Exhibit (10)f
KIMBERLY-CLARK CORPORATION
DEFERRED COMPENSATION PLAN
EFFECTIVE AS OF OCTOBER 1, 1994
AMENDED THROUGH JUNE 9, 1999
KIMBERLY-CLARK CORPORATION
DEFERRED COMPENSATION PLAN
I. PURPOSE
The purpose of this Kimberly-Clark Corporation Deferred Compensation Plan
is to permit a select group of management or highly compensated employees
of Kimberly-Clark Corporation and its subsidiaries to defer income
which would otherwise become payable to them.
II. DEFINITIONS AND CERTAIN PROVISIONS
2.1 "Agreement" means the Plan Agreement(s) executed between a
Participant and the Company, whereby a Participant agrees to defer
a portion of his Salary or Bonus, or both, pursuant to the
provisions of the Plan, and the Company agrees to make benefit
payments in accordance with the provisions of the Plan. In the
event the terms of the Agreement conflict with the terms of the
Plan, the terms of the Plan shall be controlling.
2.2 "Beneficiary" means the person or persons who under this Plan
becomes entitled to receive a Participant's interest in the
event of the Participant's death.
2.3 "Board of Directors" means the Board of Directors of the Company.
2.4 "Bonus" means any amount(s) paid during a calendar year to the
Participant under the Company's Management Achievement Award
Program.
2.5 A "Change of Control" of the Company shall be deemed to have
taken place if: (i) a third person, including a "group" as
defined in Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended, acquires shares of the Company having 20% or more of
the total number of votes that may be cast for the election of
Directors of the Company; or (ii) as the result of any cash tender
or exchange offer, merger or other business combination, sale of
assets or contested election, or any combination of the
foregoing transactions (a "Transaction"), the persons who were
directors of the Company before the Transaction shall cease
to constitute a majority of the Board of Directors of the
Company or any successor to the Company.
2.6 "Code" means the Internal Revenue Code for 1986, as amended and
any lawful regulations or other pronouncements promulgated
thereunder.
2.7 "Committee" means the Retirement Trust Committee named under the
Kimberly-Clark Corporation Salaried Employers' Retirement Plan.
2.8 "Company" means Kimberly-Clark Corporation, a Delaware
corporation, and its subsidiaries and any successor in interest.
For purposes of the Plan, a subsidiary is a corporation, 50% or
more of the voting shares of which are owned directly or
indirectly by the Company, which is incorporated under the
laws of one of the states of the United States.
2.9 "Compensation Committee" means the Compensation Committee of the
Board of Directors.
2.10 "Deferral Year" means any calendar year, 1995 through 2000. For
purposes of 1994, Deferral Year means the Effective Date of the
Plan through December 31, 1994.
2.11 "Deferred Benefit Account" means the cumulative total dollar
amount that a Participant elects to defer in the Agreement,
including gains and losses pursuant to Section 3 as maintained on
the books of the Company for a Participant under this Plan.
A Participant's Deferred Benefit Account shall not constitute
or be treated as a trust fund of any kind.
2.12 "Determination Date" means the date on which the amount of a
Participant's Deferred Benefit Account is determined as provided
in Article III hereof. The last day of each calendar quarter shall
be a Determination Date.
2.13 "Disability" shall have the same meaning as the phrase "Totally
and Permanently Disabled" under the Kimberly-Clark Corporation
Salaried Employees' Retirement Plan. The determination of a
Participant's having become Disabled shall be made by the
Retirement Committee of the Kimberly-Clark Corporation Salaried
Employees' Retirement Plan.
2.14 "Effective Date" means October 1, 1994.
2.15 "IIP" means the Kimberly-Clark Corporation Salaried Employees
Incentive Investment Plan and the Kimberly-Clark Corporation Hourly
Employees Incentive Investment Plan, collectively.
2.16 "Investment Grade" means a bond rating of BBB minus, or its
equivalent, by one of the nationally recognized rating agencies.
2.17 "Participant" means an employee of the Company, or its
subsidiaries or affiliated companies, who is eligible to participate
in the Plan pursuant to Article III, who has executed an Agreement
with the Company, and who has commenced Salary or Bonus, or both
Salary and Bonus, reductions pursuant to such Agreement.
2.18 "Plan" means the Kimberly-Clark Corporation Deferred Compensation
Plan as amended from time to time.
2.19 "Retirement Date" means the date of Termination of Service of
the Participant on or after he attains age 55 and has 5 Years of
Service with the Company.
2.20 "Salary" means the Participant's base salary which would be
received during a calendar year if no election to defer were made,
including any 401(k) Contributions under the IIP or pre-tax
contributions under the Company's Flexible Benefit Plan.
2.21 "Termination of Service" means the Participant's cessation of
his service with the Company for any reason whatsoever, whether
voluntarily or involuntarily, including by reason of retirement,
death, or Disability.
2.22 "Tier 1 Participants" shall include the Chief Executive Officer
and all elected officers of the Company who report directly
to the Chief Executive Officer.
2.23 "Tier 2 Participants" shall include all employees of the Company
(excluding Tier 1 Participants) whose Salary at the beginning of
the Deferral Year is greater than the considered compensation
limit pursuant to Section 401(a)(17) of the Code. For the 1994
Deferral Year, the considered compensation limit is $150,000.
2.24 "Valuation Date" means, for purposes of crediting earnings under
Section 3.6 and determining a Participant's Deferred Benefit
Account under Section 3.7, any business day on which securities
are traded on the New York Stock Exchange.
2.25 "Years of Service" shall have the same meaning as defined under
the Kimberly-Clark Corporation Salaried Employees' Retirement Plan.
III. PARTICIPATION AND COMPENSATION REDUCTION
3.1 Participation. Participation in the Plan shall be limited to
employees of the Company who are either a Tier 1 Participant
or a Tier 2 Participant and who elect to participate in the Plan
by filing an Agreement with the Committee prior to the first day
of the deferral period in which a Participant's participation
commences in the Plan. The election to participate shall be
effective upon receipt by the Committee of the Agreement that is
properly completed and executed in conformity with the Plan.
3.2 Minimum and Maximum Deferral and Length of Participation. Tier 1
Participants - A Tier 1 Participant may elect to defer any
amount of his Salary or Bonus, or both, to the extent that any
portion of such amounts would not be deductible by the Company
pursuant to Section 162(m) of the Code. In addition, a Tier 1
Participant may elect to defer up to 100% of his Bonus paid during
a Deferral Year in 25% increments.
Tier 2 Participants - A Tier 2 Participant may elect to defer
an amount of his Bonus up to the dividend distributed under
Section 7.12 of the IIP during a Deferral Year. The amount of
Bonus which may be deferred related to the dividend payment
from the IIP shall be equal to 25% to 100% (in 25% increments)
of the IIP dividend received. A Tier 2 Participant may not defer
any part of his Salary pursuant to this Plan.
In no event may the amount of a Participant's deferral election
related to the IIP estimated dividend payment for the upcoming
Deferral Year be less than $5,000. The deferral opportunity shall
extend through December 31, 2000. A Participant shall make an
annual election for the upcoming Deferral Year in the year
preceding the Deferral Year for which the election is being made.
Except as provided in Section 3.5, "Emergency Benefit: Waiver
of Deferral," any election so made shall be irrevocable with
respect to Salary and Bonus applicable to that Deferral Year.
Notwithstanding anything in this Plan to the contrary, a
Participant may not elect to defer any amount under this Plan
unless the Participant files a statement with the Committee that
the Participant had individual income in excess of $200,000 in
each of the two most recent years or joint income with that
person's spouse n excess of $300,000 in each of those years and
has a reasonable expectation of reaching the same income level
in the current year.
3.3 Timing of Deferral Credits. The amount of Salary or Bonus, or
both that a Participant elects to defer in the Agreement
shall cause an equivalent reduction in the Participant's
Salary and Bonus, respectively. Deferrals shall be credited
throughout each Deferral Year as the Participant is paid the
non-deferred portion of Salary and Bonus for such Deferral Year.
3.4 New Participants. Subsequent to October 1, 1994, an individual
who is hired into a position which satisfies the requirements
of a Tier 1 Participant or a Tier 2 Participant shall be eligible
to participate in the Plan thirty (30) days after satisfying the
criteria for participation. The eligible employee shall be bound
by all terms and conditions of the Plan, provided, however, that
his Agreement must be filed no later than thirty (30) days
following his eligibility to participate.
Employees who satisfy the criteria of a Tier 1 Participant or a
Tier 2 Participant as a result of a promotion or Salary increase
will be eligible to participate in the Plan beginning on January
1st of the calendar year following eligibility.
3.5 Emergency Benefit: Waiver of Deferral. In the event that the
Committee, upon written petition of the Participant or his
Beneficiary, determines in its sole discretion, that the
Participant or his Beneficiary has suffered an unforeseeable
financial emergency, the Company shall pay to the Participant or
his Beneficiary as soon as possible following such
determination, an amount from the Participant's Deferred Benefit
Account not in excess of the amount necessary to satisfy the
emergency. For purposes of this Plan, an "unforeseeable
financial emergency" is an unanticipated emergency that is
caused by an event beyond the control of the Participant or
Beneficiary and that would result in severe financial
hardship to the individual if the emergency distribution
were not permitted. Cash needs arising from foreseeable events,
such as the purchase of a residence or education expenses for
children shall not be considered the result of an unforeseeable
financial emergency. For purposes of this Plan, an
"unforeseeable financial emergency" is limited to an event
described in Treasury Regulation section 1.401(k)-1(d)(2)(iv)(A)
(1) or (4). For purposes of this Plan, a distribution is in
"the amount necessary to satisfy the emergency" only if the
requirements of Treasury Regulation section 1.401(k)-1(d)(2)
(iv)(B) are satisfied. The Committee shall also grant a
waiver of the Participant's agreement to defer a stated amount
of Salary and Bonus upon finding that the Participant has
suffered an unforeseeable financial emergency. The waiver
shall be for such period of time as the Committee deems necessary
under the circumstances to relieve the hardship.
3.6 Crediting of Earnings - As of the close of business on each
Valuation Date the designated Deferred Benefit Account of each
Participant shall be capable of being valued and adjusted to
preserve for each Participant his proportionate interest in the
related funds as if such account held actual assets and such
assets were among such investment funds as the Participant,
retired Participant or Beneficiary elected pursuant to Section
3.8. As of each Valuation Date the Deferred Benefit Account of
each Participant shall be capable of being adjusted to reflect
the effect of income, collected and accrued, realized and
unrealized profits and losses, expenses which would have been
incurred in connection with the sale, investment and reinvestment
of the investment funds (such as brokerage, postage, express and
insurance charges and transfer taxes), and all other transactions
with respect to the related fund. The effect of such transactions
shall be determined by the Committee in accordance with generally
accepted valuation principles applied on a consistent basis.
Each Participant's Deferred Benefit Account shall then be
appropriately credited with his deferred amounts as set forth in
Section 3.7.
3.7 Determination of Account. The balance of each Participant's
Deferred Benefit Account as of each Valuation Date shall be
calculated, in a manner determined by the Committee in
accordance with generally accepted valuation principles applied on
a consistent basis, as follows: the beginning balance of each
Participant's Deferred Benefit Account; less distributions payable
pursuant to Section 4.11 as of the Valuation Date coincident with
the Determination Date set forth in Section 4.11 or, if none,
the Valuation Date immediately following such Determination Date;
plus investment earnings, gains and losses determined pursuant
to Section 3.6 credited to each Participant's Deferred Benefit
Account; plus Participant deferrals credited to each
Participant's Deferred Benefit Account pursuant to Section 3.3.
3.8 Investment Funds and Elections. - Participants, retired
Participants, and Beneficiaries may elect that their Deferred
Benefit Account be credited with earnings, gains and losses as
if such accounts held actual assets and such assets were among
such investment funds as the Company may designate. Any such
direction of investment shall be subject to such rules as the
Company and the Committee may prescribe, including, without
limitation, rules concerning the manner of providing investment
directions, the frequency of changing such investment
directions, and method of crediting earnings, gains and losses
for any portion of a Deferred Benefit Account which is not
covered by any valid investment directions. The investment
funds which the Company may designate shall include but not be
limited to the following types of funds, which can be managed on
an individual basis or as part of a mutual fund, as the Company
shall determine:
(a) money market funds;
(b) common stock funds;
(c) bond funds;
(d) balanced funds;
(e) investment funds which are primarily invested in insurance
contracts; and
(f) investment funds which are provided for under insurance
contracts.
The Company shall have the sole discretion to determine the number
of investment funds to be designated hereunder and the nature of the funds and
may change or eliminate the investment funds provided hereunder from time to
time. The Committee shall determine the rate of earnings, gains and losses to
be credited to Participant's Deferred Benefit Accounts under this Plan with
respect to any such investment fund for any period, taking into account the
return, net of any expenses which would have been incurred in connection with
the sale, investment and reinvestment of the investment funds (such as
brokerage, postage, express and insurance charges and transfer taxes), of such
investment funds for such period.
3.9 Reallocations. A Participant may elect to reallocate all or any
whole percentage portion of his Deferred Benefit Account effective as of the
last Valuation Date of any calendar month.
3.10 Vesting of Deferred Benefit Account. A Participant shall be 100
percent vested in his Deferred Benefit Account equal to the amount of Salary
and Bonus he deferred into the Deferred Benefit Account and the earnings,
gains or losses credited thereon.
IV. BENEFITS
4.1 Inservice Distribution. At the time a Participant executes an
Agreement, he may elect to receive a return of his deferrals.
The amount of the return of deferral shall be equal to the
lesser of the amount deferred in a specific year or the
Participant's Deferred Benefit Account. Each such return of
deferral shall be made in a lump sum as soon as administratively
feasible on or after the last business day of October of the
fifth, tenth or fifteenth year following the year in which the
deferral is earned, provided that the Participant continues in
the employ of the Company, its subsidiary or affiliated company
until such date. Once the Participant elects to receive his
return of deferral, the election shall be irrevocable. A
return of deferral pursuant to this Section 4.1 shall only
be paid prior to a Participant's Termination of Service.
Any return of deferral paid shall be deemed a distribution, and
shall be deducted from the Participant's Deferred Benefit Account.
A separate return of deferrals election shall be made for each
Deferral Year.
4.2 Retirement Benefit. Subject to Section 4.6 below, upon a
Participant's Retirement Date, he shall be entitled to receive
the amount of his Deferred Benefit Account. The form of
benefit payment, and the commencement of such benefit, shall
be as provided in Section 4.6.
4.3 Termination Benefit. Upon the Termination of Service of a
Participant prior to his Retirement Date, for reasons other
than death or Disability, the Company shall pay to the
Participant, a benefit equal to his Deferred Benefit Account.
Unless otherwise directed by the Committee, the termination
benefit shall be payable in a lump sum as set forth in Section
4.11 following the Participant's Termination of Service. Upon
a Termination of Service, the Participant shall immediately cease
to be eligible for any other benefit provided under this Plan.
4.4 Death Benefits. Upon the death of a Participant or a retired
Participant, the Beneficiary of such Participant shall receive
the Participant's remaining Deferred Benefit Account. Payment of
a Participant's remaining Deferred Benefit Account shall be in
accordance with Section 4.6.
4.5 Disability. In the event of a Termination of Service due to
Disability prior to his Retirement Date, a disabled Participant
shall receive his remaining Deferred Benefit Account. Payment of
a Participant's remaining Deferred Benefit Account shall be in
accordance with Section 4.6.
4.6 Form of Benefit Payment.
(a) Upon the happening of an event described in Sections 4.1,
4.2, 4.3, 4.4, or 4.5, the Company shall pay to the
Participant the amount specified therein in a lump sum.
(b) In the event that a Participant retires as described in
Section 4.2, the Participant may, with the consent of the
Committee, elect an installment form of benefit payments.
The written request must be made prior to December 31 of
the calendar year preceding the Participant's Retirement
Date. The Committee may, in its discretion, grant the
Participant's request.
(c) In the event of the death of the Participant, as described
in Section 4.4, the Participant's Beneficiary may,
with the consent of the Committee, elect an installment
benefit payment. This written request must be made no
later than thirty (30) days after the Participant's date
of death. The Committee may, in its discretion, grant
such Beneficiary's request.
(d) In the event that a Participant terminates service due to a
Disability as described in Section 4.5, the Participant
may, with the consent of the Committee, elect an
installment form of benefit payment. The written request
must be made no later than thirty (30) days after the
date the Participant is determined to be disabled by the
Retirement Committee of the Kimberly-Clark Salaried
Employees' Retirement Plan. The Committee may, in its
discretion, grant the Participant's request.
(e) In the event that installment payments are to be made
pursuant to Subsections 4.6(b), (c) or (d), such
payments shall be in quarterly installments commencing as
soon as administratively feasible after the Committee
grants the request for an installment form of benefit
payment. Such quarterly installments shall be payable in
approximately equal amounts over a period, no less than
two (2) calendar years and no more than twenty (20) calendar
years.
Initially, the amount of any installments under the
installment form of payment described in this Subsection
4.6(e) shall be equal to the balance of the Participant's
Deferred Benefit Account to be distributed divided by
the number of installments to be paid. The amount of the
installment payments shall be recomputed annually and the
installment payments shall be increased or decreased to
reflect any changes in the Participant's Deferred Benefit
Account due to fluctuations in earnings, gains and losses
on the remaining balance and the number of remaining
installments. Quarterly installments payments will be made
on the last business day of January, April, July and
October.
4.7 Limitations on the Annual Amount Paid to a Participant.
Notwithstanding any other provisions of this Plan to the
contrary, in the event that a portion of the payments due a
Participant pursuant to Sections 3.5, 4.1, 4.2, 4.3, 4.4, 4.5,
or 4.6 would not be deductible by the Company pursuant to
Section 162(m) of the Code, the Company, at its discretion, may
postpone payment of such amounts to the Participant until such
time that the payments would be deductible by the Company.
Provided, however, that no payment postponed pursuant to this
Section 4.7 shall be postponed beyond the first anniversary of
such Participant's Termination of Service.
4.8 Change of Control and Lump Sum Payments.
(a) If there is a Change of Control, notwithstanding any other
provision of this Plan, any Participant who has a
Deferred Benefit Account hereunder may, at any time during
a twenty-four (24) month period immediately following a
Change of Control, elect to receive an immediate lump sum
payment of the balance of his Deferred Benefit Account,
reduced by a penalty equal to ten percent (10%) of the
Participant's Deferred Benefit Account as of the
Determination Date. The ten percent (10%) penalty shall
be permanently forfeited and shall not be paid to,
or in respect of, the Participant.
(b) If there is a Change of Control, notwithstanding any other
provision of this Plan, any retired or disabled
Participant, or Beneficiary, who has a Deferred Benefit
Account hereunder may, at any time during a twenty-four
(24) month period immediately following a Change of Control,
elect to receive an immediate lump sum payment of the
balance of his Deferred Benefit Account, reduced by a
penalty equal to five percent (5%) of the Participant's
Deferred Benefit Account as of the Determination Date. The
five percent (5%) penalty of the retired Participant's or
Beneficiary's Deferred Benefit Account shall be permanently
forfeited and shall not be paid to, or in respect of, the
retired Participant or Beneficiary.
(c) In the event no such request is made by a Participant, a
retired or disabled Participant or Beneficiary, the Plan
and Agreement shall remain in full force and effect.
4.9 Change In Credit Rating and Lump Sum Payments.
In the event the Company's financial rating falls below
Investment Grade, a Participant, retired or disabled Participant,
or Beneficiary may at any time during a six (6) month period
following the reduction in the Company's financial rating,
elect to receive an immediate lump sum payment of the balance of
his Deferred Benefit Account reduced by a penalty equal to ten
percent (10%) of the Participant's Deferred Benefit Account or
five percent (5%) of the retired or disabled Participant's
or Beneficiary's Deferred Benefit Account. The penalties
accrued hereunder shall be permanently forfeited and shall not
be paid to, or in respect of, the Participant, retired or
disabled Participant or Beneficiary.
In the event no such request is made by a Participant, retired
or disabled Participant or Beneficiary, the Plan and Agreement
shall remain in full force and effect.
4.10 Tax Withholding. To the extent required by law in effect at the
time payments are made, the Company shall withhold any taxes
required to be withheld by any Federal, State or local
government.
4.11 Commencement of Payments. Unless otherwise provided,
commencement of payments under this Plan shall be as soon as
administratively feasible on or after the last business
day of the month following the Determination Date after receipt
of notice and approval by the Committee of an event which
entitles a Participant or a Beneficiary to payments under this
Plan. Amounts payable hereunder shall be credited with
interest from the Determination Date to the day prior to
payment at a rate yielding interest equivalent to the per annum
secondary market discount rate for six-month U.S. Treasury Bills
as published by the Federal Reserve Board for the calendar week
ending prior to January 1 (for interest to be credited for
either of the subsequent fiscal quarters ending March 31 or
June 30) or prior to July 1 (for interest to be credited for
either of the subsequent fiscal quarters ending on September 30
or December 31).
4.12 Recipients of Payments: Designation of Beneficiary. All
payments to be made by the Company under the Plan shall
be made to the Participant during his lifetime, provided that
if the Participant dies prior to the completion of such
payments, then all subsequent payments under the Plan shall be
made by the Company to the Beneficiary determined in accordance
with this Section. The Participant may designate a Beneficiary
by filing a written notice of such designation with the
Committee in such form as the Committee requires and may include
contingent Beneficiaries. The Participant may from time-to-time
change the designated Beneficiary by filing a new designation
in writing with the Committee. If no designation is in effect at
the time when any benefits payable under this Plan shall
become due, the Beneficiary shall be the spouse of the
Participant, or if no spouse is then living, the representatives
of the Participant's estate.
V. CLAIMS FOR BENEFITS PROCEDURE
5.1 Claim for Benefits. Any claim for benefits under the Plan shall
be made in writing to any member of the Committee. If such claim
is wholly or partially denied by the Committee, the Committee
shall, within a reasonable period of time, but not later than
sixty (60) days after receipt of the claim, notify the claimant of
the denial of the claim. Such notice of denial shall be in writing
and shall contain:
(a) The specific reason or reasons for denial of the claim;
(b) A reference to the relevant Plan provisions upon which the
denial is based;
(c) A description of any additional material or information
necessary for the claimant to perfect the claim, together with
an explanation of why such material or information is
necessary; and
(d) An explanation of the Plan's claim review procedure.
If no such notice is provided, the claim shall be deemed to have
been denied.
5.2 Request for Review of a Denial of a Claim for Benefits. Upon the
receipt by the claimant of written notice of denial of the claim,
the claimant may file a written request to the Committee,
requesting a review of the denial of the claim, which review shall
include a hearing if deemed necessary by the Committee. In
connection with the claimant's appeal of the denial of his
claim, he may review relevant documents and may submit issues and
comments in writing.
5.3 Decision Upon Review of Denial of Claim for Benefits. The
Committee shall render a decision on the claim review promptly,
but no more than sixty (60) days after the receipt of the
claimant's request for review, unless special circumstances
(such as the need to hold a hearing) require an extension of time,
in which case the sixty (60) day period shall be extended to
120 days. Such decision shall:
(a) Include specific reasons for the decision;
(b) Be written in a manner calculated to be understood by the
claimant; and
(c) Contain specific references to the relevant Plan provisions
upon which the decision is based.
The decision of the Committee shall be final and binding in
all respects on both the Company and the claimant.
VI. ADMINISTRATION
6.1 Committee. The Plan shall be administered by the Committee. The
Committee shall elect one of its members as chairman.
Members of the Committee shall not receive compensation for
their services. Committee expenses shall be paid by the Company.
Members of the Committee or agents of the Committee may be
Participants under the Plan. No member of the Committee who is
also a Participant shall be involved in the decisions of the
Committee regarding any determination of any claim for benefit
with respect to himself.
6.2 General Rights, Powers, and Duties of Committee. The Committee
shall be responsible for the management, operation, and
administration of the Plan. The Committee may designate a
Committee member or an officer of the Company as Plan
Administrator. Absent such delegation, the Committee shall be
the Plan Administrator. The Plan Administrator shall
perform duties as designated by the Committee. In addition to
any powers, rights and duties set forth elsewhere in the Plan,
it shall have the following powers and duties:
(a) To adopt such rules and regulations consistent with the
provisions of the Plan as it deems necessary for the proper
and efficient administration of the Plan;
(b) To administer 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 including any doubtful or
contested terms and resolve all questions arising under the
Plan;
(e) To direct the Company 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 employ or retain agents, attorneys, actuaries,
accountants or other persons, who may also be Participants
in the Plan or be employed by or represent the Company,
as it deems necessary for the effective exercise of its
duties, and may delegate to such agents any power and duties,
both ministerial and discretionary, as it may deem necessary
and appropriate; and
(g) To be responsible for the preparation, filing and disclosure
on behalf of the Plan of such documents and reports as are
required by any applicable Federal or State law.
6.3 Information to be Furnished to Committee. The Company shall
furnish the Committee such data and information as it may
require. The records of the Company shall be
determinative of each Participant's period of employment,
termination of employment and the reason therefor,
leave of absence, reemployment, Years of Service, personal
data, and Salary and Bonus reductions. Participants and
their Beneficiaries shall furnish to the Committee such
evidence, data, or information, and execute such documents as
the Committee requests.
6.4 Responsibility. No member of the Committee, the Compensation
Committee or the Board of Directors of the Company shall
be liable to any person for any action taken or omitted in
connection with the administration of this Plan.
6.5 Committee Review. Any action on matters within the discretion
of the Committee shall be final and conclusive as to all
Participants, retired Participants, Beneficiaries and other
persons claiming rights under the Plan. The Committee shall
exercise all of the powers, duties and responsibilities set
forth hereunder in its sole discretion.
VII. AMENDMENT AND TERMINATION
7.1 Amendment. The Plan may be amended in whole or in part by either
the Board of Directors or the Compensation Committee at any time.
Notice of any such amendment shall be given in writing to the
Committee and to each Participant and each Beneficiary. No
amendment shall decrease the value of a Participant's Deferred
Benefit Account.
7.2 Company's Right to Terminate. The Board of Directors may
terminate the Plan and may terminate any Agreements
pertaining to the Participant at any time after the Effective
Date of the Plan. In the event of any such termination, the
Participant shall be entitled to the amount of his Deferred
Benefit Account determined under Section 3.7 as of the date of
any such termination. Such benefit shall be paid to the
Participant in quarterly installments over a period of no more
than ten (10) years, except that the Company, in its sole
discretion, may pay out such benefit in a lump sum or in
installments over a period shorter than ten (10) years.
VIII. MISCELLANEOUS
8.1 No Implied Rights; Rights on Termination of Service. Neither the
establishment of the Plan nor any amendment thereof shall be
construed as giving any Participant, retired Participant,
Beneficiary, or any other person any legal or equitable right
unless such right shall be specifically provided for in the Plan
or conferred by specific action of the Company in accordance
with the terms and provisions of the Plan. Except as expressly
provided in this Plan, the Company shall not be required or be
liable to make any payment under the Plan.
8.2 No Right to Company Assets. Neither the Participant nor any other
person shall acquire by reason of the Plan any right in or
title to any assets, funds or property of the Company
whatsoever including, without limiting the generality of the
foregoing, any specific funds, assets, or other property which
the Company, in its sole discretion, may set aside. Any
benefits which become payable hereunder shall be paid from the
general assets of the Company. The Participant shall have
only a contractual right to the amounts, if any, payable
hereunder unsecured by any asset of the Company. Nothing
contained in the Plan constitutes a guarantee by the Company that
the assets of the Company shall be sufficient to pay any
benefit to any person.
8.3 No Employment Rights. Nothing herein shall constitute a contract
of employment or of continuing service or in any manner obligate
the Company to continue the services of the Participant, or
obligate the Participant to continue in the service of the Company,
or as a limitation of the right of the Company to discharge any
of its employees, with or without cause. Nothing herein shall be
construed as fixing or regulating the Salary and Bonus payable
to the Participant.
8.4 Offset. If, at the time payments or installments of payments are
to be made hereunder, the Participant, retired Participant or the
Beneficiary are indebted or obligated to the Company, then the
payments remaining to be made to the Participant, retired
Participant, or the Beneficiary may, at the discretion of the
Company, be reduced by the amount of such indebtedness or
obligation, provided, however, that an election by the Company
not to reduce any such payment or payments shall not constitute
a waiver of its claim for such indebtedness or obligation.
8.5 Non-assignability. Neither the Participant nor any other person
shall have any voluntary or involuntary right to commute,
sell, assign, pledge, anticipate, mortgage or otherwise encumber,
transfer, hypothecate or convey in advance of actual receipt the
amounts, if any, payable hereunder, or any part thereof, which
are expressly declared to be unassignable and non-transferable.
No part of the amounts payable shall be, prior to actual
payment, subject to seizure or sequestration for the payment
of any debts, judgments, alimony or separate maintenance owed
by the Participant or any other person, or be transferable by
operation of law in the event of the Participant's or any other
person's bankruptcy or insolvency.
8.6 Successors, Mergers, and Consolidations. The Plan and any
Agreement thereunder shall inure to the benefit of and be binding
upon (i) the Company and its successors and assigns,
including without limitation, any corporation into which the
Company may be merged or consolidated, or which acquires all or
substantially all of the assets and business of the Company and
(ii) the Participant and his heirs, executors, administrators
and legal representatives.
8.7 Notice. Any notice required or permitted to be given under the
Plan shall be sufficient if in writing and hand delivered,
or sent by registered or certified mail, and if given to the
Company, delivered to the principal office of the Company,
directed to the attention of the Committee. Such notice shall
be deemed given as of the date of delivery or, if delivery is made
by mail, as of the date shown on the postmark or the receipt
for registration or certification.
8.8 Governing Laws. The Plan shall be construed and administered
according to the laws of the State of Wisconsin.