Exhibit 10.9


 


Agrilink Foods, Inc.


 


 


Excess Benefit Retirement Plan


 


 


December 2000


 

















 


AGRILINK FOODS, INC.


 


EXCESS BENEFIT RETIREMENT PLAN


 


PREAMBLE


 


The principal objective of
the Agrilink Foods Excess Benefit Retirement Plan is to ensure the payment of a
competitive level of retirement income in order to attract, retain and motivate
selected employees. The plan is designed to protect the benefit which certain employees
would have accrued under the Agrilink Foods Master Salaried Retirement Plan except
for changes in that plan’s benefit accrual formula required in order to comply
with requirements of the Internal Revenue Code of 1986 and for the limit on compensation
as allowable under Section 401(a) (17) of the Internal Revenue Code. This plan
was effective first on January 1, 1992. This restatement is effective December 1,
2000.


 

















 


SECTION 1


 


DEFINITIONS


 


1.1                               “Basic Plan”
means the Agrilink Foods Master Salaried Retirement Plan.


 


1.2                               “Committee” means
the Pension Committee of the Company, which has been  given authority by the Board
of Directors to administer this Plan.  


 


1.3                               “Company” means
Agrilink Foods, Inc.


 


1.4                               “Participant” means
an employee of the Company having a benefit under the  Plan in accordance
with Section III herein, with the exception of any  participant having a benefit in
the Company’s Supplemental Executive  Retirement Plan, and further
with the exception of individuals who became  employees of the Company on September
24, 1998 as a result of the Stock  Purchase Agreement by and
between Agrilink Foods, Inc. and Dean Foods, Inc.  An employee who became an
employee of the Company as a result of the Stock  Purchase Agreement by and
between Agrilink Foods, Inc. and Dean Foods, Inc.  will be considered a participant
under the Plan provided the employee is  actively employed with the
company on July 1, 2000 and has a benefit under  the Plan in accordance with Section
III herein, and further provided that  the participant does not have
a benefit in the Company’s Supplemental  Executive Retriement Plan.


 


1.5                               “Plan” means the
Company’s Excess Benefit Retirement Plan.


 


1.6                               “Straight Life Annuity”
means retirement income in the form of monthly  payments for life with no
Surviving spouse’s benefit.


 


1.7                               “Surviving Spouse
Annuity” means retirement income in the form of monthly  payments for
life, with 50% of the participant’s benefit payable in monthly  payments to the surviving
spouse, as defined in the Basic Plan, for the  rest of his life. Reductions,
if any, to the participants monthly benefit  payment under this option are
determined in accordance with Section 5.5  (a), Normal Form of Payment,
of the Basic Plan.


 


1.8                               “Termination”
means the termination of a participant’s employment with the  Company.


 


1.9                               The masculine gender,
where appearing in the Plan, will be deemed to  include the feminine gender, and
the singular may include plural, unless  the context clearly indicates
the contrary.


 

















 


SECTION II


 


ELIGIBILITY FOR BENEFITS


 


2.1                               Each participant
is eligible to receive a benefit under this Plan effective  as of the date
the participant is eligible to receive a benefit under the  Basic Plan, in
accordance with the terms of the Basic Plan as now in effect  or as hereafter amended.
 Such date is referred to herein as the  participant’s
actual termination date.


 


2.2                               Anything herein
to the contrary notwithstanding, if a participant who is  receiving, or
may be entitled to receive, a benefit hereunder engages in  competition with
the Company (without prior authorization given by the  Committee in writing)
or is discharged for cause, or performs acts of  willful malfeasance or gross
negligence in a matter of material importance  to the Company, payments thereafter
payable hereunder to such participant  or such participant’s surviving
spouse will, at the discretion of the  Committee, be forfeited and
the Company will have no further obligation  hereunder to such participant
or spouse. For purposes of this Section 2.2,  the term “discharged for
cause” shall mean termination by the Company as a  result of (a) the conviction of
the participant by a court of competent  jurisdiction of a crime which
constitutes a felony under any state or  federal law, (b) an act by
the participant which in the opinion of the  Board of Directors of the
Company constitutes a theft of the Company’s  property,  or (c) the insubordination,  gross negligence or willful  misconduct of
the participant (such finding having been initially made by  the Board of Directors
of the Company). “Competition with the Company”  shall occur,  if, before or after termination of employment,
 the  participant, directly or indirectly,
comes to own, manage, operate,  control, be employed by or participate
in the ownership, management,  operation or control of, or
be connected in any other manner with, any  business which, in the
judgment of the Board of Directors of the Company,  is in substantial competition
with the Company (unless the participant has  first obtained the Board’s
prior written consent).


 

















 


SECTION III


 


AMOUNT AND FORM OF RETIREMENT BENEFIT


 


3.1                               For any
participant who was actively employed by the Company on or prior to  July 1, 1981 in
a salaried exempt or non-exempt position and who is  eligible to receive a
retirement benefit determined under Career Average  Benefit Formula in the Basic
Plan, the participant’s retirement benefit  payable hereunder shall be
determined using the formulas under the Basic  Plan and shall equal the excess
of (a) over (b).


 


(a)                    The participant’s
retirement benefit determined using the benefit  formulas and eligibility requirements
in effect immediately prior to  the adoption of the Fourth Amendment
to the Basic Plan as annexed  hereto as Exhibit A and compensation
defined as Basic Earnings  excluding overtime premium
and bonuses received by the participant  during the calendar year
without regard to the compensation limits  under Sections 401(a)(17) of
the Internal Revenue Code.


 


(b)                   The participant’s
retirement benefit determined under the greater of  either the Final Average Pay
Formula or the Career Average Benefit  Formula in effect at the participant’s
actual retirement date, as  defined in the Basic Plan.


 


3.2                               For any participant
who is not eligible to receive a retirement benefit  determined under Career Average
Benefit Formula in the Basic Plan, the  participant’s retirement benefit
payable hereunder shall be determined  using the formulas under the
Basic Plan and shall equal the excess of (a)  over (b).


 


(a)                    The participant’s
retirement benefit determined using the eligibility  requirements, benefit
formulas and earnings definition under the Basic  Plan without regard to the compensation
limits under Sections  401(a)(17) of the Internal Revenue Code.


 


(b)                   The participant’s
actual retirement benefit determined under the Basic Plan.


 


For
the purposes of this section, the retirement benefit shall be expressed  as a Normal Form
of Payment as defined in the Basic Plan, determined on the  first day of the
calendar month coincident with or next following the


 

















 


participant’s
actual retirement date, regardless of the actual form of payment for such
benefits.


 


3.3                               The retirement benefit
determined under this Plan shall be payable as a  Straight-Life Annuity or a
Surviving Spouse Annuity and shall commence on  the date the participant’s retirement
benefits under the Basic Plan  commence, provided, however
that the company may accelerate payment of such  benefits if the annual amount
of the annuity is $5,000 or less. If the  single sum equivalent of the
participant’s retirement benefit on the date  of termination from the
company is less than $5,000, or if the single sum  equivalent of the surviving spouse’s
benefit as described in Section IV is  less than $5,000, such
benefit shall be paid immediately upon termination  or death of the participant in
the form of a single sum. The single sum  equivalent will be calculated
using the same actuarial factors and  assumptions as used for the
Basic Plan.


 


3.4                               The annual
benefit payable hereunder at an Early Retirement Date as defined  in the Basic
Plan will be reduced using the same factors and assumptions in  effect at the
participant’s actual retirement date, as defined in the Basic  Plan.  


 


SECTION IV


 


DEATH BENEFITS PAYABLE


 


4.1                               If a participant
eligible to commence benefits under the Basic Plan should  die before commencing
benefits hereunder, the participant’s surviving  spouse shall receive a
benefit determined in accordance with Section III,  as if the participant had
retired, had elected a Surviving Spouse Annuity,  and commenced receiving a
benefit on the first of the month coincident with  or next following the date of
his death.


 


SECTION V


 


DISABILTY BENEFITS PAYABLE


 


5.1                               In the event the
Committee determines that a participant becomes eligible  for a disability
retirement benefit under the Basic Plan, the participant’s  actual retirement
date shall be the date upon which the participant  commences to receive benefits
under the Basic Plan.  


 

















 


5.2                               The annual
disability benefit will equal the retirement benefit that would  be payable under
Section III of this Plan,  determined as of
the  participant’s actual retirement date.


 


5.3                               The Committee may
require, no more frequently than once in any calendar  year, that a
disabled participant submit medical evidence of disability  satisfactory to
the Committee. The Committee will have sole discretion to  discontinue eligibility
for a disability benefit based on a consideration  of such evidence or lack
thereof.


 


SECTION VI


 


MISCELLANEOUS


 


6.1                               The committee
may, in its sole discretion, terminate, suspend or amend this  Plan at any time
or from time to time, in whole or in part. No termination,  suspension, or
amendment of the Plan will affect a retired participant’s  right or the
right of a surviving spouse to continue to receive a benefit  in accordance with
this Plan as in effect on the date such participant  commenced to receive a benefit
under this Plan.  In addition,  no  termination, suspension, or amendment
of the Plan will, without the  affected participant’s consent,
or the consent of such participant’s  surviving spouse, reduce the
benefit hereunder of a participant who has  completed five (5) years of
service with the Company. The provisions of  this Section 6.1 shall be subordinate
to the provisions of Section 2.2  concerning forfeiture of
benefits.


 


6.2                               Nothing contained
herein will confer upon any participant the right to be  retained in the
service of the Company to discharge or otherwise deal with  participants
without regard to the existence of this Plan.  


 


6.3                               This Plan is unfunded,
and the Company will make Plan benefit payments  solely on a current
disbursement basis.


 


6.4                               To the maximum
extent permitted by law, no benefit under this Plan shall be  assignable or
subject to any manner to alienation, sale, transfer, claims  of creditors, pledge,
attachment or encumbrances of any kind.  


 


6.5                               The Committee may
adopt rules and regulations to assist it in the  administration of the Plan.


 

















 


6.6                               Each participant
may receive a copy of this Plan and the Committee will  make available
for inspection by any participant a copy of the rules and  regulations used
by the Committee in administering the Plan.  


 


6.7                               This Plan is
established under and will be construed according to the laws  of the State of
New York.


 


IN
WITNESS WHEREOF, the foregoing Plan having been duly adopted by the  Board of
Directors, Agrilink Foods, Inc. has caused this instrument to be  executed in its
name and its corporate seal to be affixed this 23rd  day of August, 2000.


 


 


	
   

  	
   

  	
      AGRILINK
  FOODS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lois Warlick-Jarvie