EXHIBIT 10.6
PREMIUM STANDARD FARMS INC.
SPECIAL EXECUTIVE RETIREMENT PLAN
AMENDED AND RESTATED
AS OF OCTOBER 1, 2004
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS....................................................1
1.01 ACTUARIAL EQUIVALENT.....................................1
1.02 ACTUARIAL VALUE..........................................1
1.03 APPLICABLE PERCENTAGE....................................1
1.04 BENEFICIARY..............................................1
1.05 BOARD....................................................1
1.06 CLAIMANT.................................................1
1.07 CODE.....................................................2
1.08 COMMITTEE................................................2
1.09 COMPANY..................................................2
1.10 EARLY RETIREMENT AGE.....................................2
1.11 EMPLOYER(S)..............................................2
1.12 ERISA....................................................2
1.13 FINAL AVERAGE EARNINGS...................................2
1.14 INTERIM AVERAGE EARNINGS.................................2
1.15 NORMAL RETIREMENT AGE....................................2
1.16 PARTICIPANT..............................................2
1.17 PLAN.....................................................2
1.18 POST-AMENDMENT YEARS OF BENEFIT SERVICE..................2
1.19 PRIMARY BENEFIT..........................................2
1.20 RETIREMENT PLAN OFFSET AMOUNT............................3
1.21 SERP BENEFIT.............................................3
1.22 SOCIAL SECURITY OFFSET AMOUNT............................3
1.23 YEAR OF BENEFIT SERVICE..................................4
1.24 YEARS OF INTERIM BENEFIT SERVICE.........................4
1.25 YEARS OF VESTING SERVICE.................................4
ARTICLE II - ELIGIBILITY...................................................4
2.01 SELECTION BY COMMITTEE...................................4
ARTICLE III - VESTING......................................................4
3.01 VESTING IN BENEFITS......................................4
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ARTICLE IV - BENEFITS......................................................4
4.01 NORMAL RETIREMENT........................................4
4.02 EARLY RETIREMENT.........................................4
4.03 FORM OF BENEFITS.........................................5
4.04 COMMITTEE DISCRETION.....................................5
4.05 WITHHOLDING AND PAYROLL TAXES............................5
4.06 BENEFITS ON DEATH........................................5
4.07 COMMENCEMENT OF BENEFITS.................................6
ARTICLE V - TERMINATION AND AMENDMENT......................................6
5.01 TERMINATION..............................................6
5.02 AMENDMENT................................................6
ARTICLE VI - OTHER BENEFITS AND AGREEMENT..................................6
6.01 COORDINATION WITH OTHER BENEFITS.........................6
ARTICLE VII - ADMINISTRATION OF THE PLAN...................................6
7.01 COMMITTEE DUTIES.........................................6
7.02 AGENTS...................................................6
7.03 BINDING EFFECT OF DECISIONS..............................7
7.04 INDEMNITY OF COMMITTEE...................................7
7.05 EMPLOYER INFORMATION.....................................7
ARTICLE VIII - CLAIMS PROCEDURES...........................................7
8.01 PRESENTATION OF CLAIM....................................7
8.02 NOTIFICATION OF DECISION.................................7
8.03 REVIEW OF A DENIED CLAIM.................................8
8.04 DECISION ON REVIEW.......................................8
8.05 LEGAL ACTION.............................................8
ARTICLE IX - MISCELLANEOUS.................................................8
9.01 UNSECURED GENERAL CREDITOR...............................8
9.02 EMPLOYER'S LIABILITY.....................................8
9.03 NONASSIGNABILITY.........................................8
9.04 NOT A CONTRACT OF EMPLOYMENT.............................9
9.05 FURNISHING INFORMATION...................................9
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9.06 TERMS....................................................9
9.07 CAPTIONS.................................................9
9.08 GOVERNING LAW............................................9
9.09 VALIDITY.................................................9
9.10 NOTICE...................................................9
9.11 SUCCESSORS..............................................10
9.12 SPOUSE'S INTEREST.......................................10
9.13 INCOMPETENT.............................................10
9.14 COURT ORDER.............................................10
9.15 DISTRIBUTION IN THE EVENT OF TAXATION...................10
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PREMIUM STANDARD FARMS INC.
SPECIAL EXECUTIVE RETIREMENT PLAN
AMENDED AND RESTATED
AS OF OCTOBER 1, 2004
PURPOSE
Effective as of October 1, 2004, this document shall constitute an
Amendment and Restatement of the Premium Standard Farms Inc. Special Executive
Retirement Plan, which Plan was originally established as of January 1, 2000.
The purpose of the Plan is to provide specified benefits to a select group of
management and highly compensated employees of Premium Standard Farms Inc., a
Delaware corporation, and its subsidiaries, if any, that sponsor this Plan. The
Plan has been and continues to be unfunded for tax purposes and for purposes of
Title I of ERISA.
ARTICLE I - DEFINITIONS
1.01 "Actuarial Equivalent" shall mean a benefit of equivalent value,
as calculated by an actuary selected by the Company, computed on the basis of
the following actuarial assumptions:
Interest: the annual interest rate on 30-year Treasury securities as
specified by the Secretary of the Treasury or his delegate for the
month preceding the month in which the Participant's distribution
commences.
Mortality: the 1983 Group Annuity Mortality Table using a blend of 50%
of the male table and 50% of the female table.
1.02 "Actuarial Value" shall mean the lump sum cash value, as
calculated by an actuary selected by the Company, computed on the basis of the
following actuarial assumptions:
Interest: the annual interest rate on 30-year Treasury securities as
specified by the Secretary of the Treasury or his delegate for the
month preceding the month in which the Participant's distribution
commences.
Mortality: the 1983 Group Annuity Mortality Table using a blend of 50%
of the male table and 50% of the female table.
1.03 "Applicable Percentage" shall mean the applicable percentage set
forth with respect to each Participant on the attached Exhibit B.
1.04 "Beneficiary" shall mean the surviving spouse of a deceased
Participant.
1.05 "Board" shall mean the board of directors of the Company.
1.06 "Claimant" shall have the meaning set forth in Section 8.1.01.
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1.07 "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
1.08 "Committee" shall mean the Compensation Committee of the Board.
1.09 "Company" shall mean Premium Standard Farms Inc., a Delaware
corporation.
1.10 "Early Retirement Age" shall mean age 55 with five Years of
Vesting Service.
1.11 "Employer(s)" shall mean the Company and any subsidiary or
subsidiaries of the Company that have been selected by the Board to participate
in the Plan.
1.12 "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
1.13 "Final Average Earnings" shall mean the average of the
Participant's final three full calendar years' base salary, including any
amounts deferred to a qualified or nonqualified retirement plan or contributed
by the Participant to a cafeteria plan.
1.14 "Interim Average Earnings" shall mean the average of the
Participant's full calendar years' base salary, including any amounts deferred
to a qualified or nonqualified retirement plan or contributed by the Participant
to a cafeteria plan, for calendar years 2001, 2002 and 2003. In the event a
Participant was not employed by the Company during all of 2001, 2002 and 2003,
then "Interim Average Earnings" shall mean the average of the Participant's full
calendar years' base salary, including any amounts deferred to a qualified or
nonqualified retirement plan or contributed by the Participant to a cafeteria
plan, for those full calendar years during such period that the Participant was
employed by the Company.
1.15 "Normal Retirement Age" shall mean age 62.
1.16 "Participant" shall mean any employee who is selected to
participate in the Plan by the Board and listed on Exhibit A as amended hereto
from time to time. The Board shall have the sole and exclusive authority to
select and delete Participants and to determine each Participant's Primary
Benefit.
1.17 "Plan" shall mean this Special Executive Retirement Plan.
1.18 "Post-Amendment Years of Benefit Service" shall mean (a) each full
Year of Benefit Service which commences after October 1, 2004, plus (b) the pro
rata portion of any Year of Benefit Service which includes October 1, 2004. For
purposes of the foregoing, the pro rata portion of any Year of Benefit Service
which includes October 1, 2004 shall be determined by multiplying one (1) by a
fraction, the numerator of which shall be the number of days in such Year of
Benefit Service which occur after September 30, 2004, and the denominator of
which shall be 365.
1.19 "Primary Benefit" shall mean a monthly benefit equal to the sum of
the following:
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(A) 1/12 [(The Applicable Percentage x Interim Average
Earnings) x Years of Interim Benefit Service]; plus
(B) 1/12 [(1.5% x Final Average Earnings) x
Post-Amendment Years of Benefit Service]
Notwithstanding the foregoing, the Maximum Primary Benefit with respect to any
Participant shall be a monthly benefit equal to 1/12 of 66.7% of Final Average
Earnings.
1.20 "Retirement Plan Offset Amount" shall mean the monthly benefit
paid or payable to or on behalf of a Participant because of such Participant's
service with an Employer pursuant to any qualified defined benefit pension plan
maintained by the Company, by ContiGroup Companies, Inc. or by any of their
Affiliates. In the event any benefit payable to or on behalf of a Participant
from any such defined benefit plan shall be payable in a form other than a
straight life annuity, payable monthly, then the amount of the Retirement Plan
Offset Amount shall be the Actuarial Equivalent of such benefit, determined on
the basis of a straight life annuity payable monthly.
1.21 "SERP Benefit" shall mean the benefit payable to a Participant
determined under Section 4.01.
1.22 "Social Security Offset Amount" shall mean one-half (1/2) of a
Participant's anticipated monthly social security benefit payable beginning at
the earliest age permitted (currently 62), multiplied by a fraction, the
numerator of which shall be the Participant's Years of Benefit Service and the
denominator of which is the Participant's years of service for purposes of
calculating his social security benefit, subject to the following rules:
(i) If a Participant elects to commence benefits under this
Plan prior to age 62, his Social Security Offset Amount shall be
reduced by 0.5% for each month by which the date on which he commences
benefits precedes the date on which he attains Normal Retirement Age.
(ii) If a Participant elects to commence benefits under this
Plan at any age in a lump sum, his Social Security Offset Amount shall
be one-half (1/2) the Actuarial Value of his expected social security
benefits, including any benefits previously paid, assuming that his
benefits commenced at the earliest age permitted (currently, age 62)
and were not thereafter adjusted for cost of living adjustments.
(iii) If a Participant elects to commence benefits under this
Plan in an annuity form at or following the time he has commenced
receipt of social security benefits, his Social Security Offset Amount
shall be one-half (1/2) of the actual monthly benefit received at that
time multiplied by a fraction, the numerator of which shall be the
Participant's Years of Benefit Service and the denominator of which
shall be the Participant's years of service for purposes of calculating
his social security benefits, and shall not be adjusted thereafter for
cost of living adjustments or the subsequent death of the Participant.
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(iv) If a surviving spouse is entitled to a benefit pursuant
to Section 4.06, the Social Security Offset Amount shall be computed as
though the Participant was still living at age 62.
1.23 "Year of Benefit Service" shall mean each period of twelve (12)
consecutive months, beginning on the Participant's date of hire and each
anniversary thereof, that the Participant is employed by the Company.
1.24 "Years of Interim Benefit Service" shall mean (a) each full Year
of Benefit Service completed with the Company prior to October 1, 2004, plus (b)
the pro rata portion of any Year of Benefit Service which includes October 1,
2004. For purposes of the foregoing, the pro rata portion of any Year of Benefit
Service which includes October 1, 2004 shall be determined by multiplying one
(1) by a fraction, the numerator of which shall be the number of days in such
Year of Benefit Service which occur prior to October 1, 2004 and the denominator
of which shall be 365.
1.25 "Years of Vesting Service" shall mean full calendar years of
employment with the Company, excluding for this purpose years of employment
prior to January 1, 2000.
ARTICLE II - ELIGIBILITY
2.01 SELECTION BY COMMITTEE. Participation in the Plan shall be limited
to a select group of management and highly compensated employees of the
Employers. From that group, the Committee shall select, in its sole discretion,
employees to participate in the Plan.
ARTICLE III - VESTING
3.01 VESTING IN BENEFITS. Each Participant shall become vested in his
or her SERP Benefit in accordance with the following schedule:
YEARS OF VESTING SERVICE VESTED PERCENTAGE
------------------------ -----------------
Less than 5 0
5 or more 100%
ARTICLE IV - BENEFITS
4.01 NORMAL RETIREMENT. A Participant who has completed five (5) Years
of Vesting Service and who has terminated employment with the Company shall be
entitled to receive a SERP Benefit at Normal Retirement Age. The SERP Benefit
payable to a Participant at Normal Retirement Age shall be an annuity for the
life of the Participant equal to his Primary Benefit minus the sum of (i) his
Retirement Plan Offset Amount and (ii) his Social Security Offset Amount.
4.02 EARLY RETIREMENT. A Participant who attains Early Retirement Age
and who has terminated employment shall be entitled to retire and receive a
reduced SERP Benefit equal to
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his SERP Benefit reduced by one-half percent (.5%) for each month by which the
date on which he commences benefits precedes the date on which he attains his
Normal Retirement Age.
4.03 FORM OF BENEFITS. Payments of vested SERP Benefits shall be made
in the form and at the time elected by the Participant. The Participant shall
make an election as to the form and timing of payments on forms and in
accordance with procedures announced from time to time by the Committee. The
forms of benefit available under the Plan shall be:
(i) lump sum, in an amount equal to the Actuarial Value of the
SERP Benefit;
(ii) joint and 50% survivor annuity, which shall be a monthly
income payable for the lifetime of the Participant and continuing
thereafter in an amount one-half as large to the Participant's
surviving spouse for the lifetime of such spouse and shall be the
Actuarial Equivalent of the SERP Benefit;
(iii) joint and 100% survivor annuity, which shall be a
monthly income payable for the lifetime of the Participant and
continuing thereafter in an equal amount to the Participant's surviving
spouse for the lifetime of such spouse and shall be the Actuarial
Equivalent of the SERP Benefit; and
(iv) an annuity for the life of the Participant only.
If the Participant has elected a joint and survivor annuity and has no
spouse at the time benefits become payable, the election shall be void
and the benefits shall be paid as an annuity for the life of the
Participant only. If the Participant subsequently becomes married, and
the Participant's spouse dies after benefits have become payable, no
survivor annuity shall be paid to such spouse.
4.04 COMMITTEE DISCRETION. The Committee, in its sole discretion and
consistent with its established procedures and rules, may consider other forms
of vested SERP Benefit payments, or the timing of vested SERP Benefit payments,
as it deems necessary and prudent under the circumstances.
4.05 WITHHOLDING AND PAYROLL TAXES. The Employer, to the extent
required by applicable law, shall withhold from any and all benefits paid under
this Article IV, all federal, state and local income, employment and other taxes
required to be withheld by the Employer in connection with the benefits
hereunder, in amounts to be determined in the sole discretion of the Employer.
4.06 BENEFITS ON DEATH. If a Participant is vested and dies prior to
commencing benefits under this Plan and is married on the date of his death, a
spousal death benefit shall be payable under this Plan. The spousal death
benefit under this Plan shall be equal to an annuity based on 50% of the
Participant's SERP Benefit, commencing immediately but no earlier than the date
that the Participant would have attained age 55, and reduced by one-half of one
percent (.5%) for each month by which the date benefits commence precedes the
date that the Participant would have attained age 62. Any spousal death benefits
payable under this Plan shall be paid in the form of an annuity for the spouse's
life. If a Participant has no surviving spouse, the benefits remaining under the
Plan shall be forfeited.
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4.07 COMMENCEMENT OF BENEFITS. Payment of a benefit to a Participant
may not begin earlier than the later of:
(i) the Participant's Early Retirement Age, or
(ii) the Participant's termination of employment.
ARTICLE V - TERMINATION AND AMENDMENT
5.01 TERMINATION. The Company reserves the right to terminate the Plan
at any time by the action of the Board. The termination of the Plan shall not
adversely affect any Participant or his or her Beneficiary who has become
entitled to the payment of any benefits under the Plan as of the date of
termination; provided, however, that the Employer shall have the right to
accelerate payments by paying the Actuarial Value of such payments. For all
other Participants, upon the termination of the Plan, the Employer shall have
the right to pay the Actuarial Value of a Participant's vested SERP Benefit in a
lump sum.
5.02 AMENDMENT. The Company may, at any time, amend or modify the Plan
in whole or in part by the action of its Board; provided, however, that no
amendment or modification shall be effective to decrease or restrict a
Participant's then vested SERP Benefit. The amendment or modification of the
Plan shall not affect any Participant or his or her Beneficiary who has become
entitled to the payment of benefits under the Plan as of the date of the
amendment or modification; provided, however, that the Employer shall have the
right to accelerate installment payments by paying the Actuarial Value of such
payments in a lump sum or the Actuarial Equivalent in some other accelerated
form of payment.
ARTICLE VI - OTHER BENEFITS AND AGREEMENT
6.01 COORDINATION WITH OTHER BENEFITS. Except as provided herein and
except as otherwise expressly provided under any other plan or program for
employees of the Employers, the benefits provided under this Plan to a
Participant are in addition to the benefits available to such Participant under
any other such plan or program. The Plan shall supplement and shall not
supersede, modify or amend any other such plan or program except as may
otherwise be expressly provided.
ARTICLE VII - ADMINISTRATION OF THE PLAN
7.01 COMMITTEE DUTIES. This Plan shall be administered by the
Committee, or such committee or individual as the Board shall appoint. Members
of the Committee may be Participants under this Plan. The Committee shall also
have the discretion and authority to (i) make, amend, interpret and enforce all
appropriate rules and regulations for the administration of this Plan and (ii)
decide or resolve any and all questions including interpretations of this Plan,
as may arise in connection with the Plan.
7.02 AGENTS. In the administration of this Plan, the Committee may
employ agents and delegate to them such administrative duties as it sees fit
(including acting through a duly appointed representative) and may from time to
time consult with counsel who may be counsel to any Employer.
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7.03 BINDING EFFECT OF DECISIONS. The decision or action of the
Committee with respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules and
regulations promulgated hereunder shall be final and conclusive and binding upon
all persons having any interest in the Plan.
7.04 INDEMNITY OF COMMITTEE. All Employers shall indemnify and hold
harmless the members of the Committee against any and all claims, losses,
damages, expenses or liabilities arising from any action or failure to act with
respect to this Plan, except in the case of willful misconduct by the Committee
or any of its members.
7.05 EMPLOYER INFORMATION. To enable the Committee to perform its
functions, each Employer shall supply full and timely information to the
Committee on all matters relating to the compensation of its Participants, the
date and circumstances of the retirement, disability, death or termination of
employment of its Participants, and such other pertinent information as the
Committee may reasonably require.
ARTICLE VIII - CLAIMS PROCEDURES
8.01 PRESENTATION OF CLAIM. Any Participant or Beneficiary (such
Participant or Beneficiary being referred to below as a "Claimant") may deliver
to the Committee a written claim for a determination with respect to the amounts
distributable to such Claimant from the Plan. If such a claim relates to the
contents of a notice received by the Claimant, the claim must be made within 60
days after such notice was received by the Claimant. The claim must state with
particularity the determination desired by the Claimant. All other claims must
be made within 180 days of the date on which the event that caused the claim to
arise occurred. The claim must state with particularity the determination
desired by the Claimant.
8.02 NOTIFICATION OF DECISION. The Committee shall consider a
Claimant's claim within 90 days (unless special circumstances require additional
time), and shall notify the Claimant in writing:
(i) that the Claimant's requested determination has been made,
and that the claim has been allowed in full; or
(ii) that the Committee has reached a conclusion contrary, in
whole or in part, to the Claimant's requested determination, and such
notice must set forth in a manner calculated to be understood by the
Claimant;
(1) the specific reason(s) for the denial of the
claim, or any part of it;
(2) specific reference(s) to pertinent provisions of
the Plan upon which such denial was based;
(3) a description of any additional material or
information necessary for the Claimant to perfect the claim,
and an explanation of why such material or information is
necessary; and
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(4) an explanation of the claim review procedure set
forth in Section 8.03 below.
8.03 REVIEW OF A DENIED CLAIM. Within 60 days after receiving a notice
from the Committee that a claim has been denied, in whole or in part, a Claimant
(or the Claimant's duly authorized representative) may file with the Committee a
written request for a review of the denial of the claim. Thereafter, but not
later than 30 days after the review procedure began, the Claimant (or the
Claimant's duly authorized representative):
(i) may review pertinent documents;
(ii) may submit written comments or other documents; and/or
(iii) may request a hearing, which the Committee, in its sole
discretion, may grant.
8.04 DECISION ON REVIEW. The Committee shall render its decision on
review promptly, and not later than 60 days after the filing of a written
request for review of the denial, unless a hearing is held or other special
circumstances require additional time, in which case the Committee's decision
must be rendered within 120 days after such date. Such decision must be written
in a manner calculated to be understood by the Claimant, and it must contain:
(i) specific reasons for the decision;
(ii) specific reference(s) to the pertinent Plan provisions
upon which the decision was based; and
(iii) such other matters as the Committee deems relevant.
8.05 LEGAL ACTION. A Claimant's compliance with the foregoing
provisions of this Article VIII is a mandatory prerequisite to a Claimant's
right to commence any legal action with respect to any claim for benefits under
this Plan.
ARTICLE IX - MISCELLANEOUS
9.01 UNSECURED GENERAL CREDITOR. Participants and their Beneficiaries,
successors and assigns shall have no legal or equitable rights, interests or
claims in any property or assets of an Employer. Any and all of an Employer's
assets shall be, and remain, the general, unpledged, unrestricted assets of the
Employer. An Employer's obligation under the Plan shall be merely that of an
unfunded and unsecured promise to pay money in the future.
9.02 EMPLOYER'S LIABILITY. An Employer's liability for the payment of
benefits shall be defined only by the Plan. An Employer shall have no obligation
to a Participant under the Plan except as expressly provided in the Plan.
9.03 NONASSIGNABILITY. Neither a Participant nor any other person shall
have any right to commute, sell, assign, transfer, pledge, anticipate, mortgage
or otherwise encumber, transfer, hypothecate or convey in advance of actual
receipt, the amounts, if any, payable hereunder, or
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any part thereof, which are, and all rights to which are, expressly declared to
be, unassignable and non-transferable. No part of the amounts payable shall,
prior to actual payment, be subject to seizure or sequestration for the payment
of any debts, judgments, alimony or separate maintenance owned by a Participant
or any other person, nor be transferable by operation of law in the event of a
Participant's or any other person's bankruptcy or insolvency.
9.04 NOT A CONTRACT OF EMPLOYMENT. The terms and conditions of this
Plan shall not be deemed to constitute a contract of employment between any
Employer and the Participant. Such employment is hereby acknowledged to be an
"at will" employment relationship that can be terminated at any time for any
reason, with or without cause, unless expressly provided in a written employment
agreement. Nothing in this Plan shall be deemed to give a Participant the right
to be retained in the service of any Employer or to interfere with the right of
any Employer to discipline or discharge the Participant at any time.
9.05 FURNISHING INFORMATION. A Participant or his or her Beneficiary
will cooperate with the Committee by furnishing any and all information
requested by the Committee and take such other actions as may be requested in
order to facilitate the administration of the Plan and the payments of benefits
hereunder, including but not limited to taking such physical examinations as the
Committee may deem necessary.
9.06 TERMS. Whenever any words are used herein in the masculine, they
shall be construed as though they were in the feminine in all cases where they
would so apply; and wherever any words are used herein in the singular or in the
plural, they shall be construed as though they were used in the plural or the
singular, as the case may be, in all cases where they would so apply.
9.07 CAPTIONS. The captions of the articles, sections and paragraphs of
this Plan are for convenience only and shall not control or affect the meaning
or construction of any of its provisions.
9.08 GOVERNING LAW. Subject to any applicable provisions of ERISA, the
provisions of this Plan shall be construed and interpreted according to the
internal laws of the State of Missouri without regard to its conflict of laws
principles.
9.09 VALIDITY. In case any provision of this Plan shall be illegal or
invalid for any reason, said illegality or invalidity shall not affect the
remaining parts thereof, but this Plan shall be construed and enforced as if
such illegal and invalid provision had never been inserted herein.
9.10 NOTICE. Any notice or filing required or permitted to be given to
the Committee under this Plan shall be sufficient if in writing and
hand-delivered, or sent by registered or certified mail, to the address below:
Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the
receipt for registration or certification.
Any notice or filing required or permitted to be given to a Participant
under this Plan shall be sufficient if in writing and hand-delivered,
or sent by mail, to the last known address of the Participant.
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9.11 SUCCESSORS. The provisions of this Plan shall bind and inure to
the benefit of the Participant's Employer and its successors and assigns and the
Participant and the Participant's Beneficiary.
9.12 SPOUSE'S INTEREST. The interest in the benefits hereunder of a
spouse of a Participant who has predeceased the Participant shall automatically
pass to the Participant and shall not be transferable by such spouse in any
manner, including but not limited to such spouse's will, nor shall such interest
pass under the laws of intestate succession.
9.13 INCOMPETENT. If the Committee determines in its discretion that a
benefit under this Plan is to be paid to a minor, a person declared incompetent
or to a person incapable of handling the disposition of that person's property,
the Committee may direct payment of such benefit to the guardian, legal
representative or person having the care and custody of such minor, incompetent
or incapable person. The Committee may require proof of minority, incompetency,
incapacity or guardianship, as it may deem appropriate prior to distribution of
the benefit. Any payment of a benefit shall be a payment for the account of the
Participant and the Participant's Beneficiary, as the case may be, and shall be
a complete discharge of any liability under the Plan for such payment amount.
9.14 COURT ORDER. The Committee is authorized to make any payments
directed by court order in any action in which the Plan or Committee has been
named as a party.
9.15 DISTRIBUTION IN THE EVENT OF TAXATION. If, for any reason, all or
any portion of a Participant's benefit under this Plan becomes taxable to the
Participant prior to receipt, a Participant may petition the Committee for a
distribution of that portion of his or her benefit that has become taxable. Upon
the approval of such a petition, a Participant's Employer shall distribute to
the Participant immediately available funds in an amount equal to the taxable
portion of his or her benefit (which amount shall not exceed a Participant's
unpaid vested benefit under the Plan). If the petition is approved, the tax
liability distribution shall be made within 90 days of the date when the
Participant's petition is approved. Such a distribution shall affect and reduce
the benefits to be paid under this Plan.
IN WITNESS WHEREOF, Premium Standard Farms Inc. has signed this Amended
and Restated Plan document as of October 1, 2004.
"COMPANY"
PREMIUM STANDARD FARMS INC.
By: /s/ John M. Meyer
------------------------------------
Title: CEO
---------------------------------
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EXHIBIT A
PREMIUM STANDARD FARMS, INC.
SPECIAL EXECUTIVE RETIREMENT PLAN
PARTICIPANT LIST
John Meyer
Robert Manly
Stephen Lightstone
Dennis Rippe
Daniel Harris
Calvin Held
David Townsend
Collette Schultz-Kaster
Donald Killingsworth
Jeff Gough
Richard Morris
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EXHIBIT B
PSF SPECIAL EXECUTIVE
RETIREMENT PLAN (SERP)
LIST OF APPLICABLE PERCENTAGES
APPLICABLE
PARTICIPANT OFFICER'S TITLE PSF HIRE DATE PERCENTAGE
----------- --------------- ------------- ----------
John Meyer Chief Executive Officer 5/1/98 4%
Robert Manly President 10/16/96 4%
Stephen Lightstone Executive VP, Chief Financial Officer, 8/3/98 4%
Treasurer
Dennis Rippe VP, Controller, Corp Asst. Secty. 4/11/94 2%
Daniel Harris VP and Chief Information Officer 4/12/99 2%
Calvin Held VP Milan Plant Processing Operations 8/1/92 2%
David Townsend VP Environmental Affairs 5/1/98 2%
Collette Schultz-Kaster VP Food Safety and Technical Services 10/24/94 2%
Donald Killingsworth VP Industrial Procurement 4/1/01 2%
Jeffrey Gough VP Human Resources 10/1/01 2%
Richard Morris VP Sales & Marketing 11/10/03 2%
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