I. du Pont de Nemours and Company, which appears in DowDuPont Inc.s Annual Report on Form 10-K for the year ended December 31, 2018.
/s/ PricewaterhouseCoopers LLP
May 31, 2019
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated February 11, 2019, relating to (i) the consolidated financial statements as of December 31, 2018 and 2017, and for the three years in the period ended December 31, 2018 (which report expresses an unqualified opinion on those financial statements and includes an explanatory paragraph regarding a change in accounting policy related to asbestos-related defense and processing costs, a change in the method of accounting for revenue due to the adoption of Accounting Standards Codification Topic 606, Revenue From Contracts with Customers, and an emphasis of a matter paragraph regarding the merger of The Dow Chemical Company and E.I. du Pont de Nemours and Company) of DowDuPont Inc. and subsidiaries (the Company), and (ii) the effectiveness of the Companys internal control over financial reporting, appearing in the Annual Report on Form 10-K of DowDuPont Inc. for the year ended December 31, 2018.
ANKURA CONSULTING GROUP, LLCS CONSENT
Regarding this Registration Statement on Form S-8 for DowDuPont Inc. (the Registration Statement), Ankura Consulting Group, LLC (Ankura) hereby consents to the incorporation by reference in the Registration Statement of the use of Ankuras name and the reference to Ankuras reports appearing in the Annual Report on Form 10-K of DowDuPont Inc. for the year ended December 31, 2018.