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EXHIBIT 10(vi)
LANCE, INC. BENEFIT RESTORATION PLAN
THIS INSTRUMENT, is executed as of the 15th day of April, 1994, by
LANCE, INC. a North Carolina corporation (the "Company").
Statement of Purpose
The Company maintains a tax-qualified, defined contribution plan known
as the "Lance, Inc. Profit Sharing Retirement Plan" (the "PSR Plan") for the
benefit of its eligible employees and the eligible employees of the Company's
affiliates which have adopted the PSR Plan. The Company desires to adopt and
establish a benefit restoration plan to provide benefits, on a nonqualified and
unfunded basis, to certain executive employees whose benefits under the PSR
Plan are adversely affected by the limitations of Sections 401(a)(17) and 415
of the Internal Revenue Code. The restoration plan shall be known as the
"Lance, Inc. Benefit Restoration Plan" and shall be effective as of December
27, 1992.
NOW, THEREFORE, the Company does hereby declare that the Lance, Inc.
Benefit Restoration Plan is hereby adopted effective as of December 27, 1992 to
consist of the following Articles I through V:
ARTICLE I
NAME, PURPOSE, CONSTRUCTION AND DEFINITIONS
Section 1.1. Name. The Plan shall be known as the "Lance, Inc.
Benefit Restoration Plan."
Section 1.2. Purpose. The purpose of the Plan is to provide
Participants the benefits (if any) that could not be provided to them under the
PSR Plan because of the limitations and restrictions of Section 401(a)(17) and
Section 415 of the Code.
Section 1.3. Construction. Article, Section and paragraph headings
have been inserted for convenience of reference only in the Plan and are to be
ignored in any construction of the provisions hereof. If any provision of the
Plan shall for any reason be invalid or unenforceable, the remaining provisions
shall nevertheless be valid, enforceable and fully effective. The Plan shall
be construed, administered, regulated and governed in all respects under and by
the laws of the United States to the extent applicable and, to the extent such
laws are not applicable, by the laws of the State of North Carolina.
Section 1.4. Definitions. Whenever used in the Plan, and unless the
context clearly indicates otherwise, the following terms shall have the
following meanings:
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(a) Amendment or Termination Date means the date on which
an amendment to or the termination of the Plan is adopted by the Board
of Directors or, if later, the effective date of such amendment or
termination.
(b) Beneficiary means, with respect to a Participant, the
person(s) or entity(ies) designated as the Participant's "Beneficiary"
under (and as defined in) the PSR Plan.
(c) Board or Board of Directors means the Board of
Directors of the Company or any committee or committees of the Board
of Directors of the Company to which, and to the extent, the Board of
Directors of the Company has delegated some or all of its power,
authority, duties or responsibilities with respect to the Plan.
(d) Code means the Internal Revenue Code of 1986, as the
same may be amended from time to time, and references thereto shall
include the valid Treasury regulations issued thereunder.
(e) Committee means the Committee described in Article III
hereof.
(f) Company means Lance, Inc., a North Carolina
corporation.
(g) General Fund means the separate investment fund
maintained in the trust for the PSR Plan and known as the "General
Fund."
(h) Participant means an employee of a Participating
Employer who has been designated a Participant in the Plan as provided
in Section 2.1.
(i) Participating Employers means the Company and those
subsidiary, affiliate or associated corporations of the Company which
hereafter adopt the Plan.
(j) Plan means the Lance, Inc. Benefit Restoration Plan,
as set forth herein, together with any and all amendments thereto.
(k) Plan Year means the taxable year of the Company
determined under Section 441 of the Code.
(l) PSR Plan means the defined contribution profit-sharing
plan maintained by the Company known as the "Lance, Inc.
Profit-Sharing Retirement Plan," as amended from time to time.
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(m) Restoration Account means the bookkeeping account
maintained under the Plan for a Participant, as adjusted from time to
time pursuant to Section 2.2.
(n) Valuation Date means the last day of each Plan Year.
ARTICLE II
PARTICIPATION AND BENEFITS
Section 2.1. Participation. No person shall become a Participant
unless or until such person becomes an employee of a Participating Employer and
has been designated a Participant in the Plan. The Board of Directors, in its
sole and exclusive discretion, shall determine which employees of the
Participating Employers shall become Participants. Designation of employees as
Participants shall be made in such manner as the Board of Directors shall
determine from time to time. No employee shall have any right to participate
in the Plan unless and until designated as a Participant by the Board of
Directors even though such employee's benefits under the PSR Plan are adversely
affected by the limitations of Sections 415 and 401(a)(17) of the Code.
Section 2.2. PSR Plan Restoration Benefits. A Restoration Account
shall be established on the books and records of the Plan for a Participant
effective as of the date the Participant commences participation in the Plan.
The amount of benefits payable under the Plan to a Participant (or if the
Participant is deceased, the Participant's Beneficiary) shall be the amount
credited to the Participant's Restoration Account. The Participant's
Restoration Account shall be adjusted as of each Valuation Date as follows:
(i) First, the Participant's Restoration Account shall be
debited with an amount equal to all distributions from such
Restoration Account since the immediately preceding Valuation Date;
(ii) Second, the Participant's Restoration Account shall be
credited or debited, as the case may be, with an amount equal to the
income, dividend, expense, gain, loss or other appreciation or
depreciation in value which would have been earned (or lost) by the
amount credited to the Participant's Restoration Account as of the
immediately preceding Valuation Date less the amount of all
distributions from such Restoration Account since the immediately
preceding Valuation Date if said amount less said distributions had
been held and invested during that period in the General Fund; and
(iii) Third, the Participant's Restoration Account shall be
credited with an amount equal to the excess, if any, of:
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(A) the aggregate amount of the "Contribution" and
"Forfeitures" that would have been allocated to the
Participant's "Individual Account" under the PSR Plan as of
such date had the limitation imposed by Section 415 of the
Code not been in effect, and had the amount of the
Participant's compensation used in calculating the amount of
said "Contribution" and "Forfeitures" so allocated to said
account under the terms of the PSR Plan not been limited by
Section 401(a)(17) of the Code, over
(B) the amount of the "Contribution" and
"Forfeitures" actually allocated to the Participant's
"Individual Account" under the PSR Plan as of such date.
Section 2.3. Benefit Payments.
(a) Time and Method of Payment. No payments under the Plan shall be
made until after a Participant's termination of employment with the
Participating Employers. The Participant's Restoration Account shall be paid
to the Participant (or the Participant's Beneficiary if the Participant is
deceased) in annual installments commencing on the April 1 following the Plan
Year during which such termination of employment occurs and continuing on each
April 1 thereafter until paid in full in annual amounts equal to the lesser of
(i) Twenty-Five Thousand Dollars ($25,000) or (ii) the balance of such
Restoration Account. In the event a Participant dies prior to receiving such
single cash payment, the remaining payment(s) from the Participant's
Restoration Account shall be paid to the Participant's Beneficiary at the same
time the payment(s) would have been paid to the Participant. The Participant's
Restoration Account shall continue to be adjusted in accordance with the
applicable provisions of Section 2.2 during the distribution period.
(b) Tax Withholding. The Participating Employers shall withhold from
any payment under the Plan to a Participant or Beneficiary all federal, state
or local income or employment taxes required by law to be withheld from such
payment and shall remit such taxes to the proper taxing authority(ies).
ARTICLE III
COMMITTEE
Section 3.1. General. The Committee shall consist at any time of
those individuals who are serving at such time as the members of the "Advisory
Committee" for the PSR Plan.
Section 3.2. Powers of Committee. The Committee shall administer the
Plan and shall have all powers necessary to enable it to carry out its duties
under the Plan. Not in limitation of
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the foregoing, the Committee shall have the power to construe and interpret the
Plan and to determine all questions that shall arise thereunder. The Committee
shall have such other and further specified duties, powers, authority and
discretion as are elsewhere in the Plan either expressly or by necessary
implication conferred upon it. The Committee shall act by majority vote and
may adopt such bylaws, rules and regulations as it deems desirable for the
conduct of its affairs. The Committee may appoint such agents, who need not be
members of the Committee, as it may deem necessary for the effective
performance of its duties, and may delegate to such agents such powers and
duties, whether ministerial or discretionary, as the Committee may deem
expedient or appropriate. The decision of the Committee upon all matters
within the scope of its authority shall be final and conclusive on all persons,
except to the extent otherwise provided by law. Not in limitation of the
foregoing, the Committee shall have the discretion to decide any factual or
interpretive issues in its administration of the Plan, and the Committee's
exercise of such discretion shall be conclusive and binding on all affected
parties as long as it is not arbitrary or capricious.
Section 3.3. Expenses of Committee. The reasonable expenses incurred
by the Committee in the performance of its duties under the Plan, including
without limitation reasonable counsel fees and the expenses of other agents,
shall be paid by the Participating Employers.
Section 3.4. Indemnification of Committee. To the extent permitted by
applicable law, the Participating Employers shall indemnify and hold harmless
each member of the Committee from and against any and all liability, claims,
demands, costs and expenses (including the costs and expenses of attorneys
incurred in connection with the investigation or defense of claims) in any
manner connected with or arising out of any actions or inactions in connection
with the administration of the Plan except for such actions or inactions which
are not in good faith or which constitute willful misconduct.
ARTICLE IV
AMENDMENT AND TERMINATION
Section 4.1. Amendment of Plan. Subject to the provisions of Section
4.4 of the Plan, the Participating Employers expressly reserve the right, at
any time and from time to time, to amend in whole or in part any of the terms
and provisions of the Plan for whatever reason(s) the Participating Employers
may deem appropriate.
Section 4.2. Termination of Plan. Subject to the provisions of
Section 4.4 of the Plan, the Participating Employers expressly reserve the
right, at any time and for whatever reason they may deem appropriate, to
terminate the Plan.
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Section 4.3. Effective Date and Procedure for Amendment or
Termination. Subject to the provisions of Section 4.4, any amendment to the
Plan or termination of the Plan may be retroactive to the extent not prohibited
by applicable law. Any amendment to the Plan or termination of the Plan shall
be made by the Participating Employers by resolution of the Board of Directors
and shall not require the approval or consent of any Participant or Beneficiary
in order to be effective.
Section 4.4. Effect of Amendment or Termination on Certain Benefits.
No amendment or termination of the Plan may reduce or eliminate the benefits
that would have been payable under Article II (without regard to such amendment
or termination) to a Participant determined as if such Participant had
terminated employment with the Participating Employers immediately prior to the
Amendment or Termination Date and had been otherwise entitled to receive the
benefits (if any) payable to such Participant at such time under Article II.
ARTICLE V
MISCELLANEOUS
Section 5.1. Adoption by a Affiliated Entities. Any entity which is a
"Participating Employer" under (and as defined in) the PSR Plan may, with the
approval of the Board of Directors, elect to adopt the Plan as of a date
mutually agreeable to the Board of Directors and such entity. Any such
adoption of the Plan shall be evidenced by an appropriate instrument of
adoption executed by such entity.
Section 5.2. Authorization and Delegation to the Board of Directors.
Each entity which hereafter becomes a Participating Employer authorizes and
empowers the Board of Directors (i) to amend or terminate the Plan as provided
in Article IV without further action by said entity and (ii) to perform such
other acts and to do such other things as the Board of Directors is expressly
directed, authorized or permitted to perform or do as provided herein.
Section 5.3. Spendthrift Clause. To the extent permitted by law, none
of the benefits payable under the Plan shall be subject to the claim of any
creditor of any Participant or Beneficiary or to any legal process by any
creditor of any Participant or Beneficiary, and no Participant or Beneficiary
entitled to benefits hereunder shall have any right whatsoever to alienate,
commute, anticipate or assign any benefits under the Plan.
Section 5.4. No Employment Rights. Participation in the Plan shall
not give any Participant any right to remain in the employ of any Participating
Employer or upon dismissal, any right or interest in the Plan except as
expressly provided herein.
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Section 5.5. Payments to Minors and Incompetents. If a Participant or
Beneficiary entitled to receive any benefits hereunder is a minor or is deemed
by the Committee or is adjudged to be legally incapable of giving a valid
receipt and discharge for such benefits, such benefits shall be paid to the
duly appointed guardian of such minor or incompetent or to such other legally
appointed person as the Committee may designate. Such payment shall, to the
extent made, be deemed a complete discharge of any liability for such payment
under the Plan.
Section 5.6. Nature of the Plan and Rights. The Plan is unfunded and
intended to constitute a deferred compensation plan for a select group of key
management employees of the Participating Employers. The Restoration Accounts
established and maintained under the Plan are for accounting purposes only and
shall not be deemed or construed to create a trust fund of any kind or to grant
a property interest of any kind to any Participant or Beneficiary. The amounts
credited to such Restoration Accounts are and for all purposes shall continue
to be a part of the general assets of the Participating Employers, and to the
extent a Participant or Beneficiary acquires a right to receive benefits under
the Plan, such right shall be no greater than the right of any unsecured
general creditor of the Participating Employers.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its duly authorized officers, all as of the 15th day of April,
1994.
LANCE, INC.
By: S/J.W. Disher
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President
[CORPORATE SEAL]
Attest:
S/E. D. Leake
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Assistant Secretary
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