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EXHIBIT 10.4
ELCOR CORPORATION DEFERRED COMPENSATION PLAN
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TABLE OF CONTENTS
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ARTICLE I TITLE AND DEFINITIONS....................................................................................1
1.1 Title ...................................................................................................1
1.2 Definitions..............................................................................................1
ARTICLE II PARTICIPATION............................................................................................4
ARTICLE III DEFERRALS................................................................................................4
3.1 Elections to Defer Base Salary, Bonuses or Commissions...................................................5
3.2 Discretionary Credits by Company.........................................................................5
3.3 Deferral of Excess 401(k) Contributions..................................................................5
3.4 Deemed Investment Elections..............................................................................6
ARTICLE IV DEFERRAL ACCOUNTS........................................................................................6
4.1 Deferral Accounts........................................................................................6
ARTICLE V VESTING..................................................................................................7
ARTICLE VI DISTRIBUTIONS............................................................................................7
6.1 Normal Distributions.....................................................................................7
6.2 Hardship Distributions...................................................................................8
6.3 Accelerated Payments.....................................................................................9
6.4 Inability to Locate Participant..........................................................................9
ARTICLE VII ADMINISTRATION...........................................................................................9
7.1 Committee................................................................................................9
7.2 Committee Action.........................................................................................9
7.3 Powers and Duties of the Committee......................................................................10
7.4 Construction and Interpretation.........................................................................10
7.5 Information.............................................................................................11
7.6 Compensation, Expenses and Indemnity....................................................................11
7.7 Quarterly Statements....................................................................................11
7.8 Disputes ...............................................................................................11
ARTICLE VIII MISCELLANEOUS...........................................................................................12
8.1 Unsecured General Creditor..............................................................................12
8.2 Restriction Against Assignment..........................................................................13
8.3 Withholding.............................................................................................13
8.4 Amendment, Modification, Suspension or Termination......................................................13
8.5 Adoption by Affiliates..................................................................................13
8.6 Governing Law...........................................................................................14
8.7 Receipt of Release......................................................................................14
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8.8 Payments on Behalf of Persons Under Incapacity..........................................................14
8.9 Limitation of Rights and Service Relationship...........................................................14
8.10 Headings ...............................................................................................14
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ELCOR CORPORATION
DEFERRED COMPENSATION PLAN
WHEREAS, Elcor Corporation (sometimes referred to herein as the "Company")
desires to establish, effective as of January 1, 2001, the Elcor Corporation
Deferred Compensation Plan to provide supplemental retirement savings benefits
primarily for a select group of management and highly compensated employees of
the Elcor Corporation and its affiliates, and also for outside directors of
Elcor Corporation, through deferrals of salary, commissions, bonuses and other
payment items;
NOW, THEREFORE, the terms of the Plan are as follows:
ARTICLE I
TITLE AND DEFINITIONS
1.1 Title.
This Plan shall be known as the Elcor Corporation Deferred
Compensation Plan.
1.2 Definitions.
Whenever the following words and phrases are used in this Plan, with
the first letter capitalized, they shall have the meanings specified below:
(a) "Account" or "Accounts" shall mean a Participant's Deferral
Account.
(b) "Base Salary" shall mean a Participant's annual base salary,
excluding bonus, incentive compensation and all other remuneration for services
rendered to Company or its subsidiaries and shall be determined without
reduction for any salary reduction contributions to a qualified plan with a
deferral feature under Section 401(k) of the Code or a plan established pursuant
to Section 125 of the Code.
(c) "Beneficiary" or "Beneficiaries" shall mean, at the relevant time,
the person or persons, including a trustee, personal representative or other
fiduciary, last designated by a Participant in accordance with procedures
established by the Committee to receive the benefits specified hereunder in the
event of the Participant's death. No beneficiary designation shall become
effective until it is filed with the Committee. Any designation shall be
revocable at any time through a written instrument filed by the Participant with
the Committee with or without the consent of the previous Beneficiary. However,
no designation of a Beneficiary other than the Participant's spouse shall be
valid unless consented to in writing by the Participant's then existing spouse.
If there is no such designation or if there is no surviving designated
Beneficiary, then the Participant's surviving spouse shall be the Beneficiary.
If there is no surviving spouse to receive any benefits payable in accordance
with the preceding sentence, the duly appointed and currently acting personal
representative of the Participant's estate shall be the Beneficiary. In any case
where there is no such personal representative of the Participant's estate duly
appointed and
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acting in that capacity within 90 days after the Participant's death (or such
extended period as the Committee determines is reasonably necessary to allow
such personal representative to be appointed, but not to exceed 180 days after
the Participants' death), then Beneficiary shall mean the person or persons who
can verify by affidavit or court order to the satisfaction of the Committee that
they are legally entitled to receive the benefits specified hereunder. In the
event any amount is payable under the Plan to a minor, payment shall not be made
to the minor, but instead be paid, unless otherwise required by law, (a) to that
person's living parent(s) to act as custodian, (b) if that person's parents are
then divorced, and one parent is the sole custodial parent, to such custodial
parent, or (c) if no parent of that person is then living, to a custodian
selected by the Committee to hold the funds for the minor under the Uniform
Transfers or Gifts to Minors Act in effect in the jurisdiction in which the
minor resides. If no parent is living and the Committee decides not to select
another custodian to hold the funds for the minor, then payment shall be made to
the duly appointed and currently acting guardian of the estate for the minor or,
if no guardian of the estate for the minor is dully appointed and currently
acting within 60 days after the date the amount becomes payable, payment shall
be deposited with the court having jurisdiction over the estate of the minor.
Payment by the Company pursuant to any unrevoked Beneficiary designation, or to
the Participant's estate if no such designation exists, of all benefits owed
hereunder shall terminate any and all liability of the Company.
(d) "Board of Directors" or "Board" shall mean the board of directors
of Elcor Corporation.
(e) "Bonuses" shall mean such cash amounts of income in addition to
Base Salary and Commissions as Company or its subsidiaries may determine to pay
to a Participant, as determined in the sole and absolute discretion of Company,
or as determined by a formula established in the discretion of the Company.
(f) "Code" shall mean the Internal Revenue Code of 1986, as amended,
and the Treasury Regulations promulgated thereunder.
(g) "Committee" shall mean the committee appointed by the Board to
administer the Plan in accordance with Article VII.
(h) "Commissions" shall mean a Participant's remuneration earned from
Company or its subsidiaries that is designated as such and that is dependent on
sales activity and does not constitute Base Salary or Bonuses.
(i) "Company" shall mean Elcor Corporation and any successor
corporations or entities and any corporation or entity that adopts the Plan
pursuant to Section 8.5 hereof.
(j) "Company Credits" shall mean Company Credits described in Section
3.2 hereof.
(k) "Compensation" shall mean the Base Salary, Commissions, Bonuses,
Fees and Excess 401(k) Contributions that the Participant is entitled to receive
from the Company.
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(l) "Deferral Account" shall mean the bookkeeping account maintained
by the Committee for each participant as described in Article IV hereof.
(m) "Deferral Year" shall mean the Plan Year in which an item of
Compensation that is deferred hereunder would have been paid absent such
deferral.
(n) "Distributable Amount" shall mean, as of any particular time, the
balance in the Participant's Deferral Account as determined under Article IV,
less (i) any credited amounts that are attributable to any non-vested Company
Credits and (ii) any net earnings on such non-vested Company Credits.
(o) "Earnings Rate" shall mean, for each Fund, an amount equal to the
net rate of gain or loss on the assets of such Fund during each month or other
relevant period.
(p) "Effective Date" shall mean January 1, 2001.
(q) "Eligible Employee" shall mean (i) a member of a select group of
management or a highly compensated employee (for purposes of Sections 201(2),
301(a)(3) and 401(a)(1) of ERISA) of the Company that adopts this Plan, or (ii)
a non-employee director of Elcor Corporation, who, in either case is designated
by the Committee for participation in this Plan and who has not been removed by
the Committee from participation.
(r) "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
(s) "Excess 401(k) Contributions" shall mean, with respect to a
Participant, the sum of the "excess deferrals" (as defined in Section 402(g) of
the Code), "excess contributions" (as defined in Section 401(k) of the Code) and
"excess aggregate contributions" but subject to vesting (as defined in Section
401(m) of the Code) that are distributable to the Participant under the terms of
the 401(k) Plan during a Plan Year.
(t) "Fees" shall mean all fees and retainers paid as compensation by
the Company to a Participant who is a non-employee director of the Company.
(u) "401(k) Plan" shall mean the Amended and Restated Elcor
Corporation Employees' 401(k) Savings Plan, as it shall be amended from time to
time.
(v) "Fund" or "Funds" shall mean one or more of the investment funds
selected and communicated by the Committee pursuant to Section 3.4(a).
(w) "Hardship Distribution" shall mean a distribution described in
Section 6.3 hereof.
(x) "Initial Election Period" shall mean, for those who are Eligible
Employees on the Effective Date, the 30-day period immediately prior to such
date [this assumes adoption of plan more than 30 days before effective date]
and, for all other Eligible Employees, the 30-day period following the time he
or she is designated by the Committee as an Eligible Employee.
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(y) "Participant" shall mean any Eligible Employee who becomes a
Participant in accordance with Article II.
(z) "Payment Date" shall mean one of the following dates selected on a
deferral form by a Participant with respect to a deferral of an item of
Compensation with respect to a Deferral Year: (i) as soon as practicable after
termination of Participant's service, but in no event later than six (6) months
after such termination; (ii) April 1 of any year selected between and including
the third through the fifteenth year following the Deferral Year; or (iii) April
1 of the year the Participant attains, or would have attained, age 62.
(aa) "Plan" shall mean the Elcor Corporation Deferred Compensation
Plan set forth herein, or as amended from time to time.
(bb) "Plan Year" shall mean the 12 consecutive month period beginning
on each January 1 and ending on December 31.
ARTICLE II
PARTICIPATION
An Eligible Employee shall become a Participant in the Plan by electing to
defer a portion of his or her Compensation in accordance with Section 3.1. An
Eligible Employee who completes the requirements of the preceding sentence shall
commence participation in this Plan as of the first day of the month in which
Compensation is so deferred. Notwithstanding any provision to the contrary, if
it is determined or reasonably believed, based on a judicial or administrative
determination or an opinion of legal counsel of Elcor Corporation or of the
Committee that a Participant is not a member of a select group of management or
a highly compensated employee for purposes of ERISA, such individual shall cease
to be a Participant and his Distributable Amount shall be paid to him in a lump
sum as soon as practicable after the determination is made that he is not such a
management or highly compensated employee.
ARTICLE III
DEFERRALS
3.1 Elections to Defer Base Salary, Bonuses, Fees or Commissions. A
Participant may elect in accordance with this Section 3.1 to suspend current
payment of his Bonuses, Base Salary, Fees or Commissions and agree to payment of
such amounts in future years.
(a) General Rule. The Base Salary, Bonuses, Fees and Commissions that
a Participant may elect on a deferral form prescribed by the Committee to defer
are such items of Compensation which are, with the exception for Bonuses set
forth in Section 3.1(b) hereof, wholly earned after the time at which the
Participant makes his or her election to defer in accordance with this Section
3.1 and shall be a flat dollar amount or percentage which shall not exceed 100%
of the Participant's Base Salary, Bonuses, Fees and/or Commissions, provided
that the total amount deferred by a Participant shall be limited in any calendar
year, if necessary, to satisfy Social Security taxes (including Medicare),
income taxes and employee benefit plan withholding requirements as determined in
the sole and absolute discretion of the Committee.
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The minimum deferral which may be made in any Plan Year by a Participant shall
not be less than $2,500, provided such minimum deferral can be satisfied from
deferrals of Base Salary, Bonus, Fees and/or Commissions. A Participant may
separately elect to defer a different amount or percentage with respect to each
of his or her Base Salary, Bonuses, Fees and/or Commissions. The Committee may
prescribe that all elections pursuant to this Section be made for an entire Plan
Year on or before a date in the immediately preceding Plan Year. At the time a
deferral election is made the Participant shall select on the prescribed
deferral form a Payment Date for all such items of Compensation that are
deferred.
(b) Initial Election Period. Subject to the provisions of Article II,
each newly designated Eligible Employee making his or her first deferral
election under the Plan may initially elect to defer Base Salary, Bonuses, Fees
and/or Commissions by filing with the Committee an election that conforms to the
requirements of this Section 3.1, on a deferral form prescribed by the
Committee, no later than the last day of his or her Initial Election Period. Any
such new Participant may, in the discretion of the Committee, be permitted to
defer any Bonus payable for the year of the election that may have been
partially earned, but as to which the probability of payment or the amount of
such payment is substantially uncertain at the time of such deferral election.
(c) Duration of Deferral Election. An election to defer Base Salary,
Bonuses, Fees or Commissions under the Plan shall remain in effect until
modified or terminated. A Participant may increase, decrease or terminate a
deferral election with respect to Base Salary, Bonuses, Fees or Commissions for
any subsequent Plan Year by filing a new election on or before December 31,
which election shall be effective on the first day of the next following Plan
Year.
(d) Elections After the Initial Election Period. Subject to the
limitations of Section 3.1(a) above, any Eligible Employee who fails to elect to
defer Compensation pursuant to this Section during his or her Initial Election
Period may subsequently become a Participant, and any Participant who has
terminated a prior Compensation deferral election may elect to again defer
Compensation pursuant to this Section, by filing an election, on a form
prescribed by the Committee, to defer Compensation as described in Sections
3.1(a) above. An election to defer such Compensation must be filed in a timely
manner in accordance with the other provisions of this Section 3.1.
3.2 Discretionary Credits by Company. The Board may, in its sole
discretion, agree at any time to contribute and allocate amounts of deferred
compensation to Participants hereunder. Such amounts shall be in addition to any
deferrals by Participants under Section 3.1 hereof and are herein referred to as
"Company Credits." Company Credits may be based on individual or business
performance criteria and shall be subject to the same vesting provisions as
apply to employer matching contributions in the 401(k) Plan. Participants shall
be notified of the terms and provisions of all Company Credits. The Payment Date
for Company Credits shall be as set forth by a Participant on a deferral form in
effect for the year in which the Company Credits are contributed.
3.3 Deferral of Excess 401(k) Contributions. If the Participant has so
elected prior to a Plan Year on the prescribed Compensation deferral form and if
such election remains in effect
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for that Plan Year, then all Excess 401(k) Contributions that would otherwise be
distributed to the Participant during the Plan Year shall be deferred under the
Plan and added to the Participant's Deferral Account under the Plan. The Payment
Date for Excess 401(k) Contributions shall be as set forth by the Participant on
a deferral form in effect for the year in which the Excess 401(k) Contributions
are deferred.
3.4 Deemed Investment Elections.
(a) Each Participant shall be entitled to designate, on a form
provided by the Committee, the investment funds designated by the Committee in
its discretion (which shall include an interest bearing account bearing interest
at a fixed or variable rate) that the Participant's Deferral Account will be
deemed to be invested in for purposes of determining the amount of earnings (and
losses) to be credited (or debited) to that Account. In making the designation
pursuant to this Section 3.4, the Participant may specify that all or any
multiple of his Deferral Account (equal to or greater than 5% (but not more than
100%) in whole percentage increments) shall be deemed to be invested in one or
more of the investment funds selected and communicated from time to time by the
Committee (the "Funds"). Effective as of the end of any calendar quarter, a
Participant may change the designation made under this Section 3.4 (as to both
existing and future deferrals) by filing an election, on a form provided by the
Committee, at least 30 days prior to the end of such quarter. If a Participant
fails to elect a fund or funds under this Section 3.4, he or she shall be deemed
to have elected an interest bearing account designated by the Committee.
(b) Although the Participant may designate deemed investments, neither
the Company, nor the Committee shall be obligated to actually make any such
investments. The Earnings Rate of each of the Fund(s) designated by a
Participant shall be used to determine the amount of earnings or losses to be
credited or debited to Participant's subaccount for that Fund under Article IV.
(c) The Committee shall include among the Funds a Fund or Funds that
are deemed to be invested in shares of Common Stock of Elcor Corporation (the
"Company Stock Fund"). Any investment into or out of the Company Stock Fund
shall be regulated by the Committee so as to comply with any applicable timing
or other requirements of Rule 16b-3 promulgated under the Securities Act of
1934.
ARTICLE IV
DEFERRAL ACCOUNTS
4.1 Deferral Accounts.
The Committee shall establish and maintain a Deferral Account for each
Participant under the Plan. Each Participant's Deferral Account shall be further
divided into separate subaccounts ("investment fund subaccounts"), each of which
corresponds to a Fund elected by the Participant pursuant to Section 3.4(a). A
Participant's Deferral Account shall be credited or debited as follows:
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(a) No later than the last day of each month (or at such more frequent
intervals as may be prescribed by the Committee), the Committee shall credit the
investment fund subaccounts of the Participant's Deferral Account with an amount
equal to Compensation deferred by the Participant in accordance with the
Participant's election under Section 3.1 that would otherwise have been paid to
Participant during such month. The portion of the Participant's deferred
Compensation that the Participant has elected to be deemed invested in a
particular Fund shall be credited to the investment fund subaccount
corresponding to that Fund;
(b) The Committee shall, as directed by the Board, credit the
investment fund subaccounts of the Participant's Deferral Account with an amount
equal to any Company Credits that the Board may grant from time to time.
(c) The amount of the Maximum 401(k) Contribution for a Participant
made pursuant to Section 3.3 shall be deducted pro rata from the various
investment subaccounts (excluding the Company Stock Fund) of the Participant at
the time specified in Section 3.3.
(d) As of the last day of each month, each investment fund subaccount
of a Participant's Deferral Account shall be credited (or debited) with earnings
(or losses) in an amount equal to that determined by multiplying the balance
credited to such investment fund subaccount as of the last day of the preceding
month by the Earnings Rate for the corresponding Fund.
ARTICLE V
VESTING
All amounts credited to a Participant's Deferral Account, except for all
amounts attributable to Company Credits, shall be 100% vested at all times. All
amounts in the Deferral Account that are attributable to Company Credits shall
be vested at any particular time according to the vesting schedule applicable to
matching contributions in the 401(k) Plan.
ARTICLE VI
DISTRIBUTIONS
6.1 Normal Distributions. Subject to Section 6.3 below, if a Participant
terminates service with the Company and all other controlled group affiliates of
Elcor Corporation and has an Account balance of more than $25,000, the Company
shall pay such Participant's Distributable Amount to the Participant (and after
his or her death to his or her Beneficiary) from among the following optional
forms of benefit as elected by the Participant on the most recent effective
deferral form executed and given by the Participant and at the time or times
elected in such form:
(1) A single lump sum distribution beginning on the Participant's
Payment Date.
(2) Substantially equal monthly, quarterly or annual installments
over two (2) to fifteen (15) years beginning on the Participant's
Payment Date.
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With respect to any item of income deferred pursuant to this Plan, a
Participant may once modify the form he or she has elected for the payment of
the deferred item and/or extend the Payment Date that he or she has previously
elected with respect to the deferral, provided such modification of the form
and/or the Payment Date occurs more than one (1) year before the original
Payment Date.
In the event a Participant fails to properly elect an optional form of
benefits, the Participant's Distributable Amount will be distributed in forty
(40) quarterly installments beginning on his or her Payment Date.
The Participant's Account shall continue to be credited (or debited)
with earnings (or losses) pursuant to Section 4.1 of the Plan until the
Participant's entire Distributable Amount under the Plan has been distributed.
The foregoing notwithstanding, in the case of a Participant who
terminates service with the Company and all other controlled group affiliates of
Elcor Corporation and has a Distributable Amount of $25,000 or less, the
Distributable Amount shall be paid to the Participant (or after his or her death
to his or her Beneficiary) in a lump sum distribution on the Participant's
Payment Date.
In the event a Participant dies after he has left service with the
Company and after distributions have commenced hereunder, the balance of any
Distributable Amount shall continue to be paid to the designated Beneficiary in
the same mode as it was being paid to the Participant.
6.2 Hardship Distributions. The Committee may, in its sole discretion,
permit a distribution to a participant of all or a portion of the Participant's
Distributable Amount in the event the Committee determines that such
distribution is reasonably needed to satisfy an emergency need arising from an
unforeseeable emergency ("Hardship Distribution"). No Hardship Distribution may
exceed the amount reasonably needed to satisfy the emergency need. For purposes
of this Section, the term "unforeseeable emergency" shall mean severe financial
hardship to the Participant resulting from a sudden and unexpected illness or
accident of the Participant or of a dependent (as defined in Code section
152(a)) of the Participant, loss of the Participant's property due to casualty,
or other similar extraordinary and unforeseeable circumstances arising as a
result of the events beyond the control of the Participant. 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:
(i) through reimbursement or compensation by insurance or
otherwise,
(ii) by liquidation of the Participant's assets, to the extent
the liquidation of such assets would not itself cause
severe financial hardship, or
(iii) by cessation of deferrals under the Plan.
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Examples of what are not considered to be unforeseeable emergencies include the
need to send a Participant's child to college or the desire to purchase a home.
6.3 Accelerated Payments Notwithstanding any other provision of this
Article VI and regardless of the value of the Account, if a Participant
terminates service with the Company for any reason other than death, disability
or retirement after attainment of age 62 years (or after attainment of age 70 in
the case of Participants who are non-employee directors of Elcor Corporation),
the Committee may, in its sole and absolute discretion, elect to override the
provisions of any deferral form that has been executed and given by the
Participant by (i) disregarding the Payment Date and accelerating the payment of
the Participant's Distributable Amount to an earlier date which may be as early
as is administratively feasible following such termination of service, and/or
(ii) electing to pay such Distributable Amount to the Participant in the form of
a single lump sum distribution or in installments over a term that is no longer
than the installment payout term elected by the Participant and with a frequency
that is no less frequent than the installment frequency elected by the
Participant.
6.4 Inability to Locate Participant.
In the event that the Committee is unable to locate a Participant or
Beneficiary within two years following the required Payment Date, the amount
allocated to the related Deferral Account, shall be forfeited and shall accrue
no further interest or earnings. If, after such forfeiture, the Participant or
Beneficiary later claims such benefit, such benefit shall be reinstated without
the accrual of interest or earnings thereon after the Payment Date.
ARTICLE VII
ADMINISTRATION
7.1 Committee.
A committee of individuals (who may, but need not, be members of the
Board) shall be appointed by, and serve at the pleasure of, the Board to
administer the Plan (the "Committee"). The number of members comprising the
Committee shall be determined by the Board which may from time to time vary the
number of members. A member of the Committee may resign by delivering a written
notice of resignation to the Board. The Board may remove any member by
delivering a certified copy of its resolution of removal to such member.
Vacancies in the membership of the Committee shall be filled promptly by the
Board.
7.2 Committee Action.
The Committee shall act at meetings by affirmative vote of a majority
of the members of the Committee. Any action permitted to be taken at a meeting
may be taken without a meeting if, prior to such action, a written consent to
the action is signed by all members of the Committee and such written consent is
filed with the minutes of the proceedings of the Committee. A member of the
Committee shall not vote or act upon any matter which relates solely to himself
or herself as a Participant. The Chairman or any other member or members of
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the Committee designated by the Chairman may execute any certificate or other
written direction on behalf of the Committee.
7.3 Powers and Duties of the Committee.
(a) The Committee, on behalf of the Participants and their
Beneficiaries, shall enforce the Plan in accordance with its terms, shall be
charged with the general administration of the Plan, and shall have all powers
necessary to accomplish its purposes, including, without limitation, the
following:
(1) To select the Funds in accordance with Section 3.6(a) hereof;
(2) To construe and interpret the terms and provisions of this
Plan;
(3) To compute and certify to the amount and kind of benefits
payable to Participants and their Beneficiaries;
(4) To maintain all records that may be necessary for the
administration of the Plan;
(5) To provide for the disclosure of all information and the
filing or provision of all reports and statements to Participants, Beneficiaries
or governmental agencies as shall be required by law;
(6) To make and publish such rules for the regulation of the Plan
and procedures and forms for the administration of the Plan as are not
inconsistent with the terms hereof;
(7) To appoint a plan administrator or any other agent, and to
delegate to them such powers and duties in connection with the administration of
the Plan as the Committee may from time to time prescribe;
(8) To delegate other persons, including employees of Elcor
Corporation and its affiliates, to assist the Committee in the carrying out of
its duties hereunder and to act for the Committee; and
(9) To take all actions necessary for the administration of the
Plan.
7.4 Construction and Interpretation.
The Committee shall have full discretion to construe and interpret the
terms and provisions of this Plan, which interpretations or construction shall
be final and binding on all parties, including, but not limited to, the Company
and any Participant or Beneficiary. The Committee shall administer such terms
and provisions in a uniform and nondiscriminatory manner and in full accordance
with any and all laws applicable to the Plan.
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7.5 Information.
To enable the Committee to perform its functions, the Company shall
supply full and timely information to the Committee on all matters relating to
the Compensation of all Participants, their deaths or other events which cause
termination of their participation in the Plan, and such other pertinent facts
as the Committee may require.
7.6 Compensation, Expenses and Indemnity.
(a) The members of the Committee shall serve without compensation for
their services hereunder, except for such Compensation as they may receive as
members of the Board of Directors.
(b) The Committee is authorized at the expense of Elcor Corporation to
employ such legal counsel as it may deem advisable to assist in the performance
of its duties hereunder. Expenses and fees in connection with the administration
of the Plan shall be paid by Elcor Corporation.
(c) To the extent permitted by applicable state law, the Company shall
indemnify and save harmless the Committee and each member thereof, the Board of
Directors and any delegate of the Committee who is an employee of the Company
against any and all expenses, liabilities and claims, including legal fees to
defend against such liabilities and claims arising out of their discharge in
good faith of responsibilities under or incident to the Plan, other than
expenses and liabilities arising out of willful misconduct. This indemnity shall
not preclude such further indemnities as may be available under insurance
purchased by the Company or provided by the Company under any bylaw, agreement
or otherwise, as such indemnities are permitted under state law.
7.7 Quarterly Statements.
Under procedures established by the Committee, a Participant shall
receive a statement showing the Distributable Amount (broken down by investment
fund subaccount) with respect to such Participant's Accounts on a quarterly
basis as of each March 31, June 30, September 30 and December 31.
7.8 Disputes.
(a) Claim.
A person who believes that he or she is being denied a benefit to
which he or she is entitled under the Plan (hereinafter referred to as
"Claimant") must file a written request for such benefit with the Committee,
setting forth his or her claim. The request must be addressed to the President
or other equivalent officer of the Committee at its then principal place of
business.
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(b) Claim Decision.
Upon receipt of a claim, the Committee shall advise the Claimant
that a reply will be forthcoming within ninety (90) days and shall, in fact,
deliver such reply within such period. The Committee may, however, extend the
reply period for an additional ninety (90) days for special circumstances.
If the claim is denied in whole or in part, the Committee shall
inform the Claimant in writing, using language calculated to be understood by
the Claimant, setting forth: (A) the specified reason or reasons for such
denial; (B) the specific reference to pertinent provisions of the Plan on which
such denial is based; (C) a description of any additional material or
information necessary for the Claimant to perfect his or her claim and an
explanation of why such material or such information is necessary; (D)
appropriate information as to the steps to be taken if the Claimant wishes to
submit the claim for review, the (E) the time limits for requesting a review
under subsection (c).
(c) Review of Decision.
Denials of claims shall be reviewed by the Committee. Within
sixty (60) days after the Committee's receipt of a request for review, after
considering all materials presented by the Claimant, the Committee will inform
the Claimant in writing, in a manner calculated to be understood by the
Claimant, of its decision, setting forth the specific reasons for the decision
containing specific references to the pertinent provisions of the Plan on which
the decision is based. If special circumstances require that the sixty (60) day
time period be extended, the Committee will so notify the Claimant and will
render the decision as soon as possible, but no later than one hundred twenty
(120) days after receipt of the request for review.
ARTICLE VIII
MISCELLANEOUS
8.1 Unsecured General Creditor.
Participants and their Beneficiaries, heirs, successors, and assigns
shall have no legal or equitable rights, claims, or interest in any specific
property, investments or assets of the Company or of any trust or fund that may
be established or purchased by the Company to help satisfy its obligations
hereunder. No assets of the Company shall be held in any way as collateral
security for the fulfilling of the obligations of the Company under this Plan.
Any and all of the Company's assets shall be, and remain, the general unpledged,
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, and the rights of the Participants and Beneficiaries shall
be no greater than those of unsecured general creditors. The Company may satisfy
its obligations hereunder by causing a third party to make any of the payments
required of the Company hereunder. It is the intention of the Company that this
Plan be unfunded for purposes of the Code and for purposes of Title I of ERISA.
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8.2 Restriction Against Assignment.
The Company shall pay all amounts payable hereunder only to the person
or persons designated pursuant to the provisions of the Plan and not to any
other person or corporation. No part of a Participant's Accounts shall be liable
for the debts, contracts, or engagements of any Participant, his or her
Beneficiary, or successors in interest, nor shall a Participant's Accounts be
subject to execution by levy, attachment, or garnishment or by any other legal
or equitable proceeding, nor shall any such person have any right to alienate,
anticipate, sell, transfer, commute, pledge, encumber, or assign any benefits or
payments hereunder in any manner whatsoever. If any Participant, Beneficiary or
successor in interest is adjudicated bankrupt or purports to anticipate,
alienate, sell, transfer,, commute, assign, pledge, encumber or charge any
distribution or payment from the Plan, voluntarily or involuntarily, such
distribution or payment shall be null and void and of no force or effect. The
foregoing notwithstanding, however, the Company may pay any benefits, as and
when they may become due under the terms of this Plan, as ordered by a court of
competent jurisdiction in any adjudication involving a Participant's obligations
for child support, spousal maintenance, alimony, marital property division or
other matrimonial or dependent obligations.
8.3 Withholding.
There shall be deducted from each payment made under the Plan or any
other Compensation payable to the Participant (or Beneficiary) all taxes and
other amounts which are required to be withheld by the Company in respect of
such payment or this Plan. The Company shall have the right to reduce any
payment (or compensation) of a Participant by the amount of cash sufficient to
provide such taxes and amounts.
8.4 Amendment, Modification, Suspension or Termination.
The Board may amend, modify, suspend or terminate the Plan in whole or
in part, except that no amendment, modification, suspension or termination shall
have any retroactive effect to reduce any amounts allocated to a Participant's
Accounts and the Plan may not be terminated solely in order to accelerate the
payment of benefits. In the event that this Plan is terminated, the amounts
credited to a Participant's Accounts shall be distributed to the Participant or,
in the event of his or her death, his or her Beneficiary in a lump sum within
thirty (30) days following the date of Plan termination.
8.5 Adoption by Affiliates.
With the permission of the Board, the Plan may be adopted by any
corporation or entity which is a member of a controlled group (within the
meaning of Section 414(b) or (c) of the Code) of which Elcor Corporation is a
component member. Such adoption may be on such terms and conditions as the Board
may prescribe. In the event of such an adoption the term "Company" shall, when
used herein, refer to Elcor Corporation and each such other adopting corporation
or entity.
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8.6 Governing Law.
This Plan shall be construed, governed and administered in accordance
with the laws of the State of Texas.
8.7 Receipt of Release.
Any payment to a Participant or the Participant's Beneficiary in
accordance with the provisions of the Plan shall, to the extent thereof, be in
full satisfaction of all claims against the Committee and the Company. The
Committee may require such Participant or Beneficiary, as a condition precedent
to any such payment, to execute a receipt and release to such effect.
8.8 Payments on Behalf of Persons Under Incapacity.
In the event that any amount becomes payable under the Plan to a
person who, in the sole judgment of the Committee, is considered by reason of
physical or mental condition to be unable to give a valid receipt therefore, the
Committee may direct that such payment be made to any person determined by the
Committee, in its sole judgment, to have assumed the guardianship or care of
such person. Any payment made pursuant to such determination shall constitute a
full release and discharge of the Committee and the Company.
8.9 Limitation of Rights and Service Relationship.
This Plan shall not be construed as a contract of employment or other
service. Neither the establishment of the Plan, nor the creating of any fund or
account, nor the payment of any benefits shall be construed as giving to any
Participant or other person any legal or equitable right against the Company,
except as provided in the Plan and Trust; and in no event shall the terms of
employment or other service of any employee or Participant be modified or in any
way be affected by the provisions of the Plan and Trust.
8.10 Headings.
Headings and subheadings in this Plan are inserted for convenience of
reference only and are not to be considered in the construction of the
provisions hereof.
IN WITNESS WHEREOF, Elcor Corporation has caused this document to be
executed by its duly authorized officer as of the Effective Date.
ELCOR CORPORATION
By: /s/ Harold K. Work
--------------------------------------
Harold K. Work,
Chairman of the Board, President
and Chief Executive Officer
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