-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, K34ELfvq25FS1ta0LQvNcEnE5xBXOEvFa/s9rDYE05K6uTPeJU6xS9a4GzgZaikY HmAeMVNw1daeGz53BdcsRw== 0000912057-02-007146.txt : 20020414 0000912057-02-007146.hdr.sgml : 20020414 ACCESSION NUMBER: 0000912057-02-007146 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20020221 EFFECTIVENESS DATE: 20020221 FILER: COMPANY DATA: COMPANY CONFORMED NAME: WALTER INDUSTRIES INC /NEW/ CENTRAL INDEX KEY: 0000837173 STANDARD INDUSTRIAL CLASSIFICATION: GEN BUILDING CONTRACTORS - RESIDENTIAL BUILDINGS [1520] IRS NUMBER: 133429953 STATE OF INCORPORATION: DE FISCAL YEAR END: 0531 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-83154 FILM NUMBER: 02555373 BUSINESS ADDRESS: STREET 1: 1500 N DALE MABRY HWY CITY: TAMPA STATE: FL ZIP: 33607 BUSINESS PHONE: 8138714811 MAIL ADDRESS: STREET 1: 1500 N DALE MABRY HWY STREET 2: 1500 NORTH MABRY HGWY CITY: TAMPA STATE: FL ZIP: 33607 FORMER COMPANY: FORMER CONFORMED NAME: HILLSBOROUGH HOLDINGS CORP DATE OF NAME CHANGE: 19910814 S-8 1 a2071587zs-8.txt FORM S-8 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 21, 2002 REGISTRATION NO. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ WALTER INDUSTRIES, INC. (Exact name of registrant as specified in its charter) DELAWARE 13-3429953 (State of other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 4211 W. BOY SCOUT BOULEVARD 33607 TAMPA, FLORIDA (Zip Code) (Address of principal executive offices)
WALTER INDUSTRIES EXECUTIVE DEFERRED COMPENSATION PLAN (Full title of the Plan) ------------------------ WILLIAM F. OHRT EXECUTIVE VICE PRESIDENT AND PRINCIPAL FINANCIAL OFFICER WALTER INDUSTRIES, INC. 4211 W. BOY SCOUT BOULEVARD TAMPA, FLORIDA 33607 (813) 871-4160 (Name, address, including zip code, and telephone number, including area code, of agent for service) ------------------------ COPY TO: STEVEN DELLA ROCCA, ESQ. Latham & Watkins 885 Third Avenue New York, New York 10022 (212) 906-1200 (212) 751-4864 (fax) ------------------------ CALCULATION OF REGISTRATION FEE
AMOUNT OF PROPOSED MAXIMUM PROPOSED MAXIMUM SHARES TO BE OFFERING PRICE AGGREGATE AMOUNT OF TITLE OF SECURITIES TO BE BE REGISTERED(1) REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE(2) n/a n/a n/a n/a None
(1) No shares of Walter Industries, Inc. capital stock are to be issued under the Plan. However, pursuant to Rule 416(c) of the Securities Act of 1933, as amended (the "Securities Act"), this Registration Statement covers an indeterminate amount of interests to be offered pursuant to the Plan. (2) Pursuant to Rule 457(h)(2) under the Securities Act, no fee is required with respect to the registration of plan interests. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PART I ITEM 1. PLAN INFORMATION Not required to be filed with this Registration Statement. ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION Not required to be filed with this Registration Statement. PART II ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed with the Securities and Exchange Commission (the "Commission") by Walter Industries, Inc., a Delaware corporation (the "Company"), are incorporated as of their respective dates in this Registration Statement by reference: A. The Company's Amended Annual Report on Form 10-K-405A filed January 28, 2002 (File No. 001-13711), for the fiscal year ended December 31, 2000 (amending the original Form 10-K filed March 20, 2001). B. The Company's Amended Quarterly Report on Form 10-Q/A filed January 28, 2002 (File No. 001-13711), for the quarterly period ended March 31, 2001 (amending the original Form 10-Q filed May 15, 2001). C. The Company's Amended Quarterly Report on Form 10-Q/A filed January 28, 2002 (File No. 001-13711), for the quarterly period ended June 30, 2001 (amending the original Form 10-Q filed August 14, 2001). D. The Company's Amended Quarterly Report on Form 10-Q/A filed January 28, 2002 (File No. 001-13711), for the quarterly period ended September 30, 2001 (amending the original Form 10-Q filed November 14, 2001). All documents filed by the Company or by the Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold are incorporated by reference in this Registration Statement and are a part hereof from the date of filing such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which is also or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. 1 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 145 of the General Corporation Law of the State of Delaware ("DGCL") provides that a corporation has the power to indemnify any director or officer, or former director or officer, who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) against the expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with the defense of any action by reason of being or having been directors or officers, if such person shall have acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, provided that such person had no reasonable cause to believe his conduct was unlawful, except that, if such action shall be in the right of the corporation, no such indemnification shall be provided as to any claim, issue or matter as to which such person shall have been judged to have been liable to the corporation unless and only to the extent that the Court of Chancery of the State of Delaware (the "Court of Chancery"), or any court in such suit or action was brought, shall determine upon application that, despite the liability judgment, but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the Court of Chancery or such other court shall deem proper. The Company's Certificate of Incorporation provides that the Company shall indemnify directors and officers made party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, including appeals, to the fullest extent permitted by the laws of the State of Delaware. Such indemnification shall continue after an individual ceases to be an officer or director and shall inure to the benefit of the heirs, executors and administrators of such person. The Company's Certificate of Incorporation also provides that a director of the Company shall not be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended. Article IV of the By-laws of the Company provides for indemnification of its officers and directors to the fullest extent permitted by Section 145 of the DGCL. Section 102(b)(7) of the DGCL provides that a Delaware corporation may eliminate or limit the personal liability of a director to a Delaware corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL relating to the unlawful payment of a dividend or an unlawful stock purchase or redemption or (iv) for any transaction from which the director derived an improper personal benefit. Article 6 of the Restated Certificate of Incorporation of the Company provides for the elimination of personal liability of its directors for monetary damages for breach of fiduciary duty as a director, except as otherwise provided by the DGCL. The Company has entered into a Directors and Officers Indemnification Agreement which provides that directors and officers shall be indemnified to the fullest extent permitted by applicable law and obligates the Company to indemnify the directors and officers of the Company (a) if any director or officer is or may become a party to any proceeding against all expenses reasonably incurred by such director or officer in connection with the defense or settlement of such proceeding, but only if such director or officer acted in good faith and in a manner which such director or officer reasonably believed to be in or not opposed to the best interests of the Company, and in the case of a criminal action or proceeding, in addition, only if such director or officer had no reasonable cause to believe 2 that his or her conduct was unlawful, (b) if a director or officer is or may become a party to any proceeding by or in the name of the Company to procure a judgment in its favor against all expenses reasonably incurred by such director or officer in connection with the defense or settlement of such proceeding, but only if such director or officer acted in good faith and in a manner which such director or officer reasonably believed to be in or not opposed to the best interests of the Company, except no indemnification for expenses need be made in respect of any claim in which such director or officer shall have been adjudged liable to the Company unless a court in which the proceeding is brought determines otherwise and (c) if a director or officer has been successful on the merits or otherwise in defense of any proceeding or claim. The Registration Rights Agreement dated as of March 17, 1995 and the Registration Rights Agreement dated as of September 12, 1995 between the Company and the shareholders named therein (the "Holders") each requires the Company, on the one hand, and the Holders referred to therein, on the other hand, under certain circumstances, to indemnify each other and, in the case of the Company's indemnification obligations, each other person who participates as an underwriter in an offering of Common Stock thereunder, and each other person who controls such parties and/or underwriters and their respective directors, officers, partners, agents and affiliates against certain liabilities, including liabilities under the Securities Act of 1933, incurred in connection with each registration of securities pursuant to such registration rights agreement. The indemnification rights conferred by the Certificate of Incorporation of the Company are not exclusive of any other right to which a person seeking indemnification may otherwise be entitled. The Company may also provide liability insurance for the directors and officers for certain losses arising from claims or charges made against them while acting in their capacities as directors or officers. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS A list of exhibits included as part of this Registration Statement is set forth on the Exhibit Index appearing elsewhere herein and is incorporated herein by reference. ITEM 9. UNDERTAKINGS (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply to information contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) 3 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"); that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's Annual Report pursuant to section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 4 SIGNATURES Pursuant to the requirements of the Securities Act the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tampa, State of Florida, on February 21, 2002. WALTER INDUSTRIES, INC. By: /s/ WILLIAM F. OHRT ----------------------------------------- William F. Ohrt Executive Vice President and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons on behalf of the registrant and in the capacities indicated as of February 21, 2002.
SIGNATURE TITLE --------- ----- * ------------------------------------------- Chairman of the Board of Directors Donald N. Boyce /s/ DON DEFOSSET ------------------------------------------- President and Chief Executive Don Defosset Officer (Principal Executive Officer) /s/ WILLIAM F. OHRT Executive Vice President and ------------------------------------------- Chief Financial Officer (Principal Financial William F. Ohrt Officer) /s/ CHARLES E. CAUTHEN ------------------------------------------- Senior Vice President Charles E. Cauthen (Principal Accounting Officer) Director * ------------------------------------------- Director Robert F. Amter * ------------------------------------------- Director Howard L. Clark, Jr. * ------------------------------------------- Director Perry Golkin * ------------------------------------------- Director James L. Johnson * ------------------------------------------- Director Scott C. Nuttall
5
SIGNATURE TITLE --------- ----- * ------------------------------------------- Director Wayne W. Robinson * ------------------------------------------- Director Neil A. Springer * ------------------------------------------- Director Michael T. Tokarz
*By /s/ WILLIAM F. OHRT -------------------------------------- William F. Ohrt ATTORNEY-IN-FACT
Pursuant to the requirements of the Securities Act of 1933, as amended, the Walter Industries Executive Deferred Compensation Plan has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tampa, State of Florida, on February 21, 2002. WALTER INDUSTRIES EXECUTIVE DEFERRED COMPENSATION PLAN By: /s/ WILLIAM F. OHRT ----------------------------------------- William F. Ohrt, as Plan Administrator, acting on behalf of the Company.
6 EXHIBIT INDEX 4(a) Amended and Restated Certificates of Incorporation of the Company (incorporated herein by reference to Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q, filed on January 14, 1999, File No. 001-13711). 4(c) Walter Industries Executive Deferred Compensation Plan 23(a) Consent of Independent Accountants. 24(a) Power of Attorney.
EX-4.(C) 3 a2071587zex-4_c.txt EXHIBIT 4(C) EXHIBIT 4(C) WALTER INDUSTRIES EXECUTIVE DEFERRED COMPENSATION PLAN EFFECTIVE AS OF JANUARY 1, 2002 WALTER INDUSTRIES EXECUTIVE DEFERRED COMPENSATION PLAN TABLE OF CONTENTS
ARTICLE TITLE PAGE - ------- ----- -------- I Definitions................................................. 3 II. Administration.............................................. 3 III. Eligibility & Participation................................. 4 IV. Deferral Elections.......................................... 4 V. Participation Account and Investment of Deferred Amounts.... 5 VI. Benefits Under the Plan..................................... 6 VII. Amendment and Termination................................... 8 VIII. Miscellaneous............................................... 8
2 WALTER INDUSTRIES EXECUTIVE DEFERRED COMPENSATION PLAN PURPOSE Walter Industries, Inc. (the "Company") hereby establishes the Walter Industries Executive Deferred Compensation Plan (the "Plan") effective January 1, 2002 ("Effective Date"), for a select group of personnel to ensure that the overall effectiveness of the Company's and its Related Employers' compensation program will attract, retain and motivate qualified personnel. The purpose of this Plan is to provide certain key 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. ARTICLE I DEFINITIONS (a) "Account" shall mean a Participant's Deferred Compensation Account as described in Article V. (b) "Board" or "Board of Directors" shall mean the board of directors of the Company or a Related Employer. (c) "Company" shall mean Walter Industries, Inc. and its successors. (d) "Participant" shall mean any employee of the Company or a Related Employer who is covered by this Plan as provided in Article III. (e) "Plan" shall mean the Walter Industries Deferred Compensation Plan hereby created and as it may be amended from time to time. (f) "Plan Administrator" shall mean the Company. (g) "Plan Year" shall mean the 12-month period ending on December 31. (h) "Related Employer" shall mean an affiliate of the Company that has elected to adopt the Plan and that the Company, in its sole discretion, allows to participate in the Plan. ARTICLE II 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 employees 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; 3 (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. ARTICLE III ELIGIBILITY & PARTICIPATION (a) ELIGIBILITY. The Company or a Related Employer, in its sole discretion, shall determine those employees eligible to participate in the Plan. Accordingly, an employee of the Company or a Related Employer who, in the opinion of the Company or a Related Employer based upon its then current guidelines, has contributed or is expected to contribute significantly to the growth and successful operations of the Company or its Related Employers and who meets any additional criteria for eligibility that the Company or a Related Employer, in its sole discretion, may adopt from time to time, will be eligible to become a Participant. (b) PARTICIPATION. An eligible employee shall become a Participant upon the timely filing of a deferral election form pursuant to Article IV. ARTICLE IV DEFERRAL ELECTIONS (a) DEFERRAL PROCEDURES. (1) Any Participant may elect to defer, for any calendar year, that amount 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 (A) within the 30 days of the Effective Date of the Plan, or (B) 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) Except as provided in subparagraph (4) below, a deferral election made with respect to a calendar year (or portion thereof) will be irrevocable once such calendar year (or portion thereof) has begun. 4 (4) (A) If a Participant suffers an unforeseen emergency (as defined in paragraph (d) 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 unforeseen 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 subparagraph (2) above effective as of the January 1 that next follows the effective date of the revocation of his deferral election under subparagraph (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 election under this Article IV shall be in writing and shall be on such form as may be approved by the Plan Administrator. ARTICLE V PARTICIPANT ACCOUNT AND INVESTMENT OF DEFERRED AMOUNTS (a) IN GENERAL. (1) Any compensation deferred pursuant to this Plan shall be recorded by the Plan Administrator in a Deferred Compensation Account maintained in the name of the Participant. The Deferred Compensation Account shall be credited with all amounts that have been deferred by the Participant during the Plan Year pursuant to Article IV, and such Account shall be charged from time to time with all amounts that are distributed to the Participant. (2) All amounts that are credited to a Participant's Account shall be credited solely for purposes of accounting and computation. A Participant shall not have any interest in or right to such Account at any time. (3) A Participant shall be at all times fully vested in his Deferred Compensation Account. (b) SUBJECT TO CLAIMS. The Plan constitutes an unsecured promise by the Company or a Related Employer to pay benefits in the future. Participants shall have the status of general unsecured creditors of the Company. Participants employed by a Related Employer shall have the status of general unsecured creditors of such Related Employer. The Plan is unfunded for Federal tax purposes and for purposes of Title I of the Employee Retirement Income Security Act of 1974. All amounts credited to a Participant's Account will remain the general assets of the Company or a Related Employer and shall remain subject to the claims of the Company's or a Related Employer's creditors until such amounts are distributed to the Participants. (c) CREDITING OF INTEREST. (1) The Plan Administrator shall allow a Participant to make a hypothetical allocation of the amounts credited to his Accounts among investment options/indices that the Plan Administrator shall make available from time to time. The Plan Administrator shall establish procedures regarding Participant investment allocations as are necessary, which procedures shall be communicated to the Participants. 5 (2) A Participant's Account shall be credited or debited, at least monthly, with gain or loss equal to the aggregate/weighted average return on the hypothetical investment options/indices selected by the Participant. The amount of such gain or loss shall be determined by the Plan Administrator and such determination shall be binding and conclusive. (d) VALUATION; ANNUAL STATEMENT. The value of a Participant's Account shall be determined by the Plan Administrator and the Plan Administrator may establish such accounting procedures as are necessary to account for the Participant's interest in the Plan. Each Participant's Account shall be valued as of the last day of each Plan Year or more frequently as determined by the Plan Administrator. The Plan Administrator shall furnish each Participant with an annual statement of his Account. (e) ESTABLISHMENT OF TRUST. (1) The Company and a Related Employer may establish one or more trusts substantially in conformance with the terms of the model trust described in Revenue Procedure 92-64 to assist in meeting its obligations to Participants under this Plan. Except as provided in paragraph (b) above and the terms of the trust agreement, any such trust or trusts shall be established in such manner as to permit the use of assets transferred to the trust and the earnings thereon to be used by the trustee solely to satisfy the liability of the Company in accordance with the Plan. (2) The Company or a Related Employer, in its sole discretion, and from time to time, may make contributions to the Trust. Unless otherwise paid by the Company or a Related Employer, all benefits under the Plan and expenses chargeable to the Plan shall be paid from the trust. (3) The powers, duties and responsibilities of the trustee shall be as set forth in the trust agreement and nothing contained in the Plan, either expressly or by implication, shall impose any additional powers, duties or responsibilities upon the trustee. ARTICLE VI BENEFITS UNDER THE PLAN (a) TIMING OF PAYMENT. The distribution of the amount credited to the Participant's Account shall be paid as soon as administratively practicable following the Participant's termination of employment with the Company or a Related Employer. (b) FORM OF BENEFIT PAYMENT. (1) A Participant shall elect one of the following forms of payment for his benefit (other than the death benefit) upon commencing participation in the Plan: (A) a lump sum, or (B) annual installments over a period of 5, 10 or 15 years. (2) In the event a Participant elects installment payments, each such payment shall be equal to the balance in the Participant's Account as of the end of the valuation date immediately 6 preceding the date of payment, divided by the number of payment years remaining (the "Factor"). For example:
5 YEAR INSTALLMENT 10 YEAR INSTALLMENT 15 YEAR INSTALLMENT - -------------------------------- ------------------- ------------------- PAYMENT FACTOR PAYMENT FACTOR PAYMENT FACTOR ------- -------- -------- -------- -------- -------- 1 5 1 10 1 15 2 4 2 9 2 14 3 3 3 8 3 13 4 2 4 7 4 12 5 1 5 6 5 11 6 5 6 10 7 4 7 9 8 3 8 8 9 2 9 7 10 1 10 6 11 5 12 4 13 3 14 2 15 1
(3) At least 13 months prior to the distribution of benefits, the Participant may, subject to the approval of the Plan Administrator, modify his election as to the form of benefit payment. (4) (A) (i) Notwithstanding the foregoing, as of each election to defer under paragraph (a) of Article IV, a Participant may elect to receive a distribution of such deferred amounts (plus earnings or losses thereon) in a lump sum as of a specified future calendar year date. The date of distribution elected by the Participant shall be at least five full calendar years following the Participant's deferral election under this subparagraph. (ii) Any distribution pursuant to this subparagraph shall be made as of January 1 of the calendar year selected by the Participant for the receipt of his distribution. (iii) A Participant may modify each election made pursuant to this subparagraph (4) to provide for a later calendar year distribution date; provided, however, that only one such modification per election may be made and such modification must be made at least 13 months prior to the original specified calendar year date of distribution. (B) If the Participant terminates employment with the Company prior to the distribution date or dates elected in accordance with subparagraph (4)(A) above, then any such election or elections under subparagraph (4)(A) shall be null and void and the Participant's benefit shall be distributed in accordance with the otherwise applicable provisions of the Plan. (c) PAYMENT TO BENEFICIARY. (1) Notwithstanding anything in this Plan to the contrary, if the Participant dies before he has commenced receiving benefits under the Plan, the death benefit shall be paid to his beneficiary or beneficiaries designated to receive such benefits in a lump sum. (2) If the Participant dies after benefits have commenced but before he has received all of his benefits under the Plan, all unpaid amounts shall be paid to his beneficiary or beneficiaries in a lump sum. 7 (3) A designation of beneficiaries shall be made 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. (d) ACCELERATED DISTRIBUTION FOR UNFORSEEN EMERGENCY. (1) If a Participant suffers an unforseen emergency, the Plan Administrator may, in its discretion, accelerate the distribution of all or a portion of the amount of his Deferred Compensation Account. Any such accelerated distribution shall be made in a lump sum as soon as administratively practicable following a determination that the Participant has incurred an unforseen emergency. The amount of any such distribution shall be limited to the amount necessary to satisfy the emergency need, including any amounts necessary to pay any federal, state or local income taxes reasonably anticipated to result from the distribution. (2) For this purpose, the term "unforseen emergency" shall mean a severe financial hardship resulting from the Participant's illness or accident or that of the Participant's spouse and/or dependents, an extraordinary and unforeseeable loss of the Participant's property due to casualty as a result of events beyond the Participant's control, or other similar events beyond the control of the Participant, which events cannot reasonably be relieved by reimbursement (by insurance or otherwise), liquidation of the Participant's assets (to the extent the liquidation would not in itself cause a financial hardship) or cessation of deferrals under the Plan. (e) ACCOUNTING PROCEDURES. The Plan Administrator shall establish such accounting procedures as are necessary to implement the provisions of this Article. ARTICLE VII AMENDMENT AND TERMINATION (a) IN GENERAL. The Plan may be amended at any time, or from time to time, by the Company, and the Plan may be terminated at any time by the Company. Any such amendment or termination shall be ratified and approved by the Company's Board of Directors or a Committee of the Board authorized to act on behalf of the Board. (b) EFFECT OF AMENDMENT OR TERMINATION. No such amendment or termination shall affect the rights of any Participant with respect to any deferral credited to the Account of a Participant prior to such amendment or termination. Upon termination, the Participants (or their beneficiaries) shall be paid the balance of their Account in a lump sum. ARTICLE VIII MISCELLANEOUS (a) PAYMENTS TO MINORS AND INCOMPETENTS. If the Plan Administrator receives satisfactory evidence that a person who is entitled to receive any benefit under the Plan, at the time such benefit becomes available, is a minor or is physically unable or mentally incompetent to receive such benefit and to give a valid release therefore, and that another person or an institution is then maintaining or has custody of such person, and that no guardian committee, or other representative of the estate of such person shall have been duly appointed, the Plan Administrator may authorize payment of such benefit otherwise payable to such person to such other person or institution; and the release of such other person or institution shall be a valid and complete discharge for the payment of such benefit. 8 (b) PLAN NOT A CONTRACT OF EMPLOYMENT. The Plan shall not be deemed to constitute a contract between the Company or a Related Employer and any Participant, nor to be consideration for the employment of any Participant. Nothing in the Plan shall give a Participant the right to be retained in the employ of the Company or a Related Employer; all Participants shall remain subject to discharge or discipline as employees to the same extent as if the Plan had not been adopted. (c) NO INTEREST IN ASSETS. Nothing contained in the Plan shall be deemed to give any Participant any equity or other interest in the assets, business or affairs of the Company or a Related Employer. No Participant in the Plan shall have a security interest in assets of the Company or a Related Employer used to make contributions or pay benefits. (d) RECORDKEEPING. Appropriate records shall be maintained for the Plan, subject to the supervision and control of the Plan Administrator. (e) NON-ALIENATION OF BENEFITS. No benefit under the Plan shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any attempt to do so shall be void. No benefit under the Plan shall in any manner be liable for or subject to the debts, contracts, liabilities, engagements or torts of any person. If any person entitled to benefits under the Plan shall become bankrupt or shall attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber or charge any benefit under the Plan, or if any attempt shall be made to subject any such benefit to the debts, contracts, liabilities, engagements or torts of the person entitled to any such benefit, except as specifically provided in the Plan, then such benefits shall cease and terminate at the discretion of the Plan Administrator. The Plan Administrator may then hold or apply the same or any part thereof to or for the benefit of such person or any dependent or beneficiary of such person in such manner and proportions as it shall deem proper. (f) STATE LAW. This Plan shall be construed in accordance with the laws of Florida. (g) CORPORATE SUCCESSORS. The Plan shall not be automatically terminated by a transfer or sale of assets of the Company or a Related Employer or by the merger or consolidated of the Company or a Related Employer into or with any other corporation or other entity, but the Plan shall be continued after such sale, merger or consolidation only if and to the extent that the transferee, purchaser or successor entity agrees to continue the Plan. In the event that the Plan is not continued by the transferee, purchaser or successor entity, then the Plan shall terminate subject to the provisions of Article VII. (h) LIABILITY LIMITED. In administering the Plan, neither the Plan Administrator nor any officer, director or employee thereof, shall be liable for any act or omission performed or omitted, as the case may be, by such person with respect to the Plan; provided, that the foregoing shall not relieve any person of liability for gross negligence, fraud or bad faith. The Plan Administrator, its officers, directors and employees shall be entitled to rely conclusively on all tables, valuations, certificates, opinions and reports that shall be furnished by any actuary, accountant, trustee, insurance company, consultant, counsel or other expert who shall be employed or engaged by the Plan Administrator in good faith. (i) PROTECTIVE PROVISIONS. Each Participant shall cooperate with the Plan Administrator by furnishing any and all information requested by the Plan Administrator in order to facilitate the payment of benefits hereunder, taking such physical examinations as the Plan Administrator may deem necessary and taking such other relevant action as may be requested by the Plan Administrator. If a Participant refuses so to cooperate or makes any material misstatement of information or nondisclosure of medical history, then no benefits will be payable hereunder to such Participant or his beneficiary, provided that, in the Plan Administrator's sole discretion, benefits may be payable in an amount reduced to compensate the Company or a Related Employer for any loss, cost, damage or expense suffered or incurred by the Company or a Related Employer as a result in any way of such action, misstatement or nondisclosure. 9 IN WITNESS WHEREOF, the Company has caused this Plan to be executed by its duly authorized officers on this day of , 2002. WALTER INDUSTRIES, INC. By: ----------------------------------------- Its: ----------------------------------------- "COMPANY"
10 EX-23.(A) 4 a2071587zex-23_a.txt EXHIBIT 23(A) EXHIBIT 23(A) CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 31, 2001, except for Note 2, which is as of January 25, 2002 relating to the financial statements and financial statement schedules of Walter Industries, Inc., which appears in Walter Industries, Inc.'s Annual Report on Form 10-K/A for the seven months ended December 31, 2000. /s/ PricewaterhouseCoopers LLP - --------------------------------------------- PricewaterhouseCoopers LLP Tampa, Florida February 21, 2002 EX-24.(A) 5 a2071587zex-24_a.txt EXHIBIT 24(A) EXHIBIT 24(A) POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and appoints William F. Ohrt his true and lawful attorney-in-fact and agent, with full power of substitution and reimbursement, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments or supplements to this Registration Statement and to file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing necessary or appropriate to be done with respect to this Registration Statement or any amendments or supplements hereto in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities as of February 21, 2002.
SIGNATURE TITLE --------- ----- /s/ DONALD N. BOYCE ------------------------------------------- Chairman of the Board of Directors Donald N. Boyce /s/ ROBERT F. AMTER ------------------------------------------- Director Robert F. Amter /s/ HOWARD L. CLARK, JR. ------------------------------------------- Director Howard L. Clark, Jr. /s/ PERRY GOLKIN ------------------------------------------- Director Perry Golkin /s/ JAMES L. JOHNSON ------------------------------------------- Director James L. Johnson /s/ SCOTT C. NUTTALL ------------------------------------------- Director Scott C. Nuttall /s/ WAYNE W. ROBINSON ------------------------------------------- Director Wayne W. Robinson /s/ NEIL A. SPRINGER ------------------------------------------- Director Neil A. Springer /s/ MICHAEL T. TOKARZ ------------------------------------------- Director Michael T. Tokarz
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