OSHKOSH TRUCK CORPORATION
DEFERRED COMPENSATION PLAN
FOR DIRECTORS AND EXECUTIVE OFFICERS
(As Restated Effective January 1, 2002)
OSHKOSH TRUCK CORPORATION
DEFERRED COMPENSATION PLAN
FOR DIRECTORS AND EXECUTIVE OFFICERS
Table of Contents
Page
INTRODUCTION ..................................................................1
ARTICLE I. DEFINITIONS .......................................................2
Section 1.1. Administrator.......................................2
Section 1.2. Board...............................................2
Section 1.3. Change in Control...................................2
Section 1.4. Company.............................................2
Section 1.5. Company Match Account...............................2
Section 1.6. Deferred Benefit Account............................2
Section 1.7. Deferred Compensation Agreement or Agreement........2
Section 1.8. Director............................................2
Section 1.9. Exchange Act........................................2
Section 1.10. Investment Election Change Form.....................3
Section 1.11. Investment Program..................................3
Section 1.12. Oshkosh Stock.......................................3
Section 1.13. Participant.........................................3
Section 1.14. Plan................................................3
Section 1.15. Plan Year...........................................3
Section 1.16. Plan Interest Rate..................................3
Section 1.17. Retainer Fee........................................4
Section 1.18. Rule 16b-3..........................................4
Section 1.19. Share Program.......................................4
Section 1.20. Termination.........................................4
Section 1.21. Transfer Election Form..............................4
ARTICLE II. ELIGIBILITY AND PARTICIPATION.....................................5
Section 2.1. Eligibility.........................................5
Section 2.2. Participation.......................................5
Section 2.3. Deferred Compensation Agreements....................5
Section 2.4. Modifications Due to Hardship.......................6
Section 2.5. Beneficiary Designations............................6
Section 2.6. Effect of Change in Control.........................7
ARTICLE III. ACCOUNTS UNDER THE PLAN..........................................8
Section 3.1. Investment Program..................................8
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Section 3.2. Share Program.......................................8
Section 3.3. Participant Investment Directions...................8
Section 3.4. Accounting for Deferred Benefit Accounts............9
Section 3.5. Payroll Tax Withholding.............................9
Section 3.6. Company Match Accounts..............................9
Section 3.7. Participant Statements.............................10
ARTICLE IV. DISTRIBUTIONS ...................................................11
Section 4.1. Form of Distribution...............................11
Section 4.2. Timing of Distribution.............................11
Section 4.3. Benefits Upon Death................................11
Section 4.4. Installment Payment Election.......................12
Section 4.5. Changes to Payment Periods.........................12
Section 4.6. Annual Payment Date................................13
Section 4.7. Hardship Payments..................................13
Section 4.8. Scheduled Distributions While Employed.............13
Section 4.9. Nonalienation......................................13
Section 4.10. Not a Contract of Employment.......................13
Section 4.11. Minimum Size of Accounts to Be Maintained..........13
Section 4.12. Exchange Act Compliance............................13
ARTICLE V. OSHKOSH STOCK ....................................................15
Section 5.1. General............................................15
Section 5.2. No Rights as Shareholder...........................15
Section 5.3. Restrictions on Subsequent Transfer................15
ARTICLE VI. MISCELLANEOUS ...................................................16
Section 6.1. Relation to Other Benefit Plans....................16
Section 6.2. Amendment and Termination..........................16
Section 6.3. Administration of the Plan.........................16
Section 6.4. Rights of Participants.............................16
Section 6.5. Plan is Unfunded...................................17
Section 6.6. Costs of the Plan..................................17
Section 6.7. Severability.......................................17
Section 6.8. Governing Law......................................17
Section 6.9. Binding Upon Successors............................17
DEFINITION OF "CHANGE IN CONTROL" AND RELATED TERMS...........................18
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INTRODUCTION
Oshkosh Truck Corporation created the Deferred Compensation Plan for
Directors and Executive Officers, effective May 19, 1997, to assist eligible
executive officers and nonemployee directors of Oshkosh Truck Corporation and
its affiliates to defer income, typically until retirement, death, or
termination of employment or cessation of service as a member of the Board of
Directors of Oshkosh Truck Corporation.
The Plan is amended and restated effective January 1, 2002, as set
forth herein.
ARTICLE I. DEFINITIONS
Section 1.1. Administrator. "Administrator" means the Human Resources
Committee of the Board of Directors of Oshkosh Truck Corporation. The Executive
Vice President, Corporate Administration, or such Vice President's delegate, is
charged with the day-to-day responsibility of administration of the Plan.
Section 1.2. Board. "Board" means the board of directors of Oshkosh
Truck Corporation.
Section 1.3. Change in Control. "Change in Control" has the meaning
assigned to this term in Exhibit A, attached hereto and incorporated by this
reference.
Section 1.4. Company. "Company" means Oshkosh Truck Corporation.
Section 1.5. Company Match Account. The "Company Match Account" is the
Account described in Section 3.6. All Company Match Accounts are subject to the
vesting rules of the Oshkosh Truck Corporation and Affiliates Tax Deferred
Investment Plan (the "Company 401(k) Plan").
Section 1.6. Deferred Benefit Account. "Deferred Benefit Account" means
the Account established for each Participant under the Plan comprised of
deferred Retainer Fees or compensation amounts, as adjusted to reflect the net
investment return associated with such amounts, as determined under the Plan.
Each Deferred Benefit Account shall have subaccounts representing the portions
of a Participant's Deferred Benefit Account that are held in the Investment
Program and in the Share Program. All Deferred Benefit Accounts under the Plan
are immediately vested and nonforfeitable.
Section 1.7. Deferred Compensation Agreement or Agreement. "Deferred
Compensation Agreement" or "Agreement" is the agreement described in Section
2.3.
Section 1.8. Director. "Director" means any individual who is a
nonemployee member of the Board.
Section 1.9. Exchange Act. "Exchange Act" means the Securities Exchange
Act of 1934, as amended.
Section 1.10. Investment Election Change Form. "Investment Election
Change Form" means an investment election form provided by the Administrator for
this purpose, properly completed and signed by a Participant who wishes to
change the Participant's investment election prospectively as to new deposits or
credits to the Participant's Account.
Section 1.11. Investment Program. The "Investment Program" is the
program described in Section 3.1. Former "Cash Accounts" under the Plan are
deemed to be included in the Investment Program as of January 1, 2002.
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Section 1.12. Oshkosh Stock. "Oshkosh Stock" means the common stock of
the Company, the value of which shall be determined at any relevant time by the
Administrator, taking into account the value at which shares of Oshkosh Stock
are traded on the date in question in representative trades reported in the
principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the Nasdaq National Market on such date, or if
no Oshkosh Stock is traded on such date, the most recent date on which Oshkosh
Stock was traded.
Section 1.13. Participant. "Participant" means each Director and each
executive employee of the Company and its affiliates who is designated by the
Administrator to be eligible and for whom an Account is maintained under the
Plan. Any person with an Account in the Plan who would otherwise no longer be
eligible to be a Participant shall nonetheless continue to be a Participant with
respect to such Account until the Account is fully paid out.
Section 1.14. Plan. "Plan" means the Oshkosh Truck Corporation Deferred
Compensation Plan for Directors and Executive Officers.
Section 1.15. Plan Year. "Plan Year" means the 12-month period
beginning each October 1 and is the fiscal year of the Company. The period from
January 1, 2002, to September 30, 2002, is a short Plan Year.
Section 1.16. Plan Interest Rate. The "Plan Interest Rate" in effect
for a Plan Year quarter is the prime rate on the last business day of the
immediately preceding Plan Year quarter plus one percent (1%). "Prime rate" for
this purpose means the prime rate published for such date in The Wall Street
Journal. This definition of Plan Interest Rate shall be effective as of January
1, 2002, and thereafter, for any portion of an Account held in the Investment
Program.
Section 1.17. Retainer Fee. "Retainer Fee" means those fees paid by the
Company to Directors for services rendered on the Board or any committee of the
Board, including attendance fees and fees for serving as committee chair. Any
Retainer Fee payable for services during a month is deemed to accrue to the
Director on the first day of such month for Plan purposes.
Section 1.18. Rule 16b-3. "Rule 16b-3" means Rule 16b-3 of the General
Rules and Regulations under the Exchange Act as promulgated by the Securities
and Exchange Commission or its successors, as amended and in effect from time to
time.
Section 1.19. Share Program. The "Share Program" is the program
described in Section 3.2. The former "Share Accounts" under the Plan are deemed
to be included in the Share Program as of January 1, 2002. Interests in the
Share Program are measured in units of Oshkosh Stock and are sometimes referred
to herein as "Oshkosh Stock units."
Section 1.20. Termination. "Termination," for a Director, means
cessation of service as a Director. "Termination," for any other Participant,
means their disability, within the meaning of Internal Revenue Code Section
22(e)(3), or their termination of employment with the Company and its affiliates
for any reason other than death.
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Section 1.21. Transfer Election Form. "Transfer Election Form" means a
transfer election form in the form provided by the Administrator, properly
completed and signed by a Participant who wishes to transfer funds from the
Investment Program to the Share Program, or the reverse.
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ARTICLE II. ELIGIBILITY AND PARTICIPATION
Section 2.1. Eligibility. Directors and executive officers elected by
the Board are automatically eligible to participate. The Administrator may
designate other key executive employees as being eligible to participate, in the
Administrator's discretion. Key executive employee means, for this purpose, a
person who is a member of a select group of management or highly compensated
employees of the Company or its affiliates. The Plan is intended to be a top-hat
deferred compensation plan, exempt from the eligibility, vesting, and funding
requirements of the Employee Retirement Income Security Act of 1974, as amended.
Section 2.2. Participation.
(a) Eligible persons must complete a written agreement in order to
participate. This Agreement is called Deferred Compensation Agreement. Deferred
Compensation Agreements must be completed and filed with the Administrator
before the beginning of the Plan Year for which they are initially effective, or
by March 31, 2002, if later, except Deferred Compensation Agreements completed
by newly-eligible persons within thirty (30) days of becoming eligible for the
first time under the Plan may be effective immediately, but only as to
compensation or Retainer Fees earned after the date the Agreement is completed
and filed with the Administrator. Notwithstanding these general rules, however,
no Deferred Compensation Agreement shall be effective with regard to bonus
compensation for services and performance during a Plan Year unless such
Deferred Compensation Agreement has been completed and filed with the
Administrator before March 31 of the Plan Year to which the services and
performance relate or, if later, within thirty (30) days of becoming eligible
for bonus consideration.
(b) A person who ceases to be eligible for Plan participation, but
remains employed, cannot elect any new deferrals under the Plan. Deferred
Compensation Agreements in effect at the time eligibility for Plan participation
ceases may remain in effect in accordance with their terms and the rules of the
Plan through the end of the Plan Year in which eligibility to participate ended.
(c) The Administrator makes all final decisions regarding eligibility
and compliance with the participation requirements.
Section 2.3. Deferred Compensation Agreements.
(a) Deferred Compensation Agreements of Directors must designate the
amount of Retainer Fees that is to be deferred in accordance with Administrator
rules and procedures, using forms that may be supplied by the Administrator for
this purpose. Deferred Compensation Agreements of persons other than Directors
must designate the amount of compensation that is to be deferred and indicate
whether the deferred amount is to be deducted from salary or bonus, or from
both. Salary, for this purpose, refers to base pay before reduction for deferred
compensation amounts but exclusive of bonus or incentive compensation, special
fees or awards, allowances or amounts designated by the Company as payments
toward or for reimbursement of expenses. Bonuses, for this purpose, mean the
annual incentive compensation payable in a Plan Year for services and
performance during the preceding Plan Year.
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(b) Each Deferred Compensation Agreement shall also specify the initial
Plan Year during which the compensation deferral is to take place and the
portion of the deferred compensation amount that is to be directed to the
Investment Program and the Share Program. Deferred Compensation Agreements shall
remain in effect from Plan Year to Plan Year, subject to the right of the
Participant to make changes in the Participant's Agreement that are
prospectively effective as of the first day of the Plan Year commencing after
the date the change is completed in accordance with Administrator rules.
(c) The maximum aggregate deferral under each Deferred Compensation
Agreement shall not exceed the following limits: Retainer Fees--100%;
salary--25%; bonus--100%. The minimum aggregate deferral amount that may be
permitted to be elected for a Plan Year shall not be less than five thousand
dollars ($5,000). The Administrator may, however, adjust these maximum and
minimum limits on a prospective basis in a uniform manner applied to all
similarly situated Participants.
(d) The Company, in the case of Directors, and otherwise the
Participant's employer, will make the corresponding reductions in Retainer Fees
or compensation and the Company will credit such amount to the Participant's
Deferred Benefit Account, making appropriate records to distinguish amounts held
under the Investment Program and the Share Program.
Section 2.4. Modifications Due to Hardship. A Participant's deferral
election for a Plan Year is irrevocable during the Plan Year except for
substantial financial need of a Participant due to serious and unanticipated
family health, education, or housing needs ("hardship"). The Administrator, in
the Administrator's discretion, upon demonstration of hardship, may permit
prospective reduction of the Participant's compensation deferral election for a
Plan Year. A request for reduction in the deferral amount due to hardship must
be submitted in writing, with evidence of hardship, to the Administrator. If the
Administrator approves the request for change, then it will be prospectively
effective only.
Section 2.5. Beneficiary Designations. Each Participant shall complete
a designation of beneficiary when initially completing a Deferred Compensation
Agreement. The beneficiary designation may subsequently be revised by the
Participant. The designated beneficiary of a Participant may include multiple
beneficiaries. If the beneficiary dies before receiving all payments due such
beneficiary, then any remaining payments will be made to the designated
beneficiary's estate unless a contingent beneficiary was designated by the
Participant as to such amounts. If there is a contingent beneficiary, then
payments will be made to the contingent beneficiary and, if such contingent
beneficiary dies, any remaining payments will be made to the contingent
beneficiary's estate. If there is no beneficiary designation in force when Plan
benefits become payable upon the death of a Participant, payment shall be made
to the Participant's spouse, or if no spouse is then living, to the
Participant's estate, as the Participant's deemed beneficiary. All beneficiary
designations must be made in writing and acknowledged by the Administrator.
Section 2.6. Effect of Change in Control. Upon the occurrence of a
Change in Control:
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(a) All deferrals under the Plan of Retainer Fees and compensation
shall cease. Amounts that would otherwise be deferred will, instead, be paid to
Participants currently as Retainer Fees or compensation.
(b) The Accounts of all Participants (whether employed or terminated,
including any whose Accounts are in pay status) shall be paid out in a single
lump sum cash payment to all such Participants within ten (10) business days
after the Change in Control.
(c) Notwithstanding other Plan provisions regarding the timing of
Account valuations, upon the occurrence of a Change in Control, Investment
Program subaccounts shall be updated to the date of payment for earnings and
Share Program subaccounts shall be valued using the higher of the value of
Oshkosh Stock determined on the date of the Change in Control or the highest
price per share of Oshkosh Stock paid in the transaction giving rise to the
Change in Control. If payment is delayed beyond the payment deadline described
in (b) above, for any reason, the balance to be paid out shall become fixed as
of such scheduled payment date, except that such amount shall be increased in an
amount equivalent to interest on such fixed amount, to the date of actual
payment, at a rate equal to two times the Plan Interest Rate.
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ARTICLE III. ACCOUNTS UNDER THE PLAN
Section 3.1. Investment Program. Under the Investment Program, a
Participant's deferred compensation amounts not directed to the Share Program
and any deemed dividends on Company stock directed to the Investment Program as
described in Section 3.2 are deemed to earn interest at the Plan Interest Rate,
compounded quarterly.
Section 3.2. Share Program.
(a) Under the Share Program, a Participant's deferred compensation
amounts directed to the Share Program are deemed to be invested in shares of
Oshkosh Stock. If cash dividends are paid on Oshkosh Stock, a corresponding
deemed dividend amount shall be credited to the Investment Program Account of
each Participant having an Account balance in the Share Program on the
applicable dividend record date. Such deemed dividend amounts are directed to
the Investment Program to simplify Plan recordkeeping and administration. If the
Administrator determines that it is administratively feasible to reinvest such
deemed dividend amounts in the Participant's Share Program Account, the
Administrator may do so, uniformly for all Participants, after giving notice to
all Participants of the change in administrative practice.
(b) All amounts credited to a subaccount in the Share Program shall be
converted to Oshkosh Stock units, taking into account the timing rules of
Section 3.4. No actual shares of Oshkosh Stock shall be purchased or earmarked
for purposes of the Plan.
(c) Participants shall have no rights as a shareholder pertaining to
Oshkosh Stock in relation to their Share Program subaccounts and the Oshkosh
Stock units credited to such subaccounts.
Section 3.3. Participant Investment Directions.
(a) In connection with a Participant's initial Deferred Compensation
Agreement and thereafter, from time to time as determined by the Participant in
accordance with Administrator rules, each Participant shall provide written
investment directions indicating the portion of such Participant's deferred
amount that is to be allocated to the Investment Program and the Share Program.
Any apportionment of newly deposited funds to such Programs shall be in ten
percent (10%) increments, unless other incremental amounts are established by
Administrator rule on a prospective basis, uniformly applied to similarly
situated participants.
(b) An investment direction contained in an initial Deferred
Compensation Agreement shall become effective on the first day of the Plan Year
quarter following the completion of the initial Agreement. An investment
direction contained in an Investment Election Change Form shall become effective
on the October 1 or April 1 following the completion of the Investment Election
Change Form in accordance with Administrator rules.
(c) Subject to the restrictions in (d), below, a Participant may
transfer amounts from the Investment Program to the Share Program, or the
reverse, in ten percent (10%) increments (unless other incremental amounts are
established by Administrator rule on a
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prospective basis, uniformly applied to similarly situated participants) of the
amounts credited to a Program by completing a Transfer Election Form, in
accordance with Administrator rules. Such transfers among Programs shall become
effective on the first day of the Plan Year quarter following the completion of
the Transfer Election Form.
(d) A Participant who is subject to Section 16 of the Securities
Exchange Act of 1934, as amended, may make transfers of existing balances into
or out of the Share Program if the transfer is effected pursuant to an election
made at least six (6) months after the date of the Participant's most recent
opposite-way election making a transfer of existing Account balances out of or
into the Share Program or existing account balances out of or into an Oshkosh
Stock fund under any other Company plan, or more frequently as permitted by the
Administrator.
Section 3.4. Accounting for Deferred Benefit Accounts.
(a) Deferred Benefit Accounts shall be established for each Participant
including subaccounts in the Investment Program and the Share Program, as
applicable. Credits for deferred Retainer Fees and compensation shall be made
not later than the last day of the Plan Year quarter in which such amounts would
otherwise have been received by the Participant.
(b) Subaccounts established for Participants shall be deemed to be
fully invested at all times in the investment program to which the subaccount is
assigned, taking into account the following timing rules. Amounts credited to a
Participant's subaccount in the Investment Program or the Share Program (whether
as deferred Retainer Fees or compensation, or as deemed dividends) are deemed
invested as of the first day of the Plan Year quarter coincident with or
immediately following the date of the crediting of such amounts to the
subaccount. Distributions from an Account, on the other hand, are deemed made on
the first day of the Plan Year quarter in which the distribution is made.
Section 3.5. Payroll Tax Withholding. A Participant's employer may
deduct from non-deferred compensation any taxes it is required to withhold on
deferred amounts unless such amounts are withheld directly from amounts paid out
hereunder.
Section 3.6. Company Match Accounts.
(a) For a Participant other than a Director, who is making pretax
contributions to the Company 401(k) Plan, the Company shall credit to the
Participant's Company Match Account a Company matching contribution on amounts
deferred under this Plan in the same relative amount as is made to the
Participant's pretax savings account in the Company 401(k) Plan on amounts the
Participant has elected to defer under that plan.. This credit will be made not
less frequently than annually following the close of the 401(k) Plan year (the
calendar year). Contributions to a Company Match Account under this Plan shall
not be deemed to be Company matching contributions to the Company 401(k) Plan
for any nondiscrimination testing purposes.
(b) For any 401(k) Plan year, a Participant will not be credited with
an aggregate Company matching amount under this Plan and the Company 401(k) Plan
that is larger than the rate of matching applicable under the Company 401(k)
Plan multiplied by the maximum
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allowable elective deferral amount permitted for the 401(k) Plan year pursuant
to Internal Revenue Code Section 402(g).
(c) Except as described in paragraph (a), a Company Match Account shall
be administered in every respect the same as a subaccount in the Investment
Program under the Plan.
Section 3.7. Participant Statements. Following the close of each year
the Administrator will provide statements of account to each Participant.
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ARTICLE IV. DISTRIBUTIONS
Section 4.1. Form of Distribution.
(a) All distributions to Participants from subaccounts in the
Investment Program shall be in cash. All distributions to Participants from
subaccounts in the Share Program shall be in shares of Oshkosh Stock except that
cash shall be distributed in lieu of fractional shares, and except in the case
of a Change in Control such payment shall be in cash as provided in Section 2.6.
Unless a Participant has reached any other agreement in advance with the
Administrator, all distributions shall be deemed to be made from each Program
pro rata.
(b) Shares of Oshkosh Stock delivered hereunder shall be previously
issued shares reacquired and held by the Company.
(c) All Accounts maintained for the benefit of beneficiaries (i.e.,
persons other than Participants) shall be converted within one year of the
Participant's death to be solely maintained as Investment Program subaccounts
and shall be paid in cash. The timing of the conversion of Share Program
accounts to Investment Program accounts shall be in the sole discretion of the
Administrator.
Section 4.2. Timing of Distribution. Upon the Termination of a
Participant, the Participant's Account shall be determined as of the last day of
the Plan Year quarter immediately preceding the quarter in which such
Termination occurred. Payment of such amount shall be made in a single lump sum
amount within thirty (30) days following the Termination, or as soon thereafter
as is administratively feasible.
Section 4.3. Benefits Upon Death.
(a) Upon the death of a Participant prior to Termination and before any
periodic payments have started, the Company will pay to the designated
beneficiary an installment death benefit over ten (10) years. The amount to be
distributed annually shall be determined by multiplying the aggregate amount of
the deceased Participant's Accounts as of the last day of the Plan Year quarter
preceding the installment payment date by a fraction, the numerator of which is
one (1) and the denominator of which is the number of years remaining for the
payments to be made (e.g., 1/10, 1/9, 1/8, etc.). Additional interest (and
dividends prior to the conversion of such subaccounts to Investment Program
subaccounts pursuant to Section 4.1) are to be credited to amounts during the
installment payment period in the same way such amounts are credited prior to
Termination.
(b) Upon the death of a Participant after Termination and after the
commencement of periodic payments under Section 4.3, such payments shall
continue to be made to the beneficiary until the payment schedule is completed.
(c) Under either (a) or (b), however, the beneficiary may request to
receive a lump sum payment of any unpaid amounts. If such request is approved by
the Administrator, in its sole discretion, the accelerated lump sum payment to
the beneficiary shall be made. The
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Administrator has full discretion to determine whether or not to allow such
acceleration of payment to the beneficiary.
Section 4.4. Installment Payment Election.
(a) A Participant may select the number of years over which the
aggregate amount of the Participant's Accounts is to be paid to the Participant
upon Termination, up to a maximum of ten (10) years. Such election must be made
in the form required by the Administrator and be filed with the Administrator
prior to the initial deferral of any amount hereunder or, if later, by March 31,
2002, in order to give current Participants a reasonable time period to make
this election. A Participant may change the Participant's benefit payment
election as described in Section 4.5. If no valid installment payment election
is in effect when distribution is to be made, then payment of the Participant's
Accounts shall be made in a lump sum, as provided in Section 4.1.
(b) The amount to be distributed annually is determined by multiplying
the aggregate balance (aggregate units for Share Program subaccounts) of the
Participant's Accounts as of the last day of the Plan Year quarter preceding the
installment payment date by a fraction, the numerator of which is one (1) and
the denominator of which is the number of years remaining for the payments to be
made (e.g., 1/10, 1/9, 1/8, etc.). Additional interest and dividends are to be
credited during the installment payment period in the same way interest and
dividends are credited prior to Termination.
(c) Prior to January 1, 2002, each separate Deferred Compensation
Agreement separately permitted the election of an installment payment period.
The number of possible different elections that may be in effect for a
Participant after several years of Plan participation presented complex
administrative challenges that required simplification. Accordingly, effective
January 1, 2002, only a Participant's most recent valid benefit payment election
will be recognized hereunder and it will apply to the Participant's Accounts in
the aggregate. All benefit payment elections made before the most recent valid
election are void and of no effect as of January 1, 2002, for any Participant
not then currently in pay status (i.e., already receiving installment payments
prior to January 1, 2002). Notwithstanding the foregoing simplification of the
payment period election process, any Participant affected by this change may
elect in writing filed with the Administrator before March 31, 2002, a different
payment period (up to the maximum of ten (10) annual payments) to apply to the
Participant's Accounts.
Section 4.5. Changes to Payment Periods.
(a) A Participant who has not previously made an installment payment
election, or who has an installment payment election already in effect, may make
or revoke the election or change the installment payment period, selecting a
payment period of from one (1) to ten (10) years.
(b) Except as provided in Section 4.4 for certain elections that are to
be made by March 31, 2001, any election or change of an installment payment
election must be completed in accordance with Administrator rules not less than
twelve (12) months before the date of the Participant's Termination.
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Section 4.6. Annual Payment Date. All installment payments by the
Company hereunder will be made each year on a January or February payroll date,
as determined by the Administrator, on the basis of Account values determined as
of the immediately preceding December 31. The Administrator may make payments on
other dates where necessary due to hardship, other special circumstances, or
where authorized by Administrator rule.
Section 4.7. Hardship Payments. The Administrator may, in its sole
discretion, upon the finding that the Participant has suffered a hardship (as
described in Section 2.4), distribute to the Participant any portion of the
Participant's Accounts as of such date that is appropriate to the need created
by the hardship.
Section 4.8. Scheduled Distributions While Employed. Any withdrawals
pursuant to this Section that are to be made to a Participant who is subject to
Section 16 of the Exchange Act must be approved by the Administrator. A
Participant may elect to receive, from the Participant's Deferred Benefit
Account, one or more lump sum distributions while employed. A Participant's
election under this Section must be made in writing and filed with the
Administrator not less than twelve (12) months before the date on which a
distribution is to be made. Elections under this Section cannot be revoked less
than twelve (12) months before the scheduled distribution date. Except as
otherwise set forth in any election, amounts shall be distributed
proportionately from the Participant's subaccounts of the Deferred Benefit
Account. The Administrator may establish minimum amounts and limit the frequency
of such elections as needed to assure convenient administration of the Plan.
Section 4.9. Nonalienation. The right of a Participant or any other
person to the payment of Accounts under this Plan shall not be assigned,
transferred, pledged, or encumbered.
Section 4.10. Not a Contract of Employment. This Plan may not be
construed as giving any person the right to be retained as an employee of the
Company, or any of its subsidiaries or affiliates, or a Director.
Section 4.11. Minimum Size of Accounts to Be Maintained. If a balance
in a Participant's subaccount in either the Investment Program or the Share
Program is less than five thousand dollars ($5,000) at the time a payment is to
be made, then such amount shall be paid out in full at the time such payment is
due.
Section 4.12. Exchange Act Compliance. The Administrator may adopt any
additional rules and modify existing Plan rules, procedures, and forms, as
necessary to assure compliance with the insider trading liability rules under
Section 16 of the Exchange Act.
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ARTICLE V. OSHKOSH STOCK
Section 5.1. General.
(a) The amount of Oshkosh Stock units which may be allocated to
Participants' Accounts under the Plan is determined by the amount of Retainer
Fees and compensation deferred under the Plan and the investment directions
provided by Participants.
(b) In the event of any merger, share exchange, reorganization,
consolidation, recapitalization, stock dividend, stock split or other change in
corporate structure affecting Oshkosh Stock, appropriate adjustments shall be
made to the Oshkosh Stock units in the subaccounts in the Share Program for each
Participant, except that any such adjustments to subaccounts for each
Participant subject to Section 16 of the Exchange Act shall be only such as is
necessary to maintain the proportionate interest of such Participant and
preserve, without exceeding, the value reflected by such Participant's
subaccount in the Share Program.
Section 5.2. No Rights as Shareholder. Participants shall have no
rights as a shareholder pertaining to Oshkosh Stock units credited to their
Share Program Accounts. No Oshkosh Stock units hereunder or any right or
interest of a Participant under the Plan in any Oshkosh Stock units may be
assigned, encumbered, or transferred, except by will or the laws of descent and
distribution. The rights of a Participant hereunder with respect to any Oshkosh
Stock or deemed units of Oshkosh Stock are exercisable during the Participant's
lifetime only by the Participant or the Participant's guardian or legal
representative.
Section 5.3. Restrictions on Subsequent Transfer. Any shares of Oshkosh
Stock distributed to Participants under the Plan shall be subject to such stock
transfer orders and other restrictions as the Administrator may deem advisable
under the rules, regulations and other requirements of the Company, any stock
exchange upon which Oshkosh Stock is then listed and any applicable Federal,
state or foreign securities law, and the Administrator may cause a legend or
legends to be put on any such certificates to make appropriate reference to such
restrictions.
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ARTICLE VI. MISCELLANEOUS
Section 6.1. Relation to Other Benefit Plans. Compensation deferred
under the Plan is not compensation for purposes of any tax-qualified defined
benefit plans of the Company or any affiliate. Nothing in this Plan, however,
shall restrict the recognition of compensation deferred hereunder as
"compensation" under the terms of the Company's Executive Retirement Plan and as
compensation for welfare benefit plans, such as life and disability insurance
programs sponsored by the Company and its affiliates.
Section 6.2. Amendment and Termination. The Company may, at any time,
modify, amend, or terminate the Plan. The Company may not, however, reduce any
benefit payment obligation to a Participant based on deferrals already made,
without the Participant's consent. Plan amendments adopted pursuant to this
section shall govern all Deferred Compensation Agreements and all Accounts
uniformly except to the extent otherwise specifically provided by such
amendment. Action by the Company may be taken by the Board or the Plan
Administrator. There shall be no time limit on the duration of the Plan. This
Section shall not restrict the right of the Board to cause all Accounts to be
distributed in the event of Plan termination, provided all Participants and
beneficiaries are treated in a uniform and nondiscriminatory manner.
Section 6.3. Administration of the Plan. The Administrator shall
administer and interpret the Plan, and supervise preparation of Agreements,
forms, and any amendments thereto. Interpretation of the Plan shall be within
the sole discretion of the Administrator and shall be final and binding upon
each Participant and any beneficiary. The Administrator may adopt and modify
rules and regulations relating to the Plan as it deems necessary or advisable
for the administration of the Plan. If at any time the Administrator is not
composed solely of two or more "Non-Employee Directors" within the meaning of
Rule 16b-3, then all determinations affecting participation by persons subject
to Section 16 of the Exchange Act shall be made by the Board. Headings are given
to the sections of the Plan solely as a convenience to facilitate reference. The
reference to any statute, regulation, or other provision of law shall be
construed to refer to any amendment to or successor of such provision of law.
Section 6.4. Rights of Participants. The right of the Participant or a
Participant's beneficiary to receive a distribution hereunder shall be an
unsecured claim against the general assets of the Company or any affiliate and
neither the Participant nor any beneficiary shall have any rights in or against
any amount credited to the Participant's Account or any other specific assets of
the Company or any affiliate. The right of a Participant or beneficiary to the
payment of benefits under this Plan shall not be assigned, encumbered, or
transferred, except by will or the laws of descent and distribution. The rights
of a Participant hereunder are exercisable during the Participant's lifetime
only by the Participant or the Participant's guardian or legal representative.
Section 6.5. Plan is Unfunded. This Plan is unfunded and is maintained
by the Company and its affiliates primarily for the purpose of providing
deferred compensation for nonemployee directors of the Company and a select
group of management and highly compensated employees. Nothing contained in this
Plan and no action taken pursuant to its
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terms shall create or be construed to create a trust of any kind, or a fiduciary
relationship between the Company or any affiliate and any Participant or
beneficiary, or any other person. The Company may authorize the creation of one
or more trusts or other arrangements to assist the Company and its affiliates in
meeting the obligations created under the Plan. Any liability to any person with
respect to the Plan shall be based solely upon any contractual obligations that
may be created pursuant to the Plan. No obligation of the Company or any
affiliate hereunder shall be deemed to be secured by any pledge of, or other
encumbrance on, any property of the Company or any affiliate.
Section 6.6. Costs of the Plan. Costs of establishing and administering
the Plan will be paid by the Company and its affiliates in such proportion as
determined by the Administrator.
Section 6.7. Severability. If any of the provisions of the Plan shall
be held to be invalid, or shall be determined to be inconsistent with the
purpose of the Plan, the remainder of the Plan shall not be affected thereby.
Section 6.8. Governing Law. The Plan is to be construed under the laws
of the State of Wisconsin.
Section 6.9. Binding Upon Successors. This Plan is binding upon the
Company and Participants and their respective successors, assigns, heirs,
executors, and beneficiaries.
OSHKOSH TRUCK CORPORATION
By
--------------------------------
Date:
-------------------------------
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Exhibit A
DEFINITION OF "CHANGE IN CONTROL" AND RELATED TERMS
A "Change in Control" shall be deemed to have occurred if the event set
forth in any one of the following paragraphs shall have occurred:
(a) at any time that either no shares of Class A Common Stock of the
Company are issued and outstanding or Excluded Persons (as defined below) have
ceased to beneficially own a majority of the outstanding shares of Class A
Common Stock of the Company, any Person (other than (A) the Company or any of
its subsidiaries, (B) a trustee or other fiduciary holding securities under any
employee benefit plan of the Company or any of its subsidiaries, (C) an
underwriter temporarily holding securities pursuant to an offering of such
securities, (D) a corporation owned, directly or indirectly, by the shareholders
of the Company in substantially the same proportions as their ownership of stock
in the Company or (E) an Exempt Person ("Excluded Persons")) is or becomes the
"Beneficial Owner" (as such term is defined in Rule 13d-3 under the Act),
directly or indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired directly
from the Company or its Affiliates after January 31, 2000, pursuant to express
authorization by the Board that refers to this exception) representing 25% or
more of (1) the combined voting power of the Company's then outstanding voting
securities or (2) the then outstanding shares of common stock of the Company; or
(b) the following individuals cease for any reason to constitute a
majority of the number of directors then serving: individuals who, on January
31, 2000, constituted the Board and any new director (other than a director
whose initial assumption of office is in connection with an actual or threatened
election contest, including but not limited to a consent solicitation, relating
to the election of directors of the Company, as such terms are used in Rule
14a-11 of Regulation 14A under the Act) whose appointment or election by the
Board or nomination for election by the Company's shareholders was approved by a
vote of at least two-thirds (2/3) of the directors then still in office who
either were directors on January 31, 2000 or whose appointment, election or
nomination for election was previously so approved; or
(c) the shareholders of the Company approve a merger, consolidation or
share exchange of the Company with any other corporation or approve the issuance
of voting securities of the Company in connection with a merger, consolidation
or share exchange of the Company (or any direct or indirect subsidiary of the
Company) pursuant to applicable stock exchange requirements, other than (A) a
merger, consolidation or share exchange that would result in the voting
securities of the Company outstanding immediately prior to such merger,
consolidation or share exchange continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity
or any parent thereof) at least 50% of the combined voting power of the voting
securities of the Company or such surviving entity or any parent thereof
outstanding immediately after such merger, consolidation or share exchange, (B)
a merger, consolidation or share exchange effected to implement a
recapitalization of the Company (or similar transaction) in which no Person
(other than an Excluded Person) is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including
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in the securities beneficially owned by such Person any securities acquired
directly from the Company or its Affiliates after January 31, 2000, pursuant to
express authorization by the Board that refers to this exception) representing
25% or more of (1) the combined voting power of the Company's then outstanding
voting securities or (2) the then outstanding shares of common stock of the
Company or (C) a merger, consolidation or share exchange immediately following
the effectiveness of which shares of Class A Common Stock of the Company will
remain issued and outstanding and Excluded Persons will continue to beneficially
own a majority of the outstanding shares of Class A Common Stock of the Company;
or
(d) the shareholders of the Company approve a plan of complete
liquidation or dissolution of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's assets
(in one transaction or a series of related transactions within any period of 24
consecutive months), other than a sale or disposition by the Company of all or
substantially all of the Company's assets to an entity at least 75% of the
combined voting power of the voting securities of which are owned by Persons in
substantially the same proportions as their ownership of the Company immediately
prior to such sale.
Notwithstanding the foregoing, no "Change in Control" shall be deemed
to have occurred if there is consummated any transaction or series of integrated
transactions immediately following which the record holders of the common stock
of the Company immediately prior to such transaction or series of transactions
continue to have substantially the same proportionate ownership in an entity
that owns all or substantially all of the assets of the Company immediately
following such transaction or series of transactions.
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