Exhibit 10.2
HERSHEY FOODS CORPORATION
AMENDED AND RESTATED (1999)
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
1. PURPOSE OF PLAN. The purpose of the Amended and Restated (1999)
Supplemental Executive Retirement Plan (hereinafter called the "Plan") is to
obtain for Hershey Foods Corporation (hereinafter called the "Corporation") all
of the benefits which flow from maintaining a strong management team by
providing to executive and upper level management employees the means to
continue their attained standard of living during retirement and by offering
benefits that will assist in attracting executive and upper level management
employees of outstanding ability. The Plan is an amendment to and restatement
(as amended) of the Hershey Foods Corporation Amended and Restated Supplemental
Executive Retirement Plan, as amended from time to time which was in effect from
November 1, 1994 to June 8, 1999.
2. DEFINITIONS. The following words and phrases as used in the
Plan shall have the following meanings, unless a different meaning is plainly
required by the context:
a. "Cause" means the willful engaging by an employee of
the Corporation in illegal conduct or gross misconduct which is materially and
demonstrably injurious to the Corporation.
For purposes of this definition, no act or failure to act, on the part
of an employee of the Corporation, shall be considered "willful" unless it is
done, or omitted to be done, by the employee in bad faith and without reasonable
belief that the employee's action or omission was in the best interest of the
Corporation. Any act or failure to act, based upon prior approval given by the
Board or upon the instruction or with the approval of the Chief Executive
Officer or the employee's superior or based upon the advice of counsel for the
Corporation shall be conclusively presumed to be done, or omitted to be done, by
the employee in good faith and in the best interest of the Corporation.
b. "Committee" means the Compensation and Executive
Organization Committee of the Board of Directors of the Corporation (the
"Board").
c. "Deferred Retirement Date" means the first day of the
month following an employee's termination of employment with the Corporation
provided such termination occurs after his Normal Retirement Date.
d. "Disability" or "Disabled", for purposes of this Plan,
shall have the same meaning as provided in Section 1.16 of the Retirement Plan,
as such section may be amended from time to time.
e. "Early Retirement Date" means the first day of any month
following an employee's termination of employment with the Corporation which is
coincident with or following his fifty-fifth (55th) birthday and prior to his
Normal Retirement Date.
f. "Final Average Compensation" means the sum of (1) the
highest annual average of a Vested Participant's basic salary paid or accrued
over any thirty-six (36) consecutive month period during his last ten (10) years
of employment with the Corporation and (2) the highest annual average of his
annual awards under the Annual Incentive Program (hereinafter called the "AIP")
of the Corporation's Key Employee Incentive Plan ("KEIP") paid or accrued over
any five (5) consecutive calendar years during his last ten (10) years of
employment with the Corporation. If a Vested Participant dies, retires, or
suffers a Disability or if a Participant suffers a Disability during a calendar
year and only a partial AIP award is made for that year, for purposes of the
Plan, his AIP award for such year will be considered to equal the award actually
made divided by the fraction of such year that he was employed by the
Corporation prior to his death, retirement or Disability. If a Vested
Participant otherwise terminates employment with the Corporation during a
calendar year, his AIP award for that year for purposes of the Plan will be
considered to be zero (0), regardless of whether any AIP award is actually made
for that year.
g. "GATT Interest Rate" means, for purposes of this Plan, for
any specific month, the annual interest rate on 30-year Treasury securities as
specified by the Commissioner of the Internal Revenue Service in revenue
rulings, notices or other guidance, published in the Internal Revenue Service
Bulletin, decreased by the percentage applicable to such month as set forth on
Schedule I attached hereto.
h. "Lump Sum Interest Rate" means, as of any specific date:
(x) after January 1, 1998 and prior to January 1,
2000 the sum of one twelfth (1/12th) of each PBGC Interest Rate for the
twelve months preceding such date;
(y) after December 31, 1999 and prior to January 1,
2001, the sum of one-twelfth (1/12th) of each GATT Interest Rate for
November 1999 and each month thereafter to and including the second
month preceding the month during which such date occurs plus, if the
number of months for which a GATT Interest Rate is determined as
described is less than twelve, the sum of one-twelfth (1/12th) of each
PBGC Interest Rate for December 1999 and each preceding month in
reverse chronological order until the total number of months for which
a GATT Interest Rate and/or a PBGC Interest Rate has been determined
equals twelve; and
(z) after December 31, 2000, the sum of one twelfth
(1/12th) of each GATT Interest Rate for the twelve consecutive months
beginning with the thirteenth (13th) month preceding the month during
which such date occurs.
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i. "Normal Retirement Date" means, for the purposes of this
Plan, the first day of the month nearest an employee's sixty-fifth (65th)
birthday, except that if his birthday is equally near the first of two calendar
months, the first day of the month prior to his sixty-fifth (65th) birthday
shall be his Normal Retirement Date.
j. "PBGC Interest Rate" means, for any specific month, the
interest rate used by the Pension Benefit Guaranty Corporation for such month
for purposes of valuing immediate annuities for terminating single employer
plans with insufficient assets to pay guaranteed benefits.
k. "Participant" means, as of any specific date, an employee
of the Corporation who, as of such date, is a participant in the performance
share unit portion of the KEIP or who, as of such date, is not then but had been
a participant in the performance share unit portion of the KEIP for at least
five (5) of his last ten (10) years of employment with the Corporation.
l. "Retirement Plan" means the Corporation's Retirement Plan,
amended and restated effective January 1, 1989, as in effect from time to time
and any successor plan thereto.
m. "Vested Participant" means, as of any specific date, a
Participant who, as of such date, satisfies each eligibility requirement set
forth in the first sentence of Section 3 of the Plan.
n. "Years of Service", for purposes of this Plan, shall have
the same meaning as provided in Section 1.56 of the Retirement Plan, as such
section may be amended from time to time.
3. ELIGIBILITY. An employee of the Corporation will be eligible to
receive a benefit pursuant to Section 4 of the Plan if, at the time of his
termination of employment with the Corporation, such employee (i) is at least 55
years of age, (ii) has ten (10) Years of Service, and (iii) has participated in
the performance share unit portion of the KEIP for at least five (5) of his last
ten (10) years of employment with the Corporation. No employee of the
Corporation, regardless of whether he satisfies all the eligibility requirements
to be a Vested Participant, shall be entitled to receive any benefits under the
Plan if his employment with the Corporation is terminated for Cause.
Notwithstanding the above, an employee whose employment is terminated with the
Corporation prior to his Normal Retirement Date for reason of Disability will be
treated as provided for in Section 4.c.
4. RETIREMENT BENEFITS.
a. Normal Retirement Benefit. An employee who qualifies as a
Vested Participant on the date of his termination of employment with the
Corporation, and who retires (or whose employment is otherwise terminated, other
than for Cause) on or after his Normal Retirement Date shall be entitled under
the Plan to receive a normal retirement benefit which shall be an annual
benefit, payable in monthly installments, equal to:
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(1) the product of three and two-thirds
percent (3 2/3%) of his Final Average Compensation and his Years of Service not
in excess of fifteen (15) Years of Service;
reduced by:
(2) one hundred percent (100%) of the Vested
Participant's retirement benefit under the Retirement Plan and any
other tax-qualified defined benefit pension plan maintained by the
Corporation or any affiliate thereof or any defined benefit pension
plan maintained by any other entity, payable as a life annuity
commencing at his Normal Retirement Date or his Deferred Retirement
Date if he retires after his Normal Retirement Date, regardless of
whether such benefit payment is in that form or begins at that time;
and
(3) one hundred percent (100%) of the primary social
security benefit to which the Vested Participant would be entitled on
his Normal Retirement Date or his Deferred Retirement Date if he
retires after his Normal Retirement Date regardless of whether he
receives any portion of such primary Social Security benefit on such
date.
Payment of such benefit shall commence on his Normal Retirement Date if
he retires (or otherwise has his employment terminated, other than for Cause) on
such date and on his Deferred Retirement Date if he retires (or otherwise has
his employment terminated, other than for Cause) after his Normal Retirement
Date.
b. Early Retirement Benefit. An employee who qualifies as a
Vested Participant on the date of his termination of employment with the
Corporation, and who retires (or whose employment is otherwise terminated, other
than for Cause) on or after his Early Retirement Date and prior to his Normal
Retirement Date shall be entitled under the Plan to receive an early retirement
benefit which shall be an annual benefit payable in monthly installments, equal
to:
(1) the product of three and two-thirds percent (3 2/3%) of his Final Average
Compensation and his Years of Service not in excess of fifteen (15) Years of
Service;
reduced by:
(2) one hundred percent (100%) of his retirement
benefit under the Retirement Plan and any other tax-qualified defined
benefit pension plan maintained by the Corporation or any affiliate
thereof or any defined benefit pension plan maintained by any other
entity, payable as a life annuity commencing at his Early Retirement
Date or the first date thereafter on which such benefits would be
payable if they are not payable on his Early Retirement Date regardless
of whether such benefit payment is in that form or begins at that time;
and
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(3) one hundred percent (100%) of the primary Social
Security benefit to which the Vested Participant would be entitled on
his Early Retirement Date or the first date thereafter on which such
benefits would be payable if they are not payable on his Early
Retirement Date regardless of whether he receives any portion of such
primary Social Security benefit on such date; and
(4) the product of (a) the difference between (1) and
the sum of (2) and (3), (b) five-twelfths of a percent (5/12%), and (c)
the number of complete calendar months by which the Vested
Participant's date of termination of employment precedes his sixtieth
(60th) birthday.
Payment of such benefit shall commence on the first day of the month
coincident with the Vested Participant's retirement or other termination of
employment, other than for Cause.
c. Disability Retirement Benefit. If an employee who is an
active participant in the performance share unit portion of the KEIP suffers a
Disability prior to his Normal Retirement Date and while employed by the
Corporation, the period of his Disability will be recognized as Years of Service
and as years of participation in the performance share unit portion of the KEIP
under the Plan. If such Disability continues to his Normal Retirement Date, for
purposes of the Plan, he will retire on that date and will be entitled to a
normal retirement benefit calculated in accordance with Section 4.a. commencing
on that date. In calculating the benefit under Section 4.a., the Participant's
Final Average Compensation shall be equal to his annual base compensation
immediately prior to his Disability plus the average of his AIP earned during
the three (3) years immediately prior to the commencement of his Disability.
d. Pre-Retirement Death Benefit. If a Participant dies before
his employment by the Corporation terminates and qualifies as a Vested
Participant on his date of death, his designated beneficiary(ies), or his estate
if he has not designated any beneficiary or beneficiaries in accordance with
procedures established by the Committee, shall receive within ten (10) days of
the Vested Participant's death a death benefit equal to the lump sum present
value of one hundred percent (100%) of the retirement benefit that would have
been payable to the Vested Participant under Sections 4.a. or 4.b. (including
the spousal survivor benefit payable pursuant to Section 4.e. with respect to
any Vested Participant survived by a spouse) if he had retired on the date of
his death. The lump sum present value of the retirement benefit shall be
calculated using: (x) for each Vested Participant who was a Vested Participant
on January 1, 1998, (i) the 83 GAM mortality tables; and (ii) an interest rate
equal to the sum of one-twelfth (1/12th) of each PBGC Interest Rate for the
twelve (12) months immediately preceding the date of the Vested Participant's
death; and (y) for each Vested Participant who first became a Vested Participant
after January 1, 1998, (i) the prevailing commissioner's standard mortality
table (described in Section 807(d)(5)(A) of the Internal Revenue Code of 1986,
as amended from time to time) used to determine reserves for group annuity
contracts issued on the date of the Vested Participant's death (without regard
to any other subparagraph for such Section 807(d)(5)) that is prescribed by the
Commissioner of the Internal Revenue Service in revenue rulings, notices, or
other guidance published in the Internal Revenue
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Bulletin; and (ii) an interest rate equal to the Lump Sum Interest Rate as of
the date of the Vested Participant's death.
e. Post-Retirement Death Benefit. If a Vested Participant who
is receiving monthly retirement benefits under this Plan following his
termination of employment by the Corporation dies, his surviving spouse, if he
is survived by a spouse, shall be entitled to receive a death benefit which
shall be a monthly payment for the spouse's life, beginning on the first day of
the month following the Vested Participant's death, equal to:
(1) fifty percent (50%) of the monthly
retirement benefit to which the Vested Participant was entitled under the Plan
prior to his death;
reduced by:
(2) the monthly annuity value of any life insurance
provided by the Corporation or any affiliate thereof for retired
employees that is in excess of post-retirement group term life
insurance regularly provided by the Corporation or any affiliate
thereof.
5. ADMINISTRATION OF THE PLAN. The Committee is charged with the
administration of the Plan. It shall have full power and authority to construe
and interpret the Plan. Its decisions shall be final, conclusive and binding on
all parties. Subject to Section 10 of this Plan, the Committee shall also have
the power, in its sole discretion, at any time (i) to waive, in whole or in
part, application of any of the eligibility requirements of Section 3 or of the
benefit reduction factors in Sections 4.a. and 4.b. and (ii) to determine the
timing and form of payment of any benefit under the Plan, in the case of any
individual Participant, Vested Participant or other employee of the Corporation
who has participated in the performance share unit portion of the KEIP.
6. OPTIONAL FORMS OF PAYMENT. In lieu of the monthly retirement benefit
(including the spousal survivor benefit payable pursuant to Section 4.e. hereof)
payable pursuant to Section 4.a. or 4.b. hereof to a Vested Participant (and his
surviving spouse) who retires (or whose employment is terminated other than for
Cause) after August 2, 1994 (such benefit payable to a Vested Participant and/or
his surviving spouse is herein referred to for purposes of this Section 6 as the
"Applicable Retirement Benefit"), such Vested Participant may elect to receive
the following form of benefit payment:
A lump sum cash payment, payable to the Vested Participant within ten
(10) days after the Vested Participant's date of retirement (or the Vested
Participant's date of termination of employment other than for Cause), equal to
the actuarial present value of the Applicable Retirement Benefit, calculated
using: (x) for each Vested Participant who was a Vested Participant on January
1, 1998, (i) the 83 GAM mortality tables; and (ii) an interest rate equal to one
twelfth (1/12th) of each PBGC Interest Rate for the twelve months immediately
preceding the date of the Vested Participant's retirement (or the Vested
Participant's date of termination of employment other than for Cause),
calculated in accordance with the Corporation's practices for determining
retirement benefits; and (y) for each Vested Participant
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who first became a Vested Participant after January 1, 1998 (i) the prevailing
commissioner's standard mortality table (described in Section 807(d)(5)(A) of
the Internal Revenue Code of 1986, as amended from time to time) used to
determine reserves for group annuity contracts issued on the date of the Vested
Participant's retirement (or the Vested Participant's date of termination of
employment other than for Cause) (without regard to any other subparagraph for
such Section 807(d)(5)) that is prescribed by the Commissioner of the Internal
Revenue Service in revenue rulings, notices, or other guidance published in the
Internal Revenue Bulletin; and (ii) an interest rate equal to the Lump Sum
Interest Rate as of the date of the Vested Participant's retirement.
Prior to March 1, 1998, any such election must be made at least one hundred
(180) days prior to the date that the Applicable Retirement Benefit payments
would otherwise become payable. After February 28, 1998, any such election must
be made by those Participants designated by the Committee from time to time at
least two (2) years and by all other Participants at least one (1) year prior to
the date that the Applicable Retirement Benefit payments would otherwise become
payable.
7. PAYMENT UPON CHANGE IN CONTROL
a. Any former employee or the surviving spouse of an employee
or former employee who is receiving a benefit under Sections 4.a., 4.b., 4.d. or
4.e. hereof (or pursuant to the terms of any version of this Plan) at the time
of a Change in Control (collectively or individually, "SERP Recipient") shall
receive, in lieu of the future monthly retirement benefit (including the spousal
survivor benefit in the case of a benefit under Section 4.a. or 4.b.) to which
he is entitled (such future benefit payable to the SERP Recipient is herein
referred to for purposes of this Section 7.a as the "Future Retirement
Benefit"), a lump sum cash payment, payable to the SERP Recipient, as
applicable, within ten (10) days after a Change in Control (or such later date
that is forty-five (45) days after the notice required by the following
provisions of this Section 7.a. is provided to the applicable SERP Recipient),
equal to the actuarial present value of his Future Retirement Benefit,
calculated using: (i) the 83 GAM mortality tables; and (ii) an interest rate
equal to the PBGC Interest Rate as of the date of the Change of Control.
Notwithstanding the foregoing, the provisions of this Section
7.a. shall not apply with respect to a SERP Recipient unless such SERP Recipient
consents to the application of this Section 7.a. within thirty (30) days after
the date the SERP Recipient receives written notice of the terms of this Section
7.a., as provided for by the following sentence. The Corporation shall provide
each SERP Recipient, a written notice of the terms of this Section 7.a. and the
consent requirement contained herein not later than five (5) days after the
earliest of (x) the occurrence of a Potential Change in Control, (y) the date
that the Corporation provides notice to its stockholders that a vote on a
transaction which, if consummated, would constitute a Change in Control will be
submitted to the Corporation's stockholders for approval, or (z) the occurrence
of a Change of Control.
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b. For purposes of Sections 7 and 10, a "Change in
Control" means:
(1) Individuals who, on June 8, 1999, constitute the
Board (the "Incumbent Directors") cease for any reason to constitute at
least a majority of the Board, provided that any person becoming a
director subsequent to June 8, 1999, whose election or nomination for
election was approved by a vote of at least two-thirds of the Incumbent
Directors then on the Board (either by specific vote or by approval of
the proxy statement of the Corporation in which such person is named as
nominee for director, without written objection to such nomination)
shall be an Incumbent Director; PROVIDED, HOWEVER, that no individual
initially elected or nominated as a director of the Corporation as a
result of an actual or threatened election contest (as described in
Rule 14a-11 under the Exchange Act) ("Election Contest") or other
actual or threatened solicitation of proxies or consents by or on
behalf of any Person other than the Board ("Proxy Contest"), including
by reason of any agreement intended to avoid or settle any Election
Contest or Proxy Contest, shall be deemed an Incumbent Director; and
PROVIDED FURTHER, HOWEVER, that a director who has been approved by the
Hershey Trust while it beneficially owns more than 50% of the combined
voting power of the then outstanding voting securities of the
Corporation entitled to vote generally in the election of directors
(the "Outstanding Company Voting Power") shall be deemed to be an
Incumbent Director;
(2) The acquisition or holding by any Person of
beneficial ownership (within the meaning of Section 13(d) under the
Exchange Act and the rules and regulations promulgated thereunder) of
shares of the Common Stock and/or the Class B Common Stock of the
Corporation representing 25% or more of either (i) the total number of
then outstanding shares of both Common Stock and Class B Common Stock
of the Corporation (the "Outstanding Company Stock") or (ii) the
Outstanding Company Voting Power; provided that, at the time of such
acquisition or holding of beneficial ownership of any such shares, the
Hershey Trust does not beneficially own more than 50% of the
Outstanding Company Voting Power; and provided, further, that any such
acquisition or holding of beneficial ownership of shares of either
Common Stock or Class B Common Stock of the Corporation by any of the
following entities shall not by itself constitute such a Change in
Control hereunder: (i) the Hershey Trust; (ii) any trust established by
the Corporation or by any Subsidiary for the benefit of the Corporation
and/or its employees or those of a Subsidiary; (iii) any employee
benefit plan (or related trust) sponsored or maintained by the
Corporation or any Subsidiary; (iv) the Corporation or any Subsidiary
or (v) any underwriter temporarily holding securities pursuant to an
offering of such securities;
(3) The approval by the stockholders of the
Corporation of any merger, reorganization, recapitalization,
consolidation or other form of business combination (a "Business
Combination") if, following consummation of such Business Combination,
the Hershey Trust does not beneficially own more than 50%
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of the total voting power of all outstanding voting securities
eligible to elect directors of (x) the surviving entity or entities
(the "Surviving Corporation") or (y) if applicable, the ultimate
parent corporation that directly or indirectly has beneficial
ownership of more than 50% of the combined voting power of the then
outstanding voting securities eligible to elect directors of the
Surviving Corporation; or
(4) The approval by the stockholders of the
Corporation of (i) any sale or other disposition of all or
substantially all of the assets of the Corporation, other than to a
corporation (the "Acquiring Corporation") if, following consummation of
such sale or other disposition, the Hershey Trust beneficially owns
more than 50% of the total voting power of all outstanding voting
securities eligible to elect directors (x) of the Acquiring Corporation
or (y) if applicable, the ultimate parent corporation that directly or
indirectly has beneficial ownership of more than 50% of the combined
voting power of the then outstanding voting securities eligible to
elect directors of the Acquiring Corporation, or (ii) a liquidation or
dissolution of the Corporation.
c. For purposes of Sections 7 and 10, a "Potential
Change in Control" means:
(1) The Hershey Trust by action of any of the Board
of Directors of Hershey Trust Company; the Board of Managers of Milton
Hershey School; the Investment Committee of the Hershey Trust; and/or
any of the officers of Hershey Trust Company or Milton Hershey School
(acting with authority) undertakes consideration of any action the
taking of which would lead to a Change in Control as defined herein,
including, but not limited to consideration of (i) an offer made to the
Hershey Trust to purchase any number of its shares in the Corporation
such that if the Hershey Trust accepted such offer and sold such number
of shares in the Corporation the Hershey Trust might no longer have
more than 50% of the Outstanding Company Voting Power, (ii) an offering
by the Hershey Trust of any number of its shares in the Corporation for
sale such that if such sale were consummated the Hershey Trust might no
longer have more than 50% of the Outstanding Company Voting Power or
(iii) entering into any agreement or understanding with a person or
entity that would lead to a Change in Control; or
(2) the Board approves a transaction described in
subsection (2), (3) or (4) of the definition of a Change in Control
contained in Section 7.b.
d. For purposes of this Section 7: (i) "Hershey Trust" means
either or both of (a) the Hershey Trust Company, a Pennsylvania corporation, as
Trustee for the Milton Hershey School, or any successor to the Hershey Trust
Company as such trustee, and (b) the Milton Hershey School, a Pennsylvania
not-for-profit corporation; (ii) "Exchange Act" shall mean the Securities
Exchange Act of 1934 and the rules and regulations promulgated thereunder; (iii)
"Person" shall have the meaning given in Section 3(a)(9) of the Exchange Act, as
modified and used in Sections 13(d)(3) and 14(d) thereof; and (iv) "Subsidiary"
shall mean any corporation controlled by the Corporation, directly or
indirectly.
8. PAYMENT OF BENEFITS. Nothing contained in the Plan and no action
taken pursuant to the provisions of the Plan shall create or be construed to
create a trust of any kind, or a fiduciary relationship between the Corporation
and any Participant, Vested Participant, spouse of a Participant or Vested
Participant, or any other person. No person other than the
9
Corporation shall by virtue of the provisions of the Plan have any interest in
such assets. To the extent that any person acquires a right to receive payments
from the Corporation under the Plan, such right shall be no greater than the
right of any unsecured general creditor of the Corporation. The right of any
Vested Participant or any other person to the payment of benefits under the Plan
shall not be assigned, transferred, pledged or encumbered; such payments and the
right thereto are expressly declared to be non-assignable and nontransferable.
No payments hereunder shall be subject to the claim of the creditors of any
Vested Participant or of any other person entitled to payments hereunder. Any
payments required to be made pursuant to the Plan to a person who is under a
legal disability may be made by the Corporation to or for the benefit of such
person in such of the following ways as the Committee shall determine:
a. directly to such person.
b. to the legal representative of such person.
c. to a near relative of such person to be used for such
person's benefit.
d. directly in payment of expenses of support,
maintenance or education of such person.
The Corporation shall not be required to see to the
application by any third party of any payments made pursuant to the Plan.
9. EFFECTIVE DATE OF PLAN. This Amended and Restated (1999)
Supplemental Executive Retirement Plan shall be effective June 9, 1999 and
Vested Participants who become eligible to retire under the Plan on or after
that date shall be entitled to the benefits provided hereunder.
10. AMENDMENT, SUSPENSION OR TERMINATION OF THE PLAN. The Board of
Directors of the Corporation may, at any time, suspend or terminate the Plan.
The Board may also from time to time, amend the Plan in such respects as it may
deem advisable in order that benefits provided hereunder may conform to any
change in law or in other respects which the Board deems to be in the best
interest of the Corporation. No such suspension, termination or amendment of the
Plan shall adversely affect any right of any person who is a Vested Participant
at the time of such suspension, termination or amendment or his
beneficiary(ies), estate or surviving spouse, as applicable, to receive benefits
under the Plan in accordance with its provisions in effect immediately prior to
such suspension, termination or amendment without the consent of such Vested
Participant, beneficiary(ies), estate or surviving spouse. Any benefits payable
under the terms of the Plan at the time of any suspension, termination or
amendment of the Plan shall remain in effect according to their original terms,
or such alternate terms as may be in the best interests of both parties and
agreed to by the Vested Participant or his beneficiaries, estate or surviving
spouse, as applicable. Notwithstanding the foregoing, (a) the Plan may not be
terminated or amended in any manner that is adverse to the interests of
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a Participant or the surviving spouse of a Participant without the consent of
the Participant or surviving spouse, as applicable, either: (i) after a
Potential Change in Control occurs and for one (1) year following the cessation
of the Potential Change in Control, or (ii) for a two year period beginning on
the date of a Change in Control (the "Coverage Period"); and (b) no termination
of this Plan or amendment hereof in a manner adverse to the interests of any
Participant (without the consent of the Participant or surviving spouse) shall
be effective if such termination or amendment occurs (i) at the request of a
third party who has taken steps reasonably calculated to effect a Change of
Control, or (ii) in connection with or in anticipation of a Change of Control.
After the Coverage Period, the Plan may not be amended or terminated in any
manner that would adversely affect the entitlement of a Participant or his
surviving spouse (without the consent of the Participant or surviving spouse) to
benefits that have accrued hereunder. For purposes of the immediately preceding
two sentences of this Section 10, whether an employee of the Corporation
qualifies as a Participant shall be determined at the time (a) the Coverage
Period commences and any time thereafter or (b) his employment is terminated or
the Plan is amended (i) at the request of a third party who has taken steps
reasonably calculated to effect a Change of Control, or (ii) in connection with
or in anticipation of a Change of Control.
IN WITNESS WHEREOF, Hershey Foods Corporation has caused this Hershey
Foods Corporation Amended and Restated (1999) Supplemental Executive Retirement
Plan to be executed as of this 9th day of June, 1999.
HERSHEY FOODS CORPORATION
By:________________________________
Robert M. Reese
Senior Vice President,
General Counsel
and Secretary
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SCHEDULE I
TO
AMENDED AND RESTATED (1999)
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
November 1999 1.850%
December 1999 1.811%
January 2000 1.773%
February 2000 1.734%
March 2000 1.696%
April 2000 1.657%
May 2000 1.619%
June 2000 1.580%
July 2000 1.542%
August 2000 1.503%
September 2000 1.465%
October 2000 1.426%
November 2000 1.388%
December 2000 1.349%
January 2001 1.310%
February 2001 1.272%
March 2001 1.233%
April 2001 1.195%
May 2001 1.156%
June 2001 1.118%
July 2001 1.079%
August 2001 1.041%
September 2001 1.002%
October 2001 0.964%
November 2001 0.925%
December 2001 0.887%
January 2002 0.848%
February 2002 0.809%
March 2002 0.771%
April 2002 0.732%
May 2002 0.694%
June 2002 0.655%
July 2002 0.617%
August 2002 0.578%
September 2002 0.540%
October 2002 0.501%
November 2002 0.463%
December 2002 0.424%
January 2003 0.385%
February 2003 0.347%
March 2003 0.308%
April 2003 0.270%
May 2003 0.231%
June 2003 0.193%
July 2003 0.154%
August 2003 0.116%
September 2003 0.077%
October 2003 0.039%
November 2003 and each
succeeding month 0.000%