(FERRO LOGO)
EXHIBIT 10(j)
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FERRO CORPORATION
SUPPLEMENTAL EXECUTIVE
DEFINED CONTRIBUTION PLAN
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Amended and Restated Effective
June 30, 2004
As Amended and Restated
June 30, 2004
FERRO CORPORATION
SUPPLEMENTAL DEFINED CONTRIBUTION PLAN
INTRODUCTION
This document (this "Plan") is the FERRO CORPORATION SUPPLEMENTAL EXECUTIVE
DEFINED CONTRIBUTION PLAN. This Plan was originally adopted and effective as of
January 1, 1996.
This Plan is now amended and restated effective June 30, 2004, as follows.
ARTICLE I
NAME AND PURPOSE
1.1 Name. The name of this Plan is the "Ferro Corporation Supplemental
Executive Defined Contribution Plan."
1.2 Plan Sponsor. The sponsor of this Plan is Ferro Corporation ("Ferro"), an
Ohio corporation.
1.3 Purpose. This purpose of this Plan is to replace, under the conditions set
forth in this Plan, certain benefits that select management and highly
compensated employees of the Ferro Group Companies cannot receive under
Ferro Corporation Savings and Stock Ownership Plan due to limitations
imposed by the Internal Revenue Code or by plan design.
1.4 Plan for a Select Group. This Plan covers only employees of a Ferro Group
Company who are members of 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. Notwithstanding any provision of this Plan to the
contrary, this Plan will be administered and its benefits limited in a
manner to comply with the above cited sections of ERISA.
1.5 Not a Funded Plan. Ferro intends that this Plan be deemed to be "unfunded"
for tax purposes as well as for purposes of Title I of ERISA.
Notwithstanding any provision of this Plan to the contrary, this Plan will
be administered in a manner so that it is deemed "unfunded."
ARTICLE II
DEFINITIONS AND INTERPRETATION
2.1 Definitions. Appendix A sets forth the definitions of certain terms used in
this Plan. Those terms shall have the meanings set forth on Appendix A
where used in this Plan and identified with initial capital letters.
2.2 General Rules of Construction. For purposes of interpreting this Plan,
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As Amended and Restated
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(A) the masculine gender will include the feminine and neuter, and vice
versa, as the context requires;
(B) the singular number will include the plural, and vice versa, as the
context requires;
(C) the present tense of a verb will include the past and future tenses,
and vice versa, as the context requires; and
(D) as provided under Article VIII, the Administrator retains the power
and duty to interpret this Plan and resolve ambiguities.
ARTICLE III
PARTICIPATION
3.1 Eligibility. In order to be eligible to participate in this Plan, an
individual must be a Highly Compensated Employee.
3.2 Participation. A Highly Compensated Employee will become a Participant in
this Plan on the January 1 immediately following the date he or she becomes
a Highly Compensated Employee.
ARTICLE IV
SUPPLEMENTAL MATCHING CONTRIBUTIONS,
SUPPLEMENTAL BASIC PENSION CONTRIBUTIONS,
AND ACCOUNTS
4.1 Eligibility for Supplemental Matching Contributions. Each Plan Year a
Supplemental Matching Contribution will be credited to the Account of each
Participant who is eligible. A Participant will be eligible if the
Participant:
(A) made the maximum 401(k) Contributions permitted under the Ferro SSOP
during the Plan Year, and
(B) either:
(1) was employed by a Ferro Group Company on the last day of the Plan
Year,
(2) died during the Plan Year,
(3) retired and began receiving pension benefits under the Ferro
Corporation Retirement Plan during the Plan Year (or, if not a
participant in the Ferro Corporation Retirement Plan, terminated
employment after attaining age 55 and 5 Years of Vesting Service
during the Plan Year), or
(4) incurred a Disability during the Plan Year.
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4.2 Amount of Supplemental Matching Contributions. An Eligible Participant will
receive a Supplemental Matching Contribution on the last day of the Plan
Year equal to A minus B, where:
(A) "A" equals the amount of matching contribution that would have been
contributed to the Participant's account under the Ferro SSOP for the
Plan Year if the Participant elected to make 401(k) Contributions
equal to eight percent (8%) of Compensation and the Code provisions
allowed and did not impose a limit on such 401(k) Contributions or
matching contributions; and
(B) "B" equals the amount of matching contributions actually contributed
to the Participant's account under the Ferro SSOP for the Plan Year.
4.3 Eligibility for Supplemental Basic Pension Contributions. Each Plan Year a
Supplemental Basic Pension Contribution will be credited to the Account of
each Participant who is eligible. A Participant will be eligible if the
Participant received a Basic Pension Contribution under the Ferro SSOP
during the Plan Year.
4.4 Amount of Supplemental Basic Pension Contributions. An eligible Participant
will receive a Supplemental Basic Pension Contribution on the last day of
the Plan Year equal to A minus B, where:
(A) "A" equals the amount of Basic Pension Contribution that would have
been contributed to the Participant's account under the Ferro SSOP for
the Plan Year on the basis of the Participant's Compensation not
limited by Code provisions; and
(B) "B" equals the amount of Basic Pension Contributions actually
contributed to the Participant's account under the Ferro SSOP for the
Plan Year.
4.5 Establishment of Account. Each Ferro Group Company will establish an
Account in the name of each Participant who is employed by it on the books
and records of the Ferro Group Company. All amounts credited to the Account
of any Participant or former Participant will constitute a general,
unsecured liability of such Ferro Group Company to the Participant. The
Ferro Group Company will maintain a separate Account for contributions
credited to the Participant prior to 2001 as may be necessary for the
deemed investment of the Participant's Account as provided under Section
6.4 below.
4.6 Crediting of Earnings. The Ferro Group Company will credit the Account of
each Participant who is or was its employee with earnings, gains and losses
in accordance with the deemed investment of the Supplemental Matching
Contributions and Supplemental Basic Pension Contributions as provided
under Section 6.4 below.
4.7 Vesting of Account. A Participant will become vested in his or her Account
in accordance with the following schedule:
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YEARS OF VESTING SERVICE PERCENTAGE VESTED
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Less than 1 year 0%
1 year, but less than 2 20%
2 years, but less than 3 40%
3 years, but less than 4 60%
4 years, but less than 5 80%
5 years or more 100%
The prior provisions notwithstanding, a Participant who has not incurred a
Termination of Employment will be 100% vested in the Account upon the first
to occur of: (a) the Participant's attainment of age 65, (b) the
Participant's incurring a Disability, (c) the Participant's death, or (d) a
Change of Control.
ARTICLE V
BENEFITS; PAYMENT OF BENEFITS
5.1 Date of Distribution. Distribution of the vested portion of the
Participant's Account will be made as soon as practicable after the earlier
of the Participant's Termination of Employment, Disability or Death.
5.2 Form of Distribution. Distribution will be in the form of a single lump sum
payment. The portion of the Participant's Account deemed to be invested in
the Ferro Common Stock Account under Section 6.4 will be distributed in the
form of Ferro Common Stock unless the Participant elects to receive payment
of that portion in cash. The portion of the Participant's Account deemed to
be invested in the cash account under Section 6.4 will be distributed in
the form of cash.
5.3 Valuation of Distributions. All distributions under this Plan will be based
upon the amount credited to the Participant's Account as of the last day of
the month in which occurs the Participant's Termination of Employment,
Death, or commencement of long-term disability benefits on account of a
determination of Disability under a Ferro Group Company long-term
disability plan. Such date shall be the Valuation Date for this purpose.
5.4 Death. In the event of Death, the Participant's remaining vested interest
in the Account will be distributed to the Participant's Beneficiary.
5.5 Administration of Distributions. Distributions under this Plan will be made
as soon as administratively possible following receipt of notice by the
Administrator of an event that entitles a Participant or a Beneficiary to
payments under this Plan and completion by the Participant or Beneficiary
of any forms required by the Administrator.
5.6 Designation of Beneficiary. Subject to the rules and procedures promulgated
by the Administrator, a Participant may sign a document designating a
Beneficiary or Beneficiaries. If a Participant fails to designate any
Beneficiary in accordance with the
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provisions of this Section, then the Beneficiary will be deemed to be the
Participant's beneficiary under the Ferro SSOP.
5.7 Protective Distributions. If the Administrator determines, in its sole
discretion, that a Participant is not, or may not be, a member of a "select
group of management or highly compensated employees" within the meaning of
Section 201(2), 301(a)(3), 401(a)(1) or 4021(b)(6) of ERISA, then the
Administrator may, in its sole discretion, terminate the Participant's
participation in this Plan, and distribute all amounts credited to the
Participant's Account in a single lump sum payment. Any distribution under
this Section will be made at the time the Administrator determines in its
sole discretion.
5.8 Tax Withholding. A Ferro Group Company may withhold, from any payment made
by it under this Plan, the amount or amounts as may be required for
purposes of complying with the tax withholding or other provisions of the
Code or the Social Security Act or any state or local income or employment
tax act or for purposes of paying any estate, inheritance or other tax
attributable to any amounts payable hereunder.
5.9 Inability to Locate Participant. If a Ferro Group Company or the
Administrator notifies a Participant or Beneficiary of an entitlement to an
amount under this Plan and the Participant or Beneficiary fails to claim
the amount or to disclose the location of the Participant or Beneficiary
within three years thereafter, then, except as otherwise required by law,
if the location of one or more of the next of kin of the Participant or
Beneficiary is known to the Ferro Group Company or the Administrator, the
Administrator may direct distribution of the amount to any one or more or
all of the next of kin, and in such proportions as the Administrator, in
its sole discretion, determines. If the location of none of the foregoing
persons can be determined, the Administrator will direct that the amount
payable to the Participant or Beneficiary be forfeited. If, after the
forfeiture, the Participant or Beneficiary later claims the benefit under
this Plan, then the benefit will be reinstated without interest or earnings
from the date of forfeiture. If a benefit payable to a Participant or
Beneficiary that cannot be located is subject to escheat under state law,
then no further benefit will be payable with respect to any Participant for
whom payment was made by the Administrator according to the escheat
provisions of state law.
ARTICLE VI
RIGHTS OF PARTICIPANTS
6.1 Creditor Status of Participants. The Supplemental Matching Contributions
and Supplemental Basic Pension Contributions credited to a Participant
shall be merely an unfunded, unsecured promise of the Ferro Group Company
(by which the Participant is employed) to make benefit payments in the
future and shall be liabilities solely against the general assets of such
Ferro Group Company. Except as provided in Section 6.6, Ferro and the other
Ferro Group Companies shall not be required to segregate, set aside or
escrow the Supplemental Matching Contributions, Supplemental Basic Pension
Contributions nor any earnings, gains and losses credited thereon. With
respect to amounts credited to any Account hereunder and any benefits
payable hereunder, a Participant and Beneficiary will have the status of
general unsecured creditors of the Ferro Group Company (by which the
Participant is employed),
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and may look only to that Ferro Group Company and its general assets for
payment of the Account
6.2 Rights with Respect to the Trust. Any trust, and any assets held thereby to
assist Ferro or any other Ferro Group Company in meeting its obligations
under this Plan, will in no way be deemed to controvert the provisions of
Section 6.1 above.
6.3 Investments. In Ferro's sole discretion, the Ferro Group Companies may
acquire insurance policies, annuities or other financial vehicles for the
purpose of providing future assets of the Ferro Group Companies to meet
their anticipated liabilities under this Plan. Such policies, annuities or
other investments, shall at all times be and remain unrestricted general
property and assets of the Ferro Group Companies or property of a trust
established pursuant to Article VII of this Plan. Participants and
Beneficiaries will have no rights, other than as general creditors, with
respect to any such policies, annuities or other acquired assets.
6.4 Method for Crediting Investment Return. The Ferro Group Company by which
the Participant is employed will maintain a separate Account for the
Participant. A Participant's Account is deemed to be invested as follows.
(A) Post-2000 Contributions. The Supplemental Matching and Supplemental
Basic Pension Contributions credited to a Participant's Account after
December 31, 2000 will be deemed to be invested in Ferro Common Stock
as of the date the contributions are credited under the Plan. The
Account will be deemed to receive all dividends (whether in stock or
cash) and stock splits which would be received if the Account was
actually invested in shares of Ferro Common Stock, and such dividends
and stock splits will be deemed to be reinvested in shares of Ferro
Common Stock as of the date of their receipt. Each investment in Ferro
Common Stock will be deemed to be made at the closing sale price of
Ferro Common Stock on the New York Stock Exchange Composite Tape (as
reported in The Wall Street Journal) on the trading day of the deemed
investment.
(B) Pre-2001 Contributions. Only Supplemental Matching Contributions were
credited under the Plan prior to 2001. The Supplemental Matching
Contributions credited to a Participant's Account prior to 2001 will
be deemed to be invested as of the date the contributions are credited
under the Plan in a cash account with a rate of return determined by
Ferro. Prior to the beginning of each Plan Year, Ferro will determine
the rate of investment credit for the following Plan Year. The prior
provisions notwithstanding, the Participant was entitled to elect in
writing, during the special election period provided in 2001, for all
or a portion of such pre-2001 Supplemental Matching Contributions to
be deemed to instead be invested in Ferro Common Stock. Under any such
election, the Supplemental Matching Contributions designated by the
Participant to be deemed invested in shares of Ferro Common Stock will
be deemed invested as of the date the contributions were credited
under the Plan, and otherwise will be valued and credited with
dividends and stock splits, in the same manner as described in Section
6.4(A) above.
(C) Periodic Adjustment of Accounts. As of each Valuation Date, the
Participant's Account will be adjusted to reflect earnings and losses
on the deemed investments. To the extent the Account is deemed to be
invested in Ferro Common Stock, it will be credited as of each
Valuation Date with hypothetical
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appreciation and depreciation and earnings, as computed and determined
by the Administrator based on the value of Ferro Common Stock and its
dividends, etc., as provided in Section 6.4(A) above. To the extent
the Participant's Account is deemed to be invested in the cash
account, it will be credited as of each Valuation Date with
hypothetical earnings, as computed and determined by the Administrator
using a rate of interest equal to that determined by Ferro prior to
the beginning of the Plan Year as provided in Section 6.4(B) above.
The Administrator will provide each Participant with a statement
showing the balance credited to the Participant's Account as of the
last day of the preceding Plan Year, and at such other times as the
Administrator may elect.
(D) Investment Election Changes. Effective July 1, 2004, a Participant may
elect to change the deemed investment of all or a portion of the
Participant's Account from a deemed investment in Ferro Common Stock
to a deemed investment in the cash account (as described in Section
6.4(A) and (B) above), and vice versa. As of the effective date of a
Participant's investment election change, the Participant's Account
will be valued and adjusted in accordance with the procedures set
forth in the preceding paragraph (C) to reflect the new deemed
investment(s). Further, the Participant may elect to change the
initial investment of all or a portion of the Participant's future
Supplemental Matching Contributions or future Supplemental Basic
Pension Contributions, or both. Any investment election change by a
Participant must be made in accordance with, and will be effective as
provided in, procedures established by the Plan Administrator.
Notwithstanding any provision of this Section to the contrary,
(1) any Participant who is subject to Ferro Common Stock ownership
requirements must satisfy those requirements both before and
after any change in the deemed investment of the Participant's
Account or of future Supplemental Matching or Basic Pension
Contributions, and
(2) no Participant may elect to change the deemed investment of any
portion of the Participant's Account or of future Supplemental
Matching or Basic Pension Contributions if the change is
prohibited by law or if any liability would result to the
Participant or any Ferro Group Company.
Unless and until the Participant elects to change or to direct the
investment of the Participant's Account or future Supplemental
Matching or Basic Pension Contributions pursuant to this Section
6.4(D), those amounts will be deemed to be invested as provided in
Section 6.4(A) and (B) above.
6.5 Bookkeeping Account Only. A Participant's Account is solely for the purpose
of measuring the amounts to be paid under this Plan. The Ferro Group
Companies will not fund or secure, and will not be permitted to fund or
secure, the Account in any way, and the Ferro Group Companies' obligation
to the Participants under this Plan is solely contractual.
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As Amended and Restated
June 30, 2004
ARTICLE VII
TRUST
7.1 Establishment of Trust. Notwithstanding any other provision or
interpretation of this Plan, Ferro may establish a Trust in which to hold
cash, insurance policies or other assets that may be used to make, or
reimburse Ferro or any other Ferro Group Company for, payments to the
Participants or Beneficiaries of all or part of the benefits under this
Plan. Any Trust assets shall at all times remain subject to the claims of
the general creditors of Ferro or the Ferro Group Company in the event of
the insolvency of Ferro or the Ferro Group Company as more fully described
in the Trust.
7.2 Obligation of the Ferro Group Companies. Notwithstanding the fact that a
Trust may be established under Section 7.1, the Ferro Group Companies will
remain liable for paying the benefits under this Plan. However, any payment
of benefits to a Participant or Beneficiary made by a Trust will satisfy
the appropriate Ferro Group Company's obligation to make payment to such
person under this Plan.
7.3 Trust Terms. A Trust established under Section 7.1 may contain any terms as
Ferro may determine to be necessary or desirable. Ferro may terminate or
amend a Trust established under Section 7.1 at any time, and in any manner
it deems necessary or desirable, subject to the terms of any agreement
under which any Trust is established or maintained.
ARTICLE VIII
ADMINISTRATION AND CLAIMS PROCEDURE
8.1 Administrator. The Administrator will be Ferro, acting by and through
Ferro's Corporate Human Resources Department, unless the Board of
Directors, acting itself or through an appropriate committee, designates
otherwise.
8.2 General Rights, Powers, and Duties of Administrator. The Administrator will
be the Plan administrator under ERISA. The Administrator will be
responsible for the general administration of this Plan and will have all
powers as may be necessary to carry out the provisions of this Plan and
may, from time to time, establish rules for the administration of this Plan
and the transaction of this Plan's business. In addition to any powers,
rights and duties set forth elsewhere in this Plan, it will have the
following powers and duties:
(A) To enact rules, regulations, and procedures and to prescribe the use
of such forms as it deems advisable;
(B) To appoint or employ agents, attorneys, actuaries, accountants,
assistants or other persons (who may also be Participants in this Plan
or be employed by or represent a Ferro Group Company) at the expense
of the Ferro Group Companies, as it deems necessary to keep its
records or to assist it in taking any other action authorized or
required under this Plan;
(C) To interpret this Plan, and to resolve ambiguities, inconsistencies
and omissions, to determine any question of fact, to determine the
right to benefits of,
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June 30, 2004
and the amount of benefits, if any, payable to, any person in
accordance with the provisions of this Plan and resolve all questions
arising under this Plan;
(D) To administer this Plan in accordance with its terms and any rules and
regulations it establishes; and
(E) To maintain records concerning this Plan as it deems sufficient to
prepare reports, returns and other information required by this Plan
or by law; and
(F) To direct a Ferro Group Company to pay benefits under this Plan and to
give other directions and instructions as may be necessary for the
proper administration of this Plan.
Any decision, interpretation or other action made or taken by the
Administrator arising out of or in connection with this Plan, will be
within the absolute discretion of the Administrator, and will be final,
binding and conclusive on Ferro, all other Ferro Group Companies, and all
Participants and Beneficiaries and their respective heirs, executors,
administrators, successors and assigns. The Administrator's determinations
under this Plan need not be uniform, and may be made selectively among
Participants, whether or not they are similarly situated.
8.3 Information to Be Furnished to the Administrator. A Ferro Group Company
will furnish the Administrator with such data and information as it may
reasonably require. The records of a Ferro Group Company will be
determinative of each Participant's period of employment, termination of
employment, personal data, Compensation, and data regarding the
contributions made for or on behalf of the Participant under the Ferro
SSOP. Participants and their Beneficiaries will furnish to the
Administrator such evidence, data or information and execute such documents
as the Administrator requests.
8.4 Claim for Benefits. A Participant or Beneficiary will make all claims for
payment under his Plan in writing to the Administrator in the manner
prescribed by the Administrator. The Administrator will process each claim
and determine entitlement to benefits within 90 days after the
Administrator receives a completed application for benefits. If the
Administrator needs an extension of time for processing, then the
Administrator will notify the claimant before the end of the initial 90-day
period. The extension notice will indicate the special circumstances
requiring an extension of time and the date as of which the Administrator
expects to render the final decision. In no event will such an extension
exceed 90 days from the end of the initial period.
8.5 Denial of Benefit. If a claim is wholly or partially denied by the
Administrator, then the Administrator will notify the claimant of the
denial of the claim in a writing delivered in person or mailed by first
class mail to the claimant's last known address. The notice of denial will
contain:
(A) the specific reason or reasons for 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
the material or information is necessary; and
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(D) an explanation of this Plan's claim review procedure.
If no notice is provided, the claim will be deemed denied. The
interpretations, determinations and decisions of the Administrator will be
final and binding upon all persons with respect to any right, benefit and
privilege hereunder, subject to the review procedures set forth in this
Article.
8.6 Request for Review of a Denial of a Claim for Benefits. Any claimant or any
authorized representative of the claimant whose claim for benefits under
this Plan has been denied or deemed denied, in whole or in part, may upon
written notice to the Appeals Committee request a review by the Appeals
Committee of the denial of the claim. The claimant will have 60 days from
the date the claim is deemed denied or 60 days from receipt of the notice
denying the claim, as the case may be, in which to request a review by
written application delivered to the Appeals Committee, which must specify
the relief requested and the reason such claimant believes the denial
should be reversed.
8.7 Appeals Procedure. The Appeals Committee will review the facts and relevant
documents including this Plan, and interpret the facts and relevant
documents including this Plan to render a decision on the claim. The review
may be of written briefs submitted by the claimant, or at a hearing, or by
both, as deemed necessary or appropriate by the Appeals Committee. Any
hearing will be held in the main office of Ferro, or such other location as
the Appeals Committee may select, on the date and at the time as the
Appeals Committee designates by giving at least 15-days' notice to the
claimant, unless the claimant accepts shorter notice. The notice will
specify that the claimant must indicate in writing, at least five days in
advance of the hearing, the claimant's intention to appear at the appointed
time and place, or the hearing will be automatically cancelled. The reply
will specify any other persons who will accompany the claimant to the
hearing, or such other persons will not be admitted to the hearing. The
Appeals Committee will make every effort to schedule the hearing on a day
and at a time that is convenient to both the claimant and the Appeals
Committee. The claimant, or his duly authorized representative, may review
all pertinent documents relating to the claim in preparation for the
hearing and may submit issues and comments in writing before or during the
hearing.
8.8 Decision Upon Review of Denial of Claim for Benefits. In making its
decision, the Appeals Committee will have full power and discretion to
interpret this Plan, to resolve ambiguities, inconsistencies and omissions,
to determine any question of fact, and to determine the right to benefits
of, and the amount of benefits, if any, payable to, any person in
accordance with the provisions of this Plan. The Appeals Committee will
render a decision on the claim reviewed no more than 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 60-day period may be extended up to 120 days. The Appeals
Committee will provide written notice of its decision to the claimant
within the time frame specified. The notice will include the specific
reasons for the decision and contain specific references to the relevant
Plan provisions upon which the decision is based. If notice of the decision
is not provided within the time frame specified, the claim will be deemed
denied on review. The decision of the Appeals Committee will be final and
binding in all respects on the Administrator, the Ferro Group Company and
claimant involved.
8.9 Establishment of Appeals Committee. The Chief Executive Officer of Ferro
will appoint three or more persons to serve as members of the Appeals
Committee. The
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Chief Executive Officer may appoint one Appeals Committee to hear all
appeals of denied benefits that arise under this Plan, or may appoint a new
Appeals Committee each time an Appeals Committee is needed to hear an
appeal of denied benefits that arises under this Plan. The members of the
Appeals Committee will remain in office at the will of the Chief Executive
Officer, and the Chief Executive Officer may remove any of the members with
or without cause. A member of the Appeals Committee may resign upon written
notice to the remaining member or members of the Appeals Committee and to
the Chief Executive Officer, respectively. The fact that a person is a
Participant or a former Participant or a prospective Participant will not
disqualify that person from acting as a member of the Appeals Committee. No
member of the Appeals Committee will be disqualified from acting on any
question because of the member's interest in the question, except that no
member of the Appeals Committee may act on any claim which the member has
brought as a Participant, former Participant, or Beneficiary under this
Plan. In case of the death, resignation or removal of any member of the
Appeals Committee, the remaining members will act until a successor-member
is appointed by the Chief Executive Officer. At the Administrator's
request, the Chief Executive Officer will notify the Administrator in
writing of the names of the members of the Appeals Committee, of any and
all changes in the membership of the Appeals Committee, of the member
designated as Chairman, and the member designated as Secretary, and of any
changes in either office. Until notified of a change, the Administrator
will be protected in assuming that there has been no change in the
membership of the Appeals Committee or the designation of Chairman or of
Secretary since the last notification was filed with it. The Administrator
will be under no obligation at any time to inquire into the membership of
the Appeals Committee or its officers. All communications to the Appeals
Committee will be addressed to its Secretary at the address of the Company.
8.10 Operation of the Appeals Committee. On all matters and questions, the
decision of a majority of the members of the Appeals Committee will govern
and control. A meeting need not be called or held to make any decision. The
Appeals Committee will appoint one of its members to act as its Chairman
and another member to act as Secretary. The terms of office of these
members will be determined by the Appeals Committee, and the Secretary
and/or Chairman may be removed by the other members of the Appeals
Committee for any reason which such other members may deem just and proper.
The Secretary will do all things directed by the Appeals Committee.
Although the Appeals Committee will act by decision of a majority of its
members as provided above, in the absence of written notice to the
contrary, every person may deal with the Secretary and consider the
Secretary's acts as having been authorized by the Appeals Committee. Any
notice served or demand made on the Secretary will be deemed to have been
served or made upon the Appeals Committee.
8.11 Limitation of Duties. Ferro, the other Ferro Group Companies, the
Administrator, the Appeals Committee, and their respective officers,
members, employees and agents will have no duty or responsibility under
this Plan other than the duties and responsibilities expressly assigned or
delegated to them pursuant to this Plan. None of them will have any duty or
responsibility with respect to those duties or responsibilities assigned or
delegated to another.
8.12 Agents. The Administrator and the Appeals Committee may hire any attorneys,
accountants, actuaries, agents, clerks, and secretaries as it may deem
desirable in the
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June 30, 2004
performance of its duties, any of whom may also be advisors to any Ferro
Group Company or any subsidiary or affiliated company.
8.13 Expenses of Administration. No fee or compensation will be paid to the
Administrator or any member of the Appeals Committee for their performance
of services as such. Ferro will bear all other expenses incurred in the
administration of this Plan except to the extent Ferro determines that the
expenses are allocable to, and should be paid by, one or more of the Ferro
Group Companies.
8.14 Indemnification. In addition to whatever rights of indemnification any
member or employee of the Administrator, the Appeals Committee, Ferro or
other Ferro Group Company under this Plan may be entitled to under the
articles of incorporation, regulations or bylaws of the Ferro Group
Companies, under any provision of law or under any other agreement, the
Ferro Group Companies will satisfy any liability actually incurred by any
member or employee including reasonable expenses and attorneys' fees, and
any judgments, fines, and amounts paid in settlement, in connection with
any threatened, pending or completed action, suit or proceeding which is
related to the exercise or failure to exercise by any member or employee
any powers, authority, responsibilities or discretion provided under this
Plan or reasonably believed by a member or employee to be provided under
this Plan, and any action taken by a member or employee in connection with
such exercise or failure to exercise. This indemnification for all such
acts taken or omitted is intentionally broad, but will not provide
indemnification for embezzlement or diversion of Plan funds for the benefit
of any member or employee. This indemnification will not be provided for
any claim by a Ferro Group Company or a subsidiary or affiliated company
thereof against any member or employee. No indemnification will be provided
to any person who is not an individual.
8.15 Limitation of Administrative Liability. Neither Ferro, any Ferro Group
Company, the Administrator, the Appeals Committee, nor any of their members
or employees will be liable for any act taken by such person or entity
pursuant to any provision of this Plan except for gross abuse of the
discretion given them under this Plan. No member of the Administrator or
Appeals Committee will be liable for the act of any other member. No member
of the Board of Directors will be liable to any person for any action taken
or omitted in connection with the administration of this Plan.
8.15 Limitation of Sponsor Liability. Any right or authority exercisable by
Ferro or Board of Directors pursuant to any provision of this Plan will be
exercised in Ferro's capacity as sponsor of this Plan, or on behalf of
Ferro in such capacity, and not in a fiduciary capacity, and may be
exercised without the approval or consent of any person in a fiduciary
capacity. Neither Ferro, nor the Board of Directors, nor any of their
respective officers, members, employees, agents and delegates, will have
any liability to any party for its exercise of any such right or authority.
ARTICLE IX
AMENDMENT AND TERMINATION
9.1 Amendment, Modification and Termination. Subject to Section 9.4 below, this
Plan may be amended, modified or terminated by Ferro at any time, or from
time to time, by action of an appropriate Ferro officer authorized or
ratified by the Board of Directors. No amendment, modification or
termination will be effective if it reduces the
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As Amended and Restated
June 30, 2004
amounts credited to any Participant's Account or adversely affects the
right of any Participant or Beneficiary to receive payment of the Account
as provided under this Plan, determined as of the date of the amendment,
unless an equivalent benefit is provided under another plan or program
sponsored by the Company or an Affiliate.
The prior provisions notwithstanding, this Plan may be amended to:
(1) reduce or eliminate the ability for contributions to be credited
to Participants under this Plan;
(2) reduce or eliminate the future deemed interest or earnings
credited to the amounts held in a Participant's Account;
(3) comply with any law; or
(4) preserve the intended deferral of taxation for the benefit of all
Participants Accounts.
9.2 Effect of Amendment on Distributions. If this Plan is amended to terminate
the Plan or to prohibit future contributions under the Plan, the Accounts
of Participants who have not incurred a Termination of Employment will
become will be 100% vested as of the date of the termination of the Plan or
prohibition of future contributions under the Plan.
9.3 Actions Binding on Ferro Group Companies. Any amendments made to this Plan
will be binding on all the Ferro Group Companies without the approval or
consent of the Ferro Group Companies other than Ferro. Ferro may, by
amendment, also terminate this Plan on behalf of all or any one of the
other Ferro Group Companies in its sole discretion.
9.4 Termination or Amendment After Change in Control. If a Change of Control
occurs, then, for a period of two (2) calendar years following such Change
in Control, Ferro may not amend or terminate this Plan without the prior
written consent of all Participants.
ARTICLE X
FERRO GROUP COMPANIES
10.1 List of Ferro Group Companies. The Ferro Group Companies as of the
Amendment and Restatement Date are Ferro and the Affiliates of Ferro listed
on Appendix B to this Plan. Ferro may from time to time add or remove Ferro
Affiliates from the list of Ferro Group Companies by written action of its
Chief Executive Officer. The addition or deletion will not require a formal
amendment to this Plan.
10.2 Delegation of Authority. Ferro is fully empowered to act on behalf of
itself and the other Ferro Group Companies as it may deem appropriate in
maintaining this Plan and any Trust. The adoption by Ferro of any amendment
to this Plan or any Trust, or the termination of this Plan or any Trust,
will constitute and represent, without any further action on the part of
any Ferro Group Company, the approval, adoption, ratification or
confirmation by each Ferro Group Company of any amendment or termination.
In addition, the appointment of or removal by Ferro of any Administrator,
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As Amended and Restated
June 30, 2004
any trustee or other person under this Plan or any Trust will constitute
and represent, without any further action on the part of any Ferro Group
Company, the appointment or removal by each Ferro Group Company of such
person.
ARTICLE XI
MISCELLANEOUS
11.1 No Implied Rights. Neither the establishment of this Plan nor any amendment
of this Plan will be construed as giving any Participant, Beneficiary or
any other person any legal or equitable right unless the right is
specifically provided for in this Plan or conferred by specific action of
Ferro in accordance with the terms and provisions of this Plan. Except as
expressly provided in this Plan, neither Ferro nor any other Ferro Group
Company will be required or be liable to make any payment under this Plan.
11.2 No Right to Ferro Group Company Assets. Neither the Participant nor any
other person will acquire by reason of this Plan any right in or title to
any assets, funds or property of Ferro or any other Ferro Group Company
whatsoever including, without limitation, any specific funds, assets or
other property which Ferro or any other Ferro Group Company, in its sole
discretion, may set aside in anticipation of a liability hereunder. Any
benefits which become payable under this Plan will be paid from the general
assets of the appropriate Ferro Group Company. No assets of Ferro or any
other Ferro Group Company will be held in any way as collateral security
for the fulfilling of the obligations of Ferro or the Ferro Group Companies
under this Plan. No assets of Ferro or any other Ferro Group Company will
be pledged or otherwise restricted in order to meet the obligations of this
Plan. The Participant will have only a contractual right to the amounts, if
any, payable hereunder unsecured by any asset of Ferro or any other Ferro
Group Company. Nothing contained in this Plan constitutes a guarantee by
Ferro or any other Ferro Group Company that the assets of Ferro or any
other Ferro Group Company will be sufficient to pay any benefit to any
person.
11.3 No Employment Rights Created. This Plan will not be deemed to constitute a
contract of employment between Ferro or any of the other Ferro Group
Companies and any Participant, or to confer upon any Participant or
employee the right to be retained in the service of Ferro or any other
Ferro Group Company for any period of time, nor shall any provision of this
Plan restrict the right of Ferro or any other Ferro Group Company to
discharge or otherwise deal with any Participant or other employees, with
or without cause. Nothing in this Plan will be construed as fixing or
regulating the compensation or other benefits payable to any Participant or
other employee of Ferro or any other Ferro Group Company.
11.4 Offset. If at the time payment is to be made under this Plan the
Participant or the Beneficiary or both are indebted or obligated to a Ferro
Group Company, then the payment to be made to the Participant or the
Beneficiary or both may, at the discretion of the Administrator at the
request of the Ferro Group Company, be reduced by the amount of the
indebtedness or obligation, provided, however, that an election by the
Ferro Group Company not to request any reduction will not constitute a
waiver of the Ferro Group Company's claim for such indebtedness or
obligation.
11.5 No Assignment. Neither the Participant nor any other person will have any
voluntary or involuntary right to commute, sell, assign, pledge,
anticipate, mortgage or otherwise
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As Amended and Restated
June 30, 2004
encumber, transfer, hypothecate or convey, in advance of actual receipt of
the amount, if any, payable under this Plan, or any part of the amount
payable from this Plan, and any attempt to do so will be void. All benefits
or amounts credited to Accounts under this Plan are expressly declared to
be unassignable and non-transferable. No part of the benefits or amounts
credited to Accounts under this Plan will be, before 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.
11.6 Notice. Any notice required or permitted to be given under this Plan will
be sufficient if in writing and hand delivered, or sent by registered or
certified mail or by overnight delivery service, and:
(A) if given to a Ferro Group Company, delivered to the principal office
of Ferro, directed to the attention of the General Counsel; or
(B) if given to a Participant or Beneficiary, delivered to the last post
office address as shown on the Ferro Group Company's or the
Administrator's records.
Notice will 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.
11.7 Governing Laws. This Plan will be construed and administered according to
the internal substantive laws of the State of Ohio to the extent not
preempted by the laws of the United States of America.
11.8 Incapacity. If the Administrator determines that any Participant or
Beneficiary entitled to payment under this Plan is a minor, a person
declared incompetent or a person incapable of handling his or her property,
the Administrator may direct any payment to the guardian, legal
representative or person having the care and custody of the minor,
incompetent or incapable person. The Administrator may require proof of
minority, incompetence, incapacity or guardianship, as it may deem
appropriate before making any payment. The Administrator will have no
obligation thereafter to monitor or follow the application of amounts so
paid. Payments made pursuant to this Section will completely discharge this
Plan, any Trust, the Administrator, Ferro and all other Ferro Group
Companies with respect to the payments.
11.9 Court Ordered Distributions. The Administrator is authorized to make any
payments directed by court order in any action in which this Plan or the
Administrator is named as a party. In addition, if a court determines that
a spouse or former spouse or dependent or former dependent of a Participant
has an interest in the Participant's Account under this Plan in connection
with a property settlement or otherwise, the Administrator, in its sole
discretion, will have the right, notwithstanding any election made by a
Participant, to immediately distribute the spouse's or former spouse's or
dependent's or former dependent's interest in the Participant's Account
under this Plan to that spouse or former spouse or dependent or former
dependent.
11.10 Administrative Forms. All applications, elections and designations in
connection with this Plan made by a Participant or Beneficiary will become
effective only when duly executed on forms provided by the Administrator
and filed with the Administrator.
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As Amended and Restated
June 30, 2004
11.11 Independence of Plan. Except as otherwise expressly provided, this Plan
will be independent of, and in addition to, any other employee benefit
agreement or plan or any rights that may exist from time to time under any
other agreement or plan.
11.12 Responsibility for Legal Effect. Neither Ferro, any other Ferro Group
Company, the Administrator, nor any officer, member, delegate or agent of
any of them, makes any representations or warranties, express or implied,
or assumes any responsibility concerning the legal, tax, or other
implications or effects of this Plan.
11.13 Successors. The terms and conditions of this Plan will inure to the
benefit of and bind Ferro, the Ferro Group Companies, the Administrator and
its members, the Participants, their Beneficiaries, and the successors,
assigns, and personal representatives of any of them.
11.14 Headings and Titles. The Section headings and titles of Articles used in
this Plan are for convenience of reference only and are not to be
considered in construing this Plan.
11.15 Appendices. The Appendices to this Plan constitute an integral part of
this Plan and are hereby incorporated into this Plan by this reference.
11.16 Severability. If any provision or term of this Plan, or any agreement or
instrument required by the Administrator, is determined by a judicial,
quasi-judicial or administrative body to be void or not enforceable for any
reason, all other provisions or terms of this Plan or the agreement or
instrument will remain in full force and effect and will be enforceable as
if the void or nonenforceable provision or term had never been a part of
this Plan, or the agreement or instrument.
11.17 Actions by Ferro. Except as otherwise provided in this Plan, all actions
of Ferro under this Plan will be taken by the Board of Directors, and be
evidenced in a writing executed by an appropriate officer duly authorized.
11.18 Spousal Consent and Release. If, in the opinion of Ferro, any present,
former or future spouse of an employee entitled to benefits from this Plan
shall by reason of law appear to have any interest in the Plan benefits
that may be or become payable hereunder to such employee, Ferro may as a
condition precedent to the making of a benefit payment hereunder, require
such written consent or release as in its discretion it shall determine to
be necessary, desirable or appropriate either to prevent or avoid any
conflict or multiplicity of claims, or to protect the rights of any such
present, former or future spouse with respect to the payment of any
benefits under this Plan.
11.19 Overpayments and Repayments. In the event that Ferro determines that the
benefits actually paid under this Plan exceed the benefits that were
properly payable to a Participant or Beneficiary pursuant to this Plan,
Ferro may exercise any legal remedies available.
11.20 References to Sections of Law. References herein to the Code are to the
Internal Revenue Code of 1986, as heretofore and hereafter amended, and to
similar provision of subsequent federal law. References herein to ERISA are
to the Employee Retirement Income Security Act of 1974, as heretofore and
hereafter amended, and to similar provisions of subsequent law.
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As Amended and Restated
June 30, 2004
To evidence this amended and restated FERRO CORPORATION SUPPLEMENTAL
EXECUTIVE DEFINED CONTRIBUTION PLAN, Ferro Corporation, as Plan sponsor, has
caused this document to be executed by its duly authorized officers as of this
30th day of June, 2004.
FERRO CORPORATION
By: /s/ James C. Bays
------------------------------------
James C. Bays
Vice President & General Counsel
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As Amended and Restated
June 30, 2004
Appendix A
DEFINITIONS
For purposes of this Plan, the following terms have the meanings set forth
below where used in this Plan and identified with initial capital letters:
TERM MEANING
---- -------
Account For each Participant the bookkeeping account
maintained by Ferro to reflect the Participant's
Supplemental Matching Contributions, Supplemental
Basic Pension Contributions, and the deemed
investment return on those amounts. A
Participant's Account will not constitute nor be
treated as a trust fund of any kind.
Administrator As defined in Section 8.1 of this Plan.
Affiliate Any entity which is a member of a controlled group
of corporations with the Company under Section
414(b) of the Code, under common control with the
Company under Section 414(c) of the Code, a member
of an affiliated service group with the Company
under Section 414(m) of the Code, or otherwise
required to be aggregated with the Company under
Section 414(o) of the Code.
Amendment and June 30, 2004.
Restatement Date
Beneficial Owner "Beneficial owner" within the meaning of Rule
13d-3 under the Exchange Act.
Beneficiary As defined in Section 5.6 of this Plan.
Board of Directors Ferro's Board of Directors.
Change in Control A change in the control of Ferro that is required
to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under
the Exchange Act. For purposes of this definition,
a Change in Control will be deemed to have
occurred if and when:
(a) any "person" (as such term is used in
Sections 13(d)(3) and 14(d)(2) of the
Exchange Act) is or becomes the beneficial
owner, directly or indirectly, of securities
of Ferro representing twenty-five percent
(25%) or more of the combined voting power of
Ferro's outstanding voting securities; or
(b) during any period of two consecutive years,
the individuals set forth below in
sub-paragraph (1) and
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As Amended and Restated
June 30, 2004
Appendix A
TERM MEANING
---- -------
(2) cease for any reason to constitute at
least a majority of the Board of Directors:
(1) the individuals who at the beginning of
such period constituted the Board of
Directors, and
(2) any new director (other than a director
designated by a person who has entered
into an agreement or arrangement with
Ferro to effect a transaction described
in clause (a) or (c) of this definition)
whose appointment, election, or
nomination for election by Ferro's
shareholders, was approved by a vote of
at least two-thirds of the directors
then still in office who either were
directors at the beginning of the period
or whose appointment, election or
nomination for election was previously
so approved; or
(c) a merger or consolidation of Ferro or one of
its subsidiaries is consummated with or into
any other corporation, other than a merger or
consolidation which would result in the
holders of the voting securities of Ferro
outstanding immediately prior thereto holding
securities which represent immediately after
such merger or consolidation more than 50% of
the combined voting power of the voting
securities of either Ferro or the other
entity which survives such merger or
consolidation or the parent of the entity
which survives such merger or consolidation;
or
(d) a sale or disposition by Ferro of all or
substantially all Ferro's assets is
consummated.
Code The Internal Revenue Code of 1986, as amended, and
any lawful regulations or other pronouncements
promulgated that Code.
Compensation "Compensation" as defined under the Ferro SSOP,
but increased to include amounts deferred under
the Ferro Corporation Executive Employee Deferred
Compensation Plan and decreased to exclude awards
paid under Ferro's Performance Share Plan (except
that awards paid prior to January 1, 2007 are
included for purposes of determining Supplemental
Matching Contributions), and without regard to any
provisions of the Code which limit the amount of
such compensation that can be taken into account
for purposes of determining contributions or
benefits.
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As Amended and Restated
June 30, 2004
Appendix A
TERM MEANING
---- -------
Specifically, as of the Amendment and Restatement
Date, Compensation under this Plan means
compensation (as defined in Section 415(c)(3) of
the Code) paid by a Ferro Group Company to or on
behalf of a Participant while a Participant in the
Ferro SSOP during a Plan Year, including all wages
and salary, commissions, bonuses, accrued vacation
pay, 401(k) Contributions contributed under the
Ferro SSOP, elective employer contributions made
on behalf of the Participant that are not
includible in gross income under Section 125, 129,
132(f), 402(e)(3), 402(h)(1)(B), 403 and 457 of
the Code, and deferred amounts under the Ferro
Corporation Executive Employee Deferred
Compensation Plan, but excluding relocation
expense reimbursements (including mortgage
interest differentials) or other expense
allowances or fringe benefits which are paid with
respect to a period following termination of
employment, automobile allowance income, foreign
service premiums, awards paid under Ferro's
Performance Share Plan, and any other
extraordinary income, allowance, and welfare
benefits. The prior sentence notwithstanding,
awards paid prior to January 1, 2007 under Ferro's
Performance Share Plan will be included in
Compensation for purposes of determining a
Participant's Supplemental Matching Contribution.
Disability Any disability that qualifies a Participant for
payment of benefits under a Ferro Group Company
long-term disability plan. The determination of
whether a Participant suffers a Disability will be
made by the Ferro Group Company long-term
disability plan.
ERISA The Employee Retirement Income Security Act of
1974, as amended, and any lawful regulations or
pronouncements issued under that Act.
Exchange Act The Securities Exchange Act of 1934, as amended,
and any lawful regulations or pronouncements
issued under that Act.
Ferro As defined in Section 1.2 of this Plan. Such term
also includes any successor corporation or
business organization that subsequently assumes
Ferro's duties and obligations under this Plan.
Ferro Common Stock The Common Stock of Ferro, par value $1.00 per
share.
Ferro Group Companies As defined in Section 10.1 of this Plan.
Ferro SSOP Ferro's Savings and Stock Ownership Plan, as the
same
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As Amended and Restated
June 30, 2004
Appendix A
TERM MEANING
---- -------
may be amended from time to time.
401(k) Contributions Pre-tax contributions made to the Ferro SSOP
pursuant to Code Section 401(k).
Highly Compensated Employee An employee of a Ferro Group Company who is in
Salary Grade 22 or higher and for whom
contributions under the Ferro SSOP are limited due
to the provisions of Section 401(a)(17), 401(k),
401(m), 402(g) or 415 of the Code.
Participant A Highly Compensated Employee of a Ferro Group
Company who becomes a Participant pursuant to
Section 3.2 of this Plan. A Participant will cease
to be a Participant, and shall become a former
Participant, upon the earliest of the following:
(a) Termination of Employment,
(b) the date the employee ceases to be a Highly
Compensated Employee, or
(c) the date the employee's participation in this
Plan is terminated by the Administrator
pursuant to Section 5.7 of this Plan or
otherwise.
Person A "person" as defined under Section 3(a)(9) of the
Exchange Act as modified and used in Sections
13(d) and 14(d) of the Exchange Act, excluding:
(a) Ferro or any of its subsidiaries;
(b) a trustee or other fiduciary holding
securities under an employee benefit plan of
the Company (or of any of its affiliates as
defined under Rule 12b-2 under Section 12 of
the Exchange Act);
(c) an underwriter temporarily holding securities
pursuant to an offering of such securities;
or
(d) a corporation owned, directly or indirectly,
by the shareholders of Ferro in substantially
the same proportion as their ownership of the
stock of Ferro.
this Plan As defined in the Introduction to this Plan.
Plan Year The calendar year.
Termination of Employment A Participant's cessation of service with Ferro
and the other Ferro Group Companies, including
Affiliates of the
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As Amended and Restated
June 30, 2004
Appendix A
TERM MEANING
---- -------
foregoing, for any reason whatsoever, whether
voluntarily or involuntarily, including by reason
of retirement, death, or Disability.
Trust The trust, if any, established pursuant to Section
7.1 of this Plan.
Valuation Date The last day of each quarter in the Plan Year and
any other date or dates Ferro, in its sole
discretion, designates from time to time.
For purposes of determining the value of a
Participant's Account for distribution, the
Valuation Date is the last day of the month in
which occurs the Participant's Termination of
Employment, Death, or commencement of long-term
disability benefits on account of a determination
of Disability under a Ferro Group Company
long-term disability plan.
Years of Vesting Service The years of vesting service with which a
Participant is credited under the Ferro SSOP.
-v-
As Amended and Restated
June 30, 2004
Appendix B
FERRO GROUP COMPANIES
The following are the Ferro Group Companies:
Ferro Corporation
FEM Inc.
Ferro Glass & Color Corporation
Ferro International Services, Inc.
Ferro Pfanstiehl Laboratories, Inc.