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Exhibit 10(v)
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R. G. BARRY CORPORATION
DEFERRED COMPENSATION PLAN
(Effective as of September 1, 1995)
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R. G. BARRY CORPORATION DEFERRED COMPENSATION PLAN
(Effective as of September 1, 1995)
CONTENTS
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Section Page
ARTICLE I. ESTABLISHMENT AND PURPOSE
1.1 Establishment 1
1.2 Purpose 1
1.3 Application of Plan 1
ARTICLE II. DEFINITIONS AND CONSTRUCTION
2.1 Definitions 2
2.2 Gender and Number; Headings 3
ARTICLE III. ELIGIBILITY AND PARTICIPATION
3.1 Eligibility 4
3.2 Participation; Classification of Participants 4
ARTICLE IV. DEFERRAL AMOUNTS; DEFERRAL ELECTIONS
4.1 Types of Deferral Amounts 6
4.2 Salary Deferral Amount Election 6
4.3 Bonus Deferral Amount Election 6
4.4 Matching Amount 7
4.5 Deferral Elections; Deferral Year Amounts 8
4.6 Special Provisions Relating to Change of Employment Status 8
ARTICLE V. PAYMENT OF BENEFITS
5.1 Time of Payment 10
5.2 Forms of Payment 10
5.3 Death Benefit 10
5.4 Disability Benefit 11
5.5 Forfeiture for Misconduct 11
5.6 Tax Liability 11
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R. G. BARRY CORPORATION DEFERRED COMPENSATION PLAN
(Effective as of September 1, 1995)
CONTENTS
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Section Page
ARTICLE VI. ACCOUNTS; CREDITED EARNINGS
6.1 Participant Accounts 12
6.2 Adjustment of Accounts; Account Balances 12
6.3 Credited Earnings 13
6.4 Vesting 13
6.5 Account Statements 13
ARTICLE VII. ADMINISTRATION
7.1 Administration 15
7.2 Rules 15
7.3 Finality of Determination 15
7.4 Expenses 15
7.5 Indemnification and Exculpation 15
7.6 Appeals from Denial of Claims 16
ARTICLE VIII. FUNDING
8.1 Funding 17
8.2 Grantor Trust 17
ARTICLE IX. AMENDMENT; TERMINATION; MERGER
9.1 Amendment and Termination 18
9.2 Merger, Consolidation, or Sale of Assets 18
ARTICLE X. PARTICIPATION IN AND WITHDRAWAL
FROM THE PLAN BY AN EMPLOYER
10.1 Adoption Procedure 19
10.2 Withdrawal from the Plan 19
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R. G. BARRY CORPORATION DEFERRED COMPENSATION PLAN
(Effective as of September 1, 1995)
CONTENTS
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Section Page
ARTICLE XI. GENERAL PROVISIONS
11.1 Beneficiary Designation 21
11.2 Nonalienation 21
11.3 Employer-Employee Relationship 22
11.4 Incompetence 22
11.5 Binding on Employer, Employee, and Their Successors 22
11.6 Severability 22
11.7 Applicable Law 23
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ARTICLE I. ESTABLISHMENT AND PURPOSE
1.1 ESTABLISHMENT
R. G. Barry Corporation ("Company") hereby establishes, effective as of
September 1, 1995, an unfunded deferred compensation plan for eligible
employees, as described herein, which plan shall be known as the "R. G. Barry
Corporation Deferred Compensation Plan" ("Plan").
1.2 PURPOSE
The purpose of the Plan is to provide eligible employees of the employer a
means of deferring amounts payable to them by the employer to a future payment
date. The Plan is intended to provide such eligible employees with a degree of
flexibility in their total compensation financial planning. This Plan is
unfunded and is maintained by the employer primarily for the purpose of
providing deferred compensation for a select group of management or highly
compensated employees within the meaning of Section 201(2) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and as such it is
intended that the Plan be exempt from the relevant requirements of Title I of
ERISA. The Plan is not intended to satisfy the qualification requirements of
Code Section 401.
1.3 APPLICATION OF PLAN
The Plan shall be applicable only with respect to the eligible employees of the
employer who are actively employed by the employer on or after August 31, 1995.
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ARTICLE II. DEFINITIONS AND CONSTRUCTION
2.1 DEFINITIONS
Whenever used in the Plan, the following terms shall have the meaning set forth
below unless otherwise expressly provided:
(a) "ACCOUNT" means the recordkeeping account which is maintained in
the name of a Participant to account for any Salary Deferral Amounts,
Bonus Deferral Amounts, Matching Amounts, and Credited Earnings which
may be credited or debited to his Account from time to time, as
provided in Article VI.
(b) "AFFILIATE" means a corporation or noncorporate entity which the
Committee determines to be an affiliated entity of the Company.
(c) "BENEFICIARY" means the person, persons or trust designated by a
Participant, as provided in Section 11.1.
(d) "BONUS" means any bonus award which an Eligible Employee may
become eligible to receive under the Company's Short Term Incentive
Plan.
(e) "BONUS DEFERRAL AMOUNT" means that portion of an Eligible
Employee's Bonus which he has elected to defer, as provided in
Section 4.3.
(f) "CODE" means the Internal Revenue Code of 1986 and the
regulations issued thereunder, as amended from time to time.
(g) "COMMITTEE" means the Committee which is responsible for
administering the Plan, as provided in Section 7.1.
(h) "COMPANY" means R. G. Barry Corporation and any successors
thereto, as provided in Section 9.2.
(i) "CREDITED EARNINGS" means the earnings or loss amounts credited
or debited to a Participant's Account, as provided in Section 6.3.
(j) "DEFERRAL AMOUNTS" means Salary Deferral Amounts and Bonus
Deferral Amounts, as more fully described in Article IV.
(k) "DEFERRAL YEAR" means a Plan Year for which an Eligible Employee
is making a deferral election, as provided in Article IV.
(l) "DEFERRAL YEAR AMOUNT" means the amount as described in Section
4.5(b). As indicated in such Section, Deferral Year Amounts shall be
known by their Deferral Year (such as a Participant's 1995 Deferral
Year Amount).
(m) "ELIGIBLE EMPLOYEE" means, for any Plan Year, an Employee who
received an annual base salary of $95,000 in the preceding Plan Year;
provided, however, that solely with respect to the initial Plan Year
beginning September 1, 1995, any Employee whose annual base salary for
1995 is projected to be $95,000 or more shall be an Eligible
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Employee. Section 3.1 provides additional information about Eligible Employees.
(n) "EMPLOYEE" means an individual who is a common law employee of
the Company or an Affiliate.
(o) "EMPLOYER" means the Company and any Affiliate which has adopted
the Plan in accordance with Section 10.1.
(p) "ENTRY DATE" means January 1, April 1, July 1 and October 1 of
each Plan Year and, solely with respect to the initial Plan Year,
September 1, 1995.
(q) "MATCHING AMOUNT" means the allocations made by an Employer
conditioned on Salary Deferral Amounts and/or Bonus Deferral Amounts, as
provided in Section 4.4.
(r) "PARTICIPANT" means an Eligible Employee who has become a
Participant under the Plan, as described in Section 3.2.
(s) "PLAN" means the R. G. Barry Corporation Deferred Compensation
Plan as set forth herein, and as it may be amended from time to time.
(t) "PLAN YEAR" means each 12-month period beginning January 1 of
each calendar year and ending on December 31 of the same calendar
year. The initial Plan Year shall be the short year beginning
September 1, 1995 and ending December 31, 1995.
(u) "SALARY DEFERRAL AMOUNT" means that portion of an Eligible Employee's
salary which he has elected to defer, as provided in Section 4.2.
2.2 GENDER AND NUMBER; HEADINGS
Except when otherwise indicated by the context, any masculine terminology when
used in the Plan shall also include the feminine gender, and the definition of
any term in the singular shall also include the plural. Headings of Articles
and Sections herein are included solely for convenience, and if there is any
conflict between such headings and the text of the Plan, the text shall
control.
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ARTICLE III. ELIGIBILITY AND PARTICIPATION
3.1 ELIGIBILITY
Each Employee shall become an "Active Participant" under the Plan on the Entry
Date on which his election to make Deferral Amounts under the Plan becomes
effective, as provided in Article IV, coincident with or next following the
latest to occur of--
(a) the date he is employed as an Eligible Employee,
(b) the date he is credited with at least one year of Eligibility
Service (defined below),
(c) the date on which he attains the age of at least 21 years, or
(d) the date, on or after September 1, 1995, that the Plan was made
applicable to the Employer of the individual.
One year of "Eligibility Service" shall mean the first 12-consecutive-month
period, beginning on the Employee's employment commencement date, during which
the Employee completes 1,000 or more hours of service determined in accordance
with Labor Reg. Section 2530.200b-2 on the basis of an assumed 45 hours of
service per week for each week for which the Employee would have received at
least one hour of service. If the Employee does not actually have 1,000 or more
hours of service during the 12-month period beginning with his employment
commencement date, then one year of "Eligibility Service" shall mean the first
Plan Year (beginning with the Plan Year in which such initial 12-month period
ends) during which he actually has 1,000 or more hours of service as defined
above.
The Committee shall provide each Eligible Employee who is eligible to become a
Participant with notice of his status, so as to permit such Eligible Employee
the opportunity to make the deferral elections provided for under Article IV.
Such notice may be given at such time and in such manner as the Committee may
determine from time to time.
3.2 PARTICIPATION; CLASSIFICATION OF PARTICIPANTS
Each Eligible Employee who has had a Deferral Amount credited to his Account
under the Plan shall be a Participant under the Plan. Such Eligible Employee
shall continue as a Participant under the Plan so long as there is a balance
credited to his Account under the Plan. There shall be two classifications of
Participants under the Plan, as follows:
(a) "Active" Participant--A Participant shall be an "active"
Participant under the Plan at all times when he is both an
Eligible Employee and he is a Participant with a balance
credited to his Account.
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(b) "Inactive" Participant--A Participant shall be an "inactive"
Participant under the Plan during all periods when he has a
balance credited to his Account and he is not an Eligible
Employee. This classification shall include, without limitation,
a former Employee or an Employee other than an Eligible Employee
who has a balance credited to his Account.
The term "Participant" shall refer to both active and inactive Participants,
unless a Participant is separately identified by participation classification.
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ARTICLE IV. DEFERRAL AMOUNTS; DEFERRAL ELECTIONS
4.1 TYPES OF DEFERRAL AMOUNTS
There are two types of Deferral Amounts which may be applicable to a
Participant under the Plan: the Salary Deferral Amounts as described in
Section 4.2 and the Bonus Deferral Amounts as described in Section 4.3. The
Matching Amounts as described in Section 4.4 are dependent upon Deferral
Amounts. Section 4.5 describes certain deferral election provisions which are
applicable to Deferral Amounts.
4.2 SALARY DEFERRAL AMOUNT ELECTION
(a) SALARY DEFERRAL AMOUNT. An Eligible Employee may elect to defer
up to 25 percent of the base salary he may be entitled to receive
from the Employer. The amount to be so deferred shall be
specified as a whole percentage of his base salary with respect
to each payroll period.
(b) ELECTION OF SALARY DEFERRAL AMOUNT. To make an election of a
Salary Deferral Amount, the Eligible Employee must file a
deferral election form with the Committee, as described in this
Article IV. Each such election shall be made with respect to a
Deferral Year and all payroll periods applicable to the Eligible
Employee which begin within such Deferral Year. For example, an
election of a Salary Deferral Amount for the 1996 Deferral Year
shall apply to all payroll periods of the Eligible Employee which
begin on any date after December 31, 1995 and before December 31,
1996. An election filed for a Deferral Year shall only be
applicable for such Deferral Year, and the election therein shall
not be effective for any payroll period beginning after the close
of the Deferral Year. For an election of a Salary Deferral Amount
to become effective for a Deferral Year, the Eligible Employee
must file the appropriate deferral election form by no later than
the day before the subject Deferral Year begins. The first
Deferral Year for which a Salary Deferral Amount election may be
made is the 1995 Deferral Year and the payroll periods beginning
within such Deferral Year. The additional provisions in Section
4.5 shall apply to elections under this Section 4.2.
4.3 BONUS DEFERRAL AMOUNT ELECTION
(a) BONUS DEFERRAL AMOUNT. An Eligible Employee may elect to defer
all or any portion of any Bonus he may be awarded by the
Employer. The amount to be so deferred shall be specified as a
whole percentage of the Bonus with respect to a Deferral Year.
Notwithstanding any Plan provisions to the contrary, the maximum
Bonus Deferral Amount
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for any Deferral Year shall not exceed the difference between (1)
25 percent of the Eligible Employee's base salary for the
Deferral Year and (2) the Salary Deferral Amount allocated under
Section 4.2 with respect to such Deferral Year.
(b) ELECTION OF BONUS DEFERRAL AMOUNT. To make an election of a Bonus
Deferral Amount, the Eligible Employee must file a deferral
election form with the Committee, as described in this Article
IV. Each such election shall be made with respect to a Deferral
Year and the Bonus from the Employer which is made with respect
to such Deferral Year and which is payable after the last day of
the Deferral Year. For purposes of the Plan, for a Bonus to be
made with respect to a Deferral Year, it must be awarded by the
Employer during or after such Deferral Year and be designated as
having been made for such Deferral Year. For example, an election
of a Bonus Deferral Amount for the 1996 Deferral Year shall apply
to the Bonus to the Eligible Employee which is made by the
Employer after such Deferral Year and which is designated as
having been made for such Deferral Year. An election filed for a
Deferral Year shall only be applicable for such Deferral Year,
and the election therein shall not be effective for any
subsequent Deferral Year. For an election of a Bonus Deferral
Amount to become effective for a Deferral Year, the Eligible
Employee must file the appropriate deferral election form by no
later than the day before the Deferral Year begins. The first
Deferral Year for which a Bonus Deferral Amount election may be
made is the 1996 Deferral Year and the Bonus earned with respect
to such Deferral Year. The additional provisions in Section 4.5
shall apply to elections under this Section 4.3.
4.4 MATCHING AMOUNT
For each Plan Year, each Employer shall allocate a Matching Amount on behalf of
each Participant who has elected to defer a Salary Deferral Amount or Bonus
Deferral Amount for the Plan Year. The Matching Amount shall equal 50 percent
of the Salary Deferral Amount deferred by a Participant for each payroll
period; provided, however, that the maximum Matching Amount shall not exceed
one percent of the Participant's base salary for each payroll period. In
addition, the Matching Amount shall equal 50 percent of the Bonus Deferral
Amount deferred by a Participant; provided, however, that the maximum Matching
Amount for a Plan Year, including the Matching Amount attributable to the
Salary Deferral Amount, shall not exceed one percent of the Participant's
annual base salary. Matching Amounts to be allocated on behalf of a Participant
for any Plan Year shall be determined in reference to each payroll period
within such
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Plan Year and to the date when the Bonus earned during the Plan Year would be
paid if no deferral election applied.
4.5 DEFERRAL ELECTIONS; DEFERRAL YEAR AMOUNTS
(a) DEFERRAL ELECTIONS. All deferral elections as provided for under
Sections 4.2 and 4.3, respectively, shall be made on a deferral
election form(s) as prescribed by the Committee. In addition to
specifying the Deferral Amount on the deferral election form, the
Eligible Employee shall specify the form of payment which shall
be applicable with respect to any Deferral Year Amount for the
Deferral Year, as provided for in Article V. All such deferral
elections shall become irrevocable for the subject Deferral Year
once the Deferral Year has commenced or, if later, the date the
election is filed pursuant to Section 4.6. Only Eligible
Employees are eligible to file deferral election forms as
provided for in this Section 4.5 and Sections 4.2 and 4.3, and
inactive Participants are not eligible to file such forms.
(b) DEFERRAL YEAR AMOUNT. In each case where a Participant has filed
a deferral election under Section 4.2 or 4.3, the Deferral Amount
which is the subject of each such election together with the
related Matching Amount and any Credited Earnings attributable
thereto, as the same may be adjusted from time to time, shall be
known as his Deferral Year Amount. For example, an Eligible
Employee's Salary Deferral Amount and/or Bonus Deferral Amount
for the 1996 Deferral Year together with the related Matching
Amount and the Credited Earnings attributable thereto, as
adjusted from time to time, shall be his 1995 Deferral Year
Amount. All deferral elections filed by a Participant with
respect to a particular Deferral Year shall designate the same
form of payment with respect to the entire Deferral Amount. If a
Participant files multiple conflicting elections, the terms of
the election regarding a Salary Deferral Amount will govern.
4.6 SPECIAL PROVISIONS RELATING TO CHANGE OF EMPLOYMENT STATUS
As provided in Sections 4.2, 4.3 and 4.5, only Eligible Employees are eligible
to make deferral elections. The provisions of this Section 4.6 shall apply
where an Eligible Employee has a change of employment status during a Deferral
Year, as described below:
(a) NEW ELIGIBLE EMPLOYEE. If an individual first satisfies all of
the eligibility requirements described in Section 3.1 during a
Deferral Year, he shall be permitted to make a Salary Deferral
Amount election for the remaining payroll periods of such
Deferral Year. To make such election, the Eligible Employee must
file the appropriate deferral
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election form with the Committee no later than the day before the
Entry Date next following the date on which he satisfied all of
the eligibility requirements, and such election shall remain in
effect for each payroll period beginning on or after such Entry
Date and beginning within the subject Deferral Year. Such
Eligible Employee shall not be permitted to make a Bonus Deferral
Amount election for such initial Deferral Year unless his
participation commencement coincides with the beginning of a Plan
Year. Any deferral election as described in this Section 4.6
shall become irrevocable when the appropriate form is filed with
the Committee. Except where specifically provided in this Section
4.6(a), the remaining provisions of this Article IV relating to
deferral elections shall apply to elections under this Section
4.6(a).
(b) CESSATION OF STATUS AS AN EMPLOYEE. In any case where an Eligible
Employee has any deferral election in effect for a Deferral Year,
and he terminates employment as an Employee during such Deferral
Year, any Salary Deferral Amount election in effect for such
Deferral Year shall cease with the close of the payroll period in
which he terminates employment, and any Bonus Deferral Amount
election in effect for such Deferral Year shall be void with
respect to any Bonus payable after his termination of employment.
Amounts deferred under any such election prior to its
discontinuance shall be payable as provided in Article V.
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ARTICLE V. PAYMENT OF BENEFITS
5.1 TIME OF PAYMENT
A Participant (or his Beneficiary) shall become eligible to receive a
distribution of his Account under the Plan upon the earliest to occur of the
following events:
(a) the Participant's termination of employment as an Employee of
the Company and any Affiliate,
(b) the Participant becomes totally and permanently disabled, and
(c) the Participant dies.
5.2 FORMS OF PAYMENT
On each deferral election form filed by an Eligible Employee pursuant to
Section 4.5, such Eligible Employee shall specify the form of payment for the
Deferral Year Amount; provided, however, that his Deferral Year Amounts for a
particular Plan Year must be payable in the exact same form. In making such
designation, the Eligible Employee may designate payment in the form of a
single lump sum payment or payment in the form of annual installment payments
payable for five or ten years. Annual installment payments will commence as
soon as administratively practicable after a Participant's termination of
employment and will continue on each anniversary of the initial payment. If for
any reason the Eligible Employee fails to make an effective designation under
this Section 5.2, payment of the Deferral Year Amount the subject of the
deferral election shall be made in the form of a single lump sum payment.
Except as otherwise provided in Sections 5.3 and 5.4, all benefit payments
under the Plan with respect to a Participant shall be made to the Participant
in the payment forms as specified in his applicable deferral election forms or
as provided in the next preceding sentence.
5.3 DEATH BENEFIT
If a Participant shall die with a balance credited to his Account, such balance
shall be paid to his applicable designated Beneficiary or Beneficiaries as
provided herein. With respect to all Deferral Year Amounts which are credited
to his Account and have not been paid as of the Participant's death, the then
current balance of each such Deferral Year Amount payable to a designated
Beneficiary shall be paid to the designated Beneficiary in the form of a lump
sum payment as soon as administratively practicable after proof of death is
provided to the Committee.
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5.4 DISABILITY BENEFIT
If a Participant shall become totally and permanently disabled, as determined
by the Committee in its absolute discretion, with a balance credited to his
Account, such balance shall be paid to the Participant in the form of a single
lump sum payment as soon as administratively practicable after the Committee
determines that the Participant has become disabled.
5.5 FORFEITURE FOR MISCONDUCT
Notwithstanding any Plan provisions to the contrary, a Participant (or his
Beneficiary) shall have no right to the Matching Amounts and related earnings
portion of his Account under this Plan if the Committee or the Company
determines that the Participant engaged in a willful, deliberate, or gross act
of commission or omission which is injurious to the finances or reputation of
the Company or any of its Affiliates.
5.6 TAX LIABILITY
An Employer may withhold from any payment of benefits hereunder any taxes
required to be withheld and such sum as the Employer may reasonably estimate to
be necessary to cover any taxes for which the Employer may be liable and which
may be assessed with regard to such payment.
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ARTICLE VI. ACCOUNTS; CREDITED EARNINGS
6.1 PARTICIPANT ACCOUNTS
The Committee shall maintain, or cause to be maintained, a bookkeeping Account
for each Participant for the purpose of accounting for the Participant's
beneficial interest under the Plan, which interest is attributable to Deferral
Amounts, Matching Amounts, and any Credited Earnings credited to such
Participant under the Plan, as adjusted to reflect charges against such
Account.
Since Participants make deferral elections with respect to specified Deferral
Years, the Committee shall also maintain within each Participant's Account
subaccounts, as the case may be, such Deferral Year Amount subaccounts as may
be necessary to identify specific Deferral Year Amounts (such as, the 1995
Deferral Year Amount, 1996 Deferral Year Amount, etc. subaccounts). In addition
to the foregoing bookkeeping subaccounts maintained for such Participant, the
Committee shall maintain, or cause to be maintained, such other accounts,
subaccounts, records or books as it deems necessary to properly provide for the
maintenance of Accounts under the Plan, and to carry out the intent and
purposes of the Plan.
6.2 ADJUSTMENT OF ACCOUNTS; ACCOUNT BALANCES
Each Participant's Account shall be adjusted to reflect all Deferral Amounts
credited to his Account, all Matching Contributions credited to his Account,
all Credited Earnings credited or debited to his Account and all benefit
payments charged to his Account. A Participant's elected Salary Deferral
Amounts and Bonus Deferral Amounts, as provided for in Sections 4.2 and 4.3,
respectively, shall be credited to the Participant's Account as of the date on
which the amount which is being deferred would have become payable to the
Participant in the absence of the subject deferral election, and shall be
credited to the applicable subaccount within such Account by reference to the
applicable Deferral Year. The Matching Amounts related to such Deferral Amounts
shall be credited to the Participant's Account as of the date on which the
related Salary Deferral Amount and/or Bonus Deferral Amount are credited to the
applicable subaccount within such Account by reference to the applicable
Deferral Year. Credited Earnings on the balances in a Participant's Account
shall be credited or debited as provided in Section 6.3. Charges to a
Participant's Account to reflect benefit payments under the Plan shall be made
as of the date of any such payment, and shall be charged to the applicable
subaccount within such Account. As of any relevant date, the balance standing
to the credit of a
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Participant's Account, and each separate subaccount comprising such Account,
shall be the respective balance in such Account and the component subaccounts
as of the close of business on such date, and after all applicable credits and
charges have been posted through such date.
6.3 CREDITED EARNINGS
Each Participant shall be credited or debited with Credited Earnings on the
balances in his Account, and the crediting or debiting thereof shall be made to
and by reference to the subaccount balances in such Account. Such Credited
Earnings shall be credited or debited to such Account as of the last day of
each quarter of the Plan Year and at such other date or dates as necessary when
distributions are being made. In crediting or debiting such Credited Earnings,
all Salary Deferral Amounts and related Matching Amounts credited to a
Participant's Account during the applicable Plan Year shall be deemed to have
been credited to his Account as of the date on which the salary was otherwise
payable absent a deferral election, and Bonus Deferral Amounts and related
Matching Amounts shall be deemed to have been credited to his Account as of the
day such Bonus otherwise would have been actually paid to the Participant. The
Credited Earnings rate for the applicable quarter of the Plan Year shall be
equal to the prime rate of interest as of the first business day of each
quarter as published in the Wall Street Journal. Distributions which are
triggered by events occurring during the Plan Year shall include Credited
Earnings determined until the distribution is completed based on the applicable
rate in effect and prorated using completed days.
The Committee shall make all determinations with respect to the applicable
Credited Earnings rate in effect from time to time and with respect to the
crediting or debiting of such Credited Earnings to Accounts, and such
determinations shall be final and binding on all interested parties.
6.4 VESTING
A Participant shall have a fully vested and nonforfeitable beneficial interest
in the balance standing to the credit of his Account as of any relevant date,
subject to the provisions of Section 5.5 and to the conditions and limitations
on the payment of amounts from such Account as provided in the Plan.
6.5 ACCOUNT STATEMENTS
The Committee shall provide each Participant with a statement of the status of
his Account under the Plan. The Committee shall provide such statement annually
or at such other times as the Committee may determine
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from time to time, and such statement shall be in the format as prescribed by
the Committee.
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ARTICLE VII. ADMINISTRATION
7.1 ADMINISTRATION
This Plan shall be administered by the Committee appointed pursuant to the
terms of the R. G. Barry Corporation Salaried Employees' Pension Plan ("Pension
Plan"), as amended and restated effective as of January 1, 1989, and as the
same is amended from time to time. The Committee shall administer this Plan in
a manner consistent with the administration of the Pension Plan, except that
this Plan shall be administered as an unfunded plan which is not intended to
meet the qualification requirements of Code Section 401. The Committee shall
have the same rights and authority granted to it under the Pension Plan, which
shall include the full discretionary power and authority to determine all
questions relating to eligibility and amount of benefits and to interpret,
construe and administer this Plan. The Committee shall establish and maintain
such accounts or records as the Committee may from time to time consider
necessary. Members of the Committee shall not participate in any action or
determination regarding their own benefits under the Plan.
7.2 RULES
The Committee shall adopt and establish such rules and regulations with respect
to the administration of the Plan as it deems necessary and appropriate. The
Committee shall also prescribe such deferral election forms and other
administrative forms as it deems necessary to carry out the provisions of the
Plan.
7.3 FINALITY OF DETERMINATION
The determination of the Committee as to any disputed questions arising under
this Plan, including questions of construction and interpretation, shall be
final, binding, and conclusive upon all persons.
7.4 EXPENSES
The expenses of administering this Plan shall be borne by the Employers in the
proportions determined by the Committee.
7.5 INDEMNIFICATION AND EXCULPATION
The members of the Committee, its agents, and officers, directors, and
employees of the Company or any other Employer shall be indemnified and held
harmless by the Employer against and from any and all loss, cost, liability, or
expense (including any attorneys' fees and court costs) that may
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be imposed upon or reasonably incurred by them in connection with or resulting
from any claim, action, suit, or proceeding to which they may be a party or in
which they may be involved by reason of any action taken or failure to act
under this Plan and against and from any and all amounts paid by them in
settlement (with the Company's written approval) or paid by them in
satisfaction of a judgment in any such action, suit, or proceeding. The
foregoing provision shall not be applicable to any person if the loss, cost,
liability, or expense is due to such person's willful misconduct.
7.6 APPEALS FROM DENIAL OF CLAIMS
If any claim for benefits under the Plan is wholly or partially denied, the
claimant shall be given notice in writing of such denial within a reasonable
period of time (not to exceed 90 days after receipt of the claim, or if special
circumstances require an extension of time, written notice of the extension
shall be furnished to the claimant and an additional 90 days will be considered
reasonable) setting forth the following information:
(a) The specific reason or reasons for the denial;
(b) Specific reference to pertinent Plan provisions on which the
denial is based;
(c) 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;
(d) An explanation that a full and fair review by the Committee of
the decision denying the claim may be requested by the claimant
or his authorized representative by filing with the Committee,
within 60 days after such notice has been received, a written
request for such review; and
(e) If such request is so filed, the claimant or his authorized
representative may review pertinent documents and submit issues
and comments in writing within the same 60-day period specified
in Section 7.6(d).
The decision of the Committee shall be made promptly, and not later than 60
days after the Committee's receipt of the request for review, unless special
circumstances require an extension of time for processing, in which case the
claimant shall be so notified and a decision shall be rendered as soon as
possible, but not later than 120 days after receipt of the request for review.
The claimant shall be given a copy of the decision promptly. The decision shall
be in writing and shall include specific reasons for the decision, written in a
manner calculated to be understood by the claimant, and specific references to
the pertinent Plan provisions on which the decision is based.
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ARTICLE VIII. FUNDING
8.1 FUNDING
It is intended that the Employer is under a contractual obligation to make the
payments from a Participant's Account when due. All amounts paid under the Plan
shall be paid in cash or cash equivalents from the general assets of the
participating Employers. Deferral Amounts, Matching Amounts, and Credited
Earnings shall be reflected on the accounting records of the Employer, as
provided for under the Plan, but such records shall not be construed to create,
or require the creation of, a trust, custodial or escrow account with respect
to any Participant. No Participant shall have any right, title or interest
whatsoever in or to any investment reserves, accounts or funds that the
Employers may purchase, establish or accumulate to aid in providing the benefit
payments described in the Plan. Nothing contained in the Plan, and no action
taken pursuant to its provisions, shall create or be construed to create a
trust or a fiduciary relationship of any kind between an Employer or the
Committee and a Participant or any other person. Participants and Beneficiaries
shall not acquire any interest under the Plan greater than that of an unsecured
general creditor of the Employer.
8.2 GRANTOR TRUST
In accordance with and consistent with Section 8.1, the Employers may from time
to time establish a grantor trust arrangement to create a fund of assets to be
available to pay benefits when they become due under this Plan. The creation of
any grantor trust shall not create any greater rights with respect to
Participants than as provided in such Section 8.1 and the grantor trust
agreement. Also, the creation of such a grantor trust shall in no way be
applied or be construed so that the Plan is anything other than an unfunded
plan as described in Section 1.2.
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ARTICLE IX. AMENDMENT; TERMINATION; MERGER
9.1 AMENDMENT AND TERMINATION
The board of directors of the Company, in its absolute discretion, without
notice, at any time and from time to time, may modify and amend, in whole or in
part, any or all of the provisions of this Plan, or suspend or terminate it
entirely; provided, that no such modification, amendment, suspension, or
termination may, without the consent of a Participant (or his Beneficiary in
the case of the death of a Participant), reduce the right of a Participant (or
his Beneficiary as the case may be) to a distribution to which he is otherwise
entitled in accordance with the provisions of the Plan prior to such change.
Such action of the board of directors of the Company shall be binding upon all
other Employers. In the event of a termination of the Plan, no further deferral
elections may be made under the Plan, and amounts which are then payable, or
which become payable under the terms of the Plan, shall be paid as scheduled in
accordance with the provisions of the Plan; provided, however, that the Company
reserves the right, in its sole discretion, to accelerate payments to the
affected Participants in the event of a complete or partial termination of the
Plan.
9.2 MERGER, CONSOLIDATION, OR SALE OF ASSETS
In the event that an Employer should be liquidated, dissolved, or become a
party to a merger or consolidation where the Employer is not the surviving
corporation, the Plan with respect to such Employer shall terminate at the time
of such event, unless the successor or acquiring corporation shall elect to
continue and carry on the Plan. In the event such Plan termination occurs, the
provisions of Section 9.1 relating to Plan terminations shall become
applicable, provided that any successor or acquiring corporation may elect to
accelerate payments with respect to its Employees under the Plan.
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ARTICLE X. PARTICIPATION IN AND WITHDRAWAL FROM THE PLAN BY AN EMPLOYER
10.1 ADOPTION PROCEDURE
With the consent of the Company, any Affiliate which is providing Bonuses
and/or salary to its Employees may adopt this Plan for a select group of
management or highly compensated persons in its employment on express condition
that the Company assumes no liability as a result of any such adoption of this
Plan by any other organization and its employees. Such other organization may
adopt this Plan by--
(a) executing an adoption instrument adopting the Plan with respect
to all or any particular classification or classifications of
persons in its employment, and agreeing to be bound as a
participating Affiliate by all the terms, provisions, conditions,
and limitations of the Plan; and
(b) compiling and submitting all information required by the Company
with reference to persons in its employment eligible for
membership in the Plan.
The adoption instrument executed by any such organization may contain such
changes and variations in Plan terms as may be acceptable to the Company. The
adoption instrument shall specify the effective date of such adoption of the
Plan and the name of the Plan as it pertains to such adopting organization and
its Employees and shall become, as to such organization and persons in its
employment, a part of this Plan. However, the sole, exclusive right to amend or
terminate the Plan is reserved by the board of directors of the Company. It
shall not be necessary for the adopting Affiliate to sign or execute the
original or then amended Plan document. The participating Affiliate shall
assume all the rights, obligations, and liabilities of an Employer under the
Plan. The administrative powers and control of the Company, as provided in the
Plan, including the sole right to administer, amend, or terminate the Plan,
shall not be diminished by reason of the participation of any such adopting
Affiliate.
10.2 WITHDRAWAL FROM THE PLAN
Any participating Employer other than the Company, by action of its board of
directors or other governing body, may elect to withdraw from the Plan by
giving 90 days' advance written notice of its election to the board of
directors of the Company, unless the board of directors of the Company waives
such advance notice or agrees to a shorter advance notice period. Such
Employer's election to withdraw from the Plan shall be subject to the
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consent of the board of directors of the Company. The board of directors of the
Company may in its absolute discretion terminate the participation of any
Employer at any time.
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ARTICLE XI. GENERAL PROVISIONS
11.1 BENEFICIARY DESIGNATION
A Participant shall designate a Beneficiary or Beneficiaries who, upon his
death, are to receive payments that otherwise would have been paid to him under
the Plan. All Beneficiary designations shall be in writing and on a form
prescribed by the Committee for such purpose, and any such designation shall
only be effective if and when delivered to the Committee during the lifetime of
the Participant. A Participant may from time to time during his lifetime change
a designated Beneficiary or Beneficiaries by filing a new Beneficiary
designation form with the Committee. If a designated Beneficiary dies after the
Participant, but before all death benefit payments relating to such Beneficiary
have been paid, the remainder of such death benefit payments shall be continued
to such Beneficiary's estate. In the event a Participant shall fail to
designate a Beneficiary or Beneficiaries with respect to any death benefit
payments, or if for any reason such designation shall be ineffective, in whole
or in part, or if no designated Beneficiary survives the Participant, any
payment that otherwise would have been paid to such Participant shall be paid
to his estate, and in such event, his estate shall be his Beneficiary with
respect to such payments.
11.2 NONALIENATION
No benefit payable at any time under the Plan shall be subject in any manner to
alienation, sale, transfer, assignment, pledge, attachment, garnishment, or
encumbrance of any kind, and shall not be subject to or reached by any legal or
equitable process (including execution, garnishment, attachment, pledge, or
bankruptcy) in satisfaction of any debt, liability, or obligation, prior to
receipt. Any attempt to alienate, sell, transfer, assign, pledge, or otherwise
encumber any such benefit, whether presently or thereafter payable, shall be
void. Notwithstanding the foregoing provisions of this Section 11.2, no
benefit amount payable under the Plan shall be payable until and unless any and
all amounts representing debts or other obligations owed to the Company or
other Affiliate by the Participant with respect to whom such amount would
otherwise be payable shall have been fully paid. At the time of any payment,
the Company has the right to offset the payment by any such debts or
obligations.
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11.3 EMPLOYER-EMPLOYEE RELATIONSHIP
The establishment of this Plan shall not be construed as conferring any legal
or other rights upon any Employee or any person for a continuation of
employment, nor shall it interfere with the rights of an Employer to discharge
any Employee or otherwise act with relation to the Employee. An Employer may
take any action (including discharge) with respect to any Employee or other
person and may treat such person without regard to the effect which such action
or treatment might have upon such person as a Participant under this Plan. No
provision in this Plan shall entitle an Employee to participate in or receive a
Bonus.
11.4 INCOMPETENCE
Every person receiving or claiming benefits under the Plan shall be
conclusively presumed to be mentally competent until the date on which the
Committee receives a written notice, in a form and manner acceptable to the
Committee, that such person is incompetent, and that a guardian, conservator,
or other person legally vested with the care of such person's person or estate
has been appointed; provided, however, that if the Committee shall find that
any person to whom a benefit is payable under the Plan is unable to care for
such person's affairs because of incompetency, any payment due (unless a prior
claim therefor shall have been made by a duly appointed legal representative)
may be paid to the spouse, a child, a parent, or a brother or sister, or to any
person deemed by the Committee to have incurred expense for such person
otherwise entitled to payment. Any such payment so made shall be a complete
discharge of liability therefor under the Plan.
11.5 BINDING ON EMPLOYER, EMPLOYEE, AND THEIR SUCCESSORS
This Plan shall be binding upon and inure to the benefit of the Employer, its
successors and assigns, and the Employee, his heirs, executors, administrators,
and legal representatives. The provisions of this Plan shall be applicable with
respect to each Employer separately, and amounts payable hereunder shall be
paid by the Employer of the particular Employee with respect to the relevant
Deferral Amounts, Matching Amount, and Credited Earnings.
11.6 SEVERABILITY
In the event any provision of the Plan shall be held invalid or illegal for any
reason, any illegality or invalidity shall not affect the remaining parts of
the Plan, but the Plan shall be construed and enforced as if the illegal or
invalid provision had never been inserted, and the Company shall have the
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privilege and opportunity to correct and remedy such questions of illegality or
invalidity by amendment as provided in the Plan.
11.7 APPLICABLE LAW
The Plan shall be governed and construed in accordance with the laws of the
State of Ohio, except to the extent such laws are preempted by any applicable
Federal law.
* * * * * * * * * *
IN WITNESS WHEREOF, R. G. Barry Corporation has caused this instrument to be
executed by its duly authorized officers on this _______________ day of
_____________________________, 1995, effective as of September 1, 1995.
R. G. BARRY CORPORATION
By: ___________________________________
Vice President of Human Resources
By: ___________________________________
Senior Vice President of
Finance and Treasurer
By: ___________________________________
Vice President of Finance
and Assistant Treasurer
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