Exhibit 10.1
WAUSAU PAPER CORP. SUPPLEMENTAL RETIREMENT PLAN
AS AMENDED AND RESTATED EFFECTIVE JANUARY 1, 2005
WAUSAU PAPER CORP. SUPPLEMENTAL RETIREMENT PLAN
Page
Article 1 - PURPOSE AND ADMINISTRATION OF THE PLAN..........................2
Section 1.1 Purpose.................................................2
Section 1.2 Administration..........................................2
Section 1.3 Effective Date..........................................2
Article 2 - DEFINITIONS.....................................................3
Section 2.1 Definitions.............................................3
Section 2.2 Definitions Incorporated by Reference...................4
Article 3 - PARTICIPATION...................................................5
Section 3.1 Participation...........................................5
Section 3.2 Service.................................................5
Section 3.3 Termination of Participation and Reemployment...........5
Section 3.4 Chief Executive Officer Discretion to Extend
Participation...........................................5
Article 4 - BENEFITS........................................................6
Section 4.1 Normal Retirement Benefits of Corporate Officers........6
Section 4.2 Normal Benefits of Other Executive Officers.............6
Section 4.3 Minimum Retirement Benefits of Executive Officers.......7
Section 4.4 Early Retirement Benefits of Executive Officers.........7
Section 4.5 Surviving Spouse Benefits...............................7
Section 4.6 Commencement and Duration of Payments...................8
Section 4.7 Change of Control.......................................8
Section 4.8 Forfeiture of Benefits.................................12
Section 4.9 Inalienability of Benefits.............................13
Section 4.10 Facility of Payments..................................13
Section 4.11 Section 409A Compliance...............................13
Section 4.12 Claims Procedure......................................13
Article 5 - PROVISION FOR BENEFITS.........................................14
Section 5.1 Assets of the Company..................................14
Article 6 - AMENDMENT AND TERMINATION OF THE PLAN..........................15
Section 6.1 Amendment..............................................15
Section 6.2 Termination............................................15
Article 7 - MISCELLANEOUS..................................................16
Section 7.1 Nonguarantee of Employment.............................16
Section 7.2 Action by the Company..................................16
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Section 7.3 Agreement Binding on Successors........................16
Section 7.4 Construction...........................................16
Section 7.5 Titles.................................................16
Section 7.6 Governing Law..........................................16
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WAUSAU PAPER CORP. SUPPLEMENTAL RETIREMENT PLAN
Wausau-Mosinee Paper Corporation, a Wisconsin corporation, hereby amends
and restates the Wausau-Mosinee Supplemental Retirement Plan, effective
January 1, 2005, in accordance with the terms and conditions herein contained.
Effective May 12, 2005, the name of the Plan is changed from the Wausau-Mosinee
Supplemental Retirement Plan to the Wausau Paper Corp. Supplemental Retirement
Plan.
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ARTICLE 1 - PURPOSE AND ADMINISTRATION OF THE PLAN
Section 1.1 Purpose. The Company maintains the Plan for the purpose
of providing deferred compensation (within the meaning of Section 201(2) of the
Employee Retirement Income Security Act of 1974) for executive officers of the
Company.
Section 1.2 Administration. The Plan shall be administered by the
Company.
Section 1.3 Effective Date. The effective date of the Plan shall be
December 17, 1997.
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ARTICLE 2 - DEFINITIONS
Section 2.1 Definitions. The following terms shall have the meanings
set forth below:
(a) "Average Compensation" means (1) an aggregate amount
determined by the sum of (A) the Participant's salary for a calendar year and
earned bonus attributable to such calendar year and (B) any compensation
deferred under a plan qualified under Section 401(k) of the Code or under a
plan which satisfies the requirements of Section 125 of the Code during such
calendar year, for the 5 calendar years of the Executive Officer's most recent
10 years of Continuous Service as an Executive Officer in which the largest
aggregate amount of such compensation was earned and/or deferred for him for
service as an Executive Officer for all or any portion of each of such calendar
years, divided by (2) 12; provided, however, that if a Participant did not
perform services for 5 calendar years as an Executive Officer, such
determinations shall be based on such earned and/or deferred compensation for
each complete calendar year in which the Participant was an Executive Officer.
For purposes of determining a Participant's Average Compensation, compensation
from Wausau Paper Mills Company and Mosinee Paper Corporation earned prior to
the Effective Date for performance of services as an Executive Officer shall be
included.
(b) "Company" means Wausau Paper Corp., a Wisconsin corporation.
Prior to May 12, 2005, the Company was known as Wausau -Mosinee Paper
Corporation.
(c) "Controlled Group" means the Company and each other member of
the controlled group of corporations or other entities under common control to
which the Company belongs for purposes of determining whether a separation from
service has occurred pursuant to Code Section 409A and the regulations
promulgated thereunder.
(d) "Early Retirement Age" means the date on which an Executive
Officer has attained age 55 and completed 10 years of Continuous Service as an
Executive Officer.
(e) "Executive Officer" means any person employed by the Company
as its President or a Vice President but shall not include any officer of any
division or subsidiary of the Company. Notwithstanding the foregoing, any
person employed by the Company on the Effective Date who was a participant in
the Mosinee Supplemental Retirement Plan or the Wausau Paper Mills Company
Executive Officers' Deferred Compensation Retirement Plan on the date
immediately preceding the Effective Date shall be deemed to be an "Executive
Officer" for purposes of this Plan, regardless of whether such individual would
otherwise meet the definition of Executive Officer set forth in the preceding
sentence, and any service with the Company after the Effective Date by such
individual shall be considered service as an Executive Officer of the Company.
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(f) "Key Employee" on any particular date means a "key employee"
under Code Section 409A and the regulations promulgated thereunder.
(g) "Normal Retirement Age" means the date on which (1) an
Executive Officer has attained age 62 and completed 10 years of Continuous
Service as an Executive Officer or (2) an Executive Officer has attained age 62
and had terminated employment with the Company because of Disability.
(h) "Participant" means an Executive Officer of the Company who
has qualified to be a participant in the Plan in accordance with Section 3.1.
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(i) "Plan" means the Wausau Paper Corp. Supplemental Retirement
Plan as herein set forth. Prior to May 12, 2005, the Plan was known as the
Wausau-Mosinee Supplemental Retirement Plan.
(j) "Retirement Plan" shall mean the principal defined benefit
retirement plan as now in effect or hereafter amended, or any successor plan
which is qualified under Section 401(a) of the Code, and maintained for
salaried employees of the Company.
(k) "Termination of Employment" means the termination of a
Participant's employment with the Company and each member of the Controlled
Group.
Section 2.2 Definitions Incorporated by Reference. Each of the
following terms shall have the meaning set forth in the Retirement Plan and
the definition of each such term by the Retirement Plan is hereby incorporated
by this reference to the extent not inconsistent with the provisions of
this Plan:
(a) "Accrued Benefit."
(b) "Actuarial Equivalent."
(c) "Code."
(d) "Continuous Service."
(e) "Disability."
(f) "Retirement Benefit."
(g) "Straight-Life Annuity."
(h) "Surviving Spouse."
ARTICLE 3 - PARTICIPATION
Section 3.1 Participation. Each Executive Officer shall become a
Participant as of the later of the Effective Date or the first day of his
employment by the Company in the capacity of an Executive Officer.
Section 3.2 Service.
(a) All Continuous Service as an Executive Officer shall be
recognized for purposes of this Plan, whether or not such Continuous Service
was performed prior to the Effective Date hereof.
(b) Continuous Service by an individual for the Company in any
capacity other than as an Executive Officer shall not be recognized for any
purpose under this Plan.
(c) In the event a Participant or former Participant is
reemployed by the Company as an Executive Officer, all periods of Continuous
Service with the Company as an Executive Officer shall be aggregated for
purposes of this Plan.
(d) Notwithstanding anything herein to the contrary, if a
Participant was a participant in the Wausau Paper Mills Company Executive
Officers' Deferred Compensation Retirement Plan or the Mosinee Supplemental
Retirement Plan on December 16, 1997, all Continuous Service recognized under
such plans as of such date shall be recognized for purposes of this Plan.
Section 3.3 Termination of Participation and Reemployment. A
Participant shall cease participation in the Plan on the later of (a) the
earlier of (1) the date his Termination of Employment occurs or (2) the date
he is no longer employed as an Executive Officer by the Company or any member
of the Controlled Group, or (b) the date the final benefit payment to which the
Participant may be entitled pursuant to this Plan is made.
Section 3.4 Chief Executive Officer Discretion to Extend Participation.
Notwithstanding anything herein to the contrary, the Chief Executive Officer
of the Company may, with the consent of the Executive Compensation and Bonus
Committee of the Board of Directors of the Company, deem an employee of the
Company to be an "Executive Officer" of the Company for certain purposes under
the Plan, and may modify the requirements set forth in Article 4 for
eligibility and accrual of Normal and Early Retirement Benefits for any
Executive Officer (or employee who is deemed an Executive Officer pursuant to
this Section 3.4). Any exercise of discretion granted herein shall be
reflected in a written supplemental retirement plan agreement between the
Company and the Executive Officer (or employee who is deemed an Executive
Officer pursuant to this Section 3.4) which shall set forth the requirements
for eligibility and accrual of Normal and Early Retirement Benefits applicable
to such individual.
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ARTICLE 4 -
ARTICLE 4 - BENEFITS
Section 4.1 Normal Retirement Benefits of Corporate Officers. Subject
to the limitations elsewhere contained in this Plan, an Executive
Officer who incurs a Termination of Employment on or after attaining his Normal
Retirement Age and who was the President or a corporate Vice President of the
Company either (x) on the Effective Date or (y) as of the most recent date on
which he performed service as an Executive Officer shall be entitled to a
normal retirement benefit payable under this Plan in the form of a single life
annuity equal to the excess of:
(a) An amount equal to 50% of the Participant's Average
Compensation (as defined in Section 2.1(a)), over
(b) The monthly amount of the Participant's Accrued Benefit under
the Retirement Plan which would then be payable in the form of a Straight-Life
Annuity;
provided, however, that (1) the normal retirement benefit payable in the
form of a single life annuity under this Plan, as so calculated, of any
Participant who was a participant in the Mosinee Supplemental Retirement
Plan on the Effective Date shall be increased by an amount equal to such
Participant's Accrued Benefit under the Wausau Paper Corp. Retirement
Plan as of the Effective Date which would then be payable monthly in the
form of a single life annuity and (2) the normal retirement benefit
payable in the form of a single life annuity under this Plan, as so
calculated, of any Participant who was eligible for and elected to
receive the increased benefits provided under either Section 4.23 of the
Mosinee Retirement Plan ("Section 4.23") or Section 3.20 of the Wausau
Paper Corp. Retirement Plan (Section "3.20") shall be increased by an
amount equal to the excess of (A) the amount of the Participant's Accrued
Benefit under the Retirement Plan, determined in accordance with the
increased benefits provided for in Section 4.23 or Section 3.20, as
applicable, which would then be payable monthly in the form of a
Straight-Life Annuity over (B) the amount of the Participant's Accrued
Benefit under the Retirement Plan, determined without regard to the
increased benefits provided for in Section 4.23 or Section 3.20, as
applicable, which would then be payable monthly in the form of a
Straight-Life Annuity.
Section 4.2 Normal Benefits of Other Executive Officers. Subject to
the limitations elsewhere contained in this Plan, an Executive
Officer who incurs a Termination of Employment on or after attaining his Normal
Retirement Age and who was not the President or a corporate Vice President of
the Company either (x) on the Effective Date or (y) as of the most recent date
on which he performed service as an Executive Officer, shall be entitled to a
retirement benefit under this Plan payable in the form of a single life annuity
determined in accordance with the formula set forth in Section 4.1; provided,
however, that in making such determination, the term "40% of the Participant's
Average Compensation" shall be substituted for the term "50% of the
Participant's Average Compensation" in Section 4.1(a).
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Section 4.3 Minimum Retirement Benefits of Executive Officers.
Notwithstanding anything herein to the contrary, the normal retirement
benefit determined under Section 4.1 or 4.2, as applicable, shall not be less
than the Participant's accrued normal retirement benefit determined under (a)
Section 4.1 or 4.2, as applicable, under the Mosinee Supplemental Retirement
Plan or b) Section 4.1 or 4.2, as applicable, under the Wausau Paper Mills
Company Executive Officers' Deferred Compensation Retirement Plan, determined
under the terms of such plans on December 16, 1997.
Section 4.4 Early Retirement Benefits of Executive Officers. Subject
to the limitations elsewhere contained in this Plan, an Executive
Officer who incurs a Termination of Employment on or after attaining his Early
Retirement Age, but prior to attaining his Normal Retirement Age, shall be
entitled to an early retirement benefit in the form of a single life annuity
equal to the amount to which he would have been entitled to under Section 4.1
or Section 4.2, as applicable, taking into consideration the provisions of
Section 4.3, if applicable, if he had then attained his Normal Retirement Age;
provided, however, that such benefit shall be reduced by .4166% for each full
calendar month, from and including the month in which the Participant's 55th
birthday occurs to the month in which his 62nd birthday occurs, by which the
calendar month in which payment of the early retirement benefit provided for in
this Section 4.4 precedes the date on which such Participant would have
attained his Normal Retirement Age.
Section 4.5 Surviving Spouse Benefits. Subject to the limitations
elsewhere contained in this Plan, the Surviving Spouse of a Participant who
dies prior to commencement of any other benefit hereunder, including the
Surviving Spouse of a former Participant who terminated employment because of
Disability, shall be eligible for a Surviving Spouse benefit commencing as of
the last to occur of (1) the first day of the first month following the month
in which the Participant's death occurs or (2) the date on which the
Participant would have been eligible to receive payment of a benefit under
Section 4.4, or in the case of a Participant who incurred a Termination of
Employment because of Disability, commencing as of the date on which the former
Participant would have attained age 55, and such Surviving Spouse benefit shall
be equal to 50% of the monthly benefit which would have been payable to the
deceased Participant under this Plan if he had retired the day before his death
and payment of his benefit had commenced on such date assuming, in the case of
a former Participant who incurred a Termination of Employment because of a
Disability, that the benefit payable to such former Participant at Normal
Retirement Age under Section 4.1 or 4.2, as applicable, would have been
payable in reduced form at age 55 pursuant to Section 4.4, and, assuming
further, that in the case of a Participant or former Participant who died prior
to attaining age 55 or prior to the date on which the Participant or former
Participant had completed 10 years of Continuous Service, that a benefit would
have been payable to such deceased Participant or former Participant as of the
later of the dates described in (1) and (2), above; provided, however,
that the benefit payable to the Surviving Spouse of a Participant or former
Participant who died prior to the completion of 5 years of Continuous Service
shall be reduced by 20% for each year of Continuous Service less than 5 accrued
by such deceased Participant or former Participant.
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Section 4.6 Commencement and Duration of Payments. Monthly benefit
payments to the Participant (and, if applicable, his Surviving Spouse) under
Section 4.1, 4.2, 4.4 or 4.5, shall commence on the first date which is both
(i) the first day of a month, and (ii) if the Participant was a Key Employee on
the date of his Termination of Employment, not less than six months subsequent
to the date of his Termination of Employment or, if applicable, the date
specified in Section 4.5 as the date on which the Participant's Surviving
Spouse became eligible for a Surviving Spouse benefit, and shall continue,
subject to the provisions of Section 4.8, until the month in which the death
of the Participant (or, if applicable, his Surviving Spouse) occurs.
Section 4.7 Change of Control.
(a) In the event a Change of Control of the Company occurs, the
Company shall pay to each Participant a lump sum amount equal to the present
value of the Participant's accrued normal retirement benefit, as determined
under Section 4.1, as of the first day following such Change of Control of the
Company and following the Participant's Termination of Employment which is both
(i) the first day of a month, and (ii) if the Participant was a Key Employee on
the date of his Termination of Employment, not less than six months subsequent
to the date of the Participant's Termination of Employment, whether or not such
Change of Control of the Company occurred prior to the date of the
Participant's Termination of Employment. Upon payment of the lump sum amount
provided for in this Section 4.7(a), the Company shall have no further
obligation to pay any benefits under this Plan. Notwithstanding the foregoing,
if a Participant has less than five years of Continuous Service as of the date
of the Change of Control, the amount paid to such Participant under this
Section 4.7(a) shall equal (i) the amount described in the first sentence of
this Section 4.7(a) times (ii) a fraction, the numerator of which is the number
of years and fractions thereof of the Participant's Continuous Service as of
the date of the Change of Control and the denominator of which is five.
(b) In the event a Change of Control of the Company occurs after
the Participant's death and whether or not a benefit shall have then become
payable to the Participant's Surviving Spouse, the Company shall pay to such
Participant's Surviving Spouse, if then living, the present value of the unpaid
Surviving Spouse benefit. Upon payment of the lump sum amount provided for in
this Section 4.7(b), the Company shall have no further obligation to pay any
benefits under this Plan. Notwithstanding the foregoing, if a Participant had
less than five years of Continuous Service as of the date of his or her death
before the Change of Control, the amount paid to such Participant Surviving
Spouse under this Section 4.7(b) shall equal (i) the amount described in the
first sentence of this Section 4.7(a) times (ii) a fraction, the numerator of
which is the number of years and fractions thereof of the Participant's
Continuous Service as of the date of death and the denominator of which is
five.
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(c) For purposes of this Plan, a "Change of Control of the
Company" shall mean:
(1) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934 (the "Exchange Act") (a "Person") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
either (A) the then outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (B) the combined voting power of the
then outstanding voting securities of the Company entitled to vote generally in
the election of directors (the "Outstanding Company Voting Securities");
excluding, however, the following: (i) any acquisition directly from the
Company other than an acquisition by virtue of the exercise of a conversion
privilege unless the security being so converted was itself acquired directly
from the Company, (ii) any acquisition by the Company, (iii) any acquisition by
any employee benefit plan (or related trust) sponsored or maintained by the
Company or any entity controlled by the Company, (iv) any acquisition pursuant
to a transaction which complies with clauses (A), (B), and (C) of paragraph (3)
of this Section 4.7(c), (v) except as provided in paragraphs (4) and (5), any
acquisition by any of the Woodson Entities or any of the Smith Entities, or
(vi) any increase in the proportionate number of shares of Outstanding Company
Common Stock or Outstanding Company Voting Securities beneficially owned by a
Person to 20% or more of the shares of either of such classes of stock if such
increase was solely the result of the acquisition of Outstanding Company Common
Stock or Outstanding Company Voting Securities by the Company; provided,
however, that this clause (vi) shall not apply to any acquisition of
Outstanding Company Common Stock or Outstanding Company Voting Securities not
described in clauses (i), (ii), (iii), (iv), or (v) of this paragraph (1) by
the Person acquiring such shares which occurs after such Person had become the
beneficial owner of 20% or more of either the Outstanding Company Common Stock
or Outstanding Company Voting Securities by reason of share purchases by the
Company; or
(2) A change in the composition of the Board of Directors
("Board") such that the individuals who, as of the Effective Date, constitute
the Board (such Board shall be hereinafter referred to as the "Incumbent
Board") cease for any reason to constitute at least a majority of the Board;
provided, however, for purposes of the Plan, that any individual who becomes a
member of the Board subsequent to the Effective Date whose election, or
nomination for election by the Company's shareholders, was approved by a vote
of at least a majority of those individuals who are members of the Board and
who were also members of the Incumbent Board (or deemed to be such pursuant to
this proviso) shall be deemed to be and shall be considered as though such
individual were a member of the Incumbent Board, but provided, further, that
any such individual whose initial assumption of office occurs as a result of
either an actual or threatened election
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contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act) or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board shall not be so
deemed or considered as a member of the Incumbent Board; or
(3) Consummation of a reorganization, merger or
consolidation, or sale or other disposition of all or substantially all of the
assets of the Company or the acquisition of the assets or securities of any
other entity (a "Corporate Transaction"); excluding, however, such a Corporate
Transaction pursuant to which (A) all or substantially all of the individuals
and entities who are the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities immediately
prior to such Corporate Transaction will beneficially own, directly or
indirectly, more than 60% of, respectively, the outstanding shares of common
stock and the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case may be, of
the corporation resulting from such Corporate Transaction (including, without
limitation, a corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets either directly or
through one or more subsidiaries) (the "Resulting Corporation") in
substantially the same proportions as their ownership, immediately prior to
such Corporate Transaction, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (B) no Person (other
than the Company, any employee benefit plan (or related trust) of the Company,
any Woodson Entity, any Smith Entity, or such Resulting Corporation) will
beneficially own, directly or indirectly, 20% or more of, respectively, the
outstanding shares of common stock of the Resulting Corporation or the combined
voting power of the then outstanding voting securities of such Resulting
Corporation entitled to vote generally in the election of directors except to
the extent that such ownership existed with respect to the Company prior to the
Corporate Transaction, and (C) individuals who were members of the Incumbent
Board will constitute at least a majority of the members of the board of
directors of the Resulting Corporation; or
(4) The Woodson Entities acquire beneficial ownership of
more than 35% of the Outstanding Company Common Stock or Outstanding Company
Voting Securities or of the outstanding shares of common stock or the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the Resulting
Corporation; or
(5) The Smith Entities acquire beneficial ownership of more
than 35% of the Outstanding Company Common Stock or Outstanding Company Voting
Securities or of the outstanding shares of common stock or the combined voting
power of the then outstanding voting securities entitled to vote generally in
the election of directors, as the case may be, of the Resulting Corporation; or
(6) The approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
For purposes of this Section 4.7(b), the term "Woodson Entities"
shall mean Aytchmonde P. Woodson, Leigh Yawkey Woodson and Alice
Richardson Yawkey, members of their respective families and their
respective descendants (the "Woodson Family"), heirs or legatees of
any of the Woodson Family members, transferees by will, laws of
descent or distribution or by operation of law of any of the
foregoing (including of any such transferees) (including any
executor or administrator of any estate of any of the foregoing),
any trust established by any of Aytchmonde P. Woodson, Leigh Yawkey
Woodson, or Alice Richardson Yawkey, whether pursuant to last will
or otherwise, any partnership, trust or other entity established
primarily for the benefit of, or any other Person the beneficial
owners of which consist primarily of, any of the foregoing or any
Affiliates or Associates of any of the foregoing or any charitable
trust or foundation to which any of the foregoing transfers or may
transfer securities of the Company (including any beneficiary or
trustee, partner, manager or director of any of the foregoing or
any other Person serving any such entity in a similar capacity).
For purposes of this Section 4.7(b), the term "Smith Entities"
shall mean David B. Smith and Katherine S. Smith, members of their
respective families and their respective descendants (the "Smith
Family"), heirs or legatees of any of the Smith Family members,
transferees by will, laws of descent or distribution or by
operation of law of any of the foregoing (including of any such
transferees) (including any executor or administrator of any estate
of any of the foregoing), any trust established by either of David
B. Smith or Katherine S. Smith, whether pursuant to last will or
otherwise, any partnership, trust or other entity established
primarily for the benefit of, or any other Person the beneficial
owners of which consist primarily of, any of the foregoing or any
Affiliates or Associates of any of the foregoing or any charitable
trust or foundation to which any of the foregoing transfers or may
transfer securities of the Company (including any beneficiary or
trustee, partner, manager or director of any of the foregoing or
any other Person serving any such entity in a similar capacity).
For purposes of this Section 4.7(b), the terms "Affiliate" and
"Associate" shall have the meanings ascribed to such terms in Rule
12b-2 of the General Rules and Regulations under the Exchange Act
as in effect on the date of this Plan.
(d) For purposes of this Plan, the present value of a
Participant's retirement benefit or the Surviving Spouse benefit shall be
determined by reference to the 1983 Individual Annuity Mortality Table with an
assumed interest rate equal to the "immediate annuity rate" as then in effect
as determined by the Pension Benefit Guaranty
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Corporation and promulgated in Appendix B to 29 C.F.R. (section) 2619.65 or any
successor regulation adopted for the same or substantially similar purpose.
Section 4.8 Forfeiture of Benefits. Despite any other provision of
this Plan, a Participant's or Surviving Spouse's, as applicable, eligibility
for benefit payments under the Plan is expressly subject to the following terms
and conditions:
(a) The Company is and shall be entitled to the sole benefit and
exclusive ownership of any inventions or improvements in plant, machinery and
processes, and all patents for the same, and all customer or price lists, trade
secrets and other things of similar type or nature used in the business of the
Company that may be made or discovered by a Participant while he is employed by
the Company, or, after his Termination of Employment if arising out of his
activities, knowledge or experience gained while in the employment of the
Company. In the event that a Participant, during or after his Termination of
Employment, discloses all or any portion of the list of the Company's customers
or the Company's pricing structure or all or any portion of the Company's
manufacturing process or any other trade secrets or confidential information to
any person, firm, corporation, associations or other entity for any reason or
purpose whatsoever, no payment of any benefit otherwise due the Participant or
his Surviving Spouse pursuant to this Plan shall be made by the Company.
(b) In the event a Participant, without the prior written consent
of the Company and within a period of two years beginning on the first day
following the Participant's Termination of Employment, directly or indirectly
owns, manages, operates, joins, controls, is employed by or participates in the
ownership, management, operation or control of, or is connected in any manner
with, any business of a type and character which, in the opinion of the
Company, results in the Participant then being engaged in the field of
activities in which he was engaged by the Company at the time of his
Termination of Employment (and within one year prior to said termination) and
such business is, in the opinion of the Company, in direct or indirect
competition in any market area served by the Company with any business then
conducted by the Company in such market area, no payment of any benefit
otherwise due the Participant or his Surviving Spouse pursuant to this Plan
shall be made by the Company if the Participant fails to cease such activity
within fifteen days of the mailing to him by the Company of the Company's
opinion that he is in violation of the restrictions contained in this
Section 4.8(b).
(c) The Company shall have sole discretion to stop payment of any
benefit or refuse to make payments otherwise due the Participant or his
Surviving Spouse pursuant to this Plan if the Participant's Termination of
Employment or his appointment to a position with the Company as other than an
Executive Officer was by reason of or because of the Participant's fraud,
embezzlement, misappropriation or similar offense against the Company or any
other state or federal felony offense.
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(d) Subject to the provisions of Section 6.2, no benefit shall be
payable under this Plan to any Participant or Surviving Spouse who, for any
reason, is not eligible for and does not receive a benefit under the provisions
of the Retirement Plan.
Section 4.9 Inalienability of Benefits. A Participant's right to a
benefit under the Plan shall not be subject to voluntary or involuntary sale,
pledge, hypothecation, transfer or assignment by the Participant or by his
personal representatives or heirs, or any other person or persons or
organization or organizations succeeding to any of the Participant's rights
and benefits hereunder.
Section 4.10 Facility of Payments. Any benefit payable hereunder to
any person who is legally incapacitated may be paid to a court appointed legal
representative of such person.
Section 4.11 Section 409A Compliance. Notwithstanding any other
provision of the Plan or any election made or permitted to be made hereunder,
no election as to the timing or form, or both, of the distribution of a
Participant's accrued benefit, and no other distribution otherwise provided for
by this Plan, shall be effective or made, as the case may be, if such timing or
form of distribution would cause the Plan to fail to meet the requirements of
Code Section 409A or cause a Participant to be subject to the interest and
additional tax imposed pursuant to Code Section 409A(a)(1)(B), and any such
election or such other provision shall be modified in the operation of the Plan
so that the timing or form of distribution, or both, as the case may be,
corresponds as closely as possible to such election or other provision, but
will then comply with the requirements of Code Section 409A so as to preclude
the application of Code Section 409A(a)(1)(B).
Section 4.12 Claims Procedure. Each Participant or Surviving Spouse
whose claim for benefits is denied, in whole or in part, shall be provided with
a notice, written in a manner calculated to be understood by such person,
setting forth the specific reasons for such denial and outlining the review
procedure of the Company. Each such Participant or Surviving Spouse shall be
given a reasonable opportunity for a full and fair review by the Company of the
decision by which the claim was denied.
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ARTICLE 5 - PROVISION FOR BENEFITS
Section 5.1 Assets of the Company. Benefits which become payable
under the provisions of the Plan shall be paid directly by the Company out of
its assets. No assets of the Company shall be set aside or segregated for the
provision of such benefit payments. No Participant or Surviving Spouse, nor
any other potential or actual recipient of benefits under the provisions of
this Plan shall acquire any right, title or interest in the assets of the
Company by reason of the Plan and, to the extent that the Participant,
Surviving Spouse or such other recipient shall acquire a right to receive
payments from the Company pursuant to the Plan, such right shall be no greater
than the right of any unsecured general creditor of the Company.
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ARTICLE 6 - AMENDMENT AND TERMINATION OF THE PLAN
Section 6.1 Amendment. The Company reserves the right to amend the
Plan from time to time and at any time, effective as of any specified current,
prior or future date; provided, however, that no such amendment shall modify or
reduce a Participant's accrued benefit under this Plan as of the date such
amendment is adopted.
Section 6.2 Termination. The Company reserves the right to terminate
the Plan at any time and for any reason; provided, however, that upon
termination, each Participant's accrued benefit shall be fully vested subject
only to the provisions of Section 4.8. A Participant's accrued benefit shall
mean the benefit which would be paid or payable pursuant to this Plan following
the Participant's Termination of Employment if the Retirement Plan had
terminated as of the same date on which the termination of the Plan occurs
(and provided for payment of Accrued Benefits under the Retirement Plan upon
the Participant's Termination of Employment) multiplied by a fraction, the
numerator of which is a Participant's years of Continuous Service recognized
under Section 3.2 and the denominator of which is ten. Distributions upon
termination of the Plan will be made at such time as permitted under Code
Section 409A and the regulations promulgated thereunder.
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ARTICLE 7 - MISCELLANEOUS
Section 7.1 Nonguarantee of Employment. Nothing contained in this
Plan shall be construed as a contract of employment between the Company and any
employee, as a right of any employee to be continued in the employment of the
Company as an Executive Officer or in any other capacity, or as a limitation of
the right of the Company to discharge any of its employees, with or without
cause.
Section 7.2 Action by the Company. Any action by the Company under
this Plan may be by resolution of its Board of Directors, or by any officer or
officers duly authorized by resolution of said Board to act with respect to
the Plan.
Section 7.3 Agreement Binding on Successors. This agreement shall be
binding upon all persons entitled to benefits hereunder, and upon their
respective heirs and legal representatives and upon the Company, its successors
and assigns.
Section 7.4 Construction. Except when otherwise indicated by the
context, any masculine terminology herein shall also include feminine, and the
definition of any term herein in singular shall also include the plural.
Section 7.5 Titles. Article and section titles are included for
reference purposes only and in the event of a conflict between a title and its
respective text the text shall control.
Section 7.6 Governing Law. This Plan shall, to the extent not
superseded by the Employee Retirement Income Security Act of 1974, be governed
by the laws of the State of Wisconsin.
In Witness Whereof, this instrument has been executed as of the 1st day
of January, 2005 by the officer set forth below, who has been duly elected and
authorized to act on behalf of the Company.
WAUSAU PAPER CORP.
By: STUART R. CARLSON
Stuart R. Carlson
Executive Vice President,
Administration
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