EXHIBIT 10.52
UNIROYAL TECHNOLOGY CORPORATION
DEFERRED COMPENSATION PLAN
Effective August 1, 1995, as amended April 3, 2000
ARTICLE I - INTRODUCTION
This Plan is adopted by Uniroyal Technology Corporation, a Delaware
Corporation (the "Company"), effective August 1, 1995, for the benefit of
certain key employees.
1.1 Purpose of Plan. The purpose of this Plan is to provide certain
management employees of the Company with the opportunity to defer a portion of
their salaries and bonuses otherwise payable to them as employees of the Company
that they are unable to contribute to the Company's 401(k) Savings Plan because
of statutory maximums applicable to that plan. Participation in this Plan is
intended to be limited to those persons described in Section 201(2) of the
Employee Retirement Income Security Act of 1974 ("ERISA"). The Plan is not
intended to be a qualified plan under Section 401(a) of the Internal Revenue
Code of 1986, as amended.
ARTICLE II - DEFINITIONS
2.1 "Administrator" means the Employee Benefits Committee of the
Company appointed by the Board or such other person or committee as may be
appointed from time to time by the Board or by the Compensation Committee to
supervise the administration of the Plan.
2.2 "Board" means the Board of Directors of the Company.
2.3 "Code" means the Internal Revenue Code of 1986, as amended from
time to time. Reference to any section or subsection of the Code includes
reference to any comparable or succeeding provisions of any legislation which
amends, supplements or replaces such section or subsection.
2.4 "Company" means Uniroyal Technology Corporation, a Delaware
corporation.
2.5 "Compensation Committee" means the Compensation Committee of the
Board.
2.6 "Effective Date" means August 1, 1995.
2.7 "Employee" means a person employed by the Company.
2.8 "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
2.9 "Named Fiduciary" means the Administrator.
2.10 "Participant" means any Employee who participates in the Plan in
accordance with Article III.
2.11 "Plan" means the Uniroyal Technology Corporation Deferred
Compensation Plan set forth herein, together with any and all amendments and
supplements which may be adopted from time to time in connection with the Plan.
2.12 "Plan Year" means the period beginning on August 1, 1995, and
ending on the following December 31, and the twelve-month period beginning on
each January 1 thereafter.
2.13 "President" means the President of the Company. "Chief Executive
Officer" means the Chief Executive Officer of the Company.
ARTICLE III - PARTICIPATION
3.1 Commencement of Participation. Any management Employee who is
designated as eligible to be a Participant in the Plan will become a Participant
on the later of August 1, 1995, or the date he or she satisfies these
eligibility requirements. The initial Participants in the Plan as of August 1,
1995 shall be designated by the Board. New Participants after that date may be
designated either by the Board, by the Compensation Committee or by the
Administrator. To become a Participant in the Plan, an eligible employee must
submit an election to participate in the form prescribed by the Administrator in
writing on or before the day on which participation is to begin. The Company
will establish for each Participant an unfunded deferred compensation
recordkeeping account, as specified in Section 4.3.
3.2 Cessation of Participation. A Participant will cease to be a
Participant as of the earlier of (a) the date on which the Plan terminates and
(b) the date on which there are no benefits held by the Plan on his or her
behalf.
ARTICLE IV - BENEFITS
4.1 Election of Deferral
(a) Each Participant shall be entitled to make an irrevocable
election to defer receipt of up to $55,000 of the salary or any
annual Management Incentive Plan compensation or other bonus
payments or a combination thereof to be earned by the Participant
pursuant to his or her employment with the Company in each Plan
Year. A Participant may not defer less than one percent (1%) of
either such salary or annual bonus payments in any Plan Year. A
Participant's deferral election will apply only to salary or annual
bonus payments earned after execution of the election and delivery
of it to the Administrator. Amounts deferred under the Plan will be
accounted for in the manner described in Section 4.3 hereof.
(b) Each deferral election is an irrevocable election. A Participant
may not withdraw an amount credited to his or her account until he
or she is eligible to receive a distribution under the plan's
distribution rules set forth in Section 4.4.
(c) A Participant's initial election to participate in the Plan must
be delivered to the Administrator within 30 days of the first date
on which the Participant is eligible to participate in the Plan. An
Employee who is eligible but does not file a participation election
will be deemed to have elected a zero deferral election under the
Plan. A Participant may change his or her election to defer future
salary or annual bonus payments by submitting a supplemental
election form to the Administrator on or before the first day of any
Plan Year as of which the change is to become effective.
(d) A Participant may terminate his or her election to defer at any
time by giving written notice thereof to the Company. No termination
of deferral shall be given retroactive effect, and any such election
shall make the terminating Participant ineligible for participation
until the first day of the next Plan Year.
(e) The Company shall be responsible for payment of any amounts
deferred hereunder. By electing to participate herein, each
Participant agrees to look solely to the Company for payment of such
amounts.
4.2 Interest. In addition to the deferral amounts described in Section
4.1, the Company will pay interest on a Participant's account ("Interest"). Such
interest will be credited to the Participant's account as of the date of each
deferral and will be posted to the Participant's account on the earliest of the
last day of each Plan Year, the date of termination of the Plan and the date on
which the Participant shall cease to be employed by the Company. In the case of
a distribution, interest will be credited through the day prior to the date of
distribution. Any Interest shall be credited only to the Participant's account
in the Plan and is not payable to the Participant in cash. The Participant has
no right to such amounts other than through the provisions of the Plan relating
to the distribution of Plan benefits. Interest will be credited by the Company
within the limits described in this section to all Participants who defer
earnings to the Plan during a Plan Year. For purposes of this section, the
provisions of the Qualified Savings Plan limiting the ability of highly
compensated employees from contributing to and sharing in contributions under
the Qualified Savings Plan shall not apply.
(a) Rate of Interest. Interest under the Plan will be paid at the
rate of seven and 84/100 percent (7.84%) per annum on each deferral
by the Participant for the respective pay period or annual bonus and
on the amounts in the Participant's account during a Plan Year that
were contributed during previous Plan Year.
(b) Vesting. A Participant is always fully vested in his or her
account under the Plan.
4.3 Deferred Compensation Accounts. A separate account shall be
established and maintained for each Participant reflecting the salary and annual
bonus amounts deferred pursuant to this Plan by the Participant as well as any
Interest credited to the Participant's account.
4.4 Distributions
(a) Distributions on Disability, Retirement or Termination of
Employment. A Participant will be entitled to a distribution from
this Plan when the Participant's employment as an Employee with the
Company is terminated by reason of disability, retirement on or
after age sixty-five or for any other reason. A Participant may also
withdraw all or a portion of the balance of his account under the
Plan as of the last day of any fiscal quarter, provided that the
Participant has given the Company written notice of such withdrawal
not less than thirty (30) days prior to the end of such quarter. At
that time the Participant shall be eligible to receive all or a
portion his or her account balance as designated in the notice of
withdrawal. Any withdrawal other than under the first sentence of
this Section 4.4(a) will be subject to forfeiture of ten percent
(10%) of the amount being so withdrawn.
(b) Termination of Plan. If the Plan is terminated, all Plan
Participants shall be entitled to receive immediate distributions of
the entire balances of their accounts under the Plan.
(c) Change of Control. In the event of a change of control of the
Company followed by a material diminution of the duties,
compensation or employment benefits of the Participant prior to the
termination of the Plan or the Participant's agreement under the
Plan, the Participant shall become entitled to an immediate
distribution of all benefits under this Plan as of the calendar
month in which such diminution became effective. For purposes of
this Subsection, a "change in control" shall be deemed to have
occurred if the conditions set forth in any one of the following
situations shall have occurred:
(1) Any Person is or becomes the "beneficial owner" within the
meaning of Rule 13d-3 under the Securities Exchange Act of 1934
(the "Exchange Act"), directly or indirectly, of securities of the
Company representing 30% or more of the combined voting power of
the Company's then outstanding securities; or
(2) During any period of two consecutive years, 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 paragraphs (a), (c) or (d) of this subsection) 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 (other than approval given in
connection with an actual or threatened proxy or election contest)
cease for any reason to constitute a majority thereof; or
(3) The stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other
than (i) a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining or
outstanding or by being converted into voting securities of the
surviving entity or parent entity), in combination with the
ownership of any trustee or other fiduciary holding securities
under an employee benefit plan of the Company, at least 50% of the
combined voting power of the voting securities of the Company or
such surviving entity (or parent entity) outstanding immediately
after such merger or consolidation, or (ii) a merger or
consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no Person acquires more
than 30% of the combined voting power of the Company's then
outstanding securities; or
(4) The shareholders 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 (or any transaction having a similar effect).
For the purpose of this Subsection, "Persons" shall have the
meaning given in Section 3(a)(9) of the Exchange Act, as modified
and used in Sections 13(d) and 14(d) thereof; however, a Person
shall not include (i) the Company or any of its subsidiaries, (ii)
a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its subsidiaries, (iii) an
underwriter temporarily holding securities pursuant to an offering
of such securities, or (iv) a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially
the same proportions as their ownership of stock of the Company.
(d) Form of Distribution. The amount due the Participant under this
Plan shall be paid to the Participant or, in the event of the
Participant's death, to the Participant's beneficiary in a cash lump
sum within 60 days of the date on which the Participant becomes
entitled to a distribution. A Participant's distribution shall be
used first to satisfy any debit balance or other indebtedness
Participant may have to the Company. Further, if in the opinion of
the Company's management an immediate cash distribution would have a
material adverse effect upon the Company, the Company may elect to
pay the Participant in up to five equal annual installments,
including Interest on the unpaid balance at the rate set forth in
Section 4.2(a) above.
4.5 Funding. It is the intent of the Company that this plan be an
unfunded plan for tax purposes and for purposes of Title I of ERISA.
Notwithstanding that intention, the Company shall have the option of setting
aside funds to satisfy its liabilities by funding this Plan through the purchase
of insurance or through the establishment of a rabbi trust or the Company may
choose not to set aside funds to satisfy its liabilities under this plan at all.
If the Company chooses to set aside funds into a rabbi trust, the terms of the
rabbi trust shall conform at all time to the terms of the model trust
promulgated by the Internal Revenue Service in Revenue Procedure 92-64. In any
event, however, the rights of the Participant or any Beneficiary of the
Participant shall be those of an unsecured creditor of the Company. Any
insurance policy or other asset acquired by the Company shall be deemed not to
be held in trust for the benefit of the Participant and not to be collateral
security for the performance of the obligations of the Company, but shall remain
a general, unpledged, and unrestricted asset of the Company.
4.6 Other Benefit Plans. The amount of each Participant's salary and
bonuses which he or she elects to defer under the Plan shall not be deemed to be
compensation for the purpose of calculating the amount of a Participant's
benefits or contributions under a pension plan or retirement plan qualified
under Section 401(a) of the Code, the amount of life insurance payable under any
life insurance plan established or maintained by the Company, or the amount of
any disability benefit payments payable under any disability plan established or
maintained by the Company, except to the extent specifically provided in any
such plan.
ARTICLE V - ADMINISTRATION OF PLAN
5.1 Plan Administrator. The administration of the Plan shall be under
the supervision of the Administrator. It shall be a principal duty of the
Administrator to see that the Plan is carried out in accordance with its terms
for the exclusive benefit of Participants without discrimination among them. The
Administrator will have full power to administer the Plan in all of its details,
subject to applicable requirements of law. For this purpose, the Administrator's
powers will include, but will not be limited to, the following authority, in
addition to all other powers provided by this Plan:
(a) to make and enforce such rules and regulations as it deems
necessary or proper for the efficient administration of the Plan,
including the establishment of any claims procedures that may be
required by applicable provisions of law;
(b) to exercise discretion in interpreting the Plan;
(c) to exercise discretion in deciding all questions concerning the
Plan and the eligibility of any person to participate in the Plan;
(d) to appoint such agents, counsel, accountants, consultants, and
other persons as may be required to assist in administering the
Plan; and
(e) to allocate and delegate its responsibilities under the Plan and
to designate other persons to carry out any of its responsibilities
under the Plan, any such allocation, delegation, or designation to
be in writing.
The decisions made by and the actions taken by the Administrator in the
administration of the Plan shall be final and conclusive on all persons. The
Administrator shall not be liable for any actions taken in good faith.
5.2 Examination of Records. The Administrator will make available to
each Participant for examination at reasonable times during normal business
hours such of the records under the Plan that pertain to the Participant,
5.3 Reliance on Tables. In administering the Plan, the Administrator
will be entitled to the extent permitted by law to rely conclusively on all
tables, valuations, certificates, opinions, and reports which are furnished by,
or in accordance with the instructions of accountants, counsel, or other experts
employed or engaged by the Administrator.
5.4 Nondiscriminatory Exercise of Authority. Whenever in the
administration of the Plan any discretionary action by the Administrator is
required, the Administrator shall exercise its authority in a non-discriminatory
manner so that all persons similarly situated will receive substantially the
same treatment and so that no discretionary acts are taken that would be
discriminatory under the Code.
5.5 Indemnification of Administrator. The Company agrees to indemnify
and to defend to the fullest extent permitted by law any Employee serving as the
Administrator or as a member of a committee designated as Administrator
(including any Employee or former Employee who formerly served as Administrator
or as a member of such committee) against all liabilities, damages, costs and
expenses (including attorneys' fees and amounts paid in settlement of any claims
approved by the Company) occasioned by any act or omission to act in connection
with the Plan, if such act or omission is in good faith.
ARTICLE VI - AMENDMENT AND TERMINATION OF PLAN
6.1 Amendment and Termination. The Plan may be amended or terminated
when in the sole opinion of the Company such amendment or termination is
advisable. The plan can be amended retroactively at any time, except that it
cannot be amended so that it materially adversely affects the rights of a
Participant who has vested benefits under the Plan. Any amendment or termination
shall be made by a written instrument signed by the Chief Executive Officer or
President and consented to by the Board or the Compensation Committee.
ARTICLE VII - CLAIMS FOR BENEFITS
7.1 Submission of Claim. Any claim for specific benefits under this
Plan shall be submitted to the Administrator.
7.2 Notice of Denial of Claim. If a claim for benefits under this Plan
is denied, the Administrator shall provide notice to the claimant in writing of
the denial within 90 days after its submission. The notice shall be written in a
manner calculated to be understood by the claimant and shall include:
(a) the specific reason or reasons for the denial;
(b) specific reference to the pertinent Plan provisions on which the
denial is based;
(c) a description of any additional material or information
necessary for the claimant to perfect the claim and an explanation
of why such material or information is necessary; and
(d) an explanation of the Plan's claims review procedures.
7.3 Extension of Time. If special circumstances require an extension of
time for processing the initial claim, a written notice of the extension and the
reason therefor shall be furnished to the claimant before the end of the initial
90-day period. In no event shall such extension exceed 90 days.
7.4 Review of Denial of Claim. The decision on review shall be made
within 60 days of receipt of the request for review, unless special
circumstances require an extension of time for processing, in which case a
decision shall be rendered as soon as possible, but not later than 120 days
after receipt of the request for review. If such an extension of time is
required, written notice of the extension shall be furnished to the claimant
before the end of the original 60-day period. The decision on review shall be
made in writing, shall be written in a manner calculated to be understood by the
claimant, and shall include specific references to the provisions of the Plan on
which the denial is based. If the decision on review is not furnished within the
time specified above, the claim shall be deemed denied on review.
ARTICLE VIII - MISCELLANEOUS PROVISIONS
8.1 Information to Be Furnished. Participants shall provide the Company
and the Administrator with such information and evidence, and shall sign and
deliver such documents, as may reasonably be requested from time to time for the
purpose of administration of the Plan.
8.2 Limitation of Rights. Neither the establishment of the Plan, nor
any amendment thereof, nor the payment of any benefits will be construed as
giving to any Participant or any other person any legal or equitable right
against the Company or Administrator, except as provided herein.
8.3 Spendthrift Clause. No Participant or Beneficiary shall have the
right to transfer, assign, alienate, anticipate, pledge, or encumber any part of
the benefits provided by this Plan, nor shall such benefits be subject to
seizure by legal process by any creditor of such Participant or Beneficiary. Any
attempt to effect such a diversion or seizure shall be deemed null and void for
all purposes hereunder to the extent permitted by ERISA and the Code. However,
the prohibitions contained in this Section shall not restrict the rights of
setoff set forth in Section 4.4.
8.4 Plan Not Contract. The Plan shall not be deemed to be a contract
between the Company and any Employee or to be consideration or an inducement for
the employment of any employee. No Participant in the Plan shall acquire any
right to be retained in the Company's employ by virtue of the Plan, nor, upon
his or her dismissal or upon his or her voluntary termination of employment,
shall he or she have any right or interest in the Plan other than as
specifically provided herein.
8.5 Governing Law. This Plan shall be construed, administered, and
enforced according to the laws of Florida.
8.6 Construction. A pronoun or adjective in the masculine gender
includes the feminine gender, and the singular includes the plural, unless the
context clearly indicates otherwise.
8.7 Successors. This Plan shall not be terminated by a transfer or sale
of the assets of the Company or by the merger or consolidation of the Company
into or with any other or entity, but the Plan shall be continued after such
sale, merger, or consolidation, and the transferee, purchaser, or successor
entity shall be required as part of the sale, merger, or consolidation to assume
the obligations to the Employer under this Plan and to continue this Plan.
8.8 Facility of Payment. Any amounts payable hereunder to any person
who is under legal disability or who, in the judgment of the Administrator, is
unable to properly manage his or her 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 Administrator may select, and any such payment shall be
deemed to be payment for such person's account and shall be a complete discharge
of all liability of the Company with respect to the amount so paid.
8.9 Withholding Payroll Taxes. To the extent required by the laws in
effect at the time compensation or deferred compensation payments are made, the
Company shall withhold from such compensation, or from deferred compensation
payments made hereunder, any taxes required to be withheld for federal, state or
local government purposes.
8.10 Administrative Expenses. All expenses of administering the Plan
shall be borne by the Plan and may be charged against the Participants' accounts
or any amounts distributable hereunder in the manner deemed appropriate by the
Administrator unless such amounts are paid by the Company.
8.11 Prohibition of Law. Any provision of this Plan prohibited by the
law of any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition without invalidating the remaining provisions hereof.
8.12 Liability of Company. Except as otherwise expressly provided
herein, no member of the Board and no officer, employee, or agent of the
Company, shall have any liability to any person based on or arising out of the
Plan except in the case of gross negligence or fraud.
8.13 Resolution of Disputes. Any dispute arising between any
Participant and the Company pertaining to the Plan shall be resolved by a
committee which shall consist of one or more appointees of each of the Company
and the Participant. Any expense of legal fees incurred by any party to any such
dispute shall be borne by the party incurring the expense.
IN WITNESS WHEREOF, this Plan is executed on July _____, 1995.
UNIROYAL TECHNOLOGY CORPORATION
By:/s/Martin J. Gutfreund
Vice President - Human Resources
and Administration
UNIROYAL TECHNOLOGY CORPORATION
DEFERRED COMPENSATION PLAN
EXHIBIT A
LISTING OF PARTICIPATING EMPLOYEES
Name of Participating Employee Date of Participation
- ------------------------------ ---------------------
Howard R. Curd August 15, 1995
Robert L. Soran August 15, 1995
George J. Zulanas, Jr. August 15, 1995
Oliver J. Janney August 15, 1995
Martin J. Gutfreund August 15, 1995
UNIROYAL TECHNOLOGY CORPORATION
DEFERRED COMPENSATION PLAN
DEFERRAL ELECTION FORM
Name (Please Print)_____________________________ Social Security #_____________
(Last) (First) (MI)
In accordance with the provisions of the Uniroyal Technology
Corporation - Deferred Compensation Plan, I hereby elect to defer the portion of
the salary and annual bonuses specified below that would otherwise be payable to
me for services as an employee, for the period beginning _____, 19__, and ending
___, 19__.
Deferral Amount for Salary:
Amount of Salary Deferred $__________
Deferral Amount for Bonuses:
Amount of Annual Bonus Deferred $________
Beneficiary Designation: In the event of my death, all benefits payable on my
behalf from the Plan shall be paid to my beneficiary designated below or the
last person that I previously designated for this Plan if I have not completed
this section of this form. Any designation of beneficiary that I make below
revokes all prior designation that I have made under this Plan. If I make no
designation on this or any prior form filed with the Administrator under this
Plan, my benefits will be paid to the beneficiary entitled to my benefits under
the Uniroyal Technology Corporation 401(k) Savings Plan or any successor plan
thereto.
Name of Beneficiary_________________________ Relationship__________________
Attach an additional sheet describing your designation if you need additional
space.
I understand that my deferred amounts and interest thereon will not be paid to
me until I terminate employment with Uniroyal Technology Corporation or its
successor and will then be paid to me (or to my beneficiary) in a lump sum. I
acknowledge that I have received a copy of the Plan and that I understand its
terms and conditions. I acknowledge that this election is irrevocable. By making
this election, I hereby consent to be bound by all of the terms of the Plan.
Date:_______________ ____________________
Employee
Received and accepted on the ________ day of _________, 19__.
By: __________________________, On Behalf of the Administrator