EXHIBIT 10.9
SALT HOLDINGS CORPORATION
SENIOR EXECUTIVES' DEFERRED COMPENSATION PLAN
The Salt Holdings Corporation Senior Executives' Deferred Compensation
Plan (the "Plan") has been adopted by Salt Holdings Corporation, a corporation
organized under the laws of the state of Delaware, effective as of the Effective
Date (as hereinafter defined), for the benefit of its eligible employees.
The Plan is a nonqualified deferred compensation plan pursuant to which
the Company (as hereinafter defined) and its affiliates may defer compensation
on behalf of certain employees. The Plan is maintained primarily for the purpose
of providing deferred compensation for a select group of management or highly
compensated employees, within the meaning of Sections 201(2), 301(a)(3) and
401(a)(1) of the Employee Retirement Income Security Act of 1974, as amended.
ARTICLE I.
DEFINITIONS
The following words and phrases used in this Plan shall have the
respective meanings set forth below unless the context clearly indicates to the
contrary. Wherever appropriate herein, words used in the singular shall be
considered to include the plural, words used in the plural shall be considered
to include the singular, and the masculine gender shall be deemed to include the
feminine gender.
Section 1.1 "Administrator" shall mean the Company acting through the
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Board or any Person to whom it delegates its authority pursuant to Article VI.
Section 1.2 "Affiliate" shall mean with respect to any Person, any
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other Person that, directly or indirectly through one or more intermediaries
Controls, is Controlled by, or is under common Control with, such Person and/or
one or more Affiliates thereof. The term "Control" includes, without limitation,
the possession, directly or indirectly, of the power to direct the management
and policies of a Person, whether through the ownership of voting securities, by
contract or otherwise. The term "Affiliate" shall not include at any time any
portfolio companies of Apollo Management V, L.P. or its Affiliates.
Section 1.3 "Board" shall mean the Board of Directors of the Company.
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Section 1.4 "Closing Date" shall mean the date on which the Proposed
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Merger is consummated.
Section 1.5 "Common Stock" shall mean shares of Company's common stock,
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par value $0.01 per share.
Section 1.6 "Company" shall mean Salt Holdings Corporation, a Delaware
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corporation.
Section 1.7 "Deferral Election Form" shall mean the written form or
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forms pursuant to which a Participant may elect to make a Retention Bonus
Deferral, a Sales Price Incentive Bonus Deferral and/or a Transferred Deferral,
if any, in accordance with Section 3.1.
Section 1.8 "Deferred Common Stock Unit" shall mean the right of a
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Participant to receive one share of Common Stock as of the Distribution Date in
accordance with Article V.
Section 1.9 "Deferred Compensation Account" of a Participant shall
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mean the bookkeeping account established on behalf of the Participant in
accordance with Section 3.1.
Section 1.10 "Deferred Preferred Stock Unit" shall mean the right of a
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Participant to receive one share of Preferred Stock as of the Distribution Date
in accordance with Article V.
Section 1.11 "Distribution Date" shall mean the date on which the event
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described in Section 5.1 shall occur.
Section 1.12 "Effective Date" means the effective date of the Plan
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which shall be October 8, 2001.
Section 1.13 "Exit Event" shall have the meaning set forth in the
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Proposed Stock Rights Agreement.
Section 1.14 "Fund" shall have the meaning set forth in Section 3.4.
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Section 1.15 "Investors" shall mean Apollo Investment Fund V, L.P.,
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Apollo Overseas Partners V, L.P., or any investment fund managed by Apollo
Management V, L.P. or any of its Affiliates, and any of their successors and
assigns.
Section 1.16 "Investors' Common Stock Investment Ratio" shall mean, as
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of the Closing Date, the ratio of (a) the aggregate value as of such date of
shares of Common Stock purchased (directly or indirectly) by the Investors as of
the Closing Date to (b) the sum of (i) the aggregate value as of such date of
shares of Common Stock purchased (directly or indirectly) by the Investors as of
the Closing Date and (ii) the aggregate value as of such date of shares of
Preferred Stock purchased (directly or indirectly) by the Investors as of the
Closing Date.
Section 1.17 "Investors' Common Stock Merger Consideration" shall mean
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the merger consideration per share of Common Stock paid by the Investors as of
the Closing Date, subject to appropriate adjustment by the Administrator for
stock splits, stock dividends, combinations and similar transactions.
Section 1.18 "Investors' Preferred Stock Investment Ratio" shall mean,
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as of the Closing Date, the ratio of (a) the aggregate value as of such date of
shares of Preferred Stock purchased (directly or indirectly) by the Investors as
of the Closing Date to (b) the sum of (i) the aggregate value as of such date of
shares of Common Stock purchased (directly or indirectly) by the
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Investors as of the Closing Date and (ii) the aggregate value as of such date of
shares of Preferred Stock purchased (directly or indirectly) by the Investors as
of the Closing Date.
Section 1.19 "Investors' Preferred Stock Merger Consideration" shall
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mean the merger consideration per share of Preferred Stock paid by the Investors
as of the Closing Date, subject to appropriate adjustment by the Administrator
for stock splits, stock dividends, combinations and similar transactions.
Section 1.20 "Participant" shall mean any person included in the Plan
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as provided in Article II.
Section 1.21 "Person" shall be construed broadly and shall include,
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without limitation, an individual, a partnership, a corporation, an association,
a joint stock company, a limited liability company, a trust, a joint venture, an
unincorporated organization and a governmental entity or any department, agency
or political subdivision thereof.
Section 1.22 "Plan" shall mean the Salt Holdings Corporation Senior
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Executives' Deferred Compensation Plan, as set forth in this document and as it
may hereafter be amended from time to time.
Section 1.23 "Preferred Stock" shall mean shares of any class of the
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Company's preferred stock issued and outstanding as of the Closing Date.
Section 1.24 "Proposed Merger" shall mean that certain proposed merger
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between (a) the Company or one of its Affiliates and (b) one or more Affiliates
of the Investors.
Section 1.25 "Proposed Merger Agreement" shall mean the agreement
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effectuating the Proposed Merger, as it may be revised or amended from time to
time.
Section 1.26 "Proposed Stock Rights Agreement" shall mean that certain
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Stock Rights Agreement to be entered into in connection with Proposed Merger, as
it may be revised or amended from time to time.
Section 1.27 "Retention Agreement" with respect to any Participant
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shall mean the Retention Bonus and Severance Agreement entered into by and
between the Participant and IMC Global Inc., as described on Exhibit A hereto.
Section 1.28 "Retention Bonus Deferral" shall mean the Participant's
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retention bonus payment pursuant to the Retention Agreement which the
Participant elects to defer pursuant to Section 2.2 of the Plan.
Section 1.29 "Sales Price Incentive Bonus Deferral" shall mean a
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Participant's sales price incentive bonus payment pursuant to the Retention
Agreement which the Participant elects to defer pursuant to Section 2.2 of the
Plan.
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Section 1.30 "Transferred Deferral" shall mean the Participant's
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balance, if any, as of the Closing Date in (a) the IMC Global, Inc. 1998
Voluntary Nonqualified Deferred Compensation Plan, (b) the IMC Global Inc. 1998
Supplemental Executive Retirement Plan or (c) to the extent permitted by the
Company, any other similar nonqualified deferred compensation plan, in each case
which the Participant elects to defer pursuant to Section 2.2 of the Plan.
Section 1.31 "Termination of Employment" shall mean the time when the
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employee-employer relationship between the Participant and the Company or any of
its Affiliates is terminated for any reason, with or without good cause,
including, but not by way of limitation, a termination by resignation,
discharge, disability, death or retirement, but excluding transfers among and
between the Company and any Affiliate of the Company.
ARTICLE II.
PARTICIPATION
Section 2.1 Participation. Unless otherwise determined by the
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Administrator in its sole discretion, each employee of the Company who, as of
the Effective Date, has entered into a Retention Agreement and is actively
employed by the Company or any of its Affiliates shall be eligible to
participate in the Plan.
Section 2.2 Deferred Compensation. In accordance with the terms set
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forth in a Participant's Deferral Election Form, each Participant shall be
entitled to make a Retention Bonus Deferral, a Sales Price Incentive Bonus
Deferral and/or a Transferred Deferral, as applicable, in such amount as is
elected by such Participant in his Deferral Election Form. In the event that a
Participant elects to make (a) a Retention Bonus Deferral and/or Sales Price
Incentive Bonus Deferral, such Participant shall, in accordance with the terms
of his Deferral Election Form, forego the receipt of that portion of his
retention bonus and/or sales price incentive bonus under his Retention Agreement
so elected and instead such Participant's Deferred Compensation Account shall be
credited with Deferred Common Stock Units and/or Deferred Preferred Stock Units
in accordance with the terms of this Plan and/or (b) a Transferred Deferral,
such Participant shall, in accordance with the terms of his Deferral Election
Form, forego the receipt of that portion of the payment of his existing balance
so elected that would have otherwise been payable as of or following the Closing
Date under such applicable nonqualified deferred compensation plan and instead
such Participant's Deferred Compensation Account shall be credited with Deferred
Common Stock Units and/or Deferred Preferred Stock Units in accordance with the
terms of this Plan. Such Retention Bonus Deferral, Sales Price Incentive Bonus
Deferral and/or Transferred Deferral shall be irrevocable and shall be effective
as of the Closing Date.
ARTICLE III.
PARTICIPATION
Section 3.1 Deferred Compensation Accounts
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(a) The Administrator shall establish and maintain for each Participant
a Deferred Compensation Account to which shall be (i) credited the amounts
determined under Section
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3.1(b), (ii) credited amounts determined under Section 4.2 and (iii) debited the
amount of any distributions under the Plan.
(b) As of the Closing Date, each Participant's Deferred Compensation
Account shall be credited with the amount of his Retention Bonus Deferral, Sales
Price Incentive Bonus Deferral and/or Transferred Deferral. Notwithstanding any
other provision of this Plan, no amount shall be credited to any Participant's
Deferred Compensation Account prior to the Closing Date.
Section 3.2 Designation of Beneficiary. Each Participant shall have the
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right to designate, revoke and redesignate beneficiaries hereunder and to direct
payment of the amount or distribution of the items credited to his Deferred
Compensation Account to such beneficiaries upon his death. Designation,
revocation and redesignation of beneficiaries shall be made on such form as
shall be designated by the Administrator and shall be effective upon delivery to
the Administrator.
Section 3.3 Assignments Prohibited. No part of a Participant's Deferred
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Compensation Account shall be liable for the debts, contracts or engagements of
any Participant, his beneficiaries or successors in interest, or be taken in
execution by levy, attachment or garnishment or by any other legal or equitable
proceeding, nor shall any such person have any rights to alienate, anticipate,
commute, pledge, encumber or assign any benefits or payments hereunder in any
manner whatsoever except to designate a beneficiary as provided herein.
Section 3.4 Fund. The Administrator, in its discretion, may elect to
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establish a fund (the "Fund") containing assets equal to the amounts credited to
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Participants' Deferred Compensation Accounts, and may elect in its discretion to
designate a trustee to hold the Fund in trust; provided, however, that such Fund
shall remain a general asset of the Company subject to the rights of creditors
of the Company in the event of the Company's bankruptcy or insolvency as defined
in any such trust.
ARTICLE IV.
DEEMED INVESTMENTS
Section 4.1 Deferred Stock Units. Unless otherwise determined by the
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Administrator in its reasonable discretion, as of the Closing Date each
Participant's Deferred Compensation Account shall be deemed to be invested in:
(a) That number of Deferred Common Stock Units equal to the ratio of
(i) the product of (A) the sum of such Participant's (I) Retention Bonus
Deferral, (II) Sales Price Incentive Bonus Deferral and (III) Transferred
Deferral and (B) the Investors' Common Stock Investment Ratio to (ii) the
Investors' Common Stock Merger Consideration; and
(b) That number of Deferred Preferred Stock Units equal to the ratio of
(i) the product of (A) the sum of such Participant's (I) Retention Bonus
Deferral (II) Sales Price Incentive Bonus Deferral and (III) Transferred
Deferral and (B) the Investors' Preferred Stock Investment Ratio to (ii) the
Investors' Preferred Stock Merger Consideration.
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Section 4.2 Dividend Equivalents. As of the date the Company pays any
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dividend (whether in cash or in kind) on shares of Common Stock or Preferred
Stock, each Participant's Deferred Compensation Account shall be credited with:
(a) That number of Deferred Common Stock Units equal to the ratio of
(i) the aggregate value of the dividend that would have been payable on the
Deferred Common Stock Units held by the Participant immediately prior to such
payment date had the shares of Common Stock represented by such Deferred Common
Stock Units been outstanding as of such payment date to (ii) the fair market
value per share of Common Stock as of such date (determined in accordance with
the terms of the Participant's Investor Rights Agreement with the Company); and
(b) That number of Deferred Preferred Stock Units equal to the ratio of
(i) the aggregate value of the dividend that would have been payable on the
Deferred Preferred Stock Units held by the Participant immediately prior to such
payment date had the shares of Preferred Stock represented by such Deferred
Preferred Stock Units been outstanding as of such payment date to (ii) the fair
market value per share of Preferred Stock as of such date (determined in
accordance with the terms of the Participant's Investor Rights Agreement with
the Company).
Section 4.3 Forfeiture. Notwithstanding any other provision of the Plan
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(a) a Participant's Retention Bonus Deferral shall be forfeited if, and to the
extent that, such Participant would not have been entitled to receive either (i)
a Retention Bonus pursuant to Section 1 of his Retention Agreement or (ii)
Severance payments pursuant to Section 2 of his Retention Agreement and (b) a
Participant's Sales Price Incentive Bonus Deferral shall be forfeited if, and to
the extent that, such Participant would not have been entitled to receive a
Sales Price Incentive Bonus pursuant to Section 1 of his Retention Agreement.
Section 4.4 Non-Consummation of Proposed Merger. Notwithstanding any
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other provision of the Plan (a) in the event that the Proposed Merger Agreement
is not fully executed by the parties thereto on or prior to December 31, 2001,
the Plan will terminate as of December 31, 2001 and (b) in the event that the
Proposed Merger Agreement is terminated in accordance with its terms prior to
the Closing Date, the Plan will terminate as of the effective date of such
termination, and in each such case all Retention Bonus Deferrals, Sales Price
Incentive Bonus Deferrals and Transferred Deferrals shall become void and of no
effect as of the date of Plan termination.
ARTICLE V.
BENEFITS
Section 5.1 Time of Distribution. Each Participant's Deferred
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Compensation Account, to the extent not previously forfeited pursuant to Section
4.3, shall be distributed to the Participant (or his beneficiaries, as
applicable), less any amounts required to be withheld by applicable law, upon
(or as soon as reasonably practicable following) the earlier to occur following
the Closing Date of (a) the Participant's Termination of Employment or (b) an
Exit Event.
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Section 5.2 Form of Distribution. With respect to Deferred Common Stock
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Units, all distributions from the Plan shall be made in the form of whole shares
of Common Stock with fractional shares credited to federal income taxes
withheld. With respect to Deferred Preferred Stock Units, all distributions from
the Plan shall be made in the form of whole shares of Preferred Stock with
fractional shares credited to federal income taxes withheld. Notwithstanding any
other provision of the Plan, unless otherwise determined by the Administrator,
no share of Common Stock or Preferred Stock shall be issued to any Participant
(or his beneficiaries, applicable) under this Plan unless and until such
Participant has entered into an Investor Rights Agreement with the Company.
ARTICLE VI.
ADMINISTRATIVE PROVISIONS
Section 6.1 Administrator's Duties and Powers
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(a) The Board shall conduct the general administration of the Plan
in accordance with the Plan and shall have full discretionary power and
authority to carry out that function. Among its necessary powers and duties, are
the following:
(i) To delegate all or part of its function as Administrator
to others and to revoke any such delegation.
(ii) To determine questions of eligibility and vesting of
Participants and their entitlement to benefits.
(iii) To select and engage attorneys, accountants, actuaries,
trustees, appraisers, brokers, consultants, administrators, physicians or other
persons to render service or advice with regard to any responsibility the
Administrator or the Board has under the Plan, or otherwise, to designate such
persons to carry out responsibilities, and (with the Company, the Board and its
officers, trustees and employees) to rely upon the advice, opinions or
valuations of any such persons, to the extent permitted by law, being fully
protected in acting or relying thereon in good faith.
(iv) To interpret the Plan for purpose of the administration
and application of the Plan, in a manner not inconsistent with the Plan or
applicable law and to amend or revoke any such interpretation.
(v) To adopt Rules of the Plan that are not inconsistent
with the Plan or applicable law and to amend or revoke any such rules.
(b) Every finding, decision, and determination made by the
Administrator shall, to the full extent permitted by law, be final and binding
upon all parties, except to the extent found by a court of competent
jurisdiction to be unreasonable.
Section 6.2 Indemnification by the Company; Liability Insurance
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(a) The Company shall pay or reimburse any of the Company's officers,
directors or employees who administer the Plan for all expenses incurred by such
persons in, and shall indemnify and hold them harmless from, all claims,
liability and costs (including reasonable attorneys' fees) arising out of the
good faith performance of their Plan functions.
(b) The Company may obtain and provide for any such person, at the
Company's expense, liability insurance against liabilities imposed on him by
law.
Section 6.3 Limitations Upon Powers. The Plan shall be uniformly and
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consistently administered, interpreted and applied with regard to all
Participants in similar circumstances. The Plan shall be administered,
interpreted and applied fairly and equitably in accordance with the specified
purposes of the Plan.
Section 6.4 Recordkeeping
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(a) The Administrator shall maintain suitable records as follows: (i)
records of each Participant's individual Deferred Compensation Accounts, (ii)
records which show the operations of the Plan, and (iii) records of its
deliberations and decisions.
(b) The Administrator may appoint a secretary to keep the record of
proceedings, to transmit its decisions, instructions, consents or directions to
any interested party, to execute and file, on behalf of the Administrator, such
documents, reports or other matters as may be necessary or appropriate under
applicable law to perform ministerial acts.
(c) The Administrator shall not be required to maintain any records or
accounts which duplicate any records or accounts maintained by the Company.
Section 6.5 Service of Process. The Secretary of the Company is hereby
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designated as agent of the Plan for the service of legal process.
Section 6.6 Service in More than One Capacity. Any person or group of
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persons may serve in more than one capacity with respect to the Plan.
Section 6.7 Statement to Participants. The Administrator shall from
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time to time in its discretion furnish to each Participant a statement setting
forth the value of his Deferred Compensation Accounts and such other information
as the Administrator shall deem advisable to furnish.
Section 6.8 Corporate Changes. If the Company at any time (a)
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increases or decreases proportionately to all holders of shares of its Common
Stock or Preferred Stock then outstanding, whether by stock dividend, stock
split, consolidation of shares, or (b) otherwise effectuates any change in the
capitalization of the Company, then all Deferred Common Stock Units and/or
Deferred Preferred Stock Units theretofore credited and unforfeited shall be
equitably adjusted with respect to the number of shares of such Common Stock or
Preferred Stock, as applicable, represented thereby (or exchanged for a right to
receive another class or kind of securities of the
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Company) in such manner as shall be determined in good faith by the
Administrator in its sole discretion.
ARTICLE VII.
MISCELLANEOUS PROVISIONS
Section 7.1 Amendment of Plan. Except as may otherwise be prohibited by
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applicable law, the Plan may be wholly or partially amended by the Administrator
from time to time including retroactive amendments; provided, however, that no
amendment shall decrease the non-forfeitable interest any Participant or any
other person entitled to payment under the Plan has in the Participant's
Deferred Compensation Accounts without such Participant's written approval.
Section 7.2 Errors and Misstatements. In the event of any misstatement
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or omission of fact by a Participant to the Administrator or any clerical error
resulting in payment of benefits in an incorrect amount, the Administrator shall
promptly cause the amount of future payments to be corrected upon discovery of
the facts and shall pay the Participant or any other person entitled to payment
under the Plan any underpayment in cash in a lump sum or to recoup any
overpayment from future payments to the participant or any other person entitled
to payment under the Plan in such amounts as the Administrator shall direct or
to proceed against the Participant or any other person entitled to payment under
the Plan for recovery of any such overpayment.
Section 7.3 Governing Law. This Plan shall be construed, administered
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and governed in all respects under and by applicable federal laws and, where
state law is applicable, the laws of the State of Delaware.
Section 7.4 Tax Withholding. During the time a Participant is employed
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with the Company, the Company shall deduct from such Participant's wages any
amounts required to be withheld by the Company with respect to the accrual of a
Participant's benefits hereunder. Further, there shall be deducted from each
payment of a Participant's Benefits under the Plan any taxes required to be
withheld by the Company in respect of such payment. The Company shall have the
right to reduce any payment by an amount sufficient to pay said taxes. In lieu
of a deduction, the Committee may permit the Participant to pay or reimburse the
Company for said taxes.
Section 7.5 Limitation on Rights of Employees. The Plan is strictly a
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voluntary undertaking on the part of the Company and shall not constitute a
contract of employment between the Company and any Participant. Nothing
contained in the Plan shall give any Participant the right to be retained in the
service of the Company or to interfere with or restrict the right of the
Company, which is hereby expressly reserved, to discharge or retire any
Participant, except as provided by law, at any time without notice and with or
without cause. Inclusion under the Plan will not give any Participant any right
or claim to any benefit hereunder except to the extent such right has
specifically become fixed under the terms of the Plan. The doctrine of
substantial performance shall have no application to Participants or any other
persons entitled to payments under the Plan.
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Section 7.6 Payment on Behalf of Minors. In the event any amount
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becomes payable under the Plan to a minor or a person who, in the sole judgment
of the Administrator is considered by reason of physical or mental condition to
be unable to give a valid receipt therefor, the Administrator may direct that
such payment be made to any person found by the administrator in its sole
judgment, to have assumed the care of such minor or other person. Any payment
made pursuant to such determination shall constitute a full release and
discharge of the Company, the Board, the Administrator, and their officers,
directors and employees.
Section 7.7 References. Unless the context clearly indicates to the
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contrary, a reference to a statute, regulation or document shall be construed as
referring to any subsequently enacted, adopted or executed statute, regulation
or document.
Section 7.8 Termination of the Plan. While the Plan is intended as a
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permanent program, the Board shall have the right at any time to declare the
Plan terminated completely as to the Company or as to any division, facility or
other operational unit thereof. In the event of any termination, the
Administrator shall continue to maintain Participants' Deferred Compensation
Accounts (in accordance with the terms of the Plan) and payment of such Deferred
Compensation Accounts shall be made in accordance with Article V.
Section 7.9 Effect Upon Other Plans. Except to the extent provided
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herein, nothing in this Plan shall be construed to affect the provisions of any
other plan maintained by the Company.
Section 7.10 Titles. Titles are provided herein for convenience only
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and are not to serve as a basis for interpretation or construction of the Plan.
Section 7.11 Enforcement. In the event the Company or any Participant
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institutes litigation to enforce or protect its rights under the Plan, the party
prevailing in any such litigation shall be paid by the non-prevailing party, in
addition to all other relief, all reasonable attorneys' fees, out-of-pocket
costs and disbursements relating to such litigation.
* * * * *
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed effective as of the date first above written.
SALT HOLDINGS CORPORATION
By______________________________
Its_____________________________
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