SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q/A
QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarter ended June 15, 1996. Commission File Number 0-6080
FOOD LION, INC.
(exact name of registrant as specified in its charter)
NORTH CAROLINA 56-0660192
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
P.O. Box 1330, 2110 Executive Drive, Salisbury, NC 28145-1330
(Address of principal executive office) (Zip code)
Registrant's telephone number, including area code:
(704) 633-8250
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of
the Securities Exchange Act of 1934 during the preceding 12
months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes [ X ] No [ ]
Outstanding shares of common stock of the Registrant as of July 19, 1996.
Class A Common Stock 235,668,134
Class B Common Stock 233,252,364
Page 1 of 25
FOOD LION, INC.
FORM 10-Q/A
PART II.
Item 6. Exhibits and Reports on Form 8-K PAGE
(a). Exhibits
10c - Profit Sharing Restoration Plan 3 - 13
10d - Supplemental Executive Retirement Plan 14 - 25
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE
ACT OF 1934, THE REGISTRANT HAS DULY CAUSED THIS REPORT TO
BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED THEREUNTO DULY
AUTHORIZED.
FOOD LION, INC.
Registrant
DATE: August 13, 1996 BY: Dan A. Boone
Dan A. Boone
Vice President - Finance
Chief Financial Officer
Principal Financial Officer
(Duly Authorized Officer)
- 2 -
FOOD LION, INC.
PROFIT SHARING RESTORATION PLAN
(Effective May 4, 1995)
FOOD LION, INC.
PROFIT SHARING RESTORATION PLAN
(Effective May 4, 1995)
TABLE OF CONTENTS
ARTICLE PAGE
1 TITLE AND EFFECTIVE DATE 1
2 DEFINITIONS 1
3 PARTICIPATION 2
4 RESTORATION OF BENEFITS 3
5 PROFIT SHARING RESTORATION ACCOUNT 3
6 DISTRIBUTION OF BENEFITS 3
7 BENEFICIARY 4
8 ADMINISTRATION OF THE PLAN 4
9 CLAIMS PROCEDURE 5
10 NATURE OF COMPANY'S OBLIGATION 6
11 MISCELLANEOUS 6
FOOD LION, INC.
PROFIT SHARING RESTORATION PLAN
(Effective May 4, 1995)
PREAMBLE
The purpose of the Food Lion, Inc. Profit Sharing Restoration
Plan is to permit select members of management and highly
compensated employees of Food Lion, Inc. to defer current
compensation which cannot be contributed to the Profit Sharing
Retirement Plan of Food Lion, Inc. because of contribution and
funding limitations imposed by the Internal Revenue Code of 1986
on qualified plans.
ARTICLE 1
TITLE AND EFFECTIVE DATE
Section 1.01 Title. This Plan shall be known as the Food
Lion, Inc. Profit Sharing Restoration Plan.
Section 1.02 Effective Date. The effective date of this
Plan shall be May 4, 1995.
ARTICLE 2
DEFINITIONS
As used herein, the following words and phrases shall have
the meanings specified below unless a different meaning is
clearly required by the context:
"Beneficiary" shall mean the person or persons designated by
a Participant pursuant to Article 7 hereof as being entitled to
receive any benefits under this Plan.
"Board of Directors" shall mean the Board of Directors of
the Company.
"Code" shall mean the Internal Revenue Code of 1986.
"Committee" means the Senior Management Compensation
Committee of the Board of Directors.
"Company" shall mean Food Lion, Inc., a North Carolina
corporation, and its successors in interest.
"Compensation" shall mean, as to a particular Participant,
the Profit Sharing Compensation for benefit accrual purposes in
the Profit Sharing Plan without regard, however, for any dollar
limitation or cap that otherwise applies for purposes of the
Profit Sharing Plan.
"Contribution Percentage" means, for a particular year, that
percentage of the Profit Sharing Compensation of a Participant
(expressed as a percentage) which the Company contributes as a
profit sharing contribution to the Profit Sharing Plan.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Executive" shall mean any management employee or highly
compensated employee who participates in the Profit Sharing Plan,
a portion of whose compensation is not recognized for benefit
accrual purposes under the Profit Sharing Plan because of the
dollar limitation of Section 401(a)(17) of the Code or its
successor provision.
"Profit Sharing Compensation" shall mean, as to a particular
Participant, the annual compensation for benefit accrual purposes
in the Profit Sharing Plan.
"Profit Sharing Plan" shall mean the Profit Sharing
Retirement Plan of Food Lion, Inc. (As Amended and Restated
Effective as of December 19, 1993), as it shall be amended or
restated from time to time.
"Profit Sharing Restoration Account" is the account
described in Section 4.01 as a bookkeeping record for each
Participant in this Plan, which may, at the discretion of the
Committee, include one or more sub-accounts.
"Participant" means an Executive who is participating in the
Plan pursuant to Article 3 hereof.
"Plan" means the Food Lion, Inc. Profit Sharing Restoration
Plan, described in this instrument, as amended or restated from
time to time.
"Plan Year" means the Plan Year as defined in the Profit
Sharing Plan.
ARTICLE 3
PARTICIPATION
Section 3.01 Participation. The Participants shall consist
of only those Executives listed on Exhibit A attached hereto and
made a part hereof and such other Executives who are selected
from time to time by the Committee; provided, however, that all
such other Participants shall be either President or a
Vice-President of the Company.
ARTICLE 4
RESTORATION OF BENEFITS
Section 4.01 Restoration of Profit Sharing Benefit. For
each full or partial Plan Year in which the Plan is in effect the
Company shall credit to each Participant's Profit Sharing
Restoration Account an amount equal to the excess of (a) over (b)
where (a) and (b) are as follows:
(a) The product of the Contribution Percentage of the
Participant multiplied by the Compensation of the
Participant for the Plan Year of.
(b) The amount of the employer profit sharing
contribution actually allocated for such plan year
under the Profit Sharing Plan on behalf of the
Participant.
Such credited amount shall be credited as of the date the
contribution to the Profit Sharing Plan is actually made for the
Plan Year.
ARTICLE 5
PROFIT SHARING RESTORATION ACCOUNT
Section 5.01 Separate Accounts. Amounts credited to Profit
Sharing Restoration Accounts shall be credited in dollar amounts
to a separate Profit Sharing Restoration Account for each
Participant.
Section 5.02 Return on Account Balances. Beginning as of
the date as of which the first amount is credited under Section
4.01 hereof, each Participant's Profit Sharing Restoration
Account balance from time to time shall, until distributed, be
credited for each calendar quarter (or portion thereof) with an
amount of interest calculated at a variable rate equal to the 10-
year Constant Maturity Treasury yield in effect on the last day
of the previous calendar quarter, as published in the Federal
Reserve Statistical Release (or any successor publication).
ARTICLE 6
DISTRIBUTION OF BENEFITS
Section 6.01 Distribution of Account Balances. Except as
provided below, distribution of the vested value of a
Participant's Profit Sharing Restoration Account balance shall be
made on the first day of the month next succeeding the
termination of Participant's employment with the Company for any
reason.
Section 6.02 Nonforfeitable Right to Employee
Contributions. The Participant shall have at all times a 100%
nonforfeitable and vested right to the value of his Profit
Sharing Restoration Account, including the amounts credited to
such account under Section 5.02 hereof.
Section 6.03 Form of Distributions. All distributions of a
Participant's Profit Sharing Restoration Account balance shall be
made in cash only and in one lump sum.
Section 6.04 Loans and Withdrawals. No loans to
Participants or early withdrawals of amounts in a Participant's
account under the Plan shall be permitted.
ARTICLE 7
BENEFICIARY
Section 7.01 Beneficiaries. Except as otherwise provided
below, at any relevant time for purposes of this Plan a
Participant's Beneficiaries (and their respective shares and
priorities) shall be those Beneficiaries (and their respective
shares and priorities) that were most recently properly
designated by the Participant on a form prescribed by, and
submitted to, the Committee in accordance with procedures
established by the Committee.
Section 7.02 Proper Beneficiary. If the Committee is in
doubt as to the proper Beneficiary to receive payments hereunder,
the Company shall have the right to withhold such payments until
the matter is finally adjudicated. However, any payment made by
the Company, in good faith and in accordance with the Committee's
determination and this Plan, shall fully discharge the Company
from all further obligations with respect to that payment.
Section 7.03 Minor or Incompetent Beneficiary. In making
any payments to or for the benefit of any minor or an incompetent
Participant or Beneficiary, the Company, in its sole and absolute
discretion, may make a distribution to a legal or natural
guardian of a minor or a court appointed guardian or
representative of such incompetent. The receipt by a guardian,
relative or other person shall be a complete discharge to the
Company and Committee. Neither the Committee nor the Company
shall have any responsibility to see to the proper application of
any payments so made.
ARTICLE 8
ADMINISTRATION OF THE PLAN
Section 8.01 Finality of Determination. Subject to the
terms of the Plan, the Committee shall, from time to time,
establish rules, forms and procedures for the administration of
the Plan. Except as herein otherwise expressly provided, the
Committee shall have the exclusive right and discretion to
interpret the Plan and to decide any and all matters arising
thereunder or in connection with the administration of the Plan,
and it shall endeavor to act, whether by general rules or by
particular decisions, so as not to discriminate in favor of or
against any Participant. The decisions, actions and records of
the Committee shall be conclusive and binding upon the Company
and all persons having or claiming to have any right or interest
in or under the Plan.
Section 8.02 Certificates and Reports. The members of the
Committee and the officers and directors of the Company shall be
entitled to rely on all certificates and reports made by any duly
appointed accountants, and on all opinions given by any duly
appointed legal counsel, which legal counsel may be counsel for
the Company.
Section 8.03 Indemnification and Exculpation. The Company
shall indemnify and save harmless each member of the Committee
against any and all expenses and liabilities arising out of his
membership on the Committee. Expenses against which a member of
the Committee shall be indemnified hereunder shall include,
without limitation, the amount of any settlement or judgment
costs, counsel fees, and related charges reasonably incurred in
connection with a claim asserted, or a proceeding brought or
settlement thereof. The foregoing right of indemnification shall
be in addition to any other rights to which any such member of
the Committee may be entitled as a matter of law.
Section 8.04 Expenses. The expenses of administering the
Plan shall be borne by the Company.
Section 8.05 Cash-Out of Non-qualifying Participants.
Notwithstanding anything in this Plan to the contrary, the
Committee may remove from participation in the Plan any
Participant whose participation, according to any regulation
(whether proposed, temporary or final), ruling, court case or
administrative interpretation, causes or may cause the Plan, in
the sole discretion of the Committee, to fail to qualify as a
plan described in Section 201(2) of ERISA or any successor
statutory provision. Participants so removed may,
notwithstanding the Plan or any Compensation Deferral Agreement,
be distributed immediately in one lump sum the vested balance of
their Plan accounts.
ARTICLE 9
CLAIMS PROCEDURE
Section 9.01 Written Claim. Benefits and the value of a
Participant's Profit Sharing Restoration Account shall be paid in
accordance with the provisions of this Plan. The Participant, a
designated Beneficiary or any other person claiming through the
Participant may make a written request for benefits. This
written claim shall be mailed or delivered to the Committee.
Section 9.02 Denial of Claim. If the claim is denied, in
full or in part, the Committee shall provide a written notice
within ninety (90) days setting forth the specific reasons for
denial, and any additional material or information necessary to
perfect the claim, and an explanation of why such material or
information is necessary, and appropriate information and
explanation of the steps to be taken if a review of the denial is
desired.
Section 9.03 Review Procedure. If the claim is denied and
review is desired, the Participant (or Beneficiary) shall notify
the Committee in writing within sixty (60) days after receipt of
the written notice of denial. A claim shall be deemed denied if
the Committee does not take any action within the ninety (90) day
period described above. In requesting a review, the Participant
or his Beneficiary may request a review of the Plan document or
other pertinent documents with regard to the employee benefit
plan created under this Plan, may submit any written issues and
comments, may request an extension of time for such written
submission of issues or comments, and may request that a hearing
be held. However, the decision to hold a hearing shall be within
the sole discretion of the Committee.
Section 9.04 Committee Review. The decision on the review
of the denial claim shall be rendered by the Committee within
sixty (60) days after the receipt of the request for review (if a
hearing is not held) or within sixty (60) days after the hearing
if one is held. The decision shall be written and shall state
the specific reasons for the decision including reference to
specific provisions of this Plan on which the decision is based.
ARTICLE 10
NATURE OF COMPANY'S OBLIGATION
Section 10.01 Company's Payment Obligation. The Company's
obligations under this Plan shall be an unfunded and unsecured
promise to pay. The Company shall not be obligated under any
circumstances to fund its financial obligations under this Plan.
Section 10.02 Creditor Status. Any trust, policy or other
assets which the Company may acquire or set aside to help cover
its financial liabilities are and must remain general assets of
the Company subject to the claims of its creditors. Neither the
Company nor this Plan gives the Participant any beneficial
ownership interest in any asset of the Company. All rights of
ownership in any such assets are and remain in the Company, and
Participants and their Beneficiaries shall have only the rights
of general creditors of the Company.
Section 10.03 No Promise of Employment. Neither this Plan
nor any agreement or writing executed pursuant hereto, including,
but not limited to, any Compensation Deferral Agreement, shall be
construed to promise or guarantee future employment of any
person.
Section 10.04 No Guarantee of Tax Deferral. Neither this
Plan or any agreement or writing executed pursuant hereto shall
be construed as a representation, covenant or assurance that any
amounts in a Participant's Plan accounts shall not be subject to
taxation until such amounts are paid or distributed to such
Participant or any Beneficiaries.
ARTICLE 11
MISCELLANEOUS
Section 11.01 Written Notice. Any notice which shall be or
may be given under the Plan shall be in writing and shall be
mailed by United States mail, postage prepaid. If notice is to
be given to the Company, such notice shall be addressed to the
Committee of the Plan, at the address of the Company's principal
offices. If notice is to be given to a Participant or other
person, such notice shall be addressed to the then current
address shown for such Participant or other person in the
personnel records of the Company or, in the absence of any such
address in such records, the last known address for such person.
Section 11.02 Binding Effect. The Plan shall be binding
upon the Company, its assigns and any successor Company which
shall succeed to substantially all of its assets and business
through merger, acquisition or consolidation, and upon a
Participant, his Beneficiary, assigns, heirs, executors and
administrators.
Section 11.03 Amendment and Termination. The Company,
acting through the Board of Directors, retains the sole and
unilateral right to terminate, amend, modify, or supplement this
Plan, in whole or in part, at any time. This right includes the
right to make retroactive amendments. However, no Company action
pursuant to this right shall reduce the accounts of any
Participant or his Beneficiary nor reduce the vested portion of
an account.
Section 11.04 Nontransferability. Except insofar as
contrary to applicable law, no sale, transfer, alienation,
assignment, pledge, collateralization or attachment of any
benefits under this Plan shall be valid or recognized by the
Committee or the Company. Neither the Participant, his spouse,
or designated Beneficiary shall have any power to hypothecate,
mortgage, commute, modify, or otherwise encumber in advance any
of the benefits payable hereunder, nor shall any of said benefits
be subject to seizure for the payment of any debts, judgments,
alimony maintenance, owed by the Participant or his Beneficiary,
or be transferable by operation of law in the event of
bankruptcy, insolvency, or otherwise.
Section 11.05 Legal Fees. All reasonable legal fees
incurred by any Participant (or former Participant) or
Beneficiary to successfully enforce his valid rights under this
Plan shall be paid by the Company in addition to sums due under
this Plan.
Section 11.06 Withholding. The Company shall be entitled
to withhold from payments due under the Plan or from other
payments of Compensation to a Participant any and all taxes or
other amounts of any nature required by any government to be
withheld from compensation paid to employees.
Section 11.07 Acceleration of Payment. The Company
reserves the right to accelerate the payment of any benefits
payable under this Plan at any time without the consent of the
Participant, his estate, his Beneficiary or any other person
claiming through the Participant.
Section 11.08 Gender and Number. Wherever the context so
requires, masculine pronouns include the feminine and singular
words shall include the plural.
Section 11.09 Applicable Law. This Plan shall be governed
by the laws of the State of North Carolina.
IN WITNESS WHEREOF, Food Lion, Inc. has caused this
instrument to be executed by its duly authorized officer, to be
effective as of the Effective Date.
ATTEST: FOOD LION, INC.
By:
Dan Boone, Secretary Tom E. Smith, President
[SEAL]
EXHIBIT A
Initial Participants
FOOD LION, INC.
SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN
(Effective May 4, 1995)
TABLE OF CONTENTS
Page
ARTICLE I Purposes 1
ARTICLE II Definitions 1
ARTICLE III Eligibility and Participation 3
3.1 Selection of Participants 3
ARTICLE IV Retirement Income Benefits 3
4.1 Normal Retirement 3
4.2 Early Retirement 4
4.3 Ten-Year Certain Annuity 4
4.4 No Effect on Other Plans 4
ARTICLE V Death Benefits 4
5.1 Pre-Retirement Death Benefit 4
5.2 No Other Death Benefits 4
ARTICLE VI Administration of the Plan 5
6.1 Plan Administrator 5
6.2 Finality of Determination 5
6.3 Certificates and Reports 5
6.4 Indemnification and Exculpation 5
6.5 Expenses 5
ARTICLE VII Claims Procedure 5
7.1 Written Claim 5
7.2 Denial of Claim 5
7.3 Review Procedure 6
7.4 Committee Review 6
ARTICLE VIII Miscellaneous 6
8.1 Alienation of Benefits 6
8.2 Amendment; Modification 6
8.3 Binding Effect 6
8.4 Written Notice 7
8.5 Indirect Payment 7
8.6 Withholding 7
8.7 Right of Employment 7
8.8 Creditor Status 7
8.9 No Guarantee of Tax Deferral 7
8.10 No Effect on Other Plans 7
8.11 Gender and Number 7
8.12 Governing Law; Severability 8
FOOD LION, INC.
SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN
(Effective May 4, 1995)
I Purposes
The purpose of this Plan is to supplement the retirement
income of certain key employees of the Company. Toward that end,
the Plan provides competitive retirement and death benefits.
II Definitions
The following terms shall have the indicated meanings when
used in this Plan:
"Actuarial Equivalent" shall mean equality in value of the
aggregate amounts expected to be received under different forms
of payment based upon the 1983 Group Annuity Mortality Table for
males, for males and females and interest at the rate of the
10-year Constant Maturity Treasury yield for the last month of
the preceding calendar quarter as published in the Federal
Reserve Statistical Release (or any successor publication).
"Administrator" or "Plan Administrator" shall mean the
Committee.
"Benefit Offsets" shall mean, as to a particular
Participant, the sum of all of the following: (i) the Profit
Sharing Annuity; (ii) the Profit Sharing Restoration Annuity;
(iii) the Deferred Compensation Amount; and (iv) the Primary
Social Security Benefit.
"Board of Directors" or "Board" shall mean the Board of
Directors of the Company.
"Committee" shall mean the Senior Management Compensation
Committee of the Board of Directors, or its successor.
"Company" shall mean Food Lion, Inc., a corporation
organized under the laws of the State of North Carolina and any
successor company to the business thereof under law, equity or
otherwise.
"Deferred Compensation Amount" shall mean, if applicable as
to a particular Participant, an annual retirement benefit payable
monthly as a single life annuity under that Deferred Compensation
Agreement by and between the Participant and the Company.
"Deferred Retirement Date" shall mean the first day of the
month coincident with or next following the date on which a
Participant retires after the Normal Retirement Date.
"Early Retirement Benefit" shall mean the benefit payable
to a Participant under Section 4.2 hereof upon a Participant's
approved early retirement.
"Early Retirement Date" shall mean the first day of the
month coincident with or next following the date of early
retirement after the Participant attains age 55 and has completed
10 Years of Service.
"Effective Date" shall mean May 4, 1995.
"Final Average Compensation" shall mean the annual average
of the Participant's annual cash compensation (to include base
salary and incentive bonus, but excluding any annual Christmas
bonus and any benefits/payments from other Company provided
plans) paid to the Participant for the five (5) completed
calendar years that immediately precede the year in which payment
of benefits under the Plan is to begin.
"Normal Retirement Age" shall mean age 65.
"Normal Retirement Benefit" shall mean the benefit payable
to a Participant under Section 4.1 upon a Participant's
retirement on or after his Normal Retirement Date.
"Normal Retirement Date" shall mean the first day of the
calendar month coincident with or next following the
Participant's attainment of age 65.
"Participant" shall mean a key employee of the Company who
is designated or selected as provided in Article III.
"Plan" shall mean this Food Lion, Inc. Supplemental
Executive Retirement Plan.
"Profit Sharing Annuity" shall mean, as to a particular
Participant, an annual retirement benefit payable monthly as a
single life annuity that is the Actuarial Equivalent of
Participant's accrued benefit (determined by including, without
double counting, the amount due under any outstanding plan loans
to such Participant) in the Profit Sharing Plan, such accrued
benefit to be determined as of the earlier of (i) the most recent
valuation date for the Profit Sharing Plan prior to the
commencement of the payment of benefits from the Plan and
(ii) the date on which the Participant has received a retirement
distribution of his benefits under the Profit Sharing Plan.
"Profit Sharing Plan" shall mean the Profit Sharing
Retirement Plan of Food Lion, Inc. (As Amended and Restated
Effective as of December 19, 1993), as it may be amended or
restated from time to time.
"Profit Sharing Restoration Annuity" shall mean, as to a
particular Participant, an annual retirement benefit payable
monthly as a single life annuity that is the Actuarial Equivalent
of Participant's accrued benefit in the Profit Sharing
Restoration Plan, such accrued benefit to be determined as of the
earlier of (i) the most recent valuation date for the Profit
Sharing Plan prior to the commencement of the payment of benefits
from this Plan and (ii) the date on which the Participant has
received a retirement distribution of his benefits under the
Profit Sharing Restoration Plan.
"Profit Sharing Restoration Plan" shall mean the Food Lion,
Inc. Profit Sharing Restoration Plan, effective May 4, 1995, as
it may be amended or restated from time to time.
"Primary Social Security Benefit" shall mean, as to a
particular Participant, one hundred percent (100%) of the
Participant's Primary Insurance Amount Social Security Benefit
that would be payable at age 65, expressed as an annual benefit.
"Year of Service" shall mean a full twelve consecutive
month period of employment with the Company measured from the
month in which a Participant is first employed with the Company
or one of its affiliates.
III Eligibility and Participation
.1 Selection of Participants. Participants are the President
and those Vice-Presidents of the Company listed on Exhibit A
attached hereto and made a part hereof and such other management
employees who are selected from time to time by the Committee;
provided, however, that all such other Participants shall be
either President or a Vice-President of the Company.
IV Retirement Income Benefits
.1 Normal Retirement
(a) If a Participant terminates employment for any reason on or
after his Normal Retirement Date (including retirement on a
Deferred Retirement Date) with 20 or more Years of Service, he
shall be entitled to an annual retirement benefit payable as a
single life annuity that is equal to the excess of (i) 60% (as
reduced for service less than 20 years as provided below) of the
Participant's Final Average Compensation, over (ii) the Benefit
Offsets.
(b) For Participants who retire on or after the Normal
Retirement Date with less than 20 Years of Service, the benefit
shall be reduced by multiplying the 60% factor in Section 4.1(a)
by a fraction the numerator of which is the number of
Participant's Years of Service at retirement (not exceeding 20
years) and the denominator of which is 20.
(c) Except as otherwise provided in Section 4.3 below, the
benefit payable under this Section 4.1 shall be paid in monthly
installments for the Participant's life, commencing on the Normal
Retirement Date or Deferred Retirement Date, whichever is
applicable.
.2 Early Retirement
(a) Upon receipt of approval by the Committee, a Participant
may retire under this Plan following the attainment of age 55 and
the completion of ten (10) Years of Service. If a Participant
receives approval to retire under this Plan before his Normal
Retirement Date, the Participant's retirement benefit shall be
determined in the same manner as the Normal Retirement Benefit
under Section 4.1; provided, however, that the 60 percentage
point factor in Section 4.1 shall be reduced by 0.25 percentage
points for each full month by which the Participant's Early
Retirement Date precedes his Normal Retirement Date; and
provided, further, that such benefit shall be based on the
Participant's actual Years of Service and Final Average
Compensation determined as of the Participant's Early Retirement
Date and shall be calculated by deleting the Deferred
Compensation Amount from the Benefit Offsets.
(b) The benefit payable under this Section 4.2 shall be paid in
the same manner set forth in Section 4.1(c), commencing on the
Participant's Early Retirement Date.
.3 Ten-Year Certain Annuity. A Participant who is legally
married as of the retirement date shall receive his Plan
retirement benefit in the form of a ten-year certain single life
annuity, payable monthly, which is determined as the Actuarial
Equivalent of the single life annuity provided for at
Sections 4.1 and 4.2 hereof.
.4 No Effect on Other Plans. Benefits payable under this
Article IV do not affect an eligible Participant's right to
receive benefits under the Profit Sharing Plan or any other
employee benefit plan or deferred compensation arrangement
offered by the Company.
V Death Benefits
.1 Pre-Retirement Death Benefit. If a Participant dies after
attaining age 55 and ten (10) Years of Service, but before
retiring pursuant to Article IV hereof, the Participant's
surviving spouse, if any, shall be entitled to a benefit payable
in 120 equal monthly installments, commencing on the first day of
the month following the Participant's death. Such benefit shall
be the amount determined as if the Participant had retired under
Section 4.2(a) on the day preceding his death.
.2 No Other Death Benefits. Apart from the death benefit
provided for at Section 5.1 above, no other death benefit shall
be payable from the Plan; and no individual other than the
Participant's surviving spouse, if any, shall be entitled to
receive a death benefit hereunder.
VI Administration of the Plan
.1 Plan Administrator. The Committee shall act as the Plan
Administrator of the Plan.
.2 Finality of Determination. Subject to the terms of the
Plan, the Committee shall, from time to time, establish rules,
forms and procedures for the administration of the Plan. Except
as herein otherwise expressly provided, the Committee shall have
the exclusive right and discretion to interpret the Plan and to
decide any and all matters arising thereunder or in connection
with the administration of the Plan, and it shall endeavor to
act, whether by general rules or by particular decisions, so as
not to discriminate in favor of or against any Participant. The
decisions, actions and records of the Committee shall be
conclusive and binding upon the Company and all persons having or
claiming to have any right or interest in or under the Plan.
.3 Certificates and Reports. The members of the Committee and
the officers and directors of the Company shall be entitled to
rely on all certificates and reports made by any duly appointed
accountants, and on all opinions given by any duly appointed
legal counsel, which legal counsel may be counsel for the
Company.
.4 Indemnification and Exculpation. The Company shall
indemnify and save harmless each member of the Committee against
any and all expenses and liabilities arising out of his
membership on the Committee. Expenses against which a member of
the Committee shall be indemnified hereunder shall include,
without limitation, the amount of any settlement or judgment
costs, counsel fees, and related charges reasonably incurred in
connection with a claim asserted, or a proceeding brought or
settlement thereof. The foregoing right of indemnification shall
be in addition to any other rights to which any such member of
the Committee may be entitled as a matter of law.
.5 Expenses. The expenses of administering the Plan shall be
borne by the Company.
VII Claims Procedure
.1 Written Claim. Benefits shall be paid in accordance with
the provisions of this Plan. The Participant or a surviving
spouse may make a written request for benefits. This written
claim shall be mailed or delivered to the Committee.
.2 Denial of Claim. If the claim is denied, in full or in
part, the Committee shall provide a written notice within ninety
(90) days setting forth the specific reasons for denial, and any
additional material or information necessary to perfect the
claim, and an explanation of why such material or information is
necessary, and appropriate information and explanation of the
steps to be taken if a review of the denial is desired.
.3 Review Procedure. If the claim is denied and review is
desired, the Participant (or spouse) shall notify the Committee
in writing within sixty (60) days after receipt of the written
notice of denial. A claim shall be deemed denied if the
Committee does not take any action within the ninety (90) day
period described above. In requesting a review, the Participant
(or spouse) may request a review of the Plan document or other
pertinent documents with regard to the employee benefit plan
created under this Plan, may submit any written issues and
comments, may request an extension of time for such written
submission of issues or comments, and may request that a hearing
be held. However, the decision to hold a hearing shall be within
the sole discretion of the Committee.
.4 Committee Review. The decision on the review of the claim
denial shall be rendered by the Committee within sixty (60) days
after the receipt of the request for review (if a hearing is not
held) or within sixty (60) days after the hearing if one is held.
The decision shall be written and shall state the specific
reasons for the decision including reference to specific
provisions of this Plan on which the decision is based.
VIII Miscellaneous
.1 Alienation of Benefits. No benefit payable under this
Plan, whether or not in payment status, shall be subject in any
manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or charge, and any attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber or to charge
the same shall be void. No such benefit or interest shall be
liable for or subject to the debts, contracts, liabilities or
torts of the Participant or the Participant's spouse entitled to
any benefit or having any interest herein. If any Participant,
former Participant, or spouse becomes bankrupt or insolvent or
attempts to anticipate, alienate, sell, transfer, assign, pledge,
encumber or charge any benefit under this Plan, the Committee
may, in its discretion and if permitted by applicable law, direct
that any benefit to which such Participant, former Participant,
or spouse is entitled shall be terminated and that all future
payments to which such person would otherwise be entitled be held
and applied for the benefit of such person, such person's
children or other dependents, or any of them, in such manner and
in such proportion as the Committee may deem proper.
.2 Amendment; Modification. The Company, acting through its
Board of Directors, shall have the power, in its unlimited
discretion, to amend or terminate the Plan at any time. However,
in no event shall any such amendment or termination relieve the
Company of its obligations to provide benefits as provided under
the Plan as of the date of such amendment or termination, nor
shall any such amendment in any way reduce such benefits for
persons who are currently entitled to the receipt of or are
receiving benefits.
.3 Binding Effect. The Plan shall be binding upon the
Company, its assigns, and any successor company which shall
succeed to substantially all of its assets and business through
merger, acquisition or consolidation, and upon a Participant, his
assigns, heirs, executors and administrators.
.4 Written Notice. Any notice which shall be or may be given
under the Plan shall be in writing and shall be mailed by United
States mail, postage prepaid. If notice is to be given to the
Company, such notice shall be addressed to the Committee of the
Plan, at the address of the Company's principal offices. If
notice is to be given to a Participant, such notice shall be
addressed to the then current address shown for such Participant
in the personnel records of the Company or, in the absence of any
such address in such records, the last known address for such
person.
.5 Indirect Payment. In the event that the Committee finds
that a Participant, former Participant or spouse is unable to
care for his or her affairs because of illness or accident, any
benefits payable hereunder may, unless claim has been made
therefor by a duly appointed guardian, conservator or other legal
representative, be paid to a spouse, child, parent, or other
blood relative of such person, or to anyone found by the
Committee (in its sole discretion and judgment) to have incurred
expense for the support and maintenance of such Participant,
former Participant or spouse and any such payment made shall be a
complete discharge of all liability of the Company under the
Plan, to the extent of such payment.
.6 Withholding. The Company shall have the right to withhold
from the payment of any benefits or payments payable under this
Plan an amount equal to the federal, state and local income taxes
and all other sums required to be withheld with respect to such
benefit or payment.
.7 Right of Employment. Nothing in this Plan shall be
construed as imposing any obligation on the Company or giving any
Participant the right to be retained in the employ of the Company
or the right to any payment or additional compensation whatsoever
except to the extent of the benefits provided for in the Plan.
.8 Creditor Status. It is expressly intended and provided
that the obligations imposed upon the Company by this Plan shall
be general corporate obligations of the Company and that any
trust which is established, insurance contracts purchased or
other assets accumulated in order to assist the Company in
meeting its obligations hereunder shall remain the general
corporate assets of the Company which are subject to the claims
of the general creditors of the Company.
.9 No Guarantee of Tax Deferral. Nothing in this Plan shall
be construed as a warranty, representation or covenant to a
Participant or spouse that any benefits payable hereunder will be
nontaxable under federal or state law prior to payment of such
benefits.
.10 No Effect on Other Plans. Benefits payable under this Plan
do not affect the right of an eligible Participant or his or her
spouse to receive benefits under the Profit Sharing Plan or any
other employee benefit plan or deferred compensation arrangement
offered by the Company.
.11 Gender and Number. As the context requires herein (i) the
masculine shall include the feminine and vice versa and (ii) the
singular shall include the plural and vice versa.
.12 Governing Law; Severability. The provisions of the Plan
shall be construed, administered and enforced according to the
laws of the State of North Carolina. If any part of this Plan
shall be held by the courts to be unlawful or unenforceable in
whole or in part, such invalidity shall not affect the validity
or enforceability of the remaining provisions of this Plan.
IN WITNESS WHEREOF, and as evidence of the adoption of this
Plan by the Board of Directors of the Company on May 4, 1995, the
Company has caused these presents to be executed by its duly
authorized officer on its behalf, to be effective as of the
Effective Date.
ATTEST: FOOD LION, INC.
By:
Dan Boone, Secretary Tom E. Smith, President
[SEAL]
Exhibit A
Initial Participants
