EXHIBIT 10.12
THE WISER OIL COMPANY SAVINGS RESTORATION PLAN
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THIS PLAN, made and executed at Dallas, Texas, by THE WISER OIL COMPANY, a
Delaware corporation, is being established primarily for the purpose of
providing deferred compensation for a select group of management or highly
compensated employees of The Wiser Oil Company and its participating affiliates.
ARTICLE I.
DEFINITIONS
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Section 1.1 Definitions. Unless the context clearly indicates otherwise,
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when used in this Plan:
(a) "Account" means a Participant's Deferral Account or Matching Account,
as the context requires.
(b) "Affiliated Company" means any corporation or organization, other than
an Employer, which is a member of a controlled group of corporations (within the
meaning of section 414(b) of the Internal Revenue Code) or of an affiliated
service group (within the meaning of section 414(m) of the Internal Revenue
Code) with respect to which an Employer is also a member, and any other
incorporated or unincorporated trade or business which along with an Employer is
under common control (within the meaning of section 414(c) of the Internal
Revenue Code).
(c) "Committee" means the committee designated pursuant to Plan Section 2.1
to administer this Plan.
(d) "Company" means The Wiser Oil Company.
(e) "Covered Compensation" means Compensation within the meaning of the
Savings Plan, but determined (i) prior to any reduction thereof for deferrals
made pursuant to this Plan, and (ii) without regard to the maximum compensation
limitation imposed under the Savings Plan in order to comply with the
requirement of section 401(a)(17) of the Internal Revenue Code.
(f) "Deferral Account" means the account established and maintained on the
books of an Employer pursuant to Plan Section 3.2 to record a Participant's
interest under this Plan attributable to amounts credited to such Participant
pursuant to Plan Section 3.2(a).
(g) "Election Period" means the period prior to the beginning of a Plan
Year (or, with respect to the Plan's first Plan Year, the period prior to March
11, 1998) which is specified by the Committee for the making of deferral
elections for such year pursuant to Plan Section 3.1.
(h) "Eligible Employee" means the President of the Company and any other
employee of an Employer (i) who has satisfied the service requirement necessary
to be eligible to make contributions to the Savings Plan, (ii) whose annual base
salary is at least $150,000, and (iii) who has been designated by the President
as an Eligible Employee for the purposes of this Plan.
(i) "Employer" includes the Company and any other incorporated or
unincorporated trade or business which may adopt both this Plan and the Savings
Plan.
(j) "Matching Account" means the account established and maintained on the
books of an Employer pursuant to Plan Section 3.2 to record a Participant's
interest under this Plan attributable to amounts credited to such Participant
pursuant to Plan Section 3.2(b).
(k) "Participant" means an Eligible Employee or former Eligible Employee
for whom an Account is being maintained under this Plan.
(l) "Plan" means The Wiser Oil Company Savings Restoration Plan as in
effect from time to time.
(m) "Plan Year" means the twelve-month period commencing January 1 (or,
with respect to the Plan's first Plan Year, the period commencing with the
effective date of this Plan) and ending the following December 31.
(n) "Savings Plan" means The Wiser Oil Company Savings Plan as in effect
from time to time.
ARTICLE II.
PLAN ADMINISTRATION
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Section 2.1 Committee. This Plan shall be administered by the Committee
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appointed to administer the Savings Plan on behalf of the Employers. The
Committee shall have discretionary and final authority to interpret and
implement the provisions of the Plan, including without limitation, authority to
determine eligibility for benefits under the Plan. The Committee shall act by a
majority of its members at the time in office and such action may be taken
either by a vote at a meeting or in writing without a meeting. The Committee
may adopt such rules and procedures for the administration of the Plan as are
consistent with the terms hereof and shall keep adequate records of its
proceedings and acts. Every interpretation, choice, determination or other
exercise by the Committee of any power or discretion given either expressly or
by implication to it shall be conclusive and binding upon all parties having or
claiming to have an interest under the Plan or otherwise directly or indirectly
affected by such action, without restriction, however, on the right of the
Committee to reconsider and redetermine such action. The Employers shall
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indemnify and hold harmless each member of the Committee and each director,
officer and employee of an Employer against any claim, cost, expense (including
attorneys' fees), judgment or liability (including any sum paid in settlement of
a claim with the approval of the Company) arising out of any act or omission to
act as a member of the Committee or any other act or omission to act relating to
this Plan, except in the case of such person's fraud or willful misconduct.
ARTICLE III.
DEFERRED COMPENSATION PROVISIONS
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Section 3.1 Deferral Election. During the Election Period for each Plan
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Year, an Eligible Employee may elect to have the payment of the following
amounts of his or her Covered Compensation for such year deferred for payment in
the manner and at the time specified in Plan Section 3.4:
(a) The amount of such Participant's elected pre-tax contribution to
the Savings Plan for a pay period which does not exceed 6% of his or her
Compensation (as defined in the Savings Plan) for such pay period and which
cannot be made to the Savings Plan because of (i) the maximum contribution
limitation imposed under the Savings Plan in order to comply with the
requirement of section 402(g) of the Internal Revenue Code, or (ii) a
contribution limitation imposed under the Savings Plan or by the Savings
Plan Committee in order to comply with the nondiscriminatory contribution
requirement of section 401(k) of the Internal Revenue Code.
(b) An amount up to 6% of the portion of such Participant's Covered
Compensation for such year which exceeds the maximum compensation
limitation imposed under the Savings Plan for such year in order to comply
with the requirement of section 401(a)(17) of the Internal Revenue Code.
The amount of Covered Compensation for a Plan Year a Participant elects to
defer pursuant to this Plan Section 3.1(b) shall be deferred in equal pay
period installments commencing when such Participant's Covered Compensation
for such year begins to exceed said limitation.
(c) An amount up to 9% of such Participant's Covered Compensation for
such year. The amount of Covered Compensation for a Plan Year a Participant
elects to defer pursuant to this Plan Section 3.1(c) shall be deferred in
equal pay period installments during such year.
All elections made pursuant to this Plan Section 3.1 shall be made in
writing on a form prescribed by and filed with the Committee and shall be
irrevocable.
Section 3.2 Participant Accounts. An Employer shall establish and
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maintain on its books a Deferral Account and a Matching Account for each
Eligible Employee employed by such
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Employer. Each such Account shall be designated by the name of the Participant
for whom established and shall be credited in accordance with the following
provisions:
(a) The amount of any Covered Compensation from an Employer for a Plan
Year that is deferred for a Participant pursuant to Plan Section 3.1 shall
be credited by such Employer to such Participant's Deferral Account as of
the last day of the month in which such amount would otherwise have been
paid to such Participant by such Employer.
(b) The amount of any Employer matching contribution that would have
been made by an Employer to the Savings Plan for a Participant for a pay
period if (i) the Covered Compensation deferred for such Participant for
such period pursuant to Plan Section 3.1 had been contributed to the
Savings Plan as a pre-tax contribution for such Participant for such
period, and (ii) the provisions of the Savings Plan were administered
without regard to the limitations referred to in Plan Section 3.1, shall be
credited to such Participant's Matching Account as of the last day of the
month in which such Employer matching contribution would have been made to
the Savings Plan for such Participant under such circumstances.
Section 3.3 Account Adjustments. Subject to such conditions, limitations
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and procedures as the Committee may prescribe from time to time for the
accounting purposes of this Plan, on the last day of each month (and at such
other times as the Committee may prescribe) the amount credited to each Account
maintained by an Employer for a Participant shall be adjusted to reflect the
investment results that would have resulted if the amount credited to such
Account as of the first day of such month had been invested throughout such
month in the Lifetime Fund investment option under the Savings Plan that
corresponds to such Participant's age on the last day of such month. The
Account adjustments made pursuant to this Plan Section 3.3 relate to fictional
investments made on a hypothetical basis solely for the accounting purposes of
this Plan, and shall not require any Employer to make any actual investment or
otherwise set aside or earmark any asset for the purposes of this Plan.
Section 3.4 Account Payments. If a Participant's employment with an
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Employer or Affiliated Company terminates for any reason other than death or
transfer to employment with another Employer or Affiliated Company, the amount
then credited to each Account being maintained by an Employer for such
Participant shall be paid by such Employer to such Participant (or, in the event
of his or her subsequent death, to the beneficiary or beneficiaries designated
by such Participant pursuant to Plan Section 3.5) in a single lump sum in cash,
without interest, and charged against such Account no later than sixty days
after such termination of employment; provided, however, that if such
Participant is not fully vested in the amount credited to his or her employer
matching contribution account under the Savings Plan at the time of such
termination of employment, then the amount credited to such Participant's
Matching Account shall be reduced at the time of such termination of employment
to an amount equal to the amount then credited to said Matching Account
multiplied by the vested percentage applicable to such Participant's employer
matching contribution account under the Savings Plan as of the date of such
termination
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of employment. If a Participant's employment with an Employer
or Affiliated Company terminates by reason of death, the amount then credited to
each Account being maintained by an Employer for such Participant shall be paid
by such Employer to the beneficiary or beneficiaries designated by such
Participant pursuant to Plan Section 3.5 in a single lump sum in cash, without
interest, and charged against such Account no later than sixty days following
the date of such Participant's death.
Section 3.5 Designation of Beneficiaries. Any amount payable under this
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Plan after the death of a Participant shall be paid when otherwise due hereunder
to the beneficiary or beneficiaries designated by such Participant. Such
designation of beneficiary or beneficiaries shall be made in writing on a form
prescribed by and filed with the Committee and shall remain in effect until
changed by such Participant by the filing of a new beneficiary designation form
with the Committee. If a Participant fails to so designate a beneficiary, or in
the event all of the designated beneficiaries are individuals who either
predecease the Participant or survive the Participant but die prior to receiving
the full amount payable under this Plan, any remaining amount payable under this
Plan shall be paid to such Participant's estate when otherwise due hereunder.
ARTICLE IV.
AMENDMENT AND TERMINATION
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Section 4.1 Amendment and Termination. The Board of Directors of the
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Company shall have the right and power at any time and from time to time to
amend this Plan, in whole or in part, on behalf of all Employers, and at any
time to terminate this Plan or any Employer's participation hereunder. Any
amendment to or termination of this Plan shall be made by or pursuant to a
resolution duly adopted by the Board of Directors of the Company, and shall be
evidenced by such resolution or by a written instrument executed by such person
as the Board of Directors of the Company shall authorize for such purpose. Any
provision of this Plan to the contrary notwithstanding, no amendment to or
termination of this Plan shall reduce the amounts actually credited to a
Participant's Accounts as of the date of such amendment or termination, or
further defer the dates for the payment of such amounts, without the consent of
the affected Participant.
ARTICLE V.
MISCELLANEOUS PROVISIONS
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Section 5.1 Nature of Plan and Rights. This Plan is unfunded and
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maintained by the Employers primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees of
the Employers. The Accounts established and maintained under this Plan by an
Employer are for its accounting purposes only and shall not be
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deemed or construed to create a trust fund or security interest of any kind for
or to grant a property interest of any kind to any Participant, designated
beneficiary or estate. The amounts credited by an Employer to Accounts
maintained under this Plan are and for all purposes shall continue to be
unsecured and unfunded general liabilities of such Employer, and to the extent
that a Participant, designated beneficiary or estate acquires a right to receive
a payment from such Employer pursuant to this Plan, such right shall be no
greater than the right of any unsecured general creditor of such Employer.
Section 5.2 Spendthrift Provision. No Account balance or other right or
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interest under this Plan of a Participant, designated beneficiary or estate may
be assigned, transferred or alienated, in whole or in part, either directly or
by operation of law, and no such balance, right or interest shall be liable for
or subject to any debt, obligation or liability of such Participant, designated
beneficiary or estate.
Section 5.3 Employment Noncontractual. The establishment of this Plan
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shall not enlarge or otherwise affect the terms of any Participant's employment
with an Employer, and such Employer may terminate the employment of such
Participant as freely and with the same effect as if this Plan had not been
established.
Section 5.4 Adoption by Other Employers. This Plan may be adopted by any
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Employer participating in the Savings Plan, such adoption to be effective as of
the date specified by such Employer at the time of adoption.
Section 5.5 Claims Procedure. If any person (hereinafter called the
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"Claimant") feels that he or she is being denied a benefit to which he or she is
entitled under this Plan, such Claimant may file a written claim for said
benefit with the Committee. Within sixty days following the receipt of such
claim the Committee shall determine and notify the Claimant as to whether he or
she is entitled to such benefit. Such notification shall be in writing and, if
denying the claim for benefit, shall set forth the specific reason or reasons
for the denial, make specific reference to the pertinent provisions of this
Plan, and advise the Claimant that he or she may, within sixty days following
the receipt of such notice, in writing request to appear before the Committee or
its designated representative for a hearing to review such denial. Any such
hearing shall be scheduled at the mutual convenience of the Committee or its
designated representative and the Claimant, and at any such hearing the Claimant
and/or his or her duly authorized representative may examine any relevant
documents and present evidence and arguments to support the granting of the
benefit being claimed. The final decision of the Committee with respect to the
claim being reviewed shall be made within sixty days following the hearing
thereon, and Committee shall in writing notify the Claimant of said final
decision, again specifying the reasons therefor and the pertinent provisions of
this Plan upon which said final decision is based. The final decision of the
Committee shall be conclusive and binding upon all parties having or claiming to
have an interest in the matter being reviewed.
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Section 5.6 Applicable Law. This Plan shall be governed and construed in
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accordance with the internal laws (and not the principles relating to conflicts
of laws) of the State of Texas, except where superseded by federal law.
IN WITNESS WHEREOF, this Plan has been executed on this 24th day of
February, 1998, to be effective as of March 1, 1998.
THE WISER OIL COMPANY
By
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Andrew J. Shoup, Jr.
President and Chief Executive Officer
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