FIRST AMENDMENT TO THE RUBY TUESDAY, INC.
DEFERRED COMPENSATION PLAN
(As Restated Effective July 1, 1997)
THIS FIRST AMENDMENT is made as of this 28th day of May, 1998, by RUBY
TUESDAY, INC. (the "Primary Sponsor"), a corporation organized and
existing under the laws of the State of Georgia.
W I T N E S S E T H:
WHEREAS, the Primary Sponsor maintains the Ruby Tuesday, Inc. Deferred
Compensation Plan (the "Plan"), which was established by indenture dated
December 18, 1989 and restated effective as of July 1, 1997.
WHEREAS, the Primary Sponsor desires to amend the Plan to increase
deferral opportunities for Plan participants and to make certain other
changes in the design of the Plan, as described herein.
NOW, THEREFORE, the Plan is hereby amended, effective June 15, 1998,
as follows:
1. By adding two new final sentences to Section 1.1(a) as follows:
"The Employee Deferred Account may consist of a Company Stock
Subaccount which shall hold shares of Company Stock and cash attributable
to the investment of Deferral Amounts (and any earnings thereon) in an
Investment Fund consisting primarily of Company Stock and an Other
Investment Subaccount which shall hold all other assets attributable to
the Employee Deferred Account. The Company Stock Subaccount and Other
Investment Subaccount for the Employee Deferred Account shall be
maintained separately from the subaccounts maintained for the Company
Matching Account."
2. By adding a new Section 1.3A as follows:
"1.3A `Annual Bonus' means an amount paid to an Employee as an
incentive-based payment as a component of his Annual Compensation, but
which is specifically classified as an annual bonus payment by the
Company."
3. By deleting Section 1.4 in its entirety and by substituting
therefor the following:
"1.4 `Annual Compensation' means `Annual Compensation,' as
that term is defined under the Salary Deferral Plan for purposes of
making contributions pursuant to a salary deferral election, as the same
may be amended from time to time, but without regard to the limitation
on compensation that may be recognized under Code Section 401(a)(17),
plus any Deferral Amounts credited to a Member during the Plan Year and
amounts which are contributed by the Company pursuant to a salary
reduction agreement and which are not includable in the gross income of
the Member under Code Sections 125, 402(e)(3), 402(h)(1)(B) or 403(b)."
4. By adding a new Section 1.26A as follows:
"1.26A `Trust' means the grantor trust maintained by the
Primary Sponsor as a source for the payment of benefit obligations under
the Plan."
5. By deleting Section 3.1 in its entirety and by substituting
therefor the following:
"3.1 (a) Each Plan Year, a Member who is an Eligible
Employee may elect to defer under the Plan a portion of the Annual
Compensation otherwise payable to him for the Plan Year, which amount
shall be at least two percent (2%) of Annual Compensation (exclusive of
any Annual Bonus) and shall be in increments of one percent (1%) of
Annual Compensation (exclusive of any Annual Bonus), but not in excess
of one hundred percent (100%) of Annual Compensation (exclusive of any
Annual Bonus), less all applicable withholdings.
(b) Each Plan Year, a Member who is an Eligible
Employee may elect to defer under the Plan a portion of any Annual Bonus
otherwise payable to him for the Plan Year, which amount shall be at
least two percent (2%) of any such Annual Bonus and shall be in
increments of one percent (1%) of any such Annual Bonus, but not in
excess of one hundred percent (100%) of any such Annual Bonus, less all
applicable withholdings."
6. By deleting Section 3.2 in its entirety and by substituting
therefor the following:
"3.2 All elections to defer Annual Compensation under Plan
Section 3.1 may only be made pursuant to an agreement between the Member
and the Plan Sponsor which shall be in such form and subject to such rules
and limitations as the Plan Administrator may prescribe and shall specify
the amount of the Annual Compensation of the Member that the Member
desires to defer. Once a Member has made an election for a Plan Year, the
Member may revoke or modify his election to reduce the rate of future
deferrals pursuant to normal administrative procedures as may be
established from time to time by the Plan Administrator. Once an election
has been revoked or modified, any subsequent election by the Member shall
be effective pursuant to normal administrative procedures as may be
established from time to time by the Plan Administrator. Notwithstanding
the foregoing, no election to defer Annual Bonus may be made after the
later of the last day of the performance period for which the Annual Bonus
is payable or the date on which the Annual Bonus is determined."
7. By deleting Section 4.3(c) in its entirety and by substituting
therefor the following:
"4.3(c) Subject to the other provisions of this Section and
such other rules as may be promulgated by the Plan Administrator from
time to time, a Member may select how his Employee Deferred Account is
to be invested among Investment Funds. If a Member selects an
Investment Fund consisting primarily of Company Stock for the investment
of future Deferral Amounts or any portion of his existing Employee
Deferred Account, the Member shall not be allowed at any later time to
reinvest those amounts among other Investment Funds. Notwithstanding
the foregoing, upon prior written notice to a Member, the Plan
Administrator may revise or give no effect to a Member's investment
selections. If no investment election has been properly or timely filed
with the Plan Administrator or if the Plan Administrator, upon prior
written notice to the Member, modifies the Member's election, the
Employee's Employee Deferred Account shall be credited with the net
income or net loss of the investment selected by the Plan Administrator.
Any selection of an investment by Reporting Persons shall be subject to
the further restrictions of Plan Section 4.3(d)."
8. By deleting from Section 5.1 the phrase "is an Employee and" from
the first sentence thereof.
9. By deleting the last sentence from Section 5.2 and by
substituting therefor the following:
"A payment under this Section shall be made in a lump sum (in
kind to the extent the Member's Employee Deferred Account is invested in
Company Stock) and shall be charged against the Member's Employee Deferred
Account as of the Valuation Date coinciding with or immediately preceding
the date of payment. Notwithstanding the foregoing, any shares of Company
Stock distributed to any Member who is or was a Reporting Person at any
time within six (6) months prior to the date that his Accrued Benefit is
paid shall be treated as restricted stock for a period of up to six months
from the distribution date as necessary to preserve available exemptions
under Section 16 of the Securities Exchange Act of 1934."
10. By deleting Section 7.2 in its entirety and by substituting
therefor the following:
"7.2 The form of payment of the Accrued Benefit of a Member
shall be selected by the Plan Administrator and shall be in either a lump
sum or annual or more frequent installments. The payment of a Member's
Employee Deferred Account shall be in kind in shares of Company Stock to
the extent that Account is invested in Company Stock and otherwise in cash
and the Member's Company Matching Account shall be paid in Company Stock;
except that on or after a Change of Control, payment of a Member's Accrued
Benefit shall be in cash. Notwithstanding the foregoing, any shares of
Company Stock distributed to any Member who is or was a Reporting Person
at any time within six (6) months prior to the date that his Accrued
Benefit is paid shall be treated as restricted stock for a period of up to
six months from the distribution date as necessary to preserve available
exemptions under Section 16 of the Securities Exchange Act of 1934."
Except as specifically amended hereby, the Plan shall remain in full
force and effect as prior to this First Amendment.
IN WITNESS WHEREOF, the Primary Sponsor has caused this First Amendment
to be executed as of the day and year first above written.
RUBY TUESDAY, INC.
By:
Title:
ATTEST:
By:
Title:
[CORPORATE SEAL]