(ii) the occurrence of an Unforeseeable Emergency; provided that a withdrawal with respect to an Unforeseeable Emergency may not exceed the amount necessary to satisfy the emergency need, plus amounts necessary to pay taxes reasonably anticipated as a result of the distribution, after taking into account the extent to which such hardship is or may be relieved through reimbursement or compensation by insurance or otherwise or by liquidation of the Participant’s assets (to the extent the liquidation of such assets itself would not cause severe financial hardship); or
(iii) Separation from Service.
(b) Key Employee. Notwithstanding anything to the contrary, if a Participant elected in his Bonus Deferral Election to defer until Separation from Service, and the Participant is a key employee, then payment to such Participant with respect to amounts deferred after December 31, 2004 may not be made or begin prior to the date that is six months after the date of the Participant’s Separation from Service. A key employee for this purpose has the same meaning as in Section 416(i) of the Code without regard to paragraph (5) thereof.
(c) Deferred Time of Payment. In the discretion of the Committee, a Participant may elect to modify the form and time at which payment of his benefit shall be paid, in accordance with the following:
(i) For deferrals not subject to Section 409A of the Code (i.e., Compensation with respect to services performed prior to January 1, 2005), at any time at least six months prior to the start of the calendar year in which the Participant’s scheduled payment date otherwise would have occurred;
(ii) For deferrals that are subject to Section 409A of the Code:
(1) any such election must be received by the Committee or its designee no less than twelve (12) months prior to the Participant’s scheduled payment date;
(2) the election shall not take effect until twelve (12) months after the date on which the new election is made; and
(3) the payment with respect to which such election is made is deferred for a period of not less than 5 years from the date the payment otherwise would have been made.
The Committee, in its discretion, may limit the number of times a Participant may modify his elected time of payment and establish such other limitations as it deems advisable for the proper administration of the Plan. With respect to deferrals attributable to periods after December 31, 2004, and related hypothetical earnings, the time or schedule of any payment under the Plan may not be accelerated except as permitted pursuant to Section 409A of the Code.
Notwithstanding anything to the contrary, a Participant shall have one election in effect at any given time that applies to distributions under both this Plan and under the Executive Savings Investment Plan, and the most recent distribution election under either this Plan or the Executive Savings Investment Plan shall apply to and shall supersede any previous distribution elections under the other plan.
5.2 Amount Distributed. The amount distributed to a Participant shall be determined as of the Allocation Date as of which distribution is made, or as of the most recent Allocation Date preceding the date as of which distribution is made, pursuant to the Committee’s practice for different methods of distributions, with actual payment occurring as soon as practicable thereafter.
5.3 Method of Distribution. Distribution to a Participant under this Plan shall be made in the same form as the Participant has elected with respect to his benefits under the Ralcorp Holdings, Inc. Deferred Compensation Plan for Key Employees. If a Participant does not have such an election in effect under the Ralcorp Holdings, Inc. Deferred Compensation Plan for Key Employees, he shall elect the method of distribution from among any of the following forms, as specified on the Participant’s Deferral Election, subject to change pursuant to Section 5.1(c):
(a) Single payment in the form(s) determined pursuant to Section 5.4;
(b) Annual installments over five years; or
(c) Annual installments over ten years.
A Participant may elect a different method of distribution for a distribution upon a Change in Control than upon a Separation from Service. If a Participant does not make a timely election for the method of distribution, his method of distribution shall be a lump sum.
5.4 Form of Payment. All payments made pursuant to this Plan shall be in cash, except for amounts credited to the Ralcorp Holdings, Inc. Common Stock Fund, which shall be paid in Stock, subject in any case to the Committee’s discretion to change the form of payment.
5.5 Distribution Upon Death. If a Participant dies before commencing the payment of his Account, the unpaid Account balance shall be paid to a Participant’s designated Beneficiary in a single payment in the form(s) determined pursuant to Section 5.4 within sixty (60) days following the Participant’s date of death.
5.6 Designation of Beneficiary. A Participant shall designate a Beneficiary on a form to be supplied by the Committee. The Beneficiary designation may be changed by the Participant at any time, but any such change shall not be effective until the Beneficiary designation form completed by the Participant is delivered to and received by the Committee. In the event that the Committee receives more than one Beneficiary designation form from the Participant, the form bearing the most recent date shall be controlling. If the Committee does not have a valid Beneficiary designation of a Participant at the time of the Participant’s death, then the Participant’s beneficiary shall be the Participant’s estate.
NON-ASSIGNABILITY
6.1 Non-Assignability. Neither a Participant nor any Beneficiary of a Participant shall have any right to commute, sell, assign, pledge, transfer or otherwise convey the right to receive his Account until his Account is actually distributed to a Participant or his Beneficiary. The portion of the Account which has not been distributed shall not be subject to attachment, garnishment or execution for the payment of any debts, judgments, alimony or separate maintenance and shall not be transferable by operation of law in the event of bankruptcy or insolvency of a Participant or a Participant’s Beneficiary.
VESTING
7.1 Vesting. Each Participant shall be fully (100%) vested in his Basic Matched Contributions and Basic Unmatched Contributions, and earnings thereon, at all times. The vested percentage of a Participant’s Company Matching Contributions and earnings thereon shall be determined in accordance with the following schedule:
Completed Years of Service | Vested Percentage |
1 | 25% |
2 | 50% |
3 | 75% |
| 4 or more | 100% |
Upon a Participant’s Separation from Service, the amount credited to the Participant’s Account that is not vested shall be forfeited.
AMENDMENT OR TERMINATION OF THE PLAN
8.1 Power to Amend Plan. The power to amend, modify or terminate this Plan at any time is reserved to the Committee, except that a Chief Executive Officer of the Company may make amendments to resolve ambiguities, supply omissions and cure defects, any amendments deemed necessary or desirable to comply with federal tax law or regulations to avoid adverse tax consequences, and any other amendments deemed necessary or desirable, which shall be reported to the Committee. Notwithstanding the foregoing, no amendment, modification or termination which would reasonably be considered to be adverse to a Participant or Beneficiary may apply to or affect the terms of any deferral of Compensation prior to the effective date of such amendment, modification or termination, without the consent of the participant or Beneficiary affected thereby. Any amendment made in accordance with this Section 8.1 is binding upon all Participants and their Beneficiaries, the Committee and all other parties in interest.
8.2 Distribution of Plan Benefits Upon Termination. Upon the full termination of the Plan, the Committee shall direct the distribution of the benefits of the Plan to the Participants in a manner that is consistent with and satisfies the provisions of Article V and Section 409A of the Code to the extent applicable.
8.3 When Amendments Take Effect. A resolution amending or terminating the Plan becomes effective as of the date specified therein.
8.4 Restriction on Retroactive Amendments. No amendment may be made that retroactively deprives a Participant of any benefit accrued before the date of the amendment.
PLAN ADMINISTRATION
9.1 Powers of the Committee. In carrying out its duties with respect to the general administration of the Plan, the Committee has, in addition to any other powers conferred by the Plan or by law, the following powers:
(a) to determine all questions relating to eligibility to participate in the Plan;
(b) to compute and certify to an appropriate party the amount and kind of distributions payable to Participants and their Beneficiaries;
(c) to maintain all records necessary for the administration of the Plan that are not maintained by any recordkeeper;
(d) to interpret the provisions of the Plan and to make and publish such rules for the administration of the Plan as are not inconsistent with the terms thereof;
(e) to establish and modify the method of accounting for the Plan;
(f) to employ counsel, accountants and other consultants to aid in exercising its powers and carrying out its duties hereunder; and
(g) to perform any other acts necessary and proper for the administration of the Plan.
(a) Indemnification of Members of the Committee by the Company. The Company agrees to indemnify and hold harmless each member of the Committee against any and all expenses and liabilities arising out of his action or failure to act in such capacity, excepting only expenses and liabilities arising out of his own willful misconduct or gross negligence. This right of indemnification is in addition to any other rights to which any member of the Committee may be entitled.
(b) Liabilities for Which Members of the Committee are Indemnified. Liabilities and expenses against which a member of the Committee is indemnified hereunder include, without limitation, the amount of any settlement or judgment, costs, counsel fees and related charges reasonably incurred in connection with a claim asserted or a proceeding brought against him or the settlement thereof.
(c) Company’s Right to Settle Claims. The Company may, at its own expense, settle any claim asserted or proceeding brought against any member of the Committee when such settlement appears to be in the best interests of the Company.
9.3 Claims Procedure. A Participant or Beneficiary or other person who feels he is entitled to a benefit or right provided under the Plan (hereinafter referred to as “Claimant”) may make a claim, i.e., a request for benefits under this Plan, pursuant to the Committee’s procedures.
(a) Company Action. The Company shall, within 90 days after its receipt of such claim, make its determination. However, if special circumstances require an extension of time for processing the claim, the Company shall furnish the Claimant, within 90 days after its receipt of such claim, written notification of the extension explaining the circumstances requiring such extension and the date that it is anticipated that such written statement will be furnished, and shall provide such Claimant with its determination not later than 180 days after receipt of the Claimant’s claim.
In the event the claim is denied, the Company shall provide such Claimant a written statement of the Adverse Benefit Determination, as defined in Subsection (d) below. The notice of Adverse Benefit Determination shall be delivered or mailed to the Claimant by certified or registered mail to his last known address, which statement shall contain the following:
(i) the specific reason or reasons for Adverse Benefit Determination;
(ii) a reference to the specific provisions of the Plan upon which the Adverse Benefit Determination is based;
(iii) a description of any additional material or information that is necessary for the Claimant to perfect the claim;
(iv) an explanation of why that material or information is necessary; and
(v) an explanation of the review procedure provided below, including applicable time limits and a notice of a Claimant’s rights to bring a legal action under ERISA after an Adverse Benefit Determination on appeal.
(b) Procedures for Appealing an Adverse Benefit Determination. Within 60 days after receipt of a notice of an Adverse Benefit Determination as provided above, if the Claimant disagrees with the Adverse Benefit Determination, the Claimant, or his authorized representative, may request, in writing, that the Committee review his claim and may request to appear before the Committee for such review. If the Claimant does not request a review of the Adverse Benefit Determination within such 60 day period, he shall be barred and estopped from appealing the Company’s Adverse Benefit Determination. Any appeal shall be filed with the Committee at the address prescribed by the Committee, and it shall be considered filed on the date it is received by the addressee. In deciding any appeal, the Committee shall act in its capacity as a named Fiduciary.
The Claimant shall have the rights to:
(i) submit written comments, documents, records and other information relating to the claim for benefits;
(ii) request, free of charge, reasonable access to, and copies of all documents, records and other information relevant to his claim for benefits.
(c) Response on Appeal. Within 60 days after receipt by the Committee of a written application for review of a Claimant’s claim, the Committee shall notify the Claimant of its decision by delivery or by certified or registered mail to his last known address; provided, however, in the event that special circumstances require an extension of time for processing such application, the Committee shall so notify the Claimant of its decision not later than 120 days after receipt of such application.
In the event the Committee’s decision on appeal is adverse to the Claimant, the Committee shall issue a written notice of an Adverse Benefit Determination on Appeal that will contain all of the following information, in a manner calculated to be understood by the Claimant:
(i) the specific reason(s) for the Adverse Benefit Determination on Appeal;
(ii) reference to specific plan provisions on which the benefit determination is based;
(iii) a statement that the Claimant is entitled to receive, upon request and free of charge, reasonable access to and copies of all documents, records and other information relevant to the Claimant’s claim for benefits; and a statement of the Claimant’s right to bring an action under ERISA Section 502(a).
(d) Definition. As used herein, the term “Adverse Benefit Determination” shall mean a determination that results in any of the following: the denial, reduction, or termination of, or a failure to provide or make payment (in whole or in part) for, a benefit, including any such denial, reduction, termination, or failure to provide or make payment that is based on a determination of the Claimant’s eligibility to participate in the Plan.
(e) A Claimant may bring a legal action with respect to a claim only if (i) all procedures described above have been exhausted, and (ii) the action is commenced within ninety (90) days after a decision on review is furnished.
9.4 Expenses. All expenses of the Committee with respect to the Plan shall be paid by the Company.
9.5 Conclusiveness of Action. Any action on matters within the discretion of the Committee will be conclusive, final and binding upon all Participants and upon all persons claiming any rights under the Plan, including Beneficiaries.
MISCELLANEOUS
10.1 Plan Not a Contract of Employment. The adoption and maintenance of the Plan does not constitute a contract between the Company and any Participant or to be a consideration for the employment of any person. Nothing herein contained gives any Participant the right to be retained in the employ of the Company or derogates from the right of the Company to discharge any Participant at any time without regard to the effect of such discharge upon his rights as a Participant in the Plan.
10.2 No Rights Under Plan Except as Set Forth Herein. Nothing in this Plan, express or implied, is intended, or shall be construed, to confer upon or give to any person, firm, association, or corporation, other than the parties hereto and their successors in interest, any right, remedy, or claim under or by reason of this Plan or any covenant, condition, or stipulation hereof, and all covenants, conditions and stipulations in this Plan, by or on behalf of any party, are for the sole and exclusive benefit of the parties hereto.
10.3 Rules. The Committee shall have full and complete discretionary authority to construe and interpret provisions of the Plan. The Committee may adopt such rules as it deems necessary, desirable or appropriate. All rules and decisions shall be uniformly applied to all Participants in similar circumstances.
10.4 Withholding of Taxes. The Committee shall cause taxes to be withheld from an Account distributed hereunder as required by law, and shall comply with all reporting requirements applicable to amounts deferred and distributed under this Plan.
10.5 Severability. If any provision of this Plan is determined to be invalid or illegal, the remaining provisions shall be effective and shall be interpreted as if the invalid or illegal provision did not exist, unless the illegal or invalid provision is of such materiality that its omission defeats the purposes of the parties in entering into this Plan.
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SIGNATURE PAGE
IN WITNESS WHEREOF, Ralcorp Holdings, Inc. has caused these presents to be executed by its duly authorized officer this _____ day of __________________.
RALCORP HOLDINGS, INC.
By: ___________________________________
Title:__________________________________
U.S. Department of Labor
Employee Benefits Security Administration
Top Hat Plan Exemption
200 Constitution Avenue NW, Suite N-1513
Washington, DC 20210
Re: Notice of Plan of Deferred Compensation
Dear Sir/Madam:
Pursuant to DOL Regulation section 2520.104-23, the undersigned employer hereby files the following information with respect to its plan of deferred compensation:
1. Name, address and federal EIN of employer:
Ralcorp Holdings, Inc.
800 Market Street, Suite 2900
St. Louis, Missouri 63101
43-1766315
2. The employer maintains three plans of deferred compensation primarily for the purpose of providing deferred compensation to a select group of management or highly compensated employees.
3. Number of employees covered by such plans: ____.
RALCORP HOLDINGS, INC.
By: ____________________________________
