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EXHIBIT 10.5
FLOWERS FOODS, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
(Effective as of August 12, 2001)
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TABLE OF CONTENTS
PAGE
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SECTION 1 PURPOSE................................................................1
SECTION 2 DEFINITIONS............................................................1
2.1. Account....................................................................1
2.2. Beneficiary................................................................1
2.3. Board of Directors.........................................................1
2.4. Change in Control..........................................................1
2.5. Compensation...............................................................4
2.6. Compensation Committee.....................................................4
2.7. Compensation Limit.........................................................4
2.8. Director...................................................................5
2.9. EDCP.......................................................................5
2.10. EDCP Credit Rate...........................................................5
2.11. Eligible Executive.........................................................5
2.12. Executive Committee........................................................5
2.13. Fiscal Quarter.............................................................5
2.14. Fiscal Year................................................................5
2.15. Flowers....................................................................5
SECTION 3 TERM...................................................................6
3.1. Starting Date..............................................................6
3.2. Ending Date................................................................6
SECTION 4 DEFERRAL ELECTION RULES AND PROCEDURES.................................6
4.1. Cash Compensation Only.....................................................6
4.2. Classification and Percentage Limitations..................................7
4.3. Irrevocable Election and Filing Deadlines..................................9
SECTION 5 SUPPLEMENTAL ALLOCATIONS FOR CERTAIN ELIGIBLE EXECUTIVES..............10
SECTION 6 ACCOUNTS..............................................................11
SECTION 7 INTEREST CREDIT.......................................................12
SECTION 8 DISTRIBUTIONS.........................................................12
8.1. Distribution Events.......................................................12
8.2. Methods...................................................................13
8.3. Interest Credits..........................................................14
8.4. Automatic Lump-Sum........................................................14
8.5. Special Circumstances.....................................................14
8.6. Source of Distributions...................................................15
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TABLE OF CONTENTS
(continued)
PAGE
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SECTION 9 MISCELLANEOUS.........................................................15
9.1. Beneficiary...............................................................15
9.2. No Assignment; Binding Effect.............................................15
9.3. ERISA.....................................................................16
9.4. Compensation Committee Powers.............................................16
9.5. Construction..............................................................16
9.6. Term of Office............................................................17
9.7. Employment Contract.......................................................17
9.8. Amendment and Termination.................................................17
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FLOWERS FOODS, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
(Effective as of August 12, 2001)
SECTION 1
PURPOSE
The purpose of this EDCP is to (a) allow each Director of Flowers and
each Eligible Executive of Flowers and its wholly-owned subsidiaries to defer
the payment of a percentage of his cash compensation, otherwise payable for
services rendered, each Fiscal Year until he no longer serves as Director or his
employment as an Eligible Executive terminates and (b) permit Flowers to make
certain supplemental allocations to the Accounts of certain Eligible Executives.
SECTION 2
DEFINITIONS
Each term set forth in this Section 2 shall have the meaning set forth
opposite such term for purposes of this EDCP.
2.1. Account -- means the bookkeeping account maintained as part of
Flowers' books and records in accordance with Section 4 to show as of any date
the interest of each Director and Eligible Executive in this EDCP.
2.2. Beneficiary -- means the person or persons designated as such
in accordance with Section 9.1.
2.3. Board of Directors -- means the Board of Directors of Flowers.
2.4. Change in Control -- means the occurrence of any one or more
of the following events, subject to the provisions of subsection (f) hereof:
(a) Flowers merges into itself, or is merged or consolidated with
another entity, and as a result of such merger or
consolidation, less than 51% of the voting power of
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the then-outstanding voting securities of the surviving or
resulting entity immediately after such transaction are
directly or indirectly beneficially owned in the aggregate by
the former shareholders of Flowers immediately prior to such
transaction;
(b) all or substantially all the assets accounted for on the
consolidated balance sheet of Flowers are sold or transferred
to one or more entities or persons, and as a result of such
sale or transfer, less than 51% of the voting power of the
then-outstanding voting securities of such entity or person
immediately after such sale or transfer is directly or
indirectly beneficially held in the aggregate by the former
shareholders of Flowers immediately prior to such transaction
or series of transactions;
(c) a person, within the meaning of Sections 3(a)(9) or 13(d)(3)
(as in effect on the effective date of this EDCP) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), becomes the beneficial owner (as defined in Rule 13d-3
of the Securities and Exchange Commission pursuant to the
Exchange Act) of (1) 15% or more, but less than 35%, of the
voting power of the then-outstanding voting securities of
Flowers without prior approval of the Board of Directors, or
(2) 35% or more of the voting power of the then-outstanding
voting securities of Flowers; provided, however, that the
foregoing does not apply to any such acquisition that is made
by (i) any subsidiary; (ii) any employee benefit plan of
Flowers or any subsidiary; or (iii) any person or group of
which employees of Flowers or of any subsidiary control a
greater than 25% interest, unless the
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Compensation Committee determines that such person or group is
making a "hostile acquisition"; or (iv) any person or group of
which Flowers is an affiliate;
(d) a majority of the members of the Board of Directors are not
Continuing Directors, where a "Continuing Director" is any
member of the Board of Directors who (1) was a member of the
Board of Directors on the effective date of this EDCP or (2)
was nominated for election or elected to the Board of
Directors with the affirmative vote of a majority of the
Continuing Directors who were members of the Board of
Directors at the time of such nomination or election; or
(e) the Board of Directors determines that (1) any particular
actual or proposed merger, consolidation, reorganization, sale
or transfer of assets, accumulation of shares of Flowers or
other transaction or event or series of transactions or events
will, or is likely to, if carried out, result in a Change in
Control falling within subsections (a), (b), (c) or (d) of
this Section 2.4 and (2) it is in the best interests of
Flowers and its shareholders, and will serve the intended
purposes of this Section 2.4, if such actual or proposed
transaction constitutes a Change in Control.
(f) Notwithstanding the foregoing provisions of this Section 2.4:
(1) if any such merger, consolidation, reorganization,
sale or transfer of assets, or tender offer or other
transaction or event or series of transactions or
events mentioned in subsection (e) of this Section
2.4 shall be abandoned, or any such accumulations of
shares shall be dispersed or otherwise resolved, the
Board of Directors may, by notice to the affected
parties,
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nullify the effect thereof, but without prejudice to
any action that may have been taken prior to such
nullification; and
(2) unless otherwise determined in a specific case by the
Board of Directors, a "Change in Control" shall not
be deemed to have occurred for purposes of subsection
(c) of this Section 2.4 solely because (i) Flowers,
(ii) a subsidiary or (iii) any Flowers-sponsored
employee stock ownership plan or any other employee
benefit plan of Flowers or any subsidiary either
files or becomes obligated to file a report or a
proxy statement under or in response to Schedule 13D,
Schedule 14D-1, Form 8-K or Schedule 14A (or any
successor schedule, form or report or item therein)
under the Exchange Act disclosing beneficial
ownership by it of shares of the then-outstanding
voting securities of Flowers, whether in excess of
20% or otherwise, or because Flowers reports that a
change in control of Flowers has occurred or will
occur in the future by reason of such beneficial
ownership.
2.5. Compensation -- means cash compensation paid to a Director or
Eligible Executive by Flowers or a wholly-owned subsidiary, plus any amounts
deferred pursuant to Section 4.1.
2.6. Compensation Committee -- means the Compensation Committee of
the Board of Directors.
2.7. Compensation Limit -- means the annual Compensation amount
which when multiplied by six percent (6%) equals the maximum dollar amount
contributions which may be made by Highly Compensated Employees to the Flowers
Foods, Inc. 401(k) Plan which will be
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matched by Company contributions, as determined by said Plans Administrative
Committee for the fiscal year in question.
2.8. Director -- means a member of the Board of Directors who is
treated as such under Section 3.
2.9. EDCP -- means this Flowers Foods, Inc. Executive Deferred
Compensation Plan, effective as of August 12, 2001, and as thereafter amended
from time to time.
2.10. EDCP Credit Rate -- means, for each Fiscal Quarter, Flowers'
borrowing rate under its senior bank credit facility (or its equivalent), as
determined by the Compensation Committee acting in its absolute discretion, on
the first business day in each such quarter, which rate shall be expressed as a
daily interest rate.
2.11. Eligible Executive -- means an executive employee of Flowers
or a wholly-owned subsidiary who has been designated by the Compensation
Committee as being eligible to participate in this EDCP.
2.12. Executive Committee -- means the Executive Committee of the
Board of Directors.
2.13. Fiscal Quarter -- means the fiscal quarter that coincides with
the appropriate fiscal quarter in Flowers' fiscal year.
2.14. Fiscal Year -- means the fiscal year that coincides with
Flowers' fiscal year.
2.15. Flowers -- means Flowers Foods, Inc. and any successor to such
corporation that adopts this EDCP in writing.
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SECTION 3
TERM
3.1. Starting Date. A Director shall be treated as such under this
EDCP as of the later of August 12, 2001 or the date his election to the Board of
Directors first becomes effective. An Eligible Executive shall be treated as
such under this EDCP as of the later of August 12, 2001 or the date he is so
designated by the Compensation Committee.
3.2. Ending Date. A Director shall cease to be treated as such
under this EDCP on the date that he (for any reason whatsoever) no longer serves
as a member of the Board of Directors, and any deferral election made under
Section 4 by that Director shall become ineffective on such date as to any
Compensation otherwise actually payable on or after such date. An Eligible
Executive shall cease to be treated as such under this EDCP as of the earlier of
(1) the date his employment by Flowers and all of its subsidiaries terminates
for any reason whatsoever other than a mere transfer between or among such
entities or (2) the date the Compensation Committee revokes his designation as
an Eligible Executive, and any deferral election made under Section 4 by him
automatically shall become ineffective on such date as to any Compensation
otherwise actually payable on or after such date.
SECTION 4
DEFERRAL ELECTION RULES AND PROCEDURES
4.1. Cash Compensation Only. Subject to Section 4.2, each Director
and Eligible Executive may elect to defer the payment of a percentage of his
cash Compensation otherwise payable for services rendered as such for each
Fiscal Year beginning on and after August 12, 2001, except as provided in
subsection (b) of Section 4.3. No election shall be effective as to Compensation
paid in a form other than in cash, and an election shall (except as provided in
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Section 3.2) be effective for cash Compensation otherwise payable for services
rendered for the period covered by such election under Section 4.3 even if such
Compensation otherwise actually is payable after the end of such period.
4.2. Classification and Percentage Limitations.
(a) General Rules.
(1) An election to defer the payment of a percentage of a
Director's or Eligible Executive's cash Compensation
otherwise payable for services rendered as such for a
Fiscal Year shall not be effective to the extent that
such election exceeds the limits set forth in this
Section 4.2. Different percentages of different forms
of Compensation may be deferred, as indicated on the
Director's or Eligible Executive's election form.
(2) Compensation shall be deemed "otherwise actually
payable" under this EDCP on the date such
compensation otherwise would have been paid under the
standard compensation and payroll practices of
Flowers and its subsidiaries, and a deferral shall be
credited as of that date under Section 6.
(b) Base Salary. If an election applies to base salary, such
election shall apply to no more than seventy-five percent
(75%) of an Eligible Executive's base salary otherwise
actually payable for the period covered by such election under
Section 4.3.
(c) Director's Fees. If an election applies to director's fees,
such election shall apply separately to his monthly fees and
his meeting fees.
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(d) Bonuses. If an election applies to bonuses, such election
shall apply to up to one hundred percent (100%) of any cash
bonus (the annual incentive plan and/or any other cash
bonuses, as designated on the election form) otherwise
actually payable for the period covered by such election under
Section 4.3. If such period is less than the full period over
which the total bonus is determined (as in the case of a
mid-year designation by the Compensation Committee of an
Eligible Executive), the cash portion of the bonus otherwise
actually payable for such period shall equal the total cash
bonus for the full period over which the total bonus is
determined multiplied by a fraction, the numerator of which
shall equal the number of full Fiscal Quarters in the period
covered by such election under Section 4.3 and the denominator
of which shall equal the number of full Fiscal Quarters in the
full period over which the total bonus is determined.
(e) Retainer Fees. If an election applies to director's retainer
fees, such election shall apply to up to one hundred percent
(100%) of those director's retainer fees that the Director has
not elected to convert into equity-based compensation which
are otherwise actually payable for the period covered by such
election under Section 4.3.
(f) Other Compensation. If an election applies to Compensation not
otherwise described in this Section 4.2, such election shall
apply to up to one hundred percent (100%) of any cash
otherwise actually payable by Flowers or its subsidiaries for
the period covered by such election under Section 4.3.
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4.3. Irrevocable Election and Filing Deadlines.
(a) General Rule. An election to defer the payment of a percentage
of a Director's or Eligible Executive's cash Compensation
otherwise actually payable for services rendered shall be made
on the form provided for this purpose by the Compensation
Committee. Such election shall be effective for the Fiscal
Year (or, in the event an election is a continuing election,
the Fiscal Years) which begins after the date the Director or
Eligible Executive files the election form with Flowers for
his cash Compensation otherwise payable for services rendered
as a Director or Eligible Executive on and after the date such
election becomes effective.
(b) Special Rule. If a Director or Eligible Executive first is
designated as such on a date other than the first day of a
Fiscal Year, he can elect to defer the payment of a percentage
of his cash Compensation otherwise payable for services
rendered as such for the Fiscal Quarter or Quarters remaining
in such Fiscal Year if he makes such election on the form
provided for this purpose by the Compensation Committee and
files such election form with the Compensation Committee on or
before the first day of the first full Fiscal Quarter during
which he will be treated as a Director or Eligible Executive
under Section 3.
(c) Irrevocable Election. After an election becomes effective for
a Fiscal Year under subsection (a) of this Section 4.3 or for
the remainder of a Fiscal Year under subsection (b) of this
Section 4.3, the election shall be irrevocable; provided,
however, that (1) if, in the event an election is a continuing
election, a Director or Eligible Executive may revoke that
election effective for those Fiscal Years that
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begin after the date he delivers written notice of such
revocation to the Compensation Committee in a form acceptable
to the Compensation Committee, and (2) the Compensation
Committee shall have the power to revoke such an election for
payroll periods (otherwise covered by such election) that
begin after the date the Compensation Committee exercises such
power if such Director or Eligible Executive demonstrates to
the Compensation Committee's satisfaction that a failure so to
revoke such election will result in an extreme financial
hardship for him.
(d) Percentage or Specific Dollar Figure. An election may describe
a deferral as a percentage of cash compensation or as a
specific dollar figure, provided that the dollar figure cannot
result in a deferral that exceeds the percentage limitations
set forth in Section 4.2.
SECTION 5
SUPPLEMENTAL ALLOCATIONS FOR CERTAIN ELIGIBLE EXECUTIVES
For each Fiscal Year, Flowers shall make a supplemental allocation to
the Account of each Eligible Executive
(i) who is employed by a Company listed on Schedule A attached
hereto and whose most recent date of hire is subsequent to
December 31, 1998, or
(ii) who is employed by a Company listed on Schedule B attached
hereto, regardless of his date of hire, equal to the sum of
(a) fifty percent (50%) of the amount deferred by him
pursuant to Section 4.1 during such Fiscal Year, to
the extent that the amount
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so deferred does not exceed six percent (6%) of his
Compensation for such Fiscal Year, less (but not
below zero) an amount equal to three percent (3%) of
the lower of (i) his actual Compensation (not
including any amounts deferred pursuant to Section
4.1) or (ii) the Compensation Limit for such Fiscal
Year, and
(b) two percent (2%) of the Eligible Executive's
Compensation for such Fiscal Year, less (but not
below zero) an amount equal to two percent (2%) of
the lower of (i) his actual Compensation (not
including any amounts deferred pursuant to Section
4.1) or (ii) the Compensation Limit for such Fiscal
Year,
to be allocated to the Eligible Executive's Account as of the earlier of the
last day of such Fiscal Year or the date during such Fiscal Year that his
employment by Flowers and its subsidiaries terminates for any reason (other than
a mere transfer between or among such entities) whatsoever, including death,
disability or retirement.
SECTION 6
ACCOUNTS
Flowers shall maintain an Account for each Director and Eligible
Executive who makes an effective election under Section 4 which shall show as of
a given date (a) as a credit, the total dollar amount, if any, deferred under
Section 4 through such date and the interest credits made under Section 7
through such date, (b) as a credit, the total dollar amount, if any, of any
supplemental allocations made by Flowers under Section 5 through such date and
the interest credits made under Section 7 through such date, (c) as a debit, the
total dollar amount, if any, distributed under Section 8 through such date, (d)
the excess of such credits over such debits, or
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the "account balance," at the end of each such date and (e) such other data as
the Compensation Committee deems relevant. If a person participates in this EDCP
as a Director and as an Eligible Executive, separate Accounts shall be
maintained for the deferrals that he elects as a Director and for the deferrals
that he elects as an Eligible Executive. Each Account shall be cancelled when
the Account balance reaches zero. If an Account is maintained during a Fiscal
Year for a Director or Eligible Executive, after the end of such year, Flowers
shall furnish a statement to such Director or Eligible Executive that shows the
balance in his Account at the end of such year and (at the Compensation
Committee's discretion) such other Account data as the Compensation Committee
deems appropriate.
SECTION 7
INTEREST CREDIT
Interest credits shall be made by Flowers at the EDCP Credit Rate to
each Account as of the end of the last day in each Fiscal Quarter based on the
daily Account balance in each such Account over each such quarter. The date in
any such Fiscal Quarter on which an Account balance becomes zero shall be
treated for this purpose as the last day of such quarter.
SECTION 8
DISTRIBUTIONS
8.1. Distribution Events. Subject to Section 8.5, the distribution
of a Director or Eligible Executive's Account shall commence at the direction of
the Compensation Committee as of the first day of the first Fiscal Quarter that
begins after the earlier of (a) the date he (for any reason whatsoever) no
longer serves as a member of the Board of Directors as for any Account
maintained for him as a Director, or (b) the date his employment by Flowers and
its subsidiaries terminates for any reason (other than a mere transfer between
or among such entities)
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whatsoever, including death, disability or retirement, as for any Account
maintained for him as an Eligible Executive. In the event of a termination of
this EDCP, the distribution of a Director or Eligible Executive's Account shall
be made in an immediate lump-sum as soon as administratively practicable on or
after the effective date fixed for termination of this EDCP. Each distribution
to a Director or Eligible Executive under this Section 8 shall become a debit
against his Account under Section 6 on the date the distribution is made by
Flowers.
8.2. Methods. Subject to Sections 8.4 and 8.5, the distribution of
an Account to a Director or Eligible Executive shall be made in equal quarterly
installments over sixty (60) Fiscal Quarters; provided, however, that a Director
or Eligible Executive may request in writing that the Compensation Committee
direct that his distribution be made:
(a) in an lump-sum;
(b) in equal quarterly installments over a specific number of
Fiscal Quarters that is less than sixty (60) Fiscal Quarters;
or
(c) in a lump-sum at the expiration of a specific number of Fiscal
Quarters that is sixty (60) or less, during which period
interest credits shall be made under Section 7 and distributed
under Section 8.3 pending such lump-sum distribution.
Any such request shall not be considered, however, unless it is received no
later than one full year before the date of the event resulting in his
entitlement to a distribution. The Compensation Committee, after taking into
account Flowers' current and anticipated liquidity requirements and such other
factors as the Compensation Committee, in its discretion, deems appropriate
under the circumstances, either shall grant such request or (if the Compensation
Committee is unwilling to accelerate the distribution to the extent requested)
shall direct that his distribution be made over a number of Fiscal Quarters that
is greater than the number requested, but which is no more than
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sixty (60) Fiscal Quarters. The calculation of equal quarterly installments for
a distribution shall be made by dividing an Account balance on the date as of
which distribution is scheduled to commence under Section 8.1 by the number of
Fiscal Quarters over which the distribution shall be made. Interest shall
continue to be credited, and shall be distributed at the time of each quarterly
distribution, as provided in Section 7 and Section 8.3.
Notwithstanding any other provision hereof to the contrary, following a
Change in Control of Flowers, the undistributed balance of each Director's and
Eligible Executive's Account shall be immediately distributed in a lump-sum.
8.3. Interest Credits. Interest credits made under Section 7 to an
Account after the date the distribution of that Account is scheduled to commence
under Section 8.1 shall be distributed in the form of cash to the Director or
Eligible Executive as soon as practicable after the date the credit is made
under Section 7.
8.4. Automatic Lump-Sum. If an Eligible Executive's Account balance
is one hundred thousand dollars ($100,000) or less on the date distribution is
scheduled to commence under Section 8.1, such Account balance shall be
distributed automatically in a lump-sum. If a person has one Account as a
Director and one Account as an Eligible Executive, such Accounts shall be
aggregated to determine whether this Section 8.4 is applicable to either such
Account, even if such Accounts do not become distributable under Section 8.1 as
of the same date.
8.5. Special Circumstances. The Compensation Committee shall have
the power, in its absolute discretion, to treat a Director as if he had retired
under subsection (1) of Section 8.1 or an Eligible Executive as if he had
retired under subsection (2) of Section 8.1(2) on any date (without regard to
whether he actually retires) in the event that the Director or Eligible
Executive, in the judgment of the Compensation Committee, experiences (a) an
extreme
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financial hardship or (b) rapidly failing health. The Compensation Committee
also shall have the power, in its absolute discretion, to accelerate the
distribution of a Director's or Eligible Executive's Account under Section 8.2
to the extent that the Compensation Committee, acting in its absolute
discretion, deems appropriate under the circumstances in the event that the
Director or Eligible Executive (1) dies or, in the judgment of the Compensation
Committee, experiences (2) an extreme financial hardship or (3) rapidly failing
health.
8.6. Source of Distributions. All distributions under this EDCP
shall be made by Flowers from its general assets, and the status of each
Director's and Eligible Executive's claim to his Account balance shall be the
same as the status of a claim against Flowers by any of its general and
unsecured creditors. No person shall look to, or have any claim whatsoever
against, any officer, director, employee or agent of Flowers in his individual
capacity for the distribution of his Account balance or for the payment of any
other amounts in connection with his Account.
SECTION 9
MISCELLANEOUS
9.1. Beneficiary. Each Director and Eligible Executive (for whom an
Account is maintained) shall designate a Beneficiary or Beneficiaries to receive
the balance, if any, of his Account under this EDCP in the event of his death.
Such designation shall be made on a form acceptable to the Compensation
Committee and shall become effective when delivered to the Compensation
Committee. If no such designated Beneficiary survives an Eligible Executive or
if no designation is made, the Eligible Executive's estate shall be deemed his
designated Beneficiary under this EDCP.
9.2. No Assignment; Binding Effect. No Director, Eligible Executive
or Beneficiary shall have the right to alienate, assign, commute or otherwise
encumber an Account for any
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purpose whatsoever, and any attempt to do so shall be disregarded completely as
null and void. The provisions of this EDCP shall be binding on each Director and
Eligible Executive (and on each person who claims a benefit under him) and on
Flowers (and on any successor to Flowers).
9.3. ERISA. Flowers intends that this EDCP come within the various
exceptions and exemptions to the Employee Retirement Income Security Act of
1974, as amended, for an unfunded deferred compensation plan maintained
primarily for a select group of management or highly compensated employees, and
any ambiguities in this EDCP shall be construed to effect that intent.
9.4. Compensation Committee Powers. The Compensation Committee, in
the administration of this EDCP, shall have the power to take such equitable and
other action as the Compensation Committee, acting in its absolute discretion,
deems proper or appropriate under the circumstances (including the power to
delegate committee functions to others), to the extent that such action is not
inconsistent with the express provisions of this EDCP, as approved by the Board
of Directors. However, no member of the Compensation Committee shall act on any
request made by him under Section 8.2 or on any determination under subsection
(c)(2) of Section 4.3 or Section 8.5 which relates to himself.
9.5. Construction. This EDCP shall be construed in accordance with
the laws of the State of Georgia. Headings and sub-headings have been added only
for convenience of reference and shall have no substantive effect. All
references to "Sections" shall be to sections of this EDCP. References to the
masculine gender shall include the feminine and the singular the plural,
whenever appropriate. The terms "Director" and "Eligible Executive" shall
include (except under Section 4) a former Director, a former Eligible Executive
and any Beneficiary of a deceased Director or Eligible Executive.
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9.6. Term of Office. A Director's participation in this EDCP shall
not constitute a contract for a Director to serve as a member of the Board of
Directors for any particular term or for any particular fee, and participation
in this EDCP shall have no bearing whatsoever on such terms, fees or any other
conditions of membership on the Board of Directors.
9.7. Employment Contract. An Eligible Executive's participation in
this EDCP shall not constitute an employment contract, and Flowers shall have
the right at any time to terminate his employment, to reduce his cash or other
compensation or to take such other action in connection with his employment as
Flowers deems appropriate without regard to this EDCP.
9.8. Amendment and Termination. The Board of Directors or the
Executive Committee, upon the recommendation of the Compensation Committee,
shall have the right, at its discretion, to amend this EDCP from time to time
and to terminate this EDCP at any time; provided, however, that upon a Change in
Control, no future amendment shall be effective if such amendment has the effect
of restricting, delaying or impeding the distribution of any Director's or
Eligible Executive's Account pursuant to the terms of this EDCP, as in effect
prior to such Change in Control.
IN WITNESS WHEREOF, Flowers Foods, Inc. has executed this EDCP this day
of August 10, 2001.
FLOWERS FOODS, INC.
By: /s/ Jimmy Woodward
-----------------------------------------
Title: Vice President and Chief Financial
--------------------------------------
Officer
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