Exhibit (10)f
KIMBERLY-CLARK CORPORATION
DEFERRED COMPENSATION PLAN
EFFECTIVE AS OF OCTOBER 1, 1994
AMENDED AND RESTATED
AS OF NOVEMBER 14, 2000
KIMBERLY-CLARK CORPORATION
DEFERRED COMPENSATION PLAN
KIMBERLY-CLARK CORPORATION HEREBY AMENDS AND RESTATES IN ITS ENTIRETY,THE
KIMBERLY-CLARK CORPORATION DEFERRED COMPENSATION PLAN, EFFECTIVE NOVEMBER
14, 2000.
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 or her 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 or any successor 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 year1995 through 2006. For
purposes of 1994, Deferral Year means the Effective Date of the
Plan through December 31, 1994. 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.
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 "Investment Grade" means a bond rating of BBB minus, or its
equivalent, by one of the nationally recognized rating agencies.
2.16 "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.
2.17 "Plan" means the Kimberly-Clark Corporation Deferred
Compensation Plan as amended from time to time.
2.18 "Retirement Date" means the date of Termination of Service of the
Participant on or after he or she attains age 55 and has 5 Years
of Service with the Company.
2.19 "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 Company
Incentive Investment Plan or pre-tax contributions under the
Company's Flexible Benefit Plan." For purposes of this Plan,
Salary shall not include severance or other payments made in
connection with a Participant's Termination of Service.
2.20 "Termination of Service" means the Participant's cessation of
his or her service with the Company for any reason
whatsoever, whether voluntarily or involuntarily, including by
reason of retirement, death, or Disability.
2.21 "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.
2.22 "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 the
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Chief Executive Officer, elected officers and all eligible
officers and/or employees of the Company, approved to
participate by the Chief Executive Officer in his sole discretion,
and who elect to participate in the Plan. A Participant must file
an Agreement with the Committee, at such time and in such form as
the Committee may require or permit, 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. A
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Participant may elect to defer any amount of his or her 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 Participant may elect to defer
from 10% to 100% of his or her Bonus paid during a Deferral Year
in 1% increments.
In the event a Participant elects to defer an amount of his or
her Salary and/or Bonus that would not allow for the full payment
of all FICA, federal, state and/or local income tax liabilities,
the Company may withhold all or a portion of any applicable taxes
from the Participant's Salary to the extent required by law.
In no event may the amount of a Participant's deferral election
related to his or her Bonus paid during a Deferral Year be less
than $5,000. The deferral opportunity shall extend through
December 31, 2006. 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 in 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
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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. An individual who is hired into a position
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which satisfies the requirements of a 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 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
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Committee, upon written petition of the Participant or his or her
Beneficiary, determines in its sole discretion, that the
Participant or his or her Beneficiary has suffered an
unforeseeable financial emergency, the Company shall pay to the
Participant or his or her 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
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Valuation Date the designated Deferred Benefit Account of each
Participant shall be capable of being valued and adjusted to
preserve for each Participant his or her 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 or her
deferred amounts as set forth in Section 3.7.
3.7 Determination of Account. The balance of each Participant's
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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
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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
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determined pursuant to Section 3.6 credited to each Participant's
Deferred Benefit Account; plus Participant deferrals credited
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to each Participant's Deferred Benefit Account pursuant to Section
3.3.
3.8 Investment Funds and Elections. - Participants, retired
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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. Participants, retired Participants, and
Beneficiaries shall allocate their Deferred Benefit Account among
the deemed investment options by making an election online or filing
an election with the Committee at such time and in such form as the
Committee may require or permit. A Participant, retired
Participant or Beneficiary may elect to allocate his or her
Deferred Benefit Account in 1% increments (minimum of 5% per
investment option), among as many of the investment options which
are offered by the Company. 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. Prior to January 1, 2001, a Participant may elect
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to reallocate all or any whole percentage portion of his Deferred
Benefit Account effective as of the last Valuation Date of
any calendar month.
Effective January 1, 2001, a Participant may elect as of any
day on which securities are traded on the New York Stock Exchange
to change the manner in which his or her Deferred Benefit Account
and his or her future deferrals are deemed invested among the
available investment fund options. Any change of investment
allocation received will be effective as of the close of business
on that business day if received by 3:00 p.m. Central Time (or,
if earlier, the closing time of the New York Stock Exchange or
such other time and under such other conditions as may be imposed
by the recordkeeper or the Committee under the Company Incentive
Investment Plan). The determination of a Participant's having
timely elected a change of investment allocation shall be made
under the same terms and conditions as are applicable to "Timely
Notice" of elections to reallocate under the terms of the Company
Incentive Investment Plan.
3.10 Vesting of Deferred Benefit Account. A Participant shall be 100
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percent vested in his or her Deferred Benefit Account equal to
the amount of Salary and Bonus he or she deferred into the
Deferred Benefit Account and the earnings, gains or losses
credited thereon.
IV. BENEFITS
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4.1 Inservice Distribution. At the time a Participant executes an
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Agreement, he or she may elect to receive a return of his or her
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, which
shall be no less than five (5) Deferral Years following the year
in which the deferral was originally made, 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 or her 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
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Participant's Retirement Date, he or she shall be entitled to
receive the amount of his or her 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
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Participant prior to his or her Retirement Date, for reasons other
than death or Disability, the Company shall pay to the Participant,
a benefit equal to his or her 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 Benefit. Upon the death of a Participant or a retired
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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
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Disability prior to his or her Retirement Date, a disabled
Participant shall receive his or her 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.
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(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 prior to December 31 of the
calendar year preceding the Participant's Retirement Date.
The Committee may, in its sole and absolute discretion, grant
the Participant's request. If, upon a Participant's Retirement
Date, the balance of a Participant's Deferred Benefit
Account is less than $25,000, the Participant will be paid his
or her Deferred Benefit Account balance as of the Participant's
Retirement Date, in a final lump sum payment.
(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 sole 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 sole 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. In addition, if, at the time a
Participant is scheduled to receive an installment payment, the
balance of his or her Deferred Benefit Account is less than $5,000,
the Participant will be paid his or her remaining Deferred Benefit
Account balance in a final lump sum payment.
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.
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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 sole 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.
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(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 or her 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 or
her 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 or disabled Participant's or
Beneficiary's Deferred Benefit Account shall be permanently
forfeited and shall not be paid to, or in respect of, the
retired or disabled 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.
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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 or her
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
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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,
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commencement of payments under this Plan shall be as soon as
administratively feasible on or after the Determination Date
after receipt of notice by the Committee of an event which
entitles a Participant or a Beneficiary to payments under this Plan.
4.12 Recipients of Payments: Designation of Beneficiary. All
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payments to be made by the Company under the Plan shall be
made to the Participant during his or her 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
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5.1 Claim for Benefits. Any claim for benefits under the Plan shall
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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
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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 or her claim, he or she
may review relevant documents and may submit issues and comments in
writing.
5.3 Decision Upon Review of Denial of Claim for Benefits. The
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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
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6.1 Committee. The Plan shall be administered by the Committee. The
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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 or herself.
6.2 General Rights, Powers, and Duties of Committee. The Committee
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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 t 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
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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
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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
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the Committee shall be final and conclusive as to all Participants,
retired Participants, disabled 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
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7.1 Amendment. The Plan may be amended in whole or in part by either
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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
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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 or her 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.
VII. MISCELLANEOUS
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8.1 No Implied Rights; Rights on Termination of Service. Neither the
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establishment of the Plan nor any amendment thereof shall be
construed as giving any Participant, retired Participant,
disabled 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
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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
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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
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to be made hereunder, the Participant, retired Participant,
disabled Participant, or the Beneficiary are indebted or obligated
to the Company, then the payments remaining to be made to the
Participant, retired Participant, disabled Participant, or the
Beneficiary may, at the sole 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
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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
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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 or her heirs, executors, administrators and
legal representatives.
8.7 Notice. Any notice required or permitted to be given under the
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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
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according to the laws of the State of Wisconsin.