Exhibit 10
SPARTECH CORPORATION
NON-QUALIFIED DEFERRED COMPENSATION PLAN
This plan document executed as of December , 1994 by
Spartech.
WITNESSETH:
WHEREAS, Spartech wants to provide certain Key Executive
Employees through the Plan with additional retirement benefits to
encourage their continued employment with Spartech.
WHEREAS, the adoption and execution of this Plan has been
approved by board of directors of Spartech.
NOW, THEREFORE, Spartech adopts this Plan effective
January 1, 1994, to wit:
Article 1. DEFINITIONS
1.1 Affiliated Company: Any corporation which is a member
of the same controlled group of corporations, as determined by
Section 1563(a) [without regard to Sections 1563(a)(4) and
(4)(3)(C)] of the Internal Revenue Code of 1986, as amended, of
which Spartech is a member.
1.2 Beneficiary: Any person, corporation or trust last
designated by a Participant in writing to receive benefits
provided under this Plan. If no designation is made, or if such
person predeceases the Participant, the Beneficiary shall be the
Participant's Spouse, if such Spouse survives the Participant.
If the Spouse does not survive the Participant, the benefits
shall pass to the Participant's descendants, per stirpes
(including adopted children). If no descendants survive the
Participant, such benefits shall pass to the Participant's
estate.
1.3 Compensation: With respect to any Participant, the
total amount shown as Internal Review Services Form W-2 for a
calendar year as compensation for Federal income tax purposes;
however, a Participant's Compensation for calendar year in excess
of $150,000 shall be disregarded.
1.4 Deferred Compensation Account: The balance credited to
the Deferred Compensation Account, as described in Section 5.1 as
of any date.
1.5 Board: The board of directors of Spartech Corporation,
a Delaware corporation.
1.6 Key Executive Employee: A person who serves as a
managerial Employee of Spartech.
1.7 Participant: A Key Executive Employee recommended and
approved to receive the benefits pursuant to this Plan as set
forth in Article 6 hereof.
1.8 Permanent Disability: A physical or mental condition
of a Participant resulting from injury, disease, or mental
disorder which renders him incapable of continuing his usual and
customary employment with Spartech. The disability of a
Participant shall be determined by a licensed physician chosen by
the Board. The determination shall be applied uniformly to all
Participants.
1.9 Plan: This Spartech Corporation Non-Qualified Deferred
Compensation Plan.
1.10 Spouse: The person, if any, to whom the Participant is
legally married at the time of his death.
1.11 Spartech: Spartech Corporation, a Delaware
corporation.
1.12 Trustee: The person or entity named as trustee under
the Trust.
1.13 Trust: The Spartech Corporation Non Qualified Deferred
Compensation Trust.
1.14 Year of Service: A Key Executive Employee's
anniversary year of employment with Spartech or an Affiliated
Company during which he was employed for six months or more;
provided, however, that a Key Executive's anniversary year of
employment commencing before January 1, 1994 shall not be
considered a Year of Service.
Article 2. ADMINISTRATION
2.1 The Board shall administer this Plan. The Board shall
adopt such uniform and nondiscriminatory regulations as it shall
deem necessary or appropriate for the administration of this
Plan. The Board shall have the full power and authority to
resolve all questions and issues interpreting the terms and
conditions of this Plan which may arise hereunder. The Board may
delegate one or more of its duties or responsibilities to other
individuals.
2.2 The Board shall determine the facts required in the
administration of this Plan from information certified to the
Board by the Secretary of Spartech.
2.3 The Board shall compute the benefit payable, as
provided in this Plan, to Participants or their Beneficiaries
under this Plan.
2.4 Any denial, in whole or in part, by the Board of a
claim for benefits under the Plan by a Participant or a
Beneficiary shall be by written notice, stating the specific
reasons for the denial which must be referable to a particular
provision of this Plan, said notice to be delivered or mailed to
the Participant or, if no Participant is living, to his
Beneficiary. The Board shall afford a reasonable opportunity to
any Participant or Beneficiary whose claim for benefits has been
denied, in whole or in part, for a hearing concerning any
decision denying the claim.
2.5 The Board shall keep a record of all proceedings and
shall maintain or cause to be maintained all books of accounts,
records or other data as may be necessary or advisable in the
Board's judgment for the proper administration of the Plan.
Article 3. ELIGIBILITY FOR PARTICIPATION IN THE PLAN.
3.1 Any Key Executive Employee is eligible for
recommendation by the Board to participate in the Plan. The
Board may provide that a Key Executive Employee becomes a
Participant in the Plan effective as of any date and such Key
Executive Employee shall become a Participant as of such date.
3.2 Each Participant shall complete and execute an
Agreement Schedule, in the form attached hereto, upon becoming a
Participant or at such other time as the Board may require.
Article 4. FUNDING
4.1 Spartech will fund the Plan in such a manner as shall
be approved, from time to time, by the Board. The determination
of the Board as whether to fund the Plan in advance or as
benefits are due, and if in advance, the amount thereof, shall be
conclusive and binding upon all parties in interest.
4.2 Contributions by Participants are not required nor
permitted under this Plan.
4.3 The Board may direct Spartech to contribute any funding
under the Plan to the Trust.
Article 5. ACCOUNTING
5.1 The Board shall establish a Deferred Compensation
Account to which it shall credit no later than December 31 of
each calendar year, commencing with the calendar year ending
December 31, 1994, an amount equal to ten percent of each
Participant's Compensation for the immediately preceding calendar
year. A Participant's or Beneficiary's Deferred Compensation
Account shall be reduced to reflect payments to such Participant
or Beneficiary.
5.2 Forfeitures arising under Sections 6.2, 6.5 or 6.6, to
the extent attributable to funded Deferred Compensation Accounts,
shall be allocated to the Deferred Compensation Accounts of
remaining Participants. Spartech's obligation to credit accounts
for a calendar year shall be reduced by the amount of funded
forfeitures for such year.
5.3 To the extent the Plan is funded, either through
investments owned by Spartech, which are reserved for funding of
the Plan, or through the Trust, Deferred Compensation Accounts
shall be adjusted as of each December 31 to reflect any increase
or decrease in the investment experience for that year. Any
increase or decrease shall be allocated to a Deferred
Compensation Account based upon the value of such Account on
January 1 of the calendar year in proportion to the value of all
such Accounts on January 1 of the year. For purposes of
allocating increases or decreases in the funding to an Account
for a year, the value of an Account shall be appropriately
adjusted to reflect additions to, charges against or
distributions from the Account during the year. If a life
insurance contract is purchased on the life of a Participant for
purposes of funding his benefits under the Plan, such contract
shall be credited directly to the Deferred Compensation Account
of the insured Participant. In this event, the value of the
Participant's Deferred Compensation Account shall be reduced by
the value of the life insurance contract for purposes of
allocating the annual increase or decrease in the funding of the
Plan under this Section 5.3. Death benefits paid pursuant to a
life insurance contract shall be credited directly to the
Deferred Compensation Account of the Participant whose life is
insured under such contract.
5.3 The balance credited to a Participant's or
Beneficiary's Deferred Compensation Account, as adjusted for
investment experience and other appropriate credits and charges,
shall represent the proportionate interest under the Plan of such
Participant or Beneficiary.
Article 6. BENEFITS
6.1 In the event a Participant terminates employment with
Spartech on account of Permanent Disability or on or after
attaining age sixty-five, payment of the full value of the
Participant's Deferred Compensation Account to the Participant
shall commence as of the first day of the month immediately
following the Participant's termination of employment. In the
event a Participant dies while in the employment of Spartech,
payment of the full value of his Deferred Compensation Account to
his Beneficiary shall commence as of the first day of the month
immediately following his death.
6.2 In the event a Participant terminates employment with
Spartech before attaining age sixty-five for a reason other than
Permanent Disability or death, he shall be entitled to the Vested
Portion of his Deferred Compensation Account. The Vested Portion
of a Participant's Deferred Compensation Account is determined as
follows:
Participant's Years of Service Vested Portion
Less than one 10%
More than one but less than two 20%
More than two but less than three 30%
More than three but less than four 40%
More than four but less than five 50%
More than five but less than six 60%
More than six but less than seven 70%
More than seven but less eight 80%
More than eight but less than nine 90%
More than nine 100%
The amount of the Deferred Compensation Account to which the
Participant is not entitled shall be forfeited. The forfeited
portion, to the extent it is funded either through the Trust or
with investments owned by Spartech and reserved for funding the
Plan, shall be a credit against Spartech's obligation to fund
Deferred Compensation Accounts as provided under Section 5.2.
Payment of the Vested Portion of a Participant's Deferred
Compensation Account to the Participant shall commence as of the
first day of the month immediately following his sixty-fifth
birthday. In the event of the Participant's death prior to
attaining age sixty-five, payment of the Vested Portion of his
Deferred Compensation Account to his Beneficiary shall commence
as of the first day of the month immediately following the
Participant's death.
6.3 The Vested Portion of Participant's Deferred
Compensation Account which is payable shall be paid, in the sole
discretion of the Board, in one of the following ways:
A. A single payment; or
B. Substantially equal or monthly or annual installments for a
period not to exceed five years.
If payments to a Participant or Beneficiary have commenced and
the recipient of such payments dies, the balance of the Vested
Portion of the Deferred Compensation Account shall be paid in a
single payment to the Beneficiary of the Participant or
Beneficiary who was receiving payments. For this purpose, each
Beneficiary who is receiving payments under Section 6.3.B. shall
designate a Beneficiary in accordance with Section 1.3. If no
Beneficiary designation can be located, the balance of the Vested
Portion of the Participant's Deferred Compensation Account shall
be paid to the Beneficiary's estate.
6.4 Payments under this Article 6 shall be suspended upon a
Participant's return to full employment with Spartech or an
Affiliated Company. Such payments shall again commence upon the
Participant's subsequent termination of employment.
6.5 Notwithstanding any provision in the Plan, if a
Participant's employment with Spartech or an Affiliated Company
is terminated for cause, neither the Participant nor his
Beneficiary shall be entitled to any benefits under this Plan and
the balance of his Deferred Compensation Account shall be
forfeited under Section 5.2. "Cause", for purposes of this
Section 6.5 means, in the sole discretion of the Board, proven
dishonesty or theft, conviction of a felony, habitual drunkenness
or drug abuse or material breach of the Participant's employment
contract with Spartech or an Affiliated Company.
6.6 A Participant shall not, during the continuance of the
employment relationship with Spartech or an Affiliated Company
and for the period of two years following the termination of his
employment with Spartech or an Affiliated Company, regardless of
who initiated the termination:
(i) Directly or indirectly, on his own behalf, or on
behalf of any other person, firm, partnership or
corporation, transact any business, which is the same as or
similar to the business then conducted by Spartech or an
Affiliated Company, within a 200 mile radius of any facility
owned and/or operated by Spartech or an Affiliated Company.
(ii) Divulge to others or use for his own benefit or for
the benefit of others any confidential information,
including correspondence and other records, whether or not
reduced to writing, which he may have acquired from
Spartech, an Affiliated Company or others by reason of his
employment with Spartech or an Affiliated Company. It is
expressly understood that all such information, lists,
correspondence and other writings are confidential and shall
remain the sole property of Spartech or an Affiliated
Company, and shall not be removed or transcribed for removal
by the Participant upon termination of employment.
(iii) Divert or solicit any of the business of Spartech
or an Affiliated Company away from Spartech or an Affiliated
Company, or enter into any agreements with or solicit the
employment of employees of Spartech or an Affiliated Company
nor will he directly or indirectly attempt to induce any
employees of Spartech or an Affiliated Company to leave
Spartech or an Affiliated Company or to take employment with
a competitor of Spartech or an Affiliated Company.
Any violation of the provisions of this Section 6.6 by a
Participant shall cause a total forfeiture of all rights and
payments of benefits payable under this Plan and the balance of
such Participant's Deferred Compensation Account shall be
forfeited under Section 5.2.
Article 7. MISCELLANEOUS PROVISIONS
7.1 The Board reserves the right to amend or terminate this
Plan; however, any amendment or termination permitted under this
Section 7.1 shall not reduce or cancel the Deferred Compensation
Account of a Participant, as of the date of such amendment or
termination, or the manner of payment of such benefits which are
payable to a Participant or his Beneficiary. Notwithstanding
anything in this Plan to the contrary, assets reserved for the
Plan are subject to market risk and nothing in this Plan
constitutes a guarantee that said assets will not lose market
value causing the Deferred Compensation Accounts of Participants
or Beneficiaries to be reduced.
7.2 Construction of this Plan shall be governed by the laws
of Missouri.
7.3 The annual accounting period for the Plan shall be the
annual period ending on December 31.
7.4 Nothing in this Plan, or any amendment thereto, shall
give a Participant, Key Executive Employee, Spouse, employee or
other person, a right unless it is specifically provided or is
accorded by Spartech pursuant to this Plan. Nothing in this Plan
or any amendment thereto shall be construed as giving a
Participant or Beneficiary the right to remain in the employment
of Spartech or an Affiliated Company and all persons shall remain
subject to discharge at any time to the same extent as if this
Plan had not been adopted.
7.5 The terms of this Plan shall be binding upon the heirs,
executors, administrators, successors and assigns of all parties
in interest.
7.6 Terms in the masculine shall be deemed to include the
feminine, and terms in the singular shall be deemed to include
the plural and vice versa, wherever the context so admits or
requires.
7.7 Any amount payable to or for the benefit of a minor, an
incompetent person or other person incapable of receipting
therefor shall be deemed paid when paid to such person's guardian
or to the party providing or reasonably appearing to provide for
the care of such person, and such payment shall fully discharge
Spartech and the Board with respect thereto.
7.8. Neither a Participant nor any other person shall
acquire any right, title, or interest in or to any amount
outstanding to the Participant's credit under the Plan other than
the actual payment of such portions thereof in accordance with
the terms of the Plan. This Plan shall not be deemed to
constitute or create a trust, or an escrow agreement or any type
of fiduciary relationship between Spartech and a Participant and
his Spouse; nor shall the benefits provided herein be deemed in
any way to be secured by any particular assets of Spartech. The
Participant's interest and that of his Spouse shall be only the
unsecured contractual right to receive the benefits provided for
herein.
7.9 No right or benefit under this Plan shall be subject to
anticipation, alienation, sale, assignment, pledge, encumbrance
or change, and any attempt to anticipate, alienate, sell, assign,
pledge encumber or change the same shall be void. No right or
benefit hereunder shall in any manner be liable for or subject to
the debts, contracts, liabilities or torts of the person entitled
to such benefit. If a Participant or Spouse shall become
bankrupt or attempt to anticipate, alienate, sell, assign,
pledge, encumber or change any right or benefit hereunder, then
such right or benefit shall, in the discretion of the Board,
cease and terminate; and in such event, Spartech may hold or
apply the same or any part thereof for the benefit of such
Participant or his Spouse at any time and in such proportion as
the Board may deem proper.
7.10 The cost of administering the Plan shall be paid by
Spartech.
7.11 The Plan shall become operative and in effect as of
January 1, 1994.
7.12 The headings have been inserted for convenience only
and shall not affect the meaning or interpretation of the Plan.
7.13 The parties hereto agree that Spartech shall, without
prejudice to any other remedies, be entitled to injunctive relief
for any breach of covenant contained in this Plan.
7.14 In the event a Key Executive Employee is also a member
of the Board, such Employee shall not be eligible to participant
in any determination reserved to the Board under this Plan as it
relates such Employee.
7.15 The Participant and his Beneficiary shall submit to
Spartech his current mailing address. It shall be the duty of
the Participant and his Beneficiary to notify Spartech promptly
of any change of address. In absence of such notice, Spartech
shall be entitled, for all purposes, to rely on the last known
address of the Participant or Beneficiary.
7.16 The Board shall make all determinations concerning
right to benefits under this Plan. Any decision by the Board
denying a claim by a Key Executive Employee, Participant or his
Beneficiary for benefits under this Plan shall be stated in
writing and delivered or mailed to the Key Executive Employee,
Participant or such Beneficiary. Such decision shall set forth
the specific reasons for the denial, written to the best of
Spartech's ability in a manner that may be understood without
legal or actuarial counsel. In addition, Spartech shall afford a
reasonable opportunity to the Participant or such Beneficiary for
a full and fair review of the decision denying such claim. Any
decision of the Board with respect to the Plan shall be final,
binding and conclusive.
7.17 If any provision of this Plan is found to be invalid,
it will not render the remainder of the Plan invalid.
IN WITNESS WHEREOF, Spartech has caused this Spartech Non-
Qualified Deferred Compensation Agreement to be executed and
attested by its President thereto duly authorized as of the day
and year first above written.
SPARTECH CORPORATION
By:
ATTEST:
Secretary
AGREEMENT SCHEDULE
SPARTECH CORPORATION
NON-QUALIFIED DEFERRED COMPENSATION PLAN
, (the "Participant"), an
employee of Spartech Corporation ("Spartech"), has been selected
and is hereby designated pursuant to a resolution adopted by the
Board of Directors of Spartech to participate in the Spartech
Corporation Non-Qualified Deferred Compensation Plan effective
, 199 .
If you wish to accept the benefits of the Spartech
Corporation Non-Qualified Deferred Compensation Plan, please
execute a copy of this schedule at the place indicated below.
By:
I hereby acknowledge my designation as a Participant in the
Spartech Corporation Non-Qualified Deferred Compensation Plan and
acknowledge that I have read and understand the Spartech
Corporation Non-Qualified Deferred Compensation Plan and the
Spartech Corporation Non-Qualified Deferred Compensation Trust.
I hereby designate the following as my Beneficiary (name and
relationship) under the Plan:
.
Dated this day of , 199 .
Participant
STATE OF MISSOURI )
) SS.
OF ST. LOUIS )
On this day of , in the year 19 ,
before me, , a Notary Public in and
for said state, personally appeared ,
known to me to be the person who executed the within
, and acknowledged to me
that executed the same for the purposes therein stated.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal in the and said State
aforesaid, the day and year first above written.
Notary Public
My Commission Expires: