WAINOCO DEFERRED COMPENSATION PLAN
(First Amendment and Restatement)
I. Purpose
The purposes of this Plan are to provide certain Eligible
Employees of Wainoco Oil Corporation (the "Company") and its
Subsidiaries with (i) the opportunity to defer compensation on an
elective basis, (ii) Company-provided nonqualified benefits
intended to partially "restore" benefits they may have "lost"
under the Wainoco Retirement Savings Plan (the "Qualified Plan")
due to the limitations of any of the following sections of the
Code: Section 401(a)(17), Section 401(k)(3), Section 402(g) or
Section 415 (collectively, the "Code Limits") and (iii)
additional, discretionary Company-provided nonqualified benefits.
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. "Account" means a Company Account and/or a Participant
Account, as the context requires. A Company Account shall be
established by the Company for each Participant and credited with
any Company contributions made under the Plan on behalf of such
Participant and the "interest" credited thereon. A Participant
Account shall be established by the Company for each Participant
who elects to make voluntary deferrals under the Plan and shall
be credited with such deferrals and the "interest" credited
thereon.
B. "Active Participant" means an Eligible Employee who has
been designated as a Participant by the Board for the specified
Plan Year and who remains eligible to receive a Company
contribution.
C. "Base Compensation" means the base salary that will be
payable to a Participant by the Company or a Subsidiary, if
earned, for a Plan Year or the remaining part of the Plan Year,
as the case may be.
D. "Beneficiary" means the person(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.
E. "Board" means the Compensation Committee of the Board of
Directors of the Company.
F. "Bonus" means the annual bonus, if otherwise earned,
that would be payable to a Participant by the Company after the
end of the specified Plan Year.
G. "Code" means the Internal Revenue Code of 1986, as
amended.
H. "Committee" means the committee of employees, who need
not be Participants in the Plan, appointed by the Board to
administer this Plan.
I. "Disability" means a Participant who has not yet reached
his Normal Retirement, has become disabled and is receiving
benefits under the Company's long-term disability plan.
J. "Early Retirement" means the Participant's termination
of employment with the Company and its Subsidiaries for any
reason other than death or Disability on or after reaching age 55
and prior to age 65.
K. "Eligible Employee" means an employee of the Company or
a Subsidiary who is "a member of a select group of management" or
a "highly compensated employee", within the meaning of Section
301(a)(3) of ERISA.
L. "Entry Date" means, with respect to the 1993 Plan Year,
October 29, 1993, and, with respect to future Plan Years, January
1 of each such year; provided, however, with respect to an
Eligible Employee who first becomes a Participant 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 is designated a Participant by the Board.
M. "Normal Retirement" means the Participant's termination
of employment with the Company and its Subsidiaries for any
reason other than death on or after reaching age 65.
N. "Participant" means an Active Participant or any former
Active Participant who continues to have an Account maintained on
his behalf under the Plan.
O. "Plan Year" means the calendar year; provided, however,
the 1993 Plan Year shall begin October 29, 1993 and end December
31, 1993. Solely for purposes of calculating the Company's
Matching Contribution and Retirement Contribution under Section
V, the 1993 Plan Year shall be deemed to be the entire 1993
calendar year.
P. "Subsidiary" means any corporation in which the Company
owns directly or indirectly at least 50% of the voting stock.
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. Participation
A. Participation. Only those Eligible Employees who are
designated by the Board as being Active Participants shall be
able to participate in the Plan. The Board may make such
designations by individual name, position and/or class or any
other manner it may choose and may make any such designation(s)
ongoing designations or effective only for a specified Plan
Year(s). No Eligible Employee shall have a right to be
designated a Participant.
In the event an Active Participant ceases to be an Eligible
Employee, such person shall automatically cease to be an Active
Participant and no further elective deferrals or Company
contributions will be credited to his Accounts thereafter unless
such person again becomes an Active Participant. Further, the
Board, in its sole discretion, may at any time (including during
a Plan Year) discontinue the active participation of an Active
Participant effective immediately or as of any future date
specified by the Board.
B. Elections on Participation. Upon first becoming a
Participant, an Eligible Employee shall make an election as to
(i) the form of payment of his Accounts in the event his
employment is terminated due to Early or Normal Retirement or
Disability and (ii) whether the payment of his Accounts shall be
deferred until his Normal Retirement in the event his employment
is terminated due to Disability or Early Retirement. These
elections shall be irrevocable, except that a Participant may
change either or both of such elections, by giving the Company
written notice of such new election at least 12 months prior to
the date his Accounts first become payable; provided, however, in
the event the Participant's employment is terminated within 12
months of his having filed a new election, such new election
shall be void ab initio and the Participant's prior election
shall continue to be effective.
IV. Elective Deferrals
Each Plan Year an Active Participant may elect to defer (1)
up to 50% (100% for the 1993 Plan Year) of his Base Compensation
and/or (2) up to 100% of his Bonus for the Plan Year by giving
written notice to the Company setting forth the Participant's
election for such Plan Year as to: (a) the percentage or dollar
amount, whichever may be elected, of the Participant's Base
Compensation to be deferred for such Plan Year (deferrals will be
automatically withheld pro rata throughout the Plan Year (or
remaining part), unless with respect to an election to defer a
specified dollar amount, the Participant elects for such amount
to be withheld equally over some shorter designated monthly
period); and/or (b) the percentage of the Participant's Bonus to
be deferred for such Plan Year.
To make an elective deferral for a specified Plan Year, a
Participant must deliver his executed deferred compensation
election to the Company, on the form prescribed by the Committee
for that purpose, (i) with respect to the deferral of Base
Compensation, prior to the Entry Date for such Plan Year (or with
respect to the 1993 Plan Year, prior to November 1) and (ii) with
respect to the deferral of a Bonus payable for such Plan Year, at
least three months (two months for the 1993 Plan Year) prior to
the end of the Plan Year. All elections shall be irrevocable
except that a Participant may terminate a deferral election for
the remainder of the Plan Year, to be effective with respect to
Base Compensation and/or a Bonus to be earned after the date of
such termination, by giving the Company written notice of such
termination (i) with respect to a deferral of Base Compensation,
at least 15 days prior to the month such termination is to become
effective and (ii) with respect to the deferral of a Bonus, at
least three months prior to the end of the Plan Year. The
elections described above in this Section 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 Participant, no elective
deferrals will be made for such Participant for that Plan Year.
Further, a Participant's deferral election shall be automatically
suspended at any time the Participant is not making the maximum
elective deferral contribution permitted under the terms of the
Qualified Plan.
V. Company Contributions
A. Matching Contributions. As of the end of each Plan Year
and subject to the following provisions of this paragraph, the
Company shall credit to the Company Account of each Participant
who is an Active Participant at the end of such year or who
terminated employment during such Plan Year due to death,
Disability, Early or Normal Retirement, an amount (the "Matching
Contribution") equal to the excess of (i) what the Company's
"matching contribution" under the Qualified Plan would have been
for such Plan Year (based on the Company's actual rate of
matching contributions under the Qualified Plan for such year, if
any) if the Participant had made contributions thereunder to the
fullest extent permitted by its terms, disregarding the Code
Limits, over (ii) what the maximum amount of the Company's
"matching contribution" under the Qualified Plan would have been
had the Participant made contributions thereunder to the fullest
extent permitted, but after giving effect to the Code Limits;
provided, however, notwithstanding the above, the Matching
Contribution that otherwise would be credited hereunder for a
Plan Year shall be reduced dollar for dollar by the amount, if
any, that the Participant's elective deferrals under this Plan
for that Plan Year are less than the amount of the Matching
Contributions as determined above.
B. Retirement Contributions. As of the end of each Plan
Year, the Company shall credit to the Company Account of each
Participant who is an Active Participant at the end of such year
or who terminated employment during such Plan Year due to death,
Disability, Early or Normal Retirement, an amount equal to the
excess of (i) what the Company's retirement contribution for the
Participant under the Qualified Plan would have been for such
Plan Year, disregarding the Code Limits, over (ii) what the
Company's actual retirement contribution for the Participant
under the Qualified Plan was for the Plan Year.
C. Discretionary Contributions. From time to time, the
Company shall credit such additional amounts to a Participant's
Company Account that the Board may, in its sole discretion, have
approved.
VI. Maintenance of Accounts
A. Participant Accounts. A separate Participant Account
shall be established and maintained by the Company for each
Participant reflecting the elective amounts, if any, deferred
under the Plan (Base Compensation and/or Bonus) by such
Participant. As of the end of each month in a Plan Year, an
amount shall be credited to the Participant Account of each
Active Participant to reflect the Base Compensation and/or Bonus,
if any, he deferred for such month pursuant to the Plan.
B. Company Account. A separate Company Account shall be
established for each Participant, which shall be credited with
all Company contributions made under the Plan on behalf of such
Participant. Company contributions shall be credited as of the
end of the Plan Year, unless the Committee directs otherwise.
C. 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 or Company contributions made for such
month. Interest on the Accounts for any month shall be computed
using such interest rate as is from time to time established
therefor by the Board.
D. Vesting. A Participant shall be immediately and at all
times 100% vested in his Accounts under the Plan.
VII. Distribution of Accounts
A. Retirements and Disability. If a Participant terminates
employment due to his Early or Normal Retirement or Disability,
the Participant's Accounts 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 of the first of the month
coinciding with or next following such termination and shall be
made as soon as is reasonably practicable thereafter, unless,
with respect to a termination due to Early Retirement or
Disability, the Participant has elected to have the distribution
of his Accounts deferred until the date the Participant would
reach his Normal Retirement. All payments shall be made by
Company check. In the event of the Participant's death prior to
the payment of his entire balance(s) of his Account(s), the
remaining balance(s) of his Account(s) 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 of Employment. If a Participant
terminates employment with the Company and its Subsidiaries for
any reason other than Disability, Early or Normal Retirement,
including due to death, his Accounts shall be valued as of the
end of the month coinciding with or immediately following the
date of such termination of employment 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 the Participant's Accounts 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.
D. Involuntary Cashouts. If at the date of a Participant's
termination of employment the amount credited to his Accounts is
less than $100,000, then notwith standing a Participant election
to the contrary, the Company, in its sole discretion, can elect
to immediately pay to Participant his Account balances in a
single lump sum.
VIII. Participants' Rights
The establishment of the Plan shall not be construed to give
any employee the right to be retained in the service of the
Company or a Subsidiary. A Participant shall not have any
interest in the amounts credited to his Accounts until such
Accounts are actually distributed in accordance with the Plan.
With respect to all amounts credited to his Accounts, the
Participant shall be only a general unsecured creditor of the
Company.
IX. 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, the Participant's
Accounts shall be reduced for all Plan purposes by the amount of
any such payment.
X. 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.
XI. 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 below or in Paragraph J of Section XIV.
Any person claiming a benefit, requesting an interpretation
or ruling under this Plan, or requesting information under this
Plan shall present the request in writing to the Committee which
shall respond in writing as soon as practicable. If the claim or
request is denied, the written notice of denial shall state: (i)
the reasons for denial, with specific reference to the provisions
on which the denial is based, (ii) a description of any
additional material or information required and an explanation of
why it is necessary, and (iii) an explanation of the claim review
procedure.
Any person whose claim or request is denied or who has not
received a response within 30 days may request review by notice
given in writing to the Committee who may, but shall not be
required to, grant the claimant a hearing. On review, the
claimant may have representation, examine pertinent documents,
and submit issues and comments in writing.
The decision on review shall normally be made within 60
days. If an extension of time is required for a hearing or other
special circumstances, the claimant shall be so notified and the
time limit shall be 120 days. The decision shall be in writing
and shall state the reasons and the relevant Plan provisions.
All decisions on review shall be final and bind all parties
concerned.
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.
XII. 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.
XIII. 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.
XIV. 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 its Board
of Directors or any person or persons authorized by its Board of
Directors 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, as the case may be, all taxes required to
be withheld therefrom for federal, state or local government
purposes.
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 December 1,
1993, effective for all purposes as of October 29, 1993.
WAINOCO OIL CORPORATION
By: ___________________________
s/s George E. Aldrich
Name: ___________________________
George E. Aldrich
Title: ___________________________
Vice President - Controller