Retirement Income Plan of IBP, inc

EXHIBIT 10.46

 

Retirement Income Plan

of IBP, inc.

 

As Amended and Restated

Effective August 1, 2000

 

1.1	Merger/Restatement

 

THE RETIRMENT INCOME PLAN OF IBP, inc. was hereby created effective January 1, 1992 through the amendment and restatement of the Supplemental Retirement Savings Plan of IBP, inc. (the “SRSP”) pursuant to Article VI of the SRSP and the amendment and restatement of the Group Deferred Compensation Plan of IBP, inc. (the “GDCP”) pursuant Section X of the “GDCP”, as authorized by a Resolution adopted by the Company’s Board of Directors on January 29, 1992. The merged Plan was amended and restated effective January 1, 1998, and again amended and restated effective August 1, 2000.

 

1.2	Establishment and Purpose

 

The Plan shall continue the purposes for which the SRSP and GDCP were both

established by the Company. Those purposes include: (1) to provide to select

group of Highly Compensated Employees, as defined by the Internal Revenue

Code of 1986, as amended, a plan for the creation of retirement savings through

employer deferred Nonelective Profit Sharing Contributions; (2) to permit

deferral of current income including base salary, bonuses, stock grant (cash

equivalent or stock), and other cash payments from the Company such as through

employer Matching Contributions and/or through an unfunded “Executive

Supplemental Retirement Plan” within the meaning of Sections 201(2), 301(a)(3),

and 401(a)(l) of ERISA and consistent with the restrictions and limitations placed

upon the participation of highly compensated employees in qualified plans under

the Internal Revenue Code of 1986; and (3) for any other business purpose which

may assist the company to attract, retain and motivate this select group.

 

1.3	Application of Plan

 

The terms and provisions of this Plan are applicable to (i) eligible employees who

are in the active employ of the Company on or after January 1, 1993 and (ii)

Participants in the SRSP and GDCP on January 1, 1992.

 

2.1	Definitions

 

The following terms shall have the meaning stated below unless the context

clearly indicates otherwise:

 

a. “Board of Directors” shall mean the Board of Directors of IBP, inc.

 

b.

“Bonus Year” shall mean the fiscal year of IBP, inc., which is the period

during which employees earn his/her discretionary cash bonus pursuant to “IBP Policies Affecting Employee Relations” or his/her contract for employment, if any.

 

c. “Break in Service” shall mean the cessation of crediting service when the

Employee...

 

(i)

resigns;

 

(ii)

is discharged;

 

(iii)

fails to report for work within the period required under the law or Employer’s policy;

 

(iv)

is on an authorized leave of absence and fails to return to

employment, in which case the Employee’s Break in Service shall

be deemed to have occurred on the first day of the Employee’s

authorized leave of absence; or

 

(v)

retires or dies.

 

d. “Cash Balance” shall mean the amount of a Participant’s Account with respect

to each deferral under this Plan and all deferrals previously made under the

 

applicable provisions of the SRSP and GDCP, together with the notional

 

gains, losses and/or interest thereon as provided by this Plan, to the extent

 

unpaid. The “Cash Balance” will exclude the non-vested employer

 

Nonelective Profit Sharing Contributions and/or Matching Contributions.

 

e. “Code” shall mean the Internal Revenue Code of 1986, as now in effect or

hereafter amended.

 

f. “Committee” or “Plan Committee” shall mean the Committee designated to

administer the Plan in Section 4.1.

 

g.

“Deferral Election” shall mean that portion of a Participant’s base salary,

bonus, stock grant (cash equivalent or stock) or other cash payment which the

Participant elects to defer pursuant to the provisions of this Plan and

all deferrals previously made under the applicable provisions of the SRSP and

GDCP.

 

h. “Disability” shall mean disability as defined for purposes of Social Security,

plus a termination of active employment from the Company.

 

i.

“Key Employee” shall mean the Highly Compensated Employee as that term

 

is defined in the Savings Plan and/or who is also a key person to the Company

 

as evidenced by his position of responsibility as a supervisor, manager or

 

above.

 

j. “ERISA” shall mean the Employee Retirement Income Security Act of 1974,

as now in effect or hereafter amended.

 

k. “One-Year Break in Service” means a Plan year in which an Employee who

has had a Break in Service has no hours of service.

 

l. “Payment Date” shall mean January 15 coupled with the time and method of

payment previous elected by the Participant.

 

m. “Participant” shall mean an employee who has satisfied the requirements of

Section 3.1 and 3.2, or a former employee for whole benefit an account is

 

maintained under the provisions of this Plan.

 

n. “Participant’s Account” shall mean the bookkeeping entries maintained by the

Company or its designee in its accounting records for all of a Participant’s

 

deferrals either under this Plan, or under the prior SRSP and GDCP and for

 

nonelective profit sharing contributions made by the Company.

 

o. “Plan Year” shall mean the first Plan Year which shall begin January 1, 1992

and end December 31, 1992, and subsequent Plan Years which shall begin on

 

January 1 and end on the following December 31.

 

p. “Retirement” shall mean the termination (either voluntary or involuntary) of an

Employee’s employment relationship with the Company on or after the age of

 

55 years.

 

q. “Savings Plan” shall mean the Retirement Savings Plan of IBP, inc., a

qualified plan under Code section 401(a) of the Internal Revenue Service.

 

r. “Stock Plan Deferral” shall mean the fair market value stock equivalent or the

shares of stock voluntarily deferred by a Participant pursuant to the terms of

 

this Plan.

Unless the context clearly indicates otherwise, terms not defined in this Section have the meanings specified in the qualified Savings Plan. Where the defined meaning is intended, the term is capitalized.

 

2.2	Gender and Number

 

Except when otherwise indicated by the context, words in the masculine gender shall include the feminine; the plural shall include the singular and the singular shall include the p1ural.

 

2.3 Employment Rights

 

Establishment of this Plan shall not be construed to give any Participant the right to continued employment by the Company, to have his terms of employment altered or amended, or to any benefits not specifically provided by this Plan.

 

2.4 Severability

 

In the event any provision of the Plan shall be held invalid or illegal for any reason, any illegality of invalidity shall not effect the remaining parts of the Plan, but the Plan shall be construed and enforced as if the illegal or invalid provision had never been included, and the Company shall have the right to correct and remedy such issues or illegality or invalidity by amendment, as provided in the Plan.

 

2.5 Applicable Law

 

This Plan is fully exempt from Titles II, III, and IV of ERISA. The Plan shall be governed and construed in accordance with Title I of ERISA and the laws of the State of Nebraska.

 

3.1	Eligibility for Participation

 

An employee of the Company shall be eligible to become a Participant in this Plan if: (i) he is a Key Employee, or (ii) prior to January 1, 1992 he elected to participate in the GDCP for the Plan Year pursuant to Section 4.1 of the GDCP.

 

3.2	Participation

 

a.

Except as to the Employer Nonelective Profit Sharing Contributions, an employee who is eligible to participate in this plan shall become a Participant in the Plan as of the first day of the Plan Year in which the event described in Section 3.1 occurs.

 

b.

With respect to the Employer Nonelective Profit Sharing Contributions, an employee was an eligible Participant if he/she had been an employee January 1 through December 31 , provided, however, that Employer Nonelective Profit Sharing Contributions will not be made to participants, except for TASCO, under the Plan for any Plan Year beginning on or after January 1, 1999.

 

3.3	Termination of Participation

 

An employee who ceases to be a Highly Compensated Employee or a Key Employee during any Plan Year shall cease to be eligible to contribute to the Plan. The employee’s Deferral Elections shall cease on the last day of the Company’s regular accounting period during which eligibility ended. Deferral Elections for that portion of the Plan Year occurring prior to eligibility ending shall remain effective for those amounts of base salary, bonus, stock grants (cash equivalent or stock) and other cash payments for which a Deferral Election was made. A Deferral Election will be treated as null & void for purposes of the Plan Year if a Participant ceases to be a Highly Compensated Employee or a Key Employee between the time the Deferral Election is executed and the time it would become effective.

 

3.4	Service Requirement for Nonelective Profit Sharing and Matching Contributions

 

All years of service with the Employer are counted toward eligibility to participate for purposes of the Nonelective Profit Sharing Contributions and/or Matching Contributions, except as follows.

 

Nonvested Participants

In the case of a Participant whose right to the account balance derived from Employer Nonelective Profit Sharing Contributions and/or Matching Contributions is

forfeitable, years of service before a period of consecutive 1-year breaks in service will not be taken into account in computing eligibility service if the number of consecutive 1-year breaks in service in such period equals or exceeds the greater of:

 

(i)

five; or

 

(ii)

the total number of years of service. Such total number of years of service will not include any years of service disregarded under the preceding sentence by reason of a prior breaks in service.

 

If a Participant’s years of service are disregarded pursuant to the preceding paragraph,

such Participant will be treated as a new Employee for eligibility purposes. If a participant’s years of service may not be disregarded pursuant to the preceding paragraph, such Participant shall continue to participate in the plan, or, if terminated, shall participate immediately upon reemployment.

 

4.1	Deferral E1ections

 

The Participant may elect by completing and returning an election form to the Plan Committee, or its designee, to have the Company contribute all or a portion of the Participant’s base salary, bonus, or stock grant shares pursuant to the Officer Long-Term Stock Grant Plan and the Company may in its sole discretion contribute other cash payments on a Participant’s behalf (collectively “Compensation Deferrals”) to the Plan.

 

The Participant’s Compensation Deferrals shall be made according to the following terms and provisions:

 

a.

base salary may be deferred in a percentage or fixed dollar amount (i) prior to the beginning of, or (ii) as to base salary not yet earned at any time during, the Plan Year. The Participant may elect to discontinue base salary deferral at any time during the Plan Year, provided that the election to discontinue shall be effective until the next salary period following the date of the participant’s election to discontinue;

 

b.

bonus may be deferred prior to the beginning of or during the Bonus Year as follows:

 

(1)

in a percentage amount not to exceed 100%, of the Participant’s bonus if the Participant’s date of election as to such bonus deferral is made four (4) months prior to the end of the Bonus Year; or

 

(2)

in the alternative, in a fixed dollar amount as the Participant may elect for the bonus, but not to exceed 100% of the Participant’s if the Participant’s date of election as to such bonus deferral is made four (4) months prior to the end of the Bonus Year;

 

c.

the fair market value of shares and dividends of participants in the Officer Long-Term Stock Plan (Stock Plan) may be deferred for any shares or dividends not yet earned. A participant in the Stock Plan may defer 100% or a portion of this fair market value in one (1) percent increments. The election to defer shall be made prior to November 1 in the calendar year prior to the calendar year that such stock would be vested pursuant to the Stock Plan;

 

d.

the Plan Committee may reject (i) any or all of a Deferral Election by a Participant for any Plan Year if the Participant’s election form is not timely filed or completed in full compliance with the terms of the form

and of this Plan, and (ii) all Deferral Elections for any Plan Year if the Plan Committee in its sole discretion shall determine at any time prior to the end of the then current Plan Year that deferrals of compensation have become inadvisable by reason of changes in the Federal tax laws, or for any other reason;

 

e.

as to (i) that portion of base salary or bonus for which the Participant has not made a Deferral Election, (ii) a Plan Year for which the Participant has failed to make any Deferral Election, (iii) a Plan Year in which the Plan Committee rejects a Participants Deferral Election, or (iv) a Plan Year in which the Plan Committee rejects all Compensation Deferral Elections, the Participant shall be paid by the company in the usual manner and without regard to this Plan; and

 

f.

the Participant’s base salary, bonus, stock grant shares, and other cash payments are such amounts of compensation as are payable by the Company to the Participant by reason of employment with the Company and without regard to any term or provision of this Plan; no term or provision of this Plan shall amend or be interpreted to alter or change the Company’s compensation policies with regard to the payment of base salary, bonus, stock grant cash equivalent, or other cash payments to employees.

 

4.2	Matching Contributions

 

The Company shall make a Matching Contribution equal to 50 percent of the base salary contributed by or on behalf of each Participant employed by the Company who has satisfied the eligibility requirements in section 3.1 and is employed in a Matching Contributions Unit; provided, however, that no more than 3 percent of the Participant’s gross compensation for any pay period shall be matched by such Matching Contribution.

 

The Matching Contributions to be made on behalf of a Participant for a Plan Year shall be determined by reference to each pay period within such Plan Year during which the Participant has an election in effect with respect to base salary contributed, if a Participant is making contributions of base salary to the Savings Plan and at the same time is making contributions of base salary to this Plan then the Matching Contributions described here and also in section 4.4 of the Savings Plan shall be deposited in the Participant’s account in the RSP first, and if there is any Matching Contributions that cannot be deposited into the Savings Plan they shall be deposited into this Plan. The Matching Contributions shall be allocated to such Participant’s Matching Contributions Account at the same time as the base salary, which it matches.

4.3      Participant’s Accounts

 

a.

Consistent with the terms and provisions of Section 7.1 of this Plan there shall be maintained for each Participant, for bookkeeping purposes only, a separate notional deferred account in the books and records of the Company. Each account shall contain a sub-account for each time and method of payment that the Participant has created by a Deferral Election or time and method of payment elected for either the Nonelective Profit Sharing Contributions or the Matching Contributions to the Plan. Each sub-account shall be credited with the amount of the Participant’s Compensation Deferral, Employer’s Nonelective Profit Sharing Contribution or Matching Contribution and the notional gains, losses and/or accrued interest on such deferrals under this Plan.

 

b.

 

1.

On or after January 1, 1998, amounts credited to a Participant’s Account (except for Stock Plan Deferral subaccount) shall be credited with gains, losses, or interest based upon optional investment directions made by the Participant in accordance with notional investment deferral crediting options and procedures adopted by the Committee from time to time. A Participant may make a change in allocations on a daily basis. The Employer specifically retains the right in its sole discretion to change the notional crediting options and procedures. Nor is the Employer required to follow the Participant’s notional investment directions in any actual investment it may make or acquire in connection with Plan.

 

2.

On or after January 1, 1998, shares, if any, credited to a Participant’s Account (subaccount) as Stock Plan Deferral, shall be maintained and credited or charged, including dividends, stock splits and the like as notional shares only. A Participant may elect to reallocate some or all of his/her balance in Stock Plan Deferral subaccount into one or more of the other notional investment deferral crediting options as adopted by the Committee from time to time. However, a Participant may not reallocate amounts so moved out of the Stock Plan Deferral subaccount back into it; nor may a Participant allocate other deferral amounts into the Stock Plan Deferral subaccount or reallocate other deferral amounts from other notional investment deferral crediting options into the Stock Plan Deferral subaccount.

 

c.

All sub-accounts under this Plan created between January 1, 1992 and December 31, 1997 earned interest at the rate fixed by the Executive Committee of the Board of Directors to be effective on the Payment Date

of each year which rate shall be no less than the average of the prime or reference rates quoted by the Company’s principal lender (the “Reference

Rate(s)”) on the first banking days of March, June, September and

December (the “Reference Date(s)”) immediately preceding the Payment

Date and which was accrued and credited to the sub-account on the annual

Payment Date based upon the average daily balance in the sub-account for the preceding Plan Year. After crediting the sub-account with the accrued

interest all distributions, withdrawals, and other payments to the Participant for the Plan Year were paid from such sub-account based upon the remaining number of installments due to the Participant under this Plan or due to the Participant pursuant to Section 4.5b of this Plan relating to the prior GDCP or SRSP, provided that, as to either: (i) a lump sum distribution payment upon tennination, or (ii) a final installment payment, which did not occur on a Payment Date pursuant to Section 4.5b, such payment earned interest at the rate fixed by the Executive Committee which rate was no less than (x) the Reference Rate quoted on the December Reference Date, or (y) the average of all the Reference Rates quoted on the Reference Dates, preceding the date of such payment during