EXHIBIT 10.3
Principal Life Insurance Company, Raleigh, NC 27612
A member of the Principal Financial Group(R)
THE EXECUTIVE NONQUALIFIED "EXCESS" PLAN
ADOPTION AGREEMENT
THIS AGREEMENT is the adoption by Buffalo Wild Wings, Inc. (the
"Company") of the Executive Nonqualified Excess Plan ("Plan").
W I T N E S S E T H:
--------------------
WHEREAS, the Company desires to adopt the Plan as an unfunded,
nonqualified deferred compensation plan; and
WHEREAS, the provisions of the Plan are intended to comply with the
requirements of Section 409A of the Code and the regulations thereunder and
shall apply to amounts subject to section 409A; and
WHEREAS, the Company has been advised by Principal Life Insurance
Company to obtain legal and tax advice from its professional advisors before
adopting the Plan,
NOW, THEREFORE, the Company hereby adopts the Plan in accordance with
the terms and conditions set forth in this Adoption Agreement:
ARTICLE I
Terms used in this Adoption Agreement shall have the same meaning as in
the Plan, unless some other meaning is expressly herein set forth. The Employer
hereby represents and warrants that the Plan has been adopted by the Employer
upon proper authorization and the Employer hereby elects to adopt the Plan for
the benefit of its Participants as referred to in the Plan. By the execution of
this Adoption Agreement, the Employer hereby agrees to be bound by the terms of
the Plan.
ARTICLE II
The Employer hereby makes the following designations or elections for the
purpose of the Plan:
2.6 Committee: The duties of the Committee set forth in the Plan shall be
satisfied by:
(a) Company
---
(b) The administrative committee appointed by the Board to
--- serve at the pleasure of the Board.
(c) Board.
---
X (d) Other (specify): Board of Directors, who may delegate all
--- or some of its powers and duties to the Compensation
Committee.
2.8 Compensation: The "Compensation" of a Participant shall mean all of a
Participant's:
X (a) Base salary.
---
X (b) Service Bonus.
---
X (c) Performance-Based Compensation earned in a period of 12
--- months or more.
(d) Commissions.
---
(e) Compensation received as an Independent Contractor
--- reportable on Form 1099.
(f) Other: .
--- ------
2.9 Crediting Date: The Deferred Compensation Account of a Participant
shall be credited with the amount of any Participant Deferral to such
account at the time designated below:
(a) The last business day of each Plan Year.
(b) The last business day of each calendar quarter during the
Plan Year.
(c) The last business day of each month during the Plan Year.
(d) The last business day of each payroll period during the
Plan Year.
(e) Each pay day as reported by the Employer.
X (f) Any business day on which Participant Deferrals are
--- received by the Provider.
(g) Other:
---
2.13 Effective Date:
(a) This is a newly-established Plan, and the Effective Date
--- of the Plan is .
-----
X (b) This is an amendment and restatement of a plan named
--- Buffalo Wild Wings, Inc. Management Deferred Compensation
Plan with an effective date of 05/20/1999. The Effective
Date of this amended and restated Plan is 05/20/1999. This
is amendment number 4.
X (i) All amounts in Deferred Compensation Accounts
--- shall be subject to the provisions of this
amended and restated Plan.
(ii) Any Grandfathered Amounts shall be subject to
--- the Plan rules in effect on October 3, 2004.
2
2.20 Normal Retirement Age: The Normal Retirement Age of a Participant shall
be:
X (a) Age 65.
--- --
(b) The later of age or the anniversary of the participation
--- commencement date. The participation commencement date is
the first day of the first Plan Year in which the
Participant commenced participation in the Plan.
(c) Other: .
---
2.23 Participating Employer(s): As of the Effective Date, the following
Participating Employer(s) are parties to the Plan:
Name of Employer Address Telephone No. EIN
---------------- ------- ------------- ---
Buffalo Wild Wings, Inc. 5500 Wayzata Blvd., Suite 1600 (972) 593-9943 31-1455915
------------------------- ------------------------------ --------------- ----------
Minneapolis, MN 55416
-----------------------
2.26 Plan: The name of the Plan is
Buffalo Wild Wings, Inc. Management Deferred Compensation Plan.
--------------------------------------------------------------
2.28 Plan Year: The Plan Year shall end each year on the last day of the
month of December.
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2.30 Seniority Date: The date on which a Participant has:
(a) Attained age .
--- ---
(b) Completed Years of Service from First Date of Service.
--- ---
(c) Attained age and completed Years of Service from First
--- ---
--- Date of Service.
(d) Attained an age as elected by the Participant.
---
X (e) Not applicable - distribution elections for Separation
--- from Service are not based on Seniority Date
3
4.1 Participant Deferral Credits: Subject to the limitations in Section 4.1
of the Plan, a Participant may elect to have his Compensation (as
selected in Section 2.8 of this Adoption Agreement) deferred within the
annual limits below by the following percentage or amount as designated
in writing to the Committee:
X (a) Base salary:
----
minimum deferral: 1 %
-----
maximum deferral: $ or 100 %
----- -----
X (b) Service Bonus:
---
minimum deferral: 0 %
-----
maximum deferral: $ or 100 %
----- -----
X (c) Performance-Based Compensation:
---
minimum deferral: 0 %
-----
maximum deferral: $ or 100 %
----- -----
(d) Commissions:
---
minimum deferral: %
-----
maximum deferral: $ or %
----- -----
(e) Form 1099 Compensation:
---
minimum deferral: %
-----
maximum deferral: $ or %
----- -----
(f) Other:
---
minimum deferral: %
-----
maximum deferral: $ or %
----- -----
(g) Participant deferrals not allowed.
---
4
4.2 Employer Credits: Employer Credits will be made in the following
manner:
X (a) Employer Discretionary Credits: The Employer may make
--- discretionary credits to the Deferred Compensation
Account of each Active Participant in an amount
determined as follows:
X (i) An amount determined each Plan Year by
--- the Employer.
(ii) Other:
---
(b) Other Employer Credits: The Employer may make other
--- credits to the Deferred Compensation Account of each
Active Participant in an amount determined as
follows:
(i) An amount determined each Plan Year by
--- the Employer.
(ii) Other: .
--- -------
(c) Employer Credits not allowed.
---
5.2 Disability of a Participant:
X (a) Participants may elect upon initial enrollment to
--- have accounts distributed upon becoming Disabled.
(b) Participants may not elect to have accounts
--- distributed upon becoming Disabled.
5.3 Death of a Participant: If the Participant dies while in Service, the
Employer shall pay a benefit to the Beneficiary in an amount equal to
the vested balance in the Deferred Compensation Account of the
Participant determined as of the date payments to the Beneficiary
commence, plus:
--- (a) An amount to be determined by the Committee.
--- (b) Other: .
------
X (c) No additional benefits.
---
5
5.4 In-Service or Education Distributions: In-Service and Education
Accounts are permitted under the Plan:
X (a) In-Service Accounts are allowed with respect to:
---
X Participant Deferral Credits only.
---
Employer Credits only.
---
Participant Deferral and Employer Credits.
---
In-Service distributions may be made in the following
manner:
X Single lump sum payment.
---
X Annual installments over a term certain not
--- to exceed _5_ years.
Education Accounts are allowed with respect to:
Participant Deferral Credits only.
---
Employer Credits only.
---
Participant Deferral and Employer Credits.
---
Education Accounts distributions may be made in the
following manner:
Single lump sum payment.
---
Annual installments over a term certain not
--- to exceed ___ years.
If applicable, amounts not vested at the time
payments due under this Section cease will be:
Forfeited.
---
Distributed at Separation from Service if
vested at that time.
---
(b) No In-Service or Education Distributions permitted.
---
5.5 Change in Control Event:
(a) Participants may elect upon initial enrollment to
--- have accounts distributed upon a Change in Control
Event.
X (b) Participants may not elect to have accounts
--- distributed upon a Change in Control Event.
5.6 Unforeseeable Emergency Event:
(a) Participants may apply to have accounts distributed
--- upon an Unforeseeable Emergency event.
X (b) Participants may not apply to have accounts
--- distributed upon a Unforeseeable Emergency event.
6
6. Vesting: An Active Participant shall be fully vested in the Employer
Credits made to the Deferred Compensation Account upon the first to
occur of the following events:
PLEASE SEE EXHIBIT B
- --------------------
X (a) Normal Retirement Age.
---
X (b) Death.
---
X (c) Disability.
---
X (d) Change in Control Event.
---
(e) Other: .
--- ----------
X (f) Satisfaction of the vesting requirement as specified
--- below:
X Employer Discretionary Credits: (Schedule A)
---
(i) Immediate 100% vesting.
---
(ii) 100% vesting after Years of Service.
---
(iii) 100% vesting at age .
---
X (iv) Number of Years Vested
--- of Service Percentage
Less than 1 0%
-
1 20%
--
2 40%
--
3 60%
--
4 80%
--
5 100%
---
For this purpose, Years of Service of a Participant
shall be calculated from the date designated below:
X (1) First Day of Service.
---
(2) Effective Date of Plan Participation.
---
(3) Each Crediting Date. Under this
--- option (3), each Employer Credit
shall vest based on the Years of
Service of a Participant from the
Crediting Date on which each Employer
Discretionary Credit is made to his
or her Deferred Compensation Account.
7
Other Employer Credits:
(i) Immediate 100% vesting.
---
(ii) 100% vesting after Years of Service.
---
(iii) 100% vesting at age .
---
(iv) Number of Years Vested
--- of Service Percentage
Less than 1 %
---
1 %
---
2 %
---
3 %
---
4 %
---
5 %
---
6 %
---
7 %
---
8 %
---
9 %
---
10 or more %
---
For this purpose, Years of Service of a Participant
shall be calculated from the date designated below:
(1) First Day of Service.
---
(2) Effective Date of Plan Participation.
---
(3) Each Crediting Date. Under this option (3),
--- each Employer Credit shall vest based on
the Years of Service of a Participant from
the Crediting Date on which each Employer
Discretionary Credit is made to his or her
Deferred Compensation Account.
7.1 Payment Options: Any benefit payable under the Plan upon a permitted
Qualifying Distribution Event may be made to the Participant or his
Beneficiary (as applicable) in any of the following payment forms, as
selected by the Participant in the Participation Agreement:
(A) through (F) below are for EMPLOYEE Contributions Only
- ---------------------------------------------------------
See EXHIBIT C for Distributions of EMPLOYER Contributions
- ---------------------------------------------------------
(a) Separation from Service prior to Seniority Date, or Separation from
Service if Seniority Date is Not Applicable
X (i) A lump sum.
---
X (ii) Annual installments over a term certain as
--- elected by the Participant not to exceed
5 years.
-----
8
(iii) Other: _________________________________
---
(b) Separation from Service on or After Seniority Date, If
Applicable
(i) A lump sum.
---
(ii) Annual installments over a term certain as
--- elected by the Participant not to exceed___
years.
(iii) Other: ________.
---
(c) Separation from Service Upon a Change in Control Event
X (i) A lump sum.
---
(ii) Annual installments over a term certain as
--- elected by the Participant not to exceed___
years.
(iii) Other: ____________________________________.
---
(d) Death
X (i) A lump sum.
---
(ii) Annual installments over a term certain as
--- elected by the Participant not to exceed
years.
--- (iii) Other: ________.
(e) Disability
X (i) A lump sum.
---
X (ii) Annual installments over a term certain as
--- elected by the Participant not to exceed
5 years.
------
(iii) Other: _________________________________.
---
If applicable, amounts not vested at the time payments due
under this Section cease will be:
Forfeited
---
Distributed at Separation from Service if vested at
--- that time
(f) Change in Control Event
--- (i) A lump sum.
(ii) Annual installments over a term certain as
--- elected by the Participant not to exceed
years.
(iii) Other: ________.
X (iv) Not applicable.
---
If applicable, amounts not vested at the time payments due
under this Section cease will be:
9
Forfeited
---
Distributed at Separation from Service if vested at
--- that time
7.4 De Minimis Amounts.
(a) Notwithstanding any payment election made by the
--- Participant, the vested balance in the Deferred
Compensation Account of the Participant will be
distributed in a single lump sum payment at the time
designated under the Plan if at the time of a permitted
Qualifying Distribution Event that is either a
Separation from Service, death, Disability (if
applicable) or Change in Control Event (if applicable)
the vested balance does not exceed $________. In
addition, the Employer may distribute a Participant's
vested balance at any time if the balance does not
exceed the limit in Section 402(g)(1)(B) of the Code
and results in the termination of the Participant's
entire interest in the Plan
X (b) There shall be no pre-determined de minimis amount
--- under the Plan; however, the Employer may distribute a
Participant's vested balance at any time if the balance
does not exceed the limit in Section 402(g)(1)(B) of
the Code and results in the termination of the
Participant's entire interest in the Plan.
10.1 Contractual Liability: Liability for payments under the Plan shall be
the responsibility of the:
X (a) Company.
---
(b) Employer or Participating Employer who
--- employed the Participant when amounts were
deferred.
14. Amendment and Termination of Plan: Notwithstanding any provision in
this Adoption Agreement or the Plan to the contrary, Section 5.1, 6,
7.1 and Trust Language. of the Plan shall be amended to read as
provided in attached Exhibit A, B, C, and D.
There are no amendments to the Plan.
---
17.9 Construction: The provisions of the Plan shall be construed and enforced
according to the laws of the State of Minnesota, except to the extent that such
laws are superseded by ERISA and the applicable provisions of the Code.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and
year stated below.
Buffalo Wild Wings, Inc.
------------------------
Name of Employer
By: Mary J. Twinem
Authorized Person
Date: May 15, 2008
10
EXHIBIT A
Section 5. Qualifying Distribution Events:
- ---------- -------------------------------
5.1 Separation from Service.
Six months should be replaced with twelve months and seventh
month should be replaced with thirteenth month in regard to
distributions of Employer contributions.
EXHIBIT B
Section 6. Vesting:
- ---------- --------
In the event a Participant should terminate employment with the
Employer and become an employee of a competitor as determined by the
Plan Committee, the following vesting schedule will apply:
X Employer Discretionary Credits (Schedule B):
---
(i) Immediate 100% vesting.
---
(ii) 100% vesting after Years of Service.
---
(iii) 100% vesting at age .
---
X (iv) Number of Years Vested
--- of Service Percentage
Less than 1 0%
-
1 10%
--
2 20%
--
3 30%
--
4 40%
--
5 50%
--
6 60%
--
7 70%
--
8 80%
--
9 90%
--
10 or more 100%
---
For this purpose, Years of Service of a Participant
shall be calculated from the date designated below:
X (1) First Day of Service.
---
11
EXHIBIT C
Section 7. Distributing Rules:
- ---------- -------------------
Section 7.1. Payment Options.
The following has been added to Section 7.1:
Distributions for EMPLOYER Contributions Only
- ---------------------------------------------
7.1 Payment Options: Any benefit payable under the Plan upon a permitted
Qualifying Distribution Event may be made to the Participant or his
Beneficiary (as applicable) in any of the following payment forms, as
selected by the Participant in the Participation Agreement:
(a) Separation from Service prior to Seniority Date, or Separation from
Service if Seniority Date is Not Applicable
(i) A lump sum.
---
(ii) Annual installments over a term certain as
--- elected by the Participant not to exceed
5 years.
-----
X (iii) Other: Approximate equal annual installments
--- over 5 years.
(b) Separation from Service on or After Seniority Date, If
Applicable
(i) A lump sum.
---
(ii) Annual installments over a term certain as
--- elected by the Participant not to exceed___
years.
(iii) Other: ________.
---
(c) Separation from Service Upon a Change in Control Event
(i) A lump sum.
---
(ii) Annual installments over a term certain as
--- elected by the Participant not to exceed___
years.
X (iii) Other: Approximate equal annual installments
--- over 5 years.
(d) Death
X (i) A lump sum.
---
(ii) Annual installments over a term certain as
--- elected by the Participant not to exceed
years.
--- (iii) Other: ________.
12
(e) Disability
(i) A lump sum.
---
(ii) Annual installments over a term certain as
--- elected by the Participant not to exceed
years.
------
X (iii) Other: Approximate equal annual installments
--- over 5 years.
If applicable, amounts not vested at the time payments due
under this Section cease will be:
Forfeited
---
Distributed at Separation from Service if vested at
--- that time
(f) Change in Control Event
--- (i) A lump sum.
(ii) Annual installments over a term certain as
--- elected by the Participant not to exceed
years.
(iii) Other: ________.
X (iv) Not applicable.
---
If applicable, amounts not vested at the time payments due
under this Section cease will be:
Forfeited
---
Distributed at Separation from Service if
---
(g) Plan approved Domestic Relations Order
X (i) A lump sum.
---
EXHIBIT D
Trust:
(a) The Employer does desire to establish a "rabbi" trust
--- for the purpose of setting aside assets of the Employer
contributed thereto for the payment of benefits under
the Plan.
(b) The Employer does not desire to establish a "rabbi"
--- trust for the purpose of setting aside assets of the
Employer contributed thereto for the payment of
benefits under the Plan.
X (c) The Employer desires to establish a "rabbi" trust for
--- the purpose of setting aside assets of the Employer
contributed thereto for the payment of benefits under
the Plan upon the occurrence of a Change in Control.
13