Exhibit 10.30
Oglebay Norton Company
Management Incentive Plan
ARTICLE 1
PURPOSE AND DEFINITIONS
1.1 Purpose. The purpose of this Oglebay Norton Company Management
Incentive Plan is to retain key employees of Oglebay Norton Company and
its subsidiaries by providing them with incentives for continued
service.
1.2 Definitions. The following words and phrases as used herein shall have
the following meanings, unless a different meaning is required by the
context:
"Annual Base Salary" shall mean the Participant's gross annual base
salary at the higher of the rate in effect immediately before payment
is to be made under the terms of this Plan or the rate in effect on the
Effective Date.
"Board" shall mean the Board of Directors of the Company as constituted
at any time.
"Cause" shall mean, with respect to a Participant, the following: (i)
if the Participant has an employment agreement in effect with an
Employer which contains a definition of cause, then the definition of
the term "Cause" for purposes of the Plan shall be as defined in such
employment agreement, or (ii) if the Participant does not have an
employment agreement in effect with an Employer which contains a
definition of cause, then "Cause" for purposes of this Plan shall mean
(A) the Participant's failure to properly perform the Participant's
duties for the Employer (except due to physical or mental impairment);
(B) the Participant's material violation of Employer policies as
communicated to the Participant; (C) the Participant's conviction of,
or plea of nolo contendere to a felony under the laws of the United
States or any state or political subdivision thereof; or (D) the
commission of any other act by the Participant which brings an Employer
into substantial public disgrace or disrepute. Notwithstanding the
foregoing, "Cause" shall not be deemed to exist under clause (ii)(A),
(ii)(B) or (ii)(D) unless the Committee provides the Participant with
specific written notice of the facts relating to such event and the
Participant does not cure such conduct within ten (10) business days
after the receipt of such notice.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Committee" shall have the meaning specified in Section 5.1.
"Company" shall mean Oglebay Norton Company.
"Disabled" shall have the same meaning as under the Company's long-term
disability plan, as in effect from time to time.
"Discretionary Bonus Pool" shall have he meaning set forth in Section
2.3.
"Effective Date" shall mean the effective date of the joint plan of
reorganization of the Company and the other debtors named therein,
including all amendments and modifications thereto (the "Plan of
Reorganization"), as confirmed by the United States Bankruptcy Court
for the District of Delaware, in the matter of In re ONCO Investment
Company, a Delaware corporation, et al., Case No. 04-10558 (JBR).
"Employer" shall mean the Company and/or the Subsidiaries, as
applicable.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"Participant" shall mean any employee of an Employer who is entitled to
participate in the Plan in accordance with Section 2.1, Section 2.3 or
Section 3.1.
"Plan" shall mean this Oglebay Norton Company Management Incentive
Plan.
"Retention Bonus" shall mean the amount payable as determined pursuant
to Section 2.1.
"Subsidiary" shall mean any corporation or limited liability company,
50% or more of whose stock or membership interests having general
voting power is owned by the Company, or by another Subsidiary as
herein defined, of the Company or any limited partnership of which the
Company or another Subsidiary is the sole general partner.
"Supplemental Severance Pay" shall mean the amount payable as
determined pursuant to Section 3.1.
ARTICLE 2
RETENTION BONUS; DISCRETIONARY BONUS POOL
2.1 Retention Bonus. Each Participant listed on Schedule A hereto shall be
eligible to receive a retention bonus in an amount equal to the
Participant's Annual Base Salary multiplied by the retention bonus
percentage set forth opposite such Participant's name (the "Retention
Bonus"); provided, however, that with respect to each Participant who
holds one of the titles listed on Schedule B hereto, the amount of such
Participant's Retention Bonus shall be reduced by 5% for each completed
calendar month by which the Effective Date is delayed beyond January
15, 2005.
2.2 Payment of Retention Bonus.
(a) The Employer that employs the Participant at the time
of payment shall pay the Retention Bonus in
installments to each Participant as follows: (i)
one-half of the Retention Bonus on the Effective Date
and (ii) one-half of the Retention Bonus on the 90th
day following the Effective Date; provided that the
Participant must be actively employed with the
Employers and in good standing with respect to all
employment policies
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of the Employers on the date the applicable payment
becomes due. Except as described in Subsection (b)
below, in the event that the Participant terminates
employment with the Employers or the Employers
terminate the Participant's employment for Cause
prior to the date on which the applicable payment is
due, then such payment shall be forfeited and the
Participant shall not be eligible to receive such
payment.
(b) Notwithstanding the foregoing, in the event that an
Employer terminates the employment of a Participant
without Cause or a Participant dies or becomes
Disabled before receiving his entire Retention Bonus,
such Participant (or his estate in the event of his
death) shall continue to be entitled to receive any
unpaid installments of the Retention Bonus from the
former Employer on the same date and in the same
manner as if such Participant had remained actively
employed with the Employers.
2.3 Discretionary Bonus Pool. A discretionary bonus pool of $250,000 (the
"Discretionary Bonus Pool") may be allocated after the Effective Date
to one or more salaried, non-union employees of the Employers who are
not listed on Schedule A, who were employed on February 23, 2004 and
who are designated by the Committee, upon recommendations from the
management team of the Company, as Participants for the purpose of
participation in the Discretionary Bonus Pool. The bonus due to each
such Participant designated pursuant to this Section 2.3 and the terms
and conditions thereof shall be determined by the Committee; upon
recommendations from the management team of the Company, provided,
however, that not more than $10,000 shall be allocated to any one such
Participant. In the event a Participant forfeits any portion of the
benefit payable pursuant to this Section 2.3, the amount of such
benefit shall be restored to the Discretionary Bonus Pool and shall
again be available for allocation pursuant to this Section 2.3.
2.4 Time and Method of Payment. Amounts payable pursuant to this Article 2
shall be paid in a lump sum as soon as practicable, but no later than
five business days, after the applicable payment becomes due.
ARTICLE 3
SUPPLEMENTAL SEVERANCE PAY
3.1 Supplemental Severance Pay. Each Participant listed on Schedule A
hereto shall be eligible to receive Supplemental Severance Pay in an
amount equal to the Participant's Annual Base Salary multiplied by the
severance pay percentage set forth opposite such Participant's name, in
the event that the Participant's employment is terminated by the
Employers without Cause within 12 months following the Effective Date;
provided, however, that the amount of a Participant's Supplemental
Severance Pay shall be reduced by 1/12th of the Participant's Annual
Base Salary multiplied by the severance pay percentage set forth
opposite such Participant's name on Schedule A hereto and multiplied by
each completed calendar month of employment with the Employers after
the Effective Date (but not exceeding six months).
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3.2 Payment of Supplemental Severance Pay. As a condition to receiving any
Supplemental Severance Pay pursuant to Section 3.1, the Participant
shall be required to enter into a release of claims agreement in a form
satisfactory to the Company. The Supplemental Severance Pay shall be
paid in a lump sum on or as soon as practicable after the date on which
the release executed by the Participant becomes irrevocable.
ARTICLE 4
CLAIMS
4.1 Claims Procedure. The Committee shall determine the rights of any
employee or former employee of the Company or a Subsidiary to benefits
hereunder. Any employee or former employee of the Company or a
Subsidiary who believes that he is entitled to receive a benefit under
the Plan, other than that initially determined by the Committee, may
file a claim in writing with the Committee. Unless such claim is
allowed in full, the Committee shall (within 90 days after such claim
was filed, plus an additional 90 days if the Committee determines that
special circumstances require an extension of time for processing the
claim and if written notice of the additional 90-day extension of time
indicating the specific circumstances requiring the extension and the
date by which a decision shall be rendered is given to the claimant
within the first 90-day period) cause written notice to be mailed to
the claimant of the total or partial denial of such claim.
Such notice shall be written in a manner calculated to be understood by
the claimant and shall: (i) state the specific reason(s) for the
adverse benefit determination; (ii) make reference(s) to the specific
provisions of the Plan on which the determination was based; (iii)
contain a description of any additional material or information
necessary for the claimant to perfect the claim and an explanation of
why such material or information is necessary; and (iv) contain a
description of the claim review procedures, and the time limits
applicable to such procedures, including a statement of the claimant's
right to bring a civil action under Section 502(a) of ERISA following
an adverse benefit determination on review.
Within 60 days after the claimant's receipt of a notice of the denial
of his claim, the claimant or his duly authorized representative may
appeal such denial by filing with the Committee a written request for a
review of his claim. If such an appeal is so filed within 60 days, the
Committee, or a person designated by the Committee, shall conduct a
full and fair review of such claim. During such full and fair review,
the claimant shall be provided with the opportunity to submit written
comments, documents, records, and other information relating to the
claim for benefits, and reasonable access to and copies of, upon
request and free of charge, all documents, records, and other
information relevant to the claimant's claim for benefits. In addition,
such full and fair review shall take into account all comments,
documents, records, and other information submitted by the claimant
relating to the claim, without regard to whether such information was
submitted or considered in the initial benefit determination.
The decision of the Committee or its designee shall be made in a
writing delivered to the claimant who filed such an appeal, within a
reasonable time, but in no event later than 60
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days after receipt of the request for review unless special
circumstances require an extension of time for processing. If the
Committee or its designee determines that an extension of time for
processing is required, written notice of the extension shall be
furnished to the claimant who filed the appeal setting forth the
special circumstances requiring an extension of time and the date by
which the Committee or its designee expects to render a decision on
review, and shall be furnished prior to the termination of the initial
60-day period. In no event shall such extension exceed a period of 60
days from the end of the initial 60-day period.
If required by ERISA, the decision on review shall be made by a person
designated by the Committee but who is not a member of the Committee
and who shall not afford deference to the initial adverse
determination.
In the case of a denial of the claim on review, the notice of the
determination shall: (i) be written in a manner calculated to be
understood by the claimant; (ii) state the specific reason(s) for the
decision; (iii) make reference(s) to the specific provision(s) of the
Plan on which the determination was based; (iv) contain a statement
that the claimant is entitled to receive, upon request, and free of
charge, reasonable access to, and copies of, all documents, records,
and other information relevant to the claimant's claim for benefits;
and (v) contain a statement describing any voluntary appeal procedures
offered by the Plan and the claimant's right to bring an action under
Section 502(a) of ERISA. To the extent permitted by applicable law, the
determination on review shall be final and binding on all interested
persons.
4.2 Agent for Service of Legal Process. Service of legal process upon the
Plan shall be made upon any member of the Committee. If service by mail
is permitted, the address to be used for the Committee is care of the
Company, at the address set forth in Section 5.2.
ARTICLE 5
ADMINISTRATION
5.1 Committee. The Plan shall be administered by the Board, or by a
Committee of the Board designated to administer the Plan. During any
period of time in which the Plan is administered by the Board, all
references in the Plan to the Committee shall be deemed to refer to the
Board.
5.2 Plan Sponsor and Plan Administrator. The Company is the sponsor of the
Plan and shall administer the Plan through the Committee. The address
of the Company is: North Point Tower, 1001 Lakeside Avenue, Cleveland,
Ohio 44114.
5.3 Powers. The Committee shall have the power to do all things necessary
or convenient to effect the intent and purposes of the Plan, whether or
not such powers are specifically set forth herein, and, by way of
amplification and not limitation of the foregoing, the Committee shall
have authority, in its reasonable judgment, to:
(a) provide rules for the management, operation and
administration of the Plan, and, from time to time,
amend or supplement such rules;
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(b) construe the Plan in good faith to the fullest extent
permitted by law;
(c) correct any defect, supply any omission, or reconcile
any inconsistency in the Plan in such manner and to
such extent as it shall deem appropriate in its
reasonable discretion to carry the same into effect;
and
(d) make reasonable determinations as to a Participant's
eligibility for benefits under the Plan, including
determinations as to the existence of Cause.
5.4 Binding Authority. The decisions of the Committee shall be final and
conclusive for all purposes of the Plan.
5.5 Information. Each Employer shall furnish to the Committee in writing
all information the Committee may deem appropriate for the exercise of
its powers and duties in the administration of the Plan. Such
information shall be conclusive for all purposes of the Plan, and the
Committee shall be entitled to rely thereon without any investigation
thereof.
ARTICLE 6
GENERAL PROVISIONS
6.1 Unfunded Benefits/Liability for Payment. All benefits payable under the
Plan shall be paid out of the general assets of the Employer that
employed the Participant at the time such benefit became payable (or,
if applicable, the Employer that employed the Participant at the time
of his termination without Cause or his death or disability). No
Employer shall be liable for the benefit obligations of any other
Employer hereunder. Any person who may have or claim any interest in or
right to any compensation, payment or benefit payable hereunder, shall
have solely the status of a general unsecured creditor of the Employer
(or former Employer, if applicable) of the Participant and the Plan
constitutes a mere promise by each such Employer to make benefit
payments in the future. Nothing herein contained shall be construed to
give to or vest in any person now or at any time in the future, any
right, title, interest or claim in or to any specific asset, fund,
reserve, account, insurance or annuity policy or contract or other
property of any kind whatsoever owned by any Employer or in which any
Employer may have any right, title or interest now or at any time in
the future. It is the intention of the Employers and the Participants
that the Plan be unfunded for tax purposes and for purposes of Title I
of ERISA.
6.2 Withholding. Payments under the Plan are subject to such federal, state
and local income tax withholding and all other federal, state and local
taxes (including but not limited to Social Security) as are applicable.
The applicable Employer shall withhold from any payments it makes under
the Plan, all applicable federal, state and local withholding taxes.
6.3 Payment Restriction. Notwithstanding any provision of the Plan to the
contrary, the payment of all or any portion of the amounts payable
hereunder will be deferred to the extent that any amount payable, when
added to any other compensation received or to be
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received by the Participant in the same calendar year, would not be
deductible by an Employer by reason of Section 162(m) of the Code. The
amount to be deferred will equal the amount that otherwise would not be
deductible by the Employer by reason of Section 162(m) of the Code, but
in no event greater than the total amount otherwise payable hereunder.
The deferred amount shall become payable on December 31 of the first
succeeding calendar year in which such amount, when added to all other
compensation received or to be received by the Participant in such
calendar year, would not be non-deductible by the Employer by reason of
Section 162(m) of the Code. The Committee, in its sole and absolute
discretion, shall have the authority to waive this payment restriction
(in whole or in part) upon the written request of the Participant.
6.4 Cumulative Benefits. The benefits provided to any Participant under
this Plan are cumulative of, and are in addition to, all of the other
benefits provided to such Participant under any other benefit plan
maintained, sponsored or provided by an Employer, or any agreement
between such Participant and an Employer.
6.5 Amendment or Termination. The Plan may not be amended in any way to
reduce the benefits payable hereunder to a Participant or otherwise
impair his ability to receive any amount due hereunder, without the
prior written consent of the Participant. Notwithstanding the
foregoing, the Plan shall terminate when all obligations to
Participants have been satisfied in full.
6.6 Severability. If any term or condition of the Plan shall be invalid or
unenforceable to any extent or in any application, then the remainder
of the Plan, with the exception of such invalid or unenforceable
provision, shall not be affected thereby and shall continue in effect
and application to its fullest extent.
6.7 No Employment Rights. Neither the establishment of the Plan, any
provisions of the Plan, nor any action of the Committee shall be held
or construed to confer upon any employee the right to a continuation of
employment by the Company or any Subsidiary.
6.8 Transferability of Rights. A Participant's rights to any benefit under
the Plan are not subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, attachment, or
garnishment by creditors of the Participant. Any attempt to transfer or
assign a benefit, or any rights granted hereunder, by a Participant
shall, in the sole discretion of the Committee (after consideration of
such facts as it deems pertinent), be grounds for terminating any
rights of the Participant to any portion of the benefits not yet
received by the Participant.
6.9 Governing Law. The Plan shall be construed, administered, and enforced
according to the laws of the State of Ohio, except to the extent that
such laws are preempted by the federal laws of the United States of
America. In futherance of, but without limiting the foregoing, benefits
hereunder shall comply with, and be administered in compliance with,
the requirements of Section 409A of the code, as enacted by the
American Jobs Creation Act of 2004, to the extent applicable. The venue
for all actions or proceedings brought by the Company or any
Participant arising out of or relating to the Plan shall be in the
state or federal courts, as the case may be, located in Cleveland,
Ohio. The Company and the Participants hereby irrevocably waive any
objection which they now or hereafter may have to the laying of venue
of any action or proceeding arising out of or
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relating to the Plan brought in any such courts and any objection on
the ground that any such action or proceeding in any such courts has
been brought in an inconvenient forum.
6.10 Gender Neutrality. The masculine pronoun shall be deemed to include the
feminine, and the singular number shall be deemed to include the plural
unless a different meaning is plainly required by the context.
6.11 Effective Date. The Plan shall be effective as of the Effective Date.
IN WITNESS WHEREOF, the Company has caused these presents to be
executed by its duly authorized officer as of the Effective Date.
OGLEBAY NORTON COMPANY
By:
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Name:
Title:
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