EXHIBIT 10.27
NASH FINCH COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
As Adopted Effective January 1, 2000
NASH FINCH COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
TABLE OF CONTENTS
Page
----
ARTICLE 1 Description.............................................................1
1.1 Plan Name................................................................1
1.2 Plan Purpose.............................................................1
1.3 Plan Type................................................................1
ARTICLE 2 Participation...........................................................2
2.1 Eligibility..............................................................2
2.2 Condition of Participation...............................................2
2.3 Termination of Participation.............................................2
ARTICLE 3 Benefits................................................................3
3.1 Participant Accounts.....................................................3
3.2 Compensation Credits.....................................................3
3.3 Executive Incentive Bonus and Deferred Compensation Plan Interest........3
3.4 Earnings Credits.........................................................4
3.5 Vesting..................................................................4
ARTICLE 4 Distribution............................................................6
4.1 Distribution to Participant..............................................6
4.2 Distribution to Beneficiary..............................................8
4.3 Payment in Event of Incapacity...........................................9
ARTICLE 5 Source of Payments; Nature of Interest.................................10
5.1 Establishment of Trust..................................................10
5.2 Source of Payments......................................................10
5.3 Status of Plan..........................................................10
5.4 Non-assignability of Benefits...........................................11
ARTICLE 6 Adoption, Amendment, Termination.......................................12
6.1 Adoption................................................................12
6.2 Amendment...............................................................12
6.3 Termination of Participation............................................12
6.4 Termination.............................................................13
ARTICLE 7 Definitions, Construction and Interpretation...........................14
7.1 Account.................................................................14
7.2 Active Participant......................................................14
7.3 Administrator...........................................................14
7.4 Affiliate...............................................................14
7.5 Base Salary.............................................................14
7.6 Beneficiary.............................................................14
7.7 Board...................................................................14
7.8 Change in Control.......................................................14
7.9 Code....................................................................16
7.10 Company.................................................................16
7.11 Cross Reference.........................................................16
i
7.12 Disabled................................................................16
7.13 ERISA...................................................................16
7.14 Governing Law...........................................................16
7.15 Headings................................................................16
7.16 Number and Gender.......................................................16
7.17 Participant.............................................................17
7.18 Participating Employer..................................................17
7.19 Plan....................................................................17
7.20 Plan Rules..............................................................17
7.21 Plan Year...............................................................17
7.22 Termination of Employment...............................................17
7.23 Trust...................................................................17
7.24 Trustee.................................................................17
7.25 Year of Participation...................................................17
ARTICLE 8 Administration.........................................................19
8.1 Administrator...........................................................19
8.2 Plan Rules..............................................................19
8.3 Administrator's Discretion..............................................19
8.4 Specialist's Assistance.................................................19
8.5 Indemnification.........................................................19
8.6 Benefit Claim Procedure.................................................19
8.7 Limitations on Certain Actions..........................................20
ARTICLE 9 Miscellaneous..........................................................21
9.1 Withholding and Offsets.................................................21
9.2 Other Benefits..........................................................21
9.3 No Warranties Regarding Tax Treatment...................................21
9.4 No Employment Rights Created............................................21
9.5 Successors..............................................................21
ii
NASH FINCH COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
ARTICLE 1
DESCRIPTION
1.1 PLAN NAME. The name of the Plan is the "Nash Finch Company
Supplemental Executive Retirement Plan."
1.2 PLAN PURPOSE. The purpose of the Plan is to provide retirement income
to Participants to supplement amounts available from other sources.
1.3 PLAN TYPE. The Plan is an unfunded plan maintained primarily for the
purpose of providing deferred compensation for a select group of
management or highly compensated employees and, as such, is intended to
be exempt from the provisions of Parts 2, 3 and 4 of Subtitle B of
Title I of ERISA by operation of ERISA sections 201(2), 301(a)(3) and
401(a)(4), respectively. The Plan is also intended to be unfunded for
tax purposes. The Plan will be construed and administered in a manner
that is consistent with and gives effect to the foregoing.
1
ARTICLE 2
PARTICIPATION
2.1 ELIGIBILITY.
(A) To be eligible to have credits made to his or her Account
pursuant to Section 3.2 for a Plan Year, an individual must
(1) be a member of a select group of management or highly
compensated employees as determined by the Administrator and
(2) be selected by the Administrator for the Plan Year.
An individual's selection pursuant to clause (2) for a Plan Year
must be evidenced by a written notice from the Administrator to
the individual.
(B) The fact that an individual has been eligible to have credits
made to his or her Account pursuant to Section 3.2 with respect
to any particular Plan Year does not give the individual any
right to have such credits made to his or her Account with
respect to any other Plan Year.
2.2 CONDITION OF PARTICIPATION. As a condition of participation, each
Participant is bound by all the terms and conditions of the Plan and
the Plan Rules, and must furnish to the Administrator such pertinent
information, and execute such forms and other instruments, as the
Administrator or Plan Rules may require by such dates as the
Administrator or Plan Rules may establish.
2.3 TERMINATION OF PARTICIPATION. A Participant will cease to be a
Participant as of the later of the date on which (a) he or she ceases
to be an Active Participant or (b) his or her entire Account balance
has been distributed or forfeited.
2
ARTICLE 3
BENEFITS
3.1 PARTICIPANT ACCOUNTS.
(A) The Administrator will establish and maintain an Account for each
Participant to evidence amounts credited with respect to the
Participant pursuant to Section 3.2 and related earnings credits
pursuant to Section 3.4.
(B) For each Participant for whom a credit is made pursuant to
Section 3.3, the Administrator will establish and maintain a
separate Account to evidence the amount credited pursuant to
Section 3.3 and related earnings credits pursuant to Section 3.4.
3.2 COMPENSATION CREDITS.
(A) As of the close of the last day of each Plan Year, after the
earnings credit for the calendar quarter then ending pursuant to
Section 3.4, the Account of an Active Participant who satisfies
the conditions described in Subsection (B) for the Plan Year will
be credited with an amount equal to 20 percent of his or her Base
Salary for the Plan Year.
(B) To be eligible to have a credit made on his or her behalf for a
Plan Year, an Active Participant must be actively employed by, or
on an approved leave of absence from, an Affiliate on the last
day of the Plan Year. For this purpose, an Active Participant's
status as an employee of an Affiliate on the last day of the Plan
Year will be based on the Affiliate's classification on that day
without regard to any subsequent retroactive reclassification.
3.3 EXECUTIVE INCENTIVE BONUS AND DEFERRED COMPENSATION PLAN INTEREST.
(A) An Active Participant on January 1, 2000 may elect to have the
total share equivalents contingently credited to the Active
Participant as of December 31, 1999 under the Nash Finch Company
Executive Incentive Bonus and Deferred Compensation Plan (the
"Deferred Compensation Plan") converted to a cash equivalent and
credited to his or her Account as of January 1, 2000. The amount
credited to the Active Participant's Account pursuant to this
section will be the greater of (1) the amount at which the
Participant's total share equivalents as of December 31, 1999
were contingently credited to the Participant under the Deferred
Compensation Plan and (2) an amount equal to the product of (a)
the total share equivalents contingently credited to the
Participant under the Deferred Compensation Plan as of December
31, 1999 multiplied by (b) the average, rounded to the nearest
one-tenth of a cent ($.001), of the closing sales price per share
of common stock of the Company reported by the NASDAQ National
Market System, for the calendar quarter ending on December 31,
1999. For purposes of applying clause (b) of the prior sentence,
the closing sales price for any trading day for which there are
no reported sales of common stock of the Company will be deemed
to be the last previously reported closing sales price.
3
(B) An Active Participant's election pursuant to Subsection (A)
must be (1) in writing on a form provided by the Administrator
and (2) received by the Administrator not later than a due
date specified by the Administrator. The election may be
revoked on or before the due date specified by the
Administrator but may not be revoked after the due date.
(C) An Active Participant whose Account is credited pursuant to
this section will cease to have any interest arising under or
in connection with the Deferred Compensation Plan effective as
of January 1, 2000 and the Participant's rights with respect
to his or her Account will, on and after January 1, 2000, be
determined solely in accordance with the terms of this Plan.
3.4 EARNINGS CREDITS. As of the last day of each calendar quarter, the
Administrator will, in accordance with Plan Rules, credit a
Participant's Account, including the undistributed portion of an
Account being distributed in the form of installment payments, with
earnings in an amount equal to the "applicable percentage" of the
average daily balance of the Account for the quarter. The applicable
percentage for a given calendar quarter is the quarterly equivalent of
the average of the annual yield set forth for each month during the
quarter in the MOODY'S BOND RECORD, published by Moody's Investor's
Service, Inc. (or any successor thereto) under the heading of "Moody's
Corporate Bond Yield Averages - Av. Corp." or, if such yield is no
longer available, a substantially similar average selected by the
Administrator.
3.5 VESTING.
(A) Subject to Section 4.1(D)(3), (1) a Participant will acquire a
fully vested, nonforfeitable interest in his or her Account
established and maintained pursuant to Section 3.1(A) upon
attaining age 65 while he or she is an employee of an Affiliate
or upon becoming an Active Participant after he or she attains
age 65 and (2) a Participant will acquire a fully vested,
nonforfeitable interest in his or her Account established and
maintained pursuant to Section 3.1(B) upon attaining age 60 while
he or she is an employee of an Affiliate.
(B) A Participant will acquire a fully vested, nonforfeitable
interest in his or her Account if he or she dies or becomes
Disabled while he or she is an employee of an Affiliate.
(C) Subject to Section 4.1(D)(3), a Participant whose employment
terminates prior to his or her attainment of age 65 in the case
of the Account established and maintained pursuant to Section
3.1(A), or prior to his or her attainment of age 60 in the case
of the Account established and maintained pursuant to Section
3.1(B), other than by reason of his or her death or becoming
Disabled will acquire a vested, nonforfeitable interest in his or
her Account to the extent provided in the following schedule:
4
YEARS OF PARTICIPATION PERCENTAGE VESTED
---------------------- -----------------
Less Than Five Years 0%
Five Years 50%
Six Years 60%
Seven Years 70%
Eight Years 80%
Nine Years 90%
Ten or More Years 100%
Notwithstanding the foregoing provisions of this subsection,
subject to Section 4.1(D)(3), in no case will a
Participant's vested, nonforfeitable interest in his or her
Account established and maintained pursuant to Section 3.1(B)
be less than 50 percent.
(D) A Participant will acquire a fully vested nonforfeitable interest
in his or her Account upon the occurrence of a Change in Control.
(E) The Administrator may at any time accelerate the vesting of all
or any part of the nonvested portion of a Participant's Account.
(F) The nonvested portion of a Participant's Account will be
permanently forfeited as of the beginning of the day on which
he or she terminates employment.
(G) For purposes of this section, a Participant's status as an
employee of an Affiliate on a given date will be based on the
Affiliate's classification on that date without regard to any
subsequent retroactive reclassification.
5
ARTICLE 4
DISTRIBUTION
4.1 DISTRIBUTION TO PARTICIPANT.
(A) FORM. Distribution to a Participant will be made in the form of
120 monthly payments.
(B) TIME. Distribution to a Participant will begin during the first
month of the Plan Year next following the Plan Year during which
the Participant terminates employment.
(C) AMOUNT. The amount of each monthly installment payment will be
determined by dividing the Participant's vested Account balance
as of the last day of the calendar quarter immediately preceding
the payment date, reduced by the amount of any subsequent
installment payments, by the total number of remaining payments
(including the payment in question).
(D) SPECIAL RULES. The provisions of this subsection apply
notwithstanding Subsection (A), (B) or (C) to the contrary.
(1) ALTERNATIVE FORM. Prior to the date on which a Participant's
distribution commences in accordance with Subsection (B),
the Administrator, in its sole discretion, may elect to make
the distribution in any alternative form and at such time or
times as the Administrator determines; provided, that,
subject to clause (3), in any case the Participant's entire
vested Account balance must be distributed not later than
the last day of the tenth Plan Year that starts after the
Plan Year during which the Participant terminates
employment. In determining the amount of any distribution
pursuant to this clause, the following rules apply:
(a) If the distribution is made in the form of a single
lump sum payment, the amount of the payment will be
equal to the Participant's vested Account balance as of
the last day of the calendar quarter immediately
preceding the payment;
(b) If the distribution is made in the form of periodic
payments (other than installment payments made at
regular intervals), the amount of each payment except
the final payment will be determined by the
Administrator and the amount of the final payment will
be equal to the Participant's vested Account balance as
of the last day of the calendar quarter immediately
preceding the payment reduced by the amount of any
subsequent payments; and
(c) If the distribution is made in the form of installment
payments made at regular intervals, the amount of each
payment will be determined in accordance with
Subsection (C).
6
(2) DIVESTITURES.
(a) If some or all of the assets of a Participating
Employer are sold or otherwise disposed of to an
acquirer that is not an Affiliate, the Administrator
may, but is not required to, cause to be distributed
the vested Account balance of any Participant whose
employment with all Affiliates is terminated in
connection with the sale or disposition unless the
acquirer adopts a successor plan which is substantially
similar to the Plan in all material respects and
expressly assumes the Participating Employer's
obligation to provide benefits to the Participant, in
which case the Participating Employer will cease to
have any obligation to provide benefits to the
Participant pursuant to the Plan as of the effective
date of the assumption. Any such distribution will be
made in the form of a lump sum payment as soon as
administratively practicable after the date of the sale
or disposition. The amount of the payment will be
determined in accordance with clause (1)(a).
(b) If a Participating Employer ceases to be an Affiliate,
unless otherwise provided in an agreement between an
Affiliate and the Participating Employer or an
Affiliate and an acquirer that is not an Affiliate,
(i) a Participant who is employed with the
Participating Employer, or
(ii) a Participant who is not employed with the
Participating Employer but has an Account balance
attributable to the Participating Employer
will not become entitled to his or her Account balance
attributable to the Participating Employer solely as a
result of the cessation and the Participating Employer
will, after the date on which it ceases to be an
Affiliated Organization, continue to be solely
responsible to provide benefits to the Participant at
least equal to the balance of the Account as of the
effective date of the cessation and as thereafter
increased by credits pursuant to Section 3.2 relating
to the period before the effective date and earnings
credits pursuant to Section 3.4.
(3) CERTAIN FORFEITURES. The entire balance of a Participant's
Account will be permanently forfeited if, without the prior
written consent of the Company, the Participant, at any time
prior to his or her termination of employment or during the
period during which he or she is receiving distributions
pursuant to the Plan, actively participates or engages in
any business in competition with any Affiliate or fails to
make himself or herself available for consultation, or if
the Participant's employment is
7
terminated at any time prior to age 65 because of evidence
of dishonesty or mistrust in his or her employment or
because of his or her involvement in a crime or misdemeanor
against any Affiliate or any employee of an Affiliate for
which the Participant is convicted or which the Participant
has confessed in writing to the Company or any law
enforcement agency.
(E) REDUCTION OF ACCOUNT BALANCE. The balance of the Account from
which a distribution is made will be reduced by the amount of the
distribution as of the beginning of the date of the distribution.
4.2 DISTRIBUTION TO BENEFICIARY.
(A) FORM. In the event of a Participant's death, the balance of the
Participant's Account will be distributed to the Participant's
Beneficiary in a lump sum payment whether or not payments had
commenced to the Participant in the form of installments prior to
his or her death.
(B) TIME. Distribution to a Beneficiary will be made within 60 days
after the date on which the Administrator receives notice of the
Participant's death.
(C) AMOUNT. The amount of the payment will be determined in
accordance with Section 4.1(D)(1)(a).
(D) REDUCTION OF ACCOUNT BALANCE. The balance of the Account from
which a distribution is made will be reduced by the amount of the
distribution as of the beginning of the date of the distribution.
(E) BENEFICIARY DESIGNATION.
(1) A Participant may designate, on a form furnished by the
Administrator, one or more primary Beneficiaries or
alternative Beneficiaries to receive all or a specified part
of his or her Account after his or her death, and the
Participant may change or revoke any such designation from
time to time. No such designation, change or revocation is
effective unless executed by the Participant and received by
the Administrator during the Participant's lifetime. No
designation of a Beneficiary other than the Participant's
spouse is effective unless the spouse consents to the
designation or the Administrator determines that spousal
consent cannot be obtained because the spouse cannot
reasonably be located or is legally incapable of consenting.
The consent must be in writing, must acknowledge the effect
of the election and must be witnessed by a notary public.
The consent is effective only with respect to the
Beneficiary or class of Beneficiaries so designated and only
with respect to the spouse who so consented.
(2) If a Participant -
(a) fails to designate a Beneficiary, or
8
(b) revokes a Beneficiary designation without naming
another Beneficiary, or
(c) designates one or more Beneficiaries none of whom
survives the Participant or exists at the time in
question, for all or any portion of his or her Account,
such Account or portion will be paid to the
Participant's surviving spouse or, if the Participant
is not survived by a spouse, to the representative of
the Participant's estate.
(3) The automatic Beneficiaries specified above and, unless the
designation otherwise specifies, the Beneficiaries
designated by the Participant, become fixed as of the
Participant's death so that, if a Beneficiary survives the
Participant but dies before the receipt of the payment due
such Beneficiary, the payment will be made to the
representative of such Beneficiary's estate. Any designation
of a Beneficiary by name that is accompanied by a
description of relationship or only by statement of
relationship to the Participant is effective only to
designate the person or persons standing in such
relationship to the Participant at the Participant's death.
4.3 PAYMENT IN EVENT OF INCAPACITY. If any individual entitled to receive
any payment under the Plan is, in the judgment of the Administrator,
physically, mentally or legally incapable of receiving or
acknowledging receipt of the payment, and no legal representative has
been appointed for the individual, the Administrator may (but is not
required to) cause the payment to be made to any one or more of the
following as may be chosen by the Administrator: the Beneficiary (in
the case of the incapacity of a Participant); the institution
maintaining the individual; a custodian for the individual under the
Uniform Transfers to Minors Act of any state; or the individual's
spouse, children, parents, or other relatives by blood or marriage.
The Administrator is not required to see to the proper application of
any such payment and the payment completely discharges all claims
under the Plan against the Participating Employer, the Plan and Trust
to the extent of the payment.
9
ARTICLE 5
SOURCE OF PAYMENTS; NATURE OF INTEREST
5.1 ESTABLISHMENT OF TRUST.
(A) A Participating Employer may establish a Trust, or may be covered
by a Trust established by another Participating Employer, with an
independent corporate trustee. The Trust must (1) be a grantor
trust with respect to which the Participating Employer is treated
as the grantor for purposes of Code section 677, (2) not cause
the Plan to be funded for purposes of Title I of ERISA and (3)
provide that the Trust assets will, upon the insolvency of a
Participating Employer, be used to satisfy claims of the
Participating Employer's general creditors. The Participating
Employers may from time to time transfer to the Trust cash,
marketable securities or other property acceptable to the Trustee
in accordance with the terms of the Trust.
(B) Notwithstanding Subsection (A), not later than the effective date
of a Change in Control, each Participating Employer must transfer
to the Trust an amount not less than the amount by which (1) 125
percent of the aggregate balance of all Participants' Accounts
attributable to the Participating Employer as of the last day of
the month immediately preceding the effective date of the Change
in Control exceeds (2) the value of the Trust assets attributable
to amounts previously contributed by the Participating Employer
as of the most recent date as of which such value was determined.
5.2 SOURCE OF PAYMENTS.
(A) Each Participating Employer will pay, from its general assets,
the portion of any benefit pursuant to Article 4 or Section 6.3
or 6.4 attributable to a Participant's Account with respect to
that Participating Employer, and all costs, charges and expenses
relating thereto.
(B) The Trustee will make distributions to Participants and
Beneficiaries from the Trust in satisfaction of a Participating
Employer's obligations under the Plan in accordance with the
terms of the Trust. The Participating Employer is responsible for
paying any benefits attributable to a Participant's Account with
respect to that Participating Employer that are not paid by the
Trust.
5.3 STATUS OF PLAN. Nothing contained in the Plan or Trust is to be
construed as providing for assets to be held for the benefit of any
Participant or any other person or persons to whom benefits are to be
paid pursuant to the terms of this Plan, the Participant's or other
person's only interest under the Plan being the right to receive the
benefits set forth herein. The Trust is established only for the
convenience of the Participating Employers and no Participant has any
interest in the assets of the Trust. To the extent the Participant or
any other person acquires a right to receive benefits under this Plan,
such right is no greater than the right of any unsecured general
creditor of the Participating Employer.
10
5.4 NON-ASSIGNABILITY OF BENEFITS. The benefits payable under the Plan and
the right to receive future benefits under the Plan may not be
anticipated, alienated, sold, transferred, assigned, pledged,
encumbered, or subjected to any charge or legal process.
11
ARTICLE 6
ADOPTION, AMENDMENT, TERMINATION
6.1 ADOPTION. With the prior approval of the Administrator, an Affiliate
may, by action of its Board, adopt the Plan and become a Participating
Employer.
6.2 AMENDMENT.
(A) The Company reserves the right to amend the Plan at any time to
any extent that it may deem advisable. To be effective, an
amendment must be stated in a written instrument approved in
advance or ratified by the Company's Board and executed in the
name of the Company by its President or a Vice President and
attested by the Secretary or an Assistant Secretary.
(B) An amendment adopted in accordance with Subsection (A) is binding
on all interested parties as of the effective date stated in the
amendment; provided, however, that (1) no amendment may adversely
affect a benefit to which a Participant, or the Beneficiary of a
deceased Participant, is entitled under the terms of the Plan as
of the later of the adoption date or effective date of the
amendment and (2) no attempted amendment to Section 3.5(D),
5.1(B), this clause (2) or Section 7.8 will be effective with
respect to any Change in Control, as defined in Section 7.8
without regard to the attempted amendment, occurring within 12
months after the date on which the attempted amendment is
approved by the Company's Board unless each Participant provides
his or her written consent to the amendment. Notwithstanding the
foregoing, the Company may amend the Plan at any time to change
the method for determining the earnings credit pursuant to
Section 3.4 for the period after the later of the adoption date
or effective date of the amendment, and such amendment may be
applied both to future credits to Participants' Accounts pursuant
to Section 3.2 and to existing Account balances (but the
amendment may not reduce the balance of any Account as of the
later of the adoption date or effective date of the amendment).
(C) The provisions of the Plan in effect at the termination of a
Participant's employment will, except as otherwise expressly
provided by a subsequent amendment, continue to apply to such
Participant.
6.3 TERMINATION OF PARTICIPATION. Notwithstanding any other provision of
the Plan to the contrary, if determined by the Administrator to be
necessary to ensure that the Plan is exempt from ERISA to the extent
contemplated by Section 1.3, or upon the Administrator's determination
that a Participant's interest in the Plan has been or is likely to be
includable in the Participant's gross income for federal income tax
purposes prior to the actual payment of benefits pursuant to the Plan,
the Administrator may take any or all of the following steps:
(a) terminate the Participant's future participation in the
Plan;
12
(b) cause the Participant's vested Account balance to be
distributed to the Participant in the form of an immediate
lump sum in an amount determined in accordance with Section
4.1(D)(1)(a); and/or
(c) transfer the benefits that would otherwise be payable
pursuant to the Plan for all or any of the Participants to a
new plan that is similar in all material respects (other
than those which require the action in question to be
taken.)
6.4 TERMINATION. The Company reserves the right to terminate the Plan in
its entirety at any time. Each Participating Employer reserves the
right to cease its participation in the Plan at any time. The Plan will
terminate in its entirety or with respect to a particular Participating
Employer as of the date specified by the Company or such Participating
Employer in a written instrument by its authorized officers to the
Administrator, adopted in the manner of an amendment. Upon the
termination of the Plan in its entirety or with respect to any
Participating Employer, the Company or Participating Employer, as the
case may be, will either cause (a) any benefits to which Participants
have become entitled prior to the effective date of the termination to
continue to be paid in accordance with the provisions of Article 4 or
(b) the entire vested Account balance of any or all Participants, or
the Beneficiaries of any or all deceased Participants, to be
distributed in the form of an immediate lump sum payment in an amount
determined in accordance with Section 4.1(D)(1)(a).
13
ARTICLE 7
DEFINITIONS, CONSTRUCTION AND INTERPRETATION
The definitions and rules of construction and interpretation set forth in this
article apply in construing the Plan unless the context otherwise indicates.
7.1 ACCOUNT. "Account" means either or both of the bookkeeping accounts
maintained with respect to a Participant pursuant to Section 3.1, as
the context requires.
7.2 ACTIVE PARTICIPANT. "Active Participant" with respect to a Plan Year is
an individual who the Administrator has determined pursuant to Section
2.1 is eligible to have credits made to his or her Account pursuant to
Section 3.2 for the Plan Year.
7.3 ADMINISTRATOR. The "Administrator" of the Plan is the Compensation
Committee of the Company's Board or the person to whom administrative
duties are delegated pursuant to the provisions of Section 8.1, as the
context requires.
7.4 AFFILIATE. An "Affiliate" is (a) the Company, (b) any corporation that
is a member of a controlled group of corporations, within the meaning
of Code section 414(b), that includes the Company and (c) any other
entity in which the Company has a direct or indirect ownership interest
and which is identified by the Administrator as an Affiliate.
7.5 BASE SALARY. The "Base Salary" of an Active Participant for any Plan
Year is his or her base salary paid by his or her Participating
Employer during the Plan Year. Base Salary includes only regular cash
salary and is determined before any reduction or deduction of any kind.
7.6 BENEFICIARY. "Beneficiary" with respect to a Participant is the person
designated or otherwise determined under the provisions of Section
4.2(E) as the distributee of benefits payable after the Participant's
death. A person designated or otherwise determined to be a Beneficiary
under the terms of the Plan has no interest in or right under the Plan
until the Participant in question has died. A Beneficiary will cease to
be such on the day on which all benefits to which he, she or it is
entitled under the Plan have been distributed.
7.7 BOARD. "Board" means the board of directors of the Affiliate in
question. When the Plan provides for an action to be taken by the
Board, the action may be taken by any committee or individual
authorized to take such action pursuant to a proper delegation by the
board of directors in question.
7.8 CHANGE IN CONTROL.
(A) "Change in Control" is any of the following:
(1) the sale, lease, exchange or other transfer, directly or
indirectly, of all or substantially all of the assets of the
Company, in one transaction or in a series of related
transactions, to any person;
14
(2) the approval by the stockholders of the Company of any plan
or proposal for the liquidation or dissolution of the
Company;
(3) any person is or becomes the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly,
of (a) 20 percent or more, but not more than 50 percent, of
the combined voting power of the Company's outstanding
securities ordinarily having the right to vote at elections
of directors, unless the transaction resulting in such
ownership has been approved in advance by the continuity
directors or (b) more than 50 percent of the combined voting
power of the Company's outstanding securities ordinarily
having the right to vote at elections of directors
(regardless of any approval by the continuity directors);
(4) a merger or consolidation to which the Company is a party if
the stockholders of the Company immediately prior to the
effective date of such merger or consolidation have
beneficial ownership (as defined in Rule 13d-3 under the
Exchange Act) immediately following the effective date of
such merger or consolidation of securities of the surviving
company representing (a) 50 percent or more, but not more
than 80 percent, of the combined voting power of the
surviving corporation's then outstanding securities
ordinarily having the right to vote at elections of
directors, unless such merger or consolidation has been
approved in advance by the continuity directors, or (b) less
than 50 percent of the combined voting power of the
surviving corporation's then outstanding securities
ordinarily having the right to vote at elections of
directors (regardless of any approval by the continuity
directors);
(5) the continuity directors cease for any reason to constitute
at least a majority of the Company's board of directors; or
(6) a change in control of the Company of a nature that would be
required to be reported pursuant to section 13 or 15(d) of
the Exchange Act, whether or not the Company is then subject
to such reporting requirement.
(B) For purposes of this section:
(1) a "continuity director" means any individual who is a member
of the Company's board of directors on the Effective Date
while he or she is a member of the board, and any individual
who subsequently becomes a member of the Company's board of
directors whose election or nomination for election by the
Company's stockholders was approved by a vote of at least a
majority of the directors who are continuity directors
(either by a specific vote or by approval of the proxy
statement of the Company in which such individual is named
as a nominee for director without objection to such
nomination);
15
(2) "Exchange Act" is the Securities Exchange Act of 1934, as
amended from time to time; and
(3) "person" includes any individual, corporation, partnership,
group, association or other "person," as such term is
defined in section 14(d) of the Exchange Act, other than (i)
the Company; (ii) any corporation at least a majority of
whose securities having ordinary voting power for the
election of directors is owned, directly or indirectly, by
the Company; (iii) any other entity in which the Company, by
virtue of a direct or indirect ownership interest, has the
right to elect a majority of the members of the entity's
governing body; or (iv) any benefit plan sponsored by the
Company, a corporation described in clause (ii) or an entity
described in clause (iii).
7.9 CODE. "Code" means the Internal Revenue Code of 1986, as amended. Any
reference to a specific provision of the Code includes a reference to
that provision as it may be amended from time to time and to any
successor provision.
7.10 COMPANY. "Company" means Nash Finch Company.
7.11 CROSS REFERENCE. References within a section of the Plan to a
particular subsection refer to that subsection within the same section
and references within a section or subsection to a particular clause
refer to that clause within the same section or subsection, as the case
may be.
7.12 DISABLED. A Participant will be considered to be "Disabled" only if the
Administrator determines that he or she is absent from active
employment with all Affiliates because of his or her illness, injury or
disease that is likely to be of long or indefinite duration or result
in death.
7.13 ERISA. "ERISA" means the Employee Retirement Income Security Act of
1974, as amended. Any reference to a specific provision of ERISA
includes a reference to that provision as it may be amended from time
to time and to any successor provision.
7.14 GOVERNING LAW. To the extent that state law is not preempted by the
provisions of ERISA, or any other laws of the United States, all
questions pertaining to the construction, validity, effect and
enforcement of the Plan will be determined in accordance with the
internal, substantive laws of the State of Minnesota without regard to
the conflict of law principles of the State of Minnesota or any other
jurisdiction.
7.15 HEADINGS. The headings of articles and sections are included solely for
convenience of reference; if there exists any conflict between such
headings and the text of the Plan, the text will control.
7.16 NUMBER AND GENDER. Wherever appropriate, the singular may be read as
the plural, the plural may be read as the singular and one gender may
be read as the other gender.
16
7.17 PARTICIPANT. "Participant" is a current or former Active Participant to
whose Account amounts have been credited pursuant to Article 3 and who
has not ceased to be a Participant pursuant to Section 2.3.
7.18 PARTICIPATING EMPLOYER. "Participating Employer" is the Company and any
other Affiliate that has adopted the Plan, or all of them collectively,
as the context requires. An Affiliate will cease to be a Participating
Employer upon a termination of the Plan as to its Employees and the
satisfaction in full of all of its obligations under the Plan or upon
its ceasing to be an Affiliate.
7.19 PLAN. "Plan" means the Nash Finch Company Supplemental Executive
Retirement Plan, as from time to time amended or restated.
7.20 PLAN RULES. "Plan Rules" are rules, policies, practices or procedures
adopted by the Administrator pursuant to Section 8.2.
7.21 PLAN YEAR. "Plan Year" means the calendar year.
7.22 TERMINATION OF EMPLOYMENT. An individual will be deemed to have
terminated employment for purposes of the Plan only if he or she has
completely severed his or her employment relationship with all
Affiliates.
7.23 TRUST. "Trust" means any trust or trusts established by a
Participating Employer pursuant to Section 5.1.
7.24 TRUSTEE. "Trustee" means the independent corporate trustee or trustees
that at the relevant time has or have been appointed to act as Trustee
of the Trust.
7.25 YEAR OF PARTICIPATION.
(A) A Participant will be credited with one "Year of Participation"
for each Plan Year if, at any time during the Plan Year, he or
she is either (1) an Active Participant or (2) an employee of an
Affiliate (as classified by the Affiliate at the time services
are performed without regard to any subsequent retroactive
reclassification) with an Account balance under the Plan.
(B) No Participant will be credited with a Year of Participation for
any Plan Year ending before January 1, 2000.
(C) If a Participant terminates employment with all Affiliates and is
subsequently rehired by an Affiliate:
(1) his or her service completed after he or she is rehired will
not increase his or her vested interest in his or her
Account balance attributable to participation before the
termination of employment and
(2) his or her Years of Participation completed before his or
her initial termination of employment will be disregarded in
determining his or her
17
vested interest in his or her Account attributable to
participation after he or she is rehired.
18
ARTICLE 8
ADMINISTRATION
8.1 ADMINISTRATOR. The general administration of the Plan and the duty to
carry out its provisions is vested in the Compensation Committee of the
Company's Board. Such Committee may delegate any nondiscretionary,
ministerial duty or any portion thereof to a named person and may from
time to time revoke such authority and delegate it to another person.
8.2 PLAN RULES. The Administrator has the discretionary power and authority
to make such Plan Rules as the Administrator determines to be
consistent with the terms, and necessary or advisable in connection
with the administration, of the Plan and to modify or rescind any such
Plan Rules.
8.3 ADMINISTRATOR'S DISCRETION. The Administrator has the discretionary
power and authority to make all determinations necessary for
administration of the Plan, except those determinations that the Plan
requires others to make, and to construe, interpret, apply and enforce
the provisions of the Plan and Plan Rules whenever necessary to carry
out its intent and purpose and to facilitate its administration,
including, without limitation, the discretionary power and authority to
remedy ambiguities, inconsistencies, omissions and erroneous benefit
calculations. In the exercise of its discretionary power and authority,
the Administrator will treat all similarly situated persons uniformly.
8.4 SPECIALIST'S ASSISTANCE. The Administrator may retain such actuarial,
accounting, legal, clerical and other services as may reasonably be
required in the administration of the Plan, and may pay reasonable
compensation for such services. All costs of administering the Plan
will be paid by the Participating Employers.
8.5 INDEMNIFICATION. The Participating Employers jointly and severally
agree to indemnify and hold harmless, to the extent permitted by law,
each director, officer, and employee of any Affiliate against any and
all liabilities, losses, costs and expenses (including legal fees) of
every kind and nature that may be imposed on, incurred by, or asserted
against such person at any time by reason of such person's services in
connection with the Plan, but only if such person did not act
dishonestly or in bad faith or in willful violation of the law or
regulations under which such liability, loss, cost or expense arises.
The Participating Employers have the right, but not the obligation, to
select counsel and control the defense and settlement of any action for
which a person may be entitled to indemnification under this provision.
8.6 BENEFIT CLAIM PROCEDURE.
(A) If a request for a benefit by a Participant or Beneficiary of a
deceased Participant is denied in whole or in part, he or she
may, not later than 30 days after the denial, file with the
Administrator a written claim objecting to the denial.
(B) The Administrator, not later than 90 days after receipt of such
claim, will render a written decision to the claimant on the
claim. If the claim is denied, in whole or in part, such decision
will include the reason or reasons for the denial; a reference
19
to the Plan provisions on which the denial is based; a
description of any additional material or information, if any,
necessary for the claimant to perfect his or her claim; an
explanation as to why such information or material is necessary;
and an explanation of the Plan's claim procedure.
(C) The claimant may file with the Administrator, not later than 60
days after receiving the Administrator's written decision, a
written notice of request for review of the Administrator's
decision, and the claimant or his or her representative may
thereafter review relevant Plan documents which relate to the
claim and may submit written comments to the Administrator.
(D) Not later than 60 days after receipt of such review request, the
Administrator will render a written decision on the claim, which
decision will include the specific reasons for the decision,
including a reference to the Plan's specific provisions where
appropriate.
(E) The foregoing 90 and 60-day periods during which the
Administrator must respond to the claimant may be extended by up
to an additional 90 or 60 days, respectively, if special
circumstances beyond the Administrator's control so require and
notice of such extension is given to the claimant prior to the
expiration of such initial 90 or 60-day period, as the case may
be.
(F) A Participant or Beneficiary must exhaust the procedure described
in this section before making any claim of entitlement to
benefits pursuant to the Plan in any court or other proceeding.
8.7 LIMITATIONS ON CERTAIN ACTIONS. A Participant or Beneficiary may not
commence a civil action pursuant to ERISA section 502(a)(1) with
respect to a benefit under the Plan after the earlier of (a) six years
after the occurrence of the facts or circumstances that give rise to or
form the basis for such action and (b) two years after the date the
Participant or Beneficiary had knowledge of the facts or circumstances
that give rise to or form the basis for the action.
20
ARTICLE 9
MISCELLANEOUS
9.1 WITHHOLDING AND OFFSETS. The Participating Employers and the Trustee
retain the right to withhold from any compensation or benefit payment
pursuant to the Plan, any and all income, employment, excise and other
tax as the Participating Employers or Trustee deems necessary and the
Participating Employers may offset against amounts then payable to a
Participant or Beneficiary under the Plan any amounts then owing to the
Participating Employers by such Participant or Beneficiary.
9.2 OTHER BENEFITS. Neither amounts deferred nor amounts paid pursuant to
the Plan constitute salary or compensation for the purpose of computing
benefits under any other benefit plan, practice, policy or procedure of
a Participating Employer unless otherwise expressly provided
thereunder.
9.3 NO WARRANTIES REGARDING TAX TREATMENT. The Participating Employers make
no warranties regarding the tax treatment to any person of any credits
or payments made pursuant to the Plan and each Participant will hold
the Administrator and the Participating Employers and their officers,
directors, employees, agents and advisors harmless from any liability
resulting from any tax position taken in good faith in connection with
the Plan.
9.4 NO EMPLOYMENT RIGHTS CREATED. Neither the establishment of or
participation in the Plan gives any Employee the right to continued
employment or limits the right of the Participating Employer to
discharge, transfer, demote, modify terms and conditions of employment
or otherwise deal with any employee without regard to the effect which
such action might have on him or her with respect to the Plan.
9.5 SUCCESSORS. Except as otherwise expressly provided in the Plan, all
obligations of the Participating Employers under the Plan are binding
on any successor to the Participating Employer whether the existence of
such successor is the result of a direct or indirect purchase, merger,
consolidation or otherwise of all or substantially all of the business
and/or assets of the Participating Employer.
21