Exhibit 10.11
KIMBERLY-CLARK CORPORATION
RETIREMENT CONTRIBUTION EXCESS BENEFIT PROGRAM
In recognition of the valuable services provided to Kimberly-
Clark Corporation (the "Corporation"), and its subsidiaries, by its
employees, the Board of Directors of the Corporation (the "Board")
wishes to provide additional retirement benefits to those individuals
whose benefits under the Kimberly-Clark Corporation Retirement
Contribution Plan (the "RCP") are restricted by the operation of the
provisions of the Internal Revenue Code of 1986, as amended. It is
the intent of the Corporation to provide these benefits under the
terms and conditions hereinafter set forth. This Program is intended
to encompass two plans, (i) an "excess benefit plan" within the
meaning of Section 3(36) of Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and, as such, to be exempt from all of the
provisions of ERISA pursuant to Section 4(b)(5) thereof and (ii) a
non-qualified supplemental retirement plan which is unfunded and
maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated
employees of the Corporation, pursuant to Sections 201, 301 and 401 of
ERISA and, as such, exempt from the provisions of Parts II, III and IV
of Title I of ERISA.
ARTICLE 1
Definitions
Each term which is used in this Program and also used in the RCP shall
have the same meaning herein as the RCP.
Notwithstanding the above, for purposes of this Program, where the
following words and phrases appear in this Program they shall have the
respective meanings set forth below unless the context clearly
indicates otherwise:
1.1 "Beneficiary" means the person or persons who under this Program
becomes entitled to receive a Participant's interest in the event of
the Participant's death. The Beneficiary need not be the same as the
beneficiary under the RCP.
1.2 A "Change of Control" of the Corporation 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 Corporation having 20% or more of the total
number of votes that may be cast for the election of Directors of the
Corporation; 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 Corporation
before the Transaction shall cease to constitute a majority of the
Board of Directors of the Corporation of any successor to the
Corporation.
1.3 "Code" means the Internal Revenue Code for 1986, as amended and
any lawful regulations or other pronouncements promulgated thereunder.
1.4 "Committee" means the Incentive Investment Plan Committee named
under the Kimberly-Clark Corporation Salaried Employees Incentive
Investment Plan.
1.5 "Earnings" means remuneration when paid, or would have been paid
but for an Employee's deferral election, to a Participant from a
Participating Unit for personal services rendered to such
Participating Unit (before any withholding required by law or
authorized by the person to whom such remuneration is payable),
including overtime, bonuses, incentive compensation, vacation pay,
deducted military pay, state disability payments received, workers
compensation payments received and, to the extent such deductions
decrease the individual's base pay, Before-Tax deferrals under the
Kimberly-Clark Corporation Salaried Employee Incentive Investment
Plan, contributions under the Kimberly-Clark Corporation Flexible
Benefits Plan or any other plan described under Section 125 of the
Code, and deferrals under the Kimberly-Clark Corporation Deferred
Compensation Plan. Earnings shall exclude any severance payments
(except as provided in Section 4.3 of the RCP), payments made under
the Kimberly-Clark Corporation Equity Participation Plans, pay in lieu
of vacation, compensation paid in a form other than cash (such as
goods, services and, except as otherwise provided herein,
contributions to employee benefit programs), service or suggestion
awards, and all other special or unusual compensation of any kind;
provided, however that the limitations on Earnings provided for
pursuant to Code Sections 401(a)(17) shall not apply under this
Program. Notwithstanding the foregoing, Earnings shall not include
any remuneration paid to a Participant after payment of such
individual's Individual Account commences in accordance with Section
4.9 following the Participant's Termination of Service.
1.6 "Effective Date" means January 1, 1997.
1.7 "Excess Plan" means the plan established as part of the Program
for Participants whose Retirement Contributions to the RCP are limited
solely by Code Section 415.
1.8 "Individual Account" means the account established pursuant to
Section 3.
1.9 "Investment Funds" means the phantom investment funds established
under this Program which will accrue earnings as if the Participant's
Individual Account held actual assets which were invested in the
appropriate Investment Fund as defined under the RCP.
1.10 "Participant" means any Employee who satisfies the eligibility
requirements set forth in Section 2. In the event of the death or
incompetency of a Participant, the term shall mean the Participant's
personal representative or guardian.
1.11 "Program" means the Kimberly-Clark Corporation Retirement
Contribution Excess Benefit Program as set forth herein and as the
same may be amended from time to time; provided, however, that the
term "Excess Plan" or "SRP" may be used to refer to only one of the
two plans encompassed within the Program.
1.12 "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 Corporation.
1.13 "RCP" means the Kimberly-Clark Corporation Retirement
Contribution Plan, as in effect from time to time.
1.14 "SRP" means the plan established as part of the Program for
Participants whose Retirement Contributions to the RCP are limited by
the application of the rules, or regulations, of Code Section
401(a)(4) or the limitations of Code Section 401(a)(17), in either
case alone or in conjunction with the limitations of Code Section 415
or whose Earnings are not fully taken into account in determining the
Employee's Retirement Contributions to the RCP.
1.15 "Termination of Service" means the Participant's cessation of his
service with the Corporation for any reason whatsoever, whether
voluntarily or involuntarily, including by reasons of retirement or
death.
ARTICLE 2
Eligibility
2.1 Any Employee who is a Participant in the RCP on or after the
Effective Date and whose Retirement Contributions to the RCP are
limited solely by Code Section 415 shall participate in the Excess
Plan. Any other Employee who is a Participant in the RCP on or after
the Effective Date and whose Retirement Contributions to the RCP are
limited by the application of the rules, or regulations, of Code
Section 401(a)(4) or the limitations of Code Section 401(a)(17), in
either case alone or in conjunction with the limitations of Code
Section 415 or whose Earnings are not fully taken into account in
determining the Employee's Retirement Contributions to the RCP shall
participate in the SRP; provided, however, that no Employee shall
become a Participant in the SRP unless such Employee is a member of a
select group of management or highly compensated Employees of the
Corporation so that the SRP is maintained as a plan described in
Section 201(2) of ERISA.
2.2 Notwithstanding any of the foregoing provisions of Article 2 to
the contrary, any Employee who on the Effective Date is both an active
employee of the Corporation or its subsidiaries and is a Participant
in the Kimberly-Clark Tissue Company Defined Contribution Excess
Benefit Program (the "KCTC Plan") must elect to participate in this
Program and shall, pursuant to this election, as of the Effective
Date, have the amount credited to the Participant's Individual Account
under the KCTC Plan transferred to this Program. "Active employee"
shall not include employees who are in transition assignments or who
are on Limited Service as defined under the Scott Paper Company
Termination Pay Plan for Salaried Employees.
ARTICLE 3
Individual Account
3.1 The Corporation shall create and maintain an unfunded Individual
Account under the Excess Plan or the SRP, as applicable, for each
Participant to which it shall credit the amounts described in this
Article 3. Participants entitled to receive Retirement Contributions
under the RCP shall receive Retirement Contributions under the Excess
Plan in an amount as would have been contributed for such Participant
under the RCP without regard to the limitation on benefits imposed by
Section 415 of the Code, and calculated using Earnings as defined in
this Program, but only to the extent that such amount exceeds such
limitations. In addition, each Participant shall receive Retirement
Contributions under the SRP as would have been contributed for such
Participant under the RCP without regard to the limitations on
benefits imposed by Sections 401(a)(17) and 401(a)(4) of the Code, and
calculated using Earnings as defined in this Program, but only to the
extent that such amount exceeds the Retirement Contributions under the
RCP. Such Retirement Contributions shall be made for each Participant
on the same terms and conditions, at the same times, and pursuant to
the same elections made by the Participant as they would have been if
paid under the RCP, were not for such limitations on benefits or
Earnings.
3.2 For the period prior to July 1, 1997, as of the last day of each
calendar month, the Corporation shall credit each Participant's
Individual Account with deemed interest with respect to the then
balance of the Participant's Individual Account equal to 1% plus the
rate shown for U.S. Treasury Notes with a remaining maturity closest
to, but not exceeded, 7 years, in the "representative mid-afternoon
over the counter quotations supplied by the Federal Reserve Bank of
New York City, based on transactions of $1 million or more," as
reported in The Wall Street Journal published on the last business day
of each calendar month; provided, however, the Committee may change
this crediting rating at any time for deemed interest not yet credited
to an Individual Account.
3.3 After June 30, 1997, each Participant's Retirement Contributions
under this Program shall be considered allocated to the Investment
Funds in the same proportion as the Participant has elected under the
RCP pursuant to Section 6.1 thereof.
3.4 After June 30, 1997, reallocations between Investment Funds shall
be considered made at the same time, in the same proportionate amount,
and to and from the same Investment Funds under this Program as those
made by the Participant under Section 6.3 of the RCP; provided,
however, that if such Participant has no account balance under the
RCP, the Participant may make separate reallocation elections
hereunder in a manner prescribed by the Committee.
3.5 After June 30, 1997, the Corporation shall credit each
Participant's Individual Account with earnings, gains and losses as if
such accounts held actual assets and such assets were invested among
such Investment Funds, in the same proportion as the Participant has
invested in the RCP; provided, however, that if such Participant has
no account balance under the RCP, the Participant may make separate
investment elections hereunder in the manner prescribed by the
Committee.
ARTICLE 4
Distributions of Benefit Supplement
4.1 Retirement Benefit. Subject to Section 4.5 below, upon a
Participant's Retirement Date, he shall be entitled to receive the
amount of his Individual Account. The form of benefit payment, and
the time of commencement of such benefit, shall be as provided in
Section 4.4.
4.2 Termination Benefit. Upon the Termination of Service of a
Participant prior to his Retirement Date, for reasons other than
death, the Corporation shall pay to the Participant, a benefit equal
to his Individual Account.
Unless otherwise directed by the Committee, the termination benefit
shall be payable in a lump sum as set forth in Section 4.9 following
the Participant's Termination of Service. Upon payment following a
Termination of Service, the Participant shall immediately cease to be
eligible for any other benefit provided under this Program.
4.3 Death Benefits. Upon the death of a Participant or a retired
Participant, the Beneficiary of such Participant shall receive the
Participant's remaining Individual Account. Payment of a
Participant's remaining Individual Account shall be made in accordance
with Section 4.4.
4.4 Form of Benefit Payment.
(a) Upon the happening of an event described in Sections 4.1,
4.2 or 4.3, the Corporation 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 4.1, 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 sole discretion, grant the Participant's request.
(c) In the event of the death of the Participant, the
Participant's Beneficiary may, with the consent of the Committee,
elect an installment form of 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 installment payments are to be made
pursuant to Subsections 4.4(b) or (c), such payments shall be in
annual installments, payable on a monthly basis. Such annual
installments shall be payable using a declining balance method
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 4.4(d) shall be
equal to the balance of the Participant's Individual Account to
be distributed divided by the number of annual 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 Individual
Account due to fluctuations in earnings, gains and losses on the
remaining balance and the number of remaining annual
installments. Monthly installment payments will be made on the
last business day of each calendar month.
4.5 Limitations on the Annual Amount Paid to a Participant.
Notwithstanding any other provisions of this Program to the contrary,
in the event that a portion of the payments due a Participant pursuant
to Sections 4.1, 4.2, 4.3 or 4.4 would not be deductible by the
Corporation pursuant to Section 162(m) of the Code, the Corporation,
at its discretion, may postpone payment of such amounts to the
Participant until such time that the payments would be deductible by
the Corporation; provided, however, that no payment postponed pursuant
to this Section 4.5 shall be postponed beyond the first anniversary of
such Participant's Termination of Service.
4.6 Change of Control and Lump Sum Payments
(a) If there is a Change of Control, notwithstanding any other
provision of this Program, any Participant who has an Individual
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
Individual Account, reduced by a penalty equal to ten percent
(10%) of the Participant's Individual Account as of the last
business day of the month preceding the date of the election.
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 Program, any retired Participant, or
Beneficiary, who has an Individual 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 Individual Account, reduced by a
penalty equal to five percent (5%) of the Participant's
Individual Account as of the last business day of the month
preceding the date of the election. The five percent (5%)
penalty of the retired Participant's or Beneficiary's Individual
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 Participant or Beneficiary, the Program shall remain in
full force and effect.
4.7 Change in Credit Rating and Lump Sum Payments.
In the event the Corporation's financial rating falls below Investment
Grade, a Participant, retired Participant, or Beneficiary may at any
time during a six (6) month period following the reduction in the
Corporation's financial rating, elect to receive an immediate lump sum
payment of the balance of his Individual Account reduced by a penalty
equal to ten percent (10%) of the Participant's Individual Account or
five percent (5%) of the retired Participant's or Beneficiary's
Individual Account as of the last business day of the month preceding
the election. The penalties accrued hereunder shall be permanently
forfeited and shall not be paid to, or in respect of, the Participant,
retired Participant or Beneficiary.
In the event no such request is made by a Participant, retired
Participant or Beneficiary, the Program shall remain in full force and
effect.
4.8 Tax Withholding. To the extent required by law, the Corporation
shall withhold any taxes required to be withheld by any Federal, State
or local government.
4.9 Commencement of Payments. Unless otherwise provided,
commencement of payments under Section 4.6 or 4.7 of this Program
shall be as soon as administratively feasible on or after the last
business day of the month following receipt of notice and approval by
the Committee of an event which entitles a Participant or a
Beneficiary to payments under this Program. Unless otherwise
provided, commencement of payments under Section 4.1, 4.2 or 4.3 of
this Program shall be payable in the first calendar quarter of the
year following the Plan year in which the Participant terminates
employment from the Corporation for any reason; provided, however,
that such a termination shall not be deemed to occur until immediately
following the receipt of all payment due to the Employee under the
Scott Paper Company Termination Pay Plan for Salaried Employees.
4.10 Recipients of Payments; Designation of Beneficiary. All payments
to be made by the Corporation under the Program 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 Program shall be made by the Corporation 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 a married Participant designates a
Beneficiary or Beneficiaries other than his spouse at the time of such
designation, such designation shall not be effective (and the
Participant's spouse shall be the Beneficiary) unless:
(a)the spouse consents in writing to such designation;
(b)the spouse's consent acknowledges the effect of such designation,
which consent shall be irrevocable; and
(c)the spouse executes the consent in the presence of either a Plan
representative designated by the Committee or a notary public.
Notwithstanding the foregoing, such consent shall not be required if
the Participant establishes to the satisfaction of the Committee that
such consent cannot be obtained because (i) there is no spouse; (ii)
the spouse cannot be located after reasonable efforts have been made;
or (iii) other circumstances exist to excuse spousal consent as
determined by 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.
ARTICLE 5
Vesting
5.1 The balance of a Participant's Individual Account shall be 100%
vested at the same time as if the amounts had been credited to the
Participant's Account under the RCP.
ARTICLE 6
Funding
6.1 The Board may, but shall not be required to, authorize the
establishment of a trust by the Corporation to serve as the funding
vehicle for the benefits described herein. In any event, the
Corporation's obligations hereunder shall constitute a general,
unsecured obligation, payable solely out of its general assets, and no
Participant shall have any right to any specific assets of the
Corporation.
ARTICLE 7
Administration
7.1 The Committee shall administer this Program and shall have the
same powers and duties, and shall be subject to the same limitations
as are set forth in the Kimberly-Clark Corporation Salaried Employees
Incentive Investment Plan.
ARTICLE 8
Amendment and Termination
8.1 The Corporation, by action of the Board, or the Compensation
Committee as designated by the Board, shall have the right at any time
to amend this Program in any respect, or to terminate this Program;
provided, however, that no such amendment or termination shall operate
to reduce the benefit that has accrued for any Participant who is
participating in the Program nor the payment due to a terminated
Participant at the time the amendment or termination is adopted.
Continuance of the Program is completely voluntary and is not assumed
as a contractual obligation of the Corporation. Notwithstanding the
foregoing, this Program shall terminate when the RCP terminates.
Any action permitted to be taken by the Board, or the Compensation
Committee as designated by the Board, under the foregoing provision
regarding the modification, alteration or amendment of the Program may
be taken by the Committee, using its prescribed procedures, if such
action
(a) is required by law, or
(b) is estimated not to increase the annual cost of the Program
by more than $1,000,000.
Any action taken by the Board, the Compensation Committee as
designated by the Board, or Committee shall be made by or pursuant to
a resolution duly adopted by the Board, the Compensation Committee as
designated by the Board, or Committee and shall be evidenced by such
resolution or by a written instrument executed by such persons as the
Board, the Compensation Committee as designated by the Board, or
Committee shall authorize for such purpose.
The Committee shall report to the Chief Executive Officer of the
Corporation before January 31 of each year all action taken by it
hereunder during the preceding calendar year.
ARTICLE 9
Miscellaneous
9.1 Nothing contained herein (a) shall be deemed to exclude a
Participant from any compensation, bonus, pension, insurance,
termination pay or other benefit to which he otherwise is or might
become entitle to as an Employee or (b) shall be construed a
conferring upon an Employee the right to continue in the employ of the
Corporation as an executive or in any other capacity; provided,
however, that if, at the time payments or installments of payments are
to be made hereunder, the Participant or the Beneficiary are indebted
or obligated to the Corporation, then the payments remaining to be
made to the Participant or the Beneficiary may, at the discretion of
the Corporation, be reduced by the amount of such indebtedness or
obligation, provided, however, that an election by the Corporation not
to reduce any such payment or payments shall not constitute a waiver
of its claim for such indebtedness or obligation.
9.2 Any amounts payable by the Corporation hereunder shall not be
deemed salary or other compensation to a Participant for the purposes
of computing benefits to which the Participant may be entitled under
any other arrangement established by the Corporation for the benefit
of its Employees.
9.3 The rights and obligations created hereunder shall be binding on
a Participant's heirs, executors and administrators and on the
successors and assigns of the Corporation.
9.4 The Program shall be construed and governed by the laws of the
State of Wisconsin.
9.5 The rights of any Participant under this Program are personal and
may not be assigned, transferred, pledged or encumbered. Any attempt
to do so shall be void.
9.6 Neither the Corporation, its Employees, agents, any member of the
Board, the Plan Administrator nor the Committee shall be responsible
or liable in any manner to any Participant, Beneficiary, or any person
claiming through them for any benefit or action taken or omitted in
connection with the granting of benefits, the continuation of benefits
or the interpretation and administration of this Program.
9.7 An application or claim for a benefit under the RCP shall
constitute a claim for a benefit under this Program.
9.8 The Corporation is the plan sponsor. All actions shall be taken
by the Corporation in its sole discretion, not as a fiduciary, and
need not be applied uniformly to similarly situated individuals.
IN WITNESS WHEREOF, the Corporation has adopted this Kimberly-Clark
Corporation Retirement Contribution Excess Benefit Program effective
as of January 1, 1997.
KIMBERLY-CLARK CORPORATION
By:__________________________________
Wayne R. Sanders
Chairman of the Board and
Chief Executive Officer