Attached files
| file | filename |
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| 10-Q - OIL DRI CORPORATION OF AMERICA 10-Q - Oil-Dri Corp of America | oildri10q.htm |
| EX-31 - EXHIBIT 31 - Oil-Dri Corp of America | exh31.htm |
| EX-11 - EXHIBIT 11 - Oil-Dri Corp of America | exh11.htm |
| EX-32 - EXHIBIT 32 - Oil-Dri Corp of America | exh32.htm |
Exhibit
10.2:
As
Recommended, Adopted and Approved by the Compensation
Committee
and the Board of Directors on October 15, 2008
OIL-DRI
CORPORATION OF AMERICA
SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN
AMENDED
AND RESTATED EFFECTIVE JANUARY 1, 2009
FOREWORD
Oil-Dri
Corporation of America (the “Company”) originally adopted this Supplemental
Executive Retirement Plan (the “Plan”) for the benefit of certain of its
executives, effective April 1, 2003. Effective January 1, 2009, the
Company adopts this amendment and restatement of the Plan in compliance with the
requirements of Section 409A of the Internal Revenue Code (the “Code”) and final
Treasury regulations issued thereunder.
The
Excess Benefit provided under the Plan is intended to be an “excess benefit
plan” as defined in Section 3(36) of the Employee Retirement Income Security Act
of 1974, as amended (ERISA), and the Supplemental Benefit provided under the
Plan is intended to be a deferred compensation plan for “a select group of
management or highly compensated employees” as that term is used in ERISA and
the Plan shall be interpreted and administered to the extent possible in a
manner consistent with that intent. The terms of this Plan, as
amended and restated, apply to all benefits earned under the Plan, regardless of
whether such benefits were earned and vested as of December 31,
2004.
The
purpose of the Plan is to provide certain retired participants in the Oil-Dri
Corporation of America Pension Plan (“Retirement Plan”) with the amount of
benefits that would have been provided under the Retirement Plan but
for:
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1.
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the
limitations on benefits imposed by Section 415 of the Code,
and/or
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2.
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the
limitation on compensation for purposes of calculating benefits under the
Retirement Plan imposed by Section 401(a)(17) of the
Code.
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ARTICLE 1 -
Definitions
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1.1
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Except
to the extent otherwise indicated herein, or to the extent otherwise
inappropriate in the context, the definitions contained in Article II of
the Retirement Plan are applicable under this
Plan.
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1.2
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“Affiliate”
means any corporation or enterprise, other than the Company, which, as of
a given date, is a member of the same controlled group of corporations,
the same group of trades or businesses under common control, or the same
affiliated service group, determined in accordance with Sections 414(b),
(c), (m) and (o) of the Code, as is the
Company.
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1.3
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“Committee”
means the persons appointed by the Company as the Administrative Committee
of the Retirement Plan.
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1.4
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“Company”
means Oil-Dri Corporation of America, a corporation organized and existing
under the laws of the State of Delaware and having its principal office in
Chicago, Illinois. The Board of Directors of the Company or the
Compensation Committee or any other authorized committee of the Board of
Directors shall act on behalf of the
Company.
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1.5
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“Excess
Benefit” means the excess, if any, of the Retirement Benefit which would
have been payable to or with respect to a Participant under the Retirement
Plan had the limitations on benefits imposed by Section 415 of the Code
not been applicable, over the Retirement Benefit actually payable to or
with respect to the Participant under the Retirement
Plan.
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1.6
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“Participant”
means an individual who is eligible to receive benefits under the Plan as
set forth in
Article 2.1.
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1.7
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“Plan”
means this Oil-Dri Corporation of America Supplemental Executive
Retirement Plan, as amended, modified, or restated from time to
time.
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1.8
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“Retirement
Benefit” means, as the context requires, the benefit payable from the
Retirement Plan.
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1.9
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“Retirement
Plan” means the Oil-Dri Corporation of America Pension Plan, as amended,
modified, or restated from time to
time.
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1.10
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“Separation
from Service” means the Participant’s death, retirement or other
termination of employment with the Company and all
Affiliates. For purposes of this definition, a “termination of
employment” shall occur when the facts and circumstances indicate that the
Company and the employee reasonably anticipate that no further services
would be performed by the employee for the Company or any Affiliate after
a certain date or that the level of bona fide services the employee would
perform after such date (whether as an employee or as an independent
contractor), would permanently decrease to no more than 20% of the average
level of bona fide services performed (whether as an employee or as an
independent contractor) over the immediately preceding 36-month period (or
full period of services to the Company and all Affiliates if the employee
has been providing services to the Company less than
36 months).
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1.11
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“Supplemental
Benefit” means the excess, if any, of the Retirement Benefit that would
have been payable to or with respect to a Participant under the Retirement
Plan had the amount of the Participant’s annual Compensation taken into
account for purposes of calculating benefits under the Retirement Plan not
been limited by Code Section 401(a)(17), over the sum of (a) the
Retirement Benefit actually payable to or with respect to the Participant
under the Retirement Plan and (b) any Excess Benefit payable under
this Plan.
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ARTICLE 2 -
Participation
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2.1
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Participation
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Each
Retirement Plan participant whose Accrued Benefit under the Retirement Plan is
limited by application of the limitations on benefits imposed by Code
Section 415 and/or the limitation on considered compensation imposed by
Code Section 401(a)(17) shall be a Participant in this
Plan. Participation in this Plan shall be limited to such Retirement
Plan participants.
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ARTICLE 3 -
Benefits
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3.1
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Excess
Benefit
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The
aggregate amount of Excess Benefit payable to or with respect to the Participant
shall be paid directly to such Participant or his or her Beneficiary from the
general assets of the Company in accordance with Articles 3.3 and
3.4.
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3.2
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Supplemental
Benefit
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The
aggregate amount of Supplemental Benefit payable to or with respect to the
Participant shall be paid directly to such Participant or his or her Beneficiary
from the general assets of the Company in accordance with Articles 3.3 and
3.4.
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3.3
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General
Provisions
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(a)
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The
Company shall make no provision for the funding of any Excess Benefits or
Supplemental Benefits payable
hereunder.
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(b)
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In
the event that the Company shall decide to establish an advance accrual
reserve on its books against the future expense of Excess Benefit or
Supplemental Benefit payments, such reserve shall not under any
circumstances be deemed to be an asset of the Plan but, at all times,
shall remain a part of the general assets of the Company, subject to
claims of the Company’s creditors.
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(c)
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The
Excess Benefit and/or Supplemental Benefit with respect to a Participant
shall be paid to the Participant or his or her Beneficiary in the form of
five substantially equal annual installments, with the first such
installment paid on or as soon as practicable after the first day of the
calendar month following the six-month anniversary of the Participant’s
Separation from Service and the remaining four annual installments paid
annually thereafter on or as soon as practicable following the first day
of the calendar month following the 18-month, 30-month, 42-month, and
54-month anniversaries of such Separation from Service. The
calculation of the annual installments shall be performed using the same
actuarial factors then utilized by the Retirement Plan for determining
actuarial equivalence. All federal, state, and local taxes that
the Committee determines are required to be withheld from any benefit
payments made under the Plan shall be
withheld.
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(d)
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Any
other provision of the Plan to the contrary notwithstanding, in the event
the present value of the vested combined Excess Benefit and Supplemental
Benefit with respect to a Participant who has a Separation from Service
does not exceed $50,000, payment of his or her benefit shall be made in a
lump sum on or as soon as administratively feasible after the first day of
the calendar month next following the six (6)-month anniversary of said
Separation from Service.
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(e)
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The
Excess Benefit and/or Supplemental Benefit shall be paid in accordance
with subsections (c) or (d) above regardless of whether the Participant is
a “specified employee” of the Company (as defined in Treasury Regulation
Section 1.409A-1(i)).
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(f)
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In
the event that the Retirement Plan shall be terminated, Excess Benefits
and/or Supplemental Benefits shall continue to be paid directly by the
Company as provided in subsections (c) or (d) above, but only with respect
to such benefits accrued as of the date of the Retirement Plan’s
termination.
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3.4
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Limitations
on Benefits
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(a)
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Any
Excess Benefit and any Supplemental Benefit under this Plan shall be
considered vested and nonforfeitable only if and when the Participant’s
Accrued Benefit under the Retirement Plan is vested and
nonforfeitable.
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(b)
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Notwithstanding
the foregoing, the Excess Benefit and/or Supplemental Benefit with respect
to a Participant shall be subject to adjustment by reason of changes in
Code Section 401(a)(17) and/or 415 affecting the Accrued Benefit payable
under the Retirement Plan.
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(c)
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Any
other provision of the Plan to the contrary notwithstanding, in no event
will any benefit be payable under the Plan with respect to a Participant
who terminates employment or retires, if such individual performs services
for a competitor of the Company, and such service is determined by the
Committee to violate any non-competition agreement signed by the
Participant.
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ARTICLE 4 -
Administration
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4.1
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Plan
Administrator
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The
Committee shall be the “administrator” of the Plan within the meaning of Section
3(16)(A) of ERISA.
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4.2
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Powers
of Plan Administrator
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The
Committee shall be vested with the general administration of the
Plan. The Committee shall have the exclusive right, and discretionary
authority, to interpret the Plan. The decisions, actions and records
of the Committee shall be conclusive and binding upon the Company, upon any
adopting Employers, and upon all persons having or claiming to have any right or
interest in or under the Plan.
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4.3
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Participation
by Subsidiary
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If any
entity is now or hereafter becomes a subsidiary or Affiliate of the Company and
becomes an adopting Employer under the Retirement Plan, the Company may
authorize such subsidiary or Affiliate to participate in this Plan upon
appropriate action by such entity necessary to adopt the Plan.
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4.4
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Claim
Procedure
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Any
Participant or Beneficiary, or his or her representative, who believes he or she
is entitled to payment of a benefit for which provision is made in the Plan
shall file a written claim with the Committee and shall furnish such evidence of
entitlement to benefits as the Committee may reasonably require. The
Committee shall notify the Participant or Beneficiary in writing as to the
amount of the benefit to which he or she is entitled, the duration of such
benefit, the time the benefit is to commence and other pertinent information
concerning his or her benefit. If a claim for a benefit is denied by
the Committee, in whole or in part, the Committee shall provide adequate notice
in writing to the Participant or Beneficiary whose claim for a benefit has been
denied within the 90-day period following receipt of the claim by the
Committee. If, under special circumstances, the Committee requires an
extension of time for processing the claim, written notice of the extension
shall be furnished to the claimant prior to the termination of the initial
90-day period. In no event shall such extension exceed a period of 90
days from the end of such initial period. If written notice of the
denial is not furnished in accordance with the above, the claim shall be deemed
denied and the claimant may proceed with an appeal of the denial, as provided
below. The written notice regarding the benefit denied shall set
forth (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; and (d) a statement that any appeal of the denial must be made
in writing to the Committee, within 60 days after receipt of the notice, which
must include a full description of the pertinent issues and the basis of the
appeal. If the Participant or Beneficiary fails to appeal such action
to the Committee in writing within the prescribed period of time, the
Committee’s determination shall be final, binding and conclusive.
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4.5
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Appeal
of Denial of Claim
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If the
Committee receives from a Participant or a Beneficiary, or his or her
representative, within the prescribed period of time, a notice of an appeal of
the denial of a claim for benefits, the Committee shall reconsider the claim,
and may hold a hearing or otherwise ascertain such facts as it deems necessary,
and shall render a decision which shall be binding upon both
parties. The decision of the Committee shall be in writing and a copy
thereof shall be sent by certified mail to the claimant within 60 days after the
receipt by the Committee of the notice of appeal, unless special circumstances
require an extension of such 60-day period, but in any event, not later than 120
days after receipt. If written notice of the denial on appeal of a
claim for benefits is not received within the 60- or 120-day period, as
applicable, then the claim shall be treated as a denied claim on
appeal.
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ARTICLE 5 -
Amendment and Termination
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5.1
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Amendment
of the Plan
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Subject
to the provisions of Article 5.3, the Plan may be wholly or partially amended or
otherwise modified at any time by the Company.
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5.2
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Termination
of the Plan
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Subject
to the provisions of Article 5.3, the Plan may be terminated at any time by the
Company.
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5.3
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No
Impairment of Benefits
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Notwithstanding
the provisions of Articles 5.1 and 5.2, no amendment to or termination of the
Plan shall impair any rights to Excess Benefits and Supplemental Benefits which
have accrued hereunder. In the event the Plan is terminated, any
Excess Benefits and Supplemental Benefits remaining will be distributed in such
manner as is determined by the Committee in its sole discretion.
ARTICLE 6 –
Incorporation of Retirement Plan by Reference
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6.1
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Incorporation
of Retirement Plan by Reference
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Except to
the extent otherwise indicated herein, the applicable provisions of the
Retirement Plan are hereby incorporated by reference into this
Plan.
ARTICLE 7 –
Miscellaneous
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7.1
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Non-Alienation
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No right
or benefit under the Plan shall be subject to anticipation, alienation, sale,
assignment, pledge, encumbrance or charge, and any attempt to anticipate,
alienate, sell, assign, pledge, encumber or charge the same shall be
void. No right or benefit under the Plan shall in any manner be
liable for or subject to the debts, contracts, liabilities or torts of the
person entitled to such benefit except such claims as may be made by the Company
or any Affiliate. Notwithstanding the foregoing, a Participant’s
Excess Benefit and/or Supplemental Benefit may be assigned or awarded to an
alternate payee pursuant to a domestic relations order the Committee determines
to be a “qualified domestic relations order” (or “QDRO”) described in Code
Section 414(p) and Treasury Regulation Section 1.409A-3(j)(4)(ii).
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7.2
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Unsecured
General Creditor
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Participants
and their Beneficiaries, heirs, successors and assigns shall have no legal or
equitable rights, interests or claims in any property or assets of the
Company. For purposes of the payment of benefits under the Plan, the
Company’s assets shall be, and remain, neither pledged nor restricted under or
as a result of the Plan. The Company’s obligation under the Plan
shall be merely that of an unfunded and unsecured promise to pay money in the
future. All amounts deferred and accrued under the Plan will be
unsecured liabilities of the Company. For purposes of this Section
7.2, all references to the “Company” shall be deemed to also refer to any
adopting Employer.
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7.3
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Court
Order
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If an
interest in a Participant’s Excess Benefit and/or Supplemental Benefit under the
Plan is assigned or awarded to an alternate payee pursuant to a QDRO, the QDRO
may provide for the immediate distribution to the alternate payee his or her
interest in such benefit in a lump sum.
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7.4
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Participant’s
Rights
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The
establishment of the Plan shall not be construed as giving any Participant the
right to be retained as an employee of the Company or any adopting Employer, or
the right to receive any benefits not specifically provided
herein. The Company and any adopting Employer shall have no
obligation to fund its obligations under the Plan. Nothing herein
shall be deemed to create a trust of any kind or to create any fiduciary
relationships.
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7.5
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Notice
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Any
notice authorized or required to be given to the Company under the Plan shall be
deemed given upon delivery in writing, signed by the person giving the notice,
to the General Counsel of the Company or such other officer as may be designated
by the Committee.
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7.6
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Applicable
Law
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To the
extent not preempted by the laws of the United States of America, the Plan shall
be governed by the laws of the State of Illinois without regard to its conflict
of laws rules.
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7.7
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Expenses
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The
expenses of administering the Plan shall be borne by the Company.
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7.8
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Incompetency
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If any
Participant or Beneficiary is, in the opinion of the Committee, legally
incapable of giving a valid receipt and discharge for any payment, the Committee
may, at its option, direct that such payment or any part thereof be made to such
person or persons who in the opinion of the Committee are caring for and
supporting such Participant or Beneficiary, unless it has received due notice of
claim from a duly appointed guardian or conservator of the estate of the
Participant or Beneficiary. A payment so made will be a complete
discharge of the obligations under the Plan.
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7.9
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Severability
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If any
provisions of the Plan shall be held illegal or invalid for any reason, said
illegality or invalidity shall not affect the remaining parts of the Plan, but
the Plan shall be construed and enforced as if said illegal and invalid
provisions had never been included herein.
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7.10
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Gender
and Number
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Masculine
gender shall include the feminine, and the singular shall include the plural,
unless the context clearly indicates otherwise.
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7.11
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Captions
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The
captions of the sections and paragraphs of the Plan are for convenience only and
shall not control or effect the meaning or construction of any of its
provisions.
IN
WITNESS WHEREOF, the Company has caused the Plan to be executed upon the
signature of its duly qualified officer as of the date first written
above.
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OIL-DRI
CORPORATION OF AMERICA
By:
/s/ Charles P.
Brissman
Its Vice President and General
Counsel
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ATTEST:
By: /s/ Angela M.
Hatseras
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