EXHIBIT 4
AMENDED & RESTATED
BUTLER MANUFACTURING COMPANY
EXECUTIVE DEFERRED COMPENSATION PLAN
Butler Manufacturing Company ("Butler") established the Butler Manufacturing
Company Executive Deferred Compensation Plan ("Plan") effective January 1, 1988.
The Plan was amended effective December 19, 1989, September 18, 1990, restated
effective December 15, 1995, and amended November 27, 1996 and January 1, 1998.
Butler hereby amends and restates the Plan effective January 1, 2001 for the
purposes and upon the terms hereinafter set forth.
ARTICLE I
PURPOSE
The purpose of the Butler Manufacturing Company Executive Deferred
Compensation Plan (hereinafter referred to as the "Plan") is to provide funds
for retirement or death for executive employees (and their beneficiaries) of
Butler Manufacturing Company and its subsidiaries. It is intended that the Plan
will aid in retaining and attracting employees of exceptional ability by
providing such employees with a means to supplement their standard of living at
retirement. This Plan is intended to qualify for the exemptions described in
sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement Income
Security Act of 1974, as amended. This Plan shall be unfunded for tax purposes
and for purposes of Title I of ERISA.
ARTICLE II
DEFINITIONS
For the purposes of this Plan, the following words and phrases shall have the
meanings indicated, unless the context clearly indicates otherwise:
2.1 Beneficiary. "Beneficiary" means the person, persons or entity designated
by the Participant, or as provided in Article VIII, to receive any benefits
payable under the Plan. Any Participant Beneficiary designation shall be made in
a written instrument filed with the Committee and shall become effective only
when received in writing by the Committee.
2.2 Board. "Board" means the Compensation and Benefits Committee of the Board
of Directors of the Butler Manufacturing Company.
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2.3 Committee. "Committee" means the group of Company employees, appointed by
and who shall serve at the pleasure of the Company, who will administer the
Plan.
2.4 Company. "Company" means Butler Manufacturing Company and its
subsidiaries.
2.5 Compensation. "Compensation" or "Total Compensation" means the Base
Salary and Incentive Compensation payable to a Participant during a Plan Year.
(a) Base Salary. "Base Salary" means all regular remuneration for
services, other than such items as Incentive Compensation, payable
by the Company to a Participant in cash during a Plan Year, but
before reduction for amounts deferred pursuant to this Plan or any
other Plan of the Company. The Committee shall determine whether a
particular item of income constitutes Base Salary if a question
arises.
(b) Incentive Compensation. "Incentive Compensation" means any cash
bonus earned by a Participant with respect to services rendered in a
Plan Year.
2.6 Declared Rate. "Declared Rate" means with respect to each Participant up
to two of the following crediting rates as elected by a Participant in a
Participation Agreement.
(a) Option A. "Declared Rate" means the average of the composite monthly
yield on Moody's Seasoned Corporate Bond Yield Index for the twelve
months beginning December 1 of the second preceding year and ending
November 30 of the preceding year, as determined from Moody's Bond
Record published by Moody's Investors Services, Inc. (or any
successor thereto). If such monthly yield is no longer published, a
substantially similar average shall be selected by the Committee.
(b) Option B. "Declared Rate" means the percentage of change in the
closing price of the Standard & Poor's 500 Stock Composite Index
from the last business day of each month compared to the last
business day of the previous month, published by the Wall Street
Journal (or any successor thereto). If such Index is no longer
published, a substantially similar Index shall be selected by the
Committee.
2.7 Deferral Benefit. "Deferral Benefit" means the benefit payable to a
Participant or Participant's Beneficiary on Participant's retirement, death,
disability, early distribution or termination of employment as calculated in
Article VII hereof.
2.8 Deferred Benefit Account. "Deferred Benefit Account" means the accounts
maintained on the books of account of the Company for each Participant pursuant
to Article VI. Separate Deferred Benefit Accounts shall be maintained for each
Participant. More than one
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Deferred Benefit Account may be maintained for each Participant as necessary to
reflect separate deferral elections. A Participant's Deferred Benefit Account
shall be utilized solely as a device for the measurement and determination of
the amounts to be paid to the Participant pursuant to this Plan. A Participant's
Deferred Benefit Account shall not constitute or be treated as a trust fund of
any kind.
2.9 Determination Date. "Determination Date" means the date on which the
amount of a Participant's Deferred Benefit Account is determined as provided in
Article VI hereof. The last business day of each calendar month shall be a
Determination Date.
2.10 Disability. "Disability" or "Disabled Participant" means a physical or
mental condition of a Participant resulting in a determination of disability for
purposes of receiving benefits under the Company's Long-Term Disability
Insurance Plan.
2.11 Participant. "Participant" means any individual who is designated by the
Committee to participate in this Plan and who elects to participate by filing a
Participation Agreement as provided in Article IV.
2.12 Participation Agreement. "Participation Agreement" means the agreement
filed by a Participant prior to the beginning of the first period for which any
of the Participant's Compensation is to be deferred pursuant to the Plan. A form
of such Participation Agreement is attached hereto.
2.13 Plan Year. "Plan Year" means a twelve month period commencing January 1
and ending the following December 31. The first Plan year commenced on January
1, 1988.
2.14 Retirement Age. "Retirement Age" means the time at which a Participant
attains age sixty-five (65) or at such other date at which the Participant
retires under the provisions of the Company's Base Retirement Plan for Salaried
Employees.
2.15 Retirement Date. "Retirement Date" means the first day of the month
coincidental with or next following a Participant's Retirement Age.
2.16 Spouse. "Spouse" means a Participant's wife or husband who was lawfully
married to the Participant at the time of the Participant's death or a
determination of Participant's incompetency.
ARTICLE III
ADMINISTRATION
3.1 Committee; Duties. This Plan shall be administered by the Committee.
Members of the Committee may be Participants under this Plan. The Committee and,
as the Committee determines to be appropriate, its delegates shall also have the
authority to make, amend, interpret and enforce all appropriate rules and
regulations for the administration of this Plan and decide or
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resolve any and all questions, including interpretation of this Plan, as may
arise in connection with the Plan.
3.2 Binding Effect of Decisions. Any decision by the Committee involving a
claim by the employee or the employee's beneficiary for benefits under this Plan
shall be stated in writing and delivered or mailed to the employee or such
beneficiary, within thirty days of the date of written notice of such claim.
Such decision shall set forth the basis for the decision, written to the best of
the Committee's ability in a manner that may be understood without legal
counsel. In addition, the Committee shall afford a reasonable opportunity to the
employee or such beneficiary for a full and fair review of the decision, and
such review shall be followed by a written decision setting forth the basis for
the action on appeal, which decision must be rendered within sixty days after
written notice to the Company of such appeal. If no written decision is rendered
within such sixty day time period, the appeal shall be deemed denied. The
decision of the Committee shall be final and binding.
ARTICLE IV
PARTICIPATION
4.1 Participation. Participation in the Plan shall be limited to the class of
those key executives selected by the Committee and approved by the Board who
elect to participate in the Plan by filing a Participation Agreement with the
Committee. A Participation Agreement must be filed prior to December 31
immediately preceding the Plan Year in which the Participant's participation
under the agreement will commence. The election to participate shall be
effective on the first day of the Plan Year following receipt by the Committee
of a properly completed and executed Participation Agreement.
With respect to the first Plan Year of the Plan or with respect to an
individual hired or promoted during a Plan Year who thereby becomes eligible to
participate herein, an initial Participation Agreement may be filed within 30
days of the Committee's notification to Participant of eligibility to
participate. Such election to participate shall be effective on the first day of
the month following the Committee's receipt thereof, except that elections not
received by the Committee prior to the 15th day of any calendar month shall be
effective no earlier than the first day of the second month following the month
of receipt.
4.2 Minimum and Maximum Deferral and Length of Participation. A Participant
may elect in a Participation Agreement to defer a portion of Participant's Base
Salary and/or Incentive Compensation. The minimum and maximum amounts that may
be deferred under a Participation Agreement shall be as follows: Minimum
Deferral Maximum Deferral With respect to Base Salary Deferrals 5% of Base
Salary 25% of Base Salary
Minimum Deferral Maximum Deferral
With respect to Base
Salary Deferrals 5% of Base Salary 25% of Base Salary
With respect to
Incentive Compensation 25% of Incentive 100% of Incentive
Deferrals Compensation Compensation
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(a) With respect to Base Salary deferrals, the deferral percentage
elected in a Participation Agreement shall be applied to the
Participant's Base Salary as established for the first pay period of
the Plan Year to which the Participation Agreement applies. A
Participation Agreement shall apply to the Participant's Base Salary
payable over a deferral period of one Plan Year, and thereafter to
each subsequent deferral period of one Plan Year until the
Participant's termination of employment or until the election to
defer is amended.
Deferrals shall commence with the Plan Year immediately following
the Plan Year in which the respective Participation Agreement is
filed; provided, however, that an initial Participation Agreement
which is effective other than on January 1 of a Plan Year shall
apply to the remainder of that Plan Year and to the following Plan
Years as set forth above.
(b) With respect to Incentive Compensation deferrals, the deferral
percentage or designated dollar amount selected in a Participation
Agreement shall apply to the Participant's Incentive Compensation to
be earned in the Plan Year immediately following receipt of the
Participation Agreement, and thereafter to Incentive Compensation
earned in each subsequent deferral period of one Plan Year until
Participant's termination of employment or until the election to
defer is amended.
(c) A Participant's election to defer Compensation shall be irrevocable
upon the filing of the respective Participation Agreement; provided,
however, that the deferral of Compensation under any Participation
Agreement may be suspended or amended as provided in paragraphs 4.4,
7.5, 7.6, 9.1 or as further described in this paragraph.
A Participant may amend a deferral election with respect to
deferrals in subsequent Plan Years by filing a new Participation
Agreement with the Committee in the manner provided in paragraph
4.4. The new agreement may change the amount of Compensation to be
deferred or discontinue deferrals. The date benefits are to commence
and the form in which benefits shall be paid from prior deferrals
may not be changed.
4.3 Earnings on Deferred Benefit Account. The Participant's Deferred Benefit
Account will be credited with a rate or rates of return (positive or negative)
based upon up to two Declared Rates as defined in paragraph 2.6, as selected by
a Participant in a Participation Agreement. Such rate(s) of return will be
credited monthly to Participant's Deferred Benefit Account based on a rate(s) to
be derived from the Declared Rate(s).
A Participant or the spouse who is a named Beneficiary of a deceased
Participant may change a Declared Rate election effective as of January 1 of
each Plan Year by filing a written
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notice with the Committee prior to January 1. No other Beneficiary shall have
the right to change a Declared Rate under the provisions of this Plan.
If a Participant elects more than one Declared Rate, Participant shall also
designate the percentage(s) of Participant's Deferred Benefit Account to be
credited with each such Declared Rate. Should a Participant subsequently elect
to change the Declared Rate(s) and/or percentage(s), such change shall apply to
100% of the in Participant's Deferred Benefit Account at the time such change is
made, and any new Declared Rate(s) and/or percentage(s) shall be applicable to
all future deferrals unless and until Participant amends such election.
However, for any Participant who retired, terminated or became disabled prior
to January 1, 2001 or for the Spouse who is the named Beneficiary of any
Participant who was deceased prior to January 1, 2001, this paragraph 4.3 is not
applicable and such Participants' or Beneficiaries' Deferred Benefit Accounts
will be credited based upon the Option A Declared Rate as defined in Paragraph
2.6.
4.4 Additional Participation Agreement. A Participant may enter into a new
Participation Agreement by filing a Participation Agreement with the Committee
prior to December 31 of any calendar year, stating the amount that the
Participant elects to have deferred. The new agreement shall be effective only
as to Compensation paid in the Plan Year beginning after the last day of the
Plan Year in which the respective agreement is filed with the Committee. A new
Participation Agreement is subject to all of the provisions and requirements set
forth in paragraph 4.2.
ARTICLE V
DEFERRED COMPENSATION
5.1 Elective Deferred Compensation. The amount of Compensation that a
Participant elects to defer in a Participation Agreement executed by the
Participant with respect to each Plan Year of participation in the Plan shall be
credited by the Company to the Participant's Deferred Benefit Account throughout
each Plan Year as the Participant is paid the non-deferred portion of
Compensation for such Plan Year. The amount credited to a Participant's Deferred
Benefit Account shall equal the amount deferred. To the extent that the Company
is required to withhold any taxes or other amounts from an employee's deferred
wages pursuant to any state, federal or local law, such amounts shall be taken
out of the Participant's Compensation which is not deferred under this Plan.
5.2 Effect on Other Plans. To the extent to which deferrals by a Participant
under this Plan cause a reduction in contributions by the Company on behalf of
the Participant under the Company's Individual Retirement Asset Account
(formerly, the Employee Stock Ownership Plan Trust), the Company shall credit
the amount of any such
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reduction to the Participant's Deferred Benefit Account under this Plan. If such
reduction shall result from the application of section 415 with respect to such
Participant, the Company will credit the amount of any such reduction to the
Participant's Deferred Benefit Account under this Plan, and, in such case, this
provision shall constitute a separate excess benefit plan as defined in section
3(36) of the Employee Retirement Income Security Act of 1974. If such reduction
shall result from the application of section 401(a)(17) of the Code with respect
to such Participant, the Company will credit the amount of any such reduction to
the Participant's Deferred Benefit Account under this Plan, such amount to be
credited as of the December 31 of the year in which such reduction occurs. To
the extent to which any such reduction is restored by supplementary benefits
provided to such Participant from the Company's Supplemental Benefit Plan, no
additional benefits shall be provided by this Plan.
The Company shall compute life insurance and disability benefits under any
Company plan based on Compensation without reduction for amounts deferred under
this Plan.
The Company shall compute benefits under the Base Retirement Plan for
Salaried Employees based on the Participant's highest consecutive 5-year average
annual Compensation without reduction for amounts deferred under this Plan.
Effective retroactively to January 1, 1989, and solely with respect to the
individuals listed on Exhibit A attached to this Amended and Restated Plan and
made a part hereof, notwithstanding the provisions of Section 2.11 of the Plan,
Article IV of the Plan and the provisions of Section 5.1 and 5.2 of the Plan,
the individuals listed on said Exhibit A shall be considered to be Participants
in the Plan for the years listed on said Exhibit A, and the provisions of this
Plan, including the provisions of this Section 5.2, shall apply to such
individuals even though such individuals have not made deferrals under this
Plan. This provision shall be applicable (a) solely as to the individuals listed
on said Exhibit A only with respect to adjustments because of the application of
ss. 415 of the Code or ss. 401(a)(17) of the Code, (b) solely as to the years
listed on said Exhibit A opposite the names of said individuals and (c) only if
adjustments under said Code sections are not made under any other tax qualified
or nonqualified employee benefit plan of the Company.
5.3 Vesting of Deferred Benefit Account. A Participant shall be 100% vested
in the Participant's Deferred Benefit Account.
ARTICLE VI
DEFERRED BENEFIT ACCOUNT
6.1 Determination of Account. Each Participant's Deferred Benefit Account as
of each Determination Date shall consist of the balance of the Participant's
Deferred Benefit Account as of the immediately preceding Determination Date,
plus the Participant's elective deferred Compensation withheld since the
immediately preceding Determination Date pursuant to paragraph 5.1. The Deferred
Benefit Account of each Participant shall be reduced by the amount of all
distributions, if any, made from such Deferred Benefit Account since the
preceding Determination Date.
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6.2 Crediting of Account. As of each Determination Date, the Participant's
Deferred Benefit Account shall be adjusted by the amount of earnings since the
preceding Determination Date. Earnings shall be based on the Declared Rate(s) as
defined in paragraph 2.6 and as elected by the Participant in a Participation
Agreement pursuant to paragraph 4.3.
For any portion of the Deferred Benefit Account to which Declared Rate Option
A applies, earnings shall be credited on the mean average of the balances of the
Deferred Benefit Account on the Determination Date and on the last preceding
Determination Date, but after the Deferred Benefit Account has been adjusted for
any Base Salary contributions or any distributions to be credited or deducted
for each such day.
For any portion of the Deferred Benefit Account to which Declared Rate Option
B applies, each Participant's Deferred Benefit Account shall be adjusted as of
each Determination Date to reflect any gain or loss as if the Deferred Benefit
Account had actually been invested in such Declared Rate. Such adjustment shall
be made after the Deferred Benefit Account has been adjusted for any Base Salary
contributions to be credited or any distributions to be deducted since the last
preceding Determination Date. In effect, this assumes Base Salary contributions
are credited and distributions are deducted at the beginning of each month.
Deferrals due to Incentive Compensation earned during a Plan Year, but
payable in the following Plan Year shall be credited on the last Determination
Date of the Plan Year in which it was earned, but only after earnings have been
credited for that Determination Date.
6.3 Statement of Accounts. The Company shall submit to each Participant,
within 120 days after the close of each Plan Year, a statement in such form as
the Company deems desirable, setting forth the balance to the credit of each
Participant's Deferred Benefit Account (showing separate calculations for each
Declared Rate) as of the last day of the preceding Plan Year.
ARTICLE VII
BENEFITS
7.1 Benefit for Retirement or Termination of Employment. Subject to paragraph
7.6 below, upon a Participant reaching the Retirement Date, or any termination
of employment for reasons other than death or Disability, the Participant shall
be entitled to a Deferral Benefit equal to the amount of Participant's Deferred
Benefit Account determined under paragraphs 6.1 and 6.2 hereof as of the
Determination Date coincidental with or immediately following such event.
7.2 Death. Upon the death of a Participant, such Participant's Beneficiary
shall receive a Deferral Benefit equal to the remaining balance in such
Participant's Deferred Benefit Account.
The Deferral Benefit shall be payable as provided for in paragraph 7.6.
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The Deferral Benefit provided above shall be in lieu of all other benefits
under this Plan.
7.3 Disability. In the event of Disability, as defined in paragraph 2.10,
while employed by the Company, the disabled Participant shall be allocated the
amount in Participant's Deferred Benefit Account determined under paragraphs 6.1
and 6.2 as of the Determination Date next following such Disability.
Payments shall commence upon attainment of the Participant's Retirement
Date in the form specified in paragraph 7.6(a)(2) over a 15-year period. Before
payments commence under the preceding sentence, a Disabled Participant may
elect, subject to Committee approval upon good cause shown: (i) to accelerate
commencement of the payments until the date no earlier than 60 days after the
onset of Disability, and/or (ii) to change the form of payment to another form
permitted under paragraph 7.6(a).
7.4 Early Distribution. In respect to each Participation Agreement filed by a
Participant, the Participant may irrevocably elect in a Participation Agreement
a future date to receive an Early Distribution of a Participant's Deferred
Benefit Account attributable to that Participation Agreement. The election for
an Early Distribution applies to the Plan Year following such election. Early
Distribution may begin at any time after the end of the fifth year following the
filing of the Participation Agreement. The Participant may elect to receive all
or any percentage of the Participant's Deferred Benefit Account balance,
attributable to a Participation Agreement, as an Early Distribution in a lump
sum payment. If a Participant elects to receive only a portion of Participant's
Deferred Account balance, attributable to a Participation Agreement, as an Early
Distribution, then the remaining Deferred Benefit Account Balance will continue
to be credited with earnings at the Declared Rate(s) as elected; in such event,
a Deferral Benefit equal to the remaining balance shall be payable as provided
for in paragraph 7.6. "Early Distribution" means a distribution prior to a
Participant's termination of employment.
7.5 Suspension of Participation/Failure to Continue Participation. The
Committee, in its sole discretion, may suspend the deferral of a Participant's
base salary during a Plan Year upon the written request of a Participant on
account of any unforeseeable emergency resulting in financial hardship suffered
by the Participant. In addition, the Committee, in its sole discretion may allow
a withdrawal of funds from the Participant's Deferred Benefit Account upon the
written request of a Participant on account of financial hardship suffered by
that Participant. The withdrawal may not exceed the lesser of the Participant's
Deferred Benefit Account or the amount reasonably needed to satisfy the
unforeseeable financial emergency. A Participant must file any request for such
suspension or withdrawal on or before the 15th day preceding the regular payday
on which this suspension or withdrawal is to take effect. Incentive Compensation
Deferrals may not be suspended during the Plan Year.
An unforeseeable emergency resulting in financial hardship shall mean an
unexpected need for cash resulting from conditions in the nature of any of the
following:
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(a) A severe financial hardship of the Participant caused by a sudden
unexpected illness or accident of the Participant or of a dependent
of the Participant (as defined in Code Section 152(a));
(b) A loss of the Participant's property as the result of casualty, or
(c) Other similar extraordinary and unforeseeable circumstances caused
by events beyond the Participant's control.
The circumstances that will constitute an unforeseeable emergency will depend
upon the facts of each case, but, in any case, payment may not be made to the
extent that such hardship is or may be relieved as follows:
(a) Through reimbursement or compensation by insurance or otherwise,
(b) By liquidation of the Participant's assets, to the extent the
liquidation of such assets would not itself cause severe financial
hardship, or
(c) By cessation of deferrals under the Plan.
The suspension of any deferrals under this paragraph shall not affect amounts
deferred with respect to periods prior to the effective date of suspension
except as otherwise permitted by the Committee. A Participant whose deferrals
are suspended may not execute a subsequent Participation Agreement that would
take effect prior to the beginning of the second Plan Year following the close
of the Plan Year in which the suspension first took effect.
In the event the Participant ceases to remain a member of the class of
employees who are eligible to participate in this Plan, the Participant may
elect to suspend the amount of any remaining deferral commitment in the same
manner as described for other suspensions in this paragraph, except that
Committee approval shall not be required.
7.6 Form of Benefit Payment.
(a) Upon retirement, death or termination of employment, the Company
shall pay to the Participant or Participant's Beneficiary the
balance in Participant's Deferred Benefit Account in one of the
following forms, as elected in the Participation Agreement or any
subsequent election filed by the Participant:
(1) A lump sum payment.
(2) A monthly payment of principal and interest which shall amortize
the Deferred Benefit Account balance over a period of 2 to 180
months as follows: (1) For any portion of the Deferred Benefit
Account balance to which the Option A Declared Rate applies, the
monthly payment shall be a fixed amount which shall amortize the
Deferred Benefit Account balance in
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equal monthly payments. For purposes of determining the amount
of the monthly payment, and for crediting the account balance,
the rate of earnings shall be the average of the Option A
Declared Rate for the shorter of the last five (5) Plan Years
preceding the initial monthly installment payment, or the actual
number of Plan Years of participation by the Participant, (ii)
For any portion of the Deferred Benefit Account balance to which
the Option B Declared Rate applies, the amount of the monthly
payment shall be determined by applying a 7% annual rate of
interest. The monthly payment shall be redetermined at the start
of each subsequent Plan Year by applying a 7% annual rate of
interest. The 7% annual rate of interest shall only be used for
purposes of determining monthly payments. The Deferred Benefit
Account balance will be credited with the Option B Declared
Rate. However, for the final Plan Year in which monthly payments
shall be received by a Participant, the Deferred Benefit Account
balance shall be credited with an interest rate of the average
of the Option A Declared Rate during the 5 years prior to the
final Plan Year.
(b) A Participant may change the form in which benefits from future
deferrals shall be paid by filing a new Participation Agreement
indicating such change any time prior to the date payments are to
commence. Such new Participation Agreement may not change the
provisions of any previous Participation Agreement to which it
relates for purposes of complying with the provisions of paragraphs
4.2 and 4.4 relating to the minimum and maximum deferrals and
duration of the Participation Agreement. No such new Participation
Agreement shall change the amount elected to be deferred in the
original Participation Agreement, nor the time elected for
commencement of benefit payments, nor the form in which benefits are
to be paid, except as provided in paragraph 4.2(c).
(c) In the absence of a Participant's election under subparagraph
7.6(a), benefits shall be paid in the form specified in subparagraph
7.6(a)(2) over a 180-month period. In the event of a Disabled
Participant, payment shall be in the form described in paragraph
7.3.
(d) If, at the time of retirement, death or termination, the amount of
the Deferred Benefit Account is less than $10,000.00 or if the
amount of the monthly benefit determined in paragraph 7.6(a) 2
results in a monthly benefit of less than $200.00, then the Company
shall pay the benefit in a lump sum payment.
(e) Should the benefit become payable to any person or beneficiary other
than a Participant or spouse of a Participant, the remaining balance
of the Deferred Benefit Account shall be paid in a lump sum within
60 days.
7.7 Withholding; Payroll Taxes. To the extent required by the law in effect
at the time payments are made, the Company shall withhold from payments made
hereunder any taxes
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required to be withheld from an employee's wages for the federal or any state
or local government.
7.8 Commencement of Payments. Commencement of payments under this Plan shall
begin within 60 days following receipt of notice by the Committee of an event
which entitles a Participant (or a Beneficiary) to payments under this Plan, or
at such earlier date as may be determined by the Committee. All monthly payments
shall be made as of the fifteenth day of the month."
7.9 Change of Control. Anything in this Plan to the contrary
notwithstanding, upon a Change of Control, the Company shall pay to each
Participant or the Participant's Beneficiary in a cash lump sum (subject to
paragraph 7.6) the balance in the Participant's Deferred Benefit Account. Such
amount shall be paid as soon as practical but in no event more than 15 days
following the occurrence of a change of control. For purposes of this Plan, a
change of control shall mean:
(a) An acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act)) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 15% or more of either (i) the then
outstanding shares of common stock of the Company (the "Outstanding
Company Common Stock") or (ii) the combined voting power of the then
outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company
Voting Securities"); excluding, however, the following: (i) any
acquisition directly from the Company, other than an acquisition by
virtue of the exercise of a conversion privilege unless the security
being so converted was itself acquired directly from the Company,
(ii) any acquisition by the Company, (iii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by
the Company or any corporation controlled by the Company or (iv) any
acquisition by any corporation pursuant to a reorganization, merger,
consolidation or similar corporate transaction (in each case, a
"Corporate Transaction"), if, pursuant to such Corporate Transaction
the conditions described in clauses (i), (ii) and (iii) of clause
(c) of this paragraph 7.9 are satisfied; or
(b) A change in the composition of the Board such that the individuals
who, as of the date hereof, constitute the Board (the Board as of
the date hereof shall be hereinafter referred to as the "Incumbent
Board") cease for any reason to constitute at least a majority of
the provided, however, for purposes of this paragraph 7.9, that any
individual who becomes a member of the Board subsequent to the date
hereof whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of those
individuals who are members of the Board and who were also members
of the Incumbent Board (or deemed to be so pursuant to this
provision) shall be considered as though such individual were a
member of the Incumbent Board;
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but, provided further, that any such individual whose initial
assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in Rule 14a-11
of Regulation 14A promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board shall not be so considered
as a member of the Incumbent Board; or
(c) The approval by the shareholders of the Company of a Corporate
Transaction or, if consummation of such Corporate Transaction is
subject, at the time of such approval by shareholders, to the
consent of any government or governmental agency, the obtaining of
such consent (either explicitly or implicitly by consummation);
excluding, however, such a Corporate Transaction pursuant to which
(i) all or substantially all of the individuals and entities who are
the beneficial owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities immediately
prior to such Corporate Transaction will beneficially own, directly
or indirectly, more than 60% of, respectively, the outstanding
shares of common stock of the corporation resulting from such
Corporate Transaction and the combined voting power of the
outstanding voting securities of such corporation entitled to vote
generally in the election of directors, in substantially the same
proportions as their ownership, immediately prior to such Corporate
Transaction, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be, (ii) no Person (other
than the Company, any employee benefit plan (or related trust) of
the Company or such corporation resulting from such Corporate
Transaction and any Person beneficially owning, immediately prior to
such corporate transaction, directly or indirectly, 15% or more of
the Outstanding Company Common Stock or Outstanding Voting
Securities, as the case may be) will beneficially own, directly or
indirectly, 15% or more of, respectively, the outstanding shares of
common stock of the corporation resulting from such Corporate
Transaction or the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in
the election of directors and (iii) individuals who were members of
the Incumbent Board will constitute at least a majority of the
members of the board of directors of the corporation resulting from
such Corporate Transaction; or
(d) The approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company or the sale or other
disposition of all or substantially all of the assets of the Company
or, if consummation of such liquidation or dissolution or sale or
other disposition is subject, at the time of such approval by
shareholders, to the consent of any government or governmental
agency, the obtaining of such consent (either explicitly or
implicitly by consummation); excluding, however, such a sale or
other disposition to a corporation, with respect to which following
such sale or other disposition, (i) more than 60% of, respectively,
the then outstanding shares of common stock of such corporation and
the combined voting power of the then outstanding voting securities
of such
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corporation entitled to vote generally in the election of directors
will then be beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to
such sale or other disposition in substantially the same proportion
as their ownership, immediately prior to such sale or other
disposition, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be, (ii) no Person (other
than the Company and any employee benefit plan (or related trust) of
the Company or such corporation and any Person beneficially owning,
immediately prior to such sale or other disposition, directly or
indirectly, 15% or more of the Outstanding Company Common Stock or
Outstanding Company Voting Securities, as the case may be) will
beneficially own, directly or indirectly, 15% or more of,
respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in
the election of directors and (iii) individuals who were members of
the Incumbent Board will constitute at least a majority of the
members of the board of directors of such corporation.
(e) If the employment of a Participant with the Company is terminated
prior to the date on which a Change of Control occurs, and it is
reasonably demonstrated that such termination (1) was at the request
of a third party who has taken steps reasonably calculated to effect
a Change of Control or (2) otherwise arose in connection with or
anticipation of a Change of Control, then such Participant shall be
treated as a Participant employed at the time the Change in Control
occurred, and any amounts forfeited by such Participant under this
Plan shall be fully restored to such Participant.
7.10 Limitations on the Annual Amount Paid to a Participant. Notwithstanding
any other provisions of this Plan to the contrary, in the event that a portion
of the payments due a Participant pursuant to paragraphs 7.1, 7.2., 7.3 or 7.4,
would not be deductible by the Company pursuant to Section 162(m) of the
Internal Revenue Code of 1986 (as amended), the Company, at its discretion, may
postpone payment of such amounts to the Participant until such time that the
payments would be deductible by the Company. Provided, however, that no payment
postponed pursuant to this paragraph 7.10 shall be postponed beyond the first
anniversary of such Participant's termination of employment.
ARTICLE VIII
BENEFICIARY DESIGNATION
8.1 Beneficiary Designation. Each Participant shall have the right, at any
time, to designate any person or persons as Beneficiary or Beneficiaries (both
principal as well as contin-
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gent) to whom payment under this Plan shall be made in the event of
Participant's death prior to complete distribution of the benefits due to the
Participant under the Plan.
8.2 Amendments. Any Beneficiary designation may be changed by a Participant
by the written filing of such change on a form prescribed by the Committee. The
filing of a new Beneficiary Designation form will cancel all Beneficiary
designations previously filed.
8.3 No Beneficiary Designation. If a Participant fails to designate a
Beneficiary as provided above, or if all designated Beneficiaries predecease the
Participant, then the Participant's designated Beneficiary shall be deemed to be
the person or persons surviving Participant in the first of the following
classes in which there is a survivor, share and share alike:
(a) The surviving Spouse;
(b) The Participant's children, except that if any of the children
predecease the Participant but leave issue surviving, then such
issue shall take by right of representation the share their parent
would have taken if living;
(c) The Participant's personal representative (executor or
administrator).
8.4 Effect of Payment. The payment to the deemed Beneficiary of the entire
amount owed shall completely discharge the Company's obligations under this
Plan.
ARTICLE IX
AMENDMENT AND TERMINATION OF PLAN
9.1 Amendment. The Company may at any time amend the Plan in whole or in
part; provided, however, that no amendment shall be effective to decrease or
restrict any Deferred Benefit Account at the time of such amendment. In the
event the Plan is amended, the Participation Agreement shall be subject to the
provisions of such amendment as if set forth in full therein, without further
action or amendment to the Participation Agreement. The parties shall be bound
by, and have the benefit of, each and every provision of the Plan, as amended
from time to time.
9.2 Right to Terminate. The Board or Committee may at any time terminate the
Plan with respect to new elections to defer if, in its judgment, the continuance
of the Plan, the tax, accounting, or other effects thereof, or potential
payments thereunder would not be in the best interests of the Company. The Board
or Committee may also terminate the Plan in its entirety at any time, and upon
any such termination, all Participants under the Plan shall be paid the balance
in their Deferred Benefit Accounts in a lump sum, or over such period of time as
determined by the Committee.
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ARTICLE X
MISCELLANEOUS
10.1 Unsecured General Creditor. Participants and their Beneficiaries shall
have no legal or equitable rights, interest or claims in any property or assets
of the Company, nor shall they be Beneficiaries of, or have any rights, claims
or interests in any life insurance policies, annuity contracts or the proceeds
therefrom owned or which may be acquired by the Company ("Policies"). Such
Policies or other assets of the Company shall not be held under any trust for
the benefit of Participants or their Beneficiaries or held in any way as
collateral security for the fulfilling of the obligations of the Company under
this Plan; however, such Policies and assets may be held in trust if such
Policies and assets remain subject to the claims of the Company's general
creditors in the event of the Company's bankruptcy or insolvency. Any and all of
the Company's assets and Policies shall be, and remain, the general, unpledged
and unrestricted assets of the Company. The Company's obligation under the Plan
shall be merely that of an unfunded and unsecured promise of the Company to pay
money in the future.
10.2 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 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 or sequestration for the payment of any debts, judgments, alimony or
separate maintenance owed by a Participant or any other person, nor be
transferable by operation of law in the event of a Participant's or any other
person's bankruptcy or insolvency.
10.3 Not a Contract of Employment. The terms and conditions of this Plan
shall not be deemed to constitute a contract of employment between the Company
and the Participant, and the Participant (or Participant's Beneficiary) shall
have no rights against the Company except as may otherwise be specifically
provided herein. Moreover, nothing in this Plan shall be deemed to give a
Participant the right to be retained in the service of the Company or to
interfere with the right of the Company to discipline or discharge Participant
at any time.
10.4 Protective Provisions. A Participant will cooperate with the Company by
furnishing any and all information requested by the Company in order to
facilitate the payment of benefits hereunder, by taking such physical
examinations as the Company may deem necessary, and by taking such other action
as may be requested by the Company.
10.5 Governing Law. The provisions of this Plan shall be construed and
interpreted according to the laws of the State of Missouri.
10.6 Successors. The provisions of this Plan shall bind and inure to the
benefit of the Company and its successors and assigns.
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10.7 Effective Date. This Plan as amended and restated herein, shall become
effective as of January 1, 2001.
10.8 Incompetent. In the event that it shall be found upon evidence
satisfactory to the Committee that any Participant or Beneficiary to whom a
benefit is payable under this Plan is unable to care for such Participant's or
such Beneficiary's affairs because of illness or accident, any payment due
(unless prior claim therefor shall have been made by a duly authorized guardian
or other legal representative) may be paid, upon appropriate indemnification of
the Company, to the Spouse or other person deemed by the Committee to have
incurred any expense for such Participant or a Beneficiary. Any such payment
shall be a payment for the account of the Participant or a Beneficiary and shall
be a complete discharge of any liability of the Company therefor.
ADOPTED pursuant to resolution of the Board of Directors this 22nd day of
November, 2000.
BUTLER MANUFACTURING COMPANY
By /s/ Donald H. Pratt
Chairman
By /s/ John W. Huey
Secretary
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EXHIBIT A
Years to Which
Individuals Amendment Applicable
Don Pratt 1989 to 1996
Bob West 1992
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