Exhibit 10 (s)
TASTY BAKING
COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN AGREEMENT
AMENDED AND
RESTATED
EFFECTIVE AS OF JANUARY 1,
2009
THIS AMENDED AND RESTATED AGREEMENT, entered into
as of the 23rd day of December, 2008, by and between Tasty Baking
Company, a Pennsylvania corporation (hereinafter referred to as
“Employer”) and Charles P. Pizzi (hereinafter referred
to as “Employee”).
W I T N E S S E T H
:
WHEREAS, the Employer and Employee entered into a
Supplemental Executive Retirement Plan Agreement (the
“Agreement”) as of October 7, 2002, and further amended
and restated the Agreement as of August 19, 2004 and July 27, 2006,
respectively; and
WHEREAS, the Employer and Employee desire to
amend the Agreement so that it conforms to the requirements of
Section 409A of the Internal Revenue Code of 1986, as amended and
the final regulations promulgated thereunder (the
“Code”).
NOW, THEREFORE, the parties hereto, intending to
be legally bound, hereby amend and restate the Agreement, effective
as of January 1, 2009, as follows:
ARTICLE
I: CONTRIBUTIONS
1.
Initial Contribution Credit . Effective as of
September 30, 2004, the Employer shall credit an amount equal to
$172,500 to an unfunded notional account on behalf of
Employee.
2.
Subsequent Contribution Credits . As of the end
of each month subsequent to September 30, 2004, the Employer shall
credit a contribution to such notional account on behalf of
Employee in an amount equal to 39% of the base salary and bonus
paid by the Employer to Employee during such month. In
no event shall any contributions be credited to such notional
account on behalf of Employee after Employee attains age
67.
3.
Interest Credit . As of the end of each month
subsequent to September 30, 2004, the Employer shall credit
interest to such notional account an amount equal to the product of
(a) 1/12 of the interest crediting rate for the calendar year and
(b) Employee’s account balance at the beginning of the
month.
4.
Interest Crediting Rate . The interest-crediting
rate for a calendar year will be Moody’s Aa rate for
corporate bonds as of the last business day preceding the beginning
of the calendar year.
5.
Change of Control . In the event the Employer
undergoes a “change of control,” as defined in
Employee’s Employment Agreement with the Employer, the
Employer guarantees that three additional annual contribution
credits, as determined under paragraph 2, above based upon
Employee’s base salary and bonus for the calendar year
immediately prior to the calendar year in which he terminates
employment following a change of control, shall be credited to
Employee’s notional account if and only to the extent that
(a) Employee does not continue to perform service for the Employer
for at least 36 months after the change of control and (b) Employee
does not receive at least 36 months of contribution credits for
such service under paragraph 2, above. In no event shall
the guarantee of additional annual contribution credits under this
paragraph be applicable for any calendar year that Employee
continues to perform service for the Employer after the year in
which Employee attains age 62.
6.
Benefits Under this Agreement . Benefits shall be
paid to Employee pursuant to the notional account established by
the Employer for the benefit of Employee in accordance with this
Agreement and shall be in lieu of and not supplementary to the
benefits accrued by Employee under the terms of this Agreement as
in effect prior to August 19, 2004.
ARTICLE
II: PAYMENT OF BENEFITS
1.
Retirement . Subject to Article X, Section 3, in
the event that Employee separates from service with the Employer,
his entire notional account balance, valued as of the end of the
month preceding payment, shall be paid to him in a lump sum on the
first business day of the month following the date of his
separation from service.
2.
Disability . Subject to Article X, Section 4, In
the event that Employee separates from service with the Employer as
a result of being “totally disabled,” within the
meaning of and determined under the Employer’s long-term
disability program, his entire notional account balance, valued as
of the end of the month preceding payment, shall be paid to him in
a lump sum on the first business day of the month following the
date of the determination that he is totally disabled.
3.
Death . In the event that Employee dies prior to
receiving any benefits pursuant to this Agreement, his entire
notional account balance, valued as of the end of the month
preceding payment, shall be paid in a lump sum to his surviving
spouse on the first business day of the month following the date of
his death. In the event Employee is unmarried on the
date of his death, no payment shall be due under this
Agreement.
ARTICLE
III: VESTING/FORFEITURE OF BENEFITS
Employee shall be immediately and fully vested in
all amounts credited to his notional account pursuant to this
Agreement on or after September 30,
2004. Notwithstanding the preceding sentence,
Employee’s entire notional account balance shall be forfeited
if his employment is terminated by the Employer for
“cause”, as defined in subparagraphs (i), (ii) or (iii)
of Section 5(b) of Employee’s Employment Agreement with the
Employer. No other termination of employment of Employee
under his Employment Agreement with the Employer shall result in a
forfeiture of any amounts payable to him under this Agreement
except as otherwise expressly provided herein.
ARTICLE
IV: TERMINATION OF EMPLOYMENT
This Agreement shall not in any way constitute an
employment agreement between Employee and Employer and shall in no
way obligate Employer to continue the employment of Employee with
Employer. This Agreement shall not limit the right of
Employer to terminate Employee’s employment with Employer in
accordance with Employee’s employment agreement with the
Employer.
ARTICLE
V: ASSIGNMENT
The right of Employee to the payment of benefits
under this Agreement shall not be assigned, transferred, pledged,
or encumbered. Further, said right shall not be subject
to devise or bequest nor shall it survive the death of Employee for
any reason or circumstance, except
