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DEL MONTE CORPORATION SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN (Fourth Restatement) As amended and restated effective January 1, 2009

Addendum or Modifications

DEL MONTE CORPORATION SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN (Fourth Restatement) As amended and restated effective January 1, 2009 | Document Parties: DEL MONTE FOODS CO | Del Monte Corporation | H J Heinz Company, Del Monte Foods Company, SKF Foods Inc | Heinz Group You are currently viewing:
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DEL MONTE FOODS CO | Del Monte Corporation | H J Heinz Company, Del Monte Foods Company, SKF Foods Inc | Heinz Group

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Title: DEL MONTE CORPORATION SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN (Fourth Restatement) As amended and restated effective January 1, 2009
Governing Law: California     Date: 3/4/2009
Industry: Food Processing     Sector: Consumer/Non-Cyclical

DEL MONTE CORPORATION SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN (Fourth Restatement) As amended and restated effective January 1, 2009, Parties: del monte foods co , del monte corporation , h j heinz company  del monte foods company  skf foods inc , heinz group
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Exhibit 10.4

DEL MONTE CORPORATION

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

(Fourth Restatement)

As amended and restated effective January 1, 2009


DEL MONTE CORPORATION

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

TABLE OF CONTENTS

 

 

  

 

  

Page

ARTICLE 1     Definitions

  

1

Section 1.1.

  

Actively Employed

  

1

Section 1.2.

  

Actuarial Equivalent Value

  

1

Section 1.3.

  

Additional Benefits Plan

  

2

Section 1.4.

  

Affiliate

  

2

Section 1.5.

  

Annuity Starting Date

  

2

Section 1.6.

  

Applicable Mortality Table

  

2

Section 1.7.

  

Beneficiary

  

2

Section 1.8.

  

Board

  

2

Section 1.9.

  

Cause

  

2

Section 1.10.

  

Claimant

  

3

Section 1.11.

  

Code

  

3

Section 1.12.

  

Committee

  

3

Section 1.13.

  

Compensation

  

3

Section 1.14.

  

Compensation Credits

  

4

Section 1.15.

  

Corporation

  

4

Section 1.16.

  

Del Monte Foods Company

  

4

Section 1.17.

  

Effective Date

  

4

Section 1.18.

  

Employer

  

4

Section 1.19.

  

Excess Plan

  

4

Section 1.20.

  

Final Average Compensation

  

5

Section 1.21.

  

Gross Benefit

  

5

Section 1.22.

  

Heinz Participant Preservation Arrangement

  

5

Section 1.23.

  

Interest Factor

  

5

Section 1.24.

  

Net Benefit

  

5

Section 1.25.

  

Participant

  

5

Section 1.26.

  

Plan

  

5

Section 1.27.

  

Plan A

  

5

Section 1.28.

  

Plan Administrator

  

5

Section 1.29.

  

Plan Year

  

5

Section 1.30.

  

PRA

  

5

Section 1.31.

  

Retirement Contribution Account

  

6

Section 1.32.

  

Section 417 Rate

  

6

Section 1.33.

  

Service

  

6

Section 1.34.

  

Specified Employee

  

6

Section 1.35.

  

Termination of Employment

  

6

ARTICLE 2     Participation and Eligibility for Benefits

  

6

Section 2.1.

  

Participation

  

6

Section 2.2.

  

Eligibility for Benefits

  

7

Section 2.3.

  

Death

  

7

 

i


ARTICLE 3     Benefits

  

7

Section 3.1.

  

Amount of Benefits

  

7

Section 3.2.

  

Payment of Benefits

  

9

Section 3.3.

  

Benefits in Cases of Reemployment

  

9

ARTICLE 4     Administration and Authority

  

10

Section 4.1.

  

Corporation and Board of Directors

  

10

Section 4.2.

  

Committee; Organization

  

10

Section 4.3.

  

Powers and Responsibility

  

11

Section 4.4.

  

Expenses

  

13

Section 4.5.

  

Indemnity of Committee

  

13

ARTICLE 5     Amendment and Termination

  

13

Section 5.1.

  

Right to Terminate

  

13

Section 5.2.

  

Amendment

  

14

ARTICLE 6     Miscellaneous

  

14

Section 6.1.

  

Headings

  

14

Section 6.2.

  

Unfunded Plan

  

14

Section 6.3.

  

Authorization for Trust

  

14

Section 6.4.

  

No Employment Rights

  

14

Section 6.5.

  

Benefits Not Assignable or Transferable

  

14

Section 6.6.

  

Laws Applicable

  

14

Section 6.7.

  

FICA and Other Taxes

  

15

Section 6.8.

  

Acceleration of Payment

  

15

Section 6.9.

  

Special Rules for Delayed Payment

  

15

ARTICLE 7     Claims Procedure

  

16

Section 7.1.

  

Filing of a claim for benefits

  

16

Section 7.2.

  

Notification to claimant of decision

  

16

Section 7.3.

  

Appeal Process

  

17

Section 7.4.

  

Decision on Appeal

  

17

Section 7.5.

  

Effect of Extensions

  

17

Schedule A     Gross Benefit Based on Service and Final Average Compensation (FAC)

  

1

 

ii


DEL MONTE CORPORATION

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

DEL MONTE CORPORATION, a Delaware corporation, adopted the “Supplemental Executive Retirement Plan for Former Employees of the Heinz Group” (the “Heinz Plan”), effective as of December 20, 2002, in order to compensate eligible executive employees for retirement benefits which cannot be paid under the Corporation’s qualified plans because of statutory limitations and to aid in the retention of such employees and to comply with the terms of the Agreement and Plan of Merger dated as of June 12, 2002, among H. J. Heinz Company, Del Monte Foods Company, SKF Foods Inc. and the Corporation. Effective as of January 1, 2005, Del Monte Corporation has amended and restated the Heinz Plan, re-named the Heinz Plan as the “Del Monte Corporation Supplemental Executive Retirement Plan” (the “Plan”), expanded the group of eligible employees and adjusted for offsets for other benefits paid. Effective as of June 1, 2006, Del Monte Corporation has amended and restated the Plan to allow participation by otherwise eligible individuals who are employed by subsidiaries of the Corporation, clarify the definition of “service,” and eliminate the December 20, 2007 vesting requirement for employees who are terminated without cause in connection with the Transformation Plan announced by Del Monte Foods Company on June 22, 2006.

The Plan is intended to be “unfunded” and maintained “primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees” for purposes of ERISA. Accordingly, the Plan is not intended to be covered by Parts 2 through 4 of Subtitle B of Title I of ERISA. The existence of any trust fund as may be established from time to time is not intended to change this characterization of the Plan.

Compliance

This Plan is intended to comply with the American Jobs Creation Act of 2004 and new Internal Revenue Code Section 409A and the regulations and guidance thereunder from and after January 1, 2005. This Plan was operated in good faith compliance in 2005, 2006, 2007 and 2008 in compliance with Notice 2005-1 and subsequent notices of transition relief under Code Section 409A. This Plan is amended and restated as of January 1, 2009.


ARTICLE 1

Definitions

Unless otherwise required by the context, capitalized terms used herein shall have the meanings set forth in this Article 1. Any capitalized term not specifically defined herein shall have the meaning set forth in the PRA.

Section 1.1. Actively Employed shall mean an Employee on the Corporation’s active payroll, including Employees on approved leaves of absence, who have not had a Termination of Employment.

Section 1.2. Actuarial Equivalent Value shall mean a benefit or amount of equivalent value determined as follows:

(a) For the purpose of converting an annuity in one form to any other form of annuity, an interest rate of 8 % and the UP-84 Mortality Table is used.

(b) For the purpose of determining a lump sum present value of an annuity benefit or other lump sum amount:

 

 

(i)

The lump sum present value of a Participant’s benefit based on his PRA Credit Balance or other cash balance pension plan is an amount equal to the Credit Balance (or cash balance plan account balance) as of the Valuation Date for such date, and if such date is not the same date as used under this Plan, increased as described in Section 3.1(b)(ii) for each month from such date to the determination date under this Plan.

 

 

(ii)

The lump sum present value of a Participant’s defined contribution plan benefit is the account balance as of the determination date for purposes of determining the benefit under this Plan or, if frozen or otherwise determined prior to such date, the account balance as of such date increased as described in Section 3.1(b)(ii) to the Plan.

 

 

(iii)

The lump sum present value of an annuity is an amount equal to the lump sum present value of the benefit expressed as an Actuarially Equivalent Single Life Annuity payable at Normal Retirement Date and present valued using the Section 417 Rate and Applicable Mortality Table determined for the first day of the Plan Year in which the determination date for this Plan occurs.

(c) For all other purposes and where not specifically provided otherwise, an interest rate of 8% and the UP-84 Mortality Table are used.

 

1


Section 1.3. Additional Benefits Plan shall mean the Del Monte Corporation Additional Benefits Plan, as amended from time to time, or any successor plan thereto with respect to any benefit under that plan based on a defined benefit plan formula. Effective as of January 1, 2005, the Del Monte Corporation Supplemental Benefits Plan was merged into the Additional Benefits Plan so that all excess benefits would be paid from a single plan. The time and form of benefits provided under the Additional Benefits Plan are the same as provided under this Plan.

Section 1.4. Affiliate shall mean as of any date, (i) the Corporation, and (ii) any company, person or organization which, on such date, (A) is a member of the same controlled group of corporations (within the meaning of Code §414(b)) as is the Corporation; (B) is a trade or business (whether or not incorporated) which controls, is controlled by or is under common control with [within the meaning of Code §414(c)] the Corporation; (C) is a member of an affiliated service group [as defined in Code §414(m)] which includes the Corporation; or (D) is required to be aggregated with the Corporation pursuant to regulations promulgated under Code §414 (0).

Section 1.5. Annuity Starting Date shall mean the first day of the month following the Participant’s death or Termination of Employment.

Section 1.6. Applicable Mortality Table shall mean the mortality table prescribed in Rev. Rul. 2001-62

Section 1.7. Beneficiary shall mean the person or persons designated by the Participant to receive any death benefit paid under Section 3.1(c) of the Plan as set forth on a form filed with the Plan Administrator or, in the absence of such form, the Participant’s Beneficiary designated under PRA or, in the absence of a PRA Beneficiary, the Beneficiary designated under the Participant’s Del Monte life insurance beneficiary form or, in the absence of a life insurance Beneficiary, pursuant to the descent and distribution laws of the Participant’s state of residence.

Section 1.8. Board shall mean the Board of Directors of the Corporation or its duly appointed delegate or delegates.

Section 1.9. Cause shall mean

(a) (i) the same definition for “Cause” set forth in any employment agreement between the Participant and the Corporation in effect when the event(s) occur, or, in the absence of such an employment agreement, any of the following: (ii) any act of theft, misappropriation, embezzlement, intentional fraud or similar conduct by the Participant involving the Corporation or any Affiliate; (iii) the conviction or the plea of nolo contendere or the equivalent in respect of a felony involving an act of dishonesty, moral turpitude, deceit or fraud by the Participant; (iv) any damage of a material nature to the business or property of the Corporation or any Affiliate caused by the Participant’s willful or grossly negligent conduct; or (v) the Participant’s failure to act in accordance with any specific lawful instructions given to Participant in connection with the performance of his duties for the Corporation or any Affiliate.

 

2


(b) Participant shall be deemed to have been terminated for Cause (i) on the date and as determined by the Board, if Participant is employed by the Corporation pursuant to a written employment agreement, or (ii) on the date and as determined by the Plan Administrator for all other Participants. The designation of termination for Cause by the Plan Administrator under this Plan shall not be used for any other purpose and shall not be used against either the Corporation or any Participant.

Section 1.10. Claimant shall have the definition set forth in Article 7.

Section 1.11. Code shall mean the Internal Revenue Code of 1986 and the regulations promulgated thereunder, as amended from time to time.

Section 1.12. Committee shall mean the Corporation’s “Del Monte Corporation Compensation and Employee Benefits Committee of the Board of Directors.”

Section 1.13. Compensation shall mean:

(a) “Compensation” includes basic salary, overtime, shift differential, commissions, sales bonuses paid in cash, plus amounts deferred under qualified cash or deferred arrangements, such as before-tax contributions to plans sponsored by the Employer through employee benefit plans maintained under Code Sections 401(k) and 125. Compensation does not include awards under the Employer’s long term incentive or commendation award program plans, any amounts realized on account of the award, exercise or sale of Del Monte Foods Company stock or its equivalent under Employer compensation or incentive programs involving a stock-related award; Employer contributions (other than contributions on account of employee elections to defer salary under Code Sections 401(k) or 125 or 132(f)) under any employee benefit plan, including any savings plan, bonus or other awards payment of which has been deferred, severance payments unless made in the form of salary continuation and prior to the date of termination of employment, moving expenses, housing differential, lump sum vacation payments in lieu of taking vacation, and any amounts of additional W-2 income representing taxable employee benefits and corresponding Employer payments of additional withholding on taxable employee benefits (commonly referred to as “grossed up compensation”). Compensation is adjusted as described in subsections (b), (c) and (d) below. For a Participant who participated in the Heinz Participant Preservation Arrangement, Compensation prior to December 20, 2002 is maintained for the applicable Participant on a schedule maintained by the Plan Administrator.

(b) Compensation shall include any amounts excluded under the PRA by reason of Code sections 401(a)(17) and 415.

(c) For any Annual Incentive Plan bonus awarded to a Participant, whether the amount is paid in cash or deferred, Compensation shall include such amount in the Plan Year that awards are paid generally to employees who have not deferred any bonus amount.

(d) Compensation shall not include any amount of compensation, paid or deferred, attributable to fringe benefits (including, without limitation, car allowances and the value of any insurance benefit), perquisites, sign-on bonuses, or other special type of bonus.

 

3


Section 1.14. Compensation Credits shall mean Compensation, but excluding amounts described in Section 1.13(b) and (c), of the Participant for a calendar month multiplied by the Accruing Factor. The Accruing Factor is a percentage of monthly Compensation as follows:

 

Participant Age

  

% of Monthly
Compensation

 

Below age 30

  

3

%

At least 30 but below 35

  

4

%

At least 35 but below 40

  

5

%

At least 40 but below 45

  

6

%

At least 45 but below 50

  

8

%

At least 50 but below 55

  

10

%

At least 55 but below 60

  

11

%

At least 60 but below 65

  

12

%

Age 65 and over

  

13

%

(a) Participant Age is attained age as of the end of the calendar month.

(b) The Compensation Credit is rounded to the nearest whole cent.

Section 1.15. Corporation shall mean Del Monte Corporation, a Delaware corporation, or any successor thereto.

Section 1.16. Del Monte Foods Company shall mean Del Monte Foods Company, a Delaware corporation.

Section 1.17. Effective Date shall mean the effective date of this amendment and restatement, January 1, 2009.

Section 1.18. EBC shall mean the Del Monte Corporation Employee Benefits Committee.

Section 1.19. Employer shall mean the Corporation and any Affiliate of the Corporation.

Section 1.20. Excess Plan shall mean the Corporation’s “Del Monte Corporation Employees Retirement and Savings Excess Plan,” as amended from time to time, under which an account is maintained for certain Participants which was frozen, other than for earnings, from and after December 31, 2004.

 

4


Section 1.21. Final Average Compensation shall mean the average annual Compensation of a Participant during the five (5) highest compensated years of the Participant’s last ten (10) years of Service, or of the Participant’s entire Service if Service is less than five (5) years. If a Participant has five (5) or more, but fewer than ten (10) years of Service, the five (5) highest compensated years of the Participant’s entire period of Service shall be used. To the extent needed to determine the five (5) highest compensated years, Compensation determined in the Heinz Participant Preservation Arrangement may be used. Annual Compensation shall be determined on the basis of a calendar year.

Section 1.22. Gross Benefit shall have the definition set forth in Article 3, Section 3.1.

Section 1.23. Heinz Participant shall mean an employee who was a participant in the Plan immediately prior to December 20, 2002 and is identified on a list maintained by the Committee.

Section 1.24. Heinz Participant Preservation Arrangement shall mean the data maintained by the Plan Administrator with respect to eligible employees who were participants in the Plan immediately prior to the December 20, 2002 original effective date of the Plan and their compensation with respect to this Plan for periods prior to December 20, 2002.

Section 1.25. Interest Factor shall mean, for a given month from and after June 1, 2001, the sum of (i) the annual rate of the 6-month Treasury bill for that given month, plus (ii) 1.5%, that sum (iii) divided by 12 to produce a monthly rate as of the first day of such given month; provided that for each Plan Year the effective annual rate for that Plan Year shall not be less than 4.5%. The 6-month Treasury bill rate for a given calendar month will be determined based on the rate published in the Federal Reserve Bulletin H.15 in the immediately preceding month as the rate for 6-month Treasury bills for the second preceding month.

Section 1.26. Net Benefit shall have the definition set forth in Article 3, Section 3.1.

Section 1.27. Participant shall have the definition set forth in Article 2.

Section 1.28. Plan shall mean the “Del Monte Corporation Supplemental Executive Retirement Plan”, formerly known as the “Del Monte Corporation Supplemental Executive Retirement Plan for Former Employees of the Heinz Group”, as set forth herein and as amended from time to time.

Section 1.29. Plan A shall mean the “Employees’ Retirement System of H. J. Heinz Company (“Plan A”) for Salaried Employees,” as in effect immediately prior to December 20, 2002, as sponsored by H. J. Heinz Company.

Section 1.30. Plan Administrator shall have the definition set forth in Article 4.

Section 1.31. Plan Year shall mean a calendar year.

Section 1.32. PRA shall mean the “Del Monte Corporation Retirement Plan for Salaried Employees,” as in effect from time to time.

 

5


Section 1.33. Retirement Contribution Account shall mean the separate Retirement Contribution Account maintained under the Del Monte Savings Plan as of December 31, 2004 with respect to profit sharing contributions and which includes the Retirement Savings Account for any Participant which was transferred from the “H. J. Heinz Company Employees Retirement and Savings Plan” to the Del Monte Savings Plan on or about February 2004.

Section 1.34. Section 417 Rate shall mean the annual interest rate on 30-year Treasury securities (constant maturities) applicable for the month containing the Annuity Starting Date (or for any other month, as applicable) as specified by the Internal Revenue Service in revenue rulings, notices or other guidance published in the Internal Revenue Bulletin for the second month preceding the month for which the Annuity Starting Date or other date is determined.

Section 1.35. Service shall mean the Period of Service under PRA for vesting purposes and the years of service identified for any Participant listed in the Heinz Participant Preservation Arrangement but only to the extent not included in the Period of Service under PRA; provided, that Service shall not include any Period of Severance nor any Period of Service that is recognized by PRA for vesting purposes as past service credit with an non-affiliated employer or predecessor employer (“Prior Employer”) unless liabilities for such service from the Prior Employer’s qualified plan have been transferred to PRA or another pension plan of the Corporation and there is a reduction under Section 3.1(b)(vi) of this Plan on account of such liability; provided that no such service shall be credited under this Plan until the Participant has completed three (3) Years of Service with the Employer at the Vice President grade or higher, without regard to any service with a Prior Employer or the Employer.

Section 1.36. Specified Employee means a Participant who is a “key employee” as defined for purposes of Code Section 416(i)(1)(A)(i), (ii), or (iii) (applied in accordance with the regulations thereunder and disregarding Section 416(i)(5) of the Code), of the Corporation or its Affiliates. If a person is a Specified Employee as of December 31 of the preceding Plan Year, he or she is treated as a Specified Employee for the 12-month period beginning on April 1 of the Plan Year. For purposes of this Section 1.36, the term “compensation” will be defined in accordance with Code Reg. §1.409A-1(i)(2), applied on a consistent basis for each period. Whether an individual is a Specified Employee will be determined in accordance with the requirements of Code Section 409A and the final regu


 
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