<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 27, 1999
REGISTRATION NUMBER 333-__________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
------------------------
RUSSELL CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Alabama 63-0180720
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
755 Lee Street, Alexander City, Alabama 35011-0272
(Address of Principal Executive Offices) (Zip Code)
RUSSELL CORPORATION FLEXIBLE DEFERRAL PLAN
(Full Title of the Plan)
------------------------
FLOYD G. HOFFMAN
Russell Corporation
Hewitt Building-Suite 1600
3350 Riverwood Parkway
Atlanta, Georgia 30339
(Name and Address of Agent For Service)
(256) 500-4000
(Telephone Number, Including Area Code, of Agent For Service)
With a copy to:
JOHN K. MOLEN
Bradley Arant Rose & White LLP
2001 Park Place, Suite 1400
Birmingham, Alabama 35203
(205) 521-8238
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH CLASS PROPOSED MAXIMUM PROPOSED MAXIMUM
OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE REGISTRATION FEE
- ------------------------------- ---------------- ---------------- -------------- ----------------
<S> <C> <C> <C> <C>
Deferred Compensation Interests $5,000,000 Not Applicable $5,000,000* $1,390
</TABLE>
* Estimated pursuant to Rule 457(o) solely for the purpose of calculating the
registration fee.
===============================================================================
<PAGE> 2
REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The documents incorporated by reference in Item 3 of Part II of this
Registration Statement (not including exhibits to the information that is
incorporated by reference unless such exhibits are specifically incorporated by
reference into the information that this Registration Statement incorporates)
are incorporated by reference in the Section 10(a) Prospectus and are
available, without charge, to the participants upon written or oral request to
Secretary, Russell Corporation, 755 Lee Street, Alexander City, Alabama
35011-0272 (telephone number 256-500-4000). The documents containing the
information requested by Part I of Form S-8, the Annual Report on Form 10-K of
Russell Corporation for its latest fiscal year, and all reports, proxy
statements and other communications distributed generally to the security
holders of Russell Corporation are available, without charge, to participants
upon written or oral request to Secretary, Russell Corporation, 755 Lee Street,
Alexander City, Alabama 35011-0272 (telephone number 256-500- 4000).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated herein by reference and made
a part hereof:
(1) The Annual Report on Form 10-K of the Registrant for the fiscal
year ended January 2, 1999 (Commission File No. 0-1790).
(2) The Quarterly Reports of the Registrant on Form 10-Q, as amended,
for the quarters ended April 4, 1999 and July 4, 1999 (Commission File No.
0-1790).
(3) The Current Report of the Registrant on Form 8-K as filed on
September 17, 1999 (Commission File No. 0-1790).
(4) The description of the Common Stock of the Registrant appearing
in the Registrant's Registration Statement on Form S-4 (Registration Statement
No. 33-24735), under the caption "DESCRIPTION OF CAPITAL STOCK - Common Stock,"
as filed on September 26, 1988 pursuant to the Securities Act of 1933, as
amended (the "Securities Act"), and appearing in the Registrant's Registration
Statement on Form 8-A (Registration Statement No. 1-5822) at Exhibit 1, as
filed on October 15, 1999 pursuant to the Exchange Act.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 subsequent to the
date of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
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The Russell Corporation Flexible Deferral Plan (the "Plan") provides
designated employees ("Participant(s)") of the Registrant and participating
subsidiaries with an opportunity to defer a portion of their compensation and
accumulate tax-deferred earnings thereon. A brief description of certain
aspects of the Plan follows (the official provisions of the Plan are contained
in the Plan itself, which controls in the event of a discrepancy):
(a) The Plan was approved by the Board of Directors of the Registrant
to be effective on and after January 1, 2000. Up to $5,000,000 in interests in
the Plan ("Interests") are being registered pursuant to this Registration
Statement, which Interests are to be offered to certain eligible employees of
the Registrant and participating subsidiaries of the Registrant (a
"Subsidiary") pursuant to the Plan.
(b) A committee appointed by the Board of Directors of the Registrant
(the "Committee") shall act on behalf of the Registrant with respect to
administration of the Plan. The Committee has the right to interpret the Plan
and determine all other matters that might arise under the terms and conditions
of the Plan. The decisions of the Committee or its delegate are final and
binding on all Participants.
(c) The Plan allows the Participant to defer a portion of such
Participant's pre-tax base salary, commissions and bonus. The amount of
compensation deferred by each Participant is determined in accordance with each
Participant's deferral election form under the Plan.
(d) Each Participant is an unsecured general creditor of the
Registrant and the subsidiary employing the Participant with respect to such
Participant's own Plan benefits. Benefits are payable solely from the
Registrant's or the Subsidiary's general assets, and are subject to the risk of
corporate insolvency. Each Participant's deferred compensation may be mingled
with the general funds of the Registrant or the employing Subsidiary and may,
therefore, be subject to a lien or security interest of other creditors of the
Registrant or such Subsidiary.
(e) A Participant may elect to begin to receive benefit payments (in
accordance with the Participant's election) in the year of retirement from the
Registrant or the year in which the Participant attains age 65. A Participant
who retires after attaining age 55 with 10 years of service with the Registrant
may also elect to begin receiving benefits under the Plan in the year of
retirement or the year the Participant attains age 65. A Participant who
terminates employment prior to age 55 and completion of 10 years of service
will receive a lump sum payment as soon as practicable following termination of
employment. A Participant's Beneficiary will also begin to receive benefit
payments (in accordance with the Participant's election) following a
Participant's death. The Committee administering the Plan may in its sole
discretion begin payments to a Participant who becomes disabled, payable on the
Participant's 65th birthday. Distributions may be made in a lump sum or in
monthly installments extending over 5, 10, 15 or 20 years. Payment options may
be changed by the Participant, with the approval of the Registrant, at any time
more than one year prior to the date on which a distributable event occurs.
(f) Participants, with the approval of the Committee, may withdraw
amounts deferred under the Plan prior to the occurrence of a distributable
event. Such withdrawals are subject to a 10% penalty on the amount withdrawn
and ineligibility to defer compensation under the Plan for one year.
Participants may also, with the approval of the Committee, withdraw amounts
deferred
3
<PAGE> 4
under the Plan without penalty in the event of certain hardships as defined in
the Plan up to the amount necessary to deal with the hardship.
(g) Amounts deferred under the Plan are indexed, at the election of
the Participant, to such investment indices as may be offered under the Plan by
the Registrant from time to time. Each Participant's deferral account with
respect to such amount will be adjusted to reflect the investment experience of
the underlying index, including any appreciation or depreciation.
(h) A Participant's Plan benefits cannot be alienated, sold,
transferred, assigned, pledged, or encumbered and pass only to a survivor
beneficiary designated under the Plan, or by written will under the laws of
descent and distribution.
(i) The Interests are not subject to redemption, in whole or in part,
prior to the occurrence of a distributable event with respect to the
Participant. The Registrant, however, reserves the right to amend or terminate
the Plan at any time, except that no such amendment or termination shall
adversely affect a Participant's right to Interests in the Participant's
account as of the date of such amendment or termination.
(j) The Registrant plans to establish a "rabbi" trust with a third
party as trustee and to fund the trust in a manner that generally tracks the
investment account allocations made by Participants in the Plan. There is,
however, no requirement that the trust be so funded or invested. While intended
for payment of Participant benefits under the Plan, the trust assets are
subject to the claims of creditors of the Registrant and, for accounting and
tax purposes, remain assets of the Registrant.
Item 5. Interests of Named Experts and Counsel.
Bradley Arant Rose & White LLP, counsel to the Company, has been
routinely engaged to perform legal services by the Company since the formation
of the Company. As of the date hereof, the partners and associates of the firm
of Bradley Arant Rose & White LLP beneficially own approximately 10,575 shares
of Common Stock of the Company.
Item 6. Indemnification of Directors and Officers.
As permitted by Sections 10-2B-8.50 through 10-2B-8.58 of the Alabama
Business Corporation Act, Article VII of the Bylaws of the Company provides for
indemnification of directors, officers and employees in certain instances. The
provisions of Article VII provide as follows:
Article VII. Indemnification of Directors, Officers and Employees.
Section 7.1 The corporation shall indemnify any person who was
or is party or is threatened to be made a party to any threatened,
pending, or completed claim, action, suit or proceeding, whether
civil, criminal, administrative or investigative, including appeals
(other than an action by or in the right of the corporation) by reason
of the fact that he is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
4
<PAGE> 5
against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such claim, action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to
any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any claim, action, suit
or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in
a manner which he reasonably believed to be in or not opposed to the
best interests of the corporation, and with respect to any criminal
action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
Section 7.2 The corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any threatened,
pending or completed claim, action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact
that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue, or
matter as to which such person shall have been adjudged to be liable
for negligence or misconduct in the performance of his duty to the
corporation unless and only to the extent that the court in which such
action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper.
Section 7.3 To the extent that a director, officer, employee
or agent of the corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
sections 7.1 and 7.2, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith, notwithstanding that he has not been successful on any
other claim, issue or matter in any such action, suit or proceeding.
Section 7.4 Any indemnification under sections 7.1 and 7.2
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper
in the circumstances because he has met the applicable standard of
conduct set forth in sections 7.1 and 7.2. Such determination shall be
made (a) by the board of directors by a majority vote of a quorum
consisting of directors who were not parties to, or who have been
wholly successful on the merits or otherwise with respect to, such
claim, action, suit or proceeding, or (b) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or (c)
by the shareholders.
5
<PAGE> 6
Section 7.5 Expenses (including attorneys' fees) incurred in
defending a civil or criminal action, suit, or proceeding may be paid
by the corporation in advance of the final disposition of such claim,
action, suit, or proceeding as authorized in the manner provided in
section 7.4 upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount if and to
the extent that it shall be ultimately determined that he is not
entitled to be indemnified by the corporation as authorized in this
Article VII.
Section 7.6 The indemnification provided by this Article VII
shall not be deemed exclusive of and shall be in addition to any other
rights to which those indemnified may be entitled under any statute,
rule of law, provisions of articles of incorporation, bylaw,
agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, and shall continue as
to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 7.7 The corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, partner, employee
or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify
him against such liability under the provisions of this Article VII.
The indemnification provisions of Article VII of the Company's Bylaws
are not exclusive and are in addition to any other rights to which the officers
and directors may be entitled under any other statute, rule of law, agreement
or otherwise. The Company also maintains directors' and officers' liability
insurance insuring its directors and officers from certain liabilities and
expenses.
Section 10 of the Company's Restated Articles of Incorporation
provides as follows:
A director of the corporation shall not be liable to the
corporation or its shareholders for money damages for any
action taken, or failure to take action, as a director, except
for (i) the amount of a financial benefit received by such
director to which such director is not entitled; (ii) an
intentional infliction of harm by such director on the
corporation or its shareholders; (iii) a violation of Section
10-2B-8.33 of the Code of Alabama of 1975 or any successor
provision to such section; (iv) an intentional violation by
such director of criminal law; or (v) a breach of such
director's duty of loyalty to the corporation or its
shareholders. If the Alabama Business Corporation Act, or any
successor statute thereto, is hereafter amended to authorize
the further elimination or limitation of the liability of a
director of a corporation, then the liability of a director of
the corporation, in addition to the limitations on liability
provided herein, shall be limited to the fullest extent
permitted by the Alabama Business Corporation Act, as amended,
or any successor statute thereto. The limitation on liability
of directors of the corporation contained herein shall apply
to liabilities arising
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<PAGE> 7
out of acts or omissions occurring subsequent to the adoption
of this Article 10 and, except to the extent prohibited by
law, to liabilities arising out of acts or omissions occurring
prior to the adoption of this Article 10. Any repeal or
modification of this Article 10 by the shareholders of the
corporation shall be prospective only and shall not adversely
affect any limitation on the liability of a director of the
corporation existing at the time of such repeal or
modification.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration
Statement:
*4(a) Restated Articles of Incorporation of the Registrant (included as
Exhibit (3)(a) to Annual Report on Form 10-K for the fiscal year ended
December 30, 1995).
*4(b) Bylaws of the Registrant (included as Exhibit (3)(c) to Annual Report
on Form 10-K for the fiscal year ended December 30, 1995).
*4(c) Rights Agreement dated September 15, 1999 between the Registrant and
SunTrust Bank, Atlanta, Georgia (included as Exhibit 1 to Form 8-A
filed on October 15, 1999 (Registration Statement No. 1-5822)).
*4(d) Certificate of Adoption of Resolutions by Board of Directors of the
Registrant dated October 25, 1989 (included as Exhibit (3)(b) to
Annual Report on Form 10-K for the fiscal year ended December 30,
1995).
*4(e) October 28, 1981 Amendment to Stock Option Plans (included as Exhibit
(10)(d) to Annual Report on Form 10-K for year ended December 30,
1995).
*4(f) 1987 Stock Option Plan (included as Exhibit 1 to Registration
Statement No. 33-24898).
*4(g) 1993 Executive Long-Term Incentive Plan (included as Exhibit (4)(c) to
Registration Statement No. 33-69679).
*4(h) 1996 Amendment to the 1993 Executive Long-Term Incentive Plan
(included as Exhibit (10)(g) to Annual Report on Form 10-K for the
fiscal year ended January 3, 1998).
*4(i) Russell Corporation 1997 Non-Employee Directors' Stock Grant, Stock
Option and Deferred Compensation Plan, as amended (included as Exhibit
(10)(f) to Annual Report on Form 10-K for the fiscal year ended
January 2, 1999).
*4(j) 1998 Amendment to the 1993 Executive Long-Term Incentive Plan
(included as Annex A to Schedule 14A filed on March 30, 1998).
4(k) Russell Corporation Flexible Deferral Plan
5(a) Opinion of Bradley Arant Rose & White LLP
23(a) Consent of Ernst & Young LLP.
23(b) Consent of Bradley Arant Rose & White LLP (contained in exhibit 5(a)).
24(a) Powers of Attorney of certain directors and officers.
* Incorporated by reference.
Item 9. Undertakings.
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(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement.
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1993;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not
exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee"
table in this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to Sections
13 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof;
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the Registration Statement shall
be deemed to be a new registration
8
<PAGE> 9
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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<PAGE> 10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Alexander City, State of Alabama, on October
26, 1999.
RUSSELL CORPORATION
By: * John F. Ward
-------------------------------------
John F. Ward
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* John F. Ward Chairman of the Board, October 26, 1999
- -------------------------------- President, and Chief Executive
John F. Ward Officer
* Eric N. Hoyle Executive Vice President, October 26, 1999
- -------------------------------- Chief Financial Officer, and
Eric N. Hoyle Director (Principal Financial
Officer)
* Larry E. Workman Controller (Principal October 26, 1999
- -------------------------------- Accounting Officer)
Larry E. Workman
* Herschel M. Bloom Director October 26, 1999
- --------------------------------
Herschel M. Bloom
* Ronald G. Bruno Director October 26, 1999
- --------------------------------
Ronald G. Bruno
* Timothy A. Lewis Director October 26, 1999
- --------------------------------
Timothy A. Lewis
* C.V. Nalley III Director October 26, 1999
- --------------------------------
C.V. Nalley III
</TABLE>
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<TABLE>
<S> <C> <C>
* Margaret M. Porter Director October 26, 1999
- --------------------------------
Margaret M. Porter
* Benjamin Russell Director October 26, 1999
- --------------------------------
Benjamin Russell
* John R. Thomas Director October 26, 1999
- --------------------------------
John R.Thomas
* John A. White Director October 26, 1999
- --------------------------------
John A. White
*By /s/ Floyd G. Hoffman October 26, 1999
- --------------------------------
Floyd G. Hoffman
Attorney in Fact
</TABLE>
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Index of Exhibits
<TABLE>
<S> <C>
*4(a) Restated Articles of Incorporation of the Registrant (included as
Exhibit (3)(a) to Annual Report on Form 10-K for the fiscal year ended
December 30, 1995).
*4(b) Bylaws of the Registrant (included as Exhibit (3)(c) to Annual Report
on Form 10-K for the fiscal year ended December 30, 1995).
*4(c) Rights Agreement dated September 15, 1999 between the Registrant and
SunTrust Bank, Atlanta, Georgia (included as Exhibit 1 to Form 8-A
filed on October 15, 1999 (Registration Statement No. 1-5822)).
*4(d) Certificate of Adoption of Resolutions by Board of Directors of
Registrant dated October 25, 1989 (included as Exhibit (3)(b) to
Annual Report on Form 10-K for the fiscal year ended December 30,
1995).
*4(e) October 28, 1981 Amendment to Stock Option Plans (included as Exhibit
(10)(d) to Annual Report on Form 10-K for year ended December 30,
1995).
*4(f) 1987 Stock Option Plan (included as Exhibit 1 to Registration
Statement No. 33-24898).
*4(g) 1993 Executive Long-Term Incentive Plan (included as Exhibit (4)(c) to
Registration Statement No. 33-69679).
*4(h) 1996 Amendment to the 1993 Executive Long-Term Incentive Plan
(included as Exhibit (10)(g) to Annual Report on Form 10-K for the
fiscal year ended January 3, 1998).
*4(i) Russell Corporation 1997 Non-Employee Directors' Stock Grant, Stock
Option and Deferred Compensation Plan, as amended (included as Exhibit
(10)(f) to Annual Report on Form 10-K for the fiscal year ended
January 2, 1999).
*4(j) 1998 Amendment to the 1993 Executive Long-Term Incentive Plan
(included as Annex A to Schedule 14A filed on March 30, 1998).
4(k) Russell Corporation Flexible Deferral Plan
5(a) Opinion of Bradley Arant Rose & White LLP
23(a) Consent of Ernst and Young LLP.
23(b) Consent of Bradley Arant Rose & White LLP (contained in exhibit 5(a)).
24(a) Powers of Attorney of certain directors and officers.
* Incorporated by reference.
</TABLE>
12
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Exhibit 4(k)
Russell Corporation
Flexible Deferral Plan
Plan Document
Effective January 1, 2000
TABLE OF CONTENTS
Page
----
ARTICLE 1
Definitions......................................................4
1.1 "Account Balance"..........................................4
1.2 "Annual Bonus".............................................5
1.3 "Annual Deferral Amount"...................................5
1.4 "Annual Employer Matching Amount"..........................5
1.5 "Base Annual Salary".......................................5
1.6 "Beneficiary"..............................................5
1.7 "Beneficiary Designation Form".............................5
1.8 "Board"....................................................5
1.9 "Change in Control"........................................6
1.10 "Claimant".................................................6
1.11 "Code".....................................................6
1.12 "Commissions"..............................................6
1.13 "Committee"................................................6
1.14 "Company"..................................................6
1.15 "Deduction Limitation".....................................6
1.16 "Deferral Account".........................................7
1.17 "Disability"...............................................7
1.18 "Disability Benefit".......................................7
1.19 "Election Form"............................................7
1.20 "Employee".................................................7
1.21 "Employer(s)"..............................................7
1.22 "Employer Matching Account"................................7
1.23 "ERISA"....................................................7
1.24 "Monthly Installment Method"...............................7
1.25 "Participant"..............................................8
1.26 "Plan".....................................................8
1.27 "Plan Agreement"...........................................8
1.28 "Plan Year"................................................9
1.29 "Pre-Retirement Survivor Benefit"..........................9
1.30 "Prime Rate"...............................................9
1.31 "Retirement", "Retire(s)" or "Retired".....................9
1
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1.32 "Retirement Benefit".......................................9
1.33 "Retirement Commencement"..................................9
1.34 "Termination Benefit"......................................9
1.35 "Termination of Employment"................................9
1.36 "Trust"....................................................9
1.37 "Unforeseeable Financial Emergency"........................9
1.38 "Vested Employer Matching Account".........................9
1.39 "Years of Service".........................................9
ARTICLE 2
Selection, Enrollment, Eligibility...............................9
2.1 Selection by Committee....................................10
2.2 Enrollment Requirements...................................10
2.3 Eligibility; Commencement of Participation................10
2.4 Termination of Participation and/or Deferrals.............10
ARTICLE 3
Deferral Commitments, Crediting, Taxes..........................10
3.1 Amount of Deferral........................................10
3.2 Election to Defer; Effect of Election Form................10
3.3 Withholding of Annual Deferral Amounts....................11
3.4 Investment of Trust Assets................................11
3.5 Vesting...................................................11
3.6 Crediting/Debiting of Account Balances....................11
3.7 FICA and Other Taxes......................................13
3.8 Distributions.............................................13
ARTICLE 4
Unforeseeable Financial Emergencies, Withdrawal Election........13
4.1 Unforeseeable Financial Emergencies.......................13
4.2 Withdrawal Election.......................................13
ARTICLE 5
Retirement Benefit..............................................13
5.1 Retirement Benefit........................................14
5.2 Payment of Retirement Benefit.............................14
5.3 Death Prior to Completion of Retirement Benefit...........14
ARTICLE 6
Pre-Retirement Survivor Benefit.................................14
6.1 Pre-Retirement Survivor Benefit...........................14
6.2 Payment of Pre-Retirement Survivor Benefit................14
ARTICLE 7
Termination Benefit.............................................15
7.1 Termination Benefit.......................................15
7.2 Payment of Termination Benefit............................15
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ARTICLE 8
Disability Waiver and Benefit...................................15
8.1 Disability Waiver.........................................15
8.2 Continued Eligibility, Disability Benefit.................15
ARTICLE 9
Beneficiary Designation.........................................16
9.1 Beneficiary...............................................16
9.2 Beneficiary Designation, Change...........................16
9.3 Acknowledgment............................................16
9.4 No Beneficiary Designation................................16
9.5 Doubt as to Beneficiary...................................16
9.6 Discharge of Obligations..................................16
ARTICLE 10
Leave of Absence................................................17
10.1 Paid Leave of Absence.....................................17
10.2 Unpaid Leave of Absence...................................17
ARTICLE 11
Termination, Amendment or Modification..........................17
11.1 Termination...............................................17
11.2 Amendment.................................................17
11.3 Plan Agreement............................................18
11.4 Effect of Payment.........................................18
ARTICLE 12
Administration..................................................18
12.1 Committee Duties..........................................18
12.2 Agents....................................................18
12.3 Binding Effect of Decisions...............................18
12.4 Indemnity of Committee....................................18
12.5 Employer Information......................................19
ARTICLE 13 Other Benefits and Agreements...................................19
13.1 Coordination with Other Benefits..........................19
ARTICLE 14
Claims Procedures...............................................19
14.1 Presentation of Claim.....................................19
14.2 Notification of Decision..................................19
14.3 Review of a Denied Claim..................................20
14.4 Decision on Review........................................20
14.5 Legal Action..............................................20
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ARTICLE 15
Trust...........................................................20
15.1 Establishment of the Trust................................20
15.2 Interrelationship of the Plan and the Trust...............20
15.3 Distributions From the Trust..............................20
ARTICLE 16
Miscellaneous...................................................21
16.1 Status of Plan............................................21
16.2 Unsecured General Creditor................................21
16.3 Employer's Liability......................................21
16.4 Nonassignability..........................................21
16.5 Not a Contract of Employment..............................21
16.6 Furnishing Information....................................21
16.7 Terms.....................................................21
16.8 Captions..................................................22
16.9 Governing Law.............................................22
16.10 Notice....................................................22
16.11 Successors................................................22
16.12 Validity..................................................22
16.13 Incompetent...............................................22
16.14 Court Order...............................................22
16.15 Distribution in the Event of Taxation.....................23
16.16 Insurance.................................................23
16.17 Legal Fees To Enforce Rights After Change in Control......23
RUSSELL CORPORATION FLEXIBLE DEFERRAL PLAN
Effective January 1, 2000
Purpose
The purpose of this Plan is to provide specified benefits to a select
group of management or highly compensated employees who contribute materially
to the continued growth, development and future business success of Russell
Corporation, an Alabama corporation, and its affiliates and subsidiaries, if
any, that sponsor this Plan. This Plan shall be unfunded for tax purposes and
for purposes of Title I of ERISA.
ARTICLE 1
Definitions
For purposes of this Plan, unless otherwise clearly apparent from the context,
the following phrases or terms shall have the following indicated meanings:
1.1 "Account Balance" shall mean, with respect to a Participant, a credit on
the records of the Employer equal to the sum of the Participant's Deferral
Account balance plus the Participant's Vested Employer Matching Account
balance. The Account Balance, and each other specified account
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balance, shall be a bookkeeping entry only and shall be utilized solely as a
device for the measurement and determination of the amounts to be paid to a
Participant, or his or her designated Beneficiary, pursuant to this Plan.
1.2 "Annual Bonus" shall mean any compensation, in addition to Base Annual
Salary, relating to services performed during any calendar year, whether or not
paid in such calendar year or included on the Federal Income Tax Form W-2 for
such calendar year, payable to a Participant as an Employee under any
Employer's annual bonus and incentive plans.
1.3 "Annual Deferral Amount" shall mean that portion of a Participant's Base
Annual Salary, Commissions and Annual Bonus that a Participant elects to have,
and is deferred, in accordance with Article 3, for any one Plan Year. In the
event of a Participant's Retirement, Disability (if deferrals cease in
accordance with Section 8.1), death or a Termination of Employment prior to the
end of a Plan Year, such year's Annual Deferral Amount shall be the actual
amount withheld prior to such event.
1.4 "Annual Employer Matching Amount" shall mean the amount, if any, which (i)
shall be deemed awarded to the Participant's Deferral Account and (ii) shall be
determined by the Committee as a limited percentage of a Participant's
compensation for a Plan Year which is deferred by the Participant in accordance
with this Plan. The Committee shall announce in advance of each Plan Year the
basis on which the Annual Employer Matching Amount shall be determined. The
Committee shall also determine the date on which such amount shall be credited
to a Participant's Deferral Account.
1.5 "Base Annual Salary" shall mean the annual cash compensation relating to
services performed during any calendar year, whether or not paid in such
calendar year or included in the Federal Income Tax Form W-2 for such calendar
year, excluding bonuses, severance pay, commissions, overtime, fringe benefits,
stock options, relocation expenses, incentive payments, non-monetary awards,
director's fees and other fees, and automobile and other allowances paid to a
Participant for employment services rendered (whether or not such allowances
are included in the Employee's gross income). Base Annual Salary shall be
calculated before reduction for compensation voluntarily deferred or
contributed by the Participant pursuant to all qualified or non-qualified plans
of any Employer and shall be calculated to include amounts not otherwise
included in the Participant's gross income under Code Sections 125, 402(e)(3),
402(h), or 403(b) pursuant to plans established by any Employer; provided,
however, that all such amounts will be included in compensation only to the
extent that, had there been no such plan, the amount would have been payable in
cash to the Employee.
1.6 "Beneficiary" shall mean one or more persons, trusts, estates or other
entities, designated in accordance with Article 9, that are entitled to receive
benefits under this Plan upon the death of a Participant.
1.7 "Beneficiary Designation Form" shall mean the form established from time to
time by the Committee that a Participant completes, signs and returns to the
Committee to designate one or more Beneficiaries.
1.8 "Board" shall mean the board of directors of the Company.
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1.9 "Change in Control" shall mean the first to occur of any of the following
events:
Any Person or two or more Persons acting in concert (other than the Russell
Family) shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 30% or more of the outstanding shares of the voting stock of
the Company; or (ii) as of any date a majority of the Board of Directors of the
Company consists of individuals who were not either (A) directors of the
Company as of the corresponding date of the previous year, (B) selected or
nominated to become directors by the Board of Directors of the Company of which
a majority consisted of individuals described in clause (A), or (C) selected or
nominated to become directors by the Board of Directors of the Company of which
a majority consisted of individuals described in clause (A) and individuals
described in clause (B).
For this purpose "Person" means any individual, corporation, general or limited
partnership, limited liability company, joint venture, estate, trust,
association organization, labor union or other entity.
For this purpose "Russell Family" means, collectively, (a) the lineal
descendants (including persons who have been legally adopted by a lineal
descendant) and the spouses of lineal descendants of Benjamin Russell (founder
of the Company); (b) the Benjamin and Roberta Russell Foundation, Incorporated;
(c) and any trust directly or indirectly controlled by, or for the benefit of,
one or more of such persons described in clause (a) above or directly or
indirectly controlled by any corporation or partnership described in clause (d)
below; and (d) any corporation or partnership in which voting control as to
such entity is held, directly or indirectly, by any one or more of the persons
described in clause (a) above or by such trusts described in clause (c) above;
and any person acting as the executor or administrator of the estate or other
legal representative of any person described in clause (a) above.
1.10 "Claimant" shall have the meaning set forth in Section 14.1.
1.11 "Code" shall mean the Internal Revenue Code of 1986, as it may be amended
from time to time.
1.12 "Commissions" shall mean any compensation, in addition to Base Annual
Salary, relating to services performed during any calendar year, whether or not
paid in such calendar year or included on the Federal Income Tax Form W-2 for
such calendar year, payable to a Participant as an Employee and as commission
payments related to such Employee's sales accomplishments.
1.13 "Committee" shall mean the committee described in Article 12.
1.14 "Company" shall mean Russell Corporation, an Alabama corporation, and any
successor to all or substantially all of the Company's assets or business.
1.15 "Deduction Limitation" shall mean the following described limitation on a
benefit that may otherwise be distributable pursuant to the provisions of this
Plan. Except as otherwise provided, this limitation shall be applied to all
distributions that are "subject to the Deduction Limitation" under this Plan.
If an Employer determines in good faith prior to a Change in Control that there
is a reasonable likelihood that any compensation paid to a Participant for a
taxable year of the Employer would not be deductible by the Employer solely by
reason of the limitation under Code Section
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162(m), then to the extent deemed necessary by the Employer to ensure that the
entire amount of any distribution to the Participant pursuant to this Plan
prior to the Change in Control is deductible, the Employer may defer all or any
portion of a distribution under this Plan. Any amounts deferred pursuant to
this limitation shall continue to be credited/debited with additional amounts
in accordance with Section 3.6 below, even if such amount is being paid out in
installments. The amounts so deferred and amounts credited thereon shall be
distributed to the Participant or his or her Beneficiary (in the event of the
Participant's death) at the earliest possible date, as determined by the
Employer in good faith, on which the deductibility of compensation paid or
payable to the Participant for the taxable year of the Employer during which
the distribution is made will not be limited by Section 162(m), or if earlier,
the effective date of a Change in Control. Notwithstanding anything to the
contrary in this Plan, the Deduction Limitation shall not apply to any
distributions made after a Change in Control.
1.16 "Deferral Account" shall mean the sum of all of a Participant's Annual
Deferral Amounts plus or minus amounts credited in accordance with all the
applicable crediting provisions of this Plan that relate to the Participant's
Deferral Account minus all distributions made to the Participant or his or her
Beneficiary pursuant to this Plan that are related to his or her Deferral
Account.
1.17 "Disability" shall mean a period of disability during which a Participant
qualifies for permanent disability benefits under the Participant's Employer's
long-term disability plan, or, if a Participant does not participate in such a
plan, a period of disability during which the Participant would have qualified
for permanent disability benefits under such a plan had the Participant been a
participant in such a plan, as determined in the sole discretion of the
Committee. If the Participant's Employer does not sponsor such a plan, or
discontinues to sponsor such a plan, Disability shall be determined by the
Committee in its sole discretion.
1.18 "Disability Benefit" shall mean the benefit set forth in Article 8.
1.19 "Election Form" shall mean the form established from time to time by the
Committee that a Participant completes, signs and returns to the Committee to
make an election under the Plan.
1.20 "Employee" shall mean a person who is an employee of any Employer.
1.21 "Employer(s)" shall mean the Company, or any affiliate and/or any
subsidiaries (now in existence or hereafter formed or acquired) of the Company,
that have been selected by the Board to participate in the Plan and have
adopted the Plan as a sponsor.
1.22 "Employer Matching Account" shall mean the sum of all of a Participant's
Annual Employer Matching Amounts plus or minus amounts credited in accordance
with all the applicable crediting provisions of this Plan that relate to the
Participant's Deferral Account.
1.23 "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time.
1.24 "Monthly Installment Method" shall mean monthly installment payments
calculated in the following manner.
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(a) Base Amount. The Participant's vested Account Balance, as of the
date of the Participant's Retirement, death, Disability or Termination of
Employment, shall be multiplied by a fraction, the numerator of which is 12 and
the denominator of which is the number of months over which the elected monthly
installment payments shall be paid. The result of this multiplication shall be
the amount that is treated as having been withdrawn from the Participant's
Account Balance as of the date of his or her Retirement, death, Disability or
Termination of Employment.
(b) Amortization. The amount determined in Section 1.24(a) above shall
be amortized monthly over a one year period, using a beginning of the month
payment convention, equal payments and an interest rate that is equal to the
Prime Rate on the last business day of the calendar year preceding the month in
which the Participant retired, died, became disabled or terminated employment.
The resulting monthly payment shall be paid starting on the first day of the
month that follows, by at least 30 days, the Participant's Retirement, death,
Disability or Termination of Employment and shall continue to be paid on the
first day of each month thereafter for eleven months. In the event of the
Participant's death, payments shall not commence until after proof of the
Participant's death is received by the Committee.
(c) Subsequent 12 Month Periods. For each subsequent 12 month period,
the Participant's remaining vested Account Balance shall be determined in the
manner set forth in Section 1.24(a) above, except that the determination date
shall be the first business day of the month in which the anniversary of the
Participant's Retirement, Death, Disability or Termination of Employment occurs
and the denominator shall be the remaining months over which the payments are
to be made. Once that amount is determined, it shall be amortized monthly in
the manner set forth in Section 1.24(b) above and paid starting with the first
day of the month of the new annual period, except that the interest rate shall
be the Prime Rate on the last business day of the calendar year preceding each
subsequent 12 month period.
1.25 "Participant" shall mean any Employee (i) who is selected to participate
in the Plan, (ii) who elects to participate in the Plan, (iii) who signs a Plan
Agreement, an Election Form and a Beneficiary Designation Form, (iv) whose
signed Plan Agreement, Election Form and Beneficiary Designation Form are
accepted by the Committee, (v) who commences participation in the Plan, and
(vi) whose Plan Agreement has not terminated. A spouse or former spouse of a
Participant shall not be treated as a Participant in the Plan or have an
account balance under the Plan, even if he or she has an interest in the
Participant's benefits under the Plan as a result of applicable law or property
settlements resulting from legal separation or divorce.
1.26 "Plan" shall mean the Russell Corporation Flexible Deferral Plan, which
shall be evidenced by this instrument and by each Plan Agreement, as they may
be amended from time to time.
1.27 "Plan Agreement" shall mean a written agreement, as may be amended from
time to time, which is entered into by and between an Employer and a
Participant. Each Plan Agreement executed by a Participant and the
Participant's Employer shall provide for the entire benefit to which such
Participant is entitled under the Plan; should there be more than one Plan
Agreement, the Plan Agreement bearing the latest date of acceptance by the
Employer shall supersede all previous Plan Agreements in their entirety and
shall govern such entitlement. The terms of any Plan Agreement may be different
for any Participant, and any Plan Agreement may provide additional benefits not
set forth in the Plan or limit the benefits otherwise provided under the Plan;
provided, however, that
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any such additional benefits or benefit limitations must be agreed to by both
the Employer and the Participant.
1.28 "Plan Year" shall mean a period beginning on January 1 of each calendar
year and continuing through December 31 of such calendar year.
1.29 "Pre-Retirement Survivor Benefit" shall mean the benefit set forth in
Article 6.
1.30 "Prime Rate" shall mean the prime rate as quoted in the Wall Street
Journal's Money Rates Section.
1.31 "Retirement", "Retire(s)" or "Retired" shall mean, with respect to an
Employee, severance from employment from all Employers for any reason other
than a leave of absence, death or Disability on or after the earlier of (i) the
attainment of age fifty-five (55) (with ten (10) Years of Service) or (ii) the
attainment of age sixty-five (65).
1.32 "Retirement Benefit" shall mean the benefit set forth in Article 5.
1.33 "Retirement Commencement" shall mean the date determined in Article 5.
1.34 "Termination Benefit" shall mean the benefit set forth in Article 7.
1.35 "Termination of Employment" shall mean the severing of employment with all
Employers, voluntarily or involuntarily, for any reason other than Retirement,
Disability, death or an authorized leave of absence.
1.36 "Trust" shall mean one or more trusts to be established between the
Company and the trustee named therein, as amended from time to time, and
created for the purpose of satisfying all or portion of benefits due
Participants under this Plan.
1.37 "Unforeseeable Financial Emergency" shall mean an unanticipated emergency
that is caused by an event beyond the control of the Participant that would
result in severe financial hardship to the Participant resulting from (i) a
sudden and unexpected illness or accident of the Participant or a dependent of
the Participant, (ii) a loss of the Participant's property due to casualty, or
(iii) such other extraordinary and unforeseeable circumstances arising as a
result of events beyond the control of the Participant, all as determined in
the sole discretion of the Committee.
1.38 "Vested Employer Matching Account" shall mean the vested portion of the
Participant's Employer Matching Account based on the vesting provisions
contained in Section 3.5 minus all distributions made to the Participant or his
or her Beneficiary pursuant to this Plan that are related to his or her Vested
Employer Matching Account.
1.39 "Years of Service" shall have the same meaning as "Year of Service" is
defined in the Russell Corporation 401(k) Retirement Savings Plan.
ARTICLE 2
Selection, Enrollment, Eligibility
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2.1 Selection by Committee. Participation in the Plan shall be limited to a
select group of highly compensated and management Employees of the Employers,
as determined by the Committee in its sole discretion. From that group, the
Committee shall select, in its sole discretion, Employees to participate in the
Plan
2.2 Enrollment Requirements. As a condition to participation, each selected
Employee shall complete, execute and return to the Committee a Plan Agreement,
an Election Form and a Beneficiary Designation Form, all within 30 days after
he or she is selected to participate in the Plan. In addition, the Committee
shall establish from time to time such other enrollment requirements as it
determines in its sole discretion are necessary.
2.3 Eligibility; Commencement of Participation. Provided an Employee selected
to participate in the Plan has met all enrollment requirements set forth in
this Plan and required by the Committee, including returning all required
documents to the Committee within the specified time period, that Employee
shall commence participation in the Plan on the first day of the month
following the month in which the Employee completes all enrollment
requirements. If an Employee fails to meet all such requirements within the
period required, in accordance with Section 2.2, that Employee shall not be
eligible to participate in the Plan until the first day of the Plan Year
following the delivery to and acceptance by the Committee of the required
documents.
2.4 Termination of Participation and/or Deferrals. If the Committee determines
in good faith that a Participant no longer qualifies as a member of a select
group of management or highly compensated employees, as membership in such
group is determined in accordance with Sections 201(2), 301(a)(3) and 401(a)(1)
of ERISA, the Committee shall have the right, in its sole discretion, to (i)
terminate any deferral election the Participant has made for the remainder of
the Plan Year in which the Participant's membership status changes, (ii)
prevent the Participant from making future deferral elections and/or (iii)
immediately distribute the Participant's then Account Balance as a Termination
Benefit and terminate the Participant's participation in the Plan.
ARTICLE 3
Deferral Commitments, Crediting, Taxes
3.1 Amount of Deferral. Except as otherwise provided in this Section 3.1, for
each Plan Year, a Participant may elect to defer Base Annual Salary,
Commissions, and Annual Bonus in any amount up to the maximum percentages of
salary, bonus or commissions for each deferral elected as shall be determined
for each Participant in the sole discretion of the Committee.
3.2 Election to Defer; Effect of Election Form. Except as provided below, for
each Plan Year, an irrevocable deferral election for that Plan Year, and such
other elections as the Committee deems necessary or desirable under the Plan,
shall be made by timely delivering a new Election Form to the Committee, in
accordance with its rules and procedures, before the end of the Plan Year
preceding the Plan Year for which the election is made. If no such Election
Form is timely delivered for a Plan Year, the Annual Deferral Amount shall be
zero for that Plan Year. Provided, however, a previously made election to defer
Base Annual Salary and Commissions shall continue from Plan Year to Plan Year
unless such election is changed by a new Election Form in the manner set forth
above. Provided, further, with respect to the Plan Year in which a newly
eligible Employee first becomes eligible to participate in this Plan, such
newly eligible Employee shall be permitted to defer Base Annual Salary
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and Commissions earned in such Plan Year after he or she delivers an Election
Form to the Committee provided such election to defer is made within 30 days of
his or her eligibility.
3.3 Withholding of Annual Deferral Amounts. For each Plan Year, the Base Annual
Salary and Commissions portions of the Annual Deferral Amount shall be withheld
from each regularly scheduled Base Annual Salary and/or Commissions payroll in
equal amounts, as adjusted from time to time for increases and decreases in
Base Annual Salary. The Annual Bonus portion of the Annual Deferral Amount
shall be withheld at the time the Annual Bonus is or otherwise would be paid to
the Participant.
3.4 Investment of Trust Assets. The Trustee of the Trust shall be authorized,
upon written instructions received from the Committee or investment manager
appointed by the Committee, to invest and reinvest the assets of the Trust in
accordance with the applicable Trust Agreement, in one or more investment
vehicles designated by the Committee.
3.5 Vesting. Participant shall at all times be 100% vested in his or her
Deferral Account. A Participant shall be vested in his or her Employer Matching
Account as follows:
Participant's Years of Service Vesting Percentage
------------------------------ ------------------
Less than five (5) none
Five (5) or more 100%
Provided, however, a Participant shall be 100% vested in his Employer Matching
Account upon either his or her attainment of age sixty-five (65) or death.
3.6 Crediting/Debiting of Account Balances. In accordance with, and subject to,
the rules and procedures that are established from time to time by the
Committee, in its sole discretion, amounts shall be credited or debited to a
Participant's Deferral Account and Employer Matching Account in accordance with
the following rules:
(a) Election of Measurement Funds. A Participant, in connection with
his or her initial deferral election in accordance with Section 3.2 above,
shall elect, on the Election Form, one or more Measurement Fund(s) (as
described in Section 3.6 (c) below) to be used to determine the additional
amounts to be credited to his or her Deferral Account and Employer Matching
Account for the first calendar month or portion thereof in which the
Participant commences participation in the Plan and continuing thereafter for
each subsequent calendar month in which the Participant participates in the
Plan, unless changed in accordance with the next sentence. Commencing with the
first calendar month that follows the Participant's commencement of
participation in the Plan and continuing thereafter for each subsequent
calendar month in which the Participant participates in the Plan, no later than
the next to last business day of the calendar month, the Participant may (but
is not required to) elect, by submitting an Election Form to the Committee that
is accepted by the Committee, to add or delete one or more Measurement Fund(s)
to be used to determine the additional amounts to be credited to his or her
Deferral Account and Employer Matching Account, or to change the portion of his
or her Deferral Account and Employer Matching Account allocated to each
previously or newly elected Measurement Fund. If an election is made in
accordance with the previous sentence, it shall apply to the next calendar
month and continue thereafter for each subsequent calendar month in which the
Participant participates in the Plan, unless changed in accordance with the
previous sentence.
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(b) Proportionate Allocation. In making any election described in
Section 3.6(a) above, the Participant shall specify on the Election Form, in
increments of five percentage points (5%), the percentage of his or her
Deferral Account and Employer Matching Account to be allocated to a Measurement
Fund (as if the Participant was making an investment in that Measurement Fund
with that portion of his or her Account Balance).
(c) Measurement Funds. The Participant may elect to have his or her
Deferral Account and Employer Matching Account deemed invested in one or more
funds (the "Measurement Funds") which are determined by the Committee in its
sole discretion. As necessary, the Committee may, in its sole discretion,
discontinue, substitute or add a Measurement Fund. Each such action will take
effect as of the first day of the calendar month that follows by thirty (30)
days the day on which the Committee gives Participants advance written notice
of such change.
(d) Crediting or Debiting Method. The performance of each elected
Measurement Fund (either positive or negative) will be determined by the
Committee, in its reasonable discretion, based on the performance of the
Measurement Funds themselves. A Participant's Deferral Account and Employer
Matching Account shall be credited or debited on a daily basis based on the
performance of each Measurement Fund selected by the Participant, as determined
by the Committee in its sole discretion, as though (i) a Participant's Deferral
Account and Employer Matching Account were invested in the Measurement Fund(s)
selected by the Participant, in the percentages applicable to such calendar
month, as of the close of business on the first business day of such calendar
month, at the closing price on such date; (ii) the portion of the Annual
Deferral Amount that was actually deferred during any calendar month were
invested in the Measurement Fund(s) selected by the Participant, in the
percentages applicable to such calendar month, no later than the close of
business on the last business day of such calendar month, at the closing price
on such date; (iii) any Annual Employer Matching Amount awarded for a calendar
year were invested in the Measurement Fund(s) selected by the Participant, in
the percentages applicable to the calendar month awarded, no later than the
close of business on the last business day of such calendar year, at the
closing price on such date and (iv) any distribution made to a Participant that
decreases such Participant's Account Balance ceased being invested in the
Measurement Fund(s), in the percentages applicable to such calendar month, no
earlier than three business days prior to the distribution, at the closing
price on such date.
(e) No Actual Investment. Notwithstanding any other provision of this
Plan that may be interpreted to the contrary, the Measurement Funds are to be
used for measurement purposes only, and a Participant's election of any such
Measurement Fund, the allocation to his or her Deferral Account and Employer
Matching Account thereto, the calculation of additional amounts and the
crediting or debiting of such amounts to a Participant's Deferral Account and
Employer Matching Account shall not be considered or construed in any manner as
an actual investment of his or her Deferral Account and Employer Matching
Account in any such Measurement Fund. In the event that the Company or the
Trustee (as that term is defined in the Trust), in its own discretion, decides
to invest funds in any or all of the Measurement Funds, no Participant shall
have any rights in or to such investments themselves. Without limiting the
foregoing, a Participant's Account Balance shall at all times be a bookkeeping
entry only and shall not represent any investment made on his or her behalf by
the Company or the Trust; the Participant shall at all times remain an
unsecured creditor of the Company.
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3.7 FICA and Other Taxes. For each Plan Year in which an Annual Deferral Amount
is being withheld from a Participant or an Annual Employer Matching Amount is
awarded to the Participant's Deferral Account, the Participant's Employer(s)
shall withhold from that portion of the Participant's Base Annual Salary,
Commissions and/or Bonus that is not being deferred, in a manner determined by
the Employer(s), the Participant's share of FICA and other employment taxes on
such Annual Deferral Amount and/or such Annual Employer Matching Amount. If
necessary, the Committee may reduce the Annual Deferral Amount in order to
comply with this Section 3.7.
3.8 Distributions. The Participant's Employer(s), or the trustee of the Trust,
shall withhold from any payments made to a Participant under this Plan all
federal, state and local income, employment and other taxes required to be
withheld by the Employer(s), or the trustee of the Trust, in connection win
such payments, in amounts and in a manner to be determined in the sole
discretion of the Employer(s) and the trustee of the Trust.
ARTICLE 4
Unforeseeable Financial Emergencies, Withdrawal Election
4.1 Unforeseeable Financial Emergencies. If the Participant experiences an
Unforeseeable Financial Emergency, the Participant may petition the Committee
to (i) suspend any deferrals required to be made by a Participant and/or (ii)
receive a partial or full payout from the Plan. The payout shall not exceed the
lesser of the Participant's Account Balance, calculated as if such Participant
were receiving a Termination Benefit, or the amount reasonably needed to
satisfy the Unforeseeable Financial Emergency. If, subject to the sole
discretion of the Committee, the petition for a suspension and/or payout is
approved, suspension shall take effect upon the date of approval and any payout
shall be made within 60 days of the date of approval. The payment of any amount
under this Section 4.3 shall not be subject to the Deduction Limitation.
4.2 Withdrawal Election. A Participant (or, after a Participant's death, his or
her Beneficiary) may elect, at any time, to withdraw all of his or her Account
Balance, calculated as if there had occurred a Termination of Employment as of
the day of the election, less a withdrawal penalty equal to 10% of such amount
(the net amount shall be referred to as the "Withdrawal Amount"). This election
can be made at any time, before or after Retirement, Disability, death or
Termination of Employment, and whether or not the Participant (or Beneficiary)
is in the process of being paid pursuant to an installment payment schedule. If
made before Retirement, Disability or death, a Participant's Withdrawal Amount
shall be his or her Account Balance calculated as if there had occurred a
Termination of Employment as of the day of the election. No partial withdrawals
of the Withdrawal Amount shall be allowed. The Participant (or his or her
Beneficiary) shall make this election by giving the Committee advance written
notice of the election in a form determined from time to time by the Committee.
The Participant (or his or her Beneficiary) shall be paid the Withdrawal Amount
within 60 days of his or her election. Once the Withdrawal Amount is paid, the
Participant's participation in the Plan shall terminate and the Participant
shall not be eligible to participate in the Plan for the Plan Year in which
such Withdrawal Amount is received and for the next following Plan Year. The
payment of this Withdrawal Amount shall not be subject to the Deduction
Limitation.
ARTICLE 5
Retirement Benefit
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5.1 Retirement Benefit. Subject to the Deduction Limitation, a Participant who
Retires shall receive, as a Retirement Benefit, his or her Account Balance.
5.2 Payment of Retirement Benefit. A Participant, in connection with his or her
commencement of participation in the Plan, shall elect on an Election Form to
receive the Retirement Benefit in a lump sum or pursuant to the Monthly
Installment Method over a period of 60, 120, 180 or 240 months. The Participant
may annually change his or her election to an allowable alternative payout
period by submitting a new Election Form to the Committee, provided that any
such Election Form is submitted at least 1 year prior to the Participant's
Retirement and is accepted by the Committee in its sole discretion. The
Election Form most recently accepted by the Committee at least 1 year prior to
the Participant's retirement shall govern the payout of the Retirement Benefit.
If a Participant does not make any election with respect to the payment of the
Retirement Benefit, then such benefit shall be payable in a lump sum. The lump
sum payment shall be made within 60 days of when the Participant Retires, or
the Monthly Installment Payments shall be made in accordance with Section 1.24
above. Any payment made shall be subject to the Deduction Limitation.
For purposes of Section 1.24, Retirement Commencement shall mean the later to
occur of (i) the date the Participant retires or (ii) with respect to a
Participant who retires prior to attaining age sixty-five (65) but after
attaining age fifty-five (55) with ten (10) Years of Service, the "Commencement
Date" selected by such Participant. For this purpose, "Commencement Date" shall
mean either the date of the Participant's Retirement or the date on which such
Participant attains age sixty-five (65). A Participant may make an election in
contemplation of the applicability of such Commencement Date applying by
electing either Commencement Date. Such election shall be made in the same
manner, and subject to the same restrictions, as the election with respect to
alternative payout periods set forth in this Section 5.2.
5.3 Death Prior to Completion of Retirement Benefit. If a Participant dies
after Retirement but before the Retirement Benefit is paid in full, the
Participant's unpaid Retirement Benefit payments shall continue and shall be
paid to the Participant's Beneficiary (a) over the remaining number of months,
in the same amounts and commencing at the same time as that benefit would have
been paid to the Participant had the Participant survived, or (b) in a lump
sum, if requested by the Beneficiary and allowed in the sole discretion of the
Committee, that is equal to the Participant's unpaid remaining Account Balance.
ARTICLE 6
Pre-Retirement Survivor Benefit
6.1 Pre-Retirement Survivor Benefit. Subject to the Deduction Limitation, the
Participant's Beneficiary shall receive a Pre-Retirement Survivor Benefit equal
to the Participant's Account Balance if the Participant dies before he or she
Retires, experiences a Termination of Employment or suffers a Disability.
6.2 Payment of Pre-Retirement Survivor Benefit. A Participant, in connection
with his or her commencement of participation in the Plan, shall elect on an
Election Form whether the Pre-Retirement Survivor Benefit shall be received by
his or her Beneficiary in a lump sum or pursuant to the Monthly Installment
Method over a period of 60, 120, 180, or 240 months. If a Participant does not
make any election with respect to the payment of the Pre-Retirement Survivor
Benefit, then
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such benefit shall be paid in a lump sum. A lump sum payment shall be made
within 60 days after the date on which the Committee is provided with proof
that is satisfactory to the Committee of the Participant's death. Monthly
Installment Payments shall be made in accordance with Section 1.24, subject to
the receipt of proof of death described in the preceding sentence. Any payment
made shall be subject to the Deduction Limitation. The Participant may annually
change this election to an allowable alternative payout period by submitting a
new Election Form to the Committee, which form must be accepted by the
Committee in its sole discretion. The Election Form most recently accepted by
the Committee prior to the Participant's death shall govern the payout of the
Participant's Pre-Retirement Survivor Benefit. Despite the foregoing, if the
Participant's Account Balance at the time of his or her death is less than
$25,000, payment of the Pre-Retirement Survivor Benefit may be made, in the
sole discretion of the Committee, in a lump sum or pursuant to the Monthly
Installment Method of not more than 60 months.
ARTICLE 7
Termination Benefit
7.1 Termination Benefit. Subject to the Deduction Limitation, the Participant
shall receive a Termination Benefit, which shall be equal to the Participant's
Account Balance if a Participant experiences a Termination of Employment prior
to his or her Retirement, death or Disability.
7.2 Payment of Termination Benefit. The Participant's Termination Benefit shall
be paid in a lump sum. The lump sum payment shall be made within 60 days after
the Participant experiences the Termination of Employment. The lump sum payment
made shall be subject to the Deduction Limitation.
ARTICLE 8
Disability Waiver and Benefit
8.1 Disability Waiver.
(a) Waiver of Deferral. A Participant who is determined by the
Committee to be suffering from a Disability shall be excused from fulfilling
that portion of the Annual Deferral Amount commitment that would otherwise have
been withheld from a Participant's Base Annual Salary, Commissions or Annual
Bonus for the Plan Year during which the Participant first suffers a
Disability. During the period of Disability, the Participant shall not be
allowed to make any additional deferral elections, but will continue to be
considered a Participant for all other purposes of this Plan.
(b) Return to Work. If a Participant returns to employment after a
Disability ceases, the Participant may elect to defer an Annual Deferral Amount
for the Plan Year following his or her return to employment or service and for
every Plan Year thereafter while a Participant in the Plan; provided such
deferral elections are otherwise allowed and an Election Form is delivered to
and accepted by the Committee for each such election in accordance with Section
3.2 above.
8.2 Continued Eligibility, Disability Benefit. A Participant suffering a
Disability shall, for benefit purposes under this Plan, continue to be
considered to be employed and shall be eligible for the benefits provided for
in Articles 4, 5, 6 or 7 in accordance with the provisions of those Articles.
Notwithstanding the above, the Committee shall have the right, in its sole and
absolute discretion,
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to deem such Participant to have either experienced a Termination of Employment
(in the case of a Participant who does not qualify for Retirement) or
experienced Retirement (in the case of a Participant who qualifies for
Retirement), at any time after such Participant is determined to be suffering a
Disability, in which case the Participant shall receive a Disability Benefit
equal to his or her Account Balance at the time of the Committee's
determination. In the case of a disabled Participant who is deemed to have
experienced a Termination of Employment, the Disability Benefit shall be paid
in a lump sum within 60 days of the Committee's exercise of such right. In the
case of a disabled Participant who is deemed to have Retired, the Disability
Benefit shall be paid in accordance with Article 5. Any payment made shall be
subject to the Deduction Limitation.
ARTICLE 9
Beneficiary Designation
9.1 Beneficiary. Each Participant shall have the right, at any time, to
designate his or her Beneficiary(ies) (both primary as well as contingent) to
receive any benefits payable under the Plan to a beneficiary upon the death of
a Participant. The Beneficiary designated under this Plan may be the same as or
different from the Beneficiary designation under any other plan of an Employer
in which the Participant participates.
9.2 Beneficiary Designation, Change. A Participant shall designate his or her
Beneficiary by completing and signing the Beneficiary Designation Form, and
returning it to the Committee or its designated agent. A Participant shall have
the right to change a Beneficiary by completing, signing and otherwise
complying with the terms of the Beneficiary Designation Form and the
Committee's rules and procedures, as in effect from time to time. Upon the
acceptance by the Committee of a new Beneficiary Designation Form, all
Beneficiary designations previously filed shall be canceled. The Committee
shall be entitled to rely on the last Beneficiary Designation Form filed by the
Participant and accepted by the Committee prior to his or her death.
9.3 Acknowledgment. No designation or change in designation of a Beneficiary
shall be effective until received and acknowledged in writing by the Committee
or its designated agent.
9.4 No Beneficiary Designation. If a Participant fails to designate a
Beneficiary as provided in Sections 9.1, 9.2 and 9.3 above or, if all
designated Beneficiaries predecease the Participant or die prior to complete
distribution of the Participant's benefits, then the Participant's designated
Beneficiary shall be deemed to be his or her surviving spouse. If the
Participant has no surviving spouse, the benefits remaining under the Plan to
be paid to a Beneficiary shall be payable to the executor or personal
representative of the Participant's estate.
9.5 Doubt as to Beneficiary. If the Committee has any doubt as to the proper
Beneficiary to receive payments pursuant to this Plan, the Committee shall have
the right, exercisable in its discretion, to cause the Participant's Employer
to withhold such payments until this matter is resolved to the Committee's
satisfaction.
9.6 Discharge of Obligations. The payment of benefits under the Plan to a
Beneficiary shall fully and completely discharge all Employers and the
Committee from all further obligations under this Plan with respect to the
Participant, and that Participant's Plan Agreement shall terminate upon such
full payment of benefits.
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ARTICLE 10
Leave of Absence
10.1 Paid Leave of Absence. If a Participant is authorized by the Participant's
Employer for any reason to take a paid leave of absence from the employment of
the Employer, the Participant shall continue to be considered employed by the
Employer and the Annual Deferral Amount shall continue to be withheld during
such paid leave of absence in accordance with Section 3.3.
10.2 Unpaid Leave of Absence. If a Participant is authorized by the
Participant's Employer for any reason to take an unpaid leave of absence from
the employment of the Employer, the Participant shall continue to be considered
employed by the Employer and the Participant shall be excused from making
deferrals until the earlier of the date the leave of absence expires or the
Participant returns to a paid employment status. Upon such expiration or
return, deferrals shall resume for the remaining portion of the Plan Year in
which the expiration or return occurs, based on the deferral election, if any,
made for that Plan Year. If no election was made for that Plan Year, no
deferral shall be withheld.
ARTICLE 11
Termination, Amendment or Modification
11.1 Termination. Although each Employer anticipates that it will continue the
Plan for an indefinite period of time, there is no guarantee that any Employer
will continue the Plan or will not terminate the Plan at any time in the
future. Accordingly, each Employer reserves the right to discontinue its
sponsorship of the Plan and/or to terminate the Plan at any time with respect
to any or all of its participating Employees, by action of its board of
directors. Upon the termination of the Plan with respect to any Employer, the
Plan Agreements of the affected Participants who are employed by that Employer
shall terminate and their Account Balances, determined as if they had
experienced a Termination of Employment on the date of Plan termination or, if
Plan termination occurs after the date upon which a Participant was eligible to
Retire, then with respect to that Participant as if he or she had Retired on
the date of Plan termination, shall be paid to the Participants as follows:
Prior to a Change in Control, if the Plan is terminated with respect to all of
its Participants, an Employer shall have the right, in its sole discretion, and
notwithstanding any elections made by the Participant, to pay such benefits in
a lump sum or pursuant to an Annual Installment Method of up to 180 months,
with amounts credited and debited during the installment period as provided
herein. If the Plan is terminated with respect to less than all of its
Participants, an Employer shall be required to pay such benefits in a lump sum.
After a Change in Control if the Plan is terminated, the Employer shall be
required to pay such benefits in a lump sum. The termination of the Plan shall
not adversely affect any Participant or Beneficiary who has become entitled to
the payment of any benefits under the Plan as of the date of termination;
provided however, that the Employer shall have the right to accelerate
installment payments without a premium or prepayment penalty by paying the
Account Balance in a lump sum or pursuant to an Annual Installment Method using
fewer years.
11.2 Amendment. Any Employer may, at any time, amend or modify the Plan in
whole or in part with respect to that Employer by the action of its board of
directors; provided, however, that no amendment or modification shall be
effective to decrease or restrict the value of a Participant's Account Balance
in existence at the time the amendment or modification is made, calculated as
if the Participant had experienced a Termination of Employment as of the
effective date of the
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amendment or modification or, if the amendment or modification occurs after the
date upon which the Participant was eligible to Retire, the Participant had
Retired as of the effective date of the amendment or modification. The
amendment or modification of the Plan shall not affect any Participant or
Beneficiary who has become entitled to the payment of benefits under the Plan
as of the date of the amendment or modification; provided, however, that the
Employer shall have the right to accelerate installment payments by paying the
Account Balance in a lump sum or pursuant to an Annual Installment Method using
fewer months. The Committee may adopt any ministerial and non substantive
amendment which may be necessary or appropriate to facilitate the
administration, management and interpretation of the Plan, provided the
amendment does not materially affect the currently estimated cost to the
Company of maintaining the Plan.
11.3 Plan Agreement. Despite the provisions of Sections 11.1 and 11.2 above, if
a Participant's Plan Agreement contains benefits or limitations that are not in
this Plan document, the Employer may only amend or terminate such provisions
with the consent of the Participant.
11.4 Effect of Payment. The full payment of the applicable benefit under
Articles 4, 5, 6, 7 or 8 of the Plan shall completely discharge all obligations
to a Participant and his or her designated Beneficiaries under this Plan and
the Participant's Plan Agreement shall terminate.
ARTICLE 12
Administration
12.1 Committee Duties. This Plan shall be administered by a Committee which
shall consist of the Board, or such committee as the Board shall appoint.
Members of the Committee may be Participants under this Plan. The Committee
shall also have the discretion and authority to (i) make, amend, interpret, and
enforce all appropriate rules and regulations for the administration of this
Plan and (ii) decide or resolve any and all questions including interpretations
of this Plan including, without limitation, eligibility for participation or
benefits, as may arise in connection with the Plan. Any individual serving on
the Committee who is a Participant shall not vote or act on any matter relating
solely to himself or herself. When making a determination or calculation, the
Committee shall be entitled to rely on information furnished by a Participant
or the Company.
12.2 Agents. In the administration of this Plan, the Committee may, from time
to time, employ agents and delegate to them such administrative duties as it
sees fit (including acting through a duly appointed representative) and may
from time to time consult with counsel who may be counsel to any Employer.
12.3 Binding Effect of Decisions. The decision or action of the Committee with
respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules and
regulations promulgated hereunder shall be final and conclusive and binding
upon all persons having any interest in the Plan.
12.4 Indemnity of Committee. All Employers shall indemnify and hold harmless
the members of the Committee, and any Employee to whom the duties of the
Committee may be delegated, against any and all claims, losses, damages,
expenses or liabilities arising from any action or failure to act with respect
to this Plan, except in the case of willful misconduct by the Committee or any
of its members or any such Employee.
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12.5 Employer Information. To enable the Committee to perform its functions,
each Employer shall supply full and timely information to the Committee on all
matters relating to the compensation of its Participants, the date and
circumstances of the Retirement, Disability, death or Termination of Employment
of its Participants, and such other pertinent information as the Committee may
reasonably require.
ARTICLE 13
Other Benefits and Agreements
13.1 Coordination with Other Benefits. The benefits provided for a Participant
and Participant's Beneficiary under the Plan are in addition to any other
benefits available to such Participant under any other plan or program for
employees of the Participant's Employer. The Plan shall supplement and shall
not supersede, modify or amend any other such plan or program except as may
otherwise be expressly provided.
ARTICLE 14
Claims Procedures
14.1 Presentation of Claim. Any Participant or Beneficiary of a deceased
Participant (such Participant or Beneficiary being referred to below as a
"Claimant") may deliver to the Committee a written claim for a determination
with respect to the amounts distributable to such Claimant from the Plan. If
such a claim relates to the contents of a notice received by the Claimant, the
claim must be made within 60 days after such notice was received by the
Claimant. All other claims must be made within 180 days of the date on which
the event that caused the claim to arise occurred. The claim must state with
particularity the determination desired by the Claimant.
14.2 Notification of Decision. The Committee shall consider a Claimant's claim
within a reasonable time, and shall notify the Claimant in writing:
(a) that the Claimant's requested determination has been made, and
that the claim has been allowed in full; or
(b) that the Committee has reached a conclusion contrary, in whole or
in part, to the Claimant's requested determination, and such notice must set
forth in a manner calculated to be understood by the Claimant:
(i) the specific reason(s) for the denial of the claim, or any
part of it;
(ii) specific reference(s) to pertinent provisions of the Plan
upon which such denial was based;
(iii) a description of any additional material or information
necessary for the Claimant to perfect the claim, and an explanation of
why such material or information is necessary; and
(iv) an explanation of the claim review procedure set forth in
Section 14.3 below.
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14.3 Review of a Denied Claim. Within 60 days after receiving a notice from the
Committee that a claim has been denied, in whole or in part, a Claimant (or the
Claimant's duly authorized representative) may file with the Committee a
written request for a review of the denial of the claim. Thereafter, but not
later than 30 days after the review procedure began, the Claimant (or the
Claimant's duly authorized representative):
(a) may review pertinent documents;
(b) may submit written comments-or other documents; and/or
(c) may request a hearing, which the Committee, in its sole
discretion, may grant.
14.4 Decision on Review. The Committee shall render its decision on review
promptly, and not later than 60 days after the filing of a written request for
review of the denial, unless a hearing is held or other special circumstances
require additional time, in which case the Committee's decision must be
rendered within 120 days after such date. Such decision must be written in a
manner calculated to be understood by the Claimant, and it must contain:
(a) specific reasons for the decision;
(b) specific reference(s) to the pertinent Plan provisions upon which
the decision was based; and
(c) such other matters as the Committee deems relevant.
14.5 Legal Action. A Claimant's compliance with the foregoing provisions of
this Article 14 is a mandatory prerequisite to a Claimant's right to commence
any legal action with respect to any claim for benefits under this Plan.
ARTICLE 15
Trust
15.1 Establishment of the Trust. The Company shall establish the Trust, and
each Employer may transfer over to the Trust such assets as the Employer
determines, in its sole discretion.
15.2 Interrelationship of the Plan and the Trust. The provisions of the Plan
and the Plan Agreement shall govern the rights of a Participant to receive
distributions pursuant to the Plan. The provisions of the Trust shall govern
the rights of the Employers, Participants and the creditors of the Employers to
the assets transferred to the Trust. Each Employer shall at all times remain
liable to carry out its obligations under the Plan.
15.3 Distributions From the Trust. Each Employer's obligations under the Plan
may be satisfied with Trust assets distributed pursuant to the terms of the
Trust, and any such distribution shall reduce the Employer's obligations under
this Plan.
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ARTICLE 16
Miscellaneous
16.1 Status of Plan. The Plan is intended to be a plan that is not qualified
within the meaning of Code Section 401(a) and that "is unfunded and is
maintained by an employer primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees"
within the meaning of ERISA Sections 201(2), 301(a)(3) and 401(a)(1). The Plan
shall be administered and interpreted to the extent possible in a manner
consistent with that intent.
16.2 Unsecured General Creditor. Participants and their Beneficiaries, heirs,
successors and assigns shall have no legal or equitable rights, interests or
claims in any property or assets of an Employer. For purposes of the payment of
benefits under this Plan, any and all of an Employer's assets shall be, and
remain, the general, unpledged unrestricted assets of the Employer. An
Employer's obligation under the Plan shall be merely that of an unfunded and
unsecured promise to pay money in the future.
16.3 Employer's Liability. An Employer's liability for the payment of benefits
shall be defined only by the Plan and the Plan Agreement, as entered into
between the Employer and a Participant. An Employer shall have no obligation to
a Participant under the Plan except as expressly provided in the Plan and his
or her Plan Agreement.
16.4 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, alienate 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, attachment, garnishment or sequestration for
the payment of any debts, judgments, alimony or separate maintenance owed by a
Participant or any other person, be transferable by operation of law in the
event of a Participant's or any other person's bankruptcy or insolvency or be
transferable to a spouse as a result of a property settlement or otherwise.
16.5 Not a Contract of Employment. The terms and conditions of this Plan shall
not be deemed to constitute a contract of employment between any Employer and
the Participant. Such employment is hereby acknowledged to be an "at will"
employment relationship that can be terminated at any time for any reason, or
no reason, with or without cause, and with or without notice, unless expressly
provided in a written employment agreement. Nothing in this Plan shall be
deemed to give a Participant the right to be retained in the service of any
Employer as an Employee, or to interfere with the right of any Employer to
discipline or discharge the Participant at any time.
16.6 Furnishing Information. A Participant or his or her Beneficiary will
cooperate with the Committee by furnishing any and all information requested by
the Committee and take such other actions as may be requested in order to
facilitate the administration of the Plan and the payments of benefits
hereunder, including but not limited to taking such physical examinations as
the Committee may deem necessary.
16.7 Terms. Whenever any words are used herein in the masculine, they shall be
construed as though they were in the feminine in all cases where they would so
apply; and whenever any words
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are used herein in the singular or in the plural, they shall be construed as
though they were used in the plural or the singular, as the case may be, in all
cases where they would so apply.
16.8 Captions. The captions of the articles, sections and paragraphs of this
Plan are for convenience only and shall not control or affect the meaning or
construction of any of its provisions.
16.9 Governing Law. Except as superseded by federal law, the provisions of this
Plan shall be construed and interpreted according to the internal laws of the
State of Alabama without regard to its conflicts of laws principles.
16.10 Notice. Any notice or filing required or permitted to be given to the
Committee under this Plan shall be sufficient if in writing and hand-delivered,
or sent by registered or certified mail, to the address below:
Russell Corporation
Attention: Legal Department
755 Lee Street
Alexander City, Alabama 35011-0272
Such notice shall be deemed given as of the date of delivery or, if delivery is
made by mail, as of the date shown on the postmark on the receipt for
registration or certification.
Any notice or filing required or permitted to be given to a Participant under
this Plan shall be sufficient if in writing and hand-delivered, or sent by
mail, to the last known address of the Participant.
16.11 Successors. The provisions of this Plan shall bind and inure to the
benefit of the Participant's Employer and its successors and assigns and the
Participant and the Participant's designated Beneficiaries.
16.12 Validity. In case any provision of this Plan shall be illegal or invalid
for any reason, said illegality or invalidity shall not affect the remaining
parts hereof, but this Plan shall be construed and enforced as if such illegal
or invalid provision had never been inserted herein.
16.13 Incompetent. If the Committee determines in its discretion that a benefit
under this Plan is to be paid to a minor, a person declared incompetent or to a
person incapable of handling the disposition of that person's property, the
Committee may direct payment of such benefit to the guardian, legal
representative or person having the care and custody of such minor, incompetent
or incapable person. The Committee may require proof of minority, incompetence,
incapacity or guardianship, as it may deem appropriate prior to distribution of
the benefit. Any payment of a benefit shall be a payment for the account of the
Participant and the Participant's Beneficiary, as the case may be, and shall be
a complete discharge of any liability under the Plan for such payment amount.
16.14 Court Order. The Committee is authorized to make any payments directed by
court order in any action in which the Plan or the Committee has been named as
a party. In addition, if a court determines that a spouse or former spouse of a
Participant has an interest in the Participant's benefits under the Plan in
connection with a property settlement or otherwise, the Committee, in its sole
discretion, shall have the right, notwithstanding any election made by a
Participant, to immediately
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distribute the spouse's or former spouse's interest in the Participant's
benefits under the Plan to that spouse or former spouse.
16.15 Distribution in the Event of Taxation.
(a) In General. If, for any reason, all or any portion of a
Participant's benefits under this Plan becomes taxable to the Participant prior
to receipt, a Participant may petition the Committee before a Change in
Control, or the trustee of the Trust after a Change in Control, for a
distribution of that portion of his or her benefit that has become taxable.
Upon the grant of such a petition, which grant shall not be unreasonably
withheld (and, after a Change in Control, shall be granted), a Participant's
Employer shall distribute to the Participant immediately available funds in an
amount equal to the taxable portion of his or her benefit (which amount shall
not exceed a Participant's unpaid Account Balance under the Plan). If the
petition is granted, the tax liability distribution shall be made within 90
days of the date when the Participant's petition is granted. Such a
distribution shall affect and reduce the benefits to be paid under this Plan.
(b) Trust. If the Trust terminates in accordance with its terms and
benefits are distributed from the Trust to a Participant in accordance with
such terms, the Participant's benefits under this Plan shall be reduced to the
extent of such distributions.
16.16 Insurance. The Employers, on their own behalf or on behalf of the trustee
of the Trust, and, in their sole discretion, may apply for and procure
insurance on the life of the Participant, in such amounts and in such forms as
the Trust may choose. The Employers or the trustee of the Trust, as the case
may be, shall be the sole owner and beneficiary of any such insurance. The
Participant shall have no interest whatsoever in any such policy or policies,
and at the request of the Employers shall submit to medical examinations and
supply such information and execute such documents as may be required by the
insurance company or companies to whom the Employers have applied for
insurance.
16.17 Legal Fees To Enforce Rights After Change in Control. The Company and
each Employer is aware that upon the occurrence of a Change in Control, the
Board or the board of directors of a Participant's Employer (which might then
be composed of new members) or a shareholder of the Company or the
Participant's Employer, or of any successor corporation might then cause or
attempt to cause the Company, the Participant's Employer or such successor to
refuse to comply with its obligations under the Plan and might cause or attempt
to cause the Company or the Participant's Employer to institute, or may
institute, litigation seeking to deny Participants the benefits intended under
the Plan. In these circumstances, the purpose of the Plan could be frustrated.
Accordingly, if, following a Change in Control, it should appear to any
Participant that the Company, the Participant's Employer or any successor
corporation has failed to comply with any of its obligations under the Plan or
any agreement thereunder or, if the Company, such Employer or any other person
takes any action to declare the Plan void or unenforceable or institutes any
litigation or other legal action designed to deny, diminish or to recover from
any Participant the benefits intended to be provided, then the Company and the
Participant's Employer irrevocably authorize such Participant to retain counsel
of his or her choice at the expense of the Company and the Participant's
Employer (who shall be jointly and severally liable) to represent such
Participant in connection with the initiation or defense of any litigation or
other legal action, whether by or against the Company, the Participant's
Employer or any director, officer, shareholder or other person affiliated with
the Company, the
23
<PAGE> 24
Participant's Employer or any successor thereto in any jurisdiction; provided,
however, the liability of the Company and the Participant's Employer shall be
limited to all reasonable fees and costs of the Participant's counsel.
24
<PAGE> 1
Exhibit 5(a)
October 26, 1999
Russell Corporation
755 Lee Street
Alexander City, Alabama 35011
Re: Russell Corporation Flexible Deferral Plan
Ladies and Gentlemen:
In our capacity as counsel for Russell Corporation, an Alabama
corporation (the "Company"), we have examined the Registration Statement on
Form S-8 (the "Registration Statement") in form as proposed to be filed by the
Company with the Securities and Exchange Commission (the "Commission") pursuant
to the provisions of the Securities Act of 1933, as amended, relating to the
issuance of up to $5,000,000 in Deferred Compensation Interests ("Interests")
pursuant to the Russell Corporation Flexible Deferral Plan (the "Plan"). In this
connection, we have examined such records, documents and proceedings as we have
deemed relevant and necessary as a basis for the opinions expressed herein.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Alabama;
2. The Plan has been duly and validly authorized and adopted, and the
Interests being registered hereunder that may be issued to its participants,
when issued or sold in accordance with the Plan, will be valid and binding
obligations of the Company, enforceable in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy, insolvency, or other laws
of general applicability relating to or affecting enforcement of creditors'
rights or by general principles of equity.
3. The provisions of the written documents constituting the Plan
comply with the requirements of ERISA pertaining to such provisions.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement. In addition, we hereby consent to the
inclusion of the statements made in reference to this firm under the caption
"Interests of Named Experts and Counsel" in Item 5 of Part II of the
Registration Statement.
Yours very truly,
/s/ Bradley Arant Rose & White LLP
<PAGE> 1
Exhibit 23(a)
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Russell Corporation Flexible Deferral Plan of our report
dated January 29, 1999, with respect to the consolidated financial statements of
Russell Corporation incorporated by reference in its Annual Report (Form 10-K)
for the fiscal year ended January 2, 1999, and our report dated March 29, 1999,
with respect to the related financial statement schedule included therein, filed
with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Birmingham, Alabama
October 26, 1999
<PAGE> 1
Exhibit 24(a)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers
and/or directors whose signatures appear below hereby constitutes and appoints
Floyd G. Hoffman and Steve R. Forehand, and each of them, his or her true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign a registration statement of Russell Corporation on
Form S-8 relating to the issuance of up to $5,000,000 in Deferred Compensation
Interests pursuant to the Russell Corporation Flexible Deferral Plan, including
all amendments to such registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and with any state securities commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
Dated as of this 26 day of October, 1999.
Signature Title
/s/ John F. Ward Chairman of the Board,
- ---------------------- President, and Chief Executive
John F. Ward Officer
/s/ Eric N. Hoyle Executive Vice President,
- ---------------------- Chief Financial Officer, and
Eric N. Hoyle Director
/s/ Larry E. Workman Controller
- ----------------------
Larry E. Workman
/s/ Herschel M. Bloom Director
- ----------------------
Herschel M. Bloom
/s/ Ronald G. Bruno Director
- ----------------------
Ronald G. Bruno
/s/ Timothy A. Lewis Director
- ----------------------
Timothy A. Lewis
/s/ C.V. Nalley III Director
- ----------------------
C.V. Nalley III
<PAGE> 2
/s/ Margaret M. Porter Director
- ----------------------
Margaret M. Porter
/s/ Benjamin Russell Director
- ----------------------
Benjamin Russell
/s/ John R. Thomas Director
- ----------------------
John R. Thomas
/s/ John A. White Director
- ----------------------
John A. White
