EX-10.2 7 exhibit102.htm EX-10.2 exhibit102
1
CAL-MAINE FOODS, INC.
AMENDED AND RESTATED
DEFERRED COMPENSATION PLAN
RECITALS
This Amended and Restated Deferred Compensation Plan (the “
Plan
”) is adopted by Cal-Maine
Foods,
 
Inc.
 
(the
 
“
Company
”),
 
a
 
Delaware
 
corporation,
 
for
 
the
 
benefit
 
of
 
a
 
select
 
group
 
of
 
the
Company’s management
 
or highly compensated employees.
 
The Company is amending
 
and restating
the
 
Plan
 
to
 
reflect
 
certain
 
design
 
changes
 
to
 
the
 
Plan
 
and
 
to
 
otherwise
 
meet
 
current
 
needs
 
of
 
the
Company.
 
The purpose
 
of the
 
Plan is
 
to offer
 
selected Eligible
 
Employees
 
an
 
opportunity
 
to elect
 
to
defer a portion of
 
their Base Salary and/or
 
Bonus Compensation, and to continue
 
to provide a deferred
compensation
 
vehicle
 
to
 
which
 
the
 
Company
 
may
 
credit
 
discretionary
 
amounts
 
on
 
behalf
 
of
Participants.
This Plan replaces
 
and supersedes the
 
Deferred Compensation
 
Plan previously adopted
 
by the
Company
 
on
 
December 11,
 
2006,
 
and
 
subsequently
 
amended
 
on
 
September 25,
 
2008
 
and
December 10,
 
2008
 
(the
 
“
Prior
 
Plan
”).
 
Nothing
 
in
 
this
 
amendment
 
and
 
restatement
 
should
 
be
construed as
 
changing the
 
time and
 
form of
 
payment
 
of the
 
Prior Plan.
 
From and
 
after the
 
Effective
Date of this amendment and
 
restatement, all entitlement to benefits under
 
the Prior Plan and this
 
Plan
shall be determined solely in accordance with the terms of this Plan, as amended from time to time in
accordance with Article 10.
The
 
Company
 
intends
 
this
 
Plan
 
shall
 
at
 
all
 
times
 
be
 
administered
 
and
 
interpreted
 
in
 
such
 
a
manner
 
as
 
to
 
constitute
 
an
 
unfunded
 
nonqualified
 
plan
 
maintained
 
primarily
 
for
 
the
 
purpose
 
of
providing deferred
 
compensation for
 
a select
 
group of
 
management or
 
highly-compensated Employees,
and as
 
such, is intended
 
to be
 
exempt from the
 
provisions of Parts
 
2, 3, and
 
4 of
 
Title I of
 
the Employee
Retirement
 
Income
 
Security
 
Act
 
of 1974
 
(“
ERISA
”),
 
as
 
amended,
 
by
 
operation
 
of Sections
 
201(2),
301(a)(3) and 401(a)(1) thereof.
 
The Plan is
 
intended to
 
comply in
 
form and
 
operation with
 
all applicable
 
law, including,
 
to the
extent applicable, the requirements
 
of Internal Revenue Code
 
Section 409A and will
 
be administered,
operated and construed in accordance with
 
this intention.
Accordingly,
 
this amendment and restatement is adopted
 
as of December 1, 2021.
ARTICLE 1
DEFINITIONS
The words and
 
phrases defined
 
in this Article
 
shall have
 
the meaning set
 
out in the
 
definition,
unless the
 
context in
 
which
 
the word
 
or phrase
 
appears reasonably
 
requires a
 
broader,
 
narrower
 
or
different meaning.
1.1
 
“
Account
”
 
shall
 
mean
 
all
 
bookkeeping
 
accounts
 
pertaining
 
to
 
a
 
Participant
 
which
 
are
maintained by the
 
Plan Administrator
 
or Plan recordkeeper
 
to reflect the
 
Company’s
 
obligation to the
Participant under the Plan, including a Deferral
 
Account, a Long-Term
 
Incentive Contribution Account,
and In-Service Accounts
 
(if any). The
 
Plan Administrator or
 
Plan recordkeeper shall
 
establish additional
subaccounts
 
that
 
the
 
Plan
 
Administrator
 
considers
 
necessary
 
to
 
reflect
 
the
 
entire
 
interest
 
of
 
the
Participant under the Plan.
1.2
 
“
Affiliate
” shall mean any business entity other than the Company that is a member of
a controlled
 
group of
 
corporations,
 
within the
 
meaning of
 
Section 414(b)
 
of the
 
Code, of
 
which such
Company
 
is
 
a
 
member;
 
any
 
other
 
trade
 
or
 
business
 
(whether
 
or
 
not
 
incorporated)
 
under
 
common
control, within the meaning of Section 414(c)
 
of the Internal Revenue
 
Code.
 
2
1.3
 
“
Base
 
Salary
”
 
shall
 
mean
 
a
 
Participant’s
 
base
 
annual
 
salary
 
excluding
 
incentive
 
and
discretionary
 
bonuses
 
and
 
other
 
non-regular
 
forms
 
of
 
compensation,
 
before
 
reductions
 
for
contributions to or deferrals under any
 
pension, deferred compensation or benefit
 
plans sponsored by
the Company.
 
1.4
 
“
Beneficiary
” or
 
“
Beneficiaries
”
 
shall
 
mean
 
one
 
or more
 
persons,
 
trusts,
 
estates
 
or
other
 
entities,
 
designated
 
by
 
a
 
Participant
 
in
 
accordance
 
with
 
the
 
Plan,
 
that
 
are
 
entitled
 
to
 
receive
benefits under the Plan upon the death of a Participant.
1.5
 
“
Beneficiary Designation
 
Form
” shall
 
mean the
 
form established
 
from time
 
to time
by the Plan Administrator that a Participant completes, signs, and returns to the Plan Administrator to
designate one or more Beneficiaries.
1.6
 
“
Board
” shall mean the Board of Directors of the Company.
 
1.7
 
“
Bonus Compensation
” shall mean
 
amounts paid
 
to a Participant
 
by the
 
Company in
the form of incentive compensation or any other bonus designated
 
by the Company before reductions
for contributions to or deferrals under any pension, deferred compensation or benefit plans sponsored
by the Company.
 
1.8
 
“
Cause
”
 
shall
 
mean
 
conduct
 
by
 
a
 
Participant
 
determined
 
by
 
the
 
Company
 
to
 
be:
 
(a)
gross negligence
 
or willful
 
malfeasance in
 
the performance of
 
his or
 
her duties;
 
(b) actions
 
or omissions
that
 
harm
 
the
 
Company
 
and
 
are
 
undertaken
 
or
 
omitted
 
knowingly
 
or
 
are
 
criminal
 
or
 
fraudulent
 
or
involve material
 
dishonesty
 
or moral
 
turpitude; (c)
 
being indicted
 
in a
 
court of
 
law for
 
any felony
 
or
for a crime involving misuse or misappropriation
 
of Company funds; or (d) breach of fiduciary
 
duty to
the Company
1.9
 
“
Change in
 
Control
” shall
 
mean and
 
shall include
 
a change
 
in ownership
 
or effective
control
 
of
 
the
 
Company
 
or
 
a
 
change
 
in
 
the
 
ownership
 
of
 
a
 
substantial
 
portion
 
of
 
the
 
assets
 
of
 
the
Company,
 
within
 
the meaning
 
of Internal
 
Revenue
 
Code Section
 
409A and
 
as described
 
in Treasury
Regulation §§1.409A
 
-3(i)(5)(v), (vi)
 
and (vii);
 
however,
 
a Change
 
in Control
 
shall not
 
be deemed
 
to
have occurred
 
if the
 
aforementioned changes
 
involve the
 
purchase or
 
acquisition of
 
shares or
 
assets
by immediate family members of the shareholders
 
of record as of the Effective Date of this Plan.
1.10
 
“
Claimant
”
 
shall
 
mean
 
a
 
Participant
 
or
 
a
 
Beneficiary
 
who
 
believes
 
that
 
he
 
or
 
she
 
is
entitled to
 
a benefit
 
under this
 
Plan or
 
is being
 
denied a
 
benefit to
 
which he
 
or she
 
is entitled
 
hereunder.
 
1.11
 
“
Code
”
 
shall
 
mean
 
the
 
U.S.
 
Internal
 
Revenue
 
Code
 
of
 
1986,
 
as
 
amended,
 
or
 
any
successor statue, and the Treasury
 
Regulations and other authoritative
 
guidance issued thereunder.
1.12
 
“
Committee
” shall mean the Committee appointed by the Board to administer the Plan
pursuant to Article 12 hereof. If no such Committee has been appointed,
 
then the term “
Committee
”
shall mean the Company.
1.13
 
“
Company
” shall
 
mean
 
Cal-Maine Foods,
 
Inc.,
 
and its
 
successors
 
and assigns,
 
unless
otherwise
 
provided
 
in
 
this
 
Plan,
 
or
 
any
 
other
 
corporation
 
or
 
business
 
organization
 
which,
 
with
 
the
consent
 
of
 
Cal-Maine
 
Foods,
 
Inc.,
 
or
 
its
 
successors
 
or
 
assigns,
 
assumes
 
the
 
Company’s
 
obligations
under
 
this
 
Plan,
 
or
 
any
 
Affiliate
 
which
 
agrees,
 
with
 
the
 
consent
 
of
 
Cal-Maine
 
Foods,
 
Inc.,
 
or
 
its
successors or assigns, to become a party to
 
the Plan.
 
1.14
 
“
Deemed
 
Investment
”
 
shall
 
mean
 
the
 
notional
 
conversion
 
of
 
the
 
balance
 
held
 
in
 
a
Participant’s
 
Account(s)
 
into
 
shares
 
or
 
units
 
of
 
the
 
Deemed
 
Investment
 
Options
 
that
 
are
 
used
 
as
measuring devices for determining the value
 
of a Participant’s Account(s).
1.15
 
“
Deemed
 
Investment
 
Options
”
 
shall
 
mean
 
the
 
hypothetical
 
securities
 
or
 
other
investments described under
 
Section 6.1 from which
 
the Plan Administrator
 
may select to be
 
used as
measuring devices to determine the Deemed Investment gains or losses of a Participant’s
 
Account(s).
3
A Participant shall have no
 
real or beneficial ownership in
 
the security or other
 
investment represented
by the Deemed Investment Options.
1.16
 
“
Deferral Account
” shall
 
mean: (a)
 
the sum
 
of a
 
Participant’s Deferral Amounts (if
 
any)
for any Plan Year
 
or Performance Period
 
that may be allocated,
 
in whole or in part,
 
by the Participant
pursuant to his or her Deferral Election to the Deferral
 
Account, plus (b) Deemed Investment gains
 
or
losses
 
credited
 
or
 
debited
 
thereon,
 
less
 
(c)
 
any
 
distributions
 
made
 
to
 
the
 
Participant
 
or
 
his
 
or
 
her
Beneficiary,
 
and tax withholding amounts deducted
 
(if any) from the Participant’s
 
Deferral Account.
1.17
 
“
Deferral Amount
” shall mean that portion
 
of a Participant’s Base Salary and/or Bonus
Compensation that a Participant elects
 
to defer for any Plan Year
 
or Performance Period.
 
1.18
 
“
Deferral Election
” shall mean
 
an election by an
 
Eligible Employee on an
 
Election Form
approved by
 
the Plan
 
Administrator
 
(in a
 
paper or
 
electronic format)
 
to defer
 
a portion
 
of his
 
or her
Base Salary and/or Bonus Compensation in accordance
 
with the provisions of Article 3.
1.19
 
“
Effective Date
” shall
 
mean December 1,
 
2021 for
 
this amendment
 
and restatement,
and shall mean December 11, 2006 for the
 
commencement of the Plan.
 
1.20
 
“
Election
 
Form
”
 
shall
 
mean
 
the
 
form
 
or
 
forms
 
established
 
from
 
time
 
to
 
time
 
by
 
the
Plan Administrator
 
(in a
 
paper or
 
electronic format)
 
on which
 
the Participant
 
makes certain
 
designations
as required under the terms of this Plan.
1.21
 
“
Eligibility Date
” shall
 
mean the
 
date designated
 
by the
 
Plan Administrator
 
on which
an Eligible Employee shall become eligible
 
to participate in the Plan.
1.22
 
“
Eligible
 
Employee
”
 
shall
 
mean
 
for
 
any
 
calendar
 
year
 
(or
 
applicable
 
portion
 
of
 
a
calendar year), an Employee who is in
 
the select group of management of the Company
 
or is a highly
compensated Employee
 
of the Company,
 
and is determined
 
by the Committee,
 
or its designee,
 
to be
eligible to participate in the Plan.
 
1.23
 
“
Employee
”
 
shall
 
mean
 
an
 
individual
 
who
 
provides
 
services
 
to
 
the
 
Company
 
in
 
the
capacity of a common law Employee
 
of the Company.
1.24
 
“
ERISA
” shall
 
mean the
 
Employee Retirement Income
 
Security Act
 
of 1974,
 
as amended
from time to time, and the regulations and guidance
 
promulgated thereunder.
1.25
 
“
In-Service Account
” shall mean: (a)
 
the sum of a Participant’s
 
Deferral Amounts for
any
 
Plan
 
Year
 
or
 
Performance
 
Period
 
that
 
may
 
be
 
allocated,
 
in
 
whole
 
or
 
in
 
part,
 
by
 
the
 
Participant
pursuant to his
 
or her Deferral
 
Election to an
 
In-Service Account,
 
plus (b) Deemed
 
Investment gains
or losses
 
credited
 
or debited
 
thereon less
 
(c) any
 
distributions made
 
to the
 
Participant
 
or his
 
or her
Beneficiary,
 
and tax withholding amounts that relate
 
to the Participant’s
 
In-Service Account.
 
1.26
 
“
Long-Term Incentive Contribution
” shall mean the
 
deferred compensation amount
credited on behalf of a
 
Participant by the
 
Company to the Long-Term
 
Incentive Contribution Account,
as described in Section 5.2.
 
1.27
 
“
Long-Term Incentive Contribution Account
” shall mean: (a) the sum of
 
the Long-
Term
 
Incentive Contribution
 
amounts (if
 
any) for
 
any Plan
 
Year
 
that the
 
Company may
 
allocate to
 
a
Participant’s
 
Long-Term
 
Incentive Contribution
 
Account, plus (b)
 
Deemed Investment
 
gains or losses
credited or debited thereon, less
 
(c) any distributions made to
 
the Participant or his or
 
her Beneficiary,
and tax
 
withholding amounts
 
deducted (if
 
any) from
 
the Participant’s Long-Term Incentive Contribution
Account.
1.28
 
“
Participant
”
 
shall
 
mean
 
an
 
Eligible
 
Employee
 
of
 
the
 
Company
 
who
 
has
 
met
 
the
requirements of
 
participation under
 
Article 2
 
and who
 
participates in
 
the Plan
 
in accordance
 
with the
terms and conditions of the Plan.
4
1.29
 
“
Participation
 
Agreement
”
 
shall
 
mean
 
the
 
agreement
 
executed
 
by
 
the
 
Eligible
Employee whereby he or she agrees
 
to participate in the Plan.
1.30
 
“
Performance
 
Period
”
 
shall
 
mean,
 
with
 
respect
 
to
 
any
 
Bonus
 
Compensation,
 
the
period of time over which such Bonus Compensation
 
is earned.
1.31
 
“
Plan
”
 
shall
 
mean
 
this
 
Amended
 
and
 
Restated
 
Deferred
 
Compensation
 
Plan,
 
as
evidenced by this
 
written instrument,
 
Participation Agreements,
 
Election Forms,
 
and any other
 
forms
as may be required by the Plan Administrator,
 
as amended from time to time. For purposes of Section
409A, the
 
portion of
 
the amounts
 
deferred by
 
a Participant
 
and Deemed
 
Investment
 
gains or
 
losses
credited or
 
debited thereon,
 
shall be
 
considered an
 
elective account
 
balance plan
 
as defined
 
in Treasury
Regulations §1.409A-1(c)(2)(i)(A),
 
or as otherwise provided by the
 
Code; the portion of the amounts
deferred
 
as
 
Long-Term
 
Incentive
 
Contributions
 
together
 
with
 
Deemed
 
Investment
 
gains
 
or
 
losses
credited
 
or
 
debited
 
thereon,
 
shall
 
be
 
considered
 
a
 
nonelective
 
account
 
balance
 
plan
 
as
 
defined
 
in
Treasury
 
Regulations §1.409A-1(c)(2)(i)(B),
 
or as otherwise provided in the Code.
1.32
 
“
Plan Administrator
” shall
 
mean the
 
Committee as
 
appointed by
 
the Board
 
pursuant
to Article 12.
 
A Participant
 
may not participate
 
in any
 
action on a
 
matter which
 
applies solely
 
to that
person’s individual benefits under
 
the Plan.
1.33
 
“
Plan Year
” shall
 
mean, for
 
the first
 
Plan Year,
 
the period
 
beginning on
 
the Effective
Date and ending December 31
 
of such calendar Year;
 
and thereafter shall mean
 
a twelve (12) month
period
 
beginning
 
January 1
 
of
 
each
 
calendar
 
year
 
and
 
continuing
 
through
 
December 31
 
of
 
such
calendar year during which the Plan is in effect.
1.34
 
“
Section 409A
” shall
 
mean Code
 
Section 409A
 
and the
 
Treasury
 
Regulations or
 
other
authoritative guidance issued thereunder.
1.35
 
“
Separation from Service
” or
 
“
Separates from Service
” shall
 
mean a
 
Participant has
experienced a
 
termination of
 
employment with
 
the Company.
 
Whether a
 
termination of
 
employment
or service has occurred is determined based on whether the
 
facts and circumstances indicate that the
Company and the Participant reasonably anticipated that no further services would
 
be performed after
a
 
certain
 
date
 
or
 
that
 
the
 
level
 
of
 
bona
 
fide
 
services
 
the
 
Participant
 
would
 
perform
 
after
 
such
 
date
(whether as
 
an Employee
 
or as
 
an independent
 
contractor) would
 
permanently decrease
 
to no
 
more
than
 
twenty
 
percent
 
(20%)
 
of
 
the
 
average
 
level
 
of
 
bona
 
fide
 
services
 
performed
 
by
 
the
 
Participant
(whether as an Employee or as an independent contractor) over the immediately preceding 36-month
period (or
 
the full
 
period during
 
which the
 
Participant
 
performed services
 
for the
 
Company,
 
if that
 
is
less than 36 months).
 
1.36
 
“
Specified
 
Time
”
 
shall
 
mean,
 
with
 
respect
 
to
 
a
 
Participant’s
 
In-Service
 
Account,
 
the
date on which the In-Service Account shall
 
be paid to the Participant.
 
1.37
 
“
Treasury
 
Regulation
”
 
or
 
“
Treasury
 
Regulations
”
 
shall
 
mean
 
regulations
promulgated by
 
the Internal
 
Revenue
 
Service for
 
the U.S.
 
Department of
 
the Treasury,
 
as they
 
may
be amended from time to time.
1.38
 
“
Unforeseeable
 
Emergency
”
 
shall
 
mean:
 
(a)
 
a
 
severe
 
financial
 
hardship
 
to
 
a
Participant
 
resulting
 
from
 
an
 
illness
 
or
 
accident
 
of
 
the
 
Participant,
 
the
 
Participant’s
 
spouse,
 
the
Participant’s
 
Beneficiary,
 
or
 
the
 
Participant’s
 
dependents
 
(as
 
defined
 
in
 
Code
 
Section
 
152
 
(without
regard to Code
 
Sections 152(b)(1), (b)(2),
 
and (d)(1)(B));
 
(b ) loss of
 
the Participant’s
 
property due
to casualty;
 
or (c)
 
other similar
 
extraordinary and
 
unforeseeable circumstances
 
arising as a
 
result of
events
 
beyond
 
the
 
control
 
of
 
the
 
Participant.
 
The
 
Plan
 
Administrator
 
will
 
determine
 
whether
 
a
Participant incurs an
 
Unforeseeable Emergency
 
based on the relevant
 
facts and circumstances
 
and in
accordance with Treasury
 
Regulations §1.409A-3(i)(3).
1.39
 
“
Valuation Date
” shall mean the date
 
through which Deemed Investment gains and/or
losses are
 
credited or
 
debited to
 
a Participant’s
 
Account(s). For
 
purposes of
 
providing benefits
 
under
the terms
 
of the
 
Plan, the
 
Valuation
 
Date shall
 
be the
 
event date
 
triggering payment
 
of the
 
Account
5
under the terms of the Plan, or such date as close to the payment date as is administratively feasible.
The Valuation
 
Date shall
 
be interpreted
 
as each
 
day at
 
the close
 
of business
 
of the
 
New York
 
Stock
Exchange (currently 4:00
 
p.m. Eastern Time), on
 
days that the New York
 
Stock Exchange is open
 
for
trading
 
or
 
any
 
other
 
day
 
on
 
which
 
there
 
is
 
sufficient
 
trading
 
in
 
securities
 
of
 
the
 
applicable
 
fund
 
to
materially affect
 
the unit
 
value of
 
the fund
 
and the
 
corresponding unit
 
value of
 
the Participant's Deemed
Investment Option(s).
 
1.40
 
“
Year of
 
Service
” shall
 
mean a
 
consecutive twelve
 
(12) month
 
period during
 
which a
Participant
 
is
 
employed
 
on
 
a
 
full-time
 
basis
 
by
 
the
 
Company,
 
inclusive
 
of
 
any
 
approved
 
leaves
 
of
absence, beginning on the Participant’s
 
date of hire.
ARTICLE 2
ELIGIBILITY AND PARTICIPATION
2.1
Selection
. Participation
 
in this
 
Plan shall
 
be limited
 
to those
 
Eligible Employees
 
of the
Company or Affiliates, as determined by the
 
Plan Administrator in its sole and
 
absolute discretion.
 
2.2
Enrollment
 
Requirements
.
 
As
 
a
 
condition
 
of
 
participation
 
in
 
this
 
Plan,
 
each
 
Eligible
Employee
 
shall
 
complete,
 
execute,
 
and
 
submit
 
to the
 
Plan
 
Administrator
 
a Participation
 
Agreement,
Beneficiary Designation Form, and any other Election
 
Forms required by the Plan Administrator
 
within
the time specified
 
by the Plan
 
Administrator in
 
accordance with the
 
terms and conditions
 
of the Plan.
In
 
addition,
 
the
 
Plan
 
Administrator
 
shall
 
establish
 
such
 
other
 
enrollment
 
requirements
 
as
 
it
 
deems
necessary or advisable.
 
2.3
Re-employment
. The re-employment of a
 
former Participant by the Company shall not
entitle
 
such
 
individual
 
to
 
become
 
a
 
Participant
 
hereunder.
 
Such
 
individual
 
shall
 
not
 
become
 
a
Participant until the individual
 
is again designated as an
 
Eligible Employee in accordance
 
with Section
2.1.
 
If
 
a
 
Participant
 
who
 
has
 
experienced
 
a
 
Separation
 
from
 
Service
 
is
 
receiving
 
installment
distributions pursuant to the terms
 
of the Plan and is re-employed
 
by the Company,
 
distributions due
to the Participant shall not be suspended.
2.4
Ceasing to be an Eligible
 
Employee
. The Plan Administrator
 
may remove an Eligible
Employee from
 
further active
 
participation in
 
the Plan
 
at its
 
discretion. If
 
this occurs,
 
the Participant
shall not have additional amounts credited to the Long
 
-Term
 
Incentive Contribution Account and shall
be
 
prevented
 
from
 
making
 
Participant
 
Deferral
 
Elections
 
for
 
subsequent
 
Plan
 
Years
 
or
 
Performance
Periods.
 
Any
 
existing
 
Deferral
 
Election
 
shall
 
continue
 
in
 
effect for
 
the
 
remainder
 
of the
 
Plan
 
Year
 
or
Performance Period and
 
may only be cancelled in accordance with Sectio
 
n
 
3.4(b) hereof.
 
2.5
Termination of Participation
. A
 
Participant will cease
 
to be
 
a Participant as
 
of the
 
date
on which his or her entire Account balance has
 
been distributed or forfeited.
ARTICLE 3
DEFERRAL ELECTIONS
3.1
Minimum
 
and
 
Maximum
 
Deferral
 
Limits.
 
For
 
each
 
Plan
 
Year
 
and/or
 
Performance
Period (as
 
applicable), if
 
offered by the
 
Company,
 
a Participant
 
shall specify
 
the percentage
 
or dollar
amount
 
of
 
Base
 
Salary
 
and/or
 
Bonus
 
Compensation
 
to
 
be
 
deferred
 
subject
 
to
 
the
 
minimums
 
or
maximums (if any) established by the
 
Plan Administrator and communicated
 
to the Participant on the
Election Form.
 
3.2
Deferral Elections
 
– First Year
 
of Eligibility.
(a)
Application
.
 
This
 
Section
 
3.2
 
applies
 
to
 
each
 
Eligible
 
Employee
 
who
 
first
becomes
 
eligible
 
to
 
participate
 
in
 
the
 
Plan.
 
The
 
Plan
 
Administrator
 
shall
 
determine
 
(in
accordance
 
with
 
Treasury
 
Regulation
 
§1.409A-2(a)(7)(ii))
 
the
 
date
 
upon
 
which
 
a
 
Participant
6
who ceased being eligible to participate
 
in the Plan, can again
 
become eligible to participate in
the Plan.
 
(b)
Deferral Election
. An
 
Eligible Employee
 
described in
 
Section 3.2(a)
 
may elect
to defer receipt of Base Salary earned during such Plan Year or his or her Bonus Compensation
earned during a Performance
 
Period by filing
 
a Deferral Election with
 
the Plan Administrator
 
in
accordance with the following rules:
(i)
Timing; Irrevocability
. The Deferral Election must
 
be filed with the
 
Plan
Administrator by,
 
and shall become irrevocable
 
as of,
 
the thirtieth (30th)
 
day following
the
 
Participant’s
 
Eligibility
 
Date
 
(or
 
such
 
earlier
 
date
 
as
 
specified
 
by
 
the
 
Plan
Administrator).
(ii)
Base Salary
. The Deferral Election
 
shall only apply
 
to Base Salary
 
earned
during such
 
calendar year beginning
 
with the
 
first payroll period
 
that begins immediately
after the date the
 
Deferral Election becomes
 
irrevocable. Base Salary
 
payable after
 
the
last day of a calendar year
 
solely for services performed during
 
the final payroll period,
described in Section 3401(b) of the Code,
 
containing December 31 of such year shall be
treated as earned during the subsequent calendar
 
year.
(iii)
Bonus Compensation
. Where a Deferral Election is filed in the first year
of
 
eligibility
 
but
 
after
 
the
 
commencement
 
of
 
the
 
Performance
 
Period,
 
then,
 
except
 
as
otherwise provided
 
in Section
 
3.3 below,
 
the Deferral
 
Election shall
 
only apply
 
to that
portion of
 
Bonus Compensation
 
earned for
 
such Performance
 
Period
 
equal to
 
the total
amount of
 
the Bonus
 
Compensation earned
 
during such
 
Performance
 
Period multiplied
by
 
a
 
fraction,
 
the
 
numerator
 
of
 
which
 
is
 
the
 
number
 
of
 
days
 
beginning
 
on
 
the
 
day
immediately after the
 
date that the
 
Deferral Election becomes irrevocable and
 
ending on
the last
 
day of
 
the Performance Period,
 
and the
 
denominator of
 
which is
 
the total
 
number
of days in the Performance Period.
3.3
Annual
 
Deferral
 
Elections
.
 
Unless
 
Section
 
3.2
 
applies,
 
each
 
Eligible
 
Employee
 
may
elect to
 
defer receipt of
 
Base Salary
 
for a
 
Plan Year or
 
his or
 
her Bonus
 
Compensation for
 
a Performance
Period, by filing a Deferral Election
 
with the Plan Administrator in accordance
 
with the following rules:
(a)
Base Salary
. The
 
Deferral Election with
 
respect to
 
Base Salary
 
must be
 
filed with
the Plan
 
Administrator by, and shall
 
become irrevocable following,
 
December 31 (or
 
such earlier
date as specified by the Plan Administrator
 
on the Deferral Election ) of the calendar
 
year next
preceding the calendar year for which such
 
amounts would otherwise be earned.
(b)
Bonus
 
Compensation
.
 
The
 
Deferral
 
Election
 
with
 
respect
 
to
 
Bonus
Compensation
 
must
 
be
 
filed
 
with
 
the
 
Plan
 
Administrator
 
by,
 
and
 
shall
 
become
 
irrevocable
following,
 
December 31
 
(or
 
such
 
earlier
 
date
 
as
 
specified
 
by
 
the
 
Plan
 
Administrator
 
on
 
the
Deferral Election)
 
of the
 
calendar year
 
next preceding
 
the first
 
day of
 
the Performance
 
Period
for which
 
such Bonus
 
Compensation
 
would
 
otherwise be
 
earned. If
 
the Company
 
has a
 
fiscal
year other
 
than the
 
calendar year,
 
Bonus Compensation
 
relating to
 
services in
 
the fiscal
 
year
of the Company, of which no amount is paid or payable during the fiscal year,
 
may be deferred
at
 
the
 
Participant’s
 
election
 
if
 
the
 
Deferral
 
Election
 
is
 
made
 
not
 
later
 
than
 
the
 
close
 
of
 
the
Company’s fiscal year next preceding
 
the first fiscal year in which the Participant performs
 
any
services for which
 
such Bonus
 
Compensation is
 
payable. Any
 
Deferral Election
 
with respect
 
to
Bonus Compensation
 
that constitutes
 
“
performance-based compensation
” under
 
Treasury
Regulation
 
§1.409A-1(e)(1),
 
must
 
be
 
filed
 
with
 
the
 
Plan
 
Administrator
 
by,
 
and
 
shall
 
become
irrevocable as of,
 
the date that is six (6)
 
months before the end of
 
the applicable Performance
Period
 
(or
 
such
 
earlier
 
date
 
as
 
specified
 
by
 
the
 
Plan
 
Administrator
 
on
 
the
 
Deferral
 
Election),
provided that
 
in no
 
event may
 
such Deferral
 
Election be
 
filed after
 
such Bonus
 
Compensation
has become “
readily ascertainable
” within the meaning of Section 409A.
3.4
 
Duration and Cancellation of Deferral
 
Elections.
 
7
(a)
Duration
.
 
Once
 
irrevocable,
 
a
 
Deferral
 
Election
 
shall
 
only
 
be
 
effective
 
for
 
the
Plan Year
 
or Performance
 
Period with
 
respect to
 
which such
 
election was
 
timely filed
 
with the
Plan Administrator.
 
Except as provided in Section 3.4(b), a
 
Deferral Election, once irrevocable,
cannot be cancelled or altered during a Plan Year
 
or Performance Period.
 
(b)
Cancellation
.
 
Pursuant
 
to
 
Treasury
 
Regulation
 
§1.409A-3(j)(4)(viii),
 
the
 
Plan
Administrator must cancel a Participant's Deferral Election due to an Unforeseeable Emergency
distribution. If a
 
Participant’s Deferral Election is cancelled, the Participant may
 
complete a new
Deferral
 
Election
 
for
 
a
 
subsequent
 
Plan
 
Year
 
or
 
Performance
 
Period,
 
only
 
in
 
accordance
 
with
Section 3.3.
ARTICLE 4
ACCOUNT ALLOCATION AND DISTRIBUTION
 
ELECTIONS
4.1
Establishment and Maintenance
 
of Participant Account(s).
 
The Plan Administrator
shall establish and
 
maintain a Deferral
 
Account, a Long-Term
 
Incentive Contribution
 
Account, and an
In-Service Account
 
for each
 
Plan Year,
 
as applicable,
 
in the
 
name of
 
each Participant,
 
and any
 
other
subaccounts deemed necessary by the Plan Administrator for proper tracking of the
 
benefit obligation.
 
4.2
Account Allocation
. Concurrent with any Deferral Election, a Participant may make an
irrevocable
 
election
 
to
 
allocate
 
all
 
or a
 
portion
 
of his
 
or her
 
elected
 
Deferral
 
Amount
 
to a
 
Plan
 
Year
Deferral
 
Account
 
and/or
 
a
 
Plan
 
Year
 
In-Service
 
Account.
 
To
 
the
 
extent
 
that
 
a
 
Participant
 
does
 
not
designate the Account to which Deferral Amounts will be allocated for a Plan
 
Year,
 
or such designation
is ambiguous or does not comply with the terms of the Plan, such Deferral
 
Amounts shall be allocated
and credited to
 
the Participant’s
 
Plan Year
 
Deferral Account.
 
Long-Term
 
Incentive Contributions
 
shall
not be
 
allocated to
 
an In-Service
 
Account, and
 
instead shall
 
be allocated
 
to a
 
Participant’s
 
Plan Year
Long-Term
 
Incentive Contribution Account.
 
4.3
In-Service Account Elections
. If a Participant
 
elects to allocate Deferral Amounts
 
for
a Plan
 
Year
 
into an
 
In-Service Account
 
in accordance
 
with Section
 
4.2, the
 
Participant shall
 
make an
election as to the year in
 
which payment will be made or
 
commence from that In-Service Account (the
“
Specified Time
”). A Participant may elect to receive a distribution of a Plan Year
 
In-Service Account
no
 
sooner
 
than
 
January 1st
 
of the
 
fifth
 
(5th)
 
Plan
 
Year
 
following
 
the
 
Plan
 
Year
 
of the
 
deferral.
 
(For
example:
 
If
 
a
 
Participant
 
elects
 
to
 
allocate
 
2022
 
Deferral
 
Amounts
 
into
 
an
 
In-Service
 
Account,
 
the
earliest
 
date
 
these
 
Deferral
 
Amounts
 
could
 
be
 
distributed
 
would
 
be
 
January 1,
 
2027).
 
A
 
Participant
must also elect
 
whether a Plan Year In-Service Account will
 
be paid in
 
a lump sum or
 
in four (4) annual
installments. To
 
the extent
 
that the
 
elections are
 
ambiguous or
 
do not
 
comply with
 
the terms
 
of this
Section, then that In-Service Account shall be paid
 
at the earliest permissible date in accordance with
this Section and/or in a lump sum.
4.4
Other Distribution
 
Elections
. A
 
Participant’s
 
Account shall
 
be paid
 
to the
 
Participant
or Beneficiary in accordance with the terms of the
 
payment events described in Article 8.
 
(a)
Separation
 
from
 
Service
.
 
Within
 
thirty
 
(30)
 
days
 
following
 
a
 
Participant’s
Eligibility
 
Date, a
 
Participant
 
must elect
 
whether
 
to be
 
paid in
 
a lump
 
sum or
 
in five
 
(5), ten
(10), or
 
fifteen (15)
 
annual installments for
 
Separation from Service.
 
Thereafter, coinciding with
each annual
 
enrollment, Participants
 
will make
 
a separate
 
distribution
 
election for
 
Separation
form
 
Service
 
which
 
will
 
apply
 
to
 
the
 
following
 
Plan
 
Year’s
 
Deferral
 
Account
 
and
 
Long-Term
Incentive Contribution
 
Account. To
 
the extent
 
that these
 
distribution elections
 
are ambiguous
or do not comply with
 
the terms of this Section,
 
a Participant shall
 
be deemed to have
 
elected
to be
 
paid in
 
ten (10)
 
annual installments.
 
Notwithstanding
 
the above,
 
pursuant to
 
the terms
of the Prior Plan,
 
Participants were
 
allowed a one-time
 
election upon plan
 
entry as to the time
and
 
form
 
of
 
payment
 
for
 
distribution
 
of
 
amounts
 
contributed
 
to
 
the
 
Plan
 
prior
 
to
 
January 1,
2022.
 
(b)
Death
.
 
Within
 
thirty
 
(30)
 
days
 
following
 
a
 
Participant’s
 
Eligibility
 
Date,
 
a
Participant must elect whether to be paid
 
in a lump sum or in five (5), ten (10), or fifteen
 
(15)
8
annual installments for death. To the extent that the distribution election is ambiguous or does
not comply with the terms
 
of this Section, a Participant
 
shall be deemed to
 
have elected to be
paid in ten (10)
 
annual installments.
 
Notwithstanding the above,
 
pursuant to the
 
terms of the
Prior
 
Plan,
 
Participants
 
were
 
allowed
 
a
 
one-time
 
election
 
upon
 
plan
 
entry
 
as
 
to
 
the
 
form
 
of
payment for
 
amounts contributed
 
to the
 
Plan prior
 
to January 1,
 
2022. For
 
those Participants
enrolled in
 
the Plan
 
at the
 
time of
 
this amendment and
 
restatement, a
 
new one-time
 
distribution
election
 
for
 
death
 
may
 
be
 
made
 
for
 
amounts
 
contributed
 
to
 
the
 
Plan
 
on
 
or
 
after
 
January 1,
2022.
 
ARTICLE 5
CREDITING OF AMOUNTS
5.1
Withholding and
 
Crediting of
 
Deferral Amounts
. For
 
each Plan
 
Year,
 
the Base
 
Salary
portion of
 
the Deferral
 
Amount shall
 
be withheld
 
from each
 
regularly scheduled
 
payroll in
 
approximately
equal amounts (or as otherwise
 
specified by the Plan Administrator), as adjusted
 
from time to time
 
for
increases
 
and
 
decreases
 
in
 
Base
 
Salary
 
(if
 
the
 
Participant’s
 
Deferral
 
Election
 
is
 
expressed
 
as
 
a
percentage).
 
The
 
Bonus
 
Compensation
 
portion
 
of the
 
Deferral
 
Amount
 
shall
 
be
 
withheld
 
as
 
soon as
administratively
 
feasible following
 
the time
 
the Bonus
 
Compensation
 
otherwise would
 
be paid
 
to the
Participant, whether or not this occurs
 
during the Plan Year or Performance Period as the
 
case may be.
Participant
 
Deferral
 
Amounts
 
shall
 
be
 
credited
 
to
 
the
 
Participant
 
Deferral
 
Account
 
and/or
 
to
 
an
 
In-
Service Account as soon as administratively feasible following the time such amounts would otherwise
have been paid to a Participant.
5.2
 
Crediting of
 
Long-Term Incentive Contributions
. Each
 
Plan Year, the Company may
credit a Long-Term
 
Incentive Contribution to the Plan on behalf of a Participant in such amount as the
Company shall determine
 
in its sole
 
discretion. The Company
 
is under no
 
obligation to credit
 
a Long-
Term
 
Incentive
 
Contribution
 
for a
 
Plan
 
Year,
 
and
 
Long-Term
 
Incentive
 
Contributions,
 
if made,
 
need
not
 
be
 
uniform
 
among
 
Participants.
 
Any
 
Long-Term
 
Incentive
 
Contribution
 
shall
 
be
 
credited
 
to
 
a
Participant's
 
Long-Term
 
Incentive
 
Contribution
 
Account
 
on
 
such
 
date
 
as
 
determined
 
by
 
the
 
Plan
Administrator.
ARTICLE 6
DEEMED INVESTMENT GAINS OR LOSSES
6.1
Deemed
 
Investment
 
Options
.
 
The
 
Plan
 
Administrator
 
will
 
determine
 
the
 
available
Deemed
 
Investment
 
Options
 
for
 
purposes
 
of
 
crediting
 
or
 
debiting
 
the
 
Deemed
 
Investment
 
gains
 
or
losses to the Account.
 
The Plan Administrator may discontinue, substitute, or
 
add Deemed Investment
Options in its sole discretion on a prospective
 
basis. Any discontinuance, substitution,
 
or addition of a
Deemed
 
Investment
 
Option
 
will
 
take
 
effect
 
as
 
soon
 
as
 
administratively
 
practicable.
 
The
 
Deemed
Investment
 
Options
 
are
 
to
 
be
 
used
 
for
 
measurement
 
purposes
 
only,
 
and
 
the
 
Plan
 
Administrator’s
selection of any such
 
Deemed Investment Option,
 
the allocation of such
 
Deemed Investment Options
to the Account, the calculation of additional amounts, and
 
the crediting or debiting of such amounts to
the Account
 
shall not
 
be considered
 
or construed
 
in any
 
manner as
 
an actual
 
investment of
 
the Account.
The Plan Administrator
 
will not
 
be responsible
 
in any
 
manner to any
 
Participant, Beneficiary
 
or other
person for
 
any
 
damages,
 
losses, liabilities,
 
costs
 
or expenses
 
of any
 
kind
 
arising
 
in
 
connection
 
with
any
 
designation
 
or
 
elimination
 
of a
 
Deemed
 
Investment
 
Option.
 
Without
 
limiting
 
the
 
foregoing,
 
the
Account shall
 
at all
 
times be
 
a bookkeeping
 
entry only
 
and shall
 
not represent
 
any investment
 
made
on his or her
 
behalf by the
 
Plan Administrator.
 
A Participant
 
(or Beneficiary) shall
 
at all times
 
remain
an unsecured
 
creditor of
 
the Company.
 
Any liability
 
or obligation
 
of the
 
Company to
 
any Participant,
former
 
Participant,
 
or
 
Beneficiary
 
with
 
respect
 
to
 
a
 
right
 
to
 
payment
 
shall
 
be
 
based
 
solely
 
upon
contractual obligations created by this
 
Plan.
6.2
Participant’s
 
Allocation
 
of
 
Deemed
 
Investment
 
Options
.
 
Each
 
Participant
 
shall
have the right to direct the Plan Administrator as to how the Participant’s Deferral Amounts and Long-
Term
 
Incentive Contributions shall be deemed to be invested
 
among the Deemed Investment Options
offered
 
under
 
the
 
Plan,
 
subject
 
to
 
any
 
rule,
 
policy,
 
practice
 
or
 
procedure
 
adopted
 
by
 
the
 
Plan
9
Administrator.
 
As
 
of each
 
Valuation
 
Date,
 
the
 
Participant’s
 
Account(s)
 
will
 
be
 
credited
 
or debited
 
to
reflect the
 
performance
 
of the
 
Deemed
 
Investment
 
Options elected
 
by the
 
Participant.
 
If a
 
Deemed
Investment
 
Option
 
selected
 
by
 
a
 
Participant
 
sustains
 
a
 
loss,
 
the
 
Participant’s
 
Account(s)
 
shall
 
be
reduced to reflect such loss. If
 
the Participant fails
 
to elect a Deemed Investment
 
Option the Deemed
Investment shall be based on an investment
 
as may be established by the Plan
 
Administrator.
 
6.3
Participant
 
Responsibilities
.
 
Each
 
Participant
 
is
 
solely
 
responsible
 
for
 
any
 
and
 
all
consequences of
 
his or
 
her investment directions
 
made pursuant
 
to this
 
Article 6.
 
Neither the
 
Company,
any
 
of its
 
directors,
 
officers
 
or
 
employees,
 
nor
 
the
 
Plan
 
Administrator
 
has
 
any
 
responsibility
 
to
 
any
Participant or
 
other person
 
for any
 
damages, losses,
 
liabilities, costs
 
or expenses
 
of any
 
kind arising
in connection with any investment
 
direction made by a Participant pursuant
 
to this Article 6.
6.4
No Required
 
Investment of
 
Company Assets
. Notwithstanding
 
anything contained
herein to the
 
contrary,
 
the Company
 
reserves the right
 
to invest its
 
assets, including
 
any assets that
may have been
 
set aside for the purpose
 
of funding the benefits
 
to be provided under
 
the Plan, at its
own discretion, and such
 
assets shall remain the property
 
of the Company,
 
or may be held in
 
a trust,
as the case may be, subject to the claims
 
of the general creditors of the Company,
 
and no Participant
shall have any
 
right to any
 
portion of such
 
assets other
 
than as an
 
unsecured general
 
creditor of the
Company.
ARTICLE 7
VESTING / FORFEITURES / TAXES
7.1
Participant Accounts
. A Participant shall
 
at all times be one hundred
 
percent (100%)
vested in his or her Deferral Account
 
and In-Service Account(s).
 
7.2
Long-Term
 
Incentive
 
Contribution
 
Account
.
 
Unless
 
otherwise
 
stated
 
in
 
a
Participant’s
 
Participation
 
Agreement, Long-Term
 
Incentive Contributions
 
shall be
 
tracked
 
separately
for each
 
Plan
 
Year
 
and
 
shall
 
become
 
one hundred
 
percent
 
(100%)
 
vested
 
on December
 
31st
 
of the
fifth
 
(5th)
 
Plan
 
Year
 
following
 
the
 
year
 
such
 
contribution
 
is
 
credited
 
to
 
the
 
Plan.
 
For
 
example:
 
a
contribution
 
credited
 
in
 
December
 
2021
 
will
 
100%
 
vest
 
on
 
12/31/2026;
 
a
 
contribution
 
credited
 
in
December 2022 will 100% vest on 12/31/2027;
 
and so on.
 
7.3
Acceleration
 
of
 
Vesting
.
 
Notwithstanding
 
any
 
vesting
 
schedule
 
to
 
the
 
contrary,
 
a
Participant shall become one hundred percent (100%) vested upon the earlier of
 
the following events:
(a) attainment of age sixty
 
(60) with five (5) Years of Service
 
or (b) the Company’s Change in
 
Control.
Additionally,
 
the
 
Company
 
may
 
accelerate
 
a
 
Participant’s
 
vesting
 
at
 
any
 
time
 
in
 
its
 
sole
 
discretion
provided that such acceleration complies
 
with Section 409A.
7.4
Forfeitures
. Notwithstanding any other provision to the contrary herein, in the event a
Participant’s
 
employment is involuntarily
 
terminated for Cause,
 
no benefits of
 
any kind will
 
be due or
payable
 
by
 
the
 
Company
 
under
 
the
 
terms
 
of
 
this
 
Plan
 
from
 
the
 
Participant’s
 
Long-Term
 
Incentive
Contribution
 
Account,
 
for
 
amounts
 
contributed
 
on
 
or
 
after
 
the
 
date
 
of
 
this
 
amendment
 
and
restatement,
 
and
 
all
 
rights
 
of
 
the
 
Participant,
 
his
 
or
 
her
 
designated
 
Beneficiary,
 
executors,
 
or
administrators,
 
or
 
any
 
other
 
person,
 
to
 
receive
 
payments
 
thereof
 
shall
 
be
 
forfeited.
 
Additionally,
 
a
Participant will forfeit any portion
 
of an Account that is not vested upon Separation
 
from Service.
7.5
Taxes
 
and Withholding
.
 
Deferral
 
Amounts,
 
Long-Term
 
Incentive
 
Contributions,
 
and
Deemed Investment gains and/or losses on
 
each are subject to
 
the Federal Insurance Contribution Act
(FICA) and
 
the Federal
 
Unemployment Tax
 
Act (FUTA)
 
to the
 
extent provided
 
under applicable
 
Code
provisions, and
 
benefits payable under
 
the Plan are
 
subject to
 
all applicable
 
federal, state, city, income,
employment or
 
other taxes
 
as may
 
be required
 
to be
 
withheld or
 
paid. A
 
Participant is
 
solely responsible
for the payment of all individual tax liabilities
 
relating to any such benefits.
10
ARTICLE 8
PAYMENT OF ACCOUNT(S)
8.1
 
Payments in General.
 
(a)
Payment Events
.
(i)
 
A
 
Participant
 
(or,
 
in
 
the
 
event
 
of
 
the
 
death
 
of
 
the
 
Participant,
 
the
Participant’s
 
Beneficiary) shall
 
be entitled
 
to a
 
benefit equal
 
to the
 
Participant’s
 
vested
Account(s) balance as of the earliest payment
 
event to occur under Article 8.
(ii)
 
Unless the vested
 
balance of a Participant’s
 
In-Service Account
 
has been
paid earlier in accordance with
 
this Article 8, the Participant shall
 
be entitled to a
 
benefit
equal to such vested Account balance at the Specified
 
Time.
 
(b)
Source of
 
Payments
. The
 
Company will
 
pay, from its
 
general assets,
 
the portion
of any benefit
 
payable pursuant
 
to this Article
 
8 that is attributable
 
to a Participant’s
 
Account,
and all costs, charges and expenses relating thereto.
 
(c)
Calculation
 
of
 
Installment
 
Payments
.
 
The
 
amount
 
of
 
each
 
subsequent
installment shall
 
be determined
 
by dividing
 
the value
 
of the
 
Participant’s
 
Account(s) as
 
of the
December 31st preceding each installment by
 
the number of installments
 
remaining to be paid.
(By way of
 
example, if
 
the Participant is
 
to receive
 
payment in annual
 
installments over a
 
period
of five (5) years, the
 
first payment shall equal
 
1/5 of the Account balance.
 
The following year,
the payment shall be 1/4
 
of the Account balance. The
 
final installment payment shall
 
be equal
to the balance of the Account(s), calculated as of the applicable
 
anniversary date.) Any unpaid
Account balance
 
shall continue
 
to be
 
deemed to
 
be credited
 
or debited
 
with Deemed
 
Investment
gains
 
or
 
losses
 
pursuant
 
to
 
Article
 
6,
 
in
 
which
 
case
 
any
 
deemed
 
income,
 
gains,
 
losses,
 
or
expenses
 
shall
 
be
 
reflected
 
in
 
the
 
actual
 
payments.
 
Notwithstanding
 
any
 
election
 
of
installments, if a Participant’s vested Account balance at the due date of the first installment
 
is
ten thousand
 
dollars
 
($10,000.00)
 
or
 
less,
 
excluding
 
In-Service
 
Accounts,
 
payment
 
of
 
the
vested Account
 
balance shall
 
be made
 
instead in
 
one (1)
 
lump sum
 
payment, and no
 
installment
payments shall be available hereunder.
(d)
Changes in Timing or Form
 
of Distributions
. Upon the Company’s
 
approval,
a
 
Participant
 
may
 
delay
 
the
 
time
 
of
 
payment
 
or
 
change
 
the
 
form
 
of
 
payment
 
as
 
expressly
provided
 
under
 
this
 
Section
 
8.1(d)
 
and
 
Section
 
409A
 
(hereinafter,
 
a
 
“
Subsequent
 
Deferral
Election
”).
 
Notwithstanding
 
the foregoing,
 
a Subsequent
 
Deferral
 
Election
 
cannot
 
accelerate
any
 
payment.
 
A
 
Subsequent
 
Deferral
 
Election
 
which
 
delays
 
payment
 
or changes
 
the
 
form
 
of
payment is permitted only if all of the following
 
requirements are met:
 
(i)
 
The Subsequent Deferral Election
 
does not take effect
 
until at least
 
twelve
(12)
 
months
 
after
 
the
 
date
 
on
 
which
 
the
 
Subsequent
 
Deferral
 
Election
 
is
 
made
 
and
approved by the Plan Administrator;
(ii)
 
If
 
the
 
Subsequent
 
Deferral
 
Election
 
relates
 
to
 
a
 
payment
 
based
 
on
Separation from Service
 
or at a Specified
 
Time, the Subsequent
 
Deferral Election
 
must
result in
 
payment
 
being
 
deferred for
 
a period
 
of not
 
less than
 
five (5)
 
years
 
from the
date the first amount was scheduled to be
 
paid;
 
(iii)
 
If
 
the
 
Subsequent
 
Deferral
 
Election
 
relates
 
to
 
a
 
payment
 
at
 
a
 
Specified
Time, the Participant
 
must make the Subsequent
 
Deferral Election not
 
less than twelve
(12) months before the date the first amount was
 
scheduled to be paid.
 
For purposes of
 
applying this Section
 
8.1(d), installment payments shall
 
be treated
 
as a
 
“
single
payment.
”
 
Any
 
election
 
made
 
pursuant
 
to
 
this
 
Section
 
shall
 
be
 
made
 
on
 
such
 
Election
 
Forms
 
or
11
electronic media as is
 
required by the Plan Administrator,
 
in accordance with the
 
rules established by
the Plan Administrator and shall comply
 
with all requirements of Section 409A.
8.2
Separation from Service
. Except as otherwise stated in Section 8.6,
 
in the event of a
Participant’s Separation
 
from Service (other than for death), the Company shall pay to the Participant
his or
 
her vested
 
Account balance in
 
the form
 
of payment
 
elected by
 
the Participant pursuant
 
to Section
4.4(a).
 
Payment
 
shall
 
be
 
made
 
or
 
commence
 
six
 
(6)
 
months
 
following
 
the
 
date
 
of
 
Separation
 
from
Service
 
based
 
on
 
the
 
value
 
of the
 
Account
 
as
 
close
 
to
 
the payout
 
date as
 
administratively
 
feasible.
Subsequent installments,
 
if any,
 
shall be
 
paid on
 
January 15th
 
of each
 
calendar year
 
thereafter
 
and
calculated in
 
accordance with
 
Section 8.1(c).
 
In the
 
event of
 
a Participant’s
 
death after
 
installments
have commenced,
 
as applicable,
 
but prior
 
to the
 
receipt of
 
all installments
 
owed, the
 
Company shall
continue
 
to
 
pay
 
any
 
remaining
 
installments
 
to
 
the
 
Participant’s
 
Beneficiary
 
in
 
accordance
 
with
 
the
schedule the installments would have otherwise
 
been paid to the Participant.
8.3
Death
 
While
 
Employed
.
 
Except
 
as
 
otherwise
 
stated
 
in
 
Section
 
8.6,
 
in
 
the
 
event
 
a
Participant dies
 
while employed
 
by the
 
Company, the Company shall
 
pay to
 
the Participant’s Beneficiary
the Participant’s
 
vested Account
 
balance, in
 
the form of
 
payment elected
 
by the
 
Participant pursuant
to
 
Section
 
4.4(b).
 
Payment
 
shall
 
be
 
made
 
or
 
commence
 
six
 
(6)
 
months
 
following
 
the
 
date
 
of
 
the
Participant’s death
 
based on the
 
value of the
 
Account as close
 
to the payout
 
date as administratively
feasible.
 
Subsequent
 
installments,
 
if
 
any,
 
shall
 
be
 
paid
 
on
 
January 15th
 
of
 
each
 
calendar
 
year
thereafter and calculated in accordance with Section
 
8.1(c).
8.4
Payment at a Specified Time
. A Participant shall be paid the vested balance of an In-
Service
 
Account
 
in
 
the
 
time
 
and
 
form
 
of
 
payment
 
elected
 
by
 
the
 
Participant
 
on
 
his
 
or
 
her
 
timely
submitted Election Form
 
in accordance with Section
 
4.3. Payment
 
shall be made
 
or commence at the
Specified Time, with
 
subsequent installments, if any, paid on
 
the anniversary of the
 
Specified Date and
calculated in accordance with Section 8.1(c).
 
8.5
Payment due to an Unforeseeable Emergency
. A Participant shall have the
 
right to
request,
 
on
 
a
 
form
 
provided
 
by
 
the
 
Plan
 
Administrator,
 
a
 
payment
 
of
 
all
 
or
 
a
 
portion
 
of
 
his
 
or
 
her
vested
 
Deferral
 
Account
 
balance, in
 
a lump
 
sum payment
 
due to
 
an
 
Unforeseeable
 
Emergency.
 
The
Plan Administrator shall have the sole discretion to determine, in
 
accordance with the standards under
Section 409A, whether to grant such a
 
request and the amount to be paid pursuant to
 
such request.
 
(a)
Determination of Unforeseeable
 
Emergency
. Whether a Participant
 
is faced
with an Unforeseeable
 
Emergency permitting
 
a lump sum
 
payment is to
 
be determined
 
based
on the relevant facts
 
and circumstances of
 
each case, but, in
 
any case, a payment
 
on account
of an Unforeseeable Emergency may not be made to
 
the extent that such emergency is or may
be relieved
 
through reimbursement or
 
compensation from
 
insurance or
 
otherwise, by
 
liquidation
of the Participant’s
 
assets, to the extent
 
the liquidation of
 
such assets would
 
not cause severe
financial
 
hardship,
 
or
 
by
 
cessation
 
of
 
deferrals
 
under
 
the
 
Plan.
 
Payments
 
because
 
of
 
an
Unforeseeable Emergency
 
must be
 
limited to
 
the amount
 
reasonably necessary
 
to satisfy
 
the
emergency
 
need
 
(which
 
may
 
include
 
amounts
 
necessary
 
to
 
pay
 
any
 
federal,
 
state,
 
local,
 
or
foreign income taxes
 
or penalties reasonably anticipated to result
 
from the payment).
 
(b)
Payment of Account
. Payment
 
shall be made
 
within thirty (30)
 
days following
the determination by
 
the Plan Administrator
 
that a payment
 
will be
 
permitted under this
 
Section
8.5.
8.6
Prior
 
Plan
 
Distributions
.
 
For
 
Participants
 
enrolled
 
in
 
the
 
Plan
 
as
 
of the
 
date
 
of
 
this
amendment and restatement,
 
distributions for
 
Accounts established
 
prior to the
 
2022 Plan Year
 
shall
be made in accordance with the terms of
 
the Prior Plan. For purposes of clarity, those distributions are
as follows:
12
(a)
In General
. Upon entry into the Prior Plan, Participants were allowed to elect to
be
 
paid
 
either
 
(i)
 
upon
 
Separation
 
from
 
Service
 
or
 
(ii)
 
upon
 
the
 
earlier
 
of
 
Separation
 
from
Service or an
 
in-service payment
 
date elected
 
by the
 
Participant that
 
was the
 
first day
 
of any
month coincident with or next following attainment
 
of age sixty-five (65).
(b)
 
Separation
 
from
 
Service
 
prior
 
to
 
age
 
55
.
 
In
 
the
 
event
 
of
 
a
 
Participant’s
Separation from
 
Service (other
 
than for
 
death) prior
 
to age
 
fifty-five (55),
 
the Company
 
shall
pay to the Participant his
 
or her vested Account balance, based
 
on the value of the Account
 
as
close to the
 
payout date
 
as administratively
 
feasible, in a
 
lump sum,
 
six (6) months
 
following
the date of Separation from Service.
 
(c)
Separation from
 
Service on
 
or after
 
age 55
. In
 
the event
 
of a
 
Participant’s
Separation from Service on
 
or after age
 
fifty-five (55), the Company shall
 
pay to the
 
Participant
his
 
or
 
her
 
vested
 
Account
 
balance,
 
in
 
the
 
number
 
of
 
annual
 
installments
 
elected
 
by
 
the
Participant upon his
 
or her
 
initial enrollment into
 
the Plan.
 
Payment shall be
 
made or commence
six (6) months following the date
 
of Separation from Service based on the value of
 
the Account
as close to the
 
payout date as
 
administratively feasible.
 
Subsequent installments,
 
if any,
 
shall
be
 
paid
 
on
 
January 15th
 
of
 
each
 
calendar
 
year
 
thereafter
 
and
 
calculated
 
in
 
accordance
 
with
Section 8.1(c).
(d)
Death While
 
Employed
. In
 
the event
 
of a
 
Participant’s
 
death while
 
employed
by the
 
Company,
 
the Company
 
shall pay
 
to the
 
Participant his
 
or her
 
vested Account
 
balance
in the
 
number of
 
annual installments elected
 
by the
 
Participant upon his
 
or her
 
initial enrollment
into the Plan. Payment shall be made or commence six (6) months following the date of death,
based
 
on
 
the
 
value
 
of
 
the
 
Account
 
as
 
close
 
to
 
the
 
payout
 
date
 
as
 
administratively
 
feasible.
Subsequent installments, if any, shall be paid on January 15th of each calendar year thereafter
and calculated in accordance with Section 8.1(c).
(e)
Prior Plan
 
In-Service Payment
 
Date
. If
 
a Participant
 
elected to
 
be upon
 
the
earlier
 
of
 
Separation
 
from
 
Service
 
or
 
an
 
in-service
 
payment
 
date,
 
and
 
the
 
Participant
 
is
 
still
employed on the elected in-service payment date,
 
payment shall be made or commence
 
on the
date elected by
 
the Participant
 
based on the
 
value of
 
the Account
 
as close
 
to the
 
payout date
as administratively
 
feasible. Subsequent
 
installments, if
 
any,
 
shall be paid
 
on January 15th
 
of
each calendar year thereafter and calculated in
 
accordance with Section 8.1(c).
8.7
Permissible Accelerations
. Except as
 
specifically permitted herein or
 
in other sections
of
 
this
 
Plan,
 
no
 
acceleration
 
of
 
the
 
time
 
or
 
schedule
 
of
 
any
 
payment
 
may
 
be
 
made
 
hereunder.
Notwithstanding the foregoing,
 
payments may be
 
accelerated hereunder by the
 
Company (without any
direct or indirect election on the
 
part of any Participant), in accordance with the provisions of
 
Treasury
Regulation
 
§1.409A-3(j)(4)
 
and
 
any
 
subsequent
 
guidance
 
issued
 
by
 
the
 
United
 
States
 
Treasury
Department. Accordingly, payments may be accelerated, in
 
accordance with the
 
provisions of Treasury
Regulation §1.409A-3(j)(4)
 
in the following
 
circumstances: (a)
 
in limited cashouts
 
(but not in
 
excess
of the limit under
 
Code Section 402(g)(1)(B)); (b) to
 
pay employment-related taxes; or (c) to pay
 
any
taxes that may become
 
due at any time
 
that the Plan fails
 
to meet the requirements
 
of Section 409A
(but in
 
no case
 
shall such
 
payments
 
exceed the
 
amount
 
to be
 
included
 
in income
 
as a
 
result
 
of the
failure to comply with the requirements of Section
 
409A).
8.8
Specified Employee of a Public
 
Company
. If a Participant is
 
considered a “
specified
employee
” of a public company, pursuant to Code Section 409A(a)(2)(B)(i), then solely to the extent
necessary to
 
avoid
 
penalties
 
under Section
 
409A,
 
payments
 
to be
 
made as
 
a result
 
of a
 
Separation
from Service under
 
this Article may
 
not commence
 
earlier than
 
six (6) months
 
after the
 
Participant’s
Separation from
 
Service. In
 
the event
 
a distribution
 
is delayed
 
pursuant to
 
this paragraph,
 
any amounts
otherwise payable during the six months shall be accumulated and paid in
 
a lump sum on the first
 
day
of the seventh month following Separation
 
from Service.
13
8.9
Rights of Participant and Beneficiary
.
(a)
Creditor
 
Status
 
of
 
Participant
 
and
 
Beneficiary
.
 
The
 
Plan
 
constitutes
 
the
unfunded, unsecured promise
 
of the
 
Company to make payments
 
to a Participant or
 
Beneficiary
in
 
the
 
future
 
and
 
shall
 
be
 
a
 
liability
 
solely
 
against
 
the
 
general
 
assets
 
of
 
the
 
Company.
 
The
Company shall
 
not be
 
required to
 
segregate, set
 
aside or
 
escrow any
 
amounts for
 
the benefit
of a Participant
 
or Beneficiary.
 
A Participant
 
and Beneficiary shall
 
have the
 
status of a
 
general
unsecured creditor
 
of the Company
 
and may
 
look only to
 
the Company
 
and its general
 
assets
for payment of benefits under the Plan.
(b)
Investments
.
 
In
 
its
 
sole
 
discretion,
 
the
 
Company
 
may
 
acquire
 
insurance
policies, annuities
 
or other
 
financial vehicles
 
for the
 
purpose of
 
providing
 
future assets
 
of the
Company
 
to
 
meet
 
its
 
anticipated
 
liabilities
 
under
 
the
 
Plan.
 
Such
 
policies,
 
annuities
 
or
 
other
investments
 
shall at
 
all
 
times be
 
and
 
remain unrestricted
 
general
 
property
 
and assets
 
of the
Company.
 
A Participant
 
and his or
 
her designated
 
Beneficiary shall
 
have no
 
rights, other than
as general
 
creditors,
 
with respect
 
to such
 
policies,
 
annuities
 
or other
 
acquired assets.
 
In the
event
 
that
 
the
 
Company
 
purchases
 
an
 
insurance
 
policy
 
or
 
policies
 
insuring
 
the
 
life
 
of
 
a
Participant or
 
Employee, to
 
allow the
 
Company to
 
recover or
 
meet the
 
cost of
 
providing benefits,
in whole
 
or in
 
part, hereunder,
 
no Participant
 
or Beneficiary
 
shall have
 
any rights
 
whatsoever
in said policy or the proceeds therefrom. The Company shall
 
be the sole owner and beneficiary
of any
 
such insurance
 
policy
 
or property
 
and
 
shall
 
possess
 
and
 
may
 
exercise
 
all
 
incidents
 
of
ownership
 
therein.
 
A
 
Participant
 
further
 
agrees
 
to
 
sign
 
any
 
forms
 
and
 
consent
 
necessary
 
for
such
 
life
 
insurance
 
including
 
the
 
consent
 
under
 
Code
 
Section
 
101(j)
 
for
 
the
 
Company
 
to
 
be
owner
 
and
 
beneficiary
 
of
 
the
 
insurance
 
on
 
the
 
Participant’s
 
life.
 
If
 
the
 
Company
 
chooses
 
to
obtain insurance
 
on the
 
life of
 
a Participant
 
in connection
 
with its
 
obligations under
 
this Plan,
the
 
Participant
 
hereby
 
agrees
 
to
 
take
 
such
 
physical
 
examinations
 
and
 
to
 
truthfully
 
and
completely
 
supply
 
such
 
information
 
as
 
may
 
be
 
required
 
by
 
the
 
Company
 
or
 
the
 
insurance
company designated by the Company. No insurance policy with regard to any director,
 
“
highly
compensated employee,
” or “
highly compensated individual,
” as defined in Code Section
101(j)
 
shall
 
be
 
acquired
 
before
 
satisfying
 
the
 
Code
 
Section
 
101(j)
 
“
Notice
 
and
 
Consent
”
requirements.
8.10
Discharge
 
of Obligations
.
 
The
 
payment
 
to a
 
Participant
 
or his
 
or her
 
Beneficiary
 
of
the
 
Account
 
balance
 
in
 
full
 
shall
 
discharge
 
all
 
obligations
 
of
 
the
 
Company
 
to
 
such
 
Participant
 
or
Beneficiary under the Plan.
ARTICLE 9
BENEFICIARY DESIGNATION
9.1
Designation of Beneficiaries
.
(a)
 
Each
 
Participant
 
may
 
designate
 
any
 
person
 
or
 
persons
 
(who
 
may
 
be
 
named
contingently
 
or
 
successively)
 
to
 
receive
 
any
 
benefits
 
payable
 
under
 
the
 
Plan
 
upon
 
the
Participant’s
 
death, and
 
the designation
 
may be
 
changed from time
 
to time
 
by the Participant
by
 
filing
 
a
 
new
 
designation.
 
Each
 
designation
 
will
 
revoke
 
all
 
prior
 
designations
 
by
 
the
 
same
Participant, shall
 
be in
 
the form
 
prescribed by
 
the Company,
 
and shall
 
be effective
 
only when
signed by the Participant and filed with
 
the Company during the Participant’s
 
lifetime.
(b)
 
In the
 
absence
 
of a
 
valid
 
Beneficiary designation,
 
or if,
 
at the
 
time any
 
benefit
payment is due to a Beneficiary, there is no living Beneficiary validly named by the Participant,
the Company shall pay the
 
benefit payment to the Participant’s spouse, if then
 
living, and if the
spouse is not then
 
living to the
 
executors or administrators
 
of the estate
 
of the Participant.
 
In
determining
 
the
 
existence
 
or
 
identity
 
of
 
anyone
 
entitled
 
to
 
a
 
benefit
 
payment,
 
the
 
Company
may rely
 
conclusively
 
upon information
 
supplied by
 
the Participant’s
 
personal representative,
executor,
 
or administrator.
14
(c)
 
A
 
Participant’s
 
designation
 
of
 
a
 
Beneficiary
 
will
 
not
 
be
 
revoked
 
or
 
changed
automatically
 
by
 
any
 
future
 
marriage
 
or
 
divorce.
 
Should
 
the
 
Participant
 
wish
 
to
 
change
 
the
designated Beneficiary in the event of a future marriage or divorce, the Participant
 
will have to
do so by means of filing a new designation.
 
(d)
 
If a question arises as to the existence or identity of anyone entitled to receive a
death benefit payment
 
under the Plan,
 
or if a
 
dispute arises
 
with respect
 
to any death
 
benefit
payment under
 
the Plan,
 
the Company
 
may distribute
 
the payment
 
to the Participant’s
 
estate
without
 
liability
 
for
 
any
 
tax
 
or
 
other
 
consequences,
 
or
 
may
 
take
 
any
 
other
 
action
 
which
 
the
Company deems to be appropriate.
9.2
Information to be furnished by Participants and Beneficiaries
; Inability to Locate
Participants or Beneficiaries. Any communication,
 
statement or notice addressed to a Participant
 
or to
a Beneficiary at his or her
 
last post office address as shown on the
 
Company’s records shall be binding
on
 
the
 
Participant
 
or
 
Beneficiary
 
for
 
all
 
purposes
 
of
 
the
 
Plan.
 
The
 
Company
 
shall
 
not
 
be
 
obliged
 
to
search for any Participant
 
or Beneficiary beyond
 
the sending of a
 
registered letter to
 
such last known
address.
9.3
Facility of
 
Payment
. If
 
the Plan
 
Administrator determines in
 
its discretion
 
that a
 
benefit
is
 
to
 
be
 
paid
 
to
 
a
 
minor,
 
to
 
a
 
person
 
legally
 
declared
 
incompetent,
 
or
 
to
 
a
 
person
 
legally
 
deemed
incapable
 
of
 
handling
 
the
 
disposition
 
of
 
that
 
person’s
 
property,
 
the
 
Plan
 
Administrator
 
may
 
direct
payment of such benefit to
 
the guardian, legal representative or
 
person having care or custody
 
of such
minor,
 
incompetent
 
person
 
or
 
incapable
 
person.
 
The
 
Plan
 
Administrator
 
may
 
require
 
proof
 
of
incompetence, minority
 
or guardianship
 
as it may
 
deem appropriate
 
prior to
 
payment of
 
the benefit.
Any distribution
 
of a
 
benefit shall
 
be a
 
distribution for
 
the account
 
of the
 
Participant and the
 
Beneficiary,
as
 
the
 
case
 
may
 
be,
 
and
 
shall
 
be
 
a
 
complete
 
discharge
 
of
 
any
 
liability
 
under
 
the
 
Plan
 
for
 
such
distribution amount.
ARTICLE 10
PLAN AMENDMENT
10.1
Right to Amend
. The Board may amend the
 
Plan, at any time and with
 
respect to any
provisions
 
hereof,
 
and
 
all
 
parties
 
hereto
 
or
 
claiming
 
any
 
interest
 
hereunder
 
shall
 
be
 
bound
 
by
 
such
amendment; provided, however,
 
that no such amendment
 
shall deprive a Participant
 
or a Beneficiary
of a benefit amount accrued hereunder prior to the date of the amendment without written consent of
the Participant or Beneficiary.
 
10.2
Amendments Required
 
By Law
. Notwithstanding
 
the provisions of
 
Section 10.1, the
Plan may be amended
 
by the Company at any
 
time, retroactively if required, if
 
found necessary, in the
opinion of the
 
Company,
 
without written
 
consent of Participants
 
and Beneficiaries,
 
in order to
 
ensure
that the
 
Plan is
 
characterized
 
as a
 
“
top-hat
” plan
 
of deferred
 
compensation maintained
 
for a
 
select
group of
 
management or
 
highly compensated
 
employees as
 
described under
 
ERISA sections
 
201(2),
301(a)(3), and 401(a)(1),
 
to conform the
 
Plan to the provisions
 
of Section 409A, and
 
to conform the
Plan to the
 
requirements of any other
 
applicable law (including but
 
not limited to
 
ERISA and the Code).
 
ARTICLE 11
PLAN TERMINATION
11.1
Company’s Right to Suspend Plan
.
 
The Board reserves
 
the right to suspend
 
the operation of
 
the Plan for a
 
fixed or indeterminate
period of time, in its sole discretion.
 
In the event of a suspension of the Plan, during the period of the
suspension, the Plan Administrator
 
shall continue all aspects
 
of the Plan other than
 
crediting of Long-
Term
 
Incentive Contributions, and Deferral
 
Amounts shall be suspended effective
 
with the first day of
the Plan
 
Year
 
following the
 
date the
 
Plan is
 
suspended. Payments
 
of distributions
 
will continue
 
to be
made during the period of the suspension in accordance
 
with Article 8.
15
11.2
Plan
 
Termination
 
and
 
Liquidation
 
under
 
Section
 
409A
.
 
The
 
Board
 
reserves
 
the
right to terminate the
 
Plan at any
 
time without the
 
consent of Participants.
 
Notwithstanding anything
to the
 
contrary
 
in Section
 
11.1, any
 
acceleration
 
of the
 
payment
 
of benefits
 
due to
 
Plan termination
and
 
liquidation
 
shall
 
comply
 
with
 
the
 
following
 
subparagraphs,
 
but
 
only
 
as
 
permitted
 
in
 
accordance
with Section 409A
 
and Treasury Regulation §1.409A-3(j)(4)(ix). The Plan Administrator may
 
distribute
all
 
Participants’
 
vested
 
Account
 
balances,
 
determined
 
as
 
of the
 
date
 
of
 
the
 
termination
 
of
 
the
 
Plan,
subject to the terms below:
(a)
 
Upon the
 
Board’s
 
termination
 
of this
 
and all
 
other arrangements
 
that would
 
be
aggregated
 
with
 
this
 
Plan
 
pursuant
 
to
 
Treasury
 
Regulation
 
§1.409A-1(c)
 
if
 
a
 
Participant
participated
 
in
 
such
 
arrangements
 
(“
Similar
 
Arrangements
”),
 
provided
 
that:
 
(i)
 
the
termination does not occur
 
proximate to a downturn in
 
the financial health of
 
the Company; (ii)
all termination
 
distributions
 
are made
 
no
 
earlier than
 
twelve
 
(12) months
 
and no
 
later
 
than
twenty-four (24) months following such termination; and (iii) the Company does not
 
adopt any
new
 
arrangement
 
that
 
would
 
be
 
a
 
Similar
 
Arrangement
 
for
 
a
 
minimum
 
of
 
three
 
(3)
 
years
following the
 
date the
 
Company takes
 
all necessary
 
action to
 
irrevocably terminate
 
and liquidate
the Plan.
(b)
 
Upon the Company’s dissolution taxed under Code Section 331, or with approval
of a bankruptcy
 
court, provided
 
that the
 
amounts deferred
 
under the
 
Plan are
 
included in
 
the
Participant’s
 
gross income
 
in the latest
 
of: (i) the
 
calendar year
 
in which
 
the Plan terminates;
(ii) the calendar
 
year in which
 
the amount is
 
no longer subject
 
to a substantial
 
risk of
 
forfeiture;
or (iii) the first calendar year in which the
 
payment is administratively practicable;
 
or
(c)
 
Within thirty
 
(30) days before
 
or twelve (12)
 
months after a
 
Change in Control,
provided
 
that
 
all
 
distributions
 
are
 
made
 
no
 
later
 
than
 
twelve
 
(12)
 
months
 
following
 
such
termination of the
 
Plan and further
 
provided that
 
all the Company’s
 
Similar Arrangements
 
are
terminated so
 
the Participant
 
and all
 
participants in
 
the Similar
 
Arrangements
 
are required
 
to
receive all
 
amounts of
 
compensation deferred
 
under the
 
terminated arrangements within
 
twelve
(12) months of the termination of the Plan.
ARTICLE 12
PLAN ADMINISTRATION
12.1
General
 
Plan
 
Administration
.
 
The
 
Board
 
or its
 
designee
 
shall
 
appoint
 
a Committee
consisting of
 
not less
 
than three
 
(3) persons
 
to administer
 
the Plan.
 
Any member
 
of the
 
Committee
may at any time
 
be removed, with
 
or without cause,
 
and his or her
 
successor appointed by
 
the Chief
Executive Officer of
 
the Company or
 
his or
 
her designee, and
 
any vacancy caused
 
by death,
 
resignation
or other
 
reason shall
 
be filled
 
by the
 
Chief Executive
 
Officer of
 
the Company
 
or
 
his or her
 
designee.
The Committee shall
 
be the Plan
 
Administrator and in general
 
shall be responsible
 
for the management
and administration of the Plan. The Committee shall
 
have full power to administer the Plan in all of its
details, subject to
 
applicable requirements
 
of law.
 
No member of
 
the Committee who
 
is an Employee
of the Company shall receive compensation for
 
his or her services
 
to the Plan. The fiscal records
 
of the
Plan shall be maintained on the basis of the Plan
 
Year.
12.2
Plan
 
Administrator
 
Authority
.
 
The
 
Plan
 
Administrator
 
shall
 
enforce
 
this
 
Plan
 
in
accordance with its terms,
 
shall be charged with
 
the general administration of this
 
Plan, and shall have
all powers necessary to accomplish its purposes, including, but not by way of limitation, the
 
following:
(a)
 
To
 
construe and interpret
 
the terms
 
and provisions
 
of this Plan
 
and to
 
reconcile
any inconsistency,
 
in its sole and absolute discretion;
(b)
 
To
 
compute and certify the
 
amount payable to
 
Participants and Beneficiaries;
 
to
determine the time and manner in which such
 
benefits are paid; and to determine the
 
amount
of any withholding taxes to be deducted;
16
(c)
 
To maintain all records that may be
 
necessary for the administration of
 
this Plan;
(d)
 
To
 
provide
 
for the
 
disclosure
 
of all
 
information
 
and the
 
filing or
 
provision
 
of all
reports
 
and
 
statements
 
to Participants,
 
Beneficiaries,
 
and
 
governmental
 
agencies
 
as shall
 
be
required by law;
(e)
 
To make and publish such rules for the regulation of this Plan and
 
procedures for
the administration of this Plan so long as no such
 
rules or procedures are not inconsistent with
the terms hereof;
(f)
 
To
 
administer this Plan’s claims
 
procedures;
(g)
 
To
 
approve the forms and procedures
 
for use under this Plan; and
(h)
 
To
 
employ
 
such
 
persons
 
or
 
organizations,
 
including
 
without
 
limitation,
 
actuaries,
attorneys,
 
accountants,
 
independent
 
fiduciaries,
 
recordkeepers,
 
and
 
administrative
consultants, to render advice or
 
perform services with respect to
 
the responsibilities of the Plan
Administrator under the Plan.
 
12.3
 
Committee Procedures
.
The
 
Committee
 
may
 
act
 
at
 
a
 
meeting
 
or
 
in
 
writing
 
without
 
a
 
meeting.
 
The
 
Committee
 
may
adopt such
 
by-laws
 
and regulations
 
as it
 
deems desirable
 
for the
 
conduct
 
of its
 
affairs. All
 
decisions
shall
 
be
 
made
 
by
 
majority
 
vote
 
(whether
 
in
 
a
 
meeting
 
or
 
by
 
written
 
action).
 
No
 
member
 
of
 
the
Committee
 
who
 
is
 
at
 
any
 
time
 
a
 
Participant
 
in
 
this
 
Plan
 
shall
 
vote
 
in
 
a
 
decision
 
of
 
the
 
Committee
(whether in
 
a meeting
 
or by
 
written action)
 
made specifically
 
and uniquely
 
with respect
 
to such
 
member
of the
 
Committee
 
regarding
 
amount,
 
payment,
 
timing,
 
form
 
or
 
other
 
aspect
 
of the
 
benefits
 
of such
Committee member under this Plan.
12.4
Indemnification of Committee Members
The Company
 
shall indemnify
 
and hold
 
harmless each
 
member of
 
the Committee
 
against any
and
 
all
 
liability,
 
claims,
 
damages
 
and
 
expense
 
(including
 
all
 
expenses
 
reasonably
 
incurred
 
in
 
the
Committee member’s
 
defense in
 
the event
 
that the
 
Company fails
 
to provide
 
such defense
 
upon the
Committee Member’s
 
written request)
 
which the
 
Committee member
 
may incur
 
while acting
 
in good
faith in the administration of the Plan.
12.5
Compliance with Section 409A
.
(a)
 
Notwithstanding
 
anything
 
contained
 
herein
 
to
 
the
 
contrary,
 
the
 
interpretation
and distribution of Participants’ benefits under
 
the Plan shall be made in a manner and at such
times
 
as
 
to
 
comply
 
with
 
all
 
applicable
 
provisions
 
of
 
Section
 
409A
 
and
 
the
 
regulations
 
and
guidance
 
promulgated
 
thereunder,
 
or
 
an
 
exception
 
or
 
exclusion
 
therefrom
 
to
 
avoid
 
the
imposition
 
of
 
any
 
accelerated
 
or
 
additional
 
taxes.
 
Any
 
defined
 
terms
 
shall
 
be
 
construed
consistent with Section 409A and any terms not specifically defined shall have the meaning set
forth in Section 409A.
(b)
 
The intent of this Section is
 
to ensure that the Participants are not
 
subject to any
tax liability
 
or interest
 
penalty,
 
by reason
 
of the
 
application
 
of Code
 
Section 409A(a)(1)
 
as a
result of any failure to comply with all the requirements of Section 409A, and this Section shall
be interpreted
 
in light
 
of,
 
and consistent
 
with, such
 
requirements. This
 
Section shall
 
apply to
distributions under
 
the Plan,
 
but only
 
to the
 
extent
 
required
 
in order
 
to avoid
 
taxation
 
of,
 
or
interest
 
penalties
 
on,
 
a
 
Participant
 
under
 
Section
 
409A.
 
These
 
rules
 
shall
 
also
 
be
 
deemed
modified
 
or
 
supplemented
 
by
 
such
 
other
 
rules
 
as
 
may
 
be
 
necessary,
 
from
 
time
 
to
 
time,
 
to
comply with Section 409A.
17
ARTICLE 13
CLAIMS PROCEDURES
13.1
Claims
 
Procedure
.
 
This
 
Article
 
is
 
based
 
on
 
Department
 
of
 
Labor
 
Regulation
 
Section
2560.503-1.
 
If any
 
provision
 
of this
 
Article
 
conflicts with
 
the requirements
 
of those
 
regulations, the
requirements of those
 
regulations will prevail. A
 
Claimant who has
 
not received benefits
 
under the Plan
that he or she believes should be paid
 
shall make a claim for such benefits as
 
follows:
 
(a)
Initiation
 
- Written Claim. The Claimant
 
initiates a claim by
 
submitting a written
request
 
for
 
the
 
benefits
 
to
 
the
 
Plan
 
Administrator.
 
The
 
Plan
 
Administrator
 
will,
 
upon
 
written
request of
 
a Claimant,
 
make available
 
copies of
 
all forms
 
and instructions
 
necessary to
 
file a
claim for benefits or advise the Claimant where
 
such forms and instructions may be obtained.
 
(b)
Timing of
 
Company Response
. The
 
Plan Administrator
 
shall respond
 
to such
Claimant within ninety (90) days
 
after receiving the claim. If
 
the Plan Administrator determines
that
 
special
 
circumstances
 
require
 
additional
 
time
 
for
 
processing
 
the
 
claim,
 
the
 
Plan
Administrator
 
can
 
extend
 
the response
 
period
 
by an
 
additional
 
ninety
 
(90)
 
days
 
by notifying
the Claimant in writing
 
prior to the end
 
of the initial
 
90-day period that
 
an additional period is
required.
 
Any
 
notice
 
of
 
extension
 
must
 
set
 
forth
 
the
 
special
 
circumstances
 
requiring
 
an
extension of time and the date by which the
 
Plan Administrator expects to render its
 
decision.
(c)
 
Notice of
 
Decision
. If
 
the Plan
 
Administrator
 
denies
 
the claim,
 
in whole
 
or in
part,
 
the
 
Plan
 
Administrator
 
shall
 
notify
 
the
 
Claimant
 
in
 
writing
 
of
 
such
 
denial.
 
The
 
Plan
Administrator
 
shall
 
write
 
the
 
notification
 
in
 
a
 
manner
 
calculated
 
to
 
be
 
understood
 
by
 
the
Claimant. The notification shall set forth:
 
(i)
 
The specific reasons for the denial;
 
(ii)
 
A reference
 
to
 
the
 
specific
 
provisions
 
of the
 
Plan
 
on which
 
the
 
denial
 
is
based;
(iii)
 
A description
 
of any
 
additional information
 
or material
 
necessary for
 
the
Claimant to perfect the claim and an explanation
 
of why it is needed;
 
(iv)
 
An
 
explanation
 
of
 
the
 
Plan's
 
review
 
procedures
 
and
 
the
 
time
 
limits
applicable to such procedures; and
 
(v)
 
A
 
statement
 
of
 
the
 
Claimant’s
 
right
 
to
 
bring
 
a
 
civil
 
action
 
under
 
ERISA
Section 502(a) following an adverse benefit determination
 
on review.
13.2
 
Review Procedure
. If the Plan Administrator denies the claim,
 
in whole or in part, the
Claimant shall have
 
the opportunity
 
for a full
 
and fair review
 
by the
 
Plan Administrator
 
of the denial,
as follows:
 
(a)
Initiation
 
- Written
 
Request.
 
To
 
initiate
 
the review,
 
the
 
Claimant,
 
within
 
sixty
(60)
 
days
 
after
 
receiving
 
the
 
Plan
 
Administrator’s
 
notice
 
of
 
denial,
 
must
 
file
 
with
 
the
 
Plan
Administrator a written request for review.
 
(b)
Additional
 
Submissions
 
-
 
Information
 
Access.
 
The
 
Claimant
 
shall
 
then
 
have
the opportunity
 
to submit
 
written comments,
 
documents, records
 
and other
 
information relating
to the claim.
 
The Plan Administrator shall
 
also provide the Claimant, upon
 
request and free of
charge,
 
reasonable
 
access
 
to,
 
and
 
copies
 
of,
 
all
 
documents,
 
records
 
and
 
other
 
information
relevant (as defined in applicable ERISA
 
regulations) to the Claimant’s
 
claim for benefits.
18
(c)
Considerations on
 
Review
. In
 
considering the
 
review,
 
the Plan
 
Administrator
shall take into
 
account all comments,
 
documents, records and
 
other information submitted
 
by
the Claimant relating
 
to the claim,
 
without regard to
 
whether such information
 
was submitted
or considered in the initial benefit determination.
 
(d)
Timing of Company Response
. The Plan Administrator shall
 
respond in writing
to
 
such
 
Claimant
 
within
 
sixty
 
(60)
 
days
 
after
 
receiving
 
the
 
request
 
for
 
review.
 
If
 
the
 
Plan
Administrator determines that
 
special circumstances require additional
 
time for processing the
claim, the Plan
 
Administrator can
 
extend the response
 
period by an
 
additional sixty
 
(60) days
by
 
notifying
 
the
 
Claimant
 
in
 
writing,
 
prior
 
to
 
the
 
end
 
of
 
the
 
initial
 
60-day
 
period
 
that
 
an
additional period is
 
required. The notice
 
of extension must
 
set forth the
 
special circumstances
and the date by which the Plan Administrator
 
expects to render its decision.
 
(e)
Notice of Decision
. The
 
Plan Administrator
 
shall notify
 
the Claimant
 
in writing
of
 
its
 
decision
 
on
 
review.
 
The
 
Plan
 
Administrator
 
shall
 
write
 
the
 
notification
 
in
 
a
 
manner
calculated to be understood by the Claimant.
 
The notification shall set forth:
(i)
 
The specific reasons for the denial;
 
(ii)
 
A reference
 
to
 
the
 
specific
 
provisions
 
of the
 
Plan
 
on which
 
the
 
denial
 
is
based;
(iii)
 
A
 
statement
 
that
 
the
 
Claimant
 
is
 
entitled
 
to
 
receive,
 
upon
 
request
 
and
free of
 
charge,
 
reasonable
 
access
 
to,
 
and copies
 
of,
 
all documents,
 
records
 
and
 
other
information relevant (as defined
 
in applicable ERISA regulations)
 
to the Claimant's claim
for benefits; and
 
(iv)
 
A
 
statement
 
of
 
the
 
Claimant's
 
right
 
to
 
bring
 
a
 
civil
 
action
 
under
 
ERISA
Section 502(a).
 
13.3
Calculation of Time Periods
. For purposes of the
 
time periods specified in this Article,
the period
 
of time
 
during which
 
a benefit
 
determination
 
is required
 
to be
 
made begins
 
at the
 
time a
claim
 
is
 
filed
 
in
 
accordance
 
with
 
the
 
Plan
 
procedures
 
without
 
regard
 
to
 
whether
 
all
 
the
 
information
necessary to
 
make a
 
decision accompanies
 
the claim.
 
If a
 
period of
 
time is
 
extended due
 
to a
 
Claimant's
failure
 
to
 
submit
 
all
 
information
 
necessary,
 
the
 
period
 
for
 
making
 
the
 
determination
 
shall
 
be
 
tolled
from the date the notification is sent to the Claimant
 
until the date the Claimant responds.
13.4
Exhaustion of Remedies
.
 
A Claimant must follow the
 
claims review procedures under
this Plan and exhaust his or her administrative
 
remedies before taking any further action with respect
to a claim for benefits.
13.5
Failure of Plan
 
to Follow Procedures
. If
 
the Plan fails
 
to establish or
 
follow the claims
procedures required by this Article, a Claimant
 
shall be deemed to have exhausted
 
the administrative
remedies available
 
under the
 
Plan and
 
shall be
 
entitled to
 
immediately pursue
 
any available
 
remedy
under
 
ERISA
 
Section
 
502(a)
 
on
 
the
 
basis
 
that
 
the
 
Plan
 
has
 
failed
 
to
 
provide
 
a
 
reasonable
 
claims
procedure that would yield
 
a decision on the
 
merits of the claim.
 
The Claimant may
 
request a written
explanation of the violation from the Plan, and the Plan must provide such explanation within ten (10)
days,
 
including
 
a
 
specific
 
description
 
of
 
its
 
bases,
 
if
 
any,
 
for
 
asserting
 
that
 
the
 
violation
 
should
 
not
cause the administrative
 
remedies to be deemed
 
exhausted. If a
 
court rejects the
 
Claimant’s request
for immediate
 
review on
 
the basis
 
that the
 
Plan met
 
the standards
 
for the
 
exception, the
 
claim shall
be
 
considered
 
as
 
re-filed
 
on
 
appeal
 
upon
 
the
 
Plan’s
 
receipt
 
of
 
the
 
decision
 
of
 
the
 
court.
 
Within
 
a
reasonable time after the receipt of the decision, the Plan shall provide the claimant with notice of the
resubmission.
 
19
ARTICLE 14
THE TRUST
14.1
Establishment of Trust
. The Company may establish a grantor trust (the
 
“
Trust
”), of
which the Company is the grantor,
 
within the meaning of subpart E, part I, subchapter J,
 
subtitle A of
the Code, to pay benefits under this Plan. To
 
the extent such benefits are not paid from the Trust,
 
the
benefits shall
 
be paid
 
from the
 
general
 
assets of
 
the Company.
 
The Trust
 
(if any)
 
shall be
 
a grantor
trust
 
similar
 
to
 
the
 
terms
 
of
 
the
 
model
 
trust
 
as
 
described
 
in
 
IRS
 
Revenue
 
Procedure
 
92-64,
 
I.R.B.
1992-33, as same
 
may be amended
 
or modified from
 
time to time.
 
If the Company
 
establishes a Trust,
the
 
assets
 
of
 
the
 
Trust
 
will
 
be
 
subject
 
to
 
the
 
claims
 
of
 
the
 
Company’s
 
creditors
 
in
 
the
 
event
 
of
 
its
insolvency. Except
 
as may otherwise be provided under the Trust, the Company shall not be obligated
to set
 
aside, earmark,
 
or escrow
 
any funds
 
or other
 
assets to
 
satisfy its
 
obligations under
 
this Plan,
and a Participant and/or his or her
 
designated Beneficiaries shall not have any property interest in any
specific assets of
 
the Company other
 
than the unsecured
 
right to receive
 
payments from the
 
Company,
as provided in this Plan.
14.2
Interrelationship of the Plan and the Trust
. The provisions of this Plan shall govern
the rights of a Participant
 
to receive distributions pursuant
 
to this Plan. The provisions
 
of the Trust
 
(if
established)
 
shall
 
govern
 
the rights
 
of a
 
Participant
 
and the
 
creditors
 
of the
 
Company
 
to the
 
assets
transferred to the Trust. The Company and each Participant shall at all times
 
remain liable to carry out
its obligations under this
 
Plan. The Company’s
 
obligations under this Plan
 
may be satisfied with
 
Trust
assets distributed pursuant to the terms of the
 
Trust.
14.3
Contribution to the Trust
. Amounts may be contributed by the Company to the Trust
at the sole discretion of the Company.
ARTICLE 15
MISCELLANEOUS
15.1
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.
 
15.2
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
 
hereof,
 
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,
 
be transferable by
 
operation of law
in the event of
 
a Participant’s
 
or any other
 
person’s bankruptcy
 
or insolvency,
 
or be transferable
 
to a
spouse as a result
 
of a property
 
settlement or otherwise.
 
If any Participant,
 
Beneficiary,
 
or successor
in interest
 
is adjudicated
 
bankrupt or
 
purports to
 
commute, sell,
 
assign, transfer,
 
pledge, anticipate,
mortgage
 
or
 
otherwise
 
encumber
 
transfer,
 
hypothecate,
 
alienate,
 
or
 
convey
 
in
 
advance
 
of
 
actual
receipt,
 
the
 
amount,
 
if
 
any,
 
payable
 
hereunder,
 
or
 
any
 
part
 
thereof,
 
the
 
Plan
 
Administrator,
 
in
 
its
discretion, may cancel such distribution
 
or payment (or any part
 
thereof) to or for the benefit of such
Participant, Beneficiary,
 
or successor in interest in such manner as the Plan Administrator shall direct.
15.3
Not
 
a
 
Contract
 
of
 
Employment
.
 
The
 
terms
 
and
 
conditions
 
of
 
this
 
Plan
 
shall
 
not
 
be
deemed to constitute a contract of employment between the Company and any Participant. Nothing in
this Plan shall be
 
deemed to give
 
a Participant
 
the right to be
 
retained in the
 
service of the Company
as an Employee
 
or otherwise, or
 
to interfere with
 
the right of
 
the Company
 
to discipline
 
or discharge
the Participant at any time.
 
20
15.4
Governing Law
. The
 
Plan shall be
 
administered, construed and governed
 
in all respects
under and by the laws of the State of Mississippi, without reference to the principles of conflicts of law
(except and to the extent preempted by
 
applicable federal law).
 
15.5
Notice
.
 
Any
 
notice,
 
consent
 
or
 
demand
 
required
 
or
 
permitted
 
to
 
be
 
given
 
under
 
the
provisions of this Plan shall
 
be in writing and shall
 
be signed by the party
 
giving or making the
 
same.
 
If such
 
notice, consent
 
or demand
 
is mailed,
 
it shall
 
be sent
 
by United
 
States certified
 
mail, postage
prepaid, addressed
 
to the
 
addressee’s
 
last known
 
address as
 
shown on
 
the records
 
of the
 
Company.
The date
 
of
 
such mailing
 
shall
 
be
 
deemed
 
the
 
date
 
of notice
 
consent
 
or demand.
 
Any
 
person
 
may
change
 
the
 
address
 
to
 
which
 
notice
 
is
 
to
 
be
 
sent
 
by
 
giving
 
notice
 
of
 
the
 
change
 
of
 
address
 
in
 
the
manner aforesaid.
15.6
Coordination
 
with
 
Other
 
Benefits
.
 
The
 
benefits
 
provided
 
for
 
a
 
Participant
 
or
 
a
Participant’s
 
Beneficiary
 
under
 
this
 
Plan
 
are
 
in
 
addition
 
to
 
any
 
other
 
benefits
 
available
 
to
 
such
Participant under any
 
other plan or
 
program for employees of
 
the Company. This Plan shall
 
supplement
and shall not
 
supersede, modify,
 
or amend any
 
other such plan
 
or program except
 
as may otherwise
be expressly provided herein.
15.7
Unclaimed Benefits
. In the case of
 
a benefit payable
 
on behalf of a
 
Participant, if the
Plan Administrator is unable to
 
locate such Participant or his or
 
her Beneficiary after reasonable efforts
have been
 
undertaken
 
by the
 
Plan Administrator
 
to locate
 
such party(ies),
 
such Plan
 
benefit may
 
be
forfeited to the Company upon the Plan Administrator’s determination. Notwithstanding the foregoing,
if,
 
subsequent
 
to
 
any
 
such
 
forfeiture,
 
the
 
Participant
 
or
 
Beneficiary
 
to
 
whom
 
such
 
Plan
 
benefit
 
is
payable makes a valid claim for such Plan benefit, such forfeited Plan benefit
 
shall be paid by the Plan
Administrator to the Participant
 
or Beneficiary,
 
without interest from the date it would have otherwise
been paid.
15.8
Classification
 
of
 
Retirement
 
Payments
.
 
A
 
termination
 
of
 
employment
 
at
 
or
 
after
attainment
 
of
 
age
 
sixty-two
 
(62)
 
shall
 
be
 
considered
 
as
 
retirement,
 
and
 
payments
 
from
 
the
 
Plan
subsequent
 
to
 
termination
 
of
 
employment
 
at
 
or
 
after
 
age
 
sixty-two
 
(62)
 
shall
 
be
 
considered
 
as
retirement payments.
IN WITNESS WHEREOF,
 
the Company adopts this Plan as of the
 
Effective Date written above.
 
CAL-MAINE FOODS,
 
INC.:
By:
 
Title:
 
Printed Name: