EXHIBIT 10.4
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WEINER'S STORES, INC. 2000
EXECUTIVE RETENTION PLAN
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I. POLICY STATEMENT:
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Weiner's Stores, Inc. (the "Company") hereby adopts the
Weiner's Stores, Inc. 2000 Executive Retention Plan for the benefit of certain
Eligible Employees of the Company. The purpose of the Plan is to provide
Participants with an incentive to remain employed with the Company. While the
Company intends to provide stable employment, conditions may arise which in the
judgment of management may necessitate the involuntary and permanent dismissal
of one or more employees because of a position elimination, reduction-in-force,
facility closing, sale of business, reorganization, consolidation, or other
similar action. On such occasions and under the terms and conditions stated
below, the Company shall grant Eligible Employees benefits to aid employees
during the period in which they are unemployed; or, in the event the Eligible
Employees remain employed with the Company on the applicable payment dates
specified herein, under the terms and conditions stated below, the Company shall
grant Eligible Employees benefits to reward such employees for remaining
employed with the Company. In all other cases of termination of employment, no
benefits will be provided.
This document serves as both the Plan document and as a
summary plan description of the Plan. There are no other Plan documents.
II. EFFECTIVE DATE:
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The Effective Date of the Plan is September 19, 2000. The Plan
supersedes any severance benefit policies, plans, practices or arrangements
applicable to Eligible Employees and which may have been in force prior to the
Effective Date, except to the extent that any such benefits are payable pursuant
to a written agreement between the Company and the Employee.
III. ELIGIBILITY:
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Employees employed by the Company with the following titles
shall be eligible for benefits in accordance with the provisions of this Plan:
Chief Executive Officer, President, Vice Presidents, Division Managers, District
Store Managers, Department Managers (but only if the Plan Administrator, in its
sole discretion, designates such persons as "Key" Department Managers) and
Managers (but only if the Plan Administrator, in its sole discretion, designates
such persons as "Key" Managers).
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IV. QUALIFICATION:
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An Eligible Employee qualifies for benefits under the Plan if:
(a) (i) the Eligible Employee's employment is permanently
terminated before the Plan Date by the Company for
any reason other than for Cause, or by the Eligible
Employee for Good Reason, or (ii) the Eligible
Employee remains employed with the Company through
the Plan Date (or, as applicable, the earlier
accelerated payment date specified in Section VII
below), and there is no material interruption in the
Eligible Employee's service to the Company between
the Effective Date and Plan Date (or such earlier
accelerated payment date); and
(b) if requested by the Company, the Eligible Employee
executes and returns a valid Waiver and Release of
Claims or other Separation Agreement which:
i) releases, to the maximum extent permitted by
law, all claims that relate to or arise out
of the Eligible Employee's employment or
termination of employment; and/or
ii) contains such other terms and conditions as
the Company in its sole discretion may
require; and
(c) the Eligible Employee is not disqualified under
Section V.
V. DISQUALIFICATION:
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An Eligible Employee is not entitled to receive benefits in
the following circumstances:
(a) the Company, in its sole discretion, terminates the
employment of the Eligible Employee for Cause; or
(b) the employment of an Eligible Employee terminates due
to the Eligible Employee's retirement, resignation
for any reason other than Good Reason, death or
disability. An Eligible Employee shall not be
disqualified from receiving a benefit if he/she
elects retirement to commence immediately following
termination of employment due to a qualifying event.
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VI. BENEFITS:
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(A) AMOUNT OF PAYMENT: If an Eligible Employee becomes
qualified to receive an award under the Plan, the Eligible Employee shall
receive a cash payment in an amount equal to the Eligible Employee's Award
Percentage multiplied by the Eligible Employee's annual Base Salary in effect as
of September 19, 2000.
(B) ADJUSTMENT OF PAYMENT: To the extent that a Federal, state
or local law may require the Company to make a payment to an Eligible Employee
or require a payment in lieu of notice (including but not limited to a payment
under the Worker Adjustment and Retraining Notification Act) because of that
Eligible Employee's termination of employment, any payment payable under the
Plan shall be reduced by the amount of the statutorily required payment.
However, there shall be no reduction in any payment on account of the Company's
payment to the Eligible Employee of any compensation or vacation pay earned on
or prior to the Termination Date.
(C) VACATION PAY: In accordance with the Company's vacation
policy, the Eligible Employee shall be entitled to be paid an amount equal to
his or her earned but unused vacation time as of the Termination Date. Vacation
accrual shall end on the Termination Date. If the Eligible Employee has taken
vacation in excess of his or her earned vacation time as of the Termination
Date, any payment awarded to the Eligible Employee shall be reduced by the
amount advanced as vacation pay for such period. Unused personal days and sick
days shall be forfeited on the Termination Date.
(D) GROUP INSURANCE CONTINUATION: Under the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA") an Eligible Employee whose
employment is terminated by the Company may, with certain exceptions provided in
COBRA, elect to continue group medical and dental insurance coverage for the
Eligible Employee and his or her dependents, at the Eligible Employee's expense,
for up to eighteen months after the Termination Date or for such shorter or
longer length of time as COBRA or similar state laws may permit. Nothing in this
Plan shall limit the Company's sole and exclusive right in its sole discretion
to modify, reduce or eliminate its group medical and dental insurance coverage
for its Employees at any time, with or without advance notice. The Company shall
provide the Eligible Employee additional written information regarding COBRA
rights at or near the Termination Date in accordance with COBRA.
(E) DEATH: If an Eligible Employee dies following the
Termination Date and following the effective date of any Waiver and Release of
Claims or Separation Agreement required by the Company, but prior to receipt of
the pay which has been awarded under the Plan, such payment shall be made to the
Eligible Employee's beneficiary as determined for purposes of the life insurance
coverage provided by the Company, if any, or, if no such beneficiary has been
named by the Eligible Employee, to the Eligible Employee's estate.
(F) OTHER BENEFITS: If the Company decides to award any
severance benefits other than severance pay to any Eligible Employee or group of
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Eligible Employees, then each such Eligible Employee shall receive such other
severance benefit(s) as shall be determined in the Company's sole discretion.
VII. METHOD OF PAYMENT:
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Payments under the Plan shall be paid in the form of one lump
sum payment (which shall be in the amount determined pursuant to Section VI.(a)
of the Plan, reduced by any amounts previously paid pursuant to the accelerated
payment schedule below), payable within five (5) business days after the
Applicable Date or, if sooner, pursuant to the accelerated payment schedule set
forth below, and in each case, if required of the Eligible Employee, following
the effective date (and after all periods for revocation have expired) of the
Waiver and Release of Claims or other Separation Agreement executed by the
Eligible Employee.
The Applicable Date will be accelerated such that partial
payments will be made as follows within five (5) business days after the dates
specified below (unless the Eligible Employee's employment is earlier terminated
by the Company for Cause or by the Employee for any reason other than Good
Reason, death or disability):
Percentage of Benefit Amount Paid Date Percentage Becomes Payable
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20% January 15, 2001
30% August 20, 2001
50% The Plan Date
VIII. INCOME TAXES:
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Payments under the Plan are subject to all applicable federal,
state and local tax withholding and generally are taxable income to the Eligible
Employee. Please consult with your personal tax advisor for more information.
IX. ADMINISTRATION OF PLAN:
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The Plan Administrator shall have the exclusive right, power,
and authority, in its sole and absolute discretion, to administer, apply and
interpret the Plan and to decide all matters arising in connection with the
operation or administration of the Plan. Without limiting the generality of the
foregoing, the Plan Administrator shall have the sole and absolute discretionary
authority:
o to take all actions and make all decisions, other than those made by
the Company, with respect to the eligibility for, and the amount of,
benefits payable under the Plan;
o to formulate, interpret and apply rules, regulations and policies
necessary to administer the Plan in accordance with its terms;
o to decide questions, including legal or factual questions, relating to
the calculation and payment of benefits under the Plan;
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o to resolve and/or clarify any ambiguities, inconsistencies and
omissions arising under the Plan; and
o except as specifically provided to the contrary in the Claims and
Review Procedures section, to process, and approve or deny, benefit
claims.
All determinations made by the Plan Administrator shall be
final and binding on all parties to the maximum extent permitted by law. All
determinations made by the Company referred to in the Plan shall be made by the
Company in its capacity as an employer and settlor of the Plan.
X. MODIFICATION OR TERMINATION OF PLAN:
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The Company reserves the right to amend or modify the Plan, in
whole or in part, by action of its Board of Directors; provided, however, that
the benefits provided for in the Plan are vested benefits and shall not be
terminated or reduced at any time after the Effective Date. The Plan supersedes
any severance benefit policies, plans, practices or arrangements applicable to
the Eligible Employees which may have been in force prior to the Effective Date,
except to the extent that any such benefits are payable pursuant to a written
employment or severance agreement between the Eligible Employee and the Company.
XI. CLAIMS AND REVIEW PROCEDURES:
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The Plan Administrator shall make a determination as to
whether a benefit under the Plan is to be provided to such Eligible Employee or
group of Eligible Employees, taking into consideration any determination made by
the Company as to whether and what benefits were to be awarded, any conditions
set by the Company regarding the award, and the circumstances regarding any
termination(s). The Plan Administrator shall advise any Eligible Employee it
determines is entitled to an award under the Plan and the amount of any such
award. No Employee may rely on any notification of entitlement to any benefit
from the Plan other than a written notification delivered to the Employee from
the Plan Administrator or an authorized designee of the Plan Administrator.
Each Eligible Employee claiming a benefit under the Plan and
who has not been advised of such benefit by the Plan Administrator or who is not
satisfied with the amount of any benefit awarded under the Plan may file a
written claim with the Plan Administrator within sixty days of the Eligible
Employee's Termination Date. Within ninety days after receiving the claim, the
Plan Administrator will decide whether or not to approve the claim. The
ninety-day period may be extended by the Plan Administrator for an additional
ninety-day period if special circumstances require an extension of time to
consider the claim. If the Plan Administrator extends the ninety-day period, the
claimant will be notified in writing as to the length of the extension and the
special circumstances which necessitate the extension. If the claim is denied,
the Plan Administrator shall set forth in writing the reasons for the denial,
pertinent provisions of the Plan shall be cited including an explanation of the
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Plan's claim review procedure and that if the claim is perfectible, an
explanation shall be provided as to how the claim can be perfected.
If a claim has been denied and the claimant wishes further
consideration of his or her claim, he or she may appeal the denial of his claim
to the Plan Administrator. In such case, a written statement of the claimant's
position must be filed with the Plan Administrator no later than sixty days
after the receipt of the written notification of the Plan Administrator denying
the claim referred to above. The Eligible Employee may request the opportunity
to review pertinent documents prior to submission of a written statement. The
Plan Administrator shall fully and fairly review the claimant's appeal and shall
promptly advise the claimant in writing of its decision with respect to its
review of the appeal within sixty days of the receipt of the request for a
review of the claim. Due to special circumstances, the Plan Administrator may
extend the time to reach a decision with respect to the appeal of the claim
denial, in which case the Plan Administrator shall render a decision as soon as
possible, but not later than one hundred twenty days after receipt of a request
for a review of the claim denial.
XII. MISCELLANEOUS PROVISIONS:
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o Neither the establishment of this Plan, nor any modification thereof,
nor the payment of any benefits hereunder, shall be construed as giving
to any Eligible Employee, or other person any legal or equitable right
against the Company or any officer, director or employee thereof, and
in no event shall the terms and conditions of employment by the Company
of any Employee be modified or in any way affected by this Plan.
o The records of the Company, with respect to years of service,
employment history, weekly pay, absences, illnesses, and all other
relevant matters shall be conclusive for all purposes of this Plan.
o The Plan shall be governed by and construed in accordance with ERISA
and, as applicable and to the extent not preempted, the laws of the
State of Texas applicable to contracts made and to be performed within
the State of Texas, without regard to Texas's choice of law rules.
Headings and subheadings have been added only for convenience of
reference and shall have no substantive effect whatsoever.
o Nothing contained in this Plan shall be held or construed to create any
liability upon the Company to retain any Employee in its service or to
change the employee-at-will status of any Employee. All Employees shall
remain subject to discharge or discipline to the same extent as if the
Plan had not been put into effect. An Employee's failure to qualify for
or receive a payment hereunder shall not establish any right to
continuation of or reinstatement to any employment, or any benefits in
lieu of severance.
o No Eligible Employee shall have the right to alienate, transfer,
assign, commute or otherwise encumber or dispose of the Eligible
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Employee's benefit under the Plan for any purpose whatsoever, and any
attempt to do so shall be null and void to the extent allowed by law.
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GLOSSARY
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For purposes of the Plan, the following terms shall have the meanings
set forth:
Applicable Date. Unless and except to the extent accelerated pursuant to the
accelerated payment schedule set forth in Section VII of the Plan, the
Applicable Date will be the earlier of (a) the Termination Date if the Eligible
Employee's employment is terminated by the Company for any reason other than for
Cause or by the Eligible Employee for Good Reason and (b) the Plan Date.
Award Percentage. The Plan Administrator will assign each Eligible Employee an
award designation which will establish such Eligible Employee's Award Percentage
for purposes of the Plan. The award designation shall not exceed 0.75 (75%).
Base Salary. The Eligible Employee's basic salary or rate in effect on the date
any payment becomes payable (unless herein specified otherwise), expressed in
annual terms, without considering overtime, bonuses, shift premiums, back pay or
other awards, or Company contributions to any employee benefit plans.
Cause. The occurrence of any of the following events:
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(a) fraud;
(b) material dishonesty relating to the conduct of the business of
the Company or dishonesty which does not relate to the conduct
of the business of the Company which adversely affects the
Company or the Employee's ability to manage the business of
the Company;
(c) willful and material breach of any of the provisions or
covenants of any agreement between the Employee and the
Company;
(d) gross neglect or gross misconduct in carrying out the
Employee's duties as an employee of the Company resulting, in
either case, in material economic harm to the Company;
(e) embezzlement;
(f) chronic alcoholism or chronic drug dependency that in either
case precludes the Employee's performance of his or her duties
to the Company; or
(g) the conviction of or plea of guilty or nolo contendere to a
felony, or any crime involving securities or commodities laws
violations or moral turpitude.
Change of Control. The occurrence of any of the following events:
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(a) the disposition, whether by sale (whether in one transaction
or a series of related transactions), merger or consolidation,
of all or substantially all of the Company's assets;
(b) any person, entity or group (as the term "group" is defined in
the rules and regulations relating to Section 13D of the
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Securities Exchange Act of 1934, as amended), other than Chase
Bank of Texas, acquires 50% or more of the voting common stock
of the Company; or
(c) a contested proxy solicitation of Company stockholders that
results in the contesting party obtaining the ability to cast
25% or more of the votes entitled to be cast in electing
directors of the Company;
provided, however, that any transaction among insiders or affiliates of the
Company shall not constitute a Change of Control unless such transaction is
made pursuant to a confirmed chapter 11 plan .
Company. Weiner's Stores, Inc.
Effective Date. September 19, 2000.
Eligible Employee. Any Employee who meets the eligibility conditions contained
in Section III of the Plan.
Employee. Any person employed by the Company.
ERISA. Employee Retirement Income Security Act of 1974, as amended.
Good Reason. The occurrence of any of the following events within the 30-day
period preceding the termination of employment by the Employee:
(a) a reduction of the Employee's Base Salary (other than any
reduction applicable to management employees generally);
(b) a material reduction in the Employee's position, duties or
responsibilities with respect to his or her employment by the
Company without the Employee's prior consent; or
(c) a change in the Employee's principal work location by more
than 50 miles and more than 50 miles from the Employee's
principal place of abode as of the date of such change in job
location without the Employee's prior consent.
Plan. Weiner's Stores, Inc. 2000 Executive Retention Plan.
Plan Administrator. The Retention Plan Committee, which shall be comprised of
the Company's President, CEO and Chief Financial Officer.
Plan Date. The earliest of:
(a) the date that the confirmation of a plan under chapter 11 of
the United States Bankruptcy Code with respect to the Company
becomes effective, if such plan provides for the continuation
of the Company as a going concern;
(b) ninety (90) days after the date that the confirmation of a
plan under chapter 11 of the United States Bankruptcy Code
with respect to the Company becomes effective, if such plan
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does not provide for the continuation of the Company as a
going concern;
(c) ninety (90) days after the date an order converting the
Company's chapter 11 case to a case under chapter 7 of the
United States Bankruptcy Code becomes effective;
(d) ninety (90) days after the date an order dismissing the
Company's chapter 11 case becomes effective; and
(e) ninety (90) days after the date on which a Change of Control
of the Company is consummated.
Termination Date. The date the Eligible Employee's employment with the Company
terminates.
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ADDITIONAL INFORMATION
Plan Name: Weiner's Stores, Inc. 2000 Executive
Retention Plan
Plan Sponsor: Weiner's Stores, Inc.
Source of Contributions
to the Plan: Company payments from corporate assets
Plan Sponsor's IRS I.D.
Number: 76-0355003
Plan Number: __________
Plan Administrator: Weiner's Stores, Inc. Retention Plan Committee
c/o Chief Executive Officer
6005 Westview Drive
Houston, Texas 77055
(713) 688-1331
Agent for Service of
Legal Process: Raymond J. Miller
Weiner's Stores, Inc.
6005 Westview Drive
Houston, Texas 77055
(713) 688-1331
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STATEMENT OF PARTICIPANT'S RIGHTS UNDER ERISA
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The Department of Labor issued regulations which require the Company to provide
you with a statement of your rights under ERISA with respect to this Plan. The
following statement was designed by the Department of Labor to satisfy this
requirement and is presented accordingly.
As a participant in this Plan, you are entitled to certain rights and protection
under the Employee Retirement Income Security Act of 1974. ERISA provides that
all Plan participants are entitled to:
1. Examine, without charge, all Plan documents and copies of all
documents filed by the Company with the U.S. Department of Labor. This includes
annual reports and Plan descriptions. All such documents are available for
review in your Personnel/Human Resources Department.
2. Obtain copies of all Plan documents and other Plan information upon
written request to the Plan Administrator. The Plan Administrator may make a
reasonable charge for these copies.
3. Receive a summary of the Plan's annual financial report. Once each
year, the Plan Administrator will send you a Summary Annual Report of the Plan's
financial activities at no charge.
In addition to creating rights for Plan participants, ERISA imposes duties upon
the people who are responsible for the operation of the Plan. The people who
operate your Plan, called "fiduciaries" of the Plan, have a duty to do so
prudently and in the interest of you and other Plan participants.
No one, including your employer or any other person, may fire you or otherwise
discriminate against you in any way to prevent you from obtaining a pension or
welfare benefit or exercising your rights under ERISA.
If your claim for a benefit is denied in whole or in part, you must receive an
explanation of the reason for the denial. You have the right to have the Plan
Administrator review and reconsider your claim.
Under ERISA, there are steps you can take to enforce the above rights. For
instance, if you request materials from the Plan and do not receive them within
30 days, you may file suit in a federal court. In such a ease, the court may
require the Plan Administrator to provide the materials and pay you up to $100 a
day until you receive the materials, unless the materials were not sent because
of reasons beyond the control of the Plan Administrator. If you have a claim for
benefits which is denied or ignored, in whole or in part, you may file suit in a
state or federal court. If it should happen that Plan fiduciaries misuse the
Plan's money, or if you are discriminated against for asserting your rights, you
may seek assistance from the U.S. Department of Labor, or you may file suit in a
federal court.
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The court will decide who should pay court costs and legal fees. If you are
successful, the court may order the person you have sued to pay these costs and
fees. If you lose, the court may order you to pay these costs and fees, for
example, if it finds your claim is frivolous.
If you have any questions about your Plan, you should contact the Plan
Administrator thorough your Personnel/Human Resources Department. They will be
glad to help you. If you have any questions about this statement or about your
rights under ERISA, you may contact the nearest Area Office of the U.S.
Labor-Management Service Administration, Department of Labor.
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