WALTER INDUSTRIES
EXECUTIVE DEFERRED COMPENSATION
AND
SUPPLEMENTAL RETIREMENT PLAN

 

Table of Contents

 

Article		Title
ARTICLE I		Definitions
ARTICLE II		Administration
ARTICLE III		Eligibility and Participation
ARTICLE IV		Deferral Elections and Supplemental Retirement Contributions
ARTICLE V		Participant Accounts and Investment of Deferred Amounts
ARTICLE VI		Plan Distributions
ARTICLE VII		Amendment and Termination
ARTICLE VIII		Miscellaneous

 

 

WALTER INDUSTRIES
EXECUTIVE DEFERRED COMPENSATION
AND
SUPPLEMENTAL RETIREMENT PLAN

 

PURPOSE

 

Walter Industries, Inc. (the “Company”) previously established the Walter Industries Executive Deferred Compensation Plan (the “Plan”) and the Walter Industries, Inc. Supplemental Profit Sharing Plan (the “Supplemental Plan”) for a select group of key management and highly compensated personnel to ensure that the Company’s and its Related Employer’s compensation program will attract, retain and motivate qualified personnel.  The Plan is hereby amended and restated effective as of January 1, 2005 to provide for the merger of the Supplemental Plan into the Plan and to rename the Plan the “Walter Industries Executive Deferred Compensation and Supplemental Retirement Plan”.  The purpose of this Plan is to provide certain key management and highly compensated employees who contribute or who are expected to contribute substantially to the success of the Company and its Related Employers with the opportunity to defer the receipt of compensation and to permit certain employees of the Company and its Related Employers who participate in the Walter Industries, Inc. Retirement Savings Plan to receive contributions equal to amounts in excess of the limitations on contributions imposed by Section 415 and 401(a)(17) of the Code, on defined contribution plans.  The Plan is intended to be an unfunded plan.

 

ARTICLE I

Definitions

 

(a)                                  “Account” or “Accounts” shall mean a Participant’s Deferred Compensation Account, and/or Supplemental Retirement Account as described in Article V.  These Accounts are bookkeeping accounts that represent a Participant’s hypothetical interest with respect to the amounts credited to such Accounts in accordance with Article V.

 

(b)                                 “Board” or “Board of Directors” shall mean the board of directors of the Company.

 

(c)                                  “Code” shall mean the Internal Revenue Code of 1986, as amended.

 

(d)                                 “Company” shall mean Walter Industries, Inc. and its successors.

 

(e)                                  “Compensation” shall mean the same as “Compensation” under the Qualified Plan.

 

(f)                                    “Deferred Compensation Account” shall mean the Account established pursuant to Article V, Section (a)(1), to hold Participant deferrals under the Plan.

 

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(g)                                 “Effective Date” shall mean, for purposes of this amendment and restatement, January 1, 2005.  The Plan was originally effective January 1, 2002.  The Walter Industries, Inc. Supplemental Profit Sharing Plan was originally effective June 16, 1983.

 

(h)                                 “Key Employee” shall mean an employee as defined in Section 416(i) of the Code, without regard to paragraph (5) thereof.

 

(i)                                     “Participant” shall mean any employee of the Company or a Related Employer who is covered by this Plan as provided in Article III.

 

(j)                                     “Plan” shall mean the Walter Industries Executive Deferred Compensation and Supplemental Retirement Plan hereby amended and restated and as it may be further amended from time to time.

 

(k)                                  “Plan Administrator” shall mean the Retirement Plans Administrative Committee that has been appointed from time to time by the Board of Directors of the Company to serve as the Plan Administrator for the Plan.

 

(l)                                     “Plan Year” shall mean the 12-month period ending on December 31.

 

(m)                               “Qualified Plan” shall mean the Walter Industries, Inc. Retirement Savings Plan, as amended, and each predecessor, successor or replacement profit sharing arrangement.

 

(n)                                 “Qualified Plan Contribution” shall mean the total of all profit sharing contributions and/or matching contributions made by the Company or a Related Employer for the benefit of a Participant as well as any forfeitures allocated to a Participant’s Account under and in accordance with the terms of the Qualified Plan in any Plan Year.

 

(o)                                 “Related Employer” shall mean any affiliate of the Company who adopts the Plan with the consent of the Company.

 

(p)                                 “Supplemental Retirement Account” shall mean the Account established pursuant to Article V, Section (a)(2) to hold Supplemental Retirement Contributions.

 

(q)                                 “Supplemental Retirement Contribution” shall mean the contribution made by the Company or a Related Employer for the benefit of a Participant under and in accordance with the terms of the Plan in any Plan Year.

 

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ARTICLE II

Administration

 

(a)                                  Plan Administrator.  The Plan Administrator shall have complete control and discretion to manage the operation and administration of the Plan.  Not in limitation, but in amplification of the foregoing, the Plan Administrator shall have the following powers:

 

(1)                                  To determine all questions relating to the eligibility of employees to participate or continue to participate;

 

(2)                                  To maintain all records and books of account necessary for the administration of the Plan;

 

(3)                                  To interpret the provisions of the Plan and to make and to publish such interpretive or procedural rules as are not inconsistent with the Plan and applicable law;

 

(4)                                  To compute, certify and arrange for the payment of benefits to which any Participant or beneficiary is entitled;

 

(5)                                  To process claims for benefits under the Plan by Participants or beneficiaries;

 

(6)                                  To engage consultants and professionals to assist the Plan Administrator in carrying out its duties under this Plan; and

 

(7)                                  To develop and maintain such instruments as may be deemed necessary from time to time by the Plan Administrator to facilitate payment of benefits under the Plan.

 

(b)                                 Plan Administrator’s Authority.  The Plan Administrator may consult with Company officers, legal and financial advisers to the Company and others, but nevertheless the Plan Administrator shall have the full authority and discretion to act, and the Plan Administrator’s actions shall be final and conclusive on all parties.

 

(c)                                  Claims and Appeal Procedure for Denial of Benefits.

 

(1)                                  A Participant or a beneficiary (“Claimant”) may file with the Plan Administrator a written claim for benefits if the Participant or beneficiary determines the distribution procedures of the Plan have not provided him his proper interest in the Plan.  The Plan Administrator must render a decision on the claim within a reasonable period of time of the Claimant’s written claim for benefits.  The Plan Administrator must provide adequate notice in writing to the Claimant whose claim for benefits under the Plan the Plan Administrator has denied.  The Plan Administrator’s notice to the Claimant must set forth:

 

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(A)                              The specific reason for the denial;

 

(B)                                Specific references to pertinent Plan provisions on which the Plan Administrator based its denial;

 

(C)                                A description of any additional material and information needed for the Claimant to perfect his claim and an explanation of why the material or information is needed; and

 

(D)                               That any appeal the Claimant wishes to make of the adverse determination must be made in writing to the Plan Administrator within sixty (60) days after receipt of the Plan Administrator’s notice of denial of benefits.  The Plan Administrator’s notice must further advise the Claimant that his failure to appeal the action to the Plan Administrator in writing will render the Plan Administrator’s determination final, binding and conclusive.  The Plan Administrator’s notice of denial of benefits must identify the name and address of the Plan Administrator to whom the Claimant may forward his appeal.

 

(2)                                  If the Claimant should appeal to the Plan Administrator, he, or his duly authorized representative, must submit, in writing, whatever issues and comments he, or his duly authorized representative, believes are pertinent.  The Claimant, or his duly authorized representative, may review pertinent Plan documents.  The Plan Administrator will re-examine all facts related to the appeal and make a final determination as to whether the denial of benefits is justified under the circumstances.  The Plan Administrator must advise the Claimant of its decision within a reasonable period of time of the Claimant’s written request for review.

 

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ARTICLE III

Eligibility and Participation

 

(a)                                  Eligibility.  The Plan Administrator, in its sole discretion, shall determine those employees of the Company or a Related Employer eligible to participate in the Plan.  Accordingly, an employee of the Company or a Related Employer who, in the opinion of the Plan Administrator based upon its then current guidelines, has contributed or is expected to contribute significantly to the growth and successful operations of the Company or a Related Employer and who meets any additional criteria for eligibility that the Plan Administrator, in its sole discretion, may adopt from time to time, will be eligible to become a Participant with respect to deferrals in accordance with Article IV, Section (a).  Only those employees of the Company or Related Employer determined to be eligible for the Plan by the Plan Administrator who participate in the Qualified Plan and who are restricted by the limitations on contributions imposed by Code Sections 415 and 401(a)(17) shall be eligible to participate in the Plan for purposes of receiving Supplemental Retirement Contributions, if any.

 

(b)                                 Participation.  An eligible employee shall become a Participant upon being notified by the Company.

 

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ARTICLE IV

Deferral Elections and Supplemental Retirement Contributions

 

(a)                                  Deferral Procedures.

 

(1)                                  Any Participant may elect to defer for any calendar year all or any portion of his base salary and/or cash bonus payable during such calendar year as may be permitted by the Plan Administrator in its discretion; provided, however, that the minimum annual deferral amount from a Participant’s base salary shall be $2,000.

 

(2)                                  Any deferral election under this paragraph (a) shall be in writing, signed by the Participant, and delivered to the Plan Administrator prior to January 1 of the calendar year in which the compensation to be deferred is otherwise payable to the Participant; provided, however, that within the 30-day period following a Participant’s eligibility to participate in the Plan, he shall be permitted to defer compensation payable subsequent to his deferral election.

 

(3)                                  A Participant’s deferral election shall remain in effect until modified or revoked.  Except as provided in subparagraph (4) below, any modification or revocation will not be effective until the January 1 next following the date the modification or revocation is received by the Plan Administrator.

 

(4)                                  (A)                              If a Participant suffers an unforeseeable emergency (as defined in paragraph (e) of Article VI), determined in the discretion of the Plan Administrator, the Participant will be permitted to revoke his deferral election for the remainder of the calendar year in which it is determined by the Plan Administrator that the unforeseeable emergency has occurred.

 

(B)                                A Participant who revokes his deferral election pursuant to this subparagraph (4) shall be eligible to make a new deferral election pursuant to the provisions of paragraph (a)(2) above effective as of the January 1 that next follows the effective date of the revocation of his deferral election under paragraph (a)(4)(A) above.

 

(b)                                 Election Forms.  Any election by a Participant under this Article IV shall be made on a form or forms prescribed by the Plan Administrator (the terms of which are incorporated herein by reference), and shall specify the amount of compensation to be deferred.

 

(c)                                  Revocation or Change.  Any permitted revocation of or change in any deferral election under this Article IV shall be in writing and shall be on such form as may be approved by the Plan Administrator.

 

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(d)                                 Supplemental Retirement Contributions.

 

(1)                                  For any Plan Year, the Company or a Related Employer may, in its discretion, credit a Participant with a Supplemental Retirement Contribution in an amount equal to the difference between (1) and (2) below: