The Robert Mondavi Corporation
Deferred Compensation Plan
Master Plan Document
Effective October 1, 1996
The Robert Mondavi Corporation
Deferred Compensation Plan
Master Plan Document
9/26/96 1
TABLE OF CONTENTS
Page
Purpose...........................................................................................................1
ARTICLE 1.........................................................................................................1
ARTICLE 2.........................................................................................................7
2.1 Selection by Committee....................................................................................7
2.2 Enrollment Requirements...................................................................................7
2.3 Eligibility; Commencement of Participation................................................................7
2.4 Termination of Participation and/or Deferrals.............................................................8
ARTICLE 3.........................................................................................................8
3.1 Minimum Deferral..........................................................................................8
3.2 Maximum Deferral..........................................................................................9
3.3 Election to Defer; Effect of Election Form................................................................9
3.4 Withholding of Deferral Amounts...........................................................................9
3.5 Interest Crediting Prior to Distribution..................................................................9
3.6 Interest Crediting for Installment Distributions.........................................................10
3.7 FICA and Other Taxes.....................................................................................10
3.8 Annual Company Contribution Amount.......................................................................11
3.9 Vesting..................................................................................................11
ARTICLE 4........................................................................................................11
4.1 Short-Term Payout........................................................................................11
4.2 Other Benefits Take Precedence Over Short-Term Payout....................................................12
4.3 Withdrawal Payout/Suspensions for Unforeseeable Financial Emergencies....................................12
4.4 Withdrawal Election......................................................................................12
ARTICLE 5........................................................................................................12
5.1 Retirement Benefit.......................................................................................12
5.2 Payment of Retirement Benefit............................................................................12
5.3 Death Prior to Completion of Retirement Benefit..........................................................13
ARTICLE 6........................................................................................................13
6.1 Pre-Retirement Survivor Benefit..........................................................................13
6.2 Payment of Pre-Retirement Survivor Benefit...............................................................13
ARTICLE 7........................................................................................................14
7.1 Termination Benefit......................................................................................14
7.2 Payment of Termination Benefit...........................................................................14
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Deferred Compensation Plan
Master Plan Document
ARTICLE 8........................................................................................................14
8.1 Continued Eligibility; Disability Benefit................................................................14
ARTICLE 9........................................................................................................15
9.1 Beneficiary..............................................................................................15
9.2 Beneficiary Designation; Change; Spousal Consent.........................................................15
9.3 Acknowledgment...........................................................................................15
9.4 No Beneficiary Designation...............................................................................15
9.5 Doubt as to Beneficiary..................................................................................15
9.6 Discharge of Obligations.................................................................................15
ARTICLE 10.......................................................................................................16
10.1 Paid Leave of Absence...................................................................................16
10.2 Unpaid Leave of Absence.................................................................................16
ARTICLE 11.......................................................................................................16
11.1 Termination.............................................................................................16
11.2 Amendment...............................................................................................17
11.3 Plan Agreement..........................................................................................17
11.4 Interest Rate in the Event of a Change in Control.......................................................17
11.5 Effect of Payment.......................................................................................17
ARTICLE 12.......................................................................................................18
12.1 Committee Duties........................................................................................18
12.2 Agents..................................................................................................18
12.3 Binding Effect of Decisions.............................................................................18
12.4 Indemnity of Committee..................................................................................18
12.5 Employer Information....................................................................................18
ARTICLE 13.......................................................................................................19
13.1 Coordination with Other Benefits........................................................................19
ARTICLE 14.......................................................................................................19
14.1 Presentation of Claim...................................................................................19
14.2 Notification of Decision................................................................................19
14.3 Review of a Denied Claim................................................................................20
14.4 Decision on Review......................................................................................20
14.5 Legal Action............................................................................................21
14.6 Attorney's Fees.........................................................................................21
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Deferred Compensation Plan
Master Plan Document
ARTICLE 15.......................................................................................................21
15.1 Establishment of the Trust..............................................................................21
15.2 Interrelationship of the Plan and the Trust.............................................................21
15.3 Distributions From the Trust............................................................................22
ARTICLE 16.......................................................................................................22
16.1 Status of Plan..........................................................................................22
16.2 Unsecured General Creditor..............................................................................22
16.3 Employer's Liability....................................................................................22
16.4 Nonassignability........................................................................................22
16.5 Not a Contract of Employment............................................................................23
16.6 Furnishing Information..................................................................................23
16.7 Terms...................................................................................................23
16.8 Captions................................................................................................23
16.9 Governing Law...........................................................................................23
16.10 Notice.................................................................................................23
16.11 Successors.............................................................................................24
16.12 Spouse's Interest......................................................................................24
16.13 Validity...............................................................................................24
16.14 Incompetent............................................................................................24
16.15 Court Order............................................................................................24
16.16 Distribution in the Event of Taxation..................................................................25
16.17 Insurance..............................................................................................25
16.18 Legal Fees To Enforce Rights After Change in Control...................................................25
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The Robert Mondavi Corporation
Deferred Compensation Plan
Master Plan Document
THE ROBERT MONDAVI CORPORATION
DEFERRED COMPENSATION PLAN
Effective October 1, 1996
Purpose
The purpose of this Plan is to provide specified benefits to a select group
of management, highly compensated Employees who contribute materially to the
continued growth, development and future business success of The Robert Mondavi
Corporation, a California corporation, and its subsidiaries, if any, that
sponsor this Plan. This Plan shall be unfunded for tax purposes and for purposes
of Title I of ERISA.
ARTICLE 1
Definitions
For purposes of this Plan, unless otherwise clearly apparent from the
context, the following phrases or terms shall have the following indicated
meanings:
1.1 "Account Balance" shall mean (i) the Deferral Account balance plus (ii) the
vested Company Contribution Account balance. The Account Balance shall be a
bookkeeping entry only and shall be utilized solely as a device for the
measurement and determination of the amounts to be paid to a Participant,
or his or her designated Beneficiary, pursuant to this Plan.
1.2 "Annual Company Contribution Amount" shall mean, for any one Plan Year, the
amount determined in accordance with Section 3.8.
1.3 "Annual Bonus" shall mean any compensation, in addition to Base Annual
Salary, paid annually to a Participant as an Employee under any Employer's
annual bonus and incentive programs. Annual Bonus for any Plan Year need
not be paid during such Plan Year.
1.4 "Annual Deferral Amount" shall mean that portion of a Participant's Base
Annual Salary, and Annual Bonus that a Participant elects to have, and is,
deferred in accordance with Article 3, for any one Plan Year. In the event
of a Participant's Retirement, Disability (if deferrals cease in accordance
with Section 8.1), death or a Termination of Employment prior to the end of
a Plan Year, such year's Annual Deferral Amount shall be the actual amount
withheld prior to such event.
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The Robert Mondavi Corporation
Deferred Compensation Plan
Master Plan Document
1.5 "Base Annual Salary" shall mean the wage or salary paid to a participant
during a Plan Year and any deferrals made to the Robert Mondavi 401(k) Plan
during the Plan Year.
1.6 "Beneficiary" shall mean one or more persons, trusts, estates or other
entities, designated in accordance with Article 9, that are entitled to
receive benefits under this Plan upon the death of a Participant.
1.7 "Beneficiary Designation Form" shall mean the form established from time to
time by the Committee that a Participant completes, signs and returns to
the Committee to designate one or more Beneficiaries.
1.8 "Board" shall mean the board of directors of the Company.
1.9 "Base Rate" shall mean, for each Plan Year, an interest rate, stated as an
annual rate, determined and announced by the Committee before the Plan Year
for which it is to be used that is equal to the applicable "Moody's Rate."
The Moody's Rate for a Plan Year shall be an interest rate, stated as an
annual rate, that (i) is published in Moody's Bond Record under the heading
of "Moody's Corporate Bond Yield Averages--Av. Corp," and (ii) is equal to
the average corporate bond yield calculated for the month of September that
immediately precedes the Plan Year for which the rate is to be used.
1.10 "Change in Control" shall mean the first to occur of any of the following
events:
(a) Any "person" (as that term is used in Section 13(d)(3) and 14(d)(2) of
the Securities Exchange Act of 1934) ("Exchange Act"), other than
Robert G. Mondavi, the issue of Robert G. Mondavi and Majorie Mondavi,
and any entity with respect to which Robert G. Mondavi or such issue
have investment or dispositive power or authority ("Mondavi"), after
the Effective Date, has beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of 50% or more of the
Company's outstanding Class A Common Stock or 20% or more of either
(i) the combined voting power of the then outstanding shares of common
stock of the Company (the "Outstanding Company Common Stock") or (ii)
the combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors
(the "Outstanding Company Voting Securities"); provided, however that
for purposes of this subsection (a), the following acquisitions of
securities shall not constitute a Change in Control: (1) any
acquisitions directly from the Company; (2) any acquisition by the
Company, including any acquisition which, by reducing the number of
shares outstanding, is the sole cause for increasing the percentage of
shares beneficially owned by any such Person to more than the
applicable percentage set forth above; (3) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by
the Company or by any corporation controlled by the Company; or (4)
any acquisition by any corporation pursuant to a transaction which
complies with clauses (i), (ii) and (iii) of Section 1.10(c); or
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The Robert Mondavi Corporation
Deferred Compensation Plan
Master Plan Document
(b) Individuals who, as of the Effective Date, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming
a director subsequent to the Effective Date whose election, or
nomination for election by the Company's shareholders, was approved by
a vote of at least three-quarters of the directors then comprising the
Incumbent Board, shall be considered as though such individual were a
member of Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an
actual or threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board;
or
(c) Consummation by the Company of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all
of the assets of the Company or acquisition of assets of another
corporation (a "Business Combination"), in each case, unless,
following such Business Combination, (i) all or substantially all of
the individuals and entitles who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more
than 50% of, respectively, the then outstanding shares of common stock
and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation which as a
result of such transaction owns the Company or all of substantially
all of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination, of the
Outstanding Company Common Stock and the Outstanding Company Voting
Securities, as the case may be, (ii) no Person (excluding any employee
benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly
or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding
voting securities of such corporation except to the extent that such
ownership existed prior to the Business Combination and (iii) at least
a majority of the members of the board of directors of the corporation
resulting from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination; or
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Deferred Compensation Plan
Master Plan Document
(d) Approval by the shareholders of the Company of a complete liquidation
or dissolution of the Company.
1.11 "Claimant" shall have the meaning set forth in Section 14.1.
1.12 "Code" shall mean the Internal Revenue Code of 1986, as it may be amended
from time to time.
1.13 "Committee" shall mean the committee described in Article 12.
1.14 "Company" shall mean The Robert Mondavi Corporation, a California
corporation, and any successor to all or substantially all of the Company's
assets or business.
1.15 "Company Contribution Account" shall mean (i) the sum of the Participant's
Annual Company Contribution Amounts, plus (ii) interest credited in
accordance with all the applicable interest crediting provisions of this
Plan that relate to the Participant's Company Contribution Account, less
(iii) all distributions made to the Participant or his or her Beneficiary
pursuant to this Plan that relate to the Participant's Company Contribution
Account. This account shall be a bookkeeping entry only and shall be
utilized solely as a device for the measurement and determination of the
amounts to be paid to the Participant, or his or her designated
Beneficiary, pursuant to this Plan.
1.16 "Crediting Rate" shall mean, for each Plan Year, an interest rate that is
the sum of the Base Rate and the Preferred Rate for that Plan Year.
1.17 "Deduction Limitation" shall mean the following described limitation on a
benefit that may otherwise be distributable pursuant to the provisions of
this Plan. Except as otherwise provided, this limitation shall be applied
to all distributions that are "subject to the Deduction Limitation" under
this Plan. If an Employer determines in good faith prior to a Change in
Control that there is a reasonable likelihood that any compensation paid to
a Participant for a taxable year of the Employer would not be deductible by
the Employer solely by reason of the limitation under Code Section 162(m),
then to the extent deemed necessary by the Employer to ensure that the
entire amount of any distribution to the Participant pursuant to this Plan
prior to the Change in Control is deductible, the Employer may defer all or
any portion of a distribution under this Plan. Any amounts deferred
pursuant to this limitation shall continue to be credited with interest in
accordance with Section 3.5 below, even if such amount is an installment
payment. The amounts so deferred and interest thereon shall be distributed
to the Participant or his or her Beneficiary (in the event of the
Participant's death) at the earliest possible date, as determined by the
Employer in good faith, on which the deductibility of compensation paid or
payable to the Participant for the taxable year of the Employer during
which the distribution is made will not be limited by Section 162(m), or if
earlier, the effective date of a Change in Control. Notwithstanding
anything to the contrary in this Plan, the Deduction Limitation shall not
apply to any distributions made after a Change in Control.
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Master Plan Document
1.18 "Deferral Account" shall mean (i) the sum of all of a Participant's Annual
Deferral Amounts, plus (ii) interest credited in accordance with all the
applicable interest crediting provisions of this Plan that relate to the
Participant's Deferral Account, less (iii) all distributions made to the
Participant or his or her Beneficiary pursuant to this Plan that relate to
the Participant's Deferral Account. This account shall be a bookkeeping
entry only and shall be utilized solely as a device for the measurement and
determination of the amounts to be paid to the Participant, or his or her
designated Beneficiary, pursuant to this Plan.
1.19 "Disability" shall mean a period of disability during which a Participant
qualifies for permanent disability benefits under the Participant's
Employer's long-term disability plan, or, if a Participant does not
participate in such a plan, a period of disability during which the
Participant would have qualified for permanent disability benefits under
such a plan had the Participant been a participant in such a plan, as
determined in the sole discretion of the Committee. If the Participant's
Employer does not sponsor such a plan, or discontinues to sponsor such a
plan, Disability shall mean where, because of an injury or sickness, a
Participant cannot perform each of the material duties of his or her
regular occupation, as determined by the Committee in its sole discretion.
1.20 "Disability Benefit" shall mean the benefit set forth in Article 8.
1.21 "Effective Date" shall be October 1, 1996.
1.22 "Election Form" shall mean the form established from time to time by the
Committee that a Participant completes, signs and returns to the Committee
to make an election under the Plan.
1.23 "Employee" shall mean a person who is an employee of any Employer.
1.24 "Employer(s)" shall mean the Company and/or any of its subsidiaries (now in
existence or hereafter formed or acquired) that have been selected by the
Board to participate in the Plan and have adopted the Plan as a sponsor.
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Deferred Compensation Plan
Master Plan Document
1.25 "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time.
1.26 "Participant" shall mean any Employee (i) who is selected to participate in
the Plan, (ii) who elects to participate in the Plan, (iii) who signs a
Plan Agreement, an Election Form and a Beneficiary Designation Form, (iv)
whose signed Plan Agreement, Election Form and Beneficiary Designation Form
are accepted by the Committee, (v) who commences participation in the Plan,
and (vi) whose Plan Agreement has not terminated. A spouse or former spouse
of a Participant shall not be treated as a Participant in the Plan or have
an account balance under the Plan, even if he or she has an interest in the
Participant's benefits under the Plan as a result of applicable law or
property settlements resulting from legal separation or divorce.
1.27 "Plan" shall mean the Company's Deferred Compensation Plan, which shall be
evidenced by this instrument and by each Plan Agreement, as they may be
amended from time to time.
1.28 "Plan Agreement" shall mean a written agreement, as may be amended from
time to time, which is entered into by and between an Employer and a
Participant. Each Plan Agreement executed by a Participant and the
Participant's Employer shall provide for the entire benefit to which such
Participant is entitled to under the Plan, and the Plan Agreement bearing
the latest date of acceptance by the Committee shall govern such
entitlement. The terms of any Plan Agreement may be different for any
Participant, and any Plan Agreement may provide additional benefits not set
forth in the Plan or limit the benefits otherwise provided under the Plan;
provided, however, that any such additional benefits or benefit limitations
must be agreed to by both the Employer and the Participant.
1.29 "Plan Year" shall, for the first Plan Year, begin on October 1, 1996, and
end on December 31, 1996. For each Plan Year thereafter, the Plan Year
shall begin on January 1 of each year and continue through December 31.
1.30 "Preferred Rate" shall mean, for each Plan Year, Twenty percent (20%) of
the Base Rate for that particular Plan Year.
1.31 "Pre-Retirement Survivor Benefit" shall mean the benefit set forth in
Article 6.
1.32 "Retirement", "Retires" or "Retired" shall mean, with respect to an
Employee, severance from employment from all Employers for any reason other
than a leave of absence, death or Disability on or after the earlier of the
attainment of (a) age sixty-five (65) or (b) age fifty-five (55) with five
(5) Years of Service.
1.33 "Retirement Benefit" shall mean the benefit set forth in Article 5.
1.34 "Short-Term Payout" shall mean the payout set forth in Section 4.1.
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Deferred Compensation Plan
Master Plan Document
1.35 "Termination Benefit" shall mean the benefit set forth in Article 7.
1.36 "Termination of Employment" shall mean the severing of employment with all
Employers, voluntarily or involuntarily, for any reason other than
Retirement, Disability, death or an authorized leave of absence.
1.37 "Trust" shall mean the trust established pursuant to that certain Master
Trust Agreement between the Company and the trustee named therein, as
amended from time to time.
1.38 "Unforeseeable Financial Emergency" shall mean an unanticipated emergency
that is caused by an event beyond the control of the Participant that would
result in severe financial hardship to the Participant resulting from (i) a
sudden and unexpected illness or accident of the Participant or a dependent
of the Participant, (ii) a loss of the Participant's property due to
casualty, or (iii) such other extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the Participant, all as
determined in the sole discretion of the Committee.
1.39 "Years of Plan Participation" shall mean the total number of full Plan
Years a Participant has been a Participant in the Plan prior to his or her
Termination of Employment (determined without regard to whether deferral
elections have been made by the Participant for any Plan Year). Any partial
year shall not be counted. Notwithstanding the previous sentence, a
Participant's first Plan Year of participation shall be treated as a full
Plan Year for purposes of this definition, even if it is only a partial
Plan Year of participation.
ARTICLE 2
Selection, Enrollment, Eligibility
2.1 Selection by Committee. Participation in the Plan shall be limited to a
select group of management, and highly compensated Employees of the
Employers, as determined by the Committee, in its sole discretion. From
that group, the Committee shall select, in its sole discretion, Employees
to participate in the Plan.
2.2 Enrollment Requirements. As a condition to participation, each selected
Employee shall complete, execute and return to the Committee a Plan
Agreement, an Election Form and a Beneficiary Designation Form, all within
30 days after he or she is notified of his or her selection. In addition,
the Committee shall establish from time to time such other enrollment
requirements as it determines, in its sole discretion, are necessary.
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2.3 Eligibility; Commencement of Participation. Provided an Employee selected
to participate in the Plan has met all enrollment requirements set forth in
this Plan and required by the Committee, including returning all required
documents to the Committee within the specified time period, that Employee
shall commence participation in the Plan on the first day of the month
following the month in which the Employee completes all enrollment
requirements. If an Employee fails to meet all such requirements within the
required 30 day period, that Employee shall not be eligible to participate
in the Plan until the first day of the Plan Year following the delivery to
and acceptance by the Committee of the required documents.
2.4 Termination of Participation and/or Deferrals. If the Committee determines
in good faith that a Participant no longer qualifies as a member of a
select group of management and highly compensated employees, as membership
in such group is determined in accordance with Sections 201(2), 301(a)(3)
and 401(a)(1) of ERISA, the Committee shall (i) terminate any deferral
election the Participant has made for the Plan Year in which the
Participant's membership status changes, (ii) prevent the Participant from
making future deferral elections and/or (iii) immediately distribute the
Participant's then Account Balance in a lump sum with interest credited at
the Crediting Rate and terminate the Participant's participation in the
Plan.
ARTICLE 3
Deferral Commitments/Interest Crediting/Taxes
3.1 Minimum Deferral.
(a) Minimum. For each Plan Year, a Participant may elect to defer, as his
or her Annual Deferral Amount, one or more of the following forms of
compensation in the following minimum amounts for each deferral
elected:
Minimum
Deferral Amount
-------- ------
Base Annual Salary $2,000
Annual Bonus $2,000
If an election is made for less than stated minimum amounts, or if no
election is made, the amount deferred shall be zero.
(b) Short Plan Year. If a Participant first becomes a Participant after
the first day of a Plan Year, or in the case of the first Plan Year of
the Plan itself, the minimum Base Annual Salary deferral shall be an
amount equal to the minimum set forth above, multiplied by a fraction,
the numerator of which is the number of complete months remaining in
the Plan Year and the denominator of which is 12.
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Deferred Compensation Plan
Master Plan Document
3.2 Maximum Deferral. For each Plan Year, a Participant may elect to defer, as
his or her Annual Deferral Amount, Base Annual Salary and/or Annual Bonus
up to the following maximum percentages for each deferral elected:
Maximum
Deferral Percentage
-------- ----------
Base Annual Salary 100%
Annual Bonus 100%
Notwithstanding the foregoing, if a Participant first becomes a Participant
after the first day of a Plan Year, or in the case of the first Plan Year
of the Plan itself, the maximum Annual Deferral Amount shall be limited to
the amount of compensation not yet earned by the Participant as of the
later of October 1, 1996 or the date the Participant submits a Plan
Agreement and Election Form to the Committee for acceptance.
3.3 Election to Defer; Effect of Election Form.
(a) First Plan Year. In connection with a Participant's commencement of
participation in the Plan, the Participant shall make an irrevocable
deferral election for the Plan Year in which the Participant commences
participation in the Plan, along with such other elections as the
Committee deems necessary or desirable under the Plan. For these
elections to be valid, the Election Form must be completed and signed
by the Participant, timely delivered to the Committee (in accordance
with Section 2.3 above) and accepted by the Committee.
(b) Subsequent Plan Years. For each succeeding Plan Year, an irrevocable
deferral election for that Plan Year, and such other elections as the
Committee deems necessary or desirable under the Plan, shall be made
by timely delivering to the Committee, in accordance with its rules
and procedures before the end of the Plan Year preceding the Plan Year
for which the election is made, a new Election Form. If no Election
Form is timely delivered for a Plan Year, no Annual Deferral Amount
shall be withheld for that Plan Year.
3.4 Withholding of Deferral Amounts. For each Plan Year, the Base Annual Salary
portion of the Annual Deferral Amount shall be withheld from each regularly
scheduled Base Annual Salary payroll in equal amounts, as adjusted from
time to time for increases and decreases in Base Annual Salary. The Annual
Bonus portion of the Annual Deferral Amount shall be withheld at the time
the Annual Bonus are or otherwise would be paid to the Participant.
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Deferred Compensation Plan
Master Plan Document
3.5 Interest Crediting Prior to Distribution. Prior to any distribution of
benefits under Articles 4, 5, 6, 7 or 8, interest shall be credited and
compounded annually on (i) a Participant's Deferral Account as though the
Annual Deferral Amount for that Plan Year was withheld at the beginning of
the Plan Year, and (ii) on a Participant's Company Contribution Account, if
any, from the date on which it was made. However, if a Participant's
commencement of participation in the Plan is other than the first day of
the Plan Year, then interest crediting for the Annual Deferral Amount shall
commence as of the date that the Participant commences participation in the
Plan. The rate of interest for crediting shall be the Crediting Rate,
except as otherwise provided in this Plan, which rate shall be treated as
the nominal rate for crediting interest. In the event of Retirement,
Disability, death or Termination of Employment prior to the end of a Plan
Year, the basis for that year's interest crediting will be a fraction of
the full year's interest, based on the number of full months that the
Participant was employed with the Employer during the Plan Year prior to
the occurrence of such event. If a distribution is made under this Plan,
for purposes of crediting interest up to the time of the distribution, the
Participant's Account Balance shall be reduced as of the first day of the
month in which the distribution is made.
3.6 Interest Crediting for Installment Distributions.
(a) If a Participant's benefits under this Plan are to be paid in
substantially equal monthly installments, such payments shall be
determined by amortizing the Participant's specified benefit over the
number of months elected, using the interest rate specified below and
treating the first installment payment as all principal and each
subsequent installment payment, first as interest accrued for the
applicable installment period on the unpaid Account Balance and second
as a reduction in the Account Balance. Except as provided in Section
3.6(b) below, the interest rate to be used to calculate installment
payment amounts shall be a fixed interest rate that is determined by
averaging the Crediting Rates for the Plan Year in which installment
payments commence and the two (2) preceding Plan Years. This rate
shall be treated as the nominal rate for making such calculations. If
a Participant has completed fewer than three (3) Plan Years, this
average shall be determined using the Base Rates for the Plan Years
during which the Participant participated in the Plan.
3.7 FICA and Other Taxes.
(a) Annual Deferral Amounts. For each Plan Year in which an Annual
Deferral Amount is being withheld from a Participant, the
Participant's Employer(s) shall withhold from that portion of the
Participant's Base Annual Salary and/or Bonus that is not being
deferred, in a manner determined by the Employer(s), the Participant's
share of FICA and other employment taxes. If necessary, the Committee
may reduce the Annual Deferral Amount in order to comply with this
Section 3.7.
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Deferred Compensation Plan
Master Plan Document
(b) Company Contribution Account. When a participant becomes vested in a
portion of his or her Company Contribution Account, the Participant's
Employer(s) shall withhold from the Participant's Base Annual Salary
and/or Bonus that is not deferred, in a manner determined by the
Employer(s), the Participant's share of FICA and other employment
taxes. If necessary, the Committee may reduce the vested portion of
the Participant's Company Contribution Account in order to comply with
this Section 3.7.
(c) Distributions. The Participant's Employer(s), or the trustee of the
Trust, shall withhold from any payments made to a Participant under
this Plan all federal, state and local income, employment and other
taxes required to be withheld by the Employer(s), or the trustee of
the Trust, in connection with such payments, in amounts and in a
manner to be determined in the sole discretion of the Employer(s) and
the trustee of the Trust.
3.8 Annual Company Contribution Amount. An Employer, in its sole discretion,
may, but is not required to, credit any amount it desires to any
Participant's Company Contribution Account under this Plan, which amount
shall be for that Participant the Annual Company Contribution Amount for
that Plan Year. The amount so credited to a Participant may be smaller or
larger than the amount credited to any other Participants, and the amount
credited to any Participant for a Plan Year may be zero, even though one or
more other Participants receive an Annual Company Contribution Amount for
that Plan Year.
3.9 Vesting. Except as provided in Sections 7.1, a Participant shall be 100%
vested in his or her Deferral Account and vested in his or her Company
Contribution Account in accordance with such vesting schedule as the
Committee may establish at the time of awarding the Company Contribution.
In the event of a Change in Control, a Participant's Company Contribution
Account shall immediately become 100% vested (if it is not already vested).
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ARTICLE 4
Short-Term Payout; Unforeseeable Financial Emergencies; Withdrawal Election
4.1 Short-Term Payout. In connection with each election to defer an Annual
Deferral Amount, a Participant may irrevocably elect to receive a future
"Short-Term Payout" from the Plan with respect to that Annual Deferral
Amount. Subject to the Deduction Limitation, the Short-Term Payout shall be
a lump sum payment in an amount that is equal to the Annual Deferral Amount
plus interest credited in the manner provided in Section 3.5 above on that
amount, but using the applicable interest rate set forth in Section 7.1
below, determined at the time that the Short-Term Payout becomes payable
(rather than the date of a Termination of Employment). Subject to the
Deduction Limitation and the other terms and conditions of this Plan, each
Short-Term Payout elected shall be paid within 60 days of the first day of
any Plan Year designated by the Participant that is at least 3 years after
the first day of the Plan Year in which the Annual Deferral Amount is
actually deferred.
4.2 Other Benefits Take Precedence Over Short-Term Payout. Should an event
occur that triggers a benefit under Article 5, 6, 7 or 8, any Annual
Deferral Amount, plus interest thereon, that is subject to a Short-Term
Payout election under Section 4.1 shall not be paid in accordance with
Section 4.1, but shall be paid in accordance with the other applicable
Article.
4.3 Withdrawal Payout/Suspensions for Unforeseeable Financial Emergencies. If
the Participant experiences an Unforeseeable Financial Emergency, the
Participant may petition the Committee to (i) suspend any deferrals
required to be made by a Participant and/or (ii) receive a partial or full
payout from the Plan. The payout shall not exceed the lesser of the
Participant's Account Balance, calculated as if such Participant were
receiving a Termination Benefit, or the amount reasonably needed to satisfy
the Unforeseeable Financial Emergency. If, subject to the sole discretion
of the Committee, the petition for a suspension and/or payout is approved,
suspension shall take effect upon the date of approval and any payout shall
be made within 60 days of the date of approval. The payment of any amount
under this Section 4.2 shall not be subject to the Deduction Limitation.
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4.4 Withdrawal Election. A Participant may elect, at any time, to withdraw all
of his or her Account Balance, calculated as if there had occurred a
Termination of Employment as of the day of the election, less a withdrawal
penalty equal to 10% of such amount (the net amount shall be referred to as
the "Withdrawal Amount"). This election can be made at any time before or
after Retirement, Disability, death or Termination of Employment, and
whether or not the Participant (or Beneficiary) is in the process of being
paid pursuant to an installment payment schedule. No partial withdrawals of
the Withdrawal Amount shall be allowed. The Participant (or his or her
Beneficiary) shall make this election by giving the Committee advance
written notice of the election in a form determined from time to time by
the Committee. The Participant (or his or her Beneficiary) shall be paid
the Withdrawal Amount within 60 days of his or her election. Once the
Withdrawal Amount is paid, the Participant's participation in the Plan
shall terminate and the Participant shall not be eligible to participate in
the Plan in the future. The payment of this Withdrawal Amount shall not be
subject to the Deduction Limitation.
ARTICLE 5
Retirement Benefit
5.1 Retirement Benefit. Subject to the Deduction Limitation, a Participant who
Retires shall receive, as a Retirement Benefit, his or her Account Balance.
5.2 Payment of Retirement Benefit. A Participant, in connection with his or her
commencement of participation in the Plan, shall elect on an Election Form
to receive the Retirement Benefit in a lump sum or in substantially equal
monthly payments (the latter determined in accordance with Section 3.6
above) over a period of 60, 120 or 180 months. The Participant may annually
change his or her election to an allowable alternative payout period by
submitting a new Election Form to the Committee, provided that any such
Election Form is submitted at least 2 years prior to the Participant's
Retirement and is accepted by the Committee in its sole discretion. The
Election Form most recently accepted by the Committee shall govern the
payout of the Retirement Benefit. If a Participant does not make any
election with respect to the payment of the Retirement Benefit, then such
benefit shall be payable in a lump sum. The lump sum payment shall be made,
or installment payments shall commence, no later than 60 days after the
date the Participant Retires. Any payment made shall be subject to the
Deduction Limitation.
5.3 Death Prior to Completion of Retirement Benefit. If a Participant dies
after Retirement but before the Retirement Benefit is paid in full, the
Participant's unpaid Retirement Benefit payments shall continue and shall
be paid to the Participant's Beneficiary (a) over the remaining number of
months and in the same amounts as that benefit would have been paid to the
Participant had the Participant survived, or (b) in a lump sum or other
periodic payout, if requested by the Beneficiary and allowed in the sole
discretion of the Committee, that is equal to the Participant's unpaid
remaining Account Balance.
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ARTICLE 6
Pre-Retirement Survivor Benefit
6.1 Pre-Retirement Survivor Benefit. Subject to the Deduction
Limitation, the Participant's Beneficiary shall receive a Pre-Retirement
Survivor Benefit equal to the Participant's Account Balance, if the
Participant dies before he or she Retires, experiences a Termination of
Employment or suffers a Disability,
6.2 Payment of Pre-Retirement Survivor Benefit. A Participant, in connection
with his or her commencement of participation in the Plan, shall elect on
an Election Form whether the Pre-Retirement Survivor Benefit shall be
received by his or her Beneficiary in a lump sum or in substantially equal
monthly payments (the latter determined in accordance with Section 3.6
above) over a period of 60, 120 or 180 months. The Participant may annually
change this election to an allowable alternative payout period by
submitting a new Election Form to the Committee, which form must be
accepted by the Committee in its sole discretion. The Election Form most
recently accepted by the Committee prior to the Participant's death shall
govern the payout of the Participant's Pre-Retirement Survivor Benefit,
unless requested otherwise by the Beneficiary and approved by the
Committee. If a Participant does not make any election with respect to the
payment of the Pre-Retirement Survivor Benefit, then such benefit shall be
paid in a lump sum. Despite the foregoing, if the Participant's Account
Balance at the time of his or her death is less than $25,000, payment of
the Pre-Retirement Survivor Benefit may be made, in the sole discretion of
the Committee, in a lump sum or in monthly installment payments that do not
exceed five years in duration. The lump sum payment shall be made, or
installment payments shall commence, no later than 60 days after the date
the Committee is provided with proof that is satisfactory to the Committee
of the Participant's death. Any payment made shall be subject to the
Deduction Limitation.
ARTICLE 7
Termination Benefit
7.1 Termination Benefit. Subject to the Deduction Limitation, the Participant
shall receive a Termination Benefit, which shall be equal to the
Participant's Account Balance, with interest credited in the manner
provided in Section 3.5 above, but using the applicable interest rate set
forth in the following schedule, if a Participant experiences a Termination
of Employment prior to his or her Retirement, death or Disability:
Completion of Years of Plan Participation Applicable Rate
Less than three years Base Rate
Three or more years Crediting Rate
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7.2 Payment of Termination Benefit. At the time of his or her Termination of
Employment, a Participant's Termination Benefit shall be paid in a lump
sum. The lump sum payment shall be made no later than 60 days after the
date the date of the Participant's Termination of Employment. Any payment
made shall be subject to the Deduction Limitation.
ARTICLE 8
Disability Benefit
8.1 Continued Eligibility; Disability Benefit. A Participant suffering a
Disability shall, for benefit purposes under this Plan, continue to be
considered to be employed, or in the service of an Employer, and shall be
eligible for the benefits provided for in Articles 4, 5, 6 or 7 in
accordance with the provisions of those Articles. Notwithstanding the
above, the Committee shall have the right, in its sole and absolute
discretion and for purposes of this Plan only, and must in the case of a
Participant who is otherwise eligible to Retire, to terminate a
Participant's employment at any time (or in the case of a Participant who
is eligible to Retire, as soon as practical) after such Participant is
determined to be suffering a Disability, in which case the Participant
shall receive a Disability Benefit equal to his or her Account Balance at
the time of the Committee's determination; provided, however, that should
the Participant otherwise have been eligible to Retire, he or she shall be
paid in accordance with Article 5. The Disability Benefit shall be paid in
a lump sum within 60 days of the Committee's exercise of such right. Any
payment made shall be subject to the Deduction Limitation.
ARTICLE 9
Beneficiary Designation
9.1 Beneficiary. Each Participant shall have the right, at any time, to
designate his or her Beneficiary(ies) (both primary as well as contingent)
to receive any benefits payable under the Plan to a beneficiary upon the
death of a Participant. The Beneficiary designated under this Plan may be
the same as or different from the Beneficiary designation under any other
plan of an Employer in which the Participant participates.
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9.2 Beneficiary Designation; Change; Spousal Consent. A Participant shall
designate his or her Beneficiary by completing and signing the Beneficiary
Designation Form, and returning it to the Committee or its designated
agent. A Participant shall have the right to change a Beneficiary by
completing, signing and otherwise complying with the terms of the
Beneficiary Designation Form and the Committee's rules and procedures, as
in effect from time to time. If the Participant names someone other than
his or her spouse as a Beneficiary, a spousal consent, in the form
designated by the Committee, must be signed by that Participant's spouse
and returned to the Committee. Upon the acceptance by the Committee of a
new Beneficiary Designation Form, all Beneficiary designations previously
filed shall be canceled. The Committee shall be entitled to rely on the
last Beneficiary Designation Form filed by the Participant and accepted by
the Committee prior to his or her death.
9.3 Acknowledgment. No designation or change in designation of a Beneficiary
shall be effective until received, accepted and acknowledged in writing by
the Committee or its designated agent.
9.4 No Beneficiary Designation. If a Participant fails to designate a
Beneficiary as provided in Sections 9.1, 9.2 and 9.3 above or, if all
designated Beneficiaries predecease the Participant or die prior to
complete distribution of the Participant's benefits, then the Participant's
designated Beneficiary shall be deemed to be his or her surviving spouse.
If the Participant has no surviving spouse, the benefits remaining under
the Plan to be paid to a Beneficiary shall be payable to the executor or
personal representative of the Participant's estate.
9.5 Doubt as to Beneficiary. If the Committee has any doubt as to the proper
Beneficiary to receive payments pursuant to this Plan, the Committee shall
have the right, exercisable in its discretion, to cause the Participant's
Employer to withhold such payments until this matter is resolved to the
Committee's satisfaction.
9.6 Discharge of Obligations. The payment of benefits under the Plan to a
Beneficiary shall fully and completely discharge all Employers and the
Committee from all further obligations under this Plan with respect to the
Participant, and that Participant's Plan Agreement shall terminate upon
such full payment of benefits.
ARTICLE 10
Leave of Absence
10.1 Paid Leave of Absence. If a Participant is authorized by the Participant's
Employer for any reason to take a paid leave of absence from the employment
of the Employer, the Participant shall continue to be considered employed
by the Employer and the Annual Deferral Amount shall continue to be
withheld during such paid leave of absence in accordance with Section 3.3.
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10.2 Unpaid Leave of Absence. If a Participant is authorized by the
Participant's Employer for any reason to take an unpaid leave of absence
from the employment of the Employer, the Participant shall continue to be
considered employed by the Employer and the Participant shall be excused
from making deferrals until the earlier of the date the leave of absence
expires or the Participant returns to a paid employment status. Upon such
expiration or return, deferrals shall resume for the remaining portion of
the Plan Year in which the expiration or return occurs, based on the
deferral election, if any, made for that Plan Year. If no election was made
for that Plan Year, no deferral shall be withheld.
ARTICLE 11
Termination, Amendment or Modification
11.1 Termination. Although the Employers anticipate that they will continue the
Plan for an indefinite period of time, there is no guarantee that any
Employer will continue the Plan or will not terminate the Plan at any time
in the future. Accordingly, each Employer reserves the right to discontinue
its sponsorship of the Plan and/or to terminate the Plan, at any time, with
respect to its participating Employees by the actions of its board of
directors. Upon the termination of the Plan with respect to any Employer,
the Plan Agreements of the affected Participants who are employed by that
Employer, shall terminate and their Account Balances, determined as if they
had experienced a Termination of Employment on the date of Plan termination
or, if Plan termination occurs after the date upon which a Participant was
eligible to Retire, then with respect to that Participant as if he or she
had Retired on the date of Plan termination, shall be paid to the
Participants as follows. Prior to a Change in Control, an Employer shall
have the right, in its sole discretion, and notwithstanding any elections
made by the Participant, to pay such benefits in a lump sum or in monthly
installments for up to 15 years, with interest credited during the
installment period as provided in Section 3.6. After a Change in Control,
the Employer shall be required to pay such benefits in a lump sum. The
termination of the Plan shall not adversely affect any Participant or
Beneficiary who has become entitled to the payment of any benefits under
the Plan as of the date of termination; provided however, that the Employer
shall have the right to accelerate installment payments by paying the
present value equivalent of such payments, using the Base Rate or Crediting
Rate for the Plan Year in which the termination occurs (depending upon
whether the installment benefit being distributed was credited at the Base
Rate or the Crediting Rate) as the discount rate, in a lump sum or pursuant
to a different payment schedule (provided that, the present value of all
payments that will have been received by a Participant at any given point
in time under the different payment schedule shall equal or exceed the
present value of all payments that would have been received at that point
in time under the original payment schedule).
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11.2 Amendment. The Company may, at any time, amend or modify the Plan in whole
or in part with respect to any or all Employers by the actions of the
Company's board of directors; provided, however, that no amendment or
modification shall be effective to decrease or restrict the value of a
Participant's Account Balance in existence at the time the amendment or
modification is made, calculated as if the Participant had experienced a
Termination of Employment as of the effective date of the amendment or
modification, or, if the amendment or modification occurs after the date
upon which the Participant was eligible to Retire, the Participant had
Retired as of the effective date of the amendment or modification. The
amendment or modification of the Plan shall not affect any Participant or
Beneficiary who has become entitled to the payment of benefits under the
Plan as of the date of the amendment or modification; provided, however,
that the Employer shall have the right to accelerate installment payments
by paying the present value equivalent of such payments, using the Base
Rate or Crediting Rate for the Plan Year of the amendment or modification
depending upon whether the installment benefit being distributed was
credited at the Base Rate or the Crediting Rate, as the discount rate, in a
lump sum or pursuant to a different payment schedule (provided that, the
present value of all payments that will have been received by a Participant
at any given point in time under the different payment schedule shall equal
or exceed the present value of all payments that would have been received
at that point in time under the original payment schedule).
11.3 Plan Agreement. Despite the provisions of Sections 11.1 and 11.2 above, if
a Participant's Plan Agreement contains benefits or limitations that are
not in this Plan document, the Employer may only amend or terminate such
provisions with the consent of the Participant.
11.4 Interest Rate in the Event of a Change in Control. If a Change in Control
occurs, the applicable interest rate to be used in determining a
Participant's benefit in connection with a Termination of Employment after
the Change in Control, or a Plan termination, amendment or modification
under Sections 11.1 and 11.2, shall be the Crediting Rate.
11.5 Effect of Payment. The full payment of the applicable benefit under Section
4.4 or Articles 5, 6, 7 or 8 of the Plan shall completely discharge all
obligations to a Participant and his or her designated Beneficiaries under
this Plan and the Participant's Plan Agreement shall terminate.
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ARTICLE 12
Administration
12.1 Committee Duties. This Plan shall be administered by a Committee which
shall consist of the Board, or such committee (which may be the
Compensation Committee) as the Board shall appoint. Members of the
Committee may be Participants under this Plan. The Committee shall also
have the discretion and authority to (i) make, amend, interpret, and
enforce all appropriate rules and regulations for the administration of
this Plan and (ii) decide or resolve any and all questions including
interpretations of this Plan, as may arise in connection with the Plan. Any
individual serving on the Committee who is a Participant shall not vote or
act on any matter relating solely to himself or herself. When making a
determination or calculation, the Committee shall be entitled to rely on
information furnished by a Participant or the Company.
12.2 Agents. In the administration of this Plan, the Committee may, from time to
time, employ agents and delegate to them such administrative duties as it
sees fit (including acting through a duly appointed representative) and may
from time to time consult with counsel who may be counsel to any Employer.
12.3 Binding Effect of Decisions. The decision or action of the Committee with
respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules
and regulations promulgated hereunder shall be final and conclusive and
binding upon all persons having any interest in the Plan.
12.4 Indemnity of Committee. All Employers shall indemnify and hold harmless the
members of the Committee, and any Employee to whom duties of the Committee
may be delegated, against any and all claims, losses, damages, expenses or
liabilities arising from any action or failure to act with respect to this
Plan, except in the case of willful misconduct by the Committee or any of
its members or any such Employee.
12.5 Employer Information. To enable the Committee to perform its functions,
each Employer shall supply full and timely information to the Committee on
all matters relating to the compensation of its Participants, the date and
circumstances of the Retirement, Disability, death or Termination of
Employment of its Participants, and such other pertinent information as the
Committee may reasonably require.
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ARTICLE 13
Other Benefits and Agreements
13.1 Coordination with Other Benefits. The benefits provided for a Participant
and Participant's Beneficiary under the Plan are in addition to any other
benefits available to such Participant under any other plan or program for
employees of the Participant's Employer. The Plan shall supplement and
shall not supersede, modify or amend any other such plan or program except
as may otherwise be expressly provided.
ARTICLE 14
Claims Procedures
14.1 Presentation of Claim. Any Participant or Beneficiary of a deceased
Participant (such Participant or Beneficiary being referred to below as a
"Claimant") may deliver to the Committee a written claim for a
determination with respect to the amounts distributable to such Claimant
from the Plan. If such a claim relates to the contents of a notice received
by the Claimant, the claim must be made within 60 days after such notice
was received by the Claimant. The claim must state with particularity the
determination desired by the Claimant. All other claims must be made within
180 days of the date on which the event that caused the claim to arise
occurred. The claim must state with particularity the determination desired
by the Claimant.
14.2 Notification of Decision. The Committee shall consider a Claimant's claim
within a reasonable time, and shall notify the Claimant in writing:
(a) that the Claimant's requested determination has been made, and that
the claim has been allowed in full; or
(b) that the Committee has reached a conclusion contrary, in whole or in
part, to the Claimant's requested determination, and such notice must
set forth in a manner calculated to be understood by the Claimant:
(i) the specific reason(s) for the denial of the claim, or any part
of it;
(ii) specific reference(s) to pertinent provisions of the Plan upon
which such denial was based;
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(iii) a description of any additional material or information
necessary for the Claimant to perfect the claim, and an
explanation of why such material or information is necessary; and
(iv) an explanation of the claim review procedure set forth in Section
14.3 below.
14.3 Review of a Denied Claim. Within 60 days after receiving a notice from the
Committee that a claim has been denied, in whole or in part, a Claimant (or
the Claimant's duly authorized representative) may file with the Committee
a written request for a review of the denial of the claim. Thereafter, but
not later than 30 days after the review procedure began, the Claimant (or
the Claimant's duly authorized representative):
(a) may review pertinent documents;
(b) may submit written comments or other documents; and/or
(c) may request a hearing, which the Committee, in its sole discretion,
may grant.
14.4 Decision on Review. The Committee shall render its decision on review
promptly, and not later than 60 days after the filing of a written request
for review of the denial, unless a hearing is held or other special
circumstances require additional time, in which case the Committee's
decision must be rendered within 120 days after such date. Such decision
must be written in a manner calculated to be understood by the Claimant,
and it must contain:
(a) specific reasons for the decision;
(b) specific reference(s) to the pertinent Plan provisions upon which the
decision was based; and
(c) such other matters as the Committee deems relevant.
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14.5 Legal Action. A Claimant's compliance with the foregoing provisions of this
Article 14 is a mandatory prerequisite to a Claimant's right to commence
any legal action with respect to any claim for benefits under this Plan.
Further, neither a Claimant nor the Employer may initiate litigation with
regard to any dispute with respect to this Agreement until after all
remedies set forth in this Subsection 14.5 have been exhausted. In the
event of any dispute arising over this Agreement, a Claimant or an Employer
shall have the right by giving written notice to the other party (the
"Meditation Notice") to initiate non-binding mediation to be conducted by a
mediator mutually agreed to by the parties or, in the event the parties are
unable to reach such agreement within thirty (30) days of the giving of the
Mediation Notice, by a mediator appointed by the American Arbitration
Association ("AAA") in accordance with rules and regulations of the AAA, or
by any other body mutually agreed upon by the parties. Mediation shall take
place at San Francisco, California or any other location mutually agreeable
to the parties. In the event the parties resolve their dispute in
mediation, they shall enter into a mutual written agreement, which shall be
binding on both parties. In the event such agreement has not been entered
into by the parties within ninety (90) days after the selection of the
mediator pursuant to this Subsection 14.5, either party may initiate civil
litigation provided that any such litigation shall take place only in the
Superior Court of Napa County.
14.6 Attorney's Fees. In the event of any breach of this Agreement that results
in litigation between the parties, the prevailing party shall be entitled
to its reasonable attorney's fees, expert witness fees and costs of suit.
The prevailing party shall be determined by the court, based upon an
assessment of which party's major arguments or positions taken in the
proceedings could fairly be said to have prevailed over the other party's
major arguments or positions on major disputed issues in the court's
decision.
ARTICLE 15
Trust
15.1 Establishment of the Trust. The Company shall establish the Trust, and the
Employers shall annually transfer, within 60 days after the start of each
Plan Year, to the Trust such assets as are necessary to provide, on a
present value basis, for their respective future liabilities created with
respect to the Annual Deferral Amounts, Annual Company Contribution Amounts
and interest credits for those amounts for that year.
15.2 Interrelationship of the Plan and the Trust. The provisions of the Plan and
the Plan Agreement shall govern the rights of a Participant to receive
distributions pursuant to the Plan. The provisions of the Trust shall
govern the rights of the Employers, Participants and the creditors of the
Employers to the assets transferred to the Trust. Each Employer shall at
all times remain liable to carry out its obligations under the Plan.
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15.3 Distributions From the Trust. Each Employer's obligations under the Plan
may be satisfied with Trust assets distributed pursuant to the terms of the
Trust, and any such distribution shall reduce the Employer's obligations
under this Agreement.
ARTICLE 16
Miscellaneous
16.1 Status of Plan. The Plan is intended to be a plan that is not qualified
within the meaning of Code Section 401(a) and that "is unfunded and is
maintained by an employer primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated
employees" within the meaning of ERISA Sections 201(2), 301(a)(3) and
401(a)(1). The Plan shall be administered and interpreted to the extent
possible in a manner consistent with that intent.
16.2 Unsecured General Creditor. Participants and their Beneficiaries, heirs,
successors and assigns shall have no legal or equitable rights, interests
or claims in any property or assets of an Employer. For purposes of the
payment of benefits under this Plan, any and all of an Employer's assets
shall be, and remain, the general, unpledged unrestricted assets of the
Employer. An Employer's obligation under the Plan shall be merely that of
an unfunded and unsecured promise to pay money in the future.
16.3 Employer's Liability. An Employer's liability for the payment of benefits
shall be defined only by the Plan and the Plan Agreement, as entered into
between the Employer and a Participant. An Employer shall have no
obligation to a Participant under the Plan except as expressly provided in
the Plan and his or her Plan Agreement.
16.4 Nonassignability. Neither a Participant nor any other person shall have any
right to commute, sell, assign, transfer, pledge, anticipate, mortgage or
otherwise encumber, transfer, hypothecate, alienate or convey in advance of
actual receipt, the amounts, if any, payable hereunder, or any part
thereof, which are, and all rights to which are expressly declared to be,
unassignable and non-transferable. No part of the amounts payable shall,
prior to actual payment, be subject to seizure, attachment, garnishment or
sequestration for the payment of any debts, judgments, alimony or separate
maintenance owed by a Participant or any other person, or be transferable
by operation of law in the event of a Participant's or any other person's
bankruptcy or insolvency.
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16.5 Not a Contract of Employment. The terms and conditions of this Plan shall
not be deemed to constitute a contract of employment between any Employer
and the Participant. Such employment is hereby acknowledged to be an "at
will" employment relationship that can be terminated at any time for any
reason, or no reason, with or without cause, and with or without notice,
except as otherwise provided in a written employment agreement. Nothing in
this Plan shall be deemed to give a Participant the right to be retained in
the service of any Employer, or to interfere with the right of any Employer
to discipline or discharge the Participant at any time.
16.6 Furnishing Information. A Participant or his or her Beneficiary will
cooperate with the Committee by furnishing any and all information
requested by the Committee and take such other actions as may be requested
in order to facilitate the administration of the Plan and the payments of
benefits hereunder, including but not limited to taking such physical
examinations as the Committee may deem necessary.
16.7 Terms. Whenever any words are used herein in the masculine, they shall be
construed as though they were in the feminine in all cases where they would
so apply; and whenever any words are used herein in the singular or in the
plural, they shall be construed as though they were used in the plural or
the singular, as the case may be, in all cases where they would so apply.
16.8 Captions. The captions of the articles, sections and paragraphs of this
Plan are for convenience only and shall not control or affect the meaning
or construction of any of its provisions.
16.9 Governing Law. Subject to ERISA, the provisions of this Plan shall be
construed and interpreted according to the internal laws of the State of
California without regard to its conflicts of laws principles.
16.10 Notice. Any notice or filing required or permitted to be given to the
Committee under this Plan shall be sufficient if delivered in writing, to
the address below:
Mr. Michael Beyer
The Robert Mondavi Corporation
841 Latour Court
Napa, California 94558
Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the
receipt for registration or certification.
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Any notice or filing required or permitted to be given to a Participant
under this Plan shall be sufficient if in writing and hand-delivered, or
sent by mail, to the last known address of the Participant.
16.11 Successors. The provisions of this Plan shall bind and inure to the
benefit of the Participant's Employer and its successors and assigns and
the Participant and the Participant's designated Beneficiaries.
16.12 Spouse's Interest. The interest in the benefits hereunder of a spouse of a
Participant who has predeceased the Participant shall automatically pass to
the Participant and shall not be transferable by such spouse in any manner,
including but not limited to such spouse's will, nor shall such interest
pass under the laws of intestate succession.
16.13 Validity. In case any provision of this Plan shall be illegal or invalid
for any reason, said illegality or invalidity shall not affect the
remaining parts hereof, but this Plan shall be construed and enforced as if
such illegal or invalid provision had never been inserted herein.
16.14 Incompetent. If the Committee determines in its discretion that a benefit
under this Plan is to be paid to a minor, a person declared incompetent or
to a person incapable of handling the disposition of that person's
property, the Committee may direct payment of such benefit to the guardian,
legal representative or person having the care and custody of such minor,
incompetent or incapable person. The Committee may require proof of
minority, incompetency, incapacity or guardianship, as it may deem
appropriate prior to distribution of the benefit. Any payment of a benefit
shall be a payment for the account of the Participant and the Participant's
Beneficiary, as the case may be, and shall be a complete discharge of any
liability under the Plan for such payment amount.
16.15 Court Order. The Committee is authorized to make any payments directed by
court order in any action in which the Plan or the Committee has been named
as a party. In addition, if a court determines that a spouse or former
spouse of a Participant has an interest in the Participant's benefits under
the Plan in connection with a property settlement or otherwise, the
Committee, in its sole discretion, shall have the right, notwithstanding
any election made by a Participant, to immediately distribute the spouse's
or former spouse's interest to that spouse or former spouse.
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The Robert Mondavi Corporation
Deferred Compensation Plan
Master Plan Document
16.16 Distribution in the Event of Taxation.
(a) General. If, for any reason, all or any portion of a Participant's
benefit under this Plan becomes taxable to the Participant prior to
receipt, a Participant may petition the Committee before a Change in
Control, or the trustee of the Trust after a Change in Control, for a
distribution of that portion of his or her benefit that has become
taxable. Upon the grant of such a petition, which grant shall not be
unreasonably withheld, a Participant's Employer shall distribute to
the Participant immediately available funds in an amount equal to the
taxable portion of his or her benefit (which amount shall not exceed a
Participant's unpaid Account Balance under the Plan). If the petition
is granted, the tax liability distribution shall be made within 90
days of the date when the Participant's petition is granted. Such a
distribution shall affect and reduce the benefits to be paid under
this Plan.
(b) Trust. If the Trust terminates in accordance with Section 3.6(e) of
the Trust and benefits are distributed from the Trust to a Participant
in accordance with that Section, the Participant's benefits under this
Plan shall be reduced to the extent of such distributions.
16.17 Insurance. The Employers, on their own behalf or on behalf of the trustee
of the Trust, and, in their sole discretion, may apply for and procure
insurance on the life of the Participant, in such amounts and in such forms
as the Trust may choose. The Employers or the trustee of the Trust, as the
case may be, shall be the sole owner and beneficiary of any such insurance.
The Participant shall have no interest whatsoever in any such policy or
policies, and at the request of the Employers shall submit to medical
examinations and supply such information and execute such documents as may
be required by the insurance company or companies to whom the Employers
have applied for insurance.
16.18 Legal Fees To Enforce Rights After Change in Control. The Company and each
Employer is aware that upon the occurrence of a Change in Control, the
Board or the board of directors of the Participant's Employer (which might
then be composed of new members) or a shareholder of the Company or the
Participant's Employer, or of any successor corporation might then cause or
attempt to cause the Company or the Participant's Employer or such
successor to refuse to comply with its obligations under the Plan and might
cause or attempt to cause the Company or the Participant's Employer to
institute, or may institute, litigation seeking to deny Participants the
benefits intended under the Plan. In these circumstances, the purpose of
the Plan could be frustrated. Accordingly, if, following a Change in
Control, it should appear to any Participant that the Company, the
Participant's Employer or any successor corporation has failed to comply
with any of its obligations under the Plan or any agreement thereunder or,
if the Company, such Employer or any other person takes any action to
declare the Plan void or unenforceable or institutes any litigation or
other legal action designed to deny, diminish or to recover from any
Participant the benefits intended to be provided, then the Company and the
Participant's Employer irrevocably authorize such Participant to retain
counsel of his or her choice at the expense of the Company and the Employer
(who shall be jointly and severally liable) to represent such Participant
in connection with the initiation or defense of any litigation or other
legal action, whether by or against the Company, the Participant's Employer
or any director, officer, shareholder or other person affiliated with the
Company, the Participant's Employer or any successor thereto in any
jurisdiction.
26
The Robert Mondavi Corporation
Deferred Compensation Plan
Master Plan Document
IN WITNESS WHEREOF, the Company has signed this Plan document as of __________,
199_.
"Company"
--------------------------
a ________ corporation
By: ______________________
Title: ____________________
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