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EXHIBIT 4.6
FURR'S/BISHOP'S, INC.
DEFERRED COMPENSATION PLAN
Furr's/Bishop's, Inc. adopts this unfunded deferred compensation plan
effective as of December 10, 1999 to provide additional benefits to eligible
directors and employees.
SECTION ONE DEFINITIONS
"Account" means a Participant's Interest Account and CSU Account,
individually and collectively, as the context requires, provided that the use of
the term Account hereunder shall not be construed as entitling such Participant
to an Accrued Benefit based on more than one of his two Accounts at the time of
reference and, without limitation, when it is necessary to distinguish among the
two types of his Accounts, reference shall be made to the specific type of
Account. A Participant's Account shall be utilized solely as a device for the
measurement and determination of the amount to be paid to the Participant
pursuant to the Plan. A Participant's Account shall not constitute or be treated
as a trust fund of any kind.
"Accrued Benefit" means the Value of whichever of a Participant's Interest
Account or CSU Account has the greater Value as of the Valuation Date coincident
with or next preceding the date of reference.
"Administrator" means the person(s) designated to administer the Plan
pursuant to Plan Section Two.
"Beneficiary" means any person or entity designated by a Participant in
accordance with Plan Section Eleven.
"Bonus Compensation" means an amount, if any, determined by the Board of
Directors of the Employer (in its sole discretion) that is payable in cash to a
Participant who is an Employee on the last day of the Plan Year for which the
amount is paid, in addition to his salary for the Plan Year and from which
Pre-Tax Contributions will be deducted under the terms of this Plan. With
respect to any Participant, only amounts which are paid to him for a period
while he is a Participant are Bonus Compensation.
"Change in Control" shall be deemed to occur on such date as any one person
(or group of persons which are acting in concert) shall own (directly or
indirectly) or control (directly or indirectly) 51% or more of the issued and
outstanding Stock of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Share Units" or "CSU" means the hypothetical Shares credited to a
Participant's CSU Account.
"Company" means Furr's/Bishop's, Inc., a Delaware corporation.
"Compensation". With respect to a Participant who is a Director,
"Compensation" means the amounts which would (but for the Pre-Tax Contributions
under this Plan) be paid to the Participant by the Company in connection with
the performance of services as a member of the Board of Directors of the
Employer with respect to the Payroll Period of reference
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(such payment customarily being made on the last Tuesday of such Payroll
Period), and from which the Pre-Tax Contributions will be deducted under the
terms of this Plan. With respect to a Participant who is an Employee,
"Compensation" means the amounts which would (but for the Pre-Tax Contributions
under this Plan) be paid to the Participant by the Employer with respect to the
Payroll Period of reference (such payment customarily being made on the last
Tuesday in such Payroll Period), and from which the Pre-Tax Contributions will
be deducted under the terms of this Plan.
With respect to any Participant, whether he is a Director or an Employee,
only amounts which are paid to him for a period while he is a Participant are
Compensation.
"Considered Compensation". With respect to a Participant who is a Director,
"Considered Compensation" means the quotient of (x) divided by (y), where (x) is
a Participant's annualized fees earned by the Participant for the performance of
services as a member of the Board of Directors of the Employer (including
without limitation, any fees for board membership, committee membership, annual
retainers, meeting fees and without taking into account any actual or potential
reductions in such fees for any purpose, and including without limitation, any
Pre-Tax Contributions hereunder) on the first day of the Plan Year of reference,
and (y) is 4. With respect to a Participant who is an Employee, "Considered
Compensation" means the quotient of (x) divided by (y), where (x) is a
Participant's annualized basic rate of salary (i.e. without limitation,
excluding all special payments including bonuses and without taking into account
any actual or potential reductions in such salary for any purpose, including
without limitation, any Pre-Tax Contributions hereunder) on the first day of the
Plan Year of reference, and (y) is 26.
With respect to any Participant, whether he is a Director or an Employee,
only amounts which are paid to him for a period while he is a Participant are
Considered Compensation.
"CSU Account" means the Account, established in the name of each
Participant on the Employer's books, which is credited with the Shares
attributable to such Participant's Pre-Tax Contributions, and reinvested
dividends, and debited with distributions, as provided in this Plan.
"Declaration of Hardship" means the written request, and sworn declaration,
filed by a Participant with the Administrator setting forth the basis for such
Participant's receipt of a Hardship Distribution.
"Deemed Dividends" means, with respect to each Participant's CSU Account,
the product of (x) multiplied by (y), where (x) is each cash dividend declared
with respect to a Share, and (y) is the number of CSUs in such Participants CSU
Account as of the Valuation Date occurring during the Payroll Period in which
the dividend is declared.
"Designated Subsidiary" means a Subsidiary that has been designated by the
Governing Authority from time to time in its sole discretion as eligible to
adopt this Plan for the benefit of its Eligible Employees.
"Director" means a member of the Board of Directors of the Company or of a
Designated Subsidiary, as determined under the books and records of the Company,
who is not an Employee.
"Earnings" means, and shall be credited to each Interest Account on each
Valuation Date occurring during the Plan Year of reference, an amount equal to
the product of (a) the Value of a Participant's Interest Account as of the
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immediately preceding Valuation Date, and (b) the quotient of (x) divided by
(y), where (x) is the greatest of the 1-year London Interbank Offered Rate
("LIBOR") as reported in the Wall Street Journal as of the first business day of
the Plan Year during which occurs such Valuation Date ("First Business Day")
plus a spread equal to the Company's LIBOR based borrowing spread in effect as
of the First Business Day less 1/2%, the Company's incremental borrowing rate as
of the First Business Day less 1/2%, or the Prime Rate as published in the Wall
Street Journal as of the First Business Day less 1/2%, and (y) is 4 in the case
of a Participant who is a Director, or 26 in the case of a Participant who is an
Employee.
"Effective Date" means December 10, 1999.
"Eligible Director" means a Director who is designated, in writing, by the
Administrator (in its sole discretion) as an Eligible Director.
"Eligible Employee" means an Employee who is a member of management of the
Employer, a highly compensated employee of the Employer, or an officer of the
Employer, and, is designated, in writing, by the Administrator (in its sole
discretion) as an Eligible Employee.
"Employee" means an employee of the Company or of a Designated Subsidiary
as determined under the books and records of the Company.
"Employer" means, collectively, the Company and each Designated
Subsidiary.
"Enrollment Form" means a written agreement between the Company and the
Participant in which the Participant agrees to a reduction of his Compensation
and/or Bonus Compensation, with such amounts to be credited to his Interest and
CSU Accounts. The Enrollment Form shall be in a form acceptable to the
Administrator and, except as provided in Plan Section Four, shall be entered
into at least 60 days prior to the Entry Date to which it applies, and shall
thereafter remain in effect until changed in the manner provided under this
Plan.
"Entry Date" means December 27, 1999 and the first day of each succeeding
Quarter.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Fair Market Value" of a Share on the Valuation Date of reference shall be
the closing price of Stock on such date, which shall be (a) if the Stock is
listed or admitted for trading on any United States national securities
exchange, the last reported sale price of Stock on such exchange as reported in
any newspaper of general circulation, (b) if the Stock is quoted on NASDAQ or
any similar system of automated dissemination of quotations of securities prices
in common use, the mean between the closing bid and asked quotations for such
day of the Stock on such system, or (c) if neither clause (a) nor (b) is
applicable, a value determined by any fair and reasonable means prescribed by
the Governing Authority.
"Governing Authority" means the Board of Directors of the Company.
"Hardship" means an unanticipated emergency that is caused by an event
beyond the control of the Participant and that would result in severe financial
hardship to the Participant, if early withdrawal of the Participant's Accrued
Benefit were not permitted.
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"Hardship Withdrawal" shall mean the withdrawal made by reason of a
Hardship in accordance with the provisions of Plan Section Ten.
"Installment Election" means the irrevocable election of a Participant that
is timely filed with the Administrator not later than 90 days before Separation,
to receive the payment of his Accrued Benefit in equal quarterly, semiannual, or
annual installments (as further described in Plan Section Seven) as of the
corresponding Valuation Date(s), over the period, not to exceed 10 years,
selected by the Participant.
"Interest Account" means the Account established in the name of each
Participant on the Employer's books, which is credited with Pre-Tax
Contributions and Earnings, and debited with distributions, all as provided in
this Plan.
"Participant" means an Eligible Director or an Eligible Employee who
becomes a Participant as provided in Plan Section Three. A person shall remain a
Participant until he no longer has an Accrued Benefit.
"Payroll Period". With respect to a Participant who is a Director, "Payroll
Period" means each Quarter for which a Participant is paid Compensation. With
respect to a Participant who is an Employee, "Payroll Period" means each of the
26 two-week periods during a Plan Year for which a Participant is paid
Compensation.
"Plan" means this Furr's/Bishop's, Inc. Deferred Compensation Plan, as
amended from time to time.
"Plan Year" means the period beginning December 10, 1999 and ending
December 31, 1999 and each succeeding 12-month period beginning each January 1
and ending on the following December 31.
"Pre-Tax Contribution" means any reduction in a Participant's Compensation
or Bonus Compensation which is credited to his Account under this Plan.
"Quarter" means each of the quarters occurring during a Plan Year.
"Separation". With respect to an Eligible Director, "Separation" means a
person's ceasing to be an Eligible Director by reason of the Eligible Director's
ceasing to be a member of the Employer's Board of Directors for any reason
(including death or disability). With respect to an Eligible Employee,
"Separation" means a person's ceasing to be an Eligible Employee by reason of
termination of employment with the Employer for any reason (including death or
disability).
"Share" means a share of Stock.
"Stock" means the common voting stock, $0.01 par value per share, of the
Company.
"Subsidiary" means any corporation which is a member of the controlled
group of corporations (as defined in section 414(b) of the Code) that includes
the Company and any trade or business (whether or not incorporated) that is
under common control (as defined in section 414(c) of the Code) with the
Company.
"Value" means the value of an Account, determined as provided in this Plan,
as reflected on the properly kept books of the Company.
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"Valuation Date" means the first Tuesday of each Payroll Period.
SECTION TWO ADMINISTRATION
(a) Employer Duties. The Employer shall, upon request or as may be
specifically required under the Plan, furnish or cause to be furnished all of
the information or documentation in its possession or control which is necessary
or required by the Administrator to perform its duties and functions under the
Plan.
(b) Governing Authority Duties. The Governing Authority shall, upon request
by the Administrator or as may be specifically required under the Plan, furnish
or cause to be furnished all of the information or documentation in its
possession or control which is necessary or required by the Administrator to
perform its duties and functions under the Plan.
(c) Appointment of Administrator. The Governing Authority may appoint in
writing one or more persons to serve as Administrator.
Any Administrator appointed under this Plan shall be an Employee and shall
serve without compensation; and such person shall automatically cease to be an
Administrator upon his termination of employment by the Employer. An
Administrator may resign at any time by giving 30 days' prior written notice to
the Governing Authority. The Governing Authority may remove an Administrator at
any time by written notice, and may appoint a successor Administrator.
If at any time there shall be 2 or more persons acting as Administrator,
such persons shall conduct the business of the Administrator by meetings, held
from time to time at their discretion, and the actions of the Administrator
shall be determined by majority vote, which may be made by telephone, wire,
cable or letter, and the Administrator may designate, in writing, 1 or more of
its members who shall have authority to sign or certify that any action taken by
the Administrator represents the will of, and is binding on, the Administrator.
In the event the Administrator has not been effectively appointed under
this Section Two at the time of reference, the Company shall act as the
Administrator.
(d) Duties of Administrator. The Administrator shall be responsible for
establishing and carrying out the objectives of the Plan, in accordance with its
terms, for the exclusive benefit of its Participants.
(e) Powers of Administrator. The Administrator shall have sole and
exclusive authority, discretion and responsibility for administering, construing
and interpreting the Plan. The Administrator shall have all powers and
discretion as may be necessary to discharge its duties and responsibilities
under this Plan, including, but not by way of limitation, the power to interpret
or construe the Plan, to make rules and regulations for the administration of
the Plan, to determine all questions of eligibility, status and other rights of
Participants, Beneficiaries and other persons, to determine the amount, manner
and time of the payment of any benefits under this Plan, and to resolve any
dispute which may arise under this Plan involving Participants or Beneficiaries.
The Administrator may engage agents to assist it and may engage legal counsel,
who may be counsel for the Employer. The Administrator shall not be responsible
for any action taken or not taken on the advice of such counsel.
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Any action on matters within the discretion of the Administrator shall be
final and conclusive as to all persons affected. The Administrator shall at all
times endeavor to exercise its discretion in a nondiscriminatory manner.
No member of the Administrator shall vote or act upon any matter involving
his own rights, benefits or other participation under this Plan, and in such
case, the remaining member or members of the Administrator shall appoint a
member pro-tem to act in the place of the interested member, provided, however,
that if all members of the Administrator shall be disqualified under this
paragraph with regard to one or more matters, the Chief Financial Officer of the
Company shall appoint a qualifying person(s) to be the Administrator with regard
to such matters.
(f) Benefit Claims. All claims for benefits shall be filed in writing with
the Administrator by the claimant or by his authorized representative.
(1) If a claim is denied, notice of denial shall be furnished by the
Administrator to the claimant within 90 days after the receipt of the claim
by the Administrator, unless special circumstances require an extension of
time for processing the claim, in which event notification of the extension
shall be provided to the claimant prior to the expiration of the initial
90-day period. The extension notification shall indicate the special
circumstances requiring the extension of time and the date by which the
Administrator expects to render its decision. Any such extension shall not
exceed 90 days.
The Administrator shall provide adequate notice in writing to any
claimant whose claim is denied. The notice shall set forth the specific
reasons for such denial, specific reference to pertinent Plan provisions
upon which the denial is based, a description of any additional material or
information necessary for the claimant to perfect his claim, and an
explanation of why such material or information is necessary. The notice
shall be written in a manner calculated to be understood by the claimant.
(2) A claimant may appeal to the Administrator any adverse
determination of his claim in writing within 75 days after his receipt of
the Administrator's notice of denial of benefits. The Administrator's
notice of claim denial shall contain a statement that the failure to appeal
the denial to the Administrator in writing within the 75-day period shall
render the Administrator's determination final, binding and conclusive. The
notice of claim denial shall also include appropriate information as to the
steps to be taken if the claimant wishes to submit his claim for review.
If the claimant requests a review of his claim denial, he may review
pertinent Plan documents and he may submit issues and comments in writing.
(3) The Administrator shall re-examine all facts related to the
appeal and make a final determination as to whether the denial of benefits
is justified under the circumstances. A decision on review shall be
provided in writing to the claimant no later than 60 days following the
Administrator's receipt of the request. The decision on review shall be
written in a manner calculated to be understood by the claimant. If special
circumstances require an extension of time to process the appealed claim,
notification of the extension shall be provided to the claimant prior to
the commencement of the extension. Any such extension shall not exceed 60
days.
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(g) Bond and Expenses of Administrator. The Administrator shall serve
without bond unless state or federal statutes require otherwise, in which event
the Employer shall pay the premium. The expenses of the Administrator shall be
paid by the Employer. Such expenses shall include all expenses incident to the
functioning of the Administrator, including, but not by way of limitation, fees
of accountants, counsel and other specialists and other costs of administering
the Plan.
(h) Administrator Records and Reports. The Administrator shall maintain
adequate records of all of its proceedings and acts and all such books of
account, records, and other data as may be necessary for administration of the
Plan. The Administrator shall make available to each Participant upon his
request such of the Plan's records as pertain to him for examination at
reasonable times during normal business hours.
(i) Reliance on Tables. In administering the Plan, the Administrator shall
be entitled to the extent permitted by law to rely conclusively on all tables,
valuations, certificates, opinions and reports which are furnished by
accountants, legal counsel or other experts employed or engaged by the
Administrator.
SECTION THREE PARTICIPANTS
(a) Eligibility. Only a Director or an Employee designated in writing,
respectively, as an Eligible Director or as an Eligible Employee on a list
maintained by the Administrator (and communicated in writing to the Director or
Employee in question) can become a Participant in this Plan.
(b) Participation. An Eligible Director or an Eligible Employee shall
become a Participant under this Plan by completing an Enrollment Form and filing
it with the Administrator.
(c) Agreement to Be Bound. By becoming a Participant, each Eligible
Director and each Eligible Employee shall for all purposes be deemed
conclusively to have assented to the provisions of this Plan and to all
amendments to this Plan.
SECTION FOUR CONTRIBUTIONS
(a) Election. An Eligible Director, an Eligible Employee, or Participant
may elect to make Pre-Tax Contributions under this Plan by filing an Enrollment
Form with the Administrator at least 60 days (or at any time prior to the Entry
Date if elected and installed as a Director or employed as an Employee less than
45 days prior to the Entry Date of reference) prior to the Entry Date after
which such Pre-Tax Contributions will be deducted from his Compensation and/or
Bonus Compensation, and such election will remain in full effect until a new
Enrollment Form is properly filed with the Administrator. Notwithstanding any
Plan provision to the contrary, an Eligible Director or Employee can file an
Enrollment Form with the Administrator within the 30 days prior to the December
27, 1999 Entry Date. Only the last Enrollment Form delivered to the
Administrator on or before the required delivery date will be considered the
Enrollment Form of the Participant with respect such Entry Date for purposes of
the preceding sentence.
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(b) Amount of Pre-Tax Contribution Elected. The Enrollment Form shall allow
a Participant who is an Eligible Director to elect to reduce prospectively his
Compensation (and make a Pre-Tax Contribution) by an amount equal to the product
of (x) multiplied by (y), where (x) is any whole percentage which does not
exceed 100%, and (y) is the Participant's Considered Compensation. The
Enrollment Form shall allow a Participant who is an Eligible Employee to elect
to reduce prospectively his Compensation (and make a Pre-Tax Contribution) by an
amount equal to the product of (x) multiplied by (y), where (x) is any whole
percentage which does not exceed 40%, and (y) is the Participant's Considered
Compensation. Additionally, the Enrollment Form shall allow a Participant who is
an Eligible Employee to elect to reduce prospectively his Bonus Compensation
(and make a Pre-Tax Contribution) by an amount equal to the product of (x)
multiplied by (y), where (x) is any whole percentage which does not exceed 100%,
and (y) is the Participant's Bonus Compensation.
Notwithstanding any Plan provision to the contrary, any Enrollment Form
filed by an Eligible Director or an Eligible Employee with the Administrator
within the 30 days prior to the December 27, 1999 Entry Date shall apply only to
Compensation paid for services performed in Plan Years beginning after December
31, 1999; provided, however, that an Enrollment Form filed by an Eligible
Employee with the Administrator within the 30 days prior to December 27, 1999
may apply to Bonus Compensation paid with respect to the Plan Year ended
December 31, 1999.
(c) Furnishing of Enrollment Forms. The Administrator automatically shall
provide an Enrollment Form to each Director and Employee within a reasonable
time after becoming an Eligible Director or an Eligible Employee, as the case
may be, and also shall provide an Enrollment Form to each Participant within a
reasonable time after receiving a request for such Enrollment Form.
SECTION FIVE ACCOUNTS
The Employer shall maintain an Interest Account and a CSU Account in the
name of each Participant, and to which shall be debited and credited the
following amounts and CSUs:
(a) Pre-Tax Contributions Credits to Interest Account. The Administrator
shall credit each Participant's Interest Account as of each Valuation Date with
a dollar amount equal to the Participant's Pre-Tax Contributions for the
immediately preceding Payroll Period.
(b) CSU Credits to CSU Account. The Administrator shall credit each
Participant's CSU Account as of each Valuation Date with that number of CSUs
which are equal to the quotient of (x) divided by (y), where (x) is the amount
of the Participant's Pre-Tax Contributions with respect to, and any Deemed
Dividends credited during, the immediately preceding Payroll Period and (y) is
the Fair Market Value of a Share on such Valuation Date.
(c) Earnings Credited to Interest Account. The Administrator shall credit
each Participant's Interest Account as of each Valuation Date with its Earnings.
(d) Quarterly Statements. Within 30 days after the end of each Quarter, the
Administrator shall furnish each Participant with a statement showing the Value
of his Account as of the last Valuation Date occurring during such Quarter.
SECTION SIX VESTING
A Participant shall always be 100% vested in his Accrued Benefit.
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SECTION SEVEN PAYMENT
(a) Immediate Lump Sum Payment. Except as provided under (b) of this
Section Seven, the Participant's Accrued Benefit shall be paid in a single lump
sum payment to the Participant by the Employer within a reasonable time (not to
exceed 30 days) after the first Valuation Date immediately following his
Separation, and such distribution shall be in Shares or in cash determined as
follows:
(1) CSU Account Has Greater Value. In the event the Participant's
CSU Account has a greater Value than his Interest Account on the Valuation
Date of reference, then the distribution shall consist of the number of
Shares equal to the number of CSUs credited to his CSU Account on such
Valuation Date.
(2) Interest Account Has Greater Value. In the event the
Participant's Interest Account has a greater Value than his CSU Account on
the Valuation Date of reference, then the distribution shall be in cash in
an amount equal to the Value of his Interest Account on such Valuation
Date.
(b) Installment Payments. Where a Participant has filed a timely
Installment Election at any time prior to the 90th day before his Separation
designating the date(s) of distribution, such distribution(s) shall be made in
the manner selected by the Participant, in Shares or in cash, determined as
follows:
(1) Date of Actual Distribution(s). The distribution(s) shall be
made by the Employer as soon as reasonably possible following the Valuation
Date as of which the distribution is required to be made.
(2) Amount of Installment Payment(s). The amount which the
Participant shall receive on each of the payment dates described in (b)(1)
shall be equal to the greater of the following determined as of the
Valuation Date immediately preceding the subject installment payment:
a) CSU Account Has Greater Value. In the event the Participant's
CSU Account has a greater Adjusted Value than his Interest Account on the
Valuation Date of reference, then the distribution shall consist of the
product of (x) multiplied by (y), where (x) is the number of CSUs credited
to his CSU Account on such Valuation Date, and (y) is the Distribution
Factor for the distribution of reference.
b) Interest Account Has Greater Value. In the event the
Participant's Interest Account has a greater Adjusted Value than his CSU
Account on the Valuation Date of reference, then the distribution shall be
in cash in an amount equal to the product of (x) multiplied by (y), where
(x) is the Adjusted Value of his Interest Account, and (y) is the
Distribution Factor for the distribution of reference.
"Adjusted Value" relates to the calculation of the Value of each
Account on each date of distribution under (b)(1) above, and shall be
calculated in the manner otherwise provided in this Plan except, as of the
date of each distribution, such Accounts shall be reduced:
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(i) in the case of the CSU Account, by the number of CSUs (i.e.
Shares) equal to the product of (x) multiplied by (y), where (x) is
the CSUs credited to such CSU Account on such Valuation Date and (y)
is the Distribution Factor for such date of distribution; and
(ii) in the case of the Interest Account, by an amount equal to
the product of (x) multiplied by (y), where (x) is the Value of the
Interest Account on such Valuation Date and (y) is the Distribution
Factor for such date of distribution.
"Distribution Factor" shall mean a fraction whose numerator is 1,
and whose denominator is the number of payments elected by the Participant
on his Installment Election form, less the number of payments which have
previously been made to Participant. Notwithstanding any other provision in
this Plan, in the event of the death of the Participant prior to the
completion of all installment payments, an immediate lump sum distribution
of the Adjusted Value of his Account shall be made as if such date of death
was the date of his Separation.
SECTION EIGHT SOURCE OF PAYMENT
In the event a Participant's Accrued Benefit (including, without
limitation, a Hardship Withdrawal) shall be paid in the form of Shares, such
payment will be made using Shares from the Company's authorized but unissued, or
Treasury Shares; provided, without limitation, that no special or separate fund
or segregation of Shares shall be made to assure such payments in such a way as
to make this Plan a "funded" plan for purposes of ERISA or the Code; provided,
however, that the Employer may, in its sole discretion, establish a bookkeeping
reserve to meet its obligations under the Plan.
Nothing contained in the Plan shall create or be construed to create a
trust of any kind, and nothing contained in the Plan nor any action taken
pursuant to the provisions of the Plan shall create or be construed to create a
fiduciary relationship between the Employer and a Participant, Beneficiary,
employee or other person. To the extent that any person acquires a right to
receive payments from the Employer under the Plan, such right shall be no
greater than the right of any unsecured general creditor of the Employer.
For purposes of the Code, the Employer intends this Plan to be an unfunded,
unsecured promise on the part of the Employer to pay in the future. For purposes
of ERISA, the Employer intends the Plan to be an unfunded plan primarily for the
benefit of a select group of management or highly compensated employees of the
Employer for the purpose of qualifying the Plan for the "top hat" plan exception
under sections 201(2), 301(a)(3) and 401(a)(1) of ERISA.
SECTION NINE PROVISIONS RELATING TO THE CSUs CREDITED TO THE CSU ACCOUNT.
(a) Adjustments Upon Changes in Capitalization. If a stock dividend, stock
split, spinoff, recapitalization, merger, consolidation, exchange of shares or
the like, occurs during any Payroll Period, as a result of which shares of any
class shall be issued in respect to Shares, or such Shares shall be changed into
a different number of the same or another class or classes, the number of CSUs
credited to the CSU Accounts of Participants and the calculation of the Fair
Market Value of such CSUs shall be appropriately adjusted by the Administrator
in a manner that in its sole discretion will make the CSUs have a Fair Market
Value after such event which is equal to the Fair Market Value of the Shares
immediately prior to such event.
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(b) Conditions upon Issuance of Shares. Shares shall not be issued unless
such issuance and delivery shall comply with all applicable provisions of law,
domestic or foreign, and the requirements of any stock exchange upon which the
Shares may then be listed, including, in each case the rules and regulations
promulgated thereunder, and shall be further subject to the approval of counsel
for the Company with respect to such compliance, which may include a
representation and warranty from the Participant that the Shares are being
acquired only for investment for his own account and without any present
intention to publicly sell or distribute such Shares without an exemption from
or compliance with applicable securities laws.
(c) Voting and Registration. A Participant will have no beneficial or
record interest or voting right in or other privileges relating to Shares as a
result of the crediting of CSUs to his CSU Account, and will obtain such rights
and privileges only upon the issuance of a certificate representing the
equivalent Shares.
(d) Execution of Receipts and Releases. Any payment or any issuance or
transfer of Shares to any person shall be in full satisfaction of all claims
hereunder against the Plan, and the Administrator may require such person, as a
condition precedent to receiving delivery of Shares, to execute a receipt and
release therefor in such form as it shall determine.
SECTION TEN HARDSHIP WITHDRAWALS
(a) Amount of Hardship Withdrawal. A Participant who has a Hardship, as
established by the filing of a written Declaration of Hardship with the
Administrator, may make a Hardship Withdrawal of his Accrued Benefit in an
amount of no more than the amount necessary to meet the Hardship.
(b) Penalty Limitation on Pre-Tax Contributions. In the event of a Hardship
Withdrawal, the withdrawing Participant's Pre-Tax Contributions automatically
will be discontinued effective with the Payroll Period immediately following the
filing of the Declaration of Hardship, and such Participant shall not be
entitled to recommence Pre-Tax Contributions until the first Entry Date
following the first Quarter after the filing of the Declaration of Hardship.
SECTION ELEVEN DESIGNATION OF BENEFICIARIES
(a) Designation by Participant. A Participant's written designation of one
or more persons or entities as his Beneficiary shall operate to designate the
Participant's Beneficiary under this Plan. The Participant shall file with the
Administrator a copy of his Beneficiary designation under the Plan on a form
supplied to the Participant by the Administrator. The last such proper
designation received by the Administrator shall be controlling, and no
designation, or change or revocation of a designation shall be effective unless
received by the Administrator prior to the Participant's death.
(b) Lack of Designation. If no Beneficiary designation is in effect at the
time of a Participant's death, if no designated Beneficiary survives the
Participant, or if the otherwise applicable Beneficiary designation conflicts
with applicable law, the Participant's estate shall be the Beneficiary. The
Administrator may direct the Employer to retain any unpaid Accrued Benefit,
without liability for any interest, until all rights to the unpaid Accrued
Benefit are determined. Alternatively, the Administrator may direct the Employer
to pay such Accrued Benefit into any
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court of appropriate jurisdiction. Any such payment shall completely
discharge the Employer of any liability under the Plan.
SECTION TWELVE AMENDMENT, TERMINATION AND CHANGE IN CONTROL
(a) Amendment or Termination. The Plan may without cause and without prior
notice be amended, suspended or terminated, in whole or in part, by the
Governing Authority, but no such action shall retroactively impair the rights of
any person to payment of his Accrued Benefit as determined immediately prior to
the later of the date of adoption, or the effective date, of such amendment,
suspension, or termination; provided, further, that the Plan may be amended by
the Governing Authority with respect to any matters which it reasonably
concludes involve primarily clarification of one or more provisions of the Plan,
or relate primarily to Plan administration.
(b) Termination, Suspension or Change in Control. Without limiting the
generality of any other provision of this Plan, if (1) the Plan is suspended for
more than 6 months, (2) benefits under the Plan are substantially reduced
prospectively, or the Plan is terminated, or (3) the Company experiences a
Change in Control, each Participant shall have the right, for a period
commencing on the occurrence of any actions or occurrences described in (1)
through (3), and ending on the determined day following written receipt of
notice of the actions or occurrences described in (1) through (3), to elect, in
a writing filed with the Administrator, to have the full amount of his Accrued
Benefit distributed to him in the same manner as it would be distributed had he
incurred a Separation on the date he files such election with the Administrator.
SECTION THIRTEEN GENERAL PROVISIONS
(a) No Assignment. The right of any Participant or other person to the
payment of the Participant's Accrued Benefit shall not be assigned, transferred,
pledged or encumbered, either voluntarily or by operation of law, except as
provided in Plan Section Eleven with respect to designations of Beneficiaries.
If any person shall attempt to assign, transfer, pledge or encumber any portion
of his Accrued Benefit, or if by reason of his bankruptcy or other event
happening at any time any such payment would be made subject to his debts or
liabilities or would otherwise devolve upon anyone else and not be enjoyed by
him or his Beneficiary, the Administrator may, in its sole discretion, terminate
such person's interest in any such payment and direct that the same be held and
applied to or for the benefit of such person, his spouse, children or other
dependents, or any other persons deemed to be the natural objects of his bounty,
or any of them, in such manner as the Administrator may deem proper.
(b) Incapacity. If the Administrator shall find that any person is unable
to care for his financial affairs because of illness or accident or is a minor,
any payment due (unless a prior claim for such payment shall have been made by a
duly appointed guardian, committee or other legal representative) may be paid to
his spouse, a child, a parent, or a brother or sister, or any other person
deemed by the Administrator, in its sole discretion, to have incurred expenses
for such person otherwise entitled to payment, in such manner and proportions as
the Administrator may determine. Any such payment shall be a complete discharge
of the liabilities of the Employer under the Plan as to the amount paid.
(c) Information Required. Each Participant shall file with the
Administrator such pertinent information concerning himself and his
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Beneficiary as the Administrator may specify, and no Participant or Beneficiary
or other person shall have any rights or be entitled to any benefits under the
Plan unless such information has been filed by, or with respect to, him.
(d) Election by Participant. All elections, designations, requests,
notices, instructions and other communications from a Participant, Beneficiary
or other person to the Administrator required or permitted under the Plan shall
be in such form as is prescribed from time to time by the Administrator, shall
be mailed by first-class mail or delivered to such location as shall be
specified by the Administrator, and shall be deemed to have been given and
delivered only upon actual receipt by the Administrator at such location.
(e) Notices by Administrator. All notices, statements, reports and other
communications from the Administrator to any Director, Employee, Eligible
Director, Eligible Employee, Participant, Beneficiary or other person required
or permitted under the Plan shall be deemed to have been duly given when
delivered to, or when mailed first-class mail, postage prepaid and addressed to,
such Director, Employee, Eligible Director, Eligible Employee, Participant,
Beneficiary or other person at his address last appearing on the records of the
Employer. A Participant and any Beneficiary must file with the Employer from
time to time in writing his mailing address and any change of that address.
(f) No Rights To Continued Employment Or Directorship. Neither the Plan nor
any action taken under the Plan shall confer upon any person any right with
respect to continuance of employment by the Company or by any Subsidiary, nor
shall it interfere in any way with the right of the Company or any Subsidiary to
terminate such employment at any time, with or without cause. Neither the Plan
nor any action taken under the Plan shall confer upon any person any right with
respect to continuance of a directorship of the Company or of any Subsidiary,
nor shall it interfere in any way with the right of the shareholders to remove
him at any time, with or without cause.
(g) Withholding of Taxes. The Employer shall deduct from the Participant's
nondeferred Compensation any amount required to be paid by the Participant, as
of the effective date of reducing his Compensation or Bonus Compensation under
this Plan, as a federal, state or local tax; and from the Shares or cash
distributed under this Plan a number of Shares or cash having a Fair Market
Value (as determined under this Plan) on such distribution date equal to any
amounts required to be paid or withheld by the Employer or Administrator with
respect to federal, state or local taxes which has not been reimbursed to the
Employer or Administrator in cash by the Participant on or before the date of
distribution. By his participation in the Plan, each Participant agrees to all
such deductions.
(h) Waivers. Any waiver of any right granted pursuant to this Plan shall
not be valid unless the same is in writing and signed by the party waiving such
right. Any such waiver shall not be deemed to be a waiver of any other rights.
(i) Benefit. This Plan and the rights and obligations under this Plan shall
be binding upon all parties and inure to the benefit of only the Participants,
Beneficiaries and their respective legal representatives.
(j) Payment of Expenses. All expenses incident to the administration,
termination, or protection of the Plan, including, but not limited to, legal and
accounting fees, shall be paid by the Company.
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(k) Records. Records of the Company as to any matters relating to this Plan
will be conclusive on all persons.
(l) No Rights Implied. All deductions from Compensation or Bonus
Compensation received or held by the Employer as a result of participation in
the Plan may be used by the Employer for any corporate purpose, and the Employer
shall not be obligated to segregate such deductions. Nothing contained in this
Plan or any modification or amendment to the Plan or in the creation of any
Account, or the issuance of any Shares under the Plan, shall give any Director
or Employee any legal or equitable right against any Employer or any officer,
director, shareholder or employee of any Employer, except as expressly provided
by the Plan.
(m) Information. The Company shall, upon request or as may be specifically
required hereunder, furnish or cause to be furnished, all of the information or
documentation which is necessary or required by the Governing Authority and/or
Administrator to perform its duties and functions under the Plan. The Company's
records as to the current information the Company furnishes to the Governing
Authority and/or Administrator shall be conclusive as to all persons.
(n) No Liability for Good Faith Determinations. Neither the members of the
Governing Authority nor the Administrator (nor their respective delegates) shall
be liable for any act, omission, or determination taken or made with respect to
the Plan which is not judicially determined to be due to willful misconduct, and
members of the Governing Authority and the Administrator (and their delegates)
shall be entitled to indemnification and reimbursement by the Company in respect
of any claim, loss, damage, or expense (including attorneys' fees, the costs of
settling any suit, provided such settlement is approved by independent legal
counsel selected by the Company, and amounts paid in satisfaction of a judgment
except a judgment based on a finding of willful misconduct) arising therefrom to
the full extent permitted by law and under any directors and officers liability
or similar insurance coverage that may from time to time be in effect.
(o) Severability. In case any one or more of the provisions contained in
this Plan shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions in this Plan
shall not in any way be affected or impaired.
(p) Captions and Gender. The captions preceding the Sections and
subsections of this Plan have been inserted solely as a matter of convenience
and in no way define or limit the scope or intent of any provisions of this
Plan. Where the context admits or requires, words used in the masculine gender
shall be construed to include the feminine and the neuter also, the plural shall
include the singular, and the singular shall include the plural.
(q) Choice of Law. Except to the extent preempted by ERISA, the Plan and
all rights under this Plan shall be governed by and construed IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS without reference to the conflict of laws
principles.
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IN WITNESS WHEREOF, and as conclusive evidence of the adoption of the
foregoing instrument comprising the Furr's/Bishop's, Inc. Deferred Compensation
Plan, Furr's/Bishop's, Inc. has caused its corporate seal to be affixed hereto
and these presents to be duly executed in its name and behalf by its proper
officers thereunto authorized as of this 8th day of December 1999.
ATTEST: Sue Baker FURR'S/BISHOP'S, INC.
By: /s/ PHILLIP RATNER
By its Assistant Secretary Name: Phillip Ratner
Title: Chief Executive Officer
(CORPORATE SEAL)
STATE OF TEXAS )
) ss.
COUNTY OF COLLIN )
BEFORE ME, the undersigned notary public, on this 8th day of December,
1999, personally appeared Phillip Ratner, known to me to be the identical person
who subscribed the name Phillip Ratner to the foregoing plan as its Chief
Executive Officer, and acknowledged to me that he executed the same as his free
and voluntary act and deed as the free and voluntary act and deed of such
organization for the uses and purposes therein set forth.
GIVEN under my hand and seal of office the day and year last above written.
Notary Public, State of Texas
Commission Expires: 1-5-03 Name Printed: Charlotte M. Sims
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