EXHIBIT 10(h)
RAVEN INDUSTRIES, INC.
AMENDED AND RESTATED
DEFERRED COMPENSATION PLAN AND AGREEMENT
THIS AGREEMENT made this 1st day of February, 1997, by and between
RAVEN INDUSTRIES, INC., a South Dakota corporation (the "Company") and XXXXX X.
XXXXXXXXXXX, a resident of Sioux Falls, South Dakota, (the "Employee").
WHEREAS, Employee and the Company entered into a certain Deferred
Compensation Plan and Agreement on June 1, 1986; and
WHEREAS, Employee and the Company entered into a certain Amendment to
the Raven Industries Deferred Compensation Plan and Agreement on May 22, 1990;
and
WHEREAS, Employee and the Company entered into a certain Second
Amendment to the Raven Industries, Inc. Deferred Compensation Plan and Agreement
on February 1, 1997; and
WHEREAS, Paragraph 9 of said Deferred Compensation Plan and Agreement
allows the Company the discretion to amend the Plan at any time, provided no
amendment would have the effect of reducing the account balance of the Employee;
and
WHEREAS, the parties desire to amend and restate the Deferred
Compensation Plan and Agreement in order to assist in administration of the
Plan; and
WHEREAS, the Employee is currently employed by the Company and is
compensated in the form of a salary (adjusted periodically
and paid periodically during the year) and potentially certain
cash and other incentive bonuses; and
WHEREAS, The parties desire to defer payment of part of each year's
total compensation of the Employee until after the Employee's expected
retirement or other earlier termination of employment; and
WHEREAS, the parties desire that the Employee be compensated for
certain benefit reductions under the Raven Industries, Inc. Profit Sharing Plan
(the "Profit Sharing Plan");
NOW THEREFORE, In consideration of the premises and mutual promises
stated in this Plan and Agreement, the parties agree as follows:
1. DEFERRED COMPENSATION. As used herein, "deferred compensation" shall
mean any amounts attributable to compensation deferred pursuant to (a) and/or
(b) and/or (c) below.
a. ELECTION TO DEFER COMPENSATION.
(i) Beginning effective June 1, 1986, the Employee may elect to
defer all or a portion of his total compensation for the year
(or in the case of the first year of the Agreement, the
remainder of the calendar year) by filing herewith an election
on a Deferral Election Form provided by the Company.
(ii) For each subsequent calendar year, the Employee may change the
election by filing with the Company a new Deferral Election
Form on or before December 31 of the prior calendar year. Such
annual elections shall affect only subsequent compensation. If
no such election is made by the Employee in any year, the
deferral for the subsequent year shall remain unchanged, and
the latest Deferral Election Form duly filed shall continue in
effect. Each election made
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shall be irrevocable for each year to which it is applicable.
(iii) In the event an Employee should die or otherwise separate from
service prior to the last day of a calendar year, the amount
of his elected deferral for such year shall be automatically
pro-rated on the basis of the ratio of his base salary
actually received as of the date of separation from service
over his annualized base salary for such year; provided
however, that if he has deferred as of his date of separation
from service an amount greater than such pro-rated amount, the
amount of his elected deferral for such year shall be
automatically revised to equal the amount actually deferred.
b. SUPPLEMENTAL DEFERRED COMPENSATION. The Company shall, effective as of
each date upon which it makes a contribution to the Profit Sharing
Plan, credit to the Deferred Compensation Account of the Employee in
accordance with Section 2, an amount equal to the difference between
(i) and (ii) below:
(i) The amount of the Company's contribution under the Profit
Sharing Plan which would have been allocated to the Employee's
account under the Profit Sharing Plan had the Employee not
elected to defer compensation pursuant to Section l(a), and
(ii) The amount of the Company's contribution under the Profit
Sharing Plan actually allocated to the Employee's account
under the Profit Sharing Plan.
c. ADDITIONAL SUPPLEMENTAL DEFERRED COMPENSATION. The Company shall,
effective February 1, 1990, and as of each date thereafter upon which
it makes a contribution to the Profit Sharing Plan, credit to the
Deferred Compensation Account of the Employee in accordance with
Section 2 an additional amount equal to the difference between (i) and
(ii) below:
(i) the amount of the Company's contribution under the Profit
Sharing Plan which would have been allocated to the Employee's
account under the Profit Sharing Plan had the Employee's
compensation used to compute the Company's contribution not
been limited to the amount prescribed by Internal Revenue
Service Code Section
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401(a)(17), as amended by the Secretary of the Treasury
from time to time, and
(ii) the amount of the Company's contribution under the Profit
Sharing Plan actually allocated to the Employee's account
under the Profit Sharing Plan.
2. DEFERRED COMPENSATION ACCOUNT. The Company shall maintain a Deferred
Compensation Account (the "Account") in the name of the Employee (or in the name
of the designated beneficiaries upon the death of the Employee) which shall be
credited with the amounts of compensation deferred under Section 1. Until and
except to the extent that deferred benefits are distributed to the Employee or
beneficiary, the interest of the Employee or any beneficiary in such Account is
contingent only. Title to and beneficial ownership of any assets, whether cash
or investments, which the Company may set aside or earmark to meet its deferred
obligation hereunder, shall at all times remain in the Company, and neither the
Employee nor any beneficiary shall under any circumstances acquire any property
interest in any specific assets of the Company. The Company shall have full and
unrestricted use of funds credited to the Account.
3. INVESTMENT OF DEFERRED COMPENSATION ACCOUNT. The Company may, but
shall be under no obligation to, have amounts allocated to the Employee's
Account set aside or earmarked to meet the Company's deferred obligation
hereunder. The Company shall be under no obligation to invest amounts allocated
to the Account, and may in its sole discretion apply part or all of such amounts
toward the Company's normal business operations. The Company shall also have
discretion to invest a part or all of such amounts in annuities, life insurance
contracts, stocks, bonds or other securities selected by the Company in its sole
discretion provided, however, that no portion of such funds shall be invested in
any securities of the Company. In the exercise of the foregoing discretionary
investment powers, the Company may solicit investment counsel and, if it so
desires, may solicit such counsel from the Employee or the Employee's advisors.
The cost of any such advice, if any, shall be charged as an expense of
administering the Account and shall be paid out of the Account.
The Company shall annually increase the Employee's Account by an
accounting factor representing interest income. Such factor shall reflect a
simple interest rate compounded annually (pro-rated for a partial year). The
interest income accounting
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factor shall be determined each year by the Company in its sole discretion, and
the Company shall notify the Employee of such factor within 30 days prior to the
date of the Employee's election to defer compensation for such year. In the
event that the Company should either fail to determine an interest income
accounting factor for a particular year, or should fail to notify the Employee
of such factor as provided herein, the prior year's factor shall remain in
effect for such year.
The Company shall have discretion, after consultation with the
Employee, to use all or a portion of amounts allocated to the Employee's Account
to purchase and pay premiums on one or more life insurance policies on the life
of the Employee. The Employee's Account balance shall be decreased, prior to the
application of an interest income accounting factor for the period, by any such
premium payments made for such period.
4. PAYMENT OF DEFERRED COMPENSATION. The Company shall pay to the
Employee, or to his beneficiary in the event of his death, the full accounting
balance credited to his Account at the time and in the manner provided in this
Agreement and in accordance with the beneficiary designation elected by the
Employee in the payment form elected by the Employee (or designated by the
Company if the Company has designated a payment form preempting the Employee's
election).
Notwithstanding anything herein to the contrary, at any time after
payments to the Employee or beneficiary have commenced, the Company shall have
discretion to cash out the Account of the Employee by making a single lump sum
payment to the Employee or beneficiary of the remaining unpaid balance of the
Account (including an adjustment representing interest income to the date of
such payment).
Payment of the first installment of the Employee's Account shall be
made as of the first day of the month following the date of the Employee's
separation from the service of the Company. Subsequent installments, if any,
adjusted to reflect interest on the unpaid balance of his Account from time to
time, shall be payable in accordance with the payment form in effect for the
Employee.
5. ELECTION OF PAYMENT FORM. Each Deferral Election Form shall include
the Employee's election of the form in which payment of the compensation
deferred under this Agreement shall be made. Amounts deferred pursuant to such
Deferred Election Form shall be paid pursuant to the payment form thus elected
and such
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election shall be irrevocable. The following payment forms are permitted:
a. A lump sum, or
b. Substantially equal monthly installments (adjusted to reflect
interest on the unpaid Account balance) over a selected period
of up to 10 years.
The Employee may elect a different payment form for compensation
deferred in each calendar year under this Agreement; provided that the election
with respect to any year's amount shall be made by the first day of the year the
deferral is effective (or prior to the first day the deferral is effective in
the case of the first year of this Agreement). If no payment form election is
made for any year, the prior year's election shall remain in effect.
Notwithstanding anything herein to the contrary, the Company retains
discretion to:
a. At any time prior to the date distribution is to
commence, designate a payment form pre-empting the
payment form elected by the Participant, and
b. At any time after payments to the Employee or beneficiary have
commenced, cash-out the Account of the Employee by making a
single lump sum payment to the Employee or beneficiary of the
remaining unpaid balance of the Account (including the amount
of an adjustment representing interest income to the date of
such payment).
6. DEATH BENEFIT: BENEFICIARY DESIGNATION. In the event of the death of
the Employee, his Account (or any unpaid balance thereof) shall be paid to the
person or persons designated by the Employee as his beneficiary. If at the time
of his death the Company has in effect one or more life insurance policies on
the life of the Employee, purchased with amounts allocated to the Employee's
account, the death benefit herein payable shall equal to the sum of: (a) the
Employee's Account balance (exclusively of any amounts applied as premium
payments), and (b) the proceeds of any such life insurance policies.
The Employee shall designate his beneficiary (or contingent
beneficiary, if applicable) by written notice submitted to the Company, and he
may amend his beneficiary designation at any time
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by filing a new beneficiary designation with the Company. In the absence of a
beneficiary designation, or if the designated beneficiary should predecease the
Employee, any unpaid balance of the Account (and the proceeds of any insurance
policies) shall be paid to the contingent beneficiary named by the Employee, or
if none should survive the Employee, to the estate of the beneficiary.
7. EMPLOYEE'S RIGHTS. Nothing contained in this Agreement shall be
construed as a contract of employment between the Company and the Employee or as
a right of the Employee to be continued in the employment of the Company or as a
limitation of the rights of the Company to discharge the Employee, with or
without cause. Notwithstanding the foregoing, nothing contained in this
Agreement shall affect either the timing of the Employee's pay increases or the
normal amount of gross compensation except as judged reasonable and prudent by
the Company to reflect corporate and/or general economic conditions.
Amounts credited to the Employee's Account under this Agreement shall
be for bookkeeping purposes only, and the assets represented by such Account
shall remain the sole property of the Company. The right of the Employee to
receive distributions hereunder shall be unsecured claim against the general
assets of the Company, and the Employee shall not have any rights in or against
any security or other asset acquired by the Company with the proceeds of his
Account.
In the event that any claim for benefits is denied (in whole or in
part) hereunder, the claimant shall receive from the Company notice in writing,
written in a manner calculated to be understood by the claimant, setting forth
the specific reasons for denial with specific reference to pertinent provisions
of this Agreement. The interpretations and construction hereof by the Board of
Directors shall be binding and conclusive on all persons and for all purposes.
Any disagreements about such interpretations and construction shall be submitted
to an arbitrator subject to the rules ant procedures established by the American
Arbitration Association. No member of the Board of Directors shall be liable to
any person for any action taken hereunder except those actions undertaken with
lack of good faith.
8. INALIENABILITY. No benefit payable under this Agreement shall be
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, or charge prior to actual receipt thereof by the payee; and
any
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attempt to so anticipate, alienate, sell, transfer, assign, pledge, encumber or
charge prior to such receipt shall be void; nor shall the Company be in any
manner liable for or subject to the debts, contracts, liabilities, engagements,
or torts of any person entitled to any benefit.
9. AMENDMENT AND TERMINATION. The Company retains sole discretion to
amend or terminate this Plan and Agreement at any time; provided however, that
no amendment shall have the effect of reducing the Account balance of an
Employee, determined as of the date of the amendment. In the event the Plan is
terminated, the Employee's Deferral Elections shall remain in effect for the
remainder of that calendar year and then shall cease. Upon termination, the
Employee's Account shall continue to be maintained and shall continue to be
adjusted by the appropriate interest factor. Payment to the Employee or
beneficiary shall be made at such time and in such form as if the Plan and
Agreement had not been terminated; provided however, that the Company shall, at
any time after the Plan and Agreement is terminated, have sole discretion to
commence payments to the Employee under a form of payment determined at the sole
discretion of the Company.
10. APPLICABLE LAW. This Agreement shall constitute "a plan which is
unfunded and is maintained by an employer primarily for the purpose of providing
deferred compensation for a select group of management or highly compensated
employees", as defined by Section 301(a)(3) of the Employee Retirement Income
Security Act of 1974 ("ERISA"). The provisions of this Agreement shall be
construed and applied in accordance with ERISA and the laws of the State of
South Dakota.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
this 1st day of February , 1997.
RAVEN INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, Vice President
EMPLOYEE:
/s/ Xxxxx X. Xxxxxxxxxxx
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Xxxxx X. Xxxxxxxxxxx
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