WALTER INDUSTRIES, INC.

DIRECTORS’ DEFERRED FEE PLAN

 

AMENDED AND RESTATED

AS OF

JANUARY 1, 2008

 

Table of Contents

 

Article		Title		Page
ARTICLE I		Purpose		I-1
ARTICLE II		Definitions		II-1
ARTICLE III		Administration		III-1
ARTICLE IV		Eligibility and Participation		IV-1
ARTICLE V		Deferral Elections and Discretionary Contributions		V-1
ARTICLE VI		Participant Accounts and Investment of Deferred Amounts		VI-1
ARTICLE VII		Plan Benefits and Distributions		VII-1
ARTICLE VIII		Amendment and Termination		VIII-1
ARTICLE IX		Miscellaneous		IX-1

 

 

WALTER INDUSTRIES, INC.

DIRECTORS’ DEFERRED FEE PLAN

 

AMENDED AND RESTATED

AS OF

JANUARY 1, 2008

 

ARTICLE I

 

Purpose

 

Walter Industries, Inc. (the “Company”) previously established the Walter Industries, Inc. Directors’ Deferred Fee Plan (the “Plan”) effective as of January 1, 2008, for eligible members of the Board of Directors of the Company.  The Company has determined that it would be in the best interest of the Participants to amend and restate the Plan effective as of January 1, 2008 to comply with Code Section 409A and to make other desired changes.  The Plan is an unfunded plan.  The Plan is intended to comply with Section 409A of the Internal Revenue Code.

 

I-1

 

ARTICLE II

 

Definitions

 

(a)                                   “ Account ” or “ Accounts ” shall mean a Participant’s Income Account or Stock Equivalent Account.

 

(b)                                  “ Beneficiary ” shall mean the person or persons designated by the Participant on a form prescribed by and filed with the Plan Administrator, and may be changed at any time by filing a new form with the Plan Administrator.  If the Participant has designated no Beneficiary, or if no Beneficiary that he has designated survives him, then such unpaid amounts shall be paid to his estate.  In the event of any dispute as to the entitlement of any Beneficiary, the Plan Administrator’s determination shall be final, and the Plan Administrator may withhold any payment until such dispute has been resolved.

 

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

 

(d)                                  “ Code ” shall mean the Internal Revenue Code of 1986, as it may be amended from time to time, or any successor statute.  Reference to a specific Section of the Code shall include a reference to any successor provision.

 

(e)                                   “ Common Stock ” shall mean the common stock of the Company, par value $.01 per share.

 

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

 

(g)                                  “ Compensation ” shall mean the fees paid by the Company to a Participant related to services as a member of the Board of Directors, but does not include travel expenses.

 

(h)                                  “ Dividend Equivalent ” shall mean, with respect to any cash dividend declared and paid by the Company, an amount equal (i) the cash dividend paid by the Company per share of Common Stock, multiplied by (ii) the number of Stock Equivalent Shares in the Participant’s Stock Equivalent Account on the record date of such dividend.

 

(i)                                      “ Effective Date ” shall mean, for purposes of this amendment and restatement, January 1, 2008.

 

(j)                                      “ Fair Market Value ” shall mean, with respect to a share of Common Stock on any given date, (i) if the Common Stock is readily tradable on an established securities market, the closing price per share on such date as reported on the principal securities market on which the Common Stock is so traded (or, if the date is not a trading day, on the trading day next preceding such date), or (ii) if the Common Stock is not readily tradable on an established securities market, the fair market value of the Common Stock as determined by the Plan Administrator in good faith, taking into account all applicable laws, rules and regulations.

 

II-1

 

(k)                                   “ Income Account ” shall mean a bookkeeping account established in accordance with Article VI that represents a Participant’s hypothetical interest with respect to the amounts credited to such Account in accordance with paragraph (a) of Article V and paragraph (c) of Article VI.

 

(l)                                      “ Participant ” shall mean any member of the Board of Directors of the Company who is covered by this Plan as provided in Article IV.

 

(m)                                “ Plan ” shall mean the Walter Industries, Inc. Directors’ Deferred Fee Plan and as it may be amended from time to time.

 

(n)                                  “ Plan Administrator ” shall mean the Company.

 

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

 

(p)                                  “ Stock Equivalent Account ” shall mean a bookkeeping account established in accordance with Article VI that represents a Participant’s hypothetical interest with respect to the Stock Equivalent Shares credited to such Account in accordance with paragraph (a) of Article V and paragraph (c) of Article VI.

 

(q)                                  “ Stock Equivalent Share ” shall mean a bookkeeping entry that is equivalent in value, at any given time, to one (1) share of Common Stock.

 

(r)                                     “ Termination Event ” shall mean any event that results in the termination of a Participant’s service as a member of the Board (including, death, resignation or removal).

 

II-2

 

ARTICLE III

 

Administration

 

(a)                                   Plan Administrator .

 

(1)                                   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:

 

(A)                               To determine all questions relating to the eligibility of members of the Board, to participate or continue to participate;

 

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

 

(C)                                 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;

 

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

 

(E)                                  To process claims for benefits under the Plan by Participants or Beneficiaries;

 

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

 

(G)                                 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.

 

(2)                                   The Plan Administrator may designate a committee to assist the Plan Administrator in the administration of the Plan and perform the duties required of the Plan Administrator hereunder.

 

(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 .  The 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

 

III-1

 

writing to the Claimant whose claim for benefits under the Plan the Plan Administrator has denied.  Notice must be provided to the Claimant within a reasonable period of time, but not later than 90 days (45 days in the case of a claim for disability benefits) after the receipt of a claim.  If the Plan Administrator determines the additional time is needed, written notice will be forwarded to the Participant prior to the expiration of the 90-day period (45 days in the case of a claim for disability benefits).  The extension will not exceed 90 days (30 days in the case of a claim for disability benefits) from the end of the initial period.  The Plan Administrator’s notice to the Claimant must set forth:

 

(1)                                   The specific reason for the denial;

 

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

 

(3)                                   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

 

(4)                                   Appropriate information as to the steps to be taken if the Claimant wants to submit the claim for review; and

 

(5)                                   In the case of disability benefits, where disability is determined by a physician appointed by the Plan Administrator, the specific basis for the determination of the physician.

 

Any appeal the Claimant wishes to make of an adverse determination must be made in writing to the Plan Administrator within sixty (60) days (or 180 days in the case of a claim for disability benefits where the disability is determined by a physician chosen by the Plan Administrator) 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.

 

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 free of charge.  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 60 days following (45 days in the case of a claim for disability benefits) the Claimant’s written request for review.  If the Plan Administrator determines the additional time is needed, written notice will be forwarded to the Participant prior to the expiration of the 60-day period.  The extension will not exceed 60 days (45 days in the case of a claim for disability benefits) from the end of the initial period.

 

III-2

 

ARTICLE IV

 

Eligibility and Participation

 

(a)                                   Eligibility .  Each person who is elected to be a member of the Board and who is not an employee of the Company or any of its subsidiaries is eligible to elect to participate in the Plan.

 

(b)                                  Participation .  An eligible person shall become a Participant upon receiving notification from the Plan Administrator and the timely filing of elections pursuant to Article V.

 

IV-1

 

ARTICLE VI

 

Participant Accounts and Investment of Deferred Amounts

 

(a)                                   In General .

 

(1)                                   Any Compensation deferred pursuant to this Plan shall be recorded by the Plan Admin