Exhibit 10(x)
Oglebay Norton Company
Capital Accumulation Plan
TABLE OF CONTENTS
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I. PURPOSE.............................................................. 1
II. DEFINITIONS.......................................................... 1
III. ELIGIBILITY; PARTICIPATION LIMITS.................................... 4
3.01 ................................................................ 4
a) Eligibility to Participate.................................. 4
b) Acknowledgement of Eligibility and Election to Participate.. 4
c) New Participants............................................ 5
3.02 Deferral of Salary, Bonus, and/or LTIP Payment.................. 5
3.03 Suspension of Agreement to Defer................................ 5
3.04 Timing of Deferral Credits...................................... 5
3.05 Vesting......................................................... 6
3.06 Matching Contributions.......................................... 6
3.07 Employee Benefit Plan Equivalent................................ 6
3.08 Determination of Account........................................ 6
3.09 Deferred Compensation Account Investment Options................ 7
3.10 Change of Investment Election................................... 7
IV. DISTRIBUTIONS........................................................ 7
4.01 Distribution on Retirement...................................... 7
4.02 Distribution on Death........................................... 8
4.03 Distribution on Termination of Service.......................... 8
4.04 Disability Benefit.............................................. 8
4.05 Method of Timing of Distribution................................ 9
a) Election in Agreement....................................... 9
b) Election to Change Method of Distribution................... 9
c) Small Benefit Cash-Out...................................... 9
4.06 Interim Distribution............................................ 9
4.07 Hardship Distributions; Waiver of Deferral...................... 10
4.08 Withholding; Employment Taxes................................... 10
4.09 Commencement of Payments........................................ 10
4.10 Change in Control Distribution Election......................... 11
4.11 Recipients of Payments: Designation of Beneficiary............. 11
4.12 Distributions in Cash........................................... 11
V. CLAIM FOR BENEFITS PROCEDURE......................................... 12
5.01 Claim for Benefits.............................................. 12
5.02 Request for Review of a Denial of a Claim for Benefits.......... 12
5.03 Decision Upon Review of a Denial of a Claim for Benefits........ 12
(i)
VI. ADMINISTRATION....................................................... 13
6.01 Plan Committee.................................................. 13
6.02 General Rights, Powers and Duties of Committee.................. 13
6.03 Information to be Furnished to Committee........................ 14
6.04 Indemnification................................................. 14
VII. AMENDMENT AND TERMINATION............................................ 14
7.01 Amendment....................................................... 14
7.02 Company's Right to Terminate.................................... 14
7.03 Special Termination............................................. 14
VIII. MISCELLANEOUS........................................................ 15
8.01 Separation of Plan: No Implied Rights.......................... 15
8.02 No Right to Employer Assets..................................... 15
8.03 No Employment Rights............................................ 16
8.04 Offset.......................................................... 16
8.05 Protective Provisions........................................... 16
8.06 Non-assignability............................................... 16
8.07 Gender and Number............................................... 17
8.08 Notice.......................................................... 17
8.09 Governing Laws.................................................. 17
8.10 Capital Accumulation Plan Trust................................. 17
(ii)
Oglebay Norton Company Capital Accumulation Plan
I. PURPOSE
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The purpose of the Oglebay Norton Company Capital Accumulation Plan is to
provide a means whereby the Company may afford a select group of management
or highly compensated employees with an opportunity to accumulate
additional financial security by providing a vehicle to defer compensation
in excess of the amount of compensation which may be deferred under the
Oglebay Norton Incentive Savings and Stock Ownership Plan.
Compensation deferrals made pursuant to the Plan will be credited with
investment gains or losses, in accordance with the Plan, and benefits will
be paid to the Participant (or his or her Beneficiary) as described herein.
II. DEFINITIONS
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2.01 "Age" means the Participant's chronological age on the relevant date.
2.02 "Agreement" means the Oglebay Norton Company Capital Accumulation Plan
Participation Agreement, executed between a Participant and the Company
whereby a Participant agrees to defer a portion of his or her Salary,
Bonus, and/or LTIP Payment pursuant to the provisions of the Plan.
2.03 "Beneficiary" means the person, persons or trust who under the Plan,
becomes entitled to receive a Participant's interest in the event of the
Participant's death.
2.04 "Bonus" means the cash compensation paid to the Participant in excess of
Salary, not including any LTIP Payment or any payment in the nature of an
expense reimbursement or welfare plan benefit, but before any deferrals
made pursuant to this Plan or any other plan.
2.05 "Capital Accumulation Plan Trust" and "Trust" mean the Oglebay Norton
Company Capital Accumulation Plan Trust, an irrevocable grantor trust or
trusts established by the Company, in accordance with Section 8.10, with an
independent trustee for the benefit of persons entitled to receive payments
under this Plan.
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2.06 "Change in Control" means the occurrence of any of the following events:
(a) a report is filed with the Securities and Exchange Commission (the
"SEC") on Schedule 13D or Schedule 14D-1 (or any successor schedule,
form, or report), each as promulgated pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act"), disclosing that any
"person" (as the term "person" is used in Section 13(d) or Section
14(d)(2) of the Exchange Act) is or has become a beneficial owner,
directly or indirectly, of securities of the Company representing 25%
or more of the combined voting power of the Company's then outstanding
securities;
(b) the Company files a report or proxy statement with the SEC pursuant to
the Exchange Act disclosing in response to Item 1 of Form 8-K
thereunder or Item 5(f) of Schedule 14A thereunder that a Change in
Control of the Company has or may have occurred or will occur in the
future pursuant to any then-existing contract or transaction;
(c) the Company is merged or consolidated with another corporation and, as
a result thereof, securities representing less than 50% of the
combined voting power of the surviving or resulting corporation's
securities (or of the securities of a parent corporation in case of a
merger in which the surviving or resulting corporation becomes a
wholly-owned subsidiary of the parent corporation) are owned in the
aggregate by holders of the Company's securities immediately prior to
such merger or consolidation;
(d) all or substantially all of the assets of the Company are sold in a
single transaction or a series of related transactions to a single
purchaser or a group of affiliated purchasers; or
(e) during any period of 24 consecutive months, individuals who were
Directors of the Company at the beginning of such period cease to
constitute at least a majority of the Company's Board of Directors
(the "Board") unless the election, or nomination for election by the
Company's shareholders, of more than one half of any new Directors of
the Company was approved by a vote of at least two-thirds of the
Directors of the Company then still in office who were Directors of
the Company at the beginning of such 24 month period.
Following a Change in Control of the Company, distributions under the Plan
shall be paid subject to the provisions of Section 4.10.
2.07 "Code" means the Internal Revenue Code of 1986, as amended.
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2.08 "Committee" and "Plan Committee" of the Company means the Committee
appointed pursuant to Article VI to manage and administer the Plan. In the
event that no Committee is in existence at any point in time, the Committee
shall mean the Company.
2.09 "Company" means Oglebay Norton Company, a Delaware corporation, and its
successors and assigns.
2.10 "Determination Date" means the date on which the amount of a Participant's
Deferred Compensation Account is determined as provided in Article III
hereof. The close of each business day and the date of a Participant's
Termination of Service shall be a Determination Date.
2.11 "Deferred Compensation Account" means the account(s) maintained by the
Company for each Participant, pursuant to Article III. Notwithstanding the
provisions of Section 8.10, a Participant's Deferred Compensation Account
shall not constitute or be treated as a trust fund or escrow arrangement of
any kind.
2.12 "Disability" shall have the same meaning and shall be determined in the
same manner as in the Company's Long-Term Disability Plan.
2.13 "Employer" shall mean the Company and each of its affiliates which is the
employer of a Participant.
2.14 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
2.15 "ERISA Funded" means that the Plan is prevented from satisfying the
"unfunded" criterion of the exceptions to the application of Parts 2
through 4 of Subtitle B of Title I of ERISA.
2.16 "LTIP Payment" means a cash incentive payment made pursuant to the
Company's 1999 Long-Term Incentive Plan.
2.17 "Participant" means an employee of an Employer who is eligible to
participate in the Plan pursuant to Section 3.01, and who enters into an
Agreement.
2.18 "Plan" means the Oglebay Norton Company Capital Accumulation Plan, as
amended from time to time.
2.19 "Plan Effective Date" means January 1, 2000.
2.20 "Plan Year" means a calendar year.
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2.21 "Retirement Date" and "Retirement" mean the date of a Termination of
Service of a Participant for reasons other than death or Disability after
the sum of the Participant's Years of Service and Age is equal to or
greater than sixty (60).
2.22 "Incentive Savings Plan" means the Oglebay Norton Incentive Savings and
Stock Ownership Plan, as amended from time to time.
2.23 "Salary" means the salary paid to a Participant during a calendar year or
other compensation (exclusive of Bonus and LTIP Payment) considered "wages"
for Medicare and federal income tax withholding purposes, but before
deferrals made pursuant to this Plan or any other plan. Notwithstanding
the foregoing, Salary shall not include the value of any qualified or non-
qualified stock option granted to the Participant to the extent such value
is includible in the Participant's taxable income, any amount realized on
exercise of any such option or upon a disqualifying disposition of any
stock acquired in connection with any such exercise, any payment in the
nature of an expense reimbursement, nor any welfare plan benefit, nor shall
Salary include severance or other payments made in connection with a
Participant's Termination of Service.
2.24 "Tax Funded" means that the interest of a Participant in the Plan will be
includable in the gross income of the Participant for federal income tax
purposes prior to actual receipt of Plan benefits by the Participant.
2.25 "Termination of Service" means the Participant's ceasing his or her
employment with the Employers for any reason whatsoever, whether
voluntarily or involuntarily, including by reason of Retirement, death, or
Disability.
2.26 "Years of Service" means the Participant's period of service which is
credited as "Years of Service" under the Incentive Savings Plan.
III. ELIGIBILITY; PARTICIPATION LIMITS
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3.01 a) Eligibility to Participate. Participation in the Plan shall be
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limited to key employees of the Employers approved to participate by
the Committee. It is the intention of the Company that all
Participants satisfy the term a "select group of management or highly
compensated employees" as provided in Sections 201(2), 301(a)(3),
401(a)(1) and 4021(b)(6) of ERISA.
b) Acknowledgement of Eligibility and Election to Participate Each
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eligible employee shall annually acknowledge his or her eligibility
to participate in the Plan at such time and in such form as the
Committee may require or permit. An eligible employee may elect to
become a Participant with respect to a Plan Year by filing a properly
completed Agreement with the Committee no later than December 1st
(or such other date not later than December 31st as the Committee
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may permit) of the preceding calendar year. An eligible employee
shall become a Participant with respect to a Plan Year upon acceptance
of his or her Agreement by the Committee. An Agreement, once accepted
by the Committee, shall be irrevocable.
c) New Participants. An employee approved to participate by the
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Committee subsequent to January 1, 2000, shall be eligible to
participate in the Plan after satisfying the requirements of Section
3.01(a) and (b) and shall be bound by all the terms and conditions of
the Plan, provided, however, that his or her Agreement is filed no
later than thirty (30) days following notification by the Committee of
his or her eligibility to participate in the Plan and relates only to
Salary, Bonus, and/or LTIP Payment paid after the Agreement is filed
and becomes effective.
3.02 Deferral of Salary, Bonus, and/or LTIP Payment. A Participant may elect
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to defer between zero percent (0%) and fifty percent (50%) of his or her
Salary in ten percent (10%) increments during a Plan Year. In addition, a
Participant may elect to defer between zero percent (0%) and one hundred
percent (100%) of his or her Bonus payable during a Plan Year in ten
percent (10%) increments. In addition, a Participant may elect to defer
between zero percent (0%) and one hundred percent (100%) of his or her LTIP
Payment payable during a Plan Year in ten percent (10%) increments. At the
time of election, a Participant may elect to defer a different percentage
of his or her Salary, Bonus, and/or LTIP Payment for each Plan Year and may
also elect not to defer any portion of his or her Salary, Bonus, and/or
LTIP Payment in a Plan Year.
A Participant shall make an annual election for an upcoming Plan Year by
December 1st (or other such other date not later than December 31st as
the Committee may permit) of the year preceding the Plan year for which the
election is being made. Except as provided in Sections 4.04, 4.07 and 4.10,
any election made by a Participant shall be irrevocable with respect to
Salary, Bonus, and LTIP Payment applicable to the Plan Year. A Participant
who does not file an Agreement for a Plan Year may file an Agreement for
any subsequent Plan Year for which he or she is eligible to participate in
the Plan.
3.03 Suspension of Agreement to Defer. A Participant's Agreement to defer a
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percentage of his or her Salary, Bonus, and/or LTIP Payment shall be
suspended in the event that the Committee, in its sole discretion,
reasonably determines that a Participant ceases to meet the eligibility
requirements of the Plan.
3.04 Timing of Deferral Credits. The amount of Salary, Bonus, and/or LTIP
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Payment a Participant elects to defer in his or her Agreement shall cause
an equivalent reduction in the Participant's Salary, Bonus, and/or LTIP
Payment respectively. Deferrals shall be credited to the Participant's
Deferred Compensation Account throughout the Plan Year as the Participant
otherwise would have been paid the deferred portion of Salary, Bonus,
and/or LTIP Payment.
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3.05 Vesting. A Participant shall be one hundred percent (100%) vested in
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his or her Deferred Compensation Account equal to the amount of Salary
and/or Bonus the Participant deferred into his or her Deferred Compensation
Account and the investment gain or losses credited thereon. In the event a
contribution is credited to a Participant's Deferred Compensation Account
pursuant to Section 3.06 or 3.07, the contribution and the investment gain
or losses credited thereon shall vest in the same manner as under the
Incentive Savings Plan; provided, however, that any such amount shall
become fully vested upon a Change in Control.
3.06 Matching Contributions. If, during a Plan Year, a Participant is unable
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to receive the full Employer match under the Incentive Savings Plan due to
the limitations under Code Sections 402(g) or 401(a)(17) or other
limitation on the maximum amount of elective contributions permitted under
the terms of the Incentive Savings Plan, the Employer shall make matching
contributions on behalf of such Participant equal to the matching
percentage rate applicable to such Participant under the Incentive Savings
Plan with respect to such Participant's deferrals under this Plan which,
after taking into account deferrals under the Incentive Savings Plan, do
not exceed eight percent (8%)(or such other matching percentage limitation
set forth under the Incentive Savings Plan from time to time) of his or her
Salary, Bonus, and/or LTIP Payment. The Employer matching contributions
under this Plan shall be credited to the Participant's Deferred
Compensation Account at the same time as the Employer matching
contributions would have been made to the Incentive Savings Plan, provided,
however, that there shall be no duplication of benefits by reason of the
provisions of this Section 3.06 and Section 3.07.
3.07 Employee Benefit Plan Equivalent. If a Participant is a participant
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under the Incentive Savings Plan, the amount of Salary, Bonus, and/or LTIP
Payment deferred under this Plan shall not be considered for purposes of
calculating benefits under the Incentive Savings Plan unless permitted by
law. To the extent that a Participant's benefit under the Incentive
Savings Plan is reduced by reason of deferrals under this Plan, an amount
equal to the additional benefits he or she would have received under the
Incentive Savings Plan based upon the deferrals (and disregarding for this
purpose any benefit and compensation limitations under Sections 401(a)(17),
402(g) and 415 of the Code) shall be determined and paid in the same manner
and at the same time as other benefits payable under this Plan.
3.08 Determination of Account. Each Participant's Deferred Compensation
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Account as of each Determination Date shall consist of the balance of the
Participant's Deferred Compensation Account as of the immediately preceding
Determination Date adjusted for:
. additional deferrals pursuant to Section 3.02,
. Employer contributions (if any) pursuant to Sections 3.06 and 3.07,
. distributions (if any); and
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. the appropriate investment earnings and gains and/or losses and
expenses pursuant to Section 3.09.
All adjustments and earnings related thereto, will be determined on a daily
basis.
3.09 Deferred Compensation Account Investment Options. The Committee shall
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designate from time to time one or more investment options in which
Deferred Compensation Accounts may be deemed invested. A Participant or
Beneficiary shall allocate his or her Deferred Compensation Account among
the deemed investment options by filing with the Committee a Deferral
Allocation Election Form. A Participant may elect to allocate his or her
Deferred Compensation Account in five percent (5%) increments among as many
of the investment options which are offered under the Plan.
Any such investment allocation election shall be made initially on the
Deferral Allocation Election Form and shall be subject to such rules as the
Committee may prescribe, including, without limitation, rules concerning
the manner of making deferral allocation elections and the frequency and
timing of changing such deferral allocation elections.
The Committee shall have the sole discretion to determine the number of
investment options to be designated hereunder and the nature of the options
and may change or eliminate the investment options provided hereunder from
time to time. For each investment option, the Committee shall, in its sole
discretion, select a mutual fund, a life insurance subaccount, an
investment index, or shall create a phantom portfolio of such investments
as it deems appropriate, to constitute the investment option. The
Employers may, but are under no obligation to, acquire any investment or
otherwise set aside assets for the deemed investment of Deferred
Compensation Accounts hereunder.
The Committee shall determine the amount and rate of investment gains or losses
with respect to any such investment option for any period, and may take into
account deemed expenses which would be incurred if actual investments were made.
3.10 Change of Investment Election. A Participant may elect daily to change
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the manner in which his or her current Deferred Compensation Account and
his or her future deferrals are deemed invested among the then-available
investment options, in accordance with procedures prescribed by the
Committee.
IV. DISTRIBUTIONS
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4.01 Distribution on Retirement. Upon a Participant's Termination of Service
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on or after a Retirement Date, distribution of the Participant's Deferred
Compensation Account, determined under Section 3.08, as of the
Determination Date coincident with or next following such Retirement Date,
shall be made or commence as soon as practicable, but
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in any event within ninety (90) days following the Participant's
Termination of Service on or after his or her Retirement Date. The
distribution shall be made as designated by the Participant in his or her
Retirement Payout Election Form, subject to Section 4.05. In the event a
distribution is made pursuant to this Section 4.01, the Participant shall
immediately cease to be eligible for any other benefit provided under this
Plan.
4.02 Distribution on Death. Upon the death of a Participant prior to the
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distribution of all of his or her Deferred Compensation Account,
distribution of the unpaid balance of the Deferred Compensation Account
shall be made or continue to be made to such Participant's Beneficiary. If
the distribution of the Participant's Deferred Compensation Account has not
yet commenced as of the date of death, distribution to the Beneficiary
shall be made or commence as soon as practicable and in any event within
ninety (90) days following the Participant's death. The method of
distribution shall be as designated by the Participant in his or her
Retirement Payout Election Form, subject to Section 4.05.
4.03 Distribution on Termination of Service. Unless otherwise directed by the
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Committee, upon the Termination of Service of a Participant prior to his or
her Retirement Date for reasons other than death or Disability,
distribution of the Participant's Deferred Compensation Account shall be
made as soon as practicable and in any event within ninety (90) days after
such Termination of Service, in a single lump-sum, notwithstanding the
provisions of Section 4.05. Upon a Termination of Service prior to his or
her Retirement Date or death or Disability, the Participant shall
immediately cease to be eligible for any other benefit provided under this
Plan.
4.04 Disability Benefit. In the event a Participant incurs a Disability which
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first manifests itself after the Participant's initial participation in the
Plan but prior to his or her Retirement Date, distribution of the
Participant's Deferred Compensation Account shall be made or commence as
soon as practicable and in any event within ninety (90) days following
receipt of notice by the Committee of the Participant's Disability. The
distributions shall be made as designated by the Participant in his or her
Retirement Payout Election Form subject to Section 4.05. A Participant may
petition the Committee requesting an acceleration of benefit payments due
to be paid to the Participant. The Committee may, but is not required to,
grant the Participant's request. Such benefit shall be payable until the
earliest of the following events: (i) there is no longer any balance in
the Participant's Deferred Compensation Account; (ii) the Participant
ceases to be disabled and resumes employment with the Company; or (iii) the
Participant dies. Disability benefits shall be treated as distributions
from a Participant's Deferred Compensation Account.
If a Disability occurs during the period elected in the Agreement, the
disabled Participant's Agreement shall be suspended, and further deferrals
shall not be required during the period of Disability.
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4.05 Method of Timing of Distribution.
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a) Election in Agreement. Except in the case of a Termination of
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Service prior to a Participant's Retirement Date for reasons other
than death or Disability, distribution of the Participant's Deferred
Compensation Account shall be made in a lump-sum or installments, as
elected by the Participant in his or her Retirement Payout Election
Form. Installment payments shall be made monthly over a period of
three (3) to fifteen (15) years, as elected by the Participant in his
or her Retirement Payout Election Form. The amount of each monthly
installment shall be determined annually and shall be equal to the
quotient obtained by dividing the balance of the Participant's
Deferred Compensation Account being distributed in installments by the
number of installments remaining to be paid, including the current
installment. Notwithstanding the above calculation, as elected by the
Participant in his or her Retirement Payout Election Form, at the time
a Participant is scheduled to receive his or her final installment
payment, the Participant shall be paid his or her remaining Deferred
Compensation Account balance.
b) Election to Change Method of Distribution. A Participant may, by
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written election filed with the Committee at least thirteen (13)
months prior to the distribution or commencement of distribution of a
Deferred Compensation Account, change the method of distribution
elected with respect to a Deferred Compensation Account to any other
method permitted under Section 4.05(a). After a Participant's death,
the Participant's Beneficiary may, prior to the distribution or
commencement of distribution of the Participant's Deferred
Compensation Account, petition the Committee requesting an
acceleration of benefit payments otherwise due to be paid to the
Beneficiary. The Committee may, but is not required to, grant the
Beneficiary's request.
c) Small Benefit Cash-Out. Notwithstanding any payment method elected
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by a Participant or Beneficiary, the Committee may, in its sole
discretion, direct payment in a lump-sum of any Deferred Compensation
Account with a balance less than $5,000.
4.06 Interim Distribution. At the time a Participant executes an Agreement,
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he or she may elect to receive an interim distribution equal to the
principal amount deferred. In the event the value of the Participant's
Deferred Compensation Account as of the time of the interim distribution is
less than the amount otherwise payable, the Participant shall be paid his
or her Deferred Compensation Account. The interim distribution election
shall specify the year ("Distribution Year") in which such interim
distribution shall be made, which shall be no less than four (4) Plan Years
after the Plan Year in which the deferral was originally made. Provided
the Participant has not had an earlier Termination of Service, Disability
or death, the interim distribution shall be made in a lump-sum. The
interim distribution shall be made or commence on the first pay period of
January
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following the interim distribution election. Once a Participant elects to
receive an interim distribution, the election shall be irrevocable. Any
interim distribution paid shall be deemed a distribution, and shall be
deducted from the Participant's Deferred Compensation Account. A separate
interim distribution election shall be made for each Plan Year in which
amounts are deferred.
If a Participant is not currently deferring any percentage of his or her
Salary, Bonus, and/or LTIP Payment pursuant to the terms of this Plan at
the time he or she is scheduled to receive an interim distribution, and his
or her remaining Deferred Compensation Account balance after the interim
distribution was paid would be less than $5,000, the Participant will be
paid his or her total Deferred Compensation Account balance at the time the
interim distribution is due to be paid.
4.07 Hardship Distributions; Waiver of Deferral. In the event that the
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Committee, upon written petition of the Participant or his or her
Beneficiary, determines in its sole discretion, that the Participant or his
or her Beneficiary has suffered an unforeseeable financial emergency, his
Employer shall pay to the Participant or his or her Beneficiary as soon as
reasonably practicable following such determination, an amount, not in
excess of the Participant's Deferred Compensation Account, necessary to
satisfy the emergency. For purposes of this Plan, an unforeseeable
financial emergency is an unanticipated emergency that is caused by an
event beyond the control of the Participant or Beneficiary and that would
result in severe financial hardship to the individual if the emergency
distribution were not permitted, as may result from illness, casualty loss
or sudden financial reversal. Financial needs arising from foreseeable
events, such as the purchase of a residence or education expenses for
children, shall not be considered a financial emergency. A Participant who
receives a hardship distribution pursuant to this Section 4.07, may also be
required to cease making deferrals, pursuant to this Plan, for the
remainder of the Plan Year which begins on the date the hardship
distribution is made in addition to the subsequent Plan Year, as determined
by the Committee. A Participant who is required to cease making deferrals
due to the receipt of a hardship distribution, shall be permitted to begin
making deferrals into this Plan by filing a new Agreement with the
Committee which new Agreement shall become effective with respect to the
designated subsequent Plan Year upon acceptance of the new Agreement by the
Committee. The new Agreement must be filed with the Committee in
accordance with the provisions of Section 3.01.
4.08 Withholding; Employment Taxes. To the extent required by the law in
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effect at the time payments are made, the Employer shall withhold any taxes
required to be withheld by the federal, or any state or local, government.
4.09 Commencement of Payments. Unless otherwise provided, payments under this
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Plan shall commence as soon as practicable following the Participant's
eligibility for payment, but in no event later than ninety (90) days
following receipt of notice by the Committee of an
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event which entitles a Participant or a Beneficiary to payments under this
Plan, or at such other date as may be determined by the Committee in its
sole discretion.
4.10 Change in Control Distribution Election. Notwithstanding any other
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provision of this Plan:
a) Any Participant may, at any time during the twenty-four (24) month
period immediately following a Change in Control, elect to receive an
immediate lump- sum payment of the balance of his or her Deferred
Compensation Account, reduced by a penalty equal to ten percent (10%)
of the value of the Participant's remaining Deferred Compensation
Account. The ten percent (10%) penalty amount shall be permanently
forfeited. In the event no such request is made by a Participant, the
Participant's Deferred Compensation Account shall be paid in
accordance with the provisions of this Article IV. Any Participant who
elects to receive an immediate lump-sum payment pursuant to this
Section 4.10, shall not be eligible to make any additional deferrals
into this Plan for the remainder of the Plan Year in which the lump-
sum payment is received, in addition to the subsequent Plan Year.
b) Any retired Participant or any Beneficiary of a deceased Participant
may, at any time during the twenty-four (24) month period immediately
following a Change in Control, elect to receive an immediate lump-sum
payment of the balance of his or her Deferred Compensation Account,
reduced by a penalty equal to five percent (5%) of the value of the
retired Participant's or Beneficiary's remaining Deferred Compensation
Account. The five percent (5%) penalty amount shall be permanently
forfeited. In the event no such request is made by a retired
Participant or Beneficiary, the Deferred Compensation Account shall be
paid in accordance with the provisions of this Article IV.
4.11 Recipients of Payments: Designation of Beneficiary. All payments to be
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made by an Employer under the Plan shall be paid to the Participant during
his or her lifetime, provided that if the Participant dies prior to the
commencement or completion of such payments, then all subsequent payments
under the Plan shall be made by the Employer to the Beneficiary determined
in accordance with this Section 4.11. The Participant may designate a
Beneficiary by filing a written notice of such designation with the
Committee in such form as the Committee requires and may include a
contingent Beneficiary. The Participant may from time to time change the
designated Beneficiary by filing a new designation in writing with the
Committee. If no designation is in effect at the time any benefits payable
under this Plan become due, the Beneficiary shall be the Beneficiary
designated by the Participant under the Incentive Savings Plan, if any, or
if no such designation exists under the Incentive Savings Plan, the
Participant's estate.
4.12 Distributions in Cash. All distributions of Deferred Compensation
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Accounts shall be paid in United States dollars.
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V. CLAIM FOR BENEFITS PROCEDURE
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5.01 Claim for Benefits. Any claim for benefits under the Plan shall be made
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in writing to the Committee. If such claim for benefits is wholly or
partially denied by the Committee, the Committee shall, within a reasonable
period of time, but not later than sixty (60) days after receipt of the
claim, notify the claimant of the denial of the claim. Such notice of
denial shall be in writing and shall contain:
a) the specific reason or reasons for the denial of the claim;
b) a reference to the relevant Plan provisions upon which the denial is
based;
c) a description of any additional material or information necessary for
the claimant to perfect the claim, together with an explanation of why
such material or information is necessary; and
d) an explanation of the Plan's claim review procedure.
5.02 Request for Review of a Denial of a Claim for Benefits. Upon the receipt
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by the claimant of written notice of the denial of a claim, the claimant
may file a written request within sixty (60) days to the Committee
requesting a review of the denial of the claim, which review shall include
a hearing if deemed necessary by the Committee. In connection with the
claimant's appeal of the denial of his or her claim, he or she may review
relevant documents and may submit issues and comments in writing. To
provide for fair review and a full record, the claimant must submit in
writing all facts, reasons and arguments in support of his or her position
within the time allowed for filing a written request for review. All issues
and matters not raised for review will be deemed waived by the claimant.
5.03 Decision Upon Review of a Denial of a Claim for Benefits. The Committee
--------------------------------------------------------
shall render a decision on the claim review promptly, but no more than
sixty (60) days after the receipt of the claimant's request for review,
unless special circumstances (such as the need to hold a hearing) require
an extension of time, in which case the sixty (60) day period shall be
extended to one hundred-twenty (120) days. Such decision shall:
a) include specific reasons for the decision;
b) be written in a manner calculated to be understood by the claimant;
and
c) contain specific references to the relevant Plan provisions upon which
the decision is based.
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The decision of the Committee shall be final and binding in all respects on
the Company, the claimant and any other person claiming an interest in the
Plan through or on behalf of the claimant. No litigation may be commenced
by or on behalf of a claimant with respect to this Plan until after the
claim and review process described in this Article V has been exhausted.
Judicial review of Committee action shall be limited to whether the
Committee acted in an arbitrary and capricious manner.
VI. ADMINISTRATION
--------------
6.01 Plan Committee. The Company, by action of its Board of Directors, shall
--------------
appoint a Committee of at least three persons to administer the Plan as
herein set forth. The Committee may assign duties to an officer or other
employees of an Employer, and may delegate such duties as it sees fit. A
member of the Committee who is also a Participant shall not be involved in
the decisions of the Committee regarding any determination of any specific
claim for benefit with respect to himself or herself.
6.02 General Rights, Powers and Duties of Committee. The Committee shall be
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responsible for the management, operation and administration of the Plan.
In addition to any powers, rights and duties set forth elsewhere in the
Plan, it shall have complete discretion to exercise the following powers
and duties.
a) Adopt such rules and regulations consistent with the provisions of the
Plan as it deems necessary for the proper and efficient administration
of the Plan.
b) Administer the Plan in accordance with its terms and any rules and
regulations it establishes.
c) Maintain records concerning the Plan sufficient to prepare reports,
returns, and other information required by the Plan or by law.
d) Construe and interpret the Plan, and to resolve all questions arising
under the Plan.
e) Direct the Employers to pay benefits under the Plan, and to give such
other directions and instructions as may be necessary for the proper
administration of the Plan.
f) Employ or retain agents, attorneys, actuaries, accountants or other
persons, who may also be Participants in the Plan or be employed by or
represent the Company, as it deems necessary for the effective
exercise of its duties, and may delegate to such persons any power and
duties, both ministerial and discretionary, as it may deem necessary
and appropriate, and the Committee shall be responsible for the
prudent monitoring of their performance.
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g) Be responsible for the preparation, filing, and disclosure on behalf
of the Plan of such documents and reports as are required by any
applicable federal or state law.
6.03 Information to be Furnished to Committee. The records of the Company
----------------------------------------
shall be determinative of each Participant's period of employment,
Termination of Service and the reason therefore, Disability, leave of
absence, reemployment, personal data, Salary, Bonus, and/or LTIP Payment.
Participants and their Beneficiaries shall furnish to the Committee such
evidence, data or information, and execute such documents as the Committee
requests.
6.04 Indemnification. No member of the Committee shall be liable to any
---------------
person for any action taken or omitted in connection with the
administration of this Plan unless attributable to his or her own fraud or
willful misconduct (or that of the Committee, in which he or she
participated); nor shall any Employer be liable to any person for any such
action unless attributable to fraud or willful misconduct on the part of a
director, officer or employee of an Employer. This indemnification shall
not duplicate, but may supplement, any coverage available under any
applicable insurance coverage.
VII. AMENDMENT AND TERMINATION
-------------------------
7.01 Amendment. The Plan may be amended in whole or in part by a written
---------
instrument adopted by the Company at any time. Notice of any material
amendment shall be given in writing to the Committee and to each
Participant and each Beneficiary. No amendment shall retroactively
decrease either the balance of a Participant's Deferred Compensation
Account or a Participant's interest in his or her Deferred Compensation
Account as existing immediately prior to the later of the effective date or
adoption date of such amendment.
7.02 Company's Right to Terminate. The Company reserves the sole right to
----------------------------
terminate, by action of the Committee, the Plan and/or the Agreement
pertaining to a Participant at any time prior to the commencement of
payment of his or her benefits. In the event of any such termination, a
Participant shall be deemed to have incurred a Termination of Service, and
his or her Deferred Compensation Account shall be paid in the manner
provided in Section 4.03.
7.03 Special Termination. Any other provision of the Plan to the contrary
-------------------
notwithstanding, the Plan shall terminate if:
The Plan is held to be ERISA Funded or Tax Funded by a federal court, and
appeals from that holding are no longer timely or have been exhausted. The
Company may terminate the Plan if it determines, based on a legal opinion
which is satisfactory to the Company, that either judicial authority or the
opinion of the U.S. Department of Labor, Treasury Department or Internal
Revenue Service (as expressed in proposed or final regulations,
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advisory opinions or rulings, or similar administrative announcements)
creates a significant risk that the Plan will be held to be ERISA Funded or
Tax Funded, and failure to so amend the Plan could subject any Employer or
the Participants to material penalties. Upon any such termination, the
Company may:
a) Transfer the rights and obligations of the Employer and some or all
Participants as determined by the Company in its discretion, to a new
plan established by the Company, which is not deemed to be ERISA
Funded or Tax Funded, but which is substantially similar in all other
respect to this Plan, if the Company determines that it is possible or
desirable to establish such a Plan;
b) If the Company, in its sole discretion, determines that it is not
possible or desirable to establish the Plan in (a) above, for some or
all Participants, such Participants shall be paid a lump-sum equal to
the value of his or her Deferred Compensation Account;
c) Pay to a Participant a lump-sum benefit equal to the value of his or
her Deferred Compensation Account to the extent that a federal court
has held that the interest of the Participant in the Plan is
includable in the gross income of the Participant for federal income
tax purposes prior to actual payment of Plan benefits; or
d) Pay to a Participant a lump-sum benefit equal to the value of his or
her Deferred Compensation Account if, based on a legal opinion
satisfactory to the Company, there is a significant risk that such
Participant will be determined not to be part of a "select group of
management or highly compensated employees" for purposes of ERISA.
A lump-sum payment to be made in accordance with this Section shall be
subject to the provisions of Section 4.09.
VIII. MISCELLANEOUS
-------------
8.01 Separation of Plan: No Implied Rights. Neither the establishment of the
--------------------------------------
Plan nor any amendment thereof shall be construed as giving any
Participant, Beneficiary, or any other person any legal or equitable right
unless such right shall be specifically provided for in the Plan or
conferred by specific action of the Company in accordance with the terms
and provisions of the Plan. Except as expressly provided in this Plan,
neither the Company nor any other Employer shall be required or be liable
to make any payment under this Plan.
8.02 No Right to Employer Assets. Neither the Participant nor any other
---------------------------
person shall acquire by reason of the Plan any right in or title to any
assets, funds or property of any Employer whatsoever, including, without
limiting the generality of the foregoing, any specific
15
funds, assets or other property which an Employer, in its sole discretion,
may set aside in anticipation of a liability hereunder. Any benefits which
become payable hereunder shall be paid from the general assets of the
Employers. The Participant and his or her Beneficiary shall have only a
contractual right to the amounts, if any, payable hereunder, unsecured by
any asset of the Employers. Nothing contained in the Plan constitutes a
guarantee by the Company that the assets of any Employer shall be
sufficient to pay any benefits to any person.
8.03 No Employment Rights. Nothing herein shall constitute a contract of
--------------------
employment or of continuing service or in any manner obligate any Employer
to continue the services of the Participant, or obligate the Participant to
continue in the service of his or her Employer, or as a limitation of the
right of any Employer to discharge any of its employees, with or without
cause. Nothing herein shall be construed as fixing or regulating the
Salary, Bonus, and/or LTIP Payment payable to the Participant.
8.04 Offset. If, at the time payments or installments of payments are to be
------
made hereunder, the Participant or Beneficiary is indebted or obligated to
any Employer, then the payments remaining to be made to the Participant or
the Beneficiary may, at the discretion of the Employer, be reduced by the
amount of such indebtedness or obligation. However, an election by the
Employer not to reduce any such payment or payments shall not constitute a
waiver of its claim, or prohibit or otherwise impair the Employer's right
to offset future payments for such indebtedness or obligation.
8.05 Protective Provisions. In order to facilitate the payment of benefits
---------------------
hereunder, each employee designated eligible to participate in the Plan,
shall cooperate with the Company by furnishing any and all information
requested by the Company, including taking such physical examinations as
the Company may deem necessary, and taking such other actions as may be
requested by the Company. If an employee refuses to cooperate, he or she
shall not become a Participant in the Plan and the Company shall have no
further obligation to him or her under the Plan. In the event a
Participant has a balance in his or her Deferred Compensation Account, the
Participant or his or her Beneficiary shall receive a benefit equal to his
or her Deferred Compensation Account determined pursuant to Section 3.08
and paid in accordance with Section 4.03.
8.06 Non-assignability. Neither the Participant nor any other person shall
-----------------
have any voluntary or involuntary right to commute, sell, assign, pledge,
anticipate, mortgage or otherwise encumber, transfer, hypothecate, or
convey in advance of actual receipt the amounts, if any, payable hereunder,
or any part thereof, which are expressly declared to be unassignable and
non-transferable. No part of the amounts payable shall be, prior to actual
payment, subject to seizure or sequestration for the payment of any debts,
judgments, alimony or separate maintenance owed by the Participant or any
other person, or be transferable by operation of law in the event of the
Participant's or any other person's bankruptcy or insolvency.
16
8.07 Gender and Number Wherever appropriate herein, the masculine may mean
-----------------
feminine and the singular may mean the plural, or vice versa.
8.08 Notice. Any notice required or permitted to be given under the Plan
------
shall be sufficient if in writing and hand delivered, or sent by registered
or certified mail, and if given to the Company, delivered to the principal
office of the Company, directed to the attention of the Committee. Such
notice shall be deemed given as of the date of delivery, or, if delivery is
made by mail, as of the date shown on the postmark or the receipt for
registration or certification.
8.09 Governing Laws. The Plan shall be construed and administered according to
--------------
the laws of the State of Ohio to the extent not pre-empted by federal law.
8.10 Capital Accumulation Plan Trust. The Company may establish a Trust with
-------------------------------
independent trustees, and shall comply with the terms of the Trust. The
Company may transfer or cause to be transferred to the trustees an amount
of cash, marketable securities, or other property acceptable to the
trustees ("Trust Property") equal in value to all or a portion of the
amount necessary, calculated in accordance with the terms of the Trust, to
pay the Employers' obligations under the Plan (the "Funding Amount"), and
may make or cause to be made additional transfers to the trustees as may be
necessary in order to maintain the Funding Amount. Trust Property so
transferred shall be held, managed, and disbursed by the trustees in
accordance with the terms of the Trust. To the extent that Trust Property
shall be used to pay an Employer's obligations under the Plan, such
payments shall discharge obligations of the Employer; however, the Employer
shall continue to be liable for amounts not paid by the Trust. Trust
Property will nevertheless be subject to claims of the Employer's creditors
in the event of bankruptcy or insolvency of the Employer, and the
Participant's rights under the Plan and Trust shall at all times be subject
to the provisions of Section 8.02.
IN WITNESS WHEREOF, the Company has adopted the Oglebay Norton Company Capital
Accumulation Plan effective January 1, 2000.
OGLEBAY NORTON COMPANY
By Ronald J. Compiseno
-----------------------------
Its: Vice President - Human Resources
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