TASTY BAKING COMPANY SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT AMENDED AND RESTATED EFFECTIVE AS OF JANUARY 1, 2009
Exhibit
10 (s)
TASTY
BAKING COMPANY
AMENDED
AND RESTATED
EFFECTIVE
AS OF JANUARY 1, 2009
THIS
AMENDED AND RESTATED AGREEMENT, entered into as of the 23rd day of December,
2008, by and between Tasty Baking Company, a Pennsylvania corporation
(hereinafter referred to as “Employer”) and Xxxxxxx X. Xxxxx (hereinafter
referred to as “Employee”).
W I T N E S S E T
H:
WHEREAS,
the Employer and Employee entered into a Supplemental Executive Retirement Plan
Agreement (the “Agreement”) as of October 7, 2002, and further amended and
restated the Agreement as of August 19, 2004 and July 27, 2006, respectively;
and
WHEREAS,
the Employer and Employee desire to amend the Agreement so that it conforms to
the requirements of Section 409A of the Internal Revenue Code of 1986, as
amended and the final regulations promulgated thereunder (the
“Code”).
NOW,
THEREFORE, the parties hereto, intending to be legally bound, hereby amend and
restate the Agreement, effective as of January 1, 2009, as follows:
ARTICLE
I: CONTRIBUTIONS
1. Initial Contribution
Credit. Effective as of September 30, 2004, the Employer shall
credit an amount equal to $172,500 to an unfunded notional account on behalf of
Employee.
2. Subsequent Contribution
Credits. As of the end of each month subsequent to September
30, 2004, the Employer shall credit a contribution to such notional account on
behalf of Employee in an amount equal to 39% of the base salary and bonus paid
by the Employer to Employee during such month. In no event shall any
contributions be credited to such notional account on behalf of Employee after
Employee attains age 67.
3. Interest
Credit. As of the end of each month subsequent to September
30, 2004, the Employer shall credit interest to such notional account an amount
equal to the product of (a) 1/12 of the interest crediting rate for the calendar
year and (b) Employee’s account balance at the beginning of the
month.
4. Interest Crediting
Rate. The interest-crediting rate for a calendar year will be
Xxxxx’x Xx rate for corporate bonds as of the last business day preceding the
beginning of the calendar year.
5. Change of
Control. In the event the Employer undergoes a “change of
control,” as defined in Employee’s Employment Agreement with the Employer, the
Employer guarantees that three additional annual contribution credits, as
determined under paragraph 2, above based upon Employee’s base salary and bonus
for the calendar year immediately prior to the calendar year in which he
terminates employment following a change of control, shall be credited to
Employee’s notional account if and only to the extent that (a) Employee does not
continue to perform service for the Employer for at least 36 months after the
change of control and (b) Employee does not receive at least 36 months of
contribution credits for such service under paragraph 2, above. In no
event shall the guarantee of additional annual contribution credits under this
paragraph be applicable for any calendar year that Employee continues to perform
service for the Employer after the year in which Employee attains age
62.
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6. Benefits Under this
Agreement. Benefits shall be paid to Employee pursuant to the
notional account established by the Employer for the benefit of Employee in
accordance with this Agreement and shall be in lieu of and not supplementary to
the benefits accrued by Employee under the terms of this Agreement as in effect
prior to August 19, 2004.
ARTICLE
II: PAYMENT OF
BENEFITS
1. Retirement. Subject
to Article X, Section 3, in the event that Employee separates from service with
the Employer, his entire notional account balance, valued as of the end of the
month preceding payment, shall be paid to him in a lump sum on the first
business day of the month following the date of his separation from
service.
2. Disability. Subject
to Article X, Section 4, In the event that Employee separates from service with
the Employer as a result of being “totally disabled,” within the meaning of and
determined under the Employer’s long-term disability program, his entire
notional account balance, valued as of the end of the month preceding payment,
shall be paid to him in a lump sum on the first business day of the month
following the date of the determination that he is totally
disabled.
3. Death. In
the event that Employee dies prior to receiving any benefits pursuant to this
Agreement, his entire notional account balance, valued as of the end of the
month preceding payment, shall be paid in a lump sum to his surviving spouse on
the first business day of the month following the date of his
death. In the event Employee is unmarried on the date of his death,
no payment shall be due under this Agreement.
ARTICLE
III: VESTING/FORFEITURE OF
BENEFITS
Employee
shall be immediately and fully vested in all amounts credited to his notional
account pursuant to this Agreement on or after September 30,
2004. Notwithstanding the preceding sentence, Employee’s entire
notional account balance shall be forfeited if his employment is terminated by
the Employer for “cause”, as defined in subparagraphs (i), (ii) or (iii) of
Section 5(b) of Employee’s Employment Agreement with the Employer. No
other termination of employment of Employee under his Employment Agreement with
the Employer shall result in a forfeiture of any amounts payable to him under
this Agreement except as otherwise expressly provided herein.
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ARTICLE
IV: TERMINATION OF
EMPLOYMENT
This
Agreement shall not in any way constitute an employment agreement between
Employee and Employer and shall in no way obligate Employer to continue the
employment of Employee with Employer. This Agreement shall not limit
the right of Employer to terminate Employee’s employment with Employer in
accordance with Employee’s employment agreement with the Employer.
ARTICLE
V: ASSIGNMENT
The right
of Employee to the payment of benefits under this Agreement shall not be
assigned, transferred, pledged, or encumbered. Further, said right
shall not be subject to devise or bequest nor shall it survive the death of
Employee for any reason or circumstance, except as provided in Section 3 of
Article II, above.
ARTICLE
VI: LACK
OF FIDUCIARY RELATIONSHIP
Nothing
contained in this Agreement and no action taken pursuant to the provisions of
this Agreement shall create or be construed to create a trust of any kind, or a
fiduciary relationship between the Employer and Employee or any other
person. Any funds which may be invested for the purpose of fulfilling
the obligations which may arise under the provisions of this Agreement shall
continue for all purposes to be a part of the general funds of the Employer and
no person other than Employee shall, by virtue of the provisions of this
Agreement, have any interest in such funds. To the extent that any
person acquires a right to receive payments from the Employer under this
Agreement, such right shall be no greater than the right of any unsecured
general creditor of the Employer.
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ARTICLE
VII: MODIFICATION
This
Agreement may be revised only in writing signed by the parties
hereto.
ARTICLE
VIII: GOVERNING
LAW
This
Agreement shall be construed in accordance with the laws of the Commonwealth of
Pennsylvania.
ARTICLE
IX: MISCELLANEOUS
1. Status of
Payments. Any contribution credit or benefit payable under
this Agreement shall not be included for the purpose of computing benefits to
which Employee may be entitled under any pension plan or other arrangement of
the Employer for the benefit of its employees.
2. Interpretation. The
Compensation Committee of the Board of Directors (the “Committee”) shall have
full power and discretionary authority to interpret, construe and administer
this Agreement and the Committee’s interpretation and construction thereof and
actions thereunder, taken by majority vote, including any valuation of the
supplemental retirement compensation amount to be paid, shall be binding and
conclusive on all persons for all purposes. No member of the
Committee or member of the Board shall be liable to any person for any action
taken or omitted in connection with the interpretation or administration of this
Agreement unless attributable to his own willful misconduct or lack of good
faith.
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3. Claims
Procedure.
(a) The
Committee shall prescribe a form for the presentation of claims under the terms
of this Agreement.
(b) Upon
presentation to the Committee of the claim on the prescribed form, the Committee
shall make the determination of the validity thereof. If the
determination is adverse to the claimant, the Committee shall furnish to the
claimant within 90 days after receipt of the claim a written notice setting
forth the following:
(i)
The
specific reason or reasons for the denial;
(ii)
Specific
references to pertinent provisions of the Agreement on which the denial is
based;
(iii) A
description of any additional materials or information necessary for the
claimant to perfect the claim and an explanation of why such material or
information is necessary; and
(iv)
Appropriate
information as to the steps to be taken if the claimant wishes to submit his or
her claim for review and the time limits applicable to such procedures,
including the right to bring a civil action under section 502(a) of
ERISA.
(c) In the
event of a denial of a claim, the claimant or his or her duly authorized
representative may appeal such denial to the Committee for a full and fair
review of the adverse determination. The claimant’s request for a
review must be in writing and made to the Committee within 60 days after receipt
by the claimant of the written notification required under paragraph (b) above;
provided, however, such 60-day period shall be extended if the circumstances so
warrant. The claimant or his or her duly authorized representative
may submit issues and comments in writing which will be given full consideration
by the Committee in its review.
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(d) The
Committee may, in its sole discretion, conduct a hearing. A request
for a hearing made by the claimant will be given full
consideration. At such hearing, the claimant shall be entitled to
appear and present evidence and to be represented by counsel.
(e) The
Committee shall make a decision on a request for review not later than 60 days
after receipt of the request; provided, however, in the event of a hearing or
other special circumstances, such decision shall be made not later than 120 days
after receipt of such request. If it is necessary to extend the
period of time for making a decision beyond 60 days after the receipt of the
request, the claimant shall be notified in writing of the extension of time
prior to the beginning of such extension.
(f) The
Committee’s decision on review shall state in writing the specific reasons and
references to the provisions of the Agreement upon which it is based, that the
claimant is entitled to receive, upon request and free of charge, and have
reasonable access to and copies of all documents, records and other information
relevant to the claim for benefits and that the claimant may bring an action
under section 502(a) of ERISA. Such decision shall be promptly
provided to the claimant. If the decision on review is not furnished
in accordance with the foregoing, the claim shall be deemed denied on
review.
4. Withholding. Any
benefit payable under this Agreement shall be subject to applicable federal,
state and local income and employment tax withholding.
ARTICLE
X: SECTION 409A RESTRICTIONS ON
DISTRIBUTIONS
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1. Amounts Deferred Prior to
January 1, 2005. Contributions credited to Employee’s notional
account on or before December 31, 2004, including interest subsequently credited
thereon pursuant to Article I, shall be distributable to Employee pursuant to
the terms of this Agreement without regard to the provisions of this Article X
and Section 409A of the Code. The parties agree that $218,222 was
credited to Employee’s notional account pursuant to the Agreement as of December
31, 2004. Such amount, including interest subsequently credited
thereon pursuant to Article I, shall be hereafter referred to as the
“grandfathered account balance.”
2.
Amounts Deferred After
December 31, 2004. Contributions credited to Employee’s
notional account after December 31, 2004, including interest subsequently
credited thereon pursuant to Article I, are subject to the requirements of
Section 409A of the Code and the regulations and other guidance issued
thereunder by the Internal Revenue Service. Such amounts shall be
referred to hereafter as the “remainder of Employee’s notional account
balance.” The Agreement is intended to comply with the requirements
of Section 409A of the Code, and shall be administered in accordance
therewith. To the extent that any provision of the Agreement
conflicts with the requirements of Section 409A of the Code, such provision
shall be deemed null and void. Notwithstanding anything in the
Agreement to the contrary, distributions may only be made under the Agreement
upon an event and in a manner permitted by section 409A of the
Code. If a payment is not made by the designated payment date under
the Agreement, the payment shall be made by December 31 of the calendar year in
which the designated payment date occurs. Distributions upon
termination of employment shall only be made upon Employee’s “separation from
service” within the meaning of such term under section 409A of the Code, and in
no event shall Employee, directly or indirectly, designate the calendar year of
payment.
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3.
Retirement. In
the event that Employee separates from service with the Employer, Employee’s
grandfathered account balance and the remainder of his notional account balance
shall be paid to him in accordance with Section 1 of Article II; provided,
however, that if any stock of the Employer is publicly-traded on an established
securities market or otherwise as of the date of Employee’s separation from
service, the remainder of Employee’s notional account balance shall be paid to
him in a lump sum on the first business day following the date that is six
months after his separation from service. The Employer shall continue
to credit interest on the remainder of Employee’s notional account balance, in
accordance with Article I, until the date of payment to Employee.
4.
Disability. In
the event that Employee separates from service with the Employer as a result of
being “disabled”, as defined in Article II, Employee’s grandfathered account
balance shall be paid to him in accordance with Section 2 of Article
II. The remainder of Employee’s notional account balance shall be
paid to him in a lump sum on the first business day of the month following the
date that he has received income replacement benefits under the Employer’s
long-term disability program for three months in accordance with the applicable
requirements of section 409A of the Code. The Employer shall continue
to credit interest, in accordance with Article I, on the remainder of Employee’s
notional account balance until the date of payment to Employee.
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IN WITNESS
WHEREOF, the parties hereto have set their hands and seals the day and
year first
above written.
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ATTEST:
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TASTY BAKING COMPANY | ||
| /s/ Xxxxxxxx Xxxxxxxxxx | By: |
/s/ Xxxxx X. Xxxxxxxx
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Secretary
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Xxxxx
X. Xxxxxxxx
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Chairman
of the Board
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WITNESS:
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| /s/ Xxxxxxx X. Xxxxxxxx | /s/ Xxxxxxx X. Xxxxx | ||
| Xxxxxxx X. Xxxxx | |||
| President and | |||
| Chief Executive Officer | |||
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