AMENDED AND RESTATED NASH-FINCH
COMPANY
DEFERRED COMPENSATION PLAN
As Amended and Restated Effective
July 14, 2008
|
1.1
|
|
Plan Name
. The name of this plan
(the “Plan”) is the “Amended and Restated
Nash-Finch Company Deferred Compensation Plan.”
|
|
|
|
|
|
1.2
|
|
Plan Purpose
. The purpose of the
Plan is to provide Participants with the opportunity to defer a
portion of the Covered Compensation that would otherwise be payable
to them and to compensate Participants for the amount, if any, by
which such deferrals decrease the amount of profit sharing or
company matching contributions that would otherwise be made on
their behalf pursuant to the Profit Sharing Plan or a 401(k) Plan.
The Plan is intended to comply in form and operation with all
applicable law, including, to the extent applicable, the
requirements of Section 409A of the Code and will be
administered, operated and construed in accordance with this
intention. The Plan has been operated in reasonable, good faith
compliance with Section 409A of the Code (within the meaning
of Internal Revenue Services Notices 2005-1, 2006-79 and 2007-86)
during the period beginning January 1, 2005 and ending on the
effective date of this amendment and restatement.
|
|
|
|
|
|
1.3
|
|
Plan Type
. The Plan is an
unfunded plan maintained primarily for the purpose of providing
deferred compensation for a select group of management or highly
compensated Employees and, as such, is intended to be exempt from
the provisions of Parts 2, 3 and 4 of Subtitle B of Title I of
ERISA by operation of sections 201(2), 301(a)(3) and 401(a)(4)
thereof, respectively, and from the provisions of Title IV of
ERISA, to the extent otherwise applicable, by operation of section
4021(b)(6) thereof. The Plan will be administered, operated and
construed in accordance with this intention.
|
|
|
|
|
|
1.4
|
|
Relationship to Income Deferral
Plan .
Effective June 1, 1994, the Company adopted the Nash-Finch
Company Income Deferral Plan (the “Income Deferral
Plan”), a plan 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
(a) to amend the Income Deferral Plan to provide that there
may be no new participants in such plan after December 31,
2004 and that no additional compensation amounts may be deferred
under such plan after December 31, 2004, and (b) to adopt
this new Plan for compensation amounts deferred after
December 31, 2004, in each case determining the timing of any
deferral in a manner consistent with Section 409A of the Code
and the regulations, rulings and guidance issued thereunder by the
U.S. Treasury Department and the Internal Revenue
Service.
|
ARTICLE 2
Eligibility, Selection and Enrollment
|
|
(a)
|
|
Participation in the Plan shall be
limited to Qualified Employees of Employers. From that group of
Qualified Employees, the Compensation Committee shall select, in
its sole discretion, those Qualified Employees who may actually
participate in the Plan. The Compensation Committee may discharge
this responsibility by designating specific categories of Qualified
Employees (such as by title, position or pay grade) who are
entitled to participate in the Plan.
|
|
|
|
|
|
|
|
(b)
|
|
At
any time during a Plan Year, the Compensation Committee may
determine (either specifically or through the application of a
category designation described in Section 2.1(a)) that a
Qualified Employee who became such after the beginning of the Plan
Year is eligible to participate in the Plan with respect to the
remainder of the Plan Year.
|
|
|
|
|
|
|
|
(c)
|
|
The
fact that an Employee has been eligible to make deferral elections
under the Plan with respect to any particular Plan Year does not
give the Employee any right to make deferral elections in any other
Plan Year. Nevertheless, a determination that a Qualified Employee
is eligible to make deferral elections under the Plan shall be
effective from one Plan Year to the next so long as the individual
remains a Qualified Employee and the Compensation Committee does
not act to deny that Employee the ability to make deferral
elections for a future Plan Year.
|
|
|
|
|
|
|
|
(d)
|
|
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 Employee who is
selected to participate in the Plan as of the first day of a Plan
Year shall complete and submit to the Administrative Committee an
election and a beneficiary designation in the form and manner
prescribed by Plan Rules prior to the first day of such Plan Year,
or such earlier deadline as may be established by the Plan
Rules.
|
|
|
|
|
|
|
|
(b)
|
|
An
Employee who first becomes a Qualified Employee after the first day
of a Plan Year must, in order to participate for the remainder of
that Plan Year, complete and submit to the Administrative Committee
the election and designation specified in Section 2.2(a)
within thirty (30) days after he or she first becomes eligible
to participate in the Plan, or by such earlier deadline as may be
established by Plan Rules. In such event, such Employee shall not
be permitted to defer under the Plan any portion of his or her
Covered Compensation that is paid with respect to services
performed prior to his or her participation commencement
date.
|
2
|
|
(c)
|
|
Each Qualified Employee who is
selected to participate in the Plan shall commence participation in
the Plan on the date that the Administrative Committee determines,
in its sole discretion, that the Qualified Employee has met all
participation requirements, including returning all required
documents to the Administrative Committee within the specified time
period. The Administrative Committee shall process a
Participant’s deferral election as soon as administratively
practicable after such deferral election is submitted to and
accepted by the Administrative Committee.
|
|
|
|
|
|
|
|
(d)
|
|
If
a Qualified Employee fails to meet all requirements contained in
this Section 2.2 within the period required, that Qualified
Employee shall not be entitled to participate in the Plan during
such Plan Year. In addition, the Administrative Committee may
establish from time to time such other enrollment requirements as
it determines in its sole discretion are necessary or
desirable.
|
|
2.3
|
|
Transfer among
Employers . A Participant who transfers
employment from one Employer to another Employer and who continues
to be a Qualified Employee after the transfer will, for the
duration of the Plan Year during which the transfer occurs,
continue to participate in the Plan in accordance with the deferral
election in effect for the portion of the Plan Year before the
transfer, as a Qualified Employee of such other
Employer.
|
|
|
|
|
|
2.4
|
|
Multiple Employment
. A Participant who is
simultaneously employed as a Qualified Employee with more than one
Employer will participate in the Plan as a Qualified Employee of
all such Employers on the basis of a single deferral election
applied separately to his or her Covered Compensation from each
such Employer.
|
|
|
|
|
|
2.5
|
|
Termination or Ceasing to be a
Qualified Employee . A Participant who, during a Plan
Year, terminates his or her employment with all Employers or is
determined by the Administrative Committee to have otherwise ceased
to be a Qualified Employee is not eligible for further deferral
credits for the remainder of the Plan Year in which such
termination or determination occurs, and any related deferral
election the Participant has made for the remainder of such Plan
Year shall be terminated. If a Participant is no longer eligible to
defer compensation under the Plan, the Participant’s Account
shall continue to be governed by the terms of the Plan until such
time as the Participant’s Account Balance is paid in
accordance with the terms of the Plan.
|
|
|
|
|
|
2.6
|
|
Condition of
Participation . Each Qualified Employee, as a
condition of participation, is bound by all of 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 Administrative Committee such
pertinent information as the Administrative Committee or Plan Rules
may require.
|
|
|
|
|
|
2.7
|
|
Termination of
Participation . A Participant or Beneficiary will
cease to be such as of the date on which his or her entire Account
Balance has been distributed.
|
3
ARTICLE 3
Deferral Elections
|
|
(a)
|
|
Covered Compensation
.
For each full Plan Year,
a Participant may elect to defer the payment of his or her Base
Salary, Bonus, Commissions or LTI Amount or any two or more of the
foregoing components of Covered Compensation, by any dollar amount
of any component of Covered Compensation, in even $1,000
increments, so long as the total amount deferred will not, in any
case, exceed the applicable maximum percentage specified in
Section 3.2. A Participant may also elect to defer the payment
of his or her Bonus, Commissions or LTI Amount, but not Base
Salary, by any one percent increment from one percent to a maximum
percentage specified in Section 3.2. For an election to be
effective, the following minimum annual deferral amounts must be
attained for each component of Covered Compensation to be deferred
for a Plan Year:
|
|
|
|
|
|
|
|
Deferral
|
|
Minimum Amount
|
|
|
|
$
|
3,000
|
|
|
|
|
$
|
3,000
|
|
|
|
|
$
|
3,000
|
|
|
|
|
$
|
3,000
|
|
If the
Administrative Committee determines, prior to the beginning of a
Plan Year, that a Participant has made an election with respect to
any component of Covered Compensation for less than the stated
minimum annual deferral amount, or if no election is made, the
amount deferred for that component of Covered Compensation shall be
zero. If the Administrative Committee determines at any time before
a Bonus, Commission or LTI Amount would otherwise be paid that a
Participant has deferred less than the stated minimum amount for
that component of Covered Compensation for the applicable Plan
Year, the amount deferred for that component shall be
zero.
|
|
(b)
|
|
Short Plan Year
. If a Qualified
Employee first becomes eligible to participate in the Plan after
the first day of a Plan Year, the applicable minimum annual
deferral amounts for such Plan Year shall in each case be an amount
equal to the minimum amount set forth in Section 3.1(a),
multiplied by a fraction, the numerator of which is the number of
complete months remaining in the Plan Year after the Qualified
Employee first becomes eligible to participate in the Plan and the
denominator of which is 12.
|
|
|
|
|
|
|
|
(c)
|
|
Revocation or Suspension of
Election . No
deferral elections with respect to Base Salary, Bonus, Commissions
or LTI Amounts may be revoked after the last day by which they must
be received by the Administrative Committee to be effective,
subject to the ability of a Participant to suspend deferrals as
provided in Sections 8.1 or 10.2. In addition, deferrals will be
suspended to the extent necessary for the Employer to comply with
the hardship withdrawal provisions of such Employer’s 401(k)
plan.
|
4
|
|
(a)
|
|
Covered Compensation
. For each full Plan
Year, a Participant may elect to defer Base Salary, Bonus,
Commissions and/or LTI Amounts up to the following maximum
percentages for each deferral elected:
|
|
|
|
|
|
|
|
Deferral
|
|
Maximum Percentage
|
|
|
|
|
75
|
%
|
|
|
|
|
100
|
%
|
|
|
|
|
100
|
%
|
|
|
|
|
100
|
%
|
|
|
(b)
|
|
Short Plan Year
. If a Qualified
Employee first becomes eligible to participate in the Plan after
the first day of a Plan Year, the applicable maximum annual
deferral amounts for such Plan Year shall, in each case, be limited
to (i) the amount of Covered Compensation payable to the
Participant with respect to services rendered to Employers after
the date the Qualified Employee becomes a Participant, multiplied
by (ii) the applicable percentage specified in the table in
Section 3.2(a).
|
|
|
(a)
|
|
In General . In connection with a
Participant’s commencement of participation in the Plan and
for each succeeding Plan Year, the Participant shall make the
following elections:
|
|
|
(i)
|
|
an
election, as described in Section 3.1(a), as to the amount of
each component of Covered Compensation payable with respect to
services performed during such Plan Year that is to be
deferred;
|
|
|
|
|
|
|
|
(ii)
|
|
an
election, as described in Section 7.1(a), as to whether the
Participant wishes to receive a Scheduled Distribution of some or
all of the Covered Compensation to be deferred for such Plan
Year;
|
|
|
|
|
|
|
|
(iii)
|
|
an
election as described in Section 7.2(b), as to the manner in
which the Participant will receive his or her Retirement Benefit
for such Plan Year;
|
|
|
|
|
|
|
|
(iv)
|
|
an
election, as described in Section 7.3(b), as to the manner in
which the Participant will receive his or her Termination Benefit
for such Plan Year;
|
|
|
|
|
|
|
|
(v)
|
|
an
election, as described in Section 7.4(b), as to the manner in
which the Participant will receive his or her Disability Benefit
for such Plan Year;
|
|
|
|
|
|
|
|
(vi)
|
|
an
election, as described in Section 7.6(a), as to whether the
Participant will receive a Change in Control Benefit for such Plan
Year;
|
5
|
|
(vii)
|
|
an
election, as described in Sections 16.8(a), (b) and (e),
as to whether the Participant will defer the commencement of
benefit payments as provided in those Sections for such Plan Year;
and
|
|
|
|
|
|
|
|
(viii)
|
|
such other elections as the
Administrative Committee deems necessary or desirable under the
Plan.
|
For any
election to be valid, the election must be completed by the
Participant, timely submitted to the Administrative Committee (in
accordance with Section 2.2 above) and accepted by the
Administrative Committee. Elections with respect to a Plan Year
succeeding the Plan Year in which the Participant’s
participation commences shall be made by timely submitting a new
election to the Administrative Committee, 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 is timely submitted
for a Plan Year, the Covered Compensation to be deferred shall be
zero for that Plan Year.
|
|
(b)
|
|
LTI Amount Deferrals
. Notwithstanding
anything to the contrary in this Section 3, in connection with
a Participant’s deferral of LTI Amounts pursuant to the Plan,
the Participant shall make deferral elections as
follows:
|
|
|
(i)
|
|
If
the LTI Amount elected to be deferred is “performance-based
compensation” pursuant to Section 409A of the Code, then
the Participant shall make a deferral election prior to the first
day of the last Plan Year in which the applicable performance
period for such LTI Amount occurs, or such earlier time as required
by Section 409A of the Code or by the applicable long term
incentive plan.
|
|
|
|
|
|
|
|
(ii)
|
|
If
the LTI Amount elected to be deferred is not
“performance-based compensation” pursuant to
Section 409A of the Code, then the Participant shall make a
deferral election prior to the thirtieth (30th) day of the first
Plan Year in which the applicable performance period begins, or
such earlier time as required by Section 409A of the Code or
by the applicable long term incentive plan.
|
ARTICLE 4
Crediting and Vesting of Contributions to a
Participant’s Account
|
4.1
|
|
Participant Accounts
. The Administrative
Committee will establish and maintain an Account for each
Participant to evidence amounts credited with respect to the
Participant pursuant to Articles 4 and 5. If a Participant defers
Covered Compensation from more than one Employer, the
Administrative Committee will establish a separate Account for the
Participant with respect to each such Employer. A
Participant’s Account may include a Cash Subaccount and a
Share Subaccount. A Participant’s Cash Subaccount may include
a Deferral and Matching Subaccount, a Scheduled Distribution
Subaccount and a Company Contribution Subaccount. A
Participant’s Share Subaccount may include a
|
6
|
|
|
Deferral Subaccount, Deferral and
Matching Subaccount and a Scheduled Distribution
Subaccount.
|
|
|
|
|
|
4.2
|
|
Withholding and Crediting of Covered
Compensation . For each Plan Year, deferrals of
Base Salary shall be withheld from each regularly scheduled Base
Salary payroll in equal amounts. Deferrals of Bonus, Commissions
and/or LTI Amounts shall be withheld at the time the Bonus,
Commissions or LTI Amounts are 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. Deferral of an LTI Amount
that is payable in Shares will be credited to the
Participant’s Share Subaccount (and specifically to the
Deferral Subaccount, if one is established) at the time such
amounts would otherwise have been paid to the Participant. Deferred
amounts of Covered Compensation other than amounts described in the
preceding sentence will be credited to a Participant’s Cash
Subaccount (and specifically to the Deferral and Matching
Subaccount, if one is established) at the time such amounts would
otherwise have been paid to the Participant.
|
|
|
|
|
|
4.3
|
|
Company Contribution
Amount .
For any Plan Year, an Employer may, in its sole discretion, credit
any amount to the Company Contribution Subaccount of any
Participant who has elected to defer Covered Compensation hereunder
for that Plan Year, and any amount so credited shall be for that
Participant the Company Contribution Amount for that Plan Year. The
amount, if any, so credited to a Participant’s Account for a
Plan Year will be determined by the Compensation Committee in the
case of the Company, or by the Board of any other Employer, and may
be smaller (including zero) or larger than the amount credited to
any other Participant. The Company Contribution Amount described in
this Section 4.3, if any, shall be credited on a date or dates
to be determined by the applicable Employer.
|
|
|
|
|
|
4.4
|
|
Company Matching
Amount .
If a matching contribution is made on behalf of a Participant for
any Plan Year pursuant to an applicable 401(k) Plan, and if that
Participant has elected to defer Covered Compensation hereunder for
that Plan Year, then the Participant’s Deferral and Matching
Subaccount will be credited with an amount equal to the amount, if
any, by which (a) the amount of the matching contribution that
would have been allocated to such Participant’s matching
account under the 401(k) Plan for the Plan Year but for the
deferrals made pursuant to the Plan exceeds (b) the amount of
the matching contribution actually allocated to such
Participant’s 401(k) Plan account for the Plan Year. The
amount of any such credit shall be for that Participant the Company
Matching Amount for that Plan Year. Any Company Matching Amount so
credited to the Account of a Participant under the Plan for any
Plan Year shall be credited on a date or dates to be determined by
the Employer.
|
|
|
|
|
|
4.5
|
|
Company Profit Sharing
Amount .
If a profit sharing contribution is made on behalf of a Participant
for any Plan Year pursuant to the Profit Sharing Plan, and if that
Participant has elected to defer Covered Compensation hereunder for
that Plan Year, then the Participant’s Deferral and Matching
Subaccount will be credited with an amount equal to the amount, if
any, by which (a) the amount of the profit sharing
contribution that would have been allocated to his or her account
under the Profit Sharing Plan for that Plan Year but for deferrals
made pursuant to the Plan exceeds (b) the amount of the profit
sharing
|
7
|
|
|
contribution actually allocated to
his or her account under the Profit Sharing Plan for such Plan
Year. The amount of any such credit shall be for that Participant
the Company Profit Sharing Amount for that Plan Year. Any Company
Profit Sharing Amount so credited to the Account of a Participant
under the Plan for any Plan Year shall be credited on a date or
dates to be determined by the Employer.
|
|
|
|
|
|
4.6
|
|
Crediting of Amounts after Benefit
Distribution . Notwithstanding any provision in
the 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 Covered Compensation that a Participant
has elected to defer in accordance with Section 3.3 would
otherwise be credited to the Participant’s Account, such
amount shall not be credited to the Participant’s Account,
but shall be paid to the Participant in a single lump sum payment
as soon as administratively practicable after such amount would
otherwise have been credited to the Participant’s
Account.
|
|
|
|
|
|
4.7
|
|
Vesting .
|
|
|
(a)
|
|
A
Participant shall at all times be 100% vested in his or her
Deferral and Matching Subaccount, Deferral Subaccount and Scheduled
Distribution Subaccount.
|
|
|
|
|
|
|
|
(b)
|
|
Subject to Section 4.7(c), a
Participant shall become vested in his or her Company Contribution
Amount for any Plan Year, together with Investment Credits thereon,
on the basis of the number of years (consecutive twelve
(12) month periods) that have passed since the Company
Contribution Amount was credited to the Participant’s
Account, so long as the Participant is an Employee of an Employer
as of the last day of each such twelve (12) month period. Such
vesting shall occur in accordance with the following
schedule:
|
|
|
|
|
|
|
|
Years Since Company
Contribution
|
|
|
|
Amount Was Credited
|
|
Vested Percentage
|
|
|
|
|
0
|
%
|
1 year or more, but less than 2
|
|
|
33
|
%
|
2 years or more, but less than 3
|
|
|
66
|
%
|
|
|
|
|
100
|
%
|
|
|
(c)
|
|
Subject to Section 4.7(d), in
the event of a Change in Control, or upon a Participant’s
Disability or death while employed by an Employer, a
Participant’s Company Contribution Subaccount shall
immediately become 100% vested.
|
|
|
|
|
|
|
|
(d)
|
|
Subject to Section 4.7(e), the
vesting schedule for a Participant’s Company Contribution
Subaccount shall not be accelerated upon a Change in Control to the
extent that the Administrative Committee determines that such
acceleration would cause any payment or distribution by the Company
to or for the benefit of the Participant (whether paid or payable
or distributed or distributable pursuant to the terms of the Plan
or otherwise including without limitation the lapse or termination
of any restriction on or the vesting or exercisability of any
payment or
|
8
|
|
|
|
distribution) to constitute an
“excess parachute payment” within the meaning of
Section 280G of the Code.
|
|
|
|
|
|
|
|
(e)
|
|
Section 4.7(d) shall not apply
to the extent that such Participant, pursuant to a separate
agreement with his or her Employer, is entitled to a payment to
make such Participant whole for the effect of any excise tax
payable pursuant to Section 4999 of the Code.
|
ARTICLE 5
Investment Credits
|
|
(a)
|
|
Designation of Measurement
Funds . The
Administrative Committee will designate two or more Measurement
Funds that will serve as the basis for determining Investment
Credits to a Participant’s Cash Subaccount. The
Administrative Committee 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 Administrative Committee 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 Article 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 to the Administrative Committee in the form and manner
established by Plan Rules. 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 Article 4 will be, or his or her
existing Account 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 to the Administrative
Committee in the form and manner established by Plan Rules, and
will be effective as soon as reasonably practicable after receipt
of the election by the Administrative Committee.
|
9
|
|
(d)
|
|
Change in Direction for Existing
Cash Subaccount Balance . 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 Administrative
Committee.
|
|
|
|
|
|
|
|
(e)
|
|
Account Adjustment
. As of the close of
business on each day on which trading occurs on the NASDAQ National
Market System, the Administrative Committee 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.
|
|
|
(a)
|
|
Cash Dividends
. If a cash dividend is
declared by the Company’s Board, on the date such dividend is
paid or payable to the Company’s stockholders, 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 Fair Market Value on the date
as of which the credit is made.
|
|
|
|
|
|
|
|
(b)
|
|
Stock Dividends
. If a dividend is
declared by the Company’s Board which is payable in Shares,
on the date such dividend is paid or payable to the Company’s
stockholders, a Participant’s Share Subaccount will be
credited with that number of full and fractional Share Units
determined by multiplying (i) the aggregate number of Share
Units credited to a Participant’s Share Subaccount as of such
date by (ii) the number of Shares payable as a dividend on
each outstanding Share in connection with such dividend
declaration.
|
|
|
|
|
|
|
|
(c)
|
|
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
Administrative Committee will make such adjustment, if any, as the
Administrative Committee 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 the Plan or done in accordance with the terms of the 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 Units. A Participant’s Account Balance will at
all
|
10
|
|
|
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 this Article 5. Neither any
Employer, any of its directors, officers or employees, the
Compensation Committee nor the Administrative Committee 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 Article 5.
|
ARTICLE 6
FICA and Other Taxes
|
6.1
|
|
Deferred and Matching
Amounts .
For each Plan Year in which Covered Compensation is being deferred
by a Participant, and for each Plan Year in which a Company
Matching Amount and/or a Company Profit Sharing Amount is credited
to a Participant’s Account, the Employer(s) shall withhold
from that portion of the Participant’s Covered Compensation
that is not being deferred, in a manner determined by the
Employer(s), the Participant’s share of FICA and other
employment taxes on such deferred and credited amounts. If
necessary, the Administrative Committee may reduce the amount of
Covered Compensation that is deferred in order to comply with this
Section 6.1.
|
|
|
|
|
|
6.2
|
|
Company Contributions
. When a Participant
becomes vested in a portion of his or her Company Contribution
Subaccount, the applicable Employer(s) shall withhold from the
portion of the Participant’s Covered Compensation that is not
being deferred, in a manner determined by the Employer(s), the
Participant’s share of FICA and other employment taxes on
such vested amount.
|
|
|
|
|
|
6.3
|
|
Distributions
. The applicable
Employer(s), or the Trustee, shall withhold from any distributions
made to a Participant under the Plan all federal, state and local
income, employment and other taxes required to be withheld by the
Employer(s) in connection with such payments, in amounts and in a
manner to be determined in the sole discretion of the Employer(s)
and the Trustee.
|
ARTICLE 7
Distributions of Amounts Credited to Plan
Accounts
|
7.1
|
|
Scheduled
Distributions .
|
|
|
(a)
|
|
Electing a Scheduled
Distribution . Subject to Section 7.1(c), in
connection with each annual election to defer Covered Compensation,
a Participant may irrevocably elect to receive a Scheduled
Distribution from the Plan with respect to all or a portion of the
amount of Covered Compensation to be deferred for such
|
11
|
|
|
|
Plan Year. The Scheduled
Distribution with respect to a particular Plan Year shall be a
single lump sum payment equal to the balance in the Scheduled
Distribution Subaccount applicable to that Plan Year, calculated as
of the close of business on the January 1 on which the Scheduled
Distribution becomes payable. For purposes of this Section 7,
a single lump sum payment may be made in the form of cash or
Shares. Each Scheduled Distribution elected shall be paid out
during a sixty (60) day period commencing immediately after
the January 1 payable date designated by the Participant. The
January 1 payable date designated by the Participant must be at
least three Plan Years after the end of the Plan Year to which the
Participant’s deferral election described in this
Article 7.1 relates. By way of example, if a Scheduled
Distribution is elected for Covered Compensation payable with
respect to services performed in the Plan Year commencing
January 1, 2005, the Scheduled Distribution could first become
payable on January 1, 2009 and would be paid out during the
sixty (60) day period immediately thereafter.
|
|
|
|
|
|
|
|
(b)
|
|
Postponing Scheduled
Distributions . Subject to Section 7.1(c), a
Participant may make a one-time election to postpone any Scheduled
Distribution described in Section 7.1(a) above, and have such
amount paid out in a single lump sum payment during a sixty
(60) day period commencing immediately after an allowable
alternative distribution payable date designated by the Participant
in accordance with this Section 7.1(b). In order to make this
one-time election, the Participant must submit a new Scheduled
Distribution election form to the Administrative Committee in
accordance with the following criteria:
|
|
|
(i)
|
|
Such election form must be submitted
to and accepted by the Administrative Committee at least twelve
(12) months prior to the Participant’s previously
designated Scheduled Distribution payable date;
|
|
|
|
|
|
|
|
(ii)
|
|
The
new Scheduled Distribution payable date selected by the Participant
must be a January 1 at least five years after the previously
designated Scheduled Distribution payable date; and
|
|
|
|
|
|
|
|
(iii)
|
|
The
election of the new Scheduled Distribution payable date will not be
effective until twelve (12) months after the date on which the
election is made.
|
|
|
(c)
|
|
Other Distributions Take
Precedence .
If a Participant becomes entitled to the distribution of his or her
Account under Sections 7.2, 7.3, 7.4, 7.5 or 7.6 prior to such
Participant’s Scheduled Distribution payable date, such
Participant’s Scheduled Distribution shall not be paid in
accordance with Section 7.1(a) or (b), but the balance in the
Scheduled Distribution Subaccount will be distributed in accordance
with the other applicable Section in this
Article 7.
|
12
|
|
(a)
|
|
Amount of Retirement
Benefit . A
Participant who Retires shall receive, as a Retirement Benefit, his
or her vested Account Balance, calculated as of the close of
business on the Participant’s Benefit Distribution
Date.
|
|
|
|
|
|
|
|
(b)
|
|
Payment of Retirement
Benefit . A
Participant, in connection with his or her initial commencement of
participation in the Plan and for each succeeding Plan Year, shall
irrevocably elect in the form and manner prescribed by Plan Rules
to receive his or her Retirement Benefit in a single lump sum
payment 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 Retirement Benefit for a Plan
Year, then such Participant shall be deemed to have elected to
receive the Retirement Benefit in a single lump sum payment for
such Plan Year. The single lump sum payment shall be made or
installment payments shall commence, no later than sixty
(60) days after the Participant’s Benefit Distribution
Date for such Plan Year. Remaining installments, if any, shall be
paid no later than sixty (60) days after each anniversary of
the Participant’s Benefit Distribution Date for such Plan
Year.
|
|
7.3
|
|
Termination Benefit
.
|
|
|
(a)
|
|
Amount of Termination
Benefit . A
Participant who experiences a Termination of Employment shall
receive, as a Termination Benefit, his or her vested Account
Balance, calculated as of the close of business on the
Participant’s Benefit Distribution Date.
|
|
|
|
|
|
|
|
(b)
|
|
Payment of Termination
Benefit . A
Participant, in connection with his or her initial commencement of
participation in the Plan and for each succeeding Plan Year, shall
irrevocably elect in the form and manner prescribed by Plan Rules
to receive the Termination Benefit in a single lump sum payment 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 Termination Benefit for a Plan Year, then such
Participant shall be deemed to have elected to receive the
Termination Benefit in a single lump sum payment. The single lump
sum payment shall be made or installment payments shall commence,
no later than sixty (60) days after the Participant’s
Benefit Distribution Date. Remaining installment payments, if any,
shall be paid no later than sixty (60) days after each
anniversary of the Participant’s Benefit Distribution
Date.
|
|
|
(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.
|
13
|
|
(b)
|
|
Payment of Disability
Benefit . A
Participant, in connection with his or her initial commencement of
participation in the Plan and for each succeeding Plan Year, shall
irrevocably elect in the form and manner prescribed by Plan Rules
to receive the Disability Benefit in a single lump sum payment 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 for a Plan Year, then such
Participant shall be deemed to have elected to receive the
Disability Benefit in a single lump sum payment. The single lump
sum payment shall be made or installment payments shall commence,
no later than sixty (60) days after the Participant’s
Benefit Distribution Date for such Plan Year. Remaining
installments, if any, shall be paid no later than sixty
(60) days after each anniversary of the Participant’s
Benefit Distribution Date for such Plan Year.
|
|
|
(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
single lump sum payment, whether or not installment payments had
already commenced to the Participant before his or her death. The
single lump sum payment shall be made no later than sixty
(60) days after the Participant’s Benefit Distribution
Date.
|
|
7.6
|
|
Change in Control
Benefit .
|
|
|
(a)
|
|
Election of Change in Control
Benefit . A
Participant, in connection with his or her commencement of
participation in the Plan and for each succeeding Plan Year, shall
irrevocably elect in the form and manner prescribed by Plan Rules
whether to (i) receive a Change in Control 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, or (ii) have his or her Account
Balance remain in the Plan upon the occurrence of a Change in
Control. If a Participant does not make any election with respect
to the payment of a Change in Control Benefit for a Plan Year, then
such Participant’s Account Balance shall remain in the Plan
upon a Change in Control and shall continue to be subject to the
terms and conditions of the Plan.
|
|
|
|
|
|
|
|
(b)
|
|
Payment of Change in Control
Benefit .
Subject to Section 4.7(d), the Change in Control Benefit, if
any, shall be paid to the Participant in a single lump sum payment
no later than sixty (60) days after the Participant’s
Benefit Distribution Date.
|
|
7.7
|
|
Special LTIP Benefit
. Notwithstanding
anything to the contrary in Sections 7.1 through 7.6, if any
amount or benefit is payable under this Plan pursuant to any
mandatory
|
14
|
|
|
provision(s) of the Company’s
long term incentive program (the “LTIP”), the time and
manner of such payment shall be determined pursuant to such
provision(s) instead of pursuant to the terms of this
Article 7.
|
|
|
|
|
|
7.8
|
|
Form of Distribution
. Distributions to a
Participant from his or her Share Subaccount shall be made in the
form of whole Shares. Distributions from the Participant’s
Cash Subaccount shall be made in the form of cash.
|
|
|
|
|
|
7.9
|
|
Partial Distributions
. Partial distributions
generally will be made pro rata between the Cash Subaccount and the
Share Subaccount, provided, however, the partial distribution to be
made in Shares shall be rounded down to the nearest whole Share
with the balance of the distribution made in cash from the Cash
Subaccount. Any installment payment or partial distribution to a
Participant shall be deemed to have been made proportionally from
each of the Measurement Funds into which amounts credited to his or
her Cash 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 thee
Plan.
|
ARTICLE 8
Withdrawals for Unforeseeable Emergencies
|
