|
Exhibit 10.34
NONQUALIFIED
DEFERRED COMPENSATION PLAN
ADOPTION AGREEMENT
(Including Code §409A provisions)
Mutual funds 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 07/07
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)):
|
¨
|
(a) Not applicable.
Unforeseeable Emergency does not apply for purposes of this
Plan.
|
3
Nonqualified Deferred Compensation
Plan
Adoption Agreement
|
x
|
(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 07/07
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 10 % of each Participant’s Elective Deferrals
for each Taxable Year.
|
|
¨
|
(c) Fixed match-tiered. An
amount equal to the following percentages for each specified level
of a Participant’s Elective Deferrals or Years of Service for
each Taxable Year:
|
| |
|
|
|
Elective Deferrals
|
|
Matching
|
| 
