Annual Report — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K Annual Report 39± 167K
2: EX-10 Material Contract 63± 197K
3: EX-10 Material Contract 5± 20K
4: EX-10 Material Contract 25± 94K
5: EX-10 Material Contract 5± 19K
6: EX-11 Statement re: Computation of Earnings Per Share 1 7K
7: EX-13 Annual or Quarterly Report to Security Holders 49± 202K
8: EX-21 Subsidiaries of the Registrant 1 8K
9: EX-23 Consent of Experts or Counsel 1 8K
10: EX-27 Financial Data Schedule (Pre-XBRL) 1 9K
11: EX-27 Financial Data Schedule (Pre-XBRL) 1 11K
12: EX-27 Financial Data Schedule (Pre-XBRL) 1 10K
13: EX-99 Miscellaneous Exhibit 6± 32K
EX-10 — Material Contract
Exhibit 10.o
FINGERHUT CORPORATION
DEFERRED COMPENSATION PLAN
Effective January 1, 1998
Purpose
The purpose of this Plan is to provide specified benefits to
a select group of management and highly compensated Employees who
contribute materially to the continued growth, development and
future business success of Fingerhut Corporation, a Minnesota
corporation, and its subsidiaries, if any, that sponsor this Plan.
This Plan shall be unfunded for tax purposes and for purposes of
Title I of ERISA.
ARTICLE 1
Definitions
For purposes of this Plan, unless otherwise clearly apparent
from the context, the following phrases or terms shall have the
following indicated meanings:
1.1 "Account Balance" shall mean, with respect to a Participant,
a credit on the records of the Employer equal to the sum of
(i) the Deferral Account balance, (ii) the vested Company
Contribution Account balance and (iii) the vested Company
Restoration Account balance. The Account Balance, and each
other specified account balance, shall be a bookkeeping entry
only and shall be utilized solely as a device for the
measurement and determination of the amounts to be paid to a
Participant, or his or her designated Beneficiary, pursuant
to this Plan.
1.2 "Annual Bonus" shall mean any compensation, in addition to
Base Annual Salary relating to services performed during any
calendar year, whether or not paid in such calendar year or
included on the Federal Income Tax Form W-2 for such calendar
year, payable to a Participant as an Employee under any
Employer's annual bonus and cash incentive plans, excluding
stock options and severance pay or other payments made on
account of an Employee's Termination of Employment.
1.3 "Annual Company Contribution Amount" shall mean, for any one
Plan Year, the amount determined in accordance with Section
3.5.
1.4 "Annual Company Restoration Amount" for any one Plan Year
shall be the amount determined in accordance with Section
3.6.
1.5 "Annual Deferral Amount" shall mean that portion of a
Participant's Base Annual Salary and Annual Bonus that a
Participant elects to have, and is deferred, in accordance
with Article 3, for any one Plan Year. In the event of a
Participant's Termination of Employment prior to the end of a
Plan Year, such year's Annual Deferral Amount shall be the
actual amount withheld prior to such event.
1.6 "Annual Installment Method" shall be an annual installment
payment over the number of years selected by the Participant
in accordance with this Plan, calculated as follows: The
Account Balance of the Participant shall be calculated as of
the close of business on the last business day of the year.
The annual installment shall be calculated by multiplying
this balance by a fraction, the numerator of which is one,
and the denominator of which is the remaining number of
annual payments due the Participant. By way of example, if
the Participant elects a 10 year Annual Installment Method,
the first payment shall be 1/10 of the Account Balance,
calculated as described in this definition. The following
year, the payment shall be 1/9 of the Account Balance,
calculated as described in this definition. Each annual
installment shall be paid on or as soon as practicable after
the last business day of the applicable year.
1.7 "Base Annual Salary" shall mean the annual cash compensation
relating to services performed during any calendar year,
whether or not paid in such calendar year or included on the
Federal Income Tax Form W-2 for such calendar year, excluding
bonuses, commissions, overtime, fringe benefits, stock
options, relocation expenses, incentive payments, non-
monetary awards, directors fees and other fees, automobile
and other allowances paid to a Participant for employment
services rendered (whether or not such allowances are
included in the Employee's gross income), and severance pay
or other payments an account of the Employee's Termination of
Employment. Base Annual Salary shall be calculated before
reduction for compensation voluntarily deferred or
contributed by the Participant pursuant to all qualified or
non-qualified plans of any Employer and shall be calculated
to include amounts not otherwise included in the
Participant's gross income under Code Sections 125,
402(e)(3), 402(h), or 403(b) pursuant to plans established by
any Employer; provided, however, that all such amounts will
be included in compensation only to the extent that, had
there been no such plan, the amount would have been payable
in cash to the Employee.
1.8 "Beneficiary" shall mean one or more persons, trusts, estates
or other entities, designated in accordance with Article 7,
that are entitled to receive benefits under this Plan upon
the death of a Participant.
1.9 "Beneficiary Designation Form" shall mean the form
established from time to time by the Committee that a
Participant completes, signs and returns to the Committee to
designate one or more Beneficiaries.
1.10 "Board" shall mean the board of directors of the Company.
1.11 "Change in Control" shall mean the first to occur of any of
the following events:
(a) Any "person" (as that term is used in Section 13 and
14(d)(2) of the Securities Exchange Act of 1934
("Exchange Act")) becomes the beneficial owner (as that
term is used in Section 13(d) of the Exchange Act),
directly or indirectly, of 50% or more of the Parent's
capital stock entitled to vote in the election of
directors;
(b) During any period of not more than two consecutive
years, not including any period prior to the adoption of
this Plan, individuals who at the beginning of such
period constitute the board of directors of the Parent,
and any new director (other than a director designated
by a person who has entered into an agreement with the
Parent to effect a transaction described in clause (a),
(c), (d) or (e) of this Section 1.11) whose election by
the board of directors or nomination for election by the
Parent's stockholders was approved by a vote of at least
three-fourths (3/4ths) of the directors then still in
office who either were directors at the beginning of the
period or whose election or nomination for election was
previously so approved, cease for any reason to
constitute at least a majority thereof;
(c) The shareholders of the Parent approve any consolidation
or merger of the Parent, other than a consolidation or
merger of the Parent in which the holders of the common
stock of the Parent immediately prior to the
consolidation or merger hold more than 50% of the common
stock of the surviving corporation immediately after the
consolidation or merger;
(d) The shareholders of the Parent approve any plan or
proposal for the liquidation or dissolution of the
Parent; or
(e) The shareholders of the Parent approve the sale or
transfer of all or substantially all of the assets of
the Parent to parties that are not within a "controlled
group of corporations" (as defined in Code Section 1563)
in which the Parent is a member.
1.12 "Claimant" shall have the meaning set forth in Section 12.1.
1.13 "Code" shall mean the Internal Revenue Code of 1986, as it
may be amended from time to time.
1.14 "Committee" shall mean the committee described in Article 10.
1.15 "Company" shall mean Fingerhut Corporation, a Minnesota
corporation, and any successor to all or substantially all of
the Company's assets or business.
1.16 "Company Contribution Account" shall mean (i) the sum of the
Participant's Annual Company Contribution Amounts, plus (ii)
amounts credited in accordance with all the applicable
crediting provisions of this Plan that relate to the
Participant's Company Contribution Account, less (iii) all
distributions made to the Participant or his or her
Beneficiary pursuant to this Plan that relate to the
Participant's Company Contribution Account.
1.17 "Company Restoration Account" shall mean (i) the sum of all
of a Participant's Annual Company Restoration Amounts, plus
(ii) amounts credited in accordance with all the applicable
crediting provisions of this Plan that relate to the
Participant's Company Restoration Account, less (iii) all
distributions made to the Participant or his or her
Beneficiary pursuant to this Plan that relate to the
Participant's Company Restoration Account.
1.18 "Deduction Limitation" shall mean the following described
limitation on a benefit that may otherwise be distributable
pursuant to the provisions of this Plan. Except as otherwise
provided, this limitation shall be applied to all
distributions that are "subject to the Deduction Limitation"
under this Plan. If an Employer determines in good faith
prior to a Change in Control that there is a reasonable
likelihood that any compensation paid to a Participant for a
taxable year of the Employer would not be deductible by the
Employer solely by reason of the limitation under Code
Section 162(m), then to the extent deemed necessary by the
Employer to ensure that the entire amount of any distribution
to the Participant pursuant to this Plan prior to the Change
in Control is deductible, the Employer may defer all or any
portion of a distribution under this Plan. Any amounts
deferred pursuant to this limitation shall continue to be
credited/debited with additional amounts in accordance with
Section 3.9 below, even if such amount is being paid out in
installments. The amounts so deferred and amounts credited
thereon shall be distributed to the Participant or his or her
Beneficiary (in the event of the Participant's death) at the
earliest possible date, as determined by the Employer in good
faith, on which the deductibility of compensation paid or
payable to the Participant for the taxable year of the
Employer during which the distribution is made will not be
limited by Section 162(m), or if earlier, the effective date
of a Change in Control. Notwithstanding anything to the
contrary in this Plan, the Deduction Limitation shall not
apply to any distributions made after a Change in Control.
1.19 "Deferral Account" shall mean (i) the sum of all of a
Participant's Annual Deferral Amounts, plus (ii) amounts
credited in accordance with all the applicable crediting
provisions of this Plan that relate to the Participant's
Deferral Account, less (iii) all distributions made to the
Participant or his or her Beneficiary pursuant to this Plan
that relate to his or her Deferral Account.
1.20 "Disability" shall mean a period of disability during which a
Participant qualifies for permanent disability benefits under
the Participant's Employer's long-term disability plan, or,
if a Participant does not participate in such a plan, a
period of disability during which the Participant would have
qualified for permanent disability benefits under such a plan
had the Participant been a participant in such a plan, as
determined in the sole discretion of the Committee. If the
Participant's Employer does not sponsor such a plan, or
discontinues to sponsor such a plan, Disability shall be
determined by the Committee in its sole discretion.
1.21 "Election Form" shall mean the form established from time to
time by the Committee that a Participant completes, signs and
returns to the Committee to make an election under the Plan.
1.22 "Employee" shall mean a person who is an employee of any
Employer.
1.23 "Employer(s)" shall mean the Company and/or any of its
subsidiaries (now in existence or hereafter formed or
acquired) that have been selected by the Board to participate
in the Plan and have adopted the Plan as a sponsor.
1.24 "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as it may be amended from time to time.
1.25 "Parent" shall mean Fingerhut Companies, Inc., a Minnesota
corporation, and any successor to all or substantially all of
the Parent's assets or business.
1.26 "Participant" shall mean any Employee (i) who is selected by
the Committee to participate in the Plan, (ii) who elects to
participate in the Plan, (iii) who signs a Plan Agreement, an
Election Form and a Beneficiary Designation Form, (iv) whose
signed Plan Agreement, Election Form and Beneficiary
Designation Form are accepted by the Committee, (v) who
commences participation in the Plan, and (vi) whose Plan
Agreement has not terminated. A spouse or former spouse of a
Participant shall not be treated as a Participant in the Plan
or have an account balance under the Plan, even if he or she
has an interest in the Participant's benefits under the Plan
as a result of applicable law or property settlements
resulting from legal separation, divorce, or otherwise.
1.27 "Plan" shall mean the Company's Deferred Compensation Plan,
which shall be evidenced by this instrument and by each Plan
Agreement, as they may be amended from time to time.
1.28 "Plan Agreement" shall mean a written agreement, as may be
amended from time to time, which is entered into by and
between an Employer and a Participant. Each Plan Agreement
executed by a Participant and the Participant's Employer
shall provide for the entire benefit to which such
Participant is entitled under the Plan; should there be more
than one Plan Agreement, the Plan Agreement bearing the
latest date of acceptance by the Employer shall supersede all
previous Plan Agreements in their entirety and shall govern
such entitlement. The terms of any Plan Agreement may be
different for any Participant, and any Plan Agreement may
provide additional benefits not set forth in the Plan or
limit the benefits otherwise provided under the Plan;
provided, however, that any such additional benefits or
benefit limitations must be agreed to by both the Employer
and the Participant.
1.29 "Plan Year" shall mean a period beginning on January 1 of
each calendar year and continuing through December 31 of such
calendar year.
1.30 "Qualified Plans" shall mean the Fingerhut Corporation Profit
Sharing and 401(k) Savings Plan, dated March 28, 1969,
amended and restated July 1, 1997 (the "401(k) Plan"), the
Fingerhut Corporation Fixed Contribution Retirement Plan,
effective July 1, 1997 (the "Fixed Contribution Plan"), the
Fingerhut Corporation Pension Plan, dated June 30, 1966,
amended and restated March 26, 1990 (the "Pension Plan"), the
Figi's Inc. Profit Sharing and 401(k) Savings Plan, effective
July 5, 1981, amended and restated October 1, 1997 (the
"Figi's 401(k) Plan") and the Figi's Inc. Employees Pension
Plan, effective July 5, 1981 (the "Figi's Pension Plan"), as
they may be further amended from time to time.
1.31 "Short-Term Payout" shall mean the payout set forth in
Section 4.1.
1.32 "Termination Benefit" shall mean the benefit set forth in
Article 5.
1.33 "Termination of Employment" shall mean the severance from
employment with all Employers, voluntarily or involuntarily,
for any reason (including death, Disability or retirement)
other than an authorized leave of absence.
1.34 "Trust" shall mean one or more trusts established pursuant to
that certain Fingerhut Corporation Deferred Compensation Plan
Trust, dated as of January 1, 1998 between the Company and
the trustee named therein, as amended from time to time.
ARTICLE 2
Selection, Enrollment, Eligibility
2.1 Selection by Committee. Participation in the Plan shall be
limited to a select group of management and highly compensated
Employees of the Employers, as determined by the Committee in its
sole discretion. From that group, the Committee shall select, in
its sole discretion, Employees who are eligible to participate in
the Plan.
2.2 Enrollment Requirements. As a condition to participation,
each selected Employee shall complete, execute and return to the
Committee a Plan Agreement, an Election Form and a Beneficiary
Designation Form, all within 30 days after he or she is selected
to participate in the Plan. In addition, the Committee shall
establish from time to time such other enrollment requirements as
it determines in its sole discretion are necessary or desirable.
2.3 Eligibility; Commencement of Participation. Provided an
Employee selected to participate in the Plan has met all
enrollment requirements set forth in this Plan and required by the
Committee, including returning all required documents to the
Committee within the specified time period, that Employee shall
commence participation in the Plan as soon as practical, generally
two weeks after the Employee completes all enrollment
requirements. If an Employee fails to meet all such requirements
within the period required, in accordance with Section 2.2, that
Employee shall not be eligible to participate in the Plan until
the first day of the Plan Year following the delivery to and
acceptance by the Committee of the required documents.
2.4 Termination of Participation and/or Deferrals. If the
Committee determines in good faith that a Participant no longer
qualifies as a member of a select group of management or highly
compensated employees, as membership in such group is determined
in accordance with Sections 201(2), 301(a)(3) and 401(a)(1) of
ERISA, the Committee shall have the right, in its sole discretion,
to (i) terminate any deferral election the Participant has made
for the remainder of the Plan Year in which the Participant's
membership status changes, (ii) prevent the Participant from
making future deferral elections and/or (iii) immediately
distribute the Participant's then Account Balance in the same
manner as a Termination Benefit and terminate the Participant's
participation in the Plan.
ARTICLE 3
Deferral Commitments/Crediting/Taxes
3.1 Minimum Deferrals.
(a) Base Annual Salary and Annual Bonus. For each Plan
Year, a Participant may elect to defer, as his or her
Annual Deferral Amount, Base Annual Salary and/or Annual
Bonus in the following combined minimum amount:
Deferral Minimum Amount
Base Annual Salary $ 0
Annual Bonus $ 0
Combined Total $2,500
If an election is made for less than the stated combined
minimum amount, or if no election is made, the amount
deferred shall be zero.
(b) Short Plan Year. Notwithstanding the foregoing, if a
Participant first becomes a Participant after the first day of a
Plan Year, or in the case of the first Plan Year of the Plan
itself, the minimum deferral shall be an amount equal to the
minimum set forth above, multiplied by a fraction, the numerator
of which is the number of complete months remaining in the Plan
Year and the denominator of which is 12.
3.2 Maximum Deferral.
(a) Base Annual Salary and/or Annual Bonus. For each Plan
Year, a Participant may elect to defer, as his or her
Annual Deferral Amount, Base Annual Salary and/or Annual
Bonus up to the following maximum percentages for each
deferral elected:
Deferral Maximum
Percentage
Base Annual Salary 25%
Annual Bonus 100%
(b) Short Plan Year. Notwithstanding the foregoing, if a
Participant first becomes a Participant after the first day of a
Plan Year, or in the case of the first Plan Year of the Plan
itself, the maximum Annual Deferral Amount, with respect to Base
Annual Salary and Annual Bonus shall be limited to the amount of
compensation not yet earned by the Participant as of the date the
Participant submits a Plan Agreement and Election Form to the
Committee for acceptance.
3.3 Election to Defer; Effect of Election Form
(a) First Plan Year. In connection with a Participant's
commencement of participation in the Plan, the
Participant shall make an irrevocable deferral election
for the Plan Year in which the Participant commences
participation in the Plan, along with such other
elections as the Committee deems necessary or desirable
under the Plan. For these elections to be valid, the
Election Form must be completed and signed by the
Participant, timely delivered to the Committee (in
accordance with Section 2.2 above) and accepted by the
Committee.
(b) Subsequent Plan Years. For each succeeding Plan Year,
an irrevocable deferral election for that Plan Year, and
such other elections as the Committee deems necessary or
desirable under the Plan, shall be made by timely
delivering to the Committee, in accordance with its
rules and procedures, before the end of the Plan Year
preceding the Plan Year for which the election is made,
a new Election Form. If no such Election Form is timely
delivered for a Plan Year, the Annual Deferral Amount
shall be zero for that Plan Year.
3.4 Withholding of Annual Deferral Amounts. For each Plan Year,
the Base Annual Salary portion of the Annual Deferral Amount
shall be withheld from each regularly scheduled Base Annual
Salary payroll in equal amounts, as adjusted from time to
time for increases and decreases in Base Annual Salary. The
Annual Bonus portion of the Annual Deferral Amount shall be
withheld at the time the Annual Bonus is or otherwise would
be paid to the Participant, whether or not this occurs during
the Plan Year itself.
3.5 Annual Company Contribution Amount. For each Plan Year, an
Employer, in its sole discretion, may, but is not required
to, credit any amount it desires to any Participant's Company
Contribution Account under this Plan, which amount shall be
for that Participant the Annual Company Contribution Amount
for that Plan Year. The amount so credited to a Participant
may be smaller or larger than the amount credited to any
other Participant, and the amount credited to any Participant
for a Plan Year may be zero, even though one or more other
Participants receive an Annual Company Contribution Amount
for that Plan Year. The Annual Company Contribution Amount,
if any, shall be credited as of the last day of the Plan
Year. If a Participant is not employed by an Employer as of
the last day of a Plan Year, the Annual Company Contribution
Amount for that Plan Year shall be zero.
3.6 Annual Company Restoration Amount. A Participant's Annual
Company Restoration Amount for any Plan Year shall be equal
to the actuarial equivalent present value of the benefits, as
determined by the Committee in its reasonable discretion,
that the Participant would have accrued during the Plan Year
under the Qualified Plans, but for the Participant's
participation in this Plan.
3.7 Investment of Trust Assets. The Trustee of the Trust shall
be authorized, upon written instructions received from the
Committee or investment manager appointed by the Committee,
to invest and reinvest the assets of the Trust in accordance
with the applicable Trust Agreement, including the
disposition of stock and reinvestment of the proceeds in one
or more investment vehicles designated by the Committee.
3.8 Vesting.
(a) A Participant shall at all times be 100% vested in his or her
Deferral Account.
(b) A Participant shall be vested in his or her Company
Contribution Account in accordance with the schedule, if any,
contained in his or her Plan Agreement.
(c) A Participant shall be vested in his or her Company
Restoration Account as follows: (i) the Participant shall at all
times be 100% vested in the portion of his or her Company
Restoration Account related to the 401(k) Plan, the Fixed
Contribution Plan and the Figi's 401(k) Plan; (ii) the
Participant shall be vested in the portion of his or her Company
Restoration Account related to the Pension Plan in accordance with
the Pension Plan's vesting schedule, as determined by the
Committee in its reasonable discretion; and (iii) the Participant
shall be vested in the portion of his or her Company Restoration
Account related to the Figi's Pension Plan in accordance with the
Figi's Pension Plan's vesting schedule, as determined by the
Committee in its reasonable discretion .
(d) Notwithstanding anything to the contrary contained in this
Section 3.8, in the event of a Change in Control, or a
Participant's death or Disability, the Participant's Company
Contribution Account and Company Restoration Account shall
immediately become 100% vested (if it is not already vested in
accordance with the above vesting schedules).
(e) Notwithstanding subsection (d), the vesting schedule for a
Participant's Company Contribution Account and Company Restoration
Account shall not be accelerated to the extent that the Committee
determines that such acceleration would cause the deduction
limitations of Section 280G of the Code to become effective. In
the event that all of a Participant's Company Contribution Account
and/or Company Restoration Account is not vested pursuant to such
a determination, the Participant may request independent
verification of the Committee's calculations with respect to the
application of Section 280G. In such case, the Committee must
provide to the Participant within 15 business days of such a
request an opinion from a nationally recognized accounting firm
selected by the Participant (the "Accounting Firm"). The opinion
shall state the Accounting Firm's opinion that any limitation in
the vested percentage hereunder is necessary to avoid the limits
of Section 280G and contain supporting calculations. The cost of
such opinion shall be paid for by the Company.
3.9 Crediting/Debiting of Account Balances. In accordance with,
and subject to, the rules and procedures that are established
from time to time by the Committee, in its sole discretion,
amounts shall be credited or debited to a Participant's
Account Balance in accordance with the following rules:
(a) Election of Measurement Funds. A Participant, in
connection with his or her initial deferral election in
accordance with Section 3.3(a) above, shall elect, on
the Election Form, one or more Measurement Fund(s) (as
described in Section 3.9(c) below) to be used to
determine the additional amounts to be credited to his
or her Account Balance for the first day in which the
Participant commences participation in the Plan and
continuing thereafter for each subsequent day in which
the Participant participates in the Plan, unless changed
in accordance with the next sentence. Commencing with
the first day that follows the Participant's
commencement of participation in the Plan and continuing
thereafter for each subsequent day in which the
Participant participates in the Plan, the Participant
may (but is not required to) elect, in accordance with
the rules adopted by the Committee, to add or delete one
or more Measurement Fund(s) to be used to determine the
additional amounts to be credited to his or her Account
Balance, or to change the portion of his or her Account
Balance allocated to each previously or newly elected
Measurement Fund. If an election is made in accordance
with the previous sentence, it shall apply to the next
business day and continue thereafter for each subsequent
day in which the Participant participates in the Plan,
unless changed in accordance with the previous sentence.
(b) Proportionate Allocation. In making any election
described in Section 3.9(a) above, the Participant shall
specify, in accordance with the rules adopted by the
Committee, in increments of five percentage points (5%),
the percentage of his or her Account Balance to be
allocated to a Measurement Fund (as if the Participant
was making an investment in that Measurement Fund with
that portion of his or her Account Balance).
(c) Measurement Funds. The Participant may elect one or
more of the following measurement funds, based on
certain mutual funds (the "Measurement Funds"), for the
purpose of crediting additional amounts to his or her
Account Balance:
(1) Putnam Money Market Fund;
(2) Dodge & Cox Balanced Fund;
(3) The Putnam Fund for Growth and Income;
(4) Putnam Vista Fund;
(5) UAM ICM Small Company Portfolio; and
(6) Ivy International Fund.
As necessary, the Committee may, in its sole discretion,
discontinue, substitute or add a Measurement Fund. Each
such action will take effect no sooner than thirty (30)
days after the day on which the Committee gives
Participants advance written notice of such change.
(d) Crediting or Debiting Method. The performance of each
elected Measurement Fund (either positive or negative)
will be determined by the Committee, in its reasonable
discretion, based on the performance of the Measurement
Funds themselves. A Participant's Account Balance shall
be credited or debited on a daily basis based on the
performance of each Measurement Fund selected by the
Participant, as determined by the Committee in its sole
discretion, as though (i) a Participant's Account
Balance were invested in the Measurement Fund(s)
selected by the Participant, in the percentages
applicable to such day, at the closing price on such
date; (ii) the portion of the Annual Deferral Amount
that was actually deferred during any day were invested
in the Measurement Fund(s) selected by the Participant,
in the percentages applicable to such day, no later than
the close of business on the fifteenth business day
after the day on which such amounts are actually
deferred from the Participant's Base Annual Salary
through reductions in his or her payroll, at the closing
price on such date; and (iii) any distribution made to a
Participant that decreases such Participant's Account
Balance ceased being invested in the Measurement
Fund(s), in the percentages applicable to such day, no
earlier than fifteen business days prior to the
distribution, at the closing price on such date. The
Participant's Annual Company Contribution Amount and
Annual Company Restoration Amount shall be credited to
his or her Annual Company Contribution Account and
Company Restoration Account, respectively, for purposes
of this Section 3.9(d) no later than the close of
business on the last business day in March of the Plan
Year following the Plan Year to which they relate.
(e) No Actual Investment. Notwithstanding any other
provision of this Plan that may be interpreted to the
contrary, the Measurement Funds are to be used for
measurement purposes only, and a Participant's election
of any such Measurement Fund, the allocation to his or
her Account Balance thereto, the calculation of
additional amounts and the crediting or debiting of such
amounts to a Participant's Account Balance shall not be
considered or construed in any manner as an actual
investment of his or her Account Balance in any such
Measurement Fund. In the event that the Company or the
Trustee (as that term is defined in the Trust), in its
own discretion, decides to invest funds in any or all of
the Measurement Funds, no Participant shall have any
rights in or to such investments themselves. Without
limiting the foregoing, a Participant's Account Balance
shall at all times be a bookkeeping entry only and shall
not represent any investment made on his or her behalf
by the Company or the Trust; the Participant shall at
all times remain an unsecured creditor of the Company.
3.10 FICA and Other Taxes.
(a) Annual Deferral Amounts. For each Plan Year in which an
Annual Deferral Amount is being withheld from a
Participant, the Participant's Employer(s) shall
withhold from that portion of the Participant's Base
Annual Salary and Bonus that is not being deferred, in a
manner determined by the Employer(s), the Participant's
share of FICA and other employment taxes on such Annual
Deferral Amount. If necessary, the Committee may reduce
the Annual Deferral Amount in order to comply with this
Section 3.10.
(b) Company Contribution Account and Company Restoration
Account. For each Plan Year in which a Participant
becomes vested in a portion of his or her Company
Contribution Account or Company Restoration Account, the
Participant's Employer(s) shall withhold from the
Participant's Base Annual Salary and/or Bonus that is
not deferred, in a manner determined by the Employer(s),
the Participant's share of FICA and other employment
taxes. If necessary, the Committee may reduce the
vested portion of the Participant's Company Contribution
Account and Company Restoration Account in order to
comply with this Section 3.10.
3.11 Distributions. The Participant's Employer(s), or the trustee
of the Trust, shall withhold from any payments made to a
Participant under this Plan all federal, state and local
income, employment and other taxes required to be withheld by
the Employer(s), or the trustee of the Trust, in connection
with such payments, in amounts and in a manner to be
determined in the sole discretion of the Employer(s) and the
trustee of the Trust.
ARTICLE 4
Short-Term Payout; Withdrawal Election
4.1 Short-Term Payout. In connection with each election to defer
an Annual Deferral Amount, a Participant may irrevocably elect to
receive a future "Short-Term Payout" from the Plan with respect to
any portion of such Annual Deferral Amount. Subject to the
Deduction Limitation, the Short-Term Payout shall be a lump sum
payment in an amount that is equal to the Annual Deferral Amount,
or elected portion thereof, plus amounts credited or debited in
the manner provided in Section 3.8 above on that portion or
amount, determined at the time that the Short-Term Payout becomes
payable (rather than the date of a Termination of Employment).
Subject to the Deduction Limitation and the other terms and
conditions of this Plan, each Short-Term Payout elected shall be
paid out during a 30 day period commencing on January 1, 2005 or
any subsequent fifth anniversary of such January 1 (i.e, January
1, 2010, 2015, 2020, etc.); provided, however, the January 1 must
be more than five (5) years and must be ten (10) years or less
from the January 1 of the Plan Year in which the Annual Deferral
Amount is initially deferred. By way of examples, if a five
Short-Term Payout is elected for Annual Deferral Amounts that are
deferred in the Plan Year commencing January 1, 1998, the date for
distribution of the Short-Term Payout must be January 1, 2005. If
a Short-Term Payout is elected for Annual Deferral Amounts that
are deferred in the Plan Year commencing January 1, 2000, the date
for distribution of the Short-Term Payout must be January 1, 2010.
4.2 Other Benefits Take Precedence Over Short-Term. Should an
event occur that triggers payment of a Termination Benefit under
Article 5, any Annual Deferral Amount, plus amounts credited or
debited thereon, that is subject to a Short-Term Payout election
under Section 4.1 shall not be paid in accordance with Section 4.1
but shall be paid in accordance with Article 5.
4.3 Withdrawal Election. A Participant (or, after a
Participant's death, his or her Beneficiary) may elect, at any
time, to withdraw all of his or her Account Balance, calculated as
if there had occurred a Termination of Employment as of the day of
the election, less a withdrawal penalty equal to 10% of such
amount (the net amount shall be referred to as the "Withdrawal
Amount"). This election can be made at any time, before or after
Termination of Employment, and whether or not the Participant (or
Beneficiary) is in the process of being paid pursuant to an
installment payment schedule. If made before Termination of
Employment, a Participant's Withdrawal Amount shall be his or her
Account Balance calculated as if there had occurred a Termination
of Employment as of the day of the election. No partial
withdrawals of the Withdrawal Amount shall be allowed. The
Participant (or his or her Beneficiary) shall make this election
by giving the Committee advance written notice of the election in
a form determined from time to time by the Committee. The
Participant (or his or her Beneficiary) shall be paid the
Withdrawal Amount within 60 days of his or her election. Once the
Withdrawal Amount is paid, the Participant's participation in the
Plan shall terminate and the Participant shall not be eligible to
participate in the Plan during the remainder of that Plan Year and
the next three (3) Plan Years. The payment of this Withdrawal
Amount shall not be subject to the Deduction Limitation.
ARTICLE 5
Termination Benefit
5.1 Termination Benefit. Subject to the Deduction Limitation and
the provisions of Section 5.2, a Participant who experiences a
Termination of Employment shall receive, as a Termination Benefit,
his or her Account Balance.
5.2 Payment of Termination Benefit. A Participant, in connection
with his or her commencement of participation in the Plan, shall
elect on an Election Form to receive the Termination Benefit in a
lump sum or pursuant to an Annual Installment Method over 2, 3, 4,
5, 6, 7, 8, 9 or 10 years. The Participant may change his or her
election to another allowable alternative payout period by
submitting a new Election Form to the Committee, provided that any
such Election Form is submitted at least 18 months prior to the
Participant's Termination of Employment and is accepted by the
Committee in its sole discretion. The Election Form most recently
accepted by the Committee and submitted at least 18 months prior
to Termination of Employment shall govern the payout of the
Termination Benefit. If a Participant does not make any election
with respect to the payment of the Termination Benefit, then such
benefit shall be payable in a lump sum. The lump sum payment
shall be made, or installment payments shall commence, no later
than 30 days after the last day of the Plan Year in which the
Participant experiences the Termination of Employment. Any
payment made shall be subject to the Deduction Limitation.
5.3 Termination of Employment due to Death. If a Participant
experiences a Termination of Employment due to death, the
Participant's Termination Benefit payments shall be paid to the
Participant's Beneficiary (a) over the same number of years and in
the same amounts as that benefit would have been paid to the
Participant had the Participant survived, or (b) in a lump sum, if
requested by the Beneficiary and allowed in the sole discretion of
the Committee, that is equal to the Participant's Account Balance.
5.4 Death after Termination of Employment. If a Participant dies
after Termination of Employment but before the Termination Benefit
is paid in full, the Participant's unpaid Termination Benefit
payments shall continue and shall be paid to the Participant's
Beneficiary (a) over the remaining number of years and in the same
amounts as that benefit would have been paid to the Participant
had the Participant survived, or (b) in a lump sum, if requested
by the Beneficiary and allowed in the sole discretion of the
Committee, that is equal to the Participant's Account Balance.
ARTICLE 6
Disability Waiver and Benefit
6.1 Disability Waiver.
(a) Waiver of Deferral. A Participant who is determined by
the Committee to be suffering from a Disability shall be
excused from fulfilling that portion of the Annual
Deferral Amount commitment that would otherwise have
been withheld from a Participant's Base Annual Salary
and/or Annual Bonus for the Plan Year during which the
Participant first suffers a Disability. During the
period of Disability, the Participant shall not be
allowed to make any additional deferral elections, but
will continue to be considered a Participant for all
other purposes of this Plan.
(b) Return to Work. If a Participant returns to employment
with an Employer, after a Disability ceases, the
Participant may elect to defer an Annual Deferral Amount
for the Plan Year following his or her return to
employment or service and for every Plan Year thereafter
while a Participant in the Plan; provided such deferral
elections are otherwise allowed and an Election Form is
delivered to and accepted by the Committee for each such
election in accordance with Section 3.3 above.
6.2 Continued Eligibility; Benefit . A Participant suffering a
Disability shall, for benefit purposes under this Plan,
continue to be considered to be employed and shall be
eligible for the benefits provided for in Articles 4 or 5 in
accordance with the provisions of those Articles.
Notwithstanding the above, the Committee shall have the right
to, in its sole and absolute discretion and for purposes of
this Plan only deem the Participant to have experienced a
Termination of Employment at any time after such Participant
is determined to be suffering a Disability, in which case the
Participant shall receive a Termination Benefit equal to his
or her Account Balance at the time of the Committee's
determination. The Termination Benefit shall be paid in
accordance with the payment method selected by the
Participant under Section 5.2 above. Any payment made shall
be subject to the Deduction Limitation.
ARTICLE 7
Beneficiary Designation
7.1 Beneficiary. Each Participant shall have the right, at any
time, to designate his or her Beneficiary(ies) (both primary
as well as contingent) to receive any benefits payable under
the Plan to a Beneficiary upon the death of a Participant.
The Beneficiary designated under this Plan may be the same as
or different from the Beneficiary designation under any other
plan of an Employer in which the Participant participates.
7.2 Beneficiary Designation; Change; Spousal Consent. A
Participant shall designate his or her Beneficiary by
completing and signing the Beneficiary Designation Form, and
returning it to the Committee or its designated agent. A
Participant shall have the right to change a Beneficiary by
completing, signing and otherwise complying with the terms of
the Beneficiary Designation Form and the Committee's rules
and procedures, as in effect from time to time. If the
Participant names someone other than his or her spouse as a
Beneficiary, a spousal consent, in the form designated by the
Committee, must be signed by that Participant's spouse and
returned to the Committee. Upon the acceptance by the
Committee of a new Beneficiary Designation Form, all
Beneficiary designations previously filed shall be canceled.
The Committee shall be entitled to rely on the last
Beneficiary Designation Form filed by the Participant and
accepted by the Committee prior to his or her death.
7.3 Acknowledgment. No designation or change in designation of a
Beneficiary shall be effective until received and
acknowledged in writing by the Committee or its designated
agent.
7.4 No Beneficiary Designation. If a Participant fails to
designate a Beneficiary as provided in Sections 7.1, 7.2 and
7.3 above or, if all designated Beneficiaries predecease the
Participant or die prior to complete distribution of the
Participant's benefits, then the Participant's designated
Beneficiary shall be deemed to be his or her surviving
spouse. If the Participant has no surviving spouse, the
benefits remaining under the Plan to be paid to a Beneficiary
shall be payable to the executor or personal representative
of the Participant's estate.
7.5 Doubt as to Beneficiary. If the Committee has any doubt as
to the proper Beneficiary to receive payments pursuant to
this Plan, the Committee shall have the right, exercisable in
its discretion, to cause the Participant's Employer to
withhold such payments until this matter is resolved to the
Committee's satisfaction.
7.6 Discharge of Obligations. The payment of benefits under the
Plan to a Beneficiary shall fully and completely discharge
all Employers and the Committee from all further obligations
under this Plan with respect to the Participant, and that
Participant's Plan Agreement shall terminate upon such full
payment of benefits.
ARTICLE 8
Leave of Absence
8.1 Paid Leave of Absence. If a Participant is authorized by the
Participant's Employer for any reason to take a paid leave of
absence from the employment of the Employer, the Participant
shall continue to be considered employed by the Employer and
the Annual Deferral Amount shall continue to be withheld
during such paid leave of absence in accordance with
Section 3.3.
8.2 Unpaid Leave of Absence. If a Participant is authorized by
the Participant's Employer for any reason to take an unpaid
leave of absence from the employment of the Employer, the
Participant shall continue to be considered employed by the
Employer and the Participant shall be excused from making
deferrals until the earlier of the date the leave of absence
expires or the Participant returns to a paid employment
status. Upon such expiration or return, deferrals shall
resume for the remaining portion of the Plan Year in which
the expiration or return occurs, based on the deferral
election, if any, made for that Plan Year. If no election
was made for that Plan Year, no deferral shall be withheld.
ARTICLE 9
Termination, Amendment or Modification
9.1 Termination. Although each Employer anticipates that it will
continue the Plan for an indefinite period of time, there is
no guarantee that any Employer will continue the Plan or will
not terminate the Plan at any time in the future.
Accordingly, each Employer reserves the right to discontinue
its sponsorship of the Plan and/or to terminate the Plan at
any time with respect to any or all of its participating
Employees, by action of its board of directors. Upon the
termination of the Plan with respect to any Employer, the
Plan Agreements of the affected Participants who are employed
by that Employer shall terminate and their Account Balances,
determined as if they had experienced a Termination of
Employment on the date of Plan termination, shall be paid to
the Participants as follows: Prior to a Change in Control,
if the Plan is terminated with respect to all of its
Participants, an Employer shall have the right, in its sole
discretion, and notwithstanding any elections made by the
Participant, to pay such benefits in a lump sum or pursuant
to an Annual Installment Method of up to 10 years, with
amounts credited and debited during the installment period as
provided herein. If the Plan is terminated with respect to
less than all of its Participants, an Employer shall be
required to pay such benefits in a lump sum. For a Plan
Termination arising after a Change in Control, the Employer
shall be required to pay such benefits in a lump sum. The
termination of the Plan shall not adversely affect any
Participant or Beneficiary who has become entitled to the
payment of any benefits under the Plan as of the date of
termination; provided however, that the Employer shall have
the right in its sole discretion to accelerate installment
payments without a premium or prepayment penalty by paying
the Account Balance in a lump sum or pursuant to an Annual
Installment Method using fewer years.
9.2 Amendment. Any Employer may, at any time, amend or modify
the Plan in whole or in part with respect to that Employer by
the action of its board of directors; provided, however,
that: (i) no amendment or modification shall be effective to
decrease or restrict the value of a Participant's Account
Balance in existence at the time the amendment or
modification is made, calculated as if the Participant had
experienced a Termination of Employment as of the effective
date of the amendment or modification, and (ii) no amendment
or modification of this Section 9.2 or Section 10.2 of the
Plan shall be effective. The amendment or modification of
the Plan shall not affect any Participant or Beneficiary who
has become entitled to the payment of benefits under the Plan
as of the date of the amendment or modification; provided,
however, that the Employer shall have the right in its sole
discretion to accelerate installment payments by paying the
Account Balance in a lump sum or pursuant to an Annual
Installment Method using fewer years (provided that the
present value of all payments that will have been received by
a Participant at any given point of time under the different
payment schedule shall equal or exceed the present value of
all payments that would have been received at that point in
time under the original payment schedule).
9.3 Plan Agreement. Despite the provisions of Sections 9.1 and
9.2 above, if a Participant's Plan Agreement contains
benefits or limitations that are not in this Plan document,
the Employer may only amend or terminate such provisions with
the consent of the Participant.
9.4 Effect of Payment. The full payment of the applicable
benefit under Articles 4, 5, or 6 of the Plan shall
completely discharge all obligations of the Employer(s) to a
Participant and his or her designated Beneficiaries under
this Plan and the Participant's Plan Agreement shall
terminate.
ARTICLE 10
Administration
10.1 Committee Duties. Except as otherwise provided in this
Article 10, the Administrator shall delegate administration
of this Plan to a Committee which shall consist of the Board,
or such committee as the Board shall appoint. Members of the
Committee may be Participants under this Plan. Except as
limited by the Administrator, the Committee shall also have
the discretion and authority to (i) make, amend, interpret,
and enforce all appropriate rules and regulations for the
administration of this Plan and (ii) decide or resolve any
and all questions including interpretations of this Plan, as
may arise in connection with the Plan. Any individual
serving on the Committee who is a Participant shall not vote
or act on any matter relating solely to himself or herself.
When making a determination or calculation, the Committee
shall be entitled to rely on information furnished by a
Participant or the Company.
10.2 Administration Upon Change In Control. For purposes of this
Plan, the Company shall be the "Administrator" at all times
prior to the occurrence of a Change in Control. Upon and
after the occurrence of a Change in Control, the
"Administrator" shall be an independent third party selected
by the trustee of the Trust and approved by the individual
who, immediately prior to such event, was the Company's Chief
Executive Officer or, if not so identified, the Company's
highest ranking officer (the "Ex-CEO"). The Administrator
shall have the discretionary power to determine all questions
arising in connection with the administration of the Plan and
the interpretation of the Plan and Trust including, but not
limited to benefit entitlement determinations; provided,
however, upon and after the occurrence of a Change in
Control, the Administrator shall have no power to direct the
investment of Trust assets or select any investment manager
or custodial firm for the Trust. Upon and after the
occurrence of a Change in Control, the Company must: (1) pay
all reasonable administrative expenses and fees of the
Administrator; (2) indemnify the Administrator against any
costs, expenses and liabilities including, without
limitation, attorney's fees and expenses arising in
connection with the performance of the Administrator
hereunder, except with respect to matters resulting from the
gross negligence or willful misconduct of the Administrator
or its employees or agents; and (3) supply full and timely
information to the Administrator or all matters relating to
the Plan, the Trust, the Participants and their
Beneficiaries, the Account Balances of the Participants, the
date of circumstances of the Termination of Employment of the
Participants, and such other pertinent information as the
Administrator may reasonably require. Upon and after a
Change in Control, the Administrator may be terminated (and a
replacement appointed) by the trustee of the Trust only with
the approval of the Ex-CEO. Upon and after a Change in
Control, the Administrator may not be terminated by the
Company.
10.3 Agents. In the administration of this Plan, the Committee
may, from time to time, employ agents and delegate to them
such administrative duties as it sees fit (including acting
through a duly appointed representative) and may from time to
time consult with counsel who may be counsel to any Employer.
10.4 Binding Effect of Decisions. The decision or action of the
Administrator with respect to any question arising out of or
in connection with the administration, interpretation and
application of the Plan and the rules and regulations
promulgated hereunder shall be final and conclusive and
binding upon all persons having any interest in the Plan.
10.5 Indemnity of Committee. All Employers shall indemnify and
hold harmless the members of the Committee, any Employee to
whom the duties of the Committee may be delegated, and the
Administrator against any and all claims, losses, damages,
expenses or liabilities arising from any action or failure to
act with respect to this Plan, except in the case of willful
misconduct by the Committee, any of its members, any such
Employee or the Administrator.
10.6 Employer Information. To enable the Committee and/or
Administrator to perform its functions, the Company and each
Employer shall supply full and timely information to the
Committee and/or Administrator, as the case may be, on all
matters relating to the compensation of its Participants, the
date and circumstances of the Disability or Termination of
Employment of its Participants, and such other pertinent
information as the Committee or Administrator may reasonably
require.
ARTICLE 11
Other Benefits and Agreements
11.1 Coordination with Other Benefits. The benefits provided for
a Participant and Participant's Beneficiary under the Plan
are in addition to any other benefits available to such
Participant under any other plan or program for employees of
the Participant's Employer. The Plan shall supplement and
shall not supersede, modify or amend any other such plan or
program except as may otherwise be expressly provided.
ARTICLE 12
Claims Procedures
12.1 Presentation of Claim. Any Participant or Beneficiary of a
deceased Participant (such Participant or Beneficiary being
referred to below as a "Claimant") may deliver to the
Committee a written claim for a determination with respect to
the amounts distributable to such Claimant from the Plan. If
such a claim relates to the contents of a notice received by
the Claimant, the claim must be made within 60 days after
such notice was received by the Claimant. All other claims
must be made within 180 days of the date on which the event
that caused the claim to arise occurred. The claim must
state with particularity the determination desired by the
Claimant.
12.2 Notification of Decision. The Committee shall consider a
Claimant's claim within a reasonable time after filing the
claim, and, not later than 90 days after filing shall notify
the Claimant in writing:
(a) that the Claimant's requested determination has been
made, and that the claim has been allowed in full; or
(b) that the Committee has reached a conclusion contrary, in
whole or in part, to the Claimant's requested
determination, and such notice must set forth in a
manner calculated to be understood by the Claimant:
(i) the specific reason(s) for the denial of the claim,
or any part of it;
(ii) specific reference(s) to pertinent provisions of
the Plan upon which such denial was based;
(iii) a description of any additional material or
information necessary for the Claimant to perfect
the claim, and an explanation of why such material
or information is necessary; and
(iv) an explanation of the claim review procedure set
forth in Section 12.3 below.
12.3 Review of a Denied Claim. Within 60 days after receiving a
notice from the Committee that a claim has been denied, in
whole or in part, a Claimant (or the Claimant's duly
authorized representative) may file with the Committee a
written request for a review of the denial of the claim.
Thereafter, but not later than 30 days after the review
procedure began, the Claimant (or the Claimant's duly
authorized representative):
(a) may review pertinent documents;
(b) may submit written comments or other documents; and/or
(c) may request a hearing, which the Committee, in its sole
discretion, may grant.
12.4 Decision on Review. The Committee shall render its decision
on review promptly, and not later than 60 days after the
filing of a written request for review of the denial, unless
a hearing is held or other special circumstances require
additional time, in which case the Committee's decision must
be rendered within 120 days after such date. Such decision
must be written in a manner calculated to be understood by
the Claimant, and it must contain:
(a) specific reasons for the decision;
(b) specific reference(s) to the pertinent Plan provisions
upon which the decision was based; and
(c) such other matters as the Committee deems relevant.
12.5 Legal Action. A Claimant's compliance with the foregoing
provisions of this Article 14 is a mandatory prerequisite to
a Claimant's right to commence any legal action with respect
to any claim for benefits under this Plan.
ARTICLE 13
Trust
13.1 Establishment of the Trust. The Company shall establish the
Trust, and each Employer shall at least annually transfer
over to the Trust such assets as the Employer determines, in
its sole discretion, are necessary to provide, on a present
value basis, for its respective future liabilities created
with respect to the Annual Deferral Amounts, Annual Company
Contribution Amounts and Annual Company Restoration Amounts
for such Employer's Participants for all periods prior to the
transfer, as well as any debits and credits to the
Participants' Account Balances for all periods prior to the
transfer, taking into consideration the value of the assets
in the trust at the time of the transfer.
13.2 Interrelationship of the Plan and the Trust. The provisions
of the Plan and the Plan Agreement shall govern the rights of
a Participant to receive distributions pursuant to the Plan.
The provisions of the Trust shall govern the rights of the
Employers, Participants and the creditors of the Employers to
the assets transferred to the Trust. Each Employer shall at
all times remain liable to carry out its obligations under
the Plan.
13.3 Distributions From the Trust. Each Employer's obligations
under the Plan may be satisfied with Trust assets distributed
pursuant to the terms of the Trust, and any such distribution
shall reduce the Employer's obligations under this Plan.
ARTICLE 14
Miscellaneous
14.1 Status of Plan. The Plan is intended to be a plan that is
not qualified within the meaning of Code Section 401(a) and
that "is unfunded and is maintained by an employer primarily
for the purpose of providing deferred compensation for a
select group of management or highly compensated employee"
within the meaning of ERISA Sections 201(2), 301(a)(3) and
401(a)(1). The Plan shall be administered and interpreted to
the extent possible in a manner consistent with that intent.
14.2 Unsecured General Creditor. Participants and their Bene
ficiaries, heirs, successors and assigns shall have no legal
or equitable rights, interests or claims in any property or
assets of an Employer. For purposes of the payment of
benefits under this Plan, any and all of an Employer's assets
shall be, and remain, the general, unpledged unrestricted
assets of the Employer. An Employer's obligation under the
Plan shall be merely that of an unfunded and unsecured
promise to pay money in the future.
14.3 Employer's Liability. An Employer's liability for the
payment of benefits shall be defined only by the Plan and the
Plan Agreement, as entered into between the Employer and a
Participant. An Employer shall have no obligation to a
Participant under the Plan except as expressly provided in
the Plan and his or her Plan Agreement.
14.4 Nonassignability. Neither a Participant nor any other person
shall have any right to commute, sell, assign, transfer,
pledge, anticipate, mortgage or otherwise encumber, transfer,
hypothecate, alienate or convey in advance of actual receipt,
the amounts, if any, payable hereunder, or any part thereof,
which are, and all rights to which are expressly declared to
be, unassignable and non-transferable. No part of the
amounts payable shall, prior to actual payment, be subject to
seizure, attachment, garnishment or sequestration for the
payment of any debts, judgments, alimony or separate
maintenance owed by a Participant or any other person, be
transferable by operation of law in the event of a
Participant's or any other person's bankruptcy or insolvency
or be transferable to a spouse as a result of a property
settlement or otherwise.
14.5 Not a Contract of Employment. The terms and conditions of
this Plan shall not be deemed to constitute a contract of
employment between any Employer and the Participant. Such
employment is hereby acknowledged to be an "at will"
employment relationship that can be terminated at any time
for any reason, or no reason, with or without cause, and with
or without notice, unless expressly provided in a written
employment agreement. Nothing in this Plan shall be deemed
to give a Participant the right to be retained in the service
of any Employer as an Employee, or to interfere with the
right of any Employer to discipline or discharge the
Participant at any time.
14.6 Furnishing Information. A Participant or his or her
Beneficiary will cooperate with the Committee by furnishing
any and all information requested by the Committee and take
such other actions as may be requested in order to facilitate
the administration of the Plan and the payments of benefits
hereunder, including but not limited to taking such physical
examinations as the Committee may deem necessary.
14.7 Terms. Whenever any words are used herein in the masculine,
they shall be construed as though they were in the feminine
in all cases where they would so apply; and whenever any
words are used herein in the singular or in the plural, they
shall be construed as though they were used in the plural or
the singular, as the case may be, in all cases where they
would so apply.
14.8 Captions. The captions of the articles, sections and
paragraphs of this Plan are for convenience only and shall
not control or affect the meaning or construction of any of
its provisions.
14.9 Governing Law. Subject to ERISA, the provisions of this Plan
shall be construed and interpreted according to the internal
laws of the State of Minnesota without regard to its
conflicts of laws principles.
14.10 Notice. Any notice or filing required or permitted to
be given to the Committee under this Plan shall be sufficient
if in writing and hand-delivered, or sent by registered or
certified mail, to the address below:
Fingerhut Corporation
Benefits Department - Tom Segal
4400 Baker Road
Minnetonka, Minnesota 55422
Such notice shall be deemed given as of the date of delivery
or, if delivery is made by mail, as of the date shown on the
postmark on the receipt for registration or certification.
Any notice or filing required or permitted to be given to a
Participant under this Plan shall be sufficient if in writing
and hand-delivered, or sent by mail, to the last known
address of the Participant.
14.11 Successors. The provisions of this Plan shall bind and
inure to the benefit of the Participant's Employer and its
successors and assigns and the Participant and the
Participant's designated Beneficiaries.
14.12 Spouse's Interest. The interest in the benefits
hereunder of a spouse of a Participant who has predeceased
the Participant shall automatically pass to the Participant
and shall not be transferable by such spouse in any manner,
including but not limited to such spouse's will, nor shall
such interest pass under the laws of intestate succession.
14.13 Validity. In case any provision of this Plan shall be
illegal or invalid for any reason, said illegality or
invalidity shall not affect the remaining parts hereof, but
this Plan shall be construed and enforced as if such illegal
or invalid provision had never been inserted herein.
14.14 Incompetent. If the Committee determines in its
discretion that a benefit under this Plan is to be paid to a
minor, a person declared incompetent or to a person incapable
of handling the disposition of that person's property, the
Committee may direct payment of such benefit to the guardian,
legal representative or person having the care and custody of
such minor, incompetent or incapable person. The Committee
may require proof of minority, incompetence, incapacity or
guardianship, as it may deem appropriate prior to
distribution of the benefit. Any payment of a benefit shall
be a payment for the account of the Participant and the
Participant's Beneficiary, as the case may be, and shall be a
complete discharge of any liability under the Plan for such
payment amount.
14.15 Court Order. The Committee is authorized to make any
payments directed by court order in any action in which the
Plan or the Committee has been named as a party. In
addition, if a court determines that a spouse or former
spouse of a Participant has an interest in the Participant's
benefits under the Plan in connection with a property
settlement or otherwise, the Committee, in its sole
discretion, shall have the right, notwithstanding any
election made by a Participant, to immediately distribute the
spouse's or former spouse's interest in the Participant's
benefits under the Plan to that spouse or former spouse.
14.16 Distribution in the Event of Taxation.
(a) In General. If, for any reason, all or any portion of a
Participant's benefits under this Plan becomes taxable
to the Participant prior to receipt, a Participant may
petition the Committee before a Change in Control, or
the trustee of the Trust after a Change in Control, for
a distribution of that portion of his or her benefit
that has become taxable. Upon the grant of such a
petition, which grant shall not be unreasonably withheld
(and, after a Change in Control, shall be granted), a
Participant's Employer shall distribute to the
Participant immediately available funds in an amount
equal to the taxable portion of his or her benefit
(which amount shall not exceed a Participant's unpaid
Account Balance under the Plan). If the petition is
granted, the tax liability distribution shall be made
within 90 days of the date when the Participant's
petition is granted. Such a distribution shall affect
and reduce the benefits to be paid under this Plan.
(b) Trust. If the Trust terminates in accordance with
Section 3.6(e) of the Trust and benefits are distributed
from the Trust to a Participant in accordance with that
Section, the Participant's benefits under this Plan
shall be reduced to the extent of such distributions.
14.17 Insurance. The Employers, on their own behalf or on
behalf of the trustee of the Trust, and, in their sole
discretion, may apply for and procure insurance on the life
of the Participant, in such amounts and in such forms as the
Trust may choose. The Employers or the trustee of the Trust,
as the case may be, shall be the sole owner and beneficiary
of any such insurance. The Participant shall have no
interest whatsoever in any such policy or policies, and at
the request of the Employers shall submit to medical
examinations and supply such information and execute such
documents as may be required by the insurance company or
companies to whom the Employers have applied for insurance.
14.18 Legal Fees To Enforce Rights After Change in Control.
The Company and each Employer is aware that upon the
occurrence of a Change in Control, the Board or the board of
directors of a Participant's Employer (which might then be
composed of new members) or a shareholder of the Company or
the Participant's Employer, or of any successor corporation
might then cause or attempt to cause the Company, the
Participant's Employer or such successor to refuse to comply
with its obligations under the Plan and might cause or
attempt to cause the Company or the Participant's Employer to
institute, or may institute, litigation seeking to deny
Participants the benefits intended under the Plan. In these
circumstances, the purpose of the Plan could be frustrated.
Accordingly, if, following a Change in Control, it should
appear to any Participant that the Company, the Participant's
Employer or any successor corporation has failed to comply
with any of its obligations under the Plan or any agreement
thereunder or, if the Company, such Employer or any other
person takes any action to declare the Plan void or
unenforceable or institutes any litigation or other legal
action designed to deny, diminish or to recover from any
Participant the benefits intended to be provided, then the
Company and the Participant's Employer irrevocably authorize
such Participant to retain counsel of his or her choice at
the expense of the Company and the Participant's Employer
(who shall be jointly and severally liable) to represent such
Participant in connection with the initiation or defense of
any litigation or other legal action, whether by or against
the Company, the Participant's Employer or any director,
officer, shareholder or other person affiliated with the
Company, the Participant's Employer or any successor thereto
in any jurisdiction.
IN WITNESS WHEREOF, the Company has signed this Plan document
as of __________, 199_.
"Company"
Fingerhut Corporation,
a Minnesota corporation
By: ______________________________
Title:
______________________________
Dates Referenced Herein and Documents Incorporated by Reference
| This ‘10-K’ Filing | | Date | | Other Filings |
|---|
| |  |
| | 1/1/20 | | None on these Dates |
| | 1/1/15 |
| | 1/1/10 |
| | 1/1/05 |
| | 1/1/00 |
| Filed on: | | 3/25/98 |
| | 1/1/98 |
| For Period End: | | 12/31/97 |
| | 10/1/97 |
| | 7/1/97 |
| List all Filings |
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