Exhibit
10.1
H.B.
FULLER COMPANY
KEY
EMPLOYEE DEFERRED COMPENSATION PLAN
(2005
Amendment and Restatement)
H.B.
FULLER COMPANY
KEY
EMPLOYEE DEFERRED COMPENSATION PLAN
(2005
Amendment and Restatement)
TABLE
OF CONTENTS
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Page
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SECTION
1.
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INTRODUCTION
AND DEFINITIONS
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1
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1.1.
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Introduction
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1.1.1.
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Rules
That Apply To Pre-2005 Credits
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1.1.2.
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Rules
That Apply To 2005 and 2006 Credits
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1.1.3.
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Rules
That Apply To Post-2006 Credits
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1.2.
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Definitions
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1.2.1.
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Account
or Accounts
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(a) Deferred
Compensation Account
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(b) Company
Stock Account
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1.2.2.
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Affiliate
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1.2.3.
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Beneficiary
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1.2.4.
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Change
in Control
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1.2.5.
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Code
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1.2.6.
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Committee
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1.2.7.
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Common
Stock
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1.2.8.
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Company
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1.2.9.
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Disability
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1.2.10.
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Distribution
Event
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1.2.11.
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Effective
Date
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1.2.12.
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Eligible
Compensation
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1.2.13.
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Employers
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1.2.14.
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ERISA
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1.2.15.
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Measuring
Options
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1.2.16.
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Participant
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1.2.17.
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PUP
Award
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1.2.18.
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Plan
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1.2.19.
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Plan
Statement
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1.2.20.
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Separation
from Service
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1.2.21.
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STIP
Award
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1.2.22.
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Unforeseeable
Emergency
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1.2.23.
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Valuation
Date
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SECTION
2.
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PARTICIPATION
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6
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SECTION
3.
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ELECTIONS
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7
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3.1.
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Compensation
Subject to Elective Deferral
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3.2.
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Eligible
Compensation
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3.2.1.
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Timing
and Contents
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3.2.2.
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Matching
Credits Attributable to Deferrals
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3.2.3.
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Duration
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3.3.
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STIP/PUP
Awards
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3.3.1.
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Timing
and Contents
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3.3.2.
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Matching
Credits Attributable to Deferrals
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3.3.3.
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Duration
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3.4.
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Discretionary
Credits
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3.5.
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Irrevocability
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3.6.
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Subsequent
Changes in Distribution Elections
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3.7.
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Maximum/Minimum
Deferral Amounts
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3.7.1.
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Eligible
Compensation
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3.7.2.
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STIP
and PUP Awards
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3.8.
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Suspension
of Eligibility
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SECTION
4.
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CREDITS
TO ACCOUNTS
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11
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4.1.
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Deferral
Credits
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4.2.
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Matching
Credits
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4.3.
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Discretionary
Credits
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SECTION
4.
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ADJUSTMENT
OF ACCOUNTS
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12
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5.1.
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Establishment
of Accounts
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5.2.
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Adjustments
of Accounts
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5.3.
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Investment
Adjustments
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5.4.
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Cash
Dividends
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5.5.
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Stock
Dividends
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5.6.
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Transfer
Upon Change in Control
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SECTION
6.
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VESTING
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13
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SECTION
7.
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DISTRIBUTIONS
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14
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7.1.
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Time
of Distribution
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7.2.
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Form
of Distribution
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7.3.
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Installment
Amounts
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7.4.
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Distributions
in Cash or Stock
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7.5.
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Special
Rules
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7.5.1.
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Unforeseeable
Emergency
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7.5.2.
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Code
§162 Delay
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7.5.3.
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No
Parachute Payment
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7.5.4.
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Lump
Sum Distribution to Pay Taxes
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7.5.5.
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Small
Amount Lump Sum
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7.6.
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Designation
of Beneficiaries
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7.6.1.
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Right
to Designate
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7.6.2.
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Failure
of Designation
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7.6.3.
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Disclaimers
by Beneficiaries
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7.6.4.
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Definitions
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7.6.5.
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Special
Rules
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7.7.
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No
Spousal Rights
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7.8.
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Death
Prior to Full Payment
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7.9.
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Facility
of Payment
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SECTION
8.
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FUNDING
OF PLAN
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20
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8.1.
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Unfunded
Obligation
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8.2.
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Corporate
Obligation
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SECTION
9.
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AMENDMENT
AND TERMINATION
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21
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9.1.
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Amendment
of Plan
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9.2.
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Termination
of Plan
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9.3.
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No
Oral Amendments
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SECTION
10.
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DETERMINATIONS
— RULES AND REGULATIONS
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22
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10.1.
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Determinations
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10.2.
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Method
of Executing Instruments
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10.3.
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Claims
Procedure
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10.3.1.
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Initial
Claim and Decision
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10.3.2.
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Request
for Review and Final Decision
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10.4.
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Rules
and Regulations
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10.4.1.
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Adoption
of Rules
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10.4.2.
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Specific
Rules
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10.4.3.
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Limitations
and Exhaustion
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SECTION
11.
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PLAN
ADMINISTRATION
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26
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11.1.
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Authority
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11.1.1.
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Company
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11.1.2.
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Committee
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11.1.3.
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Board
of Directors
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11.2.
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Conflict
of Interest
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11.3.
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ERISA
Administrator
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11.4.
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Service
of Process
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SECTION
12.
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CONSTRUCTION
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27
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12.1.
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ERISA
Status
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12.2.
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IRC
Status
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12.3.
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Effect
on Other Plans
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12.4.
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Disqualification
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12.5.
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Rules
of Document Construction
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12.6.
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References
to Laws
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12.7.
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Choice
of Law
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12.8.
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Delegation
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12.9.
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Not
an Employment Contract
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12.10.
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Tax
Withholding
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12.11.
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Expenses
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12.12.
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Spendthrift
Provision
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APPENDIX A
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TRANSITIONAL
RULES FOR 2005 AND 2006 CREDITS
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A-1
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APPENDIX B
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RULES
FOR PRE-2005 CREDITS - (“PRIOR PLAN STATEMENT”)
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B-1
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H.B.
FULLER COMPANY
KEY
EMPLOYEE DEFERRED COMPENSATION PLAN
(2005
Amendment and Restatement)
SECTION
1
INTRODUCTION
AND DEFINITIONS
1.1.
Introduction
.
Effective October 14, 1999, H.B. Fuller Company (“H.B. Fuller”) and certain
affiliated corporations (“Employers” or “Employer” as applicable) established a
nonqualified, unfunded deferred compensation plan (the “Plan”) to assist in
attracting key employees and encouraging their long term commitment to the
Company’s success by offering them an opportunity to defer compensation and to
share in increases in the value of H.B. Fuller. The Plan is currently embodied
in a document titled “H.B. Fuller Company Key Employee Deferred Compensation
Plan,” as amended (the “Prior Plan Statement”).
1.1.1.
Rules
That Apply To Pre-2005 Credits.
Amounts
credited under the Plan which relate entirely to services performed before
January 1, 2005, shall continue to be governed by the terms of the Prior
Plan Statement, attached hereto as Appendix B
,
subject
to the following exceptions: (i) effective with respect to any Participant
who dies on or after January 1, 2007 (regardless whether the Participant
designated a beneficiary before or after January 1, 2007), the rules in
Section 8.3 of the Prior Plan Statement related to beneficiaries shall be
replaced by the rules in Section 7.6 of the Plan Statement, and
(ii) effective for any claims filed on or after January 1, 2007, the
claims procedure in Section 11.3 of the Prior Plan Statement shall be
replaced by the claims procedure in Section 10 of the Plan
Statement.
1.1.2.
Rules
That Apply To 2005 and 2006 Credits.
Amounts
credited under the Plan which relate all or in part to services performed on
or
after January 1, 2005, but before January 1, 2007, shall be governed
by the terms of the Prior Plan Statement subject to the transitional rules,
attached hereto as Appendix A, which are intended to comply with the
deferred compensation provisions in section 409A of the Code. Additionally,
(i) effective with respect to any Participant who dies on or after
January 1, 2007 (regardless whether the Participant designated a
beneficiary before or after January 1, 2007), the rules in Section 8.3
of the Prior Plan Statement related to beneficiaries shall be replaced by the
rules in Section 7.6 of the Plan Statement, and (ii) effective for any
claims filed on or after January 1, 2007, the claims procedure in
Section 11.3 of the Prior Plan Statement shall be replaced by the claims
procedure in Section 10 of the Plan Statement.
1.1.3.
Rules
That Apply To Post-2006 Credits.
Amounts
credited under the Plan which relate all or in part to services performed on
or
after January 1, 2007, will be governed by the terms of this Plan
Statement, the terms of which are intended to comply with the deferred
compensation provisions in section 409A of the Code.
1.2.
Definitions
.
When
the following terms are used herein with initial capital letters, they shall
have the following meanings:
1.2.1.
Account
or Accounts
—
the
separate bookkeeping account or accounts representing the separate unfunded
and
unsecured general obligation of the Employers established with respect to each
person who becomes a Participant in this Plan in accordance with Section 2
and to which is credited the amounts specified Sections 4 and 5 and from
which are subtracted payments made pursuant to Section 7. The following
Accounts (and such subaccounts as the Company may determine necessary or useful
to the administration of this Plan) will be maintained under this Plan for
Participants:
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(a)
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Deferred
Compensation Account
—
the Account maintained for each Participant to which is credited
deferral
amounts under Section 4.1 in accordance with the Participant’s
allocation election. The value of the Deferred Compensation Account
shall
be measured by the Measuring Option(s) elected by the Participant
from
time to time as permitted by the Company. Credits in the Deferred
Compensation Account cannot later be transferred to the Company Stock
Account. Distributions from the Deferred Compensation Account shall
be
made in the form of cash.
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(b)
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Company
Stock Account
—
the Account maintained for each Participant to which is credited,
(i) deferral amounts pursuant to Section 4.1 in accordance with
the Participant’s allocation election, (ii) matching amounts pursuant
to Section 4.2, and (iii) any discretionary amounts pursuant to
Section 4.3. The value of the Company Stock Account is measured by
the value of H.B. Fuller Common Stock. Except as provided in
Section 5.6 following a Change in Control, credits in the Company
Stock Account cannot later be transferred to the Deferred Compensation
Account. Distributions from Company Stock Account shall be made in
the
form of H.B. Fuller Common Stock.
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1.2.2.
Affiliate
—
a
business entity which is affiliated in ownership with H.B. Fuller that is
recognized as an Affiliate by the Company for the purposes of this
Plan.
1.2.3.
Beneficiary
—
a
person designated by a Participant (or automatically by operation of
Section 7.6 to receive all or a part of the Participant’s Account in the
event of the Participant’s death prior to full distribution thereof. A person so
designated shall not be considered a Beneficiary until the death of the
Participant.
1.2.4.
Change
in Control
—
any
of
the following events:
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(a)
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a
change in control of the Company of a nature that would be required
to be
reported in accordance with Regulation 14A promulgated under the
Securities Exchange Act of 1934 (the Exchange Act”), whether or not the
Company is then subject to such reporting
requirement;
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(b)
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a
public announcement (which for purposes hereof, shall include, without
limitation, a report filed pursuant to section 13(d) of the Exchange
Act) that any individual, corporation, partnership, association,
trust or
other entity becomes a beneficial owner (as defined in Rules 13(d)(3)
promulgated under the Exchange Act), directly or indirectly, of securities
or the Company representing 15% or more of the Voting Power of the
Company
then outstanding;
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(c)
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the
individuals who, as of January 1, 2005, are members of the Board of
Directors of the Company (the “Incumbent Board”) cease for any reason to
constitute at least a majority of the Board (provided, however, that
if
the election or nomination for election by the Company’s shareholders of
any new director was approved by a vote of at least a majority of
the
Incumbent Board, such a new director shall be considered to be a
member of
the Incumbent Board);
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(d)
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the
approval of the shareholders of the Company of (i) any consolidation,
merger or statutory share exchange of the Company with any person
in which
the surviving entity would not have as its directors at least 60%
of the
Incumbent Board and as a result of which those persons who were
shareholders of the Company immediately prior to such transaction
would
not hold, immediately after such transaction, at least 60% of the
Voting
Power of the Company then outstanding or the combined voting power
of the
surviving entity’s then outstanding voting securities; (ii) any sale,
lease, exchange or other transfer in one transaction or series of
related
transactions substantially all of the assets of the Company; or
(iii) the adoption of any plan or proposal for the complete or
partial liquidation or dissolution of the Company;
or
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(e)
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a
determination by a majority of the members of the Incumbent Board,
in
their sole and absolute discretion, that there has been a Change
in
Control of the Company.
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1.2.5.
Code
—
the
Internal Revenue Code of 1986, as amended (including, when the context requires,
all regulations, interpretations and rulings issued
thereunder).
1.2.6.
Committee
—
the
Compensation Committee of the Board of Directors of H.B. Fuller (or any
successor committee) or such other person or persons whom the Committee
authorizes to act on its behalf to administer the Plan.
1.2.7.
Common
Stock
—
common
stock par value $1.00 per share, of H.B. Fuller Company as such stock may be
reclassified, converted or exchanged by reorganization, merger of
otherwise.
1.2.8.
Company
—
H.B.
Fuller Company and any successor thereto.
1.2.9.
Disability
—
a
medically determinable physical or mental impairment which (i) is expected
to result in death or to last for a continuous period of at least 12 months,
(ii) renders the Participant incapable of any substantial gainful activity,
and (iii) is evidenced by a certification to this effect by a doctor of
medicine approved by the Company. Alternatively, a Participant will be
considered disabled if the Participant is, by reason of any medically
determinable physical or mental impairment which is expected to result in death
or to last for a continuous period of at least 12 months, receiving income
replacement for a period of at least 3 months under the Employer’s disability
plan. A Participant who provides proof of a determination of disability by
the
Social Security Administration will be deemed disabled under this Plan.
Disability shall be construed to be consistent with the meaning of that term
in
section 409A of the Code and regulations and guidance
thereunder.
1.2.10.
Distribution
Event
—
any
of
the occurrences described in Section 7.1 by reason of which a Participant
or Beneficiary may become entitled to a distribution from this
Plan.
1.2.11.
Effective
Date
—
January 1, 2005.
1.2.12.
Eligible
Compensation
—
Eligible Earnings as defined under the H.B. Fuller Thrift Plan; provided,
however, that Eligible Compensation for purpose of this Plan shall be determined
without regard to limitations imposed under section 401(a)(17) of the Code.
Notwithstanding the foregoing, Eligible Compensation will not include any awards
under the Short-Term Incentive Plan or the Performance Unit Plan.
1.2.13.
Employers
—
H.B.
Fuller and each business entity affiliated with H.B. Fuller that employs persons
who are designated by the Committee for participation in this Plan (collectively
the “Employers” and separately the “Employer”).
1.2.14.
ERISA
—
the
Employee Retirement Income Security Act of 1974, as amended (including, when
the
context requires, all regulations, interpretations and rulings issued
thereunder).
1.2.15.
Measuring
Options
—
the
investment options determined from time to time in the sole discretion of the
Committee which may be elected by the Participant to measure the value of the
Participant’s credits in the Deferred Compensation Account.
1.2.16.
Participant
—
an
employee of an Employer who is designated as eligible to participate in this
Plan and becomes a Participant in this Plan in accordance with the provisions
of
Section 2. An employee who has become a Participant shall be considered to
continue as a Participant in this Plan until the date of the Participant’s death
or, if earlier, the date when the Participant is no longer employed by an
Employer or an Affiliate and upon which the Participant no longer has any
Account under this Plan (that is, the Participant has received a distribution
of
all of the Participant’s Account).
1.2.17.
PUP
Award
—
an
award paid pursuant to the H.B. Fuller Company Performance Unit Plan which
is
performance-based compensation as defined in section 409A of the
Code.
1.2.18.
Plan
—
the
nonqualified, income deferral program maintained by H.B. Fuller established
for
the benefit of Participants eligible to participate therein, as set forth in
the
Plan Statement. (As used herein, “Plan” does not refer to the documents pursuant
to which this Plan is maintained. That document is referred to herein as the
“Plan Statement”). The Plan shall be referred to as the H.B. Fuller Company Key
Employee Deferred Compensation Plan.
1.2.19.
Plan
Statement
—
this
document entitled “H.B. Fuller Company Key Employee Deferred Compensation Plan
(2005 Amendment and Restatement)” as adopted by the Board of Directors of H.B.
Fuller, as the same may be amended from time to time thereafter.
1.2.20.
Separation
from Service
—
a
complete severance of an employee’s employment relationship with the Employers
and all Affiliates, if any, for any reason other than the employee’s death. A
transfer from employment with an Employer to employment with an Affiliate of
an
Employer shall not constitute a Separation from Service. Separation from Service
shall be construed to be consistent with the meaning of that term in
section 409A of the Code and regulations and guidance
thereunder.
1.2.21.
STIP
Award
—
an
award paid pursuant to the H.B. Fuller Company Short-Term Incentive Plan which
is performance-based compensation as defined in section 409A of the
Code.
1.2.22.
Unforeseeable
Emergency
—
a
severe financial hardship to the Participant resulting from an illness or
accident of the Participant, the Participant’s spouse, or a dependent (as
defined in section 152(a) of the Code) of the Participant, loss of the
Participant’s property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control
of
the Participant. Unforeseeable Emergency shall be construed to be consistent
with the meaning of that term in section 409A of the Code and regulations
and guidance thereunder.
1.2.23.
Valuation
Date
—
the
last business day of each month, and such other dates as may be established
by
the Committee from time to time.
SECTION
2
PARTICIPATION
Each
employee of an Employer shall become a Participant in the Plan upon the
satisfaction of the following requirements:
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(a)
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Employee
is determined by the Committee to be classified at the pay grade
of
thirty-two (32) or higher or to be a member of a select group of
management or highly compensated employees (as that term is used
in
ERISA); and
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(b)
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Employee
is affirmatively selected by the Committee for participation in the
Plan.
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A
Participant may defer compensation only as permitted under the timing rules
in
Section 3.
SECTION
3
ELECTIONS
3.1.
Compensation
Subject to Elective Deferral
.
A
Participant may elect to defer all or a portion of the following
compensation:
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(a)
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Eligible
Compensation;
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provided,
however, that deferrals of any STIP and PUP Awards shall be permitted only
if
the Participant was a employed by an Employer and covered under the STIP or
PUP,
as applicable, on the first day of the performance period upon which the Award
is based.
3.2.
Eligible
Compensation
.
3.2.1.
Timing
and Contents.
A
Participant’s election to defer Eligible Compensation shall be made at the time
and in the form and manner prescribed by the Company. A Participant’s deferral
election shall apply only to Eligible Compensation for services performed during
the calendar year beginning after the election is filed. The deferral election
may also apply to Eligible Compensation included in the first paycheck of a
calendar year for services performed in the prior year. Such election shall
specify:
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(a)
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the
amount of the Participant’s Eligible Compensation to be
deferred,
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(b)
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the
portions of such deferrals to be allocated to the Deferred Compensation
Account and to the Company Stock
Account,
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(c)
|
the
Measuring Option(s) to be used to measure increase (or decreases)
in the
value of such deferrals allocated to Deferred Compensation
Account,
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(d)
|
the
form of distribution for such deferrals,
and
|
|
(e)
|
a
specified date of distribution, if any, under Section 7.1(e) for such
deferrals.
|
3.2.2.
Matching
Credits Attributable to Deferrals.
A
Participant’s election of form of distribution and specified date for
distribution, if any, with respect to deferrals of Eligible Compensation for
a
calendar year shall also apply to matching credits under Section 4.2
attributable to such deferrals.
3.2.3.
Duration.
A
Participant’s election to defer Eligible Compensation shall expire on the last
day of the calendar year to which it relates and new elections must be made
with
respect to subsequent calendar years.
3.3.
STIP/PUP
Awards
.
3.3.1.
Timing
and Contents.
A
Participant’s election to defer any STIP and PUP Awards shall be made at the
time and in the form and manner prescribed by the Plan Administrator. Such
election shall be filed with the Company at least six (6) months before the
end
of the performance period upon which the Award is based and shall
specify:
|
(a)
|
the
amount of the Award to be deferred,
|
|
(b)
|
the
portions of such deferrals to be allocated to the Deferred Compensation
Account and to the Company Stock
Account,
|
|
(c)
|
the
Measuring Option(s) to be used to measure increases (or decreases)
in
value of such deferrals allocated to Deferred Compensation
Account,
|
|
(d)
|
the
form of distribution for such deferrals,
and
|
|
(e)
|
a
specified date for distribution, if any, under Section 7.1(e) for
such deferrals;
|
provided,
however, that if the Participant has previously filed an election to defer
Eligible Compensation during the calendar year in which an election under this
Section 3.3.1 is filed, the Participant’s election of (i) allocation
between Deferred Compensation Account and Company Stock Account, (ii) form
of distribution, and (iii) specified date of distribution, if any, with
respect to such Eligible Compensation shall also apply to the allocation and
distribution of deferrals of the STIP/PUP Awards.
3.3.2.
Matching
Credits Attributable to Deferrals.
A
Participant’s election of form of distribution and specified date for
distribution, if any, with respect to deferrals of STIP and PUP Awards for
a
performance period shall also apply to matching credits under Section 4.2
attributable to such deferrals.
3.3.3.
Duration.
A
Participant’s election to defer STIP and PUP Awards shall apply only to the
Award for the performance period specified on the election forms and new
elections must be made with respect to subsequent performance
periods.
3.4.
Discretionary
Credits
.
The
Participant’s election of form of distribution and specified date, if any, with
respect to Eligible Compensation during the calendar year shall apply to any
discretionary credits made during such calendar year. If the Participant has
not
elected to defer Eligible Compensation during the calendar year in which
discretionary credits are made, the Participant shall be deemed to have elected
to receive distribution of such amounts in the form of a lump sum and not to
have elected a specified date for distribution under
Section 7.1(e).
3.5.
Irrevocability.
An
election to defer Eligible Compensation or any STIP/PUP Awards that is accepted
by the Committee shall be irrevocable for the calendar year or performance
period (as applicable) to which it applies; provided, however, that if the
Participant receives a distribution from the Plan on account of a Disability
or
Unforeseeable Emergency during period when the election is in effect, the
Participant’s deferral elections shall be cancelled, and further deferrals shall
not be made during that period.
3.6.
Subsequent
Changes in Distribution Elections.
A
Participant shall be permitted to change a prior election of the form of
distribution or the specified date of distribution if such election change
is
made in the form and manner prescribed by the Company and only if the following
conditions are satisfied:
|
(a)
|
the
election change shall not take effect until the date that is twelve
(12)
months after the date on which the Participant submits the election
change;
|
|
(b)
|
if
the Participant changes the form of distribution, any distribution
that
occurs on account of Distribution Events in Section 7.1(a), (d) or
(e) (
i.e
.,
age 65, Separation from Service, or specified date), distribution
shall be
delayed until the date that is five (5) years after the date the
distribution would otherwise have been made;
and
|
|
(c)
|
if
the Participant changes a specified date of distribution under
Section 7.1(e), the election change (i) must be submitted at
least 12 months before the date previously specified by the Participant,
and (ii) the new specified date shall be at least five (5) years
after the date previously
specified.
|
3.7.
Maximum/Minimum
Deferral Amounts
.
3.7.1.
Eligible
Compensation.
A
Participant shall be permitted to elect to defer up to eighty percent (80%)
of
Eligible Compensation in one percent (1%) increments. In special circumstances
a
greater percentage may be determined by the Committee based on whether the
compensation otherwise paid to the Participant would be fully deductible for
federal or state income tax purposes under Code
section 162(m).
3.7.2.
STIP
and PUP Awards.
A
Participant shall be permitted to elect to defer up to one hundred percent
(100%) of any STIP and PUP Awards in one percent (1%) increments. A Participant
election shall be automatically reduced to the extent necessary to allow for
full payment of all FICA, federal, state and/or local income taxes.
3.8.
Suspension
of Eligibility
.
If the
Committee determines that a Participant ceases to be a member of a select group
of management or highly compensated employees (as that term is used in ERISA),
the Participant’s deferral election will terminate and no additional amounts
will be credited to the Participant’s Accounts until such time as the individual
is again determined to be eligible to participate in the Plan by the Committee
and makes a new election under Section 3. However, the Accounts of such
Participant shall continue to be adjusted pursuant to Section 5 until
distributed according to prior elections.
SECTION
4
CREDITS
TO ACCOUNTS
4.1.
Deferral
Credits.
On the
date on which the compensation would otherwise have been paid to the Participant
(or as soon as administratively practicable thereafter), the Company shall
credit the Participant’s Deferred Compensation Account or Company Stock Account,
according to the Participant’s allocation election, the amount the Participant
elected to defer under Section 3. The amount that is allocated and credited
to the Deferred Compensation Account shall be stated as a dollar amount. The
amount that is allocated and credited to the Company Stock Account shall be
stated as the number of units (including fractions thereof) of Common Stock
that
could have been purchased with such deferrals as of the close of business on
the
date such amounts would otherwise have been paid to the
Participant.
4.2.
Matching
Credits
.
At the
same time as the Participant’s Company Stock Account is credited based on
elective deferrals, the Company shall credit the Participant’s Company Stock
Account with an additional number of units (including fractions thereof) of
Common Stock that are equal to ten percent (10%) of the number of units
(including fractions thereof) of Common Stock that were credited to the
Participant’s Company Stock Account based on such elective deferrals. Any
credits to this Plan based on limits on contributions under the Company’s 401(k)
plan shall be discontinued effective December 31, 2006.
4.3.
Discretionary
Credits.
From
time to time, the Company, in its sole discretion, may credit the Participant’s
Company Stock Account with the number of units of Common Stock as the
Compensation Committee may determine in its sole discretion.
SECTION
5
ADJUSTMENT
OF ACCOUNTS
5.1.
Establishment
of Accounts
.
There
shall be established for each Participant unfunded, bookkeeping Accounts which
shall be hypothetical in nature. Neither the Plan nor any of the Accounts shall
hold or be required to hold any actual funds or assets.
5.2.
Adjustments
of Accounts
.
From
time to time, but not less frequently than each Valuation Date, the value of
each Account or portion of an Account shall be increased (or decreased) for
distributions, credits (including any earnings, gains or losses thereon) and
any
expenses charged to the Account.
5.3.
Investment
Adjustments
.
The
Committee shall have the sole discretion to designate from time to time the
Measuring Options in which the Deferred Compensation Accounts may be deemed
invested. The Committee shall, in its sole discretion, adopt rules specifying
(i) the circumstances under which a particular Measuring Option may be
elected (or automatically utilized), (ii) the minimum or maximum
percentages which may be allocated to the Measuring Option, (iii) the
procedures (if any) for Participants making or changing elections of Measuring
Options (including when such elections and election changes shall be implemented
after the election is accepted by the Committee), (iv) the extent (if any)
to which beneficiaries of deceased Participants may change Measuring Options,
and (v) the effect of a Participant’s or beneficiary’s failure to make an
effective election with respect to a Measuring Option. Notwithstanding the
foregoing, subsequent to a Change in Control, the Committee shall maintain
the
availability of those Measuring Options in place at the time of the Change
in
Control (or substantially equivalent Measuring Options).
5.4.
Cash
Dividends
.
On each
Common Stock dividend payment date, the Participant’s Company Stock Account
shall be credited with the number of units (including fractions thereof) equal
to the number of shares of Common Stock that could have been purchased with
the
amount the dividends paid by the Company on shares of Common Stock equal to
the
number of units credited to the Participant’s Company Stock Account as of the
record date of such dividend.
5.5.
Stock
Dividends
.
The
number of units credited to a Participant’s Company Stock Account shall be
adjusted to reflect any change in the outstanding Common Stock by reason of
any
stock dividend or split, recapitalization, merger, consolidation, combination
or
exchange of share or similar corporate change.
5.6.
Transfer
Upon Change in Control
.
Effective as of the close of business on the date of a Change in Control, each
Participant’s Deferred Compensation Account shall be credited with an amount
stated in dollars equal to the value of such Participant’s Company Stock Account
based upon the fair market value of Common Stock at the close of business on
such date, and the Participant’s Company Stock Account shall be closed, and the
Participant shall have no further interest in the Company Stock
Account.
SECTION
6
VESTING
The
Account of each Participant shall be fully (100%) vested and nonforfeitable
at
all times. Notwithstanding the foregoing, if the Company determines in its
discretion that a Participant has improperly received a credit under this Plan
for any reason (including, but not limited to, an erroneous calculation or
other
mistake of fact, or on account of a restatement of earnings), the Account shall
be reduced by the amount of the improper credit.
SECTION
7
DISTRIBUTIONS
7.1.
Time
of Distribution.
The
value of the Participant’s Accounts shall be determined as of the last business
day of the month in which the first of the following Distribution Events occurs
and distribution to the Participant (or Beneficiary, if applicable) shall be
made or commenced within sixty (60) days thereafter :
|
(a)
|
Participant’s
sixty-fifth (65th) birthday;
|
|
(b)
|
Participant
Disability;
|
|
(d)
|
Participant’s
Separation from Service; or
|
|
(e)
|
Such
other date, if any, elected and specified by the Participant in accordance
with Section 3;
|
provided,
however, if the Distribution Event is the Participant’s Separation from Service
under (d) above, determination of the value of the Participant’s Account shall
be delayed until the date that is six (6) months following the Participant’s
Separation from Service and distribution shall be made or commenced on the
first
payroll date of the Company thereafter.
If
a
Participant who receives a distribution on account of reaching age sixty-five
(65) (
i.e
.,
under
(a) above) continues employment with the Employer after age sixty-five (65),
any
subsequent distribution to such Participant shall be determined under this
Plan
without further regard to (a) above.
Distribution
under (e) above shall apply only to the portion of the Participant’s Account, if
any, with respect to which the Participant elected the specified distribution
date.
Notwithstanding
the foregoing, the time of any distribution shall be delayed in accordance
with
the rules in Section 3.6 related to subsequent changes in distribution
elections.
7.2.
Form
of Distribution
.
Distribution shall be made to the Participant (or Beneficiary, if applicable)
in
whichever of the following forms as the Participant shall have elected in
accordance with Section 3 with respect to the Account:
|
(b)
|
Annual
installments over a specified number of years not to exceed eleven
(11)
years.
|
7.3.
Installment
Amounts
.
The
amount of the annual installments shall be determined by dividing the value
of
the Account as of the last business day of the month following the Distribution
Event and as of each anniversary of such day by the number of remaining
installment payments to be made (including the payment being determined). If
distribution is delayed under Section 7.1 until the date that is six (6)
months after Separation from Service, the subsequent installments shall be
determined as of each anniversary of such date.
7.4.
Distributions
in Cash or Stock
.
Distributions from the Participant’s Company Stock Account shall be paid in
shares of Common Stock (with any fractional unit being rounded to the next
highest whole unit). Distributions from the Participant’s Deferred Compensation
Account shall be paid in cash.
7.5.
Special
Rules
.
7.5.1.
Unforeseeable
Emergency
.
A
Participant who has not incurred a Distribution Event but who has incurred
an
Unforeseeable Emergency may request a withdrawal from such Participant’s
Account. In the event that the Company, upon written petition of the
Participant, determines in his or her sole discretion that the Participant
has
suffered an Unforeseeable Emergency, the Company shall distribute to the
Participant as soon as reasonably practicable following such determination,
an
amount (not in excess of the value of the Participant’s Account) necessary to
satisfy the emergency. Distribution shall be taken pro-rata from the
Participant’s Deferred Compensation Account and Company Stock Account starting
with the most recent credits to the Accounts. Immediately upon the distribution,
such Participant’s deferral elections shall be cancelled, and further deferrals
shall not be made in accordance with Section 3.5 during that
period.
7.5.2.
Code
§162 Delay.
Notwithstanding anything to the contrary in this Section 7, distribution
shall be delayed when the Employer reasonably anticipates that the Employer’s
federal income tax deduction with respect to such distribution otherwise would
be limited or eliminated by application of section 162(m) of the Code. The
distribution shall thereafter be made at the earliest date at which the Employer
reasonably anticipates that the deduction with respect to such distribution
will
not be limited or eliminated by application of section 162(m) of the
Code.
7.5.3.
No
Parachute Payment
.
If the
Committee determines in its reasonable discretion following consultation with
appropriate tax and/or legal advisors that distribution on account of the
Distribution Event in Section 7.1(d) or (e) would likely constitute a
parachute payment for purposes of section 280G of the Code, distribution on
account of such Distribution Event shall not occur, and distribution shall
occur, thereafter, only on account of the earliest of the Distribution Events
in
Section 7.1(a), (b) or (c); provided, however, that if the Participant is
age 65 or more when such determination is made, age 72 shall be substituted
for
age 65 under Section 7.1(a). If a Distribution Event in Section 7.1(d)
or (e) occurs subsequent to a Change in Control, the Committee shall, at the
Company’s expense, promptly request a written opinion of the “independent
auditor” with respect to the applicability of such section 280G and such
written opinion shall determine if a distribution would likely constitute a
parachute payment. As used in this Section 7.4.3, the term “independent
auditor” means the firm of certified public accountants which at the time of the
Change in Control had been most recently engaged by the Company or such other
comparable and nationally recognized firm of certified public accountants as
may
be selected by the Committee in its reasonable discretion.
7.5.4.
Lump
Sum Distribution to Pay Taxes
.
Notwithstanding anything to the contrary in this Section 7, a lump sum
shall be distributed to the Participant (i) to pay any employment taxes
under FICA that may become due on compensation deferred under this Plan,
(ii) to pay any income tax withholding related to the distribution of
amounts to pay such FICA taxes, and (iii) to pay any amounts required to be
included in the Participant’s income due to failure to comply with the
requirements in section 409A of the Code.
7.5.5.
Small
Amount Lump Sum.
Notwithstanding anything to the contrary in this Section 7, at the time of
distribution, if the value of the Participant’s Accounts is $25,000 or less, the
portion of the Participant’s Accounts attributable to credits on and after
January 1, 2007, shall be distributed in a single lump sum regardless of
the Participant’s elections with respect to such amounts.
7.6.
Designation
of Beneficiaries
.
7.6.1.
Right
to Designate.
Each
Participant may designate, upon form to be furnished by and filed with the
Company, one or more primary Beneficiaries or alternative Beneficiaries to
receive all or a specified part of such Participant’s Account in the event of
such Participant’s death. The Participant may chance or revoke any such
designation from time to time without notice to or consent from any spouse,
Beneficiary or any other person. No such designation, change or revocation
shall
be effective unless executed by the Participant and received by the Company
during the Participant’s lifetime. The Company may establish rules for the use
of electronic signatures.
7.6.2.
Failure
of Designation
.
If a
Participant:
|
(a)
|
fails
to designate a Beneficiary,
|
|
(b)
|
designates
a Beneficiary and thereafter revokes such designation without naming
another Beneficiary, or
|
|
(c)
|
designates
one or more Beneficiaries and all such Beneficiaries so designated
fail to
survive the Participant,
|
such
Participant’s Account, or the part thereof as to which such Participant’s
designation fails, as the case may be, shall be payable to the first class
of
the following classes of automatic Beneficiaries with a member surviving the
Participant and (except in the case of surviving issue) in equal shares if
there
is more than one member in such class surviving the Participant:
Participant’s
surviving spouse
Participant’s
surviving issue per stirpes and not per capita
Participant’s
surviving parents
Participant’s
surviving brothers and sisters
Representative
of Participant’s estate.
7.6.3.
Disclaimers
by Beneficiaries
.
A
Beneficiary entitled to a payment of all or a portion of a deceased
Participant’s Account may disclaim an interest therein subject to the following
requirements. To be eligible to disclaim, a Beneficiary must be a natural
person, must not have received a payment of all or any portion of the Account
at
the time such disclaimer is executed and delivered, and must have attained
at
least age twenty-one (21) years as of the date of the Participant’s death. Any
disclaimer must be in writing and must be executed personally by the Beneficiary
before a notary public. A disclaimer shall state that the Beneficiary’s entire
interest in the unpaid Account is disclaimed or shall specify what portion
thereof is disclaimed. To be effective, an original executed copy of the
disclaimer must be both executed and actually delivered to the Company after
the
date of the Participant’s death but not later than nine (9) months after the
date of the Participant’s death. A disclaimer shall be irrevocable when
delivered to the Company. A disclaimer shall be considered to be delivered
to
the Company only when actually received by the Company. The Company shall be
the
sole judge of the content, interpretation and validity of a purported
disclaimer. Upon the filing of a valid disclaimer, the Beneficiary shall be
considered not to have survived the Participant as to the interest
disclaimed. A disclaimer by a Beneficiary shall not be considered to
be a transfer of an interest in violation of the provisions of
Section 12.12 and shall not be considered to be an assignment or alienation
of benefits in violation of federal law prohibiting the assignment or alienation
of benefits under this Plan. No other form of attempted disclaimer shall be
recognized by the Company.
7.6.4.
Definitions
.
When
used herein and, unless the Participant has otherwise specified in the
Participant’s Beneficiary designation, when used in a Beneficiary designation,
the following definitions and rules shall be applied.
|
(a)
|
“Issue”
means all persons who are lineal descendants of the person whose
issue are
referred to, subject to the
following:
|
|
(i)
|
a
legally adopted child and the adopted child’s lineal descendants always
shall be lineal descendants of each adoptive parent (and of each
adoptive
parent’s lineal ancestors);
|
|
(ii)
|
a
legally adopted child and the adopted child’s lineal descendants never
shall be lineal descendants of any former parent whose parental rights
were terminated by the adoption (or of that former parent’s lineal
ancestors); except that if, after a child’s parent has died, the child is
legally adopted by a stepparent who is the spouse of the child’s surviving
parent, the child and the child’s lineal descendants shall remain lineal
descendants of the deceased parent (and the deceased parent’s lineal
ancestors);
|
|
(iii)
|
if
the person (or a lineal descendant of the person) whose issue are
referred
to is the parent of a child (or is treated as such under applicable
law)
but never received the child into that parent’s home and never openly held
out the child as that parent’s child (unless doing so was precluded solely
by death), then neither the child nor the child’s lineal descendants shall
be issue of the person.
|
|
(b)
|
“Child”
means an issue of the first
generation;
|
|
(c)
|
“Per stirpes”
means in equal shares among living children of the person whose issue
are
referred to and the issue (taken collectively) of each deceased child
of
such person, with such issue taking by right of representation of
such
deceased child; and
|
|
(d)
|
“Survive”
and “surviving” mean living after the death of the
Participant.
|
7.6.5.
Special
Rules
.
Unless
the Participant has otherwise specified in the Participant’s Beneficiary
designation, the following rules shall apply:
|
(a)
|
If
there is not sufficient evidence that a Beneficiary was living at
the time
of the death of the Participant, it shall be deemed that the Beneficiary
was not living at the time of the death of the
Participant.
|
|
(b)
|
The
automatic Beneficiaries specified in Section 7.5.2 and the
Beneficiaries designated by the Participant shall become fixed at
the time
of the Participant’s death so that, if a Beneficiary survives the
Participant but dies before the receipt of all payments due such
Beneficiary hereunder, such remaining payments shall be payable to
the
representative of such Beneficiary’s
estate.
|
|
(c)
|
If
the Participant designates as a Beneficiary the person who is the
Participant’s spouse on the date of the designation, either by name or by
relationship, or both, the dissolution, annulment or other legal
termination of the marriage between the Participant and such person
shall
automatically revoke such designation. The foregoing shall not prevent
the
Participant from designating a former spouse as a Beneficiary on
a form
that is both executed by the Participant and received by the Company
(i) after the date of the legal termination of the marriage between
the Participant and such former spouse and (ii) during the
Participant’s lifetime.
|
|
(d)
|
Any
designation of a nonspouse Beneficiary by name that is accompanied
by a
description of relationship to the Participant shall be given effect
without regard to whether the relationship to the Participant exists
either then or at the Participant’s
death.
|
|
(e)
|
Any
designation of a Beneficiary only by statement of relationship to
the
Participant shall be effective only to designate the person or persons
standing in such relationship to the Participant at the Participant’s
death.
|
|
(f)
|
The
Company shall be the sole judge of the content, interpretation and
validity of a purported Beneficiary
designation.
|
7.7.
No
Spousal Rights
.
No
spouse, former spouse, Beneficiary or other person shall have any rights or
interest in the benefits credited under this Plan including, but not limited
to,
the right to be the sole Beneficiary or to consent to the designation of
Beneficiaries (or the changing of designated Beneficiaries) by the
Participant.
7.8.
Death
Prior to Full Payment
.
If a
Participant who is receiving installment payments dies before installments
are
completed, the remaining installments shall be made to the Beneficiary on the
same dates payments would otherwise have been made to the Participant. If,
at
the death of the Participant, any payment to the Participant was due or
otherwise pending but not actually paid, the amount of such payment shall be
paid to the Beneficiary (and shall not be paid to the Participant’s
estate).
7.9.
Facility
of Payment
.
In case
of the legal disability, including minority, of an individual entitled to
receive any payment under this Plan, payment shall be made, if the Committee
shall be advised of the existence of such condition:
|
(a)
|
to
the duly appointed guardian, conservator or other legal representative
of
such individual, or
|
|
(b)
|
to
a person or institution entrusted with the care or maintenance of
the
incompetent or disabled Participant or Beneficiary, provided such
person
or institution has satisfied the Committee that the payment will
be used
for the best interest and assist in the care of such individual,
and
provided further, that no prior claim for said payment has been made
by a
duly appointed guardian, conservator or other legal representative
of such
individual.
|
Any
payment made in accordance with the foregoing provisions of this section shall
constitute a complete discharge of any liability or obligation of Plan and
the
Company therefore.
SECTION
8
FUNDING
OF PLAN
8.1.
Unfunded
Obligation
.
The
obligation of the Employers to make payments under this Plan constitutes only
the unsecured (but legally enforceable) promise of the Employers to make such
payments. No Participant or Beneficiary shall have any lien, prior claim or
other security interest in any property of the Employers. The Employers may,
but
shall have no obligation to, establish or maintain any fund, trust or account
(other than a bookkeeping account or reserve) for the purpose of funding or
paying the benefits promised under this Plan. If such a fund, trust or account
is established, the property therein shall remain the sole and exclusive
property of the Employer that established it. The Employers shall be obligated
to pay the benefits of this Plan out of their general assets. If, as of the
close of business on the date of a Change in Control, the aggregate value of
the
Participant Accounts exceeds the value of the assets held in a trust that has
been established by an Employer, then within thirty (30) days of such Change
in
Control, such Employer that has established such a trust shall contribute to
such trust assets having a value at least equal to the amount of such
excess.
8.2.
Corporate
Obligation
.
Neither
Company, the Board of Directors of the Company, the Chief Executive Officer,
the
Committee, the Employers nor any of their directors, officers, agents or
employees in any way secure or guarantee the payment of any benefit or amount
which may become due and payable hereunder to or with respect to any
Participant. Each person entitled or claiming to be entitled at any time to
any
benefit hereunder shall look solely to the assets of the Employers for such
payments as unsecured general creditors. If, or to the extent that, Accounts
have been paid to or with respect to a present or former Participant and that
payment purports to be the payment of a benefit hereunder, such former
Participant or other person or persons, as the case may be, shall have no
further right or interest in the other assets of the Employers in connection
with this Plan. No person shall be under any liability or responsibility for
failure to effect any of the objectives or purposes of this Plan by reason
of
the insolvency of the Employers.
SECTION
9
AMENDMENT
AND TERMINATION
9.1.
Amendment
of Plan
.
The
Company reserves the power to alter, amend or wholly revise the Plan at any
time
and from time to time by action of the Board of Directors, and the interest
of
each Participant is subject to the powers so reserved; provided, however, that
no amendment made subsequent to a Change in Control shall be effective to the
extent that it would have a materially adverse impact on a Participant’s
reasonably expected economic benefit attributable to compensation deferred
by
the Participant prior to the Change in Control. An amendment shall be authorized
by the Board of Directors and shall be stated in an instrument in writing signed
in the name of the Company by a person or persons authorized by the Board of
Directors. After the instrument has been so executed, the Plan shall be deemed
to have been amended in the manner therein set forth. No amendment to the Plan
may alter, impair or reduce the benefits credited to any Accounts prior to
the
effective date of such amendment without the written consent of any affected
Participant.
9.2.
Termination
of Plan.
The
Company may terminate the Plan at any time by action of the Board of Directors.
If there is a termination of the Plan with respect to all Participants, the
Company shall have the right, in its sole discretion, and notwithstanding any
elections made by the Participant, to amend the Plan to provide for the
distribution of all Accounts in a lump sum following such Plan termination
to
the extent permissible under Section 409A of the Code and related Treasury
regulations and guidance.
9.3.
No
Oral Amendments
.
No
modification of the terms of the Plan Statement or termination of this Plan
shall be effective unless it is approved by action of the Board of Directors.
No
oral representation concerning the interpretation or effect of the Plan
Statement shall be effective to amend the Plan Statement.
SECTION
10
DETERMINATIONS
— RULES AND REGULATIONS
10.1.
Determinations
.
The
Committee shall make such determinations as may be required from time to time
in
the administration of this Plan. The Committee shall have the discretionary
authority and responsibility to interpret and construe the Plan Statement and
all relevant documents and information, and to determine all factual and legal
questions under this Plan, including but not limited to the entitlement of
Participants and Beneficiaries, and the amounts of their respective
interests.
10.2.
Method
of Executing Instruments
.
Information to be supplied or written notices to be made or consents to be
given
by Company or any other person pursuant to any provision of the Plan Statement
may be signed in the name of Company by any officer or other person who has
been
authorized to make such certification or to give such notices or
consents.
10.3.
Claims
Procedure
.
The
claim and review procedures set forth in this Section shall be the mandatory
claim and review procedures for the resolution of disputes and disposition
of
claims filed under the Plan. An application for a distribution shall be
considered as a claim for the purposes of this Section.
10.3.1.
Initial
Claim and Decision.
An
individual may, subject to any applicable deadline, file with the Committee
a
written claim for benefits under the Plan in a form and manner prescribed by
the
Committee. If the claim is denied in whole or in part, the Committee shall
notify the claimant of the adverse benefit determination within 90 days
after receipt of the claim. The 90 day period for making the claim determination
may be extended for 90 days if the Committee determines that special
circumstances require an extension of time for determination of the claim,
provided that the Committee notifies the claimant, prior to the expiration
of
the initial 90 day period, of the special circumstances requiring an extension
and the date by which a claim determination is expected to be made. The notice
of adverse determination shall provide: (i) the specific reasons for the
adverse determination; (ii) references to the specific provisions of the
Plan Statement (or other applicable Plan document) on which the adverse
determination is based; (iii) a description of any additional material or
information necessary to perfect the claim and an explanation of why such
material or information is necessary; and (iv) a description of the claim
and review procedures, including the time limits applicable to such procedure,
and (v) a statement of the claimant’s right to bring a civil action under
ERISA section 502(a) following an adverse determination on
review.
10.3.2.
Request
for Review and Final Decision
.
Within
60 days after receipt of an initial adverse benefit determination notice, the
claimant may file with the Committee a written request for a review of the
adverse determination and may, in connection therewith submit written comments,
documents, records and other information relating to the claim benefits. Any
request for review of the initial adverse determination not filed within 60
days
after receipt of the initial adverse determination notice shall be untimely.
If
the claim, upon review, is denied in whole or in part, the Committee shall
notify the claimant within 60 days after receipt of the request for a review.
Such 60-day period may be extended for 60 days if the Committee determines
that
special circumstances require an extension and notifies the claimant what
special circumstances require the extension and the date by which the decision
is expected. If the extension is due to the claimant’s failure to submit
information necessary to decide the claim, the claimant shall have 60 days
to
provide the necessary information and the period for making the decision shall
be tolled from the date on which the extension notice is sent until the date
the
claimant responds to the information request or, if earlier, the expiration
of
60 days. The Committee’s review of a denied claim shall take into account all
documents and other information submitted by the claimant, whether or not the
information was submitted before the claim was initially decided. The notice
of
denial upon review shall set forth in a manner calculated to be understood
by
the claimant: (i) the specific reasons for the denial; (ii) references
to the specific provisions of the Plan document on which the denial is based;
(iii) a statement that the claimant is entitled to receive, upon request
and free of charge, reasonable access to and copies of all documents, records,
and other information relevant to the claim; and (iv) a statement of the
claimant’s right to bring a civil action under ERISA
section 502(a).
10.4.
Rules
and Regulations
.
10.4.1.
Adoption
of Rules
.
Any
rule not in conflict or at variance with the provisions hereof may be adopted by
the Company.
10.4.2.
Specific
Rules
.
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(a)
|
Any
decision or determination to be made by the Company shall be made
by the
Committee unless delegated as provided for in the Plan, in which
case
references in this Section 10 to the Committee shall be treated as
references to the Committee’s delegate. No inquiry or question shall be
deemed to be a claim or a request for a review of a denied claim
unless
made in accordance with the established claim procedures. The Committee
may require that any claim for benefits and any request for a review
of a
denied claim be filed on forms to be furnished by the Company upon
request.
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(b)
|
Claimants
may be represented by a lawyer or other representative at their own
expense, but Committee reserves the right to require the claimant
to
furnish written authorization and establish reasonable procedures
for
determining whether an individual has been authorized to act on behalf
of
a claimant. A claimant’s representative shall be entitled to copies of all
notices given to the claimant.
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(c)
|
The
decision on a claim and on a request for a review of a denied claim
may be
provided to the claimant in electronic form instead of in writing
at the
discretion of the Company.
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(d)
|
The
time period within which a benefit determination will be made shall
begin
to run at the time a claim or request for review is filed in accordance
with the claims procedures, without regard to whether all the information
necessary to make a benefit determination accompanies the
filing.
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(e)
|
The
claims and review procedures shall be administered with appropriate
safeguards so that benefit claim determinations are made in accordance
with governing plan documents and, where appropriate, the plan provisions
have been applied consistently with respect to similarly situated
claimants.
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(f)
|
For
the purpose of this Section, a document, record, or other information
shall be considered “relevant” as defined in Labor Reg.
§2560.503-1(m)(8).
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(g)
|
The
Committee may, in its discretion, rely on any applicable statute
of
limitation or deadline as a basis for denial of any
claim.
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10.4.3.
Limitations
and Exhaustion
.
|
(a)
|
No
claim shall be considered under these administrative procedures unless
it
is filed with the Company within one (1) year after the Participant
knew
(or reasonably should have known) of the general nature of the dispute
giving rise to the claim. Every untimely claim shall be denied by
the
Company without regard to the merits of the claim. No suit may be
brought
by or on behalf of any Participant or Beneficiary on any matter pertaining
to this Plan unless the action is commenced in the proper forum before
the
earlier of: (i) three (3) years after the Participant knew (or
reasonably should have known) of the general nature of the dispute
giving
rise to the action, or (ii) sixty (60) days after the Participant has
exhausted these administrative
procedures.
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(b)
|
These
administrative procedures are the exclusive means for resolving any
dispute arising under this Plan. No Participant or Beneficiary shall
be
permitted to litigate any such matter unless a timely claim has been
filed
under these administrative procedures and these administrative procedures
have been exhausted, and determinations under these administrative
procedures (including determinations as to whether the claim was
timely
filed) shall be afforded the maximum deference permitted by
law.
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(c)
|
For
the purpose of applying the deadlines to file a claim or a legal
action,
knowledge of all facts that a Participant knew or reasonably should
have
known shall be imputed to every claimant who is or claims to be a
Beneficiary of the Participant or otherwise claims to derive an
entitlement by reference to the Participant for the purpose of applying
the previously specified periods.
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SECTION
11
PLAN
ADMINISTRATION
11.1.
Authority
.
11.1.1.
Company
.
Functions generally assigned to the Company shall be discharged by the
Committee, except where delegated and allocated as provided herein.
11.1.2.
Committee
.
Except
as hereinafter provided, the Committee may delegate or redelegate and allocate
and reallocate to one or more persons or to a committee of persons jointly
or
severally, and whether or not such persons are directors, officers or employees,
such functions assigned to the Committee or to the Company generally hereunder,
as the Committee may from time to time deem advisable.
11.1.3.
Board
of Directors
.
Notwithstanding the foregoing, the Board of Directors of the Company shall
have
the exclusive authority (which may not be delegated except to the Committee)
to
amend the Plan Statement and to terminate this Plan.
11.2.
Conflict
of Interest
.
If any
individual to whom authority has been delegated or redelegated hereunder shall
also be a Participant in this Plan, such Participant shall have no authority
with respect to any matter specially affecting such Participant’s individual
interest hereunder or the interest of a person superior to him or her in the
organization (as distinguished from the interests of all Participants and
Beneficiaries or a broad class of Participants and Beneficiaries), all such
authority being reserved exclusively to other individuals as the case may be,
to
the exclusion of such Participant, and such Participant shall act only in such
Participant’s individual capacity in connection with any such
matter.
11.3.
ERISA
Administrator
.
The
Company shall be the administrator of this Plan for purposes of
section 3(16)(A) of ERISA.
11.4.
Service
of Process
.
The
Secretary of the Company is designated as the appropriate and exclusive agent
for the receipt of service of process directed to this Plan in any legal
proceeding, including arbitration, involving this Plan.
SECTION
12
CONSTRUCTION
12.1.
ERISA
Status
.
This
Plan is adopted with the understanding that it is an unfunded plan maintained
primarily for the purpose of providing deferred compensation for a select group
of management or highly compensated employees as provided in
section 201(2), section 301(3) and section 401(a)(1) of ERISA.
Each provision shall be interpreted and administered accordingly.
12.2.
IRC
Status
.
This
Plan is intended to be a nonqualified deferred compensation arrangement. The
rules of section 401(a)
et.
seq.
of the
Code shall not apply to this Plan. The rules of section 3121(v) and
section 3306(r)(2) of the Code shall apply to this Plan. The rules of
section 409A of the Code shall apply to this Plan to the extent applicable
and this Plan Statement shall be construed and administered accordingly. The
Company has affirmatively determined that all amounts deferred under the Plan
that were earned and vested before January 1, 2005 (
i.e.
,
amounts
specified in Section 1.1.1), shall not be subject to 409A of the Code and
this Plan Statement shall be construed accordingly. Notwithstanding the
foregoing, neither the Company nor any of its officers, directors, agents or
affiliates shall be obligated, directly or indirectly, to any Participant or
any
other person for any taxes, penalties, interest or like amounts that may be
imposed on the Participant or other person on account of any amounts under
this
Plan or on account of any failure to comply with any Code section.
12.3.
Effect
on Other Plans
.
This
Plan shall not alter, enlarge or diminish any person’s employment rights or
obligations or rights or obligations under any other qualified or nonqualified
plan. It is specifically contemplated that this Plan will, from time to time,
be
amended and possibly terminated.
12.4.
Disqualification
.
Notwithstanding any other provision of the Plan Statement or any election or
designation made under this Plan, any individual who feloniously and
intentionally kills a Participant shall be deemed for all purposes of this
Plan
and all elections and designations made under this Plan to have died before
such
Participant. A final judgment of conviction of felonious and intentional killing
is conclusive for this purpose. In the absence of a conviction of felonious
and
intentional killing, the Company shall determine whether the killing was
felonious and intentional for this purpose.
12.5.
Rules
of Document Construction
.
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(a)
|
An
individual shall be considered to have attained a given age on such
individual’s birthday for that age (and not on the day before).
Individuals born on February 29 in a leap year shall be considered to
have their birthdays on February 28 in each year that is not a leap
year.
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(b)
|
Whenever
appropriate, words used herein in the singular may be read in the
plural,
or words used herein in the plural may be read in the singular; the
masculine may include the feminine; and the words “hereof,” “herein” or
“hereunder” or other similar compounds of the word “here” shall mean and
refer to the entire Plan Statement and not to any particular paragraph
or
Section of the Plan Statement unless the context clearly indicates
to the
contrary.
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(c)
|
The
titles given to the various Sections of the Plan Statement are inserted
for convenience of reference only and are not part of the Plan Statement,
and they shall not be considered in determining the purpose, meaning
or
intent of any provision hereof.
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(d)
|
Notwithstanding
any thing apparently to the contrary contained in the Plan Statement,
the
Plan Statement shall be construed and administered to prevent the
duplication of benefits provided under this Plan and any other qualified
or nonqualified plan maintained in whole or in part by the
Employers.
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12.6.
References
to Laws
.
Any
reference in the Plan Statement to a statute or regulation shall be considered
also to mean and refer to any subsequent amendment or replacement of that
statute or regulation unless, under the circumstances, it would be inappropriate
to do so. The terms “spouse,” “nonspouse,” “married,” “surviving spouse,” and
other similar terms shall be construed, interpreted and applied on a basis
consistent with the federal statute known as the Defense of Marriage
Act.
12.7.
Choice
of Law
.
Except
to the extent that federal law is controlling, this Plan Statement be construed
and enforced in accordance with the laws of the State of Minnesota.
12.8.
Delegation
.
No
person shall be liable for an act or omission of another person with regard
to a
responsibility that has been allocated to or delegated to such other person
pursuant to the terms of the Plan Statement or pursuant to procedures set forth
in the Plan Statement.
12.9.
Not
an Employment Contract
.
This
Plan is not and shall not be deemed to constitute a contract of employment
between any Employer and any employee or other person, nor shall anything herein
contained be deemed to give any employee or other person any right to be
retained in any Employer’s employ or in any way limit or restrict any Employer’s
right or power to discharge any employee or other person at any time and to
treat him without regard to the effect which such treatment might have upon
him
as a Participant in this Plan.
12.10.
Tax
Withholding
.
The
Employers (or any other person legally obligated to do so) shall withhold the
amount of any federal, state or local income tax, payroll tax or other tax
required to be withheld under applicable law with respect to any amount payable
under this Plan. All benefits otherwise due hereunder shall be reduced by the
amount to be withheld.
12.11.
Expenses
.
All
expenses of administering the benefits due under this Plan shall be borne by
the
Employers.
12.12.
Spendthrift
Provision
.
No
Participant or Beneficiary shall have any interest in any Account which can
be
transferred nor shall any Participant or Beneficiary have any power to
anticipate, alienate, dispose of, pledge or encumber the same while in the
possession or control of the Employers. The Company shall not recognize any
such
effort to convey any interest under this Plan. No benefit payable under this
Plan shall be subject to attachment, garnishment, execution following judgment,
or other legal process before actual payment to such person.
The
power
to designate Beneficiaries to receive the Account of a Participant in the event
of such Participant’s death shall not permit or be construed to permit such
power or right to be exercised by the Participant so as thereby to anticipate,
pledge, mortgage or encumber such Participant’s Account or any part thereof, and
any attempt of a Participant so to exercise said power in violation of this
provision shall be of no force and effect and shall be disregarded by the
Employers.
This
section shall not prevent the Company from exercising, in its discretion, any
of
the applicable powers and options granted to it upon a Distribution Event,
as
such powers may be conferred upon it by any applicable provision
hereof.
Dated:
October 23, 2006
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H.B.
Fuller Company
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By:
/s/
Albert P.L.
Stroucken
|
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Its:
Chief Executive Officer
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APPENDIX
A
(TRANSITIONAL
RULES FOR 2005 AND 2006 CREDITS)
Amounts
credited under the H.B. Fuller Company Key Employee Deferred Compensation Plan
which relate all or in part to services performed on or after January 1,
2005, but before January 1, 2007, shall be governed by the terms of the
Prior Plan Statement (attached to the Plan Statement as Appendix B) subject
to the exceptions specified in Section 1.1.2 of the Plan and to the
transitional rules set forth in this Appendix A. The rules set forth in
this Appendix A are intended to comply with section 409A of the
Code.
A.1.
Eligibility
and Participation.
For
purposes of Section 3.1 of the Prior Plan Statement, an employee shall
become a Participant in the Plan on the date the employee is determined eligible
by the Committee.
A.2.
Elections
to Defer Compensation
.
Deferral elections shall apply only to Eligible Compensation for services
performed during the calendar year beginning after a Participant’s election is
filed and, to the extent the Eligible Compensation is included in the first
paycheck of the next calendar year, for services performed in the current year.
Deferral elections with respect to STIP Awards and PUP Awards shall be made
prior to the calendar year in which the performance period on which the award
is
based ends but in no event less than six (6) months before the performance
period ends. Deferral elections for purposes of this transitional rule shall
include the election of a form of distribution and the election, if any, of
a
specified date under Section 6.1(g) of the Prior Plan
Statement.
A.3.
Distribution
Events
.
A.3.1.
For
purposes of Section 6.1(b) of the Prior Plan Statement, Disability has the
meaning set forth in Section 1.2.9 of the Plan Statement.
A.3.2.
For
purposes of Section 6.1(d) of the Prior Plan Statement, the first date on
which the Participant is no longer an employee of any Participating Employer
shall be the date on which the Participant has had a Separation from Service
as
defined in Section 1.2.20 of the Plan Statement.
A.3.3.
Section 6.1(e)
(distribution upon Plan termination) shall be deleted and have no
effect.
A.3.4.
Section 6.1(f)
(distribution upon termination for cause) shall be deleted and have no
effect.
A.3.5.
Section 6.2(e)
(Code §162(m) delay) shall be replaced by the rule in Section 7.5.2 of the
Plan Statement.
A.3.6.
Section 6.3
(early withdrawal with 10% forfeiture) shall be deleted and have no
effect.
A.3.7.
Section 6.4
(lump sum distribution to pay taxes) shall be replaced by the rule in
Section 7.5.4 of the Plan Statement.
A.3.8.
Section 6.5
(parachute payment) shall be replaced by the rules in Section 7.5.3 of the
Plan Statement.
A.3.9.
Section 6.6
(delay of distribution upon termination for cause) shall be deleted and have
no
effect.
A.4.
Subsequent
Election Changes
.
The
third and fourth sentences in Section 6.2(c) of the Prior Plan Statement
related to changing an election of form of payment shall be replaced completely
by the rules in Section 3.6 of the Plan Statement. Any change in an
election of a specified date for distribution under Section 6.1(g) of the
Prior Plan Statement shall be governed under the rules in Section 3.6 of
the Plan Statement.
A.5.
Reduction
in Payment Period
.
The
sixth sentence in Section 6.2(c) in the Prior Plan Statement related to
discretionary reduction in the period over which installment payments would
have
been made shall be deleted and have no effect.
A.6.
Plan
Termination.
The
rules in Section 14.1 of the Prior Plan Statement concerning Plan
termination shall be replaced by the rules concerning Plan termination in
Section 9.2 of the Plan Statement.
APPENDIX
B
(RULES
FOR PRE-2005 DEFERRALS - “PRIOR PLAN STATEMENT”)
H.B.
FULLER COMPANY
KEY
EMPLOYEE DEFERRED COMPENSATION PLAN
H.B.
Fuller Company, a Minnesota corporation, hereby establishes the H.B. Fuller
Company Key Employee Deferred Compensation Plan, effective as of October
14,
1999, in order to provide deferred compensation to certain key employees
of H.B.
Fuller Company. The purpose of the H.B. Fuller Key Employee Deferred
Compensation Plan is to assist H.B. Fuller Company in retaining key employees,
encouraging their long term commitment to the company’s success, and attracting
key employees by offering them an opportunity to defer compensation and
participate in the success of H.B. Fuller Company, and allowing them to share
in
increases in the value of H.B. Fuller Company.
ARTICLE
I
DEFINITIONS
Section
1.1 -
Definitions
.
When
used in this document with initial capital letters, the following terms have
the
meanings indicated unless a different meaning is plainly required by the
context:
(a)
“
Account
”
or
“
Accounts
”
means
the account or accounts established and maintained for a Participant pursuant
to
Article IV of the Plan. A Participant’s Accounts shall consist of the
Participant’s Deferred Compensation Account, the Participant’s Company Stock
Account and the Participant’s Company Matching Stock Account.
(b)
“
Allocation
Request Form
”
means
such form or forms as may be approved by the Company from time to time for
use
by a Participant to request: (i) an allocation of certain deferred
compensation and/or an allocation or reallocation of a Participant’s Deferred
Compensation Account among available investment options pursuant to
Section 7.2(c), and (ii) that certain deferred compensation be
allocated to the Participant’s Company Stock Account pursuant to
Section 7.1.
(c)
“
Board
of Directors
”
means
the Board of Directors of H.B. Fuller Company.
(d)
“
Change
in Control
”
means:
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(i)
|
a
change in the control of the Company of a nature that would be
required to
be reported in accordance with Regulation 14A promulgated under the
Securities Exchange Act of 1934 (the “Exchange Act”), whether or not the
Company is then subject to such reporting
requirement;
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(ii)
|
a
public announcement (which, for purposes hereof, shall include,
without
limitation, a report filed pursuant to section 13(d) of the Exchange
Act) that any individual, corporation, partnership, association,
trust or
other entity becomes the beneficial owner (as defined in
Rule 13(d)(3) promulgated under the Exchange Act), directly or
indirectly, of securities of the Company representing 15% or more
of the
Voting Power of the Company then
outstanding;
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(iii)
|
the
individuals who, as of the date of this Plan, are members of the
Board of
Directors of the Company (the “Incumbent Board”) cease for any reason to
constitute at least a majority of the Board (provided, however,
that if
the election or nomination for election by the Company’s shareholders of
any new director was approved by a vote of at least a majority
of the
Incumbent Board, such new director shall be considered to be a
member of
the Incumbent Board);
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(iv)
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the
approval of the shareholders of the Company of (A) any consolidation,
merger or statutory share exchange of the Company with any person
in which
the surviving entity would not have as its directors at least 60%
of the
Incumbent Board and as a result of which those persons who were
shareholders of the Company immediately prior to such transaction
would
not hold, immediately after such transaction, at least 60% of the
Voting
Power of the Company then outstanding or the combined voting power
of the
surviving entity’s then outstanding voting securities; (B) any sale,
lease, exchange or other transfer in one transaction or series
of related
transactions substantially all of the assets of the Company; or
(C) the
adoption of any plan or proposal for the complete or partial liquidation
or dissolution of the Company; or
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(v)
|
a
determination by a majority of the members of the Incumbent Board,
in
their sole and absolute discretion, that there has been a Change
in
Control of the Company.
|
For
purposes of this definition, “Voting Power” when used with reference to the
Company shall mean the voting power of all classes and series of capital
stock
of the Company now or hereafter authorized other than the voting power of
any of
the shares of Series A Preferred Stock outstanding as of the date of this
Plan.
(e)
“
Code
”
means
the Internal Revenue Code of 1986, as amended.
(f)
“
Common
Stock
”
means
the Common Stock, par value $1.00 per share, of H.B. Fuller Company as such
stock may be reclassified, converted or exchanged by reorganization, merger
or
otherwise.
(g)
“
Company
”
means
the H.B. Fuller Company, a Minnesota corporation.
(h)
“
Company
Matching Stock Account
”
means
the Account established and maintained for a Participant as a record of the
matching units measured by the value of Company Common Stock credited to
an
Account for the Participant.
(i)
“
Company
Stock Account
”
means
the Account established and maintained for a Participant as a record of the
Participant’s hypothetical investments in units of Company Common
Stock.
(j)
“
Compensation
Committee
”
means
the Compensation Committee of the Board of Directors or such other person
or
persons as may be designated by the Board of Directors to act on behalf of
the
Board of Directors in the administration of the Plan.
(k)
“
Deferral
Election Form
”
means
such form or forms as may be approved by the Compensation Committee from
time to
time for use by a Participant to elect to defer compensation under the
Plan.
(l)
“
Deferred
Compensation Account
”
means
the Account established and maintained for a Participant as a record of the
amounts deferred by the Participant under the Plan and the Participant’s
hypothetical investments in available investment options.
(m)
“
Disability
”
means
the total and permanent disability of a Participant which entitles the
Participant to a disability benefit under a disability program sponsored
or
maintained by the Participant’s Participating Employer; provided, that if no
such program is applicable to the Participant, then “Disability” with respect to
such Participant means that, based on medical evidence reasonably satisfactory
to the Compensation Committee, the Participant is totally and permanently
unable
to engage in any occupation or gainful employment for which the Participant
is
reasonably suited by background, training, education or experience.
(n)
“
Discretionary
Amounts
”
means
the units measured by the value of Company Common Stock credited to a
Participant’s Account pursuant to Section 4.4.
(o)
“
Distributable
Event
”
means
an event identified as such in Section 6.1.
(p)
“
Eligible
Compensation
”
|
|
(i)
|
The
“Eligible Compensation” of a Participant for any period means, except as
provided in the succeeding paragraphs of this subsection, the sum
of all
remuneration paid to the Participant during such period for service
as an
employee of a Participating Employer as base salary and wages,
overtime
pay, shift differential premium, commissions, cash bonuses (other
than
vacation bonuses), sick pay and short-term disability benefits,
increased
by the amount of pre-tax contributions made on behalf of the Participant
by a Participating Employer pursuant to the terms of the H.B. Fuller
Company Thrift Plan for that period and by the net amount of compensation
reductions experienced by the Participant during such period under
any
cafeteria plan described in section 125 of the Code maintained by the
Participating Employer. Eligible Compensation will not include
amounts
deferred or paid under an agreement between the Participating Employer
and
the Participant that is not a plan qualified under section 401(a) of
the Code except this Plan, any matching contributions made pursuant
to the
provisions of the H.B. Fuller Company Thrift Plan, contributions
made or
benefits (other than short-term disability benefits) paid by the
Participating Employer under any other employee benefit plan, expatriate
premiums or amounts realized by the Participant upon the exercise
of a
nonqualified stock option, the lapse of restrictions applicable
to
restricted stock or any disposition of stock acquired under a qualified
or
incentive stock option.
|
|
|
(ii)
|
A
Participant’s Eligible Compensation for any year shall be determined
without regard to section 401(a)(17) of the
Code.
|
|
|
(iii)
|
Notwithstanding
the provisions of paragraph (i) above, a Participant’s Eligible
Compensation will not include:
|
|
|
|
(A)
|
any
remuneration not paid in cash;
|
|
|
|
(B)
|
the
value of life insurance coverage included in the Participant’s wages under
section 79 of the Code;
|
|
|
|
(C)
|
any
car allowance or moving expense or mileage
reimbursement;
|
|
|
|
(E)
|
payments
under any plan of deferred compensation except this Plan;
|
|
|
|
(F)
|
any
benefit under any qualified or nonqualified stock option or stock
purchase
plan; or
|
|
|
|
(G)
|
any
awards under the Short-Term Incentive Plan or the Performance Unit
Plan.
|
(q)
“
ERISA
”
means
the Employee Retirement Income Security Act of 1974, as amended.
(r)
“
Participant
”
means
an individual identified as such under Article III of the
Plan.
(s)
“
Participating
Employer
”
means
any employer participating in the Plan pursuant to Article II of the
Plan.
(t)
“
Performance
Unit Plan
”
means
the H.B. Fuller Company Performance Unit Plan, as amended.
(u)
“
Plan
”
means
the H.B. Fuller Company Key Employee Deferred Compensation Plan, as of its
original effective date, including any amendments thereto, which is unfunded
and
maintained by H.B. Fuller Company and its affiliated companies primarily
for the
purpose of providing deferred compensation for a select group of management
or
highly compensated employees of H.B. Fuller Company.
(v)
“
Short-Term
Incentive Plan
”
means
the H.B. Fuller Company Short-Term Incentive Plan providing annual cash
incentive opportunities.
(w)
“
Trust
”
means
the Trust or Trusts described in Section 12.4. Any such Trust shall
constitute an unfunded arrangement and shall not affect the status of the
Plan
as an unfunded plan. Participants and their beneficiaries shall have no
beneficial ownership interest in any assets of any such Trust.
(x)
“
Trustee
”
means
the corporation or person or persons selected by the Company to serve as
Trustee
for a Trust or Trusts.
(y)
“
Vested
”
means
an interest in the benefit described under the Plan which may be payable
to or
on behalf of the Participant in accordance with the terms of the
Plan.
ARTICLE
II
PARTICIPATING
EMPLOYERS
Section
2.1 -
Eligibility
.
To
be
eligible to adopt and participate in the Plan, an employer must be a member
of
the “controlled group” of corporations, which shall be based upon section 414 of
the Code except that the phrase “at least 50 percent” shall be substituted for
the phrase “at least 80 percent” each place it appears in sections 414 and
1563(a), that includes the Company.
Section
2.2 -
Participation
Requirements
.
The
Company, the sponsor of the Plan, and any other affiliated company that is
or
becomes eligible to adopt the Plan and become a Participating Employer pursuant
to Section 2.1 of the Plan may adopt the Plan and become a Participating
Employer in the Plan provided that such affiliated company declares in writing
to be subject to the terms and conditions of the Plan and files such declaration
with the Compensation Committee. The date on which such eligible company
may
become a Participating Employer in the Plan shall be the date such declaration
is filed with the Compensation Committee or such later date specified in
the
declaration. Each of the Participating Employers agrees to make payments
of
their allocable portion of the benefits provided under the Plan to their
respective Participants. The respective benefit payment obligations of the
Participating Employers are not secured in any way. Such obligations constitute
no more than unfunded and unsecured promises of payment and performance.
Each
Participating Employer shall be responsible for, and shall have the obligation
of, its allocable share of costs and expenses incurred with respect to the
operation and administration of the Plan, and shall be responsible for, and
have
the obligation of, the payment of any benefits payable under the Plan with
respect to any employees of such Participating Employer who are Participants
in
the Plan and eligible to receive benefits under the terms of the
Plan.
Section
2.3 -
Recordkeeping
and Reporting
.
Each
Participating Employer shall maintain records sufficient to determine the
benefits (and the compensation sources of such benefits) which may become
payable to or with respect to any employee of such Participating Employer
who is
a Participant in the Plan and to provide such Participants any reports which
may
be required under the terms of the Plan or by law.
Section
2.4 -
Termination
of Participation
.
A
Participating Employer, other than the Company, may withdraw from participation
in the Plan at any time by providing the Company with 30 days advance written
notice of such withdrawal from participation and the effective date of such
Participating Employer’s withdrawal, which 30-day notice period may be waived by
the Company. In addition, the Company may terminate a Participating Employer’s
participation in the Plan by providing such Participating Employer with 30
days
advance written notice, which 30-day notice period may be waived by the
Participating Employer. A Participating Employer which terminates its
participation in the Plan shall remain obligated under the Plan with respect
to
deferrals made prior to such termination by its Participants (including
subsequent investment performance adjustments), unless otherwise expressly
agreed by the Company with the Company fully assuming such
obligations.
Section
2.5 -
Separate
Accounting
.
The
Company shall establish and maintain separate Accounts for each of the
Participating Employers and their respective Participants. Such separate
accounting is intended to comply with section 404(a)(5) of the Code and
section 1.404(a)-12 of the Treasury Regulations (which provide that an
employer can deduct the amounts contributed to a nonqualified plan in the
taxable year in which an amount attributable to the contribution is includable
in the gross income of employees participating in the plan, but, in the case
of
a plan in which more than one employee participates only if separate accounts
are maintained for each employee).
ARTICLE
III
ELIGIBILITY
AND PARTICIPATION
Section
3.1 -
Eligibility
.
Each
executive or key level employee of a Participating Employer who is paid at
the
pay grade of at least thirty-two (32) shall be eligible to participate in
the
Plan effective as of the later of the effective date of the Plan or the date
on
which such individual first achieves the pay grade of at least thirty-two
(32);
provided, however, that the Compensation Committee shall determine pay grade
status and determine eligibility to participate in the Plan with respect
to each
such executive and key level employee. In addition, the Compensation Committee
may by express action designate other management level or highly compensated
employees of the Participating Employers as eligible to participate in the
Plan.
If the Compensation Committee designates a management level or highly
compensated employee of a Participating Employer as eligible to become a
Participant in the Plan, the Compensation Committee shall inform the employee
in
writing of such designation and the date on which the employee shall become
a
Participant in the Plan.
Section
3.2 -
Participation
.
An
individual eligible to participate in the Plan shall become a Participant
upon
the filing with the Compensation Committee of a completed Deferral Election
Form
and acceptance of such form by the Compensation Committee. The name of each
individual eligible to participate in the Plan and the date on which such
individual becomes a Participant in the Plan shall be recorded on Exhibit
A,
which exhibit is attached hereto and incorporated herein by reference and
which
shall be revised by the Compensation Committee from time to time to reflect
the
operation of the Plan. Once an individual becomes a Participant in the Plan,
the
individual shall remain a Participant until the benefits which may be payable
to
the individual under the Plan have been distributed to or on behalf of the
individual.
Section
3.3 -
Suspension
of Eligibility
.
The
Compensation Committee may in its discretion determine that a Participant
will
no longer be eligible to participate in the Plan and in such event, the
Participant’s compensation deferral election made in accordance with
Article IV will immediately terminate and no additional amounts shall be
credited to his or her Accounts under Sections 7.1(a), (b), (c) and 7.2(a)
until
such time as the individual is again determined to be eligible to participate
in
the Plan by the Compensation Committee and makes a new election under
Article IV. However, the Accounts of such Participant shall continue to be
adjusted by the other provisions of Sections 7.1 and 7.2 until fully
distributed.
ARTICLE
IV
BENEFITS
Section
4.1 -
Deferred
Compensation
.
A
Participant may elect to defer receipt of part or all of any one or more
of the
following items of compensation:
|
(a)
|
Eligible
Compensation;
|
|
(b)
|
Short-Term
Incentive Plan awards; and
|
|
(c)
|
Performance
Unit Plan awards.
|
A
Participant may defer an item of compensation only to the extent that the
Participant is entitled to receive such item of compensation. Upon such
deferral, the Participant will have no further right to such deferred
compensation other than as provided under the Plan. Such deferred compensation
shall be the record of the value of such deferred compensation credited to
a
Participant’s Account and shall be used solely for accounting
purposes.
Section
4.2 -
Form
and Effectiveness of Deferral Elections
.
(a)
Each
year
a Participant may elect to defer up to 25%, or in special circumstances such
greater percentage as determined by the Compensation Committee based upon
whether the compensation paid to the Participant would be fully deductible
for
federal or state income tax purposes under Code section 162(m), of his or
her Eligible Compensation for the following calendar year. The Participant
is
required to file his or her deferral election before December 31 specifying
the
portion of the Eligible Compensation to be earned in the succeeding calendar
year that is to be deferred. For the first year of operation of the Plan,
any
deferral election must be made prior to January 1, 2000, the beginning of
the
period of service for which the compensation is payable.
(b)
An
election by a Participant to defer a portion of his or her Eligible Compensation
pursuant to subsection (a) must be made by the Participant for the calendar
year beginning after the calendar year in which occurs the date of said election
and the amounts so deferred shall be paid only as provided in this Plan.
Such an
election must be irrevocable and must be made in the form and manner prescribed
by the Compensation Committee and shall not be effective unless accepted
by the
Compensation Committee. The Participant may change the amount of, or suspend,
future deferrals with respect to Eligible Compensation otherwise payable
to him
or her for calendar years beginning after the date of change or suspension
as he
or she may specify by written notice to the Compensation Committee. If a
Participant elects to change the amount of, or suspend, deferrals, the
Participant may make a new deferral election provided that any new election
to
defer payment of Eligible Compensation must be made before the beginning
of the
period of service for which the Eligible Compensation is payable, which period
is the calendar year. The election to defer shall be irrevocable as to the
deferred Eligible Compensation for the period for which the election is made
and
shall not be effective unless accepted by the Compensation
Committee.
(c)
In
addition to amounts deferred by a Participant pursuant to subsections (a)
and
(b), each year a Participant may elect to defer all or a portion of any
Short-Term Incentive Plan award and all or a portion of any Performance Unit
Plan award that would otherwise be payable to the Participant under those
plans.
An election by a Participant to defer any award that would otherwise be payable
under either the Short-Term Incentive Plan or the Performance Unit Plan must
be
made before the first day of the calendar year in which occurs the end of
the
fiscal year of the Participant’s Participating Employer for which such award is
determined. Such a deferral election is irrevocable and must be made in the
form
and manner prescribed by the Compensation Committee and shall not be effective
unless accepted by the Compensation Committee. The period of deferral and
form
of distribution of an award shall be determined in accordance with the elections
made under this subsection (c) and in accordance with the provisions of
this Plan.
(d)
Notwithstanding
any provision herein to the contrary, if the Participant is eligible to
participate in the H.B. Fuller Company Thrift Plan, the amount deferred by
such
Participant under this Section 4.2 of the Plan for any year shall be conditioned
upon the Participant having made the maximum elective deferrals under
section 402(g) of the Code or permitted under the terms of the H.B. Fuller
Company Thrift Plan. If the Participant is eligible to participate in the
H.B.
Fuller Company Thrift Plan, to be eligible to make deferrals under the Plan
for
any calendar year, such Participant must have elected to make the maximum
elective deferrals under section 402(g) of the Code or permitted under the
terms of the H.B. Fuller Company Thrift Plan. The calculation of whether
the
Participant has made the required maximum contribution under the H.B. Fuller
Company Thrift Plan will be made as of the beginning of the calendar year
to
which deferrals under the Plan are applicable. Once that determination has
been
made, the Participant may make deferrals under the Plan. No elective
contribution or qualified employer matching contribution made with respect
to
the H.B. Fuller Company Thrift Plan will be deferred or contributed to the
Plan
or a Trust.
Section
4.3 -
Matching
Amounts
.
If for
any year a Participant who is a participant in the H.B. Fuller Company Thrift
Plan makes an election under Section 4.2 to defer Eligible Compensation or
any Short-Term Incentive Plan award or any Performance Unit Plan award pursuant
to the provisions of Section 4.2, that Participant’s Participating Employer
will credit the Participant’s Company Matching Stock Account with matching units
which shall be measured by the value of Company Common Stock and which will
be
calculated for the year as follows:
(a)
three
percent (3%) of such Participant’s Eligible Compensation for the portion of the
year during which the Participant had deferred Eligible Compensation credited
to
his or her Account under the terms of the Plan, and such Participant’s
Short-Term Incentive Plan award and Performance Unit Plan award determined
for
the year;
(b)
the
amount determined in subsection (a) of this Section 4.3 shall be reduced
by the
amount of the employer matching contribution actually made by the Participant’s
Participating Employer to the H.B. Fuller Company Thrift Plan on behalf of
the
Participant.
Section
4.4 -
Discretionary
Amounts
.
In
addition to amounts deferred by a Participant under Section 4.2 and the
matching amounts determined under Section 4.3, a Participating Employer may
from time to time, in its sole discretion, credit a Participant’s Company Stock
Account with additional amounts (denominated in units which shall be measured
by
the value of Company Common Stock). Such additional amounts shall be authorized
for such purpose or purposes as the Participating Employer may deem appropriate,
including, without limitation, as mirror employer matching contributions
or
contributions made by the Participating Employer with respect to the H.B.
Fuller
Company Thrift Plan.
Section
4.5 -
Participant
Accounts
.
A
Company Stock Account, a Deferred Compensation Account and a Company Matching
Stock Account shall be established and maintained for each Participant. The
Company Stock Account and the Company Matching Stock Account shall be credited
with units which shall be measured by the value of the shares of Common Stock.
The Deferred Compensation Account shall be credited with amounts which shall
be
measured in dollars. The Company Stock Account shall be credited as described
in
Section 7.1 for deferred amounts attributable to (a) awards under the
Short-Term Incentive Plan, and the Performance Unit Plan as may be allocated
to
the Company Stock Account pursuant to Section 7.1, (b) Discretionary
Amounts, and (c) such amounts of Eligible Compensation as may be allocated
to
the Company Stock Account pursuant to Section 7.1. The Company Matching
Stock Account shall be credited as described in Section 7.1(c) for deferred
amounts attributable to (a) the matching amounts determined under
Section 4.3, and (b) the matching amounts determined under
Section 7.1. The Deferred Compensation Account shall be credited as
described in Section 7.2 for any deferred amounts attributable to
(a) such amounts of Eligible Compensation as may be allocated to the
Deferred Compensation Account pursuant to Section 7.2, and (b) Short-Term
Incentive Plan awards and Performance Unit Plan awards as may be allocated
to
the Deferred Compensation Account pursuant to Section 7.2.
ARTICLE
V
VESTING
Section
5.1 -
Vested
Benefit
.
A
Participant shall be considered to be 100% Vested in the units and amounts
credited to his or her Accounts under the Plan.
Section
5.2 -
Limitation
on Benefits
.
The
benefits that may be payable to or on behalf of a Participant under the Plan
shall not exceed a cash payment equal to the value of the amounts credited
to
the Participant’s Deferred Compensation Account and a distribution of that
number of shares of Common Stock equal to the number of units credited to
the
Participant’s Company Stock Account (with any fractional unit being rounded to
the next highest whole unit) and the Participant’s Company Matching Stock
Account (with any fractional unit being rounded to the next highest whole
unit).
ARTICLE
VI
DISTRIBUTIONS
Section
6.1 -
Distributable
Events
.
A
Participant’s Distributable Event shall be the first to occur of the following
events:
|
(a)
|
The
Participant’s sixty-fifth (65th)
birthday;
|
|
(b)
|
Disability
(as defined in
Section 1.1(m));
|
|
(c)
|
The
Participant’s death;
|
|
(d)
|
The
first date on which the Participant is no longer an employee of
any
Participating Employer;
|
|
(e)
|
The
effective date of the termination of the Plan pursuant to
Section 14.1;
|
|
(f)
|
Termination
for cause subject to and in accordance with Section 6.6;
or
|
|
(g)
|
Such
other date as elected and specified by the Participant in the Distribution
of Benefits Form, which election is subject to approval by the
Compensation Committee and which shall be made only at the time
of the
Participant’s initial elections on such form and if the election is
approved, it shall be irrevocable.
|
Section
6.2 -
Distribution
of Benefits
.
(a)
Distribution
Commencement Date
.
Except
any withdrawals made pursuant to Section 6.3 which shall be distributed in
accordance with that section, distribution of a Participant’s Plan benefit shall
commence as of the first day of the second calendar month immediately following
the calendar month in which the Participant’s applicable Distributable Event
occurs.
(b)
Form
of Distribution
.
Benefits attributable to the value of the Deferred Compensation Account shall
be
delivered to the Participant in dollars. Benefits attributable to the Company
Stock Account and the Company Matching Stock Account shall be delivered to
the
Participant in the form of shares of Common Stock subject to the approval
of the
Plan by the shareholders during the annual meeting of shareholders in April
2000. To the extent that the distribution is in the form of shares of Common
Stock, such delivery shall be subject to all federal or state securities
laws or
other rules and regulations as determined by the Company to be
applicable.
(c)
Payment
Options
.
In the
event a Participant becomes eligible to receive a payment of benefits under
the
Plan, the benefits payable to the Participant or, in the event of the
Participant’s death, to the Participant’s designated beneficiary under the Plan
shall be paid in accordance with one of the payment options available under
the
Plan as elected by the Participant on the Participant’s Deferral Election Form.
The Participant may elect separate payment options with respect to the Deferred
Compensation Account, the Company Stock Account and the Company Matching
Stock
Account. A Participant may change payment options by electing another payment
option available under the Plan on a subsequent Deferral Election Form, but
such
change in payment option will not be effective until the lapse of a period
of
twelve (12) months following the date on which the Deferral Election Form
was
accepted by the Compensation Committee. Further, in no event will any such
change in payment option be effective if such change is elected during the
calendar year in which the Distributable Event occurs and no further elections
may be made once a Distributable Event occurs. The payment options include
installment payments over a period certain, a lump sum payment, and such
other
payment method as may be specified by the Participant and accepted by the
Compensation Committee. The Compensation Committee may, in its sole discretion,
reduce the payment period over which payments would have been made pursuant
to
the payment option elected by the Participant (including consolidation into
a
lump sum); provided, that in the event of a Change in Control, no reduction
of a
payment period may be made prior to the fifth anniversary of such Change
in
Control. Absent a payment option election, the Compensation Committee shall
direct the payment of any benefits payable under the Plan to or on behalf
of the
Participant in eleven (11) substantially equal annual installment payments
to
the Participant, or in the event of the Participant’s death, to the
Participant’s designated beneficiary under the Plan.
(d)
Application
for Distribution
.
A
Participant shall not be required to make application to receive payment.
Distribution shall not be made to any beneficiary, however, until such
beneficiary shall have filed a written application for benefits in a form
acceptable to the Compensation Committee and such application shall have
been
approved by the Compensation Committee.
(e)
Code
Section 162(m) Delay
.
If the
Compensation Committee determines that delaying the time of the initial payments
are made or commenced would increase the probability that such payments would
be
fully deductible for federal or state income tax purposes, the Company may
unilaterally delay the time of the making or commencement of payments for
up to
twenty-four (24) months after the date such payments would otherwise be
payable.
Section
6.3 -
Early
Withdrawals
.
Notwithstanding any provision in this Plan to the contrary, a Participant
may
request, by providing a written request to the Compensation Committee, a
withdrawal prior to the distribution date under the Plan of all or any portion
of his or her benefits from any of his or her Accounts under the Plan in
increments of 25% (of aggregate Account value). If such a request is approved
by
the Compensation Committee, which decision by the Compensation Committee
shall
be made in its sole discretion on a case by case basis, a distribution of
such
benefits may be made to the Participant subject to a penalty for such an
early
withdrawal at any point equal to a six-month period of nonparticipation (during
which no additional amounts will be credited to the Participant’s Accounts under
Sections 7.1(a), (b), (c) and 7.2(a) of the Plan) for each 25% increment
withdrawn. The nonparticipation period would begin as of the date on which
the
request made by the Participant is approved by the Compensation Committee.
As a
result, a Participant withdrawing his or her entire benefit from all of his
or
her Accounts would be excluded from eligibility to participate in the Plan
for a
24-month period beginning as of the date of such approval by the Compensation
Committee. In addition, a penalty of 10% of the amount withdrawn will be
imposed
on any withdrawal made pursuant to this Section 6.3.
Section
6.4 -
Distributions
As a Result of Tax Determination
.
Notwithstanding
any provision in this Plan to the contrary, if, at any time, a court or the
Internal Revenue Service determines that any amounts or units credited to
a
Participant’s Accounts under the Plan or Trust are includable in the gross
income of the Participant and subject to tax, the Compensation Committee
may, in
its sole discretion, permit a lump sum distribution of an amount equal to
the
amounts or units determined to be includable in the Participant’s gross
income.
Section
6.5 -
No
Parachute Payment
.
An
event
described in Sections 6.1(d), (e), and (g) shall not constitute a Distributable
Event if the Compensation Committee in its reasonable discretion following
consultation with appropriate tax and/or legal advisors reasonably determines
that such distribution will likely constitute a parachute payment for purposes
of section 280G of the Code. Furthermore, if such event occurs subsequent
to a Change in Control, the Compensation Committee shall, at the Company’s
expense, promptly request a written opinion of the “independent auditor” with
respect to the applicability of such section 280G and such event shall not
constitute a Distributable Event unless and until the independent auditor
delivers its written unqualified opinion, a copy of which shall be provided
to
the Participant, to the effect that a distribution of benefits as a result
of
such event will not constitute a parachute payment under section 280G of
the Code. As used in this Section 6.5, the term “independent auditor” means
the firm of certified public accountants which at the time of the Change
in
Control had been most recently engaged by the Company or such other comparable
and nationally recognized firm of certified public accountants as may be
selected by the Compensation Committee in its reasonable
discretion.
Section
6.6 -
Distribution
Upon Termination For Cause
.
In
the
event that a Participant is terminated for “cause” (as defined below), the
Company may, in its discretion, treat such termination or any date subsequent
thereto as a Distributable Event. For purposes of this Plan, termination
for
“cause” means termination based on any of the following:
(a)
The
willful and continued failure by the Participant to substantially perform
the
Participant’s duties with a Participating Employer (other than any such failure
resulting from the Participant’s incapacity due to physical or mental illness)
after a written demand for substantial performance is delivered to the
Participant specifically identifying the manner in which the Participant
has not
substantially performed the Participant’s duties;
(b)
The
engaging by the Participant in willful misconduct which is demonstrably
injurious to any one or more of the Participating Employers monetarily or
otherwise; or
(c)
The
conviction of the Participant of a felony.
ARTICLE
VII
VALUATION
OF BENEFITS
Section
7.1 -
Company
Stock Account and Company Matching Stock Account
.
(a)
Deferred
Amounts
.
If a
Participant elects to defer compensation in accordance with Section 4.2,
the Participant may make an irrevocable election pursuant to this Section
7.1(a)
to have a portion or all of such deferred compensation allocated to the Company
Stock Account and measured by the value of Company Common Stock. This
irrevocable election must be made at the time the deferral elections are
made
under Section 4.2 in the form and manner prescribed by the Compensation
Committee, and will not be effective unless accepted by the Compensation
Committee. If the Participant makes an election pursuant to this Section
7.1(a)
to have a portion or all of such deferred compensation allocated to the Company
Stock Account and measured by the value of Common Stock, the Participant’s
Company Stock Account shall be credited with the number of units (including
fractions thereof) equal to the number of shares (including fractions thereof)
of Common Stock that could have been purchased with the dollar amount of
such
deferred compensation determined as of the last business day of the month,
based
on the last sale price as reported on the Nasdaq National Market on such
date,
in which such compensation would have otherwise been paid to the Participant.
Each unit credited to the Company Stock Account shall be measured by the
value
of one share of Common Stock and treated as though invested in a share of
Common
Stock. Subject to subsection (f) of this Section 7.1, the liability of
a Participating Employer under the Plan with respect to the units credited
to
the Company Stock Account shall be satisfied only in shares of Company Common
Stock, subject to the approval of the Plan by the shareholders during the
annual
meeting of shareholders in April 2000.
(b)
Discretionary
Amount
.
When a
Participant’s Company Stock Account is to be credited for a Discretionary
Amount, it shall be credited with that number of units (including fractions
thereof) of Common Stock equal to the number of such shares (including fractions
thereof) that could have been purchased with the dollar amount of the
Discretionary Amount based upon the value of such shares as of the last business
day of the month during which such Discretionary Amount is determined by
the
Participating Employer.
(c)
Company
Matching Stock Account
.
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(i)
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When
a Participant’s Company Matching Stock Account is to be credited with
matching units pursuant to Section 4.3, said Account shall be
credited with that number of units (including fractions thereof)
equal to
the number of shares (including fractions thereof) of Common Stock
that
could have been purchased with the dollar amount of such deferred
compensation determined as of the last business day of the month,
based on
the last sale price as reported on the Nasdaq National Market on
such
date, in which such compensation would have otherwise been paid
to the
Participant.
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(ii)
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In
addition to the matching units credited to the Company Matching
Stock
Account under paragraph (i) above, if a Participant makes an election
under Section 7.1(a) to have deferred compensation allocated to the
Company Stock Account and measured by the value of Company Common
Stock,
the Participant’s Participating Employer shall credit the Participant’s
Company Matching Stock Account with that number of units (including
fractions thereof) that shall be equal to ten percent (10%) of
the number
of units (including fractions thereof) that were credited to the
Participant’s Company Stock Account under Section 7.1(a) determined
as of the last business day of the month, based on the last sale
price as
reported on the Nasdaq National Market on such date, in which such
compensation would have otherwise been paid to the
Participant.
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(iii)
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Each
unit credited to the Company Matching Stock Account shall be measured
by
the value of one share of Common Stock and treated as though invested
in a
share of Common Stock. Subject to subsection (f) of this
Section 7.1, the liability of a Participating Employer under the Plan
with respect to the units credited to the Company Matching Stock
Account
shall be satisfied only in shares of Company Common Stock, subject
to the
approval of the Plan by the shareholders during the annual meeting
of
shareholders in April 2000.
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(d)
Dividends
.
A
Participant’s Company Stock Account and the Participant’s Company Matching Stock
Account shall be credited on each Common Stock dividend payment date with
that
number of units equal to the number of shares which would have been acquired
based upon the dividends paid by the Company on shares of Common Stock equal
to
the number of units credited to the Company Stock Account and the Company
Matching Stock Account, respectively, as of the record date for such
dividend.
(e)
Stock
Dividends
.
The
number of units credited to the Company Stock Account and the Company Matching
Stock Account shall be adjusted to reflect any change in the outstanding
Common
Stock by reason of any stock dividend or split, recapitalization, merger,
consolidation, combination or exchange of shares or other similar corporate
change.
(f)
Transfer
Upon Change in Control
.
In the
event of a Change in Control, effective as of the close of business on the
date
of the Change in Control, each Participant’s Deferred Compensation Account shall
be credited with an amount measured in dollars equal to the value of such
Participant’s Company Stock Account and the Participant’s Company Matching Stock
Account based upon the fair market value of the Company Common Stock on such
date and the Participant’s Company Stock Account and the Participant’s Company
Matching Stock Account shall be closed and the Participant shall have no
further
interest in the said Accounts.
Section
7.2 -
Deferred
Compensation Account
.
(a)
Deferred
Amounts
.
When a
Participant’s Deferred Compensation Account is to be credited with a deferred
amount, that amount measured in dollars equal to such deferred amount shall
be
credited to the Deferred Compensation Account as of the close of business
on the
date that such amount would have otherwise been paid to the
Participant.
(b)
Interest
.
Subject
to Section 7.2(c), as of the close of the last day of each calendar
quarter, an additional amount shall be credited to each Participant’s Deferred
Compensation Account equal to the product of (i) the average daily balance
in
such Deferred Compensation Account for the quarter, multiplied by (ii)
one-fourth of the annual prime rate for corporate borrowers quoted at the
beginning of the quarter by the
Wall
Street Journal
(or such
other comparable interest rate as the Compensation Committee may designate
from
time to time).
(c)
Investment
Options
.
The
Compensation Committee may permit a Participant to allocate the Participant’s
Deferred Compensation Account among one or more investment options for purposes
of measuring the value of the benefit. To the extent that the Deferred
Compensation Account is allocated to an investment option, it shall not be
credited with interest under Section 7.2(b). That portion of the Deferred
Compensation Account allocated to an investment option shall be deemed to
be
invested in such investment option and shall be valued as if so invested,
reflecting all earnings, losses and other distributions or charges and changes
in value which would have been incurred through such an investment. The
determination of which investment options, if any to make available, and
the
continued availability of selected investment options rests in the Compensation
Committee’s sole discretion; provided, that subsequent to a Change in Control,
the Compensation Committee shall maintain the availability of those investment
options in place at the time of the Change in Control (or substantially
equivalent investment options).
(d)
Participant
Allocation Request
.
A
Participant’s request to allocate or reallocate among investment options must be
in writing on an Allocation Request Form in such increments as the Compensation
Committee may require. All such requests are subject to acceptance by the
Compensation Committee at its discretion. If accepted by the Compensation
Committee, an allocation request will be effective as of the close of business
on the allocation date (as defined in Section 7.4).
Section
7.3 -
Hypothetical
Accounts
.
The
Accounts established under this Plan shall be hypothetical in nature and
shall
be maintained for bookkeeping purposes only. Neither the Plan nor any of
the
Accounts (or sub-accounts) shall hold or be required to hold any actual funds
or
assets.
Section
7.4 -
Allocation
Date
.
Upon
acceptance of an allocation request pursuant to Section 7.2, the
Compensation Committee will process the request as soon as reasonably
administratively practicable and the request shall be implemented and reflected
in the Participant’s Account as of the close of business on such date as may be
determined by the Compensation Committee in its reasonable discretion (the
“allocation date”).
ARTICLE
VIII
NONTRANSFERABILITY
Section
8.1
Anti-Alienation
of Benefits
.
Any
benefits which may be credited to a Participant’s Accounts under the Plan, and
any rights or privileges pertaining thereto, may not be anticipated, alienated,
sold, transferred, assigned, pledged, encumbered, or subjected to any charge
or
legal process; and no interest or right to receive a benefit may be taken,
either voluntarily or involuntarily, for the satisfaction of the debts of,
or
other obligations or claims against, such person or entity, including claims
for
alimony, support, separate maintenance and claims in bankruptcy
proceedings.
Section
8.2 -
Incompetent
Participants
.
If any
person who may be eligible to receive a payment under the Plan has been legally
declared incompetent and a conservator or other person legally charged with
the
care of such person or of his or her estate has been appointed, any payment
under the Plan to which the person is eligible to receive shall be paid to
such
conservator or other person legally charged with the care of the person or
his
or her estate. Any such payment shall be a payment for the account of such
person and a complete discharge of any liability of the Participating Employers
and the Plan therefore.
Section
8.3 -
Designated
Beneficiary
.
In the
event of a Participant’s death prior to the payment of all or a portion of any
benefits which may be payable with respect to the Participant under the Plan,
the payment of any benefits payable on behalf of the Participant under the
Plan
shall be made to the Participant’s beneficiary designated on a “Beneficiary
Designation Form,” which form shall be approved by the Compensation Committee.
If no such beneficiary has been designated, payment shall be made as required
under the Participant’s will; or, in the event that there shall be no
functioning will under applicable state law, then to such persons as, at
the
date of the Participant’s death, would be entitled to share in the distribution
of such deceased Participant’s personal estate under the provisions of the
applicable statute then in force governing the decedent’s intestate property, in
the proportions specified in such statute.
ARTICLE
IX
WITHHOLDING
Section
9.1 -
Withholding
.
The
amounts payable pursuant to the Plan may be reduced by the amount of any
federal, state or local taxes required by law to be withheld with respect
to
such payments.
ARTICLE
X
VOTING
Section
10.1 -
Voting
of Company Stock
.
No
Participant shall be entitled to any voting rights with respect to any units
credited to his or her Company Stock Account or his or her Company Matching
Stock Account.
ARTICLE
XI
ADMINISTRATION
OF THE PLAN
Section
11.1 -
Administrator
.
The
administrator of the Plan shall be the Company. However, the Compensation
Committee shall act on behalf of the Company with respect to the administration
of the Plan and may delegate authority with respect to the administration
of the
Plan to such other committee, person or persons as it deems necessary or
appropriate for the administration and operation of the Plan.
Section
11.2 -
Authority
of Administrator
.
The
Company shall have the authority, duty and power to interpret and construe
the
provisions of the Plan as it deems appropriate, to adopt, establish and revise
rules, procedures and regulations relating to the Plan, to determine the
conditions subject to which any benefits may be payable, to resolve all
questions concerning the status and rights of the Participants and others
under
the Plan, including, but not limited to, eligibility for benefits and to
make
any other determinations which it believes necessary or advisable for the
administration of the Plan. The Company shall have the duty and responsibility
of maintaining records, making the requisite calculations and disbursing
payments hereunder. The determinations, interpretations, regulations and
calculations of the Company shall be final and binding on all persons and
parties concerned. The Secretary of the Company shall be the agent of the
Plan
for the service of legal process in accordance with section 502 of
ERISA.
Section
11.3 -
Operation
of Plan and Claims Procedures
.
The
Company shall be responsible for the general operation and administration
of the
Plan and for carrying out the provisions thereof. The Company shall be
responsible for the expenses incurred in the administration of the Plan.
The
Company shall also be responsible for determining eligibility for payments
and
the amounts payable pursuant to the Plan. The Company shall be entitled to
rely
conclusively upon all tables, valuations, certificates, opinions and reports
furnished by any actuary, accountant, controller, counsel or other person
employed or engaged by the Company with respect to the Plan. The procedures
for
filing claims for payments under the Plan are described below. For claims
procedures purposes, the “Claims Manager” shall be the Company.
(a)
Claims
Forms
.
It is
the intent of the Company to make payments under the Plan without the
Participant having to complete or submit any claims forms. However, a
Participant who believes he or she is entitled to a payment under the Plan
may
submit a claim for payments in writing to the Company. Any claim for payments
under the Plan must be made by the Participant or his or her beneficiary
in
writing and state the claimant’s name and the nature of benefits payable under
the Plan on a form acceptable to the Company. If for any reason a claim for
payments under the Plan is denied by the Company, the Claims Manager shall
deliver to the claimant a written explanation setting forth the specific
reasons
for the denial, specific references to the pertinent provisions of the Plan
on
which the denial is based, 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 information on the
procedures to be followed by the claimant in obtaining a review of his or
her
claim, all written in a manner calculated to be understood by the claimant.
For
this purpose:
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(i)
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The
claimant’s claim shall be deemed to be filed when presented orally or in
writing to the Claims Manager.
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(ii)
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The
Claims Manager’s explanation shall be in writing delivered to the claimant
within 90 days of the date the claim is
filed.
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(b)
Review
.
The
claimant shall have 60 days following his or her receipt of the denial of
the
claim to file with the Claims Manager a written request for review of the
denial. For such review, the claimant or the claimant’s representative may
review pertinent documents and submit written issues and comments.
(c)
Decision
on Review
.
The
Claims Manager shall decide the issue on review and furnish the claimant
with a
copy within 60 days of receipt of the claimant’s request for review of the
claimant’s claim. The decision on review shall be in writing and shall include
specific reasons for the decision, written in a manner calculated to be
understood by the claimant, as well as specific references to the pertinent
provisions in the Plan on which the decision is based. If a copy of the decision
is not so furnished to the claimant within such 60 days, the claim shall
be
deemed denied on review. In no event may a claimant commence legal action
for
benefits the claimant believes are due the claimant until the claimant has
exhausted all of the remedies and procedures afforded the claimant by this
Section 11.3.
(d)
Deadline
to File Claim
.
To be
considered timely under the Plan’s claim and review procedure, a claim must be
filed with the Company within one (1) year after the claimant knew or reasonably
should have known of the principal facts upon which the claim is
based.
(e)
Exhaustion
of Administrative Remedies
.
The
exhaustion of the claim and review procedure is mandatory for resolving every
claim and dispute arising under this Plan. As to such claims and
disputes:
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(i)
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no
claimant shall be permitted to commence any legal action to recover
Plan
benefits or to enforce or clarify rights under the Plan under
section 502 or section 510 of ERISA or under any other provision
of law, whether or not statutory, until the claim and review procedure
set
forth herein have been exhausted in their entirety;
and
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(ii)
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in
any such legal action all explicit and all implicit determinations
by the
Company (including, but not limited to, determinations as to whether
the
claim, or a request for a review of a denied claim, was timely
filed)
shall be afforded the maximum deference permitted by
law.
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(f)
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Deadline
to File Legal Action
.
No legal action to recover Plan benefits or to enforce or clarify
rights
under the Plan under section 502 or section 510 of ERISA or
under any other provision of law, whether or not statutory, may
be brought
by any claimant on any matter pertaining to this Plan unless the
legal
action is commenced in the proper forum before the earlier
of:
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(i)
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thirty
(30) months after the claimant knew or reasonably should have known
of the
principal facts on which the claim is based, or
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(ii)
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six
(6) months after the claimant has exhausted the claim and review
procedure.
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(g)
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Knowledge
of Facts by Participant Imputed to Beneficiary
.
Knowledge of all facts that a Participant knew or reasonably should
have
known shall be imputed to every claimant who is or claims to be
a
beneficiary of the Participant or otherwise claims to derive an
entitlement by reference to the Participant for the purpose of
applying
the previously specified periods.
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Section
11.4 -
Participant’s
Address
.
Each
Participant shall keep the Company informed of his or her current address
and
the current address of his or her beneficiary. The Company shall not be
obligated to search for any person. If the location of a Participant is not
made
known to the Company within three (3) years after the date on which payment
of
the Participant’s benefits payable under the Plan may be made, payment may be
made as though the Participant had died at the end of the three-year period.
If,
within one (1) additional year after such three-year period has elapsed,
or,
within three (3) years after the actual death of a Participant, the Company
is
unable to locate any designated beneficiary of the Participant, then neither
the
Company nor any other Participating Employer shall have any further obligation
to pay any benefit under the Plan to or on behalf of such Participant or
designated beneficiary and such benefit shall be irrevocably
forfeited.
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
Section
12.1 -
No
Employment Rights
.
Neither
the Plan nor any action taken under the Plan shall be construed as providing
any
Participant any right to be retained in the service or employ of any
Participating Employer.
Section
12.2 -
Participants
Should Consult Advisors
.
Neither
any Participating Employer, nor their respective directors, officers, employees
or agents makes any representation or warranty with respect to the federal,
state or other tax, financial, estate planning, or the securities or other
legal
implications of participation in the Plan. Participants should consult with
their own tax, financial and legal advisors with respect to their participation
in the Plan.
Section
12.3 -
Unfunded
and Unsecured
.
The
Plan shall at all times be considered entirely unfunded both for tax purposes
and for purposes of Title I of the Employee Retirement Income Security Act
of
1974, as amended, and no provision shall at any time be made with respect
to
segregating assets of any Participating Employer for payment of any amounts
under the Plan. Any funds invested under the Plan allocable to a Participating
Employer shall continue for all purposes to be part of the respective general
assets of such Participating Employer and available to the general creditors
of
such Participating Employer in the event of a bankruptcy (involvement in
a
pending proceeding under the Federal Bankruptcy Code) or insolvency (inability
to pay debts as they mature) of such Participating Employer. The Company
shall
promptly notify the Trustee and the applicable Participants of such bankruptcy
or insolvency of a Participating Employer. No Participant or any other person
shall have any interests in any particular assets of any Participating Employer
by reason of the right to receive a benefit under the Plan and to the extent
the
Participant or any other person acquires a right to receive benefits under
the
Plan, such right shall be no greater than the right of any general unsecured
creditor of any Participating Employer. The Plan constitutes a mere promise
by
the Participating Employers to make payments to the Participants in the future.
Nothing contained in the Plan shall constitute a guaranty by any Participating
Employer or any other person or entity that any funds in any trust or the
assets
of any Participating Employer will be sufficient to pay any benefit under
the
Plan. Furthermore, no Participant shall have any right to a benefit under
the
Plan except in accordance with the terms of the Plan.
Section
12.4 -
The
Trust
.
(a)
Establishment
of Trust
.
In
order to provide assets from which to fulfill the obligations to the
Participants and their beneficiaries under the Plan, each Participating Employer
may establish a Trust by a trust agreement with a third party, the Trustee,
to
which such Participating Employer may, in its discretion, contribute cash
or
other property, including securities issued by the Company or such other
Participating Employer, to provide for the benefit payments under the Plan.
The
Trustee for each Trust will have the duty to invest the Trust assets and
funds
in accordance with the terms of such Trust. Each Participating Employer shall
be
entitled at any time, and from time to time, in its sole discretion, to
substitute assets of at least equal fair market value for any assets held
in
such Trust established by such Participating Employer. All rights associated
with the assets of each such Trust will be exercised by the Trustee of the
Trust
or the person designated by such Trustee, and will in no event be exercisable
by
or rest with Participants or their beneficiaries. Each such Trust shall provide
that in the event of the insolvency of the Participating Employer that
established such Trust, the Trustee shall hold the assets for the benefit
of the
general creditors of that Participating Employer. Each such Trust shall be
based
on the model trust contained in Internal Revenue Service Revenue Procedure
92-64.
(b)
Contribution
Upon Change in Control
.
If as
of the close of business on the date of a Change in Control, the aggregate
value
of the Participant Accounts exceeds the value of the assets held in a Trust
established under subsection (a), then within thirty (30) days of such Change
in
Control, each Participating Employer that has established such a Trust shall
contribute to such Trust assets having a value at least equal to the amount
of
such excess.
Section
12.5 -
Plan
Provisions
.
Except
when otherwise required by the context, any singular terminology shall include
the plural.
Section
12.6 -
Severability
.
If a
provision of the Plan shall be held to be illegal or invalid, the illegality
or
invalidity shall not affect the remaining parts of the Plan and the Plan
shall
be construed and enforced as if the illegal or invalid provision had not
been
included.
Section
12.7 -
Applicable
Law
.
To the
extent not preempted by the laws of the United States, the laws of the State
of
Minnesota shall apply with respect to the Plan.
Section
12.8 -
Stock
Subject to Plan
.
Subject
to and in accordance with the terms of the Plan, the maximum number of shares
of
Common Stock that shall be made available for purposes of satisfying the
obligations of the Participating Employers under the Plan is 100,000 shares,
subject to adjustment by reason of any stock dividend or split,
recapitalization, merger, consolidation, combination or exchange of shares
or
other similar corporate change.
ARTICLE
XIII
AMENDMENTS
Section
13.1 -
Amendment
of the Plan
.
The
Company reserves the power to alter, amend or wholly revise the Plan at any
time
and from time to time by the action of the Board of Directors and the interest
of each Participant is subject to the powers so reserved; provided, however,
that no amendment made subsequent to a Change in Control shall be effective
to
the extent that it would have a materially adverse impact on a Participant’s
reasonably expected economic benefit attributable to compensation deferred
by
the Participant prior to the Change in Control. An amendment shall be authorized
by the Board of Directors and shall be stated in an instrument in writing
signed
in the name of the Company by a person or persons authorized by the Board
of
Directors. After the instrument has been so executed, the Plan shall be deemed
to have been amended in the manner therein set forth, and all parties interested
herein shall be bound thereby. No amendment to the Plan may alter, impair,
or
reduce the benefits credited to any Accounts prior to the effective date
of such
amendment without the written consent of any affected Participant.
ARTICLE
XIV
TERM
OF PLAN
Section
14.1 -
Term
of the Plan
.
The
Company may at any time terminate the Plan by action of the Board of Directors
with such termination being effective as of the date that all Participant
Accounts have been distributed to Participants in accordance with and subject
to
the provisions of Article VI of the Plan including, without limitation,
Section 6.5 of the Plan. Effective as of the date of such Board of
Directors action (or such later date as may be specified therein) all
Section 4.1 compensation deferral elections will terminate and no further
amounts shall be credited to any Accounts of any Participant under Sections
7.1(a), (b), (c) and 7.2(a) after such date. However, the Participants’ Accounts
shall continue to be adjusted by the other provisions of Sections 7.1 and
7.2 until all benefits are distributed to the Participants or to the
Participants’ beneficiaries.
Dated
as
of this 14th day of October 1999.
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H.B.
FULLER COMPANY
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By:
/s/ Albert P.L.
Stroucken
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Title:
Chief Executive
Officer
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EXHIBIT
A
H.B.
FULLER COMPANY
KEY
EMPLOYEE DEFERRED COMPENSATION PLAN PARTICIPANTS
Name
of Individuals Eligible to Participate
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Date
of Participation Eligibility
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Date
of Participation
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H.B.
FULLER COMPANY
KEY
EMPLOYEE DEFERRED COMPENSATION PLAN
Declaration
of Amendment
Pursuant
to Section 13.1 of the H.B. Fuller Company Key Employee Deferred
Compensation Plan, the Company amends the Plan as follows:
1.
Section 4.3(a)
is amended to reflect a matching percentage of 4% as opposed to 3%.
2.
Sections 7.1
(a),(b), and (c) (i) and (ii) is amended in their entirety, to read as
follows:
(a)
Deferred
Amounts
. If a Participant elects to defer compensation in accordance with
Section 4.2, the Participant may make an irrevocable election pursuant to
this Section 7.1(a) to have a portion or all of such deferred compensation
allocated to the Company Stock Account and measured by the value of Company
Common Stock. This irrevocable election must be made at the time the deferral
elections are made under Section 4.2 in the form and manner prescribed by
the Compensation Committee, and will not be effective unless accepted by
the
Compensation Committee. If the Participant makes an election pursuant to
this
Section 7.1(a) to have a portion or all of such deferred compensation
allocated to the Company Stock Account and measured by the value of Common
Stock, the Participant’s Company Stock Account shall be credited with the number
of units (including fractions thereof) equal to the number of shares (including
fractions thereof) of Common Stock that could have been purchased with the
dollar amount of such deferred compensation determined as of the payroll
deferral transaction date, based on the last sale price as reported on the
Nasdaq National Market on such date, in which such compensation would have
otherwise been paid to the Participant. Each unit credited to the Company
Stock
Account shall be measured by the value of one share of Common Stock and treated
as though invested in a share of Common Stock. Subject to subsection (f) of
this Section 7.1, the liability of a Participating Employer under the Plan
with respect to the units credited to the Company Stock Account shall be
satisfied only in shares of Company Common Stock, subject to the approval
of the
Plan by the shareholders during the annual meeting of shareholders in April
2000.
(b)
Discretionary
Amount
.
When a
Participant’s Company Stock Account is to be credited for a Discretionary
Amount, it shall be credited with that number of units (including fractions
thereof) of Common Stock equal to the number of such shares (including fractions
thereof) that could have been purchased with the dollar amount of the
Discretionary Amount based upon the value of such shares as of the payroll
deferral transaction date during which such Discretionary Amount is determined
by the Participating Employer.
(c)
Company
Matching Stock Account
.
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(i)
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When
a Participant’s Company Matching Stock Account is to be credited with
matching units pursuant to Section 4.3, said Account shall be
credited with that number of units (including fractions thereof)
equal to
the number of shares (including fractions thereof) of Common Stock
that
could have been purchased with the dollar amount of such deferred
compensation determined as of the payroll deferral transaction
date, based
on the last sale price as reported on the Nasdaq National Market
on such
date, in which such compensation would have otherwise been paid
to the
Participant.
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(ii)
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In
addition to the matching units credited to the Company Matching
Stock
Account under paragraph (i) above, if a Participant makes an election
under Section 7.1(a) to have deferred compensation allocated to the
Company Stock Account and measured by the value of Company Common
Stock,
the Participant’s Participating Employer shall credit the Participant’s
Company Matching Stock Account with that number of units (including
fractions thereof) that shall be equal to ten percent (10%) of
the number
of units (including fractions thereof) that were credited to the
Participant’s Company Stock Account under Section 7.1(a) determined
as of the payroll deferral transaction date, based on the last
sale price
as reported on the Nasdaq National Market on such date, in which
such
compensation would have otherwise been paid to the
Participant.
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3.
Section 7.2(b)
is amended in its entirety, to read as follows:
“(b)
Interest
.
Subject
to Section 7.2 (c) as of the close of each business day, each Participant’s
Deferred Compensation Account shall be valued by calculating the product
of
(i) the daily balance in such Deferred Compensation Account, multiplied by
(ii) one-twelfth (1/12) of the annual prime rate for corporate borrowers
quoted at the beginning of the month by the Wall Street Journal (or such
other
comparable interest rate as the Compensation Committee may designate from
time
to time).”
This
Declaration of Amendment, shall be effective as of October 14, 1999, as if
originally included in the Plan.
IN
WITNESS WHEREOF
,
the
Company has caused this instrument to be executed by its duly authorized
officer
this 2nd day of December 1999.
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H.B.
FULLER COMPANY
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/s/
Albert P.L. Stroucken
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Chief
Executive Officer
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H.B.
FULLER COMPANY
DEFINED
CONTRIBUTION RESTORATION PLAN
(Effective
January 1, 2007)
H.B.
FULLER COMPANY
DEFINED
CONTRIBUTION RESTORATION PLAN
(Effective
January 1, 2007)
TABLE
OF CONTENTS
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Page
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SECTION
1.
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INTRODUCTION
AND DEFINITIONS
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1
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1.1.
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Introduction
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1.2.
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Definitions
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1.2.1.
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Account
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1.2.2.
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Affiliate
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1.2.3.
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Base
Plan
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1.2.4.
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Beneficiary
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1.2.5.
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Change
in Control
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1.2.6.
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Code
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1.2.7.
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Committee
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1.2.8.
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Company
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1.2.9.
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Disability
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1.2.10.
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Effective
Date
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1.2.11.
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Eligible
Compensation
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1.2.12.
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Employers
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1.2.13.
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ERISA
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1.2.14.
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Measuring
Options
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1.2.15.
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Participant
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1.2.16.
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Plan
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1.2.17.
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Plan
Statement
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1.2.18.
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Plan
Year
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1.2.19.
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Separation
from Service
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1.2.20.
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Unforeseeable
Emergency
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SECTION
2.
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PARTICIPATION
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5
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2.1.
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General
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2.2.
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Suspension
of Eligibility
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SECTION
3.
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CREDITS
TO ACCOUNTS
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6
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3.1.
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Amount
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3.2.
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Eligible
Participants
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SECTION
5.
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ADJUSTMENT
OF ACCOUNTS
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7
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4.1.
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Establishment
of Accounts
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4.2.
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Adjustments
of Accounts
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4.3.
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Investment
Adjustments
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SECTION
5.
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VESTING
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8
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SECTION
6.
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DISTRIBUTIONS
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9
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6.1.
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Time
of Distribution
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6.2.
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Form
of Distribution
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6.3.
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Distributions
in Cash
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6.4.
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Special
Rules
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6.4.1.
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Unforeseeable
Emergency
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6.4.2.
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Code
§162 Delay
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6.4.3.
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No
Parachute Payment
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6.4.4.
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Lump
Sum Distribution to Pay Taxes
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6.5.
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Designation
of Beneficiaries
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6.5.1.
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Right
to Designate
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6.5.2.
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Failure
of Designation
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6.5.3.
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Disclaimers
by Beneficiaries
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6.5.4.
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Definitions
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6.5.5.
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Special
Rules
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6.6.
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No
Spousal Rights
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6.7.
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Death
Prior to Full Payment
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6.8.
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Facility
of Payment
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SECTION
7.
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FUNDING
OF PLAN
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14
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7.1.
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Unfunded
Obligation
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7.2.
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Corporate
Obligation
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SECTION
8.
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AMENDMENT
AND TERMINATION
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15
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8.1.
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Amendment
of Plan
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8.2.
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Termination
of Plan
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8.3.
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No
Oral Amendments
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SECTION
9.
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DETERMINATIONS
— RULES AND REGULATIONS
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16
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9.1.
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Determinations
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9.2.
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Method
of Executing Instruments
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9.3.
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Claims
Procedure
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9.3.1.
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Initial
Claim and Decision
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9.3.2.
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Request
for Review and Final Decision
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9.4.
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Rules
and Regulations
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9.4.1.
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Adoption
of Rules
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9.4.2.
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Specific
Rules
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9.4.3.
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Limitations
and Exhaustion
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SECTION
10.
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PLAN
ADMINISTRATION
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20
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10.1.
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Authority
|
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10.1.1.
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Company
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10.1.2.
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Committee
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10.1.3.
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Board
of Directors
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10.2.
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Conflict
of Interest
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10.3.
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ERISA
Administrator
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10.4.
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Service
of Process
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SECTION
11.
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CONSTRUCTION
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21
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11.1.
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ERISA
Status
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11.2.
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IRC
Status
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11.3.
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Effect
on Other Plans
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11.4.
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Disqualification
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11.5.
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Rules
of Document Construction
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11.6.
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References
to Laws
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11.7.
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Choice
of Law
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11.8.
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Delegation
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11.9.
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Not
an Employment Contract
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11.10.
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Tax
Withholding
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11.11.
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Expenses
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11.12.
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Spendthrift
Provision
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H.B.
FULLER COMPANY
DEFINED
CONTRIBUTION RESTORATION PLAN
(Effective
January 1, 2007)
SECTION
1
INTRODUCTION
AND DEFINITIONS
1.1.
Introduction
.
Effective January 1, 2007, H.B. Fuller Company (“H.B. Fuller”) hereby
establishes a nonqualified, unfunded, nonelective deferred compensation plan
entitled “H.B. Fuller Company Defined Contribution Restoration Plan” (the
“Plan”) for the purpose of providing a select group of management or highly
compensated employees of H.B. Fuller and certain affiliated corporations
(“Employers” or “Employer” as applicable) with retirement benefits that cannot
be provided under the tax-qualified H.B. Fuller Company Thrift Plan and EFTEC
Savings Plan on account of compensation limits under section 401(a)(17) of
the Code.
1.2.
Definitions
.
When
the following terms are used herein with initial capital letters, they shall
have the following meanings:
1.2.1.
Account
—
the
separate bookkeeping account representing the separate unfunded and unsecured
general obligation of the Employers established with respect to each person
who
becomes a Participant in this Plan in accordance with Section 2 and to
which is credited the amounts specified in Sections 3 and 4 and from which
are subtracted payments made pursuant to Section 6. Such subaccounts may be
established as the Company may determine necessary or useful to the
administration of this Plan.
1.2.2.
Affiliate
—
a
business entity which is affiliated in ownership with H.B. Fuller that is
recognized as an Affiliate by the Company for the purposes of this
Plan.
1.2.3.
Base
Plan
—
as
applicable, the H.B. Fuller Company Thrift Plan or any successor plan thereto
or
the EFTEC Savings Plan or any successor plan thereto.
1.2.4.
Beneficiary
—
a
person designated by a Participant (or automatically by operation of
Section 6.5) to receive all or a part of the Participant’s Account in the
event of the Participant’s death prior to full distribution thereof. A person so
designated shall not be considered a Beneficiary until the death of the
Participant.
1.2.5.
Change
in Control
—
any
of
the following events:
|
(a)
|
a
change in control of the Company of a nature that would be required
to be
reported in accordance with Regulation 14A promulgated under the
Securities Exchange Act of 1934 (the Exchange Act”), whether or not the
Company is then subject to such reporting
requirement;
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(b)
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a
public announcement (which for purposes hereof, shall include, without
limitation, a report filed pursuant to section 13(d) of the Exchange
Act) that any individual, corporation, partnership, association,
trust or
other entity becomes a beneficial owner (as defined in Rules 13(d)(3)
promulgated under the Exchange Act), directly or indirectly, of securities
or the Company representing 15% or more of the Voting Power of the
Company
then outstanding;
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(c)
|
the
individuals who, as of January 1, 2007, are members of the Board of
Directors of the Company (the “Incumbent Board”) cease for any reason to
constitute at least a majority of the Board (provided, however, that
if
the election or nomination for election by the Company’s shareholders of
any new director was approved by a vote of at least a majority of
the
Incumbent Board, such a new director shall be considered to be a
member of
the Incumbent Board);
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(d)
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the
approval of the shareholders of the Company of (i) any consolidation,
merger or statutory share exchange of the Company with any person
in which
the surviving entity would not have as its directors at least 60%
of the
Incumbent Board and as a result of which those persons who were
shareholders of the Company immediately prior to such transaction
would
not hold, immediately after such transaction, at least 60% of the
Voting
Power of the Company then outstanding or the combined voting power
of the
surviving entity’s then outstanding voting securities; (ii) any sale,
lease, exchange or other transfer in one transaction or series of
related
transactions substantially all of the assets of the Company; or
(iii) the adoption of any plan or proposal for the complete or
partial liquidation or dissolution of the Company;
or
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(e)
|
a
determination by a majority of the members of the Incumbent Board,
in
their sole and absolute discretion, that there has been a Change
in
Control of the Company.
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1.2.6.
Code
—
the
Internal Revenue Code of 1986, as amended (including, when the context requires,
all regulations, interpretations and rulings issued thereunder).
1.2.7.
Committee
—
the
Compensation Committee of the Board of Directors of H.B. Fuller (or any
successor committee) or such other person or persons whom the Committee
authorizes to act on its behalf to administer the Plan.
1.2.8.
Company
—
H.B.
Fuller Company and any successor thereto.
1.2.9.
Disability
—
a
medically determinable physical or mental impairment which (i) is expected
to result in death or to last for a continuous period of at least 12 months,
(ii) renders the Participant incapable of any substantial gainful activity,
and (iii) is evidenced by a certification to this effect by a doctor of
medicine approved by the Company. Alternatively, a Participant will be
considered disabled if the Participant is, by reason of any medically
determinable physical or mental impairment which is expected to result in death
or to last for a continuous period of at least 12 months, receiving income
replacement for a period of at least 3 months under the Employer’s disability
plan. A Participant who provides proof of a determination of disability by
the
Social Security Administration will be deemed disabled under this Plan.
Disability shall be construed to be consistent with the meaning of that term
in
section 409A of the Code and regulations and guidance thereunder.
1.2.10.
Effective
Date
—
January 1, 2007.
1.2.11.
Eligible
Compensation
—
Eligible Earnings as defined under the Base Plan; provided, however, that
Eligible Compensation for purpose of this Plan shall be determined without
regard to limitations imposed under section 401(a)(17) of the
Code.
1.2.12.
Employers
—
H.B.
Fuller and each business entity affiliated with H.B. Fuller that employs persons
who are designated by the Committee for participation in this Plan (collectively
the “Employers” and separately the “Employer”).
1.2.13.
ERISA
—
the
Employee Retirement Income Security Act of 1974, as amended (including, when
the
context requires, all regulations, interpretations and rulings issued
thereunder).
1.2.14.
Measuring
Option(s)
—
the
investment option(s) determined from time to time in the sole discretion of
the
Committee which may be elected by the Participant to measure the value of
credits in the Participant’s Account. In the absence of a specific determination
by the Committee, the value of the Participant’s Account shall be increased
daily by a factor that would result in an annual rate of return equal to the
annual prime rate for corporate borrowers quoted each day by the Wall Street
Journal.
1.2.15.
Participant
—
an
employee of an Employer who becomes a Participant in this Plan in accordance
with the provisions of Section 2. An employee who has become a Participant
shall be considered to continue as a Participant in this Plan until the date
of
the Participant’s death or, if earlier, the date when the Participant is no
longer employed by an Employer or an Affiliate and upon which the Participant
no
longer has any Account under this Plan (that is, the Participant has received
a
distribution of all of the Participant’s Account).
1.2.16.
Plan
—
the
nonqualified, income deferral program maintained by H.B. Fuller established
for
the benefit of Participants eligible to participate therein, as set forth in
the
Plan Statement. (As used herein, “Plan” does not refer to the documents pursuant
to which this Plan is maintained. That document is referred to herein as the
“Plan Statement”). The Plan shall be referred to as the H.B. Fuller Company
Defined Contribution Restoration Plan.
1.2.17.
Plan
Statement
—
this
document entitled “H.B. Fuller Company Defined Contribution Restoration Plan” as
adopted by the Board of Directors of H.B. Fuller, as the same may be amended
from time to time thereafter.
1.2.18.
Plan
Year
—
the
twelve (12) consecutive month period ending on any
December 31.
1.2.19.
Separation
from Service
—
a
complete severance of an employee’s employment relationship with the Employers
and all Affiliates, if any, for any reason other than the employee’s death. A
transfer from employment with an Employer to employment with an Affiliate of
an
Employer shall not constitute a Separation from Service. Separation from Service
shall be construed to be consistent with the meaning of that term in
section 409A of the Code and regulations and guidance
thereunder.
1.2.20.
Unforeseeable
Emergency
—
a
severe financial hardship to the Participant resulting from an illness or
accident of the Participant, the Participant’s spouse, or a dependent (as
defined in section 152(a) of the Code) of the Participant, loss of the
Participant’s property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control
of
the Participant. Unforeseeable Emergency shall be construed to be consistent
with the meaning of that term in section 409A of the Code and regulations and
guidance thereunder.
SECTION
2
PARTICIPATION
2.1.
General.
Each
employee of an Employer shall become a Participant in the Plan upon satisfaction
of the following requirements:
|
(a)
|
Employee
is determined by the Committee to be classified at the pay grade
of
thirty-two (32) or higher or to be a member of a select group of
management or highly compensated employees (as that term is used
in
ERISA);
|
|
(b)
|
Employee
is affirmatively selected by the Committee for participation in the
Plan;
and
|
|
(c)
|
Employee
is eligible to participate in the Base
Plan.
|
2.2.
Suspension
of Eligibility
.
If the
Committee determines that a Participant ceases to be a member of a select group
of management or highly compensated employees (as that term is used in ERISA),
the Participant’s deferral election will terminate and no additional amounts
will be credited to the Participant’s Accounts until such time as the individual
is again determined to be eligible to participate in the Plan by the Committee.
However, the Accounts of such Participant shall continue to be adjusted pursuant
to Section 4 until distributed.
SECTION
3
CREDITS
TO ACCOUNT
3.1.
Amount
.
As soon
as administratively feasible after the end of the Plan Year, the Company shall
credit the Account of each eligible Participant with an amount equal to four
percent (4%) of the Participant’s Eligible Compensation for such Plan Year less
the amount of employer matching contributions actually credited to the
Participant for such Plan Year in the Base Plan; provided, however, that such
credit to the Account shall be reduced by the amount of any FICA, federal,
state
and/or local income taxes that may be due with respect to such
credit.
3.2.
Eligible
Participants
.
For
purposes of this Section 3, a Participant shall be an eligible Participant
for a Plan Year only if (i) the Participant was eligible to participate under
the Base Plan on the first day of the Plan Year, and (ii) the Participant’s
elective deferrals under the Base Plan were equal to the maximum amount
permitted for such Plan Year under section 402(g) of the Code
PLUS
,
if
applicable to the Participant, the maximum amount permitted for such Plan Year
under section 414(v) of the Code (
i.e.
,
catch
up deferrals). For this purpose, a Participant who ceases to be eligible to
participate in the Base Plan before the end of the Plan Year shall be treated
as
having deferred the maximum amounts under sections 402(g) and 414(v) of the
Code if the Participant deferred a pro-rated amount of such maximum amounts
based on the number of pay periods during which the Participant was eligible
to
participate in the Base Plan.
SECTION
4
ADJUSTMENT
OF ACCOUNTS
4.1.
Establishment
of Accounts
.
There
shall be established for each Participant unfunded, bookkeeping Accounts which
shall be hypothetical in nature. Neither the Plan nor any of the Accounts shall
hold or be required to hold any actual funds or assets.
4.2.
Adjustments
of Accounts
.
From
time to time, but not less frequently than the last day of each Plan Year,
the
value of each Account or portion of an Account shall be increased (or decreased)
for distributions, credits (including any earnings, gains or losses thereon)
and
any expenses charged to the Account.
4.3.
Investment
Adjustments
.
The
Committee shall have the sole discretion to designate from time to time the
Measuring Option(s) in which the Accounts may be deemed invested. The Committee
shall, in its sole discretion, adopt rules specifying (i) the circumstances
under which a particular Measuring Option may be elected (or automatically
utilized), (ii) the minimum or maximum percentages which may be allocated
to the Measuring Option, (iii) the procedures (if any) for Participants
making or changing elections of Measuring Options (including when such elections
and election changes shall be implemented after the election is accepted by
the
Committee), (iv) the extent (if any) to which beneficiaries of deceased
Participants may change Measuring Options, and (v) the effect of a
Participant’s or beneficiary’s failure to make an effective election with
respect to a Measuring Option. Notwithstanding the foregoing, subsequent to
a
Change in Control, the Committee shall maintain the availability of those
Measuring Options in place at the time of the Change in Control (or
substantially equivalent Measuring Options).
SECTION
5
VESTING
The
Account of each Participant shall be fully (100%) vested and nonforfeitable
at
all times. Notwithstanding the foregoing, if the Company determines in its
discretion that a Participant has improperly received a credit under this Plan
for any reason (including, but not limited to, an erroneous calculation or
other
mistake of fact, or on account of a restatement of earnings), the Account shall
be reduced by the amount of the improper credit.
SECTION
6
DISTRIBUTIONS
6.1.
Time
of Distribution
.
The
value of the Participant’s Account shall be determined as of the last business
day of the month in which occurs the earliest of (i) the date that is six
(6) months following the Participant’s Separation from Service, (ii) the
date of Participant’s death, or (iii) the date of the Participant’s
Disability (the “Distribution Date”), and payment to the Participant (or
Beneficiary, if applicable) shall commence within sixty (60) days
thereafter.
6.2.
Form
of Distribution
.
Distribution shall be made to the Participant (or Beneficiary, if applicable)
in
a single lump sum.
6.3.
Distributions
in Cash
.
Distribution from the Participant’s Account shall be paid in cash.
6.4.
Special
Rules
.
6.4.1.
Unforeseeable
Emergency
.
A
Participant whose Distribution Date has not occurred but who has incurred an
Unforeseeable Emergency may request a withdrawal from such Participant’s
Account. In the event that the Company, upon written petition of the
Participant, determines in his or her sole discretion that the Participant
has
suffered an Unforeseeable Emergency, the Company shall distribute to the
Participant as soon as reasonably practicable following such determination,
an
amount (not in excess of the value of the Participant’s Account) necessary to
satisfy the emergency. If multiple Measuring Options are available in the Plan,
distribution shall be taken pro-rata from the Measuring Options the Participant
has elected.
6.4.2.
Code
§162 Delay
.
Notwithstanding anything to the contrary in this Section 6, distribution
shall be delayed when the Employer reasonably anticipates that the Employer’s
federal income tax deduction with respect to such distribution otherwise would
be limited or eliminated by application of section 162(m) of the Code. The
distribution shall thereafter be made at the earliest date at which the Employer
reasonably anticipates that the deduction with respect to such distribution
will
not be limited or eliminated by application of section 162(m) of the
Code.
6.4.3.
No
Parachute Payment
.
If the
Committee determines in its reasonable discretion following consultation with
appropriate tax and/or legal advisors that distribution on account of the
Participant’s Separation from Service would likely constitute a parachute
payment for purposes of section 280G of the Code, distribution on account
of the Participant’s Separation from Service shall not occur, and distribution
shall occur, thereafter, only on account of the earliest of (i) the
Participant’s sixty-fifth (65
th
)
birthday, (ii) the Participant’s death or (iii) the Participant’s
Disability; provided, however, that if the Participant is age sixty-five (65)
or
more on the date of such determination, the Participant’s seventy-second
(72
nd
)
birthday shall be substituted for the sixty-fifth (65
th
)
birthday. If the Participant’s Separation from Service occurs subsequent to a
Change in Control, the Committee shall, at the Company’s expense, promptly
request a written opinion of the “independent auditor” with respect to the
applicability of such section 280G and such written opinion shall determine
if a distribution would likely constitute a parachute payment. As used in this
Section 6.4.3, the term “independent auditor” means the firm of certified
public accountants which at the time of the Change in Control had been most
recently engaged by the Company or such other comparable and nationally
recognized firm of certified public accountants as may be selected by the
Committee in its reasonable discretion.
6.4.4.
Lump
Sum Distribution to Pay Taxes
.
Notwithstanding anything to the contrary in this Section 6, a lump sum
shall be distributed to the Participant (i) to pay any employment taxes
under FICA that may become due on compensation deferred under this Plan,
(ii) to pay any income tax withholding related to the distribution of
amounts to pay FICA taxes, and (iii) to pay any amounts required to be
included in the Participant’s income due to failure to comply with the
requirements in section 409A of the Code.
6.5.
Designation
of Beneficiaries.
6.5.1.
Right
to Designate
.
Each
Participant may designate, upon form to be furnished by and filed with the
Company, one or more primary Beneficiaries or alternative Beneficiaries to
receive all or a specified part of such Participant’s Account in the event of
such Participant’s death. The Participant may change or revoke any such
designation from time to time without notice to or consent from any spouse,
Beneficiary or any other person. No such designation, change or revocation
shall
be effective unless executed by the Participant and received by the Company
during the Participant’s lifetime. The Company may establish rules for the use
of electronic signatures. Until such rules are established, electronic
signatures shall not be effective.
6.5.2.
Failure
of Designation
.
If a
Participant:
|
(a)
|
fails
to designate a Beneficiary,
|
|
(b)
|
designates
a Beneficiary and thereafter revokes such designation without naming
another Beneficiary, or
|
|
(c)
|
designates
one or more Beneficiaries and all such Beneficiaries so designated
fail to
survive the Participant,
|
such
Participant’s Account, or the part thereof as to which such Participant’s
designation fails, as the case may be, shall be payable to the first class
of
the following classes of automatic Beneficiaries with a member surviving the
Participant and (except in the case of surviving issue) in equal shares if
there
is more than one member in such class surviving the Participant:
Participant’s
surviving spouse
Participant’s
surviving issue per stirpes and not per capita
Participant’s
surviving parents
Participant’s
surviving brothers and sisters
Representative
of Participant’s estate.
6.5.3.
Disclaimers
by Beneficiaries
.
A
Beneficiary entitled to a payment of all or a portion of a deceased
Participant’s Account may disclaim an interest therein subject to the following
requirements. To be eligible to disclaim, a Beneficiary must be a natural
person, must not have received a payment of all or any portion of the Account
at
the time such disclaimer is executed and delivered, and must have attained
at
least age twenty-one (21) years as of the date of the Participant’s death. Any
disclaimer must be in writing and must be executed personally by the Beneficiary
before a notary public. A disclaimer shall state that the Beneficiary’s entire
interest in the unpaid Account is disclaimed or shall specify what portion
thereof is disclaimed. To be effective, an original executed copy of the
disclaimer must be both executed and actually delivered to the Company after
the
date of the Participant’s death but not later than nine (9) months after the
date of the Participant’s death. A disclaimer shall be irrevocable when
delivered to the Company. A disclaimer shall be considered to be delivered
to
the Company only when actually received by the Company. The Company shall be
the
sole judge of the content, interpretation and validity of a purported
disclaimer. Upon the filing of a valid disclaimer, the Beneficiary shall be
considered not to have survived the Participant as to the interest
disclaimed. A disclaimer by a Beneficiary shall not be considered to
be a transfer of an interest in violation of the provisions of
Section 11.12 and shall not be considered to be an assignment or alienation
of benefits in violation of federal law prohibiting the assignment or alienation
of benefits under this Plan. No other form of attempted disclaimer shall be
recognized by the Company.
6.5.4.
Definitions
.
When
used herein and, unless the Participant has otherwise specified in the
Participant’s Beneficiary designation, when used in a Beneficiary designation,
the following definitions and rules shall be applied.
|
(a)
|
“Issue”
means all persons who are lineal descendants of the person whose
issue are
referred to, subject to the
following:
|
|
(i)
|
a
legally adopted child and the adopted child’s lineal descendants always
shall be lineal descendants of each adoptive parent (and of each
adoptive
parent’s lineal ancestors);
|
|
(ii)
|
a
legally adopted child and the adopted child’s lineal descendants never
shall be lineal descendants of any former parent whose parental rights
were terminated by the adoption (or of that former parent’s lineal
ancestors); except that if, after a child’s parent has died, the child is
legally adopted by a stepparent who is the spouse of the child’s surviving
parent, the child and the child’s lineal descendants shall remain lineal
descendants of the deceased parent (and the deceased parent’s lineal
ancestors);
|
|
(iii)
|
if
the person (or a lineal descendant of the person) whose issue are
referred
to is the parent of a child (or is treated as such under applicable
law)
but never received the child into that parent’s home and never openly held
out the child as that parent’s child (unless doing so was precluded solely
by death), then neither the child nor the child’s lineal descendants shall
be issue of the person.
|
|
(b)
|
“Child”
means an issue of the first
generation;
|
|
(c)
|
“Per stirpes”
means in equal shares among living children of the person whose issue
are
referred to and the issue (taken collectively) of each deceased child
of
such person, with such issue taking by right of representation of
such
deceased child; and
|
|
(d)
|
“Survive”
and “surviving” mean living after the death of the
Participant.
|
6.5.5.
Special
Rules
.
Unless
the Participant has otherwise specified in the Participant’s Beneficiary
designation, the following rules shall apply:
|
(a)
|
If
there is not sufficient evidence that a Beneficiary was living at
the time
of the death of the Participant, it shall be deemed that the Beneficiary
was not living at the time of the death of the
Participant.
|
|
(b)
|
The
automatic Beneficiaries specified in Section 6.5.2 and the
Beneficiaries designated by the Participant shall become fixed at
the time
of the Participant’s death so that, if a Beneficiary survives the
Participant but dies before the receipt of all payments due such
Beneficiary hereunder, such remaining payments shall be payable to
the
representative of such Beneficiary’s
estate.
|
|
(c)
|
If
the Participant designates as a Beneficiary the person who is the
Participant’s spouse on the date of the designation, either by name or by
relationship, or both, the dissolution, annulment or other legal
termination of the marriage between the Participant and such person
shall
automatically revoke such designation. The foregoing shall not prevent
the
Participant from designating a former spouse as a Beneficiary on
a form
that is both executed by the Participant and received by the Company
(i) after the date of the legal termination of the marriage between
the Participant and such former spouse and (ii) during the
Participant’s lifetime.
|
|
(d)
|
Any
designation of a nonspouse Beneficiary by name that is accompanied
by a
description of relationship to the Participant shall be given effect
without regard to whether the relationship to the Participant exists
either then or at the Participant’s
death.
|
|
(e)
|
Any
designation of a Beneficiary only by statement of relationship to
the
Participant shall be effective only to designate the person or persons
standing in such relationship to the Participant at the Participant’s
death.
|
|
(f)
|
The
Company shall be the sole judge of the content, interpretation and
validity of a purported Beneficiary
designation.
|
6.6.
No
Spousal Rights
.
No
spouse, former spouse, Beneficiary or other person shall have any rights or
interest in the benefits credited under this Plan including, but not limited
to,
the right to be the sole Beneficiary or to consent to the designation of
Beneficiaries (or the changing of designated Beneficiaries) by the
Participant.
6.7.
Death
Prior to Full Payment
.
If, at
the death of the Participant, distribution to the Participant was due or
otherwise pending but not actually paid, distribution shall be paid to the
Beneficiary (and shall not be paid to the Participant’s estate).
6.8.
Facility
of Payment
.
In case
of the legal disability, including minority, of an individual entitled to
receive any payment under this Plan, payment shall be made, if the Committee
shall be advised of the existence of such condition:
|
(a)
|
to
the duly appointed guardian, conservator or other legal representative
of
such individual, or
|
|
(b)
|
to
a person or institution entrusted with the care or maintenance of
the
incompetent or disabled Participant or Beneficiary, provided such
person
or institution has satisfied the Committee that the payment will
be used
for the best interest and assist in the care of such individual,
and
provided further, that no prior claim for said payment has been made
by a
duly appointed guardian, conservator or other legal representative
of such
individual.
|
Any
payment made in accordance with the foregoing provisions of this section shall
constitute a complete discharge of any liability or obligation of Plan and
the
Company therefore.
SECTION
7
FUNDING
OF PLAN
7.1.
Unfunded
Obligation
.
The
obligation of the Employers to make payments under this Plan constitutes only
the unsecured (but legally enforceable) promise of the Employers to make such
payments. No Participant or Beneficiary shall have any lien, prior claim or
other security interest in any property of the Employers. The Employers may,
but
shall have no obligation to, establish or maintain any fund, trust or account
(other than a bookkeeping account or reserve) for the purpose of funding or
paying the benefits promised under this Plan. If such a fund, trust or account
is established, the property therein shall remain the sole and exclusive
property of the Employer that established it. The Employers shall be obligated
to pay the benefits of this Plan out of their general assets. If, as of the
close of business on the date of a Change in Control, the aggregate value of
the
Participant Accounts exceeds the value of the assets held in a trust that has
been established by an Employer, then within thirty (30) days of such Change
in
Control, such Employer that has established such a trust shall contribute to
such trust assets having a value at least equal to the amount of such
excess.
7.2.
Corporate
Obligation
.
Neither
Company, the Board of Directors of the Company, the Chief Executive Officer,
the
Committee, the Employers nor any of their directors, officers, agents or
employees in any way secure or guarantee the payment of any benefit or amount
which may become due and payable hereunder to or with respect to any
Participant. Each person entitled or claiming to be entitled at any time to
any
benefit hereunder shall look solely to the assets of the Employers for such
payments as unsecured general creditors. If, or to the extent that, Accounts
have been paid to or with respect to a present or former Participant and that
payment purports to be the payment of a benefit hereunder, such former
Participant or other person or persons, as the case may be, shall have no
further right or interest in the other assets of the Employers in connection
with this Plan. No person shall be under any liability or responsibility for
failure to effect any of the objectives or purposes of this Plan by reason
of
the insolvency of the Employers.
SECTION
8
AMENDMENT
AND TERMINATION
8.1.
Amendment
of Plan
.
The
Company reserves the power to alter, amend or wholly revise the Plan at any
time
and from time to time by action of the Board of Directors, and the interest
of
each Participant is subject to the powers so reserved; provided, however, that
no amendment made subsequent to a Change in Control shall be effective to the
extent that it would have a materially adverse impact on a Participant’s
reasonably expected economic benefit attributable to compensation deferred
by
the Participant prior to the Change in Control. An amendment shall be authorized
by the Board of Directors and shall be stated in an instrument in writing signed
in the name of the Company by a person or persons authorized by the Board of
Directors. After the instrument has been so executed, the Plan shall be deemed
to have been amended in the manner therein set forth. No amendment to the Plan
may alter, impair or reduce the benefits credited to any Accounts prior to
the
effective date of such amendment without the written consent of any affected
Participant.
8.2.
Termination
of Plan
.
The
Company may terminate the Plan at any time by action of the Board of Directors.
If there is a termination of the Plan with respect to all Participants, the
Company shall have the right, in its sole discretion, and notwithstanding any
elections made by the Participant, to amend the Plan to provide for the
distribution of all Accounts in a lump sum following such Plan termination
to
the extent permissible under Section 409A of the Code and related Treasury
regulations and guidance.
8.3.
No
Oral Amendments
.
No
modification of the terms of the Plan Statement or termination of this Plan
shall be effective unless it is approved by action of the Board of Directors.
No
oral representation concerning the interpretation or effect of the Plan
Statement shall be effective to amend the Plan Statement.
SECTION
9
DETERMINATIONS
— RULES AND REGULATIONS
9.1.
Determinations
.
The
Committee shall make such determinations as may be required from time to time
in
the administration of this Plan. The Committee shall have the discretionary
authority and responsibility to interpret and construe the Plan Statement and
all relevant documents and information, and to determine all factual and legal
questions under this Plan, including but not limited to the entitlement of
Participants and Beneficiaries, and the amounts of their respective
interests.
9.2.
Method
of Executing Instruments
.
Information to be supplied or written notices to be made or consents to be
given
by Company or any other person pursuant to any provision of the Plan Statement
may be signed in the name of Company by any officer or other person who has
been
authorized to make such certification or to give such notices or
consents.
9.3.
Claims
Procedure
.
The
claim and review procedures set forth in this Section shall be the mandatory
claim and review procedures for the resolution of disputes and disposition
of
claims filed under the Plan. An application for a distribution shall be
considered as a claim for the purposes of this Section.
9.3.1.
Initial
Claim and Decision
.
An
individual may, subject to any applicable deadline, file with the Committee
a
written claim for benefits under the Plan in a form and manner prescribed by
the
Committee. If the claim is denied in whole or in part, the Committee shall
notify the claimant of the adverse benefit determination within 90 days
after receipt of the claim. The 90 day period for making the claim determination
may be extended for 90 days if the Committee determines that special
circumstances require an extension of time for determination of the claim,
provided that the Committee notifies the claimant, prior to the expiration
of
the initial 90 day period, of the special circumstances requiring an extension
and the date by which a claim determination is expected to be made. The notice
of adverse determination shall provide: (i) the specific reasons for the
adverse determination; (ii) references to the specific provisions of the
Plan Statement (or other applicable Plan document) on which the adverse
determination is based; (iii) a description of any additional material or
information necessary to perfect the claim and an explanation of why such
material or information is necessary; and (iv) a description of the claim
and review procedures, including the time limits applicable to such procedure,
and (v) a statement of the claimant’s right to bring a civil action under
ERISA section 502(a) following an adverse determination on
review.
9.3.2.
Request
for Review and Final Decision
.
Within
60 days after receipt of an initial adverse benefit determination notice, the
claimant may file with the Committee a written request for a review of the
adverse determination and may, in connection therewith submit written comments,
documents, records and other information relating to the claim benefits. Any
request for review of the initial adverse determination not filed within 60
days
after receipt of the initial adverse determination notice shall be untimely.
If
the claim, upon review, is denied in whole or in part, the Committee shall
notify the claimant within 60 days after receipt of the request for a review.
Such 60-day period may be extended for 60 days if the Committee determines
that
special circumstances require an extension and notifies the claimant what
special circumstances require the extension and the date by which the decision
is expected. If the extension is due to the claimant’s failure to submit
information necessary to decide the claim, the claimant shall have 60 days
to
provide the necessary information and the period for making the decision shall
be tolled from the date on which the extension notice is sent until the date
the
claimant responds to the information request or, if earlier, the expiration
of
60 days. The Committee’s review of a denied claim shall take into account all
documents and other information submitted by the claimant, whether or not the
information was submitted before the claim was initially decided. The notice
of
denial upon review shall set forth in a manner calculated to be understood
by
the claimant: (i) the specific reasons for the denial; (ii) references
to the specific provisions of the Plan document on which the denial is based;
(iii) a statement that the claimant is entitled to receive, upon request
and free of charge, reasonable access to and copies of all documents, records,
and other information relevant to the claim; and (iv) a statement of the
claimant’s right to bring a civil action under ERISA
section 502(a).
9.4.
Rules
and Regulations
.
9.4.1.
Adoption
of Rules
.
Any
rule not in conflict or at variance with the provisions hereof may be adopted
by
the Company.
9.4.2.
Specific
Rules
.
|
(a)
|
Any
decision or determination to be made by the Company shall be made
by the
Committee unless delegated as provided for in the Plan, in which
case
references in this Section 9 to the Committee shall be treated as
references to the Committee’s delegate. No inquiry or question shall be
deemed to be a claim or a request for a review of a denied claim
unless
made in accordance with the established claim procedures. The Committee
may require that any claim for benefits and any request for a review
of a
denied claim be filed on forms to be furnished by the Company upon
request.
|
|
(b)
|
Claimants
may be represented by a lawyer or other representative at their own
expense, but Committee reserves the right to require the claimant
to
furnish written authorization and establish reasonable procedures
for
determining whether an individual has been authorized to act on behalf
of
a claimant. A claimant’s representative shall be entitled to copies of all
notices given to the claimant.
|
|
(c)
|
The
decision on a claim and on a request for a review of a denied claim
may be
provided to the claimant in electronic form instead of in writing
at the
discretion of the Company.
|
|
(d)
|
The
time period within which a benefit determination will be made shall
begin
to run at the time a claim or request for review is filed in accordance
with the claims procedures, without regard to whether all the information
necessary to make a benefit determination accompanies the
filing.
|
|
(e)
|
The
claims and review procedures shall be administered with appropriate
safeguards so that benefit claim determinations are made in accordance
with governing plan documents and, where appropriate, the plan provisions
have been applied consistently with respect to similarly situated
claimants.
|
|
(f)
|
For
the purpose of this Section, a document, record, or other information
shall be considered “relevant” as defined in Labor Reg.
§2560.503-1(m)(8).
|
|
(g)
|
The
Committee may, in its discretion, rely on any applicable statute
of
limitation or deadline as a basis for denial of any
claim.
|
9.4.3.
Limitations
and Exhaustion
.
|
(a)
|
No
claim shall be considered under these administrative procedures unless
it
is filed with the Company within one (1) year after the Participant
knew
(or reasonably should have known) of the general nature of the dispute
giving rise to the claim. Every untimely claim shall be denied by
the
Company without regard to the merits of the claim. No suit may be
brought
by or on behalf of any Participant or Beneficiary on any matter pertaining
to this Plan unless the action is commenced in the proper forum before
the
earlier of: (i) three (3) years after the Participant knew (or
reasonably should have known) of the general nature of the dispute
giving
rise to the action, or (ii) sixty (60) days after the Participant has
exhausted these administrative
procedures.
|
|
(b)
|
These
administrative procedures are the exclusive means for resolving any
dispute arising under this Plan. No Participant or Beneficiary shall
be
permitted to litigate any such matter unless a timely claim has been
filed
under these administrative procedures and these administrative procedures
have been exhausted, and determinations under these administrative
procedures (including determinations as to whether the claim was
timely
filed) shall be afforded the maximum deference permitted by
law.
|
|
(c)
|
For
the purpose of applying the deadlines to file a claim or a legal
action,
knowledge of all facts that a Participant knew or reasonably should
have
known shall be imputed to every claimant who is or claims to be a
Beneficiary of the Participant or otherwise claims to derive an
entitlement by reference to the Participant for the purpose of applying
the previously specified periods.
|
SECTION
10
PLAN
ADMINISTRATION
10.1.
Authority
.
10.1.1.
Company
.
Functions generally assigned to the Company shall be discharged by the
Committee, except where delegated and allocated as provided herein.
10.1.2.
Committee
.
Except
as hereinafter provided, the Committee may delegate or redelegate and allocate
and reallocate to one or more persons or to a committee of persons jointly
or
severally, and whether or not such persons are directors, officers or employees,
such functions assigned to the Committee or to the Company generally hereunder,
as the Committee may from time to time deem advisable.
10.1.3.
Board
of Directors
.
Notwithstanding the foregoing, the Board of Directors of the Company shall
have
the exclusive authority (which may not be delegated except to the Committee)
to
amend the Plan Statement and to terminate this Plan.
10.2.
Conflict
of Interest
.
If any
individual to whom authority has been delegated or redelegated hereunder shall
also be a Participant in this Plan, such Participant shall have no authority
with respect to any matter specially affecting such Participant’s individual
interest hereunder or the interest of a person superior to him or her in the
organization (as distinguished from the interests of all Participants and
Beneficiaries or a broad class of Participants and Beneficiaries), all such
authority being reserved exclusively to other individuals as the case may be,
to
the exclusion of such Participant, and such Participant shall act only in such
Participant’s individual capacity in connection with any such
matter.
10.3.
ERISA
Administrator
.
The
Company shall be the administrator of this Plan for purposes of
section 3(16)(A) of ERISA.
10.4.
Service
of Process
.
The
Secretary of the Company is designated as the appropriate and exclusive agent
for the receipt of service of process directed to this Plan in any legal
proceeding, including arbitration, involving this Plan.
SECTION
11
CONSTRUCTION
11.1.
ERISA
Status
.
This
Plan is adopted with the understanding that it is an unfunded plan maintained
primarily for the purpose of providing deferred compensation for a select group
of management or highly compensated employees as provided in
section 201(2), section 301(3) and section 401(a)(1) of ERISA.
Each provision shall be interpreted and administered accordingly.
11.2.
IRC
Status
.
This
Plan is intended to be a nonqualified deferred compensation arrangement. The
rules of section 401(a)
et.
seq.
of the
Code shall not apply to this Plan. The rules of section 3121(v) and
section 3306(r)(2) of the Code shall apply to this Plan. The rules of
section 409A of the Code shall apply to this Plan, and this Plan Statement
shall be construed and administered accordingly. Notwithstanding the foregoing,
neither the Company nor any of its officers, directors, agents or affiliates
shall be obligated, directly or indirectly, to any Participant or any other
person for any taxes, penalties, interest or like amounts that may be imposed
on
the Participant or other person on account of any amounts under this Plan or
on
account of any failure to comply with any Code section.
11.3.
Effect
on Other Plans
.
This
Plan shall not alter, enlarge or diminish any person’s employment rights or
obligations or rights or obligations under any other qualified or nonqualified
plan. It is specifically contemplated that this Plan will, from time to time,
be
amended and possibly terminated.
11.4.
Disqualification
.
Notwithstanding any other provision of the Plan Statement or any election or
designation made under this Plan, any individual who feloniously and
intentionally kills a Participant shall be deemed for all purposes of this
Plan
and all elections and designations made under this Plan to have died before
such
Participant. A final judgment of conviction of felonious and intentional killing
is conclusive for this purpose. In the absence of a conviction of felonious
and
intentional killing, the Company shall determine whether the killing was
felonious and intentional for this purpose.
11.5.
Rules
of Document Construction
.
|
(a)
|
An
individual shall be considered to have attained a given age on such
individual’s birthday for that age (and not on the day before).
Individuals born on February 29 in a leap year shall be considered to
have their birthdays on February 28 in each year that is not a leap
year.
|
|
(b)
|
Whenever
appropriate, words used herein in the singular may be read in the
plural,
or words used herein in the plural may be read in the singular; the
masculine may include the feminine; and the words “hereof,” “herein” or
“hereunder” or other similar compounds of the word “here” shall mean and
refer to the entire Plan Statement and not to any particular paragraph
or
Section of the Plan Statement unless the context clearly indicates
to the
contrary.
|
|
(c)
|
The
titles given to the various Sections of the Plan Statement are inserted
for convenience of reference only and are not part of the Plan Statement,
and they shall not be considered in determining the purpose, meaning
or
intent of any provision hereof.
|
|
(d)
|
Notwithstanding
any thing apparently to the contrary contained in the Plan Statement,
the
Plan Statement shall be construed and administered to prevent the
duplication of benefits provided under this Plan and any other qualified
or nonqualified plan maintained in whole or in part by the
Employers.
|
11.6.
References
to Laws
.
Any
reference in the Plan Statement to a statute or regulation shall be considered
also to mean and refer to any subsequent amendment or replacement of that
statute or regulation unless, under the circumstances, it would be inappropriate
to do so. The terms “spouse,” “nonspouse,” “married,” “surviving spouse,” and
other similar terms shall be construed, interpreted and applied on a basis
consistent with the federal statute known as the Defense of Marriage
Act.
11.7.
Choice
of Law
.
Except
to the extent that federal law is controlling, this Plan Statement be construed
and enforced in accordance with the laws of the State of Minnesota.
11.8.
Delegation
.
No
person shall be liable for an act or omission of another person with regard
to a
responsibility that has been allocated to or delegated to such other person
pursuant to the terms of the Plan Statement or pursuant to procedures set forth
in the Plan Statement.
11.9.
Not
an Employment Contract
.
This
Plan is not and shall not be deemed to constitute a contract of employment
between any Employer and any employee or other person, nor shall anything herein
contained be deemed to give any employee or other person any right to be
retained in any Employer’s employ or in any way limit or restrict any Employer’s
right or power to discharge any employee or other person at any time and to
treat him without regard to the effect which such treatment might have upon
him
as a Participant in this Plan.
11.10.
Tax
Withholding
.
The
Employers (or any other person legally obligated to do so) shall withhold the
amount of any federal, state or local income tax, payroll tax or other tax
required to be withheld under applicable law with respect to any amount payable
under this Plan. All benefits otherwise due hereunder shall be reduced by the
amount to be withheld.
11.11.
Expenses
.
All
expenses of administering the benefits due under this Plan shall be borne by
the
Employers.
11.12.
Spendthrift
Provision
.
No
Participant or Beneficiary shall have any interest in any Account which can
be
transferred nor shall any Participant or Beneficiary have any power to
anticipate, alienate, dispose of, pledge or encumber the same while in the
possession or control of the Employers. The Company shall not recognize any
such
effort to convey any interest under this Plan. No benefit payable under this
Plan shall be subject to attachment, garnishment, execution following judgment,
or other legal process before actual payment to such person.
The
power
to designate Beneficiaries to receive the Account of a Participant in the event
of such Participant’s death shall not permit or be construed to permit such
power or right to be exercised by the Participant so as thereby to anticipate,
pledge, mortgage or encumber such Participant’s Account or any part thereof, and
any attempt of a Participant so to exercise said power in violation of this
provision shall be of no force and effect and shall be disregarded by the
Employers.
This
section shall not prevent the Company from exercising, in its discretion, any
of
the applicable powers and options granted to it upon a Distribution Date, as
such powers may be conferred upon it by any applicable provision
hereof.
Dated:
October 23, 2006
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H.B.
Fuller Company
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By:
/s/
Albert P.L.
Stroucken
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Its:
Chief Executive Officer
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