Exhibit 10(f)
CBRL GROUP, INC.
2005 NON-QUALIFIED SAVINGS PLAN
Effective January 1, 2005
TABLE OF CONTENTS
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Page
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Section 1. Operation of Plan and Definitions...............................................................1
Section 2. Participation...................................................................................5
Section 3. Contributions...................................................................................5
3.1. Supplemental Savings Contributions..............................................................5
3.2. Supplemental Matching Contributions.............................................................5
3.3. Crediting of Contributions......................................................................5
Section 4. Investment of Accounts..........................................................................6
4.1. Investment Direction............................................................................6
4.2. Investment Funds................................................................................6
Section 5. Valuations and Crediting........................................................................6
5.1. Valuations......................................................................................6
5.2. Credits to and Charges Against Accounts.........................................................6
5.3. Expenses........................................................................................7
Section 6. Vesting and Separation from Service.............................................................7
6.1. Vested Percentage...............................................................................7
6.2. Forfeiture......................................................................................7
Section 7. Benefits........................................................................................8
7.1. Forms of Benefit Payments.......................................................................8
7.2. Retirement Benefit..............................................................................8
7.3. Death Benefit...................................................................................8
7.4. Beneficiary Designation ........................................................................8
7.5. In-Service Distributions due to Unforeseeable Emergency.........................................9
7.6. Distributions on a Specified Date...............................................................9
7.7. Withholding.....................................................................................9
Section 8. The Plan Administrator..........................................................................9
8.1. Plan Administrator..............................................................................9
8.2. Engagement of Assistants and Advisors..........................................................10
8.3. Compensation...................................................................................10
8.4. Indemnification of the Plan Administrator......................................................10
Section 9. Authority and Responsibilities of the Company..................................................10
Section 10. Claims Procedures..............................................................................11
10.1. Claims.........................................................................................11
10.2. Appeal of Adverse Benefit Determinations.......................................................11
10.3. Notification of Benefit Determination on Review................................................12
10.4. Definitions....................................................................................13
Section ll. Amendment, Termination, Mergers and Consolidations.............................................14
11.1. Amendment......................................................................................14
11.2. Termination....................................................................................14
11.3. Permanent Discontinuance of Contributions......................................................14
Section 12. Participating Employers........................................................................14
12.1. Adoption by Other Corporations.................................................................14
12.2. Requirements of Participating Employers........................................................15
12.3. Designation of Agent...........................................................................15
12.4. Eligible Person Transfers......................................................................15
12.5. Discontinuance of Participation................................................................15
12.6. Plan Administrator's Authority.................................................................15
Section 13. Miscellaneous Provisions.......................................................................15
13.1. Nonalienation of Benefits......................................................................15
13.2. No Contract of Employment......................................................................15
13.3. Severability...................................................................................15
13.4. Successors.....................................................................................16
13.5. Captions.......................................................................................16
13.6. Gender and Number..............................................................................16
13.7. Controlling Law................................................................................16
13.8 Title to Assets................................................................................16
13.9. Payments to Minors, Etc........................................................................16
13.10. Acknowledgments................................................................................16
13.11. Entire Agreement; Successors...................................................................16
13.12. Tax Effects....................................................................................16
CBRL GROUP, INC.
2005 NON-QUALIFIED SAVINGS PLAN
RECITALS
WHEREAS, effective January 1, 1996, Cracker Barrel Old Country Store, Inc.
established the Cracker Barrel Old Country Store, Inc. Non-Qualified Savings
Plan (the "NQSP"); and
WHEREAS, effective as of January 1, 2003, CBRL, Inc. assumed sponsorship of
the NQSP and amended and restated the NQSP in its entirety as the CBRL Group,
Inc. Non-Qualified Savings Plan (the "Prior Plan"); and
WHEREAS, in order to comply with the requirements of the Code, as amended
by the American Jobs Creation Act of 2004 (the "Act"), it is necessary to amend
and restate the Prior Plan with respect to the portion of each Participant's
Account which is subject to the requirements of the Act;
NOW, THEREFORE, effective as of the Effective Date, CBRL, Inc. hereby
adopts the CBRL Group, Inc. 2005 Non-Qualified Savings Plan (the "Plan"), as set
forth herein or as hereafter amended, for the purpose of assuring compliance
with the Code with respect to deferrals of compensation on or after January 1,
2005.
The Plan shall provide as follows:
Section 1. Operation of Plan and Definitions. This Plan shall be deemed to
have amended and restated the Prior Plan and, commencing on the Effective Date,
shall govern all amounts credited to a Participant's Account other than Prior
Plan Deferrals. The terms of the Prior Plan shall remain in effect with respect
to the portion of a Participant's Account consisting of Prior Plan Deferrals.
For the purposes of this Plan, the following terms will have the meanings
assigned in this Section, which will be equally applicable to the singular and
plural forms of such terms, unless the context requires otherwise, when used in
this Plan;
"Account" means the account maintained for a Participant under the Plan. A
Participant's Account will consist of his or her Supplemental Savings Account
and Supplemental Matching Account, plus investment earnings, if any, credited to
those Accounts.
"Affiliate" means any Employer and any entity if such entity, with the
Employer, constitutes (a) a controlled group of corporations (within the meaning
of Section 414(b) of the Code), (b) a group of trades or businesses under common
control (within the meaning of Section 414(c) of the Code), (c) an affiliated
service group (within the meaning of Section 414(m) of the Code), or (d) a group
of entities required to be aggregated pursuant to Section 414(o) of the Code and
the regulations thereunder.
"Beneficiary" means the beneficiary under the Plan of any deceased
Participant.
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"Board of Directors" means the board of directors of the Company.
"Change in Control" means: (i) a person becomes the beneficial owner,
directly or indirectly, of securities of the Company representing 20% or more of
the combined voting power of its then outstanding voting securities, unless that
acquisition was approved by a vote of at least 2/3 of the members of the Board
of Directors in office immediately prior to the acquisition; (ii) that during
any period of 2 consecutive years, individuals who at the beginning of the
period constitute members of the Board of Directors cease for any reason to
constitute a majority of the Board of Directors unless the election, or the
nomination for election by the shareholders of the Company, of each new member
was approved by a vote of at least 2/3 of the members of the Board of Directors
then still in office who were members at the beginning of the 2-year period;
(iii) a merger, consolidation or reorganization of the Company (but this
provision does not apply to a recapitalization or similar financial
restructuring which does not involve a material change in ownership of equity of
the Company and which does not result in a change in membership of the Board of
Directors); or (iv) a sale of all or substantially all of the assets of the
Company.
"Code" means the Internal Revenue Code of 1986, as now or hereafter
existing, amended, construed, interpreted, and applied by regulations, rulings
or cases.
"Company" means CBRL Group, Inc., and any successor thereto.
"Compensation" means any form of compensation received by an Eligible
Person from an Employer while the Eligible Person is a Participant, including
basic salary or wages, bonuses, cash incentive plan payments, vacation, holiday
and sick pay or, except as otherwise provided herein, any other direct current
compensation which is required to be reported as income for purposes of federal
income tax for the Plan Year, without giving effect to any reduction of
compensation resulting from pre-tax saving contributions under the Qualified
Plan or any other salary reduction arrangement pursuant to Section 125 of the
Code. Compensation shall not include: any amount attributable to an Eligible
Person winning a gift or contest sponsored by the Employer; Employer
contributions to Social Security; "earned income credit" as reported on the
Employer's payroll system; other contributions to, or distributions from, this
or any other deferred compensation plan or program; severance pay; stock
options; any and all long-term disability income payments, without regard to
whether they are paid through the Employer's payroll system; any and all
state-sponsored short-term disability income payments, without regard to whether
they are paid through the Employer's payroll system; any and all amounts related
to relocation expense reimbursement; deferred commission payments; any amounts
paid to compensate an Eligible Person for taxes attributable to his living
outside the United States for purposes of his service to the Employer; or the
value of any other fringe benefits provided at the expense of the Employer,
which shall include, but not be limited to, the following items as reported
through the Employer's payroll system: excess life insurance; commuter car
mileage; gift card fringe benefits; "Rocking Chair Compensation"; payment of
membership in athletic facilities; and "health card dividends." The Compensation
taken into account for a Participant for a Plan Year will include compensation
in excess of the limit under Section 401(a)(17) of the Code.
"Effective Date" means January 1, 2005.
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"Election Date" shall mean, with respect to regular Compensation or
Performance-Based Compensation earned during a Plan Year, December 31 of the
Plan Year preceding the Plan Year during which the services giving rise to such
Compensation are performed. Provided, however, that for the first Plan Year in
which an individual becomes an Eligible Person, the Election Date shall mean the
30th day after the individual first became an Eligible Person, but an Enrollment
and Change Designation filed by such individual shall apply only to Compensation
otherwise payable after the date on which the Enrollment and Change Designation
is filed.
"Eligible Person" means any person who is a member of a select group of
management or highly compensated employees and who either (i) was eligible to
participate in the Prior Plan immediately prior to the Effective Date, or (ii)
is employed by the Employer in a category of employment designated by the
Employer on Exhibit A as eligible for participation in the Plan.
"Employer" means the Company and any Affiliate which, with the consent of
the Board of Directors, adopts this Plan and joins in the Trust Agreement.
"Enrollment and Change Designation" means an agreement, on a form or by a
method prescribed by the Plan Administrator, between a Participant and his or
her Employer providing for any of the following: (i) reduction of the
Participant's Compensation and the crediting of Supplemental Savings
Contributions by the Employer to the Participant's Supplemental Savings Account,
(ii) in accordance with Section 7.1, the form of payment of the Participant's
Account; and (iii) designation of one or more Investment Funds with respect to
the Participant's Accounts.
"ERISA" means the Employee Retirement Income Security Act of 1974, as now
or hereafter existing, amended, construed, interpreted, and applied by
regulations, rulings or cases.
"Investment Fund" means a fund managed by one or more investment managers,
including a regulated investment company, or any other investments designated by
the Company from time to time.
"Normal Retirement Date" means the first date on which a Participant's age
and Years of Vesting Service total 65 or more.
"Participant" means any Eligible Person who has been admitted to
participation in the Plan by filing an Enrollment and Change Designation with
the Plan Administrator, and who has not ceased participation in the Plan.
"Performance-Based Compensation" shall mean Compensation where (i) the
payment of the Compensation or the amount of the Compensation is contingent on
the satisfaction of organizational or individual performance criteria, and (ii)
the performance criteria are not substantially certain to be met at the time a
deferral election is permitted. Performance-Based Compensation may include
payments based upon subjective performance criteria, but (i) any subjective
performance criteria must relate to the performance of the Participant, a group
of service providers that includes the Participant, or a business unit for which
the Participant provides services (which may include the entire organization);
and (ii) the determination that any subjective performance criteria have been
met must not be made by the Participant or a family member of the Participant
(as defined in ss. 267(c)(4) of the Code, applied as if the family of an
individual includes the spouse of any member of the family). Performance-Based
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Compensation may also include payments based on performance criteria that are
not approved by a compensation committee of the Board of Directors or by the
stockholders of the Company. Notwithstanding the foregoing, Performance-Based
Compensation does not include any amount or portion of any amount that will be
paid either regardless of performance, or based upon a level of performance that
is substantially certain to be met at the time the criteria is established, or
that is based solely on the value of, or appreciation in value of, the Company
or the stock of the Company.
"Plan" means the CBRL Group, Inc. 2005 Non-Qualified Savings Plan, as set
forth herein and as the same may from time to time be amended.
"Plan Administrator" means the person, committee or other entity appointed
by the Company to administer the Plan or, in the absence of such appointment,
the Company.
"Plan Year" means the calendar year.
"Prior Plan" means the CBRL Group, Inc. Non-Qualified Savings Plan, as in
effect immediately prior to the Effective Date of this Plan.
"Prior Plan Deferrals" means the amount which, immediately prior to the
Effective Date, was credited to the Participant's Account and which on such date
was not subject to forfeiture, and any investment earnings allocated to such
amount since the Effective Date.
"Qualified Plan" means the Cracker Barrel Old Country Store, Inc. and
Affiliates Employee Savings Plan, a profit sharing plan with a cash or deferred
feature, as the same may from time to time be amended.
"Specified Employee" means a key employee (as defined in Section 416(i) of
the Code, but without regard to paragraph (5) thereof) of the Company. Provided,
however, that no Participant shall be considered to be a Specified Employee as
of any date unless on such date the stock of the Company is publicly traded on
an established securities market or otherwise.
"Separation Date" means the date a person is no longer employed by any
Affiliate.
"Supplemental Matching Account" means the portion of the Account of a
Participant consisting of Supplemental Matching Contributions and adjusted for
investment earnings or losses, if any, on those contributions, as provided under
the Plan.
"Supplemental Matching Contribution" means the amount credited by the
Employer under Section 3.2.1.
"Supplemental Matching Performance Based Contribution" means the amount, if
any, credited by the Employer under Section 3.2.2.
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"Supplemental Savings Account" means the portion of the Account of a
Participant consisting of Supplemental Savings Contributions and adjusted for
investment earnings or losses, if any, on those contributions, as provided under
the Plan.
"Supplemental Savings Contribution" means the amount credited by the
Employer under Section 3.1 as a result of a Participant's election on an
Enrollment and Change Designation to reduce his or her Compensation.
"Trust Agreement" means the trust agreement entered into between the
Company and the Trustee in connection with this Plan, as the same presently
exists and as it may from time to time hereafter be amended.
"Trustee" means the party or parties acting as such under the Trust
Agreement.
"Trust Fund" means all of the assets held by the Trustee at any time under
the Trust Agreement.
"Unforeseeable Emergency" means a severe financial hardship to the
Participant resulting from an illness or accident of the Participant, the
Participant's spouse, or of a dependent (as defined in Section 152(a) of the
Code) of the Participant, loss of the Participant's property due to casualty, or
other similar extraordinary and unforeseeable circumstances arising as a result
of events beyond the control of the Participant. The circumstances that will
constitute an Unforeseeable Emergency will be determined by the Plan
Administrator depending upon the facts of each case.
"Valuation Date" means the last day of each Plan Year and each other
interim date on which the Plan Administrator directs the allocation of
distributions, contributions and earnings on Participants' Accounts.
"Year of Vesting Service" means a 12 month period of continuous service by
the Company as an employee or an Eligible Person.
Section 2. Participation. An Eligible Person may become a Participant for a
calendar year by filing with the Plan Administrator an Enrollment and Change
Designation on or before the Election Date for that calendar year.
Section 3. Contributions.
3.1. Supplemental Savings Contributions. The Employer will credit the
Participant's Supplemental Savings Account with a Supplemental Savings
Contribution on behalf of a Participant equal to the portion of the
Participant's Compensation (in increments of 1%, but not to exceed 50% (or 100%
in the case of Performance-Based Compensation) designated in the Participant's
Enrollment and Change Designation. Before the Election Date for each Plan Year,
each Participant will be entitled to submit or modify an Enrollment and Change
Designation which will change the amount of Supplemental Savings Contributions
that will be made to this Plan for the Plan Year. Participants may submit
separate Enrollment and Change Designations for regular Compensation and
Performance-Based Compensation.
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3.2. Supplemental Matching Contributions.
3.2.1. Ordinary Supplemental Matching Contributions. The Employer may
credit the Participant's Supplemental Matching Account with a Supplemental
Matching Contribution equal to 25% of the Participant's Supplemental Savings
Contributions, but determined without regard to any Supplemental Savings
Contribution which, when added to the Participant's elective deferrals to the
Qualified Plan, exceeds 6% of the Participant's Compensation.
3.2.2. Performance-Based Supplemental Matching Contributions. The Employer
may credit a Participant's Supplemental Matching Account with a Supplemental
Matching Contribution equal to a percentage, as determined by the Employer, of
the Participant's Supplemental Savings Contributions that are solely
attributable to Performance-Based Compensation.
3.3. Crediting of Contributions.
3.3.1. The Employer may establish a Trust Fund which shall consist of
assets which the Employer may use to offset its liability for payments due to
Participants under the Plan. The Trust Fund will, at all times, be subject to
the claims of judgment creditors of the Employer and will otherwise be on such
terms and conditions as will prevent taxation to Participants and Beneficiaries
of any amounts held in the Trust Fund or credited to Participant's Accounts
prior to the time payments are made to them. The Trust Agreement shall prohibit
the location of trust assets outside the United States or the transfer of trust
assets outside the United States. Rights to payments will not be limited to
assets held in the Trust Fund. The Plan constitutes a mere promise by the
Employer to make benefit payments in the future. It is the intention of the
Employer and the Participants that the Plan be unfunded for tax purposes and for
purposes of Title I of ERISA.
3.3.2. In the event of a Change in Control, or at other times in its
discretion, the Employer will contribute to the Trust Fund an amount equal to
all Supplemental Savings Contributions and Supplemental Matching Contributions
accrued by Participants. Such contribution shall be made within 60 days after
the date of a Change in Control or, for amounts accrued after the date of the
Change in Control, during or within a reasonable time after the end of the Plan
Year in which the contribution is credited to the Participants' Account.
Section 4. Investment of Accounts.
4.1. Investment Direction. Each Participant will have the right to submit
to the Company a request that investment returns on the Participant's Account be
determined on the basis of the performance of one or more of the Investment
Funds. Such Participant request shall not result in any assurance to a
Participant that Supplemental Savings Contributions or Supplemental Matching
Contributions will actually be invested by the Trustee in one or more of the
Investment Funds. A Participant may make or change an investment request in
accordance with rules established by the Plan Administrator, by notifying the
Plan Administrator (or such other person or entity as may be designated by the
Plan Administrator) of such election or change in the manner designated by the
Plan Administrator from time to time.
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4.2. Investment Funds. The Plan Administrator will select three or more
Investment Funds according to criteria established by the Plan Administrator.
The Plan Administrator will have the right to merge or modify any existing
Investment Funds, or to designate or create additional Investment Funds. The
assets of the Trust Fund shall be allocated among such investments as the
Administrator, in its sole and absolute discretion, shall designate from time to
time, unless such investments would cause the Trust Fund to fail to constitute a
valid trust under applicable law, in which case the Trustee shall determine
applicable Trust Fund investments in accordance with the Trust Agreement.
Section 5. Valuations and Crediting.
5.1. Valuations. The amount credited to each Participant's Account will be
determined by the Plan Administrator as of the close of business on each
Valuation Date.
5.2. Credits to and Charges Against Accounts. As of each Valuation Date,
all crediting to and charging against Accounts will be made as follows:
5.2.1. First, there will be determined the net adjusted Account by (a)
charging all distributions and withdrawals made during the period from the
previous Valuation Date to the current Valuation Date, (b) crediting
contributions to the Account since the preceding Valuation Date, and (c) at the
option of the Plan Administrator, charging specifically against the Accounts of
Participants all or a portion of administrative expenses relating to the
maintenance of such Accounts.
5.2.2. Second, all earnings or losses of the Investment Funds will be
allocated by the Plan Administrator in its discretion among the Participants'
Accounts according to their net adjusted Accounts and the relative portions of
such Accounts which are deemed by the Plan Administrator to be allocated to each
Investment Fund.
5.3. Expenses. All brokerage fees, transfer taxes, and other expenses
incurred in connection with the investment of the Trust Fund will be added to
the cost of such investments or deducted from the proceeds thereof, as the case
may be. All other costs and expenses of administering the Plan will be paid or
reimbursed from the Trust Fund, except to the extent that the Employer elects to
pay such costs and expenses without reimbursement.
Section 6. Vesting and Separation from Service.
6.1. Vested Percentage.
6.1.1. A Participant will at all times be fully vested in his or her
Supplemental Savings Account.
6.1.2. A Participant's Supplemental Matching Account will become fully
vested in the event of the Participant's death prior to otherwise separating
from the service of the Employer.
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6.1.3. Except as otherwise provided in this Section, a Participant's vested
interest in the Participant's Supplemental Matching Account will be determined
under the following table:
Years of Continuous Employment Vested Percentage
less than 1 0%
1 but less than 2 20%
2 but less than 3 40%
3 but less than 4 60%
4 but less than 5 80%
5 or more 100%
6.2. Forfeiture. The nonvested portion of the Supplemental Matching Account
of a Participant who has incurred a Separation Date prior to the occurrence of
an event specified in Section 6.1.2 will be forfeited.
Section 7. Benefits.
7.1. Forms of Benefit Payments. Except as otherwise provided in this
section, a Participant or Beneficiary will receive any benefit to which he or
she is entitled in the form of a single cash distribution.
7.1.1 Provided, however, that if a Participant (i) incurs a Separation Date
after reaching the Normal Retirement Date, (ii) has so elected in an Enrollment
and Change Designation, and (iii) has a vested Account balance (or portion of
the vested Account balance to which the installment election applies) that
exceeds $5,000 on the Participant's Separation Date, then distribution of a
Participant's Account may be made in quarterly installments over a period not to
exceed 10 years.
7.1.2 Payment to a Participant or Beneficiary will commence within three
(3) months of the Participant's Separation Date. Provided, however, that for any
Specified Employee, distribution may not begin before the earlier of (i) six (6)
months after the Separation Date, or (ii) the date of the Participant's death.
7.1.3 A Participant may file a separate request for payment in installments
under this section 7.1 with respect to the portion of the Participant's Account
attributable to the Supplemental Savings Contributions and Supplemental Matching
Contributions for each Plan Year. Such a request must be made on the
Participant's Enrollment and Change Designation and filed with the Plan
Administrator by the Election Date for the Plan Year and, once made, may not be
revoked except in accordance with the provisions of this Plan or the Treasury
Regulations.
7.2. Retirement Benefit. Upon incurring a Separation Date, the Participant
will receive in accordance with Section 7.1 a retirement benefit in an amount
equal to the undistributed vested portion of the Participant's Account. The
Participant's Account shall be valued as of the Valuation Date coinciding with
8
or as soon as administratively practicable preceding the date of the
distribution. Notwithstanding the foregoing, if a Participant dies before
receiving a distribution of his or her vested Account, his or her Beneficiary
will receive a death benefit, as determined under Section 7.3, below.
7.3. Death Benefit. If a Participant dies before receiving a distribution
of his or her vested Account, the Participant's Beneficiary will receive a death
benefit, in lieu of the retirement benefit, equal to the undistributed balance
in the Participant's Account. The Participant's Account shall be valued as of
the Valuation Date coinciding with or as soon as administratively practicable
preceding the date of the distribution.
7.4. Beneficiary Designation.
7.4.1. A Participant's death benefit will be paid to the Beneficiary
designated by the Participant under the Qualified Plan unless the Participant
makes a separate Beneficiary designation under this Plan. A Participant may
designate and from time to time change the designation of one or more
Beneficiaries or contingent Beneficiaries to receive any death benefit. The
designation and consent will be on a form supplied by the Plan Administrator.
All records of Beneficiary designations will be maintained by the Plan
Administrator.
7.4.2. In the event that the Participant fails to designate a Beneficiary
under both the Qualified Plan and this Plan, or in the event that the
Participant is predeceased by all designated primary and contingent
Beneficiaries under the Qualified Plan and this Plan, (a) if the Participant is
survived by a spouse, the death benefit will be payable to the Participant's
surviving spouse who will be deemed to be the Participant's designated
Beneficiary for all purposes under this Plan, or (b) if the Participant is not
survived by a spouse, the death benefit will be payable to the Participant's
estate.
7.5. In-Service Distributions due to Unforeseeable Emergency. A Participant
may apply for and receive an early payment of any or all vested amounts held in
the Account of such Participant upon an Unforeseeable Emergency. Provided,
however, that the amount which may be distributed to a Participant as the result
of an Unforseeable Emergency may not to exceed the least of (i) the amount
credited to such Participant's Account, (ii) the amount requested by the
Participant, or (iii) the amount determined by the Plan Administrator as being
reasonably necessary to satisfy the need created by the Unforseeable Emergency,
plus amounts necessary to pay taxes reasonably anticipated as a result of the
distribution, after taking into account the extent to which such need is or may
be relieved through reimbursement or compensation by insurance or otherwise or
by liquidation of the Participant's assets (to the extent the liquidation of
such assets would not itself cause severe financial hardship). Distributions
under this Section will be deemed to be made as of the Valuation Date coinciding
with or as soon as administratively practicable preceding the date of
distribution and will be charged against a Participant's Account in such manner
as the Plan Administrator determines. A Participant who has received a
distribution from this Plan pursuant to this Section 7.5. will not be eligible
to make any Supplemental Savings Contributions or be credited with any
Supplemental Matching Contributions for 12 months after the distribution.
7.6. Distributions on a Specified Date. A Participant may file a request
for payment of all or a portion of the Participant's Account on a date specified
by the Participant. Such a request may be made with respect to the portion of
the Participant's Account attributable to the Supplemental Savings Contributions
9
and Supplemental Matching Contributions for each Plan Year. The request must be
made on the Participant's Enrollment and Change Designation and filed with the
Plan Administrator by the Election Date for the Plan Year and, once made, may
not be revoked except in accordance with the provisions of this Plan or the
Treasury Regulations.
7.7. Withholding. The Employer may withhold from payments due under the
Plan any and all taxes of any nature required by any government to be withheld.
Section 8. The Plan Administrator.
8.1. Plan Administrator. The Plan Administrator will interpret the Plan and
determine in its sole and absolute discretion all questions arising in the
administration, interpretation and application of the Plan and the amount of
benefits payable thereunder. The Plan Administrator's interpretations and
determinations will be final and binding on all persons absent fraud or the
arbitrary and capricious abuse of the wide discretion granted to the Plan
Administrator. The Plan Administrator will provide the Trustee with instructions
regarding payments of benefits. The Plan Administrator will provide directions
to the Trustee with respect to the declaration of Valuation Dates and all other
matters when called for in the Plan or requested by the Trustee. The Plan
Administrator may waive any period of notice required under the Plan. The Plan
Administrator will provide procedures for the determination of claims for
benefits.
8.2. Engagement of Assistants and Advisors. The Plan Administrator will
have the right to hire such professional assistants and consultants as it, in
its sole discretion, deems necessary or advisable. To the extent that the costs
for such assistants and advisors are not paid or reimbursed from the Trust Fund,
they will be paid by the Employer.
8.3. Compensation. All expenses of the Plan Administrator will be paid or
reimbursed by the Trust Fund, and if not so paid or reimbursed will be paid by
the Employer.
8.4. Indemnification of the Plan Administrator. The Plan Administrator will
be indemnified by the Employer against costs, expenses and liabilities
(including reasonable attorneys' fees but excluding amounts paid in settlements
to which the Employer does not consent) reasonably incurred by him or her in
connection with any action or investigation to which he or she may be a party by
reason of his or her service as Plan Administrator, except in relation to
matters as to which he or she may be adjudged in such action to be personally
guilty of willful misconduct in the performance of his or her duties. The
foregoing right to indemnification will be in addition to such other rights as
the Plan Administrator may enjoy as a matter of law, under the Company's
Certificate of Incorporation or By-Laws or by reason of insurance coverage of
any kind, or otherwise. Service as an Plan Administrator will be deemed in
partial fulfillment of the member's function as an Eligible Person, officer
and/or director of the Employer, if he or she serves in such capacity as well.
No amendment of this Section diminishing the right to indemnification provided
herein will apply to any action or investigation commenced prior to the adoption
of such amendment.
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Section 9. Authority and Responsibilities of the Company. The Board of
Directors of the Company will have the following authority and responsibility:
(a) To appoint the Trustee and the Plan Administrator and to monitor
each of their performances;
(b) To communicate such information to the Plan Administrator and to
the Trustee as each needs for the proper performance of its duties; and
(c) To perform such duties as imposed by applicable law and to serve
as the Plan Administrator in the absence of an appointed Plan
Administrator.
Section 10. Claims Procedures.
10.1 Claims. Any claim for benefits not received upon termination of
employment shall be made in writing to the Plan Administrator. The Plan
Administrator will handle claims in accordance with the following provisions:
10.1.1. General Rule. If a claim is wholly or partially denied, the Plan
Administrator shall notify the Participant or Beneficiary claimant, in
accordance with paragraph (c) of this Section, of the Plan's adverse benefit
determination within a reasonable period of time, but not later than 90 days
after receipt of the claim by the Plan, unless the Plan Administrator determines
that special circumstances require an extension of time for processing the
claim. If the Plan Administrator determines that an extension of time for
processing is required, written notice of the extension shall be furnished to
the Participant or Beneficiary claimant prior to the termination of the initial
90-day period. In no event shall such extension exceed a period of 90 days from
the end of such initial period. The extension notice shall indicate the special
circumstances requiring an extension of time and the date by which the Plan
expects to render the benefit determination.
10.1.2. Calculating Time Periods. For purposes of this Section 10.1, the
period of time within which a benefit determination is required to be made shall
begin at the time a claim is filed in accordance with the Plan's claim
procedures, without regard to whether all the information necessary to make a
benefit determination accompanies the filing.
10.1.3. Manner and Content of Notification of Benefit Determination. The
Plan Administrator shall provide a Participant or Beneficiary claimant with
written notification of any adverse benefit determination. The notification
shall set forth, in a manner calculated to be understood by the Participant or
Beneficiary claimant--
(a) The specific reason or reasons for the adverse determination;
(b) Reference to the specific Plan provisions on which the
determination is based;
(c) A description of any additional material or information necessary
for the Participant or Beneficiary claimant to perfect the claim and an
explanation of why such material or information is necessary;
11
(d) A description of the Plan's review procedures as described in
Section 9.2 and the time limits applicable to such procedures, including a
statement of the Participant or Beneficiary claimant's right to bring a
civil action under Section 502(a) of ERISA following an adverse benefit
determination on review.
10.2 Appeal of Adverse Benefit Determinations. Within 60 days after the
receipt from the Plan Administrator of any written denial of a claim for
benefits (including denial of an application for a withdrawal), a Participant or
Beneficiary whose claim is denied may request, by written application to the
Plan Administrator, a review by the Plan Administrator of the decision denying
the payment of benefits.
10.2.1. Submission of Additional Information. In connection with an appeal
of an adverse benefit determination under this Section 10.2, a Participant or
Beneficiary shall be entitled to submit written comments, documents, records,
and other information relating to the claim for benefits. Review of an appeal
under this Section 10.2 shall take into account all comments, documents,
records, and other information submitted by the Participant or Beneficiary
relating to the claim, without regard to whether such information was submitted
or considered in the initial benefit determination.
(a) Review of Relevant Information. The Participant or Beneficiary
shall also be provided, upon request and free of charge, reasonable access
to, and copies of, all documents, records, and other information relevant
to the Participant or Beneficiary's claim for benefits. For purposes of
this Section, the determination of whether a document, record, or other
information shall be considered "relevant" shall be made in accordance with
the definition in Section 10.4.3.
10.3 Notification of Benefit Determination on Review.
10.3.1. Manner and Content of Notification of Benefit Determination on
Review. The Plan Administrator shall provide a Participant or Beneficiary
claimant with written notification of the Plan's benefit determination on
review. In the case of an adverse benefit determination, the notification shall
set forth, in a manner calculated to be understood by the Participant or
Beneficiary claimant:
(a) The specific reason or reasons for the adverse determination;
(b) Reference to the specific plan provisions on which the
determination is based;
(c) A statement that the claimant is entitled to receive, upon request
and free of charge, reasonable access to, and copies of, all documents,
records, and other information relevant to the claimant's claim for
benefits. For purposes of this Section, determination of whether documents,
records, and other information shall be considered "relevant" shall be made
in accordance with the definition provided in Section 10.4.3;
(d) A statement of the Participant or Beneficiary claimant's right to
bring a civil action under Section 502(a) of ERISA.
12
10.3.2. Timing of Notification of Benefit Determination on Review.
(a) General Rule. Except as provided in paragraph (b) of this Section,
the Plan Administrator shall notify a Participant or Beneficiary claimant
in accordance with paragraph (a) of this Section of the Plan's benefit
determination on review within a reasonable period of time, but not later
than 60 days after receipt of the claimant's request for review by the
Plan, unless the Plan Administrator determines that special circumstances
require an extension of time for processing the claim. If the Plan
Administrator determines that an extension of time for processing is
required, written notice of the extension shall be furnished to the
claimant prior to the termination of the initial 60-day period. In no event
shall such extension exceed a period of 60 days from the end of the initial
period. The extension notice shall indicate the special circumstances
requiring an extension of time and the date by which the Plan expects to
render the determination on review.
(b) Special Rule in Case of a Committee Serving as Plan Administrator.
In the event that the Company has designated more than one person to serve
by committee as Plan Administrator, and the committee serving as Plan
Administrator holds regularly scheduled meetings at least quarterly,
paragraph (a) of this Section shall not apply, and the Plan Administrator
shall instead make a benefit determination no later than the date of the
meeting of the committee that immediately follows the Plan's receipt of a
request for review, unless the request for review is filed within 30 days
preceding the date of such meeting. In such case, a benefit determination
may be made no later than the date of the second meeting following the
Plan's receipt of the request for review. If special circumstances require
further extension of time for processing, a benefit determination shall be
rendered not later than the third meeting of the committee following the
Plan's receipt of the request for review. If such an extension of time for
review is required because of special circumstances, the Plan Administrator
shall provide the claimant with written notice of the extension, describing
the special circumstances and the date as of which the benefit
determination will be made, prior to the commencement of the extension. The
Plan Administrator shall notify the claimant, in accordance with paragraph
(a) of this Section, of the benefit determination as soon as possible, but
no later than 5 days after the benefit determination is made.
(c) Calculating Time Periods. For purposes of this Section 10.3, the
period of time within which a benefit determination on review is required
to be made shall begin at the time an appeal is filed in accordance with
the reasonable procedures of a Plan, without regard to whether all the
information necessary to make a benefit determination on review accompanies
the filing. In the event that a period of time is extended as permitted
pursuant to paragraph (a) or (b) of this Section due to a claimant's
failure to submit information necessary to decide a claim, the period for
making the benefit determination on review shall be tolled from the date on
which the notification of the extension is sent to the claimant until the
date on which the claimant responds to the request for additional
information.
10.4 Definitions. For purposes of Section 10, the following terms shall be
defined as follows:
10.4.1. Adverse benefit determination. "Adverse benefit determination"
means any of the following: a denial, reduction, or termination of, or a failure
13
to provide or make payment (in whole or in part) for, a benefit, including any
such denial, reduction, termination, or failure to provide or make payment that
is based on a determination of a Participant's or Beneficiary's eligibility to
participate in the Plan.
10.4.2. Notice or notification. "Notice" or "Notification" means the
delivery or furnishing of information to an individual in a manner that
satisfies the standards of 29 CFR 2520.104b-1(b) as appropriate with respect to
material required to be furnished or made available to an individual.
10.4.3. Relevant. A document, record or other information shall be
considered "relevant" to the Participant or Beneficiary's claim if such
document, record or other information:
(a) was relied upon in making the benefit determination;
(b) was submitted, considered, or generated in the course of making
the benefit determination, without regard to whether such document, record,
or other information was relied upon in making the benefit determination;
and
(c) demonstrates compliance with the administrative processes and
safeguards designed to ensure and to verify that benefit claim
determinations are made in accordance with the Plan and that, where
appropriate, the Plan provisions have been applied consistently with
respect to similarly situated Participants or Beneficiaries.
Section 11. Amendment, Termination, Mergers and Consolidations.
11.1. Amendment. The provisions of this Plan may be amended at any time and
from time to time by the Company; provided, however, that:
11.1.1. No amendment will increase the duties or liabilities of the
Trustee without the consent of the Trustee.
11.1.2. No amendment will decrease the vested balance in any Account.
11.1.3. No amendment shall adversely impact the Participants' rights
to receive payment under the Plan with respect to vested Participant
Accounts.
11.1.4. No amendment will decrease any Participant's vested percentage
of his or her Account.
11.2. Termination. While it is the Company's intention to continue the Plan
indefinitely in operation, the Company nevertheless reserves the right to
terminate the Plan in whole or in part. On termination of the Plan, the Trustee
will pay over to each Participant (and deferred vested former Participant) the
value of his or her vested Account, and thereupon dissolve the Trust Fund.
11.3. Permanent Discontinuance of Contributions. The Company reserves the
right at any time to permanently suspend or discontinue all Employer
contributions.
14
Section 12. Participating Employers.
12.1. Adoption by Other Corporations. With the consent of the Board of
Directors, any Affiliate may adopt this Plan and all of the provisions hereof as
to all or any category of its Eligible Persons, as a participating Employer, by
a properly executed document evidencing the intent and will of the board of
directors of the other corporation.
12.2. Requirements of Participating Employers. Each participating Employer
will be required to use the same Trustee and Trust Agreement as provided in this
Plan, and the Trustee will commingle, hold and invest as the Trust Fund all
contributions made by participating Employers, as well as all increments
thereof.
12.3. Designation of Agent. With respect to all relations with the Trustee
and Plan Administrator, each participating Employer will be deemed to have
irrevocably designated the Company as its agent.
12.4. Eligible Person Transfers. If an Eligible Person is transferred
between Employers, the Eligible Person involved will carry with him or her the
Eligible Person's accumulated service and eligibility, no such transfer will
effect a Separation Date hereunder, and the participating Employer to which the
Eligible Person is transferred will thereupon become obligated with respect to
such Eligible Person in the same manner as was the participating Employer from
whom the Eligible Person was transferred.
12.5. Discontinuance of Participation. Any participating Employer may
discontinue or revoke its participation in the Plan. At the time of any such
discontinuance or revocation, satisfactory evidence thereof and of any
applicable conditions imposed will be delivered to the Trustee.
12.6. Plan Administrator's Authority. The Plan Administrator will have
discretionary authority to make any and all necessary rules or regulations,
binding upon all participating Employers and all Participants, to effectuate the
purposes of the Plan.
Section 13. Miscellaneous Provisions.
13.1. Nonalienation of Benefits. None of the payments, benefits, or rights
of any Participant or Beneficiary will be subject to any claim of any creditor
of such Participant or Beneficiary, and, to the fullest extent permitted by law,
all such payments, benefits, and rights will be free from attachment,
garnishment, or any other legal or equitable process available to any creditor
of such Participant or Beneficiary. No Participant or Beneficiary will have the
right to alienate, anticipate, commute, pledge, encumber, or assign any of the
benefits or payments which he or she may expect to receive, contingently or
otherwise, under the Plan, except the right to designate a Beneficiary.
13.2. No Contract of Employment. All benefits created by the Plan
constitute a voluntary act on the part of the Employer and are not to be deemed
or construed to be a part of any contract of employment. Neither the action of
the Employer in establishing the Plan nor any action hereafter taken by the
15
Employer or the Plan Administrator will be construed as giving to any Eligible
Person a right to be retained in the service of the Employer or any right or
claim to any benefits under the Plan except as expressly provided in the Plan.
13.3. Severability. If any provision of this Plan is held invalid or
unenforceable, such invalidity or unenforceability will not affect any other
provision hereof, and this Plan will be construed and enforced as if such
invalid or unenforceable provision had not been included.
13.4. Successors. This Plan will be binding upon the heirs, executors,
administrators, personal representatives, successors, and assigns of the
parties, including each Participant and Beneficiary, present and future.
13.5. Captions. The headings and captions herein are provided for
convenience only, will not be considered a part of the Plan, and will not be
employed in the construction of the Plan.
13.6. Gender and Number. Except where otherwise clearly indicated by
context, the masculine gender will include the feminine gender, the singular
will include the plural, and vice versa.
13.7. Controlling Law. This Plan will be construed and enforced according
to the laws of the State of Tennessee to the extent not preempted by federal
law, which will otherwise control. This Plan is intended to comply with the
requirements of Section 409A of the Code, and shall be interpreted in accordance
with such intent.
13.8. Title to Assets. No Participant or Beneficiary will have any right
to, or interest in, any assets of the Trust Fund, upon termination of his or her
employment or otherwise. The Employer will remain primarily liable to pay
benefits under the Plan. However, the Employer's liability under the Plan will
be reduced or offset to the extent benefit payments are made from the Trust
Fund. The provisions of the Trust Fund are incorporated by reference.
13.9. Payments to Minors, Etc. Any benefit payable to or for the benefit of
a minor, an incompetent person or other person incapable of receipting therefore
will be deemed paid when paid to such person's guardian, to a trustee holding
assets for such person or to the party providing, or reasonably appearing to
provide, for the care of such person, and such payments will fully discharge the
Trustee, the Plan Administrator, the Employer and all other parties with respect
thereto.
13.10. Acknowledgments. The Participants specifically understand and
acknowledge that the value of the Accounts may increase or decrease and that any
such decrease will reduce the benefits payable under this Plan.
13.11. Entire Agreement; Successors. This Plan, including any election
agreements and any amendments thereto, will constitute the entire agreement
between the Company and the Participant with respect to the amounts payable
under the Plan. No oral statement regarding the Plan may be relied upon by the
Participant. This Plan and any amendment will be binding on the parties thereto
16
and their respective heirs, administrators, trustees, successors and assigns,
and on all Beneficiaries. By becoming a Participant, each Eligible Person will
be conclusively deemed to have assented to the provisions of the Plan and the
Trust Agreement and to any amendments thereto.
13.12. Tax Effects. None of the Employer, the Plan Administrator, and any
firm, person, or corporation, represents or guarantees that any particular
federal, state or local tax consequences will occur as a result of any
Participant's participation in this Plan. Each
Participant should consult with his or her own advisors regarding the tax
consequences of participation in this Plan.
CBRL Group, Inc.
By:
---------------------------------------
Title:
------------------------------------
17
CBRL GROUP, INC.
NON-QUALIFIED SAVINGS PLAN
EXHIBIT A
ELIGIBLE EMPLOYEES
In accordance with Section 1 of this Plan Document, employees who are members of
a select group of management or highly compensated employees and who either (i)
were eligible to participate in the Prior Plan immediately prior to the
Effective Date, or (ii) are employed by the Employer in a category of employment
designated below shall be eligible for participation in the Plan. In all cases,
however, the Committee shall have final authority and discretion to determine
those positions and employees who will be eligible to participate in the Plan,
regardless whether such positions or employees are listed below.
CBRL GROUP CRACKER BARREL LOGAN'S ROADHOUSE
- ---------- -------------- -----------------
All officers and MIP employees All officers, MIP employees, District All officers, Senior Directors,
Managers, and General Managers Directors and Regional Managers
ALTERNATIVE REPORTING AND DISCLOSURE STATEMENT
FOR PENSION PLANS FOR CERTAIN SELECTED EMPLOYEES
------------------------------------------------
To the Secretary of Labor:
In compliance with the requirements of the alternative method of reporting
and disclosure under Part 1 of Title I of the Employee Retirement Income
Security Act of 1974 for unfunded or insured pension plans for a select group of
management or highly compensated employees, specified in Department of Labor
Regulations, 29 C.F.R. ss.2520.104-23, the following information is provided by
the undersigned employer.
Name and Address of Employer: CBRL Group, Inc.
----------------
P. O. Box 787
-------------
Lebanon, TN 37085-0787
-----------------------
Employer Identification Number: 62-1749513
----------
CBRL Group, Inc. maintains plans primarily for the purpose of providing
deferred compensation for a select group of management or highly compensated
employees.
Number of Plans and
Participants in Each
Plan: 2 Plans covering 9 and 1,000 Employees, respectively.
- - -----
Dated: ___________, 2005.
CBRL Group, Inc.
By
-------------------------------
Title: Assistant Secretary
--------------------------
This form should be mailed to:
Top Hat Plan Exemption
Pension and Welfare Benefits Administration
Room N-5644
U.S. Department of Labor
200 Constitution Avenue, NW
Washington, DC 20210
(Send certified mail to evidence filing requirement satisfied)