<PAGE> 1
As Filed With the Securities and Exchange Commission
on September 25, 1998
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
- --------------------------------------------------------------------------------
MARSH SUPERMARKETS, INC.
(Exact name of registrant as specified in its charter)
INDIANA 35-0918179
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
9800 CROSSPOINT BOULEVARD
INDIANAPOLIS, INDIANA 46256-3350
(Address of Principal Executive Offices) (Zip Code)
MARSH DEFERRED COMPENSATION PLAN
(Full title of the plan)
P. LAWRENCE BUTT
SENIOR VICE PRESIDENT, COUNSEL AND SECRETARY
MARSH SUPERMARKETS, INC.
9800 CROSSPOINT BOULEVARD
INDIANAPOLIS, INDIANA 46256-3350
(317) 594-2100
(Name, Address, including Zip Code, and Telephone Number,
including Area Code, of Registrant's Agent for Service)
WITH COPIES TO:
J. PAGE DAVIDSON
BASS, BERRY & SIMS PLC
2700 FIRST AMERICAN CENTER
NASHVILLE, TN 37238
(615) 742-6200
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=======================================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered(1) registered obligation price(2) registration fee
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
MDCP Obligations $10,000,000 100% $10,000,000 $2,950.00
=======================================================================================================================
</TABLE>
(1) The obligations (the "MDCP Obligations") being registered hereunder
are unsecured obligations of Marsh Supermarkets, Inc. (the "Registrant") to pay
deferred compensation in the future in accordance with the terms of the Marsh
Deferred Compensation Plan (the "Plan").
(2) Estimated solely for the purpose of determining the registration
fee.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act") are hereby incorporated by reference as of their respective
dates:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended March 28, 1998; and
(2) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 20, 1998.
All documents filed by the Registrant pursuant to Section 13(a), 13(c),
14, or 15(d) of the Exchange Act after the date hereof and prior to the filing
of a post-effective amendment to this Registration Statement which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents. Any statements contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or replaced for
purposes hereof to the extent that a statement contained herein (or in any other
subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein) modifies or replaces such statement. Any
statement so modified or replaced shall not be deemed, except as so modified or
replaced, to constitute a part hereof.
Item 4. Description of Securities.
The Plan has been approved by the Board of Directors of the Registrant
effective on and after January 1, 1997. $10,000,000 of MDCP Obligations are
being registered under this Registration Statement to be offered to certain
eligible employees of the Registrant pursuant to the Marsh Deferred Compensation
Plan (the "Plan").
The MDCP Obligations are general unsecured obligations of the
Registrant to pay deferred compensation in the future in accordance with the
terms of the Plan from the general assets of the Registrant, and rank pari passu
with other unsecured and unsubordinated indebtedness of the Registrant from time
to time outstanding.
The amount of compensation deferred by each participant is determined
in accordance with each participant's deferral election agreement under the
Plan.
A participant's MDCP Obligations cannot be alienated, sold,
transferred, assigned, pledged, attached, garnished, or otherwise encumbered,
and pass only to a survivor beneficiary designated under the Plan, or by written
will or the laws of descent and distribution.
The MDCP Obligations are not subject to redemption, in whole or in
part, prior to the termination, retirement or death of the participant. However,
the Registrant reserves the right to amend or terminate the Plan at any time,
except that no such amendment or termination shall adversely affect a
participant's right to MDCP Obligations in the amount of the participant's
accounts as of the date of such amendment or termination.
Item 5. Interests of Named Experts and Counsel.
P. Lawrence Butt, Senior Vice President, Counsel and Secretary of the
Registrant, who has passed upon the legality of the MDCP Obligations offered
hereby, is eligible for participation in the Plan.
II-1
<PAGE> 3
Item 6. Indemnification of Directors and Officers.
Chapter 37 of the Indiana Business Corporation Law (the "IBCL")
provides that a corporation may indemnify any of its directors and officers
against liability incurred in connection with a proceeding if (i) such person
acted in good faith; (ii) in the case of conduct in such person's official
capacity with the corporation, he reasonably believed such conduct was in the
corporation's best interests; (iii) in all other cases, he reasonably believed
that his conduct was at least not opposed to the best interests of the
corporation; and (iv) in connection with any criminal proceeding, such person
either had reasonable cause to believe his conduct was lawful or had no
reasonable cause to believe his conduct was unlawful.
The IBCL also requires a corporation to indemnify a director or an
officer who is solely successful on the merits or otherwise in the defense of
any proceeding to which the director or officer was a party because the director
or officer is or was a director or officer of the corporation against reasonable
expenses incurred by the director or officer in connection with the proceeding.
In addition, a corporation may pay for or reimburse the reasonable
expenses incurred by a director or officer who is a party to a proceeding in
advance of the final disposition of the proceeding if: (1) the director or
officer furnishes the corporation a written affirmation of his or her good-faith
belief that he or she has met the standard of conduct required for permissive
indemnification; (2) the director or officer furnishes the corporation a written
undertaking executed personally or on the director or officer's behalf to repay
the advance if it is ultimately determined that the director or officer did not
meet the required standard of conduct; and (3) a determination is made that the
facts then known to those making the determination would not preclude
indemnification under the IBCL.
Article XII of the Company's Restated Articles of Incorporation
provides that the Company must indemnify any person made a party to any action,
suit or proceeding by reason of the fact that such person, such person's
testator or intestate, is or was a Director, Officer or employee of the Company,
or of any corporation which such person served as such at the request of the
Company against the reasonable expenses, including attorneys' fees actually and
necessarily incurred by such person in connection with the defense of such
action, suit or proceedings, or in connection with any appeal therein except in
relation to matters as to which it shall be adjudged in such action, suit or
proceeding that such Officer, Director or employee is liable for negligence or
misconduct in the performance of his or her duties. The Company may also
reimburse to any such Director, Officer or employee the reasonable costs of
settlement of any such action, suit or proceeding, if it shall be found by a
majority of a committee composed of the Directors not involved in the matter in
controversy (whether or not a quorum) that it was to the interests of the
Corporation that such settlement be made and that such Director, Officer or
employee was not guilty of negligence or misconduct. Such rights of
indemnification and reimbursement shall not be deemed exclusive of any other
rights to which such Director, Officer or employee may be entitled apart from
the provisions of this Article.
The Company has entered into Indemnification Agreements with its
directors and officers which may provide for indemnification against other
liabilities, including liabilities under the Act, other than as provided by the
IBCL and the Restated Articles of Incorporation. In addition, the Company
maintains directors' and officers' liability insurance which may cover
liabilities under the Securities Act.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- -----------
<S> <C>
4.1 Marsh Deferred Compensation Plan
4.2 Agreement of the Company to furnish a copy of any agreement relating to certain long-
term debt and leases to the Securities and Exchange Commission upon its request
(incorporated herein by reference to Form 10-K for the year ended March 27, 1987)
4.3 Note Agreement, dated as of May 1, 1988, for $25,000,000 9.48% Senior Notes due
June 30, 2003 (incorporated herein by reference to Form 10-Q for the quarter ended June
25, 1988)
4.4 Note Agreement, dated as of October 15, 1992, for $35,000,000 8.54% Senior Notes,
Series A, due December 31, 2007 and $15,000,000 8.13% Senior Notes, Series B, due
December 31, 2004 (incorporated herein by reference to Registration Statement on Form
S-2 (File No. 33-56738))
4.5 Indenture dated as of February 15, 1993, between Marsh Supermarkets, Inc. and Society
National Bank, as Trustee, including form of Indenture (incorporated herein by reference
to Registration Statement on Form S-2 (File No. 33-56738))
4.6 Amendment to Note Agreements and Assumption Agreement, dated March 29, 1997, for
$35,000,000 8.54% Senior Notes, Series A, due December 31, 2007, and $15,000,000
8.13% Senior Notes, Series B, due December 31, 2004 (incorporated herein by reference
to Form 10-K for the year ended March 29, 1997)
4.7 Amendment to Note Agreements and Assumption Agreement, dated March 29, 1997, for
$25,000,000 9.48% Senior Notes, due June 30, 2002 (incorporated herein by reference to
Form 10-K for the year ended March 29, 1997)
</TABLE>
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<PAGE> 4
<TABLE>
<S> <C>
4.8 Indenture, dated August 5, 1997, between Marsh Supermarkets, Inc. and certain of its
subsidiaries and State Street Bank and Trust Company as trustee, for $150,000,000
8.7/8% Senior Subordinated Notes, due 2007 (incorporated herein by reference to
Registration Statement on Form S-4 (File No. 333-34855))
4.9 First Supplemental Indenture between Marsh Supermarkets, Inc. and certain of its
subordinates and State Street Bank and Trust Company, as trustee, dated December 31,
1997 (incorporated herein by reference to Form 10-K for the year ended March 29,
1997)
5 Opinion of P. Lawrence Butt
23.1 Consent of Ernst & Young LLP
23.2 Consent of P. Lawrence Butt (included in Exhibit 5)
24 Power of Attorney (included in signature page of Registration Statement)
</TABLE>
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement to include
any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material
change to such information in the Registration Statement;
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act and each filing of the Plan's annual report pursuant to section
15(d) of the Exchange Act that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, on the 25th day of September, 1998.
MARSH SUPERMARKETS, INC.
By: /s/ Don E. Marsh
-------------------------------------------------
Don E. Marsh
Chairman of the Board of Directors, President and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears
below hereby constitutes and appoints Douglas W. Dougherty and P. Lawrence Butt,
and each of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place, and
stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in their capacities and
on the 25th day of September, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Don E. Marsh Chairman of the Board of
- ------------------------------------ Directors, President and Chief
Don E. Marsh Executive Officer
/s/ Douglas W. Dougherty Senior Vice President,
- ------------------------------------ Chief Financial Officer and Treasurer
Douglas W. Dougherty
/s/ Mark A. Varner Corporate Controller
- ------------------------------------
Mark A. Varner
/s/ C. Alan Marsh Vice Chairman of the Board of Directors,
- ------------------------------------ Senior Vice President - Corporate
C. Alan Marsh Development
Director
- ------------------------------------
Garnet R. Marsh
/s/ William L. Marsh Senior Vice President - Property
- ------------------------------------ Management and Director
William L. Marsh
/s/ Catherine A. Langham Director
- ------------------------------------
Catherine A. Langham
</TABLE>
<PAGE> 6
<TABLE>
<S> <C>
/s/ Charles R. Clark Director
- --------------------------------------
Charles R. Clark
Director
- --------------------------------------
Stephen M. Huse
Director
- --------------------------------------
James K. Risk III
/s/ K. Clay Smith Director
- --------------------------------------
K. Clay Smith
Director
- --------------------------------------
J. Michael Blakley
</TABLE>
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
4.1 Marsh Deferred Compensation Plan
4.2 Agreement of the Company to furnish a copy of any agreement relating to certain long-
term debt and leases to the Securities and Exchange Commission upon its request
(incorporated herein by reference to Form 10-K for the year ended March 27, 1987)
4.3 Note Agreement, dated as of May 1, 1988, for $25,000,000 9.48% Senior Notes due
June 30, 2003 (incorporated herein by reference to Form 10-Q for the quarter ended June
25, 1988)
4.4 Note Agreement, dated as of October 15, 1992, for $35,000,000 8.54% Senior Notes,
Series A, due December 31, 2007 and $15,000,000 8.13% Senior Notes, Series B, due
December 31, 2004 (incorporated herein by reference to Registration Statement on Form
S-2 (File No. 33-56738))
4.5 Indenture dated as of February 15, 1993, between Marsh Supermarkets, Inc. and Society
National Bank, as Trustee, including form of Indenture (incorporated herein by reference
to Registration Statement on Form S-2 (File No. 33-56738))
4.6 Amendment to Note Agreements and Assumption Agreement, dated March 29, 1997, for $35,000,000
8.54% Senior Notes, Series A, due December 31, 2007, and $15,000,000 8.13% Senior Notes, Series B, due
December 31, 2004 (incorporated herein by reference to Form 10-K for the year ended March 29, 1997)
4.7 Amendment to Note Agreements and Assumption Agreement, dated March 29, 1997, for
$25,000,000 9.48% Senior Notes, due June 30, 2002 (incorporated herein by reference to
Form 10-K for the year ended March 29, 1997)
4.8 Indenture, dated August 5, 1997, between Marsh Supermarkets, Inc. and certain of its subsidiaries
and State Street Bank and Trust Company as trustee, for $150,000,000 8.7/8% Senior Subordinated Notes,
due 2007 (incorporated herein by reference to Registration Statement on Form S-4 (File No.
333-34855))
4.9 First Supplemental Indenture between Marsh Supermarkets, Inc. and certain of its
subordinates and State Street Bank and Trust Company, as trustee, dated December 31,
1997 (incorporated herein by reference to Form 10-K for the year ended March 29, 1997)
5 Opinion of P. Lawrence Butt
23.1 Consent of Ernst & Young LLP
23.2 Consent of P. Lawrence Butt (included in Exhibit 5)
24 Power of Attorney (included on signature page of Registration Statement)
</TABLE>
<PAGE> 1
EXHIBIT 4.1
MARSH DEFERRED COMPENSATION PLAN
<PAGE> 2
MARSH DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I
PURPOSE
1.1 Purpose..................................................................................1
ARTICLE II
DEFINITIONS
2.1 Definitions..............................................................................2
(a) Administrator...................................................................2
(b) Adopting Company................................................................2
(c) Aggregate Deferral Dollars......................................................2
(d) Aggregate Deferral Percentage...................................................2
(e) Beneficiary.....................................................................3
(f) Board of Directors..............................................................3
(g) Cause...........................................................................3
(h) Change in Control...............................................................3
(i) Code............................................................................5
(j) Company.........................................................................5
(k) Company Stock...................................................................5
(l) Compensation....................................................................5
(m) Deferred Compensation Account...................................................5
(n) Disability......................................................................5
(o) Early Retirement................................................................5
(p) Effective Date..................................................................5
(q) Elective Deferrals..............................................................6
(r) Employee........................................................................6
(s) Employer........................................................................6
(t) Employer Matching Amount........................................................6
(u) Employer Matching Contributions.................................................6
(v) Fair Market Value...............................................................6
(w) 401(k) Dollars..................................................................6
(x) 401(k) Plan.....................................................................6
(y) Grandfathered Benefit Account...................................................6
(z) Grandfathered Benefit Amount....................................................6
(aa) Grandfathered Contributions.....................................................6
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
(bb) Highly Compensated Employee.....................................................7
(cc) Matching Account................................................................7
(dd) Matching Contribution Account...................................................7
(ee) MDCP Supplemental Trust.........................................................7
(ff) Normal Retirement...............................................................7
(gg) Participant.....................................................................7
(hh) Pension Plan....................................................................7
(ii) Plan............................................................................7
(jj) Plan Year.......................................................................7
(kk) Potential Change in Control.....................................................7
(ll) Profit Based Matching Account...................................................8
(mm) Profit Based Matching Amount....................................................9
(nn) Profit Based Matching Contributions.............................................9
(oo) Retirement Committee............................................................9
(pp) Salary Deferral Agreement.......................................................9
(qq) Salary Reduction Contributions..................................................9
(rr) Separation from Service.........................................................9
(ss) SRP.............................................................................9
(tt) Year of Service.................................................................9
ARTICLE III
PARTICIPATION
3.1 Participation...........................................................................10
ARTICLE IV
ACCOUNTS; VESTING
4.1 Establishment of Accounts...............................................................11
4.2 Deferred Compensation Account...........................................................11
4.3 Matching Account........................................................................11
4.4 Grandfathered Benefit Account...........................................................12
4.5 Profit Based Matching Account...........................................................13
4.6 Earnings Credited to Deferred Compensation Account......................................13
4.7 Earnings Credited to Matching Account, Grandfathered
Benefit Account and Profit Based Matching Account.......................................14
4.8 Vesting.................................................................................14
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE V
PAYMENT OF BENEFITS
5.1 Eligibility for Payment.................................................................16
5.2 Separation from Service.................................................................16
5.3 Time of Payment.........................................................................16
5.4 Form of Payment.........................................................................17
5.5 Medium of Payment.......................................................................18
5.6 Hardship Withdrawal.....................................................................18
ARTICLE VI
BENEFICIARIES
6.1 Designation of Beneficiary..............................................................20
6.2 Failure to Designate a Beneficiary......................................................20
ARTICLE VII
PLAN ADMINISTRATION AND CLAIMS REVIEW
7.1 Plan Administrator......................................................................21
7.2 Appointment of Administrator............................................................22
7.3 Claims Procedure........................................................................22
ARTICLE VIII
AMENDMENT AND TERMINATION
8.1 Amendment...............................................................................24
8.2 Termination.............................................................................24
ARTICLE IX
PROHIBITION ON ALIENATION
9.1 Prohibition on Alienation...............................................................25
ARTICLE X
CHANGE IN CONTROL OR POTENTIAL CHANGE IN CONTROL
10.1 Change in Control or Potential Change in Control........................................26
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C>
ARTICLE XI
TERMINATION FOR CAUSE
11.1 Termination for Cause...................................................................27
ARTICLE XII
MISCELLANEOUS
12.1 Plan Unfunded...........................................................................28
12.2 No Trust................................................................................28
12.3 No Contract of Employment...............................................................28
12.4 Gender; Number..........................................................................29
12.5 Choice of Law...........................................................................29
</TABLE>
iv
<PAGE> 6
ARTICLE I
PURPOSE
1.1 Purpose. This Marsh Deferred Compensation Plan (the "Plan") is an
unfunded plan designed to benefit a select group of management or highly
compensated employees who are covered under the Marsh Supermarkets, Inc. 401(k)
Plan (the "401(k) Plan") by providing them with the opportunity to defer
compensation and be credited with employer matching contributions that cannot be
deferred or contributed under the 401(k) Plan because of limitations on such
deferrals or employer matching contributions under Section 401(a)(17),
401(k)(3), 401(m)(2), 402(g) or 415 of the Internal Revenue Code of 1986, as
amended. The Plan is also designed to benefit a select group of management or
highly compensated employees who are not participants in the Supplemental
Retirement Plan of Marsh Supermarkets, Inc. and Subsidiaries by crediting them
with a benefit under the Plan based on the benefit they would have accrued under
the Employees' Pension Plan of Marsh Supermarkets, Inc. and Subsidiaries, which
was frozen as of December 31, 1996.
It is intended that compensation and other amounts credited under the
Plan be deferred until after the Participant's death, disability, early
retirement, normal retirement or other termination of employment. Payments may
also be made while employment continues in the case of financial hardship due to
unforeseeable emergencies.
1
<PAGE> 7
ARTICLE II
DEFINITIONS
2.1 Definitions. The following words and phrases used herein shall have
the following meanings:
(a) Administrator: The individual or committee or individuals
appointed to administer the Plan pursuant to Section 7.2, which unless
changed by the Board of Directors shall be the Retirement Committee.
(b) Adopting Company: Any organization, including a limited
liability company, or corporation affiliated with the Company which is
authorized by the Board of Directors of the Company to adopt the Plan,
and which adopts the Plan. The term shall also include the Company and
any organization or corporation into which an Adopting Company may be
merged or consolidated or by which it may be succeeded, and which may
adopt the Plan.
(c) Aggregate Deferral Dollars: The product of multiplying a
Participant's Aggregate Deferral Percentage by his Compensation.
(d) Aggregate Deferral Percentage: The total percentage of
Compensation which a Participant elects to defer under the Plan and the
401(k) Plan for the Plan Year; provided, however, that the Aggregate
Deferral Percentage shall be no more than fifteen percent (15%) of
Compensation and no less than six percent (6%) of Compensation (or such
other percentage of Compensation as determined by the Administrator in
its sole discretion).
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<PAGE> 8
(e) Beneficiary: The person or estate entitled under the terms
of Article VI to receive payment after the death of the Participant.
(f) Board of Directors: The Board of Directors of Marsh
Supermarkets, Inc.
(g) Cause: A felony conviction or a failure to contest
prosecution of a felony, or willful misconduct or dishonesty, any of
which is directly and materially harmful to the business and reputation
of the Company.
(h) Change in Control: The happening of any one of the
following events:
(i) The Company ceases to be a publicly-owned
corporation having its outstanding common stock traded on the
NASDAQ National Market or other national exchange; or
(ii) Any person or entity, including a "group" (as
defined in Section 13(d)(3) of the Securities Exchange Act of
1934), other than the Company or a benefit plan of the
Company, is or becomes the beneficial owner, directly or
indirectly, of securities of the Company representing 35% or
more of the combined voting power of the Company's then
outstanding securities that may be cast for the election of
the Board of Directors; or
(iii) During any period of two (2) consecutive years,
individuals who at the beginning of such period constitute the
Board of Directors cease for any reason to constitute at least
a majority thereof unless the election, or the nomination for
election by the Company's shareholders, of each new director
3
<PAGE> 9
was approved by a vote of at least two-thirds of the directors
then still in office who were directors at the beginning of
the period; or
(iv) The shareholders of the Company approve (1) any
merger, consolidation or other business combination of the
Company with any other "person" (as defined in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934) or affiliate
thereof, other than a merger or consolidation that would
result in the outstanding Class A common stock of the Company
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into common stock
of the surviving entity) at least sixty percent (60%) of the
outstanding Class A common stock of the Company or such
surviving entity outstanding immediately after such merger or
consolidation, (2) a plan of complete liquidation of the
Company; or (3) any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of
all, or substantially all, of the assets of the Company.
Notwithstanding the occurrence of any of the foregoing events,
the Board of Directors may determine that an event otherwise
constituting a Change in Control shall not be considered a Change in
Control for purposes of the Plan because such event has been approved
by the Board of Directors. Such determination by the Board of Directors
shall be effective only if it is made by the Board of Directors prior
to the occurrence of the event which would otherwise be a Change in
Control, or after such event if made by the Board of Directors, a
majority of which is composed of the same
4
<PAGE> 10
members as constituted the Board of Directors immediately prior to the
event that would otherwise be a Change in Control.
(i) Code: The Internal Revenue Code of 1986, as amended.
(j) Company: Marsh Supermarkets, Inc., an Indiana corporation,
and any successor, purchaser, or transferee of the operating assets and
business of Marsh Supermarkets, Inc. that elects to continue the Plan.
(k) Company Stock: Class A or Class B common stock of the
Company, as determined by the Administrator in its sole discretion.
(l) Compensation: A Participant's "Compensation" for the Plan
Year as defined at Section 2.1(p) of the 401(k) Plan; provided,
however, that the Participant's Compensation in excess of $150,000 (as
adjusted for cost-of-living under Section 401(a)(17)(B) of the Code)
shall be taken into account and Compensation shall include Elective
Deferrals under the Plan.
(m) Deferred Compensation Account: The bookkeeping account
maintained by the Employer to which a Participant's Elective Deferrals
and earnings thereon are credited.
(n) Disability: A physical or mental illness resulting in a
"Total Disability" as defined at Section 2.26 of the Pension Plan.
(o) Early Retirement: Separation from Service at any time
after the Participant's 55th birthday.
(p) Effective Date: January 1, 1997.
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<PAGE> 11
(q) Elective Deferrals: The amount for the Plan Year, if any,
credited to a Participant's Deferred Compensation Account pursuant to
Section 4.2.
(r) Employee: Any Highly Compensated Employee.
(s) Employer: The Company and any Adopting Company.
(t) Employer Matching Amount: The number of hypothetical
shares of Company Stock for the Plan Year, if any, credited to a
Participant's Matching Account pursuant to Section 4.3.
(u) Employer Matching Contributions: The contributions made by
the Employer to the 401(k) Plan as defined at Section 2.1(cc) of the
401(k) Plan.
(v) Fair Market Value: The closing sale prices per share of
the Company Stock on the NASDAQ National Market.
(w) 401(k) Dollars: The amount of Aggregate Deferral Dollars
that is contributed and allocated to the Participant's account under
the 401(k) Plan.
(x) 401(k) Plan: The Marsh Supermarkets, Inc. 401(k) Plan.
(y) Grandfathered Benefit Account: The bookkeeping account
maintained by the Employer to which a Participant's Grandfathered
Benefit Amounts and any earnings thereon are credited.
(z) Grandfathered Benefit Amount: The number of hypothetical
shares of Company Stock for the Plan Year, if any, credited to a
Participant's Grandfathered Benefit Account pursuant to Section 4.4.
(aa) Grandfathered Contributions: Contributions made by the
Employer to the 401(k) Plan as described at Section 4.1 of the 401(k)
Plan.
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<PAGE> 12
(bb) Highly Compensated Employee: A "Highly Compensated
Employee" as defined at Section 2.1(mm) of the 401(k) Plan.
(cc) Matching Account: The bookkeeping account maintained by
the Employer to which Employer Matching Amounts and any earnings
thereon are credited.
(dd) Matching Contribution Account: The account described at
Section 2.1(ss) of the 401(k) Plan to which is credited Employer
Matching Contributions.
(ee) MDCP Supplemental Trust: The Marsh Deferred Compensation
Plan Supplemental Income Trust.
(ff) Normal Retirement: Separation from Service at any time
after the Participant's 65th birthday.
(gg) Participant: An Employee who is participating or has
participated in the Plan by entering into a Salary Deferral Agreement,
or who is eligible or has been eligible to be credited with a
Grandfathered Benefit Amount or a Profit Based Matching Amount.
(hh) Pension Plan: The Employees' Pension Plan of Marsh
Supermarkets, Inc. and Subsidiaries.
(ii) Plan: The Marsh Deferred Compensation Plan as set forth
in this document and as amended from time to time.
(jj) Plan Year: The twelve-month period from January 1 to
December 31.
(kk) Potential Change in Control: The happening of any one of
the following events:
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<PAGE> 13
(1) The shareholders of the Company approve an
agreement, the consummation of which would result in a Change
in Control; or
(2) Any person or entity, including a "group" (as
defined in Section 13(d)(3) of the Securities Exchange Act of
1934), other than the Company or a benefit plan of the
Company, is or becomes the beneficial owner, directly or
indirectly, of securities of the Company representing five
percent (5%) or more of the combined voting power of the
Company's then outstanding securities that may be cast for the
election of the Board of Directors and the Board of Directors
adopts a resolution to the effect that a Potential Change in
Control has occurred.
Notwithstanding the occurrence of any of the foregoing events,
the Board of Directors may determine that an event otherwise
constituting a Potential Change in Control under Section 2(jj)(1) shall
not be considered a Potential Change in Control for purposes of the
Plan because such event has been approved by the Board of Directors.
Such determination by the Board of Directors shall be effective only if
it is made by the Board of Directors prior to the occurrence of the
event which would otherwise be a Change in Control, or after such event
if made by the Board of Directors, a majority of which is composed of
the same members as constituted the Board of Directors immediately
prior to the event that would otherwise be a Change in Control.
(ll) Profit Based Matching Account: The bookkeeping account
maintained by the Employer to which a Participant's Profit Based
Matching Amounts and any earnings thereon are credited.
8
<PAGE> 14
(mm) Profit Based Matching Amount: The number of hypothetical
shares of Company Stock for the Plan Year, if any, credited to a
Participant's Profit Based Matching Account pursuant to Section 4.5.
(nn) Profit Based Matching Contributions: Contributions made
by the Employer to the 401(k) Plan as described at Section 4.4 of the
401(k) Plan.
(oo) Retirement Committee: The Retirement Committee of the
Pension Plan.
(pp) Salary Deferral Agreement: The agreement between a
Participant and the Employer to defer receipt by the Participant of
Compensation not yet earned under the Plan and the 401(k) Plan.
(qq) Salary Reduction Contributions: Contributions made by the
Employer to the 401(k) Plan as described at Section 4.2 of the 401(k)
Plan.
(rr) Separation from Service: Termination of employment for
any reason with the Company and all Adopting Companies.
(ss) SRP: The Supplemental Retirement Plan of Marsh
Supermarkets, Inc. and Subsidiaries.
(tt) Year of Service: Each Year of Vesting Service credited to
an Employee under the 401(k) Plan.
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<PAGE> 15
ARTICLE III
PARTICIPATION
3.1 Participation. An Employee may become a Participant in the Plan as
provided in (a) or (b) below.
(a) An Employee who elects to make the maximum Salary
Reduction Contributions permitted under the 401(k) Plan may become a
Participant by completing a Salary Deferral Agreement and by submitting
it to the person designated by the Administrator prior to the beginning
of any Plan Year. The Participant must elect in the Salary Deferral
Agreement to reduce his Compensation by an amount not less than six
percent (6%) of his Compensation (or such other percentage of
Compensation as determined by the Administrator in its sole discretion)
nor more than fifteen percent (15%) of his Compensation. The Salary
Deferral Agreement shall be effective on the first day of the Plan Year
and shall be irrevocable for the Plan Year; provided, however, that the
Participant may terminate his Salary Deferral Agreement at any time by
written notice to the Administrator effective as soon as
administratively practicable after such notice of termination is
received by the Administrator. A new Salary Deferral Agreement must be
filed for each Plan Year and must be submitted to the person designated
by the Administrator prior to the beginning of the Plan Year.
(b) An Employee shall become a Participant, regardless of
whether he completes a Salary Deferral Agreement as provided in Section
3.1(a), if he is or has been entitled to be credited with either a
Grandfathered Benefit Amount or a Profit Based Matching Amount.
10
<PAGE> 16
ARTICLE IV
ACCOUNTS; VESTING
4.1 Establishment of Accounts. There shall be established for each
Participant, as applicable, a Deferred Compensation Account, Matching Account,
Grandfathered Benefit Account, and Profit Based Matching Account.
4.2 Deferred Compensation Account. The amount of Elective Deferrals
credited to a Participant's Deferred Compensation Account shall be equal to the
amount by which the Aggregate Deferral Dollars the Participant elects to defer
pursuant to a Salary Deferral Agreement exceeds his 401(k) Dollars. Elective
Deferrals shall be credited to the Participant's Deferred Compensation Account
at such times as determined by the Administrator in its sole discretion.
4.3 Matching Account. An Employer Matching Amount may be credited each
Plan Year to a Participant's Matching Account in the sole discretion of the
Administrator. However, until otherwise provided by the Administrator, the
Employer Matching Amount shall be equal to the number of hypothetical shares of
Company Stock that could be purchased by (i) twenty-five percent (25%) of a
Participant's Aggregate Deferral Dollars up to six percent (6%) of Compensation,
reduced by (ii) the amount of Employer Matching Contributions contributed to his
Matching Contribution Account under the 401(k) Plan. The Employer Matching
Amount shall be credited at such time as determined by the Administrator in its
sole discretion to the Matching Account of each Participant, including a
Participant who had a Separation from Service during the Plan Year.
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<PAGE> 17
The number of hypothetical shares of Company Stock credited pursuant to
this Section 4.3 (carried to two decimal places) shall be based on the Fair
Market Value of such Company Stock on the last day of the calendar quarter (or
on the next day the NASDAQ National Market is open if closed on such date) or at
such other time as determined by the Administrator in its sole discretion. The
number of hypothetical shares in the Participant's Matching Account shall be
appropriately adjusted to reflect stock splits, stock dividends, and other like
adjustments in such Company Stock.
4.4 Grandfathered Benefit Account. The Grandfathered Benefit Account of
an Employee who has not been selected to participate in the SRP and who would
have received an allocation of a Grandfathered Contribution under Section 5.2(a)
of the 401(k) Plan for a Plan Year if he were not a Highly Compensated Employee
shall be credited with a Grandfathered Benefit Amount equal to the number of
hypothetical shares of Company Stock that could have been purchased with the
amount of the Grandfathered Contribution he would have received under the 401(k)
plan; provided, however, that the amount of such Grandfathered Contribution
shall be determined based on Compensation under the Plan. The Grandfathered
Benefit Amount shall be credited at such time as determined by the Administrator
in its sole discretion.
The number of hypothetical shares of Company Stock credited pursuant to
this Section 4.4 (carried to two decimal places) shall be based on the Fair
Market Value of such Company Stock on the last day of the Plan Year (or on the
next day the NASDAQ National Market is open if closed on such date) or at such
other time as determined by the Administrator in its sole discretion. The number
of hypothetical shares in the Participant's Grandfathered Benefit
12
<PAGE> 18
Account shall be appropriately adjusted to reflect stock splits, stock
dividends, and other like adjustments in such Company Stock.
4.5 Profit Based Matching Account. The Profit Based Matching Account of
an Employee who has not been selected to participate in the SRP and who would
have received an allocation of a Profit Based Matching Contribution under
Section 5.2(c) of the 401(k) Plan for a Plan Year if he were not a Highly
Compensated Employee shall be credited with a Profit Based Matching Amount equal
to the number of hypothetical shares of Company Stock that could have been
purchased with the amount of the Profit Based Matching Contribution he would
have received under the 401(k) Plan; provided, however, that the amount of such
Profit Based Matching Contribution shall be determined based on Compensation
under the Plan. The Profit Based Matching Amount shall be credited at such time
as determined by the Administrator in its sole discretion.
The number of hypothetical shares of Company Stock credited pursuant to
this Section 4.5 (carried to two decimal places) shall be based on the Fair
Market Value of such Company Stock on the last day of the Plan Year (or on the
next day the NASDAQ National Market is open if closed on such date) or at such
other time as determined by the Administrator in its sole discretion. The number
of hypothetical shares in the Participant's Profit Based Matching Account shall
be appropriately adjusted to reflect stock splits, stock dividends, and other
like adjustments in such Company Stock.
4.6 Earnings Credited to Deferred Compensation Account. At such times
as determined by the Administrator in its sole discretion, but not less
frequently than once each
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<PAGE> 19
Plan Year, the Employer shall credit the Deferred Compensation Account of each
Participant with additions computed at the rate which is the greater of seven
percent (7%) per annum, compounded annually, or the rate of return for the
appropriate period on one or more investment funds of the 401(k) Plan as
selected by the Administrator in its sole discretion.
Such additions shall continue to be credited to the Deferred
Compensation Account of a Participant after his Separation from Service until
the last day of the calendar quarter immediately preceding the calendar quarter
during which the balance of such Account is paid in full to the Participant or
his Beneficiary.
4.7 Earnings Credited to Matching Account, Grandfathered Benefit
Account and Profit Based Matching Account. At such times as determined by the
Administrator in its sole discretion, but not less frequently than once each
Plan Year, the Employer shall credit the Matching Account, Grandfathered Benefit
Account and Profit Based Matching Account of each Participant with additions
equal to the number of hypothetical shares of Company Stock that could have been
purchased by an amount equal to the cash dividends paid during the Plan Year, if
any, on the number of hypothetical shares of Company Stock in the Account.
Such additions shall continue to be credited to the Matching Account,
Grandfathered Account and Profit Based Matching Account of a Participant after
his Separation from Service until the last day of the calendar quarter
immediately preceding the calendar quarter during which the balance of such
Account is paid in full to the Participant or his Beneficiary.
4.8 Vesting. A Participant shall always be 100 percent vested in his
Deferred Compensation Account and his Grandfathered Benefit Account. A
Participant shall be
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<PAGE> 20
"vested" (i.e., entitled to a specified percentage) in his Matching Account and
his Profit Based Matching Account based on Years of Service in accordance with
the following vesting table:
<TABLE>
<CAPTION>
Vested Percentage of
Years of Service Account
---------------- -------
<S> <C>
Fewer than 5 0%
5 or More 100%
</TABLE>
Notwithstanding the above vesting table, a Participant shall be 100 percent
vested in his Matching Account and his Profit Based Matching Account if he has a
Separation from Service on account of death, Disability, Early Retirement, or
Normal Retirement, or in the event of a Change in Control or Potential Change in
Control as provided in Article X.
15
<PAGE> 21
ARTICLE V
PAYMENT OF BENEFITS
5.1 Eligibility for Payment. Payments from a Participant's Accounts
shall be made only upon Separation from Service; provided, however, that
payments may be made from a Participant's Deferred Compensation Account upon the
occurrence of a "financial hardship" as described in Section 5.6.
5.2 Separation from Service. A Participant whose Separation from
Service is on account of death, Disability, Early Retirement, or Normal
Retirement shall be entitled to 100 percent of his Deferred Compensation
Account, Grandfathered Benefit Account, Matching Account, and Profit Based
Matching Account. A Participant whose Separation from Service is for any other
reason shall be entitled to 100 percent of his Deferred Compensation Account and
Grandfathered Benefit Account and the vested percentage (determined pursuant to
Section 4.8) of his Matching Account and Profit Based Matching Account. The
portion of the Participant's Matching Account and Profit Based Matching Account
which is not vested shall be forfeited at the time of Separation from Service.
5.3 Time of Payment. A Participant whose Separation from Service is on
account of Disability, Early Retirement, or Normal Retirement shall be entitled
to elect the time his payment under the Plan commences; provided, however, that
such payment shall commence no later than ninety (90) days after the end of the
calendar quarter during which the Participant attains age seventy (70). Payment
to a Participant (or his Beneficiary) whose Separation from
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<PAGE> 22
Service is for any other reason (including death) shall commence within ninety
(90) days after the end of the calendar quarter during which the Participant's
Separation from Service occurs.
A Participant's election as to the time of payment shall be made at any
time on or before the last day of the Plan Year immediately preceding the Plan
Year during which the Participant's Separation from Service occurs. If no
election is made before the end of such Plan Year, the payment shall be made
within ninety (90) days after the end of the calendar quarter during which the
Participant's Separation from Service occurs.
5.4 Form of Payment. A Participant whose Separation from Service is on
account of Disability, Early Retirement, or Normal Retirement may elect payment
in one of the following forms:
(a) One lump sum payment, or
(b) Payment in annual installments over a period not exceeding
five (5) years. Unless otherwise determined by the Administrator in is
sole discretion, the amount of each such annual installment shall be
equal to the amount determined by dividing the Participant's total
remaining vested benefit under the Plan as of the date thereof by the
number of installments (including such installment) remaining to be
paid to such Participant.
Payment to a Participant (or his Beneficiary) whose Separation from Service is
for any other reason (including death) shall be made in a single lump sum.
A Participant's election as to the form of payment shall be made at any
time on or before the last day of the Plan Year immediately preceding the Plan
Year during which the
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<PAGE> 23
Participant's Separation from Service occurs. If no election is made before the
end of such Plan Year, the payment shall be made in a single lump sum.
5.5 Medium of Payment. The payment of a Participant's benefit under
this Plan shall be made in cash.
5.6 Hardship Withdrawal. A Participant may request a withdrawal of all
or any portion of his Deferred Compensation Account on account of "financial
hardship." For this purpose, the term "financial hardship" means a severe
financial hardship to the Participant resulting from a sudden and unexpected
illness or accident of the Participant or of a dependent (as defined in Section
152 of the Code) of the Participant, loss of the Participant's property due to
casualty, or other similar extraordinary and unforeseeable circumstances arising
as a result of events beyond the control of the Participant. Withdrawals for
foreseeable expenditures normally budgetable, such as a down payment on a home
or purchase of an auto or college expenses, will not be permitted, nor will any
withdrawal be permitted to the extent that such hardship is or may be relieved:
(a) through reimbursement by insurance or otherwise; or
(b) by liquidation of the Participant's assets, to the extent
the liquidation of such assets would not itself cause severe financial
hardship.
The Administrator shall review the request and determine whether payment of any
amount is justified; and if so, how much is reasonably necessary to be paid to
meet the emergency. Any such payment shall be debited to the Participant's
Deferred Compensation Account, and the
18
<PAGE> 24
balance remaining in the Participant's Deferred Compensation Account shall be
payable in accordance with otherwise applicable provisions of the Plan.
A Participant who elects to make a hardship withdrawal of any portion
of his Deferred Compensation Account pursuant to this Section 5.6 shall not be
eligible to make Elective Deferrals until the Plan Year that first occurs after
the expiration of twelve (12) months from the date of such hardship withdrawal.
A Participant who is suspended from making Elective Deferrals pursuant to this
Section 5.6 shall remain a Participant even though he may not resume making
Elective Deferrals until after the period of his ineligibility has expired and
until he has completed and submitted to the person designated by the
Administrator a new Salary Deferral Agreement. Any suspension of a Participant
shall have no effect upon his rights under the Plan, except as expressly limited
by this Section 5.6, and earnings shall be credited to his Deferred Compensation
Account as in the case of all Participants.
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<PAGE> 25
ARTICLE VI
BENEFICIARIES
6.1 Designation of Beneficiary. Each Participant may from time to time
designate a Beneficiary or Beneficiaries to whom his Plan benefits are to be
paid if he dies before receipt of all such benefits. Each Beneficiary
designation, or revocation thereof, shall be in a form prescribed by the
Administrator and will be effective only when filed with the person designated
by the Administrator.
6.2 Failure to Designate a Beneficiary. If the Participant has no
designation of a Beneficiary in effect at the time of his death, or if no
designated Beneficiary survives the Participant, his Plan benefits shall be
payable in the following order of priority:
(a) to the surviving spouse;
(b) to the children, including adopted children, of the
Participant in equal shares, per stirpes: or if none survive,
(c) to the surviving natural parents of the Participant, in
equal shares; or if neither survives,
(d) to the estate of the Participant.
20
<PAGE> 26
ARTICLE VII
PLAN ADMINISTRATION AND CLAIMS REVIEW
7.1 Plan Administrator. The Administrator shall have the sole
responsibility for the administration of the Plan and shall have discretionary
authority to determine eligibility for benefits and to construe the terms of the
Plan. The Administrator may delegate its responsibilities under the Plan, which
include, but not by way of limitation, the following:
(a) to construe and interpret the Plan and determine the
amount, manner and time of payment of any benefits hereunder;
(b) to prescribe procedures to be followed by a Participant in
filing a Salary Deferral Agreement or by a Participant or Beneficiary
in filing an application for benefits;
(c) to determine the times and methods for crediting earnings
to a Participant's Account;
(d) to review a Participant's request for a hardship
withdrawal under Section 5.6 and determine whether payment of any
amount is justified and the amount reasonably necessary to meet the
hardship;
(e) to appoint or employ individuals to assist in the
administration of the Plan and any other agents it deems advisable,
including legal counsel; and
(f) to review a claim by a Participant or Beneficiary. The
individual to whom any of these duties are delegated shall not be disqualified
from becoming a Participant, but all decisions with regard to his participation
in the Plan, including the functions described above with regard to him, shall
be made by the Administrator. The
21
<PAGE> 27
Administrator reserves the right at any time by written notice to remove the
delegatee and name another individual, or to conduct the day-to-day
administration itself.
7.2 Appointment of Administrator. The Administrator shall serve at the
pleasure of the Board of Directors, which may remove the Administrator at any
time and appoint an individual or committee to serve as Administrator.
7.3 Claims Procedure. The Administrator or its delegatee shall make all
initial determinations regarding a claim for benefits. Any denial of a claim for
benefits made by a Participant or Beneficiary shall be stated in writing and
delivered or mailed to the Participant or Beneficiary. Such notice shall set
forth the specific reasons for the denial, written in a manner that may be
understood by a layman, and containing specific reference to pertinent
provisions of this Plan document on which such denial is based. In addition, the
Participant or Beneficiary whose claim for benefits has been denied shall have
the opportunity, within sixty (60) days after receipt of the written denial, to
submit a written request that the decision denying the claim be reviewed by the
Administrator. Such request must be addressed to P. Lawrence Butt, Senior Vice
President, Counsel & Secretary, Marsh Supermarkets, Inc., 9800 Crosspoint
Boulevard, Indianapolis, Indiana 46256-3350. If the claimant does not request a
review of the denial of his claim within such sixty (60) day period, the
determination shall be final, conclusive and binding.
Within sixty (60) days after the receipt of a request for review, the
Administrator will review the denial of the claim. After considering all
materials presented by the claimant, the Administrator will render a written
opinion, written in a manner calculated to be understood by
22
<PAGE> 28
the claimant, setting forth the specific reasons for the decision and containing
specific references to the pertinent provisions of the Plan on which the
decision is based. If special circumstances require that the sixty (60) day time
period be extended, P. Lawrence Butt will so notify the Claimant on behalf of
the Administrator, and the Administrator will render the decision as soon as
possible, but no later than one hundred twenty (120) days after receipt of the
request for review. Any determination or decision of the Administrator on review
of the denial of the claim shall be final, conclusive and binding.
23
<PAGE> 29
ARTICLE VIII
AMENDMENT AND TERMINATION
8.1 Amendment. The Company reserves the right to amend this Plan at any
time or from time to time by resolution of its Board of Directors; provided,
however, that any such amendment shall not operate retroactively so as to affect
adversely any vested rights to which a Participant or his Beneficiary is
entitled under the Plan prior to any such action.
8.2 Termination. Although the Company has established this Plan with
the expectation to maintain the Plan indefinitely, the Company may terminate the
Plan in whole or in part at any time without any liability for such termination.
Upon Plan termination, the crediting under the Plan of all Elective Deferrals,
Employer Matching Amounts, Grandfathered Benefit Amounts, and Profit Based
Matching Amounts, and the crediting of earnings on such Accounts, shall cease.
24
<PAGE> 30
ARTICLE IX
PROHIBITION ON ALIENATION
9.1 Prohibition on Alienation. No Participant or Beneficiary shall have
the right to assign, alienate or otherwise encumber any benefit payable under
the Plan, and any attempt to do so shall be void. None of the benefits payable
to a Participant or Beneficiary under the Plan shall be subject to the
Participant's or Beneficiary's debts or liabilities or claims of the
Participant's or Beneficiary's creditors, nor shall the benefits be subject to
attachment, garnishment or other legal process by such creditors.
25
<PAGE> 31
ARTICLE X
CHANGE IN CONTROL OR POTENTIAL CHANGE IN CONTROL
10.1 Change in Control or Potential Change in Control. In the event of
a Change in Control of the Company, a Participant or Beneficiary shall
immediately have nonforfeitable rights to all benefits under this Plan,
including the balances of his Matching Account and Profit Based Matching
Account. In the event of a Change in Control or Potential Change in Control, or
at such other times as the Board of Directors shall determine, the Company shall
either contribute an amount to the MDCP Supplemental Trust sufficient to provide
payment of all benefits to which the Participants or Beneficiaries would be
entitled under the Plan as of the date on which the Change in Control or
Potential Change in Control occurs or distribute such amount to the Participants
or Beneficiaries or to trusts or accounts designated by the Participants or
Beneficiaries. The contribution to the MDCP Supplemental Trust or the
distribution described in this Section 10.1 shall be made in cash.
26
<PAGE> 32
ARTICLE XI
TERMINATION FOR CAUSE
11.1 Termination for Cause: If the Participant has a Separation from
Service due to termination of employment for Cause prior to a Change in Control
or a Potential Change in Control, any unpaid balance from his Matching Account,
Grandfathered Benefit Account, and Profit Based Matching Account shall be
forfeited and the Administrator shall notify the Participant of such forfeiture
in writing. Payments from a Participant's Deferred Compensation Account shall
not be affected by termination of employment for Cause. The exercise by the
Employer of any right or remedy hereunder shall not be a waiver of or preclude
the exercise of any other right or remedy the Employer may have against the
Participant, and any forbearance by the Employer in exercising any right or
remedy hereunder shall not be a waiver of or preclude the later exercise of such
right or remedy.
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<PAGE> 33
ARTICLE XII
MISCELLANEOUS
12.1 Plan Unfunded. The payments to the Participant or Beneficiary
hereunder shall be made from assets which shall continue, for all purposes, to
be a part of the general, unrestricted assets of the Employer; no person shall
have any interest in any such assets by virtue of the provisions of this Plan.
The Employer'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 Employer under the provisions hereof, such right shall
be no greater than the right of any unsecured general creditor of the Employer;
no such person shall have or acquire any legal or equitable right, interest or
claim in or to any property or assets of the Employer.
12.2 No Trust. Nothing contained in this Plan, and no action taken
pursuant to its provisions by the Participant, Beneficiary, Administrator or any
other person or entity shall create, or be construed to create, a trust of any
kind, or a fiduciary relationship between the Employer and the Participant or
Beneficiary.
12.3 No Contract of Employment. Nothing contained in this Plan shall be
construed to be a contract of employment for any term of years, nor as
conferring upon the Participant the right to continue to be employed by the
Employer in his present capacity, or in any capacity. It is expressly understood
by the parties hereto that this Plan relates to the payment of deferred
compensation for the Participant's services, payable after termination of his
employment with the Employer, and is not intended to be an employment contract.
28
<PAGE> 34
12.4 Gender; Number. In this Plan, the singular shall include the
plural and the male designation shall include the female and the neuter, and
vice versa, except where the context expressly requires otherwise.
12.5 Choice of Law. This Plan, and the rights of the parties hereunder,
shall be governed by and construed in accordance with applicable federal law
and, to the extent otherwise applicable, the laws of the State of Indiana.
29
<PAGE> 35
IN WITNESS WHEREOF, Marsh Supermarkets, Inc. has caused this Plan to be
executed on this 25th day of September, 1998, by its duly authorized officers.
MARSH SUPERMARKETS, INC.
By: /s/ Don E. Marsh
---------------------------------
Title: President and Chief
Executive Officer
------------------------------
ATTEST:
/s/ P. Lawrence Butt
- ---------------------------------
Secretary
30
<PAGE> 1
EXHIBIT 5
[Marsh letterhead]
September 25, 1998
Marsh Supermarkets, Inc.
9800 Crosspoint Boulevard
Indianapolis, Indiana 46256-3350
Re: Registration Statement of Form S-8
Ladies and Gentlemen:
I have acted as counsel in the preparation of a Registration Statement
on Form S-8 (the "Registration Statement") relating to the Marsh Deferred
Compensation Plan (herein called the "Plan") and the obligations to be issued
thereunder (the "MDCP Obligations").
In so acting, I have examined and relied upon such records, documents,
and other instruments as in my judgment are necessary or appropriate in order to
express the opinions hereinafter set forth and have assumed the genuineness of
all signatures, the authenticity of all documents submitted to me as originals
and the conformity to original documents of all documents submitted to me as
certified or photostatic copies.
Based upon the foregoing, I am of the opinion that the MDCP Obligations
being registered hereunder, when issued or sold in accordance with the Plan,
will be valid and binding obligations of the Corporation, enforceable in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws of general applicability relating to or
affecting enforcement of creditors' rights or by general principles of equity.
I hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ P. Lawrence Butt
P. Lawrence Butt
Senior Vice President,
Counsel and Secretary
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Marsh Deferred Compensation Plan of Marsh
Supermarkets, Inc. of our report dated May 15, 1998, with respect to the
consolidated financial statements of Marsh Supermarkets, Inc. incorporated by
reference in its Annual Report (Form 10-K) for the year ended March 28, 1998,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
September 25, 1998
Indianapolis, Indiana
