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CAL-MAINE FOODS, INC.
AMENDED AND RESTATED
DEFERRED COMPENSATION PLAN
RECITALS
This Amended and Restated Deferred Compensation Plan (the “
Plan
”) is adopted by Cal-Maine
Foods, Inc. (the “
Company
”), a Delaware corporation, for the benefit of a select group of the
Company’s management or highly compensated employees. The Company is amending and restating
the Plan to reflect certain design changes to the Plan and to otherwise meet current needs of the
Company. The purpose of the Plan is to offer selected Eligible Employees an opportunity to elect to
defer a portion of their Base Salary and/or Bonus Compensation, and to continue to provide a deferred
compensation vehicle to which the Company may credit discretionary amounts on behalf of
Participants.
This Plan replaces and supersedes the Deferred Compensation Plan previously adopted by the
Company on December 11, 2006, and subsequently amended on September 25, 2008 and
December 10, 2008 (the “
Prior Plan
”). Nothing in this amendment and restatement should be
construed as changing the time and form of payment of the Prior Plan. From and after the Effective
Date of this amendment and restatement, all entitlement to benefits under the Prior Plan and this Plan
shall be determined solely in accordance with the terms of this Plan, as amended from time to time in
accordance with Article 10.
The Company intends this Plan shall at all times be administered and interpreted in such a
manner as to constitute an unfunded nonqualified plan maintained primarily for the purpose of
providing deferred compensation for a select group of management or highly-compensated Employees,
and as such, is intended to be exempt from the provisions of Parts 2, 3, and 4 of Title I of the Employee
Retirement Income Security Act of 1974 (“
ERISA
”), as amended, by operation of Sections 201(2),
301(a)(3) and 401(a)(1) thereof.
The Plan is intended to comply in form and operation with all applicable law, including, to the
extent applicable, the requirements of Internal Revenue Code Section 409A and will be administered,
operated and construed in accordance with this intention.
Accordingly, this amendment and restatement is adopted as of December 1, 2021.
ARTICLE 1
DEFINITIONS
The words and phrases defined in this Article shall have the meaning set out in the definition,
unless the context in which the word or phrase appears reasonably requires a broader, narrower or
different meaning.
1.1 “
Account
” shall mean all bookkeeping accounts pertaining to a Participant which are
maintained by the Plan Administrator or Plan recordkeeper to reflect the Company’s obligation to the
Participant under the Plan, including a Deferral Account, a Long-Term Incentive Contribution Account,
and In-Service Accounts (if any). The Plan Administrator or Plan recordkeeper shall establish additional
subaccounts that the Plan Administrator considers necessary to reflect the entire interest of the
Participant under the Plan.
1.2 “
Affiliate
” shall mean any business entity other than the Company that is a member of
a controlled group of corporations, within the meaning of Section 414(b) of the Code, of which such
Company is a member; any other trade or business (whether or not incorporated) under common
control, within the meaning of Section 414(c) of the Internal Revenue Code.
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1.3 “
Base Salary
” shall mean a Participant’s base annual salary excluding incentive and
discretionary bonuses and other non-regular forms of compensation, before reductions for
contributions to or deferrals under any pension, deferred compensation or benefit plans sponsored by
the Company.
1.4 “
Beneficiary
” or “
Beneficiaries
” shall mean one or more persons, trusts, estates or
other entities, designated by a Participant in accordance with the Plan, that are entitled to receive
benefits under the Plan upon the death of a Participant.
1.5 “
Beneficiary Designation Form
” shall mean the form established from time to time
by the Plan Administrator that a Participant completes, signs, and returns to the Plan Administrator to
designate one or more Beneficiaries.
1.6 “
Board
” shall mean the Board of Directors of the Company.
1.7 “
Bonus Compensation
” shall mean amounts paid to a Participant by the Company in
the form of incentive compensation or any other bonus designated by the Company before reductions
for contributions to or deferrals under any pension, deferred compensation or benefit plans sponsored
by the Company.
1.8 “
Cause
” shall mean conduct by a Participant determined by the Company to be: (a)
gross negligence or willful malfeasance in the performance of his or her duties; (b) actions or omissions
that harm the Company and are undertaken or omitted knowingly or are criminal or fraudulent or
involve material dishonesty or moral turpitude; (c) being indicted in a court of law for any felony or
for a crime involving misuse or misappropriation of Company funds; or (d) breach of fiduciary duty to
the Company
1.9 “
Change in Control
” shall mean and shall include a change in ownership or effective
control of the Company or a change in the ownership of a substantial portion of the assets of the
Company, within the meaning of Internal Revenue Code Section 409A and as described in Treasury
Regulation §§1.409A -3(i)(5)(v), (vi) and (vii); however, a Change in Control shall not be deemed to
have occurred if the aforementioned changes involve the purchase or acquisition of shares or assets
by immediate family members of the shareholders of record as of the Effective Date of this Plan.
1.10 “
Claimant
” shall mean a Participant or a Beneficiary who believes that he or she is
entitled to a benefit under this Plan or is being denied a benefit to which he or she is entitled hereunder.
1.11 “
Code
” shall mean the U.S. Internal Revenue Code of 1986, as amended, or any
successor statue, and the Treasury Regulations and other authoritative guidance issued thereunder.
1.12 “
Committee
” shall mean the Committee appointed by the Board to administer the Plan
pursuant to Article 12 hereof. If no such Committee has been appointed, then the term “
Committee
”
shall mean the Company.
1.13 “
Company
” shall mean Cal-Maine Foods, Inc., and its successors and assigns, unless
otherwise provided in this Plan, or any other corporation or business organization which, with the
consent of Cal-Maine Foods, Inc., or its successors or assigns, assumes the Company’s obligations
under this Plan, or any Affiliate which agrees, with the consent of Cal-Maine Foods, Inc., or its
successors or assigns, to become a party to the Plan.
1.14 “
Deemed Investment
” shall mean the notional conversion of the balance held in a
Participant’s Account(s) into shares or units of the Deemed Investment Options that are used as
measuring devices for determining the value of a Participant’s Account(s).
1.15 “
Deemed Investment Options
” shall mean the hypothetical securities or other
investments described under Section 6.1 from which the Plan Administrator may select to be used as
measuring devices to determine the Deemed Investment gains or losses of a Participant’s Account(s).
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A Participant shall have no real or beneficial ownership in the security or other investment represented
by the Deemed Investment Options.
1.16 “
Deferral Account
” shall mean: (a) the sum of a Participant’s Deferral Amounts (if any)
for any Plan Year or Performance Period that may be allocated, in whole or in part, by the Participant
pursuant to his or her Deferral Election to the Deferral Account, plus (b) Deemed Investment gains or
losses credited or debited thereon, less (c) any distributions made to the Participant or his or her
Beneficiary, and tax withholding amounts deducted (if any) from the Participant’s Deferral Account.
1.17 “
Deferral Amount
” shall mean that portion of a Participant’s Base Salary and/or Bonus
Compensation that a Participant elects to defer for any Plan Year or Performance Period.
1.18 “
Deferral Election
” shall mean an election by an Eligible Employee on an Election Form
approved by the Plan Administrator (in a paper or electronic format) to defer a portion of his or her
Base Salary and/or Bonus Compensation in accordance with the provisions of Article 3.
1.19 “
Effective Date
” shall mean December 1, 2021 for this amendment and restatement,
and shall mean December 11, 2006 for the commencement of the Plan.
1.20 “
Election Form
” shall mean the form or forms established from time to time by the
Plan Administrator (in a paper or electronic format) on which the Participant makes certain designations
as required under the terms of this Plan.
1.21 “
Eligibility Date
” shall mean the date designated by the Plan Administrator on which
an Eligible Employee shall become eligible to participate in the Plan.
1.22 “
Eligible Employee
” shall mean for any calendar year (or applicable portion of a
calendar year), an Employee who is in the select group of management of the Company or is a highly
compensated Employee of the Company, and is determined by the Committee, or its designee, to be
eligible to participate in the Plan.
1.23 “
Employee
” shall mean an individual who provides services to the Company in the
capacity of a common law Employee of the Company.
1.24 “
ERISA
” shall mean the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the regulations and guidance promulgated thereunder.
1.25 “
In-Service Account
” shall mean: (a) the sum of a Participant’s Deferral Amounts for
any Plan Year or Performance Period that may be allocated, in whole or in part, by the Participant
pursuant to his or her Deferral Election to an In-Service Account, plus (b) Deemed Investment gains
or losses credited or debited thereon less (c) any distributions made to the Participant or his or her
Beneficiary, and tax withholding amounts that relate to the Participant’s In-Service Account.
1.26 “
Long-Term Incentive Contribution
” shall mean the deferred compensation amount
credited on behalf of a Participant by the Company to the Long-Term Incentive Contribution Account,
as described in Section 5.2.
1.27 “
Long-Term Incentive Contribution Account
” shall mean: (a) the sum of the Long-
Term Incentive Contribution amounts (if any) for any Plan Year that the Company may allocate to a
Participant’s Long-Term Incentive Contribution Account, plus (b) Deemed Investment gains or losses
credited or debited thereon, less (c) any distributions made to the Participant or his or her Beneficiary,
and tax withholding amounts deducted (if any) from the Participant’s Long-Term Incentive Contribution
Account.
1.28 “
Participant
” shall mean an Eligible Employee of the Company who has met the
requirements of participation under Article 2 and who participates in the Plan in accordance with the
terms and conditions of the Plan.
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1.29 “
Participation Agreement
” shall mean the agreement executed by the Eligible
Employee whereby he or she agrees to participate in the Plan.
1.30 “
Performance Period
” shall mean, with respect to any Bonus Compensation, the
period of time over which such Bonus Compensation is earned.
1.31 “
Plan
” shall mean this Amended and Restated Deferred Compensation Plan, as
evidenced by this written instrument, Participation Agreements, Election Forms, and any other forms
as may be required by the Plan Administrator, as amended from time to time. For purposes of Section
409A, the portion of the amounts deferred by a Participant and Deemed Investment gains or losses
credited or debited thereon, shall be considered an elective account balance plan as defined in Treasury
Regulations §1.409A-1(c)(2)(i)(A), or as otherwise provided by the Code; the portion of the amounts
deferred as Long-Term Incentive Contributions together with Deemed Investment gains or losses
credited or debited thereon, shall be considered a nonelective account balance plan as defined in
Treasury Regulations §1.409A-1(c)(2)(i)(B), or as otherwise provided in the Code.
1.32 “
Plan Administrator
” shall mean the Committee as appointed by the Board pursuant
to Article 12. A Participant may not participate in any action on a matter which applies solely to that
person’s individual benefits under the Plan.
1.33 “
Plan Year
” shall mean, for the first Plan Year, the period beginning on the Effective
Date and ending December 31 of such calendar Year; and thereafter shall mean a twelve (12) month
period beginning January 1 of each calendar year and continuing through December 31 of such
calendar year during which the Plan is in effect.
1.34 “
Section 409A
” shall mean Code Section 409A and the Treasury Regulations or other
authoritative guidance issued thereunder.
1.35 “
Separation from Service
” or “
Separates from Service
” shall mean a Participant has
experienced a termination of employment with the Company. Whether a termination of employment
or service has occurred is determined based on whether the facts and circumstances indicate that the
Company and the Participant reasonably anticipated that no further services would be performed after
a certain date or that the level of bona fide services the Participant would perform after such date
(whether as an Employee or as an independent contractor) would permanently decrease to no more
than twenty percent (20%) of the average level of bona fide services performed by the Participant
(whether as an Employee or as an independent contractor) over the immediately preceding 36-month
period (or the full period during which the Participant performed services for the Company, if that is
less than 36 months).
1.36 “
Specified Time
” shall mean, with respect to a Participant’s In-Service Account, the
date on which the In-Service Account shall be paid to the Participant.
1.37 “
Treasury Regulation
” or “
Treasury Regulations
” shall mean regulations
promulgated by the Internal Revenue Service for the U.S. Department of the Treasury, as they may
be amended from time to time.
1.38 “
Unforeseeable Emergency
” shall mean: (a) a severe financial hardship to a
Participant resulting from an illness or accident of the Participant, the Participant’s spouse, the
Participant’s Beneficiary, or the Participant’s dependents (as defined in Code Section 152 (without
regard to Code Sections 152(b)(1), (b)(2), and (d)(1)(B)); (b ) loss of the Participant’s property due
to casualty; or (c) other similar extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the Participant. The Plan Administrator will determine whether a
Participant incurs an Unforeseeable Emergency based on the relevant facts and circumstances and in
accordance with Treasury Regulations §1.409A-3(i)(3).
1.39 “
Valuation Date
” shall mean the date through which Deemed Investment gains and/or
losses are credited or debited to a Participant’s Account(s). For purposes of providing benefits under
the terms of the Plan, the Valuation Date shall be the event date triggering payment of the Account
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under the terms of the Plan, or such date as close to the payment date as is administratively feasible.
The Valuation Date shall be interpreted as each day at the close of business of the New York Stock
Exchange (currently 4:00 p.m. Eastern Time), on days that the New York Stock Exchange is open for
trading or any other day on which there is sufficient trading in securities of the applicable fund to
materially affect the unit value of the fund and the corresponding unit value of the Participant's Deemed
Investment Option(s).
1.40 “
Year of Service
” shall mean a consecutive twelve (12) month period during which a
Participant is employed on a full-time basis by the Company, inclusive of any approved leaves of
absence, beginning on the Participant’s date of hire.
ARTICLE 2
ELIGIBILITY AND PARTICIPATION
2.1
Selection
. Participation in this Plan shall be limited to those Eligible Employees of the
Company or Affiliates, as determined by the Plan Administrator in its sole and absolute discretion.
2.2
Enrollment Requirements
. As a condition of participation in this Plan, each Eligible
Employee shall complete, execute, and submit to the Plan Administrator a Participation Agreement,
Beneficiary Designation Form, and any other Election Forms required by the Plan Administrator within
the time specified by the Plan Administrator in accordance with the terms and conditions of the Plan.
In addition, the Plan Administrator shall establish such other enrollment requirements as it deems
necessary or advisable.
2.3
Re-employment
. The re-employment of a former Participant by the Company shall not
entitle such individual to become a Participant hereunder. Such individual shall not become a
Participant until the individual is again designated as an Eligible Employee in accordance with Section
2.1. If a Participant who has experienced a Separation from Service is receiving installment
distributions pursuant to the terms of the Plan and is re-employed by the Company, distributions due
to the Participant shall not be suspended.
2.4
Ceasing to be an Eligible Employee
. The Plan Administrator may remove an Eligible
Employee from further active participation in the Plan at its discretion. If this occurs, the Participant
shall not have additional amounts credited to the Long -Term Incentive Contribution Account and shall
be prevented from making Participant Deferral Elections for subsequent Plan Years or Performance
Periods. Any existing Deferral Election shall continue in effect for the remainder of the Plan Year or
Performance Period and may only be cancelled in accordance with Sectio n 3.4(b) hereof.
2.5
Termination of Participation
. A Participant will cease to be a Participant as of the date
on which his or her entire Account balance has been distributed or forfeited.
ARTICLE 3
DEFERRAL ELECTIONS
3.1
Minimum and Maximum
Period (as applicable), if offered by the Company, a Participant shall specify the percentage or dollar
amount of Base Salary and/or Bonus Compensation to be deferred subject to the minimums or
maximums (if any) established by the Plan Administrator and communicated to the Participant on the
Election Form.
3.2
Deferral Elections
(a)
Application
. This Section 3.2 applies to each Eligible Employee who first
becomes eligible to participate in the Plan. The Plan Administrator shall determine (in
accordance with Treasury Regulation §1.409A-2(a)(7)(ii)) the date upon which a Participant
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who ceased being eligible to participate in the Plan, can again become eligible to participate in
the Plan.
(b)
Deferral Election
. An Eligible Employee described in Section 3.2(a) may elect
to defer receipt of Base Salary earned during such Plan Year or his or her Bonus Compensation
earned during a Performance Period by filing a Deferral Election with the Plan Administrator in
accordance with the following rules:
(i)
Timing; Irrevocability
. The Deferral Election must be filed with the Plan
Administrator by, and shall become irrevocable as of, the thirtieth (30th) day following
the Participant’s Eligibility Date (or such earlier date as specified by the Plan
Administrator).
(ii)
Base Salary
. The Deferral Election shall only apply to Base Salary earned
during such calendar year beginning with the first payroll period that begins immediately
after the date the Deferral Election becomes irrevocable. Base Salary payable after the
last day of a calendar year solely for services performed during the final payroll period,
described in Section 3401(b) of the Code, containing December 31 of such year shall be
treated as earned during the subsequent calendar year.
(iii)
Bonus Compensation
. Where a Deferral Election is filed in the first year
of eligibility but after the commencement of the Performance Period, then, except as
otherwise provided in Section 3.3 below, the Deferral Election shall only apply to that
portion of Bonus Compensation earned for such Performance Period equal to the total
amount of the Bonus Compensation earned during such Performance Period multiplied
by a fraction, the numerator of which is the number of days beginning on the day
immediately after the date that the Deferral Election becomes irrevocable and ending on
the last day of the Performance Period, and the denominator of which is the total number
of days in the Performance Period.
3.3
Annual Deferral Elections
. Unless Section 3.2 applies, each Eligible Employee may
elect to defer receipt of Base Salary for a Plan Year or his or her Bonus Compensation for a Performance
Period, by filing a Deferral Election with the Plan Administrator in accordance with the following rules:
(a)
Base Salary
. The Deferral Election with respect to Base Salary must be filed with
the Plan Administrator by, and shall become irrevocable following, December 31 (or such earlier
date as specified by the Plan Administrator on the Deferral Election ) of the calendar year next
preceding the calendar year for which such amounts would otherwise be earned.
(b)
Bonus Compensation
. The Deferral Election with respect to Bonus
Compensation must be filed with the Plan Administrator by, and shall become irrevocable
following, December 31 (or such earlier date as specified by the Plan Administrator on the
Deferral Election) of the calendar year next preceding the first day of the Performance Period
for which such Bonus Compensation would otherwise be earned. If the Company has a fiscal
year other than the calendar year, Bonus Compensation relating to services in the fiscal year
of the Company, of which no amount is paid or payable during the fiscal year, may be deferred
at the Participant’s election if the Deferral Election is made not later than the close of the
Company’s fiscal year next preceding the first fiscal year in which the Participant performs any
services for which such Bonus Compensation is payable. Any Deferral Election with respect to
Bonus Compensation that constitutes “
performance-based compensation
” under Treasury
Regulation §1.409A-1(e)(1), must be filed with the Plan Administrator by, and shall become
irrevocable as of, the date that is six (6) months before the end of the applicable Performance
Period (or such earlier date as specified by the Plan Administrator on the Deferral Election),
provided that in no event may such Deferral Election be filed after such Bonus Compensation
has become “
readily ascertainable
” within the meaning of Section 409A.
3.4 Duration and Cancellation of Deferral Elections.
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(a)
Duration
. Once irrevocable, a Deferral Election shall only be effective for the
Plan Year or Performance Period with respect to which such election was timely filed with the
Plan Administrator. Except as provided in Section 3.4(b), a Deferral Election, once irrevocable,
cannot be cancelled or altered during a Plan Year or Performance Period.
(b)
Cancellation
. Pursuant to Treasury Regulation §1.409A-3(j)(4)(viii), the Plan
Administrator must cancel a Participant's Deferral Election due to an Unforeseeable Emergency
distribution. If a Participant’s Deferral Election is cancelled, the Participant may complete a new
Deferral Election for a subsequent Plan Year or Performance Period, only in accordance with
Section 3.3.
ARTICLE 4
ACCOUNT ALLOCATION AND DISTRIBUTION ELECTIONS
4.1
Establishment and Maintenance of Participant Account(s).
shall establish and maintain a Deferral Account, a Long-Term Incentive Contribution Account, and an
In-Service Account for each Plan Year, as applicable, in the name of each Participant, and any other
subaccounts deemed necessary by the Plan Administrator for proper tracking of the benefit obligation.
4.2
Account Allocation
. Concurrent with any Deferral Election, a Participant may make an
irrevocable election to allocate all or a portion of his or her elected Deferral Amount to a Plan Year
Deferral Account and/or a Plan Year In-Service Account. To the extent that a Participant does not
designate the Account to which Deferral Amounts will be allocated for a Plan Year, or such designation
is ambiguous or does not comply with the terms of the Plan, such Deferral Amounts shall be allocated
and credited to the Participant’s Plan Year Deferral Account. Long-Term Incentive Contributions shall
not be allocated to an In-Service Account, and instead shall be allocated to a Participant’s Plan Year
Long-Term Incentive Contribution Account.
4.3
In-Service Account Elections
. If a Participant elects to allocate Deferral Amounts for
a Plan Year into an In-Service Account in accordance with Section 4.2, the Participant shall make an
election as to the year in which payment will be made or commence from that In-Service Account (the
“
Specified Time
”). A Participant may elect to receive a distribution of a Plan Year In-Service Account
no sooner than January 1st of the fifth (5th) Plan Year following the Plan Year of the deferral. (For
example: If a Participant elects to allocate 2022 Deferral Amounts into an In-Service Account, the
earliest date these Deferral Amounts could be distributed would be January 1, 2027). A Participant
must also elect whether a Plan Year In-Service Account will be paid in a lump sum or in four (4) annual
installments. To the extent that the elections are ambiguous or do not comply with the terms of this
Section, then that In-Service Account shall be paid at the earliest permissible date in accordance with
this Section and/or in a lump sum.
4.4
Other Distribution Elections
. A Participant’s Account shall be paid to the Participant
or Beneficiary in accordance with the terms of the payment events described in Article 8.
(a)
Separation from Service
. Within thirty (30) days following a Participant’s
Eligibility Date, a Participant must elect whether to be paid in a lump sum or in five (5), ten
(10), or fifteen (15) annual installments for Separation from Service. Thereafter, coinciding with
each annual enrollment, Participants will make a separate distribution election for Separation
form Service which will apply to the following Plan Year’s Deferral Account and Long-Term
Incentive Contribution Account. To the extent that these distribution elections are ambiguous
or do not comply with the terms of this Section, a Participant shall be deemed to have elected
to be paid in ten (10) annual installments. Notwithstanding the above, pursuant to the terms
of the Prior Plan, Participants were allowed a one-time election upon plan entry as to the time
and form of payment for distribution of amounts contributed to the Plan prior to January 1,
2022.
(b)
Death
. Within thirty (30) days following a Participant’s Eligibility Date, a
Participant must elect whether to be paid in a lump sum or in five (5), ten (10), or fifteen (15)
8
annual installments for death. To the extent that the distribution election is ambiguous or does
not comply with the terms of this Section, a Participant shall be deemed to have elected to be
paid in ten (10) annual installments. Notwithstanding the above, pursuant to the terms of the
Prior Plan, Participants were allowed a one-time election upon plan entry as to the form of
payment for amounts contributed to the Plan prior to January 1, 2022. For those Participants
enrolled in the Plan at the time of this amendment and restatement, a new one-time distribution
election for death may be made for amounts contributed to the Plan on or after January 1,
2022.
ARTICLE 5
CREDITING OF AMOUNTS
5.1
Withholding and Crediting of Deferral Amounts
. For each Plan Year, the Base Salary
portion of the Deferral Amount shall be withheld from each regularly scheduled payroll in approximately
equal amounts (or as otherwise specified by the Plan Administrator), as adjusted from time to time for
increases and decreases in Base Salary (if the Participant’s Deferral Election is expressed as a
percentage). The Bonus Compensation portion of the Deferral Amount shall be withheld as soon as
administratively feasible following the time the Bonus Compensation otherwise would be paid to the
Participant, whether or not this occurs during the Plan Year or Performance Period as the case may be.
Participant Deferral Amounts shall be credited to the Participant Deferral Account and/or to an In-
Service Account as soon as administratively feasible following the time such amounts would otherwise
have been paid to a Participant.
5.2
Crediting of Long-Term Incentive Contributions
. Each Plan Year, the Company may
credit a Long-Term Incentive Contribution to the Plan on behalf of a Participant in such amount as the
Company shall determine in its sole discretion. The Company is under no obligation to credit a Long-
Term Incentive Contribution for a Plan Year, and Long-Term Incentive Contributions, if made, need
not be uniform among Participants. Any Long-Term Incentive Contribution shall be credited to a
Participant's Long-Term Incentive Contribution Account on such date as determined by the Plan
Administrator.
ARTICLE 6
DEEMED INVESTMENT GAINS OR LOSSES
6.1
Deemed Investment Options
. The Plan Administrator will determine the available
Deemed Investment Options for purposes of crediting or debiting the Deemed Investment gains or
losses to the Account. The Plan Administrator may discontinue, substitute, or add Deemed Investment
Options in its sole discretion on a prospective basis. Any discontinuance, substitution, or addition of a
Deemed Investment Option will take effect as soon as administratively practicable. The Deemed
Investment Options are to be used for measurement purposes only, and the Plan Administrator’s
selection of any such Deemed Investment Option, the allocation of such Deemed Investment Options
to the Account, the calculation of additional amounts, and the crediting or debiting of such amounts to
the Account shall not be considered or construed in any manner as an actual investment of the Account.
The Plan 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 Deemed Investment Option. Without limiting the foregoing, the
Account shall at all times be a bookkeeping entry only and shall not represent any investment made
on his or her behalf by the Plan Administrator. A Participant (or Beneficiary) shall at all times remain
an unsecured creditor of the Company. Any liability or obligation of the Company to any Participant,
former Participant, or Beneficiary with respect to a right to payment shall be based solely upon
contractual obligations created by this Plan.
6.2
Participant’s Allocation of Deemed Investment Options
. Each Participant shall
have the right to direct the Plan Administrator as to how the Participant’s Deferral Amounts and Long-
Term Incentive Contributions shall be deemed to be invested among the Deemed Investment Options
offered under the Plan, subject to any rule, policy, practice or procedure adopted by the Plan
9
Administrator. As of each Valuation Date, the Participant’s Account(s) will be credited or debited to
reflect the performance of the Deemed Investment Options elected by the Participant. If a Deemed
Investment Option selected by a Participant sustains a loss, the Participant’s Account(s) shall be
reduced to reflect such loss. If the Participant fails to elect a Deemed Investment Option the Deemed
Investment shall be based on an investment as may be established by the Plan Administrator.
6.3
Participant Responsibilities
. Each Participant is solely responsible for any and all
consequences of his or her investment directions made pursuant to this Article 6. Neither the Company,
any of its directors, officers or employees, nor the Plan 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 this Article 6.
6.4
No Required Investment of Company Assets
. Notwithstanding anything contained
herein to the contrary, the Company reserves the right to invest its assets, including any assets that
may have been set aside for the purpose of funding the benefits to be provided under the Plan, at its
own discretion, and such assets shall remain the property of the Company, or may be held in a trust,
as the case may be, subject to the claims of the general creditors of the Company, and no Participant
shall have any right to any portion of such assets other than as an unsecured general creditor of the
Company.
ARTICLE 7
VESTING / FORFEITURES / TAXES
7.1
Participant Accounts
. A Participant shall at all times be one hundred percent (100%)
vested in his or her Deferral Account and In-Service Account(s).
7.2
Long-Term Incentive Contribution Account
. Unless otherwise stated in a
Participant’s Participation Agreement, Long-Term Incentive Contributions shall be tracked separately
for each Plan Year and shall become one hundred percent (100%) vested on December 31st of the
fifth (5th) Plan Year following the year such contribution is credited to the Plan. For example: a
contribution credited in December 2021 will 100% vest on 12/31/2026; a contribution credited in
December 2022 will 100% vest on 12/31/2027; and so on.
7.3
Acceleration of Vesting
. Notwithstanding any vesting schedule to the contrary, a
Participant shall become one hundred percent (100%) vested upon the earlier of the following events:
(a) attainment of age sixty (60) with five (5) Years of Service or (b) the Company’s Change in Control.
Additionally, the Company may accelerate a Participant’s vesting at any time in its sole discretion
provided that such acceleration complies with Section 409A.
7.4
Forfeitures
. Notwithstanding any other provision to the contrary herein, in the event a
Participant’s employment is involuntarily terminated for Cause, no benefits of any kind will be due or
payable by the Company under the terms of this Plan from the Participant’s Long-Term Incentive
Contribution Account, for amounts contributed on or after the date of this amendment and
restatement, and all rights of the Participant, his or her designated Beneficiary, executors, or
administrators, or any other person, to receive payments thereof shall be forfeited. Additionally, a
Participant will forfeit any portion of an Account that is not vested upon Separation from Service.
7.5
Taxes and Withholding
. Deferral Amounts, Long-Term Incentive Contributions, and
Deemed Investment gains and/or losses on each are subject to the Federal Insurance Contribution Act
(FICA) and the Federal Unemployment Tax Act (FUTA) to the extent provided under applicable Code
provisions, and benefits payable under the Plan are subject to all applicable federal, state, city, income,
employment or other taxes as may be required to be withheld or paid. A Participant is solely responsible
for the payment of all individual tax liabilities relating to any such benefits.
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ARTICLE 8
PAYMENT OF ACCOUNT(S)
8.1 Payments in General.
(a)
Payment Events
.
(i) A Participant (or, in the event of the death of the Participant, the
Participant’s Beneficiary) shall be entitled to a benefit equal to the Participant’s vested
Account(s) balance as of the earliest payment event to occur under Article 8.
(ii) Unless the vested balance of a Participant’s In-Service Account has been
paid earlier in accordance with this Article 8, the Participant shall be entitled to a benefit
equal to such vested Account balance at the Specified Time.
(b)
Source of Payments
. The Company will pay, from its general assets, the portion
of any benefit payable pursuant to this Article 8 that is attributable to a Participant’s Account,
and all costs, charges and expenses relating thereto.
(c)
Calculation of Installment Payments
. The amount of each subsequent
installment shall be determined by dividing the value of the Participant’s Account(s) as of the
December 31st preceding each installment by the number of installments remaining to be paid.
(By way of example, if the Participant is to receive payment in annual installments over a period
of five (5) years, the first payment shall equal 1/5 of the Account balance. The following year,
the payment shall be 1/4 of the Account balance. The final installment payment shall be equal
to the balance of the Account(s), calculated as of the applicable anniversary date.) Any unpaid
Account balance shall continue to be deemed to be credited or debited with Deemed Investment
gains or losses pursuant to Article 6, in which case any deemed income, gains, losses, or
expenses shall be reflected in the actual payments. Notwithstanding any election of
installments, if a Participant’s vested Account balance at the due date of the first installment is
ten thousand dollars ($10,000.00) or less, excluding In-Service Accounts, payment of the
vested Account balance shall be made instead in one (1) lump sum payment, and no installment
payments shall be available hereunder.
(d)
Changes in Timing or Form of Distributions
. Upon the Company’s approval,
a Participant may delay the time of payment or change the form of payment as expressly
provided under this Section 8.1(d) and Section 409A (hereinafter, a “
Subsequent Deferral
Election
”). Notwithstanding the foregoing, a Subsequent Deferral Election cannot accelerate
any payment. A Subsequent Deferral Election which delays payment or changes the form of
payment is permitted only if all of the following requirements are met:
(i) The Subsequent Deferral Election does not take effect until at least twelve
(12) months after the date on which the Subsequent Deferral Election is made and
approved by the Plan Administrator;
(ii) If the Subsequent Deferral Election relates to a payment based on
Separation from Service or at a Specified Time, the Subsequent Deferral Election must
result in payment being deferred for a period of not less than five (5) years from the
date the first amount was scheduled to be paid;
(iii) If the Subsequent Deferral Election relates to a payment at a Specified
Time, the Participant must make the Subsequent Deferral Election not less than twelve
(12) months before the date the first amount was scheduled to be paid.
For purposes of applying this Section 8.1(d), installment payments shall be treated as a “
single
payment.
” Any election made pursuant to this Section shall be made on such Election Forms or
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electronic media as is required by the Plan Administrator, in accordance with the rules established by
the Plan Administrator and shall comply with all requirements of Section 409A.
8.2
Separation from Service
. Except as otherwise stated in Section 8.6, in the event of a
Participant’s Separation from Service (other than for death), the Company shall pay to the Participant
his or her vested Account balance in the form of payment elected by the Participant pursuant to Section
4.4(a). Payment shall be made or commence six (6) months following the date of Separation from
Service based on the value of the Account as close to the payout date as administratively feasible.
Subsequent installments, if any, shall be paid on January 15th of each calendar year thereafter and
calculated in accordance with Section 8.1(c). In the event of a Participant’s death after installments
have commenced, as applicable, but prior to the receipt of all installments owed, the Company shall
continue to pay any remaining installments to the Participant’s Beneficiary in accordance with the
schedule the installments would have otherwise been paid to the Participant.
8.3
Death While Employed
. Except as otherwise stated in Section 8.6, in the event a
Participant dies while employed by the Company, the Company shall pay to the Participant’s Beneficiary
the Participant’s vested Account balance, in the form of payment elected by the Participant pursuant
to Section 4.4(b). Payment shall be made or commence six (6) months following the date of the
Participant’s death based on the value of the Account as close to the payout date as administratively
feasible. Subsequent installments, if any, shall be paid on January 15th of each calendar year
thereafter and calculated in accordance with Section 8.1(c).
8.4
Payment at a Specified Time
. A Participant shall be paid the vested balance of an In-
Service Account in the time and form of payment elected by the Participant on his or her timely
submitted Election Form in accordance with Section 4.3. Payment shall be made or commence at the
Specified Time, with subsequent installments, if any, paid on the anniversary of the Specified Date and
calculated in accordance with Section 8.1(c).
8.5
Payment due to an Unforeseeable Emergency
. A Participant shall have the right to
request, on a form provided by the Plan Administrator, a payment of all or a portion of his or her
vested Deferral Account balance, in a lump sum payment due to an Unforeseeable Emergency. The
Plan Administrator shall have the sole discretion to determine, in accordance with the standards under
Section 409A, whether to grant such a request and the amount to be paid pursuant to such request.
(a)
Determination of Unforeseeable Emergency
. Whether a Participant is faced
with an Unforeseeable Emergency permitting a lump sum payment is to be determined based
on the relevant facts and circumstances of each case, but, in any case, a payment on account
of an Unforeseeable Emergency may not be made to the extent that such emergency is or may
be relieved through reimbursement or compensation from insurance or otherwise, by liquidation
of the Participant’s assets, to the extent the liquidation of such assets would not cause severe
financial hardship, or by cessation of deferrals under the Plan. Payments because of an
Unforeseeable Emergency must be limited to the amount reasonably necessary to satisfy the
emergency need (which may include amounts necessary to pay any federal, state, local, or
foreign income taxes or penalties reasonably anticipated to result from the payment).
(b)
Payment of Account
. Payment shall be made within thirty (30) days following
the determination by the Plan Administrator that a payment will be permitted under this Section
8.5.
8.6
Prior Plan Distributions
. For Participants enrolled in the Plan as of the date of this
amendment and restatement, distributions for Accounts established prior to the 2022 Plan Year shall
be made in accordance with the terms of the Prior Plan. For purposes of clarity, those distributions are
as follows:
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(a)
In General
. Upon entry into the Prior Plan, Participants were allowed to elect to
be paid either (i) upon Separation from Service or (ii) upon the earlier of Separation from
Service or an in-service payment date elected by the Participant that was the first day of any
month coincident with or next following attainment of age sixty-five (65).
(b)
Separation from Service prior to age 55
. In the event of a Participant’s
Separation from Service (other than for death) prior to age fifty-five (55), the Company shall
pay to the Participant his or her vested Account balance, based on the value of the Account as
close to the payout date as administratively feasible, in a lump sum, six (6) months following
the date of Separation from Service.
(c)
Separation from Service on or after age 55
. In the event of a Participant’s
Separation from Service on or after age fifty-five (55), the Company shall pay to the Participant
his or her vested Account balance, in the number of annual installments elected by the
Participant upon his or her initial enrollment into the Plan. Payment shall be made or commence
six (6) months following the date of Separation from Service based on the value of the Account
as close to the payout date as administratively feasible. Subsequent installments, if any, shall
be paid on January 15th of each calendar year thereafter and calculated in accordance with
Section 8.1(c).
(d)
Death While Employed
. In the event of a Participant’s death while employed
by the Company, the Company shall pay to the Participant his or her vested Account balance
in the number of annual installments elected by the Participant upon his or her initial enrollment
into the Plan. Payment shall be made or commence six (6) months following the date of death,
based on the value of the Account as close to the payout date as administratively feasible.
Subsequent installments, if any, shall be paid on January 15th of each calendar year thereafter
and calculated in accordance with Section 8.1(c).
(e)
Prior Plan In-Service Payment Date
. If a Participant elected to be upon the
earlier of Separation from Service or an in-service payment date, and the Participant is still
employed on the elected in-service payment date, payment shall be made or commence on the
date elected by the Participant based on the value of the Account as close to the payout date
as administratively feasible. Subsequent installments, if any, shall be paid on January 15th of
each calendar year thereafter and calculated in accordance with Section 8.1(c).
8.7
Permissible Accelerations
. Except as specifically permitted herein or in other sections
of this Plan, no acceleration of the time or schedule of any payment may be made hereunder.
Notwithstanding the foregoing, payments may be accelerated hereunder by the Company (without any
direct or indirect election on the part of any Participant), in accordance with the provisions of Treasury
Regulation §1.409A-3(j)(4) and any subsequent guidance issued by the United States Treasury
Department. Accordingly, payments may be accelerated, in accordance with the provisions of Treasury
Regulation §1.409A-3(j)(4) in the following circumstances: (a) in limited cashouts (but not in excess
of the limit under Code Section 402(g)(1)(B)); (b) to pay employment-related taxes; or (c) to pay any
taxes that may become due at any time that the Plan fails to meet the requirements of Section 409A
(but in no case shall such payments exceed the amount to be included in income as a result of the
failure to comply with the requirements of Section 409A).
8.8
Specified Employee of a Public Company
. If a Participant is considered a “
specified
employee
” of a public company, pursuant to Code Section 409A(a)(2)(B)(i), then solely to the extent
necessary to avoid penalties under Section 409A, payments to be made as a result of a Separation
from Service under this Article may not commence earlier than six (6) months after the Participant’s
Separation from Service. In the event a distribution is delayed pursuant to this paragraph, any amounts
otherwise payable during the six months shall be accumulated and paid in a lump sum on the first day
of the seventh month following Separation from Service.
13
8.9
Rights of Participant and Beneficiary
.
(a)
Creditor Status of Participant and Beneficiary
. The Plan constitutes the
unfunded, unsecured promise of the Company to make payments to a Participant or Beneficiary
in the future and shall be a liability solely against the general assets of the Company. The
Company shall not be required to segregate, set aside or escrow any amounts for the benefit
of a Participant or Beneficiary. A Participant and Beneficiary shall have the status of a general
unsecured creditor of the Company and may look only to the Company and its general assets
for payment of benefits under the Plan.
(b)
Investments
. In its sole discretion, the Company may acquire insurance
policies, annuities or other financial vehicles for the purpose of providing future assets of the
Company to meet its anticipated liabilities under the Plan. Such policies, annuities or other
investments shall at all times be and remain unrestricted general property and assets of the
Company. A Participant and his or her designated Beneficiary shall have no rights, other than
as general creditors, with respect to such policies, annuities or other acquired assets. In the
event that the Company purchases an insurance policy or policies insuring the life of a
Participant or Employee, to allow the Company to recover or meet the cost of providing benefits,
in whole or in part, hereunder, no Participant or Beneficiary shall have any rights whatsoever
in said policy or the proceeds therefrom. The Company shall be the sole owner and beneficiary
of any such insurance policy or property and shall possess and may exercise all incidents of
ownership therein. A Participant further agrees to sign any forms and consent necessary for
such life insurance including the consent under Code Section 101(j) for the Company to be
owner and beneficiary of the insurance on the Participant’s life. If the Company chooses to
obtain insurance on the life of a Participant in connection with its obligations under this Plan,
the Participant hereby agrees to take such physical examinations and to truthfully and
completely supply such information as may be required by the Company or the insurance
company designated by the Company. No insurance policy with regard to any director, “
highly
compensated employee,
” or “
highly compensated individual,
” as defined in Code Section
101(j) shall be acquired before satisfying the Code Section 101(j) “
Notice and Consent
”
requirements.
8.10
Discharge of Obligations
. The payment to a Participant or his or her Beneficiary of
the Account balance in full shall discharge all obligations of the Company to such Participant or
Beneficiary under the Plan.
ARTICLE 9
BENEFICIARY DESIGNATION
9.1
Designation of Beneficiaries
.
(a) Each Participant may designate any person or persons (who may be named
contingently or successively) to receive any benefits payable under the Plan upon the
Participant’s death, and the designation may be changed from time to time by the Participant
by filing a new designation. Each designation will revoke all prior designations by the same
Participant, shall be in the form prescribed by the Company, and shall be effective only when
signed by the Participant and filed with the Company during the Participant’s lifetime.
(b) In the absence of a valid Beneficiary designation, or if, at the time any benefit
payment is due to a Beneficiary, there is no living Beneficiary validly named by the Participant,
the Company shall pay the benefit payment to the Participant’s spouse, if then living, and if the
spouse is not then living to the executors or administrators of the estate of the Participant. In
determining the existence or identity of anyone entitled to a benefit payment, the Company
may rely conclusively upon information supplied by the Participant’s personal representative,
executor, or administrator.
14
(c) A Participant’s designation of a Beneficiary will not be revoked or changed
automatically by any future marriage or divorce. Should the Participant wish to change the
designated Beneficiary in the event of a future marriage or divorce, the Participant will have to
do so by means of filing a new designation.
(d) If a question arises as to the existence or identity of anyone entitled to receive a
death benefit payment under the Plan, or if a dispute arises with respect to any death benefit
payment under the Plan, the Company may distribute the payment to the Participant’s estate
without liability for any tax or other consequences, or may take any other action which the
Company deems to be appropriate.
9.2
Information to be furnished by Participants and Beneficiaries
; Inability to Locate
Participants or Beneficiaries. Any communication, statement or notice addressed to a Participant or to
a Beneficiary at his or her last post office address as shown on the Company’s records shall be binding
on the Participant or Beneficiary for all purposes of the Plan. The Company shall not be obliged to
search for any Participant or Beneficiary beyond the sending of a registered letter to such last known
address.
9.3
Facility of Payment
. If the Plan Administrator determines in its discretion that a benefit
is to be paid to a minor, to a person legally declared incompetent, or to a person legally deemed
incapable of handling the disposition of that person’s property, the Plan Administrator may direct
payment of such benefit to the guardian, legal representative or person having care or custody of such
minor, incompetent person or incapable person. The Plan Administrator may require proof of
incompetence, minority or guardianship as it may deem appropriate prior to payment of the benefit.
Any distribution of a benefit shall be a distribution for the account of the Participant and the Beneficiary,
as the case may be, and shall be a complete discharge of any liability under the Plan for such
distribution amount.
ARTICLE 10
PLAN AMENDMENT
10.1
Right to Amend
. The Board may amend the Plan, at any time and with respect to any
provisions hereof, and all parties hereto or claiming any interest hereunder shall be bound by such
amendment; provided, however, that no such amendment shall deprive a Participant or a Beneficiary
of a benefit amount accrued hereunder prior to the date of the amendment without written consent of
the Participant or Beneficiary.
10.2
Amendments Required By Law
. Notwithstanding the provisions of Section 10.1, the
Plan may be amended by the Company at any time, retroactively if required, if found necessary, in the
opinion of the Company, without written consent of Participants and Beneficiaries, in order to ensure
that the Plan is characterized as a “
top-hat
” plan of deferred compensation maintained for a select
group of management or highly compensated employees as described under ERISA sections 201(2),
301(a)(3), and 401(a)(1), to conform the Plan to the provisions of Section 409A, and to conform the
Plan to the requirements of any other applicable law (including but not limited to ERISA and the Code).
ARTICLE 11
PLAN TERMINATION
11.1
Company’s Right to Suspend Plan
.
The Board reserves the right to suspend the operation of the Plan for a fixed or indeterminate
period of time, in its sole discretion. In the event of a suspension of the Plan, during the period of the
suspension, the Plan Administrator shall continue all aspects of the Plan other than crediting of Long-
Term Incentive Contributions, and Deferral Amounts shall be suspended effective with the first day of
the Plan Year following the date the Plan is suspended. Payments of distributions will continue to be
made during the period of the suspension in accordance with Article 8.
15
11.2
Plan Termination and Liquidation under Section 409A
. The Board reserves the
right to terminate the Plan at any time without the consent of Participants. Notwithstanding anything
to the contrary in Section 11.1, any acceleration of the payment of benefits due to Plan termination
and liquidation shall comply with the following subparagraphs, but only as permitted in accordance
with Section 409A and Treasury Regulation §1.409A-3(j)(4)(ix). The Plan Administrator may distribute
all Participants’ vested Account balances, determined as of the date of the termination of the Plan,
subject to the terms below:
(a) Upon the Board’s termination of this and all other arrangements that would be
aggregated with this Plan pursuant to Treasury Regulation §1.409A-1(c) if a Participant
participated in such arrangements (“
Similar Arrangements
”), provided that: (i) the
termination does not occur proximate to a downturn in the financial health of the Company; (ii)
all termination distributions are made no earlier than twelve (12) months and no later than
twenty-four (24) months following such termination; and (iii) the Company does not adopt any
new arrangement that would be a Similar Arrangement for a minimum of three (3) years
following the date the Company takes all necessary action to irrevocably terminate and liquidate
the Plan.
(b) Upon the Company’s dissolution taxed under Code Section 331, or with approval
of a bankruptcy court, provided that the amounts deferred under the Plan are included in the
Participant’s gross income in the latest of: (i) the calendar year in which the Plan terminates;
(ii) the calendar year in which the amount is no longer subject to a substantial risk of forfeiture;
or (iii) the first calendar year in which the payment is administratively practicable; or
(c) Within thirty (30) days before or twelve (12) months after a Change in Control,
provided that all distributions are made no later than twelve (12) months following such
termination of the Plan and further provided that all the Company’s Similar Arrangements are
terminated so the Participant and all participants in the Similar Arrangements are required to
receive all amounts of compensation deferred under the terminated arrangements within twelve
(12) months of the termination of the Plan.
ARTICLE 12
PLAN ADMINISTRATION
12.1
General Plan Administration
. The Board or its designee shall appoint a Committee
consisting of not less than three (3) persons to administer the Plan. Any member of the Committee
may at any time be removed, with or without cause, and his or her successor appointed by the Chief
Executive Officer of the Company or his or her designee, and any vacancy caused by death, resignation
or other reason shall be filled by the Chief Executive Officer of the Company or his or her designee.
The Committee shall be the Plan Administrator and in general shall be responsible for the management
and administration of the Plan. The Committee shall have full power to administer the Plan in all of its
details, subject to applicable requirements of law. No member of the Committee who is an Employee
of the Company shall receive compensation for his or her services to the Plan. The fiscal records of the
Plan shall be maintained on the basis of the Plan Year.
12.2
Plan Administrator Authority
. The Plan Administrator shall enforce this Plan in
accordance with its terms, shall be charged with the general administration of this Plan, and shall have
all powers necessary to accomplish its purposes, including, but not by way of limitation, the following:
(a) To construe and interpret the terms and provisions of this Plan and to reconcile
any inconsistency, in its sole and absolute discretion;
(b) To compute and certify the amount payable to Participants and Beneficiaries; to
determine the time and manner in which such benefits are paid; and to determine the amount
of any withholding taxes to be deducted;
16
(c) To maintain all records that may be necessary for the administration of this Plan;
(d) To provide for the disclosure of all information and the filing or provision of all
reports and statements to Participants, Beneficiaries, and governmental agencies as shall be
required by law;
(e) To make and publish such rules for the regulation of this Plan and procedures for
the administration of this Plan so long as no such rules or procedures are not inconsistent with
the terms hereof;
(f) To administer this Plan’s claims procedures;
(g) To approve the forms and procedures for use under this Plan; and
(h) To employ such persons or organizations, including without limitation, actuaries,
attorneys, accountants, independent fiduciaries, recordkeepers, and administrative
consultants, to render advice or perform services with respect to the responsibilities of the Plan
Administrator under the Plan.
Committee Procedures
.
The Committee may act at a meeting or in writing without a meeting. The Committee may
adopt such by-laws and regulations as it deems desirable for the conduct of its affairs. All decisions
shall be made by majority vote (whether in a meeting or by written action). No member of the
Committee who is at any time a Participant in this Plan shall vote in a decision of the Committee
(whether in a meeting or by written action) made specifically and uniquely with respect to such member
of the Committee regarding amount, payment, timing, form or other aspect of the benefits of such
Committee member under this Plan.
12.4
Indemnification of Committee Members
The Company shall indemnify and hold harmless each member of the Committee against any
and all liability, claims, damages and expense (including all expenses reasonably incurred in the
Committee member’s defense in the event that the Company fails to provide such defense upon the
Committee Member’s written request) which the Committee member may incur while acting in good
faith in the administration of the Plan.
12.5
Compliance with Section 409A
.
(a) Notwithstanding anything contained herein to the contrary, the interpretation
and distribution of Participants’ benefits under the Plan shall be made in a manner and at such
times as to comply with all applicable provisions of Section 409A and the regulations and
guidance promulgated thereunder, or an exception or exclusion therefrom to avoid the
imposition of any accelerated or additional taxes. Any defined terms shall be construed
consistent with Section 409A and any terms not specifically defined shall have the meaning set
forth in Section 409A.
(b) The intent of this Section is to ensure that the Participants are not subject to any
tax liability or interest penalty, by reason of the application of Code Section 409A(a)(1) as a
result of any failure to comply with all the requirements of Section 409A, and this Section shall
be interpreted in light of, and consistent with, such requirements. This Section shall apply to
distributions under the Plan, but only to the extent required in order to avoid taxation of, or
interest penalties on, a Participant under Section 409A. These rules shall also be deemed
modified or supplemented by such other rules as may be necessary, from time to time, to
comply with Section 409A.
17
ARTICLE 13
CLAIMS PROCEDURES
13.1
Claims Procedure
. This Article is based on Department of Labor Regulation Section
2560.503-1. If any provision of this Article conflicts with the requirements of those regulations, the
requirements of those regulations will prevail. A Claimant who has not received benefits under the Plan
that he or she believes should be paid shall make a claim for such benefits as follows:
(a)
Initiation
request for the benefits to the Plan Administrator. The Plan Administrator will, upon written
request of a Claimant, make available copies of all forms and instructions necessary to file a
claim for benefits or advise the Claimant where such forms and instructions may be obtained.
(b)
Timing of Company Response
. The Plan Administrator shall respond to such
Claimant within ninety (90) days after receiving the claim. If the Plan Administrator determines
that special circumstances require additional time for processing the claim, the Plan
Administrator can extend the response period by an additional ninety (90) days by notifying
the Claimant in writing prior to the end of the initial 90-day period that an additional period is
required. Any notice of extension must set forth the special circumstances requiring an
extension of time and the date by which the Plan Administrator expects to render its decision.
(c)
Notice of Decision
. If the Plan Administrator denies the claim, in whole or in
part, the Plan Administrator shall notify the Claimant in writing of such denial. The Plan
Administrator shall write the notification in a manner calculated to be understood by the
Claimant. The notification shall set forth:
(i) The specific reasons for the denial;
(ii) A reference to the specific provisions of the Plan on which the denial is
based;
(iii) A description of any additional information or material necessary for the
Claimant to perfect the claim and an explanation of why it is needed;
(iv) An explanation of the Plan's review procedures and the time limits
applicable to such procedures; and
(v) A statement of the Claimant’s right to bring a civil action under ERISA
Section 502(a) following an adverse benefit determination on review.
13.2
Review Procedure
. If the Plan Administrator denies the claim, in whole or in part, the
Claimant shall have the opportunity for a full and fair review by the Plan Administrator of the denial,
as follows:
(a)
Initiation
(60) days after receiving the Plan Administrator’s notice of denial, must file with the Plan
Administrator a written request for review.
(b)
Additional Submissions
the opportunity to submit written comments, documents, records and other information relating
to the claim. The Plan Administrator shall also provide the Claimant, upon request and free of
charge, reasonable access to, and copies of, all documents, records and other information
relevant (as defined in applicable ERISA regulations) to the Claimant’s claim for benefits.
18
(c)
Considerations on Review
. In considering the review, the Plan Administrator
shall take into account all comments, documents, records and other information submitted by
the Claimant relating to the claim, without regard to whether such information was submitted
or considered in the initial benefit determination.
(d)
Timing of Company Response
. The Plan Administrator shall respond in writing
to such Claimant within sixty (60) days after receiving the request for review. If the Plan
Administrator determines that special circumstances require additional time for processing the
claim, the Plan Administrator can extend the response period by an additional sixty (60) days
by notifying the Claimant in writing, prior to the end of the initial 60-day period that an
additional period is required. The notice of extension must set forth the special circumstances
and the date by which the Plan Administrator expects to render its decision.
(e)
Notice of Decision
. The Plan Administrator shall notify the Claimant in writing
of its decision on review. The Plan Administrator shall write the notification in a manner
calculated to be understood by the Claimant. The notification shall set forth:
(i) The specific reasons for the denial;
(ii) A reference to the specific provisions of the Plan on which the denial 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 (as defined in applicable ERISA regulations) to the Claimant's claim
for benefits; and
(iv) A statement of the Claimant's right to bring a civil action under ERISA
Section 502(a).
13.3
Calculation of Time Periods
. For purposes of the time periods specified in this Article,
the period of time during which a benefit determination is required to be made begins at the time a
claim is filed in accordance with the Plan procedures without regard to whether all the information
necessary to make a decision accompanies the claim. If a period of time is extended due to a Claimant's
failure to submit all information necessary, the period for making the determination shall be tolled
from the date the notification is sent to the Claimant until the date the Claimant responds.
13.4
Exhaustion of Remedies
. A Claimant must follow the claims review procedures under
this Plan and exhaust his or her administrative remedies before taking any further action with respect
to a claim for benefits.
13.5
Failure of Plan to Follow Procedures
. If the Plan fails to establish or follow the claims
procedures required by this Article, a Claimant shall be deemed to have exhausted the administrative
remedies available under the Plan and shall be entitled to immediately pursue any available remedy
under ERISA Section 502(a) on the basis that the Plan has failed to provide a reasonable claims
procedure that would yield a decision on the merits of the claim. The Claimant may request a written
explanation of the violation from the Plan, and the Plan must provide such explanation within ten (10)
days, including a specific description of its bases, if any, for asserting that the violation should not
cause the administrative remedies to be deemed exhausted. If a court rejects the Claimant’s request
for immediate review on the basis that the Plan met the standards for the exception, the claim shall
be considered as re-filed on appeal upon the Plan’s receipt of the decision of the court. Within a
reasonable time after the receipt of the decision, the Plan shall provide the claimant with notice of the
resubmission.
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ARTICLE 14
THE TRUST
14.1
Establishment of Trust
. The Company may establish a grantor trust (the “
Trust
”), of
which the Company is the grantor, within the meaning of subpart E, part I, subchapter J, subtitle A of
the Code, to pay benefits under this Plan. To the extent such benefits are not paid from the Trust, the
benefits shall be paid from the general assets of the Company. The Trust (if any) shall be a grantor
trust similar to the terms of the model trust as described in IRS Revenue Procedure 92-64, I.R.B.
1992-33, as same may be amended or modified from time to time. If the Company establishes a Trust,
the assets of the Trust will be subject to the claims of the Company’s creditors in the event of its
insolvency. Except as may otherwise be provided under the Trust, the Company shall not be obligated
to set aside, earmark, or escrow any funds or other assets to satisfy its obligations under this Plan,
and a Participant and/or his or her designated Beneficiaries shall not have any property interest in any
specific assets of the Company other than the unsecured right to receive payments from the Company,
as provided in this Plan.
14.2
Interrelationship of the Plan and the Trust
. The provisions of this Plan shall govern
the rights of a Participant to receive distributions pursuant to this Plan. The provisions of the Trust (if
established) shall govern the rights of a Participant and the creditors of the Company to the assets
transferred to the Trust. The Company and each Participant shall at all times remain liable to carry out
its obligations under this Plan. The Company’s obligations under this Plan may be satisfied with Trust
assets distributed pursuant to the terms of the Trust.
14.3
Contribution to the Trust
. Amounts may be contributed by the Company to the Trust
at the sole discretion of the Company.
ARTICLE 15
MISCELLANEOUS
15.1
Validity
. In case any provision of this Plan shall be illegal or invalid for any reason, said
illegality or invalidity shall not affect the remaining parts hereof, but this Plan shall be construed and
enforced as if such illegal or invalid provision had never been inserted herein.
15.2
Nonassignability
. Neither a Participant nor any other person shall have any right to
commute, sell, assign, transfer, pledge, anticipate, mortgage, or otherwise encumber, transfer,
hypothecate, alienate, or convey in advance of actual receipt, the amounts, if any, payable hereunder,
or any part hereof, which are, and all rights to which are expressly declared to be, unassignable and
non-transferable. No part of the amounts payable shall, prior to actual payment, be subject to seizure,
attachment, garnishment or sequestration for the payment of any debts, judgments, alimony, or
separate maintenance owed by a Participant or any other person, be transferable by operation of law
in the event of a Participant’s or any other person’s bankruptcy or insolvency, or be transferable to a
spouse as a result of a property settlement or otherwise. If any Participant, Beneficiary, or successor
in interest is adjudicated bankrupt or purports to commute, sell, assign, transfer, pledge, anticipate,
mortgage or otherwise encumber transfer, hypothecate, alienate, or convey in advance of actual
receipt, the amount, if any, payable hereunder, or any part thereof, the Plan Administrator, in its
discretion, may cancel such distribution or payment (or any part thereof) to or for the benefit of such
Participant, Beneficiary, or successor in interest in such manner as the Plan Administrator shall direct.
15.3
Not a Contract of Employment
. The terms and conditions of this Plan shall not be
deemed to constitute a contract of employment between the Company and any Participant. Nothing in
this Plan shall be deemed to give a Participant the right to be retained in the service of the Company
as an Employee or otherwise, or to interfere with the right of the Company to discipline or discharge
the Participant at any time.
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15.4
Governing Law
. The Plan shall be administered, construed and governed in all respects
under and by the laws of the State of Mississippi, without reference to the principles of conflicts of law
(except and to the extent preempted by applicable federal law).
15.5
Notice
. Any notice, consent or demand required or permitted to be given under the
provisions of this Plan shall be in writing and shall be signed by the party giving or making the same.
If such notice, consent or demand is mailed, it shall be sent by United States certified mail, postage
prepaid, addressed to the addressee’s last known address as shown on the records of the Company.
The date of such mailing shall be deemed the date of notice consent or demand. Any person may
change the address to which notice is to be sent by giving notice of the change of address in the
manner aforesaid.
15.6
Coordination with Other Benefits
. The benefits provided for a Participant or a
Participant’s Beneficiary under this Plan are in addition to any other benefits available to such
Participant under any other plan or program for employees of the Company. This Plan shall supplement
and shall not supersede, modify, or amend any other such plan or program except as may otherwise
be expressly provided herein.
15.7
Unclaimed Benefits
. In the case of a benefit payable on behalf of a Participant, if the
Plan Administrator is unable to locate such Participant or his or her Beneficiary after reasonable efforts
have been undertaken by the Plan Administrator to locate such party(ies), such Plan benefit may be
forfeited to the Company upon the Plan Administrator’s determination. Notwithstanding the foregoing,
if, subsequent to any such forfeiture, the Participant or Beneficiary to whom such Plan benefit is
payable makes a valid claim for such Plan benefit, such forfeited Plan benefit shall be paid by the Plan
Administrator to the Participant or Beneficiary, without interest from the date it would have otherwise
been paid.
15.8
Classification of Retirement Payments
. A termination of employment at or after
attainment of age sixty-two (62) shall be considered as retirement, and payments from the Plan
subsequent to termination of employment at or after age sixty-two (62) shall be considered as
retirement payments.
IN WITNESS WHEREOF, the Company adopts this Plan as of the Effective Date written above.
CAL-MAINE FOODS, INC.:
By:
Title:
Printed Name: