LIQUI-BOX CORPORATION
EXECUTIVE DEFERRED COMPENSATION PLAN
EFFECTIVE: DECEMBER 1, 1999
LIQUI-BOX CORPORATION
EXECUTIVE DEFERRED COMPENSATION PLAN
Effective December 1, 1999, Liqui-Box Corporation adopts this Plan to provide
deferred compensation to a select group of its management or highly compensated
employees. This Plan is intended to be an unfunded, nonqualified program of
deferred compensation within the meaning of Title I of ERISA.
ARTICLE I
DEFINITIONS
Whenever used in this Plan, the following words and phrases will have the
meaning given below. Also, the singular form of any term will include the
plural, the plural form will include the singular, the masculine pronoun will
include the feminine and the feminine pronoun will include the masculine. Other
words and phrases also may be defined in the Plan text.
ACCOUNTS means the Nonqualified Employee Deferral Accounts, Employer
Nonqualified Matching Contribution Accounts, Nonqualified Stock Option Accounts
and Employer Discretionary Contribution Accounts described in Section 4.01.
AFFILIATE means any entity which, together with the Company, is a member of a
controlled group of corporations or of a commonly controlled group of trades or
businesses [as defined in Code (delta)(delta)414(b) and (c), as modified by
Code(delta)415(h)] or of an affiliated service group [as defined in Code
(delta)414(m)] or other organization described in Code (delta)414(o).
BENEFICIARY means the person or persons designated by a Participant under
Section 2.02 to receive any death benefits payable under Section 6.03.
BOARD means the Company's board of directors.
CHANGE IN CONTROL means the earliest of any of the following:
(a) A date after the Effective Date that any entity or person
(including a "group" as defined in Section 13(d)(3) of the Exchange
Act) becomes the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of 20 percent or more of the Company's outstanding Common
Shares. However, a Change in Control under this paragraph will be
determined without regard to:
(i) Any acquisition by or through an employee benefit plan
maintained by the Company or any Affiliate;
(ii) Any acquisition through a stock option program
maintained by the Company or any Affiliate;
(iii) Any acquisition through inheritance, gift, bequest or
by operation of law on the death of an individual by
distribution from a trust in existence on the Effective
Date; or
(iv) The redemption of Common Shares by the Company.
(b) The date the Company's shareholders approve a definitive
agreement (i) to merge or consolidate the Company with or
into another corporation in which the Company is not the
continuing or surviving corporation or pursuant to which any
Common Shares would be converted into cash, securities or
other property of another corporation, other than a merger
of the Company in which holders of Common Shares immediately
before the merger have the same proportionate ownership of
shares of the surviving corporation immediately after the
merger as immediately before, or (ii) to sell or otherwise
dispose of substantially all of the Company's assets.
(c) The date there is a change in a majority of the Board within
a 12 month period; provided, however, that any new director
whose nomination for election by the Company's shareholders
was approved, or who was appointed or elected to the Board
by, the vote of two-thirds of the directors then still in
office who were in office at the beginning of the 12 month
period will not be counted when determining if there has
been a change in the majority of the Board.
CODE means the Internal Revenue Code of 1986, as amended.
COMMITTEE means the Plan Committee described in Article VII.
COMMON SHARES means the common shares of the Company, without par value.
COMPANY means Liqui-Box Corporation and any successor to it.
COMPENSATION means (a) each Participant's taxable remuneration (including salary
and incentive bonuses) earned from an Employer after the latest of (i) the
Effective Date, (ii) the date he or she becomes a Participant or (iii) the date
specified in the Participant's Deferral Notice, (b) reduced by any non-cash
remuneration and (c) increased by deferrals made during the same period under
(i) the Qualified 401K Plan, (ii) this Plan and (iii) any cafeteria plan
maintained by an Employer under Code (delta)125.
DEFERRAL NOTICE means the notice that each Executive must complete to specify
the portion of his or her Compensation to be deferred under the Plan. In
addition, a Participant's Deferral Notice may specify the portion of any gain on
the exercise of any Nonqualified Stock Option that is to be deferred under the
Plan. Although a copy of this form is attached to the Plan, it is not a part of
the Plan and may be modified by the Committee without separate action by the
Board.
EFFECTIVE DATE means December 1, 1999.
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EMPLOYER means the Company and any Affiliate which, with the Company's consent,
adopts this Plan.
EMPLOYER DISCRETIONARY CONTRIBUTION ACCOUNT means the account established for
any Participant to whom the Board or the Board's compensation committee awards
an Employer Discretionary Contribution described in Section 3.03.
EMPLOYER NONQUALIFIED MATCHING CONTRIBUTION ACCOUNT means the account
established for each Participant to which Nonqualified Employer Matching
Contributions described in Section 3.02 are allocated.
ENROLLMENT FORM means the form that each Executive must complete before he or
she may participate in the Plan. To be effective, this notice must include all
of the information described in Section 2.01(b). Although a copy of this form is
attached to the Plan, it is not a part of the Plan and may be modified by the
Committee without separate action by the Board.
ERISA means the Employee Retirement Income Security Act of 1974, as amended.
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended.
EXECUTIVE means each (a) officer of the Company or an Affiliate or (b) employee
of the Company or an Affiliate who is included in the "B-1," "C" or "D"
incentive bonus pools and (c) who also is a member of a select group of
management or highly compensated employees of the Company or an Affiliate.
INACTIVE PARTICIPANT means a Participant who is actively employed by an Employer
but (a) no longer meets the eligibility conditions described in Section 2.01 or
(b) has suspended his or her deferrals under Sections 3.01(b) and 3.04 and is
not receiving an allocation under Section 3.03.
INVESTMENT FUNDS means the funds established by the Committee under Section
5.01. At least one Investment Fund must be comprised of securities other than
Common Shares.
NONQUALIFIED EMPLOYEE DEFERRAL ACCOUNT means the account established for each
Participant to which the deferrals described in Section 3.01 are allocated.
NONQUALIFIED STOCK OPTION means any nonqualified stock option granted to an
Executive under any stock option or stock incentive plan or program maintained
by the Company.
NONQUALIFIED STOCK OPTION ACCOUNT means the account established for each
Participant to which the deferrals described in Section 3.03 are allocated.
PARTICIPANT means (a) an Executive who is participating in the Plan as provided
in Section 2.01, (b) an Inactive Participant or (c) a former Executive who has
terminated employment with each Employer but for whom Participant Accounts are
being maintained.
PLAN means the Liqui-Box Corporation Executive Deferred Compensation Plan, as
described in this document and any amendments to it.
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PLAN YEAR means the calendar year. For the initial year of the Plan, the Plan
Year will be a short year, beginning on the Effective Date and ending on
December 31, 1999.
QUALIFIED 401K PLAN means the Liqui-Box Corporation Employees' Profit Sharing
and Salary Deferral Plan and any amendments to it.
QUALIFIED 401K LIMIT means (a) the limits imposed by Code
(delta)(delta)401(a)(17), 402(g) and 415 and (b) the actual deferral and
contribution percentages for highly compensated employees calculated under the
Qualified 401K Plan for the year that any Deferral Notice is in effect.
SPOUSE OR SURVIVING SPOUSE means an individual who is legally married to the
Participant.
TRUST AGREEMENT means the separate agreement between the Company and the Trustee
described in Article X.
TRUSTEE means the person appointed to administer the fund created under the
Trust Agreement.
VALUATION DATE means the last day of each calendar quarter ending with or within
each Plan Year, or more frequent periods if the Committee, in its sole
discretion, decides that more frequent valuations are needed for any reason.
YEAR OF SERVICE means a year of service credited to a Participant under the
Qualified 401K Plan for purposes of calculating the extent to which the
Participant is vested in his or her Qualified 401K Plan benefit.
ARTICLE II
PARTICIPATION
2.01. ELIGIBILITY AND ELECTION TO PARTICIPATE
(a) In its sole discretion, the Committee will decide which Executives may
participate in the Plan and the earliest date on which they may participate.
(b) Before he or she may participate in the Plan, each eligible Executive must
complete:
(i) An Enrollment Form specifying (A) the date on which the Executive
elects to participate (which may not be earlier than the date specified
by the Committee), (B) the time when his or her Accounts will be
distributed (Section 6.02), (C) if appropriate, how his or her Accounts
will be distributed (Section 6.06), (D) how the value of his or her
Accounts will be measured (subject to the restrictions imposed under
Section 5.01), and (E) his or her Beneficiary.
(ii) A Deferral Notice, to specify (A) the portion of his or her
Compensation to be deferred to the Plan and the portion (if any) of his
or her gain on the exercise of any Nonqualified Stock Option to be
deferred to the Plan.
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The elections made in an Enrollment Form and a Deferral Notice will continue to
be effective until changed.
(c) An eligible Executive will continue to participate until the earlier of the
date he or she (i) becomes an Inactive Participant or (ii) terminates employment
with all Employers.
2.02. DESIGNATION OF BENEFICIARY
(a) Each Executive must designate one or more Beneficiaries when he or she
completes an Enrollment Form. Unless a Participant who designates more than one
Beneficiary also specifies the sequence or the portion of the death benefit to
be paid to each Beneficiary, the death benefit will be paid in equal shares to
all named Beneficiaries.
(b) A Participant may change his or her Beneficiary at any time by identifying
the new Beneficiary in the appropriate portion of a revised Enrollment Form and
delivering that completed form to the Committee. No change of Beneficiary will
be effective until the revised Enrollment Form is received by the Committee. The
identity of a Participant's Beneficiary will be based only on the designation in
the form described in this Section and will not be inferred from any other
evidence.
(c) If a Participant has not made an effective Beneficiary designation or if all
of his or her Beneficiaries die before the Participant, Plan death benefits will
be paid to the Participant's Surviving Spouse. If there is no Surviving Spouse,
these death benefits will be paid (i) to the Participant's issue, then living,
per stirpes; or, if there are none (ii) to the Participant's executors or
administrators. Any minor's share of a Plan death benefit will be paid to the
adult who has been appointed to act as the minor's legal guardian and who has
assumed custody and support of that minor.
(d) The Participant and the Beneficiary (and not the Committee) are responsible
for ensuring that the Committee has the Beneficiary's current address.
ARTICLE III
CONTRIBUTIONS
3.01. PARTICIPANT DEFERRALS
(a) For each Plan Year, every Participant may defer up to 100 percent of
his or her Compensation. The Committee will establish deferral election
procedures that must be followed to make this election. Each
Participant's deferrals will be credited first to his or her account
under the Qualified 401K Plan. However, after the Qualified 401K Limit
has been reached for the year, all subsequent deferrals will be
credited under this Plan to the Participant's Nonqualified Employee
Deferral Account.
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(b) A Participant may change or suspend the amount being deferred under
paragraph (a) by revising the appropriate Deferral Notice or Enrollment Form in
accordance with rules established by the Committee. Subject to Section 2.01(a),
a Participant who suspends his or her deferrals under paragraph (a) may rejoin
the Plan by returning to the Committee a completed Enrollment Form and by
completing a Deferral Notice that includes all of the information described in
Section 2.01(b). A suspension of his or her deferrals under paragraph (a) will
have no effect on the Participant's ability to make a deferral election under
Section 3.04.
(c) Participant deferrals under paragraph (a) will be made only by payroll
deductions authorized by the Participant.
3.02. EMPLOYER NONQUALIFIED MATCHING CONTRIBUTIONS
(a) For each Plan Year, the Employer will contribute for each Participant the
amount calculated under the following formula:
(i) The smaller of (A) the deferral made under Section 3.01(a) or (B)
the deferral made under Section 3.01(a) that would have been matched
under the Qualified 401K Plan but for the Qualified 401K Limits,
MULTIPLIED BY
(ii) The rate at which these deferrals are matched under the Qualified
401K Plan for that Plan Year, MINUS
(iii) The actual matching contribution made for that Plan Year under
the Qualified 401K Plan.
(b) Employer Nonqualified Matching Contributions calculated under this formula
will be allocated to the Employer Nonqualified Matching Contribution Accounts of
Participants who both (i) deferred a portion of their Compensation to the Plan
for the Plan Year for which the matching contribution is made; and (ii) are
employed by an Employer on the last day of the Plan Year for which the
contribution is made. The Committee will determine the time and manner in which
Employer Nonqualified Matching Contributions will be made.
3.03 EMPLOYER DISCRETIONARY CONTRIBUTIONS
The Board or the Board's compensation committee may make Employer Discretionary
Contributions for any Plan Year. This contribution may be different for each
Plan Year. Also, the Board or the Board's compensation committee may decide to
make no Employer Discretionary Contribution for any Plan Year or to make
different Employer Discretionary Contributions for each Participant. Any
Employer Discretionary Contribution will be allocated to the Employer
Discretionary Contribution Account established for the Executive for whose
benefit this contribution is made.
3.04 NONQUALIFIED STOCK OPTION DEFERRALS
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By completing the appropriate portion of the Deferral Notice, each Executive may
elect to defer any gain that would otherwise be recognized on the exercise of
any Nonqualified Stock Option. If this is done, any gain that the Executive
otherwise would have received on the exercise of the Nonqualified Stock Option
will be credited to his or her Nonqualified Stock Option Account. However, an
Executive may defer this gain only if (a) he or she exercises the Nonqualified
Stock Options under the terms of the plan or program through which the
Nonqualified Stock Options are issued and (b) that plan or program provides that
the gain may be deferred under this Plan. Once made, an election under this
Section may not be revoked.
ARTICLE IV
PARTICIPANT'S ACCOUNTS; ALLOCATIONS
4.01. PARTICIPANT'S ACCOUNTS
The Committee will maintain:
(a) An Employer Nonqualified Matching Contribution Account to record the
Participant's share of:
(i) The Employer Nonqualified Matching Contributions calculated under
Section 3.02, adjusted by the net income, gains or losses attributable
to those amounts (Section 4.02); MINUS
(ii) Any distributions made from this account.
(b) A Nonqualified Employee Deferral Account to record:
(i) The Participant's deferrals calculated under Section 3.01, adjusted
by the net income, gains or losses attributable to those amounts
(Section 4.02); MINUS
(ii) Any withdrawals or distributions made from this account.
(c) An Employer Discretionary Contribution Account to record:
(i) Any Employer Discretionary Contributions awarded to that
Participant under Section 3.03, adjusted by the net income, gains and
losses attributable to those amounts (Section 4.02) MINUS
(ii) Any distributions from this account.
(d) A Nonqualified Stock Option Account to record:
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(i) The amount of any the Participant has elected to defer on the
exercise of his or her Nonqualified Stock Options under Section 3.04,
adjusted by the net income, gains and losses attributable to those
amounts (Section 4.02) MINUS
(ii) Any distributions from this account.
4.02. CALCULATING NET GAINS OR LOSSES; CREDITING OF ACCOUNTS
As of each Valuation Date, the fair market value of each Investment Fund will be
calculated under Section 5.02. Any increase or decrease in the value of each
Investment Fund, less associated administrative and other Plan expenses
described in Section 7.07, will be allocated to the Accounts of each Participant
who invested in that fund since the preceding Valuation Date. This allocation
will be based on (a) the value of the Investment Fund on the preceding valuation
date and (b) the portion of that value comprised of the Participant's Accounts.
ARTICLE V
INVESTMENT OF CONTRIBUTIONS AND VALUATION OF FUNDS
5.01. INVESTMENT FUNDS
(a) The Committee will establish and maintain one or more Investment Funds under
the Trust described in Article X. Each Participant must select the Investment
Fund or funds into which amounts credited to his or her Employer Nonqualified
Matching Contribution Account, Nonqualified Employee Deferral Account and
Employer Discretionary Contribution Account will be invested. This is done by
completing the appropriate section of the Enrollment Form. The Committee will
establish and announce to Participants rules and regulations relating to
Participants' investment selections, including the frequency with which
investment selections may be changed and the minimum percentage of a
Participant's Account that may be treated as invested in each Investment Fund.
(b) Subject to Section 6.09, all amounts held in a Participant's Nonqualified
Stock Option Account will be invested in Common Shares. These shares will be
credited with any stock and cash dividends paid with respect to other Common
Shares of the same class and type and will be adjusted for any stock splits.
Cash dividends paid with respect to these Common Shares will be invested as
provided in Section 5.01(a). Stock dividends will be held in Common Shares.
5.02. VALUATION OF INVESTMENT FUNDS
As of each Valuation Date, the Committee will determine the actual market value
of each Investment Fund established under Section 5.01. The value of each
Investment Fund will be allocated to Participants' Accounts as provided in
Section 4.02.
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ARTICLE VI
AMOUNT AND DISTRIBUTION OF BENEFITS
6.01. DISTRIBUTION EVENTS
Participants' Accounts will be distributed at the earliest of (a) the time the
Participant specifies in his or her Enrollment Form (Section 6.02) or (b) the
date the Participant (i) dies (Section 6.03), (ii) becomes disabled (Section
6.04), (iii) incurs a financial hardship (Section 6.05) or (iv) terminates
employment with all Employers.
6.02. SPECIFIED DISTRIBUTIONS
Subject to Section 9.01, when completing an Enrollment Form, each Participant
must specify the date that the value of his or her Accounts will be distributed.
Once made, this election will continue to apply until it is changed, subject to
any limitations imposed by the Committee.
6.03. DEATH BENEFITS
The vested value of the Accounts maintained for a deceased Participant will be
paid to that Participant's Beneficiary as of the Valuation Date following the
Participant's death and in the form selected in the Enrollment Form. Any
Beneficiary claiming a death benefit under the Plan must provide the Committee
with satisfactory proof of the Participant's death before any death benefit will
be paid. These distributions will be made in the form described in Section 6.06.
6.04. DISABILITY BENEFITS
A Participant who becomes disabled will receive a distribution of the vested
value of his or her Accounts, determined as of the Valuation Date following the
date the disability is established in the form selected in the Enrollment Form.
A Participant will be considered disabled on the date that it is established by
a licensed physician selected by the Committee that he or she is not able to
engage in any substantial gainful activity because of a medically determinable
physical or mental impairment that is expected to result in death or to be of
long, continued and indefinite duration. The Committee will consistently apply
uniform principles when determining if a Participant is disabled. These
distributions will be made in the form described in Section 6.06.
6.05. HARDSHIP WITHDRAWALS
In its sole discretion, the Committee may distribute all or a portion of the
vested value of a Participant's Beneficiary's Nonqualified Employee Deferral
Account and Nonqualified Stock Option Account before the date otherwise
determined under Section 6.02 if the Committee decides that the applicant has
encountered a severe financial hardship. For these purposes, an applicant will
have incurred a "severe financial hardship" only if he or she needs an immediate
distribution to meet a current and heavy financial expense associated with (i) a
sudden or unexpected illness or accident incurred by the applicant or a member
of the applicant's immediate family or (ii) the loss of the applicant's property
due to casualty or other similar extraordinary and unforeseeable circumstance
attributable to events beyond the applicant's
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control. A distribution based on financial hardship will be made in a lump sum
and will not be larger than the smaller of (iii) the amount needed to meet the
immediate financial need created by the hardship, reduced by the value of the
amount that may be withdrawn as a hardship withdrawal from the Qualified 401K
Plan or (iv) the value of the applicant's Nonqualified Employee Deferral and
Nonqualified Stock Option Accounts as of the most recent Valuation Date. If a
financial event qualifies as a "hardship" under both this Plan and the Qualified
401K Plan, an applicant may not withdraw any amount from this Plan until he or
she has made the maximum withdrawal allowable under the Qualified 401K Plan and
any withdrawal rights under this Plan will not be available for purposes of
calculating the amount that may be withdrawn from the Qualified 401K Plan.
6.06. AMOUNT AND PAYMENT OF WITHDRAWALS
Subject to Sections 6.09 and 9.01, all distributions made from the Plan to a
Participant or to his or her Beneficiary will be effective as of the Valuation
Date immediately preceding the date the distribution is to be made and will be
paid in the form the Participant selected from among those described in the
Enrollment Form. These distribution forms will be limited to (i) a single lump
sum payment of the full value of the Participant's Account, or (ii) a series of
monthly, quarterly or annual installments (whichever the Participant selected)
for a period not longer than ten years. A Participant or Beneficiary may ask the
Committee to change the form in which his or her benefit will (or is) being
distributed. This request must be made in writing and, unless it relates to a
hardship distribution described in Section 6.05, will be approved by the
Committee only to the extent that it affects distributions made more than 12
months after the date that request is received by the Committee. Once a
Participant's Accounts have been fully distributed, the Company, all Employers
and the Plan will have no further liability to the Participant or, if
appropriate, to his or her Beneficiary.
6.07. VESTED BENEFITS
Subject to paragraph (c), the benefit payable under the Plan to any Participant
will equal:
(a) 100 percent of the value of his or her Nonqualified Employee Deferral and
Nonqualified Stock Option Accounts; and
(b) Subject to Sections 6.09 and the other provisions of this Section, the
percentage of the undistributed value of his or her Employer Nonqualified
Matching Contribution and Employer Discretionary Contribution Accounts
determined under the following schedule:
YEARS OF SERVICE VESTED PERCENTAGE
---------------- -----------------
Fewer than 3 0 percent
3 20 percent
4 40 percent
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5 60 percent
6 80 percent
7 or more 100 percent
Any forfeitures that arise from a Participant's termination of employment before
he or she is fully vested (other than terminations described in Section
6.07(c)(i) and (ii)) in his or her Employer Nonqualified Matching Contribution
or Employer Discretionary Contribution Accounts are fully vested will, in the
Company's discretion, be used to reduce future Employer Nonqualified Matching or
Employer Discretionary Contributions.
(c) A Participant's Employer Nonqualified Matching Contribution and Employer
Discretionary Contribution Accounts will be fully vested and nonforfeitable if
(i) the Participant dies while actively employed by the Company or any Affiliate
or (ii) the Participant becomes disabled (as defined in Section 6.04) while
actively employed by the Company or any Affiliate.
6.08. DISTRIBUTION OF BENEFITS AND ORDER OF DISTRIBUTION
(a) Benefit distributions will begin not later than 60 days after the date the
benefit is payable.
(b) Benefits will be distributed proportionately from each Participant's or
Beneficiary's Nonqualified Employee Deferral Account, Employer Nonqualified
Matching Contribution Account, and Employer Discretionary Contribution Account.
Benefits will be paid from the Participant's or Beneficiary's Nonqualified Stock
Option Account only after the three Accounts named in the preceding sentence
have been exhausted.
6.09 EFFECT OF CHANGE IN CONTROL
(a) If, within 12 calendar months after a Change in Control, (i) a Participant
terminates employment with the Company and each Affiliate for "Good Reason" or
(ii) his or her employment with the Company and each Affiliate is terminated
without "Cause," the amount credited to his or her Employer Discretionary
Contribution Account and Employer Nonqualified Matching Contribution Account
will be 100 percent vested and will be distributed in a lump sum within 60 days
after the date the Participant's employment terminates.
(b) For purposes of this Section:
(i) "Cause" means a termination of the Participant's employment for any
of the following reasons (A) any unauthorized disclosure by the
Participant of the Company's or Affiliate's business practices or
accounts to a competitor which results in serious damage to the Company
or an Affiliate, (B) willful and wrongful misappropriation by the
Participant of funds, property or rights of the Company or an Affiliate
that results in serious damage to the Company or an Affiliate, (C)
willful and wrongful destruction of business records or other property
by the Participant, that results in serious damage to the
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Company or an Affiliate, (D) conviction of the Participant of a felony
involving moral turpitude or, as the result of a plea bargain,
conviction of the Participant of a misdemeanor, provided the
Participant was originally charged (prior to the plea bargain) with a
felony involving moral turpitude, (E) gross and willful misconduct by
the Participant which results in serious damage to the Company or an
Affiliate or (F) the Participant's material breach of, or inability to
perform his or her regularly assigned duties other than by reason of
disability (as defined in Section 6.04).
(iii) "Good Reason" means a termination of employment because the
Company or Affiliate (A) reduced the Participant's base salary for any
reason other than in connection with the termination of his or her
employment, (B) for any reason other than in connection with the
termination of the Participant's employment, the Company or Affiliate
materially reduces any fringe benefit provided to the Participant below
the level of such fringe benefit provided generally to other actively
employed similarly situated executives of the Company or Affiliate,
unless the Company or Affiliate agrees to fully compensate the
Participant for any such material reduction, (C) the Company or
Affiliate assigns the Participant duties inconsistent in any respect
with his or her position (including, without limitation, his status,
office and title), authority, duties or responsibilities allotted to
the Participant before the Change in Control or takes any other action
that results in a material diminution in such position, authority,
duties or responsibilities or (D) the Company or Affiliate otherwise
materially breaches or is unable to perform its normal obligations to
the Participant under this Plan or any other plan, program or contract.
6.10 SPECIAL PROVISIONS RELATED TO "GOLDEN PARACHUTE" AMOUNTS AND ACCELERATED
INCOME TAX LIABILITIES
(a) If any provision under this Plan, when combined with similar provisions
under any other plan, program or contract between the Company, an Affiliate or
any Participant, results in a "golden parachute" payment larger than the limit
prescribed in Code (delta)280G, the Committee and the Trustee will
proportionately reduce benefits payable under this Plan and any other plan,
program or contract to the limit prescribed by Code (delta)280G.
(b) If the Internal Revenue Service or any other taxing authority establishes
that a Participant is in constructive receipt of any Plan benefit, the Committee
will direct the Trustee to distribute (and the Trustee will immediately
distribute) to the Participant a lump sum amount equal to (i) the amount in
which the Participant is deemed to be in constructive receipt plus (ii) the
additional amount the Participant needs to pay the additional taxes, interest
and penalties arising from that determination.
ARTICLE VII
PLAN COMMITTEE
7.01. APPOINTMENT OF COMMITTEE
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The Board will appoint a committee of at least three persons to administer the
Plan. A Committee member may resign at any time by sending written notice to the
Board specifying the effective date of his or her termination (which must always
be prospective). Vacancies in the Committee will be filled by the Board as the
need arises. Also, in its sole discretion, the Board may remove any Committee
member at any time by giving written notice of removal to the affected Committee
member and specifying the effective date of that action (which must always be
prospective).
7.02. POWERS AND DUTIES
The Committee is fully empowered to exercise complete discretion to administer
the Plan and to construe and apply all of its provisions. The Committee may
delegate any of its powers and duties to any other person or organization. These
powers and duties include:
(a) Deciding which employees are Executives, which of them may participate in
the Plan and the value of their benefit;
(b) Resolving disputes that may arise with regard to the rights of Executives,
Participants and their legal representatives or Beneficiaries under the terms of
the Plan. Subject to Section 7.08, the Committee's decisions in these matters
will be final in each case;
(c) Obtaining from each Employer, Participant and Beneficiary information that
the Committee needs to determine any Participant's or Beneficiary's rights and
benefits under the Plan. The Committee may rely conclusively upon any
information furnished by an Employer, a Participant or Beneficiary;
(d) Compiling and maintaining all records it needs to administer the Plan;
(e) Upon request, furnishing the Company with reasonable and appropriate reports
of its administration of the Plan;
(f) Authorizing the distribution of all benefits that are payable under the
Plan;
(g) Engaging legal, administrative, actuarial, investment, accounting,
consulting and other professional services that the Committee believes are
necessary and appropriate;
(h) Adopting rules and regulations for the administration of the Plan that are
not inconsistent with the terms of the Plan; and
(i) Doing and performing any other acts provided for in the Plan.
7.03. ACTIONS BY THE COMMITTEE
The Committee may act at a meeting, or in writing without a meeting, by the vote
or assent of a majority of its members. The Committee will appoint one of its
members to act as a secretary to
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record all Committee action. The Committee also may authorize one or more of its
members to execute papers and perform other ministerial duties on behalf of the
Committee.
7.04. INTERESTED COMMITTEE MEMBERS
No member of the Committee may participate in any Committee action that directly
and uniquely affects that member's individual interest in the Plan; these
matters will be determined by a majority of the remainder of the Committee.
7.05. INDEMNIFICATION
(a) The Company will indemnify and hold harmless any Committee member or
employee who performs services to or on behalf of the Plan ("Indemnified Party")
against all liabilities and all reasonable expenses (including attorney fees and
amounts paid in settlement other than to the Employer) incurred or paid in
connection with any threatened or pending action, suit or proceeding brought by
any party in connection with the Plan. However, this indemnification will not
extend to any Indemnified Party whose conduct in connection with the Plan is
found to have been grossly negligent or wrongful. This determination will be
based on any final judgment rendered in connection with the action, suit or
proceeding complaining of the conduct or its effect or, if no final judgment is
rendered, by a majority of the Board or by independent counsel to whom the Board
has referred the matter.
(b) The obligations under this section may be satisfied, in the Company's
discretion, through the purchase of a policy or policies of insurance providing
equivalent protection.
7.06. CONCLUSIVENESS OF ACTION
Subject to Section 7.08, any action on matters within the discretion of the
Committee will be conclusive, final and binding upon all Participants and upon
all persons claiming any rights hereunder including Beneficiaries.
7.07. PAYMENT OF EXPENSES
(a) Committee members will not be separately compensated for their services as
Committee members. However, the Employer will reimburse Committee members for
all appropriate expenses they incur while carrying out their Plan duties.
(b) The compensation or fees of accountants, counsel and other specialists and
any other costs of administering the Plan will be paid by the Company or
allocated among Employers.
7.08. CLAIMS PROCEDURE
(a) FILING CLAIMS. Any Participant or Beneficiary who believes that he or she is
entitled to an unpaid Plan benefit may file a claim with the Committee.
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(b) NOTIFICATION TO CLAIMANT. If a claim is wholly or partially denied, the
Committee will send a written notice of denial to the claimant. This notice must
be written in a manner calculated to be understood by the claimant and must
include:
(i) The specific reason or reasons for which the claim was denied;
(ii) Specific reference to pertinent Plan provisions, rules, procedures
or protocols upon which the Committee relied to deny the claim;
(iii) A description of any additional material or information that the
claimant may file to perfect the claim and an explanation of why this
material or information is necessary; and
(iv) A description of the steps the claimant may take to appeal an
adverse determination.
The Committee will render its decision within 90 days of receiving a benefit
claim. However, if special circumstances (such as the need for additional
information) require additional time, this decision will be rendered as soon as
possible, but, not later than 180 days after receipt of the claim and only if
the Committee notifies the claimant, in writing, that it needs more time to
review a claim and why that additional time is needed. If the Committee does not
issue its decision within this period, the claim will be deemed to have been
denied.
(c) REVIEW PROCEDURE. If a claim has been wholly or partially denied, the
affected claimant, or his or her authorized representative may:
(i) Request that the Committee reconsider its initial denial by filing
a written appeal no more than 60 days after receiving written notice
that all or part of the initial claim was denied;
(ii) Review pertinent documents and other material upon which the
Committee relied when denying the initial claim; and
(iii) Submit a written description of the reasons for which the
claimant disagrees with the Committee's initial adverse decision.
An appeal of an initial denial of benefits and all supporting material must be
made in writing and directed to the Committee. The Committee is solely
responsible for reviewing all benefit claims and appeals and taking all
appropriate steps to implement its decision.
The Committee's decision on review will be sent to the claimant in writing and
will include specific reasons for the decision, written in a manner calculated
to be understood by the claimant, as well as specific references to the
pertinent Plan provisions, rules, procedures or protocols upon which the
Committee relied to deny the appeal.
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The Committee will render its decision within 60 days of receiving a benefit
appeal. However, if special circumstances (such as the need to hold a hearing on
any matter pertaining to the denied claim) require additional time, this
decision will be rendered as soon as possible, but not later than 120 days after
receipt of the claimant's written appeal and only if the Committee notifies the
claimant, in writing, that it needs more time to review an appeal and why that
additional time is needed. If the Committee does not issue its decision within
this period, the claim will be deemed to have been denied.
ARTICLE VIII
AMENDMENT TO THE PLAN
8.01. RIGHT TO AMEND
(a) Subject to paragraph (b), the Company may modify, alter or amend the Plan or
the Trust Agreement at any time. However, no amendment may affect any
Participant's or Beneficiary's right to receive the value of benefits accrued
under the Plan before the effective date of that amendment.
(b) Regardless of the rights reserved in Section 9.01(a), none of the Company,
any Affiliate or any successor to any of them may amend either the Plan or the
Trust Agreement after a Change of Control.
8.02. AMENDMENT PROCEDURE
The Board of Directors, an executive committee of the Board of Directors, or
other Board committee or any executive officer to which or to whom the Board of
Directors delegates discretionary authority over the Plan, may exercise the
Company's right to amend the Plan.
ARTICLE IX
TERMINATION OF THE PLAN
9.01. RIGHT TO TERMINATE
(a) Subject to paragraph (b), the Company may terminate the Plan or the Trust
Agreement in whole or in part at any time by written action of its. Each
Participant affected by a full or partial Plan termination or by a complete
discontinuance of contributions will be 100 percent vested in the value of all
of his or her Accounts. Also, the Committee may (a) distribute an affected
Participant's Accounts at the time the Plan terminates or partially terminates,
even if this date is earlier than the date benefits otherwise would be
distributed under Article VI or (b) hold those benefits until they are otherwise
payable under the terms of the Plan.
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(b) Regardless of the rights reserved in Section 9.01(a), none of the Company,
any Affiliate or any successor to any of them may terminate the Trust Agreement
after a Change of Control.
9.02. PLAN MERGER AND CONSOLIDATION
If the Plan is merged into or consolidated with any other plan, each affected
Participant will be entitled to a benefit immediately after the merger,
consolidation or transfer (determined as if the surviving plan had then
terminated) at least equal to the benefit he or she had accrued immediately
before the merger or consolidation (determined as if the Plan terminated
immediately before that merger or consolidation).
9.03. SUCCESSOR EMPLOYER
If any Employer dissolves into, reorganizes, merges into or consolidates with
another business entity, provision may be made by which the successor will
continue the Plan, in which case the successor will be substituted for the
Employer under the terms and provisions of this Plan. The substitution of the
successor for the Employer will constitute an assumption by the successor of all
Plan liabilities and the successor will have all of the powers, duties and
responsibilities of the Employer under the Plan.
ARTICLE X
FUNDING
This Plan constitutes an unfunded, unsecured promise by the Company to pay only
those benefits that are accrued by Participants under the terms of the Plan.
Neither the Company nor any Affiliate will segregate any assets into a fund
established exclusively to pay Plan benefits unless the Company, in its sole
discretion, establishes a trust for the purpose of holding assets from which all
or part of a Plan benefit may be paid. In this case, the Company will calculate
the amounts to be credited under each Participant's Accounts under Article III
and transfer that amount to the Trustee no later than the end of the second
calendar month beginning after the end of the fiscal year for which the
contribution is made. Also, neither the Company nor any Affiliate is required to
pay any interest on any contribution that is transferred to the trustee within
the period described in the preceding sentence. Neither the Company nor any
Affiliate is liable for the payment of Plan benefits that are actually paid from
a trust established for that purpose. However, the Company (and each Affiliate)
are obliged to pay any benefits not paid from any trust. Also, Participants,
Beneficiaries and other persons claiming a Plan benefit through them have only
the rights of general unsecured creditors and do not have any interest in or
right to any specific asset of any Employer. Nothing in this Plan constitutes a
guaranty by the Company, any Affiliate or any other entity or person that the
assets of the Employer or any Affiliate will be sufficient to pay Plan benefits.
ARTICLE XI
MISCELLANEOUS
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11.01. VOLUNTARY PLAN
The Plan is purely voluntary on the part of each Employer; neither the
establishment of the Plan nor any amendment to it nor the creation of any fund
or account nor the payment of any benefits may be construed as giving any person
(a) a legal or equitable right against any Employer or the Committee other than
those specifically granted under the Plan or conferred by affirmative action of
the Committee or any Employer in a manner that is consistent with the terms and
provisions of this Plan or (b) the right to be retained in the service of any
Employer. All Participants remain subject to discharge to the same extent as
though this Plan had not been established.
11.02. NON-ALIENATION OF BENEFITS
The right of a Participant, Beneficiary or any other person to receive Plan
benefits may not be assigned, transferred, pledged or encumbered except as
provided in the Participant's Beneficiary designation, by will or by applicable
laws of descent and distribution. Any attempt to assign, transfer, pledge or
encumber a Plan benefit will be null and void and of no legal effect.
11.03. INABILITY TO RECEIVE BENEFITS
Any Plan benefit payable to a Participant or Beneficiary who is declared
incompetent will be paid to the guardian, conservator or other person legally
charged with the care of his or her person or estate. Also, if the Committee, in
its sole discretion, concludes that a Participant or Beneficiary is unable to
manage his or her financial affairs, the Committee may, but is not required to,
direct the Company or Trustee to distribute Plan benefits to any one or more of
his or her Spouse, lineal ascendants or descendants or other close living
relatives of the Participant or Beneficiary who demonstrates to the satisfaction
of the Committee the propriety of those distributions. Any payment made under
this Section will completely discharge the Plan's liability with respect to that
payment. The Committee is not required to see to the application of any
distribution made to any person.
11.04. LOST PARTICIPANTS
Each Participant is obliged to keep the Committee apprised of his or her current
mailing address and that of his or her Beneficiary. The Committee's obligation
to search for any Participant or Beneficiary is limited to sending a registered
or certified letter to the Participant's or Beneficiary's last known address.
Any amounts credited to the Accounts of any Participant or Beneficiary who does
not file a claim for benefits with the Committee will be forfeited no later than
12 months after benefits are otherwise payable and, in the Company's discretion,
be used to reduce future Employer Nonqualified Matching or Employer
Discretionary Contributions. However, this forfeited benefit will be restored
and paid if the Committee subsequently approves a claim for benefits under the
procedures described in Section 7.08.
11.05. LIMITATION OF RIGHTS
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Nothing in the Plan, expressed or implied, is intended or may be construed as
conferring upon or giving to any person, firm or association (other than the
Company, an Affiliate, Participants, their Beneficiaries and their successors in
interest) any right, remedy or claim under or by reason of this Plan.
11.06. INVALID PROVISION
If any provision of this Plan is held to be illegal or invalid for any reason,
the Plan will be construed and enforced as if the offending provision had not
been included in the Plan. However, that determination will not affect the
legality or validity of the remaining parts of this Plan.
11.07. ONE PLAN
This Plan may be executed in any number of counterparts, each of which will be
deemed to be an original.
11.08. GOVERNING LAW
The Plan will be governed by and construed in accordance with the laws of the
United States and, to the extent applicable, the laws of Ohio.
IN WITNESS WHEREOF, the undersigned authorized officer of the Company has
executed this Plan to be effective as of December 1, 1999.
LIQUI-BOX CORPORATION
By: _______________________________
Print Name: ________________________
Title: ______________________________
Date: ____________
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