Exhibit



Exhibit 10.68









    
















    




TYSON FOODS, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT
AND LIFE INSURANCE PREMIUM PLAN
(AMENDED AND RESTATED AS OF JANUARY 1, 2017)

































Exhibit 10.68





TABLE OF CONTENTS


	
			
	 
	 
	PAGE

	SECTION 1
	INTRODUCTION
	1

	SECTION 2
	DEFINITIONS
	1

	SECTION 3
	PARTICIPATION
	10

	SECTION 4
	SERP BENEFITS
	12

	SECTION 5
	FORMS OF SERP PAYMENT
	15

	SECTION 6
	LIFE INSURANCE PREMIUM PAYMENTS
	16

	SECTION 7
	ADMINISTRATION OF THE PLAN
	17

	SECTION 8
	CERTAIN RIGHTS AND LIMITATIONS
	17

	SECTION 9
	AMENDMENT AND TERMINATION OF THE PLAN
	19

	SECTION 10
	CLAIMS REVIEW PROCEDURE
	22

	SECTION 11
	ADOPTION BY AFFILIATES
	25















Exhibit 10.68



SECTION 1
INTRODUCTION    


The Company maintains the Tyson Foods, Inc Supplemental Executive Retirement and Life Insurance Premium Plan (the “Plan”) originally effective as of March 12, 2004. 


The Plan is currently maintained pursuant to an amended and restated document effective as of November 14, 2013, as amended by the First Amendment thereto dated November __, 2014.


The Company now desires to amend and restate the Plan, primarily to revise the eligibility provisions of the Plan.


The Company currently intends to maintain the Plan indefinitely.  The Plan provides for each Plan Sponsor to pay its respective benefits and administrative costs from its general assets.  The establishment of the Plan shall not convey rights to Participants or any other person which are greater than those of the general creditors of the respective Plan Sponsor.


The terms and conditions of participation and benefits under the Plan are determined exclusively by the provisions of this document and any amendments thereto adopted in accordance with Section 9 hereof.  In the event of any conflict between the provisions of this document, as it may be amended from time to time hereafter, and any other description of the Plan, the provisions of this document, as it may be so amended, control.


The provisions of this amended and restated document are generally effective as of January 1, 2017 (the “Effective Date”), except as otherwise provided for herein.



SECTION 2
DEFINITIONS    


As used in this Plan, the masculine pronoun shall include the feminine and the feminine pronoun shall include the masculine unless otherwise specifically indicated.  In addition, the following words and phrases as used in this Plan shall have the following meaning unless a different meaning is plainly required by the context:


2.1    “Actuarial Equivalent” means a benefit of equivalent value, when computed on the basis of the same mortality table and the rate(s) of interest and/or empirical table(s).  The Plan Administrator shall establish the applicable mortality table, rate of interest and/or empirical table in its sole discretion.  Prior to a Change of Control, the Plan Administrator may change the table(s) and/or rate(s) of interest used in determining whether a benefit is the Actuarial Equivalent of another benefit.  No Participant shall accrue a right to have any particular table or interest rate used in computing the lump sum value of his or her SERP benefit and, therefore, differences in Actuarial Equivalent computations attributable to varying table(s) and/or rate(s) of interest shall not be deemed a part of a Participant’s “accrued” benefits as described in Section 9.1.  Effective with a Change of Control, the table(s) and rate(s) of interest shall remain the same as those in effect immediately prior to the Change of Control.


2.2    “Affiliate” means (a) any corporation which is a member of the same controlled group of corporations (within the meaning of Code Section 414(b)) as is a Plan Sponsor, (b) any other trade 


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Exhibit 10.68



or business (whether or not incorporated) under common control (within the meaning of Code Section 414(c)) with a Plan Sponsor, (c) any other corporation, partnership or other organization which is a member of an affiliated service group (within the meaning of Code Section 414(m)) with a Plan Sponsor, and (d) any other entity required to be aggregated with a Plan Sponsor pursuant to regulations under Code Section 414(o).  


2.3    “Band Level” means the level within the classification system assigned to a Participant’s job position.  Effective October 9, 2016, the Band Level classification system became a Grade Level system.  The Band Level mapped over to the Grade Level system in accordance with the following schedule:   


Band Level                    Grade Level


        0                                98&99
        1                                97
        2                                96
        4&5                            95
        6                                94
        7                                93
        8&9                            92


2.4    “Board of Directors” means the Board of Directors of Tyson Foods, Inc.


2.5    “Change of Control” means any one of the following events occurring after March 12, 2004:


(a)the acquisition by any individual, entity or “group,” within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934 (a “Person”), of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934) of voting securities of the Company where such acquisition causes any such Person to own twenty-five percent (25%) or more of the combined voting power of the then outstanding voting securities then entitled to vote generally in the election of directors (the “Outstanding Voting Securities”); provided, however, that for purposes of this Subsection (a), the following shall not be deemed to result in a Change of Control, (1) any acquisition directly from the Company, unless such a Person subsequently acquires additional shares of Outstanding Voting Securities other than from the Company, in which case any such subsequent acquisition shall be deemed to be a Change of Control; or (2) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company;


(b)a merger, consolidation, share exchange, combination, reorganization or like transaction involving the Company in which the stockholders of the Company immediately prior to such transaction do not own at least fifty percent (50%) of the value or voting power of the issued and outstanding capital stock of the Company or its successor immediately after such transaction;




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Exhibit 10.68



(c)the sale or transfer (other than as security for the Company’s obligations) of more than fifty percent (50%) of the assets of the Company in any one transaction or a series of related transactions occurring within a one (1) year period in which the Company, any corporation controlled by the Company or the stockholders of the Company immediately prior to the transaction do not own at least fifty percent (50%) of the value or voting power of the issued and outstanding equity securities of the acquiror immediately after the transaction;


(d)the sale or transfer of more than fifty percent (50%) of the value or voting power of the issued and outstanding capital stock of the Company by the holders thereof in any one transaction or a series of related transactions occurring within a one (1) year period in which the Company, any corporation controlled by the Company or the stockholders of the Company immediately prior to the transaction do not own at least fifty percent (50%) of the value or voting power of the issued and outstanding equity securities of the acquiror immediately after the transaction;


(e)within any twelve-month period the persons who were directors of the Company immediately before the beginning of such twelve-month period (the “Incumbent Directors”) shall cease to constitute at least a majority of the Board of Directors; provided that no director whose initial assumption of office is in connection with an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Securities Exchange Act of 1934) relating to the election of directors of the Company shall be deemed to be an Incumbent Director; or


(f)the dissolution or liquidation of the Company.


Notwithstanding the foregoing, in interpreting the foregoing provisions, the term “Change of Control” shall not be deemed to include any event as a result of which one or more of the following persons or entities possess or continues to possess, immediately after such event, over fifty percent (50%) of the combined voting power of the Company or, if applicable, a successor entity: (1) Tyson Limited Partnership, or any successor entity; (2) individuals related to the late Donald John Tyson by blood, marriage or adoption, or the estate of any such individual (including Donald John Tyson’s); or (3) any entity (including, but not limited to, a partnership, corporation, trust or limited liability company) in which one or more of the entities, individuals or estates described in clauses (1) and (2) hereof possess over fifty percent (50%) of the combined voting power or beneficial interests of such entity.


2.6    “Code” means the Internal Revenue Code of 1986 and all regulatory guidance promulgated thereunder, as the same may be amended and modified from time to time.


2.7    “Company” means Tyson Foods, Inc. and any successor thereto.




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Exhibit 10.68



2.8    “Compensation” means the base salary paid to, or deferred by, an Active Participant for services rendered to the Company or an Affiliate during any calendar year in which the Participant accrues Creditable Service, including any deferrals of base salary, bonus or other cash incentive under a 401(k) plan, deferrals under a non-qualified, defined contribution deferred compensation plan or salary reduction under a cafeteria plan of the Company or an Affiliate, plus any annual cash bonus or other cash incentive payable to an Active Participant under a recurring incentive program applicable to one or more classes of employees.  Compensation shall not include any other forms of compensation, fringe benefits or severance payments or benefits, whether characterized as such, made pursuant to any employment agreement, separation agreement, severance plan or policy or any similar arrangement, unless such agreement, plan, policy or arrangement expressly provides that the special termination or severance payments or benefits are to be included as Compensation under the Plan.


(a)    Notwithstanding the foregoing, with respect to any approved period of absence during which disability benefits are being paid to the Participant under a short-term or long-term disability plan then maintained by the Company or an Affiliate which is included as Creditable Service, the Participant’s Compensation for purposes of the Plan for each calendar year encompassed by such period of absence shall be deemed to be the greater of (1) his Compensation paid for the last full calendar year of his employment immediately preceding the calendar year in which such absence began, or (2) the actual Compensation the Participant received in the calendar year.


(b)    Notwithstanding the foregoing, with respect to any approved, but unpaid, period of absence which is included as Creditable Service, the Participant’s Compensation for purposes of the Plan for such period of absence shall be deemed to be the Participant’s base salary at the rate in effect immediately prior to the commencement of the period of absence.


(c)    If a Participant is granted Creditable Service pursuant to Section 2.10(c) or (d), the Plan Administrator shall also recognize Compensation paid to the Participant during the same period corresponding to the period of additional Creditable Service for purposes of determining retirement benefits under the Plan.


2.9    “Contracted Officer” means (a) from March 12, 2004 until December 31, 2016, an employee of a Plan Sponsor who has a written employment agreement in effect with the Plan Sponsor for the performance of services in a recognized officer position of the employing entity in Band Levels 0 through 9; and (b) from and after January 1, 2017, an employee of a Plan Sponsor for the performance of services in a recognized officer position of the employing entity in Grade Levels 99 through 92.


2.10     “Creditable Service” means:


(a)The total number of years and completed months of continuous service rendered by an Active Participant for the Company or an Affiliate while an Eligible Contracted Officer from and after January 1, 2004.




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Exhibit 10.68



(b)Periods of authorized leaves of absence from the Company or any Affiliate credited to an Eligible Contracted Officer on or after January 1, 2004, including but not limited to leaves required to be granted pursuant to the Family and Medical Leave Act of 1993 and the Uniformed Services Employment and Reemployment Rights Act, and, notwithstanding any other provision of this Plan to the contrary, any period of an authorized leave of absence on or after January 1, 2004 credited to an Eligible Contracted Officer while disability benefits are being paid under a short-term or long-term disability plan then maintained by the Company or an Affiliate.


(c)Any prior Creditable Service under this Plan rendered by an Active Participant who becomes an Inactive Participant shall be disregarded if he or she again becomes an Active Participant, unless the prior Creditable Service is to be recognized pursuant to Section 3.5 or unless otherwise recognized by the Plan Administrator pursuant to Section 2.10(d) and communicated to the Participant in writing. 


(d)Subject to approval by the Plan Administrator, a Participant may be granted additional years of Creditable Service for purposes of determining retirement benefits under the Plan.  Additional service granted under provisions of an individual agreement between the Company or any Affiliate and a Participant or under any severance plan or policy of the Company covering the Participant shall also be included in determining Creditable Service, but only in accordance with the specific terms of such provisions.


2.11    “Disability” means a disability of a Participant which, in the opinion of the Plan Administrator, causes a Participant to be totally and permanently disabled due to sickness or injury so as to be completely unable to perform any and every duty pertaining to his occupation from a cause other than as specified below:


(a)    excessive and habitual use by the Participant of drugs, intoxicants or narcotics;


(b)    injury or disease sustained by the Participant while willfully and illegally participating in fights, riots, civil insurrections or while committing a felony;


(c)    injury or disease sustained by the Participant diagnosed or discovered subsequent to the date of his Separation from Service; and


(d)    injury or disease sustained by the Participant while working for anyone other than the Plan Sponsor or any Affiliate and arising out of such employment.


The determination of whether or not a Disability exists shall be determined by the Plan Administrator and shall be substantiated by competent medical evidence.


2.12    “Disability Retirement Allowance” means the SERP retirement benefits payable to an otherwise eligible Participant, as described in Section 4.1(c), who experiences a Separation from Service due to a Disability.




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Exhibit 10.68



2.13    “Early Retirement Allowance” means the SERP retirement benefits payable under Section 4.3 to a Participant who retires prior to attaining Normal Retirement Age.  


2.14    “Eligible Contracted Officer” means:


(a)a Grandfathered Participant under Section 2.18(a), but only for that period of time he or she continues to occupy an officer position, prior to January 1, 2017, in a Band Level of 0 through 9 and, from and after January 1, 2017, in a Grade Level of 99 through 92; 


(b)a Grandfathered Participant under Section 2.18(b), but only for that period of time he or she continues to occupy an officer position, prior to January 1, 2017, in a Band Level of 0 through 5 and, from and after January 1, 2017, in a Grade Level of 99 through 95; and 


(c)a Contracted Officer, but only for that period he or she occupies an officer position in a Grade Level of 99, 98 or 97.


2.15    “ERISA” means the Employee Retirement Income Security Act of 1974 and all regulatory guidance thereunder, as the same may be amended and modified from time to time.


2.16    “Final Average Compensation” means the average annual Compensation of a Participant measured over the final five (5) consecutive, whole calendar years during the Participant’s entire period of Creditable Service.  If a Participant has less than five (5) consecutive, whole calendar years of Creditable Service, Final Average Compensation shall be computed over all such years.   


2.17    “Grade Level” means the level within the classification system assigned to a Participant’s job position under the method adopted by the Board of Directors effective as of January 1, 2017.  


2.18    “Grandfathered Participant” means (a) a Contracted Officer who was an Active or Inactive Participant occupying an officer position in a Band Level of 0 through 9 at any time prior to March 1, 2007; and (b) a Contracted Officer who was an Active or Inactive Participant occupying an officer position in a Band Level of 0 through 5 at any time prior to January 1, 2017.


2.19    “LIP” means the portion of the Plan providing the life insurance premiums payment benefits described in Section 6.


2.20    “Nonforfeitable” refers only to the vested, but unsecured, contractual right of a Participant, if any, to benefits under this Plan.  In no event, however, shall “Nonforfeitable” imply any preferred claim on, or any beneficial ownership interest in, any assets of the Plan Sponsor before those assets are paid to any Participant pursuant to the terms of the Plan.  As provided in Sections 6.3 and 8.5 below, certain events may result in the forfeiture even of Nonforfeitable benefits.




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Exhibit 10.68



2.21    “Normal Retirement Age” means age 62.  


2.22    “Normal Retirement Allowance” means the SERP retirement benefits payable under Section 4.2 to a Participant who retires on or after attaining Normal Retirement Age.  


2.23    “Participant” means any Active Participant, Inactive Participant or Retired Participant.  


(a)“Active Participant” means an Eligible Contracted Officer of a Plan Sponsor from the time participation in the Plan begins pursuant to Section 3.1 until the earliest of the time:  


(1)    the Participant retires and is entitled to SERP retirement benefits under Section 4, 


(2)    the Participant becomes an Inactive Participant,


(3)    the Participant experiences a Separation from Service (regardless of the reason) prior to becoming entitled to SERP retirement benefits under Section 4, except as otherwise provided in Section 9.5, or


(4)    the Participant ceases to be an Active Participant by reason of an event described in Section 9.3 or 9.5.


Notwithstanding the foregoing, if an Active Participant is placed on an approved leave of absence, as defined by the Plan Administrator from time to time under uniform and nondiscriminatory rules, and, at the date of such change in status, the Participant has a Nonforfeitable right to his or her SERP retirement benefit, the Plan Administrator may provide for continuation of the Participant’s status as an Active Participant in the Plan notwithstanding any provision of this Section 2.23 to the contrary.  


(b)“Inactive Participant” means a Participant who ceases to be an Active Participant, who has not become a Retired Participant and who:


(1)    had a Nonforfeitable right to his or her SERP retirement benefits before ceasing to be an Active Participant;


(2)    (i) continues to be a Contracted Officer of the Company or an Affiliate but who, as a result of a change in status, ceases to be an Eligible Contracted Officer; or (ii) ceases to be a Contracted Officer but returns to an Eligible Contracted Officer position under the criteria set forth in Section 3.5(a)(2); or




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Exhibit 10.68



(3)    has his or her Active Participant status terminated solely by reason of Section 2.23(a)(4). 


An Inactive Participant described in Section 2.23(b)(1) who earned a Nonforfeitable right to his or her SERP retirement benefit while an Active Participant and an Inactive Participant who earns a Nonforfeitable right to his or her SERP retirement benefit while an Inactive Participant pursuant to Section 2.23(b)(2) shall be eligible for retirement benefits in accordance with Section 4 from and after the date the SERP retirement benefit becomes Nonforfeitable.  However, as set forth in Section 3.5, for purposes of Sections 4.2(a)(1) and 4.2(b)(1), no increase in SERP retirement benefits shall be attributed to Compensation paid or for services rendered during the period of time that such a Participant is classified as an Inactive Participant.


(c)“Retired Participant” shall mean either (1) an Active Participant who has retired on or after meeting the requirements for a Normal, Early or Disability Retirement Allowance under Section 4 or (2) an Inactive Participant who met the requirements for a Normal, Early or Disability Retirement Allowance under Section 4 prior to becoming, or during his or her status as, an Inactive Participant and who subsequently retires.


2.24    “Plan” means this Tyson Foods, Inc. Supplemental Executive Retirement and Life Insurance Premium Plan, as from time to time amended, providing the SERP and LIP benefits described herein.


2.25    “Plan Administrator” means the person or persons appointed by the Board of Directors to administer the Plan on behalf of the Company and, in lieu of any such appointment, the administrative committee established by the Company generally responsible for the administration of the Company’s employee benefit plans.


2.26    “Plan Sponsor” means the Company and each Affiliate that has adopted the Plan with the approval of the Company.


2.27    “Separation from Service” shall mean a separation from service with the Company and its Affiliates within the meaning of Treasury Regulations Section 1.409A-1(h) and any successor guidance thereto.  No Separation from Service shall occur while a Participant is on any bona fide leave of absence not in excess of six (6) months duration or, if longer, so long as the Participant’s right to reemployment is provided either by statute or contract.


2.28    “SERP” means the portion of the Plan providing the retirement benefits described in Section 4.


2.29    “Specified Employee” shall mean a Participant who is a key employee (as defined in Code Section 416(i) without regard to Code Section 416(i)(5)) of the Company (or an entity which is considered to be a single employer with the Company under Code Section 414(b) or 414(c)) at any time during the twelve (12) month period ending on December 31.  Notwithstanding the foregoing, a Participant who is a key employee determined under the preceding sentence will be deemed to be a Specified Employee solely for the period of April 1 through March 31 following such December 31 or as otherwise required by Code Section 409A.




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Exhibit 10.68



2.30    “Spouse” means a person who, at the time payment of a Retired Participant’s SERP retirement benefits are to commence, is alive and married to the Participant and has been married for at least one year to the Participant as evidenced by a valid marriage certificate.  For purposes of determining whether a same-sex spouse constitutes a “Spouse” hereunder, Spouse means the individual to whom a Participant is lawfully married according to the law of the state or other jurisdiction in which such marriage occurred.


2.31    “Vesting Service” means:


(a)Except as otherwise provided in this Section 2.31, the total number of years and completed months of continuous service rendered by an Active Participant as an employee of the Company or an Affiliate.


(b)Vesting Service includes any periods of authorized leaves of absence from the Company or any Affiliate by a Participant, including but not limited to leaves required to be granted pursuant to the Family and Medical Leave Act of 1993 and the Uniformed Services Employment and Reemployment Rights Act, and, notwithstanding any other provision of this Plan to the contrary, any period of an authorized leave of absence while disability benefits are being paid to the Participant under a short-term or long-term disability plan then maintained by the Company or an Affiliate.


(c)An Active Participant who ceases to be an Eligible Contracted Officer but who continues to be a Contracted Officer shall receive credit for Vesting Service while his or her status as a Contracted Officer continues.  


(d)An Active Participant who ceases to be a Contracted Officer before re-qualifying as an Active Participant shall receive credit for Vesting Service performed for his or her prior continuous period of service as an employee of the Company or an Affiliate, provided he or she returns to an Eligible Contracted Officer position within five (5) years from losing his or her position as an Eligible Contracted Officer; however, such credit shall count only for purposes of determining whether his or her SERP retirement benefits are Nonforfeitable and not for purposes of determining the amount of the SERP retirement benefit under either Section 4.2(a)(2) or Section 4.2(b)(2).  Such a Participant shall not earn Vesting Service during the period commencing with the date he or she ceased to be an Active Participant for as long as he or she thereafter was not a Contracted Officer, unless and until he or she returns to an Eligible Contracted Officer position within five (5) years from losing that status.


(e)Subject to approval by the Plan Administrator, a Participant may be granted additional years of Vesting Service for purposes of determining benefits under the Plan.  Additional service granted under provisions of an individual agreement between the Company or any Affiliate and a Participant or under any severance plan or policy of the Company covering the Participant shall also be included in determining Vesting Service, but only in accordance with the specific terms of such provisions.


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Exhibit 10.68





SECTION 3
PARTICIPATION    


3.1    Commencement of SERP Participation.  Each Eligible Contracted Officer shall commence participation in the SERP as an Active Participant as of the later of March 12, 2004 or the effective date that the Contracted Officer first becomes an Eligible Contracted Officer.  An Active Participant who ceases to qualify as an Active Participant shall recommence participation in the Plan as an Active Participant if the individual again satisfies the criteria for being an Active Participant.  Recommencement of participation as an Active Participant shall be prospective only unless prior non-contiguous Creditable Service and corresponding Compensation is to be recognized either in accordance with Section 3.5 or at the discretion of the Plan Administrator pursuant to, respectively, Sections 2.8(b) and (c) and 2.10),


3.2    Commencement of LIP Participation.  An Active Participant is eligible for LIP benefits if he or she timely applies for and is issued a policy on his or her life of a type and by an insurer designated by the Plan Administrator effective as of the date of coverage indicated by such policy.  Notwithstanding the foregoing, an Active Participant shall not be eligible for LIP benefits if he or she first commences, or an Inactive Participant recommences, participation in the Plan pursuant to Section 3.1 on or after July 1, 2014.


3.3    Termination of SERP Participation and Forfeiture of SERP Retirement Benefits.  When a Participant ceases to be an Active Participant, he or she shall cease to be a Participant unless the Participant remains an Inactive Participant or becomes a Retired Participant.  An Inactive Participant (a) who did not have a Nonforfeitable right to his or her SERP retirement benefits before ceasing to be an Active Participant, (b) who ceases to be a Contracted Officer and (c) does not return to an Eligible Contracted Officer position within five (5) years from losing that status shall forfeit any SERP retirement benefit previously earned but not then vested.  A Retired Participant shall remain a Participant until his or her date of death, unless his or her Nonforfeitable benefits are forfeited pursuant to Section 6.3 or 8.5.


3.4    Termination of LIP Participation. 


(a)    Except as further provided in Section 3.4(b), an Active Participant who is otherwise eligible for LIP benefits shall remain a Participant under the LIP portion of the Plan through the policy anniversary date immediately following his or her Separation from Service, unless:


(1)    his or her otherwise Nonforfeitable benefits are forfeited pursuant to Section 8.5;


(2)    the policy issued to the Participant, as contemplated by Section 3.2, is surrendered, modified or exchanged by the Participant or the Participant causes a diminution in the policy’s cash surrender value by withdrawing from, or borrowing against, the policy; or




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Exhibit 10.68



(3)    the Participant refuses or neglects to cooperate with the Plan Sponsor in its efforts to confirm whether any circumstances described in Section 3.4(a)(2) exist.


(b)    When an otherwise eligible Active Participant ceases to be an Active Participant but continues in the service of the Company or an Affiliate, he or she shall cease to be a Participant under the LIP portion of the Plan as of the policy anniversary date immediately following his or her change in status and shall have no rights to LIP benefits thereafter even if the Participant re-commences participation as an Active Participant.


As a condition to participation, or continued participation, in the Plan, a Participant who is otherwise eligible for LIP benefits shall be required to reimburse the Plan Sponsor for the reimbursable portion of any premium paid on the policy issued to the Participant in connection with his or her participation in the Plan if the Participant experiences a Separation from Service within one (1) year of his or her original date of hire with the Company or any Affiliate.


3.5    Inactive Participant.  


(a)For purposes of Sections 4.2(a)(1) and 4.2(b)(1), no increase in SERP retirement benefits shall be attributed to Compensation paid or for services rendered during the period of time that a Participant is classified as an Inactive Participant,.  In addition, any Compensation paid or services rendered during any prior period of time when an Inactive Participant was an Active Participant shall be disregarded, except as provided below:


(1)    Eligible Contracted Officer to Ineligible Contracted Officer.  An Active Participant who ceases to be an Eligible Contracted Officer but who continues to be a Contracted Officer shall receive credit for Compensation earned and Creditable Service performed for his or her prior period of time as an Eligible Contracted Officer for purposes of Sections 4.2(a)(1) and 4.2(b)(1).  


(2)    Eligible Contracted Officer to Not a Contracted Officer.  An Active Participant who ceases to be a Contracted Officer before re-qualifying as an Active Participant shall receive credit for Compensation earned and Creditable Service performed for his or her prior period of time as an Eligible Contracted Officer for purposes of Sections 4.2(a)(1) and 4.2(b)(1), provided he or she returns to an Eligible Contracted Officer position within five (5) years from losing that status. 


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Exhibit 10.68





(b)Special Crediting by Plan Administrator.  Compensation and Creditable Service shall be recognized to the extent expressly awarded to an Inactive Participant by the Plan Administrator pursuant to Sections 2.8(c) and 2.10(d).


(c)Section 9.3/9.5 Events.  Notwithstanding the other limiting provisions of this Section 3.5, a Participant who has his or her Active Participant status terminated solely by reason of Section 2.23(a)(4) shall be subject to the general provisions of the Plan, as expressly modified by Section 9.3 or 9.5, as applicable.


3.6    Ineligibility.  Notwithstanding any other provision of the Plan, the Plan Administrator may exclude any Contracted Officer from participation in the SERP and/or the LIP, with or without the consent of the Contracted Officer, and no such exclusion shall require the provision of substitute consideration to the Contracted Officer(s) so excluded.



SECTION 4
SERP BENEFITS    


4.1    Nonforfeitable Right to SERP Benefits.


(a)An Active Participant or Inactive Participant who attains Normal Retirement Age and who is then a Contracted Officer shall have a Nonforfeitable right to benefits under this Section 4, subject to the provisions of Sections 6.3 and 8.5, and may retire and receive payment of a Normal Retirement Allowance under the SERP.  Payment of the Normal Retirement Allowance shall be made in accordance with Section 4.1(e).  


(b)An Active Participant or Inactive Participant who has attained age 55 (or any earlier age as may be authorized in writing by the Plan Administrator in its sole discretion on a case-by-case basis) and whose combination of age (including completed whole calendar months of age) and years of Vesting Service equal or exceed 70 and who is then a Contracted Officer shall have a Nonforfeitable right to benefits under this Section 4, subject to the provisions of Sections 6.3 and  8.5, and may retire prior to Normal Retirement Age and receive payment of an Early Retirement Allowance under the SERP.  Payment of the Early Retirement Allowance shall be made in accordance with Section 4.1(e).


(c)Subject to this Section 4.1(c), an Active Participant or an Inactive Participant who is then a Contracted Officer and who has become subject to a Disability prior to earning a Nonforfeitable right to benefits under either Section 4.1(a) or (b) above shall have a Nonforfeitable right to benefits under this Section 4, subject to the provisions of Sections 6.3 and 8.5, and may retire prior to Normal Retirement Age and receive payment of a Disability Retirement Allowance under the SERP.  Payment of the Disability Retirement Allowance shall be made in accordance with Section 4.1(e).  Notwithstanding the foregoing, an Active Participant who first commences, or an Inactive Participant who recommences, participation in the Plan pursuant to Section 3.1 on or after July 1, 2014, shall not be eligible for a Disability Retirement Allowance.




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Exhibit 10.68



(d)A Participant who does not become entitled to payments pursuant to Section 4.1(a), (b) or (c) shall not be entitled to any SERP retirement benefits under the Plan.


(e)Payment of the Normal Retirement Allowance, Early Retirement Allowance or Disability Retirement Allowance, as applicable, to a Participant who is otherwise entitled to such an allowance shall commence within the first ninety (90) days of the calendar year immediately following the calendar year in which the Participant actually experiences a Separation from Service and successive payments shall be made during the same ninety (90)-day period in each subsequent calendar year for as long as the annuity form of payment in effect under Section 5 requires.


4.2    Amount of Normal Retirement Allowance.  


(a)    The annual Normal Retirement Allowance under the SERP for a Participant who has a Nonforfeitable right to such an allowance pursuant to Section 4.1 and who was an Eligible Contracted Officer before January 1, 2002 shall be equal to the greater of (1) or (2) below plus (3):


(1)    (i)    2% of the Participant’s Final Average Compensation multiplied by the most recent five years of the Participant’s Creditable Service (or if the Participant has less than five years of Creditable Service, 2% of the Participant’s Final Average Compensation multiplied by the Participant’s total Creditable Service); plus


(ii)    if the Participant has more than five years of Creditable Service, 1% of the Participant’s Final Average Compensation multiplied by the Participant’s years of Creditable Service in excess of five.


(2)    If the Participant has at least twenty (20) years of Vesting Service, an amount equal to the annual premium due and payable by the Plan Sponsor under the life insurance policy described under Section 6.1; otherwise $0.


(3)    If the Participant has at least twenty (20) years of Vesting Service, forty-one percent (41%) of the amount determined under Section 4.2(a)(2) above; otherwise, $0.


Notwithstanding the foregoing, the Normal Retirement Allowance of a Participant whose SERP retirement benefit is calculated pursuant to this Section 4.2(a) and (A) who first commences participation in the Plan on or after July 1, 2014; or (B) who, as an Inactive Participant, recommences participation in the Plan on or after July 1, 2014, shall be determined solely by the computation under Section 4.2(a)(1).


(b)    The annual Normal Retirement Allowance under the SERP for a Participant who has a Nonforfeitable right to such an allowance pursuant to Section 4.1 and who first became an Eligible Contracted Officer on or after January 1, 2002 shall be equal to the greater of (1) or (2) below plus (3):




13


Exhibit 10.68



(1)    1% of the Participant’s Final Average Compensation multiplied by the Participant’s years of Creditable Service.


(2)    If the Participant has at least twenty (20) years of Vesting Service, an amount equal to the annual premium due and payable by the Plan Sponsor under the life insurance policy described under Section 6.1; otherwise $0.


(3)    If the Participant has at least twenty (20) years of Vesting Service, forty-one percent (41%) of the amount determined under Section 4.2(b)(2) above; otherwise, $0.


Notwithstanding the foregoing, the Normal Retirement Allowance of a Participant whose SERP retirement benefit is calculated pursuant to this Section 4.2(b) and (A) who first commences participation in the Plan on or after July 1, 2014; or (B) who, as an Inactive Participant, recommences participation in the Plan on or after July 1, 2014, shall be determined solely by the computation under Section 4.2(b)(1).


(c)    The Normal Retirement Allowance shall be determined annually as of each December 31st provided a Participant remains an Active Participant on such date or as otherwise permitted pursuant to Section 4.


(d)    Notwithstanding the foregoing, a subsequent decrease in the amount of the Normal Retirement Allowance attributable to a change in the Participant’s Final Average Compensation following any prior determination of the Participant's Normal Retirement Allowance will not, by itself, cause a decrease in the amount of the Participant's Normal Retirement Allowance.  In such a case, the previously determined Normal Retirement Allowance amount will remain in effect, as previously determined, unless and until a subsequent annual determination of the Normal Retirement Allowance produces a greater amount.
 
(e)    Notwithstanding the provisions of Sections 4.2(a)(2) and 4.2(b)(2), with respect to any Participant who was an Active Participant as of December 31, 2012, the Plan Administrator may exercise its discretion to adjust the amount determined pursuant to either such provision to reflect the historical methodology used previously by the Plan Administrator to determine the amount under Section 4.2(a)(2) or 4.2(b)(2), as applicable.


4.3    Amount of Early Retirement Allowance.  The annual Early Retirement Allowance under the SERP for Participants who have a Nonforfeitable right to such an allowance pursuant to Section 4.1(b) shall be equal to the Normal Retirement Allowance determined in accordance with Subsection 4.2 except that the portion of the formula described in Section 4.2(a)(1) or 4.2(b)(1), as applicable, shall be based on the Participant’s Final Average Compensation and Creditable Service at the date of retirement and reduced so that it is the Actuarial Equivalent of the allowance that would be payable had the Participant retired at Normal Retirement Age.  


4.4    Amount of Disability Retirement Allowance.  The annual Disability Retirement Allowance under the SERP for Participants who have a Nonforfeitable right to such an allowance pursuant to Section 4.1(c) shall be equal to the sum of the amount described in Sections 4.2(a)(2) and 4.2(a)(3) or Sections 4.2(b)(2) and 4.2(b)(3), as applicable, without regard to whether the Participant 


14


Exhibit 10.68



has twenty (20) years of Vesting Service.  Notwithstanding the foregoing, an Active Participant who first commences, or an Inactive Participant who recommences, participation in the Plan pursuant to Section 3.1 on or after July 1, 2014, shall not be eligible for a Disability Retirement Allowance.


4.5    FICA Payments.  If and when a Participant’s SERP retirement benefits first become Nonforfeitable pursuant to Section 4.1, the Participant shall be paid a cash amount, determined by the Plan Administrator, equal to the sum of (a) the additional taxes under Section 3101 of the Code arising as a result of the vesting event, plus (b) the additional amount that would be necessary to provide the amount determined under the foregoing Clause (a) net of all income and payroll taxes, including the income and payroll taxes payable with respect to the additional amount determined pursuant to this Clause (b).  In its sole discretion, the Plan Administrator may apply all or any portion of the cash payment provided for under this Section 4.5 to the Participant’s tax withholding obligations.  Any cash payment that becomes due pursuant to this Section 4.5 shall be made by March 15th of the calendar year following the calendar year the SERP retirement benefits first become Nonforfeitable.


4.6    Restoration of Retired Participants to Service.  Anything contained in this Plan to the contrary notwithstanding, if a Participant who has received or is receiving a Normal, Early or Disability Retirement Allowance again becomes an employee of the Company or any Affiliate, any retirement allowance payable under this Plan shall continue.  On subsequent retirement, the retirement allowance payable to such Participant shall be based on Compensation and Creditable Service before and after the period of prior retirement, subject to the general terms and conditions set forth in the Plan.


4.7    Suspension of Certain Benefits.  Notwithstanding any other provision of the Plan to the contrary, any payment of benefits due to, or on behalf of, a Participant who is a Specified Employee during the six-month period immediately following his or her Separation from Service shall be suspended and such suspended amounts shall be paid within fifteen (15) business days after the expiration of such six-month period.







SECTION 5
FORMS OF SERP PAYMENT    


The normal form of SERP retirement benefits calculated under Sections 4.2, 4.3, and 4.4 shall be a single life annuity providing for an annual pension payment during the Retired Participant’s lifetime only.  If a Retired Participant has a Spouse at the time payment of his or her SERP retirement benefits are to commence, the Participant may elect payment in the form of a joint and fifty percent (50%) survivor annuity providing for an annual pension payment during the Retired Participant’s lifetime and an annual pension payment to the Spouse for the lifetime of the Spouse equal to fifty percent (50%) of the annual pension that was paid to the Retired Participant.  If a Retired Participant does not have a Spouse at the time payment of his or her SERP retirement benefits are to commence, the form of payment shall be a single life annuity providing for an annual pension payment during the Retired Participant’s lifetime only.  A Retired Participant who has a Spouse may elect payment in the form of a single life annuity.  Election of the form of payment opportunity available to a Participant with a Spouse shall be made in such manner as prescribed by the Plan Administrator.  


15


Exhibit 10.68





The SERP portion of the Plan pays no pre-retirement benefits and no death benefits.  No person other than a Retired Participant, and, if applicable, a surviving Spouse is eligible to receive SERP retirement benefits earned by that Participant.  A person who may become the Spouse of a Participant after the date SERP retirement benefits have commenced is not eligible for any SERP retirement benefits.


The value of each alternative form of payment shall have the same Actuarial Equivalent value as the value of a Participant’s SERP retirement benefits determined in accordance with Section 4.



SECTION 6 
LIFE INSURANCE PREMIUM PAYMENTS    


6.1    Amount of LIP Benefit.  The LIP benefit is an annual amount payable during the period that the Participant is an eligible Active Participant pursuant to Section 3.2 and is equal to the sum of (a) the amount of the annual premium due under the policy described in Section 3.2, reduced by the portion of such annual premium payable by the Participant as and to the extent determined by the Plan Administrator, plus (b) the amount determined under Clause (a) multiplied by the tax withholding rate for supplemental wages applicable to the Participant.  The face amount of the death benefit under the policy shall depend upon the type of policy designated by the Plan Administrator pursuant to Section 3.2 for the Participant.  The Plan Administrator may adjust the death benefit face amount from time to time in its discretion.


6.2    Payment of LIP Benefit.  The amount of the LIP benefit shall be paid in cash or cash equivalents to the otherwise eligible Active Participant; provided, however, that the Plan Administrator, in its sole discretion, may pay a portion of the LIP benefit directly to the insurer that issued the policy described in Section 3.2.  A Participant’s status as an Active Participant must remain continuously in effect from the date of his or her initial commencement of participation in the Plan through the applicable policy anniversary date in order to qualify for that annual LIP benefit; provided, however, that the Plan Administrator, in its sole discretion, may elect to pay an additional annual LIP benefit on behalf of a Participant who has a Nonforfeitable right to SERP benefits as of his or her Separation from Service if such Separation from Service occurs prior to the applicable policy anniversary date for that year.  The LIP benefit will be paid within ninety (90) days following the applicable policy anniversary date.


6.3    Forfeiture of SERP Retirement Benefits.  Notwithstanding any other provision of this Plan to the contrary, if an Active Participant otherwise eligible for LIP benefits under Section 3.2 forfeits the right to the continuation of LIP benefits pursuant to either Section 3.4(a)(2) or (3), the Participant shall also forfeit that portion of his or her SERP retirement benefits that would otherwise be payable pursuant to Sections 4.2(a)(2) and (3) or Sections 4.2(b)(2) and (3), as and to the extent applicable, whether in the form of a Normal, Early or Disability Retirement Allowance.




16



Exhibit 10.68



SECTION 7
ADMINISTRATION OF THE PLAN    


7.1    Rulemaking Authority.  Except as otherwise specifically provided in the Plan, the Plan Administrator shall be the administrator of the Plan.  The Plan Administrator shall have full authority to adopt procedural rules and to employ and rely on such legal counsel, actuaries, accountants and agents as it may deem advisable to assist in the administration of the Plan.  


7.2    Discretionary Authority.  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 Participant 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 Contracted Officers, Participants and other persons, subject to the provisions of the Plan and subject to applicable law.


7.3    Records and Reports.  The Plan Administrator shall furnish Participants with all disclosures now or hereafter required by ERISA or the Code.  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 Code, and shall be solely responsible for establishing and maintaining all records of the Plan.


7.4    Non-Exclusive Description.  The statement of specific duties for a Plan Administrator in this Section is not in derogation of any other duties which a Plan Administrator has under the provisions of the Plan or under applicable law.





SECTION 8
CERTAIN RIGHTS AND LIMITATIONS    


8.1    No Right to Employment.  The establishment of the Plan shall not be construed as conferring any legal rights upon any employee or other person for a continuation of employment, nor shall it interfere with the rights of the Company or an Affiliate to discharge any employee and to treat such employee without regard to the effect which such treatment might have upon such employee as a Participant of the Plan.


8.2    Payments on Behalf of the Impaired.  If the Plan Administrator shall find that a Participant is unable to care for his affairs because of illness, accident or is a minor, the Plan Administrator may direct that any benefit payment due such Participant, unless claim shall have been made therefor by a duly appointed legal representative, be paid to the spouse, a child, parent or other blood relative, or to a person with whom the Participant or other person resides.  Any such payment so made shall be a complete discharge of the liabilities of the Plan with respect to such Participant.




17


Exhibit 10.68



8.3    Claim for Benefits.  Each Participant, before any benefit shall be payable to or on behalf of such Participant, shall file with a member of the Plan Administrator at least thirty (30) days prior to the time of retirement, such information, if any, as shall be required to establish such person’s rights and benefits under the Plan.


8.4    Non-Alienation.  No benefit under the Plan shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, garnishment, attachment, encumbrance or charge, and any attempt so to do shall be void; nor shall any such benefit be in any manner liable for or subject to the debts, contract liabilities, engagements or torts of the person entitled to such benefit.


8.5    Forfeiture of Benefits Due to Misconduct.  The obligation of a Plan Sponsor to make or continue payment of any benefits hereunder shall cease with respect to any Participant who is in breach of any material term of his or her employment contract; provided, however, if no such employment contract is then in existence or, if applicable, was in existence immediately prior to the Participant’s retirement, then the obligation of a Plan Sponsor to make or continue payment of any benefits hereunder shall cease with respect to any Participant who (a) at any time is convicted of a crime involving dishonesty or fraud relating to the Company or its Affiliates (b) at the time, without the Company’s written consent knowingly uses or discloses any confidential or proprietary information relating to the Company or its Affiliates or (c) within one year following Separation from Service, without the Company’s written consent, accepts employment with, or provides consulting services to, a principal competitor of the Company or its Affiliates.


8.6    Participant Status as General Creditor.  All benefits payable under the Plan to a Participant shall be payable from the general assets of the Plan Sponsor who last employed the Participant.  The Plan shall not be funded by the Company or any Affiliate.  However, solely for its own convenience and the convenience of other Plan Sponsors, the Company reserves the right to provide for payment of benefits hereunder through a trust which may be irrevocable but the assets of which shall be subject to the claims of each Plan Sponsor’s general creditors in the event of the Plan Sponsor’s bankruptcy or insolvency, as defined in any such trust.  In no event shall any Plan Sponsor be required to segregate any amount credited to any account, which shall be established merely as an accounting convenience; no Participant shall have any rights whatsoever in any specific assets of any Plan Sponsor or any trust established pursuant to this Section 8.6; no rights of any Participant hereunder shall be subject to participation, alienation, sale, transfer, assignment, pledge, garnishment, attachment or encumbrance nor to the debts, contracts, liabilities, engagements or torts of any Participant.




18


Exhibit 10.68



8.7    Withholding Obligations.  When payments commence under the Plan, the Plan Sponsor shall have the right to deduct from each payment made under the Plan any required withholding taxes.  The Plan Sponsor may deduct from a Participant’s Compensation any required withholding taxes attributable to the Participant’s participation in the Plan prior to the date payments commence.


8.8    Accelerated Payment of SERP Retirement Benefits.  Notwithstanding any other provision of the Plan to the contrary, the Company shall cause each Plan Sponsor to make payments hereunder before such payments are otherwise due if it determines that the provisions of the Plan fail to meet the requirements of Code Section 409A and the rules and regulations promulgated thereunder; provided, however, that such payment(s) may not exceed the amount required to be included in income as a result of such failure to comply the requirements of Code Section 409A and the rules and regulations promulgated thereunder.


8.9    Establishment of Grantor Trust.  Notwithstanding any other provision of the Plan to the contrary, no later than the effective date of a Change of Control under Section 2.5(b), (c), (d) or (f) and no later than thirty (30) days following the effective date of a Change of Control under Section 2.5(a) or (e), the Plan Sponsors collectively shall establish a trust as to which each Plan Sponsor is a “grantor”, within the meaning of Subpart E, Part I, Subchapter J, Chapter 1, Subtitle A of the Code.  The trust so established shall contain the features set forth on Appendix A attached hereto.  No action by the Board of Directors to amend the provisions of this Section 8.9 and Appendix A shall be given effect if such action is taken within sixty (60) days prior to, or at any time after, the effective date of a Change of Control.



SECTION 9
AMENDMENT AND TERMINATION OF THE PLAN    


9.1    Right to Amend.  Subject to the limitation described in Section 8.9, the Board of Directors may amend the Plan at any time and from time to time, and retroactively if deemed necessary or appropriate, to amend or modify in whole or in part, any or all of the provisions of the Plan pursuant to its normal procedures; provided that no such modification or amendment shall adversely affect the SERP retirement benefits of Participants which had accrued and become Nonforfeitable under this Plan prior to the date such amendment or modification is adopted or becomes effective, whichever is later.  The Board of Directors reserves the right to amend the Plan in any respect solely to comply with the provisions of Code Section 409A so as not to trigger any unintended tax consequences prior to the distribution of benefits provided herein.  For purposes of this Section 9, “accrued” benefits refers to the benefits to which a Participant would be entitled, based on his Creditable Service and Compensation as of the date the determination is made.


9.2    Right to Terminate.  The Board of Directors may terminate the Plan for any reason at any time provided that such termination shall not adversely affect the SERP retirement benefits of Participants which had accrued and become Nonforfeitable under the Plan prior to the date termination is adopted or made effective, whichever is later and no such termination of the Plan shall effect the termination of any grantor trust established pursuant to Section 8.9.




19


Exhibit 10.68



9.3    Effect of Plan Termination on SERP Benefits.  


(a)In the event the Plan is terminated, each Participant who has met the age and service requirements to be entitled to a benefit under the SERP shall have a Nonforfeitable right to a Normal Retirement Allowance described in Section 4.2(a) or (b), as applicable, which such Participant had accrued through the date of the termination of the Plan.  Except as provided in Subsection (b), SERP retirement benefits will be paid in accordance with Section 4.2 or 4.3, as applicable.


(b)Notwithstanding the provisions of Section 9.3(a), the Company may cause each Plan Sponsor to pay a lump sum Actuarial Equivalent value of any SERP retirement benefits due to Participants if the Company determines that such payment of SERP retirement benefits will not constitute an impermissible acceleration of payments under one of the exceptions provided in Treasury Regulations Section 1.409A-3(j)(4)(ix), or any successor guidance.  In such an event, payment shall be made at the earliest date permitted under such guidance.


9.4    Effect of Plan Amendment on SERP Benefits.  In the event the Plan is amended or modified in whole or in part to reduce future accruals of SERP retirement benefits, the Participants affected by any such amendment or modification who have met the age and service requirements to be entitled to a SERP retirement benefit shall be treated with respect to the SERP retirement benefits that accrued through the date of such amendment or modification and were affected by such amendment or modification as if the Plan were terminated as of such date and their rights and entitlement to these benefits shall be determined under Section 9.3; provided, however, that such Participants shall be entitled to continue to accrue SERP retirement benefits after the date of such amendment or modification under such modified or amended terms of the Plan.


9.5    Effect of a Change of Control.  


(a)    SERP Benefits.  Notwithstanding Section 4.1(d) to the contrary, in the event of a Change of Control, any person who is an Active Participant in the SERP at the time of the Change of Control who subsequently experiences a Separation from Service, other than a voluntary termination of employment as defined in Plan Section 9.6 below, or who is adversely affected by a termination of the Plan shall be deemed to have a earned a minimum SERP retirement benefit equal to (1) the Normal Retirement Allowance determined under Section 4.2(a) or (b), as applicable, based upon the Participant’s Final Average Compensation and Creditable Service at the date of the Change of Control; (2) without regard to whether he or she has met the age and service requirements otherwise required to be entitled to a SERP retirement benefit; and (3) adjusted to an Actuarial Equivalent amount in accordance with the immediately succeeding sentence.  Payment of a SERP retirement benefit under this Section 9.5 shall commence within the first ninety (90) days of the calendar year immediately following the calendar year in which the Participant actually experiences a Separation from Service following the Change of Control and successive payments shall be made during the same ninety (90)-day period in each subsequent calendar year during the Participant’s lifetime.  Each payment shall be reduced so that it is the Actuarial Equivalent of the allowance that would be payable had the Participant retired at Normal Retirement Age.  In lieu of the SERP retirement benefit under this Section 9.5, a Participant shall be entitled to any alternative, greater benefit under Section 4.2, 


20


Exhibit 10.68



4.3 or 4.4 (or successor provisions) as may be determined under the terms of the Plan as may be in effect from time to time following the Change of Control.  


(b)    LIP Benefits.  Notwithstanding Section 3.4 to the contrary, each Active Participant who is otherwise eligible for a LIP benefit under Section 3.2 immediately prior to the effective date of a Change of Control shall continue to receive the LIP benefit contemplated by Section 6 until the earlier of the Participant’s attainment of age 62 or Separation from Service, regardless of any subsequent termination of the Plan.


9.6    Voluntary Termination of Employment.  For purposes of Plan Section 9.5, a voluntary termination of employment shall mean any Separation from Service initiated by the Participant except a Separation from Service initiated after:


(a)any substantial adverse change in position, duties, title or responsibilities;


(b)any material reduction in base salary or, unless replaced by equivalent arrangements, any material reduction in annual bonus or other cash incentive opportunity or pension or welfare benefit plan coverages;


(c)any relocation required by the Plan Sponsor to an office or location more than 25 miles from the Participant’s current regular office or location; or


(d)any failure of the Plan Sponsor to obtain the agreement of a successor entity to assume the obligations set forth hereunder, provided that the successor has had actual notice of the existence of this arrangement and an opportunity to assume the Plan Sponsor’s responsibilities hereunder during a period of at least 10 business days after receipt of such notice; provided that, in order for a particular event to be treated as an exception to a “voluntary termination,” a Participant must assert such exception within 180 days after actual knowledge of the events giving rise thereto by giving the Plan Sponsor written notice thereof and an opportunity to cure.  Notwithstanding the foregoing, in the event that any employment agreement between the Participant and a Plan Sponsor in effect at the time of such termination provides a definition of “constructive termination” or termination for “good reason” or similar terminology, such definition shall govern over the event described in this Section 9.6 to the extent that it provides addition exceptions to the events which are considered a voluntary termination.




21



Exhibit 10.68



SECTION 10
CLAIMS REVIEW PROCEDURE    


10.1    Notice of Denial.  If a Participant is denied a claim for benefits under the Plan, the Plan Administrator shall provide to the claimant written notice of the denial within ninety (90) days (forty-five (45) days with respect to a denial of any claim for benefits due to the Participant’s Disability) after the Plan Administrator receives the claim, unless special circumstances require an extension of time for processing the claim.  If such an extension of time is required, written notice of the extension shall be furnished to the claimant prior to the termination of the initial 90-day period.  In no event shall the extension exceed a period of ninety (90) days (thirty (30) days with respect to a claim for benefits due to the Participant’s Disability) from the end of such initial period.  With respect to a claim for benefits due to the Participant’s Disability, an additional extension of up to thirty (30) days beyond the initial 30-day extension period may be required for processing the claim.  In such event, written notice of the extension shall be furnished to the claimant within the initial 30-day extension period.  Any extension notice shall indicate the special circumstances requiring the extension of time, the date by which the Plan Administrator expects to render the final decision, the standards on which entitlement to benefits are based, the unresolved issues that prevent a decision on the claim and the additional information needed to resolve those issues.


10.2    Contents of Notice of Denial.  If a Participant is denied a claim for benefits under a 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;


(d)an explanation of the Plan’s claim review procedures, and the time limits applicable to such procedures, including a statement of the claimant’s right to bring a civil action under Sections 502(a) of ERISA following an adverse benefit determination on review;


(e)in the case of a claim for benefits due to a Participant’s Disability, if an internal rule, guideline, protocol or other similar criterion is relied upon in making the adverse determination, either the specific rule, guideline, protocol or other similar criterion; or a statement that such rule, guideline, protocol or other similar criterion was relied upon in making the decision and that a copy of such rule, guideline, protocol or other similar criterion will be provided free of charge upon request; and


(f)in the case of a claim for benefits due to a Participant’s Disability, if a denial of the claim is based on a medical necessity or experimental treatment or similar exclusion or limit, an explanation of the scientific or clinical judgment for the denial, an explanation applying the terms of the Plan to the claimant’s medical circumstances or a statement that such explanation will be provided free of charge upon request.




22


Exhibit 10.68



10.3    Right to Review.  After receiving written notice of the denial of a claim, a claimant or his representative shall be entitled to:


(a)    request a full and fair review of the denial of the claim by written application to the Plan Administrator (or Appeals Fiduciary in the case of a claim for benefits payable due to a Participant’s Disability);


(b)    request, free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claim;


(c)    submit written comments, documents, records, and other information relating to the denied claim to the Plan Administrator or Appeals Fiduciary, as applicable; and 


(d)    a review that takes into account all comments, documents, records, and other information submitted by the claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination.


10.4    Application for Review.


(a)    If a claimant wishes a review of the decision denying his claim to benefits under the Plan, other than a claim described in Subsection (b) of this Section 10.4, he must submit the written application to the Plan Administrator within sixty (60) days after receiving written notice of the denial.


(b)    If the claimant wishes a review of the decision denying his claim to benefits under the Plan due to a Participant’s Disability, he must submit the written application to the Appeals Fiduciary within one hundred eighty (180) days after receiving written notice of the denial.  With respect to any such claim, in deciding an appeal of any denial based in whole or in part on a medical judgment (including determinations with regard to whether a particular treatment, drug, or other item is experimental, investigational, or not medically necessary or appropriate), the Appeals Fiduciary shall


(1)    consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment; and


(2)    identify the medical and vocational experts whose advice was obtained on behalf of the Plan in connection with the denial without regard to whether the advice was relied upon in making the determination to deny the claim.


Notwithstanding the foregoing, the health care professional consulted pursuant to this Subsection (b) shall be an individual who was not consulted with respect to the initial denial of the claim that is the subject of the appeal or a subordinate of such individual.




23


Exhibit 10.68



10.5    Hearing.  Upon receiving such written application for review, the Plan Administrator or Appeals Fiduciary, as applicable, 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 or Appeals Fiduciary received such written application for review.


10.6    Notice of Hearing.  At least ten (10) days prior to the scheduled hearing, the claimant and his representative designated in writing by him, if any, shall receive written notice of the date, time, and place of such scheduled hearing.  The claimant or his representative, if any, may request that the hearing be rescheduled, for his convenience, on another reasonable date or at another reasonable time or place.


10.7    Counsel.  All claimants requesting a review of the decision denying their claim for benefits may employ counsel for purposes of the hearing.


10.8    Decision on Review.  No later than sixty (60) days (forty-five (45) days with respect to a claim for benefits due to the Participant’s Disability) following the receipt of the written application for review, the Plan Administrator or the Appeals Fiduciary, as applicable, shall submit its decision on the review in writing to the claimant involved and to his representative, if any, unless the Plan Administrator or Appeals Fiduciary determines that 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 (ninety (90) days with respect to a claim for benefits due to the Participant’s Disability) after the date of receipt of the written application for review.  If the Plan Administrator or Appeals Fiduciary determines that the extension of time is required, the Plan Administrator or Appeals Fiduciary shall furnish to the claimant written notice of the extension before the expiration of the initial sixty (60) day (forty-five (45) days with respect to a claim for benefits due to the Participant’s Disability) period.  The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the Plan Administrator or Appeals Fiduciary expects to render its decision on review.  In the case of a decision adverse to the claimant, the Plan Administrator or Appeals Fiduciary shall provide to the claimant written notice of the denial which shall include:


(a)    the specific reasons for the decision;


(b)    specific references to the pertinent provisions of the Plan on which the decision is based;


(c)    a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant’s claim for benefits; 


(d)    an explanation of the Plan’s claim review procedures, and the time limits applicable to such procedures, including a statement of the claimant’s right to bring an action under Section 502(a) of ERISA following the denial of the claim upon review; 


(e)    in the case of a claim for benefits due to the Participant’s Disability, if  an internal rule, guideline, protocol or other similar criterion is relied upon in making the adverse 


24


Exhibit 10.68



determination, either the specific rule, guideline, protocol or other similar criterion; or a statement that such rule, guideline, protocol or other similar criterion was relied upon in making the decision and that a copy of such rule, guideline, protocol or other similar criterion will be provided free of charge upon request;


(f)    in the case of a claim for benefits due to a Participant’s Disability, if a denial of the claim is based on a medical necessity or experimental treatment or similar exclusion or limit, an explanation of the scientific or clinical judgment for the denial, an explanation applying the terms of the Plan to the claimant’s medical circumstances or a statement that such explanation will be provided free of charge upon request; and 


(g)    in the case of a claim for benefits due to a Participant’s Disability, a statement regarding the availability of other voluntary alternative dispute resolution options.


10.9    Appeals Fiduciary.  For purposes of this Section 10, the term “Appeals Fiduciary” means an individual or group of individuals appointed to review appeals of claims for benefits payable due to a Participant’s Disability.



SECTION 11
ADOPTION BY AFFILIATES    


Any Affiliate may, in the future, adopt this Plan provided that proper action is taken by the Board of Directors of such Affiliate and the participation of such Affiliate is approved by the Board of Directors.  The administrative powers and control of the Company, as provided in this Plan, shall not be deemed diminished under this Plan by reason of the participation of any Affiliate and the administrative powers and control granted hereunder to the Plan Administrator shall be binding upon any Affiliate adopting this Plan.  Each Affiliate adopting this Plan shall have the obligation to pay the benefits to its employees hereunder and no other Affiliate shall have such obligation and any failure by a particular Affiliate to live up to its obligations under this Plan shall have no effect on any other Affiliate.  Any Affiliate may discontinue this Plan at any time by proper action of its board of directors subject to the provisions of Section 9.






[Remainder of Page Intentionally Left Blank]


25


Exhibit 10.68





IN WITNESS WHEREOF, the Company has caused this instrument to be executed as of November 18, 2016.




TYSON FOODS, INC.




By: /s/ Mary Oleksiuk                 


Title:    Executive Vice President & Chief Human Resource Officer














26



Exhibit 10.68



APPENDIX A


Mandatory Features of Grantor Trust


1.    The trust shall be immediately funded by the Plan Sponsors, to the extent of their proportionate shares, with cash or cash equivalents in an amount equal to the present value Actuarial Equivalent of unpaid SERP benefits accrued in favor of Participants determined as of the immediately preceding December 31st.  


2.    Within thirty (30) days after each subsequent December 31st, the Plan Sponsors shall make additional contributions, to the extent of their proportionate shares, to the trust in an amount equal to the change in the present value Actuarial Equivalent of unpaid SERP benefits accrued in favor of Participants as of that December 31st when compared to the immediately preceding December 31st.  


3.    The factors used in determining the Actuarial Equivalent of unpaid SERP benefits for all required funding contributions to the trust shall be the same mortality and/or empirical table(s) and rate(s) of interest as in use by the Plan Administrator six (6) months prior to the effective date of the Change of Control.  


4.    The Plan Sponsors also shall fund and maintain a separate reserve under the trust from which the trustee shall charge its expenses.  The reserve shall be maintained at a level of no less than $50,000.


5.    All portions of the trust shall be irrevocable and trust funds may only be used to provide for the payment of SERP benefits to Participants, to pay the expenses of the trustee and to satisfy the claims of the creditors of a Plan Sponsor in the event of insolvency; provided, however, that in event of an insolvency, only the trust funds attributable to the insolvent Plan Sponsor shall be subject to the claims of the creditors of that Plan Sponsor.


6.    The trustee shall have the sole discretionary authority to invest the trust funds and shall do so as if the trustee were subject to the provisions of Part 4, Title 1 of ERISA.


7.    The trust shall provide a mechanism for Participants to make a claim for payment of SERP benefits directly to the trustee and the trustee shall be granted the authority to approve payments of SERP benefits to a claiming Participant provided adequate evidence of entitlement to the benefit is demonstrated by the Participant.


8.    The initial trustee and any successor trustee appointed to serve as trustee of the trust shall be a bank that is authorized to exercise trust powers and has a capital of at least $250,000,000.


9.    The actual provisions of the trust agreement shall be in such form as negotiated between the Plan Sponsors and the trustee; provided, however, that no such provisions shall contradict or otherwise diminish the substance of the features of the trust described hereinabove.