EX-10.1 5 exhibit101.htm EX-10.1 exhibit101
Exhibit 10.1
CAL-MAINE FOODS, INC.
SUPPLEMENTAL EXECUTIVE
 
RETIREMENT PLAN
RECITALS
This
 
Supplemental
 
Executive
 
Retirement
 
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
 
purpose
 
of
 
the
 
Plan
 
is
 
to
 
provide
 
Participants,
 
who
 
are
 
largely
 
responsible
 
for
 
the
Company’s
 
success, the
 
opportunity
 
to receive
 
supplemental
 
executive
 
retirement benefits,
 
thereby
 
increasing the
incentive of such key employees to remain in the employ of the Company.
The Plan
 
is an
 
unfunded nonqualified
 
deferred compensation
 
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”) by operation of
 
Sections 201(2), 301(a)(3) and
 
401(a)(1) thereof. The Plan
 
will be
administered, operated and construed in accordance with this intention.
The
 
Plan
 
is
 
intended
 
to
 
comply
 
in
 
form
 
and
 
operation
 
with
 
all
 
applicable
 
law,
 
including,
 
to
 
the
 
extent
applicable, the
 
requirements of U.S.
 
Internal Revenue
 
Code Section
 
409A (“Section 409A”)
 
and will
 
be administered,
operated and construed in accordance with this intention.
Accordingly, the Plan is adopted,
 
effective as of March 1, 2023.
ARTICLE 1
DEFINITIONS
This
 
Article
 
provides
 
definitions
 
of
 
terms
 
used
 
throughout
 
this
 
Plan,
 
and
 
whenever
 
used
 
herein
 
in
 
a
capitalized form, except as otherwise expressly provided, the terms shall
 
be deemed to have the following meanings:
1.1
“Affiliate”
 
shall
 
mean
 
any
 
corporation,
 
partnership,
 
joint
 
venture,
 
association,
 
or
 
similar
organization or entity,
 
other than the Company,
 
that is a member
 
of a controlled group
 
of corporations in which
 
the
Company is a
 
member, as
 
defined in U.S.
 
Internal Revenue
 
Code Section
 
414(b) and all
 
other trades or
 
businesses
(whether or
 
not incorporated)
 
under common
 
control of
 
or with
 
the Company,
 
as defined
 
in U.S.
 
Internal Revenue
Code Section 414(c).
1.2
“Beneficiary” or “Beneficiaries”
 
shall mean the
 
person or persons,
 
natural or otherwise,
 
designated
by a Participant in accordance with the Plan to receive Plan benefits in the event of the death of the Participant.
 
1.3
“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.
1.4
 
“Cause”
 
shall
 
mean
 
conduct
 
by
 
a
 
Participant
 
reasonably
 
and
 
in
 
good
 
faith
 
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 materially harm the Company
 
and are undertaken or omitted knowingly or
 
are criminal or fraudulent
or involve material dishonesty or moral turpitude; (c) conviction
 
of, or entry by Participant of, a guilty or no contest
plea
 
to
 
any
 
felony
 
or
 
any
 
other
 
crime
 
involving
 
moral
 
turpitude;
 
or
 
(d)
 
material
 
breach
 
of
 
fiduciary
 
duty
 
to
 
the
Company.
1.5
“Change in Control”
 
shall mean and shall
 
include a change in
 
ownership of the Company, a change
in 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.
 
1.6
“Claimant”
 
shall mean
 
a Participant
 
or a
 
Beneficiary
 
who believes
 
that he
 
or
 
she is
 
entitled
 
to a
benefit under this Plan or being denied a benefit to which he or she is entitled hereunder.
1.7
“Code”
 
shall mean the
 
U.S. Internal Revenue
 
Code of 1986
 
and the Treasury
 
Regulations or other
authoritative guidance issued thereunder, as amended from time to time.
1.8
“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.
1.9
“Disability”
or “Disabled”
 
shall be
 
defined as
 
a condition
 
of a
 
Participant whereby
 
he or
 
she has
been
 
deemed
 
totally
 
disabled
 
by
 
the
 
Social
 
Security
 
Administration
 
or
 
has
 
been
 
determined
 
to
 
be
 
disabled
 
in
accordance
 
with
 
a
 
long-term
 
disability
 
insurance
 
program
 
of
 
the
 
Company,
 
provided
 
that
 
the
 
program
 
covers
 
the
Participant and the definition of disability
 
applied under such program complies with
 
Code Section 409A.
Upon the
request of the Plan Administrator, the Participant must submit proof to the Plan Administrator of the Social Security
Administration’s or disability insurance provider’s
 
determination.
1.10
“Effective Date”
 
shall mean March 1, 2023.
1.11
“Eligibility
 
Date”
 
shall
 
mean
 
the
 
date
 
designated
 
by
 
the
 
Plan
 
Administrator
 
in
 
a
 
Participant’s
Participation Agreement at which an Eligible Employee shall become eligible to participate in the Plan.
1.12
 
“Eligible Employee”
shall mean for any calendar year (or applicable portion of a calendar year),
 
an
Employee who is determined by the Company, or its designee, to be eligible
 
to participate in the Plan, in accordance
with Section 2.1.
1.13
“Employee”
 
shall mean
 
an individual
 
who provides
 
services to
 
the Company
 
in the
 
capacity of
 
a
common law employee of the Company.
1.14
“ERISA”
 
shall mean the Employee Retirement Income Security Act of 1974, as it may
 
be amended
from time to time, and the regulations and guidance promulgated thereunder.
1.15
“Participant”
 
shall mean
 
an Eligible
 
Employee of
 
the Company
 
who is
 
designated
 
as eligible
 
to
participate
 
in
 
this
 
Plan
 
and
 
who
 
completes the
 
requirements
 
of
 
participation
 
in
 
accordance
 
with
 
the
 
provisions
 
of
Article 2
1.16
“Participation
 
Agreement”
 
shall
 
mean
 
the
 
agreement
 
between
 
the
 
Eligible
 
Employee
 
and
 
the
Company in which the Eligible Employee agrees to participate in the Plan.
1.17
“Plan”
 
shall
 
mean
 
this
 
Supplemental
 
Executive
 
Retirement
 
Plan,
 
evidenced
 
by
 
this
 
written
agreement, Participation Agreements, and
 
any other forms
 
required by the Plan
 
Administrator or Code Section
 
409A,
as may be
 
amended from time
 
to time. For purposes
 
of applying Code Section
 
409A requirements, the benefit
 
of each
Participant under this Plan is a non-account balance plan under Treasury Regulation §1.409A
 
-1(c)(2)(i)(C).
1.18
“Plan Administrator”
shall mean the Company or such committee or person as the Company shall
appoint to act in accordance with Article 5.
 
No Participant who is a Plan Administrator shall
 
participate in an action
on a matter which applies solely to that person.
1.19
“Retirement
 
Age
”
 
shall
 
mean
 
age
 
sixty-five
 
(65),
 
unless
 
otherwise
 
described
 
in
 
a
 
Participant’s
Participation Agreement.
1.20
“Retirement
 
Benefit”
 
shall mean
 
an amount
 
of five
 
hundred thousand
 
dollars ($500,000),
 
unless
otherwise described in a Participant’s Participation Agreement.
1.21
“Section 409A”
 
shall mean Code Section 409A and the Treasury Regulations or other
 
authoritative
guidance issued thereunder.
1.22
“Separation from
 
Service”
or “Separates
 
from
 
Service”
 
shall mean
 
a change
 
in a
 
Participant's
relationship with
 
the Company
 
that constitutes
 
a separation
 
from service
 
within the
 
meaning of
 
Section 409A
 
and
under Treasury
 
Regulation §1.409A-1(h), treating
 
as a Separation
 
from Service an
 
anticipated permanent reduction
in the level of bona fide services to be performed by
 
the Participant for the Company to twenty percent (20%) or less
of
 
the
 
average
 
level
 
of
 
bona
 
fide
 
services
 
performed
 
by
 
the
 
Participant
 
for
 
the
 
Company
 
over
 
the
 
immediately
preceding
 
thirty-six
 
(36) month
 
period (or
 
the full
 
period
 
during which
 
the
 
Participant performed
 
services for
 
the
Company if that is less than thirty-six (36) months).
1.23
“Treasury
 
Regulation” or
 
“Treasury
 
Regulations”
 
shall mean the
 
regulation(s) promulgated
 
by
the Internal Revenue Service for the U.S. Department of the Treasury,
 
as they may be amended from time to time.
1.24
“Year
 
of Plan Participation”
 
shall mean a twelve (12)
 
month period during which a
 
Participant is
employed by the Company on
 
a full-time basis, inclusive of
 
approved leaves of absence, beginning
 
on a Participant’s
Eligibility Date.
ARTICLE 2
SELECTION, ENROLLMENT, ELIGIBILITY
 
2.1
Selection.
 
Participation
 
in
 
the
 
Plan
 
shall
 
be
 
limited
 
to
 
a
 
select
 
group
 
of
 
management
 
or
 
highly
compensated employees of the Company,
 
as determined by the Company in its sole and absolute discretion.
 
2.2
Enrollment Requirements.
 
As a condition
 
of participation, each
 
selected Eligible Employee
 
shall
complete, execute, and
 
return to the
 
Plan Administrator a
 
Participation Agreement and
 
Beneficiary Designation Form
within the
 
time specified
 
by the
 
Plan Administrator.
 
In addition,
 
the Plan
 
Administrator shall
 
establish such
 
other
enrollment requirements as it determines necessary or advisable.
2.3
Re-employment.
 
The re-employment of a former Participant by the Company shall not
 
entitle such
individual to
 
resume participation
 
hereunder.
 
Such individual
 
shall not
 
become a
 
Participant until
 
the individual
 
is
again designated as
 
an Eligible Employee
 
as defined under
 
the terms of
 
the Plan. If
 
a Participant who has
 
experienced
a Separation
 
from Service
 
is receiving
 
installment distributions
 
under the
 
terms of
 
this Plan
 
and is
 
re-employed by
the Company, distributions due to the Participant
 
shall not be suspended.
2.4
Termination
 
of Participation.
 
If the Plan Administrator determines in good faith that a Participant
no longer qualifies as a member of a select group of management or highly compensated employees, as membership
in
 
such
 
group
 
is
 
determined
 
in
 
accordance
 
with
 
Section
 
201(2),
 
301(a)(3)
 
and
 
401(a)(1)
 
of
 
ERISA,
 
the
 
Plan
Administrator shall have the
 
right, in its sole
 
discretion, to cease further
 
benefit accruals hereunder
 
on behalf of the
Participant.
ARTICLE 3
VESTING AND DISTRIBUTION OF BENEFITS
3.1
Vesting.
 
Unless
 
otherwise
 
described
 
in
 
a
 
Participant’s
 
Participation
 
Agreement,
 
a
 
Participant
becomes vested in the Retirement Benefit based on the following schedule:
 
 
 
 
 
 
 
 
 
 
 
Complete Years
 
of Plan Participation
Percent Vested
Less than 1
0%
1 but less than 2
20%
2 but less than 3
40%
3 but less than 4
60%
4 but less than 5
80%
5 or more
100%
3.2
Acceleration
 
of
 
Vesting.
 
Notwithstanding
 
the
 
foregoing
 
vesting
 
schedule,
 
a
 
Participant
 
becomes
one hundred percent (100%) vested
 
in the Retirement Benefit upon
 
the earliest of the
 
following events to occur while
employed by the Company: (a) Disability,
 
(b) a Change in Control, or (c) attainment of Retirement Age.
3.3
Payments in General.
 
A Participant (or, in the
 
event of the
 
death of the Participant,
 
the Participant’s
Beneficiary) shall be
 
entitled to a
 
benefit as of
 
the earliest payment
 
event to occur
 
under Article 3.
 
All payments made
under the Plan shall be made in cash from the Company’s general assets.
 
3.4
Separation from Service.
(a)
Prior to Retirement Age.
In the event a Participant
 
Separates from Service (other than
 
for
Cause or death)
 
prior to Retirement
 
Age, the Participant shall
 
be paid the
 
vested percentage of
 
the Retirement
Benefit, calculated as
 
of the
 
date of
 
Separation from Service,
 
over ten
 
(10) years
 
in equal,
 
annual installments.
(For example: vested
 
percentage * $500,000
 
/ 10.) The
 
first installment shall
 
be paid on
 
the first day
 
of the
sixth month
 
following Retirement
 
Age, with
 
subsequent installments
 
paid thereafter
 
on the
 
anniversary of
the first installment.
(b)
On or After Retirement Age.
 
In the event a Participant Separates from Service (other than
for Cause or death) on or after Retirement Age, the Participant shall be paid the Retirement Benefit over ten
(10)
 
years
 
in
 
equal,
 
annual
 
installments.
 
(For
 
example:
 
$500,000
 
/
 
10
 
=
 
$50,000
 
per
 
year.)
 
The
 
first
installment shall
 
be paid
 
on the
 
first day
 
of the
 
sixth month
 
following the
 
date of
 
Separation from
 
Service,
with subsequent installments paid thereafter on the anniversary of the first installment.
3.5
Disability.
 
In
 
the
 
event
 
a
 
Participant
 
becomes
 
Disabled
 
while
 
employed
 
by
 
the
 
Company,
 
the
Participant shall be paid
 
the Retirement Benefit over
 
ten (10) years
 
in equal, annual
 
installments. The first installment
shall be paid on the first day of the second month following the date of Disability,
 
with subsequent installments paid
thereafter on the anniversary of the first installment.
3.6
Change
 
in
 
Control.
In
 
the
 
event
 
of
 
the
 
Company’s
 
Change
 
in
 
Control
 
while
 
a
 
Participant
 
is
employed by the Company,
 
the Participant shall be paid
 
the Retirement Benefit over
 
ten (10) years in equal,
 
annual
installments. The first installment shall be paid on the
 
first day of the second month following the
 
date of the Change
in Control, with subsequent installments paid thereafter on the anniversary of the first installment.
3.7
Death.
 
(a)
While Employed.
In the event of a Participant’s death while employed by the Company, no
benefit
 
is
 
due
 
from
 
this
 
Plan.
 
It
 
is
 
the
 
intent
 
of
 
the
 
Company
 
to
 
pay
 
a
 
pre-retirement
 
death
 
benefit
 
to
 
the
Participant’s Beneficiary pursuant to a separate endorsement “split dollar”
 
life insurance arrangement.
(b)
During or Before Installments.
If a Participant dies
 
after installments have commenced
 
but
prior to receiving all installments owed under the
 
Plan, or if the Participant dies after becoming entitled
 
to a
benefit but dies
 
prior to the
 
commencement of installments,
 
the Company shall
 
continue to
 
pay any
 
remaining
installments
 
to
 
the
 
Participant’s
 
Beneficiary
 
as
 
the
 
installments
 
would
 
have
 
otherwise
 
been
 
paid
 
to
 
the
Participant.
3.8
Forfeitures.
Notwithstanding anything in
 
the Plan to the
 
contrary,
 
if a Participant
 
is terminated for
Cause, the Participant shall not be entitled to any
 
benefits under the terms of this Plan and his
 
or her participation in
this Plan
 
shall be
 
null and
 
void. Additionally,
 
a Participant
 
shall forfeit
 
any unvested
 
amounts at
 
the time
 
of his
 
or
her Separation from Service.
3.9
Subsequent Deferral Elections.
If approved by the Company, a Participant may delay the time of a
payment or change the form of a payment as expressly provided
 
under this Section 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:
 
(a)
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;
(b)
If the Subsequent Deferral Election
 
relates to a payment based
 
on Separation from Service,
Change in
 
Control, 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;
 
(c)
If the Subsequent Deferral Election relates to a payment
 
at a specified time, the Subsequent
Deferral
 
Election
 
must
 
be
 
made
 
not
 
less
 
than
 
twelve
 
(12)
 
months
 
before
 
the
 
date
 
the
 
first
 
amount
 
was
scheduled to be paid.
 
For purposes of applying this Section
 
3.9, installment payments shall be treated
 
as a “single payment.” Any
election made pursuant to this Section shall be made on such election forms or 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.
3.10
Permissible Payment
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).
3.11
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.
3.12
Unsecured General Creditor Status of Participant.
(a)
 
Payment to any Participant
 
or Beneficiary hereunder shall
 
be made from assets which
 
shall
continue, for all purposes, to be part of the legally available assets of the Company and no person shall have
any interest in
 
any such asset
 
by virtue of
 
any provision of
 
this Plan. The
 
Company’s
 
obligation hereunder
shall
 
be
 
an
 
unfunded
 
and
 
unsecured
 
promise
 
to
 
pay
 
money
 
in
 
the
 
future.
 
To
 
the
 
extent
 
that
 
any
 
person
acquires a right
 
to receive payments
 
from the
 
Company under
 
the provisions hereof,
 
such right
 
shall be no
greater than
 
the right
 
of any
 
unsecured general
 
creditor of
 
the Company
 
and no
 
such person
 
shall have
 
or
acquire any legal or equitable right, interest, or claim in or to any property or assets of the Company.
(b)
 
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 primary owner and beneficiary of
 
any such insurance policy
or property and shall possess
 
and may exercise all incidents
 
of ownership therein. 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.
(c)
 
In
 
the
 
event
 
that
 
the
 
Company
 
purchases
 
an
 
insurance
 
policy
 
or
 
policies
 
on
 
the
 
life
 
of
 
a
Participant as provided
 
for above, then
 
all of such
 
policies shall
 
be subject to
 
the claims of
 
the creditors
 
of
the Company.
(d)
 
If the
 
Company chooses
 
to obtain
 
insurance on
 
the life
 
of a
 
Participant in
 
connection with
its
 
obligations
 
under
 
this
 
Plan,
 
the
 
Participant
 
shall
 
take
 
such
 
physical
 
examinations
 
and
 
truthfully
 
and
completely
 
supply
 
such
 
information
 
as
 
may
 
be
 
required
 
by
 
the
 
Company
 
or
 
the
 
insurance
 
company
designated by the Company.
ARTICLE 4
BENEFICIARY DESIGNATION
4.1
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
 
Beneficiary Designation
 
Form. Each
designation will revoke all prior designations by the same
 
Participant, shall be in the form prescribed by the
Plan
 
Administrator,
 
and
 
shall
 
be
 
effective
 
only
 
when
 
filed
 
with
 
the
 
Plan
 
Administrator
 
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
Participant’s
 
then
 
living
 
descendants,
 
if
 
any,
per
 
stirpes
,
 
and
 
if
 
there
 
are
 
no
 
living
 
descendants,
 
to
 
the
Participant’s
 
estate.
 
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.
(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
 
Beneficiary
Designation Form with the Plan Administrator.
(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.
4.2
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.
4.3
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 5
PLAN ADMINISTRATION
5.1
Plan
Administrator
 
Duties.
 
The
 
Plan
 
Administrator
 
shall
 
be
 
responsible
 
for
 
the
 
management,
operation, and administration of the Plan. When making a determination or calculation, the Plan Administrator
 
shall
be entitled
 
to rely on
 
information furnished
 
by the Company,
 
Participant, or Beneficiary.
 
No provision
 
of this Plan
shall be construed as imposing on
 
the Plan Administrator any fiduciary duty
 
under ERISA or other law,
 
or any duty
similar to any fiduciary duty under ERISA or other law.
5.2
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
 
the Participant
 
and his
 
or her
 
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;
(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 the Participant, 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 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.
5.3
Binding Effect
 
of Decision.
 
The decision
 
or action
 
of the
 
Plan Administrator
 
with respect
 
to any
question arising
 
out of or
 
in connection with
 
the administration,
 
interpretation, and
 
application of
 
this Plan
 
and the
rules and regulations
 
promulgated hereunder shall
 
be final and
 
conclusive and binding
 
upon all persons
 
having any
interest in this Plan.
5.4
Compensation
 
and
 
Expenses.
 
The
 
Plan
 
Administrator
 
shall
 
serve
 
without
 
compensation
 
for
services rendered
 
hereunder.
 
The Plan
 
Administrator is
 
authorized at
 
the expense
 
of the
 
Company to
 
employ such
legal counsel and/or Plan recordkeeper as it may deem advisable to assist in the performance of its duties hereunder.
Expense and fees in connection with the administration of this Plan shall be paid by the Company.
 
5.5
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 Participant is
 
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,
 
the 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.
ARTICLE 6
PLAN AMENDMENT
6.1
Right to Amend.
 
Subject to Section 409A,
 
the Company shall have
 
the right to 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.
6.2
Amendments Required
 
By Law.
 
Notwithstanding the
 
provisions of
 
Section 6.1,
 
the Plan
 
may be
amended by the
 
Company at any
 
time, retroactively if
 
required, if found
 
necessary,
 
in the opinion of
 
the Company,
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).
 
No such
 
amendment shall
 
be considered
prejudicial to any interest of a Participant or a Beneficiary hereunder.
ARTICLE 7
PLAN TERMINATION
7.1
 
Plan
 
Suspension
 
or
 
Termination
 
in
 
General.
Although
 
the
 
Company
 
anticipates
 
that
 
it
 
will
continue the Plan for an indefinite period of time, there is no guarantee it will
 
do so. The Company reserves the right
to terminate or suspend the operation of the Plan for a fixed or indeterminate period of time, in its sole discretion. In
the
 
event
 
the
 
Plan
 
is
 
suspended
 
or
 
terminated,
 
a
 
Participant
 
shall
 
be
 
due
 
a
 
benefit
 
to
 
the
 
extent
 
the
 
Participant
 
is
vested,
 
and
 
such
 
vested
 
benefit
 
shall
 
be
 
calculated
 
as
 
of
 
the
 
date
 
this
 
Plan
 
is
 
suspended
 
or
 
terminated.
 
Except
 
as
provided in Section 7.2,
 
the suspension or termination
 
of this Plan shall
 
not cause a distribution
 
of benefits. Rather,
after such
 
suspension or
 
termination, benefit
 
distributions will
 
be made
 
at the
 
earliest distribution
 
event permitted
under Article 3.
7.2
Plan Termination and Liquidation under
 
Section 409A.
 
Notwithstanding anything to
 
the contrary
in Section 7.1, 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
 
Company may
 
distribute a
 
benefit, calculated
 
as of
 
the date
 
the Plan
 
is terminated,
 
to all
Participants subject to the terms below:
(a)
 
Upon the
 
Company’s termination of
 
this and
 
all other
 
arrangements that
 
would be
 
aggregated
with
 
this
 
Plan,
 
pursuant
 
to
 
Treasury
 
Regulation
 
§1.409A-1(c),
 
if
 
the
 
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
 
a 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 and all
 
participants in 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 8
CLAIMS PROCEDURE
8.1
Claims Procedure.
This Article
 
is based
 
on Department
 
of Labor
 
Regulation §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. If the claim relates to Disability benefits, then
the
 
Plan
 
Administrator
 
shall
 
designate
 
a
 
sub-committee
 
to
 
conduct
 
the
 
initial
 
review
 
of
 
the
 
claim
 
(and
applicable references below to the Plan Administrator shall mean such sub-committee).
(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. In the event that
 
the claim for benefits pertains
 
to
Disability, the
 
Plan Administrator shall provide written response
 
within forty-five (45) days, but can
 
extend
this response
 
period by
 
an additional
 
thirty (30)
 
days, if
 
necessary,
 
due to
 
circumstances beyond
 
the Plan
Administrator’s
 
control.
 
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.
 
8.2
 
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)
Review
 
of
 
a
 
Disability
 
Benefit
 
Claim.
 
If
 
the
 
Claimant’s
 
initial
 
claim
 
is
 
for
 
Disability
benefits, any
 
review of
 
a denied
 
claim shall
 
be made
 
by members
 
of the
 
Plan Administrator
 
other than
 
the
original decision maker(s) and such person(s) shall not be a subordinate of the original decision maker(s).
(c)
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.
(d)
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. Additional considerations
 
shall be required in the
 
case of a claim for
 
Disability benefits. For
example, the
 
claim will
 
be reviewed
 
without deference
 
to the
 
initial adverse
 
benefits determination
 
and, if
the
 
initial
 
adverse
 
benefit
 
determination
 
was
 
based
 
in
 
whole
 
or
 
in
 
part
 
on
 
a
 
medical
 
judgment,
 
the
 
Plan
Administrator
 
will consult
 
with
 
a health
 
care professional
 
with
 
appropriate
 
training
 
and experience
 
in
 
the
field of medicine
 
involving the medical
 
judgment. The health
 
care professional who
 
is consulted on
 
appeal
will not be the same
 
individual who was consulted during the
 
initial determination or the subordinate of
 
such
individual. If
 
the Plan
 
Administrator obtained
 
the advice
 
of medical
 
or vocational experts
 
in making
 
the initial
adverse benefits
 
determination (regardless
 
of whether
 
the advice
 
was relied
 
upon), the
 
Plan Administrator
will identify such experts.
 
(e)
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.
 
(f)
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).
8.3
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.
8.4
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.
8.5
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.
 
8.6
Arbitration.
 
If a
 
Claimant continues
 
to dispute
 
the benefit
 
denial based
 
upon completed
 
performance
of the Plan or the meaning and effect of the terms
 
and conditions thereof, then the Claimant must submit the dispute
to an
 
arbitrator for
 
final arbitration.
 
The arbitrator
 
shall be
 
selected by
 
mutual agreement
 
of the
 
Company and
 
the
Claimant. The arbitrator shall
 
operate under any generally
 
recognized set of arbitration
 
rules. The parties
 
hereto agree
that
 
they
 
and
 
their
 
heirs,
 
personal
 
representatives,
 
successors
 
and
 
assigns
 
shall
 
be
 
bound
 
by
 
the
 
decision
 
of
 
such
arbitrator with respect to any controversy properly submitted to it for determination. Where a dispute arises as to the
Company’s
 
discharge
 
of
 
a
 
Participant
 
for
 
Cause,
 
such
 
dispute
 
shall
 
likewise
 
be
 
submitted
 
to
 
arbitration
 
as
 
above
described and the parties hereto agree to be bound by the decision thereunder.
ARTICLE 9
MISCELLANEOUS
9.1
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.
 
9.2
Nonassignability.
 
Neither
 
any
 
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.
9.3
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 the 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.
 
9.4
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).
 
9.5
Notice
.
Any notice or filing required or permitted under
 
this Plan shall be sufficient if in writing and
hand delivered, or sent
 
by registered or certified
 
mail or overnight delivery
 
service to the Company’s
 
address. Such
notice shall be deemed given
 
as of the date of
 
delivery or, if
 
delivery is made by mail,
 
or overnight delivery service
as of the date
 
shown on the postmark
 
on the receipt for
 
registration or certification.
 
Any notice or filing
 
required or
permitted to be
 
given to a
 
Participant under this
 
Plan shall be
 
sufficient if in
 
writing and hand-delivered,
 
or sent by
mail or overnight delivery service, to the last known address of Participant.
 
9.6
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.
9.7
Income Tax Withholding.
 
The Company may make such provisions and take such action as it may
deem
 
necessary
 
or
 
appropriate
 
for
 
the
 
withholding
 
of
 
any
 
taxes
 
which
 
the
 
Company
 
is
 
required
 
by
 
any
 
law
 
or
regulation of any governmental authority, whether federal, state,
 
or local, to withhold
 
in connection with any
 
benefits
under the
 
Plan, including,
 
but not
 
limited to,
 
the withholding
 
of appropriate
 
sums from
 
any amounts
 
otherwise payable
to the Participant
 
(or his or
 
her Beneficiary). Each
 
Participant, however,
 
shall be responsible
 
for the payment
 
of all
individual tax liabilities relating to any such benefits.
 
9.8
Unclaimed
 
Benefits.
 
In
 
the
 
case
 
of
 
a
 
benefit
 
payable
 
on
 
behalf
 
of
 
a
 
Participant,
 
if
 
the
 
Plan
Administrator is
 
unable to
 
locate the
 
Participant or
 
Beneficiary to
 
whom such
 
benefit is
 
payable, 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 earnings, from the
 
date it would have otherwise been paid.
 
The Company executes this Plan as of the date first written above.