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EXHIBIT 10(d)
ONEIDA LTD.
EMPLOYEE SECURITY PLAN
Oneida Ltd. hereby adopts the Oneida Ltd. Employee
Security Plan for the benefit of certain employees of the
Company, its affiliates and subsidiaries, on the terms and
conditions hereinafter stated.
The Plan, as set forth herein, is intended to help
retain qualified employees, maintain a stable work environment
and provide economic security to certain Employees of the
Employer in the event of a Severance of employment under the
enumerated circumstances. The Plan, as a "severance pay
arrangement" within the meaning of Section 3(2)(B)(i) of
ERISA, is intended to be excepted from the definitions of
"employee pension benefit plan" and "pension plan" set forth
under Section 3(2) of ERISA, and is intended to meet the
descriptive requirements of a plan constituting a "severance
pay plan" within the meaning of regulations published by the
Secretary of Labor at Title 29, Code of Federal Regulations,
Section 2510.3-2(b).
SECTION 1. Definitions. As used herein:
1.1 "Board" means the Board of Directors of the Company.
1.2 A "Chance in Control" of the Company shall be
deemed to have occurred if:
(a) any "person," as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (other than the Company, any
trustee or other fiduciary holding securities under an
employee benefit plan of the Company, or any company owned,
directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock
of the Company), is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 20% or
more of the combined voting power of the Company's then
outstanding securities;
(b) during any period of two consecutive years (not
including any period prior to the Effective Date), individuals
who at the beginning of such period constitute the Board, and
any new director (other than a director designated by a person
who has entered into an agreement with the Company to effect a
transaction described in clause (a), (c) or (d) of this
Section) whose election by the Board or nomination for
election by the Company's stockholders was approved by a vote
of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the
period or whose election or nomination for election was
previously so approved, cease for any reason to constitute at
least a majority thereof;
(c) the stockholders of the Company approve a merger
or consolidation of the Company with any other company, other
than (1) a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of
the surviving entity) more than 50% of the combined voting
power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation or (2) a merger or consolidation effected to
implement a recapitalization of the Company (or similar
transaction) in which no "person" (as hereinabove defined)
acquires more than 20% of the combined voting power of the
company's then outstanding securities; or
(d) the stockholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all
of the Company's assets.
1.3 "Code" means the Internal Revenue Code of 1986, as it
may be amended from time to time.
1.4 "Company" means Oneida Ltd. or any successors
thereto.
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1.5 "Effective Date" means July 26, 1989.
1.6 An "Employee" means a person who is an active,
full-time employee of an Employer, excluding any employee who
is included in a unit of employees covered by a negotiated
collective bargaining agreement which does not provide for his
or her participation in the Plan. A director of the Company is
not eligible for participation in the Plan unless he or she is
also an Employee. Notwithstanding the foregoing, any person
who has entered into a written agreement with the Company or
an Employer that provides for the payment of benefits in the
event of the termination of such person's employment following
a Change in Control of the Company or Recapitalization shall
not be considered an Employee for purposes of this Plan.
1.7 "Employer" means the Company and such subsidiaries or
affiliates of the Company as authorized and approved by the
Board and listed on Annex I hereto.
1.8 "ERISA" means the Employee Retirement Income Security
Act of 1974, as it may be amended from time to time.
1.9 "Hours of Service" means hours during which an
Employee performs service for which he or she is directly or
indirectly paid or entitled to pay (including any back pay
irrespective of mitigation of damages).
1.10 "Mandatory Retirement Age" means the age at which
the Employer may legally require an Employee to retire. An
Employee who has served for a minimum of two (2) years at a
high level executive or high policy-making position and who is
entitled to a nonforfeitable immediate annual
Employer-provided retirement benefit, from any source, which
is at least equal to a benefit, computed as a life annuity, of
$44,000 per year (or such other as may be provided by future
legislation) attains Mandatory Retirement Age at age
sixty-five (65), unless otherwise provided by law.
1.11 "Pay" means all compensation, including salary,
wages, fees, commissions, profit-sharing bonus and overtime
pay, paid to the Employee for personal services actually
rendered to the Company or the Employer as reported on the
Employee's IRS Form W-2 for the tax year out of the three tax
years immediately prior to a Change in Control of the Company
or Recapitalization in which the Employee's W-2 amount was the
highest, and including the amount of any elective deferrals
contributed on behalf of such Employee to a cash or deferred
arrangement maintained by the Company or any affiliate of the
Company under Section 401(k) of the Code. A "Month of Pay"
shall be equal to one twelfth (1/12) of Pay.
1.12 The "Plan" means the Oneida Ltd. Employee Security
Plan, as set forth herein, as may be amended from time to
time.
1.13 The "Plan Administrator" means an administrative
committee appointed by the Board and acting in accordance with
the terms of the Plan. Such committee shall consist of at
least three members who are active Employees, including the
Vice President of Human Resources of the Company.
1.14 "Recapitalization" means a transaction approved by
the Board involving a special distribution in respect of
shares of Common Stock, par value $6.25 per share, of the
Company or a similar transaction designated by the Board as a
Recapitalization for purposes of the Plan.
1.15 "Service" means active, full-time employment with
the Company or an Employer and, to the extent and for the
purposes determined by the Plan Administrator under rules
uniformly applicable to all Employees similarly situated,
shall include (i) periods of vacation, (ii) periods of paid
layoff, (iii) periods of absence authorized by the Company or
an Employer for sickness, temporary disability or personal
reasons, (iv) if and to the extent required by the Military
Selective Service Act as amended or any other Federal law,
service in the Armed Forces of the United States and (v) such
other periods as the Plan Administrator shall specify in such
rules.
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1.16 "Severance" means the termination of an Employee's
employment with the Employer within two (2) years following a
Change in Control or Recapitalization, (i) by the Employer
other than for Cause, or (ii) by the Employee for Good Reason.
Notwithstanding the foregoing, an Employee will not be
considered to have incurred a Severance (i) if his or her
employment is discontinued by reason of the Employee's
voluntary or Mandatory Retirement, the Employee's death or a
physical or mental condition causing the Employee's inability
to substantially perform his or her duties with the Employer,
including without limitation, such condition entitling him or
her to benefits under any sick pay or disability income policy
or program of the Employer, (ii) if his or her employment is
temporarily discontinued by reason of a temporary lay-off for
a period of less than six months or (iii) by reason of the
divestiture of a facility or subsidiary of the Employer in
which the Employee works if the Employee is offered comparable
employment by the successor company and the successor company
assumes the Employer's responsibilities under the Plan with
respect to such Employee. For purposes of the Plan, "Cause"
means (i) an Employee's willful and continued failure to
substantially perform his duties with the Employer, (ii) an
Employee's willful engagement in conduct which is demonstrably
and materially injurious to the Employer, monetarily or
otherwise (provided, however, that no act, or failure to act,
on an Employee's part shall be deemed "willful" unless done,
or omitted to be done, by the Employee not in good faith and
without reasonable belief that such action or omission was in
the best interest of the Employer) or (iii) an Employee's
material failure to comply with the work rules or policies of
the Company or the Employee's Employer. For the purposes of
the Plan, "Good Reason" means (i) the Employer's seeking the
transfer of the Employee to another Employer facility more
than 25 miles from the Employee's then current place of
employment, (ii) a reduction by the Employer in the Employee's
Pay or benefits, including, without limitation, retirement and
health and welfare benefits or (iii) a change in the
Employee's duties or responsibilities in the nature of a
demotion (other than for Cause).
1.17 "Severance Date" means the date after the Effective
Date on which an Employee incurs a Severance.
1.18 "Severance Pay" means payments made to eligible
Employees pursuant to Section 3.1 hereof.
1.19 "Year of Service" means, with respect to any
Employee, each calendar year during which the Employee
completes at least 1,000 Hours of Service. In addition, if an
Employee does not complete 1,000 Hours of Service during the
calendar year in which his or her Service commences, but does
complete at least 1,000 Hours of Service during the
12-consecutive month period beginning on the date the
Employee's Service commenced, as determined by the Plan
Administrator, then, for purposes of determining when an
Employee shall be eligible to participate in the Plan as
provided in Section 2, he or she shall be credited with a Year
of Service for such 12-consecutive month period.
SECTION 2. Eligibility.
2.1 Notwithstanding any provision to the contrary
contained herein, each Employee shall be eligible to
participate in the Plan upon completion of one Year of
Service.
SECTION 3. Benefits.
3.1 Each Employee who incurs a Severance shall be
entitled to receive a one-time Severance Pay equal to 2-1/2
Months of Pay for each year of Service, up to a maximum amount
of 24 Months of Pay.
3.2 Severance Payments will be made to an eligible
severed Employee in one lump sum on the second pay day
following the Severance Date.
3.3 Health care benefits and life insurance benefits
will be continued (at the active employee rate) for a severed
Employee for the number of months determined in Section 3.1
above, but not after he or she becomes an employee of another
employer and covered under another group health or group life
plan, respectively.
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3.4 In the event of a claim by an Employee as to the
amount of any distribution or its method of payment, such
Employee shall present the reason for his or her claim in
writing to the Plan Administrator. The Plan Administrator
shall, within sixty (60) days after receipt of such written
claim, send a written notification to the Employee as to its
disposition. In the event the claim is wholly or partially
denied, such written notification shall (a) state the specific
reason or reasons for the denial, (b) make specific reference
to pertinent Plan provisions on which the denial is based, (c)
provide a description of any additional material or
information necessary for the Employee to perfect the claim
and an explanation of why such material or information is
necessary, and (d) set forth the procedure by which the
Employee may appeal the denial of his claim. In the event an
Employee wishes to appeal the denial of his claim, he or she
may request a review of such denial by making application in
writing to the Plan Administrator within sixty (60) days after
receipt of such denial. Such Employee (or his or her duly
authorized legal representative) may, upon written request to
the Plan Administrator, review any documents pertinent to his
or her claim, and submit in writing issues and comments in
support of his or her position. Within sixty (60) days after
receipt of a written appeal (unless special circumstances,
such as the need to hold a hearing, require an extension of
time, but in no event more than one hundred twenty (120) days
after such receipt), the Plan Administrator shall notify the
Employee of the final decision. The final decision shall be in
writing and shall include specific reasons for the decision,
written in a manner calculated to be understood by the
claimant, and specific references to the pertinent Plan
provisions on which the decision is based.
3.5 The Company will pay to each Employee all legal fees
and expenses incurred by such employee in seeking to obtain or
enforce any right or benefit provided under this Plan (other
than any such fees and expenses incurred in pursuing any claim
determined to be frivolous by a court of competent
jurisdiction).
SECTION 4. Limitation on Severance Payments.
4.1 Notwithstanding any provision in this Plan or in any
other agreement, commitment, arrangement or plan regarding
payments or transfers of property to an Employee to the
contrary, the aggregate of all Severance Payments to an
Employee under this Plan and all other agreements and
arrangements with, and plans of, the Employer shall be reduced
by such amount as may be necessary so that no Payment, either
alone or when taken together with all other Payments, results
in the failure of any Payment, or any other amount paid or
property transferred to, or for the benefit of, an Employee,
to be allowed as a deduction to the Company on its Federal
income tax return under Code Section 280G; provided, however,
that no provision of this Plan shall be deemed to prohibit or
restrict any Payment, or any payment or transfer of property,
to an Employee pursuant to an Employee Benefit Plan.
4.2 Promptly, and in any event within 10 days before any
Severance Payment is due, the Company shall determine whether
any Payment, or any portion thereof, payable to, or for the
benefit of, an Employee would result in the failure of any
Payment, or any other amount paid or property transferred to,
or for the benefit of, an Employee, to be allowed as a
deduction to the Company on its Federal income tax return
under Code Section 280G, and shall immediately notify the
Employee of its determination by delivering to the Employee a
statement (the "Statement") which sets out a detailed account
of its determination, including a description of the method by
which the Fair Market Value was assigned in such determination
to any property constituting a Payment. Within 8 days of
delivery of the Statement, and after consulting with the
Employee to determine how the Company can best implement its
obligation to compensate the Employee under the terms of this
Plan, the Company shall reduce the Severance Payment under the
Plan by the amount described in Section 4.1.
4.3 In the event the Employee disputes a determination
reflected in the Statement, including the assignment of a Fair
Market Value to any property constituting a Payment, the
Employee shall promptly notify the Company in writing, and the
parties shall use their best efforts to resolve such dispute.
If no resolution has been reached within 2 days of receipt of
the notice of such dispute, the dispute shall be referred to
an Independent Auditor, whose determination with respect to
such dispute shall be communicated in writing to the parties
within 5 days of the date of such referral. The determination
of the Independent Auditor shall be at the expense of the
Company and shall be conclusive and binding on the parties.
The 8 day time period provided
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in Section 4.2 shall be
suspended and shall not elapse during the period provided for
the resolution of disputes pursuant to this Section 4.3.
4.4 For the purposes of this Section 4, the following
terms shall have the following meanings:
(i) "Affiliate" means any person or entity
affiliated with the Company, including any corporation which
is part of an affiliated or controlled group (or which as a
result of a Change in Control of the Company becomes part of
an affiliated or controlled group) within the meaning of
Sections 1504 or 1563 of the Code;
(ii) "Base Amount" means the Employee's annualized
includible compensation for the base period, determined in
accordance with Code Section 280G. For the purposes of this
Section, "annualized includible compensation for the base
period" means the average annual compensation which (1) was
payable by the Employer to the Employee and (2) was includible
in the gross income of the Employee for the most recent 5
taxable years ending before the date of the Change of
Ownership (or such shorter portion during which the Employee
was an employee of the Employer);
(iii) "Change of Ownership" means a change in the
ownership or effective control of the Company, or in the
ownership of a substantial portion of the assets of the
Company, as determined under Code Section 280G; and the
determination that payments are contingent upon a Change of
Ownership shall be made in accordance with Code Section 280G;
(iv) "Employee Benefit Plan" means an employee
benefit plan as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended, which is
contributed to or maintained by the Employer;
(v) "Fair Market Value" means the value of any
property, determined in accordance with the applicable
provisions of the Code and the rulings and regulations issued
by the Secretary of Treasury or his delegate thereunder, or,
in the absence of such authority, determined by the Board of
Directors of the Company in good faith as reflecting the fair
market value of such property;
(vi) "Independent Auditor" means a nationally
recognized independent auditing firm selected by the Employee;
(vii) "Payments" means any payments or transfers of
property required to be made by the Employer or an Affiliate,
or which would be required to be made by the Employer or an
Affiliate pursuant to an agreement, including this Plan,
commitment or arrangement with, or a plan of, the Employer or
an Affiliate, but for the provisions of this Section 4, in the
nature of compensation to, or for the benefit of, an Employee,
which are contingent on a Change of Ownership to the extent
required to be considered, pursuant to Code Section 280G, in
determining whether a payment is a "parachute payment", as
defined under such Section;
(viii) "Present Value" shall be determined in
accordance with Section 1274(b)(2) of the Code and the rulings
and regulations issued by the Secretary of the Treasury or his
delegate under such Section and Code Section 280G; and
(ix) "Code Section 280G" means Section 280G of the
Code and the rulings and regulations issued by the Secretary
of the Treasury or his delegate under such Section.
4.5 The provisions of this Section 4 shall be
administered in accordance with Code Section 280G.
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SECTION 5. Plan Administration.
5.1 The Plan shall be interpreted, administered and
operated by the Plan Administrator, who shall have complete
authority, in its sole discretion subject to the express
provisions of the Plan, to determine who shall be eligible for
Severance Pay, to interpret the Plan, to prescribe, amend and
rescind rules and regulations relating to it, and to make all
other determinations necessary or advisable for the
administration of the Plan.
5.2 All questions of any character whatsoever arising in
connection with the interpretation of the Plan or its
administration or operation shall be submitted to and settled
and determined by the Plan Administrator in an equitable and
fair manner in accordance with the procedure for claims and
appeals described in Section 3.4. Any such settlement and
determination shall be final and conclusive, and shall bind
and may be relied upon by the Employer, each of the Employees
and all other parties in interest.
5.3 The Plan Administrator may delegate any of their
duties hereunder to such person or persons from time to time
as they may designate.
5.4 The Plan Administrator is empowered, on behalf of the
Plan, to engage accountants, legal counsel and such other
personnel as it deems necessary or advisable to assist it in
the performance of its duties under the Plan. The functions of
any such persons engaged by the Plan Administrator shall be
limited to the specified services and duties for which they
are engaged, and such persons shall have no other duties,
obligations or responsibilities under the Plan. Such persons
shall exercise no discretionary authority or discretionary
control respecting the management of the Plan. All reasonable
expenses thereof shall be borne by the Company.
SECTION 6. Plan Modification or Termination.
6.1 The Plan may be amended or terminated by the Board at
any time; provided, however, that within the two-year period
following a Change in Control or Recapitalization, the Plan
may not be terminated or amended if such amendment would be
adverse to the interests of any Employee.
SECTION 7. General Provisions.
7.1 Nothing in the Plan shall be deemed to give any
Employee the right to be retained in the employ of the
Employer without the Employer's consent, nor to interfere with
the right of the Employer to discharge him or her at any time
and for any lawful reason, with or without cause, with or
without notice.
7.2 Except as otherwise provided herein or by law, no
right or interest of any Employee under the Plan shall be
assignable or transferable, in whole or in part, either
directly or by operation of law or otherwise, including
without limitation by execution, levy, garnishment,
attachment, pledge or in any manner; no attempted assignment
or transfer thereof shall be effective; and no right or
interest of any Employee under the Plan shall be liable for,
or subject to, any obligation or liability of such Employee.
When a payment is due under this Plan to an Employee who is
unable to care for his affairs, payment may be made directly
to his legal guardian or personal representative.
7.3 If an Employer is obligated by law or by contract to
pay severance pay, a termination indemnity, notice pay, or the
like, or if the Employer is obligated by law or by contract to
provide advance notice of separation ("Notice Period"), then
any Severance Pay hereunder shall be reduced by the amount of
any such severance pay, termination indemnity, notice pay or
the like, as applicable, and shall be reduced by the amount of
any compensation received during any Notice Period.
7.4 All payments provided under the Plan shall be paid in
cash from the general funds of the Company, and no special or
separate fund shall be established, and no other segregation
of assets made, to assure payment. Employees shall have no
right, title, or interest whatever in or to any investments
which the Company may make to aid the Company in meeting its
obligations hereunder.
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7.5 If any provision of the Plan shall be held invalid or
unenforceable, such invalidity or unenforceability shall not
affect any other provisions hereof, and the Plan shall be
construed and enforced as if such provisions had not been
included.
7.6 The Plan shall be governed by and construed in
accordance with ERISA and all applicable rules and regulations
thereunder.
7.7 The Plan shall be effective as of the Effective Date
and shall remain in effect unless and until terminated
pursuant to Section 6.1 hereof.
IN WITNESS WHEREOF, the Company has caused the
Plan to be adopted this 26th day of July, 1989.
ONEIDA LTD.
By: /s/ M. Jack Rudnick
WITNESS:
/s/ Sandra C. Britton
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ANNEX I
Camden Wire Co., Inc.
Buffalo China, Inc.
Kenwood Silver Company, Inc.
Oneida Canada, Limited