exv10w2






Exhibit 10.2




BOB EVANS FARMS, INC.




2010 DIRECTOR DEFERRAL PROGRAM



Effective May 26, 2010



 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 

	ARTICLE I
	 	DEFINITIONS	 	 	1	 
	 
	 	 	 	 	 	 
	ARTICLE II
	 	PARTICIPATION	 	 	3	 
	2.01.
	 	Eligibility and Election to Participate	 	 	3	 
	2.02.
	 	Designation of Beneficiary	 	 	4	 
	 
	 	 	 	 	 	 
	ARTICLE III
	 	CONTRIBUTIONS	 	 	5	 
	3.01.
	 	In General	 	 	5	 
	 
	 	 	 	 	 	 
	ARTICLE IV
	 	MEMBERS’ ACCOUNTS; ALLOCATIONS	 	 	5	 
	4.01.
	 	Members’ Accounts	 	 	5	 
	4.04.
	 	Calculating Net Gains or Losses; Crediting of Accounts	 	 	6	 
	 
	 	 	 	 	 	 
	ARTICLE V
	 	INVESTMENT FUNDS	 	 	7	 
	5.01.
	 	In General	 	 	7	 
	5.02.
	 	Phantom Share Investment Fund	 	 	7	 
	5.03.
	 	Stock Award Account	 	 	7	 
	 
	 	 	 	 	 	 
	ARTICLE VI
	 	AMOUNT AND DISTRIBUTION OF BENEFITS	 	 	8	 
	6.01.
	 	In General — Time and Form of Distribution	 	 	8	 
	6.02.
	 	Changes to Time and Form of Distribution	 	 	9	 
	6.03.
	 	Vested Benefits	 	 	10	 
	6.04.
	 	Effect of Change in Control on Phantom Shares	 	 	10	 
	 
	 	 	 	 	 	 
	ARTICLE VII
	 	PLAN COMMITTEE	 	 	10	 
	7.01.
	 	Appointment of Committee	 	 	10	 
	7.02.
	 	Powers and Duties	 	 	11	 
	7.03.
	 	Actions by the Committee	 	 	11	 
	7.04.
	 	Interested Committee Members	 	 	11	 
	7.05.
	 	Indemnification	 	 	12	 
	7.06.
	 	Conclusiveness of Action	 	 	12	 
	7.07.
	 	Payment of Expenses	 	 	12	 
	 
	 	 	 	 	 	 
	ARTICLE VIII
	 	AMENDMENT TO THE PLAN	 	 	12	 
	8.01.
	 	Right to Amend	 	 	12	 
	8.02.
	 	Amendment Procedure	 	 	13	 
	 
	 	 	 	 	 	 
	ARTICLE IX
	 	TERMINATION OF THE PLAN	 	 	13	 
	9.01.
	 	Right to Terminate	 	 	13	 
	9.02.
	 	Plan Merger and Consolidation	 	 	13	 
	9.03.
	 	Successor Employer	 	 	13	 
	 
	 	 	 	 	 	 
	ARTICLE X
	 	UNFUNDED PLAN	 	 	13	 
	 
	 	 	 	 	 	 
	ARTICLE XI
	 	MISCELLANEOUS	 	 	14	 
	11.01.
	 	Voluntary Plan	 	 	14	 






 









 






	 	 	 	 	 	 	 

	11.02.
	 	Non-alienation of Benefits	 	 	14	 
	11.03.
	 	Inability to Receive Benefits	 	 	14	 
	11.04.
	 	Lost Members	 	 	14	 
	11.05.
	 	Limitation of Rights	 	 	14	 
	11.06.
	 	Invalid Provision	 	 	15	 
	11.07.
	 	Governing Law	 	 	15	 
	11.08.
	 	Code §409A	 	 	15	 
	11.10
	 	Recoupment	 	 	15	 






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BOB EVANS FARMS, INC.




DIRECTOR DEFERRAL PROGRAM


Effective May 26, 2010, the Corporation adopts this Plan for the purpose of allowing Directors to
defer Compensation and Stock Awards as described herein. This Plan is intended to be an unfunded,
nonqualified program of deferred compensation within the meaning of Title I of ERISA.




ARTICLE I

DEFINITIONS



Whenever used in this Plan, the following words and phrases will have the meanings given below.
Also, the singular form of any term will include the plural, the plural form will include the
singular, the masculine pronoun will include the feminine and the feminine pronoun will include the
masculine. Other words and phrases also may be defined in the Plan text.



Accounts means (a) the Cash Account established for each Participant under Section 4.01(a),
(b) the Phantom Share Suspense Account established for all Participants under Section 4.01(b), (c)
the Phantom Share Investment Fund established for each Participant under Section 4.01(c); and (d)
the Stock Award Account established for each Participant who elects to defer Stock Awards under
Section 4.01(d). The Committee may establish such sub-accounts as may be necessary or appropriate
for the administration of the Plan.



Beneficiary means the person designated by a Participant under Section 2.02 to receive any
death benefits payable under Section 6.01.



Board means the Corporation’s board of directors.



Change in Control means as defined in the Bob Evans Farms, Inc. 2010 Equity and Cash
Incentive Plan, as may be amended from time to time.



Code means the Internal Revenue Code of 1986, as amended.



Committee means the Plan Committee described in Article VII.



Compensation means total cash retainers, meeting fees and other compensation paid to a
Participant for services performed for the Corporation.



Deferral Election Form means a written or electronic Deferral Election Form and/or Stock
Award Deferral Election Form that each Director completes to specify the portion of his or her
Compensation and Stock Awards to be deferred under the Plan.



Director means each non-employee member of the Board.



Effective Date means May 26, 2010.



ERISA means the Employee Retirement Income Security Act of 1974, as amended.







 









 







Fiscal Year Compensation means cash compensation (a) relating to a period of service that
is coextensive with one or more consecutive taxable years of the Corporation, of which no amount is
paid or payable during the taxable year(s) of the Corporation constituting the period of service
and (b) that is designated by the Committee as “Fiscal Year Compensation” under this Plan.



Investment Funds means the funds established by the Committee under Article V to measure
the investment gains and losses attributable to each Participant’s Accounts, and includes the
Phantom Share Investment Funds.



Participant means a Director who is participating in the Plan as provided in Section 2.01.



Performance-Based Compensation means cash compensation (a) the amount of which, or the
entitlement to which, is contingent on the satisfaction of organizational or individual performance
criteria relating to a performance period of at least 12 consecutive months, provided that such
criteria have been established in writing by not later than 90 days after the commencement of the
period of service to which the criteria relates and the outcome is substantially uncertain at the
time the criteria are established and (b) that has been designated by the Committee as
“Performance-Based Compensation” under this Plan. Any Performance-Based Compensation must meet the
requirements of Code §409A and Treasury Regulation §1.409A-1(e).



Phantom Share means the notional investment into which amounts held in the Phantom Share
Suspense Account are credited to the Phantom Share Investment Fund or Stock Award Account of each
Participant, which will reflect a deemed investment in Shares.



Phantom Share Suspense Account means the non-interest-bearing Account to which deferrals of
Compensation are allocated pursuant to Section 3.01(a) prior to being credited to Participants’
Phantom Share Investment Funds.



Phantom Share Investment Fund means the separate Investment Fund maintained on behalf of
each Participant who has elected to have Compensation converted into Phantom Shares and pursuant to
which Phantom Shares are credited.



Plan means the Bob Evans Farms, Inc. 2010 Director Deferral Program, as described in this
document and as it may be amended from time to time.



Plan Year means, with respect to the initial Plan Year, the period beginning on the
Effective Date and ending on December 31, 2010 and, for all subsequent plan years, the 12-month
period beginning on January 1 (and anniversaries of that date) while the Plan is in effect.



Separation from Service means a “separation from service” from the Corporation and all
entities with whom the Corporation would be considered a single employer within the meaning of Code
§§414(b) and (c), within the meaning of Treasury Regulation §1.409A-1(h).



Shares means the common shares, par value $0.01 of the Corporation.



Spouse or Surviving Spouse means an individual who is legally married to a Participant.







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Stock Award means an equity-based award granted pursuant to the Corporation’s equity
compensation plan after the Effective Date that the Committee, in its sole discretion, allows
Participants to defer pursuant to this Plan.



Stock Award Account means the separate Account maintained on behalf of each Participant who
has elected to defer Stock Awards, which will be credited with the number of Phantom Shares and/or
cash equal to the number of Shares and/or cash otherwise payable pursuant to the Stock Award.



Trust Agreement means the agreement, and any amendments to that agreement, between the
Corporation and the Trustee providing for the management, investment and disbursement of funds held
in the Trust Fund.



Trust Fund means the fund established under the Trust Agreement.



Trustee means the bank, trust company or individual designated by the Corporation to hold
and invest the Trust Fund and to pay Plan benefits and expenses authorized by the Committee.



Valuation Date means the last day of each calendar quarter during each Plan Year, or more
frequent dates if the Committee, in its sole discretion, decides that more frequent valuations are
needed for any reason.




ARTICLE II

PARTICIPATION



2.01. Eligibility and Election to Participate



(a) Eligibility. All Directors are eligible to participate in the Plan.



(b) Election to Participate.





(i) In General. Except as otherwise provided in this Section 2.01(b), each Director
may become a Participant (or continue or reinstate his or her active participation) in the
Plan for any Plan Year by electing to defer Compensation and/or Stock Awards to the Plan for
services to be performed during such Plan Year pursuant to a Deferral Election Form and by
submitting such form to the Committee by no later than December 31 of the immediately
preceding Plan Year.




(ii) First Year of Eligibility. In the discretion of the Committee, a Participant
who first becomes eligible to participate in the Plan during a Plan Year may elect to defer
any Compensation and/or Stock Awards designated by the Committee in its sole discretion
pursuant to a Deferral Election Form within 30 days after the date on which the Participant
is first eligible to participate in the Plan, with respect to any such Compensation and/or
Stock Awards to be paid for services to be performed after such election is made. For
purposes of this Section 2.01(b)(ii), a Participant is first eligible to participate in this
Plan only if the Participant is not a participant in any other agreement, method, program or
arrangement that, along with this Plan, would be treated as a single nonqualified deferred
compensation plan under Treasury Regulation §1.409A-1(c)(2).



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(iii) Fiscal Year Compensation. In the discretion of the Committee, a Participant
may make a separate deferral election with respect to any Fiscal Year Compensation pursuant
to a Deferral Election Form submitted to the Committee. Such election must be made no later
than the last day of the Corporation’s fiscal year immediately preceding the fiscal year
during which the Participant will perform the services for which such Fiscal Year
Compensation may be paid.




(iv) Performance-Based Compensation. In the discretion of the Committee, a
Participant may make a separate deferral election with respect to any Performance-Based
Compensation pursuant to a Deferral Election Form submitted to the Committee. Such election
must be made at least six months prior to the end of the performance period on which the
Performance-Based Compensation is based and meet any other requirement set forth in Treasury
Regulation §1.409A-2(a)(8); provided that in no event may an election to defer be made after
such Performance-Based Compensation has become readily ascertainable.




(v) Other Elections. In the discretion of the Committee, a Participant may make
such other deferral elections with respect to Compensation designated by the Committee in
its sole discretion at such other time or times permitted by Section 409A of the Code. Any
such deferral election will be made in a form acceptable to the Committee.




(vi) Evergreen Elections. A Participant’s deferral election(s) (or any modification
thereof) under this Section 2.01 will continue to apply to Compensation and/or Stock Awards
in future years (and become irrevocable on the applicable dates described above) unless and
until the Participant makes a new Deferral Election in accordance with Section 2.01(b)(i),
2.01(b)(iii) or 2.01(b)(iv).


(c) Cancellation of Deferrals. A Participant will not be permitted to change, terminate or
revoke the Participant’s deferral elections for such year after the applicable deadline set forth
in Section 2.01(b).



(d) Limitations on Elections. A Participant may not make an election to defer Compensation
to the Phantom Share Suspense Account if, at the time the election is made, the Participant is in
possession of “material non-public information” (within the meaning of Section 10b of the
Securities Exchange Act of 1934).



2.02. Designation of Beneficiary



(a) Each Participant may designate one or more Beneficiaries by completing a written or electronic
beneficiary designation form prescribed by the Committee. Unless a Participant who designates more
than one Beneficiary also specifies the sequence or the portion of the death benefit to be paid to
each Beneficiary, the death benefit will be paid in equal shares to all named Beneficiaries.



(b) A Participant may change his or her Beneficiary at any time by completing a new beneficiary
designation form in accordance with such form’s instructions. No change of Beneficiary will be
effective until the revised form is received by the Committee. The identity of
a Participant’s Beneficiary will be based only on the designation in the form described in this
section and will not be inferred from any other evidence.




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(c) If a Participant has not made an effective Beneficiary designation or if the Participant’s
Beneficiary dies before the Participant, any Plan death benefit will be paid to the Participant’s
Surviving Spouse or, if there is no Surviving Spouse, to the Participant’s estate. Any minor’s
share of a Plan death benefit will be paid to the adult who has been appointed to act as the
minor’s legal guardian and who has assumed custody and support of that minor.



(d) The Participant and the Beneficiary (and not the Committee) are responsible for ensuring that
the Committee has the Beneficiary’s current address.




ARTICLE III

CONTRIBUTIONS



Section 3.01. In General.



At the times and in the manner prescribed in Section 2.01(b), each Participant may elect to defer
up to:



(a) 100 percent of the Participant’s Compensation, which will be credited to the Participant’s Cash
Account or Phantom Share Suspense Account, as elected by the Participant at the time of deferral;
plus



(b) 100 percent of the Participant’s Stock Awards, which will be credited to the Participant’s
Stock Award Account as described in Section 4.01(d).



Section 3.02. No Changes to Allocation.



Deferrals elections regarding the contributions or allocations of Compensation to the Phantom Share
Suspense Account will be irrevocable for the Plan year to which such election relates and, subject
to any restrictions imposed by Section 16(b) of the Securities Exchange Act of 1934, as determined
by the Committee, changes in investment elections with respect to future crediting of amounts to
the Phantom Share Suspense Account may be made at the Participant’s discretion.




ARTICLE IV

PARTICIPANTS’ ACCOUNTS; ALLOCATIONS



4.01. Participants’ Accounts



(a) With respect to each Participant, the Committee will maintain a Cash Account to record: (i) the
Participant’s deferrals of Compensation elected to be contributed to the Cash Account pursuant to
Section 3.01(a), adjusted by the net income, gains or losses that are deemed attributable to those
amounts (as described in Section 4.02(a)); minus (ii) any distributions made from this Account.



(b) With respect to all Participants, the Committee will maintain a Phantom Share Suspense Account
to record: (i) the aggregate amounts that are deferred into the Plan by Participants under


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Section
3.01(a) for investment into the Phantom Share Investment Fund; minus (ii) any distributions made
from this Account into the Phantom Share Investment Funds of Participants. Amounts are credited to
the Phantom Share Suspense Account pending allocation to Phantom Share Investment Fund of each
Participant. Once funds are placed into the Phantom Share Suspense Account, Participants will have
no further control over such amounts, no such funds may be withdrawn by Participants, no such funds
may be transferred to any other Account established under the Plan, and no funds may be moved from
any other Account established under the Plan into the Phantom Share Suspense Account.



(c) With respect to each Participant, the Committee will maintain a Phantom Share Investment Fund
to record the Phantom Shares credited to the Participant pursuant to Section 5.02.



(d) With respect to each Participant, the Committee will maintain a Stock Award Account to record
the Stock Awards deferred by such Participant pursuant to Section 3.01(b). Stock Awards will be
credited to the Stock Award Account once the Stock Award vests. Until the Stock Award is credited
to the Stock Award Account, the Stock Award will remain subject to the terms and conditions of the
plan pursuant to which the Stock Award was granted and, if applicable, the associated award
agreement.



4.02. Calculating Net Gains or Losses; Crediting of Accounts



(a) Cash Account. With respect to the Cash Accounts of Participants, as of each Valuation
Date and except as provided in the Trust Agreement, the Trustee will determine the value of each
Investment Fund established by the Committee under Section 5.01. The value of each Investment Fund
will be calculated as if it had been invested as directed by Participants. Any increase or
decrease in the value of each Investment Fund, less associated administrative and other Plan
expenses described in Section 7.07, will be allocated to the relevant Accounts of each Participant
who was deemed to have invested in that fund since the preceding Valuation Date. This allocation
will be based on (a) the value of the Investment Fund on the preceding Valuation Date and (b) the
portion of that value that is deemed to have been comprised of the Participant’s Cash Account.



(b) Phantom Share Suspense Account. With respect to the Phantom Share Suspense Account, as
of each Valuation Date, the Trustee will convert the amount deferred by each Participant into the
Phantom Share Suspense Account into Phantom Shares by dividing the amount deferred by each
Participant by the closing price of a Share on the date of conversion and crediting the resulting
number of whole and fractional Phantom Shares to the Phantom Share Investment Funds as provided in
Section 5.02. Notwithstanding the foregoing, in the event of a Participant’s Separation from
Service or death prior to a Valuation Date, the amount of Compensation deferred by the Participant
and allocated to the Phantom Share Suspense Account shall be converted into Phantom Shares as
provided in this Section 4.04 and credited to the Participant’s Phantom Share Investment Fund as of
that date.



(c) Stock Award Account. The Stock Award Account will be credited with Phantom Shares and
cash as described in Section 5.03.




6









 








ARTICLE V

INVESTMENT FUNDS



5.01. In General. Except as provided in Section 5.02, below, the Committee will establish
and maintain one or more Investment Funds that will be used to measure the value of each
Participant’s Accounts; provided that neither the Group nor the Trustee is obliged to make the
investments chosen by any Participant. Each Participant must select the Investment Fund(s) that
will be used to measure the value of his or her Accounts by completing the appropriate section of
the applicable Deferral Election Form. Rules and regulations relating to investment selections,
including the frequency with which investment selections may be changed and the minimum percentage
of a Participant’s Accounts that may be treated as invested in each Investment Fund, will be
established, from time to time, by the Committee and announced to Participants.



5.02. Phantom Share Investment Fund. Shares deemed to have been purchased pursuant to
Section 4.02(b) will be credited to the Phantom Share Investment Fund of each Participant who has
elected to defer Compensation to the Phantom Share Suspense Account for the relevant period based
on the ratio that the amount of Compensation deferred to the Phantom Share Suspense Account by each
Participant for such period bears to the aggregate balance of the Phantom Share Suspense Account
immediately before its conversion into Phantom Shares. The crediting of Phantom Shares to the
Phantom Share Investment Fund shall be subject to the following:



(a) A Participant may not make an election to: (i) reallocate amounts invested in the Phantom Share
Investment Fund into any other Account under the Plan; or (ii) reallocate amounts credited to any
other Account under the Plan into the Phantom Share Investment Fund.



(b) Unless otherwise determined by the Committee, any cash dividends or other dividends payable
with respect to Shares will be credited to each Participant based on the Phantom Shares held in
such Participant’s Phantom Share Investment Fund and be used to effect the deemed purchase of
additional Phantom Shares as described in Section 4.02(b).



(c) The number of Phantom Shares credited to a Participant’s Phantom Share Investment Fund will be
adjusted from time to time to reflect stock splits, stock dividends or other changes in the Shares
resulting from a change in the Corporation’s capital structure, as determined by the Committee in
its sole discretion.



5.03. Stock Award Account. Stock Awards deferred into the stock Award Account may not be
invested in any Investment Funds; however, the Stock Award Account will be credited with a number
of Phantom Shares and/or the amount of cash equal to the number of Shares and/or cash otherwise
deliverable or payable pursuant to the Stock Award. The crediting of Phantom Shares to the Stock
Award Account shall be subject to the following:



(a) Unless otherwise determined by the Committee, any cash dividends or other dividends payable
with respect to Shares will be credited to each Participant based on the Phantom Shares held in
such Participant’s Stock Award Account.




7









 







(b) The number of Phantom Shares credited to a Participant’s Stock Award Account will be adjusted
from time to time to reflect stock splits, stock dividends or other changes in the Shares resulting
from a change in the Corporation’s capital structure, as determined by the Committee in its sole
discretion.




ARTICLE VI

AMOUNT AND DISTRIBUTION OF BENEFITS



6.01. In General — Time and Form of Distribution



(a) Cash Account. A Participant’s Cash Account (and earnings related thereto) will be
distributed in a lump sum within 60 days following the earlier of (i) the first day of the calendar
year specified in the Participant’s Deferral Election Form, (ii) the Participant’s death, or (iii)
the date of the Participant’s Separation from Service (including by reason of disability).





(i) In-Service Distributions. If a distribution under this Section 6.01(a) is based
on the first day of the calendar year specified in the Participant’s Deferral Election Form,
such distribution will be made in a lump sum or up to 10 substantially equal annual
installments, as elected by the Participant in the applicable Deferral Election Form.
Notwithstanding the foregoing, if a Participant elects annual installments under this
subparagraph (i), but Separates from Service prior to receiving all of those annual
installments, any remaining balance will be paid in accordance with subparagraph (iii)
below.




(ii) Distributions Upon Death or Disability. If a distribution under this Section
6.01(a) is due to the Participant’s death, such distribution will be made in a lump sum.




(iii) Distributions Upon Separation from Service. If a distribution under this
Section 6.01(b)(i) is due to the Participant’s Separation from Service (including by reason
of disability), and the present value of the Participant’s Cash Account is at least $25,000
as of the Valuation Date immediately preceding the Participant’s Separation from Service,
then such distribution will be made in a lump sum or up to 20 substantially equal annual
installments, as elected by the Participant in the applicable Deferral Election Form. If a
distribution under this Section 6.01(a) is due to the Participant’s Separation from Service
under any other circumstances, such distribution will be made in a lump sum.




Notwithstanding the foregoing, if a Participant does not make a timely election relating to
a distribution under this Section 6.01(a), then such distribution will be made in a lump
sum.


(b) Phantom Share Investment Fund. A Participant will receive a distribution from his or
her Phantom Share Investment Fund within 60 days following the earlier of the Participant’s
Separation from Service or death. The Participant will receive whole Shares, with any fractional
Shares being distributed in cash based on the fair market value of a Share on the date of
distribution. In the distribution, the Trustee will deliver Shares held in the Trust or Shares
purchased on the open market and the number of whole Shares distributed and fractional Shares
settled in cash will equal the number of Phantom Shares credited to such Participant’s Phantom
Share Investment Fund on the date of distribution.




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(i) Distributions Upon Death. If a distribution under this Section 6.01(b) is due
to the Participant’s death, such distribution will be made in a lump sum.




(ii) Distributions Upon Separation from Service. If a distribution under this
Section 6.01(b) is due to the Participant’s Separation from Service, the distribution will
be made in the same number of installments as elected by the Participant under Section
6.01(a)(iii) and if no election was made, the distribution will be made in a lump sum.


(c) Stock Award Account. A Participant will receive a distribution from his or her Stock
Award Account within 60 days following the earlier of the Participant’s Separation from Service or
death. In the distribution, the Trustee will deliver Shares, from the equity plan pursuant to
which the Stock Award was granted and held in the Trust equal to the number of Phantom Shares
credited to the Participant’s Stock Award Account, and cash equal to the amount of cash credited to
the Participant’s Stock Award Account, each on the date of distribution.





(i) Distributions Upon Death. If a distribution under this Section 6.01(c) is due
to the Participant’s death, such distribution will be made in a lump sum.




(ii) Distributions Upon Separation from Service. If a distribution under this
Section 6.01(c) is due to the Participant’s Separation from Service, the distribution will
be made in the same number of installments as elected by the Participant under Section
6.01(a)(iii) and if no election was made, the distribution will be made in a lump sum


(d) Limited Cashout. Notwithstanding anything in this Plan to the contrary, the
Corporation, in its sole discretion, may make a lump sum distribution of a Participant’s Cash
Account under the Plan if: (i) the distribution results in the termination and liquidation of the
entirety of the Participant’s interest under the Plan and all agreements, methods, programs or
other arrangements with respect to which deferrals of compensation are treated as having been
deferred under a single nonqualified deferred compensation plan under Treasury Regulation
§1.409A-1(c)(2); and (ii) the aggregate distribution under the arrangements is not greater than the
applicable dollar amount under Code §402(g)(1)(B).



(e) Full Discharge. Once a Participant’s Accounts have been fully distributed, the
Corporation, all other Group Participants, the Committee and the Plan will have no further
liability to the Participant or, if appropriate, to his or her Beneficiary.



6.02 Changes to Time and Form of Distribution



Participants will be permitted to change the Participant’s distribution elections with respect to
the Participant’s Cash Account if such change meets the following requirements:



(a) A Participant may change the form or timing of distribution by submitting an election on a new
Deferral Election Form; provided, however, that such change must meet the following requirements:
(i) the election may not take effect until at least 12 months after the date on which such election
is made; (ii) the payment with respect to which such election is made must be deferred (other than
a distribution upon death or Disability) for a period of not less than five years from the date
such payment would otherwise have been paid; and (iii) any subsequent election affecting a
distribution at a specified time (or pursuant to a fixed schedule) may not be


9









 






made less than 12
months before the date the payment is scheduled to be paid. A subsequent election may be changed
at any time before the last permissible date for making such election, as described in this Section
6.02.



(b) Once the distribution of an Account to a Participant begins, no changes to the Participant’s
distribution election with respect to such Account will be permitted.



Notwithstanding the foregoing, a Participant may change the time or form of distribution of such
Participant’s Phantom Share Investment Fund only with the express, written consent of the
Committee.



6.03. Vesting



(a) Cash Account. A Participant will always be 100 percent vested in the balance of the
Participant’s Cash Account.



(b) Phantom Share Suspense Account. Participants will be fully vested in deferrals of
Compensation allocated to the Phantom Share Suspense Account and in Phantom Shares credited to the
Phantom Share Investment Fund.



(c) Stock Award Account. Participants will be fully vested in their Stock Award Accounts



6.04. Effect of Change in Control on Phantom Shares.




In the event of a Change in Control, the Board, in its sole discretion, may elect to convert the
Phantom Shares credited to the Phantom Share Investment Funds and Stock Award Accounts of
Participants to cash based on the fair market value of a Share on the date of conversion or treat
any undistributed Phantom Shares credited to the Phantom Share Investment Funds and Stock Award
Accounts of Participants in the same manner as the Shares in the Change in Control.




ARTICLE VII

PLAN COMMITTEE



7.01. Appointment of Committee



The Board will appoint a committee of at least three persons to administer the Plan. A Committee
member may resign at any time by sending written notice to the Board specifying the effective date
of his or her termination (which must always be prospective). Vacancies in the Committee will be
filled by the Board as the need arises. Also, in its sole discretion, the Board may remove any
Committee member at any time by giving written notice of removal to the affected Committee member
and specifying the effective date of that action (which must always be prospective).




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7.02. Powers and Duties



The Committee is fully empowered to exercise complete discretion to administer the Plan and to
construe and apply all of its provisions. The Committee may delegate any of its powers and duties
to any other person or organization. These powers and duties include:



(a) Determining the value of benefits under this Plan;



(b) Resolving disputes that may arise with regard to the rights of Directors, Participants and
their legal representatives or Beneficiaries under the terms of the Plan;



(c) Obtaining from each Participant and Beneficiary information that the Committee needs to
determine any Participant’s or Beneficiary’s rights and benefits under the Plan. The Committee may
rely conclusively upon any information furnished by a Participant or a Beneficiary;



(d) Compiling and maintaining all records it needs to administer the Plan;



(e) Upon request, furnishing the Corporation with reasonable and appropriate reports of its
administration of the Plan;



(f) Authorizing the Trustee to distribute all benefits that are payable under the Plan;



(g) Engaging legal, administrative, actuarial, investment, accounting, consulting and other
professional services that the Committee believes are necessary and appropriate;



(h) Authorizing the Deferral Election Form with respect to Participants’ elections to the Phantom
Share Suspense Account and, if necessary, Participants’ deferral elections to the Phantom Share
Suspense Account;



(i) Authorizing any change to a Participant’s distribution election with respect to the
Participant’s Phantom Share Investment Fund;



(j) Adopting rules and regulations for the administration of the Plan that are not inconsistent
with the terms of the Plan; and



(k) Doing and performing any other acts provided for in the Plan.




7.03. Actions by the Committee



The Committee may act at a meeting, or in writing without a meeting, by the vote or assent of a
majority of its members. The Committee will appoint one of its members to act as a secretary to
record all Committee actions. The Committee also may authorize one or more of its members to
execute papers and perform other ministerial duties on behalf of the Committee.




7.04. Interested Committee Participants



No member of the Committee may participate in any Committee action that directly affects that
member’s individual interest in the Plan. These matters will be determined by a majority of the
remainder of the Committee and if there are no disinterested members of the Committee, by the
entire Board.




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7.05. Indemnification



(a) The Corporation will indemnify and hold harmless any Committee member or employee who performs
services to or on behalf of the Plan (the “Indemnified Party”) against all liabilities and all
reasonable expenses (including attorney fees and amounts paid in settlement) incurred or paid in
connection with any threatened or pending action, suit or proceeding brought by any party in
connection with the Plan. However, this indemnification will not extend to any Indemnified Party
whose conduct in connection with the Plan is found to have been grossly negligent or wrongful.
This determination will be based on any final judgment rendered in connection with the action, suit
or proceeding complaining of the conduct or its effect or, if no final judgment is rendered, by a
majority of the Board or by independent counsel to whom the Board has referred the matter.



(b) The obligations under this section may be satisfied, in the Corporation’s discretion, through
the purchase of a policy or policies of insurance providing equivalent protection.




7.06. Conclusiveness of Action



Any action on matters within the discretion of the Committee will be conclusive, final and binding
upon all Participants and upon all persons claiming any rights hereunder, including Beneficiaries.




7.07. Payment of Expenses



Committee members will not be separately compensated for their services relating to the Plan.
However, the Corporation will reimburse Committee members for all appropriate expenses they incur
while carrying out their Plan duties.




ARTICLE VIII

AMENDMENT TO THE PLAN




8.01. Right to Amend



The Corporation may modify, alter or amend the Plan at any time. However, no amendment may affect
any Participant’s or Beneficiary’s vested rights accrued under the Plan before the effective date
of that amendment without the Participant or, if applicable, the Beneficiary’s consent.




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8.02. Amendment Procedure



The Board, an executive committee of the Board or other Board committee or any executive officer to
which or to whom the Board delegates discretionary authority over the Plan may exercise the
Corporation’s right to amend the Plan.




ARTICLE IX

TERMINATION OF THE PLAN




9.01. Right to Terminate



(a) The Corporation may terminate the Plan in whole or in part at any time by written action of its
Board. Each Participant affected by a full or partial Plan termination or by a complete
discontinuance of contributions will be 100 percent vested in the value of all of his or her
Accounts.



(b) In the event of a termination of the Plan, except as permitted under Treasury Regulation
§1.409A-3(j)(4)(ix), no amounts will be distributed until they are otherwise payable under the
terms of the Plan.




9.02. Plan Merger and Consolidation



If the Plan is merged into or consolidated with any other plan, each affected Participant will be
entitled to a benefit immediately after the merger, consolidation or transfer (determined as if the
surviving plan had then terminated) at least equal to the benefit he or she had accrued immediately
before the merger or consolidation (determined as if the Plan terminated immediately before that
merger or consolidation).




9.03. Successor Corporation



If any Corporation dissolves into, reorganizes, merges into or consolidates with another business
entity, provision may be made by which the successor will continue the Plan and Trust, in which
case the successor will be substituted for the Corporation under the terms and provisions of this
Plan and the Trust Agreement. The substitution of the successor for the Corporation will
constitute an assumption by the successor of all Plan liabilities and the successor will have all
of the powers, duties and responsibilities of the Corporation under the Plan.




ARTICLE X

UNFUNDED PLAN



Notwithstanding any Plan provision to the contrary, the Plan constitutes an unfunded, unsecured
promise by the Corporation to pay only those benefits that are accrued by Participants under the
terms of the Plan. The Corporation will not segregate any assets into a fund established
exclusively to pay Plan benefits unless the Corporation, in its sole discretion, establishes a
trust for the purpose of holding assets from which all or part of a Plan benefit may be paid. The
Corporation is not liable for the payment of Plan benefits that are actually paid from a trust
established for that purpose. However, the Corporation is obliged to pay any benefits not paid
from any trust. Participants, Beneficiaries and other persons claiming a Plan benefit through


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them
have only the rights of general unsecured creditors and do not have any interest in or right to any
specific asset of the Corporation. Nothing in this Plan constitutes a guaranty by the Corporation
or any other entity or person that their assets will be sufficient to pay Plan benefits.




ARTICLE XI

MISCELLANEOUS




11.01. Voluntary Plan



The Plan is purely voluntary on the part of the Corporation. None of the establishment of the
Plan, any amendment to it, the creation of any fund or account or the payment of any benefits may
be construed as giving any person (a) a legal or equitable right against the Corporation, the
Trustee or the Committee other than those specifically granted under the Plan or conferred by
affirmative action of the Committee in a manner that is consistent with the terms and provisions of
this Plan or (b) the right to be retained in the service of the Corporation. All Participants
remain subject to discharge to the same extent as though this Plan had not been established.




11.02. Non-alienation of Benefits



The right of a Participant, Beneficiary or any other person to receive Plan benefits may not be
assigned, transferred, pledged or encumbered except as provided in the Participant’s Beneficiary
designation, by will or by applicable laws of descent and distribution. Any attempt to assign,
transfer, pledge or encumber a Plan benefit will be null and void and of no legal effect.




11.03. Inability to Receive Benefits



Any Plan benefit payable to a Participant or Beneficiary who is declared incompetent will be paid
to the guardian, conservator or other person legally charged with the care of his or her person or
estate. Any payment made under this section will completely discharge the Plan’s
liability with respect to that payment. The Committee is not required to see to the application of
any distribution made to any person.




11.04. Lost Participants



Each Participant is obliged to keep the Committee apprised of his or her current mailing address
and that of his or her Beneficiary. The Committee’s obligation to search for any Participant or
Beneficiary is limited to sending a registered or certified letter to the Participant’s or
Beneficiary’s last known address.




11.05. Limitation of Rights



Nothing in the Plan, expressed or implied, is intended or may be construed as conferring upon or
giving to any person, firm or association (other than Participants, their Beneficiaries and their
successors in interest) any right, remedy or claim under or by reason of this Plan.




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11.06. Invalid Provision



If any provision of this Plan is held to be illegal or invalid for any reason, the Plan will be
construed and enforced as if the offending provision had not been included in the Plan. However,
that determination will not affect the legality or validity of the remaining parts of this Plan.




11.07. Governing Law



The Plan will be governed by and construed in accordance with the laws of the United States and, to
the extent applicable, the laws of Ohio.




11.08 Code §409A



(a) It is intended that the Plan comply with Code §409A and the Treasury Regulations promulgated
thereunder (and any subsequent IRS notices or guidance), and this Plan will be interpreted,
administered and operated accordingly. Nothing herein will be construed as an entitlement to or
guarantee of any particular tax treatment to any Participant.



(b) The Corporation may accelerate the time or schedule of a distribution of amounts payable to a
Participant at any time the Plan fails to meet the requirements of Code §409A and the Treasury
Regulations promulgated thereunder. Such payment may not exceed the amount required to be included
in income as a result of the failure to comply with the requirements of Code §409A and the Treasury
Regulations promulgated thereunder.




11.10 Recoupment



The right of any person to payment under this Plan shall be subject to the Bob Evans Farms, Inc.
Executive Compensation Recoupment Policy, as may be amended from time to time, or any successor or
replacement policy, or the terms of any agreement between the Corporation and a Participant
regarding the recoupment of compensation.





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