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EXHIBIT 10.03
ALUMAX INC.
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DEFERRED COMPENSATION PLAN
AS AMENDED ON OCTOBER 3, 1996
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ALUMAX INC.
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DEFERRED COMPENSATION PLAN
AS AMENDED ON OCTOBER 3, 1996
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1. Purposes ..................................................... 1
2. Definitions .................................................. 1
3. Administration ............................................... 2
4. Participation ................................................ 2
5. Deferrals .................................................... 2
6. Deferral Accounts ............................................ 3
7. Deferral of Certain Stock-Denominated Awards: Rabbi Trusts .. 4
8. Settlement of Deferral Accounts .............................. 5
9. Provisions Relating to Section 16 of the Exchange Act
and Section 162(m) of the Code ............................... 6
10. Statements ................................................... 7
11. Sources of Stock: Limitation on Amount of
Stock-Denominated Deferrals .................................. 7
12. Amendment/Termination ........................................ 7
13. General Provisions ........................................... 7
14. Effective Date ............................................... 8
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ALUMAX INC.
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DEFERRED COMPENSATION PLAN
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1. PURPOSES. The purposes of this Deferred Compensation Plan (the "Plan")
are to provide certain highly compensated employees of Alumax Inc., (the
"Company") and its subsidiaries with the opportunity to elect to defer receipt
of specified portions of cash compensation and stock awards, and to have the
deferred amounts treated as if invested in specified investment vehicles. The
Plan is also intended to specify terms and conditions for deferral of awards
granted under the Company's 1993 Long Term Incentive Plan, 1993 Stock Option
Subplan for Key Executives, 1993 Annual Incentive Plan, employment agreements
and other compensation arrangements.
2. DEFINITIONS. In addition to the terms defined in Section 1 above, the
following terms used in the Plan shall have the meanings set forth below:
(a) "Administrator" shall mean the Secretary of the Company or other
executives to whom the Committee has delegated the authority to take action
under the Plan, except as may be otherwise required under Section 9.
(b) "Beneficiary" shall mean any person (which may include trusts and is
not limited to one person) who has been designated by the Participant in his or
her most recent written beneficiary designation filed with the Company to
receive the benefits specified under the Plan in the event of the Participant's
death. If no Beneficiary has been designated who survives the Participant's
death, then Beneficiary means any person(s) entitled by will or the laws of
descent and distribution to receive such benefits.
(c) "Change in Control" shall have the same meaning as defined in
Section 8(a)(ii) of the Company's 1993 Long Term Incentive Plan.
(d) "Code" shall mean the Internal Revenue Code of 1986, as amended.
References to any provision of the Code or regulation (including a proposed
regulation) thereunder shall include any successor provisions or regulations.
(e) "Committee" shall mean the Human Resources and Compensation
Committee of the Board of Directors of the Company or a subcommittee thereof, or
such other Board committee as may be designated by the Board to administer the
Plan; provided that the Committee shall at all times be compirsed solely of two
or more outside directors satisfying the requirements of Section 162 (m) (4) (C)
(i) of the Code.
(f) "Deferral Account" shall mean the account or subaccount established
and maintained by the Company for specified deferrals by a Participant, as
described in Sections 6(a) and 7(a). Deferral Accounts will be maintained
solely as bookkeeping entries by the Company to evidence unfunded obligations of
the Company.
(g) "Disability" shall mean termination of employment due to the
Participant's inability to perform the duties of his or her own occupation due
to physical or mental incapacity as determined by the Committee or
Administrator.
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(h) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended. References to any provision of the Exchange Act or rule thereunder
include any successor provisions or rules.
(i) "Participant" shall mean any full-time salaried employee of the
Company or any subsidiary (i) who is either a member of the Executive Group of
the Company or otherwise selected by the Committee or Administrator, (ii) who
will be eligible to become a Participant in the Plan if such employee receives
or is to receive compensation or awards permitted to be deferred under the Plan,
and (iii) who participates or makes an election to participate in the Plan.
(j) "Stock" shall mean Alumax Inc. Common Stock, $0.01 par value.
(k) "Valuation Date" shall mean the close of business on the last
business day of each calendar quarter; provided, however, that in the case of
termination of employment for reasons other than normal retirement or approved
early retirement under the applicable Company or subsidiary retirement plan,
death, or Disability, the Valuation Date means the close of business on the last
business day of the month in which employment terminates, and in the case of a
Change in Control of the Company, the Valuation Date shall be the date of such
Change in Control.
3. ADMINISTRATION.
(a) Committee Authority. The Committee and the Administrator shall
administer the Plan in accordance with its terms, and shall have all powers
necessary to accomplish such purpose, including the power and authority to
construe and interpret the Plan, to define the terms used herein, to prescribe,
amend and rescind rules and regulations, agreements, forms, and notices relating
to the administration of the Plan, and to make all other determinations
necessary or advisable for the administration of the Plan. Any actions of the
Committee or the Administrator with respect to the Plan shall be conclusive and
binding upon all persons interested in the Plan, except that any action of the
Administrator will not be binding on the Committee. The Committee and
Administrator may each appoint agents and delegate thereto powers and duties
under the Plan, except as otherwise limited by the Plan.
(b) Limitation of Liability. Each member of the Committee and the
Administrator shall be entitled to, in good faith, rely or act upon any report
or other information furnished to him or her by any officer or other employee of
the Company or any subsidiary, the Company's independent certified public
accountants, or any executive compensation consultant, legal counsel, or other
professional retained by the Company to assist in the administration of the
Plan. Neither a member of the Committee, the Administrator, nor any officer or
employee of the Company or a subsidiary acting on behalf of the Committee or
Administrator shall be personally liable for any action, determination, or
interpretation taken or made in good faith with respect to the Plan, and such
persons shall, to the extent permitted by law, be fully indemnified and
protected by the Company with respect to any such action, determination, or
interpretation.
4. PARTICIPATION. Participation in the Plan is voluntary. The
Administrator will notify each employee of his or her eligibility to participate
in the Plan not later than 30 days (or such lesser period as may be practicable
in the circumstances) prior to any deadline for filing an election form.
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5. DEFERRALS. A Participant may elect to defer compensation or awards
which may be in the form of cash, Stock, Stock-denominated awards or other
property to be received from the Company or a subsidiary, including salary,
annual incentive award, long term award, shares received on stock option
exercise and compensation payable under other plans and programs, employment
agreements or other arrangements, or otherwise, as may be provided under the
terms of such plans, programs and arrangements or designated by the Committee;
provided, however, that a Participant may defer, with respect to a given year,
receipt of only that portion of the Participant's salary and annual incentive
award (or bonus) that exceeds the FICA maximum taxable wage base plus 1.45% of
all other wages of such Participant. In addition to such limitation, and any
terms and conditions of deferral set forth under plans, programs or arrangements
from which receipt of compensation or awards is deferred, the Committee may
impose limitations on the amounts permitted to be deferred and other terms and
conditions on deferrals under the Plan. Any such limitations, and other terms
and conditions of deferral, shall be set forth in the rules relating to the Plan
or election forms, other forms, or instructions published by the Committee
and/or the Administrator. The Committee and/or Administrator is authorized to
permit, in its discretion, further elective deferrals of amounts previously
deferred under this Plan. In addition, the Committee may mandate deferral of
payment in accordance with the Plan of all or a portion of the compensation or
awards to be received under plans or programs of the Company.
(a) Elections. Once an election form, properly completed, is received
by the Company, the elections of the Participant shall be irrevocable; provided,
however, that the Administrator may, in its discretion, permit a Participant to
change elections relating to a Deferral Account by filing a later election form.
(b) Date of Election. An election to defer compensation or awards
hereunder must be received by the Administrator prior to the date specified by
the Administrator. Under no circumstances may a Participant defer compensation
or awards to which the Participant has attained, at the time of deferral, a
legally enforceable right to current receipt of such compensation or awards.
6. DEFERRAL ACCOUNTS. The following provisions will apply to Deferral
Accounts other than those established under Section 7:
(a) Establishment; Crediting of Amounts Deferred. One or more Deferral
Accounts will be established for each Participant, as determined by the
Administrator. The amount of compensation or awards deferred with respect to
each Deferral Account will be credited to such Account as of the date on which
such amounts would have been paid to the Participant but for the Participant's
election to defer receipt hereunder. The amounts of hypothetical income and
appreciation and depreciation in value of such account will be credited and
debited to such Account from time to time. Unless otherwise determined by the
Administrator, cash amounts credited to a Deferral Account shall be deemed
invested in a hypothetical investment as of the date of deferral.
(b) Hypothetical Investment Vehicles. Subject to the provisions of
Sections 6(c) and 9, amounts credited to a Deferral Account shall be deemed to
be invested, at the Participant's direction, in one or more investment vehicles
as may be specified from time to time by the Administrator. The Administrator
may change or discontinue any hypothetical investment vehicle available under
the Plan in its discretion; provided, however, that each affected Participant is
given the opportunity, without limiting or otherwise impairing any other right
of such Participant regarding changes in investment directions, to redirect the
allocation of his or her Deferral Account deemed
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invested in the discontinued investment vehicle among the other hypothetical
investment vehicles, including any replacement vehicle.
(c) Allocation and Reallocation of Hypothetical Investments. A
Participant may allocate amounts credited to his or her Deferral Account to one
or more of the hypothetical investment vehicles authorized under the Plan.
Subject to the rules established by the Administrator, Participants may
reallocate amounts credited to his or her Deferral Account as of the Valuation
Date following the Participant's election to one or more of such hypothetical
investment vehicles, by filing with the Administrator a notice, in such form as
may be specified by the Administrator, not later than the 15th of the month
preceding such Valuation Date. The Committee or Administrator may, in its
discretion, restrict allocation into or reallocation by specified Participants
into or out of specified investment vehicles or specify minimum amounts that may
be allocated or reallocated by Participants.
(d) Rabbi Trusts. The Committee may, in its discretion, establish rabbi
trusts (including sub-accounts under such rabbi trusts), and deposit therein
amounts of cash, Stock, or other property not exceeding the amount of the
Company's obligations with respect to a Participant's Deferral Account
established under this Section 6. In such case, the amounts of hypothetical
income and appreciation and depreciation in value of such Deferral Account shall
be equal to the actual income on, and appreciation and depreciation of, the
assets in such rabbi trusts, including charges against such assets to reflect
all or a portion, if any, as specified by the Committee, of the Company's costs
resulting from payment of taxes on the income on and realized appreciation of
trust assets prior to the time the Company is entitled to a tax deduction for
payment of the Deferral Account. Other provisions of this Section 6
notwithstanding, the timing of allocations and reallocations of assets in such a
Deferral Account, and the investment vehicles available with respect to such
Deferral Account, may be varied to reflect the timing of actual investments of
the assets of such rabbi trust and the actual investments available to such
rabbi trust.
7. DEFERRAL OF CERTAIN STOCK-DENOMINATED AWARDS: RABBI TRUSTS.
(a) Establishment. Subject to any terms and conditions imposed by the
Committee, Participants may elect to defer, under the Plan, awards denominated
in Stock specified by the Committee or Administrator. In connection with such
deferral of a Stock-denominated award, a Deferral Account shall be established
for such Participant and a rabbi trust (including sub-accounts under such rabbi
trust) will also be established, on terms determined by the Committee, into
which the Company shall deposit a number of whole shares of Stock equal to the
number of shares subject to such deferred award (and cash in lieu of any
fractional share). In such case, the amounts of hypothetical income and
appreciation and depreciation in value of such Deferral Account shall be equal
to the actual income on, and appreciation and depreciation of, the assets in
such rabbi trust, including charges against such assets to reflect all or a
portion, if any, as specified by the Committee, of the Company's costs resulting
from payment of taxes on the income on and realized appreciation of trust assets
prior to the time the Company is entitled to a tax deduction for payment of the
Deferral Account.
(b) Investment of Rabbi Trust Assets. The trustee of each rabbi trust,
which shall be a party unaffiliated with the Company, shall be authorized, upon
written instructions received from the Administrator or investment manager
appointed by the Administrator, to invest and reinvest the assets of the trust
in accordance with the trust agreement, including the disposition of such Stock
and reinvestment of the proceeds in one or more investment vehicles designated
by
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the Administrator; provided that no such disposition shall be made until the
date that the shares of Stock subject to the deferred award would otherwise
have been transferable by the Participant. In no event shall a Participant who
is then subject to Section 16(a) of the Exchange Act have the right to direct
investments of amounts credited to such Deferral Account.
(c) Settlement. Subject to Section 8, the Participant shall be entitled
to receive, in settlement of a Deferral Account established under this Section
7, a cash payment in an amount equal to the value of the assets of such
Deferral Account as of the applicable Valuation Date; provided, however, that
the trustee may, at the direction of the Administrator, distribute assets of
the rabbi trust (other than a distribution of Stock to a Participant then
subject to Section 16(a) of the Exchange Act) to the Participant in settlement
of the Company's obligations to the Participant under the Deferral Account if
such distribution, and the authorization thereof, does not cause the rights of
a Participant subject to Section 16(a) of the Exchange Act relating to the
Deferral Account and rabbi trust to be deemed a "derivative security" within
the definition of Rule 16a-1(c)(3) (including subparagraph (i) thereunder)
under the Exchange Act.
8. SETTLEMENT OF DEFERRAL ACCOUNTS.
(a) Form of Payment. The Company shall settle a Participant's Deferral
Account, other than a Deferral Account established under Section 7 hereof, and
discharge all of its obligations to pay deferred compensation under the Plan
with respect to such Deferral Account, by payment of cash or, in the discretion
of the Committee, by delivery of other assets having a fair market value equal
to the amount of cash otherwise payable; provided, however, that Stock may be
delivered in settlement of any Stock-denominated award deferred under the
Company's 1993 Long Term Incentive Plan, 1993 Stock Option Subplan for Key
Executives, employment agreements or other arrangements if such award has been
continuously deemed invested in Stock under the Plan, except that Stock may not
be delivered to a Participant who is then subject to Section 16(a) of the
Exchange Act in settlement of an award subject to Section 7.
(b) Timing of Payments. Payments in settlement of a Deferral Account
shall be made at the date or dates (including upon the occurrence of specified
events), and in such number of installments, as may be directed by the
Participant in his or her election relating to such Deferral Account, or earlier
in the event of termination of employment by the Participant in the following
circumstances:
(i) In the event of termination of employment for reasons other than
normal retirement, early retirement approved by the Committee, or
Disability, a single lump sum payment in settlement of any Deferral
Account (including a Deferral Account with respect to which one or more
installment payments have previously been made) shall be made as promptly
as practicable following the next Valuation Date, unless otherwise
determined by the Administrator; or
(ii) In the event of a Change in Control, payments in settlement of any
Deferral Account (including a Deferral Account with respect to which one
or more installment payments have previously been made) will be made
within fifteen (15) business days following such Change in Control.
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(c) Financial Emergency and Other Payments. Other provisions of the
Plan (except Section 9) notwithstanding, if, upon the written application of a
Participant, the Committee or Administrator determines that the Participant has
a financial emergency of such a substantial nature and beyond the individual's
control that payment of amounts previously deferred under the Plan is warranted,
the Committee or Administrator may direct the payment to the Participant of all
or a portion of the balance of a Deferral Account and the time and manner of
such payment, and the Committee may direct such payments in other circumstances
if, in the exercise of its independent judgment, it determines that
circumstances beyond the individual's control warrant such action.
9. PROVISIONS RELATING TO SECTION 16 OF THE EXCHANGE ACT AND SECTION
162(M) OF THE CODE.
(a) Compliance with Section 16. With respect to a Participant who
is then subject to the reporting requirements of Section 16(a) of the Exchange
Act:
(i) Any function of the Committee under the Plan relating to such
Participant shall be performed solely by the Committee, if and to the
extent required to ensure the availability of an exemption under Rule
16b-3 or exclusion under Rule 16a-1(c) for such Participant with respect
to the Plan.
(ii) The provisions of Section 6(c) notwithstanding, no such
Participant may reallocate amounts credited to a Deferral Account into or
out of a Stock-denominated or Stock equivalent investment vehicle, unless
otherwise determined by the Committee.
(iii) To the extent necessary so that transactions by and rights of
such a Participant under the Plan are excluded from reporting under Rule
16a-1(c) (unless acknowledged by the Participant in writing with respect
to a specified transaction not to be excluded), if any provision of this
Plan or any rule, election form or other form, or instruction does not
comply with the requirements of such Rule as then applicable to such
transaction or right under the Plan, such provision shall be construed or
deemed amended to the extent necessary to conform to such requirements.
(b) Compliance with Code Section 162(m). It is the intent of the
Company that any compensation (including any award) deferred under the Plan by a
person who is, with respect to the year of payout, deemed by the Committee to be
a "covered employee" within the meaning of Code Section 162(m) and regulations
thereunder (including Proposed Regulation 1.162-27(c)(2)), which compensation
constitutes either "qualified performance-based compensation" within the meaning
of Code Section 162(m) and regulations thereunder (including Proposed Regulation
1.162-27(e)) or compensation not otherwise subject to the limitation on
deductibility under Section 162(m) and regulations thereunder (including as a
result of transition rules under Proposed Regulation 1.162-27(h)), shall not, as
a result of deferral hereunder, become compensation with respect to which the
Company in fact would not be entitled to a tax deduction under Code Section
162(m). Accordingly, unless otherwise determined by the Committee, if any
compensation would become so disqualified under Section 162(m) as a result of
deferral hereunder, the terms of such deferral shall be automatically modified
to the extent necessary to ensure that the compensation would not, at the time
of payout, be so disqualified.
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10. STATEMENTS. The Administrator will furnish statements to each
Participant reflecting the amount credited to a Participant's Deferral Accounts
and transactions therein not less frequently than once each calendar year.
11. SOURCES OF STOCK: LIMITATION ON AMOUNT OF STOCK-DENOMINATED
DEFERRALS. If Stock is deposited under the Plan in a rabbi trust pursuant to
Section 7 in connection with a deferral of a Stock-denominated award under the
Company's 1993 Long Term Incentive Plan, 1993 Stock Option Subplan for Key
Executives, or another plan, program, employment agreement or other arrangement
that provides for the issuance of shares, the shares so deposited shall be
deemed to have originated, and shall be counted against the number of shares
reserved, under such other plan, program or arrangement. The number of Stock
equivalents credited to such Deferral Accounts shall in no event exceed the
number of shares subject to the Stock-denominated awards deferred under the
Plan. The number of Stock equivalents otherwise credited to Deferral Accounts
of Participants who are subject to Section 16(a) of the Exchange Act shall not
exceed 2,000,000, subject to appropriate and proportionate adjustment to reflect
stock splits, dividends, and similar events. Shares actually delivered in
settlement of Deferral Accounts shall be originally issued shares or treasury
shares, in the discretion of the Committee; provided, however, that only
treasury shares shall be delivered hereunder to persons who are then "officers"
within the meaning of Section 312.03 of the Listed Company Manual of the New
York Stock Exchange (or any successor thereto).
12. AMENDMENT/TERMINATION. The Committee may amend, alter, suspend,
discontinue, or terminate the Plan without the consent of Participants,
stockholders, or any other person; provided, however, that, without the consent
of a Participant, no such action shall materially and adversely affect the
rights of such Participant with respect to any rights to payment of amounts
credited to such Participant's Deferral Account. Notwithstanding the foregoing,
the Committee may, in its sole discretion, terminate the Plan and distribute to
Participants the amounts credited to their Deferral Accounts.
13. GENERAL PROVISIONS.
(a) Limits on Transfer of Awards; Beneficiaries. No right of a
Participant under the Plan shall be pledged, encumbered, hypothecated, or liable
for or subject to any lien, obligation, or liability of such Participant, or
shall be assignable or transferable by such Participant, otherwise than by will
or the laws of descent and distribution; provided, however, that a Participant
may designate a Beneficiary to receive any payment under the Plan in the event
of the death of the Participant.
(b) Receipt and Release. Payments (in any form) to any Participant or
Beneficiary in accordance with the provisions of the Plan shall, to the extent
thereof, be in full satisfaction of all claims for the compensation or awards
deferred and relating to the Deferral Account to which the payments relate
against the Company or any subsidiary thereof, the Committee, or the
Administrator, and the Administrator may require such Participant or
Beneficiary, as a condition to such payments, to execute a receipt and release
to such effect.
(c) Unfunded Status of Awards; Creation of Trusts. The Plan is intended
to constitute an "unfunded" plan for deferred compensation and Participants
shall rely solely on the unsecured promise of the Company for payment hereunder.
With respect to any payment not yet made to a Participant under the Plan,
nothing contained in the Plan shall give a Participant any rights that are
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greater than those of a general creditor of the Company; provided, however,
that the Committee may authorize the creation of trusts, including but not
limited to the trusts referred to in Sections 6 and 7 hereof, or make other
arrangements to meet the Company's obligations under the Plan, which trusts or
other arrangements shall be consistent with the "unfunded" status of the Plan
unless the Committee otherwise determines with the consent of each affected
Participant.
(d) Compliance. A Participant in the Plan shall have no right to
receive payment (in any form) with respect to his or her Deferral Account until
legal and contractual obligations of the Company relating to establishment of
the Plan and the making of such payments shall have been complied with in full.
In addition, the Company shall impose such restrictions on Stock delivered to a
Participant hereunder and any other interest constituting a security as it may
deem advisable in order to comply with the Securities Act of 1933, as amended,
the requirements of the New York Stock Exchange or any other stock exchange or
automated quotation system upon which the Stock is then listed or quoted, any
state securities laws applicable to such a transfer, any provision of the
Company's Certificate of Incorporation or Bylaws, or any other law, regulation,
or binding contract to which the Company is a party.
(e) Other Participant Rights. No Participant shall have any of the
rights or privileges of a stockholder of the Company under the Plan, including
as a result of the crediting of Stock equivalents or other amounts to a Deferral
Account, or the creation of any rabbi trust and deposit of such Stock therein,
except at such time as Stock may be actually delivered in settlement of a
Deferral Account. No provision of the Plan or transaction hereunder shall
confer upon any Participant any right to be employed by the Company or a
subsidiary thereof, or to interfere in any way with the right of the Company or
a subsidiary to increase or decrease the amount of any compensation payable to
such Participant. Subject to the limitations set forth in Section 13(a) hereof,
the Plan shall inure to the benefit of, and be binding upon, the parties hereto
and their successors and assigns.
(f) Tax Withholding. The Company and any subsidiary shall have the
right to deduct from amounts otherwise payable in settlement of a Deferral
Account any sums that federal, state, local or foreign tax law requires to be
withheld with respect to such payment. Shares may be withheld to satisfy such
obligations in any case where taxation would be imposed upon the delivery of
shares, except that shares issued or delivered under the Company's 1993 Long
Term Incentive Plan, 1993 Stock Option Subplan for Key Executives, employment
agreements or other arrangements, or any other plan or program of the Company
may be withheld only in accordance with the terms of such plan and any
applicable rules, regulations, or resolutions thereunder.
(g) Governing Law. The validity, construction, and effect of the Plan
and any rules and regulations relating to the Plan shall be determined in
accordance with the laws of the State of Georgia, without giving effect to
principles of conflicts of laws, and applicable provisions of the Delaware
General Corporation Law and federal law.
14. EFFECTIVE DATE. The Plan shall be effective as of August 4, 1994.
As adopted by the Human Resources and Compensation Committee on August 4, 1994.
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