Exhibit 10.2
FORM OF
CENTERPLATE DEFERRED COMPENSATION PLAN
(Amended and Restated effective as of January 1, 2005)
TABLE OF CONTENTS
ARTICLE 1 INTRODUCTION..............................................1
1.1 Name of Plan......................................................1
1.2 Purposes of Plan..................................................1
1.3 "Top Hat" Pension Benefit Plan....................................1
1.4 Funding...........................................................1
1.5 Effective Date....................................................1
1.6 Administration....................................................1
ARTICLE 2 DEFINITIONS AND CONSTRUCTION..............................1
2.1 Definitions.......................................................1
2.1.1 "Account".............................................2
2.1.2 "Base Salary".........................................2
2.1.3 "Base Salary Deferral"................................2
2.1.4 "Beneficiary".........................................2
2.1.5 "Bonus Compensation"..................................2
2.1.6 "Bonus Deferral"......................................2
2.1.7 "Change in Control"...................................2
2.1.8 "Code"................................................2
2.1.9 "Committee"...........................................2
2.1.10 "Company".............................................2
2.1.11 "Deferral Period".....................................2
2.1.12 "Deferred Compensation Agreement".....................3
2.1.13 "Directors"...........................................3
2.1.14 "Effective Date"......................................3
2.1.15 "Employee"............................................3
2.1.16 "ERISA"...............................................3
2.1.17 "Matching Contribution"...............................3
2.1.18 "Participant".........................................3
2.1.19 "Plan"................................................3
2.1.20 "Plan Year"...........................................3
2.1.21 "Retirement Date".....................................3
2.1.22 "Specific Future Year"................................3
2.1.23 "Valuation Date"......................................3
2.2 Number and Gender.................................................3
2.3 Headings..........................................................3
ARTICLE 3 PARTICIPATION AND ELIGIBILITY.............................4
3.1 Participation.....................................................4
3.2 Commencement of Participation.....................................4
3.3 Cessation of Active Participation.................................4
ARTICLE 4 DEFERRALS & MATCHING CONTRIBUTIONS........................4
4.1 Deferrals by Participants.........................................4
4.2 Effective Date of Deferred Compensation Agreement.................5
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4.3 Modification or Revocation of Election by Participant.............5
4.4 Matching Contributions............................................5
ARTICLE 5 VESTING, DEFERRAL PERIODS AND EARNINGS ELECTION...........5
5.1 Vesting...........................................................5
5.2 Deferral Periods..................................................5
5.3 Earnings Elections................................................6
ARTICLE 6 ACCOUNTS..................................................6
6.1 Establishment of Bookkeeping Accounts.............................6
6.2 Subaccounts.......................................................6
6.3 Hypothetical Nature of Accounts...................................6
ARTICLE 7 PAYMENT OF ACCOUNT........................................7
7.1 Timing of Distribution of Benefits................................7
7.2 Adjustment for Investment Gains and Losses Upon a Distribution....7
7.3 Form of Payment or Payments.......................................7
7.4 Designation of Beneficiaries......................................8
7.5 Unclaimed Benefits................................................8
7.6 Hardship Withdrawals..............................................8
ARTICLE 8 ADMINISTRATION............................................9
8.1 Committee.........................................................9
8.2 General Powers of Administration..................................9
8.3 Costs of Administration...........................................9
8.4 Indemnification of Committee......................................9
ARTICLE 9 DETERMINATION OF BENEFITS, CLAIMS PROCEDURE AND
ADMINISTRATION...............................................................10
9.1 Claims...........................................................10
9.2 Claim Decision...................................................10
9.3 Request for Review...............................................10
9.4 Review of Decision...............................................11
ARTICLE 10 MISCELLANEOUS.........................................11
10.1 Not Contract of Employment.......................................11
10.2 Non-Assignability of Benefits....................................11
10.3 Withholding......................................................11
10.4 Amendment and Termination........................................11
10.5 No Trust Created.................................................12
10.6 Unsecured General Creditor Status of Employee....................12
10.7 Severability.....................................................12
10.8 Governing Laws...................................................12
10.9 Binding Effect...................................................13
10.10 Entire Agreement.................................................13
ARTICLE 1
INTRODUCTION
1.1 Name of Plan.
Centerplate, Inc. hereby amends and restates the Volume Services
America Deferred Compensation Plan, henceforth to be known as the Centerplate
Deferred Compensation Plan (the "Plan"), effective as of January 1, 2005.
Amounts deferred prior to January 1, 2005 shall continue to be governed by the
terms of the Plan as in effect prior to this amendment and restatement, a copy
of which is attached hereto as Exhibit A.
1.2 Purposes of Plan.
The purposes of the Plan are to provide certain eligible employees of
the Company the opportunity to defer elements of their compensation which might
not otherwise be deferrable under other Company plans, including plans that are
qualified under Code Section 401(a), and to receive the benefit of additions to
their deferral comparable to those obtainable under the 401(k) Plan in the
absence of certain restrictions and limitations in the Internal Revenue Code.
1.3 "Top Hat" Pension Benefit Plan.
The Plan is an "employee pension benefit plan" within the meaning of
ERISA. However, the Plan is unfunded and maintained for a select group of
management or highly compensated employees and, therefore, it is intended that
the Plan will be exempt from Parts 2, 3 and 4 of Title 1 of ERISA. The Plan is
not intended to qualify under Code section 401(a).
1.4 Funding.
The Plan is unfunded. All benefits will be paid from the general assets
of the Company.
1.5 Effective Date.
This Plan was effective January 1, 1997, and is amended and restated
effective January 1, 2005.
1.6 Administration.
The Plan shall be administered by the Committee.
ARTICLE 2
DEFINITIONS AND CONSTRUCTION
2.1 Definitions.
For purposes of the Plan, the following words and phrases shall have
the respective meanings set forth below, unless their context clearly requires a
different meaning:
2.1.1 "Account" means the bookkeeping account maintained by the
Company on behalf of each Participant pursuant to Article 6 that is credited
with Base Salary Deferrals, Bonus Deferrals and Matching Contributions made by
the Company on behalf of each Participant pursuant to Article 4, and the
earnings and losses on such amounts as determined in accordance with Article 5.
As of any Valuation Date, a Participant's benefit under the Plan shall be equal
to the amount credited to his Account as of such date. 2.1.2 "Base Salary" means
the base rate of cash compensation paid by the Company to or for the benefit of
a Participant for services rendered or labor performed while a Participant,
including base pay a Participant could have received in cash in lieu of (A)
deferrals pursuant to Section 4.1 and (B) contributions made on his behalf to
any qualified plan maintained by the Company or to any cafeteria plan under
Section 125 of the Code maintained by the Company.
2.1.2 "Base Salary" means the base rate of cash compensation
paid by the Company to or for the benefit of a Participant for services rendered
or labor performed while a Participant, including base pay a Participant could
have received in cash in lieu of (A) deferrals pursuant to Section 4.1 and (B)
contributions made on his behalf to any qualified plan maintained by the
Company or to any cafeteria plan under Section 125 of the Code maintained by
the Company.
2.1.3 "Base Salary Deferral" means the amount of a Participant's
Base Salary which the Participant elects to have withheld on a pre-tax basis
from his Base Salary and credited to his Account pursuant to Section 4.1.
2.1.4 "Beneficiary" means the person or persons designated by
the Participant in accordance with Section 7.4.
2.1.5 "Bonus Compensation" means the amount awarded to a
Participant for a Plan Year under any bonus plan maintained by the Company.
2.1.6 "Bonus Deferral" means the amount of a Participant's Bonus
Compensation which the Participant elects to have withheld on a pre-tax basis
from his Bonus Compensation and credited to his account pursuant to Section 4.1.
2.1.7 "Change in Control" shall mean an event described in
Section 409A(a)(2)(A)(v) of the Code, as provided by Treasury Regulations issued
pursuant to that Section.
2.1.8 "Code" means the Internal Revenue Code of 1986, as
amended.
2.1.9 "Committee" means the administrative committee appointed
by the Directors to administer the Plan in accordance with Article 8.
2.1.10 "Company" means Centerplate, Inc. and any successor
thereto, and shall include any other entity, as listed from time to time (in
appendices to this Plan), that adopts this Plan and becomes a participating
Company. A participating Company shall be deemed to appoint Centerplate, Inc. as
its exclusive agent with respect to all power and authority conferred by the
Plan on a Company.
2.1.11 "Deferral Period" means the period of time for which a
Participant elects to defer receipt of the Base Salary Deferrals, Bonus
Deferrals and Matching Contributions credited to such Participant's Account and
shall be either the Retirement Date, a period of years to a Specific Future Year
as specified in Section 5.2 or upon a Change in Control. Deferral Periods shall
be measured on the basis of Plan Years, beginning with the Plan Year that
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commences immediately following the Plan Year for which the applicable Base
Salary Deferrals, Bonus Deferrals and/or Matching Contributions are credited to
the Participant's Account.
2.1.12 "Deferred Compensation Agreement" means the written
agreement (regardless of how they may be titled) as prescribed by the Committee
and entered into between the Company and a Participant pursuant to which the
Participant elects the amount of his Base Salary and/or his Bonus Compensation
to be deferred into the Plan, and the form of payment for such amounts, the
Deferral Period and the deemed investment.
2.1.13 "Directors" means the Board of Directors of the Company.
2.1.14 "Effective Date" means January 1, 2005.
2.1.15 "Employee" means any common-law employee of the Company.
2.1.16 "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended.
2.1.17 "Matching Contribution" means the amount, as determined
by the Company on an annual basis, credited by the Company to the Account of
each Participant based on such Participant's Base Salary Deferrals.
2.1.18 "Participant" means each Employee who has been selected
for participation in the Plan and who has become a Participant pursuant to
Article 3.
2.1.19 "Plan" means the Centerplate Deferred Compensation Plan,
as amended from time to time.
2.1.20 "Plan Year" means the twelve-consecutive-month period
commencing January 1 of each year and ending on December 31.
2.1.21 "Retirement Date" means the date the Participant is
eligible for and retires under any qualified retirement plan maintained by the
Company.
2.1.22 "Specific Future Year" means a calendar year in the
future voluntarily elected by a participant to begin distribution of Base Salary
Deferrals, Bonus Deferrals and Matching Contributions, limited only by the
minimum and maximum Deferral Periods.
2.1.23 "Valuation Date" means the last business day of each
calendar month and each special valuation date designated by the Committee.
2.2 Number and Gender.
Wherever appropriate herein, words used in the singular shall be
considered to include the plural and words used in the plural shall be
considered to include the singular. The masculine gender, where appearing in the
Plan, shall be deemed to include the feminine gender.
2.3 Headings.
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The headings of Articles and Sections herein are included solely for
convenience, and if there is any conflict between such headings and the text of
the Plan, the text shall control.
ARTICLE 3
PARTICIPATION AND ELIGIBILITY
3.1 Participation.
Participants in the Plan are those employees who are (a) members of a
select group of highly compensated or management Employees of the Company, or
(b) selected by the Committee, in its sole discretion, as Participants. The
Committee shall notify each Participant of his selection as a Participant.
Subject to the provisions of Section 3.3 a Participant shall remain eligible to
continue participation in the Plan for each Plan Year following his initial year
of participation in the Plan.
3.2 Commencement of Participation.
An Employee shall become a Participant effective as of the date the
Committee determines, which date shall be on or after the date his Deferred
Compensation Agreement becomes effective.
3.3 Cessation of Active Participation.
Notwithstanding any provision herein to the contrary, an individual who
has become a Participant in the Plan shall cease to be a Participant hereunder
effective as of any date designated by the Committee. Any such Committee action
shall be communicated to such Participant prior to the effective date of such
action.
ARTICLE 4
DEFERRALS & MATCHING CONTRIBUTIONS
4.1 Deferrals by Participants.
Before the first day of each Plan Year (or the remaining portion thereof
for an Employee who commences participation in the Plan other than on the first
day of a Plan Year), a Participant may file with the Committee a Deferred
Compensation Agreement pursuant to which such Participant elects to make Base
Salary Deferrals and/or Bonus Deferrals. Any such Participant election shall be
subject to any maximum or minimum percentage or dollar amount limitations and to
any other rules prescribed by the Committee in its sole discretion. Base Salary
Deferrals will be credited to the Account of each Participant as of the last day
of each calendar month, provided that such Participant is an Employee on the
last day of such calendar month. A Participant whose employment terminates
during the calendar month shall be paid the amount of his Base Salary Deferrals
for such month in cash. Bonus Compensation Deferrals will be credited to the
account of each Participant as of the last day of the month in which such Bonus
Compensation otherwise would have been paid to the Participant in cash provided
the participant is an employee on the last day of such month. A participant
whose employment terminates
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during the calendar month in which his Bonus Compensation would have been paid
to him in cash will be paid his bonus deferral in cash.
In no event may a Participant reduce or increase a previous Base Salary
Deferral election, nor alter a previous election to defer Bonus Compensation.
4.2 Effective Date of Deferred Compensation Agreement.
A Participant's initial Deferred Compensation Agreement shall be
effective as of the first payroll period after the date the Participant
commences participation in the Plan. Each subsequent Deferred Compensation
Agreement shall become effective on the first day of the Plan Year to which it
relates. If a Participant fails to complete a Deferred Compensation Agreement on
or before the date the Participant commences participation in the Plan or the
first day of any Plan Year, the Participant shall be deemed to have elected not
to make Base Salary Deferrals and/or Bonus Compensation Deferrals for such Plan
Year (or remaining portion thereof if the Participant enters the Plan other than
on the first day of a Plan Year).
4.3 Modification or Revocation of Election by Participant.
A Participant may not change the amount of his Base Salary or Bonus
Deferrals during a Plan Year or revoke his Deferred Compensation Agreement.
4.4 Matching Contributions.
The Committee, in its sole discretion, may provide for a Company match
on any portion of the amount deferred. Included in the Committee's discretion is
the ability to name specific individuals to whom a match applies and the amount
and timing of that match.
ARTICLE 5
VESTING, DEFERRAL PERIODS AND EARNINGS ELECTION
5.1 Vesting.
A Participant shall be 100% vested in his Account, including Matching
Contributions, at all times.
5.2 Deferral Periods.
A Deferral Period shall, at the Participant's election, be until (i)
Retirement Date (provided, that such election shall be deemed to be for the date
six months after Retirement Date for any Participant who is a "key employee" as
defined in Section 416(i) of the Code without regard to paragraph (5) thereof),
or (ii) a Specific Future Year and upon (iii) a Change in Control. In the case
of an election to defer until a Specific Future Year, the Deferral Period must
be for any period of at least three (3) years or more, but may not end later
than the year in which the Participant attains age 70, unless a Participant is
over age 55 as of the date such Deferred Compensation Agreement is made with
respect to such amount, in which case the deferral period need only be for one
(1) calendar tax year. A Participant must specify on the Deferred
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Compensation Agreement the Deferral Period for the Base Salary Deferrals, Bonus
Compensation Deferrals and Matching Contributions to be made to the Plan for the
Plan Year (or the remaining portion thereof for a Participant who enters the
Plan other than on the first day of a Plan Year) to which the Deferred
Compensation Agreement relates, subject to certain rules as determined by the
Committee from time to time. In the event a Participant does not elect a
Deferral Period for any such Base Salary Deferrals and Matching Contributions
for a Plan Year, such Participant shall be deemed to have elected a Deferral
Period of three (3) years.
5.3 Earnings Elections.
Amounts credited to a Participant's Account shall be credited with
earnings and losses based on hypothetical investment directions made by the
Participant, in accordance with investment deferral crediting options and
procedures adopted by the Committee from time to time. The Company specifically
retains the right in its sole discretion to change the investment deferral
crediting options and procedures. Any amounts credited to a Participant's
Account with respect to which a Participant does not provide investment
direction shall be credited with earnings in an amount determined by the
Committee in its sole discretion. A Participant's Account shall be adjusted as
of each Valuation Date to reflect investment gains and losses.
ARTICLE 6
ACCOUNTS
6.1 Establishment of Bookkeeping Accounts.
A separate bookkeeping account shall be maintained for each Participant.
Such account shall be credited with the Base Salary Deferrals and/or Bonus
Compensation Deferrals made by the Participant pursuant to Section 4.1, and
Matching Contributions made by the Company pursuant to Section 4.4, and credited
(or charged, as the case may be) with the hypothetical investment results
determined pursuant to Section 5.3.
6.2 Subaccounts.
Within each Participant's bookkeeping account, separate subaccounts
shall be maintained to the extent necessary for the administration of the Plan.
For example, it may be necessary to maintain separate subaccounts where the
Participant has specified different Deferral Periods, methods of payment or
investment directions with respect to his Base Salary Deferrals, Bonus
Compensation Deferrals and Matching Contributions for different Plan Years.
6.3 Hypothetical Nature of Accounts.
The account established under this Article 6 shall be hypothetical in
nature and shall be maintained for bookkeeping purposes only so that earnings
and losses on the Base Salary Deferrals, Bonus Compensation Deferrals and
Matching Contributions made to the Plan can be credited (or charged, as the case
may be). Neither the Plan nor any of the accounts (or subaccounts) established
hereunder shall hold any actual funds or assets. The right of any person to
receive one or more payments under the Plan shall be an unsecured claim against
the general assets of the Company. Any liability of the Company to any
Participant, former Participant, or
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Beneficiary with respect to a right to payment shall be based solely upon
contractual obligations created by the Plan. Neither the Company, the Directors,
nor any other person shall be deemed to be a trustee of any amounts to be paid
under the Plan. Nothing contained in the Plan, and no action taken pursuant to
its provisions, shall create or be construed to create a trust of any kind, or a
fiduciary relationship, between the Company and a Participant or any other
Person.
ARTICLE 7
PAYMENT OF ACCOUNT
7.1 Timing of Distribution of Benefits.
Distribution of Base Salary Deferrals, Bonus Compensation Deferrals and
Matching Contributions to a Participant shall be made as soon as practicable
following the date the Deferral Period for such amounts ends. If the Participant
elects to receive a distribution in the event of a Change in Control,
distribution shall be made within 45 days of the Change in Control.
Notwithstanding the foregoing, the Participant's entire Account shall be
distributed to him (or his Beneficiary in the event of his death) in five (5)
annual installments if the account balance is $200,000 or greater following the
earlier to occur of the following: (i) the Participant's death, (ii) the
Participant's permanent disability (as defined in Code Section 409A(a)(2)(C)),
or (iii) the Participant's termination of employment (six months after
termination of employment for any Participant who is a "key employee" as defined
in Section 416(i) of the Code without regard to paragraph (5) thereof),. If the
Participant's account balance is less than $200,000, the account balance for
subsections 7.1 (i), (ii) or (iii) will be paid as a lump sum. This distribution
may be accelerated, including to lump sum, based upon a showing of severe
financial hardship in accordance with Section 7.6 by the Participant or his
beneficiary.
7.2 Adjustment for Investment Gains and Losses Upon a Distribution.
Upon a distribution pursuant to this Article 7, the balance of a
Participant's Account shall be determined as of the Valuation Date immediately
preceding the date of the distribution to be made and shall be adjusted for
investment gains and losses which have accrued to the date of distribution but
which have not been credited to his Account.
7.3 Form of Payment or Payments.
Base Salary Deferrals, Bonus Compensation Deferrals and Matching
Contributions shall be distributed in accordance with the form of payment
elected by the Participant on the Deferred Compensation Agreement to which such
amounts relate. The form of payment with respect to amounts and the earnings
credited thereon may be in any of the following forms:
7.3.1 A lump sum; or
7.3.2 Installment payments for a period not to exceed fifteen
years.
Installment payments shall be paid annually on the first business day of
January of each Plan Year or quarterly on the first business day of each
calendar quarter as elected by the Participant. Each installment payment shall
be determined by multiplying the amounts to be
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distributed by a fraction, the numerator of which is one and the denominator of
which is the number of remaining installment payments to be made to Participant.
Anything contained herein to the contrary notwithstanding, total distribution of
a Participant's Account must be made by the date such Participant attains age
85. Prior to the year in which a distribution of a Participant's Account is
scheduled to begin distribution (but no less than twelve months prior to the
distribution date in all events), a Participant may request a change in form of
payment which may be approved or disapproved by the Committee in its sole
discretion; provided that such change must cause the initial distribution date
to be deferred for a period of not less than five years from the date such
distribution would otherwise have commenced.
7.4 Designation of Beneficiaries.
Each Participant shall have the right to designate the beneficiary or
beneficiaries to receive payment of his benefit in the event of his death. A
beneficiary designation shall be made by executing the beneficiary designation
form prescribed by the Committee and filing the same with the Committee. Any
such designation may be changed at any time by execution of a new designation in
accordance with this Section. If no such designation is on file with the
Committee at the time of the death of the Participant or such designation is not
effective for any reason as determined by the Committee, then the designated
beneficiary or beneficiaries to receive such benefit shall be the Participant's
surviving spouse, if any, or, if none, the Participant's executor or
administrator, or his heirs at law if there is no administration of such
Participant's estate.
7.5 Unclaimed Benefits.
In the case of a benefit payable on behalf of such Participant, if the
Committee is unable to locate the Participant or beneficiary to whom such
benefit is payable, such benefit may be forfeited to the Company, upon the
Committee's determination. Notwithstanding the foregoing, if subsequent to any
such forfeiture the Participant or beneficiary to whom such benefit is payable
makes a valid claim for such benefit, such forfeited benefit shall be paid by
the Company or restored to the Plan by the Company.
7.6 Hardship Withdrawals.
A Participant may apply in writing to the Committee for, and the
Committee may permit, a hardship withdrawal of all or any part of a
Participant's Account if the Committee, in its sole discretion, determines that
the Participant has incurred a severe financial hardship resulting from a sudden
and unexpected illness or accident of the Participant or of a dependent (as
defined in section 152(a) of the Code) of the Participant, loss of the
Participant's property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of
the Participant, as determined by the Committee, in its sole and absolute
discretion. The amount that may be withdrawn shall be limited to the amount
reasonably necessary to relieve the hardship or financial emergency upon which
the request is based, plus the federal and state taxes due on the withdrawal, as
determined by the Committee, after taking into account the extent to which such
hardship is or may be relieved through reimbursement or compensation by
insurance or otherwise or by liquidation of the participant's assets (to the
extent the liquidation of such assets would not itself cause severe financial
hardship). The Committee may require a Participant who requests a hardship
withdrawal to submit such evidence as the
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Committee, in its sole discretion, deems necessary or appropriate to
substantiate the circumstances upon which the request is based.
ARTICLE 8
ADMINISTRATION
8.1 Committee.
The Plan shall be administered by a Committee appointed by the
Directors. The Committee shall be responsible for the general operation and
administration of the Plan and for carrying out the provisions thereof. The
Committee may delegate to others certain aspects of the management and
operational responsibilities of the Plan, including the employment of advisors
and the delegation of ministerial duties, to qualified individuals, provided
that such delegation is in writing. The Committee shall be a "named fiduciary"
as that term is defined in Section 402(a)(2) of ERISA.
8.2 General Powers of Administration.
The Committee shall have all powers necessary or appropriate to enable
it to carry out its administrative duties. Not in limitation, but in application
of the foregoing, the Committee shall have the duty and power to interpret the
Plan and determine all questions that may arise hereunder as to the status and
rights of Employees, Participants, and Beneficiaries. The Committee may exercise
the powers hereby granted in its sole and absolute discretion. No member of the
Committee shall be personally liable for any actions taken by the Committee
unless the member's action involves willful misconduct.
8.3 Costs of Administration.
The costs of administering the Plan shall be borne by the Company unless
and until the Participant receives written notice of the imposition of such
administrative costs, with such costs to begin with the next Plan Year and none
may be assessed retroactively for prior Plan Years. Such costs shall be charged
against the Participant's Account and shall be uniform for all Plan
Participants. Such costs shall not exceed the standard rates for similarly
designed nonqualified plans under administration by high-quality third party
administrators at the time such costs are initially imposed and thereafter.
8.4 Indemnification of Committee.
The Company shall indemnify the members of the Committee against any and
all claims, losses, damages, expenses, including attorney's fees, incurred by
them, and any liability, including any amounts paid in settlement with their
approval, arising from their action or failure to act, except when the same is
judicially determined to be attributable to their gross negligence or willful
misconduct.
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ARTICLE 9
DETERMINATION OF BENEFITS,
CLAIMS PROCEDURE AND ADMINISTRATION
9.1 Claims.
A person who believes that he is being denied a benefit to which he is
entitled under the Plan (hereinafter referred to as a "Claimant") may file a
written request for such benefit with the Committee, setting forth his claim.
The request must be addressed to the Committee at the Company at its then
principal place of business.
9.2 Claim Decision.
Upon receipt of a claim, the Company shall advise the Claimant that a
reply will be forthcoming within ninety (90) days and shall, in fact, deliver
such reply within such period. The Company may, however, extend the reply period
for an additional ninety (90) days for reasonable cause.
If the claim is denied in whole or in part, the Committee shall adopt a
written opinion, using language calculated to be understood by the Claimant,
setting forth:
(1) The specific reason or reasons for such denial;
(2) The specific reference to pertinent provisions of the Plan on
which such denial is based;
(3) A description of any additional material or information
necessary for the Claimant to perfect his claim and an
explanation why such material or such information is
necessary;
(4) Appropriate information as to the steps to be taken if the
Claimant wishes to submit the claim for review; and
(5) The time limits for requesting a review under Section 9.3 and
for review under Section 9.4 hereof.
9.3 Request for Review.
With sixty (60) days after the receipt by the Claimant of the written
opinion described above, the Claimant may request in writing that the Company
review the determination of the Committee. Such request must be addressed to the
Secretary of the Company, at its then principal place of business. The Claimant
or his duly authorized representative may, but need not, review the pertinent
documents and submit issues and comments in writing for consideration by the
Company. If the Claimant does not request a review of the Corporation's
determination by the Secretary of the Company within such sixty (60)-day period,
he shall be barred and estopped from challenging the Company's determination.
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9.4 Review of Decision.
Within sixty (60) days after the Secretary's receipt of a request for
review, he will review the Company's determination. After considering all
materials presented by the Claimant, the Secretary will render a written
opinion, written in a manner calculated to be understood by the Claimant,
setting forth the specific reasons for the decision and containing specific
references to the pertinent provisions of this Agreement on which the decision
is based. If special circumstances require that the sixty (60)-day period be
extended, the Secretary will so notify the Claimant and will render the decision
as soon as possible, but no later than one hundred twenty (120) days after
receipt of the request for review.
ARTICLE 10
MISCELLANEOUS
10.1 Not Contract of Employment.
The adoption and maintenance of the Plan shall not be deemed to be a
contract between the Company and any person or to be consideration for the
employment of any person. Nothing herein contained shall be deemed to give any
person the right to be retained in the employ of the Company or to restrict the
right of the Company to discharge any person at any time nor shall the Plan be
deemed to give the Company the right to require any person to remain in the
employ of the Company or to restrict any person's right to terminate his
employment at any time.
10.2 Non-Assignability of Benefits.
No Participant, Beneficiary or distributee of benefits under the Plan
shall have any power or right to transfer, assign, anticipate, hypothecate or
otherwise encumber any part or all of the amounts payable hereunder, which are
expressly declared to be unassignable and non-transferable. Any such attempted
assignment or transfer shall be void. No amount payable hereunder shall, prior
to actual payment thereof, be subject to seizure by any creditor of any such
Participant, Beneficiary or other distributee for the payment of any debt,
judgment or other obligation, by a proceeding at law or in equity, nor
transferable by operation of law in the event of the bankruptcy, insolvency or
death of such Participant, Beneficiary or other distributee hereunder.
10.3 Withholding.
All deferrals and payments provided for hereunder shall be subject to
applicable withholding and other deductions as shall be required of the Company
under any applicable local, state or federal law.
10.4 Amendment and Termination.
The Committee may from time to time, in its discretion, amend, in whole
or in part, any or all of the provisions of the Plan; provided, however, that no
amendment may be made that would impair the rights of a Participant with respect
to amounts already allocated to his Account, except to the extent necessary, in
the sole discretion of the Committee, to cause the Plan to meet
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the requirements of Section 409A of the Code. The Committee may terminate the
Plan at any time. In the event that the Plan is terminated, the balance in a
Participant's Account shall be paid to such Participant or his Beneficiary in a
single cash lump sum, in full satisfaction of all such Participant's or
Beneficiary's benefits hereunder. Any such amendment to or termination of the
Plan shall be in writing and signed by a member of the Committee.
10.5 No Trust Created.
Nothing contained in this Agreement, and no action taken pursuant to its
provisions by either party hereto, shall create, nor be construed to create, a
trust of any kind or a fiduciary relationship between the Company and the
Participant, his beneficiary, or any other person.
10.6 Unsecured General Creditor Status of Employee.
The payments to Participant, his Beneficiary or any other distributee
hereunder shall be made from assets which shall continue, for all purposes, to
be a part of the general, unrestricted assets of the Company; no person shall
have nor acquire any interest in any such assets by virtue of the provisions of
this Agreement. The Company's obligation hereunder shall be an unfunded and
unsecured promise to pay money in the future. To the extent that the Participant
Beneficiary or other distributee acquires a right to receive payments from the
Company under the provisions hereof, such right shall be no greater than the
right of any unsecured general creditor of the Company; no such person shall
have nor require any legal or equitable right, interest or claim in or to any
property or assets of the Company.
In the event that, in its discretion, the Company purchases an insurance
policy or policies insuring the life of the Employee (or any other property) to
allow the Company to recover the cost of providing the benefits, in whole, or in
part, hereunder, neither the Participant, Beneficiary or other distributee shall
have nor acquire any rights whatsoever therein or in the proceeds therefrom. The
Company shall be the sole owner and beneficiary of any such policy or policies
and, as such, shall possess and may exercise all incidents of ownership therein.
No such policy, policies or other property shall be held in any trust for a
Participant, Beneficiary or other distributee or held as collateral security for
any obligation of the Company hereunder. An Employee's participation in the
underwriting or other steps necessary to acquire such policy or policies may be
required by the Company and, if required, shall not be a suggestion of any
beneficial interest in such policy or policies to a Participant.
10.7 Severability.
If any provision of this Plan shall be held illegal or invalid for any
reason, said illegality or invalidity shall not affect the remaining provisions
hereof; instead, each provision shall be fully severable and the Plan shall be
construed and enforced as if said illegal or invalid provision had never been
included herein.
10.8 Governing Laws.
All provisions of the Plan shall be construed in accordance with the
laws of South Carolina except to the extent preempted by federal law.
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10.9 Binding Effect.
This Plan shall be binding on each Participant and his heirs and legal
representatives and on the Company and its successors and assigns.
10.10 Entire Agreement.
This document and any amendments contain all the terms and provisions of
the Plan and shall constitute the entire Plan, any other alleged terms or
provisions being of no effect.
IN WITNESS WHEREOF, the Company has caused this Plan to be properly
executed on the day of December, 2004.
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CENTERPLATE, INC.
(Corporate Seal) By:
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Its:
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Attested to:
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Secretary