Exhibit 10.1
NORTHLAND CRANBERRIES, INC. SEVERANCE AND STAY BONUS PLAN
ARTICLE I
EFFECTIVE DATE AND PURPOSE
Northland Cranberries, Inc. has adopted this Northland Cranberries,
Inc. Severance and Stay Bonus Plan (the "Plan") effective April 14, 2000. The
Company recognizes that circumstances may arise in which a Change in Control of
the Company (as defined herein) occurs, through acquisition or otherwise,
thereby causing uncertainty about the future employment of certain key employees
of the Company without regard to such employee's competence or past
contributions, which uncertainty may result in the loss of valuable services of
the employee to the detriment of the Company and its shareholders. The purpose
of this Plan is to provide an incentive for such employees to remain employed
with the Company during certain periods during which a Change in Control of the
Company is contemplated, and to provide reasonable security to such employees
against changes in the employee's relationship with the Company in the event of
any such Change in Control of the Company, thereby permitting such employees to
continue to perform their duties and responsibilities with reference only to the
best interests of the Company and its shareholders.
ARTICLE II
DEFINITIONS
Section 2.1 Act. "Act" means the Securities Exchange Act of 1934, as
amended.
Section 2.2 Affiliate and Associate. The terms "Affiliate" and
"Associate" shall have the respective meanings ascribed to such terms in Rule
12b-2 of the General Rules and Regulations of the Act.
Section 2.3 Announcement Date. "Announcement Date" means the date on
which the Company issues a public announcement that is has retained investment
advisors for the purpose of advising the Company with respect to a possible sale
or business combination involving the Company that, if consummated, would result
in a Change in Control of the Company.
Section 2.4 Base Compensation. "Base Compensation" means the Eligible
Employee's annual rate of base pay and opportunity for bonuses, prior to
reduction for (i) taxes, (ii) contributions to any qualified or nonqualified
retirement plan, or (iii) contributions to a Section 125 cafeteria plan.
Section 2.5 Beneficial Owner. For purposes of this Plan, a Person
shall be deemed to be the "Beneficial Owner" of any securities:
(a) which such Person or any of such Person's Affiliates or Associates
has the right to acquire (whether such right is exercisable immediately or only
after the passage of time) pursuant to any agreement, arrangement or
understanding, or upon the
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exercise of conversion rights, exchange rights, rights, warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the Beneficial
Owner of, or to beneficially own, securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or any of such Person's
Affiliates or Associates until such tendered securities are accepted for
purchase;
(b) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to vote or dispose of or has
"beneficial ownership" of (as determined pursuant to Rule 13d-3 of the General
Rules and Regulations under the Act), including pursuant to any agreement,
arrangement or understanding; provided, however, that a Person shall not be
deemed the Beneficial Owner of, or to beneficially own, any security under this
Subsection (b) as a result of an agreement, arrangement or understanding to vote
such security if the agreement, arrangement or understanding: (i) arises solely
from a revocable proxy or consent given to such Person in response to a public
proxy or consent solicitation made pursuant to, and in accordance with, the
applicable rules and regulations under the Act and (ii) is not also then
reportable on a Schedule 13D under the Act (or any comparable or successor
report); or
(c) which are beneficially owned, directly or indirectly, by any other
Person with which such Person or any of such Person's Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting (except pursuant to a revocable proxy as described in Subsection
(b)(i) above) or disposing of any voting securities of the Company.
Section 2.6 Board of Directors. "Board of Directors" means the Board
of Directors of the Company.
Section 2.7 Cause. "Cause" for termination of the Eligible Employee's
employment from the Company shall be limited to (a) misappropriation by the
Eligible Employee of funds of the Company; (b) the Eligible Employee personally
and secretly obtaining profits from dealings with the Company; (c) the Eligible
Employee's unreasonable neglect of, or refusal to perform, his duties or
responsibilities; or (d) the Eligible Employee's conviction of a serious crime
involving moral turpitude.
Section 2.8 Change in Control Date. "Change in Control Date" means the
first date on which a Change in Control of the Company has occurred.
Section 2.9 Change in Control of the Company. A "Change in Control of
the Company" shall be deemed to occur if:
(a) any Person (other than any employee benefit plan of the Company,
any subsidiary of the Company or any Person organized, appointed or established
pursuant to the terms of any such benefit plan or any Person who currently owns,
or is the Beneficial Owner of, 25% or more of the combined voting power of the
Company's currently outstanding securities) is or becomes the Beneficial Owner
of securities of the
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Company representing at least 25% of the combined voting power of the Company's
then outstanding securities;
(b) there shall be consummated (i) any consolidation, merger, share
exchange or other business combination of the Company in which the Company is
not the continuing or surviving corporation or pursuant to which shares of the
Company's capital stock would be converted into cash, securities or other
property, other than a merger of the Company in which the holders of the
Company's capital stock immediately prior to the merger have the same
proportionate ownership of capital stock of the surviving corporation
immediately after the merger, or (ii) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all, or
substantially all, of the consolidated assets of the Company; or
(c) the shareholders of the Company approve any plan or proposal for
the liquidation or dissolution of the Company.
Section 2.10 Code. "Code" means the Internal Revenue Code of 1986,
including any amendments or successor tax codes.
Section 2.11 Company. "Company" means Northland Cranberries, Inc. and
any successor thereto or assignee thereof pursuant to Section 5.1.
Section 2.12 Comparable Position. "Comparable Position" means, with
respect to each Eligible Employee, such Eligible Employee's employment with the
Company during the Employment Period in a position that provides to the Eligible
Employee:
(a) Base Compensation at a rate that is at least ninety percent (90%)
of the Eligible Employee's Base Compensation as in effect immediately prior to
the Change in Control Date;
(b) Participation in all benefit plans or arrangements providing for
benefits for the Company's salaried employees in general, including but not
limited to group life insurance, hospitalization, medical, dental, and profit
sharing plans; and
(c) Participation in all other fringe benefit or compensation plans or
arrangements applicable to employees of the Company of comparable status and
position to the Eligible Employee, including but not limited to relocation
benefits, deferred compensation, split-dollar life insurance, supplemental
retirement, stock option, stock appreciation, stock bonus and similar or
comparable plans or arrangements.
Section 2.13 Eligible Employee. "Eligible Employee" means an employee
of the Company listed on Schedule A or Schedule B attached hereto.
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Section 2.14 Employment Period. "Employment Period" means a period
commencing on the Change in Control Date and ending at 11:59 p.m. Central
Standard Time on the following:
(a) For Category One Employees (as listed on Schedule A attached
hereto), the date that is one year following the Change in Control Date;
(b) For Category Two Employees (as listed on Schedule A attached
hereto), the date that is nine months following the Change in Control Date; and
(c) For Category Three and Category Four Employees (as listed on
Schedule A attached hereto), the date that is six months following the Change in
Control Date.
Section 2.15 Enterprise Value. "Enterprise Value" means, in connection
with a Change in Control of the Company, the sum of (a) the consideration paid
to the shareholders of the Company, and (b) the Company's funded debt.
Section 2.16 ERISA. "ERISA" means the Employee Retirement Income
Security Act of 1974, as amended.
Section 2.17 Person. "Person" means any individual, firm, partnership,
corporation or other entity, including any successor (by merger or otherwise) of
such entity, or a group of any of the foregoing acting in concert.
ARTICLE III
PAYMENT CONDITIONS
Section 3.1 Stay Bonus. Subject to the provisions of Article IV, each
Eligible Employee listed on Schedule A who is continuously employed by the
Company during the period beginning on the Announcement Date and ending on the
day immediately preceding the Change in Control Date shall be eligible to
receive, and the Company shall promptly pay, a bonus in an amount determined in
the sole and absolute discretion of the management of the Company, which amount
shall not exceed the maximum amount indicated for such Eligible Employee on
Schedule A attached hereto.
Section 3.2 Severance Pay. Subject to the provisions of Article IV, in
the event of an Eligible Employee's Covered Termination (as defined below), the
Eligible Employee shall be entitled to receive, and the Company shall promptly
pay, the amount specified with respect to such Eligible Employee on Schedule A
attached hereto, which corresponds to whether the Covered Termination represents
an "A Termination" or "B Termination." A "Covered Termination" means a
termination of the Eligible Employee's employment from the Company prior to the
end of the Employment Period as a result of:
(a) A Termination. Any of the following: (i) the Company's termination
of such Eligible Employee's employment for any reason other than Cause; (ii) the
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Eligible Employee's voluntary termination of employment from the Company as a
result of the Company's failure to provide a Comparable Position for such
Eligible Employee; or (iii) the Eligible Employee's voluntary termination of
employment from the Company as a result of a requirement by the Company that the
Eligible Employee's services be principally rendered in an office or location
that is more than thirty-five (35) miles from the office or location at which
the Eligible Employee was principally employed immediately prior to the Change
in Control Date, and for which the Company fails to provide relocation benefits
applicable to employees of the Company of comparable status and position to the
Eligible Employee in connection with such relocation.
(b) B Termination. The Eligible Employee's voluntary termination of
employment from the Company as a result of a requirement by the Company that the
Eligible Employee's services be principally rendered in an office or location
that is more than thirty-five (35) miles from the office or location at which
the Eligible Employee was principally employed immediately prior to the Change
in Control Date, and for which the Company provides relocation benefits
applicable to employees of the Company of comparable status and position to the
Eligible Employee in connection with such relocation.
Section 3.3 Change of Control Payment. Subject to the provisions of
Article IV, each Eligible Employee who is listed on Schedule B and is employed
by the Company on the day immediately preceding the Change in Control Date shall
be eligible to receive, and the Company shall promptly pay, a change in control
payment in the amount indicated for such Eligible Employee on Schedule B
attached hereto.
ARTICLE IV
PAYMENT TERMS
Section 4.1 Payment. Subject to the limits set forth in Sections 4.2
and 4.3, any payment due under Section 3.1 or Section 3.3 shall be paid to the
Eligible Employee in cash equivalent on the Change in Control Date, and any
payment due under Section 3.2 shall be paid to the Eligible Employee in cash
equivalent no later than ten (10) business days after the Eligible Employee's
Covered Termination. The Eligible Employee shall not be required to mitigate the
amount of any such payment by securing other employment or otherwise, nor will
such payment be reduced by reason of the Eligible Employee securing other
employment or for any other reason. The payments provided hereunder shall be
provided in addition to any other severance payments to which the Eligible
Employee would be entitled under any employment agreement then in effect.
Section 4.2 Parachute Limitation. It is the intention of the Company
that no portion of any payment due hereunder, or payments to or for the benefit
of the Eligible Employee under any other agreement or plan of the Company,
regardless of whether such payment or benefit was paid or provided for prior to
the Covered Termination (herein all collectively referred to as the "Total
Payments"), be deemed to
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be an "excess parachute payment" as defined in Section 280G of the Code. The
present value of the Total Payments and any other payments to or for the benefit
of the Eligible Employee in the nature of compensation, receipt of which are
contingent on the Change in Control of the Company and to which Section 280G of
the Code or any successor provision thereto applies (in the aggregate "Total
Benefits") shall not exceed an amount equal to one dollar less than the maximum
amount which the Eligible Employee may receive without becoming subject to the
tax imposed by Section 4999 of the Code or any successor provision (the "Excise
Tax") or which the Company may pay without loss of deduction under Section
280G(a) of the Code or any successor provision thereto. Present value for
purposes of this Plan shall be calculated in accordance with Section 280G(d)(4)
of the Code or any successor provision thereto. Within forty-five (45) days
following a Covered Termination or notice by either party to the other of its
belief that there is a payment or benefit due the Eligible Employee which will
result in an excess parachute payment, the Eligible Employee and the Company, at
the Company's expense, shall obtain the opinion of such legal counsel (the
opinion of legal counsel need not be unqualified), and certified public
accountants as the Eligible Employee may choose, which sets forth (a) the amount
of the Base Period Income (as defined below) of the Eligible Employee, (b) the
present value of Total Benefits, and (c) the amount and present value of any
excess parachute payments. In the event that such opinions determine that there
would be an excess parachute payment, the payments otherwise due hereunder or
any other payment determined by such counsel to be includible in the Total
Benefits, shall be reduced or eliminated as specified by the Eligible Employee
in writing delivered to the Company within thirty (30) days of his receipt of
such opinions or, if the Eligible Employee fails to so notify the Company, then
as the Company shall reasonably determine, so that under the bases of
calculation set forth in such opinions the Total Benefits paid to the Eligible
Employee shall be an amount equal to one dollar less than the maximum amount
which the Eligible Employee may receive without becoming subject to the Excise
Tax (the "Reduced Amount"). For purposes of this Plan, the term "Base Period
Income" shall be an amount equal to the Eligible Employee's "annualized
includible compensation" from the Company for the "base period" as defined in
Sections 280G(d)(1) and (2) of the Code or any successor provisions thereto. In
the event that the provisions of Sections 280G and 4999 of the Code or any
successor provision are repealed without succession this provision shall be of
no further force or effect.
As a result of the uncertainty in the application of Section 280G of
the Code at the time of the initial determination by legal counsel and
accountants as provided in this provision, it is possible that amounts will have
been paid or distributed by the Company to or for the benefit of the Eligible
Employee pursuant to this Plan which should not have been so paid or distributed
("Overpayment") or that additional amounts which will have not been paid or
distributed by the Company to or for the benefit of the Eligible Employee
pursuant to this Plan could have been so paid or distributed ("Underpayment"),
in each case, consistent with the calculation of the Reduced Amount hereunder.
In the event that such legal counsel, based upon the assertion of a deficiency
by the Internal Revenue Service against the Company or the Eligible Employee
which such legal counsel believes has a high probability of success
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or other controlling precedent or substantial authority, determines that an
Overpayment has been made, any such Overpayment paid or distributed by the
Company to or for the benefit of the Eligible Employee shall be treated for all
purposes as a loan to the Eligible Employee which the Eligible Employee shall
repay to the Company together with interest at the applicable federal rate
provided for in Section 7872(f)(2) of the Code; provided, however, that no
amount shall be payable by the Eligible Employee to the Company if and to the
extent such payment would not reduce the amount which is subject to the excise
tax under Section 4999 of the Code. In the event that such legal counsel, based
upon controlling precedent or other substantial authority, determines that an
Underpayment has occurred, any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Eligible Employee together with interest at
the applicable federal rate provided for in Section 7872(f)(2) of the Code.
Section 4.3 Individual Severance Payment Limit.
(a) Notwithstanding any other provision of this Plan, on the Change of
Control Date, Schedule A hereto shall be amended to provide for an "Individual
Severance Payment Limit" in the event that the Company determines that the
maximum payments otherwise due hereunder (assuming each Eligible Employee is
entitled to the maximum Stay Bonus and the maximum severance payment provided
hereunder), when aggregated with any payments accrued, made or due under any
other agreement with or plan of the Company which provides for payments to any
employee of the Company in the event of a Change in Control of the Company (in
the aggregate "Total Change in Control Payments"), exceed an amount that is
equal to 1 1/2% of the Enterprise Value (the "Enterprise Value Limit").
(b) The Individual Severance Payment Limit for each Eligible Employee
shall be determined in accordance with the following:
(i) First, the Enterprise Value Limit shall be reduced by an
amount equal to the Total Change in Control Payments which
are accrued by, or have been paid to, all employees as of
the Change in Control Date.
(ii) Second, the Individual Severance Payment Limit for an
Eligible Employee shall be determined by multiplying the
amount determined under (i) above by a fraction, the
numerator of which is the portion of the Total Change in
Control Payments (prior to application of any limit) that is
attributable to such Eligible Employee and the denominator
of which is the Total Change in Control Payments (prior to
application of any limit) of all Eligible Employees.
In no event shall any severance payment made under Section 3.2 exceed
the Individual Severance Payment Limit as determined herein.
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(c) If, after the last date on which a severance payment under Section
3.2 could be made hereunder, the Total Change in Control Payments actually
accrued or paid as of such date do not exceed the Enterprise Value Limit
(without taking into account any reduction thereof), then each Eligible Employee
whose severance payment under Section 3.2 was limited by the Individual
Severance Payment Limit shall be paid the difference between the amount that
should have been paid to such Eligible Employee as severance pursuant to
Schedule A but for the application of the Individual Severance Payment Limit and
the amount actually paid to such Eligible Employee as severance following
application of the Individual Severance Payment Limit (the "True-Up Payment").
In the event that the aggregate True-Up Payments to be made to all affected
Eligible Employees would cause the Total Change in Control Payments to exceed
the Enterprise Value Limit, each affected Eligible Employee shall receive a
True-Up Payment equal to the amount of the Enterprise Value Limit that remains
to be paid multiplied by a fraction, the numerator of which is such Eligible
Employee's True-Up Payment (prior to application of any limit) and the
denominator of which is the aggregate True-Up Payments (prior to application of
any limit) that is to be made to all affected Eligible Employees.
ARTICLE V
SUCCESSORS AND ASSIGNS
Section 5.1 Successors and Assigns of Company. If the Company sells,
assigns or transfers all or substantially all of its business and assets to any
Person or if the Company merges into or consolidates or otherwise combines
(where the Company does not survive such combination) with any Person (any such
event, a "Sale of Business"), then the Company shall assign this Plan to such
Person and cause such Person to expressly assume and agree to perform from and
after the date of such assignment all of the terms, conditions and provisions
imposed by this Plan upon the Company. In case of such assignment by the Company
and the assumption and agreement by such Person, "Company" as used in this Plan
shall thereafter mean the Person that assumes and agrees to perform this Plan as
provided for in this Section 5.1 or that otherwise becomes bound by all the
terms and provisions of this Plan by operation of law, and this Plan shall inure
to the benefit of, and be enforceable by, such Person. The Eligible Employee
shall, in his discretion, be entitled to proceed against any or all of such
Persons, any Person which theretofore was such a successor to the Company and
the Company (as so defined) in any action to enforce any rights of the Eligible
Employee. Except as provided in this Section, this Plan shall not be assignable
by the Company.
Section 5.2 Successors and Assigns of Eligible Employee. An Eligible
Employee shall not have the right to assign, transfer, alienate, anticipate,
pledge or encumber any portion of a payment due hereunder, nor shall such
amounts be subject to seizure by legal process by any creditor of such Eligible
Employee. All rights of the Eligible Employee under this Plan shall inure to the
benefit of and be
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enforceable by the Eligible Employee's personal or legal representatives,
executors, administrators, heirs and beneficiaries. In the event of the Eligible
Employee's death, all amounts payable to the Eligible Employee under Sections
3.1, 3.2 and 3.3, if the Eligible Employee had lived, shall be paid to the
Eligible Employee's estate, heirs or representatives; provided, however, that
the foregoing shall not be construed to modify any terms of any benefit plan of
the Company, as such terms are in effect on the date of the employee's death,
that expressly govern benefits under such plan in the event of the Eligible
Employee's death.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1 Before Change in Control. This Plan may be amended from
time to time, or terminated, at the discretion of the Board of Directors prior
to a Change in Control of the Company, only by a written resolution adopted by
the Board of Directors. Furthermore, the Plan will automatically terminate if
the Company (a) is legally dissolved, (b) makes a general assignment for the
benefit of its creditors, or (c) files for liquidation under the Bankruptcy
Code. Notwithstanding the foregoing, the President of the Company shall have the
limited authority, with necessity of action by the Board of Directors, to revise
the Schedules attached hereto by deleting the name of an Eligible Employee to
reflect such individual's termination of employment and inserting the name of
the employee hired to replace such individual.
Section 6.2 On and After Change in Control. Notwithstanding the
foregoing, the Plan may not be amended or terminated or participation
discontinued by the Company or its Board of Directors after the Change in
Control Date until all payments due have been made hereunder.
ARTICLE VII
ERISA INFORMATION
Section 7.1 Plan Administrator. The Company shall serve as the Plan
Administrator for purposes of ERISA. Notwithstanding the foregoing, the Board of
Directors may appoint any individual to serve as Plan Administrator with such
rights and duties as are specified herein. The Plan Administrator shall have
full and complete authority over the operation and administration of the Plan,
including, but not limited to, the authority to make appropriate determinations
(including factual determinations) necessary for the administration of the Plan,
interpret and apply the provisions of the Plan, authorize and direct payments,
and establish such rules and regulations regarding the administration of the
Plan as it deems necessary. The Plan Administrator's decisions shall be final
and binding on all interested parties, unless arbitrary and capricious. The Plan
Administrator's address and telephone number is:
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Northland Cranberries, Inc.
800 First Avenue South
P.O. Box 8020
Wisconsin Rapids, WI 54495-80202
(715) 424-4444
Section 7.2 Service of Process. The Plan Administrator is designated
as agent of the Plan for service of legal process. Service of legal process may
be made upon the Plan Administrator at the address indicated in Section 7.1.
Section 7.3 Source of Payments. All payments made hereunder shall be
made from the general assets of the Company.
Section 7.4 Claims Procedures.
(a) Any Eligible Employee claiming that a benefit hereunder has been
wrongfully denied shall submit such claim in writing to the Plan Administrator
within sixty (60) days of the date that the Eligible Employee claims that the
Company's obligation to make payment arose.
(b) If the claim is denied by the Plan Administrator, the Plan
Administrator shall issue a written determination no later than sixty (60) days
after receipt of such claim, indicating the reason or reasons for the denial;
reference to pertinent provisions of the Plan on which such denial is based; a
description of any additional material or information necessary for the claimant
to perfect the claim together with an explanation of why the material or
information is needed; and an explanation of the Plan's review procedure as
described in subsection (c).
(c) An Eligible Employee may appeal a claim denied under subsection
(b) to the Plan Administrator within sixty (60) days of the date of the Plan
Administrator's written determination denying payment. Such appeal must be
addressed to the Plan Administrator and be in writing. If the appeal is denied,
the Plan Administrator shall issue a written decision on the appeal no later
than sixty (60) days after receipt of the appeal. The Plan Administrator's
decision shall include the reasons for the decision and references to the
pertinent provisions of the Plan on which the denial is based.
(d) An Eligible Employee may not file suit in any court to enforce his
or her rights hereunder until after such Eligible Employee has exhausted the
claims procedures described in this Section 7.4. In no event may an Eligible
Employee file suit in any court after one hundred and eighty (180) days
following the Plan Administrator's written notice of denial of such Eligible
Employee's appeal.
Section 7.5 ERISA Rights.
(a) Under ERISA, Eligible Employees are entitled to: (i) examine,
without charge, at the Plan Administrator's office and at other specified
locations such
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as worksites, all Plan documents filed by the Plan with the U.S. Department of
Labor, such as detailed annual reports, if any; (ii) obtain copies of all Plan
documents and other Plan information upon written request to the Plan
Administrator (for a reasonable charge for the copies); and (iii) receive a
summary of the Plan's annual financial report, if any. The Plan Administrator is
required by law to furnish each Eligible Employee with a copy of this summary
report.
(b) ERISA imposes duties upon the fiduciaries who are responsible for
the operation of the Plan. The Plan's fiduciaries have a duty to operate the
Plan prudently and in the interest of the Eligible Employees. No one, including
the Company or any other person, may terminate an Eligible Employee's employment
or otherwise discriminate against an Eligible Employee in any way to prevent an
Eligible Employee from obtaining a benefit or exercising any rights under ERISA.
(c) Under ERISA, there are steps an Eligible Employee can take to
enforce the above rights. For instance, if an Eligible Employee requests
materials from the Plan Administrator and does not receive them within thirty
(30) days, the Eligible Employee may file suit in a federal court. In such a
case, the court may require the Plan Administrator to provide the materials and
pay such Eligible Employee up to $110 a day until the Eligible Employee receives
the materials, unless the materials were not sent because of reasons beyond the
control of the Plan Administrator.
(d) If an Eligible Employee's claim for a benefit is denied in whole
or in part, the Eligible Employee must receive a written explanation of the
reason for the denial. The Eligible Employee also has the right to have the Plan
Administrator review and reconsider the claim. If an Eligible Employee has a
claim for benefits which is denied or ignored, in whole or in part, such
Eligible Employee may file suit in a state or federal court. If it should happen
that the Plan's fiduciaries misuse the Plan's money, or if an Eligible Employee
is discriminated against for asserting his or her rights under ERISA, such
Eligible Employee may seek assistance from the U.S. Department of Labor, or may
file suit in a federal court. The court will decide who may pay court costs and
legal fees. If the Eligible Employee is successful, the court may order the
person sued to pay these costs and fees. If the Eligible Employee loses, the
court may order such Eligible Employee to pay these costs and fees.
(e) If an Eligible Employee has any questions about the Plan, he or
she should contact the Plan Administrator. If an Eligible Employee has any
questions about this statement or about rights under ERISA, he or she should
contact the nearest area office of the Pension and Welfare Benefits
Administration, U.S. Department of Labor, listed in the telephone directory, or
the Division of Technical Assistance and Inquiries, Pension and Welfare Benefits
Administration, U.S. Department of Labor, 200 Constitution Avenue N.W.,
Washington, D.C. 20210.
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Section 7.6 ERISA Information. The Company's federal employer
identification number is 39-1583759 and the number assigned by the Company to
the Plan is 50_. The Plan's records are maintained on a calendar year basis.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Notices. Notices given pursuant to this Plan shall be in
writing and shall be deemed given when received by the Eligible Employee or when
received by the Secretary or any officer of the Company other than the Eligible
Employee. If mailed, such notice shall be mailed by United States registered or
certified mail, return receipt requested, if to the Company, at the Company's
address as specified in Section 7.1 and if to the Eligible Employee, at the last
known address for the Eligible Employee on file in the Company's records.
Section 8.2 Severability. The provisions of this Plan shall be
regarded as divisible, and if any of such provisions or any part are declared
invalid or unenforceable by a court of competent jurisdiction, the validity and
enforceability of the remainder of such provisions or parts and the
applicability thereof shall not be affected thereby.
Section 8.3 Withholding. The Company shall be entitled to withhold
from amounts to be paid to the Eligible Employee any federal, state or local
withholding or other taxes or charges which it is from time to time required to
withhold; provided, that the amount so withheld shall not exceed the minimum
amount required to be withheld by law. The Company shall be entitled to rely on
an opinion of nationally recognized tax counsel if any question as to the amount
or requirement of any such withholding shall arise.
Section 8.4 Governing Law; Resolution of Disputes. This Plan and the
rights and obligations shall be governed by and construed in accordance with the
laws of the State of Wisconsin to the extent not preempted by ERISA. The
exclusive venue for any action shall be Madison, Wisconsin. The parties consent
to personal jurisdiction in each trial court in the selected venue having
subject matter jurisdiction notwithstanding their residence or situs, and each
party irrevocably consents to service of process in the manner provided for the
giving of notices.
Section 8.5 No Waiver. No waiver by the Company or any Eligible
Employee at any time of any breach by the other party of, or compliance with,
any condition or provision of this Plan to be performed by the other party shall
be deemed a waiver of similar or dissimilar provisions or conditions at the same
time or any prior or subsequent time.
Section 8.6 Headings. The headings contained are for reference only
and shall not affect the meaning or interpretation of any provision of this
Plan.
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<TABLE>
SCHEDULE A
<CAPTION>
MAXIMUM STAY BONUS TYPE OF COVERED TERMINATION
------------------ ---------------------------
A B
- -
<S> <C> <C> <C> <C>
CATEGORY ONE SWENDROWSKI $252,000 $ 0 $ 0
HAWK 95,000 0 0
PAZUREK 82,500 0 0
CORRIVEAU 120,000 120,000 120,000
HADDOW 62,500 62,500 62,500
STAUNER 34,300 63,700 63,700
LUKAS 52,500 45,000 45,000
<CAPTION>
MAXIMUM STAY BONUS A B
------------------ - -
<S> <C> <C> <C> <C>
CATEGORY TWO KLUS $52,500 $60,000 $22,500
KRESS 56,000 64,000 24,000
LANG 32,500 52,000 13,000
<CAPTION>
MAXIMUM STAY BONUS A B
------------------ - -
<S> <C> <C> <C> <C>
CATEGORY THREE HADDOW JR $14,769 $31,680 $4,800
TABER 13,462 29,167 5,000
LEWIS 15,346 33,250 5,700
THOMPSON, ALAN 13,846 30,000 7,200
GREENING 18,462 40,000 4,000
HERMAN 21,000 45,500 4,200
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MAXIMUM STAY BONUS A B
------------------ - -
<S> <C> <C> <C> <C>
CATEGORY FOUR BENGERT $ 6,308 $13,667 $0
FOSSUM 10,000 16,667 0
CLARK 22,500 30,000 0
EDWARDS 15,200 25,333 0
HANSON 14,800 24,667 0
VIDAL 10,800 18,000 0
DENZINE 10,000 12,500 0
SWENDROWSKI, MIKE 13,000 13,000 0
WILLARD 18,375 18,375 0
CRAWFORD 15,600 19,500 0
DEPEW 18,750 12,500 0
COSTELLO 16,500 11,000 0
TIERNEY 20,975 13,983 0
SALTZMAN 8,600 7,167 0
IWINSKI 20,000 13,333 0
BREWER 19,750 13,167 0
JENSEN 15,000 12,500 0
HELM 14,800 12,333 0
KEHOE 17,500 11,667 0
KUENZI 16,000 13,333 0
SUMMERS 15,000 12,500 0
THOMPSON 18,000 15,000 0
COCKRAM 16,875 11,250 0
WALKER 26,250 17,500 0
HALLOWELL 27,500 18,333 0
KELLER 30,375 20,250 0
WILSON 33,250 22,167 0
AYERS 26,250 17,500 0
SPENSKE 32,000 21,333 0
CHANNEL 15,000 12,500 0
MCCARTHY 15,000 12,500 0
</TABLE>
<PAGE>
<TABLE>
SCHEDULE B
<CAPTION>
EMPLOYEE CHANGE OF CONTROL PAYMENT
-------- -------------------------
<S> <C>
CORRIVEAU $120,000
HADDOW $ 62,500
STAUNER $ 34,300
LUKAS $ 52,500
</TABLE>
