Exhibit 4.1
NASH FINCH COMPANY
DIRECTOR DEFERRED COMPENSATION PLAN
1.
Description
.
1.1
Name . The name of the Plan is the “Nash Finch
Company Director Deferred Compensation Plan.”
1.2
Purpose . The purpose of the Plan is to provide each
Qualified Director with the opportunity to defer receipt of
Director Cash Compensation through credits to his or her Share
Account or Cash Account.
1.3
Type . The Plan is maintained primarily for the
purpose of providing deferred compensation for Qualified Directors
and is intended to be unfunded for tax purposes. The Plan is
intended to satisfy in form and operation the requirements of Code
section 409A. The Plan will be construed and administered in
a manner that is consistent with and gives effect to the
foregoing.
1.4
Relationship to 1997 Non-Employee Director Stock Compensation
Plan . The Company previously adopted the Nash Finch
Company 1997 Non-Employee Director Stock Compensation Plan (the
“1997 Plan”), a plan which, as amended, is similar in
purpose and type to the Plan. Because of changes in the Code
that change the taxation of non-qualified deferred compensation
arrangements for amounts deferred on or after January 1, 2005, the
Company has elected (i) to amend the 1997 Plan to provide that no
additional deferrals may be made by participants in that plan after
December 31, 2004, and (ii) to adopt this new Plan for amounts
deferred after December 31, 2004, in each case determining the
timing of any deferral in a manner consistent with Code section
409A and the regulations, rulings and guidance issued thereunder by
the U.S. Treasury Department and the Internal Revenue
Service.
2.
Participation
.
2.1
Eligibility . Each individual who is a Qualified
Director is eligible to participate in the Plan. A
Participant who has suspended his or her deferral elections in
connection with an Unforeseeable Emergency is not eligible to elect
additional deferrals with respect to the remainder of the Plan Year
during which the suspension occurs.
2.2
Enrollment and Commencement of
Participation .
(a)
As a condition to participation, each Qualified Director as of the
first day of a Plan Year shall complete, execute and return to the
Administrator an election form and a beneficiary designation form
prior to the first day of such Plan Year, or such earlier deadline
as may be established by the Plan Rules.
(b)
An individual who first becomes a Qualified Director after the
first day of a Plan Year must, in order to participate for the
remainder of that Plan Year, complete and return to the
Administrator the documents specified in Section 2.2(a) within
thirty (30) days after he or she first becomes a Qualified
Director, or by such earlier deadline as may be established by Plan
Rules. In such event, such person shall not be permitted to
defer under this Plan any portion of his or her Director Cash
Compensation that is paid with respect to services performed prior
to his or her participation commencement date.
(c)
Each Qualified Director shall commence participation in the Plan on
the date that the Administrator determines that the Qualified
Director has met all participation requirements, including
returning all required documents to the Administrator within the
specified time period.
The Administrator shall process a
Participant’s deferral election as soon as administratively
practicable after such deferral election is submitted to and
accepted by the Administrator.
(d)
If a Qualified Director fails to meet all requirements contained in
this Section 2.2 within the period required, that Qualified
Director shall not be entitled to participate in the Plan during
such Plan Year.
2.3
Condition of Participation . Each Qualified Director,
as a condition of participation in the Plan, is bound by all the
terms and conditions of the Plan and the Plan Rules, including but
not limited to the reserved right of the Company to amend or
terminate the Plan, and must furnish to the Administrator such
pertinent information, and execute such election forms and other
instruments, as the Administrator or Plan Rules may require by such
dates as the Administrator or Plan Rules may establish.
2.4
Termination of Participation . A Participant will
cease to be such as of the date on which he or she is not then
eligible to make deferrals and his or her entire Account balance
has been distributed.
3.
Deferral Elections
.
3.1
Minimum and Maximum
Deferrals
(a)
Full Plan Year . For each full Plan Year, a
Participant may elect to defer the payment of his or her Director
Cash Compensation by any one percent increment from one percent to
a maximum of 100%. The percentage so elected for Director
Cash Compensation will automatically apply to the
Participant’s Director Cash Compensation as adjusted from
time to time. The Participant may also elect to defer any
dollar amount of Director Cash Compensation, in even $1,000
increments, so long as the total amount deferred will not, in any
case, exceed the applicable maximum deferral amount as specified
above. For an election to be effective, a Participant must
elect to defer a minimum of $5,000 of his or her annual Director
Cash Compensation. If the Administrator determines, prior to
the beginning of a Plan Year, that a Participant has made an
election for less than the stated minimum annual deferral amount,
or if no election is made, the amount deferred shall be
zero.
(b)
Short Plan Year . If a Participant first becomes
eligible to participate in the Plan after the first day of a Plan
Year, the minimum annual amount of his or her Director Cash
Compensation that may be deferred shall be equal to $5,000
multiplied by a fraction, the numerator of which is the number of
complete months remaining in the Plan Year after the Qualified
Director first becomes eligible to participate in the Plan and the
denominator of which is 12. The maximum annual amount
that may be deferred for that Plan Year will be the amount of
Director Cash Compensation not yet earned by the Participant as of
the date the Participant commences participation in the
Plan.
3.2
Elections to
be Made .
(a)
First Plan Year . In connection with a
Participant’s commencement of participation in the Plan, the
Participant shall make the following elections:
(i)
an election as to the amount of
Director Cash Compensation payable with respect to the Plan Year in
which the Participant commences participation in the Plan that is
to be deferred;
(ii)
an election as to how the deferral
is to be allocated (in increments of one percent) among his or her
Cash Subaccount and Share Subaccount;
(iii)
a one-time, irrevocable election, as
described in Section 6.1(b), as to the manner in which the
Participant will receive his or her Separation Benefit;
(iv)
a one-time, irrevocable election, as
described in Section 6.2(b), as to the manner in which the
Participant will receive his or her Disability Benefit;
(v)
such other elections as the
Administrator deems necessary or desirable under the
Plan.
For any election to be valid, the
election form must be completed and signed by the Participant,
timely delivered to the Administrator (in accordance with Section
2.2 above) and accepted by the Administrator.
(b)
Subsequent Plan Years . For each succeeding Plan Year,
each Participant shall make a deferral election as to the amount of
Director Cash Compensation payable with respect to such Plan Year,
an election as to how the deferral is to be allocated (in
increments of one percent) among his or her Cash Subaccount and
Share Subaccount, and such other elections as the Administrator
deems necessary or desirable under the Plan. Such elections
shall be made by timely delivering a new election form to the
Administrator, in accordance with Plan Rules, before the end of the
Plan Year preceding the Plan Year for which the election is
made. If no such election form is timely delivered for a Plan
Year, the Director Cash Compensation to be deferred shall be zero
for that Plan Year.
4.
Crediting and Vesting of
Contributions to a Participant’s Account
4.1
Participant Accounts . The Administrator will
establish and maintain an Account for each Participant to evidence
amounts credited with respect to the Participant pursuant to
Sections 4 and 5. A Participant’s Account may include a
Cash Subaccount and a Share Subaccount.
4.2
Withholding and Crediting of Covered Compensation .
For each Plan Year, deferrals of Director Cash Compensation shall
be withheld at the time the Director Cash Compensation is or
otherwise would be paid to the Participant, whether or not this
occurs or would occur during the Plan Year to which these amounts
relate. Deferred amounts of Director Cash Compensation will
be credited to a Participant’s Account at the time such
amounts would otherwise have been paid to the Participant.
Such credits to the Qualified Director’s Cash Subaccount will
be in U.S. dollars in an amount equal to the amount of the deferral
allocated to the Cash Subaccount by the Qualified Director.
Such credits to a Qualified Director’s Share Subaccount will
be the number of full and fractional Share Units determined by
dividing the amount of Director Cash Compensation to be allocated
to the Share Subaccount by the Market Price on the date as of which
the credit is made.
4.3
Crediting of Amounts after Benefit Distribution .
Notwithstanding any provision in this Plan to the contrary, should
the complete distribution of a Participant’s vested Account
balance occur prior to the date on which any portion of the
Director Cash Compensation that a Participant has elected to defer
in accordance with Section 3.1 would otherwise be credited to the
Participant’s Account, such amount shall not be so credited
but shall be paid to the Participant in a lump sum as soon as
administratively practicable after such amount would otherwise have
been credited to the Participant’s Account.
4.4
Vesting . A Participant shall at all times be 100%
vested in his or her Account balance.
5.
Investment Credits
.
5.1
Cash Subaccounts
.
(a)
Designation of Measurement Funds . The Administrator
will designate two or more Measurement Funds that will serve as the
basis for determining Investment Credits to a Participant’s
Cash Subaccount. The Administrator may, from time to time,
designate additional Measurement Funds or eliminate any previously
designated Measurement Funds. The designation or elimination
of a Measurement Fund pursuant to this Section 5.1(a) is not a Plan
amendment. The Administrator will not be responsible in any
manner to any Participant, Beneficiary or other person for any
damages, losses, liabilities, costs or expenses of any kind arising
in connection with any designation or elimination of a Measurement
Fund.
(b)
Participant Direction
. A Participant must direct
the manner in which amounts
credited to his or her Cash
Subaccount pursuant to Section 4 will be allocated among and deemed
to be invested in the Measurement Funds designated pursuant to
Section 5.1(a). Such allocation and investment directions
shall be submitted in writing on an election form to the
Administrator. If a Participant fails to direct the manner in
which amounts credited to his or her Cash Subaccount will be deemed
to be invested, his or her Cash Subaccount balance will
automatically be allocated to and deemed invested in the
Measurement Fund specified in Plan Rules. Amounts will be
deemed to be invested in accordance with the Participant’s
direction on or as soon as administratively practicable after the
date the amounts are credited to the Participant’s Cash
Subaccount.
(c)
Change in Direction for Account Balances and Future Credits
. A Participant may, at any time, direct a change in the
manner in which future credits to his or her Cash Subaccount
pursuant to Section 4 will be, or his or her existing Cash
Subaccount balance is, allocated among and deemed to be invested in
the Measurement Funds designated pursuant to Section 5.1(a).
Any such direction may be made separately for an existing Cash
Subaccount balance and for future amounts to be credited to a Cash
Subaccount. Any change in allocation and investment direction
shall be submitted in writing on an election form to the
Administrator, and will be effective as soon as reasonably
practicable after receipt of the election form by the
Administrator.
(d)
Effecting a Change in Direction . In providing any
direction described in Sections 5.1(b) and (c), the Participant
shall specify on the election form, in increments of one percent
(1%), the percentage of his or her Cash Subaccount balance or of
future credits to his or her Cash Subaccount, as applicable, to be
allocated/reallocated to each Measurement Fund. Any such
direction will remain in effect until the Participant subsequently
submits a properly completed new election form to the
Administrator.
(e)
Account Adjustment . As of the close of business on
each day on which trading occurs on the NASDAQ Stock Market, the
Administrator will cause each Participant’s Cash Subaccount
balance to be adjusted (upward or downward) to reflect the
investment performance, since the last adjustment, of the
Measurement Funds among which the Cash Subaccount balance has been
allocated and hypothetically invested.
5.2
Share Subaccounts
.
(a)
Timing and Nature of Credits . As of the first day of
the calendar quarter first following the date on which dividends
are paid on Shares, a Participant’s Share Subaccount will be
credited with that number of full and fractional Share Units
determined by dividing (i) the dollar amount of the dividends that
would have been payable to the Participant if the number of Share
Units credited to the Participant’s Share Subaccount on the
record date for such dividend payment had then been Shares
registered in the name of such Participant, by (ii) the Market
Price on the date as of which the credit is made.
(b)
Adjustments . In the event of a reorganization,
recapitalization, stock split, stock dividend, combination of
shares, merger, consolidation, rights offering or any other change
in the Company’s corporate structure or Shares, the
Administrator will make such adjustment, if any, as the
Administrator may deem appropriate in the number and kind of Share
Units credited to Share Subaccounts.
5.3
No Actual Investment . The Measurement Funds and Share
Units are to be used only for record-keeping purposes to adjust a
Participant’s Account Balance, and nothing contained in this
Plan or done in accordance with the terms of this Plan shall be
considered or construed in any manner as an actual investment of a
Participant’s Account Balance in any such Measurement Fund or
Share Unit. A Participant’s Account Balance will at all
times be a bookkeeping entry only and will not represent any
investment made on his or her behalf by any Employer or the Trust;
the Participant shall at all times
remain an unsecured creditor of the applicable
Employer. If any Employer or the Trustee decides to invest
funds in any or all of the investments on which the Measurement
Funds or Share Units are based, or in any comparable investments,
no Participant shall have any rights in or to such investments
themselves.
5.4
Participant Responsibilities . Each Participant is
solely responsible for any and all consequences of his or her
investment directions made pursuant to Section 3.2(a)(ii) and this
Section 5. Neither the Company, any of its directors,
officers or employees, nor the Administrator has any responsibility
to any Participant or other person for any damages, losses,
liabilities, costs or expenses of any kind arising in connection
with any investment direction made by a Participant pursuant to
this Plan.
6.
Distributions of Amounts Credited
to Plan Accounts .
6.1
Separation Benefit
.
(a)
Amount of Separation Benefit . A Participant who
experiences a Separation from Service shall receive, as a
Separation Benefit, his or her vested Account balance, calculated
as of the close of business on the Participant’s Benefit
Distribution Date.
(b)
Payment of Separation Benefit . A Participant, in
connection with his or her initial commencement of participation in
the Plan, shall irrevocably elect on an election form to receive
his or her Separation Benefit in a lump sum or pursuant to the
Annual Installment Method for up to 15 years. If a
Participant does not make any election with respect to the payment
of his or her Separation Benefit, then such Participant shall be
deemed to have elected to receive the Separation Benefit in a lump
sum. The lump sum payment shall be made, or installment
payments shall commence, no later than 60 days after the
Participant’s Benefit Distribution Date. Remaining
installments, if any, shall be paid no later than 60 days after
each anniversary of the Participant’s Benefit Distribution
Date.
(c)
Change in Election . A Participant may change his or
her election with respect to the payment of a Separation Benefit
one time by submitting an election form to the Administrator in
accordance with the following criteria:
(i)
Such election form must be submitted to and accepted by the
Administrator at least 12 months prior to the Participant’s
originally scheduled Benefit Distribution Date;
(ii)
The Separation Benefit payment(s) is (are) delayed at least 5 years
from the Participant’s originally scheduled Benefit
Distribution Date in accordance with the requirements of Code
section 409A(a)(4) and regulations and rulings issued thereunder;
and
(iii)
The election to change the timing of the payment of the Separation
Benefit shall have no effect until at least 12 months after the
date on which the election is made.
6.2
Disability Benefit
.
(a)
Amount of Disability Benefit . Upon a
Participant’s Disability, the Participant shall receive a
Disability Benefit, which shall be equal to the Participant’s
vested Account Balance, calculated as of the close of business on
the Participant’s Benefit Distribution Date.
(b)
Payment of Disability Benefit . A Participant,
in connection with his or her initial commencement of participation
in the Plan, shall irrevocably elect on an election form to receive
the Disability Benefit in a lump sum or pursuant to the Annual
Installment Method for up to 5 years. If a Participant does
not make any election with respect to the payment of the Disability
Benefit, then such Participant shall be deemed to have elected to
receive the Disability Benefit in a lump sum. The lump sum
payment shall be made, or installment payments shall commence,
no
later than 60 days after the
Participant’s Benefit Distribution Date. Remaining
installments, if any, shall be paid no later than 60 days after
each anniversary of the Participant’s Benefit Distribution
Date.
6.3
Death Benefit
.
(a)
Amount of Death Benefit . The Participant’s
Beneficiary(ies) shall receive a Death Benefit upon the
Participant’s death which will be equal to the
Participant’s vested Account Balance, calculated as of the
close of business on the Participant’s Benefit Distribution
Date.
(b)
Payment of Death Benefit . The Death Benefit shall be
paid to the Participant’s Beneficiary(ies) in a lump sum
payment, whether or not installment payments had already commenced
to the Participant before his or her death. The lump sum
payment shall be made no later than 60 days after the
Participant’s Benefit Distribution Date.
6.4
Partial Distributions . Any installment
payment or partial distribution to a Participant from his or her
Cash Subaccount shall be deemed to have been made proportionally
from each of the Measurement Funds into which amounts credited to
such Subaccount are deemed invested, based on the ratio of the
amount deemed invested in each such Measurement Fund to the
Participant’s total Cash Subaccount balance as of the date
the amount of the installment payment or partial distribution is
determined. The undistributed portion of an Account
distributed in the form of installment payments or a partial
distribution will continue to receive Investment Credits in
accordance with this Plan.
6.5
Form of Distribution . Any distribution from a
Participant’s Cash Subaccount will be made in cash
only. Any distribution from a Participant’s Share
Subaccount will be made in full Shares only and cash in lieu of any
fractional Share (in an amount based on the Market Price on the
applicable distribution date).
6.6
Reduction of Account Balance . The balance of the
Account from which a distribution is made will be reduced by the
amount of the distribution as of the date of the
distribution.
6.7
Limitations on Share Distributions . Notwithstanding
any other provision of the Plan to the contrary, neither the
Company nor the Trustee is required to issue or distribute any
Shares under this Plan, and a distributee may not sell, assign,
transfer or otherwise dispose of Shares issued or distributed
pursuant to the Plan, unless (a) there is in effect with respect to
such Shares a registration statement under the Securities Act and
any applicable state securities laws or an exemption from such
registration under the Securities Act and applicable state
securities laws, and (b) there has been obtained any other consent,
approval or permit from any other regulatory body which the Company
deems necessary or advisable. The Company or the Trustee may
condition such issuance, distribution, sale or transfer upon the
receipt of any representations or agreements from the parties
involved, and the placement of any legends on certificates
representing Shares, as may be deemed necessary or advisable by the
Company in order to comply with such securities laws or other
restrictions. This Section 6.7 will not operate to defer the
date as of which the benefit payable to the Participant
unde
