1
EXHIBIT 10(b)
FOURTH AMENDED AND RESTATED
SYSCO CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
2
2/15/96
3
FOURTH AMENDED AND RESTATED
SYSCO CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
TABLE OF CONTENTS
Section
ARTICLE I - DEFINITIONS
Accrued Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1
Actuarial Equivalent or Actuarially Equivalent Basis . . . . . . . . . . . . . . . . . . . . . . 1.2
Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4
Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.6
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.7
Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.8
Credited Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.9
Eligible Earnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.10
Final Average Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.11
Participant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.12
Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.13
Plan Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.14
Primary Social Security Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.15
Retirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.16
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.17
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.18
Sysco . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.19
Sysco Retirement Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.20
Total Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.21
Voting Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.22
ARTICLE II - ELIGIBILITY
Initial and Continued Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
Frozen Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2
Frozen Participation Deemed Active Participation . . . . . . . . . . . . . . . . . . . . . . . . 2.3
Renewed Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
ARTICLE III - VESTING
ARTICLE IV - RETIREMENT BENEFIT
Calculation of Retirement Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1
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TABLE OF CONTENTS (CONTINUED)
Section
Form and Time of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2
Beneficiary for the Five Year Certain Payment . . . . . . . . . . . . . . . . . . . . . . . . . 4.3
ARTICLE V - DEATH BENEFIT
Death Prior to Participant's Age 60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1
Death At or After Age 60 While Still Employed
or After a Change of Control Which Occurs
While He is Employed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2
Death At or After Age 60 But Prior to Age 65 After
Participant Retires If No Change of Control
Occurs while He Is Employed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
Death At Age 65 or Older After Participant Retires . . . . . . . . . . . . . . . . . . . . . . . 5.4
Death While Participation is Frozen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5
Beneficiary Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6
ARTICLE VI - PROVISIONS RELATING TO ALL BENEFITS
Effect of this Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
Termination of Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2
Limitation on Benefits Applicable to Each
Participant Whose Participation is Frozen . . . . . . . . . . . . . . . . . . . . . . . 6.3
No Duplication of Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4
Forfeiture For Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5
Forfeiture For Competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.6
Expenses Incurred in Enforcing the Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7
Restrictions on any Portion of Total Payments
Determined to be Excess Parachute Payments . . . . . . . . . . . . . . . . . . . . . . . . . 6.8
Benefits Upon Re-employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
ARTICLE VII - ADMINISTRATION
Committee Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
Committee Organization and Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2
Powers of the Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3
Committee Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
Reimbursement of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5
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TABLE OF CONTENTS (CONTINUED)
Section
ARTICLE VIII - ADOPTION BY SUBSIDIARIES
Procedure for and Status After Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1
Termination of Participation By Adopting Subsidiary . . . . . . . . . . . . . . . . . . . . . . 8.2
ARTICLE IX - AMENDMENT AND/OR TERMINATION
Amendment or Termination of the Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1
No Retroactive Effect on Awarded Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2
Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3
ARTICLE X - FUNDING
Payments Under This Plan are the Obligation
of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.1
Plan May Be Funded Through Life Insurance
Owned by the Company or a Rabbi Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2
Reversion of Excess Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3
Participants Must Reply Only on General
Credit of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4
Funding of Benefits for Participants Subject to
Canadian Income Tax Laws is Prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.5
ARTICLE XI - MISCELLANEOUS
Responsibility for Distributions and
Withholding of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
Limitation of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2
Distributions to Incompetents of Minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3
Nonalienation of Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4
Reliance Upon Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
Amendment Applicable to Active Participants Only
Unless it Provides Otherwise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.6
Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.7
Notice 11.8
Gender and Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.9
Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.10
Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.11
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FOURTH AMENDED AND RESTATED
SYSCO CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
WHEREAS, Sysco Corporation and its subsidiaries have established the
Sysco Corporation Supplemental Executive Retirement Plan effective July 3, 1988
which provides for certain highly compensated management personnel a supplement
to their retirement pay so as to retain their loyalty and to offer a further
incentive to them to maintain and increase their standard of performance;
WHEREAS, Sysco Corporation retained the right of the Board of Directors
to amend the Plan at any time by an instrument in writing; and
WHEREAS, the Plan, as amended and restated on September 19, 1995, has
been amended by the First Amendment to the Plan, which amendment was executed
on this date, February 15, 1996, to be effective July 1, 1995, and;
WHEREAS, it has been determined that the Plan should again be restated
to incorporate the First Amendment so that the Plan, as amended, is set forth
in one document;
NOW, THEREFORE, Sysco Corporation amends and restates the Sysco
Corporation Supplemental Executive Retirement Plan as follows:
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ARTICLE I
DEFINITIONS
1.1 Accrued Benefit. "Accrued Benefit" means, for all purposes other
than determining the frozen Accrued Benefit, as of any given time the
retirement benefit calculated under Section 4.1 with Final Average
Compensation, the offsets for benefits provided by other qualified or
registered defined contribution and qualified or registered defined benefit
plans and Credited Service determined as of that date but with the offset for
the Primary Social Security Benefit and the Canadian Pension Plan benefit being
projected to be the benefit payable at age 65 if he is less than age 65 at the
given time and his age at the given time if he is age 65 or more at the given
time. "Accrued Benefit" means for purposes of determining a Participant's
frozen Accrued Benefit as of any given time the retirement benefit calculated
under Section 4.1 with Final Average Compensation determined under Section 1.11
and Credited Service determined under Section 1.9 as of the date the
Participant's participation in this Plan is frozen but with the offsets for
benefits provided by other qualified or registered defined contribution and
qualified or registered defined benefit plans determined as of the date of his
Retirement or his earlier termination of employment with all Companies and the
offset for the Primary Social Security Benefit and the Canadian Pension Plan
benefit being projected to be the benefit payable at age 65 if he is less than
age 65 at the time of his Retirement or his earlier termination from employment
with all Companies and his age at Retirement if he is age 65 or more at that
time.
1.2 Actuarial Equivalent or Actuarially Equivalent Basis. "Actuarial
Equivalent" or "Actuarially Equivalent Basis" means an equality in value of the
aggregate amounts expected to be received under different forms of payment
based on the same
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mortality and interest assumptions. For this purpose, the mortality and
interest rate assumptions used in computing benefits under the Sysco Retirement
Plan will be used. If there is no Sysco Retirement Plan or successor qualified
defined benefit plan, then the actuarial assumptions to be used will be those
actuarial assumptions as are selected by the actuarial firm, which last
serviced the Sysco Retirement Plan prior to its termination or merger, as being
then appropriate had the Sysco Retirement Plan remained in existence with its
last participant census.
1.3 Beneficiary. "Beneficiary" means a person or entity designated
by the Participant under the terms of this Plan to receive any amounts
distributed under the Plan upon the death of the Participant.
1.4 Board of Directors. "Board of Directors" means the Board of
Directors of Sysco.
1.5 Change of Control. "Change of Control" means the occurrence of
one or more of the following events:
(a) Any "person", including a "syndication" or "group" as
those terms are used in Section 13(d)(3) of the Securities Act, is or
becomes the beneficial owner, directly or indirectly, of securities of
Sysco representing 20% or more of the combined voting power of Sysco's
then outstanding Voting Securities;
(b) Sysco is merged or consolidated with another corporation
and immediately after giving effect to the merger or consolidation
either (i) less than 80% of the outstanding Voting Securities of the
surviving or resulting entity are then beneficially owned in the
aggregate by (x) the stockholders of Sysco immediately prior to the
merger or consolidation, or (y) if a record date has been set to
determine the stockholders of Sysco entitled to vote on the merger or
consolidation, the stockholders of Sysco as of that record date, or (ii)
the Board of Directors, or similar governing body, of the surviving or
resulting entity does not have as a majority of its members the persons
specified in clause (c)(i) and (ii) below;
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(c) If at any time the following do not constitute a majority
of the Board of Directors of Sysco (or any successor entity referred to
in clause (b) above):
(i) persons who are directors of Sysco on
July 12, 1991; and
(ii) persons who, prior to their election as a director
of Sysco (or successor entity if applicable) were nominated,
recommended or endorsed by a formal resolution of the Board of
Directors of Sysco;
(d) If at any time during a calendar year a majority of the
directors of Sysco are not persons who were directors at the beginning
of the calendar year; and
(e) Sysco transfers substantially all of its assets to another
corporation which is a less than 80% owned subsidiary of Sysco.
1.6 Code. "Code" means the Internal Revenue Code of 1986, as
amended from time to time.
1.7 Company. "Company" means Sysco and any Subsidiary
adopting the Plan.
1.8 Committee. "Committee" means the persons who are from
time to time serving as members of the committee administering this Plan.
1.9 Credited Service. "Credited Service" means service with
Sysco and its Subsidiaries for which the Participant is awarded credited
service under the Sysco Retirement Plan for vesting purposes or would have been
awarded Credited Service under the Sysco Retirement Plan for vesting purposes
if the Sysco Retirement Plan covered employees working outside of the United
States except under the circumstances described below in which event the rules
set forth for each circumstance would be applicable to that circumstance only:
(a) If a Participant is terminated for total disability on or
after age 60 under circumstances which will qualify the Participant for
a total disability benefit under the Sysco Retirement Plan and his
participation is not then
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frozen, the Participant will be awarded Credited Service for vesting
purposes under Article III until the Participant attains 65 if the
disability continues but will not be awarded Credited Service for
benefit accrual purposes under Section 4.1.
(b) If a Participant is terminated for total disability at any
time before age 60 or on or after age 60 when his participation is
frozen under Section 2.2, the Participant will not be awarded Credited
Service for any purpose under this Plan.
(c) If a Participant's participation in this Plan is frozen,
the Participant will be awarded Credited Service for vesting purposes
under Article III during the period the Participant is still employed by
an adopting Company but during which his participation is frozen, but
will not be awarded Credited Service for benefit accrual purposes under
Section 4.1.
(d) If a Participant's participation in this Plan is frozen
but he remains employed by an adopting Company and then later again
becomes eligible to participate, the Participant will be awarded
Credited Service for the intervening period for all purposes.
However, notwithstanding the above provisions or anything else
that may be to the contrary in this Plan, the Compensation Committee of the
Board of Directors may, in its sole discretion, award additional Credited
Service for purposes of vesting, benefit accrual or both when it determines a
situation warrants it.
1.10 Eligible Earnings. "Eligible Earnings" means the
Participant's salary for a given Plan Year plus the amount, if any, awarded the
Participant with respect to the Plan Year under the Sysco Corporation
Management Incentive Plan and then paid to him, plus the amount, if any,
deferred by the Participant under the Sysco Corporation Executive Deferred
Compensation Plan.
1.11 Final Average Compensation. "Final Average Compensation"
means a Participant's average monthly Eligible Earnings from the Company for
the five successive Plan Years that give the highest average monthly rate of
Eligible Earnings for the Participant out of the ten Plan Years next preceding
the earliest of: (a) a Participant's participation in
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this Plan being frozen, (b) a Change of Control unless the employee remains an
employee of the Company and a Participant for the Plan Year in which a Change
of Control occurs and the next succeeding three Plan Years, or (c) the latest
of (i) his attainment of age 60, (ii) termination for total disability after
age (60) or (iii) his Retirement. For this purpose, a Participant's Eligible
Earnings will only be used for the period of time that the Company has been a
Subsidiary and for the period of time that the Participant has been employed by
Sysco or a Subsidiary.
1.12 Participant. "Participant" means an employee of a Company
who is eligible for and is participating in the Plan.
1.13 Plan. "Plan" means the Sysco Corporation Supplemental
Executive Retirement Plan set forth in this document, as amended from time to
time.
1.14 Plan Year. "Plan Year" means a one year period which
coincides with the fiscal year of Sysco. Sysco has a 52/53 week fiscal year
beginning on the Sunday next following the Saturday closest to June 30th of
each calendar year.
1.15 Primary Social Security Benefit. "Primary Social Security
Benefit" means the amount available at age 65 for those Participants who retire
or whose employment with all Companies is otherwise terminated at a time when
he has a vested interest on or before age 65, or at the time of Retirement for
all others, as a monthly old age benefit for the Participant under the Federal
Social Security Act or any similar federal act or acts in effect at the time
the offset is to be used, whether or not payment of the amount is delayed,
superseded or forfeited because of failure to apply or for any other reason.
The amount of the monthly old age benefit will be determined based upon the pay
and employment data which may be furnished by the Company and/or the
Participant
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concerned. If a Participant terminates before age 65 it will be assumed that
his compensation has continued at the rate last paid by the Company until he
attains age 65 unless he provides evidence of a different rate of compensation
or that he had no compensation during the period. Any pay for periods prior to
the earliest data furnished will be estimated by applying a salary scale factor
projected backward and the salary scale applied for this purpose is the actual
change in average wages from year to year as determined by the Federal Social
Security Administration.
1.16 Retirement. "Retirement" means the retirement of a
Participant from any Company on or after age 60 under Company policy.
1.17 Securities Act. "Securities Act" means the Securities
Exchange Act of 1934, as amended from time to time.
1.18 Subsidiary. "Subsidiary" means any wholly owned
subsidiary of Sysco.
1.19 Sysco. "Sysco" means the Sysco Corporation, the sponsor
of this Plan.
1.20 Sysco Retirement Plan. "Sysco Retirement Plan" means the
Sysco Corporation Retirement Plan, a defined benefit plan qualified under
Section 401(a) of the Code.
1.21 Total Payments. "Total Payments" means all payments or
benefits received or to be received by a Participant in connection with a
Change of Control of Sysco and the termination of his employment under the
terms of this Agreement or the Sysco Corporation Executive Deferred
Compensation Plan, and in connection with a Change of Control of Sysco under
the terms of any stock option plan or any other plan, arrangement or agreement
with the Company, its successors, any person whose actions result in a Change
of Control or any person affiliated with the Company or who as a result of the
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completion of transactions causing a Change of Control become affiliated with
the Company within the meaning of Section 1504 of the Code, taken collectively.
1.22 Voting Securities. "Voting Securities" means any security
which ordinarily possesses the power to vote in the election of the Board of
Directors without the happening of any precondition or contingency.
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ARTICLE II
ELIGIBILITY
2.1 Initial and Continued Eligibility. Each employee of a
Company who is a participant in the Sysco Corporation Management Incentive Plan
is eligible to participate in this Plan. Once an employee has qualified to
participate in this Plan the employee shall continue his participation as long
as he remains a participant in the Sysco Corporation Management Incentive Plan
or the Committee determines that his failure to participate in the Sysco
Corporation Management Incentive Plan will not affect his eligibility to
continue his participation in this Plan. But, if a Participant is no longer a
participant in the Sysco Corporation Management Incentive Plan and the
Committee does not make that determination, the Participant immediately becomes
ineligible to participate in this Plan.
2.2 Frozen Participation. If an employee who is a Participant
later becomes ineligible to continue to participate but still is employed by an
adopting Company, his Accrued Benefit will be frozen as of the last day of the
Plan Year prior to the Plan Year during which he initially became ineligible to
participate. He will later be entitled to that frozen Accrued Benefit, upon
Retirement, should he fulfill the requirements of Articles III and IV. The
frozen Accrued Benefit will be payable at the time and in the form set out in
Article IV. However, if any of the events described in Article VI should
occur, the Participant whose participation is frozen shall then have his frozen
Accrued Benefit either restricted in amount or forfeited.
2.3 Frozen Participation Deemed Active Participation. If a
Participant's participation in this Plan is frozen after a Change of Control
and the Participant dies or is terminated from the employ of all Companies by
the then management within four years
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after that Change of Control the freeze will be ineffective as to that
Participant and he will be treated for all purposes as if his participation
were never frozen.
2.4 Renewed Eligibility. If an employee who is a Participant
becomes ineligible to continue to participate but remains employed by an
adopting Company and then later again becomes eligible to participate, the
Participant will have his Final Average Compensation computed as though the
freeze had never occurred, and will be treated for all purposes as though he
had not had his participation interrupted. Thereafter he will become entitled
to benefits as before should he fulfill the requirements of Article III and IV
or V.
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ARTICLE III
VESTING
A Participant must have 10 years or more of Credited Service,
excluding any Credited Service before the later of the first date of hire by
the Company or the date of acquisition by Sysco of the Company for which the
Participant then worked, in order to vest in his Accrued Benefit using the
following vesting schedule unless a Change of Control occurs. If a Change of
Control occurs, each Participant will immediately vest 100% in his Accrued
Benefit, without regard to the required 10 years or more of Credited Service to
begin vesting or the vesting schedule. In addition, the Compensation Committee
of the Board of Directors may, in its sole discretion, accelerate vesting after
a Participant attains age 60 when it determines a specific situation warrants
the acceleration.
Participant's Attained
Age Upon Termination
of Credited Service Vested Percentage
--------------------- -----------------
Less than 60 . . . . . . . . . . . . . . . . . . . 0%
60 but less than 61 . . . . . . . . . . . . . . . . 50%
61 but less than 62 . . . . . . . . . . . . . . . . 60%
62 but less than 63 . . . . . . . . . . . . . . . . 70%
63 but less than 64 . . . . . . . . . . . . . . . . 80%
64 but less than 65 . . . . . . . . . . . . . . . . 90%
65 or more . . . . . . . . . . . . . . . . . . . . 100%
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ARTICLE IV
RETIREMENT BENEFIT
4.1 Calculation of Retirement Benefit. Upon Retirement for
age or disability from the Company on or after age 65 or upon attaining age 65
if the Participant retires for age or disability at or after age 60 but prior
to age 65 or if the Participant's employment with all Companies is terminated
prior to age 65 and he has a vested interest, a Participant will receive his
vested portion of a monthly benefit for life with five years certain equal to
50% of the Participant's Final Average Compensation offset by the sum of the
following benefits:
(a) the monthly benefit for the life of the Participant with
five years certain which can be provided on an Actuarially Equivalent
Basis with the vested benefit of the Participant in the Sysco
Corporation Employees' 401(k) Plan and any other qualified defined
contribution plan in the United States and/or registered deferred profit
sharing plan in Canada sponsored and funded by the Company or any other
company for which a Participant may have worked in the past or will work
in the future,
(b) the monthly benefit for the life of the Participant with
five years certain which can be provided on an Actuarially Equivalent
Basis with the vested accrued benefit of the Participant from the Sysco
Retirement Plan and any other qualified defined benefit plan in the
United States and/or registered pension plan in Canada sponsored and
funded by the Company or any other company for which a Participant may
have worked in the past or will work in the future, and
(c) the Primary Social Security Benefit available to the
Participant and/or the benefit available to the Participant under the
Canadian Pension Plan (the government sponsored plan comparable to the
federal Social Security System) using the same or similar assumptions
used to determine the Primary Social Security Benefit,
which resulting amount is then reduced by 5% for each full year of Credited
Service less than 20 years.
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In determining the amount of the offset resulting from a
Participant's vested benefit and/or vested accrued benefit, only the benefit
derived from the Company's contributions, exclusive of any salary deferral
contributions, is to be used and any prior distribution from a Participant's
vested benefit and/or vested accrued benefit, including but not limited to an
in service withdrawal or a qualified domestic relations order distribution,
will be added back. The vested benefit and/or vested accrued benefit is to be
computed as if the benefits will begin being paid as of the date the retirement
benefit is first payable under this Section without regard to the actual
election made by the Participant under any given plan.
4.2 Form and Time of Payment. The monthly retirement benefit
will begin on the first day of the month coincident with or next following the
Participant's 65th birthday, or actual Retirement, whichever is later, if he
survives to the applicable date. The form of benefit payment, in the case of a
Participant who is not married on his 65th birthday or actual Retirement,
whichever is applicable, will be a life only monthly annuity with a period of
five years guaranteed in the amount calculated in accordance with Section 4.1.
The form of benefit payment, in the case of a Participant who is married on his
65th birthday or actual Retirement, whichever is applicable, will be a joint
and two-thirds survivor monthly annuity which is Actuarially Equivalent to the
amount calculated in accordance with Section 4.1 where a reduced monthly amount
is payable for the joint lives of the Participant and his spouse, and upon the
death of either, a monthly amount will continue for the life of the survivor
equal to two-thirds of the monthly amount provided during their joint lives.
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4.3 Beneficiary for the Five Year Certain Payment. If a
Participant who receives a life annuity, with five years certain, dies prior to
completing the five years certain period, the Beneficiary named by him, under
Article V, for any death benefit that may be payable under that Article, will
receive the remaining payments to be made under that annuity form after the
Participant's death. Even though a Participant with a frozen Accrued Benefit
cannot receive a death benefit under Article V, a Beneficiary designation
completed in accordance with Section 5.4, before or after a Participant's
participation is frozen, will be effective for the purpose of awarding the
remaining payments under the five years certain.
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ARTICLE V
DEATH BENEFIT
5.1 Death Prior to Participant's Age 60. If a Participant's
participation in this Plan is not then frozen and he dies prior to age 60
either (a) while in the employ of the Company or (b) within four years after a
Change of Control whether he is still employed by the Company or not, the
Participant's designated Beneficiary will be entitled to receive annually, for
a period of 10 years, an amount which is equal to 25% of the average annual
Eligible Earnings of the Participant for the last three full Plan Years prior
to his death or termination, whichever is earlier. This benefit will begin
being paid 90 days after the date of the Participant's death.
5.2 Death at or After Age 60 While Still Employed or After a
Change of Control Which Occurs While He Is Employed. If a Participant's
participation in this Plan is not then frozen and he dies at or after age 60
either (a) while in the employ of the Company or (b) within four years after a
Change of Control which occurs while he is employed whether or not he is still
employed by the Company at the date of death:
(i) if the Participant is married at the time of death the
Participant's designated Beneficiary will be entitled to receive a
monthly annuity for life with a period of 10 years certain that can be
provided on an actuarially equivalent basis by the greater of (x) the
commuted lump sum value of the benefit which would be payable to the
Participant if he had retired and could have begun receiving his
retirement benefit under Article IV, using the vested percentage as of
his date of death but reducing the benefit by five-ninths of 1% for each
full calendar month by which the first payment precedes the month in
which the Participant would have attained age 65 so as to discount it
for its earlier payment, or (y) the commuted lump sum value of the
benefit the Participant's designated Beneficiary would have received
under Section 5.1 assuming the Participant qualified for it without
regard to his age; or
(ii) if the Participant is single at the time of death, the
Participant's designated Beneficiary will be entitled to receive a lump
sum payment which
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is the actuarial equivalent of the greater of (x) the commuted lump sum
value of the benefit which would be payable to the Participant if he had
retired and could have begun receiving his retirement benefit under
Article IV, using the vested percentage as of his date of death but
reducing the benefit by five-ninths of 1% for each full calendar month
by which the lump sum payment precedes the month in which the
Participant would have attained age 65 so as to discount it for its
earlier payment, or (y) the commuted lump sum value of the benefit the
Participant's designated Beneficiary would have received under Section
5.1 assuming the Participant qualified for it without regard to his age.
This benefit will be paid or begin being paid, as applicable, 90 days after the
date of the Participant's death.
5.3. Death at or After Age 60 But Prior to Age 65 After
Participant Retires If No Change of Control Occurs While He Is Employed. If a
Participant's participation in this Plan is not then frozen and he dies at or
after age 60 but prior to age 65 after the Participant retires for age or
disability if no Change of Control occurs within a four-year period ending on
the date of the Participant's death while he is still employed:
(a) if the Participant is married at the time of death, the
Participant's designated Beneficiary will be entitled to receive,
monthly, an annuity for life with a period of 10 years certain which is
the actuarial equivalent of the commuted lump sum of the two-thirds
survivor annuity his spouse would have received if the Participant could
have begun receiving his retirement benefit under Article IV, using the
vested percentage as of his date of retirement, and then died, all as of
his date of death, reduced by five-ninths of 1% for each full calendar
month by which the first payment precedes the month in which the
Participant would have attained age 65; or
(b) if the Participant is single at the time of death, the
Participant's designated Beneficiary will be entitled to receive a lump
sum payment which is the actuarial equivalent of the commuted lump sum
of the period of five years of monthly payments his designated
Beneficiary would have received if the Participant could have begun
receiving his retirement benefit under Article IV, using the vested
percentage as of his date of retirement, and then died, all as of his
date of death, reduced by five-ninths of 1% for each full calendar month
by which the lump sum payment precedes the month in which the
Participant would have attained age 65.
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This benefit will be paid or begin being paid, as applicable, 90 days after the
date of the Participant's death.
5.4 Death at Age 65 or Older After Participant Retires. Upon the
death of a Participant at or after age 65 after the Participant retires there
is no death benefit. However, if the Participant is married on his 65th
birthday or actual Retirement, whichever is applicable, his spouse, if she is
then living, will receive the two-thirds survivor benefit provided for in
Article IV; and if the Participant is not married on his 65th birthday or
actual Retirement, whichever is applicable, his designated Beneficiary will
receive the remaining payments, if any, due because of the five year certain
period.
5.5 Death While Participation is Frozen. A frozen Participant is not
entitled to a death benefit if he dies prior to age 65, whether he dies while
still employed or after Retirement for age or disability. However, if the
Participant's participation in this Plan is frozen, he dies at or after age 65,
whether still employed or after Retirement for age or disability, and he is
married on his 65th birthday or actual Retirement, whichever is applicable, his
spouse, if she is then living, will receive the two-thirds survivor benefit
provided for in Article IV; and if the Participant's participation in this Plan
is frozen, he dies at or after age 65, whether still employed or after
Retirement for age or disability, and he is not married on his 65th birthday or
actual Retirement, whichever is applicable, his designated Beneficiary will
receive the remaining payments, if any, due because of the five year certain
period.
5.6 Beneficiary Designation. Each Participant upon entering the Plan
shall file with the Committee a designation of one or more Beneficiaries to
whom the death benefit provided by this Article V or the remaining unpaid
period certain payments under Article
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IV will be payable in the event of the Participant's death prior to his
Retirement. The designation will be effective upon receipt by the Committee of
a properly executed form which the Committee has approved for that purpose.
The Participant may from time to time revoke or change any designation of
Beneficiary by filing another approved Beneficiary designation form with the
Committee. If there is no valid designation of Beneficiary on file with the
Committee at the time of the Participant's death or if all of the Beneficiaries
designated in the last Beneficiary designation have predeceased the Participant
or otherwise cease to exist, the Beneficiary will be the Participant's spouse,
if the spouse survives the Participant, or otherwise the Participant's estate.
A Beneficiary must survive the Participant by 60 days in order to be considered
to be living on the date of the Participant's death. If any Beneficiary
survives the Participant but dies or otherwise ceases to exist before receiving
all payments due under Article IV or this Article V, the balance of the
payments, which would have been paid to that Beneficiary will, unless the
Participant's designation provides otherwise, be distributed to the deceased
individual Beneficiary's estate or to the Participant's estate in the case of a
Beneficiary which is not an individual. Any Beneficiary designation which
designates any person or entity other than the Participant's spouse must be
consented to by the spouse in writing in a form acceptable to the Committee in
order to be effective.
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ARTICLE VI
PROVISIONS RELATING TO ALL BENEFITS
6.1 Effect of This Article. The provisions of this Article
will control over all other provisions of this Plan.
6.2 Termination of Employment. Termination of employment for
any reason prior to the Participant's vesting under Article III or Article V,
if applicable, will cause the Participant and all Beneficiaries holding under
the Participant to forfeit all interest in and under this Plan.
6.3 Limitation on Benefits Applicable to Each Participant
Whose Participation is Frozen. The benefit provided under Article IV of this
Plan is limited in amount, in the case of each Participant whose participation
in this Plan is frozen at the time he becomes entitled to the benefit, so that
the benefit will not exceed the Participant's frozen Accrued Benefit if the
frozen Accrued Benefit is less than the benefit which could otherwise be
provided without this limitation.
6.4 No Duplication of Benefits. It is not intended that there
be any duplication of benefits. Therefore, if a Participant has met the
requirements of Article IV and has survived to age 65 or actual Retirement, if
later, then the Participant, his spouse and/or his Beneficiary shall only
receive a benefit under that Article. If a Participant dies before attaining
age 65 or actual Retirement, if later, the Participant's Beneficiary shall only
receive a benefit, if the Beneficiary qualifies for one, under Article V. But,
in no event will a Participant, Participant's spouse and/or Beneficiary qualify
for a benefit under both Articles.
6.5 Forfeiture For Cause. If the Committee finds, after full
consideration of the facts presented on behalf of both the Company and a former
Participant, that the
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Participant was discharged by the Company for fraud, embezzlement, theft,
commission of a felony, proven dishonesty in the course of his employment by
the Company which damaged the Company, or for disclosing trade secrets of the
Company, the entire benefit accrued for the benefit of the Participant and/or
his Beneficiaries will be forfeited even though it may have been previously
vested under Article III or V. The decision of the Committee as to the cause
of a former Participant's discharge and the damage done to the Company will be
final. No decision of the Committee will affect the finality of the discharge
of the Participant by the Company in any manner. Notwithstanding the
foregoing, the forfeiture created by this Section will not apply to a
Participant or former Participant discharged during the Plan Year in which a
Change of Control occurs, or during the next three succeeding Plan Years
following the Plan Year in which a Change of Controls occurs unless an
arbitrator selected to review the Committee's findings agrees with the
Committee's determination to apply the forfeiture. The arbitrator will be
selected by permitting each the Company and the Participant to strike one name
each from a panel of three names obtained from the American Arbitration
Association. The person whose name is remaining will be the arbitrator.
6.6 Forfeiture for Competition. If at the time a distribution
is being made or is to be made to a Participant or former Participant, the
Committee finds after full consideration of the facts presented on behalf of
the Company and the Participant or former Participant, that the Participant or
former Participant at any time within two years from his termination of
employment from all Companies which adopted this Plan and without written
consent of the Company, directly or indirectly owns, operates, manages,
controls or participates in the ownership, management, operation or control of
or is employed by, or
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is paid as a consultant or other independent contractor by a business which
competes or at any time did compete with the Company by which he was formerly
employed in a trade area served by the Company at the time distributions are
being made or to be made and in which the Participant or former Participant had
represented the Company while employed by it; and if the Participant or former
Participant continues to be so engaged 60 days after written notice has been
given to him, the Committee will forfeit all amounts otherwise due the
Participant or former Participant even though it may have been previously
vested under Article III or V. Notwithstanding the foregoing, the forfeiture
created by this Section will not apply to any Participant or former Participant
whose termination of employment from all Companies which adopted this Plan
occurs during the Plan Year in which a Change of Control occurs or during the
next three succeeding Plan Years following the Plan Year in which a Change of
Control occurs.
6.7 Expenses Incurred in Enforcing the Plan. The Company
will, in addition, pay a Participant for all legal fees and expenses incurred
by him in contesting or disputing his termination or in seeking to obtain or
enforce any benefit provided by this Plan if the termination occurs in the Plan
Year in which a Change of Control occurs or during the next three succeeding
Plan Years following the Plan Year in which a Change of Control occurs except
to the extent that the payment of those fees or expenses are restricted under
Section 6.8.
6.8 Restrictions on any Portion of Total Payments Determined
to be Excess Parachute Payments. In the event that any payment or benefit
received or to be received by a Participant in connection with a Change of
Control of Sysco, or the termination of his employment by the Company would not
be deductible, whether in whole or in part, by the
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Company or any affiliated company, as a result of Section 280G of the Code, the
benefits payable under this Plan shall first be reduced until no portion of the
Total Payments is not deductible as a result of Section 280G of the Code, or
the benefits payable under this Plan have been reduced to zero. If any further
reduction is necessary the benefits payable under the Sysco Corporation
Executive Deferred Compensation Plan will then be reduced under the terms of
that Plan. In determining this limitation: (a) no portion of the Total
Payments which the Participant has waived in writing prior to the date of the
payment of benefits under this Plan will be taken into account, (b) no portion
of the Total Payments which tax counsel, selected by the Company's independent
auditors and acceptable to the Participant, determines not to constitute a
"parachute payment" within the meaning of Section 280G(b)(2) of the Code will
be taken into account, (c) no portion of the Total Payments which tax counsel,
selected by the Company's independent auditors and acceptable to the
Participant, determines to be reasonable compensation for services rendered
within the meaning of Section 280G(b)(4) of the Code will be taken into
account, and (d) the value of any non-cash benefit or any deferred payment or
benefit included in the Total Payments will be determined by the Company's
independent auditors in accordance with Sections 280G(d)(3) and (4) of the
Code.
6.9 Benefits Upon Re-employment. If a former Participant who
is receiving benefit payments under this Plan is re-employed by the Company,
the payment of the benefit will continue during his period of re-employment.
The re-employed former Participant's benefit will not be changed as a result of
his re-employment.
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ARTICLE VII
ADMINISTRATION
7.1 Committee Appointment. The Committee will be appointed by
the Board of Directors. The initial Committee members will be Messrs.
Woodhouse, Lindig and Lowrey and Mrs. Riker. Each Committee member will serve
until his or her resignation or removal. The Board of Directors will have the
sole discretion to remove any one or more Committee members and appoint one or
more replacement or additional Committee members from time to time.
7.2 Committee Organization and Voting. The Committee will
select from among its members a chairman who will preside at all of its
meetings and will elect a secretary without regard to whether that person is a
member of the Committee. The secretary will keep all records, documents and
data pertaining to the Committee's supervision and administration of this Plan.
A majority of the members of the Committee will constitute a quorum for the
transaction of business and the vote of a majority of the members present at
any meeting will decide any question brought before the meeting. In addition,
the Committee may decide any question by vote, taken without a meeting, of a
majority of its members. A member of the Committee who is also a Participant
will not vote or act on any matter relating solely to himself.
7.3 Powers of the Committee. The Committee will have the
exclusive responsibility for the general administration of this Plan according
to the terms and provisions of this Plan and will have all powers necessary to
accomplish those purposes, including but not by way of limitation the right,
power and authority:
(a) to make rules and regulations for the administration of
this Plan;
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(b) to construe all terms, provisions, conditions and
limitations of this Plan;
(c) to correct any defect, supply any omission or reconcile
any inconsistency that may appear in this Plan in the manner and to the
extent it deems expedient to carry this Plan into effect for the
greatest benefit of all parties at interest;
(d) to determine all controversies relating to the
administration of this Plan, including but not limited to:
(1) differences of opinion arising between the Company
and a Participant except when the difference of opinion relates
to the entitlement to, the amount of or the method or timing of
payment of a benefit affected by a Change of Control, in which
event it shall be decided by judicial action; and
(2) any question it deems advisable to determine in
order to promote the uniform administration of this Plan for the
benefit of all parties at interest; and
(e) to delegate by written notice those clerical and
recordation duties of the Committee, as it deems necessary or advisable
for the proper and efficient administration of this Plan.
7.4 Committee Discretion. The Committee in exercising any
power or authority granted under this Plan or in making any determination under
this Plan shall perform or refrain from performing those acts using its sole
discretion and judgment. Any decision made by the Committee or any refraining
to act or any act taken by the Committee in good faith shall be final and
binding on all parties. The Committee's decision shall never be subject to de
novo review. Notwithstanding the foregoing, the Committee's decisions,
refraining to act or acting is to be subject to judicial review for those
incidents occurring during the Plan Year in which a Change of Control occurs
and during the next three succeeding Plan Years.
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7.5 Reimbursement of Expenses. The Committee will serve
without compensation for their services but will be reimbursed by Sysco for all
expenses properly and actually incurred in the performance of their duties
under this Plan.
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ARTICLE VIII
ADOPTION BY SUBSIDIARIES
8.1 Procedure for and Status After Adoption. Any Subsidiary
may, with the approval of the Committee, adopt this Plan by appropriate action
of its board of directors. The terms of this Plan will apply separately to
each Subsidiary adopting this Plan and its Participants in the same manner as
is expressly provided for Sysco and its Participants except that the powers of
the Board of Directors and the Committee under this Plan will be exercised by
the Board of Directors of Sysco alone. Sysco and each Subsidiary adopting this
Plan will bear the cost of providing plan benefits for its own Participants.
Sysco will initially pay the costs of the Plan each Plan Year. However, each
adopting Subsidiary will then be billed back for the actuarially determined
costs pertaining to it in accordance with the appropriate Financial Accounting
Standards Board pronouncements. It is intended that the obligation of Sysco
and each Subsidiary with respect to its Participants will be the sole
obligation of the Company that is employing the Participant and will not bind
any other Company.
8.2 Termination of Participation By Adopting Subsidiary. Any
Subsidiary adopting this Plan may, by appropriate action of its board of
directors, terminate its participation in this Plan. The Committee may, in its
discretion, also terminate a Subsidiary's participation in this Plan at any
time. The termination of the participation in this Plan by a Subsidiary will
not, however, affect the rights of any Participant who is working or has worked
for the Subsidiary as to benefits previously accrued by the Participant under
this Plan without his consent.
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ARTICLE IX
AMENDMENT AND/OR TERMINATION
9.1 Amendment or Termination of the Plan. The Board of
Directors may amend or terminate this Plan at any time by an instrument in
writing without the consent of any adopting Company.
9.2 No Retroactive Effect on Awarded Benefits. No amendment
will affect the rights of any Participant to the retirement benefit provided in
Article IV previously accrued by the Participant or will change a Participant's
rights under any provision relating to a Change of Control after a Change of
Control has occurred without his consent. However, the Board of Directors
retains the right at any time to change in any manner or to discontinue the
death benefit provided in Article V and/or the additional awarding of Credited
Service for vesting purposes after termination for total disability except for
a period of four years after a Change of Control for those persons who at that
time were covered by the death benefit and those persons who at that time were
covered by the additional Credited Service for vesting for disability, and to
change in any manner the retirement benefit provided in Article IV but only as
to accruals after the date of the amendment.
9.3 Effect of Termination. If this Plan is terminated, no new
death benefit will be provided and no further retirement benefit will accrue.
The retirement benefit accrued to the date of termination will be payable under
the conditions, at the time and in the form then provided in this Plan.
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ARTICLE X
FUNDING
10.1 Payments Under This Plan are the Obligation of the
Company. The Company will pay the benefits due the Participants under this
Plan; however should it fail to do so when a benefit is due, the benefit will
be paid by the trustee of that certain trust agreement, entered into
contemporaneously with this agreement, by and between the Company and Texas
Commerce Bank National Association. In any event, if the trust fails to pay
for any reason, the Company still remains liable for the payment of all
benefits provided by this Plan.
10.2 Plan May Be Funded Through Life Insurance Owned by the
Company or a Rabbi Trust. It is specifically recognized by both the Company
and the Participants that the Company may, but is not required to, purchase
life insurance so as to accumulate assets sufficient to fund the obligations of
the Company under this Plan and that the Company may, but is not required to
contribute any policy or policies it may purchase and any amount it finds
desirable to a trust established to accumulate assets sufficient to fund the
obligations of all of the Companies signatory to this Plan. However, under all
circumstances, the Participants will have no rights to any of those policies;
and, likewise, under all circumstances, the rights of the Participants to the
assets held in the trust will be no greater than the rights expressed in this
agreement. Nothing contained in the trust agreement which creates the funding
trust will constitute a guarantee by any Company that assets of the Company
transferred to the trust will be sufficient to pay any benefits under this Plan
or would place the Participant in a secured position ahead of general creditors
should the Company become insolvent or bankrupt. Any trust agreement prepared
to fund the
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Company's obligations under this Plan must specifically set out these
principles so it is clear in that trust agreement that the Participants in this
Plan are only unsecured general creditors of the Company in relation to their
benefits under this Plan.
10.3 Reversion of Excess Assets. Any adopting Company may, at
any time, request the actuary, who last performed the annual actuarial
valuation of the Sysco Retirement Plan, to determine the present value of the
Accrued Benefit assuming the Accrued Benefit to be fully vested (whether it is
or not), as of the end of the Plan Year coincident with or last preceding the
request, of all Participants and Beneficiaries of deceased Participants for
which all Companies are or will be obligated to make payments under this Plan.
If the fair market value of the assets held in the trust, as determined by the
Trustee as of that same date, exceeds the total of the Accrued Benefits of all
Participants and Beneficiaries by 25%, any Company may direct the trustee to
return to each Company its proportionate part of the assets which are in excess
of 125% of the Accrued Benefits. Each Company's share of the excess assets
will be the Participants' present value of the Accrued Benefit earned while in
the employ of that Company as compared to the total of the present value of the
Accrued Benefits earned by all Participants under the Plan times the excess
assets. For this purpose the present value of the Accrued Benefit will be
calculated using the data for the preceding Plan Year brought forward using the
assumptions used to determine the actuarially determined costs according to the
appropriate Financial Accounting Standards Board pronouncements. If there has
been a Change of Control, to determine excess assets, all contributions made
prior to the Change of Control will be subtracted from the fair market value of
the assets held in the trust as of the determination date but before the
determination is made.
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10.4 Participants Must Rely Only on General Credit of the
Company. It is also specifically recognized by both the Company and the
Participants that this Plan is only a general corporate commitment and that
each Participant must rely upon the general credit of the Company for the
fulfillment of its obligations under this Plan. Under all circumstances the
rights of Participants to any asset held by the Company will be no greater than
the rights expressed in this Plan. Nothing contained in this Plan will
constitute a guarantee by the Company that the assets of the Company will be
sufficient to pay any benefits under this Plan or would place the Participant
in a secured position ahead of general creditors of the Company. Though the
Company may establish or become a signatory to a Rabbi Trust, as indicated in
Section 10.1, to accumulate assets to fulfill of its obligations, the Plan and
any such trust will not create any lien, claim, encumbrance, right, title or
other interest of any kind in any Participant in any asset held by the Company,
contributed to any such trust or otherwise designated to be used for payment of
any of its obligations created in this Plan. No policy or other specific asset
of the Company has been or will be set aside, or will in any way be transferred
to the trust or will be pledged in any way for the performance of the Company's
obligations under this Plan which would remove the policy or asset from being
subject to the general creditors of the Company.
10.5 Funding of Benefits for Participants Subject to Canadian
Income Tax Laws is Prohibited. No Company employing a Participant whose income
is subject to the Canadian tax laws shall be permitted to fund its obligation
to that person through any Rabbi Trust, fund, sinking fund or other financial
vehicle even though under applicable law the assets held to fund the obligation
are still subject to the general creditors of the Company.
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ARTICLE XI
MISCELLANEOUS
11.1 Responsibility for Distributions and Withholding of Taxes.
The Committee will furnish information, to the Company last employing the
Participant, concerning the amount and form of distribution to any Participant
entitled to a distribution so that the Company may make or cause the Rabbi
Trust to make the distribution required. It will also calculate the deductions
from the amount of the benefit paid under this Plan for any taxes required to
be withheld by federal, state or local government and will cause them to be
withheld. If a Participant has accrued a benefit under this Plan while in the
service of more than one Company, each Company for which the Participant was
working will reimburse the disbursing agent for the amount attributable to the
benefit earned while the Participant was in the Credited Service of that
Company if it has not already provided that funding to the disbursing agent.
11.2 Limitation of Rights. Nothing in this Plan will be
construed:
(a) to give a Participant any right with respect to any
benefit except in accordance with the terms of this Plan;
(b) to limit in any way the right of the Company to terminate
a Participant's employment with the Company at any time;
(c) to evidence any agreement or understanding, expressed or
implied, that the Company will employ a Participant in any particular
position or for any particular remuneration; or
(d) to give a Participant or any other person claiming through
him any interest or right under this Plan other than that of any
unsecured general creditor of the Company.
11.3 Distributions to Incompetents or Minors. Should a
Participant become incompetent or should a Participant designate a Beneficiary
who is a minor or incompetent,
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the Committee is authorized to pay the funds due to the parent of the minor or
to the guardian of the minor or incompetent or directly to the minor or to
apply those funds for the benefit of the minor or incompetent in any manner the
Committee determines in its sole discretion.
11.4 Nonalienation of Benefits. No right or benefit provided
in this Plan will be transferable by the Participant except, upon his death, to
a named Beneficiary as provided in this Plan. No right or benefit under this
Plan will be subject to anticipation, alienation, sale, assignment, pledge,
encumbrance or charge, and any attempt to anticipate, alienate, sell, assign,
pledge, encumber, or charge the same will be void. No right or benefit under
this Plan will in any manner be liable for or subject to any debts, contracts,
liabilities or torts of the person entitled to such benefits. If any
Participant or any Beneficiary becomes bankrupt or attempts to anticipate,
alienate, sell, assign, pledge, encumber or charge any right or benefit under
this Plan, that right or benefit will, in the discretion of the Committee,
cease. In that event, the Committee may have the Company hold or apply the
right or benefit or any part of it to the benefit of the Participant or
Beneficiary, his or her spouse, children or other dependents or any of them in
any manner and in any proportion the Committee believes to be proper in its
sole and absolute discretion, but is not required to do so.
11.5 Reliance Upon Information. The Committee will not be
liable for any decision or action taken in good faith in connection with the
administration of this Plan. Without limiting the generality of the foregoing,
any decision or action taken by the Committee when it relies upon information
supplied it by any officer of the Company, the Company's legal counsel, the
Company's actuary, the Company's independent accountants
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or other advisors in connection with the administration of this Plan will be
deemed to have been taken in good faith.
11.6 Amendment Applicable to Active Participants Only Unless it
Provides Otherwise. No benefit which has accrued to any Participant who has
died, retired, become disabled or separated or whose participation has become
frozen prior to the execution of an amendment shall be changed in amount or
subject to any adjustment provided in that amendment unless the amendment
specifically provides that it will apply to those persons and it does not have
the effect of reducing those persons Accrued Benefit as then fixed without
their consent.
11.7 Severability. If any term, provision, covenant or
condition of this Plan is held to be invalid, void or otherwise unenforceable,
the rest of this Plan will remain in full force and effect and will in no way
be affected, impaired or invalidated.
11.8 Notice. Any notice or filing required or permitted to be
given to the Committee or a Participant will be sufficient if in writing and
hand delivered or sent by U.S. mail to the principal office of the Company or
to the residential mailing address of the Participant. Notice will be deemed
to be given as of the date of hand delivery or if delivery is by mail, as of
the date shown on the postmark.
11.9 Gender and Number. If the context requires it, words of
one gender when used in this Plan will include the other genders, and words
used in the singular or plural will include the other.
11.10 Governing Law. The Plan will be construed, administered
and governed in all respects by the laws of the State of Texas.
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11.11 Effective Date. This Plan will be operative and effective
on July 3, 1988.
IN WITNESS WHEREOF, the Company has executed this document on
this 15th day of February, 1996, amending and restating the Plan to incorporate
the First Amendment, which was executed on this same date but made effective
July 1, 1995, into the last previously amended and restated Plan which was
executed on September 19, 1995.
SYSCO CORPORATION
By
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