EXHIBIT 10.1
WOLVERINE WORLD WIDE, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
TABLE OF CONTENTS
Page
ARTICLE 1 - Establishment of Plan. . . . . . . . . . . . . . . . . . . . .1
1.1 Establishment of Plan. . . . . . . . . . . . . . . . . . . . . .1
1.2 Employer; Company. . . . . . . . . . . . . . . . . . . . . . . .1
1.3 Rabbi Trust. . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.4 Effective Date . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE 2 - Definitions. . . . . . . . . . . . . . . . . . . . . . . . . .2
2.1 Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
2.2 Pension Plan . . . . . . . . . . . . . . . . . . . . . . . . . .2
2.3 Plan Year. . . . . . . . . . . . . . . . . . . . . . . . . . . .2
2.4 Present Value. . . . . . . . . . . . . . . . . . . . . . . . . .2
2.5 Spouse/Married . . . . . . . . . . . . . . . . . . . . . . . . .2
2.6 Surviving Spouse . . . . . . . . . . . . . . . . . . . . . . . .2
ARTICLE 3 - Participant. . . . . . . . . . . . . . . . . . . . . . . . . .3
3.1 Designation as Participant . . . . . . . . . . . . . . . . . . .3
3.2 Inactive Participant Status. . . . . . . . . . . . . . . . . . .3
ARTICLE 4 - Contributions/Funding. . . . . . . . . . . . . . . . . . . . .4
4.1 Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
4.2 No Relationship to Benefits. . . . . . . . . . . . . . . . . . .4
4.3 Unfunded Plan. . . . . . . . . . . . . . . . . . . . . . . . . .4
4.4 Unsecured Creditor Status. . . . . . . . . . . . . . . . . . . .4
ARTICLE 5 - Amount of Benefits . . . . . . . . . . . . . . . . . . . . . .5
5.1 Retirement Benefits. . . . . . . . . . . . . . . . . . . . . . .5
(a) Annual Benefit. . . . . . . . . . . . . . . . . . . . . . .5
(b) Before Age 65 . . . . . . . . . . . . . . . . . . . . . . .6
(c) Annual Pension Benefit. . . . . . . . . . . . . . . . . . .6
5.2 Death. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
(a) Before Commencement of Benefits . . . . . . . . . . . . . .7
(b) After Retiring. . . . . . . . . . . . . . . . . . . . . . .7
5.3 Disability . . . . . . . . . . . . . . . . . . . . . . . . . . .7
(a) Disabled Defined. . . . . . . . . . . . . . . . . . . . . .7
(b) Benefit if Participant Becomes Disabled Before
Retiring. . . . . . . . . . . . . . . . . . . . . . . . . .7
5.4 Minimum Benefit. . . . . . . . . . . . . . . . . . . . . . . . .8
(a) Difference - Additional Benefit . . . . . . . . . . . . . .8
(b) Determinations. . . . . . . . . . . . . . . . . . . . . . .8
ARTICLE 6 - Forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.1 Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.2 Competitive Activity . . . . . . . . . . . . . . . . . . . . . 10
6.3 Insurance Related. . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 7 - Payment of Benefits. . . . . . . . . . . . . . . . . . . . . 11
7.1 Event of Distribution. . . . . . . . . . . . . . . . . . . . . 11
7.2 Form of Payment. . . . . . . . . . . . . . . . . . . . . . . . 11
(a) Presumed Method . . . . . . . . . . . . . . . . . . . . . 11
(b) Optional Methods. . . . . . . . . . . . . . . . . . . . . 11
(c) Lump Sum. . . . . . . . . . . . . . . . . . . . . . . . . 11
7.3 Calculation. . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.4 Time of Payment - Retirement . . . . . . . . . . . . . . . . . 12
(a) At or After Age 65. . . . . . . . . . . . . . . . . . . . 12
(b) Age 55 to 65. . . . . . . . . . . . . . . . . . . . . . . 12
(c) Lump Sum. . . . . . . . . . . . . . . . . . . . . . . . . 12
(d) Delayed Payment . . . . . . . . . . . . . . . . . . . . . 12
7.5 Time of Payment - Death. . . . . . . . . . . . . . . . . . . . 12
(a) Spouse. . . . . . . . . . . . . . . . . . . . . . . . . . 12
(b) Payment to Beneficiary. . . . . . . . . . . . . . . . . . 13
(c) Beneficiary . . . . . . . . . . . . . . . . . . . . . . . 13
(d) Payment to Estate . . . . . . . . . . . . . . . . . . . . 13
(e) Withholding Taxes . . . . . . . . . . . . . . . . . . . . 13
(f) Generation-Skipping Transfer Tax. . . . . . . . . . . . . 13
ARTICLE 8 - Administration . . . . . . . . . . . . . . . . . . . . . . . 14
8.1 Duties, Powers, and Responsibilities of the Employer . . . . . 14
(a) Required. . . . . . . . . . . . . . . . . . . . . . . . . 14
(b) Discretionary . . . . . . . . . . . . . . . . . . . . . . 14
8.2 Employer Action. . . . . . . . . . . . . . . . . . . . . . . . 14
8.3 Plan Administrator . . . . . . . . . . . . . . . . . . . . . . 15
8.4 Duties, Powers, and Responsibilities of the Administrator. . . 15
(a) Plan Interpretation . . . . . . . . . . . . . . . . . . . 15
(b) Participant Rights. . . . . . . . . . . . . . . . . . . . 15
(c) Claims and Elections. . . . . . . . . . . . . . . . . . . 15
(d) Benefit Payments. . . . . . . . . . . . . . . . . . . . . 15
(e) Administrative Information. . . . . . . . . . . . . . . . 15
(f) Recordkeeping . . . . . . . . . . . . . . . . . . . . . . 15
(g) Reporting and Disclosure. . . . . . . . . . . . . . . . . 15
(h) Advisers. . . . . . . . . . . . . . . . . . . . . . . . . 15
(i) Other Powers and Duties . . . . . . . . . . . . . . . . . 16
8.5 Claims Procedure . . . . . . . . . . . . . . . . . . . . . . . 16
(a) Initial Determination . . . . . . . . . . . . . . . . . . 16
(b) Method. . . . . . . . . . . . . . . . . . . . . . . . . . 16
(c) Further Review. . . . . . . . . . . . . . . . . . . . . . 16
(d) Redetermination . . . . . . . . . . . . . . . . . . . . . 16
8.6 Participant's Responsibilities . . . . . . . . . . . . . . . . 16
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ARTICLE 9 - Investment and Administration of Assets . . . . . . . . . . 17
9.1 Rabbi Trust. . . . . . . . . . . . . . . . . . . . . . . . . . 17
9.2 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
9.3 Available to Creditors . . . . . . . . . . . . . . . . . . . . 17
9.4 No Trust or Fiduciary Relationship . . . . . . . . . . . . . . 17
9.5 Benefit Payments . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 10 - Special Change in Control Benefit . . . . . . . . . . . . . 18
10.1 Benefit. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(a) Standard Benefit. . . . . . . . . . . . . . . . . . . . . 18
(b) Minimum Benefit . . . . . . . . . . . . . . . . . . . . . 18
10.2 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . 18
10.3 Method of Payment. . . . . . . . . . . . . . . . . . . . . . . 25
10.4 Successor Obligations in Change of Control Situation . . . . . 25
10.5 Reimbursement of Expenses. . . . . . . . . . . . . . . . . . . 25
ARTICLE 11 - General Provisions. . . . . . . . . . . . . . . . . . . . . 26
11.1 Amendment; Termination . . . . . . . . . . . . . . . . . . . . 26
11.2 Employment Relationship. . . . . . . . . . . . . . . . . . . . 26
11.3 Confidentiality and Relationship . . . . . . . . . . . . . . . 26
11.4 Rights Not Assignable. . . . . . . . . . . . . . . . . . . . . 27
11.5 Construction . . . . . . . . . . . . . . . . . . . . . . . . . 27
11.6 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 27
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WOLVERINE WORLD WIDE, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Wolverine World Wide, Inc. ("Wolverine") hereby adopts the Wolverine
World Wide, Inc. Supplemental Executive Retirement Plan, a supplemental
nonqualified plan for a select group of management personnel employed by
Wolverine and any subsidiary of Wolverine.
ARTICLE 1
ESTABLISHMENT OF PLAN
1.1 ESTABLISHMENT OF PLAN.
This Plan is a supplemental, nonqualified Plan and is intended to be a
Plan for a select group of management and highly compensated employees of
Wolverine and affiliates of Wolverine. This Plan is intended to be a Plan
described in Sections 201(2), 301(a)(3), and 401(a)(1) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). As a
supplemental nonqualified executive retirement program it is not subject to
limitations in the Internal Revenue Code applicable to benefits provided
through a qualified, tax-exempt employee benefit plan established under
Section 401(a) of the Internal Revenue Code of 1986, as amended ("Code").
1.2 EMPLOYER; COMPANY.
"Employer" and "Company" mean Wolverine World Wide, Inc. and any
affiliate of Wolverine World Wide, Inc. which has adopted this Plan with
the consent of Wolverine World Wide, Inc.
1.3 RABBI TRUST.
This Plan may be funded by contributions to a "Rabbi" trust which does
not alter the "unfunded," nonqualified status of the Plan for federal tax
purposes.
1.4 EFFECTIVE DATE.
The "Effective Date" of this Plan is January 1, 1996. Each Plan
provision applies until the effective date of an amendment of that
provision.
ARTICLE 2
DEFINITIONS
2.1 EMPLOYEE.
"Employee" means an individual employed by the Employer who receives
compensation for personal services performed for the Employer that is
subject to withholding for federal income tax purposes.
2.2 PENSION PLAN.
"Pension Plan" means the Wolverine Employees' Pension Plan, a
qualified, tax-exempt defined benefit pension plan established and
maintained by Wolverine under Code Sections 401(a) and 501(a).
2.3 PLAN YEAR.
"Plan Year" means the 12-month period beginning each January 1.
2.4 PRESENT VALUE.
"Present Value" means the present value as computed under the Pension
Plan as of the end of the most recently completed Plan Year, but using the
GATT 30-year Treasury interest rate.
2.5 SPOUSE/MARRIED.
"Spouse" means the husband or wife to whom the Participant is married
on the date the benefit is scheduled to be paid, or payment is scheduled to
begin. The legal existence of the marital relationship shall be governed
by the law of the state or other jurisdiction of domicile of the
Participant.
2.6 SURVIVING SPOUSE.
"Surviving Spouse" means the Spouse of the Participant at the time of
the Participant's death who survives the Participant. If the Participant
and Spouse die under circumstances which prevent ascertainment of the order
of their deaths, it shall be presumed for this Plan that the Participant
survived the Spouse.
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ARTICLE 3
PARTICIPANT
3.1 DESIGNATION AS PARTICIPANT.
Only management and highly compensated Employees shall be eligible to
participate in this Plan.
Wolverine shall designate eligible Employees who shall become
participants ("Participant"). The designation shall be made in writing,
and shall become effective when both the Employer and the Employee have
signed a Participation Agreement in the form attached as Exhibit "A." A
designated eligible Employee shall become a Participant on the date
specified in the Participation Agreement.
3.2 INACTIVE PARTICIPANT STATUS.
The Administrator may notify an Employee Participant in writing at any
time that the Participant is being converted to Inactive Participant
status. An Employee Participant will not accrue additional Years of
Service under this Plan after the date of such notice, unless the
Participant is subsequently designated as a Participant under Section 3.1.
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ARTICLE 4
CONTRIBUTIONS/FUNDING
4.1 AMOUNT.
The Employer is not required to make contributions to fund the
benefits under this Plan. The Employer may make contributions sufficient
to prevent an unfunded liability from adversely affecting financial
disclosures required under generally accepted accounting principles and to
provide reasonable anticipated benefits under this Plan. Employees shall
not make any contributions under this Agreement.
4.2 NO RELATIONSHIP TO BENEFITS.
The benefits provided by this Agreement shall be separate from and
unrelated to any contributions made by Employer (including but not limited
to assets held in a trust created under Article IX of this Plan, if any).
4.3 UNFUNDED PLAN.
This shall be an unfunded Plan within the meaning of ERISA and the
Code. Benefits payable under this Plan constitute only an unsecured
contractual promise to pay in accordance with the terms of this Plan by the
Employer.
4.4 UNSECURED CREDITOR STATUS.
A Participant shall be an unsecured general creditor of the Employer
as to the payment of any benefit under this Plan. The right of any
Participant or Beneficiary to be paid the amount promised in this Plan
shall be no greater than the right of any other general, unsecured creditor
of the Employer.
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ARTICLE 5
AMOUNT OF BENEFITS
5.1 RETIREMENT BENEFITS.
A Participant who has 5 Years of Service after the earlier of
execution of a Participation Agreement under this Plan or a Deferred
Compensation Agreement, or who has reached age 65 before Retiring, will be
entitled to a benefit computed under this Section, unless the benefit is
forfeited under Article 6. For purposes of this Article 5, the terms
"Retiring" or "Retire" shall include any termination of the Participant's
status as an Employee of the Employer.
(a) ANNUAL BENEFIT. The "Annual Benefit" under this Plan will be an
amount computed by multiplying that percentage of the Participant's Average
Earnings which is designated in the Participation Agreement ("Designated
Percentage") by the Participant's Years of Service. The Annual Benefit
shall be reduced by the Participant's Annual Pension Benefit (as defined in
5.1(c) below). Further, if the Participant elects pre-age 65 payment, the
Annual Benefit shall be reduced as provided in 5.1(b) below.
(i) EARNINGS. "Earnings" means Earnings as computed under
the Pension Plan, excluding:
(A) LONG-TERM INCENTIVE PLAN. Any amounts paid to the
Participant under the Wolverine Executive Long Term
Incentive (Three Year) Plan or any comparable long-term
bonus Plan, and
(B) SEVERANCE PAYMENTS. Any payments to the
Participant under any severance agreement or policy.
(ii) AVERAGE EARNINGS. "Average Earnings" means the average
of a Participant's Earnings for the Participant's four
consecutive highest earnings calendar years of the most recent
ten consecutive Years of Service immediately prior to the date
on which the Participant Retires, except that Years of Service
during which a Participant receives a disability benefit under
Section 5.3 of this Plan will be omitted from the calculation of
Average Earnings if doing so will produce higher Average
Earnings. In computing Average Earnings, a Participant's
earnings for the calendar year of retirement or earlier
termination of employment shall be annualized and the Participant
shall be deemed to have received earnings during that entire
calendar year.
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(iii) YEARS OF SERVICE. "Years of Service" means a
Participant's Years of Service under the Pension Plan, except
that: (i) periods during which a Participant is receiving a
disability benefit under Section 5.3 of this Plan will count as
Years of Service for computation of any benefit under this Plan
other than a disability benefit, and will not count as Years of
Service for computation of a disability benefit; (ii) periods
during which a Participant is an Inactive Participant (as defined
in Section 3.2) will not count as Years of Service under this
Plan; (iii) upon the recommendation of the Compensation
Committee, the Board of Directors of the Company may grant a
Participant deemed Years of Service for purposes of this Section;
and (iv) the maximum number of Years of Service used in computing
a benefit under this Plan shall be 25.
(b) BEFORE AGE 65. The benefit payable to a Participant who Retires
before reaching age 65 will be the benefit computed under (a) above,
beginning on the first day of the month following the Participants 65th
birthday.
(i) EARLIER PAYMENT. A Participant who has 10 or more Years of
Service may elect to begin receiving a reduced benefit beginning on
the first day of any month after the Participant attains age 55. If
the Participant begins receiving a benefit between age 60 and 65, the
reduction shall be .1666% (1/6 of 1%) for each month between the date
benefits begin and the first day of the month following that in which
the Participant would attain age 65. If the Participant begins
receiving benefits between age 55 and 60, there shall be an additional
reduction of .333% (1/3 of 1%) for each month between the date
benefits begin and the first day of the month following that in which
the Participant would attain age 60.
(ii) DEEMED EARLY RETIREMENT PENSION ELECTION. A Participant who
is eligible and in fact elects payment prior to the Participant's
attainment of age 65 shall be deemed (for purposes of the Annual
Pension benefit reduction in subsection (c) below) to have elected
Early Retirement under the Pension Plan as of the later of the
Participant's attainment of age 60 or the date that the Participant
begins to receive benefits under this Plan.
(c) ANNUAL PENSION BENEFIT. A Participant's "Annual Pension Benefit"
shall mean the amount of benefit payable to the Participant under the
Pension Plan in the form of a life annuity, prior to any offset for workers
compensation payments.
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5.2 DEATH.
A death benefit shall be payable only under this section.
(a) BEFORE COMMENCEMENT OF BENEFITS. If a Participant dies before
beginning to receive benefits under Section 5.1 or 5.4, the Participant's
Beneficiary will be paid a lump sum death benefit without regard to the
5-year service or minimum age requirements of Section 5.1. The death
benefit shall be equal to the Present Value of the benefit computed under
Section 5.1 as if the Participant had Retired on the date of death, had
begun receiving benefits at age 65, and had continued to receive benefits
for the remainder of the Participant's life expectancy. If the Participant
has received a Disability benefit under Section 5.3, the lump sum death
benefit under this subsection will be reduced by the actuarial value of
benefits received under Section 5.3.
(b) AFTER RETIRING. If a Participant dies after beginning to receive
benefit payments under Section 5.1, benefits shall cease unless the
Participant was receiving benefits in the form of a 50% Joint and Survivor
Annuity, or in any of the forms set forth in subsections 7.2(b).
5.3 DISABILITY.
A Participant (other than an Inactive Participant) who becomes
Disabled while employed by the Employer shall receive the benefit provided
by this section.
(a) DISABLED DEFINED. A Participant is Disabled if the Participant
has a physical or mental condition that entitles the Participant to a
disability benefit under the Pension Plan.
(b) BENEFIT IF PARTICIPANT BECOMES DISABLED BEFORE RETIRING. If a
Participant becomes Disabled before Retiring, and is not an Inactive
Participant at the time of application for a benefit under this Section
5.3, the Participant will receive a disability benefit, without regard to
the 5-year service or minimum age requirement of Section 5.1. The benefit
will equal 60% of the benefit computed under (a) above, based on Years of
Service up to the date the Participant became Disabled. This benefit will
continue until the earliest of the date of Participant's death, the date
Participant reaches age 65 or the date as of which the Participant is no
longer Disabled. Each benefit payment under this subparagraph (b) shall be
reduced by any benefit for the same period payable under any employer
funded disability plan. A reduction shall not be made for benefits from a
disability plan funded by the employee either directly or through a written
salary reduction agreement or program.
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5.4 MINIMUM BENEFIT.
(a) DIFFERENCE - ADDITIONAL BENEFIT. This Section 5.4 shall apply to
Participants who are party to a Deferred Compensation Agreement which is
designated in the Participation Agreement as eligible for the minimum
benefit calculation in this Section 5.4. As of the first date on which
such a Participant begins receiving a benefit under this Plan, or as of the
date a Participant's Beneficiary becomes entitled to a lump sum payment
under this Plan, the Administrator will compare the projected total
benefits to be paid to or on behalf of such Participant under this Plan and
the current Pension Plan to the total benefits which would have been paid
to or on behalf of such Participant if the Deferred Compensation Agreement
had remained in effect, and the Participant had been eligible for an Annual
Pension Benefit under the Pension Plan benefit formula in effect on
December 31, 1994. If the Administrator determines that the total payments
to or on behalf of the Participant under this Plan (before any reduction
for the Participant's Annual Pension Benefit) would be less than the sum
of:
(i) the total payments which would have been made to or on
behalf of the Participant under the Deferred Compensation
Agreement; and
(ii) the Participant's Annual Pension Benefit computed using
the Pension Plan benefit formula in effect on December 31, 1994;
then the difference will be paid to the Participant as an additional
monthly amount under the form of payment elected by the Participant, or, if
a lump sum payment is being made, the difference will be added to the lump
sum payment.
The Administrator will again make the comparison provided for by this
subsection as of the date when all benefits cease under this Plan, and if
additional amounts would be due under the formula set forth above, the
Administrator shall cause a lump sum payment to be made to the
Participant's designated beneficiary or estate.
(b) DETERMINATIONS. In making this determination, the Administrator
shall compute Deferred Compensation Agreement benefits under the terms of
the Deferred Compensation Agreement, except that:
(i) for purposes of computing a lump-sum benefit for which
the Participant would have been eligible under the Deferred
Compensation Agreement due to termination of his employment after
a Change in Control, the terms "Change in Control," "Cause,"
"Disability," "total disability/totally disabled," "Retirement,"
"Notice of Termination," and "Date of Termination" as used in any
such Deferred Compensation Agreement shall be defined as provided
in Article 10 of this Plan; and
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(ii) the Designated Period, as defined in Section 10.2 shall
be used in determining whether the Participant would have been
entitled to accelerated vesting under the Deferred Compensation
Agreement, rather than the 5-year period provided for in the
Deferred Compensation Agreement; and
(iii) the person entitled to receive the benefit will be
determined under this Plan without regard to any former
designation of beneficiary under the Deferred Compensation
Agreement.
In making the benefit comparison under this Section, the
Administrator shall use the actual dates on which a Participant Retires,
dies, or is determined to have become Disabled, and in making the
projection called for the Administrator shall assume that the Participant
and the Participant's Spouse will remain living for their respective life
expectancies. If the dates on which benefits would have been paid under
the Deferred Compensation Agreement differ from the dates on which benefits
are actually paid under this Plan, the Administrator will make the
determination called for by this Section based on the Present Value of both
streams of payments as of the date payments begin under this Plan.
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ARTICLE 6
FORFEITURE
6.1 MISCONDUCT.
Subject to Article 10, a Participant (or Participant's Spouse or
Beneficiary) will not be entitled to any benefits under this Agreement if
the Participant is discharged for dishonesty, commission of a misdemeanor
or felony injurious to the Employer, or any action inimical to the
interests of the Employer, or the Participant resigns while an
investigation is ongoing to determine whether Participant should be
discharged for any such reason and the Administrator determines that
Participant would have been so discharged but for the resignation; or
6.2 COMPETITIVE ACTIVITY.
A Participant (or such Participant's Spouse or Beneficiary) shall not
be entitled to any benefit payment if, prior to the date on which such
benefit payment is due, the Participant has acquired any ownership interest
in a competing business (other than an ownership interest consisting of
less than 5% of a class of publicly traded securities), or has been
employed as director, officer, employee, consultant, adviser, partner or
owner of a competing business. A "competing business" includes any
business which is substantially similar to the whole or any part of the
business conducted by the Employer. Upon the recommendation of the
Compensation Committee, the Board of Directors may partially or completely
waive the application of this provision.
6.3 INSURANCE RELATED.
A Participant (or such Participant's Spouse or Beneficiary) shall not
be entitled to any benefit payment if benefits are not payable under any
policy of life or disability insurance obtained by the Employer to fund its
obligations under this Plan, due to the Participant's suicide or the
Participant's misrepresentation or omission of information required to be
furnished to the insurer in connection with the issuance of such policy.
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ARTICLE 7
PAYMENT OF BENEFITS
7.1 EVENT OF DISTRIBUTION.
Benefit payments shall begin following termination of Participant's
employment at the time and in the manner specified in this Article.
Subject to Article 10, a transfer of employment among the Company and its
subsidiaries is not a termination of employment, nor (subject to Article
10) shall a Participant's employment be deemed terminated if Participant is
offered employment by a successor which purchases all or substantially all
of the assets of the Company and who adopts this Plan.
7.2 FORM OF PAYMENT.
(a) PRESUMED METHOD. A Disability Benefit shall be paid in the form
of a life annuity. Unless a Participant elects otherwise, a Retirement
Benefit shall be paid in the form of a Joint and 50% Survivor Annuity to a
married Participant, or in the form of a Life Annuity to any other
Participant in lieu of the normal form of payment.
(b) OPTIONAL METHODS. A Participant may elect any of the following
actuarially equivalent optional forms for a Retirement Benefit with the
consent of the Company by notifying the Administrator in writing before the
end of the calendar year preceding that in which the Participant begins
receiving a benefit.
(i) 5 OR 10-YEAR CERTAIN AND LIFE. A monthly amount for life to
the Participant, and if the Participant dies before payment of 60 or
120 monthly benefit payments, the same monthly amount shall be paid to
the Participant's Beneficiary until a total of 60/120 monthly payments
have been made.
(ii) JOINT AND 100% SPOUSE ANNUITY. A monthly amount to the
Participant for the Participant's lifetime and in an equal monthly
amount to the Participant's Surviving Spouse, if any, for life.
(c) LUMP SUM. A lump-sum benefit shall not be available except as
provided in this subsection (c).
(i) ELIGIBLE PARTICIPANT/BENEFICIARY. A Participant (or
Beneficiary) who has a benefit under subsection (a) with an
actuarially equivalent Present Value which does not exceed $3,500; a
Participant who is entitled to a Change in Control Benefit; or a
Beneficiary who is entitled to a death benefit under Section 5.2(a)
(death before commencement of benefits) may elect a lump-sum payment.
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(ii) AMOUNT. Except as modified by the provisions of Section
10.1 for a Change of Control Benefit, the amount of the lump sum shall
be the actuarially equivalent present value of the Participant's
benefit payable under the Plan at the Participant's Normal Retirement
Date (as defined in the Pension Plan).
7.3 CALCULATION.
All benefit calculations shall be made as of the date the
Participant's employment terminates or, if later, upon occurrence of the
event which triggers payment of the benefit. Each form of benefit payment
shall be actuarially equivalent to a life annuity and shall be based upon
the actuarial assumptions and factors applicable in the Pension Plan in
effect on the date the Participant's employment terminates.
7.4 TIME OF PAYMENT - RETIREMENT.
(a) AT OR AFTER AGE 65. Retirement benefits under this Plan shall
begin on the first day of the later of the month following that in which
the Participant attains age 65, or that in which the Participant Retires.
(b) AGE 55 TO 65. A Participant who wishes to receive a benefit
provided by Section 5.1(b) may elect to do so, with the consent of the
Company, by notifying the Administrator in writing. Such notice must be
given, if at all, prior to the beginning of the calendar year in which
Participant begins receiving a benefit. The benefit will begin on the
first day of the month designated in such election.
(c) LUMP SUM. Any lump-sum benefit payable under Section 7.2(c)
shall be paid on March 1 following the end of the calendar year in which
the Participant's employment terminates or the Participant dies.
(d) DELAYED PAYMENT. If the payment of benefits begins after the
time specified for payment above, the benefit shall be adjusted for late
payment in the same manner as under the Pension Plan (as in effect on the
date the Participant's employment terminates).
7.5 TIME OF PAYMENT - DEATH.
Benefits shall cease upon a Participant's death unless continued under
this section.
(a) SPOUSE. If a benefit is payable as a Joint and 50/100% Spouse
Annuity and the married Participant dies, payment shall continue to the
Participant's Surviving Spouse until the Spouse's death.
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(b) PAYMENT TO BENEFICIARY. If a benefit is payable as a 5 or 10-
Year Certain and Life annuity and the Participant dies prior to payment of
all amounts due under this Plan, payment of all remaining benefits shall be
made to the Participant's Beneficiary.
(c) BENEFICIARY. "Beneficiary" means the individual, trust or other
entity designated by the Participant to receive any benefits payable under
this Plan after the Participant's death. A Participant may designate or
change a Beneficiary by filing a signed designation with the Administrator
in the form approved by the Administrator. The Participant's Will is not
effective for this purpose. If a designation has not been properly
completed and filed with the Administrator or is ineffective for any other
reason, the Beneficiary shall be the Participant's Surviving Spouse.
Designation of a Beneficiary shall not in itself serve to revoke an actual
election of a Joint and Survivor Annuity method of payment (or a deemed
election under Section 7.2(a)).
(d) PAYMENT TO ESTATE. If there is not an effective designation and
the Beneficiary/Participant does not have a Surviving Spouse, the remaining
benefits, if any, shall be paid to the Participant's estate. If payment is
to be made to the estate of a Participant, payment shall be made in a lump
sum.
(e) WITHHOLDING TAXES. The Employer may withhold from all payments
due to Participant (or his/her beneficiary or estate) hereunder all taxes
which, by applicable federal, state, local or other law, the Employer is
required to withhold therefrom.
(f) GENERATION-SKIPPING TRANSFER TAX. The Employer may withhold any
benefits payable to a Beneficiary as a result of the death of a Participant
or any other Beneficiary until it can be determined whether a generation-
skipping transfer tax, as defined in Chapter 13 of the Code, or any
substitute provision therefor, is payable and the amount of generation-
skipping transfer tax, including interest, that is due. If a tax is
payable, the benefits otherwise payable shall be reduced in an actuarially
equivalent amount to reflect the payment of the generation-skipping
transfer tax and interest. Any benefits withheld shall begin or resume as
soon as there is a final determination of the applicable generation-
skipping transfer tax and interest.
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ARTICLE 8
ADMINISTRATION
8.1 DUTIES, POWERS, AND RESPONSIBILITIES OF THE EMPLOYER.
(a) REQUIRED. The Employer shall be responsible for:
(i) EMPLOYER CONTRIBUTIONS.
(A) AMOUNT. Determining the amount of Employer
Contributions if any.
(B) PAYMENT. Paying, ceasing, or suspending Employer
Contributions if any.
(ii) AGENT OF SERVICE OF PROCESS. Serving as the agent for
service of process;
(iii) AMENDMENT. Amending this Plan and trust; and
(iv) PLAN TERMINATION. Revoking this instrument and
terminating this Plan (and any related trust).
(b) DISCRETIONARY. The Employer may exercise the following
responsibilities:
(i) ALTERNATE ADMINISTRATOR. Designating a Person other than
the Employer as the Administrator; and
(ii) PAYMENT OF ADMINISTRATIVE EXPENSES. Paying administrative
expenses incurred in the operation, administration, management, and
control of the Plan.
(iii) RESERVED POWERS. Designating Participants, crediting a
Participant with deemed Years of Service, or waiving the competitive
activity forfeiture provisions.
8.2 EMPLOYER ACTION.
An action required to be taken by the Employer shall be taken by its
Board of Directors unless the board has delegated the power or
responsibility to one or more Persons identified by its resolution.
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8.3 PLAN ADMINISTRATOR.
"Administrator" means the Employer or a Person designated by the
Employer. The Administrator is a named fiduciary for operation and
management of the Plan and, if this Plan is subject to ERISA, shall have
the responsibilities conferred by ERISA upon the "Administrator" as defined
in ERISA Section 3(16).
8.4 DUTIES, POWERS, AND RESPONSIBILITIES OF THE ADMINISTRATOR.
Except to the extent properly delegated, the Administrator shall have
the following duties, powers, and responsibilities and shall:
(a) PLAN INTERPRETATION. Interpret this instrument (including
resolving an inconsistency or ambiguity or to correcting an error or an
omission). All questions of interpretation, construction, or application
arising under this Agreement shall be decided by the Administrator whose
decision shall be final and conclusive upon all persons, except that the
Administrator's decision shall not be final and conclusive with regard to a
Participant's entitlement to a benefit under Section 10.1;
(b) PARTICIPANT RIGHTS. Determine the rights of Participants and
Beneficiaries under the terms of this Plan;
(c) CLAIMS AND ELECTIONS. Establish or approve the manner of making
an election, designation, application, claim for benefits, and review of
claims;
(d) BENEFIT PAYMENTS. Direct the time that payments are to be made
or to begin, and the elected form of distribution;
(e) ADMINISTRATIVE INFORMATION. Obtain to the extent reasonably
possible all information necessary for the proper administration of this
Plan;
(f) RECORDKEEPING. Establish procedures for and supervise the
establishment and maintenance of all records necessary and appropriate for
the proper administration of this Plan;
(g) REPORTING AND DISCLOSURE. Prepare and file annual and periodic
reports or disclosure documents required under ERISA and Regulations;
(h) ADVISERS. Employ attorneys, actuaries, accountants, clerical
employees, agents, or other Persons who are necessary for operation,
administration, and management of this Plan;
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(i) OTHER POWERS AND DUTIES. Exercise all other powers and duties
necessary or appropriate under this Plan, except those powers and duties
allocated to another named fiduciary.
8.5 CLAIMS PROCEDURE.
The Administrator shall determine all issues arising from the
administration of this Plan.
(a) INITIAL DETERMINATION. Upon application by a Participant or
Beneficiary, the Administrator shall make an initial determination and
communicate the determination to the participant or Beneficiary within 90
days after the application. If the initial determination requires a longer
period, the Administrator shall notify the Participant or Beneficiary that
the 90-day period is extended to 180 days.
(b) METHOD. The decision of the Administrator shall be in writing.
The decision shall set forth (i) the decision and the specific reason for
the decision; (ii) specific reference to the Plan provisions on which the
decision is based; (iii) a description of additional material, information,
or acts that may change or modify the decision; and (iv) an explanation of
the procedure for further review of the decision.
(c) FURTHER REVIEW. Within 60 days of receipt of the initial written
decision, the Participant or Beneficiary filing the original application,
or the applicant's authorized representative, may make a request for
redetermination by the Administrator. The applicant (or the authorized
representative) may review all pertinent documents and submit issues,
comments, and arguments.
(d) REDETERMINATION. Within 60 days of receipt of an application for
redetermination, unless special circumstances require a longer period of
time (but not longer than 120 days after receipt of the application), the
Administrator shall provide the applicant with its final decision, setting
forth specific reasons for the decision with specific reference to plan
provisions on which the decision is based.
8.6 PARTICIPANT'S RESPONSIBILITIES.
All requests for action of any kind by a Participant or Beneficiary
under this Plan shall be in writing and executed by the Participant or
Beneficiary.
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ARTICLE 9
INVESTMENT AND ADMINISTRATION OF ASSETS
9.1 RABBI TRUST.
Contributions to this Plan or assets purchased by Employer with the
intent of defraying the cost of providing benefits under this Agreement may
be held in a Rabbi Trust. The Trust will conform to the terms of the model
Trust set forth in Revenue Procedure 92-65 (or a successor pronouncement by
the Internal Revenue Service).
9.2 INSURANCE.
The Employer may purchase a policy of life insurance on the life of a
Participant (in whom the Employer has an insurable interest) to assist it
in providing the Benefits. The Employer shall be the sole applicant,
owner, premium payer and beneficiary of the policy, and shall exercise all
incidents of ownership. The Employer intends that the value of the policy
while in force and that the death proceeds of the policy shall be excluded
from taxation under Code Sections 7702 and 101(a) respectively.
9.3 AVAILABLE TO CREDITORS.
Any contribution made by Employer or asset held by Trustee related to
this Agreement shall be available to the general creditors of the Employer
as specified in the Trust.
9.4 NO TRUST OR FIDUCIARY RELATIONSHIP.
Except as required by governing law, this Plan shall not create a
trust or fiduciary relationship of any kind between the Participant (or the
Participant's Spouse or Beneficiary) and the Employer or any third party.
9.5 BENEFIT PAYMENTS.
Benefit payments shall be paid directly by the Employer or indirectly
through a grantor trust (owned or maintained by the Employer) to the
Participant or the Participant's Beneficiary. If a trust is established,
the Employer shall not be relieved of its obligation and liability to pay
the benefits of this Plan except to the extent payments are actually made
from the trust.
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ARTICLE 10
SPECIAL CHANGE IN CONTROL BENEFIT
10.1 BENEFIT.
If a Participant's employment with the Company is terminated during
the Designated Period after a Change in Control other than by reason of a
Nonqualifying Termination, then notwithstanding any other provision of this
Plan, the Participant shall be paid, within 30 days following such
termination and in lieu of any other benefit to which Participant,
Participant's Spouse, or Participant's Beneficiary might have been entitled
at any time under this Plan or under any Deferred Compensation Agreement,
the Change in Control Benefit. The Change in Control Benefit shall be the
greater of:
(a) STANDARD BENEFIT. A lump sum equal to 125% of the Present Value
of the payments for which Participant would have been eligible beginning at
age 55 (or at Participant's age on the date the employment terminates, if
greater than 55), without reduction for the early retirement factor set
forth in Section 5.1(b), based on Participant's Years of Service as of the
date Participant's employment terminates; or
(b) MINIMUM BENEFIT. The Minimum Benefit provided in Section 5.4.
10.2 DEFINITIONS.
As used in this Article 10, the following terms shall have the
respective meanings set forth below:
(a) "Cause" means (1) the willful and continued failure by
Participant to substantially perform his or her duties with Company and/or
its subsidiaries (other than any such failure resulting from Participant's
incapacity due to physical or mental illness, or any such actual or
anticipated failure resulting from Participant's termination for Good
Reason) after a demand for substantial performance is delivered to
Participant by the Board and/or its Chairman (which demand shall
specifically identify the manner in which the Board and/or its Chairman
believes that Participant has not substantially performed his or her
duties); or (2) the willful engaging by Participant in gross misconduct
materially and demonstrably injurious to the Company and/or its
subsidiaries. For purposes of this Section, no act or failure to act on the
part of Participant shall be considered "willful" unless done or omitted to
be done by Participant not in good faith and without reasonable belief that
his or her action(s) or omission(s) was in the best interests of the
Company and/or its subsidiaries. Notwithstanding the foregoing,
Participant shall not be deemed to have been terminated for Cause unless
and until the Company provides Participant with a copy of a resolution
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adopted by an affirmative vote of not less than three-quarters of the
entire membership of the Board at a meeting of the Board called and held
for the purpose (after reasonable notice to Participant and an opportunity
for Participant, with counsel, to be heard before the Board), finding that
in the good faith opinion of the Board the Participant has been guilty of
conduct set forth in (1) or (2) above, setting forth the particulars in
detail. A determination of Cause by the Board shall not be binding upon or
entitled to deference by any finder of fact in the event of a dispute, it
being the intent of the parties that such finder of fact shall make an
independent determination of whether the termination was for "Cause" as
defined in (1) and (2) above.
(b) "Change in Control" means:
(1) the acquisition by any individual, entity, or group (a
"Person"), including any "person" within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), of beneficial ownership within the
meaning of Rule 13d-3 promulgated under the Exchange Act, of 20% or
more of either (i) the then outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (ii) the combined
voting power of the then outstanding securities of the Company
entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however, that the
following acquisitions shall not constitute a Change in Control:
(a) any acquisition by the Company, (b) any acquisition by an employee
benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company, (c) any acquisition by
any corporation pursuant to a reorganization, merger, or consolidation
involving the Company, if, immediately after such reorganization,
merger, or consolidation, each of the conditions described in clauses
(i), (ii), and (iii) of subsection (3) of this Section 10.2(b) shall
be satisfied, or (d) any acquisition by the Participant or any group
of persons including the Participant; and provided further that, for
purposes of clause (a), if any Person (other than the Company or any
employee benefit plan (or related trust) sponsored or maintained by
the Company or any corporation controlled by the Company) shall become
the beneficial owner of 20% or more of the Outstanding Company Common
Stock or 20% or more of the Outstanding Company Voting Securities by
reason of an acquisition by the Company and such Person shall, after
such acquisition by the Company, become the beneficial owner of any
additional shares of the Outstanding Company Common Stock or any
additional Outstanding Voting Securities and such beneficial ownership
is publicly announced, such additional beneficial ownership shall
constitute a Change in Control;
(2) individuals who, as of the date hereof, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a
majority of such Board; provided, however, that any individual who
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becomes a director of the Company subsequent to the date hereof whose
election, or nomination for election by the Company's stockholders,
was approved by the vote of at least three-quarters of the directors
then comprising the Incumbent Board (either by a specific vote or by
approval of the proxy statement of the Company in which such person is
named as a nominee for director, without objection to such nomination)
shall be deemed to have been a member of the Incumbent Board; and
provided further, that no individual who was initially elected as a
director of the Company as a result of an actual or threatened
election contest, as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act, or any other actual
or threatened solicitation of proxies or consents by or on behalf of
any Person other than the Board, shall be deemed to have been a member
of the Incumbent Board;
(3) approval by the stockholders of the Company of a
reorganization, merger, or consolidation unless, in any such case,
immediately after such reorganization, merger, or consolidation,
(i) more than 50% of the then outstanding shares of common stock of
the corporation resulting from such reorganization, merger, or
consolidation and more than 50% of the combined voting power of the
then outstanding securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned,
directly or indirectly, by all or substantially all of the individuals
or entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and the Outstanding Company Voting
Securities immediately prior or such reorganization, merger, or
consolidation and in substantially the same proportions relative to
each other as their ownership, immediately prior to such
reorganization, merger, or consolidation, of the Outstanding Company
Common Stock and the Outstanding Company Voting Securities, as the
case may be, (ii) no Person (other than the Company, any employee
benefit plan (or related trust) sponsored or maintained by the Company
or the corporation resulting from such reorganization, merger, or
consolidation (or any corporation controlled by the Company), or any
Person which beneficially owned, immediately prior to such
reorganization, merger, or consolidation, directly or indirectly, 20%
or more of the Outstanding Company Common Stock or the Outstanding
Company Voting Securities, as the case may be) beneficially owns,
directly or indirectly, 20% or more of the then outstanding shares of
common stock of such corporation or 20% or more of the combined voting
power of the then outstanding securities of such corporation entitled
to vote generally in the election of directors, and (iii) at least a
majority of the members of the board of directors of the corporation
resulting from such reorganization, merger, or consolidation were
members of the Incumbent Board at the time of the execution of the
initial agreement or action of the Board providing for such
reorganization, merger, or consolidation; or
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(4) approval by the stockholders of the Company of (i) a plan of
complete liquidation or dissolution of the Company or (ii) the sale or
other disposition of all or substantially all of the assets of the
Company other than to a corporation with respect to which, immediately
after such sale or other disposition, (a) more than 50% of the then
outstanding shares of common stock thereof and more than 50% of the
combined voting power of the then outstanding securities thereof
entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities immediately prior to such sale
or other disposition and in substantially the same proportions
relative to each other as their ownership, immediately prior to such
sale or other disposition, of the Outstanding Company Common Stock and
the Outstanding Company Voting Securities, as the case may be, (b) no
Person (other than the Company, any employee benefit plan (or related
trust) sponsored or maintained by the Company or such corporation (or
any corporation controlled by the Company), or any Person which
beneficially owned, immediately prior to such sale or other
disposition, directly or indirectly, 20% or more of the Outstanding
Company Common Stock or the Outstanding Company Voting Securities, as
the case may be) beneficially owns, directly or indirectly, 20% or
more of the then outstanding shares of Common stock thereof or 20% or
more of the combined voting power of the then outstanding securities
thereof entitled to vote generally in the election of directors and
(c) at least a majority of the members of the board of directors
thereof were members of the Incumbent Board at the time of the
execution of the initial agreement or action of the Board providing
for such sale or other disposition.
Notwithstanding anything contained in this Agreement to the contrary,
if Participant's employment is terminated prior to a Change in Control and
Participant reasonably demonstrates that such termination was at the
request of or in response to a third party who has indicated an intention
or taken steps reasonably calculated to effect a Change in Control (a
"Third Party") who effectuates a Change in Control, then for all purposes
of this Agreement, the date of a Change of Control shall mean the date
immediately prior to the date of such termination of Participant's
employment.
(c) "Common Stock" means the common stock of the Company, $1 par
value per share.
(d) "Date of Termination" means (1) the effective date on which
Participant's employment by the Company and/or its subsidiaries terminates
as specified in a Notice of Termination by the Company or Participant, as
the case may be, or (2) if Participant's employment by the Company and/or
its subsidiaries terminates by reason of death, the date of death of
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Participant. Notwithstanding the previous sentence, (i) if the
Participant's employment is terminated for Disability (as defined in (f)),
then such Date of Termination shall be no earlier than thirty (30) days
following the date on which a Notice of Termination is received, and
(ii) if the Participant's employment is terminated by the Company and/or
its subsidiaries other than for Cause, then such Date of Termination shall
be no earlier than thirty (30) days following the date on which a Notice of
Termination is received.
(e) "Designated Period" means the designated period set forth in the
Participant's Participation Agreement.
(f) "Disability" means Participant's failure to substantially perform
his/her duties with the Company and/or its subsidiaries on a full-time
basis for at least one hundred eighty (180) consecutive days as a result of
Participant's incapacity due to mental or physical illness.
(g) "Good Reason" means, without Participant's express written
consent, the occurrence of any of the following events after a Change in
Control:
(1) (a) the assignment to Participant of any duties inconsistent
in any material adverse respect with Participant's position(s),
duties, responsibilities, or status with the Company and/or its
subsidiaries immediately prior to such Change in Control; (b) a
material adverse change in Participant's reporting responsibilities,
titles or offices with the Company and/or its subsidiaries as in
effect immediately prior to such Change in Control; or (c) any removal
or involuntary termination of Participant by the Company and/or its
subsidiaries otherwise than as expressly permitted by this Agreement
(including any purported termination of employment which is not
effected by a Notice of Termination); or (d) any failure to re-elect
Participant to any position with the Company and/or its subsidiaries
held by Participant immediately prior to such Change in Control;
(2) a reduction by the Company and/or its subsidiaries in
Participant's rate of annual base salary as in effect immediately
prior to such Change in Control or as the same may be increased from
time to time thereafter;
(3) any requirement of the Company and/or its subsidiaries that
Participant (i) be based anywhere other than the facility where
Participant is located at the time of the Change in Control or
reasonably equivalent facilities within twenty five (25) miles of such
facility or (ii) travel for the business of the Company and/or its
subsidiaries to an extent substantially more burdensome than the
travel obligations of Participant immediately prior to such Change in
Control;
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(4) the failure of the Company and/or its subsidiaries to
continue the Company's executive incentive plans or bonus plans in
which Participant is participating immediately prior to such Change in
Control or a reduction of the Participant's target incentive award
opportunity under the Company's Executive Long-Term Incentive (Three
Year) Plan (three-year bonus plan), Executive Short Term Incentive
Plan (annual bonus plan) or other bonus plan adopted by the Company;
(5) the failure of the Company and/or its subsidiaries to
(a) provide any employee benefit plan or compensation plan (including
but not limited to stock option, restricted stock, incentive stock
option or other similar programs) in which Participant is
participating immediately prior to such Change in Control, in
accordance with the most favorable plans, practices, programs and
policies of the Company and/or its subsidiaries in effect for
Participant immediately prior to the Change in Control, unless
Participant is permitted to participate in other plans providing
Participant with substantially comparable benefits; (b) provide
Participant and Participant's dependents with welfare benefits
(including, without limitation, medical, prescription, dental,
disability, salary continuance, employee life, group life, accidental
death and travel accident insurance plans and programs) in accordance
with the most favorable plans, practices, programs, and policies of
the Company and/or its subsidiaries in effect for Participant
immediately prior to such Change in Control; (c) provide fringe
benefits in accordance with the most favorable plans, practices,
programs, and policies of the Company and/or its subsidiaries as in
effect for Participant immediately prior to such Change in Control; or
(d) provide Participant with paid vacation in accordance with the most
favorable plans, policies, programs and practices of the Company
and/or its subsidiaries as in effect for Participant immediately prior
to such Change in Control; or the taking of any action by the Company
and/or its subsidiaries which would adversely affect Participant's
participation in or materially reduce Participant's benefits under any
such plan;
(6) the failure of the Company and/or its subsidiaries to pay
any amounts owed Participant as salary, bonus, deferred compensation
or other compensation;
(7) the failure of the Company to obtain an assumption agreement
from any successor as contemplated in Section 10.4;
(8) the refusal by the Company and/or its subsidiaries to
continue to allow Participant to attend to matters or engage in
activities which did not involve a substantial portion of a
Participant's time and which are not directly related to the business
of the Company and/or its subsidiaries which were permitted by the
Company and/or its subsidiaries immediately prior to such Change in
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Control, including without limitation serving on the Boards of
Directors of other companies or entities;
(9) Any amendment or termination of this Plan which unfavorably
affects a Participant or reduces any protection afforded to a
Participant (including a failure to continue to credit service with
any successor after a change in control for purposes of this Plan).
(10) Any purported termination of Participant's Employment which
is not effected pursuant to a Notice of Termination; and
(11) Any other material breach by Company of its obligations
under any executive severance agreement between the Participant and
the Company.
For purposes of this Agreement, any good faith determination of Good
Reason made by Participant shall be conclusive; provided, however, that an
isolated and insubstantial action taken in good faith and which is remedied
by the Company and/or its subsidiaries within ten (10) days after receipt
of notice thereof given by Participant shall not constitute Good Reason.
Any event or condition described in this subsection (g)(1) through (10)
which occurs prior to a Change in Control, but which Participant reasonably
demonstrates was at the request of or in response to a Third Party who
effectuates a Change in Control, shall constitute Good Reason following a
Change in Control for purposes of this Agreement notwithstanding that it
occurred prior to the Change in Control.
(h) "Nonqualifying Termination" means a termination of Participant's
employment (1) by the Company and/or its subsidiaries for Cause, (2) by
Participant for any reason other than for Good Reason with Notice of
Termination, (3) as a result of Participant's death, and (4) by the
Company and/or its subsidiaries due to Participant's Disability, unless
within thirty (30) days after Notice of Termination is provided to
Participant following such Disability Participant shall have returned to
substantial performance of Participant's duties on a full-time basis.
(i) "Notice of Termination" means written notice of Participant's
Date of Termination by the Company or Participant, as the case may be, to
the other, which (1) indicates the specific termination provision in this
Agreement relied upon, (2) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a basis
for termination of Participant's employment under the provision so
indicated, and (3) specifies the termination date. The failure by
Participant or the Company to set forth in such notice any fact or
circumstance which contributes to a showing of Good Reason or Cause shall
not waive any right of Participant or the Company hereunder or preclude
Participant or the Company from asserting such fact or circumstance in
enforcing Participant's or the Company's rights hereunder.
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10.3 METHOD OF PAYMENT.
Payment shall be made, to the extent possible, by distribution of any
insurance policy or policies purchased by the Company in connection with
this Agreement and in effect on the date of a Change in Control, valued for
distribution purposes at their cash surrender value. Any remaining balance
of the distribution sum shall be paid in cash.
10.4 SUCCESSOR OBLIGATIONS IN CHANGE OF CONTROL SITUATION.
(a) Neither this Plan nor any Participation Agreement shall be
terminated by any merger or consolidation of the Company whereby the
Company is or is not the surviving or resulting corporation or as a result
of any transfer of all or substantially all of the assets of the Company.
In the event of any such merger, consolidation, or transfer of assets, the
provisions of this Plan and of such Participation Agreements shall be
binding upon the surviving or resulting corporation or the person or entity
to which such assets are transferred.
(b) The Company agrees that concurrently with any merger,
consolidation or transfer of assets referred to in paragraph (a) of this
Section 10.4, it will cause any successor or transferee unconditionally to
assume, by written instrument delivered to each Participant (or his/her
beneficiary or estate), all of the obligations of the Company hereunder.
Failure of the Company to obtain such assumption prior to the effectiveness
of any such merger, consolidation or transfer of assets shall constitute
Good Reason hereunder. For purposes of implementing the foregoing, the
date on which any such merger, consolidation, or transfer becomes effective
shall be deemed the date Good Reason occurs, and shall be the Date of
Termination if requested by Executive.
10.5 REIMBURSEMENT OF EXPENSES.
If any contest or dispute shall arise under this Plan or any
Participation Agreement involving a Participant's entitlement to a benefit
under Section 10.1, the Company shall reimburse Participant, on a current
basis, for all legal fees and expenses, if any, incurred by Participant in
connection with such contest or dispute regardless of the result thereof.
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ARTICLE 11
GENERAL PROVISIONS
11.1 AMENDMENT; TERMINATION.
Wolverine World Wide, Inc. may amend this Plan prospectively or
retroactively, or to terminate this Plan, provided that an amendment or
termination may not reduce or revoke the accrued benefits of any
Participant who is already entitled as of the date of such amendment or
termination to a benefit under Section 5.1 of this Plan, regardless of
whether payment of such benefit has commenced. Upon termination of or a
discontinuation of further accrual of benefits under this Plan, the accrued
benefits of affected Participants shall become nonforfeitable and shall be
distributed in accordance with the provisions of this Plan.
11.2 EMPLOYMENT RELATIONSHIP.
This Plan shall not be construed to create a contract of employment
between the Employer and any Participant or to otherwise confer upon a
Participant or other person a legal right to continuation of employment or
any rights other than those specified herein. This Plan shall not limit or
affect the right of the Employer to discharge or retire a Participant.
This Plan does not constitute a contract on the part of the Employer
to employ Employee until age 65 or to continue his employment for any given
period of time, either fixed or contingent. Moreover, Employee does not by
this writing agree to continue in the employment of the Employer for any
specified interval of time. The employment relationship, therefore, shall
continue for so long as, but only for so long as, such employment is
mutually satisfactory to both parties. The Employer does not promise that
Employee's employment will be continued for such interval as to enable
Employee to obtain all or any part of the benefits under this Agreement.
11.3 CONFIDENTIALITY AND RELATIONSHIP.
Each Participant shall agree to refrain from divulging any information
of a confidential nature including, but not restricted to, trade secrets,
operating methods, the names of the Employer's customers and suppliers and
the relations of the Employer with such customers and suppliers, or other
confidential information; and to refrain from using or permitting the use
of such information or confidences by any interests competitive with the
Employer; irrespective of whether or not Participant is then employed by
the Employer, and to refrain from including, and from causing inducements
to be made to, the Employer's employees to terminate employment with the
Employer or undertake employment with its competitors. The obligations
herein assumed by Participant shall endure whether or not the remaining
promises by either party remain to be performed or shall be only partially
performed.
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11.4 RIGHTS NOT ASSIGNABLE.
Except for designation of a Beneficiary, benefits payable under this
Plan shall not be subject to assignment, conveyance, transfer,
anticipation, pledge, alienation, sale, encumbrance, or charge, whether
voluntary or involuntary, by the Participant (or any Spouse or Beneficiary
of the Participant), even if directed under a qualified domestic relations
order or other divorce order. A benefit payable under this Plan shall not
be used as collateral or security for a debt or be subject to garnishment,
execution, assignment, levy, or to another form of judicial or
administrative process or to the claim of a creditor through legal process
or otherwise. An attempt to anticipate, alienate, sell, transfer, assign,
pledge, encumber, charge, or to otherwise dispose of benefits payable,
before actual receipt of the benefits, or a right to receive benefits,
shall be void and shall not be recognized.
11.5 CONSTRUCTION.
The singular includes the plural, and the plural includes the
singular, unless the context clearly indicates the contrary. Capitalized
terms (except those at the beginning of a sentence or part of a heading)
have the meaning specified in this Plan. If a capitalized term is not
defined in this Plan, the term shall have, for purposes of this Plan, the
stated definitions of those terms in the Wolverine Retirement Income Plan
as amended from time to time.
11.6 GOVERNING LAW.
To the extent not preempted by applicable federal law, this Plan shall
be governed by and interpreted under the laws of the State of Michigan.
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EXHIBIT A - 1
WOLVERINE WORLD WIDE, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
PARTICIPATION AGREEMENT
________________________ ("Employee") has been notified by
Wolverine World Wide, Inc. ("Employer") of the Employer's intent to
designate the Employee as a Participant in the Wolverine World Wide, Inc.
Supplemental Executive Retirement Plan ("Plan"). Employer and Employee
have signed this Agreement to effectuate Employee's Participant status and
to agree on certain terms relating to Employee's Participant status.
Therefore, Employer and Employee agree as follows:
1. PARTICIPATION DATE. Employee will become a Participant in
the Plan effective ______________, 19__. Employee agrees to be bound by
the provisions of the Plan.
2. YEARS OF SERVICE. Employee's commencement date for purposes
of computing Years of Service under the Plan is __________________________.
Employee currently has ___ Years of Service.
3. AVERAGE EARNINGS. Employee's current Average Earnings
is $________.
4. DESIGNATED PERCENTAGE. The Designated Percentage under Plan
Section 5.1(a) is 2.4%.
5. DESIGNATED PERIOD. The Designated Period under Plan Section
10.1 is 3 years.
6. DEFERRED COMPENSATION AGREEMENT. Employer and Employee
agree that:
[Check one of the following]
[ ] There is no deferred compensation agreement in effect
as described in Plan Section 5.4(a).
[ ] There is a Deferred Compensation Agreement dated
______________________________________ in effect as
described in Section 5.4(a) of the Plan and attached.
Employee hereby relinquishes all rights under such
Deferred Compensation Agreement, and agrees to look
solely to the terms of the Plan with regard to any
computation of a Minimum Benefit as provided in the
Plan.
7. EMPLOYMENT RELATIONSHIP. Employee agrees that the Plan
shall not be construed to create a contract of employment between the
Employer and the Employee or to otherwise confer upon the Employee or other
person a legal right to continuation of employment or any rights other than
those specified herein. This plan shall not limit or affect the right of
the Employer to discharge or retire the Employee.
This Plan does not constitute a contract on the part of the Employer
to employ Employee until age 65 or to continue his employment for any given
period of time, either fixed or contingent. Moreover, Employee does not by
this writing agree to continue in the employment of the Employer for any
specified interval of time. The employment relationship, therefore, shall
continue for so long as, but only for so long as, such employment is
mutually satisfactory to both parties. The Employer does not promise that
Employee's employment will be continued for such interval as to enable
Employee to obtain all or any part of the benefits under this Agreement.
8. CONFIDENTIALITY AND RELATIONSHIP. Employee agrees to
refrain from divulging any information of a confidential nature including,
but not restricted to, trade secrets, operating methods, the names of the
Employer's customers and suppliers and the relations of the Employer with
such customers and suppliers, or other confidential information; and to
refrain from using or permitting the use of such information or confidences
by any interests competitive with the Employer; irrespective of whether or
not Employee is then employed by the Employer, and to refrain from
including, and from causing inducements to be made to, the Employer's
employees to terminate employment with the Employer or undertake employment
with its competitors. The obligations herein assumed by Participant shall
endure whether or not the remaining promises by either party remain to be
performed or shall be only partially performed.
9. ACKNOWLEDGMENTS. Employee acknowledges the Employer's
rights to:
(a) Amend or terminate the Plan at any time, subject
to Section 11.1 of the Plan; and
(b) To designate the Employee as an Inactive
Participant at any time, as provided in Section 3.2 of the
Plan; and
(c) To make final decisions on any claim or dispute
related to the Plan, as provided in Section 8.5 of the Plan;
and
(d) To exercise any and all other rights of the
Employer under the Plan, in the Employer's sole discretion,
without any limitation other than as expressly set forth in
the Plan.
-2-
Employee agrees that any amendment or termination of the Plan
shall automatically amend or terminate this Agreement, to the extent
permitted by the Plan.
10. AMENDMENTS. Employee agrees that this Agreement may not be
amended orally, but only in a written amendment authorized by the Company's
Board of Directors and signed by the Plan Administrator.
IN WITNESS WHEREOF, the parties have signed this Agreement.
WOLVERINE WORLD WIDE, INC.
Date: ____________________ By: ____________________________________
Its: ______________________________
"Employer"
Date: ____________________ ________________________________________
"Employee"
-3-
EXHIBIT A - 2
WOLVERINE WORLD WIDE, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
PARTICIPATION AGREEMENT
__________________________ ("Employee") has been notified by
Wolverine World Wide, Inc. ("Employer") of the Employer's intent to
designate the Employee as a Participant in the Wolverine World Wide, Inc.
Supplemental Executive Retirement Plan ("Plan"). Employer and Employee
have signed this Agreement to effectuate Employee's Participant status and
to agree on certain terms relating to Employee's Participant status.
Therefore, Employer and Employee agree as follows:
1. PARTICIPATION DATE. Employee will become a Participant in
the Plan effective ______________, 19__. Employee agrees to be bound by
the provisions of the Plan.
2. YEARS OF SERVICE. Employee's commencement date for purposes
of computing Years of Service under the Plan is __________________________.
Employee currently has ___ Years of Service.
3. AVERAGE EARNINGS. Employee's current Average Earnings
is $_________.
4. DESIGNATED PERCENTAGE. The Designated Percentage under Plan
Section 5.1(a) is 2.0%.
5. DESIGNATED PERIOD. The Designated Period under Plan Section
10.1 is 2 years.
6. DEFERRED COMPENSATION AGREEMENT. Employer and Employee
agree that:
[Check one of the following]
[ ] There is no deferred compensation agreement in effect
as described in Plan Section 5.4(a).
[ ] There is a Deferred Compensation Agreement dated
______________________________________ in effect as
described in Section 5.4(a) of the Plan and attached.
Employee hereby relinquishes all rights under such
Deferred Compensation Agreement, and agrees to look
solely to the terms of the Plan with regard to any
computation of a Minimum Benefit as provided in the
Plan.
7. EMPLOYMENT RELATIONSHIP. Employee agrees that the Plan
shall not be construed to create a contract of employment between the
Employer and the Employee or to otherwise confer upon the Employee or other
person a legal right to continuation of employment or any rights other than
those specified herein. This plan shall not limit or affect the right of
the Employer to discharge or retire the Employee.
This Plan does not constitute a contract on the part of the Employer
to employ Employee until age 65 or to continue his employment for any given
period of time, either fixed or contingent. Moreover, Employee does not by
this writing agree to continue in the employment of the Employer for any
specified interval of time. The employment relationship, therefore, shall
continue for so long as, but only for so long as, such employment is
mutually satisfactory to both parties. The Employer does not promise that
Employee's employment will be continued for such interval as to enable
Employee to obtain all or any part of the benefits under this Agreement.
8. CONFIDENTIALITY AND RELATIONSHIP. Employee agrees to
refrain from divulging any information of a confidential nature including,
but not restricted to, trade secrets, operating methods, the names of the
Employer's customers and suppliers and the relations of the Employer with
such customers and suppliers, or other confidential information; and to
refrain from using or permitting the use of such information or confidences
by any interests competitive with the Employer; irrespective of whether or
not Employee is then employed by the Employer, and to refrain from
including, and from causing inducements to be made to, the Employer's
employees to terminate employment with the Employer or undertake employment
with its competitors. The obligations herein assumed by Participant shall
endure whether or not the remaining promises by either party remain to be
performed or shall be only partially performed.
9. ACKNOWLEDGMENTS. Employee acknowledges the Employer's
rights to:
(a) Amend or terminate the Plan at any time, subject
to Section 11.1 of the Plan; and
(b) To designate the Employee as an Inactive
Participant at any time, as provided in Section 3.2 of the
Plan; and
(c) To make final decisions on any claim or dispute
related to the Plan, as provided in Section 8.5 of the Plan;
and
(d) To exercise any and all other rights of the
Employer under the Plan, in the Employer's sole discretion,
without any limitation other than as expressly set forth in
the Plan.
-2-
Employee agrees that any amendment or termination of the Plan
shall automatically amend or terminate this Agreement, to the extent
permitted by the Plan.
10. AMENDMENTS. Employee agrees that this Agreement may not be
amended orally, but only in a written amendment authorized by the Company's
Board of Directors and signed by the Plan Administrator.
IN WITNESS WHEREOF, the parties have signed this Agreement.
WOLVERINE WORLD WIDE, INC.
Date: ______________________ By: ____________________________________
Its: ______________________________
"Employer"
Date: ______________________ ________________________________________
"Employee"
-3-