RUBY TUESDAY, INC.
EXECUTIVE SUPPLEMENTAL PENSION PLAN
(Effective May 27, 1983)
(Restated July 1, 1999)
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TABLE OF CONTENTS
Page
ARTICLE I......................................................PURPOSE OF PLAN
ARTICLE II........................................DEFINITIONS AND CONSTRUCTION
ARTICLE III...................................SUPPLEMENTAL RETIREMENT BENEFITS
ARTICLE IV..........................................RETIREMENT OF PARTICIPANTS
ARTICLE V.................................VESTING AND DISTRIBUTION OF BENEFITS
ARTICLE VI..........................................CONDITIONS AND FORFEITURES
ARTICLE VII.........................................ADMINISTRATIVE OF THE PLAN
ARTICLE VIII.....................................................MISCELLANEOUS
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ARTICLE I
PURPOSE OF PLAN
The purpose of the Plan, as effective May 27, 1983, and as more fully set forth
herein, is to provide supplemental retirement benefits to Eligible Employees as
part of an integrated executive compensation program. The Plan shall be
maintained on an unfunded basis.
The Plan has been restated in its entirety effective June 1, 1986, primarily to
give a more complete description of the method of determining plan
participation, benefit service, and normal and early retirement benefits.
The Plan has been restated in its entirety as of July 1, 1999, to incorporate
into one document all prior amendments to the 1986 restatement.
ARTICLE II
DEFINITIONS AND CONSTRUCTION
2.01 Definitions:
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(a) The term "Annual Base Salary" refers to the base pay and
sales commissions, if payable, received by a Participant from
an Employer during a calendar year, and excluding any amounts
paid to him as overtime, bonuses, incentive compensation, and
contributions to this or any other pension benefit plan to
which an Employer contributes directly or indirectly. For
purposes of this Section and notwithstanding any other
provision of the Plan to the contrary, Annual Base Salary shall
not include any amounts paid to a Participant or Eligible
Employee by Morrison Fresh Cooking, Inc. or Morrison Health
Care, Inc. from and after the effective date of the
distributions of the common stock of Morrison Fresh Cooking,
Inc. and of the common stock of Morrison Health Care, Inc. to
the stockholders of the Company. For purposes of this Section
and notwithstanding any other provision of the Plan to the
contrary, with respect to any Former Morrison Employee, Annual
Base Salary shall not include any amounts paid during a
calendar year commencing prior to the effective date of the
Distributions.
(b) The term "Accrued Benefit" refers to the annual benefit to
which a Participant would be entitled, determined pursuant to
Section 3.01, based on his Final Base Salary and his
Continuous Service at the date of calculation, commencing on
his Normal Retirement Date in the mode of a single-life
annuity.
(c) The term "Board" refers to the Board of Directors of the Company, as
duly constituted from time-to-time.
(c1) The term "Cause" shall mean, with respect to a Subsection (c)
Participant's termination of employment with the Company or
any of its subsidiaries:
(1) the Participant's conviction of a felony;
(2) conduct by the Participant constituting a willful
refusal to perform any material duty assigned by the
Board;
(3) conduct by the Participant that amounts to fraud
against the
Company or any entity which is controlled by or is
under common control with the Company;
(4) a breach of the terms of any employment agreement
between the Participant and the Company or any
entity which is controlled by or is under common
control with the Company; or
(5) conduct by the Participant that amounts to willful
gross neglect or willful gross misconduct resulting
in material economic harm to the Company or any
entity which is controlled by or is under common
control with the Company.
(d) "[Reserved]."
(e) The term "Company" refers to Morrison Restaurants Inc.,
a Delaware corporation, or its successor in interest.
(f) The term "Continuous Service" refers to the period of unbroken
employment of an Employee with the Company or one or more of
its subsidiaries from his last date of employment, but shall
not include a period of employment beyond the Participant's
Normal Retirement Date.
Continuous Service of an Employee shall not be broken by and
shall include the periods of:
(1) his absence in the Armed Forces of the United States
or any of its allies in time of war in which the
United States shall be engaged, or in the Armed
Forces of the United States while any form of law
requiring compulsory military service shall be in
effect, if the Employee directly enters such Armed
Forces and does not reenlist after the date of first
entering and makes application for reemployment by
the Company within ninety (90) days, or such longer
period as may be prescribed by applicable law, after
discharge or release from such Armed Forces or from
hospitalization continuing for a period of not more
than one year after discharge or release from such
Armed Forces and is reemployed by the Company; and/or
(2) his absence because of lay-off not in excess of one
(1) years if the Employee returns to employment with
the Company when notified of his recall to work.
An Employee whose Continuous Service has been broken
because of termination of employment and who is thereafter
reemployed by the Company shall be deemed to be newly employed
for all purposes of the Plan and any previous service shall be
disregarded for purposes of the Plan.
With respect to Eligible Employees who were
Participants in the Plan prior to January 1, 1994, Continuous
Service shall not include any period of employment subsequent
to an Employee's participation in the Plan from and after the
date the Plan Administrator has expressly terminated an
Employee's participation in the Plan, unless and until he or
she thereafter qualifies as an Eligible Employee in accordance
with the provisions of the immediately succeeding sentence.
With respect to Eligible Employees who first become
Participants in the Plan after December 31, 1993, Continuous
Service shall not include any period of employment subsequent
to an Employee's participation in the Plan (i) during which
the Employee no longer holds any one of the Qualifying
Positions, (ii) following three (3) consecutive Plan Years
during which the Participant failed to earn an annual salary,
plus bonus, of at least $120,000 (as adjusted in accordance
with Plan Section 2.01(h)); or (iii) from and after the date
the Plan Administrator has expressly terminated an Employee's
participation in the Plan. An Eligible Employee who
experiences a break in Continuous Service as described in this
paragraph who again becomes an Eligible Employee or who is
reinstated by action of the Plan Administrator shall have his
periods of Continuous Service aggregated for purposes of
calculating his Accrued Benefit, but in no event shall such
aggregated periods of Continuous Service include periods
during which the Employee no longer holds any Qualifying
Position; any period of employment during which the Employee
is not an Eligible Employee following a three-consecutive Plan
Year period in which the Employee failed to earn at least
$120,000 (as adjusted in accordance with Plan Section
2.01(h)); or after the date the Employee's participation in
the Plan has been expressly terminated by the Plan
Administrator unless and until both the Plan Administrator
reverses that decision and the Employee otherwise qualifies as
an Eligible Employee.
For purposes of this Section and notwithstanding any
other provision of the Plan to the contrary, Continuous
Service shall not include any period of employment by a
Participant or Eligible Employee with Morrison Fresh Cooking,
Inc. or Morrison Health Care, Inc. from and after the
effective date of the distributions of the common stock of
Morrison Fresh Cooking, Inc. and of the common stock of
Morrison Health Care, Inc. to the stockholders of the Company.
For purposes of this Section and notwithstanding any
other provision of the Plan to the contrary, Continuous
Service shall not include any period of employment by a Former
Morrison Employee completed on or prior to the effective date
of the Distributions.
(f1) The term "Disability" shall mean the total inability of the
Participant to perform his duties for the duration of the
short-term disability period under the Company's short-term
disability policy then in effect as certified by a physician
chosen by the Company and reasonably acceptable to the
Participant.
(f2) "Distributions" means the distributions by Morrison
Restaurants, Inc. to its stockholders of all of the
outstanding shares of common stock, respectively, of Morrison
Fresh Cooking, Inc. and Morrison Health Care, Inc.
(g) The term "Effective Date" shall mean May 27, 1983.
(h) The term "Eligible Employee" means, prior to January 1, 1994,
an individual employed on a full-time basis by the Company
or one or more of its subsidiaries who has earned at least 850
HAY points, has been credited with at least three (3) "Years
of Service," as defined under the Morrison Incorporated
Retirement Plan [now known as the Ruby Tuesday,Inc. Retirement
Plan] and has been selected for participation by the Plan
Administrator and, after December 31, 1993, an individual
employed on a full-time basis by the Company or one or more of
its subsidiaries who earned an average salary, plus bonus, of
at least $120,000 (or such greater amount as may be determined
by the Plan Administrator from time to time) during the last
two (2) Plan Years immediately preceding the first day of the
Plan Year in which an Eligible Employee becomes a Participant
and who has completed at least five (5) full years of
consecutive service, on a calendar-year basis or otherwise,
during which the Employee has held one or more Qualifying
Positions.
(i) The term "Final Base Salary" refers to the dollar amount
determined by obtaining the average of the Participant's
Annual Base Salary over the five (5) consecutive Plan Years
which produce the highest average. If the Participant retires,
terminates employment or ceases to accrue Continuous Service
in accordance with Plan Section 2.01(f), his Annual Base
Salary for the final partial year of participation shall be
annualized for purposes of calculating Final Base Salary.
As an example of the manner in which this definition is
intended to operate, assume a Participant earns an Annual Base
Salary of Sixty Thousand Dollars ($60,000) in the fourth and
third Plan Years preceding the Plan Year in which he reaches
his Normal Retirement Date, and an Annual Base Salary of
Eighty Thousand Dollars ($80,000) in the second and first Plan
Years preceding such year, as well as in the year of his
normal retirement. Assume further that in all other Plan
Years, the Participant's Annual Base Salary was less than
$60,000. Based on such assumptions, the Participant's Final
Base Salary will equal:
$ 60,000
60,000
80,000
80,000
80,000 $360,000 = $72,000
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$360,000 5
(i1) "Former Morrison Employee" means an employee of Morrison
Restaurants, Inc. at any time prior to the effective date of
the Distributions who did not continue in the employ of Ruby
Tuesday, Inc. immediately after the Distributions, but who
subsequently has been rehired by Ruby Tuesday, Inc.
(j) The term "Normal Retirement Date" refers to the 65th
anniversary of the Participant's birth.
(k) The term "Participant" refers to any Eligible Employee upon
his entry into the Plan. An Eligible Employee shall become a
Participant as of the January 1st immediately following the
date the eligibility criteria stated in Section 2.01(h) are
satisfied. Upon retirement, termination of employment or
cessation of the accrual of Continuous Service in accordance
with Section 2.01(f), a Participant's status shall become that
of a former Participant. Except as the context may otherwise
require in Section 4.02, the term "Participant" shall
encompass any Subsection (b) Participant and any Subsection
(c) Participant.
(1) The term "Plan" means the Morrison Restaurants Inc. Executive
Supplemental Pension Plan; provided, however, that in the
event Morrison Restaurants Inc. is replaced by a successor in
interest, the title of the Plan shall thereafter be the name
of the successor in interest followed by the phrase "Executive
Supplemental Pension Plan".
(l)(l) The term "Plan Administrator" shall mean the organization or
person designated to administer the Plan by the Board of
Directors or, in lieu of any such designation, the Company.
(m) The term "Plan Year" refers to any calendar year within which
the Plan shall be in effect.
(n) The term "Primary Social Security Benefit" means the annual
primary insurance amount available to the Participant at age
65 under the Social Security Act as in effect at the date of
calculation, without regard to whether such amount actually
commences to be paid and without regard to any increase in the
Social Security Base or benefit levels that may take effect
after such date of calculation.
The Primary Social Security Benefit will be calculated as
though the Participant had a full Social Security Earnings
Record and as though the Participant always earned at least
the Social Security Taxable Wage Base.
The date of calculation will be the retirement date,
termination date or date of the cessation of the accrual of
Continuous Service in accordance with Plan Section 2.01(f),
whichever is applicable. The Primary Social Security Benefit
will be calculated based on the Social Security Law in effect
on the first day of the calendar year of the date of
calculation, and assuming constant Social Security Taxable
Wage Bases for the future years.
(o) "Qualifying Position" means one or more of the positions
within the Company's organizational hierarchy identified in
Appendix A hereto, as the same may be amended from time to
time hereafter by the Chief Executive Officer of the Company.
2.02 Construction:
------------
(a) Words used herein in the masculine or feminine gender shall be
construed as the feminine or masculine gender, respectively,
where appropriate.
(b) Words used herein in the singular or plural shall be construed
as the plural or singular, respectively, where appropriate.
ARTICLE III
SUPPLEMENTAL RETIREMENT BENEFITS
3.01 Amount of Benefit:
-----------------
A Participant's Accrued Benefit payable at Normal Retirement
Date in the form of single life annuity shall equal (A) plus (B) minus
(C) minus (D) as follows:
(A) 2.5% of the Participant's Final Base Salary multiplied by the
Participant's years and fractional years of Continuous Service
not in excess of twenty (20) years of Continuous Service; plus
(B) 1% of the Participant's Final Base Salary multiplied by the
Participant's years and fractional years of Continuous Service
in excess of twenty (20) years of Continuous Service, but not
in excess of thirty (30) such years; less
(C) The retirement benefit payable at Normal Retirement Date in
the form of a single life annuity to the Participant under the
Morrison Incorporated Retirement Plan [now known as the Ruby
Tuesday, Inc. Retirement Plan]; less
(D) The Participant's Primary Social Security Benefit, calculated
in accordance with Section 2.01(n).
For purposes of this Section 3.01, each completed month of
Continuous Service shall equal one-twelfth (1/12th) of a year of
Continuous Service.
3.02 Distribution of Benefits:
------------------------
Benefits accrued hereunder shall be paid in accordance with Article V.
3.03 Encumbrance of Award:
--------------------
No Participant or beneficiary of a Participant shall have any
right to commute, encumber, transfer or otherwise dispose of or
alienate any present or future right or expectancy which he may have at
any time to receive payment of benefits, which benefits and the right
thereto are expressly declared to be non-assignable and
non-transferable. Any attempt to transfer or assign a benefit, or any
rights granted hereunder, by a Participant or his beneficiaries shall,
in the sole discretion of the Plan Administrator after consideration of
such facts as it deems pertinent, be grounds for terminating any rights
of the Participant and his beneficiaries to any portion of the benefits
not previously paid by the Company.
ARTICLE IV
RETIREMENT OF PARTICIPANTS
4.01 Normal Retirement:
-----------------
A Participant may continue in the service of the Company beyond his
Normal Retirement Date, but shall not be permitted to continue in the
employ of the Company without first obtaining the Company's consent,
subsequent to the age at which the Company may require the retirement
of the Participant under applicable federal and state laws. If a
Participant continues in service beyond his Normal Retirement Date, he
shall be deemed to be retired upon his Postponed Retirement Date as
determined under the Morrison Incorporated Retirement Plan [now known
as the Ruby Tuesday, Inc. Retirement Plan].
4.02 Early Retirement:
----------------
(a) Actuarially Reduced Early Retirement Benefit. Before a
Participant is eligible for normal retirement pursuant to
Section 4.01 above, the Participant may retire from service
with the Company or any of its subsidiaries prior thereto and
commence receiving benefits pursuant to this Subsection (a) if
the Participant has attained age 55 while in the service of
the Company or any of its subsidiaries. The Accrued Benefit
determined under Section 3.01, but payable pursuant to this
Section 4.02(a), shall be reduced by multiplying the Accrued
Benefit amount by the applicable early retirement reduction
factor indicated in the table below:
Number of Years until Eligible
For Unreduced Retirement Benefit Early Retirement Factor
1 .93
2 .86
3 .79
4 .72
5 .65
6 .62
7 .59
8 .56
9 .53
10 .50
(b) Unreduced Early Retirement Benefit. A Participant identified
in Appendix B to the Plan, as Appendix B may be amended from
time to time by action of the Board (a Participant so
identified on Appendix B is referred to hereafter as a
`Subsection (b) Participant') may retire from service with the
Company or any of its subsidiaries prior to reaching his
Normal Retirement Date and commence receiving benefits from
the Plan pursuant to this Section 4.02(b) if:
(i) the Subsection (b) Participant attains age 60 prior
to termination of employment from the Company or any
of its subsidiaries; or
(ii) at the time of retirement from service with the
Company or any of its subsidiaries, the Subsection
(b) Participant is at least age 55 and the sum of the
Subsection (b) Participant's age and years of
Continuous Service equals or exceeds ninety (90)
(referred to herein as the "Rule of 90").
The Accrued Benefit, as determined in Section 3.01, but
payable pursuant to this Section 4.02(b), will not be subject
to actuarial reduction.
(c) Special Early Retirement Benefit. A Participant identified
in Appendix C to the Plan, as Appendix C may be amended from
time to time by action of the Board (a Participant so
identified on Appendix C is referred to hereafter as a
`Subsection (c) Participant') may retire from service with the
Company and its subsidiaries prior to satisfying the Rule of
90 and commence receiving benefits from the Plan pursuant to
this Section 4.02(c) if the Subsection (c) Participant (i) is
involuntarily terminated (other than for Cause) by the
Company and its subsidiaries; or (ii) experiences a
termination of employment from the Company and its
subsidiaries due to a Disability.
The Accrued Benefit, as determined in Section 3.01, but
payable pursuant to this Section 4.02(c), will be either: (1)
determined without the actuarial reduction provided for in
Section 4.02(a) with such Accrued Benefit payable commencing
as of the date the Subsection (c) Participant would have
satisfied the Rule of 90 had his employment not terminated; or
(2) multiplied by the reduction factor of .93 with such
adjusted Accrued Benefit payable commencing at age 55. A
Subsection (c) Participant may elect whether payment shall be
made pursuant to Clause (1) or (2) of the immediately
preceding sentence, if the Subsection (c) Participant
irrevocably so elects in writing at least one (1) year prior
to the date that the Accrued Benefit becomes payable. If the
Subsection (c) Participant fails to make a timely election as
so provided in the immediately preceding sentence, payment
shall be made pursuant to Clause (1) or (2) as elected by the
Participant, but only with the approval of the Chairman of the
Compensation and Stock Option Committee of the Board or the
approval of a majority of the members of either the Board or
the Compensation and Stock Option Committee of the Board
present at a meeting duly called and convened at which a
quorum is present.
In determining any Accrued Benefit under this Section 4.02,
the amount of any offset under Section 3.01(C) shall be calculated as
the retirement benefit payable in the form of a single life annuity to
the Participant under the Morrison Restaurants Inc. Retirement Plan
[now known as the Ruby Tuesday, Inc. Retirement Plan] at the
Participant's Normal Retirement Date (as defined therein). Any amounts
that become payable pursuant to Section 4.02(c) to a Subsection (c)
Participant who experiences a termination of employment due to a
Disability shall be reduced by the amount of disability payments
actually paid to the Subsection (c) Participant under a long-term
disability plan maintained by the Company or any of its subsidiaries.
Such offsets shall occur only as and when disability payments are paid
to the Subsection (c) Participant by the insurer of the disability
benefits so provided; provided, however, that if the Subsection (c)
Participant's Accrued Benefit is paid in the form of a lump sum, there
shall be no offset applied on account of the receipt of disability
benefits.
ARTICLE V
VESTING AND DISTRIBUTION OF BENEFITS
5.01 Vesting:
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A Participant's Accrued Benefit shall vest in the Participant at such
time as he reaches his Normal or Early Retirement Date. If a
Participant terminates employment other than by retirement or death, he
shall be vested in his Accrued Benefit if he has completed ten (10) or
more Years of Service determined under the Morrison Incorporated
Retirement Plan [now known as the Ruby Tuesday, Inc. Retirement Plan].
If a Participant terminates employment other than by retirement or
death and has not completed ten (10) or more Years of Service
determined under the Morrison Incorporated Retirement Plan [now known
as the Ruby Tuesday, Inc. Retirement Plan], he shall not be vested in
his Accrued Benefit, his Accrued Benefit shall be cancelled and he
shall not be entitled to any further benefits from the Plan.
5.2 Payment of Benefits:
-------------------
When a Participant reaches his Normal Retirement Date, retires by
reason of the Early Retirement provisions of the Plan (Section 4.02),
or otherwise terminates his service with the Company or any of its
subsidiaries, the Plan Administrator shall determine and certify to the
Treasurer of the Company the vested Accrued Benefit of the Participant,
if any, and shall further determine and certify the method by which
payments shall be made. The Company shall thereafter make payments of
the benefits in the manner and at the times so designated, subject,
however, to all other terms and conditions of the Plan.
A benefit payable under the Plan shall be paid in the same form and at
the same time as any retirement benefit payable to the Participant
under the Morrison Restaurants Inc. Retirement Plan [now known as the
Ruby Tuesday, Inc. Retirement Plan]. If a Participant does not have an
accrued benefit under the Morrison Restaurants Inc. Retirement Plan
[now known as the Ruby Tuesday, Inc. Retirement Plan], the benefit
payable under the Plan shall nevertheless be subject to the same
distribution rules as provided under the Morrison Restaurants Inc.
Retirement Plan [now known as the Ruby Tuesday, Inc. Retirement Plan],
as the same may be amended from time to time; provided, however, that
the selection of the form and timing of the benefit shall be subject to
the approval of the Company. Except as otherwise expressly provided
herein, if a benefit payable under this Plan is paid other than as a
life annuity, the amount of the benefit when paid in such other form
shall be determined by using the then applicable actuarial equivalence
factors of the Morrison Restaurants Inc. Retirement Plan [now known as
the Ruby Tuesday, Inc. Retirement Plan].
Notwithstanding the foregoing, the Accrued Benefit of a
Subsection (c) Participant may be paid in a lump sum. In determining
the amount of the lump sum payment, the Accrued Benefit shall be
discounted by the then current FAS 87 discount rate and by applying the
applicable FAS 87 mortality table. The Accrued Benefit of a Subsection
(c) Participant will be paid in a lump sum (1) if the Subsection (c)
Participant irrevocably elects in writing to receive a lump sum payment
from the Plan at least one (1) year prior to the date that the Accrued
Benefit becomes payable; or (2) if the Subsection (c) Participant fails
to make a timely election as provided in Clause (1), with the approval
of the Chairman of the Compensation and Stock Option Committee of the
Board or the approval of a majority of the members of either the Board
or the Compensation and Stock Option Committee of the Board present at
a meeting duly called and convened at which a quorum is present.
For purposes of determining the timing of any benefit payments under
the Plan, notwithstanding any other provision of the Plan to the
contrary, a Participant shall not be deemed to have retired or
otherwise terminated his or her service with the Company or any of its
subsidiaries for as long as the Participant remains in the service of
Morrison Fresh Cooking, Inc. or Morrison Health Care, Inc. from and
after the effective date of a distribution of all of the outstanding
shares of common stock of the applicable subsidiary by the Company to
its stockholders.
5.03 Death of Participant:
--------------------
If a Participant shall die during the term of his employment with the
Company or any of its subsidiaries, and prior to his retirement or
other termination from service, the said employment shall be deemed to
have terminated on the date of the Participant's death and the Company
shall have no further obligation to the Participant, his estate, heirs
or beneficiaries under this Plan, it being specifically the intention
of the Board in creating this Plan that it supplement, by way of
providing living retirement benefits, the existing insurance benefit
program which will protect the interests of the families of executive
employees who die while in the Continuous Service of the Company or any
of its subsidiaries.
If a Participant shall die after his retirement or other termination of
service, benefit payments shall continue to the Participant's
designated beneficiaries, or his estate, at such times and in such
manner, as is provided for under the form of payment determined under
the provisions of Section 6.02 of the Plan. Each Participant shall
notify the Plan Administrator in writing of the name and address of his
primary alternative beneficiaries, which may be changed from
time-to-time by the Participant by written notice delivered to the Plan
Administrator.
ARTICLE VI
CONDITIONS AND FORFEITURES
6.01 Forfeiture of Accrued Benefit
If a Participant's Continuous Service is terminated because of
his proven or admitted fraud or dishonesty of a material nature, his
willful damage to property, reputation or goodwill of the Company, or
any of its subsidiaries, his conviction of a felony, his willful and
material insubordination or violation of Company rules, and/or his
gross neglect of duties assigned by the Company; and if such act or
action adversely affects the Company in a substantial respect, then
notwithstanding any other provision of this Plan, the Plan
Administrator may determine that any benefits to which such Participant
might otherwise have been entitled under the Plan shall be forfeited.
The decision of the Plan Administrator with respect to sufficiency of
the proof or admission of such act or action, the substantially adverse
affect thereof, and the forfeiture resulting therefrom, as long as made
with consistency and sound judgment, shall be final and binding.
6.02 Forfeiture of Early Retirement Benefit
Upon a Participant's early retirement under Section 4.02, the
Participant shall not, without the prior written consent of the
Company, for the two-year period commencing with his retirement (the
"Non-Competition Period"), engage in activities of the same character
and scope to those in which he was engaged (1) on behalf of a division
of the Company (and/or a subsidiary), or (2) on behalf of the Company
(and/or a subsidiary) in a corporate or staff specialized function,
immediately prior to his retirement for a competitor at a location
within the United States.
If a Participant fails to cure any alleged breach of this
Section 6.02 within thirty (30) days following receipt of written
notice from the Company, the Company may apply a forfeiture penalty
against the Participant with respect to each future periodic payment
due him under the Plan equal to the difference between the periodic
payment otherwise payable to him pursuant to Section 4.02(a) or (b), as
the case may be, and the amount the Participant would have received as
a periodic payment had the Participant's Accrued Benefit been reduced
by the applicable discount factor set forth below:
Age at Retirement Discount Factor
64 .93
63 .86
62 .79
61 .72
60 .65
59 .62
58 .59
57 .56
56 .53
55 .50
Any such forfeiture may be applied against each future
periodic payment due to the Participant under the Plan until the first
to occur of (i) the expiration of Non-Competition Period, or (ii) the
date the Company determines that the Participant is no longer in breach
of the provisions of this Section 6.02.
For purposes of this Section 6.02, as to a Participant, the
term "competitor" means (A), (B), (C) or (D) below, depending upon the
division or position within the Company (or subsidiary) for which the
Participant provided services at the time of his retirement:
(A) if the Participant was then performing services for either the Ruby Tuesday
Division or Specialty Division (or any successors thereto), any multi-unit,
multi-state foodservice business that is of a character and concept similar
to a Ruby Tuesday restaurant, including, but not limited to, a casual
dining restaurant business with an American themed, generic, broad-based
menu similar in concept to Ruby Tuesday, serving soups, sandwiches,
chicken, ethnic cuisine, health or fitness oriented dishes and a full bar
or for any other multi-unit foodservice business that is of a character and
concept involving casual dining with an ethnic or other themed menu similar
to any restaurant then being operated or otherwise maintained by the Ruby
Tuesday Division or Specialty Division (or successors thereto);
(B) if the Participant was then performing services for the Heath Care Division
(or any successor thereto), any multi-unit, multi-state foodservice
business that is engaged in providing food and nutritional services to
medical and residential care facilities for the sick and elderly,
including, without limitation, elderly feeding programs and similar
programs;
(C) if the Participant was then performing services for the Family Dining
Division (or any successor thereto), any multi-unit, multi-state
foodservice business that is engaged in operating or otherwise maintaining
family-style dining cafeterias; or
(D) if the Participant was then performing services for the Company (and/or a
subsidiary) (or any successor thereto) in a corporate or staff specialized
function at retirement, any business described in (A), (B) or (C) above.
ARTICLE VII
ADMINISTRATION OF THE PLAN
A. Operation of the Plan Administrator The Company shall be the Plan
Administrator, unless it appoints another Plan Administrator. If an
organization is appointed to serve as the Plan Administrator, then the
Plan Administrator may designate in writing a person who may act on
behalf of the Plan Administrator. The Company shall have the right to
remove the Plan Administrator at any time by notice in writing. The
Plan Administrator may resign at any time by written notice of
resignation to the Company. Upon removal or resignation, or in the
event of the dissolution of the Plan Administrator, the Company shall
appoint a successor.
B. Duties of the Plan Administrator
1. The Plan Administrator shall perform any act which
the Plan authorizes or requires of the Plan Administrator by
action taken in compliance with the Plan and may designate in
writing other persons to carry out its duties under the Plan.
The Plan Administrator may employ persons to render advice
with regard to any of the Plan Administrator's duties.
2. The Plan Administrator shall from time to time
establish rules, not contrary to the provisions of the Plan,
for the administration of the Plan and the transaction of its
business. All elections and designations under the Plan by a
participating Employee or beneficiary shall be made on forms
prescribed by the Plan Administrator. The Plan Administrator
shall have discretionary authority to construe the terms of
the Plan and shall determine all questions arising in the
administration, interpretation and application of the Plan,
including, but not limited to, those concerning eligibility
for benefits and it shall not act so as to discriminate in
favor of any person. All determinations of the Plan
Administrator shall be conclusive and binding on all Employees
and beneficiaries, subject to the provisions of the Plan and
subject to applicable law.
3. The Plan Administrator shall furnish Employees and
Beneficiaries with all disclosures now or hereafter required
by the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"). The Plan Administrator shall file, as
required, the various reports and disclosures concerning the
Plan and its operations as required by ERISA and by the
Internal Revenue Code, and shall be solely responsible for
establishing and maintaining all records of the Plan.
4. The statement of specific duties for a Plan
Administrator in this Section are not in derogation of any
other duties which a Plan Administrator has under the
provisions of the Plan or under applicable law.
5. The Company shall indemnify and hold harmless each
person constituting the Plan Administrator from and against
any and all claims and expenses (including, without
limitation, attorney's fees and related costs) arising in
connection with the performance by the person of his or her
duties in that capacity, other than any of the foregoing
arising in connection with the willful neglect or willful
misconduct of the person acting.
C. Action by the Company Any action to be taken by the Company shall be
taken by resolution or written direction duly adopted by the Board or
appropriate governing body, as the case may be; provided, however, that
by such resolution or written direction, the Board or appropriate
governing body, as the case may be, may delegate to any officer or
other appropriate person of the Company the authority to take any such
actions as may be specified in such resolution or written direction,
other than the power to amend or terminate the Plan or to determine the
basis of any payment obligations of the Company.
D. CLAIM REVIEW PROCEDURE
1. In the event that an Employee or beneficiary is
denied a claim for benefits under the Plan, the Plan
Administrator shall provide to such claimant written notice of
the denial which shall set forth:
a. the specific reasons for the denial;
b. specific references to the pertinent
provisions of the Plan on which the
denial is based;
c. a description of any additional
material or information necessary
for the claimant to perfect the
claim and an explanation of why such
material or information is
necessary; and
d. an explanation of the Plan's claim
review procedure.
2. After receiving written notice of the denial of a
claim, a claimant or his or her representative may:
a. request a full and fair review of
such denial by written application to the Plan Administrator;
b. review pertinent documents; and
c. submit issues and comments in
writing to the Plan Administrator.
3. If the claimant wishes such a review of the
decision denying his or her claim to benefits under the Plan,
he or she must submit such written applications to the Plan
Administrator within sixty (60) days after receiving written
notice of the denial.
4. Upon receiving such written application for
review, the Plan Administrator may schedule a hearing for
purposes of reviewing the claimant's claim, which hearing
shall take place not more than thirty (30) days from the date
on which the Plan Administrator received such written
application for review.
5. At least ten (10) days prior to the scheduled
hearing, the claimant and his or her representative designated
in writing by him or her, if any, shall receive written notice
of the date, time, and place of such scheduled hearing. The
claimant or his or her representative, if any, may request
that the hearing be rescheduled, for his or her convenience,
on another reasonable date or at another reasonable time or
place.
6. All claimants requesting a review of the decision
denying their claim for benefits may employ counsel for
purposes of the hearing.
7. No later than sixty (60) days following the
receipt of the written application for review, the Plan
Administrator shall submit its decision on the review in
writing to the claimant involved and to his or her
representative, if any; provided, however, a decision on the
written application for review may be extended, in the event
special circumstances such as the need to hold a hearing
require an extension of time, to a day no later than one
hundred twenty (120) days after the date of receipt of the
written application for review. The decision shall include
specific reasons for the decision and specific references to
the pertinent provisions of the Plan on which the decision is
based.
ARTICLE VIII
MISCELLANEOUS
8.01 Unfunded Plan:
-------------
Any Participant who may have or claim any interest in or right to any
compensation, payment or benefit payable hereunder, shall rely solely
upon the unsecured promise of the Company as set forth herein for the
payment thereof, and nothing herein contained shall be construed to
give to or vest in the Participant or any other person now or at any
time in the future, any right, title, interest or claim in or to any
specific asset, fund, reserve, account or property of any kind whatever
owned by the Company or in which it may have any right, title or
interest now or at any time in the future.
8.02 Additional Benefits:
-------------------
It is agreed and understood that any benefits accrued under this Plan
are in addition to any and all employee benefits to which a Participant
may otherwise be entitled under any other contract, arrangement or
voluntary pension, profit sharing or other compensation plan of the
Company, and that this Plan shall not affect or impair the rights or
obligations of the Company or a Participant under any other such
contract, arrangement or voluntary plan.
8.03 Modification and Cancellation:
-----------------------------
This Plan may be amended, modified, suspended or terminated by the
Board as and when it deems such action necessary; however, no such
action shall have the effect of terminating or voiding a Participant's
contractual right to receive that portion of any award made hereunder
which shall have vested in him as of the time of such Board action.
8.04 Enforceability:
--------------
If any term or condition of the Plan shall be invalid or unenforceable
to any extent or in any application, then the remainder of the Plan,
and such term or condition except to such extent or in such
application, shall not be affected thereby, and each and every term and
condition of the Plan shall be valid and enforced to the fullest extent
and in the broadest application permitted by law.
8.05 Notices:
-------
All notices or other communications permitted to be given or called for
pursuant to the Plan shall be in writing and shall be considered as
properly given or made if hand delivered, mailed from within the United
States by certified or registered mail, or sent by prepaid telegram:
(1) If to the Company, in care of its Chief Financial Officer,
150 West Church Avenue, Maryville, Tennessee 37801.
(2) If to a Participant, in care of him at such address as he
shall have provided in writing to the Plan Administrator, or
in the absence thereof, to such other address as shall appear
on the books of the Company
RUBY TUESDAY, INC.
By:
[CORPORATE SEAL] Samuel E. Beall, III
Chairman and Chief Executive Officer
ATTEST:
Daniel T. Cronk
Secretary
<PAGE>
APPENDIX A
RUBY TUESDAY, INC.
EXECUTIVE SUPPLEMENTAL PENSION PLAN
(Restated July 1, 1999)
Eligible Positions from March 9, 1996 through June 29, 1998
President/CEO
President, Ruby Tuesday
Sr. Vice President, Chief Financial Officer
Sr. Vice President, Human Resources
Sr. Vice President, Legal
Sr. Vice President, Marketing/Strategy
Sr. Vice President, Regional Operations
Vice President & Controller
Vice President, Asst. General Counsel/Asst. Secretary
Vice President, Project Development
Vice President, Regional Operations
Eligible Positions Effective June 30, 1998*
All Vice Presidents and Above
Eligible Positions Effective April 1, 1999
All Vice Presidents and Above
Human Resource Director (but not any Director of Human Resources position)
*In accordance with Section 2.01(k) of the Plan, any person
who occupies a position that has been first recognized as a
Qualifying Position as of June 30, 1998 shall first become a
Participant in the Plan as of the later of January 1, 1999 or
the date that all of the remaining eligibility criteria set
forth in Section 2.01(h) of the Plan are satisfied.
<PAGE>
APPENDIX B
The following person(s) have been designated as "Subsection (b) Participant(s)":
(as of July 1, 1999)
Hunt, Pfil
Ingram, Mark
McClenagan, Robert
Mothershed, Russell
O'Toole, Andy
Vilord, Ron
Wallace, Lee
<PAGE>
APPENDIX C
The following person(s) have been designated as "Subsection (c) Participant(s)":
(as of July 1, 1999)
Samuel E. Beall, III
