Exhibit 10.33
NONQUALIFIED
DEFERRED COMPENSATION
PLAN
ADOPTION AGREEMENT
(Including Code §409A
provisions)
Company Stock
version
Nonqualified Deferred Compensation
Plan
Adoption Agreement
NONQUALIFIED
DEFERRED COMPENSATION
PLAN
ADOPTION AGREEMENT
The undersigned Frisch’s
Restaurants, Inc. (“Employer”) by execution of this
Adoption Agreement hereby establishes this Nonqualified Deferred
Compensation Plan (“Plan”) consisting of the Basic Plan
Document, this Adoption Agreement and all other Exhibits and
documents to which they refer. The Employer makes the following
elections concerning this Plan. All capitalized terms used in the
Adoption Agreement have the same meaning given in the Basic Plan
Document. References to “Section” followed by a number
in this Adoption Agreement are references to the Basic Plan
Document.
PREAMBLE
ERISA/Code Plan Type
: The Employer establishes this Plan
as ( choose one of (a) or (b) ):
|
x
|
(a)
Nonqualified Deferred Compensation Plan. An unfunded
nonqualified deferred compensation plan which is ( choose only
one of (i), (ii), (iii) or (iv) ):
|
|
|
¨
|
(i) Excess
benefit plan. An “excess benefit plan” under
ERISA§3(36) and exempt from Title I of ERISA.
|
|
|
x
|
(ii) Top-hat
plan. A “SERP” or other plan primarily for a
“select group of management or highly compensated
employees” under ERISA and partially exempt from Title I of
ERISA.
|
|
|
¨
|
(iii)
Contractors only. A plan benefiting only Contractors
(non-Employees) and exempt from Title I of ERISA.
|
|
|
¨
|
(iv) Church
plan. A church plan as described in Code §414(e) and ERISA
§3(33) and maintained by a church or church controlled
organization under Code §3121(w)(3).
|
|
¨
|
(b)
Ineligible 457 Plan. An ineligible 457 Plan subject to Code
§457(f). The Employer is ( choose only one of (i),
(ii) or (iii) ):
|
|
|
¨
|
(i)
Governmental Plan. A State.
|
|
|
¨
|
(ii)
Tax-Exempt Plan. A Tax-Exempt Organization. The Plan is
intended to be a “top-hat” plan or an excess benefit
plan as described in (a)(ii) and (a)(ii) above or the Plan
benefits only Contractors.
|
|
|
¨
|
(iii) Church
plan . A church plan as described in Code §414(e) and
ERISA §3(33) but which is not maintained by a church or church
controlled organization under Code §3121(w)(3).
|
Note: If the Employer elects
(a)(i), the Plan benefits only Employees. If the Employer elects
(a)(ii), the Plan generally may not benefit Contractors based on
the “primarily” requirement. If the Employer elects
(a)(iii), the Plan benefits only Contractors. If the Employer
elects (a)(iv), (b)(i), or (b)(iii) the Plan may benefit Employees
and Contractors. If the Employer elects (b)(ii), the plan is either
a top-hat plan, an excess benefit plan or benefits only
Contractors.
409A Plan Type:
The Employer establishes this Plan (
choose one of (a) or (b) ):
|
x
|
(a) Account
Balance Plan. As the following type(s) of Account Balance
Plan(s) under Section 1.02 ( choose one of (i),
(ii) or (iii) ):
|
|
|
¨
|
(i)
Elective Deferral Account Balance Plan. See
Section 2.02.
|
|
|
¨
|
(ii)
Employer Contribution Account Balance Plan. See Sections
2.03 and 2.04.
|
1
Nonqualified Deferred Compensation
Plan
Adoption Agreement
|
|
x
|
(iii)
Both. Both an Elective Deferral Account Balance Plan and an
Employer Contribution Account Balance Plan.
|
Note: For purposes of aggregation
under Section 1.05, a Separation Pay Plan based only on
Voluntary Separation from Service is treated as an Account Balance
Plan. Nevertheless, if the Employer maintains this Plan as any type
of Separation Pay Plan, the Employer should elect
(b) below.
|
¨
|
(b)
Separation Pay Plan. As the following type(s) of Separation
Pay Plan(s) under Section 1.42 ( choose one of (i) through
(iv) ):
|
|
|
¨
|
(i)
Involuntary Separation.
|
|
|
¨
|
(iii)
Voluntary Separation.
|
|
|
¨
|
(iv)
Combination:
( specify )
|
Note: Under a Separation Pay
Plan, the Employer must limit its payment election to Separation
from Service or death. Electing death as a separate payment event
would permit a different payment election for death versus any
other Separation from Service. Separation from Service may also
result from Disability.
Uniformity or
Nonuniformity: The
nonuniformity provisions described in the Preamble to the Basic
Plan Document ( choose one of (a) or (b) ):
|
x
|
(a) Do not
apply. All Adoption Agreement elections and Plan provisions
apply to all Participants.
|
|
¨
|
(b)
Apply. See Exhibit A to the Adoption Agreement.
|
ARTICLE I
DEFINITIONS
1.11 Change in Control.
Change in Control means ( choose (a) or choose one of (b),
(c) or (d) ):
|
¨
|
(a) Not
applicable. Change in Control does not apply for purposes of
this Plan.
|
|
x
|
(b) All
events. Change in Control means all events under
Section 1.11.
|
|
¨
|
(c) Limited
events. Change in Control means only the following events under
Section 1.11 ( choose one or two of (i), (ii) and
(iii) ):
|
|
|
¨
|
(i) Change in
ownership of the Employer.
|
|
|
¨
|
(ii) Change in
the effective control of the Employer.
|
|
|
¨
|
(iii) Change in
the ownership of a substantial portion of the Employer’s
assets.
|
Note: The Employer may not use the blank in
(d) to specify events not described in Treas. Reg.
§1.409A-3(i)(5). However, the Employer may increase the
percentages required to trigger a Change in Control under one or
all three of the listed events.
1.15 Compensation. The
Employer makes the following modifications to the “gross
W-2” definition of Compensation ( choose (a) or at
least one of (b) – (e) ):
2
Nonqualified Deferred Compensation
Plan
Adoption Agreement
|
¨
|
(b) Net
Compensation. Exclude all elective deferrals to other plans of
the Employer described in Section 1.15.
|
|
¨
|
(c) Base
Salary only. Exclude all Compensation other than Base
Salary.
|
|
¨
|
(d) Bonus
only. Exclude all Compensation other than Bonus.
|
|
x
|
(e) (
Specify ): Exclude moving expenses, severance pay and any
stock-related compensation.
|
1.20 Effective Date. The
effective date of the Plan is ( choose one of (a) or
(b) ):
|
¨
|
(a) New
Plan. This Plan is a new Plan and is effective
.
|
Note: The effective date should
be no earlier than January 1, 2008.
|
x
|
(b) Restated
Plan. This Plan is a restated Plan and is restated effective as
of December 31, 2008. The Plan is restated to comply with Code
§409A. The Plan was originally effective November 15,
1993.
|
Note: If the Plan (whether or not
in written form) was in effect before January 1, 2008, the
Plan is a restated Plan.
1.38 Plan Name. The name of
the Plan as adopted by the Employer is: Frisch’s Executive
Savings Plan.
1.39 Retirement Age. A
Participant’s Retirement Age under the Plan is ( choose
only one of (a)-(d) ):
|
x
|
(a) Not
applicable. Retirement Age does not apply for purposes of this
Plan.
|
|
¨
|
(b) Age.
The Participant’s attainment of age:
.
|
|
¨
|
(c) Age and
service. The Participant’s attainment of age
with
Years of Service (defined under
1.57) with the Employer.
|
1.40 Separation from Service.
In determining whether a Participant has incurred a Separation from
Service under the Plan ( choose one or both or (a) and
(b) ):
|
x
|
(a)
Determination of “Employer.” In determining the
“Employer” under Section 1.40(E) and Code
§§414(b) and (c), apply the following percentage:
80%.
|
|
Note:
|
The
specified percentage may not be more than 80% and may not be less
than 20%. If the percentage is less than 50%, there must be
legitimate business criteria.
|
|
¨
|
(b)
Collectively Bargained Multiple Employer Plan. Under
Section 1.40(H), the following reasonable definition of
Separation from Service applies:
( specify ).
|
Note: See Treas. Reg.
1.409A-1(i)(8) as to uniformity requirements affecting the above
Specified Employee elections.
1.51 Unforeseeable Emergency.
Unforeseeable Emergency means ( choose (a) or choose one of
(b) or (c) ):
|
x
|
(a) Not
applicable. Unforeseeable Emergency does not apply for purposes of
this Plan.
|
3
Nonqualified Deferred Compensation
Plan
Adoption Agreement
|
¨
|
(b) All
events. All events constituting Unforeseeable
Emergency.
|
|
¨
|
(c)
Limited. Only the following events constituting
Unforeseeable Emergency:
.
|
1.56 Wraparound Election. The
Plan ( choose one of (a) or (b) ) :
|
¨
|
(a)
Permits. Permits Participants who participate in a 401(k)
plan of the Employer to make Wraparound Elections.
|
|
x
|
(b) Not
permitted. Does not permit Wraparound Elections (or the
Employer does not maintain a 401(k) plan covering any
Participants).
|
1.57 Year of Service. The
following apply in determining credit for a Year of Service under
the Plan ( choose (a) or choose one or more of
(b) – (e) ):
|
x
|
(a) Not
applicable. Year of Service does not apply for purposes of this
Plan.
|
|
¨
|
(b) Year of
continuous service. To receive credit for one Year of Service,
the Participant must remain in continuous employment with the
Employer (or render contract service to the Employer) for the
Participant’s entire Taxable Year.
|
|
¨
|
(c) Service
on any day. To receive credit for one Year of Service, the
Participant only need be employed by the Employer (or render
contract service to the Employer) on any day of the
Participant’s Taxable Year.
|
|
¨
|
(d) Pre-Plan
service. The Employer will treat service before the
Plan’s Effective Date for determining Years of Service as
follows (choose one of (i) or (ii)) :
|
ARTICLE II
PARTICIPATION
2.01 Participant Designation.
The Employer designates the following Employees or Contractors as
Participants in the Plan ( choose one of (a), (b) or
(c) ):
|
x
|
(a) All
top-hat Employees. All Employees whom the Employer from time to
time designates in writing as part of a select group of management
or highly compensated employees.
|
|
¨
|
(b) All
Employees with maximum qualified plan additions or benefits.
All Employees who have reached or will reach their limit under Code
§§415(b) or (c) in the Employer’s qualified
plan for the Taxable Year or for the 415 limitation year ending in
the Taxable Year.
|
|
¨
|
(c)
Specified Employees/Contractors by name, job title or
classification:
.
( e.g., Joe Smith, Executive Vice Presidents or those
Employees/Contractors specified in Exhibit B).
|
Note: An Employer might elect
(c) and reference Exhibit B to maintain confidentiality within
the workforce as to the identity of some or all
Participants.
4
Nonqualified Deferred Compensation
Plan
Adoption Agreement
2.02 Elective Deferrals.
Elective Deferrals by Participants are ( choose one of (a),
(b) or (c) ):
|
x
|
(a)
Permitted. Participants may make Elective
Deferrals.
|
|
¨
|
(b) Not
permitted. Participants may not make Elective
Deferrals.
|
|
¨
|
(c) Frozen
Elective Deferrals. The Plan does not permit Elective Deferrals
as of:
|
.
2.02(A) Amount
limitation/conditions. A Participant’s Elective Deferrals
for a Taxable Year are subject to the following amount
limitation(s) or other conditions ( choose (a) or choose at
least one of (b) – (d) ):
|
x
|
(b) Maximum
Elective Deferral amount: 25% of Compensation.
|
|
¨
|
(c) Minimum
Elective Deferral amount:
.
|
2.02(B) Election timing. A
Participant must provide the Elective Deferral election under
Section 2.02 to the Employer ( choose one of (a) or
(b) ):
|
x
|
(a) By the
deadline. No later than the applicable election deadline under
Section 2.02(B).
|
|
¨
|
(b)
Specified date. No later than
days before the applicable election deadline under
Section 2.02(B).
|
2.02(B)(6) Final payroll
period. The Plan treats final payroll period Compensation under
Section 2.02(B)(6) as ( choose one of (a) or (b)
):
|
x
|
(a) Current
Year. As Compensation for the current Taxable Year in which the
payroll period commenced.
|
|
¨
|
(b)
Subsequent Year. As Compensation for the subsequent Taxable
Year in which the Employer pays the Compensation.
|
2.02(C) Election
changes/Irrevocability. A Participant who makes an Elective
Deferral election before the applicable deadline under
Section 2.02(B) ( choose one of (a) or (b)
):
|
x
|
(a) May
change. May change the election until the applicable election
deadline.
|
|
¨
|
(b) May not
change. May not change the election as to the first Taxable
Year to which the election applies.
|
Note: A payment election under
Section 4.02(A) or (B) is a separate election which is
not controlled by this Section 2.02(C). See
Section 4.06(B).
2.02(D) Election duration. A
Participant’s Elective Deferral election ( choose one of
(a) or (b) ):
|
x
|
(a) Taxable
Year only. Applies only to the Participant’s Compensation
for the Taxable Year for which the Participant makes the
election.
|
5
Nonqualified Deferred Compensation
Plan
Adoption Agreement
|
¨
|
(b)
Continuing. Applies to the Participant’s Compensation
for all Taxable Years, commencing with the Taxable Year for which
the Participant makes the election, unless the Participant makes a
new election or revokes or modifies an existing
election.
|
2.03 Nonelective
Contributions. During each Taxable Year the Employer will
contribute a Nonelective Contribution for each Participant equal to
( choose (a) or (f) or choose one or more of
(b) – (e) ):
|
x
|
(a)
None. The Employer will not make Nonelective Contributions
to the Plan.
|
|
¨
|
(b) Fixed
percentage.
% of the Participant’s Compensation.
|
|
¨
|
(c) Fixed
dollar amount. $
per Participant.
|
|
¨
|
(d)
Discretionary. Such Nonelective Contributions (or additional
Nonelective Contributions) as the Employer may elect, including
zero.
|
|
¨
|
(f) Frozen
Nonelective Contributions. The Employer will not make any
Nonelective Contributions as of:
.
|
2.04 Matching Contributions.
During each Taxable Year, the Employer will contribute a Matching
Contribution equal to ( choose (a) or (i) or choose
one or more of (b) – (h) ):
|
¨
|
(a)
None. The Employer will not make Matching Contributions to
the Plan.
|
|
x
|
(b) Fixed
match-flat. An amount equal to 15 % of each Participant’s
Elective
|
