Exhibit 10.5



 





Exhibit 10.5




LANCE, INC.

COMPENSATION DEFERRAL AND BENEFIT RESTORATION PLAN

(as amended and restated effective January 1, 2005)




1. Name:




     This plan shall be known as the “Lance, Inc. Compensation Deferral and Benefit Restoration
Plan” (the “Plan”).



2. Purpose and Intent:




     Lance, Inc. (the “Corporation”) established the Plan for the purposes of (i) providing certain
employees with the opportunity to defer payment of a portion of base salary and certain annual
incentives and (ii) providing benefits to certain employees whose benefits under the Savings Plan
are adversely affected by the limitations of Sections 401(a)(17) and 415 of the Internal Revenue
Code. The Corporation is hereby amending and restating the Plan effective as of January 1, 2005
(the “Restatement Date”) to reflect certain design changes in order for the Plan to comply with the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and to otherwise
meet current needs. It is the intent of the Corporation that amounts deferred under the Plan shall
not be taxable to the employee for income tax purposes until the time actually received by the
employee. The provisions of the Plan shall be construed and interpreted to effectuate that intent.



3. Definitions:




     For purposes of the Plan, the following terms have the following meanings:




     “Account” means the account established and maintained on the books of
the Corporation to record a Participant’s interest under the Plan attributable to
amounts credited to the Participant pursuant to the Plan.




     “Annual Incentive Award” means, with respect to a Participant, any
annual incentive award payable to the Participant pursuant to any incentive
compensation plan of a Participating Employer approved for purposes of this Plan by
the Plan Administrator.




     “Beneficiary” means any person or trust designated by a Participant in
accordance with procedures adopted by the Plan Administrator to receive the
Participant’s Account in the event of the Participant’s death. If the Participant
does not designate a Beneficiary, the Participant’s Beneficiary is his or her
spouse, or if not then living, his or her estate.




     “CEO” means the Chief Executive Officer of the Corporation.



 









 






     “Class Year Deferrals” means, for each Plan Year beginning on or after
January 1, 2006, the deferrals under Paragraph 5(b) of a Participant’s base salary
for the Plan Year plus the deferral of any portion of the Participant’s Annual
Incentive Award earned for services rendered during the Plan Year, including any
related adjustments for deemed investments in accordance with Paragraph 5(e) below.




     “Compensation Committee” means the committee of individuals who are
serving from time to time as the Compensation Committee of the Board of Directors of
the Corporation.




     “Eligible Employee” means an Employee designated as an Eligible
Employee pursuant to Paragraph 5(a).




     “Employee” means an individual employed by a Participating Employer.




     “Participant” means an Eligible Employee who has elected to defer
compensation under the Plan as provided in Paragraph 5(b) or has received
restoration credits to his Account pursuant to Paragraph 5(c).




     “Participating Employer” means the Corporation and any other
incorporated or unincorporated trade or business that adopts the Plan.




     “Payment Sub-Account” means a portion of a Participant’s Account
established by the Plan Administrator to facilitate the administration of
distributions under the Plan, including without limitation Payment Sub-Accounts
representing (i) each separate set of Class Year Deferrals, (ii) each separate set
of deferrals covered by a “Life Event” election made prior to the Restatement Date
and (iii) restoration credits under Paragraph 5(c) below.




     “Plan Administrator” means the person or entity designated as the “Plan
Administrator” by the Compensation Committee.




     “Plan Year” means the calendar year.




     “Savings Plan” means the defined contribution profit-sharing plan
maintained by the Company known as the “Lance, Inc. Profit-Sharing and 401(k)
Retirement Savings Plan,” as amended from time to time.



4. Administration:




     The Plan Administrator shall be responsible for administering the Plan. The Plan Administrator
shall have all of the powers necessary to enable it to properly carry out its duties under the
Plan. Not in limitation of the foregoing, the Plan Administrator shall have the power to construe
and interpret the Plan and to determine all questions that arise thereunder. The Plan



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Administrator shall have such other and further specified duties, powers, authority and discretion
as are elsewhere in the Plan either expressly or by necessary implication conferred upon it. The
Plan Administrator may appoint any agents that it deems necessary for the effective performance of
its duties, and may delegate to those agents those powers and duties that the Plan Administrator
deems expedient or appropriate that are not inconsistent with the intent of the Plan. All decisions
of the CEO, the Plan Administrator and the Compensation Committee upon all matters within the scope
of his or its authority shall be made in the CEO’s, Plan Administrator’s or Compensation
Committee’s sole discretion and shall be final and conclusive on all persons, except to the extent
otherwise provided by law.



5. Eligibility, Deferrals and Account Adjustments:




     (a) Eligibility. For each Plan Year, (i) the Compensation Committee shall designate
which Employees who are “named executive officers” in the Corporation’s annual proxy statement
shall be Eligible Employees for the Plan Year, and (ii) the CEO shall designate which Employees
other than the “named executive officers” shall be Eligible Employees for the Plan Year;
provided, however, that the determination of Eligible Employees shall be made
consistent with the requirement that the Plan be a “top hat” plan for purposes of the Employee
Retirement Income Security Act of 1974, as amended. An Employee may be designated as an Eligible
Employee separately with respect to deferrals pursuant to Paragraph 5(b) or restoration credits to
his Account pursuant to Paragraph 5(c) for a Plan Year, or the Employee may be designated as an
Eligible Employee with respect to both deferrals and restoration credits for the Plan Year. An
Employee designated as an Eligible Employee with respect to one Plan Year need not be designated as
an Eligible Employee for any subsequent Plan Year.



     (b) Elections to Defer. A person who is an Eligible Employee for a Plan Year may elect
to defer from one percent (1%) to forty percent (40%), in one percent (1%) increments, of the
Eligible Employee’s base salary for the Plan Year. In addition, the Eligible Employee may elect to
defer from ten percent (10%) to ninety percent (90%), in ten percent (10%) increments, of the
Eligible Employee’s Annual Incentive Award for the Plan Year. Elections to defer base salary or
Annual Incentive Awards for a Plan Year must be made before the first day of the Plan Year,
provided that a newly hired Eligible Employee who first becomes eligible to participate in the Plan
after the start of the Plan Year may make such deferral election within thirty (30) days after
first becoming eligible to participate in the Plan as notified by the Plan Administrator. All
elections made under this Paragraph 5(b) shall be made in writing on a form, or pursuant to other
non-written procedures, as may be prescribed from time to time by the Plan Administrator and shall
be irrevocable for the Plan Year. An election to defer made by an Eligible Employee with respect to
any base salary or Annual Incentive Award payable for a Plan Year shall not automatically apply
with respect to any base salary or Annual Incentive Award payable for any subsequent Plan Year.
Amounts deferred under the Plan shall not be taken into account for purposes of determining
contributions or allocations under the Savings Plan. Notwithstanding any provision herein to the
contrary, Eligible Employees who made an election to defer Annual Incentive Awards earned for
performance during 2005 and otherwise payable in 2006 shall be given the opportunity during 2005 to
rescind or reduce such deferral election at such time and pursuant to such procedures as adopted by
the Plan Administrator for such purpose.



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     (c) Restoration Credits. An Eligible Employee’s Account shall be credited with an
amount equal to the excess, if any, of:




     (A) the aggregate amount of the “Profit-Sharing Contribution” that would have
been allocated to the Participant’s “Individual Account” under the Savings Plan for
the applicable Plan Year had (i) the limitation imposed by Section 415 of the Code
not been in effect, (ii) had the amount of the Participant’s compensation used in
calculating the amount of said Profit-Sharing Contribution so allocated to said
account under the terms of the Savings Plan not been limited by Section 401(a)(17)
of the Code, and (iii) had the Participant’s compensation for such purpose included
the amounts, if any, deferred by the Participant under this Plan, over




     (B) the amount of the “Profit-Sharing Contribution” actually allocated to the
Participant’s “Individual Account” under the Savings Plan for the applicable Plan
Year.



     (d) Establishment of Accounts. A Participating Employer shall establish and maintain
on its books an Account for each Participant employed by the Participating Employer. Each Account
shall be designated by the name of the Participant for whom established. The amount of any base
salary or Annual Incentive Award deferred by a Participant pursuant to Paragraph 5(b) shall be
credited to the Participant’s Account as of the date the base salary or Annual Incentive Award
would have otherwise been paid to the Participant. The amount of any restoration credit shall be
credited to the Participant’s Account pursuant to Paragraph 5(c) as of the date such amounts would
have been allocated to the Participant’s “Individual Account” under the Savings Plan.



     (e) Account Adjustments for Deemed Investments. The Plan Administrator shall from time
to time designate one or more investment vehicle(s) in which the Accounts of Participants shall be
deemed to be invested. The investment vehicle(s) may be designated by reference to the investments
available under other plans sponsored by a Participating Employer. Each Participant may designate
the investment vehicle(s) in which his or her Account shall be deemed to be invested according to
the procedures developed by the Plan Administrator, except as otherwise required by the terms of
the Plan. No Participating Employer shall be under an obligation to acquire or invest in any of the
deemed investment vehicle(s), and any acquisition of or investment in a deemed investment vehicle
by a Participating Employer shall be made in the name of the Participating Employer and shall
remain the sole property of the Participating Employer. The Plan Administrator shall also establish
from time to time a default investment vehicle into which a Participant’s Account shall be deemed
to be invested if the Eligible Employee fails to provide investment instructions to the Plan
Administrator. Account adjustments shall be applied pro rata among a Participant’s various Payment
Sub-Accounts.



     (f) Timing of Adjustments. The adjustments to Accounts for deemed investments as
provided in Paragraph 5(e) shall be made from time to time at such intervals as determined by the
Plan Administrator. The Plan Administrator may determine the frequency of account adjustments by
reference to the frequency of Account adjustments under another plan sponsored by a



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Participating Employer. The amount of the adjustment shall equal the amount that the Participant’s
Account would have earned (or lost) for the period since the last adjustment had the Account
actually been invested in the deemed investment vehicle(s) designated by the Participant for the
period.



     (g) Statements of Account. Each Participant shall receive an annual statement of the
Participant’s Account balance.



6. Distribution Provisions for 2005:




     (a) In-Service Withdrawals. Each Participant who is in the active service of a
Participating Employer shall be given the opportunity to elect up through December 10, 2005 (or
such other date during 2005 as selected by the Plan Administrator) (i) a distribution of the entire
balance of each of the Participant’s Payment Sub-Accounts as of such date, other than the Payment
Sub-Account comprised of restoration credits under Paragraph 5(c) above, and (ii) to cancel any
deferral election that would otherwise apply to the Annual Incentive Award earned for 2005
performance. Such distribution shall be made on or before December 31, 2005. In addition,
Participants shall be eligible during 2005 to make in-service withdrawals for unforeseeable
emergency in accordance with the provisions of Paragraph 7(g) below.



     (b) Special Payment Elections. Each Participant who has an Account balance on any
date during 2005 shall be given the opportunity during 2005 to make a payment election applicable
separately to each Payment Sub-Account maintained under the Plan for the Participant, in each case
to the extent such amounts are not otherwise withdrawn during 2005 pursuant to Paragraph 6(a)
above. The Participant may in each case elect from among the payment options set forth in
Paragraph 7(b) below, and such election shall be immediately effective. In the event a Participant
covered by this Paragraph 6(b) fails to make a payment election with respect to any Payment
Sub-Account, the payment method shall be (x) the payment method most recently elected by the
Participant under the Plan according to the records of the Plan Administrator, even if that prior
payment election had not yet become effective, or (y) in the absence of any such prior payment
election, a lump sum payment following termination of employment as set forth in Paragraph 7(b)
below. Any subsequent change to such payment election must comply with the requirements of
Paragraph 7(c) below. Payments pursuant to such election shall otherwise be subject to the
requirements of Paragraph 7 below.



7. Distribution Provisions After 2005:




     (a) Class Year Payment Elections. A Participant for a Plan Year beginning on or after
January 1, 2006 shall elect from among the available forms of payment set forth in Paragraph 7(b)
below the form of payment that shall apply to the Payment Sub-Account comprised of the Class Year
Deferrals for such Plan Year. The payment election shall be made coincident with the deferral
elections under Paragraph 5(b) above for such Plan Year. In addition, as to the Payment
Sub-Account comprised of restoration credits under Paragraph 5(c) above, the applicable payment
election for that Payment Sub-Account shall be made by the Participant either in accordance with
Paragraph 6(b) above, or for a Participant who was not



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eligible to make a payment election under Paragraph 6(b) above, within thirty (30) days after
first becoming eligible to participate in the Plan as notified by the Plan Administrator.



     (b) Available Forms of Payment. A Participant shall select from among the following
forms of payment for each Payment Sub-Account to which separate payment elections are made
available pursuant to Paragraphs 6(b) and 7(a) above. The Participant must select a single form of
payment applicable to each Payment Sub-Account (i.e., a Payment Sub-Account may not be “split”
among more than one form of payment):




	 	(i)	 	Lump Sum Payment Following Termination of
Employment. The balance of the applicable Payment Sub-Account
shall be payable in a single cash payment on or as soon as
administratively practicable after the beginning of the seventh month
following the Participant’s termination of employment with the
Participating Employers.

	 
	 	(ii)	 	Lump Sum Payment In Specified Year. The
balance of the applicable Payment Sub-Account shall be payable in a
single cash payment during the first 90 days of the calendar year
elected by the Participant; provided, however, that the
payment shall be made no later than the beginning of the seventh month
following the Participant’s termination of employment with the
Participating Employers. This payment option shall not be available
for the Payment Sub-Account comprised of restoration credits under
Paragraph 5(c) above.

	 
	 	(iii)	 	Annual Installments Following Termination of
Employment. The balance of the applicable Payment Sub-Account
shall be payable in annual installments over a period of years selected
by the Participant not to exceed ten (10) commencing on or as soon as
administratively practicable after the beginning of the seventh month
following the Participant’s termination of employment with the
Participating Employers.

	 
	 	(iv)	 	Annual Installments Commencing In Specified
Year. The balance of the applicable Payment Sub-Account shall be
payable in annual installments over a period of years selected by the
Participant not to exceed ten (10) commencing during the first 90 days
of the calendar year elected by the Participant; provided,
however, that the installments shall commence no later than on
or as soon as administratively practicable after the beginning of the
seventh month following the Participant’s termination of employment
with the Participating Employers. This payment option shall not be
available for the Payment Sub-Account comprised of restoration credits
under Paragraph 5(c) above.





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     A Participant who fails to make a payment election for a Payment Sub-Account in accordance
with the provisions of this Paragraph 7(b) shall be deemed to have elected for such Payment
Sub-Account a lump sum payment following termination of employment.



     (c) Subsequent Changes to Payment Elections. A Participant may change the timing or
form of payment elected under Paragraph 7(b)(ii) or (iv) above, or the timing or form of payment
subsequently elected under this Paragraph 7(c), with respect to a Payment Sub-Account only if (i)
such election is made at least twelve (12) months prior to the date the payment of the Payment
Sub-Account would have otherwise commenced, and (ii) the effect of such election is to defer
commencement of such payments by at least five (5) years.



     (d) Default Lump Sum Payment. Notwithstanding any provision herein to the contrary, a
Participant’s entire Account balance shall be payable in a single cash payment on or as soon as
administratively practicable after the beginning of the seventh month following the Participant’s
termination of employment with the Participating Employers if, as of the Participant’s date of
termination of employment with the Participating Employers, the amount of the Participant’s Account
balance equals Twenty Thousand Dollars ($20,000) or less.



     (e) Installments. If amounts are payable to a Participant in the form of annual
installments, the first annual installment shall be paid commencing per the applicable election set
forth in Paragraph 7(b) above, and each subsequent annual installment shall be paid on or about the
anniversary of the first installment. The amount payable on each payment date shall be equal to
the balance of the applicable Sub-Account Account on the applicable payment date divided by the
number of remaining installments (including the installment then payable).



     (f) Death. If a Participant dies after having commenced installment payments, any
remaining unpaid installment payments shall be paid to the Participant’s Beneficiary as and when
they would have otherwise been paid to the Participant had the Participant not died. If a
Participant terminates employment due to death, the Participant’s Account shall be payable to the
Participant’s Beneficiary commencing as soon as administratively practicable after the
Participant’s death in the form of either a single cash payment or five annual installments as
elected by the Participant pursuant to this Paragraph 7(f). Such payment method election shall be
made by the Participant at such time or times and pursuant to such procedures as the Plan
Administrator may establish from time to time. If a Participant fails to make a payment method
election under this Paragraph 7(f), the method of payment to the Beneficiary shall be a single cash
payment.



     (g) Withdrawals on Account of an Unforeseeable Emergency. A Participant who is in
active service with a Participating Employer may, if permitted by the Plan Administrator, receive a
refund of all or any part of the amounts previously credited to the Participant’s Account in the
case of an “unforeseeable emergency.” A Participant requesting a payment pursuant to this
Paragraph 7(g) shall have the burden of proof of establishing, to the Plan Administrator’s
satisfaction, the existence of an “unforeseeable emergency,” and the amount of the payment needed
to satisfy the same. In that regard, the Participant must provide the Plan Administrator with such
financial data and information as the Plan Administrator may request. If the Plan Administrator
determines that a payment should be made to a Participant under this Paragraph 7(g), the payment
shall be made within a reasonable time after the Plan Administrator’s



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determination of the existence of the “unforeseeable emergency” and the amount of payment so
needed. As used herein, the term “unforeseeable emergency” means a severe financial hardship to a
Participant resulting from a sudden and unexpected illness or accident of the Participant or of a
dependent of the Participant, loss of the Participant’s property due to casualty, or other similar
extraordinary and unforeseeable circumstances arising as a result of events beyond the control of
the Participant. The circumstances that constitute an “unforeseeable emergency” shall depend upon
the facts of each case, but, in any case, payment may not be made to the extent that the hardship
is or may be relieved (i) through reimbursement or compensation by insurance or otherwise, or (ii)
by liquidation of the Participant’s assets, to the extent the liquidation of such assets would not
itself cause severe financial hardship. Examples of what are not considered to be “unforeseeable
emergencies” include the need to send a Participant’s child to college or the desire to purchase a
home. Withdrawals of amounts because of an “unforeseeable emergency” may not exceed an amount
reasonably needed to satisfy the emergency need.



     (h) Other Payment Provisions. To be effective, any elections under Paragraphs 6 or 7
herein shall be made on such form, at such time and pursuant to such procedures as determined by
the Plan Administrator in its sole discretion from time to time. Any deferral or payment hereunder
shall be subject to applicable payroll and withholding taxes. In the event any amount becomes
payable under the provisions of the Plan to a Participant, Beneficiary or other person who is a
minor or an incompetent, whether or not declared incompetent by a court, such amount may be paid
directly to the minor or incompetent person or to such person’s fiduciary (or attorney-in-fact in
the case of an incompetent) as the Plan Administrator, in its sole discretion, may decide, and the
Plan Administrator shall not be liable to any person for any such decision or any payment pursuant
thereto.



8. Amendment, Modification and Termination of the Plan:




     The Compensation Committee shall have the right and power at any time and from time to time to
amend the Plan in whole or in part and at any time to terminate the Plan; provided,
however, that no amendment or termination may reduce the amount actually credited to a
Participant’s Account on the date of the amendment or termination, or further defer the due dates
for the payment of the amounts, without the consent of the affected Participant. Notwithstanding
any provision of the Plan to the contrary but subject to the requirements of Code Section 409A, in
connection with any termination of the Plan the Compensation Committee shall have the authority to
cause the Accounts of all Participants (and Beneficiaries of any deceased Participants) to be paid
in a single cash payment as of a date determined by the Compensation Committee or to otherwise
accelerate the payment of all Accounts in such manner as the Compensation Committee determines in
its discretion.



9. Claims Procedures:




     Claims for benefits under the Plan shall be addressed pursuant to the claims procedures
applicable under the Savings Plan. Any decision pursuant to such claims procedures shall be final
and conclusive upon all persons interested therein, except to the extent otherwise provided by
applicable law.



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10. Indemnity of Plan Administrator:




     The Participating Employers shall indemnify and hold harmless the Plan Administrator and any
Employee to whom the duties of the Plan Administrator may be delegated from and against any and all
claims, losses, damages, expenses or liabilities arising from any action or failure to act with
respect to the Plan, except in the case of willful misconduct by the Plan Administrator or any such
Employee.



11. Applicable Law:




     The Plan shall be governed and construed in accordance with the laws of the State of North
Carolina, except to the extent such laws are preempted by the laws of the United States of America.



12. Compliance With Code Section 409A




     The Plan is intended to comply with Code Section 409A. Notwithstanding any provision of the
Plan to the contrary, the Plan shall be interpreted, operated and administered consistent with this
intent.



13. Miscellaneous:




     A Participant’s rights and interests under the Plan may not be assigned or transferred by the
Participant. In that regard, no part of any amounts credited or payable hereunder shall, prior to
actual payment, (i) be subject to seizure, attachment, garnishment or sequestration for the payment
of debts, judgments, alimony or separate maintenance owed by the Participant or any other person,
(ii) be transferable by operation of law in the event of the Participant’s or any person’s
bankruptcy or insolvency or (iii) be transferable to a spouse as a result of a property settlement
or otherwise. The Plan shall be an unsecured and unfunded arrangement. To the extent the
Participant acquires a right to receive payments from the Participating Employers under the Plan,
the right shall be no greater than the right of any unsecured general creditor of the Participating
Employers. Nothing contained herein may be deemed to create a trust of any kind or any fiduciary
relationship between a Participating Employer and any Participant. Designation as an Eligible
Employee or Participant in the Plan shall not entitle or be deemed to entitle the person to
continued employment with the Participating Employers. The Plan shall be binding on the Corporation
and any successor in interest of the Corporation.



APPROVED BY THE COMPENSATION COMMITTEE OF THE BOARD ON DECEMBER 16, 2005





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