Exhibit (10)
OWENS CORNING DEFERRED COMPENSATION PLAN
Effective as of January 1, 1999
ARTICLE I
ESTABLISHMENT AND PURPOSE OF THE PLAN
1.1 Establishment of the Plan. Effective as of January 1,
1999, Owens Corning hereby establishes the "Owens Corning
Deferred Compensation Plan."
1.2 Purpose of the Plan. The Plan is intended to
constitute an unfunded program maintained primarily for the
purpose of permitting a select group of management or highly
compensated employees to defer compensation in a manner
consistent with the requirements of Sections 201(2), 301(a)(3),
and 401(a)(1) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA").
ARTICLE II
DEFINITIONS
The following words and phrases as used in this Plan have
the following meanings:
2.1 Account. The term "Account" means the bookkeeping
account established by the Employer for each Eligible Employee to
which all deferrals and Investment Returns shall be credited.
2.2 Administrator. The term "Administrator" means the
individual described in Section 7.1 who is designated to
administer the Plan.
2.3 Affiliated Employer. The term "Affiliated Employer"
shall have the same meaning given to such term by the Owens
Corning Savings and Profit Sharing Plan.
2.4 Beneficiary. The term "Beneficiary" means the Eligible
Employee's beneficiary under the Owens Corning Savings and Profit
Sharing Plan.
2.5 Board of Directors. The term "Board of Directors"
means the Board of Directors of Owens Corning.
2.6 Code. The term "Code" means the Internal Revenue Code
of 1986, as amended.
2.7 Eligible Employee. The term "Eligible Employee" means
an individual who meets the requirements of Section 3.1.
2.8 Employer. The term "Employer" means Owens Corning and
any other Affiliated Employer that has adopted the Owens Corning
Savings and Profit Sharing Plan or has been designated by the
Board of Directors.
2.9 Investment Returns. The term "Investment Returns"
means the earnings and losses credited to an Eligible Employee's
Account in accordance with Section 3.6.
2.10 Plan. The term "Plan" means the "Owens Corning
Deferred Compensation Plan" as set forth herein and as amended
from time to time.
ARTICLE III
COMPENSATION DEFERRALS
3.1 Eligible Employees. An individual is an Eligible
Employee if he or she is a member of a select group of management
or highly compensated employees of an Employer, and he or she --
(1) is an elected officer or appointed officer of Owens
Corning, or
(2) is a key employee of an Employer and is designated for
participation in the Plan by the Compensation Committee
of the Board of Directors.
3.2 Deferrals of Cash Compensation. An Eligible Employee
may elect, by submitting to the Administrator a properly
completed Deferral Election Form (in the form attached hereto as
Exhibit A), to defer the receipt of up to 50% of cash salary and
up to 100% of bonus compensation earned for services rendered to
the Employer during a calendar year. Eligible employees may also
be required to defer certain compensation as directed by the
Compensation Committee of the Board of Directors, subject to the
terms and conditions of the Plan and the underlying grant or
award. Thus, Eligible Employees may receive awards of incentive
pay that have special deferral terms and conditions that require
the deferral of that award (or a portion thereof) for a specified
period of time subject to special vesting and forfeiture
provisions.
3.3 Timing for Elections. Deferral Election Forms may be
submitted on an annual basis, with a properly submitted deferral
election becoming effective, to the extent administratively
practicable, for compensation earned on or after the January 1
which next follows the acceptance of the Deferral Election Form
by the Administrator; provided, however, that within 30 days of
first becoming an Eligible Employee, such Eligible Employee may
submit a Deferral Election Form and such election shall be
effective as soon as administratively practicable. Elections
with regard to Investment Returns and the time and manner of
payment of deferred amounts are one-time elections with regard to
amounts deferred pursuant to a particular Deferral Election Form.
A Deferral Election Form shall remain effective until a
superseding Deferral Election Form becomes effective. An
Eligible Employee may cease voluntary salary deferrals at any
time by submitting a properly completed Deferral Election Form to
the Administrator, which shall be effective for compensation
earned after the effective date of the election. Notwithstanding
the foregoing, a Participant may not make deferrals under this
Plan during any period for which contributions must be suspended
as a condition of the Eligible Employee's receipt of a hardship
withdrawal from the Owens Corning Savings and Profit Sharing Plan
or any other plan maintained by Owens Corning or an Affiliated
Employer that includes a qualified cash or deferred arrangement
under Code section 401(k).
3.4 Deferred Compensation Accounts. For the purpose of
determining liabilities under the Plan, the Employer shall
maintain an Account for each Eligible Employee. An Eligible
Employee's Account shall be credited with amounts deferred by the
Eligible Employee pursuant to the Plan and any Investment Returns
thereon.
3.5 Investment Returns. The Investment Return on an
Eligible Employee's Account shall be the amount necessary to
increase or decrease the Account to the amount it would have been
if it were invested in accordance with this Section. Investment
Returns for cash amounts deferred pursuant to Section 3.2 hereof
shall be determined as if such amounts were invested, at the
Eligible Employee's election pursuant to the Deferral Election
Form, in a fund invested in Owens Corning stock or an account
bearing interest at an annual effective rate equal to the prime
rate of interest quoted in the Wall Street Journal for the first
business day of the applicable calendar year. Notwithstanding
the foregoing, the Employer shall be under no obligation to make
any investments in accordance with the investment election of any
Eligible Employee.
ARTICLE IV
FORFEITURE OF INVESTMENT RETURNS
4.1 Disclosure of Proprietary Information. The Investment
Returns otherwise payable (other than net losses) under the terms
of this Plan shall be forfeited and the Employer and the Plan
shall have no liability for Investment Returns to an Eligible
Employee (or his or her Beneficiary) if the Eligible Employee
discloses, divulges, publishes or otherwise reveals either
directly or through another, to any person, firm or corporation,
any knowledge or information concerning any Employer or
Affiliated Employer inventions, devices, technical data,
strategic plans (business and technical), or financial data
(including any data classified as "Secret and Proprietary
Information"), which knowledge or information has in any way been
disclosed to or acquired by the Eligible Employee during the term
of his or her employment with the Employer or an Affiliated
Employer. Such knowledge or information shall not include
knowledge or information which:
(1) is or was in the public domain at the time of its
disclosure to the Eligible Employee; or,
(2) enters the public domain after the date of
disclosure to the Eligible Employee except where such
entry is a result of a breach by the Eligible Employee
of this Section; or,
(3) is disclosed to the Eligible Employee by a third
party having a bona fide right to make such disclosure,
or is otherwise lawfully obtained from other sources;
or,
(4) is disclosed to others by the Employer or
Affiliated Employer without restriction.
4.2 Direct Competition with the Employer or an Affiliated
Employer. The Investment Returns payable under the terms of this
Plan (other than net losses) shall be forfeited and the Employer
and the Plan shall have no further liability to an Eligible
Employee if said Eligible Employee directly or indirectly, in any
capacity, performs any compensated service for, is employed by or
becomes associated with any firm, corporation or partnership
engaged in the manufacture, production or sale of products which
compete with products produced or sold by the Employer or an
Affiliated Employer. For the purposes of this Plan, products
shall be limited to these which are manufactured, produced or
sold by the Employer or an Affiliated Employer as described in
the Employer's or Affiliated Employer's most recent Annual Report
to its stockholders.
4.3 Discharge for Just Cause. The Investment Returns
otherwise payable under the terms of this Plan (other than net
losses) shall be forfeited and the Employer and the Plan shall
have no further liability if the employment of said Eligible
Employee by the Employer or Affiliated Employer is terminated or
otherwise ceases for "Just Cause". "Just Cause" shall mean
discharge or resignation as the direct result of any act or
omission which constitutes a misdemeanor or a felony, or which
clearly evidences fraud or dishonesty on the part of the Eligible
Employee.
4.4 Involuntary Deferrals. For grants or awards of
compensation that require deferral in whole or in part as a
condition of the grant or award, the vesting and forfeiture
provisions established by the Compensation Committee for purposes
of such grant or award will apply to such grant or award in
addition to the provisions hereof and will result in forfeiture
of the award and its Investment Returns unless fully satisfied by
the Eligible Employee.
ARTICLE V
PAYMENT OF ACCOUNT
5.1 Payment to Eligible Employee. An Eligible Employee
shall be eligible to receive distribution of vested amounts in
his or her Account in the manner specified in his or her Deferral
Election Forms. Distribution of an Eligible Employee's Account
shall be made in one of the following forms: (1) lump sum payment
on a date certain, (2) lump sum payment upon the Eligible
Employee's termination of employment, or (3) payment of up to 10
substantially equal annual installments beginning either upon a
date certain or as soon as administratively practicable following
the date of the Eligible Employee's termination of employment,
with annual installments payable on each anniversary of such
date; provided, any remaining Account balance upon the tenth
anniversary of an Eligible Employee's termination of employment
shall be distributed in a lump sum as soon as is administratively
practicable thereafter.
5.2 Payment upon Death of Eligible Employee. In the event
of the death of the Eligible Employee, the vested balance of the
Eligible Employee's Account shall be payable to the Eligible
Employee's Beneficiary in a lump sum.
5.3 Form of Payment. All amounts shall be paid in cash.
5.4 Payment in the Event of Unforeseeable Emergency. An
Eligible Employee may request a distribution of amounts
voluntarily deferred in the event of an unforeseeable emergency,
up to but not exceeding the amount reasonably needed to satisfy
the emergency. For the purposes of this paragraph, an
"unforeseeable emergency" means severe financial hardship to the
Eligible Employee resulting from a sudden and unexpected illness
or accident of the Eligible Employee or of a dependent, loss of
the Eligible Employee's property due to casualty, or other
similar extraordinary and unforeseeable circumstances arising as
a result of events beyond the control of the Eligible Employee.
Notwithstanding the foregoing, payment may not be made to the
extent the unforeseeable emergency may be or is relieved by
insurance, liquidation of the Eligible Employee's assets
(provided such liquidation does not cause severe financial
hardship), or by cessation of deferrals under this Plan.
Unforeseeable emergencies do not include the need or desire to
send a child to college or to purchase a home. Whether an
unforeseeable emergency exists shall be determined by the
Administrator in his or her sole discretion. The Administrator
may require such documentation from the Eligible Employee as the
Administrator deems necessary to substantiate a request for
distribution due to an unforeseeable emergency.
ARTICLE VI
NATURE OF INTEREST OF ELIGIBLE EMPLOYEE
6.1 Unsecured General Creditor. The interests of Eligible
Employees and Beneficiaries in the Plan shall be that of
unsecured general creditors, with no secured or preferential
right to any assets of Owens Corning or any Employer, Affiliated
Employer, or any other party for payment of benefits under this
Plan. Any property held by Owens Corning or any Employer for the
purpose of generating the cash flow for benefit payments shall
remain its general, unpledged and unrestricted assets. Any
Employer's obligation under the Plan shall be an unfunded and
unsecured promise to pay benefits in the future.
6.2 Trust Fund. Each Employer shall be responsible for the
payment of benefits provided under the Plan to its Eligible
Employees. At its discretion, the Employer may establish one or
more trusts, with such trustees as the Board of Directors may
approve, for the purpose of providing for the payment of such
benefits. Any trustee so appointed shall be bonded in a manner
satisfactory to the Employer. Whether or not such a trust is
irrevocable, its assets shall at all times be subject to the
claims of the Employer's general creditors in the event of the
Employer's insolvency. To the extent any benefits provided under
the Plan are paid from such trust, the Employer shall have no
further obligation to pay Plan benefits. Plan benefits not paid
from the trust shall remain the obligation of the Employer.
6.3 Change of Control. In the event of a "Change of
Control" as defined in the Owens Corning Stock Performance
Incentive Plan, Owens Corning (or its successor in interest)
shall contribute an amount equal to the value of all Eligible
Employees' Accounts under the Plan to an irrevocable trust within
10 days of such Change of Control. The terms of such trust shall
be consistent with Internal Revenue Service Revenue Procedure 92-
64 (as modified or superseded by the Internal Revenue Service),
and the trustee the shall be an independent third party financial
institution.
6.4 No Right to Transfer Interest. Rights to benefits
payable under the Plan are not subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, or
encumbrance.
ARTICLE VII
ADMINISTRATION
7.1 Administrator. (a) Except as provided in (b) below,
the Plan shall be administered by the Leader, Compensation, at
Owens Corning, or by the individual who holds the functional
equivalent of such position.
(b) The Senior Vice President, Strategic Resources of
Owens Corning shall be the Administrator with respect to any
matters involving the participation in this Plan of the
individual described in (a) above.
7.2 Powers of the Administrator. The Administrator's
powers shall include, but shall not be limited to, the power to
adopt rules consistent with the Plan; the power to decide all
questions relating to the interpretation of the terms and
provisions of the Plan; the power to resolve all other questions
arising under the Plan (including, without limitation, the power
to remedy possible ambiguities, inconsistencies, or omissions by
a general rule or particular decision); and the power to
designate all or a part of the previously described powers to
another employee of Owens Corning. The Administrator shall have
full and absolute discretion and authority to exercise each of
the foregoing powers.
7.3 Finality of Administrator Determinations. Deter
minations by the Administrator and any interpretation, rule, or
decision adopted by the Administrator under the Plan or in
carrying out or administering the Plan shall be final and binding
for all purposes and upon all interested persons, their heirs,
and their personal representatives.
ARTICLE VIII
MISCELLANEOUS
8.1 Amendment, Suspension, and Termination. (a) The
Board of Directors shall have the right to amend, suspend, or
terminate the Plan at any time.
(b) The Vice President of Human Resources of Owens
Corning, or the individual who holds the functional equivalent of
such position, may adopt minor amendments to the Plan without
prior approval of the Board of Directors that (i) are necessary
or advisable for purposes of compliance with applicable laws and
regulations, (ii) relate to administrative practices, or (iii)
have an insubstantial financial effect on Plan benefits and
expenses.
8.2 Board of Directors' Power to Delegate Authority. The
Board of Directors may, in its discretion, delegate to any person
or persons all or any part of the Board's authority and
responsibility under the Plan, including, without limitation, the
authority to amend the Plan.
8.3 Indemnification. Owens Corning shall indemnify any
individual who is a director, officer or employee of an Employer,
or his or her heirs and legal representatives, against all
liability and reasonable expense, including counsel fees, amounts
paid in settlement and amounts of judgments, fines or penalties,
incurred or imposed upon him or her in connection with any claim,
action, suit or proceeding, whether civil, criminal,
administrative or investigative, in connection with his or her
duties under the Plan, provided that such act or omission does
not constitute gross negligence or willful misconduct.
8.4 No Employment Rights. No provisions of the Plan or any
action taken by an Employer, the Board of Directors, or the
Administrator shall give any person any right to be retained in
the employ of an Employer, and each Employer specifically
reserves the right and power to dismiss or discharge any Eligible
Employee.
8.5 Incapacity of Recipient. If an Eligible Employee or
Beneficiary entitled to a distribution under the Plan is living
under guardianship or conservatorship, distributions payable
under the terms of the Plan to such recipient shall be paid to
the appointed guardian or conservator and such payment shall be a
complete discharge of any liability of all Employers.
8.6 Data. Each Eligible Employee and Beneficiary shall
furnish the Employer with all proofs of date of death and other
proofs necessary for the administration of the Plan, and no
Employer shall be liable for the fulfillment of any obligations
in any way dependent upon such information unless and until the
same shall have been received by the Employer in form
satisfactory to it.
8.7 Misstatements. If any relevant fact relating to any
person is found to have been misstated, the benefit payable to an
Eligible Employee or Beneficiary shall be the benefit which would
have been provided on the basis of the correct information. Any
excess payments due to such misstatement shall be refunded to the
Employer or withheld by it from any further amounts otherwise
payable, and any underpayment shall be paid to the Eligible
Employee or Beneficiary as soon as administratively practicable.
8.8 Taxes. To the extent required by law, amounts credited
under the Plan shall be subject to Federal social security and
unemployment taxes during the year the services giving rise to
such contributions were performed (or, if later, when the amounts
are not subject to a substantial risk of forfeiture). Federal
social security and unemployment taxes shall be withheld from
current compensation otherwise payable to the Eligible Employee.
Each Employer shall withhold from any distributions made pursuant
to the Plan such amounts as may be required by Federal, state or
local law.
8.9 Applicable Law. The Plan shall be construed and
administered under the laws of the State of Ohio, except to the
extent that such laws are preempted by ERISA.
8.10 Usage of Terms and Headings. Words in the masculine
gender shall include the feminine and the singular shall include
the plural, and vice versa, unless qualified by the context. Any
headings are included for ease of reference only, and are not to
be construed to alter the terms of the Plan.