Exhibit 10.4
WINN-DIXIE STORES. INC.
-----------------------
SUPPLEMENTAL RETIREMENT PLAN
Effective Date: June 15, 2000
TABLE OF CONTENTS
ARTICLE PAGE
------- ----
I - Definitions and Construction I-1
II - Participation II-1
III - Account Credits and Allocations of Income or Loss III-1
IV - Deemed Investment of Funds IV-1
V - Determination of Vested Interest and Forfeitures V-1
VI - In-Service Distributions VI-1
VII - Termination Benefits VII-1
VIII - Administration of the Plan VIII-1
IX - Administration of Funds IX-1
X - Nature of the Plan X-1
XI - Adopting Entities XI-1
XII - Miscellaneous XII-1
(i)
WINN-DIXIE STORES, INC.
SUPPLEMENTAL RETIREMENT PLAN
WITNESSETH:
WHEREAS, WINN-DIXIE STORES, INC., desiring to aid certain of its employees
in making more adequate provision for their retirement, has decided to adopt the
following WINN-DIXIE STORES, INC. SUPPLEMENTAL RETIREMENT PLAN (the "Plan");
NOW THEREFORE, the Plan is hereby adopted as follows, effective as of June
15, 2000:
(ii)
ARTICLE I
Definitions and Construction
1.1 Definitions. The capitalized words or terms used in the Plan and which
are not otherwise defined herein shall have the same meanings as such words or
terms have in the Profit Sharing 401(k) Plan, as the same may be amended from
time to time. Where the following words and phrases appear in the Plan, they
shall have the respective meanings set forth below, unless their context clearly
indicates to the contrary.
(1) Account(s): A Member's Company Account and/or Deferral Account, including
the amounts credited thereto. ----------
(2) Affiliates: The Company's "Affiliates," as such term is defined under the
Profit Sharing 401(k) Plan.
(3) Code: The Internal Revenue Code of 1986, as amended.
(4) Committee: The administrative committee appointed by the Directors to
administer the Plan.
(5) Company. Winn-Dixie Stores, Inc. and any other adopting entity which adopts
the Plan pursuant to the provisions of Article XI jointly and severally.
(6) Company Account: An individual account for each Member to which is credited
the Company Deferrals made on his behalf pursuant to Section 3.2 and which
is credited (or debited) for such account's allocation of net income (or
net loss) as provided in Section 3.3.
(7) Company Deferrals: Deferrals made by the Company on a Member's behalf
pursuant to Section 3.2.
(8) Compensation: Amounts equal to a Member's "Compensation," as such term is
defined under the Profit Sharing 401(k) Plan, including amounts a Member
could have received in cash in lieu of Member Deferrals pursuant to Section
3.1, and without regard to the maximum dollar limitation of section
401(a)(17) of the Code.
(9) Deferral Account: An individual account for each Member to which is
credited his Member Deferrals pursuant to Section 3.1 and which is credited
(or debited) for such account's allocation of net income (or net loss) as
provided in Section 3.3.
(10) Directors: The Board of Directors of Winn-Dixie Stores, Inc.
I-1
(11) Disability: A Member's "Disability," as such term is defined under the
Profit Sharing 401(k) Plan.
(12) Effective Date: July 1, 1994.
(13) Election Date: The first day of each Plan Year.
(14) Funds: The investment funds designated from time to time for the deemed
investment of Accounts pursuant to Article IV.
(15) Member: Each individual who is eligible for participation in the Plan and
who has become a Member pursuant to Article II.
(16) Member Deferrals: Deferrals made by a Member pursuant to Section 3.1.
(17) Plan: The Winn-Dixie Stores, Inc. Supplemental Retirement Plan, as amended
from time to time.
(18) Plan Year: The twelve-consecutive month period commencing July 1 of each
year. Effective January 1, 2001, the Plan Year shall be the calendar year.
(19) Profit Sharing 401(k) Plan: The Winn-Dixie Stores, Inc. Profit Sharing
401(k) Plan, as amended from time to time.
(20) Retirement Date. The date upon which such Member has attained sixty-five
years of age.
(21) Trust: The trust, if any, established under the Trust Agreement
(22) Trust Agreement: The agreement, if any, entered into between the Company
and the Trustee pursuant to Article X.
(23) Trust Fund: The funds and properties, if any, held pursuant to the
provisions of the Trust Agreement, together with all income, profits and
increments thereto.
(24) Trustee: The trustee or trustees appointed by the Directors who are
qualified and acting under the Trust Agreement at any time.
(25) Valuation Dates: The last business day of each calendar month and any other
interim Valuation Date determined by the Committee on a nondiscriminatory
basis.
(26) Vested Interest: The portion of a Member's Accounts which, pursuant to the
Plan, is nonforfeitable.
I-2
1.2 Number and Gender. Wherever appropriate herein, words used in the
singular shall be considered to include the plural and words used in the plural
shall be considered to include the singular. The masculine gender, where
appearing in the Plan, shall be deemed to include the feminine gender.
1.3 Headings. The headings of Articles and Sections herein are included
solely for convenience, and if there is any conflict between such headings and
the text of the Plan, the text shall control.
I-3
ARTICLE II.
Participation
2-1 Eligibility.
(a) Any employee of the Company as of July 1, 1994 who, with respect
to the "Plan Year" ending June 30, 1994 under the Profit Sharing 401(k)
Plan, (1) was a "Member," (2) was a "Highly Compensated Employee" and (3)
elected a 5% contribution rate for "Before-Tax Contributions" for such
entire "Plan Year" shall be eligible to become a Member of the Plan for the
Plan Year commencing July 1, 1994 by electing to make Member Deferrals
pursuant to Section 3.1(a) of the Plan.
(b) Any employee of the Company who, with respect to a "Plan Year"
under the Profit Sharing'401(k) Plan, (1) is a "Member," (2) is a "Highly
Compensated Employee" and (3) elects the maximum contribution rate
allowable under the Plan for "Before-Tax Contributions" for such entire
"Plan Year" shall be eligible to become a Member of the Plan for such Plan
Year by electing to make Member Deferrals pursuant to Section 3.1(1,) of
the Plan.
(c) Any employee of the Company who is a "Highly Compensated
Employee", as such term is defined in Section 414(q) of the Code, shall be
eligible to become a Member of the Plan by electing to make Member
Deferrals pursuant to Section 3.1(c) of the Plan.
(d) Any employee of the Company who, with respect to a "Plan Year"
under the Profit Sharing/401(k) Plan, (1) is a "Member," (2) is a "Highly
Compensated Employee" and (3) elects the maximum contribution rate
allowable under the Plan for "Before-Tax Contributions" for such entire
"Plan Year" shall become a Member of the Plan for the Plan Year with
respect to Company Deferrals pursuant to Section 3.2(1,).
(e) Any employee of the Company who:
(1) is eligible to become a Member of the Plan under Section
2.1(c) but who has not yet met the eligibility requirements for
participation in the Company's Profit Sharing 401(k) Plan and
therefore is not eligible to make deferrals pursuant to Section 3.2(c)
of the Plan; and
(2) elects to become a Member of the Plan and defer a portion of
his or her Compensation pursuant to Section 3.1(c) of the Plan;
shall be entitled to receive Company Deferrals pursuant to
Section 3.2(d) for the period of time commencing on the date the
employee elects to become a
II-1
Member of the Plan and defer a portion of his or her Compensation pursuant to
Section 3.1(c) and ending on the date such Member becomes eligible to
participate in the Company's Profit Sharing 401(k) Plan. After the date the
Member becomes eligible to participate in the Company's Profit Sharing 401(k)
Plan, he or she shall be entitled to receive Company Deferrals pursuant to
Section 3.2(c) of the Plan.
22 Participation.
(a) The Committee shall notify those employees of the Company who are
determined by the Committee to be eligible to initially become Members
pursuant to Section 2.1(a), (b), or (c). Any such eligible employee may
become a Member of the Plan by executing and filing with the Committee the
Member Deferral election prescribed by the Committee within 60 days of such
notification.
(b) Notwithstanding any provision herein to the contrary, an
individual who has become a Member of the Plan shall cease to be entitled
to make Member Deferrals hereunder or receive Company Deferrals hereunder
effective as of any date designated by the Committee. Any such Committee
action shall be communicated to the affected individual prior to the
effective date of such action. Any such individual may again become
entitled to make Member Deferrals hereunder and receive Company Deferrals
hereunder beginning on any subsequent Election Date selected by the
Committee in its sole discretion.
II-2
ARTICLE III.
Account Credits and Allocations of Income or Loss
3.1 Member Deferrals.
(a) A Member meeting the eligibility requirements of Section 2.1(a)
may elect to defer a portion of his Compensation for the Plan Year
commencing July 1, 1994 equal to the reduction in his "Before-Tax
Contributions" under the Profit Sharing'401(k) Plan for the "Plan Year"
ending June 30, 1994 as a result of the limitations contained in section
401(a)(17), 401(k)(3), 402(g) and/or 415 of the Code.
(1,) A Member meeting the eligibility requirements of Section 2.1(1)
may elect to defer a portion of his Compensation for a Plan Year equal to
the reduction in his "Before-Tax Contributions" under the Profit Sharing
401(k) Plan for such "Plan Year" as a result of the limitations contained
in section 401(a)(17), 401(k)(3), 402(g) and/or 415 of the Code.
(c) A Member meeting the eligibility requirements of Section 2.1(c)
may elect to defer an integral percentage of from 1% to 25% of his
Compensation for a Plan Year.
(d) Compensation for a Plan Year not so deferred by such election
pursuant to this Section shall be received by such Member in cash. A
Member's election to defer an amount of his Compensation pursuant to this
Section shall be made by executing and delivering a Compensation deferral
election pursuant to which the Member authorizes the Company to reduce his
Compensation in the elected amount and the Company, in consideration
thereof, agrees to credit an equal amount to such Member's Deferral Account
maintained under the Plan. Compensation deferrals made by a Member shall be
credited to such Member's Deferral Account as of a date determined in
accordance with procedures established from time to time by the Committee;
provided, however, that such deferrals shall be credited to the Member's
Deferral Account no later than the 15th business day of the month following
the month during which the Compensation deferred would have been received
by such Member in cash if he had not elected to defer such amount pursuant
to this Section 3.1. The reduction in a Member's Compensation for a Plan
Year pursuant to his Compensation deferral election shall be effected by
Compensation reductions within such Plan Year following the effective date
of such election.
(e) A Member's Compensation deferral election shall become effective
no later than thirty (30) days after the date the election is executed by
the Member and filed
III-1
with the Company. A Member's Compensation deferral election shall remain in
force and effect for the entire Plan Year to which such election relates. A
Member's Compensation deferral election pursuant to Section 3.1(1,) and
Section 3.1(c) shall remain in force and effect for each subsequent Plan
Year (following his initial year of participation in the Plan) for which he
satisfies the eligibility requirements set forth in Section 2.1, unless and
until such election is changed or revoked by such Member prior to the
Election Date of a subsequent Plan Year to which such change or revocation
relates.
(f) A Member who has made a Compensation deferral election pursuant to
Section 3.1(c) may change his election, as of the Election Date of any
subsequent Plan Year, by executing and delivering to the Company a new
Compensation deferral election prior to such Election Date and within the
time period prescribed by the Committee.
(g) A Member who has made a Compensation deferral election pursuant
Section 3.1(1,) or Section 3.1(c) may cancel his election, as of the
Election Date of any subsequent Plan Year, by executing and delivering to
the Company the form prescribed by the Committee prior to such Election
Date and within the time period prescribed by the Committee. A Member who
so cancels his Compensation deferral election may again make a new
Compensation deferral election for a subsequent Plan Year, if he satisfies
the eligibility requirements set forth in Section 2.1, by executing and
delivering to the Company a new Compensation deferral election prior to the
Election Date of such Plan Year and within the time period prescribed by
the Committee.
(h) A Member's Compensation deferral election shall indicate the
applicable form of payment, as provided in Section 7.3, for the
Compensation deferred thereunder and the net income (or net loss) allocated
with respect thereto.
(i) As of any date selected, the Company may credit the Accounts of an
individual who is a Member on such date with such amount, if any, as the
Company shall determine in its sole discretion. Such credits may be made on
behalf of some of such Members but not others, and such credits may vary in
amount among such individual Members.
3.2 Company Deferrals.
(a) For each calendar month, the Company shall credit a Member's
Company Account with an amount which equals 50% of the contributions made
pursuant to Section 3.1(a) and/or Section 3.1(1,) on behalf of such Member
during such month.
III-2
(b) As of the last day of each Plan Year in which the "Matching
Contributions" for the "Plan Year" under the Profit Sharing 401(k) Plan on
behalf of a Member are limited as a result of the limitations contained in
section 401(m)(2) and/or section 415, the Company shall credit such
Member's Company Account with an amount equal to the reduction in such
Member's share of such "Matching Contributions" to the Profit Sharing
401(k) Plan as a result solely of the application of such limitations.
(c) As of the last day of each Plan Year in which the "Employer
Contributions" for the "Plan Year" under the Profit Sharing (401(k) Plan on
behalf of a Member are limited as a result of the limitations contained in
section 401(a)(17) and/or section 415, the Company shall credit a special
subaccount within such Member's Company Account with an amount equal to the
reduction in such Member's share of such "Employer Contributions" to the
Profit Sharing(401(k) Plan as a result solely of the application of such
limitations.
(d) As of the last day of each Plan Year in which a Member is entitled
to receive Company Deferrals pursuant to Section 2.1(e) of the Plan, the
Company shall credit the Company Account established on behalf of such
Member with an amount equal to the amount of "Employer Contributions" such
Member would have received under the Company's profit Sharing 401(k) Plan
(without taking into account any of the limitations contained in Section
401(a)(17) and/or Section 415 of the Code) if such Member had been eligible
to participate.
III-3
3-3 Allocation of Net Income or Loss and Changes In Value Among Accounts.
(a) As of each Valuation Date, the Committee shall determine the net
income (or net loss) of each Fund for the period elapsed since the next
preceding Valuation Date. The net income (or net loss) of each Fund since
the next preceding Valuation Date shall be ascertained by the Committee in
such manner as it deems appropriate, based upon the net asset value of each
such Fund as of the applicable Valuation Date, which may include expenses
of administering the Fund, the Trust and the Plan.
(1,) For purposes of allocations of net income (or net loss),
each Member's Accounts shall be divided into subaccounts to reflect
such Member's deemed investment designation in a particular Fund or
Funds pursuant to Article IV. As of each Valuation Date, the net
income (or net loss) of each Fund, separately and respectively, shall
be allocated among the corresponding subaccounts of the Members who
had such corresponding subaccounts invested in such Funds since the
next preceding Valuation Date.
(c) So long as there is any balance in any Account, such Account shall
continue to receive allocations pursuant to this Section.
III-4
ARTICLE IV.
Deemed Investment of Funds
Each Member shall designate, in accordance with the procedures
established from time to time by the Committee, the manner in which the amounts
allocated to his Accounts shall be deemed to be invested from among the Funds
made available from time to time for such purpose by the Committee. Such Member
may designate one of such Funds for the deemed investment of all the amounts
allocated to his Accounts or he may split the deemed investment of the amounts
allocated to his Accounts between such Funds in such increments as the Committee
may prescribe. if a Member fails to make a proper designation, then his Accounts
shall be deemed to be invested in the Fund or Funds designated by the Committee
from time to time in a uniform and nondiscriminatory manner.
A Member may change his deemed investment designation for future amounts
to be allocated to his Accounts. Any such change shall be made in accordance
with the procedures established by the Committee, and the frequency of such
changes may be limited by the Committee.
A Member may elect to convert his deemed investment designation with
respect to the amounts already allocated to his Accounts. Any such conversion
shall be made in accordance with the procedures established by the Committee,
and the frequency of such conversions may be limited by the Committee.
IV-1
ARTICLE V.
Determination of Vested Interest and Forfeitures
5.1 Deferral Account. A Member shall have a 100% Vested Interest in his
Deferral Account at all times.
5.2 Company Account A Member shall have a Vested Interest in his Company
Account (other than the portion attributable to the special subaccount
referred to in Section 3.2(c)) equal to his "Vesting Percentage" in his
"Matching Contributions Account" under the Profit Shanng'401(k) Plan. A
Member shall have a Vested Interest in the portion of his Company Account
attributable to the special subaccount referred to in Section 3.2(c) equal
to his "Vesting Percentage" in his "Employer Contributions Account" under
the Profit Sharing/401(k) Plan. A Member shall have a 100% Vested Interest
in his Company Account upon his termination of employment with the Company
and its Affiliates after attainment of his Retirement Date or by reason of
death or Disability. Further, a Member shall have a 100% Vested Interest in
his Company Account upon his termination of employment with the Company and
its Affiliates as a result of the closing of an entire store, plant
facility or warehouse, or the elimination of a complete shift, or
department, in a plant facility or warehouse.
5.3 Forfeitures. A Member who terminates employment with the Company and its
Affiliates with a Vested Interest in his Company Account that is less than
100% shall forfeit to the Company the nonvested portion of such Account as
of the date of such termination.
V-1
ARTICLE VI.
In-Service Distributions
In-service distributions shall not be permitted under the Plan. Members
shall not be permitted to make withdrawals from the Plan prior to termination of
employment with the Company and its Affiliates. Members shall not, at any time,
be permitted to borrow from the Trust Fund. Following termination of employment
with the Company and its Affiliates, the amounts credited to a Member's Accounts
shall be payable to such Member in accordance with the provisions of Article
VII.
VI-1
ARTICLE VII.
Termination Benefits
7.1 Amount or Benefit. Upon termination of employment of a Member with the
Company and its Affiliates for any reason, the Member, or, in the event of the
death of the Member while employed by the Company, the Member's designated
beneficiary, shall be entitled to a benefit equal in value to the Member's
Vested Interest in the balance in his Accounts as of the Valuation Date next
preceding the date the payment of such benefit is to commence pursuant to
Section 72.
72 Time of Payment. Payment of a Member's benefit under Section 7.1 shall
commence as soon as administratively practicable after the Valuation Date
coincident with or next succeeding the date the Member terminates his employment
with the Company and its Affiliates.
7.3 Alternative Forms or Benefit Payments. A Member's benefit under Section
7.1shall be paid in one of the following forms irrevocably elected by such
Member in writing on the form prescribed by the Committee on or before the date
he becomes a Member of the Plan:
(1) A single lump sum, cash payment; or
(2) Annual installment payments for a term certain of either 5 or
10 years payable to the Member or, in the event of such Member's death
prior to the end of such term certain, to his designated beneficiary as
provided in Section 7.4.
In the event such Member fails to timely elect the form in which his benefit
payments are to be made, such benefit payments shall be in the form of annual
installment payments for a term certain of 10 years payable to such Member or,
in the event of such Member's death prior to the end of such term certain, to
his designated beneficiary as provided in Section 7.4. if a Member dies prior to
the date the payment of his benefit begins and if the Member failed to timely
elect the form in which his benefit payments are to be made, then benefit
payments shall be made to the Member's designated beneficiary in the form
described in the preceding sentence. if a Member dies prior to the date the
payment of his benefit begins and if the Member did timely elect the form in
which his benefit payments are to be made, then benefit payments shall be made
to the Member's designated beneficiary in the form elected by the Member.
7.4 Designation of Beneficiaries.
(a) Each Member shall have the right to designate the beneficiary or
beneficiaries to receive payment of his benefit in the event of his death. Each
such
VII-1
designation shall be made by executing the beneficiary designation form
prescribed by the Committee and filing same with the Committee. Any such
designation may be changed at any time by execution of a new designation in
accordance with this Section.
b) If no such designation is on file with the Committee at the time of the
death of the Member or such designation is not effective for any reason as
determined by the Committee, then the designated beneficiary or beneficiaries to
receive such benefit shall be as follows:
(1)If a Member leaves a surviving spouse, his benefit shall be paid to
such surviving spouse;
(2)If a Member leaves no surviving spouse, his benefit shall be paid
to such Member's executor or administrator, or to his heirs at law if there
if no administration of such Member's estate.
7.5 Accelerated Pay-Out or Certain Benefits. Notwithstanding any
provision in Section 7.3 to the contrary, if a Member's benefit payments are to
be paid in a form other than a single lump sum, cash payment and the aggregate
amount to be paid with respect to such Member in any particular calendar year is
less than $10,000, then the Committee may, in its sole discretion, elect to
cause the entire remaining Account balance with respect to such Member to be
paid in a single lump sum, cash payment.
7.6 Payment of Benefits. To the extent the Trust Fund has sufficient
assets, the Trustee shall pay benefits to Members or their beneficiaries, except
to the extent the Company pays the benefits directly and provides adequate
evidence of such payment to the Trustee. To the extent the Trustee does not or
cannot pay benefits out of the Trust Fund, the benefits shall be paid by the
Company. Any benefit payments made to a Member or for his benefit pursuant to
any provision of the Plan shall be debited to such Member's Accounts. All
benefit payments shall be made in cash to the fullest extent practicable.
7.7 Unclaimed Benefits. In the case of a benefit payable on behalf of a
Member, if the Committee is unable to locate the Member or beneficiary to whom
such benefit is payable, upon the Committee's determination thereof, such
benefit shall be forfeited to the Company. Notwithstanding the foregoing, if
subsequent to any such forfeiture the Member or beneficiary to whom such benefit
is payable makes a valid claim for such benefit, such forfeited benefit shall be
restored to the Plan by the Company.
VII-2
ARTICLE VIII.
Administration of the Plan
8.1 Appointment of Committee. The general administration of the Plan
shall be vested in the Committee which shall be appointed by the Directors and
shall consist of one or more persons. Any individual, whether or not an employee
of the Company, is eligible to become a member of the Committee.
8.2 Term, Vacancies, Resignation and Removal. Each member of the
Committee shall serve until he resigns, dies, or is removed by the Directors. At
any time during his term of office, a member of the Committee may resign by
giving written notice to the Directors and the Committee, such resignation to
become effective upon the appointment of a substitute member or, if earlier, the
lapse of thirty days after such notice is given as herein provided. At any time
during his term of office, and for any reason, a member of the Committee may be
removed by the Directors with or without cause, and the Directors may in their
discretion fill any vacancy that may result therefrom. Any member of the
Committee who is an employee of the Company shall automatically cease to be a
member of the Committee as of the date he ceases to be employed by the Company
and its Affiliates.
8.3 Self-Interest of Members. No member of the Committee shall have any
right to vote or decide upon any matter relating solely to himself under the
Plan or to vote in any case in which his individual right to claim any benefit
under the Plan is particularly involved. In any case in which a Committee member
is so disqualified to act and the remaining members cannot agree, the Directors
shall appoint a temporary substitute member to exercise all the powers of the
disqualified member concerning the matter in which he is disqualified.
8.4 Committee Powers and Duties. The Committee shall supervise the
administration and enforcement of the Plan according to the terms and provisions
hereof and shall have all powers necessary to accomplish these purposes,
including, but not by way of limitation, the right, power, authority, and duty:
(a) To make rules, regulations, and bylaws for the administration of
the Plan that are not inconsistent with the terms and provisions hereof,
and to enforce the terms of the Plan and the rules and regulations
promulgated thereunder by the Committee;
(b) To construe in its discretion all terms, provisions, conditions,
and limitations of the Plan;
VIII-1
(c) To correct any defect or to supply any omission or to reconcile
any inconsistency that may appear in the Plan in such manner and to such
extent as it shall deem in its discretion expedient to effectuate the
purposes of the Plan;
(d) To employ and compensate such accountants, attorneys, investment
advisors, and other agents, employees, and independent contractors as the
Committee may deem necessary or advisable for the proper and efficient
administration of the Plan;
(e) To determine in its discretion all questions relating to
eligibility;
(f) To determine whether and when there has been a termination of a
Member's employment with the Company and its Affiliates, and the reason for
such termination;
(g) To make a determination in its discretion as to the right of any
person to a benefit under the Plan and to prescribe procedures to be
followed by distributees in obtaining benefits hereunder;
(h) To receive and review reports from the Trustee as to the financial
condition of the Trust Fund, including its receipts and disbursements; and
(i) To establish or designate Funds as investment options as provided
in Article IV.
8.5 Claims Review. In any case in which a claim for Plan benefits of a
Member or beneficiary is denied or modified, the Committee shall furnish written
notice to the claimant within ninety days (or within 180 days if additional
information requested by the Committee necessitates an extension of the
ninety-day period), which notice shall:
(a) State the specific reason or reasons for the denial or
modification;
(b) Provide specific reference to pertinent Plan provisions on which
the denial or modification is based;
(c) Provide a description of any additional material or information
necessary for the Member, his beneficiary, or representative to perfect the
claim and an explanation of why such material or information is necessary;
and
(d) Explain the Plan's claim review procedure as contained herein.
In the event a claim for Plan benefits is denied or modified, if the Member, his
beneficiary, or a representative of such Member or beneficiary desires to have
such denial or modification reviewed, he must, within sixty days following
receipt of the notice of such denial or modification, submit a written request
for review by the Committee of its initial
VIII-2
decision. In connection with such request, the Member, his beneficiary, or the
representative of such Member or beneficiary may review any pertinent documents
upon which such denial or modification was based and may submit issues and
comments in writing. Within sixty days following such request for review the
Committee shall, after providing a full and fair review, render its final
decision in writing to the Member, his beneficiary or the representative of such
Member or beneficiary stating specific reasons for such decision and making
specific references to pertinent Plan provisions upon which the decision is
based. If special circumstances require an extension of such sixty-day period,
the Committee's decision shall be rendered as soon as possible, but not later
than 120 days after receipt of the request for review. If an extension of time
for review is required, written notice of the extension shall be furnished to
the Member, beneficiary, or the representative of such Member or beneficiary
prior to the commencement of the extension period.
8.6 Company to Supply Information. The Company shall supply full and
timely information to the Committee, including, but not limited to, information
relating to each Member's Compensation, age, retirement, death, or other cause
of termination of employment and such other pertinent facts as the Committee may
require. The Company shall advise the Trustee of such of the foregoing facts as
are deemed necessary for the Trustee to carry out the Trustee's duties under the
Plan and the Trust Agreement. When making a determination in connection with the
Plan, the Committee shall be entitled to rely upon the aforesaid information
furnished by the Company.
8.7 Indemnity. To the extent permitted by applicable law, the Company
shall indemnity and save harmless the Directors and each member of the Committee
against any and all expenses, liabilities and claims (including legal fees
incurred to defend against such liabilities and claims) arising out of their
discharge in good faith of responsibilities under or incident to the Plan.
Expenses and liabilities arising out of willful misconduct shall not be covered
under this indemnity. This indemnity shall not preclude such further indemnities
as may be available under insurance purchased by the Company or provided by the
Company under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, as such indemnities are permitted under applicable law.
VIII-3
ARTICLE IX.
Administration of Funds
9.1 Payment of Expenses. All expenses incident to the administration of
the Plan and Trust, including but not limited to, legal, accounting, Trustee
fees, and expenses of the Committee, may be paid by the Company and, if not paid
by the Company, shall be paid by the Trustee from the Trust Fund, if any.
9.2 Trust Fund Property. All income, profits, recoveries, contributions,
forfeitures and any and all moneys, securities and properties of any kind at any
time received or held by the Trustee, if any, shall be held for investment
purposes as a commingled Trust Fund pursuant to the terms of the Trust Agreement
The Committee shall maintain one or more Accounts in the name of each Member,
but the maintenance of an Account designated as the Account of a Member shall
not mean that such Member shall have a greater or lesser interest than that due
him by operation of the Plan and shall not be considered as segregating any
funds or property from any other funds or property contained in the commingled
fund. No Member shall have any title to any specific asset in the Trust Fund, if
any.
IX-1
ARTICLE X.
Nature of the Plan
The Company intends and desires by the adoption of the Plan to recognize
the value to the Company of the past and present services of employees covered
by the Plan and to encourage and assure their continued service with the Company
by making more adequate provision for their future retirement security. The
establishment of the Plan is, in part, made necessary by certain benefit
limitations which are imposed on the Profit Sharing'401(k) Plan by the Code. The
Plan is intended to constitute an unfunded, unsecured plan of deferred
compensation for a select group of management or highly compensated employees of
the Company. Plan benefits herein provided are to be paid out of the Company's
general assets. Nevertheless, subject to the terms hereof and of the Trust
Agreement, the Company may transfer money or other property to the Trustee and
the Trustee shall pay Plan benefits to Members and their beneficiaries out of
the Trust Fund. To the extent the Company transfers assets to the Trustee
pursuant to the Trust Agreement, the Committee may, but need not, establish
procedures for the Trustee to invest the Trust Fund in accordance with each
Member's designated deemed investments pursuant to Article IV respecting the
portion of the Trust Fund assets equal to such Member's Account(s).
The Directors, in their sole discretion, may establish the Trust and
enter into the Trust Agreement The Company may adopt the Trust for purposes of
the Plan. In such event, the Company shall remain the owner of all assets in the
Trust Fund and the assets shall be subject to the claims of Company creditors if
the Company ever becomes insolvent For purposes hereof, the Company shall be
considered "insolvent" if (a) the Company is unable to pay its debts as they
become due, or (1,) the Company is subject to a pending proceeding as a debtor
under the United Sates Bankruptcy Code (or any successor federal statute). The
chief executive officer of the Company and its Board of Directors shall have the
duty to inform the Trustee in writing if the Company becomes insolvent Such
notice given under the preceding sentence by any party shall satisfy all of the
parties' duty to give notice. When so informed, the Trustee shall suspend
payments to the Members and hold the assets for the benefit of the Company's
general creditors. If the Trustee receives a written allegation that the Company
is insolvent, the Trustee shall suspend payments to the Members and hold the
Trust Fund for the benefit of the Company's general creditors, and shall
determine within the period specified in the Trust Agreement whether the Company
is insolvent If the Trustee determines that the Company is not insolvent, the
Trustee shall resume payments to the Members. No Member or beneficiary shall
have any preferred claim to, or any beneficial ownership interest in, any assets
of the Trust Fund.
X-1
ARTICLE XI.
Adopting Entities
It is contemplated that other corporations, associations, partnerships
or proprietorships may adopt this Plan and thereby become the Company. Any such
entity, whether or not presently existing, may become a party hereto by
appropriate action of its officers without the need for approval of its board of
directors or noncorporate counterpart or of the Directors; provided, however,
that such entity must be an Affiliate. The provisions of the Plan shall apply
separately and equally to each Company and its employees in the same manner as
is expressly provided for Winn-Dixie Stores, Inc. and its employees, except that
the power to appoint or otherwise affect the Committee or the Trustee and the
power to amend or terminate the Plan or amend the Trust Agreement shall be
exercised by the Directors alone. Transfer of employment among Companies and
Affiliates shall not be considered a termination of employment hereunder. Any
Company may, by appropriate action of its officers without the need for approval
of its board of directors or noncorporate counterpart or the Directors,
terminate its participation in the Plan. Moreover, the Directors may, in their
discretion, terminate a Company's Plan participation at any time.
XI-1
ARTICLE XII.
Miscellaneous
12.1 Not Contract or Employment. The adoption and maintenance of the
Plan shall not be deemed to be a contract between the Company and any person or
to be consideration for the employment of any person. Nothing herein contained
shall be deemed to give any person the right to be retained in the employ of the
Company or to restrict the right of the Company to discharge any person at any
time nor shall the Plan be deemed to give the Company the right to require any
person to remain in the employ of the Company or to restrict any person's right
to terminate his employment at any time.
12.2 Alienation of Interest Forbidden. The interest of a Member or his
beneficiary or beneficiaries hereunder may not be sold, transferred, assigned,
or encumbered in any manner, either voluntarily or involuntarily, and any
attempt so to anticipate, alienate, sell, transfer, assign, pledge, encumber, or
charge the same shall be null and void; neither shall the benefits hereunder be
liable for or subject to the debts, contracts, liabilities, engagements or torts
of any person to whom such benefits or funds are payable, nor shall they be an
asset in bankruptcy or subject to garnishment, attachment or other legal or
equitable proceedings.
12.3 Withholding. All Compensation deferrals and payments provided for
hereunder shall be subject to applicable withholding and other deductions as
shall be required of the Company under any applicable local, state or federal
law.
12.4 Amendment and Termination. The Directors may from time to time, in
their discretion, amend, in whole or in part, any or all of the provisions of
the Plan; provided, however, that no amendment may be made that would impair the
rights of a Member with respect to amounts already allocated to his Accounts.
The Directors may terminate the Plan at any time. In the event that the Plan is
terminated, the balance in a Member's Accounts shall be paid to such Member or
his designated beneficiary in the manner specified by the Committee, which may
include the payment of a single lump sum, cash payment in full satisfaction of
all of such Member's or beneficiary's benefits hereunder.
12.5 Severability. If any provision of this Plan shall be held illegal
or invalid for any reason, said illegality or invalidity shall not affect the
remaining provisions hereof; instead, each provision shall be fully severable
and the Plan shall be construed and enforced as if said illegal or invalid
provision had never been included herein.
12.6 Governing laws. MI provisions of the Plan shall be construed in
accordance with the laws of Florida except to the extent preempted by federal
law.
XII-1
EXECUTED this 15th day of June, 2000.
WINN-DIXIE STORES, INC.
By:_____________________________
Its President
Attest:___________________________
Its Asst. Secretary
(CORPORATE SEAL)
