EXHIBIT 10.11
WORKING COPY OF
ESKIMO PIE CORPORATION
EXECUTIVE RETIREMENT PLAN
(AS ADOPTED EFFECTIVE APRIL 6, 1992)
Including:
1. First Amendment
2. Second Amendment
3. Third Amendment
4. Adoption Agreement for Sugar Creek Foods, Inc. -
Attached to Appendix A
5 Acknowledgment of Appointment of Trustee
by Thomas M. Mishoe, Jr.
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITION OF TERMS
1.1 Accrued Benefit...................................................................... 1
1.2 Act.................................................................................. 1
1.3 Actuarial Equivalent or Actuarial Value.............................................. 1
1.4 Administrator........................................................................ 1
1.5 Affiliate............................................................................ 1
1.6 Annuity Starting Date................................................................ 2
1.7 Beneficiary.......................................................................... 2
1.8 Board................................................................................ 2
1.9 Code................................................................................. 2
1.10 Compensation......................................................................... 2
1.11 Effective Date....................................................................... 2
1.12 Eligible Employee.................................................................... 3
1.13 Employee............................................................................. 3
1.14 Employer............................................................................. 3
1.15 Normal Retirement Age................................................................ 3
1.16 Participant.......................................................................... 4
1.17 Period of Service.................................................................... 4
1.18 Plan................................................................................. 4
1.19 Plan Sponsor......................................................................... 4
1.20 Plan Year............................................................................ 4
1.21 Rabbi Trust.......................................................................... 4
1.22 Salaried Employee.................................................................... 4
1.23 Salaried Retirement Plan............................................................. 4
1.24 Spouse............................................................................... 4
1.25 Trustee.............................................................................. 4
1.26 Year of Benefit Service.............................................................. 4
1.27 Year of Broken Service............................................................... 5
1.28 Year of Service...................................................................... 5
1.29 Year of Vesting Service.............................................................. 5
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility and Date of Participation................................................ 5
2.2 Eligibility Service Definitions and Rules............................................ 5
ARTICLE III
FUNDING
3.1 Funding.............................................................................. 6
3.2 Plan Costs and Expenses.............................................................. 6
3.3 No Interest or Right Other Than Plan Benefit......................................... 6
3.4 Rabbi Trust.......................................................................... 6
ARTICLE IV
DETERMINATION OF ACCRUED BENEFIT
4.1 Accrued Benefit...................................................................... 7
4.2 Accrued Benefit Service Rules........................................................ 8
4.3 Effect of Certain Cash-Outs on Accrued Benefit....................................... 8
4.4 No Duplication of Benefits........................................................... 8
ARTICLE V
RETIREMENT DATES
5.1 Normal Retirement Date............................................................... 9
5.2 Delayed Retirement Date.............................................................. 9
5.3 Early Retirement Date................................................................ 9
5.4 Disability and Retirement, Death or Separation after Disability...................... 9
ARTICLE VI
VESTING
6.1 Vesting at Retirement or Attainment of Normal Retirement Age......................... 10
6.2 Vesting in Accrued Benefit at Other Times............................................ 10
6.3 Vesting Service Rules................................................................ 10
6.4 Forfeiture and Restoration of Accrued Benefits....................................... 10
6.5 No Reduction in Certain Vested Accrued Benefits by Reason of Re-Employment........... 10
ARTICLE VII
DEATH BENEFITS
7.1 Death after Annuity Starting Date.................................................... 11
7.2 Death before Annuity Starting Date................................................... 11
7.3 Pre-Retirement Spouse's Death Benefit................................................ 11
7.4 Beneficiary Designation.............................................................. 12
ARTICLE VIII
PAYMENT OF BENEFITS
8.1 Time of Payment...................................................................... 12
8.2 Form of Accrued Benefit Payment...................................................... 13
8.3 Form of Death Benefit Payment........................................................ 14
8.4 Benefit Cash-Out..................................................................... 14
8.5 Notice, Election and Consent Regarding Accrued Benefit Payment....................... 15
8.6 Special Rules for Benefits on Re-employment or Continued Employment
after Normal Retirement Age........................................................ 16
8.7 Benefit Determination and Payment Procedure.......................................... 17
8.8 Claims Procedure..................................................................... 17
8.9 Payments to Minors and Incompetents.................................................. 18
8.10 Distribution of Benefit When Distributee Cannot Be Located........................... 19
8.11 Minimum Amount Paid Monthly.......................................................... 19
ARTICLE IX
FIDUCIARIES
9.1 Named Fiduciaries and Duties and Responsibilities.................................... 19
9.2 Limitation of Duties and Responsibilities of Named Fiduciaries....................... 19
9.3 Service by Named Fiduciaries in More Than One Capacity............................... 19
9.4 Allocation or Delegation of Duties and Responsibilities by Named Fiduciaries......... 19
9.5 Assistance and Consultation.......................................................... 19
9.6 Indemnification...................................................................... 20
ARTICLE X
PLAN ADMINISTRATION
10.1 Appointment of Plan Administrator.................................................... 20
10.2 Plan Sponsor as Plan Administrator................................................... 20
10.3 Compensation and Expenses............................................................ 20
10.4 Procedure if a Committee............................................................. 20
10.5 Action by Majority Vote if a Committee............................................... 20
10.6 Appointment of Successors............................................................ 20
10.7 Additional Duties and Responsibilities............................................... 20
10.8 Power and Authority.................................................................. 21
10.9 Availability of Records.............................................................. 21
10.10 No Action with Respect to Own Benefit................................................ 21
10.11 Limitation on Powers and Authority................................................... 21
ARTICLE XI
AMENDMENT AND TERMINATION OF PLAN
11.1 Amendment and Termination............................................................ 21
11.2 Termination Events with Respect to Employers Other Than the Plan Sponsor............. 22
11.3 Effect of Employer Merger, Consolidation or Liquidation.............................. 22
ARTICLE XII
MISCELLANEOUS
12.1 Headings............................................................................. 22
12.2 Gender and Number.................................................................... 22
12.3 Governing Law........................................................................ 22
12.4 Employment Rights.................................................................... 22
12.5 Conclusiveness of Employer Records................................................... 23
12.6 Right to Require Information and Reliance Thereon.................................... 23
12.7 Alienation and Assignment............................................................ 23
12.8 Notices and Elections................................................................ 23
12.9 Delegation of Authority.............................................................. 23
12.10 Service of Process................................................................... 23
12.11 Construction......................................................................... 23
ARTICLE XIII
ADOPTION OF THE PLAN
13.1 Adoption by Additional Employers..................................................... 23
APPENDICES
Appendix A - List of Participating Employers
Appendix B - List of Additional Included Positions
THIS PLAN is adopted this __ day of December, 1992 by Eskimo Pie
Corporation, a Delaware corporation, and other participating employers who now
or hereafter may adopt this agreement as provided herein (hereinafter called the
"Employer").
WITNESSETH:
THAT, WHEREAS, Eskimo Pie Corporation deems it desirable to adopt an
Executive Retirement Plan for certain of its employees; and
WHEREAS, the Employer by due corporate action has approved and authorized
the execution of this non-qualified defined benefit pension plan for its
employees;
NOW, THEREFORE, in consideration of the premises, the Plan is hereby
adopted and provides as follows:
ARTICLE I
DEFINITION OF TERMS
The following words and terms as used herein shall have the meaning set
forth below, unless a different meaning is clearly required by the context:
1.1 "ACCRUED BENEFIT": That benefit determined under the provisions of
paragraph 4.1 to which a Participant is entitled.
1.2 "ACT": The Employee Retirement Income Security Act of 1974, as the
same may be amended from time to time, or the corresponding sections of any
subsequent legislation which replaces it, and, to the extent not inconsistent
therewith, the regulations issued thereunder.
1.3 "ACTUARIAL EQUIVALENT" or "ACTUARIAL VALUE":
(i) In the case of actual or deemed benefit payments to a
Participant, a benefit of equivalent value to his Accrued Benefit
commencing on the Participant's Normal Retirement Date (or as otherwise
provided in paragraph 4.1),
(ii) In the case of a Pre-Retirement Spouse's Death Benefit
commencing to a Participant's Spouse, a benefit of equivalent value to
such Death Benefit commencing on such Spouse's Earliest Commencement Date
(as determined pursuant to paragraph 7.3), and
(iii) For any other purpose, an amount or benefit of equivalent value
to another benefit or amount, based on the form(s) (which term is intended
to include the time(s)) of payment involved,
all as determined pursuant to the applicable sections of the Salaried Retirement
Plan except as otherwise expressly provided in this Plan.
1.4 "ADMINISTRATOR": The Plan Administrator provided for in ARTICLE X
hereof.
1.5 "AFFILIATE": An "Affiliate" as defined in the Salaried Retirement
Plan.
1.6 "ANNUITY STARTING DATE": The first day of the first period for which a
benefit is paid as an annuity or in any other form (as opposed to the actual
date of payment). Notwithstanding the foregoing, the Annuity Starting Date shall
not be considered delayed because actual benefit payment is delayed for
reasonable administrative reasons as long as all benefits due are actually made.
Further, the Administrator may consider the Annuity Starting Date delayed for
notice, election and consent purposes but not for payment purposes (which means
that payment may be made retroactively to the Annuity Starting Date once the
notice, election and consent requirements are satisfied).
1.7 "BENEFICIARY": The person or persons designated by a Participant or
otherwise entitled pursuant to paragraph 7.4 to receive benefits under the Plan
attributable to such Participant after the death of such Participant.
1.8 "BOARD": The present and any succeeding Board of Directors of the Plan
Sponsor, unless such term is used with respect to a particular Employer and its
Employees, in which event it shall mean the present and any succeeding Board of
Directors of that Employer.
1.9 "CODE": The Internal Revenue Code of 1986, as the same may be amended
from time to time, or the corresponding section of any subsequent Internal
Revenue Code, and, to the extent not inconsistent therewith, regulations issued
thereunder.
1.10 "COMPENSATION":
1.10(a) The sum of:
(i) An Employee's earnings, exclusive of all awards or payments
under any stock bonus, stock option, or stock purchase plan, or any plan
involving stock appreciation rights, prizes, expense reimbursements and
allowances, severance pay, imputed income, amounts contributed for the
Employee pursuant to and benefits under the Plan or any other employee
benefit plan or program of the Employer, or any other similar
remuneration, as reportable in the Wages, Tips and Other Compensation Box
(currently Box 10) on I.R.S. Form W-2 pursuant to Sections 6041, 6051 and
6052 of the Code received by or made available to him as a Salaried
Employee directly from the Employer (but not from any Affiliate which is
not a participating employer unless otherwise expressly provided) for a
Plan Year, and
(ii) The Employee's elective salary reduction or similar
contributions excluded from such earnings by reason of Sections 125,
402(a)(8) (or effective January 1, 1993, 402(e)(3)) and 402(h) of the Code
and contributed as a Salaried Employee.
Compensation for a Plan Year shall be rounded to the nearest whole dollar.
1.10(b) For purposes of determining the Accrued Benefit of a Participant
who is Disabled, such Participant shall be deemed to have received Compensation
during periods for which he is considered to be Disabled at his most recent
actual or equivalent annual rate of Compensation in effect prior to his becoming
Disabled. A Participant's "actual or equivalent hourly rate of Compensation"
means his Compensation for the twelve (12) consecutive calendar month period
ending prior to the calendar month in which his Disability commenced.
1.10(c) If a Participant ceases to be an Eligible Employee but remains or
later becomes a Salaried Employee, his Compensation taken into account in
applying the Benefit Formula shall include his earnings as a Salaried Employee
after he ceases to be an Eligible Employee.
1.11 "EFFECTIVE DATE": April 6, 1992, except that with respect to any
Employer thereafter adopting the Plan as a participating employer, such date as
may be set forth in its adoption agreement or in the Plan. The Administrator
shall maintain as Appendix A to the Plan a list of the Effective Dates of
participation of all Employers participating in the Plan.
1.12 "ELIGIBLE EMPLOYEE":
1.12(a) A Salaried Employee who is an Executive.
1.12(b) For purposes hereof, the term "Executive" means a person (i) who
is the Chairman of the Board, the Chief Executive Officer, the President, the
Chief Operating Officer, the Chief Financial Officer, a Vice President, the
Treasurer, the Secretary, or a General Manager of the Plan Sponsor or (ii) who
holds a position described in Appendix B to the Plan, which Appendix and job
descriptions may be modified or amended at any time by the Chief Executive
Officer of the Plan Sponsor without Board approval and which designations shall
be effective from the later of January 1, 1993, the effective date(s) of the
designation or the date an Employee holds any such position.
1.12(c) If an Eligible Employee ceases to be an Executive, he shall
thereupon cease to be an Eligible Employee.
1.13 "EMPLOYEE": Any person considered an "Employee" as defined in the
Salaried Retirement Plan.
1.14 "EMPLOYER":
1.14(a) The Plan Sponsor and each other employer heretofore or hereafter
executing or adopting the Plan with the consent of the Board as a participating
Employer, collectively unless the context otherwise indicates, for as long as it
remains a participating Employer; and with respect to any Employee, any one or
more of such Employers by which he is at any time employed (unless or to the
extent otherwise specified by resolution of the Board or in a merger or
acquisition agreement or plan approved by the Board or in any applicable asset
transfer, plan merger or consolidation or adoption agreement). The Administrator
shall maintain as Appendix A to the Plan a list of all such Employers who are,
from time to time, participating Employers in the Plan.
1.14(b) For purposes of determining compensation and service with any
business entity, or predecessor thereto, which is merged into a Employer, or a
predecessor thereto, or all or substantially all the assets or the operating
assets are acquired by a Employer, or a predecessor thereto, compensation from
and service with such business entity and predecessor thereto shall be treated
as compensation from and service with a Employer to the extent provided by
resolution of the Board or in any corporate or plan merger, consolidation or
asset transfer agreement or any adoption agreement approved by the Board.
1.14(c) Notwithstanding any other provision of the Plan:
(i) Service with Sugar Creek Foods of Russellville, Inc., which was
the predecessor by asset acquisition on February 28, 1994 to Sugar Creek
Foods, Inc., shall not be considered service for any purpose of the Plan.
(ii) Service with Sugar Creek Foods, Inc. prior to the January 1,
1996 Effective Date of the Plan with respect to it shall not be considered
service for purposes of determining Years of Benefit Service under the
Plan.
(iii) Compensation from Sugar Creek Foods, Inc. for periods prior to
the January 1, 1996 Effective Date of the Plan with respect to it shall
not be considered Compensation for purposes of determining Accrued
Benefits under paragraph 4.1 of the Plan.
1.15 "NORMAL RETIREMENT AGE": With respect to a Participant, the later
of:
(i) The age of sixty-five (65), or
(ii) The Participant's attained age on the fifth anniversary of his
first becoming an Employee.
1.16 "PARTICIPANT": An Eligible Employee selected to participate in the
Plan for so long as he is considered a Participant as provided in ARTICLE II
hereof.
1.17 "PERIOD OF SERVICE": A "Period of Service" as defined the Salaried
Retirement Plan. The operating rules provided in Appendix A to the Salaried
Retirement Plan shall apply for purposes of this Plan, except to the extent this
Plan expressly provides otherwise.
1.18 "PLAN": The Plan as contained herein or duly amended which shall be
known as the "Eskimo Pie Corporation Executive Retirement Plan".
1.19 "PLAN SPONSOR": Eskimo Pie Corporation, a Delaware corporation (or
its corporate successor).
1.20 "PLAN YEAR": A year commencing upon the first day of January of each
year.
1.21 "RABBI TRUST": A trust fund described in paragraph 3.4 and
established or maintained in whole or in part for the Plan.
1.22 "SALARIED EMPLOYEE": Any common law employee of the Employer
(exclusive of any Affiliate which is not a participating employer unless
otherwise expressly provided) who is employed on a salaried basis.
1.23 "SALARIED RETIREMENT PLAN": The Eskimo Pie Corporation Salaried
Retirement Plan, which a defined benefit pension plan maintained by the Plan
Sponsor and intended to be qualified under Section 401 of the Code.
1.24 "SPOUSE": For the purpose of qualifying to receive survivor annuity
benefits under the Plan, an individual to whom a Participant was married:
(i) On his Annuity Starting Date, or
(ii) If he has not reached his Annuity Starting Date, throughout the
one year period ending on his date of death.
The determination of the marital status of a Participant shall be made pursuant
to applicable local law.
1.25 "TRUSTEE": The trustee of a Rabbi Trust.
1.26 "YEAR OF BENEFIT SERVICE":
1.26(a) A Period of Service of one year as a Salaried Employee, excluding
all service before April 6, 1992. For purposes hereof, where a Period of Service
as a Salaried Employee is longer than one year, it shall be treated as that
number of Years of Benefit Service (and fractional part thereof) equal to the
whole number of years (and fractional part thereof) in such Period of Service.
1.26(b) If a Participant ceases to be an Eligible Employee but remains or
later becomes a Salaried Employee, his Years of Benefit Service taken into
account in applying the Benefit Formula shall include his service as a Salaried
Employee after he ceases to be an Eligible Employee.
1.27 "YEAR OF BROKEN SERVICE": A "Year of Broken Service" as defined in
the Salaried Retirement Plan.
1.28 "YEAR OF SERVICE": A "Year of Service" as defined in the Salaried
Retirement Plan, based on the applicable computation period stated when used in
the Plan.
1.29 "YEAR OF VESTING SERVICE": A "Year of Vesting Service" as defined
in the Salaried Retirement Plan.
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 ELIGIBILITY AND DATE OF PARTICIPATION.
2.1(a) Each Eligible Employee who has attained the age of twenty-one (21)
years prior to an Entry Date shall become a Participant on the earlier of the
following dates, provided he is then credited with at least one Year of
Eligibility Service:
(i) On the first Entry Date on which he is an Eligible Employee
following his completion of such age and service requirements.
(ii) If he is not an Eligible Employee on the first Entry Date
following his completion of such age and service requirements, on the
first day he thereafter becomes an Eligible Employee.
Notwithstanding the foregoing, each Employee who is an Eligible Employee at the
time of a "change in control" of the Plan Sponsor shall become a Participant in
the Plan as of the date for such change in control. For purposes hereof, the
term "change in control" means "Change in Control" as defined in the Plan
Sponsor's 1996 Incentive Stock Plan.
2.1(b) An individual who was, but ceased to be, a Participant shall again
be a Participant at the first to occur of the following:
(i) If and when he again becomes an Eligible Employee,
(ii) If all or part of his Accrued Benefit is considered cashed-out
and forfeited pursuant to paragraph 4.3, if and when the cashed-out amount
is reinstated pursuant thereto, or
(iii) If his forfeited Accrued Benefit is restored pursuant to
paragraph 6.4, if and when he again becomes an Employee.
2.1(c) An individual who becomes a Participant shall be or remain a
Participant for so long as he remains an Eligible Employee and thereafter while
he is entitled to future benefits under the terms of the Plan.
2.2 ELIGIBILITY SERVICE DEFINITIONS AND RULES. For purposes of this
ARTICLE II, the following terms shall have the following meanings:
2.2(a) The term "Entry Date" means the Effective Date of the Plan and
thereafter the first day of each calendar month of each Plan Year.
Notwithstanding the foregoing, the first Entry Date with respect to an Employee
of an Employer which adopts the Plan as a participating employer as of a date
after the Effective Date of the Plan shall be the Effective Date of the adoption
of the Plan as to such Employer. Additional Entry Dates may be provided in a
participating employer's adoption agreement.
2.2(b) The term "Year of Eligibility Service" means a Year of Eligibility
Service (as defined in the Salaried Retirement Plan).
ARTICLE III
FUNDING
3.1 FUNDING.
3.1(a) The undertaking to pay benefits hereunder shall be an unfunded
obligation payable solely from the general assets of the Employer and subject to
the claims of the Employer creditors. Each Participant, his Beneficiary and any
other person having or claiming a right to payment hereunder or to any interest
under the Plan shall rely solely on the unsecured promise of the Employer to
make payments due hereunder. Each Participant, his Beneficiary, and any other
person having or claiming a right to payments under the Plan shall have the
right to enforce such claim against the Employer in the same manner as an
unsecured creditor of the Employer. Nothing contained in this subparagraph shall
be deemed to create a trust of any kind.
3.1(b) Except as provided in a Rabbi Trust established as provided in
paragraph 3.4, nothing contained in the Plan and no action taken pursuant to the
provisions of the Plan shall create or be construed to create a trust of any
kind or a fiduciary relationship between the Employer and the Participant or his
Beneficiary or any other person or to give any Participant or Beneficiary any
right, title or interest in any specific asset or assets of the Employer. To the
extent that any person acquires a right to receive payments from the Employer
under the Plan, such rights shall be no greater than the right of any unsecured
general creditor of the Employer.
3.2 PLAN COSTS AND EXPENSES. All costs of benefits under and expenses of
the Plan, including reasonable legal, accounting, and other fees and expenses
incurred in the establishment, amendment, administration and termination of the
Plan and the compensation of the fiduciaries of the Plan to the extent provided
under the Plan, shall be paid by the Employer, whether directly from their
general assets or by contributions to a Rabbi Trust, in such manner and
proportions as the Plan Sponsor shall determine.
3.3 NO INTEREST OR RIGHT OTHER THAN PLAN BENEFIT. Nothing contained herein
shall be deemed to give any Participant or Beneficiary any interest in any
specific part of the assets of the Employer, any rights to interest in the
assets of a Rabbi Trust, or any legal or equitable rights other than his right
to receive benefits in accordance with the provisions of the Plan.
3.4 RABBI TRUST.
3.4(a) Notwithstanding the foregoing provisions of this ARTICLE III, the
Plan Sponsor may in its sole discretion establish or participate in and fund a
Rabbi Trust for the purpose of providing benefits under the Plan. It is
generally intended that the assets of any Rabbi Trust would be subject to the
claims of the creditors of the Employer.
3.4(b) If a Rabbi Trust is established or maintained for the Plan,
payments from the Rabbi Trust shall be made as directed by the Plan Sponsor or,
if the Rabbi Trust so provides by the Administrator in accordance with the
applicable terms and provisions of the Plan (in which latter case procedural
provisions of the Plan, other than this subparagraph, pertaining to the giving
of payment instructions by the Plan Sponsor shall be read to mean the giving of
payment instructions by the Administrator).
ARTICLE IV
DETERMINATION OF ACCRUED BENEFIT
4.1 ACCRUED BENEFIT.
4.1(a) The Accrued Benefit of a Participant shall be an amount, expressed
in the form of a single life annuity payable monthly for the life of the
Participant, commencing upon his Normal Retirement Date or as otherwise provided
in this paragraph 4.1, and equal to the amount determined under the Benefit
Formula, calculated as follows:
(i) A Participant who retires on his Normal Retirement Date shall
be entitled to his Accrued Benefit calculated under the Benefit Formula to
his Normal Retirement Date.
(ii) A Participant whose employment with the Employer terminates
after his Normal Retirement Date shall be entitled to an Accrued Benefit
commencing on his Delayed Retirement Date (or, where applicable, his other
benefit commencement date determined as though he had separated from
service and had a Delayed Retirement Date) equal to the sum of:
(A) His Accrued Benefit calculated under the Benefit Formula
to his Normal Retirement Date, and
(B) The sum of the greater, determined for each Plan Year
(or portion thereof) ending after his Normal Retirement Date, of:
(I) The excess, if any, of (a) his Accrued Benefit
calculated under the Benefit Formula as of the end of such
Plan Year (or if earlier and as applicable, his Delayed
Retirement Date or his other benefit commencement date
determined as though he had separated from service and had a
Delayed Retirement Date) over (b) his Accrued Benefit
calculated as of the end of the immediately preceding Plan
Year (or his Normal Retirement Date, if later), or
(II) The excess, if any, of (a) the Actuarial Equivalent
of his Accrued Benefit calculated under the Benefit Formula
as of the end of the immediately preceding Plan Year (or his
Normal Retirement Date, if later), where the Actuarial
Equivalent adjustment is determined as of the end of such
Plan Year (or, where applicable, his Delayed Retirement Date
or his other benefit commencement date determined as though
he had separated from service and had a Delayed Retirement
Date) over (b) his Accrued Benefit calculated as of the end
of the immediately preceding Plan Year (or his Normal
Retirement Date, if later).
(iii) A Participant who retires on his Early Retirement Date shall be
entitled to his Accrued Benefit calculated under the Benefit Formula to
his Early Retirement Date.
(iv) The Accrued Benefit of each other Participant shall be
calculated under the Benefit Formula as of the applicable date for which
such determination is made.
4.1(b) For purposes hereof:
(i) An Participant's "Average Compensation" is the average of his
Compensation for the five (5) consecutive Plan Years within the last ten
(10) Plan Years prior to the date as of which his Accrued Benefit is
determined (or if earlier, when he last is a Salaried Employee), during
each of which he has Compensation and is credited with a full Year of
Service as a Salaried Employee (with the Plan Year as the computation
period) and which produce the highest average or, if they are less than
five (5) such consecutive Plan Years, for all Plan Years during each of
which he has Compensation and is credited with a full Year of Service as a
Salaried Employee (based on the Plan Year). Plan Years shall be deemed to
be consecutive even though interrupted by one or more Plan Years for each
of which the Employee had no Compensation or was not credited as a
Salaried Employee with a full Year of Service (based on the Plan Year).
Average Compensation shall be rounded to the nearest whole dollar.
(ii) The "Benefit Formula" with respect to a Participant, is the
excess, if any, of:
(A) The greater of:
(I) One-twelfth (1/12) of the product obtained by
multiplying one and one-half percent (1-1/2%) of the
Participant's Average Compensation by his Years of Benefit
Service, or
(II) The product obtained by multiplying Thirty-Six
Dollars ($36) by the Participant's Years of Benefit Service,
over
(B) The Actuarial Value of the Participant's "Accrued
Benefit" under the Salaried Retirement Plan.
4.2 ACCRUED BENEFIT SERVICE RULES. For purposes of determining the Accrued
Benefit of a Participant under paragraph 4.1, all Years of Benefit Service shall
be included.
4.3 EFFECT OF CERTAIN CASH-OUTS ON ACCRUED BENEFIT.
4.3(a) In the case of a Participant who has ceased to be an Employee and
who has received not later than one year after he incurs a Year of Broken
Service either:
(i) A distribution of the Actuarial Value of his entire
non-forfeitable Accrued Benefit which includes an amount not exceeding
$20,000 and representing the Actuarial Value of his entire non-forfeitable
Accrued Benefit derived from contributions by the Employer at the time of
such distribution, or
(ii) A distribution which he voluntarily elects to receive and which
represents all or a portion of the Actuarial Value of his non-forfeitable
Accrued Benefit at the time of such distribution,
the Accrued Benefit (including any Top Heavy Minimum Benefit) of such
Participant which is derived from contributions by the Employer shall be
determined at any time thereafter without regard to his service with respect to
which such distribution was made.
4.3(b) If a Participant who has no non-forfeitable interest in his Accrued
Benefit ceases to be an Employee, he shall be deemed to have had his Accrued
Benefit cashed-out pursuant to the provisions of subparagraph 4.3(a) and his
Accrued Benefit shall be forfeited. If a Participant who is affected by the
provisions of this subparagraph again becomes an Employee before he incurs five
(5) consecutive Years of Broken Service commencing after the date of the deemed
distribution and forfeiture (but in no event after the date of termination of
the Plan), his forfeited Accrued Benefit shall be restored.
4.4 NO DUPLICATION OF BENEFITS. Notwithstanding any other provision of the
Plan, the total Actuarial Value of the Accrued Benefit which may be earned by
any Participant shall not exceed the Actuarial Value of his Accrued Benefit
under the Plan, calculated without regard to any prior distributions of his
Accrued Benefit, and then reduced by the Actuarial Value of any prior
distributions not repaid to the Plan.
ARTICLE V
RETIREMENT DATES
5.1 NORMAL RETIREMENT DATE. The Normal Retirement Date of a Participant
shall be the first day of the calendar month coinciding with or next following
the date on which the Participant attains his Normal Retirement Age.
5.2 DELAYED RETIREMENT DATE. A Participant who continues in the active
employment of the Employer beyond his Normal Retirement Date shall continue to
participate in the Plan, and his Delayed Retirement Date shall be the first day
of the calendar month coinciding with or next following the date of termination
of his employment with the Employer.
5.3 EARLY RETIREMENT DATE. A Participant who has attained the age of
fifty-five (55) years or more while a Salaried Employee or Disabled (as provided
in paragraph 5.4) and has completed at least ten (10) Years of Vesting Service
as determined for vesting purposes under paragraph 6.3 may retire from the
employment of the Employer prior to his Normal Retirement Date and his Early
Retirement Date shall be the first day of the calendar month coinciding with or
next following the date of such retirement.
5.4 DISABILITY AND RETIREMENT, DEATH OR SEPARATION AFTER DISABILITY.
5.4(a) If a Participant becomes Disabled, the determination of the
Participant's Accrued benefit and Death Benefit, as applicable, shall be subject
to the special rules contained in this paragraph.
5.4(b) For purposes hereof:
(i) With respect to a Participant, the existence of a "Disability"
or the status of being "Disabled" shall be determined by reference to the
standards and definitions of the terms "Disability" and "Disabled" as used
in the Salaried Retirement Plan.
(ii) The Administrator shall have the right to require proof of
continuing Disability.
(iii) Failure by the Participant to provide such evidence as may from
time to time be required by the Administrator prior to such Participant's
attainment of his Normal Retirement Date shall result in the
discontinuance of his Disability status and the termination of his status
as Disabled under the Plan.
(iv) The determination of Disability shall be made by the
Administrator in accordance with standards uniformly applied to all
Participants, on the advice of one or more physicians appointed or
approved by the Plan Sponsor if deemed necessary or advisable by the
Administrator, and the Administrator shall have the right to require
further medical examinations from time to time to determine whether there
has been any change in the Participant's physical condition.
5.4(c) If the period of a Participant's Disability continues until his
Normal Retirement Date, the Participant shall be considered for purposes of the
Plan to have retired on such date and to be entitled to his Accrued Benefit
determined in accordance with paragraph 4.1 as a Participant who retires on his
Normal Retirement Date.
5.4(d) If the period of a Participant's Disability ceases before the
Participant's Normal Retirement Date but after the later of the Participant's
attainment of the age of fifty-five (55) years or completion of ten (10) Years
of Vesting Service as determined for vesting purposes under paragraph 6.3, other
than by reason of the Participant's death, and the Participant does not return
to active employment with the Employer, the Participant shall be considered for
purposes of the Plan to have retired with the first day of the month thereafter
as his Early Retirement Date and to be entitled to his Accrued Benefit
determined in accordance with paragraph 4.1 as a Participant who retires on his
Early Retirement Date.
5.4(e) If the period of a Participant's Disability ceases before the later
of the Participant's attainment of the age of fifty-five (55) years or
completion of ten (10) Years of Vesting Service as determined for vesting
purposes under paragraph 6.3, and the Participant does not return to active
employment with the Employer, the Participant's entitlement to his Accrued
Benefit shall be determined as though he terminated employment with the Employer
at such time.
5.4(f) If the period of a Participant's Disability ceases by reason of his
death, the only benefit payable under the Plan shall be the Pre-Retirement
Spouse's Death Benefit, if any, to which his Spouse is entitled.
ARTICLE VI
VESTING
6.1 VESTING AT ATTAINMENT OF NORMAL RETIREMENT AGE. The Accrued Benefit of
a Participant shall be fully vested and non-forfeitable upon the Participant's
having attained his Normal Retirement Age while employed by the Employer or
while Disabled (as provided in paragraph 5.4).
6.2 VESTING IN ACCRUED BENEFIT AT OTHER TIMES. At any time when a
Participant is not fully vested in his Accrued Benefit under paragraph 6.1, he
shall have a non-forfeitable interest in a percentage of his Accrued Benefit
derived from contributions by the Employer depending upon the number of Years of
Vesting Service with which he is credited at such time in accordance with the
schedule below:
YEARS OF VESTING SERVICE NON-FORFEITABLE PERCENTAGE
Less than 5 0%
5 or more 100%
Notwithstanding the foregoing, a Participant (including those for whom immediate
commencement of participation in the Plan is provided under subparagraph 2.1(a)
as a result of a "change in control" of the Plan Sponsor) who is an Employee at
the time of a "change in control" of the Plan Sponsor shall have a 100%
non-forfeitable interest in his Accrued Benefit. For purposes hereof, the term
"change in control" means "Change in Control" as defined in the Plan Sponsor's
1996 Incentive Stock Plan.
6.3 VESTING SERVICE RULES. For the purpose of computing a Participant's
non-forfeitable right to a percentage of his Accrued Benefit derived from
contributions by the Employer, all Years of Vesting Service shall be included.
6.4 FORFEITURE AND RESTORATION OF ACCRUED BENEFITS. A Participant's
Accrued Benefit in excess of his non-forfeitable Accrued Benefit shall be
forfeited by such Participant upon the first to occur of his ceasing to be an
Employee (or, if applicable, Disabled as provided in paragraph 5.4) or his
death; provided, however, that, subject to the provisions of the Plan requiring
prior service to be disregarded, any such forfeited Accrued Benefit of a
Participant shall be restored upon such individual's thereafter again becoming
an Employee prior to the date of any termination of the Plan with respect to
such Participant or Employee. In no event shall forfeited Accrued Benefits be
applied or used to increase the Accrued Benefit of any Participant.
6.5 NO REDUCTION IN CERTAIN VESTED ACCRUED BENEFITS BY REASON OF
RE-EMPLOYMENT. Notwithstanding any provisions hereof to the contrary, in the
case of a Participant who has a non-forfeitable interest in his Accrued Benefit
under the Plan and who separates from the service of the Employer whether by
retirement, disability or other termination, the dollar amount of his
non-forfeitable interest in his Accrued Benefit at the time of his separation
from service and the commencement of his benefit payments thereafter shall not
be reduced by reason of his re-employment (except as may be provided in the
event of a suspension or deferral of benefit payments pursuant to paragraph 8.6
hereof).
ARTICLE VII
DEATH BENEFITS
7.1 DEATH AFTER ANNUITY STARTING DATE. If a Participant dies after his
Annuity Starting Date, the only benefits payable under the Plan after his death
shall be those, if any, provided under the form of payment being made to him at
his death.
7.2 DEATH BEFORE ANNUITY STARTING DATE. If a Participant dies before his
Annuity Starting Date, no benefit shall be paid under the Plan except any Death
Benefit which may be provided under this ARTICLE VII.
7.3 PRE-RETIREMENT SPOUSE'S DEATH BENEFIT.
7.3(a) In the event that a Participant has a Spouse and dies before his
Annuity Starting Date at a time when he has a non-forfeitable interest in his
Accrued Benefit, then the Spouse of such Participant shall be entitled to
receive as a Death Benefit under the Plan (referred to as the "Pre-Retirement
Spouse's Death Benefit") a survivor annuity, expressed in the form of a single
life annuity payable monthly for the life of such Spouse commencing on the
Spouse's Earliest Commencement Date, equal to the Pre-Retirement Spouse's
Annuity if the Participant had died on the day following his Annuity Starting
Date under the appropriate one of the following assumptions:
(i) If the Participant dies after attaining his Earliest Retirement
Age, it shall be assumed both that he retired and that his Annuity
Starting Date occurred as of the first day of the month in which he died,
but the benefit payment amount of the Pre-Retirement Spouse's Death
Benefit shall be calculated as first day of the month immediately
following the month in which he died, or
(ii) If the Participant dies on or before attaining his Earliest
Retirement Age, it shall be assumed that he merely separated from the
service of the Employer on the date of his death but survived until his
Earliest Retirement Age which was also his Annuity Starting Date.
If the Participant was actually separated from the service of the Employer at
his death, such assumption shall not increase his or her Spouse's benefit
entitlement or accelerate the time of payment or the date which is the
Participant's Earliest Retirement Age.
7.3(b) For purposes hereof:
(i) A Participant's "Earliest Retirement Age" is the earliest date
under the Plan as of which he could elect to commence receiving his
Accrued Benefit, on the assumption that he had merely separated from the
service of the Employer on the date of his death and had continued to
survive.
(ii) A Spouse's "Earliest Commencement Date" is the first day of the
first month in which the Participant would have reached his Earliest
Retirement Age or, if he has already reached that date at his death, the
first day of the month immediately following the month in which the
Participant died.
(iii) The "Pre-Retirement Spouse's Annuity" means the survivor
annuity to which the Spouse would have been entitled under the Joint and
50% Spouse Survivor Annuity form of payment described in subparagraph
8.2(a).
7.4 BENEFICIARY DESIGNATION.
7.4(a) Subject to the rights of his Spouse to receive a survivor life
annuity under paragraph 8.2 or a Pre-Retirement Spouse's Death Benefit under
subparagraph 7.3 (for which purposes the Participant's Spouse shall be
considered a Beneficiary) and the right of his Spouse to consent to specific
non-spouse Beneficiaries, if any, under subparagraph 8.6(b), each Participant
shall have the right to notify the Administrator in writing of any designation
of a Beneficiary to receive, if alive, benefits under the Plan in the event of
his death. Such designation may be changed from time to time by notice in
writing to the Administrator, subject where specifically required to consent by
his Spouse.
7.4(b) If a Participant dies without having designated a Beneficiary, or
if the Beneficiary so designated has predeceased the Participant or, except when
his Beneficiary is his Spouse entitled to a survivor life annuity or
Pre-Retirement Spouse's Death Benefit, cannot be located by the Administrator
within one year after the date when the Administrator commenced making a
reasonable effort to locate such Beneficiary, then his surviving spouse, or if
none, then his descendants, per stirpes, or if none, then the executor or the
administrator of his estate shall be deemed to be his Beneficiary.
7.4(c) Any Beneficiary designation may include multiple, contingent or
successive Beneficiaries and may specify the proportionate distribution to each
Beneficiary. If a Beneficiary shall survive the Participant, but shall die
before the entire benefit payable to such Beneficiary has been distributed, then
absent any other provision by the Participant, the unpaid amount of such benefit
shall be distributed to the estate of the deceased Beneficiary. If multiple
Beneficiaries are designated, absent provisions by the Participant, those named
or the survivors of them shall share equally any benefits payable under the
Plan. Any Beneficiary, including the Participant's spouse, shall be entitled to
disclaim any benefit otherwise payable to him under the Plan.
ARTICLE VIII
PAYMENT OF BENEFITS
8.1 TIME OF PAYMENT.
8.1(a) The non-forfeitable Accrued Benefit of a Participant shall become
payable to the Participant, if then alive, at the earliest of the following
applicable times:
(i) The Participant's Normal or Delayed Retirement Date on which he
retires under the Plan.
(ii) The Participant's Normal Retirement Date if he is not then an
Employee for reasons other than death.
(iii) The April 1 immediately following the calendar year in which
occurs the date on which the Participant attains the age of seventy and
one-half (70-1/2). Thereafter, such Participant's Accrued Benefit
attributable to active participation in the Plan for Plan Years ending
after the calendar year in which he attains the age of seventy and
one-half (70-1/2) shall commence as of the January immediately following
each such Plan Year.
(iv) The first day of any calendar month designated by the
Participant if he is neither an Employee nor Disabled (as provided in
paragraph 5.4), which date shall not be earlier than:
(A) His Early Retirement Date, nor later than his Normal
Retirement Date, if the Participant retires on his Early
Retirement Date, or
(B) The date on which the Participant attains the age
required for Early Retirement, nor later than his Normal
Retirement Date, if the Participant has satisfied the service
requirement for Early Retirement.
In order for payment to begin, the Participant must file a written
application therefor with the Administrator no later than thirty (30) days
(or such other date as the Administrator may determine or permit on a
uniform and non-discriminatory basis) before such designated date.
8.1(b) The Pre-Retirement Spouse's Death Benefit with respect to a
Participant shall become payable to his Spouse at the following applicable time:
(i) The date which would have been the Participant's Normal
Retirement Date, if he dies before then.
(ii) The date which would have been the Participant's next available
Delayed Retirement Date, if he dies on or after his Normal Retirement
Date.
(iii) The first day of any calendar month coinciding with or
following the Participant's Spouse's Earliest Commencement Date (as
determined pursuant to subparagraph 7.3(b)), if his Spouse requests in
writing payment in annuity form at that time and if earlier than the time
for payment otherwise provided under this subparagraph. Any such request
shall be filed with the Administrator at least thirty (30) days (or such
other date as the Administrator may determine or permit on a uniform and
non-discriminatory basis) before the date such Death Benefit is requested
to be paid.
8.1(c) Notwithstanding the foregoing provisions of this paragraph, payment
may be delayed for a reasonable period of time in the event the recipient cannot
be located or is not competent to receive the benefit payment, there is a
dispute as to the proper recipient of such benefit payment, additional time is
needed to calculate the Accrued Benefit or Death Benefit, or additional time is
necessary to properly explain the recipient's options.
8.2 FORM OF ACCRUED BENEFIT PAYMENT. A Participant shall be paid the
non-forfeitable Accrued Benefit to which he is entitled in one of the forms
hereafter provided in this paragraph 8.2, commencing as provided in paragraph
8.1, and having the same Actuarial Value as the form stated in subparagraph
4.1(a).
8.2(a) Accrued Benefit payments to a Participant who has a Spouse shall be
in the form of a joint and survivor annuity which provides for the payment to
the Participant entitled thereto of equal monthly amounts on the first day of
each calendar month during his lifetime and continuing thereafter for the
lifetime of his Spouse at the rate of fifty percent (50%) of such monthly
amounts payable to the Participant. This annuity is sometimes referred to herein
as a "Joint and 50% Spouse Survivor Annuity".
8.2(b) Accrued Benefit payments to a Participant who does not have a
Spouse shall be in the form of a single annuity for the life of the Participant,
payable in equal monthly amounts on the first day of each calendar month during
the lifetime of such Participant. This annuity is sometimes referred to herein
as a "Single Life Annuity".
8.2(c) Each Participant shall have the right to elect in accordance with
the provisions of subparagraph 8.6(c) and, except in the case of a Joint and 75%
or 100% Spouse Survivor Annuity described in clause (iii) below, with the
consent of his Spouse (where necessary as determined under subparagraph 8.6(b)),
in lieu of the normal form of benefit provided in subparagraph 8.2(a) or (b), to
receive his non-forfeitable Accrued Benefit in one of the following optional
forms:
(i) The Single Life Annuity for the life of the Participant
described in subparagraph 8.2(b).
(ii) A single annuity for the life of the Participant payable in
equal monthly amounts on the first day of each calendar month during the
lifetime of the Participant, but with one hundred twenty (120) monthly
payments guaranteed and with any portion of the unpaid guaranteed payments
at the Participant's death payable as a continuing term certain annuity to
his Beneficiary. This annuity is sometimes referred to herein as a
"Ten-Year Certain and Life Annuity".
(iii) A joint and survivor annuity in the form described in
subparagraph 8.2(a), but continuing as a survivor annuity for the life of
the Participant's Spouse at (A) seventy-five percent (75%) or (B) one
hundred percent (100%) of the amount of each monthly payment to the
Participant. These annuities are sometimes referred to herein as a "Joint
and 75% Spouse Survivor Annuity" and a "Joint and 100% Spouse Survivor
Annuity", respectively.
8.2(d) If payment commences to a Participant pursuant to the requirements
of clause (iii) of subparagraph 8.1(a) on account of the Participant's
attainment of the age of seventy and one-half (70-1/2), the following rules
shall apply:
(i) If the Participant has terminated employment with the Employer
by such April 1, the amount payable shall be calculated as of the
Participant's termination of employment.
(ii) If the Participant has not terminated employment with the
Employer by such April 1, the amount payable shall be calculated as of the
immediately preceding December 31.
(iii) Thereafter, such Participant's additional Accrued Benefit
attributable to active participation in the Plan for Plan Years ending in
or after the calendar year in which the Participant's benefit payment
begins shall be calculated as of the December 31 immediately preceding the
January 1 as of which such additional benefit will commence to be paid.
8.3 FORM OF DEATH BENEFIT PAYMENT. The Pre-Retirement Spouse's Death
Benefit shall be paid in the form of a single annuity for the life of the Spouse
entitled thereto payable in equal monthly amounts on the first day of each
calendar month during the lifetime of the Spouse, commencing as provided in
paragraph 8.1 and having the same Actuarial Value as the form stated in
subparagraph 7.3(a).
8.4 BENEFIT CASH-OUT.
8.4(a) Notwithstanding the time and form of payment provided for elsewhere
in this ARTICLE VIII and in lieu of payment pursuant to paragraph 8.2 (but only
at or prior to the time the benefit would otherwise commence to be paid
thereunder), the Actuarial Value of the non-forfeitable Accrued Benefit of a
Participant (determined as of the date of termination of employment or required
benefit commencement) shall be paid in the form of a lump sum in cash (a
"cash-out") as soon as reasonably practicable (generally during the last month
of each Plan Year) after the Participant's termination of employment with the
Employer or, if earlier, any required time for benefit commencement under
subparagraph 8.1(a) if the Actuarial Value of such Participant's entire
non-forfeitable Accrued Benefit does not, and did not at the time of any prior
payment thereof, exceed $20,000.
8.4(b) Notwithstanding the time and form of payment provided for elsewhere
in this ARTICLE VIII and in lieu of payment pursuant to paragraph 8.3 (but only
at or prior to the time the benefit would otherwise commence to be paid
thereunder), the Actuarial Value of the Pre-Retirement Spouse's Death Benefit
with respect to a Participant (determined as of the date of the Participant's
death) shall be paid in the form of a lump sum in cash (a "cash-out") as soon as
reasonably practicable (generally during the last month of each Plan Year) after
the Participant's death if the Actuarial Value of the Pre-Retirement Spouse's
Death Benefit with respect to such Participant does not exceed $20,000.
8.5 NOTICE, ELECTION AND CONSENT REGARDING ACCRUED BENEFIT PAYMENT. Any
election authorized by subparagraph 8.2(c) and any designation or consent to a
date for payment by a Participant shall be in writing, shall clearly indicate
the election or designation being made or the consent being given, and shall be
filed with the Administrator within the time and in accordance with the
procedures provided in the following subparagraphs to this paragraph.
8.5(a) Within a reasonable time (generally not more than ninety (90) nor
less than thirty (30) days) before a Participant's Annuity Starting Date, the
Administrator shall by mail or personal delivery provide the Participant with a
written explanation of:
(i) The terms and conditions of the applicable forms of payment,
including his normal form of payment under subparagraph 8.2(a) or (b), as
the case may be, and including the relative financial effects of the
applicable forms of payment,
(ii) The Participant's right to make, and the effect of, an election
to waive his normal form of payment under subparagraph 8.2(a) or (b), as
the case may be, by electing another form of payment for his Accrued
Benefit,
(iii) The rights of the Participant's Spouse regarding any such
election as provided in subparagraph 8.5(b),
(iv) The Participant's right to make, and the effect of, a
revocation of an election to waive his normal form of payment under
subparagraph 8.2(a) or (b), as the case may be, and
(v) The Participant's right to delay receipt of his non-forfeitable
Accrued Benefit until such later date allowed under paragraph 8.1,
including the right to modify or revoke any election thereunder.
8.5(b) Any election by a Participant regarding the form of his benefit
payment where consent by his Spouse is specifically required shall be subject to
the following rules:
(i) Such election shall not be given effect unless either:
(A) The Participant's Spouse consents in writing thereto and
the Spouse's consent acknowledges the effect of such election and
is witnessed by a representative of the Plan or a notary public
(or the equivalent) or both if required by the Administrator, or
(B) It is established to the satisfaction of the
Administrator that such consent may not be obtained because there
is no Spouse, because the Spouse cannot be located, because the
Participant has been abandoned by the Spouse (which fact shall be
determined under applicable law and evidenced by a court order so
specifying), or because of such other circumstances as may be
provided under Section 417(a)(2)(B) of the Code.
For purposes hereof, a representative of the Plan is any officer of the
Employer, the Administrator or any other person designated as such in
writing by any of the foregoing.
(ii) If a Spouse consents to a Participant's election, such consent
regarding a form of payment under which benefits could be paid to the
Participant's Beneficiary shall either be in the form of:
(A) A limited consent which acknowledges the specific
non-spouse Beneficiary or class of non-spouse Beneficiaries
(including any multiple, contingent or successive Beneficiary or
class of Beneficiaries), if any, and the applicable form(s) of
payment under the Plan (including the form of payment to the
Beneficiary), or
(B) If permitted by the Administrator on a uniform and
non-discriminatory basis, a general consent which acknowledges
the Spouse's right (and awareness thereof) to limit consent only
to a specific Beneficiary or class of Beneficiaries or a specific
form of payment (if there is more than one) and in which the
Spouse voluntarily elects to relinquish one or both of such
rights.
(iii) If a Spouse consents to a Participant's election, any change
(other than a timely revocation by the Participant of an election
regarding the form of payment of his Accrued Benefit or a change to a form
of payment that does not require a spousal consent) by the Participant to
his Beneficiary designation or the form of payment to his Beneficiary
shall require the further consent of his Spouse in accordance with the
applicable provisions of this subparagraph (unless the Spouse has given a
general consent which expressly permits changes therein by the Participant
without any requirement of further consent by the Spouse).
(iv) Any such consent by a Spouse may not be revoked by such Spouse
but shall be automatically revoked in connection with a revocation or
election or consent change by the Participant.
(v) Any such consent by a Spouse, or the establishment that the
consent of a Spouse need not be obtained, shall be effective only with
respect to such Spouse.
8.5(c) A Participant's designation of, consent to or election of payment
before his Normal Retirement Date under paragraph 8.1 and his election
authorized by subparagraph 8.2(c) (together with any necessary consent by his
Spouse) must be filed with the Administrator during the ninety (90) day period
ending on his Annuity Starting Date and no later than thirty (30) days (or such
other date as the Administrator may determine or permit on a uniform and
non-discriminatory basis) before his Annuity Starting Date. If the written
explanation required by subparagraph 8.5(a) is not provided to the Participant
at least thirty (30) days before the scheduled Annuity Starting Date, the
Annuity Starting Date may be deferred by the Administrator until at least thirty
(30) days after the written explanation is provided. Such election may be
revoked in writing during such election period, and another election may be made
during such election period, at any time and any number of times.
8.5(d) If a Participant elects an optional form of payment under
subparagraph 8.2(c) and dies before his Annuity Starting Date, the elected form
of payment shall not be given effect and no benefit under the Plan shall be
payable with respect to the Participant except the Death Benefit as may be
provided under ARTICLE VII.
8.5(e) If a Participant elects an optional form of payment under
subparagraph 8.2(c) which provides for a life annuity to a contingent annuitant
after his death and if the contingent annuitant dies before the Participant's
Annuity Starting Date, such optional form of payment shall not be given effect
and such Participant's Accrued Benefit shall be paid in the form otherwise
applicable to or subsequently elected by him.
8.6 SPECIAL RULES FOR BENEFITS ON RE-EMPLOYMENT OR CONTINUED
EMPLOYMENT AFTER NORMAL RETIREMENT AGE.
8.6(a) Notwithstanding any other provision of the Plan:
(i) If a Participant is re-employed by the Employer during any Plan
Year, benefit payments to which he is then entitled and being paid shall
continue to be paid as if he were not so re-employed. Such Participant
shall be considered to become a new Participant in the Plan immediately on
his re-employment as a Salaried Employee and shall be treated as a new
Participant with respect to any additional Accrued benefit he earns. Upon
such Participant's subsequent death, retirement, other termination of
employment with the Employer or required commencement of benefits while
employed by the Employer, such Participant's additional non-forfeitable
Accrued Benefit or Death Benefit, as the case may be, shall be determined
and paid as though he were a new Participant with respect to such period
of re-employment.
(ii) If a Participant is re-employed by the Employer during any Plan
Year, benefit payments to which he is not then being paid shall not
commence to be paid until his subsequent cessation of employment or as
otherwise required under clause (iii) of subparagraph 8.1(a).
(iii) If a Participant continues in the employment of the Employer at
a time when his benefits under the Plan are required to be in pay status
by reason of clause (iii) of subparagraph 8.1(a), his benefits under the
Plan with respect to his prior employment and payment thereof shall not be
affected by such continued employment, but any additional benefit under
the Plan to which he may be entitled by reason of such continued
employment shall be added to his previously earned benefits as of the end
of each Plan Year in which the same is accrued and shall thereafter be
paid in the same manner and at the same time as his benefits earned with
respect to his prior employment.
8.6(b) Notwithstanding any other provision of the Plan, if a Participant
continues in the employment of the Employer after his Normal Retirement Date,
his benefit entitlement shall be subject to the following rules:
(i) Benefit payments to which such Participant is entitled under the
Plan if he had terminated employment with the Employer and which are not
then in pay status shall be deferred, and the amounts otherwise payable
during such continued employment shall be forfeited, during the period of
such employment.
(ii) Upon such Participant's subsequent death, retirement, other
termination of employment with the Employer or commencement of benefits
while employed by the Employer, such Participant's non-forfeitable Accrued
Benefit or Death Benefit, as the case may be, shall be commenced in the
form then applicable or elected (subject to appropriate actuarial
adjustment, if any, and to increase in the same for any additional
benefits earned under the Plan).
8.7 BENEFIT DETERMINATION AND PAYMENT PROCEDURE.
8.7(a) The Administrator shall promptly notify the Plan Sponsor and, where
payments are to be made from a Rabbi Trust, the Trustee thereof of each such
determination that benefit payments are due or should cease to be made and
provide to the Plan Sponsor and, where applicable, such Trustee all other
information necessary to allow the Employer or such Trustee, as the case may be,
to carry out said determination, whereupon the Employer or such Trustee, as the
case may be, shall pay or cease to pay or cause to be paid, or cause to cease to
be paid, such benefits in accordance with the Administrator's determination.
8.7(b) Benefit payment due to the Participant or his Beneficiary, in the
event of the death of the Participant, shall be determined as of the Annuity
Starting Date. Any payments actually commencing more than two (2) months after
the Annuity Starting Date shall bear interest for each whole month during which
not paid at the applicable interest rate used for determining the Actuarial
Equivalent of the Accrued Benefit under the Plan.
8.8 CLAIMS PROCEDURE.
8.8(a) A Participant or Beneficiary (the "claimant") shall have the right
to request any benefit under the Plan by filing a written claim for any such
benefit with the Administrator on a form provided by the Administrator for such
purpose. The Administrator shall give such claim due consideration and shall
either approve or deny it in whole or in part. Within ninety (90) days following
receipt of such claim by the Administrator, notice of any approval or denial
thereof, in whole or in part, shall be delivered to the claimant or his duly
authorized representative or such notice of denial shall be sent by mail to the
claimant or his duly authorized representative at the address shown on the claim
form or such individual's last known address. The aforesaid ninety (90) day
response period may be extended to one hundred eighty (180) days after receipt
of the claimant's claim if special circumstances exist and if written notice of
the extension to one hundred eighty (180) days indicating the special
circumstances involved and the date by which a decision is expected to be made
is furnished to the claimant within ninety (90) days after receipt of the
claimant's claim. Any notice of denial shall be written in a manner calculated
to be understood by the claimant and shall:
(i) Set forth a specific reason or reasons for the denial,
(ii) Make specific reference to the pertinent provisions of the Plan
on which any denial of benefits is based,
(iii) Describe any additional material or information necessary for
the claimant to perfect the claim and explain why such material or
information is necessary, and
(iv) Explain the claim review procedure of subparagraph 8.8(b).
If a notice of approval or denial is not provided to the claimant within the
applicable ninety (90) day or one hundred eighty (180) day period, the
claimant's claim shall be considered denied for purposes of the claim review
procedure of subparagraph 8.8(b).
8.8(b) A Participant or Beneficiary whose claim filed pursuant to
subparagraph 8.8(a) has been denied, in whole or in part, may, within sixty (60)
days following receipt of notice of such denial, or following the expiration of
the applicable period provided for in subparagraph 8.8(a) for notifying the
claimant of the decision on the claim if no notice of denial is provided, make
written application to the Administrator for a review of such claim, which
application shall be filed with the Administrator. For purposes of such review,
the claimant or his duly authorized representative may review Plan documents
pertinent to such claim and may submit to the Administrator written issues and
comments respecting such claim. The Administrator may schedule and hold a
hearing. The Administrator shall make a full and fair review of any denial of a
claim for benefits and issue its decision thereon promptly, but no later than
sixty (60) days after receipt by the Administrator of the claimant's request for
review, or one hundred twenty (120) days after such receipt if a hearing is to
be held or if other special circumstances exist and if written notice of the
extension to one hundred twenty (120) days is furnished to the claimant within
sixty (60) days after the receipt of the claimant's request for a review. Such
decision shall be in writing, shall be delivered or mailed by the Administrator
to the claimant or his duly authorized representative in the manner prescribed
in subparagraph 8.8(a) for notices of approval or denial of claims, and shall:
(i) Include specific reasons for the decision,
(ii) Be written in a manner calculated to be understood by the
claimant, and
(iii) Contain specific references to the pertinent Plan provisions on
which the decision is based.
The Administrator's decision made in good faith shall be final.
8.9 PAYMENTS TO MINORS AND INCOMPETENTS. If a Participant or Beneficiary
entitled to receive any benefits hereunder is a minor or is adjudged to be
legally incapable of giving valid receipt and discharge for such benefits, or is
deemed so by the Administrator, benefits will be paid to such person as the
Administrator may designate for the benefit of such Participant or Beneficiary.
Such payments shall be considered a payment to such Participant or Beneficiary
and shall, to the extent made, be deemed a complete discharge of any liability
for such payments under the Plan.
8.10 DISTRIBUTION OF BENEFIT WHEN DISTRIBUTEE CANNOT BE LOCATED. The
Administrator shall make all reasonable attempts to determine the identity
and/or whereabouts of a Participant or Participant's spouse entitled to a
survivor life annuity or Pre-Retirement Spouse's Death Benefit under the Plan or
a Participant's Beneficiary entitled to any other benefit under the Plan,
including the mailing by certified mail of a notice to the last known address
shown on the Employer's or the Administrator's records. If the Administrator is
unable to locate such a person entitled to benefits hereunder, or if there has
been no claim made for such benefits, the Employer shall continue to hold the
benefit due such person, subject to any applicable statute of escheats.
8.11 MINIMUM AMOUNT PAID MONTHLY. Notwithstanding any other provisions of
this ARTICLE VIII, monthly benefits equal to Ten Dollars ($10.00) or less need
not be paid monthly, but may be accumulated and paid annually on the last day of
each Plan Year.
ARTICLE IX
FIDUCIARIES
9.1 NAMED FIDUCIARIES AND DUTIES AND RESPONSIBILITIES. Authority to
control and manage the operation and administration of the Plan shall be vested
in the following, who, together with their membership, if any, shall be the
Named Fiduciaries under the Plan with those powers, duties, and responsibilities
specifically allocated to them by the Plan:
9.1(a) PLAN SPONSOR - The Plan Sponsor in connection with its fiduciary
obligations and rights under the Plan and any Rabbi Trust.
9.1(b) PLAN ADMINISTRATOR - The Plan Administrator named and serving as
provided in ARTICLE X hereof in connection with its fiduciary obligations and
rights under the Plan and any Rabbi Trust.
9.1(c) BOARD - The Board in connection with its fiduciary obligations and
rights under the Plan and any Rabbi Trust.
9.1(d) TRUSTEE - The Trustee in connection with its fiduciary obligations
and rights under the Plan and the Rabbi Trust.
9.2 LIMITATION OF DUTIES AND RESPONSIBILITIES OF NAMED FIDUCIARIES. The
duties and responsibilities, and any liability therefor, of the Named
Fiduciaries provided for in paragraph 9.1 shall be severally limited to the
duties and responsibilities specifically allocated to each such Named Fiduciary
in accordance with the terms of the Plan, and there shall be no joint duty,
responsibility, or liability among any such groups of Named Fiduciaries in the
control and management of the operation and administration of the Plan.
9.3 SERVICE BY NAMED FIDUCIARIES IN MORE THAN ONE CAPACITY. Any person or
group of persons may serve in more than one Named Fiduciary capacity with
respect to the Plan.
9.4 ALLOCATION OR DELEGATION OF DUTIES AND RESPONSIBILITIES BY NAMED
FIDUCIARIES. By written agreement filed with the Administrator and the Plan
Sponsor, any duties and responsibilities of any Named Fiduciary may be allocated
among Named Fiduciaries or may, with the consent of the Plan Sponsor, be
delegated to persons other than Named Fiduciaries. Any written agreement shall
specifically set forth the duties and responsibilities so allocated or
delegated, shall contain reasonable provisions for termination, and shall be
executed by the parties thereto.
9.5 ASSISTANCE AND CONSULTATION. A Named Fiduciary, and any delegate named
pursuant to paragraph 9.4, may engage agents to assist in its duties and may
consult with counsel, who may be counsel for the Employer, with respect to any
matter affecting the Plan or its obligations and responsibilities here- under,
or with respect to any action or proceeding affecting the Plan. All compensation
and expenses of such agents and counsel shall be paid or reimbursed by the
Employer.
9.6 INDEMNIFICATION. The Employer shall indemnify and hold harmless any
individual who is a Named Fiduciary or a member of a Named Fiduciary under the
Plan and any other individual to whom duties of a Named Fiduciary are delegated
pursuant to paragraph 9.4, to the extent permitted by law, from and against any
liability, loss, cost or expense arising from their good faith action or
inaction in connection with their responsibilities under the Plan.
ARTICLE X
PLAN ADMINISTRATION
10.1 APPOINTMENT OF PLAN ADMINISTRATOR. The Plan Sponsor may appoint one
or more persons to serve as the Plan Administrator (the "Administrator") for the
purpose of carrying out the duties specifically imposed on the Administrator by
the Plan, the Act and the Code. In the event more than one person is appointed,
the persons shall form an administrative committee for the Plan. The person or
committeemen serving as Administrator shall serve for indefinite terms at the
pleasure of the Plan Sponsor, and may, by sixty (60) days prior written notice
to the Plan Sponsor, terminate such appointment. The Plan Sponsor shall inform
the Trustee of any such appointment or termination and the Trustee may assume
that any person appointed continues in office until notified of any change.
10.2 PLAN SPONSOR AS PLAN ADMINISTRATOR. In the event that no
Administrator is appointed or in office pursuant to paragraph 10.1, the Plan
Sponsor shall be the Administrator.
10.3 COMPENSATION AND EXPENSES. Unless otherwise determined and paid by
the Employer (as directed by the Plan Sponsor), the person or committeemen
serving as the Administrator shall serve without compensation for service as
such. All expenses of the Administrator be paid from the Rabbi Trust as provided
therein or, if not paid from the Rabbi Trust, by the Employer (as directed by
the Plan Sponsor), provided no compensation shall be paid the Administrator from
the Rabbi Trust to the extent prohibited by the Code or the Act.
10.4 PROCEDURE IF A COMMITTEE. If the Administrator is a committee, it
shall appoint from its members a Chairman and a Secretary. The Secretary shall
keep records as may be necessary of the acts and resolutions of such committee
and be prepared to furnish reports thereof to the Plan Sponsor and, as needed,
to the Trustee. Except as otherwise provided, all instruments executed on behalf
of such committee may be executed by its Chairman or Secretary and the Trustee
may assume that such committee, its Chairman or Secretary are the persons who
were last designated as such to the Trustee in writing by the Plan Sponsor.
10.5 ACTION BY MAJORITY VOTE IF A COMMITTEE. If the Administrator is a
committee, its action in all matters, questions and decisions shall be
determined by a majority vote of its members qualified to act thereon. They may
meet informally or take any action without the necessity of meeting as a group.
10.6 APPOINTMENT OF SUCCESSORS. Upon the death, resignation or removal of
a person serving as, or on a committee which is, the Administrator, the Plan
Sponsor may, but need not, appoint a successor.
10.7 ADDITIONAL DUTIES AND RESPONSIBILITIES. The Administrator shall have
the following duties and responsibilities in addition to those expressly
provided elsewhere in the Plan:
10.7(a) The Administrator shall be responsible for the fulfillment of all
relevant reporting and disclosure requirements set forth in the Act and the
Code.
10.7(b) The Administrator shall maintain and retain necessary records
respecting administration of the Plan and matters upon which disclosure is
required under the Act and the Code.
10.7(c) The Administrator shall make any elections for the Plan under the
Act or the Code.
10.7(d) The Administrator shall provide to Participants and Beneficiaries
such notices and information as are required by the Plan, the Act and the Code.
10.7(e) The Administrator shall make all determinations regarding
eligibility for participation in and benefits under the Plan.
10.7(f) The Administrator shall have the right to settle claims against
the Plan and to make such equitable adjustments in a Participant's or
Beneficiary's rights or entitlements under the Plan as it deems appropriate in
the event an error or omission is discovered or claimed in the operation or
administration of the Plan.
10.8 POWER AND AUTHORITY.
10.8(a) The Administrator is hereby vested with all the power and
authority necessary in order to carry out its duties and responsibilities in
connection with the administration of the Plan, including the power to interpret
the provisions of the Plan. For such purpose, the Administrator shall have the
power to adopt rules and regulations consistent with the terms of the Plan.
10.8(b) The Administrator shall exercise its power and authority in its
discretion. It is intended that a court review of the Administrator's exercise
of its power and authority with respect to matters relating to claims for
benefits by, and to eligibility for participation in and benefits of,
Participants and Beneficiaries shall be made only on an arbitrary and capricious
standard.
10.9 AVAILABILITY OF RECORDS. The Employer and the Trustee shall, at the
request of the Administrator, make available necessary records or other
information they possess which may be required by the Administrator in order to
carry out its duties hereunder.
10.10 NO ACTION WITH RESPECT TO OWN BENEFIT. No Administrator who is a
Participant shall take any part as the Administrator in any discretionary action
in connection with his participation as an individual. Such action shall be
taken by the remaining Administrator, if any, or otherwise by the Plan Sponsor.
10.11 LIMITATION ON POWERS AND AUTHORITY. The Administrator shall have no
power in any way to modify, alter, add to or subtract from any provisions of the
Plan.
ARTICLE XI
AMENDMENT AND TERMINATION OF PLAN
11.1 AMENDMENT AND TERMINATION.
11.1(a) The Plan may be amended or terminated in whole or in part at any
time by action of the Board; provided, however, that neither the amount of the
non-forfeitable Accrued Benefit of a Participant nor the amount of any
non-forfeitable Death Benefit with respect to a Participant at the time of any
such amendment or termination shall be adversely affected thereby. Notice of
every amendment or termination of the Plan shall be given to each Participant
and Beneficiary of a deceased Participant, the Administrator and the Employer.
11.1(b) In the event of a termination or a partial termination of the
Plan, so much of the Plan as has been terminated shall be automatically amended
on the effective date of such termination by terminating additional benefit
accrual and by reducing or eliminating any incidental benefits, other than
non-forfeitable Death Benefits, of Participants and their Beneficiaries under so
much of the Plan as has terminated, but only if payment thereof has not
commenced or is not subject only to the expiration of a waiting period or
occurrence of death, to the fullest extent permitted by paragraph 11.1. Under no
circumstances shall all or any portion of the Accrued Benefit or Death Benefit
of any such Participant under the Plan, or the non-forfeitable percentage
thereof at the time of such termination, to the extent terminated be increased
by reason of continued service as an Employee with any Employer with respect to
which the Plan has been terminated, unless otherwise provided by the Board.
11.2 TERMINATION EVENTS WITH RESPECT TO EMPLOYERS OTHER THAN THE PLAN
SPONSOR. The Plan shall terminate with respect to any Employer other than the
Plan Sponsor, and such Employer shall automatically cease to be a participating
Employer in the Plan, upon the happening of any of the following events:
(i) Action by its Board or the Board terminating the Plan as to it
and specifying the date of such termination. Notice of such termination
shall be delivered to the Administrator and the Plan Sponsor.
(ii) Its ceasing to be an Affiliate.
11.3 EFFECT OF EMPLOYER MERGER, CONSOLIDATION OR LIQUIDATION.
Notwithstanding the foregoing provisions of this ARTICLE XI, the merger or
liquidation of any Employer into any other Employer or the consolidation of two
(2) or more of the Employers shall not cause the Plan to terminate with respect
to the merging, liquidating or consolidating Employers, provided that the Plan
has been adopted or is continued by and has not terminated with respect to the
surviving or continuing Employer.
ARTICLE XII
MISCELLANEOUS
12.1 HEADINGS. The headings in the Plan have been inserted for convenience
of reference only and are to be ignored in any construction of the provisions
hereof.
12.2 GENDER AND NUMBER. In the construction of the Plan, the masculine
shall include the feminine or neuter and the singular shall include the plural
and vice-versa in all cases where such meanings would be appropriate.
12.3 GOVERNING LAW. The Plan shall be construed, enforced and administered
in accordance with the laws of the Commonwealth of Virginia, and any federal law
preempting the same. Unless federal law specifically addresses the issue,
federal law shall not preempt applicable state law preventing an individual or
person claiming through him from acquiring property or receiving benefits as a
result of the death of a decedent where such individual caused the death.
12.4 EMPLOYMENT RIGHTS. Participation in the Plan shall not give any
Employee the right to be retained in the Employer's employ nor, upon dismissal
or upon his voluntary termination of employment, to have any right or interest
under the Plan other than as herein provided.
12.5 CONCLUSIVENESS OF EMPLOYER RECORDS. The records of the Employer with
respect to age, service, employment history, compensation, absences, illnesses
and all other relevant matters shall be conclusive for purposes of the
administration of the Plan.
12.6 RIGHT TO REQUIRE INFORMATION AND RELIANCE THEREON. The Employer and
Administrator shall have the right to require any Participant, Beneficiary or
other person receiving benefit payments to provide it with such information, in
writing, and in such form as it may deem necessary to the administration of the
Plan and may rely thereon in carrying out its duties hereunder. Any payment to
or on behalf of a Participant or Beneficiary in accordance with the provisions
of the Plan in good faith reliance upon any such written information provided by
a Participant or any other person to whom such payment is made shall be in full
satisfaction of all claims by such Participant and his Beneficiary; and any
payment to or on behalf of a Beneficiary in accordance with the provisions of
the Plan in good faith reliance upon any such written information provided by
such Beneficiary or any other person to whom such payment is made shall be in
full satisfaction of all claims by such Beneficiary.
12.7 ALIENATION AND ASSIGNMENT. Except as may be required by the Act, no
benefit hereunder shall be subject in any manner to alienation, sale,
anticipation, transfer, assignment, pledge, encumbrance, garnishment,
attachment, execution or levy of any kind.
12.8 NOTICES AND ELECTIONS. All notices required to be given in writing
and all elections required to be made in writing, under any provision of the
Plan, shall be invalid unless made on such forms as may be provided or approved
by the Administrator and, in the case of a notice or election by a Participant
or Beneficiary, unless dated and executed by the Participant or Beneficiary
giving such notice or making such election.
12.9 DELEGATION OF AUTHORITY. Whenever the Plan Sponsor or any Employer is
permitted or required to perform any act, such act may be performed by its Chief
Executive Officer, its President or its Board of Directors or by any person duly
authorized by any of the foregoing.
12.10 SERVICE OF PROCESS. The Administrator shall be the agent for service
of process on the Plan.
12.11 CONSTRUCTION. This Plan is created for the exclusive benefit of
Eligible Employees of the Employer and their Beneficiaries and shall be
interpreted and administered in a manner consistent with its being an unfunded
deferred compensation plan maintained for a select group of management or highly
compensated employees (sometimes referred to as a "top-hat" plan) described in
Sections 201(2), 301(a)(3) and 401(a)(1) of the Act.
ARTICLE XIII
ADOPTION OF THE PLAN
13.1 ADOPTION BY ADDITIONAL EMPLOYERS. Any corporation which is an
Affiliate and which, with the consent of the Board, desires to adopt the Plan,
may do so by executing an adoption agreement in a form authorized and approved
by such corporation's Board of Directors and the Board.
IN WITNESS WHEREOF, the Plan Sponsor, pursuant to the resolution duly
adopted by its Board of Directors, has caused its name to be signed to this Plan
by its duly authorized officer with its corporate seal hereunto affixed and
attested by its Secretary or Assistant Secretary, as of the day and year above
written.
ESKIMO PIE CORPORATION,
Plan Sponsor and participating Employer
By: ____________________________ (SEAL)
Its ___________________________
Attest:
___________________________
Its _____________________
ESKIMO PIE CORPORATION
EXECUTIVE RETIREMENT PLAN
APPENDIX A
(AS OF JANUARY 1, 1996)
LIST OF PARTICIPATING EMPLOYERS
EFFECTIVE DATE EFFECTIVE DATE
PLACE OF OF COMMENCEMENT OF TERMINATION
NAME INCORPORATION OF PARTICIPATION OF PARTICIPATION
Eskimo Pie Corporation Delaware April 6, 1992 ----
Sugar Creek Foods, Inc. Virginia January 1, 1996 ----
ESKIMO PIE CORPORATION
EXECUTIVE RETIREMENT PLAN
ADOPTION AGREEMENT
This ADOPTION AGREEMENT, executed the __ day of _____, 1995 by SUGAR CREEK
FOODS, INC., a Virginia corporation, (hereinafter referred to as the "Adopting
Employer") with the consent of the Board of Directors (the "Board") of ESKIMO
PIE CORPORATION ("Eskimo Pie"), a Delaware corporation, provides:
WHEREAS, Eskimo Pie maintains a defined benefit pension plan and trust in
the form of the Eskimo Pie Corporation Executive Retirement Plan under agreement
dated December 29, 1992, as amended (the "Plan"), which Plan permits
participation therein by other corporations with the approval of the Board; and
WHEREAS, the Adopting Employer is an affiliate of Eskimo Pie, is eligible
to adopt the Plan with the consent of the Board, and desires to evidence its
adoption of and participation in the Plan and the consent of the Board thereto.
NOW, THEREFORE, in consideration of the premises and of the mutual
undertakings contained in the Plan, which are hereby incorporated herein by
reference:
1. Adoption of the Plan. The Adopting Employer does hereby evidence its
adoption of the Plan as a participating employer for the benefit of its
employees who are or from time to time will be eligible under the provisions of
the Plan to participate therein, commencing with the Plan Year containing the
Effective Date of the Plan as to the Adopting Employer.
2. Agreement to Be Governed by the Plan. The Adopting Employer agrees that
it shall be an "Employer" and a participating employer, as defined in the Plan,
commencing January 1, 1996, and as such it shall henceforth comply with and be
governed by the provisions of the Plan as they pertain to an Employer, as now
contained in the Plan or as hereafter altered or added by amendment to the Plan.
3. Effective Date of Adoption as to the Adopting Employer. The Adopting
Employer agrees that this adoption of the Plan shall be effective for all
purposes of the Plan as of and from January 1, 1996; and that wherever in the
Plan the term "Effective Date of the Plan" is now used, it shall with respect to
the Adopting Employer mean January 1, 1996.
4. Pre-March 1, 1994 Service. Service with Sugar Creek Foods of
Russellville, Inc., which was the predecessor by asset acquisition on February
28, 1994 to the Adopting Employer, shall not be considered service for any
purpose of the Plan.
5. Pre-January 1, 1996 Benefit Accrual Service. Notwithstanding any other
provision of the Plan, service with the Adopting Employer prior to the January
1, 1996 Effective Date of the Plan with respect to it shall not be considered
service for purposes of determining Years of Benefit Service under the Plan.
6. Pre-January 1, 1996 Compensation. Notwithstanding any other provision
of the Plan, compensation from the Adopting Employer for periods prior to the
January 1, 1996 Effective Date of the Plan with respect to it shall not be
considered Compensation for purposes of determining Accrued Benefits under
paragraph 4.1 of the Plan.
7. Updated Appendix A. An updated Appendix A to the Plan, listing the
Adopting Employer as a participating employer, is attached hereto and is hereby
made a part of the Plan.
IN WITNESS WHEREOF, the Adopting Employer has caused its name to be signed
and its seal affixed hereto by its duly authorized officers; and the consent
hereto by the Board is evidenced by the signature of its duly authorized
representative.
SUGAR CREEK FOODS, INC.,
Adopting Employer
By: ___________________________ (SEAL)
Its __________________________
ATTEST:
_________________________
Its _____________________
The Board of Directors of ESKIMO PIE CORPORATION consents.
_________________________
Title: ________________
ESKIMO PIE CORPORATION
EXECUTIVE RETIREMENT PLAN
APPENDIX B
(AS OF JANUARY 1, 1996)
LIST OF ADDITIONAL INCLUDED POSITIONS
DESCRIPTION OF POSITION EFFECTIVE DATE OF EXCLUSION
President of Sugar Creek Foods, Inc. January 1, 1996
General Manager of Sugar Creek Foods, Inc. January 1, 1996
ESKIMO PIE CORPORATION EXECUTIVE RETIREMENT PLAN
ACKNOWLEDGMENT OF APPOINTMENT OF TRUSTEE
Eskimo Pie Corporation, as the plan sponsor of the following named
employee benefit plan and related trust fund maintained for the benefit of its
employees, hereby evidences its appointment of the following person to serve as
trustee (sometimes referred to as the "Trustee") of the trust fund for the plan:
1. NAME OF PLAN: Eskimo Pie Corporation Executive Retirement Plan
2. NAME OF TRUST FUND: Eskimo Pie Corporation Executive
Retirement Trust
3. NAME OF TRUSTEE APPOINTED: Thomas M. Mishoe, Jr.
4. EFFECTIVE DATE: This acknowledgment evidences the appointed person's
appointment effective as of July 31, 1996. The appointment shall
automatically terminate if and when the appointed person ceases to be
employed by the plan sponsor or any of its affiliates.
IN WITNESS WHEREOF, the plan sponsor of the plan, by its duly authorized
representative, has executed this instrument.
Dated: ESKIMO PIE CORPORATION
By _________________________________________
David B. Kewer
Its President and Chief Executive Officer
ATTEST:
____________________________
Its ________________________
By execution hereof, the above named person acknowledges his acceptance of
his appointment as trustee of the plan and the trust fund.
___________________________
Thomas M. Mishoe, Jr.