SEABOARD CORPORATION
EXECUTIVE DEFERRED COMPENSATION PLAN
AS AMENDED AND RESTATED
EFFECTIVE JANUARY 1, 2005
SEABOARD CORPORATION
EXECUTIVE DEFERRED COMPENSATION PLAN
ARTICLE I
HISTORY, PURPOSE AND EFFECTIVE DATE
1.01 History and Purpose. Seaboard Corporation
(the "Company") established the Seaboard Corporation Executive
Deferred Compensation Plan ( the "Plan") effective
January 1, 1999. The primary purpose of the Plan is to
provide for the mandatory deferral on a pre-tax basis of salary
and bonus payable with respect to a particular Year to certain
designated Executives whose Compensation for the Year exceeds the
maximum allowable deductible amount of compensation under
Section 162(m) of the Internal Revenue Code of 1986, as amended
(the "Code") and Treasury Regulations thereunder. The Plan is
intended to constitute an unfunded "top hat" arrangement under
Title I of the Employee Income Retirement Security Act of 1974
(as amended) ("ERISA").
1.02 Effective Date. The Plan is a nonqualified deferred
compensation plan within the meaning of Section 409A of the Code.
Accordingly, the Plan is hereby amended and restated effective
January 1, 2005 for the purpose of satisfying the requirements of
Section 409A of the Code, and the Plan shall be construed and
administered accordingly. This amended and restated Plan applies
only to amounts deferred under the Plan after December 31, 2004.
The Plan as in effect on December 31, 2004, (which has not been
amended since its original effective date of January 1, 1999)
will continue to apply to amounts deferred under the Plan and
vested as of December 31, 2004, and earnings thereon. An
Executive who was participating in the Plan as of December 31,
2004, shall continue to participate in this amended and restated
Plan until the Board designates otherwise.
ARTICLE II
DEFINITIONS
2.01 Account or Account Balance. "Account" or "Account
Balance" shall mean with respect to an Executive the sum of his
Annual Deferral Amounts and Company Contribution Amounts
designated on his behalf, if any, as adjusted for Investment
Return, and reduced by distributions hereunder. This Account
shall be a bookkeeping entry only and shall be utilized solely
as a device for the measurement and determination of the amounts
to be paid to an Executive pursuant to this Plan.
2.02 Annual Deferral Amount. "Annual Deferral Amount" shall
mean that portion of an Executive's salary or bonus for a Year
which is deferred pursuant to this Plan. In the event of an
Executive's Separation from Service prior to the end of a Year,
the Annual Deferral Amount
for such Year shall be the actual
amount, if any, deferred prior to the Executive's Separation from
Service.
2.03 Beneficiary. "Beneficiary" shall mean the person,
persons, estate or other legal entity of, or established by, an
Executive entitled to receive any benefits under this Plan in the
event of the Executive's death.
2.04 Board. "Board" shall mean the Board of Directors of the
Company.
2.05 Change in Control. "Change in Control" shall mean with
respect to any Executive an event or transaction which results in
one or more of the following and which constitutes a change in
control event 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; or
(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
in Control under this Section 2.05, the attribution of ownership
rules under Code Section 318(a) shall apply.
2.06 Code. "Code" shall mean the Internal Revenue Code of
1986, as may be amended from time to time, and final Treasury
Regulations issued thereunder.
2.07 Company. "Company" shall mean Seaboard Corporation and,
for purposes of all references herein to an Executive's
Compensation or his employer's deduction, shall include every
member of the Company's affiliated group, as determined under
Section 1504 of the Code.
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2.08 Company Contribution Amount. "Company Contribution
Amount" shall mean a nonelective amount credited to an
Executive's Account, at any time or times, which may be either
a Company Discretionary Contribution or a Company
Regular Contribution. A Company Discretionary Contribution is an
amount that is credited to an Executive's Account, at any
time or times, in the discretion of the Board. A Company
Regular Contribution is an amount that is credited to the Account
of an Executive with respect to any one or more of an Annual
Deferral Amount, a Company Discretionary Contribution, or a
portion of the Executive's Compensation, as herein provided.
2.09 Compensation. "Compensation" shall mean an Executive's
"applicable employee remuneration" as defined in Section
162(m)(4) of the Code and final Treasury Regulations issued
thereunder.
2.10 Excess Compensation. "Excess Compensation" shall mean
the excess of Adjusted Compensation over the maximum amount of
compensation determined pursuant to Code Section 401(a)(17) that
can be taken into account under the 401(k) plan maintained by
Seaboard Corporation for salaried employees for the plan year of
such 401(k) plan that ends within the Year Excess Compensation is
being determined hereunder. For this purpose, "Adjusted
Compensation" shall mean the Executive's Compensation for a Year
reduced by (a) reimbursements or other expense allowances, fringe
benefits (cash and noncash), moving expenses, and welfare
benefits; (b) any amount of taxable income recognized by the
Participant upon the exercise of an option under any option plan
or program maintained by the Company; and (c) any taxable income
recognized by the Participant as a result of a distribution under
any nonqualified deferred compensation arrangement (including
this Plan), and increased by any elective contributions by the
Executive to a plan maintained by the Company and not includable
in gross income due to the provisions of Code Sections 125,
401(k) or 132(f).
2.11 Executive. "Executive" shall mean any member of
management or highly compensated employee who is a "covered
employee" under Section 162(m)(3) of the Code with respect to any
Year, and who is designated by the Board to participate in the
Plan for purposes of the mandatory Annual Deferral Amount under
Article III, or for purposes of a Company Discretionary
Contribution under Article IV, or both. An Executive who is
designated by the Board to participate in the Plan for purposes
of the mandatory Annual Deferral Amount shall continue to
participate for such purpose each year until the Board designates
otherwise or until Executive's Separation from Service. An
Executive who is designated by the Board to participate in the
Plan for purposes of a Company Discretionary Contribution for a
particular Year shall not participate in the Plan for any other
purpose except the purpose so designated and shall not
participate in the Plan for any other Year except the Year as
designated, unless and until a new designation is made by the
Board. Executive shall also mean a former Executive for whom an
Account is maintained hereunder.
2.12 Investment Return. "Investment Return" shall mean the
amount that is either credited to Executive's Account or deducted
from Executive's Account to reflect the positive or negative
return of the investment measure or measures selected by
Executive pursuant to Article V.
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2.13 Matching Percentage. "Matching Percentage" shall mean
the percentage used to calculate the "Employer Matching
Contributions" pursuant to Section 3.02 of the Retirement Savings
Plan for Seaboard Corporation, as such percentage may be amended
from time to time. The Matching Percentage shall initially be
3 percent (3%).
2.14 Plan. "Plan" shall mean the Seaboard Corporation
Executive Deferred Compensation Plan, as set forth herein and as
amended from time to time.
2.15 Plan Administrator. "Plan Administrator" shall mean the
Company or such person or persons designated by the Company to
act in such capacity. No individual who participating hereunder
shall have any authority with respect to the administration of
the Plan.
2.16 Related Company. "Related Company" means any
corporation (including the Company) which is a member of a
controlled group of corporations (as defined in Section 414(b) of
the Code) that includes the Company.
2.17 Separation from Service. "Separation from Service"
means an Executive's separation from service with the Company and
all Related Companies within the meaning of Section 409A of the
Code.
2.18 Unforeseeable Emergency. "Unforeseeable Emergency"
means an unanticipated emergency that is caused by an event
beyond the control of the Executive that would result in severe
financial hardship to the Executive resulting from (i) a sudden
and unexpected illness or accident of the Executive or a
dependent of the Executive, (ii) a loss of the Executive's
property due to casualty, or (iii) such other extraordinary and
unforeseeable circumstances arising as a result of events beyond
the control of the Executive, all as determined in the sole
discretion of the Plan Administrator.
2.19 Valuation Date. "Valuation Date" shall mean the last
day of each calendar quarter and the date of distribution of any
portion of the Executive's Account hereunder and any other date
determined by the Plan Administrator in its discretion for any
reason from time to time.
2.20 Year. "Year" shall mean a calendar year.
ARTICLE III
ANNUAL DEFERRAL AMOUNTS
3.01 Application and Deferral. The provisions of this
Article III apply to any individual who is designated by the
Board as an Executive for purposes of the Annual Deferral Amount.
Any such designation will be effective commencing on the first
day of the Year following the Year in which the designation is
made.
3.02 Deferral. A portion of such Executive's Compensation
will be deferred each Year in accordance with the terms and
conditions of this Article III.
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3.03 Amount of Annual Deferral. The amount of an Executive's
Compensation which shall be deferred each Year under this Article
III shall equal the excess of such Executive's Compensation for
any Year (including any bonus that may be paid with respect to
such Year in the following Year and that, but for Section 162(m)
of the Code, would be deductible by the Company in such current
Year) over one million dollars ($1,000,000) (or such other amount
specified in Section 162(m) of the Code).
3.04 Time of Annual Deferral. Compensation shall not be
deferred in any Year until the Executive has been paid
Compensation with respect to such Year equal to or exceeding one
million dollars ($1,000,000).
3.05 Credit to Account. The Annual Deferral Amount shall be
credited to Executive's Account at such time or times such amount
would have been paid to Executive absent the provisions of this
Article III.
ARTICLE IV
COMPANY CONTRIBUTION AMOUNT
4.01 Company Discretionary Contribution. The provisions of
this Section 4.01 apply to any individual who is designated as
an Executive for a Year for purposes of a Company Discretionary
Contribution. The Board may make this designation at any time
during the Year. If the Board designates an individual as an
Executive for purposes of the Company Discretionary Contribution
for a Year, then the Board shall determine in its discretion the
amount of the Company Discretionary Contribution and the date of
such contribution. The Company Discretionary Contribution shall
be credited to the Executive's Account on such date.
4.02 Company Regular Contribution. The provisions of this
Section 4.02 apply to any Executive with respect to a Year for
which the Executive has been designated by the Board as an
Executive for purposes of the Annual Deferral Amount or the
Company Discretionary Contribution, or both. The Company Regular
Contribution for a Year with respect to an Executive who has been
designated by the Board as an Executive for purposes of the
Annual Deferral Amount, or both the Annual Deferral Amount and
the Company Discretionary Contribution, shall be the sum of (a)
the Matching Percentage times the Annual Deferral Amount credited
to the Executive's Account for such Year, (b) the Matching
Percentage times any Company Discretionary Contribution amount
credited to the Executive's Account for such Year, and (c) the
Matching Percentage times the Executive's Excess Compensation.
The Company Regular Contribution for a Year with respect to an
Executive who has been designated by the Board as an Executive
for purposes of the Company Discretionary Contribution only,
shall be the Executive's Account for such Year. Each time an
Annual Deferral Amount or a Company Discretionary Contribution
amount is credited to an Executive's Account, on that date or as
soon as administratively feasible after that date, a Company
Regular Contribution will also be credited to the Executive's
Account.
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ACCOUNT AND INVESTMENT RETURN
4.03 Investment Return. The Investment Return shall be
determined based upon the investment measure or measures selected
by the Executive in accordance with procedures established by the
Plan Administrator pursuant to Section 5.02. The Executive will
be permitted to elect investment measures only from those
investment measures made available to the Executive by the Plan
Administrator. One investment measure will be an investment
vehicle that is deemed to earn a rate of return equal to eight
percent (8%). At any time this is the only investment measure
then it will apply for purposes of determining the Investment
Return, and an election will not be made. Additional investment
measures may include a pooled account managed by a professional
manager and consisting primarily of equities and fixed income
investments in approximate percentages designated, or any other
investment measures selected by the Plan Administrator. The Plan
Administrator may delete any of the additional investment
measures at any time or times and substitute other investment
measures.
4.04 Investment Procedures. The Plan Administrator will
establish procedures, which may be changed from time to time, for
the selection by Executive of investment measures under this
Article V and for Executive's change of such selection.
4.05 Valuation Dates. As of each Valuation Date the Plan
Administrator will make the appropriate adjustments to the
Executive's Account for the Investment Return.
4.06 Vesting. The Executive shall be fully vested in his
Account at all times.
4.07 No Actual Investment. The method prescribed herein to
determine the Investment Return shall in no way require that the
Company make any investment of Company assets in any investment
nor entitle the Executive to any rights or interest in any
investment held by the Company outright or in trust.
ARTICLE V
DISTRIBUTION
5.01 Amount of Benefit. The amount of an Executive's benefit
hereunder at a Valuation Date shall be the Executive's Account
Balance.
5.02 Annual Distribution. On, or as near as administratively
feasible before, the last day of each Year, the Company shall
distribute the Executive's Account Balance determined as of such
date to the Executive; provided, however, if as of such date the
Plan Administrator reasonably anticipates that the Company's
deduction with respect to such payment to the Executive would be
limited or eliminated by the application of Code Section 162(m),
then such payment shall not be made except to the extent of a
distribution amount that the Plan Administrator reasonably
determines will not so limit or eliminate the Company's
deduction. Any payment made under this Section 6.02 will be a
lump sum payment.
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5.03 Mandatory Distribution Upon Change in Control. In the
event of a Change in Control, the Executive's Account Balance
will be distributed by the Company to the Executive in a lump sum
payment as soon as administratively feasible following the
occurrence of such Change in Control.
5.04 Mandatory Distribution Upon Separation from Service. In
the event of the Executive's Separation from Service, then unless
the Executive's Account Balance is to be distributed earlier
under another provision of this Article VI, the Executive's
Account Balance will be distributed by the Company to the
Executive in a lump sum payment as soon as administratively
feasible after the date that is six months after the Executive's
Separation from Service.
5.05 Death Prior to Payment of Benefits. In the event of an
Executive's death prior to the payment to the Executive of the
Executive's Account Balance, an amount equal to the Executive's
Account Balance shall be paid to the Executive's designated
Beneficiary in a lump sum payment as soon as administratively
feasible after the Executive's death.
5.06 Distribution Upon Unforeseeable Emergency. If the Plan
Administrator determines that an Executive has an Unforeseeable
Emergency, then upon the written request of the Executive the
Plan Administrator may direct the Company to distribute to
the Executive an amount that shall not exceed the amount
necessary to satisfy such emergency need plus amounts
necessary to pay taxes reasonably anticipated as a result of the
distribution, after taking into account the extent to which the
such emergency is or may be relieved through reimbursement or
compensation by insurance or otherwise, or by liquidation of the
Executive's assets, to the extent the liquidation of such assets
would not itself cause severe financial hardship.
ARTICLE VI
BENEFICIARY
6.01 Beneficiary Designation. An Executive shall designate a
Beneficiary to receive benefits under the Plan on an appropriate
form provided by the Plan Administrator. If more than one
Beneficiary is named, the share and/or precedence of each
Beneficiary shall be indicated. An Executive shall have the
right to change the Beneficiary by submitting to the Plan
Administrator a new Beneficiary designation form.
6.02 Proper Beneficiary. If the Plan Administrator has any
doubt as to the proper Beneficiary to receive payments hereunder,
the Plan Administrator shall have the right to direct the Company
to withhold such payments, and the Company may withhold such
payments, until the matter is finally adjudicated. However, any
payment made by the Company, in good faith and in accordance with
this Plan, shall fully discharge the Company from all further
obligations with respect to that payment.
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6.03 Minor or Incompetent Beneficiary. In making any
payments to or for the benefit of any minor or an incompetent
Beneficiary, the Company, in its sole and absolute discretion,
may make a distribution to a legal or natural guardian or other
relative of a minor or court-appointed representative of such
incompetent. Alternatively, it may make a payment to any
adult with whom the minor or incompetent temporarily or
permanently resides. The receipt by a guardian, court-appointed
representative, relative or other person shall be a complete
discharge to the Company. Neither the Company nor the Plan
Administrator shall have any responsibility to see to the proper
application of any payments so made.
6.04 No Beneficiary Designation. If an Executive fails to
designate a Beneficiary as provided in Section 7.01 above, or if
all designated Beneficiaries predecease the Executive or die
prior to complete distribution of the Executive's Account
Balance, then the Executive's designated Beneficiary shall be
deemed to be his surviving spouse. If the Executive has no
surviving spouse, the benefits remaining under the Plan to be
paid to a Beneficiary shall be payable to the Executive's estate.
ARTICLE VII
ADMINISTRATION OF THE PLAN
7.01 Finality of Determination. Subject to the Plan, the
Plan Administrator shall, from time to time, establish rules,
forms and procedures for the administration of the Plan. Except
as herein otherwise expressly provided, the Plan Administrator
shall have the exclusive right to interpret the Plan and to
decide any and all matters arising thereunder or in connection
with the administration of the Plan, and it shall endeavor to act,
whether by general rules or by particular decisions, so as
not to discriminate in favor of or against any person. The
decisions, actions and records of the Plan Administrator shall be
conclusive and binding upon the Company and all persons having or
claiming to have any right or interest in or under the Plan, and
cannot be overruled by a court of law unless arbitrary or
capricious.
7.02 Certificates and Reports. The members of the Board and
the officers and directors of the Company shall be entitled to
rely on all certificates and reports made by any duly appointed
accountants, and on all opinions given by any duly appointed
legal counsel, which legal counsel may be counsel for the
Company.
7.03 Indemnification and Exculpation. The Company shall
indemnify and hold harmless any person or entity designated to
act as the Plan Administrator or its designee and each current
and former member of the Board against any and all expenses and
liabilities (to the extent not indemnified under any liability
insurance contract or other indemnification agreement) which the
person incurs on account of any act or failure to act in
connection with the good faith administration of the Plan.
Expenses against which the Plan Administrator, its designee or a
member of the Board shall be indemnified hereunder shall include,
without limitation, the amount of any settlement or judgment,
costs, counsel fees, and related charges reasonably incurred in
connection with a claim asserted, or a proceeding brought or
settlement thereof. The foregoing right of indemnification shall
be in addition to any other rights to which the Plan
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Administrator, its designee or such member of the Board may be
entitled as a matter of law, but shall be conditioned upon the
person's notifying the Company of the claim of liability within
sixty (60) days of the notice of that claim and offering the
Company the right to participate in and control the settlement
and defense of the claim.
7.04 Expenses. The expenses of administering the Plan shall
be borne by the Company.
7.05 FICA and Other Taxes. The Company is authorized to
withhold from the Executive's Compensation, the Executive's share
of FICA and other employment taxes attributable to any Annual
Deferral Amount or Company Discretionary Amount in accordance
with the Treasury Regulations under Section 3121(v) of the Code.
ARTICLE VIII
CLAIMS PROCEDURE
8.01 Written Claim. Benefits shall be paid in accordance
with the provisions of this Plan. The Executive, or a
designated recipient or any other person claiming through the
Executive may make a written request for benefits under this Plan.
Any such claim shall be mailed or delivered to the Plan
Administrator. Such claim shall be reviewed by the Plan
Administrator or a delegate.
8.02 Denied Claim. If the claim is denied, in full or in
part, the Plan Administrator shall provide a written notice
within ninety (90) days setting forth the specific reasons for
denial, and any additional material or information necessary to
perfect the claim, and an explanation of why such material or
information is necessary, and appropriate information and
explanation of the steps to be taken if a review of the denial is
desired.
8.03 Review Procedure. If the claim is denied and a review
is desired, the Executive (or Beneficiary) shall notify the Plan
Administrator in writing within sixty (60) days after receipt of
the written notice of denial. In requesting a review, the
Executive or Beneficiary may request a review of pertinent
documents with regard to the benefits created under this
agreement, may submit any written issues and comments, may
request an extension of time for such written submission of
issues and comments, and may request that a hearing be held, but
the decision to hold a hearing shall be within the sole
discretion of the Plan Administrator.
8.04 Plan Administrator Review. The decision on the review
of the denied claim shall be rendered by the Plan Administrator
within sixty (60) days after the receipt of the request for
review (if no hearing is held) or within sixty (60) days after
the hearing if one is held. The decision shall be written and
shall state the specific reasons for the decision including
reference to specific provisions of this Plan on which the
decision is based.
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ARTICLE IX
NATURE OF COMPANY'S OBLIGATION
9.01 Company's Obligation. The Company's obligations under
this Plan shall be an unfunded and unsecured promise to pay.
The Company shall not be obligated under any circumstances to
fund its obligations under this Plan.
9.02 Creditor Status. Any assets which the Company may
acquire or set aside to help cover its financial liabilities
under the Plan are and must remain general assets of the Company
subject to the claims of its creditors. Neither the Company nor
this Plan gives an Executive or Beneficiary any beneficial
ownership interest in any asset of the Company. All rights of
ownership in any such assets are and remain in the Company. All
Plan Executives and Beneficiaries shall be unsecured general
creditors of the Company.
ARTICLE X
MISCELLANEOUS
10.01 Written Notice. Any notice given under the Plan shall
be in writing and shall be mailed by United States mail, postage
prepaid. If notice is to be given to the Company, such notice
shall be addressed to the Plan Administrator at Seaboard
Corporation. If notice is to be given to the Executive, such
notice shall be sent to the Executive's last known address.
10.02 Change of Address. Any Executive may, from time to
time, change the address to which notices shall be mailed by
giving written notice of such new address.
10.03 Merger, Consolidation or Acquisition. The Plan shall
be binding upon the Company, its assigns, and any successor to
the Company which shall succeed to substantially all of its
assets and business through merger, acquisition or consolidation,
and upon an Executive, a Beneficiary, assigns, heirs, executors
and administrators.
10.04 Amendment and Termination. The Company retains the
sole and unilateral right to terminate, amend, modify, or
supplement this Plan, in whole or part, at any time. However, no
Company action under this right shall reduce the Account of any
Executive or Beneficiary (other than a reduction attributable to
Investment Return), and no Company action shall accelerate the
time of payment of the Executive's Account.
10.05 Employment. This Plan does not provide a contract of
employment between the Company and the Executive, and the Company
reserves the right to terminate the Executive's employment for
any reason, at any time, notwithstanding the existence of this
Plan.
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10.06 Non-transferability. Except insofar as required or
prohibited by applicable law, no sale, transfer, alienation,
assignment, pledge, collateralization or attachment of any
benefits under this Plan shall be valid or recognized by the
Company. Neither the Executive or designated Beneficiary shall
have any power to hypothecate, mortgage, commute, modify, or
otherwise encumber in advance of any of the benefits payable
hereunder, nor shall any of said benefits be subject to seizure
for the payment of any debts, judgments, alimony, or maintenance,
owed by the Executive or Beneficiary, or be transferable by
operation of law in the event of bankruptcy, insolvency, or
otherwise.
10.07 Tax Withholding. The Company may withhold from a
payment any federal, state, or local taxes required by law to be
withheld with respect to such payment and such sum as the Company
may reasonably estimate as necessary to cover any taxes for which
the Company may be liable and which may be assessed with regard
to such payment.
10.08 Successors. The provisions of this Plan shall bind
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
10.09 Applicable Law. This Plan shall be governed by the
laws of the State of Kansas to the extent not pre-empted by
federal law.
10.10 Gender and Number. Wherever the context so requires,
masculine pronouns include the feminine and singular words shall
include the plural.
10.11 Titles. Titles of the Articles of this Plan are
included for ease of reference only and are not to be used for
the purpose of construing any portion or provision of this Plan
document.
IN WITNESS WHEREOF, the Company has caused this instrument
to be executed by its duly authorized officer on this 29th day
of December, 2005.
SEABOARD CORPORATION
By /s/ Robert L. Steer
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