Exhibit 10.1
CAL-MAINE FOODS, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
RECITALS
This Supplemental Executive Retirement 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 purpose of the Plan is to provide Participants, who are largely responsible for the
Company’s success, the opportunity to receive supplemental executive retirement benefits, thereby increasing the
incentive of such key employees to remain in the employ of the Company.
The Plan is an unfunded nonqualified deferred compensation 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”) by operation of Sections 201(2), 301(a)(3) and 401(a)(1) thereof. The Plan will be
administered, operated and construed in accordance with this intention.
The Plan is intended to comply in form and operation with all applicable law, including, to the extent
applicable, the requirements of U.S. Internal Revenue Code Section 409A (“Section 409A”) and will be administered,
operated and construed in accordance with this intention.
Accordingly, the Plan is adopted, effective as of March 1, 2023.
ARTICLE 1
DEFINITIONS
This Article provides definitions of terms used throughout this Plan, and whenever used herein in a
capitalized form, except as otherwise expressly provided, the terms shall be deemed to have the following meanings:
1.1
“Affiliate”
organization or entity, other than the Company, that is a member of a controlled group of corporations in which the
Company is a member, as defined in U.S. Internal Revenue Code Section 414(b) and all other trades or businesses
(whether or not incorporated) under common control of or with the Company, as defined in U.S. Internal Revenue
Code Section 414(c).
1.2
“Beneficiary” or “Beneficiaries”
by a Participant in accordance with the Plan to receive Plan benefits in the event of the death of the Participant.
1.3
“Beneficiary Designation Form”
Administrator that a Participant completes, signs, and returns to the Plan Administrator to designate one or more
Beneficiaries.
1.4 “Cause” shall mean conduct by a Participant reasonably and in good faith 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 materially harm the Company and are undertaken or omitted knowingly or are criminal or fraudulent
or involve material dishonesty or moral turpitude; (c) conviction of, or entry by Participant of, a guilty or no contest
plea to any felony or any other crime involving moral turpitude; or (d) material breach of fiduciary duty to the
Company.
1.5
“Change in Control”
in 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.
1.6
“Claimant”
benefit under this Plan or being denied a benefit to which he or she is entitled hereunder.
1.7
“Code”
authoritative guidance issued thereunder, as amended from time to time.
1.8
“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.
1.9
“Disability”
or “Disabled”
been deemed totally disabled by the Social Security Administration or has been determined to be disabled in
accordance with a long-term disability insurance program of the Company, provided that the program covers the
Participant and the definition of disability applied under such program complies with Code Section 409A.
Upon the
request of the Plan Administrator, the Participant must submit proof to the Plan Administrator of the Social Security
Administration’s or disability insurance provider’s determination.
1.10
“Effective Date”
1.11
“Eligibility Date”
Participation Agreement at which an Eligible Employee shall become eligible to participate in the Plan.
1.12
shall mean for any calendar year (or applicable portion of a calendar year), an
Employee who is determined by the Company, or its designee, to be eligible to participate in the Plan, in accordance
with Section 2.1.
1.13
“Employee”
common law employee of the Company.
1.14
“ERISA”
from time to time, and the regulations and guidance promulgated thereunder.
1.15
“Participant”
participate in this Plan and who completes the requirements of participation in accordance with the provisions of
Article 2
1.16
“Participation Agreement”
Company in which the Eligible Employee agrees to participate in the Plan.
1.17
“Plan”
agreement, Participation Agreements, and any other forms required by the Plan Administrator or Code Section 409A,
as may be amended from time to time. For purposes of applying Code Section 409A requirements, the benefit of each
Participant under this Plan is a non-account balance plan under Treasury Regulation §1.409A -1(c)(2)(i)(C).
1.18
“Plan Administrator”
shall mean the Company or such committee or person as the Company shall
appoint to act in accordance with Article 5. No Participant who is a Plan Administrator shall participate in an action
on a matter which applies solely to that person.
1.19
“Retirement Age
” shall mean age sixty-five (65), unless otherwise described in a Participant’s
Participation Agreement.
1.20
“Retirement Benefit”
otherwise described in a Participant’s Participation Agreement.
1.21
“Section 409A”
guidance issued thereunder.
1.22
“Separation from Service”
or “Separates from Service”
relationship with the Company that constitutes a separation from service within the meaning of Section 409A and
under Treasury Regulation §1.409A-1(h), treating as a Separation from Service an anticipated permanent reduction
in the level of bona fide services to be performed by the Participant for the Company to twenty percent (20%) or less
of the average level of bona fide services performed by the Participant for the Company over the immediately
preceding thirty-six (36) month period (or the full period during which the Participant performed services for the
Company if that is less than thirty-six (36) months).
1.23
“Treasury Regulation” or “Treasury Regulations”
the Internal Revenue Service for the U.S. Department of the Treasury, as they may be amended from time to time.
1.24
“Year of Plan Participation”
employed by the Company on a full-time basis, inclusive of approved leaves of absence, beginning on a Participant’s
Eligibility Date.
ARTICLE 2
SELECTION, ENROLLMENT, ELIGIBILITY
2.1
Selection.
compensated employees of the Company, as determined by the Company in its sole and absolute discretion.
2.2
Enrollment Requirements.
complete, execute, and return to the Plan Administrator a Participation Agreement and Beneficiary Designation Form
within the time specified by the Plan Administrator. In addition, the Plan Administrator shall establish such other
enrollment requirements as it determines necessary or advisable.
2.3
Re-employment.
individual to resume participation hereunder. Such individual shall not become a Participant until the individual is
again designated as an Eligible Employee as defined under the terms of the Plan. If a Participant who has experienced
a Separation from Service is receiving installment distributions under the terms of this Plan and is re-employed by
the Company, distributions due to the Participant shall not be suspended.
2.4
Termination of Participation.
no longer qualifies as a member of a select group of management or highly compensated employees, as membership
in such group is determined in accordance with Section 201(2), 301(a)(3) and 401(a)(1) of ERISA, the Plan
Administrator shall have the right, in its sole discretion, to cease further benefit accruals hereunder on behalf of the
Participant.
ARTICLE 3
VESTING AND DISTRIBUTION OF BENEFITS
3.1
Vesting.
becomes vested in the Retirement Benefit based on the following schedule:
Complete Years of Plan Participation
Percent Vested
Less than 1
0%
1 but less than 2
20%
2 but less than 3
40%
3 but less than 4
60%
4 but less than 5
80%
5 or more
100%
3.2
Acceleration of Vesting.
one hundred percent (100%) vested in the Retirement Benefit upon the earliest of the following events to occur while
employed by the Company: (a) Disability, (b) a Change in Control, or (c) attainment of Retirement Age.
3.3
Payments in General.
Beneficiary) shall be entitled to a benefit as of the earliest payment event to occur under Article 3. All payments made
under the Plan shall be made in cash from the Company’s general assets.
3.4
Separation from Service.
(a)
Prior to Retirement Age.
In the event a Participant Separates from Service (other than for
Cause or death) prior to Retirement Age, the Participant shall be paid the vested percentage of the Retirement
Benefit, calculated as of the date of Separation from Service, over ten (10) years in equal, annual installments.
(For example: vested percentage * $500,000 / 10.) The first installment shall be paid on the first day of the
sixth month following Retirement Age, with subsequent installments paid thereafter on the anniversary of
the first installment.
(b)
On or After Retirement Age.
for Cause or death) on or after Retirement Age, the Participant shall be paid the Retirement Benefit over ten
(10) years in equal, annual installments. (For example: $500,000 / 10 = $50,000 per year.) The first
installment shall be paid on the first day of the sixth month following the date of Separation from Service,
with subsequent installments paid thereafter on the anniversary of the first installment.
3.5
Disability.
Participant shall be paid the Retirement Benefit over ten (10) years in equal, annual installments. The first installment
shall be paid on the first day of the second month following the date of Disability, with subsequent installments paid
thereafter on the anniversary of the first installment.
3.6
Change in Control.
In the event of the Company’s Change in Control while a Participant is
employed by the Company, the Participant shall be paid the Retirement Benefit over ten (10) years in equal, annual
installments. The first installment shall be paid on the first day of the second month following the date of the Change
in Control, with subsequent installments paid thereafter on the anniversary of the first installment.
3.7
Death.
(a)
While Employed.
In the event of a Participant’s death while employed by the Company, no
benefit is due from this Plan. It is the intent of the Company to pay a pre-retirement death benefit to the
Participant’s Beneficiary pursuant to a separate endorsement “split dollar” life insurance arrangement.
(b)
During or Before Installments.
If a Participant dies after installments have commenced but
prior to receiving all installments owed under the Plan, or if the Participant dies after becoming entitled to a
benefit but dies prior to the commencement of installments, the Company shall continue to pay any remaining
installments to the Participant’s Beneficiary as the installments would have otherwise been paid to the
Participant.
3.8
Forfeitures.
Notwithstanding anything in the Plan to the contrary, if a Participant is terminated for
Cause, the Participant shall not be entitled to any benefits under the terms of this Plan and his or her participation in
this Plan shall be null and void. Additionally, a Participant shall forfeit any unvested amounts at the time of his or
her Separation from Service.
3.9
Subsequent Deferral Elections.
If approved by the Company, a Participant may delay the time of a
payment or change the form of a payment as expressly provided under this Section 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:
(a)
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;
(b)
If the Subsequent Deferral Election relates to a payment based on Separation from Service,
Change in Control, 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;
(c)
If the Subsequent Deferral Election relates to a payment at a specified time, the Subsequent
Deferral Election must be made not less than twelve (12) months before the date the first amount was
scheduled to be paid.
For purposes of applying this Section 3.9, installment payments shall be treated as a “single payment.” Any
election made pursuant to this Section shall be made on such election forms or 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.
3.10
Permissible Payment
Accelerations.
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).
3.11
Specified Employee of a Public Company.
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.
3.12
Unsecured General Creditor Status of Participant.
(a) Payment to any Participant or Beneficiary hereunder shall be made from assets which shall
continue, for all purposes, to be part of the legally available assets of the Company and no person shall have
any interest in any such asset by virtue of any provision of this Plan. The Company’s obligation hereunder
shall be an unfunded and unsecured promise to pay money in the future. To the extent that any person
acquires a right to receive payments from the Company under the provisions hereof, such right shall be no
greater than the right of any unsecured general creditor of the Company and no such person shall have or
acquire any legal or equitable right, interest, or claim in or to any property or assets of the Company.
(b) 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 primary owner and beneficiary of any such insurance policy
or property and shall possess and may exercise all incidents of ownership therein. 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.
(c) In the event that the Company purchases an insurance policy or policies on the life of a
Participant as provided for above, then all of such policies shall be subject to the claims of the creditors of
the Company.
(d) If the Company chooses to obtain insurance on the life of a Participant in connection with
its obligations under this Plan, the Participant shall take such physical examinations and truthfully and
completely supply such information as may be required by the Company or the insurance company
designated by the Company.
ARTICLE 4
BENEFICIARY DESIGNATION
4.1
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 Beneficiary Designation Form. Each
designation will revoke all prior designations by the same Participant, shall be in the form prescribed by the
Plan Administrator, and shall be effective only when filed with the Plan Administrator 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
Participant’s then living descendants, if any,
per stirpes
, and if there are no living descendants, to the
Participant’s estate. 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.
(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 Beneficiary
Designation Form with the Plan Administrator.
(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.
4.2
Information to be furnished by Participants and Beneficiaries; Inability to Locate Participants
or Beneficiaries.
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.
4.3
Facility of Payment.
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 5
PLAN ADMINISTRATION
5.1
Plan
Administrator Duties.
operation, and administration of the Plan. When making a determination or calculation, the Plan Administrator shall
be entitled to rely on information furnished by the Company, Participant, or Beneficiary. No provision of this Plan
shall be construed as imposing on the Plan Administrator any fiduciary duty under ERISA or other law, or any duty
similar to any fiduciary duty under ERISA or other law.
5.2
Plan Administrator Authority.
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 the Participant and his or her 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;
(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 the Participant, 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 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.
5.3
Binding Effect of Decision.
question arising out of or in connection with the administration, interpretation, and application of this Plan and the
rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any
interest in this Plan.
5.4
Compensation and Expenses.
services rendered hereunder. The Plan Administrator is authorized at the expense of the Company to employ such
legal counsel and/or Plan recordkeeper as it may deem advisable to assist in the performance of its duties hereunder.
Expense and fees in connection with the administration of this Plan shall be paid by the Company.
5.5
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 Participant is 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, the 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.
ARTICLE 6
PLAN AMENDMENT
6.1
Right to Amend.
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.
6.2
Amendments Required By Law.
amended by the Company at any time, retroactively if required, if found necessary, in the opinion of the Company,
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). No such amendment shall be considered
prejudicial to any interest of a Participant or a Beneficiary hereunder.
ARTICLE 7
PLAN TERMINATION
7.1
Although the Company anticipates that it will
continue the Plan for an indefinite period of time, there is no guarantee it will do so. The Company reserves the right
to terminate or suspend the operation of the Plan for a fixed or indeterminate period of time, in its sole discretion. In
the event the Plan is suspended or terminated, a Participant shall be due a benefit to the extent the Participant is
vested, and such vested benefit shall be calculated as of the date this Plan is suspended or terminated. Except as
provided in Section 7.2, the suspension or termination of this Plan shall not cause a distribution of benefits. Rather,
after such suspension or termination, benefit distributions will be made at the earliest distribution event permitted
under Article 3.
7.2
Plan Termination and Liquidation under Section 409A.
in Section 7.1, 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 Company may distribute a benefit, calculated as of the date the Plan is terminated, to all
Participants subject to the terms below:
(a) Upon the Company’s termination of this and all other arrangements that would be aggregated
with this Plan, pursuant to Treasury Regulation §1.409A-1(c), if the 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 a 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 and all participants in 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 8
CLAIMS PROCEDURE
8.1
Claims Procedure.
This Article is based on Department of Labor Regulation §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)
The Claimant initiates a claim by submitting a written 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. If the claim relates to Disability benefits, then
the Plan Administrator shall designate a sub-committee to conduct the initial review of the claim (and
applicable references below to the Plan Administrator shall mean such sub-committee).
(b)
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. In the event that the claim for benefits pertains to
Disability, the Plan Administrator shall provide written response within forty-five (45) days, but can extend
this response period by an additional thirty (30) days, if necessary, due to circumstances beyond the Plan
Administrator’s control. 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)
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.
8.2
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 - Written Request.
To initiate the review, the Claimant, within sixty (60) days
after receiving the Plan Administrator’s notice of denial, must file with the Plan Administrator a written
request for review.
(b)
Review of a Disability Benefit Claim.
benefits, any review of a denied claim shall be made by members of the Plan Administrator other than the
original decision maker(s) and such person(s) shall not be a subordinate of the original decision maker(s).
(c)
Additional Submissions - Information Access.
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.
(d)
Considerations on Review.
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. Additional considerations shall be required in the case of a claim for Disability benefits. For
example, the claim will be reviewed without deference to the initial adverse benefits determination and, if
the initial adverse benefit determination was based in whole or in part on a medical judgment, the Plan
Administrator will consult with a health care professional with appropriate training and experience in the
field of medicine involving the medical judgment. The health care professional who is consulted on appeal
will not be the same individual who was consulted during the initial determination or the subordinate of such
individual. If the Plan Administrator obtained the advice of medical or vocational experts in making the initial
adverse benefits determination (regardless of whether the advice was relied upon), the Plan Administrator
will identify such experts.
(e)
Timing of Company Response.
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.
(f)
Notice of Decision.
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).
8.3
Calculation of Time Periods.
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.
8.4
Exhaustion of Remedies.
and exhaust his or her administrative remedies before taking any further action with respect to a claim for benefits.
8.5
Failure of Plan to Follow 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.
8.6
Arbitration.
of the Plan or the meaning and effect of the terms and conditions thereof, then the Claimant must submit the dispute
to an arbitrator for final arbitration. The arbitrator shall be selected by mutual agreement of the Company and the
Claimant. The arbitrator shall operate under any generally recognized set of arbitration rules. The parties hereto agree
that they and their heirs, personal representatives, successors and assigns shall be bound by the decision of such
arbitrator with respect to any controversy properly submitted to it for determination. Where a dispute arises as to the
Company’s discharge of a Participant for Cause, such dispute shall likewise be submitted to arbitration as above
described and the parties hereto agree to be bound by the decision thereunder.
ARTICLE 9
MISCELLANEOUS
9.1
Validity.
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.
9.2
Nonassignability.
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.
9.3
Not a Contract of Employment.
constitute a contract of employment between the Company and the 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.
9.4
Governing Law.
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).
9.5
Notice
.
Any notice or filing required or permitted under this Plan shall be sufficient if in writing and
hand delivered, or sent by registered or certified mail or overnight delivery service to the Company’s address. Such
notice shall be deemed given as of the date of delivery or, if delivery is made by mail, or overnight delivery service
as of the date shown on the postmark on the receipt for registration or certification. Any notice or filing required or
permitted to be given to a Participant under this Plan shall be sufficient if in writing and hand-delivered, or sent by
mail or overnight delivery service, to the last known address of Participant.
9.6
Coordination with Other Benefits.
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.
9.7
Income Tax Withholding.
deem necessary or appropriate for the withholding of any taxes which the Company is required by any law or
regulation of any governmental authority, whether federal, state, or local, to withhold in connection with any benefits
under the Plan, including, but not limited to, the withholding of appropriate sums from any amounts otherwise payable
to the Participant (or his or her Beneficiary). Each Participant, however, shall be responsible for the payment of all
individual tax liabilities relating to any such benefits.
9.8
Unclaimed Benefits.
Administrator is unable to locate the Participant or Beneficiary to whom such benefit is payable, 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 earnings, from the date it would have otherwise been paid.
The Company executes this Plan as of the date first written above.