ARTICLE - INTRODUCTION
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1.1 Name of Plan.
Service America Corporation (the "Company") hereby adopts the Service
America Corporation Deferred Compensation Plan (the "Plan").
1.2 Purposes of Plan.
The purposes of the Plan are in provide certain eligible employees of the
Company the opportunity to defer elements of their compensation which might
not otherwise be deferrable under other Company plans, including the
Service America Corporation Retirement and Savings Plan (the "Savings
Plan") and to receive the benefit of additions to their deferral comparable
to those obtainable under the Savings Plan In the absence of certain
restrictions and limitations in the Internal Revenue Code.
1.3 "Top Hat" Pension Benefit Plan.
The Plan is an "employee pension benefit plan" within the meaning of ERISA.
However, the Plan is unfunded and maintained for a select group of
management or highly compensated employees and, therefore, it is intended
that the Plan will be exempt from Parts 2, 3 and 4 of Title 1 of ERISA. The
Plan is not intended to qualify under Code section 401(a).
1.4 Funding.
The Plan is unfunded. All benefits will be paid from the general assets of
the Company.
1.5 Effective Date.
The Plan is effective as of February 9, 1999.
1.6 Administration.
The Plan shall be administered by the Committee.
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ARTICLE - DEFINITIONS AND CONSTRUCTION
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2.1 Definitions.
For purposes of the Plan, the following words and phrases shall have the
respective meanings set forth below, unless their context clearly requires
a different meaning:
(a) "Account" means the bookkeeping account maintained by the Company on
behalf of each Participant pursuant to Article VI that is credited
with Base Salary Deferrals, Bonus Deferrals and Matching Contributions
made by the Company on behalf of each Participant pursuant to Article
IV, and the earnings and losses on such amounts as determined in
accordance with Article V. As of any Valuation Date, a Participant's
benefit under the Plan shall be equal to the amount credited to his
Account as of such date.
(b) "Base Salary" means the base rate of cash compensation paid by the
Company to or for the benefit of a Participant for services rendered
or labor performed while a Participant, including base pay a
Participant could have received in cash in lieu of (A) deferrals
pursuant to Section 4.1 and (B) contributions made on his behalf to
any qualified plan maintained by the Company or to any cafeteria plan
under Section 125 of the Code maintained by the Company.
(c) "Base Salary Deferral" means the amount of a Participant's Base Salary
which the Participant elects to have withheld on a pre-tax basis from
his Base Salary and credited to his Account pursuant to Section 4.1.
(d) "Beneficiary" means the person or persons designated by the
Participant in accordance with Section 7.4.
(e) "Bonus Compensation" means the amount awarded to a Participant for a
Plan Year under any bonus plan maintained by the Company.
(f) "Bonus Deferral" means the amount of a Participant's Bonus
Compensation which the Participant elects to have withheld on a
pre-tax basis from his Bonus Compensation and credited to his account
pursuant to Section 4.1
(g) "Change in Control" means the happening of any of the following
events;
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(i) An acquisition by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (a
"Person") of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of
either (1) the then outstanding shares of common stock (the
"Outstanding Common Stock") of the Company, Volume Services
America, Inc., the company's immediate parent, or Volume Services
America Holdings, Inc., the company's ultimate parent
(collectively "The Affiliated Companies") or (2) the combined
voting power of the then outstanding voting securities entitled
to vote generally in the election of directors (the "Outstanding
Voting Securities of any of The Affiliated Companies"): provided,
however, that the following acquisitions shall not constitute a
Change of Control:
(A) any acquisition directly from any of The Affiliated Companies
(excluding an acquisition by virtue of the exercise of a
conversion privilege), (B) any acquisition by any of The
Affiliated Companies, (C) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by any of The
Affiliated Companies or (D) any acquisition of any of The
Affiliated Companies by any corporation pursuant to a
reorganization, merger or consolidation, if, following such
reorganization, merger or consolidation, the conditions described
in clauses (1), (2) and (3) of subsection (iii) of this Section
2.1 (e) are satisfied; or
(ii) Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to continue at least a
majority of the Board; provided, however, that any individual
becoming a director subsequent to the date hereof whose election
or nomination for election by any of The Affiliated Companies'
shareholders, was approved, by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the
Incumbent Board but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result
of either an actual or threatened election contest (as such terms
are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the
Board; or
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(iii) Approval by the shareholders of any of The Affiliated Companies
of a reorganization, merger or consolidation, in each case,
unless, following such reorganization, merger or consolidation,
(1) all or substantially all of the individuals and entities who
were beneficial owners, respectively, of the Outstanding Common
Stock and Outstanding Voting Securities immediately prior to such
reorganization, merger or consolidation beneficially own,
directly or indirectly, more than 50% of, respectively, the then
outstanding shares of common stock and the combined voting power
of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of
the corporation resulting from such reorganization, merger or
consolidation of the outstanding Common Stock and Outstanding
Voting Securities, as the case may be, (2) no Person, excluding
any of The Affiliated Companies and any employee benefit plan (or
related trust) thereof, or of the corporation resulting from such
reorganization, merger or consolidation and any Person
beneficially owning immediately prior to such reorganization,
merger or consolidation, directly or indirectly, 20% or more of
the Outstanding Common Stock or Outstanding Voting Securities, as
the case may be, beneficially owns, directly or indirectly, 20%
or more of. respectively, the then outstanding shares of common
stock of the corporation resulting from such reorganization,
merger or consolidation or the combined voting power of the then
outstanding voting securities of such corporation and (3) at
least a majority of the members of the board of directors of the
corporation resulting from such reorganization, merger or
consolidation were members of the Incumbent Board at the time of
the execution of the initial agreement providing for such
reorganization, merger of consolidation; or
(iv) The approval by the shareholders of any of The Affiliated
Companies of (1) a complete liquidation or dissolution of any of
The Affiliated Companies or (2) the sale or other disposition of
all or substantially all of the assets of any of The Affiliated
Companies, excluding however, such a sale or other disposition to
a corporation, with respect to which following such sale or other
disposition, (A) more than 60% of, respectively, the outstanding
shares of common stock of such corporation and the combined
voting power of the outstanding voting securities of such
corporation entitled to vote generally in the election of
directors will be beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were
the
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beneficial owners, respectively, of the Outstanding Common Stock
and Outstanding Voting Securities immediately prior to such sale
or other disposition in substantially the same proportions as
their ownership, immediately prior to such sale or other
disposition, of the Outstanding Common Stock and Outstanding
Voting Securities, as the case may be, (B) no Person, other than
any of The Affiliated Companies and any employee benefit plan (or
related trust) thereof, or of such corporation and any Person
beneficially owning, immediately prior to such sale or other
disposition, 20% or more of the Outstanding Common Stock or
Outstanding Voting Securities, as the case may be, then
beneficially owns, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally
in the election of directors and (C) individuals who were members
of the Incumbent Board will constitute at least a majority of the
members of the board of directors of such corporation.
(h) "Change in Financial Condition" means the date of determination by the
Committee that the Company's financial condition has materially
deteriorated or means the date the Company is informed that its bank
line of credit has been canceled.
(i) "Code" means the Internal Revenue Code of 1986, as amended.
(j) "Committee" means the administrative committee appointed by the Board
of Directors (or the Compensation Committee thereof if such Committee
is established and in existence) to administer the Plan in accordance
with Article VIII.
(k) "Company" means Service America Corporation and any successor thereto.
(l) [Reserved]
(m) "Deferral Period" means the period of time for which a Participant
elects to defer receipt of the Base Salary Deferrals, Bonus Deferrals
and Matching Contributions credited to such Participant's Account and
shall be either the Retirement Date, a period of years to a Specific
Future Year as specified in Section 5.2 or upon a Change in Control.
Deferral Periods shall be measured on the basis of Plan Years,
beginning with the Plan Year
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that commences immediately following the Plan Year for which the
applicable Base Salary Deferrals, Bonus Deferrals and/or Matching
Contributions are credited to the Participant's Account.
(n) "Deferred Compensation Agreement" means the written agreement
(regardless of how they may be titled) as prescribed by the Committee
and entered into between the Company and a Participant pursuant to
which the Participant elects the amount of his Base Salary and/or his
Bonus Compensation to be deferred into the Plan, and the form of
payment for such amounts, the Deferral Period and the deemed
investment.
(o) "Directors" means the Board of Directors of the Company.
(p) "Effective Date" means February 9, 1999.
(q) "Employee" means any common-law employee of the Company.
(r) "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
(s) "Matching Contribution" means the amount, as determined by the Company
on an annual basis, credited by the Company to the Account of each
Participant based on such Participant's Base Salary Deferrals.
(t) "Participant" means each Employee who has been selected for
participation in the Plan and who has become a Participant pursuant to
Article III.
(u) "Plan" means the Service America Corporation Deferred Compensation
Plan, as amended from time to time.
(v) "Plan Year" means the twelve consecutive month period commencing
January 1 of each year ending on December 31.
(w) "Retirement Date" means the date the Participant is eligible for and
retires under any qualified retirement plan maintained by the Company.
(x) "Savings Plan" means the Service America Corporation Retirement and
Savings Plan.
(y) "Specific Future Year" means a calendar year in the future voluntarily
elected by a participant to begin distribution of Base Salary
Deferrals,
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Bonus Deferrals and Matching Contributions, limited only by the
minimum and maximum Deferral Periods.
(z) "Valuation Date" means the last business day of each calendar month
and each special valuation date designated by the Committee.
2.2 Number and Gender.
Wherever appropriate herein, words used in the singular shall be considered
to include the plural and words used in the plural shall be considered to
include the singular. The masculine gender, where appearing in the Plan,
shall be deemed to include the feminine gender.
2.3 Headings.
The headings of Articles and Sections herein are included solely for
convenience, and if there is any conflict between such headings and the
text of the Plan, the text shall control.
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ARTICLE - PARTICIPATION AND ELIGIBILITY
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3.1 Participation.
Participants in the Plan are those employees who are a select group of
highly compensated or management Employees of the Company and selected by
the Committee, in its sole discretion, as Participants. The Committee shall
notify each Participant of his selection as a Participant. Subject to the
provisions of Section 3.3, a Participant shall remain eligible to continue
participation in the Plan for each Plan Year following his initial year of
participation in the Plan.
3.2 Commencement of Participation.
An Employee shall become a Participant effective as of the date the
Committee determines, which date shall be on or after the date his Deferred
Compensation Agreement becomes effective.
3.3 Cessation of Active Participation.
Notwithstanding any provision herein to the contrary, an individual who has
become a Participant in the Plan shall cease to be a Participant hereunder
effective as of any date designated by the Committee. Any such Committee
action shall be communicated to such Participant prior to the effective
date of such action.
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ARTICLE - DEFERRALS & MATCHING CONTRIBUTIONS
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4.1 Deferrals by Participants.
Before the first day of each Plan Year (or the remaining portion thereof
for an Employee who commences participation in the Plan other than on the
first day of a Plan Year), a Participant may file with the Committee a
Deferred Compensation Agreement pursuant to which such Participant elects
to make Base Salary Deferrals and/or Bonus Deferrals. Any such Participant
election shall be subject to any maximum or minimum percentage or dollar
amount limitations and to any other rules prescribed by the Committee in
its sole discretion. Base Salary Deferrals will be credited to the Account
of each Participant as of the last day of each calendar month, provided
that such Participant is an Employee on the last day of such calendar
month. A Participant whose employment terminates during the calendar month
shall be paid the amount of his Bass Salary Deferrals for such month in
cash. Bonus Compensation Deferrals will be credited to the account of each
Participant as of the last day of the month in which such Bonus
Compensation otherwise would have been paid to the Participant in cash
provided the Participant is an Employee on the last day of such month. A
Participant whose employment terminates during the calendar month in which
his bonus compensation would have been paid to him in cash will be paid his
bonus deferral in cash.
4.2 Effective Date of Deferred Compensation Agreement.
A Participant's initial Deferred Compensation Agreement shall be effective
as of the first payroll period after the date the Participant commences
participation in the Plan. Each subsequent Deferred Compensation Agreement
shall become effective on the first day of the Plan Year to which it
relates. If a Participant fails to complete a Deferred Compensation
Agreement on or before the date the Participant commences participation in
the Plan or the first day of any Plan Year, the Participant shall be deemed
to have elected not to make Base Salary Deferrals and/or Bonus Compensation
Deferrals for such Plan Year (or remaining portion thereof if the
Participant enters the Plan other than on the first day of a Plan Year).
4.3 Modification or Revocation of Election by Participant.
A Participant may not change the amount of his Base Salary or Bonus
Deferrals during a Plan Year. However, a Participant may discontinue a Base
Salary Deferral election at any time, by filing on such forms and subject
to such limitations and restrictions as the committee may prescribe in its
discretion, a revised Deferred Compensation Agreement with the Committee.
If approved by
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the Committee, revocation shall take effect as of the first payroll period
next following his filing. If a Participant discontinues a Base Salary
Deferral election during a Plan Year, he will not be permitted to elect to
make Base Salary Deferrals again until the next Plan Year. A Participant
may discontinue his Bonus Compensation Deferral only if approved by the
Committee following a showing of Financial Hardship. Under no circumstances
may a Participant's Deferred Compensation Agreement be amended, modified or
revoked retroactively.
4.4 Matching Contributions.
The Committee, in its sole discretion may provide for a Company Match
Contribution on any portion of the amount deferred. Included in the
Committee's discretion is the ability to name specific individuals to whom
a match applies and the amount and timing of that match.
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ARTICLE - VESTING, DEFERRAL PERIODS AND
EARNINGS ELECTION
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5.1 Vesting.
A Participant shall be 100% vested in his Account, including Matching
Contributions, at all times.
5.2 Deferral Periods.
A Deferral Period shall, at the Participant's election, be until (i)
Retirement Date, or (ii) a Specific Future Year and upon (iii) a Change in
Control or Change in Financial Condition. In the case of an election to
defer until a Specific Future Year, the Deferral Period must be for any
period of at least three (3) years or more, but may not end later than the
year in which the Participant attains age 70, unless a Participant is over
age 55 as of the date such Deferred Compensation Agreement is made with
respect to such amount in which case the Deferral Period need only be for
one (1) calendar tax year. A Participant must specify on the Deferred
Compensation Agreement the Deferral Period for the Base Salary Deferrals,
Bonus Compensation Deferrals and Matching Contributions to be made to the
Plan for the Plan Year (or the remaining portion thereof for a Participant
who enters the Plan other that on the first day of a Plan Year) to which
the Deferred Compensation Agreement relates, subject to certain rules as
determined by the Committee from time to time. In the event a Participant
does not elect a Deferral Period for any such Base Salary Deferrals and
Matching Contributions for a Plan Year, such Participant shall be deemed to
have elected a Deferral Period of three (3) years.
5.3 Earnings Elections.
Amounts credited to a Participants' Account shall be credited with earnings
and losses based on hypothetical investment directions made by the
Participant, in accordance with investment deferral crediting options and
procedures adopted by the Committee from time to time. The Company
specifically retains the right in its sole discretion to change the
investment deferral crediting options and procedures. Any amounts credited
to a Participant's Account with respect to which a Participant does not
provide investment direction shall be credited with earnings in an amount
determined by the Committee in its sole discretion. A Participant's Account
shall be adjusted as of each Valuation Date to reflect investment gains and
losses.
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ARTICLE - ACCOUNTS
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6.1 Establishment of Bookkeeping Accounts.
A separate bookkeeping account shall be maintained for each Participant. Such
account shall be credited with the Base Salary Deferrals and/or Bonus
Compensation Deferrals made by the Participant pursuant to Section 4.1, and
Matching Contributions made by the Company pursuant to Section 4.4 and
credited (or charged, as the case may be) with the hypothetical investment
results determined pursuant to Section 5.3.
6.2 Subaccounts.
Within each Participant's bookkeeping account, separate subaccounts shall
be maintained to the extent necessary for the administration of the Plan.
For example, it may be necessary to maintain separate subaccounts where the
Participant has specified different Deferral Periods, methods of payment or
investment directions with respect to his Base Salary Deferrals, Bonus
Compensation Deferrals and Matching Contributions for different Plan Years.
6.3 Hypothetical Nature of Accounts.
The account established under this Article VI shall be hypothetical in
nature and shall be maintained for bookkeeping purposes only so that
earnings and losses on the Base Salary Deferrals, Bonus Compensation
Deferrals and Matching Contributions made to the Plan can be credited (or
charged, as the case may be). Neither the Plan nor any of the accounts (or
subaccounts) established hereunder shall hold any actual funds or assets.
The right of any person to receive one or more payments under the Plan
shall be an unsecured claim against the general assets of the Company. Any
liability of the Company to any Participant, former Participant or
Beneficiary with respect to a right to payment shall be based solely upon
contractual obligations created by the Plan. Neither the Company, the
Directors, nor any other person shall be deemed to be a trustee of any
amounts to be paid under the Plan. Nothing contained in the Plan, and no
action taken pursuant to its provisions, shall create or be construed to
create a trust of any kind, or a fiduciary relationship, between the
Company and a Participant or any other Person.
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ARTICLE - PAYMENT OF ACCOUNT
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7.1 Timing of Distribution of Benefits.
Distribution of Base Salary Deferrals, Bonus Compensation Deferrals and
Matching Contributions to a Participant shall be made as soon as
practicable following the date the Deferral Period for such amounts ends.
If the Participant elects to receive a distribution in the event of a
Change in Control or Change in Financial Condition, distribution shall be
made within 45 days of the Change in Control or Change in Financial
Condition. Notwithstanding the foregoing, the Participant's entire Account
shall be distributed to him (or his Beneficiary in the event of his death)
in five (5) annual installments if the account balance is $200,000 or
greater following the earlier to occur of the following: (i) the
Participant's death; (ii) the Participant's permanent disability (as
defined in the Company's long-term disability program); or (iii) the
Participant's termination of employment. If the Participant's account
balance is less than $200,000, the account balance for subsections 7.1(i),
(ii) or (iii) will be paid as a lump sum. This distribution may be
accelerated, including a lump sum, based upon a showing of severe financial
hardship in accordance with Section 7.6 by the Participant or his
beneficiary.
7.2 Adjustment for Investment Gains and Losses Upon a Distribution.
Upon a distribution pursuant to this Article VII, the balance of a
Participant's Account shall be determined as of the Valuation Date
immediately preceding We date of the distribution to be made and shall be
adjusted for investment gains and losses which have accrued to the date of
distribution but which have not been credited to his Account.
7.3 Form of Payment or Payments.
Base Salary Deferrals, Bonus Compensation Deferrals and Matching
Contributions shall be distributed in accordance with the form of payment
elected by the Participant on the Deferred Compensation Agreement to which
such amounts relate. The form of payment with respect to amounts and the
earnings credited thereon may be in any of the following forms:
(a) A lump sum; or
(b) Installment payments for a period not to exceed fifteen years.
Installment payments shall be paid annually on the first business day of
January of each Plan Year or quarterly on the first business day of each
calendar quarter as
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elected by the Participant. Each installment payment shall be determined by
multiplying the amounts to be distributed by a fraction, the numerator of
which is one and the denominator of which is the number of remaining
installment payments to be mode to Participant. Anything contained herein
to the contrary notwithstanding, total distribution of a Participant's
Account must be made by the date such Participant attains age 85. In the
tax year prior to the year in which a distribution of a Participant's
Account is scheduled to begin distribution (but no less than 60 days prior
to the distribution date in all events), a Participant may request a change
in form of payment which may be approved or disapproved by the Committee in
its sole discretion.
7.4 Designation of Beneficiaries.
Each Participant shall have the right to designate the beneficiary or
beneficiaries to receive payment of his benefit in the event of his death.
A beneficiary designation shall be made by executing the beneficiary
designation form prescribed by the Committee and filing the same with the
Committee. Any such designation may be changed at any time by execution of
a new designation in accordance with this Section. If no such designation
is on file with the Committee at the time of the death of the Participant
or such designation is not effective for any reason as determined by the
Committee, then the designated beneficiary or beneficiaries to receive such
benefit shall be the Participant's surviving spouse, if any, or if none,
the Participant's executor or administrator, or his heirs at law if there
is no administration of such Participant's estate.
7.5 Unclaimed Benefits.
In the case of a benefit payable on behalf of such Participant, if the
committee is unable to locate the Participant or beneficiary to whom such
benefit is payable, such benefit may be forfeited to the Company, upon the
Committee's determination. Notwithstanding the foregoing, if subsequent to
any such forfeiture the Participant or beneficiary to whom such benefit is
payable makes a valid claim for such benefit, such forfeited benefit shall
be paid by the Company or restored to the Plan by the Company.
7.6 Hardship Withdrawals.
A Participant may apply in writing to the Committee for, and the Committee
may permit, a hardship withdrawal of all or any part of a Participant's
Account. If the Committee, in its sole discretion, determines that the
Participant has incurred a severe financial hardship resulting from a
sudden and unexpected illness or accident of the Participant or of a
dependent (as defined in section 152(a) of the
15
Code) of the Participant, loss of the Participant's property due to
casualty, or other similar extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the Participant, as
determined by the Committee, in its sole and absolute discretion. The
amount that may be withdrawn shall be limited to the amount reasonably
necessary to relieve the hardship or financial emergency upon which the
request is based, plus the federal and state taxes due on the withdrawal,
as determined by the Committee. The Committee may require a Participant who
requests a hardship withdrawal to submit such evidence as the Committee, in
its sole discretion, deems necessary or appropriate to substantiate the
circumstances upon which the request is based.
7. Other Withdrawals.
At any time, a Participant may request that 90% of all (or a designated
portion of) his account balance may be paid to him. The Committee in its
sole discretion may approve or disapprove such a request. If it approves
the request and a Participant receives a payment under this Section, he
shall (1) permanently forfeit the remaining 10% of the entire account
balance (or designated portion of it) and this amount shall not be paid to,
or in respect of, the Participant; and (2) the Participant shall lose the
right to participate in the Plan for 1 full Plan Year after receiving a
distribution under this Section.
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ARTICLE - ADMINISTRATION
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8.1 Committee.
The Plan shall be administered by a Committee appointed by the Board of
Directors (or the Compensation Committee thereof if such Committee is
established and in existence). The Committee shall be responsible for the
general operation and administration of the Plan and for carrying out the
provisions thereof. The Committee may delegate to others certain aspects of
the management and operational responsibilities of the Plan including the
employment of advisors and the delegation of ministerial duties to
qualified individuals, provided that such delegation is in writing.
8.2 General Powers of Administration.
The Committee shall have all powers necessary or appropriate to enable it
to carry out its administrative duties. Not in limitation, but in
application of the foregoing, the Committee shall have the duty and power
to interpret the Plan and determine all questions that may arise hereunder
as to the status and rights of Employees, Participants and Beneficiaries.
The Committee may exercise their powers hereby granted in its sole and
absolute discretion. No member of the committee shall be personally liable
for any actions taken by the Committee unless the member's action involves
willful misconduct.
8.3 Costs of Administration.
The costs of administering the Plan shall be borne by the Company unless
and until the Participant receives written notice of the imposition of such
administrative costs, with such costs to begin with the next Plan Year and
none may be assessed retroactively for prior Plan Years. Such costs shall
be charged against the Participant's Account and shall be uniform for all
Plan Participants. Such costs shall not exceed the standard rates for
similarly designed nonqualified plans under administration by high quality
third party administrators at the time such costs are initially imposed and
thereafter.
8.4 Indemnification of Committee.
The Company shall indemnify the members of the Committee against any and
all claims, losses, damages, expenses, including attorney's fees, incurred
by them, and any liability, including any amounts paid in settlement with
their approval, arising from their action or failure to act, except when
the same is judicially determined to be attributable to their gross
negligence or wilful misconduct.
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ARTICLE - DETERMINATION OF BENEFITS,
CLAIMS PROCEDURE AND ADMINISTRATION
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9.1 Claims.
A person who believes that he is being denied a benefit to which he is
entitled under the Plan (hereinafter referred to as "Claimant") may file a
written request for such benefit with the Committee, setting forth his
claim. The request must be addressed to the Committee at the Company at its
then principal place of business.
9.2 Claim Decision.
Upon receipt of a claim, the Company shall advise the Claimant that a reply
will be forthcoming within ninety (90) days and shall, in fact, deliver
such reply within such period. The Company may, however, extend the reply
period for an additional ninety (90) days for reasonable cause.
If the claim is denied in whole or in part, the Committee shall adopt a
written opinion, using language calculated to be understood by the
Claimant, setting forth:
(1) The specific reason or reasons for such denial;
(2) The specific reference to pertinent provisions of the Plan on which
such denial is based;
(3) A description of any additional material or information necessary for
the Claimant to perfect his claim and an explanation why such material
or such information is necessary;
(4) Appropriate information as to the steps to be taken if the Claimant
wishes to submit the claim for review; and
(5) The time limits for requesting a review under Section 9.3 and for
review under Section 9.4 hereof.
9.3 Request for Review.
Within sixty (60) days after the receipt by the Claimant of the written
opinion described above, the Claimant may request in writing that the
Company review the determination of the Committee. Such request must be
addressed to the Secretary of the Company, at its then principal place of
business. The Claimant or his duly authorized representative may, but need
not, review the pertinent
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documents and submit issues and comments in writing for consideration by
the Company. If the Claimant does not request a review of the Corporation's
determination by the Secretary of the Company within such sixty (60) day
period he shall be barred and estopped from challenging the Company's
determination.
9.4 Review of Decision.
Within sixty (60) days after the Secretary's receipt of a request for
review, such secretary will review the Company's determination. After
considering all materials presented by the Claimant, the Secretary will
render a written opinion, written in a manner calculated to be understood
by the Claimant setting forth the specific reasons for the decision and
containing specific references to the pertinent provisions of this
Agreement on which the decision is based. If special circumstances require
that the sixty (60) day time period be extended, the Secretary will so
notify the Claimant and will render the decision as soon as possible, but
no later than one hundred twenty (120) days after receipt of the request
for review.
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ARTICLE - MISCELLANEOUS
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10.1 Not Contract of Employment.
The adoption and maintenance of the Plan shall not be deemed to be a
contract between the Company and any person or to be consideration for the
employment of any person. Nothing herein contained shall be deemed to give
any person the right to be retained in the employ of the Company or to
restrict the right of the Company to discharge any person at any time nor
shall the Plan be deemed to give the Company the right to require any
person to remain in the employ of the Company or to restrict any person's
right to terminate his employment at any time.
10.2 Non-Assignability of Benefits.
No Participant, Beneficiary or distributee of benefits under the Plan
shall have any power or right to transfer, assign, anticipate, hypothecate
or otherwise encumber any part or all of the amounts payable hereunder,
which are expressly declared to be unassignable and non-transferable. Any
such attempted assignment or transfer shall be void. Except as provided by
applicable law, no amount payable hereunder shall, prior to actual payment
thereof, be subject to seizure by any creditor of any such Participant,
Beneficiary or other distributee for the payment of any debt judgment or
other obligation, by a proceeding at law or in equity, nor transferable by
operation of law in the event of the bankruptcy, insolvency or death of
such Participant, Beneficiary or other distributee hereunder.
10.3 Withholding.
All deferrals and payments provided for hereunder shall be subject to
applicable withholding and other deductions as shall be required of the
Company under any applicable local, state or federal law.
10.4 Amendment and Termination.
The Board of Directors (or the Compensation Committee thereof if such
Committee is established and in existence) may from time to time, in its
discretion, amend, in whole or in part, any or all of the provisions of
the Plan; provided, however, that no amendment may be made that would
impair the rights of a Participant with respect to amounts already
allocated to his Account. The Board of Directors (or the Compensation
Committee thereof if such Committee is established and in existence) may
terminate the Plan at any time. In the event that the Plan is terminated,
the balance in a Participant's Account shall be paid to such
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Participant or his Beneficiary in a single cash lump sum in full
satisfaction of all such Participant's or Beneficiary's benefits
hereunder. Any such amendment to or termination of the Plan shall be in
writing and signed by a member of the Board of Directors (or the
Compensation Committee thereof if such Committee is established and in
existence).
10.5 No Trust Created.
Nothing contained in this Agreement, and no action taken pursuant to its
provisions by either party hereto, shall create, nor be construed to
create, a trust of any kind or a fiduciary relationship between the
Company and the Participant, his beneficiary, or any other person.
10.6 Unsecured General Creditor Status of Employee.
The payments to Participant, his Beneficiary or any other distributee
hereunder shall be made from assets which shall continue, for all
purposes, to be a part of the general, unrestricted assets of the Company;
no person shall have nor acquire any interest in any such assets by virtue
of the provisions of this Agreement. The Company's obligation hereunder
shall be an unfunded and unsecured promise to pay money in the future. To
the extent that the Participant, Beneficiary or other distributee acquires
a right to receive payments from the Company under the provisions hereof,
such right shall be no greater than the right of any unsecured general
creditor of the Company; no such persons shall have nor require any legal
or equitable right, interest or claim in or to any property or assets of
the Company.
In the event that, in its discretion, the Company purchases an insurance
policy or policies insuring the life of the Employees (or any other
property) to allow the Company to recover the cost of providing the
benefit, in whole, or in part, hereunder, neither the Participant,
Beneficiary or other distributee shall have nor acquire any rights
whatsoever therein or in the proceeds therefrom. The Company shall be the
sole owner and beneficiary of any such policy or policies and, as such,
shall possess and, may exercise all incidents of ownership therein. No
such policy, policies or other property shall be held in any trust for a
Participant, Beneficiary or other distributee or held as collateral
security for any obligation of the Company hereunder. An Employee's
participation in the underwriting or other steps necessary to acquire such
policy or policies may be required by the Company and, if required. shall
not be a suggestion of any beneficial interest in such policy or policies
to a Participant.
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10.7 Severability.
If any provision of this Plan shall be held illegal or invalid for any
reason, said illegality or invalidity shall not affect the remaining
provisions hereof; instead, each provision shall be fully severable and
the Plan shall be construed and enforced as if said illegal or invalid
provision had never been included herein.
10.8 Governing Laws.
All provisions of the Plan shall be construed in accordance with the laws
of South Carolina except to the extent preempted by federal law.
10.9 Binding Effect.
This Plan shall be binding on each Participant and his heirs and legal
representatives and on the Company and its successors and assigns.
10.10 Entire Agreement.
This document and any amendments contain all the terms and provisions of
the Plan and shall constitute the entire Plan, any other alleged terms or
provisions being of no effect.
IN WITNESS WHEREOF, the Company has caused this Plan to be properly
executed on the 9th day of February, 1999.
SERVICE AMERICA CORPORATION
By:
--------------------------------------
Its: Corporate Vice President & Controller
(Corporate Seal)
Attested to:
- ----------------------------------
Secretary
SERVICE AMERICA CORPORATION
DEFERRED COMPENSATION PLAN
Effective as of February 9, 1999