EXHIBIT 10.36
AMENDED & RESTATED ONEIDA LTD.
DEFERRED COMPENSATION PLAN
FOR
KEY EMPLOYEES
Restated Effective July 28, 2004
PREAMBLE
The purpose of this plan is to provide supplemental retirement income to a
select group of management and highly compensated employees. The plan permits
eligible employees to defer receipt of future compensation and have the deferred
compensation paid upon the retirement or termination of the employee's
employment.
This is a complete restatement of the plan. The plan became effective on
November 1, 1993. This restatement is effective July 28, 2004.
1. DEFINITIONS
When used herein, the following words shall have the meanings set forth
below, unless the context clearly indicates otherwise:
"Account" shall mean the memorandum account established for each
Participant pursuant to paragraph 10.
"Additional Deferred Compensation" shall mean the amounts paid by the
Company in accordance with paragraph 3.
"Beneficiary" shall mean the person(s) designated by a Participant in
accordance with paragraph 7 to receive the unpaid balance of the Participant's
benefit following the Participant's death.
"Board of Directors" shall mean the Board of Directors of Oneida Ltd.,
elected annually by shareholders.
"Bonus" shall mean any profit-sharing bonus that will be paid in cash by
the Company for a Plan Year.
"Committee" shall mean the Management Development and Executive
Compensation Committee periodically appointed by the Board of Directors.
"Company" shall mean Oneida Ltd. and any subsidiary designated to
participate by the Executive Committee except for the purpose of paragraphs 10,
12, 15 and 17 where it shall mean Oneida Ltd. alone.
"Deferred Compensation" shall mean the amount deferred by a Participant in
accordance with paragraph 2.
"Participant" shall mean an employee of the Company who is selected by the
Company to participate in the Plan and who timely executes and returns to the
Plan Administrator a Participation Agreement.
"Participation Agreement" shall mean the written agreement between the
Company and a Participant, in the form attached as Exhibit A of the Plan, which
sets forth the Participant's election to participate in the Plan, the Salary or
Bonus the Participant elects to defer for a Plan Year, and such other terms and
conditions determined by the Plan Administrator to be appropriate and consistent
with the terms of the Plan.
"Plan" shall mean the Oneida Ltd. Deferred Compensation Plan For Key
Employees.
"Plan Year" shall mean the twelve months ending December 31; provided,
however, that the first Plan Year will be a "short year" and shall run from
November 1, 1993 through December 31, 1993.
"Plan Administrator" shall mean the Executive Committee and its
designee(s).
"Salary" shall mean a Participant's regular base salary during a Plan Year,
exclusive of bonuses or any other form of extra or special remuneration.
2. AMOUNT OF DEFERRED COMPENSATION
Pursuant to a duly executed Participation Agreement, a Participant may
elect to defer in any Plan Year any fixed percentage or amount of the
Participant's Salary and of the Participant's Bonus which may be payable for any
such Plan Year. The foregoing shall be subject to a minimum weekly deferral of
$50.00. Participation Agreements must be executed and returned to the Plan
Administrator prior to the first day of the Plan Year to which the Participation
Agreement relates; provided, however, employees who were not eligible to
participate prior to the beginning of a Plan Year, may commence deferrals upon
20 days notice by executing and delivering a Participation Agreement to the Plan
Administrator within 30 days of becoming eligible. A Participation Agreement
shall apply only to Salary or Bonus earned after the Participation Agreement is
signed. A Participant may modify or revoke a Participation Agreement (a) with
respect to subsequent Salary and/or Bonus earned at least 20 days prior to the
beginning of any Plan Year, and (b) with respect to subsequent Salary earned,
one time during any Plan year upon 20 days notice by delivery of a new
Participation Agreement to the Plan Administrator. A Participant's Salary and
Bonus deferred under this paragraph will be credited to the Account maintained
by the Company on behalf of the Participant.
3. ADDITIONAL DEFERRED COMPENSATION
The Company shall credit the Account of the Participant, as Additional
Deferred Compensation, an amount calculated by applying a periodic "Investment
Rate" to all amounts of Deferred Compensation credited hereunder but remaining
unpaid (and of any amounts of Additional Deferred Compensation previously earned
with respect to such Deferred Compensation and remaining unpaid under the Plan).
Additional Deferred Compensation will start being credited on the first day of
the month following the month in which the Deferred Compensation is credited
hereunder and continue with respect to all remaining unpaid sums of Deferred
Compensation and Additional Deferred Compensation during any payout period,
until all such sums are paid out in accordance with this Plan. The "Investment
Rate" will be defined as Moody's Baa Corporate Bond rate, compounded monthly
(e.g., if the Baa rate if 7% and if a Participant's Account begins a month with
a $10,000 balance, Additional Deferred Compensation for that month would be
$58.33). The Investment Rate will be adjusted at the beginning of each calendar
quarter based on the data contained in the Federal Reserve's statistical release
#H.15, Selected Interest Rates.
4. PAYMENT FOR REASONS OTHER THAN DEATH
(a) Upon a Participant's attainment of age 62, or, if later, upon the
Participant's termination of employment that occurs for any reason other than
the Participant's death, and provided the Participant has not made an election
permitted under sections (b) or (c) of this paragraph, the Company will make
monthly payments to the Participant for a period of 10 years commencing on the
first day of the month coincident with or next following the Participant's
attainment of age 62 or, if later, the Participant's termination of employment.
(b) Rather than receive payments as provided in section (a) of this
paragraph, and provided that payments to the Participant have not already
commenced, a Participant may elect to receive payments in an alternative manner.
A participant may elect to have payments commence at the beginning of any
specified Plan Year following the Participant's termination of employment but in
no event later than the beginning of the Plan Year following the year in which
the Participant turns 70 1/2. To be effective, a notice under this section (b)
must be in writing and must be received by the Plan Administrator at least 12
months prior to the Participant's termination of employment. An election made
and filed with the Plan Administrator within the 12-month period prior to the
participant's termination of employment will have no effect unless it is
approved by the Committee.
(c) If payments to a Participant have not commenced, a Participant may
revoke and modify a previous election that was made under section (b) of this
paragraph or under this section (c). To be effective, a modification under this
section (c) must be in writing and must be received by the Plan Administrator at
least 12 months prior to the Participant's termination of employment. A
modification election made and filed with the Plan Administrator within the
12-month period prior to the participant's termination of employment will have
no effect unless it is approved by the Committee.
(d) The foregoing notwithstanding, the Committee, in its sole discretion,
may cause payments to commence sooner than payments would otherwise commence
under this paragraph, and, even if payments to a Participant under the Plan have
already commenced, cause the amount of the Participant's Account to be paid over
a period of time that is shorter than the period payments would otherwise be
paid, but not for a period of less than 3
years. Furthermore, upon receipt of a Participant's written request, the
Committee, in its sole discretion may delay the commencement of payments to the
Participant to a date that is later than the date payments would otherwise
commence but in no event later than the beginning of the Plan year following the
year in which the Participant turns 70 1/2, and even if payments have already
commenced, cause payments to be made over a period of time that is longer than
the period payments would otherwise be paid, but in no event for a period longer
than 10 years.
(e) Amounts paid to a participant in more than one payment are to be paid
in installments that are approximately equal and calculated to fully disburse
the Participant's Account. However, the Committee, in its sole discretion, will
determine the amount of each payment, and may adjust the amount of any payment
for changes in the Investment rate, the period of time over which payments are
to be paid, or for any other reasonable purpose.
5. PAYMENT UPON DEATH
(a) If the Participant's employment is terminated by reason of the
Participant's death, and provided payments to the Participant have not already
commenced, the Company will commence payments to the Participant's Beneficiary
from the Participant's Account as of the first of the month next following the
date of the Participant's death. These payments will be made monthly, and will
be made over a period of 10 years.
(b) If a Participant dies after payments have commenced, payments will be
paid to the Participant's Beneficiary in the same manner as if the Beneficiary
were the Participant.
(c) The foregoing notwithstanding, the Committee, in its sole discretion,
may cause payments to be paid over a period of time that is shorter than the
period payments would otherwise be paid, even if payments have already
commenced, but not for a period less than 3 years. Furthermore, upon receipt of
a Beneficiary's written request, the Committee, in its sole discretion, may
delay the commencement of payments to the Beneficiary to a date that is later
than the date payments would otherwise commence, and even if payments have
already commenced, cause payments to be made over a period of time that is
longer than the period payments would otherwise be paid, but not for a period
more than 10 years.
(d) If the Beneficiary should die before the payment of all installments
due, the Plan Administrator shall pay the remaining amount of the Participant's
Account in a lump sum to the estate of the Beneficiary.
6. GENUINE HARDSHIP
Upon the written application of the Participant in the case of "genuine
hardship", the Committee may permit payment to the Participant of all or a
portion of the Participant's Account, as the Committee shall determine is
necessary to alleviate the hardship. Such hardship must be proved by positive
evidence submitted to the Committee. The Committee shall have sole discretion,
exercisable in conformance with nondiscriminatory policy applicable to
Participants to determine whether such genuine hardship exists and, if so, the
amount necessary to alleviate such hardship and the manner in which such
payments shall be made. Any such determination of the Committee shall be final,
conclusive and binding on Participants and all other interested persons.
For purposes of this paragraph 6, "genuine hardship" shall mean financial
hardship resulting from an accident to or sickness of the Participant, his/her
spouse, his/her dependents or other unanticipated emergency that is caused by an
event beyond the control of the Participant, and that would result in severe
financial hardship to the Participant if early payment were not permitted.
7. DESIGNATION OF BENEFICIARY
The Participant may designate a Beneficiary to receive any amount due
hereunder by executing a written notice thereof to the Plan Administrator at any
time prior to his/her death and may revoke or change the Beneficiary designated
therein without the Beneficiary's consent by written notice delivered to the
Plan Administrator at any time and from time to time prior to the Participant's
death. If the Participant shall have failed to designate a Beneficiary, or if no
such Beneficiary shall survive Participant, then such amount shall be paid to
the Participant's estate.
8. NO RIGHT TO EMPLOYMENT
Nothing contained herein shall be construed as conferring upon the
Participant the right to continue in the employ of the Company as an executive
or in any other capacity.
9. OTHER EMPLOYEE BENEFITS
Any amounts payable under this Plan shall not be deemed salary or other
compensation to the Participant for the purpose of computing benefits to which
he/she may be entitled under any pension plan, profit-sharing plan, stock bonus
plan or other plan or arrangement of the Company for the benefit of its
employees, unless specifically allowed under such plan.
10. DEFERRED COMPENSATION AS AN UNSECURED PROMISE
(a) The Company shall establish a memorandum "Account" on its books for
each Participant as a bookkeeping convenience for the purpose of accounting for
Participants' Deferred Compensation or Additional deferred Compensation
hereunder. However, the Company shall not be required to segregate any funds
representing such Deferred Compensation or Additional Deferred Compensation
payments, and nothing in this Plan shall be construed as providing for such
segregation. In addition, the Company shall not be deemed to be a trustee for
the Participant of any Deferred Compensation or Additional Deferred Compensation
payments hereunder, and the Participant, his/her Beneficiary and any other
person or persons having or claiming a right to payments hereunder or to any
interest in this Plan shall rely solely on the unsecured promise of the Company
to make the payments required hereunder. Nothing herein shall be construed to
give the Participant, his/her Beneficiary or any other person or persons any
right, title, interest or claim in or to any specific asset, fund, reserve,
account or property of any kind whatsoever owned by the Company or in which it
may have any right, title or interest now or in the future, but the Participant
shall have the right to enforce his claim against the Company in the same manner
as any unsecured creditor.
(b) Notwithstanding the foregoing, as soon as practicable, the Company
shall establish an irrevocable trust intended to qualify as a grantor trust
within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A of
the Internal Revenue Code of 1986, as amended (a "Rabbi Trust"), in
substantially the form set forth as Appendix A hereto, which trust shall be
subject to the claims of the creditors of the Company in the event of the
insolvency of the Company. At the time of a Change in Control, the Company shall
transfer assets to the Rabbi Trust so that the aggregate assets held in the
trust are sufficient at all times to pay or provide for the payments required to
be made to participants pursuant to subparagraph (a) of Section 12 of the Plan,
as such amounts are accrued on the books of the Company.
11. WITHHOLDING
The Company retains the right to deduct and withhold from any payments due
hereunder all sums which it may be required to deduct or withhold pursuant to
any applicable statute, law, regulation or order of any jurisdiction whatsoever.
12. CHANGE OF CONTROL
(a) Subject to the limitation described in paragraph 12(a)(ii), if
Participant's employment by the Company is terminated for reasons other than
gross misconduct within 24 months following a "Change in Control", the Company
shall:
(i) Pay to Participant as of the first day of the month following the
Participant's termination of employment a single lump sum an amount equal to
2.99 times the highest amount of deferred Compensation deferred by a Participant
in any one of the five years preceding the year of termination.
(ii) Pay to the Participant, as of the first day of the month
following the Participant's termination of employment in a single lump sum the
full amount of the Participant's Account.
(b) For purposes of paragraph 12(a), a "Change of Control" shall be deemed
to have occurred if:
(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
the Company, any trustee or other fiduciary holding securities under an employee
benefit plan of the Company, or any company 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 provided, however, that for
purposes of this clause (a), any person who becomes the direct or indirect
beneficial owner of securities representing 20% or more of the combined voting
power of the Company's then outstanding securities in connection with an
exchange, conversion or discharge of the debt or equity securities or other
indebtedness of the Company in a transaction or series of transactions pursuant
to the recapitalization plan of the Company, dated as of June 26, 2004 (the
"Recapitalization"), shall be disregarded;
(ii) during any period of two consecutive years (not including any
period prior to the effective date), individuals who at the beginning of such
period constitute the Board of Directors, 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 clause (i), (iii) or (iv) of this
paragraph) whose election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at least three-fourths (3/4) 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 at least a majority of the Board of
Directors, provided however, that the replacement of any director of the Company
serving as of July 12, 2004 with a director designated by a person who has
entered into an agreement to effect the Recapitalization will not be taken into
account for purposes of this clause (b);
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other company, other than (A) 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) more than 50% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation, or (B) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no
"person" (as hereinabove defined) acquires more than 20% of the combined voting
power of the Company's then outstanding securities; or
(iv) 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 of the Company's assets.
13. NO ASSIGNMENT
Neither the Participant, nor his/her Beneficiary, nor any other person
entitled to any payment hereunder shall have power to transfer, assign,
anticipate, mortgage or otherwise encumber any right to receive a payment in
advance of any of such payment, and any attempted transfer, assignment,
anticipation, mortgage or encumbrance shall be void. No payment shall be subject
to seizure for the payment of public or private debts, judgments, alimony or
separate maintenance, or be transferable by operation of law in event of
bankruptcy, insolvency or otherwise.
14. SUCCESSORS AND ASSIGNS
The Plan shall inure to the benefit, of and shall be binding upon the
Participant, his/her Beneficiaries, and their legal representatives, and the
Company, its successors and assigns. For purposes of this Plan, the term
"successors shall mean any person, firm, corporation or business entity which by
merger, consolidation, purchase of assets or otherwise, succeeds to or acquires
all or substantially all of the assets or business of the Company.
15. AMENDMENT AND TERMINATION
The Company intends to maintain the Plan until all benefit payments are
made pursuant to the Plan. However, the Company reserves the right to amend or
terminate the Plan at any time. Any such amendment or termination shall be made
pursuant to appropriate action of the Committee. Unless each affected
Participant or Beneficiary provides written consent, no amendment or termination
of the Plan shall directly or indirectly affect the timing or deprive any
Participant of any portion of any amount which would otherwise be payable to a
Participant. Notwithstanding any other provision in the Plan to the contrary,
the Plan shall terminate automatically upon the final payment of all amounts
payable hereunder.
16. CLAIMS PROCEDURE
16.01 Notice of Denial. If a request for benefits is wholly or partially
denied, notice of the denial, prepared in accordance with paragraph 16.02, shall
be furnished to the claimant within a reasonable period of time, not to exceed
60 days, after receipt of the request by the Plan Administrator, unless special
circumstances require an extension of time for processing the request. If such
an extension of time is required, written notice of the extension shall be
furnished to the claimant prior to the termination of the initial 60-day period.
In no event shall such extension exceed a period of 60 days from the end of such
initial period. The extension notice shall indicate the special circumstances
requiring an extension of time and the date on which the Plan Administrator
expects to communicate a decision.
16.02 Content of Notice. The Plan Administrator shall provide every
claimant whose request for benefits is denied a written notice setting forth, in
a manner calculated to be understood by the claimant, the following:
(a) a specific reason or reasons for the denial;
(b) specific references to the pertinent Plan provisions upon which
the denial is based;
(c) a description of any additional material or information necessary
for the claimant to perfect the request and an explanation of why
such material or information is necessary; and
(d) an explanation of the Plan's review procedure, as set forth in
paragraphs 16.03 and 16.04.
16.03 Review Procedure. The purpose of the review procedure set forth in
this paragraph and paragraph 16.04 is to provide a procedure by which a claimant
under the Plan may have reasonable opportunity to appeal a denial of a request
for benefits to the Plan Administrator for a full and fair review. To accomplish
that purpose, the claimant (or the claimant's duly authorized representative)
may:
(a) review pertinent Plan documents; and
(b) submit issues and comments in writing.
A claimant (or the claimant's duly authorized representative) shall request a
review by filing a written application for review with the Plan Administrator at
any time within 60 days after receipt by the claimant of written notice of the
denial of the claimant's request for benefits.
16.04 Decision on Review. A decision on review of a denial request for
benefits shall be made in the following manner:
(a) the decision on review shall be made by the Plan Administrator.
The Plan Administrator shall make a decision promptly, but not
later than 60 days after receipt of the request for review,
unless special circumstances require an extension of time for
processing, in which case a decision shall be rendered as soon as
possible, but not later than 90 days after receipt of the request
for review. If such an extension of time for review is required,
written notice of the extension shall be furnished by the Plan
Administrator to the claimant prior to the commencement of the
extension.
(b) the decision on review shall be in writing from the Plan
Administrator, shall be written in a manner calculated to be
understood by the claimant, and shall include specific reasons
for the decision and specific references to the pertinent Plan
provisions upon which the decision is based.
17. INTERPRETATION
The Committee shall have full power and authority to interpret, construe
and administer this Plan and the Company's interpretation and construction
thereof, and actions thereunder, shall be binding and conclusive on all persons
for all purposes.
18. GOVERNING LAW
The Plan is established under, and shall be governed and construed
according to, the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and regulations promulgated thereunder. The laws of the State of New
York also shall apply to the extent such laws are not preempted by ERISA.
19. JURISDICTION AND VENUE
The jurisdiction of any proceeding arising out of or with respect to this
Agreement shall be in a court of competent jurisdiction in the State of New
York. The parties to any such proceeding shall be subject to personal
jurisdiction in the State of New York. Venue of any proceeding shall lie in
Madison County, New York, if a state court action, and in the United States
District Court, Northern District, if a federal court action.
20. SEVERABILITY
If one or more provisions of the Plan, or any part thereof, shall be
determined by a court of competent jurisdiction to be invalid or unenforceable,
then the Plan shall be administered as if such invalid or unenforceable
provision had not been contained in the Plan.
The invalidity or unenforceability of any Plan provision, or any part
thereof, shall not affect the validity and enforceability of any other Plan
provision or any part thereof.