TASTY BAKING COMPANY
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SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
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THIS AGREEMENT, entered into as of the 7th day of October, 2002, 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:
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WHEREAS, Employer wishes to establish a plan of supplemental retirement
income for the Employee.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
ARTICLE I: BENEFITS
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1. Retirement. In the event that Employee separates from service with
Employer on or after age 62, he shall be entitled to receive a monthly amount
until his death commencing on the first day of the first month following the
month in which Employee separates from service of the Employer. The amount to be
received hereunder shall be a monthly benefit in the form of a single life
annuity equal to the greater of (a) $1,308.30 times Employee's years of service
(not to exceed 10) with Employer or (b) 1.92% of the Employee's final average
compensation times Employee's years of service (not to exceed 10) with Employer,
in each case, less the accrued benefit of Employee under the Employer's
tax-qualified defined benefit pension plan. Employee may elect prior to his
separation from service to receive benefits in an actuarially equivalent joint
and 100% or joint and 50% survivor annuity with his spouse on his date of
separation as the survivor annuitant.
For purposes of this Agreement, the term "years of service" shall mean
the Employee's entire period of service with the Employer measured from the
Employee's employment commencement date (October 7, 2002) and anniversaries
thereof. After one year of service, for purposes of calculating benefits under
this Agreement, Employee shall receive proportional credit for a partial year of
service for each full month worked in his final year of employment. The term
"final average compensation" shall mean the average of the Employee's 60 highest
months' compensation (as defined in the Employer's tax-qualified defined benefit
pension plan without regard to the limit on compensation under Section
401(a)(17) of the Internal Revenue Code of 1986, as amended) paid by the
Employer during the 120 calendar months immediately preceding the Employee's
separation from service. The term "actuarially equivalent" means equality in
value of the aggregate amounts expected to be received under the different forms
of payment available under this Agreement, as determined by the factors used in
the Employer's tax-qualified defined benefit pension plan.
2. Death Prior to Retirement.
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(a) In the event the Employee is unmarried and dies prior to the
commencement of benefits hereunder, no payments shall be due under this
Agreement.
(b) In the event that Employee is married and dies prior to the
commencement of benefits hereunder and after the date he is fully vested in his
accrued benefits under this Agreement, his surviving spouse shall be entitled to
receive an amount per month until her death, commencing on the later of the
first day of the month following the date of Employee's death or the first day
of the month following the date on which Employee would have attained age 57 had
he lived. Said monthly amount shall be equal to one hundred (100%) percent of
the amount that the Employee would have been eligible to receive under paragraph
1 above or paragraph 3 below
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had he (i) retired or terminated on the day before his death, (ii) elected to
commence benefits on such date (or, if not then eligible to commence benefits,
elected to commence benefits on the earliest date thereafter that he would have
been eligible to commence benefits) and (iii) then elected an immediate joint
and 100% survivor annuity.
3. Early Retirement.
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(a) In the event that the Employee separates from service prior to the
attainment of age 62, he shall be entitled to a single life annuity, equal to
the amount determined under Section 1, commencing on the first day of the month
following the date the Employee separates from service or, if later, the first
day of the month following the date Employee attains age 57, except that the
benefit so determined shall be reduced by 0.41666% for each month that the
benefit commencement date precedes the date Employee would attain age 62.
(b) Employee may elect prior to his separation from service to receive
benefits in an actuarially equivalent joint and 100% or joint and 50% survivor
annuity with his spouse on his date of separation as the survivor annuitant.
4. Disability. In the event that Employee separates from service with
Employer as a result of Employee's becoming "totally disabled," within the
meaning of Employer's long term disability program, Employee shall have the
right to receive payments hereunder equal to his accrued benefit, as determined
under and in a form described in Section 1, based on his years of service and
final average compensation at the time he is determined to be disabled,
commencing on the first day of the month following the date he attains age 65.
ARTICLE II: VESTING/FORFEITURE OF BENEFITS
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In the event Employee separates from service prior to completing one
year of service, as defined in Section 1, Employee shall forfeit his right to
receive any benefits under this Plan.
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Upon completion of one year of service, Employee shall be fully vested in his
accrued benefits under the Plan. Notwithstanding the preceding sentence, no
payment of any then unpaid installments of supplemental retirement income
hereunder shall be made and all rights under this plan shall be forfeited if the
Employee's employment is terminated by the Employer for "cause" as defined in
Employee's Employment Agreement with the Employer; no other termination of
employment of Employee under his Employment Agreement with Employer shall result
in a forfeiture of any vested benefits under this Agreement except as otherwise
expressly provided herein.
ARTICLE III: TERMINATION OF EMPLOYMENT
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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 IV: ASSIGNMENT
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The right of the Employee to the payment of supplemental retirement
compensation or other 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 the Employee for any reason
or circumstance.
ARTICLE V: LACK OF FIDUCIARY RELATIONSHIP
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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 the Employee or
any other person. Any funds which
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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 the 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.
ARTICLE VI: MODIFICATION
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This Agreement may be revised only in writing signed by the parties hereto.
ARTICLE VII: GOVERNING LAW
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This Agreement shall be construed in accordance with the laws of the
Commonwealth of Pennsylvania.
ARTICLE VIII: MISCELLANEOUS
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1. Status of Payments. Any compensation or benefit payable under this
Agreement shall not be included for the purpose of computing benefits to which
the 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
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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.
3. Claims Procedure.
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(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.
(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
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issues and comments in writing which will be given full consideration by the
Committee in its review.
(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. 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.
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4. Withholding. Any compensation or benefit payable under this Agreement
shall be subject to any applicable federal, state and local income and
employment tax withholding.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the
day and year first above written.
ATTEST: TASTY BAKING COMPANY
By:
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Secretary Xxxx X. Xxxxx, Chairman
WITNESS:
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Xxxxxxx X. Xxxxx
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