calm8k20230327
0000016160 False ☐ ☐ ☐ ☐ 0000016160 2023-03-27 2023-03-27
 
 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM
8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act
Date of Report (Date of Earliest Event Reported):
March 27, 2023
Cal-Maine Foods, Inc.
(Exact name of registrant as specified in its charter)
 
Delaware
001-38695
64-0500378
(State or other jurisdiction of
incorporation)
(Commission File Number)
(IRS Employer Identification No.)
 
 
1052 Highland Colony Pkwy
,
Suite 200
,
Ridgeland
,
MS
39157
(Address of principal executive offices (zip code))
 
601
-
948-6813
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the
registrant under any of the following provisions (see General Instruction
 
A.2 below):
☐
 
Written communications pursuant to Rule 425 under the Securities
 
Act (17 CFR 230.425)
 
☐
 
Soliciting material pursuant to Rule 14a-12 under the Exchange
 
Act (17 CFR 240.14a-12)
☐
 
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
 
Act (17 CFR 240.14d-2(b))
☐
 
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
 
Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading
Symbol(s)
Name of each exchange on which registered
Common Stock, $0.01 par value per share
CALM
The
NASDAQ
 
Global Select Market
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities
 
Act of
1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2
 
of this chapter).
 
Emerging growth company
☐
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange
Act.
☐
 
 
Item 5.02 – Departure of Directors or Certain Officers; Election of Directors;
 
Appointment of Certain Officers;
Compensatory Arrangements of Certain Officers.
Appointment of Chief Operating Officer
On March 27,
 
2023, Cal-Maine Foods,
 
Inc. (the “Company”)
 
issued a press
 
release announcing that
 
Todd Walters,
 
Vice President,
Operations, has been appointed Chief Operating Officer effective March 27, 2023.
Walters (age
 
52) joined
 
the Company
 
in 1997.
 
Since 2011,
 
he has
 
served as
 
Vice President
 
of Operations
 
for the
 
Company’s
operations in
 
South Texas,
 
as well
 
as our
 
subsidiary Wharton
 
County Foods,
 
LLC’s facility
 
in Boling,
 
Texas. He
 
previously served
in management positions at other locations of
 
the Company in Mississippi, Kansas, New
 
Mexico, and Ohio. Walters has served
on the Board of The Ohio
 
Poultry Association and
 
The Texas Poultry Federation, where
 
he is currently an ex-officio member.
 
He
is also
 
an active
 
member of
 
the United
 
Egg Producers.
 
Walters is
 
a graduate
 
of Mississippi
 
State University
 
with a
 
bachelor's
degree in agriculture with a major in poultry science.
As a member of the
 
executive management team of the Company, Walters
 
receives compensation, including base pay, bonuses,
certain employee
 
benefits, and
 
awards under
 
the Company's
 
long-term incentive
 
plan. Walters
 
will receive
 
a base
 
pay of
 
$229,341.
Walter’s will be
 
eligible to receive
 
bonus payments under
 
our general bonus
 
program. Officers in this
 
program are eligible
 
to earn
a bonus equal to 50% of
 
the sum of the officer’s
 
base salary plus such officer’s
 
prior year’s bonus. Walters
 
will also be eligible
to
 
receive
 
stock
 
grants
 
under
 
the
 
Company’s
 
long-term
 
incentive
 
plan
 
(“LTIP”)
 
which
 
is
 
administered
 
by
 
the
 
Long-Term
Incentive Plan
 
Committee. While
 
the LTIP
 
Committee has
 
not developed
 
formal policies
 
concerning the
 
timing of
 
grants and
other
 
matters,
 
its
 
practice
 
has
 
been
 
to
 
authorize
 
grants
 
of
 
restricted
 
shares
 
annually
 
in
 
mid-December,
 
with
 
the
 
grants
 
being
effective the following
 
January. Walters will also receive
 
other customary
 
benefits provided
 
to executive
 
officers of the
 
Company.
There are no
 
arrangements or understandings between
 
Walters and any
 
other person pursuant
 
to which Walters was
 
selected as
an officer of the Company. Walters does not have any family relationship with any director or executive officer of the Company.
There are
 
no related
 
party transactions
 
involving Walters
 
and the
 
Company that
 
require disclosure
 
under Item
 
404(a) of
 
Regulation
S-K.
A copy of the Company’s press release is attached hereto as
 
Exhibit 99.1 to this Current Report.
Supplemental Executive Retirement Plan and Split Dollar Life Insurance Plan
On March
 
24, 2023,
 
the Company
 
adopted the
 
Cal-Maine Foods,
 
Inc. Supplemental
 
Executive Retirement
 
Plan (“SERP”),
 
an
unfunded
 
deferred
 
benefit
 
plan,
 
and
 
a
 
Split
 
Dollar
 
Life
 
Insurance
 
Plan
 
(“Split
 
Dollar Plan”
 
and
 
together
 
with
 
the
 
SERP,
 
the
“Plans”) designed
 
to provide
 
deferred compensation
 
and a
 
pre-retirement death
 
benefit for
 
a select
 
group of
 
management or
 
highly
compensated
 
employees
 
of
 
the
 
Company.
 
The
 
Plans
 
are
 
effective
 
March
 
1,
 
2023
 
and
 
are
 
designed
 
to
 
be
 
exempt
 
from
 
the
requirements of the
 
Employee Retirement Income
 
Security Act of 1974, as
 
amended (“ERISA”) as
 
unfunded arrangements for
the benefit of a select group of highly compensated or management employees.
Sherman
 
Miller,
 
President
 
and
 
CEO,
 
Max
 
Bowman,
 
Vice-President
 
and
 
CFO,
 
and
 
Rob
 
Holladay,
 
Vice-President
 
–
 
General
Counsel are participating in the
 
Plans. Provided the vesting
 
conditions are met, participants
 
in the SERP
 
are eligible to receive an
aggregate Retirement Benefit (as
 
defined in the SERP) of
 
$500,000, which is paid in
 
annual installments of $50,000
 
for 10 years.
A participant
 
becomes vested
 
in the
 
Retirement Benefit
 
over five
 
years of
 
plan participation
 
at 20%
 
per year.
 
If a
 
participant
becomes disabled, attains the retirement age of
 
65, or the Company experiences a change
 
in control, vesting will be accelerated
to 100%. If a participant dies while employed,
 
he or she will not receive any benefits
 
under the SERP, but their beneficiaries will
instead be
 
entitled to the
 
life insurance benefit
 
provided under the
 
Split Dollar Plan,
 
which is $500,000.
 
Participants forfeit all
benefits if terminated for cause.
The Company
 
has the
 
right, in
 
its discretion,
 
to amend
 
or terminate
 
the Plans
 
at any
 
time provided
 
that no
 
amendment shall
deprive a
 
participant or beneficiary
 
of a
 
vested benefit amount
 
accrued prior
 
to the date
 
of the
 
amendment without the
 
written
consent of the
 
participant or beneficiary. A copy of the
 
Plans are filed
 
with this Form
 
8-K as Exhibits
 
No. 10.1 and
 
10.2. As of
the date of this Form 8-K, there are three Participants in the Plans.
 
 
 
Item 9.01.
 
Financial Statements and Exhibits
(d)
 
Exhibits
Exhibit
Number
Description
104
Cover Page Interactive Data File, (embedded within the Inline XBRL document)
SIGNATURES
 
Pursuant to the requirements for the Securities Exchange
 
Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
 
 
 
 
 
CAL-MAINE FOODS, INC.
Date:
March 27, 2023
By:
 
/s/ Max P. Bowman
 
Max P. Bowman
 
Director, Vice President, and Chief Financial Officer
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.
Exhibit 10.2
CAL-MAINE FOODS, INC.
SPLIT DOLLAR LIFE INSURANCE PLAN
Economic Benefit Regime – Endorsement Method
THIS
 
SPLIT
 
DOLLAR
 
LIFE
 
INSURANCE
 
PLAN
(the
 
“Plan”)
 
is
 
established
 
by
Cal-Maine
 
Foods,
Inc.
(the “Company”) as of March 1, 2023.
 
The
 
purpose
 
of
 
this
 
Plan
 
is
 
to
 
attract,
 
retain,
 
and
 
motivate
 
certain
 
highly
 
compensated
 
or
 
management
employees of
 
the Company
 
by assisting
 
them in
 
purchasing life
 
insurance on
 
his or
 
her life
 
that provides
 
a death
benefit
 
to
 
the
 
employee’s
 
Beneficiary.
 
The
 
Company
 
has
 
determined
 
that
 
this
 
assistance
 
can
 
best
 
be
 
provided
under a "split-dollar" arrangement
 
as defined in IRS
 
Treasury Regulation §§1.61-22(b)(1)&(2).
 
The Company will
pay the life insurance premiums due under this Plan from its general assets.
ARTICLE 1
“Definitions”
1.1
 
“Beneficiary”
 
or
 
“Beneficiaries”
 
shall
 
mean
 
the
 
person(s),
 
trust(s)
 
or
 
the
 
estate
 
of
 
a
 
deceased
Participant, entitled to benefits, if any, upon
 
the death of the Participant.
1.2
“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.
1.3
“Code”
shall mean the U.S. Internal Revenue Code of 1986, as amended.
1.4
“Eligible
 
Employee”
 
shall
 
mean
 
an
 
active
 
employee
 
of
 
the
 
Company
 
who
 
the
 
Company
 
has
deemed eligible to participate in this Plan.
1.5
“Insurer”
 
shall
 
mean
 
the
 
insurance
 
company
 
issuing
 
the
 
Policy
 
on
 
the
 
life
 
of
 
a
 
Participant,
 
as
described on the Participation Agreement.
1.6
“Participant”
 
shall mean an Eligible
 
Employee of the Company:
 
(i) who is selected
 
to participate
in the Plan; (ii) who elects
 
to participate in the Plan; and
 
(iii) who completes the requirements of
 
Plan participation
listed in Article 2.
1.7
“Participation
 
Agreement”
 
shall
 
mean
 
the
 
form
 
required
 
by
 
the
 
Plan
 
Administrator
 
of
 
an
Eligible Employee to indicate acceptance of participation in this Plan.
1.8
“Plan Administrator”
 
shall mean the Company or its designee.
 
1.9
“Policy”
shall mean the
 
individual life insurance
 
policy maintained by
 
the Company for
 
purposes
of insuring a Participant’s life under this Plan, as further described in
 
a Participant’s Participation Agreement.
ARTICLE 2
“Participation”
2.1
Selection
 
by
 
Plan
 
Administrator.
Participation
 
in
 
the
 
Plan
 
shall
 
be
 
limited
 
to
 
those
 
Eligible
Employees of the Company selected by the Company in its sole discretion.
 
 
 
 
2.2
Enrollment
 
Requirements.
 
As
 
a
 
condition
 
of
 
participation
 
in
 
the
 
Plan,
 
each
 
selected
 
Eligible
Employee
 
shall
 
complete,
 
execute,
 
and
 
return
 
to
 
the
 
Plan
 
Administrator
 
a
 
Participation
 
Agreement
 
and
 
a
Beneficiary
 
Designation
 
Form
 
within
 
the
 
time
 
specified
 
by
 
the
 
Plan
 
Administrator
 
in
 
accordance
 
with
 
the
 
terms
and
 
conditions
 
of
 
the
 
Plan.
 
The
 
Plan
 
Administrator
 
shall
 
establish
 
such
 
other
 
enrollment
 
requirements
 
as
 
it
determines necessary or advisable.
2.3
Eligibility;
 
Commencement
 
of
 
Participation.
 
Provided
 
an
 
Eligible
 
Employee
 
has
 
met
 
all
enrollment
 
requirements
 
set
 
forth
 
in
 
this
 
Plan
 
and/or
 
required
 
by
 
the
 
Plan
 
Administrator,
 
and
 
provided
 
that
 
the
Policy or Policies
 
on such Eligible
 
Employee have been
 
issued by the
 
Insurer, the
 
Eligible Employee will
 
become
a Participant and thereby will
 
be covered by this Plan
 
and eligible to receive benefits
 
at the time and in
 
the manner
provided herein. A Participant’s participation is limited to
 
only issued Policies where the Participant is the insured.
ARTICLE
 
3
"Purchase of Policy"
3.1
 
The Company
 
and all
 
Participants hereto
 
have taken
 
or will
 
take all
 
necessary action
 
to cause
 
the
Insurer to issue the Policies, and shall take any
 
further action which may be necessary to cause a
 
Policy to conform
to the provisions of
 
this Plan. The parties hereto
 
agree that the Policies
 
shall be subject to
 
the terms and conditions
of this Plan and of the endorsements to the Policies filed with the Insurer.
ARTICLE 4
 
"Policy Title and Ownership"
4.1
 
Title
 
and
 
ownership
 
of
 
a
 
Policy
 
shall
 
reside
 
in
 
the
 
Company
 
for
 
its
 
use
 
and
 
for
 
the
 
use
 
of
 
the
Participants,
 
all
 
in
 
accordance
 
with
 
this
 
Plan. The
 
Company
 
alone
 
may,
 
to
 
the
 
extent
 
of
 
its
 
interest,
 
exercise
 
the
right to borrow or
 
withdraw on the Policy
 
cash value. Where the
 
Company and a
 
Participant (or assignee,
 
with the
consent
 
of
 
the Participant)
 
mutually
 
agree to
 
exercise
 
the
 
right to
 
increase the
 
coverage
 
under the
 
subject
 
Policy
then,
 
in
 
such
 
event,
 
the
 
rights,
 
duties
 
and
 
benefits
 
of
 
the
 
parties
 
to
 
such
 
increased
 
coverage
 
shall
 
continue
 
to
 
be
subject to the terms of this Plan.
ARTICLE 5
“Beneficiary”
5.1
 
Beneficiary
 
Designation.
 
A Participant
 
shall have
 
the right
 
and power
 
to designate
 
a Beneficiary
or Beneficiaries to
 
receive the Participant’s
 
share of the
 
proceeds payable upon
 
the death of the
 
Participant, and to
elect and change
 
a payment option
 
for such Beneficiary,
 
subject to any
 
right or interest
 
the Company may
 
have in
such
 
proceeds,
 
as
 
provided
 
in
 
this
 
Plan.
 
A
 
Participant
 
shall
 
have
 
the
 
right
 
to
 
name
 
such
 
Beneficiary
 
at
 
any
 
time
prior to
 
the Participant’s
 
death and
 
submit it to
 
the Plan Administrator
 
(or Plan
 
Administrator’s representative)
 
on
the written form provided.
 
5.2
 
Beneficiary
 
Acknowledgement.
 
Once received
 
and
 
acknowledged
 
by the
 
Plan Administrator,
 
the
form shall be
 
effective. A Participant
 
may change a
 
Beneficiary designation at
 
any time by
 
submitting a new
 
form
to the Plan
 
Administrator.
 
Any such change
 
shall follow the
 
same rules as
 
for the original
 
Beneficiary designation
and
 
shall
 
automatically
 
supersede
 
the
 
existing
 
Beneficiary
 
form
 
on
 
file
 
with
 
the
 
Plan
 
Administrator.
 
Upon
 
the
acceptance
 
by
 
the
 
Plan
 
Administrator
 
of
 
a
 
new
 
Beneficiary
 
designation
 
form,
 
all
 
previously
 
filed
 
Beneficiary
designation
 
forms
 
shall
 
be
 
cancelled.
 
The
 
Company
 
shall
 
be
 
entitled
 
to
 
rely
 
on
 
the
 
last
 
Beneficiary
 
designation
form filed by a Participant and accepted by the Plan Administrator prior to the Participant’s
 
death.
5.3
 
No Beneficiary Designation. If a Participant
 
dies without a valid Beneficiary Designation
 
Form on
file, or if
 
all designated Beneficiaries
 
predecease a Participant
 
,
 
then the Participant’s
 
surviving spouse
 
shall be the
designated Beneficiary.
 
If a Participant has no
 
surviving spouse, the benefits shall
 
be made payable to the
 
personal
representative of the Participant’s estate.
 
5.4
 
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
 
distribution
 
of
 
such
 
benefit
 
to
 
the
guardian, legal representative or person
 
having the 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 distribution
 
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 6
 
"Premium Payment and Taxable
 
Benefit"
6.1
 
Premium
 
Payment.
 
The
 
Company
 
shall
 
pay
 
an
 
amount
 
equal
 
to
 
the
 
planned
 
premiums
 
and
 
any
other premium payments
 
that might become
 
necessary to keep
 
a Participant’s
 
Policy in force
 
as determined by
 
the
Insurer.
 
Notwithstanding
 
the
 
forgoing,
 
the
 
Company
 
shall
 
have
 
the
 
absolute
 
and
 
sole
 
right
 
to
 
terminate
 
or
surrender the Policy.
6.2
 
Taxable
 
Benefit. The
 
Company shall
 
determine the
 
economic benefit
 
attributable to
 
a Participant
based
 
on
 
the
 
life
 
insurance
 
premium
 
factor
 
for
 
the
 
Participant’s
 
age
 
multiplied
 
by
 
the
 
amount
 
of
 
current
 
life
insurance protection payable
 
to the Participant’s
 
Beneficiary.
 
The “life insurance
 
premium factor” is
 
the minimum
amount
 
required
 
to
 
be
 
imputed
 
under
 
Treasury
 
Regulation
 
§1.61-22(d)(3)(ii)
 
or
 
any
 
subsequent
 
applicable
authority.
6.3
 
Imputed Income.
 
The Company
 
shall impute the
 
economic benefit to
 
the Participant
on an annual
basis, by adding the economic benefit to the Participant’s W-2,
 
or if applicable, Form 1099.
ARTICLE 7
 
"Ownership of the Cash Surrender Value
 
of the Policy"
7.1
 
The Company
 
shall at
 
all times
 
be entitled
 
to one hundred
 
percent
 
(100%)
 
of the Policy
 
cash
value, as
that
 
term
 
is
 
defined
 
in
 
the
 
Policy
 
contract,
 
less
 
any
 
Policy
 
loans
 
and
 
unpaid
interest
 
or
 
cash
 
withdrawals
previously incurred by the Company.
 
Such cash value shall be determined as of the date of surrender
 
or death as the
case may be.
ARTICLE 8
"Rights of Participants or Assignees"
8.1
 
A Participant may
 
not, without the
 
written consent of the
 
Company,
 
assign to any individual,
 
trust
or
 
other organization,
 
any right,
 
title or
 
interest in
 
the subject
 
Policy nor
 
any rights,
 
options, privileges
 
or duties
created under this Plan, other than the right to name a Beneficiary
 
from time
 
to time.
 
ARTICLE 9
"Limitations on Company’s Rights in Policy"
9.1
 
Notwithstanding any
 
provision hereof
 
to the
 
contrary, the
 
Company shall
 
have the
 
right to
 
sell or
surrender a Policy
 
without terminating this Plan,
 
provided: (i) the Company
 
replaces the Policy with
 
a comparable
life insurance
 
policy or
 
arrangement that
 
provides the
 
benefit provided
 
under this
 
Plan; and
 
(ii) the
 
Company and
the
 
Participant
 
(who
 
will
 
not
 
unreasonably
 
withhold
 
his
 
or
 
her
 
signature)
 
execute
 
a
 
new
 
Policy
 
endorsement
 
for
said
 
comparable
 
coverage
 
arrangement,
 
at
 
which
 
time
 
all
 
references
 
to
 
“Policy”
 
hereunder
 
shall
 
refer
 
to
 
such
replacement coverage arrangement. Without limitation, the Policy at all times
 
shall be the exclusive property of the
Company and shall be subject to the claims of the Company’s creditors.
ARTICLE 10
 
"Policy Loans"
10.1
 
The Company
 
may pledge
 
or assign
 
a Policy,
 
subject to
 
the terms
 
and conditions
 
of this
 
Plan, for
the sole
 
purpose of
 
securing
 
a loan
 
from the
 
Insurer
 
or from
 
a third
 
party. Interest
 
charges
 
on such
 
loan shall
 
be
 
 
 
 
paid by
 
the Company.
 
If the
 
Company so
 
encumbers a
 
Policy, other
 
than by
 
a Policy
 
loan from
 
the Insurer,
 
then,
upon
 
the
 
death
 
of
 
the
 
Participant,
 
the
 
Company
 
shall
 
promptly
 
take
 
all
 
action
 
necessary
 
to
 
secure
 
the
 
release
 
or
discharge of such encumbrance.
ARTICLE 11
 
"Division of Death Proceeds"
11.1
 
Participant’s
 
Benefit.
 
Upon
 
the
 
death
 
of
 
a
 
Participant
 
while
 
this
 
Agreement
 
is
 
in
 
force,
 
the
Participant’s Beneficiary
 
shall be entitled to
 
receive Policy death proceeds in
 
the amount stated in the
 
Participant’s
Participation
 
Agreement.
 
The
 
receipt
 
of
 
this
 
amount
 
by
 
the
 
Beneficiary
 
shall
 
constitute
 
satisfaction
 
of
 
the
Participant’s rights under this Agreement.
 
11.2
 
Company’s
 
Benefit.
 
Upon
 
the
 
death
 
of
 
the
 
Participant
 
while
 
this
 
Agreement
 
is
 
in
 
force,
 
the
Company
 
shall be
 
entitled
 
to
 
receive the
 
remainder of
 
the
 
Policy
 
death proceeds
 
not
 
payable under
 
Section
 
11.1
above.
11.3
 
Benefit Paid
 
by Insurer.
 
The benefit
 
payable to
 
a Participant’s
 
Beneficiary shall
 
be paid
 
solely by
the
 
Insurer
 
from
 
the
 
proceeds
 
of
 
the
 
Policy
 
on
 
the
 
life
 
of
 
the
 
Participant.
 
In
 
no
 
event
 
shall
 
the
 
Company
 
be
obligated to pay a death benefit under this Plan from its general funds. Should an Insurer refuse or be unable to
 
pay
death proceeds endorsed to Participant under the express terms of this Plan, or should the Company cancel a Policy
for any reason, neither a Participants nor his or her Beneficiary shall be entitled to a death benefit.
 
11.4
 
Suicide or Misstatement.
 
The amount of
 
the benefit payable
 
to a Participant’s
 
Beneficiary may
 
be
reduced
 
or
 
eliminated
 
if
 
Participant
 
fails
 
or
 
refuses
 
to
 
take
 
a
 
physical
 
examination,
 
to
 
truthfully
 
and
 
completely
supply such
 
information or
 
complete any
 
forms as
 
may be
 
required by
 
the Company
 
or Insurer,
 
or otherwise
 
fails
to cooperate
 
with the
 
requests of
 
the Company
 
or the
 
Insurer,
 
or if
 
the Participant
 
dies under
 
circumstances such
that the
 
Policy does
 
not pay
 
a full
 
death benefit
 
(e.g., in
 
the case
 
of suicide
 
within the
 
exclusionary period
 
of the
Policy); provided, however the
 
Company shall evaluate the
 
reason for the denial,
 
and upon advice of
 
legal counsel
and in its sole discretion, consider judicially challenging any denial.
 
ARTICLE 12
"Termination
 
of the Plan”
12.1
 
This Plan shall terminate upon the occurrence of any one of the following:
 
(1)
 
The total cessation of the business of the Company;
 
(2)
 
The bankruptcy, receivership or dissolution
 
of the Company;
 
(3)
 
The termination of the Insured’s employment;
 
(4) The Participant’s
 
“Disability,”
 
as that term is defined
 
in the Company’s
 
separate Supplemental
Executive Retirement Plan;
 
(5)
 
The
 
Company’s
 
“Change
 
in
 
Control,”
 
as
 
that
 
term
 
is
 
defined
 
in
 
the
 
Company’s
 
separate
Supplemental Executive Retirement Plan;
 
(6)
 
While
 
the
 
Participant
 
is
 
living
 
by
 
written
 
notice
 
thereof
 
by
 
either
 
the
 
Company
 
or
 
the
Participant to the other;
 
(7)
 
Surrender, lapse, or other termination of the Policy by the Company; or
(8)
 
Upon distribution of the death benefit proceeds in accordance with Article X.
Upon the termination
 
of this Plan,
 
the Company may
 
make such disposition
 
of the Policy
 
as it determines
to be appropriate. Participants will have no
 
rights in such Policies or the death
 
benefit proceeds thereof, if this Plan
is terminated.
 
 
 
 
 
 
ARTICLE 13
"Insurer Not a Party”
13.1
 
The
 
Insurer
 
shall
 
be
 
fully
 
discharged
 
from
 
its
 
obligations
 
under
 
a
 
Policy
 
by
 
payment
 
of
 
the
Policy’s death
 
benefit to
 
the Beneficiary
 
or Beneficiaries
 
named in
 
the Policy,
 
subject to
 
the terms
 
and conditions
of the
 
Policy. In
 
no event
 
shall the
 
Insurer be
 
considered a
 
party to
 
this Plan,
 
or any
 
modification or
 
amendment
hereof, and
 
none of
 
the provisions
 
herein shall
 
in any
 
way be
 
construed as
 
enlarging, changing,
 
varying or
 
in any
other
 
way
 
affecting
 
the
 
obligations
 
of
 
the
 
Insurer
 
as
 
expressly
 
provided
 
in
 
the
 
Policy,
 
except
 
insofar
 
as
 
the
provisions hereof are
 
made a part
 
of the Policy
 
by the Beneficiary
 
designation executed by
 
the Company and
 
filed
with the Insurer in connection herewith.
ARTICLE 14
 
"Administration”
14.1
 
Plan
 
Administrator.
 
For
 
purposes
 
of
 
the
 
Employee
 
Retirement
 
Income
 
Security
 
Act
 
of
1974 (“ERISA”), as amended,
 
the Company or its designee
 
will be the "Named Fiduciary"
 
and Plan Administrator
of
 
the
 
split-dollar
 
life
 
insurance
 
plan
 
for
 
which
 
this
 
agreement
 
is
 
hereby
 
designated
 
the
 
written
 
plan
 
instrument.
The
 
Named
 
Fiduciary
 
or
 
the
 
Plan
 
Administrator
 
may
 
employ
 
others
 
to
 
render
 
advice
 
with
 
regard
 
to
 
its
responsibilities
 
under
 
this
 
Plan.
 
The
 
Named
 
Fiduciary
 
may
 
also
 
allocate
 
fiduciary
 
responsibilities
 
to
 
others
 
and
may exercise any other powers necessary for the discharge of its duties to the extent not in conflict with ERISA.
14.2
 
Plan Administrator
 
Duties. The
 
Plan Administrator
 
shall
 
have
 
the
 
discretion
 
and
 
authority
 
to:
 
(i)
make, amend, interpret and enforce all
 
appropriate rules and regulations for the
 
administration of this Plan; and (ii)
decide or resolve
 
any and all
 
questions, including
 
interpretations of this
 
Plan, as may
 
arise in
 
connection with
 
this
Plan.
14.3
 
Binding Effect
 
of Decisions. Any
 
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.
14.4
 
Indemnity
 
of Plan
 
Administrator. The
 
Company
 
shall indemnify
 
and
 
hold
 
harmless the
 
members
of
 
the
 
Plan Administrator,
 
and
 
those
 
to
 
whom
 
management
 
and
 
operation
 
responsibilities
 
of
 
the
 
Plan
 
have
 
been
delegated, against
 
any and
 
all claims,
 
losses, damages,
 
expenses or
 
liabilities arising
 
from any
 
action or
 
failure to
act
 
with
 
respect
 
to
 
this
 
Plan,
 
except
 
in
 
the
 
case
 
of
 
willful
 
misconduct
 
by
 
the
 
Plan
 
Administrator
 
or
 
any
 
of
 
its
members.
ARTICLE 15
 
"Claims and Review Procedures”
15.1
 
Written Claim.
 
A person who believes that he or she
 
is being denied a benefit to
 
which he or she
 
is
entitled under
 
this Plan (a “Claimant”)
 
may file a written request
 
for such benefit with the Plan
 
Administrator,
 
setting
forth his
 
or her claim.
 
The request
 
must be
 
addressed
 
to the Company
 
at its
 
then principal
 
place of
 
business.
15.2
 
Timing of Response.
 
Upon receipt
 
of a claim,
 
the Plan
 
Administrator
 
shall advise the
 
Claimant that
 
a
reply will be forthcoming within ninety (90) days and shall, in
 
fact, deliver such reply within such period.
 
The Plan
Administrator may, however, extend the reply period
 
for an
 
additional ninety (90) days for
 
reasonable cause. If the
claim is denied in whole or in part, the Plan
 
Administrator
 
shall adopt a written opinion,
 
using language calculated
 
to
be understood
 
by the Claimant,
 
setting
 
forth:
 
(1) The
 
specific
 
reason or
 
reasons
 
for such
 
denial;
(2) The
 
specific
 
reference
 
to pertinent
 
provisions
 
of this
 
Plan on
 
which such
 
denial is
 
based;
(3)
 
A description
 
of any additional
 
material
 
or information
 
necessary
 
for the Claimant
 
to perfect
 
his or
her claim
 
and an
 
explanation
 
why such
 
material
 
or such
 
information
 
is necessary;
 
 
 
 
 
 
 
(4)
 
Appropriate
 
information
 
as to the steps
 
to be taken if the
 
Claimant wishes
 
to submit the claim
 
for
review;
 
and
(5) The
 
time limits
 
for requesting a
 
review under
 
Section 15.3
 
and for
 
review under
 
Section 15.4
hereof.
 
15.3
 
Request for Review. Within sixty (60) days
 
after the receipt by
 
the Claimant of the
 
written opinion
described in Section 15.2,
 
the Claimant may
 
request in
 
writing that the
 
determination of the
 
Plan Administrator be
reviewed.
 
Such request
 
must be addressed
 
to the Company,
 
at its then principal
 
place of business.
 
The Claimant
 
or his
or
 
her
 
duly
 
authorized representative
 
may,
 
but
 
need
 
not,
 
review
 
the
 
pertinent
 
documents and
 
submit
 
issues
 
and
comments
 
in writing
 
for consideration
 
by the Plan
 
Administrator.
 
If the Claimant
 
does not request
 
a review of
 
the Plan
Administrator’s determination
 
within
 
such
 
sixty
 
(60)
 
day
 
period,
 
he
 
or
 
she
 
shall
 
be
 
barred
 
and
 
estopped
 
from
challenging
 
the Plan
 
Administrator’s
 
determination.
15.4
 
Review of Decision.
 
The Plan
 
Administrator
 
will review
 
its determination
 
within sixty
 
(60) days after
receipt of a request for review.
 
After considering
 
all materials presented
 
by the Claimant, the Plan Administrator
 
will
render a written opinion, written in
 
a manner calculated to be
 
understood by the Claimant, setting forth the
 
specific
reasons
 
for
 
the
 
decision and
 
containing specific
 
references to
 
the
 
pertinent provisions
 
of
 
this
 
Plan
 
on
 
which
 
the
decision
 
is
 
based.
 
If
 
special
 
circumstances
 
require
 
that
 
the
 
sixty
 
(60)
 
day
 
time
 
period
 
be
 
extended,
 
the
 
Plan
Administrator will so
 
notify the
 
Claimant and
 
will
 
render the
 
decision as
 
soon
 
as
 
possible, but
 
no
 
later than
 
one
hundred
 
twenty
 
(120) days
 
after receipt
 
of the request
 
for review.
 
ARTICLE 16
 
"Amendment"
16.1
 
This Plan may
 
not be amended,
 
altered, or modified,
 
except by a
 
written instrument signed
 
by the
parties hereto,
 
or their
 
respective successors
 
or assigns,
 
and may
 
not be
 
otherwise terminated
 
except as
 
provided
herein.
ARTICLE 17
"Miscellaneous"
17.1
 
Binding
 
Effect. This
 
Plan
 
shall be
 
binding
 
upon and
 
inure to
 
the benefit
 
of the
 
Company and
 
its
successors and
 
assigns, and
 
upon the
 
death of
 
a Participant,
 
the Participant’s
 
successors, assigns,
 
heirs, executors,
administrators and beneficiaries.
17.2
 
No Guarantee of Employment. This
 
Plan is not an
 
employment policy or contract.
 
It does not give
a Participant
 
the
 
right
 
to
 
remain an
 
employee
 
of
 
the Company,
 
nor does
 
it interfere
 
with
 
the
 
Company’s
 
right
 
to
discharge
 
a
 
Participant.
 
It
 
also
 
does
 
not
 
require
 
a
 
Participant
 
to
 
remain
 
an
 
employee
 
nor
 
interfere
 
with
 
the
Participant’s right to terminate employment at any time.
17.3
 
Notices. 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 to
 
a party
 
hereto, it
 
shall be
 
sent by
 
United States
 
certified mail,
 
postage prepaid,
 
addressed to
such
 
party’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.
17.4
 
Applicable
 
Law.
 
This
 
Plan
 
and
 
the
 
rights
 
of
 
the
 
parties
 
hereunder,
 
shall
 
be
 
governed
 
by
 
and
construed according to the
 
laws of the State
 
of Nebraska, except to
 
the extent preempted by
 
the laws of the
 
United
States of America.
17.5
 
Gender.
 
Whenever
 
in
 
this
 
Plan
 
words
 
are
 
used
 
in
 
the
 
masculine
 
or
 
neutral
 
gender,
 
they
 
shall
 
be
read and construed as in the masculine, feminine or neutral gender, whenever they should so apply.
 
 
 
17.6
 
No Third Party Beneficiaries. The
 
benefits of this Plan
 
shall not inure to any
 
third party.
 
This Plan
shall not be
 
construed as creating
 
any rights, claims,
 
or cause of
 
action against the
 
Company or any
 
of its officers,
directors, agents, or employees in favor of any person or entity other than the Participant.
 
17.7
 
Severability.
 
If
 
any
 
one
 
or
 
more
 
of
 
the
 
provisions
 
hereof
 
is
 
declared
 
invalid,
 
illegal,
 
or
unenforceable in
 
any jurisdiction,
 
the validity,
 
legality,
 
and enforceability
 
of the
 
remaining provisions
 
shall not
 
in
any
 
way
 
be
 
affected
 
or
 
impaired,
 
and
 
that
 
invalidity,
 
illegality,
 
or
 
unenforceability
 
in
 
one
 
jurisdiction
 
shall
 
not
affect the validity,
 
legality, or enforceability of the remaining
 
provisions hereof.
17.8
 
Entire
 
Agreement.
 
This
 
written
 
plan
 
document,
 
along
 
with
 
a
 
Participant’s
 
Policy
 
endorsement,
Beneficiary
 
Designation
 
Form,
 
and
 
Participation
 
Agreement,
 
constitutes
 
the
 
entire
 
agreement
 
between
 
the
Company and the
 
Participant as to
 
the subject matter
 
hereof. No rights
 
are granted to
 
a Participant under
 
this Plan
other than those specifically set forth herein.
IN WITNESS WHEREOF,
 
the Company executes this Plan as of the date first written above.
Exhibit 99.1
-END-
Contacts:
Sherman
 
Miller,
 
President
 
and
 
CEO
Max
 
P.
 
Bowman,
 
Vice
 
President
 
and
 
CFO
(601)
 
948-6813
CAL-MAINE FOODS, INC. NAMES TODD WALTERS CHIEF OPERATING OFFICER
MATT WHITEMAN NAMED VICE PRESIDENT, OPERATIONS
RIDGELAND,
 
Miss.
 
(March
 
27,
 
2023)
—
 
Cal-Maine
 
Foods,
 
Inc.
 
(NASDAQ:
 
CALM)
 
today
announced
 
that
 
Todd
 
Walters
 
has
 
been
 
named
 
Chief
 
Operating
 
Officer
 
and
 
Matt
 
Whiteman
 
has
been
 
named
 
Vice
 
President,
 
Operations,
 
both
 
effective
 
March
 
27,
 
2023.
 
Walters
 
joined
 
Cal-Maine
 
Foods
 
in
 
1997.
 
Since
 
2011,
 
he
 
has
 
served
 
as
 
Vice
 
President
 
of
Operations
 
for
 
the
 
Company’s
 
operations
 
in
 
South
 
Texas,
 
as
 
well
 
as
 
the
 
Wharton
 
County
 
Foods
facility
 
in
 
Boling,
 
Texas.
 
He
 
has
 
previously
 
served
 
in
 
management
 
positions
 
at
 
the
 
Company’s
 
other
locations
 
in
 
Mississippi,
 
Kansas,
 
New
 
Mexico,
 
and
 
Ohio.
 
Walters
 
has
 
served
 
on
 
the
 
Board
 
of
 
The
Ohio
 
Poultry
 
Association
 
and
 
The
 
Texas
 
Poultry
 
Federation
 
where
 
he
 
is
 
currently
 
ex-officio.
 
He
 
is
also
 
an
 
active
 
member
 
of
 
the
 
United
 
Egg
 
Producers.
 
Walters
 
is
 
a
 
graduate
 
of
 
Mississippi
 
State
University
 
with
 
a
 
bachelor's
 
degree
 
in
 
poultry
 
science.
Whiteman
 
has
 
been
 
employed
 
with
 
Cal-Maine
 
Foods
 
since
 
2011.
 
He
 
most
 
recently
 
served
as
 
General
 
Manager
 
of
 
the
 
Waelder,
 
Texas,
 
operations.
 
Prior
 
to
 
this,
 
he
 
served
 
in
 
management
positions
 
at
 
various
 
locations
 
including
 
Edwards,
 
Mississippi;
 
Bremen,
 
Kentucky;
 
Guthrie,
Kentucky;
 
and
 
Boling,
 
Texas.
 
Whiteman
 
is
 
active
 
in
 
the
 
Texas
 
Poultry
 
industry
 
and
 
is
 
currently
 
the
President
 
of
 
the
 
Texas
 
Egg
 
Council,
 
along
 
with
 
serving
 
as
 
a
 
Board
 
Member
 
of
 
the
 
Texas
 
Poultry
Federation.
 
Whiteman
 
is
 
a
 
graduate
 
of
 
Mississippi
 
State
 
University
 
with
 
a
 
bachelor’s
 
degree
 
in
poultry
 
science.
Commenting
 
on
 
the
 
announcements,
 
Sherman
 
Miller,
 
president
 
and
 
chief
 
executive
 
officer
of
 
Cal-Maine
 
Foods,
 
Inc.,
 
stated,
 
“We
 
are
 
pleased
 
to
 
announce
 
these
 
important
 
new
 
leadership
changes.
 
Todd
 
Walters
 
is
 
well
 
qualified
 
to
 
assume
 
this
 
role,
 
having
 
extensive
 
experience
 
with
 
the
various
 
aspects
 
of
 
our
 
operations
 
across
 
different
 
locations
 
and
 
market
 
regions.
 
He
 
has
 
done
 
an
exceptional
 
job
 
at
 
every
 
stage
 
of
 
his
 
26-year
 
career
 
with
 
Cal-Maine
 
Foods.
 
He
 
is
 
also
 
a
 
recognized
leader
 
outside
 
the
 
Company
 
as
 
an
 
active
 
member
 
of
 
industry
 
associations.
 
We
 
will
 
continue
 
to
benefit
 
from
 
his
 
valuable
 
insight
 
and
 
experience
 
as
 
we
 
pursue
 
our
 
goal
 
to
 
be
 
an
 
efficient
 
and
sustainable
 
producer.
 
“Matt
 
Whiteman
 
brings
 
over
 
12
 
years
 
of
 
dedicated
 
service
 
to
 
the
 
Company
 
and
 
has
 
played
an
 
important
 
role
 
in
 
managing
 
our
 
Texas
 
operations.
 
His
 
previous
 
experience
 
working
 
at
 
our
 
other
locations
 
and
 
knowledge
 
of
 
other
 
markets
 
brings
 
an
 
added
 
perspective
 
to
 
this
 
leadership
 
role.
 
We
welcome
 
him
 
to
 
our
 
operations
 
management
 
team,
 
and
 
we
 
look
 
forward
 
to
 
working
 
with
 
Matt
 
as
we
 
continue
 
to
 
serve
 
our
 
valued
 
customers
 
in
 
the
 
Texas
 
markets,”
 
added
 
Miller.
Cal-Maine
 
Foods,
 
Inc.
 
is
 
primarily
 
engaged
 
in
 
the
 
production,
 
grading,
 
packing,
 
marketing
and
 
sale
 
of
 
fresh
 
shell
 
eggs,
 
including
 
conventional,
 
cage-free,
 
organic,
 
pasture-raised,
 
free-range
and
 
nutritionally
 
enhanced
 
eggs.
 
The
 
Company,
 
which
 
is
 
headquartered
 
in
 
Ridgeland,
 
Mississippi,
is
 
the
 
largest
 
producer
 
and
 
distributor
 
of
 
fresh
 
shell
 
eggs
 
in
 
the
 
United
 
States
 
and
 
sells
 
the
 
majority
of
 
its
 
shell
 
eggs
 
in
 
states
 
across
 
the
 
southwestern,
 
southeastern,
 
mid-western
 
and
 
mid-Atlantic
regions
 
of
 
the
 
United
 
States.