WAINOCO DEFERRED COMPENSATION PLAN FOR DIRECTORS
I. Purpose
The purpose of this Plan is to provide Directors with the
opportunity to defer their Director's Fees on an elective basis.
II. Definitions
When used in this Plan, the following terms shall have the
meanings set forth below unless a different meaning is plainly
required by the context:
A. "Beneficiary" means the individual(s) and/or trust(s)
designated by a Participant to receive his Accounts under the
Plan on his death or, if no designation is in effect, his estate.
B. "Board" means the Board of Directors of the Company.
C. "Committee" means the committee of Directors, who need
not be Participants in the Plan, appointed by the Board to
administer this Plan. A member of the Committee shall abstain
from acting in any Plan matter concerning himself or in which a
conflict of interest may exist. If all members of the Committee
are unable to act, the President of the Company shall be the
Committee.
D. "Disability" means a Participant who has resigned from
the Board due to having incurred a physical or mental disability
that prevents the individual from fulfilling his duties as a
Director.
E. "Director's Fee" means the retainer, Committee fees and
meeting fees paid to a Director by the Company for serving on the
Board.
F. "Entry Date" means, with respect to the 1994 Plan Year,
May 1, 1994, and, with respect to future Plan Years, January 1 of
each such year; provided, however, with respect to an individual
who first becomes a Director after the Entry Date applicable to
such Plan Year, Entry Date shall mean the first day of the month
coinciding with or next following the date the individual becomes
a Director.
G. "Participant" means a Director who has, or any former
Director who continues to have, an Account maintained on his
behalf under the Plan.
H. "Plan Year" means the calendar year; provided, however,
the 1994 Plan Year shall begin May 1, 1994 and end December 31,
1994.
I. "Retirement" means a Director's termination as a member
of the Board on or after reaching age 65.
Throughout this Plan, where appropriate, words in the
masculine gender shall include the feminine and neuter genders,
the plural shall include the singular and the singular shall
include the plural.
III. Elective Deferrals
A. Participation. Each Plan Year a Director may elect to
defer all or any part of his Director's Fees for that Plan Year
by giving written notice to the Company setting forth the
Participant's election for such Plan Year as to the percentage
of his Director's Fee to be deferred for such Plan Year. Deferrals
will be automatically withheld pro rata throughout the Plan Year
(or the remaining part thereof).
To make an elective deferral for a specified Plan Year, a
Director must deliver his executed deferred compensation election
to the Company, on the form prescribed for that purpose, prior to
the Entry Date for such Plan Year. All elections shall be
irrevocable except that a Director may terminate a deferral
election for the remainder of the Plan Year, to be effective with
respect to Director's Fees to be earned after the date of such
termination, by giving the Company written notice of such
termination, at least 15 days prior to the month such termination
is to become effective. The elections described above shall
apply only to the Plan Year for which they are made. If no
deferral election is timely made for a Plan Year by a Director,
no elective deferrals will be made hereunder for such Director
for that Plan Year.
B. Payment Elections on Initial Participation. Upon first
becoming a Participant in the Plan, a Director shall make an
election as to the form of payment of his Accounts in the event
his status as a Director is terminated due to Retirement or
Disability, i.e., in a lump sum or in ten annual installments.
The election shall be irrevocable, except that a Director may
change his election by giving the Company written notice of such
new election at least 12 months prior to the date his Account
first becomes payable; provided, however, in the event the
Director ceases to be a member of the Board within 12 months of
his having filed a new election, such new election shall be void
ab initio and the Director's prior election shall continue to be
effective.
IV. Maintenance of Accounts
A. Participant Accounts. A separate Participant Account
shall be established and maintained by the Company for each
Director reflecting the amounts of Director's Fees, if any,
deferred under the Plan by such Director. As of the end of each
month in a Plan Year, an amount shall be credited to the
Participant Account of each Participant to reflect the Director's
Fee, if any, he deferred for such month pursuant to the Plan.
B. Interest. Until distributed in full, each Account (or
the remaining portion thereof) under the Plan shall be credited
with "interest" as of the last day of each month based upon the
balance in the Account on such date after first reducing the
Account balance to reflect any distributions made during such
month from such Account and before crediting to the Account any
new elective deferrals made for such month. Interest on the
Accounts for any month shall be computed using the same interest
rate that is in effect from time to time under the Company's
Deferred Compensation Plan for employees.
C. Vesting. A Participant shall be immediately and at all
times 100% vested in his Accounts under the Plan.
V. Distribution of Accounts
A. Termination of Director Status. When a Participant
ceases to be a Director, his Participant Account shall be valued
as of the end of the month in which such termination occurs and
shall be paid to the Participant in either a single lump-sum or
in ten substantially equal annual installments, whichever
distribution form was elected by the Participant. Distributions
shall be made or commence, as the case may be, as soon as is
reasonably practicable following the first of the month
coinciding with or next following such termination. All payments
shall be made by Company check. In the event of the
Participant's death prior to the payment of his entire balance of
his Account, the remaining balance of his Account shall be paid
in a single sum to the Participant's Beneficiary as soon as
reasonably practicable after the Participant's death.
B. Other Terminations. If a Participant ceases to be a
Director for any reason other than Disability or Retirement,
including due to death, his Account shall be valued as of the end
of the month coinciding with or immediately following the date of
such termination and shall be paid to the Participant (or
Beneficiary, if applicable) in a single lump-sum (by Company
check) as soon as is reasonably practicable thereafter.
C. Hardship Distributions. In the event of any
unforeseeable emergency, the Committee may, in its sole
discretion, upon a written request of a Participant, direct the
acceleration of such portion of his Participant Account as may be
necessary to meet such emergency. The Committee shall require
the Participant to furnish the Committee with proof of such
emergency and the Participant's other financial resources as the
Committee may deem necessary to evaluate a Participant's written
request for a hardship payment. For purposes of this Plan, an
unforeseeable emergency is a severe financial hardship to the
Participant resulting from a sudden and unexpected illness or
accident of the Participant or of a dependent (as defined in Code
Section 152(a)) of the Participant, the loss of the Participant's
property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond
the control of the Participant. The circumstances that will
constitute an unforeseeable emergency will depend upon the facts
of each case, but, in any case, payment may not be made to the
extent that such hardship is or may be relieved --
(i) Through reimbursement or compensation by insurance
or otherwise,
(ii) By liquidation of the Participant's assets, to the
extent the liquidation of such assets would not itself cause
severe financial hardship, or
(iii) By cessation of deferrals under the Plan.
Withdrawals of amounts because of an unforeseeable emergency must
only be permitted to the extent reasonably needed to satisfy the
emergency need.
VI. Participants' Rights
The establishment of the Plan shall not be construed to give
any Director the right to be reelected or nominated for
reelection to the Board. A Participant shall not have any
interest in the amounts credited to his Account until such
Account is actually distributed in accordance with the Plan.
With respect to all amounts credited to his Account, the
Participant shall be only a general unsecured creditor of the
Company.
VII. Non-alienability and Non-transferability
A Participant may not borrow against his Accounts and no
Account may be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, charge,
garnishment, execution or levy of any kind, whether voluntary or
involuntary. However, if a former spouse of a Participant is
awarded an interest in a Participant's Accounts through a
judgment or order of a court, the Committee may, in its sole
discretion, direct that the payment of such interest awarded to
the former spouse be paid (valued as of the end of the month that
the Company received written notice of such final award) to the
former spouse in a lump sum; thereafter, his Participant Account
shall be reduced for all Plan purposes by the amount of any such
payment.
VIII. Statements of Account
Statements will be sent to Participants as soon as
practicable after the end of each Plan Year as to the balance in
their Accounts as of the end of such Plan Year.
IX. Administration
The Committee shall have the authority to adopt rules and
regulations for carrying out the Plan and to interpret, construe
and implement the provisions thereof and any election form or
beneficiary designation under this Plan. Any decision or
interpretation of any provision of the Plan or any election or
designation, eligibility to participate, benefit claim or
otherwise adopted by the Committee shall be final and conclusive,
except as provided in Paragraph J of Section XII.
The individuals serving as the Committee shall be fully
indemnified (to the extent permitted by law) by the Company for
all claims, losses, damages or expenses incurred by them for any
act, omission or construction made in connection with the Plan.
X. Amendment and Termination
The Plan may, at any time, be amended, suspended or
terminated by the Board. No amendment, suspension or termination
shall, without the consent of a Participant, adversely affect
such Participant's rights with respect to amounts then credited
in his Accounts. Notwithstanding anything in the Plan to the
contrary, all Accounts shall become immediately payable in full
upon the termination of the Plan.
XI. Unfunded Status of the Plan
Except as provided below, any and all payments made to a
Participant (or Beneficiary) pursuant to the Plan shall be made
from the general assets of the Company. All Accounts under the
Plan shall be bookkeeping entries only and shall not represent a
claim against any specific assets of the Company. Nothing
contained in this Plan shall be deemed to create a trust of any
kind or create any fiduciary relationship between the Company and
the Participant. However, the Company, in its sole discretion,
may establish a grantor ("rabbi") trust (or make other
arrangements) to provide for all or part of such Accounts,
provided that such grantor trust or other arrangement does not
result in the Plan becoming "funded" for tax or ERISA purposes.
XII. General Provisions
A. Notices. All notices to the Company hereunder shall be
delivered to the attention of the Secretary of the Company. Any
notice or filing required or permitted to be given to the
Committee or the Company under this Plan shall be sufficient if
in writing and hand delivered, or sent by registered or certified
mail, to the Company or the Committee, as appropriate, at the
principal office of the Company. Such notice shall be deemed
given as of the date of delivery or, if delivery is made by mail,
as of the date shown on the postmark or the receipt for
registration or certification.
B. Controlling Law. Except to the extent superseded by
applicable federal law, the laws of the State of Texas shall be
controlling in all matters relating to the Plan.
C. Captions. The captions of Sections and paragraphs of
this Plan are for convenience only and shall not control or
affect the meaning or construction of any of its provisions.
D. Action by the Company. Any action required or permitted
by the Company under the Plan shall be by resolution of the Board
or any person or persons authorized by the Board with respect to
such matters.
E. Facility of Payment. Any amounts payable hereunder to
any person under legal disability or who, in the judgment of the
Committee, is unable to properly manage his financial affairs may
be paid to the legal representative of such person or may be
applied for the benefit of such person in any manner which the
Committee may select.
F. Withholding of Taxes. The Company shall withhold from
any payments hereunder all taxes required to be withheld
therefrom.
G. Severability. Whenever possible, each provision of the
Plan shall be interpreted in such manner as to be effective and
valid under applicable law (including the Code), but if any
provision of the Plan shall be held to be prohibited by or
invalid under applicable law, then (i) such provision shall be
deemed amended to, and to have contained from the outset such
language as shall be necessary to, accomplish the objectives of
the provision and (ii) all other provisions of the Plan shall
remain in full force and effect.
H. No Strict Construction. No rule of strict construction
shall be applied against the Company, the Committee, the Board,
or any other person in the interpretation of any of the terms of
the Plan or any rule or procedure established by the Committee.
I. Successors. The provisions of the Plan shall bind and
inure to the benefit of the Company and its successors and
assigns. The term "successors" as used herein shall include any
corporation or other business entity which shall by merger,
consolidation, purchase or otherwise, acquire all or
substantially all of the business and assets of the Company and
successors of any such corporation or other business entity.
J. Arbitration. A Participant (or Beneficiary) may (but is
not required) to elect that any dispute or controversy arising
under or in connection with this Plan be settled by arbitration
in Houston, Texas, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered
on the arbitrator's award in any court having jurisdiction. All
legal fees and costs incurred by the Participant (or Beneficiary)
in connection with the resolution of any dispute or controversy
under or in connection with this Plan shall be reimbursed by the
Company as bills for such services are presented by the
Participant (or Beneficiary) to the Company.
IN WITNESS WHEREOF, the Company has caused this instrument
to be executed by its duly authorized officer this 5th of May,
1994, effective for all purposes as of May 1, 1994.
WAINOCO OIL CORPORATION
By: ___________________________
s/s George E. Aldrich
Name: ___________________________
George E. Aldrich
Title: ___________________________
Vice President - Controller