NASH-FINCH COMPANY
AMENDED AND RESTATED
DIRECTOR DEFERRED COMPENSATION PLAN
1.1 Name .
The name of this plan (the " Plan ”) is the
“Amended and Restated 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 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
.
1.4
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 (a) to amend the 1997 Plan to provide that there may
be no new participants in such plan after December 31, 2004
and that no additional deferrals may be made by participants in
such plan after December 31, 2004, and (b) 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 Section 409A of the Code and the regulations, rulings and
guidance issued thereunder by the U.S. Treasury Department and the
Internal Revenue Service.
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 the 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 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 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.
3.1 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 one hundred
percent (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.
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(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) 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
to the amount of Director Cash Compensation payable with respect to
such Plan Year 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 for
such Plan Year;
(iii) an election,
as described in Section 6.1(b), as to the manner in which the
Participant will receive his or her Separation Benefit for such
Plan Year;
(iv) an election,
as described in Section 6.2(b), as to the manner in which the
Participant will receive his or her Disability Benefit for such
Plan Year;
(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. Elections with respect to a Plan Year succeeding the
Plan Year in which the Participant’s participation commences
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
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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 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 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, but in no event
later than March 15 of the year following the calendar year in
which 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.
(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
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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.
(d) 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.
(e) 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.
(f) Account
Adjustment . As of the close of business on each day on which
trading occurs on the NASDAQ National Market System, 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.
(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 Market Price 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
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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
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 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 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 the Company or the Trust; the
Participant shall at all times remain an unsecured creditor of the
Company. If the Company 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 the Plan.
6.
Distributions of Amounts Credited to Plan Accounts
.
(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 and for each
succeeding Plan Year, 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 fifteen (15) years.
If a Participant does not make any election with respect to the
payment of his or her Separation Benefit for a Plan Year, then such
Participant shall be deemed to have elected to receive the
Separation Benefit in a lump sum for such Plan Year. For purposes
of this Section 6, a single lump sum payment may be made in
the form of cash or Shares. The 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.
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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.
(c) Change in
Election . A Participant may change his or her election with
respect to the payment of a Separation Benefit for each Plan Year
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 twelve (12) months prior to the Participant’s
originally scheduled Benefit Distribution Date for such Plan
Year;
(ii) The
Separation Benefit payment(s) is (are) delayed at least five
(5) years from the Participant’s originally scheduled
Benefit Distribution Date for such Plan Year in accordance with the
requirements of Section 409A(a)(4) of the Code 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 twelve (12) months after the
date on which the election is made for such Plan Year.
(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 and for each
succeeding Plan Year, 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 five (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 lump sum for such Plan Year. The 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 installments, if any, shall be paid no later than
sixty (60) days after each anniversary of the
Participant’s Benefit Distribution Date.
(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
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sum payment
shall be made no later than sixty (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 the 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 the 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 under the Plan is includable in
taxable income under Section 409A of the Code.
7.
Withdrawals for Unforeseeable Emergencies .
7.1 Suspension
of Deferrals; Distribution . If a Participant experiences an
Unforeseeable Emergency, the Participant may petition the
Administrator to suspend deferrals of Director Cash Compensation to
the extent deemed necessary by the Administrator to satisfy the
Unforeseeable Emergency. If suspension of deferrals is not
sufficient to satisfy the Participant’s Unforeseeable
Emergency, or if suspension of deferrals is not required under
applicable tax law, the Participant may further petition the
Administrator to receive a partial or full distribution of his or
her vested Account balance from the Plan.
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7.2 Limitation
on Amount of Distribution . Any distribution under
Section 7.1(a) shall not exceed the lesser of (a) the
Participant’s vested Account balance, calculated as of the
close of business on the date on which the amount becomes payable,
or (b) the amount necessary to satisfy the Unforeseeable
Emergency, plus amounts reasonably necessary to pay taxes
reasonably anticipated as a result of the distribution, all as
determined by the Administrator. Notwithstanding the foregoing, a
Participant may not receive a payout from the Plan to the extent
that the Unforeseeable Emergency is or may be relieved
(i) through reimbursement or compensation by insurance or
otherwise, (ii) by liquidation of the Participant’s
assets, to the extent the liquidation of such assets would not
itself cause severe financial hardship or (iii) by suspension
of deferrals under the Plan, if the Administrator, in its sole
discretion, determines that suspension is required by applicable
tax law. Any distribution pursuant to this Section 7.1 will be
made first from the Participant’s Cash Subaccount and then
from the Participant’s Share Subaccount, with the amount
distributed from the Share Subaccount determined based upon the
Market Price as of the close of business on the date the amount
becomes payable.
7.3 Suspension
of Deferrals . If the Administrator approves a
Participant’s petition for suspension and/or distribution
under Section 7.1(a), the Participant’s deferrals under
the Plan shall be suspended as of the date of such approval. If a
petition for distribution under Section 7.1(a) is approved, the
Participant shall receive the approved distribution from the Plan
within sixty (60) days of the date of such approval. Deferrals
suspended under this Section 7.1 may not recommence until the
first day of the next Plan Year beginning after the date deferrals
ceased.
8.
Beneficiary Designation and Distributions
.
8.1 Manner of
Designation . Each Participant may designate, on a form
prescribed by the Administrator, one or more primary and contingent
Beneficiaries to receive his or her Account balance after his or
her death. A Participant may change or revoke any Beneficiary
designation at any time. Any such designation, change or revocation
will be effective only if a properly completed beneficiary
designation form is executed by the Participant and received by the
Administrator during the Participant’s lifetime. Upon receipt
by the Administrator of a new beneficiary designation form, all
beneficiary designations previously filed shall be
canceled.
8.2 Spousal
Consent . No designation of a primary Beneficiary other than
the Participant’s spouse is effective unless the spouse
consents to the designa
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