Exhibit 10.13
THE WISER OIL COMPANY
RETIREMENT RESTORATION PLAN
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THIS RETIREMENT RESTORATION PLAN, made and executed at Dallas, Texas, by
THE WISER OIL COMPANY, a Delaware corporation (the "Company"),
WITNESSETH THAT:
WHEREAS, the Company has heretofore established for the benefit of its
employees a qualified defined benefit pension plan known as the Retirement
Income Plan for Employees of The Wiser Oil Company (the "Retirement Plan"); and
WHEREAS, the Company now desires to establish an unfunded nonqualified
retirement plan to supplement the benefits payable under the Retirement Plan to
certain key employees of the Company whose benefits otherwise payable under the
Retirement Plan have been reduced because of the maximum compensation and
maximum benefit limitations imposed under the Retirement Plan in order to comply
with the requirements of the Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, in consideration of the premises the Company hereby
establishes a supplemental retirement plan to provide benefits and be
administered in accordance with the following:
Section 1. Definitions. Unless the context clearly indicates otherwise,
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when used in this Plan:
(a) "Change in Control" means any of the following events: (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended [the "Exchange Act"]), other
than a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or a corporation owned, directly or indirectly,
by the stockholders of the Company in substantially the same proportions as
their ownership of stock of the Company, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 20% or more of the
combined voting power of the Company's then outstanding securities; or (ii)
during any period of two (2) consecutive years (not including any period
prior to the execution of this Plan), individuals who at the beginning of
such period constitute the Board of Directors of the Company and any new
director (other than a director designated by a person who has entered into
an agreement with the Company to effect a transaction described in clauses
(i) or (iii) of this paragraph) whose election by the Board of Directors of
the Company or nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds (2/3) of the directors then still
in office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease
for any reason to constitute a majority of the Board of Directors of the
Company; or (iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least 80% of the combined voting
power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all
or substantially all the Company's assets.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Committee" means the committee designated pursuant to Plan
Section 3 to administer this Plan.
(d) "Company" means The Wiser Oil Company, a Delaware corporation.
(e) "Employer" includes the Company and any other incorporated or
unincorporated organization which may adopt both the Retirement Plan and
this Plan.
(f) "Participant" means the Chief Executive Officer of the Company and
any other employee of an Employer (i) who is a participant in the
Retirement Plan, (ii) whose annual base salary from an Employer is at least
$150,000, and (iii) who has been designated by the Chief Executive Officer
of the Company as a Participant for the purposes of this Plan.
(g) "Plan" means The Wiser Oil Company Retirement Restoration Plan as
in effect from time to time.
(h) "Retirement Plan" means the Retirement Income Plan for Employees
of The Wiser Oil Company as in effect from time to time.
Section 2. Nature of Plan. This Plan is an unfunded plan maintained
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primarily for the purpose of providing deferred compensation for a select group
of management or highly compensated employees and does not qualify under the
provisions of Section 401 of the Code.
Section 3. Plan Administration. This Plan shall be administered by the
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Committee appointed to administer the Retirement Plan. The Committee shall have
discretionary and final authority to interpret and implement the provisions of
the Plan, including without limitation, authority to determine
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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 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.
Section 4. Amount of Benefits. If a Participant or beneficiary of a
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Participant receives or commences receiving benefits under the Retirement Plan,
then such Participant or beneficiary shall be entitled to receive benefits under
this Plan which are actuarially equivalent to the excess, if any, of:
(a) the value of the benefits which would have been payable to such
Participant or beneficiary under the Retirement Plan if the provisions of
the Retirement Plan were administered without regard to (i) the maximum
amount of compensation limitation imposed under the Retirement Plan in
order to comply with Section 401(a)(17) of the Code, and (ii) the maximum
amount of retirement income limitation imposed under the Retirement Plan in
order to comply with Section 415 of the Code, over
(b) the value of the benefits which are actually payable to such
Participant or beneficiary under the provisions of the Retirement Plan.
For purposes of this Plan, the value of benefits and the amounts payable under
alternate forms of benefits shall be determined using the actuarial assumptions
being used under the Retirement Plan for such purposes.
Section 5. Payment of Benefits. The benefits payable to a Participant or
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beneficiary of a Participant under this Plan shall be paid or commence being
paid, as the case may be, concurrently with the payment or the commencement of
the payment of benefits to such Participant or beneficiary under the Retirement
Plan, and
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shall be paid to such Participant or beneficiary in such form available under
the Retirement Plan as shall be selected by the Committee in its absolute
discretion; provided, however, that any provision of this Plan to the contrary
notwithstanding, if a Participant's employment with an Employer terminates
within two (2) years following a Change of Control for any reason other than
such Participant's (i) death, (ii) retirement under the normal, late, early or
disability retirement provisions of the Retirement Plan, or (iii) transfer to
employment with another Employer, then in lieu of and in full satisfaction of
all future benefits otherwise payable under this Plan to or with respect to such
Participant or a beneficiary of such Participant, the actuarial equivalent of
the value of the benefits accrued under this Plan with respect to such
Participant or beneficiary as of the date of such termination of employment
shall be paid to such Participant in a single lump sum in cash within sixty (60)
days following such termination of employment.
Section 6. Source of Benefits. All benefits payable under this Plan to or
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with respect to a Participant who was an employee of an Employer shall be paid
from the general assets of such Employer. If the benefits payable to or with
respect to a Participant under this Plan are attributable to periods of
employment with more than one Employer, the amount payable to or with respect to
such Participant shall be apportioned among and paid by the Employers who
employed such Participant in such proportions as shall be determined by the
Committee in its absolute discretion. No provision of this Plan shall be deemed
or construed to create a trust fund of any kind or to grant to any Participant
or beneficiary of a Participant any property right or beneficial ownership
interest of any kind in the assets of an Employer. To the extent that any
Participant or beneficiary of a Participant acquires a right to receive payments
from an Employer pursuant to this Plan, such right shall be no greater than the
right of any unsecured general creditor of such Employer.
Section 7. 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 or eliminate an Employer's obligation for
the payment of benefits accrued under this Plan as of the date of such amendment
or termination, such benefits to be determined as if the Retirement Plan had
terminated on such date.
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Section 9. Spendthrift Provision. No right or interest under this Plan of
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a Participant or beneficiary of a Participant may be assigned, transferred or
alienated, in whole or in part, either directly or by operation of law, and no
such right or interest shall be liable for or subject to any debt, obligation or
liability of such Participant or beneficiary.
Section 10. 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 11. Adoption by Other Employers. With the consent of the Chief
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Executive Officer of the Company, this Plan may be adopted by any Employer
participating in the Retirement Plan, such adoption to be effective as of the
date specified by such Employer at the time of adoption.
Section 12. 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.
Section 13. 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.
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IN WITNESS WHEREOF, this Plan has been executed on this _____ day of
____________________, 1995.
THE WISER OIL COMPANY
By
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Title:
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