SEABOARD CORPORATION
NONQUALIFIED DEFERRED COMPENSATION PLAN
Effective September 1, 2005
TABLE OF CONTENTS
ARTICLE I PURPOSE AND EFFECTIVE DATE 1
ARTICLE II DEFINITIONS 1
2.1 Account 1
2.2 Beneficiary 1
2.3 Board 1
2.4 Change in Control 1
2.5 Code 2
2.6 Committee 2
2.7 Company 2
2.8 Company Contribution 2
2.9 Compensation 2
2.10 Deferral 3
2.11 Deferral Election 3
2.12 Disability 3
2.13 Distribution Preference Election 3
2.14 Eligible Employee 3
2.15 Employee 3
2.16 Employer 3
2.17 Investment Options 3
2.18 Investment Return 4
2.19 Participant 4
2.20 Plan 4
2.21 Plan Year 4
2.22 Related Company 4
2.23 Separation from Service 4
2.24 Unforeseeable Financial Emergency 4
ARTICLE III PARTICIPATION 4
3.1 Participation for Deferrals. 4
3.2 Participation for Company Contributions. 4
ARTICLE IV DEFERRAL ELECTIONS 5
4.1 Method. 5
4.2 Irrevocable. 5
4.3 Compensation Deferred. 5
4.4 Deferral Election for First Year of Eligibility 5
4.5 Deferral Elections for Subsequent Years of
Eligibility 6
4.6 Minimum Annual Deferral 6
ARTICLE V COMPANY CONTRIBUTIONS 6
5.1 Participation 6
5.2 Amount 6
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ARTICLE VI ACCOUNTS AND INVESTMENT RETURN 6
6.1 Account Adjustments for Deferrals, Company
Contributions and Distributions 6
6.2 Account Adjustments for Investment Return 6
6.3 Vesting 7
ARTICLE VII DISTRIBUTIONS 7
7.1 Distribution Preference Elections. . 7
7.2 Subject to Mandatory Distribution Provisions. 7
7.3 Election Form. . 7
7.4 Time of Initial Election or Deemed Election. 7
7.5 Subsequent Distribution Preference Election 7
7.6 Mandatory Distribution Upon Separation from
Service 8
7.7 Mandatory Distribution Upon Change in Control 8
7.8 Mandatory Distribution Upon Disability 8
7.9 Mandatory Distribution Upon Death 8
7.10 Distribution Upon Unforeseeable Emergency 8
7.11 Adjustments to Accounts 9
ARTICLE VIII AMENDMENT OR TERMINATION 9
ARTICLE IX ADMINISTRATION 9
9.1 Committee 9
9.2 Delegation 9
9.3 Information to be Furnished 9
9.4 Committee's Decision Final 10
9.5 Remuneration and Expenses 10
9.6 Indemnification of Committee Member 10
9.7 Resignation or Removal of Committee Member 10
9.8 Interested Committee Member 10
ARTICLE X CLAIMS PROCEDURE 10
10.1 Claim 10
10.2 Denial of Claim 10
10.3 Review of Claim 10
10.4 Final Decision 11
ARTICLE XI MISCELLANEOUS 11
11.1 Captions 11
11.2 Company Action 11
11.3 Terms 11
11.4 Governing Law 11
11.5 Nonassignability 11
11.6 Tax Obligations 11
11.7 Not a Contract of Employment 12
11.8 Participant Cooperation 12
11.9 Successors 12
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11.10 Unsecured General Creditor 12
11.11 Validity 12
11.12 Waiver of Notice 12
APPENDIX A 13
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SEABOARD CORPORATION
NONQUALIFIED DEFERRED COMPENSATION PLAN
ARTICLE I
PURPOSE AND EFFECTIVE DATE
Seaboard Corporation adopted the Seaboard Corporation
Nonqualified Deferred Compensation Plan (the "Plan") effective
September 1, 2005. The purpose of the Plan is to aid in
attracting and retaining certain key employees of Seaboard
Corporation and participating affiliated companies by providing
to them an opportunity for supplemental retirement income. The
Plan is intended to be an arrangement that is unfunded and
maintained primarily for the purpose of providing supplemental
retirement income 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 is intended to
satisfy the requirements of Section 409A of the Internal Revenue
Code of 1986, as amended and the Plan shall be interpreted and
administered accordingly.
ARTICLE II
DEFINITIONS
For purposes of this Plan, the following words and phrases
shall have the meaning indicated, unless the context clearly
indicates otherwise:
2.1 Account means the bookkeeping account maintained by the
Committee for a Participant to which is credited Deferrals and
Company Contributions, and to which is charged distributions, and
which is adjusted to reflect earnings and losses, all as herein
provided. Any reference herein to a distribution of the
Participant's Account shall mean a payment of an amount equal to
the amount credited to the Participant's Account.
2.2 Beneficiary means one or more persons, trusts, estates
or other entities, designated by a Participant, in accordance
with procedures established by the Committee, to receive any
remaining balance in the Participant's Account upon the death of
the Participant. If no designation by the Participant is
effective, then the Participant's Beneficiary shall be the
Participant's surviving spouse if any, but if none then the
Participant's estate.
2.3 Board means the board of directors of Seaboard
Corporation.
2.4 Change in Control with respect to any Participant 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 corporation, or in the ownership of a
substantial portion of the assets of the corporation, 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 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 2.4, the attribution of ownership
rules under Code Section 318(a) shall apply.
2.5 Code means the Internal Revenue Code of 1986, any
amendments thereto, and any regulations issued thereunder.
2.6 Committee means the Committee, which may consist of one
person, designated from time to time by the Company to administer
the Plan.
2.7 Company means Seaboard Corporation, a Delaware
corporation, and any successors to the business of Seaboard
Corporation.
2.8 Company Contribution means the amount determined in
accordance with Article V that is an obligation of the Employer
and that is credited to a Participant's Account . The Company
Contribution may consist of a "matching contribution" and an
"excess contribution".
2.9 Compensation means the total salary and bonus payable
to the Participant from the Employer for the Participant's
services during a calendar year subject to the following
provisions of this Section 2.9. Compensation specifically
excludes: (a) reimbursements or other expense allowances, fringe
benefits (cash and noncash), moving expenses, and welfare
benefits; (b) any benefits accrued or paid under the Seaboard
Corporation Executive Retirement Plan, as amended; (c) 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; (d) any amount of taxable income recognized by the
Participant as a result of a distribution under this Plan; and
(e) any amount allocated or paid under the Seaboard Corporation
Executive Deferred Compensation Plan, as amended. For purposes of
determining the amount of the Company Contribution that is the
excess contribution for a particular Plan Year, Compensation does
not include the amount of a Participant's Deferral for such Plan
Year, but Compensation does include the amount of any elective
contributions made by the Participant during the same period as
such Plan Year pursuant to a plan maintained by the Company where
such amount is not
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includable in gross income due to the provisions of Code
Sections 125, 401(k) or 132(f). Notwithstanding the foregoing,
for the Plan Year beginning September 1, 2005, Compensation for
purposes of a Participant's Deferral Election and Deferrals,
shall include only bonus payable to the Participant for services
rendered on or after September 1, 2005, as determined under
Section 4.4, and Compensation for purposes of the Company
Contribution shall be based on the entire 2005 calendar year even
though the effective date of the Plan is September 1, 2005.
Compensation shall not include a Participant's Compensation
payable for any period prior to the time the Participant
becomes eligible to participate in the Retirement Savings Plan
for Seaboard Corporation, as amended.
2.10 Deferral means the portion of the salary or bonus
payable to a Participant that is deferred for a Plan Year
pursuant to a Deferral Election by the Participant and is
credited to the Participant's Account.
2.11 Deferral Election means an election made hereunder by a
Participant to defer salary or bonus payable to the Participant
and earned after the date of the Deferral Election as determined
hereunder.
2.12 Disability means a period in which the Participant is
(i) unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than 12
months or (ii) by reason of any medically determinable physical
or mental impairment which can be expected to result in death or
can be expected to last for a continuous period of not less than
12 months, receiving income replacement benefits for a period of
not less than 3 months under an accident and health plan
sponsored by the Company.
2.13 Distribution Preference Election means the election
made or deemed made by a Participant governing the time of
payment of benefits hereunder to the Participant.
2.14 Eligible Employee means an Employee who is a member of
a select group of management or highly compensated employees,
taking into account for this purpose all employees of all Related
Companies; however, an Employee who has been designated by the
Board as an Executive for purposes of the Annual Deferral Amount,
or for purposes of both the Annual Deferral Amount and the
Company Discretionary Contribution, under the Seaboard
Corporation Executive Deferred Compensation Plan, as amended, for
a year coinciding with a Plan Year under this Plan, shall not be
an Eligible Employee for such Plan Year.
2.15 Employee means any individual who is a salaried
employee of an Employer.
2.16 Employer means the Company and any of its subsidiaries
or affiliates that participate in this Plan with the consent of
the Company, and any successors to the business of any such
participating subsidiaries or affiliates. The subsidiaries or
affiliates participating in this Plan as of the effective date
are listed on Appendix A attached hereto.
2.17 Investment Options means the investment options
selected by the Committee from time to time among which a
Participant may direct the investment of his or her Account in
accordance with procedures established by the Committee.
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2.18 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%).
2.19 Investment Return means the amount of earnings,
gains or losses applicable to the Participant's Account as
measured by the Investment Options applicable pursuant to the
Participant's direction or as otherwise provided herein.
2.20 Participant means any Eligible Employee who is
designated as eligible to participate in the Plan for purposes of
Deferrals and who makes a Deferral Election as provided in
Section 3.1. Participant also means any Eligible Employee who
satisfies the requirements for participation for purposes of
Company Contributions as provided in Section 3.2. Participant
also means any individual for whom an Account is maintained
hereunder.
2.21 Plan means the Seaboard Corporation Nonqualified
Deferred Compensation Plan, as set forth herein and as from time
to time amended.
2.22 Plan Year means the 12-month period beginning January 1
and ending December 31; provided, however, that the first Plan
Year shall be September 1, 2005, through December 31, 2005.
Except with respect to the first Plan Year, the Plan Year shall
always coincide with the calendar year.
2.23 Related Company means any corporation (including the
Company) which is a member of a controlled group of corporations
(as defined in Code Section 414(b)) that includes the Company.
2.24 Separation from Service means a Participant's
separation from service with the Employer and all Related
Companies within the meaning of Code Section 409A.
2.25 Unforeseeable Emergency means an unanticipated
emergency that is caused by an event beyond the control of the
Participant that would result in severe financial hardship to the
Participant resulting from (i) a sudden and unexpected illness or
accident of the Participant or a dependent of the Participant,
(ii) a loss of the Participant's property due to casualty, or
(iii) such other extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the
Participant, all as determined in the sole discretion of the
Committee.
ARTICLE III
PARTICIPATION
3.1 Participation for Deferrals. The Committee will
designate those Eligible Employees who are eligible to make
Deferral Elections for a particular Plan Year. Such designation
will be by written communication to such Eligible Employees and
will be effective on the date of such written communication.
Once an Eligible Employee has been designated under this Section
3.1, he or she may make a Deferral Election for the first
Plan Year stated in such written designation and for each
subsequent Plan Year until the first to occur of (1) the
Participant's Separation from Service, or (2) a written notice
from the Committee delivered prior
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to the first day of the Plan Year for which it is effective
advising the Participant that he or she is no longer eligible
to make a Deferral Election.
3.2 Participation for Company Contributions. Any Eligible
Employee who has satisfied the requirements for eligibility to
participate in the Retirement Savings Plan for Seaboard
Corporation, as amended from time to time (the "401(k) Plan") for
a Plan Year and whose Compensation for a Plan Year is in excess
of the maximum amount of compensation determined pursuant to Code
Section 401(a) (17) that is permitted to be taken into account
under the 401(k) Plan for the plan year of the 401(k) Plan that
ends within such Plan Year, will be a Participant for purposes
of the Company Contribution for that Plan Year.
ARTICLE IV
DEFERRAL ELECTIONS
4.1 Method. A Deferral Election shall be made in writing on
a form provided by the Committee and shall be submitted to the
Committee in such manner as the Committee determines. A Deferral
Election will not be valid unless it is submitted to the
Committee in the manner required.
4.2 Irrevocable. A Deferral Election will become
irrevocable on the last day established by the Committee
(in accordance with the provisions hereunder) for submitting the
Deferral Election to the Committee; provided, however, in the
case of a Deferral Election that is submitted under Section 4.4
after the first day of a Plan Year, the Deferral Election shall
become irrevocable at the time the Deferral Election is submitted
to the Committee. Notwithstanding the preceding provisions of
this Section 4.2, a Deferral Election made by a Participant on or
before September 30, 2005 applicable for the Plan Year beginning
September 1, 2005 and ending December 31, 2005, may be cancelled
by the Committee or by the Participant, or the Participant may
reduce the amount of Compensation to be deferred pursuant to that
election, provided any such cancellation or reduction by the
Participant is submitted in writing by the Participant to the
Committee in such form as required by the Committee on or before
December 31, 2005. Any Compensation amount that ceases to be
subject to a Deferral Election under the preceding sentence of
this Section 4.2 must be paid to the Participant in such calendar
year as such amount would have become vested and been paid to the
Participant absent the Participant's initial Deferral Election
with respect to such amount.
4.3 Compensation Deferred. A Deferral Election shall apply
only to Compensation for services performed after the date the
Deferral Election becomes irrevocable as determined hereunder.
4.4 Deferral Election for First Year of Eligibility.
Subject to the last sentence of this Section 4.4, an Eligible
Employee who is designated under Section 3.1 in the first Plan
Year of the Plan, or an Eligible Employee who is designated under
Section 3.1 for the first time in a subsequent Plan Year, may
elect to make Deferrals provided he or she submits a Deferral
Election to the Committee by such time as the Committee
determines, but in no event later than 30 days after the date the
Eligible Employee first becomes eligible to participate for
Deferrals under Section 3.1. If a Participant makes a Deferral
Election under this Section 4.4 after the first day of a Plan
Year, and if the Deferral Election applies to a bonus payable to
the Participant, then
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the amount of the Participant's bonus that is deemed to be
payable for services performed after the Deferral Election shall
be determined by multiplying the total bonus payable by a
fraction, the denominator of which is the total number of days
in the performance period for which the bonus is payable, and the
numerator of which is the number of days remaining in such
performance period after the date the Participant's Deferral
Election becomes irrevocable. Notwithstanding the preceding
provisions of this Section 4.4, if at the time an Eligible
Employee becomes first eligible as a Participant for Deferrals
under Section 3.1, the Eligible Employee is or has been eligible
as a Participant for Company Contributions under Section 3.2, or
if the Eligible Employee then participates in any other
nonqualified deferred compensation plan of a Related Company that
is subject to Code Section 409A and that is an account balance
plan within the meaning of Code Section 409A, then the
Participant's Deferral Election will only be effective if it is
submitted to the Committee at the time provided in Section 4.5.
4.5 Deferral Elections for Subsequent Years of Eligibility.
A Participant's Deferral Election for a Plan Year subsequent to
the first Plan Year in which a Participant is eligible to make a
Deferral Election must be made at such time as the Committee
determines, but in no event later than the last day of the Plan
Year preceding the Plan Year for which the Deferral Election is
effective.
4.6 Minimum Annual Deferral. Notwithstanding the foregoing
provisions of this Article IV, a Participant may not make a
Deferral Election for a Plan year unless the Participant's
Deferral Election for such Plan Year provides for a Deferral
amount that is determined by the Committee to be at least
$10,000. Such determination will be made by the Committee prior
to the date the Deferral Election becomes irrevocable hereunder.
ARTICLE V
COMPANY CONTRIBUTIONS
5.1 Participation. As soon as administratively feasible,
a Company Contribution will be credited to the Accounts of those
Participants determined by the Committee under Section 3.2.
5.2 Amount. The amount of a Company Contribution credited
on behalf of a Participant for a Plan Year will equal the sum of
(a) the Matching Percentage times the Participant's Deferral for
such Plan Year, and (b) the Matching Percentage times the
Participant's Compensation for the Plan Year that is in excess of
the maximum amount of compensation determined pursuant to Code
Section 401(a)(17) that is permitted to be taken into account
under the 401(k) Plan for the plan year of the 401(k) Plan that
ends within such Plan Year.
ARTICLE VI
ACCOUNTS AND INVESTMENT RETURN
6.1 Account Adjustments for Deferrals, Company
Contributions and Distributions. All Deferrals of a Participant
with respect to a Plan Year will be credited to the
Participant's Account as soon as administratively feasible after
the date on which the Deferral would have been paid in cash
absent the Deferral Election applicable to such Deferral. All
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Company Contributions made on behalf of a Participant with
respect to a Plan Year will be credited to the Participant's
Account at such time or times as determined by the
Committee. Any distribution from a Participant's Account
will be charged to the Account as of the time of the distribution.
6.2 Account Adjustments for Investment Return. A
Participant's Account will be deemed invested in one or more
Investment Options as directed or deemed directed by the
Participant pursuant to procedures established by the Committee.
At such times as determined by the Committee, and at such time as
provided under Section 7.11, the Investment Return will be
credited (in the case of net earnings) or charged (in the case of
net losses) to the Participant's Account.
6.3 Vesting. A Participant will be fully vested in his or
her Account at all times.
ARTICLE VII
DISTRIBUTIONS
7.1 Distribution Preference Elections. A Participant shall
make, or be deemed to make, a separate Distribution Preference
Election with respect to each Plan Year. A Distribution
Preference Election will apply to the distribution of all
Deferrals and Company Contributions allocated to the
Participant's Account with respect to a Plan Year, as adjusted
thereafter for Investment Return. The Distribution Preference
Election will designate the date for the payment by the Employer
to the Participant of the amounts subject to the Distribution
Preference Election. Except as provided in Section 7.2, payment
by the Employer will be made on the date designated in the
applicable Distribution Preference Election or as soon as
administratively feasible following such date, but in no event
later than the time required for payment as of a designated date
under Code Section 409A. The form of payment will always be a
lump sum payment.
7.2 Subject to Mandatory Distribution Provisions. Any
Distribution Preference Election hereunder, whether an actual
election or a deemed election, shall be subject to the mandatory
distribution provisions of Sections 7.6, 7.7, 7.8 and 7.9.
7.3 Election Form. A Distribution Preference Election
(other than a deemed election) must be made in writing on a form
provided by the Committee and shall be submitted to the Committee
in such manner as the Committee determines. A Distribution
Preference Election will not be valid unless it is submitted to
the Committee in the manner required.
7.4 Time of Initial Election or Deemed Election. If a
Participant makes a Deferral Election for a Plan Year, then at
the time the Participant makes the Deferral Election the
Participant may also make a Distribution Preference Election. If
the Participant fails to make a Distribution Preference Election
at such time, or if the Participant does not make a Deferral
Election for a Plan Year but a Company Contribution is made on
behalf of the Participant for such Plan Year, then the
Participant shall be deemed to have made a Distribution
Preference Election applicable to all amounts allocated to the
Participant's Account for such Plan Year, as adjusted thereafter
for Investment Return, of a lump sum payment payable on the first
day of the fifth Plan Year following such Plan Year.
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7.5 Subsequent Distribution Preference Election. A
Participant may change any existing Distribution Preference
Election (whether it was made by the Participant or deemed made
by the Participant) by filing a subsequent Distribution
Preference Election with the Committee; provided, however, a
subsequent Distribution Preference Election will not be effective
unless it satisfies all of the following requirements:
(a) A subsequent Distribution Preference Election may
not take effect until at least twelve months after the date
on which it is filed by the Participant.
(b) A subsequent Distribution Preference Election may
not be filed less than twelve (12) months prior to the
designated distribution date under the existing Distribution
Preference Election.
(c) The payment that is subject to the subsequent
Distribution Preference Election may not be made earlier
than five (5) years after the designated distribution date
under the existing Distribution Preference Election.
A Participant may make one or more subsequent Distribution
Preference Elections without regard to the preceding requirements
of this Section 7.5 provided any such subsequent Distribution
Preference Election is made on or before December 31, 2006.
Notwithstanding the preceding sentence, a subsequent Distribution
Preference Election made in 2006 shall not apply to any amount
otherwise to be distributed in 2006, and shall not cause an
amount to be distributed in 2006 that would otherwise be
distributed in a later year.
7.6 Mandatory Distribution Upon Separation from Service. In
the event of a Participant's Separation from Service, then unless
the Participant's Account is to be distributed earlier under
another provision of this Article VII, the Participant's Account
will be distributed by the Employer to the Participant in a
lump sum payment as soon as administratively feasible after the
date that is six months after the Participant's Separation from
Service.
7.7 Mandatory Distribution Upon Change in Control. In the
event of a Change in Control, then unless the Participant's
Account is to be distributed earlier under another provision of
this Article VII, the Participant's Account will be distributed
by the Employer to the Participant in a lump sum payment as soon
as administratively feasible following the occurrence of such
Change of Control.
7.8 Mandatory Distribution Upon Disability. In the event of
the Disability of the Participant, then unless the Participant's
Account is to be distributed earlier under another provision of
this Article VII, the Participant's Account will be distributed
by the Employer to the Participant in a lump sum payment as soon
as administratively feasible following the determination of such
Disability.
7.9 Mandatory Distribution Upon Death. In the event of the
death of the Participant, then the Participant's Account will be
distributed by the Employer to the Participant's Beneficiary in a
lump sum payment as soon as administratively feasible following
the Participant's death.
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7.10 Distribution Upon Unforeseeable Emergency. If the
Committee determines that a Participant has an Unforeseeable
Emergency, then upon the written request of the Participant the
Committee may direct the Employer to distribute to the
Participant 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 Participant's
assets, to the extent the liquidation of such assets would not
itself cause severe financial hardship.
7.11 Adjustments to Accounts. At any time a Participant's
entire Account is to be distributed hereunder, the Participant's
Account shall be adjusted, as provided in Section 6.1 and Section
6.2, prior to the date of distribution and as near as
administratively feasible to the date of distribution.
ARTICLE VIII
AMENDMENT OR TERMINATION
The Board may, in its sole discretion, at any time and from
time to time, amend, in whole or in part, any of the provisions
of the Plan or may terminate it as a whole or with respect to any
Participant or group of Participants; provided, however, no
amendment or termination shall accelerate or postpone the time of
any distributions hereunder.
ARTICLE IX
ADMINISTRATION
9.1 Committee. The Board will appoint, or delegate the
appointment of, a Committee to administer the Plan. The
Committee will act by a majority of its members except to the
extent it has delegated responsibilities hereunder. The
Committee will have the following powers, rights and duties in
addition to those granted to 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.
(c) To construe and interpret the Plan in the Committee'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 Committee may decide.
(e) To direct all payments of benefits under the Plan.
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9.2 Delegation. In exercising its authority to control and
manage the operation and administration of the Plan, the
Committee may employ agents and counsel (who may also be employed
by the Company) and delegate to them such powers as the Committee
deems desirable.
9.3 Information to be Furnished. The Employer shall furnish
the Committee or its delegates such data and information as may
be required. The records of the Employer as to a Participant's
Separation from Service, Compensation, Beneficiary designation
and elections hereunder will be conclusive on all persons unless
determined to be incorrect.
9.4 Committee's Decision Final. Any interpretation of the
Plan and any decision on any matter within the discretion of the
Committee 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 Committee shall make such adjustment on
account thereof as it considers equitable and practicable.
9.5 Remuneration and Expenses. No remuneration shall be
paid to any Committee member for services hereunder. All
expenses of a Committee member incurred in the performance of the
administration of the Plan shall be reimbursed by the Company.
9.6 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.
9.7 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.
9.8 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 X
CLAIMS PROCEDURE
10.1 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.
10.2 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:
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(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.
10.3 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.
10.4 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 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 Terms. Where the context permits, words in the plural
shall include the singular, and words in the singular shall
include the plural.
11.4 Governing Law. Except to the extent governed by the
Employee Retirement Income Security Act of 1974, as amended, the
provisions of this Plan shall be construed and interpreted
according to the laws of the state of Kansas.
11.5 Nonassignability. Neither a Participant nor any other
person shall have any right to commute, sell, assign, transfer,
pledge, anticipate, mortgage or otherwise encumber, 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
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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.
11.6 Tax Obligations. The Employer will withhold from that
portion of the Participant's Compensation that is not being
deferred, in a manner determined by the Employer, the
Participant's share of FICA and other employment taxes on
Deferrals and Company Contributions. The Employer will withhold
from any payments made to a Participant under the Plan all
federal, state and local income, employment and other taxes
required to be withheld by the Employer in connection with such
payments, in amounts and in a manner to be determined in the sole
discretion of the Employer.
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11.7 Not a Contract of Employment. The terms and conditions
of this Plan shall not be deemed to constitute a contract of
employment between any Employer and any Participant or any
Eligible Employee. Such employment is hereby acknowledged to be
an "at will" employment relationship that can be terminated at
any time for any reason, or no reason, with or without cause, and
with or without notice, unless otherwise expressly provided in a
written employment agreement. Nothing in this Plan shall be
deemed to give a Participant the right to be retained in the
service of any Employer or to interfere with the right of an
Employer to discipline or discharge the Participant at any time.
11.8 Participant Cooperation. A Participant will cooperate
by furnishing any and all information requested in order to
facilitate the payment of benefits hereunder and such other
action as may be requested by the Committee or the Company or the
Employer.
11.9 Successors. The provisions of this Plan shall bind the
Company, the Employer and their 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 or the Employer, 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 any
Related 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 any Related Company's
assets shall be, and remain, the general, unpledged, assets of
the Related Company. The Employer's obligation under the Plan
shall be merely that of an unfunded and unsecured promise of the
Employer to pay money in the future. No Employer shall have any
obligation under this Plan with respect to individuals other than
that Employer'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.
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The Company hereby agrees to the provisions of this Plan,
and, in witness thereof, the Company causes this Plan to be,
executed on this 29th day of December, 2005.
SEABOARD CORPORATION
By: /s/ Robert L. Steer
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