EXHIBIT
10.29


 


TOOTSIE ROLL INDUSTRIES, INC.


 


POST-2004 SUPPLEMENTAL SAVINGS PLAN


 


WHEREAS,
Tootsie Roll Industries, Inc., a Virginia corporation (the “Company”),
maintains the Tootsie Roll Industries, Inc. Profit Sharing Plan (the “Profit
Sharing Plan”) for the benefit of its employees and those of its subsidiaries;


 


WHEREAS,
section 401(a)(17) of the Internal Revenue Code of 1986, as amended (the “Code”),
limits the amount of annual compensation that may be taken into account under
the Profit Sharing Plan (the “Compensation Limit”);


 


WHEREAS,
section 402(g) of the Code limits the contributions to a participant’s
elective account under the Profit Sharing Plan (the “Dollar Limit”);


 


WHEREAS,
section 401(k) of the Code (the “Before-Tax Contribution Limit”) may limit
the amount of contributions which may be allocated to the elective accounts of
certain highly compensated participants under the Profit Sharing Plan;


 


WHEREAS,
section 415 of the Code limits the allocations to participants’ accounts under
the Profit Sharing Plan (and any other Company and Employer defined
contribution plans subject to section 415 of the Code) (the “Section 415
Limit”); and


 


WHEREAS,
the Company and each Employer desire to provide benefits to “a select group of
management or highly compensated employees” within the meaning of the Employee
Retirement 


 

















 


Income
Security Act of 1974, as amended (“ERISA”), equal to the contributions which,
but for sections 401(a)(17), 402(g), 401(k), and 415 of the Code (collectively,
the “IRS Limits”) would have been contributed to the Profit Sharing Plan.


 


NOW,
THEREFORE, effective as of January 1, 2005 (the “Effective Date”), the
Company and each Employer hereby agree as follows:


 


1.                                       Definitions. 
All capitalized terms used herein shall have the respective meanings as
set forth in the preamble to or text of this Plan or below:


 


(a)                                  Account.  An account established for a calendar year
deferral under paragraph 3 of this Plan or a rollover from the Prior Plan under
paragraph 4.


 


(b)                                 Administrator. 
The Company.


 


(c)                                  Board.  The Board of
Directors for the Company.


 


(d)                                 Change of Control. 
A “Change of Control” of the Company occurs when:


 


(i)                                     any person, or more than one person
acting as a “group” (as defined in section 1.409A-3(i)(5) of the Treasury
Regulations), acquires ownership of equity securities of the Company that,
together with equity securities held by such person or group, constitutes more
than 50% of the total voting power of the equity securities of the Company;
provided, however, that if any person or group, is considered to own more than
50% of the total voting power of the equity securities of the Company, the
acquisition of additional equity securities by the same person or group will
not be considered a Change of Control under this Plan.  An increase in the percentage of equity
securities of the Company owned by any person or group as a result of a
transaction in which the Company acquires its own equity securities in exchange
for property will be treated as an acquisition of equity securities of the
Company for purposes of this paragraph; or


 


(ii)                                  any one person, or more than one person
acting as a group, acquires (or has acquired during the 12-month period ending
on the date of the most recent acquisition by such person or persons) ownership
of the equity securities of the Company possessing 30% or more of the total
voting power of the equity securities of the Company; or


 


(iii)                               during any period of 12 consecutive
months, individuals who at the beginning of such period constituted the Board
(together with (a) any new 


 

















 


or replacement
directors whose election by the Board, or (b) whose nomination for
election by the Company’s shareholders, was approved by a vote of at least a
majority of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
directors then in office;


 


except that no event
described in paragraph (i) or (ii) above shall constitute a Change of
Control if immediately after the event Melvin J. Gordon, Ellen R. Gordon, their
descendants (and spouses of such descendents) and any trusts or estates in
which such persons have a beneficial interest, directly or indirectly, own
equity securities of the Company that constitutes no less than 50% of the total
voting power of the equity securities of the Company.


 


(e)                                  Compensation.  “Compensation” shall have the same meaning as
that term is defined in the Profit Sharing Plan from time to time.


 


(f)                                    Employer.  The Company
and each domestic subsidiary of the Company that is eligible to adopt and has
adopted, with the Company’s consent, the Profit Sharing Plan.  The term “Employer” shall also include all
persons with whom the Company and each domestic subsidiary of the Company would
be considered a single employer under section 414(b) of the Code
(employees of a controlled group of corporations), and all persons with whom
the Company and each domestic subsidiary of the Company would be considered a
single employer under section 414(c) of the Code (employees of
partnerships, proprietorships, or other entities under common control).


 


(g)                                 Participant. 
An employee of the Company or an Employer who is a participant in the
Profit Sharing Plan and:


 


(i)                                     who serves in an executive or management
capacity for the Company or an Employer at an annual salary rate of One Hundred
Thousand Dollars ($100,000) or more and who has been designated by the Board or
the Administrator as eligible for this Plan; and


 


(ii)                                  who elects to participate in this Plan
for a calendar year pursuant to paragraph 2 or for whom a Rollover Account is
established under paragraph 4.


 


(h)                                 Plan.  This Tootsie
Roll Industries, Inc. Post-2004 Supplemental Savings Plan, as from time to
time amended.


 


(i)                                     Prior Plan.  The Tootsie
Roll Industries, Inc. Supplemental Savings Plan.


 


(j)                                     Unforeseeable Emergency. 
Unforeseeable Emergency means the occurrence of a severe financial
hardship to the Participant resulting from (1) an illness or accident of
the Participant, or the Participant’s spouse, beneficiary, or dependent (as
defined in section 152 of the Code without reference to section 152(b)(1), 


 

















 


(b)(2), and (d)(1)(B) of the Code), (2) the loss of property
due to casualty, or (3) similar extraordinary and unforeseeable
circumstances beyond the control of a Participant.  Whether an Unforeseeable Emergency has
occurred shall be determined by the Board or the Administrator based on the
relevant facts and circumstances of each case.


 


2.                                       Participant Elections.


 


(a)           An
election to participate for a calendar year in this Plan shall be made by December 31st
of the immediately preceding calendar year; provided, however, that if an
employee becomes eligible to participate in this Plan during a calendar year
beginning after December 31, 2004 and did not participate in the Prior
Plan, then the election deadline for such year shall be extended until thirty
days after such employee becomes so eligible.


 


(b)           Compensation
earned prior to the Effective Date shall be deferred in accordance with the
deferral elections made by each Participant under the Prior Plan prior to the
Effective Date and shall be credited under this Plan to a Rollover Account (as
defined in paragraph 4 below).


 


(c)           Each
election to participate in the Plan for a calendar year shall authorize the
Participant’s Employer to reduce the Participant’s Compensation by a whole
percentage as determined by the Board or the Administrator, and such election
shall apply to Compensation payable after both (1) the effective date of
such election, and (2) the date on which the Participant’s Compensation is
no longer reduced by reason of contributions to his or her elective account
under the Profit Sharing Plan on account of IRS Limits, determined with regard
to changes made in the 401(k) election of the Participant under the Profit
Sharing Plan.


 


(i)                                     Notwithstanding any provision in
paragraph (c) to the contrary, an increase in amounts deferred under this
Plan that result directly from a 


 

















 


change to IRS Limits applicable to the Profit Sharing Plan does not
constitute a deferral election under this Plan, provided in operation
the result does not otherwise change the time or form of a payment under this
Plan, provided, further, in operation the increase in amounts
deferred under this Plan that results directly from a change to IRS Limits does
not exceed the change in the amounts deferred under the Profit Sharing Plan.


 


(ii)                                  Notwithstanding any provision in
paragraph (c) to the contrary, the following action or inaction will not
constitute a deferral election under this Plan even if in operation such action
or inaction directly results in an increase in amounts deferred under this
Plan, provided that such action or inaction does not otherwise affect
the time or form of payment under this Plan:


 


(1)                                  the Participant’s action or inaction
under the Profit Sharing Plan with respect to elective deferrals subject to IRS
Limits, including an adjustment to a deferral election under the Profit Sharing
Plan, provided that for any given taxable year, the Participant’s action
or inaction does not result in an increase in the amounts deferred under all
nonqualified deferred compensation plans (other than amounts described in
paragraph (2) below) in excess of the limit with respect to elective
deferrals under sections 402(g)(1)(A), (B), and (C) of the Code as in
effect for the taxable year in which such action or inaction occurs; and


 


(2)                                  the Participant’s action or inaction
under the Profit Sharing Plan with respect to elective deferrals subject to IRS
Limits, that affects the amounts that are credited under one or more
nonqualified deferred compensation plans as matching amounts on such elective
deferrals, provided that the total of such matching contributions, as applicable,
never exceeds 100% of the matching amounts that would have been provided under
the Profit Sharing Plan absent any IRS Limits.


 


(d)           Each
Participant shall be entitled to select a date for distribution, but not later
than Separation from Service, for the amount to be deferred (and any earnings
thereon) for a calendar year not later than the election deadline described in
paragraph 2(a) above.


 


3.             Accounts.  Each calendar year, there shall be
established on the books of the Company and of each Employer an Account in the
name and on behalf of each Participant who is an employee of the Company or
such Employer, as the case may be, and who has an amount 


 

















 


credited
to such Account during such calendar year in accordance with the following
sentence. Each calendar year Account shall be credited with the amounts by
which the Participant’s Compensation is reduced for such calendar year pursuant
to his or her election under paragraph 2 of this Plan as of the time such
Compensation would have been paid to the Participant but for such election.


 


4.             Rollover
Account.  A Rollover Account shall be
established on the books and records of the Company and of each Employer with
respect to transferred amounts from the Prior Plan, which shall consist of all
amounts vested after December 31, 2004. 
An individual need not elect to defer amounts under this Plan in order
to have a Rollover Account.  A Rollover
Account shall be treated as a form of “calendar year account” except as
otherwise determined by the Administrator. 
A Participant may change the time of distribution for deferrals credited
to the Rollover Account by election filed before January 1, 2009 (or such
later date as may be allowed by the IRS in regulations, rulings or
notices).  A changed distribution
election described in the immediately preceding sentence cannot change payment
elections for amounts the Participant would otherwise receive in 2008, nor can
it cause payments to be made in 2008.


 


5.             Earnings
on Accounts.  For bookkeeping
purposes only, and pursuant to rules established by the Administrator in
its sole discretion, each Participant may from time to time request that the
balances in his Accounts established pursuant to paragraphs 3 and 4 of this
Plan be considered to be invested in certain designated publicly traded mutual
funds or other investments selected by the Administrator.  Each such request made by the Participant
shall be effective until a new request is filed by him with the Administrator.  If the Participant does not make such a
request, the balances credited to his Accounts shall be deemed to be invested
in any fund designated by the Administrator in its sole discretion.  Although the Company or an 


 

















 


Employer
might actually invest assets of the Company or such Employer according to the
Participant’s request, it is not required to do so nor to even set aside an
amount equal to such balances.  The
balances in the Participant’s Accounts shall be increased by gains or decreased
by the losses and expenses (including sales commissions and all fund charges)
which are or would be realized or paid by the Company or Employer as if assets
of the Company or Employer in an amount equal to such balances were actually
invested in the funds requested by the Participant.


 


6.             Vesting.  Amounts credited to the Accounts of a
Participant pursuant to the terms of this Plan shall be fully vested and not
subject to forfeiture for any reason.


 


7.             Distributions.


 


(a)           Non-Specified
Employees.  In the event a
Participant is not a “Specified Employee” (defined below), the distribution of
each calendar year Account and Rollover Account (if any) shall be made as
elected by such Participant.


 


(b)           Specified
Employees.  In the event a
Participant is a Specified Employee, the distribution of each calendar year
Account and Rollover Account (if any) shall be made:  (i) for in service distributions, on the
date elected by such Participant; and (ii) for distributions on account of
“Separation from Service” (defined below), in the form elected beginning six
months after the date on which the Participant incurs a Separation from Service
from the Company.


 


(c)           For
purposes of this Plan, the term “Specified Employee” means any Participant who,
at the time of his or her Separation from Service, is a “key employee” (within
the meaning of section 416(i) of the Code) of an Employer whose stock is
publicly traded on an established securities market or otherwise.  The determination as to whether a Participant
is a Specified Employee shall be determined in a manner consistent with the
applicable Treasury Regulations 


 

















 


under
section 409A.  For purposes of applying
the principles contained in those Treasury Regulations, the “specified employee
identification date” shall be December 31 and the “specified employee
effective date” shall be the first day of the fourth month following the
specified employee identification date.


 


(d)           For
purposes of this Plan, the term “Separation from Service” means the earliest
date on which a Participant has incurred a “separation from service” (within
the meaning of section 409A(a)(2) of the Code) with an Employer.  For purposes of the foregoing:


 


(i)                                     an Employee shall be considered to have
incurred a separation from service with the Employer if the Employee dies,
retires, or otherwise has a termination of employment.  Except as otherwise provided in the Treasury
Regulations, the Employee’s employment relationship shall be treated as
continuing intact while the individual is on (1) military leave, (2) sick
leave, or (3) other bona fide leave of absence if the period of such leave
does not exceed six months or, if longer, so long as the individual retains a
right to reemployment with the Employer under an applicable statute or
contract.  For purposes of this Section 7(d)(i),
a leave of absence constitutes a “bona fide leave of absence” only if there is
a reasonable expectation that the Employee will return to perform services for
the Employer; and


 


(ii)                                  an Employee shall not be deemed to have
incurred a termination of employment unless the facts and circumstances
indicate that the Employee and the Employer reasonably anticipated that (1) no
further services would be performed after a certain date, or (2) that the
level of bona fide services the Employee would perform after such date would
permanently decrease to a level equal to twenty percent (20%) or less of the
average level of bona fide services performed over the immediately preceding
thirty-six month period (or the full period of services to the Employer if the
Employee has been providing services to the Service Recipient for less than
thirty-six months).  An Employee will be
presumed not to have incurred a separation from service where the level of bona
fide services performed continues at a level that is fifty percent (50%) or more
of the average level of services performed by the Employee during the
immediately preceding thirty-six month period. 
No presumption shall apply to a decrease in the level of bona fide
services performed to a level that is more than twenty percent (20%) and less
than fifty percent (50%) of the average level of bona fide services performed
during the immediately preceding thirty-six month period.


 
















(e)           Each
distribution shall be based on the balance of such Account as of the last day
of the month immediately preceding the distribution and shall be made in a
single lump-sum or installment payments as the Participant may elect.  The distribution of a Participants Account in
installments shall be made in not more than 3 consecutive annual
installments.  Notwithstanding any
election made by the Participant, distributions made while the Participant
remains in service shall be made in a single lump sum.


 


(f)            If
a Participant does not timely elect a date for distribution under Section 2
of this Plan, he shall be deemed to have elected to receive a distribution
sixty days after the date such Participant incurs a Separation from Service, provided,
however, in the event such Participant is a Specified Employee, he shall be deemed to have elected to receive a
distribution six months after the date such Participant incurs a Separation
from Service.


 


8.             Section 409A
Compliance Rules.  The Administrator
shall operate and administer the Plan, for purposes of applying the provisions
of section 409A of the Code thereto, by adhering to the following rules:


 


(a)           Separate
Payments.  Each separately identified
amount to which the Participant is entitled under the Plan shall be treated as
a “separate payment”;


 


(b)           Short-Term
Deferral Exception.  Unless otherwise
required to comply with section 409A of the Code, a payment shall not be
treated as a “deferral of compensation” (as such term is described in section
1.409A-1(b) of the Treasury Regulations) if such payment is required to be
paid no later than within two and one-half months after the end of the taxable
year of the Employee or Employer in which the payment is no longer subject to a
“substantial risk of forfeiture” (as such term is described in section 1.409A-1(d) of
the Treasury Regulations); and


 

















 


(c)           Separation
Pay Exception.  Unless otherwise
required to comply with section 409A of the Code, a payment shall not be
treated as a “deferral of compensation” (defined above) if such payment
satisfies the following requirements:


 


(i)            the payment is being paid or provided due to the
Separation from Service of the Employee, provided, however, the
Separation from Service was due to “involuntary termination” of the Employee by
the Employer or a resignation by the Employee for “good reason” as such terms
are defined under the Treasury Regulations issued under section 409A of the
Code;


 


(ii)           the payment being paid or provided does not exceed two
times the lesser of:


 


(1)           the Employee’s annualized Compensation from the
Employer for the calendar year in which the involuntary termination of the
Employee’s employment occurs; and


 


(2)           the Compensation Limit for the calendar year in which
the involuntary termination of the Employee’s employment occurs; and


 


(iii)          the payment is required under the Plan to be paid no
later than the last day of the second calendar year following the calendar year
in which the involuntary termination of the Employee’s employment occurs.


 


9.             Distribution
for Unforeseeable Emergency.  A
Participant may request a distribution of part or all of the balances of his
Account because of the occurrence of an “Unforeseeable Emergency” by submitting
a written request to the Administrator and accompanying such request with
evidence of the Unforeseeable Emergency. 
The Administrator shall review the request and accompanying evidence and
determine, in its sole discretion, whether such distribution is justified.  As a condition of and part of such request,
the Participant shall provide the following written representation to the
Administrator:


 

















 


“The Participant
understands and acknowledges that a distribution on account of an unforeseeable
emergency may not be made to the extent that such emergency is or may be
relieved:


 


(i)                                     through reimbursement or compensation
from insurance available to the Participant,


 


(ii)                                  by liquidation of the Participant’s
assets, to the extent the liquidation of such assets would not cause severe
financial hardship, or


 


(iii)                               by the cessation of deferrals under the
Plan.”


 


The
Administrator shall be entitled to request such additional information as may
be reasonably required to determine whether an Unforeseeable Emergency exists
and the amount of the hardship and to establish additional conditions precedent
to the review or granting of a request for a withdrawal.


 


If the
Administrator determines that an Unforeseeable Emergency exists, the
Administrator shall authorize the immediate distribution of an amount required
to meet the financial need created by such hardship, including any taxes
payable on account of such withdrawal.


 


10.           Effect
of Change of Control.  The
Administrator may elect to terminate this Plan and distribute all Accounts to
Participants, provided, however, that this Section 10 will only
apply to a distribution under this Plan if all agreements, methods, programs,
and other arrangements sponsored by the Company and each Employer immediately
after the time of the Change of Control event with respect to which deferrals
of compensation are treated as having been deferred under a single plan under
section 1.409A-1(c)(2) are terminated and liquidated with respect to each
Participant that experienced the Change of Control event, so that under the
terms of the termination and liquidation all such Participants are required to
receive all amounts 


 

















 


of
compensation deferred under the terminated agreements, methods, programs, and
other arrangements within twelve months of the date the Company and each
Employer irrevocably acts to terminate and liquidate the agreements, methods,
programs, and other arrangements.


 


11.           Changes
to Date of Distribution.  The
Administrator may allow a Participant to elect to change the date of payment
for any calendar year Account or Rollover Account, provided that the election is made at
least twelve months before the date the calendar year Account or
Rollover Account was
scheduled to be distributed, and defers the payment of the calendar year
Account or Rollover Account for at least five years from the originally scheduled distribution
date.


 


12.           Delay
for Payment of Distribution.  The
payment of benefits under the Plan may be delayed to the extent permitted
without violating the requirements of section 409A of the Code or the
Treasury Regulations thereunder, as follows, provided that the Administrator
treats all payments to similarly situated Participants on a reasonably
consistent basis:


 


(a)           Payments
Subject to Code Section 162(m). 
A payment shall be delayed if the Employer reasonably anticipates that
if the payment was made as scheduled, the Employer’s deduction with respect to
such payment would not be permitted due to the application of section 162(m) of
the Code.  In such an event, the payment
shall be made in the first taxable year of the Employer in which the Employer
reasonably anticipates, or should reasonably anticipate, that if the payment
were made in that year, the deduction of such payment would not be barred by
the application of section 162(m) of the Code.  For example, if the payment to a Participant will
cause their compensation in the year of distribution to exceed $1,000,000, the
distribution may be delayed until the first taxable year in which the tax
deduction would not be limited.  In 


 

















 


the
event this provision is subsequently removed from the Plan, the removal must be
effective only with respect to amounts deferred after the Plan is amended to
remove the provision;


 


(b)           Payments
That Would Violate Federal Securities Laws or Other Applicable Law.  A payment may be delayed if the Company or an
Employer reasonably anticipates that the maker of the payment would violate a
Federal securities law or other applicable law. 
In such an event, payment shall be made at the earliest date at which
the Company or an Employer reasonably anticipates that the making of the
payment would not cause such violation; or


 


(c)           Other
Events or Conditions.  The Company
and each Employer shall be entitled to add to the list of events that will
result in a delay of payments under this paragraph to the extent allowed under guidance
issued by the Treasury Department or Internal Revenue Service under section
409A of the Code.


 


13.           Beneficiaries.  If a Participant shall die while any amounts
remain credited to his Accounts established on his behalf pursuant to
paragraphs 3 and 4 of this Plan, such amounts shall be paid as provided in
paragraph 7 of this Plan to the beneficiary or beneficiaries as the Participant
may, from time to time, designate in writing delivered to the
Administrator.  A Participant may revoke
or change his beneficiary designation at any time in writing delivered to the
Administrator.  If a Participant does not
designate a beneficiary under this Plan, or if no designated beneficiary
survives the Participant, the balances of his Accounts shall be paid to the person
or persons entitled to his accounts under the Profit Sharing Plan (or who would
be so entitled if there were then an amount remaining unpaid under the Profit
Sharing Plan).


 


14.           Amendment
and Modification.  The Board may
amend or modify the Plan in its sole discretion.  The Administrator may amend the Plan, or any
ancillary form or document 


 

















 


related
to the Plan to facilitate its administration or to comply or make the Plan
consistent with applicable law, including ERISA and the Code.


 


Any amendment or modification that reduces or
otherwise adversely affects the rights of Participants in respect of amounts
credited to their Accounts as of the date of such amendment or termination
shall be effective only with the affected Participant’s written consent.  Notwithstanding the foregoing, consent shall
not be required if the Board or the Administrator, as the case may be,
reasonably determines that an amendment is necessary to avoid Federal income
taxation on Accounts prior to payment or to maintain the Plan’s status as an
unfunded “top hat” plan under ERISA.


 


15.           Termination
of Plan. The Board shall have the right to terminate the Plan at any
time.  Plan termination shall not reduce
the amount payable to Participants.  Upon
Plan termination:


 


(a)                                  no additional deferrals shall be credited
to Accounts,


 


(b)                                 amounts then credited to Accounts shall
continue to be increased and decreased for the earnings and losses under the
accounts as set forth in paragraph 5, and


 


(c)                                  Plan Accounts shall be paid in accordance
with the Participants’ elections.


 


Notwithstanding the above, the Company may elect to
make a lump sum payment to all persons entitled to Plan benefits following Plan
termination.  The amount to be paid shall
equal the balances of the payee’s Account(s) as of the last day of the
month immediately preceding the distribution. 
Payment of Plan benefits can be accelerated under this paragraph 15 only
if all of the conditions are satisfied:


 


(a)                                  all arrangements of the same type (as
determined under section 409A of the Code) as the Plan are also terminated with
respect to all employees who participate in the Plan,


 

















 


(b)                                 no payments other than those otherwise
payable under the terms of the Plan absent a termination of the Plan are made
within twelve months of the Board vote to terminate the Plan,


 


(c)                                  all payments on account of Plan
termination under this paragraph 15 are made within twenty-four months of the
Board vote to terminate the Plan, and


 


(d)                                 the Company or an Employer does not adopt
a new arrangement that would be aggregated with the Plan under section 409A at
any time during the five years following the Board vote to terminate the Plan.


 


16.           Section 409A.
The Plan is intended to comply and shall be interpreted and construed in a
manner consistent with the provisions of section 409A of the Code.  Any Plan provision that would cause amounts
allocated to an Account to be subject to Federal income tax prior to payment
shall be void as of the Effective Date without the necessity of further action
by the Board or the Administrator.


 


There shall be no acceleration of the time or schedule
of any payment under the Plan except as permitted under section 409A.  Distributions shall not be made to an
employee while employed by the Company except as provided under a timely and
properly filed election (in accordance with paragraph 7), an Unforeseeable
Emergency (but only to the extent permitted under paragraph 8), a Change of
Control (but only to the extent allowed under paragraph 10), the Plan’s
termination (but only to the extent permitted under paragraph 15).


 


There shall be no subsequent deferral of the time or
schedule of any payment under the Plan except as allowed under paragraphs 11
and 12.


 


All references to section 409A of the Code in the Plan
shall also refer to Notice 2005-1 (as applicable to periods prior to January 1,
2008) and the final Treasury Regulations (as applicable to periods after January 1,
2008).  The provisions of the Plan shall
not apply to the Prior Plan or constitute a material modification of the Prior
Plan.


 

















 


17.           Application
of ERISA.  The Plan is intended to be
an unfunded deferred compensation arrangement for the benefit of a select group
of management and highly compensated employees of the Company and its
Affiliates, within the meaning of ERISA. 
As such, the Plan is intended to be a “top hat” plan exempt from the
provisions of Parts 2, 3, and 4 of Title I of ERISA.  Any obligation of the Company or the
Employers to pay benefits hereunder shall be deemed to be an unsecured promise,
and any right of a Participant or beneficiary to enforce such obligation shall
be solely as a general creditor of the Company. 
Any payments hereunder shall be made out of the general assets of the
Company and the Employers.


 


18.           Administration.
The Administrator shall be charged with the administration of this Plan.  The Administrator shall have discretionary
authority to take any and all actions it deems necessary, appropriate to
administer the Plan, including the following:


 


(a)                                  interpret Plan provisions, including,
without limitation, correcting any defect, supplying any omission or
reconciling any inconsistency in the Plan,


 


(b)                                 determine all questions arising under the
Plan including, without limitation, all questions concerning administration,
eligibility, benefit amounts, timing of payments and the interpretation of any
form or other document related to the Plan,


 


(c)                                  prescribe, amend and rescind rules and
administrative procedures relating to the operation of the Plan, and


 


(d)                                 engage the services of independent
professionals and administrative personnel as it deems necessary to administer
the Plan.


 


Any determination or interpretation by the
Administrator shall be binding on all parties and need not be uniform as to all
interested parties.


 


19.           Nonassignment
of Benefits. It shall be a condition of the payment of benefits under this
Plan that neither such benefits nor any portion thereof shall be assigned,
alienated or transferred to any person voluntarily or by operation of any law,
including any assignment, 


 

















 


division
or awarding of property under state domestic relations law (including community
property law). If any person shall endeavor or purport to make any such
assignment, alienation or transfer, the amount otherwise provided hereunder
which is the subject of such assignment, alienation or transfer shall cease to
be payable to any person.


 


20.           No
Guaranty of Employment. Nothing contained in this Plan shall be construed
as a contract of employment between the Company or any Employer and any
employee or as conferring a right on any employee to be contained in the
employment of the Company or any Employer.


 


21.           FICA
Taxes.  For each calendar year in
which a Participant’s compensation is reduced pursuant to this Plan, the
Company or his Employer shall withhold from the Participant’s compensation the
taxes imposed upon the Participant pursuant to section 3121 of the Code in
respect of the amount by which the Participant’s Compensation is reduced.


 


22.           Successors
and Assigns. The provisions of this Plan shall bind and inure to the
benefit of the Company and each Employer and their successors and assigns, as
well as each Participant and his beneficiaries and successors.


 

















 


IN WITNESS WHEREOF, Tootsie Roll Industries, Inc.
has caused this instrument to be executed in its name and its corporate seal to
be hereunder affixed on this       day of
                ,
2008.


 


	
   

  	
  TOOTSIE ROLL INDUSTRIES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  (Corporate Seal)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title: