SEABOARD CORPORATION
EXECUTIVE RETIREMENT PLAN
2005 AMENDMENT AND RESTATEMENT
SEABOARD CORPORATION
EXECUTIVE RETIREMENT PLAN
2005 AMENDMENT AND RESTATEMENT
TABLE OF CONTENTS
ARTICLE I. PURPOSE AND BACKGROUND 1
ARTICLE II. DEFINITIONS 1
2.1. Accrued Benefit 1
2.2. Actuarial Equivalent 1
2.3. Actuarial Value 2
2.4. Board 2
2.5. Change of Control 2
2.6. Code 3
2.7. Committee 3
2.8. Company 3
2.9. Covered Compensation 3
2.10. Disability Retirement Date 3
2.11. Early Retirement Date 3
2.12. Earnings 3
2.13. Effective Date 4
2.14. Executive Deferred Compensation Plan 4
2.15. Eligible Spouse 4
2.16. Final Average Earnings 4
2.17. Inactive Participant 4
2.18. Interest Rate 4
2.19. Investment Option Plan 4
2.20. Key Participant 4
2.21. Nonqualified Deferred Compensation Plan 4
2.22. Normal Retirement Date 4
2.23. Participant 5
2.24. Participation Date 5
2.25. Pension Plan 5
2.26. Plan 5
2.27. Plan Administrator 5
2.28. Plan Year or Year 5
2.29. Related Company 5
2.30. Separation Date 5
2.31. Separation from Service 5
2.32. Years of Service 5
2.33. Years of Accrual Service 5
ARTICLE III. PARTICIPATION 5
3.1. Participation Date 5
3.2. Cessation of Participation 6
3.3. Inactive Participants 6
3.4. Participation not Contract of Employment 6
ARTICLE IV. RETIREMENT BENEFITS 6
4.1. Determination of Accrued Benefit 6
4.2. Early Retirement Accrued Benefit 8
ARTICLE V. PAYMENT OF BENEFITS 8
5.1. Fully Vested Benefits 8
5.2. Forfeitures 8
5.3. Commencement of Payment 8
5.4. Method of Payment 9
5.5. Participant Elections of Method of Payment 11
5.6. Participant Elections of Payment Date 12
5.7. Death Benefit 12
5.8. Determination of Beneficiary 12
ARTICLE VI. FUNDING 13
6.1. Unfunded Plan 13
ARTICLE VII. WITHHOLDING OF TAXES 13
7.1. Tax Withholding 13
ARTICLE VIII. PLAN ADMINISTRATOR 13
8.1. Membership and Authority 13
8.2. Delegation 14
8.3. Information to be Furnished 14
8.4. Plan Administrator's Decision Final 14
8.5. Remuneration and Expenses 14
8.6. Indemnification of Committee Member 14
8.7. Resignation or Removal of Committee Member 14
8.8. Interested Committee Member 15
ARTICLE IX. CLAIMS PROCEDURE 15
9.1. Claim 15
9.2. Denial of Claim 15
9.3. Review of Claim 15
9.4. Final Decision 15
ARTICLE X. AMENDMENTS OR TERMINATION OF THE PLAN 15
10.1. Board 15
10.2. Deemed Amendment 16
ARTICLE XI. MISCELLANEOUS 16
11.1. Captions 16
11.2. Company Action 16
11.3. Company Records 16
11.4. Evidence 16
11.5. Gender and Number 16
11.6. Governing Law 16
11.7. Nonassignability 16
11.8. Participant Cooperation 17
11.9. Successors 17
11.10. Unsecured General Creditor 17
11.11. Validity 17
11.12. Waiver of Notice 17
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ADDENDUM A - PARTICIPANTS 17
ADDENDUM B - PRIOR CASH PAYMENTS 19
ADDENDUM C - PRE-1997 FROZEN BENEFITS 21
ADDENDUM D - PARTICIPANTS WITH INDIVIDUAL SERP AGREEMENTS 22
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SEABOARD CORPORATION
EXECUTIVE RETIREMENT PLAN
2005 AMENDMENT AND RESTATEMENT
ARTICLE I.
PURPOSE AND BACKGROUND
Seaboard Corporation (the "Company") adopted the Seaboard
Corporation Executive Retirement Plan effective January 1, 1994,
which plan was restated and amended in its entirety effective
January 1, 1997, and was again amended and restated in its
entirety effective November 5, 2004. The Company now hereby
again amends and restates said plan in its entirety, effective
January 1, 2005 (the "Effective Date"), and the name of said
amended and restated plan shall be the "Seaboard Corporation
Executive Retirement Plan 2005 Amendment and Restatement" (the
"Plan").
The purpose of the Plan is to aid in retaining and
attracting certain key employees of Seaboard Corporation and
participating affiliated companies by providing to them
supplemental retirement income. The Plan is intended to be an
arrangement that is unfunded and maintained primarily for the
purpose of providing supplemental retirement benefits to a select
group of management or highly compensated employees within the
meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of the
Employee Retirement Income Security Act of 1974, as amended, and
the Plan shall be interpreted and administered in a manner
consistent with this intent.
The purpose of this amendment and restatement of the Plan is
to coordinate the Plan provisions with other deferred
compensation arrangements sponsored by the Company. The purpose
of this amendment and restatement of the Plan also is to satisfy
the requirements of Section 409A of the Internal Revenue Code of
1986, as amended, and the Plan shall be interpreted and
administered in a manner consistent with this intent. The
provisions of this amended and restated Plan shall apply to all
Participants in the Plan who separate from service with the
Company on or after the Effective Date (except as otherwise
provided on Addendum A attached hereto). The benefits under the
Plan of all Participants who separate from service with the
Company prior to the Effective Date will be determined based upon
the provisions of the Plan in effect at the time of such
Separation from Service (except as otherwise provided on Addendum
A attached hereto).
ARTICLE II.
DEFINITIONS
For the purpose of this Plan, the following words and
phrases shall have the meaning indicated, unless the context
clearly indicates otherwise:
2.1. Accrued Benefit means a Participant's benefit
determined as of a particular time under the provisions of this
Plan.
2.2. Actuarial Equivalent means a form of benefit differing
in time, period or manner of payment from a specified payment
form, but having equivalent value when computed using an
interest rate of 8% per year compounded annually and the
1983 Group Annuity Mortality Table. It is the intent that at
all times reasonable actuarial assumptions be used to determine
an actuarial equivalent form of benefit hereunder. Accordingly,
the Committee is authorized to amend the Plan to change the
actuarial assumptions under this Section 2.2 at any time deemed
advisable by the Committee based upon the advice of the actuary
providing actuarial services to the Plan.
2.3. Actuarial Value means the lump sum equivalent value of
a Participant's Accrued Benefit payable at his Normal Retirement
Date and determined by using (a) the annual interest rate on 30-
year Treasury securities as specified by the Commissioner for
the month of November preceding the Plan Year in which payment
to the Participant is made, and (b) the applicable mortality
table used for purposes of satisfying the requirements of Code
Section 417(e).
2.4. Board means the Board of Directors of Seaboard
Corporation.
2.5. Change of Control means an event or transaction which
results in one or more of the following and which constitutes a
change in the ownership or effective control of the Company,
or in the ownership of a substantial portion of the assets
of the Company, within the meaning of Code Section 409A:
(a) The acquisition by any unrelated person or entity of
more than fifty percent (50%) of either the outstanding
shares of common stock or the combined voting power of
the Company's then outstanding voting securities
entitled to vote generally in the election of directors;
(b) The sale to an unrelated person or entity of Company
assets that have a total gross fair market value of
more than eighty-five percent (85%) of the total gross
fair market value of all of the assets of the Company
immediately prior to such sale;
(c) The approval by the shareholders of the Company of a
reorganization, merger or consolidation with respect to
which persons who were the stockholders of the Company
immediately prior to such reorganization, merger or
consolidation do not, immediately thereafter, own more
than fifty percent (50%) of the combined voting power
entitled to vote generally in the election of the
directors of the reorganized, merged or consolidated
entity's then outstanding voting securities; or
(d) The acquisition by any person or entity (other than by
any descendant of Otto Bresky, Senior or any trust
established primarily for the benefit of any descendant
of Otto Bresky, Senior or any other related person or
entity) of more than fifty percent (50%) of either the
membership interests or the combined voting power of
Seaboard Flour, LLC.
For purposes of determining whether there has been a Change of
Control under this Section 2.5, the attribution of ownership
rules under Code Section 318(a) shall apply. Also for purposes
of determining whether there has been a Change of Control,
"Company" means only Seaboard Corporation and any successors to
the business of Seaboard Corporation.
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2.6. Code means the Internal Revenue Code of 1986, as
amended from time to time. References to any Section of the
Internal Revenue Code shall include any successor provision
thereto.
2.7. Committee means the committee, if any, appointed to
administer this Plan pursuant to Article VIII.
2.8. Company means Seaboard Corporation, a Delaware
corporation, and any of its subsidiaries or affiliates that are
participating in this Plan, and any successors to the business
of Seaboard Corporation and such participating subsidiaries or
affiliates.
2.9. Covered Compensation has the same meaning as such term
has in the Pension Plan.
2.10. Disability Retirement Date means the date the
Participant has a Separation from Service because of disability,
irrespective of the Participant's age. A Participant will be
considered disabled if the Participant is disabled for purposes
of the Pension Plan.
2.11. Early Retirement Date means the date as of which a
Participant has both (a) completed ten (10) Years of Service and
(b) been a Participant for five (5) Years.
2.12. Earnings with respect to any particular Year means:
(a) the total salary and bonus received by the Participant from
the Company for the Participant's services during such Year; (b)
the amount of any elective contributions made by the
Participant in such Year pursuant to a plan maintained by the
Company where such amount is not includable in gross income in
such Year under the provisions of Code Sections 125, 401(k) or
132(f); (c) the amount of the compensation reduction of a
Participant effective for such Year under the Investment
Option Plan; (d) the amount of the Participant's compensation
otherwise payable to the Participant in such Year that is instead
deferred and credited to an account for the benefit of the
Participant with respect to such Year under the Executive
Deferred Compensation Plan; (e) the amount of any Company
discretionary contribution attributable to such Year
that is credited to an account for the benefit of the Participant
under the Executive Deferred Compensation Plan; and (f) the
amount credited to an account for the benefit of the Participant
pursuant to a deferral election of the Participant applicable for
such Year under the Nonqualified Deferred Compensation Plan.
Earnings with respect to any particular Year shall not
include: (a) reimbursements or other expense allowances, fringe
benefits (cash and noncash), moving expenses and welfare
benefits, whether or not taxable to the Participant; (b) any
benefits of the Participant accrued or paid under this Plan
whether before or after the Effective Date; (c) any amount
received upon the exercise of an option granted to the
Participant under the Investment Option Plan; (d) any amounts
credited to an account for the benefit of the Participant, and
any amounts paid with respect to any such account, under the
Executive Deferred Compensation Plan, except the amounts
described in clauses (d) and (e) of the preceding paragraph of
this Section 2.12; (e) any amounts credited to an account for the
benefit of the Participant, and any amounts paid with respect to
any such account, under the Nonqualified Deferred Compensation
Plan, except the amount described in clause (f) of the preceding
paragraph of this Section 2.12; (f) any amounts accrued or paid
with respect to the Participant under any individual retirement
arrangement
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identified on Addendum D; and (g) any benefits of the Participant
accrued or paid under any retirement plan qualified under Code
Section 401(a), except any elective contributions described in
clause (b) of the preceding paragraph of this Section 2.12.
2.13. Effective Date means the effective date of this Plan,
which is January 1, 2005.
2.14. Executive Deferred Compensation Plan means the
Seaboard Executive Deferred Compensation Plan, adopted by
Seaboard Corporation effective January 1, 1999, as most
recently amended and restated effective January 1, 2005, and as
hereafter amended from time to time.
2.15. Eligible Spouse means the spouse of a Participant to
whom the Participant was married on the date payment of the
Participant's vested Accrued Benefit commences, or, if
earlier, on the date of the Participant's death. The length of
the marriage prior to either of such dates shall not be taken
into consideration.
2.16. Final Average Earnings has the same meaning as such
term has in the Pension Plan at the applicable date (which is the
Participant's Separation Date for purposes of determining the
Participant's vested Accrued Benefit upon Separation from
Service), except that Final Average Earnings will be determined
by using the definition of Earnings set forth herein.
2.17. Inactive Participant means a Participant who is no
longer accruing a benefit under the Plan because either (a) the
President or a Senior Vice President of the Company has
determined in his sole discretion that the Participant shall no
longer accrue a benefit under the Plan because the Participant
no longer satisfies criteria for participation as determined by
the President or a Senior Vice President in his sole discretion,
or (b) the Participant has had a Separation from Service.
2.18. Interest Rate means the Moody's AAA Seasoned Bond
Index average rate as of the first business day of the Plan Year
containing the period for which the interest amount payable
hereunder is to be determined.
2.19. Investment Option Plan means the Seaboard Corporation
Investment Option Plan, adopted by Seaboard Corporation effective
December 1, 2000, as amended from time to time. The Investment
Option Plan is now frozen.
2.20. Key Participant means a Participant who is a specified
employee within the meaning of Code Section 409A (generally a
specified employee for this purpose is a key employee as defined
in Code Section 416(i) but without regard to Code Section 416(i)
(5)).
2.21. Nonqualified Deferred Compensation Plan means the
Seaboard Corporation Nonqualified Deferred Compensation Plan,
adopted by Seaboard Corporation effective September 1, 2005,
and as hereafter amended from time to time.
2.22. Normal Retirement Date means the first day of the
calendar month coinciding with or next following the date the
Participant attains age sixty-two (62).
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2.23. Participant means any individual who is designated as
a Participant in the Plan as provided in Section 3.1 and who has
not ceased to be a Participant under Section 3.2.
2.24. Participation Date means the date an employee becomes
a Participant as provided in Section 3.1.
2.25. Pension Plan means the Seaboard Corporation Pension
Plan, a retirement plan qualified under Code Section 401(a) and
sponsored by Seaboard Corporation, as amended from time to time.
2.26. Plan means the Seaboard Corporation Executive
Retirement Plan 2005 Amendment and Restatement as set forth
herein and as amended from time to time.
2.27. Plan Administrator means the Committee, if any, but
if at any time there is no Committee acting hereunder then the
Plan Administrator will be Seaboard Corporation.
2.28. Plan Year or Year means the 12-month period beginning
January 1 and ending December 31.
2.29. Related Company means any corporation which is a
member of a controlled group of corporations (as defined in Code
Section 414(b)) that includes the Company.
2.30. Separation Date means the date the Participant has a
Separation from Service.
2.31. Separation from Service means ceasing to be employed
by the Company or any Related Company for any reason, and
having a separation from service within the meaning of Code
Section 409A.
2.32. Years of Service at any particular time means the
years of service the Participant has at that time as determined
under the Pension Plan for vesting purposes.
2.33. Years of Accrual Service at any particular time means
Years of Accrual Service at that time as determined under the
Pension Plan, except that Years of Accrual Service shall be
determined (a) based upon all hours of service with either the
Company or a Related Company whether or not the Participant was a
Participant in the Plan at the time of such service, (b) without
applying the maximum limit of 35 Years of Accrual Service under
the Pension Plan, and (c) without applying the Pension Plan's
exclusion of service during any period from January 1, 1994
through January 1, 1997 that the Participant was accruing
benefits under either this Plan or any predecessor plan that
merged into this Plan. Notwithstanding the preceding sentence,
Years of Accrual Service will not include any service for an
entity occurring prior to the time the entity became a Related
Company.
ARTICLE III.
PARTICIPATION
3.1. Participation Date. All persons who are Participants
immediately prior to the Effective Date will remain Participants
as of the Effective Date, and the Participation Date of any
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such Participant is that date prior to the Effective Date that
he became a Participant. An employee of the Company who is not
a Participant on the Effective Date, and who is determined by the
President or a Senior Vice President of the Company to be a
member of a select group of management or highly compensated
employees, will become a Participant if he is designated as a
Participant by the President or a Senior Vice President of the
Company. Such employee's Participation Date will be the date
specified by the President or a Senior Vice President of the
Company. Commencement of participation does not guarantee any
Participant continued active participation hereunder. Those
employees who are Participants in the Plan as of the Effective
Date of this 2005 amendment and restatement are listed on
Addendum A attached hereto.
3.2. Cessation of Participation. A Participant will cease to
be a Participant when he no longer has an Accrued Benefit.
3.3. Inactive Participants. An Inactive Participant will
have a frozen Accrued Benefit hereunder. If at any time the
frozen Accrued Benefit of an Inactive Participant is zero, then
the Inactive Participant will no longer have an Accrued Benefit
and will cease to be a Participant.
3.4. Participation not Contract of Employment. The Plan
does not constitute a contract of employment, and participation
in the Plan will not give any Participant the right
to continue in the employ of or provide services to the Company,
or interfere in any way with the right of the Company to
terminate the employment of the Participant or give any right or
claim to any benefit under the terms of the Plan unless such
right or claim is specifically vested under the terms of the
Plan.
ARTICLE IV.
RETIREMENT BENEFITS
4.1. Determination of Accrued Benefit. A Participant's
Accrued Benefit is a benefit payable in the form of a single
life annuity commencing on the Participant's Normal Retirement
Date (or the Participant's Separation Date if later than his
Normal Retirement Date) in an annual amount equal to the excess
of (1) the sum of (a) (the "Pre-Participation Service Benefit")
and (b) (the "Post-Participation Service Benefit") below, over
(2) the sum of (c) (the "Pension Plan Offset"), (d) (the "Prior
Cash Payment Offset"), (e) (the "Prior SERP Frozen Benefit
Offset"), and (f) (the "Individual SERP Agreement Offset")
below; provided, however, in no event shall the Participant's
Accrued Benefit be less than the amount of the Participant's
Accrued Benefit immediately prior to the Effective Date.
(a) Pre-Participation Service Benefit. A Participant's Pre-
Participation Service Benefit will be determined taking
into account only the Participant's Years of Accrual
Service as of his Participation Date
("Pre-Participation Years of Accrual Service") and will
be an amount equal to the sum of:
(i) .65% of his Final Average Earnings multiplied by
his Pre-Participation Years of Accrual Service; and
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(ii) .50% of his Final Average Earnings in excess of
Covered Compensation multiplied by his
Pre-Participation Years of Accrual Service.
(b) Post-Participation Service Benefit. A Participant's
Post-Participation Service Benefit will be determined
taking into account the Participant's Years of Accrual
Service after the Participant's Participation Date
("Post-Participation Years of Accrual Service") and
will be an amount equal to 2.5% of his Final Average
Earnings multiplied by his Post-Participation Years
of Accrual Service.
(c) Pension Plan Offset. The amount of a Participant's
Pension Plan Offset is the Actuarial Equivalent of the
Participant's accrued benefit as defined in the Pension
Plan, determined as if such benefit were payable in the
form of a single life annuity that commences on the
Participant's Normal Retirement Date or, if later, the
Participant's Separation Date.
(d) Prior Cash Payment Offset. This offset applies only to
those Participants who received one or more cash
payments under the provisions of the Plan in effect
from January 1, 1994 through January 1, 1997. The
amount of the Prior Cash Payment Offset is the
Actuarial Equivalent of the benefit satisfied with such
cash payments, determined as if such benefit were
payable in the form of a single life annuity that
commences on the Participant's Normal Retirement Date
or, if later, the Participant's Separation Date. The
name of each Participant who received one or more such
cash payments and the benefit satisfied with such cash
payment or payments are listed on Addendum B attached
hereto.
(e) Prior SERP Frozen Benefit Offset. This offset applies
only to those Participants who were participants under
the Plan as in effect prior to 1997 and have a frozen
accrued benefit under the Plan at that time payable as
a 10 year certain and continuous annuity. The amount of
the Prior SERP Frozen Benefit Offset is the Actuarial
Equivalent of such frozen accrued benefit, determined
as if such benefit were payable in the form of a single
life annuity that commences on the Participant's Normal
Retirement Date or, if later, the Participant's
Separation Date. The name of each Participant who has
such a frozen accrued benefit and the amount of such
frozen accrued benefit are listed on Addendum C
attached hereto.
(f) Individual SERP Agreement Offset. This offset applies
only to those Participants who have an individual
supplemental retirement arrangement with the Company.
The amount of the Individual SERP Agreement Offset is
the Actuarial Equivalent of the benefit under the
individual supplemental retirement arrangement,
determined as if such benefit were payable in the
form of a single life annuity that commences on the
Participant's Normal Retirement Date or, if later, the
Participant's Separation Date. The name of each
Participant who has such an individual retirement
arrangement with the Company is listed on Addendum D
attached hereto.
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4.2. Early Retirement Accrued Benefit. A Participant's
Accrued Benefit on or after the Participant's Early Retirement
Date (regardless of whether the Participant's Separation from
Service occurs before or after the Participant's Early
Retirement Date) and prior to the Participant's Normal
Retirement Date will be an early retirement Accrued Benefit. The
Participant's early retirement Accrued Benefit determined as of a
date that is on or after the date the Participant attains age 55
will equal the Participant's Accrued Benefit as determined under
Section 4.1, reduced by 4% for each year by which the date of the
determination of such Participant's early retirement Accrued
Benefit precedes the Participant's Normal Retirement Date. The
Participant's early retirement Accrued Benefit determined as of a
date that is prior to the date the Participant attains age 55
will equal the actuarial equivalent, as of such determination
date, based on the interest and mortality tables then applicable
under Section 2.3, of the Participant's early retirement Accrued
Benefit at age 55 as determined in accordance with the preceding
sentence.
ARTICLE V.
PAYMENT OF BENEFITS
5.1. Fully Vested Benefits. A Participant will be fully
vested in the Participant's Accrued Benefit upon the first to
occur of:
(a) The Participant's Normal Retirement Date if the
Participant is an employee of the Company or a Related
Company on the Participant's Normal Retirement Date; or
(b) The Participant's disability if such disability occurs
while the Participant is an employee of the Company or
a Related Company; or
(c) The Participant's death while the Participant is an
employee of the Company or a Related Company; or
(d) The Participant's completion of five Years of Service;
or
(e) A Change of Control.
5.2. Forfeitures. If the Participant does not have a vested
Accrued Benefit under the provisions of Section 5.1 upon the
Participant's Separation Date, then the Participant's Accrued
Benefit will be forfeited.
5.3. Commencement of Payment. If the Participant's vested
Accrued Benefit is paid in the form of an annuity as
hereinafter provided, then payment will commence as soon as
practical after the later of the Participant's Separation
Date or the date the Participant attains age sixty-two (62);
provided, however, if the Participant is eligible for an early
retirement benefit as provided in Section 4.2, then payment will
commence as soon as practical following the later of the
Participant's Separation Date or the date the
Participant attains age 55, or at such later date as applicable
under Section 5.6. If the Participant's vested Accrued Benefit
is paid in the form of a lump sum as hereinafter provided, then
payment will be made as soon as practical following the
Participant's Separation from Service, or, if applicable, as soon
as practical after a Change of Control, or at such later date as
applicable under Section 5.6. If the Participant's vested
Accrued
8
Benefit is paid in the form of installments as
hereinafter provided, then payment will commence as soon as
practical following the Participant's Separation from Service, or
at such later date as applicable under Section 5.6.
Notwithstanding the preceding provisions of this Section 5.3 or
any other provisions of the Plan to the contrary, payment of the
vested Accrued Benefit of a Key Participant that is made on
account of the Key Participant's Separation from Service will not
commence prior to the earlier of (a) the date which is six (6)
months after the date of the Key Participant's Separation from
Service, or (b) the death of the Key Participant. The
restriction in the preceding sentence will not apply to a payment
to a Key Participant that is made on account of a Change of
Control.
5.4. Method of Payment. The Participant's vested Accrued
Benefit will be paid in one of the following methods:
(a) Lump Sum Payment: A lump sum payment is a single cash
payment in an amount equal to the Actuarial Value of
the Participant's vested Accrued Benefit determined as
of the payment date; provided, however, if the
Participant is eligible to receive an early retirement
benefit under Section 4.2, then the amount of a single
lump sum payment to the Participant will equal the
present value determined as of the payment date of the
Participant's early retirement benefit under Section
4.2 payable in the form of a single life annuity
commencing on the payment date and determined by using
the interest and mortality tables then applicable for
purposes of determining Actuarial Value. The
Participant's vested Accrued Benefit will always be
paid in a lump sum payment if as of the commencement
date determined under Section 5.3 the dollar amount of
the lump sum payment is less than or equal to the sum
of $50,000. Subject to the Participant's right to
elect another method of payment under Section 5.5, the
Participant's vested Accrued Benefit also will be paid
in the form of a lump sum payment if the date of the
Participant's Separation from Service is on or after
the later of (i) November 4, 2009, or (ii) five (5)
years after the Participant's Participation Date. Also,
if not otherwise paid in a lump sum payment under the
provisions of the preceding sentence, and subject to
the Participant's right to elect another method of
payment under Section 5.5, the Participant's vested
Accrued Benefit will be paid in a lump sum payment if
the Participant is involuntarily terminated, or if the
Participant's Separation Date is on or after his Normal
Retirement Date. A Participant's vested Accrued
Benefit will always be paid in a lump sum upon a Change
of Control whether or not the Participant then has a
Separation from Service. If a Change of Control occurs
after a Participant has had a Separation from Service
and has commenced to receive payment in the form of an
annuity, then the lump sum payment to be made under the
preceding sentence shall be in an amount equal to the
Actuarial Value of the Participant's unpaid annuity
determined as of the date of the lump sum payment;
(b) Installment Payments: Installment payments are five
annual payments in a five-consecutive-year period. The
principal amount of each payment is equal to one fifth
of the amount that would be paid to the Participant on
the date the installment payments commence if instead
the payment on that date were a lump
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sum payment as determined under Section 5.4(a). Each
installment payment will also include interest on the
aggregate amount of the unpaid installments determined
by applying the Interest Rate. If the Participant is
eligible to receive his vested Accrued Benefit in the
form of a lump sum, and if the dollar amount of the
lump sum payment determined under Section 5.4(a) is
greater than the sum of $50,000, then the Participant's
benefit payment will be made in the form of installment
payments if elected by the Participant in accordance
with the provisions of Section 5.5.
(c) Annuity Payment: An annuity is payment in one of the
forms described in the subparagraphs under this
paragraph (c) that is the Actuarial Equivalent of the
Participant's vested Accrued Benefit. If the
Participant is not eligible to receive his vested
Accrued Benefit in the form of a lump sum payment under
the provisions of the preceding paragraph (a), then the
Participant's vested Accrued Benefit will be paid in
the form o f either the annuity described in
subparagraph (i) below, or the annuity described in
subparagraph (ii) below, whichever applicable. If the
Participant is eligible to receive his vested Accrued
Benefit in the form of a lump sum, and if the payment
in a lump sum is not mandatory hereunder, then the
Participant's benefit payment will be made in one of
the annuity forms described in the following
subparagraphs if elected by the Participant in
accordance with the provisions of Section 5.5; provided,
however, if the Participant has an Eligible Spouse at
the time the election is made and elects a joint and
survivor annuity payment, but does not have an Eligible
Spouse at the time benefit payments commence, then
benefit payments will be made in the form of a single
life annuity unless the Participant elects a single
life annuity with a ten (10) year term certain in
accordance with the provisions of Section 5.5.
(i) Single Life Annuity. A single life annuity is the
Actuarial Equivalent of the Participant's vested
Accrued Benefit payable in annual payments to the
Participant for the lifetime of the Participant. If
the Participant is not eligible to receive his vested
Accrued Benefit in the form of a lump sum payment under
the provisions of the preceding subparagraph (a), and
if the Participant has no Eligible Spouse on the date
payment of the Participant's benefit commences, then
payment of the Participant's vested Accrued Benefit
will be in the form of a single life annuity.
(ii) 50% Joint and Survivor Annuity. A 50% joint and
survivor annuity is the Actuarial Equivalent of the
Participant's vested Accrued Benefit payable in annual
payments to the Participant for the lifetime of the
Participant and to the Participant's Eligible Spouse
upon the Participant's death for the lifetime of the
Participant's Eligible Spouse, with each payment to the
Participant's Eligible Spouse being 50% of the amount
of each payment to the Participant. If the Participant
is not eligible to receive his vested Accrued Benefit
in the form of a lump sum payment under the provisions
of the preceding subparagraph (a), and if the
Participant has an Eligible Spouse on the date payment
of the Participant's
10
benefit commences, then payment of the Participant's
vested Accrued Benefit will be in the form of a 50%
joint and survivor annuity.
(iii) Single Life Annuity with 10 Year Term Certain. A
single life annuity with a ten (10) year term certain
is a single life annuity described in subparagraph (i)
above with a guaranteed payment term of ten (10) years.
(iv) 75% Joint and Survivor Annuity. A 75% joint and
survivor annuity is the Actuarial Equivalent of the
Participant's vested Accrued Benefit payable in annual
payments to the Participant for the lifetime of the
Participant and to the Participant's Eligible Spouse
upon the Participant's death for the lifetime of the
Participant's Eligible Spouse, with each payment to the
Participant's Eligible Spouse being 75% of the amount
of each payment to the Participant.
(v) 100% Joint and Survivor Annuity. A 100% joint and
survivor annuity is the Actuarial Equivalent of the
Participant's vested Accrued Benefit payable in annual
payments to the Participant for the lifetime of the
Participant and to the Participant's Eligible Spouse
upon the Participant's death for the lifetime of the
Participant's Eligible Spouse, with each payment to the
Participant's Eligible Spouse being 100% of the amount
of each payment to the Participant.
5.5. Participant Elections of Method of Payment. A
Participant may elect a method of payment of the Participant's
vested Accrued Benefit other than the method provided in
the Plan; provided, however, a Participant's method of payment
election will not be effective if a different method of payment
is mandatory under the provisions of the Plan. A method of
payment election must be made in accordance with subparagraphs
(a) and (b) of this Section 5.5. A method of payment election
must be made on a form provided by the Committee and will not be
validly made until delivered to the Committee.
(a) Initial Elections: An Employee who is a Participant in
the Plan on December 31, 2006, must make the initial
method of payment election on or before December 31,
2006; provided, however, in no event may a method of
payment election made in 2006 either (i) result in the
deferral to a subsequent Year of the payment of any
amount otherwise to be paid in 2006, or (ii) accelerate
to 2006 a payment otherwise to be made in a later Year.
An Employee who becomes a Participant after December 31,
2006, must make the method of payment election on or
before the Employee's Participation Date. Any
Participant who does not elect a method of payment is
deemed to have elected the method otherwise provided in
the Plan.
(b) Subsequent Elections: Except as hereafter provided in
this subparagraph (b), a Participant's method of
payment election is irrevocable. If a Participant has
elected in accordance with the provisions of the
preceding subparagraph (a) of this Section 5.5 that the
method of payment of the Participant's vested Accrued
Benefit will be an annuity, and if payment of the
Participant's vested Accrued Benefit in a particular
method of payment is not mandatory, then at any time
prior to the time the first annuity payment to the
Participant is made, the Participant
11
may elect to change the form of annuity to another form
of annuity provided under the provisions of
subparagraph (c) of Section 5.4. Such election shall
be made by an instrument in writing signed by the
Participant and delivered to the Committee
5.6. Participant Elections of Payment Date. A Participant
may elect that the Participant's vested Accrued Benefit be paid,
or that payment commence, on a date later than the payment date
otherwise provided in the Plan. A Participant's payment date
election under this Section 5.6 is irrevocable. However, a
Participant's payment date election will not be effective if
a different payment date or payment commencement date is
mandatory under the provisions of Section 5.3. A payment
date election by the Participant must be made on a form provided
by the Committee and will not be validly made until delivered to
the Committee. An Employee who is a Participant in the Plan on
December 31, 2006, must make the payment date election on or
before December 31, 2006; provided, however, in no event may a
payment date election made in 2006 either (i) result in the
deferral to a subsequent Year of the payment of any amount
otherwise to be paid in 2006, or (ii) accelerate to 2006 a
payment otherwise to be made in a later Year. An Employee who
becomes a Participant after December 31, 2006, must make a
payment date election on or before the Employee's Participation
Date. Any Participant who does not make a payment date election
as described in this subparagraph will be deemed to have elected
the payment date provided in the Plan.
5.7. Death Benefit. If the Participant dies prior to the
commencement of payment of Participant's Accrued Benefit, then
the Participant's vested Accrued Benefit will be paid to the
Participant's beneficiary as determined under Section 5.8 as
soon as practical after the Participant's death in the form
of a lump sum payment. If the Participant dies after the payment
or commencement of payment of the Participant's Accrued Benefit,
no further payments will be made hereunder with respect to
the Participant and the Participant's benefits hereunder shall
be deemed to be fully paid; provided, however, that if at the
time of the Participant's death, the Participant's Accrued
Benefit was being paid in the form of a single life annuity
with a ten (10) year term certain and all of the guaranteed
payments had not been made, or in the form of installment
payments and all of the installment payments
had not been made, then the remaining guaranteed payments or
installment payments will be paid to the Participant's
beneficiary as determined under Section 5.8; and provided,
further, that if at the time of the Participant's death, the
Participant's Accrued Benefit was being paid in the form of a
joint and survivor annuity, then if the Participant's Eligible
Spouse survives the Participant, the survivor annuity benefit
will be paid to the Participant's Eligible Spouse until the death
of the Participant's Eligible Spouse.
5.8. Determination of Beneficiary. Each Participant from
time to time may designate any person or persons, trust, estate
or charitable institution (who may be designated concurrently
or contingently) to whom the Participant's vested Accrued
Benefit under the Plan will be paid if the Participant dies prior
to the payment or commencement of payment of the Participant's
Accrued Benefit or if the Participant dies after the
commencement of payment in the form of
a single life annuity with a ten (10) year term certain or in the
form of installments and prior to the completion of such
guaranteed payments or installments. A beneficiary designation
will be effective only if filed in writing with the Plan
Administrator while the
12
Participant is alive. The Participant's beneficiary will be the
beneficiary designated on the last such written designation
filed by the Participant prior to the Participant's death.
If a Participant fails to validly designate a beneficiary,
then the Participant's beneficiary will be the Participant's
Eligible Spouse, but if the Participant is not survived by an
Eligible Spouse then the Participant's beneficiary will be the
personal representative of the Participant's estate; provided,
however, if the Participant does not otherwise have a probate
estate, the Plan Administrator may pay the Participant's vested
Accrued Benefit to such person or persons whom the Plan
Administrator determines, in the Plan Administrator's sole and
absolute discretion, would be the beneficiaries in a probate
proceeding, and the Plan Administrator shall have no liability to
any person for any such determination.
ARTICLE VI.
FUNDING
6.1. Unfunded Plan. This Plan is an unfunded plan for income
tax purposes and for purposes of Title I of ERISA. The Company
may from time to time deposit assets in a trust established by
the Company that is subject to the creditors of the Company
but which assets must otherwise be used for the purpose of
paying Accrued Benefits hereunder. In the event of a Change
of Control, the Company will, as soon as practical following
such Change of Control, deposit or cause to be deposited in
such trust assets of an amount sufficient (as determined by
the actuary of the Pension Plan) to pay all vested Accrued
Benefits of the Participants as determined as of the first day
following such Change of Control.
ARTICLE VII.
WITHHOLDING OF TAXES
7.1. Tax Withholding. The Company has the right to retain
and withhold from any payment of benefits hereunder the amount
of taxes required by any government to be withheld or otherwise
be deducted and paid with respect to such payment.
ARTICLE VIII.
PLAN ADMINISTRATOR
8.1. Membership and Authority. The Board may appoint, or
delegate the appointment of, a Committee to act as Plan
Administrator. In the event a Committee is acting as Plan
Administrator, the Committee shall act by a majority of its
members except to the extent it has delegated responsibilities
hereunder. The Plan Administrator shall have the following
powers, rights and duties in addition to those vested in it
elsewhere in the Plan:
(a) To adopt such rules of procedure and regulations as, in
its opinion, may be necessary for the proper and
efficient administration of the Plan and as are
consistent with the provisions of the Plan.
(b) To enforce the Plan in accordance with its terms and
with such applicable rules and regulations as may be
adopted.
13
(c) To construe and interpret the Plan in the Plan
Administrator's sole discretion, and to determine all
questions arising under the Plan, including the power
to determine the rights of Participants and their
beneficiaries and the amount of their respective
benefits.
(d) To maintain and keep adequate records concerning the
Plan and concerning its proceedings and acts in such
form and detail as the Plan Administrator may decide.
(e) To direct all payments of benefits under the Plan.
8.2. Delegation. In exercising its authority to control
and manage the operation and administration of the Plan, the Plan
Administrator may employ agents and counsel (who may also be
employed by the Company) and delegate to them such powers
as the Plan Administrator deems desirable.
8.3. Information to be Furnished. The Company shall
furnish the Plan Administrator or its delegees such data and
information as may be required. The records of the Company
as to an employee's or Participant's period of employment,
Separation from Service and the reason therefore, leave of
absence and compensation will be conclusive on all persons unless
determined to be incorrect.
8.4. Plan Administrator's Decision Final. Any
interpretation of the Plan and any decision on any matter
within the discretion of the Plan Administrator made in good
faith is binding on all persons. A misstatement or other mistake
of fact shall be corrected when it becomes known, and the Plan
Administrator shall make such adjustment on account thereof as it
considers equitable and practicable.
8.5. Remuneration and Expenses. No remuneration shall be
paid to the Plan Administrator (or any Committee member) for
services hereunder. All expenses of the Plan Administrator
(or a Committee member) incurred in the performance of the
administration of the Plan shall be reimbursed by the Company.
8.6. Indemnification of Committee Member. The Committee and
the individual members thereof shall be indemnified by the
Company against any and all liabilities, losses, costs, and
expenses (including fees and expenses) of whatsoever kind and
nature which may be imposed on, incurred by or asserted against
the Committee or the members by reason of the performance of a
Committee function if the Committee or such members did not act
dishonestly or in willful or negligent violation of the law or
regulations under which such liability, loss, cost or expense
arises.
8.7. Resignation or Removal of Committee Member. A
Committee member may resign at any time by giving ten (10) days
advance written notice to the Company and the other
Committee members. The Company may remove a Committee member by
giving advance written notice to him or her, and the other
Committee members.
14
8.8. Interested Committee Member. A member of the
Committee may not decide or determine any matter or question
concerning his or her own benefits under the Plan.
ARTICLE IX.
CLAIMS PROCEDURE
9.1. Claim. Any person claiming a benefit, requesting an
interpretation or ruling under the Plan, or requesting
information under the Plan shall present the request in writing
to the Committee which shall respond in writing as soon as
practicable.
9.2. Denial of Claim. If the claim or request is denied,
the written notice of denial shall be made within ninety (90)
days of the date of receipt of such claim or request by the
Committee and shall state:
(a) The reason for denial, with specific reference to the
Plan provisions on which the denial is based.
(b) A description of any additional material or information
required and an explanation of why it is necessary.
(c) An explanation of the Plan's claim review procedure.
9.3. Review of Claim. Any person whose claim or request is
denied or who has not received a response within ninety (90) days
may request review by notice given in writing to the Committee
within sixty (60) days of receiving a response or one hundred
fifty (150) days from the date the claim was received by the
Committee. The claim or request shall be reviewed by the
Committee who may, but shall not be required to, grant the
claimant a hearing. On review, the claimant may have
representation, examine pertinent documents, and submit issues
and comments in writing.
9.4. Final Decision. The decision on review shall normally
be made within sixty (60) days after the Committee's receipt of
a request for review. If an extension of time is required for
a hearing or other special circumstances, the claimant shall
be notified and the time limit shall be one hundred twenty
(120) days after the Committee's receipt of a request for review.
The decision shall be in writing and shall state the reasons
and relevant plan provisions. All decisions on review shall be
final and bind all parties concerned.
ARTICLE X.
AMENDMENTS OR TERMINATION OF THE PLAN
10.1. Board. The Board may, at any time or times, amend the
Plan, pursuant to written resolution adopted by the Board;
provided, however, no amendment shall be effective to decrease
the amount of any Participant's Accrued Benefit which, at
the time of the amendment, was fully vested hereunder, unless
the Participant agrees to such amendment, and no amendment may
relieve the Company of its obligation under Article VI unless
all of the Participants agree to such amendment. The Board may,
at any time, terminate the Plan by written resolution adopted
by the Board. In the event the Board terminates the Plan,
all Participants who are employees of
15
the Company or a Related Company at the time of such
termination, will become fully vested in their Accrued Benefits.
Any payment hereunder will be made as provided herein regardless
of the Plan termination. In addition to the preceding
amendment authority of the Board, the appropriate officers
of the Company are authorized to amend the Plan from time to
time as they deem advisable for purposes of complying with any
provisions of the Internal Revenue Code and Treasury Regulations
and any other guidance issued by the Secretary of the Treasury,
and the Committee is authorized to amend the Plan as provided in
Section 2.2.
10.2. Deemed Amendment. The Secretary of the Treasury has
been directed by the United States Congress to adopt regulations
for the interpretation and application of Code Section 409A.
Proposed regulations have been issued as of the date of the
adoption of this amended and restated Plan. It is the
Company's intention to amend the Plan to comply with the
requirements applicable to the Plan under the Code and such
regulations and other guidance as authorized under
the last sentence of Section 10.1. To the extent final
regulations require a further amendment to the Plan, then until
such time the Plan is actually so amended, the Plan shall be
deemed to be amended to the extent necessary to be in compliance
with such requirements and the Plan shall be interpreted and
administered accordingly.
ARTICLE XI.
MISCELLANEOUS
11.1. Captions. The captions of articles, sections,
paragraphs and subparagraphs of this Plan are for convenience
only and shall not control or affect the meaning or construction
of any of its provisions.
11.2. Company Action. Except as may be specifically provided
herein, any action required or permitted to be taken by the
Company may be taken on behalf of the Company by any officer of
the Company.
11.3. Company Records. Records of the Company as to an
employee's or Participant's period of employment, Separation
from Service and the reason therefore, leaves of absence,
reemployment and compensation will be conclusive on all persons,
unless determined to be incorrect.
11.4. Evidence. Evidence required of anyone under the
Plan may be by certificate, affidavit, document or other
information which the person acting on it considers pertinent
and reliable, and may be signed, made or presented by the proper
party or parties.
11.5. Gender and Number. Where the context permits, words
in the masculine gender shall include the feminine and neuter
genders, the plural shall include the singular, and the singular
shall include the plural.
11.6. Governing Law. Except to the extent governed by ERISA,
the provisions of this Plan shall be construed and interpreted
according to the laws of the state of Delaware.
11.7. Nonassignability. Neither a Participant nor any other
person shall have any right to commute, sell, assign, transfer,
pledge, anticipate, mortgage or otherwise encumber,
16
hypothecate or convey in advance of actual
receipt the amounts, if any, payable hereunder, or any part
thereof, which are, and all rights to which are, expressly hereby
declared to be unassignable and nontransferable. No part of the
amounts payable shall, prior to actual payment, be subject to
seizure or separation for the payment of any debts, judgments,
alimony or separate maintenance owed by a Participant or any
other person, nor be transferable by operation of law in the
event of a Participant's or another person's bankruptcy or
insolvency.
11.8. Participant Cooperation. A Participant will
cooperate with the Company by furnishing any and all information
requested by the Company in order to facilitate the payment of
benefits hereunder and such other action as may be requested by
the Company.
11.9. Successors. The provisions of this Plan shall bind
and inure to the benefit of the Company and its successors and
assigns. The term successors as used herein shall include any
corporate or other business entity which shall, whether by
merger, consolidation, purchase or otherwise acquire all or
substantially all of the business and assets of the Company,
and successors of any such corporation or other business entity.
11.10. Unsecured General Creditor. Participants and their
beneficiaries, heirs, successors, and assigns will have no
secured interest or claim in any property or
assets of the Company whether or not such assets are held in a
trust that may be used for the purpose of paying benefits
hereunder. For purposes of the Plan, any and all of the
Company's assets shall be, and remain, the general, unpledged,
assets of the Company. The Company's obligation under the Plan
shall be merely that of an unfunded and unsecured promise of the
Company to pay money in the future. No Company shall have any
obligation under this Plan with respect to individuals other than
that Company's employees.
11.11. Validity. In case any provision of this Plan shall
be held 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
and invalid provision had never been inserted herein.
11.12. Waiver of Notice. Any notice required under the Plan
may be waived by the person entitled to notice.
The Company hereby agrees to the provisions of this Plan,
and, in Witness Thereof, the Company causes this Agreement to be,
executed on this 6th day of March, 2006.
SEABOARD CORPORATION
By: /S/ H. Harry Bresky
H. Harry Bresky,
President
17