EXHIBIT 10.14
OLYMPIC STEEL, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
(Effective December 15, 2004)
ARTICLE I
INTRODUCTION
1.1. Name. The name of this Plan is Olympic Steel, Inc. Executive
Deferred Compensation Plan ("Plan").
1.2. Effective Date. The effective date of this Plan is December 1,
2004.
1.3. Purpose. This Plan is established, effective December 1, 2004, by
Olympic Steel, Inc. for the purpose of providing a tax effective opportunity for
a select group of management and/or highly compensated employees of the Employer
(as defined below) to accumulate unfunded deferred compensation and create
future wealth.
This Plan provides a means whereby an Eligible Employee (as defined
below) may defer payment of a portion of his salary or annual incentive he
otherwise would receive.
All deferrals under this Plan shall be in the form of unfunded
recordkeeping entries that shall be credited with earnings as specified in this
Plan.
ARTICLE II
DEFINITIONS
Whenever the following initially capitalized words and phrases are used
in this Plan, they shall have the meanings specified below unless the context
clearly indicates to the contrary:
2.1. "Administrator" shall mean Olympic Steel, Inc., an Ohio
corporation, or such individuals or committee of individuals as designated by
the Company to serve in such capacity.
2.2. "Appeals Committee" shall mean the Appeals Committee established
pursuant to Article
VIII.
2.3. "Beneficiary" shall mean such person or legal entity as may be
designated by a Participant under Section 5.5 to receive benefits hereunder in
the event of such Participant's death.
2.4. "Change of Control" shall mean, but not be limited to: (a) the
first purchase of shares pursuant to a tender offer or exchange (other than a
tender offer or exchange by the Company and/or any affiliate thereof) for all or
part of the Company's Common Shares of any class or any securities convertible
into such Common Shares and the Participant has elected not to tender or
exchange his Common Shares; (b) the receipt by the Company of a Schedule 13D or
other advice indicating that a person is the "beneficial owner" (as that term is
defined in Rule 13d-3 under the Securities Exchange Act of 1934) of twenty
percent (20%) or more of the Company's Common Shares calculated as provided in
paragraph (d) of said Rule 13d-3; (c) the date of approval by shareholders of
the Company of an agreement providing for any consolidation or merger of the
Company in which the Company will not be the continuing or surviving corporation
or pursuant to which shares of capital stock, of any class or any securities
convertible into such capital stock, of the Company would be converted into
cash, securities, or other property, other than a merger of the Company in which
the holders of common stock of all classes of the Company immediately prior to
the merger would have the same proportion of ownership of common stock of the
surviving corporation immediately after the merger; (d) the date of approval by
shareholders of the Company of any sale, lease, exchange, or other transfer (in
one transaction or a series of related transactions) of all or substantially all
the assets of the Company; (e) the adoption of any plan or proposal for the
liquidation (but not a partial liquidation) or dissolution of the Company; or
(f) the date (the "Measurement Date") on which the individuals who at the
beginning of a two consecutive year period ending on the Measurement Date,
cease, for any reason, to constitute at least a majority of the Board of
Directors of the Company, unless the election, or the nomination for election by
the Company's shareholders, of each new director during such two-year period was
approved by an affirmative vote of the directors (including any Participant)
then still in office who were directors at the beginning of said two-year
period. Notwithstanding the foregoing, (i) if any person's ownership interest in
the Company increases to 20% or more, solely as a result of the Company's
repurchase of its shares, or (ii) Michael D. Siegal increases his ownership
interest to 20% or more, such ownership shall not be considered a Change in
Control for purposes of subparagraph (b) above.
2.5. "Company" shall mean Olympic Steel, Inc. and any successor
corporation or business organization which shall assume the duties and
obligations of Olympic Steel, Inc., under this Plan.
2.6. "Compensation" shall mean the base salary or annual incentive
payable for a Plan Year, before any reduction to such base salary or annual
incentive payment is effected in accordance with the Deferred Compensation
Election Form.
2.7. "Deferred Compensation Account" shall mean the recordkeeping
account established by the Administrator for each Participant to which the
portion of a Participant's Compensation that is voluntarily deferred pursuant to
Article IV is credited. A Participant shall at all times be fully vested in the
balance of his Deferred Compensation Account.
2.8. "Deferred Compensation Election Form" shall mean a document(s) or
form(s), as is made available from time to time by the Administrator, whereby an
Eligible Employee enrolls as a Participant and elects to defer Compensation
pursuant to Article IV of this Plan.
2.9. "Eligible Employee" shall mean an individual actively employed by
the Employer who is a member of a select group of management and/or highly
compensated employees, who have total annual compensation in excess of $125,000,
and who are designated by the Chief Executive Officer of the Company or the
Chief Executive Officer's delegate to be eligible to participate hereunder.
2.10. "Employer" shall mean the Company or any of its participating
subsidiaries approved by the Board of Directors of the Company.
2.11. "Participant" shall mean an individual who has amounts standing
to his credit under this Plan, regardless of whether the individual is currently
deferring into this Plan.
2.12. "Plan Year" shall mean the calendar year.
2.13. "Plan" shall mean the Olympic Steel, Inc. Executive Deferred
Compensation Plan as set forth in this instrument, and as amended from time to
time.
ARTICLE III
PARTICIPATION BY ELIGIBLE EMPLOYEES
3.1. Participation. Participation in this Plan is limited to Eligible
Employees. An Eligible Employee shall participate in the Plan as determined by
the Administrator. A Participant who separates from service with the Employer
will cease participation hereunder.
3.2. Failure to Designate. In the event that the Administrator fails to
designate the group of Eligible Employees who shall be eligible to participate
for any year, each Eligible Employee who was designated in the prior year shall
be deemed to have been designated for the next succeeding Plan Year, provided
that any such employee shall participate for purposes of the next succeeding
Plan Year only if he or she is actively employed by the Employer on the first
day of such succeeding Plan Year and provided he or she is otherwise an Eligible
Employee for such year.
3.3. Immediate Cash-Out of Ineligible Employee. This Plan is intended
to be an unfunded "top-hat" plan, maintained primarily for the purpose of
providing benefits for a select group of management and/or highly compensated
employees. Accordingly, if the Administrator determines that any Participant
does not qualify as a member of the select group, and his continued
participation jeopardizes the "top-hat" status of the Plan, in the
Administrator's sole discretion, one hundred percent (100%) of such
Participant's Deferred Compensation Account shall be paid to the Participant as
soon as practically possible. Notwithstanding the foregoing, the Administrator
shall not make such payment if it determines that doing so would constitute an
impermissible acceleration under, or otherwise violate or result in adverse tax
consequences under, the American Jobs Creation Act of 2004.
ARTICLE IV
PARTICIPANT DEFERRALS
4.1. Base Salary Deferral Election. An Eligible Employee may elect to
defer up to ninety percent (90%) of his future base salary by completing and
executing a Deferred Compensation Election Form that specifies the amount of
base salary to be deferred and filing it with the Administrator. Except as
otherwise provided for herein, any election, modification or revocation shall be
effective only for base salary payable in the Plan Year that commences after the
Plan Year that the Administrator receives the Deferred Compensation Election
Form. Any such election, modification or revocation shall be made not later than
the end of the Plan Year that precedes the Plan Year for which it is effective.
No election, modification or revocation is permissible with respect to base
salary paid prior to the execution of a Deferred Compensation Election Form.
With regard to the initial election of an Eligible Employee who first becomes
eligible to participate in this Plan on or after its Effective Date, such
election shall be made within 30 days after the date the Participant first
becomes eligible to participate in this Plan and shall be effective for base
salary payable on the first administratively feasible pay period after receipt
of such election by the Administrator. A Participant's election to defer base
salary shall remain in effect until modified or revoked as provided in this
Section 4.1.
4.2 Annual Incentive Deferral Election. Each Eligible Employee may
irrevocably elect no later than the December 31st preceding the beginning of the
annual incentive award performance cycle for which it applies to defer all or
any portion of his annual incentive award for that performance cycle by
completing and executing a Deferred Compensation Election Form and filing it
with the Administrator. Notwithstanding the foregoing:
a) no deferral election may be made with respect to any annual incentive
award relating to a period commencing before January 1, 2005; and
b) the Administrator may provide, in its sole and exclusive discretion,
that a Participant may make a deferral election with respect to an annual
incentive award as late as June 30 if it determines that such award is
"performance-based compensation" within the meaning of the American Jobs
Creation Act of 2004.
4.3. Deferred Compensation Account Credits. All deferrals of base
salary or annual incentive awards shall be credited to the Participant's
Deferred Compensation Account.
ARTICLE V
DISTRIBUTIONS
5.1. Distribution Date. Distribution of a Participant's Deferred
Compensation Account shall be made within thirty (30) days after the
Participant's death, long term disability, or separation from service for any
reason or on a date specified by the Participant at the time the distributable
amounts were initially deferred. Notwithstanding the foregoing, in the event of
distribution upon separation from service (for reasons other than long term
disability, death or change in the ownership or effective control of the Company
or a substantial portion of the Company's assets), actual payment of the
distribution amount shall not occur until 6 months after the date of separation
from service, if the Participant is a "key employee" (as defined under Internal
Revenue Code Section 416(i) without regard to paragraph (5) thereof), and the
Employer's stock is publicly traded on an established securities market or
otherwise.
5.2 Further Deferral of Distributions. A Participant may make a
subsequent election to further defer payment of his or her Deferred Compensation
Account provided that:
a) such election is made at least 12 months prior to the date such
Deferred Compensation Account would otherwise be distributed; and
b) payment is deferred for at least 5 years after the date such Deferred
Compensation Account would otherwise be distributed.
5.3. Method of Payment. All distributions from the Participant's
Deferred Compensation Account shall be paid in a cash single lump sum payment.
5.4. Long Term Disability. For purposes of becoming eligible for a
distribution under Section 5.1, a long term disability shall mean any medically
determinable physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not less than 12
months and which results in the Participant: (i) being unable to engage in any
substantial gainful activity; or (ii) receiving income replacement benefits for
a period of not less than 3 months under an accident or health plan covering
employees of the Employer.
5.5. Distributions on Death. In the event of a Participant's death
before his Deferred Compensation Account has been distributed, distribution
shall be made to the Beneficiary designated in writing on a form prescribed by,
and provided to, the Administrator by the Participant in a single lump sum
payment. Distribution will be made within sixty (60) days after the date of
death (or, if later, after the proper Beneficiary has been identified). A
Participant may from time to time change his designated Beneficiary without the
consent of such Beneficiary by filing a new designation in writing with the
Administrator. If no Beneficiary designation is in effect at the time of the
Participant's death, or if the designated Beneficiary is missing or has
predeceased the Participant, distribution shall be made to the Participant's
surviving spouse, or if none, to his surviving children per stirpes, and if
none, to his estate.
ARTICLE VI
ACCOUNTS
6.1. Deferred Compensation Account. The Administrator shall establish
and maintain, or cause to be established and maintained, a separate Deferred
Compensation Account for each Participant hereunder who executes an election
pursuant to Sections 4.1 or 4.2. Each such Participant's Compensation deferred
pursuant to a Deferred Compensation Election Form under Sections 4.1 and 4.2
shall be separately accounted for and credited with earnings, if applicable, for
recordkeeping purposes only, to his Deferred Compensation Account. A
Participant's Deferred Compensation Account shall be solely for the purposes of
measuring the amounts to be distributed under the Plan. The Employer shall not
be required to fund or secure the Deferred Compensation Account in any way, the
Employer's obligation to Participants hereunder being purely contractual.
6.2. Crediting of Earnings and Statement of Account.
a) Each Participant shall be eligible to designate one or more investment
options that are available under the Olympic Steel, Inc. Employees' 401(k)
Retirement Plan and Trust as the deemed investment(s) for his Account or such
other investment options determined appropriate in the sole discretion of the
Board of Directors. The investment options under this Plan may be changed at any
time in the sole discretion of the Board of Directors. As long as the investment
options under the Olympic Steel, Inc. Employees' 401(k) Retirement Plan and
Trust are the deemed investment options under this Plan, a participant's
Deferred Compensation Account shall be credited with deemed earnings (or losses)
on the same frequency as earnings (or losses) are credited under the Olympic
Steel, Inc. Employees' 401(k) Retirement Plan and Trust. In its sole and
exclusive discretion, the Administrator may adjust the amounts credited to the
Deferred Compensation Accounts to take into account taxes or any other amounts
owed by the Company as a result of the investment options offered under this
Plan including, but not limited to, any taxable distributions, taxes generated
by any sale of an investment option or any other charges made with respect to an
investment option.
b) The Board of Directors may change, alter, or modify the Plan's investment
policy as it deems appropriate, from time to time. Any such change, alteration,
or modification shall be communicated to the Participants under procedures
adopted by the Administrator.
c) As soon as practicable after the end of each Plan Year (and at such
additional times as the Administrator may determine), the Administrator shall
furnish each Participant with a statement of the balance credited to the
Participant's Deferred Compensation Account.
6.3. Investment to Facilitate Payment of Benefits. Although the
Employer is not obligated to invest in actual shares of any specific asset or
fund, or purchase any insurance contract, annuity or other financing vehicle in
order to provide the means for the payment of any liabilities under this Plan,
the Employer may elect to do so. Any such investments, contracts, annuities or
other financing vehicles shall at all times be and remain unrestricted general
property and assets of the Employer.
ARTICLE VII
FUNDING AND PARTICIPANT'S INTEREST
7.1. Plan Unfunded. This Plan shall at all times be considered entirely
unfunded for both federal and state income tax purposes and for purposes of
Title I of the Employee Retirement Income Security Act of 1974, as amended. The
crediting to each Participant's Deferred Compensation Account shall be made
through recordkeeping entries. No actual funds shall be set aside; provided,
however, that nothing herein shall prevent the Employer from establishing one or
more grantor trusts from which benefits due under this Plan may be paid in
certain instances. All distributions shall be paid by the Employer from its
general assets and a Participant (or his or her Beneficiary) shall have the
rights of a general, unsecured creditor against the Employer for any
distributions due hereunder. The Plan constitutes a mere promise by the Employer
to make benefit payments in the future.
7.2. Participant's Interest in Plan. A Participant has an interest only
in the value of the amount credited to his account. A Participant has no rights
or interests in any specific funds, stock or securities.
ARTICLE VIII
ADMINISTRATION AND INTERPRETATION
8.1. Administration. The Administrator shall be in charge of the
overall operation and administration of this Plan. The Administrator and Appeals
Committee have in addition to the powers described elsewhere in this Plan, full
discretionary authority to construe and interpret the terms and provisions of
the Plan and related documents; to adopt, alter and repeal administrative rules,
guidelines, forms and practices governing the Plan; to perform all acts,
including the delegation of administrative responsibilities to advisors or other
persons who may or may not be employees of the Employer; and to rely upon the
information or opinions of legal counsel or experts selected to render advice
with respect to the Plan, as they shall deem advisable, with respect to the
administration of the Plan.
8.2. Interpretation. The Administrator and Appeals Committee may take
any action, correct any defect, supply any omission or reconcile any ambiguity
or inconsistency in the Plan, or in any election hereunder, in the manner and to
the extent they shall deem necessary to carry the Plan into effect or to carry
out the Employer's purposes in adopting the Plan. The Administrator and Appeals
Committee have full discretionary authority to determine the right to benefits
of, and the amount of benefits, if any, payable to any person. Any decision,
interpretation or other action made or taken by or at the direction of the
Employer, the Administrator or the Appeals Committee arising out of or in
connection with the Plan, shall be within the absolute discretion of each of
them, and, except as otherwise provided herein, shall be final, binding and
conclusive on the Employer, and all Participants and Beneficiaries and their
respective heirs, executors, administrators, successors and assigns. The
Administrator's determinations hereunder need not be uniform, and may be made
selectively among Eligible Employees, whether or not they are similarly
situated.
8.3. Records and Reports. The Employer shall furnish to the
Administrator such data and information as it may reasonable require.
Participants and Beneficiaries shall furnish to the Administrator such evidence,
data or information and execute such documents as the Administrator requests.
The Administrator shall keep a record of proceedings and actions and shall
maintain or cause to be maintained all such books of account, records, and other
data as shall be necessary for the proper administration of the Plan. Such
records shall contain all relevant data pertaining to individual Participants
and their rights under this Plan. The Administrator shall have the duty to carry
into effect all rights or benefits provided hereunder to the extent assets of
the Employer are properly available.
8.4. Payment of Administrative Expenses. The Employer shall bear all
expenses incurred by the Administrator and Appeals Committee in administering
and resolving claims under this Plan.
8.5 Payment of Litigation Expenses After Change of Control. If a
dispute arises concerning the rights of a Participant or Beneficiary to amounts
deferred under this Plan in connection with a Change of Control or within [2]
years after a Change of Control, regardless of the party by whom such dispute is
initiated, the Employer shall, upon presentation of appropriate vouchers, pay
all legal expenses, including reasonable attorneys' fees and court costs billed
to and payable by the Participant or by anyone with a claim made in good faith
under or through the Participant (such person being hereinafter referred to as
the "Participant's Claimant"), in connection
with the bringing, prosecuting, defending, litigating, negotiating, or settling
of such dispute plus reasonable interest at a rate to compensate for delayed
payments where applicable; provided, that:
a) The Participant or the Participant's Claimant shall repay to the Employer any
such expenses theretofore paid or advanced by the Employer if and to the extent
that Employer obtains a judgment in its favor from a court of competent
jurisdiction from which no appeal may be or is taken, whether because the time
to do so has expired or otherwise; and provided further that
b) In the case of any dispute initiated by a Participant or the Participant's
Claimant, notice of such dispute shall be given, with specific reference to the
provisions of this Plan, to the Administrator within two (2) years after the
occurrence of the event giving rise to such dispute.
8.6. Indemnification for Liability. The Employer shall indemnify the
Administrator and the employees of the Employer to whom the Administrator
delegates duties under this Plan, against any and all claims, losses, damages,
expenses and liabilities arising from their responsibilities in connection with
this Plan, unless the same is determined to be due to gross negligence or
willful misconduct. This indemnification shall not be provided to any person who
is not a present or former employee of the Employer. No indemnification shall be
provided to any person who is not an individual.
8.7. Claims Procedure. All claims for benefits or for participation
must be in writing and submitted to the Administrator. If a claim for benefits
or for participation under this Plan is denied in whole or in part, the claimant
will receive written notification within ninety (90) days unless special
circumstances require an extension of time for processing the claim. If such an
extension of time is required, written notice of the extension shall be
furnished prior to the termination of the initial ninety (90) day period. The
denial notification will include specific reasons for the denial, specific
reference to pertinent provisions of this Plan, a description of any additional
material or information necessary to process the claim and why such material or
information is necessary, and an explanation of the claims review procedure. If
no denial notification is provided within the time frame described in this
Section, the claim shall be deemed denied.
8.8. Review Procedure, The Appeals Committee shall be composed of the
members of the Compensation Committee of the Board of Directors of the Company
or by such other individuals as shall be appointed by the Board of Directors of
the Company. Within sixty (60) days after a claim is denied or deemed denied, in
whole or in part, a claimant (or his duly authorized representative) may file a
written request with the Appeals Committee for a review of his denied or deemed
denied claim. The written request must specify the relief requested and the
reason the denial should be reversed. The claimant may review pertinent
documents that were used in processing his claim, submit pertinent documents,
and address issues and comments in writing to the Appeals Committee.
The Appeals Committee will notify the claimant of its final decision in
writing. If an appeal is denied in whole or in part, the claimant will receive
written notification within ninety (90) days unless special circumstances
require an extension of time for processing the appeal. If such an extension of
time is required, written notice of the extension shall be furnished prior to
the termination of the initial ninety (90) day period. The denial notification
will include specific reasons for the denial and specific reference to pertinent
provisions of this Plan. If the decision on review is not furnished within the
time frame described in this Section, the claim shall be deemed denied on
review.
8.9. Legal Claims. In no event may a claimant commence legal action for
benefits the claimant believes are due the claimant until the claimant has
exhausted all of the remedies and procedures afforded the claimant by this
Article VIII. No such legal action may be commenced more than one hundred eighty
(180) days after the date of the Appeals Committee's final review decision.
8.10. Participant and Beneficiary Information, Each Participant shall
keep the Administrator informed of his or her current address and the current
address of his or her designated Beneficiary or Beneficiaries. The Administrator
shall not be obligated to search for any person. If such person's location is
not discovered within two (2) years after the date on which payment of the
Participant's benefits payable under this Plan may first be made, the
Participant's benefits shall be forfeited. If the Participant or Beneficiary
later claims such benefit, such benefit shall be reinstated without interest or
earnings from the date of forfeiture.
ARTICLE IX
AMENDMENT AND TERMINATION
9.1. Amendment and Termination. Subject to Section 9.4 below, this Plan
may be amended, modified or terminated by the Company at any time, or from time
to time, by action of an appropriate Company officer authorized or ratified by
the Company's Board of Directors. No amendment, modification or termination will
be effective if it reduces the amounts credited to any Participant's Deferred
Compensation Account or adversely affects the right of any Participant or
Beneficiary to receive payment of the Deferred Compensation Account as provided
under this Plan, determined as of the date of the amendment.
The prior provision notwithstanding, this Plan may be amended to:
(1) reduce or eliminate the ability for Participants to defer future
amounts under this Plan;
(2) reduce or eliminate future deemed interest or earnings credits;
(3) comply with any law; or
(4) preserve the intended deferral of taxation for the benefit of all
Participants' Deferred Compensation Accounts.
9.2 Effect of Amendment or Termination on Distributions. If this Plan
is amended to prohibit future deferrals or is terminated, then the amounts
credited to Participants' Deferred Compensation Accounts will be distributed in
accordance with the provisions of Section 5.1. Notwithstanding the foregoing,
amounts credited to Participants' Deferred Compensation Accounts shall not be
distributed upon such an amendment or termination if the Administrator
determines, in its sole and exclusive discretion, that such distributions are
prohibited by, or would result in adverse tax consequences under, the American
Jobs Creation Act of 2004.
9.3 Actions Binding on the Company and Participating Subsidiaries. Any
amendments made to this Plan will be binding on the Company and all
participating subsidiaries without the approval or consent of the participating
subsidiaries. The Company may, by amendment, also terminate this Plan on behalf
of all or any one of the participating subsidiaries in its sole discretion.
9.4 Termination or Amendment After Change of Control. If a Change of
Control occurs, then, for a period of two (2) calendar years following such
Change of Control, the Company may not amend or terminate this Plan without the
prior written consent of all Participants.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Right of Employer to Take Employment Actions. The adoption and
maintenance of this Plan shall not be deemed to constitute a contract between
the Employer and any Eligible Employee, nor to be a consideration for, nor an
inducement or condition of, the employment of any person. Nothing herein
contained, or any action taken hereunder, shall be deemed to give any Eligible
Employee the right to be retained in the employ of the Employer or to interfere
with the right of the Employer to discharge any Eligible Employee at any time,
nor shall it be deemed to give to the Employer the right to require the Eligible
Employee to remain in its employ, nor shall it interfere with the Eligible
Employee's right to terminate his or her employment at any time. Nothing in this
Plan shall prevent the Employer from amending, modifying, or terminating any
other benefit plan.
10.2. Alienation or Assignment of Benefits. A Participant's rights and
interest under the Plan shall not be assigned or transferred except as otherwise
provided herein, and the Participant's rights to benefit payments under the Plan
shall not be subject to alienation, pledge or garnishment by or on behalf of
creditors (including heirs, beneficiaries, or dependents) of the Participant or
of a Beneficiary. Notwithstanding the preceding, the Administrator may direct
distributions to an alternate payee pursuant to a Qualified Domestic Relations
Order (QDRO), prior to any distribution date described in Article V.
10.3. Right to Withhold. To the extent required by law in effect at the
time a distribution is made from the Plan, the Employer or its agents shall have
the right to withhold or deduct from any distributions or payments any taxes
required to be withheld by federal, state or local law.
10.4. Construction. All legal questions pertaining to the Plan shall be
determined in accordance with the laws of the State of Ohio, to the extent such
laws are not superseded by the Employee Retirement Income Security Act of 1974,
as amended, or any other federal law.
10.5. Headings. The headings of the Articles and Sections of this Plan
are for reference only. In the event of a conflict between a heading and the
contents of an Article or Section, the contents of the Article or Section shall
control.
10.6. Number and Gender. Whenever any words used herein are in the
singular form, they shall be construed as though they were also used in the
plural form in all cases where they would so apply, and references to the male
gender shall be construed as applicable to the female gender where applicable,
and vice versa.